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EXHIBIT 10.2
OPTION AGREEMENT
THIS OPTION AGREEMENT is made this 5th day of August, 1999 ("the
AGREEMENT"). Jack Rosenzweig and Helene Rosenzweig, his wife, (collectively,
the "OPTIONOR"), hereby agree to grant to Humboldt Industries Incorporated (the
"OPTIONEE"), a Pennsylvania corporation, or its assignee or nominee (the
"OPTION"), to purchase all that certain ground, together with the improvements
erected on it, situate in the Humboldt Industrial Park, Hazle Township, Luzerne
County, Pennsylvania, more particularly described in Exhibit "A" attached
hereto and made a part hereof (the "PREMISES").
BACK-GROUND:
A. Contemporaneously herewith, the Optionor has entered into a Lease
Agreement with Optionee for the Premises (hereinafter, the "LEASE"), in
accordance with the provisions of an Agreement of Purchase and Sale of Stock
dated the 10th day of June, 1999, between Optionor, Optionee, Maplewood
Industries, Inc., PetQuarters, Inc. and PQ Acquisition Company, Inc.
(hereinafter, the "AGREEMENT OF PURCHASE").
B. The Agreement of Purchase provides in Section 4.14.1(xxi) that the
Optionee has the right to lease the real estate from the Optionor for a period
of five (5) years (hereinafter, the "LEASE TERM").
C. The Purchase Agreement provides in 4.14.1(xx) that the Optionor, or
its assignee, shall have the option to purchase the Premises. It is the purpose
of this instrument to provide that option.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound, the parties agree as
follows:
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1. Optionor hereby grants Optionee, or its assignee or nominee, an
option to purchase the Premises on the terms set forth in this Agreement. The
purchase price for the Premises shall be Two Million Five Hundred Thousand
($2,500,000.00), payable in immediately available funds at closing.
2. Settlement shall take place within five (5) years of the date
hereof. This option will expire at midnight on June 9, 2005. The time of the
payments and of the settlement is of the essence of this Agreement. The
exercise of the option and the settlement thereon is conditioned on the
Optionee being in full compliance with all of the terms and conditions of the
Lease.
3. At closing, the Lease shall be automatically terminated.
4. The Premises shall be conveyed by special warranty Deed free of all
liens and encumbrances, except easements, rights, rights of way (recorded or
unrecorded), and matters which an accurate survey would disclose. This
conveyance is also subject to existing restrictions of record and/or physically
noticeable easements, governmental regulations regarding sale, leasing or
possession, possible street improvements, if any, and provisions of zoning
ordinances and/or any act or ordinance affecting the use of and improvements to
the Premises (the "EXCEPTIONS"), provided such Exceptions do not affect the
Optionee's intended use of the Premises.
5. Optionor shall deliver good and marketable title, clear of all
monetary and other liens, and such as will be insured at regular rates by any
responsible title insurance company; otherwise, the Optionor shall be in
default of this Agreement. Optionee shall be entitled to specific performance
of Optionor's covenants in this Agreement respecting title.
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6. The Option shall be exercised by the Optionee giving notice, in
writing, to both the Optionor and their counsel by certified mail, no less than
thirty (30) days prior to the scheduled closing time and date of Optionee's
selection. The closing shall take place at the law offices of Laputka, Bayless,
Ecker & Cohn, P.C., 2 East Broad Street, 6th Floor, Hazleton, Pennsylvania
18201.
7. The parties shall share equally the applicable Realty Transfer
Taxes. Inasmuch as Optionee is obligated to pay all real estate taxes under the
provisions of this Lease, there will be no apportionment of these taxes.
Optionee may, at its own cost, procure a Level I Environmental Audit. If
required by the title insurance company insuring the Optionee, Optionor shall
provide a survey map as prepared by a surveyor licensed in the Commonwealth of
Pennsylvania.
8. In addition to the other representations and warranties set forth
in this Agreement, Optionor makes the following additional representations and
warranties to Optionee, which shall also be conditions of closing: (a) except
for the Lease, there are no leases in existence for the Premises; (b) Optionor
is not in bankruptcy, nor has there been any petition or insolvency proceedings
filed for the reorganization of Optionor; (c) there are no rights, options or
other agreements of any kind to sell or transfer any interest in the Premises;
(d) the representations and warranties stated in this paragraph, and in other
paragraphs of this Agreement, shall be true as of the date hereof and as of
settlement, and shall survive settlement under this Agreement.
9. The Agreement contains the entire understanding between the parties
as to the Option and there are no other terms, obligations, covenants,
representations, statements or conditions, or otherwise of any kind, concerning
the subject matter. All
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amendments and modifications to this Option Agreement must be in writing and
signed all of the parties.
10. It is understood and agreed that with respect to all dates set
forth in this Agreement, time is of the essence.
11. Either party may assign its rights and obligations hereunder.
12. This instrument shall be binding upon the heirs, successors and
assigns of the parties.
13. Optionee shall have the right to record a Memorandum of this
Option Agreement in the Office of the Recorder of Deeds in and for Luzerne
County, Pennsylvania, in a form reasonably acceptable to counsel for both
parties.
14. Notice under this Agreement shall be deemed received on the date
sent and shall be sent to the following addresses:
If to the Optionor:
Jack Rosenzweig and Helene Rosenzweig
Humboldt Industrial Park
One Maplewood Drive
Hazleton, PA 18201
If to Optionee:
Humboldt Industries Incorporated
Humboldt Industrial Park
One Maplewood Drive
Hazleton, PA 18201
With a copy to:
Laputka, Bayless, Ecker & Cohn, P.C.
