OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") made and entered into as of the 3rd
day of November, 1995, by and between RIVERSIDE JOINT VENTURE, a Missouri
general partnership ("Venture"), and XXXXXX'X MARYLAND HEIGHTS LLC, a Delaware
limited liability company ("Xxxxxx'x").
STATEMENT OF FACTS
X. Xxxxxx'x is the owner of certain land (the "Xxxxxx'x Property"),
located in the City of Maryland Heights, St. Louis County, Missouri, the same
being more particularly described in Exhibit A attached to this Agreement and
made a part hereof.
B. The Venture is the owner of certain land (the "Venture Property")
lying adjacent to the Xxxxxx'x Property and located in the City of Maryland
Heights, St. Louis County, Missouri, the same being more particularly described
in Exhibit B attached to this Agreement and made a part hereof.
C. The Venture has heretofore entered into a certain Ground Lease with
Xxxxxx'x dated as of November 3, 1995 (the "Ground Lease") pursuant to which the
Venture has leased the Xxxxxx'x Property from Xxxxxx'x, a Memorandum of which
was recorded on November ____, 1995, as Daily No. ______ of the Office of the
Recorder of Deeds for St. Louis County, Missouri.
X. Xxxxxx'x and the Venture have also entered into as of the date
hereof a Reciprocal Easement Agreement (the "Reciprocal Easement Agreement")
which was recorded on November ____, 1995 as Daily No. ________ of the Office of
the Recorder of Deeds for St. Louis County, Missouri granting easement rights
over the Xxxxxx'x Property to the Venture and over the Venture Property to
Xxxxxx'x.
E. The Venture has agreed to xxxxx Xxxxxx'x an option to purchase the
Venture Property upon the expiration or termination of the Ground Lease for its
Fair Market Value (as defined below).
AGREEMENT
In consideration of the mutual covenants contained in this Agreement,
the parties hereto agree as follows:
1. Option to Purchase. The Venture hereby grants Xxxxxx'x an exclusive
option to purchase the Venture Property (the "Option") from the Venture, on the
terms and subject to the conditions set forth in this Agreement.
2. Consideration; Term. The Venture grants this option to Xxxxxx'x in
exchange for Ten Dollars ($10.00) and other good and valuable consideration
(including without limitation the execution and delivery of the Ground Lease and
Reciprocal Easement
Agreement), receipt of which is hereby acknowledged. Subject to the terms and
conditions set forth herein, the term of this Agreement shall commence on the
date hereof and shall terminate sixty (60) days after the expiration or
termination of the Ground Lease (the "Expiration Date").
3. Exercise of Option. So long as Xxxxxx'x is not in default under the
terms of this Agreement and the term of this Agreement has not expired, Xxxxxx'x
shall have the right upon the expiration or termination of the Ground Lease (the
"Ground Lease Expiration") to exercise the Option. In order to effectively
exercise the Option, Xxxxxx'x shall simultaneously give the Venture written
notice of Xxxxxx'x intent to exercise the option.
The Option must be exercised, if at all, after the Ground Lease
Expiration but prior to the Expiration Date, and if not so exercised this
Agreement shall automatically expire and terminate. The date upon which Xxxxxx'x
exercises the Option by notice to the Venture is hereinafter called the
"Exercise Date".
4. Purchase Price. The Purchase Price for the Property (the "Purchase
Price") shall be equal to its Fair Market Value (as defined below). "Fair Market
Value" as used above shall be determined pursuant to an MAI (or comparable) real
estate appraisal as follows: Xxxxxx'x and the Venture shall within twenty (20)
days following the Exercise Date agree upon a qualified real estate appraiser to
determine the Fair Market Value of the Venture Property. If Xxxxxx'x and the
Venture are unable to agree upon a single real estate appraiser to determine
Fair Market Value within such initial twenty (20) day period, then Xxxxxx'x and
the Venture shall within forty (40) days after the Exercise Date each select a
qualified real estate appraiser. The two (2) appraisers selected by Xxxxxx'x and
the Venture shall select a third qualified appraiser within ten (10) days
following their appointment, and the three (3) appraisers shall independently
determine the Fair Market Value of the Venture Property and Fair Market Value as
used herein shall be one-third of the aggregate sum of the Fair Market Values
determined by such appraisers unless the appraisal of one of such appraisers
differs by more than ten percent (10%) from the average amount of the other two
(2) in which case it will be disregarded and such average amount of the other
two (2) appraisals shall be Fair Market Value. The real estate appraiser(s)
shall promptly after appointment render a written report to the parties, in
customary form which specifies the basis for his (or their) determination. If
either party fails to select a real estate appraiser, as provided above, the
real estate appraiser selected by the other party shall determine Fair Market
Value. If a single real estate appraiser determines Fair Market Value, as
provided above, the parties shall share equally the fee and out-of-pocket
expenses of such real estate appraiser. If three (3) real estate appraisers
determine Fair Market Value, as provided above, then each party shall be
responsible for all fees and expenses of the real estate appraiser selected by
it, and the parties shall share equally the fee and expenses of the third
appraiser selected by the other appraisers.
