LEASE
Exhibit 10.19
This Lease is effective as of June 1, 2006, by and between CHS Inc., a Minnesota cooperative
corporation (“Landlord”) and US Bio Energy Corporation (“Tenant”).
RECITALS
A. Landlord is the owner of that certain commercial office building located at 0000 Xxxxx
Xxxxx, Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000 (the “Building”) and the adjoining property
(“Property”).
B. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, that
portion of the Building, consisting of approximately 10,757.5 rentable square feet (8606 useable
square feet) of office, storage and conference space, located on the 1st floor of the Building,
which is more particularly described in, and outlined on, Exhibit A attached hereto and
made a part hereof (the “Premises”).
AGREEMENT
1. LEASE OF PREMISES. In consideration of the foregoing and the mutual promises,
agreements and obligations contained herein, and subject to the terms and conditions hereinafter
set forth, Landlord does hereby lease, let and demise to Tenant, and Tenant does hereby lease from
Landlord, the Premises. The Premises shall consist of a total of 8606 useable square feet. On
June 1, 2006, Tenant shall lease 5552 useable square feet as outlined as Parcel A on the attached
Exhibit A. Commencing on November 1, 2006 Tenant shall lease an additional 3054 useable
square feet as outlined as Parcel C on the attached Exhibit A. Appurtenant to the Premises shall be a license for Tenant to have access over,
on and through the Building and the Property for use of the parking lots, driveway, sidewalks and other Common Areas (as defined in Section 18 below).
2. USE. Tenant will use and occupy the Premises as a business office and for no other
purpose whatsoever. Tenant agrees not to occupy or use the Premises, or permit any portion of the
Premises to be occupied or used, for any business or purpose which is unlawful, disruptive or
hazardous due to fire or other risks or to permit anything to be done which would in any way
increase the rate of fire insurance coverage or jeopardize the extent of coverage on the Property,
the improvements located thereon, or its contents. Tenant shall not store or permit the storage of
hazardous or flammable materials or chemicals in the Premises or any other portion of the Property,
unless such storage shall have been previously approved by Landlord and in all events, such storage
shall be in compliance with the requirements of federal, state and local laws, ordinances or
regulations and the requirements of Landlord’s and Tenant’s insurance carriers. Under no
circumstances shall Tenant dispose of hazardous or flammable materials or chemicals in the Premises
or on the Property.
3. TERM.
(a) Initial Term. The initial term of this Lease will commence on June 1, 2006 and will
continue for a period of five (5) years until May 31, 2011 (the “Initial Term”), unless sooner
terminated as provided herein.
(b) Renewal Term. Subject to Landlord’s right to terminate at the expiration of the Initial
Term described in Section 3(c), Tenant shall have the right, but not the obligation, to renew this
Lease of the Premises for one (1) additional renewal term of five (5) years commencing on June 1, 2011, and
continuing until May 31, 2016 (the “Renewal Term”), upon the same terms and conditions as are set
forth herein; provided, however, that in order to renew this Lease for the Renewal Term, Tenant
must give
Landlord
written notice of Tenant’s election to do so 90 days prior
to expiration of the Initial Term. The Initial Term and Renewal Term
are sometimes collectively referred to herein as the “Term.”
(c) Landlord’s Right to Terminate at Expiration of the Initial Term. Notwithstanding anything
to the contrary contained herein, including but not limited to Section 3(b), Landlord shall have
the absolute right to terminate this Lease at the expiration of the Initial Term if: (i) Landlord
determines that it wants the Premises for its own use or for the use by any subsidiary or affiliate
of Landlord or a joint venture involving Landlord; and (ii) Landlord gives Tenant at least 120
days’ notice of such termination.
(d) Early Termination Option. Tenant may terminate this Lease upon 90 days’ written notice prior to
the end of the third or fourth 12-month period of the Initial Term under the Lease; provided
however, if the Lease is terminated at the end of: (i) the third 12-month period during the
Initial Term, Tenant shall pay to Landlord an amount equal to 40% of the Improvement Allowance (as
defined in Paragraph 39), which equates to $36,145.20; or (ii) the fourth 12-month period of the
Initial Term, Tenant shall pay to Landlord an amount equal to 20% of the Improvement Allowance,
which equates to $18,072.60.
