Exhibit 10.11
AGREEMENT FOR THE PURCHASE AND
SALE OF COMMERCIAL REAL ESTATE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF COMMERCIAL REAL ESTATE
("Agreement") is entered into as of January 27, 1998 ("Effective Date") between
Xxxxxx Xxxxxx, Ltd., a Colorado limited partnership ("Seller") and Grease Monkey
International, Inc., a Colorado corporation ("Purchaser"), upon the basis of the
following facts:
RECITALS
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Seller is developer of the commercial retail shopping center commonly known
as the "The Crossing at Xxxxxx Park Center", located in Colorado Springs, El
Paso County, Colorado. A portion of the Center has been subdivided into five
lots. Purchaser desires to purchase from Seller one of the subdivided lots, as
identified below. Purchaser proposes to use the Property (as hereinafter
defined) for a motor vehicle oil change and lubrication facility ("Purchaser's
Intended Use").
Subject to the terms of this Agreement, Seller has agreed to sell the
"Property", as hereinafter described, to Purchaser.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, the parties hereby agree as follows:
SECTION 1. SALE OF PROPERTY. Subject to the terms and conditions provided
in this Agreement, Seller agrees to sell and Purchaser agrees to purchase all of
Seller's right, title and interest in and to the real property described in
Exhibit A and incorporated herein by reference the "Property").
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the property is $258,026.00 (the "Purchase Price"), adjusted as
provided in Section 3.2(c). Purchaser will pay the purchase price in the
following manner:
2.1 Xxxxxxx Money Deposit. Purchaser has deposited the sum of $10,000.00
with Lawyers Title Insurance Company, 000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 (the "Title Company") as xxxxxxx money and as a deposit
towards payment of the Purchase Price (together with any additions to such
deposit, herein the "Xxxxxxx Money Deposit"). The Xxxxxxx Money Deposit shall be
credited against the Purchase Price at Closing (as defined below). The Xxxxxxx
Money Deposit shall earn interest, and any interest accrual shall belong to the
party entitled to the Xxxxxxx Money Deposit in accordance with this Agreement.
2.2 Funds at Closing. At Closing, Purchaser shall pay to Seller the balance
of the Purchase Price, which balance shall be paid in immediately available good
funds.
SECTION 3. TITLE MATTERS.
3.1 Permitted Exceptions. Seller shall transfer and convey its right, title
and interest in the Property to Purchaser, subject only to such matters as
Purchaser may waive or consent to pursuant to Section 3.3 (the "Permitted
Exceptions").
3.2 Title Documents. On or before February 25, 1998, Seller shall deliver
to Purchaser at Seller's expense the following title evidence covering the
Property (collectively, the "Title Documents"):
(a) Title Commitment. A title insurance commitment (the "Title
Commitment") issued by the Title Company showing the status of record title to
the Property, together with copies of all recorded documents referred to in the
Title Commitment. The Title Commitment must commit to insure title to the
Property in Purchaser in the full amount of the Purchase Price, subject only to
the Permitted Exceptions. The Title Commitment shall further commit to delete
the standard printed exceptions. Seller shall, at its expense and promptly after
Closing, cause the owner's policy of title insurance to be issued to Purchaser
pursuant to the Title Commitment.
(b) Tax Certificate. A certificate of taxes due covering the Property
prepared by the Treasurer of El Paso County, Colorado.
(c) Survey. A land survey plat (as defined in Section 00-00-000,
Colorado Revised Statutes) of the Property, prepared by a licensed Colorado
surveyor, which shall comply with ALTA 1992 Standards for an Urban Class survey
(the "Survey"). The Survey shall contain a legal description of the Property and
shall show the bearing and distances of all boundary lines of the Property, all
improvements to the Property, all easements and other title matters encumbering
or appurtenant to the Property, any encroachments onto or off of the Property,
the Federal flood zone designation and any other matters that would be disclosed
by an accurate survey of the Property, including the square footage of the
Property. The Survey shall also contain the certification of the surveyor
sufficient for deletion of the standard survey exception from the Title
Commitment. If the square footage of the Property as determined by the Survey is
different than 30,356 square feet, then the Purchase Price shall be increased or
decreased at the rate of $8.50 per square foot for every square foot by which
the area of the Property exceeds or is less than 30,356 square feet.
