DISCLOSURE OF TERMS AND CONDITIONS OF SALE "LINN PROPERTY" SCOTTS BLUFF COUNTY, NEBRASKA Wetlands America Trust, Inc. ("Seller") (a supporting organization of Ducks Unlimited, Inc.), is selling by sealed bid auction the property referred to as the Linn Property (the Property ). The Property, which is more fully described in Exhibit A attached hereto and incorporated herein, consists of approximately 276 acres more or less of land located southwest of the town of Mitchell in Scotts Bluff County, Nebraska. The buyer shall be referred to as Buyer. A. PROPERTY 1) Seller will convey the Property by Warranty Deed, and Quitclaim Deed if necessary for any interest in accretions, free and clear of all liens and encumbrances except as specified in the Title Insurance Policy, attached hereto as Exhibit B, and the Purchase and Sale Agreement ( Sales Contract ), attached hereto as Exhibit C. 2) The Property is sold subject to the Crop Land Lease Agreement (the Lease ), a copy of which is attached hereto and incorporated herein as Exhibit D. Seller shall, at Closing, deliver and assign the original Lease to Buyer; however, all Lease payments due through the end of the lease term on December 31, 2015, shall be paid to Seller. 3) The Property is selling subject to, and any CONTRACT IS NOT CONTINGENT upon, any state of facts an accurate survey or personal inspection of the Property might reveal, any existing rights-of-way, easements or claims to easements, encroachments, rights or claims of parties in possession, restrictive and protective covenants, flood zones, zoning regulations, governmental regulations, environmental conditions (including, but not limited to wetlands), riparian/littoral rights, hazardous materials, any mineral rights, water rights, oil/gas rights, carbon rights, reservations or conveyances, and subject also to all title exceptions as set forth in the Title Insurance Policy. B. PROPERTY INSPECTION 1) It is Buyer s sole responsibility to: (a) perform all inspections (legal, environmental, economic, or otherwise) of the Property and improvements thereon and to be satisfied as to their condition prior to bidding; (b) review all property information; (c) independently verify any information they deem important including information available in public records; and (d) inquire of public officials as to the applicability of and compliance with land use, zoning, building, and health and safety codes and ordinances, and any other local, state, or federal laws and regulations. 2) All information contained in promotional materials, including but not limited to acreage, dimensions, maps, taxes, etc., provided by Seller is believed to be correct; however, Seller makes no guarantee or warranty as to the accuracy or completeness of such information. Seller is not required to update any information. Buyer and/or Buyer s Agent/Broker shall bear the responsibility to confirm all information relevant to the Property prior to registering a bid. 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 1 of 6
C. PROPERTY DISCLOSURES 1) Two grain bins, 1 pit blind, and 2 irrigation wells with pumps and motors are conveyed with the Property. 2) The Property is selling subject to all rights-of-way and easements, and other encumbrances of record. 3) The sale of this Property is contingent upon Buyer conveying unto Seller a Conservation Easement over the Property to be recorded in the Scotts Bluff County Register of Deeds Office. A Deed of Conservation Easement, in substantially the same format as the Draft Deed of Conservation Easement that will be made available prior to the bid deadline, subject to approval by the appropriate governing body pursuant to the Nebraska Conservation and Preservation Easements Act, shall be executed at Closing. D. BIDDER REGISTRATION AND TERMS OF SALE 1) Seller has established a reserve on the property of Seven Hundred Thousand and 00/100 Dollars ($700,000.00) and will not consider bids less than that amount. 2) All bids shall be rounded to the nearest $1,000.00 increment (for example, $701,000.00 or $702,000.00). Any bid not rounded to the nearest $1,000.00 increment will be reduced by Seller to the next lower $1,000.00 increment (for example $701,700.00 will be reduced to $701,000.00). 3) To submit a bid, bidders must complete and sign a Conservation Buyer Bid Submission Form and deliver it to: Ducks Unlimited, Inc. c/o Mr. John Denton 2121 North Webb Road Grand Island, NE 68803 Fax: 308.384.2668 4) Bids must be received by 5:00 pm central standard time on October 8, 2015, to be considered. DU will not consider any bids that arrive in Mr. Denton s hands after 5:00 pm central standard time on that date. DU makes no warranty as to the efficiency of the United States Postal Service or any other delivery service. Therefore, DU strongly recommends that bidders confirm receipt of bid with Mr. Denton (308-258-4682) before 5:00 pm central standard time on October 8, 2015. Bids will only be accepted by hand-delivery, delivery service (including U.S. Mail), or facsimile. Additional instructions are contained on the Conservation Buyer Bid Submission Form. 5) By 5:00 pm central standard time on October 9, 2015, the bids will be reviewed and the highest submitted bid will be declared the Buyer. In the event that two or more submitted bids are determined to be identical, a live in-person or telephone auction or a subsequent bid auction will be conducted (with type and particulars of auction to be determined in DU s sole discretion) between the highest submitted bids to determine the Buyer for the property. DU will organize the in-person, telephone, or subsequent bid auction at its convenience. 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 2 of 6
