OPTION TO PURCHASE REAL ESTATE
Exhibit 10.13
This option made and entered by and between Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, husband
and wife, 0000 Xxxxx 0000 Xxxx, Xxxxxxx, XX 00000-0000, hereinafter referred to as SELLER, and
Cardinal Ethanol, LLC, 2 OMCO Square, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxx 00000, hereinafter referred
to as BUYER, WITNESSETH:
SELLER is the owner of the real estate described at Exhibit “A”.
SELLER desires to grant BUYER an option to purchase the real estate described at Exhibit “A”.
For and in consideration of the sum of Eight Hundred ($800.00) Dollars paid to SELLER by
BUYER, SELLER gives and grants to BUYER the exclusive option, under the following terms and
conditions, to purchase the real estate described at Exhibit “A”, said real estate to be surveyed,
together with the buildings and all improvements thereon, the real estate described at Exhibit “A”
as surveyed, together with the buildings and improvements thereon, sometimes hereinafter referred
to as PROPERTY.
1. Term of Option. Buyer shall exercise this option on or before January 30, 2007.
BUYER may extend the time to exercise this option to January 30, 2008, provided on or before
January 30, 2007, BUYER gives to SELLER written notice of BUYER’S desire to extend the time to
exercise this option and pays to SELLER an additional Eight Hundred ($800.00) Dollars at the time
of giving said written notice. If BUYER has not exercise this option on or before January 30,
2007, or on or before the extension date, this option shall terminate, be of no further force and
effect, and SELLER shall be entitled to keep all sums paid under this agreement.
2. Exercise of Option. This option may be exercised by giving written notice to
SELLER, at SELLER’S address as set forth above, by certified mail, return receipt requested or by
personal service, on or before midnight of January 30, 2007, or on or before midnight of the
extension date.
3. Purchase Price. The purchase price for the PROPERTY shall be the sum of
Seventy-Five Thousand ($75,000.00) dollars less the sum paid for this option and any extension
thereof.
4. Survey. At any time after the execution of this option and during the option
period or after the exercise of this option, BUYER shall cause an ALTA/ACSM survey of the PROPERTY
by Xxxxx Surveying Corporation, Richmond, IN. The cost of the survey shall be paid by the BUYER.
BUYER shall have fourteen (14) days after the delivery of said survey to object to any material
matter disclosed by the Survey. SELLER shall be able to cure any matter objected to by BUYER on or
before fifteen (15) days prior to closing. In the event SELLER is unable to cure any material
matter disclosed by the survey and objected to by BUYER, this agreement shall become null and void
and all sums paid by BUYER to SELLER under this option shall be retained by SELLER.
5. Deed. Upon payment in full by BUYER to SELLER of the purchase price for SELLER
agrees to convey the PROPERTY to BUYER by warranty deed, which warranty deed will convey the
PROPERTY to the BUYER free and clear of any and all liens and encumbrances except easements and
restrictions of record acceptable to BUYER, real estate taxes and assessments, those liens and
encumbrances that may
possibly attach to the PROPERTY by reason of the acts of omission or
commission of the BUYER, and those liens and encumbrances as herein set forth and specified.
6. Property Taxes. SELLER shall pay all installments of property taxes which become
due prior to Closing. Property taxes and assessments relating to the PROPERTY for the calendar
year of the Closing shall be prorated between SELLER and BUYER as of the Closing date. If the
actual amount of taxes for the calendar year of the Closing is not known at the time of the Closing
date, the proration shall be based on the amount of taxes due and payable with respect to the
PROPERTY for the calendar year immediately preceding the calendar year of the closing, and BUYER
shall be credited on the closing statement at the Closing SELLER’S pro rata portion of those taxes.
7. Evidence of Title. At any time after the execution of this option and during the
option period or after the exercise of this option and after the completion of the survey and the
request of BUYER, SELLER shall furnish BUYER a commitment for title insurance to be issued by a
title company acceptable to BUYER certified to a date within thirty (30) days of delivery to BUYER,
showing merchantable title to the PROPERTY in the name of SELLER. The cost of the commitment shall
be paid by BUYER. BUYER shall have fourteen (14) days after the delivery of said commitment for
title insurance to notify SELLER of the acceptance of title or of any material defects therein. It
is agreed by SELLER and BUYER that the following shall not be considered material defects in title:
easements, covenants and restrictions of record acceptable to BUYER; real estate taxes and
assessments; liens and encumbrances as set forth and mentioned in this agreement; any liens and
encumbrances that may possibly attach to the PROPERTY by reason of the acts of omission or
commission of the BUYER; and those liens and
encumbrances that will be paid at the time of closing.
