Exhibit 10.13 Arizona/Colorado/New Mexico/Texas
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Vacant Land Acquisitions
AGREEMENT FOR SALE AND PURCHASE
(the "Agreement")
PURCHASER, CENTREFUND DEVELOPMENT (COLORADO) CORP., a Florida corporation,
hereby agrees to purchase and acquire from SELLER, Z-H, Ltd., a(n) Colorado
Limited Partnership, and SELLER hereby agrees to sell and convey to PURCHASER,
the real property located at the Southwest corner of the intersection of ▇▇▇▇▇▇
Park Boulevard and Powers Boulevard, in the City of Colorado Springs, County of
El Paso, State of Colorado, and being more particularly described on Schedule
"A" attached to this Agreement, together with the improvements, if any, located
thereon and the other items referred to in Paragraph 19 below and in Schedule
"B" hereto (collectively, the "Property"), at the Purchase Price of Four Million
Four Hundred Thousand AND NO/100 DOLLARS ($4,400,000.00), and upon the following
terms:
1. The Purchase Price shall be payable in the following manner:
(a) $25,000.00 by check in that amount to be deposited by Purchaser with
the Title Company (as defined below) within three (3) business days
following execution of this Agreement by both parties, said sum to be
held by the Title Company (as escrow agent) as an ▇▇▇▇▇▇▇ money
deposit pending completion or other termination of this Agreement and
to be applied towards the Purchase Price on Closing (as defined
below). The deposit shall be invested in an interest bearing account
or other investment vehicle directed by the Purchaser and interest
will be credited to Purchaser and applied against the Purchase Price
on Closing. Both the Seller and the Purchaser irrevocably direct the
Title Company to return the deposit and accrued interest to the
Purchaser immediately upon being notified by the Purchaser that this
Agreement has been terminated on or before the expiration of the
Investigation Period.
(b) $25,000.00 by check in that amount to be deposited by Purchaser with
Escrow Agent within three (3) business days following the expiration
of the Investigation Period, provided, however, that Purchaser shall
have elected, at or prior to the expiration of the Investigation
Period, to proceed forward with the acquisition of the Property in
accordance with the terms of this Agreement. The sum to be posted by
Purchaser with Escrow Agent in accordance with this Subparagraph 1(b)
shall be held by Escrow Agent as an ▇▇▇▇▇▇▇ money deposit pending
completion or other termination of this Agreement and shall be applied
towards the Purchase Price on Closing. The deposit referred to in this
Subparagraph 1(b) shall be invested in an interest bearing account or
other investment vehicle directed by the Purchaser and interest will
be credited to Purchaser and applied against the Purchase Price on
Closing.
(c) $25,000.00 by check in that amount to be deposited by Purchaser with
Escrow Agent on the 450th day following the Effective Date of this
Agreement, provided, however, that Purchaser shall have elected, at or
prior to the expiration of the Investigation Period, to proceed
forward with the acquisition of the Property in accordance with the
terms of this Agreement. The sum to be posted by Purchaser with Escrow
Agent in accordance with this Subparagraph 1(c) shall be held by
Escrow Agent as an ▇▇▇▇▇▇▇ money deposit pending completion or other
termination of this Agreement and shall be applied towards the
Purchase Price on Closing. The deposit referred to in this
Subparagraph 1(c) shall be invested in an interest bearing account or
other investment vehicle directed by the Purchaser and interest will
be credited to Purchaser and applied against the Purchase Price on
Closing.
(d) Intentionally Deleted.
(e) The balance of the Purchase Price will be payable at Closing either in
cash or in other immediate funds to Seller (or to the Title Company
for further delivery to the Seller), subject to the usual and
customary closing adjustments.
2. The Seller covenants to discharge and remove, at its own cost and expense,
on or before Closing, all mortgages, liens (except taxes for the current
year not yet due and payable and current installments of any special
assessments not yet due and payable, together hereinafter referred to as
"Current Taxes"), charges (except any obligations for the installation of
drainage improvements, hereinafter the "Drainage Obligations"), or
encumbrances whatsoever affecting the Property.
3. Unless an original or duplicate original of this Agreement, duly
countersigned by Seller, shall have been delivered to Purchaser prior to
5:00 p.m. on the 17th day of June, 1999 , this offer shall, at Purchaser's
option, be of no further force or effect (and any and all deposit[s]
theretofore posted by Purchaser in connection with this Agreement shall be
immediately refunded to Purchaser, together with accrued interest thereon,
if any). The "Effective Date" of this Agreement shall be the date upon
which Purchaser and the Title Company shall receive an original or
duplicate original of this Agreement which has been duly countersigned by
the Seller.
4. This transaction shall be completed at a closing (the "Closing") in the
office of the Title Company commencing at 10:00A.M. on the closing date
(the "Closing Date") specified in Schedule "B" hereto. Upon Closing, Seller
shall execute and deliver to Purchaser (or to the Title Company, if so
directed by Purchaser) a special warranty deed in proper recordable form,
conveying to Purchaser good and marketable title to the Property subject
only to such matters as may be permitted herein. Seller shall also execute
and deliver to Purchaser (or to the Title Company, if so directed by
Purchaser) a Non-Foreign Affidavit, in customary form, an Affidavit of
Value (if applicable) in form and content satisfactory to the Title Company
and sufficient to enable the special warranty deed to be duly registered on
title so as to effectively transfer and convey title to the Property to
Purchaser as herein required and such other documents, instruments and
agreements as are customarily required in the state in which the Property
is located in order to consummate and complete this transaction and to more
fully carry out the intent of the parties as contemplated herein. All
transfer, sales and other taxes payable in respect of the transaction
contemplated herein and/or in connection with the ownership and/or
operation of the Property prior to Closing shall be the responsibility of
and shall be payable by Seller. Upon Closing, vacant possession of the
Property (subject to existing tenancies, if any, disclosed to Purchaser
during the Investigation Period) shall be given to Purchaser. If the
Closing is scheduled for a day other than a business day (i.e., if such day
shall be a Saturday, Sunday or a statutory holiday in the state in which
the Property is located), Closing will take place on the next business day.
5. As more particularly set forth on Schedule "B" hereto, Purchaser shall have
the right to inspect the Property during the period (the "Investigation
Period") beginning on the Effective Date and ending Two Hundred Seventy
(270) days following the Delivery Date, as defined below, provided,
however, that if the last day of the Investigation Period shall be other
than a business day, the Investigation Period shall be extended until 11:59
p.m. on the next business day.
