OPTION AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREEMENT is made and entered into this ___ day of ____________,
2001, by and between BRONCUCIA INVESTMENT, a Colorado General Partnership
("Seller or Grantor") and HASTINGS HOLDING CORPORATION, a Colorado
corporation (herein called "Buyer or Grantee")
W I T N E S S E T H:
1. Seller or Grantor is the owner of:
(a) All that certain lot, tract or parcel of real estate more
particularly described on Exhibit "A" attached hereto, together with all
plants, shrubs and trees located thereon, and together with all rights of way
and easements appurtenant thereto, including, without limitation, all of
Seller's right, title and interest in and to the land underlying and the air
space overlying any public or private ways or streets crossing or abutting
said real estate ("Land");
(b) Except as set forth in Schedule 1(b), all, if any,
buildings, structures and other improvements of any and every nature located
on the Land and all fixtures attached or affixed, actually or constructively,
to the Land or to any such buildings, structures or other improvements
("Improvements");
(c) All personal property, if any, of every kind ("Personalty")
located on the Land or within the Improvements and used in connection with
the operation, management or maintenance of the Land or the Improvements,
excluding any and all items of Personalty owned by Lessees occupying the Land;
(d) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the owner of the
Property, if any, in and to all certificates, licenses, permits,
authorizations, consents and approvals from governmental authorities with
respect to (i) vehicular ingress and egress to and from the Land, and (ii)
the use, operation and occupancy of the Improvements, including, without
limitation, the certificate of occupancy for the Improvements ("Permits");
(e) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the owner of the
Property, if any, in and to (i) any impact fee credits with, or impact fee
payments to, any county or municipality in which the Land is located or
arising from any construction of improvements, or dedication or contribution
of property, by Seller, or its predecessor in title or interest, related to
the Land, (ii) any development rights, allocations of development density or
other similar rights allocated to or attributable to the Land or the
Improvements, (iii) any utility capacity allocated to or attributable to the
Land or the Improvements, (iv) all water rights not heretofore conveyed
NOTE: It is acknowledged, understood and agreed by and between the Seller
and the Buyer that as part of the consideration of the Seller's property
being included within the boundaries of the South Xxxxx County Water and
Sanitation District by formal resolution, the Seller was required to convey
to the District all of the Seller's rights, title and interest to all ground
water, whether tributary or non-tributary (including all decrees, permits,
xxxxx, and any right title or interest thereto) as more specifically
described in the Conveyance of Groundwater Rights Agreement dated October 26,
2000, a copy of which is attached hereto and marked Exhibit "1(e)".
Therefore, the Seller has only retained at the time of the execution of this
contract the use and control of existing xxxxx and the rights attributable to
such existing xxxxx until such time a potable water shall become available
within four hundred (400) feet of Seller's property line and such time as
when the Seller or its successors in interest is or are required to connect
to the South Xxxxx Water District's Water and Distribution System.
Therefore, to the extent already conveyed, no water rights are owned by the
Seller that are available to be conveyed to Buyer in accordance with this
Agreement.
All matters described in the preceding clauses (i), (ii),
(iii), (iv) and (v), arise under or pursuant to governmental requirements,
administrative or formal action by governmental authorities, or agreement
with governmental authorities or third parties shall be conveyed with the
Land, to the extent available for conveyance on the date of closing
("Entitlements"); and
(f) All of the right, title and interest of the "lessor" or
"landlord" in, to and under all leases and other agreements for the use,
occupancy or possession of all or any part of the Land or the Improvements,
including, without limitation, all the tenant leases ("Existing Leases")
scheduled and identified on Exhibit "B" attached hereto ("Rent Schedule").
The Land, Improvements, Existing Leases, Permits, Entitlements
and Personalty are herein collectively called the "Property";
(g) Subject to the timely and continued performances of the
Buyer as identified in this Agreement, including, but not limited to, the
payment of the consideration herein expressed ("Option Payments and
Deposit"), the Seller or Grantor desires to grant to Grantee the exclusive
option to Purchase the Property. It is agreed that said option shall be
irrevocable to the Seller provided that the Purchaser timely performs all of
its obligations specified in this Contract. It is further agreed that said
Option will expire of its own terms on the close of business on December 31,
2004, unless otherwise extended by mutual written agreement of the parties
executed prior to the deadline date.
(h) Not withstanding the desire of the Seller or Grantor to
grant to the Grantee the exclusive option described in Paragraph g above, it
is recognized and agreed by the parties that should the Buyer default in any
of the required performances required under this Option Agreement, as set
forth below, the Grantor or Seller, upon notice to the Buyer may in its
discretion, revoke this option in the manner specified in this Contract.
NOW, THEREFORE, upon those terms and conditions reflected herein
for good and valuable consideration and the sufficiency of which is hereby
acknowledged by Grantor and Grantee, Grantor hereby agrees to grant to
Grantee, and Grantee hereby agrees to accept and take from Grantor, subject
to and in accordance with all of the terms and conditions of this Agreement,
the following:
2. Option. Subject to the timely and continued performances of
the Buyer or Grantee as identified in this Option Agreement, including, but
not limited to, the payment of the consideration herein expressed ("the
option payments and deposit") the Seller or Grantor grants to the Buyer or
Grantee the irrevocable option to purchase the property upon the terms and
conditions herein set forth.
3. Option Payments/Purchase Price; Method of Payment.
(a) First Option Payment. The First Option Payment in the
amount of Two Hundred Thousand AND NO/100 Dollars ($200,000.00) shall be paid
by the Grantee to the Grantor on or before 5:00 p.m. on the third business
day following the end of the Due Diligence Date as that term is defined in
Paragraph 9(c) below. It is agreed that said Option Payment once paid shall
be non-refundable to the Grantee.
(b) Additional Option Payments. On the 15th day of January,
2002 and continuing on the 15th day of January in each year thereafter
through January 15, 2004, (unless this Option Agreement is extended as
hereinafter set forth), the Grantee shall pay directly to the Grantors
additional Option Payments in the amount of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) each. Provided that the Grantee well and truly
performs the requirements of the Buyer in accordance with terms and provision
of this Agreement and closes the real estate transaction contemplated in this
Agreement, on or before December 31, 2004, or such other date to which the
closing has been extended by mutual agreement of the parties, all Options
Payments made hereunder by Grantee shall be credited against the Purchase
Price referenced in Paragraph 3(c) hereof. In any event, subsequent to the
Due Diligence Date identified in Paragraph 9(c) of this Contract, all Option
Payments made hereunder shall be nonrefundable to the Grantee/Buyer.
(c) The Purchase Price for the Property ("Purchase Price"),
shall be FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). The Purchase
Price, after crediting the Option Payments and the Xxxxxxx Money Deposit, and
subject to the prorations and adjustments herein described, shall be paid by
Buyer to Seller on the date of closing ("Date of Closing") hereinafter
identified as follows: (i) on the Date of Closing, the Buyer shall pay to the
Seller the remaining balance of the Purchase Price by a cashier's check; or,
official bank check of a national banking institution with offices in Denver,
Colorado; or, such other banking institution as Seller may approve in
writing; or by wire delivery of funds through the Federal Reserve System to
an account designated in writing by Seller;
OR
(ii) The Buyer may elect to have the Seller finance a
portion of the Purchase Price by paying to the Seller an additional cash down
payment in the amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) in
any of the forms identified in Paragraph (i) above as may be agreed by the
Seller. Subsequent to the application of the Option Payment or Payments,
Xxxxxxx Money Deposit paid by the Buyer and the additional cash down payment
of One Million Dollars, the Seller agrees to finance the remaining amount of
the Purchase Price by means of the Buyer's execution of a Promissory Note
secured by a First Deed of Trust and appropriate Assignment of Rents. The
principal amount of the Promissory Note shall bear interest at an annual rate
not to exceed eight percent (8%) per annum as the parties shall agree. The
Promissory Note will provide for annual payments of interest only on the
remaining balance of the Promissory Note which annual interest payment shall
be due and payable on each anniversary date of the Note following the
Closing. However, unless sooner prepaid, the principal balance of the
Promissory Note together with all accrued interest thereon, shall be due and
payable, in full, on or before January 15, 2005.
(iii) Should the Buyer elect to finance a portion of the
Purchase Price in the manner set forth above in Paragraph (ii) at the time of
Closing, Seller shall release from the encumbrance created by the First Deed
of Trust and Assignment of Rents up to sixty-four (64) acres of the subject
real estate at a release price of FIFTEEN THOUSAND SIX HUNDRED TWENTY-FIVE
DOLLARS AND NO/100 ($15,625.00) per acre.
The parties further agree that should the Buyer
desire the release of any additional acreage prior to the full payment by the
Buyer of the First Mortgage, the Seller will agree to release additional
acreage at a release price of FIFTEEN THOUSAND SIX HUNDRED TWENTY-FIVE AND
NO/100 DOLLARS ($15,625.00) per acre; Provided, however, that Seller may
adjust and increase the release price per acre should the remaining balance
of the Promissory Note together with accrued interest thereon exceed the
value of the remaining acreage subject to the encumbrance calculated again at
the rate of FIFTEEN THOUSAND SIX HUNDRED TWENTY-FIVE AND NO/100 DOLLARS
($15,625.00) per acre. It is the intention of the parties that at all times
during the pendency of the mortgage, the remaining balance of the Promissory
Note shall be and remain fully secured. It is further the agreement of the
parties that all additional acreage requested to be released by the Buyer
shall be in parcels of at least thirty-five (35) acres or more, which parcels
shall be contiguous to the initial parcel of property released at Closing
and/or any additional parcels released in accordance with this provision of
this Contract. The parties further agree that this provision in its entirety
shall survive the closing of this transaction should the financing option be
exercised by Buyer.
(d) The term of the Option shall commence as of the Effective
Date of this Contact and shall automatically expire on December 31, 2004,
subject, however, to the Grantee's ability to extend the Option Period as set
forth in Paragraph 7 of this Agreement.
(e) [Seller may want to delete and certify at closing]
Notwithstanding the foregoing, in the event that Seller advises Buyer that
Seller is a "Foreign Person" (as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended, and regulations promulgated thereunder,
herein called the "Code"), or in the event that Seller fails or refuses to
deliver the certificate and affidavit of non-foreign status described in
Paragraph 9(a) of this Agreement, or in the event that Buyer receives notice
from any Seller-transferor's agent or Buyer-transferee's agent (as each of
such terms are defined in the Code), or Buyer has actual knowledge, that such
certificate and affidavit is false, Buyer shall deduct and withhold from the
Purchase Price a tax equal to ten percent (10%) of the Purchase Price, as
required by Section 1445 of the Code. Buyer shall remit such amount to, and
file the required form with, the Internal Revenue Service, and Buyer shall
receive a credit against the Purchase Price for the amount so withheld.
(f) Further notwithstanding the foregoing, in the event that
Seller is not a Colorado resident or otherwise exempt from any state-imposed
withholding requirements, or in the event that Seller fails or refuses to
deliver Form DR 1083 described in Paragraph 9(a) of this Agreement, or in the
event that Buyer has actual knowledge that such form is false, Buyer shall
deduct and withhold from the Purchase Price the amount of any such
state-imposed tax, and shall remit such amount to, and file any required form
with, the Colorado Department of Revenue, and Buyer shall receive a credit
against the Purchase Price for the amount so withheld.
4. Exercise of Option. Provided the Grantee is not in default with
regard to any material provision of this Agreement or the performances of the
Grantee/Buyer under this Agreement, the Grantee may exercise this option to
purchase the Property, at any time during the original or the extended term
of the Option Agreement by giving written notice to the Grantor of the
Grantee's intention to exercise this Option ("Notice of Exercise"). Upon
delivery of the Notice to Exercise to Grantor, the parties to this Contract
shall be bound by the terms and provisions of this Contract relating to the
Purchase and Sale terms of the subject real estate property. Grantee may,
with the prior written permission of the Grantor, which permission shall not
be unreasonably withheld, be allowed to record the Notice of Exercise of the
Option in the Clerk and Recorder's Office of Xxxxx County, Colorado.