SELLER shall be able to cure any material defects in title on or before fifteen (15) days prior to
closing. In the event SELLER is unable to cure said material title defects, this agreement shall
become null and void and all sums paid by BUYER to SELLER under this option shall be retained by
SELLER.
On or before thirty (30) days after the closing of this transaction, SELLER shall deliver to
BUYER a title insurance policy which shall show merchantable title to the PROPERTY in the name of
BUYER and show said real estate to be free and clear of any and all liens and encumbrances except
as set forth above.
8. Right of Inspection and Investigation. At any time after the execution of this
option and during the option period or after the exercise of this option, BUYER shall have the
right, at BUYER’S expense, to conduct such inspections and investigations of the PROPERTY as BUYER
may desire at BUYER’S absolute discretion. BUYER shall pay to SELLER any damages caused by BUYER
or BUYER’S agents, independent contractors or employees for damages to the PROPERTY as a result of
BUYER’S inspections or investigations. In the event BUYER’S inspections and investigations reveal
that the PROPERTY is not satisfactory for BUYER’S purposes, such determination to be in BUYER’S
sole and absolute discretion, this option shall become null and void and all sums paid by BUYER to
SELLER under this agreement shall be retained by SELLER.
9. Permits to Allow Use of PROPERTY for BUYER’S Intended Purposes. At any time after
the execution of this option, and during the option period, or after the exercise of this option,
BUYER shall, at BUYER’S expense, pursue and obtain from all
governmental authorities and
nongovernmental entities, approvals which are necessary to permit the use of the PROPERTY for
BUYER’S intended purposes. SELLER shall execute such documents as are necessary and shall assist
BUYER to obtain such approvals. In the event BUYER cannot obtain such approvals, this agreement
shall become null and void and all sums paid by BUYER to SELLER under this option shall be retained
by SELLER.
10. Assignment. This option may not be assigned by BUYER to any individual, limited
partnership, corporation or other entity unless the consent of the SELLER is first obtained in
writing, however such written consent of the SELLER shall not be unreasonably withheld.
11. Real Estate Agent. The parties agree that BUYER has no responsibility for the
payment of any real estate agent or brokerage fees incurred in the sale of the PROPERTY.
12. Recording. A memorandum of this option may be recorded in the public records of
Xxxxxxxx County, State of Indiana.
13. Time. Time is of the essence of this option.
14. Attorney’s Fees. After the exercise of this option by BUYER, in the event that
either party shall fail or refuse to complete the transaction as provided for in this option, the
nonprevailing party shall pay the prevailing party all reasonable expenses including, but not
limited to, Attorney’s fees and Court costs, incurred by the prevailing party in any litigation,
negotiation or transactions relating to, or arising out of, the enforcement of this option by the
prevailing party.
15. Expenses. BUYER shall pay the cost of an Owner’s Policy of Title Insurance; the
cost of survey; the cost of any inspections of the real estate under paragraph 8; and the
settlement fee. SELLER shall pay the cost of deed preparation and the cost of curing title and
survey defects. Any other costs of this transaction will be paid by the party incurring the same.
16. Closing. This transaction shall close at the law office of Xxxxxx X. Xxxx, 000
X. Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or such other place as may be agreed upon by the
parties, thirty (30) days after the conditions of paragraphs 4, 7, 8, and 9 have been met and on
the same date as BUYER’S closing with Xxxx Xxxx and Xxxxxxx X. Xxxx, as Trustees of the Living
Trust of Xxxx Xxxx and Xxxxxxx X. Xxxx dated April 22, 1993; and on the same date as BUYER’S
closing with Xxxxxxx Farms LLC. Provided, that this transaction shall, in any event, close no
later than six (6) months after the date the option is exercised. Proceeds shall be distributed to
SELLER after SELLER’S transactions are closed and after BUYER’S transactions are closed with Xxxx
Xxxx and Xxxxxxx X. Xxxx, as Trustees of the Living Trust of Xxxx Xxxx and Xxxxxxx X. Xxxx dated
April 22, 1993; and with Xxxxxxx Farms LLC.
17. SELLER’S Default. After the exercise of this option by Buyer, in the event that
SELLER shall refuse or fail to complete the transaction as provided for in this option, SELLER
shall pay to BUYER all sums paid to SELLER under this option and this option shall be considered
null and void or, at the option of BUYER, BUYER may pursue such remedies as are available to BUYER
at either law or equity.
