Exhibit 10.15
OPTION AGREEMENT
between
RS INVESTMENTS/STONEBRIDGE, LLC
a Colorado limited liability company,
as Seller,
and
THE GENESEE COMPANY,
a Colorado corporation,
as Purchaser
December ____, 1999
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") is made as of the
______ day of December, 1999 (the "Effective Date"), by and between RS
INVESTMENTS/STONEBRIDGE, LLC, a Colorado limited liability company ("Seller"),
and THE GENESEE COMPANY, a Colorado corporation ("Purchaser").
Recitals
A.Seller is the fee owner of that certain real property
located in the County of Jefferson, State of Colorado, and more particularly
described in Exhibit A attached hereto and made a part hereof, together with all
improvements thereto and all reversions, remainders, easements, rights-of-way,
appurtenances, leases, subleases, agreements, licenses, tenements and
hereditaments appertaining to or otherwise benefiting or used in connection with
such real property (the "Land").
B. The Land consists of 83 finally platted residential lots
(the "Lots").
C. As used in this Agreement, the term "Property" includes all
of the following:
(1) The Lots;
(2) All right, title and interest of Seller in and to all
unexpired warranties, guaranties and bonds, including, without limitation,
contractors' and manufacturers' warranties or guaranties, relating to the
Property, to the extent that they relate to the Property and are assignable (the
"Warranties");
(3) All right, title and interest of Seller in and to all
governmental permits, licenses, certificates and authorizations relating to the
construction, development, use or operation of the Property, to the extent that
they relate to the Property and are assignable (the "Permits");
(4) All right, title and interest of Seller in and to all
site plans, surveys, plats, plans, soil and substratus studies, architectural,
construction, road, drainage and utility drawings, plans and specifications,
engineering plans and studies, landscape plans, appraisals and environmental
studies, and other plans and studies of any kind if existing and in Seller's
possession or control that relate to the Property, to the extent that they
relate to the Property and are assignable (the "Plans"); and
(5) Any and all other rights, privileges, and appurtenances
owned by Seller and in any way related to or used in connection with the
Property, to the extent that they relate to the Property and are assignable,
including, without limitation, rights to use any and all trademarks and trade
names relating to the Property (the "Intangible Property").
D Seller desires to grant to Purchaser, and Purchaser
desires to acquire from Seller, a series of sequential options to purchase the
Property upon and subject to the terms and conditions set forth herein.
Agreement
NOW, THEREFORE, for the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Option to Purchase the Property
1.1 Grant of Option. Seller hereby grants to Purchaser an
exclusive option to purchase the Property on the terms and conditions set forth
herein. This Agreement grants an true option to Purchaser to purchase the Lots,
and Purchaser shall have no obligation to purchase any or all of the Lots. If
Purchaser fails to purchase sufficient Lots to satisfy the Minimum Aggregate
Takedown (as defined below), Seller's sole remedy shall be to terminate this
Agreement and retain the Option Payment. Upon such termination, the parties will
be relieved of any further obligation under this Agreement, except those which
expressly survive termination. In no event shall Purchaser have the right to
specific performance or additional damages because of Seller's failure to
purchase sufficient Lots to satisfy the Minimum Aggregate Takedown.
1.2 Option Payment. Upon the execution and delivery of this
Agreement by Seller and Purchaser, Purchaser shall deliver to Seller $790,000
(the "Option Payment"). The Option Payment (to the extent not previously applied
at a Closing) shall only be refundable to Purchaser (other than by application
towards the Purchase Price) if this Agreement is terminated pursuant to Section
10.2, if Seller defaults under this Agreement, or as otherwise expressly
provided in this Agreement.
1.3 Memorandum of Option. Contemporaneously with the
delivery by Purchaser of the Option Payment, Seller shall deliver to Purchaser a
fully executed and acknowledged Memorandum of Option of the form and content
attached hereto as Exhibit D, which may be recorded in the real property records
by Purchaser. Upon any termination of this Agreement, Purchaser agrees to
immediately execute, acknowledge and deliver to Seller a quit claim deed and
termination of the Memorandum of Option, each of form reasonably satisfactory to
Seller, quit claiming, releasing and terminating any interest of Purchaser in or
to any Lots not previously purchased by Purchaser hereunder. The provisions of
this Section 1.3 shall survive the termination of this Agreement.
1.4 Closings.
1.41 Takedown Notices. Subject to the terms of this
Agreement, Purchaser may from time to time close the purchase of Lots (sometimes
referred to herein as a "Takedown"), in groups of not less than the Lot Minimum
(as defined below), by delivering to Seller a written notice of such Takedown (a
"Takedown Notice"). A Takedown Notice shall
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identify the Lots to be purchased as part of such Takedown, the Closing Date (as
defined below), and the appropriate Purchase Price as determined based on the
Lot prices set forth on Exhibit B. The minimum number of Lots that may be
subject to a Takedown (the "Lot Minimum") shall be the lesser of the following,
determined as of the date of the Takedown Notice: (i) _____ Lots; and (ii) the
number of Lots remaining in a Phase, if Purchaser elects to Takedown all such
Lots.
1.4.2 Purchase Price. The purchase price for each
Takedown (the "Purchase Price") shall equal the sum of the prices set forth on
Exhibit B for each Lot subject to such Takedown. The applicable Purchase Price,
subject to the prorations and adjustments set forth in Article IX, shall be paid
at each Closing in cash, by certified or cashier's check, wire transfer, or
other immediately available funds. The Option Payment shall be applied to the
Purchase Price of the final Lots (excluding any Excluded Lots) subject to this
Agreement, such that if Purchaser acquires all of the Lots (excluding the
Excluded Lots) under this Agreement, the entire Option Payment will be applied
to the Purchase Price of the last Lots acquired by Purchaser hereunder. If
Purchaser purchases fewer than all of the Lots (excluding the Excluded Lots) for
any reason other than Seller's default, the aggregate Purchase Price for such
unpurchased Lots, up to the entire amount of the Option Payment shall be
retained by Seller and shall not be applied to the Purchase Price of the Lots
actually purchased hereunder.
