Exhibit 10
OPTION AGREEMENT
between
THE GENESEE COMPANY,
a Colorado corporation,
as Purchaser,
and
RS INVESTMENTS VI, LLC,
a Colorado limited liability company
as Seller
September 16, 1999
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") is made as of the 16th day of
September, 1999 (the "Effective Date"), by and between THE GENESEE COMPANY, a
Colorado corporation ("Purchaser"), and RS INVESTMENTS VI, LLC, a Colorado
limited liability company ("Seller").
Recitals
A. Seller has agreed to grant an option to Purchaser for the purchase
of certain real property located in the County of Xxxxxxx, State of Colorado,
and more particularly described in Exhibit A attached hereto and made a part
hereof, on the terms and provisions set forth herein.
B. As used in this Agreement, the term "Property" includes all of the
following:
(1) The real property described in Exhibit A together with all
easements, rights-of-way, appurtenances, leases, subleases, agreements,
licenses, tenements and hereditaments appertaining to or otherwise benefiting or
used in connection with such real property, together with all of Seller's right,
title and interest in and to any strips of land, streets, and alleys abutting or
adjoining such real property (the "Real Property");
(2) All right, title and interest of Seller in and to all
governmental permits, licenses, certificates and authorizations relating to the
construction, development, use or operation of the Property, to the extent that
they relate to the Property and are assignable (the "Permits"); and
(3) A nonexclusive interests in Seller's interest in all site
plans, surveys, plats, plans, soil and substratus studies, architectural,
construction, road, drainage and utility drawings, plans and specifications,
engineering plans and studies, landscape plans, appraisals, marketing,
feasibility and environmental studies, and other plans and studies of any kind
if existing and in Seller's possession or control that relate to the Property,
to the extent that they relate to the Property and are assignable (the "Plans").
(4) All water and water rights, xxxxx and well permits and
rights, ditches and ditch rights, reservoir and reservoir rights, and ditch and
water company stock, if any, appurtenant to the Real Property, whether in the
nature of tributary, non-tributary or not non-tributary interests (collectively,
the "Water Rights");
(5) All right, title and interest of Seller, if any, in and to
all unexpired warranties, guaranties and bonds, including, without limitation,
contractors' and manufacturers' warranties or guaranties, relating to the
Property, to the extent that they relate to the Property and are assignable (the
"Warranties");
(6) Any and all other rights, privileges, and appurtenances
owned by Seller and in any way related to or used in connection with the
Property, to the extent that they relate to the Property and are assignable,
including, without limitation, rights to use any and all trademarks and trade
names relating to the Property (the "Intangible Property").
Agreement
NOW, THEREFORE, for the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Option to Purchase the Property
1.1 Option. Seller hereby grants to Purchaser an exclusive option (the
"Option") to purchase the Property on the terms and provisions set forth herein.
1.2 Purchase Price. Purchaser shall deliver to Seller an option deposit
in the amount of $765,000.00 (the "Deposit") to be held in pursuant to the terms
hereof. In the event Purchaser defaults hereunder or fails to exercise the
Option within the Option Term (unless this Agreement has previously been
terminated as permitted herein), the Deposit shall be retained by Seller as
liquidated damages hereunder. In all other events the Deposit shall be applied
to the Purchase Price at Closing (as defined below) or returned to Purchaser
upon the termination of this Agreement by any reason other than Purchaser's
default or failure to exercise the Option, as applicable. The total purchase
price (the "Purchase Price") for the Property shall be the sum of: (i)
$765,000.00, and (ii) 4,335,000.00 increased at a rate of 17% per annum,
compounded annually, commencing on the date hereof, and continuing until the
Closing Date (as defined below). The Purchase Price shall be payable, subject to
prorations and adjustments in accordance with Article IX, at the closing (the
"Closing") in cash, by certified or cashier's check, wire transfer, or other
immediately available funds.
1.3 Term and Exercise of Option. Purchaser shall have the right to
exercise the Option by delivery of written notice thereof (the "Exercise
Notice") to Seller at any time during the period commencing on the date hereof
and ending on December 1, 2000 (the "Option Term"). If Purchaser fails to
deliver the Exercise Notice during the Option Term, the Deposit shall be
retained by Seller and this Option shall terminate and be of no further force or
effect. If Purchaser delivers the Exercise Notice during the Option Term, the
Closing shall occur on the 15th day after the delivery thereof, or on such
earlier date as the parties may mutually agree.
