EXHIBIT 10.89
ASSUMPTION AND MODIFICATION AGREEMENT
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THISASSUMPTION AND MODIFICATION AGREEMENT
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("Agreement") is made and entered into this 7th day of February. 2000, by and
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between XXXXXX X. XXXXXXX ("Xxxxxxx") and WMCK VENTURE CORPORATION, a Delaware
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corporation ("Optionee").
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RECITALS:
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1. XXXXXX X. XXXXXXX ("Optionor"), as owner in fee of that certain real
property ("Real Property") located in the County of Teller, State of Colorado,
more particularly described in Exhibit A attached hereto, and the improvements
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and fixtures thereon ("Improvements") (the Real Property and Improvements are
collectively called the "Property"), and Optionee, properly executed and
delivered that certain Option Agreement ("Option Agreement"), dated March 25,
1999, pursuant to which Optionor granted to Optionee the option to purchase the
Property upon the terms and conditions set forth in the Option Agreement.
2. Optionor and Optionee properly executed and delivered that
Memorandum of Option to Purchase ("Memorandum of Option") in respect to the
Option Agreement, which was recorded on March 31, 1999 at Reception No. 489749
of the Teller County, Colorado real estate records.
3. Optionor is now deceased. Pursuant to the terms of the
Optionor's last will and testament, Xxxxxxx shall be appointed as personal
representative of the estate of the Optionor (the "Estate") and the Property
shall be conveyed from the Estate to Xxxxxxx by personal representative's deed
("Personal Representative's deed"), subject to the Option Agreement.
4. Pursuant to the terms and conditions of this Agreement, Xxxxxxx
and Optionee have mutually agreed to (a) the assumption by Xxxxxxx of the
Optionor's obligations under the Option Agreement and (b) the modification of
the Option Agreement as provided for in this Agreement.
NOW, THEREFORE, in consideration of the execution of this Agreement, the mutual
promises contained herein1 and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Xxxxxxx agrees to proceed promptly, diligently and in good faith (a)
to accomplish her appointment as personal representative of the Estate and,
promptly after such appointment, (b) to cause letters testamentary, evidencing
Xxxxxxx'x appointment as personal representative of the Estate to be recorded in
the Teller County real estate records, (c) to execute, deliver and record in the
Teller County real estate records the Personal Representative's Deed conveying
the Property to Xxxxxxx and (d) to take such other actions as may be reasonably
necessary to accomplish such appointment and conveyance.
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Optionee agrees to proceed promptly, diligently and in good faith to
accomplish the condition under Section 4(d) below, relating to the Title
Commitment, unless waived by Optionee.
2. Effective upon the Effective Date (defined in Section 4 below), Xxxxxxx
hereby irrevocably and unconditionally assumes, covenants, promises and agrees:
(a) to perform each and every covenant, agreement and obligation in the Option
Agreement be performed by Optionor; (b) that the representations and warranties
of the Optionor are ratified as her own; and (c) to be bound by each and all of
the terms and conditions of the Option Agreement as though the Option Agreement
had originally been made, executed and delivered by Xxxxxxx, as the Optionor.
3. Effective upon the Effective Date (as defined in Section 4 below),
Xxxxxxx and Optionee agree that the Option Agreement shall be and hereby is
modified as follows:
a. Article II and Article III of the Option Agreement shall be modified and
restated in their entirety as follows:
ARTICLE II
TERM AND MANNER OF EXERCISE
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2.1 (a) The Option shall be exercisable by Optionee at any time during
the initial period commencing April 1, 1999 and terminating at 12:00 midnight
Cripple Creek time on March 31, 2000 (the "Initial Option Period") and provided
the Option is extended as set forth in Section 2.1(b) below, at any time during
the extended period commencing April 1, 2000 and terminating at 12:00 midnight
Cripple Creek time on March 31, 2004 (the "Extended Option Period"), by written
notice delivered by the Optionee to Optionor in the manner set forth in Section
19.8 hereof prior to the expiration of the Initial Option Period or Extended
Option Period, as applicable. If Optionee fails to exercise the Option on or
before the last date applicable for such exercise specified above, the Option
and this Agreement shall be null and void and of no further force or effect.
(b) The Option may be extended for the Extended Option Period by
written notice delivered by the Optionee to Optionor in the manner set forth in
Section 19.8 hereof prior to the expiration of the Initial Option Period and
payment by the Optionee to Optionor of the sum of Fifteen Thousand and No/l00
Dollars ($15,000.00) as provided for in Section 3.1(b) below.
ARTICLE III
OPTION CONSIDERATION
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3.1 (a) As consideration for the Option, during the Initial Option Period,
the Optionee shall pay to the Optionor the sum of Ten Thousand and No/100
Dollars ($10,000.00) on April 1, 1999, and One Thousand Five Hundred and No/100
Dollars ($1,500.00) per month during the Initial Option Period, commencing with
the month of April, 1999.