4. RENT.
(a) Initial Term; Rent. Tenant agrees to pay to Landlord in United States currency the
following sums as Base Rent during the Initial Term of this Lease:
(i) Twelve Thousand Four Hundred thirty-four and 17/100 ($12,434.17) as Base Rent each month
from June 1, 2006 through October 31, 2006 of the Initial Term;
(ii) Nineteen Thousand Two Hundred seventy-three and 85/100 ($19,273.85) as Base Rent each
month from November 1, 2006 through May 31, 2007 of the Initial Term;
(iii) Nineteen Thousand Seven Hundred fifty-five and 70/100 ($19,755.70) as Base Rent each
month during the second twelve (12) months of the Initial Term;
(iv) Twenty Thousand Two Hundred forty-nine and 59/100 ($20,249.59) as Base Rent each month
during the third twelve (12) months of the Initial Term;
(v) Twenty Thousand Seven Hundred fifty-five and 83/100 ($20,755.83) as Base Rent each month
during the fourth twelve (12) months of the Initial Term; and
(vi) Twenty-one Thousand Two Hundred Seventy-four and 73/100 ($21,274.73) as Base Rent each
month during the fifth twelve (12) months of the Initial Term.
(b) Renewal Term; Rent. The annual increases in Rent for any 12-month period under the 5-year Renewal Term under this Lease will be 2.5% of the annual Rent charged during the immediately preceding twelve (12) month period.
(c) Late Fee. Tenant agrees to pay interest to Landlord on any Base Rent or additional rent
payable under this Lease which is not timely paid at a rate equal to
the lower of (a) fifteen per
cent (15%) per annum, or (b) the maximum rate of interest permitted by law, from and after the date
any such amount is due until paid.
5. UTILITIES AND MAINTENANCE. Landlord will provide heat, water, sewer services,
electricity, janitorial and routine maintenance services to the Premises, the Building and the
Property. Heating and air conditioning will be provided during normal business hours from 6:30
a.m. to 5:30 p.m., Monday through Friday, and from 8:00 a.m. to 12:00 noon on Saturdays. If
maintenance or repair of the Premises, the Building or the Property is required as a result of the
acts or omissions of Tenant, its employees, agents, or invitees, Landlord will perform such
maintenance and repair and charge the cost thereof, including a gross hourly charge for maintenance
employees of Landlord required to perform the work, as additional rent, to Tenant, and such
additional rent will be paid by Tenant within thirty (30) days of its receipt of a statement of
such charges. Notwithstanding the foregoing, Landlord shall be responsible for performing all
regular maintenance and repair of the Premises required as a result of ordinary wear and tear at no
expense to Tenant. Tenant will pay all telephone and telecommunications charges, including any and
all charges relating to computer equipment, except electricity charges, allocable to its business
activities in the Building. Except as otherwise provided herein, all other maintenance and repair
of the Premises, Building or Property will be performed by Landlord at Landlord’s expense. In the
event there is an interruption in utility services to the Premises which materially and adversely
affects the conduct of Tenant’s business therein, Tenant’s sole remedy will be an abatement of rent
during the period of such interruption, it being expressly understood and agreed by the parties
that Landlord will in no event be liable for any direct, indirect, consequential, special, punitive
or any other damages, or any lost profits of any kind whatsoever, suffered by Tenant as a result
of, or arising out of, any such interruption in service, unless such interruption is caused by
Landlord’s gross negligence, or reckless or intentional acts or omissions.
6. PARKING. Landlord will provide parking in the general parking lot of the Building at no
additional charge. The aforesaid parking access may be exercised by Tenant in common with Landlord
and other tenants of the building and their guests on such terms and conditions as may be
established by Landlord from time to time, and shall not be deemed to confer on Tenant, its
employees or guests, any rights to reserved or preferential parking in the foregoing areas.
7. ADDITIONAL SERVICES AND BUILDING FACILITIES.
(a) Services
Provided. The following services will be provided during the Term
of the Lease, and such costs are included in the Rent:
(i) Heating
and air conditioning will be provided during normal business hours
from 6:30 AM to 5:30 PM Monday through Friday, and from 8:00 AM to
12:00 PM on Saturday.
(ii) Parking
provided in general parking lot.
(iii) Routine
maintenance services.
(iv) Routine
building security services and main entrance controls.
(v) Snow
and ice removal from sidewalks, parking lot and driveways.
(vi) Lawn
care and landscaping services.
