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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 30, 1996
DELTA HOLDING, INC.
(Exact name of registrant as specified in its charter)
Washington
(State or other jurisdiction of incorporation)
0-24010
(Commission File Number)
91-1420744
(IRS Employer Identification No.)
258 SW 43rd Street, Suite A, Renton, WA 98055
(Address of principal executive offices) (Zip Code)
(206) 251-9192
(Registrant's telephone number, including area code)
None
(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 30, 1996, Delta Holding, Inc., a Washington corporation (the
"Company"), closed the sale of two of its properties in Colorado Springs held
for sale - the Rockledge Apartments (the "Rockledge") and the Carmel Apartments
(the "Carmel"). The Rockledge was sold for an all cash purchase price of
$4,800,000 and the gain on the transaction was $2,192,000. The Carmel was sold
for an all cash purchase price of $1,450,000 and the gain on the transaction
was $569,000. Both properties were sold to FowlerShore & Flanagan, an entity
unaffiliated with the Company (the "Buyer").
The consideration for the sale of the Rockledge and the Carmel was
determined in arm's-length negotiations between the Company and the Buyer.
The form of Commercial Contract to Buy and Sell Real Estate entered into in
connection with the sale of the Rockledge and the Carmel is filed as an exhibit
to this report and is incorporated herein by reference. The foregoing
description is qualified in its entirety by reference to the full text of the
Commercial Contract to Buy and Sell Real Estate.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit Number Description
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2.1 Form of Commercial Contract to Buy and Sell Real Estate
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DELTA HOLDING, INC.
By: TERRY L. SWITZER
-----------------------------------
Terry L. Switzer
Vice President, Finance and
Operations
Dated: September 16, 1996
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The following form of Commerical Contract to Buy and Sell Real Estate (the
"Contract") is the form entered into in connection with the sale of the Carmel
and Rockledge Apartments as described in the Company's Form 8-K to which this
Contract is an exhibit. Subtantially the same form of Contract was entered into
in connection with the sale of the two properties except for the terms set forth
below:
I. Carmel Apartments
A. Property description in Section 1 of the Contract:
Lots 1 to 6 inclusive, Block 1, all Block 3, Pikes Peak Park
Subdivision 10, City of Colorado Springs, State of Colorado
Known as: Carmel Apartments, 2010 Carmel Drive
Colorado Springs, Colorado 80910
B. Purchase price set forth in Section 3 of the Contract: $1,450,000 of
which $25,000 is earnest money and the balance is $1,425,000.
C. Down payment set forth in Section 1 of Addendum A to the Contract:
$362,500.
D. Financed amount set forth in Section 2 of Addendum A to the Contract:
$1,087,500. Financing was provided by a third party.
II. Rockledge Apartments
A. Property description in Section 1 of the Contract:
Lots 2 to 6 inclusive, Block 3, Prospect Place
Subdivision No. 3, City of Colorado Springs, State of Colorado
Known as: Rockledge Apartments, 2505 Verde Drive
Colorado Springs, Colorado 80910
B. Purchase price set forth in Section 3 of the Contract: $4,800,000 of
which $48,000 is earnest money and the balance is $4,752,000.
C. Down payment set forth in Section 1 of Addendum A to the Contract:
$1,200,000.
D. Financed amount set forth in Section 2 of Addendum A to the Contract:
$3,600,000. Financing was provided by a third party.
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COMMERCIAL CONTRACT
TO BUY AND SELL REAL ESTATE
March 15, 1996
1. PARTIES AND PROPERTY. FowlerShore & Flanagan or Affiliates, buyer(s)
(Buyer), as joint tenants/tenants in common) agrees to buy, and the undersigned
seller(s) (Seller), agrees to sell, on the terms and conditions set forth in
this contract, the following described real estate in the County of El Paso,
Colorado to wit:
-------------------------
-------------------------
known as No. ________________________, 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 (collectively 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,
storm doors, window and porch shades, awnings, blinds, screens, curtain rods,
drapery rods, all keys, and (c) any items used in the operation of the property.
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 $__________,
payable in U.S. dollars by Buyer as follows: (Complete the applicable terms
below.)
(a) EARNEST MONEY. $_______ in the form of cash or check, as earnest
money deposit and part payment of the purchase price, payable to and held by
Chicago Title Company of Denver, broker, in its trust account 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.
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The balance of $________ (purchase price less earnest money) shall be paid as
follows:
(b) CASH AT CLOSING. See Addendum "A".
4. [OMITTED].
5. APPRAISAL PROVISION. (Check one box only.) This Section 5 shall
XX shall not apply.
If this Section 5 applies, as indicated above, Buyer shall have the right
to terminate this contract if the purchase price exceeds the Property's
valuation determined by as appraiser engaged by [N/A]. If Seller receives a
copy of such appraisal of written notice from lender which confirms the
Property's valuation is less than the purchase price, on or before [N/A].
