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 Xxxxxx 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, Xxxx 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:
Xxxxxx Grain, Inc.
000 X. 00xx Xx.
X'Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
If to Prospective Tenant:
NEDAK Ethanol, LLC
XX Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
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]
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IN WITNESS HEREOF, Owner and Prospective Tenant have executed this Agreement as
of the date first written above.
OWNER:
/s/ Xxxxx Xxxxxx
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Xxxxxx Grain, Inc.
PROSPECTIVE TENANT
NEDAK Ethanol, LLC
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Its: President and General Manager
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STATE OF ________________ )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me on
____________________, 2006, by _____________________, the __________________
(type of officer) of Xxxxxx 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
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EXHIBIT "B"
Option Property Legal Description
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EXHIBIT "C"
Form of Ground Lease
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GROUND LEASE
THIS GROUND LEASE (this "Lease"), dated as of _____________, 200__ between
XXXXXX 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 Xxxx 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 Landlord, which may not
be unreasonably withheld. Landlord shall not be obligated to provide for or pay
for any improvement work or services related to the improvement of the Premises.
Prior to construction of the Trans-Loading Facility, Tenant shall submit
plans and/or specifications for the same to Landlord for Landlord's prior
written approval, which may not be unreasonably withheld. Tenant shall not
commence construction of the Trans-loading Facility without obtaining such prior
written approval. Tenant shall construct such Trans-loading Facility and perform
any repairs thereto in conformance with any and all applicable federal, state,
county or municipal laws, rules and regulations. All work with respect to the
Trans-loading Facility must be done in a good and workmanlike manner and
diligently prosecuted to completion.
Tenant's taking possession of the Premises or any portion thereof shall be
conclusive evidence against Tenant that the Premises was then in satisfactory
condition. No promises of the Landlord to build, alter, remodel, improve,
repair, or clean the Premises or any part thereof have been made, and no
representation respecting the condition of the Premises has been made to Tenant
by or on behalf of Landlord.
7. Access to the Premises. Tenant shall have access to the Premises on a
twenty-four (24) hours per day, seven (7) days per week basis.
8. Utilities. Tenant shall pay for all utilities provided to the
Premises. Tenant agrees that Landlord shall not be liable for damages, by
abatement of Rent or otherwise, for failure, delay, diminution or interruption
of any utilities or services for any reason, except when such delays,
diminutions or interruptions are caused by the negligence or willful misconduct
of Landlord.
9. Compliance with Law. During the term of this Lease, Tenant shall, at
Tenant's sole cost and expense, comply promptly with all applicable statutes,
laws, ordinances, regulations, and requirements in effect during the term of
this Lease applicable to the Premises and Tenant's activities and operations
thereon.
Tenant shall not use or allow another person or entity to use any part of
the Premises for the storage, use, treatment, manufacture or sale of Hazardous
Materials, as that term is defined below. Landlord acknowledges, however, that
Tenant may maintain products at the Premises which may be incidental or
necessary to the operation and maintenance of the Premises and which may be
categorized as Hazardous Materials. Landlord agrees that the use of such
products in the Premises in compliance with all laws and in the manner which
such products are designed to be used shall not be a violation by Tenant of this
Section. As used herein, Hazardous Materials mean any hazardous or toxic
substances, materials or waste, pollutants or contaminants, as defined, listed
or regulated by any federal, state or local law, regulation or order or by
common law decision. Tenant shall cause any and all Hazardous Materials
discharged or located on the Premises during the term of this Lease to be
removed and transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such materials and wastes. Tenant shall in all
respects handle, treat, deal with and manage any and all Hazardous Materials in,
on,
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under or about the Premises in total conformity with all applicable
environmental laws and prudent industry practice regarding management of such
Hazardous Materials. Upon expiration or earlier termination of the term of this
Lease, Tenant shall cause all Hazardous Materials brought to the Premises during
the term of this Lease by anyone other than Landlord or Landlord's officers,
directors, employees or agents, to be transported for use, storage or disposal
in accordance with the compliance with all applicable Hazardous Materials laws.
Tenant's obligations under this Section 9 shall include, without limitation, all
costs and work or obligations of any governmentally required or necessary
environmental investigation and cleanup of the Premises related to Tenant's use
or operation of the Premises. Landlord hereby represents and warrants that the
Premises comply with all laws, regulations and ordinances, both state and
federal, concerning Hazardous Materials as of the Commencement Date. The
provisions of this Section 9 shall survive the expiration or earlier termination
of the term of this Lease.
