Exhibit 10.13
PURCHASE AND SALE AGREEMENT
between
THE GENESEE COMPANY,
a Colorado corporation,
as Seller,
and
RS INVESTMENTS/STONEBRIDGE, LLC,
a Colorado limited liability company,
as Purchaser
December ____, 19999
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
1st day of December, 1999 (the "Effective Date"), by and between THE GENESEE
COMPANY, a Colorado corporation ("Seller"), and RS INVESTMENTS/STONEBRIDGE, LLC,
a Colorado limited liability company ("Purchaser").
Recitals
A. Seller is, or will be, 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.
B. As used in this Agreement, the term "Property" includes all of the
following:
(1) The real property described in Exhibit A together with all
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, together with all of Seller's right,
title and interest in and to any strips of land, streets, and alleys abutting or
adjoining such real property (the "Real Property");
(2) 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"); and
(3) A nonexclusive interests in Seller's interest in 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, marketing,
feasibility 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").
C. Seller desires to sell the Property to Purchaser, and Purchaser
desires to purchase the Property from Seller, 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
Purchase and Sale of the Property
1.1 Purchase. Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase from Seller, all of the Property, subject to and
upon the terms and conditions set forth in this Agreement.
1.2 Purchase Price. The total purchase price (the "Purchase Price") for
the Property shall be $5,266,512.00, payable, subject to prorations and
adjustments in accordance with Article VIII, at the closing (the "Closing") in
cash, by certified or cashier's check, wire transfer, or other immediately
available funds.
ARTICLE II
Investigation of the Property
2.1 Permitted Exceptions; Title Commitment. Seller shall deliver to
Purchaser prior to the Closing, a current title insurance commitment (the "Title
Commitment") issued by Land Title Guarantee Company located at 0000 X. 0xx Xxx.,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (the "Title Company"), showing marketable
title to the Property 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 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) any other instruments approved by
Purchaser.
ARTICLE III
Title
3.1 Status of Title. At Closing, Seller shall convey to Purchaser good,
marketable and insurable fee simple title to the Property, subject only to the
Permitted Exceptions. Seller shall not, after the date hereof, sell, convey,
option, mortgage, deed in trust, encumber, lease, contract to do any of the
foregoing or otherwise convey, abandon, relinquish, cloud, or encumber title to
the Property or any part thereof or contract to do any of the foregoing, except
as may be expressly provided for herein.
3.2 Issuance of Title Policy. At Closing, Seller shall cause the Title
Company to issue to Purchaser, or unconditionally commit to issue to Purchaser
after Closing, an ALTA extended coverage owner's policy of title insurance
insuring marketable, insurable title to the Property 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 requirements
contained in the Title Commitment or in any update thereof, except for those
requirements which by their nature can only be satisfied by Purchaser.
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3.3 Failure of Title. In the event Seller, through no fault of its own,
is unable to convey title to the Property on the Closing Date in accordance with
the provisions of this Agreement, Seller shall, on or before the Closing Date,
give notice of such inability (and the nature thereof) to Purchaser, and
Purchaser may either (i) accept such title as Seller can convey, without any
reduction of the Purchase Price, or (ii) terminate this Agreement by written
notice to Seller and the Title Company given on or before the Closing Date.
ARTICLE IV
Seller's Representations, Warranties and Covenants
Seller represents, warrants and covenants 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
Property or any portion thereof or any interest therein.
4.2 No Possessory Rights. Except for any rights of possession under the
Permitted Exceptions, there are no parties in possession of any of the Real
Property, and there are no other rights of possession or use which have been
granted to any third party.
4.3 Notices. Seller has no knowledge, and Seller has not received
notice, of: (i) the Property being in violation of any applicable statutes,
ordinances, codes (including, but not limited to, zoning, building, subdivision,
pollution, environmental protection, water disposal, health, fire and safety
engineering codes), or the rules and regulations of, any governmental authority
having jurisdiction over the Property; (ii) any actions, suits, proceedings or
claims pending or threatened with respect to or in any manner affecting the
Property or the ability of Seller to consummate the transaction contemplated by
this Agreement; or (iii) any pending or threatened condemnation or similar
proceedings or special assessments affecting the Property, or any part thereof.
4.4 Environmental Conditions. Seller has no knowledge, and Seller has
not received notice, of: (i) any violation of Applicable Environmental Laws
relating to the Real Property; or (ii) the presence, use, storage or discharge
of any Hazardous Substances on, in or under the Real Property.
