LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of the date set forth on the
signature page hereof between the LACKAWANNA COUNTY RAILROAD AUTHORITY, a
Municipal corporation of the Commonwealth of Pennsylvania, (the "Landlord"), and
AMBER MILLING COMPANY, A DIVISION OF HARVEST STATES COOPERATIVES, a Minnesota
cooperative corporation, to be addressed at 1667 North Snelling Avenue, P.O.Box
64594, St. Paul, Minnesota 55164 (the "Tenant").
RECITALS
WHEREAS, Landlord desires to lease to Tenant, and Tenant desires to
lease from Landlord, the approximately 42 acre site owned by Landlord and
legally described on the attached EXHIBIT A.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, Landlord and Tenant agree as follows:
ARTICLE 1. DEFINITIONS. As used in this Lease, the following (in
addition to the terms defined elsewhere herein), and whether singular or plural
thereof, shall have the following meanings when used herein with initial capital
letters:
"Awards shall mean any payment or other compensation received or
receivable from or on behalf of any governmental authority or any
person or entity vested with the power of eminent domain for or as a
consequence of any Taking.
"Commencement Date" shall mean May 1, 1997.
"Completion Date" shall mean the date that the Project is complete,
commissioned and ready for operation in accordance with its
specifications.
"Compatible Parcel" shall mean that part of the Leased Premises which
is not necessary for the efficient operation of the Project and which
is subject to the terms of Article 9 of this Lease.
"D-L" shall mean the Delaware-Lackawanna Railroad Co., Inc., its
successors and assigns.
"D-L Agreement" shall mean the transportation contract between D-L and
Tenant providing for rail transportation services to be performed by
D-L for the Project.
"Excluded Property" shall mean the machinery and equipment described on
EXHIBIT "B", including all replacements, enhancements, accessions or
substitutions thereof or thereto, and all other personal property,
office supplies, moveable office
furniture and other property constituting trade fixtures not attached
to or constituting a part of the Leased Premises.
"Force Majeure" shall mean:
(a) acts of God, landslides, lightning, earthquakes,
hurricanes, tornadoes, blizzards, fires, explosions, floods, acts of a
public enemy, wares, blockades, insurrections, riots or civil
disturbances;
(b) labor disputes, strikes, work slowdowns, or work stoppages
(excluding, however, those of Tenant's or Landlord's employees); and
(c) any other similar cause or event, provided that the
foregoing is beyond the reasonable control of the party claiming Force
Majeure.
"Hazardous Materials" shall have the meaning ascribed to it in
Section 4.03 hereof.
"Impositions" shall mean (a) all real estate, personal property,
rental, water, sewer, transit, use, occupancy and other taxes,
assessments, charges, excises and levies which are imposed upon or with
respect to (i) the Leased Premises or any portion thereof, or the
sidewalks, streets or alley ways adjacent thereto, or the ownership,
use, occupancy or enjoyment thereof, or (ii) this Lease and the Rent
payable hereunder; and (b) all charges for any easement, license,
permit or agreement maintained for the benefit of the Leased Premises.
"Landlord" shall mean the Lackawanna County Railroad Authority
identified in the opening recital of this Lease, and its successors and
assigns and subsequent owners of the Leased Premises.
"Lease" shall mean this Lease as amended in accordance with Section
20.07.
"Lease Year" shall mean the period from May 1st of each year through
April 30th of the following year.
"Leased Premises" shall mean (a) the property leased by Tenant pursuant
to this Lease as further described in EXHIBIT "A" hereto and (b) the
Project; excluding, however, the Excluded Property.
"Legal Requirements" shall mean any and all (a) judicial decisions,
orders, injunctions, writes, statutes, rulings, rules, regulations,
promulgations, directives, permits, certificates or ordinances of
Leased Premises, including zoning, environmental and utility
conservation matters, (b) insurance requirements, and (c) other written
documents, instruments or agreements relating
to the Leased Premises or to which the Leased Premises may be bound or
encumbered (as of the Commencement Date) and copies of which have been
provided to Tenant.
"Permitted Use" shall mean grain milling and its products and the
byproducts thereof, and the manufacture of any products using milled
products, by products and additives, together with all other related
business uses.
"Project" shall mean the mill, warehouse, elevator and other
improvements to be constructed by Tenant together with all alterations,
improvements and additions to and replacements of such improvements,
and shall include the Excluded Property.
"Rent" shall mean Base Rent, Additional Rent and all other amounts
provided for under this Lease to be paid by Tenant, whether as
additional rent or otherwise.
"Base Rent" shall have the meaning ascribed to it in Section
5.01.
"Additional Rent" shall have the meaning ascribed to it in
Section 5.02.
"Taking" shall mean the taking, damaging or destroying of all or any
portion of the Leased Premises by or on behalf of any governmental
authority or any other person or entity pursuant to its power of
eminent domain. "Total Taking" shall mean any Taking of all or
substantially all of the Leased Premises, or of so much of the Leased
Premises that the portion remaining cannot, in Tenant's good faith
judgment reasonably exercised, be economically restored. "Partial
Taking" shall mean any Taking of less than all of the Leased Premises
such that the portion remaining can, in Tenant's good faith judgment
reasonably exercised, be economically restored.
"Tenant" shall mean Amber Milling Company, a division of Harvest States
Cooperatives the tenant identified in the opening recital of this Lease
and its permitted Transferees which succeed to the leasehold estate
created thereby.
"Term" shall mean the effective period of this Lease, as described in
Article 3 hereof.
"Transfer" shall mean (a) an assignment (direct or indirect, absolute
or conditional, by operation of law or otherwise) by Tenant of all or
any portion of Tenant's interest in this Lease or the leasehold estate
created hereby, (b) a sublease of all or any portion of the Leased
Premises or (c) the grant or conveyance by Tenant of any concession or
license within the Leased Premises. If Tenant is a corporation then any
transfer of the Lease by merger, consolidation or dissolution.
"Transferee" shall mean the assignee, sublessee, pledgee, concessionee,
licensee or other transferee of all or any portion of Tenant's interest
in this Lease, the leasehold estate created hereby or the Leaded
Premises.
ARTICLE 2. LEASED PREMISES. Subject to the provisions of this Lease,
Landlord hereby leases, demises and lets to Tenant, and Tenant hereby leases
from Landlord, the Leased Premises.
