Railroad Car Lease Agreement (2009)Full Document 

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TRINITY INDUSTRIES LEASING COMPANY
RAILROAD CAR LEASE AGREEMENT

July BK TJ

 

This Agreement dated as of the 1st day June, 2009 (this ‘Agreement”), between Trinity Industries Leasing Company, a Delaware corporation, with its principal office at 2525 Stemmons Freeway, Dallas, Texas 75207 (“TILC”, and whether as principal on behalf of itself as lessor or as agent for the lessor as contemplated in Article 30, the “Lessor”) and Highwater Ethanol, LLC, a Minnesota limited liability company, with its principal office at 24500 U.S. Highway 14, Lamberton, Minnesota 56152

, as lessee (“Lessee”).

 

In consideration of the mutual terms and conditions hereinafter set forth, the parties hereto hereby agree as follows:

 

ARTICLE 1


LEASE AGREEMENT

 

Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor, on the terms and conditions set forth herein, the railroad cars (herein collectively called the “cars” and separately a “car”) set out and identified in the Rider or Riders hereto and such additional Riders as may from time to time be executed by the parties incorporating the terms of this Agreement. Each Rider shall set forth a brief description of the car or cars covered thereby, including such facts as the number of cars, the Association of American Railroads (“AAR”) or the United States Department of Transportation (“DOT”) specifications, rent, the term throughout which the car or cars shall remain in Lessee’s service and such other information as may be agreed by the parties. Lessor and Lessee agree that each Rider hereto shall constitute a separate lease which incorporates the terms of this Agreement. For the purposes of this Agreement, “Lease” shall mean the lease transaction with respect to a particular car or cars evidenced by the related Rider incorporating the terms of this Agreement. All cars leased pursuant to a Rider are subject to the terms of this Agreement and such additional terms as are set forth in the Rider applicable thereto. Each Rider shall be severable from any other cars or Riders relating to this Agreement and shall become a separate Lease which is separately transferable for all purposes. It is the intent of all parties to this Agreement to characterize this Agreement as a “true lease” (as distinguished from a financing arrangement for the Lessee’s acquisition of ownership of the subject cars).

 

ARTICLE 2

 

DELIVERY

 

Lessor agrees to deliver or cause to be delivered to Lessee, each car being subjected to a Lease pursuant to a Rider and Lessee agrees to accept such delivery and lease such cars under the related Lease hereunder, in each case on the date and at the location specified in the related Rider (and subject to any other delivery conditions or requirements that may be so specified) it being understood the Lessee shall be responsible for any losses caused to the Lessor for Lessee’s failure to accept delivery where the cars so delivered meet the conditions and requirement

 

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provided in this Agreement. Each car shall be deemed to be delivered to the Lessee on the date upon which it is received or otherwise deemed delivered pursuant to the related Rider, except that any car which is already in Lessee’s service under a predecessor expiring agreement (other than this Agreement) or a predecessor agreement being terminated in connection with the parties’ entering into this Agreement shall be deemed delivered to Lessee hereunder immediately upon the expiration or termination of such other agreement. Lessor shall be excused from any agreement to deliver the subject cars, and Lessor shall not be liable, for any causes beyond the reasonable control of Lessor (including, but not limited to, delays caused by fire, labor difficulties, delays of carriers

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