THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT
LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING
CONTRACT TO BUY AND SELL REAL ESTATE
AGRICULTURAL
DECEMBER 21, 2001
Date
PARTIES AND PROPERTY
1. Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, wife and husband and Xxxxx X.
Xxxxxx, Trustee of the Xxxxx X. Xxxxxx Trust, U/T/A dated January 20, 1999,
Sellers (Seller), agree to sell to Western Plains Energy, L.L.C., a Kansas
Limited Liability Company, with its principal place of business located in Xxxx
County, Kansas, as Buyer (Buyer) and Xxxxx agrees to purchase, on the terms and
conditions set forth in this Contract, the following described real estate in
the County of Xxxx, State of Kansas, to-wit:
A TRACT OF LAND LOCATED IN THE SOUTH HALF (S1/2) OF SECTION ONE (S01),
TOWNSHIP ELEVEN SOUTH (T11S), RANGE THIRTY-ONE WEST (R31W) OF THE SIXTH
PRINCIPAL MERIDIAN (6TH P.M.), IN XXXX COUNTY, KANSAS, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION, THENCE, ON AN ASSUMED
BEARING OF N00(0)18'21"W, ALONG THE WEST LINE OF SAID SECTION, A DISTANCE
OF ONE THOUSAND EIGHT HUNDRED SEVENTY-FIVE AND FIFTY-FIVE HUNDREDTHS
(1875.55) FEET TO THE SOUTH RIGHT-OF-WAY BOUNDARY OF THE UNION PACIFIC
RAILROAD, THENCE N88(0)48'41"E, ALONG SAID RAILROAD RIGHT-OF-WAY, FOR A
DISTANCE OF TWO HUNDRED NINETY-NINE AND EIGHTY-THREE HUNDREDTHS (299.83)
FEET, THENCE EAST-NORTHEASTERLY, ALONG SAID RAILROAD RIGHT-OF-WAY, ON A
CIRCULAR CURVE TO THE LEFT (ARC ANGLE = 01(0)16'41" LT; RADIUS = 17304.17
FT.; LONG CHORD BEARING = N88(0)11'07"E), FOR A DISTANCE OF THREE HUNDRED
EIGHTY-FIVE AND NINETY-NINE HUNDREDTHS (385.99) FEET, THENCE
N87(0)32'00"E, ALONG SAID RIGHT-OF-WAY, FOR A DISTANCE OF TWO THOUSAND
FOUR HUNDRED TWELVE AND EIGHTY-THREE HUNDREDTHS (2412.83) FEET, THENCE
S00(0)08'11"E FOR A DISTANCE OF ONE THOUSAND NINE HUNDRED NINETY-SEVEN AND
SEVENTY-FIVE HUNDREDTHS (1997.75) FEET TO THE SOUTH LINE OF SAID SECTION,
THENCE S89(0)59'55"W, ALONG THE SOUTH LINE OF SAID SECTION, FOR A DISTANCE
OF THREE THOUSAND NINETY AND NINETY HUNDREDTHS (3090.90) FEET TO THE POINT
OF BEGINNING CONTAINING 137.21 ACRES, SAID TRACT BEING SUBJECT TO COUNTY
ROAD RIGHT-OF-WAY ALONG ITS WEST AND SOUTH BOUNDARIES.
Together with all water and mineral rights, easements and right-a-ways
appurtenances thereto, all improvements thereon and all fixtures of a permanent
nature currently on the property, in their present condition, ordinary wear and
tear accepted, and hereinafter called the property.
PURCHASE PRICE AND TERMS
2. The purchase price shall be One Hundred Seventy Eight Thousand
Three Hundred Seventy Three Dollars ($178,373.00) payable by the Buyer as
follows:
(a) XXXXXXX MONEY. Seventeen Thousand Eight Hundred Thirty-seven Dollars
and Thirty Cents ($17,837.30) in the form of check, as xxxxxxx money
deposit and partial payment of the purchase price, payable to and to be
held by Farmers State Bank, Oakley, Kansas, (The Escrow Agent) it its
trust account on behalf of both Seller and Buyer. The Escrow Agent is
hereby authorized to deliver the xxxxxxx money deposit to the closing
agent, if any, at or before closing.
(b) CASH AT CLOSING. The balance of One Hundred Sixty Thousand Five
Hundred Thirty Five Dollars and Seventy Cents ($160,535.70) (purchase
price less xxxxxxx money) shall be paid by Buyer at closing in funds which
comply with all applicable Kansas law, which includes cash, electronic
transfer funds, certified check, savings and loan tellers check and
cashiers check (good funds).