6. Within five (5) business days following the Effective Date, Seller shall
deliver to Purchaser, or cause to be delivered, an ALTA Form B or ALTA
Extended Coverage or Texas Form T-1 (as applicable) Title Insurance
Commitment as to the Property (providing, in each case, marketability
coverage), together with a true, complete and legible copy of all documents
and instruments listed as title exceptions therein (said commitment and
copies being hereinafter sometimes collectively referred to as the " Title
Commitment") issued by Chicago Title of Colorado, Inc. ("Title Company") in
the full amount of the Purchase Price. The date when Purchaser receives the
following, namely, the Title Commitment and "Documents" (as defined in
Schedule "B" hereto) shall be the "Delivery Date."
7. If within the time allowed in Paragraph 5 hereof Purchaser shall make
objection in writing to the condition of Seller's title, then Seller may
either (i) endeavor to cure or remedy same within thirty (30) days
thereafter, or (ii) notify Purchaser that Seller is unwilling to cure or
remedy same. If, unless required as set forth below, Seller shall be
unwilling to cure or remedy all objections to title, or if Seller shall be
unable to cure or remedy all such objections within said thirty (30) day
period, then, unless Purchaser shall agree to waive such uncured or
unremedied objections, this Agreement, notwithstanding any intermediate
acts or negotiations in respect of such objections, shall be at an end and
all deposit monies posted by Purchaser hereunder, together with all accrued
interest thereon shall be promptly refunded to Purchaser without deduction,
whereupon this Agreement shall terminate and neither party shall have any
further liability for any costs or damages. Anything in the foregoing to
the contrary notwithstanding, Seller shall be obligated to cure or
eliminate all title defects which are susceptible of discharge by the
payment of money which is fixed, definite or readily ascertainable in
amount (e.g., mortgages, liens, judgments, delinquent taxes, etc., but
excepting Current Taxes and the Drainage Obligations). Any exceptions to
title set forth in the Title Commitment as to which Purchaser shall not
have made written objection within the time period noted above, or which
are waived by Purchaser , shall be conclusively deemed to be "Permitted
Exceptions" which have been accepted by Purchaser. At Closing, Seller shall
pay for, and caused to be delivered to Purchaser, an ALTA Form B or ALTA
Extended Coverage or Texas Form T-1 (as applicable) Title Insurance Policy
(providing, in each case, [if applicable] marketability coverage) in the
amount of the Purchase Price, issued by the Title Company, insuring fee
simple title to the Property in the name of Purchaser subject only to the
Permitted Exceptions (and with the standard preprinted exceptions deleted,
provided that a current survey of the Property sufficient for such purpose
shall have been furnished to the Title Company and Purchaser pays any
additional premium for such deletions), and containing such endorsements as
Purchaser may reasonably request, it being understood and agree that
Purchaser shall be obligated to pay the cost of any additional endorsements
i.e., if Purchaser shall elect to obtain same.
8. Within five (5) business days following the Effective Date of this
Agreement, Seller shall deliver to the Purchaser and the Title Company, a
copy of all existing surveys of the Property which are within Seller's
possession or control. Prior to the expiration of the Investigation Period,
Purchaser, at its option and expense, may obtain a currently dated ALTA (or
other) survey of the Property (the "Survey"), certified to the Purchaser
and to other parties designated by Purchaser, showing thereon, at
Purchaser's option, the location of all buildings, improvements, easements,
rights-of-way and other similar entitlements, and, if requested by
Purchaser at its option, containing, at Purchaser's option (and to the
extent applicable) the information described in Items 1-16 of Table A of
the ALTA/ACSM (1997) requirements. Any encroachment by or onto adjoining
properties, overlap and/or other condition disclosed by such Survey which
may affect marketability of the title to the Property shall be deemed to
constitute a title defect which shall be handled in the manner set forth in
Paragraph 7 above, provided that any notice of title defect is given within
the period allowed by Paragraph 7. Prior to the expiration of the
Investigation Period, Purchaser, at its option and expense, may obtain a
currently dated Phase One Environmental Audit Report relating to the
Property, such report to be certified to Purchaser and to other parties
designated by Purchaser.
9. The current installment of any and all special assessments and/or local
improvement charges levied or assessed by any county, municipality or
quasi-governmental entity shall be apportioned at Closing. Until the
Closing, Seller shall cause the tenant pursuant to the Lease (as
hereinafter defined) to maintain all insurance coverages required by the
Lease, and if the Lease terminates, Seller shall maintain in full force and
effect casualty and liability insurance in respect of the Property
(casualty insurance to provide full replacement value coverage for all
buildings and other improvements upon the Property). Property taxes for the
year of the Closing shall be prorated through the day before the Closing
Date. If the actual property tax and/or assessment ▇▇▇▇ for the year of
Closing is not available at Closing, the proration for property taxes
and/or assessments shall be based upon the most recent years' tax and/or
assessment bills and shall be readjusted by Seller and Purchaser within
thirty (30) days following the receipt of the actual tax and/or assessment
bills for the year of Closing. This obligation shall survive the Closing
and the delivery of the deed hereunder.
10. Purchaser may at any time prior to Closing assign this Agreement to another
entity in which Purchaser's parent company holds a majority interest and
upon such assignment, this Agreement shall in all respects be construed as
if made in the first instance by the assignee and the Purchaser herein
shall have no further obligations whatsoever.
11. In the event of default by Purchaser hereunder, Seller acknowledges and
agrees that its sole remedy shall be to receive the ▇▇▇▇▇▇▇ money deposit
as liquidated damages, and not as a penalty, in full satisfaction of any
and all duties, liabilities and/or obligations on the part of Purchaser
hereunder, the parties hereby agreeing that said amount is a reasonable
forecast of just compensation for the harm that may be caused Seller as a
result of Purchaser's failure to consummate the transaction contemplated
hereby and that Seller's harm in the event of Purchaser's failure to
consummate the transaction contemplated hereby would be incapable of
accurate estimation or very difficult to accurately estimate.
12. [Intentionally Deleted].
13. Any condition herein which is intended to be for the benefit of the
Purchaser may be waived by the Purchaser in part or in full.
14. Seller and Purchaser agree that this Agreement, including the annexed
Schedules (and exhibits, if any), constitutes the entire agreement between
them and that there is no condition, collateral agreement, or
representation or warranty of any kind, express or implied, except as may
be specifically stipulated hereunder. All covenants, representations and
warranties herein shall survive Closing. All Schedules and exhibits
attached to this Agreement shall have the same force and effect as if the
information contained therein was contained in the body of this Agreement.
