COMMERCIAL
CONTRACT TO BUY AND SELL REAL ESTATE
June 1, 1998
1. PARTIES AND PROPERTY, Pacific Aero Manufacturing, Inc. and or
assigned, BUYER(S) [Buyer], (as joint tenants/tenants in common) agrees to
buy, and the undersigned seller(s) [Seller], agrees to sell, on the terms and
conditions set forth in this contract, the following described real estate in
the County of Pueblo, Pueblo, Colorado, to wit: Building and land of
approximately 25.26 acres.
known as No. 00000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, together with all
interest of Seller in vacated streets and alleys adjacent thereto, all
easements and other appurtenances thereto, all improvements thereon and all
attached fixtures thereon, except as herein excluded (collectively the
Property).
2. INCLUSIONS/EXCLUSIONS. The purchase price includes the following
items (a) if attached to the Property on the date of this contract: lighting,
heating, plumbing, ventilating, and air conditioning fixtures, TV antennas,
water softeners, smoke/fire/burglar alarms, security devices, inside telephone
wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom
systems, built-in kitchen appliances, sprinkler systems and controls; (b) if
on the Property whether attached or not on the date of this contract: storm
windows, storm doors, window and porch shades, awnings, blinds, screens,
curtain rods, drapery rods, all keys and (c) None
The above-described included items (Inclusions) are to be conveyed to Buyer by
Seller by xxxx of sale at the closing, free and clear of all taxes, liens and
encumbrances, except as provided in Section 12. The following attached
fixtures are excluded from this sale: None
3. PURCHASE PRICE AND TERMS. The purchase price shall be $475,000.00,
payable in U.S. dollars by Buyer as follows:
a) Cash at Closing.
$475,000.00, plus closing costs, to be paid by Buyer at closing in funds
which comply with all applicable Colorado laws, which include cash, electronic
transfer funds, certified check, savings and loan teller's check, and
cashier's check (Good Funds). Subject to the provisions of Section 4, if the
existing loan balance at the time of closing shall be different from the loan
balance in Section 3, the adjustment shall be made in Good Funds at closing or
paid as follows:
4. FINANCING CONDITIONS AND OBLIGATIONS.
a) Loan Application(s). If Buyer is to pay all or part of the purchase
price as set forth in Section 3 by obtaining a new loan or if an existing loan
is not to be released at closing, Buyer, if required by such lender, shall
make written application within calendar days from acceptance of this
contract. Buyer shall cooperate with Seller and lender to obtain loan
approval, diligently and timely pursue same in good faith, execute all
documents and furnish all information and documents required by the lender,
and subject to Section 3, timely pay the costs of obtaining such loan
or lender consent.
b) Loan Approval. If Buyer is to pay all or part of the purchase price
by obtaining a new loan as specified in Section 3, this contract is
conditional upon lender's approval of the new loan on or before October 31,
1998. If not so approved by said date, this contract shall terminate.
5. APPRAISAL PROVISION. (Check only one box.) This Section 5
Shall _______ Shall not apply _______.
If this Section 5 applies, as indicated above, Buyer shall have the sole
option and election to terminate this contract if the purchase price exceeds
the Property's valuation determined by an appraiser engaged by Buyer. The
contract shall terminate by the Buyer causing the Seller to receive written
notice of termination and a copy of such appraisal or written notice from
lender which confirms the Property's valuation is less than the purchase
price, on or before September 30, 1998 (Appraisal Deadline). If Seller does
not receive such written notice of termination on or before the appraisal
deadline, Buyer waives any right to terminate under this section.
6. COST OF APPRAISAL. Cost of any appraisal to be obtained after the
date of this contract shall be timely paid by Buyer.
7. NOT ASSIGNABLE. This contract shall not be assignable by Buyer
without Seller's prior written consent. Except as so restricted, this
contract shall inure to the benefit of and be binding upon the heirs, personal
representatives, successors and assigns of the parties.
8. EVIDENCE OF TITLE. Seller shall furnish to Buyer, at Seller's
expense, either a current commitment for owner's title insurance policy in an
amount equal to the purchase price or at Seller's choice, an abstract of title
certified to a current date, on or before September 30, 1998 (Title
Deadline). If a title insurance commitment is furnished, Buyer may require of
Seller that copies of instruments (or abstracts of instruments) listed in the
schedule of exceptions (Exceptions) in the title commitment also be furnished
to Buyer at Seller's expense. This requirement shall pertain only to
instruments shown of record in the office of the clerk and recorder of the
designated county or counties. The title insurance commitment, together with
any copies or abstracts of instruments furnished pursuant to this Section 8,
constitute the title documents (Title Documents). Buyer, or Buyer's designee,
must request Seller, in writing, to furnish copies or abstracts of instruments
listed in the schedule of exceptions no later than 30 calendar days after
Title Deadline. If Seller furnishes a title commitment, Seller will pay the
premium at closing and have the title insurance policy delivered to Buyer as
soon as practicable after closing.
