CONTRACT OF SALE
Agreement
made as of the Effective time (as hereinafter defined) between EAST COAST
ETHANOL,
LLC ("Purchaser") and L & C DEVELOPMENT CORPORATION ("Seller").
1. DEFINITIONS_
As used herein the following terms shall have the following meanings:
A.
Property
- Laud consisting of approximately 319 acres in Xxxxxxx County, South
Carolina, and being generally shown or described on the attached Exhibit
"A", initially
for purposes of bio-fuel and by-product production.
B.
Purchase
Price - Seven Thousand Five -Hundred
Dollars ($7,500.00) per acre to be calculated based on final survey as
hereinafter provided.
C. Initial
Xxxxxxx Money
-
Ten
Thousand Dollars ($10,000.00).
D. Extension
Deposit(s): - Twenty Thousand Dollars ($20,000.00) each.
X. Xxxxxxx
Money - The Initial Xxxxxxx Money and, if deposited, any Extension
Deposit, together with any interest earned thereon.
F. Escrow
Agent - Folks Xxxxxx & XxXxxxx, 0000 Xxxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxxxxx, XX 00000, Telephone: 000-000-0000, Telecopy: 803-286-8528.
G. Effective
Date - The date on which this Contract has been duly executed by
both
parties as
indicated by the dates beside the signature of each party and delivered to
Purchaser.
If this Contract is not executed by both parties on or before September 21,
2007, it shall
become null and void and neither party shall have any legal or financial
recourse against the other
party.
H. Inspection
Period
- The
period ending on the two hundred seventieth (270th)
day following the Effective Date, as same may be extended pursuant to this
Contract.
I. Closing
Date - The thirtieth (30th) day following the end of the Inspection
Period.
II. PURCHASE
AND SALE.
A. Seller
agrees to sell and Purchaser agrees to buy the Property for the Purchase Price
subject to the terms and conditions hereof.
B. Seller
shall have the exclusive right to repurchase the Property from Purchaser for
the
same Purchase Price paid by Purchaser if Purchaser fails to begin construction
of the proposed facility within two (2) years from the Closing Date (the
“Repurchase Right”). The Repurchase Right shall exist for a period of ninety
(90) days following the second anniversary of Closing (the “Window”) and must be
exercised during said ninety (90) day period by thirty (30) days written notice
(the “Repurchase Notice”) from Seller to Purchaser. The repurchase pursuant to
the Repurchase Right shall close within sixty (60) days following Repurchase
Notice. Notwithstanding anything herein to the contrary, if construction is
commenced during the aforesaid thirty (30) day notice period the Repurchase
Right shall terminate.
C. If
Seller
does not give the Repurchase Notice within the Window or if the Repurchase
Notice is given and Seller fails to close the repurchase within sixty (60)
days
thereafter
(other than on account of Purchaser’s failure to perform)
the Repurchase Right shall terminate and Purchaser shall be
entitled to use or sell the Property free of the Repurchase Right and
any
use restrictions.
III. ESCROW
DEPOSIT. Upon the execution hereof Purchaser shall deposit the Initial
Xxxxxxx Money with Escrow Agent. The Xxxxxxx Money shall be deposited into
an
FDIC insured
account. Interest, if any, shall accrue for the benefit of Purchaser (but shall
be paid to Seller
if
Purchaser defaults). In the event Purchaser has the right to and elects to
terminate this Contract or allows same to terminate as prrovided herein, Escrow
Agent shall refund the Xxxxxxx Money
upon receipt of notice of such termination. At closing Escrow Agent shall pay
the Xxxxxxx
Money to Seller to be credited against the Purchase Price. Notwithstanding
anything in this
Contract to the contrary, if Escrow Agent receives notice of termination from
Purchaser, or Purchaser's
attorneys, prior to the end of the initial two hundred seventy (270) day
Inspection Period
Escrow Agent shall and is ___________ directed by Seller to refund the Xxxxxxx
Money to Purchaser.
All Xxxxxxx Money shall be applicable to the Purchase Price.
