HomeMy WebLinkAbout991944.tiff •
RESOLUTION
RE: THE BOARD OF EQUALIZATION, 1999, WELD COUNTY, COLORADO - DENY
PETITIONER'S APPEAL AND AFFIRM ASSESSOR'S VALUE
PETITION OF:
CHRONOPOL INC
CIO GOLDEN TECHNOLOGIES CO INC
P O BOX 1369
GOLDEN, CO 80402
DESCRIPTION OF PROPERTY: ACCOUNT#: P1262298 PARCEL#: 105909000016-21472
PT N2 9-4-67 SITUS: 8714 60 HWY COLORADO
WHEREAS, the Board of County Commissioners of Weld County, Colorado, convened as
the Board of Equalization for the purpose of adjusting, equalizing, raising or lowering the
assessment and valuation of real and personal property within Weld County, fixed and made by
the County Assessor for the year 1999, and
WHEREAS, said petition has been heard before the County Assessor and due Notice of
Determination thereon has been given to the taxpayer(s), and
WHEREAS, the taxpayer(s) presented a petition of appeal of the County Assessor's
valuation for the year 1999, claiming that the property described in such petition was assessed too
high, as more specifically stated in said petition, and
WHEREAS, said petitioner being represented by Darden Coors, and
WHEREAS,the Board has made its findings on the evidence,testimony and remonstrances
and is now fully informed.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, acting as the Weld County Board of Equalization, that the evidence presented at the
hearing clearly supported the value placed upon the Petitioner's property, after review by the Weld
County Assessor. Such evidence indicated the value was reasonable, equitable, and derived
according to the methodologies, percentages, figures and formulas dictated to the Weld County
Assessor by law. The assessment and valuation of the Weld County Assessor shall be, and
hereby is, affirmed as follows:
ACTUAL VALUE
AS DETERMINED
BY ASSESSOR
Land $ 0
Improvements OR
Personal Property 2,268,188
TOTAL ACTUAL VALUE $ 2,268,188
991944
�I ' f%, � AS0043
,, i •
RE: BOE - CHRONOPOL INC
Page 2
BE IT FURTHER RESOLVED that a denial of a petition, in whole or in part, by the Board of
Equalization may be appealed by selecting one of the following three options; however, said appeal
must be filed within 30 days of the denial:
1. Board of Assessment Appeals: You have the right to appeal the County
Board of Equalization's(CBOE's)decision to the Board of Assessment Appeals
(BAA). Such hearing is the final hearing at which testimony, exhibits, or any
other evidence may be introduced. If the decision of the BAA is further
appealed to the Court of Appeals, only the record created at the BAA hearing
shall be the basis for the Court's decision. No new evidence can be introduced
at the Court of Appeals. (Section 39-8-108(10), CRS)
Appeals to the BAA must be made on forms furnished by the BAA, and
should be mailed or delivered within thirty (30) days of denial by the
CBOE to:
Board of Assessment Appeals
1313 Sherman Street, Room 523
Denver, CO 80203
Phone: 866-5880
OR
2. District Court: You have the right to appeal the CBOE's decision to the District
Court of the county wherein your property is located. New testimony, exhibits
or any other evidence may be introduced at the District Court hearing. For filing
requirements, please contact your attorney or the Clerk of the District Court.
Further appeal of the District Courts decision is made to the Court of Appeals
for a review of the record. (Section 39-8-108(1), CRS)
OR
3. Binding Arbitration: You have the right to submit your case to arbitration. If
you choose this option the arbitrator's decision is final and your right to appeal
your current valuation ends. (Section 39-8-108.5, CRS)
Selecting the Arbitrator: In order to pursue arbitration, you must notify the
CBOE of your intent. You and the CBOE select an arbitrator from the official list
of qualified people. If you cannot agree on an arbitrator,the District Court of the
county in which the property is located will make the selection.
Arbitration Hearing Procedure: Arbitration hearings are held within sixty days
from the date the arbitrator is selected. Both you and the CBOE are entitled to
participate. The hearings are informal. The arbitrator has the authority to issue
subpoenas for witnesses, books, records, documents and other evidence. He
also has the power to administer oaths, and all questions of law and fact shall
be determined by him.
991944
AS0043
RE: BOE - CHRONOPOL INC
Page 3
The arbitration hearing may be confidential and closed to the public, upon
mutual agreement. The arbitrator's written decision must be delivered to both
parties personally or by registered mail within ten (10) days of the hearing.
Such decision is final and not subject to review.
Fees and Expenses: The arbitrator's fees and expenses are agreed upon by
you and the CBOE. In the case of residential real property, such fees and
expenses cannot exceed$150.00 per case. The arbitrator's fees and expenses,
not including counsel fees, are to be paid as provided in the decision.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 4th day of August, A.D., 1999.
BOARD OF COUNTY COMMISSIONERS
�ptMs�� ,/1teit D COUNTY C LO DO
Dale K. Hall, Chair
rd o ,riai
�=oard
` EXCUSED
Barba a J. Kirkmeyer, Pro-Tern
De Ana i �the Board
Geor E. xter
APPROVED AS TO FORM:
l/l / /�/G�ei e
AS nt Co ty orney Aim
Glenn Vaad
991944
AS0043
JUL. -23' 99 )FRI ) 13:26 GHRONOPOL/GTG TEL:303 271 7174 P. 006
NOTICE OF DENIAL OFFICE OF COUNTY ASSESSOR
1400REELEY C17th AVE.
21472 PT N2 9-4-67 SITUS: 8714 60 GREELEY,CA 80631
HWY COLORADO PHONE(910)353.3845.EXT.3650
11`P€
COLORADO OWNER: CHRONOPOL INC
CHRONOPOL INC LOG 3064
C/O GOLD, TECHNOLOGIES CO INC PARCEL 10590900001E
P 0 9OX 1369 ACCOUNT P1262298
GOLDEN, CO 80402 YEAR- 1999
07/15/1999
The appraised value of property is based on the appropriate consideration of the approaches to value required by law. The Assessor has determined that
your property should be included in the following category(ies):
If your concern is the amount of your property tax,local taxing authorities(county,city,Ere protection,and other special districts)hold budget
hearings in the fall. Please refer to your tax bill or ask your Assessor for a listing of these districts,and plan to attend these budget hearings.
The Assessor has carefully studied all available information,giving particular attention to the specifics included on your protest,and has determined the
valuations)assigned to your property. The reasons for this determination of value arc:
NO CHANGE HAS BEEN MADE TO THE VALUATION OF THIS PROPERTY. COLORADO LAW REQUIRES
US TO SEND THIS NOTICE OF DENIAL FOR ALL PROPERTIES ON WHICH WE DO NOT ADJUST THE
VALUE.
•
PETITIONER'S ASSESSOR'S VALUATION
PROPERTY CLASSIFICATION ESTIMATE
OF VALUE ACTUAL VALUE ACTUAL VALUE
PRIOR TO REVIEW AFTER REVIEW
LAND 0 0
IMPS 2268188 2268100
TOTALS S S 2260108 $ 2266198
Tf you disagree with the Assessor's decision,you have the right to appeal to the County Hoard of Equalization for further consideration,39-8-
%06(1)(e),C3lS Please see the back of this form for detailed information en filing your alineal.
By: Stanley V. Sundone 07/15/1999
WELD COUNTY ASSESSOR DATE
15-UPT-AR
Fo.m FR-207-81/99 ADDITIONAL INFORMATION ON REVERSE SIDE
JUL. -23' 99 (FRI ) 13 : 26 GHRONOPOL/GTC TEL: 303 271 7174 P. 007
YOU HAVE TEE RIGHT TO APPEAL THE ASSESSOR'S DECISION
The County Board of Equalization will sit to hear appeals beginning July 1 and continuing through August 5 forreal
property(land and buildings) and personal property(furnishings,p machinery, and equipment)39-8-104 and 39-8-
107(2), C.R_S.
APPEAL PRpCEDURES: •
If you choose to appeal the Assessor's decision, you must appeal to the County Board of Equalization. To preserve
our right to appeal,your appeal must be POSTMARKED OR DELIVERED ON OR BEFORE JULY 15 FOR
PROPERTY, AND JULY 20 FOR PERSONAL PROPERTY.
WELD COUNTY BOARD OF EQUALIZATION
915 10th Street, P.O. Box 758
Greeley, Colorado 80632
Telephone (970)3564000 Ext. 4225
lSOTIFTATION OF BEARING:
You will be notified of the time and place set for the hearing of your appeal.
COUNTY BOARD OF EQUALIZATION'S DETERMINATION:
The County Board of Equalization must make a decision on your appeal and mail you a determination within five
business days of that decision. The County Board must conclude their hearings by August 5.
TAXPAYER RIGHTS FOR FURTHER APPEALS:
If you are not satisfied with the County Board of Equalization's decision you must file within thirty days of the
County Board of Equalization's written decision with ONE of the following:
Board of Assessment Appeals (DAM:
Contact the BAA at 1313 Sherman,Room 315, Denver, Colorado 80203, (303)866-5880.
District Court:
9th Avenue and 9th Street, P.O. Box C
Greeley, Colorado 80632
Telephone (970) 356-4000, Ext. 4520
WELD COUNTY Arbitration:
OARD OF EQUALIZATION
915 10th Street, P.O. Box 758
Greeley, Colorado 80632
Telephone(970) 356-4000,Ext. 4225
If you do not receive a determination from the County Board of Equalization,you must file an appeal with the Board
of Assessment Appeals by September 10.
TO PRESERVE YOUR APPEAL RIGHTS,YOU MUST PROVE YOU HAVE FILED A TIMELY
APPEAL; THEREFORE,WE RECOMMEND ALL CORRESPONDENCE BE MAILED WITH PROOF
OF MAILING.
PETITION TO THE COUNTY-BOARD OF-EQUALIZATION
En the space below, please explain why you disagree with the Assessor's valuation. IN ACCORDANCE WITH 39-
8-106. C.R.S., YOU MUST STATE YOUR OPINION OF VALUE IN TERMS OF A SPECIFIC DOLLAR
AMOUNT. Attach additional documents as necessary.
u !�
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ionn4 464-1- - Pk"p&ti/`'i u'a1,t„t U, .041,),'41.met 417 L�-i cwac.
t1� ,.-ct udv-4 (Ma1 21iLQVk2 41-t er°pt^it S Uaina_ in f� l ODO d G 1C-bed G+ uGvmev
( 'pub 25 , lggai
REAL PROPERTY TRAMPER DECLARATION
CENERAL1NPOFMAIION
Input The nal property race tant sprovide* 'idrmsim to the ran assessorto help rare hind emcee arssnruts to al pmpmq
for property tax reposes. Rata to C.R9.139.14-102(4).
Regdnartss Al.anveyree do mcata (deeds) subject to he doermarey fee raised kr he eery chit ad rveorde. for recarrion amt be
accompanied by a nal property transfer declarer°. This dccbntla m atbe oongkied and algal by the gram(sree)agree(bayed. Ida to C.R.9.
g 3944102(1)0).
Pesky for Neaceapllays Whrever a Mal north saute deoWstlau doss sot ararpmy he deed,he rat ad nearer milks he ray assessor,
who will mad a acts.to he buyer requerdq ha he destinies be near wilds thirty dye die the amles I.mailed.
lithe real property dnhntloo i sot Mussed to he sonny anessorwihin he 30 days of rim,to_-ss y Spur a perky d$25 a.025%(.00223)
at he sule price,whichever S grader. This peaky may be imposed der way arrest thin ha buyer fails to Mak he deelaradoo ante he property. .
is sold. Refry to CAS.139-l4-102(1)00.
Corldastlally The ssrssa is required to make he nal properly lathy debut available hr Spectra to he buyer. However,k i only maihble to
he sea if the mess filed he dssta sale. lofamsis rived ha the nal property under deebo nes is seMis to any taxpayer a ay met of ask
taxpayer,subject to omfldedatlg rethdreaets as prodded by kw. C.R.g.N 394.1213 and 39434 20)(o).
1. Address or legal description of the real property sold: Pleas do act err P.O.ba
mercer.
• See Exhibit "A" attached hereto
2. Type of property purchased: (I Single Pushily Raided(1 Tarrant I]Cares Mrs t 1 MukI-Unk its
(1 Commend (1 Wrenn (1 Agricultural (J Used Ur (]Vacant led (J Ohl
3. Date of closings
February 1, 1999
4. Total sale prices iehdig di rest and pentad prepay.
$1,300,000
/
5. Was any personal property included in the transaction? rmaalpnpergwoudlaiae,
it is not limited to carpeting,Japes,coca-ending apps,squipmet,kvsu3,fmuia If he personal property is sot listed,he eels
purchase prise will be assumed to be for the real property a per 13943-102,C.R.g.
Yes [ ] No If yet, approximate value: $'5 04 ,
rDescribe /fnasC6 �Jfrus ame4ga.n*+a1 Cal
6. Did total sale price include a /trade or exchange of additional real or
personal property? lire,give the approximate rue of the goods a mnkne as of ht date d oiosig.
[ ] Yes [x] No If yes, value $
If yes, does this transaction involve a trade under IRS Code Section 1031?
[ ] Yes [ ] No
7. Was 100% interest in the real property purchased? Mast'so'if atly a psstlai Infest i brig
purchased.
[x] Yes [ ] No If no, interest purchased %
8 . Is this a transaction among related parties? adineeeskers.the buyer or sear an related. Related
parts include persons within the same family,burr affiliates,runnier corpations.
[ ] Yes [x] No
9. Check any of the following that apply to the condition of the improvements
at the time of purchase.
[ ] New [ ] Excellent [ ] Good [ ] Average fin Fair
[ ] .Poor [ ] Salvage �' •
IF THE PROPERTY IS FINANCED, PLEASE COMPLETE THE FOLLOWING:
10. Total asount financed: $ + O
11. Type of financing (check all that apply):
C ] New [ ] Assumed [ ] Seller [ ] Third Party
[ ] Combination: Explain
12. Terms:
[ ] Variable: Starting interest rate
[ ] Fixed: Interest rate
Length of time: years
Balloon payment: [ ] Yes [ ] No
Amount $ Due date
13 . Please explain any special terms, seller concessions, or financing and any
other information that would help the understand the terms of
sale.
FOR PROPERTIES OTHER THAN RESIDENTIAL (RESIDENTIAL IS DEFINED AS
SINGLE-FAMILY DETACHED, TOWNHOMES, AND CONDOMINIUMS) , PLEASE
COMPLETE QUESTIONS 14-16 IF APPLICABLE. OTHERWISE,. SKIP TO
QUESTION 17 TO COMPLETE.
14. Did the purchase price include a franchise or license fee?
[ ] Yes C No
If yes, f anchise or license fee value .$
15. Did the purchase price involve an installment land contract?
[ ] Yes [x] No If yes, date of contract
16. If this was a vacant land sale, was an on-site inspection of the property
conducted by the buyer prior to the closing? [ ] Yes [ ] No
REMARKS (please include sly additional inform/aytion concerning the sale you may
feel is important) : "�y /uC ,ce 2 d ex!' ei Jt Ve
17. SIGNED this 1st dill of February, 1999. Stereedq.mma.andyw bnertbw:meadmpudw
m ee:nnaaeaon sign ae daammt ae:ka de m adder ad a dgame ptme meatier. Please designate buyer or
seller. ntot-nognatur&ofGrantee (BuZt1Ex
Mailing Address and Daytime Telephone
P.O. Box 628
Johnstown, CO 80534
2
EXHIBIT "A"
The N1/2 of Section 9, Township 4 North, Range 67 West of the 6th P.M., Weld County,
Colorado, EXCEPTING THEREPRCM the following described tracts of land.
1) That part thereof platted as Johnstown Colony;
2) That part thereof platted as Purvis Addition to the Town of Johnstown;
3) A strip of land 80 feet in width through, over and across the NW1/4 of said Section 9,
being 40 feet on each side of the centerline of the Great Western Railway as surveyed and
located, said centerline being described as follows:
Beginning at a point on the North line of said Section 9 which is 1036.3 feet East of the
NW corner: thence S35°43' East, a distance of 51 feet to a point of curve to the right
• whose radius is 1910.1 feet: thence on said curve to the right for a distance of 1190.5
feet to a' point of tangent; thence S05.00' East on said tangent, a distance of 1551 feet
to the South line of said NW1/4 at a point 1618.5 feet East of the W1/4 corner of said
Section 9 (variation 15' East), which strip of land was heretofore conveyed by Deed from
Engelbert Sauter to The Northern Construction Company, a Colorado Corporation, which Deed
is dated January 30, 1905, and recorded in the office of the Clerk and Recorder of Weld
County, State of Colorado, in Book 73 at Page 283;
4) A triangular piece of land situated in the NW1/4 of said Section 9, which is described
as follows:
Beginning at a point on the North line of said Section 9 which is 1090 feet East of the NW
corner; thence East on Section line, a distance of 660 feet; thence curving to the
Southwest and to the left with a radius of 455.3 feet for a distance of 660 feet; thence
northerly 40 feet East of and parallel to the centerline of the Great Western Railway for
a distance of 610 feet, more or less, to the North line of said Section 9 and the place of
beginning, which piece of land was heretofore conveyed by Deed from William A. Purvis and
Caroline Sauter to The Great Western Railway Company, a Colorado Corporation, by
correction deed dated April 2, 1917, and recorded in the office of the Clerk and Recorder
of Weld County, State of Colorado, in Book 414 at Page 585;
5) A tract or parcel of land, No. 1 of Colorado Department of Highways Project No.
S0053(2) in the N1/2 of the NE1/4 of said Section 9, as conveyed to the Department of
Highways, State of Colorado, by Deed recorded April 23, 1958„in Book. 1501 at Page 274.
said tract or parcel being more particularly described as follows:
Beginning at a point on the East line of said Section 9, from which point the NE corner of
said Section 9 bears NO0.30,30• West, a distance of 100.00 feet: thence along the East
line of said Section 9, NOO'50'30" West, a distance of 100.00 feet to the NE corner of
said Section 9; thence along the North line of said Section 9, N89•15'30" West, a distance
of 1583.50 feet; thence S00.35'30" West, a distance of 100.00 feet; thence S89°15'30"
East, a distance of 1586.00 feet, more or less, to the point of beginning;
6) A tract of land lying in the NE corner of said Section 9 which was conveyed to Public
Service Company of Colorado by Deed recorded January 15, 1987, in Book 1142 as Reception
No. 2084905, said tract of land being more particularly described as follows:
Beginning at the NE corner of said Section 9; thence 530.57'42" West, 115.25 feet to the
• intersection of the southerly right of way of Colorado State Highway No. 60, and the
westerly right of way of Weld County Road 19, and the true point of beginning; thence
along the westerly right of way of said county road, S00.24'44" E, 288.34 feet; thence
N88°11'48" W, 297.21 feet; thence NO1.09'12" E, 284.86 feet, more or less, to the
• southerly right of way of said Colorado State Highway No. 60: thence along said southerly
right of way, S88.50'48' E, 289.31 feet to the true point of beginning.
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that GTC NUTRITION COMPANY,
INC. , a Colorado corporation, ("Seller") , for and in
consideration of Ten Dollars ($10) and other good and valuable
consideration, to it in hand paid, at or before the ensealing or
delivery of these presents by COLORADO SWEET GOLD, LLC, a
Colorado limited liability company, 8714 State Highway 60, P.O.
Box 628, Johnstown, Colorado 80534, of the County of Weld, State
of Colorado ("Purchaser") , the receipt of which is hereby
acknowledged, has bargained and sold, and by these presents does
grant and convey unto the said Purchaser, its successors and
assigns, the following property, goods, and chattels, to wit:
The personal property identified on Schedule 2.1.D to
the Asset Purchase Agreement dated February 1, 1999,
between GTC Nutrition Company, Inc. , as Seller, and
Colorado Sweet Gold, LLC, as Purchaser (the "Asset
Purchase Agreement") ; the personal property
specifically identified on Schedule 2.1.D of the Asset
Purchase Agreement is, by these presents, transferred
without limitation as to all the personal property
herein transferred, which personal property shall also
include all personal property located at 14452 West
44th Avenue, Golden, Colorado, such as, but not limited
to, computers, computer programs, copiers, desks,
chairs, tables, supplies, and all other personal
property used at said location by Seller, and the
personal property shall further include all personal
property located at the Land described in Schedule
2 . 1.A to the Asset Purchase Agreement, such as, but not
limited to, all motors, pumps, supplies, and tools in
the warehouse and other locations on the Land,
computers and computer programs, furniture and office
equipment, supplies, testing equipment, lab equipment
and supplies, tools, spare parts, scales, telephones
and other communication equipment, heating and air
conditioning equipment attached and unattached to the
Real Property Improvements, motors, pumps and supplies
used in conjunction with the water wells, motors, pumps
and supplies used in conjunction with the water
purification and environmental monitoring systems, and
any and all other personal property used in the
operations on the Land and the Leased Premises; EXCEPT
the personal property set forth on Schedule 2 .1.D(a) to
the Asset Purchase Agreement.