ARTICLE 3. TERM. The Term of this Lease shall commence on the
Commencement Date and shall (subject to earlier termination as herein provided)
continue for a period of Forty (40) years thereafter.
ARTICLE 4. USE.
Section 4.01. Permitted Use. Tenant will occupy and use the
Leased Premises solely for the Permitted Use and in strict compliance with all
Legal Requirements.
Section 4.02. Specifically Prohibited Use. Tenant will not (a)
use, occupy or permit the use or occupancy of the Leased Premises for any
purpose or in any manner which is or may be directly or indirectly (i)
inconsistent with the requirements of Section 4.01 hereof, (ii) violative of any
of the Legal Requirements, (iii) dangerous to life, health, the environment or
property, or a public or private nuisance, or (iv) disruptive to the activities
of any other tenant or occupant of property adjacent to the Leased Premises, (b)
commit or permit to remain any waste to the Leased Premises, or (c) commit, or
permit to be committed, any action or circumstance in or about the Lease
Premises which, directly or indirectly, would or might justify any insurance
carrier in cancelling the insurance policies maintained by Tenant or Landlord on
the Leased Premises and improvements thereon.
Section 4.03. Environmental Restrictions. Tenant shall not
cause or permit any Hazardous Materials to be generated, treated, stored on or
about the Leased Premises or transferred to the Leased Premises in contravention
of any other Legal Requirement. Any use of Hazardous Materials by any person on
the Leased Premises shall be in strict conformance with all Legal Requirements
and shall not cause the Leased Premises to be subject to remedial obligations to
protect health or the environment. The term "Hazardous Materials" shall mean any
flammables, explosives, radioactive materials, hazardous waste, toxic substances
or related materials, including substances defined as "hazardous substances",
"hazardous materials", "toxic substances", or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801, et seq.; the Resources Conservation and Recovery Act, 42 U.S. C. Sec.
6901, et seq.; and Toxic Substance Control Act, as amended, 15 U.S.C. Sec. 2601
et seq.; or any other Legal Requirement.
ARTICLE 5. RENT.
Section 5.01. Base Rent. In consideration of Landlord's
leasing the Leased Premises to Tenant, Tenant shall pay to Landlord, commencing
as of the Commencement Date, base rent of One Dollar ($1.00) per year.
Section 5.02. Additional Rent. Tenant shall pay to the
appropriate party or to Landlord, as Additional Rent, any and all Impositions
affecting the Leased Property.
Section 5.03. Payment of Rent. Except as otherwise expressly
provided in this Lease, all Base Rent shall be due and payable in advance annual
installments on the first day of each Lease Year during the Term. The Additional
Rent shall be due and payable in accordance with the terms thereof. Rent shall
be paid to Landlord at its address for notice hereunder or to such other person
or at such other address as Landlord may from time to time designate in writing.
Rent shall be paid in legal tender of the United States of America without
notice, demand, abatement, deduction or offset.
ARTICLE 6. CONSTRUCTION, OWNERSHIP AND OPERATION OF THE PROJECT.
Section 6.01. The Project. Subject to delays caused by Force
Majeure, Tenant shall complete, at its sole cost and expense, the Project.
Tenant shall construct the Project in a good and workmanlike manner and in
compliance with the then effective applicable Building Codes and all applicable
Legal Requirements. Tenant shall test all fill used in construction of the
Project for the presence of Hazardous Materials. Tenant shall provide a copy of
all test results to Landlord.
Section 6.02. Alterations and Improvements. Tenant shall have
the right to make alterations, additions, or improvements to the Leased Premises
or the Project, including constructing or improving buildings. Such alterations,
additions and improvements shall be done at Tenant's cost and expense and in a
good and workmanlike manner.
Section. 6.03. Permits. Tenant shall obtain and maintain
in effect at all times during the Term all permits, license and
consents required or necessary of the construction, installation,
maintenance, use and operation of the Project and Tenant's use and
occupancy of and operations at the Leased Premises.
Section. 6.04. Ownership and Removal of the Excluded Property.
The Project (including the Excluded Property) shall constitute Tenant
improvements, provided that the Project (excluding the Excluded Property) shall
be surrendered with the Leased Premises as part thereof at the expiration or
earlier termination of the Term without any payment, reimbursement or
compensation therefor. Tenant shall remove the Excluded Property upon the
expiration or earlier termination of the Term and Tenant shall repair all damage
to the
Leased Premises caused by such removal. If Tenant fails to remove the Excluded
Property within 240 days following the expiration or earlier termination of the
Term, then at Landlord's election, (x) Tenant's rights, title and interest in
and to such Excluded Property shall be vested in Landlord (without the necessity
of executing any conveyance instruments) or (y) Landlord shall be entitled to
remove and store such Excluded Property at Tenant's expense. If Landlord is
required by Legal Requirements to remove the Project from the Leased Premises
upon or at any time within five (5) years after the termination of the Lease,
Tenant shall remove the Project at its sole cost and expense.
Section 6.05. Condition of Leased Premises. Tenant
acknowledges that Tenant has independently and personally inspected the Leased
Premises and that Tenant has entered into this Leased based upon such
examination and inspection. Except for the warranties contained in Article 16,
Tenant accepts the Leased Premises in its present condition, "AS IS, WITH ALL
FAULTS, IF ANY, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED;"
specifically (without limiting the generality of the foregoing) without any
warranty of (a) the nature or quality of any construction, structural design or
engineering of any improvements currently located at or constituting a portion
of the Leased Premises, (b) the quality of the labor and materials included in
any such improvements, or (c) the suitability of the Leased Premises for any
particular purpose or developmental potential. Landlord shall not be required to
make any improvements to the Leased Premises or to repair any damages to the
Leased Premises or to pay for any environmental remediation or cleanup expenses
on the Leased Premises.
Section 6.06. Repair and Maintenance. Tenant shall maintain
the Leased Premises at all times during the Term in as good, clean, safe,
operable and well-kept condition as at the Commencement Date, and will not
commit or allow to remain any waste or damage to any portion of the Leased
Premises.
