AGREEMENT
Exhibit 10.17
AGREEMENT
THIS AGREEMENT is executed as of June 15, 2007, by and between One Earth Energy, LLC,
an Illinois limited liability company (“One Earth Energy”), and Xxxx Xxxxxx, a resident of the
State of Illinois (“Xxxxxx”).
W I T N E S S E T H :
WHEREAS, Xxxxxx owns certain property located in Xxxxxx City, Ford County, Illinois, as
legally described in attached EXHIBIT A (the “Real Estate”). One Earth Energy desires to
purchase a portion of the Real Estate described in EXHIBIT A, with such portion to be purchased
described in the attached EXHIBIT B (the “Property”); and
WHEREAS, One Earth Energy in its option to purchase the premises which has been exercised
undertook and agreed to not disrupt or interfere with the drainage of Xxxxxx’x remaining Real
Estate in the purchase of the above-described Property and the use of said Property. A copy of
said Option Agreement containing said undertakings is attached hereto as EXHIBIT C; and
WHEREAS, since exercise of the option, the parties have secured a proposal by Day Drainage of
Xxxxxx City, Illinois, to re-route the existing drain tiles on the Real Estate around the Property
to be sold to One Earth Energy; and
WHEREAS, said proposal contemplated the necessity of Xxxxxx giving and conveying to One Earth
Energy an easement across a portion of her remaining property, which said easement Xxxxxx does not
desire to convey; and
WHEREAS, One Earth Energy is still desirous of purchasing the Property and agrees to undertake
the construction called for in the Day proposal and further agrees to take whatever steps are
necessary to secure a discharge of the drainage from the remaining Real Estate across its Property
to be acquired or other property without securing a further easement from Xxxxxx in the sale of the
property; and
WHEREAS, One Earth Energy desires to indemnify and guarantee that said drainage work will be
done in a workmanlike manner and pursuant to the proposal presented by Day Drainage, all of said
work being done at the sole cost and expense of One Earth Energy.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings hereinafter set out,
it is agreed between the parties as follows:
1. One Earth Energy hereby agrees to implement the “Drainage Plan” as above described proposed
by Day Drainage of Xxxxxx City, Illinois and to complete said plan at One Earth Energy’s sole cost
and expense. Said drainage work shall be completed prior to One Earth Energy undertaking any
excavation or work on the Property to be purchased by One Earth Energy from Xxxxxx for the
construction of any improvements on
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said property. Notwithstanding the above, One Earth Energy may remove the tree line and
shrubs on the Property to be purchased as is reasonably necessary to commence the drainage work.
Any trees and/or shrubs removed from the Property will be disposed of by One Earth Energy at a
location other than the Xxxxxx Real Estate. One Earth Energy hereby agrees to re-level the ground
and replace the topsoil on the areas of the remaining Xxxxxx Real Estate affected by the drainage
work or development upon completion of such work.
In the completion of the Drainage Plan, One Earth Energy shall not remove any trees or shrubs
from the remaining Xxxxxx Real Estate except those trees and shrubs that are absolutely necessary
to be removed to complete the Drainage Plan. Any trees, shrubs, or rubble that are removed in
completing the Drainage Plan shall be disposed of at a location other than the remaining Xxxxxx
Real Estate.
2. One Earth Energy hereby reserves the right to use a general contractor of its choice to
complete such drainage work. In the event Day Drainage is hired to complete the drainage work no
further inspection will be necessary for approval of the drainage work by Xxxxxx. If Day Drainage
is not hired by One Earth Energy to complete the drainage work, Xxxxxx’x current Tenant will be
notified in advance of any work to be performed pursuant to the plan and will be allowed to inspect
the drainage work process on behalf of Xxxxxx. In the event Xxxxxx’x Tenant is used to inspect the
drainage work process, One Earth Energy shall pay to Tenant a reasonable hourly fee for Tenant’s
time expended in inspecting the drainage work process.
3. As at least a portion of the drainage work to be completed pursuant to the proposal will be
done upon the remaining Real Estate, One Earth Energy agrees to give at least seven (7) days prior
written notice to Xxxxxx of the intent to commence said work prior to entering the remaining Real
Estate to perform any such work. Further, One Earth Energy agrees that said work will not be
commenced prior to harvest of the 2007 crops located on the Xxxxxx property and will be completed
prior to the planting season for the 2008 crop year.
