ASSIGNMENT OF OPTION TO PURCHASE
AND GRANT OF OPTION TO PURCHASE
THIS ASSIGNMENT OF OPTION TO PURCHASE AND GRANT OF OPTION TO PURCHASE (the
"Assignment") dated as of March 29, 2001 is made and entered into by and between
PEAPOD, INC., a Delaware corporation ("Assignor" or "Peapod"), and ARP LAKE
ZURICH LLC, a Delaware limited liability company ("Assignee" or "ARP").
WHEREAS, pursuant to a certain Real Estate Sale Contract (the "Contract")
dated as of April 1, 1999, and as more fully described therein, LZCP Investors,
L.L.C., an Illinois limited liability company, granted to Beacon Home Direct,
Inc. ("Beacon") an option to purchase the land identified on Exhibit A attached
hereto and made a part hereof (the "Land") on the terms and conditions set forth
at Sections 32-35 of the Contract. Said option (the "Beacon Option") is recorded
with the Lake County Recorder as document number ____________ and expires
December 31, 2004;
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of
September 7, 2000, among Assignor, Beacon, et. al., Assignor acquired all of the
assets of Beacon; and
WHEREAS, Assignor desires to assign the Beacon Option to Assignee and
Assignee desires to grant to Assignor a subsequent option to purchase any
interest that Assignee might acquire in the Land subject to the terms and
conditions of this Assignment.
NOW THEREFORE, in consideration of the foregoing recitals, the covenants
and agreements herein contained, and for other good and valuable consideration
exchanged between them, the parties agree as follows:
1. Assignment. Assignor hereby assigns to Assignee and Assignee hereby
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accepts and assumes from Assignor all of Assignor's right, title and interest in
and to the Beacon Option. Assignee agrees to undertake, perform, defend and
discharge each and every duty, obligation and liability that may arise under or
with respect to the exercise of the Beacon Option. Assignee shall have and
possess all of the rights and privileges of the Beacon Option and any rights or
privileges which may ensue after the exercise thereof.
2. Certification and Consent. Assignor hereby certifies that (i) the terms
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and conditions of the Beacon Option at Sections 32 - 35 of the Contract attached
hereto as Exhibit B are true, complete and in full force and effect and (ii)
there are no amendments thereto. All terms and conditions of the Beacon Option
shall remain in full force and effect and shall be deemed unchanged, except to
the extent expressly provided herein.
3. Peapod Option. Assignee hereby grants to Assignor an option to purchase
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any right, title and interest that Assignee might acquire in the Land, subject
to the terms and conditions attached hereto as Exhibit C and made a part hereof.
ARP and
Peapod shall prepare and record a memorandum of Peapod's option rights which
shall include a provision for its termination in accordance with the terms and
conditions at Exhibit C.
4. Authority. Assignor and Assignee each represent and warrant that: (a) it
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has full power and authority to execute, deliver and perform this Assignment;
(b) the execution, delivery and performance of this Assignment has been duly
authorized by its Board of Directors and does not require further authorization
or consent from any other person or entity; and (c) the Assignment has been duly
authorized, executed and delivered and is enforceable in accordance with its
terms, except as such legality, validity, binding effect or enforcement may be
limited by bankruptcy, insolvency or similar laws effecting creditor's rights
generally or by equitable principles relating to the availability of remedies.
5. Notices. Notices shall be in writing executed by an authorized person
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and delivered personally, by registered or certified mail, courier, or
facsimile. To the extent any notices are delivered pursuant to the terms and
conditions of the Beacon Option or the Peapod Option (as defined in Exhibit C),
the provisions of this Paragraph 5 shall remain subject thereto and shall not be
construed in any way to contradict, lessen or expand the notice requirements
under either of the Beacon Option or the Peapod Option. Notice shall be deemed
to have been delivered by facsimile upon confirmed receipt and, by mail or
courier, upon the earlier of (i) receipt or (ii) five business (5) days after
the notice is deposited in the mail or placed with the courier for delivery to
the intended party to this Agreement at the following address (or at such other
address as that party may designate in writing):
If to Assignor (Peapod):
Peapod, Inc.
