Exhibit F
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 3, 1997 ("Effective Date") between
Xxxxxx Powers, Ltd., a Colorado limited partnership ("Seller") and State Bank &
Trust of Colorado Springs. a Colorado State Chartered Bank ("Purchaser"), upon
the basis of the following facts:
RECITALS
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Seller is the owner of the real property described in Exhibit A attached
hereto and incorporated herein by reference (the "Center"). Seller proposes to
develop the Center for commercial uses, and in furtherance thereof, proposes to
subdivide a portion of the Center ("Phase 1") substantially as shown on the
concept plan ("Concept Plan") attached hereto as Exhibit B.
Seller has entered into contracts with third parties for the sale of Lots 1
and 4 as shown on the Concept Plan. Purchaser desires to purchase from Seller
the property identified on the Concept Plan as Lot 2, for development by
Purchaser as a facility for a branch bank ("Purchaser's Intended Use").
Subject to the terms of this Agreement, Seller has agreed to sell the
"Property", as hereinafter described, to Purchaser.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, the parties hereby agree as follows:
SECTION 1. SALE OF PROPERTY. Subject to the terms and conditions provided
in this Agreement, Seller agrees to sell and Purchaser agrees to purchase all of
Seller's right, title and interest in and to the real property described in
Exhibit C and incorporated herein by reference (the "Property").
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $330,627.00 (the "Purchase Price"), adjusted as
provided in Section 3.2(c). The Purchase Price will be paid by Purchaser in the
following manner
2.1 Xxxxxxx Money Deposit. Purchaser has deposited the sum of $10,000.00
with Lawyers Title Insurance Company, 000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 (the "Title Company") as xxxxxxx money and as a deposit
towards payment of the Purchase Price (together with any additions to such
deposit, herein the "Xxxxxxx Money Deposit"). The Xxxxxxx Money Deposit shall be
credited against the Purchase Price at Closing (as defined below). The Xxxxxxx
Money Deposit shall earn interest 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
Purchaser may waive or consent to pursuant to Section 3.3, the 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 fourteen (14) days after the Effective
Date [March 17, 1997], 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 immediately 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. If the square footage of the Property as determined by the Survey is
different than 40,076 square feet, then the Purchase Price shall be increased or
decreased at the rate of $8.25 per square foot for every square foot by which
the area of the Property exceeds or is less than 40,076 square feet.
3.3 Defects of Title. Purchaser shall have the right to object to any
defect of title which appears in the Title Documents and which renders title to
the Property unmerchantable or which makes the Property unsuitable for
Purchaser's intended use or development (a "defect of title") Any objection to a
defect of title must be in writing and must be received by Seller no later than
the expiration of the Inspection Period (as defined in Section 4.2). Purchaser's
failure to provide Seller with written notice of an objection to any title
matter appearing in the Title Documents within the Inspection Period shall be
deemed to be a waiver by Purchaser of any objection it might otherwise have; and
all such title matters shall become additional "Permitted Exceptions."
Notwithstanding the foregoing, if a defect of title is not revealed in the Title
Documents and is discovered by Purchaser after the close of the Inspection
Period, Purchaser shall have until five (5) days after the date of its discovery
of the defect of title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the defect of title, provided, however,
that Purchaser shall be deemed to have approved and accepted any matters that
are shown on the Plat as described in Section 10.6. If Seller receives timely
written notice from Purchaser of a defect of title. Seller shall have the right,
in its sole discretion, to (a) correct or cure the defect of title, (b) obtain
title insurance over the defect of title through title policy endorsement or
otherwise, or (c) notify Purchaser that Seller does not intend to cure or insure
over the defect of title. If Seller is unable or unwilling to cure or insure
over a defect of title, Purchaser shall have the right to either (a) terminate
this Agreement and its obligations hereunder, or (b) waive its objection to the
defect of title. If Purchaser elects to terminate this Agreement, the Title
Company shall return the Xxxxxxx Money Deposit to Purchaser and neither party
shall have any further obligation hereunder. If Purchaser elects to waive its
objection to the defect of title, the title matter objected to shall thereafter
be considered a "Permitted Exception." A defect of title, regardless of its
disposition under this Section, shall not result in a reduction of the Purchase
Price.
