U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
Quarterly Report under Section 13 or 15(d)
Of the Securities Exchange Act of 1934
For the Quarterly Period Ended Commission File Number
September 30, 1999 0-21867
BISHOP CAPITAL CORPORATION
(Exact name of small business issuer as specified in its charter)
Wyoming 84-0901126
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
716 College View Drive, Riverton, Wyoming 82501
(Address of principal executive offices) (Zip Code)
(307) 856-3800
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes --X-- No ----
The number of shares outstanding of the issuer's $.01 par value Common Stock as
of November 10, 1999 was 874,794.
Transitional Small Business Disclosure Format
(Check one): Yes ---- No --X--
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<CAPTION>
BISHOP CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1999
(Unaudited)
ASSETS
Current Assets:
<S> <C>
Cash and equivalents $ 13,068
Marketable securities 862,338
Receivables:
Gas royalties 37,179
Interest and other 1,715
Prepaid expenses and other 41,291
-----------
Total current assets 955,591
Property and Equipment:
Building 224,644
Furniture and fixtures 65,731
-----------
290,375
Less accumulated depreciation (130,882)
-----------
Net property and equipment 159,493
-----------
Other Assets:
Land under development 780,370
Investment in limited partnership 222,708
Gas royalty interest, net of accumulated amortization of $836,975 230,076
Deferred income taxes 124,700
Notes receivable 39,581
Other assets 4,514
-----------
Total other assets 1,401,949
-----------
Total Assets $ 2,517,033
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued expenses $ 116,251
Current maturities of long-term debt 10,511
Deferred income taxes 69,000
Payable to broker 319,645
-----------
Total current liabilities 515,407
Long-term debt, less current maturities 229,357
Stockholders' Equity:
Preferred stock, no par value; 5,000,000 shares authorized, no shares issued --
Common stock, $.01 par value; 15,000,000 shares authorized;
878,355 shares issued 8,784
Treasury stock, 1,000 shares (815)
Capital in excess of par value 2,217,599
Accumulated deficit (453,299)
-----------
Total stockholders' equity 1,772,269
-----------
Total Liabilities and Stockholders' Equity $ 2,517,033
===========
See accompanying notes to these consolidated financial statements.
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<CAPTION>
BISHOP CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
For the Three Months For the Six Months
Ended September 30, Ended September 30,
---------------------- ----------------------
1999 1998 1999 1998
--------- --------- --------- ---------
REVENUES -
<S> <C> <C> <C> <C>
Sales of real estate $ -- $ 225,540 $ 21,244 $ 499,566
COSTS AND EXPENSES:
Cost of real estate sold -- 118,370 18,270 286,253
General and administration 112,704 103,750 223,489 218,104
Depreciation and amortization 4,808 6,269 11,353 12,757
--------- --------- --------- ---------
117,512 228,389 253,112 517,114
--------- --------- --------- ---------
LOSS FROM OPERATIONS (117,512) (2,849) (231,868) (17,548)
OTHER INCOME (EXPENSE):
Net gas royalties 63,172 17,972 75,834 41,310
Interest income 2,956 4,483 7,197 9,408
Dividend income 4,375 2,773 9,385 5,483
Rental income 6,460 2,610 12,220 5,220
Net gain (loss) on sale of marketable securities (31,752) 7,784 (15,103) 7,784
Net unrealized gain (loss) on marketable securities (76,139) (38,744) 10,216 (9,019)
Net gain on sale of equipment 3,852 -- 3,852 --
Equity in limited partnership income 3,040 2,055 5,700 4,645
Minority interest in earnings of consolidated
subsidiary (12,826) (4,259) (12,826) (5,588)
Interest expense (11,456) (3,062) (21,172) (7,715)
--------- --------- --------- ---------
INCOME (LOSS) BEFORE INCOME TAXES (165,830) (11,237) (156,565) 33,980
INCOME TAX BENEFIT (EXPENSE) 59,000 4,000 55,700 (11,000)
--------- --------- --------- ---------
NET INCOME (LOSS) $(106,830) $ (7,237) $(100,865) $ 22,980
========= ========= ========= =========
EARNINGS (LOSS) PER SHARE $ (.12) $ (.01) $ (.12) $ .03
========= ========= ========= =========
WEIGHTED AVERAGE NUMBER OF
SHARES OUTSTANDING 877,355 838,202 877,355 838,283
========= ========= ========= =========
See accompanying notes to these consolidated financial statements.
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<CAPTION>
BISHOP CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Six Months Ended
September 30,
----------------------
1999 1998
--------- ---------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income (loss) $(100,865) $ 22,980
Adjustments to reconcile net income to net cash
used in operating activities:
Depreciation and amortization 18,025 19,429
Equity in limited partnership income (5,700) (4,645)
Net (gain) loss on sale of marketable securities 15,103 (7,784)
Net unrealized (gain) loss on marketable securities (10,216) 9,019
Net gain on sale of equipment (3,852) --
Minority interest in earnings of consolidated subsidiary 12,826 5,588
Deferred income taxes (55,700) (3,000)
Changes in operating assets and liabilities:
(Increase) decrease in:
Restricted cash -- (88,688)
Marketable securities (14,554) (23,467)
Gas royalties receivable (4,035) (1,960)
Interest and other receivables 6,495 42,712
Prepaid expenses and other 4,217 3,609
Land under development 18,153 (48,033)
Increase (decrease) in:
Accounts payable and accrued expenses (1,864) (68,501)
Income taxes payable -- 14,000
Payable to broker 89,080 (2,248)
Deferred revenue -- 74,460
--------- ---------
Net cash used in operating activities (32,887) (56,529)
CASH FLOWS FROM INVESTING ACTIVITIES:
Funds advanced under notes receivable -- (15,000)
Proceeds from collection of notes receivable 2,640 1,957
Proceeds from sale of equipment 6,916 --
Purchase of property and equipment -- (10,015)
--------- ---------
Net cash provided by (used in) investing activities 9,556 (23,058)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings 24,000 90,000
Principal payments on borrowings (5,227) --
Treasury stock acquired -- (815)
--------- ---------
Net cash provided by financing activities 18,773 89,185
--------- ---------
Net increase (decrease) in cash and equivalents (4,558) 9,598
Cash and equivalents, beginning of period 17,626 35,516
--------- ---------
Cash and equivalents, end of period $ 13,068 $ 45,114
========= =========
Supplemental Disclosure of Cash Flow Information:
Cash paid for interest $ 21,172 $ 7,715
========= =========
Non-cash equipment purchases $ 38,475 $ --
========= =========
See accompanying notes to these consolidated financial statements.
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BISHOP CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The consolidated financial statements reflect all adjustments which are, in
the opinion of management, necessary for a fair presentation of financial
position at September 30, 1999 and results of operations for the interim
periods ended September 30, 1999 and 1998. Such adjustments are of a normal
and recurring nature. The interim results presented are not necessarily
indicative of results that can be expected for a full year. Although the
Company believes that the disclosures in the accompanying financial
statements are adequate to make the information presented not misleading,
certain information and footnote information normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to the rules and
regulations of the Securities and Exchange Commission. These financial
statements should be read in conjunction with the audited financial
statements and related notes included in the Company's Form 10-KSB for the
year ended March 31, 1999.
Certain previously reported amounts have been reclassified to conform with
the current financial statement presentation.
2. Revenue Recognition
Sales of real estate generally are accounted for under the full accrual
method. Under that method, gain is not recognized until the collectibility
of the sales price is reasonably assured and the earnings process is
virtually complete. When a sale does not meet the requirements for income
recognition, gain is deferred until those requirements are met. Sales of
real estate are accounted for under the percentage-of-completion method
when the Company has material obligations under sales contracts to provide
improvements after the property is sold. Under the percentage-of-completion
method, the gain on sale is recognized as the related obligations are
fulfilled.
In connection with the real estate sales, the Company used the
percentage-of-completion method to determine the amount of gross profit to
be recognized for the three and six months ended September 30, 1999 and
1998 as follows:
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BISHOP CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
September 30, September 30,
--------------------- ---------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Sales of real estate $ -- $ -- $ 21,244 $ 574,026
Revenue previously deferred -- 225,540 -- --
Deferred revenue -- -- -- (74,460)
--------- --------- --------- ---------
-- 225,540 21,244 499,566
Cost of real estate sold -- 118,370 18,270 286,253
--------- --------- --------- ---------
Gross profit on sale of real estate $ -- $ 107,170 $ 2,974 $ 213,313
========= ========= ========= =========
</TABLE>
At September 30, 1999, all required development work for real estate sale
contracts closed had been completed and, accordingly, no profit was
required to be deferred.
3. Gas Royalty Income
Gas royalty income is net of amortization of $3,336 for the three months
ended September 30, 1999 and 1998 and $6,672 for the six months ended
September 30, 1999 and 1998.
4. Income Taxes
The provision for income taxes is based on management's estimate of the
effective tax rate expected to be applicable for the fiscal year, net of
the utilization of the net operating loss carryforward which is subject to
limitations under IRS Section 382. The tax rate may be revised at the end
of each successive interim period during the fiscal year to reflect
management's current estimate of the annual effective tax rate.
5. Subsequent Events
In October 1999, the Company entered into a sales agreement with an
unrelated third party to sell a retail pad site (.81 acre) in the Creekside
Center at Galley in Colorado Springs, Colorado for $367,220.
In October 1999, the Company repurchased 2,561 shares of its common stock
for $2,005.
6
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MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking Statements
The following discussion of this report may contain certain forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995, Section 21E of the Securities Exchange Act of 1934, as amended, and
Section 27A of the Securities Act of 1933, as amended, and is subject to the
safe harbors created by those sections. Such forward-looking statements are
subject to risks, uncertainties and other factors which could cause actual
results to differ materially from future results expressed or implied by such
forward-looking statements. The forward-looking statements within this report
are identified by words such as "believes," "anticipates," "expects," "intends,"
"may" and other similar expressions. However, these words are not the exclusive
means of identifying such statements. In addition, any statements that refer to
expectations, projections or other characterizations of future events or
circumstances are forward-looking statements. The following discussion and
analysis should be read in conjunction with the Company's unaudited consolidated
financial statements and notes included elsewhere herein.
Results of Operations
The Company's results of operations are dependent primarily on the sale of real
estate which is affected by national and local economic and competitive
conditions, including interest rates, construction costs, governmental
regulations and legislation, availability of financing and other factors. In
addition, the Company competes with other owners and developers with greater
resources and experience.
