Exhibit 10.31
ASSIGNMENT AND ASSUMPTION
OF
OPTION TO PURCHASE AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT OF OPTION TO PURCHASE
AGREEMENT ("Assignment"), is entered into and made effective as of the 6th day
of April, 2007 (the "Effective Date") by and between AG PARTNERS, L.L.C., an
Iowa limited liability company(Assignor") and OREGON TRAIL ENERGY, LLC, a
Delaware limited liability company ("Assignee").
RECITALS
1. Xxxxx Xxxx and Xxxxxx Xxxx ("Seller") and Assignor entered into a
Option to Purchase Agreement dated September 11, 2006 ("Option Agreement") as
amended by Amendment To Option Agreement dated September 22, 2006, for the
purchase of property located in Buena Vista County, Iowa and more particularly
described on EXHIBIT A attached hereto.
2. Pursuant to Section 7 of the Option Agreement, Assignor desires to
transfer its interest in and to the Option Agreement to Assignee.
AGREEMENT
In consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follow:
1. Assignor hereby assigns to Assignee, all of Assignor's right, title
and interest in and to the Option Agreement as of the Effective Date.
2. Assignee hereby assumes and agrees to be bound by and to abide by
each and every one of the terms and conditions of the Option Agreement as of the
Effective Date.
3. Assignee agrees to indemnify, defend and hold harmless Assignor, its
successors and assigns and its employees, agents, directors, officers and
affiliated companies from any and all losses, liabilities, damages, claims,
suits, costs or expenses (including but not limited to attorneys' fees), or
injuries to any persons or property arising out of, resulting from, or in
connection with Assignee's performance under or breach of the Option Agreement.
4. If within six (6) months of the date of this Assignment plus the
amount of time of any extension to the term of the Option Agreement, Assignee
for any reason does not (1) commence construction of the physical ethanol
facility on the Property related to and for the purpose of the ethanol project
currently contemplated by the parties to this Agreement ("Ethanol Project"), and
(2) bring the Ethanol Project currently contemplated to full and complete
financial close, then Assignor, at its sole option, may (i) if the option to
purchase the property set forth on Exhibit A has not been exercised, require
Assignee to assign the option back to Assignor without any additional expenses
to Assignor, or (ii) if the option has been exercised, purchase the
property from Assignee for the Purchase Price set forth under the Option
Agreement, less any amounts Assignor paid to acquire the option and any amounts
for any work done by Assignor or on Assignor's behalf in connection with the
ethanol project.
5. If within six (6) months of the date of this Assignment plus the
amount of time of any extension to the term of the Option Agreement, Assignee
for any reason does not reach a definitive corn supply services agreement with
Assignor related to and for the purpose of the Ethanol Project then Assignor, at
its sole option, may (i) if the option to purchase the Option Property set forth
on Exhibit A has not been exercised, require Assignee to assign the Option
Agreement back to Assignor without any additional expenses to Assignor, or (ii)
if the option has been exercised, purchase the Option Property from Assignee for
the Purchase Price set forth under the Option Agreement, less any amounts
Assignor paid to acquire the Option Agreement and any amounts for any work done
by Assignor or on Assignor's behalf in connection with the Ethanol Project.
6. In the event that the period within which the Option under the
Option Agreement may be exercised is extended, then the six (6) month period
described in sections 4 and 5 above shall be extended by the same period of time
by which the period of extension for the exercise of the Option.
7. This Assignment shall bind and shall inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
8. Assignor shall execute and deliver such further instruments of
assignment and take any such other action as Assignee may require to more
effectively complete the transfer and delivery of the Assignment to Assignee.
9. This Assignment may be executed in two or more counterparts, each of
which may be deemed an original but together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Option to Purchase Agreement as of the date first above
written.
ASSIGNOR: AG PARTNERS, L.L.C.
By:/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Its: Chief Executive Officer
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ASSIGNEE: BIOFUEL ENERGY, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Authorized Representative
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EXHIBIT A
OPTION AGREEMENT ATTACHED
