2a. Agreement for ConveyanceCity of Kalispell
Post Office Box 1997 • Kalispell, Montana 59903-1997 • Telephone (406) 758-7700 • FAX (406) 758-7758
REPORT TO: The Honorable Mayor Boharski and City Council
FROM: Susan Moyer, Community Development Director
Chris A. Kukulski, City Manager
SUBJECT: Agreement For Conveyance of Real Property And Escrow Instructions
MEETING DATE: February 7, 2000
BACKGROUND: This document has been drafted by Glen Neier and Hugh Boss and reviewed by Mae Nan
Ellingson.. The purpose of this document is to state the obligations and rights of the
American Capital Group, LLC (the Seller) and the City of Kalispell (the "Buyer") and
constitutes escrow instructions to Alliance Title & Escrow Corp. (the "Escrow").
RECOMMENDATION: The City Council approve the City Manager to sign the document.
FISCAL EFFECTS: The indirect impact of creating 500 full time jobs will definitely help to
strengthen our economy and spur economic growth.
ALTERNATIVES: As suggested by the Council.
Respectfully submitted,
Susan Moyer, Moyer, Director Chris A. Kukulski
Community Development City Manager
Report compiled February 7, 2000
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AGREEMENT FOR CONVEYANCE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS
(A Portion of the Gateway West Mall, Kalispell, Montana)
THIS AGREEMENT FOR CONVEYANCE OF REAL PROPERTY AND ESCROW
INSTRUCTIONS (the "Agreement") is made and entered into as of the 71 day of February, 2000
(the "Effective Date") by and between American Capital Group, LLC, a California limited liability
company (the "Seller"), the City of Kalispell, Montana, a municipal corporation (the "Buyer"), and
constitutes escrow instructions creating an escrow (the "Escrow') with Alliance Title & Escrow
Corp., a corporation (the "Escrow Holder"), based upon the following facts:
A. Seller has certain rights to acquire certain real property (the "Total Real Property')
located in the City of Kalispell, County of Flathead (the "County"), State of Montana more
particularly described on Exhibit A hereto, and the improvements located thereon (the "Total
Improvements") (the Total Real Property and the Total Improvements, collectively, the "Total
Property") commonly known as the Gateway West Mall.
B. Provided that Seller (or an affiliate of Seller) acquires the Total Property, Seller
desires to sell that portion of the Total Real Property more particularly described on Exhibit B hereto
(the "Real Property's and the Total Improvements located thereon (the "Improvements"} (the Real
Property and the Improvements, collectively, the "Property") to Buyer, and Buyer desires to
purchase the Property from Seller, all on the terms and conditions contained herein.
Based on the foregoing, and in consideration of the mutual promises contained below and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Convevance of the Pro e�rty. Subject to the terms and conditions contained
herein, Seller agrees to convey the Property to Buyer, and Buyer agrees to purchase the Property
from Seller, on the Close of Escrow (as defined below).
2. Purchase Price. The purchase price for the Property (the "Purchase Price")
shall be $2,500,000.
3. Terms of Purchase. The Purchase Price shall be payable by Buyer to Seller
in cash through Escrow at the Close of Escrow.
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4. Close of Escrow.
As used in this Agreement, the term "Close of Escrow" means the date of
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recordation of the Deed in the Official Records of the County. It is contemplated by the parties to
this Agreement that Escrow shall close on or before March 8, 2000 (the "Scheduled Closing Date").
Buyer and Seller agree to perform diligently their obligations hereunder which are conditions to such
closing in a timely manner. In the event Escrow shall fail to close by the Scheduled Closing Date,
Escrow Holder, upon the demand of either party who has otherwise fully complied with its
obligations hereunder, shall return all documents and money deposited by such party in this Escrow
and terminate this Escrow. In the event of a failure of any condition precedent to the Close of
Escrow, Escrow Holder, upon the demand of either party whose obligations hereunder are subject
to the satisfaction of such condition who has otherwise fully complied with its obligations hereunder,
shall return all documents and money deposited by such party in this Escrow and terminate this
Escrow; if such party has not then so complied, no such demand shall be recognized until five days
after Escrow Holder shall have given written notice of the demand to the other party. If no demand
is made, this Escrow shall close as soon thereafter as possible after all conditions to closing have
been satisfied. Notwithstanding the provisions of this paragraph, no termination of Escrow by either
party pursuant to this paragraph shall constitute a waiver of any rights the terminating party may
have as a result of a breach by the other party of its obligations hereunder.