(c) ASSIGNMENT OF RAILROAD LEASE. As further consideration of the mutual
promises and covenants of this agreement, at closing, Seller shall assign,
transfer and set over unto Buyer by proper instruments of assignment and
transfer the entire interest, free and clear of any liens and/or
encumbrances, those leases of Seller as lessee in and to certain railroad
right-of-way leases and/or industrial tract agreements with Union Pacific
Railroad Company, lease audit number 190319 covering the following
described property, to-wit:
A TRACT OF LAND LOCATED IN THE SOUTH HALF (S1/2) OF SECTION ONE
(S01), TOWNSHIP ELEVEN SOUTH (T11S), RANGE THIRTY-ONE WEST (R31W) OF
THE SIXTH PRINCIPAL MERIDIAN (6TH P.M.) IN XXXX COUNTY, KANSAS, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION, THENCE, ON AN
ASSUMED BEARING OF N00(0)18'21"W, ALONG THE WEST LINE OF SAID
SECTION, A DISTANCE OF ONE THOUSAND EIGHT HUNDRED SEVENTY FIVE AND
FIFTY-FIVE HUNDREDTHS (1875.55) FEET TO THE POINT OF BEGINNING, SAID
POINT OF BEGINNING LOCATED ON THE SOUTH RIGHT-OF-WAY OF THE UNION
PACIFIC RAILROAD.
FROM THE POINT OF BEGINNING, THENCE N00(0)18'21"W, ALONG THE WEST
LINE OF SAID SECTION, FOR A DISTANCE OF ONE HUNDRED FIFTY AND TWO
HUNDREDTHS (150.02) FEET, THENCE N88(0)48'41"E FOR A DISTANCE OF TWO
HUNDRED NINETY-SEVEN AND FIFTY-FIVE HUNDREDTHS (297.55) FEET, THENCE
EAST-NORTHEASTERLY, ON A CIRCULAR CURVE TO THE LEFT
(ARC ANGLE = 01(0)16'41"LT; RADIUS = 17154.17 FT.; LONG CHORD BEARING
= N88(0)11'07E) FOR A DISTANCE OF THREE HUNDRED EIGHTY-TWO AND
SIXTY-FIVE HUNDREDTHS (382.65) FEET, THENCE N87(0)32'00"E FOR A
DISTANCE OF TWO THOUSAND FOUR HUNDRED EIGHTEEN AND NINETY HUNDREDTHS
(2418.90) FEET, THENCE S00(0)08'11"E FOR A DISTANCE OF ONE HUNDRED
FIFTY AND TWELVE HUNDREDTHS (150.12) FEET TO THE SOUTH RIGHT-OF-WAY
BOUNDARY OF SAID RAILROAD, THENCE S87(0)32'00"W, ALONG SAID RAILROAD
RIGHT-OF-WAY, FOR A DISTANCE OF TWO THOUSAND FOUR HUNDRED TWELVE AND
EIGHTY-THREE HUNDREDTHS (2412.83) FEET, THENCE WEST-NORTHWESTERLY,
ALONG SAID RAILROAD RIGHT-OF-WAY, ON A CIRCULAR CURVE TO THE RIGHT
(ARC ANGLE = 01(0)16'41"W; RADIUS = 17304.17FT.; LONG CHORD BEARING
= S88(0)11'07"W), FOR A DISTANCE OF THREE HUNDRED EIGHTY-FIVE AND
NINETY-NINE HUNDREDTHS (385.99) FEET, THENCE S88(0)48'41"W FOR A
DISTANCE OF TWO HUNDRED NINETY-NINE AND EIGHTY-THREE HUNDREDTHS
(299.83) FEET TO THE POINT OF BEGINNING, CONTAINING 10.66 ACRES,
SAID TRACT BEING SUBJECT TO COUNTY ROAD RIGHT-OF-WAY ALONG ITS WEST
BOUNDARY.
XXXXXX AND DISMISSAL OF WATER RIGHTS
3. [Omitted per agreement of the parties dated February 15, 2002.]