Notwithstanding the above, in the event One Earth Energy desires to commence said drainage
work prior to harvest of the 2007 crop, One Earth Energy shall pay to Xxxxxx within ten (10) days
of the completion of said work, crop damage for all crops destroyed or damaged in the construction
process at the rate of $680.00 per acre of corn crop damage and $450.00 per acre of soybean crop
damage. Any portion of an acre so damaged will be expensed to the nearest tenth acre based upon
the above crop prices. An independent party, mutually agreed upon by the parties, shall be hired
at One Earth Energy’s expense to determine the amount of any crop damage for which One Earth Energy
is liable pursuant to this Paragraph. In the event completion of the Drainage Plan results in
damage to 2008 crop, it is agreed between the parties that the rate for corn shall be $680.00 per
acre and the rate for soybeans will be $500.00 per acre crop damage.
4. One Earth Energy shall be solely responsible for the developing, constructing, and
maintaining an alternate route to discharge water collected on the
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remaining Real Estate and said discharge will be of sufficient size to allow the drainage at
the same rate at which water is currently carried from the Real Estate.
5. One Earth Energy agrees that it will enter the work area from the Property and not across
the remaining Real Estate owned by Xxxxxx. Xxxxxx hereby grants One Earth Energy the right to
enter the remaining Real Estate for the limited purpose of completing the work required pursuant to
the Proposal and such right shall terminate upon completion of the drainage work.
6. At Closing, One Earth Energy hereby agrees to place the sum of $12,300 in escrow with the
Ford County Title Company. Such funds shall be held in escrow until such time that the contractor
hired by One Earth Energy to complete the Proposal submits evidence to the Ford County Title
Company that such work has been completed and such contractor has been paid in full for all work in
connection with the Proposal.
7. Indemnification. One Earth Energy hereby agrees to indemnify and hold Xxxxxx
harmless against any and all damage to current tile lines affecting or present on the Real Estate
or the remainder of Xxxxxx’x property caused by One Earth Energy’s use or development of the Real
Estate. One Earth Energy shall be solely responsible for the cost of repair and rerouting, if
necessary, of the tile line to adequately support the Real Estate and the remainder of Xxxxxx’x
property. Further, One Earth Energy shall indemnify and hold harmless Xxxxxx for any damage to
Xxxxxx’x remaining property caused by the increase of surface water flowage onto and over Xxxxxx’x
remaining property due to the re-routing of the present tile lines or to One Earth Energy’s
development of the Real Estate. This paragraph shall survive One Earth Energy’s purchase of the
Real Estate. Said indemnification and hold harmless given by One Earth Energy to Xxxxxx shall
include all costs of suit and reasonable attorneys fees and reasonable compensation for Xxxxxx’x
time incurred or expended by Xxxxxx in enforcing the terms and provisions herein.
8. Binding Effect. This Agreement shall be binding on the parties hereto, their
successors in interest to the real estate herein, and their assigns. This Agreement shall not be
modified, terminated or revoked unless agreed to in writing and signed by the parties hereto. This
Agreement may be executed in counterparts and facsimile signatures shall be binding upon the
parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this AGREEMENT effective as of the
day and year first above written.
ONE EARTH ENERGY, LLC
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XXXXXX: | |||
An Illinois limited liability company |
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/s/Xxxxxx Xxxxx
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/s/Xxxx Xxxxxx | |||
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STATE
OF Illinois |
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COUNTY OF Xxxx |
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On this 15th day of June , 2007, before me, the undersigned, a
Notary Public in and for the State of Illinois , personally appeared Xxxxxx Xxxxx, as
President of One Earth Energy, L.L.C., to me known to be the identical persons named in and who
executed the foregoing instrument on behalf of One Earth Energy, L.L.C., and acknowledged that he
executed the same as his voluntary act and deed.
| /s/Xxx X. Xxxxx | ||||
| Notary Public In and For the State of Illinois | ||||
[Notary Seal]
“OFFICIAL SEAL”
XXX X. XXXXX
NOTARY PUBLIC —STATE OF ILLINOIS
MY COMMISSION EXPIRES: 04/05/10
“OFFICIAL SEAL”
XXX X. XXXXX
NOTARY PUBLIC —STATE OF ILLINOIS
MY COMMISSION EXPIRES: 04/05/10
STATE
OF Illinois |
) | |||||||
| ) | ss. | |||||||
COUNTY OF Xxxx |
) | |||||||
2007 |
On this 15th day of June , 2006, before me, the undersigned, a Notary Public
in and for the State of Illinois, personally appeared Xxxx Xxxxxx to me known to be the
identical person named in and who executed the foregoing instrument, and acknowledged that she
executed the same as her voluntary act and deed.
| Notary Public In and For the State of Illinois | ||||
| /s/Xxxxxx X. Xxxxxx | ||||
[Notary Seal]
“OFFICIAL SEAL”
XXXXXX X. XXXXXX
Notary Public — State of Illinois
My Commission Expires Aug 18, 2010
XXXXXX X. XXXXXX
Notary Public — State of Illinois
My Commission Expires Aug 18, 2010
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EXHIBIT A
The West Half of the Southeast Quarter of Section 3, and the Southwest Quarter of Section
3, all in Township 23 North, Range 0 Xxxx xx xxx Xxxxx Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx,
Xxxxxxxx.
