AGREEMENT OF RIGHT OF FIRST PURCHASE AND RIGHT OF FIRST REFUSAL
EXHIBIT
10.6
AGREEMENT
OF RIGHT OF FIRST
PURCHASE
AND RIGHT OF FIRST REFUSAL
THIS
AGREEMENT OF RIGHT OF FIRST PURCHASE AND RIGHT OF FIRST REFUSAL
(the
“Agreement”)
is
made effective as of the 30th day of April, 2007, by and between Show Me
Ethanol, LLC, a Missouri limited liability company (“Show
Me Ethanol”),
with
an address at ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and ▇▇▇-▇▇▇▇▇▇▇ County Grain
Growers, Inc., a Missouri cooperative association (“▇▇▇-▇▇▇▇▇▇▇”),
with
an address at ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W
I T N E
S S E T H:
WHEREAS,
Show Me Ethanol is the owner of fee simple title to certain real property,
and
the owner of easements in certain real property, all as described in
Schedule
1,
attached hereto and incorporated herein, together with all improvements thereon
and all executory contracts and agreements relating thereto (collectively,
the
“Ethanol
Plant Property”);
and
WHEREAS,
▇▇▇-▇▇▇▇▇▇▇ is the owner of fee simple title to certain real property, and
the
owner of easements in certain real property, all as described in Schedule
2,
attached hereto and incorporated herein, together with all improvements thereon
and all executory contracts and agreements relating thereto (collectively,
the
“Grain
Elevator Property,”
and
together with the Ethanol Plant Property, the “Properties”);
and
WHEREAS,
Show Me Ethanol desires to grant to ▇▇▇-▇▇▇▇▇▇▇ a
right
of first purchase and a right of first refusal to purchase all or any part
of
the Ethanol Plant Property, on the terms and subject to the conditions set
forth
herein; and
WHEREAS,
▇▇▇-▇▇▇▇▇▇▇ desires to grant to Show
Me
Ethanol a
right
of first purchase and a right of first refusal to purchase all or any part
of
the Grain Elevator Property, on the terms and subject to the conditions set
forth herein.
NOW,
THEREFORE, in consideration of the mutual promises set forth herein, and in
consideration of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Rights
of First Purchase.
For the
period beginning as of the date of this Agreement and continuing until 11:59
p.m. Central prevailing time on April 30, 2027 (the “Rights
Period”):
(a) Show
Me
Ethanol will not offer for transfer, sale, alienation, assignment, or other
disposition the Ethanol Plant Property or any portion thereof at any price
and
upon any term or condition without first offering the Ethanol Plant Property
for
sale to ▇▇▇-▇▇▇▇▇▇▇ at the price and upon the terms and conditions under which
the Ethanol Plant Property will be offered. In such case, Show Me Ethanol shall
deliver to ▇▇▇-▇▇▇▇▇▇▇ a written offer to sell marketable fee title to the
Ethanol Plant Property at a price and upon such terms as are identical to those
on which Show Me Ethanol will offer the Ethanol Plant Property for sale to
third
parties (the “Purchase
Offer Notice to ▇▇▇-▇▇▇▇▇▇▇”).
▇▇▇-▇▇▇▇▇▇▇’▇ right of first purchase may be exercised by giving written
notice to Show Me Ethanol, within thirty (30) days of ▇▇▇-▇▇▇▇▇▇▇’▇ receipt of
the Purchase Offer Notice to ▇▇▇-▇▇▇▇▇▇▇, that ▇▇▇-▇▇▇▇▇▇▇ intends to purchase
the Ethanol Plant Property upon terms identical to those contained in the
Purchase Offer Notice to ▇▇▇-▇▇▇▇▇▇▇; and
1
(b) ▇▇▇-▇▇▇▇▇▇▇
will not offer for transfer, sale, alienation, assignment, or other disposition
the Grain Elevator Property or any portion thereof at any price and upon any
term or condition without first offering the Grain Elevator Property for sale
to
Show Me Ethanol at the price and upon the terms and conditions under which
the
Grain Elevator Property will be offered. In such case, ▇▇▇-▇▇▇▇▇▇▇ shall deliver
to Show Me Ethanol a written offer to sell marketable fee title to the Grain
Elevator Property at a price and upon such terms as are identical to those
on
which ▇▇▇-▇▇▇▇▇▇▇ will offer the Grain Elevator Property for sale to third
parties (the “Purchase
Offer Notice to Show Me Ethanol,”
and
together with the Purchase Offer Notice to ▇▇▇-▇▇▇▇▇▇▇, the “Purchase
Offer Notices”).