15. Any notice hereunder shall be in writing, delivered either personally or by
prepaid registered mail or by facsimile by or to the other party, at its
last known mailing address or facsimile number, as the case may be.
16. This Agreement shall be read with all changes of gender or number required
by the context. The words "herein", "hereunder" or similar expressions used
in any paragraph of this Agreement relate to the whole of this Agreement,
including the annexed Schedules (and exhibits, if any) unless otherwise
provided.
17. Seller shall be solely responsible for the payment of any and all brokerage
commissions and/or finder's fees which may be due Highland Commercial
Group, LLC and its representative, ▇▇▇ ▇▇▇▇▇▇▇▇ in connection with the
purchase and sale of the Property. Seller and Purchaser shall indemnify and
hold each other harmless from any other claims for brokerage commissions
and/or finder's fees in connection with the purchase and sale of the
Property to the extent claimed to be due and owing as a result of the acts
of, or dealings with, the indemnifying party.
18. During the pendency of this Agreement, and except as may be required in
connection with the creation of the roadway to be located in the westerly
portion of the Property (as contemplated in Paragraph 4 of the Second
Addendum to this Agreement) or in connection with the pending Condemnation
proceeding (as described in Paragraph 3 of the Second Addendum), Seller
shall not grant or enter into any easement, right of way, lien, lease or
license or any instrument or agreement which encumbers or otherwise affects
title to the Property, or the use, possession or enjoyment thereof, without
the prior written consent of Purchaser, which consent may be granted or
withheld by Purchaser in its reasonable discretion.
19. The term "Property" as used herein shall include all rights and all
appurtenances to or used in connection with the real property described on
Schedule A attached hereto, including without limitation, all rights, title
and interests of Seller, if any, in: (a) all minerals, oil, gas and other
hydrocarbon substances on and under the real property, if any; (b) all
development rights, air rights, water, water rights and water stock
relating to the real property, if any; (c) all rights to any land lying in
the bed of any existing dedicated street, road or alley adjoining the real
property, if any; (d) all strips and gores adjoining the real property, if
any; (e) all other easements, rights of way or appurtenances used in
connection with the beneficial use and enjoyment of the real property, if
any; and (f) all improvements, located on, appurtenant to or used in
connection with the real property.
20. Seller and Purchaser agree that this Agreement and transaction contemplated
herein shall remain confidential and that no public announcement will be
made in respect thereof, prior to closing, except as may be required by
applicable laws, without the agreement of both parties. Seller further
agrees that Seller will not, at any time prior to the termination of this
Agreement, accept an offer to purchase from (conditional or unconditional)
nor otherwise negotiate with any third party relating to the sale or
acquisition of the Property, whether or not same is contingent upon the
completion of this transaction by the Seller and Purchaser.
21. In the event of any litigation arising out of or in connection with this
Agreement, the prevailing party shall be awarded reasonable attorneys fees,
costs and expenses. This Agreement shall be governed and construed in
accordance with the laws of the state in which the Property is located.
22. This Agreement shall constitute Seller's and Purchaser's escrow
instructions to the Title Company.
(The remainder of this page intentionally left blank)
SCHEDULE "A" (legal description) and SCHEDULE "B" (Additional Provisions)
attached hereto form part of this Agreement .
DATED at Greenwood Village, Colorado this 15th day of June, 1999.
Purchaser
CENTREFUND DEVELOPMENT (COLORADO) CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Director of Development & Acquisitions
THE UNDERSIGNED accepts the above offer and agrees to sell and convey the
Property upon the terms and conditions set forth herein.
DATED at Greenwood Village this 15th day of June, 1999.
Seller
Z-H, Ltd., a Colorado Limited Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Partner
Chicago Title of Colorado, Inc. (the "Title Company") hereby accepts the
foregoing Agreement for Sale and Purchase, hereby agrees to act as Escrow Agent
hereunder, and hereby agrees to comply with the provisions of Section 6045 of
the Internal Revenue Code with respect to the transactions contemplated hereby.
Chicago Title of Colorado, Inc.
By: /s/ ▇. ▇. ▇▇▇▇▇
Its: Account Rep.
ADDRESSES AND FACSIMILE NUMBERS FOR NOTICES
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Seller's Address and Facsimile Number Purchaser's Addresses and Facsimile Numbers
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Z-H, Ltd., a Colorado Limited Partnership Centrefund Development (Colorado) Corp.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ Trail North
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
With a copy to: with copies to:
▇▇▇ ▇▇▇▇▇▇▇, Esq. Centrefund Development (Colorado) Corp.
Flynn, McKenna, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
And
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Title Company's Address and Facsimile Number ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Chicago Title of Colorado, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
1875 ▇▇▇▇▇▇▇▇ Street, Suite 1200 Palm Beach Gardens, Florida 33410
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (303) -
and
Centrefund Development (Colorado) Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT "A"
Legal Description of Property
▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of El
Paso, Colorado.
SCHEDULE "B"
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Additional Provisions (For Vacant Land Acquisitions)
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ADDENDUM
THIS ADDENDUM IS ANNEXED TO AND FORMS A PART OF THAT CERTAIN AGREEMENT FOR SALE
AND PURCHASE DATED AS OF THE 15th DAY OF JUNE, 1999 BY AND BETWEEN Z-H, LTD., A
COLORADO LIMITED PARTNERSHIP, AS SELLER, AND CENTREFUND DEVELOPMENT (COLORADO)
CORP., AS PURCHASER.
1. Addendum takes precedence. In the event of any conflict between the
terms and provisions of this Addendum and the terms and provisions of the
Agreement for Sale and Purchase to which this Addendum is annexed, the terms and
provisions of this Addendum shall take precedence and control. As used herein,
the term "Agreement" shall be deemed to mean and refer to the aforementioned
Agreement for Sale and Purchase, as modified and supplemented by this Addendum.
Unless otherwise indicated, capitalized terms used herein shall have the
meanings, respectively, ascribed to them in said Agreement for Sale and
Purchase.
