EXHIBIT 10.3
The preprinted portions of this form , except italicized or differentiated
--------------
additions, have been approved by the Colorado Real Estate Commission.
(CBS1-9-99)
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL
AND TAX OR OTHER COUNSEL BEFORE SIGNING.
CONTRACT TO BUY AND SELL REAL ESTATE
(RESIDENTIAL)
Date: August 24 , 2001
1. AGREEMENT. Buyer agrees to buy and the undersigned Seller agrees to
sell the Property defined below on the terms and conditions set forth in this
contract.
2. DEFINED TERMS.
a. Buyer. Buyer, Xxxxx X. Xxxxxx, will take title to the real property
described below as __ Joint Tenants __ Tenants In Common __ Other in Severalty .
b. Property. The Property is the following legally described real
estate:
Parcel One and Parcel Two
Eldorado Springs Exemption Plat No. 1
in the County of Boulder , Colorado, commonly known as
No. 00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
Street Address City State Zip
together with the interests, easements, rights, benefits, improvements and
attached fixtures appurtenant thereto, all interest of Seller in vacated streets
and alleys adjacent thereto, except as herein excluded.
c. Dates and Deadlines. [omitted]
d. Attachments.
N/A
e. Applicability of Terms. A check or similar xxxx in a box means that
such provision is applicable. The abbreviation "N/A" means not applicable.
3. INCLUSIONS AND EXCLUSIONS.
a. The Purchase Price includes the following items (Inclusions):
(1) Fixtures. If attached to the Property on the date of this
contract, lighting, heating, plumbing, ventilating, and air conditioning
fixtures, TV antennas, inside telephone wiring and connecting blocks/jacks,
plants, mirrors, floor coverings, intercom systems, built-in kitchen appliances,
sprinkler systems and controls, built-in vacuum systems (including accessories),
garage door openers including N/A remote controls; and NONE OTHER.
(2) Other Inclusions. If on the Property whether attached or not
on the date of this contract: storm windows, storm doors, window and porch
shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods,
fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage
sheds, and all keys. Check applicable box(es) if included:
__ Water Softeners, __ Smoke/Fire Detectors, __ Security Systems, __ Satellite
Systems (including satellite dishes and accessories); and NONE OTHER
(3) Parking and Storage Facilities. The use of the following
parking facilities: NONE ;
and the following storage facilities: NONE .
(4) Water Rights. The following legally described water rights: N/A
b. Instruments of Transfer. The Inclusions are to be conveyed at
Closing free and clear of all taxes, liens and encumbrances, except as provided
inss. 12. Conveyance shall be by xxxx of sale or other applicable legal
instrument(s). Any water rights shall be conveyed by N/A deed or other
applicable legal instrument(s).
c. Exclusions. The following attached fixtures are excluded from this
sale: NONE
4. PURCHASE PRICE AND TERMS. The Purchase Price set forth below shall
be payable in U. S. Dollars by Buyer as follows:
Item No. Reference Item Amount Amount
1 ss. 4 Purchase Price $400,000
2 ss. 4a Xxxxxxx Money N/A
3 ss. 4b New Loan $200,000
4 ss. 4c Assumption Balance N/A
5 ss. 4d Seller or Private Financing $200,000
6 ss. 4e Cash at Closing N/A
7 TOTAL $400,000 $400,000
x. Xxxxxxx Money. The Xxxxxxx Money set forth in this Section, in the
form of N/A , is part payment of the Purchase Price and shall be payable to and
held by N/A , in its trust account, on behalf of both Seller and Buyer. The
parties authorize delivery of the Xxxxxxx Money deposit to the Closing Company,
if any, at or before Closing.
b. New Loan. Buyer shall obtain a new loan set forth in this Section
and as follows: __ Conventional __ FHA __ VA __ Other AS DETERMINED BY BUYER
. This loan will be secured by a 1ST (1st, 2nd, etc.) deed of trust.
The loan may be increased to add the cost of mortgage insurance, VA funding
fee and other items for a total loan amount, not in excess of $200,000 , which
shall be amortized over a period of 30 years at approximately $ per
month including principal and interest not to exceed 7.5 % per annum, plus,
if required by Buyer's lender, a monthly deposit of 1/12 of the estimated annual
real estate taxes, property insurance premium, and mortgage insurance premium.
If the loan is an adjustable interest rate or graduated payment loan, the monthly
payments and interest rate initially shall not exceed the figures set forth above.
Loan discount points, if any, shall be paid to lender at Closing and shall
not exceed 1 % of the total loan amount. Notwithstanding the loan's
interest rate, the first ALL loan discount points shall be paid by BUYER
, and the balance, if any, shall be paid by BUYER .