P.I.N. (00) 00-00-000-000; (00) 00-00-000-000
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EXHIBIT B
(34 Acre Portion of Xxxx X. Xxxxxx Land to be Conveyed)
All that part of the South 1204.28 Feet of the South Half of Section 3, Township 23 North, Range 7
East of the Third Principal meridian, Ford County, Illinois, lying east of the Northerly Extension
of the East Line of a tract of land conveyed to Ameren Energy Generating Company by Special
Warranty Deed recorded September 11, 2000, as Document No. 216254 in the Ford County Recorder’s
Office, and lying west of the Northerly Extension of the East Line of the West 250 Feet of the
Northeast Quarter of Section 10, Township 23 North, Range 7 East of the Third Principal Meridian,
Xxxxxx City, Ford County, Illinois.
Said Property contains 34.00 acres, more or less.
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EXHIBIT C
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Prepared by and upon recordation return to Xxxxxxxxxxx Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxx, Xxxx 00000; (000) 000-0000.
OPTION AGREEMENT
THIS OPTION AGREEMENT (the “Agreement”) is executed as of April 17, 2006, by
and between One Earth Energy, LLC, an Illinois limited liability company (“One Earth Energy”), and
Xxxx Xxxxxx, a resident of the State of Illinois (collectively “Grantor”).
W I T N E S S E T H :
WHEREAS, Grantor owns certain property located in Xxxxxx City, Ford County, Illinois, as
legally described in attached EXHIBIT A (the “Real Estate”), and desires to grant One Earth
Energy an option to purchase approximately thirty-four (34) acres (subject to survey) of such Real
Estate (the “Option Property”) located in the south central portion of the Real Estate approximated
on the attached Exhibit “B” upon the general terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. Option; Term; Exercise. Grantor hereby grants One Earth Energy an option (the
“Option”) to purchase the Option Property upon the terms and conditions set forth herein. The term
of the Option shall be for a period of one (1) year, commencing on the date hereof. The Option may
be exercised by One Earth Energy by written notice to Grantor at any time during the Option Period.
In the event that One Earth Energy does not timely exercise the Option, the Option shall become
null and void, and except as hereafter set forth, the parties shall have no continuing obligations
hereunder.
The Option is contingent for sixty (60) days from the execution of this Agreement to allow
Grantor to reasonably satisfy herself that the water table will not be negatively impacted by One
Earth Energy’s proposed use of the Option Property
2. Option Price; Termination. The option price (the “Option Price”) is Ten Thousand
Dollars ($10,000.00), and shall be paid to Grantor upon Grantor’s execution of this Agreement. If
One Earth Energy exercises the Option, the Option Price shall be applied to the Purchase Price. If
the Option is not exercised, except as otherwise provided herein, the Option Price shall be
forfeited by One Earth Energy.
3. Purchase Price. The purchase price (the “Purchase Price”) for the Option
Property shall be twelve thousand dollars ($12,000.00) per acre if the Option is exercised
during the first nine (9) months of the Option Period, and fourteen thousand dollars
($14,000.00) per acre if the Option is exercised during the final three (3) months of the
Option Period, and shall be payable at Closing (as hereinafter defined), with adjustments
and prorations for customary closing costs such as real estate taxes, transfer taxes,
utilities and other matters. One Earth Energy shall bear responsibility for the costs of
title insurance and transfer taxes at Closing.
4. Right to Access Property. Grantor shall permit One Earth Energy and its
designees access to the Real Estate and the Option Property to prepare the survey referred
to in Section 5 below and to perform soil borings and other due diligence during the Option
Period. One Earth Energy and its designees shall provide Grantor with satisfactory evidence
of liability insurance and shall hold Grantor harmless from and against any claim for
property damage (including, without limitation, crop or tile damage) or personal injury
resulting therefrom.