IV. CLOSING
DATE. The closing shall occur at the offices of Escrow Agent or another
mutually agreeable location on the Closing Date or such earlier date established
by Purchaser
on reasonable notice to Seller.
V. CLOSING.
At Closing Purchaser shall tender the Purchase Price (plus or minus normal
closing adjustments) by cashiers check or wire transfer of collected funds
and
Seller shall deliver
the following:
A. A
duly
executed limited warranty deed conveying marketable fee simple title
in
the Property to Purchaser subject to easements, conditions, and restrictions
of
record as of the
date
hereof.
B. An
owner's affidavit sufficient to enable Purchaser's title insurance company
to delete exceptions as to mechanic's liens (other then mechanic's liens or
potential mechanic's liens
which might arise as a result of activities of Purchaser), other monetary liens
and
other
matters to the extent not inconsistent with a limited warranty
deed.
C. If
Seller
is not a foreign person, a certificate and affidavit of non-foreign status
(FIRPTA affidavit), and if Seller is not a qualified United States taxpayer
the
appropriate amount
shall be withheld according to law.
D. Possession
of the property, subject to existing tenancies.
E. Such
other documents as Purchaser may reasonably request.
VI. PRORAT1ONS
AND EXPENSES; COMMISSIONS.
A. Real
property taxes attributable to the year of Closing shall be prorated at Closing
with Seller giving Purchaser a credit against the Purchase Price for Seller's
share. If current
tax bills are not immediately available, such prorations shall be made on the
basis of the taxes
assessed for the preceding year and such proration shall be final. Seller shall
pay one-half (1/2)
of
the rollback taxes in connection with the Property.
B. Rents,
water rent, and all other items customarily prorated shall be prorated at
Closing.
C. Purchaser
and Seller represent that each has dealt with no real estate companies in
connection with this transaction.
D. Seller
shall pay for its own attorneys' fees, one-half (1/2) of the survey costs,
and for deed recording and/or transfer fees based in whole or in part upon
the
consideration
for or value of the Property. Purchaser shall pay all other closing costs,
including its
own
attorneys' fees, title examination, title insurance premiums, and one-half
(1/2)
of the
survey
costs.
VII. TITLE.
Seller
shall convey to Purchaser at Closing marketable fee simple title in
and to
the Property. For the purpose of this Contract, “marketable fee simple title"
shall mean
fee
simple ownership which is: free of all claims, liens and encumbrances of any
kind or
nature
whatsoever other than the Permitted Exceptions (as hereinafter defined); and
(ii) insurable
by a title insurance company reasonably acceptable to Purchaser, at then current
standard
rates under the ALTA Owner's Policy of Title Insurance with all standard printed
exceptions
therein deleted and without exception other than for the Permitted Exceptions.
For the
purposes of this Contract, the term “Permitted Exceptions" shall
mean:
(i)
current city, state, and county ad valorem taxes not yet due and payable; (ii)
easements for the installation or maintenance
of public utilities serving only the Property provided same do not interfere
with development
and use of the Property Purchaser; and (iii) all, if any, other easements of
record as
of the
date of Seller's execution of this Contract provided same do not interfere
with
the development
and use of the Property by Purchaser or render title unmarketable. Seller will
use reasonable
efforts to eliminate claims, liens, and encumbrances
other than Permitted Exceptions. Notwithstanding
anything herein to the contrary, if Seller is unable to convey marketable fee
simple
title as herein provided (and same
is
not caused by the willful act of Seller), Purchaser's sole
remedy shall be to terminate this Contract and receive a refund of the Xxxxxxx
Money or accept Seller's title "as is" without any reduction in the Purchase
Price and Seller thereafter shall have
no
liability to Purchaser.
VIII. SURVEYS
AND STUDIES
A. During
the Inspection Period Purchaser shall be permitted to enter the Property
and to inspect and evaluate the Property, to conduct studies thereon, and to
interview Tenants.
If Purchaser determines for an reason that the Property is not suitable for
Purchaser’s purposes.
Purchaser may terminate this Contract upon written notice to Seller and to
Escrow Agent
prior to the end of the Inspection Period whereupon the Xxxxxxx Money shall
be
refunded to Purchaser.
