Realsource Residential, Inc. 10-Q  


 



Exhibit 10.9





 



 


 


RS
BAKKEN ONE, LLC


 


to


 


REALSOURCE
RESIDENTIAL, INC.


 


 





 


 






RIGHT OF
FIRST REFUSAL & OPTION


 





 



 


 


Dated:
As of June 10, 2014


 


	Property Location:	6421 13 Mile Center Road NW	113, 115, 117, 119, 121, 123 and
	 	Williston, North Dakota	125 Frontier Avenue
	 	Williams County	City of Watford City, North Dakota
	 	 	McKenzie County


 


DOCUMENT
PREPARED BY AND
WHEN RECORDED,
RETURN TO:


 


Michael
Best & Friedrich LLP
6995


Union
Park Center, Suite 100


Salt Lake City,
Utah 84047


Attention: Jason
Rogers


 


 


 






 


 




    	 



    	 



    

RIGHT
OF FIRST REFUSAL
& OPTION


 


For
the Option Fee
(as hereafter defined)
and other good
and valuable consideration,
RS Bakken One, LLC,
a Delaware limited
liability company
(the “Grantor”)
having an address
of 2089 Fort
Union Blvd, Salt
Lake City, UT
84121, hereby grants
to RealSource Residential,
Inc., a Nevada corporation
(“Grantee”), having
an address of
2089 Fort Union
Blvd, Salt Lake
City, UT 84121,
the right of
first refusal and
an option
to purchase the
following property
under the terms
and conditions hereof
(collectively, the “Property”):


 


Fee
title to the
parcel of real
property located in
McKenzie County, North
Dakota, and the leasehold
interest in
the parcel
of real
property located
in  Williams
County, North Dakota
under the Cross
Roads Lease Agreement,
dated January 1, 2013,
between Bakken Development
Solutions, LLC,
a Kentucky limited
liability company
(“BDS”), as
tenant, and Pilot
Travel Centers LLC,
a Delaware limited
liability company
(“Pilot”), as
landlord, as amended
by the First
Amendment to
Cross Road Lease
Agreement, dated
February 11, 2014,
as assigned to
Grantor pursuant to
the Assignment and
Assumption of Lease,
dated on or
about the date
hereof, between BDS,
as assignor, and
Grantor, as assignee,
as such lease
was further amended by the Second Amendment
to Cross Road Lease Agreement, dated on or about the date hereof between Grantor and
Pilot and, as such parcels are described on Exhibit “A” hereto;


 


TOGETHER
WITH all
of Grantor’s right,
title and interest
in all rights,
easements, appurtenances,
buildings, improvements,
fixtures and hereditaments
upon, under or
directly or indirectly
associated with
or connected
with such
property and subject
to all encumbrances thereon.


 


Attachment:                      Exhibit
“A” -- Description of Property


 


1.                 
Option. At any
time after
the first anniversary
of the Effective
Date and prior
to the
second anniversary
of the
Effective Date
(such period, the
“Option Exercise
Period”)
Grantee shall
have the option
to purchase
the Property
(the “Option
to Purchase”) during
the Option Exercise
Period for the
Option Price (as
defined herein) subject
to all of
the terms
provided herein. The
“Option Price”
shall be equal
to the fair
market value
of the Property
as determined
by an appraisal
by an appraiser
agreed upon by
Grantor and Grantee
minus the Option
Fee; provided, however,
that the Option
Price shall be no
less than $7,000,000.00
and no greater than
$8,000,000.00. The “Option Fee” shall be $25,000.00.


 


a.                  
If Grantee elects
to exercise the
Option to Purchase
during the Option
Exercise Period, Grantee shall
notify Grantor of
Grantee’s election
to exercise
the Option
to Purchase
in writing at
Grantor’s address set
forth above. The
date such notice 
is delivered personally
to Grantor or
sent by United
States registered or
certified mail,
postage prepaid, and
addressed to Grantor
at Grantor’s address
set forth
above is the
“Option Exercise Date”.


 


b.                 
Grantee and
Grantor shall
use commercially
reasonable efforts
to obtain
the required
consents (including
any lenders,
Grantor’s members
or other
required approvals,


 




    	 



    	 



    

the
“Required Consents”)
to close the
transfer of the
Property as
soon as
reasonably practicable
following the
Option Exercise
Date. The
closing shall be
subject to, among
other things, the
receipt of all
required consents (such
date, the “Closing
Date”).


