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EXHIBIT 10.29
OPTION AGREEMENT
THIS OPTION AGREEMENT is made by and between XXXXXXX XXXXXXX, an
individual ("Seller") and XXXXXXX'X THUNDER KARTS, INC., a Louisiana
corporation ("Purchaser").
ARTICLE I
GRANT OF OPTION
For and in consideration of the sum of One Hundred Dollars ($100.00)
and other good and valuable consideration (the "Option Consideration"), the
receipt and sufficiency of which are hereby acknowledged by Seller, Seller does
hereby grant to Purchaser the exclusive, irrevocable right and option (the
"Option") to purchase all of that certain tract of land located in the Town of
Roseland, Tangipahoa Parish, Louisiana, being described more fully on Exhibit
"A" which is attached hereto and incorporated herein by reference, including
all interest, if any, of Seller in (i) strips or gores, if any, between the
property described on Exhibit "A" and abutting properties and (ii) any land
lying in or under the bed or any street, alley, road or right-of-way, opened or
proposed, abutting or adjacent to the specifically described property together
with all easements, rights and appurtenances pertaining thereto, and being 3.41
acres, more or less (the "Land").
The Option Consideration shall not be refundable to Purchaser for any
reason, nor shall the amount thereof be applied as a credit to the Purchase
Price (as defined in Section 2.4).
ARTICLE II
OPTION RIGHTS
2.1 Option Period. The Option shall be exercisable for a period
commencing on January 1, 1998 and ending at 12:00 midnight, Central Time,
December 31, 2000 (the "Option Period").
2.2 Termination of Option. In the event that Purchaser fails to
exercise this Option in the manner provided in Section 3.1 within the Option
Period, all of the rights of Purchaser and all liabilities of Seller hereunder
shall cease and terminate without the necessity of any action on the part of
Seller.
2.3 Manner of Exercise of Option. If Purchaser elects to exercise
the Option, it shall deliver notice of exercise to Seller on or before the
expiration of the Option Period. The date on which the notice of exercise is
delivered is referred to as the "Exercise Date."
2.4 Purchase Price. The total purchase price ("Purchase Price")
for the Property shall be Five Hundred Fifty Thousand and No/100 Dollars
($550,000.00), payable in cash at Closing.
ARTICLE III
TITLE AND SURVEY
3.1 Title Commitment. Seller shall, as soon as possible, and not
later than ten (10) days following Purchaser's written request, cause to be
furnished to Purchaser a current ALTA form of Commitment for Owner's Policy of
Title Insurance, extended coverage (the "Title Commitment"), issued through a
title company acceptable to Purchaser ("Title Company"), describing the Land
OPTION AGREEMENT - PAGE 1
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(which legal description, unless and to the extent modified by the survey
prescribed in Section 3.2 below, shall be deemed incorporated into this
Agreement), listing Purchaser as the prospective named insured and showing as
the policy amount the total Purchase Price for the Property. At such time as
Seller causes the Title Commitment to be furnished to Purchaser, Seller shall
further cause to be furnished to Purchaser legible true copies of all
instruments referred to in the Title Commitment as conditions or exceptions to
title to the Land. Purchaser reserves the right to approve or disapprove any
and all exceptions to the title to the Land included in the Title Commitment.
3.2 Survey. Seller shall, as soon as possible and not later than
twenty (20) days following Purchaser's written request, cause to be prepared
and furnished to Purchaser and the Title Company a current survey (the
"Survey") of the Land and Improvements, prepared by a properly licensed
surveyor acceptable to Purchaser and in a form acceptable to Purchaser.
3.3 No Encumbrances. During the term of this Agreement, Seller
shall not permit the Property from being encumbered in any way without the
consent of Purchaser.
ARTICLE IV
CLOSING
4.1 Time and Place of Closing. Provided that all of the
conditions of this Agreement shall have been satisfied prior to or on the
Closing Date (herein so called), the Closing (herein so called) of this
transaction shall take place at the office of the Title Company thirty (30)
"business days" after the Exercise Date, unless another date, place and/or
time, shall be mutually agreed on in writing by the parties.