(vii) The
Building will be open for business on weekdays, excluding
CHS-designated holidays, from 6:30 AM to 5:30 PM. Employees of Tenant shall have
access to the Building at other times by means of a controlled access
security card, which will be distributed on request from a
pre-identified Tenant representative.
(viii) Routine
security services from an outside vendor from 4:00 PM to 8:30 AM
Monday through Friday and 24 hours on Saturday, Sunday and
CHS-designated holidays. Special rules apply to after hour or weekend
activities for security purposes and are available upon request.
(ix) Receptionist
services are in place at front desk Monday through Friday 8:00 AM to
4:30 PM, except CHS-designated holidays.
(x) Use
of Common Areas, including parking lot, landscaped areas, corporate
conference rooms, cafeteria dinning area and other such areas
provided for common use.
(b) Other
Available Services. Subject to Landlord offering such services,
Tenant may utilize any of the following services at the Building.
These services are billed on a per
usage basis, and the fees are subject to change Fees can be provided
to Tenant upon request.
(i) Special
project services
(ii) Office
move coordination
(iii) Design
services
(iv) Furniture
purchasing and furniture inventory control
(v) Off
site storage
(vi) Special
security services
(vii) Storage
at Building 5300
(viii) Mail
Station identification
(ix) Mail
sorting, delivery and pick-up
(x) Mail
courier
(xi) Postage/Labor
jobs (i.e. folding and stuffing)
(xii) Loading
dock
(xiii) Copy
center
(xiv) Paper
record storage
(xv) Local/long
distance telephone services
(xvi) Heating
and cooling during non-business hours
(xvii) Package
shipping and receiving
8. REAL ESTATE TAXES. Tenant will have no responsibility for the payment of real estate
taxes or assessments due in connection with the Property.
9. ENCUMBRANCES. Tenant will not encumber the Premises or this Lease in any way, including
but not limited to mortgaging or creating any other security interest in, or allowing the filing of
a mechanics’ lien against the Premises or any part thereof, or transferring, assigning or
otherwise granting any interest in the Lease, without the prior written consent of Landlord. Notwithstanding, Tenant, in its sole discretion, may encumber or grant a security interest
in Tenant’s personal property used at or fixtures installed in the Premises.
10. POSSESSION OF PREMISES. Except as otherwise expressly provided in this Section 10,
Tenant agrees to lease the Premises “AS IS”, and Landlord makes no warranties of any sort regarding
the Premises, including but not limited to any warranties as to their condition or suitability for
Tenant’s current or intended uses. Except as provided in Section 39,
Landlord will not make any improvements to the Premises in
connection with the execution or performance of this Lease, or otherwise, unless (a) it is
separately agreed
to in writing by the parties; and (b) it is at Tenant’s sole cost and expense.
11. HOLD HARMLESS. Landlord shall not be responsible for loss or damage to property or
injury to persons occurring in or about the Premises by reason of any condition, defect, matter or
thing on said Premises, the remainder of the Building, or the Property, or any of the improvements
of which the Premises are a part, or for the acts, omissions or negligence of persons in and about
the said Property, other than those resulting from the negligence or willful misconduct of
Landlord, its agents or employees. Subject to the waiver of subrogation provisions of Paragraph
24, Tenant agrees to indemnify, defend, and save Landlord harmless from all liabilities, losses,
damages, expenses, costs of action, suits, interest, fines, penalties, claims and judgments (to the
extent that the same are not paid out of the proceeds of any policy of insurance) related to losses
or claims of injuries to persons occurring in or about the Premises, resulting from any act,
omission, or neglect of Tenant, its agents, servants, employees, customers or invitees, including
acts or omissions arising out of Tenant’s failure to perform, fully and promptly, each and every
covenant, condition and agreement of this Lease. Tenant, at its own cost and expense, will defend
any and all suits that may be brought and claims that may be made for which Tenant has agreed to
indemnify Landlord. Subject to the waiver of subrogation provisions of Xxxxxxxxx 00, Xxxxxxxx
agrees to indemnify, defend, and save Tenant harmless from all liabilities, losses, damages,
expenses, costs of action, suits, interest, fines, penalties, claims and judgments (to the extent
that the same are not paid out of the proceeds of any policy of insurance) related to losses or
claims of injuries to persons occurring in or about the Premises, resulting from any act, omission,
or neglect of Landlord, its agents, servants, employees, customers or invitees, including acts or
omissions arising out of Landlord’s failure to perform, fully and promptly, each and every
covenant, condition and agreement of this Lease. Landlord, at its own cost and expense, will defend
any and all suits that may be brought and claims that may be made for which Landlord has agreed to
indemnify Tenant.
