OPTION TO PURCHASE REAL ESTATE
Exhibit 10.11
OPTION TO PURCHASE REAL ESTATE
This option made and entered by and between Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, husband
and wife, 000 Xxxxx 000 Xxxx, Xxxxxxxx, XX 00000, sometimes hereinafter referred to as XXXXXXXX;
Xxxxx X. Xxxxxx, Trustee of the Xxxxx X. Xxxxxx Trust under a written trust agreement dated
September 18, 1992, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX; sometimes hereinafter referred to as the
XXXXXX TRUST, and Xxx X. Xxxxx, Trustee of the Xxxx Xxxxxxx Xxxxx Revocable Trust Agreement dated
September 18, 2003, 0000 Xxxx 00xx Xxxxxx,, Xxxxxxxx, XX 00000, sometimes
hereinafter referred to as the XXXXX TRUST; XXXXXXXX, XXXXXX MUST and XXXXX !RUST sometimes
hereinafter referred to as SELLER, and Cardinal Ethanol, LLC, 0 XXXX Xxxxxx, X.X. Xx, 000,
Xxxxxxxxxx, Xxxxxxx 00000, hereinafter referred to as BUYER, WITNESSETH:
XXXXXXXX owns Tract I of the real estate described at Exhibit “A” attached hereto and
incorporated herein by reference.
XXXXXX TRUST owns Tract 2 of the real estate described at Exhibit “A” attached hereto axed
incorporated herein by reference.
XXXXX TRUST owns TRACT 3 of the real estate described at Exhibit “A” attached hereto and
incorporated herein by reference.
SELLER desires to grant BUYER an option to purchase the real estate described at Exhibit “A”.
For and in consideration of the sum of One Thousand Five Hundred ($1,500.00) Dollars paid to
the XXXXXXXX by BUYER, receipt of said sum being acknowledged by the CHEESMA N with the execution
of this option; the sum of One Thousand Five Hundred ($1,500.00) Dollars paid to the XXXXXX TRUST
by BUYER, receipt of said sum being acknowledged by the XXXXXX TRUST with the execution of this
option; and
the sum of One Thousand Five Hundred ($1,500.00) Dollars paid to the XXXXX TRUST by BUYER,
receipt of said sum being acknowledged by the XXXXX TRUST with the execution of this option; 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 One Thousand Five Hundred (Sl,.500.00)
Dollars at the time of giving said written notice. If BUYER has not exercised 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 Four Thousand Two
Hundred ($4,200.00) Dollars per surveyed acre less the sum paid for this option. In addition,
XXXXXXXX shall receive the sum of Sixty Thousand ($60,000.00) Dollars for the Buildings located on
Tract 1 of the PROPERTY,
4. Survey. At any time after the execution of this option and during the option
period or after the exercise of this option, BUY ER shall cause an ALTA/ACSM survey
of the PROPERTY by Xxxxx Surveying Corporation, Richmond, IN. The cost of the survey shall
initially be paid by the BUYER. Provided, that if BUYER objects to any material matter disclosed by
the survey and SELLER is not able to cure the defect as provided herein and BUYER cancels this
agreement because of such material defect, then SELLER shall pay one-half (1/2) of the cost of the
survey to BUYER. Provided, further, that if this transaction closes, SELLER shall pay one-half
(1/2) of the cost of the survey by BUYER being credited with one-half (1/2) of the cost at the
closing. 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 each SELLER of the purchase price for each
SELLER’S tract of ground as herein stated, each SELLER agrees to convey said SELLER’S tract 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. Each SELLER. shall pay all installments of property taxes which
become due on said SELLER’S tract prior to the Closing. Property taxes and assessments relating to
each tract for the calendar year of the Closing shall be prorated between the owner of said tract
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 each tract 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 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
initially be paid by BUYER. Provided, that if BUYER objects to any material defect and SELLER is
not able to cure the material defect as provided hereafter and BUYER cancels this transaction
because of such material defect, then SELLER shall pay to BUYER. the cost of said title commitment.
Provided, further, that if this transaction closes, then SELLER shall pay for the title insurance
by BUYER being credited with such cost at the closing, The cost of updates to the title insurance
commitment shall be paid by BUYER (with no credit) unless the updates are required because of
material defects noted in the original commitment, in which case, SELLER shall pay for said
updates. Each SELLER’S cost shall be determined by the Title Company. 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 wider 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 each SELLER any damages caused by
BUYER or BUYER’S agents, independent contractors or employees for damages to each SELLER’S tract
as a result of BUYER’S inspections or investigations. In the event BUYER’S inspections and
investigations reveal that any tract 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
non-prevailing 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. SELLER. shall pay for the cost of deed preparation; the cost of an.