ARTICLE II
Investigation of the Property
2.1 Title and Survey Matters. The "Permitted Exceptions" hereunder
shall consist of: (i) all matters to which Seller takes title to the Property;
and (ii) all plats, easements, dedications, restrictions and other matters
agreed to or imposed by Seller or any governmental entity after the date hereof
in connection with the rezoning, platting and/or development of the
2
Property, to the extent previously approved by Purchaser, which approval shall
not be unreasonably withheld.
2.2 Inspection of Property. Purchaser acknowledges that it has had the
opportunity to investigate the Property, the zoning and other governmental
limitations applicable to the Property, all documents and/or information
provided to Purchaser relating thereto, and any other aspects or characteristics
of the Property which may affect its development, usage, operation or
marketability. Purchaser's past investigations of the Property have been
sufficient to induce Purchaser to enter into this Agreement, and Purchaser shall
have no right to terminate this Agreement and to receive a return of the Deposit
for any reason, except as expressly set forth in this Agreement. Purchaser shall
continue to have the right of investigation, which shall include, without
limitation, the right to have made, at Purchaser's expense, any surveys, studies
or inspections of the Property as Purchaser may deem necessary or appropriate.
Seller agrees to cooperate reasonably with any such investigations, inspections,
surveys or studies made by or at Purchaser's direction so long as such
cooperation is at no expense to Seller. Purchaser shall indemnify, defend, and
hold harmless Seller from any expenses, damages and liabilities, including
reasonable attorneys' fees, that Seller may suffer or incur arising out of any
claims for property damage or personal injury, or claims from materialmen or
laborers, which in turn arise from Purchaser's investigations under this Section
2.2, and such indemnification shall survive the termination of this Agreement.
Further, in the event Purchaser is unwilling or unable to close the transaction
contemplated by this Agreement, for any reason whatsoever, except by reason of
Seller's default, any and all plats, plans, submittals to governmental agencies
and utilities, studies or tests, including, but not limited to, soil tests,
topographical information, engineering and other similar preliminary work, but
expressly excluding architectural and construction plans, drawings,
specifications and designs, economic, financial and marketability studies and
pro formas, and similar proprietary information of Purchaser, shall immediately
be delivered to Seller and thereafter become the sole property of Seller.
ARTICLE III
Title
3.1 Status of Title. At Closing, Seller shall convey to Purchaser fee
simple title to the Property, subject only to the Permitted Exceptions.
3.2 Issuance of Title Policy. At Closing, Seller shall cause Land Title
Guarantee Company (the "Title Company") to issue to Purchaser, or
unconditionally commit to issue to Purchaser after Closing, an ALTA extended
coverage owner's policy of title insurance insuring marketable, insurable title
to the Property in Purchaser in the amount of the Purchase Price, subject only
to the Permitted Exceptions (the "Title Policy"). At or before the Closing,
Seller shall satisfy all requirements contained in the Title Commitment or in
any update thereof, except for those requirements which by their nature can only
be satisfied by Purchaser.
3.3 Failure of Title. In the event Seller, through no fault of its own,
is unable to convey title to the Property on the Closing Date in accordance with
the provisions of this Agreement, Seller shall, on or before the Closing Date,
give notice of such inability (and the nature thereof) to Purchaser, and
Purchaser may either (i) accept such title as Seller can convey, without any
reduction of the Purchase Price, or (ii) terminate this Agreement by written
notice to
3
Seller and the Title Company given on or before the Closing Date, in which event
the Deposit shall be returned to Purchaser, and both parties shall be relieved
of any further obligations hereunder, except those which expressly survive
termination.
ARTICLE IV
Seller's Representations, Warranties and Covenants
Seller represents, warrants and covenants to Purchaser as follows:
4.1 No Third-Party Interests. Seller has not granted to any party any
option, contract or other agreement with respect to a purchase or sale of the
Property or any portion thereof or any interest therein.
4.2 No Possessory Rights. Except for any rights of possession under the
Permitted Exceptions, there are no parties in possession of any of the Real
Property, and there are no other rights of possession or use which have been
granted to any third party.
