The printed portions of this form, except (italiceed)
(differentiated) additions, have been approved by
the Colorado Real Estate Commission (CBS2-7-96)
KELLER WILLIAMS
R E A L T Y, LLC
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT
LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING
Date January 16, 1997
1. PARTIES AND PROPERTY. Commercial Acquisitions Corporation and/or assiqns,
buyer(s) [Buyer] agrees to buy, and the undersigned seller(s) [Seller] agrees to
sell, on the terrns and conditions set forth in this contract, the following
described real estate in the County of Denver , Colorado, to wit:
Lots 16-19, Block 27, Park Avenue Addition, County of Denver, State of Colorado
known as No. 1325 East 16th Avenue Denver. CO 80218 (address)
together with all interest of Seller in vacated streets and alleys adjacent
thereto, all easements and other appurtenances thereto, all improvements thereon
and all attached fixtures thereon, except as herein excluded (co11ectively the
Property).
2. INCLUSIONS / EXCLUSIONS. The purchase price includes the following items (a)
if attached to the Property on the date of this contract: lighting, heating,
plumbing, ventilating, and air conditioning fixtures, TV antennas, water
softeners, smoke/ fire/ burglar alarms, security devices, inside telephone
wiring and connecting blocks/jacks, plants, mirrors, floor coverings, intercom
systems, built-in kitchen appliances, sprinkler systems and controls; (b) if on
the Property whether attached or not on the date of this contract: storm
windows, stormdoors, window and porch shades, awnings, blinds, screens, curtain
rods, drapery rods, all keys and (c) All personal and real property, excluding
trade fixtures, currentlv on premesis and used in the operations and/or
management of said real pronertv. The above-described included items
(Inclusions) are to be conveyed to Buyer by Seller by bill of sale at the
closing, free and clear of all taxes, liens and encumbrances, except as provided
in Section 12. The following attached fixtures are excluded from this sale: None
3. PURCHASE PRICE AND TERMS. The purchase price shall be $ 465,000.00, payable
in U.S. dollars by Buyer as follows: (Complete the applicable terms below.)
(a) EARNEST MONEY.
$5,000.00 in the form of a promissory note,as earnest money deposit and part
payment of the purchase price, payable to and held by Midtown Real Properties,
broker,in its trust accunt on behalf of both Seller and Buyer. Broker is
authorized to deliver the earnest money deposit to the closing agent, if any, at
or before closing.
The balance of $ 460,000.00 (purchase price less earnest money) shall be paid as
follows:
(b) CASH AT CLOSING.
$ 45,000.00 , plus closing costs, to be paid by Buyer at closing 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). Subject to the provisions of Section 4, if the existing loan
balance at the time of closing shall be different from the loan balance in
Section 3, the adjustment shall be made in Good Funds at closing or paid as
follows: N/A.
[The printed portions of this form, except (italicized) (differentiated)
additions, have been approved by the Colorado Real Estate Commission
(CBS2-9-95)]
(c) NEW LOAN.
$ 335,000.00 by Buyer obtaining a new loan.
This loan will be secured by a First deed of trust.
(1st, 2nd, etc.)
The loan shall be amortized over a period of 30 years at approximately $
2,695.49 per month including principal and interest not to exceed 9 % 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 O % of the total loan amount. Notwithstanding the loan's interest
rate, the first O loan discount points shall be paid by N/A , and the balance,
if any, shall be paid by N/A .
Buyer shall timely pay a loan origination fee not to exceed 1 % of the loan
amount and Buyer's loan costs.
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4. FINANCING CONDITIONS AND OBLIGATIONS:
(a) LOAN APPLICATION(S). If Buyer is to pay all or part of the purchase
price as set forth in Section 3 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 within 10 calendar days from acceptance of this contract.
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 the lender, and, subject to Section 3,
timely pay the costs of obtaining such loan or lender consent.