Three Months Ended September 30, 1999 and 1998
The Company incurred a net loss of $106,800 for the three months ended September
30, 1999 compared to a net loss of $7,200 for the comparable period in 1998. The
Company, in the current quarter, did not have any closings of real estate sale
contracts.
General and administrative expenses increased $9,000 or 9% for the three months
ended September 30, 1999 compared to the same period in 1998 and is attributable
to general increases in overhead costs and expenses.
Net gas royalty income increased $45,200 in the current quarter compared to the
corresponding quarter in 1998. (Approximately $24,000 of the increase is
attributable to production sales prior to July 1999. The unit operator
experienced computer system problems and was unable to make royalty payments on
a timely basis. The Company had accrued estimates of gas royalty income based on
prior months' actual income.) Natural gas production for the three months ended
September 30, 1999 was 35,500 mcf (14,847 mcf is attributable to production
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prior to July 1999) compared to 15,265 mcf for the comparable period in 1998.
The average sales price of natural gas increased 20% ($1.91 per mcf compared to
$1.59 per mcf) and gas processing costs were comparable for the three months
ended September 30, 1999 compared to the same period in 1998.
Interest and dividend income were comparable for the three months ended
September 30, 1999 compared to the same period in 1998.
Rental income increased $3,800 for the three months ended September 30, 1999
compared to the same period in 1998 due to the leasing of office space to a new
lessee.
The net unrealized loss on marketable securities of $76,100 for the three months
ended September 30, 1999 represents the net change from June 30, 1999 in the
market value of the trading securities portfolio.
Equity in limited partnership income of $3,000 for the three months ended
September 30, 1999 represents the Company's share of the net rental income from
a ground lease.
Minority interest in earnings of consolidated subsidiary of $12,800 for the
three months ended September 30, 1999 represents the limited partner's share of
the net income in Bridger Creek Partnership.
Interest expense increased $8,400 for the three months ended September 30, 1999
compared to the same period in 1998 primarily due to additional borrowings under
the bank line of credit.
Six Months Ended September 30, 1999 and 1998
The Company's net loss for the six months ended September 30, 1999 was $100,900
compared to net income of $23,000 for the comparable period in 1998. During the
current period, the Company closed on one lot sale in its Wyoming residential
subdivision.
General and administrative expenses increased $5,400 or 3% for the six months
ended September 30, 1999 compared to the same period in 1998 and is attributable
to general increases in overhead costs and expenses.
Net gas royalties increased $34,500 in the current six months compared to the
corresponding six months in 1998. (Approximately $12,000 of the increase is
attributable to production sales prior to April 1999. The unit operator
experienced computer system problems and was unable to make royalty payments on
a timely basis. The Company accrued estimates of gas royalty income based on
prior months' actual income.) Natural gas production for the six months ended
September 30, 1999 was 47,878 mcf (8,096 mcf is attributable to production prior
to April 1999) compared to 30,546 mcf for the comparable period in 1998. The
average sales price of natural gas increased 5% ($1.86 per mcf compared to $1.78
per mcf) and gas processing costs increased $1,500 or 21% for the six months
ended September 30, 1999 compared to the same period in 1998.
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Interest and dividend income increased $1,700 or 11% for the six months ended
September 30, 1999 compared to the same period in 1998 primarily due to the
receipt of interest income from the unit operator relating to late gas royalty
income payments.
Rental income increased $7,000 for the six months ended September 30, 1999
compared to the comparable period in 1998 due to the leasing of office space to
a new lessee.
Net unrealized gain on marketable securities of $10,200 for the six months ended
September 30, 1999 represents the net change from March 31, 1999 in the market
value of the trading securities portfolio.
Equity in limited partnership income of $5,700 for the six months ended
September 30, 1999 represents the Company's share of the net rental income from
a ground lease.
Minority interest in earnings of consolidated subsidiary of $12,800 for the six
months ended September 30, 1999 represents the limited partner's share of the
net income in Bridger Creek Partnership.
Interest expense increased $13,500 for the six months ended September 30, 1999
compared to the same period in 1998 primarily due to additional borrowings under
the bank line of credit.
Financial Condition
At September 30, 1999, the Company had working capital of $440,200.
The following summary table reflects comparative cash flows for the Company as
follows:
Six Months Ended
September 30,
--------------------
1999 1998
-------- --------
Net cash provided by (used in):
Operating activities $(32,900) $(56,500)
Investing activities 9,600 (23,100)
Financing activities 18,800 89,200
The Company had negative cash flows from operating activities of $32,900 and
$56,500 for the six months ended September 30, 1999 and 1998, respectively. Net
cash used in operating activities of $32,900 for the six months ended September
30, 1999 resulted from a lower volume of real estate sales compared to 1998.
Net cash provided by investing activities of $9,600 for the six months ended
September 30, 1999 resulted from proceeds from collection of notes receivable
and sale of equipment.
9
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Net cash used in investing activities of $23,100 for the six months ended
September 30, 1998 resulted primarily from funds advanced under notes receivable
of $15,000 and purchase of property and equipment.
Net cash provided by financing activities of $18,800 for the six months ended
September 30, 1999 resulted from bank borrowings of $24,000 offset by principal
payments of $5,227.
Net cash provided by financing activities of $89,200 for the six months ended
September 30, 1998 resulted from bank borrowings of $90,000 offset by the
acquisition of 1,000 shares of treasury stock for $800.
The Company's material commitments for capital expenditures in the next twelve
months will be in conjunction with undeveloped land in Colorado Springs,
Colorado related to (1) the Phase III development of approximately 9 acres in
The Crossings at Palmer Park Center, (2) a proposed 350 unit apartment complex
on 18 acres and (3) the Phase I development ("Creekside Center at Galley") of
three retail pad sites on approximately 5 acres of a 17 acre parcel.
When the Company develops Phase III in The Crossing at Palmer Park Center, it
will incur development costs for utilities, storm sewer, paving and additional
drainage channel improvements. The Company will not commence this development
until it has closed on a Phase III lot sale to fund the estimated on-site and
off-site development costs of approximately $250,000.
In connection with the proposed apartment complex, the Company may have to loan
Creekside Apartments, LLLP, under terms of the partnership agreement, up to
$85,000 for costs associated with the rezoning process and other partnership
matters. The Company anticipates that the loan advances, if any, will be funded
from either working capital or cash proceeds that may be available from lot
sales.
In connection with the Phase I development of the Creekside Center at Galley,
the Company has entered into sales agreements to sell the following retail pad
sites: (i) 1.45 acre to Dillon Real Estate Co., Inc. ("Dillon") for $658,892 for
a convenience store with retail gas installations; and (ii) .81 acre to JH
Foods, Ltd. ("JH") for $367,220 for a fast food hamburger establishment. The
closing of the sales will occur ten (10) business days following notice to the
purchasers by the Company that the City of Colorado Springs ("City") has
approved the Concept Plan and the Plat, provided that the Plat has been recorded
by the closing date. The Company has engaged outside consultants who are
presently working on the Concept Plan and Plat for submission to the appropriate
governmental authorities for approval of its planned development.
In connection with the Dillon contract, which was executed on September 14,
1999, the Company has to complete and submit to the City for its approval the
Concept Plan and Plat on or before 60 days after the effective date of the
contract. The JH contract was executed on October 15, 1999 and requires such
10
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submission on or before 90 days after the effective date of the contract. The
Company has completed and submitted to the City its Concept Plan and Plat within
the designated time period of the Dillon contract.
The estimated costs for the Phase I site development work consisting of grading,
utilities, storm sewer, paving and curb and gutter are approximately $300,000.
Since none of the off-site and on-site development work is anticipated to be
completed by the closing date for the Dillon contract, the Company and Dillon
have agreed that at closing, and out of the net proceeds payable to the Company,
the Company will place in escrow an amount equal to 1.2 times the amount arrived
at by deducting from the estimated development costs of $300,000 the face amount
of any letters of credit the Company may be required to post with the City. The
Company and JH have agreed that at closing, the Company will place in escrow an
amount equal to 1.2 times the amount arrived at by deducting from $300,000, (i)
the face amount of any letters of credit the Company may be required to post
with the City and (ii) the amount deposited into escrow under the Dillon
agreement. The Company anticipates that the development work will be
substantially completed not later than seven (7) months after the date of
closings.
The Company believes that existing working capital will be sufficient to fund
the Company's operations, exclusive of real estate development expenditures,
during the next twelve months. Real estate development expenditures will be
funded by proceeds from retail lot sales.
Year 2000 Issue
In general, the Year 2000 issue relates to computers and other systems being
unable to distinguish between the years 1900 and 2000 because they use two
digits, rather than four, to define the applicable year. This may result in
system failures or miscalculations leading to disruptions in a company's
operations.
The Company is continuing the review of its computer system to assess the
potential costs and scope of the Year 2000 issue. The Company utilizes a minimal
number of computer software programs (primarily accounts payable, general ledger
and payroll) in its operations. The Company is utilizing both internal and
external resources to replace its current software applications for Year 2000
compliant software. Subsequent to September 30, 1999, the Company purchased Year
2000 compliant software and is currently testing the new software applications.
The Company's goal is to complete all testing by November 30, 1999. The total
costs to the Company of these Year 2000 issue activities has not been and is not
anticipated to be material to its financial position or results of operations.
Any hardware and/or software purchased will be capitalized and depreciated in
accordance with normal Company policy. Personnel and all other costs related to
the project are being expensed as incurred.
In addition to the Year 2000 compliance issues we face with respect to our own
system, we face risks that our vendors' and customers' systems, which are not
directly under our control, may not become compliant prior to January 1, 2000.
In addition, if certain public infrastructure interruptions in areas such as
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utilities (electricity, water or telephone), banking or government, result in
disruption of our service, our operations could be impacted for the duration of
the disruption. No assurance can be given that the Company will not be
materially adversely affected by the failure of third parties to timely address
their Year 2000 issues.
A contingency plan has not yet been developed for dealing with the most
reasonably likely worst case scenario with respect to our Year 2000 compliance,
and such scenario has not yet been clearly identified. It is impossible to fully
assess the potential consequences in the event service interruptions from
suppliers occur or in the event there are disruptions in such infrastructure
areas as utilities, communications, banking and government.
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PART II
OTHER INFORMATION
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Default Upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
10.14 Agreement for the Purchase and Sale of Commercial Real
Estate dated September 14, 1999 between Bishop Powers,
Ltd., a Colorado limited partnership, Bishop Capital
Corporation as General Partner and Dillon Real Estate
Co. Inc., a Kansas corporation.