9. TITLE.
(a) Title Review. Buyer shall have the right to inspect the Title
Documents or abstract. Written notice by Buyer of unmerchantability of title
or of any other unsatisfactory title condition shown by the Title Documents or
abstract shall be signed by or on behalf of Buyer and given to Seller on or
before 30 calendar days after Title Deadline, or within (5) calendar days
after receipt by Buyer of any Title Document(s) or endorsement(s) adding new
Exception(s) to the title commitment together with a copy of the Title
Document adding new Exception(s) to title. If Seller does not receive Buyer's
notice by the date(s) specified above, Buyer accepts the condition of the
title as disclosed by the Title Documents as satisfactory.
(b) Matters Not Shown by the Public Records. Seller shall deliver to
Buyer, on or before the Title Deadline set forth in Section 8, true copies of
all lease(s) and survey(s) in Seller's possession pertaining to the Property
and shall disclose to Buyer all easements, liens or other title matters not
shown by the public records of which Seller has actual knowledge. Buyer shall
have the right to inspect the Property to determine if any third party(s) has
any right in the Property not shown by the public records (such as an
unrecorded easement, unrecorded lease, or boundary line discrepancy). Written
notice of any unsatisfactory condition(s) disclosed by Seller or revealed by
such inspection shall be signed by or on behalf of Buyer and given to Seller
on or before September 30, 1998. If Seller does not receive Buyer's notice by
said date, Buyer accepts title subject to such rights, if any, of third
parties of which Buyer has actual knowledge.
(c) Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL
TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SU
CH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX
BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE
RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS
WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT
FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF
SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH
INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
In the event the Property is located within a special taxing district and
Buyer desires to terminate this contract as a result, if written notice is
given to Seller on or before the date set forth in subsection 9(b), this
contract shall then terminate. If Seller does not receive Buyer's notice by
the date specified above, Buyer accepts the effect of the Property's inclusion
in such special taxing district(s) and waives the right to so terminate.
(d) Right to Cure. If Seller receives notice of unmerchantability of
title or any other unsatisfactory title condition(s) as provided in subsection
(a) or (b) above, Seller shall use reasonable effort to correct said
unsatisfactory title condition(s) prior to the date of closing. If Seller
fails to correct said unsatisfactory title condition(s) on or before the date
of closing, this contract shall then terminate; provided, however, Buyer may,
by written notice receive by Seller, on or before closing, waive objection to
said unsatisfactory title condition(s).
10. INSPECTION. (Not Applicable)
11. DATE OF CLOSING. The date of closing shall be December 1, 1998, or
by mutual agreement at an earlier date. The hour and place of closing shall
be designated by Buyer.
12. TRANSFER OF TITLE. Subject to tender or payment at closing as
required herein and compliance by Buyer with the other terms and provisions
hereof, Seller shall execute and deliver a good and sufficient Warranty Deed
to Buyer, on closing, conveying the Property free and clear of all taxes
except the general taxes for the year of closing, and except: None
. Title shall be conveyed free and clear of all liens for special
improvements installed as of the date of Buyer's signature hereon, whether
assessed or not; except (i) distribution utility easements (including cable
TV), (ii) those matters reflected by the Title Documents accepted by Buyer in
accordance with subsection 9(a), (iii) those rights, if any, of third parties
in the Property not shown by the public records in accordance with subsection
9(b), (iv) inclusion of the Property within any special taxing district, and
(v) subject to building and zoning regulations.
13. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall
be paid at or before closing from the proceeds of this transaction or from any
other source.
14. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shall pay,
in Good Funds, their respective closing costs and all other items required to
be paid at closing, except as otherwise provided herein. Buyer and Seller
shall sign and complete all customary or required documents at or before
closing. Fees for real estate closing shall not exceed $500.00 and shall be
paid at closing by 50% by Seller and 50% by Buyer. The State dock fee of 1%
per $1,000.00 of the purchase price shall be paid at closing by Buyer. Any
sales and use tax that may accrue because of this transaction shall be paid
when due by Buyer.
15. PRORATIONS. General taxes for the year of closing, based on taxes
for the calendar year immediately preceding closing, rents, water and sewer
charges, owner's association dues, and interest on continuing loan(s), if any,
and shall be prorated to date of closing.
16. POSSESSION. Possession of the Property shall be delivered to Buyer
as follows: Seller shall continue to lease said property to Buyer at current
monthly rate until closing.
If Seller, after closing, fails to deliver possession on the date herein
specified, Seller shall be subject to eviction and shall be additionally
liable to Buyer for payment of $200.00 per day from the date of agreed
possession until possession is delivered.