SECTION 4. INSPECTION OF PROPERTY.
4.1 Inspection Items. Seller has, prior to the Effective Date, delivered to
Purchaser a phase 1 environmental assessment, dated December 12, 1997, and
prepared by E-Quest Corporation (the "Environmental Audit").
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4.2 Inspection Period. Purchaser shall have from the Effective Date through
fifty (50) days after the date on which Purchaser receives the last of the Title
Documents, but in any event not later than April 22, 1997 (the "Inspection
Period"), in which to determine whether or not the Property is suitable for
Purchaser's Intended Use, which determination shall be in Purchaser's sole
discretion. At anytime during the Inspection Period, Purchaser shall have the
right to terminate this Agreement and all of its obligations hereunder by
providing written notice to Seller of its election to 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.
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
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upon it, or will result in a violation of any applicable law, order, rule or
regulation of any governmental authority affecting Purchaser.
(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
Purchaser's ability to enter into or consummate this Agreement.
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.
(d) Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person.
(e) Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults.
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that all of the Property is sold by Seller and purchased
by Purchaser subject to the foregoing.
6.2 Radon. The Colorado Department of Health and the United States
Environmental Protection Agency ("EPA") have detected elevated levels of
naturally occurring radon in structures in the Colorado Springs area. EPA has
raised concerns with respect to adverse effects on human health of long-term
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or
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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) The Plat referenced in Section 10.6 has been recorded.
(d) Seller has provided Purchaser with a copy of the Letter of Credit
referenced in Section 10.3.
Section 10.3.
In the event that the conditions set forth above are not met or satisfied
on or before Closing, then Purchaser may either obtain a refund of the Xxxxxxx
Money Deposit following which neither party shall thereafter have any further
liability to the other hereunder or Purchaser may waive in writing the
nonfulfillment of any portion of these conditions and purchase the Property
pursuant to the terms and provisions hereof without any reduction in the
Purchase Price.
7.2 Condition Precedent to Seller's Obligation. The following matters shall
constitute absolute conditions precedent to Seller's obligations to sell the
Property:
(a) Purchaser's 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 thatexceeds $365,000.00.
(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 (and Seller
shall use its best efforts to cause the Plat to be recorded after approved and
executed by the City).
In the event the condition set forth above is not met or satisfied on
or before Closing, then Seller may terminate this Agreement by giving written
notice of termination to Purchaser in which event the Xxxxxxx Money Deposit
shall be refunded to Purchaser following which neither party shall thereafter
have any further liability to the other hereunder, or Seller may waive in
writing the nonfulfillment of the condition and sell the Property to the
Purchaser pursuant to the terms and provisions hereof.
SECTION 8. CLOSING.
8.1 Closing Date. The closing of the purchase and sale of the Property (the
"Closing") shall occur ten (10) days following notice from Seller that the Plat
referred to in Section 10.6 has been recorded, unless extended by Purchaser in
accordance with Section 8.4. The Closing shall occur at the offices of the Title
Company.
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8.2 Purchaser's Obligations at Closing. In addition to delivery of the
balance of the Purchase Price as described in Section 2.2., the net amount of
which (shown as the amount due Seller on the Settlement Statements executed at
Closing) 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.
(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.
8.4 Purchaser's Right to Extend Closing. In the event Purchaser has not
received approval of the City of Colorado Springs ("City") of Purchaser's
Development Plan (as hereinafter defined), Purchaser shall have the right to
extend the Closing for a period of 45 days by giving written notice to Seller on
or before the date then set for Closing, and depositing with the Title Company
prior to the giving of such notice to extend the Closing, the additional sum of
$25,000.00, which, together with the initial deposit of $10,000.00, shall be the
Xxxxxxx Money Deposit hereunder.