10.15 Agreement for the Purchase and Sale of Commercial Real
Estate dated October 15, 1999 between Bishop Powers,
Ltd., a Colorado limited partnership, Bishop Capital
Corporation as General Partner and JH Foods, Ltd., a
Colorado limited partnership.
27 Financial Data Schedule (submitted only in electronic
format)
b. Reports on Form 8-K
None
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SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
BISHOP CAPITAL CORPORATION
(Registrant)
Date: November 10, 1999 By: /s/ Robert E. Thrailkill
------------------------
Robert E. Thrailkill
President
(Principal Executive Officer)
Date: November 10, 1999 By: /s/ John A. Alsko
-----------------
John A. Alsko
Treasurer and Chief Financial
Officer
(Principal Financial Officer)
14
EXHIBIT 10.14
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 September 14, 1999 ("Effective Date")
between Bishop Powers, Ltd., a Colorado limited partnership ("Seller") and
Dillon Real Estate Co., Inc., a Kansas corporation ("Purchaser"), upon the basis
of the following facts:
RECITALS
--------
Seller is developer of a commercial retail shopping center (the "Center")
to be commonly known as the "Creekside Center", located in Colorado Springs, El
Paso County, Colorado, and depicted on the map attached hereto as Exhibit A and
incorporated herein by reference. The first portion of the Center to be
developed is to be subdivided into approximately three (3) lots ("Phase I").
Purchaser desires to purchase from Seller one of the lots to be platted.
Attached hereto as Exhibit B is a map showing the approximate configuration and
location of the lot Purchaser desires to purchase. Purchaser proposes to use the
Property (as hereinafter defined) for a Loaf & Jug convenience store with retail
gas installations and beer sales ("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 approximately 65,892 square
feet of real property located adjacent to and east of the Center access road off
Gallery Road approximately as depicted in Exhibit B and incorporated herein by
reference (the "Property"). The legal description of the Property shall be
included in the Survey described in Section 3.2(c). Prior to Closing, the
Property will be platted in accordance with Section 10, and will be conveyed to
Purchaser by platted legal description.
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $658,920 (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 Earnest Money Deposit. Purchaser has deposited the sum of $10,000.00
with Lawyers Title Insurance Company, 555 East Pikes Peak, Suite 120, Colorado
Springs, Colorado 80903 (the "Title Company") as earnest money and as a deposit
towards payment of the Purchase Price (together with any additions to such
deposit, herein the "Earnest Money Deposit"). The Earnest Money Deposit shall be
credited against the Purchase Price at Closing (as defined below). The Earnest
Money Deposit shall earn interest at the highest available rate, and any
interest accrual shall belong to the party entitled to the Earnest 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").
<PAGE>
3.2 Title Documents. On or before thirty days (30) after the Effective
Date, 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 the name of the Purchaser in the full amount of the Purchase Price,
subject only to the Permitted Exceptions. The Title Commitment shall further
commit to delete the standard printed exceptions. Seller shall, at its expense
and promptly after Closing, cause the owner's policy of title insurance to be
issued to Purchaser pursuant to the Title Commitment.
(b) Tax Certificate. A certificate of taxes due covering the Property
prepared by the Treasurer of El Paso County, Colorado.
(c) Survey. A land survey plat (as defined in Section 38-51-102,
Colorado Revised Statutes) of the Property, prepared by a licensed Colorado
surveyor, which shall comply with ALTA 1992 Standards for an Urban Class survey
(the "Survey"). The Survey shall contain a legal description of the Property and
shall show the bearing and distances of all boundary lines of the Property, all
improvements to the Property, all easements and other title matters encumbering
or appurtenant to the Property, the location of all dedicated public
rights-of-way adjacent to the Property, any encroachments onto or off of the
Property, the Federal flood zone designation and any other matters that would be
disclosed by an accurate survey of the Property, including the square footage of
the Property. The Survey shall also contain the certification of the surveyor
sufficient for deletion of the standard survey exception from the Title
Commitment, and shall be certified to Purchaser and Purchaser's lender, if any.
If the square footage of the Property as determined by the Survey is different
than 65,892 square feet, then the Purchase Price shall be increased or decreased
at the rate of $10.00 per square foot for every square foot by which the area of
the Property exceeds or is less than 65,892 square feet.
3.3 Defects of Title. Purchaser shall have the right to object to any
defect of title which appears in the Title Documents and which renders title to
the Property unmerchantable or which makes the Property unsuitable for
Purchaser's Intended Use (a "defect of title"). Any objection to a defect of
title must be in writing and must be received by Seller no later than the
expiration of the Inspection Period (as defined in Section 4.2). Purchaser's
failure to provide Seller with written notice of an objection to any title
matter appearing in the Title Documents within the Inspection Period shall be
deemed to be a waiver by Purchaser of any objection it might otherwise have; and
all such title matters shall become additional "Permitted Exceptions."
Notwithstanding the foregoing, if a defect of title is not revealed in the Title
Documents and is discovered by Purchaser after the close of the Inspection
Period, Purchaser shall have until five (5) days after the date of its discovery
of the defect of title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the defect of title, provided, however,
that Purchaser shall be deemed to have approved and accepted any matters that
are shown on the Plat as described in Section 10.6. If Seller receives timely
written notice from Purchaser of a defect of title, Seller shall have the right,
in its sole discretion, to (a) correct or cure the defect of title, (b) obtain
title insurance over the defect of title through title policy endorsement or
otherwise, or (c) notify Purchaser that Seller does not intend to cure or insure
over the defect of title. If Seller is unable or unwilling to cure or insure
over a defect of title, Purchaser shall have the right to either (a) terminate
this Agreement and its obligations hereunder, or (b) waive its objection to the
defect of title. If Purchaser elects to terminate this Agreement, the Title
Company shall return the Earnest 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.
<PAGE>
SECTION 4. INSPECTION OF PROPERTY.
4.1 Inspection Items. Seller shall, on or before fifteen (15) days after
the Effective Date, deliver to Purchaser copies of all studies or reports in
Seller's possession with respect to soils, engineering and environmental
matters, and copies of all written documentation with respect to the pending
action by the City of Colorado Springs to condemn a sewer line on the west side
of the Center.
4.2 Inspection Period. Purchaser shall have from the Effective Date through
forty-five (45) days after the Effective Date, (the "Inspection Period"), in
which to determine whether or not the Property is suitable for Purchaser's
Intended Use (including compliance with applicable zoning, subdivision, building
and other governmental regulations), 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 Earnest 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 Seller, the Center 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, subject to the matters set forth in this
Agreement, 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.
<PAGE>
5.2 Purchaser's Representations and Warranties. As of the Effective Date
and as of the date of Closing, Purchaser hereby represents and warrants to
Seller that:
(a) Neither the entering into of this Agreement nor the consummation
or the transaction contemplated hereby will constitute a violation or breach by
Purchaser of any contract or other instrument to which Purchaser is a party, or
to which it is subject or by which any of its assets or properties may be
affected, or of any judgment, order, writ, injunction or decree issued against
or imposed upon it, or will result in a violation of any applicable law, order,
rule or regulation of any governmental authority affecting Purchaser.
(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
Purchaser's ability to enter into or consummate this Agreement.
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
<PAGE>
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property. Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or implied, concerning the presence or absence of radon
in the Property, the suitability of the Property for development or the design
or construction techniques, if any, that can be employed to reduce any radon
levels in improvements built on the Property; and Purchaser, for itself and its
successors and assigns, releases Seller from any liability whatsoever with
respect to the foregoing matters.
SECTION 7. CONDITIONS PRECEDENT TO PURCHASE AND SALE.
7.1 Conditions Precedent to Purchaser's Obligations. The following matters
shall constitute absolute conditions precedent to Purchaser's obligations to
purchase the Property:
(a) Seller's representations and warranties set forth in Section 5.1
of this Agreement shall be true and correct as of the closing date.
(b) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(c) 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.
Purchaser shall act with due diligence in completing the conditions of this
Agreement. In the event that the conditions set forth above are not met or
satisfied on or before Closing, through no fault of Purchaser, then Purchaser
may either obtain a refund of the Earnest 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 that exceeds $300,000.00.
(c) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(d) The Plat referenced in Section 10.6 has been recorded.
Seller shall act with due diligence in completing the conditions of this
Agreement. In the event the conditions set forth above is not met or satisfied
on or before Closing, through no fault of Seller, then Seller may terminate this
Agreement by giving written notice of termination to Purchaser in which event
the Earnest 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.
<PAGE>
SECTION 8. CLOSING.
8.1 Closing Date. The closing of the purchase and sale of the Property (the
"Closing") shall occur ten (10) business days following notice to Purchaser from
Seller that the City has approved the Concept Plan and the Plat (the "City
Approvals"), provided that the Plat has been recorded by Closing. The Closing
shall occur at the offices of the Title Company.
8.2 Purchaser's Obligations at Closing. In addition to delivery of the
balance of the Purchase Price as described in Section 2.2., a portion of which
shall be deposited into escrow pursuant to the provisions of the Escrow
Agreement, as 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.
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.
<PAGE>
9.2 Miscellaneous Closing Costs. Seller shall pay the costs associated with
providing Purchaser with the title insurance policy described in Section 3.2.
All real estate recording and documentary fees payable in connection with the
purchase and sale of the Property shall be paid by Purchaser. Any fee for
closing services which is charged by the Title Company shall be shared equally
by Seller and Purchaser. Except as otherwise expressly provided in this
Agreement, Purchaser and Seller shall pay their own fees and expenses incurred
in the preparation, execution and performance of their respective obligations
under this Agreement.
SECTION 10. APPROVALS, PLANNING, PLATTING AND DEVELOPMENT.
10.1 Seller's Development Obligations - Generally. The Seller shall be
responsible for subdividing and platting the Property and for the Off Site and
On Site Development Work (as hereinafter defined). Prior to the Effective Date,
Seller has furnished Purchaser with a development budget (the "Development
Budget") for all On and Off Site Development Work necessary or required in
connection with the subdivision and platting of the Property (including both
"hard" and "soft" costs). The Development Budget was prepared using the most
accurate information available to Seller at the time of its preparation. In the
event that unforeseen events occur (such as, for example, City imposed
development obligations not currently anticipated in Seller's current
Development Budget) prior to Closing that cause the total amount of the
Development Budget to increase above $300,000.00, Seller may, at its option, so
notify Purchaser, and may elect to by such notice to terminate this Agreement
and all of its obligations hereunder. Upon receipt of such a notice of
termination by Purchaser, this Agreement shall be automatically terminated
without further action by either party. Upon termination, the Title Company
shall immediately return the Earnest Money Deposit to Purchaser.