(b) LOAN APPROVAL. If Buyer is to pay all or part of the purchase price by
obtaining a new loan as specified in Section 3, this contract is conditional
upon lender's approval of the new loan on or before February 20, 1997. If not so
approved by said date, this contract shall terminate.
[Text here has been manually crossed out]
5. APPRAISAL PROVISION. (Check only one box.) This Section 5 [X] shall [ ]
shall not apply.
If this Section 5 applies, as indicated above, 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's lender . The
contract shall terminate by the Buyer causing the Seller to receive written
notice of termination and a copy of such appraisal or written notice from lender
which confirms the Property's valuation is less than the purchase price, on or
before February 20, 1997 , (Appraisal Deadline). If Seller does not receive such
written notice of termination on or before the appraisal deadline, Buyer waives
any right to terminate under this section.
6. COST OF APPRAISAL. Cost of any appraisal to be obtained after to date of this
contract shall be timely paid by Buyer.
7. ASSIGNABLE. This contract shall be assignable by Buyer without Seller's prior
written consent. This contract shall inure to the benefit of and be binding upon
the heirs, personal represenatives, successors and assigns of the parties.
8. EVIDENCE OF TITLE. Seller shall furnish to Buyer, at Seller's expense, a
current commitment for owner's title insurance policy in an amount equal to the
purchase price on or before January 27, 1997 (Title Deadline). Buyer may require
of Seller that copies of instruments (or abstracts of instruments) listed in the
schedule of exceptions (Exceptions) in the title insurance commitment also be
furnished to Buyer at Seller's Expense. This requirement shall pertain only to
instruments shown of record in the office of the clerk and recorder of the
designated county or counties. The title insurance commitment, together with any
[The printed portions of this form, except (italicized) (differentiated)
additions, have been approved by the Colorado Real Estate Commission
(CBS2-9-95)]
copies or abstracts of instruments furnished pursuant to this Section 8,
constitute the title documents (Title Documents). Buyer, or Buyer's designee,
must request Seller , in writing, to furnish copies or abstracts of instruments
listed in the schedule of exceptions no later than 7 calendar days after Title
Deadline. Seller will pay the premium at closing and have the title insurance
policy delivered to Buyer as soon as practicable after closing.
9. TITLE.
(a) TITLE REVIEW. Buyer shall have the right to inspect the Title
Documents. 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 7 calendar days after
Title Deadline, or with in five (5) calendar days after receipt by Buyer of any
Title Document(s) or endorsement(s) adding new Exceptions(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 the Title Deadline set forth in Section 8, true copies of all
lease(s) and survey(s) in Seller's possession pertaining to the Property and
shall disclose to Buyer all easements, liens or other title matters not shown by
the public records of which Seller has actual knowledge. Buyer shall have the
right to inspect the Property to determine if any third party(s) has any right
in the Property not shown by the public records (such as an unrecorded easement,
unrecorded lease, or boundary line discrepancy). Written notice of any
unsatisfactory condition(s) disclosed by Seller or revealed by such inspection
shall be signed by or on behalf of Buyer and givern to Seller on or before
January 27, 1997. 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 with in a special taxing district and
Buyer desires to terminate this contract as a result, if written notice is given
to Seller on or before the date set forth in subsection 9(b), this contract
shall then terminate. If Seller does not receive Buyer's notice by the date
specified above, Buyer accepts the effect of the Property's inclusion in such
special taxing district(s) and waives the right to so terminate.
(d) RlGHT TO CURE. If Seller receives notice of unmerchantability of title
or any other unsatisfadory title condition(s) as provided in subsection (a) or
(b) above, Seller shall use reasonable effort to correct said unsatisfactory
title condition(s) prior to the date of closing. If Seller fails to correct said
unsatisfactory title condition(s) on or before the date of closing this contract
shall then terminate; provided, however,Buyer may, by written notice received by
Seller on or before closing, waive objection to said unsatisfactory title
condition(s).