1.4.3 Minimum Takedown Schedule. Purchaser shall be
required to Takedown, in the aggregate, a sufficient number of Lots on or before
each "Takedown Deadline" set forth on Exhibit C, so that the aggregate number of
Lots purchased in all previous Takedowns equals or exceeds the "Minimum
Aggregate Takedown" as set forth on Exhibit C for such Takedown Deadline.
Purchaser may satisfy its Minimum Aggregate Takedown requirements in one or more
separate Takedowns. In the event that Purchaser fails, prior to any Takedown
Deadline, to Takedown an aggregate number of Lots equal to or in excess of the
Minimum Aggregate Takedown for such Takedown Deadline, Purchaser shall be in
default, and Seller, as its sole remedy, may exercise its rights under Section
10.3 of this Agreement.
1.4.4 Phasing. The Lots are divided into phases (the
"Phases") as set forth on Exhibit C. Purchaser shall be required to Takedown
Lots by Phases, beginning with the lowest numbered Phase and proceeding to
subsequently numbered Phases, except that following Purchaser's Takedown of not
less than 75% of the Lots (excluding Excluded Lots (as defined below)) in a
particular Phase and 100% of the Lots (excluding Excluded Lots) in all lower
number Phases, Purchaser may Takedown Lots in the next higher numbered Phase.
Purchaser may Takedown Lots within a given Phases in such order as Purchaser may
determine.
1.4.5 Closing Dates. The date of closing (a "Closing
Date") for each Takedown shall be designated by Purchaser in its Takedown Notice
on a date that is not less than five (5) nor more than 30 days after Seller's
receipt of the Takedown Notice, or such earlier business day as Seller and
Purchaser mutually agree.
1.4.6 Accelerated Takedown. Purchaser shall have the
right to Takedown Lots in excess of the Minimum Aggregate Takedown earlier than
the Takedown Deadlines. To the extent Purchaser closes the purchase of Lots in
excess of the Minimum Aggregate Takedown prior to the respective Takedown
Deadline, the Purchase Price for each such excess Lot shall be reduced to an
amount which, if increased at the rate of ____% per
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annum, compounded annually, from the Closing Date to the Takedown Deadline for
which such Lot would be allocated to satisfy the Minimum Aggregate Takedown,
would equal the Purchase Price set forth on Exhibit B. In the event that, by
reason of an accelerated Takedown or otherwise, the adjusted Purchase Price for
the Takedown of the last Lots subject to this Agreement (excluding the Excluded
Lots) is less than the sum of the unapplied Option Payment, the difference shall
be refunded to Purchaser at the final Closing.
ARTICLE II
Status of the Property
2.1 Homeowners Association. Prior to the initial Closing,
Purchaser shall prepare and deliver for Seller's approval, which shall not be
unreasonably withheld, Purchaser's proposed declaration of covenants, conditions
and restrictions for the Lots (together with any supplements, amendments or
modifications thereto, the "Declaration"), and proposed articles of
incorporation, bylaws and rules for the related homeowners association (together
with the Declaration, the "Association Documents"). Seller shall execute,
acknowledge and record the Declaration (and obtain and record a fully executed
and acknowledged consent and subordination to the Declaration from any mortgagee
holding a mortgage or deed of trust encumbering the Lots) prior to the initial
Closing, subjecting those Lots agreed upon by Seller and Purchaser to the
Declaration, and including the balance of the Lots as annexable to the
Declaration. Thereafter, prior to each subsequent Closing, Seller shall execute,
acknowledge and record a supplement to the Declaration (and obtain and record a
fully executed and acknowledged consent and subordination to the supplement to
the Declaration from any mortgagee holding a mortgage or deed of trust
encumbering the Lots), subjecting those additional Lots agreed upon by Seller
and Purchaser to the Declaration, If Seller and Purchaser are unable to agree on
the form and content of the Association Documents, or the Lots to be subjected
thereto at the initial Closing or annexed thereto at any subsequent Closing: (i)
the Declaration shall be recorded at the initial Closing subjecting only the
Lots subject to the initial Closing to the Declaration; (ii) the Declaration
shall provide for and permit the subsequent annexation of the remainder of the
Lots; and (iii) supplements to the Declaration shall be recorded at each
subsequent Closing annexing the Lots subject to such subsequent Closing to the
Declaration. At or following each Closing, if requested by Purchaser, Seller
shall assign to Purchaser any and all declarant rights under the Declaration as
may be reasonably required by Purchaser in connection with its construction,
marketing and sale of the Lots and improvements thereon, including any special
declarant rights, development rights, and the right to appoint the members of
the board of directors of the Association and the architectural review or other
similar committee (collectively, the "Declarant Rights").
2.2 Transfer Upon Failure to Acquire All Lots. In the event
that this Agreement is terminated for any reason, except by reason of Seller's
default, prior to Purchaser having acquired all of the Lots: (i) Purchaser shall
deliver to Seller copies of all architectural, site and construction plans,
elevations, drawings, specifications and designs for the product designed by of
for Purchaser, or otherwise contemplated by Purchaser, for use on the Lots (the
"Home Plans"), and shall execute and deliver to Seller one or more instruments
assigning to Seller a non-exclusive license to use the Home Plans in connection
with the development of the remaining Lots; (ii) Purchaser shall deliver to
Seller copies of any and all other Warranties, Plans, Permits, Intangible
Property and studies or tests, including, but not limited to, soil tests,
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topographical information, engineering and other similar preliminary work, but
excluding economic, financial and marketability studies and pro formas, and
similar proprietary information of Purchaser, relating to the Lots, and shall
execute and deliver to Seller one or more instruments assigning such items to
Seller; (iii) Purchaser, at Seller's request, shall transfer to Seller all of
the Declarant Rights previously transferred to Purchaser; and (iv) Purchaser
shall remove all signs, equipment, materials and other personal property from
any Lots owned by Seller or the Association. The provisions of this Section 2.2
shall survive the termination of this Agreement.
