REAL ESTATE OPTION AGREEMENT
EXHIBIT 10.14
THIS REAL ESTATE OPTION AGREEMENT (“Agreement”) is made this 28 day of
September , 2005, by and between Xxxxx, Xxx and Xxxxxxx Xxxxxxxxx Farm Partnership, a North
Dakota general partnership (hereinafter referred to as
“Optionor”) and Gold Energy, LLC, a
Minnesota company (hereinafter referred to as “Optionee”).
WITNESSETH:
WHEREAS, Optionor is the owner of real estate described below and desires to exchange cash
for said real property under defined terms; and Optionee desires to acquire said Property from Optionor
in accordance with the terms and conditions set forth hereafter.
NOW THEREFORE, IN CONSIDERATION of the covenants and promises contained hereafter, it is
agreed:
PREMISES: Optionor hereby grants to Optionee the exclusive option to purchase real
estate located in Richland County, North Dakota, (the “Property”) more specifically described as
follows:
120 acres, more or less, with a survey to govern, located in the North Half (N1/2) of
Section One (1), Township One Hundred Thirty-two (132) North, Range Fifty-two (52), West
of the Fifth Principal Meridian, Richland County, North Dakota, lying West of the
Canadian Pacific Railroad.
CONSIDERATION: The price (the “Purchase Price”) for the Property shall be $5,000.00
an acre, payable by the Optionee as herein provided with acreage to be determined by the survey
referenced previously. As consideration for the option, Optionee agrees to pay to Optionor at the
time of the execution of this Agreement the sum of $1,000.00 (the “Option Consideration”) with said
payment to be credited to the Purchase Price at closing. The remaining balance of the Purchase
Price shall be paid in cash and at closing.
TERM: This Agreement shall commence on the date of the execution of this Agreement
and continue to the 29th day of August, 2006 at 5:00 o’clock P.M. Optionee shall have
the right to extend this option for an additional six (6) months upon payment to Optionor of the
sum of $500.00, which shall become a part of the Option Consideration. If not exercised timely,
this Agreement shall expire automatically and be null and void and the Option Consideration shall
be forfeited to the Optionor. If extended, the additional $500.00 shall be credited against the
Purchase Price at closing.
NOTICE OF EXERCISE OF OPTION: Optionee shall at any time during the option term
notify Optionor by registered mail, Federal Express delivery or hand delivery of its written demand
that Optionee intends to complete the purchase of the Property. The conveyance and
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closing for the
Property defined above shall thereupon be completed within 90 days thereafter in accordance with
the terms and conditions set forth hereafter.
TERMS: In the event this Option is exercised, Optionor agrees to sell and Optionee
agrees to purchase the Property, with improvements thereon, if any, under the following terms and
conditions:
| 1. | Right to Enter Property and Due Diligence. Optionor agrees that Optionee and/or third-parties directed by Optionee, shall have the right to enter upon the Property at any time from the date of this agreement until closing in order to conduct due diligence investigations upon the Property by giving Optionor one (1) day advanced written or verbal notice. Any due diligence costs and work performed, including, but not limited to, surveys and environmental studies conducted, shall be at the sole cost of the Optionee. | ||
| 2. | Crop Damage. In the event that Optionee’s due diligence and/or conveyance of the Property to Optionee shall occur after Optionor, or its tenants and/or agents, plants crops, but before harvest of those crops, the parties hereto mutually agree that Optionor shall have the right, upon notice to the Optionee and at the Optionee’s convenience, to harvest any crops not destroyed by the Optionee in the process of its due diligence and/or its construction of an ethanol plant and related improvements thereto. The Optionee shall have no duty to preserve any of such crops, and the Optionor accepts as liquidated damages (in lieu of any and all other damages) an amount equal to the most recent USDA proven yield for the commodity planted on the Property in the year of damage multiplied by the USDA four year average price for the commodity grown in the year of damage, multiplied by the number of acres, or fractional acres, of crop destroyed on the Property. If the parties cannot mutually agree upon the number of crop acres damaged, the number of such cop acres damaged shall be measured by an independent third-party as the parties hereto may mutually identify. | ||
| 3. | Termination Of Tenants. Regardless of when or if Optionee provides notice of the exercise of its option provided hereunder, in the event this option is exercised, Optionor agrees to provide timely notice to any tenant of the Property of the termination of such tenant’s tenancy. Such notice shall follow the form required for the termination of farm tenancies under the applicable lease terms involved and/or North Dakota Law. | ||
| 4. | Title Examination. No later than 20 days from delivery of notice of exercise of the option granted hereby, the Optionor shall furnish to Optionee a duly certified Abstract of Title to the Property, continued to a recent date, showing good and marketable title in the Optionor, free and clear of all liens and encumbrances, except as noted below. The Optionee shall have 15 days time to examine said abstract of title and within said period of time shall promptly notify the Optionor of all objections thereto in writing. If the title to the Property is unmarketable, the Optionor shall have a period of 90 days in which to correct the title and make it marketable. If the title to the Property cannot be made marketable within said period of time or such further time as may be granted by the Optionee, the Optionee shall be entitled to the return of the Option Consideration paid |
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under this Agreement, but otherwise this Agreement shall be wholly null, void and
unenforceable.