10. INSPECTION. Buyer or any designee, shall have the right to have inspecton(s)
of the physical condition of the Property and Inclusions, at Buyer's expense. If
written notice of any unsatisfactory condition, signed by or on behalf of Buyer,
is not received by Seller on or before February 20, 1997 (Objection Deadline),
the physical condition of the Property and Inclusions shall be deemed to be
satisfactory to Buyer. If such notice is received by Seller as set forth above,
and if Buyer and Seller have not agreed, in writing, to a settlement thereof on
[The printed portions of this form, except (italicized) (differentiated)
additions, have been approved by the Colorado Real Estate Commission
(CBS2-9-95)]
or before February 24, 1997 (Resolution Deadline), this contract shall terminate
three calendar days following the Resolution Deadline; unless, within tne three
calendar days, Seller receives written notice from Buyer waiving objection to
any unsatisfactory condition. Buyer is responsible for and shall pay for any
damage which occurs to tbe Property and Inclusions as a result of such
inspection.
11. DATE OF CLOSING. The date of closing shall be February 28, 1997, or by
mutual agreement at an earlier date. The hour and place of closing shall be as
designated by Midtown Real Properties.
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 General Warrantv deed to
Buyer, on closing, conveying the Property free and clear of all taxes except the
general taxes for the year of closing, and except Denver Wa s te Water Tax .
Title shall be conveyed free and clear of all liens for special improvements
installed as of the date of Buyer's signature hereon, whether assessed or not;
except (i) distribution utility easements (including cable TV), (ii) those
matters reflected by the Title Documents accepted by Buyer in accordance with
subsection 9(a), (iii) those rights, if any, of third parties in the Property
not shown by the public records in accordance with subsection 9(b),(iv)
inclusion of the Property within any special taxing district, and (v)subject to
building and zoning regulations.
13. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid
at or before closing from the proceeds of this transaction or from any other
source.
14. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shall pay, in Good
Funds, their respective closing costs and all other items required to be paid at
closing except as otherwise provided herein. Buyer and Seller shall sign and
complete all customary or required documents at or before closing. Fees for real
estate closing services shall not exceed $ 300 and shall be paid at closing by
1/2 Buyer and 1/2 Seller . The local transfer tax of O %of the purchase price
shall be paid at closing by N /A . Any sales and use tax that may accrue because
of this transaction shall be paid when due by -----------.
15. PRORATIONS. General taxes for the year of closing, based on the taxes for
the calendar year immediately preceding closing, rents, water and sewer charges,
owner's association dues, and interest on continuing loan(s), if any, and None
Other shall be prorated to date of closing.
16. POSSESSION. Possession of the Property shall be delivered to Buyer as
follows: Upon Deliverv Of Deed subject to the following lease(s) or tenancy(s):
10 year, NNN lease from seller to buver detailed in Paragragh 21. If Seller,
after closing, fails to deliver possession on the date herein specified, Seller
shall be subject to eviction and shall be additionally liable to Buyer for
payment of $1,000.00 per day from the date of agreed possession until possession
is delivered.
17. CONDITION OF AND DAMAGE TO PROPERTY. Except as otherwise provided in this
contract, the Property and Inclusions shall be delivered in the condition
existing as of the date of this contract, ordinary wear and tear excepted. In
the event the Property shall be damaged by fire or other casualty prior to time
of closing, in an amount of not more than ten percent of the total purchase
price, Seller shall be obligated to repair the same before the date of closing.
In the event such damage is not repaired within said time or if the damages
exceed such sum, this contract may be terminated at tbe option of Buyer. Should
Buyer elect to carry out this contract despite such damage, Buyer shall be
entitled to credit for all the insurance proceeds resulting from such damage to
the Property and Inclusions, not exceeding, however, the total purchase price.
Should any Inclusion(s) or service(s) fail or be damaged between the date of
this contract and the date of closing or the date of possession, which ever
[The printed portions of this form, except (italicized) (differentiated)
additions, have been approved by the Colorado Real Estate Commission
(CBS2-9-95)]
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 end quality, or
an equivalent credit, less any insurance proceeds received by Buyer covering
such repair or replacement.