5. Xxxxxxx Money; Additional Deposits.
(a) On or before the date three (3) business days after the
later of the date of Seller's or Buyer's execution of this Agreement (which
later date of execution is herein called the "Effective Date"), Buyer shall
deliver to Chicago Title Company of Colorado, as escrow agent ("Escrow
Agent") the sum of TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00)
(which sum, together with all interest actually earned thereon during the
term of this Agreement, is herein called the "Xxxxxxx Money").
(b) Throughout the term of this Option Agreement and until the
Date of Closing, the Escrow Agent shall invest the Xxxxxxx Money with a
national bank whose depositors are insured by the Federal Deposit Insurance
Corporation. Additionally, it is agreed throughout the term of this Option
Agreement, the Escrow Agent shall hold and disburse the Xxxxxxx Money Deposit
in accordance with the terms and provisions of this Agreement, including,
without limitation, the terms and conditions set forth on Exhibit "C", Escrow
Provisions which are attached hereto, and incorporated herein by reference.
Notwithstanding any provision of this Agreement to the contrary, the Escrow
Agent shall deposit and maintain the Xxxxxxx Money in such accounts as are
necessary to avoid exceeding federal deposit insurance limits on any single
escrow deposit account. Subject to the terms and conditions of Paragraphs
5(c), and 5(d), below, on the Closing Date, the Xxxxxxx Money deposit shall
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be will be applied as part payment of the Purchase Price.
(c) If Buyer has not elected to terminate this Agreement on or
before 5:00 p.m. (M.S.T) within three (3) business days next following the
Due Diligence Date as defined in Paragraph 9(c) of this Agreement, the Escrow
Agent without further direction of the Buyer shall immediately release to the
Seller the principal amount of the Xxxxxxx Money Deposit together with all
interest theretofore earned on such escrowed principal amounts.
(d) Other than as expressly provided to the contrary in this
Agreement, the Xxxxxxx Money Deposit and Option Payments shall be applied as
part payments of the Purchase Price on the Closing Date. In the event the
Grantee shall default in the payment of additional Option Payments as
required in this Contract or in the event of the Grantee's default with
regard to any other provision of this Contract, the Grantor shall provide a
written notice to the Grantee of such default in accordance with the notice
provision of this Contract in Paragraph 27(a). The Grantee shall have ten
(10) calendar days from the date of the delivery of said notice as provided
in Paragraph 27(a) to cure said
default.
In the event the Grantee fails to cure said default within
the said ten (10) calendar day time period, the Grantor, in its sole
discretion, may without further written notice may declare this Option
Agreement terminated, in which case, the Xxxxxxx Money Deposit and all Option
Payments paid by the Grantee prior to the Termination Date shall be retained
by Seller in consideration for its grant of this Option Agreement to the
Grantee.
On the Termination Date all rights and obligations of the
parties to the Agreement, except as related above shall expire and this
Agreement shall become null and void.
6. No Obligation to Purchase. The Grantor/Seller and the
Grantee/Buyer agree that the Option granted herein simply allows, but does
not require, the Grantee to purchase the Property unless or until it
exercises its rights to purchase this Property under the terms and provisions
of this Agreement. However, it is further understood by and agreed between
the parties that should the Grantee/Buyer default in any of its required
obligations or performances under this Agreement, this Option Agreement shall
immediately terminate, and thereafter the Grantor/Seller shall have the right
to market and sell the subject real estate Property to another Buyer without
claim or threat of claim from the Grantee/Buyer.
7. Extension of Option Period. In return for the payment of an
additional Option Payment in the amount of Two Hundred Thousand Dollars
($200,000), it is hereinafter set forth the Grantee/Buyer granted the
one-time right to extend the Option Period from December 31, 2004, up to and
including December 31, 2005, provided that:
(a) Grantee/Buyer delivers to the Grantor no later December 15,
2004, its notice that the Grantee/Buyer wishes to extend the term of said
Option ("Notice to Extend"), along with payment of Two Hundred Thousand
Dollars ($200,000), as referenced above. Upon the prior written approval of
the Grantor/Seller which approval cannot be unreasonably withheld, the
Grantee/Buyer may record the Notice to Extend and/or a Memorandum of the
Option as extended.
(b) Other than a one (1) year time period extension within
which the Buyer may extend its right to exercise the Option, all terms and
conditions of the Option as extended shall remain the same as for the
original Option Period. To the extent the closing of the subject Sale and
Purchase transaction shall occur on December 31, 2005, the financing option
identified in Paragraph 3(c) of this Agreement shall no longer be an
alternative for Buyer's payment of the Purchase price.
8. Closing. The closing of the purchase and sale of the Property
("Closing"), shall be held at the offices of Escrow Agent, at such time and
on such date ("Closing Date"), as may be mutually agreed upon by the Parties,
but in no event later than December 31, 2005.
9. Access and Inspection; Delivery of Documents and Information by
Seller; Examination by Buyer.
(a) Between the Effective Date and the Closing Date, Buyer and
Buyer's agents and designees shall have the right to enter the Property for
the purposes of inspecting the Property, conducting soil tests, and making
surveys, mechanical and structural engineering studies, environmental
assessments, and any other investigations and inspections as Buyer may
reasonably require to assess the condition of the Property; provided,
however, that such activities by or on behalf of Buyer on the Property shall
not materially damage the Property; and provided further, however, that Buyer
shall indemnify and hold Seller harmless from and against any and all claims
for injury to person or damage to property, to the extent directly resulting
from the activities of Buyer or Buyer's agents or designees on the Property,
excluding, however, claims arising out of the discovery of, or release of,
any Pollutants previously existing on the Property to the extent that the
release of said Pollutants is not caused by any act of the Buyer, the Buyer's
employees, agents or contractors.
It is understood and agreed that an oil well or xxxxx already
exist on the subject real estate Property. Therefore, not withstanding the
language immediately above, the Buyer shall have the obligation to indemnify
and hold harmless the Seller from and against any and all claims for injury
to person or damage to property to the extent that the Buyer, the Buyer's
employees, the Buyer's agents or contractors bring additional Pollutants onto
the Property or cause the release of previously secured Pollutants to escape.
The Buyer's inspection of the subject real estate and the
improvements thereon located shall not unreasonably interfere with the
Seller's operations thereon or the conduct of the Lessee businesses located
on the Property. To the extent that the Buyer, the Buyer's employees, the
Buyer's agents or contractors in the conduct of its or their inspections on
the Property require entry into a Lessees' demised premises, the Buyer, the
Buyer's employees, the Buyer's agents or contractors shall provide
forty-eight (48) hours prior notice to either Xxxxxxx X. Xxxxxxxxx or Xxxxxxx
Xxxxxxxxx of their request to go in and upon the particular demised premises
thus allowing the Seller to contact the Lessee or Lessees and arrange for
appropriate entry without undue interference of the Lessee's business being
conducted.
(b) On or before the expiration of fifteen (15) days after the
Effective Date, Seller shall deliver to Buyer, if not previously delivered,
or make available to Buyer for examination or copying by Buyer, at the
address for Buyer set forth below, the following documents and information
with respect to the Property, if any:
i) All surveys, plans, specifications, environmental,
engineering and mechanical data relating to the Property and the
Property, and including such items relating to tenant improvements and
reports such as soils reports and environmental audits, which are in
Seller's possession or which Seller can obtain with reasonable effort;
ii) All real property and other ad valorem tax bills and
utility bills regarding the Property and the Property for the two-year
period preceding the date of this Agreement;
iii) A full, correct and complete list and identifying
description of all of the Personalty;
iv) True, correct and complete copies of all documents
and correspondence relating to the Permits;
v) True, correct and complete copies of all documents
and correspondence relating to the Entitlements;
vi) True and correct copies of all Existing Leases
together with true and correct copies of any written amendments or
modifications or other agreements with respect to, or relating to, the
Existing Leases, and written disclosure of any oral agreements with
respect to, or relating to, the Existing Leases (collectively
"Supplemental Lease Agreements");
vii) A schedule ("Commission Schedule"), of all leasing,
rental, brokerage or other commissions, charges or fees payable with
respect to any of Existing Leases ("Commissions"), if any, setting
forth with respect to each of the Commissions the identities of the
Existing Leases to which the Commissions pertain, the identities of the
parties to whom the Commissions are payable, the amounts and methods of
payment of the Commissions, whether any Commissions are payable upon
renewals or extensions of the term of any Existing Leases, whether any
Commissions are payable upon the expansion of any premises covered by
any Existing Leases, and the formula for computing and the dollar
amount of the Commissions payable with respect to extensions or
renewals of the terms of, or expansion of the premises covered by, any
Existing Leases;
viii) True, correct and complete copies of all written
materials and other agreements pertaining to any of the Commissions; and
ix) A copy of any policy of title insurance issued in
favor of Seller, together with legible copies of all instruments
referenced therein.
(c) Buyer shall have until ninety (90) days after the Effective
Date ("Due Diligence Date") in which to examine and investigate the Property,
and to determine whether the Property is suitable and satisfactory to Buyer.
In the event that Buyer shall determine, in Buyer's sole and absolute
judgment and discretion, that the Property is in any manner unsuitable or
unsatisfactory to Buyer, then Buyer shall have the right, at Buyer's option,
to terminate this Agreement by giving written notice thereof to Seller on or
before the Due Diligence Date, in which event ONE HUNDRED AND NO/100 DOLLARS
($100.00) of the Xxxxxxx Money shall be delivered to Seller as consideration
for Seller's execution of and entry into this Agreement. The balance of the
Xxxxxxx Money shall be refunded to Buyer immediately upon request and all
rights and obligations of the parties under this Agreement shall expire, and
this Agreement shall become null and void. Seller acknowledges that Buyer
will expend time, money and other resources in connection with the
examination and investigation of the Property hereinabove described, and
that, notwithstanding the fact that Buyer may terminate this Agreement
pursuant to this paragraph, such time, money and other resources expended,
together with the payment of the portion of the Xxxxxxx Money hereinabove
described to be paid to Seller in the event of a termination of this
Agreement, constitute good, valuable, sufficient and adequate consideration
for Seller's execution of and entry into this Agreement. If Buyer gives
Escrow Agent notice of Buyer's having elected to terminate this Agreement
pursuant to this subparagraph (c), then: (i) Escrow Agent shall be, and is
hereby, absolutely, unconditionally and irrevocably authorized, directed and
instructed to disburse the Xxxxxxx Money as set forth in this subparagraph
(c) immediately upon receipt of a copy of such notice, without any inquiry as
to the propriety, effectiveness or timeliness of such termination and without
the requirement of any further authorization, direction or instruction from
either Seller or Buyer; and (ii) Seller covenants and agrees not to delay,
hinder or impede in any manner whatsoever the disbursement of the Xxxxxxx
Money as set forth in this subparagraph (c).
10. Prorations and Adjustments to Purchase Price.
(a) The following prorations and adjustments shall be made
between Buyer and Seller at Closing, or thereafter if Buyer and Seller shall
agree:
i) All city, state and county ad valorem taxes and
similar impositions levied or imposed upon or assessed against the
Property ("Taxes"), for the year in which Closing occurs shall be
prorated as of the Closing Date. In the event Seller has paid only a
portion of the Taxes billed for the year in which Closing occurs due to
the pendency of a protest of such Taxes, then, in connection with
Closing, Seller shall deposit with Escrow Agent an amount equal to
Seller's pro rata share of the resulting underpayment. Any such
deposit with Escrow Agent shall be held in escrow by Escrow Agent
pending final resolution of such protest, pursuant to escrow
instructions reasonably acceptable in form and substance to Buyer,
Seller, Escrow Agent and their respective counsel. In the event that,
after the Closing Date, any additional Taxes are levied, imposed upon
or assessed against the Property for periods prior to the Closing Date,
Buyer shall give Seller written notice of such Taxes, and Seller shall
be responsible for payment of such additional Taxes in full within the
time fixed for payment thereof and before the same become delinquent.
Without limiting the obligations of Seller pursuant to the immediately
preceding sentence, Seller shall, and does hereby, indemnify, defend
and hold Buyer harmless from and against any such additional Taxes
(including all interest and penalties assessed or imposed in connection
therewith) relating to periods prior to the Closing Date.
ii) It is agreed by and between the Buyer and the Seller
that during the Option Period, new and additional assessments or levies
may be imposed upon or assessed against the Property as a result of
development activities undertaken by the proposed Buyer or undertaken
by the Seller on behalf of and with the agreement of the Buyer.
