LEASE AGREEMENT
THIS AGREEMENT, made effective as of August 31, 1994 by and between
PEAVEY COMPANY, a division of ConAgra, Inc., a Delaware corporation ("Peavey")
and XXXXX XXXXXXX COMPANY, a division of Harvest States Cooperative ("Amber").
WITNESSETH:
WHEREAS, Peavey owns and operates a grain terminal facility at Huron,
Ohio which includes a mill building not presently used by Peavey and which has
heretofore been leased to Amber;
WHEREAS, Amber desires to continue to lease the mill building portion
of Peavey's facility for the operation of a durum flour mill and to continue
receiving certain grain handling services from Peavey;
WHEREAS, Peavey and Amber desire to consolidate various amendments to
the prior lease, make certain modifications thereto and enter into this new
lease agreement to supersede the prior lease and amendments relative to the
foregoing;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained and other good and valuable consideration, the parties hereby agree as
follows:
1. LEASED PROPERTY. Peavey hereby leases to Amber and Amber hereby
hires and takes from Peavey, upon all the terms and conditions herein contained,
the real and personal property described in this section 1 (hereinafter
collectively referred to as "Leased Property"), all of which is located at
Peavey's grain terminal in Huron, Ohio (hereinafter the "Terminal"). The
Terminal, including the leased Property hereinafter described, is located on the
real estate legally described on Exhibit A attached hereto. The leased Property
consists of the following:
A. The exclusive use of the Mill Building, shown outlined in red on the
drawing attached hereto as Exhibit B, together with all fixtures and
improvements located thereon (hereinafter sometimes referred to as the "Mill
Building"); and
B. The exclusive use of approximately 2,000 square feet of office space
(hereinafter "Office Space") designated by Peavey in the Office Building at the
Terminal (hereinafter "Office Building"), shown outlined in green on the drawing
attached hereto as Exhibit B, together with the non-exclusive right to shared
use of the conference room in the Office Building at mutually convenient times.
C. The non-exclusive use of driveways, parking areas and sidewalks at
the Terminal designated by Peavey for vehicular and pedestrian access to and
from the Mill Building and the Office Building;
D. The exclusive use only of tracks numbered "1" through "6" shown in
xxxxx on Exhibit B attached hereto (hereinafter "Rail Tracks") and the
non-exclusive use of all other rail tracks located at or upon the Terminal,
together with the non-exclusive use of the dock, wharf and vessel loading
facilities, provided that Amber's use thereof does not unreasonably interfere
with Peavey's operations.
E. The warehouse building, shown outlines in blue on Exhibit B attached
hereto.
F. The "Train Shed" for its full width and 200 feet into the shed.
G. Non-exclusive use, on the basis of the first vessel to arrive is the
first vessel to be unloaded, of the self-unloading vessel xxxxxx and associated
equipment.
2. USE.
A. Amber. Amber's use of the Leased Property shall be limited to the
milling of durum flour or other flour products produced and sold solely for use
in the manufacture of pasta, noodles and macaroni products, and residual
by-products, including uses incidental or related thereto (the "Permitted
Uses"). Amber expressly acknowledges that milling of other flour products is
prohibited hereby unless the express consent of Peavey is first obtained in
writing, except that Amber shall have the option to produce a maximum of 5,000
cwt/day of hard flour for non-permitted uses on a per day basis (i.e., not
computed on the basis of multiple day averages). Xxxxx xxx exercise this option
at any time during the term of this agreement upon giving Peavey not less than
thirty (30) days prior written notice thereof, which notice shall be accompanied
by a fee of $125,000 payable to Peavey, which fee shall be payable annually
thereafter on each anniversary of the date of exercise of this option until the
obligation to continue paying said fee ceases as provided in this paragraph.
Peavey shall have the right to have as independent inspector, Buhler, Inc.,
confirm that Amber is not producing more than 5,000 cwt/day of hard flour for
non-permitted uses from the Leased Property, and Amber shall give the
independent inspector access on a confidential basis to the Leased Property and
Amber's books and records in order to verify compliance with this paragraph.
Amber's obligation to pay the annual $125,000 fee to produce hard flour for
non-permitted uses shall cease upon the sooner to occur of the following:
(i) Upon expiration of the initial lease term on September 30, 2007
(or the renewal terms, if any, which the parties may subsequently agree upon).
(ii) Termination of the lease agreement as a result of Amber
exercising its option to purchase the facility and closing on the purchase.
(iii) Amber ceases production of hard flour for non-permitted uses.
No prorations or rebates will be made of the annual $125,000 hard flour
production fee paid to Peavey by Amber if any of the three events referenced
immediately above occurs in mid-year, after the annual fee is due and payable.
X. Xxxxxx. Xxxxx agrees that its use of the Leased Property shall not
unreasonably interfere with Peavey's operations at the Terminal for purposes for
which Peavey uses the Terminal as of the date hereof. Peavey agrees that it will
not mill durum flour at the Terminal during the term hereof without Amber's
express prior written consent. Peavey further agrees that any other expansions
of its operations at the Terminal shall be implemented with due regard for
Amber's operations and the rights and obligations of the parties hereunder.
C. Common Areas. Peavey and Amber acknowledge that certain areas
(hereinafter "Common Areas") of the Terminal will be used in common by Peavey
and Amber. Peavey reserves that right to establish reasonable rules from time to
time for shared use of such Common Areas and Amber agrees to comply with such
rules. Both parties agree at all times to use the Common Areas cooperatively and
with due regard for the operations of the other.
3. CONSTRUCTION.
A. Improvements. At Amber's sole expense, Xxxxx xxx from time to time
erect, install and construct all improvements, alterations, fixtures and
equipment needed at the Leased Property for the safe and effective operation of
Amber's business thereon (hereinafter sometimes referred to as the "Amber
Improvements"). Prior to commencement of any construction on the Leased
Property, Amber shall submit final and complete plans and specifications for the
Amber Improvements and all contracts for the labor and materials to be supplied
to Amber at the Leased Property (hereinafter collectively referred to as the
"Contract Documents") to Peavey for approval. Peavey agrees to state any
objections to the Contract Documents in writing within fifteen (15) days after
all Contract Documents have been received by Peavey, which objections shall be
limited to matters which do or could adversely affect Peavey's operations at the
Terminal or the value of Peavey's property at the Terminal. Construction shall
not commence until all such objections are cured or waived and Peavey has given
its written approval to the Contract Documents.
B. Protection of Peavey. All Contract Documents shall contain a
conspicuous statement, satisfactory to Peavey in form and substance, that Peavey
shall have no liability to contractors, subcontractors or material suppliers and
that Peavey's interest in the Leased Property shall not be subject to lien by
unpaid labor or material suppliers. Peavey also reserves the right to post signs
on or near the Leased Property giving notice that Peavey is the owner of some of
the property under construction and that its interest therein is not subject to
lien. Amber shall notify Peavey of all construction and permanent loans
affecting the Leased Property or the Amber Improvements thereon and Peavey
likewise shall have the right to notify such lenders that Peavey shall have no
responsibility for payment of construction costs or loan repayments. Peavey
reserves the right to require a payment bond or similar form of security that
Amber shall fully pay all labor and material suppliers at the Leased Property.
