EXHIBIT 10.1
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OPTION AGREEMENT
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THIS OPTION AGREEMENT ("Option Agreement") is entered into as of
September 22, 2001, by 5 C'S FARM, INC. an Ohio [corporation] and XXXXXXX X.
XXXXXXX, XX., an individual, hereinafter collectively referred to as "Owner" in
favor of NORTHWEST ETHANOL, LLC, an Ohio limited liability company, hereinafter
referred to as "Purchaser."
1. GRANT OF OPTION. The parties referred to in this Option Agreement as
the "Owner" collectively own 49.1 acres of real property located in Defiance
county, Ohio, which real property is described in Exhibit A, attached hereto and
incorporated herein (the "Owner's Parcel"). In consideration of the payment of
the Option Fee (as hereinafter defined) to Owner by Purchaser, Owner hereby
grants to Purchaser the sole and exclusive right and option (the "Option") to
purchase all or a portion of the Owner's Parcel, together with all improvements
and appurtenances thereto. In the event that Purchaser desires to purchase less
than all of the Owner's Parcel, Purchaser shall have the right to designate that
portion of the Owner's Parcel to be purchased, such area to be designated on the
Survey contemplated by Section 6(c) hereof. That portion of the Owner's Parcel
to be purchased by Purchaser, whether all or a portion of the Owner's Parcel, is
herein referred to as the "Premises."
2. TERM. The Option may be exercised by the Purchaser at any time on
or before 5:00 P.M. on March 31, 2002 or, if extended by Purchaser pursuant to
the provisions of Paragraph 3 hereof, on or before September 30, 2002. Purchaser
shall exercise the Option by giving written notice to Owner at the following
address: 00000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000 .
3. OPTION FEE. On the date hereof, Purchaser agrees to deliver to Owner
the sum of Five Hundred Dollars ($500.00) (the "Option Fee"). In the event that
Purchaser has not exercised the Option prior to March 31, 2002, Purchaser may
deliver to Owner, on or before such date, an additional option fee of Five
Hundred Dollars ($500.00) (the "Additional Deposit") in consideration of which
Owner shall extend the term of the Option for an additional six (6) month
period. Purchaser's failure to deliver the Additional Deposit on or before such
date shall terminate the Option and Owner shall be entitled to retain the Option
Fee. In the event that Purchaser exercises the Option, the Option Fee and, if
applicable, the Additional Deposit shall be applied to the purchase price of the
Premises.
4. FAILURE TO EXERCISE OPTION. If Purchaser does not exercise the
Option, Owner shall retain the Option Fee, but the Additional Deposit, if
applicable, shall be refunded to Purchaser.
5. PURCHASE PRICE. The total purchase price for the Premises shall be
the product of the net acreage of the Premises, as designated by Purchaser and
delineated by the
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Survey contemplated by Section 6(c) hereof, multiplied by the sum of Two
Thousand Five Hundred Dollars ($2,500.00) per acre for each acre selected by
Purchaser (which amount shall be prorated for any part of the Premises that is
less than a full acre). Purchaser shall pay the purchase price to Owner pursuant
to the terms of a Real Estate Purchase Agreement to be entered into between the
parties following Purchaser's exercise of the Option (the "Purchase Agreement")
which Purchase Agreement shall allocate to each of the Owners that portion of
the purchase price that is attributable to the Premises owned by such Owner.
6. EXERCISE OF OPTION. The purchase price, contingencies and other
terms of acquiring the Premises, should Purchaser exercise the Option, shall be
contained in the Purchase Agreement containing the following terms:
a. Conveyance. The Premises shall be conveyed to Purchaser, or
its nominee, by general warranty deed, free and clear of all liens and
encumbrances whatsoever, except for real estate taxes and general and
special assessments not then due and payable and such easements,
reservations, limitations and restrictions as Purchaser shall approve.
b. Closing. The transaction shall close on a date (the
"Closing Date") set by Purchaser, which date shall be sixty (60) to
ninety (90) days following the date Purchaser exercises the Option.
c. Title Policy and Survey. Owner shall supply Purchaser with
an ALTA owner's policy of title insurance insuring that title to the
Premises is as described in Section 6(a) above. Owner shall supply
Purchaser with an ALTA/ACSM survey of the Premises made by a licensed
surveyor (the "Survey"), which Survey shall contain a calculation of
the total acreage of the Premises, exclusive of portions thereof within
public highways or streets (the "net acreage") and shall also contain
the location of all easements, encroachments, utility lines, access to
public highways abutting the Premises, all improvements located on the
Premises, a legal description for the Premises and shall confirm that
the internal boundaries of any parcels comprising the Premises are
contiguous to each other without any gap or xxxx. The Survey and the
title insurance policy shall be in form and substance satisfactory to
Purchaser.