Therefore, with respect to all development related assessments, such
charges shall be paid by the Buyer. Such payments, if any, made by the
Buyer will not be credited against the Purchase Price or prorated on
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the Date of Closing. As to all other assessment levied against or
imposed upon or assessed against the property pursuant to any
declaration of covenants effecting the Property during the Option
Period, such assessments shall be prorated as of the closing date of
the real estate transaction contemplated in this Agreement.
iii) All utility charges for the Property (including,
without limitation, telephone, water, storm and sanitary sewer,
electricity, gas and waste removal to the extent such utilities are
available on the Property as of the Closing Date) shall be prorated as
of the Closing Date). All transfer fees required with respect to any
such utility shall be paid by or charged to Buyer, and the Seller shall
be credited with any deposits transferred to the account of Buyer;
Provided, however, that at either party's election any one or more of
such utility accounts shall be closed as of the Closing Date, in which
event Seller shall be liable and responsible for all charges for
service through the Closing Date and shall be entitled to all deposits
theretofore made by Seller with respect to such utility, and Buyer
shall be responsible for reopening and reinstituting such service in
Buyer's name, and shall be responsible for any fees, charges and
deposits required in connection with such new account.
iv) All rents (including base rent, percentage rent and
all other rentals), payments for taxes, payments for insurance,
payments for common area maintenance charges, payments for operating
expenses and other payments on account of financial obligations of
tenants under the Existing Leases ("Tenant Financial Obligations"),
which have actually been paid as of the Closing Date shall be prorated
as of the Closing Date. In the event that, at the time of Closing,
there are any past due or delinquent Tenant Financial Obligations,
Buyer shall have the exclusive right, but not the obligation, to
collect such past due or delinquent Tenant Financial Obligations, and
shall remit to Seller its pro-rata share thereof, to the extent, and
only to the extent, that the aggregate amount received by Buyer from
each such tenant owing past due or delinquent Tenant Financial
Obligations exceeds the sum of: (i) the aggregate Tenant Financial
Obligations payable by such tenant for periods from and after the
Closing Date; and (ii) any amounts expended by Buyer to collect such
past due or delinquent Tenant Financial Obligations. Buyer shall have
no obligation to collect or enforce collection of any such past due or
delinquent Tenant Financial Obligations from or against any tenant. In
the event that any Tenant Financial Obligations paid by tenants under
the Existing Leases shall be based upon estimates of actual amounts due
and are subject to subsequent adjustment with the tenant, Seller and
Buyer shall make between themselves any equitable adjustment required
by reason of any such subsequent adjustment with the tenant at the time
of such subsequent adjustment. In the event that any Tenant Financial
Obligations payable by tenants under the Existing Leases shall be
payable after Closing for periods prior to Closing, Seller and Buyer
shall make between themselves any equitable adjustment required by
reason of such payments at the time of actual payment. Further, in the
event that, subsequent to Closing, Seller receives any payments of
Tenant Financial Obligations due from tenants under Existing Leases,
Seller shall properly endorse such payments to Buyer, and shall
promptly forward such payments to Buyer.
v) Buyer shall receive a credit against the Purchase
Price in the amount of all security deposits and other deposits
(whether or not refundable) paid by tenants and Seller shall retain
such funds free and clear of any and all claims on the part of
tenants. Buyer shall be responsible for maintaining as deposits the
aggregate amount so credited to Buyer in accordance with the provisions
of the Existing Leases relevant thereto.
vi) Any other items which are customarily prorated in
connection with the purchase and sale of properties similar to the
Property shall be prorated as of the Closing Date.
In the event that the amount of any item to be prorated is not determinable
at the time of Closing, such proration shall be made on the basis of the best
available information, and the parties shall re-prorate such item promptly
upon receipt of the applicable bills therefore and shall make between
themselves any equitable adjustment required by reason of any difference
between the estimated amount used as a basis for the proration at Closing and
the actual amount subject to proration. In the event any prorated item is
due and payable at the time of Closing, the same shall be paid at Closing.
If any prorated item is not paid at Closing, Seller shall deliver to Buyer
the bills therefore promptly upon receipt thereof and Buyer shall be
responsible for the payment in full thereof within the time fixed for payment
thereof and before the same shall become delinquent. In making the
prorations required by this paragraph, the economic burdens and benefits of
ownership of the Property for the Closing Date shall be allocated to Seller.
11. Title.
(a) Seller covenants to convey to Buyer at Closing good and
marketable fee simple title in and to the Property. For the purposes of this
Agreement, "good and marketable fee simple title" shall mean fee simple
ownership which is: (i) free of all claims, liens and encumbrances of any
kind or nature whatsoever other than the Permitted Exceptions, herein
defined; and (ii) insurable by Chicago Title Company of Colorado, Inc., at
then current standard rates under the standard form of ALTA owner's policy of
title insurance (ALTA Form B-1992), with the standard or printed exceptions
therein deleted, and without exception other than for the Permitted
Exceptions ("Title Policy"). For purposes of this Agreement, the term
"Permitted Exceptions" shall mean: (A) current city, state and county ad
valorem taxes not yet due and payable; (B) the rights of tenants, as tenants
only, under the Existing Leases; (C) all certain liens for water development
and sanitary sewer development; and (D) all easements for public utilities,
including, but not limited to, easements for water, sanitary sewer; easements
for electricity and gas; easements for oil pipelines; the rights of ways
associated with Second Creek as it traverses the subject real estate
property; any and all rights of way and easements appearing of public record;
(E) any matters to which Buyer does not object or with respect to which
Buyer waives its objection pursuant to this Agreement.
(b) On or before thirty (30) days from the Effective Date,
Seller shall cause to be prepared, at Seller's expense, and shall cause to be
delivered to Buyer's attorney (as set forth below Buyer's execution of this
Agreement), a commitment for the Title Policy ("Title Commitment"), issued by
Chicago Title of Colorado, Inc. ("Title Company"), committing to insure the
Seller's conveyance of the subject property in the face amount of the
Purchase Price. The delivery of the Title Commitment to Buyer's attorney
shall include legible photocopies of all documents referenced in the Title
Commitment ("Exception Documents").
(c) Buyer shall have until the Due Diligence Date in which to
examine the Title Commitment, the Exception Documents and the Survey and in
which to give Seller written notice of objections which render Seller's title
less than good and marketable fee simple title. Thereafter, Buyer shall have
until the Closing Date in which to reexamine title to the Property and in
which to give Seller written notice of any additional objections disclosed by
such reexamination; (Provided, however, Buyer shall not have the right in any
such subsequent notice of additional objections to object to any matters
reflected in the original or an earlier version of the Title Commitment
referenced in Buyer's original notice or a subsequent notice of objections).
Seller shall have until the Closing Date in which to satisfy all objections
specified in any notice of title objections given by Buyer. If Seller fails
so to satisfy any such objections, then, at the option of Buyer, Buyer may:
(i) terminate this Agreement, in which event the Xxxxxxx Money shall be
refunded to Buyer immediately upon request and all rights and obligations of
the parties under this Agreement shall expire, and this Agreement shall
become null and void; or (ii) satisfy the objections, after deducting from
the Purchase Price the cost of satisfying such objections if, but only if,
any such objections are based upon a lien, deed to secure debt, mortgage,
deed of trust, judgment or other liquidated sum ("Monetary Encumbrance"); or
(iii) waive such satisfaction and performance and consummate the purchase and
sale of the Property; or (iv) Seller or Buyer may extend the Closing Date for
a period of up to ninety (90) days next following the original scheduled
Closing Date to cure such objections; or (v) if, but only if, (A) any
objection is a Monetary Encumbrance, or (B) any objection arises or first
appears of record subsequent to the Effective Date, and arises through the
act of, or with the consent of, Seller, exercise such rights and remedies as
may be provided for or allowed by this Agreement. In the event of an
extension of the Closing Date by Buyer under clause (iv), above, and a
subsequent failure of Seller to cure any objection specified in any notice of
title objection given by Buyer, Buyer may then, to the extent applicable,
elect among the alternatives specified in clauses (i), (ii), (iii) and, if
applicable, (v), above.
(d) Notwithstanding any provision of this Agreement to the
Contrary, Seller: (i) shall deliver at Closing any affidavit and/or
indemnification agreement sufficient to cause the Title Policy to be issued
without exception for parties or tenants in possession or for mechanic's,
laborer's or materialman's liens ("Seller's Affidavit"); (ii) shall deliver
to the Title Company and Buyer at Closing evidence in form and substance
satisfactory to Buyer and to the Title Company ("Authority Documentation")
that Seller has the power and authority to execute and enter into this
Agreement and to consummate the sale of the Property, and that any and all
actions required to authorize and approve the execution of and entry into
this Agreement by Seller, the performance by Seller of all of Seller's duties
and obligations under this Agreement, and the execution and delivery by
Seller of all documents and other items to be delivered to the Title Company
or Buyer at Closing have been accomplished; (iii) shall deliver at Closing a
release or satisfaction of any Deed of Trust to secure debt, mortgage, and
related security instruments encumbering the Property, in form and substance
satisfactory to the Title Company at closing ("Release"); and (iv) if
applicable, shall cause to be delivered an estoppel certificate, issued by
the appropriate entity under any declaration of covenants or restrictions,
confirming that the Property is in compliance in all respects with such
declaration of covenants or restrictions, and that there are no delinquent
assessments of any type thereunder ("Estoppel").
(e) Notwithstanding any provision of this Agreement to the
contrary, the Grantee (Buyer) shall, (i) deliver at closing any affidavit or
Indemnification Agreement sufficient to cause the title policy to be issued
without exception for parties or tenants in possession or for mechanic's,
laborer's, or materialman's liens ("Buyer's Affidavit"); (ii) shall deliver
to the title company and Seller at closing evidence in form and substance
satisfactory to the Seller and to the Title Company ("Authority
Documentation") that Buyer has the power and authority to execute and enter
into this Agreement and to consummate the purchase of the Property, and any
and all other actions required to authorize the execution and entry into this
Agreement by the Buyer, the performance by Buyer of all Buyer's duties and
obligations under this Agreement, and the execution and delivery by Buyer of
all documents and other items to be delivered to the Title Company or to the
Seller at Closing have been accomplished.
12. Survey. Within thirty (30) days next following the Effective
Date, Seller shall: (i) cause a surveyor licensed in the State of Colorado,
and reasonably acceptable to Buyer, to prepare a current ALTA Survey of the
Property ("Survey"); (ii) cause such surveyor to execute a Surveyor's
Certification in the form of that attached hereto as Exhibit "D"; and
(iii) cause twelve (12) plats of the Survey and an executed original
counterpart of such Surveyor's Certification to be delivered to Buyer's
attorney. The Survey is agreed between the parties as the Survey shall be
performed in compliance with the ALTA specifications included on Exhibit "D"
attached hereto and incorporated herein by reference. The Survey shall
depict: (i) all information required to enable the surveyor to execute and
deliver the foregoing-described Surveyor's Certification; and (ii) the number
of acres contained in the Land to the nearest one-one hundredth (1/100) of an
acre.
13. Proceedings at Closing. On the Closing Date, the Closing shall
take place as follows:
(a) Seller shall deliver to Buyer the following documents and
instruments, duly executed by or on behalf of Seller, all of which shall be
in form and substance reasonably satisfactory to Buyer and its counsel:
i) A Special Warranty Deed ("Deed"), in recordable form,
conveying the Land and the Improvements subject only to the Permitted
Exceptions;
ii) An assignment transferring and assigning the
Entitlements and the Permits, including an assignment of the Tap
Rights, if any, in recordable form;
iii) The Seller's Affidavit;
iv) If Seller is not a Foreign Person, a Certificate and
Affidavit of Non-Foreign Status;
v) A Colorado Department of Revenue Form DR 1083,
Information With Respect to the Conveyance of a Colorado Real Property
Interest ("Form 1083");
vi) A completed 1099-S request for taxpayer
identification number and certification;
vii) A certificate, in form and substance satisfactory to
counsel for Buyer, to the effect that the representations and
warranties of Seller in this Agreement are true and correct on and as
of the Closing Date;
viii) The Authority Documentation;
ix) A Xxxx of Sale, with general warranty of title,
conveying the Personalty;
x) An Assignment of Tenant Leases, transferring and
assigning the Existing Leases, if applicable;
xi) The Release, if applicable; and
xii) The Estoppel, if applicable.