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(a) As consideration for the Extended Option Period, the Optionee shall pay
to the Optionor the sum of Fifteen Thousand and No/100 Dollars ($15,000.00) by
no later than March 31, 2000. As consideration for the Option, during the
Extended Option Period, the Optionee shall pay to the Optionor Two Thousand and
No/100 Dollars ($2,000.00) per month thereafter during the Extended Option
Period, commencing with the month of April, 2000. In addition, provided the
Option has not been previously exercised, the Optionee shall pay to the Optionor
the sum of Twenty-Five Thousand and No/100 Dollars ($25,000.00) on March 31,
2001.
(b) The monthly payments during the Initial Option Period and the Extended
Option Period, if applicable, shall be paid by the Optionee to the Optionor by
the tenth (10th) day of the applicable month by check. In the event a monthly
payment is not received by the Optionee by the tenth (10th) of the month, the
Optionor shall provide the Optionee with written notice of the same in the
manner set forth in Section 19.8 and provided that the Optionor receives the
applicable payment within ten (10) days of Optionee's receipt of such notice,
together with a late charge ("Late Charge") in the amount of five percent (5.0%)
of the late payment, this Option shall continue in full force and effect.
(c) Such monthly payments shall be due and payable during the Initial
Option Period or Extended Option Period through the effective date of the
Optionee's exercise of the Option, but not thereafter. In the event such
effective date is a day other than the last day of the month, the option
consideration for such month shall be prorated through the effective date of
such exercise.
3.2 In the event Optionee elects to exercise the Option, fifty percent (50%)
of all monies paid by the Optionee to Optionor under Section 3.1 above, except
Late Charges, if any, shall be credited against the Purchase Price of the
Property set forth in Section 4 below.
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b. The notice address for the Optionor, which appears in Section 19.8
of the Option Agreement is amended to read as follows:
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
With a copy to:
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Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000-0000
4. The "Effective Date" shall be the date upon which the last of the
following conditions has been satisfied: (a) Xxxxxxx shall have been duly
appointecf as personal representative of the Estate, (b) letters testamentary
shall have been issued, evidencing such appointment, and such letters shall have
been recorded in the Teller County real estate records, (c) Xxxxxxx, as personal
representative of the Estate, shall have executed and delivered the Personal
Representative's Deed conveying the Property from the Estate to Xxxxxxx and such
Personal Representative's Deed shall have been recorded in the Teller County
real estate records and (d) unless waived in writing by the Optionee, the Title
Commitment (as defined in Section 5.1 of the Option Agreement) shall have been
endorsed, at the Optionee's expense, (i) to show, in Paragraph 3 of Schedule A
of the Title Commitment, that Xxxxxxx is the owner of the Property and (ii) to
show the Option Agreement, as modified by this Agreement, as an exception in
Schedule B - Section 2 of the Title Commitment.
Xxxxxxx and Optionee agree that Sections 2 and 3 of this Agreement shall
become effective upon the occurrence of the Effective Date. Under the terms of
the modified Article III (set forth in Section 3 above) from and after March 31,
2000, Option consideration is payable by the Optionee to Xxxxxxx in amounts
which are in excess of the consideration payable under Option Agreement prior to
modification. The parties anticipate that the Effective Date will occur prior to
March 31, 2000. Nonetheless, in the event the Effective Date occurs after March
31, 2000, the parties agree that any Additional Option Consideration (as defined
below) shall be paid by the Optionee to Xxxxxxx within fifteen (15) days of the
Effective Date. "Additional Option Consideration" shall be the amount which is
equal to (a) the Option consideration payable, up to and including the Effective
Date, under the modified Article III minus (b) the Option consideration which
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has been paid, up to and including the Effective Date, by the Optionee to the
Estate under Article III of the Option Agreement without modification.
5. Promptly after the occurrence of the Effective Date (as defined in
Section 4 above), the parties agree to execute a Memorandum of Modification of
Option to Purchase, in the form and content as Exhibit B, which shall be
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recorded in the Office of the County Recorder of Teller County, Colorado.
6. This Agreement is a modification only and shall relate back to the date
of the execution and delivery of the Option Agreement and, except as provided
herein, all of the terms and conditions of the Option Agreement shall remain in
full force and effect. Xxxxxxx and Optionee ratify and confirm the
enforceability of the Option Agreement as assumed by Xxxxxxx, as if Xxxxxxx was
the original Optionor, and modified by this Agreement.
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7. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute but
one and the same agreement.
IN WITNESS WHEREOF, Xxxxxxx and Optionee have executed this Agreement on the day
and year first above written.
"OPTIONEE"
WMCK Venture Corporation, a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Its: Director
"XXXXXXX"
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 7th day of
February, 2000, by Xxxxx Xxxxxxxxxx, as Director of WMCK Venture Corporation, a
Delaware corporation.
WITNESS my hand and official seal.
[SEAL]
/s/ Xxxx Xxxx
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 7th day of
February, 2000, by Xxxxxx X. Xxxxxxx.
WITNESS my hand and official seal.
My commission expires:
/s/XXXX XXXX
NOTARY PUBLIC
[SEAL STATE OF COLORADO
EXHIBIT A
Xxx 00, Xxxxx 00, Xxxxxxxx (now Cripple Creek), Teller
County, Colorado, together with all easements, rights of way, licenses,
privileges, hereditaments and appurtenances thereto.
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