4.2 Events of Closing. At the Closing:
(a) Seller shall deliver or cause to be delivered to
Purchaser the following:
(1) a General Warranty Deed, (in form and
substance acceptable to Purchaser attached hereto and
incorporated herein), duly executed and acknowledged by
Seller, conveying to Purchaser indefeasible fee simple title
to the Land and Improvements, free and clear of any lien,
encumbrance or exception other than the Permitted Exceptions;
(2) an ALTA Owner's Policy of Title Insurance
(extended coverage) issued by the Title Company conforming to
the requirements of Article IV above insuring Purchaser's
marketable title in the amount of the Purchase Price (the
"Title Policy"). The Title Policy shall be subject to the
Permitted Exceptions and the standard printed exceptions,
except that the Seller shall cause the Title Company to (a)
delete the survey exception, (b) show "none of record" as to
restrictive covenants, except for the Permitted Exceptions,
(c) limit taxes to the year of Closing and subsequent years,
endorsed "not yet due and payable" and subsequent assessments
for prior years due to change in land usage or ownership, (d)
delete any exception for the rights of parties in possession,
(e) delete any exception for visible and apparent easements
and underground easements the existence of which may arise by
virtue of unrecorded grant or use, and (f) delete any
exception for portions of the Property lying within the
boundaries of any roads or roadways.
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(3) a duly executed Affidavit of Non-Foreign
Status;
(4) ad valorem tax statements for the Property
for the calendar year of the Closing (if available and if not
previously presented);
(5) such evidence of the authority and capacity
of Seller and its representatives as Purchaser or the Title
Company may reasonably require.
(b) Purchaser shall deliver or shall cause to be
delivered to Seller the following:
(1) the consideration required pursuant to
Section 2.4 above;
(2) such evidence of the authority and capacity
of Purchaser and its representatives as Seller or the Title
Company may reasonably require.
4.3 Expenses. Purchaser shall pay the cost of any documentary
stamp or other transfer taxes, filing fees, inspection costs, its share of the
prorations as set forth in Section 4.4 hereof, and its own attorneys' fees.
Seller shall pay its proportionate share of the prorations as set forth in
Section 4.4 hereof, its own attorneys' fees, the Survey, and the premium for
the Owner's Policy of Title Insurance (including the cost of the survey
exception deletion). Except as otherwise provided in this Section, all other
expenses hereunder shall be paid by the party incurring such expenses.
4.4 Prorations. Rental income, real and personal property ad
valorem taxes, insurance premiums (if and to the extent that Seller's policies
are assumed by Purchaser), utility charges and other operating expenses shall
be prorated to the Closing, based upon actual days involved. Seller shall be
responsible for all ad valorem taxes for any period prior to the Closing. To
the extent that the amounts of such charges, expenses, and income referred to
in this Section are unavailable at the Closing Date, a readjustment of these
items shall be made within thirty (30) days after the Closing. Both expense
items and income items shall be prorated as of the Closing Date, with Seller
receiving all income for the Closing Date and bearing all expenses for the
Closing Date. In connection with the proration of both real and personal
property ad valorem taxes, if actual tax figures for the year of Closing are
not available at the Closing Date, an estimated, tentative proration of taxes
shall be made using tax figures from the preceding year; however, when actual
taxes for the year of Closing are available, a corrected proration of taxes
shall be made. If such taxes for the year of Closing increase over those for
the preceding year Seller shall pay to Purchaser a pro rata portion of such
increase, computed to the Closing Date, and conversely, if such taxes for the
year of Closing decrease from those of the preceding year Purchaser shall pay
to Seller a pro rata portion of such decrease, computed to the Closing Date,
any such payment to be made within ten (10) days after notification by either
party that such adjustment is necessary. Seller shall, on or before the
Closing Date, furnish to Purchaser and the Title Company all information
necessary to compute the prorations provided for in this Section.