As used herein, the term "Applicable Environmental Laws" shall mean any
local, state or federal law, rule or regulation, pertaining to environmental
regulation, contamination, cleanup or disclosure, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (42 U.S.C. ss. 9601, et seq.), the Resource, Conservation and
Recovery Act, as amended, (42 U.S.C. ss. 6901, et seq.), Superfund Amendments
and Reauthorization Act of 1986 (Pub. L. 00-000 000 Stat. 1613), the Toxic
Substances Control Act (15 U.S.C. ss. 2601, et seq.), the Emergency Planning and
Community Right to Know Act of 1986 (42 U.S.C. ss. 1101, et seq.) and all
amendments of the foregoing, or any state superlien or environmental clean-up or
disclosure statutes. As used herein, the term "Hazardous Substances" shall mean
all substances and materials which are included under or regulated by any
Applicable Environmental Law together with asbestos, polychlorinated biphenyls,
petroleum and raw materials which include hazardous constituents.
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4.5 Authority. Seller is a corporation 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.
4.6 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.
4.7 Omissions; Indemnity. The copies of any documents furnished to
Purchaser in connection with this transaction are, to the best of Seller's
knowledge, true and complete copies of the documents they purport to be. 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 Closing and shall survive 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.
Except as expressly set forth in this Agreement, Purchaser acknowledges
that the Property 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 Property purchased by Purchaser. Purchaser has made
or will make prior to each Closing its own inspection and investigation of the
Property, 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 Property contemplated, and all zoning and
regulatory matters pertinent to the Property. Purchaser shall purchase the
Property 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 Property except as
specifically set forth herein.
ARTICLE V
Purchaser's Representations, Warranties and Covenants
Purchaser represents, warrants and covenants to Seller as
follows:
5.1 Authority. Purchaser is a limited liability company 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 action
has been taken by Purchaser in connection
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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 Additional Acts. In addition to the acts and documents recited
herein and contemplated to be performed, executed and delivered by Purchaser,
Purchaser shall perform, execute and deliver or cause to be performed, executed
or delivered at the Closing or thereafter any and all further acts, documents
and assurances as Seller or the Title Company may reasonably require to
consummate or evidence the consummation of the transactions contemplated herein.
5.3 Omissions; Indemnity. 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 Closing and shall survive
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
Purchaser's Obligation to Close
6.1 Conditions. Purchaser shall not be obligated to close hereunder
unless each of the following conditions shall exist on the date of Closing (as
may be extended pursuant to this Agreement, the "Closing Date"):
6.1.1 Title Policy. The Title Company shall be prepared to
issue (or prepared to unconditionally commit to issue) the Title Policy as
described in Section 3.2.
6.1.2 Accuracy of Representations. The representations and
warranties made by Seller in Article IV shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
6.1.3 Seller's Performance. Seller shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by Seller on or before the Closing
Date.
6.1.4 Failure of Conditions. If any condition specified in
Section 6.1 is not satisfied on or before Closing, Purchaser may, at its option,
(i) waive such condition either at the time originally established for Closing
or at any time thereafter, or (ii) terminate this Agreement by written notice
thereof to Seller.
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ARTICLE VII
Closing
7.1 Time of Closing. Closing shall take place at 10:00 a.m. on December
___, 1999, in the offices of the Title Company located at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such other time and place or on
such earlier date as may be mutually agreed upon by Seller and Purchaser.
7.2 Deliveries. At Closing the following shall occur:
7.2.1 Deed. Seller shall deliver to Purchaser a duly executed
and acknowledged special warranty deed, of form reasonably acceptable to
Purchaser, conveying good, marketable and insurable fee simple title to the Real
Property to Purchaser, subject only to the Permitted Exceptions.
7.2.2 Payment. Purchaser shall pay to Seller the Purchase
Price as provided in Section 1.2, subject to the adjustments described in
Article VIII.
7.2.3 Possession. Possession of the Property shall be
delivered to Purchaser.
7.2.4 Assignment of Intangibles; Delivery of Permits. Seller
shall execute and deliver to Purchaser a partial, nonexclusive assignment, of
form reasonably acceptable to Purchaser, of all of Seller's right, title and
interest in and to the Plans and Permits, to the extent the same are assignable.
Seller shall deliver to Purchaser the originals (or accurate copies) of all
Plans 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.
7.2.5 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.
7.2.6 Withholding Exemption Certificate. Seller shall execute
and deliver to Purchaser and the Title Company a Colorado Form DR-1083, in form
required by law.
7.2.7 Real Property Transfer Declaration. Purchaser shall
execute and deliver to Seller and the Title Company a Real Property Transfer
Declaration, in form required by law, concerning information with respect to a
conveyance of a Colorado real property interest.
7.2.8 Mechanics' Liens. Seller shall execute and deliver to
the Title Company such agreements or statements concerning claims for mechanic's
liens as may be required by the Title Company in order to issue the Title
Policy.