C. Contract Bids and Awards. Prior to awarding any prime contract for
construction, Amber shall notify Peavey of the contractor to whom the contract
will be awarded and shall allow Peavey at least five (5) business days prior to
award to object to the contractor. If Peavey reasonably objects to the
contractor's qualifications to perform the contract work in accordance with the
Contract Documents, then that contract shall not be awarded until Peavey's
objections are resolved.
D. Construction Insurance. All contractors and subcontractors working
at, upon or near the Leased Property shall be required by the Contract Documents
to carry contractor's liability insurance and builder's risk in form and
substance satisfactory to Xxxxx and issued by responsible insurance companies.
All such policies shall name Xxxxx and Amber as additional insureds. The
Contract Documents shall require all contractors and other labor and material
suppliers to comply with Peavey's human safety rules and standards in the
performance of all work at the Leased Property.
4. TERM.
A. Initial Term. The Initial Term of this Agreement shall be three (3)
years and one (1) month, commencing on the "effective date" as stated in the
first paragraph of this Agreement and ending on September 30, 1997.
B. Renewal Terms. At Amber's option, provided that Amber is not in
default (subject to any rights to cure) hereunder during the six (6) months
preceding the expiration of the then current term, this Agreement may be renewed
for up to five (5) renewal terms of five (5) years each (each of which is
referred to herein as a "Renewal Term") commencing upon the expiration of the
Initial Term of the then current Renewal Term. Amber's renewal options shall be
exercised by giving written notice thereof to Peavey at least six (6) months
prior to commencement of the Renewal Term for which the option is being
exercised, and shall only be exercisable if any and all options for preceding
Renewal Terms have been exercised. Rent and other charges payable by Amber for
the First, Second and Third Renewal Terms shall be as stated in Paragraph 6 and
elsewhere in this Agreement. The Fourth and Fifth Renewal Terms shall be at such
commercially reasonable rental and other charges as the parties shall negotiate
in good faith and agree upon (which shall be computed in a manner consistent
with, and shall in no event be less than, the rental and other charges payable
hereunder during the Renewal Term immediately preceding the Renewal Term for
which this option to renew is being exercised).
5. HANDLING AND STORAGE.
A. Services. Xxxxx agrees to unload, store in upright bins and transfer
to the Mill Building, as hereinafter provided, all inbound grain shipments for
Amber. The parties contemplate that inbound grain shipments will arrive at the
Terminal by rail; however, Xxxxx shall unload grain inbound by vessel or truck
if Amber so requires. Amber agrees to give Peavey at least three (3) working
days advance notice of inbound rail shipments and at least fourteen (14) working
days advance notice of inbound vessel shipments. When vessels are loaded for
Amber, Amber shall thereupon promptly notify Peavey of the vessel's estimated
time of arrival at the Terminal. If Xxxxx receives such advance notice and if
the inbound shipment actually arrives and is cleared for discharge as scheduled,
Peavey agrees to unload the grain in a timely manner so as to avoid demurrage
liability.
In the event Peavey fails to unload any train in a timely manner, (26
cars per 24 hours after first 7:00 a.m., Saturdays, Sundays, Holidays excluded)
and Amber is charged any demurrage costs, expenses, or penalties, at the
published rate, then Peavey shall reimburse Amber in full for all such amounts.
Peavey (or Amber during non-Peavey operating hours) shall continue to
weigh all outbound trucks by Amber, at Amber's option. The cost for such service
from the effective date hereof through September 30, 1995, shall be $5.00 per
truck, Peavey shall not increase said rate in any year by more than the increase
in the U.S. Consumer Price Index (the "CPI").
B. Storage.
(i) All Amber grain stored at the Terminal by Peavey shall be stored
on an identity-preserved basis. For purposes of handling and storage charges,
all grain transfers into and out of storage shall be treated on a first-in,
first-out basis. Peavey agrees to have available for Amber at all times during
the term hereof sufficient space for storage of 300,000 bushels of grain.
(ii) If Amber requires additional storage space at any time during
the term hereof because of expansion of Amber's milling capacity, Peavey agrees
to provide 50,000 bushels of dedicated identity-preserved storage for each
addition of 1,000 cwt per 24 hours of milling capacity. Peavey Grain Company
shall make this additional space available to Amber in four month periods. A 30
day notice must be given to Peavey prior to each four-month period for the use
of the said space. A minimum rent of $4,250.00 per month for each 50,000 bushels
of additional space will be paid on the first day of each month. This minimum
rent shall be increased to $5,000.00 per month for the Renewal Terms. This
minimum rent shall be credited against the handling charges under Paragraph 6.B,
below.
(iii) Peavey will store Xxxxx xxxxx unloaded from rail cars or
vessels in bins with a maximum capacity of 45,000 bushels for the first 300,000
bushels and will limit Xxxxx xxxxx storage to the bins so specified by Peavey.
Once Peavey has specified the bins to be used for storage of Xxxxx xxxxx, Peavey
will not change the specified storage spaces without reasonable cause and prior
notice to Amber, and will give Amber storage bins of comparable size and
condition. Peavey will transfer grain from storage to the mill from those bins
specified (four maximum) by Amber and in the approximate mix percentages
requested by Amber.
(iv) Peavey further agrees to transfer grain from storage to the
mill at Amber's request five times a week, Sundays and Holidays excluded. Amber
will notify Peavey at least 24 hours prior to each required transfer with the
quantities and specific storage bins where those quantities are stored. When the
mill's capacity is expanded to 9,000 cwt/24 hours (or more), Peavey agrees to
transfer additional grain (to the extent such grain is available from Amber's
storage in Peavey's facility) so as not to cause Amber to run out of wheat and
thus interrupt normal business operations.
(v) If Peavey in good faith determines it has Storage Space
available, over and above Amber's allocated space, and a self-unloading vessel
arrives loaded with bushels over and above Amber's allocated space, then Peavey
agrees to provide said additional space (up to a maximum of 200,000 bushels) to
Amber to allow Amber adequate storage space to finish unloading. There shall be
no charge for the additional storage space for a 24-hour period commencing after
the vessel completes unloading. If after said 24-hour period Amber still has
bushels stored in excess of its allocated space, then Amber agrees to pay Peavey
one-tenth of a cent ($.001) per bushel per day on the bushels which exceed its
allocated space, subject to periodic adjustment by Peavey to keep pace with
inflation as indicated by the CPI. This charge is payable and not subject to
credit or offset by or against any other charges. If Peavey does not have
additional storage space over Amber's allocated space while the vessel is
unloading, then the vessel must stop unloading while Peavey transfers grain to
Amber's mill, and the additional lay time will be for the account of Amber.
C. Outbound Shipments. Amber shall be solely responsible for shipment
of outbound product, including designation of and contracting with carriers.
