Exhibit 10.5
LEASE AND SUBLEASE
THIS LEASE, made and entered into effective as of June 1, 1998 by and
between XXXXXXX, XXXXXXXXXXXX, a Delaware corporation, with principal offices
and place of business at 00000 XxXxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000
("Landlord"), and THE ANDERSONS, INC., an Ohio corporation with principal
offices and place of business at 000 X. Xxxxxx Xxxxx, P. O. Xxx 000, Xxxxxx, XX
00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of that certain real property described
in the attached Exhibit A, together with a grain facility and other buildings,
fixtures, improvements, machinery, equipment, rolling stock, and trackage in the
City of Maumee, Xxxxx County, Ohio (hereinafter referred to as the "Maumee
Facility"); and
WHEREAS, Landlord owns a leasehold interest in the real estate
described in the attached Exhibit B, together with a grain facility and other
buildings, fixtures, improvements, machinery, equipment, rolling stock, located
thereon, located in the City of Toledo, Lucas County, Ohio (hereinafter referred
to as the "Toledo Facility") (the Maumee Facility and the Toledo Facility shall
collectively be referred to as the "Facilities") under the terms of a certain
Lease dated April 1, 1978 by and between Xxxxxxx, Xxxxxxxxxxxx, as lessee, and
the Xxxxxx-Xxxxx County Port Authority, as lessor, as supplemented by a
Supplemental Lease dated March 1, 1982, by a Second Supplemental Lease dated as
of June 1, 1983, by a Third Supplemental of Lease dated as of April 1, 1992 and
by a Fourth Supplemental Lease dated as of May 15, 1993 (hereinafter
collectively referred to as the "IRB Lease") as assigned to National City Bank,
Northwest as Trustee, (successor to Ohio Citizens Bank which was formerly known
as The Ohio Citizens Trust Company) (the "IRB Lease Trustee"); and
WHEREAS, Landlord leases certain real property located adjacent to the
Toledo Facility, consisting of approximately 3.08 acres, as shown on the site
plan attached hereto as Exhibit C (hereinafter referred to as the "Toledo
Railroad Property"), under the terms of that certain lease dated May 1, 1979,
Property No. 52168, by and between the Norfolk and Western Railway Company, as
lessor, and Xxxxxxx, Xxxxxxxxxxxx, as lessee (hereinafter referred to as the
"Toledo Railroad Lease"); and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to
lease from Landlord, the Maumee Facility on the terms, covenants and conditions
hereinafter set forth; and
WHEREAS, Landlord desires to sublease to Tenant and Tenant desires to
sublease from Landlord the Toledo Facility and the Railroad Property, on the
terms, covenants and conditions hereinafter set forth; and
WHEREAS, Landlord and Tenant have entered into a Marketing Agreement
dated June 1, 1998 (the "Marketing Agreement"), under which Tenant shall use the
Facilities for the primary purpose of originating grain in the Toledo and
Maumee, Ohio area;
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions hereinafter set forth, the parties agree as follows:
1. DEMISE
(a) Lease of the Maumee Facility. Landlord hereby leases the
Maumee Facility (which includes the real estate described in Exhibits A) and the
buildings, fixtures, improvements, machinery, equipment, rolling stock, and
trackage located thereon, including, but not limited to, the personal property
listed on Exhibit D attached hereto, (the "Maumee Personal Property") and
Landlord hereby subleases to Tenant the personal property, described on the
attached Exhibit D, which is subject to the IRB Lease (the "Maumee IRB Personal
Property") and is located on that certain real property in Maumee, Ohio
described on the attached Exhibit A as Parcel I and Parcel II, to Tenant, and
Tenant hereby leases and subleases, respectively, the same from Landlord,
subject however, to:
(i) Any state of facts an accurate survey may show.
(ii) Covenants, restrictions, easements, agreements
and reservations listed in Exhibit E, whether or not of record
(the "Maumee Permitted Exceptions"), and the standard
exceptions contained in a standard title policy;
(iii) Building, platting and zoning ordinances, State
and Federal regulations;
(iv) Minerals and mineral rights reserved to the
State of Ohio or other parties;
(v) Taxes and installments of special assessments not
delinquent provided the same shall be paid as hereinafter
provided; and
(vi) Permitted encumbrances hereinafter described,
to be used primarily for the purpose of grain handling, and related activities,
and for no other purpose, without the express prior written consent of Landlord.
(b) Assiqnment of Maumee Aqreements. During the term hereof,
Landlord hereby assigns to Tenant, its rights, title and interest to those
certain railroad agreements, copies of which are attached hereto as Exhibit F
(the "Maumee Railroad Agreements"), relating to the use, operation and
maintenance of railroad tracks servicing the Maumee Facility. Tenant hereby
accepts and assumes the Maumee Railroad Agreements and agrees to carry out,
perform and complete all obligations and liabilities created or arising under
the Maumee Railroad Agreements during the term of this Lease including, but not
limited to, all charges and rent due under the Maumee Railroad Agreements.
(c) Sublease of the Toledo Facility. Landlord hereby subleases
the Toledo Facility (which includes the real estate described in Exhibit B)
including the buildings, fixtures, improvements, machinery, equipment and
rolling stock located thereon, and Landlord hereby leases
to Tenant the personal property listed on Exhibit D (which is not subject to the
IRB Lease) (the "Toledo Personal Property"), and Tenant hereby subleases and
leases, respectively, the same from Landlord, subject, however, to:
(i) Any state of facts an accurate survey may show.
(ii) Covenants, restrictions, easements, agreements
and reservations listed in Exhibit E, whether or not of record
(the "Toledo Permitted Exceptions"), and the standard
exceptions contained in a standard title policy;
(iii) Building, platting and zoning ordinances, State
and Federal regulations;
(iv) Minerals and mineral rights reserved to the
State of Ohio or other parties;
(v) Taxes and installments of special assessments not
delinquent provided the same shall be paid as hereinafter
provided; and
(vi) Permitted encumbrances hereinafter described,
to be used primarily for the purpose of grain handling, and related activities,
and for no other purpose, without the express prior written consent of Landlord.
The Maumee Personal Property, the Maumee IRB Personal Property and the Toledo
Personal Property shall be collectively referred to as the "Personal Property".
(d) Sublease of the Railroad Lease. Landlord hereby subleases the
Railroad Property to Tenant, and Tenant agrees to sublease the Railroad Property
from Landlord. Tenant hereby acknowledges that the terms and conditions of the
Railroad Lease are hereby incorporated into this Agreement as Exhibit G. Tenant
hereby covenants and agrees: (i) to perform all covenants and obligations of
"Lessee" as set forth in the Railroad Lease, and (ii) that in the event of a
conflict between the terms and conditions of this Agreement and the terms and
conditions of the Railroad Lease, the terms and conditions of the Railroad Lease
shall govern and control. Landlord represents that it has obtained oral consent
from the Railroad for the sublease of the Railroad Lease, and Landlord shall use
best efforts to obtain such consent in writing.
(e) Assignment of Toledo Aqreements. During the term hereof, Landlord
hereby assigns to Tenant, its rights, title and interest to those certain
agreements copies of which are attached hereto as Exhibit F (the "Toledo
Railroad Agreements"), relating to the use, operation and maintenance of
railroad tracks servicing the Toledo Facility. Tenant hereby accepts and assumes
the Toledo Railroad Agreements and agrees to carry out, perform and complete all
obligations and liabilities created or arising under the Agreements during the
term of this Lease including, but not limited to, all charges and rent due under
the Toledo Railroad Agreements.
2. TERM.
(a) The term of this Lease shall be for a period of five (5)
years, commencing on the 1st day of June, 1998, ("Commencement Date") and
expiring on the 31st day of May, 2003 ("Expiration Date"); provided, however, in
the event the Marketing Agreement is terminated prior to the Expiration Date
hereof, then this Lease shall be coterminous with the termination of the
Marketing Agreement without further action by either party. Further, in the
event that the Marketing Agreement is not executed by both parties within five
(5) business days of execution of this Lease, this Lease shall terminate without
further action by either party.
