OPTION TO PURCHASE REAL ESTATE
OPTION TO PURCHASE REAL ESTATE
1. For and in consideration of the sum of One Dollar and no/100 ($1.00), the receipt and sufficiency of which is acknowledged, the undersigned Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, (“Sellers”), give and grant to Great Plains Ethanol, LLC, a limited liability company, with an address of P.O. Box 217, Lennox, South Dakota 57039, its successors and assigns (“Grantee”) for a term of twelve (12) months from the date of this Option, the exclusive and irrevocable right and option to purchase the following described real estate, or any portion thereof:
A parcel of land, approximately 5.45 acres in size, located in the Northeast Quarter (NE) of Section 26, Township 99 North, Range 52 West of the Fifth P.M., Xxxxxx County, South Dakota, together with all easements, rights, and appurtenances attached thereto (the “Parcel”) Specifically, the Parcel is the area north of the 50 foot right-of-way of the South Dakota Central Railroad extending to a line between the following points; (1) Approximately 569.8 feet north of the Center Section Post; (2) Approximately 1,289.4 feet east of the Center Section Post
The Parcel is depicted in a drawing contained in the attached Exhibit A and is incorporated hereto,
2. The purchase price for the Parcel shall be $2,400.00 per acre, as determined by future survey (not including, for purposes only of computing the purchase price, any portions of the Parcel which lie within public highways, rights-of-way, streets, roads and roadways).
3. Grantee may exercise this option by sending via certified mail written notice of such exercise to the following:
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Xxxxx and. Xxxxxx Xxxxxx |
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00000 000xx Xxxxxx |
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Chancellor, SD 51015 |
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within or prior to twelve (12) months from the date of this option or prior to the expiration of any extended period as Sellers shall grant. The written notice of exercise shall identify the number of acres that Grantee or its assignee desires to purchase.
4. After execution of this agreement by Sellers, and either before or after the exercise of this option by Xxxxxxx, Grantee may enter upon the Parcel and do and perform all surveying, zoning, platting, engineering, soil borings and other tests and acts deemed necessary by Grantee to satisfy Grantee that the Parcel is suitable for the uses and purposes intended by Grantee. Any such tests and acts shall be at Grantee’s cost and expense.
5. If Grantee fails to exercise this option at any time herein permitted, Sellers shall retain all sums paid by Grantee to Sellers for this option and any extension and this agreement shall terminate with neither party having any further rights or obligations hereunder.
6. During the option period, Sellers shall not sell, encumber, or otherwise transfer or dispose of the Parcel to any individual or entity other than the Grantee.
7. Xxxxxxx’s obligation to purchase the Parcel after the exercise of the option is subject to the satisfaction, or written waiver by Grantee of the following conditions precedent:
a. Sellers’ title to the Parcel must be good, merchantable and marketable fee simple title, free and clear of any liens or encumbrances.
b. The Parcel must be finally and unconditionally zoned for Grantee’s intended uses and purposes, with all necessary classifications, variances, permissions, conditional uses and exceptions required for Grantee’s intended development, improvement and use of the Parcel. Sellers shall cooperate fully with Grantee and assist Grantee in obtaining any necessary rezoning, variances or conditional use permits. Grantee shall be responsible for paying all costs associated with obtaining such approvals. If any applications for rezoning, conditional use permits or variances are filed during the term of this option or any extension, this option shall be automatically extended to a date which is 30 days after such rezoning, variance or conditional use permit is finally granted and all time for appeals or a referendum has expired. If such rezoning, conditional use permit or variance is denied, this option shall terminate.
c. The Parcel must be surveyed and platted.
8. Within 15 days following the receipt of Xxxxxxx’s notice of the exercise of the option, Sellers will deliver to the Grantee for examination a commitment for title insurance issued by a qualified title insurer. Grantee shall have 15 days following receipt of the commitment for title insurance to identify and disclose to Sellers any title defect or encumbrance which is not acceptable to Grantee. Sellers shall then attempt to resolve any title defect or encumbrance by the closing date. Grantee or its assignee shall receive on the closing date a policy of title insurance insuring marketable title in the Grantee as purchaser of the property. Grantee shall pay the cost of the title insurance.