2.3 Property Condition. Except as expressly set forth in this
Agreement, Purchaser acknowledges that the Lots will be conveyed in their
"as-is" condition, and Purchaser accepts and agrees to bear all risks regarding
all attributes and conditions, latent or otherwise, of the Lots purchased by
Purchaser. Purchaser has made or will make prior to each Closing its own
inspection and investigation of the Lots, including, without limitation, their
subsurface, soil, engineering and other conditions and requirements, whether
there are any eminent domain or other public or quasi-public takings of the Lots
contemplated, and all zoning and regulatory matters pertinent to the Lots.
Purchaser shall purchase the Lots upon Purchaser's own inspection and
investigation and not in reliance on any statement, representation, inducement
or agreement of Seller except as specifically provided herein. Purchaser agrees
that neither Seller nor anyone acting on behalf of Seller has made any
representation, guarantee or warranty whatsoever, either written or oral,
concerning the Lots except as specifically set forth herein. Except for
conditions caused by Seller or its employees, contractors, agents or
representatives (Purchaser and its employees, contractors, agents or
representatives being expressly excluded from any of the foregoing), Seller
shall have no responsibility, liability or obligation subsequent to each Closing
with respect to any conditions, including, without limitation, environmental
conditions, or as to any other matters whatsoever respecting in any way the Lots
purchased by Purchaser, and Purchaser hereby fully and forever releases Seller
and its employees, contractors, agents and representatives (except in their
respective capacities, if any, as employees, contractors, agents or
representatives or Purchaser) with respect to such conditions.
2.4 Access to the Property. Purchaser shall have the right to
access the Lots for ongoing investigation, which may include, without
limitation, the right to have made, at Purchaser's expense, any surveys, studies
or inspections of the Lots as Purchaser may deem necessary or appropriate.
Seller agrees to cooperate reasonably with any such investigations, inspections,
surveys or studies made by or at Purchaser's direction so long as such
cooperation is at no expense to Seller. Following any such activities by
Purchaser, Purchaser shall restore the Lots to their preexisting condition.
Purchaser shall indemnify, defend, and hold harmless Seller from any expenses,
damages and liabilities, including reasonable attorneys' fees, that Seller may
suffer or incur arising out of any claims for property damage or personal
injury, or claims from materialmen or laborers, which in turn arise from
Purchaser's investigations under this Section 2.4, and such indemnification
shall survive the termination of this Agreement. The foregoing notwithstanding,
Purchaser shall have no right to terminate this Agreement and receive a refund
of the Option Payment or any other amounts by reason of its investigation
activities under this Section 2.4.
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ARTICLE III
Title
3.1 Permitted Exceptions; Title Commitment. Seller shall
deliver to Purchaser within 20 days after the Effective Date a current title
insurance commitment issued by Land Title Guaranty Company, located at 0000 X.
0xx Xxx., Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (the "Title Company"), together with
legible copies of all recorded exceptions to title referred to therein
(collectively, the "Title Commitment"), showing marketable title to the Lots to
be vested in Seller and committing to insure such title to the Lots in Purchaser
by the issuance of an ALTA extended coverage policy of owner's title insurance
in the amount of the Purchase Price. The "Permitted Exceptions" hereunder shall
consist of: (i) any state of facts which would be revealed in an ALTA/ACSM Land
Title Survey or by an inspection of the Lots; (ii) taxes and assessments for the
year of closing; (iii) the exceptions to title disclosed in the original Title
Commitment: excluding (A) any taxes or assessments delinquent as of the
Effective Date, (B) any monetary liens or encumbrances, and (C) any exceptions
to title disclosed in the original Title Commitment, or any subsequent update
thereof, which are deleted or removed in any update of the Title Commitment
prior to the Closing; (iv) the Declaration and any other instruments approved by
Purchaser; (v) any easement, dedication, subdivision improvement agreement or
similar instrument reasonably required to develop the Lots in accordance with or
as contemplated by the final plat and other development plats, plans and
agreements relating to the Lots; and (vi) any matter created by, or at the
request or with the approval of, Purchaser or its employees, contractors, agents
and representatives.
3.2 Right to Cure. Any Lot subject to a title defect other
than the Permitted Exceptions shall be deemed an "Excluded Lot" and Seller shall
have 90 days (the "Cure Period") from receipt of written notice from Purchaser
describing such title defect within which to cure such title defect and provide
Purchaser with notice of such cure. Seller shall not be deemed to have cured a
title defect by obtaining title insurance therefor, unless Purchaser consents to
such form of cure in its sole and absolute discretion. If the title defect is
cured within the Cure Period, the Lot shall no longer be deemed an Excluded Lot.
If the title defect creating an Excluded Lot is not cured within the Cure
Period, Seller shall notify Purchaser of its inability to cure the defect, and
Purchaser, within five (5) business days following receipt of such notice from
Seller, shall elect either: (i) to waive the title defect and acknowledge that
the Lot is no longer an Excluded Lot; or (ii) to waive its right to acquire the
Excluded Lot under this Agreement. If Purchaser fails either to waive the title
defect or to waive its right to acquire the Excluded Lot within such five (5)
business day period, Purchaser shall be deemed to have elected to waive its
right to acquire the Excluded Lot. If Purchaser waives, or is deemed to have
waived, its right to acquire an Excluded Lot pursuant to the terms of this
Section 3.2, such Excluded Lot shall not be considered in determining whether
Purchaser has acquired all the Lots subject to this Agreement, and the Minimum
Aggregate Takedown for the last Takedown Deadline shall be reduced by one (1).