(b) Seller shall deliver to Buyer the following items, if the
same have not been previously delivered by Seller to Buyer:
i) The executed originals of the Existing Leases and the
Supplemental Lease Agreements;
ii) The originals, if any, of the Permits; and
iii) The originals of all books, records, correspondence,
memoranda, reports and other information and data pertinent to the
continued use, occupancy and operation of the Property.
(c) Buyer shall pay the remainder of the Purchase Price, after
crediting the Xxxxxxx Money Deposit and Option Payments and making the
adjustments and prorations provided for in this Agreement, to Seller in
accordance with the provisions of this Agreement. If required by the
withholding requirements described in subparagraph (a)(v), above, the Escrow
Agent and Title Company shall be entitled to withhold the applicable portion
of the Purchase Price, and to submit such portion of the Purchase Price to
the Colorado Department of Revenue.
(d) The Title Company shall irrevocably commit to insure the
Title Policy, without exception other than for the Permitted Exceptions.
14. Costs of Closing. Seller shall pay all recording costs and other
costs relating to any title clearance documents, the premium for the Title
Policy, the charges for the Survey, and Seller's attorneys' fees. Buyer
shall pay all transfer taxes and recording costs relating to the recordation
of the Deed and Buyer's attorneys' fees. All other costs and expenses of the
transaction contemplated hereby shall be borne by the party incurring the
same.
15. Warranties, Representations, and Additional Covenants of the
Buyer. As of the Effective Date, Buyer or Grantee represents, warrants, and
covenants to Seller, knowing that the Seller is relying on each such
representation, warranty, and covenant that:
(a) Hastings Holding Corporation is a Colorado corporation duly
organized, validly existing, and in good standing under the laws of the State
of Colorado and authorized to transact its business in the corporate form in
the State of Colorado.
(b) Buyer has the lawful right, power, authority, and financial
capacity to purchase the property in accordance with the terms, provisions,
and conditions of this Agreement.
(c) There are no actions, suits, or proceedings pending or
threatened against or affecting the ability of the Buyer or which question
the validity or enforceability of this Agreement. The Buyer represents and
warrants that it is not subject to any action in any court or before any
governmental authority, domestic or foreign, which would prevent or impede
the required performances of the Buyer under and pursuant to the terms of
this Agreement.
(d) The execution of and entry into this Agreement; the
execution and delivery of the documents and instruments to be executed and
delivered by the Buyer on the closing date, and, the payment of all amounts
due hereunder this Agreement by virtue of the Buyer entering into this
Agreement and the performance by the Buyer of the Buyer's duties and
obligations under this Agreement and of all other acts necessary and
appropriate for the full consummation of the purchase of the property
contemplated by and provided for in this Agreement, are consistent with and
not in violation of, and will not create any adverse condition under, any
contract, agreement, other instrument to which the Buyer is a party, any
judicial order or judgment of any nature by which the Buyer is bound; and,
this Agreement, and the covenants and agreements of the Buyer under this
Agreement, are the valid and binding obligations of the Buyer and enforceable
in accordance with their terms.
(e) All corporate action has been taken by the Buyer
authorizing and approving the execution of and entry into this Agreement.
The Buyer will deliver to Seller's counsel on or about the date of the
execution of this Agreement their Corporate Resolutions authorizing the Buyer
to enter into this Agreement. In addition, and not in limitation of the
above, the execution and delivery by the Buyer of the documents and
instruments to be executed and delivered by the Buyer on the Closing Date, as
well as the payments required under this contract and the performance by the
Buyer of the Buyer's duties and obligations in entering into this Agreement
and the performance of all other acts necessary and appropriate for the
consummation of the purchase of the property as contemplated by and provided
for this Agreement has been ratified and approved by the Buyer's Stockholders
and Board of Directors and may be relied upon by the Seller in executing this
Agreement.
(f) On the closing date, either: (i) There will be no
indebtedness to any contractor, laborer, mechanic, material man, architect,
engineer, or any other person for work, labor, or services performed or
rendered, or for materials supplied or furnished, in connection with the
property for which any such person or entity could claim a lien against the
property; or, (ii) the Buyer will provide at closing such assurances and
collateral therefore as the Seller's Title Insurer requires to insure the
Seller's title to the property without exception.
(g) Buyer hereby acknowledges and represents that as of the
Closing Date the Buyer will have thoroughly investigated all elements and
constituents of the property. The Buyer acknowledges that as of the closing
date it will have examined and is therefore familiar with all underlying or
applicable leases, licenses, uses, permits, and environmental issues, if any,
relating in any manner to the property being purchased. The Buyer, as of the
Closing Date acknowledges, represents, and warrants that it will be relying
upon its own judgment and decision in closing the within referenced
transaction.
(h) The Buyer acknowledges and agrees that as of the Closing
Date it has had the opportunity to make all inspections and investigations
and has been furnished with all information necessary to make an informed
decision to purchase the property in accordance with the terms and provisions
of this Agreement and for the Purchase Price recited in Paragraph 3(c) of
this Agreement. Having conducted said due diligence investigations, the
Buyer is satisfied with the results thereof and as of Closing, the Buyer will
be satisfied with the results thereof and therefore desires to close the
purchase and sales transaction in accordance with the terms and provisions of
this Agreement.
(i) The Buyer acknowledges and agrees that it has had the
opportunity and benefit of accounting and legal counsel in helping it
formulate its decision to enter into this Agreement and close the purchase
and sale transaction in the manner and form contemplated by this Agreement.
(j) The Buyer represents and warrants that it is not under any
legal disability nor is there any litigation, tax proceeding, administrative
proceeding, claim, or liability which would prevent it from voluntarily and
knowingly entering into this Agreement in an informed and business like
manner and closing the transaction contemplated in this Agreement.
(k) The Buyer represents and warrants that it is financially
capable of completing the obligations of the Buyer in a timely manner as
required in this Agreement.
(l) Buyer will not cause or knowingly permit any action to be
taken which will cause any of the foregoing representations, warranties, or
covenants of the Buyer to be untrue or unperformed on the Closing Date; and,
Buyer will not cause or knowingly permit any actions to be taken which will
cause any of the conditions set forth in Paragraph 16 below to be unsatisfied
or unperformed on the closing date.
(m) Buyer will deliver on the Closing Date all documents and
instruments required by this Agreement and perform all acts necessary or
appropriate for the purchase and sale of the property as contemplated in this
Agreement.
Because of the length of term of this Option Agreement, the
Buyer shall be required to recertify to Seller each of its Representations,
Warranties and Covenants contained herein each year in conjunction with the
annual payment of the Option Payment required under the terms and provisions
of this Option Agreement.
16. Sellers' Representations, Warranties, and Additional Covenants.
As of the Effective Date, the Seller/Grantor, Broncucia Investment, a
Colorado General Partnership, represents, warrants and covenants to and with
the Buyer, knowing that the Buyer is relying on each such representation,
warranty, and covenant that:
(a) To the actual knowledge of Seller, there are no prepaid tap
rights and other rights with regard to water and sewer taps pertaining to the
Property ("Tap Rights"). However, both the Seller and the Buyer acknowledge,
understand, and agree that the Seller has granted to the South Xxxxx County
Water and Sanitation District a permanent easement which crosses the land of
the Buyer and which is the subject matter of this transaction for the
installation and maintenance of the sanitation sewer main line. In addition,
the Buyer upon Seller's behalf at this point in time has committed to
participate in the FRICO Water Project initiated by the South Xxxxx Water and
Sanitation District in conjunction with the Northern Infrastructure General
Improvement District in Xxxxx County.
(b) The Sellers acknowledge and agree that they have had the
opportunity and benefit of accounting and legal counsel helping them
formulate their decision to enter into this Agreement and close the purchase
and sale transaction in the manner and form contemplated by this Agreement.
(c) The Seller represents and warrants that it is not under any
legal disability nor is there any litigation, tax proceeding, administrative
proceeding, claim, or liability which would prevent it from voluntarily and
knowingly entering into this Agreement in an informed and business like
manner and closing the transaction contemplated in this Agreement.
(d) Seller is a Colorado general partnership, duly organized,
validly existing and in good standing under the laws of the State of
Colorado, and Seller is authorized to transact business in the State of
Colorado.
(e) Seller has the lawful right, power, authority and capacity
to sell the Property in accordance with the terms, provisions and conditions
of this Agreement.
(f) There are no actions, suits or proceedings pending or
threatened against, by or affecting Seller which affect title to the Property
or which question the validity or enforceability of this Agreement or of any
action taken by Seller under this Agreement, in any court or before any
governmental authority, domestic or foreign.
(g) The execution of and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Seller on the Closing Date, and the performance by Seller of
Seller's duties and obligations under this Agreement and of all other acts
necessary and appropriate for the full consummation of the purchase and sale
of the Property as contemplated by and provided for in this Agreement, are
consistent with and not in violation of, and will not create any adverse
condition under, any contract, agreement or other instrument to which Seller
is a party, any judicial order or judgment of any nature by which Seller is
bound; and this Agreement, and the covenants and agreements of Seller under
this Agreement, are the valid and binding obligations of Seller, enforceable
in accordance with their terms.
(h) All action required under the Partnership Agreement has
been taken by Seller authorizing and approving the execution of and entry
into this Agreement, the execution and delivery by Seller of the documents
and instruments to be executed and delivered by Seller on the Closing Date,
and the performance by Seller of Seller's duties and obligations under this
Agreement and of all other acts necessary and appropriate for the
consummation of the purchase and sale of the Property as contemplated by and
provided for in this Agreement.
(i) Seller has "good and marketable fee simple title" as
defined in Paragraph (11) of this Agreement subject to the permitted
exceptions likewise defined in Section (11a) of this Agreement. Seller owns
all of the Personalty existing on the subject premises subject to the
exceptions set forth in Schedule 1(c) of this contract relating to the
Lessee's Personalty. None of the Personality owned by Seller is leased.
(j) On the Closing Date, either: (A) there will be no
indebtedness to any contractor, laborer, mechanic, materialman, architect,
engineer or any other person for work, labor or services performed or
rendered, or for materials supplied or furnished, in connection with the
Property for which any such person could claim a lien against the Property;
or (B) Seller will provide at Closing such assurances, and collateral
therefore, as Buyer's title insurer requires to insure Buyer's title to the
Property without exception therefore.
(k) Except as disclosed on Schedule 16(k), to the actual
knowledge of Seller, there are no encroachments on the Land, and the
Improvements are situated entirely within the boundaries of the Land.
(l) Except as disclosed on Schedule 16(l), the Property is not
subject to any use, development or occupancy restrictions (except those
imposed by applicable zoning and subdivision laws and regulations and the
Existing Leases), special taxes and assessments or utility "tap-in" fees
(except those generally applicable throughout the tax district in which the
Property is located), or charges or restrictions, whether existing of record
or arising by operation of law, unrecorded agreement, the passage of time or
otherwise (other than the Permitted Exceptions).
(m) Seller will pay or cause to be paid promptly when due all
city, state and county ad valorem taxes and similar taxes. The Buyer shall
pay all sewer and water development charges and all other governmental
charges levied or imposed upon the subject Property or assessed against the
Property by reasons of the inclusion of the Property into the Northern
Infrastructure General Improvement District and/or the South Xxxxx County
Water and Sanitation District. However, and to the extent this Agreement is
terminated, the Buyer shall assign any and all rights, title and interest in
and to said Agreements with the South Xxxxx County Water and Sanitation
District and the Northern Infrastructure General Improvement District to the
Seller and the Seller shall reimburse the Buyer for all charges paid by the
Buyer during the term of this Option Agreement and relating to charges
actually paid by the Buyer by reason of the subject Property's inclusion into
the Special Improvement Districts referenced herein. With the exception of
development charges as the terminology is defined in this paragraph, the
Seller will pay or cause to be paid all expenses incurred in the use,
occupancy, and operation of the Property between the effective date of this
Agreement and the Closing date.