B. Purchaser
may extend the Inspection Period for up to two (2) additional consecutive ninety
(90) day periods by giving notice of such extension(s) to Seller and paying
an
Extension
Deposit to Escrow Agent Rum to the expiration of the Inspection Period
(including previous
extensions). All Xxxxxxx Money shall be deemed to be "at risk" and
non-refundable but for
Seller's default when the first Extension Deposit has been paid.
C. If
Purchaser desires to continue this Contract beyond the initial two hundred
seventy (270) day Inspection Period it shall give written notice or same to
Seller within the
next
business day following the end of the initial two hundred seventy (270) day
Inspection Period
whereupon the Xxxxxxx Money shall be deemed “at risk” and non-refundable but for
Seller's
default. During the Inspection Period Seller shall promptly provide Purchaser
with information
and documentation (to the extent same is reasonably available) requested try
Purchaser to facilitate its evaluation of the Property.
D. Purchaser
shall hold Seller harmless from any damage caused by Purchaser,
its agents or contractors, in the course of conducting such surveys and/or
studies. The indemnities
herein shall expressly survey the Closing or the termination of this Contract
and shall
be
in addition to any liquidated damage provisions contained in this
Contract.
E. Prior
to
Closing Purchaser shall cause the Property to be surveyed by a registered
land surveyor reasonably satisfactory to Seller. The surveyor shall certify
the
land area
to
the nearest thousandth of an acre and the Purchase Price shall be calculated
based thereon.
IX.
DEFAULT.
A. If
Purchaser fails to consummate the purchase as herein provided, except in the
event of a default by Seller or failure for any conditions to Closing to have
been satisfied, Purchaser
and Seller have agreed that Purchaser shall pay the Xxxxxxx Money to Seller
as
liquidated
damages for Purchaser's failure to consummate the purchase as herein provided
and as Seller's
sole remedy.
B. If
Seller
fails to consummate the sale and is in default hereof, Purchaser shall
be
entitled to terminate this Contract and receive a refund of the Xxxxxxx Money
and proceed
to enforce this Contract by an action of specific performance in a court of
competent jurisdiction.
Purchaser shall not be entitled to recover damages from Seller except in the
event of
Seller's willful default.
C. In
the
event of a legal action between Purchaser and Seller pursuant to the
Contract,
the prevailing party shall be entitled to recover reasonable attorneys' fees
and
costs from the other.
X. “AS
IS”
CONDITION/ENVIRONMENTAL.
A.
Purchaser
acknowledges that it is purchasing the Property “AS IS" as
of
the
date
hereof and not on the basis of representations or warranties made by Seller
(or
anyone claiming
to act on Setter's behalf) either express or implied other than as set forth
or
provided for herein.
B. Seller
has no actual knowledge of the presence or existence of any asbestos, toxins,
or
hazardous substances (as defined or regulated by applicable federal, state,
or
local laws) or contamination upon or under the Property.
XI. RAIL
CONTRACT. Sellers affiliate is L&C Railway Company (the "Railroad").
Purchaser
anticipates that its intended business will create a shipping volume of at
least
5,000 rail cars per year. This prospect is an inducement to Seller and the
fact
that rail service is available
to the Property is an inducement to Purchaser.
It shall be a condition of Closing that Purchaser
and the Railroad enter into a shipping contract that shall meet the requirements
of both Purchaser and the Railroad
in regard to the Railroad local rates, switching contract, service, and
demurrage. It
shall
also be a condition of Closing that Purchaser guarantee a minimum 5,000 car
annual
shipping volume to the Railroad for the fast five (5)
years
of
the shipping contract. Seller acknowledges
the value of
the
volume guarantee to the Railroad and Seller agrees to assist Purchaser
in the negotiation process with the CSX and NS Railroads to the benefit of
both
Purchaser
and Seller. If Purchaser and the Railroad cannot agree to
said
shipping contract between
Purchaser and the Railroad then neither Purchaser
and/or Seller shall be obligated to close and all Xxxxxxx Money shall be
refunded to Purchaser. The parties shall endeavor to finalize the shipping
contract during the
Inspection Period.
