Exhibit 10.20
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 12, 2000 ("Effective Date")
between Bishop Powers, Ltd., a Colorado limited partnership ("Seller") and
Waffle House, Inc., ("Purchaser"), upon the basis of the following facts:
RECITALS
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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 has been
subdivided into four lots ("Phase I"). Purchaser desires to purchase from Seller
one of the lots. Purchaser proposes to use the Property (as hereinafter defined)
for a Waffle House Restaurant ("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 34,525 square
feet of real property described on Exhibit B attached hereto 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).
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $350,000.00 (the "Purchase Price"), adjusted as
provided in Section 3.2(c). The Purchase Price will be paid by Purchaser in the
following manner:
2.1 Earnest Money Deposit. Purchaser has deposited the sum of $10,000.00 in
the form of a stand-by letter of credit acceptable to Seller, 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").
2.2 Funds at Closing. At Closing, Purchaser shall pay to Seller the entire
Purchase Price 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, and the Amended
CC&R's referred to in Section 11 hereinafter (the "Permitted Exceptions").
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"):
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(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 34,525 square feet, then the Purchase Price shall be increased or decreased
at the rate of $10.18 per square foot for every square foot by which the area of
the Property exceeds or is less than 34,525 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 fifteen (15) 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. 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.
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.
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
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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.
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.
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(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
Purchaser's ability to enter into or consummate this Agreement.
SECTION 6. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
6.1 As Is. Except as specifically set forth in Sections 5,10, 11 and 16 of
this Agreement:
(a) Purchaser acknowledges and agrees that Seller has not made, does
not make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (i) the value, nature, quality
or condition of the Property, including, without limitation, the water, soil and
geology; (ii) the income to be derived from the Property; (iii) the suitability
of the Property for any and all activities and uses which Purchaser may conduct
thereon; or, (iv) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property; and Seller
specifically disclaims any representations regarding compliance with any
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of asbestos or any hazardous substance, as
defined by the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and regulations promulgated thereunder.
(b) Purchaser further acknowledges and agrees that having been given
the opportunity to inspect the Property, Purchaser is relying solely on its own
investigation of the Property and not on any information provided or to be
provided by Seller or Broker other than information referred to in this
Agreement.
(c) Purchaser further acknowledges and agrees that any information
provided or to be provided by or on behalf of Seller with respect to the
Property was obtained from a variety of sources and that Seller has not made any
independent investigation or verification of such information and makes no
representations as to the accuracy or completeness of such information.
(d) Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person.
(e) Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults.
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that all of the Property is sold by Seller and purchased
by Purchaser subject to the foregoing.
6.2 Radon. The Colorado Department of Health and the United States
Environmental Protection Agency ("EPA") have detected elevated levels of
naturally occurring radon in structures in the Colorado Springs area. EPA has
raised concerns with respect to adverse effects on human health of long-term
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property. Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or 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
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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) Provided that Purchaser has timely submitted Purchaser's
Development Plan as required by the provisions of Section 10.5 hereinafter, the
City has approved Purchaser's Development Plan.
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.
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. Subject to the Purchaser's right to extend the date (as
set forth in Section 8.4 hereinafter), the closing of the purchase and sale of
the Property (the "Closing") shall occur twenty (20) calendar days following the
City's approval of Purchaser's Development Plan. The Closing shall occur at the
offices of the Title Company. In the event that the City has not approved
Purchaser's Development Plan and Closing has not occurred on or before one
hundred ten (110) days after the Effective Date ("Termination Date"), then
either party may, upon giving of written notice to the other, elect to terminate
this Agreement. Upon receipt of such a notice of termination by the other party
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.
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.
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(b) A statement which reflects the settlements and prorations provided
for in Section 9.
(c) The Escrow Agreement.
(d) Such other documents that may be necessary to carry out the
purposes of this Agreement.
8.3 Seller's Obligations at Closing. Seller shall execute and deliver the
following to Purchaser at Closing:
(a) A Special Warranty Deed conveying the Property to Purchaser,
subject only to the Permitted Exceptions.
(b) A FIRPTA Affidavit.
(c) Such affidavits, instruments or agreements that may be required by
the Title Company in its issuance of the policy of title insurance pursuant to
the Title Commitment.
(d) A statement which reflects the settlements and prorations provided
for in Section 9.
(e) The Escrow Agreement.
(f) Such other documents that may be necessary to carry out the
purposes of this Agreement.