Notwithstanding the foregoing, all outbound shipping shall be scheduled in
coordination with Peavey's facility manager at the Terminal so as not
unreasonably to interfere with Peavey's operations.
D. Handling and Storage Restrictions.
(i) Peavey shall be required to provide the aforesaid handling and
storage services only for wheat to be milled into the products specified in
Paragraph 2A above at the Leased Property and for no other or additional grain
or grain products.
(ii) All handling shrink shall be for the account of Amber, except
that Peavey shall reimburse Amber for any shrink in excess of 1% of inbound
weights taken by Peavey which occurs while grain lies within the exclusive
custody and control of Peavey, at the market value thereof on the date such
excess shrinkage is first identified and known to both parties. Peavey agrees
that it shall use the same standard care when handling and storing Amber's grain
as it uses when Peavey handles it own grain, including, without limitation,
periodically monitoring the temperature of and (at Amber's request and expense)
the turning of any stored product. Peavey agrees that any wheat of Amber's lost
or damaged during the blending of Amber's grain shall not be deemed to be
shrinkage and Peavey shall reimburse Amber for any such losses caused by Peavey.
(iii) Peavey assumes no responsibility and shall have no liability
to Amber hereunder if grain is received at the Terminal in condition or of a
quality different from the condition or quality which Amber expects or is
entitled to receive. Peavey agrees to give access to Amber and its agents for
the purpose of making reasonable inspection of inbound grain shipments.
(iv) Peavey agrees to give Amber monthly inventory reports which
shall be conclusively deemed accurate unless a written objection is reasonably
made by Amber. If Amber objects to any inventory report made by Peavey and the
parties cannot resolve the differences, then the disputed quantities of grain
shall be loaded out, weighed and replaced in storage. The scale weights thus
taken shall be conclusive and the cost of the loading and weighing shall be
borne equally by the parties hereto. Peavey shall provide Amber with house
unload and house transfer weights of all grain handled by Peavey for Amber. All
transfers and unload weights will be received in writing within 24 hours. Amber
will accept batch weights for its accounting procedures. However, if a railroad
shipper will not accept batch weights, Peavey will weigh the cars at a cost to
Amber to be agreed upon.
(v) Amber shall provide to Peavey the grade, quantity, quality and
car number or vessel name at least three (3) working days prior to arrival of
Amber's grain. Wheat designated for separate storage shall be limited to no more
than eight (8) rail wheat grade classifications and no more than eight (8)
vessel wheat grade classifications provided that no more than a total of eight
(8) wheat grade classifications (whether rail or vessel) shall be subject to
separate storage at any one time, provided Amber shall pay on demand by Peavey
any demurrage resulting from requiring multiple separations. Procedures for
handling multiple wheat grade separations shall be mutually determined by
Peavey's and Amber's respective local managers at the Terminal.
(vi) Peavey, when transferring Amber's wheat from its elevators to
the mill, will, upon request of Amber, provide up to four (4) grades for
blending and shall use reasonable care to provide a requested blend, but will
not guarantee any specific percentage blend. Amber shall not request less than
30,000 bushels of a specified blend or mix at any one time.
E. Vessel Discharge Rates; Holidays. Peavey will accomplish minimum
vessel dishcarge rates per the following (provided, however, Peavey must use
reasonable efforts to exceed said minimum):
OVERALL BEAM DEPTH HATCH SIZE MINIMUM DISCHARGE
LENGTH X X RATE
Canadian Ranger, 15,000/BU/HR.
self-unloader or similar
vessel
WILLOWGLEN 5,500/BU/HR.
less than 630' less than 60' less than 35' greater than 38' greater than 11' 5,300/BU/HR.
less than 680' less than 67' less than 37' greater than 48' greater than 11' 4,600/BU/HR.
less than 730' less than 75' less than 39' greater than 58' greater than 11' 4,200/BU/HR.
The discharge time will be calculated from the time the vessel is along
side Peavey's dock and ready to discharge until the vessel is completely
unloaded and all equipment used for unloading purposes has been removed from the
vessel.
Peavey will unload bulk carrier vessels based on said rates everyday
except holidays. Holidays shall be: New Year's Eve Day, New Year's Day,
President's Day, Good Friday, Easter, Memorial Day, Independence Day (July 4th),
Labor Day, Columbus Day, Thanksgiving Day, Friday after Thanksgiving Day,
Christmas Eve Day, Christmas Day, International Longshoremen's Union Meeting
Days, and any other days designated as holidays by the City of Huron, the State
of Ohio, the International Longshoremen's Union, the United States Government or
other governmental authority having lawful jurisdiction. Should any of the
stipulated holidays fall on a Sunday, the following Monday will be deemed as
that holiday. If they fall on Saturday, the preceding Friday will be deemed as
that holiday. Peavey shall not be required to unload on holidays. Down-time
during vessel discharge for reasons not under Peavey's control will not be
calculated toward unload rate. Peavey shall not be liable to Amber for any loss,
damage, delay or failure of performance resulting directly or indirectly from
any cause beyond its reasonable control, including but not limited to force
majeure.
Peavey will unload self-unloading vessels based on said rates every day
except holidays which are recognized by Peavey and provided to Peavey employees.
As in the past, no vessels with side tanks, or multi-level decks will
be unloaded. All vessels are subject to Peavey's approval. The draft of any
vessel must be compatible with the depth of Peavey's slip.
6. RENT AND HANDLING CHARGES.
A. Rent. Amber agrees to pay Peavey rent for rights and privileges
granted herein in the amount of (***) for the Initial Term (which expires
September 30, 1997), payable in monthly installments of (***) each commencing on
the first day of the Initial Term and continuing on the first day of every
calendar month thereafter during the Initial Term, subject to adjustment as
hereinafter provided. Rent for the First Renewal Term (which expires on
September 30, 2002) shall be (***), payable in monthly installments of (***) on
the first day of each calendar month during said First Renewal Term, subject to
adjustment as hereinafter provided. Rent for the Second Renewal Term (which
expires on September 30, 2007) shall be (***), payable in monthly installments
of (***) on the first day of each calendar month during said Second Renewal
Term, subject to adjustment as hereinafter provided. Rent for the Third Renewal
Term (which, if the purchase option in Paragraph 19C is not exercised, expires
September 30, 2012) shall be (***), payable in monthly installments of (***) on
the first day of each calendar month during said Third Renewal Term, subject to
adjustment as hereinafter provided.
B. Handling Charges. Amber agrees to pay Peavey for handling inbound
grain unloaded by any mode by Peavey at the Terminal based upon the following
rate schedules:
(i) During the Initial Term -
for the first 50,000,000 bu. $ (***) per bu.
for the next 5,000,000 bu. (***) per bu.
for bu. over 10,000,000 (***) per bu.
(ii) During the First Renewal Term -
for the first 5,000,000 bu. $ (***) per bu.
for the next 5,000,000 bu. (***) per bu.
for bu. over 10,000,000 (***) per bu.
