Exhibit 10.1
OPTION AGREEMENT
This Option Agreement (the "Agreement"), is entered into as of this __ day
of September, 1997, by and between Realm Corporation, an Ohio corporation
("Realm") and Xxxxxx Xxxxx, individually ("Xxxxx"), collectively as one party,
(Xxxxx and Realm are collectively referred to from time to time as "Seller") and
Mountaineer Park, Inc., a West Virginia corporation ("Buyer"), as the other
party.
RECITALS
A. Seller currently is: (i) through Realm the owner of that certain
approximate 270 acres of real property ("Parcel A") located in the
Xxxxxxx County, West Virginia more fully described in Exhibit A, attached
hereto and incorporated herein; and (ii) through Xxxxx a party to that
certain Real Estate Sales Contract dated September 25, 1997 by an between
Brohha Land, Co, as seller and Xxxxx, as purchaser, a copy of which is
attached hereto and incorporated herein as Exhibit C (the "Contract")
pursuant to which Xxxxx is to purchase approximately 79 acres ("Parcel
B") of real property contiguous to Parcel A, as more full described in
Exhibit B attached hereto and incorporated herein [Parcel A and Parcel B
shall be collectively referred to as the "Real Property"].
B. Seller desires to sell, and Buyer desires to purchase the Real Property
currently owned by and subject to Xxxxx'x rights under the Contract.
Therefore, in consideration of the granting of the options for the payments
set out below, and for other good and valuable consideration, the receipt,
sufficiency and incontestability of which are acknowledged, the parties agree as
follows:
1. RECITALS INCORPORATED. The foregoing Recitals are incorporated into
this Agreement as if fully set out herein.
2. OPTION TO PURCHASE. In consideration of the sum of One Hundred
Thousand Dollars ($100,000.00) [the "Option Payment"] and other good and
valuable consideration, the Seller hereby grants to the Buyer an irrevocable
option to purchase all of the Real Property. This option to purchase shall
expire on its own terms at 12:00 midnight (Chester, West Xxxxxxxx time) on
September 30, 1998.
3. TERMS OF PURCHASE. The Purchase Price of the Real Property is
$600,000.00. The Purchase Price shall be payable as follows: (i) payment by
Buyer of $200,000.00 all cash or immediately available funds at settlement on
the sale of the Real Property; and (ii) execution of a "take back" promissory
note by Buyer in a form to be agreed to by the parties
in the amount of $400,000.00 payable over five (5) years in equal monthly
installments of principal and interest at the rate of 9% per annum.
4. SURVEY AND TESTING. Buyer shall have the right, subject to
reasonable advance notice to Seller, to enter upon the Real Property to
conduct a survey or such other testing as Buyer, in its sole and absolute
discretion, deems reasonable. In the event the survey indicates available
acreage in an amount less than 350 acres or in the event Xxxxx fails to
acquire Parcel B, the Purchase Price shall be reduced proportionately.
5. EXERCISE. The Buyer shall exercise this option by giving at least
30 days notice in writing setting the date, time and place for settlement.
Settlement shall in no event take place later than September 30, 1998.
6. TITLE. A. At settlement, the Seller's title to the Real Property
shall be conveyed by general warranty deed and shall be good, insurable at
standard rates and merchantable, free and clear of all liens and encumbrances
except: (i) covenants, restrictions and easements and rights of way of record
which do not materially impact the value or use of the Real Property; and
(ii) the existing leasehold interest in Parcel A previously disclosed to
Buyer.
B. In the event that any lien or encumbrance is discovered prior
to settlement which has not been mentioned above, or in the event a title
defect is discovered prior to settlement, the Buyer may either: (i) purchase
the Real Property or part thereof as above provided subject to such liens or
encumbrances or title defects; or (ii) elect not to purchase the Real
Property by giving ten (10) days written notice to the Seller, and neither
party shall have any further liability to the other.
7. PRESERVATION OF REAL PROPERTY. The Seller covenants and agrees to
refrain for the duration of this Agreement from doing any act which would
tend to damage this option, the value of the Real Property or would impair
the Buyer from acquiring the Real Property. No further consideration shall
be necessary to keep this option in full force and effect during its
duration. Seller shall not sell, gift, transfer or otherwise convey in any
manner all or any part of the Real Property to anyone other than Buyer so
long as this option is in effect.
8. ASSIGNMENT. This option may be assigned by the Buyer without the
consent of the Seller; provided, however, that concurrently with such
assignment, the Buyer notifies the Seller of such assignment, the names and
addresses of the assignees, and furnishes the Seller with a copy of such
assignment.
9. REPRESENTATIONS AND WARRANTIES. To induce Buyer to enter into this
Agreement and make the payments specified herein, Seller represents and warrants
to Buyer, their successors and assigns, as follows:
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A. Realm is a corporation duly organized and in good standing
under the laws of the State of Ohio and is qualified to do business in West
Virginia.
B. Realm is the sole owner of Parcel A, and Xxxxx is the sole
party entitled to purchase Parcel B. No other person or entity holds any
interest, legal or beneficial, in the Real Property.
C. Seller is authorized and able to sell the Real Property without
the further consent of any person or entity. And, the granting of this
option and sale of the Real Property does not violate any contract,
agreement, loan agreement or Court order to which Seller is a party.