(Appraisal Deadline), this contract shall terminate. Buyer shall have the
privilege and option of proceeding with consummation of this contract without
regard to the amount of the appraised valuation. Upon closing, Buyer waives
any objection to the Property's valuation.
6. COST OF APPRAISAL. Cost of any appraisal to be obtained after the
date of this contract shall be timely paid by Buyer.
7. [omitted]
8. EVIDENCE OF TITLE. Seller shall furnish to Buyer, at Seller's
expense, either a current commitment for owner's title insurance policy in an
amount equal to the purchase price or at Seller's choice, an abstract of title
certified to a current date, on or before [See Addendum "A"] (Title Deadline).
If a title insurance commitment is furnished, 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 requirements 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 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 (see Addendum "A") calendar
days after Title Deadline. If Seller furnishes a title insurance commitment,
Seller will pay the premium at closing and have the title insurance policy
delivered to Buyer as soon as practicable after closing.
9. TITLE
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(a) TITLE REVIEW. Buyer shall have the right to inspect the Title
Documents or abstract. Written notice by Buyer of unmerchantability of title or
of any other unsatisfactory title condition shown by the Title Documents or
abstract shall be signed by or on behalf of Buyer and given to Seller on or
before (see Addendum "A") calendar days after Title Deadline, 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 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 given to Seller on or before (see
Addendum "A"). 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 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
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of the Property's inclusion in such special taxing district(s) and waives the
right to so terminate.
(d) RIGHT TO CARE. If Seller receives notice of unmerchantability of
title or any other unsatisfactory 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
inspection(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 (see Addendum "A")
(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 or before ____________, 19__ (Resolution Deadline),
this contract shall terminate three calendar days following the Resolution
Deadline; unless, within the 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 the Property and
Inclusions as a result of such inspection.
11. DATE OF CLOSING. The date of closing shall be within 15 days of loan
commitment, or by mutual agreement at an earlier date. The hour and place of
closing shall be as designated by mutual agreement of Buyer and 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 general warranty
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 [None]. 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 leases or tenants 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.
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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 at 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 $1,000 and shall be paid
at closing by Buyer and Seller equally. The local transfer tax, if any, of the
purchase price shall be paid at closing by Seller. Any sales and use tax that
may accrue because of this transaction shall be paid when due by Seller.
15. PRORATIONS. General taxes for the year of closing, based on the uses
for the calendar year immediately preceding closing, rents, water and sewer
charges, owner's association dues, and increase on continuing loan(s), if any,
and other similar items as customary shall be prorated to date of closing.
16. POSSESSION. Possession of the Property shall be delivered to Buyer as
follows: Date of closing, subject to the following lease(s) or tenancy(s):
Those in existence at closing.
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 the 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, 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, 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
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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) 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.
XX (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 taken 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 monies or things
of value into a court of competent jurisdiction and shall recover court costs
and reasonable attorney fees.
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20. ALTERNATIVE DISPUTE RESOLUTION MEDIATION. If a dispute arises between
the parties relating to this contract, the parties agree to submit the dispute
to mediation. The parties will jointly appoint an acceptable mediator and will
share equally in the cost of such mediator. If mediation proves unsuccessful,
the parties may then proceed with such other means of dispute resolution as they
so choose.
21. [Omitted]
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, Marcus &
Millichap Incorporated of Denver, and its salespersons have been engaged as Dual
Agents. Selling Company has previously disclosed in writing to the Buyer that
different relationships are available which include buyer agency, 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 modifications 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. 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 such acceptance on or before
March 25, 1996 (Acceptance Deadline). If accepted this document shall become a
contract between Seller and Buyer. A copy of this document may be
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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.
FowlerShore & Flanagan
DARLA FLANAGAN
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Buyer: Darla Flanagan Buyer:
Date of Buyer's signature March 15, 1996 Date of Buyer's signature
, 19
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Buyer's Address: Delta Financial Services
1 Harbor Drive, Suite 200
Sausalito, CA 94965
TERRY L. SWITZER
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Seller: Terry L. Switzer Seller:
Date of Seller's signature March 25, 1996 Date of Seller's signature
, 19
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Seller's Address: P.O. Box 58665
Renton, WA 98058
The undersigned Broker(s) acknowledges receipt of the earnest money deposit
specified in Section 3, and Selling Company confirms its Broker Relationship as
set forth in Section 24.