10. Maintenance and Repairs. Landlord shall have no obligation or
authority whatsoever to maintain or repair the Premises or any improvements
thereon. Tenant shall, at its own expense, perform all maintenance and repairs
on the Premises, including ordinary repairs and maintenance. Tenant shall at all
time keep the Premises free of trash, debris, junk, derelict vehicles and
derelict equipment, and shall keep all improvements hereafter constructed on the
Premises in good and safe condition and repair. Tenant shall not use the
Premises or permit the Premises to be used in any way that may create waste or a
nuisance, or in any way that may damage the Premises.
11. Insurance & Indemnity.
11.1 Insurance Requirements. Tenant agrees during the term hereof to
maintain public liability and other insurance with reputable insurance
companies, and shall furnish Landlord within one (1) week after Landlord's
request therefor certificates of insurance properly executed by Tenant's
insurance companies evidencing such fact. The insurance coverage to be
maintained by Tenant shall name Landlord as an additional insured and shall
include commercial general liability insurance, with blanket contractual
liability endorsement, against claims for bodily injury, death and property
damage occurring on or about the Premises, affording minimum single limit
protection of $2,000,000 with respect to personal injury or death and property
damage occurring or resulting from one occurrence.
Tenant shall also maintain worker's compensation insurance in
compliance with all applicable laws.
All such insurance required to be maintained under the first paragraph
of this Section 11.1 by Tenant shall provide that such insurance shall not be
cancelled or coverage changed unless the insurance company endeavors to give at
least thirty (30) days prior written notice to Landlord or any mortgagee of
Landlord.
Tenant agrees to have its insurance companies issuing insurance
required under the first paragraph of this Section 11.1 waive any rights of
subrogation that such companies may have against Landlord. Tenant hereby waives
any rights that it may have against Landlord on account of any loss or damage to
its property to the extent such loss or damage is required to be insured against
hereunder.
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11.2 Indemnity. Landlord shall not be responsible or liable for any damage
or injury to any property or to any person or persons at any time on the
Premises; nor shall Landlord be in any way responsible or liable for any
violation of legal requirements pertaining to the Premises during the term of
this Lease; and Tenant agrees that it will not hold Landlord in any way
responsible or liable therefor. Tenant shall indemnify and hold harmless each
Landlord Party (as hereinafter defined) against and from all liabilities
(statutory or otherwise) and any and all claims, liabilities, demands, costs and
expenses (including attorney fees and expenses) and judgments of any nature
(collectively, "Claims") by and on behalf of any person for any Claims incurred
as owner of the Premises, including, but not limited to, Claims arising from any
work or thing whatsoever done in, on and about the Premises, and shall also
indemnify and hold harmless each Landlord Party against and from any and all
Claims arising from the operation and any condition of the Premises during the
term of this Lease, or arising from any breach or default on the part of Tenant
in the performance of any covenant or agreement on the part of Tenant to be
performed pursuant to this Lease, or arising from any act or negligence of
Tenant, or of its or their agents, contractors, employees, licensees or
invitees, or arising from any accident, injury or damage whatsoever caused to
any person or property occurring during the term of this Lease in or about the
Premises, and from any spill, leak, release or deposit of any materials or
substances (including Hazardous Materials) originating from the Premises onto
property other than the Premises. In the event any action or proceeding is
brought against a Landlord Party by reason of any such Claim, Tenant shall pay
all expenses incurred by such Landlord Party in defending such action or
proceeding, including, but not limited to, reasonable attorneys' fees. The
foregoing indemnification of each Landlord Party shall not apply to the extent
that any damage or loss is caused by the negligence (other than arising from
Landlord's failure to take any act with respect to the Premises), recklessness
or intentional actions or inactions causing damage or injury, unlawful or
wrongful act of a Landlord Party or any of their respective agents, employees or
invitees, except where the alleged negligence, recklessness or intentional
action or inaction causing damage or injury, unlawful or wrongful act of
Landlord arose out of a condition on or at the Premises which was Tenant's
obligation to prevent or remedy in the first instance. The parties acknowledge
that the relationship between Landlord and Tenant is solely as Landlord and
Tenant and that Landlord and Tenant shall in no event be deemed to be an agent,
partner or affiliate of each other in connection with the activities conducted
by Tenant at the Premises or otherwise, except as otherwise expressly provided
herein. For purposes hereof, the term "Landlord Party" means, collectively,
Landlord and Landlord's members, shareholders and their respective affiliates
and the directors, officers, agents, employees, licensees and invitees of any of
the foregoing.