Show
Me Ethanol’s right of first purchase may be exercised by giving written
notice to ▇▇▇-▇▇▇▇▇▇▇, within thirty (30) days of Show Me Ethanol’s receipt of
the Purchase Offer Notice to Show Me Ethanol, that Show Me Ethanol intends
to
purchase the Grain Elevator Property upon terms identical to those contained
in
the Purchase Offer Notice to Show Me Ethanol.
In
the
event of either party’s exercise of its right of first purchase, the parties
shall proceed to close the sale upon the terms and conditions contained in
the
applicable Purchase Offer Notice. The parties agree that the closing date for
such sale and purchase shall be set for a date mutually agreeable to the parties
not to exceed sixty (60) days following the expiration of the period during
which the exercising party may exercise its right of first purchase. If the
party exercising its right of first purchase does not consummate the transaction
and the selling party fails to consummate the transaction to a third party
on
the terms contemplated in the applicable Purchase Offer Notice, this Agreement
shall remain in effect and such party’s right of first purchase under this
Agreement shall continue during the Rights Period. If a party does not, during
the applicable period during which such party may exercise its right of first
purchase, give the other party written notice of its election to exercise its
first right of purchase, such party will be deemed to have automatically waived
such right, but such party’s right of first refusal, as described in Section 2
of this Agreement, shall remain in full force and effect. In such event as
either party may waive its right hereunder as set forth in the above sentence,
such waiving party will, upon written request by the other party hereto, execute
and deliver to such other party a recordable release and termination of this
Agreement with respect to the right of first purchase granted such executing
party hereunder and with respect to the right of first refusal granted such
executing party hereunder.
2. Rights
of First Refusal.
During
the Rights Period:
(a) Show
Me
Ethanol will not transfer, sell, alienate, assign, give, bequeath, or otherwise
dispose of the Ethanol Plant Property or any portion thereof to any third party
that has made a bona fide, legally binding purchase offer (“Third-Party
Offer”)
(which
Show Me Ethanol shall require be submitted in writing by such third party)
without first offering the Ethanol Plant Property for sale to ▇▇▇-▇▇▇▇▇▇▇ upon
the same terms and conditions set forth in such Third-Party Offer. In such
case,
Show Me Ethanol shall deliver a true and accurate copy of such Third-Party
Offer
to ▇▇▇-▇▇▇▇▇▇▇ and simultaneously deliver a written offer to ▇▇▇-▇▇▇▇▇▇▇ to
sell
the Ethanol Plant Property at a price and upon such terms as are identical
to
those set forth in the Third-Party Offer (collectively, the “Offer
Notice to ▇▇▇-▇▇▇▇▇▇▇”).
▇▇▇-▇▇▇▇▇▇▇’▇ right of first refusal may be exercised by giving written
notice to Show Me Ethanol, within thirty (30) days of ▇▇▇-▇▇▇▇▇▇▇’▇ receipt of
the Offer Notice to ▇▇▇-▇▇▇▇▇▇▇, that ▇▇▇-▇▇▇▇▇▇▇ intends to purchase the
Ethanol Plant Property upon terms identical to those contained in the
Third-Party Offer; and
(b) ▇▇▇-▇▇▇▇▇▇▇
will not transfer, sell, alienate, assign, give, bequeath, or otherwise dispose
of the Grain Elevator Property or any portion thereof to any third party that
has made a Third-Party Offer (which ▇▇▇-▇▇▇▇▇▇▇ shall require be submitted
in
writing by such third party) without first offering the Grain Elevator Property
for sale to Show Me Ethanol upon the same terms and conditions set forth in
such
Third-Party Offer. In such case, ▇▇▇-▇▇▇▇▇▇▇ shall deliver a true and accurate
copy of such Third-Party Offer to Show Me Ethanol and simultaneously deliver
a
written offer to Show Me Ethanol to sell the Grain Elevator Property at a price
and upon such terms as are identical to those set forth in the Third-Party
Offer
(collectively, the “Offer
Notice to Show Me Ethanol,”
and
together with the Offer Notice to ▇▇▇-▇▇▇▇▇▇▇, the “Offer
Notices”).
