Exhibit 10(i).13
OPTION TO LEASE REAL ESTATE AGREEMENT
THIS OPTION TO LEASE REAL ESTATE
AGREEMENT
(this
"Agreement") is entered
into as of this 15th day of January,
2007 by and between Dennis Grain,
Inc., a
Nebraska
corporation
(hereinafter
referred to as "Owner") and NEDAK
Ethanol,
LLC,
a
Nebraska
limited
liability
company
(hereinafter
referred
to
as
"Prospective Tenant").
RECITALS
A.
Owner is the owner of certain
real estate
located
generally
at the
intersection of Sale Barn Road and 10th Street in O'Neil, Holt
County,
Nebraska,
more
accurately
identified on the map attached
hereto as
Exhibit "A" and the legal description
attached hereto as Exhibit "B".
Such real estate is hereinafter referred to as the "Option
Property".
B.
The
parties
desire
to
execute
this
Agreement,
thereby
granting
Prospective
Tenant the sole and exclusive
option to lease the Option
Property, pursuant to the terms set forth below.
NOW,
THEREFORE,
for
just
and
proper
consideration,
the
receipt
and
sufficiency of which are hereby acknowledged, the parties do hereby
agree to the
following:
1.
Owner hereby grants to Prospective Tenant sole and exclusive option
to
lease the Option Property. The option to lease the Option Property
may
hereinafter be referred to as the "Option".
2.
Prospective
Tenant
may
exercise
the
Option
to lease
the
Option
Property
at any time
during the Term of this
Agreement
(as defined
below). Within fifteen (15) days upon Prospective Tenant's exercise
of
the Option, given via written notice from Prospective Tenant to
Owner,
the parties shall execute the ground lease attached
hereto as Exhibit
"C" (the "Ground Lease").
3.
In
consideration of this Agreement,
Prospective
Tenant shall pay to
Owner the sum of Two
Hundred
Dollars and No Cents
($200.00)
within
five (5) days following the date hereof.
Such funds shall hereinafter
be
referred to as the
"Deposit."
Upon the
execution
of the Ground
Lease,
the parties shall apply the Deposit to any
consideration
due
thereunder.
4.
Prospective
Tenant may exercise the Option at any time within one (1)
year
following the
execution of this
Agreement
(the
"Term").
The
Option shall be
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deemed void
should
Prospective
Tenant
fail to exercise
the Option
within such time.
5.
During the term of this
Agreement,
Owner shall (i) not
encumber the
Option
Property
or any part
thereof,
(ii)
not
sell or
otherwise
transfer title to the Option Property or any part thereof to any
third
party, or (iii) reject any prospective purchase agreements or
purchase
offers for the Option
Property or any part
thereof
presented by any
third party.
6.
Prospective
Tenant shall have the right to enter the Option
Property
during
the
Term of this
Agreement
upon
reasonable
notice
and at
reasonable times to conduct
geotechnical surveys and/or environmental
tests,
including,
but not limited to,
so-called "Phase I" or "Phase
II" environmental
analyses, and tests to determine whether the Option
Property will be suitable for Prospective
Tenant's potential business
purposes set forth in the Ground Lease.
Prospective
Tenant agrees to
indemnify and hold harmless Owner against any and all claims,
actions,
damages,
liability
and
expense
in
connection
with
loss of life,
personal injury and/or damage to property arising from such surveys
or
tests; provided,
however, that Owner shall not be indemnified for the
negligence or willful
misconduct of Owner, or its employees,
agents,
contractors or invitees.
7.
Whenever in this
Agreement
it shall be required
or
permitted
that
notice be given by either party hereto to the other, such notice
shall
be forwarded by hand, certified mail, or overnight delivery,
addressed
as follows:
If to Owner:
Dennis Grain, Inc.
406 S. 10th St.
O'Neill, Nebraska 68763
Attn: Steve Dennis
If to Prospective Tenant:
NEDAK Ethanol, LLC
PO Box 391
Atkinson, Nebraska 68713
Attn: Jerome Fagerland
Such notices shall be deemed
received when such
certified
letter is
deposited
in
the
mail
or
notice
is
transferred
to a
reputable
overnight delivery service.
8.
Prospective
Tenant shall not assign any or all of its rights
arising
from this Agreement
without the prior written approval of Owner, such
approval not to be unreasonably
withheld or delayed.
Notwithstanding
the foregoing,
an assignment to any affiliate of Prospective
Tenant,
to any
entity
with
which
or
into
which
Prospective
Tenant
may
consolidate or merge or to any entity to which
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Prospective
Tenant
may sell all or
substantially
all of its assets
shall not constitute an assignment requiring Owner's consent.
9.
No waiver of any
condition
or legal right or remedy shall be implied
by the
failure of either
party to declare a
forfeiture,
or for any
other
reason,
and no waiver of any
condition
or covenant
shall be
valid
unless
it be in
writing
signed
by
the
party
granting
or
consenting to such waiver.
10.