3.3 Defects of Title. Purchaser shall have the right to object to any
defect of title which appears in the Title Documents and which renders title to
the Property unmerchantable or which makes the Property unsuitable for
Purchaser's Intended Use (a "defect of title"). Any objection to a defect of
title must be in writing and must be received by Seller no later than the
expiration of the Inspection Period (as defined in Section 4.2). Purchaser's
failure to provide Seller with written notice of an objection to any title
matter appearing in the Title Documents within the Inspection Period shall be
deemed to be a waiver by Purchaser of any objection it might otherwise have; and
all such title matters shall become additional "Permitted Exceptions."
Notwithstanding the foregoing, if a defect of title is not revealed in the Title
Documents and is discovered by Purchaser after the close of the Inspection
Period, Purchaser shall have until five (5) days after the date of its discovery
of the defect of title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the defect of title, provided, however,
that Purchaser shall be deemed to have approved and accepted any matters that
are shown on the Plat as described in Section 10.6. If Seller receives timely
written notice from Purchaser of a defect of title, Seller shall have the right,
in its sole discretion, to (a) correct or cure the defect of title, (b) obtain
title insurance over the defect of title through title policy endorsement or
otherwise, or (c) notify Purchaser that Seller does not intend to cure or insure
over the defect of title. If Seller is unable or unwilling to cure or insure
over a defect of title, Purchaser shall have the right to either (a) terminate
this Agreement and its obligations hereunder, or (b) waive its objection to the
defect of title. If Purchaser elects to terminate this Agreement, the Title
Company shall return the Xxxxxxx Money Deposit to Purchaser and neither party
shall have any further obligation hereunder. If Purchaser elects to waive its
objection to the defect of title, the title matter objected to shall thereafter
be considered a "Permitted Exception." A defect of title, regardless of its
disposition under this Section, shall not result in a reduction of the Purchase
Price.
SECTION 4. INSPECTION OF PROPERTY.
4.1 Inspection Items. Seller has, prior to the Effective Date, delivered to
Purchaser an environmental assessment, dated December 12, 1996, and prepared by
E-Quest Corporation (the "Environmental Audit"), together with copies of all
other studies or reports in Seller's possession with respect to soils,
engineering and environmental matters.
4.2 Inspection Period. Purchaser shall have from the Effective Date through
April 27, 1998 (the "Inspection Period"), in which to determine whether or not
the Property is suitable for Purchaser's Intended Use, which determination shall
be in Purchaser's sole discretion. At anytime during the Inspection Period,
Purchaser shall have the right to terminate this Agreement and all of its
obligations hereunder by providing written notice to Seller of its election to
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terminate. Upon receipt of such a notice of termination by Seller, this
Agreement shall be automatically terminated without further action by either
party. Upon termination, the Title Company shall immediately return the Xxxxxxx
Money Deposit to Purchaser.
4.3 Access to Property. During the Inspection Period, Purchaser and its
agents and representatives shall have access to the Property to conduct a
physical inspection and to conduct such testing, including core drilling and
soils reports, as Purchaser deems appropriate. Until the Closing, Purchaser
shall not materially alter the existing condition of the Property. Purchaser
hereby indemnifies and holds Seller harmless from any and all losses, costs or
expenses (including lien and personal injury claims, settlement and reasonable
attorneys' fees) which arise from such entry and work, and which may be asserted
against either Seller or the Property.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
5.1 Seller's Representations and Warranties. As of the Effective Date and
as of the date of Closing, Seller hereby represents and warrants to Purchaser
that:
(a) Seller is the owner and has full right, power and authority to
sell, convey and transfer the Property to Buyer as provided in this Agreement
and to carry out Seller's obligations under this Agreement. This Agreement and
all documents executed by Seller that are to be delivered prior to or at Closing
have been duly authorized and have been (or, when executed and delivered will
be) duly executed and delivered by Seller and (or, when executed and delivered
will be) legal, valid and binding obligations of Seller.