SECTION 9. SETTLEMENT AND PRORATIONS. The following items shall be prorated
or settled between Purchaser and Seller at Closing:
9.1 Taxes and Assessments. Prior to Closing, Seller shall pay the amount of
any unpaid real and personal property taxes allocable to the Property for tax
years prior to the year of Closing and any special assessments for improvements
installed prior to Closing. If Seller fails to pay the entire amount of such
taxes and assessments by Closing, Seller shall be debited on its settlement
sheets with the unpaid amount of such taxes and assessments and any resulting
penalties. Real property taxes and assessments for the Property for the year of
Closing, payable in the following calendar year, shall be apportioned between
Seller and Purchaser as of the date of Closing. Such apportionment shall be
computed on the basis of the most recent assessed valuation and mill levy
information, and shall be final.
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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, platting and the Off Site and On Site Development
Work (as hereinafter defined) of Phase 1, including the Property. On or before
forty (40) days after the Effective Date [April 12, 1997], Seller shall furnish
Purchaser with a development budget for all on and off site development work for
Phase 1 (including both "hard" and "soft" costs), with a time line for
completion of such work. Prior to the end of the Inspection Period, Seller and
Purchaser shall have agreed upon the development budget and the time line for
completion of such work. In the event the parties are unable to agree on the
development budget and the time line on or before the end of the Inspection
Period, then upon notice by either party to the other, this Agreement shall
terminate, and the Title Company shall immediately return the Xxxxxxx Money
Deposit to Purchaser. In the event the parties are able to agree, then three
copies of the agreed upon development budget ("Development Budget"), showing a
line item breakdown of all on and off site development work (the "Development
Work"), and time line for the completion of such work ("Time Line") shall be
signed by both parties, each shall retain one copy and one copy shall be
delivered to the Title Company.
10.2 Timing of Seller's Development Obligations. Prior to Closing, Seller
shall complete and attempt to obtain the City's approval of the Concept Plan and
the Plat (as hereinafter defined) of the Phase 1 property. It is anticipated
that none of the Development Work will be completed by Closing. As a
consequence, and to assure the Purchaser that the Development Work will be
completed in a timely manner following the Closing, the parties have agreed that
at Closing, they will place the net amount of the Purchase Price payable to
Seller at Closing in an escrow, the terms of which will be substantially as set
forth in the Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit D.
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 the following:
(a) Dedication of land for the interchange of Xxxxxx Park Boulevard
and Powers Boulevard and for the widening of Xxxxxx Park Boulevard.
(b) Construction of the adjacent strip to the north of Xxxxxx Park
Boulevard which widens Xxxxxx Park Boulevard pursuant to City specifications.
(c) Construction of curb and gutter on the north side of widened
Xxxxxx Park Boulevard.
(d) Construction of raised median on Xxxxxx Park Boulevard and the
construction of a traffic signal at the entry road of the Center.
(e) Construction of all drainage improvements required for Phase I of
the Center.
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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 Phase I in accordance with the City approved
grading plan (the "Grading Plan").
(b) Construction of interior roadway system per Concept Plan attached
hereto as Exhibit B.
(c) Utility loop construction, 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 ("Purchaser's Development
Plan") for the Property to be approved in accordance with applicable zoning laws
and City subdivision ordinances prior to the issuance of any building permit for
construction of improvements on the Property. In addition, Purchaser
acknowledges that in accordance with the provisions of the CC&R's (as
hereinafter defined) Seller will have certain approval rights, including the
right to approve development plans prior to their submission to the City. Before
submitting any Purchaser's 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
Purchaser's Development Plan, and Seller will cooperate with Purchaser's efforts
to obtain the City's approval of Purchaser's Development Plan as approved by
Seller.
10.6 Platting. Purchaser has been provided with a preliminary plat of the
Property, which Purchaser hereby acknowledges it has approved. Purchaser
acknowledges that the Property must be platted and that governmental authorities
will require a plat ("Plat") of Phase 1 (including the Property), to be approved
in accordance with applicable zoning laws and City subdivision ordinances and
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 Plat.
10.7 Seller's Plat Responsibilities. Contingent upon Closing, Seller shall
be responsible for all improvements, fees and agreements with the City
concerning either installation of improvements or provisions for public
facilities that 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 Property boundary, for repairing streets damaged by such extensions.