Section 6.07. Laborers and Mechanics. Tenant shall pay for all
labor and services performed for, materials used by or furnished to Tenant, or
used by or furnished to any contractor employed by Tenant with respect to the
Leased Premises and hold Landlord and the Leased Premises harmless and free from
any liens, claims, encumbrances or judgments created or suffered by Tenant. If
Tenant elects to post a payment or performance bond or is required to post an
improvement bond with a public agency in connection with the above, Tenant
agrees to include Landlord as an additional obligee thereunder.
ARTICLE 7. LANDLORD'S CONTRIBUTION TO PROJECT. Landlord agrees to make
available to Tenant a PENNDOT Grant of up to a maximum of Seven Hundred Thirteen
Thousand Six Hundred Thirty Seven and No/100 Dollars ($713,637.00) for
infrastructure improvements subject to PENNDOT approval. Infrastructure
improvements may include the following: (i) road construction and improvements
(including any public road improvements, traffic lights, or other improvements
related thereto); (ii) construction of utilities to serve the Project
(including, without limitation, electrical, sanitary sewer, storm sewer or
drainage, water, natural or propane gas) and the purchase of any equipment in
connection therewith; and (iii) rail or rail related purchase and construction.
Notwithstanding the foregoing, Tenant shall pay all water, gas,
electricity, telephone, sewage treatment and drainage and any other utilities or
similar service charges or fees used in or on the Leased Premises. Tenant shall
pay the same promptly as such charges accrue, and agrees to protect, indemnify
and hold Landlord harmless from and against any and all liability for any such
costs or charges. To the extent Landlord provides any such services to the
Leased Premises or pays the cost for any such services, Tenant shall pay to
Landlord the cost of such services as Rent hereunder upon receiving an invoice
therefor pursuant to Section 5.03 hereof.
ARTICLE 8. OPTION TO PURCHASE.
Section 8.01. Grant of Option. For valuable consideration by
Tenant to Landlord, the receipt of which is hereby acknowledged, Landlord hereby
grants to Tenant the exclusive and irrevocable right and option from the
Commencement Date through and during the Term of the Lease, and regardless of
whether Tenant is in default hereunder, to elect to purchase the Leased Premises
on the terms and conditions set forth in this Article (the "Option"). At the
request of either Landlord or Tenant a Short Form Option Agreement evidencing
the terms of this Article 8 shall be signed by the parties and placed of record.
Section 8.02 Exercise of Option. Tenant shall exercise the
Option to purchase the Leased Premises at any time, on or before the expiration
of the Term of this Lease, or any extension thereof, by either: (a) delivering
to Landlord written notice of such exercise, or (b) mailing such notice by
registered or certified mail to Landlord at Landlord's mailing address set forth
in the notice section of this Lease. In the event that the Option is not
exercised on or before said date, the Option shall thereupon terminate without
any further action by Landlord or Tenant including, without limitation, without
notice or other release or writing required to be placed of record.
Section 8.03. Purchase Price and Payments. The purchase
price for the Leased Premises upon exercise of the Option shall be One
Dollar ($1.00).
Section 8.04. Contract for Sale. If the Option is exercised by
Tenant, this instrument and the provisions herein set forth shall constitute the
contract of sale between Landlord and Tenant and the same shall survive the
delivery of the deed to Tenant by Landlord.
Section 8.05. Title and Survey. Landlord hereby agrees to
the following upon exercise of the Option by the Tenant:
(a) Title to the Leased Premises to be transferred and
conveyed to Tenant shall be of good record and
marketable title and clear of all liens,
restrictions, covenants, conditions and encumbrances
(except Permitted Exceptions as hereinafter defined)
and the conveyance of title to the Premises shall be
by quit claim deed.
(b) As evidence of Landlord's title, Tenant shall obtain
at Tenant's sole cost and expense, a commitment from
a title company selected by Tenant (the "Title
Company") to issue to Tenant or its designee as
proposed insured which shall show that Landlord's
title to the premise is in the condition required by
Paragraph 8.5(a) hereof, subject only to the
Permitted Exceptions.
(c) If the aforesaid title insurance commitment issued by
the Title Company shows that title is not in the
condition required by Paragraph 8.5(a) hereof,
Landlord shall use reasonable efforts to remedy said
defects. Landlord shall have one hundred twenty (120)
days (the "Cure Period") in which to remedy the
defects of title shown thereon or to obtain title
insurance by the Title Company insuring over and
against such defects (the premium for which, to the
extent such premium exceeds the premium for a title
insurance policy not insuring over and against such
defects, shall be paid by Tenant) and provide
evidence satisfactory to Tenant thereof. If Landlord
fails to remedy such defects within such Cure Period,
Tenant shall have the option, exercisable within ten
(10) days from the expiration of Landlord's Cure
Period, by written notice to Landlord, to (i) accept
conveyance of title subject to such title defects,
and proceed with the purchase of the Leased Premises
(in which event said Title Commitment and the Quit
Claim Deed will be accepted subject to any such
defects), or (ii) to terminate this Agreement. If
Tenant fails to make such written election within
such ten (10) day period, Tenant shall be deemed to
have elected option (i).
ARTICLE 9. COMPATIBLE PARCEL. Landlord agrees that at any time during
the Term of this Lease the Compatible Parcel shall be available for purchase or
sublease, at the option of Tenant, by industries compatible to the Project and
which are attracted to the Leased premises by reason of the Project ("Compatible
Industries"). If after five (5) years after the Completion Date Compatible
Industries have not purchased or subleased the Compatible Parcel and if the
Landlord requires the use of the Compatible Parcel for lease or sale to another
commercial business after five (5) years following the Completion Date, the
Compatible Parcel shall be either severed from this Lease or, if Tenant has
exercised its option to purchase the Leased Premises pursuant to Article 8,
reconveyed to Landlord, upon terms and
conditions, including granting by Landlord to Tenant of any necessary easements
so as not to adversely affect Tenant's efficient operation of the Project,
mutually agreeable to Landlord and Tenant. All costs and expenses of severing
the Compatible Parcel from the Leased Premises if required for use by the
Landlord shall be borne by the Landlord. All costs and expenses of severing the
Compatible Parcel from the Leased Premises if required for use by a Compatible
Industry shall be borne by the Tenant. If a Compatible Parcel is sold or leased
to another party, all rentals or sales proceeds resulting therefrom shall belong
to and be the sole property of the Landlord.
