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Exhibit 10.23
Page 1
Real Estate Contract
City of Garnett - East Kansas Agri-Energy L.L.C.
REAL ESTATE CONTRACT
THIS CONTRACT made and entered into this 16th day of February, 2005 by and
between City of Garnett, Kansas, a Kansas Municipal Corporation, herein after
called "Seller", whether one or more, and East Kansas Agri-Energy, LLC, a Kansas
Limited Liability Company, herein after called "Buyer", whether one or more.
WITNESSETH:
1. Seller has sold and agrees to convey title to Buyer as hereinafter set
forth to the following described real estate located in Anderson County, Kansas,
to-wit:
Lot 5 and Lot6A, less the North 100' of said Lot 6A,
Golden Prairie Industrial Park, City of Garnett,
Anderson County, Kansas,
Subject, however, to easements and restrictions of record.
2. Buyer agrees to purchase the aforesaid real estate and pay for the same as
hereinafter provided.
3. The price of $90,000.00 is to be paid as follows, to-wit:
(a) The sum of $90,000.00 to be paid at the time of closing.
4. Seller shall convey title to said real estate to Buyer free of all
encumbrances, except easements and restrictions of record, by a general warranty
deed which shall be delivered to Buyer at the time of closing.
5. The closing of this transaction shall be handled by Anderson County
Abstract Company, Garnett, Kansas, with the closing fees to be held one-half by
each of the parties hereto. This transaction shall be closed on or before the
18th day of March, 2005, and possession shall be delivered at the time of
closing.
6. Seller shall promptly furnish a standard owner's policy of title insurance
to Buyer which will insure Buyer against loss or damage to the extend of the
purchase price by reason of defects in Seller's title to said real estate,
subject to the above exceptions. Such owner's policy shall be conclusive
evidence of marketable title in Seller, subject only to the aforesaid
exceptions; provided, however, that in the event Seller furnishes title
insurance, Seller shall deliver a signed commitment for said title insurance
policy from a title company authorized to do business in Kansas for examination
by Buyer, in which event, Seller shall deliver the owner's title policy to Buyer
promptly after closing. Upon receipt of said title insurance commitment, Buyer
shall have a reasonable time, not to exceed 5 days, to
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Real Estate Contract
City of Garnett - East Kansas Agri-Energy L.L.C.
examine the same and return it to Seller with any written objections
relative to the marketability of the title. Any objections not so furnished
shall be deemed to be waived by Buyer. If valid objections are made to the
marketability of the title as aforesaid, Seller shall have a reasonable time to
satisfy any valid objections to the title and to make the title marketable; if
legal proceedings are necessary, such proceedings shall be begun promptly and
diligently prosecuted to completion. In the event Seller is unable to furnish
marketable title as herein provided, this contract shall become null and void,
and thereupon the escrow agent shall return to Buyer all monies paid by them and
to Seller the deed, and any other documents shall be returned to the party who
deposited the same with the escrow agent, whereupon all parties shall be
released from further liability hereunder.
7. Taxes and assessments for the calendar year next preceding the calendar
year in which closing occurs and all preceding years shall be paid by Seller and
the current year's taxes and assessments shall be prorated as of the date of
closing. If the current year's taxes and assessments are not determinable at the
time of closing, a proration of taxes and assessments shall be made and based
upon the next preceding year's taxes and assessments.
8. Buyer shall not sell, assign or transfer this contract or any interest
under it or any interest in or to said property, without first obtaining the
written consent of Seller.
9. In the event Buyer fails to comply with any of the terms of this contract,
then this contract shall, at the option of Seller, become immediately null and
void, whereupon all rights of Buyer hereunder shall end and all monies paid
hereunder shall be retained by Seller as rent and as liquidated damages for the
said nonperformance and Seller shall be entitled to retain possession of said
real estate and upon said election all parties shall be released from further
liability hereunder. If Seller does not exercise its option to terminate this
contract as aforesaid, Seller may pursue such other rights as he may have and
shall be entitled to whatever other legal or equitable remedies are available to
him.
