STATE OF NORTH CAROLINA OPTION TO PURCHASE
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STATE
OF NORTH CAROLINA
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COUNTY
OF HARNETT
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REAL
ESTATE
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THIS
OPTION TO PURCHASE is made and entered into this the 6
day
of
August,
2008, by and between Xxxxxx
X. Xxxxxxxxxx, unmarried
c/o Xxxx Xxxxxxxxxx, Attorney in Fact, whose
address is XX
Xxx
00
Xxxxxxxx, XX
00000,
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: 319.52
+/-
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 Twenty-Five Thousand and 00/100 Dollars ($25,000.00) 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 Twelve Thousand and
Five
Hundred 00/100 Dollars ($12,500.00) 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:
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Optionor:
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Xxxxxx
X. Xxxxxxxxxx, unmarried
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c/o
Xxxx Xxxxxxxxxx, Attorney in Fact
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XX
Xxx 00
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Xxxxxxxx,
XX 00000
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Fax
No:_________________________
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Copy
to:
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Xxxxx
Xxxxxxxxxx, Agent for Seller
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Xxxxxxxx
Realty & Auction Co.
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XX
Xxx 000
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Xxxxxxx
Xxxxxx, XX 00000
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Fax
No.: _________________________
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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
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2.
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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.
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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 with two years remaining on a five year
leasehold term 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
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/s/
Xxxxxx X. Xxxxxxxxxx by DHP 6/8/08
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SPS
JRS 8/7/08
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/s/
Xxxx X. Xxxxxxxxxx AIF
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(Seal)
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/s/
D. Xxxxx Xxxxxxx
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(Seal)
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Xxxxxx
X. Xxxxxxxxxx, Seller
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East
Coast Ethanol, LLC, Buyer
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Date:
08/07/08
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By:
D. Xxxxx Xxxxxxx
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Title:
Manager (Vice President)
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(Seal)
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,
Seller
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Date: ____________________________________
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North
Carolina
Northampton
County
I
certify
that the following person(s) 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:
Xxxxxx
X.
Xxxxxxxxxx
Date:
8/7,
2008.
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(Official
Seal)
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/s/
Xxxxxxxx X. Xxxxxx
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Notary
Public
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Xxxxxxxx
X. Xxxxxx
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Notary's
Printed or Typed Name
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My
commission expires: 10/28/2011
North
Carolina
Harnett
County
I
certify
that the following person(s) 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:
Aug
6,
2008.
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/s/
June X. Xxxxxx
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Notary
Public
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June
X. Xxxxxx
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Notary's
Printed or Typed Name
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My
commission expires: Dec
14, 2008