TO HAVE AND TO HOLD the same unto the said Purchaser, its
successors and assigns, forever. The said Seller covenants and
agrees to and with the Purchaser, its successors and assigns, to
WARRANT AND DEFEND the sale of said property, goods, and
chattels, against all and every person or persons whomever. When
used herein, the singular shall include the plural, the plural
the singular, and the use of any gender shall be applicable to
all genders.
IN WITNESS WHEREOF, the Seller has executed this Bill of
Sale this 1st day of February, 1999.
GTC NUTRITION COMPANY, INC. , a
Colorado corporation
BY �Gnc1h../<
affbrnati-1•:--Fn c-
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was subscribed, sworn to, and
acknowledged before me this /O day of February, 1999, by
Da,-b,, H. Aegis as #*Nmr - r.; - r / of GTC Nutrition
Company, Inc. , a Colorado corporation.
Witness my hand and official seal.
My commission expires: .Z'7 /Cy>
� NOTARY 8 No@ ip41.11c
1*1
-
} A PUBLIC a J
s.".• •,;per,.`
.,OF,CO'-V
2
SETTLEMENT STATEMENT
SELLER: GTC Nutrition Company
PURCHASER: Colorado Sweet Gold, LLC
DATE OF CLOSING: February 1, 1999
SETTLEMENT DATE: 12 midnight
January 31, 1999
PROPERTY: All real and personal property, and
contracts and leases as described in the
Asset Purchase Agreement between Seller and
Purchaser dated February 1, 1999.
ITEM PURCHASER SELLER CLOSER
Purchase Price <$1,800,000.00> $1,800,000.00
Title Insurance < 2,704.00> $2,704.00
Recorded:
Warranty Deed < 21.00> 21.00
Documentary Fee < 130.00> 130.00
Special Warranty Deed/
water < 16.00> 16.00
Quit Claim Deed/water < 21.00> 21.00
UCC-1 < 16.00> 16.00
Transfer Fee
Big Thompson _ < 70.00> 70.00
Business Interruption
(S 10.6.B(1) 35,000.00 < 35,000.00>
From Purchaser $1,765,274.00
To Seller $1,762,296.00
To Closer $2,978.00
1. The Purchaser acknowledges that the transfer of personal property
is subject to state and county sales and use tax. Purchaser shall be
responsible to pay such tax and acknowledges that it has not been collected
by closer at closing.
2. Real and personal property taxes have not been prorated at
closing. The Purchaser and Seller acknowledge that the Asset Purchase
Agreement provides for the proration and payment of these taxes.
3. The Purchaser and Seller acknowledge that adjustments of the
purchase price and payment for such things as commodity accounts, prepaid
accounts, and inventory will be done outside of closing as set forth in the
attached closing memorandum, which is made a part of this Settlement
Statement.
4. The Purchaser and Seller have in the attached closing memorandum
set forth other items that must be addressed by the parties after the
closing. This list is to act as a guide and a reminder, but is not
intended to diminish the parties' further assurances. The parties shall
remain at all times reasonable and cooperative in providing, executing and
delivering to the other party instruments reasonably required to consummate
the full intent and performance of the Asset Purchase Agreement.
SELLER: PURCHASER:
GTC NUTRITION COMPANY COLORADO SWEET GOLD, LLC
l�hdA_ K Grr� Oka,�l f„--41u--4-
anemaox.ser li/ArNy -'- '71+c
TECH GIES
July 25, 1999
Ms. Carol Harding
Weld County Board of Equalization
915 10th Street
P.O. Box 758
Greeley, Colorado 80632
Re: Account Nos. P0002857 and P1262298;Parcel No. 105909000016
Chronopol,Inc. and GTC Nutrition Company
Dear Carol:
As we discussed by telephone,we did not receive the Notice of Determination
from Weld County on the above referenced accounts by the appeal deadline. We
did send a letter evidencing our second appeal to the Weld County Assessor's
office to preserve our appeal rights. Enclosed please find copies of Notice of
denials and our petitions to the County Board of Equalization. I apologize that
these are not the originals,but in an effort to save time, I had the originals faxed
to me upon our receipt on Friday,July 23, 1999. We request a hearing with the
County Board of Equalization for these accounts.
Please let me know when the hearings will be scheduled. If you have any
questions,please contact me at (303) 271-7114.
Sincerely,
-Pa/Id
Darden K. Coors,
Counsel
16000 Table Mountain Pkwy.
Golden, Colorado 80403
FAX: 306 )11 1003
303 771 1'`00
APPRAISAL REPORT
OF
PERSONAL PROPERTY
FOR
COUNTY BOARD OF EQUALIZATION
CHRONOPOL INC
PETITIONER
V.S.
WELD COUNTY ASSESSOR'S OFFICE
RESPONDENT
•
SCHEDULE NUMBER:P 1262298
LOG NUMBER: 3064
DATE: AUGUST 4, 1999
TIME: 1:30P
BOARD: CBOE
PREPARED BY
RAELENE ANDERSON
arvivaavo
Signature Date
ASSESSOR'S OFFICE STAFF APPRAISER
ASSESSOR VALUE
$2,268,188
COLORADO SWEET GOLD, LLC
PRUCHASE SUMMARY
FEBRUARY 1, 1999
REFCO RECEIVABLE 36,864.37
WORK IN PROCESS INVENTORY 85,657.20
FINISHED GOODS INVENTORY(STARCH) 36,603.23
FINISHED GOODS INVENTORY (BY-PRODUCT) 26,720.00
SUPPLY INVENTORY 100,000.00-Ft,,„PS mu-SG PARTE:
VEHICLES & OTHER ROLLING STOCK 21,000.00
OFFICE FURNITURE & EQUIPMENT 30,000.00
PLANT BUILDINGS 320,000.00
PLANT MACH & EQUIPMENT 380,019.49 4P1I°id99` $O
LAND &WATER RIGHTS 296,299.20
SUBTOTAL 1,333,163.49
CONTRACT WITH COORS 500,000.00
TOTAL PRUCHASE PRICE 1,833,163.49
CORN INVENTORY 1,198,264.58
BUSINESS INTERUPTION -35,000.00
OVERALL TOTAL 2,996,428.07
PMT AT CLOSING 1,762,296.00
CLOSING COSTS 274.00
TITLE INS 2,704.00
1,765,274.00
ATTORNEY FEES 32,889.49
1,798,163.49
CORN INV PURCHASE 1,198,264.58
2,996,428.07
REAL PROPERTY TRANSFER DECLARATION
GENERAL INFORMATION
Parpo= The real property transfer declntics provides essential informatics to the county assessor to help ensure fair and uniform assesments for all property
for property tax purposes. Refer to C.R.S.{39.14.102(4).
Requirements: All conveyance document. (deeds) subject to the documentary fee submitted to the county clerk and recorder for recordation must be
accompanied by a real property transfer declaration. This declaration must be completed and signed by the grantor(seller)or grantee(buyer). Refer to C.R.S.
9 39-14.102(1)(0.
Penally for Noncompliance: Whenever a reel property transfer declaration does not accompany the deed,the clerk and recorder notifies the county assessor,
who will send a notice to the buyer requesting that the declaration be returned within thirty days after the notice is mailed.
If the real property declaration is not returned to the comity assessor within the 30 days of notice,the assessor may impose a penally of$25 or.025%(.00025)
of the sale price,whichever is greater. This penally may be impeded for any subsequent year that the buyer fails to submit the decoration until the property
is sold. Refer to C.R.S.9 39-14.102(1)(b).
Confidentially: The assessor is required to make the real property transfer declaration available for inspection to the buyer. However,it is only available to
the seller if the seller filed the declaration. Information derived from the real property transfer declaration is available to any taxpayer or any agent of such
taxpayer,subject to confidentiality requirmwh as provided by law. C.R.S.99 39-5-121.5 and 39-13-102(5)(c).
1. Address or legal description of the real property sold: Please do not use P.O.box
numbers.
See Exhibit "A" attached hereto
2. Type of .property purchased: 11 Single Family Reaidenti l f]Tomato=()Condominium[]Multi-Unit Res
[]Commercial []Industrial []Agricultural []Mixed Use []vaunt lend []Other
3. Date of closing:
February 1, 1999
4. Total_sale_.price s Including all ran and personal property.
( $1,3O0, 000 )
5. Was any personal property included in the transaction? Panama property would include,
but is not limited to,carpeting,drapes,free-standing appliances,equipment,inventory,furniture. If the personal property is not listed,the entire
purchase price will be assumed to be for the real property as per
39-13-102,C.R.S.
picD Yes [ 3 No If 1�. tnaireot .lr� se/ Coloximate e $ '501�0CL'!�.
c Describe
r ,
6. Did total sale price include a trade or exchange of additional real or
personal property? If yes,give the approximate value of the goods or services as of the date of closing.
[ ] Yes [x] No If yes, value $
If yes, does this transaction involve a trade under IRS Code Section 1031?
[ ] Yes [ ] No
7. Was 100% interest in the real property purchased? Mane"no"if only a partial interest isbeing
purchased.
[x] Yes [ ] No If no, interest purchased %
8. Is this a transaction among related parties? Indicate whether the buyer or seller are related. Related
parties include persons within the emu family,business affiliates,or affiliated corporations.
•
[ ] Yes [x] No
9. Check any of the following that apply to the condition of the improvements
at the time of purchase.
[ ] New [ ] Excellent [ ] Good [ ] Average pc Fair
[ ] Poor [ ] Salvage
2672117
TRANSFER DECLARATION RECEIVED 02/0S/1999
IF THE PROPERTY IS FINANCED, PLEASE COMPLETE THE FOLLOWING:
10. Total amount financed: $ ^' C
11. Type of financing (check all that apply) :
[ ] New [ ] Assumed [ ] Seller [ ] Third Party
[ ] Combination: Explain
12 . Terms:
[ ] Variable: Starting interest rate
[ ] Fixed: Interest rate
Length of time: years
Balloon payment: [ ] Yes [ ] No
Amount $ Due date
13. Please explain any special terms, seller concessions, or financing and any
other information that would help the assessor understand the terms of
sale.
•
FOR PROPERTIES OTHER THAN RESIDENTIAL (RESIDENTIAL IS DEFINED AS
SINGLE-FAMILY DETACHED, TOWNHOMES, AND CONDOMINIUMS) , PLEASE
COMPLETE QUESTIONS 14-16 IF APPLICABLE. OTHERWISE, SKIP TO
QUESTION 17 TO COMPLETE.
14 . Did the purchase price include a franchise or license fee?
[ ] Yes No
If yes, f anchise or license fee value $
15. Did the purchase price involve an installment land contract?
[ ] Yes [x]. No If yes, date of contract
16. If this was a vacant land sale, was an on-site inspection of the property
conducted by the buyer prior to the closing? [ ] Yes [ ] No
REMARKS (please include alv additional inform tion concerning the sale you may
1�/C
feel is important) : ANCdeCizeolr e,r/e„[Jlr e
/6040/e r*
17. SIGNED this 1st d4 of February, 1999. ear ee a.y,mmm,ma you:6.ve u kau mo of eo putie.
todiewmmWmsigndledammm4mulinaldemmidmunWadarinicOmenumbm Please designate buyer or
seller.
gnature of Grantee (Buyer) [x.
Mailing Address and Daytime Telephone
P.O. Box 628
' Johnstown, CO 80534
2
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that GTC NUTRITION COMPANY,
INC. , a Colorado corporation, ("Seller") , for and in
consideration of Ten Dollars ($10) and other good and valuable
consideration, to it in hand paid, at or before the ensealing or
delivery of these presents by COLORADO SWEET GOLD, LLC, a
Colorado limited liability company, 8714 State Highway 60, P.O.
Box 628, Johnstown, Colorado 80534, of the County of Weld, State
of Colorado ("Purchaser") , the receipt of which is hereby
acknowledged, has bargained and sold, and by these presents does
grant and convey unto the said Purchaser, its successors and
assigns, the following property, goods, and chattels, to wit:
The personal property identified on Schedule 2 . 1.D to
the Asset Purchase Agreement dated February 1, 1999,
between GTC Nutrition Company, Inc. , as Seller, and
Colorado Sweet Gold, LLC, as Purchaser (the "Asset
Purchase Agreement") ; the personal property
specifically identified on Schedule 2. 1.D of the Asset
Purchase Agreement is, by these presents, transferred
without limitation as to all the personal property
herein transferred, which personal property shall also
include all personal property located at 14452 West
44th Avenue, Golden, Colorado, such as, but not limited
to, computers, computer programs, copiers, desks,
chairs, tables, supplies, and all other personal
property used at said location by Seller, and the
personal property shall further include all personal
property located at the Land described in Schedule
2. 1.A to the Asset Purchase Agreement, such as, but not
limited to, all motors, pumps, supplies, and tools in
the warehouse and other locations on the Land,
computers and computer programs, furniture and office
equipment, supplies, testing equipment, lab equipment
and supplies, tools, spare parts, scales, telephones
and other communication equipment, heating and air
conditioning equipment attached and unattached to the
Real Property Improvements, motors, pumps and supplies
used in conjunction with the water wells, motors, pumps
and supplies used in conjunction with the water
purification and environmental monitoring systems, and
any and all other personal property used in the
operations on the Land and the Leased Premises; EXCEPT
the personal property set forth on Schedule 2 . 1.D(a) to
the Asset Purchase Agreement.
TO HAVE AND TO HOLD the same unto the said Purchaser, its
successors and assigns, forever. The said Seller covenants and
agrees to and with the Purchaser, its successors and assigns, to
WARRANT AND DEFEND the sale of said property, goods, and
chattels, against all and every person or persons whomever. When
•
used herein, the singular shall include the plural, the plural
the singular, and the use of any gender shall be applicable to
all genders.
IN WITNESS WHEREOF, the Seller has executed this Bill of
Sale this 1st day of February, 1999.
GTC NUTRITION COMPANY, INC. , a
Colorado corporation
BY r L/4/161",]< (cn,,-
afftrnati -ig--rac(-
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was subscribed, sworn to, and
acknowledged before me this /0- day of February, 1999, by
7an&m H. God as eifbin. - , - Faci of GTC Nutrition
Company, Inc. , a Colorado corporation.
h
Witness my hand and official seal.
My commission expires: .Z./7 /On •
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CHRONOPOL INC ct s „t Qbb
Legal Description _
Year District C1O GOLDEN TECHNOLOGIES CO INC `
P O BOX 1369 121472 PT N2 9-4-67 SITUS:8714 60
1999 0509 GOLDEN CO 80402 HWY COLORADO
Apr Dist -St
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Golden Technologies Company, Inc.
PO. Box 1369
Golden, Colorado 80402 7,r1--- -_r--
L
APR 1 5 1999
WELD COUNTY ASSESSOR
April 13, 1999
Greeley, Colorado
Dear Raelene Anderson,
Attached you will fmd the personal property declaration for schedule P1262298.
As per our conversations,Chronopol was officially shut down in October 1998. The Johnstown
facility has not been operational since June 1998.
On February 1,1999,ACX Technologies(our parent company)sold the Johnstown plant,
including the Chronopol building and equipment to Colorado Sweet Gold,LLC. The agreement with
them,is that we will rent the Chronopol facility and equipment for 5 years at a$1.00 a year. ACX
Technologies is trying to sell the technology and might need access to the equipment. The equipment will
remain in the Chronopol building.
Because this equipment has not been used since June 1998 and is not being used currently,we are
requesting an obsolescence of 90%on this equipment:
Original cost 6,563,182
Less 90% -5,906,864
New cost 656,318
Please continue to send the valuation and property tax statement to our address:
P.O.Box 1369,Golden,Co,80402.
. Colorado Sweet Gold,LLC will do the January 1,2000 declaration. Their address is:
P.O.Box 628,Johnstown,CO, 80534.
Please get back to Cece Schmidt at 271-7130 if you have any questions.
Thank you,
Daniel Garber
Controller
MAIL TO: CONFIDENTIAL ASSESSMENT DATE
WELD COUNTY ASSESSOR PERSONAL PROPERTY JANUARY 1
1400 N.17th AVE GREELEY,CO 80631 DECLARATION SCHEDULE
Phone(970)353-3845 (Confidential Data)
DUE DATE APRIL 15
1999
ASSESSOR'S USE ONLY
Return This Copy , lj
PLEASE READ INSTRUCTIONS ON RECEIVED } )
REVERSE SIDE BEE=PROCEEDING COMPLETED -` I/ t ^' / +
SIGN AND RETURN THIS COPY LATE FILING FEE YES() NO(.)
PIN NUMBER TA CODE BA CODE PARCEL NUMBER
P1262298 0509 30000 105909000016 1 1
A. NAME AND ADDRESS: SHOW CHANGES IN NAME AND ADDRESS
CHRONOPOL INC _' �i , i � � t-or f
l "---17"--1 i .
�� t)
C/O GOLDEN TECHNOLOGIES CO INC }t- . J'IL-lit-4X .ki. l.1.
P 0 BOX 1369 PREVIOUS OWNER'S NAME&ADDRESS
GOLDEN, CO 80402 APR 1 5 1999
PHYSICAL LOCATION OF THE PERSONAL PROPERTY SHOW CH NGES OF PHYSICAL LOCATION:
AS OF JANUARY!ASSESSMENT DATE: WELD COUNTY ASSESSOR
8714 60 HWY WELD Greeley, Colorado
21472 PT N2 9-4-67 SITUS: 8714 60
B.BUSINESS Start-up Date Product or Service Type
C. BUSINESS STATUS(Please check the appropriate boxes ONLY). In accordance with 39-3-119.5,C.R.S.,you are not required to file this declaration if the total actual
value(market value)of your personal property is$2,500 or less. If you are unsure as to the value of your property,contact the county assessor and provide an itemized listing
of the personal property.
❑NEW BUSINESS/ORGANIZATION. You must give a complete itemized listing of all personal property. Use the first part of Section D and attach sheet(s)if needed.
❑EXISTING BUSINESS/ORGANIZATION.Indicate ADDITIONS/DELETIONS to property in Section D.
0 NEW OWNER OF PREVIOUSLY EXISTING BUSINESS/ORGANIZATION. You must give a complete itemized listing of all personal property acquired in the
purchase. Include additions made prior to Jan. 1 since that purchase.
O AS OF JANUARY 1,WERE YOU OUT OF BUSINESS?
0 Personal Property Sold ❑Personal Property Stored Dale Sold/Stored
Name of New Owner of the Personal Property
0 PROPERTY CHANGED LOCATION TO ON(DATE)
**FOR AN ACCURATE ASSESSMENT,WE MUST HAVE A COMPLETE LISTING OF PERSONAL PROPERTY.**
D. LISTING OF PERSONAL PROPERTY: Note:Include ALL Expensed Assets With a Life of Greater Than 1 Year,Fully Depreciated Assets Still in Use, and
Stored Assets Which Have Been Subject to IRS Depreciation. LIST ALL PERSONAL PROPERTY ACQUIRED PRIOR TO JANUARY I. ATTACH SEPARATE SHEET(S)IF NEEDED.