12. ACCESS TO PREMISES. The Building shall be open for business on weekdays, excluding
holidays, from 6:30 a.m. to 5:30 p.m. Employees of Tenant and clients, if accompanied by an
employee of Tenant, shall have access to the Premises at other times by means of a controlled
access security card, which shall be distributed to Tenant by Landlord upon request.
13. COMPLIANCE WITH LAWS AND REGULATIONS. Tenant agrees to comply in all material respects
with all laws, ordinances, and governmental orders, rules and regulations (state, federal, municipal,
or promulgated by other agencies or bodies having any jurisdiction thereof), and all Building
rules, regulations and policies adopted by Landlord from time to time, relating to the use,
condition or occupancy of the Premises. Should Tenant receive notice of any violation or inquiry as to a possible
violation of federal, state or local laws, ordinances or regulations related to its use, condition or occupancy, Tenant shall
provide immediate notice to Landlord and such further information as Landlord shall request.
14. ENTRY FOR REPAIRS; INSPECTION.
The Landlord or its employees or agents shall have the right without any diminution of Rent or other charges
payable hereunder by Tenant to enter the Premises at reasonable times for the purposes of exhibiting the Premises to
prospective tenants of the Premises or purchasers of the Building and for inspection, cleaning, repairing, altering or improving the Premises or the Building or Property,
but nothing contained in this paragraph shall be construed as imposing any obligation on the Landlord to make
any repairs, alterations, or improvements not otherwise specifically provided for in this Lease. In exercising the foregoing right
of entry, Landlord will provide no less than 24 hours prior notice to Tenant for the purposes of exhibiting the Premises
to prospective tenants of the Premises or purchasers of the Building, and in all other cases, reasonable notice to Tenant, and will exercise
reasonable care in an effort to minimize the disruption to Tenant’s business operations.
15. ALTERATIONS. Tenant will not make any alterations, repairs, additions or improvements
in or to the Premises or add, subtract, or in any way change any locks, plumbing, wiring or other
services therein without the prior written consent of Landlord as to the alterations, additions or
improvements to be made to the Premises. Such consent will not be unreasonably withheld or delayed
by Landlord.
16. MECHANIC’S LIENS. In the event that any mechanic’s lien is filed against the Premises,
the Building or the Property as a result of Tenant’s alterations, additions, improvements or other
actions or omissions, Tenant shall immediately notify Landlord. Landlord shall have the right, but
not the obligation, after forty five (45) days from the filing of the lien, if the lien is not then
discharged, and in addition to all other remedies granted hereunder or by applicable law, to pay
the lien, without inquiring into the validity thereof, and Tenant will immediately reimburse
Landlord for the total amount of that payment, together with reasonable attorneys’ fees and other
costs incurred by Landlord in discharging the lien, as additional rent hereunder. In the event that
Tenant wishes to contest any such lien, it will post security in the form of a bond or other
collateral deemed sufficient by Landlord, in its sole discretion, within the 45 day period provided
above. If any such lien is not discharged within one (1) year after posting security, or sooner if
necessary to allow a sale or mortgaging of the Property or due to any other necessity, Landlord
will have the right to use such amounts posted as security to pay and discharge the lien. Nothing
contained herein will be deemed a waiver of the right of Landlord to declare an Event of Default
under Paragraph 27, if Tenant has failed to discharge any such lien within 45 days of filing.
17. SIGNS. Tenant agrees that no sign, advertisement or notice will be placed or painted on
any part of the outside or inside of the Building or the Property or outside the Premises except in
such manner, style and places as designated by Landlord. Landlord reserves the right to remove any
signs placed or painted in violation of this section at the expense of Tenant.