18. TIME OF ESSENCE/REMEDIES. Time is of the essence hereof. If any note or
check received as earnest money hereunder or any other payment due hereunder is
not paid, honored or tendered when due, or if any other obligation hereunder is
not performed or waived as herein provided, there shall be the following
remedies:
(a) IF BUYER IS IN DEFAULT:
[Check one box only]
[ ] (1) SPECIFlC 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.
[X] (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. Anything to the contrary herein
notwithstanding in the event of any arbitration or litigation arising out of
this contract, the arbitrator or court shall award to the prevailing party all
reasonable costs and expenses, including attorney fees.
19. EARNEST MONEY DISPUTE. Notwithstanding any termination of this contract,
Buyer and Seller agree that, in the event of any controversy regarding the
earnest money and things of value held by broker or closing agent, unless mutual
written instructions are received by the holder of the earnest money and things
of value, broker or closing agent shall not be required to take any action but
may await any proceeding, or at broker's or closing agent's option and sole
discretion, may interplead all parties and deposit any moneys or things of value
into a court of competent jurisdiction and shall recover court costs and
reasonable attorney fees.
20. ALTERNATIVE DISPUTE RESOLUTION: MEDIATION. If a dispute arises relating to
this contract, and is not resolved, the parties and broker(s) involved in such
dispute (Disputants) shall first proceed in good faith to submit the matter to
mediation. The Disputants will jointly appoint an acceptable mediator and will
share equally in the cost of such mediation. In the event the entire dispute is
not resolved within thirty (30) calendar days from the date written notice
requesting mediation is sent by one Disputant to the other(s), the mediation,
unless otherwise agreed, shall terminate. This section shall not alter any date
in this contract, unless otherwise agreed.
21. ADDITIONAL PROVISlONS (The language of these additional provisions has not
been approved by the Colorado Real Estate Commission).
Re Paragraph 3a: The remaining balance, 80,000.00, of the purchase price,
shall be paid to Seller at closing in the form of Preferred Stock. The
[The printed portions of this form, except (italicized) (differentiated)
additions, have been approved by the Colorado Real Estate Commission
(CBS2-9-95)]
Seller portion of preferred stock shall receive a periodic payment equal to
9% per annum, (interest only), on the face amount of the preferred stock.
Said preferred stock shall be "cumulative".
Re Paragraph 16: The above mentioned lease shall be for a term of ten
years, "NNN", inclusive of all interior, exterior, & shell maintenance to a
workmanlike standard and at the direction of the Landlord; and at a rental
rate of $4,500.00 per month. This lease shall be prepared for signature at
closing.
22. RECOMMENDATION OF LEGAL 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.
23. TERMINATION. In the event this contract is terminated, all payments and
things of value received hereunder shall be returned and the parties shall be
relieved of all obligations hereunder, subject to Section 19.
24. SELLING COMPANY BROKER RELATIONSHIP. The selling broker, Keller Williams
Realty, LLC, and its salespersons have been engaged as Buyer's Aqents. Selling
Company has previously disclosed in writing to the Buyer that different
relationships are available which include buyer ageny, seller agency,
subagency,or transaction broker.
25. NOTICE TO BUYER. Any notice to Buyer shall be effective when received by
Buyer, or, if this box is checked [ ] when received by Selling Company.
26. NOTICE TO SELLER. Any notice to Seller shall be effective when received by
Seller or Listing Company.
27. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the
terms of this contract shall be valid, binding upon the parties, or enforceable
unless made in writing and signed by the parties.
28. ENTIRE AGREEMENT. This contract constitutes the entire contract between the
parties relating to the subject hereof, and any prior agreements pertaining
thereto, whether oral or written, have been merged and integrated into this
contract.