ARTICLE 10. TRANSFER BY TENANT.
Section 10.01. General. Tenant shall not effect or suffer any
Transfer without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Any attempted Transfer without such consent shall be
void and of no effect. If Tenant desires to effect a Transfer, it shall deliver
to Landlord written notice thereof in advance of the date on which Tenant
proposes to make the Transfer, together with all of the terms of the proposed
Transfer and the identity of the proposed Transferee. Landlord shall have 45
days following receipt of the notice and information within which to notify
Tenant in writing whether Landlord elects (a) to refuse to consent to the
Transfer and to continue this Lease in full force and effect as to the entire
Leased Premises, or (b) to permit Tenant to effect the proposed Transfer. If
Landlord fails to notify Tenant of its election within said 45 day period,
Landlord shall be deemed to have elected option (b). The consent by Landlord to
a particular Transfer shall not be deemed a consent to any other Transfer. If a
Transfer occurs without the prior written consent of Landlord as provided in
this Section 10.01, Landlord may nevertheless collect rent from the Transferee
and apply the net amount collected to the Rent payable hereunder, but such
collection and application shall not constitute a waiver of the provisions
hereof or a release of Tenant from the further performance of its obligations
hereunder. Notwithstanding the foregoing, Tenant may, without Landlord's
consent, effect or suffer a Transfer to any person or entity in which Tenant
maintains at least a 50% interest in the equity or voting rights thereof,
provided that in case of such Transfer, Tenant shall not be relieved of its
obligations under this Lease.
Section 10.02. Conditions. The following conditions shall
automatically apply to each Transfer, without the necessity of same
being stated in or referred to in Landlord's written consent:
(a) Tenant shall execute, have acknowledged and deliver to
Landlord, and cause the Transferee to execute, have acknowledged and
deliver to Landlord, an instrument in form and substance acceptable to
Landlord in which (i) the Transferee adopts this Lease and assumes and
agrees to perform, jointly and severally with Tenant, all of the
obligations of Tenant hereunder, as to the space transferred to it,
(ii) the Transferee grants Landlord
an express first and prior contract lien and security interest in its
improvements located upon and property brought into the transferred
premises to secure its obligations to Landlord hereunder, (iii) Tenant
subordinate to Landlord's statutory lien, contract lien and security
interest in any liens, security interests or other rights which Tenant
may claim with respect to any property of the Transferee, (iv) the
Transferee agrees to use and occupy the transferred space solely for
the purposes permitted under Article 4 and otherwise in strict
accordance with this Lease and (v) Tenant acknowledges and agrees in
writing that, notwithstanding the Transfer, Tenant remains directly and
primarily liable for the performance of all the obligations of Tenant
hereunder (including, without limitation, the obligation to pay all
Rent), and Landlord shall be permitted to enforce this Lease against
Tenant or the Transferee, or either of them, without prior demand upon
or proceeding in any way against any other persons, and
(b) Tenant shall deliver to Landlord a counterpart of all
instruments relative to the Transfer executed by all parties to such
transaction (except Landlord).
ARTICLE 11. ACCESS BY LANDLORD. In accordance with procedures agreed
upon in writing between Tenant and Landlord, Landlord, its employees,
contractors, agents and representatives, shall have the right (and Landlord, for
itself and such persons and firms, hereby reserves the right) to enter the
Leased Premises at all hours (a) to inspect the Leased Premises, (b) to
determine whether Tenant is performing its obligations hereunder and, if it is
not, to perform same at Landlord's option and Tenant's expense, or (c) for
emergency purposes, provided that Landlord shall not unreasonably or unduly
interfere with Tenant's business operations.
ARTICLE 12. INSURANCE.
Section 12.01. Tenant's Insurance. Tenant shall obtain and
maintain throughout the Term the following policies of insurance:
(a) Insurance on the Project to or constituting a part of the
Leased Premises (including boiler and machinery insurance, as
applicable) sufficient to provide coverage for the full insurable value
thereof; and the policy for such insurance shall have replacement cost
endorsement or similar provisions. "Full insurable value" shall mean
actual replacement value, and such full insurable value shall be
confirmed from time to time (but no more frequently than the dates of
renewals of such policy) at the request of Landlord by one of the
insurers or (at the option of Landlord) by an insurance appraiser;
(b) commercial general liability covering claims for personal
injury, death and property damage occurring in or about the Leased
Premises; such insurance to afford protection to the
limits of $5,000,000 combined single limit each occurrence for bodily
injury and property damage, subject to a $10,000,000 general aggregate
limit;
(c) Vehicle liability insurance, including coverage for all
owned or leased vehicles; such insurance to afford protection to the
limits of at least $500,000 combined single limit each accident for
bodily injury and property damage;
(d) Umbrella liability insurance having limits of not less
than $20,000,000 [over and above the limits of liability on the
underlying policies specified in clause (b) and (c) above] with respect
to bodily injury or death to any number of persons in any one accident
or occurrence; and
(e) Worker's compensation insurance with limits required by
the Workers' Compensation Laws of the Commonwealth of Pennsylvania.
Tenant shall deliver to Landlord, prior to the Commencement
Date, certificates of insurance described in this Article 12, or such other
proof of insurance as shall be deemed acceptable by Landlord and shall, at all
times during the Term, deliver to Landlord upon request true and correct copies
of said insurance policies. The policies of such insurance shall (w) except for
the workers' compensation insurance, name Landlord additional insured, (x)
provide that it will not be cancelled or reduced in coverage without thirty (30)
days' prior written notice to Landlord, (y) be primary coverage, so that any
insurance coverage obtained by Landlord shall be excess thereto, and (z) permit
deductible or self-insured retention limits up to a maximum of $500,000.00.
Tenant shall deliver to Landlord certificates of renewal prior to the expiration
date of each such policy and copies of new policies prior to terminating any
such policies.
Section 12.02. Waiver of Rights. Landlord and Tenant intend
that all policies purchased in accordance with Section 12.01 will protect
Landlord and Tenant and will provide primary coverage for all losses and damages
caused by the perils covered thereby. All such policies shall contain provisions
to the effect that in the event of payment of any loss or damage the insurers
will have not right of recovery against any of the insureds or additional
insureds thereunder. Landlord and Tenant waive all rights against each other and
their respective officers, directors, employees and agents for all losses and
damages caused by, arising out of or resulting from any of the perils covered by
such policies. None of the above waivers shall extend to the rights that any
party making such waiver may have to the proceeds of insurance held by the other
as trustee or otherwise payable under any policy so issued.