18. COMMON AREAS. Common areas will consist of all parts of the Building and Property and
improvements thereon not under Lease exclusively to Tenant or other tenants or available for Lease
to other tenants, or used exclusively by Landlord, including, but not limited to, parking areas,
access roads and facilities, driveways, sidewalks and other walkways, stairways, hallways,
elevators, restrooms, loading and/or delivery areas, landscaped areas, conference areas, cafeteria,
and such other areas and improvements provided for common use and benefit of tenants. Landlord and
Tenant, and invitees, employees, and visitors, shall have common and non-exclusive rights to the
use of said common areas, subject, however, to Landlord’s exclusive right to establish, modify and
enforce reasonable rules and regulations with respect to all common areas and facilities for the
safety, comfort and convenience of the owners, occupants, tenants and invitees of the Building and
the Property and the right of Landlord to establish reasonable procedures and schedules for use of
common facilities, such as loading docks, to
allow use by all tenants.
19. QUIET ENJOYMENT. Landlord hereby warrants that, subject to the terms and conditions
hereof, Tenant will peacefully have, hold and enjoy the Premises during the full term of this Lease
and any extensions or renewals thereof.
20. ASSIGNMENT AND SUBLETTING. Tenant may sublease or assign all or any portion of the
Premises to any affiliate or subsidiary of Tenant, and/or any entity resulting from a merger or
consolidation involving Tenant, with Landlord’s prior written consent which shall not be
unreasonably withheld or delayed. Tenant agrees not to assign this Lease or sublet or license the
Premises or any part thereof, whether by voluntary act, operation of law, or otherwise, without the
specific prior written consent of Landlord in each instance, which consent shall not be
unreasonably withheld or delayed. No assignment of this Lease by Tenant, nor any sublease of the
Premises, whether or not consented to by Landlord, will release Tenant of any obligations under
this Lease. Landlord’s interest hereunder will be freely assignable, but Landlord will provide
Tenant with notice of any such assignment.
21. RISK OF LOSS. Tenant assumes the risk of loss or damage to any personal property used
or stored by it in or at the Premises caused by fire, water, theft, war, vermin, flood, or any
other casualty or peril normally included in multi-peril all-risk insurance and agrees not to look
to Landlord for indemnification for the same and hereby releases Landlord from any liability for
any such loss or damage, except to the extent such loss was caused or contributed to by the
negligence, recklessness or intentional act or omission of Landlord.
22. LOSS BY CASUALTY. If the Premises are damaged or destroyed by fire or other casualty,
Landlord or Tenant will have the right to terminate this Lease, provided written notice thereof is
given to the other within sixty (60) days after such damage or destruction and the Rent shall be
abated for the unexpired portion of the term of the Lease from the date of such damage or
destruction. If all or a portion of the Premises is damaged by fire or other casualty, and neither
party elects to terminate this Lease, Landlord shall, at its expense, proceed with reasonable
diligence to restore the Premises to as near the condition which existed immediately prior to such
damage or destruction as reasonably possible and the Rent shall xxxxx during such period of time as
the Premises are untenantable. Should only a portion of the Premises be untenantable, Tenant will
be entitled to a partial abatement of Rent in an amount determined based upon the proportion that
the untenantable portion of the Premises bears to the entire Premises. Landlord will have no
obligation to repair or replace fixtures or personal property owned by Tenant.
23. PROPERTY INSURANCE. Landlord will at all times during the term of this Lease maintain
a policy or policies of insurance insuring the Building against loss or damage by fire, explosion
or other hazards and contingencies and flood if required, or any other casualty or peril normally
included in multi-peril, all-risk insurance for an amount deemed reasonably necessary by Landlord
based upon typical coverages for comparable properties, which insurance will be subject to the
rights of the mortgagee of the Property, if any, under a standard mortgagee’s clause. Landlord
will not be obligated in any way or manner to insure the personal property of Tenant or other
property which Tenant may have upon or within the Premises, any fixtures installed by or paid for
by Tenant upon or within the Premises, or any additional improvements which Tenant may construct on
the Premises. Landlord assumes the risk of loss or damage to the Building and Property (but not to
the personal property other property of Tenant, or fixtures or improvements made or paid for by
Tenant, as hereinabove provided) caused by fire, water, theft, war, vermin, flood, or any other
casualty or peril normally included in multi-peril, all-risk insurance and agrees not to look to
Tenant for indemnification for the same and hereby releases Tenant from any liability for any such
loss or damages, except to the extent such loss or damages were caused or contributed to by the
negligence, recklessness or intentional act or omission of Tenant.
