Exhibit 10.12
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 March 20, 1998 ("Effective Date") between
Xxxxxx Xxxxxx, Ltd., a Colorado limited partnership ("Seller") and PCRO Limited
Liability Company, a Colorado limited liability company ("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, and legally described on Exhibit A attached hereto and
incorporated herein by reference. A portion of the Center has been subdivided
into five lots ("Phase I"). Purchaser desires to purchase from Seller an
unplatted portion of the Center, together with a portion of an adjacent piece of
real property owned by Seller, but not currently included in the Center.
Attached hereto as Exhibit B is a map showing the approximate configuration and
location of the Property (as hereinafter defined). Purchaser proposes to use the
Property (as hereinafter defined) for a Tire World sales facility ("Purchasers
Intended Use"), and intends to develop the Property approximately as shown on
the preliminary development plan (the "Preliminary Plan") attached hereto as
Exhibit C.
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
Sellers right, title and interest in and to the real property approximately as
depicted in Exhibit B and incorporated herein by reference (the "Property"). The
legal description of the Property shall be included in the Survey described in
Section 3.2(c). Prior to Closing, the Property will be platted in accordance
with Section 10, and will be conveyed to Purchaser by platted legal description.
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $300,000.00 (the "Purchase Price"). The Purchase
Price will be paid by Purchaser in the following manner:
2.1 Xxxxxxx Money Deposit. Purchaser has deposited the sum of $5,000.00
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 at the highest available rate, 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
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Purchaser may waive or consent to pursuant to Section 3.3, the Amended CC&R's
referred to in Section 11 hereinafter, and the matters shown on the Plat
referred to in Section 10.6 (the "Permitted Exceptions").
3.2 Title Documents. On or before March 27, 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, the location of all dedicated public
rights-of-way adjacent 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, and shall be certified to Purchaser and Purchasers lender.
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
Purchasers 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). Purchasers
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
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E-Quest Corporation (the "Environmental Audit"), together with copies of all
other studies or reports in Sellers possession with respect to soils,
engineering and environmental matters.
4.2 Inspection Period. Purchaser shall have from the Effective Date through
April 26, 1998, (the "Inspection Period"), in which to determine whether or not
the Property is suitable for Purchasers 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
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 are (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 or 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.
(e) Except as disclosed in the Environmental Audit, to the best of
Seller's actual knowledge, without investigation, as of the date of this
Contract and as of the date of Closing, the Property (including land, surface
water, ground water and improvements) is now and will then be free of all
contamination, including (i) any "hazardous waste", "underground storage tanks",
"petroleum", "regulated substance", or "used oil" as defined by the Resource
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Conservation and Recovery Act of 1976 (42 U.S.C. ss. 9601, et seq.) as amended,
or by any regulations promulgated thereunder, (ii) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. ss. 9601, et seq.) as amended, or by any regulations
promulgated thereunder (including, but not limited to, asbestos and radon);
(iii) any "oil, petroleum products, and their byproducts", as defined by C.R.S.
1973 ss. 00-00-000 et seq., as amended, or by any regulations promulgated
thereunder; (iv) any "hazardous waste" as defined by the Colorado Waste Act,
C.R.S. 1973 ss. 00-00-000, et seq., or by any regulations promulgated
thereunder; (v) any substance the presence of which on, in or under the Property
is prohibited by any law similar to those set forth above; and (vi) any other
substance which by law, regulation or ordinance requires special handling in its
collection, storage, treatment or disposal. For purposes of this subsection 5.1
(e), "to the best of Seller's knowledge" shall mean to the best of the knowledge
of Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxx, who are the President and Secretary,
respectively, of Xxxxxx Capital Corporation, the general partner of Seller.
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 Purchasers
ability to enter into or consummate this Agreement.
SECTION 6. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
6.1 As Is. Except as specifically set forth in Sections 5,10, 11 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.
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(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 longterm
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.
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 Purchaser's obligations to
purchase the Property:
(a) Seller's representations and warranties set forth in Section 5.1
of this Agreement shall be true and correct as of the closing date.
(b) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(c) Purchaser has received the approval from the City of Colorado
Springs ("City") of Purchasers Development Plan.
(d) The Plat referenced in Section 10.6 has been recorded.
(e) Seller has provided Purchaser with a copy of the Letter of Credit
referenced in Section 10.3.
