CONTRACT TO BUY AND SELL REAL ESTATE
(COMMERCIAL)
Date: November 17, 2000
1. AGREEMENT. Buyer agrees to buy and the undersigned Seller agrees to sell
the Property defined below on the terms and conditions set forth in this contract.
2. DEFINED TERMS.
a. Buyer. Buyer, ELDORADO ARTISIAN SPRINGS, INC. a Colorado
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corporation will take title to the real property described below as G Joint
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Tenants G Tenants in Common G Other__corporation _.
b. Property. The Property is the following legally described real estate:
Xxx 0X, Xxxxx 0,
Xxx Xxxx at Colorado Tech Center
In the County of Boulder, Colorado, commonly know as Vacant Land
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together with the interests, easements, rights, benefits, improvements and
attached fixtures appurtenant thereto, all interest of Seller in vacated streets
and alleys adjacent thereto, except as herein excluded.
c. Dates and Deadlines.
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Item No. Reference Event Date or Deadline
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1 ss. 5a Loan Application Deadline November 17, 2000
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2 ss. 5b Loan Commitment December 8, 2000
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3 ss. 5c Buyer's Credit Information N/A
Deadline
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4 ss. 5c Disapproval of Buyer's N/A
Credit Deadline
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5 ss. 5d Existing Loan Documents N/A
Deadline
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6 ss. 5d Objection to Existing Loan N/A
Deadline
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7 ss. 5d Approval of Loan Transfer N/A
Deadline
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8 ss. 6a Appraisal Deadline December 8, 2000
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9 ss. 7a Title Deadline November 17, 2000
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10 ss. 7a Survey Deadline N/A
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11 ss. 7b Document Request Deadline with commitment
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12 ss. 8a Title Objection Deadline November 17, 2000
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13 ss. 8b Off-Record Matters Deadline November 17, 2000
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14 ss. 8b Off-Record Matters November 17, 2000
Objection Deadline
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15 ss. 10 Seller's Property N/A
Disclosure Deadline
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16 ss. 10a Inspection Objection N/A
Deadline
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17 ss. 10b Resolution Deadline N/A
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18 ss. 11 Closing Date See Addendum
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19 ss. 16 Possession Date Upon Closing
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20 ss. 16 Possession Time Upon Closing
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21 ss. 28 Acceptance Deadline Date November 17, 2000
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22 ss. 28 Acceptance Deadline Time 5:00 P.M.
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d. Attachments. The following exhibits, attachments and addenda are a part of
this contract:
Addendum to Contract
e. Applicability of Terms. A check or similar xxxx in a box means that such
provisions is applicable. The abbreviation "N/A" means not applicable.
3. INCLUSIONS AND EXCLUSIONS.
a. The purchase price includes the following items (Inclusions):
(1) Fixtures. Lighting, heating, plumbing, ventilating, and
air conditioning fixtures, inside telephone wiring and connecting blocks/jacks,
plants, mirrors, floor coverings, intercom systems, sprinkler system and
controls; and improvements to be constructed as detailed on the plans and
specifications referred to in the Addendum to this Contract.
(2) Other Inclusions. If on the Property whether attached or
not on the date of this contract: storm windows, storm doors, window and porch
shares, awnings blinds, screens, window coverings, curtain rods, drapery rods,
storage sheds, and all keys. Check applicable box(es) if included: 1/28
Smoke/Fire Detectors, 1/28 Security Systems; and
(3) Trade Fixtures. With respect to trade fixtures, Seller
and Buyer agree as follows:
b. Instruments of Transfer. The Inclusions are to be conveyed at
Closing free and clear of all taxes, liens and encumbrances, except as provided
inss. 12. Conveyance shall be by xxxx of sale or other applicable legal
instrument(s).
c. Exclusions. The following attached fixtures are excluded from
this sale:
4. PURCHASE PRICE AND TERMS. The Purchase Price set forth below shall
be payable in U.S. Dollars by Buyer as follows:
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Item No. Reference Item Amount Amount
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1 ss. 4 Purchase Price $3,200,000.00 $3,200,000.00
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2 ss. 4a Xxxxxxx Money 320,000.00
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3 ss. 4b New Loan $2,880,000.00
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4 ss. 4c Assumption Balance
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5 ss. 4d Seller or Private
Financing
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6 ss. 4e Cash at Closing
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7 TOTAL $3,200,000.00 $3,200,000.00
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x. Xxxxxxx Money. The Xxxxxxx Money set forth in this Section, in
the form of collected funds, is part payment of the Purchase Price and shall be
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payable to and held by Seller, in its trust account, on behalf of both Seller and
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Buyer. The parties authorize delivery of the Xxxxxxx Money deposit to the
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Closing Company, if any, at or before Closing.