Show
Me Ethanol’s right of first refusal may be exercised by giving written
notice to ▇▇▇-▇▇▇▇▇▇▇, within thirty (30) days of Show Me Ethanol’s receipt of
the Offer Notice to Show Me Ethanol, that Show Me Ethanol intends to purchase
the Grain Elevator Property upon terms identical to those contained in the
Third-Party Offer.
2
In
the
event of either party’s exercise of its right of first refusal, the parties
shall proceed to close the sale upon the terms and conditions contained in
the
applicable Offer Notice. If the closing date specified in the Third-Party Offer
is earlier than the time for acceptance of the applicable Offer Notice, the
parties agree that the closing date shall be set for a date mutually agreeable
to the parties not later than ninety (90) days after the date of the applicable
Offer Notice. If the party exercising its right of first refusal does not
consummate the transaction and the third-party offeror fails to consummate
the
transaction contemplated by the Third-Party Offer, this Agreement shall remain
in effect and such party’s right of first refusal under this Agreement shall
continue during the Rights Period. If a party does not, during the applicable
Exercise Period, give the other party written notice of its election to exercise
its first right of refusal, such party will be deemed to have automatically
waived such right as to the Third-Party Offer. In such event as either party
may
waive its right hereunder as set forth in the above sentence, such waiving
party
will, upon written request by the other party hereto, execute and deliver to
such other party a recordable release and termination of this Agreement with
respect to the right of first purchase granted such executing party hereunder
and with respect to the right of first refusal granted such executing party
hereunder.
3. Title.
Each
party hereby represents and warrants that it has good and indefeasible title
to
its Property in fee simple or in easement, as specifically set forth in
Schedules
1
and
2,
and
with full power to sell and convey it, including the right to grant the rights
provided herein; its Property is free of any lien, right or other interest
which
might foreclose the right of first purchase or the right of first refusal
granted hereby or otherwise result in the termination of the right of first
purchase or the right of first refusal granted hereby with the other party’s
consent.
4. Notices.
All
notices required under this Agreement, and all approvals and other
communications required or permitted to be given hereunder, must be in writing
and be mailed by registered or certified mail, postage prepaid, return receipt
requested, addressed to the receiving party at the addresses first set forth
hereinabove for such party. Any notice will be deemed given on the day after
the
date such notice is mailed as hereinbefore provided.
5. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their heirs, executors, personal representatives, successors, and assigns.
6. Amendment.
Any
amendment(s) to this Agreement shall be effective only if set forth in writing
and signed by each party hereto.
7. Severability.
Each
provision of this Agreement shall be considered severable, and if for any reason
any provision that is not essential to the effectuation of the basic purposes
of
the Agreement is determined to be invalid and contrary to any existing or future
law, such invalidity shall not impair the operation of or affect those
provisions of this Agreement that are valid.
8. No
Waiver.
No
party hereto shall be deemed to have waived any right hereunder unless such
waiver shall be in writing and signed by such party. The waiver by any party
of
any breach of this Agreement shall not operate or be construed to be a waiver
of
any subsequent breach.
9. Governing
Law.
This
Agreement shall be construed and enforced in accordable with the laws of the
State of Missouri.
10. Recordation.
Following execution hereof each party will execute a Memorandum of Right of
First Purchase and Right of First Refusal dated as of even date hereof and
in
form agreed to by both parties, and Show Me Ethanol will cause such instrument
to be recorded in the real estate records of ▇▇▇▇▇▇▇ County, Missouri, and
thereafter deliver a copy of such recorded document to the other party to
▇▇▇-▇▇▇▇▇▇▇.
11. Headings
and Captions.
All
headings and captions in this Agreement are for convenience of reference only
and are not intended to qualify the meaning of any provision.
12. Counterparts.
This
Agreement and any amendments hereto may be executed in several counterparts,
each of which shall be deemed to be an original copy, and all of which together
shall constitute one agreement binding on all parties, hereto, notwithstanding
that all the parties shall not have signed the same counterpart.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
3
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first written above.
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SHOW
ME ETHANOL:
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a
Missouri limited liability company
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By:
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/s/▇▇▇▇▇
▇▇▇▇▇▇
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Printed
Name:
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▇▇▇▇▇
▇▇▇▇▇▇
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Its:
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Chairman
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▇▇▇-▇▇▇▇▇▇▇:
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(SEAL)
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▇▇▇-▇▇▇▇▇▇▇
County Grain Growers, Inc.,
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a
Missouri cooperative association
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By:
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/s/▇▇▇▇▇
▇▇▇▇▇▇▇
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Printed
Name:
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▇▇▇▇▇
▇▇▇▇▇▇▇
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Its:
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President
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4
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STATE
OF MISSOURI
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)
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)
SS.