ITEM YEAR COMPLETE DESCRIPTION INCLUDING YOUR INSTALLED FACTOR/ SPECIFY ITEM: MONTH&
I.D. ACQUIRED MODEL OR CAPACITY COST LIFE NEW OR USED YEAR FIRST
PLACED INTO
NO. SERVICE
VVUI J.Y9/ LAS FURN .01/35V 3555.'' 3/10
0002 1993 COMPUTERS '6841' 13/4
0003 1994 COMPUTERS ✓6670 ` 13/4
0004 1996 COMPUTERS ,-'2530A 13/4
0005 1997 COMPUTER SYSTEM 1Y 7,fr" -295698 .v; 13/4
0006 1990 LAB EQUP X2490- 10/10
0007 1992 LAB EQUIP .3 7, I$1 4.826 k! 10/10
0008 1994 LAB EQUIP ic; 31rt' 29258 10/10
0009 1995 LAB EQUIP (34057 39011)'( 10/10
0010 1997 LAB EQUIP 0,-,1045 114421 "\ 10/10
0011 1997 R&D SPECIAL PURPOSE trnaalileT 6401771 / 10/3
` Oe✓ c -aetsLi Car d-o,#.'.
•
IF NO ADDITIONS OR DELETIONS CHECK HERE(_)
THIS RETURN IS SUBJECT TO AUDIT
I. 1 declare under penalty of perjury in the sec d that this schedak,together with any accompanying exhibits or atstcments,has been examined by me and to the beat of my knowledge,Information,end belief sets forth•fall and taanplat.list of
personal property owned by me or in my pos as ,or caned trot,located in this county in Colorado,on the assessment dam of this year;that such prowl,bas been,eaaonably described and its value fairly repre.eatod,and that no attempt Au b
to mislead the assessor auto its age,quality, or
. SIGNATURE OF OWNER OR AGEN 'I���y• 9.�07(2R.S DATE —((I-7/ PHONE(SZ•3) ? r.- 7 1.3 j
PRINT NAME OF PERSON SIGNING Da 4Pi-:i' 77 NAME OF OWNER 4 2 e I.ail/L 6/641..f j+'' S
Mall to CONFIDENTIAL ASSESSMENT DATE
Weld County Assessor BUSINESS PERSONAL PROPERTY JANUARY 1
1400 N 17th Ave Greeley,CO 80631 DECLARATION SCHEDULE
Phone(970)353-3845 Page 2
1999 ASSESSORS USE ONLY
PLEASE READ INSTRUCTION ON RECEIVED
REVERSE SIDE BEJORZ PROCEEDING COMPLETED
SIGN AND RETURN THIS COPY LATE FILING FEE YES()NO()
El i
NAME 4,-, CtrarA0 pal .1.C— el o Co/Ie... Lee 4.0/J 1'fo,A et? j mac'.
MAILING /J
ADDRESS p c;✓.9BX (3 &S 0 U Ale, l....4) y U, -
STREET CITY STATE ZIP CODE
PIN NUMBER TA CODE BA CODE PARCEL NUMBER
p c—cs- 05 i 3ouo0 i C75:c.)5ova0 /47
E.UNLICENSED MOBILE EQUIPMENT Do not list mobile equipment with SMM license plates,rental decals,or z-tabs.
o Check here and complete this section if there is any unlicensed mobile equipment at this location.
T
Item Description Including Model or Capacity Year Acquired Check new or used for each Your Year in Use
ID No. item: Installed Cost
oNew o Used
ONew ❑Used
ONew o Used
ONew O Used
F.GENERAL LEDGER (Original installed corn only)DO NOT USE FISCAL YEAR BALANCES. DO NOT LIST MOBILE EQUIPMENT WITH SMM LICENSE PLATES,RENTAL DECALS,
OR Z-TABS.
1
FURNITURE MACHINERY& CAPITALIZED ELECTRONIC COMPUTERS SIGNS ALL
EQUIPMENT MOBILE EQUIP OFFICE EQUIP OTHER
BALANCE JANUARY I,1998
BALANCE JANUARY 1,1999
G.Cost of expensed and other fully Attach a copy of your latest detailed Depreciation Schedule from your financial records. If you provide Form
depreciated assets still in use. 4562 or 4562-A,you MUST provide an itemized list of all property with description and cost of each item,
$ including all personal property which is expensed.
H.LEASED,LOANED,OR RENTED PROPERTY(FURNITURE,SIGNS,ETC)DECLARE PROPERTY OWNED BY OTHERS
on you possessed any leased,loaned,or rented machinery,equipment,furniture,signs,vending machines,etc.on January 1st.Check here.
List below,showing owner's name,address,and telephone number,property description;etc. If any of the leased equipment listed is capitalized on your books and records,please check the box at
the beginning of the line corresponding with the name of the Lessor.
Owner/Lessor's Name,Address,Tele.No. Description including Model/Serial Cost of Lease Lease number Term(from-to) Annual S
Number Rent
0
o
0
o If purchase or maintenance options are included in the total annual S rent shown above,check here and furnish details.
I. DECLARATION
THIS RETURN IS SUBJECT TO AUDIT
"I declare,under penalty of perjury in the second that this rched togelhar with ally a accomcpnnyinit oahltiu or statonem.,has been esambed by me and to the best or my knowledge.iaarma*lon,and belief,mu forth t
full and eompkte list of as tasaMe peranal pro.. pied by ''p In ,slvn,or wider my control,located In this county in Colorado on tae usosment dote of this year;that,uth property has been reasonaby described
and its valve fairly represented;and that no m been tafdf •dummy as to its ado,quality,quantity,or valor."39.5.10712),C.R.S.
SIGNATURE OF OWNER OR AGENT K/'/•
NAME OF OWNER 4C� (.244k6!/Gc'/10
f1 DATE If - l y" %r
PRINT NAME OF PERSON SIGNING 41St 4 t' 1-l. ./4.-./4.- Olt 6 C et— PHONE NUMBER(3 sa 3) a-I f-7/1 r'
PLEASE COMPLETE,SIGN AND RETURN TO THE ASSESSOR ON OR BEFORE APRIL 15
KEEP ONE COPY FOR YOUR RECORDS
•
CHRONOPOL,INC JOHNSTOWN
PROPERTY TAX
ACQUIRE ACQUIRE
SYSNOO TAG NO DESCRIPTION CLASS DATE VALUE LOCATION
COMPUTERS
398 01455 COMPAQ PROLINEA 486/50 COMPUTER-UPSTAIRS C 03/01/93 3,150.06 JOHNSTOWN
322 01044 COMPAQ DESKPRO 4/661 COMPUTER-LAB JOHNSTOWN C 06/01/93 3,690.54 JOHNSTOWN
6,840.60
524 01454 MCW 486 DX2/66 PENTIUM 100 COMPUTER(DOWNSTAIRS) C 01/01/94 4,220.94 JOHNSTOWN
525 01460 COMPAQ PROLINEA 4/50 COMPUTER-UPSTAIRS C 01/01/94 2,449.16 JOHNSTOWN
6,670.10
348 01305 COMPAQPROLINEA 5100-LAB C 09/01/96 2,529.68 JOHNSTOWN
515 01458-01459 P51000 COMPUTER-UPSTAIRS C 03/01/97 147,848.75 JOHNSTOWN /-
TOTAL COMPUTERS 163,889.13
FURNITURE
412 LAB FURNITURE RD-F 03/01/97 24,550.12 JOHNSTOWN
TOTAL FURNITURE 24,550.12
MACH/EQUIP-LAB.
190 01131 NAPCO VACUUM LAB OVEN/FISHER SCIENTIFIC MODEL 28T RD-L 01/29/90 1,263.61 JOHNSTOWN
191 01140 VACUUM PUMP WELCH DUO SEAL RD-L 01/29/90 1,225.93 JOHNSTOWN
2,489.54 /
199 01054,5943,65,82 LAB EQUIP HEWLETT PACKARD-HP1050 SERIES,HP1047A RD-L 05/18/92 32,908.77 JOHNSTOWN
428 01462B DI WATER SYSTEM,PUMP,BARNSTEAD WATER RD-L 08/31/92 2,259.00 JOHNSTOWN
249 01103 METTLER AE100 BALANCE RD-L 09/07/92 2,021.00 JOHNSTOWN
37,188.77 '
429 01462 RO UNIT REVERSE OSMOSIS UNIT,WASTE WATER RD-L 04/01/94 10,384.15 JOHNSTOWN
149 01201 WASTE CONTAINMENT BLDG RD-L 01/01/95 22,525.23 JOHNSTOWN
278 01338 PUMP MODEL En1-277,LMI SERIES 5 METERING PUMP(PRODUCTION) RD-L 11/07/95 1,915.76 JOHNSTOWN
279 01339 PUMP MODEL E521-277,SERIES 5 METERING PUMP(PRODUCTION) RD-L 11/07/95 1,915.76 JOHNSTOWN
26,356.75 -'
401 01442-1446 HP 1100 AUTOMATED QUATERNARY LC2D SYSTEM RD 03/01/97 27,166.25 JOHNSTOWN
402 01441 HP 1100 THERMOSTATI'ED COLUMN COMPARTMENT RD 03/01/97 2,163.00 JOHNSTOWN
403 01442A HIGH PERFORMANCE LC 2D CHEMSTATION RD 03/01/97 12,617.50 JOHNSTOWN
404 01449 ANALYTICAL BALANCE-AG204T RD 03/01/97 2,605.69 JOHNSTOWN
405 01447 THELCO LAB OVEN RD 03/01/97 1,850.91 JOHNSTOWN
406 01439 THERMOLYNE 4800FURNANCE RD 03/01/97 1,120.64 JOHNSTOWN
408 01451 DMS TITRINO 716/A-5 SYSTEM RD 03/01/97 13,483.66 JOHNSTOWN
409 01448 GLOVE BOX RD 03/01/97 2,884.00 JOHNSTOWN
410 01440 LABCONCOFUMEHOOD RD 03/01/97 3,554.63 JOHNSTOWN
411 01453 REVCO FREEZER RD 03/01/97 1,022.43 JOHNSTOWN
68,468.71 /
TOTAL MACH/EQUIP-LAB 144,887.92
ACQUIRE ACQUIRE
SYS NO TAG NO DESCRIPTION CLASS DATE VALUE LOCATION
MACH/EQUIP-R&D
445 SP910-BACKFLOW PREVENTERS RD 03/01/97 4,753.35 JOHNSTOWN
446 01465 VI001-XYLENE RECOVERY REACTOR RD 03/01/97 51,158.20 JOHNSTOWN
447 01465A A1002-WT REACTOR AGITATOR-TOP OF V1001 RD 03/01/97 14,162.60 JOHNSTOWN
448 01485 P102-XYLENE TRANSFER PUMP RD 03/01/97 8,435.05 JOHNSTOWN
449 01486 P103-LACTIC ACID PUMP-CENTRIFUGAL RD 03/01/97 7,300.57 JOHNSTOWN
450 01466 P1003-XYLENE RECOVERY REACTOR PUMP RD 03/01/97 7,855.92 JOHNSTOWN
451 01463 V1005-XYLENE RECOVERY SEPERATOR(S16-6-1-3 75/36.S) RD 03/01/97 33,001.50 JOHNSTOWN
452 01463A E1004-WT PRODUCT COOLER RD 03/01/97 28,348.86 JOHNSTOWN
453 01503 V1006-VENT KO DRUM RD 03/01/97 12,605.13 JOHNSTOWN
454 01503A E1009-OFF GAS COOLER RD 03/01/97 13,584.75 JOHNSTOWN
455 01487 V1007-RELIEF HEADER KO DRUM RD 03/01/97 54,342.10 JOHNSTOWN
456 01490 V203-REACTIVE DISTILL COLUMN BOTTOM SECTION RD 03/01/97 355,376.63 JOHNSTOWN
457 01490A E201-FEED BOTTOMS EXCHANGER RD 03/01/97 41,820.04 JOHNSTOWN
458 01490B E204-COLUMN REBOILER RD 03/01/97 28,065.63 JOHNSTOWN
459 01490C E205-COLUMN OVERHEAD CONDENSER RD 03/01/97 30,918.62 JOHNSTOWN
460 01490D E202-FEED PREHEATER RD 03/01/97 24,986.42 JOHNSTOWN
461 01494 P205-BOTTOMS PRODUCT PUMP RD 03/01/97 10,525.17 JOHNSTOWN
462 01494A V207-REFLUX DRUM RD 03/01/97 42,877.29 JOHNSTOWN
463 014948 E210-REFLUX HEATER RD 03/01/97 21,861.03 JOHNSTOWN
464 01491 P208-XYLENE REFLUX PUMP RD 03/01/97 11,817.02 JOHNSTOWN
465 01492 P209-WATER PRODUCT PUMP RD 03/01/97 9,075.17 JOHNSTOWN
466 01468 V306-COALESCER#1(516-34-27-3.75/36-PSF) RD 03/01/97 177,536.04 JOHNSTOWN
467 01468A E301-COALESCER COOLER RD 03/01/97 20,424.68 JOHNSTOWN
472 01473 M304-LIGHTNIN MUER RD 03/01/97 21,102.15 JOHNSTOWN
468 01469 P302-FIRST STAGE WATER INJECTION PUMP RD 03/01/97 8,285.78 JOHNSTOWN
469 01470 P303-SECOND STAGE WATER INJECTION PUMP RD 03/01/97 8,285.78 JOHNSTOWN
470 08468B F305A-COALESCER PREFILTER#1 RD 03/01/97 7,301.65 JOHNSTOWN
471 01468C F305B-COALESCERPREFILTER#2 RD 03/01/97 7,301.63 JOHNSTOWN
473 01473A M307-LIGI-ITNINMDUEt RD 03/01/97 21,102.15 JOHNSTOWN
474 01472 V308-COALESCER#2(516-16-7-3.75/36-PSE) RD 03/01/97 84,069.82 JOHNSTOWN
475 01467 V309-PHASE B-1 SURGE TANK RD 03/01/97 19,227.87 JOHNSTOWN
476 01467A A310-PHASE B SURGE TANK AGITATOR RD 03/01/97 12,616.12 JOHNSTOWN
477 01467B P311-SULFURIC ACID FEED PUMP RD 03/01/97 3,186.57 JOHNSTOWN
478 01471 V312-T316L VESSEL RD 03/01/97 11,807.16 JOHNSTOWN
479 01484 V403-HYDROLYSIS REACTOR W/INTERNALS RD 03/01/97 76,047.04 JOHNSTOWN
480 01484A E402-HYDROLYSIS HEATER RD 03/01/97 29,058.70 JOHNSTOWN
482 01477 V801-GROWTH TANK RD 03/01/97 21,106.23 JOHNSTOWN
483 01477A A802-GROWTH TANK AGITATOR-TOP OF V801 RD 03/01/97 12,989.49 JOHNSTOWN
484 01481 E803-MELTOUT HEATER RD 03/01/97 12,486.34 JOHNSTOWN
485 01478 P805-CIRCULATION PUMP RD 03/01/97 10,641.86 JOHNSTOWN
486 01476 V808-CENTRATE TANK RD 03/01/97 42,445.77 JOHNSTOWN
487 01495 U807-CENTRIFUGE WITH M807 RD 03/01/97 130,561.44 JOHNSTOWN
488 01476A A809-CENTRATE TANK AGITATOR-TOP OF V808 RD 03/01/97 19,032.50 JOHNSTOWN
489 01476B E810-BACKWASH HEATER RD 03/01/97 13,313.72 JOHNSTOWN
491 01476D U812-ISOMATIC AIRLOCK RD 03/01/97 11,593.74 JOHNSTOWN
492 01488 T701-SOLVENT STORAGE TANK RD 03/01/97 81,909.20 JOHNSTOWN
493 01483 P702-SOLVENT FEED PUMP RD 03/01/97 7,069.34 JOHNSTOWN
494 01479 5804-CRYSTALLIZER RD 03/01/97 278,819.93 JOHNSTOWN
495 01482 E1905-COOLING TOWER RD 03/01/97 70,633.01 JOHNSTOWN
496 01489 P1906-COOLING TOWER PUMP RD 03/01/97 11,075.84 JOHNSTOWN
497 01489A P1908-COOLING TOWER MAKE-UP PUMP RD 03/01/97 4,399.46 JOHNSTOWN
498 DS 1801-DESUPERHEATER RD 03/01/97 7,344.25 JOHNSTOWN
499 01475 E602-EVAPORATOR RD 03/01/97 1,030,676.50 JOHNSTOWN
500 01504 U1008-CARBON BEAD TREATMENT SYSTEM RD 03/01/97 26,053.30 JOHNSTOWN
501 01504A SP3-FLAME ARRESTER RD 03/01/97 3,822.70 JOHNSTOWN
502 01505 U1907-DI WATER SKID-REVERSE OSMOSIS SYSTEM RD 03/01/97 16,551.73 JOHNSTOWN
513 U912-DIVERTER VALVE RD 03/01/97 5,222.76 JOHNSTOWN
503 U1907-CHILL WATER PKG(PART OF U1905) RD 03/01/97 125,535.37 JOHNSTOWN
504 01474 U501-WATER ABSORPTION SKID RD 03/01/97 538,799.63 JOHNSTOWN
505 01498 U902-DRYER RD 03/01/97 577,544.93 JOHNSTOWN
506 01498A U90I-AIRLOCK RD 03/01/97 34,867.92 JOHNSTOWN
507 01498B U903-AIR LOCK RD 03/01/97 34,867.92 JOHNSTOWN
508 01500 U905-CONVEYOR(PART IS IN STORAGE) RD 03/01/97 22,688.62 JOHNSTOWN
510 U9I9(913)-TABLETOR VACUUM FILTER RD 03/01/97 9,246.50 JOHNSTOWN
511 U910-!SOMATIC AIRLOCK RD 03/01/97 11,593.74 JOHNSTOWN
512 U911-ISOMATIC AIRLOCK RD 03/01/97 20,441.62 JOHNSTOWN
516 MAJOR ELECTRICAL EQUIPMENT RD 03/01/97 105,893.31 JOHNSTOWN
517 TAGGED INSTRUMENTATION&VALVES RD 03/01/97 1,374,070.97 JOHNSTOWN
ACQUIRE ACQUIRE
SYS NO TAG NO DESCRIPTION CLASS DATE VALUE LOCATION
518 BULK MATERIALS RD 03/01/97 185,683.92 JOHNSTOWN
481 01485A 2-VIKING PUMPS(REPLACE P401) RD 07/01/97 14,251.67 JOHNSTOWN
490 - 01476C CENTRATE TANK DISC.PUMP-PRICE 5 STAGE(UPGRADE OF PSI I) RD 07/01/97 13,023.80 JOHNSTOWN
519 STEAM VALUE CORRECTION RD 07/01/97 3,965.48 JOHNSTOWN
520 2 CENTRIFUGE DISCHARGE PUMS-WELDON RD 07/01/97 2,198.48 JOHNSTOWN
521 2 CENTRIFUGE CHUTES BEWEEN CENTRIFUGE&DRYER RD 07/01/97 7,718.31 JOHNSTOWN
522 P401-HYDROLYSIS FEED PUMP(EXTRA) RD 07/01/97 3,638.62 JOHNSTOWN
523 P811-CENTRATE PUMP(EXTRA) RD 07/01/97 5,850.62 JOHNSTOWN
6,229,854.73
TOTAL MACH/EQUIP-R&D 6,229,854.73
GRAND TOTAL 18,563,181.90
r EXHIBIT
a .
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and
entered into this 1st day of February, 1999, by and between
COLORADO SWEET GOLD, LLC, a Colorado limited liability company
("Purchaser") , and GTC NUTRITION COMPANY, a Colorado corporation
("Seller") .
WITNESSETH:
WHEREAS, the definitions attached hereto are incorporated
herein by reference;
WHEREAS, Purchaser and Seller entered into a Letter of
Intent dated November 23, 1998, which Letter of Intent is
superseded in its entirety by this Agreement; and
WHEREAS, the parties now by this Agreement enter into a
definitive agreement as provided in the Letter of Intent with the
intent that this Agreement govern all promises, covenants, and
warranties between the parties as herein provided and as provided
in the Letter of Intent.
NOW, THEREFORE, in consideration of their mutual promises
herein contained, the parties agree as follows:
ARTICLE I
Preamble. The parties agree that the preamble hereinabove
set forth shall be, and the same hereby is, incorporated into and
made a part of this Agreement by reference.
