Exhibit 10.4
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
REAL ESTATE PURCHASE AND SALE AGREEMENT
Staubach Global Services
0000 Xxxxxxxxx Xxxxxx X., Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
JANUARY 14, 2004
BUYER'S OFFER
1. The undersigned, hereinafter called "Buyer", offers to purchase from The
Burlington Northern and Santa Fe Railway Company herein after called "Seller",
all of Seller's right, title and interest in and to that parcel of land situated
in or near the City of Richardton, County of Xxxxx and State of North Dakota,
shown hatched black on map marked Exhibits "A" and "A-l", dated December 5,
2003, attached hereto and made a part hereof (said parcel of land being
hereinafter called "the Property") at the price and upon the terms and
conditions as follows.
PURCHASE PRICE AND PAYMENT
2. Seller may approve or disapprove this Agreement for any reason whatsoever, in
Seller's sole and absolute discretion, whether reasonable or unreasonable or
whether arbitrary or capricious, subject to the approval of this Agreement by
Seller, Buyer agrees to pay to Seller the purchase price of $14,650.00 for
Property, of which the amount of $14,650.00 (full amount) hereinafter called the
"deposit", is paid to Seller, or Seller's assignee, to be applied on the
purchase price. Said deposit check shall be forwarded to Staubach Global
Services, Inc., at 0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxx
00000, and then forwarded to the Seller's account. Said deposit check should be
made payable to XX XXXXXX XXXXX BANK/ESCROW AGENT/APEX. Said deposit shall be
refunded to Buyer if this offer is not accepted by Seller within forty five (45)
days from the date of said offer. Delivery of Seller's deed shall be made from
Seller's above stated office.
[SEAL]
WHEN RECORDED MAIL TO
Hardy Law Firm
Xxx 000
Xxxxxxxxx XX 00000
Xxxxx Xxxxxxx, Recorder
[BARCODE]
QUITCLAIM DEED
KNOW ALL, MEN BY THESE PRESENTS, that THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware corporation, (formerly Burlington Northern Railroad
Company), of 0000 Xxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxx 00000-0000, hereinafter
called "Grantor", for Fourteen Thousand Six Hundred Fifty and No/100 Dollars
($14,650.00) and other good and valuable consideration, to it in hand paid by
RED TRAIL ENERGY, LLC, a North Dakota limited liability company, of 00 Xxxxx
Xxxxxx X. Xxxxxxxxxx, Xxxxx Xxxxxx 00000, hereinafter called "Grantee", the
receipt whereof is hereby acknowledged, does hereby REMISE, RELEASE and FOREVER
QUITCLAIM, without any covenants of warranty whatsoever and without recourse to
the Grantor, its successors and assigns, unto the said Grantee, its successors
and assigns, all its right, title and interest, if any, in and to that piece,
parcel or tract of land, subject, however, to all existing interests, including
but not limited to all reservations, rights-of-way and easements of record or
otherwise, situated in the County of Xxxxx and State of North Dakota,
hereinafter called "Property", being more particularly described as follows:
The Southerly or Southwesterly 150.0 feet of The Burlington Northern and
Santa Fe Railway Company's (formerly Northern Pacific Railway Company)
400.0 foot wide Charter Right of Way, being 200.0 feet wide on each side of
said Railway Company's Main Track centerline, as originally located and
constructed upon, over and across the S 1/2 of Section 4, the NE 1/4 NE 1/4
of Section 9, and the NW 1/4, the SW 1/4 NE 1/4 and the SE 1/4 of Section
10, all in Township 139 North, Range 92 West of the 5th P. M., Xxxxx
County, North Dakota, bounded on the East by the East line of said Section
10, and bounded on the(1) West by the West line of said Section 4.
Grantee has been allowed to make an inspection of the Property and has
knowledge as to the past use of the Property. Based upon this inspection and
knowledge, Grantee is aware of the condition of the Property and GRANTEE
ACKNOWLEDGES THAT GRANTEE IS PURCHASING THE PROPERTY ON AN "AS-IS WITH ALL
FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE
RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND THAT GRANTEE IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND
WHATSOEVER FROM GRANTOR AS TO ANY MATTERS CONCERNING THE PROPERTY, including the
physical condition of the Property and any defects thereof, the presence of any
hazardous substances, wastes or contaminants in, on or under the Property, the
condition or existence of any of the above ground or underground structures or
improvements in, on or under the Property, the condition of title to the
Property, and the leases, easements or other agreements affecting the Property.
Grantee is aware of the risk that hazardous substances and contaminants may be
present on the Property, and indemnifies, holds harmless and hereby waives,
releases and discharges forever Grantor from any and all present or future
claims or demands, and any and all damages, loss, injury, liability, claims or
costs, including fines, penalties and judgments, and attorney's fees, arising
from or in any way related to the condition of the Property or alleged presence,
use, storage, generation, manufacture, transport, release, leak, spill, disposal
or other handling of any hazardous substances or contaminants in, on or under
the Property. Losses shall include without limitation (a) the cost of any
investigation, removal, remedial or other response action that is required by
any Environmental Law, that is required by judicial order or by order of or
agreement with any governmental authority, or that is necessary or otherwise is
reasonable under the circumstances, (b) capital expenditures necessary to cause
the Grantor's remaining property or the operations or business of the Grantor on
its remaining property to be in compliance with the requirements of any
Environmental Law, (c) losses for injury or death of any person, and (d) losses
arising under any Environmental Law enacted after transfer. The rights of
Grantor under this section shall be in addition to and not in lieu of any other
rights or remedies to which it may be entitled under this document or otherwise.