9. Sellers shall convey the Parcel to Grantee in fee simple, free and clear of all liens and encumbrances, by good and sufficient deed of conveyance, in the usual form of a warranty deed, subject to all restrictions and easements of record, if any. Sellers shall pay the real estate transfer fee imposed by SDCL § 43-4-21. Grantee shall pay the recording fee and all closing fees. Each party shall pay their respective attorneys’ fees.
10. Closing shall occur no later than 60 days following the later of (i) the date that Grantee gives notice of exercise of the option to purchase, (ii) the date that Sellers have corrected any legal and valid objections to title, (iii) the date that Grantee has obtained a plat of the Parcel
or (iv) the date that Grantee has obtained all final and non-appealable zoning, variances and conditional use permits identified in paragraph 7(b).
11. The purchase price shall be paid in cash at closing.
12. Sellers shall pay all unpaid real estate taxes and assessments, if any, for the year 2001 due in 2002 and for prior years. The real estate taxes and assessments, if any, which are assessed in 2002 shall paid by Xxxxxxx.
13. Grantee may freely assign its rights under this option to a third party, without the prior consent of Sellers.
14. This Option shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns.
15. This Option shall be executed in recordable form, and, if Grantee elects, may be recorded at its expense with the Xxxxxx County, South Dakota, Register of Deeds.
16. This Option shall be governed by the laws of the State of South Dakota. The parties consent to the jurisdiction of the courts of the State of South Dakota and agree that any action arising out of or to enforce this option must be brought and maintained in the circuit court sitting in Xxxxxx County, South Dakota.
17. Grantee will fence with 4 Xxxx Fence.
Dated this 12th, day of April, 2002.
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GREAT PLAINS ETHANOL, LLC |
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/s/ Xxxxxx Xxxxx |
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President |
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/s/ Xxxxx X. Xxxxxx |
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Xxxxx X. Xxxxxx |
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/s/ Xxxxxx X. Xxxxxx |
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Xxxxxx X. Xxxxxx |
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STATE OF SOUTH DAKOTA |
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COUNTY OF XXXXXX |
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On this the 12th day of April, 2002, before me, the undersigned officer, personally appeared Xxxxxx Xxxxx known to me to be the President of Great Plains Ethanol, LLC, a limited liability company, that is described in and that executed the within instrument and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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/s/ Xxxxxxx Xxxxx |
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Notary Public - South Dakota |
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My Commission Expires: November 7, 2002
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STATE OF SOUTH DAKOTA |
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:SS |
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COUNTY OF XXXXXX |
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On this the 12th day of April, 2002, before me personally appeared Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, known to me to be the persons who are described in, and who executed the within instrument and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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/s/ Xxxxxxx Xxxxx |
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Notary Public - South Dakota |
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My Commission Expires: November 7, 2002
EXHIBIT A
[DIAGRAM OF OPTIONED PARCEL]
AMENDMENT TO
OPTION TO PURCHASE REAL ESTATE
This Amendment to Option to Purchase Real Estate is made on this 30th day of May, 2002, by and between Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (“Xxxxxx”) and Great Plains Ethanol, LLC, a South Dakota limited liability company (“Great Plains.”)
RECITALS:
A. In accordance with the terms and conditions of an Option to Purchase Real Estate dated the 12th day of April, 2002 (the “Option”), Jibbens granted to Great Plains an option to purchase the following described real property:
A parcel of land, approximately 5.45 acres in size, located in the Northeast Quarter (NE¼) of Section 26, Township 99 North, Range 52 West of the Fifth P.M., Xxxxxx County, South Dakota, together with all easements, rights, and appurtenances attached thereto (the “Parcel”). Specifically, the Parcel is the area north of the 50 ft. right-of-way of the South Dakota Central Railroad extending to a line between the following points: (1) approximately 569.8 ft. north of the center section post; and (2) approximately 1,289.4 ft. east of the center section post.
B. Under the terms of the Option, the purchase price for the Parcel is $2,400.00 per acre to be paid in cash at the time of closing.
C. For the benefit of Jibbens, the parties now desire to exchange the Parcel for another piece of real property identical in acreage to the Parcel, which will allow Xxxxxxx to execute a tax-free, like-kind exchange pursuant to Internal Revenue Code § 1031, instead of receiving cash at closing.