ARTICLE II
2.1. Description of Purchased Assets. Seller shall sell to
Purchaser and Purchaser shall purchase from Seller the following
assets situate in the counties of Jefferson and Weld, state of
Colorado for the purchase price of ONE MILLION EIGHT HUNDRED
THOUSAND DOLLARS ($1,800,000) , which amount may be adjusted up or
down to reflect differences in the amount of finished goods and
work in process at the Land and Leased Premises as of Closing
versus the amount of such items at the Land and Leased Premises
on September 30, 1998:
A. Land. That certain land comprising of
approximately 272 .97 acres, more or less, located in Weld County,
Colorado, as more fully described on Schedule 2. 1.A attached
hereto and incorporated herein by reference (the "Land") . The
Land shall include all easements and rights-of-way and rights to
the same belonging or in any way appertaining to the Land; all
water taps, sewer taps belonging or in any way appertaining to
the Land; all strips and gores of Land lying between the Land and
streets, roads, highways (open or proposed) , railroads,
irrigation ditches, drainage ditches, and rivers and streams; all
estates, rights, titles, interests, privileges, tenements,
hereditaments, and appurtenances of any nature whatsoever, in any
way belonging, relating, or pertaining to the Land; the reversion
or reversions, remainder and remainders, rents, issues, and
profits in any way belonging, relating, or pertaining to the
Land; all pipes, conduits, wires, lines, and other utility
systems and facilities presently installed in, on, under or upon
the land to service any and all improvements thereon; and all
curbs, gutters, sidewalks, streets, roads, and other improvements
presently located on the Land.
B. Water Rights. All water and water rights,
reservoirs and reservoir rights, ditches and ditch rights,
easements for any of such rights appurtenant thereto, and plan
for augmentation as described in Schedule 2.1.B attached hereto
and incorporated herein by reference, and further without
limitation as to the specifics set forth On Schedule 2.1.B, all
appropriated water rights, shares in water, ditch and reservoir
companies, well permits, ditch rights, and easements for the
delivery of water, all rights to water beneficially used on the
Land, whether adjudicated, permitted, or claimed, and all pipes,
conduits, wells, equipment, and apparatuses used to receive,
deliver, apply, and store the water (the "Water") .
C. Buildinas and Improvements. All buildings,
storage facilities, manufacturing facilities, and equipment,
railroads and switching facilities, platform weighing scales,
Water and waste water treatment facilities, water well pumps and
pipes, conduits for electricity, conduits for telephone, and
pipes for oil and gas delivery. Notwithstanding the above-
described improvements, it is the intent and agreement of the
parties that improvements shall include, by way of specific
mention and not by way of limitation, all of the above
improvements situate on the Land and all such other things of any
nature or description attached thereto or located thereon used
for the use and benefit of the manufacturing and other activities
on the Land (the "Buildings and Improvements") , EXCEPT the
excluded Buildings, Improvements, and facilities described on
Schedule 2. 1.C attached hereto and incorporated herein by
reference (the !'Excluded Improvements") .
iiiiiiiihtheer "'I, }r i.q4 .al. !t ' Ik+' 7 tin' aEed
� ti��I t ' (' f K r n r "z. II L, 4 rI I f . ;�{1}x iii of w 'wt. f e
Without limitation as to the specific
personal property set forth on Schedule 2. 1.D, the personal
property shall also include all personal property located at
14452 West 44th Avenue, Golden, Colorado, such as, but not
2
limited to, computers, computer programs, copiers, desks, chairs,
tables, supplies, and all other personal property used at said
location by Seller; and the personal property shall also include
all personal property located at the Land such as, but not
limited to, all motors, pumps, supplies, and tools in the
warehouse and other locations on the Land, computers and computer
programs, furniture and office equipment, supplies, testing
equipment, lab equipment and supplies, tools, spare parts,
scales, telephones and other communication equipment, heating and
air conditioning equipment attached and unattached to the real
property improvements, motors, pumps and supplies used in
conjunction with the water wells, motors, pumps and supplies used
in conjunction with the water purification and environmental
monitoring systems, and any and all other personal property used
in the operations on the Land and the leased premises (the
"Personal Property") , EXCEPT the personal property set forth on
Schedule 2.1.D(a) attached hereto and incorporated herein by
reference (the "Excluded Personal Property") .
E. Plans and Specifications. All plans and
specifications, including surveys, soils tests, and as-built
plans, pertaining to all improvements on the Land, and to the
extent possible all original plans and specifications, and plans
for alterations, additions, and deletions (the "Plans and
Specifications") , EXCEPT the plans and specifications set forth
on Schedule 2. 1.F attached hereto and incorporated herein by
reference (the "Excluded Plans and Specifications") . The Seller
makes no warranties as to the completeness, accuracy,
architectural and engineering integrity, and building code
compliance of any of the Plans and Specifications.
F. Records and Reports. All records and reports for
not less than the five (5) years prior to the closing, including,
but not limited to, materials and supply purchases and
identification of vendor, equipment suppliers and record of
purchases, customer identification and purchases, plant
procedures, manuals, and operating records, testing records,
weight scale records, and such other records and reports as set
forth on Schedule 2.F attached hereto and incorporated herein by
reference (the "Records and Reports") . The Records and Reports
set forth on Schedule 2 .F(a) shall be retained by Seller (the
"Excluded Records and Reports") . Seller agrees to not destroy
any Excluded Records and Reports that are less than seven (7)
years old and to make such Excluded Records and Reports available
at a location in the state of Colorado to Purchaser during
regular business hours for review, inspection, and copying.
Purchaser agrees to not destroy any Records and Reports that are
less than seven (7) years old and to make such Records and
Reports available at a location in the state of Colorado to
Seller during regular business hours for review, inspection, and
copying.
3
G. Leases. All leases pertaining to the operation of
the manufacturing, storage, testing, and other related businesses
at the Land and 14452 West 44th Avenue, Golden, Colorado, which
Seller warrants it has fully disclosed to Purchaser and which are
set forth on Schedule 2.1.G attached hereto and incorporated
herein by reference (the "Leases") . The Leases set forth on
Schedule 2 . 1.G(a) are specifically excluded and the Seller shall
indemnify and hold the Purchaser harmless from any claims,
demands, or suits arising out of or under the terms of said
excluded Leases including, but not limited to, any judgments and
attorney's fees and costs expended in the defense thereof (the
"Excluded Leases") .
H. Operating Agreements. All rights and interest in
and under all agreements, contracts, leases, permits,
authorizations, and instruments pertaining and relating to the
operations on the Land and the Leased Premises including, but not
limited to, manufacturing, processing, sales, farming, storage,
testing, and any and all such other activities conducted on the
Land and the Leased Premises as more specifically identified on
Schedule 2 . 1.I; but not limited thereto (the "Operating
Agreements") . The Operating Agreements set forth on Schedule
2.1.H(a) are specifically excluded and the Seller shall indemnify
and hold the Purchaser harmless from any claims, demands, or
suits arising out of or under the terms of said excluded
Operating Agreements including, but not limited to, any judgments
and attorney's fees and costs expended in the defense thereof
(the "Excluded Operating Agreements") .
I. Commodity Accounts. All the commodity accounts
with REFCO, Inc. , identified under account numbers A418 55390,
A418 55391, A418 55392, A418 55393, A418 55394, A418 55397, A418
55398, and A418 55399 (the "Commodity Accounts") . The Commodity
Accounts shall be updated at time of closing to reflect the
ordinary course of trading and balance at that date.
J. Addresses and Phone Numbers. All addresses for
real property locations transferred to Purchaser and, to the
extent assignable, telephone numbers.
K. Seller's Rights, Title and Interest in al],
Security Deposits. Except as set forth on Schedule 2.1.K, all
security deposits and bonds presently maintained on behalf of the
Seller relative to the operations on the Land and the Leased
Premises, which relate to contracts, leases, agreements, and
other instruments described hereinabove that are being assigned
and assumed by Purchaser at the closing.
L. Prepaid Accounts. All prepaid accounts shall be
paid to Purchaser at date of closing and Purchaser shall warrant
and agree to perform the obligation of Seller to the customer as
set forth on Schedule 2, 1.14 (the "Prepaid Accounts") .
4
M. Work in Process and Finished Goods. All work in
process and finished goods.
N. Air Emission Credits. All air emission credits
related to the Purchased Assets.
0. General Intent. It is the intent and agreement of
the parties that the Purchaser is purchasing from the Seller and
the Seller is selling to the Purchaser the real and personal
property, tangible and intangible, rights, and leases set forth
in subsections A through N of this Article, including, but not
limited to, buildings, manufacturing facilities, storage
facilities, equipment, spare parts, supplies, vehicles and other
rolling stock, furniture, transportation facilities, computers
and computer programs, records, and any and all other real and
personal property, tangible and intangible, associated with and
used in the operations on the Land and the Leased Premises (the
"Purchased Assets") , EXCEPT as specifically excluded in the
schedules of excluded assets set forth above and as further
excluded in Schedule 2.1.0 attached hereto and incorporated
herein by reference (the "Excluded Additional Assets") . Since
the purchase of land, improvements, water, etc. from The Great
Western Sugar Company, a portion of the Purchased Assets have
been owned in part or all by Coors Energy Company, Golden
Technologies Company, Inc. , GTC Nutrition Company, Coors Biotech
Products Company, and possibly other related and affiliated
companies (the "Companies") , it is the intent and the agreement
that the Purchased Assets include all such assets even though
title may be held in the name of any of the Companies. Seller
covenants that it will obtain and provide at the Closing the
appropriate documents from any of the Companies necessary to
transfer title to the Purchased Assets to Purchaser. Further,
the Purchased Assets include all mineral rights and royalties and
reversions owned by Seller or the Companies. Seller warrants and
agrees that it shall cause the right, title and interest in all
Purchased Assets to be properly transferred, assigned, and
conveyed to Purchaser, notwithstanding in which of the Companies
title or beneficial interest is held.
2.2 Inventories. The inventories of raw materials, mostly
corn, are more fully described on Schedule 2.2 attached hereto
and incorporated herein by reference (the "Inventory") . The
Inventory shall be physically inventoried as near the date of
closing as practical and the Inventory updated to reflect the
actual inventory. The Seller shall purchase the Inventory at
closing at the cost or market value at date of purchase,
whichever is lower. The purchase price shall be paid in two
installments with interest at the rate of 7.25% per annum from
date of closing until paid. Purchaser shall pay Seller one-half
the purchase price plus interest on February 28, 1999, and the
balance on March 31, 1999.
5
ARTICLE III .
Purchase Price. At time of closing and delivery of the deed
and other assignments and conveyance instruments of the Purchased
Assets by the Seller to the Purchaser, the Purchaser shall pay to
the Seller in good and immediate funds ONE MILLION EIGHT HUNDRED
THOUSAND U.S. DOLLARS (USD $1,800,000) , which amount may be
adjusted up or down to reflect differences in the amount of
finished goods and work in process at the Land and Leased
Premises as of Closing versus the amount of such items at the
Land and Leased Premises on September 30, 1998 (the "Purchase
Price") . The purchase price for the Inventory shall be paid in
addition to the Purchase Price.
ARTICLE IV
Allocation of Purchase Price. The purchase price shall be
allocated among the Purchased Assets in accordance with Section
1060 of the Internal Revenue Code of 1986, as set forth on
Schedule 4 attached hereto and incorporated herein by reference,
and all federal income tax returns filed by Seller and Purchaser
with respect to the transaction contemplated by this Agreement
shall be consistent with such allocation.
ARTICLE V
5. Title.
5.1. Evidence of Title. Seller shall furnish, or has
furnished, to Purchaser, at Seller's expense, a current
commitment for an owner's title insurance policy' in the amount
equal to the purchase price of the Land and Building and
Improvements, on or before the date of this Agreement ("Title
Deadline") . Seller will deliver copies of instruments listed in
the schedule of exceptions ("Exceptions") in the title insurance
commitment to Purchaser 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 copies
furnished pursuant to this subsection, constitute the title
documents ("Title Documents") . Seller will furnish copies listed
in the Exceptions no later than the Title Deadline. Seller will
pay the premium at closing and have the title insurance policy
delivered to Purchaser as soon as practicable after closing.
5.2. Title Review. Purchaser shall have the right to
inspect the Title Documents. Written notice by Purchaser of
unmerchantability of title shown by the Title Documents shall be
signed by or on behalf of Purchaser and given to Seller on or
before seven (7) calendar days after Title Deadline, or within
five (5) calendar days after receipt by Purchaser of any Title
Document(s) or endorsement(s) adding new exception(s) to the
6
title commitment, together with a copy of the Title Document
adding new exception(s) of title. If Seller does not receive
Purchaser's notice by the date(s) specified above, Purchaser
accepts the condition of title as disclosed by the Title
Documents as satisfactory.
5.3. Matters Not Shown by Public Record. Seller shall
deliver to Purchaser, on or before the Title Deadline set forth
in this section, true copies of all lease(s) and survey(s) in
Seller's possession pertaining to the Property and shall disclose
to Purchaser all easements, liens, or other title matters not
shown by the public records of which Seller has actual knowledge.
Purchaser shall have the right to inspect the Property to
determine if any third party(ies) has any right in the Property
not shown by the public records (such as an unrecorded easement,
unrecorded lease, or boundary line discrepancy) . Written notice
of any unsatisfactory condition(s) disclosed by Seller or
revealed by such inspection shall be signed by or on behalf of
Purchaser and given to Seller on or before seven (7) calendar
days after Title Deadline. If Seller does not receive
Purchaser's notice by said date, Purchaser accepts title subject
to such rights, if any, of third parties of which Purchaser has
actual knowledge.
5.4. Special Taxina Districts. Special taming
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. Purchaser should investigate the debt financing
requirements of the authorised general obligation indebtedness of
such districts, existing mill levies of such districts 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 Purchaser desires to terminate this Agreement
as a result, if written notice is given to Seller on or before
the date set forth in subsection 5.3. above, this Agreement shall
then terminate. If Seller does not receive Purchaser's notice by
the date specified above, Purchaser accepts the effect of the
Property's inclusion in such special taxing district(s) and
waives the right to so terminate.
5.5. Right to Cure. If Seller receives notice of
unmerchantability of title as provided in subsection 5.2. or 5.3.
above, Seller shall use reasonable effort to correct said title
defects prior to the date of closing. If Seller fails to correct
said title defects on or before the date of closing, this
Agreement shall then terminate; provided, however, Purchaser may,
7
by written notice received by Seller, on or before closing, waive
objection to said title defects.
ARTICLE VI
Assumption of Certain Liabilities. At time of closing, the
Purchaser shall assume, succeed to, and agree to discharge and
perform before they become delinquent the following (and only the
following) liabilities of Seller outstanding as of the closing
date: all liabilities arising subsequent to the closing date
under any permit, lease, contract, or other agreement which
Purchaser assumes at closing in accordance with the provisions of
Article II above, being those purchased assets as defined in said
Article and/or set forth in the settlement statement at time of
closing (the "Assumed Liabilities") .
ARTICLE VII
Time and Place of Closing. The transaction contemplated by
this Agreement shall be consummated (the "Closing") at 10 a.m. on
February 1, 1999, at Wyatt, Martell, Weaver & Rogers, LLC, to be
effective at 12 midnight on January 31, 1999, or on such other
date, or at such other time or place as shall be mutually agreed
upon by Seller and Purchaser; provided, however, that the date of
Closing shall be automatically extended from time to time for so
long as any of the conditions set forth in this Agreement shall
not have been satisfied or waived, so long as said Closing is not
extended beyond February 5, 1999.
ARTICLE VIII
8.1 Prorations. All utilities (gas, water, electricity,
and telephone) , leases, agreements (to pay for services or goods,
or to receive payment for services or goods) , prepaid accounts,
and taxes shall be prorated at time of closing between the Seller
and Purchaser on the basis of benefits received. Seller shall be
responsible for all costs and expenses incurred in the operation
and use of the Purchased Assets prior to the effective Closing,
and income therefrom, and Purchaser shall be responsible for
costs and expenses incurred in the operation and use of the
Purchased Assets after the effective Closing, and all income and
rents therefrom, EXCEPT for such agreements as set forth in
Schedule 8. 1 attached hereto and incorporated herein by reference
(LD-1 Facility, a/k/a Chronopol Plant Lease, inventory purchase,
service agreement, etc.) that set forth continuing relationships
between the parties (the "Closing Service and Lease Agreements") .
Also see Articles XIV and XV.
8.2 Real Property Tax Proration and Payment. Seller shall
pay directly to the appropriate taxing authorities all real
property taxes assessed on the Land and the Buildings and
Improvements for the 1998 property tax year and all prior
8
property tax years when such taxes become due and payable.
Purchaser shall pay directly to the appropriate taxing
authorities all real property taxes assessed on the Land and the
Buildings and Improvements for all property tax years after the
1998 property tax year. If Seller receives the real property tax
bill for the Land and the Buildings and Improvements for the 1999
property tax year, Seller shall forward to Purchaser a copy of
the 1999 real property tax bill within five (5) business days of
the date when Seller receives such tax bill. If Purchaser
receives the real property tax bill for the Land and the
Buildings and Improvements for the 1999 property tax year,
Purchaser shall forward to Seller a copy of the 1999 real
property tax bill within five (5) business days of the date when
Purchaser receives such tax bill. Regardless of whether Seller
or Purchaser receives such real property tax bill, Purchaser
shall be responsible for paying its pro rata portion of the 1999
real property tax assessed on the Land and the Buildings and
Improvements, which shall be determined by multiplying the total
real property taxes assessed on the Land and the Buildings and
Improvements for the 1999 property tax year by a fraction in
which the numerator is equal to the number of days in 1999 after
the Closing and the denominator is equal to 365. If the 1999
real property tax bill for the Land and the Buildings and
Improvements is directed to Seller as the taxpayer, Purchaser
shall pay to Seller, on or before April 1, 2000, in cash or other
immediately available funds, Purchaser's portion of the 1999 real
property tax, and Seller shall be responsible for paying all 1999
real property tax, and Seller shall be responsible for paying all
1999 real property taxes to the appropriate taxing authorities,
including the funds collected from Purchaser, when they become
due and payable. If the 1999 real property tax bill for the Land
and the Buildings and Improvements is directed to Purchaser as
the taxpayer, Seller shall pay to Purchaser, on or before April
1, 2000, in cash or other immediately available funds, Seller's
pro rata portion of the 1999 real property tax (which shall be
the total of the 1999 real property tax bill less Purchaser's pro
rata portion as determined under this Section 8.2) , and Purchaser
shall be responsible for paying all 1999 real property taxes to
the appropriate taxing authorities, including the funds collected
from Seller, when they become due and payable. Purchaser shall
be obligated to make all payments pursuant to this Section 8.2
notwithstanding any decision by Purchaser to protest any taxes
assessed against the Land and the Buildings and Improvements.
References in this Agreement to a "property tax year" are
references to the year in which property taxes are levied, which
is the year preceding the year in which property taxes are -
payable (i.e. , the "1998 property tax year" refers to the
property taxes levied in 1998 and payable in 1999) .
8. 3 Personal Property Tax Proration and Payment. Seller
shall timely file with the appropriate taxing authorities the
required annual statement listing all personal property owned by
9
Seller as of January 1, 1999, including the Personal Property,
for purposes of determining personal property taxes due on such
personal property for the 1999 property tax year. Seller shall
provide to Purchaser a copy of the statement when the statement
is filed with the taxing authorities and shall send Purchaser a
copy of the notice of valuation received with respect to the
Personal Property by facsimile transmission and mail within three
(3) business days after receipt. If Seller receives the personal
property tax bill for the Personal Property for the 1999 property
tax year, Seller shall forward to Purchaser a copy of the 1999
personal property tax bill within five (5) business days of the
date when Seller receives such tax bill. If Purchaser receives
the personal property tax bill for the Personal Property for the
1999 property tax year, Purchaser shall forward to Seller a copy
of the 1999 personal property tax bill within five (5) business
days of the date when Purchaser receives such tax bill.