Purchaser shall be responsible for extending such utility services to the
improvements it constructs on the Property and for paying all tap, line
extension and other City imposed charges and fees in connection with the
extension of such utility services to the improvements. Purchaser acknowledges
that the City installs all electric lines and that Purchaser will be solely
responsible for making arrangements
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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 solely responsible for providing permanent
access to the Center from Xxxxxx Park Boulevard and for construction of all
private streets shown on the Concept Plan. 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 Phase 1
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.
10.12 Purchaser's Approval Rights. On or before fourteen (14) days after
the Effective Date [March 17, 1997], Seller shall deliver to Purchaser at
Seller's expense the following:
(a) The Grading Plan;
(b) The proposed final Concept Plan;
(c) The proposed final Plat;
(d) Plans and Specifications for the private roads.
In addition, Seller shall submit the CC&R's to Purchaser in accordance with
Section 11.1. 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
(m:bp-state.co3/2-28-97)
9
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.
SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. On or before twenty-one (21 ) days after the Effective Date
[March 24, 1997], Seller shall deliver to Purchaser at Seller's expense, the
covenants ("CC&R's") Seller intends to place on the Center and Phase 1,
including the Property. Purchaser acknowledges that the Property will be
conveyed subject to the CC&R's. In addition to other matters, the CC&R's shall:
(a) Contain a prohibition against the use of any property in the
Center, other than the Property, for a financial institution (an organization
that makes loans and collects deposits), including any federal or state
chartered commercial bank or saving and loan association, any commercial and
noncommercial credit union.
(b) 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 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.
(c) Contain provisions allowing the Seller to "phase" the development
of the property within the Center.
(d) 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.
(e) Shall permit Purchaser use of 20% of the signage space on the
southerly of two Center signs.
Purchaser shall have the right to approve the 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. RESERVED.
SECTION 13. NAME AND LOGO. Except for directional and location
identification purposes, neither the name "The Crossing at Xxxxxx Park Center,"
any derivatives thereof, nor the logos associated with such name may be used in
any way in connection with the Property or any promotion of it, unless Seller
has given its prior written approval to such use.
SECTION 14. CONDEMNATION. If, between the Effective Date and Closing, any
portion of the Property is taken in condemnation, Purchaser shall have the
option to terminate this Agreement and its obligations hereunder. The option to
terminate contained in this Section must be exercised by written notice to
Seller no later than ten (10) business days after Purchaser is notified by
Seller or others of the condemnation. If Purchaser exercises its option to
terminate in accordance with this Section, the Title Company shall return the
Xxxxxxx Money Deposit to Purchaser and neither party shall have any further
obligation hereunder. If Purchaser does not exercise its option to terminate as
provided in this Section,
(m:xx-xxxxx.xx 3/2-28-97)
10
the Agreement shall continue in full force and effect. In such event, the
Purchase Price shall be paid by Purchaser at Closing without reduction, but
Seller shall remit to Purchaser all awards received by Seller as a result of the
condemnation.
SECTION 15. DEFAULT AND REMEDIES. In the event of default by either party
under this Agreement, Purchaser and Seller agree as follows:
15.1 Default by Purchaser. If Purchaser shall default in the performance of
its obligations hereunder, Seller's sole and only remedy shall be to terminate
this Agreement and to retain the Xxxxxxx Money Deposit as liquidated damages.
15.2 Default by Seller If Seller shall default in the performance of its
obligations hereunder, Purchaser shall have the right to either (a) terminate
this Agreement and to obtain the return of the Xxxxxxx Money Deposit, or (b)
enforce this Agreement through an action for specific performance. Purchaser
hereby waives its right to recover damages from Seller, including without
limitation any loss of profits, consequential damages, punitive damages or any
other damages or losses suffered by Purchaser in connection with this Agreement.
SECTION 16. BROKERS. Seller represents and warrants to Purchaser that,
other than Highland Commercial Group, LLC, and Price Properties, Inc., f/k/a
Paragon-Price Commercial, Inc. (collectively, "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 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
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.