3.3 Condemnation. In the event that any Lot or portion of a
Lot shall be subject to a pending or threatened condemnation or similar
proceeding, or shall previously have been acquired, by authority of any
governmental agency in the exercise of its power of eminent domain or by private
purchase in lieu thereof (a "Condemnation"), Purchaser may elect, at its sole
option, either: (i) to designate such Lot as an Excluded Lot, in which event
Purchaser shall
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be deemed to have elected to waive its right to acquire such Excluded Lot; or
(ii) to waive its right to so designate the Lot and to consummate the
transaction contemplated hereby, in which case Seller shall assign to Purchaser
all of Seller's proceeds and right to receive proceeds, if any, payable as a
result of such Condemnation; provided, however, that in the event that the
Condemnation is de minimis and does not materially affect the use and
suitability of such Lot as a residential lot for the product contemplated by
Purchaser, Purchaser shall not be entitled to designate such Lot as an Excluded
Lot. If Purchaser waives, or is deemed to have waived, its right to acquire an
Excluded Lot pursuant to the terms of this Section 3.3, such Excluded Lot shall
not be considered in determining whether Purchaser has acquired all the Lots
subject to this Agreement, and the Minimum Aggregate Takedown for the last
Takedown Deadline shall be reduced by one (1).
3.4 Status of Title; Senior Loans. At Closing, Seller shall
convey to Purchaser title to the Lots, subject only to the Permitted Exceptions.
Seller shall not, after the date hereof, sell, convey, option, lease, contract
to do any of the foregoing or otherwise convey, abandon, relinquish, cloud, or
encumber title to the Lots or any part thereof or contract to do any of the
foregoing, except as may be expressly provided for herein. The foregoing
notwithstanding, Seller shall have the right to grant mortgages or deeds of
trust encumbering the Lots, and Purchaser agrees to execute and deliver
subordinations of this Agreement and the Memorandum of Option to such mortgages
and deeds of trust as may be reasonably requested by Seller. Purchaser's
obligation to so subordinate, or to enter into this Agreement subject, to any
senior mortgage or deed of trust (a "Senior Loan"), shall be subject to Seller
obtaining an agreement, of form and content reasonably satisfactory to
Purchaser, from such lender that the lender will notify Purchaser of any default
by Seller under the Senior Loan, and will permit Purchaser to cure such default.
Seller agrees that Purchaser may demand immediate cash payment from Seller, or
may elect to receive a credit against the Purchase Price (at such Closings as
Purchaser may elect), or a combination thereof, for any amounts expended by
Purchaser to cure a default under a Senior Loan, including by prepayment of the
Senior Loan in full. The foregoing notwithstanding, Purchaser shall be under no
obligation to cure any Senior Loan. Any default by Seller under any Senior Loan
or any loan junior to the Memorandum of Option, which is not cured within the
cure period, if any, contained therein or which is cured by Purchaser on
Seller's behalf, shall constitute a default by Seller under this Agreement.
3.5 Issuance of Title Policy. At Closing, Purchaser shall use
good faith efforts to cause the Title Company, at Purchaser's expense, to issue
to Purchaser, or unconditionally commit to issue to Purchaser after Closing, an
ALTA owner's policy of title insurance insuring marketable, insurable title to
the Lots in Purchaser in the amount of the Purchase Price, subject only to the
Permitted Exceptions (the "Title Policy"). At or before the Closing, Seller
shall satisfy all reasonable and customary requirements contained in the Title
Commitment or in any update thereof, including any requirements for Seller to
execute mechanics lien/final affidavits to the Title Company, except those which
by their nature can only be satisfied by Purchaser. All title insurance
premiums, closing and settlement fees, endorsement premiums and other similar
costs shall be paid by Purchaser.
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ARTICLE IV
Seller's Representations and Warranties
Seller represents and warrants to Purchaser as follows:
4.1 No Third-Party Interests. Seller has not granted to any
party any option, contract or other agreement with respect to a purchase or sale
of the Lots or any portion thereof or any interest therein, except as
contemplated by this Agreement.
4.2 No Possessory Rights. Except for any rights of possession
under the Permitted Exceptions and any rights contemplated by this Agreement,
Seller has not granted or permitted any possessory rights in any of the Lots.
4.3 Litigation. Seller has no knowledge, and Seller has not
received notice, of any actions, suits, proceedings or claims pending or
threatened with respect to or in any manner affecting Seller's interest in the
Lots (to the extent not previously conveyed to Purchaser or the Association) or
the ability of Seller to consummate the transaction contemplated by this
Agreement.
4.4 Authority. Seller is a limited liability company duly
organized and existing and in good standing under the laws of the State of
Colorado. Seller has the full right and authority to enter into this Agreement
and consummate the transaction contemplated by this Agreement. All requisite
corporate or other entity action has been taken by Seller in connection with the
entering into of this Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby. Each of the persons and
entities signing this Agreement on behalf of Seller is authorized to do so.
Seller shall furnish to Purchaser any and all documents to evidence such
authority as Purchaser shall reasonably request.
4.5 Consents; Binding Obligations. No third party approval or
consent is required to enter into this Agreement or to consummate the
transaction contemplated hereby. This Agreement and all documents required
hereby to be executed by Seller are and shall be valid, legally binding
obligations of and enforceable against Seller in accordance with their terms.
4.6 Omissions; Indemnity. All representations and warranties
made by Seller in this Agreement are free from any untrue statement of material
fact and do not omit to state any material facts necessary to make the
statements contained herein not misleading. Each of the representations and
warranties contained in this Article IV are acknowledged by Seller to be
material and to be relied upon by Purchaser in proceeding with this transaction,
shall be deemed to have been remade by Seller as of the date of each Closing and
shall survive each Closing. Seller shall indemnify and hold Purchaser harmless
and defend Purchaser from any loss, liability or expense, including reasonable
attorneys' fees, incurred by Purchaser, and any claim made against Purchaser by
reason of the breach of any of the foregoing representations or warranties.