Regardless of whether Seller or Purchaser receives such personal
property tax bill, Purchaser shall be responsible for paying its
pro rata portion of the 1999 personal property tax assessed on
the Personal Property, which shall be determined by multiplying
the total personal property taxes assessed on the Personal
Property for the 1999 property year by a fraction in which the
numerator is equal to 365. If the 1999 personal property tax
bill for the Personal Property is directed to Seller as the
taxpayer, Purchaser shall pay to Seller, on or before April 1,
2000, in cash or other immediately available funds Purchaser's
portion of the 199 personal property tax and Seller shall be
responsible for payment all 1999 personal property taxes to the
appropriate taxing authorities, including the funds collected
from Purchaser, when they become due and payable. If the 1999
personal property tax bill for the Personal Property is directed
to Purchaser as the taxpayer, Seller shall pay to Purchaser, on
or before April 1, 2000, in cash or other immediately available
funds Seller's pro rata portion of the 1999 personal property tax
(which shall be the total of the 1999 personal property tax bill
less Purchaser's pro rata portion as determined in this Section
8.3) , and Purchaser shall be responsible for paying all 1999
personal property taxes to the appropriate taxing authorities,
including the funds collected from Seller, when they become due
and payable. Purchaser shall be obligated to make all payments
pursuant to this Section 8.3 notwithstanding any decision by
Purchaser to protest any taxes assessed against the Personal
Property. In order to assure Seller that Purchaser satisfies its
obligation to pay its share of the 1999 personal property taxes,
Purchaser, by this Agreement, grants to Seller a security
interest in a front loader, Fiat-Allis 545B - Cer# 21C05802, and
shall deliver at Closing its UCC-1.
8.4 Right to Protest and Claim Refunds; Further Assurances.
Seller reserves the right to make claims with the appropriate
authorities for refund of, and retain any resulting refunds of,
(i) real property taxes paid with respect to the Land and the
10
Buildings and Improvements, and (ii) personal property taxes paid
with respect to the Personal Property, in each case for the 1998
property tax year and all prior property tax years. If Seller
claims a refunds for any taxes described in the foregoing
sentence, Purchaser shall take all actions, as reasonably
requested by Seller, to assist Seller in filing and prosecuting
Seller's claims for refund, provided. however, that Seller shall
reimburse Purchaser for all out-of-pocket costs reasonably
incurred by Purchaser when providing such assistance. Purchaser
shall have the right to protest and claim refunds of (i) personal
property taxes assessed against the Land and the Building and
Improvements, and (ii) personal property taxes assessed against
the Personal Property, in each case for property tax years after
the 1998 property tax year. If Purchaser protests or claims
refunds of any tax assessments described in the foregoing
sentence, Seller shall take all actions, as reasonably requested
by Purchaser, to assist Purchaser in filing and prosecuting
Purchaser's protest and claims for refund, provided, however,
that Purchaser shall reimburse Seller for all out-of-pocket costs
reasonably incurred by Seller when providing such assistance. If
a final determination is made with respect to any protest or
claim for refund filed by Purchaser with respect to personal
property taxes for the 1999 property tax year, the parties shall
make appropriate adjustments and payments to reflect their pro
rata shares of the final 1999 tax bill for the Personal Property.
8.5 Sales and Use Tax. The parties agree that the second
paragraph of the Colorado Department of Revenue's Regulation 26-
117. 1 applies to the transactions contemplated under this
Agreement. Thus, Purchaser agrees to pay to the appropriate
taxing authorities on a timely basis all sales and use tax
incurred in connection with the transactions contemplated under
this Agreement.
ARTICLE IX
Conveyances and Transfers. The Land, Building and
Improvements shall be conveyed by general Warranty Deed, the
Water described on Schedule 2. 1.B by Special Warranty Deed, and
the Water by Quitclaim Deed executed by all parties since The
Great Western Sugar Company that might have held an interest in
the Land and/or the Water, and the remaining Purchased Assets,
including Water shares and well rights, shall be transferred,
assigned, and conveyed by such instruments as appropriate in
transactions of this nature. Also see Articles XIV and XV.
ARTICLE X
10. Seller's Representations and Warranties. Attached
hereto and made a part hereof are schedules (the "Disclosure
Schedules") arranged in paragraphs corresponding to the numbered
and lettered paragraphs. Except as set forth in the Disclosure
11
Documents, Seller makes, represents, and warrants to Purchaser
the following statements to be true:
10.1 Oraanizatioh.
A. Seller is a corporation(s) duly organized,
existing, and in good standing under the laws of the jurisdiction
under which it was incorporated. Seller has all -necessary power
and authority to own its properties and assets and to conduct its
business as now conducted.
B. Seller has qualified to conduct business and
is in good standing under the laws of all jurisdictions where the
nature of the operations or the nature or location of its assets
require such qualification.
C. Seller has full corporate power and authority
to execute and deliver this Agreement and all documents and
instruments to be executed by Seller pursuant to this Agreement
(collectively "Seller's Ancillary Documents") , to perform its
obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby.
D. All acts required to be taken by Seller to
authorize the execution and delivery of this Agreement and each
of Seller's Ancillary Documents, the performance of each of its
obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, including, without
limitation, the approval of Seller's stockholders and Board of
Directors, if needed, have been or will have been duly and
properly taken prior to the Closing, and no other proceedings on
the part of Seller are necessary to authorize such execution,
delivery, and performance.
E. This Agreement has been, and Seller's
Ancillary Documents will be, duly executed and delivered by duly
authorized officers of Seller. This Agreement and each of
Seller's ancillary documents that are a contract constitutes a
legal, valid, and binding obligation of Seller signing the same,
enforceable against Seller in accordance with its terms.
F. No consent, authorization, or approval of, or
filing or registration with, any governmental authority is
required for the execution and delivery of this Agreement and
Seller's Ancillary Documents and the consummation by Seller of
the transactions contemplated by this Agreement and Seller's
Ancillary Documents.
G. Neither the execution and delivery of this
Agreement and Seller's Ancillary Documents by Seller, nor the
consummation by Seller of the transactions contemplated hereby
and thereby, will conflict with or result in a breach of any of
12
the terms, conditions, or provisions of (1) Seller's charter
documents or bylaws, (2) any statute or administrative
regulation, (3) any order, writ, injunction, judgment or decree
of any court or any governmental authority or any arbitration
award applicable to the Seller, or (4) any material contract or
agreement to which the Seller is a party or by which the
purchased assets may be bound, nor give rise to any default,
acceleration, or right of termination under any such contract or
agreement.
10.2 Undisclosed Chances. To Seller's knowledge,
Seller has not failed to disclose to Purchaser any adverse action
or event (including, without limitation, the existence or threat
of any labor dispute or any material adverse change in or loss of
any business relationships between the company and any of its
customers, suppliers, or key employees) , which would have a
material adverse effect on the Purchased Assets.
10. 3 Contracts. Benefit Plans. Notes, and Other
Instruments.
A. The exhibits and schedules set forth in
Article II correctly and completely list and describe all
material contracts, leases, and agreements to which Seller is a
party and which relate to the Purchased Assets, or the operations
thereon, including, without limitation: collective bargaining
agreements, employment and employment-related agreements;
covenants not to compete; loan agreements; notes; security
agreements; sales representative, distribution, franchise, and
similar agreements; license agreements; subscriptions; purchase
orders and purchase contracts and sales orders and sales
contracts. All material contracts, leases, and other instruments
referred to in Article II, and all other material contracts or
instruments to which Seller is a party with respect to the
operation of the Purchased Assets, are in full force and binding
upon Seller and, to Seller's knowledge, the parties thereto.
Except as set forth in the exhibits and disclosure schedules
attached to this Agreement, no default by Seller has occurred
thereunder, to the best of Seller's knowledge, no default by
other contracting parties has occurred thereunder, and to the
best of Seller's knowledge, no event, occurrence, or condition
exists which, with the lapse of time, the giving of notice, or
both, or the happening of any further event or condition, would
become a default by Seller thereunder.
B. Other than as set forth in Article II
disclosure exhibits and schedules, Seller is not a party to or
bound by any unexpired, undischarged, or unsatisfied written or
oral material contract, agreement, indenture, mortgage,
debenture, note or other instrument under the terms of which
performance by Seller according to the terms of this Agreement
will be a default or an event of acceleration, or whereby timely
13
performance by Seller according to the terms of this Agreement
will be prohibited, prevented, or delayed.
C. To Seller's knowledge, Seller has obtained
all material licenses, permits, registrations, approvals and
agreements and consents (other than environmental permits) which
are required in order for Seller to conduct the business upon and
with the Purchased Assets.
10.4 Employees.
A. With respect to employees engaged in the
operation of the Purchased Assets and their employee benefit
plans:
(1) Except as set forth in Schedule
10.4.A(1) , all employee benefit plans within the
meaning of Section 3-(3) of the Employee Retirement
Income Security Act of 1974 ("ERISA") (the "Employee
Benefit Plans") , maintained by Seller or any affiliate
of the Seller, as determined under Section 414(b) , (c) ,
(m) or (o) of the Internal Revenue Code of 1986 (the
"Code") ("ERISA Affiliate") , and which provide benefit
to employees of the Seller comply in all material
respects with and are and have been operated in
substantial accordance with each applicable provision
of ERISA, the Code (including, without limitation, the
requirements of Code § 401(a) to the extent any of such
plans which is an employee pension benefit plan within
the meaning of S 3 (a) of ERISA is intended to conform
to that section, other federal statutes, and the
regulations and rules promulgated pursuant thereto or
in connection therewith.
(2) Each employee benefit plan which is an
employee welfare benefit plan within the meaning of
§ 3 (1) of ERISA and which is a group health plan within
the meaning of § 5000(b) (1) of the Code and which
provides benefits to employees of the Seller complies
in all material respects with and has been and operated
substantially in accordance with § 4980B of the Code
and part 6 of subtitle B of Title 1 of ERISA ("COBRA") .
There are no pending, or to the best knowledge of
Seller, threatened claims, suits or other proceedings
by any employee or former employee of the Seller or by
the beneficiary, dependent or representative of any
such person, involving the failure of any group health
plan ever maintained with respect to the employees of
the Seller to comply with the health care continuation
requirements of COBRA.
14
(3) Neither Seller nor any ERISA Affiliate
has incurred any liability to the Pension Benefit
Guaranty Corporation ("PBGC") as a result of the
voluntary or involuntary termination of an employee
pension benefit plan pertaining to employees of the
Seller which is subject to TITLE IV of ERISA. There is
currently no active filing by Seller or any ERISA
Affiliate with the PBGC (and no proceeding has been
commenced by the PBGC) to terminate any employee
pension benefit plan pertaining to employees of the
Seller which is subject to TITLE IV of ERISA, and which
has been maintained or funded, in whole or in part, by
Seller or any ERISA Affiliate.
(4) Except as provided in Schedule 1o.4.A(1)
of the disclosure schedule, neither Seller nor any
ERISA Affiliate currently maintains or is obligated to
contribute to, nor has in the past, maintained or
contributed to, any multi-employer plan, as defined in
S 3 (37) of ERISA, pertaining to employees of the
Seller, and neither Seller nor any ERISA Affiliate has
suffered a complete withdrawal or partial withdrawal as
such terms are defined in §§ 4203 and 4205,
respectively, of ERISA for which it reasonably expects
to incur any withdrawal liability, with respect to any
such plan.
B. With respect to Seller's employees, except as
provided in Schedule 10.4.A(1) of the disclosure schedule:
(1) There are no pending or, to the best of
Seller's knowledge, threatened unfair labor practice
charges or employee grievance charges.
(2) There is no request for union
representation, labor strike, dispute, slow down, or
stoppage actually pending, or to the best of Seller's
knowledge, threatened against or directly affecting
Seller.
(3) No grievance or arbitration proceeding
arising out of or under collective bargaining
agreements is pending or, to Seller's knowledge,
threatened.
(4) Seller has made all payments heretofore
required to be made under all of Seller's employee
benefit plans and has made all payments of accrued
salaries or wages and vacation pay thereto required
pursuant to any law or any policy of the Seller to be
made with respect to employment of any person by the
Seller. Except as set forth in Schedule 10.4.A(1) of
15
the disclosure schedule, Seller has no liability to
provide medical benefits to former employees or their
spouses or dependents, other than as required by S
4980B of the Code.
(5) Schedule 10.4.B(5) of the disclosure
schedule contains a true and complete list of all of
the Seller's employees as of the date therein set
forth, and such list correctly reflects their salaries,
other compensation (other than benefits under the
employee benefit plans) , including all bonuses paid or
accrued as of such date, dates of employment, current
positions and all severance pay entitlements. All
employees of Seller shall be terminated at 12 midnight
on the effective date of Closing. Seller shall pay all
salaries, bonuses, vacations, employee benefits and any
and all such other obligations of Seller arising out of
employees' employment with Seller at time of
termination pursuant to federal and state laws,
holding, pursuant to this Agreement, Purchaser harmless
from any and all claims that may arise now or hereafter
out of the employment and the termination of employees
of the Seller, both past and present, but limited to
actions or inactions prior to the effective date of
Closing.
10.5 Litigation.
A. Other than as set forth in Schedule 10.5.A of
the disclosure schedule, there are no litigations, arbitrations,
or proceedings, in law or in equity, and there are no proceedings
or governmental investigations before any commission or other
administrative authority, pending or, to Seller's knowledge,
threatened in writing, against Seller, or with respect to the
Purchased Assets or with respect to the consummation of the
transactions contemplated hereby, including employment
terminations, or the use of the Purchased Assets (either by
Purchaser after the closing or by Seller prior thereto) .
B. Other than as set forth in Schedule 10.5.7 of
the disclosure schedule, Seller is not a party to and neither
Seller nor any of the Purchased Assets is or bound by, any
decree, order or arbitration award (or agreement entered into in
any administrative, judicial, or arbitration proceeding with any
governmental authority) .
C. Seller is not in violation of, or delinquent
with respect to, any decree, order or arbitration award or law,
statute, or regulation of or agreement with, or permit from, any
federal, state, or local governmental authority (or to which
Seller's properties, assets, personal, business activities, or
the Purchased Assets are subject to or to which Seller is
16
subject) , including, without limitation, laws, statutes, and
regulations relating to equal employment opportunities, fair
employment practices, unfair labor practices, terms of
employment, occupational health and safety, wages and hours and
discrimination, and zoning ordinances and building codes, the
violation of which would result in a material adverse effect to
the properties, assets, business activities, and Purchased
Assets. Copies of all notices of violation of any of the
foregoing which Seller has received within the past year are
attached as Schedule 10.5.C of the disclosure schedule.
10.6. Environmental Matters.
A. Representations and Warranties. Seller
represents and warrants the following:
(1) Compliance with Environmental Laws.
Except for matters set forth in Schedule 10.6.A of the
Disclosure Schedule, Seller and the Purchased Assets
are in compliance with all Environmental Laws and all
Environmental Permits. Seller has not received any
notice, citation, inquiry or complaint of any alleged
violations of or liability, or potential liability,
under any Environmental Law or Environmental Permit
related to the Purchased Assets or Seller.
(2) Environmental Permits. Except as set
forth in Schedule 10.6.4 of the Disclosure Schedule,
there are no Environmental Permits required for the
operation of the Purchased Assets in performance of
Seller's past manufacturing and storage processes.
(3) Hazardous Materials. Except as set
forth in Schedule 10.6.A of the Disclosure Schedule,
there has been no storage, treatment, generation,
transportation or release of any Hazardous Materials by
Seller or by any agent of Seller (hereinafter
collectively "Seller or Seller's Agents") at any
Building and Improvements at which any of the Purchased
Assets are located on the Land and Leased Premises in
violation of, or which could give rise to, any material
obligation or the occurrence of any material damages
under, Environmental Laws of Environmental Permits.
(4) Tanks and Containers. Schedule 10.6.4
of the Disclosure Schedule describes storage tanks and
containers used for the storage, transportation and/or
collection of Hazardous Materials by Seller or Seller's
Agents on the Land or Leased Premises. All storage
tanks and containers containing Hazardous Materials
from the Land or Leased Premises by Seller or Seller's
Agents have been removed in accordance with applicable
17
Environmental Laws. Before the date of Closing, or
reasonably soon thereafter, Seller shall remove all
containers of "hazardous waste, " as that term is
defined in Resource Conservation and Recovery Act, 42
U.S.C. $ 6901 et seq. , and the Colorado Hazardous Waste
Act, Colo. Rev. Stat. S 25-15-101 et seq. , and their
associated regulations, which was generated by Seller
prior to Closing regardless of the volume of the
container or the volume of its contents. There are no
underground storage tanks on the Land or Leased
Premises.
(5) Additional Matters. Without in any way
limiting the generality of the foregoing, except as
disclosed in Schedule 10.6.4 of the Disclosure
Schedule, to' the best of Seller's knowledge, after
undertaking reasonable investigation:
(a) Asbestos. There is no asbestos
containing material, presumed asbestos containing
material and/or friable asbestos contained in or
forming part of any building, building component,
structure or office space owned, operated, leased,
managed or controlled by Seller or located on the
Land or Leased Premises;
(b) Use: Storaae. There are no
Hazardous Materials used or stored on the Land or
Leased Premises in quantities which require a
permit or reporting under Environmental Laws;
(c) Disposal: Release. There are no
locations included within the Land or Leased
Premises at which any Hazardous Material
generated, used, owned or controlled by Seller or
Seller's Agents has been disposed of or Released
into the Environment in reportable quantities or
in amounts which require investigation or
remediation;
(d) Liens. There are no liens recorded
or filed under any Environmental Law with respect
to the Land or any of the Purchased Assets;
(e) Claims: Actions. There are no
claims or actions pending or threatened against
Seller, the Land or the Leased Premises involving,
related or pertaining to Hazardous Materials,
Environmental Laws or the Environmental Permits;
and
18
(f) Reports; Documents. Seller has
delivered or made available to Purchaser copies of
all of Seller's reports, schedules, manifests, and
any other documents in the possession and/or
control of Seller or Seller's Agents related or
pertaining to Hazardous Materials, Environmental
Laws and/or the Environmental Permits applicable
to the Purchased Assets, and all such copies are
true, complete, and correct. All such documents
are maintained and kept by Seller in files at the
• Property under the control of Seller's Regulatory
Manager, Dennis Trego; Seller is not aware of the
existence of any other documents related or
pertaining to Hazardous Materials, Environmental
Laws and/or the Environmental Permits applicable
to the Purchased Assets.
(6) To the best of Seller's knowledge, none
of the Land or Leased Premises is listed or proposed
for listing on the National Priorities List or on the
Comprehensive Environmental Response, Compensation and
Liability Information System List, both promulgated
under CERCLA, or on any state or local list of sites
requiring removal, remedial response or corrective
action pursuant to any Environmental Law.
B. Seller's Indemnity.
(1) ACX Technologies and GTC Nutrition,
jointly and severally, agree to release, indemnify,
defend with counsel acceptable to Purchaser, and hold
harmless the Purchaser, its employees, agents, lenders,
and members, shareholders, directors, partners, and
managers from and against all liability claims, suits,
actions, administrative proceedings, orders, damages,
losses, costs, assessments, fines, demands, judgments,
liens, and penalties, and expenses, including, but not
limited to, court and administrative costs or fees,
expert witness, laboratory, consultant, and attorney's
fees, and the costs of any required or necessary
repair, cleanup, remediation, monitoring, closure or
detoxification of whatever kind or nature, foreseeable
or unforeseeable arising out of, relating to, or
pertaining to or as a result of conditions or
circumstances set forth in subparagraphs (a) through
(e) of this paragraph (collectively "Claims") , provided
that such indemnity for conditions and circumstances
set forth in subparagraphs (a) through (d) shall be
limited to Claims that result from or relate to a
demand, request, or requirement for expenditure,
cleanup, investigation, assessment, remediation or
other cost from a third party, including, but not
19
limited to, any governmental agency. Seller's
indemnity shall not extend to consequential damages,
business interruption or interference Claims or Claims
for lost profits, except that Seller will pay $35,000
to Purchaser at time of Closing for business
interruption for the period from the date of Closing
through December 31, 1999.
(a) the presence or alleged presence,
known or unknown, of Hazardous Materials at, on,
under or migrating from the Purchased Assets as a
result of the use and occupancy of the Land and
Leased Premises prior to the date of Closing;
(b) any activities conducted at the
Land and Leased Premises related to Hazardous
Materials by any prior owner or tenant, their
agents, employees or contractors prior to the date
of Closing, including but not limited to any
discharge of Hazardous Materials to any surface
water or ground water;
(c) any Release of any Hazardous
Material in, on or about the Land or Leased
Premises prior to the date of Closing;
(d) the off-site storage, treatment,
transportation, recycling or disposal of Hazardous
Materials generated by Seller and taken or
directed to be taken from the Premises to any off-
site treatment, recycling, disposal, or storage
facility prior to the date of Closing; and/or
(e) any breach of Seller's
representations and warranties in this Article.