(iii) During the Second Renewal Term -
for the first 5,000,000 bu. $ (***) per bu.
for the next 5,000,000 bu. (***) per bu.
for bu. over 10,000,000 (***) per bu.
(iv) During the Third Renewal Term -
for the first 5,000,000 bu. $ (***) per bu.
for the next 5,000,000 bu. (***) per bu.
for bu. over 10,000,000 (***) per bu.
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request,
with the Securities Exchange Commission pursuant to Rule 406 of the
Securities Act of 1933, as amended.
The foregoing rates are based upon annual volumes of grain measured on October
1, 1995 and October 1, of each year thereafter during the initial and any
Renewal Terms, provided the charges on the volumes put through from the
Effective Date through September 30, 1994, shall be computed at the same rate as
is used on the grain put through for the year ending October 1, 1995.
Handling charges shall be computed and invoiced on an annual basis. The
twelve monthly rental payments received by Peavey for each lease year under
Paragraphs 5.B(ii) and 6.A above shall be credited against the annual invoice
for handling charges payable under this Paragraph 6.B for each lease year. If
the total annual handling charges exceed the total of such annual rental
payments, then the amount of handling charges that exceed the rental charges for
each lease year shall be paid to Peavey annually upon receipt of invoice.
With the credit for rent exception set forth above, the handling charge
is in addition to any other charges provided in this Lease.
C. Storage Charges. Peavey agrees to store 300,000 bu. of Amber's grain
for up to thirty (30) days at no additional charge. Storage of additional
volumes, or for longer periods of time, shall be invoiced monthly by Peavey at
its then current published rate for identity-preserved storage of wheat at the
Terminal, except as otherwise specifically provided in this Lease.
D. Unload Charges for Self-Unloading Vessels. Amber shall pay Peavey a
surcharge of $0.0075 per bushel of grain unloaded from self-unloading vessels.
If at any time in the future Peavey finds a way reasonably acceptable to it to
dry grain or load out rail cars, or both, while a self-unloading vessel is
unloading into the facility, the payment hereunder shall be reduced accordingly,
provided Peavey shall not be required to make any substantial capital
expenditure in order to accomplish the same.
E. Unload Charges for Non-Self-Unloading Vessels. For all vessels other
than self-unloading vessels, Amber agrees to pay Peavey an unload charge of six
and one-half cents ($0.065) per bushel for a period of three (3) years from the
date hereof. Every three (3) years during the ongoing term (including renewals)
of this Lease, the unload charge will be reviewed and a new rate covering
Peavey's increased or decreased cost will be established or, if there has been
no change in Peavey's cost, the old rate continued. Any increase in the rate
shall be limited to not more than ten percent (10%) of the previous rate. Any
decrease shall not be limited.
F. Dockage Charge. Peavey agrees to maintain its dockage rates at ten
cents ($0.10) per gross registered ton of the docking vessel for two (2)
years from August 14, 1992. At the end of each two (2) year period (including
renewals) thereafter, Amber and Peavey will obtain information concerning the
dockage fees charged by the six largest, by volume, loading and unloading grain
facilities on the Great Lakes, and Peavey will charge a dockage rate at the
average of said six dockage fee rates during each ensuing two (2) years. Peavey
agrees to accordingly amend its tariff to allow for these rates.
G. Train Shed Rent. Amber shall pay Peavey $10,000 per year rent for
the Train Shed, which shall be payable on the first day of each calendar month
during the term of this Agreement in installments of $833.34 each.
H. Additional Rent. All other charges which are the responsibility of
Amber hereunder (including without limitation real estate and personal property
taxes, assessments, insurance, utilities and maintenance) shall be deemed
additional rent hereunder, whether paid to Peavey or to third parties and
whether Peavey is or is not directly or indirectly liable therefor.
7. INDEPENDENT OPERATIONS. It is understood and agreed by the parties
that Amber is acting entirely as an independent contractor and not in any
respect as an agent, employee, representative, partner or coventurer with
Peavey. As such, Amber shall, without interference by or on behalf of Peavey,
have full authority over the operation of its business on the Leased Property,
including without limitation the authority to establish prices for its goods and
services.
8. EXPENSES.
A. Equipment and Supplies. Amber shall provide at its own expense all
tools, machinery, equipment, supplies, fuel and utilities which are required for
the operation of its business at the Leased Property. All such items shall be
and remain the property of Amber, unless affixed to the real property which is
owned by Peavey. Nothwithstanding anything to the contrary contained herein,
Peavey shall not be required to supply any such items, even if necessary to
replace obsolete parts of the Leased Property. If utilities supplied to the Mill
Building are furnished through a common delivery system to the Terminal, then
Amber shall, at Amber's expense, cause separate meters to be installed prior to
commencing use of any such utilities for construction or mill operations.
B. Maintenance. Amber agrees at its own expense to keep the Leased
Property, the Rail Tracks and Amber's property at the Terminal in safe, sound
and sanitary condition and to provide all repairs and maintenance required at
the Leased Property, the Rail Tracks or to Amber's property, or any part
thereof, including without limitation structural repairs and maintenance which
would normally be classified as capital expenditures. Peavey shall have no
liability for maintenance or repair to Amber's property at the Terminal, except
with respect to any such matters required as a direct result of the negligence
or recklessness of Peavey, its agents, employees or contractors.
C. Shared Maintenance. Whenever repair or maintenance is required to
areas of the Terminal used commonly by Peavey and Amber (but excluding the Rail
Tracks or other shared items, such as the Train Shed and the truck scale, for
which Amber pays a user fee designated for that item), the costs of such repair
and maintenance shall be shared by the parties in proportion to their respective
use of the items repaired or maintained. In the case of repair or maintenance of
the Rail Tracks, Amber agrees to repair and maintain in a safe and serviceable
condition, at Amber's sole expense, the Rail Tracks. Peavey agrees to repair and
maintain in a safe and serviceable condition, at Peavey's sole expense, all of
the other rail tracks at the Terminal which are in use by Xxxxxx, Xxxxx or both.
D. Safety. Whenever in Peavey's reasonable judgment any condition
exists at or upon the Leased Property which threatens the safety of Peavey's
property or of persons at or near the Terminal, then Peavey shall so notify
Amber and the unsafe condition shall be promptly corrected at Amber's expense.
If Amber fails promptly to correct any such unsafe conditions, then Peavey may
upon notice do so at its own expense and the actual cost thereof shall become
additional rent immediately due and payable hereunder. Whenever in Amber's
reasonable judgment any condition exists at or upon the Terminal (excluding the
Leased Property) which threatens the safety or sanitation of the Leased
Property, or of persons at the Leased Property, then Amber shall so notify
Peavey and the unsafe or unsanitary condition shall be promptly corrected by
Peavey and, if Peavey fails to do so, Xxxxx xxx correct the condition and Peavey
shall reimburse Amber for the actual cost thereof, on demand.