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ARTICLE V
Purchaser's Representations and Warranties
Purchaser represents and warrants to Seller as follows:
5.1 Authority. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado.
Purchaser has the full right and authority to enter into this Agreement and
consummate the transaction contemplated by this Agreement. All requisite
corporate action has been taken by Purchaser in connection with the entering
into of this Agreement, the instruments referenced herein, and the consummation
of the transaction contemplated hereby. Each of the persons signing this
Agreement on behalf of Purchaser is authorized to do so. Purchaser shall furnish
to Seller any and all documents to evidence such authority as Seller shall
reasonably request.
5.2 Omissions; Indemnity. All representations and warranties
made by Purchaser in this Agreement are free from any untrue statement of
material fact and do not omit to state any material facts necessary to make the
statements contained herein or therein not misleading. Each of the
representations and warranties contained in this Article V are acknowledged by
Purchaser to be material and to be relied upon by Seller in proceeding with this
transaction, shall be deemed to have been remade by Purchaser as of the date of
each Closing and shall survive each Closing. Purchaser shall indemnify and hold
Seller harmless and defend Seller from any loss, liability or expense, including
reasonable attorneys' fees, incurred by Seller or any claim made against Seller
by reason of the breach of any of the foregoing representations or warranties.
ARTICLE VI
Seller's Undertakings Pending Closing
6.1 Advise Purchaser. Until the earlier of the final Closing
or the termination of this Agreement, Seller agrees to notify Purchaser promptly
upon learning or receiving notice, whichever first occurs, of:
6.1.1 Any fact or event which would make any of the
representations or warranties of Seller contained in this Agreement untrue or
misleading in any material respect or which would cause Seller to be in
violation of any of its covenants or other undertakings or obligations
hereunder.
6.1.2 Any pending or threatened (and unresolved)
litigation which affects the Lots (to the extent not previously conveyed to
Purchaser) or any part thereof.
6.1.3 Any material damage or destruction (excluding normal
wear and tear) to the Lots (to the extent not previously conveyed to Purchaser)
or any part thereof.
6.1.4 Any pending or threatened (and unresolved)
condemnation which would affect the Lots (to the extent not previously conveyed
to Purchaser) or any part thereof.
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6.1.5 Any threatened (and unresolved) or pending
proceedings in bankruptcy or insolvency which would affect Seller or the Lots
(to the extent not previously conveyed to Purchaser).
ARTICLE VII
Purchaser's Obligations and Expenses
7.1 Expenses. It is the parties' intention that Seller shall
not be required, during the term of this Agreement, to incur any expense or
other charge applicable to the Property except as expressly set forth herein, so
that all impositions, insurance premiums, utility expenses, construction costs,
Association obligations, repair and maintenance expenses and all other costs and
expenses (but excluding income taxes and franchise taxes) of any character or
kind, general or special, ordinary or extraordinary, foreseen or unforeseen, and
of every kind and nature whatsoever, shall be paid or discharged by Purchaser;
provided, however, Seller shall have no right to incur costs relating to the
Property (other than to protect Seller's interest in the Property) for which
Purchaser shall be responsible without Purchaser's written consent. Without
limiting the foregoing, Purchaser shall, as a material part of the consideration
to Seller in exchange for Seller's grant to Purchaser of the option to purchase
the Lots: (i) pay prior to delinquency all real estate taxes, special taxes,
assessments and other charges, including homeowner association dues and charges
pertaining to common areas, roadway, water, wastewater, impact or other fees
payable to any governmental or quasi-governmental authority, district or other
utility provider (collectively, "Authorities"), or otherwise payable by seller
and attributable to the Lots, and any other portion of the Property which accrue
or become due during the term of this Agreement (but regardless of whether such
taxes (including agricultural rollback taxes), assessments, fees or charges
relate to period prior to the term of this Agreement), and (ii) maintain at its
expense the Lots in good order, condition and repair, and (iii) pay prior to
delinquency all charges for water, electricity, telephone service, trash removal
and all other services or utilities used on or about the Property prior to the
termination of this Agreement, and (iv) perform at its expense all insurance and
other obligations to be performed by Purchaser contained in this Agreement. A
copy of each check to the applicable County Tax Assessor or Treasurer (or other
applicable taxing authority) for taxes attributable to portions of the Property
owned by Seller shall be sent to Seller promptly upon the submission of same to
the Tax Assessor or Treasurer. If Purchaser either fails to exercise its rights
to acquire all of the Lots pursuant to this Agreement, or is otherwise in
default under this Agreement, then upon the termination of this Agreement,
Purchaser shall immediately pay to Seller all unpaid taxes and assessments which
accrued or became payable during the term of this Agreement with respect to the
portion of the Property not acquired by Purchaser. The amounts payable by
Purchaser upon such termination shall be determined based upon the latest
available information (apportioned on a per diem basis using a 365-day year),
and when the actual bills are received, the parties shall make such payment, one
to the other, as is necessary so that Purchaser pays the actual amount of taxes
and assessments attributable to the term of this Agreement.
7.2 Other Taxes. Purchaser acknowledges that it is acquiring
each Lot for resale. Purchaser hereby assumes the liability for and agrees to
pay: (a) all state, county, local and other assessments, transfer taxes, sales
taxes, transaction privilege taxes and other or similar taxes or charges owing
in connection with Purchaser's acquisition of the Lots and in connection with
Purchaser's development and subsequent resale of such Lots; (b) all charges in
connection
10
with fire protection, streets, sidewalks, road maintenance, refuse or other
services provided to the Property by any Authorities; and (c) any tax or excise
on receipts, gross receipts tax, or other tax (but excluding income taxes and
franchise taxes), however described, which is levied or assessed by the United
States of America or any state, county or local government or agency thereof
against Seller in respect to all charges or payments made by Purchaser under
this Agreement or as a result of Seller's receipt of such charges or payments,
and Purchaser shall indemnify, defend and hold harmless Seller and its managers,
members, employees, agents, affiliates, successors and assigns for, from and
against Purchaser's failure to pay all such amounts when due and against all
liability and expense, including without limitation, penalties, interest and
reasonable attorneys' fees and costs, from any such failure.