6) The bid/offer made by Buyer shall be binding on Buyer and Buyer s heirs and assigns. 7) Upon being declared the high bidder, Buyer shall pay in U.S. funds an Earnest Money Deposit of no less than TEN PERCENT (10%) of the Total Contract Price of the Property to the Escrow Agent by wire transfer no later than three (3) business days after Buyer receives confirmation of being the successful bidder. The balance of the purchase price is due at closing. 8) Buyer shall execute and deliver a completed Sales Contract (Exhibit C) no later than three (3) business days after Buyer receives confirmation of being the successful bidder. The fully executed Sales Contract shall control all terms and conditions of the sale and constitute the entire agreement between Buyer and Seller. In the event of a conflict between these Terms and Conditions of Sale and the Terms and Conditions of such Sales Contract, the Terms and Conditions of the Sales Contract shall prevail. NO CHANGES TO THE TERMS OF THE SALES CONTRACT WILL BE PERMITTED. BUYER WILL BE REQUIRED TO ENTER INTO THE SALES CONTRACT AS IS ON AUCTION DATE. 9) If for any reason Buyer fails or refuses to deposit the required funds or to execute the Sales Contract no later than three (3) business days after being confirmed as the high bidder, Seller reserves the right to declare the Buyer s rights forfeited, resell the Property, and keep Buyer s Earnest Money Deposit. 10) Seller has the right to accept or reject at its sole discretion any and all bids. 11) This is a CASH SALE. This sale is not contingent upon Buyer s ability to obtain financing. E. SURVEY The Property has not been surveyed for the sale. The Property will be conveyed according to Seller's deed. Should Buyer desire a survey, it shall be at Buyer's option and expense. Should the survey show a greater or lesser number of acres, no adjustment will be made to the contract price. F. CLOSING COSTS 1) Seller s Costs. At Closing, Seller shall provide for the Title Commitment and the costs to release encumbrances on the Property that would otherwise prohibit conveyance. 2) Buyer s Costs. At Closing, Buyer shall pay the premium for the Owner s Title Insurance policy, documentary stamps, tax certificate, lender's endorsement fee, the fees for recording the deed, and any financing costs. 3) The current year's property taxes and general assessments, if any, shall be prorated through the date of Closing. 4) Seller and Buyer shall equally share the costs for any additional closing fees directly related to this transaction, but NOT with respect to any Buyer financing, which financing closing costs are Buyer s sole responsibility. 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 3 of 6
G. CLOSING Closing will be as soon as possible, but no later than 30 days, after Buyer is notified that he/she is the winning bidder. All deposits and down payments shall be in U.S. funds and shall be held in an interest bearing escrow account with the Escrow/Closing Agent pending completion of necessary closing procedures, after which Buyer shall be granted possession of the Property subject to any matters contained in the Title Commitment and the Sales Contract. H. ESCROW/CLOSING AGENCY 1) Closing agency will be determined at a later date and will be disclosed no later than three business days after being notified as the successful bidder. 2) Location of the closing will be determined by Seller. 3) The proceeds due from Buyer at closing shall be in certified U.S. funds, bank cashier s check, or confirmed wire transfer. I. PROPERTY SPECIFICS Buyer is advised that they must assume the liability for the inspection to satisfy their conditions of this purchase and their need for use of the Property. Buyer is strongly encouraged to conduct a survey, tests, inspections, and/or other studies prior to bidding to satisfy themselves of any condition regarding the subject property, including but not limited to boundaries, restrictions, reservations or dedications, and any other condition that may inhibit or deter the intended or projected enjoyment or use of the subject property by Buyer. J. DEFAULT In the event Buyer fails to close and pay his/her balance when due, Seller may terminate the Sales Contract and retain the Earnest Money Deposit and interest thereon as liquidated damages. K. DISCLAIMER 1) PERSONAL ON-SITE INSPECTION OF THE PROPERTY IS RECOMMENDED AND BIDDERS ARE ADVISED TO INDEPENDENTLY VERIFY ALL INFORMATION THEY DEEM IMPORTANT. THIS PROPERTY IS BEING SOLD AS IS, WHERE IS AND WITH ALL FAULTS. SELLER HAS NOT MADE, DOES NOT MAKE, AND WILL NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO ITS VALUE, CONDITION, ACREAGE, SQUARE FOOTAGE, SUITABILITY, MERCHANTABILITY, OPERABILITY, ZONING REGULATIONS, MINERAL RIGHTS, ENVIRONMENTAL CONDITION, RIPARIAN/LITTORAL RIGHTS, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. NO GUARANTEES ARE GIVEN AS TO THE AVAILABILITY OF UTILITIES OR ACCESS, OR THE PERMITTED OR ALLOWABLE USES ON THE PROPERTY. 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 4 of 6