Purchaser shall act with due diligence in completing the conditions of this
Agreement. In the event that the conditions set forth above are not met or
satisfied on or before Closing, through no fault of Purchaser, 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 Seller's obligations to sell the
Property:
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(a) Purchasers representations and warranties set forth in Section 5.2
of this Agreement shall be true and correct as of the closing date.
(b) Seller has determined that the Development Budget referenced in
Section 10.1 does not reflect a total cost that exceeds $600,000.00.
(c) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(d) The Plat referenced in Section 10.6 has been recorded.
Seller shall act with due diligence in completing the conditions of this
Agreement. In the event the conditions set forth above is not met or satisfied
on or before Closing, through no fault of Seller, 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 either:
(a) Ten (10) business days following notice to Purchaser from Seller
that the City has approved Purchasers Development Plan, the Concept Plan and the
Plat (the "City Approvals"), provided, the Closing can occur in accordance with
the foregoing notice not later than June 1, 1998, and provided further that the
Plat has been recorded by Closing, or,
(b) On December 1, 1998, or at such earlier date as the parties may
agree.
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., $200,000.00 of which
shall be deposited into escrow pursuant to the provisions of the Escrow
Agreement described in Section 10.2 hereinafter, 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) The Escrow Agreement.
(d) 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.
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(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.
(d) A statement which reflects the settlements and prorations provided
for In Section 9.
(e) The Escrow Agreement.
(f) 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 falls 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 Seller's Development Obligations - Generally. The Seller shall be
responsible for subdividing and platting the Property and for the Off Site and
On Site Development Work (as hereinafter defined). Prior to the Effective Date,
Seller has furnished Purchaser with a development budget (the "Development
Budget") for all On and Off Site Development Work necessary or required in
connection with the subdivision and platting of the Property (including both
"hard" and "soft" costs). The Development Budget was prepared using the most
accurate information available to Seller at the time of its preparation. In the
event that unforeseen events occur (such as, for example, City imposed
development obligations not currently anticipated in Seller's current
Development Budget) prior to Closing that cause the total amount of the
Development Budget to increase above $600,000.00, Seller may, at its option, so
notify Purchaser, and may elect to by such notice to terminate this Agreement
and all of its obligations hereunder. Upon receipt of such a notice of
termination by Purchaser, 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.
10.2 Timing of Seller's Development Obligations. On or before March
20,1998, Seller shall complete and submit to the City for its approval the
Concept Plan and the Plat (as hereinafter defined) of the Property. Seller shall
use its reasonable efforts to obtain the City's approval of the Concept Plan and
the Plat. It is anticipated that none of the Development Work will be completed
by Closing. As a consequence, and to assure the Purchaser that the On Site
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Development Work will be completed in a timely manner following the Closing, the
parties have agreed that at Closing, and out of the net proceeds payable to
Seller, Seller will place $200,000 in an escrow, the terms of which will be
substantially as set forth in the Escrow Agreement ("Escrow Agreement") attached
hereto as Exhibit D. The date to be inserted in Paragraph 3 of Exhibit D, shall
be four (4) months after the date of Closing if the Closing occurs on or prior
to June 1, 1998, otherwise, five (5) months after the date of Closing.
10.3 Off Site Development Work. For purposes of this Agreement, "Off Site
Development Work" shall mean all of the off site development work required to be
completed by the City as a condition of the City's approval of the Concept Plan
and the Plat, which the parties anticipate shall include construction of
drainage improvements in Sand Creek. In accordance with the City's procedures,
the parties acknowledge that the City, as a condition of the approval of the
Concept Plan and the Plat, will require Seller agree to complete the Off Site
Development Work, and to post with the City a letter of credit ("Letter of
Credit") to assure the City of the completion of the Off Site Development Work.
10.4 On Site Development Work. For purposes of this Agreement, "On Site
Development Work" shall mean all of the on site development work required to be
completed by the City as a condition of the City's approval of the Concept Plan
and the Plat, and the following:
(a) Rough grading of the Property in accordance with the City approved
grading plan (the "Grading Plan").
(b) Construction of private road access to Property per Concept Plan.
(c) Stubbing all utilities to the Property pursuant to City Utility
Department specifications.