d. Lot Split. Owner shall, at its expense, secure any lot
splits necessary for the Premises in the event that Purchaser elects to
Purchase less than all of the available 49.1 acres.
e. Taxes. All taxes, assessments or utility charges related to
the Premises shall be prorated between the parties as of the Closing
Date, with the Closing Date being treated as a day of ownership by
Seller.
f. Other Conditions. The parties shall agree to such other
terms and conditions as are necessary and appropriate to close the
transaction contemplated by this Option. In the event of a disagreement
over such terms, those terms and conditions as are customary in
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similar real estate purchase agreements in Cleveland, Ohio shall
control to the extent not inconsistent with the terms and conditions
contained herein.
7. ENTRY FOR INSPECTION. During the term of the Option, Owner shall
provide Purchaser and Purchaser's agents or representatives with complete access
to the Owner's Parcel for the purpose of conducting such inspections,
engineering studies, surveys, appraisals, test borings or any other activities
reasonably required by Purchaser in order to determine the suitability of the
Owner's Parcel for Purchaser's purposes (collectively, the "Inspections"). The
right to conduct Inspections shall include the right to enter upon any portion
of the Owner's Parcel to take measurements, make inspections, make boundary and
topographical survey maps, and to conduct geotechnical, environmental,
groundwater, wetland and other studies required by Purchaser, in its sole
discretion, and to determine the adequacy of utilities servicing the Owner's
Parcel, zoning ordinances and compliance with laws. No such Inspections shall
constitute a waiver or relinquishment on the part of Purchaser of its rights
under any covenant, condition, representation or warranty of Owner under this
Agreement. Upon execution of this Option Agreement, Owner shall deliver to
Purchaser, at no cost to Purchaser, such of the following as are in the
possession of or available to Owner: existing soil and groundwater tests,
surveys, contracts, leases, title policies, environmental reports, underground
storage tank test results, waste disposal records, permit records, traffic
studies, other engineering tests and studies pertaining to the Owner's Parcel,
all existing site plans, drawings, architectural drawings or other plans related
to the development or proposed development of the Owner's Parcel. Owner shall
cooperate with Purchaser during the Inspections and hereby agrees to attend all
meetings relating to Purchaser's intended use of the Premises, as well as all
site plan approval meetings.
8. NOTICE. All notices provided for herein shall be personally
delivered, by United States certified mail, return receipt requested or sent by
a nationally recognized overnight package carrier delivered to Purchaser at 000
Xxxxxxx Xx., Xxxxx 0000, Xxxxxxxx, Xxxx 00000, Attn: Xxx Xxxxxx, and to Owner at
the address specified in Section 2 above. Either party shall have the right to
designate a new address for the receipt of such notices by written notice given
as aforesaid.
9. ASSIGNMENT. This Option Agreement and all rights hereunder shall be
freely assignable by Purchaser. If Purchaser shall assign the same, all acts to
be performed by Purchaser with respect to this Option Agreement and the Purchase
Agreement, including payment of the purchase price, may be performed by any such
assignee, whether the assignment is made prior to or after the exercise of the
Option.
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EXECUTED as of the date first above written.
Witnessed By: OWNER:
5 C's FARM, INC.,
an Ohio corporation
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx Xx., 5C's Farm, Inc.
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Witness 1 - Signature
Xxxxxxx Xxxxx Printed Name: Xxxxxxx X. Xxxxxxx Xx.
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Witness 1 - Print or Type Name
/s/ Xxxxxxx Xxxxxxx Its: President
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Witness 2 - Signature
Date: 9-22-01
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Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx Xx.