5. Conditions to Buyer's Obligations to Close. In addition to any other
conditions to Buyer's obligations contained elsewhere in this Agreement, Buyer shall not be
obligated to close this Escrow unless and until each of the following conditions is satisfied, all of
which, being solely for Buyer's benefit, may be waived by Buyer in a writing delivered to Escrow
Holder (with a copy to Seller):
(a) Seller shall have acquired title to the Total Property.
(b) Buyer shall have entered into a lease of the Property with Stream
International on terms acceptable to Buyer.
(c) Buyer and Seller shall have approved the terms of covenants,
conditions, and restrictions (the "CC&Rs") governing the relationship between the Property and the
balance of the Total Property, pursuant to which the Buyer will be obligated to pay its appropriate
share of common area costs, taxes, insurance, maintenance, and capital improvements. The CC&Rs
will also identify the location to be utilized for employee parking relative to the Property, it be
understood that the location of this parking will be designed to minimize the affect on tenants and
customers of the balance of the Total Property.
(d) Buyer and Seller shall have entered into a mutually satisfactory
development agreement (the "Development Agreement's relative to the Total Property and any
additional property as may be acquired by Seiler.
(e) Seller shall have timely delivered into Escrow or to Buyer all
documents required to be delivered by it pursuant to the terms of this Agreement.
(f) Seller's representations and warranties contained in this Agreement
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shall be true and correct as of the Close of Escrow in all material respects.
(g) The Property shall have been constituted as a separate legal parcel for
all purposes.
(h) Buyer shall have been issued a policy of title insurance (the "Title
Insurance Policy') with liability in the amount of $2,500,000 showing marketable title to the
Property vested in Buyer.
(i) Prior to Close of Escrow, the Property shall not have suffered any
material casualty or other material destruction.
6. Conditions to Seller's Obligations to Close. In addition to any other
conditions to Seller's obligations contained elsewhere in this Agreement, Seller shall not be obligated
to close this Escrow unless and until each of the following conditions is satisfied, all of which, being
solely for Seller's benefit, may be waived by Seller in a writing delivered to Escrow Holder (with
a copy to Buyer):
(a) Seller shall have acquired title to the Total Property.
(b) Buyer shall have entered into a lease of the Property with Stream
International on terms acceptable to Buyer.
(c) Buyer and Seller shall have approved the CC&Rs.
(d) Buyer and Seller shall have entered into the Development Agreement
(e) The Property shall have been constituted as a separate legal parcel for
all purposes.
(f) Subject to rights granted by Buyer to the Flathead County Economic
Development Authority to acquire the Property, Buyer and Seller shall have executed a mutually
acceptable agreement (the "First Refusal' granting Seller a right of first refusal in connection with
any proposed sale of the Property by Buyer.
(g) Buyer shall have timely delivered into Escrow or to Buyer all
documents required to be delivered by it pursuant to the terms of this Agreement.
(h) Buyer's representations and warranties contained in this Agreement
shall be true and correct as of the Close of Escrow in all material respects.
(i) Prior to Close of Escrow, the Property shall not have suffered any
material casualty or other material destruction.
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7. Deliveries to Escrow Holder.
(a) Seller hereby covenants and agrees to deliver or cause to be delivered
to Escrow Holder on or prior to the Close of Escrow the following instruments and documents, the
delivery of each of which shall be a condition to the Close of Escrow and the failure of delivery of
which shall be a default by Seller hereunder:
(i) A grant deed (the "Deed"), duly executed and acknowledged
in recordable form by Seller in favor of Buyer, for the conveyance to Buyer of fee title to the
Property.