0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Voice Confirmation No.: (000) 000-0000
If to Assignee (ARP):
ARP Lake Zurich LLC
c/o Ahold Real Properties, LLC
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Voice Confirmation No.: (000) 000-0000
6. Governing Law. This Assignment shall be governed and construed in
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accordance with the laws of the State of Illinois without reference to its
conflicts of laws principles.
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7. Counterparts. This Assignment may be executed in multiple counterparts,
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all of which when taken together shall constitute one and the same instrument.
The signatures may be delivered via facsimile and shall be deemed effective upon
such delivery; however, the original signature for each facsimile signature
shall be promptly forwarded to the other party via U.S. mail or reputable
courier.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed
the day and year first above written.
Assignor:
PEAPOD, INC, a Delaware corporation.
By: /s/ Xxxx xxx Xxxxxx
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Name: Xxxx xxx Xxxxxx
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Title: President and CEO
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Assignee:
ARP LAKE ZURICH LLC, a Delaware
limited liability company.
By: AHOLD REAL PROPERTIES LLC,
its sole member
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Vice President
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EXHIBIT A
Description of the Land
(see attached)
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EXHIBIT B
Real Estate Sale Contract
(see attached)
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EXHIBIT C
Peapod Option/1/
ARP hereby grants to Peapod, until December 31, 2004 (unless sooner
terminated as provided below), the option to purchase all right, title and
interest that ARP might acquire in the Land identified on Exhibit A of the
Assignment to which this Exhibit C is attached in accordance with the terms
below (the "Peapod Option").
The purchase price for all right, title and interest Land shall be adjusted
to an amount which is equal to the actual costs incurred by ARP to acquire, hold
and maintain the Land, plus an additional 8.00% per annum from the time the
actual costs are incurred, prorated for any partial year (the "Purchase Price")
as set forth in a certificate to be delivered by ARP to Peapod following receipt
of the Peapod Option Exercise Notice (as defined below).
Subject to early termination as provided below, Peapod shall exercise the
Peapod Option by service of written notice upon ARP (the "Peapod Option Exercise
Notice") on or before December 31, 2004, or the Peapod Option shall lapse and be
of no further force and effect. However, ARP may accept an offer from a third
party provided that ARP shall first notify Peapod that ARP intends to enter into
negotiations with a third party to sell all or a portion of the Land (the "Third
Party Notice"), which Third Party Notice shall specify that part of the Land
that ARP intends to sell (the "Offered Property"). Peapod shall have fifteen
(15) days from receipt of the Third Party Notice to elect to exercise the Peapod
Option. If Peapod exercises the Peapod Option during the fifteen (15) day
period, the Peapod Option Exercise Notice must specify that Peapod elects to
exercise the Peapod Option for either (i) the entire Offered Property, or (ii)
the Land. In the event that Peapod fails during the fifteen (15) day period to
exercise the Peapod Option, specifying the property to be purchased as provided
above, accompanied by the xxxxxxx money as set forth below, the Peapod Option on
the Offered Property shall lapse and be of no further force and effect unless
ARP fails to enter into a contract with a prospective purchaser within ninety
(90) days of Peapod's receipt of the Third Party Notice or fails to close the
sale within one year of Peapod's receipt of the Third Party Notice, in either of
which events the Peapod Option shall again be in full force and effect. The
Peapod Option shall remain in effect for any portion of the Land held by ARP
which has not been placed under contract with or sold to a third party in
accordance herewith.
In the event Peapod exercises the Peapod Option, the terms of the Contract
shall govern the rights and obligations of Peapod, as purchaser, and ARP, as
seller, with respect to the conveyance of the Land as if the Contract applied to
the Land, except that: (i) the provisions relating to the Infrastructure (as
defined in the Contract) shall not apply, (ii) there shall be a 10% xxxxxxx
money deposit requirement, which must be posted concurrently with the exercise
of the Peapod Option, (iii) there shall be no contingencies, and (iv) closing
shall occur within sixty (60) days of the exercise of the Peapod Option.
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1 Capitalized terms used in this Exhibit C and not otherwise defined in
this Exhibit C shall have the meanings given to such terms in the main
body of the Assignment to which this Exhibit C is attached and into
which this Exhibit C is incorporated.
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