10.2 Timing of Seller's Development Obligations. On or before sixty (60)
days after the Effective Date, Seller shall complete and submit to the City for
its approval the Concept Plan and the Plat (as hereinafter defined) of the
Property. Seller shall use its reasonable efforts to obtain the City's approval
of the Concept Plan and the Plat. It is anticipated that none of the Development
Work will be completed by Closing. As a consequence, and to assure the Purchaser
that the On Site Development Work will be completed in a timely manner following
the Closing, the parties have agreed that at Closing, and out of the net
proceeds payable to Seller, Seller will place in an escrow an amount equal to
1.2 times the amount arrived at by deducting from $300,000 the face amount of
the Letter of Credit (as described in Section 10.3). The terms of the escrow
shall be substantially as set forth in the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C. The date to be inserted in Paragraph 3 of Exhibit
C, shall be seven (7) months after the date of Closing.
10.3 Off Site Development Work. For purposes of this Agreement, "Off Site
Development Work" shall mean all of the development work to be performed off the
Property and required to be completed by the City as a condition of the City's
approval of the Concept Plan and the Plat. 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 development work on the Property
required to be completed by the City as a condition of the City's approval of
the Concept Plan and the Plat, and the following:
(a) Rough grading of the Property in accordance with the City approved
grading plan (the "Grading Plan").
<PAGE>
(b) Construction of private road access to Property per Concept Plan.
(c) Stubbing all utilities to the Property pursuant to City Utility
Department specifications.
10.5 Reserved.
10.6 Concept Plan and Platting. Purchaser acknowledges that the Property
must be platted and that governmental authorities will require a concept plan
("Concept Plan"), showing the proposed development within the Center, and a plat
("Plat") of the Property, to be approved in accordance with applicable zoning
laws and City subdivision ordinances. The Concept Plan must be approved by the
City, and the Plat recorded, prior to the issuance of any building permit for
construction of improvements on the Property. Purchaser acknowledges that the
Plat will have to provide for landscaping, utility and drainage easements as
required by the City. Seller shall be responsible for obtaining the City's
approval of the Concept Plan and Plat.
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 a
boundary of the Property. The size or capacity of the utility lines extended to
the Property boundary shall not be less than the following:
Utility Size or Capacity
------- ----------------
Water Main eight inch (8")
Electrical Service 800 amps
Sanitary Sewer four inch (4")
Natural Gas one inch (1")
Purchaser shall be responsible for extending such utility services to the
improvements it constructs on the Property and for paying all tap, line
extension and other City imposed charges and fees in connection with the
extension of such utility services to the improvements. Purchaser acknowledges
that the City installs all electric lines and that Purchaser will be solely
responsible for making arrangements with the City's Department of Utilities to
extend electric lines and to provide electrical service to meet the particular
needs of the improvements to be constructed on the Property. Purchaser will also
be responsible for obtaining telephone and cable television lines and service
for the Property. Purchaser acknowledges that the Plat will have to provide for
utility easements as required by the City.
10.9 Streets. Access to the Property will be provided via public and
private streets. Seller shall be responsible for constructing all private and
public access roads within the Center. The access road into the Center off of
Galley Road (the "Street"), to which the Property is adjacent, will be
constructed to meet City street standards. Purchaser acknowledges that Seller
intends to dedicate the Street to the City as soon as the City is prepared to
accept the Street as a City street. Purchaser also acknowledges that, as a
consequence of the Property being located adjacent to what is to become a City
street, that Purchaser's Development Plan will have to comply with setback,
access and other requirements imposed by the City. Purchaser shall be solely
responsible for constructing all driveways within the boundaries of Purchaser's
Property and all curbs and sidewalks on or adjacent to the Property required by
governmental authorities.
<PAGE>
10.10 Drainage. Seller shall be responsible for installing, or causing to
be installed, all drainage facilities required by the City outside of the
Property that relate to development on the Property. Purchaser will be solely
responsible for providing all drainage facilities required within the boundaries
of the Property in accordance with the Purchaser's Development Plan, the Plat
and any applicable drainage plans approved by the City. Purchaser acknowledges
the Plat will have to provide for drainage easements as required by the City.
10.11 Park and Drainage Fees. Seller will hold Purchaser harmless from all
requirements and obligations to the City for park fees and drainage fees with
respect to the Property that are required to be paid in conjunction with the
filing and approval of the Plat under ordinances in effect at the time of this
Agreement.
10.12 Purchaser's Approval Rights. Seller shall, at its expense, prepare
and deliver to Purchaser, by not later than sixty (60) days after the Effective
Date, the following:
(a) The Grading Plan;
(b) The proposed Concept Plan;
(c) The proposed Plat;
(d) The CC&R's (as defined in 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 Earnest Money Deposit to Purchaser and neither
party shall have any further obligation hereunder. If Purchaser elects to waive
its Disapproval, the matter objected to shall thereafter be considered approved.
10.13 Cooperation. The Seller and Purchaser shall cooperate with one
another in a reasonable manner to the end that the Closing occurs as
contemplated by this Agreement. All approvals required to be obtained by either
party pursuant to this Agreement shall be sought in a reasonable manner and
acted upon diligently and expeditiously. Whenever the provisions of this
Agreement require one party to obtain the other party's approval, such approval
shall not be unreasonably withheld or delayed. Each party shall use its good
faith efforts to satisfy all the conditions to its performance of this
Agreement.
SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. On or before the date set forth in Section 10.12, Seller
shall deliver to Purchaser at Seller's expense, the proposed covenants,
conditions and restrictions (the "CC&R's") which Seller intends to place on the
Center, 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:
<PAGE>
(a) Incorporate, as part of the property covered thereunder, the
Property.
(b) Contain a prohibition that, for so long as the Property is
utilized primarily for the sale of gasoline products and a convenience store, no
other portion of the Center shall be used for such purposes, provided, however,
that such restriction shall not prevent other property in the Center from being
used primarily for the conduct of (i) a motor vehicle lubrication and oil change
business; (ii) a business which sells automotive parts; or, (iii) a retail
liquor store.
(c) Provide that any private roadways shall be governed by the CC&R's
and each property owner within the Center shall pay it's proportionate share of
expenses (as set forth in the CC&R's) which shall be allocated among those
property owners owning platted lots within any phase of the development that has
been incorporated in the CC&R's currently being served by the roads and
services.
(d) Contain provisions allowing the Seller to "phase" the development
of the property within the Center.
(e) Contain provisions allowing the Seller to approve all plans and
specifications for any improvements to be constructed on any property within the
Center, and development plan for or plat of any property within the Center.
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. POSSESSION. Possession of the Property shall be delivered to
Purchaser at Closing, subject to Seller's right of access to the Property to
perform its On and Off Site Development Work and other obligations pursuant to
the terms of this Agreement.
SECTION 13. NAME AND LOGO. Except for directional and location
identification purposes, neither the name "Creekside 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 in
writing 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 Earnest Money Deposit to Purchaser and neither party shall have any
further obligation hereunder. If Purchaser does not exercise its option to
terminate as provided in this Section, the Agreement shall continue in full
force and effect. In such event, the Purchase Price shall be paid by Purchaser
at Closing without reduction, but Seller shall remit to Purchaser all awards
received by Seller as a result of the condemnation.
SECTION 15. DEFAULT AND REMEDIES. In the event of default by either party
under this Agreement, Purchaser and Seller agree as follows:
<PAGE>
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 Earnest 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 Earnest Money Deposit, or (b)
enforce this Agreement through an action for specific performance and damages.
Purchaser and Seller hereby agree that if Purchaser elects to recover damages
from Seller, Purchaser's damages shall not exceed $50,000, and Purchaser hereby
waives its right to recover damages from Seller in excess of such amount,
including without limitation any loss of profits, consequential damages,
punitive damages or any other damages or losses suffered by Purchaser in
connection with this Agreement.
SECTION 16. BROKERS. Seller represents and warrants to Purchaser that,
other than Highland Commercial Group, LLC, and MarTec Commercial Real Estate
(together, "Broker"), no broker or finder has been engaged by Seller in
connection with any of the transactions contemplated by this Agreement. Seller
further represents and warrants that no person or entity, other than Broker, now
claims or will claim any commission, finder's fee or other amounts by, through,
under or as a result of any relationship with Seller because of such
transactions. Seller agrees to pay Broker a commission equal to ten percent
(10%) of the Purchase Price, which commission shall not be earned or payable
until the occurrence of the Closing and Seller's receipt of the Purchase Price.
In the event of a termination of this Agreement, Broker shall have no right to
share in the Earnest Money Deposit if retained by Seller. Purchaser represents
and warrants to Seller that no broker or finder has been engaged by Purchaser in
connection with any of the transactions contemplated by this Agreement.
Purchaser further represents that no person or entity, other than Broker, claims
or will claim any commission, finder's fee or other amounts by, through, under
or as a result of any relationship with Purchaser because of such transactions.
Each party agrees to hold the other party harmless from and against any and all
costs, expenses, claims, losses or damages, including reasonable attorneys'
fees, resulting from any breach of the representations and warranties contained
in this Section.
SECTION 17. ASSIGNMENT. Purchaser shall not have the right to assign all or
any part of its interest or rights under this Agreement without the prior
written consent of Seller, except for an assignment to an affiliate. For
purposes hereof, "affiliate" means any person or entity which controls, is
controlled by, or is under common control with, the Purchaser. A person or
entity shall be deemed to have control of another person or entity if such
person or entity directly or indirectly or acting in concert with one or more
persons and/or entities, or through one or more subsidiaries, owns, controls or
holds with power to vote more than 15 percent of the voting shares or rights of
such other entity, or controls in any manner the election or appointment of a
majority of the directors, trustees or managers of another entity, or is the
general partner in or has contributed more than 25 percent of the capital of
such other entity.
SECTION 18. MISCELLANEOUS.
18.1 Notices. All notices required or permitted under this Agreement shall
be given by nationally recognized overnight courier, for "next day" delivery,
with all delivery costs paid, or by hand delivery, directed as follows:
If intended for Seller, to:
Bishop Powers, Ltd.
c/o Bishop Capital Corporation
716 College View Drive
Riverton, WY 82501
Attn: Robert Thrailkill
Phone: (307) 856-3800
<PAGE>
If intended for Purchaser, to:
Dillon Real Estate Co., Inc.
P. O. Box 1266
Hutchinson, KS 67504-1266
Attn: Robert Moeder, Vice President
with a copy in each case to:
Flynn McKenna Wright & Karsh, llc
Plaza of the Rockies, Suite 202
111 South Tejon
Colorado Springs, Co 80903
Attn: R. Tim McKenna
and to:
John Pearce
Mini Mart, Inc.