E. Taxes and Assessments. Amber agrees to pay as the same become due
all real property taxes, personal property taxes and special assessments which
are assessed against the Mill Building and Amber's property and which are due
and payable during any term of this Agreement. Peavey and Amber agree to
cooperate to obtain a division of the Mill Building from the Terminal property
for purposes of real estate and personal property tax assessments.
9. CONDITION OF LEASED PROPERTY. Amber acknowledges that it has had
ample opportunity to inspect the Leased Property and is entering into this
Agreement solely based upon its inspection thereof. Amber acknowledges that
there are no representations or warranties other than those expressly set forth
in this Agreement and further that Peavey makes no representations, warranties,
affirmations or assurances as to the condition of Terminal or of the Leased
Property, or its suitability for use as a durum mill or for any other purpose
whatsoever.
10. IMPROVEMENTS. Except as required or permitted pursuant to
Paragraphs 3 and 8 above, Amber shall make no permanent improvements or
alterations to the Leased Property without the express prior written consent of
Peavey in each instance. Unless Peavey otherwise agrees, all such improvements
and alterations shall be removed by Amber at the Expiration of the term of this
Agreement or, in the case of permanent improvements or alterations, shall become
the property of Peavey upon the termination of this Agreement regardless of the
time or cause of such termination. At the termination of the Lease Agreement,
Amber shall be granted an additional sixty (60) days to remove all of its
property and equipment at $5,000.00 a month rent.
11. INSURANCE.
A. Property. Amber shall procure and maintain throughout all terms of
this Agreement a policy or policies of "all-risk" property insurance, as that
term is generally understood within the insurance industry at the time the
policy or policies are procured, including boiler and machinery coverage, from
insurance carriers approved by Peavey. The said policies shall insure, at full
insurable replacement cost, all real and personal property of Peavey and Amber
which is located at or upon the Leased Property. Peavey shall be named a loss
payee on all such policies of property insurance, as its interest may appear,
and such policies shall provide for continuation of rental income to Peavey in
the event of any property loss or damage covered by the policy.
B. Builder's Risk. If required by any of Amber's contractors providing
labor or materials at or upon the Leased Property, at any time during any term
of this Agreement, Amber shall procure Builder's Risk Insurance as so required,
which insurance shall name Peavey as an additional insured.
C. Liability. Amber shall procure and maintain throughout all terms of
this Agreement a policy or policies of comprehensive general liability insurance
with a combined single limit of coverage of not less than Ten Million Dollars
($10,000,000). Peavey shall be named as an additional insured on all such
policies, and they shall be properly endorsed to include coverage for
contractual liability of Amber pursuant to this Agreement. Amber shall either
procure such coverage in behalf of its contractors providing labor and materials
at or to the Leased Property or shall require that said contractors procure
similar liability insurance, naming Amber and Peavey as additional insureds.
Liability insurance coverage maintained by Amber's contractors shall not relieve
Amber of its obligation to procure insurance or reduce the amount of coverage
required hereunder.
D. Worker's Compensation. Amber shall procure and maintain throughout
all terms of this Agreement worker's compensation insurance in form and amount
as required by applicable statute.
E. Waiver of Subrogation. Amber agrees that each of its insurers
providing coverage herein required shall waive all claims, causes of action and
charges against Peavey for loss or damage to property or injury or death of
persons at or upon the Leased Property, regardless of negligence or fault, and
that such waiver of claims (by subrogation or otherwise) shall be written in the
policy provisions.
F. Evidence of Insurance. Amber shall provide, within five (5) business
days after any request therefor made by Peavey, duly executed certificates of
insurance establishing that the coverage herein required is fully paid and in
full force and effect. The said certificates and underlying policies shall
specifically provide that no change, modification or cancellation of coverage
shall be effective until at least thirty (30) days after written notice thereof
to Peavey, given as herein required.
12. INDEMNITY. Amber agrees to indemnify and hold Peavey harmless from
and against any and all claims, costs, expenses, actions, causes, liens,
liabilities, damages, judgments and attorneys fees arising from or connected
with property damage or personal injury or death caused directly or indirectly
by Amber's acts or omissions as lessee, occupant or operator of or at the Leased
Property, except any such claims, costs, expenses, actions, causes, charges,
liens, liabilities, damages, judgments or attorneys fees which arise from or are
connected with any property damage or personal injury or death caused by
Peavey's negligent acts or omissions. Peavey agrees to indemnify and hold Amber
harmless from and against any and all claims, costs, expenses, actions, causes,
charges, liens, liabilities, damages, judgments and attorney fees arising from
or connected with property damage or personal injury or death caused by Peavey's
operations at the Terminal, except any such claims, costs, expenses, actions,
causes, charges, liens, liabilities, damages, judgment or attorneys fees which
arise from or are connected with any property damage or personal injury or death
caused by Amber's negligent acts or omissions.
13. DAMAGE TO LEASED PROPERTY.
A. Insurance Proceeds. In the event of any loss or damage to the Leased
Property, then Peavey and Amber shall jointly make, negotiate and resolve the
claim arising therefrom against the applicable insurance policies, but each
party alone has the right to resolve, settle or compromise the portions of such
claim arising from loss or damage to that party's property. Insurance proceeds
received shall be apportioned equitably by the parties in proportion to the
value of their lost or damaged property for which proceeds are paid. Each party
shall account to the other for application of insurance proceeds received
consistent with requirements hereof.
B. Reconstruction. Unless otherwise agreed by the parties, any loss or
damage to the Leased Property shall be promptly repaired, restored or replaced
to a condition at least equal to the condition of the Leased Property prior to
the occurrence of the loss or damage. Notwithstanding the foregoing, however,
neither party hereunder shall be required to spend more time than the amount of
insurance proceeds actually received in effecting such repair, restoration or
replacement. Prior to commencement of any repair, restoration or replacement of
any lost or damaged part of the Leased Property, both parties shall review and
approve the plans, specifications and contracts for the repair, restoration or
replacement.
C. Termination of Lease. If the parties agree that the lost or damaged
part or parts of the Leased Property shall not be repaired, restored or
replaced, and if the Leased Property thereafter is not suitable for operation of
a durum flour mill, then this Lease shall be deemed terminated as of the date of
the occurrence of the loss or damage. In such event, Amber shall assign and pay
over to Peavey all insurance proceeds received by Amber for loss or damage to
improvements at or upon the Leased Property which would have become Peavey's
property upon termination hereof pursuant to section 18 below.
14. LIENS. Amber agrees that it shall neither cause nor permit
mechanics' or materialmens' liens to be imposed upon the Leased Property at any
time. If any such lien is placed against the Leased Property, Amber shall
promptly cause the lien to be discharged or, if Amber wishes to defend the lien
claim by proper legal proceedings, Amber shall establish such security as Peavey
may require for the payment of the lien at the conclusion of such legal
proceedings. Any sums which Peavey is required to spend in defense of any such
lien shall be deemed additional rent immediately due and payable hereunder.