7.2.9 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
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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 VIII
Prorations and Closing Expenses
8.1 Closing Adjustments. The cash due at Closing pursuant to Section
1.2.2 shall be subject to adjustment as of Closing in accordance with the
following provisions:
8.2 Taxes. Real and personal property taxes on the Property for the
year of Closing shall be prorated to Closing based on the most recent assessed
valuations and mill levy available. Prior to or at Closing, Seller shall pay all
taxes on the Property which are due on or before the Closing. Prior to or at
Closing, Seller shall pay the full amount (whether or not then due) of all
outstanding special assessments against the Property or any part thereof.
8.3 Liens and Encumbrances. The amount of any lien, deed of trust or
other monetary encumbrance then affecting the Property, 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.
8.4 Closing Costs. Purchaser shall pay its attorneys' fees and costs.
Seller shall pay the premium for the Title Policy, the cost of recording the
deed and any instruments required to discharge any liens or encumbrances against
the Property which are not Permitted Exceptions, all conveyance, transfer, sales
and other taxes of fees, if any, the Title Company's escrow and closing fee, its
attorneys' fees and costs, and such other closing costs as are customarily paid
by a seller in the Denver metropolitan area.
8.5 Settlement Statement. At 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.
ARTICLE IX
Remedies
9.1 Breach by Seller. Time is of the essence of Seller's obligations
hereunder. If Seller fails to comply with any of its obligations hereunder which
are required to be performed at or prior to Closing, Purchaser, at Purchaser's
option, shall be entitled, as its sole remedy, to: terminate this Agreement,
whereupon both parties shall be discharged from all duties and performance
hereunder. In no event shall Seller be liable to Purchaser for any actual,
punitive, speculative, consequential or other damages.
9.2 Breach by Purchaser. Time is of the essence of Purchaser's
obligations hereunder. If Purchaser fails to complete the acquisition as herein
provided by reason of any default by Purchaser, Seller, as its sole and
exclusive remedy, shall be entitled to terminate this Agreement.
9.3 Post-Closing Breach. The provisions of Sections 9.1 and 9.2
notwithstanding, either party shall be entitled, in addition to any other
remedies available under
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this Agreement or otherwise, to seek damages for any post-Closing breach by the
other party of its representations, warranties or covenants hereunder.
9.4 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 such litigation or legal action,
including, without limitation, its reasonable attorneys' fees and costs.
ARTICLE X
General Provisions
10.1 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.
10.2 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.
10.3 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.
10.4 Survival. All of the parties' representations, warranties,
covenants and agreements hereunder, to the extent not fully performed or
discharged by or through Closing, shall be deemed not merged into any instrument
delivered at Closing and shall remain fully enforceable thereafter.
10.5 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, the expiration
of the Inspection Period or the 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.
10.6 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
10.7 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
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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:
If to Seller:
The Genesee Company
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telefacsimile No.: (000) 000-0000
If to Purchaser:
RS Investments/Stonebridge, LLC
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
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 10.7.
10.8 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.
10.9 Assignment. Purchaser may not assign this Agreement without the
consent of Seller, except in connection with a 1031 tax-deferred exchange.
10.10 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.
10.11 Facsimile Signatures. The facsimile signature of any party on
this Agreement shall be deemed an original for all purposes.
10.12 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed a duplicate original.
10.13 Acceptance. Upon execution and delivery of this Agreement by
Purchaser and 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
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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 10.7 hereof) of such revocation to the other party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the Effective Date.
SELLER:
THE GENESEE COMPANY, a Colorado
corporation
By:
--------------------------------
Xxxxx X. Xxxxx, Vice President
PURCHASER:
RS INVESTMENTS/STONEBRIDGE, LLC,
a Colorado limited liability company
By:
--------------------------------
Xxxxxx X. Short, Manager
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EXHIBIT A
to
PURCHASE AND SALE AGREEMENT
Legal Description
XXXX 0-0, 00 XXX 00, XXXXX 0,
XXXX 1-4, 8-13, 18-25, 31-34 AND 41-46, BLOCK 2,
XXXX 0-0, 00-00 XXX 00-00, XXXXX 0,
XXXX 0-0, XXXXX 4, AND
XXXX 0-0 XXX 00-00, XXXXX 0,
XXXXX XXXXX - FILING NO. 1,
COUNTY OF JEFFERSON,
STATE OF COLORADO
AND
XXXX 0 XXX 0, XXXXX 00,
XXXXX XXXXX FILING XX. 0 - XXXXXX X,
XXXXXX XX XXXXXXXXX,
XXXXX OF COLORADO
A-1