7.3 Repair. If, during the term of this Agreement, any of the
Lots, or the improvements thereto or any streets, rights-of-way of other
improvements within the subdivision (the "Subdivision Improvements") are damaged
or destroyed, Purchaser shall immediately repair and restore the Lots and the
Subdivision Improvements to their respective condition immediately prior to such
damage and destruction. Upon the termination of this Agreement, Purchaser shall
deliver the Subdivision Improvements and the Lots not purchased by Purchaser to
Seller in good condition and repair.
7.4 Insurance. During the term of this Agreement, Purchaser
shall, at its sole expense, procure and maintain commercial general liability
insurance against claims for bodily injury, death or property damage, occurring
in, on or about the Property, or resulting from the use or maintenance thereof,
in an amount of at least $2,000,000 for each occurrence and $5,000,000 in the
general aggregate. The liability policy shall (i) name Seller and any other
parties designated by Seller as additional named insureds. The policy shall be
issued by an insurance company authorized to do business in the state in which
the Lots are located and approved by Seller, which approval will not be
unreasonably withheld. The policy shall provide that no cancellation, alteration
or non-renewal of said insurance shall be effective unless the insurance company
issuing such policy gives Seller at least 30 days prior written notice thereof.
The policy shall provide that it will be primary to any insurance policy
otherwise purchased by Seller. During the term of this Agreement, Purchaser
shall also, at its sole expense, procure and maintain employer's liability
insurance for workmen's compensation in an amount not less than the statutory
limits of coverage. Purchaser shall deliver to Seller evidence of such insurance
in a form reasonably satisfactory to Seller, on the date of this Agreement and
upon any modification, renewal or replacement of coverage.
7.5 Indemnity. To the fullest extent permitted by law,
Purchaser does and shall indemnify, defend and hold harmless, and hereby
releases and discharges, Seller and its managers, members, employees, agents,
affiliates, successors and assigns, except to the extent caused by the
negligence or willful misconduct of any such indemnified parties, for, from and
against all claims, demands, liabilities, losses, damages, costs and expenses,
including but not limited to court costs and reasonable attorneys' fees and
costs, arising out of or in connection with: (i) Purchaser's use or occupancy of
the Property, or any portion thereof: (ii) any work, occurrence, conduct, act or
omission maintained, performed, permitted or suffered by Purchaser or any
representative, subcontractor or supplier of Purchaser, or any employee, agent,
invitee or licensee of any of the foregoing, on or about or pertaining to the
Property or any portion thereof; (iii) any claim pertaining or relating to the
Property, specifically including, without limitation,
11
any claims arising as a result of the condition of the surface and sub-surface
of the Property or any portion thereof existing, created or arising prior to or
during the term of this Agreement, and/or the failure of the Property or any
portion thereof to be properly graded and compacted as necessary to minimize all
risks of subsidence and any other settlement or movement of the soils; (iv) any
condition of or on the Property, or any portion thereof, or of or on any street,
curb or sidewalk thereon or adjacent thereto or any improvement constructed or
to be constructed thereon existing, created or arising prior to or during the
term of this Agreement; (v) Purchaser's failure to perform Purchaser's
obligations, or Purchaser's breach of Purchaser's obligations, representations
or warranties, under this Agreement, (vi) any act, omission, negligence or
misconduct of Purchaser or its representatives, subcontractors, suppliers,
employees, agents, invitees or licensees, (vii) any accident, injury or damage
whatsoever caused to any person, firm or corporation in or about the Property or
any sidewalk, street or land adjacent thereto arising as a result of any act or
omission during the term of this Agreement; (viii) the physical condition of the
Property or any portion thereof existing, created or arising prior to or during
the term of this Agreement, and the impact of any federal, state or local law,
common law, statute, ordinance, regulation, administrative rule, policy or
order, now in effect or at anytime hereafter enacted which pertains or is
applicable to or governs: hazardous materials or substances, or the use,
permitting and/or environmental condition of the Property (including the
subsurface thereof) and any property adjacent thereto, or which pertains to
health, industrial hygiene or the regulation or protection of the environment;
and (ix) any claim made against Seller relating to impact fees and/or real
property taxes arising for any time periods during and before the term of this
Agreement. The covenants contained in this Section 7.5 shall survive any Closing
or the termination of this Agreement and shall be continuing obligations of
Purchaser for so long as same may be enforced within any applicable statute of
limitations time periods.
ARTICLE VIII
Closings
8.1 Time of Closing. Closings shall take place at 1:00 p.m. on
the respective Closing Dates, in the offices of the Title Company, or at such
other time and place as may be mutually agreed upon by Seller and Purchaser.
8.2 Deliveries. At each Closing the following shall occur:
8.2.1 Deed. Seller shall deliver to Purchaser a duly
executed and acknowledged special warranty deed, of form reasonably acceptable
to Purchaser, conveying fee simple title to the Lots to Purchaser, subject only
to the Permitted Exceptions.
8.2.2 Payment. Purchaser shall pay to Seller the Purchase
Price as provided in Section 1.4.2, subject to the adjustments described in
Article IX.
8.2.3 Possession. Possession of the applicable Lots shall
be delivered to Purchaser.