5. Survey. Upon One Earth Energy’s exercise of the Option, One Earth Energy, at its
sole expense, shall have the Real Estate surveyed to precisely describe the Option Property.
In no event will the Option Property include the pond located on the Real Estate
6. Taxes and Assessments; Risk of Loss. Grantor shall pay all real estate taxes that
are a lien on the Option Property. Grantor shall give One Earth Energy a credit at Closing for
Grantor’s prorated share of the real estate taxes for the fiscal year in which Closing occurs,
based upon the Closing Date and the last known actual real estate taxes payable according to public
record. One Earth Energy shall pay all other real estate taxes. Grantor shall pay all special
assessments which are a lien on the Option Property as of the Closing Date. One Earth Energy shall
pay all other special assessments. Risk of loss shall remain with Grantor until Closing. Grantor
agrees to maintain existing insurance until Closing.
7. Title. Within fifteen (15) days of One Earth Energy’s exercise of the Option,
Grantor shall deliver to One Earth Energy a preliminary Land Title Association owner’s title
insurance commitment, and at Closing Grantor shall cause the title insurance company to
issue an owner’s policy of title insurance to One Earth Energy, in the amount of the
Purchase Price, issued by a title company reasonably acceptable to One Earth Energy with
respect to the Option Property. Such title insurance commitment and policy shall show
marketable fee simple title in Grantor in conformity with this Agreement and Illinois law,
free and clear of all liens, mortgage and encumbrances. Grantor shall cure/remove prior to
Closing any title objections raised by One Earth Energy. If Grantor fails to remove any
title objections prior to Closing, One Earth Energy may, in its discretion: (a) terminate
this Agreement without liability, in which case the Option Fee shall be returned to One
Earth Energy, without limiting any other remedies that One Earth Energy may have; or (b)
take title subject to the objection.
8. Representations and Warranties; Termination of Farm Tenancy. Grantor warrants and
represents to One Earth Energy that Grantor will, on the Closing Date, convey to One Earth
Energy good and marketable title to the Option Property free and clear of any and all liens,
mortgages and encumbrances, subject only to real estate taxes and assessments which are One Earth
Energy’s
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responsibility under Section 6 above, easements, rights-of-way, streets, and any other matters
affecting title which One Earth Energy agrees to take title subject to pursuant to Section 7.
In the event One Earth Energy exercises the Option, Grantor agrees to cooperate with One
Earth Energy in providing whatever notices are legally required to terminate the farm tenancy of
Xxxxxxxx Enterprises with respect to the Option Property at the conclusion of the 2006 crop year.
9. Acts Prior to Closing. From the date hereof until Closing: (i) One Earth Energy
and its designees shall have the right * to enter the Real Estate and the Option Property to
conduct inspections, studies and investigations; (ii) Grantor shall keep and preserve the Option
Property in its present condition; and (iii) Grantor shall not enter into, modify or terminate any
agreement relating to or affecting the Option Property which will extend in force beyond the
Closing Date.
10. Closing. The consummation of the transactions contemplated by this Agreement (the
“Closing”) shall take place at a date (the “Closing Date”), time and place mutually agreeable to
the parties, but in no event later than ninety (90) days from the later of: (i) One Earth Energy’s
exercise of the Option; or (ii) Grantor’s delivery of the title insurance commitment pursuant to
Section 7 above.
11. Closing Obligations. At Closing: (i) Grantor shall execute and deliver to One
Earth Energy a Warranty Deed conveying the Option Property to One Earth Energy in accordance with
the terms of this Agreement, along with any other documents necessary to convey marketable title of
the Option Property or to effectuate a closing of the transaction contemplated by this Agreement;
and (ii) One Earth Energy shall deliver to Grantor the Purchase Price and any documents reasonably
necessary to effectuate a closing of the transaction contemplated by this Agreement.
12. Default; Remedies. If either party breaches this Agreement, the other party shall
be entitled to exercise any and all remedies or actions at law or in equity available to it,
including, but not limited to, specific performance.
13. Effectiveness. This Agreement shall become effective only upon execution by
Grantor and return of an executed original hereof to One Earth Energy on or before April ___, 2006.
Upon execution by Grantor prior to such date, Grantor shall insert the date of Grantor’s execution
hereof in the first line hereof, which shall be deemed the effective date of this Agreement. In
the event this Agreement has not been executed and delivered by Grantor to One Earth Energy on or
prior to such date, it shall be null and void and of no force or effect.