5. Closing. Xxxxxx'x shall purchase the Property "AS IS" and no
representations or warranties as to the condition or nature of the Property are
made or implied by the Venture under this Agreement. Any monetary encumbrances
on the Property shall be removed on or before Closing. Closing pursuant to this
Agreement (the "Closing" or "Closing Date") shall be on a date selected by
Xxxxxx'x, which date shall be a business day which is not sooner than thirty
(30) days nor later than sixty (60) days after the Exercise Date at 10:00 a.m.,
St. Louis
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time, or on such earlier date or at such different time as the parties shall
mutually agree in writing, in the offices of the Xxxxxx'x counsel.
6. Closing Terms and Procedures. The Venture shall prepare or cause to
be prepared a closing statement to be delivered to Xxxxxx'x before Closing
reflecting all adjustments, prorations and credits to the Purchase Price made
pursuant to this Agreement. At Closing, the Venture shall deliver a special
warranty deed conveying the Venture Property to Xxxxxx'x free and clear of all
encumbrances other than those non-monetary encumbrances noted in the title
report received at the time of the Venture's acquisition of the Venture
Property, if any, and encumbrances thereafter created or approved by Xxxxxx'x or
any affiliate of the Venture. At Closing, Xxxxxx'x shall deliver the Purchase
Price, as adjusted, in the form of cash or by wire transfer, and both parties
shall, at Closing, deliver all other documents as shall be reasonably required
to fully consummate the transactions described herein.
7. Adjustments, Prorations, Credits and Payments. The following
adjustments, prorations and credits to the Purchase Price shall be computed and
made as of the Closing and shall be reflected on the closing statement:
(a) Real estate taxes and assessments and Levee District taxes and
assessments for the then current year and rents and other customary items shall
be prorated between the parties. Whenever this Agreement provides that charges
or credits shall be prorated as of Closing, the Venture shall be charged or
credited, as the case may be, with the day of Closing.
(b) Xxxxxx'x shall pay all costs of title searches for the Venture
Property and the title insurance premium and all other costs and fees related to
the issuance of a policy of title insurance covering the Venture Property, the
issuance of which in a form satisfactory to Xxxxxx'x shall be a condition to
Xxxxxx'x obligation to close hereunder.
(c) The Venture shall furnish Xxxxxx'x with a copy of the Venture's
existing survey of the Property. In the event Xxxxxx'x shall order and obtain an
additional survey, Xxxxxx'x shall do so at its sole cost and expense.
(d) Except as expressly provided herein, each party shall pay its
own attorneys' fees and expenses and all other costs and expenses incurred by it
in connection with this Agreement and the transactions described herein.
9. Xxxxxx'x Default. If Xxxxxx'x shall fail to complete the purchase as
provided by this Agreement by reason of any default of Xxxxxx'x under the terms
of this Agreement, and shall fail to cure such default within thirty (30) days
after written notice of such default from the Venture, the Venture shall be
released from the Venture's obligation to sell the Venture Property to Xxxxxx'x
and from any other obligation pursuant to this Agreement.
10. Venture's Default. In the event of default by the Venture in
performance of its obligations hereunder, Xxxxxx'x shall, at Xxxxxx'x option, be
entitled to all rights and remedies at law or in equity.