(b) In the event either party desires to extend or renew the
Marketing Agreement beyond the Expiration Date of this Lease, such party shall
give the other party written notice of its intent to extend or renew this Lease
at least ninety (90) days prior to the expiration of this Lease, and the
parties hereby agree to negotiate in good faith the terms of the extension or
renewal of this Lease.
3. RENT.
(a) Tenant agrees to pay to Landlord as and for rent for the
Facilities the sum of * ( * ) per annum which sum shall be payable on a
semi-annual basis and which shall be due upon the first day of the term hereof
and thereafter upon the first day of each semi-annual period of the term of this
Lease. Said rent shall be payable in cash or by wire transfer at Landlord's
address given hereinbelow or at such other place as Landlord may, from time to
time, designate in writing. In the event Tenant shall fail to pay Landlord any
part of the aforesaid rental or any other sum required herein to be paid to
Landlord, within five (5) days of the due date thereof, Tenant shall pay to
Landlord a delinquent payment charge from the expiration of such five (5) day
period until the rental or other required sums are fully paid at the rate of 10%
per month or at the highest lawful contract rate allowed by the State of Ohio,
whichever is lower.
(b) In addition to the annual fixed rent set forth in (a)
above, Tenant shall pay Landlord as additional rent for the Facilities, upon
thirty (30) days after receipt of the tax xxxx from Landlord, all real estate
taxes (including any tax in lieu of ad valorem tax), personal property taxes,
assessments, use and occupancy taxes, levies, license and permit fees and other
charges, general and special, of any kind and nature whatsoever which shall or
may be, during the term of this Lease, assessed or levied against the Facilities
and which shall accrue during the term of the Lease. All such taxes assessed or
levied against the Facilities accruing during the initial year and final year of
the lease shall be prorated between Tenant and Landlord, as of the commencement
and expiration date of the Lease for the initial and final years, respectively.
Landlord may submit a tax xxxx to Tenant for such prorated amounts at the
earliest time that the Landlord is able to determine such prorated amount.
(c) Tenant shall pay all sales or use taxes imposed upon all
payments made pursuant to the Lease or otherwise imposed by any tax authority.
*CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SEC
(d) Rebates. All rebates on account of any such taxes, rates,
levies, charges, or assessments required to be paid and paid by Tenant under the
provisions hereof shall belong to Tenant, and Landlord will, on the request of
Tenant, execute any receipts, assignments, or other acquittances that may be
necessary in order to secure the recovery of any such rebates, and will pay
promptly over to Tenant any such rebates that may be received by Landlord.
(e) Personal Property Taxes. Tenant shall bear the burden for
any Imposition levied against the personal property belonging to Tenant,
including the Personal Property, stored, kept or maintained in or upon the
Facilities.
(f) Nothing contained herein shall require Tenant to satisfy
the bonds which are the subject of the IRB Lease or to pay any income tax or any
taxes in lieu thereof of Landlord, or the Rent (as defined in the IRB Lease) due
under the IRB Lease.
As hereinafter used, the term "rent" shall collectively mean
the fixed rent and additional rent.
4. UTILITIES.
Tenant shall initiate, contract for, and obtain, in its name,
all utility or other services it desires for the Facilities, and Tenant shall
pay all such charges for such utility services as they become due.
5. USE OF FACILITIES
(a) Use of the Toledo Facility. Tenant shall not do, permit or
suffer any event or omission as a result of which there could occur a default of
the IRB lease or an acceleration of the payments thereunder or which could cause
the interest on the bonds issued in connection with the IRB Lease to become
taxable. Specifically, Tenant shall abide by, perform on behalf of Landlord or
be subject to the IRB Lease. Specifically, Tenant shall comply with the
following sections of the IRB Lease:
1.0 (Definitions)
2.2 (Purposes)
4.5 (Installation of Own Personal Property)
6.1 (Maintenance and Modifications of Leased Premises)
6.2 (Removal of Portions of the Project)
6.3 (Removal of Company's Own Personal Property)
6.4 (Documents to be Provided)
6.5 (Taxes, Other Governmental Charges and Utility
Charges)
6.6 (Property Insurance)
6.7 (Additional Provisions Respecting Insurance)
6.8 (Public Liability Insurance)
6.9 (Workers' Compensation Coverage)
7.1 (Damage Destruction and Condemnation)
7.2 (Eminent Domain)
8.1 (Mechanics' and Other Liens)
9.9 (Right of Access)
9.10 (Indemnification)
9.11 (Company Not to Adversely Affect Tax Exempt Status of
Bonds' Interest)
11.1 (Assignment and Subleasing by Company)
and to the following section of the Second Supplemental Lease: 4. Representation
Covenant as to 1983 Addition.
Tenant shall not use the Toledo Facility in any manner which
would materially impair the fulfillment of the purposes of the Act (as that term
is defined under the IRB Lease) to be accomplished by operation of the Toledo
Facility.
Hereinafter any breach of the above is collectively referred
to as an "IRB Default"
Tenant shall keep all information and documentation relative
to this Lease confidential and shall not disclose any information to any third
party without the prior written consent of Landlord. Notwithstanding the
foregoing, Tenant may provide a copy of this Lease to any grain licensing agency
or office, or to any insurance company, to the extent that Tenant is required to
do so by such grain licensing agency or office or insurance company; provided,
however, that Tenant shall redact all such copies of this Lease to the extent
that the redacted information is not required by the grain licensing agency or
office or insurance company. Tenant also may file a memorandum of lease with any
appropriate court or governmental agency or office.
(b) Use: General. No use shall be made of the Facilities which
is a violation of any applicable law, regulation or ordinance or the
restrictions contained in the deeds to the Facilities, and no use shall be made
which causes a cancellation of any insurance covering the Facilities. Tenant
shall use the Facilities in a careful, safe and proper manner.
Landlord has terminated any employment relationship it
previously had with each of its employees at the Facilities. Landlord shall have
no further supervisory function whatsoever with respect to any of its former
employees at the Facilities. Tenant has sole authority to operate the Facilities
for the purposes of the relationship contemplated by the Marketing Agreement
entered into by the Landlord and Tenant. Accordingly, Tenant shall be solely
responsible for the direction of its agents, servants and employees, including
all former employees of Landlord hired by Tenant. In particular and without
limitation, Tenant shall be solely responsible for its employees' selection,
hiring, firing, supervision, wages and benefits, hours, performance standards,
training and discipline. Tenant shall also be solely responsible for compliance
with all applicable local, state and federal laws and regulatory requirements
relating to its employees.
6. MAINTENANCE AND REPAIRS
During the term of this Lease, Tenant shall, at its own cost
and expense, keep and maintain the Facilities and any improvements thereon in
good order and condition, and will make all necessary repairs, structural or
nonstructural, to the Facilities and improvements, to the end that the
Facilities and improvements shall at all times be kept in good and tenantable
condition for the purposes for which the Facilities are being used. Tenant will
not do or suffer any waste or damage or injury to the Facilities or any
improvement thereon, or any part thereof. All repairs made by Tenant shall be
equal in quality and class to the original work. Tenant hereby assumes the full
and
sole responsibility for the condition, operation, repair, replacement,
maintenance and management of the Facilities and any improvements thereon. In
addition to the foregoing, Tenant shall also keep sidewalks and parking areas
free and clear of snow, ice or other obstructions to travel and shall maintain
lawn and parking areas in a clear and sightly condition, free of debris and
waste. Landlord shall not have any responsibility for the maintenance or repair
of the Facilities. Upon the expiration or termination of this Lease, Tenant
shall surrender the Premises to Landlord in as good condition as of the
Commencement Date, loss by fire or other casualty covered by insurance, ordinary
wear and tear, and obsolescence excepted.