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b. New Loan. Buyer shall obtain a new loan set forth in this
Section and as follows:
XXXX Convention 1/28 Other ____________. This loan will be
secured by a ___ first ___ (1st, 2nd, etc.) deed of trust.
The total loan amount, not in excess of $2,880,000.00, shall be amortized
over a period of _____ years at approximately $________ per month including
principal and interest not to exceed ____% per annum, plus, if required by
Buyer's lender, a monthly deposit of 1/12 of the estimated annual real estate
taxes and property insurance premium. If the loan is an adjustable interest rate
or graduated payment loan, the monthly payments and interest rate initially shall
not exceed the figures set forth above.
Loan discount points, if any, shall be paid to lender at Closing and shall
not exceed 0% of the total loan amount. Notwithstanding the loan's interest
rate, loan discount points shall be paid by Buyer.
Buyer shall timely pay Buyer's loan cost and a loan origination fee not to
exceed 3% of the loan
amount.
c. Assumption. Buyer agrees to assume and pay an existing loan in the
approximate amount of the Assumption Balance set forth in this Section, presently
payable at $____________ per month including principal, interest presently at
______% per annum, and also including escrow for the following as indicated:
1/28 Real Estate taxes, 1/28 Property Insurance Premium. And
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Buyer agrees to pay a loan transfer fee not to exceed $______________. At
the time of assumption, the new interest rate shall not exceed _______% per annum
and the new monthly payment shall not exceed $____________ principal and
interest, plus escrow, if any. If the actual principal balance of the existing
loan at Closing is less than the Assumption Balance, which causes the amount of
cash required from Buyer at Closing to be increased by more than $__________,
then 1/28 Buyer May Terminate this contract effective upon receipt by Seller of
Buyer's written notice of termination or 1/28
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Seller 1/28 Shall 1/28 Shall Not be released from liability on said loan.
If applicable, compliance with the requirements for release from liability shall
be evidenced by delivery at Closing of appropriate letter of commitment from
lender. Cost payable for release of liability shall be paid by __________ in an
amount not to exceed $ ____________.
d. Seller or Private Financing. Buyer agrees to execute a promissory note
payable to ______________________- as 1/28 Joint Tenants____________ 1/28 Tenants
in Common __________1/28 Other____________________________________, on the note
form as indicated: 1/28 (UCCC - No Default Rate) NTD 82-3-95 1/28 (Default Rate)
NTD 81-11-83 1/28 Other_____________secured by a _________(1st, 2nd, etc.) deed
of trust encumbering the Property, using the form as indicated: 1/28 Strict Due
on Sale (TD 72-7-96) 1/28 Credit worthy (TD 73-7-96) 1/28 Assumable ___________
Not Due on Sale (TD 74-7-96) 1/28 Other__________________ Buyer 1/28 Shall
1/28 Shall Not execute and deliver, at Closing, a Security Agreement and UCC-1
Financing Statement granting the holder of the promissory note a
_____________(1st, 2nd etc.) lien on the personal property included in this sale.
The promissory note shall be amortized on the basis of __________ 1/28 years
________1/28 months, principal and accrued interest shall be due and payable
______ after Closing. Payments 1/28 Shall 1/28 Shall Not be increased by 1/12 of
estimated annual real estate taxes, and 1/28 Shall_______1/28 Shall Not___be
increased by 1/12 of estimated annual property insurance premium. The loan shall
also contain the following terms: if any payment is not received within _______
calendar days after its due date, a late charge of ________% of such monthly
payment shall be due. Interest on lender disbursements under the deed of trust
shall be ______% per annum. Default interest rate shall be _______% per annum.
Buyer may prepay without a penalty except ______________________.
Buyer 1/28 Shall ___1/28Shall Not provide a mortgagee's title insurance
policy, at Buyer's expense.
e. Cash at Closing. All amounts paid by Buyer at Closing
including Cash at Closing, plus Buyer's closing costs, shall be 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).
5. FINANCING CONDITIONS AND OBLIGATIONS.
a. Loan Application. If Buyer is to pay all or part of the
Purchase price 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 by Loan Application Deadline (ss.2c). 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 lender, and, subject toss.4, timely pay the costs of obtaining such
loan or lender consent. Buyer agrees to satisfy the reasonable requirements of
lender, and shall not withdraw the loan or assumption application, nor
intentionally cause any change in circumstances which would prejudice lender's
approval of the loan application or funding of the loan.