(2) Subject to paragraphs 4 and 5 of this
Section 10.6.B, this indemnity clause shall survive the
Closing and shall not terminate except as follows:
(a) with respect to Claims arising from
or relating to subparagraphs (1) (a) through (d) of
this Section 10.6.B, Seller's indemnification
obligation shall terminate fifteen (15) years from
the date of Closing, except that with respect to
any such Claims relating to the auxiliary parking
area described in Schedule 10. 6.8(2) (a) , provided
that Purchaser is in compliance with paragraph 3
of this Section 10.6.B, Seller's indemnity shall
not terminate; and
20
(b) with respect to Claims relating to
subparagraph (1) (e) of this Section 10.6.B,
Seller's indemnification obligation shall
terminate three (3) years from the date of
Closing.
(3) With respect to the auxiliary described
in Schedule 10.6.B(2) (a) , Purchaser agrees not to
disturb this area or to conduct any activities on it
other than pavement of the area and continued use of
the area for parking. Seller shall have the right to
pave this area prior to Closing or at any time during
the period of its indemnity subsequent to Closing.
(4) Within twelve (12) months of Closing,
Purchaser shall use its best efforts to replace the
existing wastewater treatment system with a new
wastewater treatment system. After the date of
Closing, Purchaser shall not use or conduct activities
at or on either the existing wastewater treatment
system ponds or the inactive evaporation ponds at the
Land and Leased Premises, except that the ponds may
continue to be used for stormwater retention and
revegetation or other remediation; provided, however,
that Purchaser may continue to operate the existing
wastewater treatment system ponds until Purchaser has
accepted the new wastewater treatment system from the
vendor and has received all necessary approvals for its
operation from any and all appropriate governing
agencies. However, when quarterly sampling data from
groundwater monitoring wells associated with the active
or inactive ponds do not indicate an exceedance either
of state and federal groundwater standards or levels in
upgradient wells for at least one year based upon four
(4) consecutive quarters of monitoring data, Purchaser
may use such ponds for any purpose. Provided that
Purchaser is in compliance with the obligations set
forth in this paragraph,
(a) Seller shall indemnify Purchaser
for Claims relating to both the current wastewater
treatment system and the inactive evaporation
ponds as set forth in paragraphs (1) and (20 of
this Section 10. 6.B;
(b) Seller shall not consider
Purchaser's continued reasonable operation of the
wastewater treatment system for up to twelve (12)
months from the date of Closing, or Purchaser's
continued use of the existing wastewater treatment
ponds for stormwater retention, to affect, reduce
or terminate Seller's indemnity; and
21
(c) Purchaser shall be relieved of the
cost sharing obligations pursuant to paragraph (7)
of this Section 10.6.B with respect to a Claim for
indemnification by Purchaser relating to the
existing wastewater treatment system or to the
former evaporation ponds.
(5) If Purchaser formally requests or
initiates a rezoning or redesignation of the
permissible land use for all or any portion of the Land
and Leased Premises, Seller shall be relieved of its
indemnity obligations for such affected portion of the
Land or Leased Premises.
(6) This indemnity clause shall inure to the
benefit of the Purchaser and/or entities that are
controlled by the Purchaser or its controlling members
and Purchaser's lender(s) only, and shall not be
transferable or assignable to any other third party
without Seller's prior written consent.
(7) Pursuant to the procedures set forth in
Article 16 of this Agreement and except as provided in
paragraph (4) of this Section 10.6.B, after Purchaser
has given notice of a Claim covered by this Section
10. 6.B and Seller has accepted such Claim or Seller has
been determined to have an indemnity obligation for
such Claim, Purchaser and Seller shall share equally
the first $100, 000 of the costs associated with any and
all Claims and all such costs in excess of $100,000
shall be borne by Seller. For any and all Claims for
which Seller is providing indemnity, this paragraph
shall obligate Purchaser to pay nor more than $50,000
in the aggregate. Purchaser may propose that its
obligation to share costs pursuant to this paragraph
(7) be offset by environmental improvement expenditures
made by Seller in areas of the Land and Leased Premises
other than those covered by paragraph (4) of this
Section 10.6.B. Seller shall consider in good faith
any such proposed offset made by Purchaser.
(8) Purchaser agrees to cooperate fully with
Seller with respect to any Claim for which Seller is
providing indemnification pursuant to this Section
10. 6.B including providing to Seller without charge or
cost any site access required for Seller to carry out
its indemnification obligations. Seller shall provide
Purchaser reasonable advance written notice for any
such access, and Seller shall make all reasonable
efforts to ensure that such access and any associated
work performed shall not interrupt the manufacturing
activities of Purchaser on the Land or the Leased
22
Premises. Purchaser shall preserve all records,
reports and other documents relating to environmental
compliance, environmental conditions or Environmental
Laws for the duration of any of Seller's indemnity
obligations under this Article, and Purchaser shall
make such documents available to Seller as requested by
Seller in connection with Seller's obligations under
this Section 10. 6.B.
C. Purchaser's Indemnity.
Except as provided in Section 10.6.B(4) (b) of
this Agreement, Purchaser agrees to release, indemnity, defend
with counsel acceptable to Seller, and hold harmless the Seller,
its employees, agents, lenders, and members, shareholders,
directors, partners, and managers from and against all actions by
third parties involving liability, claims, suits, actions,
administrative proceedings, orders, damages, losses, costs,
assessments, fines, demands, judgments, liens, and penalties, and
expenses, including, but not limited to, court and administrative
costs or fees, expert witness, laboratory, consultant, and
attorney's fees, and the costs of any required or necessary
repair, cleanup, remediation monitoring, closure or
detoxification of whatever kind or nature, foreseeable or
unforeseeable arising out of, relating to, or pertaining to or as
a result of (collectively "Claims") : () the presence or alleged
presence, known or unknown, of Hazardous Materials at, on, under
or migrating from the Purchased Assets as a result of the use and
occupancy of the Land and Leased Premises after the date of
Closing; (b) any activities conducted at the Land and Leased
Premises related to Hazardous Materials by Purchaser or its
agents after the date of Closing, and/or (c) any release of any
Hazardous Material in, on or about the Purchased Assets by
Purchaser as a result of the use and occupancy of the Land and
Leased Premises by Purchaser.
10.7. Purchased Assets.
A. None of the Purchased Assets, nor the
business conducted by Seller thereon and therewith are in
violation of any use or occupancy restriction, limitation,
condition, or covenant of record or any zoning or building law,
code, or ordinance or public utility easement.
B. The Purchased Assets currently are served by
utilities adequate to operate such facilities at their current
rate of production, and none of the utility companies serving any
such facility has, to Seller's knowledge, threatened any
reduction in service. All of said utilities are installed and
operating and all installation and connection charges have been
paid for in full.
23
C. Except as disclosed on Schedule 10.7.C or
otherwise reflected on other Disclosure Schedules and exhibits,
the continued maintenance and operation of the Purchased Assets
as currently maintained and operated is not dependent on
facilities located at other property, and the continued
maintenance and operation of any other property is not dependent
on facilities located on the Land; no building or other
improvement not part of such Purchased Assets rely on such
Purchased Assets or any part thereof or any interest therein to
fulfill any governmental requirement; and no building or other
improvement on the Land relies on any property not included
within such Land to fulfill any governmental requirement.
D. There are no condemnation proceedings pending
or, to Seller's knowledge, threatened with respect to any portion
of the Land described in subsection 2.A of Article II.
10.8. Intellectual Property.
A. There is no intellectual property, such as
trademarks, service marks, slogans, trade names, trade dress, and
the like (collectively "trademarks") being transferred by Seller
to Purchaser and therefore no warranties are given by Seller
relating thereto.
10.9. Year 2000 Compliance. Seller specifically makes
no warranty that any of the Purchased Assets are in compliance
with what is generally referred to as "Year 2000 Compliance. "
This includes no compliance of software, computer programs,
robotic or other devices.
10.10. General.
A. Except for the Excluded Assets, the Purchased
Assets constitute all of the assets and property used, or held
for use by Seller in, or related to the operations conducted upon
the Land and the Leased Premises, and all of the assets necessary
to own and conduct the said operations as presently conducted.
There are no properties or assets of the type described in the
definition of Purchased Assets (except Excluded Assets) owned,
used, or held for use by Seller in the operations upon the Land
and the Leased Premises that are not included in the Purchased
Assets. All of the Purchased Assets that constitute tangible
real or personal property are located in the state of Colorado.
B. The representations and warranties of Seller
in this Agreement, Seller's Ancillary Documents, and all other
certificates, schedules, documents, or instruments delivered or
to be delivered to Purchaser in connection with this Agreement do
not and will not (except as certain of these representations may
by their terms be expressly qualified) contain any untrue
statement of a material fact or omit or will omit to state a
24
material fact required to be stated herein or therein in order to
make the representations, warranties, or statements contained
herein and therein not misleading.
C. Upon request by Purchaser, complete and
accurate copies of all documents referred to in the disclosure
schedule will be furnished by Seller to Purchaser prior to
closing.
D. Neither Seller nor any of its affiliates have
dealt with any person or entity who is or may be entitled to a
broker's commission, finder's fee, investment banker's fee, or
similar payment for arranging the transaction contemplated
hereby, or introducing the parties to each other for which
Purchaser shall have any liability or obligation.
ARTICLE XI
11. Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller that:
A. Purchaser is a limited liability company duly
organized, existing, and in good standing under the laws of the
state of Colorado.
B. Purchaser has full power and authority to
execute and deliver (1) this Agreement and (2) all documents and
instruments to be executed by Purchaser pursuant to this
Agreement (collectively "Purchaser's Ancillary Documents") and to
perform its obligations hereunder and thereunder, and to
consummate the transaction contemplated hereby and thereby.
This Agreement has been, and Purchaser's Ancillary Documents will
be, duly executed and delivered by duly authorized managers of
Purchaser and this Agreement and each of Purchaser's Ancillary
Documents that is a contract constitutes a legal, valid, and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
C. No consent, authorization, order, or approval
of, or filing or registration with, any governmental authority or
other person is required for the execution and delivery by
Purchaser of this Agreement and Purchaser's Ancillary Documents,
and the consummation by Purchaser of the transaction contemplated
by this Agreement and Purchaser's Ancillary Documents. All acts
required to be taken by Purchaser to authorize the execution and
delivery of this Agreement and each of Purchaser's Ancillary
Documents, the performance of each of its obligations hereunder
and thereunder, and the consummation of the transaction
contemplated including, without limitation, the approval of
Purchaser's members and managers, if needed, have been duly and
properly taken, and no other proceedings on the part of Purchaser
25
are necessary to authorize such execution, delivery and
performance.
D. Neither the execution and delivery of this
Agreement and Purchaser's Ancillary Documents by Purchaser, nor
the consummation by Purchaser of the transaction herein and
therein contemplated, will conflict with or result in a breach of
any of the terms, conditions, or provisions of (1) Purchaser's
certificate of organization or Operating Agreement, (2) any
statute or administrative regulation (3) any order, writ,
injunction, judgment or decree of any court or governmental
authority or of any arbitration award applicable to Purchaser, or
(4) any material contract or agreement of which any of Purchaser
or Purchaser's affiliates may be bound by, or give rise to, any
default, acceleration, or right of termination under any such
contract or agreement.
E. Neither Purchaser nor any of its affiliates
have dealt with any person or entity who is or may be entitled to
a broker's commission, finder's fee, investment banker's fee, or
similar payment for arranging the transaction contemplated hereby
or introducing the parties to each other.
F. There are no litigations, arbitrations, or
proceedings, in law or in equity, and there are no proceedings of
governmental investigations before any commission or other
administrative authority, pending or threatened in writing
against Purchaser or any of its affiliates that would materially
affect Purchaser's ability to pay the Purchase Price, and to meet
Purchaser's obligations under this Agreement.
G. Except for the representations and warranties
expressly made by Seller in this Agreement, Purchaser has not
relied upon any statement or claim made by or on behalf of Seller
or any other materials furnished by Seller. Purchaser has
conducted its own review of the Purchased Assets and the
operations conducted on the Land and is basing its decision to
acquire the Purchased Assets upon such review and the
representations and warranties expressly made herein by Seller.
ARTICLE XII
12 . 1 Conduct Prior to Closing. Seller and Purchaser shall
have the rights and obligations with respect to the period
between the date hereof and the date of Closing, which are set
forth in the remainder of this Article XII.
12 .2 Seller's Obligations. The following are Seller's
obligations between the date hereof and the date of Closing as
they relate to the operations of the Purchased Assets and the
transactions described herein:
26
A. Seller shall provide appropriate access to
Purchaser's managers, employees, attorneys, consultants, and
accountants for their reasonable inspection of all the Purchased
Assets, contracts, documents, records, and personal of Seller
relating to the operations and shall furnish to Purchaser such
information relating to the operations as Purchaser may at any
time and from time to time reasonably request.
-
B. Seller shall use reasonable good faith
efforts (and Purchaser shall cooperate with Seller) to obtain all
consents and/or approvals specified by Purchaser to the
assignment of, or alternate arrangements reasonably satisfactory
to Purchaser with respect to, any contract, lease, insurance
policy, agreement, purchase order, sales order, or other
instrument, Permit, or environmental permit, which is to be
assigned to Purchaser hereunder and which may be required for
such assignment to be effective (the "Consents") .
C. Seller shall (1) carry on the operations of
the Purchased Assets in the usual and ordinary course of
business, consistent with past practices, (2) use its reasonable
efforts to preserve its business and the good will of its
customers, suppliers, and other having business relationships
with Seller and to retain its business organization in tact,
including reasonable effort to keep substantially available the
services of its present employees, representatives, and agents,
(3) use reasonable efforts to maintain all of its properties in
good operating condition and repair, ordinary wear and tear
excepted, and (4) use reasonable effort to cause each and every
representation and warranty of Seller as set forth in Article X
of this Agreement to be true and accurate in all material
respects as if originally made as of the date of Closing, subject
to those matters set forth on the Disclosure Schedules.
D. Without the prior written consent of
Purchaser, and without limiting the generality of any other
provision of this Agreement, Seller shall not:
(1) Hire any new employee except to replace
an employee whose services are terminated, at
comparable wages or salary;
(2) Adopt or amend any plan, welfare plan,
or employee benefit plan;
(3) Increase the compensation payable to any
employee, provided that this shall not prevent Seller
from paying its employees severance or bonus payments
prior to Closing;
(4) Enter into any new collective bargaining
agreement or modify or extend any existing collective
27
bargaining agreement with the effect of incurring
obligations after the Closing;
(5) Sell, transfer or otherwise dispose of
any of the Purchased Assets, except in the ordinary
course of business;
(6) Amend, terminate, or give notice of
termination with respect to any material existing
agreement to which Seller is a party, or waive any
material rights thereunder;
(7) Fail to pay its accounts payable when
due;
(8) Make any material adverse change in the
Purchased Assets;
(9) Engage in any transaction affecting the
Purchased Assets, except in the normal and ordinary
course of business;
(10) Fail to manage the inventories,
manufacturing processes and storage processes in the
ordinary course of business; or
(11) Permit any insurance policy relating to
the Purchased Assets to be cancelled or terminated.
12 .3 Joint Obligations. The following shall apply with
equal force to Seller and Purchaser:
A. Without implication that such laws apply to
the transaction contemplated hereby, Seller and Purchaser hereby
waive compliance with the provision of the laws of any state
relating to bulk sale or bulk transfer laws in respect of the
transaction contemplated by this Agreement.
B. No party shall intentionally perform any act
which, if performed, or omit to perform, any act which, if
omitted to be performed, would prevent or excuse the performance
of this Agreement by any party hereto or which would result in
any representation or warranty herein contained of said party
being untrue in any material respect as if originally made on and
as of the date of Closing.
C. Each party hereto will (1) take all
commercially reasonable steps necessary, and proceed diligently
and in good faith and use all commercially reasonable efforts, as
promptly as practical to obtain all consents, approvals or
actions of, to make all filings with and to give all notices to
governmental and regulatory bodies required of such parties or
28
their affiliates to consummate the transaction contemplated
hereby, (2) provide such other information and communications to
such governmental or regulatory bodies as such parties or such
governmental or regulatory bodies may reasonably request in
connection therewith and (3) cooperate with each other as
promptly as practicable in obtaining all consents, approvals, or
actions of, making all filings with and giving all notices to
governmental or regulatory bodies required of each party or any
of its affiliates to consummate the transaction contemplated
hereby. Each party hereto will provide prompt notification to
each other party hereto or its affiliates when any such consent,
approval, action, filing or notice referred to in clause (1)
above is obtained, taken, made or given, as applicable, and will
advise each other party hereto of any communications (and unless
precluded by law, provide copies to each other party hereto) of
any such communications that are in writing with any governmental
or regulatory body regarding any of the transactions contemplated
by this Agreement.
ARTICLE XIII
13. 1 Conditions to Seller's Obligations. The obligation of
Seller to consummate the transactions contemplated hereby is
subject to the fulfillment or waiver by Seller of all of the
following conditions on or prior to the Closing Date, upon the
material nonfulfillment of any of which this Agreement may, at
Seller's option, be terminated pursuant to and with the effect
set forth in Article XVII hereof:
A. Each and every representation and warranty
made by Purchaser shall have been true and correct in all
material respects when made and shall be true and correct in all
material respects as if originally made on and as of the Closing
Date;
B. All obligations of Purchaser to be performed
hereunder through, and including on, the Closing Date shall have
been performed in all material respects;
C. Seller shall have received all of the
agreements, certificates, documents and items specified in
Section 14.2 of this Agreement;
D. No suit, proceeding or investigation shall
have been commenced and pending by any governmental authority or
private person on any grounds to restrain, enjoin or hinder, or
to seek material damages on account of, the consummation of the
transactions contemplated hereby; and
E. Seller's consummation of the transactions
contemplated by this Agreement shall have been approved by
Seller's Board of Directors.
29
13.2 Conditions to Purchaser's Obligations. The obligation
of Purchaser to consummate the transactions contemplated hereby
is subject to the fulfillment or waiver by Purchaser of all of
the following conditions on or prior to the Closing Date, upon
the material nonfulfillment of any of which this Agreement may,
at Purchaser's option, be terminated pursuant to and with the
effect set forth in Article XVII hereof:
A. Each and every representation and warranty
made by Seller shall have been true and correct in all material
respects when made without regard to any schedule updates
furnished by Seller thereafter and shall be true and correct in
all material respects as if originally made on and as of the
Closing Date;
B. All obligations of Seller to be performed
hereunder through, and including on, the Closing Date shall have
been performed in all material respects;
C. Purchaser shall have received all of the
agreements, certificates, documents and items specified in
Section 14.3 of this Agreement;
D. All of the consents set forth in Sections
2 . 1.N and 10.1.D of this Agreement shall have been obtained;
E. No suit, proceeding or investigation shall
have been commenced and pending by any governmental authority or
private person on any grounds to restrain, enjoin or hinder, or
to seek material damages on account of, the consummation of the
transactions contemplated hereby;
F. Seller has provided, at its expense, an
owner's title insurance policy (ALTA Owner's Policy Form B-1970
(rev. 10/17/70 and 10/17/84) ] or an unconditional commitment to
provide such policy with respect to the Land the fee simple title
which is being conveyed to. Purchaser by Seller insuring Purchaser
in an amount not less than the assigned value of such Land and
issued by a title insurance company reasonably acceptable to
Purchaser and Seller showing fee simple title thereto to be
vested in Purchaser and subject only to those title matters
accepted by Purchaser pursuant to Article V; and
G. Purchaser shall have completed by February 1,
1999, at its sole expense such due diligence investigations of
Seller as is customary in transactions of the sort herein
contemplated with respect to the Purchased Assets, and Purchaser
shall be satisfied, in its discretion, with respect to the
results of such investigations. Unless Purchaser notifies Seller
in writing of any concerns raised by such review by the Closing
Date, such condition shall be deemed to be satisfied. No such
investigation or assessment shall in any manner be deemed to
30
relieve Seller of any obligations with respect to any warranties,
representations, covenants or other undertakings made in the
Agreement, or to qualify any such warranties, representations or
covenants. To this end, Seller covenants that from the date of
this Agreement until the Closing Date, Seller will afford
Purchaser and Purchaser's representatives reasonable access
during normal business hours to the facilities and personnel and
will permit Purchaser and its representatives to conduct such
investigations, tests and studies as may be reasonably requested
by Purchaser or its representatives with respect to the Purchased
Assets, provided such investigations do not disrupt materially
the operations of the Purchased Assets and are discretely
conducted.