XII. MISCELLANEOUS.
A. This
Contract and all terms, provisions, and covenants contained herein shall
apply to, be binding upon and inure to the benefit of the parties hereto
and their
respective heirs,
executors, administrators, successors and
assigns.
B. The
captions employed in this Connect are for convenience
only and are not
intended to in any way limit or amplify the terms and provisions
hereof.
C. Any
notices, requests, or other communications required or permitted to be given
hereunder shall be in writing and shall be either (i) delivered by hand, (ii)
mailed by United States certified mail, return receipt requested, postage
prepaid, (iii) sent by a reputable, national
overnight delivery service (e.g. Federal Express, Airborne, etc.), or (iv)
sent
by facsimile
(with the
original being sent by one of the other permitted means or by regular United
States
mail) and addressed to each party at the applicable address set forth beside
the
signature of each
party or elsewhere herein. Any such notice, request or other communication
shall
be considered
given or delivered, as the case may be, on the date of hand delivery (if
delivered by hand),
on
the day following deposit in the United. States mail (if sent by United States
certified mail),
on
the next business day following deposit with an overnight delivery service
with
instructions
to deliver on the next day or on the next business day (if sent by overnight
delivery service),
or on the day sent by facsimile sent by facsimile, provided the original is
sent
by one of
the
other permitted means as provided in this paragraph or by regular United States
mail). However,
the time period within which response to any notice or request must be given,
if
any, shall
commence to run from the date of actual receipt of such notice, request, or
other communication
by the addressee thereof. Rejection or other refusal to accept or inability
to
deliver
because of a changed address of which no notice was given shall be deemed to
be
receipt of
the
notice, request, or other communication. By giving a least five (5) days prior
written notice thereof, any party hereto may, from time to time and at any
time,
change its mailing address
hereunder.
D. Pending
consummation of the sale as herein provided, Seller will not impose any
easements, covenants, conditions, restrictions or other encumbrances upon the
Property or any part thereof without prior written consent of Purchase, which
consent shall not be unreasonably withheld.
E. This
Contract constitutes the entire agreement between the parties and no
changes
shall be effective unless in writing signed by the party adversely
affected.
F. All
terms
and conditions of this Contract which by their nature and effect if
required to be observed, kept or performed after closing shall survive the
closing and remain binding upon and for the benefit of the parties hereto until
fully observed, kept or performed.
G.
Any
time
period provided for in this Contract,
the last day of which falls on
a
Saturday, Sunday, or legal holiday, shall be extended until the next following
business day.
H. TIME
IS
OF THE ESSENCE HEREUNDER.
I. CONFIDENTIALITY.
Seller acknowledges Purchaser’s desire that this transaction
and Purchaser's intended use of the Property be held in strict confidence.
Seller agrees
that it shall not disclose the existence of this Contract, the proposed
transaction contemplated
hereby, or Purchaser's intended use of the Property accept as required by law
and as
may be
permitted in writing by Purchaser to make the purchase possible.
SIGNED
SEALED AND DELIVERED as of the date first above set forth.