Buyer shall timely pay Buyer's loan costs and a loan origination fee not to
exceed 1 % of the loan amount.
c. Assumption. [INTENTIONALLY OMITTED]
d. Seller or Private Financing. Buyer agrees to execute a promissory
note payable to: ELDORADO ARTESIAN SPRINGS, INC. , as __ Joint Tenants __
Tenants in Common __ Other , on the note form as indicated:
__ (UCCC - No Default Rate) NTD 82-3-95 __ (Default Rate) NTD 81-11-83 __ Other
PREPARED BY SELLER'S ATTORNEY secured by a 2nd (lst, 2nd, etc.) deed of trust
encumbering the Property, using the form as indicated:__ Strict Due-On-Sale (TD
72-7-96) __ Creditworthy (TD 73-7-96) __ Assumable - Not Due On Sale (TD 74-7-96) __
Other .
[INTENTIONALLY OMITTED]
Buyer __ Shall __ Shall Not provide a mortgagee's title insurance policy, at
Buyer's expense.
e. Cash at Closing. All amounts paid by Buyer at Closing including Cash
at Closing, plus Buyer's closing costs, shall be in funds which comply with all
applicable Colorado laws, which include cash, electronic transfer funds,
certified check, savings and loan teller's check and cashier's check (Good Funds).
5. FINANCING CONDITIONS AND OBLIGATIONS.
a. Loan Application. If Buyer is to pay all or part of the Purchase
Price by obtaining a new loan, or if an existing loan is not to be released at
Closing, Buyer, if required by such lender, shall make written application by
Loan Application Deadline (ss.2c). Buyer shall cooperate with Seller and lender
to obtain loan approval, diligently and timely pursue same in good faith, execute
all documents and furnish all information and documents required by lender, and,
subject toss.4, timely pay the costs of obtaining such loan or lender consent.
Buyer agrees to satisfy the reasonable requirements of lender, and shall not
withdraw the loan or assumption application, nor intentionally cause any change
in circumstances which would prejudice lender's approval of the loan application
or funding of the loan.
b. Loan Commitment. If Buyer is to pay all or part of the Purchase
Price by obtaining a new loan as specified inss.4b, this contract is conditional
upon Buyer obtaining a written loan commitment including, if required by lender,
(1) lender verification of employment, (2) lender approval of Buyer's
credit-worthiness, (3) lender verification that Buyer has sufficient funds to
close, and (4) specification of any remaining requirements for funding said
loan. This condition shall be deemed waived unless Seller receives from Buyer,
no later than Loan Commitment Deadline (ss.2c), written notice of Buyer's
inability to obtain such loan commitment. If Buyer so notifies Seller, this
contract shall terminate.
IF BUYER WAIVES THIS CONDITION BUT DOES NOT CLOSE, BUYER SHALL BE IN DEFAULT.
c. Credit Information. If Buyer is to pay all or part of the Purchase
Price by executing a promissory note in favor of Seller or if an existing loan is
not to be released at Closing, this contract is conditional upon Seller's
approval of Buyer's financial ability and creditworthiness, which approval shall
be at Seller's sole and absolute discretion. In such case: (l) Buyer shall
supply to Seller by Buyer's Credit Information Deadline (ss.2c), at Buyer's
expense, information and documents concerning Buyer's financial, employment and
credit condition; (2) Buyer consents that Seller may verify Buyer's financial
ability and creditworthiness (including obtaining a current credit report); (3)
any such information and documents received by Seller shall be held by Seller in
confidence, and not released to others except to protect Seller's interest in
this transaction; (4) if Seller does not provide written notice of Seller's
disapproval to Buyer by Disapproval of Buyer's Credit Deadline (ss.2c), then
Seller waives this condition. If Seller does provide written notice of
disapproval to Buyer on or before said date, this contract shall terminate.
d. Existing Loan Review. If an existing loan is not to be released at
Closing, Seller shall provide copies of the loan documents (including note, deed
of trust, and any modifications) to Buyer by Existing Loan Documents Deadline (ss.
2c). This contract is conditional upon Buyer's review and approval of the
provisions of such loan documents. If written notice of objection to such loan
documents, signed by Buyer, is not received by Seller by the Objection to
Existing Loan Deadline (ss.2c), Buyer accepts the terms and conditions of the
documents. If the lender's approval of a transfer of the Property is required,
this contract is conditional upon Buyer's obtaining such approval without change
in the terms of such loan, except as set forth inss.4c. If lender's approval is
not obtained by Approval of Loan Transfer Deadline (ss.2c), this contract shall
terminate on such date. If Seller is to be released from liability under such
existing loan or if Seller's VA eligibility is to be reinstated and Buyer does
not obtain such compliance as set forth inss.4c, this contract may be terminated
at Seller's option.
6. APPRAISAL PROVISIONS.
a. Appraisal Condition.
