STATE OF NORTH CAROLINA OPTION TO PURCHASE
|
STATE
OF NORTH CAROLINA
|
|
|
COUNTY
OF NORTHAMPTON
|
REAL
ESTATE
|
THIS
OPTION TO PURCHASE is made and entered into this the 6th
day
of
July August, 2008, by and between Xx.
X.X. Xxxxxx, Xx. and spouse Xxx. Xxxxx X. Xxxxxx, hereinafter
referred to as "Seller(s)"; and East
Coast Ethanol, LLC, hereinafter
referred to as "Buyer(s)".
STATEMENT
OF PURPOSE
1. Seller
is
the owner in fee simple of that certain tract or parcel
of
land
located in the County of Northampton, State of North Carolina, and is more
particularly described herein as follows: 94.06 +/-acres, Northampton County
Pin
No.
0000-00-0000 and is further described in attached Exhibit A.
2. Buyer
desires to purchase from Seller upon the terms and conditions in this Option,
the said Land, together with all buildings, improvements and fixtures thereon,
all privileges and appurtenances thereto and all rights and interests of Seller
in adjacent or adjoining streets, roads or alleys (all of which are collectively
referred to as the "Property".)
NOW
THEREFORE, in consideration of the mutual covenants contained herein, the
payment of Ten Dollars ($10.00) and other valuable considerations paid by Buyer
to Seller, the receipt of which is hereby acknowledged, Seller hereby grants
and
gives to Buyer, his heirs, successors, assigns or representatives the exclusive
right and option to purchase the above described property upon the following
terms and conditions.
A.
CONSIDERATION
AND TERM. As
consideration for this Option, Buyer shall pay Seller the sum of Seven Thousand
Five Hundred and 00/100 Dollars ($7,500.00) on or before the effective date
of
this option. This Option shall exist for a period of
one
hundred eighty (180) days following the Effective Date of this Option. Buyer
shall be entitled to extend the term of this Option for a maximum of two (2)
additional consecutive ninety (90) day periods on the same terms as are
contained herein upon payment by Buyer to Seller of the sum of Four Thousand
and
00/100
Dollars ($4000.00) per ninety (90) day period prior to the expiration of the
previous term, or any extension thereof.
B. INSPECTIONS:
Buyer,
its agents or representatives, at Buyer's expense and at reasonable times during
normal business hours, shall have the right to enter upon the Property for
the
purpose of inspecting, examining, performing soil boring and other testing,
conducting timber cruises, and surveying the Property. Buyer shall conduct
all
such on-site inspections, examinations, soil boring and other testing, timber
cruises and surveying of the Property in a good and workmanlike manner, and
shall conduct same in a manner that does not unreasonably interfere with
Seller's or any tenant's use and enjoyment of the Property. In that respect,
Buyer shall make reasonable efforts to undertake onsite inspections outside
of
any tenant's business hours and shall give twenty four hours (24) prior notice,
either verbal, faxed or written, to Seller and to those tenants who are
disclosed to the Buyer of any entry onto any tenant's portion of the Property
for the purpose of conducting inspections or other activities. Buyer assumes
all
responsibility for the acts of itself, its agents or representatives in
exercising its rights under this Section B. and agrees to indemnify and hold
Seller and tenant harmless from any damages resulting therefrom. This
indemnification obligation of Buyer shall survive the termination of this
Option, the Closing or other termination of this Agreement. Buyer shall, at
Buyer's expense, promptly repair any damage to the Property caused by Buyer's
entry and on-site inspections. Except as provided herein, Buyer shall have
from
the Effective Date through the end of the term of this Option, or any extension
thereof, to perform the above inspections, examinations and
testing.
C. EXERCISE:
At
any
time during the Option period, Buyer may exercise this Option or extend the
duration as set forth in Section A above by written notice and payment of any
additional funds for extension on or before midnight of the expiration of the
then current option period, to Seller at the following address:
|
Optionor:
|
Xxx.
Xxxxx X. Xxxxxx
|
|
|
0000
Xxxxxx Xxxx
|
||
|
Xxxxxx,
XX 00000
|
||
|
Fax
No:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Copy
to:
|
Xxxxx
Xxxxxxxxxx, Agent for Seller
|
|
|
Xxxxxxxx
Realty & Auction Co.
|
||
|
XX
Xxx 000
|
||
|
Xxxxxxx
Xxxxxx, XX 00000
|
||
|
Fax
No.:
|
||
D. PURCHASE
PRICE: The
purchase price for the Property ("Purchase Price") shall be Seven Thousand
Five
Hundred and 00/100 ($7500.00) per acre, with the final purchase price to be
determined based upon a new survey, and shall be paid by Buyer to Seller in
cash
or by federal wire transfer at Closing. Should Buyer exercise and close on
the
above described property, Buyer shall receive a credit back against the purchase
price of the property equal to amounts paid for the option and
extensions thereto
to be treated as xxxxxxx money (the "Xxxxxxx
Money"), except
in
the case
where
Buyer
defaults
under
this
Option
Agreement, in which case Seller shall be entitled to all amounts paid
by
Buyer
prior to default.