ARTICLE 13. INDEMNITY.
Section 13.01. Tenant Indemnity. Except as provided in Section 13.02,
Tenant agrees to indemnify and hold Landlord 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 Tenant's acts or
omissions as lessee, occupant or operator of or at the Leased Premises, 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 Landlord's negligent acts
or omissions.
Section 13.02. Landlord Indemnity. To the full extent permitted by law,
Landlord hereby agrees to indemnify and hold Tenant harmless against and in
respect of:
(a) Any and all losses, suites, obligations, fines, damages,
judgments, injuries, administrative orders, consent agreements and order,
penalties, actions, causes of action, notices of potential responsibility or
requests for response from government agencies, response costs, charges, costs,
and expenses, including without limitation reasonable attorneys' fees and
reasonable consultants' fees, claims, including but not limited to claims
arising out of the release or threat of release of Hazardous Materials, loss of
life, injury to persons, property, or business environmental contamination or
damages to natural resources or to water supplies, whether based on tort,
contract, implied or express warranty, statute, regulations, common law, or
otherwise, which:
(i) arises out of or is related to the presence on,
remediation of, or the actual, alleged or threatened release
to or from any of the Leased Premises or any Hazardous
Materials caused by Landlord ; or
(ii) arises out of noncompliance by Landlord with any
environmental regulation relating in any way to the Leased
Premises; or
(iii) otherwise arises out of any environmental
regulation pertaining and violated by the to Landlord and in
effect on the Commencement Date relating in any way of the
Leased Premises; or
(b) All other actions, proceedings, demands, assessments,
adjustments, costs and expenses incident to the foregoing, including, without
limitation, actual attorney's fees and other out-of-pocket expenses.
ARTICLE 14. CASUALTY LOSS.
Section 14.01. Obligations to Restore.
(a) If all or any part of the Project located on (or
constituting a part of) the Leased Premises are destroyed or damaged by any
casualty during the Term, Tenant may, at its option, commence and shall
thereafter prosecute diligently to completion the restoration of the same to the
condition in which the destroyed or damaged portion existed prior to the
casualty. Tenant will perform such restoration with at least a good workmanship
and quality as the improvements being restored, and in compliance with the
provisions of Article 6 hereof. If all the Project is wholly destroyed by any
casualty, or are so damaged or destroyed that, in Tenant's good faith judgment
reasonably exercised it would be uneconomical to cause the same to be restored
(and Tenant shall give written notice of such determination to Landlord within
ninety (90) days after the date the casualty occurred), then Tenant shall not be
obligated to restore such improvements and this Lease shall terminate as of the
date of the casualty. If Landlord is required by Legal Requirements to restore
the Leased Premises to its state prior to construction of the Project after any
such casualty loss, Tenant shall restore the Leased Premises to such condition
at its sole cost and expense.
(b) If a casualty loss affecting the Leased Premises occurs,
all insurance proceeds arising from policies maintained by Tenant for the
damages arising from such casualty and which is attributed to the Project
(including the Excluded Property) shall be distributed and paid directly to and
shall be the property of Tenant.
Section 14.02. Notice of Damage. Tenant shall immediately
notify Landlord of any destruction of or damage to the Leased Premises.
ARTICLE 15. CONDEMNATION.
Section 15.01. Total Taking. If a Total Taking of the Leased
Premises occurs, then this Lease shall terminate as of the date the condemning
authority takes lawful possession of the Leased Premises and Tenant shall be
entitled to receive and retain the Award for the Taking of the Project
(including the Excluded Property) and Landlord shall be entitled to receive and
retain the Award for the Taking of the balance of the Leased Premises.
Section 15.02. Partial Taking. If a Partial Taking of the
Leased Premises occurs, (a) this Lease shall continue in effect as to the
portion of the Leased Premises not Taken, and (b) Tenant shall promptly commence
and thereafter prosecute diligently to completion the restoration of the
remainder of the Project located in (or constituting a part of) the Leased
Premises to an economically viable unit with at least as good workmanship and
quality as existed prior to the Taking. In the event of a Partial Taking of the
Leased Premises,
Tenant shall be entitled to receive and retain the Award for the portion of the
Project Taken and the Landlord shall be entitled to receive and retain the Award
for the balance of the Leased Premises.
Section 15.03. Notice of Proposed Taking. Tenant and Landlord
shall immediately notify the other of any Proposed Taking of any portion of the
Leased Premises.
Section 15.04. Option to Purchase. Nothing contained in this
Article 15 shall be construed as limiting Tenant's rights to purchase the Leased
Premises pursuant to Article 8 during the pendency of any proceeding for a
Taking or Partial Taking of the Leased Premises and/or the Project and Landlord
agrees that Tenant shall control the position of Tenant and/or Landlord during
the pendency of such proceeding upon giving the Option Notice.
ARTICLE 16. LANDLORD'S REPRESENTATIONS AND WARRANTIES.
Section 16.01. Quiet Enjoyment. Tenant, on paying the Rent and
all other sums called for herein and performing all of Tenant's other
obligations contained herein, shall and may peaceably and quietly have, hold,
occupy, use and enjoy the Leased Premises during the Term subject to the
provisions of this lease. Landlord agrees to warrant and forever defend Tenant's
right to occupancy of the Leased Premises against the claims of any and all
persons whosoever lawfully claiming the same or any part thereof.
Section 16.02. Warranties Pertaining to Hazardous Materials.
Landlord hereby makes the following representations and warranties to Tenant
pertaining to Hazardous Materials affecting the Leased Premises:
(a) Except as disclosed on Schedule 16.02, no Hazardous
Materials have been discharged, dispersed, released, stored, treated,
generated, or allowed to escape in, on, under, or about the Leased
Premises in violation of any applicable federal, state or local law,
statute, ordinance, rule or regulation by the Landlord.
(b) Except as disclosed on Schedule 16.02, Landlord's
operations at the Leased Premises are in compliance with all applicable
federal, state, and local statutes, laws, ordinances, rules and
regulations related to Hazardous Materials.