2. Investigation Period.
A. Subject to the approval by the Tenant (the "Tenant's Approval")
pursuant to the Lease (as hereinafter defined), which approval Seller will
diligently and with its good faith efforts pursue, Purchaser shall have the
right during the Investigation Period to conduct all requisite (as determined by
Purchaser) investigations as to the Property and all factors concerning same and
to perform, conduct and/or obtain all tests, studies, feasibility studies,
examinations and other reasonable activities as Purchaser may deem necessary or
desirable in order to underwrite Purchaser's proposed acquisition of the
Property and to determine, among other things, the suitability of the Property
for development and use in the manner contemplated by Purchaser, the economic
feasibility of such development and use, and the availability of all necessary
governmental and other permits, approvals, consents and licenses. [The foregoing
activities, etc. are hereinafter sometimes collectively referred to as
"Purchaser's Permitted Activities"]. For the purpose of conducting and
performing Purchaser's Permitted Activities, Purchaser and its employees,
agents, and independent contractors shall have the right and license, both
during and after the Investigation Period (but subject to the Tenant's Approval
to enter onto the Property and to discuss the Property and Purchaser's proposed
acquisition, development and use thereof with any and all persons and/or
entities (including any and all governmental and/or quasi-governmental agencies,
bodies and officials) deemed appropriate by Purchaser. Purchaser shall carry out
Purchaser's Permitted Activities at its sole expense and shall repair any
physical damage to the Property that may be caused as a result thereof.
Additionally, Purchaser shall indemnify, defend and save and hold Seller
harmless of, from and against any and all losses, costs, expenses (including
reasonable attorneys fees and court costs at all levels of proceedings) and
liabilities which arise from any such entry or work upon the Property. In the
event that, within 90 days following the Effective Date, Seller is unable to
secure any Tenant's Approval that may be required pursuant the Lease to permit
Purchaser's Permitted Activities, it shall so notify the Purchaser, and
Purchaser may within 30 days after receipt of such notice, elect to terminate
this Agreement by written notice to Seller. In the event Purchaser elects to
terminate this Agreement, its ▇▇▇▇▇▇▇ Money Deposit, together with any interest
earned thereon, shall be returned to it and this Agreement shall thereafter be
null and void.
B. This Agreement shall be deemed to have been automatically
terminated, and Purchaser shall be entitled to receive an immediate refund of
all sums deposited by it hereunder, together with all accrued interest thereon,
and each party hereto shall be relieved of and from all liability and obligation
to the other hereunder, unless Purchaser shall have notified Seller in writing
at or prior to the expiration of the Investigation Period, that Purchaser is
satisfied with the results of its investigations as to the Property and that
Purchaser has elected to proceed forward with the acquisition of the Property.
C. Seller agrees to cooperate fully with Purchaser, at no cost to
Seller, in connection with the conduct by Purchaser of Purchaser's Permitted
Activities and in connection with the efforts of Purchaser to satisfy the
Special Conditions referred to in Paragraph 3 below. To this end, Seller agrees
that it shall (i) within not more than five (5) business days following request
therefor execute and deliver to Purchaser any and all documents, instruments,
applications or the like as may be required by Purchaser in connection
therewith, and (ii) use its good faith to assist Purchaser in securing all
consents, permits, approvals, and the like as shall be necessary or desirable in
connection with the proposed development and use of the Property in the manner
contemplated by Purchaser, provided, however, that no consents, permits,
approvals or the like shall become final and binding upon the Property until
Closing shall have occurred and title to the Property is vested in Purchaser.
D. Within five (5) business days following the execution of this
Agreement by the parties, Seller shall deliver to Purchaser full and complete
copies of the following items (the "Documents"): all surveys, studies, test
reports, permits, approvals, licenses and other data, documentation and
information relating to the Property which are in Seller's possession or control
or which are in the possession or control of Seller's agents, employees and/or
professionals.
3. Special Conditions. Purchaser's obligations in respect of the
transaction contemplated herein are and shall also be subject to and contingent
upon the satisfaction (or written waiver by Purchaser) of the following special
condition(s):
A. that within Two Hundred Forty ( 240 ) days following the expiration
of the Investigation Period, Purchaser shall have entered into satisfactory (as
determined by Purchaser in its absolute discretion) leasing or other
arrangements with at least one tenant or other occupant of Purchaser's proposed
development.
B. that within Two Hundred Forty ( 240 ) days following the expiration
of the Investigation Period, Purchaser shall have received final site plan and
development plan approval and all access and other permits (other than building
permits for vertical construction), consents, licenses, authorizations,
approvals and the like from all applicable governmental and quasi-governmental
agencies, bodies, and officials having jurisdiction over the Property which
Purchaser shall deem necessary and/or appropriate (hereinafter the "Governmental
Approvals") in order to enable Purchaser, immediately following the closing of
title to the Property, to commence full development and use of the Property in
the manner described contemplated by Purchaser, to wit: as a retail shopping
center containing not less than 307,200 square feet of gross leasable floor
space, together with all related appurtenances and amenities. Anything in the
foregoing to the contrary notwithstanding, no Governmental Approval shall become
final and binding upon the Property until Closing shall have occurred and title
to the Property is vested in Purchaser.
4. Closing Date. If this Agreement shall not previously have been
terminated pursuant to any other provision hereof, then the transaction
contemplated herein shall be closed and the Deed and other closing papers shall
be delivered on the date (the "Closing Date") which shall be the 1st day of
November, 2000, or such earlier date as the parties may mutually agree. If any
of the general conditions precedent set forth in Paragraph 6 below shall not
have been satisfied by the Closing Date determined in accordance with the
preceding sentence, then Purchaser shall be entitled to elect, by written notice
delivered to Seller prior to the such date, either: (i) [intentionally deleted];
or (ii) to terminate this Agreement, in which event, all sums deposited by
Purchaser hereunder, together with all interest accrued thereon, shall be
immediately refunded to Purchaser; or (iii) to waive the requirement of
satisfaction of the outstanding condition(s) precedent and proceed to close this
transaction in accordance with the other terms of this Agreement; and/or (iv) in
the event that the failure of any general condition precedent set forth in
Paragraph 6 below shall also constitute a default by Seller under this
Agreement, to treat the same as a default and pursue all legal and equitable
remedies available to Purchaser, provided, however, that in no event shall
Seller be liable for damages in an amount in excess of $75,000.00, and in the
event that Seller is ordered to disgorge the net proceeds from a sale or
transfer of the Property, such additional sums as may be required to effect such
order.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser as follows:
A. Authority of Seller. Seller is the owner of the Property subject to
the provisions of the Lease and has the right, power and authority to enter into
this Agreement and to sell and convey the Property to Purchaser in accordance
with the terms and conditions hereof.
B. [Intentionally Deleted]
C. No Moratorium. Except as is otherwise set forth in this Agreement,
Seller has received no notice and has no actual knowledge of any existing or
threatened moratorium or of any other fact which would or might adversely affect
or prohibit the Property from being developed and used in the manner
contemplated by Purchaser or which would or might increase, in any material
respect, the costs associated with such development and/or use of the Property.