(ii) A certificate duly executed by Seller certifying that Seller is
not a "foreign person" as that term is defined in internal Revenue Code Section 1445(o and
comparable provisions of state law.
(iii) Such proofof Seller's authority and authorization to enter into
this Agreement and the transactions contemplated hereby, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf
of Seller to act for and bind Seller, as reasonably may be required by Buyer.
(b) Buyer hereby covenants and agrees to deliver or cause to be delivered
to Escrow Holder on or prior to the Close of Escrow the following instruments and documents and
funds, the delivery of each of which shall be a condition to the Close of Escrow and the failure of
delivery of which shall be a default of Buyer hereunder:
(i) The Purchase Price in accordance with Paragraph 3, together
with any closing costs, charges and prorations payable by Buyer under this Agreement.
(h) Such proof ofBuyer's authority and authorization to enter into
this Agreement and the transactions contemplated hereby, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf
of Buyer to act for and bind Buyer, as reasonably may be required by Seller.
8. Instructions to Escrow Holder Regarding Recordation and Delivery. When
all conditions precedent to the Close of Escrow have been satisfied or waived as provided herein,
Escrow Holder shall perform the following:
(a) Cause the Deed, the CC&Rs, the Development Agreement, the First
Refusal and any other documents as are required to be recorded, to be recorded in the Official
Records of the County;
(b) Deliver the Purchase Price (less prorations provided for herein and
charges payable by Seller hereunder), to Seller,
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(c) Deliver any proration and other amounts payable to Buyer, if any
(less charges payable by Buyer hereunder), to Buyer.
(d) Issue to Buyer the Title Insurance Policy.
9. Costs and Ex ep nses.
(a) Upon the Close of Escrow, one half of Escrow Holder's escrow fee
shall be paid by Seller. One half of Escrow Holder's escrow fee, the cost of any title insurance Buyer
may elect to obtain, and the cost of any survey necessary to constitute the Property as a separate legal
parcel, shall be paid by Buyer. Any other closing costs shall be allocated between Buyer and Seller
in accordance with customary escrow practice in the County.
(b) Each party shall pay its own legal fees and expenses incidental to the
execution of this Agreement and the consummation of the transactions contemplated hereby.
(c) In the event of a failure of Escrow to close as a result of a failure of
any condition contained herein to be satisfied, approved, or waived as provided herein, all costs shall
be bome by the parties as provided in Paragraph 9(a) above.
10. Prorations.
(a) There shall be prorated as between Buyer and Seller as of the Close
of Escrow (a) real and personal property taxes and special assessments, if any, (b) utilities, (c)
common area and similar charges, and (e) all items of revenue and expense relative to the Property,
all based upon information supplied by Seller and approved by Buyer.
(b) Following the Close of Escrow, Buyer and Seller shall reprorate real
and personal property taxes based upon any property tax bills received following the Close of Es-
crow and any other items as may be required to effectuate the intent of the parties that all items be
accurately and fairly prorated as of the Close of Escrow.
11. Notices. Any notice, request, demand, instruction or other document to be
given hereunder or pursuant hereto shall be in writing and (i) personally delivered, or (ii) delivered
by facsimile transmission, or (iii) delivered by a nationally recognized courier service, or (iv) sent
by registered or certified mail, postage prepaid, return receipt requested, as follows:
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If to Seller, to: American Capital Group LLC
115 S. La Cumbre Lane, Suite 302
Santa Barbara, California 93105
Attn: Mr. James S. Taylor and
Mr. Hugh M. Boss
Fax No.: (805) 682-8393
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If to Buyer, to: City Manager
City of Kalispell
312 11 Avenue East
P. O. Box 1997
Kalispell, Montana 59903
Attn: Mr. Chris Kukulski
Fax No.: (406) 758-7771
If to Escrow
Holder, to: Alliance Title & Escrow Corp.