(m:bp-state.co3/2-28-97)
11
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:
State Bank & Trust of Colorado Springs
000 Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, President
with a copy in each case to:
Xxxxx XxXxxxx Xxxxxx & Xxxxx, llc
Plaza of the Rockies, Suite 202
111 South Tejon
Xxxxxxxx Xxxxxxx, Xx 00000
Attn: R. Xxx XxXxxxx
and to:
Berniger, Berg, Diver, Xxxxxxx & Xxxx-Xxxxx, LLC
Xxxxx 000
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
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.
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.
(m:bp-state.co3/2-28-97)
12
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 in this Agreement, the number of days allowed shall
refer to calendar and not business days If any day scheduled for performance of
any obligation hereunder shall occur on a weekend or holiday, the time period
allowed and day for performance shall be continued to the next business day.
18.8 Waivers. No waiver by either party of any provision hereof shall be
effective unless in writing or shall be deemed to be a waiver of any other
provision hereof or of any subsequent breach by either party of the same or any
other provision.
18.9 Attorneys' Fees and Costs. In the event of litigation between Seller
and Purchaser arising out of the enforcement of or a default under this
Agreement, the prevailing party shall be entitled to judgment for court costs
and reasonable attorneys' fees in an amount to be determined by the court.
18.10 Governing Law; Construction of Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
Seller and Purchaser and their respective counsel have reviewed, revised and
approved this Agreement. Accordingly, the normal rule of construction that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
18.11 Duration of Offer. Purchaser has executed and submitted this
Agreement to Seller as an offer for acceptance by Seller to be evidenced by
Seller s execution of this Agreement. Purchaser's offer as represented by this
Agreement shall continue in effect only until March 7, 1997. If Purchaser has
not received a copy of this Agreement executed by Seller on or before that date,
Purchaser's offer and this Agreement shall immediately terminate and shall no
longer be of any force or effect.
18.12 Purchaser's Board of Director's Approval. The purchase of the
Property shall remain subject to, and contingent upon, review and approval by
State Bank's Board of Directors and outside Legal Counsel, which shall be
obtained within three (3) business days of the Effective Date [March 6, 1997].
(m:bp-state.co3/2-28-97)
13
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:
State Bank & Trust of Colorado Springs
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Its: President
----------------------------
(m:bp-state.co3/2-28-97)
14
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 and Seller relating to the payment of a commission resulting from
the sale of the Property.
BROKER:
Highland Commercial Group, LLC
By:
---------------------------------
Its:
---------------------------------
Paragon Properties, Inc., f/k/a
Paragon-Price Commercial, Inc.
By:
----------------------------------
Its:
----------------------------------
(m:bp-state.co3/2-28-97)
15
EXHIBITS
to
Agreement for the Purchase
and Sale of Commercial Real Estate
Exhibit A Legal Description of Center
Exhibit B Concept Plan
Exhibit C Legal Description of Property
Exhibit D Escrow Agreement
(m:bp-state.co3/2-28-97)
EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Legal Description of Center