E. CONDITIONS:
Buyer's
obligations
are
in
all
respects
conditioned upon the
following:
(i) All
deeds
of
trust,
liens and
other
charges against
the
Property must
be
paid
and satisfied by Seller prior to
or
at
Closing such that cancellation may be promptly obtained
following
Closing. Seller shall remain
obligated to obtain
any
such
cancellations following Closing.
(ii) Title
must be
delivered
at Closing by GENERAL
WARRANTY DEED
unless otherwise stated herein, and
must
be
fee
simple
marketable and
insurable
title, free
of
all
encumbrances except: ad valorem
taxes
for
the
current
year {prorated through the date of Closing); utility
easements,
outstanding leases
on
the
property
and unviolated
restrictive
covenants that
do
not
materially affect the value of the Property; and
such
other
encumbrances as
may be
assumed
or
specifically
approved by Buyer.
The
Property must have legal
access
to
a
public
right
of
way.
F. CLOSING:
Closing
shall occur
on
or
before
forty
five (45) days
after the
exercise
of
the
Option
by
Buyer to purchase the property
("Closing")
by
a
lawyer
selected by
the
Buyer
and
at
such
time and
place
mutually agreed upon by the parties.
G. CLOSING
DOCUMENTS:
At
Closing, Seller shall execute and deliver to Buyer the following
documents:
1. The
General Warranty
Deed
2. An
affidavit
in
form
and content acceptable to the
Title
Insurer that Seller is in undisputed possession of
the
Property and that there are no laborers', materialmen's, mechanics' or
construction liens which are pending or which may be asserted against the
Property.
H. CLOSING
COSTS/PRORATIONS: Seller
shall pay for the preparation of the Deed, North Carolina excise stamp tax,
Seller's ad valorem personal property taxes for
the
year
of
closing, any real estate commissions owed by Seller, and Seller's attorney's
fees.
Buyer
shall pay for
the
Title
Commitment, Survey, and any costs associated with the Tests or any loan(s)
to
Buyer and Buyer's attorney's fees. Ad
valorem real property taxes applicable to the Property will be prorated as
of
the Closing. The Seller is entitled to rents for the year in which the
closing
shall occur, if any.
I. REMEDIES:
If
Seller
defaults under this Contract, then Buyer shall be entitled
to
exercise all remedies available to Buyer at law or in equity for
such
default. If Buyer defaults
under
this Contract, then Seller shall be entitled to receive the Xxxxxxx Money as
liquidated damages as well as be entitled to exercise any and all
remedies
available
to
Seller
at law or in equity for
such
default.
J. SEVERABILITY:
If any
term
or
provision of this Contract is declared null, void or unenforceable by any court
having jurisdiction over this Contract, then the
remainder
of this
Contract,
not
so
declared null, void, or unenforceable
shall
remain in full force
and
effect.
K. EFFECTIVE
DATE:
This
Option shall be effective upon the execution hereof by both Buyer and Seller
and, if executed on different dates, the Effective Date shall be the later
of
such dates.
L. NOTICE: Except
as
otherwise set out herein, any notice provided for or
concerning
this agreement shall
be
in
writing and be deemed sufficiently given when sent by email, certified or
registered mail, overnight delivery or facsimile transmission if sent to
the
respective
address or fax number of each
party
and
tenants
whose
names
are
disclosed to Buyer as set forth
in
this
agreement. If
written
addresses and fax numbers of tenants of Seller are not provided to Seller and
attached to the agreement then notice will be deemed provided
to Tenant upon delivery to Seller.
M.
LEASES:
It is known and has been known by the Buyer that the Seller
has
a
current
lease on the property for the purpose of planting
and
harvesting
certain
crops. It
has
been
discussed between
the
parties
the issue
of
leasing the premise and planting crop during the term of the
option.
To that
end
the
parties have
hereto
agreed as follows:
(i) Buyer
agrees
that if it
causes
damage to said crops
through
its activities on the
Premises
as set
out
in
paragraph B or
otherwise,
or if
the
Tenant
is
unable to
harvest
its crops due to Buyer's activities on the premises, that
the
Buyer
will be liable for those
actual
damages arising therefrom.