8.4 Purchaser's Right to Extend Closing. In the event Purchaser,
notwithstanding its reasonable good faith efforts, has not received City
approval of its Development Plan, Purchaser shall have the right to extend the
Termination Date described in Section 8.1 herein above (the "Original
Termination Date") for an additional period of 30 calendar days (the "First
Extended Termination Date") by giving written notice to Seller (the "First
Extension Notice") on or before a date that is five (5) days prior to the
Original Termination Date. In the event Purchaser, notwithstanding its
reasonable good faith efforts, has not received City approval of Purchaser's
Development Plan, Purchaser shall have the right to extend the First Extended
Termination Date for an additional period of 30 calendar days (the "Second
Extended Termination Date") by giving written notice to Seller (the "Second
Extension Notice") on or before a date that is five (5) days prior to the First
Extended Termination Date.
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.
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
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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 has
subdivided and platted Phase 1, including the Property, and Seller shall be
responsible for the Off Site and On Site Development Work (as hereinafter
defined). Seller has established a development budget of $405,000.00 (the
"Development Budget") for all On and Off Site Development Work necessary or
required as a consequence the subdivision and platting of Phase 1 (including
both "hard" and "soft" costs).
10.2 Timing of Seller's Development Obligations. It is anticipated that
some of the Development Work may not be completed by Closing. If the Development
Work is not completed by Closing, 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 the amount arrived at by deducting from
$405,000.00:
(a) the face amount of the Letter of Credit (as described in Section
10.3), and
(b) the amount Seller has deposited into an escrow created by an
"Escrow Agreement" in which 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"), and,
(c) the amount Seller has deposited into an escrow created by an
"Escrow Agreement" in which the parties are the Seller, the Title Company and JH
Foods, Ltd., a Colorado limited partnership, the terms of which are
substantially the same as those set forth on Exhibit C attached hereto and
incorporated herein by reference (the "JH Escrow").
The terms of the escrow agreement between Seller and Purchaser (the "Waffle
House 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 JH Escrow is not created or funded until after the Waffle
House Escrow has been created and funded, Seller shall be permitted, immediately
following the funding of the JH Escrow, to withdraw from the Waffle House Escrow
an amount equal to the amount deposited in the JH Escrow.
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, has required Seller 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").
(b) Construction of private road access to Property per Concept Plan.
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(c) Stubbing all utilities to the Property pursuant to City Utility
Department specifications.
10.5 Purchaser's Development Plan. Purchaser acknowledges that the City
will require a development plan ("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 sixty (60) days after
the Effective Date, Purchaser shall have completed and submitted to the City for
its approval, Purchaser's Development Plan for the Property. Purchaser
acknowledges that in accordance with the provisions of the Amended CC&R's (as
hereinafter defined), Seller has certain approval rights, including the right to
approve development plans prior to their submission to the City. Before
submitting any Purchaser's Development Plan for the Property to the City,
Purchaser shall submit Purchaser's Development Plan to Seller for approval in
accordance with the CC&R's. Sellers shall have seven (7) days after receipt of
Purchaser's Development Plan within which to approve or disapprove such plan,
and if Seller does not notify Purchaser of the disapproval within said seven (7)
days, the plan shall be deemed approved. Purchaser shall not permit any
development plan to become final and binding on the Property or Seller until
after Closing. Purchaser shall be solely responsible for obtaining the City's
approval of Purchaser's Development Plan, and Seller will cooperate with
Purchaser's efforts to obtain the City's approval of Purchaser's Development
Plan as approved by Seller. 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. Purchaser's failure to first obtain Seller's
approval of Purchaser's Development Plan and thereafter submit Purchaser's
Development Plan to the City for approval by no later than sixty (60) days after
the Effective Date shall constitute a material default hereunder, allowing the
Seller to exercise all remedies for default provided for in this Agreement.
10.6 Reserved.
10.7 Seller's Post Plating Responsibilities. 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.
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 be typical for Purchaser's use and shall be stubbed
into the Property from mains that 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.
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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.
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.
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
fifteen (15) days after the Effective Date, the following:
(a) The Grading Plan;
(b) The Concept Plan;
(c) The Plat;
(d) The CC&R Amendment (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.
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SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. There is recorded, at Reception No. 200039029 of the
records of El Paso County, Colorado, a Declaration of Covenants, Conditions and
Restrictions for The Crossing at Palmer Park Center ("the CC&R's"). On or before
the date set forth in Section 10.12, Seller shall deliver to Purchaser at
Seller's expense, an amendment (the "CC&R Amendment") to the CC&R's which Seller
intends to place on the Property. Purchaser acknowledges that the Property will
be conveyed subject to the CC&R's, as amended by the CC&R Amendment (the
"Amended CC&R's"). In addition to other matters, the Amended CC&R's shall:
(a) Incorporate, as part of the property covered thereunder, the
Property.