__ (1) No Appraisal Condition. This subsection a. shall not apply.
__ (2) FHA. It is expressly agreed that notwithstanding any other
provisions of this contract, the Purchaser (Buyer) shall not be obligated to
complete the purchase of the Property described herein or to incur any penalty by
forfeiture of xxxxxxx money deposits or otherwise unless the Purchaser (Buyer)
has been given in accordance with HUD/FHA or VA requirements a written statement
by the Federal Housing Commissioner, Veterans Administration, or a Direct
Endorsement lender setting forth the appraised value of the Property of not less
than $ . The Purchaser (Buyer) shall have the privilege and option of
proceeding with consummation of the contract without regard to the amount of the
appraised valuation. The appraised valuation is arrived at to determine the
maximum mortgage the Department of Housing and Urban Development will insure. HUD
does not warrant the value nor the condition of the Property. The Purchaser
(Buyer) should satisfy himself/herself that the price and condition of the
Property are acceptable.
__ (3) VA. If Buyer is to pay the Purchase Price by obtaining a new
VA-guaranteed loan, it is agreed that, notwithstanding any other provisions of
this contract, Buyer shall not incur any penalty by forfeiture of xxxxxxx money
or otherwise be obligated to complete the purchase of the Property described
herein, if the contract Purchase Price or cost exceeds the reasonable value of
the Property established by the Veterans Administration. Buyer shall, however,
have the privilege and option of proceeding with the consummation of this
contract without regard to the amount of the reasonable value established by the
Veterans Administration.
__ (4) Other. Buyer shall have the sole option and election to
terminate this contract if the Purchase Price exceeds the Property's valuation
determined by an appraiser engaged by BUYER OR BUYER'S LENDER . The contract
shall terminate by Buyer giving Seller written notice of termination and either a
copy of such appraisal or written notice from lender which confirms the
Property's valuation is less than the Purchase Price, received on or before the
Appraisal Deadline (ss.2c). If Seller does not receive such written notice of
termination on or before the Appraisal Deadline (ss.2c), Buyer waives any right to
terminate under this subsection.
b. Cost of Appraisal. Cost of any appraisal to be obtained after the
date of this contract shall be timely paid by __ Buyer __ Seller.
7. EVIDENCE OF TITLE.
a. Evidence of Title; Survey. On or before Title Deadline (ss.2c),
Seller shall cause to be furnished to Buyer, at Seller's expense, a current
commitment for owner's title insurance policy in an amount equal to the Purchase
Price or if this box is checked, __ An Abstract of title certified to a current
date. If a title insurance commitment is furnished, it __ Shall __ Shall Not
commit to delete or insure over the standard exceptions which relate to:
(1) parties in possession,
(2) unrecorded easements,
(3) survey matters,
(4) any unrecorded mechanics' liens,
(5) gap period (effective date of commitment to date deed is
recorded), and
(6) unpaid taxes, assessments and unredeemed tax sales prior to the
year of Closing.
Any additional premium expense to obtain this additional coverage shall be
paid by Seller. An amount not to exceed $200 for the cost of any improvement
location certificate or survey shall be paid by __ Buyer __ Seller. If the cost
exceeds this amount, Buyer shall pay the excess on or before Closing unless Buyer
delivers to Seller or Listing Company, before the improvement location
certificate or survey is ordered, Buyer's written notice allowing the exception
for survey matters. The improvement location certificate or survey shall be
received by Buyer on or before Survey Deadline (ss.2c). Seller shall cause the
title insurance policy to be delivered to Buyer as soon as practicable at or
after Closing.
b. Copies of Exceptions. On or before Title Deadline (ss.2c), Seller, at
Seller's expense, shall furnish to Buyer, (1) a copy of any plats, declarations,
covenants, conditions and restrictions burdening the Property, and (2) if a
title insurance commitment is required to be furnished, and if this box is
checked __ Copies of any Other Documents (or, if illegible, summaries of such
documents) listed in the schedule of exceptions (Exceptions). Even if the box is
not checked, Seller shall have the obligation to furnish these documents pursuant
to this subsection if requested by Buyer any time on or before the Document
Request Deadline (ss.2c). This requirement shall pertain only to documents as
shown of record in the office of the clerk and recorder(s). The abstract or
title insurance commitment, together with any copies or summaries of such
documents furnished pursuant to this Section, constitute the title documents
(Title Documents).
c. Common Interest Community Governing Documents.