EVIDENCE OF TITLE
4. Seller shall furnish to Buyer a current commitment for owners Title
Insurance Policy in an amount equal to the purchase price (title documents), on
or before February 1, 2002, (title deadline). The cost of said title insurance
will be paid by the Seller. Upon receipt of the commitment or abstract, Xxxxx
shall examine said commitment and shall notify Seller within Ten (10) days, in
writing, of any defects which prevent title from being satisfactory to Buyer,
herein referred to as "Title Defects". Seller shall have until the closing date
to cure Title defects for which notification is given. If Title Defects cannot
be cured by closing date, Buyer may grant an extension of time to Seller during
which Seller shall use reasonable, good faith efforts to cure the Title Defects,
unless Buyer, in its sole discretion, waives the Title Defects by written notice
of same to Seller. Seller's failure to cure such Title Defects within the
extension period shall result in the termination of this Contract. The premium
will be paid at closing and the title insurance policy will be delivered to
Buyer as soon as practical after closing. The Buyer shall be responsible for the
payment of any premium on any mortgage insurance policy.
COST OF APPRAISAL
5. The cost of any appraisal for loan purposes to be obtained after
this date shall be paid by Xxxxx.
INSPECTION
6. Buyer, or any designee, shall have the right to have inspection of the
physical condition of the property at Buyer's expense. If written notice of any
unsatisfactory condition, prepared by or on behalf of the Buyer, is not received
by Seller on or before January 15, 2002, (objection deadline), the physical
condition of the property and any exclusions shall be deemed to be satisfactory
to Buyer. If such notice is received by Seller as set forth above, and if Buyer
and Seller have not agreed, in writing, to a settlement thereof on or before
February 1, 2002, (resolution deadline), this Contract shall terminate three (3)
days following the resolution deadline; unless, within the three (3) calendar
days, Seller receives written notice from Buyer waiving objection to any
unsatisfactory condition. Buyer is responsible for and to pay any damage which
occurs to property as a result of such inspection.
DATE OF CLOSING
7. The date of closing shall be March 1, 2002, or by mutual agreement at
an earlier date. If closing does not occur by March 1, 2002, then unless an
extension is agreed to by and between the parties, this Contract shall
terminate.
TRANSFER OF TITLE
8. Subject to payment at closing as required herein and compliance by
Buyer with the other terms and provisions hereof, Seller shall execute and
deliver a good and sufficient General Warranty Deed and Trustee's Deed to Buyer,
on closing, conveying the property free and clear of all taxes except the
general taxes for the year of closing. Title shall be conveyed free and clear of
all liens and encumbrances except those that are reflected by the title
documents accepted by Xxxxx as hereinbefore provided and those rights, if any,
of third parties in possession of the property not shown by public records.
PAYMENT OF ENCUMBRANCES
9. Any encumbrance required to be paid shall be paid at or before closing
from the proceeds of this transaction or from other sources.
DUTIES OF ESCROW AGENT
10. The escrow agent for the purposes of this Contract shall be Farmers
State Bank, Oakley, Kansas. The escrow agent shall hold the Warranty Deed and
Trustee's Deed provided for herein and a fully executed copy of the contract
until time of closing unless otherwise instructed by both Xxxxxx and Buyer. All
payments shall be made directly to the escrow agent who shall then deposit each
payment to the trust account of the escrow agent. Upon closing of the Contract,
escrow agent shall pay the amounts received by it, less expenses of closing, to
Seller. All escrow charges shall be paid one-half (1/2) by Xxxxxxx and one-half
(1/2) by Xxxxx. Escrow charges shall be Two Hundred Dollars ($200.00). Upon full
compliance with the terms
and conditions of this Contract and payments required hereunder, the escrow
agent shall deliver the Warranty Deed and Xxxxxxx's Deed provided herein to
Buyer. Escrow agent will be responsible for doing all reporting for the sale
to the Internal Revenue Service including the filing of 1099s, 1096s and
other required reports.
PRORATIONS
11. Real estate taxes for 2001 and all prior years shall be paid by the
Seller with Xxxxx, being responsible for the payment of taxes for 2002.
LEASEBACK TO XXXXXX X. XXXXXXX
12. In consideration of the mutual promises, covenants and payments
hereinbefore set out, upon closing of this agreement, Buyer shall lease the
property subject to this agreement back to Xxxxxx X. Xxxxxxx ("Madison")
pursuant to the terms and conditions as will be set forth in a separate
agreement.
FIRST RIGHT OF REFUSAL
13. In the event that Xxxxx would sell or otherwise convey fee simple
title of the property hereinbefore described in paragraph 1 within fifteen (15)
years of the closing of this agreement, then in consideration of the mutual
promises, covenants and payments herein before setout, Seller shall have the
first right of refusal to repurchase the property for the consideration and for
the amount an offer to purchase the property received by the Buyer from a third
party. A sixty (60) day written notice of the offer and the right of the Seller
to exercise its first right of refusal shall be given by the Buyer to the
Seller.