b. Loan Commitment. If Buyer is to pay all or part of the
Purchase Price by obtaining a new loan as specified inss.4b, this contract is
conditional upon Buyer obtaining a written loan commitment including, if required
by lender, (1) lender verification of employment, (2) lender approval of Buyer's
credit-worthiness, (3) lender verification that Buyer has sufficient funds to
close, and (4) specification of any remaining requirements for funding said
loan. This condition shall be deemed waived unless Seller received from Buyer,
no later than Loan Commitment Deadline (ss.2c), written notice of Buyer's
inability to obtain such loan commitment. If Buyer so notifies Seller, this
contract shall terminate. IF BUYER WAIVES THIS CONDITION BUT DOES NOT CLOSE,
BUYER SHALL BE IN DEFAULT.
c. Credit Information. If Buyer is to pay all or part of the
Purchase Price by executing a promissory note in favor of Seller or if an
existing loan is not to be released at Closing, this contract is conditional upon
Seller's approval of Buyer's financial ability and creditworthiness, which
approval shall be at Seller's sole and absolute discretion. In such case: (1)
Buyer shall supply to Seller by Buyer" Credit Information Deadline (ss.2c), at
Buyer's expense, information and documents concerning Buyer's financial,
employment and credit condition; (2) Buyer consents that Seller may verify
Buyer's financial ability and creditworthiness (including obtaining a current
credit report); (3) any such information and documents received by Seller shall
be held by Seller in confidence, and not released to others except to protect
Seller's interest in this transaction; (4) if Seller does not provide written
notice of Seller's disapproval to Buyer by Disapproval of Buyer's Credit Deadline
(ss.2c), then Seller waives this condition. If Seller does provide written notice
of disapproval to Buyer on or before said date, this contract shall terminate.
(d). Existing Loan Review. If an existing loan is not to be
released at Closing, Seller shall provide copies of the loan documents (including
note, deed of trust, and any modifications) to Buyer by Existing Loan Documents
Deadline (ss.2c). This contract is conditional upon Buyer's review and approval
of the provisions of such loan documents. If written notice of objection to such
loan documents, signed by Buyer, is not received by Seller by the Objection to
Existing Loan Deadline (ss.2c), Buyer accepts the terms and conditions of the
documents. If the lender's approval of a transfer of the Property is required,
this contract is conditional upon Buyer's obtaining such approval without change
in the terms of such loan, except as set forth inss.4c. If lender's approval is
not obtained by Approval of Loan Transfer Deadline (ss.2c), this contract shall
terminate on such date. If Seller is to be released from liability under such
existing loan and Buyer does not obtain such compliance as set forth inss.4c,
this contract may be terminated at Seller's option.
6. APPRAISAL PROVISIONS.
a. Appraisal Condition. This subsection a. XXX Shall
Shall Not apply.
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's lender. The contract shall terminate by Buyer
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giving Seller written notice of termination and either a copy of such appraisal
or written notice from lender which confirms the Property's valuation is less
than the Purchaser Price, received on or before the Appraisal Deadline (ss.2c).
If Seller does not receive such written notice of termination on or before the
Appraisal Deadline (ss.2c), Buyer waives any right to terminate under this
subsection.
b. Cost of Appraisal. Cost of any appraisal to be obtained after
the date of this contract shall be timely paid by XXX Buyer 1/28
Seller.
7. EVIDENCE OF TITLE.
a. Evidence of Title; Survey. On or before Title Deadline (ss.2c),
Seller shall cause to be furnished to Buyer, at Seller's expense, a current
commitment for owner's title insurance policy in an amount equal to the Purchase
Price or if this box is checked, 1/28 An Abstract of title certified to a current
date.. If a title commitment is furnished, it XXX Shall 1/28 Shall Not commit
to delete or insure over the standard exceptions which relate to:
(1) parties in possession,
(2) unrecorded easements,
(3) survey matters,
(4) any unrecorded mechanics' liens,
(5) gap period (effective date of commitment to date deed is recorded), and
(6) unpaid taxes, assessments and unredeemed tax sales prior to the year of
Closing.
Any additional premium expense to obtain this additional coverage
shall be paid by XXX Buyer 1/28 Seller. An amount not to exceed $ 200.00 for
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the cost of any improvement location certificate or survey shall be paid by
1/28 Buyer XXX Seller. If the cost exceeds this amount, Buyer shall pay the
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excess on or before Closing. The improvement location certificate or survey
shall be received by Buyer on or before Survey Deadline (ss.2c). Seller shall
cause the title insurance policy to be delivered to Buyer as soon as practicable
at or after Closing.
b. Copies of Exceptions. On or before Title Deadline (ss.2c),
Seller, at Seller's expense, shall furnish to Buyer, (1) a copy of any plats,
declarations, covenants, conditions and restrictions burdening the Property, and
(2) if a title insurance commitment is required to be furnished, and if this box
is checked XXX Copies of any Other Documents (or, if illegible, summaries of
such documents) listed in the schedule of exceptions (Exceptions). Even if the
box is not checked, Seller shall have the obligation to furnish these documents
pursuant to this subsection if requested by Buyer any time on or before the
Document request Deadline (ss.2c). This requirement shall pertain only to
documents as shown of record in the office of the clerk and recorder(s). The
abstract or title insurance commitment, together with any copies or summaries of
such documents furnished pursuant to this Section, constitute the title documents
(Title Documents).