(b) The execution, delivery, and performance of this Agreement, and
the consummation of the transaction contemplated hereby, will not result in any
breach of or constitute any default under or result in the imposition of any
lien or encumbrance against any part of the Property under any agreement or
other instrument to which Seller is a party or by which Seller of any part of
the Property might be bound.
(c) Seller is aware of the provisions of the Deficit Reduction Act of
1984, 26 U.S.C. Section 1445, et seq., and the Internal Revenue Service
regulations implementing said Act referring to the withholding tax on the
disposition of United States real property interests by foreign persons and
foreign corporations, and Seller is not a foreign person or corporation as
defined by said Act and regulations.
(d) In the event any claim is made by any party for the payment of
sums due for the furnishing of labor, materials, equipment or fuel to Seller or
to the Property at the request of Seller prior to Closing, or in the event any
lien is filed against the Property subsequent to Closing as a result of the
furnishing of such materials, labor, equipment or fuel at the request of Seller,
Seller shall immediately cause said lien to be released of record or otherwise
satisfy Buyer, to Buyer's reasonable satisfaction, that such lien will be
immediately released.
5.2 Purchaser's Representations and Warranties. As of the Effective Date
and as of the date of Closing, Purchaser hereby represents and warrants to
Seller that:
(a) Neither the entering into of this Agreement nor the consummation
or the transaction contemplated hereby will constitute a violation or breach by
Purchaser of any contract or other instrument to which Purchaser is a party, or
to which it is subject or by which any of its assets or properties may be
affected, or of any judgment, order, writ, injunction or decree issued against
or imposed upon it, or will result in a violation of any applicable law, order,
rule or regulation of any governmental authority affecting Purchaser.
(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
Purchaser's ability to enter into or consummate this Agreement.
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SECTION 6. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
6.1 As Is. Except as specifically set forth in Sections 5, 10 and 16
of this Agreement:
(a) Purchaser acknowledges and agrees that Seller has not made, does
not make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (i) the value, nature, quality
or condition of the Property, including, without limitation, the water, soil and
geology; (ii) the income to be derived from the Property; (iii) the suitability
of the Property for any and all activities and uses which Purchaser may conduct
thereon; or, (iv) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property; and Seller
specifically disclaims any representations regarding compliance with any
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of asbestos or any hazardous substance, as
defined by the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and regulations promulgated thereunder.
(b) Purchaser further acknowledges and agrees that having been given
the opportunity to inspect the Property, Purchaser is relying solely on its own
investigation of the Property and not on any information provided or to be
provided by Seller or Broker other than information referred to in this
Agreement.
(c) Purchaser further acknowledges and agrees that any information
provided or to be provided by or on behalf of Seller with respect to the
Property was obtained from a variety of sources and that Seller has not made any
independent investigation or verification of such information and makes no
representations as to the accuracy or completeness of such information.
(d) Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person.
(e) Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults.
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that all of the Property is sold by Seller and purchased
by Purchaser subject to the foregoing.
6.2 Radon. The Colorado Department of Health and the United States
Environmental Protection Agency ("EPA") have detected elevated levels of
naturally occurring radon in structures in the Colorado Springs area. EPA has
raised concerns with respect to adverse effects on human health of long-term
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property. Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or implied, concerning the presence or absence of radon
in the Property, the suitability of the Property for development or the design
or construction techniques, if any, that can be employed to reduce any radon
levels in improvements built on the Property; and Purchaser, for itself and its
successors and assigns, releases Seller from any liability whatsoever with
respect to the foregoing matters.
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SECTION 7. CONDITIONS PRECEDENT TO PURCHASE AND SALE.