D. No Violations. Seller has received no notice and has no actual
knowledge of any violation of any law, regulation, ordinance or deed restriction
which relates to the Property.
E. No Contracts or Commitments. Except as is otherwise set forth in
this Agreement or disclosed in the Title Commitment, there are no outstanding
contracts, agreements, commitments or obligations of any nature between Seller
and any federal, state, regional, local or other governmental, administrative or
quasi-governmental body or agency or between Seller and any other person or
entity which do or may affect or bind the Property, the development and/or use
thereof, or any subsequent owner or developer of the Property, nor does Seller
have any knowledge of any such contract, agreement, commitment or obligation
which may have been entered into or undertaken by others.
F. No Hazardous Waste. To Seller's actual knowledge, no toxic and/or
hazardous wastes, as defined by Federal and/or by the laws of state in which the
Property is located, have been used or stored in, on, under or about the
Property, and, to Seller's knowledge, neither the Property nor any lands
adjacent thereto is contaminated by any such toxic or hazardous materials. The
Property is not presently being used, and to Seller's actual knowledge, neither
the Property nor any lands adjacent thereto has in the past been used, for the
handling, storage, manufacturing, refining, transportation or disposal of "Toxic
Material", "Hazardous Substances" and "Hazardous Waste", including, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials,
defined in the Comprehensive Environmental Response, Compensation, Liability Act
of 1980, as amended (42 U.S.C. ss.960 et seq.) the Hazardous Materials
Transportation Act, as amended (42 U.S.C. ss.1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ss.9601 et seq.), the
regulations adopted and publications promulgated pursuant to the foregoing and
any other federal, state or local environmental law, ordinance, rule or
regulation.
Seller has not received any summons, citation, directive, letter or
other communication, written or oral, from any Governmental Authority (a)
indicating that the Property is or has been the site of any oil, hazardous
waste, or other toxic substance activity or storage, or (b) concerning any
intentional or unintentional action or omission on Seller's part which has
resulted in the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of "Toxic Material", "Hazardous Substances" or "Hazardous
Waste" into waters or onto lands of the state in which the Property is located
or into waters outside the jurisdiction of such state where damage may have
resulted in the lands, waters, fish, shellfish, wildlife, air and other
resources owned, managed, held in trust or otherwise controlled by such state.
G. No Litigation, Etc. Except as otherwise set forth in this Agreement
or in the Title Commitment, no action, litigation, proceeding (including,
without limiting the generality of the foregoing, any condemnation or eminent
domain proceedings or any plan or action to widen, close or otherwise materially
modify any means of access to, or public street adjacent to, the Property) or
investigation is pending or, to the knowledge of Seller, threatened against or
relating to the Property or any part thereof.
H. No Assessments, Etc. Except as otherwise set forth in this
Agreement or in the Title Commitment or as may be levied or assessed by the
special districts currently in place, Seller has received no notice and has no
actual knowledge that any governmental or quasi-governmental agency or authority
intends to impose or has imposed any special or other assessment against the
Property or any part thereof in connection with any special or off-site
improvement which might affect the Property or the use or development thereof or
otherwise.
I. Condition of Property; Disclaimer of Warranties. Purchaser
acknowledges and agrees that, except as set forth in this Agreement, 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 (a) the value,
nature, quality or condition of the Property, including, without limitation, the
water, soil and geology; (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 conduct thereon; or, (d) 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.
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
Addendum, or as set forth elsewhere in the Agreement
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, other
than that Seller has no actual knowledge that any of such information is false,
incomplete or misleading.
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.
Purchaser further acknowledges and agrees that to the maximum extent
permitted by law, and except as otherwise provided herein, the sale of the
Property as provided for herein is made on an "AS IS" condition and basis with
all faults.
The Colorado Department of Health and the U. S. Environmental
Protection Agency ("EPA") have detected elevated levels of naturally occurring
radon in structures in the Colorado Springs area. EPA has raised concerns with
respect to adverse effects on human health of long-term exposure to high levels
of radon. Purchaser may conduct radon tests to determine the possible presence
of radon in the Property and may conduct such other investigations and consult
such experts as Purchaser deems appropriate to evaluate radon mitigation
measures that can be employed in the design and construction of improvements on
the Property. Purchaser shall rely solely upon such investigations and
consultations and acknowledges that Seller has made no representation, express
or implied, concerning the presence or absence of radon in the property, the
suitability of the Property for development or the design or construction
techniques, if any, that can be employed to reduce any radon levels in
improvements built on the Property.
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.
Unless Seller shall give prior written notice to Purchaser of the
occurrence of an event subsequent to the date this Agreement is signed by
Seller, that makes any of the foregoing representations untrue or incorrect (an
"Event Notice"), the foregoing representations of Seller shall be true and
correct in all material respects as of the Closing Date as if restated on that
date and shall survive the closing of the transaction contemplated herein for a
period of 12 months. Should the Seller give Purchaser an Event Notice, Purchaser
shall have a period of thirty (30) days thereafter to conduct an investigation
(the "Event Investigation") of the impact of the occurrence of such event on its
purchase and intended use of the Property, and should it determine, in its sole
discretion, that such event has a material adverse effect, Purchaser may elect
to terminate this Agreement by giving written notice to Seller within seven (7)
days following the end of such thirty (30) day period. In the event Purchaser
elects to terminate this Agreement, its ▇▇▇▇▇▇▇ Money Deposit, together with any
interest earned thereon, shall be returned to it and this Agreement shall
thereafter be null and void. If necessary, the Closing shall be automatically
extended to accommodate the time periods provided for in this paragraph.
6. General Conditions Precedent to Purchaser's Obligations. Purchaser's
obligations in respect of the transaction contemplated herein are and shall be
subject to and contingent upon the satisfaction (or written waiver by Purchaser)
at or prior to the closing of title to the Property of each and all of the
following general conditions:
A. The representations of Seller as set forth above shall be true and
correct in all material respects as of the date of the closing as if restated on
that date.
B. Seller shall have duly performed all of the obligations on its part
to be performed hereunder.
C. There shall be no existing or threatened moratorium or other fact
or circumstance (e.g., restrictions, hazardous waste, absence of utilities,
etc.) which might prohibit, postpone, interfere with or otherwise adversely
affect the development and/or use of the Property in the manner contemplated by
Purchaser or which might increase, in any material respect, the costs associated
with such development and/or use.