501 South Main
Kalispell, Montana 59901
Attn: Debbie Pierce
Fax No.: (406) 756-7064
Notice shall be deemed to have been delivered only upon receipt by, or (as respects notices by
United States mail) 72 hours after deposit in the United States mail as provided above addressed to,
each addressee provided for above to whom a copy of such notice is to be given; provided, however,
that prior to Close of Escrow any notices to Escrow Holder shall not be deemed delivered until
actually received. The addresses and addressees for purposes of this paragraph may be changed to
any other address or addressee in the continental United States by giving written notice of such
change in the manner provided herein for giving notices. Unless and until such written notice is
delivered, the last address and addressee stated by written notice, or provided herein if no written
notice of change has been delivered, shall be deemed to continue in effect for all purposes hereunder.
12. Escrow Holder's Standard Provisions. Escrow Holder's standard provisions
attached hereto as Exhibit C. to the extent not inconsistent with the other terms and provisions here-
of, are incorporated herein by this reference.
MATTERS OF NO CONCERN TO ESCROW HOLDER
As matters of agreement between the parties with which Escrow Holder need not be
concerned, Buyer and Seller, in addition to the agreements set forth above, agree as follows:
13. Rearegentations. Warranties, and Covenants of Buyer. Buyer hereby
represents and warrants to and covenants with Seller that, as of the Opening of Escrow:
(a) Neither the execution nor the delivery of this Agreement, the
incurrence of the obligations herein set forth, the consummation of the transactions herein
contemplated, nor the compliance with the terms of this Agreement will conflict with, or result in
abreach of any of the terms, conditions orprovisions of, or constitute a default under, any bond, note
or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which Buyer is a party or by which Buyer may
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be bound.
(b) Buyer has been duly organized and is validly existing and in good
standing as a municipal corporation under the laws of the State of Montana. The execution and the
performance of this Agreement have been duly authorized by all requisite governmental action, and
the individual or individuals executing this Agreement on behalf of Buyer have the right, power,
legal capacity and authority to execute and enter into this Agreement on behalf of Buyer and to
execute all other documents and perform all other acts as may be necessary in connection with the
performance of this Agreement.
(c) Except as expressly provided herein, no approval or consent not
heretofore obtained by any person or entity is necessary in connection with the execution of this
Agreement by Buyer or the performance of Buyer's obligations under this Agreement.
14. Representations. Warranties, and Covenants of Seller. Seller hereby
represents and warrants to and covenants with Buyer that, as of the Opening of Escrow:
(a) Neither the execution nor the delivery of this Agreement, the
incurrence of the obligations herein set forth, the consummation of the transactions herein
contemplated, nor the compliance with the terms of this Agreement will conflict with, or result in
a breach of any of the terms, conditions or provisions of, or constitute a default under, any bond, note
or other evidence or indebtedness or any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which Seller is a party or by which Seller or
the Property may be bound.
(b) Seller has been duly organized and is validly existing and in good
standing as a limited liability company in the State of California. The execution and the
performance of this Agreement have been duly authorized by all requisite limited liability company
action, and the individual or individuals executing this Agreement have the right, power, legal
capacity and authority to execute and enter into this Agreement on behalf of Seller and to execute
all other documents and perform all other acts as may be necessary in connection with the
performance of this Agreement.
(c) Except as expressly provided herein, no approval or consent not
heretofore obtained by any person or entity is necessary in connection with the execution of this
Agreement by Seller or the performance of Seller's obligations under this Agreement.