29. NOTlCE 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 such acceptance on or before
January 20, 1997 (Acceptance Deadline). If accepted, this document shall become
a contract between Seller and Buyer. A copy of this document may be executed by
each party, separately, and when each party has executed a copy thereof, such
copies taken together shall be deemed to be a full and complete contract between
the parties.
/s/ David J. Clamage
- ------------------------------------------- ----------------------------------
Buyer Commercial Acquisitions Corp. Buyer David J. Clamage, Chairman
Date of Buyer's signature Januarv 16, 1997 Date of Buyer's signature 01-16-97
Buyer's Address 1614 15th Street, 2nd Floor
- ------------------------------------------- ----------------------------------
Seller Richard W. Metcalfe, D.D.S., M.S. Seller
Date of Seller's signature Attached Addendums
Seller's Address 1325 East 16th Avenue
- --------------------------------------------------------------------------------
The undersigned Broker(s) acknowledges receipt of the earnest money deposit
specified in Section 3, and Selling Company confims its Broker Relationship as
set forth in Section 24.
Selling Company Keller Williams Realty Address 3200 Cherry Creek South Drive
By: /s/ Danny Shwayder Date January 16, 1997
------------------------------------
Danny Shwayder
Listing Company Midtown Real Properties Address 1723 Clarkson Street
By: /s/ Jack Kadelecek Date January 21, 1997
------------------------------------
Jack Kadelecek
/s/ David J. Clamage 01-16-97
- ---------------------------------------- --------------------------------------
Buyer Commercial Acquisitions Corp. Date Buyer David J. Clamage, Chairman Date
- ---------------------------------------------
Seller Richard W. Metcalfe, D.D.S., M.S. Date
21. ADDITIONAL PROVISIONS (continued) The language of these additional
provisions has not been approved by the Colorado Reale Estate Commission).
Concerning the property known as:
1325 East 16th Avenue Denver, CO 80218
N/A as Appears in this contract shall mean "Not Applicable".
Attached Addendum shall become a part of this contract
Provided that the insurance is competitive in coverage and cost, purchaser
will insure property with Talty Insurance. Talty may require some form of
payment other than Seller escrow.
This addendum has not been approved by the Colorado Real Estate Commission. It
was prepared by legal counsel for use by Keller Williams Realty, LLC.
Addendum
This document is an addendum to the Commercial Contract to Buy and Sell Real
Estate. The Contract dated January 16, 1997 by and between Richard W. Matcalfe,
D.D.S., M.S. as seller and Commercial Acquisitions Corporation and/or assigns as
purchaser, relating to that certain Real Property located at: 1325 E. 16th Ave.
Denver CO 80218.
In the event of any conflict between the terms of the printed portion of the
contract and the terms of this addendum the provisions of this addendum shall
control.
The following terms and conditions are added to and incorporated into the above
referenced Contract;
1. Inspection Contingency After receipt of items B, C, D, E,& F listed below,
Purchaser shall have 30 business days (the Objection Deadline) to review and
approve the following:
A. Physical inspection of the property, including all improvements
thereon:
B. All rental agreement, leases, service contracts, and all other written
contracts or agreements which affect the property.
C. Operations statements of the property for the last 36 calendar months
prior to the date hereof, including rent roll to determine the
currency of each tenants' rent payments.
D. All architectural renderings, blueprints and surveys recorded and
unrecorded, that are in seller's possession or available to seller.
E. Copies of all insurance policies currently in effect.
F. Inventory of all personal property owned by seller located on the
property and used in the management, operation, or maintenance of the
property.
Seller shall use its best efforts to provide Purchaser with said items B through
F or access to such items within 5 business days after the mutual execution of
this contract. Purchaser shall acknowledge, in writing, receipt of said items.
Delivery of such items to the agent shall constitute delivery to the purchaser.