(n) Except as disclosed on Schedule 16(n) and to the best
information and knowledge of the Seller, (i) no portion of the Land is
located within any Special Flood Hazard Area designated by the Federal
Emergency Management Agency, or in any area similarly designated by an agency
of any other governmental authority; (ii) no portion of the Land meets the
definition of "wetlands" as codified at 40 C.F.R. part 230.3(t), or has been
similarly designated by any agency of any governmental authority; and (iii)
no portion of the Land constitutes "wetlands" that have been filled, whether
or not pursuant to appropriate permits.
(o) To the best knowledge and belief of Seller, no portion of
the Land is subject to any other classification, designation or preliminary
determination of any agency of any federal, state or local government, or
pursuant to any federal, state or local law, which would restrict the use,
development, occupancy or operation of the Property, including, without
limitation, any designation or classification as an archeological site, any
classification or determination under the Endangered Species Act, or any
designation as an historical site.
(p) With the exception of those uses, development and occupancy
restrictions listed on Schedule 16(p) attached hereto and incorporated herein
by reference and subject to those utility tap-in fees, development charges
and other expenses attributable to the inclusion of the subject real estate
property into the Northern Infrastructure General Improvement District and
the South Xxxxx County Water and Sanitation District and the City of Commerce
City, Colorado, to the best, knowledge and belief of the Seller of the
Property is not subject to any use, development, or occupancy restrictions
either existing of record or arising by operation of the law, unrecorded
agreement, the passage of time, or otherwise (other than the Permitted
Exceptions) except as disclosed on Schedule 16(r).
(q) Except as disclosed on Schedule 16(q) no portion of the
Property is used or, during the period of Seller's ownership of the Property,
has been used for the storage, processing, treatment or disposal of
Pollutants; to the actual knowledge of Seller, no portion of the Property has
been used for the storage, processing, treatment or disposal of Pollutants
prior to the period of Seller's ownership of the Property; no Pollutants have
been placed in the Improvements during the period of Seller's ownership of
the Property; to the actual knowledge of Seller, the Improvements do not
contain, nor have they ever contained, Pollutants; no Pollutants have been
released, introduced, spilled, discharged or disposed of, nor has there been
a threat of release, introduction, spill, discharge or disposal of a
Pollutant, on, in, or under the Property during the period of Seller's
ownership of the Property or, to the actual knowledge of Seller, anytime
prior thereto; there are no pending claims, administrative proceedings,
judgments, declarations or orders, whether actual or threatened, relating to
the presence of Pollutants on, in or under the Property; the Property is in
compliance with all federal, state and local laws, regulations, orders and
requirements regarding the regulation of Pollutants; to the actual knowledge
of Seller, no Pollutants have been released, introduced, spilled, discharged
or disposed of on, in or under any adjacent property; and, to the actual
knowledge of Seller, there are no underground storage tanks located on or in
the Property. As used in this Agreement, "Pollutants" means any material or
substance, or combination of materials or substances, which by reason of
quantity, concentration, composition, or characteristic is or in the future
becomes regulated under any federal, state or local environmental or common
law, rule, regulation, ordinance or requirement, as may be amended, replaced
or superseded, and shall include, without limitation: (i) any hazardous
substance as defined by the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C.A.ss.9601 et seq.; (ii) any material
identified as a hazardous waste under the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, 42 X.X.X.X.xx. 6901 et
seq.; (iii) any material regulated as a toxic pollutant as defined under the
Federal Water Pollution Control Act, 33 X.X.X.X.xx. 1251 et seq.; (iv) any
hazardous substance or toxic pollutant as defined under the Federal Water
Pollution Control Act, 33 X.X.X.X.xx. 1251 et seq.; (v) any hazardous
substance as defined by the Oil Pollution Act, 33 X.X.X.X.xx. 2701 et seq.;
(vi) any hazardous air pollutant as defined under the Federal Clean Air Act,
42 X.X.X.X.xx. 7401 et seq.; (vii) any substance regulated under the Federal
Insecticide, Fungicide and Rodenticide Act, 7 X.X.X.X.xx. 135 et seq.; (viii)
a special nuclear or byproduct material within the meaning of the Atomic
Energy Act, 42 X.X.X.X.xx. 2014 et seq.; and (ix) any material or substance,
or combination of materials or substances displaying any explosive, volatile,
radioactive, toxic, corrosive, flammable, ignitable or reactive
characteristic or which may cause a nuisance, injury, harm or degradation to
human health, welfare or the environment.
(r) To the actual knowledge and belief of the Seller the
subject real estate property is zoned as follows:
A. The Property shall be zoned Planned Unit Development
(PUD) with the following uses assigned:
i) The Second Creek Raceway shall be granted a five-year
Conditional Use Permit as a component of the PUD with specific performance
standards outlined in Exhibit "B"). At the end of the five years, the
racetrack operator may apply for renewal of said conditional use; however,
the CITY is under no obligation to grant the same as public hearings shall be
held at that time to determine any extension of the conditional use.
ii) The Rocky Mountain Speedway shall be granted a
five-year Conditional Use Permit as a component of the PUD with specific
performance standards outlined in Exhibit "B"). At the end of the five
years, the racetrack operator may apply for renewal of said conditional use;
however, the CITY is under no obligation to grant the same as public hearings
shall be held at that time to determine any extension of the conditional use.
iii) Failure to comply with the specific performance
conditions of the Conditional Use Permits as described in Exhibit "B" granted
to Second Creek Raceways and Rocky Mountain Speedway may result in revocation
of the respective Conditional Use Permits.
iv) Areas not utilized on the subject Property by either
Conditional Use Permit shall be allowed to conduct any use presently defined
as a Use by Right in the Agricultural Zone District of the Commerce City
Zoning regulations as in effect at the time of annexation and zoning
contemplated by this Agreement. Any other desired uses shall not be
conditions of this Agreement and shall be subject to the rules, regulations
and procedures of the ordinances of the CITY. Uses of an interim or
temporary nature must be submitted for review by the Planning Commission and
approval by City Council under the PUD provisions of the zoning of this
Property.
B. The PUD uses assigned in Section 6.A. above shall be
allowed to operate as long as the Property is used for agricultural purposes
and as authorized by the Conditional Use Permits. At such time as the
Conditional Use Permits expire and/or the Property is redeveloped for uses
other than those assigned in Section 6.A. of this agreement, the Property
owner or authorized representative may file a PUD Final Development Plan -
Redevelopment Plan. Said plan shall conform to the PUD standards of the City
Zoning Ordinance and shall allow only residential and commercial uses as
provided for by the Commerce City Zoning Ordinance in effect at the time of
execution of this agreement as shown on attached Exhibit "C", except that
machinery and trailer sales are excluded uses and auto sales and auto repair
are uses which must be specifically applied for and approved by the City
Council.
Any use or reuse of the Property other than as allowed in
Section 6.A. of this agreement shall be subject to review by the Planning
Commission and approved by City Council as an amendment to the Final
Development Plan - Redevelopment Plan.
C. Annexor acknowledges the proximity of the New Denver
Airport to the Property and covenants and agrees that no residential uses
shall be developed, allowed, or approved on this Property or portion thereof
identified as being within the 60 LDN noise contour area.
D. Any license applications for the sale of liquor or
fermented malt beverages on the Property shall be filed and considered by the
City pursuant to law.
Note: (The uses above delineated are due to expire in November of 2004.)
====
(s) The Land constitutes either a previously subdivided lot in
compliance with applicable subdivision regulations and similar governmental
requirements, or was created in a manner not subject thereto; and no
subdivision filing or approval or similar governmental filing or approval is
required as a condition precedent to the conveyance of the Land on the
effective date of this contract.
(t) The Property is not and has not been subject to any
exemption from real property taxes that will result in imposition of any tax
or penalty upon the transfer of title at Closing or any change in use of the
Property.
(u) The improvements on the subject Property are not
constructed, occupied, used or operated in violation of and are not otherwise
in violation of, and Seller has received no notice of any violations or
potential violation of any, zoning, building, health, environmental or other
laws, codes, ordinances, regulations, orders or requirements of any city,
county, state or other governmental authority having jurisdiction thereof, or
any private restrictive covenants affecting the Property; and all
certificates, licenses, permits, authorizations, consents and approvals
required by any such governmental authority for the continued use, occupancy
and operation of the Property have been obtained, are paid for, and are free
of restrictions.
(v) Except as disclosed on Schedule 16(v) there are no pending,
threatened or contemplated condemnation actions involving all or any portion
of the Property; and, to the best of Seller's actual knowledge, there are no
existing, proposed or contemplated plans to widen, modify or realign any
public rights-of-way located adjacent to any portion of the Land.
(w) To the best of Seller's knowledge and belief, no utilities
other than electricity, gas, and telephone are available on the subject
property. To the best of Seller's knowledge and belief, other utilities
including, but not limited to water, storm sewer and sanitary sewer, and
cable television may become available on the Land through private easements
or properly dedicated public easements in capacities sufficient to serve and
operate the Property at some point in the future.
(x) To the best of Seller's actual knowledge, with the
exception of the possibility that access to the subject property may be
limited or restricted with respect to the use of Xxxxxxx Road, to the best of
Seller's knowledge and belief adequate access to the Land is accorded through
00xx Xxxxxx.
(y) There are no management, maintenance, service or other
contracts with respect to the Property.
(z) The Improvements located on the subject Property are being
sold in their "as is" condition as the same exists on the date of Closing.
(aa) Seller is not a party to any agreement of any kind which
deals with wages, conditions of employment, benefits or other matters
affecting the employer/employee relationship with any union, labor
organization or employee group; there are no controversies pending or, to
the actual knowledge of Seller, threatened, between Seller and any union,
labor organization or employee group representing, or seeking to represent,
any of its employees; there has been no attempt by any union, labor
organization or employee group to organize any of Seller's employees at any
time during the period of Seller's ownership of the Property or, to the
actual knowledge of Seller, any time prior thereto; and Seller has complied
in all material respects with all applicable governmental requirements
relating to wages, hours, health and safety, payment of social security
withholding and other taxes, maintenance of workers' compensation insurance,
labor and employment relations and employment discrimination.
(bb) Between the date hereof and the Closing Date, Seller: (i)
shall comply with all obligations of the "lessor" or "landlord" under the
Existing Leases and any Supplemental Lease Agreements; (ii) shall continue to
carry and maintain in force all existing policies of casualty and public
liability insurance with respect to the Property; (iii) shall not make or
enter into any new lease or other agreement for the use, occupancy or
possession of all or any part of the Property without the prior written
approval of Buyer, which approval may be withheld in Buyer's sole and
absolute discretion; and (iv) shall not enter into any brokerage commission
or fee agreement or arrangement with respect to any Existing Lease without
the prior written approval of Buyer.
(cc) The Existing Leases scheduled and identified on the Rent
Schedule attached hereto are the only leases or other agreements for use,
occupancy or possession presently in force with respect to all or any portion
of the Property.
(dd) The Existing Leases are all presently in full force and
effect, have not been modified, supplemented or amended, and are the entire
agreement between Seller and the "lessees" or "tenants" thereunder; Seller
has fully and completely performed all of the duties and obligations of the
"lessor" or "landlord" under the Existing Leases arising on or before the
date hereof; there are no obligations of the "lessor" or "landlord" under any
of the Existing Leases to make or to pay for any improvements, alterations or
additions to the premises covered thereby; with the exception of those
matters listed on Schedule 16(dd)(1) attached hereto. There are no defaults
by the "lessees" or "tenants" under any of the Existing Leases, or any
existing conditions that could become defaults with the passage of time; with
the exception of these tenant payments reflected as Schedule 16(dd)(2), there
are no rentals which have been paid under any of the Existing Leases more
than one (1) month in advance; there are no rent concessions or off-sets with
respect to any of the Existing Leases; with the exception of those matters
set forth on Schedule 16(dd)(3) there are no options in favor of the
"lessees" or "tenants" under any of the Existing Leases to purchase all or
any portion of the Property; with the exception of those matters identified
on Schedule 16(dd)(4) there are no options in favor of the "lessees" or
"tenants" to renew or extend the term of any of the Existing Leases, except
as expressly set forth on the Rent Schedule; and all of the foregoing
representations and warranties shall be true and correct with respect to the
Existing Leases and any Supplemental Lease Agreements on and as of the
Closing Date.