10.5 Purchaser's Development Plan. Purchaser acknowledges that the City
will require a development plan or development plans ("Purchasers 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. On or before March 20, 1998,
Purchaser shall complete and submit to the City for its approval, Purchasers
Development Plan for the Property. Purchaser acknowledges that in accordance
with the provisions of the Amended CC&R's (as hereinafter defined), Seller will
have certain approval rights, including the right to approve development plans
prior to their submission to the City. 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 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 and any conditional use request which have been
approved by Seller.
10.6 Concept Plan and Platting. Purchaser acknowledges that the Property
must be platted and that governmental authorities will require a concept plan
("Concept Plan"), showing the proposed development on the Property, and a plat
("Plat") of the Property, to be approved in accordance with applicable zoning
laws and City subdivision ordinances. The Concept Plan must be approved by the
City, and the Plat recorded, prior to the issuance of any building permit for
construction of improvements on the Property. Purchaser acknowledges that the
Plat will have to provide for landscaping, utility and drainage easements as
required by the City. Seller shall be responsible for obtaining the City's
approval of the Concept Plan and Plat.
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10.7 Seller's Plat Responsibilities. Contingent upon Closing, Seller shall
be responsible for all improvements, fees and agreements with the City
concerning improvements or provisions for public facilities that are required
pursuant to approval and recording of 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 south boundary of the Property, for repairing streets damaged by such
extensions. The size or capacity of the utility lines extended to the Property
boundary shall not be less than the following:
Utility Size or Capacity
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Water Main eight inch (8")
Electrical Service 800 amps
Sanitary Sewer four inch (4")
Natural Gas one inch (1")
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 will be provided via public and
private streets. Seller shall be responsible for providing access to the
Property from the private roads in Phase I of the Center (the "Street
Easement"),* as shown on the map attached hereto as Exhibit F. Seller reserves
the right to relocate the Street Easement, provided the relocation does not
materially adversely affect the reasonable and practical access to the Property.
Further, Seller agrees that, within a period of one year following the first to
occur of (i) the sale to a third party not affiliated with Seller of any
property owned by Seller and lying between Phase I and the Property (the
"Development Property", as shown on the map attached hereto as Exhibit E), or
(ii) the platting of any of the Development Property; Seller will cause to be
constructed and installed, the private road shown on the map attached hereto as
Exhibit E. 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 Purchaser's Development Plan, the Plat
and any applicable drainage plans approved by the City. Purchaser acknowledges
the Plat will have to provide for drainage easements as required 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 that are required to be paid in conjunction with the
filing and approval of the Plat under ordinances in effect at the time of this
Agreement.
*The Street Easement shall be paved and constructed within the time period set
out in paragraph 10.2 for On Site Development Work.
9
10.12 Purchaser's Approval Rights. Seller shall, at its expense, prepare
and deliver to Purchaser, by the date indicated, the following:
(a) The Grading Plan, by May 1, 1998;
(b) The proposed Concept Plan, by March 20, 1998
(c) The proposed Plat, by March 20, 1998;
(d) The Visibility Easement (as defined in Section 12), by May 1,
1998;
(e) The Access Easement (as defined in Section 12), by May 1, 1998;
(f) The Amended CC&R's (as defined in Section 11. 1, by May 1, 1998.
Purchaser shall have fourteen (14) days after it receives any of the foregoing
to approve or disapprove the same by giving written notice to Seller, and if it
disapproves (a "Disapproval"), stating specifically the reasons therefor. In the
event Purchaser does not give such notice within the time period allowed, it
shall conclusively be deemed to have given its approval. If Seller receives
timely written notice from Purchaser of a Disapproval, Seller shall have the
right, in its sole discretion, to (a) correct or cure the Disapproval, or (b)
notify Purchaser that Seller does not intend to cure the Disapproval. If Seller
is unable or unwilling to cure the Disapproval, Purchaser shall have the right
to either (a) terminate this Agreement and its obligations hereunder, or (b)
waive its Disapproval. 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 Disapproval, the matter objected to shall thereafter be considered approved.
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.