Unless Purchaser removes all contingencies in writing on or before the Objection
Deadline; or if Purchaser gives notice to Seller if unsatisfactory conditions,
and if Buyer and Seller have not agreed in writing to a settlement thereof on or
before 5 days from the Objection Deadline (the Resolution Deadline), this
contract shall terminate three calendar days following the Resolution Deadline;
unless, within three calendar days, Seller receives written notice from
Purchaser waiving objection to all unsatisfactory conditions. If at that time
this contract is terminated, then the earnest money shall be returned to
Purchaser and Purchaser and Seller shall be excused from any further performance
under this agreement.
2. REMOVAL OF CONTINGENCIES Upon removal of all contingencies in writing by
Purchaser, however, in no event sooner than 45 days from the date of this
contract, the Five Thousand Dollar earnest money note shall be redeemed for cash
and deposited into an interest bearing escrow account with Title Company of
Listing Brokers choice and be non refundable to the Purchaser absent of default
by Seller and shall be considered, in the event of Purchaser default, as
liquidated damages. Any interest earned on the deposit monies prior to closing,
shall belong to the Party entitled to the principal amount of the earned money
deposit if the Purchaser has not defaulted.
3. PROPERTY MAINTENANCE Seller warrants that he will maintain the property in
the same approximate condition that the property is in at the time of acceptance
of this contract and will not allow any substantial deterioration therefrom.
4. SURVEY Immediately following the waiver of contingencies Seller shall cause
the existing Improvement Location Certificate for the subject property to be
updated at Seller's expense, by a surveyor duly licensed by the State of
Colorado and delivered to Purchaser, or if no Improvement Location Certificate
exists, one will be prepared and delivered to Purchaser at Seller's expense.
5. ENVIRONMENTAL AUDIT The Seller acknowledges that (he/she/it) may be
responsible for conditions existing on the property prior to the closing and
prior to the conveyance of title to the Purchaser. The Purchaser acknowledges
that Keller Williams Realty, LLC has recommended and by this instrument does
recommend that the Purchaser obtain an Environmental Audit of the property by a
qualified company or entity before the removal of contingencies by the Purchaser
as herein provided.
6. BROKER DISCLAIMER [Responsibilities of Purchaser} The Broker has no means of
determining with any degree of accuracy, the operational history of the
Property. The Broker disclaims any representations made by any party of the
value of the Property, the probable operational costs of the Property, income to
be derived from the Property, if any; the status of the title of the Property,
the value of the Property, the tax consequences of the transaction to either
Purchaser or Seller, the zoning and use of the Property, or other items which
may effect the decision of either Purchaser of Seller to execute this contract
or to consummate the transaction contemplated by this agreement. Purchaser and
Seller Specifically agree to make their own physical inspection and examination
of the Property, make their own determination of the operational expenses of
the Property the legal and tax consequences of the transaction contemplated by
this agreement and any other determination which Purchaser or Seller might
determine necessary or prudent to a decision relating to the purchase or sale of
the Property. It is expressly understood by Purchaser that Keller Williams
Realty, LLC has not made any investigation or determination, other than
specifically expressed herein, with respect to the legality of the present,
contemplated or future uses of the Property; violations of any federal, state,
county, or municipal ordinances, statutes, zoning, tract restrictions, or
set-back ordinances; planned or proposed federal, state, county, or municipal
government or any other governmental agency plans for use of the property for
public or private purposes, the presence of lead-based paint; or the presence or
absence of fungi or wood destroying organisms; any circumstances or conditions
which a qualified Environmental Audit might disclose; or the correctness of
income and expense information, existence and text of leases, options or
party-wall agreements, if any, and Purchaser agrees that such investigation and
determination will be his sole responsibility and Keller Williams Realty, LLC
shall not be held responsible therefore.
7. RESPONSIBILITIES All parties acknowledge that they have not relied upon any
statements or representations made by the Real Estate agents concerning the
environmental, legal, tax, or financial consequences of this transaction. the
agents have recommended tat Seller and Purchaser obtain legal, tax, and
accounting advice from their respective attorneys and accountants and all
parties hereby agree not to hold its agents responsible or liable as to the
legal, tax, or financial consequences of this transaction.