 


c.                  
This option is
given with
the understanding
that Grantee
is familiar
with the Property,
has reviewed
current title
reports of
the Property and
has reviewed the
loan documents
(as the same
may be
amended, increased,
renewed, extended, spread,
consolidated, severed, restated, or otherwise
changed from
time to
time, the
“Loan Documents”)
encumbering the
property issued
by Silverpeak
Real Estate Finance
LLC, a Delaware limited
liability company, dated on
or about the
date hereof.


 


2.                 
Right of First
Refusal. If at
any time
prior to the
second anniversary of
the Effective Date
Grantor or
Grantor’s successors,
as the case
may be,
receives any bona
fide offer to
purchase (the
“Offer to Purchase”)
the Property,
which offer Grantor
or the
Grantor’s successors
desires to
accept, Grantor
or Grantor’s
successors shall
notify Grantee
in writing (at
Grantee’s address set
forth above)
of such
offer, and
Grantee shall
have thirty
(30) business days
after receipt of such notice within
which to notify Grantor or Grantor’s
successors of Grantee’s
election to
purchase the
Property described
in such
offer on
the terms
and conditions set
forth in such offer. The notice
from Grantor or Grantor’s successors
to Grantee shall contain a copy of the
Offer to Purchase
as described in
the offer.


 


a.                  
If Grantee elects
to exercise
its right of
first refusal,
by providing
notice to
Grantor or Grantor’s
successors within
the time
period set forth
above, Grantee and
Grantor or
Grantor’s successors
shall proceed
to close
the transfer
of the
 Property
(subject to the
receipt of the
Required Consents),
or the portion
thereof described
in the
offer, in the
time period for the
closing as set forth in the
Offer to Purchase.


 


b.                 
In the event
that Grantee fails
to provide Grantor
or Grantor’s
successors with
notice within the time period set forth above,
Grantor or Grantor’s successors may
transfer the Property,
or the
portion thereof set
forth in
the Offer
to Purchase,
free and
clear of the
terms of
this Agreement
and of any
rights of Grantee
so long as
the Option Fee
is repaid to
Grantee at the
closing of such
sale.


 


c.                  
All notices hereunder
shall be
in writing and
shall be effective
when delivered personally
or when
sent by
United States
registered or certified
mail, postage
prepaid, and addressed
to the parties
at the addresses
set forth above.


 


3.                 
Subordination. Notwithstanding
anything herein
to the
contrary, this
Right of
First Refusal
& Option, and
all terms
and provisions
hereof, as
the same
may hereafter
be modified, amended
or extended, (i)
shall be, and
shall at all
times remain,
subject and subordinate
to the terms,
conditions and
provisions of
the Loan Documents
and the lien
thereof and (ii)
shall automatically
terminate upon
the foreclosure
or deed-in-lieu
of foreclosure
of the
liens created by
the Loan Documents.


 


[Signature
page follows]


 




    	 



    	 



    






    	 



    	 



    

Exhibit “A”


 


DESCRIPTION
OF PROPERTY


 


 


McKenzie County,
North Dakota Parcel


 


Parcel 1:


Lot 1, Block 1, The Crossings at Watford
City, McKenzie County,
North Dakota, as
shown on the Plat recorded as Document
No. 464880


 


Parcel 2:


Together with
the beneficial right
to use 360
foot by 170
foot private storm drainage facilities easement
as shown in Warranty Deed recorded October 17,
2012 as Document No.
441489, McKenzie County, North
Dakota


 


 


Williams
County, North Dakota Parcel


 


Parcel 1:


Units
E and F,
in Lot 6,
Block 3, 13
Mile Center Subdivision
located in the SW
1⁄4 of Section 12, Township 156 North, Range 101 West, 5th
P.M., Williams County, North
Dakota


 


Parcel 2:


Together
with the beneficial right to
use parking areas
located on Lot 6, Block 3, 13 Mile Center
Subdivision located in
the SW 1⁄4 of Section 12,
Township 156 North, Range 101 West, 5th
P.M., Williams
County, North Dakota