10.14 Center Signs. Seller will seek City approval for the construction of
a sign (in addition to the sign located at the Southern end of the Center) to be
located at the northern end of the Center (the "Center Sign-North"), which
identifies the Center and provides for additional signage for property owners
within the Center. In the event Seller is able to obtain the City's approval,
Seller shall erect the Center Sign-North, and Purchaser shall be entitled to 20%
of the total signage available on the Center Sign-North for identification of
the business operated from the Property. Purchaser shall be responsible for
reimbursing Seller for its pro-rata portion of the cost of purchasing and
erecting the Center Sign-North, and for Purchaser's pro-rata portion of the
continuing costs of lighting, maintenance and repair. For purposes of the
preceding sentence, "pro-rata portion" means the square footage of Purchasers
signage on the Center Sign-North compared to the square footage of all signage
available on said sign for owners or tenants of property within the Center.
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"). On or before
10
the date set forth in Section 10.12, Seller shall deliver to Purchaser at
Seller's expense, an amendment (the "CC&R Amendment") to the CC&R's which Seller
intends to place on the Property. Purchaser acknowledges that the Property will
be conveyed subject to the CC&R's, as amended by the CC&R Amendment (the
"Amended CC&R's"). In addition to other matters, the Amended CC&R's shall:
(a) Incorporate, as part of the property covered thereunder, the
Property.
(b) Contain a prohibition that, for so long as the Property is
utilized primarily for automotive service and the retail sale of tires, no other
portion of the Center shall be used for such purposes, provided, however, that
such restriction shall not prevent other property in the Center from being used
primarily for the conduct of (i) a motor vehicle lubrication and oil change
business; or (ii) a business in which the sale of tires is an incidental part of
such business (ie., does not constitute more than 10% of the gross sales of such
business).
(c) Provide that any private roadways shall be governed by the CC&R's
and each property owner within the Center shall pay it's proportionate share of
expenses (as set forth in the CC&R's) which shall be allocated among those
property owners owning platted lots within any phase of the development that has
been incorporated in the CC&R's currently being served by the roads and
services.
(d) Contain provisions allowing the Seller to "phase" the development
of the property within the Center.
(e) Contain provisions allowing the Seller to approve all plans and
specifications for any improvements to be constructed on any property within the
Center, and development plan for or plat of any property within the Center.
(f) Amend the provisions dealing with signage for the Center signs.
Purchaser shall have the right to approve the Amended CC&R's in accordance with
the procedures set forth in Section 10.12.
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. Visibility and Access Easement.
(a) At Closing, Seller shall grant Purchaser an easement (the
"Visibility Easement") that will provide for restrictions on the construction of
improvements to the South of the Property such that the signage on the
improvements Purchaser intends to construct on the Property will be more visible
to northbound traffic on Powers Boulevard. Seller shall cause the documents
creating the Visibility Easement to be prepared at its expense and present the
same for Purchaser's approval pursuant to Section 10.12.
(b) At Closing, Seller shall reserve from the conveyance of the
Property to Purchaser, an access easement (the "Access Easement") over and
across the Property to provide access from the Center to and from Seller's
property located to the North of the Property.
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.
11
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 and damages.
Purchaser and Seller hereby agree that if Purchaser elects to recover damages
from Seller, Purchaser's damages shall not exceed $50,000, and Purchaser hereby
waives its right to recover damages from Seller in excess of such amount,
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, and American Spectrum Real Estate
Services (together, "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 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 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. Purchaser shall not have the right to assign all or
any part of its interest or rights under this Agreement without the prior
written consent of Seller, except for an assignment to an affiliate. For
purposes hereof, "affiliate" means any person or entity which controls, is
controlled by, or is under common control with, the Purchaser. A person or
entity shall be deemed to have control of another person or entity if such
person or entity directly or indirectly or acting in concert with one or more
persons and/or entities, or through one or more subsidiaries, owns, controls or
holds with power to vote more than 15 percent of the voting shares or rights of
12
such other entity, or controls in any manner the election or appointment of a
majority of the directors, trustees or managers of another entity, or is the
general partner in or has contributed more than 25 percent of the capital of
such other entity.
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:
PCRO Limited Liability Company
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn:
-----------------------
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
and to
Xxxxxx, Xxx & Herd, P.C.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxx
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.
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.
13
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 or 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 n 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. Purchasers offer as represented by this
Agreement shall continue in effect only until March 30, 1998. If Purchaser has
not received a copy of this Agreement executed by Seller on or before that date,
Purchasers offer and this Agreement shall immediately terminate and shall no
longer be of any force or effect.