8. TITLE.
a. Title Review. Buyer shall have the right to inspect the Title
Documents. Written notice by Buyer of unmerchantability of title or of any other
unsatisfactory title condition shown by the Title Documents shall be signed by or
on behalf of Buyer and given to Seller on or before Title Objection Deadline (ss.
2c), or within ten (10) business days after receipt by Buyer of any Title
Documents(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 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 Off-Record Matters Deadline (ss.2c) 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(ies) 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
Off-Record Matters Objection Deadline (ss.2c). 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 SUCH 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.
THE PROPERTY IS LOCATED WITHIN THE COLORADO TECH CENTER METROPOLITAN
DISTRICT THAT HAS TAXING AND BONDING AUTHORITY, WHICH AUTHORITY MAY NOT BE FULLY
EXERCISED AT THE DATE OF THIS CONTRACT OR AT THE TIME OF CLOSING. BUYER
ACKNOWLEGES HAVING BEEN INFORMED THAT SELLER WILL, IN THE FUTURE, SEEK
REIMBURSEMENT OF CERTAIN DEVELOPMENT COSTS FROM SAID DISTRICT AND THAT SAID
DISTRICT MAY ISSUE BONDS AND IMPOSE TAX LEVIES IN ORDER TO MAKE SUCH
REIMBURSEMENT. PURCHASER IS SOLELY RESPONSIBLE FOR INQUIRING INTO AND VERIFYING
THE POTENTIAL PROPERTY TAX BURDEN THAT MAY BE PLACE ON THE PROPERTY AS A RESULT
OF THIS TAXING ENTITY.
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
received by Seller on or before Off-Record Objection Deadline (ss.2c), this
contract shall then terminate. If Seller does not receive Buyer's notice by such
date, 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) or commitment terms as
provided inss.8 a or b above, Seller shall use reasonable effort to correct said
items and bear any nominal expense to correct the same prior to Closing. If such
unsatisfactory title condition(s) are not corrected on or before Closing, this
contract shall terminate; provided, however, Buyer may, by written notice
received by Seller, on or before Closing, waive objection to such items.
e. Title Advisory. The title Documents affect the title,
ownership and use of the Property and should be reviewed carefully.
Additionally, other matters not reflected in the Title Documents may affect the
title, ownership and use of the Property, including without limitation boundary
lines and encroachments, area, zoning, unrecorded easements and claims of
easements, leases and other unrecorded agreements, and various laws and
governmental regulations concerning land use, development and environmental
matters. The surface estate may be owned separately from the underlying mineral
estate, and transfer of the surface estate does not necessarily include transfer
of the mineral rights. Third parties may hold interests in oil, gas, other
minerals, geothermal energy or water on or under the Property, which interests
may give them rights to enter and use the Property. Such matters may be excluded
from the title insurance policy. Buyer is advised to timely consult legal
counsel with respect to all such matters as there are strict time limits provided
in this contract (e.g., Title Objection Deadline [ss.2c] and Off-Reord Matters
Objection Deadline [ss.2c].
9. LEAD BASED PAINT. Unless exempt if the improvements on the Property
include one or more residential dwellings(s) for which a building permit was
issued prior to January 1, 1978, this contract shall be void unless a completed
Lead Based Paint Disclosure (Sales) form is signed by Seller and the required
real estate licensee(s), which must occur prior to the parties signing this
contract.
10. PROPERTY DISCLOSURE AND INSPECTION> On or before Seller's Property
Disclosure Deadline (ss.2c), Seller agrees to provide Buyer with a written
disclosure of adverse matters regarding the Property completed by Seller to the
best of Seller's current actual knowledge.
a. Inspection Objection Deadline. Buyer shall have the right to
have inspection(s) of the physical condition of the Property and Inclusions, at
Buyer's expense. If the physical condition of the Property or Inclusions is
unsatisfactory in Buyer's subjective discretion, Buyer shall, on or before
Inspection Objection Deadline (ss.2c):
(1) notify Seller in writing that this contract is terminate, or
(2) provide Seller with a written description of any unsatisfactory physical
condition which Buyer requires Seller to correct (Notice to Correct.