14. Recordable Form; Additional Documents. Either party may record this document or a
memorandum hereof, and both parties agree to execute such other instruments or agreements in
recordable form as the other party may request (including, without limitation, a Contract For Sale
of Real Estate) to effectuate the terms of this Agreement.
15. Indemnification. One Earth Energy hereby agrees to indemnify and hold harmless
Grantor for any and all damage to current tile lines effecting or present on the Option
Property or the remaining Real Estate caused by One Earth Energy’s use or development of the Option
Property. One Earth Energy shall be solely responsible for the cost of repair and rerouting, if
necessary, of the
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tile line to adequately drain the remaining Real Estate as it was prior to One Earth Energy’s
development. Further, One Earth Energy shall indemnify and hold harmless Grantor for any damage to
the remaining Real Estate caused by the increase of surface water flowage onto and over the
remaining Real Estate due to One Earth Energy’s development of the Option Property. One Earth
Energy shall be solely responsible for the cost of construction of a retention pond pursuant to
regulations promulgated by the Illinois Department of Natural Resources and Environmental
Protection Agency.
16. Miscellaneous. This Agreement, including the recitals set forth above and any
exhibits attached hereto, constitutes the entire understanding between the parties concerning the
subject matter hereof. This Agreement shall be governed by and construed in accordance with
Illinois law, and shall not be modified except in a writing signed by all parties. All notices
hereunder shall be in writing. This Agreement is binding upon the parties and their heirs,
representatives, agents, successors and permitted assigns. Time is of the essence with respect to
this Agreement and all dates and timelines set forth herein. This Agreement may be assigned by One
Earth Energy upon written notice to Grantor. Except as provided in the preceding sentence, neither
this Agreement nor any parties’ rights or obligations shall be assigned without the prior written
consent of the other party. If any provision herein is held to be invalid or unenforceable, the
remaining provisions shall not be affected. No omission or delay by either party in enforcing any
right or remedy or in requiring any performance hereunder shall constitute a waiver. The remedies
herein are cumulative and in addition to all other remedies available at law and in equity. The
headings contained herein are for convenience only and shall not be considered in interpreting this
Agreement. All covenants, warranties, representations and indemnification obligations set forth in
this Agreement shall survive the termination or expiration hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this OPTION AGREEMENT effective as
of the day and year first above written.
ONE EARTH ENERGY, LLC
|
GRANTOR: | |||
An Illinois limited liability company |
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/s/Xxxxxx Xxxxx
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/s/Xxxx Xxxxxx | |||
STATE
OF ILLINOIS |
) | |||||||
| ) | ss. | |||||||
COUNTY OF FORD |
) | [/s/ JKD] | ||||||
On this 17 day of April , 2006, before me, the undersigned, a Notary Public in
and for the State of Illinois , personally appeared Xxxxxx Xxxxx, as President of One
Earth Energy, L.L.C., to me known to be the identical persons named in and who executed the
foregoing instrument on behalf of One Earth Energy, L.L.C., and acknowledged that he executed the
same as his voluntary act and deed.
| /s/Xxxxx X. Xxxxx | ||||
| Notary Public In and For the State of Illinois | ||||
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[Notary Seal]
“OFFICIAL SEAL”
Xxxxx X. Xxxxx
Notary Public, State of Illinois
My commission Expires 00-00-0000
“OFFICIAL SEAL”
Xxxxx X. Xxxxx
Notary Public, State of Illinois
My commission Expires 00-00-0000
XXXXX
XX XXXXXXXX |
) | |||||||
| ) | ss. | |||||||
COUNTY OF XXXX
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) | |||||||
On this 13th day of April , 2006, before me, the undersigned, a Notary Public
in and for the State of Illinois , personally appeared Xxxx Xxxxxx to me known to be the
identical person named in and who executed the foregoing instrument, and acknowledged that she
executed the same as her voluntary act and deed.
| /s/Xxxxx Xxxxx | ||||
| Notary Public In and For the State of Illinois | ||||
[Notary Seal]
“OFFICIAL SEAL”
XXXXX XXXXX
Notary Public, State of Illinois
My commission Expires 07-25-2009
“OFFICIAL SEAL”
XXXXX XXXXX
Notary Public, State of Illinois
My commission Expires 07-25-2009
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EXHIBIT A
[Attach legal description of Real Estate]
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EXHIBIT A
The West Half of the Southeast Quarter of Section 3, and the Southwest Quarter of Section
3, all in Township 23 North, Range 0 Xxxx xx xxx Xxxxx Xxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx,
Xxxxxxxx.
P.I.N. (00) 00-00-000-000; (00) 00-00-000-000