4.3 Notices. Seller has no knowledge, and Seller has not received
notice, of: (i) the Property being in violation of any applicable statutes,
ordinances, codes (including, but not limited to, zoning, building, subdivision,
pollution, environmental protection, water disposal, health, fire and safety
engineering codes), or the rules and regulations of, any governmental authority
having jurisdiction over the Property; (ii) any actions, suits, proceedings or
claims pending or threatened with respect to or in any manner affecting the
Property or the ability of Seller to consummate the transaction contemplated by
this Agreement; or (iii) any pending or threatened condemnation or similar
proceedings or special assessments affecting the Property, or any part thereof.
4.4 Authority. Seller is a limited liability company organized, validly
existing and in good standing under the laws of the State of Colorado. Seller
has the full right and authority to enter into this Agreement and consummate the
transaction contemplated by this Agreement. All requisite entity action has been
taken by Seller in connection with the entering into of this Agreement, the
instruments referenced herein, and the consummation of the transaction
contemplated hereby. Each of the persons signing this Agreement on behalf of
Seller is authorized to do so. Purchaser shall furnish to Seller any and all
documents to evidence such authority as Seller shall reasonably request.
4.5 Environmental Conditions. Seller has no knowledge, and Seller has
not received notice, of: (i) any violation of Applicable Environmental Laws
relating to the Real Property; or (ii) the presence, use, storage or discharge
of any Hazardous Substances on, in or under the Real Property.
As used herein, the term "Applicable Environmental Laws" shall mean any
local, state or federal law, rule or regulation, pertaining to environmental
regulation, contamination, cleanup or disclosure, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (42 U.S.C. ss. 9601, et seq.), the Resource, Conservation and
Recovery Act, as amended, (42 U.S.C. ss. 6901, et seq.), Superfund Amendments
and Reauthorization Act of 1986 (Pub. L. 00-000 000 Stat. 1613), the Toxic
Substances Control Act (15 U.S.C. ss. 2601, et seq.), the Emergency Planning and
Community
4
Right to Know Act of 1986 (42 U.S.C. ss. 1101, et seq.) and all amendments of
the foregoing, or any state superlien or environmental clean-up or disclosure
statutes. As used herein, the term "Hazardous Substances" shall mean all
substances and materials which are included under or regulated by any Applicable
Environmental Law together with asbestos, polychlorinated biphenyls, petroleum
and raw materials which include hazardous constituents.
4.6 Consents; Binding Obligations. This Agreement and all documents
required hereby to be executed by Seller are and shall be valid, legally binding
obligations of and enforceable against Seller in accordance with their terms.
4.7 Omissions; Indemnity. The copies of any documents furnished to
Purchaser in connection with this transaction are, to the best of Seller's
knowledge, true and complete copies of the documents they purport to be. Each of
the representations and warranties contained in this Article IV are acknowledged
by Seller to be material and to be relied upon by Purchaser in proceeding with
this transaction, shall be deemed to have been remade by Seller as of the date
of Closing and shall survive Closing. Seller shall indemnify and hold Purchaser
harmless and defend Purchaser from any loss, liability or expense, including
reasonable attorneys' fees, incurred by Purchaser, and any claim made against
Purchaser by reason of the breach of any of the foregoing representations or
warranties.
Except as expressly set forth in this Agreement, Purchaser is
purchasing the Property "as is" with all faults and defects, and Purchaser
acknowledges and agrees that, except as expressly set forth in this Agreement,
Seller has not made, does not make and specifically 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 (a) the
nature, quality or condition of the Property, including, without limitation, the
water, soil and geology, or the presence or absence of any pollutant, hazardous
waste, gas or substance or solid waste on or about the Property, (b) the income
to be derived from the Property, (c) the suitability of the Property for any and
all activities and uses which Purchaser may intend to conduct thereon, (d) the
compliance of or by the Property or its operations with any laws, rules,
ordinances or regulations of any governmental authority or body having
jurisdiction including, without limitation, all applicable zoning laws, (e) the
habitability, merchantability or fitness for a particular use or purpose of the
Property, or (f) any other matter related to or concerning the Property; and
Purchaser shall not seek recourse against Seller on account of any loss, cost or
expense suffered or incurred by Purchaser with regard to any of the matters
described in clauses (a) through (f) above subject to the express provisions of
this Agreement. Purchaser acknowledges that Purchaser, having been given the
opportunity to inspect the Property, is relying solely on its own investigation
of the Property and not on any information provided or to be provided by Seller,
except as expressly set forth in this Agreement. Purchaser further acknowledges
that no independent investigation or verification has been or will be made by
Seller with respect to any information supplied by Seller concerning the
Property, and, except as expressly set forth in this Agreement, Seller makes no
representation as to the accuracy or completeness of such information, it being
intended by the parties that Purchaser shall verify the accuracy and
completeness of such information, itself. Purchaser acknowledges that the
disclaimers, agreements and other statements set forth in this paragraph are an
integral portion of this Agreement and that Seller would not agree to sell the
Property to Purchaser for the purchase price without the disclaimers, agreements
and other statements set
5
forth in this paragraph. Purchaser further agrees that the provisions of this
paragraph shall survive the Closing and the delivery of the Deed.