If written notice is not received by Seller on or before Resolution
Deadline (ss.2c), the physical condition of the Property and Inclusions shall be
deemed to be satisfactory to Buyer.
b. Resolution Deadline. If a Notice to Correct is received by Seller and
if Buyer and Seller have not agreed in writing to a settlement thereof on or
before Resolution Deadline (ss.2c), this contract shall terminate one (1) calendar
day following the Resolution Deadline (ss.2c), unless before termination Seller
received Buyer's written withdrawal of the Notice to Correct.
c. Damage; Liens; Indemnity. Buyer is responsible for payment for all
inspections, surveys, engineering reports or for any other work performed at
Buyer's request and shall pay for any damage which occurs to the Property and
Inclusions as a result of such activities. Buyer shall not permit claims or
liens of any kind against the Property for inspections, surveys, engineering
reports and for any other work performed on the Property at Buyer's request.
Buyer agrees to indemnify, protect and hold Seller harmless from and against any
liability, damage, cost or expense incurred by Seller in connection with any such
inspection, claim, or lien. This indemnity includes Seller's right to recover
all costs and expenses incurred by Seller to enforce this subsection, including
Seller's reasonable attorney fees. The provisions of this subsection shall
survive the termination of this contract.
11. CLOSING. Delivery of deed(s) from Seller to Buyer shall be at
Closing (Closing). Closing shall be on the date arrived at by mutual agreement
of Seller and Buyer, within the periods prescribed in the attached Addendum. The
hour and place of Closing shall be as designated by mutual agreement of Buyer and
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Seller.
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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 delivery a good and sufficient general warranty
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deed to Buyer, at Closing, conveying the Property free and clear of all taxes
except the general taxes for the year of Closing. Except as provided herein,
title shall be conveyed free and clear of all liens, including any governmental
liens for special improvements installed as of the date of Buyer's signature
hereon, whether assessed or not. Title shall be conveyed subject to:
a. those specific Exceptions described by reference to recorded
documents as reflected in the Title Documents accepted by Buyer in accordance
withss.8a [Title Review],
b. distribution utility easements,
c. those specifically described rights of third parties not shown
by the public records of which Buyer has actual knowledge and which were accepted
by Buyer in accordance withss.8b [Matters Not Shown by the Public Records], and
d. inclusion on the Property within any special taxing district.
e. the benefits and burdens of any declaration and party wall agreements, if
any, and
f. other____________________________________________________-.
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 reasonably required documents at or before
Closing. Fees for real estate Closing services shall be paid at Closing by XXX
One-Half by Buyer and One-Half by Seller.
The local transfer tax of ____% of the Purchase Price shall be paid at
Closing by 1/28 Buyer ___ 1/28 Seller. Any sales and use tax that may accrue
because of this transaction shall be paid when due by XXX Buyer 1/28 Seller.
15. PRORATIONS. The following shall be prorated to Closing Date, except
as otherwise provided:
a. Taxes. Personal property taxes, if any, and general real
estate taxes for the year of Closing, based on 1/28 The Taxes for the Calendar
Year Immediately Preceding Closing
XXXX The Most Recent Mill Levy and Most Recent Assessment 1/28 Other
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b. Rents. Rents based on 1/28 Rents Actually Received 1/28
Accrued. Security deposits held by Seller shall be credited to Buyer. Seller
shall assign all leases to Buyer and Buyer shall assume such leases.
c. Other Prorations. Water, sewer charges; and interest on
continuing loan(s), if any; and ________________ None ____________________.
d. Final Settlement. Unless otherwise agreed in writing, these
prorations shall be final.
16. POSSESSION. Possession of the Property shall be delivered to Buyer
on Possession Date and Possession Time (ss.2c), subject to the following lease(s)
or tenancy(s): None.
If Seller, after Closing, fails to deliver possession as specified,
Seller shall be subject to eviction and shall be additionally liable to Buyer for
payment of $300 per day from the Possession Date (ss.2c) until possession is
delivered.
17. NOT ASSIGNABLE. This contract may be assigned at Closing 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.
18. CONDITION OF, AND DAMAGE TO PROPERTY AND INCLUSIONS. Except as
otherwise provided in this contract, the Property, Inclusions or both shall be
delivered in the condition existing as of the date of this contract, ordinary
wear and tear excepted.
a. Casualty; Insurance. In the event the Property or Inclusions
shall be damaged by fire or other casualty prior to Closing, in an amount of not
more than ten percent (10%) of the total Purchase Price, Seller shall be
obligated to repair the same before the Closing Date (ss.2c). 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 by delivering to Seller written
notice of termination. Should Buyer elect to carry out this contract despite
such damage, Buyer shall been titled to a credit, at Closing, for all the
insurance proceeds resulting from such damage to the Property and inclusions
payable to Seller but not the owner's association, if any, plus the amount of any
deductible provided for in such insurance policy, such credit not to exceed the
total Purchase Price.
b. Damage; Inclusions; Services. Should any Inclusion(s) or
services(s) (including systems and components of the Property, e.g. Heating,
plumbing, etc.) fail or be damaged between the date of this contract and Closing
or 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, but only to the extent that the
maintenance or replacement of such Inclusion(s), service(s)or fixture(s) is not
the responsibility of the owners' association, if any, less any insurance
proceeds received by buyer covering such repair or replacement.
c. Walk Through; Verification of Condition. Buyer, upon
reasonable notice, shall have the right to walk through the Property prior to
Closing to verify that the physical condition of the Property and Inclusions
complies with this contract.
19. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document,
Buyer and Seller acknowledge that they have been 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.
20. TIME OF ESSENCE AND 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:
XXX (1) Specific Performance. Seller may elect to treat this
contract as canceled, 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.
1/28 (2) Liquidated Damages. All payments and things of value
received hereunder shall be forfeited by Buyer and retained on behalf of Seller
and both parties shall thereafter be released from all obligations hereunder. It
is agreed that such payments and things of value are LIQUIDATED DAMAGES and
(except as provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for
Buyer's failure to perform the obligations of this contract. Seller expressly
waives the remedies of specific performance and additional damages.
b. If Seller is in Default: Buyer may elect to treat this
contract as canceled, 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. In the event of any arbitration or
litigation relating to this contract, the arbitrator or court shall award to the
prevailing party all reasonable costs and expenses, including attorney fees.
21. MEDIATION. If a dispute arises relating to this contract, prior to
or after Closing, and is not resolved, the parties shall first proceed in good
faith to submit the matter to mediation. Mediation is a process in which the
parties meet with an impartial person who helps to resolve the dispute informally
and confidentially. Mediators cannot impose binding decisions. The parties to
the dispute must agree before any settlement is binding. The parties will
jointly appoint an acceptable mediator and will share equally in the cost of such
mediation. The mediation, unless otherwise agreed, shall terminate in the event
the entire dispute is not resolved thirty (30) calendar days from the date
written notice requesting mediation is sent by one party to the other(s). This
Section shall not alter any date in this contract, unless otherwise agreed.
22. 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 Company (unless
mutual written instructions are received by the holder to the Xxxxxxx Money and
things of value), broker or Closing Company shall not be required to take any
action but may await any proceeding, or at broker's or Closing Company's option
and sale discretion, may interplead all parties and deposit any moneys of things
of value into a court of competent jurisdiction and shall recover court costs and
reasonable attorney fees.
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 toss.ss.10c, 21 and 22.
24. ADDITIONAL PROVISIONS: (The language of these additional provisions
has not been approved by the Colorado Real Estate Commission.)
See attached Addendum
25. ENTIRE AGREEMENT; SUBSEQUENT MODIFICATION; SURVIVAL. 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. 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. Any obligation in
this contract which, by its terms, is intended to be performed after termination
or Closing shall survive the same.
26. FACSMILE. Signatures XXXX May G May Not be evidenced by
facsimile. Documents with original signatures shall be provided to the other
party at Closing, or earlier upon request of any party.
27. NOTICE. Except for the notice requesting mediation described inss.
21, any notice to Buyer shall be effective when received by buyer or by
Seller.
28. 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 acceptance pursuant toss.27 on
or before Acceptance Deadline Date and Acceptance Deadline Time (ss.2c). 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.
ELDORADO ARTESION SPRINGS, INC.
a Colorado corporation
By /s/ Xxxxxxx X. Xxxxxx
-----------------------
Date of Buyer's Signature: November 17, 2000
Buyer's Address:
----------------------------------------------------------------------
Buyer's Telephone No:__________________________ Buyer's Fax No:
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THE PARK AT CTC, LLC
a Colorado limited liability company
By: ___________________________________________
Date of Seller's Signature: November 17, 2000
Seller's Address: 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Seller's Telephone No: (000) 000-0000 Seller's Fax No: (303)
000-0000
ADDENDUM TO COMMERCIAL
CONTRACT TO BUY AND SELL REAL ESTATE
THIS ADDENDUM forms a part of that Commercial Contract to Buy and Sell Real
Estate dated November 17, 2000, between THE PARK AT CTC, LLC as the Seller and
ELDORADO ARTESION SPRINGS, INC. as the Buyer. To the extent there is any
conflict between the terms and provisions set forth in this Addendum and the
terms and provisions of the printed form of Contract, the terms and provisions of
this Addendum shall prevail and control.