(ee) All information and data furnished by Seller to Buyer with
respect to the Property will be true, correct, complete and not misleading in
any material respect.
(ff) Seller will not cause or knowingly permit any action to be
taken which will cause any of the foregoing representations, warranties or
covenants to be untrue or unperformed on the Closing Date; and Seller will
not cause or knowingly permit any action to be taken which will cause any of
the conditions of Buyer's obligations set forth in Paragraph 17, below, to be
unsatisfied or unperformed on or as of the Closing Date.
(gg) Seller will deliver on the Closing Date all documents and
instruments required by this Agreement and perform all acts necessary or
appropriate for the consummation of the purchase and sale of the Property as
contemplated by and provided for in this Agreement.
(hh) Seller represents and warrants that it has no employees.
If Seller acquires any employees, Seller shall pay, satisfy, perform and be
obligated and responsible for, any employee of Seller. Seller shall be
responsible for, and shall pay in full at or before Closing, all employee
costs for the Property Employees applicable to or owing for periods through
and including the Closing Date, or accrued as of the Closing Date. For the
purposes of this Agreement, "employee costs" shall mean and include all fees,
wages, salaries and other compensation, and the costs and expenses of workers
compensation insurance, vacation pay, sick pay, pension, profit sharing,
health insurance, other insurance, other employee benefits, social security
taxes, unemployment insurance, and all other federal, state and local
employment taxes. Seller shall comply with all applicable laws pertaining to
the rights of the Property Employees after termination of their employment by
Seller, including, without limitation, providing COBRA insurance coverage as
required by law.
Because of the term of the Option, Buyer shall be required
to certify to Seller each of the Representations, Warranties and Covenants
contained herein each year in conjunction with payment of the Option Payment
17. Conditions of Buyer's Obligations. Buyer's obligation to
consummate the purchase and sale of the Property on the Closing Date shall be
subject to the satisfaction or performance of the following terms and
conditions, any one or more of which may be waived in writing by Buyer, in
whole or in part, on or as of the Closing Date:
(a) Seller shall have fully and completely kept, observed,
performed, satisfied and complied with all terms, covenants, conditions,
agreements, requirements, restrictions and provisions required by this
Agreement to be kept, observed, performed, satisfied or complied with by
Seller before, on or as of the Closing Date;
(b) The representations and warranties of Seller in this
Agreement (and the substantive facts contained in any representations and
warranties limited to Seller's knowledge and belief) shall be true and
correct, and certified by Seller to Buyer as such, on and as of the Closing
Date, in the same manner and with the same effect as though such
representations and warranties had been made on and as of the Closing Date;
(c) Buyer shall not have terminated this Agreement pursuant to
an express right so to terminate set forth in this Agreement;
(d) Unless otherwise approved in writing by the Buyer, Title to
the Property shall be in the condition required by this Agreement, and no
matters affecting title to the Property shall have been filed or recorded
between the effective date of Buyer's most recent update of the Title
Commitment and recordation of the Deed;
(e) Due to the fact that this Contract contemplates a delayed
Closing of the transaction herein set forth to the extent any portion of the
property is leased at the time of the Closing of this transaction Seller
shall be required to deliver to the Buyer an estoppel certificate form
attached hereto as Exhibit "E" executed by or on behalf of the "lessee" or
"tenant" under each of the Existing Leases; Provided, however, that the
foregoing condition shall not be deemed to have been satisfied or performed
unless all information contained in each such estoppel certificate conforms
to all applicable information set forth on the Rent Schedule adjusted from
day to day as the leases provide or as may be agreed to by Buyer; and, Seller.
It is understood and agreed by and between the parties that
should the Grantee/Buyer exercise this Option Agreement and the financing
alternatives delineated in Section 3(c)(ii) and a Closing takes place prior
to the expiration of terms of any of the leases identified in Exhibit B-I,
attached hereto, Seller shall at Closing assign all of its rights and
obligations in said lease including, but not limited to, the right to receive
all rents becoming due and owing subsequent to said Closing.
(f) Subject to such changes as may be approved in writing by
Buyer, on the Closing Date, the Property shall be in substantially the same
condition as it was on the Due Diligence Date.
If any of the foregoing conditions have not been satisfied
or performed or waived in writing by Buyer on or as of the Closing Date,
Buyer shall have the right, at Buyer's option, either: (i) to terminate this
Agreement by giving written notice to Seller on or before the Closing Date,
in which event all rights and obligations of Seller and Buyer under this
Agreement shall expire, and this Agreement shall become null and void; or
(ii) if such failure of condition constitutes a breach of representation or
warranty by Seller, constitutes a failure by Seller to perform any of the
terms, covenants, conditions, agreements, requirements, restrictions or
provisions of this Agreement, or otherwise constitutes a default by Seller
under this Agreement, to exercise such rights and remedies as may be provided
for herein this Agreement. In either of such events, the Xxxxxxx Money or
the Deposit, as the case may be, shall be refunded to Buyer immediately upon
request.
18. Condition of Seller's Obligations. Seller's obligation to
consummate the purchase and sale of the Property on the Closing Date shall be
subject to the satisfaction or performance of the following conditions, any
one or more of which may be waived in writing by the Seller in whole or in
part, on the Closing Date:
(a) The Buyer shall have fully and completely kept, observed,
performed, satisfied and complied with all terms, covenants, conditions,
agreements, requirements, restrictions and provisions required of the Buyer
under this Agreement throughout the term of this Option Agreement and on the
Closing Date;
(b) The representations and warranties of the Buyer in this
Agreement (and the substantive facts contained in any representation and
warranties limited to the Buyer's knowledge and belief) shall be true and
correct, and certified by the Buyer to the Seller as such, on and as of the
Closing Date, in the same manner and with the same force and effect as though
such representation and warranty had been made on and as of the Closing Date;
(c) The Seller shall not have terminated this Agreement
pursuant to an expressed right to terminate as set forth in this Agreement or
by reason of the default of the Buyer with regard to the Payment Provisions
or any performance provisions required of the Buyer in this Agreement;
(d) If any of the foregoing provisions have not been satisfied
or performed or waived in writing by the Seller on or as of the Closing Date,
the Seller shall have the right, at Seller's option: (i) to terminate this
Agreement by giving written notice to the Buyer in the manner set forth in
this Agreement on or before the Closing Date in which event all rights and
obligations of the Seller and the Buyer under this Agreement shall expire and
this Agreement shall become null and void or (ii) if any such failure of
condition constitutes a breach of any representation or warranty by the
Buyer, constitutes a failure by the Buyer to perform any of the terms,
covenant, conditions, agreements, requirements, restrictions, or provisions
of this Agreement, or otherwise constitutes a default by the Buyer under this
Agreement, the Seller shall be authorized to exercise such rights and
remedies as may be provided to remedy such breach or default under this
Agreement. In either of such events, the Xxxxxxx Money and all Option
Payments shall be deemed forfeited to Seller without further action by any
party hereto.
19. Possession at Closing. Seller shall surrender possession of the
Property to Buyer on the Closing Date.
20. Remedies.
(a) If the purchase and sale of the Property is not consummated
in accordance with the terms and conditions of this Agreement due to
circumstances or conditions which constitute a default by Buyer under this
Agreement, the Xxxxxxx Money Deposit shall be delivered to Seller, and shall
be retained by Seller, as full Liquidated Damages for such default. Seller
and Buyer acknowledge that Seller's actual damages in the event of a default
by Buyer under this Agreement will be difficult to ascertain, that such
Liquidated Damages represent Seller's and Buyer's best estimate of such
damages, and that Seller and Buyer believe such Liquidated Damages are a
reasonable estimate of such damages. Seller and Buyer expressly acknowledge
that the foregoing Liquidated Damages are intended not as a penalty, but as
full Liquidated Damages, in the event of Buyer's default and as compensation
for Seller's taking the Property off the market during the term of this
Agreement. Such delivery of the Xxxxxxx Money, retention of the Deposit and
paid Option Payments, as the case may be, shall be the sole and exclusive
remedy of Seller by reason of a default by Buyer under this Agreement, and
Seller hereby waives and releases any right to xxx Buyer, and hereby
covenants not to xxx Buyer, for specific performance of this Agreement or to
prove that Seller's actual damages exceed Xxxxxxx Money or the Deposit, as
the case may be, which is herein provided Seller as full Liquidated Damages.
(b) If (i) any representation or warranty of Seller set forth
in this Agreement shall prove to be untrue or incorrect in any respect, or
(ii) Seller shall fail to keep, observe, perform, satisfy or comply with,
fully and completely, any of the terms, covenants, conditions, agreements,
requirements, restrictions or provisions required by this Agreement to be
kept, observed, performed, satisfied or complied with by Seller, or (iii) the
purchase and sale of the Property is otherwise not consummated in accordance
with the terms and provisions of this Agreement due to circumstances or
conditions which constitute a default by Seller under this Agreement (the
matters described in the foregoing clauses (i), (ii) and (iii) are herein
sometimes collectively called "Seller Defaults"), the Xxxxxxx Money shall be
refunded to the Buyer immediately upon request. Such refund of the Xxxxxxx
Money shall be the sole and exclusive remedy of the Buyer by reason of a
default by the Seller under this Agreement and the Buyer waives and releases
any right to xxx the Seller and hereby covenant not to xxx the Seller for
specific performance of this Agreement or to prove that Buyer's actual
damages exceed the Xxxxxxx Money Deposit.
21. Indemnification by the Seller. Except to the extent that any
damages occur to the Property or are incurred by the Seller as a result of
the actions or omissions to act or negligence of the Buyer or their agents,
employees or contractors, the Seller shall, and does hereby, indemnify,
defend and hold Buyer harmless from, against and in respect of: (i) physical
injury to or the death of persons or damage to property occurring prior to
and including the Closing Date or in any manner arising out of, by reason of
or in connection the Seller's use, occupancy or operation of the Property;
(ii) any matter arising out of, by reason of or with respect to the ownership
or operation of the Property prior to and including the Closing Date; (iii)
any breach by Seller of any representation or warranty under this Agreement;
(iv) any and all actions, causes of action, suits, claims, demands,
judgments, liens, proceedings and investigations or (any appeal thereof or
relative thereto or other review thereof), of any kind or nature whatsoever,
arising out of, by reason of, as a result of or in connection with any of the
matters addressed herein which are the responsibility of the Seller; and (v)
any and all liabilities, damages, losses, costs, expenses (including
attorney's fees and costs advanced by counsel), amounts of judgment,
assessments, fines or penalties, and amounts paid in compromise or
settlement, suffered, incurred or sustained by the Buyer on account of, by
reason of, as a result of or in connection with any of the matters covered by
this indemnity provision.
22. Indemnification by the Buyer. Except to the extent that any
damages are incurred by the Sellers or the Property shall incur any damages
as a result of the actions, omissions to act or negligence of the Seller's
agents, employees or contractors, the Buyer shall and does hereby, indemnify,
defend and hold Seller harmless from, against and in respect of: (i) physical
injury to or the death of persons or damage to property occurring prior to
and including the Closing Date or in any manner arising out of, by reason of
or in connection with the Buyer's use, occupancy or operations on or conduct
on the Property; (ii) any matter arising out of, by reason of or with respect
to the use and development of the Property by the Buyer prior to and
including the Closing Date; (iii) any breach by the Buyer of any
representation or warranty under this Agreement; (iv) any and all actions,
causes of action, suits, claims, demands, judgments, liens, proceedings and
investigations or (any appeal thereof or relative thereto or other review
thereof), of any kind or nature whatsoever, arising out of, by reason of, as
a result of or in connection with any of the matters reflected in this
indemnity provision; and (v) any and all liabilities, damages, losses, costs,
expenses (including attorney's fees and costs advanced by counsel), amounts
of judgment, assessments, fines or penalties, and amounts paid in compromise
or settlement, suffered, incurred or sustained by the Seller on account of,
by reason of, as a result of or in connection with any of the matters covered
by this indemnity provision.
23. Risk of Loss and Insurance. Between the date of this Agreement
and Closing, the risks and obligations of ownership and losses incurred by
the Property (to the extent the same do not result from the actions or
omissions to act or negligence of the Buyer, its agents, employees or
contractors) and the correlative rights against insurance carriers and third
parties shall belong to Seller. The Buyer acknowledges and agrees that the
essence of this Contract provides for the Buyer's right to purchase vacant
land and not necessarily the improvements presently located thereon.