12. Surrender. On the last day of the term of this Lease, Tenant shall
surrender the Premises to Landlord in good order and condition, provided that
Tenant shall be permitted a reasonable time, which shall not exceed
______________ (___) days, to remove any and all of any fixtures or other
improvements (including, but not limited to, the Trans-loading Facility) from
the Premises. If Tenant holds over after the expiration of the Lease Term
hereof, with or without the express or implied consent of Landlord, such tenancy
shall be from month-to-month only, and shall not constitute a renewal hereof or
an extension for any further term. Nothing contained in this Section 12 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises to Landlord as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this Section 12 shall not be deemed
to limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law.
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13. Eminent Domain. If any part of the Premises shall be taken by any
public authority under the power of eminent domain, then this Lease shall
terminate as to the part of the Premises taken upon the date of taking by such
public authority. Tenant hereby appoints Landlord as Tenant's agent for the
purpose of handling or contesting eminent domain proceedings. Tenant shall have
no right to receive any portion of any condemnation award made for the Premises
and any improvements thereon (including the value of any leasehold interest). In
the event the Premises or any part thereof is subject to a taking by eminent
domain, the Landlord shall pay for all moves, deconstruction, and reinstallation
costs to the Tenant for such taking.
14. Default by Tenant; Remedies.
14.1 Defaults. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, where such failure shall
continue for a period of one (1) month after written notice thereof
from Landlord to Tenant.
(c) The failure by Tenant to timely observe or perform any of the terms,
covenants, conditions or provisions of this Lease to be observed or
performed by Tenant, other than described in paragraph (b) above,
where such failure shall continue for a period of one (1) month after
written notice thereof from Landlord to Tenant.
(d) (i) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; (ii) the filing by or
against Tenant of a petition to have Tenant adjudged bankrupt or a
petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within two (2) months); (iii) the appointment of
a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in
this Lease, where possession is not restored to Tenant within one (1)
month or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged
within one (1) month.
14.2 Remedies. In the event of any such default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any other right or remedy which
Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such
event Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default including, but not
limited to, the cost of recovering possession of the Premises;
expenses of reletting, including necessary renovation and alteration
of the Premises,
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reasonable attorney's fees, and any real estate commission actually
incurred; and the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount of
such rental loss for the same period that Tenant proves could be
reasonably avoided. Unpaid installments of rent or other moneys due
Landlord under this Lease shall bear interest from the date due at the
rate of 12% (or the maximum amount or interest allowed under state
law) per annum. In the event Tenant shall have abandoned the Premises,
Landlord shall have the option of (i) retaking possession of the
Premises and recovering from Tenant the amount specified in this
Section 14.2(a), or (ii) proceeding under Section 14.2(b).
(b) Maintain Tenant's right to possession in which case this Lease
shall continue in effect whether or not Tenant shall have
abandoned the Premises. In such event Landlord shall be
entitled to enforce all of Landlord's rights and remedies
under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Cure Tenant's default, in which case any costs incurred by
Landlord in effecting a partial or complete cure shall be
immediately due and payable by Tenant as additional rent, and
shall bear interest until paid at the rate provided in Section
14.2(a), above.
(d) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the State of Nebraska.
14.3 Cumulative Remedies; Waiver. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy on account of the violation of such
provision, even if such violation shall continue or be repeated subsequently.
Any waiver by Landlord of any provision of this Lease may only be in writing.
Additionally, no express waiver shall affect any provision other than the one
specified in such waiver and then only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
14.4 Tenant's Reimbursement. Tenant shall pay to Landlord, within thirty
(30) days after delivery by Landlord to Tenant of statements therefor: (i) sums
equal to expenditures reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant's defaults pursuant to the
provisions of the this Lease; and in addition, if not paid within thirty (30)
days of such demand, Tenant shall pay Landlord, upon demand, interest at twelve
percent 12% (or the maximum amount of interest allowed under the laws of the
state); and (ii) sums equal to all expenditures made and obligations incurred by
Landlord in collecting
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or attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law following any Event of
Default by Tenant for which any applicable notice and cure period has expired,
including, without limitation, all reasonable legal fees and other amounts so
expended, in the event Tenant defaults in such payment, Landlord shall have all
remedies provided in this Lease. Tenant's obligations under this Section shall
survive the expiration or sooner termination of the Term.
15. Subletting and Assignment. Tenant may not transfer, mortgage or assign
this Lease or any of Tenant's rights, obligations and interests hereunder, or
sublet all or any portion of the Premises, without Landlord's prior written
consent, which may not be unreasonably withheld. Notwithstanding the foregoing,
an assignment to any affiliate of Tenant, to any entity with which or into which
Tenant may consolidate or merge or to any entity to which may sell all or
substantially all of its assets shall not constitute an assignment under this
Lease requiring Landlord's consent.