15. AS -IS PURCHASE. BUYER'S EXECUTION OF THIS AGREEMENT
SHALL CONSTITUTE BUYER'S ACKNOWLEDGMENT AND AGREEMENT THAT BUYER
HAS EXAMINED AND APPROVED ALL THINGS CONCERNING THE PROPERTY, AND
ALL OTHER RIGHTS AND OBLIGATIONS TO BE ACQUIRED OR ASSUMED BY BUYER
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, (i) ALL MATTERS PERTAINING TO
THE CONDITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, THE
PRESENCE OF HAZARDOUS MATERIALS WITHIN, UNDER OR UPON, OR IN THE
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VICINITY OF, THE PROPERTY), (ii) THE TOPOGRAPHY AND GEOLOGY OF THE
PROPERTY, (iii) THE CONDITION OF THE SOIL AND GROUNDWATER OF THE
PROPERTY, (iv) THE CONDITION OF TITLE TO THE PROPERTY, (v) COMPLIANCE OF
THE PROPERTY AND ITS USES WITH APPLICABLE LAWS AND REGULATIONS
(INCLUDING, WITHOUT LIMITATION, LAWS AND REGULATIONS GOVERNING THE
HANDLING, TRANSPORTATION, MANUFACTURE, STORAGE, USE, TREATMENT,
DISPOSAL OR DISCHARGE OF HAZARDOUS MATERIALS), (vi) COMPLIANCE OF THE
PROPERTY WITH ALL COVENANTS, CONDITIONS AND RESTRICTIONS (WHETHER OR
NOT RECORDED), (vii) THE LOCATION, COST, AVAILABILITY AND CAPACITY OF, AND
ALL OTHER MATTERS PERTAINING TO, UTILITIES AND SANITARY FACILITIES FOR
THE PROPERTY, (viii) ALL MATTERS PERTAINING TO ANY ASSESSMENT OR LOCAL
IMPROVEMENT DISTRICTS AFFECTING THE PROPERTY, AND (ix) THE SUITABILITY
OF THE PROPERTY FOR ITS CURRENT OR INTENDED USES. BUYER ACKNOWLEDGES
AND AGREES THAT (i) IT IS PURCHASING THE PROPERTY AND ALL OTHER RIGHTS
TO BE ACQUIRE? BY BUYER HEREUNDER "AS -IS" (INCLUDING, WITHOUT
LIMITATION, SUBJECT TO ALL LATENT AND PATENT DEFECTS AND THE PRESENCE
OF ANY AND ALL HAZARDOUS MATERIALS) AS OF THE CLOSE OF ESCROW AND
BASED ON ITS OWN INSPECTION, INVESTIGATION AND EVALUATION; (ii) NEITHER
SELLER NOR ANY AGENT OR OTHER REPRESENTATIVE OF SELLER HAS, EXCEPT AS
SET FORTH IN THIS AGREEMENT, MADE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, CONCERNING THE PROPERTY OR ANY RIGHTS TO BE
ACQUIRED BY BUYER HEREUNDER, OR WHICH HAS INDUCED BUYER TO EXECUTE
THIS AGREEMENT OR ANY OTHER AGREEMENT RELATED TO THE TRANSACTIONS
CONTEMPLATED HEREUNDER; AND (W) EXCEPT AS SET FORTH IN THIS AGREEMENT,
ALL SUCH REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY DISCLAIMED BY
SELLER. WITHOUT LMTING THE GENERALITY OF THE FOREGOING, BUYER AGREES
THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY
OF ANY KIND WITH REGARD TO (i) THE CONTENT OR ACCURACY OF ANY
APPRAISAL, STUDY, SURVEY, REPORT, OPINION OR CONCLUSION OF ANY ENGINEER,
ACCOUNTANT OR OTHER PERSON OR ENTITY (WHETHER OR NOT THE SAME IS
PROVIDED BY SELLER TO BUYER), OR (ii) THE CONTENT OR ACCURACY OF ANY
OTHER MATERIAL GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH
RESPECT TO THE PROPERTY. AS USED IN THIS AGREEMENT, THE TERM -HAZARD-
OUS MATERIALS" MEANS ANY HAZARDOUS OR TOXIC SUBSTANCE, MATERIAL OR
WASTE (INCLUDING, WITHOUT LIMITATION, PETROLEUM, PETROLEUM PRODUCTS,
ASBESTOS AND ANY SUBSTANCE, MATERIAL, WASTE OR OTHER MATTER WHICH IS
DESIGNATED AS HAZARDOUS, TOXIC OR HARMFUL, OR SIMILARLY DESIGNATED,
UNDER ANY FEDERAL, STATE OR LOCAL LAWS, ORDINANCES, RULES,
REGULATIONS OR CODES). NOTHING CONTAINED IN THIS PARAGRAPH 15,
HOWEVER, SHALL CONSTITUTE A WAIVER BY BUYER OF ANY OF BUYER'S
CONDITIONS TO CLOSING CONTAINED IN THIS AGREEMENT.