1. Loan Commitment: Buyer shall, in accordance with the provisions of
---------------
paragraphs 4(b) and 5 of the printed portion of the Contract, immediately seek a
loan commitment for permanent financing in the amount of $2,880,000.00 (the "Loan
Commitment"). Buyer shall, as soon as the form of such a Loan Commitment is
available to Buyer but prior to its acceptance by Buyer, provide to Seller a
complete copy of the Loan Commitment. This Contract is conditioned for the
benefit of Seller, upon Seller and Seller's construction lender, reviewing and
approving the terms and conditions of the Loan Commitment. This Contract shall
terminate unless Seller notifies Buyer, in writing, on or before December 8,
2000, that Seller and Seller's construction lender have approved the Loan
Commitment. If Seller and Seller's construction lender approve the Loan
Commitment, Buyer agrees that it will not thereafter do anything or fail to do
anything which would cause the Loan Commitment to be terminated or withdrawn.
2. Xxxxxxx Money Deposits: Buyer has, at the time of signing this
----------------------
Contract, deposited with Seller the sum of $10,000.00 as an initial xxxxxxx money
deposit. Additionally, Buyer has paid $35,235.26 in design and consulting costs
which amount shall be credited against the purchase price and against the amount
of the required Xxxxxxx Money Deposit. Unless this Contract is sooner terminated
pursuant to contingencies expressed in it, Buyer shall deposit with Seller an
additional $274,764.74 of xxxxxxx money within five (5) days following the Loan
Commitment deadline. Buyer understands and agrees that Seller will not enter
into a contract to construct the improvements unless and until such additional
deposit has been made. The initial deposit is non-refundable except in the event
of default by the Seller, to compensate Seller for its services and costs
incurred in obtaining PUD approval. The additional deposit of $35,235.26 and the
additional deposit of $274,764.26 shall be non-refundable except in the event of
default by Seller. All of said deposits shall be applied to the Purchase Price
at closing.
3. Tenant Finish: The purchase price includes a $112,500.00 estimate for
-------------
interior finish work. "Interior Finish Work" shall mean all design and
construction costs of interior improvements not included within the Final Plans
and Specifications as hereinafter defined. All cost and expense of Interior
Finish Work in excess of the foregoing estimate shall be borne solely by Buyer,
and shall be paid by Buyer to Seller prior to commencement of construction of the
Interior Finish Work. Buyer shall receive a credit against the Purchase Price in
the amount, if any, by which the actual costs involved in the Interior Finish
Work are less than $112,500.00. Seller shall construct or cause the Interior
Finish Work to be constructed. Buyer is presently working with Xxxxxxx &
Associates, Architects, on the design and plans and specifications for the
Interior Finish Work. Final design and plans and specifications must be
delivered to Seller on or before December 8, 2000, if Seller is to meet the
Completion Date (hereinafter defined). Any delay in delivering design, plans and
specifications for the Interior Finish Work, beyond December 8, 2000, shall
automatically defer the Completion Date by the same number of days of delay.
4. Final Plans and Specifications: On or before December 8, 2000, Seller
------------------------------
shall cause to be prepared final plans and specifications for the core and shell
of the improvements (the "Final Plans and Specifications"), reflecting all work
to be performed by Seller with the exception of the Interior Finish Work. Both
Seller and Buyer must approve the Final Plans and Specifications on or before
December 8, 2000, or this Contract shall thereupon terminate. Approval of the
Final Plans and Specification by Buyer shall be conclusively presumed unless
Buyer gives written notice to Seller of objection to the Final Plans and
Specifications within five (5) calendar days after the Final Plans and
Specifications are delivered to Buyer. The approval of each of Buyer and Seller
shall not be unreasonably withheld. No changes shall thereafter be made to the
Final Plans and Specifications without the prior written consent of both Seller
and Buyer, which consent shall not be unreasonably withheld.
5. Construction of Improvements: Seller shall construct or cause to be
----------------------------
constructed all improvements reflected on and in accordance with the Proposal
Letter attached hereto as Exhibit A, the Final Plans and Specifications agreed
upon between the parties, and in accordance with the design, plans and
specifications for the Interior Finish Work (subject only to the obligation of
Buyer to pay the cost, if any, of Interior Finish Work in excess of the estimate).
6. Completion of Improvements: Subject to: (i) any delay occasioned by
--------------------------
Buyer failing to deliver to Seller the plans and specifications for Interior
Finish Work by the date herein prescribed, (ii) delays occasioned by the City of
Louisville in the issuance of necessary permits or approvals, (iii) delays
occasioned by Buyer suggesting changes to the Final Plans and Specifications, and
(iv) and force majeure delays, Seller shall substantially complete all such
improvements on or about June 30, 2001. "Substantial Completion" as used herein
shall mean the date upon which the City of Louisville issues a Certificate of
Occupancy (either temporary or final) which authorizes Buyer to begin occupancy
of the improvements. Seller agrees to give to Buyer written notification of any
delay or delays classified as force majeure delays, within ten (10) days
following the occurrence of the same.