__ (1) Not Applicable. This subsection c. shall not apply.
__ (2) Conditional on Buyer's Review. Seller shall cause to be
furnished to Buyer, at Seller's expense, on or before Title Deadline (ss.2c) a
current copy of the owner's association declarations, bylaws, rules and
regulations, party wall agreements (herein collectively "Governing Documents"),
most recent financial documents consisting of (a) annual balance sheet, (b)
annual income and expenditures statement, and (c) annual budget (herein
collectively "Financial Documents"), if any. Written notice of any
unsatisfactory provision(s) in any of these documents signed by Buyer, or on
behalf of Buyer, and given to Seller on or before Governing Documents Deadline,
[which is the same as Title Objection Deadline (ss.2c)], shall terminate this
contract. If Seller does not receive written notice from Buyer within such time,
Buyer accepts the terms of said documents, and Buyer's right to terminate this
contract pursuant to this subsection is waived, notwithstanding the provisions of
ss.8d.
__ (3) Not Conditional on Review. Buyer acknowledges that Seller has
delivered a copy of the Governing Documents and Financial Documents. Buyer has
reviewed them, agrees to accept the benefits, obligations and restrictions which
they impose upon the Property and its owners and waives any right to terminate
this contract due to such documents, notwithstanding the provisions ofss.8d.
8. TITLE.
a. Title Review. Buyer shall have the right to inspect the Title
Documents. Written notice by Buyer of unmerchantability of title or of any other
unsatisfactory title condition shown by the Title Documents shall be signed by or
on behalf of Buyer and given to Seller on or before Title Objection Deadline (ss.
2c), or within five (5) calendar days after receipt by Buyer of any Title
Document(s) or endorsement(s) adding new Exception(s) to the title commitment
together with a copy of the Title Document adding new Exception(s) to title. If
Seller does not receive Buyer's notice by the date(s) specified above, Buyer
accepts the condition of title as disclosed by the Title Documents as
satisfactory.
b. Matters not Shown by the Public Records. Seller shall deliver to
Buyer, on or before Off-Record Matters Deadline (ss.2c) true copies of all
lease(s) and survey(s) in Seller's possession pertaining to the Property and
shall disclose to Buyer all easements, liens or other title matters not shown by
the public records of which Seller has actual knowledge. Buyer shall have the
right to inspect the Property to determine if any third party(ies) has any right
in the Property not shown by the public records (such as an unrecorded easement,
unrecorded lease, or boundary line discrepancy). Written notice of any
unsatisfactory condition(s) disclosed by Seller or revealed by such inspection
shall be signed by or on behalf of Buyer and given to Seller on or before
Off-Record Matters Objection Deadline (ss.2c). If Seller does not receive Buyer's
notice by said date, Buyer accepts title subject to such rights, if any, of third
parties of which Buyer has actual knowledge.
c. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX
LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH
DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX
BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING
IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH
AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT FINANCING
REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS,
EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE
POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES.
In the event the Property is located within a special taxing district and
Buyer desires to terminate this contract as a result, if written notice is
received by Seller on or before Off-Record Matters Objection Deadline (ss.2c),
this contract shall then terminate. If Seller does not receive Buyer's notice by
such date, Buyer accepts the effect of the Property's inclusion in such special
taxing district(s) and waives the right to so terminate.
d. Right to Cure. If Seller receives notice of unmerchantability of
title or any other unsatisfactory title condition(s) or commitment terms as
provided inss.8 a or b above, Seller shall use reasonable effort to correct said
items and bear any nominal expense to correct the same prior to Closing. If such
unsatisfactory title condition(s) are not corrected on or before Closing, this
contract shall then terminate; provided, however, Buyer may, by written notice
received by Seller, on or before Closing, waive objection to such items.
e. Right of First Refusal. If the Governing Documents require written
approval of the sale contemplated by this contract or waiver of any option or
right of first refusal by the owners' association or any other owner in the
owners' association, Seller shall timely submit this contract and request approval
of the sale or waiver of any option or right of first refusal pursuant to such
provisions. If no such approval or waiver is obtained on or before Right Of
First Refusal Deadline (ss.2c), this contract shall terminate. Buyer agrees to
cooperate with Seller in obtaining the approval and/or waiver if required by the
applicable Governing Documents and shall make available such information as the
owners' association may reasonably require.
f. Title Advisory. The Title Documents affect the title, ownership and
use of the Property and should be reviewed carefully. Additionally, other
matters not reflected in the Title Documents may affect the title, ownership and
use of the Property, including without limitation boundary lines and
encroachments, area, zoning, unrecorded easements and claims of easements, leases
and other unrecorded agreements, and various laws and governmental regulations
concerning land use, development and environmental matters. THE SURFACE ESTATE
MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE
SURFACE ESTATE DOES NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL RIGHTS. THIRD
PARTIES MAY HOLD INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY OR
WATER ON OR UNDER THE PROPERTY, WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND
USE THE PROPERTY. Such matters may be excluded from the title insurance policy.
Buyer is advised to timely consult legal counsel with respect to all such matters
as there are strict time limits provided in this contract (e.g., Title Objection
Deadline [ss.2c] and Off-Record Matters Objection Deadline [ss.2c]).