ARTICLE V
Purchaser's Representations, Warranties and Covenants
Purchaser represents, warrants and covenants to Seller as follows:
5.1 Authority. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado. Purchaser
has the full right and authority to enter into this Agreement and consummate the
transaction contemplated by this Agreement. All requisite corporate action has
been taken by Purchaser in connection with the entering into of this Agreement,
the instruments referenced herein, and the consummation of the transaction
contemplated hereby. Each of the persons signing this Agreement on behalf of
Purchaser is authorized to do so. Purchaser shall furnish to Seller any and all
documents to evidence such authority as Seller shall reasonably request.
5.2 Additional Acts. In addition to the acts and documents recited
herein and contemplated to be performed, executed and delivered by Purchaser,
Purchaser shall perform, execute and deliver or cause to be performed, executed
or delivered at the Closing or thereafter any and all further acts, documents
and assurances as Seller or the Title Company may reasonably require to
consummate or evidence the consummation of the transactions contemplated herein.
5.3 Omissions; Indemnity. Each of the representations and warranties
contained in this Article V are acknowledged by Purchaser to be material and to
be relied upon by Seller in proceeding with this transaction, shall be deemed to
have been remade by Purchaser as of the date of Closing and shall survive
Closing. Purchaser shall indemnify and hold Seller harmless and defend Seller
from any loss, liability or expense, including reasonable attorneys' fees,
incurred by Seller or any claim made against Seller by reason of the breach of
any of the foregoing representations or warranties.
ARTICLE VI
Purchaser's Obligation to Close
6.1 Conditions. Purchaser shall not be obligated to close hereunder
unless each of the following conditions shall exist on the date of Closing (as
may be extended pursuant to this Agreement, the "Closing Date"):
6.1.1 Title Policy. The Title Company shall be prepared to
issue (or prepared to unconditionally commit to issue) the Title Policy as
described in Section 3.2.
6.1.2 Accuracy of Representations. The representations and
warranties made by Seller in Article IV shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
6
6.1.3 Seller's Performance. Seller shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by Seller on or before the Closing
Date.
6.1.4 Failure of Conditions. If any condition specified in
Section 6.1 is not satisfied on or before Closing, Purchaser may, at its option,
(i) waive such condition either at the time originally established for Closing
or at any time thereafter, or (ii) terminate this Agreement by written notice
thereof to Seller, and receive the return of the Deposit, in which event both
parties shall be relieved of any further obligations hereunder, except those
which expressly survive termination.
ARTICLE VII
Closing
7.1 Time of Closing. Closing shall take place at 10:00 a.m. on the
Closing Date, in the offices of the Title Company located at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such other time and place or on
such earlier date as may be mutually agreed upon by Seller and Purchaser.
7.2 Deliveries. At Closing the following shall occur:
7.2.1 Deed. Seller shall deliver to Purchaser a duly executed
and acknowledged special warranty deed, of form reasonably acceptable to
Purchaser, conveying good, marketable and insurable fee simple title to the Real
Property to Purchaser, subject only to the Permitted Exceptions.
7.2.2 Payment. Purchaser shall pay to Seller the Purchase
Price as provided in Section 1.2, subject to the adjustments described in
Article IX.
7.2.3 Possession. Possession of the Property shall be
delivered to Purchaser.
7.2.4 Assignment of Intangibles; Delivery of Permits. Seller
shall execute and deliver to Purchaser an assignment, of form reasonably
acceptable to Purchaser, of all of Seller's right, title and interest in and to
the Warranties, Plans, Permits and General Intangibles, to the extent the same
are assignable. Seller shall deliver to Purchaser the originals (or accurate
copies) of all Plans and Permits in Seller's possession and all other materials
of whatever kind owned by Seller relating to the development, improvement and
ownership of the Property.