15. CONDEMNATION. If the Leased Property or any part thereof shall be
taken by any authority under the power of eminent domain, Amber and Peavey shall
each have claims for compensation for their own property located at or upon the
Leased Property. In addition, each party shall have its claim for relocation or
other allowable expenses in any condemnation proceedings. Such claims shall be
jointly prosecuted if required by the condemning authority, but Peavey and Amber
each shall pay their own expenses therein. If the Leased Property, after
conveyance of the portion thereof taken for public use, is no longer operable
for Amber's purposes hereunder, then this lease shall be terminated as of the
date of the taking.
16. DEFAULT. Upon default by either party under the terms of this
Agreement, the other party shall have all and cumulatively then rights and
remedies provided by law and by this Agreement; provided, however, that prior to
exercise of any such rights or remedies, notice of default shall be given to the
defaulting party allowing such party ten (10) days following said notice to cure
the default. In the event of a default which cannot reasonably be cured in ten
(10) days, the said period for cure shall be extended only for so long as the
defaulting party diligently and continuously works toward effecting such cure.
In the event either party breaches any of the terms and conditions of this Lease
Agreement and the injured party initiates either litigation or arbitration, then
the losing party shall reimburse the prevailing party for any and all costs or
expenses of such proceedings, including reasonable attorney's fees.
17. WAIVER. No waiver of any right or remedy by either party shall be
construed to be a waiver of other rights or remedies of such party, or of the
waived right or remedy for any future occurrence.
18. SURRENDER. Upon the effective date of termination of this
Agreement, without regard to the cause or time of such termination, Amber shall
cease its operations at the Leased Property and shall remove all of its property
therefrom. The Leased Property shall be restored to its original condition,
subject only to ordinary wear and tear and to modifications and substitutions
permitted or accepted by Peavey. The parties understand and agree that
improvements previously or hereafter made by Amber to the Leased Property
include certain permanent fixtures and improvements which, upon the termination
of this Agreement, shall become the property of Peavey without additional
consideration therefor. Nothing herein shall be construed to permit Amber to
remove from the Leased Property any structural modifications, permanent
improvements, fixtures or other items which have become integral with Peavey's
real or personal property at the Terminal.
19. RIGHT OF REFUSAL; OPTION TO PURCHASE.
A. Right of First Refusal to Amber. Peavey hereby grants to Amber for
the entire term of this Agreement a right of refusal to purchase the Terminal
upon terms and conditions offered to and accepted by Peavey from any third party
purchaser (excluding any related or affiliated corporation or other entity). If
Peavey should receive any such acceptable offer, Peavey shall give Amber written
notice thereof including all terms and conditions of the offer. Amber shall have
thirty (30) days in which to exercise its right of refusal by giving written
notice of acceptance to Peavey. If Amber should exercise its right of refusal,
Amber shall become the purchaser of the Terminal upon terms and conditions
identical to those contained in the written offer from the third party buyer to
Peavey. This right of refusal applies only to a sale of the Terminal alone and
not to a sale of the Terminal together with other substantial assets of Peavey's
Grain Merchandising Division.
B. Right of First Refusal to Peavey. Amber hereby grants to Peavey a
right of refusal to purchase Amber's assets at the Leased Property upon terms
and conditions offered to and accepted by Amber from any third party purchaser.
If Amber receives any such acceptable offer, Amber will give Peavey written
notice thereof including all terms and conditions of the offer. Peavey shall
then have thirty (30) days in which to exercise its right of refusal by giving
written notice of acceptance to Amber. If Peavey exercises its right of refusal
hereunder, Peavey shall become the purchaser of Amber's assets at the Leased
Property upon all of the terms and conditions contained in the offer from the
third party purchaser. In the event Peavey fails to exercise its right of first
refusal within thirty (30) days, then Amber shall be free to sell Amber's assets
at the Leased Property to the third party offering to purchase, with the written
consent of Peavey, so long as the sale is on the same terms and conditions
offered to Peavey. The right of first refusal granted to Peavey pursuant to this
Xxxxxxxxx x0X shall not apply to the sale or lease by Amber of Amber's assets to
any person or entity to whom Amber is permitted to assign its rights and
obligations under this Agreement under the terms of Paragraph 21.
C. Option to Purchase by Amber. Provided Amber has exercised all
renewal options under this Lease and is not otherwise in default hereunder,
Amber shall have the right and option to purchase the entire Terminal on October
1, 2007 (the "closing date"), for a cash purchase price of (***), subject
to the terms and conditions stated herein, which option may only be exercised by
Amber giving Peavey written notice of its election to exercise this option to
purchase not more than two (2) years and not less than six (6) months prior to
said date. Except for the obligations of repair and maintenance imposed upon
Amber pursuant to the terms of this Agreement, from the date Amber properly
exercises its option to purchase until the date of closing hereunder, Peavey
shall keep and maintain the Terminal in substantially the same condition and
repair, subject to normal wear and tear, as it is on the date Amber gives notice
of exercise of this option.
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request,
with the Securities Exchange Commission pursuant to Rule 406 of the
Securities Act of 1933, as amended.
On the closing date, Peavey shall cause good and marketable title to
the Terminal to be conveyed to Amber by special warranty deed, subject to
easements, covenants and restrictions of records, applicable zoning, building
and use restrictions, rights and limitations applicable to riparian, filled and
submerged lands, matters which would be shown by a good and sufficient
"as-built" land survey, matters suffered or created by Amber and a lease or
through put agreement in favor of Peavey as more particularly stated in this
paragraph. The cost of title insurance, any land survey work, documentary or
transfer tax and recording fees, shall be shared equally by Amber and Peavey. If
a current title insurance commitment and/or land survey on the Terminal reveal
any defects in title, other than the exceptions permitted above, then Peavey
shall have a reasonable time, not to exceed two (2) months after the scheduled
closing date, within which to cure such defects. If Peavey is unable to cure
such title defects within that time, despite reasonable efforts to do so, then
Amber shall either waive the defects and proceed with the closing or rescind its
exercise of this option to purchase and neither party shall have any further
liability to the other with respect thereto. Taxes on any portion of the
Terminal not heretofore leased by Amber which first become delinquent in the
year of closing shall be prorated as of the date of closing using the most
current tax bills available, and there shall be no reproration subsequent to
closing for any taxes payable in arrears, when the statements for such taxes are
eventually issued by the local taxing authorities. Utilities and other charges
and service contracts shall be determined and adjusted as of closing.
After Amber exercises this option to purchase, but prior to closing
hereunder, Peavey shall notify Amber if Peavey desires to have the right to put
grain through and/or store grain at the Terminal following closing. Upon the
giving of such notice, the parties shall promptly commence and diligently
complete good faith negotiations for such through put and/or storage on such
commercially reasonable terms and conditions as the parties may mutually agree
and shall reduce the same to writing so the agreement will be executed and
delivered at closing by Amber and Peavey.