7. ALTERATIONS, ADDITIONS AND IMPROVEMENTS
(a) During the term of this Lease, Tenant may, at its own
expense, make alterations, additions or improvements to the Facilities with the
prior written consent of Landlord, provided that such alterations or additions
to the Toledo Facility will not result in an IRB Default. Tenant shall procure
all applicable permits and authorizations. All work shall be done in a good and
workmanlike manner and in compliance with all laws.
(b) Except as otherwise provided by the IRB Lease, all
alterations, additions and improvements to the Facilities shall immediately,
upon completion thereof, be and become the property of Tenant for the duration
of this Lease; provided, however, that upon termination of this Lease, Tenant
shall sell to Landlord and Landlord shall purchase from Tenant all such
alterations, additions and improvements at the then current book value of such
alterations, additions and improvements.
(c) Tenant shall keep the Facilities free of liens and
covenants and agrees to hold harmless and indemnify Landlord from and against
any costs, expenses and liabilities from any mechanic's, laborers' or
materialmen's or other liens, of whatsoever nature, which may be filed against
the Facilities during the term of this Lease. Tenant shall discharge any such
liens within thirty (30) days of the filing thereof. However, Tenant shall have
the right to contest in the name of Landlord, any such liens as Tenant may deem
necessary; provided that all expenses incurred by reason thereof shall be paid
by Tenant, Tenant provides written notice to Landlord of its intent to contest
such lien within three (3) days after the filing of such lien and Tenant, at
Landlord's request, gives reasonable security to insure payment thereof and to
prevent any sale, foreclosure or forfeiture of the Premises by reason of such
nonpayment.
(d) Compliance With Laws. Tenant agrees to comply with all
governmental laws and regulations relative to the use and operation of the
Facilities including without limiting the generality of the foregoing any OSHA,
EPA or other safety or environmental laws and regulations. Tenant agrees to
obtain and comply with all operating permits that are required for operating the
Facilities in accordance with the terms of this Lease and the Marketing
Agreement. Tenant shall not store hazardous materials or hazardous substances on
the Facilities. Tenant shall store all material on the Facilities according to
prudent and standard industry practice and label instructions, if any, even if
such are more restrictive than the aforesaid governmental laws and regulations.
The Tenant warrants that at all times during the course of this Lease the Tenant
will be fully responsible for compliance with the Public Accommodation/
Commercial Facilities disability access rules and regulations under the American
with Disabilities Act and with The Clean Air Act Amendments of 1990 (hereinafter
the "Acts") and shall indemnify and hold Landlord harmless from and against any
and all claims, demands, damages, liabilities, costs and expenses arising out of
said Acts as amended from time to time and their corresponding regulations;
provided, however, that Landlord shall reimburse Tenant for all costs and
expenses required to bring the Facilities into compliance with the Acts to the
extent the Facilities are not in compliance as of the Commencement Date of this
Lease.
8. INSURANCE.
(a) Tenant shall, at no cost or expense to Landlord but for
the mutual benefit of Landlord and Tenant, maintain Commercial General Liability
(including contractual liability) and auto liability with combined single limits
of liability of * per occurrence.
(b) Tenant, at its sole cost and expense, but for the mutual
benefit of Landlord and Tenant, shall insure against all risks of loss or damage
to the Facilities in an amount equal to the full replacement cost of the
Facilities.
(c) Tenant shall, at no cost or expense to Landlord, but for
the mutual benefit of Landlord and Tenant, maintain boiler and machinery
insurance on all boilers, air conditioning equipment, and other pressure vessels
and systems located in, on or about the Facilities.
(d) Tenant shall, at no cost or expense to Landlord, maintain
Workers' Compensation, Employer's Liability Insurance and any other legally
required employer's insurance in accordance with and meeting all statutory
requirements.
(e) Property policies shall be so written or endorsed as to
make losses, if any, in excess of * per occurrence, payable directly to the IRB
Lease Trustee to the extent required by the IRB Lease. Property policies shall
be on an occurrence rather than claims-made basis and shall provide that they
will not be canceled without thirty (30) days prior written notice to all
persons named as insured or additional insured. Tenant's policies shall be
primary without right of contribution from Landlord or Landlord's insurance
policies. Landlord shall be named as an additional insured for the Maumee
Facility, and Landlord, and the Xxxxxx-Xxxxx County Port Authority shall be
named as additional insureds as their interest may appear for the Toledo
facility. The IRB Lease Trustee shall also be named as an additional insured
pursuant to a standard mortgagee clause, as its interests may appear, regarding
the Toledo Facility. Tenant's insurance policies shall contain a waiver of
subrogation against Landlord. Certificates of insurance evidencing such coverage
for the respective Facilities shall be sent to Landlord, the Xxxxxx-Xxxxx County
Port Authority and the IRB Lease Trustee on the Commencement Date and any
renewals thereof at least thirty (30) days prior to the expiration thereof.
*CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SEC
9. INDEMNITY.
(a) Tenant shall hold Landlord harmless and indemnify Landlord
from and against all liabilities, injuries, losses, claims, expenses (including,
without limitation, attorneys' fees) or damages directly or indirectly arising
out of (i) Tenant's, its employees', agents', licensees', invitees',
contractors' or customers' use, presence, operation and occupancy of the
Facilities; (ii) any events on the Facilities; (iii) any breach of this Lease by
Tenant; (iv) any act or omission of Tenant or any of the foregoing parties on
the Facilities taking place in, on or about the Facilities or on public land or
waters adjoining the same; (v) any failure of Tenant, its employees, agents,
licensees, invitees, contractors or customers to comply and conform with all
federal, state and local laws, statutes, regulations, rules and ordinances, or
any directive, rule, regulation or request of Landlord; or (vi) any
environmental liabilities and any landfill; provided, however, that the same
shall have occurred on the Facilities after the date of this Lease, except to
the extent such liabilities, injuries, losses, claims, expenses or damages are
the result of the negligent or otherwise wrongful acts or omissions of the
Landlord, its employees, agents, licensees, invitees, contractors or customers.
(b) Tenant specifically agrees to indemnify, defend and hold
harmless Landlord from and against all claims, actions, damages, liabilities and
expenses (including attorneys' fees) arising out of or in connection with any
IRB Default caused by Tenant.
(c) Landlord shall hold Tenant harmless and indemnify Tenant
from and against all liabilities, injuries, losses, claims, expenses (including,
without limitation, attorneys' fees and any pending litigation) or damages
directly or indirectly arising out of or in any manner connected with the
operation or ownership of the Facilities and the conduct of business therein,
thereabout, thereon or with regard thereto, including any landfill that has
occurred on the Facilities, prior to the Commencement Date, including, without
limiting the generality of the foregoing, environmental and patent infringement
claims, suits, cases or charges.
(d) Landlord agrees to indemnify, defend and hold harmless
Tenant from and against all claims, actions, damages, liabilities and expenses
(including attorneys' fees) arising out of or in connection with Landlord's
failure to perform under the IRB Lease, provided that Tenant is not in breach of
any term of this Lease, which breach has contributed to Landlord's default under
the IRB Lease.
10. DAMAGE OR DESTRUCTION.
(a) Tenant agrees that in the event of damage to or
destruction of the Facilities, or any part thereof, by fire or other casualty,
Tenant shall immediately notify Landlord. Tenant agrees that in the event of
damage to or destruction of the Toledo Facility, or any part thereof, by fire or
other casualty, Tenant shall immediately notify Landlord, the Xxxxxx-Xxxxx
County Port Authority and the IRB Lease Trustee.
(b) Tenant shall effect the prompt repair and restoration of
the Facilities to a condition at least equal to the condition immediately prior
to such damage or destruction.