17. CONDITION AND DAMAGE TO PROPERTY. Except as otherwise provided in
this contract, the Property and Inclusions shall be delivered in the condition
existing as of the date of this contract, ordinary wear and tear excepted. In
the event the Property shall be damaged by fire or other casualty prior to
time of closing, in an amount of not more than ten percent of the total
purchase price, Seller shall be obligated to repair the same before the date
of closing. In the event such damage is not repaired within said time or if
the damages exceed such sum, this contract may be terminated at the option of
Buyer. Should Buyer elect to carry out this contract despite such damage,
Buyer shall be entitled to credit for all the insurance proceeds resulting
from such damage to the Property and Inclusions, not exceeding, however, the
total purchase price. Should any Inclusion(s) or service(s) fail or be
damaged between the date of this contract and the date of closing or the date
of possession, whichever shall be earlier, then Seller shall be liable for the
repair or replacement of such Inclusion(s) or service(s) with a unit of
similar size, age and quality, or an equivalent credit, less any insurance
proceeds received by Buyer covering such repair and replacement.
18. TIME OF ESSENCE/REMEDIES. Time is of the essence hereof. If any
note or check received as xxxxxxx money hereunder or any other payment due
hereunder is not paid, honored or tendered when due, or if any other
obligation hereunder is not performed or waived as herein provided, there
shall be the following remedies:
a) IF BUYER IS IN DEFAULT:
(1) Specific Performance.
Seller may elect to treat this contract as cancelled, in which case
all payments and things of value received hereunder shall be forfeited and
retained on behalf of Seller, and Seller may recover such damages as may be
proper, or Seller may elect to treat this contract as being in full force and
effect and Seller shall have the right to specific performance or damages, or
both.
(b) IF SELLER IS IN DEFAULT:
Buyer may elect to treat this contract as cancelled, in which case
all payments and things of value received hereunder shall be returned and
Buyer may recover such damages as may be proper, or Buyer may elect to treat
this contract as being in full force and effect and Buyer shall have the right
to specific performance or damages, or both.
(c) COSTS AND EXPENSES.
Anything to the contrary herein notwithstanding, in the event of any
arbitration or litigation arising out of this contract, the arbitrator or
court shall award to the prevailing party all reasonable costs and expenses,
including attorney fees.
19. XXXXXXX MONEY DISPUTE. Notwithstanding any termination of this
contract, Buyer and Seller agree that, in the event of any controversy
regarding the xxxxxxx money and things of value held by broker or closing
agent, unless mutual written instructions are received by the holder of the
xxxxxxx money and things of value, broker or closing agent shall not be
required to take any action but may await any proceeding, or at broker's or
closing agent's option and sole discretion, may interplead all parties and depos
it any moneys or things of value into a court of competent jurisdiction and
shall recover court costs and reasonable attorney fees.
20. ALTERNATIVE DISPUTE RESOLUTION: MEDIATION. If a dispute arises
relating to this contract, and is not resolved, the parties and broker(s)
involved in such dispute (Disputants) shall first proceed in good faith to
submit the matter to mediation. The Disputants will jointly appoint an
acceptable mediator and will share equally in the cost of such mediation. In
the event the entire dispute is not resolved within thirty (30) calendar days
from the date written notice requesting mediation is sent by one Disputant to
the other(s), the mediation, unless otherwise agreed, shall terminate. This
section shall not alter any date in this contract, unless otherwise agreed.
21. ADDITIONAL PROVISIONS:
This Contract is contingent on the Buyer obtaining a satisfactory
mortgage loan at Buyers sole discretion.
This Contract is subject to the attached Rider.
22. RECOMMENDATION OF LEGAL COUNSEL. By signing this document,
Buyer and Seller acknowledge that the Selling Company or the Listing Company
has advised that this document has important legal consequences and has
recommended the examination of title and consultation with legal and tax or
other counsel before signing this contract.
23. TERMINATION. In the event this contract is terminated, all
payments and things of value received hereunder shall be returned and the
parties shall be relieved of all obligations hereunder, subject to Section 19.
24. SELLING COMPANY BROKER RELATIONSHIP. The selling
broker, None, and its salespersons have been engaged as. Selling Company has
previously disclosed in writing to the Buyer that different relationships are
available which include buyer agency, seller agency, subagency, or
transaction-broker.
25. NOTICE TO BUYER. Any notice to Buyer shall be effective when
received by Buyer, or, if this line is checked when received by
Selling Company.
26. NOTICE TO SELLER. Any notice to Seller shall be effective when
received by Seller or Listing Company.
27. MODIFICATION OF THIS CONTRACT. No subsequent modification of any
of the terms of this contract shall be valid, binding upon the parties, or
enforceable unless made in writing and signed by the parties.