2) Neither Seller, nor any of its agents or representatives shall be liable for any relief, including damages, rescission, reformation, allowance, or adjustments based on the failure of the Property to conform to any specific standard or expectation or any third party documents or information, including but not limited to amount of acreage, square footage, zoning, and environmental condition. L. EQUAL OPPORTUNITY CLAUSE All bidding is open to the public. The Property is available to qualified Buyers without regard to a prospective Buyer s race, color, religion, sex, familial status, national origin, or physical handicap. M. MISCELLANEOUS 1) All decisions of Seller are final as to the methods of bidding, disputes among bidders, and any other matters that may arise before, during, or after the Bidding Process. Seller reserves the right to deny any persons or expel anyone from the Bidding Process who attempts to disrupt the Bidding Process. 2) All announcements made during the Bidding Process supersede any prior oral or printed statements. 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 5 of 6
EXHIBIT A LEGAL DESCRIPTION 2015.9.17 - Linn NE-35-6 - Sealed Bid Auction Terms Page 6 of 6
PURCHASE AND SALE AGREEMENT THIS AGREEMENT is made and entered into this day of, 2015, between WETLANDS AMERICA TRUST, INC. ( Seller ), (a supporting organization of Ducks Unlimited, Inc.) a nonprofit corporation organized under the laws of the District of Columbia, with an address of One Waterfowl Way, Memphis, Tennessee 38120, and ( Buyer ), with an address of. Seller and Buyer collectively shall be referred to as the Parties. Seller agrees to sell and Buyer agrees to purchase Seller's property on the following terms and conditions: 1. PROPERTY. Seller agrees to convey to Buyer approximately 276 acres more or less of land located southwest of the town of Mitchell in Scotts Bluff County, Nebraska (the Property ). The Property is more fully described in Exhibit A, attached hereto and incorporated herein. Two grain bins, 1 pit blind, and 2 irrigation wells with pumps and motors shall be conveyed with the Property. 2. PURCHASE PRICE. The Purchase Price of the Property is. The Parties agree that the Purchase Price shall be payable as follows: a. Non-refundable Earnest Money Deposit of no less than ten percent (10%) shall be paid to the Escrow Agent by wire transfer no later than three (3) business days after Buyer receives confirmation of being the successful bidder. b. Buyer shall pay the balance of the Purchase Price at Closing. The balance shall be paid in certified funds, bank cashier s check, or confirmed wire transfer. 3. CONDITIONS OF SALE. In addition to any conditions found elsewhere in this Agreement, this Agreement is conditioned upon the following: a. CONSERVATION EASEMENT. The sale of this Property is contingent upon Buyer conveying unto Seller a Conservation Easement over the Property to be recorded in the Scotts Bluff County Register of Deeds Office. A Deed of Conservation Easement, in substantially the same format as the Draft Deed of Conservation Easement attached hereto as Exhibit B, subject to approval by the appropriate governing body pursuant to the Nebraska Conservation and Preservation Easements Act, shall be executed at Closing. b. Seller s transfer of good and merchantable title and Seller's furnishing a Warranty Deed, as well as a Quitclaim Deed if necessary for any interest in accretions, at Closing. c. The Property is sold subject to the Crop Land Lease Agreement (the Lease ), a copy of which is attached hereto and incorporated herein as Exhibit C. Seller shall, at Closing, deliver and assign the original Lease to Buyer; however, all Lease payments due through the end of the lease term on December 31, 2015, shall be paid to Seller. d. Upon the execution of this Agreement, Seller agrees not to modify or extend the Lease or enter into any further leases or other contractual agreements, oral or written, pertaining to or affecting the Property or improvements located thereon without the prior written approval of Buyer. e. Conveyance shall include all rights, privileges, easements, and appurtenances to the Property, including all easements, rights-of-way, and other appurtenances used or connected with the beneficial use or enjoyment of the Property and all right, title, and interest in and to all streets, watercourses, or water bodies adjacent to, abutting, or serving the Property. f. The Property is selling subject to, and this Agreement IS NOT CONTINGENT UPON, any state of facts an accurate survey or personal inspection of the Property might reveal, any existing rights-of-way, easements or claims to easements, encroachments, rights or claims of parties in possession, restrictive and protective covenants, flood zones, zoning regulations, 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 1 of 8