24. PUBLIC LIABILITY INSURANCE. Tenant will, during the Term hereof, keep in full force and
effect, at its expense, a policy or policies of commercial general liability insurance with respect
to the Premises and the business of Tenant, under policies and with insurance carriers reasonably
acceptable to Landlord, in which Tenant will be named insured and Landlord will be covered as an
additional insured under such reasonable policy limits as are required by Landlord, which limits
will in no event be less than $1,000,000 combined single limit. Such policy or policies provided
under this paragraph will provide that thirty (30) days’ written notice must be given to Landlord
prior to cancellation thereof. Tenant will furnish evidence satisfactory to Landlord prior to the
commencement date of this Lease, and at such other times as Landlord requests, but at least
annually on the anniversary of the commencement date of the term of this Lease, that all required
coverage is in full force and effect.
25. WAIVER OF SUBROGATION. Anything in this sublease to the contrary notwithstanding,
Landlord and Tenant hereby waive and release each other from any and all rights of recovery, claim,
action or cause of action, against each other, their agents, officers and employees for any loss or
damage that may occur to the Premises, improvements to the Property of which the Premises are a
part, or personal property (building contents) located on the Property, by reason of fire, the
elements, or any other casualties covered by extended coverage property insurance, regardless of
cause of origin, including negligence of Landlord or Tenant and their agents, officers and
employees to the extent of any insurance company which has issued policies of fire and extended
coverage insurance to Tenant, written notice of the terms of the mutual waiver as contained in this
paragraph, and to have the insurance policies properly endorsed, in order to verify the acceptance
by the insurance companies of the waivers of subrogation contained.
26. CONDEMNATION. If, during the term of this Lease, all or a substantial part of the
Premises are taken or condemned for any public purpose, or a deed is given by Landlord in lieu
thereof, and the taking would prevent or materially interfere with the use of the Premises for the
purpose for which they are being used, this Lease will terminate and the Rent will be abated during
the unexpired portion of this Lease effective on the date physical possession is taken by the
condemning authority. Tenant will have no claim to any condemnation award of Landlord, nor will it
have the right to claim separately for any value it may have attributed to its leasehold interest
in the Premises, except that Tenant may apply for any award to which it may be entitled for moving
expenses and trade fixtures only.
27. EVENTS OF DEFAULT. The occurrence of any of the following events shall be deemed an
event of default hereunder (“Events of Default”);
(a) Tenant shall fail to pay when due any monthly installment of Rent or additional rent as
herein provided, whether or not legal or formal demand has been made therefor, and such default
continues for ten (10) days after written notice from Landlord to Tenant.
(b) Tenant shall permit the filing of a lien against the Premises or the Property which is not
discharged or contested within forty five (45) days of filing pursuant to Section 16.
(c) Tenant shall fail to maintain insurance required pursuant to Section 24.
(d) Tenant shall abandon or vacate the Premises.
(e) Tenant shall become insolvent or commit an act of bankruptcy or become bankrupt or take
the benefit of any statute that may be in force for bankrupt or insolvent debtors or become
involved in voluntary or involuntary winding up proceedings or a receiver shall be appointed for
the business,
property, affairs or revenues of Tenant.
(f) Tenant shall violate the terms of this Lease pertaining to the use of the Premises.
(g) Tenant shall violate or fail to
perform any of the other material conditions, covenants or agreements contained herein and such default is not cured within
thirty (30) days of receipt of notice thereof from Landlord, provided, however if such default cannot be reasonably cured within
such thirty (30) day period, then Tenant shall not be in default if
Tenant shall have commenced to cure the default within such thirty
(30) day period and diligently proceeds to cure the default within forty-five (45) days from receipt of notice.
28. DEFAULT REMEDIES. If an Event of Default occurs pursuant to Paragraph 27,
time being of the essence, Landlord may resort to any and all legal remedies or combination of
remedies which Landlord may desire to assert, including but not limited to one or more of the
following: (a) enter the Premises and remove all persons and property therefrom, with or without
terminating this Lease, (b) declare the Lease at an end and terminated, (c) xxx for the Rent due
and to become due under the Lease, less any Rent received by Landlord from reletting of the
Premises, and for any damages sustained by Landlord, and (d) continue the Lease in effect and relet
the Premises on such terms and conditions as Landlord may deem advisable with Tenant remaining
liable for the monthly Rent plus the reasonable cost of obtaining possession of the Premises and of
any repairs necessary to prepare the Premises for reletting, less the rentals received from such
reletting, if any. No action of Landlord will be construed as an election to terminate the Lease
unless written notice of such intention is given to Tenant. Tenant agrees to pay as additional rent
all reasonable attorneys’ fees and other costs and expenses incurred by Landlord in enforcing any
of Tenant’s obligations under this Lease.