14
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:
PCRO Limited Liability Company
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------------
Its: Manager
------------------------------------------------
15
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: Member
--------------------------
American Spectrum Real Estate Services
By: /s/ Xxxxx Xxxx
--------------------------
Its: Member
--------------------------
16
EXHIBITS
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Exhibit A Legal Description of Center
Exhibit B Map of Property
Exhibit C Preliminary Plan
Exhibit D Escrow Agreement
Exhibit E Map Showing Development Property and Private Road
Exhibit F Map showing Street Easement
17
EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Legal Description of Center
(Omitted)
18
EXHIBIT B
to
Agreement for the Purchase and
Sale of Commercial Real Estate
(Map of Property Graphic Omitted)
19
EXHIBIT C
to
Agreement for the Purchase and
Sale of Commercial Real Estate
(Preliminary Plan Graphic Omitted)
20 (Page 1 of 2)
EXHIBIT C (continued)
(Preliminary Plan Graphic Omitted)
20A (Page 2 of 2)
EXHIBIT D
to
Agreement for the Purchase and
Sale of Commercial Real Estate
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is executed this ..... day of ....... 1998, by and
among Xxxxxx Xxxxxx, Ltd., a Colorado limited partnership ("Xxxxxx"), PCRO
Limited liability Company, a Colorado limited liability company ("PCRO") and
Lawyers Title Insurance Company ("Escrow Agent").
RECITALS
A. PCRO and Xxxxxx entered into a certain Agreement for the Purchase and
Sale of Commercial Real Estate dated March _, 1998 (the "Contract"), whereby
Xxxxxx agreed to sell to PCRO, and PCRO agreed to buy, certain real property
located in El Paso County, Colorado, as more particularly described on Exhibit A
attached hereto (the "Property").
B. As partial consideration for PCRO's purchase of the Property, Xxxxxx
agreed to install certain on site improvements and off site improvements.
C. Some or all of the on site improvements ("On Sites") listed on Exhibit B
have not been completed or paid to date. However, the parties nonetheless desire
to close the transaction provided for in the Contract.
D. To ensure that the On Sites will be completed and paid for in a timely
manner, PCRO and Xxxxxx have agreed to close on the date hereof and Xxxxxx has
agreed to deposit with Escrow Agent, pursuant to the terms of this Escrow
Agreement, the sum of $200,000.00 (the "Funds").
E. The Closing shall be completed today, and the Escrow Agent shall hold
the Funds to disburse the Funds post-closing pursuant to the terms of this
Escrow Agreement.
NOW THEREFORE, in consideration for their mutual covenants herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows
1. Closing; The Account. The Closing shall be completed forthwith and
immediately thereafter Escrow Agent shall deposit the Funds in an interest
bearing account at a federally chartered financial institution, the deposits of
which are insured by the Federal Deposit Insurance Corporation, which should be
designated as "Lawyers Title Insurance Company on behalf of Xxxxxx Powers, Ltd."
(the "Account"). Unless and until there is a default by Xxxxxx pursuant to
Paragraph 3 following, interest accruing on the Account shall be paid monthly to
Xxxxxx.
21
2. Disbursements to Xxxxxx.
a. The parties acknowledge that disbursements from the Account to
Xxxxxx shall be made with respect to the On Site line items in Exhibit B. Thus,
Xxxxxx will only be entitled to receive the amount set forth in Exhibit B for a
given On Site line item, subject to Subparagraph f. below, and any greater costs
incurred for that On Site line item shall be Xxxxxx'x sole responsibility;
b. Prior to any disbursements being made to Xxxxxx, Xxxxxx or a
development manager designated in writing by Xxxxxx, shall submit a certificate
and demand for payment ("Certificate") to Escrow Agent at the address set forth
on the signature page of this Escrow Agreement. The Certificate shall set forth,
by line item, the type of On Sites for which work has been done, the extent to
which each has been completed, the amount of payment (based on Exhibit 13) that
is being demanded for each On Site line item, the total disbursement amount
being requested and whether the Certificate is a final disbursement request;
x. Xxxxxx may request payment of the amount expended for any On Site
line item, provided however, that if during the term of this Escrow Agreement
the amount requested by Xxxxxx for an On Site line item, together with all
previously advanced amounts for that On Site line item, exceeds the amount shown
on Exhibit B for such On Site line item, Escrow Agent shall only disburse to
Xxxxxx the amount designated on Exhibit B for that On Site line item;
d. After confirming that payments for any particular On Site line item
have not exceeded the amount provided in Exhibit B, Escrow Agent shall promptly
disburse the requested amount from the Account. Each disbursement shall be in
the form of a lien waiver check from Escrow Agent and shall be made payable
jointly to the contractor performing the work and Xxxxxx;
x. Xxxxxx shall only submit disbursement Certificates to Escrow Agent
twice each month, but shall be permitted to submit one final Certificate at any
time to handle any previously unsubmitted On Site costs. Each Certificate shall
contain all previously unsubmitted On Site costs which have been incurred by
Xxxxxx to date; and,
f. If Xxxxxx installs all of the On Sites (rather than PCRO) and funds
are remaining in the Account following Xxxxxx'x final Certificate amounts,
Escrow Agent shall then disburse all remaining amounts to Xxxxxx.