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11. Assignment. Xxxxxx'x shall not, without the prior written consent
of the Venture (which consent shall not unreasonably be withheld), sell, assign
or transfer, whether by operation of law, merger, acquisition or otherwise, all
or any of its rights under this Agreement, except or in connection with a
Permitted Transfer of the Project Property as provided in the Partnership
Agreement of the Venture.
12. Successors and Assigns. Subject to the restriction on assignment
set forth above, this Agreement shall be binding upon, inure to the benefit of
and be enforceable by the respective parties and their successors and assigns in
accordance with the terms of this Agreement.
13. Notices. All notices required or permitted to be given pursuant to
this Agreement shall be effective only if in writing given as provided in this
Section. Notices shall be deemed given and received upon deposit in the United
States mail, as registered or certified mail, postage prepaid, return receipt
requested, or when delivered personally addressed as follows:
If to Venture:
Riverside Joint Venture
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
with a copy to:
Players MH, L.P.
c/o Players International, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
If to Xxxxxx'x:
Xxxxxx'x Maryland Heights LLC
c/x Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
or to such other address as the party to receive such notice shall theretofore
have furnished to the other party by notice given in accordance with this
Section.
14. Entire Agreement. This Agreement is the entire agreement between
the parties with respect to the subject matter hereof and sets forth all the
terms, covenants, agreements, conditions, undertakings, representations and
warranties of the parties and supersedes all prior understandings, inducements,
promises, warranties and representations, express or implied,
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oral or written, and may be amended only by written agreement, signed by both
parties to this Agreement.
15. Headings. Section headings are for convenience only and shall not
be construed to affect the meaning or scope of any provision of this Agreement.
16. Applicable Law. This Agreement shall be governed, and the rights
and liabilities of the parties determined, by the laws of the State of Missouri.
17. Severability. All terms and provisions of this Agreement and all
other documents executed in connection herewith and therewith are severable, and
any term or provision or the application thereof to any person or situation
which may be prohibited or unenforceable by law shall be ineffective to the
extent of such prohibition or unenforceability without affecting the remainder
of such document, any other application of such term or provision or any other
document.
18. Memorandum of Option. Upon the execution hereof, Xxxxxx'x and the
Venture shall execute and Xxxxxx'x shall record in the St. Louis County,
Missouri records, at its sole cost and expense, a Memorandum of Option Agreement
in the form attached hereto as Exhibit C.
19. Subordination. Xxxxxx'x agrees to subordinate its rights under this
Agreement to the lien of any institutional lender which secures its loan with a
mortgage or deed of trust on the Venture Property consented to by Xxxxxx'x or
any affiliate of Xxxxxx'x.
20. Rule Against Perpetuities. If the rule against perpetuities or any
rule of law with respect to restrictions on the alienation of property or any
other rule of law shall limit the time when any event contemplated by this
Option may occur, the happening of such event shall not be impaired within any
period permitted by such rule. Such period with respect to the rule against
perpetuities shall expire upon the expiration of twenty (20) years after the
death of the last survivor of the following individuals:
Xxxxx Xxxxxxxxx of Memphis, Tennessee
Xxxxx Xxxxxxxx of Memphis, Tennessee
Dylan Buffalo of Germantown, Tennessee
The intent of this provision is to allow to the maximum extent
permissible by an applicable rule of law the occurrence of any event
contemplated by this Option.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
RIVERSIDE JOINT VENTURE, a Missouri general
partnership
BY: PLAYERS MH, L.P., its General Partner
BY: PLAYERS MARYLAND HEIGHTS,
INC., its sole general partner
(SEAL)
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Secretary
BY: XXXXXX'X MARYLAND HEIGHTS
CORPORATION, its General Partner
(SEAL)
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Authorized Representative
XXXXXX'X MARYLAND HEIGHTS LLC
BY: XXXXXX'X MARYLAND HEIGHTS
OPERATING COMPANY, its Managing Member
(SEAL)
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Authorized Representative
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EXHIBIT A
("Xxxxxx'x Property")
The following real estate is located in the County of St. Louis, State
of Missouri:
Lot 1 of Riverside Center, a subdivision, according to subdivision plat
recorded in Plat Book 339, Pages 94 through 97 in the Office of the Recorder of
Deeds for St. Louis County, Missouri, as said Lot 1 of Riverside Center has been
adjusted pursuant to boundary adjustment plat recorded in Plat Book ____, Page
____ in the Office of the Recorder of Deeds for St. Louis County, Missouri.
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EXHIBIT B
("Venture Property")
The following real estate located in the County of St. Louis, State of
Missouri:
Xxxx 0, 0 xxx 0 xx Xxxxxxxxx Center, a subdivision, according to
subdivision plat recorded in Plat Book 339, Pages 94 through 97 in the Office of
the Recorder of Deeds for St. Louis County, Missouri.