NOW, THEREFORE, the parties agree as follows:
1. Upon the exercise of the Option, Great Plains shall convey to Jibbens the following described real property as payment for the Parcel:
A parcel of land approximately 5.45 acres in size, located in the Southeast Quarter (SE¼) of Section 26, Township 99 North, Range 52 West of the Fifth P.M., Xxxxxx County, South Dakota, together with all easements, rights and appurtenances attached thereto (the “Exchange Parcel”). Specifically, the Exchange Parcel is located within a portion of the area north of the 50 ft. right-of-way of the South Dakota Central Railroad which intersects the quarter.
The Exchange Parcel is depicted in a drawing contained in the attached Exhibit A and is incorporated herein by reference.
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Great Plains shall convey to Jibbens the Exchange Parcel in fee simple, free and clear of all liens and encumbrances, by good and sufficient deed of conveyance, in the usual form of a warranty deed, subject to all restrictions and easements of record, if any. |
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All other terms and conditions of the Option shall remain in full force and effect except as modified in this Amendment. |
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JIBBENS: |
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/s/ Xxxxx X. Xxxxxx |
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Xxxxx X. Xxxxxx |
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/s/ Xxxxxx X. Xxxxxx |
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Xxxxxx X. Xxxxxx |
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GREAT PLAINS ETHANOL, LLC |
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By: |
/s/ Xxxxx Xxxxxx |
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CEO |
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STATE OF SOUTH DAKOTA |
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) :ss |
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COUNTY OF MINNEHAHA |
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On this the 5th day of June, 2002, before me, the undersigned officer, personally appeared Xxxxx Xxxxxx, known to me to be the CEO of Great Plains Ethanol, LLC, a limited liability company, that is described in and that executed the within instrument and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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/s/ Xxxxx X. Xxxxxxxxxx |
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Notary Public - South Dakota |
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My Commission Expires: June 12, 2004
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STATE OF SOUTH DAKOTA |
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COUNTY OF XXXXXX |
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On this the 30th day of May, 2002, before me personally appeared Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, known to me to be the persons who are described in, and who executed the within instrument and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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/s/ X.X. Xxxxxxxxxx |
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Notary Public - South Dakota |
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My Commission Expires: October 27, 2008
SECOND AMENDMENT TO OPTION
TO PURCHASE REAL ESTATE
This Second Amendment to Option to Purchase Real Estate is made on this 19th day of June, 2002, by and between Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (“Jibbens”) and Great Plains Ethanol, LLC, a South Dakota limited liability company (“Great Plains”).
WITNESSETH:
WHEREAS, in accordance with the terms and conditions of an Option to Purchase Real Estate dated the 12th day of April, 2002 (the “Option”), Jibbens granted to Great Plains an option to purchase the following described real property:
Tract One (1) in the Northeast Quarter (NE¼) of Section 26, Township 99 North, Range 52 West of the Fifth P.M., Xxxxxx County, South Dakota, together with all easements, rights and appurtenances attached thereto (the “Xxxxxx Parcel”).
WHEREAS, the parties agreed to modify the terms of the Option by entering into an Amendment to Option to Purchase Real Estate dated the 30th day of May, 2002, (the “Amendment”), which granted Great Plains the right to exchange the following described property for the Xxxxxx Parcel, instead of paying cash at closing:
Tract Two (2) in the Southeast Quarter (SE¼) of Section 26, Township 99 North, Range 52 West of the Fifth P.M., Xxxxxx County, South Dakota, together with all easements, rights and appurtenances attached thereto (the “Great Plains Parcel”).
WHEREAS, for the benefit of Jibbens, the parties have agreed to modify the terms of both the Option and the Amendment in accordance with the terms provided below;
NOW, THEREFORE, it is agreed as follows:
1. Upon the exercise of the Option, Great Plains agrees to install a fence which extends along the entire xxxxx xxxxxx of the Great Plains Parcel in addition to the fence that Great Plains shall install along the north border of the Xxxxxx Parcel. Construction of such fence shall be completed by December 31, 2002, and Great Plains shall be responsible for all costs for materials and installation. The specifications of the fence shall be mutually agreed upon by the parties prior to closing.
2. All of the provisions of the Option and the Amendment shall remain in full force and effect, except as modified in this Second Amendment.
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JIBBENS: |
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/s/ Xxxxx X. Xxxxxx |
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Xxxxx X. Xxxxxx |
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/s/ Xxxxxx X. Xxxxxx |
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Xxxxxx X. Xxxxxx |
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GREAT PLAINS ETHANOL, LLC |
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By: |
/s/ Xxxxx Xxxxxx |
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CEO |