D. There shall be no violation of any law, regulation, ordinance or
deed restriction affecting or relating to the Property which would or might
adversely affect the development or use of the Property in the manner
contemplated by Purchaser or which would or might increase, in any material
respect, the costs associated with such development and/or use.
E. Except for the Lease and its termination as is contemplated by
Paragraph 6 of the Second Addendum, Seller shall be in full and exclusive
possession of all of the Property, and no other person, firm or entity shall
have any right to acquire, lease, occupy or otherwise have or be in possession
of any portion thereof.
F. [Intentionally Deleted].
G. Between the Effective Date of this Agreement and the date of the
Closing, there shall have been no changes in the requirements of the applicable
planning, zoning, land development and/or building codes which would postpone,
prevent, impair or otherwise interfere with the development and/or use of the
Subject Project as contemplated by Purchaser or which might render such
development and/or use more expensive than would be the case absent such
change(s).
7. Signage. At any time following the Effective Date of this Agreement, but
subject to the approval of the Tenant pursuant to the Lease (which approval the
Seller shall use diligence and its good faith efforts to obtain not later than
90 days following the Effective Date), Purchaser shall be entitled, at
Purchaser's expense, and subject to receipt by Purchaser of all necessary
permits, to place development and/or leasing signs on the Property at
location(s) to be designated by Purchaser.
8. Intentionally Deleted.
9. Intentionally Deleted.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Addendum as of
the day and year first above written.
Signed, sealed and delivered SELLER:
in the presence of:
Z-H, LTD., A COLORADO LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
PRINT NAME OF WITNESS BELOW: Its General Partner
- - - - - - - - - - - - - - - -
And By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PRINT NAME OF WITNESS BELOW: Its General Partner
- - - - - - - - - - - - - - - -
Date: June 15, 1999
PURCHASER:
CENTREFUND DEVELOPMENT (COLORADO) CORP.,
PRINT NAME OF WITNESS BELOW: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
- - - - - - - - - - - - - - - - Director of Development & Acquisitions
Date: June 15, 1999
PRINT NAME OF WITNESS BELOW:
- - - - - - - - - - - - - - - -
Second Addendum
This Second Addendum is annexed to and forms a part of that certain
Agreement for Sale and Purchase between Z-H, Ltd., a Colorado Limited
Partnership ("Seller") and Centrefund Development (Colorado) Corp. ("Purchaser")
1. Second Addendum Takes Precedence. In the event of any conflict between
the terms and provisions of this Second Addendum and the terms and provisions of
the Agreement for Sale and Purchase referred to above (as heretofore
supplemented and amended), the terms and provisions of this Second Addendum
shall take precedence and control. Unless the context requires otherwise, the
term "Agreement" as used herein shall be deemed to mean and refer to the
aforementioned Agreement for Sale and Purchase, as heretofore supplemented and
amended, and as further supplemented, modified and amended pursuant to the terms
and provisions of this Second Addendum.
2. General Statement of Facts.
A. When Seller originally caused the Property to be platted as a
single lot in accordance with the ordinances of the City of Colorado
Springs, Colorado ("City"), the City imposed on the Property the obligation
to install drainage improvements (the "Drainage Improvements") to the Sand
Creek drainage channel that is located within the Property, on its west
side. To assure the City that the Drainage Improvements would be installed,
Seller posted and has maintained with the City a standby letter of credit
(the "Letter of Credit"), the current amount of which is $261,747.20.
B. The Property is encumbered by a Deed of Trust recorded at Book 6670
at Page 1361 of the Records of the Clerk and Recorder of El Paso County,
Colorado (the "Deed of Trust"). The Deed of Trust secures a promissory note
in the original face amount of $466,000, the present holder of which is the
Small Business Administration.
C. The Property is leased pursuant to a "Ground Lease" (the "Lease")
dated October 21, 1997, in which Seller is the "Landlord" and Metrogolf
Incorporated is the original "Tenant", Metrogolf Incorporated's rights
pursuant to the Lease having been assigned to Family Golf Centers, Inc.
Purchaser has been provided with a copy of the Lease to review prior to its
execution of this Agreement.
D. Seller is related to an entity, ▇▇▇▇▇▇ Powers, Ltd., a Colorado
limited partnership ("▇▇▇▇▇▇ ▇▇▇▇▇▇"), which owns both the adjacent tract
of land from the south of the Property to Galley Road (the "Southern
Tract"), and other property to the north of the Property across ▇▇▇▇▇▇ Park
Boulevard (the "Northern Tract"). The Seller and ▇▇▇▇▇▇ ▇▇▇▇▇▇ are both
involved in a condemnation proceeding (the "Condemnation") instituted by
the City of Colorado Springs, Colorado ("City"), in which the City seeks to
condemn a permanent easement for a sewer line approximately 20 foot wide,
and during the course of construction, an additional construction easement
(together, the "Easement"), from Galley Road on the south end of the
Southern Tract through the Southern Tract, the Property and the Northern
Tract to the north end of the Northern Tract. Seller has fully advised
Purchaser of the Condemnation, and the location of Easement on the
Property. Because the City has the power of eminent domain in the
Condemnation, the likely outcome is that the City will acquire the Easement
and either pay monetary compensation to the owners of the property affected
by the taking of the Easement or in lieu of monetary compensation, agree to
install drainage or road improvements that would otherwise be the
obligations of the owners.
E. In order to provide access to the Southern Tract from ▇▇▇▇▇▇ Park
Boulevard and access to the Property from Galley Road, a road (the "City
Street") must be constructed, the proposed location of which is generally
along the western side of both the Property and the Southern Tract,
adjacent to the Easement. The parties contemplate that the proposed City
Street shall be dedicated or conveyed to the City, and will therefore be
required to be constructed in a manner that will meet all City ordinances
and requirements.
3. Condemnation.
A. Definitions: For purposes of this Agreement, the following
definitions shall apply:
"Taking" shall mean the transfer of any easement affecting the
Property to the City as a result of the Condemnation.
"Monetary Payment" shall mean the amount of the funds payable as
compensation for the Taking.
"Improvements Agreement" shall mean any agreement reached with the
City as a negotiated settlement of the Condemnation in which the City
agrees, in lieu of all or any part of a Monetary Payment, to install
improvements on the Property as compensation for the Taking. Any
Improvements Agreement shall describe the improvements to be installed on
the Property by the City, and the time by which such improvements must be
completed.