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Witness 2 - Print or Type Name Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxx Xxxxx
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Witness 1 - Signature
Xxxxxxx Xxxxx
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Witness 1 - Print or Type Name
/s/ Xxxxxxx Xxxxxxx
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Witness 2 - Signature
Xxxxxxx Xxxxxxx Date: 9-22-01
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Witness 2 - Print or Type Name
/s/ Xxxxx X. Xxxxxxx
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Witness 1 - Signature Xxxxx X. Xxxxxxx
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Witness 1 - Print or Type Name
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Witness 2 - Signature
Date: 9-22-01
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Witness 2 - Print or Type Name
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PURCHASER:
Witnessed By:
NORTHWEST ETHANOL, LLC
an Ohio limited liability company
/s/ Xxxx X. Xxxxxxx By:/s/ Xxxxxx X. Xxxxxxxx NWE Vice Chairman
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Witness 1 - Signature
Xxxx X. Xxxxxxx Printed Name: Xxxxxx X. Xxxxxxxx
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Witness 1 - Print or Type Name
/s/ Xxxxx X. Xxxxxxx Its: Vice Chairman NWE Board
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Witness 2 - Signature
Xxxxx X. Xxxxxxx Date: 9-28-01
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Witness 2 - Print or Type Name
STATE OF OHIO )
) SS.
COUNTY OF DEFIANCE )
The foregoing instrument was acknowledged before me this 22ND day of
SEPTEMBER, 2001 by XXXXXXX X. XXXXXXX XX., PRESIDENT of 5 C's Farm, Inc. an Ohio
corporation on behalf of such corporation.
/s/ Xxxxxxx Xxxxxxx Xxxxx
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Notary Public
Xxxxxxx Xxxxxxx Xxxxx, Notary Public
State of Ohio
My Commission Expires July 11, 2004
STATE OF OHIO )
) SS.
COUNTY OF DEFIANCE )
The foregoing instrument was acknowledged before me this 22ND day of
SEPTEMBER, 2001 by Xxxxxxx X. Xxxxxxx, Xx. and Xxxxx X. Xxxxxxx.
/s/ Xxxxxxx Xxxxxxx Xxxxx
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Notary Public
Xxxxxxx Xxxxxxx Xxxxx, Notary Public
State of Ohio
My Commission Expires July 11, 2004
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STATE OF OHIO )
) SS.
COUNTY OF DEFIANCE )
The foregoing instrument was acknowledged before me this 28TH day of
SEPTEMBER, 2001 by XXXXXX XXXXXXXX, of Northwest Ethanol, LLC, an Ohio limited
liability company on behalf of the company.
/s/ Xxxxxxx X. Xxxxx
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Notary Public
Xxxxxxx X. Xxxxx
Notary Public, State of Ohio
My Commission Expires June 21, 2005
This Instrument Prepared By:
Xxx X. Xxxxxx, Esq.
000 Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxxx, XX 00000
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"EXHIBIT A"
TRACT 1 - Situated in the Township of Xxxx, County of Defiance and State of
Ohio, and known as:
Northwest fractional Quarter (1/4) of the Northwest Quarter (1/4) of Section
Nineteen (19), Township Number four (4) North of Range Two (2) East, containing
forty-nine and 10/100 acres of land.
(Deed Book 202-767) Perm. Parcel No. G19-0019-0-003-00
TRACT 3 - Situated in the Township of Xxxx, County of Defiance and State of
Ohio, and known as:
A parcel of land being situated in the Northwest Quarter(1/4) of Section 19,
Town 4 North, Range 2 East, Xxxx Township, Defiance County, Ohio, and which is
more particularly described as follows: Beginning at an iron pin in the
Southwest corner of the Northwest Quarter (1/4) of said Section 19; thence North
0(Degree)-00' East on the West line of the Northwest Quarter (1/4) of said
Section 19; thence North 0(Degree)-00' East on the West line of the Northwest
Quarter (1/4) of Section 19 and the Hicksville-Xxxx Township line a distance of
49.70 feet to an iron pin over a cornerstone; thence North 0(Degree)-06' West on
the said West line of the Northwest Quarter (1/4) of Section 19 and the
Hicksville-Xxxx Township line a distance of 1124.80 feet to a point on the
Northerly right-of-way line of the Baltimore and Ohio Railroad and the place of
beginning; thence North 0(Degree)-06' West on the said West line of the
Northwest Quarter (1/4) of Section 19 and the Hicksville-Xxxx Township line a
distance of 162.00 feet to a railroad spike; thence north 89(Degree)-44' East a
distance of 1566.89 feet to a point; thence South 0(Degree)-09' West a distance
of 266.90 feet to a point on the Northerly right-of-way line of said railroad;
thence North 86(Degree)-26' West on the said Northerly right-of-way line of said
railroad a distance of 1568.94 feet to the place of beginning.
Containing 7.71 acres more or less but subject to all legal highways and
easements of record.
A survey of the above parcel was made by Xxxx X. Xxxxxxxxx, Registered Surveyor
No. 5602.
(Deed Book 225-261) Perm. Parcel No. G19-0019-0-005-01
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