D.b.a. Loaf 'n Jug/MiniMart
442 Keeler Parkway
Pueblo, Co 81001
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.
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.
<PAGE>
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 October 1, 1999. 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.
[the remainder of this page intentionally left blank]
<PAGE>
This Agreement for the Purchase and Sale of Commercial Real Estate has been
executed as of the date first written above.
SELLER:
Bishop Powers., Ltd.
By: Bishop Capital Corporation, its general partner
By: /s/ Robert E. Thrailkill
----------------------------
Its: President
--------------
PURCHASER:
Dillon Real Estate Co., Inc.
By: /s/ Robert Moeder
---------------------
Its: Vice President
-------------------
<PAGE>
AGREEMENT OF BROKER
The undersigned, as Broker hereunder, acknowledges and agrees that Section 16 of
the foregoing Agreement correctly sets forth the understanding and agreement
between Broker, Seller and Purchaser relating to the payment of a commission
resulting from the sale of the Property.
BROKER:
Highland Commercial Group, LLC
By:______________________________
Its:_____________________________
MarTec Commercial Real Estate
By:______________________________
Its:_____________________________
<PAGE>
EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Map of Center
<PAGE>
EXHIBIT B
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Map of Property
<PAGE>
EXHIBIT C
to
Agreement for the Purchase and
Sale of Commercial Real Estate
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is executed this ____ day of ____________, 1999, by
and among Bishop Powers, Ltd., a Colorado limited partnership ("Bishop"), Dillon
Real Estate Co., Inc., a Kansas corporation ("Dillon") and Lawyers Title
Insurance Company ("Escrow Agent").
RECITALS
A. Dillon and Bishop entered into a certain Agreement for the Purchase and
Sale of Commercial Real Estate dated _______, 1999 (the "Contract"), whereby
Bishop agreed to sell to Dillon, and Dillon 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 Dillon's purchase of the Property, Bishop
agreed to install certain on site improvements and off site improvements.
C. Some or all of the on site improvements ("On Sites") listed on Exhibit B
have not been completed or paid to date. However, the parties nonetheless desire
to close the transaction provided for in the Contract.
D. To ensure that the On Sites will be completed and paid for in a timely
manner, Dillon and Bishop have agreed to close on the date hereof and Bishop has
agreed to deposit with Escrow Agent, pursuant to the terms of this Escrow
Agreement, the sum of $___________ (the "Funds").
E. The Closing shall be completed today, and the Escrow Agent shall hold
the Funds to disburse the Funds post-closing pursuant to the terms of this
Escrow Agreement.
NOW THEREFORE, in consideration for their mutual covenants herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Closing; The Account. The Closing shall be completed forthwith and
immediately thereafter Escrow Agent shall deposit the Funds in an interest
bearing account at a federally chartered financial institution, the deposits of
which are insured by the Federal Deposit Insurance Corporation, which should be
designated as "Lawyers Title Insurance Company on behalf of Bishop Powers, Ltd."
(the "Account"). Unless and until there is a default by Bishop pursuant to
Paragraph 3 following, interest accruing on the Account shall be paid monthly to
Bishop.
<PAGE>
2. Disbursements to Bishop.
a. The parties acknowledge that disbursements from the Account to
Bishop shall be made with respect to the On Site line items in Exhibit B. Thus,
Bishop will only be entitled to receive the amount set forth in Exhibit B for a
given On Site line item, subject to Subparagraph f. below, and any greater costs
incurred for that On Site line item shall be Bishop's sole responsibility;
b. Prior to any disbursements being made to Bishop, Bishop or a
development manager designated in writing by Bishop, shall submit a certificate
and demand for payment ("Certificate") to Escrow Agent at the address set forth
on the signature page of this Escrow Agreement. The Certificate shall set forth,
by line item, the type of On Sites for which work has been done, the extent to
which each has been completed, the amount of payment (based on Exhibit B) that
is being demanded for each On Site line item, the total disbursement amount
being requested and whether the Certificate is a final disbursement request;
c. Bishop may request payment of the amount expended for any On Site
line item, provided however, that if during the term of this Escrow Agreement
the amount requested by Bishop for an On Site line item, together with all
previously advanced amounts for that On Site line item, exceeds the amount shown
on Exhibit B for such On Site line item, Escrow Agent shall only disburse to
Bishop the amount designated on Exhibit B for that On Site line item;
d. After confirming that payments for any particular On Site line item
have not exceeded the amount provided in Exhibit B, Escrow Agent shall promptly
disburse the requested amount from the Account. Each disbursement shall be in
the form of a lien waiver check from Escrow Agent and shall be made payable
jointly to the contractor performing the work and Bishop;
e. Bishop shall only submit disbursement Certificates to Escrow Agent
twice each month, but shall be permitted to submit one final Certificate at any
time to handle any previously unsubmitted On Site costs. Each Certificate shall
contain all previously unsubmitted On Site costs which have been incurred by
Bishop to date; and,
f. If Bishop installs all of the On Sites (rather than Dillon) and
funds are remaining in the Account following Bishop's final Certificate amounts,
Escrow Agent shall then disburse all remaining amounts to Bishop.
3. Default by Bishop - Dillon's Completion. If all On Sites have not been
completed by ___________, 200_, Dillon may notify Escrow Agent, and following
the giving of such notice, may itself complete the On Site improvements, and
draw on the remaining Funds held by the Escrow Agent in accordance with the
procedures set forth in Section 2 hereinabove.
4. Termination of Escrow. This Escrow shall terminate upon completion of
all the On Site Improvements, or by written agreement of Bishop and Dillon.
5. Amendments. No changes or modifications shall be effected in the terms
of this Escrow Agreement except by written instrument signed by Bishop and
Dillon. Escrow Agent shall not be obligated to honor or act upon any
communications or notices received from Bishop or Dillon 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.
<PAGE>
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 Bishop and Dillon as to such
performance. If Escrow Agent is unable to obtain such understanding, it may
bring an interpleader or declaratory judgment action in the District Court of El
Paso County to resolve the questions as to which it is uncertain. Bishop and
Dillon hereby agree for themselves to the jurisdiction of the District Court of
El Paso County, for the purposes of such an action.
8. Indemnification. Dillon and Bishop 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.
BISHOP POWERS, LTD.
_ Bishop Capital Corporation
716 College View Drive
Riverton, WY 82501
By: Bishop Capital Corporation, its General Partner
By:________________________________
DILLON REAL ESTATE CO., INC.
- ---------------------------
______________________, CO _______
By:________________________________
LAWYERS TITLE INSURANCE COMPANY
555 East Pikes Peak Avenue
Colorado Springs, CO 80903
By:________________________________
<PAGE>
EXHIBIT A
to
Escrow Agreement
LEGAL DESCRIPTION
Lot __ in the Creekside Center, Filing No. __, in the City of Colorado Springs,
El Paso County, Colorado
<PAGE>
EXHIBIT B
to
Escrow Agreement
ON SITE IMPROVEMENTS
EXHIBIT 10.15
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 October 14, 1999 ("Effective Date") between
Bishop Powers, Ltd., a Colorado limited partnership ("Seller") and JH Foods,
Ltd., a Colorado limited partnership ("Purchaser"), upon the basis of the
following facts:
RECITALS
--------
Seller is developer of a commercial retail shopping center (the "Center")
to be commonly known as the "Creekside Center", located in Colorado Springs, El
Paso County, Colorado, and depicted on the map attached hereto as Exhibit A and
incorporated herein by reference. The first portion of the Center to be
developed is to be subdivided into approximately three (3) lots ("Phase I").
Purchaser desires to purchase from Seller one of the lots to be platted.
Attached hereto as Exhibit B is a map showing the approximate configuration and
location of the lot Purchaser desires to purchase. Purchaser proposes to use the
Property (as hereinafter defined) for a Carl's Jr. "fast food" hamburger
establishment ("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 approximately 36,722 square
feet of real property located approximately as depicted in Exhibit B and
incorporated herein by reference (the "Property"). The legal description of the
Property shall be included in the Survey described in Section 3.2(c), and the
square footage of such Property shall not differ from 36,722 by more than two
percent (2%). Prior to Closing, the Property will be platted in accordance with
Section 10, and will be conveyed to Purchaser by platted legal description,
which platted Property shall not be materially different than that described in
the Survey.
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $367,220 (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 Earnest Money Deposit. Purchaser has deposited the sum of $10,000.00
with Lawyers Title Insurance Company, 555 East Pikes Peak, Suite 120, Colorado
Springs, Colorado 80903 (the "Title Company") as earnest money and as a deposit
towards payment of the Purchase Price (together with any additions to such
deposit, herein the "Earnest Money Deposit"). The Earnest Money Deposit shall be
credited against the Purchase Price at Closing (as defined below). The Earnest
Money Deposit shall earn interest at the highest available rate, and any
interest accrual shall belong to the party entitled to the Earnest 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").
<PAGE>
3.2 Title Documents. On or before thirty days (30) after the Effective
Date, 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 the name of the Purchaser in the full amount of the Purchase Price,
subject only to the Permitted Exceptions. The Title Commitment shall further
commit to delete the standard printed exceptions. Seller shall, at its expense
and promptly after Closing, cause the owner's policy of title insurance to be
issued to Purchaser pursuant to the Title Commitment.
(b) Tax Certificate. A certificate of taxes due covering the Property
prepared by the Treasurer of El Paso County, Colorado.
(c) Survey. A land survey plat (as defined in Section 38-51-102,
Colorado Revised Statutes) of the Property, prepared by a licensed Colorado
surveyor, which shall comply with ALTA 1992 Standards for an Urban Class survey
(the "Survey"). The Survey shall contain a legal description of the Property and
shall show the bearing and distances of all boundary lines of the Property, all
improvements to the Property, all easements and other title matters encumbering
or appurtenant to the Property, the location of all dedicated public
rights-of-way adjacent to the Property, any encroachments onto or off of the
Property, the Federal flood zone designation and any other matters that would be
disclosed by an accurate survey of the Property, including the square footage of
the Property. The Survey shall also contain the certification of the surveyor
sufficient for deletion of the standard survey exception from the Title
Commitment, and shall be certified to Purchaser and Purchaser's lender, if any.
If the square footage of the Property as determined by the Survey is different
than 36,722 square feet, then the Purchase Price shall be increased or decreased
at the rate of $10.00 per square foot for every square foot by which the area of
the Property exceeds or is less than 36,722 square feet.