Keller Williams Realty, LLC advises and recommends that all parties hereto
obtain legal counsel to represent them in connection with examination of title ,
the execution of this contract, and all other aspects relative to the
transaction contemplated hereby.
8. COMMISSIONS Seller hereby agrees that it shall pay a 7% commission to Midtown
Real Properties and Keller Williams Realty, LLC in cash or certified funds at
closing in connection with this transaction. Said commission shall be split
50%-50% between Midtown Real Properties and Keller Williams Really, LLC.
9. PURCHASER'S ENTRY ON THE PROPERTY From and after the mutual execution of this
contract, Purchaser and its agents or designees may enter upon the property for
the purpose of making surveys and soil tests or otherwise inspecting and
investigating the property. Purchaser hereby agrees to indemnify and hold the
Seller harmless from any claims of any type and nature, including mechanics lien
claims which may be filed against the Property by reason of the performance of
any such acts and Purchaser will restore the property to the condition which
existed prior to the entry of the Purchaser on the Property.
10. NEXT BUSINESS DAY In the event any date described herein for payment or
performance of the provisions hereof, falls on a Saturday, Sunday, or legal
holiday, the time for such payment or performance shall be extended to the next
business day.
11. SURVIVAL Agreements, representations, covenants and warranties contained in
this agreement and any amendment or supplement hereto shall survive the closing
and delivery of deed hereunder and shall not be merged thereby.
12. REPRESENTATIONS AND WARRANTIES Seller hereby represents and warrants that as
of the date hereof, to the best of his, her, its, personal knowledge without
duty of further inquiry:
A. There is no litigation pending or threatened which in any manner
affects the property.
B. Seller has not received any notice of and has no other knowledge or
information of any pending or contemplated change in any applicable
law, ordinance, or restriction; or of any threatened or pending
judicial or administrative action; or any action threatened by
adjacent landowners which could result in any material change in the
condition of the property.
C. To the best of Sellers personal knowledge, there are no violations of
any Federal, State, or local law, code, ordinance, rule, regulation or
the requirement of any fire underwriters, board of fire underwriters
or board exercising similar functions.
D. To the best of Sellers personal knowledge, the property is currently
zoned so as to allow the existing use thereof.
E. Seller has the full right power, and authority to perform its
obligations hereunder.
F. Seller personally is aware of no condition affecting the soil or
subsurface portion of the property which could cause damage to or
impair the use of the property or any improvements constructed
thereon. The terms "personal knowledge" as used herein shall mean the
actual knowledge of an individual or the actual knowledge of a
President, General Partner, or Manager of an entity other than an
individual.
The representations and warranties herein stated shall be true on the date of
closing.
13. AGENCY RELATIONSHIP The Purchaser and Seller acknowledge that Keller
Williams Realty, LLC and its employees and agents are acting as Buyer Broker in
this transaction. Purchaser and Seller acknowledge timely verbal and written
disclosure of said agency relationship. Seller further acknowledges that two Of
Commercial Acquisitions Corporation's officers and directors, David J.Clamage
and Kenneth R. Shwayder, are licensed by the Colorado Real Estate Commission.
Additionally, both Mr. Clamage and Mr. Ken Shwayder are officers and directors
of Commercial Acquisitions Corporation. Ken Shwayder & Danny Shwayder are father
and son and are cousins of Mr. Clamage. Mister's Shwayder will put one percent
of the Co-op fee into the same CAC preferred stock that seller is receiving as a
part of the purchase price hereof.
14. LEASES & SECURITY DEPOSITS At the time of closing, Seller shall provide the
Purchaser with a complete accounting for all security deposits made by tenants
occupying any part of the Property as Of that date, which accounting shall
reflect any deductions that Seller has made against any Deposits. The security
deposits and any interest accruing thereon shall be paid to or credited on the
settlement statement to Purchaser at closing and Purchaser will indemnify Seller
from any claims arising from wrongfully retaining or miss application of such
security deposits after they are in the possession of the Purchaser.