(c) In the event of damage or destruction to the Toledo
Facility, all insurance
money paid on account of such damage or destruction shall be applied to the
repair, rebuilding or restoration of the Premises by the Tenant. If the
insurance money is insufficient to pay all costs of restoration, Tenant shall
pay the deficiency and proceed to complete the restoration and pay the cost
thereof. Any balance of the insurance proceeds remaining over and above the
cost of the restoration shall be paid into the Bond Fund (as such term is
defined in the IRB Lease) pursuant to the IRB Lease.
(d) Tenant's obligation to make payment of the rent and all
other covenants to be performed by Tenant shall not be affected by any such
damage or destruction. Tenant hereby waives the provisions of any statute now or
hereafter in effect contrary to such obligation or which releases Tenant
therefrom. Notwithstanding the foregoing, in the event that the Threshold (as
defined in the Marketing Agreement) is renegotiated or adjusted pursuant to
Section 6.6 of the Marketing Agreement, Tenant's obligation to make payment of
rent shall be reduced by the same percentage as applied to the Threshold under
Section 6.6 of the Marketing Agreement.
11. CONDEMNATION.
In the event that one or both of the Facilities in its
entirety shall be taken in condemnation proceedings or by the exercise of any
right of eminent domain or by agreement between Landlord, Tenant and those
authorized to exercise such right ("Condemnation"), then this Lease shall
terminate and neither party shall have any obligation to the other except that
Landlord shall pay to Tenant a prorated refund of unearned, prepaid rentals, if
any. Tenant hereby waives any right to any condemnation awards. In the event
that any part of either Facility shall become subject to Condemnation, Landlord
and Tenant shall renegotiate in good faith the rent for the Facilities and shall
continue this Lease to the extent that such continuance is not inconsistent with
Section 7.2 of the IRB Lease.
12. ENTRY AND INSPECTION OF THE FACILITY.
Tenant, at any time during the term of this Lease Agreement,
shall permit reasonable inspection of the Facilities during reasonable hours by
Landlord. Landlord shall give notice at least 48 hours in advance of its
inspection. In addition, Tenant, at any time during the term of this Lease
Agreement, shall permit reasonable inspection of the Toledo Facility during
reasonable hours by the Xxxxxx-Xxxxx County Port Authority, the IRB Lease
Trustee, and by their respective agents or representatives.
13. ASSIGNMENT, MORTGAGING AND SUBLETTING.
This Lease shall not be assigned by either party without the
prior written consent of the other party. Neither party shall mortgage or
otherwise encumber this Lease or the Facilities without the prior written
consent of the other party. Tenant shall not sublet the whole or any part of the
Facilities without Landlord's prior written consent. Neither party shall
unreasonably withhold its consent.
In the event that one or more third parties purchases Tenant's
stock in an amount sufficient to significantly affect or change control of
Tenant, or one or more third parties takes any action that does significantly
affect the control of Tenant, Landlord may in its sole discretion either
continue or terminate this Lease. For purposes of this Agreement, "control"
shall mean (a) the direct or indirect ownership of more than fifty percent (50%)
of the total voting securities of every class or other voting evidences of
ownership interest of Tenant, or (b) the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
Tenant. If Landlord elects to terminate this Lease, Landlord must provide
written notice to Tenant of its election to terminate not more than fifteen (15)
days after public announcement or after Tenant has provided written notice to
Cargill of any public filing with the Securities Exchange Commission. Tenant
shall have no right to terminate this Agreement under this Section 13.
14. TENANT'S DEFAULT.
(a) The following shall constitute events of default by
Tenant:
(i) Tenant shall fail to pay the rent or other
charges on or before the same become due and payable and the same
continues for fifteen (15) days after receipt of Landlord's written
notice by Tenant;
(ii) Tenant shall fail to perform or observe any
other term or condition contained in this Lease and Tenant shall not
cure or commence to cure such failure within thirty (30) days after
receipt of Landlord's written notice by Tenant;
(iii) Tenant shall do, permit or suffer any action,
event or omission which would cause an IRB Default, if Tenant shall
fail to cure or commence to cure such default (to the extent that such
cure may be made under the IRB Lease) within thirty (30) days after
written notice from Landlord (provided, however, that Tenant shall
provide Landlord with prompt notice of any IRB Default of Tenant when
Tenant becomes aware of such default);
(iv) Tenant shall permit this Lease or any estate of
Tenant hereunder to be sold under any attachment or execution.
(v) Tenant shall file or have filed against it,
voluntarily or involuntarily a petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent, or shall take the benefit of any
relevant legislation that may be in force for bankrupt or insolvent
debtors or shall file or have filed against it, voluntarily or
involuntarily, any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief for itself under any present or future federal, state
or other statute, law or regulation, or if Tenant shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of any substantial part of its properties, or
shall make any general assignment for the benefit of creditors.
(b) In the event any one or more of the above shall occur,
Landlord shall have the right to terminate this Lease upon the expiration of
fifteen (15) days after receipt of Landlord's written notice by Tenant.
(c) Should Landlord at any time terminate this Lease for any
breach, Landlord shall still have such remedies as are available at law.
15. LANDLORD'S DEFAULT.
(a) The following shall constitute events of default by
Landlord:
(i) Landlord default under the IRB Lease, if Landlord
shall fail to cure or commence to cure such default (to the extent that
such cure may be made under the IRB Lease) within thirty (30) days
after written notice from Tenant (provided, however, that Landlord
shall provide Tenant with prompt notice of any IRB default of Landlord
when Landlord becomes aware of such default);
(ii) Landlord shall file or have filed against it,
voluntarily or involuntarily, a petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent, or shall take the benefit of any
relevant legislation that may be in force for bankrupt or insolvent
debtors or shall file or have filed against it, voluntarily or
involuntarily, any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief for itself under any present or future federal, state or
other statute, law or regulation, or if Landlord shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or
liquidator of Landlord or of any substantial part of its properties, or
shall make any general assignment for the benefit of creditors.
(iii) Landlord shall fail to perform or observe any
other term or condition contained in this Lease and Landlord shall not
cure or commence to cure such failure within thirty (30) days after
receipt of Landlord's written notice by Tenant.
(b) In the event any one or more of the above shall occur,
Tenant shall have the right to terminate this Lease upon the expiration of
fifteen (15) days after receipt of Tenant's written notice by Landlord.
(c) Should Tenant at any time terminate this Lease for any
breach, Tenant shall still have such remedies as are available at law.
16. LANDLORD MAY PERFORM TENANT'S OBLIGATIONS.
If Tenant shall fail to keep or perform any of its obligations
as provided hereunder, Landlord may (but shall not be obligated to do so),
without waiving or releasing Tenant from any obligation, as an additional but
not exclusive remedy, make any such payment or perform any such obligation, and
all sums so paid by Landlord plus all necessary and incidental costs and
expenses incurred by Landlord shall be deemed additional rent and shall be paid
to Landlord on demand and if not so paid by Tenant, Landlord shall have the same
rights and remedies as in the case of default by Tenant.
17. SURRENDER.
(a) Title to Improvements/Surrender. Except as otherwise
required by the IRB Lease, Landlord and Tenant agree that title to and ownership
of the buildings, structures, equipment, machinery and appurtenances presently
located on the Facilities and all repairs, replacements, additions and
reconstructions thereof made by Tenant (hereinafter collectively
"Improvements"), shall, upon the termination of this Lease, whether pursuant to
the expiration of the term hereof or pursuant to the exercise of any right of
termination herein contained or otherwise, vest immediately in Landlord, without
further instrument of conveyance whatsoever subject to the provisions set forth
in Section 7(b) herein. Tenant shall, upon the termination of this Lease,
peacefully and quietly surrender and deliver the Facilities to Landlord.