29. LANDLORD’S RIGHT TO CURE DEFAULTS. If Tenant should default in the making of any
payment or in the performance of any act herein required to be made or done by Tenant, Landlord
may, at its option, make such payment or perform such act. Should Landlord so act, all expenses
thereof, with interest thereon as determined herein, will be reimbursed by Tenant to Landlord and
will constitute additional rent due and payable with the next monthly installment of Rent. Landlord
shall not be entitled to declare a default based upon Tenant’s failure to pay or failure to act, if
Landlord has paid or performed such act on behalf of Tenant during any cure period granted to
Tenant hereunder. However, Tenant’s failure to timely reimburse Landlord for such payment or act
shall constitute an Event of Default under this Lease.
30. SURRENDER. On the last day of the Term of this Lease, or the
earlier termination hereof
Tenant will peaceably surrender the Premises in good condition and repair
consistent with Tenant’s duty
to make repairs as provided for in this Lease, ordinary wear and tear and casualty
loss excepted. On or
before said last day, Tenant will, at its expense, remove all of Tenant’s personal
property, equipment and
fixtures it is entitled to remove from the Premises, repairing any damage caused
thereby, and any property
not removed will be deemed abandoned. If the Premises are not surrendered at the
end of the Term of this
Lease or the earlier termination thereof, Tenant will indemnify Landlord against
loss or liability resulting
from delay by Tenant in so surrendering the Premises, including, without
limitation, claims made by any
succeeding tenant founded on such delay or losses incurred by Landlord due to such
claims or the loss of
a prospective Tenant. Tenant will promptly surrender all keys for the Premises to
Landlord at the place
then fixed for payment of Rent and will inform Landlord of combinations on any
locks and safes on the Premises.
31. WAIVER. Failure of Landlord to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, will not waive such default, but
Landlord shall have the right to declare any such default at any time thereafter.
32. HOLDING OVER. If, without Landlord’s written consent, Tenant remains in possession of
the Premises after the expiration or other termination of the Lease, Tenant shall be deemed to be
occupying
the Premises upon a tenancy at sufferance only, at a monthly rental equal to one hundred fifty per
cent (150%) the monthly Rent otherwise payable hereunder on the last day of the term of this Lease
immediately prior to the expiration or termination of such term. Such tenancy at sufferance may be
terminated by Landlord at any time in accordance with Minnesota law, or in the absence of any such
Minnesota law governing such circumstance, then by notice to Tenant thirty (30) days in advance of
such termination. Any month-to-month tenancy or tenancy at sufferance hereunder will be subject to
all other terms and conditions of the Lease and nothing contained in this Section 32 will be
construed to limit or impair any of Landlord’s rights of reentry or eviction or constitute a waiver
thereof.
33. SUBORDINATION TO LEASE AND MORTGAGE. Tenant agrees that this Lease will be
subordinate to any mortgage that may now or hereafter be placed upon the Building, the Property or
any part thereof, and to any and all advances to be made thereunder, and to the interest thereon,
and all renewals, replacements, and extensions thereof, provide however such mortgagee agrees to
not disturb Tenant’s possession of the Premises so long as Tenant is not in default hereunder. In
confirmation of such subordination, Tenant will promptly execute and deliver any instrument, in
recordable form, as is reasonably required or requested by Landlord’s mortgagee, including but not
limited to a subordination, non-disturbance and attornment agreement in which Tenant agrees to
attorn to such mortgagee in the event of foreclosure provided Tenant’s rights under the Lease are not disturbed.
34. ESTOPPEL CERTIFICATES. The parties agree to promptly execute upon request of the
other party an estoppel certificate addressed to any mortgagee, purchaser, assignee or other
third party certifying as to facts related to this Lease in a form reasonably acceptable to
the requesting party and Tenant will agree to any such notice provisions as may be reasonably
required by Landlord or Landlord’s mortgagee.
35. ENTIRE AGREEMENT. The Lease embodies the entire agreement between the parties as to
subject hereof. There are no promises, terms, conditions or obligations referring to the subject
matter, other than those contained herein. There may be no modifications to this Lease, except in
writing, executed with the same formalities as this Lease.