governmental regulations, environmental conditions (including, but not limited to wetlands), riparian/littoral rights, hazardous materials, any mineral rights, water rights, oil/gas rights, carbon rights, reservations or conveyances, other encumbrances of record, and subject also to all title exceptions as set forth in the Title Insurance Policy attached hereto as Exhibit D. 4. CLOSING. The Parties hereto agree that Closing shall be held approximately, unless extended in writing by mutual consent of the Parties hereto. Location of the Closing shall be determined by Seller. 5. POSSESSION. Buyer shall take physical possession of the Property at Closing. 6. ESCROW/CLOSING COSTS/TAXES. a. Seller shall pay for the Title Commitment. b. Buyer shall pay the premium for the Owner s Title Insurance policy, documentary stamps, tax certificate, lender's endorsement fee, the fees for recording the deed, and any financing costs. c. Real estate taxes and special assessments for the year of Closing shall be prorated between Seller and Buyer on a calendar year basis to the actual date of Closing. Seller shall pay all real estate taxes and special assessments due and payable in years prior to the date of Closing. Buyer shall pay all real estate taxes and special assessments due and payable in years following the date of Closing. d. Any additional closing costs not specifically allocated herein to Buyer or Seller shall be born equally by Buyer and Seller. 7. TITLE. A title commitment will be obtained by Seller evidencing good and merchantable title in Seller. In the event that the title commitment discloses any defects in the title, then Seller shall have a reasonable time, but not to exceed thirty (30) days, in which to cure the same at its expense after receiving notice of said defect. The cost of any attorney s fees, drafting and recording of any legal documents, or other fees associated with curing any defects in title shall be the responsibility of Seller, unless otherwise agreed to by the Parties. Unless otherwise specified in this Agreement or specifically agreed to in writing by Buyer, title to the Property at Closing shall be free of all defects that make the title uninsurable. If title cannot be freed of such defects by Closing, then this Agreement shall terminate at Buyer s option. 8. SURVEY. The Property has not been surveyed for the sale. The Property will be conveyed according to Seller's deed. Should Buyer desire a survey, it shall be at Buyer's option and expense. Should the survey show a greater or lesser number of acres, no adjustment will be made to the Purchase Price. 9. REPRESENTATIONS. a. Title to the Property is and will be at Closing free and clear of all liens and encumbrances except as set forth herein. b. Seller has all right, power, and authority to sell the Property to Buyer in accordance with the terms and conditions hereof, and neither the execution or delivery of this Purchase and Sale Agreement, nor the consummation of the transaction contemplated hereby, will violate any law, regulation, resolution, lien, judgment, order, restriction, agreement, or arrangement to which Seller or the Property is subject. c. Seller has no knowledge nor has it received any notices from any public authority, insurance company, or insurance underwriter as to any matter which would adversely affect the Property. d. Seller is not a foreign person for purposes of FIRPTA or other applicable federal laws. 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 2 of 8
e. To the best of Seller s knowledge, Seller is not aware of any fact or circumstance that materially adversely affects the Property. f. Seller has no knowledge of any condemnation, environmental, zoning, or other land use regulation or proceedings or of any litigation pending or threatened affecting the Property. g. Seller represents that to the best of its knowledge, there are no underground storage tanks, hazardous wastes, hazardous substances, surface or subsurface contamination, or other environmental hazards on or under the Property. 