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COUNTY
OF Ray
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)
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On
this
30th
day of
April
in the
year 2007, before me, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
a Notary
Public in and for said state, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of
Show
Me Ethanol, LLC, a Missouri limited liability company, known to me to be the
person who executed the within AGREEMENT OF RIGHT OF FIRST PURCHASE AND RIGHT
OF
FIRST REFUSAL in behalf of said limited liability company and acknowledged
to me
that he/she executed the same for the purposes therein stated.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at
my
office in Richmond,
Missouri,
the day
and year last above written.
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/s/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Printed
Name:▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Notary
Public in and for
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said
County and State
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My
Commission Expires:
November
2, 2007
(The
Notary Public must type or print his/her name immediately beneath his/her
signature.)
5
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STATE
OF Missouri
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)
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)
SS.
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COUNTY
OF Ray
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)
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On
this
30th
day of
April,
2007,
before me, appeared ▇▇▇▇▇
▇▇▇▇▇▇▇,
to me
personally known, who being by me duly sworn, did say that he is the
President
of
▇▇▇-▇▇▇▇▇▇▇ County Grain Growers, Inc., a Missouri cooperative association,
that
said instrument was signed and sealed on behalf of said cooperative association
by authority of its Board of Directors, and acknowledged said instrument to
be
the free act and deed of said cooperative association.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at
my
office in Richmond,
Missouri,
the day
and year last above written.
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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||
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Printed
Name:▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Notary
Public in and for
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said
County and State
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My
Commission Expires:
November
2, 2007
(The
Notary Public must type or print his/her name immediately beneath his/her
signature.)
6
SCHEDULE
1
Ethanol
Plant Property
That
portion of the North Half in Section 35, Township 53 North of the Base Line,
Range 23 West of the Fifth Principal Meridian, ▇▇▇▇▇▇▇ County, Missouri,
described as follows: Beginning at a point on the East line of the Northwest
Quarter in said Section 35 that is N01º50’28”E, 70.82 feet from the Center of
said Section 35, said point being on the Northerly right of way line of Missouri
Highway 24; thence Westerly along a curve to the right, having a radius of
1597.02 feet, through a central angle of 12º15’59”, an arc length of 341.90 feet
along said r.o.w. line; thence N87º48’53”W, 43.20 feet along said r.o.w. line;
thence N02º11’07”E, 5.00 feet along said r.o.w. line; thence N87º48’53”W, 99.87
feet along said r.o.w. line; thence N00º28’54”W, 482.81 feet; thence
S83º30’24”W, 677.88 feet; thence N07º56’29”W, 255.90 feet; thence N81º47’56”E,
346.62 feet; thence N49º30’21”E, 62.47 feet; thence N13º53’07”E, 378.24 feet;
thence N23º25’30”E, 129.10 feet; thence N07º49’59”W, 208.97 feet; thence
S74º43’16”E, 333.68 feet; thence S76º58’57”E, 108.16 feet; thence N89º54’09”E,
169.98 feet; thence N75º36’56”E, 302.17 feet; thence S47º13’25”E, 294.66 feet;
thence S15º58’29”W, 876.92 feet; thence N77º34’13”W, 164.41 feet to the West
line of the Northeast Quarter in said Section 35; thence S01º50’28”W, 384.70
feet along said West line and along said East line to the point of beginning.
Said portion contains 30.00 acres and is subject to all easements, restrictions,
reservations and right of ways of record.
7
SCHEDULE
2
Grain
Elevator Property
All
of
the Northwest Quarter of Section Thirty-five, Township Fifty-three, Range
Twenty-three, ▇▇▇▇▇▇▇ County, Missouri, excepting therefrom the right-of-way
of
the ▇▇▇▇▇▇▇▇, Topeka and Santa Fe Railroad Company, containing Seven (7)
acres,
more or less, as now located and constructed across said premises, and subject
to the easements granted the Prairie Oil and Gas Company and also subject
to the
right-of-way granted Prairie Pipe Line Company, said premises containing
in the
aggregate after said exceptions One Hundred Fifty-three (153) acres, more
or
less, subject to existing public roadways. Also subject to easement for public
water supply.