Therefore, in the event that the Land being purchased by the Buyer shall be
rendered unusable for the development purposes for which the Buyer intends in
executing this Agreement (residential or commercial development) by reason of
the acts or omissions to act or negligence of the Seller, its agents,
employees or contractors, the Buyer shall have the right, at Buyer's option,
to terminate this Agreement by giving written notice thereof to Seller prior
to Closing, in which event the Xxxxxxx Money shall be refunded to Buyer
immediately upon request. Thereafter all rights and obligations of Seller
and Buyer under this Agreement shall expire, and this Agreement shall become
null and void.
24. Condemnation. In the event of the taking of all or any part of
the Property by eminent domain proceedings, or the commencement or bona fide
threat of the commencement of any such proceedings, prior to Closing, Buyer
shall have the right, at Buyer's option, to terminate this Agreement by
giving written notice thereof to Seller prior to Closing, in which event the
Xxxxxxx Money, shall be refunded to Buyer immediately upon request, all
rights and obligations of Seller and Buyer under this Agreement shall expire,
and this Agreement shall become null and void. If Buyer does not so
terminate this Agreement, the Purchase Price shall be reduced by the per
square foot price of the Purchase Price multiplied by the number of square
feet taken by the condemning of authority.
25. No Broker. All negotiations relative to this Agreement and the
purchase and sale of the Property as contemplated by and provided for in this
Agreement have been conducted by and between Seller and Buyer without the
intervention of any person or other party as agent or broker. Seller and
Buyer warrant and represent to each other that there are and will be no
broker's commissions or fees payable in connection with this Agreement or the
purchase and sale of the Property by reason of their respective dealings,
negotiations or communications. Seller and Buyer shall and do each hereby
indemnify, defend and hold harmless each other from and against the claims,
demands, actions and judgments of any and all brokers, agents, and other
intermediaries alleging a commission, fee or other payment to be owing by
reason of their respective dealings, negotiations or communications in
connection with this Agreement or the purchase and sale of the Property.
26. Survival.
(a) Seller's Assurances. At Closing, and from time to time
prior to Closing, Seller shall do all such additional and further acts, and
shall execute and deliver all such additional and further deeds, affidavits,
instruments, certificates and documents, as Buyer, Buyer's counsel may
reasonably require to fully vest in and assure to Buyer full right, title and
interest in and to the Property to the full extent contemplated by this
Agreement on the date of closing and otherwise to effectuate the purchase and
sale of the Property as contemplated by and provided for in this Agreement.
All the provisions of this Agreement (including, without limitation, the
representations, covenants and warranties of Seller as set forth in this
Agreement), shall survive the consummation of the purchase and sale of the
Property on the Closing Date, the delivery of the Deed to Buyer and the
payment of the Purchase Price. Notwithstanding any provision of this
Agreement to the contrary, the indemnification provisions relating to the
Seller shall survive any termination of this Agreement.
(b) Buyer's Assurances. At Closing, and from time to time
prior to Closing, the Buyer shall do all such additional and further acts,
and shall execute and deliver all such additional and further affidavits,
instruments, certificates and documents, as Seller, Seller's counsel or title
insurer may reasonably require (including, but not limited to, the payment of
all water development charges) to the full extent contemplated by this
Agreement and otherwise to effectuate the purchase and sale of the Property
as contemplated by and provided for in this Agreement. All the provisions of
this Agreement (including, without limitation, the representations, covenants
and warranties of Buyer as set forth in this Agreement), shall survive the
consummation of the purchase and sale of the Property on the Closing Date,
the delivery of the Deed to Buyer and the payment of the Purchase Price.
Notwithstanding any provision of this Agreement to the contrary, the
indemnification provisions relating to the Buyer shall survive any
termination of this Agreement.
27. General Provisions.
(a) Notices. Whenever any notice, demand or request is
required or permitted under this Agreement, such notice, demand or request
shall be in writing and shall be delivered by hand, be sent by registered or
certified mail, postage prepaid, return receipt requested, or be sent by
nationally recognized commercial courier for next business day delivery, to
the address for each party set forth below their respective executions
hereof, or to such other addresses as are specified by written notice given
in accordance herewith, or shall be transmitted by facsimile to the number
for each party set forth below their respective executions hereof, or to such
other numbers as are specified by written notice given in accordance
herewith. All notices, demands or requests delivered by hand shall be deemed
given upon the date so delivered; those given by mailing as hereinabove
provided shall be deemed given on the date of deposit in the United States
Mail; those given by commercial courier as hereinabove provided shall be
deemed given on the date of deposit with the commercial courier; and those
given by facsimile shall be deemed given on the date of facsimile
transmittal. Nonetheless, the time period, if any, in which a response to
any notice, demand or request must be given shall commence to run from the
date of receipt of the notice, demand or request by the addressee thereof.
Any notice, demand or request not received because of changed address or
facsimile number of which no notice was given as hereinabove provided or
because of refusal to accept delivery shall be deemed received by the party
to whom addressed on the date of hand delivery, on the date of facsimile
transmittal, on the first calendar day after deposit with commercial courier,
or on the third calendar day following deposit in the United States Mail, as
the case may be.
(b) Facsimile as Writing. The parties expressly acknowledge
and agree that, notwithstanding any statutory or decisional law to the
contrary, the printed product of a facsimile transmittal shall be deemed to
be "written" and a "writing" for all purposes of this Agreement.
(c) Assignment; Parties. This Agreement may not be assigned
by Buyer, in whole or in part, without the prior written approval of the
Seller. This Agreement shall be binding upon and enforceable against, and
shall inure to the benefit of, Buyer and Seller and their respective heirs,
legal representatives, successors and assigns.
(d) Headings. The use of headings, captions and numbers in
this Agreement is solely for the convenience of identifying and indexing the
various provisions in this Agreement, and shall in no event be considered
otherwise in construing or interpreting any provision in this Agreement.
(e) Exhibits. Each and every exhibit referred to or otherwise
mentioned in this Agreement is attached to this Agreement and is and shall be
construed to be made a part of this Agreement by such reference or other
mention at each point at which such reference or other mention occurs, in the
same manner and with the same effect as if each exhibit were set forth in
full and at length every time it is referred to or otherwise mentioned.
(f) Defined Terms. Capitalized terms used in this Agreement
shall have the meanings ascribed to them at the point where first defined,
irrespective of where their use occurs, with the same effect as if the
definitions of such terms were set forth in full and at length every time
such terms are used.
(g) Pronouns. Wherever appropriate in this Agreement, personal
pronouns shall be deemed to include the other genders and the singular to
include the plural.
(h) Non-Waiver. Failure by any party to complain of any
action, non-action or breach of any other party shall not constitute a waiver
of any aggrieved party's rights hereunder. Waiver by any party of any right
arising from any breach of any other party shall not constitute a waiver of
any other right arising from a subsequent breach of the same obligation or
for any other default, past, present or future.
(i) Time of Essence; Dates. Time is of the essence of this
Agreement. Anywhere a day certain is stated for payment or for performance
of any obligation, the day certain so stated enters into and becomes a part
of the consideration for this Agreement. If any date set forth in this
Agreement shall fall on, or any time period set forth in this Agreement shall
expire on, a day which is a Saturday, Sunday, federal or state holiday, or
other non-business day, such date shall automatically be extended to, and the
expiration of such time period shall automatically to be extended to, the
next day which is not a Saturday, Sunday, federal or state holiday or other
non-business day. The final day of any time period under this Agreement or
any deadline under this Agreement shall be the specified day or date, and
shall include the period of time through and including such specified day or
date.
(j) Applicable Law. This Agreement shall be governed by,
construed under and interpreted and enforced in accordance with the laws of
the State of Colorado.
(k) Entire Agreement; Modification. This Agreement supersedes
all prior discussions and agreements among Seller and Buyer with respect to
the purchase and sale of the Property and other matters contained herein, and
this Agreement contains the sole and entire understanding among Seller and
Buyer with respect thereto. This Agreement shall not be modified or amended
except by an instrument in writing executed by or on behalf of Seller and
Buyer.
(l) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
(m) Attorney's Fees. In the event of any litigation between
Buyer and Seller arising under or in connection with this Agreement, the
prevailing party shall be entitled to recover from the other party the
expenses of litigation (including reasonable attorneys' fees, expenses and
disbursements) incurred by the prevailing party.
(n) Authority. Each party hereto warrants and represents that
such party has full and complete authority to enter into this Agreement, and
each person executing this Agreement on behalf of a party warrants and
represents that he has been fully authorized to execute this Agreement on
behalf of such party, and that such party is bound by the signature of such
representative.
(o) Counsel. Each party hereto warrants and represents that
each party has been afforded the opportunity to be represented by counsel of
its choice in connection with the execution of this Agreement, and has had
ample opportunity to read, review, and understand the provisions of this
Agreement.
(p) No Construction Against Preparer. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of
any party by any court or other governmental or judicial authority by reason
of such party's having or being deemed to have prepared or imposed such
provision.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute, seal and deliver this Agreement, all as of the
day and year first written above.
SELLER:
BRONCUCIA INVESTMENT, a Colorado General
Partnership
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxxx, General Partner
By:
--------------------------------------
Xxxxxxx Xxxxxxxxx, General Partner
Initial address for notices:
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
With a copy to:
R. Xxxxxx Xxxxxx, Attorney At Law
R. Xxxxxx Xxxxxx, P.C.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Date of Seller's Execution:
March 27, 2001
------------------------------------
BUYER:
HASTINGS HOLDING CORPORATION,
a Colorado corporation
By:________________________________
Name:__________________________
Title:___________________________
(CORPORATE SEAL)
Initial address for notices:
Hastings Holding Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Date of Execution: ____________________
ESCROW AGENT ACKNOWLEDGMENT
Escrow Agent acknowledges receipt of the Xxxxxxx Money, and agrees to
hold and disburse the Xxxxxxx Money in accordance with the terms and
conditions of this Agreement.
ESCROW AGENT:
CHICAGO TITLE COMPANY OF COLORADO
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Initial address for notices:
Chicago Title Company of Colorado
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Mej Xxxxxxxxx
Telephone No.: 000-000-0000000
Facsimile No.: 000-000-0000
AMENDMENT TO OPTION AGREEMENT TO PURCHASE REAL ESTATE
THIS AMENDMENT TO OPTION AGREEMENT TO PURCHASE REAL ESTATE is made and
entered into this ___ day of July, 2001, by and between BRONCUCIA INVESTMENT, a
Colorado General Partnership ("Broncucia") as the Seller and HASTINGS HOLDING
CORPORATION, a Colorado corporation ("Hastings") as the Buyer.
The Seller and Buyer are parties to that certain OPTION AGREEMENT TO
PURCHASE REAL ESTATE with an effective date of April 4, 2001 ("The Contract").
Now therefore, in consideration of One Dollar ($1.00) together with the
terms and provisions and covenants contained in The Contract referenced above,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Seller and Buyer agree as follows:
(1) Paragraph 3.a entitled First Option Payment of The Contract is hereby
amended to read as follows:
(a) First Option Payment. The First Option Payment in the amount of TWO
HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) shall be paid by the Grantee to
the Grantor on or before 5:00 p.m. on August 20, 2001. It is agreed that said
Option Payment once paid by the Grantee to the Grantor shall be non-refundable to
the Grantee.
(2) Paragraph 3.b entitled Additional Option Payments of The Contract is hereby
amended to read as follows:
(b) Additional Option Payments. The Grantor and the Grantee agree that
at present an encumbrance on the title to the subject real estate property
exists. Said encumbrance is described in the Title Commitment, Order No. 122153A
issued by Chicago Title Company of Colorado, Inc. as follows:
"An oil and gas lease executed by Xxxxxxxx
Petroleum Company as Lessor(s) and by Amoco Production
Company as Lessee(s) for a primary term of 5 years dated
October 25, 1971, recorded December 22, 1971 in Book 1767
at Page 188 and any and all parties claiming by and
through or under the Lessee(s) and any and all
assignments thereof or interest therein."