This indemnity specifically includes the obligation of Grantee to remove, close,
remediate, reimburse or take other actions requested or required by any
governmental agency concerning any hazardous substances or contaminants on the
Property.
The term "Environmental Law" means any federal, state or local statute,
regulation, code, rule, ordinance, order, judgment, decree, injunction or common
law pertaining in any way to the protection of human health or the environment,
including without limitation, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Toxic
Substances Control Act, and any similar or comparable state or local law.
The term "Hazardous Substance" means any hazardous, toxic, radioactive or
infectious substance, material or waste as defined, listed or regulated under
any Environmental Law, and includes without limitation petroleum oil and any of
its fractions.
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In connection with construction of any improvements on the Property,
Grantee agrees, at Grantee's costs and expense, to construct, reconstruct,
renew, maintain and operate, upon said Property to be conveyed hereby, such
sewer line, ditches, culverts or flood plains as may be required so that water
discharged from the Property to be conveyed hereby, whether created by nature or
Grantee's operation of said Property, does not flow onto the land and trackage
retained by Grantor located adjacent to said Property, or from said Property, so
that said water does not flow toward Grantor's trackage. This covenant shall be
binding upon Grantee, its successors and assigns. This covenant shall run with
the land.
Grantee understands and acknowledges that a fiber optic communications line
or lines traverses through the Property and that this sale shall be subject to
all rights and interests of that certain telecommunications easement between
Grantor and Catellus Fiber Optics, LLC dated December 30, 1998, to provide for
the continued operation and maintenance of said line or lines. If during the
development and use of the Property by the Grantee and its successors or
assigns, it becomes necessary to relocate, encase or otherwise protect the said
line or lines, those costs shall be assumed at the Grantee's sole expense.
Grantee agrees to construct or arrange for the construction on the Property
within two (2) years from date of closing of this conveyance, a railroad spur
track to serve the Property for the shipment of freight by railroad cars to be
used in Grantee's business of operating an ethanol plant. In the event Grantee
has not constructed said track within the said two (2) year period, Grantor
shall have the right, for a period of one (1) year from and after the expiration
of said two (2) year period, to repurchase the Property for the same
consideration paid by Grantee; without further compensation for any improvements
located thereon, upon giving written notice to Grantee of Grantor's intent to
repurchase said Property. Upon service of such notice upon Grantee and the
tender of the said consideration to Grantee by Grantor, Grantee shall reconvey
the Property to the Grantor by good and sufficient warranty deed, free and clear
of all liens and encumbrances, except for those enumerated in the conveyance
contemplated hereby, and Grantee shall give Grantor a title insurance policy or
an abstract f title evidencing such good title.
BY ACCEPTING THIS DEED, GRANTEE ACKNOWLEDGES THAT GRANTOR, AS SUCCESSOR IN
INTEREST TO THE NORTHERN PACIFIC RAILWAY COMPANY, ACQUIRED A DETERMINABLE
OWNERSHIP INTEREST IN THE PROPERTY FROM THE UNITED STATES OF AMERICA, PURSUANT
TO SECTION 2 OF THE NORTHERN Pacific LAND GRANT ACT OF 1864, AND GRANTEE AGREES
TO THE CONDITIONS AND LIMITATIONS IMPOSED BY THIS NORTHERN PACIFIC LAUD GRANT
ACT.
TO HAVE AND TO HOLD the Property unto the said Grantee, its successors and
assigns, forever.
BNSF 03387 Richardton, ND
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IN WITNESS WHEREOF, the said Grarilor has caused this instrument to be
signed by its authorized representative, attested by its Assistant Secretary,
and its corporate seal to be affixed hereto on the 22nd day of March, 2004.
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
By: /s/ X. X. Xxxxxxxxx
------------------------------------
X. X. Xxxxxxxxx
General Director Real Estate
ATTEST:
[SEAL] By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------
Xxxxxxxx Xxxxxxxxxx
Assistant Secretary
[AUDITOR'S XXXXXX XXXXX]
XXXX 00000 Xxxxxxxxxx, XX
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STATE OF TEXAS SECTION
SECTION SS.
COUNTY OF TARRANT SECTION
On this 22nd day of March, 2004, before me, Xxxxxx Xxxx Xxxxxx, a Notary
Public in and for said County and State, personally appeared X. X. Xxxxxxxxx and
Xxxxxxxx Xxxxxxxxxx, to me known to be the General Director Real Estate and
Assistant Secretary, respectively, of THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware corporation, the corporation that is described in
and that executed the foregoing instalment and acknowledged to me that such
corporation executed the same.
[SEAL] /s/ Xxxxxx Xxxx Xxxxxx
----------------------------------------
Notary Public
My commission expires: 7/21/04
I certify that the requirement for a report or statement of foil consideration
paid does not apply because this deed is for one of the transactions exempted by
subdivision i as it relates to quitclaim deeds of the subsection 6 of N.D. Cent.
Code, Section 11-18-02.2 (1999).
Signed: /s/ Xxxxxxx X. Xxxx Date: 7/22/05
-----------------------------
Xxxxxxx X. Xxxx, Agent
THE LEGAL DESCRIPTION WAS PREPARED BY STAUBACH GLOBAL SERVICES, INC., 0000 XXXXX
XXXXXXXXX XXXXX, XXXXX 000, XXXX XXXXX, XXXXX 00000-0000
FORM APPROVED BY LAW
APPROVED
LEGAL KKH
APPROVED
FORM AH
APPROVED REW
BNSF 03387 Richardton, ND
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