Owner’s Policy of Title Insurance (as provided in paragraph 7 herein); the cost of curing title
defects; and one-half (1/2) the cost of survey (as provided in paragraph 4 herein). :BUYER shall
pay the cost of any inspections of the real estate under paragraph 8, the settlement fee and
one-half (1/2) of the cost of the survey (subject to paragraph 4 herein).
Any other costs of this transaction will be paid by the party incurring the same.
16. Closing. All transactions contemplated by this closing shall close at the law
office of Xxxxxx X. Xxxx, 000 X. Xxxxxxxxxx. Xxxxxx, Xxxxxxxxxx, .N 47394, 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 said transactions shall close on the same date and said transactions shall
close on the same date as BUYER’S transaction with Xxxx Xxxxxxx and Xxxxxx Xxxxxxx, husband and
wife. 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 each SELLER after all
transactions are closed and after the transaction with Xxxx Xxxxxxx and Xxxxxx Xxxxxxx, husband and
wife, is closed.
17. SELLER’S Default. After the exercise 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 provided 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
each SELLER represents and certifies that said person is the duly qualified trustee; said trust is
in writing and in force and effect on the date of the execution of this option; and, the trustee is
authorized by said trust to execute this option.
24. 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
25. Binding on Successors and Assigns. Provisions of this agreement will bind the
successors and assigns of the respective parties
26. Contingency: If the event BUYER does not close with any SELLER, or in the event
that BUYER does not close with Xxxx Xxxxxxx and Xxxxxx Xxxxxxx, husband and wife, pursuant to
BUYER’S agreement with Xxxx Xxxxxxx and Xxxxxx Xxxxxxx, husband and wife, this agreement shall he
considered null and void and all sums paid under this option shall be retained by SELLER.
27. Compliance with I.C. 32-21-5-1 et al. XXXXXXXX shall comply with I.C.
32.-21-5-1 through I.C. 32-21-5-13 regarding the residence located on Tract 1 of the
real estate described at Exhibit “A”.
IN WITNESS WHEREOF, XXXXXXXX has caused this option to be executed this
10th day of January, 2006; XXXXXX TRUST has caused this option to be
executed this 10th day of January, 2006; XXXXX TRUST has caused this
option to be executed this 10th day of January, 2006; and BUYER has
caused this option to be executed this day ___ of___, 2006.
| Cardinal Ethanol, LLC | ||||||||||
/s/ Xxxxxxx X. Xxxxxxxx
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By: | /s/ Xxxx X. Xxxxxxxx | ||||||||
Xxxxxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx | |||||||||
| President | ||||||||||
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx |
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/s/ Xxxxx X. Xxxxx
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Trust under a written trust agreement dated |
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September 18, 1992 |
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/s/ Xxx X. Xxxxx, Trustee
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Revocable Trust Agreement dated September 18, 2003 |
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SELLER
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BUYER | |||||||||
State of` Indiana,
County of Xxxxxxxx, XX:
Before me, the undersigned Notary Public in and for Xxxxxxxx County, Indiana, this
10th day of January, 2006, came Xxxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx, husband and wife, and acknowledged the execution of the foregoing instrument.
| Witness my hand and official seal | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Notary Public | ||||
| Printed Name: Xxxxxxx X. Xxxxxx | ||||
| County of Residence: Xxxxxxxx |
My Commission Expires
9/20/09
State of Indiana,
County of Delaware, SS:
Before me, the undersigned Notary Public in and for Delaware County, Indiana, this
10th day of January, 2006, came Xxxxx X. Xxxxxx, Trustee of the Xxxxx X.
Xxxxxx Trust under a written trust agreement dated September 18, 1992, and acknowledged the
execution of the foregoing instrument.
| Witness my hand and official seal. | ||||
| /s/ Xxxxx X. Xxxxx | ||||
| Notary Public | ||||
| Printed Name: Xxxxx X. Xxxxx | ||||
| County of Residence: Xxxxxxxx |
My Commission Expires
March 20, 0000
Xxxxx xxx Xxxxxxx,
Xxxxxx of Xxxxxxxx, XX:
Before me, the undersigned Notary Public in and for Xxxxxxxx County, Indiana, this
10th day of January, 2006, came Xxx X. Xxxxx, Trustee of the Xxxx
Xxxxxxx Xxxxx Revocable Trust Agreement dated September 18, 2003, and acknowledged the execution of
the foregoing instrument.
| Witness my hand and official seal | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Notary Public | ||||
| Printed Name: Xxxxxxx X. Xxxxxx | ||||
| County of Residence: Xxxxxxxx |
My Commission Expires
9/20/09
State of Indiana,
County of Xxxxxxxx, XX:
Personally appeared before me, the undersigned Notary Public in and for Xxxxxxxx
County, State of Indiana, this 10th day of January, 2006, Xxxx X.
