THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT
LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING.
COMMERCIAL
CONTRACT TO BUY AND SELL REAL ESTATE
February 6 , 1998
--------------------------------
1. PARTIES AND PROPERTY. X.X. XXXXXXX , xxxxx(s) [Xxxxx], (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 Xxxxxx , Colorado, to wit:
Lots Six, Seven, Eighteen, Nineteen, Twenty, Twenty-one, and part of Lot Eight
and Part of Xxxxxx Alley, in Block Three in the City of Central, more
particularly described as follows:
Beginning at the Southwest corner of Lot Eighteen in said Block Three, a spike
nail driven at the end and in the center of a stone wall, which is a mutual
boundary between Lots 17 and 18 in said Block 3, whence the Southwest corner of
the building upon said Lot 18 bears No. 8'5'54" E., a distance of 2.95 feet;
thence N. 8'5'54" E., a distance of 20.74 feet; thence N. 02'28' E., a distance
of 21.05 feet; thence N. 00'48'W., a distance of 37.51 feet to the center of a
mutual wall; thence along said mutual wall N. 88'18'E., a distance of 62.58 feet
to the West edge of a wall which parallels the East side of Xxxxxx Alley; thence
S. 1'30'E., a distance of 23.00 feet to the south edge of a stone wall; thence
along said South edge of stone wall S. 63'45'E., a distance of 66.00 feet;
thence S. 29'51'W., a distance of 50.00 feet; thence N. 60'09'W., a distance of
29.12 feet; thence N. 89'45'W., a distance of 75.63 feet to the point of
beginning.
known as Xx. 000 Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000 , Street Address City
State Zip 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) All items pursuant to the attached AGREEMENT FOR
PURCHASE AND SALE OF BUSINESS ASSETS executed concurrent with this Contract .
The above-described included items (Inclusions) are to be conveyed to Buyer by
Seller by bill 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 $ 2,750,000.00 ,
payable in U.S. dollars by Buyer as follows: (Complete the applicable terms
below.)
(a) XXXXXXX MONEY. $ N/A in the form of N/A , as xxxxxxx money deposit and part
payment of the purchase price, payable to and held by N/A , broker, in its trust
account on behalf of both Seller and Xxxxx. Broker is authorized to deliver the
xxxxxxx money deposit to the closing agent, if any, at or before closing.
The balance of $ 2,750,000.00 (purchase price less xxxxxxx money) shall be paid
as follows:
SEE SECTION 21, ADDITIONAL PROVISIONS
(b) CASH AT CLOSING. (OMITTED)
(c) NEW LOAN. (OMITTED)
(d) ASSUMPTION. (OMITTED)
(e) SELLER OR PRIVATE THIRD-PARTY FINANCING. (OMITTED)
4. FINANCING CONDITIONS AND OBLIGATIONS. (OMITTED)
5. APPRAISAL PROVISION. (OMITTED)
6. COST OF APPRAISAL. (OMITTED)
7. NOT ASSIGNABLE. This contract shall not be assignable by Xxxxx 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 FEBRUARY 6, 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 insurance 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 Xxxxx's designee, must request Seller, in
writing, to furnish copies or abstracts of instruments listed in the schedule of
exceptions no later than calendar days after Title Deadline. If Seller furnishes
a title insurance 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 Xxxxx 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 5
calendar days after Title Deadline, or within five (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 Xxxxx's notice by
the date(s) specified above, Xxxxx 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 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
FEBRUARY 11 , 19 98 . If Xxxxxx does not receive Xxxxx's notice by said date,
Xxxxx 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.
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, Xxxxx 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
received by Seller, on or before closing, waive objection to said unsatisfactory
title condition(s).
10. INSPECTION. Xxxxxx agrees to provide Xxxxx on or before FEBRUARY 6, 1998
with a written enumeration of all material defects of the Property to the best
of Seller's current actual knowledge. Buyer or any designee, shall have the
right to have inspection(s) of the physical condition of the Property and
Inclusions, at Buyer's expense. If written notice of any unsatisfactory
condition, signed by or on behalf of Buyer, is not received by Seller on or
before FEBRUARY 11 , 19 98 (Objection Deadline), the physical condition of the
Property and Inclusions shall be deemed to be satisfactory to Buyer. If such
notice is received by Seller as set forth above, and if Buyer and Seller have
not agreed, in writing, to a settlement thereof on or before FEBRUARY 12 , 19 98
(Resolution Deadline), this contract shall terminate three calendar days
following the Resolution Deadline; unless, within the three calendar days,
Seller receives written notice from Buyer waiving objection to any
unsatisfactory condition. Buyer is responsible for and shall pay for any damage
which occurs to the Property and Inclusions as a result of such inspection.
11. DATE OF CLOSING. The date of closing shall be FEBRUARY 13 , 19 98 , or by
mutual agreement at an earlier date. The hour and place of closing shall be as
designated by BUYER AT CLEAR CREEK-XXXXXX COUNTY ABSTRACT CO ("Title Company") .
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 SPECIAL 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 ONLY THE EXISTING FIRST DEED
OF TRUST, FINANCING STATEMENT FILED IN CONNECTION THEREWITH . 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 services shall not exceed $ 300.00 and shall be paid at closing
by 1/2 BY SELLER AND 1/2 BY BUYER.