Note: Ratification of Leases recorded December 10,
1990 in Book 3735 at Page 147.
Note: Assignment and Xxxx of Sale recorded
February 9, 1998 in Book 5229 at Page 683."
The Grantor and the Grantee have agreed to cooperate and through their
designated agents direct their activities to resolve this encumbrance in the best
manner possible and remove the same as a restriction on surface development of
the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 66 West, of the 6th PM,
Xxxxx County, Colorado (a portion of the subject real estate property which is
the subject matter of the OPTION AGREEMENT TO PURCHASE REAL ESTATE.) In the
resolution of said restriction, the parties, by and through their designated and
authorized representatives have therefore agreed to open negotiations with RME
Petroleum Company, RME Land Development Company, H.S. Resources, Inc., X.X.
Xxxxxxxx Company, Inc., Union Pacific Railroad Company, Inc., and all other
applicable entities to secure a mutually acceptable resolution to this
encumbrance. It is mutually agreed by and between the Grantor and the Grantee
that such resolution may take as much as one (1) year to achieve. It is likewise
mutually agreed between the Grantor and the Grantee that such resolution may
require the expenditure of up to ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00) in the form of payment or payments to applicable parties in order
to acquire relevant Relinquishment Agreements, Quit Claim Deeds, applicable
Surface Use Agreements, or long term Non-Development Leases as the Grantor and
the Grantee and all other applicable parties may agree.
It is further agreed that the said ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00) amount shall not be construed to include either of the Grantor's or
the Grantee's attorneys fees or costs, for which each of the parties shall be
individually responsible. It is further agreed that the Grantee shall advance
said funds in an amount not to exceed ONE HUNDRED THOUSAND DOLLARS ($100,000.00)
to accomplish the mutually acceptable and agreed upon resolution. All amounts so
advanced by the Grantee to secure the acceptable agreements shall be credited to
the Grantee as the Buyer at the time of the closing of the OPTION AGREEMENT TO
PURCHASE REAL ESTATE.
In consideration of the Grantee's activities to resolve this matter and the
Grantee's willingness to advance the necessary funds to achieve the desired
result, the Grantor will extend the time period for which the payment of the
Second Option Payment in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS
($200,000.00) must be made by the Grantee to the Grantor. The Second Option
Payment shall be due and payable in full on or before August 20, 2002, or the
date when a mutually acceptable resolution of the above described surface
restriction and encumbrance is achieved, whichever date or event first occurs;
however, in no event shall the Second Option Payment be due and payable prior to
January 15, 2002.
The Third Option Payment in the amount of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) shall be due and payable on or before January 15, 2003.
The Fourth Option Payment in the amount of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) shall be due and payable on or before January 15, 2004.
Provided that the Grantee well and truly performs the obligations of the Buyer in
accordance with the terms and provisions of the OPTION AGREEMENT TO PURCHASE REAL
ESTATE as amended and provided that the Grantee closes the real estate
transaction contemplated in this Agreement on or before December 31, 2004, or
such other date to which the closing has been extended by mutual agreement by the
parties, all Option Payments made hereunder by the Grantee shall be credited
against the purchase price referenced in Paragraph 3.c of the OPTION AGREEMENT TO
PURCHASE REAL ESTATE. In any event, subsequent to August 20, 2001, all Option
Payments made hereunder shall be non-refundable to the Grantee/Buyer.
(3) The parties agree to amend Paragraph 13.c entitled Proceedings at Closing
of The Contract to read as follows:
(c) The Buyer shall pay the remainder of the Purchase Price after
crediting the Xxxxxxx Money Deposit, Option Payments and all amounts advanced by
the Buyer, (not to exceed ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00)
to the Seller in the resolution of the surface use restriction as identified in
Paragraph 3.b of this Amendment to the OPTION AGREEMENT TO PURCHASE REAL ESTATE
in accordance with the provisions of this Agreement. If required by the
withholding requirements described in subparagraph (a) (v) of the OPTION
AGREEMENT TO PURCHASE REAL ESTATE, the Escrow Agent and the Title Company shall
be entitled to withhold the applicable portion of the Purchase Price, and to
submit such portion of the Purchase Price to the Colorado Department of Revenue.
(4) The parties agree to amend Paragraph 16.m of The Contract to read as
follows:
(m) Seller will pay or cause to be paid promptly when due all city,
state, and county ad valorem taxes and similar taxes.
The Buyer shall pay all sewer and water development charges and all other
governmental charges levied or imposed upon the subject Property or assessed
against the Property by reasons of the inclusion of the Property into the
Northern Infrastructure General Improvement District of Commerce City and/or the
South Xxxxx County Water and Sanitation District. However, and to the extent
this Agreement is terminated, the Buyer shall assign any and all rights, title
and interest in and to said Agreements with the South Xxxxx County Water and
Sanitation District and the Northern Infrastructure General Improvement District
of Commerce City to the Seller and the Seller shall reimburse the Buyer for all
charges paid by the Buyer during the term of this Option Agreement and relating
to charges actually paid by the Buyer by reason of the subject Property's
inclusion into the Special Improvement Districts referenced herein.
In addition, the Buyers shall advance and pay when due all amounts
necessary up to the maximum amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00) to obtain relevant Releases, Quit Claim Deeds, Applicable Surface
Use Agreements or Long Term Non-Development Leases as the Buyer and Seller have
mutually cooperated in acquiring to resolve the encumbrance to the Title
identified in Paragraph 3.b of this AMENDMENT TO OPTION AGREEMENT TO PURCHASE
REAL ESTATE. However, to the extent that the OPTION AGREEMENT TO PURCHASE REAL
ESTATE as Amended is terminated, the Buyer shall assign, transfer and convey to
the Seller any and all rights, title and interest in and to said Agreements
negotiated with the applicable parties (RME Petroleum Company, RME Land Company,
H.S. Resources, Inc., X.X. Xxxxxxxx Company, Inc., Union Pacific Railroad
Company, et al.) including but not limited to all documentation and other
materials relating thereto. In consideration of said transfer and assignment,
the Seller shall reimburse the Buyer for all sums so advanced, not to exceed ONE
HUNDRED THOUSAND AND NO/00 DOLLARS ($100,000.00) and exclusive of all attorneys
fees and costs for which both Buyer and Seller shall individually be responsible.
With the exception of the above referenced amounts and charges, as the
terminology is defined in this Paragraph, the Seller will pay or cause to be paid
all expenses incurred in the use, occupancy and operation of the Property between
the effective date of the OPTION AGREEMENT TO PURCHASE REAL ESTATE as Amended and
the closing date.
(5) Paragraph 20.b of The Contract is hereby amended to read as follows:
Buyer may elect to seek specific performance, but not damages, or, in the
alternative, at the election of the Buyer, Buyer shall be entitled to a full
refund of all option payments and xxxxxxx money paid to Seller in accordance with
The Contract under the following limited circumstances.
i. Seller is provided with a written notice and supporting evidence that
any representation or warranty provided by seller in accordance with the terms
and provisions of The Contract shall prove to be untrue or incomplete and Seller
fails to correct said representation or warranty within fifteen (15) days after
its reception of said notice and supporting evidence from Buyer; or,
ii. Seller shall fail to keep, observe, perform, satisfy, or comply with
any of the terms, covenants, conditions, agreements, requirements, or provisions
to be kept or performed by Seller after the receipt by Seller of a specific
detailed notice and demand specifying said default and Seller fails to commence
the required performance within a thirty (30) day period next following the
reception of said notice and demand by Seller.
In all other circumstances, which at this point in time, both Buyer and
Seller are unaware, the parties agree that a refund of the Xxxxxxx Money Deposit
by the Seller to the Buyer shall be the sole and exclusive remedy of the Buyer
should any other circumstance or conditions exist or occur in the future which
would prevent the Seller from fully complying with the terms and provisions of
the Seller under The Contract.
(6) Paragraph 27.c of The Contract is hereby amended to read as follows:
Excluding any transfer to an affiliate of the Buyer which is either wholly
owned or at least 50% of the equity ownership of the affiliate is vested in the
Buyer, the Buyer shall not have the right to sell, assign or transfer the Buyer's
rights and obligations under The Contract without the Seller's prior written
consent, which shall not be unreasonably withheld.
(7) Mutual Cooperation: Hastings Holding Corporation for itself and its
assigns, together with Broncucia Investment, a Colorado Limited Partnership,
agree to mutually cooperate with one another in taking all actions necessary and
expedient to aid one another to the extent possible, including their respective
performance and obligations identified in the OPTION AGREEMENT TO PURCHASE REAL
ESTATE as Amended. Such cooperation shall include the mutual execution of
documents after appropriate review of legal counsel for Broncucia Investment,
that may be necessary for planning and zoning, i.e. plats, P.U.D. applications
and amendments, etc.
(8) Recordation of Memorandum of Option Agreement to Purchase Real Estate as Amended:
The Grantor/Seller shall permit the Grantee/Buyer to record a Memorandum of
the OPTION AGREEMENT TO PURCHASE REAL ESTATE as Amended subsequent to the date of
August 20, 2001, provided that the following conditions are fully satisfied:
(a) The Grantee/Buyer shall pay to the Grantor/Seller the First Option
Payment in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) on
or before August 20, 2001.
(b) The Grantor/Seller shall have its legal counsel review the proposed
Memorandum and an agreement shall have been reached as to the contents of said
Memorandum prior to recordation.
(c) The Grantee/Buyer shall have deposited with Chicago Title Company of
Colorado, Inc., as the Escrow Agent, a RELEASE OF THE MEMORANDUM of the OPTION
AGREEMENT TO PURCHASE REAL ESTATE as Amended in recordable form as agreed upon
between counsel for the parties. The intent of the parties in this regard is to
release the real estate property which is the subject matter of this transaction
from any encumbrance or restriction imposed upon the subject real estate by the
recordation of said Memorandum. Further, it is the understanding of the parties
that should The Contract be terminated for any reason in compliance with the
provisions of the OPTION AGREEMENT TO PURCHASE REAL ESTATE as Amended, the Escrow
Agent, Chicago Title Company of Colorado, Inc., shall immediately record said
Release without further direction of any party. Escrow instructions to the
Escrow Agent shall be drafted and reflect these provisions accordingly.
(9) Execution: This Amendment may be validly executed, delivered, and accepted
in separate counterparts, which together shall constitute a single instrument.
(10) Ratification: The parties to this Amendment hereby ratify and approve
the original OPTION AGREEMENT TO PURCHASE REAL ESTATE as hereby amended in all
respects. The original OPTION AGREEMENT TO PURCHASE REAL ESTATE, except as
amended by this Amendment, has not been modified, amended or terminated and
remains in full force and effect.
It is agreed by the parties hereto that the provisions contained in this
Amendment to the OPTION AGREEMENT TO PURCHASE REAL ESTATE shall supercede and
take precedence over the previous provisions, or conflicting provisions,
contained in the original OPTION AGREEMENT TO PURCHASE REAL ESTATE to which this
Amendment shall be attached subsequent to the execution thereof by all requisite
parties.
(11) No Further Changes: All other terms of The Contract remain unchanged and
in full force and effect.
In Witness Whereof the parties hereto have executed this AMENDMENT TO
OPTION AGREEMENT TO PURCHASE REAL ESTATE effective this ____ day of July, 2001.
SELLER:
BRONCUCIA INVESTMENT, a Colorado General
Partnership
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxxx, General Partner
By:
--------------------------------------
Xxxxxxx Xxxxxxxxx, General Partner
Initial address for notices:
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
With a copy to:
R. Xxxxxx Xxxxxx, Attorney At Law
R. Xxxxxx Xxxxxx, P.C.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Date of Seller's Execution:
BUYER:
HASTINGS HOLDING CORPORATION,
a Colorado corporation
By:________________________________
Name:__________________________
Title:___________________________
(CORPORATE SEAL)
Initial address for notices:
Hastings Holding Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Date of Execution: ____________________
ESCROW AGENT ACKNOWLEDGMENT
Escrow Agent acknowledges receipt of an original of the AMENDMENT TO OPTION
AGREEMENT TO PURCHASE REAL ESTATE.
ESCROW AGENT:
CHICAGO TITLE COMPANY OF COLORADO, INC.
By:
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Initial address for notices:
Chicago Title Company of Colorado, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