8.2.4 Assignment of Intangibles; Delivery of Permits.
Seller shall execute and deliver to Purchaser an non-exclusive assignment, of
form reasonably acceptable to Purchaser, of all of Seller's right, title and
interest in and to the Plans, Warranties, Permits and
12
Intangible Property, to the extent the same are assignable. At the Closing of
the purchase of the last Lots (excluding Excluded Lots) subject to this
Agreement, Seller shall deliver to Purchaser the originals (or accurate copies)
of all Plans, Warranties and Permits in Seller's possession and all other
materials of whatever kind owned by Seller relating to the development,
improvement and ownership of the Property.
8.2.5 Non-Foreign Certificate. Seller shall execute and
deliver to Purchaser and the Title Company an affidavit that Seller is exempt
from the withholding requirements of Section 1445 of the Internal Revenue Code.
8.2.6 Mechanics' Liens. Seller shall execute and deliver
to the Title Company such agreements or statements concerning claims for
mechanic's liens as may be customarily required by the Title Company from Seller
in order to issue the Title Policy, except that Seller shall not be required to
post any bond or security in connection therewith.
8.2.7 Miscellaneous Documents. Seller shall, whenever and
as often as it shall be reasonably requested so to do by Purchaser, and
Purchaser shall, whenever and as often as it shall be reasonably requested so to
do by Seller, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, any and all conveyances, assignments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction herein provided and to carry out the intent and purposes of this
Agreement.
ARTICLE IX
Prorations and Closing Expenses
9.1 Taxes. At Closing, real and personal property taxes on the
Lots shall not be prorated. In lieu thereof, Purchaser shall receive a credit in
the amount of the credit, if any, received by Seller as a tax proration when it
originally acquired the Property, allocated in a reasonable manner among the
Lots subject to this Agreement.
9.2 Liens and Encumbrances. The amount of any lien, deed of
trust or other monetary encumbrance then affecting the Lots, including all
prepayment penalties, shall be paid from the funds to which Seller shall
otherwise be entitled. If such funds are insufficient to pay all such
encumbrances, Seller shall pay the deficiency.
9.3 Closing Costs. Purchaser shall pay the fee for recording
Seller's deed, the premium for the Title Policy, the Title Company's escrow and
closing fee, its attorneys' fees and costs, and all conveyance, transfer, sales
and other taxes of fees, if any. Seller shall pay the cost of recording any
instruments required to discharge any liens or encumbrances against the Lots
which are not Permitted Exceptions and its attorneys' fees and costs.
9.4 Settlement Statement. At each Closing, Seller and
Purchaser shall execute a closing settlement statement to reflect the credits,
prorations, and adjustments contemplated by or specifically provided for in this
Agreement.
13
ARTICLE X
Remedies
10.1 Defaults. If either party fails to (a) pay any sum of
money when due as provided in this Agreement and such failure continues for a
period of at least five (5) business days after the delivery of written notice
thereof by the other party, or (b) perform any other covenant, agreement or
condition as provided in this Agreement and such failure continues for a period
of at least 15 days after the delivery of written notice thereof by the other
party, the non-performing party shall be deemed to be in default hereunder. The
foregoing notwithstanding, the availability of the foregoing cure periods shall
in no event apply to Purchaser's failure to close the purchase of Lots equal to
or exceeding the requisite Minimum Aggregate Takedown on or before the
applicable Takedown Deadlines (an "Acquisition Default"), which shall
immediately constitute a default by Purchaser and for which Purchaser shall be
entitled to neither notice of default nor any cure period, and for which Seller
shall be entitled to exercise its right to terminate this Agreement under
Section 10.3 immediately.
10.2 Default by Seller. In the event of a default hereunder by
Seller, Purchaser shall be entitled to: (i) terminate this Agreement and obtain
the prompt refund of the Option Payment (to the extent not previously applied at
a Closing), whereupon both parties shall be discharged from all duties and
performance hereunder; or (ii) treat this Agreement as being in full force and
effect and to seek specific performance and/or damages.
10.3 Acquisition Default by Purchaser. In the event of an
Acquisition Default hereunder by Purchaser, Seller, as its sole and exclusive
remedy, shall be entitled to terminate this Agreement, without notice or right
to cure, and retain the Option Payment (to the extent not previously applied at
a Closing) as liquidated damages. The parties hereby agree that the amount of
the Option Payment (to the extent not previously applied at a Closing) is a fair
and reasonable estimate of the total detriment that Seller would suffer in the
event of Purchaser's Acquisition Default hereunder.
10.4 Other Default by Purchaser. In the event of a default by
Purchaser other than an Acquisition Default, Seller shall be entitled to: (i)
terminate this Agreement and retain the Option Payment (to the extent not
previously applied at a Closing) as liquidated damages, whereupon both parties
shall be discharged from all duties and performance hereunder; or (ii) treat
this Agreement as being in full force and effect and to seek specific
performance of and/or damages with respect to any of Purchaser's
representations, warranties or covenants contained in Sections 1.3, 2.2, 2.4,
11.1 and 11.2, and Articles V and VII of this Agreement.
10.5 Post-Closing Breach. The provisions of this Article X
notwithstanding, either party shall be entitled, in addition to any other
remedies available under this Agreement or otherwise, to seek damages for any
post-Closing breach by the other party of its representations, warranties or
covenants hereunder, other than an Acquisition Default.
10.6 Attorneys' Fees. Notwithstanding any contrary provision
contained in this Agreement, in the event of any litigation or legal action
arising out of this Agreement, the court shall award the prevailing party its
reasonable costs and expenses incurred in connection with
14
such litigation or legal action, including, without limitation, its reasonable
attorneys' fees and costs.
ARTICLE XI
General Provisions
11.1 Brokers. Seller and Purchaser each hereby represent and
warrant to the other that their only contact with the other or with the Property
has been made without the assistance of any broker or other third party. Seller
and Purchaser agree to save and hold each other free, clear and harmless from
any claim, cost or expense, including reasonable attorneys' fees, for or in
connection with any claims for commissions or compensation claimed or asserted
by or through each respective party in connection with the transaction
contemplated herein.