The
parties agree
that
the
damages
will be calculated
on
a per
acre basis and shall
not
exceed the
value
of one hundred twenty
five
percent
of the average yield per acre
for
that
particular crop with respect to all farm numbers used by tenant in
Northampton
County for the crop year in which such damages occur. If
the
parties can't
agree on
the
amount of
acreage damaged
or the amount of the
damages
done
per
acre
then an arbitrator shall be selected in accordance with laws
of
the
state
of
North
Carolina who shall determine said damages on the basis as set
out
herein.
(ii) In
the
event
the Buyer elects to extend the option after the first one
hundred
eighty
day
period, the Seller
shall cause
the
termination
of
the
lease
on
the property and have executed a release
of all
claims the tenant may have against both the Buyer
and
Seller.
(iii)
The
Seller has informed the
Buyer
that should it close the
sale
of
the
property pursuant
to
the
terms
of
the
option and
request the same that
he
would
have
all
leases against the property terminated so that
the
Buyer
would take title
free
and
clear of all such leases. To that end, Seller shall terminate the leasehold
with
the
Tenant
and
provide written
notice thereof
to
Buyer
thereof
at
least
72
hours
prior
to
closing that such
termination has occurred. Furthermore,
Seller shall provide to
Buyer
a
written
release
from
Tenant
for
all
claims
it
may have as against the Buyer, Seller or the property itself. Seller shall
be
responsible
for any
and
all costs and damages
resulting
from
such
termination or
releases. Buyer
shall have
the
option
to
waive
this
requirement in whole or
part
and
proceed to
close.
(iv) Since
it
is
contemplated
that
the
property will be
used
for immediate industrial development
by
the
Buyer,
the
Seller
agrees
that he will not
relet
the
property
or
extend
the
terms
of the current lease
without the prior written consent of
the
Buyer
after
Buyer
has
given
notice
to
exercise this option.
IN
WITNESS WHEREOF,
the
parties
hereunto
set his
hand
or
seal,
or
if corporate, has
caused
this
instrument
to be signed in
its
corporate name by its duly authorized
officers and
its
seal
to
be
hereunto affixed by authority of
its
Board
of Directors, the
day
and
year first above written. No winter crops will be planted without buyer's
written permission. DKP 8/6/08
|
/s/
X.X. Xxxxxx, Xx.
|
(Seal)
|
/s/
D. Xxxxx Xxxxxxx
|
(Seal)
|
|
|
Xx.
X.X. Xxxxxx, XX. Seller
|
East
Coast Ethanol, LLC, Buyer
|
|||
|
Date:
8-11-08
|
By:
D. Xxxxx Xxxxxxx
|
|||
|
Title:
Manager (Vice President)
|
||||
|
/s/
Xxx. Xxxxx X. Xxxxxx
|
(Seal)
|
/s/
Xxxx Ropsanna Xxxxxxxx
|
||
|
Notary
|
||||
|
August
19, 2008
|
||||
|
Date
|
||||
|
July
13, 2009
|
||||
|
My
Commission Expires
|
North
Carolina
Northampton
County
I
certify
that the personally
appeared
before
me
this day, each
acknowledging
to me
that
he
or she
voluntarily
signed the foregoing document for
the
purpose
stated therein and
in
the
capacity indicated:
Xx. X.X. Xxxxxx,
Xx.
Date:
August
8,
2008.
|
(Official
Seal)
|
/s/
Xxxx Xxxxxxx Xxxxxxxx
|
|
Notary
Public
|
|
|
Xxxx
Xxxxxxx Xxxxxxxx
|
|
|
Notary's
Printed or Typed Name
|
My
commission expires: July
13,
2009
North
Carolina
Northampton
County
I
certify
that the personally
appeared
before
me
this day, each
acknowledging
to me
that
he
or she
voluntarily
signed the foregoing document for
the
purpose
stated therein and
in
the
capacity indicated:
Xxx. Xxxxx X. Xxxxxx
Date:8-19,
2008.
|
(Official
Seal)
|
/s/
Xxxx Xxxxxxx Xxxxxxxx
|
|
Notary
Public
|
|
|
Xxxx
Xxxxxxx Xxxxxxxx
|
|
|
Notary's
Printed or Typed Name
|
My
commission expires: July
13,
2009
North
Carolina
Harnett
County
I
certify
that the personally
appeared
before
me
this day, each
acknowledging
to me
that
he
or she
voluntarily
signed the foregoing document for
the
purpose
stated therein and
in
the
capacity indicated:
D. Xxxxx Xxxxxxx, manager (Vice President).
Date:
August
6,
2008.
|
/s/
June X. Xxxxxx
|
|
|
Notary
Public
|
|
|
Xxxx
X Xxxxxx
|
|
|
Notary's
Printed or Typed Name
|
My
commission expires: Dec
14,
2008