(b) Right to Remove. Notwithstanding the terms of Section
17(a) above, any and all trade fixtures and personal property, which are or have
been built, supplied or used by Tenant in the conduct of its business may be
removed by Tenant at any time prior to or upon the termination of the Lease;
provided, however, that Tenant shall have discharged any encumbrance suffered or
permitted by Tenant against the Facilities. Tenant shall have a period of thirty
(30) days after termination within which to remove all trade fixtures and
personal property and shall, within such period, restore the Facilities to a
sightly and attractive condition. Tenant shall pay any and all costs of removal
and restoration.
(c) Any holding over by Tenant after the expiration or
termination of this Lease shall be treated as a daily tenancy at sufferance at a
rate equal to twice the fixed rent plus all other charges, prorated on a daily
basis, and shall otherwise be on the terms and conditions set forth in this
Lease as far as applicable. Tenant's exercise of its right to remove trade
fixtures and personal property under Section 17(b) herein shall not be
considered "holding over" for purposes of this Section 17(c).
18. DISCLAIMER OF WARRANTIES.
The Facilities are leased on an "AS IS, WHERE IS" and "WITH
ALL FAULTS" basis. Tenant acknowledges that Landlord SPECIFICALLY DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSE, ANY
WARRANTY AS TO THE DESIGN OR CONDITION OF THE PROPERTY, QUALITY OR CAPACITY OF
THE FACILITIES, OR ANY WARRANTY WITH RESPECT TO PATENT INFRINGEMENT OR THE
ABSENCE OF ANY LATENT DEFECT. In making this Lease, Tenant has not been induced
by and has not relied upon representations, warranties or statements, whether
express or implied, made by Landlord or any broker or any other person
representing or purporting to represent Landlord, except such representations,
warranties or statements which are included herein. Landlord and Tenant
acknowledge that the parties have inspected the Facilities for the purpose of
denoting the then current condition of the Facilities including but not limited
to the roof, plumbing, lighting, air-conditioning, heating, loading and personal
doors, scales and electrical services and sprinkler system.
19. ENVIRONMENTAL MATTERS.
Landlord and Tenant shall jointly perform an internal
environmental inspection and audit of the Facilities prior to the term of this
Lease to establish the current environmental condition of the Facilities.
Subject to the other parties' consent, which shall not be unreasonably withheld,
if either party desires to have a Phase II environmental assessment prepared,
then an independent environmental consultant shall be chosen and directed
mutually by both Landlord and Tenant. The scope, timing and sequence of the
Phase II assessment are to be mutually determined by Landlord and Tenant, with
the costs of the Phase II assessment to be shared equally between the parties.
All inspections and auditing activities shall not unreasonably interfere with
Landlord's operations at the Facilities.
20. LANDLORD'S REPRESENTATIONS AND WARRANTIES
Landlord represents and warrants as follows to Tenant, such
representations and warranties to be true and correct on the Commencement Date,
that:
(a) Landlord is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and is
registered to do business and in good standing under the laws of the State of
Ohio.
(b) Landlord has full power and authority, corporate and
otherwise, to execute and perform this Lease Agreement and to consummate and
perform the transactions contemplated hereby. This Lease Agreement, when
executed, will be a legal, binding and valid obligation of Landlord enforceable
against it in accordance with its terms. Execution of this Lease Agreement shall
not constitute a default of the IRB Lease. Landlord will provide Tenant with
documentation confirming that Landlord is in good standing under the IRB Lease
as of the effective date of this Lease Agreement.
(c) The execution, delivery and performance of this Lease
Agreement and compliance with the provisions hereof by Landlord will not
conflict with or result in the breach or violation of any term or provision of
its Certificate of Incorporation or By-laws.
(d) Landlord's execution, delivery and performance of this
Lease Agreement will not constitute a default under the IRB Lease, or any other
loan document.
(e) Landlord owns good and marketable title to the leasehold
estate described in Exhibit B free and clear of all liens and encumbrances,
except those set forth in Exhibit E.
(f) Landlord owns good and marketable fee title to the real
estate described in Exhibit A free and clear of all liens and encumbrances,
except those set forth in Exhibit E.
(g) Landlord has delivered to Tenant true and complete copies
of the following documents relating to the IRB Lease:
Lease between Xxxxxx-Xxxxx County Port Authority and Xxxxxxx,
Xxxxxxxxxxxx dated April 1, 1978 and Assignment of Lease to
Ohio Citizens Trust Company dated April 1, 1978.
Supplemental Lease between Xxxxxx-Xxxxx County Port Authority
and Xxxxxxx, Xxxxxxxxxxxx dated March 1, 1982 and Assignment
of Supplemental Lease to Ohio Citizens Bank dated March 1,
1982.
Second Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and Xxxxxxx, Xxxxxxxxxxxx dated June 1, 1983 and
Assignment of Second Supplemental Lease to Ohio Citizens Bank
dated June 1, 1983.
Third Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and Xxxxxxx, Xxxxxxxxxxxx dated April 1, 1992 and
Assignment of Third Supplemental Lease to Ohio Citizens Bank
dated April 1, 1992.
Fourth Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and Xxxxxxx, Xxxxxxxxxxxx dated May 15, 1993 and
Assignment of Fourth Supplemental Lease to Ohio Citizens Bank
dated May 15, 1993.
21. TENANT'S REPRESENTATIONS AND WARRANTIES.
Tenant represents and warrants as follows to Landlord, such
representations and warranties to be true and correct on the Commencement Date,
that:
(a) Tenant is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Ohio, and is
registered to do business and in good standing under the laws of the State of
Ohio.
(b) Tenant has full power and authority, corporate and
otherwise, to execute and perform this Lease and to consummate and perform the
transactions contemplated hereby. This Lease, when executed, will be a legal,
binding and valid obligation of Tenant enforceable against it in accordance with
its terms.
(c) The execution, delivery and performance of this Lease and
compliance with the provisions hereof by Tenant will not conflict with or result
in the breach or violation of any term or provision of its Certificate of
Incorporation or By-laws or any agreements or contracts to which Tenant is a
party.
(d) No consent or approval of any governmental agency or
commission or other public authority is necessary for the due execution,
delivery, performance or enforceability of this Lease and no consent of any
other party is required to be obtained by Tenant to permit the consummation of
the transactions contemplated hereby.
(e) Tenant has received from Landlord copies of the following
documents relating to the IRB Lease:
Lease between Xxxxxx-Xxxxx County Port Authority and Xxxxxxx,
Xxxxxxxxxxxx dated April 1, 1978 and Assignment of Lease to
Ohio Citizens Trust Company dated April 1, 1978.
Supplemental Lease between Xxxxxx-Xxxxx County Port Authority
and Xxxxxxx, Xxxxxxxxxxxx dated March 1, 1982 and Assignment
of Supplemental Lease to Ohio Citizens Bank dated March 1,
1982.
Second Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and Xxxxxxx, Xxxxxxxxxxxx dated June 1, 1983 and
Assignment of Second Supplemental Lease to Ohio Citizens Bank
dated June 1, 1983.
Third Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and
Xxxxxxx, Xxxxxxxxxxxx dated April 1, 1992 and
Assignment of Third Supplemental Lease to Ohio Citizens Bank
dated April 1, 1992.
Fourth Supplemental Lease between Xxxxxx-Xxxxx County Port
Authority and Xxxxxxx, Xxxxxxxxxxxx dated May 15, 1993 and
Assignment of Fourth Supplemental Lease to Ohio Citizens Bank
dated May 15, 1993.
(f) Tenant shall not do, permit or suffer any event or
omission which could cause an IRB Default.
All of these representations and warranties shall survive the
Commencement Date.
22. SUBORDINATION.
This Lease is expressly subject to the IRB Lease, as more
specifically enumerated in Section 5(a) hereof. It is not the intention of
Landlord and Tenant to obligate Tenant to satisfy the bonds which are the
subject of the IRB Lease.
23. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon paying the rent and
performing the covenants herein, shall peaceably and quietly have, hold and
enjoy the Facilities during the term of the Lease.
24. ARBITRATION OF DISPUTES.
In the event a dispute arises under this Agreement, such
dispute shall be resolved by a board of three arbitrators, one selected by each
party, and the third selected by the two so appointed. Each party may invoke
this provision by written notice to the other party and, upon receipt of such
notice, both parties agree to proceed diligently to complete such arbitration
and to be bound by the decision of the arbitrators. Any such arbitration shall
be conducted in accordance with the Uniform Arbitration Act, and the Rules of
the American Arbitration Association shall govern. Judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
25. NOTICES.
Any notice required or permitted under this Lease shall be in
writing and sent by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Landlord: Xxxxxxx, Xxxxxxxxxxxx
00000 XxXxxxx Xxxx West
P. O. 5602
Wayzata, Minnesota 55391-2399
Attn: Xxxxxx X. Xxx
With copy to: CGD Attorney
If to Tenant: The Andersons, Inc.
000 X. Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxxx, Xxxx 00000
Attn: Xxx Xxxx
With copy to: Xxxxxxx XxXxxxx
If to IRB Lease Trustee National City Bank
Corporate Trust Department Locator 3116
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxx
If to Xxxxxx-Xxxxx Xxxxxx-Xxxxx County Port Authority
County Port One Maritime Plaza
Authority Xxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
or to such other address as any of the above may hereafter furnish in writing to
the others.
26. MAUMEE, OHIO PARKING LEASE.
The parties have entered into that certain lease dated June
30, 1987 (the "Truck Staging Lease"), for the purposes of allowing Landlord to
use Tenant's land for the purpose of a truck staging area and for such other
purposes incidental thereto. The parties hereto agree that said Truck Staging
Lease shall be terminated as of the date of this Lease and Landlord shall
receive from Tenant a refund of any unearned paid rent pursuant to the terms of
the Truck Staging Lease.
27. MISCELLANEOUS PROVISIONS.
(a) Entire Agreement. This Lease and Exhibits attached hereto
contain the entire understanding and agreement of the parties hereto and shall
not be modified in any manner except by an instrument in writing executed by
both parties. In the event any term, covenant or condition herein contained is
held invalid or void by any court of competent jurisdiction, the invalidity of
any such term, covenant or condition shall in no way affect any other term,
covenant or condition herein contained. Notwithstanding the foregoing, this
Lease and Exhibits attached hereto shall be read and construed together and
consistently with the Marketing Agreement.
(b) Successors and Assigns. All the terms, covenants, and
conditions of this Lease shall be binding upon, and inure to the benefit of and
be enforceable by the parties hereto and their respective successors, heirs,
executors and assigns.
(c) Governing Law. This Lease shall be governed, construed,
and interpreted in accordance with the laws of the State of Ohio.
(d) Headings. The headings contained in this Lease are for
reference purposes only and shall not affect the meaning or interpretations of
this Lease.
(e) Incorporation by Reference. Exhibits A through G attached
hereto are hereby incorporated by reference and made a part hereof.
(f) Waivers and Amendments. This Lease and the other
instruments to be executed pursuant hereto may be amended, superseded, canceled,
renewed or extended, and their terms or covenants hereof may be waived, only by
a written instrument executed by the parties hereto or in the case of a waiver,
by the party waiving compliance. The failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by any party of the breach
of any term or covenant contained in this Lease or in any other such instrument,
whether by conduct or otherwise, in anyone or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any breach, or a waiver
of the breach of any other term or covenant contained herein. The parties
reserve the right by mutual written consent to amend, modify, supersede and
cancel this Lease, or waive the terms or conditions hereof, without the consent
of any third person (natural or otherwise).
(g) Cooperation. Tenant shall cooperate with Landlord, at
Landlord's expense, in the performance of any requirements under the IRB Lease
regarding the furnishing of information.
(h) No Third Party Beneficiary. No person or entity shall be
deemed to be a third party beneficiary of the Agreement and nothing expressed or
implied in this Agreement shall be deemed to confer upon any person or entity or
any heir, successor, assign or legal representative thereof any rights or
remedies, of any nature or kind whatsoever, including without limitation, any
right to contract or any right to employment or continued employment.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement
effective on the day and year first above written.
XXXXXXX, XXXXXXXXXXXX
By: /s/Xxxxxx X. Xxx
------------------------------------
Its: Vice President - Grain Division
------------------------------------
THE ANDERSONS, INC.
By /s/Xxxxxx X. Xxxxxx
------------------------------------
Its: President, Agriculture Group
------------------------------------
EXHIBIT A
Legal Description of the Maumee. OH Real Property
PARCEL I
That part of Fractional Section 36, Town 2, U. S. R. of 12 miles square at the
foot of the rapids of Miami of Lake Erie in the City of Maumee, Xxxxx County,
Ohio, described as follows: BEGINNING at a point on the center line of Xxxxxx
Street, said point being 1900 feet northwesterly of a concrete monument at the
intersection of the center line of Indiana Avenue approaching Xxxxxx Street from
the northeast and the center line of Xxxxxx Street; thence north 22 degrees, 30
minutes west along the center line of Xxxxxx Street, a distance of 590.82 feet
to a point; thence south 67 degrees 30 minutes west, a distance of 293.76 feet
to a point; thence north 22 degrees, 26 minutes west, a distance of 403.36 feet
to a point; thence south 67 degrees, 34 minutes west, a distance of 32.5 feet to
a point; thence south 22 degrees 17 minutes east, a distance of 454.5 feet to a
point; thence south 67 degrees, 59 minutes west, a distance of 24 feet to a
point; thence south 22 degrees, 28 minutes east, a distance of 118.16 feet to a
point; thence south 67 degrees, 32 minutes west, a distance of 36 feet to a
point; thence south 22 degrees, 28 minutes east, a distance of 417.8 feet to a
point; thence north 67 degrees, 32 minutes east, a distance of 11.52 feet to a
point; thence south 22 degrees, 13 minutes east, a distance of 358.7 feet to a
point; thence north 67 degrees, 42 minutes east, a distance of 176.46 feet to a
point; thence north 22 degrees, 35 minutes west, a distance of 354.98 feet to a
point; thence north 67 degrees, 25 minutes east, a distance of 202.27 feet to
the point of beginning. Also that part of said Section 36 lying between the
southerly line of the above described property and a line 30 feet westerly of
the most westerly rail of spur tracks serving the above property and a line 30
feet easterly of the most easterly rail of said tracks and extending to the
Wabash Railroad right-of-way.
PARCEL II
That part of Fractional Section thirty-six (36), Town two (2), United States
Reserve, of twelve (12) miles square at the foot of the rapids of Miami of Lake
Erie in the City of Maumee, Xxxxx County, Ohio; described as follows:
Starting at a concrete monument at the intersection of the center
line of Xxxxxx Street and the center line of Indiana Avenue approaching from the
northeast; thence north twenty-two degrees (22 degrees) thirty minutes (30')
west along the center line of Xxxxxx Street a distance of nineteen hundred and
no tenths (1900.0) feet; thence south sixty-seven degrees (67 degrees)
twenty-five minutes (25') west a distance of one hundred two and twenty-seven
hundredths (102.27) feet to the point of beginning of the herein described
parcel; thence continuing south sixty-seven degrees (67 degrees) twenty-five
minutes (25') west a distance of one hundred and no tenths (100.0) feet; thence
south twenty-two degrees (22 degrees) thirty-five minutes (35') east a distance
of three hundred fifty-four and ninety-eight hundredths (354.98) feet; thence
north sixty-seven degrees (67 degrees) forty-two minutes (42') east a distance
of one hundred and no tenths (100.0) feet; thence north twenty-two degrees (22
degrees) thirty-five minutes (35') west a distance of three hundred fifty-five
and forty-eight hundredths (355.48) feet to the point of beginning.