POSSESSION
14. Possession of the property shall be granted to the Buyer upon closing
unless said property is subject to a prior existing lease or tenancy
arrangement.
INSURANCE
15. Upon closing, Seller shall be entitled to cancel any and all existing
insurance on the above described real estate and shall be entitled to any and
all refunds arising from cancellation of insurance. After closing, Buyer shall
be responsible for all insurance and for all risk of loss to the above described
real estate.
ALTERNATIVE DISPUTE RESOLUTION; MEDIATION
16. If a dispute arises relating to this Contract, and is not resolved,
the parties involved in such dispute (Disputants) shall first proceed in good
faith to submit the matter to mediation. The Disputants will jointly appoint an
acceptable mediator and will share equally in the cost of such mediation. In the
event the entire dispute is not resolved within thirty (30) calendar days from
the date written notice requesting mediation is sent by one (1) disputant to the
other, the mediation, unless otherwise agreed, shall terminate. This section
shall not alter any date in this Contract, unless otherwise agreed.
FORCE MAJEURE
17. The parties understand and agree that neither the Seller or the Buyer
shall be liable to the other for any failure or delay in performance of any
obligation under this agreement due to events beyond their reasonable control,
including fire, storm, flood, earthquake, explosion, acts of public enemy, war,
acts of God, or acts or regulations or priorities of Federal, State or local
government.
RELATIONSHIP OF THE PARTIES
18. By execution of this agreement, the parties intend to create no other
relationship other than as set forth in this agreement. Specifically, there is
no agency, partnership, joint venture or other joint or mutual enterprise or
undertaking created hereby. Nothing contained within this agreement authorizes
one party to act for or on behalf of the other and neither party is entitled to
any commissions or other considerations other than as is set forth specifically
herein.
ASSIGNMENT
19. It is understood and agreed by and between the parties that neither
party may assign their rights under this agreement without first obtaining the
written approval of the other party. Said approval shall not be unreasonably
withheld.
ADDITIONAL PROVISIONS
20. Seller and Xxxxx understand and agree that each party will be
responsible for the payment of their own attorneys fees and that the Seller
shall be responsible for the drawing of all deeds and any affidavits of
trustees.
TERMINATION
21. In the event this Contract is terminated, all payments and things of
value received hereunder be returned and the parties shall be relieved of all
obligations hereunder.
TIME OF ESSENCE/REMEDIES
22. Time is of the essence hereof. If any note or check received as
xxxxxxx money hereunder or any other payment due hereunder is not paid, honored
or tendered when due, or if any other obligation is not performed or waived as
herein provided, there shall be the following remedies;
(a) IF BUYER IS IN DEFAULT: Seller may elect to treat this Contract as
cancelled, in which case all payments and things of value received
hereunder shall be forfeited and retained on behalf of Seller, and Seller
may recover such damages as may be proper, or Sellers may elect to treat
this Contract as being in full force and effect and Seller shall have the
right to specific performance or damages, or both.
(b) IF SELLER IS IN DEFAULT: Buyer may elect to treat this Contract as
cancelled, in which case all payments and things value received hereunder
shall be returned and Buyer may recover such damages as may be proper, or
Buyer may elect to treat this Contract as being in full force and effect
and Buyer shall have the right to specific performance or damages, or
both.
(c) ATTORNEYS FEES, COSTS AND EXPENSES: Anything to the contrary
notwithstanding, in the event of any arbitration or litigation arising out
of this Contract, the arbitrator or court shall award to the prevailing
party all reasonable costs and expenses, including attorneys fees.
XXXXXXX MONEY DISPUTE
23. Notwithstanding any termination of this Contract, Buyer and Seller
agree that, in the event of any controversy regarding the xxxxxxx money and
things of value held by the escrow agent, unless mutual written instructions are
received by the holder of the xxxxxxx money and the things of value, escrow
agent shall not be required to take any action, but may await any proceeding, or
at the escrow agent's option and sole discretion, may interplead all parties and
deposit any moneys or things of value into a court of competent jurisdiction and
shall recover court costs and reasonable attorneys fees.
NOTICE TO BUYER
24. Any notice to Buyer shall be effective when received by Xxxxx.
NOTICE TO SELLER AND/OR MADISON
25. Any notice to Seller and/or Xxxxxxx shall be effective when
received by Seller and/or Madison.
MODIFICATION OF CONTRACT
26. No subsequent modification of any of the terms of this Contract shall
be valid, binding upon the parties, or enforceable unless made in writing and
signed by the parties.