3.3 Defects of Title. Purchaser shall have the right to object to any
defect of title which appears in the Title Documents and which renders title to
the Property unmerchantable or which makes the Property unsuitable for
Purchaser's Intended Use (a "defect of title"). Any objection to a defect of
title must be in writing and must be received by Seller no later than the
expiration of the Inspection Period (as defined in Section 4.2). Purchaser's
failure to provide Seller with written notice of an objection to any title
matter appearing in the Title Documents within the Inspection Period shall be
deemed to be a waiver by Purchaser of any objection it might otherwise have; and
all such title matters shall become additional "Permitted Exceptions."
Notwithstanding the foregoing, if a defect of title is not revealed in the Title
Documents and is discovered by Purchaser after the close of the Inspection
Period, Purchaser shall have until five (5) days after the date of its discovery
of the defect of title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the defect of title, provided, however,
that Purchaser shall be deemed to have approved and accepted any matters that
are shown on the Plat as described in Section 10.6. If Seller receives timely
written notice from Purchaser of a defect of title, Seller shall have the right,
in its sole discretion except as otherwise specified, to (a) correct or cure the
defect of title, (b) with Purchaser's consent, 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
Earnest 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 shall, on or before fifteen (15) days after
the Effective Date, deliver to Purchaser copies of all information, studies or
reports in Seller's possession, custody or control with respect to soils,
engineering and environmental matters, and copies of all written documentation
with respect to the pending action by the City of Colorado Springs to condemn a
sewer line on the west side of the Center.
<PAGE>
4.2 Inspection Period. Purchaser shall have from the Effective Date through
sixty days (60) days after the Effective Date, (the "Inspection Period"), in
which to determine whether or not the Property is suitable for Purchaser's
Intended Use (including compliance with applicable zoning, subdivision, building
and other governmental regulations), 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 Earnest 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 Seller, the Center 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, subject to the matters set forth in this
Agreement, has full right, power and authority to sell, convey and transfer the
Property to Buyer as provided in this Agreement and to carry out Seller's
obligations under this Agreement. This Agreement and all documents executed by
Seller that are to be delivered prior to or at Closing have been duly authorized
and have been (or, when executed and delivered, will be) duly executed and
delivered by Seller and are (or, when executed and delivered will be) legal,
valid and binding obligations of Seller.
(b) The execution, delivery and performance of this Agreement, and the
consummation of the transaction contemplated hereby, will not result in any
breach of or constitute any default under or result in the imposition of any
lien or encumbrance against any part of the Property under any agreement or
other instrument to which Seller is a party or by which Seller or any part of
the Property might be bound.
(c) Seller is aware of the provisions of the Deficit Reduction Act of
1984, 26 U.S.C. Section 1445, et seq., and the Internal Revenue Service
regulations implementing said Act referring to the withholding tax on the
disposition of United States real property interests by foreign persons and
foreign corporations, and Seller is not a foreign person or corporation as
defined by said Act and regulations.
(d) In the event any claim is made by any party for the payment of
sums due for the furnishing of labor, materials, equipment or fuel to Seller or
to the Property at the request of Seller prior to Closing, or in the event any
lien is filed against the Property subsequent to Closing as a result of the
furnishing of such materials, labor, equipment or fuel at the request of Seller,
Seller shall immediately cause said lien to be released of record or otherwise
satisfy Buyer, to Buyer's reasonable satisfaction, that such lien will be
immediately released.
(e) To the best of Seller's actual knowledge without investigation, as
of the date of this Contract and as of the date of Closing, the Property
(including land, surface water, ground water and improvements) is now and will
then be free of all contamination, including (i) any "hazardous waste",
"underground storage tanks", "petroleum", "regulated substance", or "used oil"
as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss.
9601, et seq.) as amended, or by any regulations promulgated thereunder; (ii)
any "hazardous substance" as defined by the Comprehensive Environmental
<PAGE>
Response, Compensation and Liability Acto of 1980 (42 U.S.C. ss. 9601, et seq.)
as amended, or by any regulations promulgated thereunder (including, but not
limited to, asbestos and radon); (iii) any "oil, petroleum products, and their
byproducts", as defined by C.R.S. 1973 ss. 25-17-101 et seq., as amended, or by
any regulations promulgated thereunder; (iv) any "hazardous waste" as defined by
the Colorado Waste Act, C.R.S. 1973 ss. 25-15-101, et seq., or by any
regulations promulgated thereunder; (v) any substance the presence of which on,
in or under the Property is prohibited by any law similar to those set forth
above; and (vi) any other substance which by law, regulation or ordinance
requires special handling in its collection, storage, treatment or disposal.
(f) Except as may otherwise be provided for or disclosed herein, and
except for those matters that are subject to Purchaser's control, to the best of
Seller's actual knowledge without investigation, as of the date of this
Contract, the Property may be used for Purchaser's Intended Use.
For purposes of this subsection 5.1, "to the best of Seller's knowledge" shall
mean to the best of the knowledge of Robert E. Thrailkill and John A. Alsko, who
are the President and Secretary, respectively, of Bishop Capital Corporation,
the general partner of Seller.
5.2 Purchaser's Representations and Warranties. As of the Effective Date
and as of the date of Closing, Purchaser hereby represents and warrants to
Seller that:
(a) Neither the entering into of this Agreement nor the consummation
or the transaction contemplated hereby will constitute a violation or breach by
Purchaser of any contract or other instrument to which Purchaser is a party, or
to which it is subject or by which any of its assets or properties may be
affected, or of any judgment, order, writ, injunction or decree issued against
or imposed upon it, or will result in a violation of any applicable law, order,
rule or regulation of any governmental authority affecting Purchaser.
(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
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.
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(d) Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person.
(e) Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults.
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that all of the Property is sold by Seller and purchased
by Purchaser subject to the foregoing.
6.2 Radon. The Colorado Department of Health and the United States
Environmental Protection Agency ("EPA") have detected elevated levels of
naturally occurring radon in structures in the Colorado Springs area. EPA has
raised concerns with respect to adverse effects on human health of long-term
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property. Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or implied, concerning the presence or absence of radon
in the Property, the suitability of the Property for development or the design
or construction techniques, if any, that can be employed to reduce any radon
levels in improvements built on the Property; and Purchaser, for itself and its
successors and assigns, releases Seller from any liability whatsoever with
respect to the foregoing matters.
SECTION 7. CONDITIONS PRECEDENT TO PURCHASE AND SALE.
7.1 Conditions Precedent to Purchaser's Obligations. The following matters
shall constitute absolute conditions precedent to Purchaser's obligations to
purchase the Property:
(a) Seller's representations and warranties set forth in Section 5.1
of this Agreement shall be true and correct as of the closing date.
(b) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(c) Purchaser has received the approval from the City of Colorado
Springs ("City") of Purchaser's Development Plan.
(d) The Plat referenced in Section 10.6 has been recorded.
(e) Seller has provided Purchaser with a copy of the Letter of Credit
referenced in Section 10.3.
Purchaser shall act with due diligence in completing the conditions of this
Agreement. In the event that the conditions set forth above are not met or
satisfied on or before Closing, through no fault of Purchaser, then Purchaser
may either obtain a refund of the Earnest Money Deposit, following which neither
party shall thereafter have any further liability to the other hereunder, or
Purchaser may waive in writing the nonfulfillment of any portion of these
conditions and purchase the Property pursuant to the terms and provisions hereof
without any reduction in the Purchase Price.
7.2 Condition Precedent to Seller's Obligation. The following matters shall
constitute absolute conditions precedent to Seller's obligations to sell the
Property:
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(a) 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 that exceeds $300,000.00.
(c) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(d) The Plat referenced in Section 10.6 has been recorded.
Seller shall act with due diligence in completing the conditions of this
Agreement. In the event the conditions set forth above is not met or satisfied
on or before Closing, through no fault of Seller, then Seller may terminate this
Agreement by giving written notice of termination to Purchaser in which event
the Earnest 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) business days following notice to Purchaser from
Seller that the City has approved the Concept Plan, the Plat and Purchaser's
Development Plan (the "City Approvals"), provided that the Plat has been
recorded by Closing. The Closing shall occur at the offices of the Title
Company.
8.2 Purchaser's Obligations at Closing. In addition to delivery of the
balance of the Purchase Price as described in Section 2.2., a portion of which
shall be deposited into escrow pursuant to the provisions of the Escrow
Agreement, as 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.
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(f) Such other documents that may be necessary to carry out the
purposes of this Agreement.
SECTION 9. SETTLEMENT AND PRORATIONS. The following items shall be prorated
or settled between Purchaser and Seller at Closing:
9.1 Taxes and Assessments. Prior to Closing, Seller shall pay the amount of
any unpaid real and personal property taxes allocable to the Property for tax
years prior to the year of Closing and all installments of any special
assessments due in years prior to the year of 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 installments
for assessments for the Property for the year of Closing, payable in the
following calendar year, shall be apportioned between Seller and Purchaser as of
the date of Closing. Such apportionment shall be computed on the basis of the
most recent assessed valuation and mill levy information, and shall be final.
9.2 Miscellaneous Closing Costs. Seller shall pay the costs associated with
providing Purchaser with the title insurance policy described in Section 3.2.
All real estate recording and documentary fees payable in connection with the
purchase and sale of the Property shall be paid by Purchaser. Any fee for
closing services which is charged by the Title Company shall be shared equally
by Seller and Purchaser. Except as otherwise expressly provided in this
Agreement, Purchaser and Seller shall pay their own fees and expenses incurred
in the preparation, execution and performance of their respective obligations
under this Agreement.
SECTION 10. APPROVALS, PLANNING, PLATTING AND DEVELOPMENT.
10.1 Seller's Development Obligations - Generally. The Seller shall be
responsible for subdividing and platting the Property and for the Off Site and
On Site Development Work (as hereinafter defined). Prior to the Effective Date,
Seller has furnished Purchaser with a development budget (the "Development
Budget") for all On and Off Site Development Work necessary or required in
connection with the subdivision and platting of the Property (including both
"hard" and "soft" costs). The Development Budget was prepared using the most
accurate information available to Seller at the time of its preparation. In the
event that unforeseen events occur (such as, for example, City imposed
development obligations not currently anticipated in Seller's current
Development Budget) prior to Closing that cause the total amount of the
Development Budget to increase above $300,000.00, Seller may, at its option, so
notify Purchaser, and may elect to by such notice to terminate this Agreement
and all of its obligations hereunder. Upon receipt of such a notice of
termination by Purchaser, this Agreement shall be automatically terminated
without further action by either party. Upon termination, the Title Company
shall immediately return the Earnest Money Deposit to Purchaser.