"Attributed Value" shall mean (a) the value of the improvements to be
installed by the City as set forth in the Improvements Agreement, or, if no
such value is established in the Improvements Agreement, then (b) the value
of such improvements as established by a bid for the construction of such
improvements made by a contractor mutually selected by Seller and
Purchaser.
B. Prior to End of Investigation Period. Prior to the end of the
Investigation Period, the Seller shall be solely responsible for all the
negotiations with the City with respect to the Condemnation, and if
litigation arises out to the Condemnation, for prosecution of the
Condemnation proceeding as it may affect the Property. If, during the
Investigation Period, the Condemnation is concluded, whether by negotiated
settlement or litigation, Purchaser may review the results and if it is
dissatisfied (in its own unfettered discretion) with such results,
Purchaser may elect to terminate this Agreement by written notice to
Seller, and upon such notice being given, the Title Company shall return to
Purchaser its ▇▇▇▇▇▇▇ Money Deposit and any interest accrued thereon, and
this Agreement shall thereafter be null and void.
C. Prior to Closing. If the Condemnation proceeding is not concluded
prior to the end of the Investigation Period, and if Purchaser has not
elected to terminate this Agreement, then Purchaser shall be entitled to
participate, at Purchaser's cost, in the proceedings associated with such
Condemnation and taking and in any negotiations relating to any possible
settlement thereof. Seller agrees not to enter into any settlement of such
proceedings without Purchaser's prior written consent, such consent not to
be unreasonably withheld. The parties acknowledge that the SBA, pursuant to
the Deed of Trust, and the Tenant, pursuant to the Lease, have certain
approval rights with respect to any resolution of the Condemnation, and
agree to cooperate fully with one another to secure to approval of the SBA
and Tenant to any resolution of the Condemnation which the parties have
agreed upon.
D. Following Closing. If an award or settlement in the Condemnation
proceeding shall not have been fixed or agreed upon prior to Closing, then
Seller shall, at Closing, assign to Purchaser all of its rights, title and
interest in and to the award and/or settlement payable in respect of the
Property, and Purchaser shall thereupon be entitled to pursue its own
separate claim in such proceedings, provided, however, that out of any
award or settlement Purchaser may obtain, Purchaser shall reimburse Seller
for any costs and expenses it incurred with respect to the Condemnation
proceeding, not to exceed twenty-five percent (25%) of the amount of such
award or settlement.
E. Allocation of Award Among Owners. Any Monetary Payment which shall
be disbursed prior to Closing or which shall be fixed or agreed upon prior
to Closing, but payable thereafter, or any Attributed Value that shall have
been fixed prior to Closing, shall, if not already allocated specifically
to the Property by the award or settlement, be allocated among the then
owners of the Southern Tract, the Property and the Northern Tract on an
equitable basis, taking into account the relative values of the affected
properties, as determined by independent appraisal.
F. Credit to Purchaser. If the Condemnation has been resolved prior to
Closing, Purchaser shall be entitled to a net credit at Closing (i.e.,
amount of Monetary Payment or Attributed Value, less reasonable attorneys
fees and other direct costs incurred by Seller in connection with the
condemnation proceedings - such attorneys fees and direct costs to be
limited to a maximum of 25% of the Monetary Payment or Attributed Value)
for its share of such award or settlement.
4. Construction of Roadway. Within seven (7) days following Seller's
receipt of each of the items noted below, but not less than forty-five (45) days
prior to the end of the Investigation Period, Seller shall deliver to Purchaser
the following (the "Road Documentation): (a) information with respect to the
location, width, curb cuts and associated easements for that portion of the City
Street that is to be located on the Property (the "Road"), all of which shall be
in accordance with applicable City ordinances and rules and shall reflect a
location described in Paragraph 2E of this Second Addendum, and, (b) if Seller
is to install the Road, (y) the identity and qualifications of the contractor
Seller proposes to engage to perform the work of construction of the Road (the
"Road Work"), and (z) a construction budget for the Road Work, prepared by
Seller acting in good faith and based on a preliminary bid from such contractor
(the "Road Work Budget"). In the event that Purchaser shall have any reasonable
objection to any of the Road Documentation, it shall so notify Seller in writing
within Thirty (30) days after its receipt of the Road Documentation (the
"Objection Period"), specifying its objections and its suggested remedy.
Purchaser shall be deemed to have waived any objection it may have unless a
written notice thereof is given within the Objection Period. If such notice is
received by Seller as set forth above, and if Seller and Purchaser have not
agreed in writing to a settlement thereof on or before five (5) days prior to
the end of the Investigation Period, this Agreement shall terminate on the last
day of the Investigation Period, unless, prior to the end of the Investigation
Period Seller receives notice from Purchaser waiving its objections. In the
event this Agreement is terminated in accordance with the provisions of this
paragraph, the Title Company shall return to Purchaser its ▇▇▇▇▇▇▇ Money Deposit
and any interest accrued thereon, and this Agreement shall thereafter be null
and void.
Seller and Purchaser shall share, on an equal 50/50 basis, all reasonable
and necessary costs (including both "hard" and "soft" costs paid to unrelated
third parties) incurred by Seller in planning and constructing the Road (the
"Road Costs"), provided, however, that the Road Costs shall be substantially in
keeping with the Road Work Budget, and, provided further, that if the City shall
perform any part of the Road Work as a consequence of an Improvements Agreement,
the Seller shall be deemed to have incurred and paid for Road Costs equal to the
Attributed Value for such Road Work performed by the City.
Unless the City shall be responsible for the Road Work pursuant to an
Improvements Agreement, then not later than the date upon which Purchaser shall
commence construction of the first phase of the shopping center proposed to be
developed by Purchaser upon the Property, Seller shall contract for and cause to
be commenced, and thereafter diligently pursued to completion, the Road. To the
extent available on the Property without detracting from the amount of on-site
fill, if any, which Purchaser may need for such project, fill required for the
Road may come, where feasible, from other areas of the Property designated by
Purchaser. Unless the Road is constructed by the City, Seller shall supervise
the construction of the Road Work in order to ensure that the same shall be
constructed and completed in a good and workmanlike manner and in accordance
with the approved (i.e., by Purchaser and all applicable governmental and
quasi-governmental agencies) plans and specifications therefor and in accordance
with all applicable governmental regulations.
In the event that either (a) the Road Work has been completed at the time
Closing occurs, or, (b) the City is responsible for the Road Work pursuant to an
Improvements Agreement (and out of the credit granted to Purchaser in Paragraph
3F of this Second Addendum), Purchaser shall, at Closing, pay to Seller its
share of the Road Costs.