3. Default by Xxxxxx - PCRO's Completion. If all On Sites have not been
completed by..........., 199.., PCRO may notify Escrow Agent, and following the
giving of such notice, may itself complete the On Site improvements, and draw on
the remaining Funds held by the Escrow Agent in accordance with the procedures
set forth in Section 2 hereinabove.
4. Termination of Escrow. This Escrow shall terminate upon completion of
all the On Site Improvements, or by written agreement of Xxxxxx and PCRO.
5. Amendments. No changes or modifications shall be effected in the terms
of this Escrow Agreement except by written instrument signed by Xxxxxx and PCRO.
Escrow Agent shall not be obligated to honor or act upon any communications or
notices received from Xxxxxx or PCRO unless such communications are In writing.
6. Governing Law. This Escrow Agreement shall be construed and interpreted
in accordance with the laws of the State of Colorado.
22
7. Escrow Protection. If, at any time, Escrow Agent shall be uncertain as
to any performance required of Escrow Agent hereunder, Escrow Agent shall
attempt to obtain the written understanding of Xxxxxx and PCRO as to such
performance. If Escrow Agent is unable to obtain such understanding, it may
bring an interpleader or declaratory judgment action in the District Court of El
Paso County to resolve the questions as to which it is uncertain. Xxxxxx and
PCRO hereby agree for themselves to the jurisdiction of the District Court of El
Paso County, for the purposes of such an action.
8. Indemnification. PCRO and Xxxxxx shall defend, indemnify and hold Escrow
Agent harmless from and against all claims brought against Escrow Agent as a
consequence of its actions hereunder, provided that Escrow Agent has acted in
good faith and in compliance with the terms of this Escrow Agreement. The
indemnification includes reasonable attorneys' fees, together with ail
additional costs incurred by Escrow Agent in defending against any such claim.
9. Notices. All notices required or permitted to be given or delivered
hereunder shall be in writing and be hand delivered or sent by a nationally
recognized overnight courier for "next day" delivery, with all delivery costs
paid, addressed to the party intended at its address as set forth in the Escrow
Agreement or such other address as it may designate by notice given to the other
party in the manner aforesaid. All such notices shall be deemed to have been
given and delivered when hand delivered, or when delivered by Federal Express,
UPS, Airborne or any other overnight delivery service.
23
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement on the
date first set forth above.
XXXXXX XXXXXX, LTD.
c/x Xxxxxx Capital Corporation
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
By: Xxxxxx Capital Corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------------
PCRO Limited Liability Company
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------------
LAWYERS TITLE INSURANCE COMPANY
000 Xxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
By: /s/ Xxxxx Power
-----------------------------------------------
24
EXHIBIT A
to
Escrow Agreement
LEGAL DESCRIPTION
Lot .... in the Crossing at Xxxxxx Park, Filing No. ...., in the City of
Colorado Springs, El Paso County, Colorado
25
EXHIBIT B
to
Escrow Agreement
ON SITE IMPROVEMENTS
(omitted)
26
EXHIBIT E
to
Agreement for the Purchase and
Sale of commercial Real Estate
(Map Graphic Omitted)
27
EXHIBIT F
to
Agreement for the Purchase and
Sale of Commercial Real Estate
(Map of Street Easement Graphic Omitted)
28
