LEASE AGREEMENT
EXHIBIT 10.1
This Lease Agreement
(the “Lease”) is dated as of July 10, 2007, 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 underlying real property (the
“Property”).
B. Tenant currently leases space in the Building from Landlord pursuant to the Amended and
Restated Lease dated November 1, 2006 by and between Landlord and Tenant (the “Restated Lease”).
C. Landlord and Tenant mutually desire to terminate the Restated Lease and replace it with
this Lease.
D. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord that
portion of the Building, consisting of approximately 37,987 rentable square feet (30,390 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. TERMINATION OF RESTATED LEASE; LEASE OF PREMISES. Landlord and Tenant hereby agree to
mutually terminate the Restated Lease as of midnight on the day prior to the Lease Commencement
Date, and thereafter the terms of this Lease shall replace, in its entirety, the terms of the
Restated Lease. 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. 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, driveways, 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 September 1, 2007 (“Lease
Commencement Date”) and will continue for a period of five (5) years until August 31, 2012 (the
“Initial Term”), unless sooner terminated as provided herein.
(b) Early Termination Option. Tenant may terminate this Lease at the end of the fourth
12-month period of the Initial Term upon at least 180 days prior written notice; provided however,
Tenant shall pay to Landlord $125,661.50 on the early termination date.
4. RENT.
(a) Initial Term; Rent. Tenant agrees to pay to Landlord in advance on or before the first
day of each month in United States currency the following sums as “Rent” during the Initial Term of
this Lease:
(i) Seventy-One Thousand Two Hundred Twenty-five and 63/100 ($71,225.63) as Rent each month
during the first 12-month period of the Initial Term;
(ii) Seventy-two Thousand Nine Hundred Ninety-eight and 35/100 ($72,998.35) as Rent each month
during the second 12-month period of the Initial Term;
(iii) Seventy-four Thousand Eight Hundred Thirty-four and 39/100 ($74,834.39) as Rent each
month during the third 12-month period of the Initial Term;
(iv) Seventy-six Thousand Seven Hundred Two and 08/100 ($76,702.08) as Rent each month during
the fourth 12-month period of the Initial Term; and
(v) Seventy-eight Thousand Six Hundred Thirty-three and 09/100 ($78,633.09) as Rent for each
month of the fifth 12-month period of the Initial Term.
(b) Late Fee. Tenant agrees to pay interest to Landlord on any 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 of the unpaid Rent or additional rent, 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, at its expense, heat, air
conditioning, 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. Landlord shall
maintain the Building and Property in good condition and repair as an office building. Except as
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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, so long as Landlord works diligently to get such service restored, 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 negligence, or reckless or intentional acts or
omissions.
6. PARKING. Landlord will provide Tenant and its employees and guests with parking in the
general parking lot of the Building at no additional charge. The aforesaid parking lot may be used
by Tenant in common with Landlord and other tenants of the Building and their guests subject to
such reasonable rules 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.
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(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 or omission
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
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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, the Building or the Property,
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
CHS-designated 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 actually 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.
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17. SIGNS. Tenant agrees that no sign, advertisement or notice will be placed or painted on
any part of the outside of the Building or the Property. Landlord agrees that Tenant shall be
permitted to have signage outside the Premises on the 1st floor and inside the
Premises. 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, landscaped areas, conference areas, cafeteria, and such other areas and
improvements provided for common use and benefit of tenants (the “Common Areas”). Landlord and
Tenant, and their 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 or Building are damaged or destroyed by fire or
other casualty rendering the Premises wholly untenantable, 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 a portion of the Premises is
damaged and Tenant reasonably determines that it will take more than sixty (60) days to restore the
Premises, Tenant may terminate the Lease upon giving Landlord written notice within thirty (30)
days after the occurrence of such damage. 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 and Tenant continues to occupy and conduct business in the
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Premises in part, 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 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 gross
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 reasonably satisfactory to Landlord
prior to the commencement date of this Lease, and at such other times as Landlord reasonably
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 Lease 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 Landlord or 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.
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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. Landlord shall use commercially reasonable efforts to mitigate
damages in the Event of Default under Section 27(d).
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.
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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.
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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, or sent by overnight express
courier, or sent by facsimile and followed by overnight express delivery, addressed as follows:
To Landlord:
|
CHS Inc. | |
| Attn: Xxxxx Xxxxxxx | ||
| 0000 Xxxxx Xxxxx | ||
| Xxxxx Xxxxx Xxxxxxx, XX 00000 | ||
| Facsimile: 000-000-0000 | ||
Copy to:
|
CHS Inc. | |
| Attn: Legal Department | ||
| 0000 Xxxxx Xxxxx | ||
| Xxxxx Xxxxx Xxxxxxx, XX 00000 | ||
| Facsimile: 000-000-0000 | ||
To Tenant:
|
US BioEnergy Corporation | |
| Attn. Xxxx Xxxxxxxx | ||
| 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) Tenant shall meet with Tenant’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”). Landlord shall have ten (10) days after receipt of the final Plans and
Specifications in which to review and to give to Tenant written notice of its approval of the Plans
and Specifications or its requested changes to the Plans and Specifications. The Plans and
Specifications shall not either materially alter the Premises or make any exterior or structural
changes to the Premises or the Building. All Tenant Improvements shall be performed by Landlord’s
preferred vendors and Landlord will oversee the project execution. 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 based on 30,390 useable
square feet, less the unamortized portion of the prior Improvement Allowance provided in the
Amended
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and Restated Lease dated November 1, 2006, for a total amount of $251,323 (the “Improvement
Allowance”). If the cost of constructing the Tenant Improvements exceeds the Improvement
Allowance, the sums spent by Landlord in excess of the Improvement Allowance shall be paid by
Tenant to Landlord within thirty (30) days 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 September 1, 2007. 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.
(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 contractors), construction
management expenses, the cost of all permits and approvals, and all design costs and other charges
of Tenant’s designers, architects and engineers in the preparation of the Plans and Specifications.
40. PATIO ACCESS. Tenant shall have access to the 1st floor patio four (4)
times during the period of May 1 to October 1 during Building hours; provided however, such access
shall not be permitted on CHS-designated holidays or when the Building is otherwise closed. Tenant
agrees that it shall give Landlord no less than 3 business days’ notice of its intent to use such
space, and Landlord may deny such request in its reasonable discretion. Tenant agrees that one (1)
additional security personnel will be required to monitor ingress and egress to the Building
through the patio entrance, and shall pay all costs associated with the same. CHS reserves the
right to restrict or revoke Tenant’s patio access at any time for security reasons.
41. UNINTERRUPTED POWER SUPPLY (UPS) OUTLET. Landlord agrees that each
cubicle and/or office within the Premises shall have one (1) dedicated UPS outlet for necessary and
critical equipment.
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 X. Xxxxxxxx
Its: Executive Vice President |
By:/s/ Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President and CFO |
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