10. The parties acknowledge that the Seller owns the West 450 feet of Lot Two
(2), Golden Prairie Industrial Park, City of Garnett, Anderson County, Kansas,
which lot is currently zoned for light industrial use and Seller agrees that for
so long as it is the owner of this lot, it will not seek to change the zoning of
the lot to allow a use other than that contemplated by the present zoning or
another industrial use, provided however that the zoning change will not be
sought for purposes of placing residential housing on the property while Seller
is the owner of it. Seller further grants to Buyer the right of first refusal to
acquire the West 450 feet of said Lot Two (2) which right shall be exercised as
follows:
a. If Seller enters into a contract to sell all or any part of the West
450 feet of said Lot Two (2), it shall grant Buyer the right of first
refusal to
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Real Estate Contract
City of Garnett - East Kansas Agri-Energy L.L.C.
purchase the property being sold under the same terms and
conditions as under the proposed contract for sale.
b. In the event Seller shall elect to sell the subject property, Seller
will communicate in writing to Buyer the terms of the written offer received for
the purchase of said property, and Buyer shall thereafter have a period of
thirty days in which to elect to purchase the property under the same terms and
conditions.
c. In the event Buyer does not elect to purchase the property under these
terms and conditions, Seller will then be free to sell the property under those
same terms and conditions.
11. Seller represents and warrants that to the best of its knowledge there
have been no activities conducted on or about the property which have caused or
could have caused the property to become contaminated by any hazardous or toxic
waste (as such terms are presently defined by applicable federal and state law)
while it has been in title. Seller agrees to indemnify and hold Buyer harmless
from any damage, cost, or expense that Buyer may incur as the result of the
necessity of remedying of any environmental hazard on the property that
originated while Seller was the owner of the property.
12. Time is made of the essence of this contract, an this contract shall be
binding upon the parties hereto, their heirs, executors, administrators,
successors and assigns.
13. This agreement may be executed in counterparts, but shall constitute and be
one agreement notwithstanding the fact that it may be separately executed.
IN WITNESS WHEREOF, the parties have signed their names as of the day
and year first above written.
SELLER: BUYER:
CITY OF GARNETT EAST KANSAS AGRI-ENERGY, L.L.C.
By /s/ Michael L. Norman By /s/ William R. Pracht
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Michael L. Norman, Mayor William R. Pracht, Chairperson
ATTEST:
/s/ Joyce E. Martin
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Joyce E. Martin, Clerk
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Real Estate Contract
City of Garnett - East Kansas Agri-Energy L.L.C.
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF ANDERSON )
BE IT REMEMBERED that on this 16th day of February, 2005, before me,
the undersigned, a notary public in and for the county and state aforesaid, came
Michael L. Norman as Mayor and Joyce E. Martin as Clerk of the City of Garnett,
Kansas, who are personally known to me to be the same person who executed the
above and foregoing contract on behalf of the City of Garnett, Kansas, as
Seller.
IN TESTIMONY WHEREOF, I have hereto set my hand and affixed my notarial
seal the day and year last above written.
Term Expires: 8-27-08 /s/ Nancy Hermreck
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Nancy Hermreck, Notary Public
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS:
COUNTY OF ANDERSON )
BE IT REMEMBERED that on this 16th day of February, 2005, before me,
the undersigned, a notary public in and for the county and state aforesaid, came
William R. Pracht, Chairperson of East Kansas Agri-Energy, L.L.C., a Kansas
Limited Liability Company, who is personally known to me to be the same person
who executed the above and foregoing contract on behalf of East Kansas
Agri-Energy, L.L.C. as Buyer.
IN TESTIMONY WHEREOF, I have hereto set my hand and affixed my notarial
seal the day and year last above written.
Term Expires: 8-27-08 /s/ Nancy Hermreck
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Nancy Hermreck, Notary Public