PARCEL III
That part of Fractional Section thirty-six (36), Town Two (2), United States
Reserve of twelve miles square at the foot of the rapids of Miami of Lake Erie
in the City of Maumee, Xxxxx County, Ohio; described as follows:
Starting at a concrete monument at the intersection of the center
line of Xxxxxx Street and the center line of Indiana Avenue approaching from the
northeast; thence north twenty-two degrees (22 degrees) thirty minutes (30')
west along the center line of Xxxxxx Street a distance of fifteen hundred
forty-four and two hundredths (1544.02) feet; thence south sixty-seven degrees
(67 degrees) forty-two minutes (42') west a distance of three hundred
seventy-eight and twenty-two
hundredths (378.22) feet to the point of beginning of the herein described
parcel; thence north twenty-two degrees (22 degrees) thirteen minutes (13') west
a distance of three hundred fifty-eight and seven tenths (358.7) feet; thence
south sixty-seven degrees (67 degrees) thirty-two minutes (32') west a distance
of eleven and fifty-two hundredths (11.52) feet; thence north twenty-two degrees
(22 degrees) twenty-eight minutes (28') west a distance of four hundred
seventeen and eight tenths (417.8) feet; thence north sixty-seven degrees (67
degrees) thirty-two minutes (32') east a distance of thirty-six and no tenths
(36.0) feet; thence north twenty-two degrees (22 degrees) twenty-eight minutes
(28') west a distance of one hundred eighteen and sixteen hundredths (118.16)
feet; thence south sixty-seven degrees (67 degrees) fifty-nine minutes (59')
west a distance of one hundred ninety-seven and no tenths (197.0) feet; thence
south twenty-two degrees (22 degrees) twenty-eight minutes (28') east a distance
of eight hundred ninety-four and sixteen hundredths (894.16) feet; thence north
sixty-seven degrees (67(Degree)) forty-two minutes (42') east a distance of one
hundred seventy and ninety-six hundredths (170.96) feet to the point of
beginning.
PARCEL IV
The northerly 40 feet of the following described property:
That part of Fractional Xxxxxxx 00, Xxxx 0 xx xxx Xxxxxx Xxxxxx Reserve
of 12 miles square at the foot of the Rapids of the Miami of Lake Erie, in the
CITY of MAUMEE, XXXXX COUNTY, OHIO, bounded and described as follows:
Beginning at a point on the centerline of Xxxxxx Street that is
1353.58 feet southeasterly from a brass plate set in a concrete monument at the
intersection of the centerline of the Perrysburg-Holland Road and said Xxxxxx
Street, said brass plate being 1081.83 feet southeasterly of the intersection of
the centerline of Xxxxxxxx Road with the centerline of the Perrysburg-Holland
Road; thence south 22 degrees 30 minutes east along the centerline of said
Xxxxxx Street a distance of 200.0 feet; thence south 67 degrees 30 minutes west
a distance of 293.49 feet; thence north 22 degrees 26 minutes west a distance of
169.16 feet; thence south 67 degrees 34 minutes west a distance of 26.55 feet;
thence north 22 degrees 30 minutes west and parallel with the centerline of said
Xxxxxx Street a distance of 37.84 feet; thence north 67 degrees 30 minutes east
a distance of 30.0 feet; thence south 22 degrees 30 minutes east and parallel
with the centerline of said Xxxxxx Street a distance of 7.0 feet; thence north
67 degrees 30 minutes east a distance of 290.0 feet to the place of beginning.
Subject to a perpetual easement for highway purposes granted to the State of
Ohio by instrument recorded in Volume 1863 of Deeds, page 609.
Subject to a perpetual easement and right of way for public highway and roadway
purposes to the State of Ohio of the following described property:
Being a parcel of land lying on the Right side of the centerline of a survey,
made by the Department of Highways, and recorded in Book ___, Page ____, of the
records of Xxxxx County and being located within the following described points
in the boundary thereof; All that part of lots 41, 42 and 43 of the Assessor's
Plat (as recorded in Volume 2A of Plats, Page 46) of fractional Section 00, Xxxx
0, X.X. Xxxxxxx, Xxxx of Maumee, Xxxxx County, Ohio, bounded and described as
follows:
Commencing at the point of intersection of the centerline of Xxxxxx Street with
the east and west centerline of fractional Section 00, Xxxx 0, X.X. Xxxxxxx,
Xxxx of Maumee, Xxxxx County, Ohio, said east and west centerline of fractional
Section 36 also being the South line of lot 43 of the said Assessor's Plat, said
point of intersection being Station 960 plus 07.09 in the centerline of a survey
made in 1962, by the Xxxx Xxxxxxxxxx xx Xxxxxxxx xx X.X. 00, Section 17.25 in
Xxxxx County, also known as Xxxxxx Street, thence North 25(Degree) 11' 15": West
along the centerline of Xxxxxx Street, a distance of 740.36 feet to the grantors
northwest property line, said point being Station 952 plus 66.73 in said
centerline of survey of U.S. 20 and being the true point of beginning of the
herein described parcel; thence South 25(Degree) 11' 15" East along the
centerline of Xxxxxx Street, a distance of 590.68 feet to a point on grantors
southeast property line, said point being Station 958 plus 57.41 in said
centerline of survey of U.S. 20; thence South 64(Degree) 43' 45" West along said
property line and passing through the existing southwest Right-of-Way line of
Xxxxxx Street, a distance of 45.00 feet to a point 45.00 feet right of Station
958 plus 57.48 in said centerline
of survey of U.S. 20; thence North 25(Degree) 11' 15" West a distance of 590.75
feet to a point on the grantors northwest property line, said point being 45.00
feet right of Station 952 plus 66.73 in said center line of survey of U.S. 20;
thence North 64(Degree) 48' 45" East along said property line and passing
through the existing southwest Right-of-Way line of Xxxxxx Street, a distance of
45.00 feet to the true point of beginning.
EXHIBIT B
Legal Description of the Toledo. OH Real Property
That part of River Tract No.7, and its extension, and part
of the Lower Island (so called) in the Maumee River
(also known as Grassy Point, Xxxxxxx'x Point and Xxxxxx Xxxxxx ), xx Xxxx 0,
Xxxxxx Xxxxxx Reserve, CITY OF TOLEDO, LUCAS COUNTY, OHIO, bounded and described
as follows, bearings being based on and derived from those on the maps of Toledo
Harbor, Ohio Established Harbor Lines by the U.S. Corps of Engineers:
Commencing at the intersection of the centerline of
Xxxxxx Street with the North line of said
River Tract No.7 extended (also the
centerline of original South Avenue); then
South 89 degrees 48 minutes 27 seconds East
1099.41 feet, on said north line of River
Tract No.7, and its extension, to the point
of beginning at an intersection with a line
that is parallel to and a perpendicular
distance of 80.00 feet southeastward from
the southeasterly line of the Norfolk and
Western Railroad right-of-way; then
continuing South 89 degrees 48 minutes 27
seconds East 306.66 feet on said river tract
line, which line along said 306.66 feet
thereof is also the southerly line of Xxxxx
Drive, a public street; then South 9 degrees
44 minutes 08 seconds East 1206.71 feet to
intersect the northerly harbor line of the
Maumee River as established by the U.S.
Corps of Engineers and approved by the
Assistant Secretary of War on April 17,
1917, said intersection being South 80
degrees 15 minutes 52 seconds West 1047.40
feet, along said harbor line, from Harbor
Line Point F-2; then South 80 degrees 15
minutes 52 seconds West 868.12 feet, on said
harbor line, to the east limited-access
right-of-way line of Interstate Route 75;
then North 0 degrees 35 minutes 56 seconds
West 1131.94 feet, on said Limited Access
Right-of-Way line, to intersect said line
that is parallel to and a perpendicular
distance of 80.00 feet southeastward from
the southeasterly line of the Norfolk and
Western Railroad Right-of-way; then North 60
degrees 04 minutes 59 seconds East 411.59
feet, parallel to said railroad
right-of-way, to the point of beginning;
containing 21.398 acres of land, more or
less.