Selling Company: Marcus & Millichap Incorporated of Denver
650 South Cherry Street, Suite 115
Denver, CO 80222
By: KEVIN P. HIGGINS March 15 , 1996
-----------------------------------
Signature: Kevin P. Higgins Date
Listing Company: Marcus & Millichap Incorporated of Denver
650 South Cherry Street, Suite 115
Denver, CO 80222
By: WILLIAM E. KEEBLER DAVID P. POTARF March 8, 1996
---------------------------------------------
Signature: William E. Keebler David P. Potarf Date
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ADDENDUM "A"
This document is an Addendum to the Commercial Contract to Buy and Sell
Real Estate dated March 15, 1996, by and between Delta Financial Services, as
Seller, and FowlerShore & Flanagan and Affiliates, as Purchaser, relating to
that certain real property located at 2505 Verde Drive, Colorado Springs,
Colorado.
The following terms and conditions are added to and fully incorporated into
the above referenced Commercial Contract to Buy and Sell Real Estate, to wit:
1. DOWN PAYMENT. The down payment shall be _________________ Dollars
($_________) cash, including any deposits.
2. FINANCING. Purchaser shall use Purchaser's best efforts, at
Purchaser's expense, to obtain a new First Loan in an amount not less than
_____________ Dollars ($_______), with terms described as follows: at market
rates.
Said loan shall be secured by a new First Deed of Trust on the property.
If Purchaser fails to notify Seller in writing within ninety (90) days following
mutual execution of the purchase contract that Purchaser has obtained such a
loan, then this contract shall be rendered null and void and the entire deposit
shall be returned to Purchaser.
3. CONTINGENCIES. Purchaser shall have thirty (30) days after
Purchaser's receipt of items B through I listed below to review and approve the
following:
(a) Physical inspection of the property (interior and exterior), including
all improvements thereon.
(b) All leases, rental agreements and service contracts relating to the
property.
(c) An operating statement of the property for the past thirty-six (36)
months, if available.
(d) Preliminary Title Report relating to the property, with all exhibits.
(e) Certified Rent Roll.
(f) Copies of recent tax bills, utility bills.
(g) Phase I Environmental report, if available.
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(h) List of personal property.
(i) Certificate of Occupancy or letter from City stating none exits.
4. REMOVAL OF CONTINGENCIES. Purchaser shall remove contingencies in
writing, delivered to Seller or Seller's agent by 5:00 P.M. on appropriate date,
or the purchase contract shall be considered null and void and the initial
deposit shall be returned to the Purchaser.
5. BROKER DISCLAIMER. Seller and Purchaser expressly acknowledge that
Marcus & Millichap has not made any investigation or determination other than
expressly stated herein with respect to any of the following:
(a) The validity of the present or any possible use of the property under
any federal, state, or municipal law.
(b) Any pending or possible future governmental action affecting the
property.
(c) The physical condition of the property, including but not limited to
the soil condition of the property, the structural integrity of the
improvements, and the presence or absence of fungi or wood-destroying organisms.
(d) The accuracy or completeness of income and expense information and the
projections, and the texts of leases, options, and other agreements affecting
the property.
(e) The possibility that leases, options, party wall agreements or similar
documents exist which have not been provided or disclosed by Seller to Marcus &
Millichap.
(f) The actual dimensions of any leaseable space, building dimensions,
common areas, or land area.
6. TENANTS' SECURITY DEPOSITS. On the date of closing, the Seller shall
notify the tenants who then occupy any portion of the property stating that the
Seller's interest in the property will terminate by virtue of the sale of the
property as of the date of closing and that all security deposits made by each
of the tenants will be transferred to the Purchaser and giving the name and
address of the said Purchaser.
At the time of closing, Seller shall furnish evidence of the notices
herein-above referenced to be given and also shall render to the Purchaser a
complete accounting of
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all security deposits. At the time of closing the Seller shall transfer to the
Purchaser all security deposits.
7. FINANCIAL DATA. Seller agrees to furnish and make available to
Purchaser true and correct copies of all financial data and rent statements
concerning the property and all leases affecting the property. Seller agrees to
hold Broker harmless from any and all liability, damages, causes of action, and
any other claims arising from or asserted in connection with any incorrect or
inaccurate information supplied by Seller or any information which Seller has
failed to supply.
8. TITLE. Seller represents and warrants to Purchaser that marketable
fee simple title to the property is fully vested in Seller, that Seller is duly
authorized and empowered (either in Seller's individual capacity or on behalf of
others) to execute this Commercial Contract to Buy and Sell Real Estate, and
that execution hereof will not result in any breach of, or constitute a default
under any contract or other agreement to which Seller is a party.
9. ARBITRATION. If a controversy arises with respect to the subject
matter of this agreement or the transaction contemplated herein (including but
not limited to rights to any deposit paid pursuant to this agreement or the
payment of commissions as provided for herein), Purchaser, Seller, and Agent
agree that such controversy shall be settled by final, binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction hereof.