A PORTION OF THE NE1/4 SE1/4 OF SECTION 1, TOWNSHIP 14 SOUTH, RANGE 00 XXXX XX
XXX 0XX X.X., XXXX XX XXXXXXXX XXXXXXX, XXXXXX OF EL PASO, STATE OF COLORADO,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ASSUMING THE EASTERLY LINE OF THE
SE1/4 OF SAID SECTION 1 BEARS N 00 DEGREES 01'42" W, WITH THE NORTHEAST CORNER
AND THE SOUTHEAST CORNER OF SAID SE1/4 BEING 3/4 INCH ROD WITH NO CAPS
(APPROXIMATELY ONE FOOT BELOW ASPHALT); COMMENCING AT THE NORTHEAST CORNER OF
SAID SE1/4 OF SECTION 1; THENCE N 86 DEGREES 28'07" W, ALONG THE NORTHERLY LINE
OF SAID SE1/4, A DISTANCE OF 57.11 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF
POWERS BOULEVARD AS DESCRIBED IN BOOK 5256 AT PAGE 39 OF THE RECORDS OF EL PASO
COUNTY, COLORADO, POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE ALONG
SAID WESTERLY RIGHT-OF-WAY LINE, THE FOLLOWING FOUR (4) COURSES: (1) S 02
DEGREES 18'11" W, A DISTANCE OF 297.98 FEET; (2) S 00 DEGREES 00'17" E, A
DISTANCE OF 826.60 FEET; (3) ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A
CENTRAL ANGLE OF 89 DEGREES 30'40", A RADIUS OF 100.00 FEET, A DISTANCE OF
156.23 FEET (CHORD BEARS S 44 DEGREES 45'03" W); (4) S 00 DEGREES 38'51" W, A
DISTANCE OF 43.87 FEET TO THE NORTHERLY RIGHT-OF-WAY LINE OF XXXXXX PARK
BOULEVARD (100' R.O.W.) AS DESCRIBED IN BOOK 2501 AT PAGE 158 AND IN BOOK 2517
AT PAGE 730 OF SAID RECORDS; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY LINE OF
XXXXXX PARK BOULEVARD, THE FOLLOWING TWO (2) COURSES: (1) N 88 DEGREES 24'44" W,
A DISTANCE OF 814.03 FEET; (2) N 86 DEGREES 26'21" W, A DISTANCE OF 335.45 FEET
TO THE WESTERLY LINE OF PARCEL R AS DESCRIBED IN BOOK 3267 AT PAGE 406 OF SAID
RECORDS; THENCE ALONG SAID WESTERLY LINE AND NORTHERLY LINE OF SAID PARCEL R,
THE FOLLOWING NINE (9) COURSES: (1) N 00 DEGREES 05'34' W, A DISTANCE OF 54.41
FEET; (2) N 49 DEGREES 30'30" E, A DISTANCE OF 152.93 FEET; (3) ALONG THE ARC OF
A CURVE TO THE LEFT, HAVING A CENTRAL ANGLE OF 64 DEGREES 55'00", A RADIUS OF
171.50 FEET, A DISTANCE OF 194.31 FEET (CHORD BEARS N 17 DEGREES 03'00" E); (4)
N 15 DEGREES 24'30" W, A DISTANCE OF 123.42 FEET; (5) ALONG THE ARC OF A CURVE
TO THE RIGHT, HAVING A CENTRAL ANGLE OF 83 DEGREES 18' 25", A RADIUS OF 44.00
FEET, A DISTANCE OF 63.98 FEET (CHORD BEARS N 26 DEGREES 14' 42" E);' (6) N 67
DEGREES 53' 55" E, A DISTANCE OF 197.69 FEET; (7) ALONG THE ARC OF A CURVE TO
THE LEFT, HAVING A CENTRAL ANGLE OF 26 DEGREES 48' 16", A RADIUS OF 923.00 FEET,
A DISTANCE OF 431.80 FEET (CHORD BEARS N 54 DEGREES 29' 47" E); (8) N 41 DEGREES
05' 39" E, A DISTANCE OF 548.59 FEET TO THE NORTHERLY LINE OF SAID SE1/4 OF
SECTION 1; (9) S 86 DEGREES 28' 07" E, ALONG SAID NORTHERLY LINE, A DISTANCE OF
205.11 FEET TO THE POINT OF BEGINNING, EXCEPT THOSE PORTIONS THEREOF CONVEYED TO
THE CITY OF COLORADO SPRINGS IN DEED RECORDED IN BOOK 5545 AT PAGE 89 AND IN
BOOK 5842 AT PAGE 386.
17
[GRAPHIC
CONCEPT PLAN - PROPOSED COMMERCIAL CENTER
THE CROSSING AT XXXXXX PARK
OMITTED]
18
EXHIBIT C
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Legal Description of Property
Lot 2 as shown on the Concept Plan attached hereto as Exhibit A. Once
determined by the Survey, the legal description shall be attached hereto as
Exhibit C-1.
(m:bp-state.co3/2-28-97)
19
EXHIBIT D
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Escrow Agreement
THIS ESCROW AGREEMENT is executed this day of , 1997, by and among Xxxxxx
Powers, Ltd., a Colorado limited partnership ("Xxxxxx"), State Bank & Trust of
Colorado Springs ("State") and Lawyers Title Insurance Company ("Escrow Agent").