| 5. | Title, Liens and Encumbrances. At closing, Optionor shall transfer title to Optionee by a Warranty Deed conveying good and marketable title to the Optionee. The sale and transfer by Warranty Deed shall be free of all liens and encumbrances except for the following: |
| A. | Building and zoning laws, ordinances, sate and federal regulations, provided they do not materially and adversely affect the use of the property; | ||
| B. | Reservation of any mineral or mineral rights of record; | ||
| C. | Utility, drainage and other easements of record which do not materially and adversely interfere with the use of the Property. | ||
| D. | Part of the property may be subject to a Conservation Reserve Program contract with the United States Department of Agriculture in regard to which Optionee shall accept title subject to said Contract and shall indemnify the Optionors as more fully set forth herein with respect thereto. |
| 6. | Taxes and Special Assessments. The Optionor agrees to pay all real estate taxes and assessments for special improvements levied or assessed for the year prior to closing. Real estate taxes, and assessments for special improvements for the year of closing shall be prorated between the Optionor and the Optionee and in the event the exact amount of the taxes and assessments for that year are not yet known, the amount to be prorated shall be based on the real estate taxes and assessments for special improvements for the previous year. Optionee agrees to pay the real estate taxes and assessments for special improvements for all subsequent years. | ||
| 7. | Closing and Possession. Possession is to be given immediately upon completion of closing. Closing shall occur after approval of title and PRIOR TO POSSESSION, but in no event later than 90 days from the date of the notice of exercise of the option, or as otherwise agreed upon by the parties. | ||
| 8. | Default. In the event either party has fulfilled all of its obligations hereunder and all conditions precedent and concurrent to closing for which it is responsible and the other party fails to fulfill its obligations hereunder and continues to fail and refuses to fulfill its obligations hereunder for more than 30 days after receipt of written notice of such default from the non-defaulting party, the non-defaulting party may either: in the case of the Optionee 1) terminate this Agreement, in which event it shall be entitled to refund of the Option Consideration and any other monies paid hereunder to Optionor and such termination and Option Consideration shall be the sole remedy and damages available, or 2) pursue any legal and/or equitable remedy available to it; or in the case of the Optionor 1) terminate this Agreement, in which event it shall be entitled to retain the Option Consideration and any other monies paid |
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hereunder by Optoinee to Optionor, and such termination and retainage
shall be the sole remedy and damages available to the Optionee, or 2) pursue any legal
and/or equitable remedy available to it.
| 9. | Disclaimer — the Property is sold AS IS. Except for warranty of title, Optionor will give no warranty and will make to representations to Optionee of any kind. THERE ARE NO EXPRESS WARRANTIES AND OPTIONOR SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF HABITABILITLY, IMPLIED WARRANTIES, IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PROPERTY WILL BE SOLD AS IS, WITHOUT WARRANTY OF ANY KIND, WITH ALL FAULTS AND IN ITS PRESENT CONDITION. THE PROPERTY WILL ALSO BE SOLD WHERE IS AND NO WARRNATY OR REPENSTATIONS WITH RESPECT TO BOUNDARY LINES WILL BE MADE BY OPTIONOR. Optionee must satisfy Optionee that the Property is entirely within boundary lines expected. Optionee represents to the Optionor that Optionee takes the Property in its present condition with all its faults. Optionee has been or will be provided full and complete access to the Property and the full right to examine and test the same. Optionee is relying solely upon such access, investigation and Optionee’s testing and is not relying upon any representation or warranty of Optionor. | ||
| 10. | Drainage. Optionee agrees that the drainage as it presently exists on Section One (1), Township One Hundred Thirty-two (132) West, Range Fifty-two (52), West of the Fifth Principal Meridian, Richland County, North Dakota, shall remain as it presently exists. | ||
| 11. | FSA Acres. Calculation rights for any and all Farm Service Agency payment acres (or what were formerly referred to as “Base Acres”) transferred pursuant to the exercise of this option shall be signed over to the James, Dan, and Xxxxxxx Xxxxxxxxx Farm Partnership at no cost to the partnership. Notwithstanding the foregoing, to the extent that any Conservation Reserve Program acres are transferred to the Optionee, then Optionee shall succeed to said Conservation Reserve Program contract and be entitled to those contract payments as per the terms of the contract. | ||
| 12. | Indemnification. Optionee will indemnify and hold Optionor harmless from all liabilities (including reasonable attorney’s fees in defending against said claims) arising out of claims by third parties, including, but not limited to, the United States Department of Agriculture with respect to the Conservation Reserve Program contract, relating to acts or occurrences on, at, or with respect to the Property, which occur subsequent to the closing. | ||
| 13. | Access. Optionee, at Optionee’s sole cost, shall provide Optionor with access to the farmland located in Section One by virtue of either an access road on the East side of the new railroad tracks contemplated as part of the development of the Optionee or by virtue of two approaches providing access to the West side of Section One (1), Township One |
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Hundred Thirty-Two (132) Range Fifty-two (52), together with appropriate culverts at Optionee’s
expense. Said approaches and/or access shall be wide enough for semi trucks and other
appropriate farm implements to access said property of the
Optionor. Optoinee shall maintain said approaches and accesses allowing access at no cost
to the Optionor in perpetuity.