ARTICLE V
MISCELLANEOUS
5.1 Notices. All notices, demands, requests, consents and other
communications required or permitted hereunder shall be in writing, and shall
be deemed to be delivered when actually received, or, if earlier and regardless
of whether actually received (except where receipt is specified in this
Agreement), within three (3) days following deposit in a regularly maintained,
United States
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postage receptacle, fully prepaid, certified mail, return receipt requested,
addressed to the party at its address set forth below or at such other address
as such party may have specified theretofore by notice delivered in accordance
with this Section and actually received by the addressee:
If to Seller: Xxxxxxx Xxxxxxx
000 Xxxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
If to Purchaser: Xxxxxxx'x Thunder Karts, Inc.
Xxxxxxx 00 Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
With a copy to: Looper, Reed, Xxxx & McGraw
4100 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
5.2 Survival. All warranties, representations and agreements
contained herein or arising out of the sale of the Property by Seller to
Purchaser shall survive the Closing hereof.
5.3 Governing Law; Venue. The laws of the State of Louisiana
shall govern the validity, enforcement, and interpretation of this Agreement.
The obligations of the parties are performable and venue for any legal action
arising out of this Agreement shall lie in Tangipahoa Parish, Louisiana.
5.4 Integration; Modification; Waiver. This Agreement constitutes
the complete and final expression of the agreement of the parties relating to
the Property, and supersedes all previous contracts, agreements, and
understandings of the parties, either oral or written, relating to the
Property. This Agreement cannot be modified, or any of the terms hereof
waived, except by an instrument in writing (referring specifically to this
Agreement) executed by the party against whom enforcement of the modification
or waiver is sought.
5.5 Counterpart Execution. This Agreement may be executed in
several counterparts, each of which shall be fully effective as an original and
all of which together shall constitute one and the same instrument.
5.6 Headings; Construction. The headings which have been used
throughout this Agreement have been inserted for convenience of reference only
and do not constitute matter to be construed in interpreting this Agreement.
Words of any gender used in this Agreement shall be held and construed to
include any other gender and words in the singular number shall be held to
include the plural, and vice versa, unless the context requires otherwise. The
words "herein," "hereof," "hereunder" and other similar compounds of the word
"here" when used in this Agreement shall refer to the entire Agreement and not
to any particular provision or section. If the last day of any time period
stated herein shall fall on a Saturday, Sunday or legal holiday, then the
duration of such time period shall be extended so that is shall end on the next
succeeding day which is not a Saturday, Sunday or legal holiday. The term
"business days" shall mean any day of the week other than Saturday, Sunday or a
holiday.
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5.7 Invalid Provisions. If any one or more of the provisions of
this Agreement, or the applicability of any such provision to a specific
situation, shall be held invalid or unenforceable, such provision shall be
modified to the minimum extent necessary to make it or its application valid
and enforceable, and the validity and enforceability of all other provisions of
this Agreement and all other applications of any such provision shall not be
affected thereby.
5.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Seller and Purchaser, and their respective heirs,
personal representatives, successors and assigns. Purchaser may assign its
rights hereunder without the prior consent of Seller. Upon acceptance of any
such assignment by the assignee and the assumption of Purchaser's obligations
hereunder, Purchaser shall be relieved of all duties and obligations hereunder.
Except as expressly provided herein, nothing in this Agreement is intended to
confer on any person, other than the parties hereto and their respective heirs,
personal representatives, successors and assigns, any rights or remedies under
or by reason of this Agreement.
5.9 Further Acts. In addition to the acts recited in this
Agreement to be performed by Seller and Purchaser, Seller and Purchaser agree
to perform or cause to be performed at the Closing or after the Closing any and
all such further acts as may be reasonably necessary to consummate the
transactions contemplated hereby.
5.10 Date of Agreement. The date of this Agreement shall for all
purposes be the date of the signature of the last to sign of the parties
hereto.
5.11 Time of the Essence. Time is of the essence herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on this 15th day of March, 1996.
SELLER:
/s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
PURCHASER:
XXXXXXX'X THUNDER KARTS, INC.
By: /s/ V. XXXX XXXXXXXX
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Name:
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Title:
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