36. CAPTIONS. The captions are inserted only as a matter of convenience and for reference
and in no way define, limit to describe the scope of this sublease nor the intent of any provision
thereof.
37. SUCCESSORS AND ASSIGNS. The covenants and conditions herein contained will, subject to
the provisions of Section 20 hereof, apply to and bind the successors, executors, administrators
and assigns of all the parties hereto.
38. NOTICES. Whenever in this Lease it shall be required or permitted that notice or demand
be given or served by either party to this Lease to or on the other, such notice or demand will be
given or served and shall not be deemed to have been given or served unless in writing and
forwarded by certified or registered mail, return receipt requested, addressed as follows:
To Landlord: | CHS Inc. | |||||
Attn: Xxxxx Xxxxxxx | ||||||
X.X. Xxx 00000 | ||||||
Xxxxx Xxxx, XX 00000-0000 | ||||||
Copy to: | CHS Inc. | |||||
Attn: Legal Department | ||||||
X.X. Xxx 00000 | ||||||
Xxxxx Xxxx, XX 00000-0000 |
To Tenant: | US BioEnergy Corporation Attn. Xxxx Xxxxxxx 0000 Xxxxx Xxxxx, Mailstop 000 Xxxxx Xxxxx Xxxxxxx, XX 00000 Facsimile: 000-000-0000 |
Such notices may be changed from time to time by either party by serving notices as above provided.
39. TENANT IMPROVEMENTS.
(a) Landlord and Tenant shall meet with Landlord’s designers and agree upon a set of plans and
specifications and/or construction drawings (collectively the “Plans and Specifications”), covering
all work to be performed by Landlord in constructing Tenant improvements within the Premises (the
“Tenant Improvements”). Tenant shall have five (5) days after receipt of the Plans and
Specifications in which to review and to give to Landlord written notice of its approval of the
Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall
have no right to request any changes to the Plans and Specifications which would either materially
alter the Premises or make any exterior or structural changes to the Premises or the Building. If
Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after
its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and
the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications,
Landlord shall make those changes which are reasonably requested by Tenant. Tenant may not
thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has
unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the
Plans and Specifications, as modified by said revisions, shall be deemed to be final upon the
submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and
Specifications, and of any revisions thereto, act reasonably and in good faith. After the Plans
and Specifications have been made or deemed final pursuant to the procedures set forth hereinabove,
any subsequent changes to the Plans and Specifications requested by Tenant shall be at Tenant’s
sole cost and expense and subject to Landlord’s written approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
(b) Landlord shall pay costs associated with the construction of the Tenant Improvements in an
amount equal to $10.50 per useable square foot of space in the Premises, for a maximum total amount
of $90,363 (the “Improvement Allowance”). If the cost of constructing the Tenant Improvements
exceeds the Tenant Allowance, the sums spent by Landlord in excess of the Improvement Allowance
shall be considered additional rent, to be paid by Tenant to Landlord immediately upon receipt of
Landlord’s invoice therefore. The Improvement Allowance must be spent within the first 12 months
of the Lease or whatever is outstanding shall be forfeited.
(c)
Landlord shall use reasonable speed and diligence to substantially complete construction
of the Tenant Improvements in a good and workmanlike
manner and to have the Premises ready for occupancy on or before June 1, 2006 as to
Parcel A and on or before November 1, 2006 as to Parcel C. No liability whatsoever
shall arise or accrue against Landlord by reason of its failure to deliver or
afford possession of the Premises unless it is a direct result of
Landlord’s negligence or willful misconduct. Such failure to deliver
possession of the Premises to Tenant by the dates herein stated shall
automatically postpone the date of commencement of the Initial Term of
this Lease and payment of Rent and shall extend the termination date by
the corresponding number of days.
(d) The costs of constructing the Tenant Improvements shall include, but are not limited to,
the actual costs of construction (including the overhead and profit of Landlord’s contractors),
construction management expenses, the cost of all permits and approvals, and all design costs and
other charges of Landlord’s designers, architects and engineers in the review and preparation of
the Plans and Specifications.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed these presents in proper legal
manner.
CHS INC. | US BIO ENERGY CORPORATION | |||||||||
By:
|
/s/ XXXXXXX XXXXXXXX
|
By: | /s/ XXXXX XXXXX
|
|||||||
Its:
|
Executive Vice President | Its: | President |
Attachment
A
[Floor Map of Leased Premises]