Exhibit 10.11
PLANTING AGREEMENT FOR CROP YEAR 2005
THIS AGREEMENT is made this 28th day of March, 2005, by and between Xxxxxxx
Brothers Partnership, (hereinafter referred to as "Leasee") and Advanced
BioEnergy, LLC, a Delaware limited liability company (hereinafter referred to as
"Optionee").
W I T N E S S E T H:
WHEREAS, Leasee is the sole leaseholder of real estate further described as the
North half of the Northeast quarter and Southwest quarter of Northeast quarter
of Section 36-8-3d , Fillmore County, Nebraska (hereinafter referred to as
"Premises"); and
WHEREAS, Optionee desires to acquire said property from WDB Inc. in accordance
with the terms and conditions of signed Option Agreement of which a copy will be
provided.
IN CONSIDERATION of the covenants and promises contained hereafter, it is
agreed:
1. CROP: That Leasee will plant beans on the Premises for the crop year
of 2005 and will agree not to plant seed corn or commercial corn as
was previously planned.
2. CONSIDERATION: Advanced BioEnergy will pay $150 per plantable acre for
loss of potential profit from planting seed corn or commercial corn.
Advanced BioEnergy will also pay $40 per acre for cost already
incurred for fertilizer that was put down in anticipation of a seed
corn crop for 2005. It is estimated that 110 acres of land are farmed
on the Premises. The parties agree that there is valid and sufficient
consideration for this Agreement based on this sum, and the mutual
obligations herein contained. Payment will be made within 15 days of
receiving this fully executed agreement.
3. INSPECTION RIGHTS: Optionee shall, during the term of this Option
Agreement, have the unrestricted rights to enter upon the subject
property for purposes of performing any and all due diligence
necessary to Optionee's determination to purchase the subject property
in its sole discretion including, but not limited to, the taking of
soil samples. Optionee understands and agrees that during the term of
this Option Agreement Leasee shall have the full and unrestricted
right to plant irrigated beans on the subject property. Should
Optionee, as a part of its inspection, damage any of the growing crop
on the subject property, Optionee shall be responsible for the payment
of the fair market value thereof to Optionor as calculated under the
terms of paragraph 4(k) above.
4. CROP DAMAGE: In the event that Optionee's due diligence and/or closing
and conveyance of the Property to Optionee shall occur after Leasee
plants crops, but before harvest of those crops, the parties hereto
mutually agree that Leasee shall have the right, upon notice to the
Optionee and at the Leasee's convenience, to harvest any crops not
destroyed, directly or indirectly, by the Optionee in the process of
its due diligence and/or its constructing of the ethanol plant and
related improvements thereto. The Optionee shall have no duty to
preserve any of such crops, and the Leasee accepts as liquidated
damages (in lieu of any and all other damages) an amount equal to 120%
of the actual per acre crop input cost incurred by Xxxxxxx Brothers
Partnership on the Premises for the applicable crop multiplied by the
number of acres, or fractional acres, of crop destroyed on the
Property by the Optionee prior to the harvest of such crop acres by
the Leasee. The number of such acres destroyed shall be measured by a
third-party as the parties hereto may mutually identify.
IN WITNESS WHEREOF, said parties hereto subscribe their names.
LEASEE: OPTIONEE:
XXXXXXX BROTHERS PARTNERSHIP ADVANCED BIOENERGY, LLC
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
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Xxxx Xxxxxxx Xxxxx X. Xxxxxxxxxx - Chairman