7.1 Conditions Precedent to Purchaser's Obligations. The following matters
shall constitute absolute conditions precedent to Purchasers obligations to
purchase the Property:
(a) Sellers representations and warranties set forth in Section 5.1 of
this Agreement shall be true and correct as of the closing date.
In the event that the conditions set forth above are not met or satisfied
on or before Closing, then Purchaser may either obtain a refund of the Xxxxxxx
Money Deposit, following which neither party shall thereafter have any further
liability to the other hereunder, or Purchaser may waive in writing the
nonfulfillment of any portion of these conditions and purchase the Property
pursuant to the terms and provisions hereof without any reduction in the
Purchase Price.
7.2 Condition Precedent to Seller's Obligation. The following matters shall
constitute absolute conditions precedent to Sellers obligations to sell the
Property:
(a) Purchasers representations and warranties set forth in Section 5.2
of this Agreement shall be true and correct as of the closing date.
In the event the condition set forth above is not met or satisfied on or
before Closing, then Seller may terminate this Agreement by giving written
notice of termination to Purchaser in which event the Xxxxxxx Money Deposit
shall be refunded to Purchaser following which neither party shall thereafter
have any further liability to the other hereunder, or Seller may waive in
writing the nonfulfillment of the condition and sell the Property to the
Purchaser pursuant to the terms and provisions hereof.
SECTION 8. CLOSING.
8.1 Closing Date. The closing of the purchase and sale of the Property (the
"Closing") shall occur on June 11, 1998. The Closing shall occur at the offices
of the Title Company.
8.2 Purchaser's Obligations at Closing. In addition to delivery of the
balance of the Purchase Price as described in Section 2.2., Purchaser shall
execute and deliver the following to Seller at Closing:
(a) Such affidavits, instruments or agreements that may be required by
the Title Company in its issuance of the policy of title insurance pursuant to
the Title Commitment.
(b) A statement which reflects the settlements and prorations provided
for in Section 9.
(c) Such other documents that may be necessary to carry out the
purposes of this Agreement.
8.3 Seller's Obligations at Closing. Seller shall execute and deliver the
following to Purchaser at Closing:
(a) A Special Warranty Deed conveying the Property to Purchaser,
subject only to the Permitted Exceptions.
(b) A FIRPTA Affidavit.
(c) Such affidavits, instruments or agreements that may be required by
the Title Company in its issuance of the policy of title insurance pursuant to
the Title Commitment.
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(d) A statement which reflects the settlements and prorations provided
for in Section 9.
(e) Such other documents that may be necessary to carry out the
purposes of this Agreement.
SECTION 9. SETTLEMENT AND PRORATIONS. The following items shall be prorated
or settled between Purchaser and Seller at Closing:
9.1 Taxes and Assessments. Prior to Closing, Seller shall pay the amount of
any unpaid real and personal property taxes allocable to the Property for tax
years prior to the year of Closing and any special assessments for improvements
installed prior to Closing. If Seller fails to pay the entire amount of such
taxes and assessments by Closing, Seller shall be debited on its settlement
sheets with the unpaid amount of such taxes and assessments and any resulting
penalties. Real property taxes and assessments for the Property for the year of
Closing, payable in the following calendar year, shall be apportioned between
Seller and Purchaser as of the date of Closing. Such apportionment shall be
computed on the basis of the most recent assessed valuation and mill levy
information, and shall be final.
9.2 Miscellaneous Closing Costs. Seller shall pay the costs associated with
providing Purchaser with the title insurance policy described in Section 3.2.
All real estate recording and documentary fees payable in connection with the
purchase and sale of the Property shall be paid by Purchaser. Any fee for
closing services which is charged by the Title Company shall be shared equally
by Seller and Purchaser. Except as otherwise expressly provided in this
Agreement, Purchaser and Seller shall pay their own fees and expenses incurred
in the preparation, execution and performance of their respective obligations
under this Agreement.