10.2 Timing of Seller's Development Obligations.
(a) Platting and Concept Plan. On or before ninety (90) days after the
Effective Date, Seller shall complete and submit to the City for its approval
the Concept Plan and the Plat (as hereinafter defined) of the Property. Seller
shall use its reasonable efforts to obtain the City's approval of the Concept
Plan and the Plat.
(b) Development Work. It is anticipated that none of the Development
Work will be completed by Closing. As a consequence, and to assure the Purchaser
that the On Site Development Work will be completed in a timely manner following
the Closing, the parties have agreed that at Closing, and out of the net
proceeds payable to Seller, Seller will place in an escrow an amount equal to
1.2 times the amount arrived at by deducting from $300,000, (i) the face amount
of the Letter of Credit (as described in Section 10.3), and (ii) the amount
Seller has deposited into an escrow created by an "Escrow Agreement" in which
<PAGE>
the parties are the Seller, the Title Company and Dillon Real Estate Co., Inc.,
a Kansas corporation, the terms of which are substantially the same as those set
forth on Exhibit C attached hereto and incorporated herein by reference (the
"Dillon Escrow"). The terms of the escrow agreement between Seller and Purchaser
(the "JH Escrow") shall be substantially as set forth in the Escrow Agreement
("Escrow Agreement") attached hereto as Exhibit C. The date to be inserted in
Paragraph 3 of Exhibit C, shall be seven (7) months after the date of Closing.
In the event that the Dillon Escrow is not created or funded until after the JH
Escrow has been created and funded, Seller shall be permitted, immediately
following the funding of the Dillon Escrow, to withdraw from the JH Escrow an
amount equal to the amount deposited in the Dillon Escrow. In the event that the
actual cost of the Development Work, as evidenced by firm bids from contractors,
exceeds $300,000, Seller shall place into the JH Escrow an amount equal to 1.2
times the amount of such excess. Seller hereby warrants to Purchaser that the
Development Work will be substantially completed not later than seven (7) months
after the date of Closing.
(c) Mechanics Lien Claims. In performing the Development Work, Seller
will keep the Property free and clear of all liens and claims of liens by
contractors, subcontractors, mechanics, laborers, materialmen, and other such
persons ("Mechanics Lien Claims"), and will cause any recorded statement of any
such lien to be released of record within 30 days after the recording thereof.
The Title Insurance Policy issued to Purchaser pursuant to Section 3.2 (a) shall
contain affirmative coverage against Mechanics Lien Claims asserted against the
Property as a consequence of Seller's activities with respect to the Development
Work.
10.3 Off Site Development Work. For purposes of this Agreement, "Off Site
Development Work" shall mean all of the development work to be performed off the
Property and required to be completed by the City as a condition of the City's
approval of the Concept Plan and the Plat, including by way of example and not
limitation, all perimeter curbing along Powers Boulevard and Galley Road, and
all entry ramps into the Center off Galley Road. 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 certain 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 development work on the Property
required to be completed by the City as a condition of the City's approval of
the Concept Plan and the Plat, and the following:
(a) Rough grading of the Property in accordance with the City approved
grading plan (the "Grading Plan").
(b) Construction of private road access to Property per Concept Plan.
(c) Stubbing all utilities to a boundary of 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. On or before ninety (90) days
after the Effective Date, Purchaser shall complete and submit to the City for
its approval, Purchaser's Development Plan for the Property. 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
<PAGE>
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 and any
conditional use request which have been approved by Seller.
10.6 Concept Plan and Platting. Purchaser acknowledges that the Property
must be platted and that governmental authorities will require a concept plan
("Concept Plan"), showing the proposed development within the Center, and a plat
("Plat") of the Property, to be approved in accordance with applicable zoning
laws and City subdivision ordinances. The Concept Plan must be approved by the
City, and the Plat recorded, prior to the issuance of any building permit for
construction of improvements on the Property. Purchaser acknowledges that the
Plat will have to provide for landscaping, utility and drainage easements as
required by the City. Seller shall be responsible for obtaining the City's
approval of the Concept Plan and Plat.
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 a
boundary of the Property, and for installation of fire hydrants in the Center in
accordance with applicable local laws, including building regulations and fire
codes. The size or capacity of the utility lines extended to the Property
boundary shall not be less than the following:
Utility Size or Capacity
------- ----------------
Water Main two inch (2")
Sanitary Sewer four inch (4")
Natural Gas two inch (2")
In addition, Seller will extend electrical service by providing suitably sized
pull wire and conduit. Purchaser shall be responsible for extending such utility
services to the improvements it constructs on the Property and for paying all
tap, line extension and other City imposed charges and fees in connection with
the extension of such utility services to the improvements. Purchaser
acknowledges that the City installs all electric lines and that Purchaser will
be solely responsible for making arrangements with the City's Department of
Utilities to extend electric lines and to provide electrical service to meet the
particular needs of the improvements to be constructed on the Property.
Purchaser will also be responsible for obtaining telephone and cable television
lines and service for the Property. Purchaser acknowledges that the Plat will
have to provide for utility easements as required by the City.
10.9 Streets. Access to the Property will be provided via public and
private streets. Seller shall be responsible for constructing all private and
public access roads within the Center. The access road into the Center off of
Galley Road (the "Street"), will be constructed to meet City street standards.
Purchaser acknowledges that Seller intends to dedicate the Street to the City as
soon as the City is prepared to accept the Street as a City street. Purchaser
shall be solely responsible for constructing all driveways within the boundaries
of Purchaser's Property and all curbs and sidewalks on or adjacent to the
Property required by governmental authorities, except those which are the
Seller's responsibility pursuant to this Agreement.
<PAGE>
10.10 Drainage. Seller shall be responsible for installing, or causing to
be installed, all drainage facilities required by the City outside of the
Property that relate to development on the Property. Purchaser will be solely
responsible for providing all drainage facilities required within the boundaries
of the Property in accordance with the Purchaser's Development Plan, the Plat
and any applicable drainage plans approved by the City. Purchaser acknowledges
the Plat will have to provide for drainage easements as required by the City.
10.11 Park and Drainage Fees. Seller will hold Purchaser harmless from all
requirements and obligations to the City for park fees and drainage fees with
respect to the Property that are required to be paid in conjunction with the
filing and approval of the Plat under ordinances in effect at the time of this
Agreement.
10.12 Purchaser's Approval Rights. Seller shall, at its expense, prepare
and deliver to Purchaser, by not later than ninety (90) days after the Effective
Date, the following:
(a) The Grading Plan;
(b) The proposed Concept Plan;
(c) The proposed Plat;
(d) The CC&R's (as defined in 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 Earnest Money Deposit to Purchaser and neither
party shall have any further obligation hereunder. If Purchaser elects to waive
its Disapproval, the matter objected to shall thereafter be considered approved.
10.13 Cooperation. The Seller and Purchaser shall cooperate with one
another in a reasonable manner to the end that the Closing occurs as
contemplated by this Agreement. All approvals required to be obtained by either
party pursuant to this Agreement shall be sought in a reasonable manner and
acted upon diligently and expeditiously. Whenever the provisions of this
Agreement require one party to obtain the other party's approval, such approval
shall not be unreasonably withheld or delayed. Each party shall use its good
faith efforts to satisfy all the conditions to its performance of this
Agreement.
10.14 Center Signs. Seller will seek City approval for the construction of
a sign to be located at the southeast corner of the Center (the "Center Sign"),
which identifies the Center and provides for additional signage for property
owners within the Center. In the event Seller is able to obtain the City's
approval, Seller shall erect the Center Sign, and Purchaser shall be entitled to
the top 25% of the total signage available on the Center Sign for identification
of the business operated from the Property. Purchaser shall be responsible for
reimbursing Seller for its pro-rata portion of the cost of purchasing and
erecting the Center Sign, and for Purchaser's pro-rata portion of the continuing
costs of lighting, maintenance and repair. For purposes of the preceding
sentence, "pro-rata portion" means the square footage of Purchaser's signage on
the Center Sign compared to the square footage of all signage available on said
sign for owners or tenants of property within the Center.
<PAGE>
SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. On or before the date set forth in Section 10.12, Seller
shall deliver to Purchaser at Seller's expense, the proposed covenants,
conditions and restrictions (the "CC&R's") which Seller intends to place on the
Center, 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) Incorporate, as part of the property covered thereunder, the
Property.
(b) Contain a prohibition that, for so long as the Property is
utilized primarily for the sale of "fast food" hamburgers through a facility
that includes a "drive-through" order and pick-up service, no other portion of
the Center shall be used for the sale of "fast food" hamburgers through a
facility that includes a "drive-through" order and pick-up service (such as, for
example, a McDonalds or a Burger King), provided, however, that such restriction
shall not prevent other property in the Center from being used for the conduct
of a "sit down" restaurant business without a "drive-through" that sells
hamburgers as its primary menu item (such as, for example, Gunther Toody's) or
which sells hamburgers as one of the selections from its menu (such as, for
example, Denny's), and further provided, that such restriction shall not prevent
other property in the Center from being used primarily for the conduct of a
"fast food" restaurant with a "drive-through" which does not sell hamburgers,
such as chicken or ethnic foods (such as, for example, Kentucky Fried Chicken or
Taco Bell).
(c) Provide that any private roadways shall be governed by the CC&R's
and each property owner within the Center shall pay it's proportionate share of
expenses (as set forth in the CC&R's) which shall be allocated among those
property owners owning platted lots within any phase of the development that has
been incorporated in the CC&R's currently being served by the roads and
services.
(d) Contain provisions allowing the Seller to "phase" the development
of the property within the Center.
(e) Contain provisions allowing the Seller to approve all plans and
specifications for any improvements to be constructed on any property within the
Center, and development plan for or plat of any property within the Center.
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. POSSESSION. Possession of the Property shall be delivered to
Purchaser at Closing, subject to Seller's right of access to the Property to
perform its On and Off Site Development Work and other obligations pursuant to
the terms of this Agreement.
SECTION 13. NAME AND LOGO. Except for directional and location
identification purposes, neither the name "Creekside 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.
<PAGE>
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 in
writing 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 Earnest Money Deposit to Purchaser and neither party shall have any
further obligation hereunder. If Purchaser does not exercise its option to
terminate as provided in this Section, the Agreement shall continue in full
force and effect. In such event, the Purchase Price shall be paid by Purchaser
at Closing without reduction, but Seller shall remit to Purchaser all awards
received by Seller as a result of the condemnation.