9. LEAD-BASED PAINT. [omitted]
10. PROPERTY DISCLOSURE AND INSPECTION. [ omitted]
11. CLOSING. Delivery of deed(s) from Seller to Buyer shall be at
Closing (Closing). Closing shall be on the date specified as the Closing Date (ss.
2c) or by mutual agreement at an earlier date. The hour and place of Closing
shall be as designated by SELLER
12. TRANSFER OF TITLE. Subject to tender or payment at Closing as
required herein and compliance by Buyer with the other terms and provisions
hereof, Seller shall execute and deliver a good and sufficient SPECIAL WARRANTY
deed to Buyer, at Closing, conveying the Property free and clear of all taxes
except the general taxes for the year of Closing. Except as provided herein,
title shall be conveyed free and clear of all liens, including any governmental
liens for special improvements installed as of the date of Buyer's signature
hereon, whether assessed or not. Title shall be conveyed subject to:
a. those specific Exceptions described by reference to recorded
documents as reflected in the Title Documents accepted by Buyer in accordance
withss.8a [Title Review],
b. distribution utility easements (including cable TV),
c. those specifically described rights of third parties not shown by the
public records of which Buyer has actual knowledge and which were accepted by
Buyer in accordance withss.8b [Matters Not Shown by the Public Records], and
d. inclusion of the Property within any special taxing district, and
e. the benefits and burdens of any declaration and party wall
agreements, if any, and
f. other NONE OTHER.
13. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall
be paid at or before Closing from the proceeds of this transaction or from any
other source.
14. CLOSING COSTS; DOCUMENTS AND SERVICES Buyer and Seller shall pay, in
Good Funds, their respective Closing costs and all other items required to be
paid at Closing, except as otherwise provided herein. Buyer and Seller shall
sign and complete all customary or reasonably required documents at or before
Closing. Fees for real estate Closing services shall be paid at Closing by __
One-Half by Buyer and One-Half by Seller __ Buyer __ Seller __ Other .
Any fees incident to the transfer from Seller to Buyer assessed on or on
behalf of the owners' association shall be paid by __ Buyer __ Seller.
The local transfer tax of N/A % of the Purchase Price shall be paid at
Closing by __ Buyer __ Seller. Any sales and use tax that may accrue because of
this transaction shall be paid when due by __ Buyer __ Seller.
15. PRORATIONS. The following shall be prorated to Closing Date, (ss.2c)
except as otherwise provided:
a. Taxes. Personal property taxes, if any, and general real estate
taxes for the year of Closing, based on
__ The Taxes for the Calendar Year Immediately Preceding Closing __ The Most Recent
Mill Levy and Most Recent Assessment __ Other ;
b. Rents. Rents based on __ Rents Actually Received __ Accrued. Security
deposits held by Seller shall be credited to Buyer. Seller shall assign all
leases to Buyer and Buyer shall assume such leases.
c. Association Assessments. Current regular owners' association
assessments and association dues. Owners' association assessments paid in
advance shall be credited to Seller at Closing. Cash reserves held out of the
regular owners' association assessments for deferred maintenance by the owners'
association shall not be credited to Seller except as may be otherwise provided
by the Governing Documents. Any special assessment by the owners' association
for improvements that have been installed as of the date of Buyer's signature
hereon shall be the obligation of Seller. Any other special assessment assessed
prior to Closing Date (ss.2c) by the owners' association shall be the obligation
of __ Buyer __ Seller. Seller represents that the amount of the regular owners'
association assessment is currently payable at $N/A per N/A and that there are
no unpaid regular or special assessments against the Property except the current
regular assessments and except N/A .
Such assessments are subject to change as provided in the Governing Documents.
Seller agrees to promptly request the owners' association to deliver to Buyer
before Closing Date (ss.2c) a current statement of assessments against the
Property. Any fees incident to the issuance of such statement of assessments
shall be paid by __ Buyer __ Seller.
d. Loan Assumption - Mortgage Insurance. FHA or private mortgage
insurance premium, if any, __ Shall __ Shall Not be apportioned to Closing Date (ss.
2c). Any such amount shall be apportioned as follows: N/A .
e. Other Prorations. Water, sewer charges; and interest on continuing
loan(s), if any; and NONE OTHER
.
f. Final Settlement. Unless otherwise agreed in writing, these
prorations shall be final.
16. POSSESSION. Possession of the Property shall be delivered to Buyer
on Possession Date and Possession Time (ss.2c), subject to the following lease(s)
or tenancy(s):NONE. If Seller, after Closing, fails to deliver possession as
specified, Seller shall be subject to eviction and shall be additionally liable
to Buyer for payment of $100 per day from the Possession Date (ss.2c) until
possession is delivered.
Buyer __ Does __ Does Not represent that Buyer will occupy the Property as
Buyer's principal residence.