ARTICLE XIV
14.1. Form of Documents. At the Closing, the parties shall
deliver the documents and shall perform the acts required to
close this transaction. All documents which Seller shall deliver
shall be in form and substance reasonably satisfactory to
Purchaser and Purchaser's counsel. All documents which Purchaser
shall deliver shall be in form and substance reasonably
satisfactory to Seller and Seller's counsel.
14.2. Purchaser's Deliveries. Subject to the fulfillment or
waiver of the conditions set forth in Section 13 .2 of this
Agreement, Purchaser shall execute and/or deliver to Seller all
of the following:
A. The Purchase Price payable by wire transfer
or bank draft, in immediately available funds, at the Closing;
B. A copy of Purchaser's Certificate of
Organization;
C. An incumbency and specimen signature
certificate with respect to the managers of Purchaser executing
this Agreement and Purchaser's Ancillary Documents on behalf of
Purchaser;
D. A certified copy of resolutions of
Purchaser's members and managers authorizing the execution,
delivery and performance of this Agreement and Purchaser's
Ancillary Documents;
E. A closing certificate executed by a manager
of Purchaser, on behalf of Purchaser, pursuant to which Purchaser
represents and warrants to Seller that Purchaser's
representations and warranties to Seller are true and correct as
of the Closing Date as if then originally made (or, if any such
representation or warranty is untrue in any respect, specifying
the respect in which the same is untrue) , that all covenants
31
required by the terms hereof to be performed by Purchaser on or
before the Closing Date, to the extent not waived by Seller in
writing, have been so performed (or, if any such covenant has not
been performed, indicating that such covenant has not been
performed) , and that all documents to be executed and delivered
by Purchaser at the Closing have been executed by duly authorized
managers of Purchaser; and
F. An assumption agreement(s) , duly executed by
Purchaser, under which Purchaser assumes the Assumed Liabilities
and all other liabilities to be assumed by Purchaser pursuant to
this Agreement and indemnifies Seller and holds Seller harmless
from and against any and all such liabilities assumed by
Purchaser. The assumption agreement may be set forth in the
individual lease and/or agreement assignments.
G. A lease (Chronopol Facility) substantially in
the form of Schedule 8 and a Services Agreement (FOS)
substantially in the form of Schedule 8.
H. Letters of credit, guaranties or such other
financial assurances as may be agreed to by Purchaser in order
for Purchaser to obtain the consents of third parties with
respect to the contracts being assigned by Seller to Purchaser.
14. 3 . Seller's Deliveries. Subject to the fulfillment or
waiver of the conditions set forth in Section 13 . 1 of this
Agreement, Seller shall deliver to Purchaser physical possession
of all tangible Purchased Assets, and shall execute (where
applicable in recordable form) and/or deliver or cause to be
executed and/or delivered to Purchaser all of the following:
A. A Bill of Sale to all personal property, a
general Warranty Deed to the Land, a Special Warranty Deed to the
described Water, and a Quitclaim Deed to general Water rights,
executed by Seller, in a form approved by the attorneys for
Seller and Purchaser;
B. An assignment to Purchaser executed by
Seller, in a form approved by attorneys for Seller and Purchaser,
assigning to Purchaser all of the Purchased Assets (other than
the Land) . If necessary in the opinion of Purchaser's counsel,
Seller shall also execute and deliver (in recordable form where
required) separate assignments of any of the Purchased Assets,
where applicable, in the form required by the applicable
governmental agencies, insurance companies, customers, lessors,
and other parties with whom the assignments must be filed;
C. Closing certificates duly executed by an
authorized officer of Seller, on behalf of Seller, pursuant to
which Seller represents and warrants to Purchaser that Seller's
representations and warranties to Purchaser are true and correct
32
as of the Closing Date as if then originally made (or, if any
such representation or warranty is untrue in any respect,
specifying the respect in which the same is untrue) , that all
covenants required by the terms hereof to be performed by Seller
on or before the Closing Date, to the extent not waived by
Purchaser in writing, have been so performed (or, if any such
covenant has not been performed, indicating that such covenant
has not been performed) , and that all documents to be executed
and delivered by Seller at the Closing have been executed by duly
authorized officers of Seller;
D. Releases of all Liens other than Permitted
Liens on the Purchased Assets;
E. All necessary consents or executed documents
by third parties required to consummate this transaction, all as
reasonably acceptable to Purchaser;
F. Certificates of title or origin (or like
documents) with respect to all vehicles included in the Purchased
Assets and other Equipment for which a certificate of title or
origin is required in order for title thereto to be transferred
to Purchaser;
G. A certified copy of the charter documents and
Bylaws of Seller;
H. A certificate of good standing of Seller,
issued not earlier than twenty (20) days prior to the Closing
Date by the Secretary of State of the state of incorporation and
of Colorado;
I. An incumbency and specimen signature
certificate with respect to the officers of Seller executing this
Agreement and Seller's Ancillary Documents;
J. A certified copy of resolutions of the board
of directors of Seller authorizing the execution, delivery and
performance of this Agreement and Seller's Ancillary Documents;
and
K. A standard owner's and seller's affidavit to
and for the benefit of Purchaser and the title company issuing
the Owner's Title Policy sufficient in form and content to permit
the deletion of standard exception (4) of such Policy and a
certificate of compliance with the Foreign Investment in Real
Property Tax Act ("FIRPTA") with respect to the Land.
ARTICLE XV
15. 1. Payments of Accounts Receivable. In the event either
party shall receive subsequent to the Closing Date any instrument
33
of payment of any amounts that belong to the other, the receiving
party shall immediately deliver it to the proper party, endorsed
where necessary, without recourse, in favor of said party.
15.2. Transactional Costs/Expenses. Except as otherwise
expressly herein provided, each party shall bear all fees and
expenses incurred by such party in connection with, relating to
or arising out of the consummation of the transactions
contemplated hereby, including, without limitation, attorneys' ,
accountants, and other professional fees and expenses. All
applicable sales, use and real estate transfer taxes, and all
title insurance and survey costs shall be paid by Purchaser and
Seller in such manner as is customary for transactions of this
nature occurring within the State of Colorado.
15.3. Disclosure of Confidential Information. As a further
inducement for Purchaser to enter into this Agreement, Seller
agrees that for the period of seven (7) years after the Closing
Date, Seller shall, and shall cause its Affiliates to, hold in
strictest confidence, and not, without the prior written approval
of Purchaser, use for their own benefit or the benefit of any
party other than Purchaser or disclose to any person, firm or
corporation other than Purchaser (other than as required by law)
any confidential information of any kind relating to the
Purchased Assets, except such information as was publicly
available prior to the Closing Date, becomes publicly available
or available to other third parties without restriction, or is
necessary to disclose pursuant to law, regulation, court order or
governmental request.
15.4. I junctive Relief. Seller specifically recognizes
that any breach of Section 15.3 will cause irreparable injury to
Purchaser and that actual damages may be difficult to ascertain,
and, in any event, may be inadequate. Accordingly (and without
limiting the availability of legal or equitable, including
injunctive, remedies under any other provisions of this
Agreement) , Seller agrees that in the event of any such breach,
Purchaser shall be entitled to injunctive relief in addition to
such other legal and equitable remedies that may be available.
Seller and Purchaser recognize that the time limitation or
absence of a time limitation in Section 15.3 or Section 15.4 is
reasonable and properly required for the protection of Purchaser
and in the event that such limitation or absence is deemed to be
unreasonable by a court of competent jurisdiction, Seller agrees
and submits to the imposition of such a limitation as said court
shall deem reasonable.
15.5. Further Assurances. The parties shall execute such
further documents, and perform such further acts, as may be
reasonably necessary to transfer and convey the Purchased Assets
to Purchaser, on the terms herein contained, and to otherwise
34
comply with the terms of this Agreement and consummate the
transactions contemplated hereby.
15. 6. Excluded Liabilities. Seller shall discharge or cause
to be discharged in an orderly manner when due following the
Closing all of the Excluded Liabilities, other than any
liabilities that Seller contests or disputes in good faith.
15.7. Seller's Final Payroll. Seller shall cause to be
paid, in a timely manner and consistent with Seller's past
practices, all accrued. payroll (including accrued commissions,
vacation time, and benefit plan contributions, if any) and shall
thereafter pay, file or deposit when due all accrued payroll
taxes and related tax returns attributable to work performed
prior to the Closing Date or resulting from termination prior to
or as of the Closing Date, with respect to all persons employed
by the Seller as of or prior to the Closing Date. It is
anticipated that all payroll checks will be paid within seven (7)
days of Closing.
15.8. Names and Trademarks. Purchaser may not use any of
the names or trademarks of the Seller or its affiliates without
the express prior written consent of Seller.
ARTICLE XVI
16. 1. General. The parties agree that all provisions of
this Agreement, except as herein otherwise specifically provided,
shall survive for three (3) years from date of Closing.
Warranties pertaining to performance by Seller or Purchaser, as
the case may be, of assigned and nonassigned leases and
agreements shall survive for five (5) years following the
termination of such lease or agreement, or for such longer period
should such lease or agreement provide for an extended warranty
or other commitment. Provisions pertaining to environmental
issues shall survive for such time period as provided in Section
10.6 of this Agreement. Warranties in deeds, the Bill of Sale,
transfers, and assignments of Purchased Assets delivered at
Closing shall survive indefinitely. Section 15.5, Further
Assurances, shall survive indefinitely. After a representation
and warranty has terminated and expired, no indemnification will
or may be sought pursuant to this Article XVI on the basis of
that representation and warranty by any party who would have been
entitled pursuant to this Article XVI to indemnification on the
basis of that representation and warranty prior to its
termination and expiration. As used in this Agreement, the term
"Damages" shall mean all loss, cost, liability or expense arising
out of or in connection with demands, claims, actions or causes
of action, regulatory, legislative or judicial proceedings or
investigations, assessments, levies, losses, fines, penalties or
damages, including without limitation reasonable attorneys' ,
accountants' , investigators' , and experts' fees and expenses
35
sustained or incurred in connection with the defense or
investigation of any such matter.
16.2. Indemnification Obliaations of Seller. Subject to the
limitations set forth in Section 16.1 of this Agreement and
except as to those matters covered by Section 10.6 as to which
the indemnification provision set forth therein shall control,
Seller shall defend, indemnify, save and keep harmless Purchaser
and its successors and permitted assigns against and from all
Damages sustained or incurred by any of them resulting from or
arising out of or by virtue of:
A. Any breach of any representation or warranty
made by Seller in this Agreement or in Seller's Ancillary
Documents or in any closing document delivered to Purchaser in
connection with this Agreement;
B. Any breach by Seller of, or failure by Seller
to comply with, any of its covenants or obligations under this
Agreement;
C. The failure to discharge when due any of the
Excluded Liabilities, or any claim against Purchaser with respect
to any Excluded Liability;
D. Any benefit or other liability accruing prior
to the Closing Date with respect to any Employee Benefit Plan
which Seller or an ERISA Affiliate have at any time maintained or
administered or to which Seller or any ERISA Affiliate have at
any time contributed (including, without limitation, any
liability for health continuation requirements under Code Section
4980B or Part 6 of Subtitle B of Title I of ERISA) which relate
to employees of the Seller and any liability arising pursuant to
Title IV of ERISA for plan termination, withdrawal or partial
withdrawal from any Multi-employer Plan with respect to employees
of the Seller, or any lien to enforce any Title IV liability or
any liability for retiree benefits accrued prior to the Closing
Date with respect to employees of the Seller; or
E. Any claims which arise out of the operations
of the Purchased Assets prior to the Closing Date.
16.3. Purchaser's Indemnification Obligations. Subject to
the limitations set forth in Section 16.1 of this Agreement and
except as to those matters covered by Section 10.6 as to which
the indemnification provision set forth therein shall control,
Purchaser shall defend, indemnify, save and keep harmless Seller
and its successors and permitted assigns against and from all
Damages sustained or incurred by any of them resulting from or
arising out of or by virtue of:
36
A. Any breach of any representation or warranty
made by Purchaser in this Agreement or in Purchaser's Ancillary
Documents or in any closing document delivered to Seller in
connection with this Agreement irrespective of whether known to
Seller as of or prior to the Closing Date;
B. Any breach by Purchaser of, or failure by
Purchaser to comply with, any of its covenants or obligations
under this Agreement (including, without limitation, its
obligations under this Article XVI) ;
C. Purchaser's failure to pay, discharge or
perform any of the Assumed Liabilities or any claim against
Seller with respect to any Assumed Liability; or
D. All liabilities of Seller specifically
assumed by the Purchaser or accruing on or after the Closing date
as a result of the Purchaser's ownership and operation of the
Purchased Assets, (except for Excluded Liabilities or as
otherwise previously provided in this Agreement) whether
liquidated, contingent, or otherwise, together with all losses
and expenses that Seller may incur with respect thereto,
including attorneys' fees.
16.4 . Exclusive Remedy. The sole and exclusive remedy of
Indemnified Parties with respect to any and all claims relating
to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Article XVI.
16.5. Third-Party Claims. Promptly following the receipt of
notice of a third-party claim, the party receiving the notice of
the third-party claim shall (a) notify the other party in writing
at the address set forth in Section 19.3 hereof of its existence
setting forth with reasonable specificity the facts and circum-
stances of which such party has received notice and (b) if the
party giving such notice is an Indemnified Party, specifying the
basis hereunder upon which the Indemnified Party's claim for
indemnification is asserted. No failure to give notice of a
claim shall affect the indemnification obligations of the
Indemnifying Party hereunder, except to the extent that the
Indemnifying Party can demonstrate that such failure materially
prejudiced such Indemnifying Party's ability to successfully
defend the matter giving rise to the claim. The Indemnifying
Party shall tender the defense of a third-party claim to the
Indemnified Party.
The Indemnified Party shall not have the right to defend or
settle such third-party claim. The Indemnified Party shall have
the right to be represented by counsel at its own expense in any
such contest, defense, litigation or settlement conducted by the
Indemnifying Party. The Indemnifying Party shall lose its right
to defend and settle the third-party claim if it shall fail to
37
diligently contest the third-party claim. So long as the
Indemnifying Party has not lost its right and/or obligation to
defend and settle as herein provided, the Indemnifying Party
shall have the right to contest, defend and litigate the third-
party claim and shall have the right, in its discretion exercised
in good faith, and upon the advice of counsel, to settle any such
matter, either before or after the initiation of litigation, at
such time and upon such terms as it deems fair and reasonable;
provided that in any event the Indemnifying Party shall consult
with. the Indemnified Party with respect to settling such matter
which decision shall be made by mutual agreement of the
Indemnifying Party and the Indemnified Party, not to be
unreasonably withheld by either. All expenses (including without
limitation attorneys' fees) incurred by the Indemnifying Party in
connection with the foregoing shall be paid by the Indemnifying
Party. Notwithstanding the foregoing, in connection with any
settlement negotiated by an Indemnifying Party, no Indemnified
Party shall be required by an Indemnifying Party to (w) enter
into any settlement that does not include as an unconditional
term thereof the delivery by the claimant or Plaintiff to the
Indemnified Party of a release from all liability in respect of
such claim or litigation, (x) enter into any settlement that
attributes by its terms liability to the Indemnified Party, (y)
consent to the entry of any judgment that does not include as a
term thereof a full dismissal of the litigation or proceeding
with prejudice, or (z) enter into any settlement which would, or
could reasonably be expected to, result in or relate to either a
material nonmonetary obligation or restriction of any kind
whatsoever being imposed upon the Indemnified Party (whether with
respect to the conduct of the Seller or otherwise) .or Damages
other than Damages which are indemnifiable under this Article
XVI; provided, however, that the Indemnifying Party may enter
into the settlements described in (w) and (y) above if (1) such
settlement is not in any way materially damaging or harmful to
the Indemnified Party, and (2) the Indemnifying Party agrees to
remain liable to the Indemnified Party for indemnification with
respect to such claim indefinitely thereafter. No failure by an
Indemnifying Party to acknowledge in writing its indemnification
obligations under this Article XVI shall relieve it of such
obligations to the extent they exist. If an Indemnified Party is
entitled to indemnification against a third-party claim, and the
Indemnifying Party fails to accept the defense of a third-party
claim tendered pursuant to this Section 16.5, or if, in
accordance with the foregoing, the Indemnifying Party shall lose
its right to contest, defend, litigate and settle such a third-
party claim (provided that the Indemnifying Party shall be
entitled to participate, at its expense, with counsel of its
choice, and any settlement shall be approved by the Indemnifying
Party, such approval not to be unreasonably withheld) , the
Indemnified Party shall have the right, without prejudice to its
right of indemnification hereunder, in its discretion exercised
in good faith and upon the advice of counsel, to contest, defend
38
and litigate such third-party claim, and subject to the preceding
sentence may settle such third-party claim, either before or
after the initiation of litigation. If, pursuant to this Section
16.5, the Indemnified Party so defends or (except as hereinafter
provided) settles a third-party claim, for which it is entitled
to indemnification hereunder, as hereinabove provided, the
Indemnified Party shall be reimbursed by the Indemnifying Party
for the reasonable attorneys' fees and other expenses of
defending the third-party claim which is incurred from time to
time, forthwith following the presentation to the Indemnifying
Party of itemized bills for said attorneys' fees and other
expenses.
16.6. Other Indemnification Claims. The Indemnified Party
shall give the Indemnifying Party prompt notice of any
Indemnification Claim (other than a third-party claim) specifying
the basis hereunder upon which the Indemnified Party's claim for
indemnification is asserted. No failure to give notice of a
claim shall affect the indemnification obligations of the
Indemnifying Party hereunder, except to the extent that the
Indemnifying Party can demonstrate that such failure materially
prejudiced such Indemnifying Party's ability to successfully
defend or otherwise respond to the matter giving rise to the
claim. Indemnification by the Indemnifying Party of an
Indemnification Claim shall be provided to the same extent and
manner as a third-party claim.
ARTICLE XVII
17.1. Riaht to Terminate. This Agreement and the
transactions contemplated hereby may be terminated at any time
prior to the Closing by prompt notice given in accordance with
Section 19.3 :
A. By the mutual written consent of Purchaser
and Seller;
B. By either of such parties if the Closing
shall not have occurred on or before February 5, 1999; provided,
however, that the right to terminate this Agreement under this
Section 17.1.B shall not be available to any party whose failure
to fulfill any material obligation under this Agreement has been
the cause of or resulted in the failure of the Closing to occur
on or prior to the aforesaid date;
C. By Purchaser, if a material adverse change
shall have occurred relative to the assets, liabilities,
operations or business prospects of the Purchased Assets or
relative to the Purchased Assets, considered as a whole,
subsequent to the date of execution of this Agreement; or
39
D. By the nonbreaching party, if either party
discovers and discloses a material breach of the other parties'
representations and warranties hereunder on or before the
Closing, and the parties hereto are unable to negotiate an
appropriate resolution, either by a waiver of such breach by the
nonbreaching party, a curing of the breach by the breaching
party, or the negotiation of an adjustment to Purchase Price to
account for such breach.
17.2. Remedies. In the event of a breach of this Agreement,
the nonbreaching party shall not be limited to the remedy of
termination of this Agreement, but shall be entitled to pursue
all available legal and equitable rights and remedies, including
the right to specific performance of this Agreement, and shall be
entitled to recover all of its reasonable costs and expenses
occasioned by such breach and incurred in pursuing all of its
remedies with respect thereto (including, without limitation,
reasonable attorneys' fees) .