15. 1031 EXCHANGE COOPERATION Seller and Purchaser may complete an IRS 1031
Exchange at closing of this property. Both parties agree to cooperate with the
other party and the facilitator regarding any 1031 Exchange.
16. LEGAL ACTION If this Commercial Contract to Buy and Sell Real Estate gives
rise to any legal action or proceeding between Seller and Purchaser, or any
Broker, the prevailing party shall be entitled to recover actual costs and
reasonable attorney's fees in addition to any other relief to which such party,
may be entitled. The provisions of this paragraph shall inure to the benefit of
the parties, and their successors and assigns including the Brokers named herein
who seek to enforce a right hereunder.
Acceptance
The terms and conditions of this addendum as set forth hereinabove, are added to
and fully incorporated into the heretofore referenced Commercial Contract to Buy
and Sell Real Estate.
Agreed and Accepted: Purchaser
By /s/ David J. Clamage Date 01-16-97
---------------------------- ---------
Commercial Acquisitions Corporation, David J. Clamage, Chairman
Broker: Keller Williams Realty, LLC
By /s/ Danny Shwayder Date 1/16/97
---------------------------- --------
Ken and Danny Shwayder, Agents
Broker: Midtown Real Properties
By /s/ Jack Kadelecek Date 1/21/97
---------------------------- -------------
Jack Kadelecek
Agreed and Accepted: Seller
By Date
---------------------------- -------------
Richard W. Metcalfe D.D.S., M.S.
The Language contained in this addendum had been approved by legal counsel for
Keller Williams Realty, LLC.
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL
AND TAX OR OTHER COUNSEL BEFORE SIGNING
COUNTERPROPOSAL
January 21, 1997
RE: Proposed contact to buy and sell the following described real estate in the
County of Denver, Colorado, to wit:
Lots 16-19 Inc, Block 27, Park Avenue Addition, County of Denver, State of
Colorado
known as No. 1325 East 16th Avenue Denver CO 80218
Street Address City State Zip
dated January 16, 1997 between
Richard W. Metcalfe, D.D.S., M.S.
Seller, and
Commercial Acquisitions Corporation and/or Assigns
Buyer.
The undersigned accepts the proposed contract, subject to the following
amendments.
1. Promissory note shall be converted to cash on Contract acceptance.
2. Paragraph 16. Possession as reads $1,000.00 per day shall be changed to
$200.00 per day.
3. Addendum Provision #2 shall be deleted.
4. Addendum Provisions 4 & 5 shall be changed to reflect "at Buyer's expense".
5. Add to Additional Provisions: "This contract shall be specifically contingent
on further negotiations and agreement between Buyer and Seller regarding
permanent financing of the purchase by January 28, 1997. Such agreement shall be
contained in an amendment to this contract.
6. It is agreed that Lots 14 and 15, Block 27, Park Avenue Addition, City and
County of Denver are excluded from this Contract.
7) Subject to title commitment verifying legal description.
8) Subject to purchasers review of last three year ending financial statements
and federal income tax returns of seller and tenant.
All other terms and conditions shall remain the same. This counterproposal
shall expire unless accepted in writing by Buyer and Seller as evidence by their
signatures below and the offering party to this document receives notice of such
acceptance on or before January 23, 1997. If accepted, the proposed contract, as
amended hereby, shall become a contract between Seller and Buyer.
SELLER /s/ Richard W. Metcalfe DATE 1/21/97
------------------------------------------------
Richard W. Metcalfe, D.D.S. M.S.
Commercial Acquisitions Corporation and/or Assigns
BUYER /s/ David J. Clamage DATE 1/22/97
-----------------------------------------------
By: David J. Clamage, Chairman
NOTE When this counterproposal form is used, the proposed contract is not to be
signed by the Party initiating this counterproposal. This counterproposal must
be securely attached to said proposed contract.