7.2.5 Water Rights. Seller shall deliver to Purchaser a duly
executed and acknowledged quit claim deed, of form reasonably acceptable to
Purchaser, conveying the Water Rights, if any, to Purchaser.
7.2.6 Non-Foreign Certificate. Seller shall execute and
deliver to Purchaser and the Title Company an affidavit that Seller is exempt
from the withholding requirements of Section 1445 of the Internal Revenue Code.
7
7.2.7 Withholding Exemption Certificate. Seller shall execute
and deliver to Purchaser and the Title Company a Colorado Form DR-1083, in form
required by law.
7.2.8 Real Property Transfer Declaration. Purchaser shall
execute and deliver to Seller and the Title Company a Real Property Transfer
Declaration, in form required by law, concerning information with respect to a
conveyance of a Colorado real property interest.
7.2.9 Mechanics' Liens. Seller shall execute and deliver to
the Title Company such agreements or statements concerning claims for mechanic's
liens as may be required by the Title Company in order to issue the Title
Policy.
7.2.10 Miscellaneous Documents. Seller shall, whenever and as
often as it shall be reasonably requested so to do by Purchaser, and Purchaser
shall, whenever and as often as it shall be reasonably requested so to do by
Seller, execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any and all conveyances, assignments and all other instruments
and documents as may be reasonably necessary in order to complete the
transaction herein provided and to carry out the intent and purposes of this
Agreement.
ARTICLE VIII
Prorations and Closing Expenses
8.1 Closing Adjustments. The cash due at Closing pursuant to Section
1.2.2 shall be subject to adjustment as of Closing in accordance with the
following provisions:
8.2 Taxes. Real and personal property taxes on the Property shall not
be prorated.
8.3 Liens and Encumbrances. The amount of any lien, deed of trust or
other monetary encumbrance then affecting the Property, including all prepayment
penalties, shall be paid from the funds to which Seller shall otherwise be
entitled. If such funds are insufficient to pay all such encumbrances, Seller
shall pay the deficiency.
8.4 Closing Costs. Purchaser shall pay the Title Company's escrow and
closing fee, the premium for the Title Policy, the cost of recording the deed,
all conveyance, transfer, sales and other taxes of fees, if any, and such other
closing costs as are customarily incurred in connection with the purchase and
sale of real property in the Denver metropolitan area.
8.5 Reimbursement of Expenses. During the Option Term, Purchaser shall
promptly reimburse Seller for all expenditures reasonably made by Seller in
connection with the ownership, rezoning, platting and development of the
Property, including, without limitation, taxes, fees, assessments, association
dues and insurance (but reduced by the amount of the tax proration received by
Seller in connection with its purchase of the Property), but excluding any fees,
interest or other costs incurred by Seller in connection with any loan or other
financing arrangement. Any discretionary expenditures (which shall not include
such expenditures as taxes and insurance) shall be subject to Purchaser's prior
approval.
8
8.6 Settlement Statement. At Closing, Seller and Purchaser shall
execute a Closing settlement statement to reflect the credits, prorations, and
adjustments contemplated by or specifically provided for in this Agreement.
ARTICLE IX
Remedies
9.1 Breach by Seller. Time is of the essence of Seller's obligations
hereunder. If Seller fails to comply with any of its obligations hereunder which
are required to be performed at or prior to Closing, Purchaser, at Purchaser's
option, shall be entitled, as its sole remedies, to either: (i) terminate this
Agreement, whereupon the Deposit shall be returned to Purchaser and both parties
shall be discharged from all duties and performance hereunder; or (ii) to seek
specific performance. In no event shall Seller be liable to Purchaser for any
actual, punitive, speculative, consequential or other damages.
9.2 Breach by Purchaser. Time is of the essence of Purchaser's
obligations hereunder. If this Agreement has not been previously terminated as
permitted herein, and Purchaser fails to exercise the Option and complete the
acquisition as herein provided, Seller, as its sole and exclusive remedy, shall
be entitled to terminate this Agreement, whereupon the Deposit shall be retained
by Seller as liquidated damages. Seller waives specific performance and/or
damages other than liquidated damages in the amount of the Deposit.