SECTION 10. APPROVALS, PLANNING, PLATTING AND DEVELOPMENT.
10.1 Reserved.
10.2 Reserved.
10.3 Reserved.
10.4 Reserved.
10.5 Purchaser's Development Plan and Building Plans. Purchaser
acknowledges that the City will require a development plan or development plans
("Purchaser's Development Plan") for the Property to be approved in accordance
with applicable zoning laws and City subdivision ordinances prior to the
issuance of any building permit for construction of improvements on the
Property. In addition, Purchaser acknowledges that in accordance with the
provisions of the CC&R's (as hereinafter defined Section 11.1) Seller has
certain approval rights, including the right to approve development plans prior
to their submission to the City, and the right to approve the plans for any
proposed building or improvement before construction is started. Before
submitting any Purchasers Development Plan for the Property to the City,
Purchaser shall submit Purchaser's Development Plan to Seller for approval in
accordance with
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the CC&R's. Purchaser shall not permit any development plan to become final and
binding on the Property or Seller until after Closing. Purchaser shall be
solely responsible for obtaining the City's approval of Purchasers Development
Plan, and Seller will cooperate with Purchasers efforts to obtain the City's
approval of Purchasers Development Plan as approved by Seller.
10.6 Reserved.
10.7 Seller's Plat Responsibilities. Contingent upon Closing, Seller shall
be responsible for all improvements, fees and agreements with the City
concerning either installation of improvements or provisions for public
facilities that were required pursuant to the City's approval of the subdivision
plat (the "Plat") affecting the Property. Purchaser shall be responsible for all
fees and charges payable in connection with building permits or otherwise
payable with respect to the property, except for the specific obligations of
Seller identified in this Agreement.
10.8 Utility Service. Seller shall be responsible for extending water,
natural gas, electric and sewer utility lines from their current locations to
the Property boundary, for repairing streets damaged by such extensions.
Purchaser shall be responsible for extending such utility services to the
improvements it constructs on the Property and for paying all tap, line
extension and other City imposed charges and fees in connection with the
extension of such utility services to the improvements. Purchaser acknowledges
that the City installs all electric lines and that Purchaser will be solely
responsible for making arrangements with the City's Department of Utilities to
extend electric lines and to provide electrical service to meet the particular
needs of the improvements to be constructed on the Property. Purchaser will also
be responsible for obtaining telephone and cable television lines and service
for the Property. Purchaser acknowledges that the Plat will have to provide for
utility easements as required by the City.
10.9 Streets. Access to the Property is provided via public and private
streets shown on the Plat. Purchaser shall be solely responsible for
constructing all driveways within the boundaries of the Property and all curbs
and sidewalks on or adjacent to the Property required by governmental
authorities.
10.10 Drainage. Seller shall be responsible for installing, or causing to
be installed, all drainage facilities required by the City outside of the
Property that relate to development on the Property. Purchaser will be solely
responsible for providing all drainage facilities required within the boundaries
of the Property in accordance with the Purchasers Development Plan and any
applicable drainage plans approved by the city.
10.11 Park and Drainage Fees. Seller will hold Purchaser harmless from all
requirements and obligations to the City for park fees and drainage fees with
respect to the Property.
10.12 Reserved.
10.13 Cooperation. The Seller and Purchaser shall cooperate with one
another in a reasonable manner to the end that the Closing occurs as
contemplated by this Agreement. All approvals required to be obtained by either
party pursuant to this Agreement shall be sought in a reasonable manner and
acted upon diligently and expeditiously. Whenever the provisions of this
Agreement require one party to obtain the other party's approval, such approval
shall not be unreasonably withheld or delayed. Each party shall use its good
faith efforts to satisfy all the conditions to its performance of this
Agreement.
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SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. There is recorded, at Reception No. 097066132 of the
records of El Paso County Colorado, a Declaration of Covenants, Conditions and
Restrictions for The Crossing at Xxxxxx Park Center ("the CC&R's"). Purchaser
acknowledges receipt of a copy of the CC&R's.