20. NOTICES. Any notice required or permitted to be given hereunder
shall be deemed given when mailed by prepaid registered or certified mail, or
when delivered to a bonded courier service for prepaid delivery, to the party to
whom such notice is directed at the following addresses (or at such other
address as either party may designate by written notice from time to time):
TO AMBER: Xxxxx Xxxxxxx Company
c/o Harvest States Cooperatives
0000 Xxxxx Xxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Legal Department
TO PEAVEY: Peavey Company
c/o ConAgra Grain Companies
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000
21. ASSIGNMENT. Neither party shall sell, assign or transfer this
Agreement or any of the rights or obligations created hereby without the prior
written consent of the other, which consent shall not be unreasonably withheld,
except that such rights or obligations may at any time be assigned by Peavey
without Amber's consent to a purchaser of substantially all of the assets of
Peavey's Grain Merchandising Division or to an affiliated corporation or entity.
Peavey agrees that it will consent to any assignment hereof by Amber which is
solely for the purpose of securing repayment of indebtedness related to Amber's
construction or operations at the Leased Property, provided that said
indebtedness is otherwise consistent with requirements of the Agreement. Amber
shall have the right to assign this Lease to a new entity in which it owns
outright at least a 20% interest (with full voting and other rights relating
thereto), provided that Amber shall nevertheless remain fully and primarily
liable to Peavey for the timely and proper performance of Amber' s obligations
under this lease and, provided further, the new entity does not include any
members, partners or shareholders (other than Harvest States or other
agricultural cooperatives) who are in direct competition with ConAgra, Inc., or
its corporate affiliates in the grain milling business. This Agreement shall be
binding upon and inure to the benefit of approved successors and assigns of the
parties hereto.
22. MEMORANDUM. The parties agree that, upon request of either, a
memorandum of this lease agreement shall be executed and delivered in recordable
form. Said memorandum shall give notice of the possessory interests of the
parties in and to the Terminal property and Leased Property and also of the
mutual rights of refusal granted hereunder.
23. MODIFICATION. No amendment or other change or modification in the
terms of this Agreement shall be effective unless it is made in writing and is
duly executed on behalf of both parties hereto.
24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one agreement.
25. ALARM SYSTEM. Peavey acknowledges that it has given Amber consent
to utilize an alarm system installed at the Huron Terminal with direct
communication to the local fire protection and emergency facilities, provided
that Amber shall install and maintain its own telephone lines connected to said
system. Nothing herein contained or implied from the shared use of the alarm
system shall be construed as an obligation on the part of Peavey to maintain the
alarm system or to incur any costs to connect Amber's telephones to the system.
Amber hereby releases and waives any and all claims it may have arising out of
the shared use of the alarm system, including claims based upon Peavey's failure
to maintain the system in operative condition.
26. OPERATING PROCEDURES. Amber acknowledges that its operations at the
Huron Mill may from time to time require its employees to perform activities or
otherwise be present in the course of their employment on property owned,
controlled or managed by Peavey. In every such instance, Amber agrees that its
employees shall be subject to the safety rules and operating procedures
established by Peavey for its own employees and Peavey is authorized to enforce
such rules and procedures as to Amber employees. If Amber employees regularly
fail to observe such rules and procedures, then Peavey may deny such employees
access to its property and facilities, notwithstanding any other provisions to
the contrary contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
PEAVEY COMPANY, a division of CONAGRA, INC.
By: /s/ X. X. Xxxxxxxxx
X. X. Xxxxxxxxx
Its: President
XXXXX XXXXXXX COMPANY, a division of
HARVEST STATES COOPERATIVES
HARVEST STATES COOPERATIVES
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Its: Group Vice President
STATE OF NEBRASKA)
) ss.
COUNTY OF XXXXXXX)
On this 30th day of August , 1994, before me, a Notary Public, within and for
said County, personally appeared X. X. Xxxxxxxxx, to me known to be the
President of PEAVEY COMPANY, a division of CONAGRA, INC., the corporation named
in the foregoing instrument, and which executed the foregoing instrument, and he
acknowledged said instrument to be the free act and deed of said corporation.
[STAMP: GENERAL NOTARY - STATE OF NEBRASKA
XXXX X. XXXX
MY COMM. EXP. FEB. 22, 1997]
/s/ Xxxx X. Xxxx
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF XXXXXX )
On this 25th day of August, 1994, before me, a Notary Public, within and for
said County, personally appeared Xxxxx X. Xxxxxxxx, to me known to be the Group
Vice President of HARVEST STATES COOPERATIVES, the corporation named in the
foregoing instrument, and which executed the foregoing instrument, and he
acknowledged said instrument to be the free act and deed of said corporation.
[STAMP: XXXXX X. XXXXX
NOTARY PUBLIC - MINNESOTA
DAKOTA COUNTY
MY COMM. EXPIRES MAY 16, 1997]
/s/ Xxxxx X. Xxxxx
Notary Public
Exhibit A
Situated in the City of Huron, County of Erie and State of Ohio: Being a part of
the Original Lot Thirty-one (31), in Section One (1) of Huron Township, and
being designated as Parcel "A" as set forth on Exhibit "A", said exhibit
attached to the deed recorded in Volume 162, Page 148, Erie County Deed Records
and being the deed from the Wheeling and Lake Erie Railway Company to Eastern
States Cooperative Milling Corporation, and more particularly described as
follows: Beginning at a point on the monumented center line of the Huron Branch
of The Wheeling and Lake Erie Railway South ten degrees, forty-two minutes, six
seconds West (S10 degrees 42'06"W) one thousand ninety-three and sixty-four
hundredths (1093.64) feet from an iron rail monument in the center line of said
Huron Branch located at Standard Chainage Station six hundred fifty-seven plus
seventy-six and six tenths (675 + 76.6) thereof, which point is the place of
intersection of the northerly line of that portion of Van Rensselaer Street
sixty-six (66) feet wide as now located and constructed and said monumented
center line of said Huron Branch; thence North eighty-two degrees, thirty-three
minutes, fifty-four seconds West (N82 degrees 33'54"W) three hundred
ninety-eight (398) feet along the northerly line of said Van Rensselaer Street
to an iron pin, the point proper of beginning, from which point another iron pin
bears South fourteen degrees, thirty-six minutes, six second West (S14 degrees
36'06"W) twenty and fifty-one hundredths (20.51) feet; thence by the following
twelve (12) courses:
Course No. 1. North fourteen degrees, thirty-six minutes, six seconds East (N14
degrees 36'06"E) three hundred six and sixty-six hundredths (306.66) feet to an
iron pin:
Course No. 2. North fifty-five degrees, seventeen minutes, fifty-four seconds
West (N55 degrees 17'54"W) two hundred twelve and forty-one hundredths (212.41)
feet to an iron pin;
Course No. 3. North twenty-one degrees, sixteen minutes, twenty-four seconds
West (N21 degrees 16'24"W) ninety (90) feet to an iron pin;
Course No. 4. North sixty-eight degrees, forty-three minutes, thirty-six seconds