16. Estoppel Certificate. Tenant shall at any time upon not less than ten
(10) days prior written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing (i) certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises. Tenant's
failure to timely deliver such statement within such time shall be conclusive
upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rent has been paid in advance.
17. Binding Effect; Choice of Law Subject to any provisions hereof, this
Lease shall bind the parties, their personal representatives, successors and
assigns. This Lease shall be governed by the laws of the State of Nebraska.
18. Notices. All notices under this Lease must be in writing and sent
prepaid same day or next day private courier or by hand delivery or by United
States certified mail, return receipt requested, addressed as follows, except
that any party may by written notice given as aforesaid change its address for
subsequent notices to be given hereunder:
To Landlord: Xxxxxx Grain, Inc.
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Attn:
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To Tenant: NEDAK Ethanol, LLC
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Attn:
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.
19. Recording Lease or Memorandum of Lease. Tenant may not record this
Lease or a memorandum thereof.
20. Subordination. This Lease, at Landlord's option, shall be subordinate
to any ground lease, mortgage, deed of trust, or any other hypothecation for
security now or hereafter placed upon the real property of which the Premises
are a part and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof. If
any mortgagee, trustee or ground Landlord shall elect to have this Lease prior
to the lien of its mortgage, deed of trust or ground lease, and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust, or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust or ground lease or the
date of recording thereof. Tenant agrees to execute any documents required to
effectuate such subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be, and failing to do
so within ten (10) days after written demand, does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney in fact and in Tenant's name,
place and stead, to do so.
21. "As-Is". Tenant acknowledges and agrees that, except as expressly set
forth in this Lease, neither Landlord, nor any agent or representative of
Landlord has made, and Landlord is not liable or responsible for or bound in any
manner by, any express or implied representations, warranties, covenants,
agreements, obligations, guarantees, statements, information or inducements
pertaining to the Premises or any part thereof, title to the Premises, the
physical condition thereof, the fitness and quality thereof, the value and
profitability thereof, or any other matter or thing whatsoever with respect
thereto. Tenant acknowledges, agrees, represents and warrants that it has had
access to the Premises and such other information and data relating to all of
same as Tenant has considered necessary, prudent, appropriate or desirable for
the purposes of this transaction and, without limiting the foregoing, that
Tenant and its agents and representatives have independently inspected,
examined, investigated, analyzed and appraised all of same. Without limiting the
foregoing, Tenant acknowledges and agrees that, except as expressly set forth in
this Lease, neither Landlord nor any director, officer, employee, agent or
representative of Landlord is liable or responsible for or bound in any manner
by (and Tenant has not relied upon) any oral or written or supplied
representations, warranties, covenants, agreements, obligations, guarantees,
statements, information or inducements pertaining to the premises or any part
thereof, and any other information respecting same furnished by or obtained from
Landlord or any agent or representative of Landlord. Tenant acknowledges and
agrees that, except as otherwise provided in this Lease, Tenant is leasing the
Premises, "AS IS".
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22. Counterparts. This Lease may be executed and delivered in one or more
counterparts, each of which when fully executed and delivered shall constitute
an original, fully enforceable agreement.
23. Successors and Assigns. The terms, covenants and conditions herein
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto and shall run with the land.
24. Authority. Each party hereto represents and warrants that the person
executing this Lease on behalf of such party has due and proper authority to
execute and deliver the same.