10. DISCLAIMER. a. THE PROPERTY IS BEING SOLD AS IS, WHERE IS, AND WITH ALL FAULTS. SELLER HAS NOT MADE, DOES NOT MAKE, AND WILL NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO ITS VALUE, CONDITION, ACREAGE, SQUARE FOOTAGE, SUITABILITY, MERCHANTABILITY, OPERABILITY, ZONING REGULATIONS, MINERAL RIGHTS, ENVIRONMENTAL CONDITION, RIPARIAN/LITTORAL RIGHTS, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. NO GUARANTEES ARE GIVEN AS TO THE AVAILABILITY OF UTILITIES OR ACCESS, OR THE PERMITTED OR ALLOWABLE USES ON THE PROPERTY. b. Neither Seller, nor any of its agents or representatives shall be liable for any relief, including damages, rescission, reformation, allowance, or adjustments based on the failure of the Property to conform to any specific standard or expectation or any third party documents or information, including but not limited to amount of acreage, square footage, zoning, and environmental condition. 11. PROPERTY MAINTENANCE. Seller agrees to prevent and refrain from any use of the Property for any purpose or in any manner that would materially diminish value or adversely affect the conservation value of the Property. 12. PROPERTY INSPECTION. Buyer has previously performed all desired tests, inspections, and studies (legal, environmental, economic, or otherwise) of the Property and improvements thereon and is satisfied as to their condition. 13. FIRE/ACT OF GOD. Loss or damage to the property by fire or from an act of God shall be at the risk of Seller until the deed has been delivered at closing, and in the event such loss or damage occurs, Buyer may, without liability, refuse to accept conveyance of title, or it may elect to accept conveyance of title, in which case there shall be an equitable adjustment of the purchase price. 14. NO BROKERS. There are no commissions, fees, or obligations owed any real estate brokers by Seller in connection with this transaction. 15. ASSIGNMENT. Buyer or Seller shall not assign this Agreement without the prior written consent of the other party. 16. GENERAL PROVISIONS. a. This Agreement is binding upon the Parties and their successors and assigns. b. This Agreement constitutes the sole and complete Agreement between the Parties and no representations or promises not included in this writing shall be binding upon any party to 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 3 of 8
this Agreement. No amendment, modification, or attempt to supersede or cancel any of the terms or conditions hereof shall be effective unless such amendment, modification, or direction to supersede or cancel such term or condition is in writing executed by both Seller and Buyer. c. All terms of this Agreement not satisfied at Closing or waived prior to Closing shall survive Closing. d. If any term or covenant of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law. No waiver of the breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or of any other provision in this Agreement. e. This Agreement may be executed in identical counterparts, all of which executed counterparts shall constitute one complete document. f. Further, facsimile and PDF signatures, transmitted by fax or PDF, are as binding on the Parties as original signatures. 17. NOTICES. All notices and other communications required or permitted hereunder shall be in writing and shall be duly given if delivered by Certified or Registered Mail, Return Receipt Requested, postage prepaid, or by overnight carrier such as Federal Express, as follows: If to Buyer: If to Seller: Wetlands America Trust, Inc. Attn: Director of Land Protection One Waterfowl Way Memphis, Tennessee 38120-2351 18. GOVERNING LAW. This Agreement shall be governed by the laws of the State where the Property is located. 19. DEFAULT. In the event of default by either party, the other party shall have such remedies as provided by the laws of the State where the Property is located, to include the right of specific performance. In the event Buyer fails to close and pay his/her balance when due, Seller may terminate this Agreement and retain the Earnest Money Deposit and interest thereon as liquidated damages. WITNESS our signatures the date and year first above written. 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 4 of 8
BUYER: Signature Printed Name State of County of On this day of, 2015,, personally appeared before me and voluntarily executed the foregoing Purchase and Sale Agreement. In witness whereof I hereunto set my hand and official seal. (Seal) Notary Public Signature Printed Name: My Commission Expires: BUYER: Signature Printed Name State of County of On this day of, 2015,, personally appeared before me and voluntarily executed the foregoing Purchase and Sale Agreement. In witness whereof I hereunto set my hand and official seal. (Seal) Notary Public Signature Printed Name: My Commission Expires: 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 5 of 8
Signature Page Continued Seller Signature SELLER: WETLANDS AMERICA TRUST, INC. By: Earl H. Grochau, Assistant Secretary State of Tennessee County of Shelby On this day of, 2015, Earl H. Grochau, personally appeared before me and voluntarily executed the foregoing Purchase and Sale Agreement, which he acknowledged he is authorized to sign as the Assistant Secretary of WETLANDS AMERICA TRUST, INC. In witness whereof I hereunto set my hand and official seal. (Seal) Notary Public Signature Printed Name: My Commission Expires: 2015.9.17 - Linn NE-35-6 - Purchase & Sale Agreement Page 6 of 8