SECTION 15. DEFAULT AND REMEDIES. In the event of default by either party
under this Agreement, Purchaser and Seller agree as follows:
15.1 Default by Purchaser. If Purchaser shall default in the performance of
its obligations hereunder, Seller's sole and only remedy shall be to terminate
this Agreement and to retain the Earnest 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 Earnest Money Deposit, or (b)
enforce this Agreement through an action for specific performance and damages.
Purchaser and Seller hereby agree that if Purchaser elects to recover damages
from Seller, Purchaser's damages shall not exceed $50,000, and Purchaser hereby
waives its right to recover damages from Seller in excess of such amount,
including without limitation any loss of profits, consequential damages,
punitive damages or any other damages or losses suffered by Purchaser in
connection with this Agreement.
SECTION 16. BROKERS. Seller represents and warrants to Purchaser that,
other than Highland Commercial Group, LLC ("Broker"), who is acting as a
transactional broker with respect to the sale contemplated by this Agreement, no
other 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 eight percent (8%) 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 Earnest Money Deposit
if retained by Seller. Purchaser represents and warrants to Seller that no
broker or finder has been engaged by Purchaser in connection with any of the
transactions contemplated by this Agreement. Purchaser further represents that
no person or entity, other than Broker, claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Purchaser because of such transactions. Each party agrees to
hold the other party harmless from and against any and all costs, expenses,
claims, losses or damages, including reasonable attorneys' fees, resulting from
any breach of the representations and warranties contained in this Section.
SECTION 17. ASSIGNMENT. Purchaser shall not have the right to assign all or
any part of its interest or rights under this Agreement without the prior
written consent of Seller, except for an assignment to an affiliate. For
purposes hereof, "affiliate" means any person or entity which controls, is
controlled by, or is under common control with, the Purchaser. A person or
entity shall be deemed to have control of another person or entity if such
person or entity directly or indirectly or acting in concert with one or more
persons and/or entities, or through one or more subsidiaries, owns, controls or
holds with power to vote more than 15 percent of the voting shares or rights of
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.
<PAGE>
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:
Bishop Powers, Ltd.
c/o Bishop Capital Corporation
716 College View Drive
Riverton, WY 82501
Attn: Robert Thrailkill
Phone: (307) 856-3800
If intended for Purchaser, to:
JH Foods, Ltd.
4830 Rusina Road, Suite D
Colorado Springs, CO 80907
Attn: Jim Hafemeister
with a copy in each case to:
Flynn McKenna Wright & Karsh, llc
Plaza of the Rockies, Suite 202
111 South Tejon
Colorado Springs, Co 80903
Attn: R. Tim McKenna
and a copy in each case to:
Thomas M. Haskins, III
Gentry & Haskins LLP
Suite 220
102 North Cascade
Colorado Springs, CO 80903
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.
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.
<PAGE>
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 October _____, 1999. 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.
This Agreement for the Purchase and Sale of Commercial Real Estate has been
executed as of the date first written above.
SELLER:
Bishop Powers., Ltd.
By: Bishop Capital Corporation, its general partner
By: /s/ Robert E. Thrailkill
----------------------------
Its: President
--------------
PURCHASER:
JH Foods, Ltd., a Colorado limited partnership
By: HAF Foods, Inc., a Colorado corporation,
its General Partner
By: /s/ James Hafemeister
-------------------------
Its: President
--------------
<PAGE>
AGREEMENT OF BROKER
The undersigned, as Broker hereunder, acknowledges and agrees that Section 16 of
the foregoing Agreement correctly sets forth the understanding and agreement
between Broker, Seller and Purchaser relating to the payment of a commission
resulting from the sale of the Property.
BROKER:
Highland Commercial Group, LLC
By: /s/ James E. Spittler, Jr.
------------------------------
Its: Member
-----------
<PAGE>
EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Map of Center
<PAGE>
EXHIBIT B
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Map of Property
<PAGE>
EXHIBIT C
to
Agreement for the Purchase and
Sale of Commercial Real Estate
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is executed this ____ day of ____________, 1999, by
and among Bishop Powers, Ltd., a Colorado limited partnership ("Bishop"), JH
Foods, Ltd., a Colorado limited partnership ("JH Foods, Ltd.") and Lawyers Title
Insurance Company ("Escrow Agent").
RECITALS
A. JH Foods, Ltd. and Bishop entered into a certain Agreement for the
Purchase and Sale of Commercial Real Estate dated _______, 1999 (the
"Contract"), whereby Bishop agreed to sell to JH Foods, Ltd., and JH Foods, Ltd.
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 JH Foods, Ltd.'s purchase of the Property,
Bishop agreed to install certain on site improvements and off site improvements.
C. Some or all of the on site improvements ("On Sites") listed on Exhibit B
have not been completed or paid to date. However, the parties nonetheless desire
to close the transaction provided for in the Contract.
D. To ensure that the On Sites will be completed and paid for in a timely
manner, JH Foods, Ltd. and Bishop have agreed to close on the date hereof and
Bishop has agreed to deposit with Escrow Agent, pursuant to the terms of this
Escrow Agreement, the sum of $___________ (the "Funds").
E. The Closing shall be completed today, and the Escrow Agent shall hold
the Funds to disburse the Funds post-closing pursuant to the terms of this
Escrow Agreement.
NOW THEREFORE, in consideration for their mutual covenants herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Closing; The Account. The Closing shall be completed forthwith and
immediately thereafter Escrow Agent shall deposit the Funds in an interest
bearing account at a federally chartered financial institution, the deposits of
which are insured by the Federal Deposit Insurance Corporation, which should be
designated as "Lawyers Title Insurance Company on behalf of Bishop Powers, Ltd."
(the "Account"). Interest accruing on the Account shall retained in the Account
until disbursed in accordance with this Escrow Agreement.
<PAGE>
2. Disbursements to Bishop.
a. The parties acknowledge that disbursements from the Account to
Bishop shall be made with respect to the On Site line items in Exhibit B. Thus,
Bishop will only be entitled to receive the amount set forth in Exhibit B for a
given On Site line item, subject to Subparagraph f. below, and any greater costs
incurred for that On Site line item shall be Bishop's sole responsibility;
b. Prior to any disbursements being made to Bishop, Bishop or a
development manager designated in writing by Bishop, shall submit a certificate
and demand for payment ("Certificate") to Escrow Agent at the address set forth
on the signature page of this Escrow Agreement. The Certificate shall set forth,
by line item, the type of On Sites for which work has been done, the extent to
which each has been completed, the amount of payment (based on Exhibit B) that
is being demanded for each On Site line item, the total disbursement amount
being requested and whether the Certificate is a final disbursement request;
c. Bishop may request payment of the amount expended for any On Site
line item, provided however, that if during the term of this Escrow Agreement
the amount requested by Bishop for an On Site line item, together with all
previously advanced amounts for that On Site line item, exceeds the amount shown
on Exhibit B for such On Site line item, Escrow Agent shall only disburse to
Bishop the amount designated on Exhibit B for that On Site line item;
d. After confirming that payments for any particular On Site line item
have not exceeded the amount provided in Exhibit B, Escrow Agent shall promptly
disburse the requested amount from the Account. Each disbursement shall be in
the form of a lien waiver check from Escrow Agent and shall be made payable
jointly to the contractor performing the work and Bishop;
e. Bishop shall only submit disbursement Certificates to Escrow Agent
twice each month, but shall be permitted to submit one final Certificate at any
time to handle any previously unsubmitted On Site costs. Each Certificate shall
contain all previously unsubmitted On Site costs which have been incurred by
Bishop to date; and,
f. If Bishop installs all of the On Sites (rather than JH Foods, Ltd.)
and funds are remaining in the Account following Bishop's final Certificate
amounts, Escrow Agent shall then disburse all remaining amounts to Bishop.
3. Default by Bishop - JH Foods, Ltd.'s Completion. If all On Sites have
not been completed by ___________, 200_, JH Foods, Ltd. may notify Escrow Agent,
and following the giving of such notice, may itself complete the On Site
improvements, and draw on the remaining Funds held by the Escrow Agent in
accordance with the procedures set forth in Section 2 hereinabove.
4. Termination of Escrow. This Escrow shall terminate upon completion of
all the On Site Improvements, or by written agreement of Bishop and JH Foods,
Ltd..
5. Amendments. No changes or modifications shall be effected in the terms
of this Escrow Agreement except by written instrument signed by Bishop and JH
Foods, Ltd.. Escrow Agent shall not be obligated to honor or act upon any
communications or notices received from Bishop or JH Foods, Ltd. 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.
<PAGE>
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 Bishop and JH Foods, Ltd. as to
such performance. If Escrow Agent is unable to obtain such understanding, it may
bring an interpleader or declaratory judgment action in the District Court of El
Paso County to resolve the questions as to which it is uncertain. Bishop and JH
Foods, Ltd. hereby agree for themselves to the jurisdiction of the District
Court of El Paso County, for the purposes of such an action.
8. Indemnification. JH Foods, Ltd. and Bishop 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.
BISHOP POWERS, LTD.
_ Bishop Capital Corporation
716 College View Drive
Riverton, WY 82501
By: Bishop Capital Corporation, its General Partner
By:________________________________
JH FOODS, LTD.
4830 Rusina Road, Suite D
Colorado Springs, CO 80907
By: HAF Foods, Inc., a Colorado corporation,
its General Partner
By: ______________________________________
LAWYERS TITLE INSURANCE COMPANY
555 East Pikes Peak Avenue
Colorado Springs, CO 80903
By:________________________________
<PAGE>
EXHIBIT A
to
Escrow Agreement
LEGAL DESCRIPTION
Lot __ in the Creekside Center, Filing No. __, in the City of Colorado Springs,
El Paso County, Colorado
<PAGE>
EXHIBIT B
to
Escrow Agreement
ON SITE IMPROVEMENTS
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-END> SEP-30-1999
<CASH> 13,068
<SECURITIES> 862,338
<RECEIVABLES> 38,894
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 955,591
<PP&E> 290,375
<DEPRECIATION> 130,882
<TOTAL-ASSETS> 2,517,033
<CURRENT-LIABILITIES> 515,407
<BONDS> 0
0
0
<COMMON> 8,784
<OTHER-SE> 1,763,485
<TOTAL-LIABILITY-AND-EQUITY> 2,517,033
<SALES> 21,244
<TOTAL-REVENUES> 21,244
<CGS> 18,270
<TOTAL-COSTS> 253,112
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 21,172
<INCOME-PRETAX> (156,565)
<INCOME-TAX> (55,700)
<INCOME-CONTINUING> (100,865)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (100,865)
<EPS-BASIC> (.12)
<EPS-DILUTED> (.12)
</TABLE>