7. Closing: Closing of the sale and purchase herein contemplated shall
--------
occur five (5) business days following the date of Substantial Completion. If,
because of a delay in the date of Substantial Completion not caused by Buyer,
closing has not occurred on or before August 15, 2001, then in that event Buyer
may elect to terminate this Contract by giving Seller written notification of
such termination on or before said date. In the event of such termination
pursuant to this paragraph, all xxxxxxx money theretofore paid by Buyer to Seller
shall forthwith be returned to Buyer.
8. Walkthrough and Punchlist: Within three (3) days prior to the closing
-------------------------
date, Seller and Buyer shall conduct a final inspection of the improvements,
accompanied by Seller's architect or contractor. The parties shall identify all
matters requiring completion or correction, and shall reflect such matters in a
writing to be signed by both Seller and Buyer (the"Punchlist"). Seller agrees to
complete or correct all such matters within thirty (30) days after the closing
date.
9. Casualty Damage During Construction: Seller or its contractor shall be
------------------------------------
responsible for obtaining and maintaining all insurance coverage's prior to the
closing date. Should the improvements being constructed on the Property be
damaged by fire, flood or other incident prior to closing, Seller shall use
reasonable efforts to cause the same to be repaired and completed by the
estimated Completion Date set forth in paragraph 5, above, but if unable to do
so, the closing shall be deferred until Substantial Completion is achieved,
subject only to the ultimate closing date set forth in paragraph 7, above.
10. Assignment of Contract: At the time, place and date of closing the
----------------------
sale and purchase herein contemplated, Buyer may assign this Contract to any
entity or qualified Intermediary which is capable of concluding the purchase of
the Property and which agrees to assume and perform all obligations of the Buyer
hereunder.
11. Seller's 1031: Buyer agrees to cooperate with Seller should Seller
-------------
desire to exchange the subject property pursuant to Section 1031 of the Internal
Revenue Code, provided that Buyer does not incur any liability or expense beyond
that which it would incur pursuant to the other provisions of this Contract.
12. Hazardous Materials Representation: Seller represents and warrants
----------------------------------
that, to its actual knowledge, the Property does not contain and there has been
no application, use, treatment, production, generation, discharge, disposal or
storage on, from or onto the Property of any "hazardous waste", as that terms is
defined in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Resources, Compensation and Liability Act, the regulations issued
pursuant thereto or any comparable laws, rules or regulations of the State of
Colorado, and that there is no proceeding or inquiry threatened or pending by any
governmental body with respect thereto. This representation and warranty shall
survive the closing and delivery of deed called for in this Contract.
13. As-Built Plans: Within thirty (30) days following the closing date,
--------------
Seller shall provide to Buyer as-built plans of the improvements constructed on
the property.
14. Community Investment Fee: Concerning the matter of the City of
------------------------
Louisville's Community Investment Fee, Ordinance No. 1314, Series 1999, of
Seventy Two Cents ($0.72), per square foot of building floor area, this fee shall
be paid by Seller to the City of Louisville upon obtaining a building permit and
has been included within the Purchase Price. If this fee, or any part of it, is
found to be invalid, then the Buyer is entitled to the full amount found to be
invalid. This agreement shall survive the closing and delivery of deed called
for in this contract.
15. Change Orders: Any change order initiated by Buyer that increases the
-------------
cost of construction of the improvements shall result in an increase in the
purchase price by a like amount. With respect to any change order necessitated
by presently unforeseen and unforeseeable physical conditions encountered in the
site, or changes mandated by the City of Louisville or other governmental agency
requiring deviation from the Final Plans and Specifications, (i) Seller will
consult with Buyer before initiating any such change order, but Buyer's consent
or concurrence shall not be required, and (ii) if any such change order results
in an increase in the cost of constructing the improvements, Buyer shall bear any
such additional costs, which additional costs shall be added to the purchase
price for the Property.
16. Interest on Construction Loan: Buyer shall be liable for interest on
-----------------------------
Seller's construction loan accruing on and subsequent to five (5) business days
following the date of substantial completion if Buyer has not closed on purchase.
17. Public Service Company Deposit: Public Service Company of Colorado
------------------------------
(now New Century Energies) now requires a deposit before providing gas and
electric service to the Property. Buyer shall pay such deposit in a timely
manner, and Buyer shall be entitled to all refunds and/or credits from such
deposit.
INITIALS
BUYER: ___________ SELLER: _________________
18. Seller shall furnish Buyer with an endorsement updating the title
commitment issued by FCTC on November 3, 2000. Buyer shall have 10 days prior to
closing to review the title to make certain there are no material changes in the
title effecting merchantability.