11.2 Other Development. Purchaser acknowledges that Seller has made no
representations or warranties to Purchaser concerning the development of any
other property adjacent to or in the vicinity of the Property on which Purchaser
has relied.
SECTION 12. Reserved.
SECTION 13. NAME AND LOGO. Except for directional and location
identification purposes, neither the name "The Crossing at Xxxxxx Park Center,"
any derivatives thereof, nor the logos associated with such name may be used in
any way in connection with the Property or any promotion of it, unless Seller
has given its prior written approval to such use.
SECTION 14. CONDEMNATION. If, between the Effective Date and Closing, any
portion of the Property is taken in condemnation, Purchaser shall have the
option to terminate this Agreement and its obligations hereunder. The option to
terminate contained in this Section must be exercised by written notice to
Seller no later than ten (10) business days after Purchaser is notified by
Seller or others of the condemnation, if Purchaser exercises its option to
terminate in accordance with this Section, the Title Company shall return the
Xxxxxxx Money Deposit to Purchaser and neither party shall have any further
obligation hereunder. If Purchaser does not exercise its option to terminate as
provided in this Section, the Agreement shall continue in full force and effect.
In such event, the Purchase Price shall be paid by Purchaser at Closing without
reduction, but Seller shall remit to Purchaser all awards received by Seller as
a result of the condemnation.
SECTION 15. DEFAULT AND REMEDIES. In the event of default by either party
under this Agreement, Purchaser and Seller agree as follows:
15.1 Default by Purchaser. If Purchaser shall default in the performance of
its obligations hereunder, Seller's sole and only remedy shall be to terminate
this Agreement and to retain the Xxxxxxx Money Deposit as liquidated damages.
15.2 Default by Seller. If Seller shall default in the performance of its
obligations hereunder, Purchaser shall have the right to either (a) terminate
this Agreement and to obtain the return of the Xxxxxxx Money Deposit, or (b)
enforce this Agreement through an action for specific performance. Purchaser
hereby waives its right to recover damages from Seller, including without
limitation any loss of profits, consequential damages, punitive damages or any
other damages or losses suffered by Purchaser in connection with this Agreement.
SECTION 16. BROKERS. Seller represents and warrants to Purchaser that,
other than Highland Commercial Group, LLC, ("Seller's Broker"), no broker or
finder has been engaged by Seller in connection with any of the transactions
contemplated by this Agreement. Seller further represents and warrants that no
person or entity, other than Broker, now claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Seller because of such transactions. Seller agrees to pay
Broker a commission equal to ten percent (10%) of the Purchase Price, which
commission shall not be earned or payable until the occurrence of the Closing
and Seller's receipt of the Purchase Price. In the event of a termination of
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this Agreement, Broker shall have no right to share in the Xxxxxxx Money Deposit
if retained by Seller. Purchaser represents and warrants to Seller that other
than Xxxxxxxx Xxxxxx Commercial Properties, Inc. ("Purchaser's Broker"), no
broker or finder has been engaged by Purchaser in connection with any of the
transactions contemplated by this Agreement. Purchaser further represents that
no person or entity, other than Broker, claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Purchaser because of such transactions. Each party agrees to
hold the other party harmless from and against any and all costs, expenses,
claims, losses or damages, including reasonable attorneys' fees, resulting from
any breach of the representations and warranties contained in this Section.
SECTION 17. ASSIGNMENT. Buyer shall have the right, in its sole discretion,
to assign its rights hereunder; provided, however that Buyer shall remain
obligated hereunder notwithstanding any such assignment.
SECTION 18. MISCELLANEOUS.
18.1 Notices. All notices required or permitted under this Agreement shall
be given by nationally recognized overnight courier, for "next day" delivery,
with all delivery costs paid, or by hand delivery, directed as follows:
If intended for Seller, to:
Xxxxxx Powers, Ltd.
c/x Xxxxxx Capital Corporation
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Phone: (000) 000-0000
If intended for Purchaser, to:
Grease Monkey International, Inc.