(b) Provide that any private roadways shall be governed by the
CC&R's and each property owner within the Center shall pay it's proportionate
share of expenses which shall be allocated among those property owners owning
platted lots within any phase of the development that has been incorporated in
the CC&R's currently being served by the roads and services.
(c) Contain provisions allowing the Seller to "phase" the
development of the property within the Center.
(d) Contain provisions allowing the Seller to approve all plans
and specifications for any improvements to be constructed on any property within
the Center, and development plan for or plat of any property within the Center.
(e) Contain a prohibition that, for so long as the Property is
utilized primarily for a full-service, family-style, sit-down, breakfast
restaurant, no other portion of the Center shall be used primarily for a
full-service, family-style, sit-down, breakfast restaurant, provided, however,
that such restriction shall not prevent other property in the Center from being
used primarily for the conduct of restaurant operations that are different than
those described above such as, by way of example and not limitation, restaurants
that offer liquor services, emphasize other than breakfast menus, or are open
primarily for dinner or evening meals. Examples of restaurant operations that
would be prohibited by the foregoing restriction are Dennys, Village Inn, IHOP,
COCO's, and Perkins. Examples of the types of restaurant not falling with in the
above restriction are Texas Steakhouse, TGI Friday's, Chicago's, Applebee's,
Outback, Macaroni Grill and any "fast food" establishment such as McDonald's ,
Wendy's, Burger King, Carl's Jr., and Taco Bell.
Purchaser shall have the right to approve the Amended CC&R's in accordance with
the procedures set forth in Section 10.12.
11.2 Other Development. Purchaser acknowledges that Seller has made no
representations or warranties to Purchaser concerning the development of any
other property adjacent to or in the vicinity of the Property on which Purchaser
has relied.
SECTION 12. 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
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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:
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 Sullivan Hayes Brokerage
Corporation (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
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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
If intended for Purchaser, to:
Waffle House Inc.
5986 Financial Drive
Norcross, GA 30071
Attn: Walter Barineau
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
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.
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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 __________, 2000. 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]
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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 9/12/00
------------------------------
Robert E. Thrailkill
President
PURCHASER:
Waffle House Inc.
By: /s/ Walter E. Barineau 9/8/00
----------------------------
Walter E. Barineau
Real Estate Rep.
14
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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.
----------------------------------
James E. Spittler, Jr.
Principal
Sullivan Hayes Brokerage Corporation
By:
-----------------------------------
15
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EXHIBIT A
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Map of Center
16
<PAGE>
EXHIBIT B
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Legal Description of Property
Lot 3 in the Creekside Center, Filing No. 1, in the City of Colorado Springs,
El Paso County, Colorado
17
<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"), Waffle
House, Inc., a Georgia corporation ("Waffle") and Lawyers Title Insurance
Company ("Escrow Agent").
RECITALS
A. Waffle and Bishop entered into a certain Agreement for the Purchase and
Sale of Commercial Real Estate dated _______, 2000 (the "Contract"), whereby
Bishop agreed to sell to Waffle, and Waffle 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 Waffle'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, Waffle 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.
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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 Waffle) 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 - Waffle's Completion. If all On Sites have not been
completed by ___________, 200_, Waffle 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 Waffle.
5. Amendments. No changes or modifications shall be effected in the terms
of this Escrow Agreement except by written instrument signed by Bishop and
Waffle. Escrow Agent shall not be obligated to honor or act upon any
communications or notices received from Bishop or Waffle 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.
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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 Waffle 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
Waffle hereby agree for themselves to the jurisdiction of the District Court of
El Paso County, for the purposes of such an action.
8. Indemnification. Waffle 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:________________________________
WAFFLE HOUSE, INC.,
---------------------------
----------------------, -------
By:________________________________
LAWYERS TITLE INSURANCE COMPANY
555 East Pikes Peak Avenue
Colorado Springs, CO
80903
By:________________________________
20
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EXHIBIT A
to
Escrow Agreement
LEGAL DESCRIPTION
Lot 3 in the Creekside Center, Filing No. 1, in the City of Colorado Springs,
El Paso County, Colorado
21
<PAGE>
EXHIBIT B
to
Escrow Agreement
ON SITE IMPROVEMENTS
22