28. ENTIRE AGREEMENT. This contract constitutes the entire contract
between the parties relating to the subject hereof, and any prior agreements
pertaining thereto, whether oral or written, have been merged and integrated
into this contract.
29. NOTICE OF ACCEPTANCE: COUNTERPARTS. This proposal shall expire
unless accepted in writing, by Buyer and Seller, as evidenced by their
signatures below, and the offering party receives notice of such acceptance on
or before _______________________, 19___ (Acceptance Deadline). If accepted,
this document shall become a contract between Seller and Buyer. A copy of
this document may be executed by each party, separately, and when each party
has executed a copy thereof, such copies taken together shall be deemed to be
a full and complete contract between the parties.
________________________________________
Buyer: Pacific Aero Manufacturing, Inc.
By: Xxxxxx Xxxxxxxxxx, President
Date of Buyer's signature: June 1, 1998
Buyer's Address 00000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
________________________________________
Seller: Stevia Company, Inc.
By: Xxxx Suzuki, President
________________________________________
Seller: Stevia Company, Inc.
By: Xxxxxx X. Xxxxx, Secretary
Date of Seller's signature: June 9, 1998
Seller's Address: 0000 X. Xxxxx, Xxx Xxxxx Xxxxxxx, XX 00000
RIDER
This Rider is to that certain Commercial Contract to Buy and Sell Real
Estate ("Contract"), dated June 1, 1998 by and between Pacific Aero
Manufacturing, Inc. ("Buyer") and Stevia Company, Inc. ("Seller").
The Seller and Buyer hereby execute this Rider as an addition to the
Contract:
1. Seller shall deliver $5,000 upon execution of the Contract and shall
deliver an additional $10,000 upon satisfaction or waiver of the financing
contingency as xxxxxxx money and part payment of the purchase price to be held
by Katz, Karacic, Xxxxxx & Addis, P.C., as escrowee, in its trust account on
behalf of both Seller and Buyer. The escrowee is authorized to deliver the
xxxxxxx money deposit to the closing agent, if any, at or before closing, or
upon closing directly to the Seller, who shall then credit the Buyer with such
xxxxxxx money, or return the xxxxxxx money to the Buyer pursuant to the terms
of the Contract.
The remaining portion of the purchase price ($450,000.00) shall be paid
at closing subject to the terms of the Contract.
2. Section 4(b) shall be revised to state that approval for the loan
shall be received on or before July 31, 1998.
3. Section 5 shall be amended to provide that the appraisal of the
Property shall be completed on or before July 31, 1998, and notice of
termination of the Contract shall be received on or before July 31, 1998, or
such condition is waived.
4. The title commitment referenced in Section 8 will be delivered to the
Buyer thirty days prior to closing.
5. With respect to Section 12, title will be subject to all rules and
regulations of the Federal Aviation Administration, the Pueblo County Airport
Authority, and all other local, state and federal authorities and governmental
agencies.
6. The additional provision in Section 21 should be rewritten to read as
follows:
This Contract is contingent on the Buyer obtaining a mortgage loan in the
amount of $400,000.00 or such lesser amount as acceptable to Buyer, with an
interest rate of not more than 1.5 % over the bank prime rate, and points or
other commitment fees of not more than 1.5% on or before July 31, 1998.
7. It is acknowledged by the parties hereto that the Buyer is currently
leasing the property from the Seller. In the event the transactions
contemplated in the Contract do not close on or before December 1, 1998 (which
date may be extended by agreement of the parties), the Buyer and Seller agree
to extend the term of that certain Lease Agreement dated September 1, 1993 by
and between the Buyer and Seller for an additional two years, or August 31,
2000, subject to the following changes:
(a) The annual rent shall be$28,820.00, or $2,401.66 per month, such
increase to be effective December 1, 1998.
(b) The base year for impositions under Section 5.0 shall remain 1992.
8. Seller's obligations under the Contract shall be contingent upon
approval by Seller's Board of Directors and shareholders, if necessary, or
receipt by Seller of an order of court authorizing the sale of the Property on
or before October 31, 1998. In the event Seller is unable to obtain such
approval or a court order for the sale of the Property, this Contract shall be
null and void, and the xxxxxxx money returned to Buyer.
9. Notwithstanding anything in the Contract or this Rider to the
contrary, in the event of a conflict between the terms of this Rider and the
Contract, the terms of this Rider shall control.
Executed this _______ day of ______________________, 1998.
BUYER:
PACIFIC AEROMANUFACTURING, INC.
BY: ______________________________________
Xxxxxx Xxxxxxxxxx, President
SELLER:
STEVIA COMPANY, INC.
___________________________________________
Xxxx X. Suzuki, President
ATTEST:
By: _________________________________________
Xxxxxx X. Xxxxx, Secretary