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EXHIBIT C
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION AGREEMENT, executed as of this ______ day of
November, 1995, by RIVERSIDE JOINT VENTURE, a Missouri general partnership
("Venture") and XXXXXX'X MARYLAND HEIGHTS LLC, a Delaware limited liability
Company ("Xxxxxx'x").
Pursuant to a certain Option Agreement between the Venture and Xxxxxx'x
dated as of the ______ day of November, 1995 (the "Option Agreement"), Venture
has granted and does hereby grant to Xxxxxx'x an option to purchase the real
property described on Schedule A hereto and incorporated herein (the "Property")
for the price and upon such further terms and conditions as are therein
provided. The option term commences on the date hereof and terminates sixty (60)
days after the date of the expiration or termination of that certain Ground
Lease between the Venture and Xxxxxx'x of even date, a memorandum of which has
been recorded with the Recorder of Deeds of St. Louis County, Missouri on
November _____, 1995 as Daily No. _____________, unless earlier terminated as
provided in the Option Agreement.
IN WITNESS WHEREOF, the parties have executed this Notice of Option
Agreement as of the day and year first above written.
RIVERSIDE JOINT VENTURE, a Missouri general
partnership
BY: PLAYERS MH, L.P., its General Partner
BY: PLAYERS MARYLAND HEIGHTS,
INC., its sole general partner
(SEAL)
By:
----------------------------------
Xxxxxx X. Xxxxxxx, Secretary
BY: XXXXXX'X MARYLAND HEIGHTS
CORPORATION, its General Partner
(SEAL)
By:
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Authorized Representative
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XXXXXX'X MARYLAND HEIGHTS LLC
BY: XXXXXX'X MARYLAND HEIGHTS
OPERATING COMPANY, its Managing Member
(SEAL)
By:
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
Authorized Representative
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this _______ day of November, 1995, before me appeared XXXXXX X.
XXXXXXX to me personally known, who, being by me duly sworn, did say that he is
the Secretary of PLAYERS MARYLAND HEIGHTS, INC., a Missouri corporation which is
the general partner of PLAYERS MH, L.P., a Missouri limited partnership, which
in turn is a general partner of RIVERSIDE JOINT VENTURE, a Missouri general
partnership, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation for said limited partnership as a general
partner of said general partnership, by authority of its Board of Directors and
said XXXXXX X. XXXXXXX acknowledged said instrument to be the free act and deed
of said corporation, said limited partnership and said general partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
________________________________
Notary Public
My commission expires:
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STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this _______ day of November, 1995, before me appeared XXXXXXX X.
XXXXXXXXX, to me personally known, who, being by me duly sworn, did say that he
is the Authorized Representative of XXXXXX'X MARYLAND HEIGHTS CORPORATION, a
corporation of the State of Nevada, a general partner of RIVERSIDE JOINT
VENTURE, a Missouri general partnership, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation as a general
partner of said partnership, by authority of its Board of Directors and said
XXXXXXX X. XXXXXXXXX acknowledged said instrument to be the free act and deed of
said corporation and said general partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
________________________________
Notary Public
My commission expires:
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this _____ day of November, 1995, before me appeared XXXXXXX X.
XXXXXXXXX to me personally known, who, being by me duly sworn, did say that he
is the Authorized Representative of XXXXXX'X MARYLAND HEIGHTS OPERATING COMPANY,
a Nevada corporation which is the Managing Member of XXXXXX'X MARYLAND HEIGHTS
LLC, a Delaware limited liability company, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation acting as the
Managing Member of said limited liability company, and said XXXXXXX X. XXXXXXXXX
acknowledged said instrument to be the free act and deed of said limited
liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
________________________________
Notary Public
My commission expires:
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Schedule A
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