16. Possession. Seller shall deliver possession of the Property to Buyer at the
Close of Escrow.
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17. Brokers and Finders. Each party agrees to indemnify and hold the other
harmless from and against any loss, damage, or expense resulting from any claim by any person,
firm or corporation based upon their having acted as a broker or finder for or in connection with the
transactions contemplated by this Agreement for or at the request of such indemnifying party.
18. Attorneys, Fees. Should any litigation be commenced between the parties
hereto concerning this Agreement or the subject matter hereof or the rights and duties of the parties
in relation hereto or thereto, the party prevailing in such litigation (whether at trial or on appeal) shall
be entitled, in addition to such other relief as may be granted, to its costs and expenses of suit,
including without limitation a reasonable sum as and for its attorneys` fees in such litigation, which
shall be determined by the court in such litigation or in a separate action brought for that purpose.
19. Further Action. The parties each agree to execute such further documents and
escrow instructions and to take such further action as may be necessary or desirable to effectuate the
intents and purposes of this Agreement and consummate the transactions contemplated herein.
20. Entire Agreement. This Agreement and the exhibits hereto contain the entire
agreement between the parties respecting the Property and the conveyance thereof and all other
matters contemplated by this Agreement, and any other agreements respecting the Property or the
conveyance thereof or the rights or the duties of the parties in relation thereto not expressly set forth
in this Agreement and the exhibits hereto (including without limitation any "letters of intent" or
similar documents previously entered into between Buyer and Seller) are null and void and
superseded in their entirety by this Agreement.
21. Counterparts. This Agreement (as well as any amendments hereto) may be
executed in any number of counterparts, each of which when executed shall be an original and all
of which together shall constitute one and the same Agreement.
22. Survival. All of the representations and warranties of each party contained
herein shall survive the Close of Escrow and the recordation of the Deed.
23. Governing Law. This Agreement is executed and delivered in the State of
Montana and shall be construed and enforced in accordance with, and governed by, the laws of the
State of Montana.
24. Construction. Whenever the context of this Agreement so requires, the
singular number shall include the plural, and the masculine, feminine and neuter genders shall
include the other or others. The headings of this Agreement are for purposes of reference and
convenience only and shall not limit or otherwise affect the meaning hereof.
25. Successors and Assigns. This Agreement shall be binding upon, enforceable
by and shall inure to the benefit of the successors and assigns of the parties hereto. Buyer
acknowledges that prior to Close of Escrow Seller will assign its rights hereunder to an affiliate of
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Seller. Such assignment shall not relieve Seller of its obligations hereunder.
26. Ti=. Time is of the essence of this Agreement and each provision of this
Agreement.
27. Covenants and Conditions. Each provision of this Agreement performable
by Seller or Buyer shall be both a covenant and a condition.
28. Amendments. Any amendment to this Agreement shall be in writing and
executed by both Buyer and Seller.
29. Risk of Loss. All loss or damage to the Property by any cause is assumed by
the Seller through the Close of Escrow, and after the Close of Escrow is assumed by the Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for
Conveyance of Real Property and Escrow Instructions as of the day and year first above written.
SELLER:
AMERICAN CAPITAL GROUP, LLC,
a California limited liability company
The City of Kalispell, Montana, a municipal
corporation
LIM
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ACCEPTANCE
The undersigned, the Escrow Holder pursuant to the foregoing Agreement, acknowledges
receipt of a copy of the Agreement and agrees to be bound by the terms thereof.
Alliance Title & Escrow Corp., a corporation
Authorized Signatory
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