RECITALS
A. State and Xxxxxx entered into a certain Vacant Land/Farm and Ranch
Contract to Buy and Sell Real Estate dated March , 1997 (the "Contract"),
whereby Xxxxxx agreed to sell to State, and State 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 State'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 listed on Exhibit B have not
been completed or paid to xxxx ("On Sites") and some or all of the off site
improvements listed on Exhibit C have not been completed to date ("Off Sites").
However, the parties nonetheless desire to close the transaction provided for in
the Contract.
D. To ensure that the On Sites and Off sites will be completed and paid in
a timely manner, State 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 net amount of the Purchase Price payable to it at closing
("Funds").
E. The Closing shall be completed today, yet 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 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").
2. Disbursements to Xxxxxx.
a. The parties acknowledge that disbursements from the Account to
Xxxxxx shall be made with respect to the 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, subject to Subparagraph f. below, and any greater costs incurred for
that On Site shall be Xxxxxx'x sole responsibility;
(m:bp-state.co3/2-28-97)
20
b. Prior to any disbursements being made to Xxxxxx, Xxxxxx shall
designate in writing a development manager, and such development manager, or any
successor development manager designated 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
the type of On Sites for which work has been done, the extent to which each On
Site has been completed, the amount of payment (based on Exhibit B) that is
being demanded for each On Site, the total disbursement amount being requested
and whether the Certificate is a final disbursement request;
c. If during the term of this Escrow Agreement the amount requested by
Xxxxxx for an On Site exceeds the amount shown on Exhibit B, Escrow Agent shall
only disburse to Xxxxxx the amount designated on Exhibit B for that On Site;
d. After confirming that payments for any particular On Site 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 check from Escrow Agent and shall be made payable to Xxxxxx;
x. Xxxxxx shall only submit disbursement Certificates to Escrow Agent
on a bimonthly basis, 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;
f. If State delivers an affidavit to Escrow Agent asserting that one
or more of the Off Sites have not been completed by the date for completion set
forth in Exhibit C, then Escrow Agent shall immediately cease making On Site
disbursements to Xxxxxx. Disbursements for On Sites shall not recommence until
Escrow Agent shall have received a Certificate from the development manager,
stating that the delinquent Off Sites have been completed and that no other Off
Sites have become delinquent in the interim; and
g. If Xxxxxx installs all of the On Sites (rather than State) 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 - State's Completion. If all On Sites and Off Sites
have not been completed by , 1997, State 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 and Off Site Improvements, or by written agreement of Xxxxxx and
State.
5. Amendments. No changes or modifications shall be effected in the terms
of this Escrow Agreement except by written instrument signed by Xxxxxx and
State. Escrow Agent shall not be obligated to honor or act upon any
communications or notices received from Xxxxxx or State 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.
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 State as to such
performance. If Escrow Agent is unable to obtain such understanding, it may
(m:bp-state.co3/2-28-97)
21
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
State hereby agree for themselves to the jurisdiction of the District Court of
El Paso County, for the purposes of such an action.
8. Indemnification. State 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 all
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.
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:
------------------------------------------------
STATE BANK & TRUST OF COLORADO SPRINGS
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
By:
------------------------------------------------
LAWYERS TITLE INSURANCE COMPANY
000 Xxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
By:
------------------------------------------------
(m:bp-state.co3/2-28-97)
22
EXHIBIT A
LEGAL DESCRIPTION
LOT 2 AS SHOWN ON THE CONCEPT PLAN ATTACHED TO THE VACANT LAND/FARM AND RANCH
CONTRACT TO BUY AND SELL REAL ESTATE AND INCORPORATED HEREIN, CONTAINING 40,000
SQUARE FEET.
(m:bp-state. co3/2-28-97)
23
EXHIBIT B
ON SITE IMPROVEMENTS
ITEM AMOUNT
---- ------
(m:bp-state. co3/2-28-97)
24
EXHIBIT C
OFF SITE IMPROVEMENTS
ITEM COMPLETION DATE
---- ---------------
(m:bp-state.co3/2-28-97)
25