If the Road Work has not been commenced or completed at the time of
Closing, and the City is not responsible for the Road Work pursuant to an
Improvements Agreement, then in order to secure payment by Seller and Purchaser
of their respective shares of the Road Cost: (x) a sum sufficient to cover one
hundred ten percent (110%) of Seller's aforesaid share of the Road Work Budget
shall be deducted from the sums otherwise payable to Seller at closing and
placed in escrow with the Escrow Agent referred to in the Agreement; and (y)
Purchaser shall simultaneously deposit with such Escrow Agent a sum sufficient
to cover one hundred ten percent (110%) of Purchaser's aforesaid share of the
Road Work Budget. At the option of either party, such party shall be entitled to
post, in lieu of the cash deposit referred to above, an irrevocable letter of
credit in that amount, issued by a reputable, financially responsible local
bank. However, upon commencement of construction, any party having posted any
letter of credit shall be obligated to replace such letter of credit with the
required cash deposit, failing which the Escrow Agent shall, upon demand by the
other party, and after having given not less than ten (10) days prior written
notice to the party who posted the letter of credit, call any letter(s) of
credit which has (have) not been so replaced. Seller shall be entitled to draw
funds from such escrowed sum not more frequently than once each month to pay for
bona fide Road Costs incurred by Seller for properly constructed, lien-free work
in place as a part of the required improvements, as certified by the consulting
engineer supervising the Road Work, and as verified and approved by Purchaser,
acting reasonably. A copy of each draw request, together with necessary
supporting documentation, shall be delivered to Purchaser for its review and
approval (not to be unreasonably withheld or delayed) at least five (5) days
prior to the date upon which the requested draw is to be funded. Unless
Purchaser, acting reasonably, shall have objected thereto in writing, the Escrow
Agent shall be entitled to fund Seller's draw request upon the expiration of the
fifth (5th) day following Purchaser's receipt of the documentation relating to
that draw request. Should Purchaser object to the funding of any draw request,
the matter shall be submitted to arbitration by a panel consisting of Seller's
consulting engineer, Purchaser's consulting engineer, and a third engineer
selected by mutual agreement of the first two engineers (or, if such first two
engineers shall be unable to agree upon the choice of a third engineer, a third
engineer selected by the president or any vice president or other executive
officer of the El Paso County Board of Realtors (or the equivalent
organization). In the event that Seller shall fail to commence, as above
provided, and thereafter complete all of the Road Work within one hundred twenty
(120) days following the date of commencement thereof, then, in such event,
Purchaser shall have the right, but not the obligation, upon written notice to
Seller, to assume control of the Road Work and to complete same utilizing
Seller's contractors or, at Purchaser's option, utilizing other contractors
selected by Purchaser, and Purchaser shall be entitled to draw funds from the
escrowed sum in accordance with procedures outlined above, to reimburse
Purchaser for its costs of construction of such portion of the Road Work.
Upon completion of the Road Work, or if otherwise specified in an
Improvements Agreement, at the time required by such Improvement Agreement, the
party who is then the owner of the Property shall convey the Road to the City.
The obligation to convey the Road to the City shall survive Closing.
5. Sand Creek Drainage and Erosion Control. The parties acknowledge that
the City has imposed upon the owner of the Property the requirement to install
the Drainage Improvements. Seller has represented to Purchaser that the City has
required Seller to post with the City the Letter of Credit in the amount of
$261,747.20 in order to secure performance of Seller's obligations in this
regard. Seller further represents that, unless the Drainage Improvements have
been completed or the City becomes responsible for the installation of the
Drainage Improvements pursuant to an Improvements Agreement, the Letter of
Credit will be renewed when it comes due on October 23, 1999 in an amount to be
determined by the City.
At Closing, unless the City has released the Letter of Credit, Purchaser
shall post with the City a replacement letter of credit in such amount as the
City may require and Purchaser shall assist Seller (at no additional cost to
Purchaser) in Seller's efforts to secure the release of the Letter of Credit
previously posted by Seller (although Purchaser shall have no liability or
obligation if the City shall refuse to release Seller's letter of credit).
If, at Closing, either (a) the Drainage Improvements have been installed,
or (b) the City is obligated to install the Drainage Improvements pursuant to an
Improvements Agreement, Purchaser shall pay to Seller an amount equal to either
(y) the cost (both "hard" and "soft" costs paid to unrelated third parties)
incurred by Seller in installing the Drainage Improvements , or (z) if the City
has installed or is obligated to install the Drainage Improvements pursuant to
an Improvements Agreement, the Attributed Value of such Drainage Improvements.
If, at Closing, the Drainage Improvements have not been installed and the City
is not obligated to install the Drainage Improvements pursuant to an
Improvements Agreement, the Purchaser shall be obligated to install, at its
cost, the Drainage Improvements if required by the City.
6. Termination of Driving Range Lease. The parties acknowledge that the
Property (or a portion thereof) is encumbered by the Lease, and that the Lease
provides that, beginning with the fourth lease year, Seller may terminate the
Lease by giving the Tenant ninety days prior written notice and paying the
Tenant the "Termination Fee" specified in the Lease. In the event the Lease has
not been terminated at Closing, the parties agree that the they will close into
an escrow established with the Escrow Agent. Contemporaneously with the Closing,
Seller shall give notice of termination of the Lease to Tenant. As part of the
escrow instructions, the parties will instruct the Escrow Agent to pay to the
Tenant, out of the sums held in escrow, the amount of the Termination Fee
required to terminate the Lease in accordance with the Lease provisions. The
parties shall also instruct the Escrow Agent to pay, following the termination
of the Lease, any "Existing Encumbrances" (as that term is defined in the
Lease).
The balance of the Closing proceeds shall be held in escrow by the Title
Company until the Lease has been duly terminated, possession of the premises
demised pursuant to the terms of the Lease has been surrendered by the Tenant
with all machinery, equipment, fixtures and other items of personalty removed,
all Existing Encumbrances have been fully discharged, all documents necessary to
evidence the foregoing have been duly recorded and filed, and the Title Company
has insured Purchaser's title to the Property free and clear of the Lease and
all rights of the Tenant thereunder, and free and clear of all Existing
Encumbrances and the rights of the holders thereof.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Second Addendum
to be executed by their duly authorized officers this 15th day of June, 1999.
Seller:
Z-H, Ltd., a Colorado Limited Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its General Partner
And by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its General Partner
Purchaser:
Centrefund Development (Colorado) Corp.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Director of Development & Acquistions