25. Covenant Against Liens. Tenant has no authority or power to cause or
permit any lien or encumbrance of any kind whatsoever, whether created by act of
Tenant, operation of law or otherwise, to attach to or be placed upon the
Premises. Tenant acknowledges that the filing of any lien by Tenant's contractor
on the Premises could have the effect of placing Landlord in default of its loan
agreements. Notice is hereby given that Landlord shall not be liable for any
work or materials furnished to Tenant on credit and that no mechanic's or other
lien for any such work or materials shall attach to or affect Landlord's
interest in the Premises based on any work or material supplied to Tenant or
anybody claiming through Tenant. Landlord shall have the right at all times to
post and keep posted on the Premises any notice which it deems necessary for
protection from such liens. Tenant covenants and agrees not to suffer or permit
any lien of mechanics or materialmen or others to be placed against the
Premises, or any portion thereof, with respect to work or services claimed to
have been performed for or materials claimed to have been furnished to Tenant or
the Premises, and, in case of any such lien attaching or notice of any lien,
Tenant covenants and agrees to cause it to be promptly released and removed of
record. If any such lien or a notice of intent to file a lien be filed, Tenant
shall discharge such lien within twenty (20) days; provided, that if Tenant
shall in good faith desire to contest the validity of any such lien, it may do
so by an appropriate proceeding after first posting a bond sufficient to cover
such lien and acceptable to Landlord's title company, and thereby remove same as
a cloud to Landlord's title. Tenant hereby acknowledges its failure to discharge
or "bond over" such a lien will cause Landlord to incur various expenses not
contemplated by this Lease causing undue expense, the exact amount of which are
presently difficult to ascertain. Should Tenant fail to pay or "bond over" said
liens within the aforementioned ten days, Landlord may (but shall not be
obligated to) "bond over" such lien or actually pay the lien claimant obtaining
a release of said lien, and Tenant shall, upon demand, reimburse Landlord for
the amount so paid, including all reasonable attorneys fees incurred by
Landlord. The failure to discharge any such lien within the applicable periods
shall be deemed a default under this Lease. Nothing in this Lease shall be
construed as in any way constituting a consent or request by Landlord, expressed
or implied, by inference or otherwise, to any contractor, subcontractor, laborer
or materialman for the performance of any labor or the furnishing of any
materials for any specific or general improvement, alteration, or repair of or
to the Premises or to any buildings or Improvements thereon, or to any part
thereof, Tenant agreeing that Landlord has not in any way exercised control over
Tenant's contractor.
26. Brokers. Landlord and Tenant warrant that there are no claims for
broker's commission or finder's fees in connection with its execution of this
Lease. Each party warrants to the other that neither party has submitted this
transaction to any broker or finder.
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Each party agrees to indemnify, defend and save the other harmless from any
liability that may arise from such claims, including reasonable attorney fees
asserted by any other broker claiming to have been engaged by the indemnifying
party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first written above.
LANDLORD:
XXXXXX GRAIN, INC.
By: _________________________
Name: _________________________
Its: _________________________
TENANT:
NEDAK ETHANOL, LLC
By: __________________________
Name: __________________________
Its: __________________________
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EXHIBIT A TO GROUND LEASE
Legal Description of Premises
A tract of land located in the Southwest Quarter of the Southwest Quarter
of Xxxxxxx 00, Xxxxxxxx 00, Xxxxx, Xxxxx 00, Xxxx of the 6th P.M., Xxxx County,
Nebraska, more particularly described as follows: Beginning at the south 1/16
corner common to Sections 29 and 30, Township 29 North, Rage 00, Xxxx xx xxx 0xx
X.X., Xxxx Xxxxxx, Xxxxxxxx; thence 89(degree)26'05" East (an assumed bearing)
604.54 feet on the North line of the Southwest Quarter of said Section 29 to the
West right of way line of wye tracks #3 and #4 of the Burlington Northern
Railroad Company; thence South 18(degree)19'14" West, 288.39 feet on the West
right of way line of said wye tracks #3 and #4 to the beginning of a curve #3
concave to the Northwest having a radius of 516.79 feet; thence Southwesterly
154.37 feet along said curve #3 the chord of said curve bears South
23(degree)19'35" West, 153.80 feet; thence North 89(degree)47'51" West, 452.96
feet to a point on the West line of said Section 29; thence North
0(degree)00'00" East 419.36 feet to the point of beginning.
A tract of land located in the Southwest Quarter of the Southwest Quarter
of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the 6th P.M., Xxxx County,
Nebraska, more particularly described as follows: Beginning at the Southwest
Quarter of Section 29, Township 29 North, Range 00, Xxxx xx xxx 0xx X.X., Xxxx
Xxxxxx, Xxxxxxxx; thence North on the West line of said Section 29, said line
having as an assumed bearing of North 0(degree)00'00" East, 385.04 feet; thence
South 79(degree)57'58" East 425.42 feet; thence North 0(degree)02'00" West
155.51 feet to the South right of way line of spur track #5 of the Burlington
Northern Railroad Company; thence South 71(degree)38'06" East, 939.08 feet on
the Southerly right of way line of said Railroad Company to the East line of the
Southwest Quarter of the Southwest Quarter of said Section 29; thence South
0(degree)28'45" West, 182.69 feet on the East line of the Southwest Quarter of
the Southwest Quarter of said Section 29; thence North 89(degree)28'19" West,
1308.96 feet on the South line of said Section 29 to the point of beginning.
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EXHIBIT B TO GROUND LEASE
Map of Premises
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