17. NOT ASSIGNABLE. This contract shall not be assignable by Buyer
without Seller's prior written consent. Except as so restricted, this contract
shall inure to the benefit of and be binding upon the heirs, personal
representatives, successors and assigns of the parties.
18. CONDITION OF, AND DAMAGE TO PROPERTY AND INCLUSIONS. Except as
otherwise provided in this contract, the Property, Inclusions or both shall be
delivered in the condition existing as of the date of this contract, ordinary
wear and tear excepted.
a. Casualty; Insurance. In the event the Property or Inclusions shall
be damaged by fire or other casualty prior to Closing, in an amount of not more
than ten percent of the total Purchase Price, Seller shall be obligated to repair
the same before the Closing Date (ss.2c). In the event such damage is not
repaired within said time or if the damages exceed such sum, this contract may be
terminated at the option of Buyer by delivering to Seller written notice of
termination. Should Buyer elect to carry out this contract despite such damage,
Buyer shall be entitled to a credit, at Closing, for all the insurance proceeds
resulting from such damage to the Property and Inclusions payable to Seller but
not the owners' association, if any, plus the amount of any deductible provided
for in such insurance policy, such credit not to exceed the total Purchase Price.
b. Damage; Inclusions; Services. Should any Inclusion(s) or service(s)
(including systems and components of the Property, e.g. heating, plumbing, etc.)
fail or be damaged between the date of this contract and Closing or possession,
whichever shall be earlier, then Seller shall be liable for the repair or
replacement of such Inclusion(s) or service(s) with a unit of similar size, age
and quality, or an equivalent credit, but only to the extent that the maintenance
or replacement of such Inclusion(s), service(s) or fixture(s) is not the
responsibility of the owners' association, if any, less any insurance proceeds
received by Buyer covering such repair or replacement. Seller and Buyer are
aware of the existence of pre-owned home warranty programs which may be purchased
and may cover the repair or replacement of some Inclusion(s).
c. Walk-Through; Verification of Condition. Buyer, upon reasonable
notice, shall have the right to walk through the Property prior to Closing to
verify that the physical condition of the Property and Inclusions complies with
this contract.
19. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document,
Buyer and Seller acknowledge that the Selling Company or the Listing Company has
advised that this document has important legal consequences and has recommended
the examination of title and consultation with legal and tax or other counsel
before signing this contract.
20. TIME OF ESSENCE AND REMEDIES. Time is of the essence hereof. If any
note or check received as Xxxxxxx Money hereunder or any other payment due
hereunder is not paid, honored or tendered when due, or if any other obligation
hereunder is not performed or waived as herein provided, there shall be the
following remedies:
a. If Buyer is in Default:
__ (1) Specific Performance. Seller may elect to treat this contract
as canceled, in which case all payments and things of value received hereunder
shall be forfeited and retained on behalf of Seller, and Seller may recover such
damages as may be proper, or Seller may elect to treat this contract as being in
full force and effect and Seller shall have the right to specific performance or
damages, or both.
__ (2) Liquidated Damages. All payments and things of value received
hereunder shall be forfeited by Buyer and retained on behalf of Seller and both
parties shall thereafter be released from all obligations hereunder. It is agreed
that such payments and things of value are LIQUIDATED DAMAGES and (except as
provided in subsection c) are SELLER'S SOLE AND ONLY REMEDY for Buyer's failure
to perform the obligations of this contract. Seller expressly waives the remedies
of specific performance and additional damages.
b. If Seller is in Default: Buyer may elect to treat this
contract as canceled, in which case all payments and things of value received
hereunder shall be returned and Buyer may recover such damages as may be proper,
or Buyer may elect to treat this contract as being in full force and effect and
Buyer shall have the right to specific performance or damages, or both.
c. Costs and Expenses. In the event of any arbitration or
litigation relating to this contract, the arbitrator or court shall award to the
prevailing party all reasonable costs and expenses, including attorney fees.
21. MEDIATION. If a dispute arises relating to this contract, prior to
or after Closing, and is not resolved, the parties shall first proceed in good
faith to submit the matter to mediation. Mediation is a process in which the
parties meet with an impartial person who helps to resolve the dispute informally
and confidentially. Mediators cannot impose binding decisions. The parties to
the dispute must agree before any settlement is binding. The parties will
jointly appoint an acceptable mediator and will share equally in the cost of such
mediation. The mediation, unless otherwise agreed, shall terminate in the event
the entire dispute is not resolved 30 calendar days from the date written notice
requesting mediation is sent by one party to the other(s). This Section shall not
alter any date in this contract, unless otherwise agreed.