The local transfer tax of N/A % of the purchase price shall be paid at closing
by N/A . Any sales and use tax that may accrue because of this transaction shall
be paid when due by N/A .
15. PRORATIONS. General taxes for the year of closing, based on the 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 ONLY
THOSE SERVICE CONTRACTS ASSUMED IN WRITING BY BUYER shall be prorated to date of
closing.
16. POSSESSION. Possession of the Property shall be delivered to Buyer as
follows: AT CLOSING subject to the following lease(s) or tenancy(s): NONE. 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 $ N/A per day from the date of agreed possession until possession
is delivered.
17. CONDITION OF 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 or 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:
[Check only one box.]
|X| (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.
(2) LIQUIDATED DAMAGES. All payments and things of value received hereunder
shall be forfeited by Xxxxx 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 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,
Xxxxx 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 deposit 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: (The language of these additional provisions has not
been approved by the Colorado Real Estate Commission).
X. Xxxxx agrees, at Closing, subject to the terms, conditions, and
provisions of this Contract, to have the Note Holder, currently X.X. Xxxxxxx,
execute and deliver to Seller a Covenant Not to Xxx Xxxxxx (in the form attached
hereto as Exhibit A) on the existing Promissory Note and Deed of Trust dated May
31, 1991 ("Loan") valued at the outstanding balance of the "Loan" (which
principal balance as of the date of this Contract is agreed upon to be
$2,750,000.00) dated May 31, 1991, and recorded June 6, 1991 in Book 512 at Page
426 in the Clerk and Recorder's Office of the County of Xxxxxx, State of
Colorado, and to supply to Seller an appropriate release from personal liability
on the loan executed by Note Holder in the form attached hereto as Exhibit B.
B. The parties agree that this Contract and the Closing is expressly
conditional upon the concurrent closing on the attached and incorporated
Agreement for Purchase and Sale of Business Assets executed concurrent with this
Contract between Seller and Stage Stop Gaming Hall, Inc. The Date of Closing
under this Contract, Section 11, is subject to Seller's extension of the same
pursuant to Section 6 of the Agreement for Purchase and Sale of Business Assets.
C. Any notice required to be supplied to Buyer shall also be supplied to
his attorney, Xxxx Xxx Xxxxxx, Esq., address and telephone number noted below.
Any notice required to be supplied to the Seller shall also be supplied to its
attorney,
D. This contract shall survive closing.
X. Xxxxxxxxx signatures shall be accepted as originals for the purpose of
acceptance and execution of this document. If this document is accepted by both
Seller and Xxxxx in writing, this document shall become effective as the
Contract.
F. THIS CONTRACT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF COLORADO.
G. Section 20 is amended by the addition of the following: the Parties,
Disputants, agree that any dispute between them, if not first resolved through
mediation, shall be submitted to binding arbitration. The arbitration shall be
governed by Colorado law and, absent agreement of the parties, shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and be held in the greater Denver Metropolitan area.
X. Xxxxxx shall execute at closing the IRS Certificate of Non-Foreign
Status.
I. To the extent possible, the Special Warranty Deed to Purchaser shall
reflect any exceptions to title, solely by Recorded Documents of Record
specifying the same by Book and Page or Reception Number and date of
recordation.
J. The Title Insurance Committment and Policy, pursuant to Section 8 of
this Contract shall be obtained from CLEAR CREEK-XXXXXX COUNTY ABSTRACT CO, and
shall contain Extended ALTA endorsements, deleting the Standard pre-printed
Exceptions, excluding however the "survey" exception and any other exception the
title company will not delete without a current survey. Xxxxxx agrees to assign
to Buyer its rights in any and all surveys it has, and deliver to the same to
Buyer at or before Closing.
K. This Contract is expressly conditional upon the issuance of a Limited
Gaming License to Stage Stop Gaming Hall, Inc. on or before February 13, 1998,
which shall be at Buyer's sole cost and responsibility. This Contract is also
conditional upon Seller obtaining at or before Closing consent or amendment to
any obligations of Seller held by third parties to convey the Property to Buyer
free of all liens excepting the First Deed of Trust described above in
subsection 21 A.
L. The parties agree that the Seller and Buyer may close by "mail" so long
as all their respective documents are received by the Title Company no later
than one (1) Business Day prior to closing.
22 RECOMMENDATION OF LEGAL COUNSEL. By signing this document, Xxxxx 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, XXXX , and its
salespersons have been engaged as XXXX . 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 box is checked q 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 Xxxxx and Xxxxxx, as evidenced by their signatures
below, and the offering party receives notice of such acceptance on or before
FEBRUARY , 1998 (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 X.X. XXXXXXX Buyer
Date of Xxxxx's signature Date of Xxxxx's signature
FEB. 6, 1998 FEB. 6, 1998
Buyer's Address: P.O. Box 74 , Central City, Colorado 80427
GOLD COIN, INCORPORATED
------------------------------- ------------------------------
Seller by Seller
Date of Seller's signature Date of Seller's signature
FEB. 6, 1998 FEB. 6, 19
Seller's Address
--------------------------------------------------------------
The undersigned Broker(s) acknowledges receipt of the xxxxxxx money deposit
specified in Section 3, and Selling Company confirms its Broker Relationship as
set forth in Section 24.
Selling Company NONE
Listing Company NONE