| 14. | Hangar. Subsequent to closing but prior to any improvements being constructed on the Property, Optionor shall have eth right to remove the 42’ by 32’ hangar presently located on the property at no cost to Optionee. |
SURVIVAL All of the terms, representations, warranties and disclaimers contained in
this Agreement are continuing and shall survive the closing.
RECORDING OF OPTION The parties hereto agree that this Option Agreement may be
recorded with the Richland County Recorder’s office.
NOTICES Any notice, demand or other document which either party is required or may
desire to give or deliver to or make upon the other party shall be given in writing and served
either personally or given by prepaid United States certified mail, return receipt requested, and
addressed to the following addresses:
If to Optionor:
|
Xxxxx, Xxx and Xxxxxxx Xxxxxxxxx Farm Partnership | |
| 0000 Xxxxxxx 00 | ||
| X.X. Xxx 00 | ||
| Xxxxxxxx, Xxxxx Xxxxxx 00000-0000 | ||
| With a copy to: | ||
| X.X.X. Xxxxx | ||
| Xxxxx, Stregge & Xxxxxxxxxxx, Ltd. | ||
| Xxx 00 | ||
| Xxxxxxxx, XX 00000 | ||
If to Optionee:
|
Gold Energy, LLC | |
| c/o _______________ | ||
| 0000 0xx Xxxxxx Xxxxx | ||
| Xxxxxxxx, XX 00000 |
1031 EXCHANGE: If requested by Optionor, Optionee will cooperate with the Optionor in
conducting a §1031 like-kind exchange, the cost of which will be paid by the Optionor.
TIME: Time is of the essence as to the performance of all of the terms and conditions
of this Agreement.
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IN WITNESS WHEREOF, said parties hereto subscribe their names.
| OPTIONOR: | OPTIONEE: | |||||||||
| JAMES, DAN, AND XXXXXXX XXXXXXXXX | GOLD ENERGY, LLC | |||||||||
| FARM PARTNERSHIP | ||||||||||
By:
|
/s/ Xxx X. Xxxxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxxxx
|
|||||||
| Xxx X. Xxxxxxxxx, General Partner | Its [Handwritten: Vice President] | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |||||||||
| Xxxxx X. Xxxxxxxxx, General Partner | ||||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |||||||||
| Xxxxxxx X. Xxxxxxxxx, General Partner | ||||||||||
STATE OF
|
North Dakota | ) | |||||||
| ) | SS: | ||||||||
COUNTY OF
|
Richland | ) |
Xxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx,
On
this 29th
day of September, 2005, before me personally appeared
Xxx X. Xxxxxxxxx, known to me to be a general partners of Xxxxx, Xxx and Xxxxxxx
Xxxxxxxxx Farm Partnership, a North Dakota general partnership, the partnership that is described
in and that executed the within and foregoing document, and acknowledged to me that they executed
the same on behalf of said partnership.
[Stamped:
|
XXXXX X. XXXXXX | /s/ Xxxxx X. Xxxxx
|
||||||
| Notary Public | Notary Public | |||||||
| State of North Dakota | My Commission Expires: 7-12-06 | |||||||
| My | Commission Expires July 12, 2006] |
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STATE OF
|
North Dakota | ) | |||||||
| ) | SS: | ||||||||
COUNTY OF
|
Richland | ) |
On
this 28th day of September, 2005, before me personally appeared
Xxxxxx X. Xxxxxxxx known to me to be the Vice President of Gold
Energy, LLC, a Minnesota limited liability company, the limited
liability company,
that said described in and that executed the within and foregoing document, and acknowledged to me
that he executed the same on behalf of said limited liability company.
| /s/ Xxxx Xxxx Xxxxxxxx
|
||||
| My Commission Expires: | ||||
| [Stamped: XXXX XXXX XXXXXXXX | ||||
| Notary Public | ||||
| State of North Dakota | ||||
| My Commission Expires Feb. 14, 2011] |
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