10. USE OF COUNSEL. Marcus & Millichap advises and recommends that all
parties to this contract retain legal counsel and tax counsel to advise them in
connection with the contemplated sale of the property.
11. SURVEY. Seller shall provide at Seller's expense a current land title
boundary and improvement survey certified to Purchaser, with permanent corner
pins in place, prepared from an on the ground inspection by a land surveyor
registered in the State of Colorado, its property dimensions, and any and all
improvements, fence locations, easements, rights-of-way, and adjacent roadways,
on and/or to the property. The survey shall certify the accuracy of the legal
description and the legal description set forth in the survey shall be identical
to that contained in the title insurance commitment and trust deed to be
delivered by Seller, said certified survey to be provided to Purchaser after
waiver of contingencies. Said survey shall be delivered to Purchaser at least
ten (10) days prior to date Buyer must remove Title contingencies.
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12. SELLER EXCHANGE CLAUSE. Seller shall have the right (provided Seller
has notified Purchaser in writing at least 10 days prior to closing) to
designate a parcel (or parcels) of other real property (hereinafter called the
"Exchange Property") which Seller would like to acquire in exchange for the
Property. Purchaser shall cooperate with Seller in effecting an exchange as so
designated by Seller, provided that:
(a) The acquisition and exchange of the designated Exchange Property by
Purchaser shall not impose upon Purchaser any additional financial obligations.
(b) Purchaser shall have no obligation to close on the Exchange Property
other than contemporaneously with the closing, provided for herein.
(c) Seller agrees to indemnify and hold Purchaser harmless of and from any
and all liabilities, claims, losses, or actions to which Purchaser might be
exposed as a result of Purchaser's involvement with the contemplated exchange.
In the event any planned exchange as contemplated by the terms of this Agreement
should fail to be consummated, for whatever reason, the same shall not affect
the terms of this Agreement, and Purchaser shall have the right to consummate
the sale provided for herein, as otherwise provided, including specifically the
right to enforce specific performance hereof.
13. PURCHASER EXCHANGE CLAUSE. Purchaser may, at Purchaser's option,
trade one or more properties for the Property with a third party purchasing
those properties from Seller provided, however, that said exchange shall not
impose upon Seller any additional liability and/or financial obligations. This
shall in no way reduce the net amounts which Seller would have received if the
transaction would have been closed as otherwise provided for herein.
Notwithstanding the above, Seller agrees to cooperate to secure a tax-free
exchange if Purchaser decides it is advantageous to exchange one or more
properties. The Agreement is not, however, subject to or contingent upon
Purchaser's exchanging property.
14. ENTIRE AGREEMENT. The Commercial Contract to Buy and Sell Real Estate
(including this Addendum) expresses the entire agreement of Seller and
Purchaser. There are no other understandings, oral or written, which in any
manner alter or enlarge its terms. This contract supersedes any and all
agreements between the parties hereto regarding the property which are prior in
time to this contract. Seller and Purchaser agree to execute such additional
documents as may be reasonable and necessary to carry out the provisions of this
contract.
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<PAGE>
ACCEPTANCE. Seller and Purchaser agree that the terms and conditions set
forth in this Addendum are added to and fully incorporated in the heretofore
referenced Commercial Contract to Buy and Sell Real Estate between Seller and
Purchaser.
SELLER: ADDRESS:
Delta Financial Services P. O. Box 58665
By: TERRY L. SWITZER Renton, Washington 98058
--------------------------
Terry L. Switz Phone: (206) 251-9192
Date: 3/25/96 Fax: (206) 251-9394
----------------------
PURCHASER: ADDRESS:
FowlerShore & Flanagan One Harbor Drive, Suite 200
By: DARLA FLANAGAN Sausalito, California 94965
--------------------------
Darla Flanagan Phone: (415) 332-8900
Date: March 15, 1996 Fax: (415) 332-8992
----------------------
BROKER: ADDRESS:
Marcus & Millichap Incorporated 650 South Cherry Street
of Denver Suite 115
By: KEVIN P. HIGGINS
-------------------------
Kevin P. Higgins Denver, Colorado 80222
Date: 3/18/96 Phone: (303) 320-1300
----------------------
By: WILLIAM E. KEEBLER
-------------------------
William E. Keebler
Date: 3/18/96
-------------------------
By: DAVID P. POTARF
-------------------------
David P. Potarf
Date: 3/18/96
-------------------------
IF THERE IS ANY CONFLICTING LANGUAGE BETWEEN THIS ADDENDUM "A" AND THE
PREPRINTED PORTION OF THE PURCHASE CONTRACT, THEN THIS ADDENDUM "a" SHALL
SUPERSEDE THE LANGUAGE IN THE PREPRINTED COMMERCIAL CONTRACT TO BUY AND SELL
REAL ESTATE.
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