East (N68 degrees 43'36"E) one hundred fifty (150) feet to an iron pin;
Course No. 5. North twenty-one degrees, sixteen minutes, twenty-four seconds
West (N21 degrees 16'24"W) forty-five (45) feet to an iron pin;
Course No. 6. South sixty-eight degrees, forty-three minutes, thirty-six seconds
West (S68 degrees 43'36"W) sixty-six (66) feet to an iron pin which is two
hundred (200) feet westerly from the westerly face line, prolonged southerly, of
the concrete dock of The Wheeling and Lake Erie Railway Company on the easterly
side of Slip No. 2, said iron pin being located from point "0" (so-called, cut
in said concrete dock six and two-tenths (6.2) feet northerly from the southerly
end of said dock) by the following two courses: (a) South twenty-one degrees,
fifteen minutes, fifty-four seconds East (S21 degrees 15' 54" E) fifty-three and
fifty-two hundredths (53.52) feet along the Government base line "L"-"O"
prolonged southerly; and (b) South sixty-eight degrees, forty-three minutes,
thirty-six seconds West (S68 degrees 43'36"W) two hundred one and ninety-four
hundredths (201.94) feet;
Course No. 7. North twenty-one degrees, sixteen minutes, twenty-four seconds
West (N21 degrees 16'24"W) parallel with two hundred (200) feet westerly of said
westerly face line of concrete dock eight hundred thirty-two and seven
hundredths (832.07) feet;
Course No. 8. South seventy-two degrees, twenty minutes, six seconds West (S72
degrees 20'06"W) four hundred eighty-seven (487) feet, more or less to the low
water line upon the east bank of the Huron River;
Course No. 9. Southerly along said low water line of the Huron River upon the
east bank thereof approximately eleven hundred twenty (1120) feet to a point in
the northerly line of that portion of Van Rensselaer Street sixty (60) feet wide
as defined in Erie County Road Records, Volume 3, Pages 350 to 369 inclusive;
Course No. 10. South eighty-two degrees, thirty-three minutes, fifty-four
seconds East (S82 degrees 33'54"E) approximately four hundred ninety-seven (497)
feet along the northerly line of said portion of Van Rensselaer Street (60) feet
wide to the northeasterly corner of the parcel described in the above mentioned
road record;
Course No. 11. North twenty-five degrees, fifty-four minutes, fifty-four seconds
West (N25 degrees 54'54"W) three and fifty-eight hundredths (3.58) feet to the
northerly line of that portion of Van Rensselaer Street sixty-six (66) feet wide
hereinabove mentioned;
Course No. 12. South eighty-two degrees, thirty-three minutes, fifty-four
seconds East (S32 degrees 33'54"E) two hundred fifty-three and twelve hundredths
(253.12) feet along said northerly line of that portion of Van Renssalaer Street
sixty-six (66) feet wide to the point proper of beginning:
containing an area of twenty (20) acres, more or less, and Marked Exhibit "A" as
set forth in Deed Volume 162, Page 148, together with: all riparian rights in
the Huron River between the westerly ends of the 8th and 10th courses of the
description of said Parcel "A" incident or appurtenant to said parcel along the
9th course of the description thereof:
SECOND: Does hereby grant, remise, release and forever quit claim unto the said
Grantee, its successors and assigns, forever, the following described property,
rights and easements:
1. The property between low water line of the east bank of the Huron River and
the center thereof and between the 8th and 10th courses of the description of
Parcel "A" extended westerly to the center of said river;
2. The right and easement to use a partially submerged parcel of property
sixty-six (66) feet wide and eight hundred thirty-two and seven hundredths
(832.07) feet long lying immediately contiguous to the 6th and 7th courses of
the description of Parcel "A" above, said parcel being designated on said print
as Parcel "B" and outlined and attached to the deed recorded in Volume 162, Page
148, and the water thereon, solely for the purposes of navigating, loading,
unloading and mooring thereon, all types of watercraft, together with the rights
of ingress and egress for said watercraft to, from and between Parcel "A", and
Parcel "B" and the center of the Huron River over (a) Slip No. 2 (other than
Parcel "B"), said Slip No. 2 being shown on said print, and (b) the property
between Parcel "C" (hereinafter mentioned), Slip No. 2 and the center of the
Huron River, (said property being entirely submerged) at such time and to such
extent as will not unreasonably interfere with the use of (a) and (b) by the
former Grantor, The Wheeling and Lake Erie Railway Company and persons (other
than the Grantee) lawfully using the same; the center of said river between
Course No. 8 of the description of Parcel "A" extended westerly across said
river and the east line of Slip No. 2 extended northerly across said river shall
be understood to be approximately eighty-five (85) feet from the low water line
along the westerly bank of said river;
3. The right and easement to use a partially submerged parcel of property lying
northerly by Parcel "A" and bounded as follows: On the East by the westerly line
of Parcel "B" extended northerly; on the South by said Course No. 8 and the same
extended westerly to the center of the Huron River; on the West by the center of
the Huron River; and on the North by a line fifty (50) feet from and parallel
with said Course No. 8 and as so extended westerly, said parcel being designated
on said print as Parcel "C" as set forth on the print attached to the recorded
deed in Volume 162, Page 148, and the water thereon, solely for the purpose of
navigating, loading, unloading and mooring thereon, all types of watercraft,
together with the rights of ingress and egress for said watercraft to, from and
between Parcel "A", Parcel "C" and the center.
4. The right and easement to use said property between Parcel "C", Slip No. 2
and the center of the Huron River (without prejudice, however to any rights
hereinbefore granted, remised, released, and quitclaimed unto the Grantee, on,
over and across said property) and the water thereon solely for the purpose of
turning all types of watercraft thereon at such times and to such extent as will
not unreasonably interfere with the use thereof by the former Grantor, The
Wheeling and Lake Erie Railway Company and persons (other than the Grantee)
lawfully using the same.
5. The right and easement to dredge and excavate Parcel "B", Parcel "C", Slip
No. 2 (other than Parcel "B") and said property between Parcel "C", Slip No. 2
and the center of the Huron River and to maintain a depth of water thereon
sufficient to accommodate watercraft of the deepest draught now or hereafter
operating on the Great Lakes to whatever extent may be necessary to assure to
the Grantee the full exercise of the rights and easements granted, remised,
released and quitclaimed in subparagraphs 2, 3 and 4 of the Second paragraph of
this deed, without however, any obligation on its part to do so; subject
however, to the limitation that (with the exception of dredging or excavating in
Parcel "B" and Parcel "C") such dredging or excavating shall be done at such
times and to such extent as will not unreasonably interfere in any way with the
use of Slip No. 2 (other than Parcel "B") and said property between Parcel "C",
Slip No. 2 and the center of the Huron River by the former Grantor, The Wheeling
and Lake Erie Railway Company and persons (other than the Grantee) lawfully
using the same. Being the same premises as conveyed by CPC International Inc.,
formerly known as Corn Products Company to The Pillsbury Company by deed dated
March 21, 1972 and received for record March 31, 1972 at 11:19 A.M., and
recorded in Volume 415 of Deeds Page 450.
[attached graphic: Exhibit B Site Plan Drawing, Huron, Ohio Facility]