EXHIBIT C
TOLEDO RAILROAD PROPERTY
EXHIBIT D
PERSONAL PROPERTY
Maumee Personal Property
Five Thousand Three Hundred Ninety (5,390) feet of track, being the portions of
Track Nos. 3706, 3707, 4101 and 4105, on Plan No. D-1277, dated Revised February
18, 1983, excluding the crossing diamonds located at Station 3+29 on Track No.
5713 and Station r+66 on Track No. 5713. (A copy is attached hereto as Exhibit
D-1).
Maumee IRB Personal Property
a. 130 foot diameter steel grain storage tank with 72 foot straight
sidewall height and a capacity of 877,000 bushels. The 1983 Addition is
designated tank #603 and is located between tanks #601 and #602.
b. 36 inch enclosed belt drawoff conveyor from #603 that feeds the #601
drawoff conveyor.
c. 42 inch enclosed belt feed conveyor into #603 that is fed from the#602
feed conveyor.
d. Various other structures and machinery and electrical systems
pertaining to tank #603.
Toledo Personal Property
7,299 feet of track shown in yellow in print dated March 15, 1979. (A copy is
attached hereto as Exhibit D-2.)
EXHIBIT D-2
Toledo Personal Property
EXHIBIT E
Permitted Exceptions
MAUMEE PERMITTED EXCEPTIONS
PARCEL I
1. Legal highways
2. Taxes now due and payable or hereafter to become due and payable
3. Zoning ordinances, restrictions of record and public utility or other
easements now in use or of record.
PARCEL II
PARCEL III
Zoning ordinances, restrictions of record and public utilities or other
easements now in use or of record, and the rights of the Wabash Railroad Company
under Agreements set forth in the deed recorded in Volume 1430 of Deeds, page
125.
PARCEL IV
Subject to legal highways.
1. Restrictions contained in deed from The Andersons, dated September 1,
1961 and recorded on Volume 1796 of Deeds, page 1.
2. Excepting and reserving to Xxxx X. Xxxxxxx, the grantor, her heirs,
assigns, tenants, licensees, employees, visitors and all persons for
the benefit or advantage of grantor, her heirs, assigns, tenants,
licensees, employees, visitors a RIGHT OF WAY over, across and upon
said premises forever.
3. Zoning ordinances, other restrictions of record, public utility or
other easements of record, and taxes and assessments due and payable
after the date hereof.
GENERAL:
1. Siding Agreement dated August 15, 1996 between Norfolk and Western
Railway Company and Xxxxxxx, Xxxxxxxxxxxx.
2. License dated January 1, 1958 between Xxxxxxx, Xxxxxxxxxxxx and Wabash
Railroad Company.
TOLEDO PERMITTED EXCEPTIONS
A. Excepting and reserving unto Xxxxxxx Corporation ("Grantor"), and
its successors and assigns, a non-exclusive easement over the following
described property:
That part of River Tract No.7, and its extension, and part of the Lower Island
(so called) in the Maumee River (also known as Grassy Point, Xxxxxxx'x Point and
Xxxxxx Xxxxxx), xx Xxxx 0, Xxxxxx Xxxxxx Reserve, City of Toledo, Lucas County,
Ohio, bounded and described as follows, bearings being based on and derived from
those on the maps of Toledo Harbor, Ohio Established Harbor lines by the U.S.
Corps of Engineers;
Commencing at the intersection of the centerline of Xxxxxx Street with the North
line of said River Tract No.7 (also the centerline of original South Avenue);
then South 89 degrees 48' 27" East 1141.07 feet, on said north line of River
Tract No.7, and its extension, to the Point of Beginning; then continuing South
89 degrees 48' 27" East 265.00 feet, on said River Tract line; then South 9
degrees 44' 08" East 22.33 feet to a line that is parallel to and a
perpendicular distance of 22.00 feet southward from said River Tract line; then
North 89 degrees 48' 27" West 203.85 feet, parallel to said River Tract line;
then North 71 degrees 06' 31" West 68.62 feet to the Point of Beginning;
containing 0.118 acres of land, more or less.
The easement herein reserved is subject to the following terms and conditions:
1. The foregoing easement shall be used by the Grantor and Xxxxxxx,
Xxxxxxxxxxxx ("Grantee"), their respective successors and assigns, agents,
servants, employees, tenants, visitors, licensees, invitees, and all other
persons for the benefit of the Grantor, the Grantee and their respective
successors and assigns, to freely pass and xxxxxx on foot or in vehicles of any
kind and description or with animals to and from the adjoining lands owned by
the Grantor and Grantee and public streets and right-of-ways.
2. Neither the Grantor nor the Grantee, nor their respective successors and
assigns, will park objects or vehicles upon said easement or otherwise obstruct
or block the same.
3. The Grantor may maintain the existing railroad sidetrack on said easement.
So long as said sidetrack is used for the exclusive benefit of the Grantor, the
cost of the maintenance thereof shall be the sole responsibility of the Grantor,
its successors and assigns. The Grantee and its successors and assigns shall,
however, have the right and privilege of building spur or sidetracks extending
from the sidetrack to the land of the Grantee. From and after the time that the
Grantee or its successors or assigns use said sidetrack, the Grantor, the
Grantee and their respective successors and assigns shall each thereafter pay
their equitable portions of the costs of the maintenance thereof.
4. No one using said sidetrack will permit cars to be moved or stand on the
sidetrack in such manner or for such periods of time that they will unreasonably
interfere with the free use of the tracks by the others entitled to use the
same.
5. The easement reserved shall inure to the benefit of and be binding upon the
parties, their successors and assigns, and all others hereafter acquiring any
interest or ownership in or right to use the lands of the Grantor served by such
easement and the land conveyed to the Grantee.
B. Agreement dated May 1, 1979 between Norfolk and Western Railway Company and
Cargill for driveway and occupation of Lessee's sidetrack.
C. Siding Agreement dated January 2, 1980 between Norfolk and Western Railway
Company, Wabash Railroad Company and Xxxxxxx, Inc. for the use, operation and
maintenance of five side tracts.
D. Private Side Track Agreement dated December 26, 1961 between The New York
Central Railroad Company and Xxxxxxx, Xxxxxxxxxxxx, as supplemented by that
certain Supplemental Side Track Agreement dated April 11, 1963.
EXHIBIT F
Railroad Agreements
Maumee Railroad Agreements
1. Siding Agreement dated August 15, 1996 between Norfolk and Western Railway
Company and Xxxxxxx, Xxxxxxxxxxxx.
2. License dated January 1, 1958 between Xxxxxxx, Xxxxxxxxxxxx and Wabash
Railroad Company.
Toledo Railroad Agreements
1. Agreement dated May 1, 1979 between Norfolk and Western Railway Company and
Cargill for driveway and occupation of Lessee's sidetrack.
2. Siding Agreement dated January 2, 1980 between Norfolk and Western Railway
Company, Wabash Railroad Company and Xxxxxxx, Inc. for the use, operation and
maintenance of five side tracts.
3. Private Side Track Agreement dated December 26, 1961 between The New York
Central Railroad Company and Xxxxxxx, Xxxxxxxxxxxx, as supplemented by that
certain Supplemental Side Track Agreement dated April 11, 1963 between The New
York Central Railroad Company and Xxxxxxx, Xxxxxxxxxxxx.
EXHIBIT G
RAILROAD LEASE - TOLEDO
1. Agreement dated May 1, 1979 between Norfolk and Western Railway Company and
Cargill for driveway and occupation of Lessee's sidetrack.