| Address: | EAST COAST ETHANOL, LLC | |
| |
|
|
|
0000
Xxxxxxxx Xxxx
|
By: | /s/ Xxxxx X. Xxxxxx (SEAL) |
|
Xxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxx
|
Xxxxx X. Xxxxxx, President |
|
| Telephone: 000-000-0000 | ||
| Telecopy: 000-000-0000 | Date: September 12 , 2007 | |
| L & C DEVELOPMENT CORPORATION | ||
| |
|
|
|
000
X. Xxxx Xxxxxx, X.X. Xxx 0000
|
By: | /s/ Xxxxxxx X. Xxxxxx (SEAL) |
|
Xxxxxxxxx,
XX 00000
Attn:
X.X. Xxxxxx
|
Xxxxxxx X. Xxxxxx, President |
|
| Telephone: 000-000-0000 | ||
| Telecopy: 000-000-0000 | Date: September 12 , 2007 | |
EXHIBIT
“A”
Property
L
&
C
DEVELOPMENT CORPORATION
(SITE
“A”, KEY FARM TRACT - PARCEL “A1”)
ALL
THAT
CERTAIN piece, parcel or tract of land situated in Xxxxxxx County, South
Carolina and being a portion of the property as described in Deed Book 572
at
Page 251 and being more particularly bounded and described as
follows:
BEGINNING
at an existing p.k.nail reference xxxx in the intersection of Belt Line Road
S12-335 and Xxxxxxxx Xxxx X00-000: said reference xxxx having South Carolina
State Plane NAD83(2001) Grid Coordinates of 1043142.68 ift NORTH, 1949265.68
ift
EAST: thence the following two (2) calls to the POINT OF BEGINNING: 1)
N73°29’30”W 382.14’ to a p.k.nail set in the center Belt Line Road S12-335 and
Xxxxxxxx Xxxx X00-000; 2) N12°16’38”E226.78’ to a number six rebar set in the
center of the L & C Railway mainline track and the POINT OF BEGINNING; said
point being the southwest most corner of PARCEL “A1”, thence N05°16’59”E 550.30’
to an existing ½” diameter iron pipe; thence N56°39’17”E 3040.82 to an existing
number five rebar; thence N70°15’10”E 502.80 to an existing number five rebar;
thence S85°42’06”E 1869.29’ (passing a number six rebar set at 867.08’) to an
existing number five rebar; thence N00°54’36”W 482.62’ to an existing number
five rebar; thence S82°41’49”E 472.63’ to an existing number five rebar, thence
N00°09’12”W 379.93’ to a number six rebar set; thence S86°35’02”E 1309.51’
(passing an existing ½” diameter bolt at 742.50’ and a number six rebar set at
1144.13’) to the center of Xxxxx Xxxx; thence the following fifteen (15) calls
with the center of Rocky Creek: 1) S26°42’29”E 66.49; 2) S27°44’33”E 170.69’;
3)S08°04’04”E 265.83’; 4) S55°35’36”W 92.50’; 5) S03°15’23”E 188.00’; 6)
S57°46’34”W 46.64’; 7) S02°52’42”E 193.69’; 8) S59°05’19WW 123.06’; 9)
S41°25’36”E 96.41’; 10) S02°52’29”E 255.58’; 11) S70°29’53”E 66.13’; 12)
S13°40’38”W 94.28’; 13)S48°32’10”E101.81’; 15)S42°46’22”E 64.06’; to the center
of Rocky Creek, said point being N42°46’22”W 117.53’ from an existing nail in
the center of the L & C Railway mainline track and the center of Rocky
Creek; said point also being 115.00’ northwest of and perpendicular to the
center of the L & C Railway mainline track; thence S59°07’34”W 1408.74’ to a
point being 115.00’ northwest of and perpendicular to the center of the L &
C Railway mainline track; thence with a circular curve to the right having
an
arc length of 683.63’ a radius of 1785.00’ and a chord bearing and distance of
S70°05’52”W 679.46’ to a point being 115.00’ north of and perpendicular to the
center of the L & C Railway mainline track; thence S81°04’10”W 3172.84’ to a
point being 115.00’ north of and perpendicular to the center of the L & C
Railway mainline track; thence S81°06’42”W 235.45’ to a point being 115.00’
north of and perpendicular to the center of the L & C Railway mainline
track; thence with a circular curve to the right having an arc length of
515.30’; a radius of 1310.00’ and a chord bearing and distance of N87°37’10”W
511.99’ to a point being 115.00’ northeast of and perpendicular to the center of
the L & C Railway mainline track; thence S13°38’59”W 115.00’ to a point
being at the center of the L & C Railway mainline track; thence N76°21’02”W
1451.08’ to a POINT OF BEGINNING and being all of the tract labeled as PARCEL
“A1” and containing 319.45’ ACRES and shown on map of “PLAT OF BOUNDARY SURVEY
FOR L & C DEVELOPMENT CORPORATION, SITE “A” KEY FARM TRACT”, file LTIGCACA
dated September 10th,
2007 as
surveyed by Xxxxxxxx & Associates Professional Land Surveyors.