Xxxxxxxx, personally known to m e 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 therein are true.
| /s/ Xxxxxxx X. XxXxxx | ||||
| Notary Public | ||||
| Printed Name: Xxxxxxx X. XxXxxx | ||||
| County of Residence: Xxxxxxxx | ||||
My
Commission expires
9/28/12
This instrument prepared by Xxxxxx X. Xxxx, Attorney, Winchester, IN
9/28/12
This instrument prepared by Xxxxxx X. Xxxx, Attorney, Winchester, IN
The following described real estate situate in Xxxxxxxx County, Indiana, to-wit:
TRACT
1:
Sixty (60) acres of even width off the entire south end of the west half of tile southwest quarter
of Section thirteen (13), Township twenty (20) north, Range twelve (12) east.
TRACT
II
The north half of the northwest quarter of the southwest quarter of Section 13, Township 20 north,
Range 12 East, containing 20 acres, more or less; ALSO, that part of the south half of the
northwest quarter of said Section 13, Township 20 north, Range 12 east, which lies south of the
C.C.C. & St. Louis Railway containing 59.58 acres, more or less. EXCEPT, beginning at an iron rod
at the west quarter corner of Section 13, (assuming that the west line of the northwest quarter
runs north and. south), and running thence north, along the said west line, 137.66 feet to an iron
rod; thence south 87 degrees 58 minutes east, 623.10 feet to an iron pipe; thence south 1 degree 00
minutes west, 123.50 feet to an iron pipe; thence north 89 degrees 34 minutes west, 311.68 feet to
an iron pipe; thence south 71 degrees 24 minutes west 123.95 feet to an iron pipe, thence north 89
degrees 34 minutes west, 191,28 feet to an iron rod in the west line of the said southwest quarter;
thence north 00 degrees 23 minutes west, along said west line, 43.57 feet to the place of
beginning, containing an area of 2,118 acres, there being 1.875 acres in the northwest quarter and .243 acres in the southwest quarter. Containing after said exception 77.462 acres, more or less.
TRACT III:
All that part of the following described real estate lying north of the center line of the Angling
Road:
The East half of the Southwest Quarter of Section thirteen (13), Township twenty (20) North, Range
twelve (12) East, containing eight (80) acres, more or less.
EXCEPTING
THEREFROM the following described real estate:
A part of the southeast quarter of the southwest quarter of Section thirteen (13), township twenty
(20) north, Range twelve (12) east more particularly described as follows, to-wit: Beginning at a
point in the center of the Angling Road, said point being located as follows: Commencing at the
southeast corner of said southeast quarter of the southwest quarter and proceeding thence North
ninety (90) degrees West, one thousand two hundred seventy and eighty-five hundredths (1,270,85)
feet; thence proceeding north forty-four degrees twenty-six minutes forty seconds east (N 44° 26’
44” E) nine hundred fifty-four and two hundredths (954.02) feet to the place of beginning of the
tract hereafter described; thence continuing north forty-four degrees twenty-six minutes
forty seconds east (N 44°26’ 40” E) along the center of said Angling Road, four hundred
seventeen and sixteen hundredths (417.16) feet; thence proceeding south zero degrees zero minutes
west (S 00° 00’ W), two hundred ninety eight and four hundredths (298.04) feet.; thence proceeding
south ninety degrees zero minutes west (S 90°00’ W), two hundred ninety-two and thirty-two
hundredths(292.32) feet to the place of beginning, containing 1.000 aces, more or less.
EXHIBIT “A”
Prescribed by the |
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State Board of Accounts
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County Form 170 | |||
(2005) |
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| Declaration |
This form is to be signed by the preparer of a document and recorded with each document in
accordance with IC 36-2-7.5-5(a).
I, the undersigned preparer of the attached document, In accordance with IC 36-2-7.5, do hereby
affirm under the penalties of perjury:
| 1. | I have reviewed the attached document for the purpose of identifying and, to the extent permitted by law, redacting all Social Security numbers; | ||
| 2. | I have redacted, to the extent permitted by law, each Social Security number in the attached document. |
I, the undersigned, affirm under the penalties of perjury, that the foregoing declarations are
true.
| /s/ Xxxxxx X. Xxxx | ||||
| Signature of Declarant | ||||
| Xxxxxx X. Xxxx | ||||
| Printed Name of Declarant |