11.2 Further Assurances. Each of the parties hereto undertakes
and agrees to execute and deliver such documents, writings and further
assurances as may be requisite to carry out the intent and purpose of this
Agreement.
11.3 Entire Agreement. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto. No waiver of any of the provisions of this Agreement shall be valid
unless in writing and signed by the party against whom it is sought to be
enforced. This Agreement contains the entire agreement between the parties
relating to the purchase and sale of the Property. All prior negotiations
between the parties are merged in this Agreement; and there are no promises,
agreements, conditions, undertakings, warranties or representations, oral or
written, express or implied, between the parties other than as herein set forth.
11.4 Survival. All of the parties' representations,
warranties, covenants and agreements hereunder, to the extent not fully
performed or discharged by or through a Closing, shall be deemed not merged into
any instrument delivered at such Closing and shall remain fully enforceable
thereafter.
11.5 Dates. If any date set forth in this Agreement for the
delivery of any document or the happening of any event (such as, for example, a
Closing Date) should, under the terms hereof, fall on a weekend or holiday, then
such date shall be automatically extended to the next succeeding weekday that is
not a holiday.
11.6 Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Colorado.
11.7 Notices. Any notice required or permitted to be sent
pursuant to this Agreement shall be in writing and shall be deemed given, sent,
delivered and received upon the earlier of: (i) when personally or actually
delivered; or (ii) three (3) business days after having been deposited in a U.S.
Postal Service depository and sent by registered or certified mail, return
receipt requested, with all required postage prepaid; (iii) upon confirmed
telefacsimile transmission and the deposit of the original in a U.S. Postal
Service depository, with all required postage; or (iv) one (1) business day
after being deposited with a commercial overnight courier and sent by overnight
delivery with all required charges prepaid; and addressed:
15
If to Seller:
RS Investments/Stonebridge, LLC
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Short
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
If to Purchaser:
The Genesee Company
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Johnson, Robinson,
Xxxx & Xxxxxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
Any address fixed pursuant to the foregoing may be changed by
the addressee by notice given pursuant to this Section 11.7.
11.8 Headings. The paragraph headings which appear in some of
the Sections of this Agreement are for purposes of convenience and reference and
are not in any sense to be construed as modifying the Sections in which they
appear.
11.9 Assignment. Purchaser may assign this Agreement without
the consent of Seller. Any assignee shall assume all obligations imposed on
Purchaser as if the assignee were the original purchaser in this Agreement. Upon
any such assignment and assumption, Purchaser shall be released from all
liability hereunder.
11.10 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective heirs,
personal representatives, successors and assigns.
16
11.11 SPECIAL IMPROVEMENT DISTRICT DISCLAIMER/ DISCLOSURE.
SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT
IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY
WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK
FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF
SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A
DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES.
PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED
GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH
DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH
MILL LEVIES.
11.12 Facsimile Signatures. The facsimile signature of any
party on this Agreement shall be deemed an original for all purposes.
11.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed a duplicate original.
11.14 Acceptance. Upon execution and delivery of this
Agreement by Purchaser or Seller, this Agreement shall constitute an offer to
purchase the Property on the terms and conditions set forth herein. The
foregoing notwithstanding, either party may revoke its execution and delivery at
any time prior to the execution and delivery by the other party, by delivering
oral or written notice (which need not conform with the requirements of Section
11.7 hereof) of such revocation to the other party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed effective as of the Effective Date.
SELLER:
RS INVESTMENTS/STONEBRIDGE, LLC, a
Colorado limited liability company
By:
---------------------------------------
Xxxxxx X. Short, Manager
PURCHASER:
THE GENESEE COMPANY, a Colorado
corporation
By:
---------------------------------------
Xxxxx X. Xxxxx
Vice President
18
EXHIBIT A
to
PURCHASE AND SALE AGREEMENT
Legal Description
A Lots:
XXXX 0-0, 00 XXX 00, XXXXX 0,
XXXX 0-0, XXXXX 3, AND
XXXX 0-0 XXX 00-00, XXXXX 0,
XXXXX XXXXX FILING XX. 0,
XXXXXX XX XXXXXXXXX,
XXXXX XX XXXXXXXX
X Lots:
XXXX 0-0, 0-00, 00-00, 00-00 XXX 00-00, XXXXX 2,
XXXX 00-00 XXX 00-00, XXXXX 0,
XXXX 0-0, XXXXX 4,
EAGLE RIDGE - FILING NO. 1,
AND
XXXX 0 XXX 0, XXXXX 00,
XXXXX XXXXX FILING NO. 1 - REPLAT C,
COUNTY OF JEFFERSON,
STATE OF COLORADO
EXHIBIT B
to
PURCHASE AND SALE AGREEMENT
Lot Purchase Prices and Phases
Lot Type Purchase Price
A Lots $87,930
B Lots $64,435
EXHIBIT C
to
PURCHASE AND SALE AGREEMENT
Minimum Aggregate Takedown and Takedown Deadlines
Takedown Deadline Minimum Aggregate Takedown
End of Month A Lots B Lots Total
February 2000 1 3 4
March 2000 3 6 9
April 2000 4 9 13
May 2000 5 13 18
June 2000 6 16 22
July 2000 8 19 27
August 2000 9 23 32
September 2000 11 26 37
October 2000 12 29 41
November 2000 14 32 46
December 2000 16 35 51
January 2001 17 39 56
February 2001 19 42 61
March 2001 20 45 65
April 2001 22 48 70
May 2001 23 51 74
June 2001 25 54 79
July 2001 26 57 83
Total 26 57 83
EXHIBIT D
to
PURCHASE AND SALE AGREEMENT
Form of Memorandum of Option