9.3 Post-Closing Breach. The provisions of Sections 9.1 and 9.2
notwithstanding, either party shall be entitled, in addition to any other
remedies available under this Agreement or otherwise, to seek damages for any
post-Closing breach by the other party of its representations, warranties or
covenants hereunder.
9.4 Attorneys' Fees. Notwithstanding any contrary provision contained
in this Agreement, in the event of any litigation or legal action arising out of
this Agreement, the court shall award the prevailing party its reasonable costs
and expenses incurred in connection with such litigation or legal action,
including, without limitation, its reasonable attorneys' fees and costs.
ARTICLE X
General Provisions
10.1 Brokers. Seller and Purchaser each hereby represent and warrant to
the other that their only contact with the other or with the Property has been
made without the assistance of any broker or other third party. Seller and
Purchaser agree to save and hold each other free, clear and harmless from any
claim, cost or expense, including reasonable attorneys' fees, for or in
connection with any claims for commissions or compensation claimed or asserted
by or through each respective party in connection with the transaction
contemplated herein.
10.2 Further Assurances. Each of the parties hereto undertakes and
agrees to execute and deliver such documents, writings and further assurances as
may be requisite to carry out the intent and purpose of this Agreement.
9
10.3 Entire Agreement. No change or modification of this Agreement
shall be valid unless the same is in writing and signed by the parties hereto.
No waiver of any of the provisions of this Agreement shall be valid unless in
writing and signed by the party against whom it is sought to be enforced. This
Agreement contains the entire agreement between the parties relating to the
purchase and sale of the Property. All prior negotiations between the parties
are merged in this Agreement; and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between the parties other than as herein set forth.
10.4 Survival. All of the parties' representations, warranties,
covenants and agreements hereunder, to the extent not fully performed or
discharged by or through Closing, shall be deemed not merged into any instrument
delivered at Closing and shall remain fully enforceable thereafter.
10.5 Dates. If any date set forth in this Agreement for the delivery of
any document or the happening of any event (such as, for example, the expiration
of the Inspection Period or the Closing Date) should, under the terms hereof,
fall on a weekend or holiday, then such date shall be automatically extended to
the next succeeding weekday that is not a holiday.
10.6 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
10.7 Notices. Any notice required or permitted to be sent pursuant to
this Agreement shall be in writing and shall be deemed given, sent, delivered
and received upon the earlier of: (i) when personally or actually delivered; or
(ii) three (3) business days after having been deposited in a U.S. Postal
Service depository and sent by registered or certified mail, return receipt
requested, with all required postage prepaid; (iii) upon confirmed telefacsimile
transmission and the deposit of the original in a U.S. Postal Service
depository, with all required postage; or (iv) one (1) business day after being
deposited with a commercial overnight courier and sent by overnight delivery
with all required charges prepaid; and addressed:
If to Purchaser:
The Genesee Company
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
10
If to Seller:
RS Investments VI, LLC
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Short
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
Any address fixed pursuant to the foregoing may be changed by the
addressee by notice given pursuant to this Section 10.9.
10.8 Headings. The paragraph headings which appear in some of the
Sections of this Agreement are for purposes of convenience and reference and are
not in any sense to be construed as modifying the Sections in which they appear.
10.9 Assignment. Purchaser may not assign this Agreement without the
consent of Seller, which consent shall not be unreasonably withheld.
10.10 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
10.11 Facsimile Signatures. The facsimile signature of any party on
this Agreement shall be deemed an original for all purposes.
10.12 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed a duplicate original.
10.13 Acceptance. Upon execution and delivery of this Agreement by
Purchaser and Seller, this Agreement shall constitute an offer to purchase the
Property on the terms and conditions set forth herein. The foregoing
notwithstanding, either party may revoke its execution and delivery at any time
prior to the execution and delivery by the other party, by delivering oral or
written notice (which need not conform with the requirements of Section 10.9
hereof) of such revocation to the other party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the Effective Date.
PURCHASER:
THE GENESEE COMPANY, a Colorado
corporation
By:
-------------------------------
Xxxxx X. Xxxxx
Vice President
SELLER:
RS INVESTMENTS VI, LLC, a Colorado
limited liability company
By:
-------------------------------
Xxxxxx X. Short, Manager
12
EXHIBIT A
to
PURCHASE AND SALE AGREEMENT
Legal Description