22. XXXXXXX MONEY DISPUTE. Notwithstanding any termination of this contract,
Buyer and Seller agree that, in the event of any controversy regarding the
Xxxxxxx Money and things of value held by broker or Closing Company (unless
mutual written instructions are received by the holder of the Xxxxxxx Money and
things of value), broker or Closing Company shall not be required to take any
action but may await any proceeding, or at broker's or Closing Company's option
and sole discretion, may interplead all parties and deposit any moneys or things
of value into a court of competent jurisdiction and shall recover court costs and
reasonable attorney fees.
23. TERMINATION. In the event this contract is terminated, all payments and
things of value received hereunder shall be returned and the parties shall be
relieved of all obligations hereunder, subject toss.ss.10c, 21 and 22.
24. ADDITIONAL PROVISIONS. (The language of these additional provisions has
not been approved by the Colorado Real Estate Commission.)
SEE ADDITIONAL PROVISIONS, ATTACHED HERETO AND INCORPORATED HEREIN BY THIS
REFERENCE.
25. ENTIRE AGREEMENT; SUBSEQUENT MODIFICATION; SURVIVAL. This contract
constitutes the entire contract between the parties relating to the subject
hereof, and any prior agreements pertaining thereto, whether oral or written,
have been merged and integrated into this contract. No subsequent modification of
any of the terms of this contract shall be valid, binding upon the parties, or
enforceable unless made in writing and signed by the parties. Any obligation in
this contract which, by its terms, is intended to be performed after termination
or Closing shall survive the same.
26. FACSIMILE. Signatures __ May __ May Not be evidenced by facsimile.
Documents with original signatures shall be provided to the other party at
Closing, or earlier upon request of any party.
27. NOTICE. Except for the notice requesting mediation described inss.
21, any notice to Buyer shall be effective when received by Buyer or by Selling
Company and any notice to Seller shall be effective when received by Seller or
Listing Company.
28. NOTICE OF ACCEPTANCE; COUNTERPARTS. This proposal shall expire unless
accepted in writing, by Buyer and Seller, as evidenced by their signatures below,
and the offering party receives notice of acceptance pursuant toss.27 on or
before Acceptance Deadline Date and Acceptance Deadline Time (ss.2c). If
accepted, this document shall become a contract between Seller and Buyer. A copy
of this document may be executed by each party, separately, and when each party
has executed a copy thereof, such copies taken together shall be deemed to be a
full and complete contract between the parties.
Buyer Xxxxx X. Xxxxxx, an individual Buyer
Date of Buyer's Signature: 08/24/01 Date of Buyer's Signature:
Buyer's Address: 00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
Buyer's Telephone No: (000) 000-0000 Buyer's Fax No: (000) 000-0000
[NOTE: If this offer is being countered or rejected, do not sign this
document. Refer toss.29]
ELDORADO ARTESIAN SPRINGS, INC.
a Colorado corporation
By: /s/ /s/
Seller Xxxxxxx X. Xxxxxx, President Seller Xxxxx X. Xxxxxx, Secertary
Date of Seller's Signature: 8/24/01 Date of Seller's Signature:
8/24/01
Seller's Address: 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000
Seller's Telephone No: (000) 000-0000 Seller's Fax No: (000) 000-0000
29. COUNTER; REJECTION. This offer is __ Countered __ Rejected.
Initials only of party (Buyer or Seller) who countered or rejected
offer
END OF CONTRACT
[REAL ESTATE BROKER INFORMATION INTENTIONALLY OMITTED]
ADDITIONAL PROVISIONS ADDENDUM ("APA")
attached to and forming a part of that certain
Contract to Buy and Sell Real Estate (Residential) (the "Contract")
by and between Eldorado Artesian Springs, Inc., as Seller, and
Xxxxx Xxxxxx, as Buyer
ADDITIONAL PROVISIONS INSERT FOR CONTRACT SECTION 24
----------------------------------------------------
24. ADDITIONAL PROVISIONS.
---------------------
(a) Property Disclosure and Inspection. Upon conclusion of the
-------------------------------------
inspection period, Buyer will rely solely upon its own
inspection of the Property and Inclusions and such
investigation, testing, evaluation, and consultants as Buyer
deems necessary to evaluate the condition of the Property and
the Inclusions and the suitability of the Property and the
Inclusions for Buyer's intended use. Buyer acknowledges that
the opportunity to inspect the Property and Inclusions provided
herein is sufficient for Buyer to obtain whatever information
regarding the Property and Inclusions as may be necessary for
Buyer to determine the condition of the Property and the
Inclusions and their suitability for Buyer's intended use.