18. BUYER’S Default. After the exercise of this option by BUYER, in the event that
BUYER shall refuse or fail to complete the transaction as provide for in this
option SELLER’S sole
and only remedy shall be to retain all sums paid under this option as liquidated damages and this
option shall be considered null and void.
19. Severability. If any provision of this option is held invalid by a Court of
competent jurisdiction, it shall be considered deleted from this option, but such invalidity shall
not affect the other provisions that can be given effect without the invalid provisions.
20. Entire Agreement. This option constitutes the entire agreement between the
parties. This option shall not be amended except by written agreement signed by both parties.
21. Headings. Headings or titles to said sections or paragraphs of this option are
solely for the convenience of the parties and shall have no effect whatsoever on the interpretation
of the provisions of this agreement.
22. Law Governing. This option shall be governed by the laws of the State of
Indiana.
23. Authority. The undersigned person executing this agreement for and on behalf of
BUYER represents and certifies that he is the President of BUYER and he has authority to execute
this agreement for and on behalf of BUYER.
24. Binding on Successors and Assigns. Provisions of this agreement will bind the
successors and assigns of the respective parties.
25. Contingency: If the event BUYER does not close with Xxxx Xxxx and Xxxxxxx X.
Xxxx, as Trustees of the Living Trust of Xxxx Xxxx and Xxxxxxx X. Xxxx dated April 22, 1993 and
with Xxxxxxx Farms LLC, this agreement shall be considered null and void and all sums paid under
this option shall be retained by SELLER.
IN WITNESS WHEREOF, SELLER has executed this agreement this 17th day of
February, 2006, and BUYER has caused this agreement to be executed this
17th day of February, 2006.
| Cardinal Ethanol, LLC | ||||||
/s/ Xxxxxxx X. Xxxxxxxx
|
By: | /s/ Xxxx X. Xxxxxxxx | ||||
Xxxxxxx X. Xxxxxxxx
|
Xxxx X. Xxxxxxxx | |||||
| President | ||||||
/s/ Xxxx X. Xxxxxxxx |
||||||
Xxxx X. Xxxxxxxx |
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SELLER
|
BUYER | |||||
State of Indiana, |
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County of Xxxxxxxx, XX: |
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Before me, the undersigned Notary Public in and for Xxxxx County, Indiana, this
17th day of February, 2006, came Xxxxxxx X. Xxxxxxxx and Xxxx X.
Xxxxxxxx, husband and wife, and acknowledged the execution of the foregoing instrument.
| Witness my hand and official seal. | ||||||
| /s/ Xxxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| Printed Name: Xxxxxx X. Xxxx | ||||||
| County of Residence: Xxxxx | ||||||
My Commission Expires:
|
||
October 28, 0000 |
||
Xxxxx xx Xxxxxxx,
Xxxxxx xx Xxxxxxxx, XX:
Personally appeared before me, the undersigned Notary Public in and for Xxxxx County,
State of Indiana, this 17th day of February, 2006, Xxxx X. Xxxxxxxx,
personally known to me to be President of Cardinal Ethanol, LLC, and after first being duly sworn
upon his oath, acknowledged the execution of the above and foregoing instrument for and on behalf
of Cardinal Ethanol, LLC and stated that the representations contained herein are true.
| /s/ Xxxxxx X. Xxxx | ||||||
| Notary Public | ||||||
| Printed Name: Xxxxxx X. Xxxx | ||||||
| County of Residence: Xxxxx | ||||||
My Commission Expires:
|
||
October 28, 2007 |
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| This instrument prepared by Xxxxxx X. Xxxx, Attorney, Winchester, IN | ||
The following described real estate situate in Xxx County, Indiana, to-wit:
A part of the South part of the Southeast Quarter of Section 9, Township 22 North, Range 12 East,
described as follows: Beginning at the Southwest corner of the Southeast Quarter of said Section
9, Township and Range aforesaid, running thence North on and along the center of the North and
South Road, which is the half section line of said section a distance of eleven hundred thirty-two
(1132) feet and four (4) inches; thence East one hundred twenty (120) feet; thence North
eighty-tree (83) feet; thence West one hundred seventy-four (174) feet; thence North fifteen (15)
feet; thence West one hundred twenty (120) feet and six (6) inches; thence South eighty-eight (88)
feet, more or less, to the place of beginning.
EXHIBIT “A”