(c) Except as disclosed on Schedule 16.02, Landlord has not at
any time received any verbal or written notice from any person, entity,
or governmental body claiming a potential or actual violation by
Landlord of any statute, law, ordinance, rule or regulation related to
Hazardous Materials in connection with Landlord's operations at the
Leased Premises.
(d) Except as disclosed on Schedule 16.02, Landlord has not at
any time received any verbal or written notice from any person, entity,
or governmental body demanding payment or contribution from Landlord
for environmental damage or injury to natural resources.
(e) Except as disclosed on Schedule 16.02, Landlord is not
aware of any threatened or anticipated notices or claims of the type
described above in sub-paragraphs (iii) and (iv).
(f) Except as disclosed on Schedule 16.02, there are not now
and have not in the past been any underground storage tanks at the
Leased Premises.
ARTICLE 17. DEFAULTS AND REMEDIES.
Section 17.01. Events of Default. Each of the following
occurrences shall constitute an "Event of Default" by Tenant under this Lease:
(a) The failure of Tenant to pay Rent as and when due
hereunder and the continuance of such failure for a period of thirty
(30) days after receipt by Tenant of written notice thereof.
(b) The failure of Tenant to perform, comply with or observe
any other agreement, obligation or undertaking of Tenant, or any other
term, condition or provision, in this Lease, and the continuance of
such failure for a period of ninety (90) days after written notice from
Landlord to Tenant specifying the failure; provided that Tenant shall
not be deemed to be in default if the failure cannot be reasonably
cured within the ninety (90) days and Tenant commences to cure the
failure within the ninety (90) days and thereafter pursues the curing
of same diligently until completion; and
(c) The filing of a petition by or against Tenant (i) in any
bankruptcy or other insolvency proceeding, (ii) seeking any relief
under the Code or any similar debtor relief law, (iii) for the
appointment of a liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease or (iv) to
reorganize or modify Tenant's capital structure.
Section 17.02. Remedies of Landlord. Upon any Event of
Default, Landlord may, at Landlord's option and in addition to all other rights,
remedies and recourses afforded Landlord hereunder or by law or equity,
terminate this Lease by the giving of written notice to Tenant, in which event
Tenant shall pay to Landlord upon demand the sum of (i) all Rent and other
amounts accrued hereunder to the date of termination, and (ii) damages in an
amount equal to the total Rent that Tenant would have been required to pay for
the remainder of the
Term and any costs related to the removal of the Project (if required of
Landlord by Legal Requirements) and Excluded Property.
Section 17.03. Landlord's Right to Pay or Perform. If Tenant
fails to perform or observe any of its covenants, agreements, or obligations
hereunder for a period of thirty (30) days after notice of such failure is given
by Landlord, then in addition to all other rights of Landlord provided herein
Landlord shall have the right, but not the obligation, at its sole election to
perform or observe the covenants, agreements, or obligations which are asserted
to have not been performed or observed at the expense of Tenant and to recover
all costs or expenses incurred in connection therewith as Additional Rent
hereunder by delivering an invoice therefor to Tenant. Any performance or
observance by Landlord pursuant to this Section 17.03 shall not constitute a
waiver of Tenant's failure to perform or observe.
Section 17.04. Injunctive Relief; Remedies Cumulative.
Landlord may restrain or enjoin any Event of Default or threatened Event of
Default by Tenant hereunder without the necessity of proving the inadequacy of
any legal remedy or irreparable harm. The rights, remedies and recourse of
Landlord for an Event of Default shall be cumulative and no right, remedy or
recourse of Landlord, whether exercised by Landlord or not, shall be deemed to
be in exclusion of any other.
Section 17.05. No Waiver, No Implied Surrender. Provisions of
this Lease may not be waived orally or impliedly, but only by the party entitled
to the benefit of the provision evidencing the waiver in writing. Thus, neither
the acceptance of Rent by Landlord following an Event of Default, (whether known
to Landlord or not), nor any other custom or practice followed in connection
with this Lease, shall constitute a waiver by Landlord of such Event of Default
or any other Event of Default. Further, the failure by Landlord to complain of
any action or inaction by Tenant, or to assert that any action or inaction by
Tenant constitutes (or would constitute, with the giving of notice and the
passage of time) an Event of Default, regardless of how long such failure
continues, shall not extinguish, waive or in any way diminish the rights,
remedies and recourses of Landlord with respect to such action or inaction. No
waiver by Landlord of any provision of this Lease or of any breach by Tenant of
any obligation of Tenant hereunder shall be deemed to be a waiver of any other
provision hereof, or of any subsequent breach by Tenant of the same or any other
provision hereof. Landlord's consent to any act by Tenant requiring Landlord's
consent shall not be deemed to render unnecessary the obtaining of Landlord's
consent to any subsequent act of Tenant. No act or omission by Landlord (other
than Landlord's execution of a document acknowledging such surrender) or
Landlord's agents, including the delivery of the keys to the Leased Premises,
shall constitute an acceptance of a surrender of the Leased Premises.
ARTICLE 18. RIGHT OF RE-ENTRY. Upon the expiration or termination of
the Term, Tenant shall immediately, quietly and peaceably surrender to Landlord
possession of the Leased Premises in the condition and state of repair required
under Section 6.05 hereof and Tenant shall remove the Excluded Property and the
Project (if required by any Legal Requirements) in accordance with Section 6.03
hereof. If Tenant fails to surrender possession as herein required, Landlord may
initiate any and all legal action as Landlord may elect to dispossess Tenant and
all of its Excluded Property, and all persons or firms claiming by, through or
under Tenant and all of their Excluded Property and the Project (if required by
any Legal Requirements), from the Leased Premises, and may remove from the
Leased Premises and store without any liability for loss, theft, damage or
destruction thereto)any such Excluded Property at Tenant's sole cost and
expense. For so long as Tenant remains in possession of the Leased Premises
after such expiration, termination or exercise by Landlord of its re-entry
right, Tenant shall be deemed to be occupying the Leased Premises as a
tenant-at-sufferance, subject to all of the obligations of Tenant under this
Lease. No such holding over shall extend the Term. If Tenant fails to surrender
possession of the Leased Premises in the condition herein required, Landlord
may, at Tenant's expense, restore the Leased Premises to such condition.