ENTIRE AGREEMENT
27. This Contract constitutes the entire contract and agreement between
the parties relating to the subject hereof and any prior agreements pertaining
thereto, whether oral or written, have been merged and integrated into this
Contract.
GOVERNING LAW
28. This Contract shall be subject to and governed by the law of the State
of Kansas, irrespective of the fact that one or both of the parties is now or
may hereinafter become a resident of a state other than Kansas.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, Seller Xxxxxxx X. Xxxxxxx, Seller
Date of Signature 12-21-2001
----------
Address and Social Security Number: Xxxxxx X. Xxxxxxx
0000 Xxxxxxx 00
Xxxxxx, XX 00000
SSN: ________________________
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx,
Trustee of the Xxxxx X. Xxxxxx Trust,
U/T/A dated January 20, 1999, Seller
Date of Signature 12-21-2001
----------
Address and Social Security Number Xxxxx X. Xxxxxx Trust U/T/A
January 20, 1999
Xxxxx X. Xxxxxx, Trustee
0000 Xxxxxx Xxxx X
Xxxx, XX 00000
SSN or TIN ______________________________
WESTERN PLAINS ENERGY, L.L.C.
BY: /s/ Xxxx Xxxxxxxx
----------------------------
Title: CFO
Date of Signature 12-21-2001
----------
Address and Tax Identification Number: 000 Xxxx
Xxxxxxx, XX 00000
REAL ESTATE LEASE TO XXXXXX X. XXXXXXX
Western Plains Energy LLC agrees to lease. A TRACT OF LAND LOCATED IN THE
SOUTH HALF (S1/2) OF SECTION ONE (SO1), TOWNSHIP ELEVEN SOUTH (T11S),
RANGE THIRTY-ONE WEST (R31W) OF THE SIXTH PRINCIPAL MERIDIAN (6TH P.M.),
IN XXXX COUNTY, KANSAS, CONTAINING 137 ACRES.
to Xxxxxx X. Xxxxxxx for a five (5) year period commencing on March 1, 2002, and
ending on February 28, 2007 at the cash rental amount of One Hundred Dollars
($100.00) per acre per year for the irrigated acres Fifty Dollars ($50.00) for
all flood irrigated and Thirty-five Dollars ($35.00) per acre per year for the
dry land acres. The parties agree that the pivot irrigated acres on both the
property being conveyed and the railroad lease presently are 72 acres with the
balance of 63 acres being dry land or flood irrigated. The cash rent shall be
due in advance on or before the 1st day of March of each year during the term of
this leaseback and any extension thereof.
It is expressly understood and agreed by and between the parties that
Western Plains Energy LLC intends to utilize the water and water rights being
secured by this agreement in the operation of an ethanol plant that Buyer
intends to construct, and further that Buyer may apply to the Kansas Department
of Agriculture, Division of Water Resources, for a change of type of use of the
water appropriated pursuant to water right file number 14027 from irrigation use
to industrial use. Upon approval of the change of type of use and Buyer's
utilization of the water in the operation of Buyer's ethanol plant, the
availability of water for irrigation use on the property subject to the
leaseback may be dramatically reduced, if not eliminated, with the result being
that the leaseback to Madison will consist of dry land acreage. Western Plains
Energy will not stop the flow of water to lessee's growing crops, without being
liable for such. In the interim, Xxxxxxx agrees to pump the xxxxx located on the
subject property and to apply the pumped water to the extent necessary to
maintain the water appropriation rights on water right file 14027 at current
levels and further to prepare and file the appropriate water use reports and
other information as required by the Kansas Department of Agriculture, Division
of Water Resources.
During the term of the leaseback, and any extension thereof, Xxxxxxx shall
be entitled to all payment by virtue of Xxxxxxx's participation in government
crop production programs. Additionally, Xxxxxxx agrees to perform normal
maintenance on the pumps, gear heads, engines and irrigation pivot system
("improvements") presently located on the property and to be responsible to
provide all labor for said maintenance. Western Plains Energy LLC shall be
responsible for repairs on the improvements and to maintain insurance on the
pivot system.
At the expiration of the initial five (5) year term of the leaseback, the
term shall automatically renew for successive one (1) year terms unless either
party (Buyer or Madison) shall give ninety (90) days written notice to the other
of their intent not to renew this leaseback agreement.
Signed: /s/ Xxxxxx X. Xxxxxxx Date: 2-15-02
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Xxxxxx X. Xxxxxxx
Signed: /s/ Xxxx Xxxxxxxx Date: 2-15-02
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