2 East Broad Street, 6th Floor
Hazleton, PA 18201
Attn: Martin D. Cohn, Esquire or Robert S. Sensky, Esquire
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If to PetQuarters, Inc.:
PetQuarters, Inc.
P.O. Box 410
Lonoke, AR 72086
Attn: Steve Dempsey
With a copy to:
Wright, Lindsey, Jennings, LLP
200 West Capitol Avenue, Suite 2200
Little Rock, AR 72201
Attn: C. Tad Bohannon, Esquire
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed on the date first written above by their respective officers thereunto
duly authorized.
OPTIONOR:
WITNESS: JACK ROSENZWEIG
- ------------------------------- -----------------------------
(Signature)
WITNESS: HELENE ROSENZWEIG
- ------------------------------- -----------------------------
(Signature)
ATTEST: HUMBOLDT INDUSTRIES
INCORPORATED
By:
--------------------------
Title:
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COMMONWEALTH OF PENNSYLVANIA :
ss.
COUNTY OF LUZERNE :
On this the ____ day of August, 1999, before me, a Notary Public, the
undersigned officer, personally appeared Jack Rosenzweig and Helene Rosenzweig,
his wife, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that they executed the
same for the purposes therein contained.
WITNESS hand and seal the day and year aforesaid.
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Notary Public
STATE OF ARKANSAS :
ss.
COUNTY OF PULASKI :
On this the ____ day of August, 1999, before me, a Notary Public, the
undersigned officer, personally appeared who acknowledged himself/herself to
the of Humboldt Industries Incorporated, and that he/she 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/herself as such
officer.
WITNESS hand and seal the day and year aforesaid.
--------------------------
Notary Public
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed on the date first written above by their respective officers thereunto
duly authorized.
OPTIONOR:
WITNESS: JACK ROSENZWEIG
- ------------------------------- -----------------------------
(Signature)
WITNESS: HELENE ROSENZWEIG
- ------------------------------- -----------------------------
(Signature)
ATTEST: HUMBOLDT INDUSTRIES
INCORPORATED
- ------------------------------- By:
--------------------------
Title:
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COMMONWEALTH OF PENNSYLVANIA :
ss.
COUNTY OF LUZERNE :
On this the ____ day of August, 1999, before me, a Notary Public, the
undersigned officer, personally appeared Jack Rosenzweig and Helene Rosenzweig,
his wife, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that they executed the
same for the purposes therein contained.
WITNESS hand and seal the day and year aforesaid.
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Notary Public
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STATE OF ARKANSAS :
ss.
COUNTY OF PULASKI :
On this the ____ day of August, 1999, before me, a Notary Public, the
undersigned officer, personally appeared __________________________________ who
acknowledged himself/herself to the ____________________ of Humboldt Industries
Incorporated, and that he/she 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/herself as such officer.
WITNESS hand and seal the day and year aforesaid.
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Notary Public
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION
ALL that certain parcel of land as shown on Ebeco Associates, Inc.
drawing number Three thousand two hundred ten (3210), known as Site Six (6),
situate in the park known as Humboldt Industrial Park, Township of Hazle,
County of Luzerne, Commonwealth of Pennsylvania bounded and described as
follows to wit:
BEGINNING at a point on the westerly line of a Eighty (80.00) foot
wide right of way known as Maplewood Drive, said point being further described
as the northeast corner of Site Seven (7);
THENCE along the northerly line of said site South Seventy-two degrees
One minute and No seconds West (S 72-01-00 W) for a distance of One thousand
sixty-four and eighteen hundredths (1064.18) feet to a point on the easterly
line of a Sixty (60.00) foot wide Railroad and Utility corridor right of way;
THENCE along the easterly line of said right of way North Eighteen
degrees Seven minutes and No seconds West (N 18-07-00 W) for a distance of
Three hundred three and sixty-seven hundredths (303.67) feet to a point; said
point being on the southerly line of lands nor or formerly Can-Do. Inc.;
THENCE along the southerly line of said lands North Seventy-two
degrees Three minutes and No seconds East (N 72-03-00 E) for a distance of One
hundred (100.00) feet to a point;
THENCE continuing along said lands North Eighteen degrees Seven
minutes and No seconds West (N 18-07-00 W) for a distance of One (100.00) feet
to a point on the southerly line of a Twenty-five (25.00) foot wide Utility
Corridor;
THENCE along the southerly line of said right of way North Seventy-two
degrees Three minutes and No seconds East (N 72-03-00 E) for a distance of One
thousand forty-six and twenty-eight hundredths (1046.28) feet to a point on the
westerly line of a Eighty (80.00) foot wide right of way known as Maplewood
Drive;
THENCE along the westerly line of said right of way South Six degrees
Twenty-seven minutes and No seconds East (S 06-27-00 E) for a distance of Three
hundred fifty-five and forty-eight hundredths (355.48) feet to a point;
THENCE continuing along said right of way on a curve to the left,
having a radius of One thousand four hundred seventy-four and eighty-nine
hundredths (1474.89) feet, an arc length of Fifty-five and sixty-two hundredths
(55-62) feet to a point and the PLACE OF BEGINNING.