ARTICLE 19. CONDITIONS PRECEDENT TO TENANT'S OBLIGATIONS. The
obligations and liabilities of Tenant arising under this Lease are subject to
and contingent upon the following:
Section 19.01. D-L Agreement. Tenant and D-L shall have
entered into the D-L Agreement upon terms and conditions reasonably acceptable
to Tenant, which agreement shall contain a minimum term of 40 years, shall bind
Landlord to the terms thereof and shall commit Landlord to provide rail service
to the Project in accordance with the D-L Agreement either through itself, the
D-L, or other entity reasonably acceptable to Tenant.
Section 19.02. Permits and Approvals. Tenant shall have
obtained all federal, state, county and local platting, subdivision, permits and
other approvals required for construction and operation of the Project.
Section 19.03. Construction Contracts. Tenant shall have
executed construction, electrical, engineering and equipment supply contracts
for construction and operation of the Project upon terms and conditions
reasonably acceptable to Tenant.
Section 19.04. Utility Service Contracts. Tenant shall have
obtained electrical power, water, sewer, natural and/or propane gas and other
service contracts required for operation of the Project upon terms and
conditions reasonably acceptable to Tenant.
Section 19.05. Engineering Tests. Tenant shall have obtained
and completed all engineering tests, including soil tests,
necessary for construction of the Project, the results of which shall
be reasonably satisfactory to Tenant.
The foregoing conditions shall be satisfied, or waived in
writing by Tenant in its sole discretion, on or before December 31, 1997, or
either party may, upon ten (10) days prior written notice to the other, elect to
terminate this Lease. Upon such termination, neither party shall have any
further rights or obligations to the other.
If Landlord elects to terminate this Lease as provided in the
preceding paragraph then, within such ten (10) day notice period, Tenant may
waive in writing any conditions remaining unsatisfied, in which event this Lease
shall remain if full force and effect.
ARTICLE 20. MISCELLANEOUS.
Section 20.01. Time of Essence. Time is of the essence with
respect to each date or time specified in this Lease by which an event is to
occur.
Section 20.02. Applicable Law. This Lease shall be governed by
the laws of the Commonwealth of Pennsylvania.
Section 20.03. Estoppel Certificate. From time to time at the
request of Landlord, Tenant will promptly and without compensation or
consideration execute, have acknowledged and deliver a certificate stating (a)
the rights (if any) of Tenant to extend the Term or to expand the Leased
Premises, (b) the Rent (or any components of the Rent) currently payable
hereunder, (c) whether this Lease has been amended in any respect and, if so,
submitting copies of or otherwise identifying the amendments, (d) whether,
within the knowledge of Tenant after due investigation, there are any existing
breaches or defaults by Landlord hereunder and, if so, stating the defaults with
reasonable particularity and (e) such other information pertaining to this Lease
as Landlord may reasonably request.
Section 20.04. Signs. Tenant shall be permitted to install any
signs, placards or other advertising or identifying marks upon the Leased
premises or upon the exterior of any improvements to or constituting a part of
the Leased Premises provided that such signs have been approved in writing in
advance by Landlord, which approval shall not be unreasonably withheld. Tenant
agrees to remove promptly (at Tenant's sole cost and expense) upon the
expiration or earlier termination of the Term any and all such signs, placards
or other advertising or identifying marks.
Section 20.05. Relation of the Parties. Nothing in this Lease
shall be construed to make the parties partners or joint venturers or to render
either party liable for any obligation of the other.
Section 20.06. Notices. All notices and other communications
given pursuant to this Lease shall be in writing and shall either be mailed by
first class United States mail, postage prepaid, registered or certified with
return receipt requested, and addressed as set forth in this Section 21.06, or
delivered in person to the intended addressee, or sent by prepaid telegram,
cable or telex followed by a confirmatory letter. Notice mailed in the aforesaid
manner shall become effective three business days after deposit; notice given in
any other manner, and any notice given to Landlord shall be effective only upon
receipt by the intended addressee. For the purposes of notice, the address of
(a) Landlord shall be:
Lackawanna County Railroad
701 Wyoming Avenue
Scranton, Pennsylvania 18509
Attn: Lawrence C. Malski, Esq.
Executive Director and General Counsel
and
(b) Tenant shall be:
Amber Milling Company, a division of
Harvest States Cooperatives
1667 North Snelling Avenue
P.O. Box 64594
St. Paul, Minnesota 55164
Attn: President, Amber Milling Company
with a copy to:
Harvest States Cooperatives
1667 North Snelling Avenue
P.O. Box 64594
St. Paul, Minnesota 55164
Attn: Legal Department
Each party shall have the continuing right to change its address for notice
hereunder by the giving of fifteen (15) days' prior written notice to the other
party in accordance with this Section 20.06; provided, however, if Tenant
vacates the location that constitutes its address for notice hereunder without
changing its address for notice pursuant to this Section 20.06, then Tenant's
address for notice shall be deemed to be the Leased Premises.
Section 20.07. Entire Agreement, Amendment and Binding Effect.
This constitutes the entire agreement between Landlord and Tenant relating to
the subject matter hereof and all prior agreements
relative hereto which are not contained herein are terminated. This Lease may be
amended only by a written document duly executed by Landlord and Tenant, and any
alleged amendment which is not so documented shall not be effective as to either
party. The provisions of this Lease shall be binding upon and inure to the
benefit of the parties hereto and their heirs, executors, administrators,
successors and assigns; provided, however, that this 21.09 shall not negate,
diminish or later the restrictions on Transfers applicable to Tenant set forth
elsewhere in this Lease.
Section 20.08. Severability. This Lease is intended to be
performed in accordance with and only to the extent permitted by all Legal
Requirements. If any provision of this Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, but the extent of the invalidity or unenforceability does not
destroy the basis of the bargain between the parties as contained herein, the
remainder of this Lease and the application of such provision to other persons
or circumstances shall not be affected thereby, but rather shall be enforced to
the greatest extent permitted by laws.