16th Street, Suite 1100
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Xxxxx
with a copy in each case to:
Xxxxx XxXxxxx Xxxxxx & Xxxxx, Ilc
Plaza of the Rockies, Suite 202
111 South Tejon
Xxxxxxxx Xxxxxxx, Xx 00000
Attn: R. Xxx XxXxxxx
Any notice delivered by overnight carrier in accordance with this paragraph
shall be deemed to have been duly given when delivered. Any notice which is hand
delivered shall be effective upon receipt by the party to whom it is addressed.
Either party, by notice given as above, may change the address to which future
notices should be sent.
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18.2 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and permitted assigns.
18.3 Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement between Seller and Purchaser, and may
not be modified in any manner except by an instrument in writing signed by both
parties.
18.4 Headings. The section and subsection headings contained in this
Agreement are inserted only for convenient reference and do not define, limit or
proscribe the scope of this Agreement or any exhibit attached hereto.
18.5 Counterparts. This Agreement may be executed in any number of
counterparts which together shall constitute one and the same instrument.
18.6 Unenforceable Provisions. If any provision of this Agreement, or the
application thereof to any person or situation shall be held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to persons or situations other than those to which it shall have been
held invalid of, unenforceable, shall continue to be valid and enforceable to
the fullest extent permitted by law.
18.7 Time of the Essence. Time is strictly of the essence with respect to
each and every term, condition, obligation and provision of this Agreement, and
the failure to timely perform any of the terms, conditions, obligations or
provisions hereunder by either party shall constitute a breach of and a default
under this Agreement by the party so failing to perform. In calculating any
period of time provided for in this Agreement, the number of days allowed shall
refer to calendar and not business days. If any day scheduled for performance of
any obligation hereunder shall occur on a weekend or holiday, the time period
allowed and day for performance shall be continued to the next business day.
18.8 Waivers. No waiver by either party of any provision hereof shall be
effective unless in writing or shall be deemed to be a waiver of any other
provision hereof or of any subsequent breach by either party of the same or any
other provision.
18.9 Attorneys' Fees and Costs. In the event of litigation between Seller
and Purchaser arising out of the enforcement of or a default under this
Agreement, the prevailing party shall be entitled to judgment for court costs
and reasonable attorneys' fees in an amount to be determined by the court.
18.10 Governing Law; Construction of Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
Seller and Purchaser and their respective counsel have reviewed, revised and
approved this Agreement. Accordingly, the normal rule of construction that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
18.11 Duration of Offer. Purchaser has executed and submitted this
Agreement to Seller as an offer for acceptance by Seller to be evidenced by
Seller's execution of this Agreement. Purchaser's offer as represented by this
Agreement shall continue in effect only until February 6, 1998. If Purchaser has
not received a copy of this Agreement executed by Seller on or before that date,
Purchaser's offer and this Agreement shall immediately terminate and shall no
longer be of any force or effect.
10
This Agreement for the Purchase and Sale of Commercial Real Estate has been
executed as of the date first written above.
SELLER:
Xxxxxx Xxxxxx., Ltd.
By: Xxxxxx Capital Corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Its: President
------------------------
PURCHASER:
Grease Monkey international, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Its: Vice President Development
---------------------------
11
AGREEMENT OF BROKER
The undersigned, as Broker hereunder, acknowledges and agrees that Section 16
of the foregoing Agreement correctly sets forth the understanding and agreement
between Broker, Seller and Purchaser relating to the payment of a commission
resulting from the sale of the Property.
BROKER:
Highland Commercial Group, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Its: Listing Agent
--------------------------
Xxxxxxxx Xxxxxx Commmercial Properties, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Its: Broker
--------------------------
12
EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Legal Description of Property
Xxx 0 xx Xxx Xxxxxxxx xx Xxxxxx Xxxx, in the City of Colorado Springs, El Paso
County, Colorado