D. To the best of Seller's knowledge, information and belief: (i)
no "hazardous substances" or "toxic substances" as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9061 ET SEQ.; Hazardous Materials
Transportation Act, 49 U.S.C. Section 1802; and Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 ET SEQ. and any other substances
considered hazardous, toxic or the equivalent pursuant to any other
applicable laws and in the regulations adopted and publications promulgated
pursuant to said laws or any other present or future federal, state, county
or local laws or regulations concerning environmental protection, including,
without limitation, any material or substance which is (a) defined or listed
as a "hazardous waste," "extremely hazardous waste," "restricted hazardous
waste," "hazardous material," "pollutant" or "contaminant" under any law, (b)
petroleum or a petroleum derivative, (c) a flammable explosive, (d) a
radioactive material, (e) a polychlorinated biphenyl, or (f) asbestos or an
asbestos derivative ("Hazardous Materials") are located on or in the Real
Property (including the surface, soil or subsurface of the Real Property);
and (ii) Seller has not used the Real Property for the storage, manufacture,
repair or disposal of Hazardous Materials, or machinery containing such
Hazardous Materials.
E. Seller shall use the Option Payment solely for the purpose of
purchasing Parcel B and shall immediately thereafter provide Buyer a copy of
the deed evidencing Seller's fee simple ownership of Parcel B.
F. Seller shall convey the Real Property free and clear of all
liens, encumbrances, interests and claims of any kind.
G. The representations and warranties set out in this Section 9
shall be true and correct both as of the date of this Agreement and as of the
date of sale and transfer of Real Property from Seller to Buyer.
H. The provisions of this Section 9 shall survive any termination of
this option or the closing on the sale of the Real Property.
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NOTICES AND DELIVERIES.
NOTICES. All notices or other communications required or
permitted under this Agreement shall be in writing and be delivered by: i)
certified United States mail, return receipt requested; ii) recognized overnight
courier (e.g. Federal Express; Express Mail, etc.); or iii) hand delivery,
addressed as follows:
To Seller:
Realm Corporation
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Attn: Xxx Xxxxx
To Buyer:
Mountaineer Park, Inc.
Xxxxx 0, X.X. Xxx 000
Xxxxxxx, Xxxx Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxx
Notices properly addressed shall be deemed given: x) three (3) business days
after being deposited in the U.S. mail, postage prepaid; y) one (1) business day
after being delivered to an overnight courier; and z) upon delivery by hand.
B. CHANGES. Any party may change the person(s) to whom, or the
place to which, notices, payments or certificates shall be sent by giving
written notice of the change to the other party consistent with Section 10(A).
11. THE CONTRACT. In the event Seller fails to purchase Parcel B with the
proceeds of the Option Payment, Buyer in its sole and absolute discretion, shall
have the right either to: (a) rescind this Agreement and demand an immediate
return of the Option Payment to Buyer; or (b) elect to proceed with this
Agreement and purchase Parcel A at the Purchase Price, as adjusted pursuant to
Section 4, above, whereupon the term "Real Property" shall be deemed to include
only Parcel A.
12. MISCELLANEOUS.
A. GOVERNING LAW. This agreement shall be construed in accordance
with the laws of the State of West Virginia.
B. BINDING EFFECT. This Agreement shall be binding upon, and
inure to the benefit of, Seller, Buyer and their respective heirs, personal
representatives, successors and permitted assigns. Any amendment or
modification of this Agreement must be in writing and signed both by Buyer
and by Seller.
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C. REMEDIES CUMULATIVE. Any remedy specified in this Agreement is
in addition to, not in lieu of, any other rights or remedies available to either
party at law or in equity. All rights or remedies are cumulative and may from
time to time be exercised separately or together.
13. ENTIRE AGREEMENT. This agreement and the attached exhibits constitute
the entire agreement between the parties. No representations, warranties or
promises pertaining to the option or the land affected by this option have been
made or shall be binding on any of the parties except as expressly stated in
this agreement. This agreement may not be changed orally but only by an
instrument in writing signed by all the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement, under seal, as
of the date first set forth above.
WITNESS: SELLER:
REALM CORPORATION
--------------------------- -----------------------------------[SEAL]
By:
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Its:
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--------------------------- -----------------------------------[SEAL]
Xxxxxx Xxxxx
WITNESS: BUYER:
MOUNTAINEER PARK, INC.
--------------------------- By -------------------------------[SEAL]
Xxxxx X. Xxxxxxxx, President
This Instrument was prepared by Xxxxx X. Xxxxxxx, Esquire, Freer, McGarry,
Bodansky & Xxxxx, P.C., 0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000.
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STATE OF )
COUNTY OF ) SS:
ON THIS, the _____ day of _____________ 1997, before me, the undersigned
officer, personally appeared Xxxxx X. Xxxxxxxx who acknowledged himself to be
the President of Mountaineer Park, Inc., a West Virginia corporation, and that
he, as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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STATE OF )
COUNTY OF ) SS:
ON THIS, the ____ day of _____________ 1997, before me, the undersigned
officer, personally appeared ________________________________ who acknowledged
himself to be the _______________________ of Realm Corporation and that he, as
such officer, being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the corporation by himself
as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
----------------------------
Notary Public
My Commission Expires:
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STATE OF )
COUNTY OF ) SS:
ON THIS, the _____ day of _____________ 1997, before me, the undersigned
personally appeared Xxxxxx Xxxxx and, being first duly sworn according to law,
deposed and acknowledged that he executed the foregoing as his free and
voluntary act for the purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
----------------------------
Notary Public
My Commission Expires:
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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