Section 20.09. Construction. Unless the contest of this Lease
clearly requires otherwise, (a) pronouns, wherever used herein, and of whatever
gender, shall include natural persons and corporations and associations of every
kind and character; (b) the singular shall include the plural wherever and as
often as may be appropriate; (c) the term "includes" or "including" shall mean
"including without limitation"; (d) the word "or" has the inclusive meaning
represented by the phrase "and/or"; and (e) the words "hereof" or "herein" refer
to this entire Lease and not merely the Section or Article number in which such
words appear. Article and Section headings in this Lease are for convenience of
reference and shall not affect the construction or interpretation of this Lease.
Any reference to a particular "Article" or "Section" shall be construed as
referring to the indicated article or section of this Lease.
Section 20.10. Recording. Landlord agrees that this Lease
(including any Exhibit hereto) or a memorandum hereof may be recorded by Tenant.
Section 20.11. Incorporation by Reference. Exhibits "A", "B"
and "B-1" hereto are incorporated herein for any and all purposes.
Section 20.12. Force Majeure. Landlord and Tenant shall be
entitled to rely upon Force majeure as an excuse for timely performance
hereunder only as expressly provided herein and shall not be entitled to rely
upon Force Majeure as an excuse for timely performance unless the party seeking
to rely on Force majeure (a) uses its good faith efforts to overcome the effects
of the event of Force Majeure, (b) gives written notice to the other party
within five (5) days after the occurrence of the event describing with
reasonable particularity the nature thereof, (c) commences performance of its
obligations hereunder immediately upon the cessation of the event and (d) give
written notice to the other party within five (5) days after the cessation of
the event advising the other party of the date upon which the event ceased to
constitute an event of Force Majeure.
Section 20.13. Interpretation. Both Landlord and Tenant and
their respective legal counsel have reviewed and have participated in the
preparation of this Lease. Accordingly, no presumption will apply in favor of
either Landlord or Tenant in the interpretation of this Lease or in the
resolution of the ambiguity of any provision hereof.
Section 20.14. Multiple Counterparts. This Lease may be
executed in two or more counterparts, each of which shall be an original, but
all of which shall constitute but one instrument.
EXECUTED as of May 30, 1997.
ATTEST/SEAL: AMBER MILLING COMPANY, A
DIVISION OF HARVEST STATES
COOPERATIVES
Nanci L. Lilja BY: /s/ Garry A. Pistoria
- -------------------------------- ------------------------------
ASSISTANT SECRETARY NAME Garry A. Pistoria
-----------------------------
TITLE President
----------------------------
(Affix Corporate Seal Here)
LACKAWANNA COUNTY RAILROAD
John M. Murgia BY: /s/ Paul R. Hart
- -------------------------------- ------------------------------
ASSISTANT SECRETARY NAME Paul R. Hart
-----------------------------
TITLE Chairman
----------------------------
(Affix Corporate Seal Here)
EXHIBIT "A"
ALL THAT CERTAIN property of the Grantor, located at Mt. Pocono, with
the improvements thereon, being adjacent to Grantor's former line of railroad
known as the Scranton Branch and identified as Line Code 6201 in the Recorder's
Office of Monroe County in Deed Book Volume 902 at page 144, also formerly known
as the Mt. Pocono Automobile Unloading Terminal, situate partly in the Townships
of Pocono, Tobyhanna and Coolbaugh, County of Monroe and Commonwealth of
Pennsylvania, all as indicated by "PS" on Grantor's Case Plan No. 70139, dated
September 4, 1991, which is attached hereto and made a part hereof; being
further described as follows:
BEING all that property at said location which lies northwest of said
Scranton Branch and southeast of the westerly edge of the access road located
within said property.
CONTAINING 41.476 acres, more or less, of land.
BEING a part or portion of the same premises which Thomas F. Patton and
Ralph S. Tyler, Jr., as Trustees of the Property of Erie Lackawanna Railroad
Company, Debtor, by Conveyance Document No. EL-CRC-RP-62, dated March 31, 1976
and recorded on October 16, 1978, in the Recorder's Office of Monroe County,
Pennsylvania, in Deed Book Volume 902 at page 139&c., granted and conveyed unto
Consolidated Rail Corporation.
EXCEPTING AND RESERVING, thereout and therefrom and unto the said
Grantor, its lessees, successors and assigns, permanent, perpetual and
assignable easements and rights in, on, under, above, over, across and through
the existing access road, located on the northwesterly portion of the Premises,
as a means of unimpeded and immediate ingress and egress to and from Grantor's
adjoining and adjacent property, and as indicated by "ER" on the aforementioned
Grantor's Case Plan No. 70139.
UNDER and SUBJECT, however, to any easements or agreements of record or
otherwise affecting the Premises, and to the state of facts which a personal
inspection or accurate survey would disclose, and to any pipes, wires, fiber
optic lines, poles, cables, culverts, drainage courses or systems and their
appurtenances now existing and remaining in, on, under, over, across and through
the Premises; together with the right to maintain, repair, renew, replace, use
and remove same.
AND
One Mile of side track adjacent to the Site between mile posts 101.2 and 102.2.
EXHIBIT B
Excluded property:
All Milling Equipment, including, but not limited to:
Roller Mills, Plan and Quiver (Vibro) Sifters, Purifiers, Bran and Shorts
Dusters, Flake disrupters, Spouting, Conveyance equipment (mechanical and
pneumatic), Filters, Metal surge and set-off bins, feeders, vibro bin bottoms,
level devices, Scales, Bucket Elevators, airlocks, Electric motors, Pin mills,
Blowers (compressed air and positive pneumatics), Bin dischargers, Packaging
equipment, air dryers, shelving/racking and Aspirators.
All Grain Cleaning/conditioning Equipment, including, but not limited to:
Magnets, Separators, flow detectors, Gravity selectors, Scourers, intermediate
decanters, infestation destroyers, airlocks, automatic tempering systems, Grain
tempering mixers, Conveyance equipment (mechanical and pneumatic), Filters,
Fans, Bucket Elevator Monitoring system, Electric Motors, Aspirators, Blowers
(compressed air and positive pneumatics), disc cylinder separators, Gravity
tables, and spiral seed separators.
The Removable Electrical Equipment, including, but not limited to:
Motor control centers, starters, Variable speed drives, motors, Harmonic
controls, Automation equipment, Programmable Logic Controllers, Computers, Scale
data processors, Switch gear, electrical disconnects and I.O. racks.
All spare parts and replacements, parts which are replacements for all items
listed above.