This
Agreement
and the
exhibits
attached
hereto set forth all the
covenants, promises, agreements, conditions and understandings
between
the parties concerning the Option Property and there are no
covenants,
promises,
agreements,
conditions or
understandings,
either oral or
written,
between
them other
than are
herein
set forth.
Except as
herein otherwise provided, no subsequent alteration, amendment,
change
or addition to this Agreement shall be binding upon the parties
unless
reduced to writing and signed by them.
11.
In the event
that any
provision
or
section
of this
Agreement
is
rendered
invalid by the decision of any court or by the
enactment of
any law,
ordinance or regulation,
such provision
shall be deemed to
have never been
included
therein and the balance
shall
continue in
effect in accordance with its terms.
12.
This Agreement and the rights and
obligations of the parties
arising
hereunder
shall be construed in accordance with the laws of the state
in which the Option Property is located.
13.
Prospective
Tenant
shall
lease
the
Option
Property
in
"as
is"
condition,
with
no
representations
or
warranties
by
Owner,
and
Prospective
Tenant
hereby
relies on its personal
inspection of the
Option Property.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS HEREOF,
Owner and Prospective Tenant have executed this Agreement as
of the date first written above.
OWNER:
/s/ Steve Dennis
------------------------------------
Dennis Grain, Inc.
PROSPECTIVE TENANT
NEDAK Ethanol, LLC
By:
/s/ Jerome Fagerland
-------------------------------
Name:
Jerome Fagerland
-------------------------------
Its:
President and General Manager
-------------------------------
STATE OF ________________
)
) ss.
COUNTY OF _______________
)
The
foregoing
instrument
was
acknowledged
before
me
on
____________________,
2006, by
_____________________,
the
__________________
(type of officer) of Dennis Grain, Inc.
________________________________________
Notary Public
My Commission expires:_____________________
STATE OF ________________
)
) ss.
COUNTY OF _______________
)
The
foregoing
instrument
was
acknowledged
before
me
on
____________________, 2006, by ______________________,
the ____________________
(type of officer) of NEDAK Ethanol, LLC.
________________________________________
Notary Public
My Commission expires:_____________________
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EXHIBIT "A"
Option Property Map
-5-
EXHIBIT "B"
Option Property Legal Description
-6-
EXHIBIT "C"
Form of Ground Lease
-7-
GROUND LEASE
THIS GROUND LEASE (this "Lease"), dated as of _____________,
200__ between
DENNIS GRAIN, INC., a Nebraska corporation
("Landlord") and NEDAK Ethanol, LLC,
a Nebraska limited liability company ("Tenant").
Preliminary Statements
Landlord is the owner in fee simple of certain land located in Holt
County,
Nebraska,
legally
described on Exhibit A, attached hereto and
incorporated by
reference herein (the "Premises").
Landlord
desires to lease the
Premises to Tenant,
and Tenant
desires to
lease
the
Premises
from
Landlord,
subject
to and in
accordance
with
the
provisions
of this Lease.
A map
illustrating
the location of the Premises is
attached hereto as Exhibit B.
Agreement
NOW,
THEREFORE,
for and in
consideration
of the
mutual
covenants
and
agreements
herein set forth,
and other good and
valuable
consideration,
the
receipt and
sufficiency of which are hereby
acknowledged by each party hereto,
Landlord and Tenant hereby agree as follows:
1.
Lease of Premises
.
Landlord hereby leases the Premises to Tenant upon
the terms and conditions contained herein.
2.
Term
. The term of this Lease (the "Term") shall be as follows:
(a)
Commencement
Date
.
The
commencement
of this Lease for
purposes of
commencement of the parties' rights and obligations hereunder shall
be
_______________, 200__ (the "Commencement Date").
(b)
Term
.
The Term of this
Lease
shall be twenty
(20)
years
from the
Commencement Date. This lease shall automatically renew for
additional
five (5) year periods
unless
Tenant gives notice of
non-renewal
to
Landlord at least three (3) months prior to expiration.
3.
Rent
.
Tenant shall pay Landlord,
at the address set forth in Section
18 below,
as annual
rental for the Premises
during the term of this Lease the
sum of
$3,000.00
(the
"Rent")
without
prior
notice or demand
therefor and
without
offset or
counterclaim.
Such sum shall be payable
within thirty (30)
days following the
Commencement
Date, and shall thereafter be payable annually
within thirty (30) days following each anniversary of the
Commencement Date.
4.
General
Intent
of
Ground
Lease
.
During
the
term of this
Lease,
Landlord shall have no responsibility
with respect to the Premises,
including,
but not limited to, the payment of any costs or expenses for the
use,
operation
or maintenance of the Premises or any
improvements
thereon.
Real estate taxes
shall paid by the Landlord.
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5.
Use
of
Premises
.
Tenant
may
only
use
the
Premises
for
the
construction,
operation and
maintenance of an ethanol
trans-loading
facility
(the "Trans-Loading Facility").
Tenant shall not use the Premises for any other
purpose without first obtaining the written approval of