SELLER DOES NOT, BY THE EXECUTION AND DELIVERY OF THIS
CONTRACT, AND SELLER SHALL NOT, BY THE EXECUTION AND DELIVERY
OF ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN
CONNECTION WITH THE CLOSING, MAKE ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, OR ANY KIND OR NATURE WHATSOEVER,
WITH RESPECT TO THE PROPERTY OR THE INCLUSIONS, AND ALL SUCH
WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SELLER MAKES, AND SHALL MAKE, NO
EXPRESS OR IMPLIED WARRANTY AS TO MATTERS OF TITLE (OTHER THAN
SELLER'S WARRANTY OF TITLE SET FORTH IN THE SPECIAL WARRANTY
DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, VALUATION, GOVERNMENTAL
APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR
THING RELATED TO OR AFFECTING THE PROPERTY (HEREINAFTER
COLLECTIVELY CALLED THE "DISCLAIMED MATTERS"). BUYER AGREES
THAT, WITH RESPECT TO THE PROPERTY AND THE INCLUSIONS, BUYER
HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR
INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER. BUYER
WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE
PROPERTY AND THE INCLUSIONS (INCLUDING BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITION THEREOF) AND RELY UPON THE
SAME AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, THE DISCLAIMED MATTERS,
MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND
INVESTIGATIONS.
(b) Seller's Representations and Warranties. Seller hereby represents and
------------------------------------------
warrants to Buyer as of the date of the Contract and as of the Closing Date as
follows:
(1) Neither the execution of this Contract nor its consummation
constitutes, or will result in, any breach of any of the terms,
conditions or provisions of, or is a default under, any indenture,
charter, bylaw, mortgage, loan agreement, lien, license, judgment,
decree, order, instrument or other verbal or written agreement,
covenant or restriction to which Seller is a party or is subject
or to which the Property is subject.
(2) Seller owns fee simple title to the Property and their exists no
restriction on the right of Seller to transfer the Property.
(3) There is no litigation pending (or to Seller's knowledge
threatened) against or concerning any part of the Property; nor
does Seller know of or have reasonable grounds to know of any
basis for any such action.
(4) Seller has no knowledge of any pending or threatened condemnation
or eminent domain proceeding concerning any part of the Property.
(5) Seller has received no notice of, and to the best of Seller's
knowledge, there are no violations of any laws, orders, regulations
or requirements of any governmental authority affecting any part of
the Property.
(c) Brokers. The parties each warrant that they have dealt with no real
-------
estate broker in connection with the purchase and sale contemplated by this
Contract. The parties agree to mutually hold each other harmless from any claim
for a broker's fee, finder's fee or commission of any person, which indemnity
will include, without limitation, reasonable attorneys' fees incurred in that
regard.
(d) Contract to Survive Closing. Except such of the terms, conditions,
------------------------------
covenants and agreements under this Contract which are, by their very nature,
fully and completely performed upon the closing of the purchase and sale, all of
the terms, conditions, representations, warranties, covenants and agreements
stated in this Contract shall survive the closing and shall continue, after
closing, to be binding upon and inure to the benefit of the parties, their heirs,
successors and assigns.
(e) Termination. Besides all other rights and remedies of the Purchaser and
-----------
Seller, as stated in this Contract, Buyer shall have the right to terminate this
Contract, if any representations or warranties of Seller stated in this Contract
are not true and correct as of the closing date.
(f) Additional Documents. The parties agree to execute any additional
---------------------
documents necessary to carry out the purposes of this Contract, consistent with
its terms, including, but not limited to assignments of all rents and royalties
under any existing mineral or other leases.
(g) Time for Performance. If the date for performance of any party's
----------------------
obligations under the Contract falls on a Saturday, Sunday or other nationally
recognized holiday, then the date for performance of such obligation shall be
deemed to modified to be the immediately next succeeding day which is not a
Saturday, Sunday or other nationally recognized holiday.
(h) Conflict. In the event of a conflict between the terms and conditions
--------
of the Contract and this Additional Provisions Addendum, the terms and conditions
of this Additional Provisions Addendum shall control in all respects.
(i) Headings. The headings of the various paragraphs of the Contract and
--------
this Additional Provisions Addendum have been inserted for reference only and
shall not have the effect of modifying, amending or changing the express terms
and provisions of this Additional Provisions Addendum.
(j) Executed in Counterparts . The Contract may be executed in any number
--------------------------
of counterparts, each of which shall be deemed to be an original, and all of such
counterparts shall constitute one agreement. To facilitate execution of the
Contract, the Parties may execute and exchange telecopy counterparts of the
signature pages, so long as such telecopied counterparts are replaced with
original counterparts of the signature pages as soon as practicable thereafter.
(k) Easements. Seller agrees to convey easements for ingress and egress and
---------
certain trail easements to the satisfaction of Buyer.
(l) Mobile Homes. Seller shall convey the mobile homes on the property to Buyer
-------------
by title and by xxxx of sale.
(m) Water Taps. Six (6) water taps shall be conveyed by Seller to Buyer for
----------
domestic use and irrigation use. The water taps shall be conveyed by xxxx of
sale and shall provide that no monthly or other fee for water usage shall be
assessed to Buyer.