AND
also the following described tract: (see attached)
8
ALL
OF
THE FOLLOWING DESCRIBED ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇.▇. ▇▇▇▇▇▇▇
#▇▇:
THE
NORTHEAST QUARTER (NE 1/4) OF SECTION THIRTY-FIVE (35), TOWNSHIP FIFTY-THREE
(53) NORTH,
RANGE TWENTY-THREE (23) WEST OF THE FIFTH PRINCIPAL MERIDIAN, ▇▇▇▇▇▇▇ COUNTY,
MISSOURI;
EXCEPTING THEREFROM THAT PART CONVEYED TO THE STATE OF MISSOURI FOR HIGHWAY
PURPOSES AS DESCRIBED IN INSTRUMENT RECORDED IN BOOK 10, PAGE 24 OF THE
RECORDS
IN THE RECORDER OF DEEDS OFFICE, ▇▇▇▇▇▇▇ COUNTY, MISSOURI; EXCEPTING
THEREFROM
CONVEYANCE DATED NOVEMBER 4, 1983, RECORDED IN BOOK 461, PAGE 73 OF THE
RECORDS
IN THE RECORDER OF DEEDS OFFICE, ▇▇▇▇▇▇▇ COUNTY, MISSOURI, AND DESCRIBED
AS
AN
IRREGULAR TRACT OF LAND SITUATED IN THE NORTHEAST QUARTER (NE 1/4) OF SECTION
35, TOWNSHIP
53 NORTH,
RANGE 23 ▇▇▇▇, ▇▇▇▇▇▇▇ COUNTY, MISSOURI, MORE PARTICULARLY DESCRIBED
AS FOLLOWS: BEGINNING AT AN IRON BAR SET ON THE NORTHERLY RIGHT-OF-WAY
LINE
OF
U.S. HIGHWAY #24, 2200.20 FEET SOUTH AND 1061.20 FEET EAST FROM AN IRON BAR
FOUND AT
THE
NORTHWEST CORNER OF THE NORTHEAST QUARTER OF SECTION 35, T.53N., R.23W.;
THENCE
N.09°-28’-50”E.,
ALONG AN EXISTING FENCE LINE A DISTANCE OF 258.70 FEET TO AN IRON BAR; THENCE
N.48°-12’-13” E., ALONG SAID FENCE LINE A DISTANCE OF 14.71 FEET TO AN IRON
BAR; THENCE
S.81°-21’-46”E., A DISTANCE OF 315.80 FEET TO AN IRON BAR; THENCE
S.09°-28’-40”W., A DISTANCE
OF 167.40 FEET TO AN IRON BAR SET ON THE NORTH RIGHT-OF-WAY LINE OF SAID
U.S.
HIGHWAY
#24; THENCE S.82°-42’-28”W., ALONG SAID RIGHT-OF-WAY LINE A DISTANCE OF 169.16
FEET TO AN IRON BAR;
THENCE
ALONG THE ARC OF A 01°-58’-09” CURVE TO THE LEFT A DISTANCE OF 140.75
FEET TO AN IRON BAR; THENCE S.10°-33’-50” E, A DISTANCE OF 5.0 FEET TO AN IRON
BAR; THENCE
ALONG THE ARC OF A 01°-58’-21” CURVE TO THE LEFT, A DISTANCE OF 33.46 FEET TO
THE POINT
OF
BEGINNING AND CONTAINING WITHIN THE ABOVE DESCRIBED BOUNDARIES OF 1.6087
ACRES;
SUBJECT TO ALL PUBLIC AND PRIVATE ROADS OR EASEMENTS AS THE SAME MAY NOW
BE
LOCATED, AND SPECIFICALLY SUBJECT TO EASEMENTS
GRANTED KANSAS CITY POWER AND LIGHT COMPANY
BY INSTRUMENTS RECORDED IN BOOK 286, PAGE 437 AND BOOK 392, PAGE 384, OF
THE
DEED RECORDS IN THE RECORDER OF DEEDS OFFICE, ▇▇▇▇▇▇▇ COUNTY, MISSOURI; SUBJECT
TO EASEMENT
GRANTED PUBLIC WATER SUPPLY DISTRICT NO.l RECORDED IN BOOK 407, PAGE 150,
OF
THE
DEED
RECORDS IN THE RECORDER OF DEEDS OFFICE, ▇▇▇▇▇▇▇ COUNTY,
MISSOURI.
but
except any part of either of the above described tracts which is described
on
Schedule 1 attached hereto.
9