ARTICLE XVIII
18.1. Risk of Loss. The risk of loss, prior to the Closing,
by fire, earthquake, hurricane or for any other reason, to the
Purchased Assets between the date of the Agreement and the
Closing, shall be upon; Seller. Seller shall maintain the
existing insurance on all such property at all times prior to the
Closing and shall either promptly take all reasonable steps to
repair, replace and restore any such property which is lost,
destroyed or damaged after the date hereof and prior to the
Closing, or at the Purchaser's option, pay to the Purchaser at
the Closing the proceeds from insurance claims with respect to
such losses; provided, that if Purchaser elects to require Seller
to take reasonable steps to repair replace and/or restore any
lost, destroyed and/or damaged property and Seller is unwilling
to do so, Seller shall have the option, in its sole discretion,
to terminate this Agreement, whereupon neither party shall have
any further obligations to the other hereunder.
ARTICLE XIX
19.1. Exclusivity. Unless and until this Agreement shall be
terminated in the manner prescribed in Article XVII hereto,
Seller will not, and will not permit any of its affiliates,
directors, officers, employees, agents or advisors to, initiate,
pursue or enter into any discussions, negotiations or agreements
with any person or entity contemplating or providing for any
merger, acquisition, purchase or sale of all or substantially all
of the assets of, or the combination of any other business with,
or the change in control of, the Purchased Assets.
40
19.2. Publicity. All press releases and other public
disclosures concerning this transaction shall be made only by
mutual agreement of Purchaser and Seller.
19.3. Notices. All notices required or permitted to be
given hereunder shall be in writing and may be delivered by hand,
by facsimile, by nationally recognized private courier, or by
United States mail. Notices delivered by mail shall be deemed
given three (3) business days after being deposited in the United
States mail, postage prepaid, registered or certified mail,
return receipt requested. Notices delivered by hand, by facsimile
or by nationally recognized private carrier shall be deemed given
on the first business day following receipt; provided, however,
that a notice delivered by facsimile shall only be effective if
such notice is also delivered by hand, or deposited in the United
States mail, postage prepaid, registered or certified mail,
return receipt requested, on or before two (2) business days
after its delivery by facsimile. All notices shall be addressed
as follows:
If to Seller, addressed to:
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, CO 80403
Attention: Jed Burnham
with a copy to:
Holme Roberts & Owen LLP
1401 Pearl Street, Suite 400
Boulder, CO 80302
Attn: Bill Roberts
Telephone: 303-417-8501
Facsimile: 303-444-1063
If to Purchaser, addressed to:
Colorado Sweet Gold, LLC
Attention: John D. Hamilton
8714 State Highway 60
P.O. Box 628
Johnstown, CO 80534
Telephone: 970-587-5131
FAX: 970-587-6536
and
John D. Hamilton
19921 Rawhide Drive
Sonora, CA 95370
Telephone: 209-533-9047
Facsimile: 209-533-0451
and
41
A.L. Gilbert Company
P.O. Box 38
304 N. Yosemite Avenue
Oakdale, CA 95361
Attn: Charles Gilbert
Telephone: 209-847-3542
Facsimile: 209-524-9261
With a copy to:
Wyatt, Martell, Weaver & Rogers LLC
222 West Magnolia Street
Fort Collins, Colorado 80521
Attn: Bill Wyatt, Esq.
Telephone: 970-484-1112
Facsimile: 970-484-1170
and/or to such other respective addresses and/or addressees as
may be designated by notice given in accordance with the
provisions of this Section 19.3.
19.4. Entire Agreement. This Agreement and the instruments
to be delivered by the parties pursuant to the provisions hereof
constitute the entire agreement between the parties. Each
exhibit hereto, and the Disclosure Schedule, shall be considered
incorporated into this Agreement.
19.5. Survival: Nonwaiver. All representations, warranties
and indemnification obligations under this Agreement shall
survive the Closing regardless of any investigation or lack of
investigation by any of the parties hereto, provided, however,
that the representation, warranty and indemnification obligations
of Seller under this Agreement shall not extend beyond the time
periods specified in the last paragraph of Section 16.2 hereof.
In the event of a breach of any representations, warranties or
covenants, the party to whom such representations, warranties or
covenants have been made shall have all rights and remedies for
such breach available to it under this Agreement, Seller's
Ancillary Documents, Purchaser's Ancillary Documents or
otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of, such
party on or before the Closing Date. The failure in any one or
more instances of a party to insist upon performance of any of
the terms, covenants or conditions of this Agreement or to
exercise any right or privilege in this Agreement conferred, or
the waiver by said party of any breach of any of the terms,
covenants or conditions of this Agreement, shall not be construed
as a subsequent waiver of any such terms, covenants, conditions,
right or privileges, but the same shall continue and remain in
full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing
and signed by an authorized representative of the waiving party.
19.6. Annlicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construc-
42
tion, effect and in all other respects by the internal laws of
the State of Colorado applicable to contracts made and wholly to
be performed therein.
19.7. Binding Effect: Benefit. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and
their successors, permitted assigns and legal representatives.
Nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto and their
respective successors, permitted assigns and legal
representatives any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
19.8. pssianability. This Agreement shall not be assignable
by either party without the prior written consent of the other
party.
19.9. Amendments. This Agreement shall not be modified or
amended except pursuant to an instrument in writing executed and
delivered on behalf of each of the parties hereto.
19. 10 Ion-Competition. Seller shall not directly or
indirectly engage in any business that is the same, similar, or
competitive with Purchaser's (limited to the business as sold by
Seller to Purchaser) for a period of five (5) years from date of
Closing within the state of Colorado.
19. 11. Headings. The headings contained in this Agreement
are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
ARTICLE XX
20. 1. Guaranty. ACX Technologies, Inc. ("ACX") joins in
this Agreement solely for the purposes stated in this Article XX.
ACX hereby unconditionally guarantees and agrees to perform each
and every obligation of GTC Nutrition Company contained in this
Agreement.
43
SIGNATURE PAGE
(Asset Purchase Agreement dated February 1, 1999, between GTC
Nutrition Company [Seller] and Colorado Sweet Gold, LLC
[Purchaser] )
PURCHASER:
COLORADO SWEET GOLD, LLC, a
Colorado limited liability company
By
D. Hamilton, Manager
By / 1�!
Charles Gil rt, Manager
SELLER:
GTC NUTRITION COMPANY, a
Colorado corporation
By ✓�
ACX Technologies, Inc. , a Cv1-0-"--air corporation, for
good and valuable consideration, the sufficiency of which is
hereby acknowledged, unconditionally guarantees and agrees to
perform each of GTC Nutrition Company's obligations under this
Asset Purchase Agreement and deeds, conveyances, assignments,
leases, agreements and other documents delivered to Colorado
Sweet Gold, LLC, pursuant to the terms hereof. pp � ^-wp
ACX TECHNOLOGIES, INC. , a �-a^*at/i"
corporation
By � -�L
TON.AG
INDEX OP SCHEDULES
The following index of schedules is made pursuant to the
Asset Purchase Agreement between COLORADO SWEET GOLD, LLC, and
GTC NUTRITION COMPANY. The schedules follow the section
numbering to facilitate location of the schedule within the
Agreement.
Schedule 2.1.A Description of Land
Schedule 2.1.8 Water Rights
Schedule 2.1.C Excluded Improvements
D
Schedule 2.1.X, Excluded Plans and Specifications
Schedule 2.1.F Records and Reports
Schedule 2.1.F(a) Excluded Records and Reports
Schedule 2.1.G Leases
Schedule 2.1.G(a) Excluded Leases
Schedule 2.1.H operating Agreements
Schedule 2.1.H(a) Excluded Operating Agreements
Schedule 2.1.K Excluded Interest in Security
Deposits and Bonds
Schedule 2.1.L Prepaid Accounts
schedule 2.2 Inventory
Schedule 8 Form of Chronopol Facility Lease
LD-1 Facility, a/k/a/ Chronopol
Plant Lease, Inventory Purchase,
Service Agreement, etc. , and
Closing Service and Lease Agreement
Schedule 10.4.A(1) Excluded Employee Benefit Plans
Schedule 10.5.A Acknowledged Litigation,
Arbitrations, or Proceedings, Etc.
Schedule 10.5.C Notices of Business Violations in
the Past Year, etc.
Schedule 10.6.A Exceptions to Seller's compliance
with Environmental Laws and
Environmental Permits
Exception to required Environmental
Permits
Exception to storage, etc. of
Hazardous Materials
Storage tanks and containers of
Hazardous Materials
Exceptions to general disclosures
of Hazardous Materials
Schedule 10.6.B(21 (a) Parking area - environmental
Schedule 10.7.C Description of Land on Which the
Purchased Assets Rely for Their
Operation Other than the Land
HAMILTON.IND
SCHEDULE 2.1.A
Description of Land
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999, by and between
Colorado Sweet Gold, LW and GTC Nutrition Company, Inc.)
Exhibit "A" attached hereto and incorporated herein
by reference.
EXHIBIT "A"
The N1/2 of Section 9, Township 4 North, Range 67 West of the 6th P.M., Weld County,
Colorado, EXCEPTING THEREFROM the following described tracts of land.
1) That part thereof platted as Johnstown Colony;
2) That part thereof platted as Purvis Addition to the Town of Johnstown;
3) A strip of land 80 feet in width through, over and across the NW1/4 of said Section 9,
being 40 feet on each side of the centerline of the Great Western Railway as surveyed and
located, said centerline being described as follows:
Beginning at a point on the North line of said Section 9 which is 1036.3 feet East of the
NW corner; thence 535°43' East, a distance of 51 feet to a point of curve to the right
whose radius is 1910.1 feet; thence on said curve to the right for a distance of 1190.5
feet to a point of tangent; thence 505°00' East on said tangent, a distance of 1551 feet
to the South line of said NW1/4 at a point 1618.5 feet East of the W1/4 corner of said
Section 9 (variation 15° East) , which strip of land was heretofore conveyed by Deed from
Engelbert Sauter to The Northern Construction Company, a Colorado Corporation, which Deed
is dated January 30, 1905, and recorded in the office of the Clerk and Recorder of Weld
County, State of Colorado, in Book 73 at Page 283;
4) A triangular piece of land situated in the NW1/4 of said Section 9, which is described
as follows:
Beginning at a point on the North line of said Section 9 which is 1090 feet East of the NW
corner; thence East on Section line, a distance of 660 feet; thence curving to the
Southwest and to the left with a radius of 455.3 feet for a distance of 660 feet; thence
northerly 40 feet East of and parallel to the centerline of the Great Western Railway for
a distance of 610 feet, more or less, to the North line of said Section 9 and the place of
beginning, which piece of land was heretofore conveyed by Deed from William A. Purvis and
Caroline Sauter to The Great Western Railway Company, a Colorado Corporation, by
correction deed dated April 2, 1917, and recorded in the office of the Clerk and Recorder
of Weld County, State of Colorado, in Book 414 at Page 585;
5) A tract or parcel of land, No. 1 of Colorado Department of Highways Project No.
S0053(2) in the N1/2 of the NE1/4 of said Section 9, as conveyed to the Department of
Highways, State of Colorado, by Deed recorded April 23, 1958, in Book. 1501 at Page 274,
said tract or parcel being more particularly described as follows:
Beginning at a point on the East line of said Section 9, from which point the NE corner of
said Section 9 bears N00°50'30" West, a distance of 100.00 feet; thence along the East
line of said Section 9, N00°50'30" West, a distance of 100.00 feet to the NE corner of
said Section 9; thence along the North line of said Section 9, N89°15'30" West, a distance
of 1583.50 feet; thence S00°35'30" West, a distance of 100.00 feet; thence 589°15'30"
East, a distance of 1586.00 feet, more or less, to the point of beginning;
6) A tract of land lying in the NE corner of said Section 9 which was conveyed to Public
Service Company of Colorado by Deed recorded January 15, 1987, in Book 1142 as Reception
No. 2084905, said tract of land being more particularly described as follows:
Beginning at the NE corner of said Section 9; thence S30°57'42" West, 115.25 feet to the
intersection of the southerly right of way of Colorado State Highway No. 60, and the
westerly right of way of Weld County Road 19, and the true point of beginning; thence
along the westerly right of way of said county road, S00°24'44" E, 288.34 feet; thence
N88°11'48° W, 297.21 feet; thence N01°09'12" E, 284.86 feet, more or less, to the
southerly right of way of said Colorado State Highway No. 60; thence along said southerly
right of way, 588°50'48" E, 289.31 feet to the true point of beginning.
SCHEDULE 2.1.B
The "Water"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between,
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
/43300v2
EHEIBIT "A"
All water and water rights, reservoirs and reservoir rights,
ditches and ditch rights, and easements for any of such rights
appurtenant thereto, as associated with the land conveyed in deed
between GWS International Trading Company and Adolph Coors
Company as recorded on October 4, 1983 in Book 1009 at Page 952
of the records of Weld County, Colorado, including, but not
limited to the following:
1. Hillsborough Division, for 13 cfs from the Big Thompson
River for manufacturing (non-consumptive) use with an
appropriation date of February 1, 1926 located at a
point from which the South quarter corner of Section
21, Township 5 North, Range 68 West of the 6th P.M.,
Larimer County, bears North 15°55'58" West a distance
of 2,892.5 feet, as decreed by Court on February 28,
1972 in Case No. W-440, Water Court for Water Division
1, State of Colorado.
2. All rights established and set forth in the Findings of
Fact, Conclusions of Law, Judgment and Decree, dated
June 21, 1982 in Case No. W-7667-74 in the District
Court, Water Division No. 1, State of Colorado.
3. 13 cfs from Little Thompson Creek for industrial
purposes with an appropriation date of February 1, 1926
located in the SE;NW; of Section 9, Township 4 North,
Range 67 West of the 6th P.M. , at a point which is
North 84°41.78' East, 1853.92 feet from the West
quarter corner of said Section 9, the South line of
which northwest quarter bears South 88°48' East, as
decreed by Court on June 30, 1971 in Case No. W-172 in
the Water Court for Division 1, State of Colorado.
4. 250 units of Colorado-Big Thompson Project water out of
Water Allotment Contract of the Northern Colorado Water
Conservancy District with Adolph Coors Company, dated
December 14, 1984 for 250 acre-feet of water as therein
defined.
5. Eight (8) shares of the capital stock of The
Consolidated Hillsborough Ditch Company aka The
Consolidated Hillsboro Ditch Company presently
represented by Stock Certificate No. 778 and all rights
represented by such stock.
6. Three (3) shares of the capital stock of The
Hillsborough Extension Ditch Company presently
represented by Stock Certificate No. 107 and all rights
represented by such stock.
7. The following well rights as determined and set forth
in the Decree of Court, dated October 2, 1973, Case No.
W-2902 in the Water Court for Water Division 1, State
of Colorado. The names of the wells and legal
description or location thereof are as follows:
Well No. 11-RF150: Beginning at the E; Corner of
Section 9, Township 4 North, Range 67 West of the 6th
P.M. , Weld County, Colorado, thence North 35°11'21.6"
West, 924.35 feet.
Well No. 12-10146: Beginning at the SW Corner of NE;
of Section 9, Township 4 North, Range 67 West of the
6th P.M., Weld County, Colorado, thence North
59°01'51.8" East, 1228.2 feet.
Well No. 13-10147: Beginning at the E: Corner of
Section 9, Township 4 North, Range 67 West of the 6th
P.M. , Weld County, Colorado, thence North 46°46'28"
West, 527.96 feet.
Well No. 14-10148: Beginning at the W; Corner of
Section 9, Township 4 North, Range 67 West of the 6th
P.M. , Weld County, Colorado, thence South 89°43'15"
West, 1517.37 feet.
Well No. 15-RF1075: Beginning at the Eh Corner of
Section 9, Township 4 North, Range 67 West of the 6th
P.M. , Weld County, Colorado, thence North 43°15'11.7"
West, 975.72 feet.
Well No. 16-10838F: Beginning at the SW Corner of NEB
of Section 9, Township 4 North, Range 67 West of the
6th P.M. , Weld County, Colorado, thence North 37°14.6'
East, 669.9 feet.
Well No. 17-2465F: Beginning at the W; Corner of
Section 9, Township 4 North, Range 67 West of the 6th
P.M. , Weld County, Colorado, thence North 88°53.16/
East, 916.97 feet.
8. Any and all other wells located upon the land conveyed
by deed between GWS International Trading Company and
Adolph Coors Company as recorded on October 4, 1983 in
Book 1009 at Page 952 of the records of Weld county,
Colorado.
9. Any and all easements and interests in land conveyed to
the Grantor herein in deed between GWS International
Trading Company and Adolph Coors Company as recorded on
October 4, 1983 in Book 1009 at Page 952 of the records
of Weld County, Colorado in connection with the use and
enjoyment of the water and water rights conveyed
hereby.
SCHEDULE 2.1.C
The "Excluded Improvements"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. The Cogeneration facility located on the land pursuant to a long term ground lease and
owned by Johnstown Cogeneration Company LLC.
2. All oil and gas wells and related surface equipment, storage and treatment facilities,pipe
gathering lines and related materials owned or leased by the lessees of mineral interests in
the land.
3. All equipment owned by Agridine,which equipment is attached to the two large tanks
located south of the warehouse.
#43300v2
SCHEDULE 2.1.D
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
#43300v2
SCHEDULE 2.1.D(a)
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. Pallet rack located at the Golden Property.
2. Those items listed in Schedule 2.1.C to the extent such items may be personal
property
3. Chronopol process control software and computers located in administration building.
4. Several dozen 55-gallon drums of lactide stored in a warehouse at the Johnstown
facility that are part of the Chronopol assets.
#43300v2
SCHEDULE 2.1.E
The "Excluded Plans and Specifications"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. All Plans and Specifications related to the Chronopol facility.
2. All Plans and Specifications related to the NutraFlora/FOS operations.
/43300v2
SCHEDULE 2.1.F
The "Records and Reports"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
All Records and Reports except those specified on Schedule 2.1.F(a).
#43300v2
SCHEDULE 2.1.F(a)
The "Excluded Records and Reports"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. All personnel files and other human resource records.
2. All tax returns of Seller and the Companies and related supporting documents,
accounting records, including receiving ledgers, customer records, vendor invoices.
3. All corporate minute books and checking books and records.
/43300v2
SCHEDULE 2.1.G
The "Leases"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. Len covering telephone switch and related equipment, including:
(a) two data communication routers
(b) Westcom Communications box (in Johnstown)
(c) two DSU/CSU
043300v2
SCHEDULE 2.1.G(a)
The "Excluded JPacP4"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
See Schedule 2.1.H(a)
I43300v2
SCHEDULE 2.1.H
The "Operating Agreements"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC and GTC Nutrition Company)
1) Natural Gas Sales Agreement dated June 3, 1998 between Enserco Energy, Inc. and
GTC Nutrition Company.
2) Services Agreement dated April 1, 1993 and/or March 1, 1996 between Conservation
Services, Inc. and GTC Nutrition Company.
3) Storage and Handling Agreement dated October 10, 1997 between Cargill,
Incorporated and GTC Nutrition Company.
4) Agreement dated May 1, 1997 between Archer Daniels Midland and GTC Nutrition
Company re terminalling services.
5) Purchasing Agreement dated June 1, 1996 between Invetech Moore Bearing and GTC
Nutrition Company.
6) I ease Agreement dated July 2, 1996 between OmniTrax Leasing, Ltd. and GTC
Nutrition Company.
7) Lease for Mohawk Valley Builders dated March 22, 1995 between Mohawk Valley
Builders and Golden Technologies Company, Inc.
8) Services Agreement dated May 1, 1996 between Laidlaw Environmental Services,
Inc. and GTC Nutrition Company.
9) By-Products Agreement dated December 28, 1992 between Golden Technologies
Company, Inc. and Coors Brewing Company, as amended by that certain Amendment
to By-Products Agreement dated March 12, 1996, as further amended by that certain
Second Amendment to Second Amendment to By-Products Agreement with an
effective date March 1, 1997.
10) Starch Supply Agreement dated December 28, 1992 between Golden Technologies
Company, Inc. and Coors Brewing Company, as amended by that certain Amendment
to Starch Supply Agreement dated April 12, 1996, as further amended by that certain
Second Amendment to Starch Supply Agreement with an effective date March 1,
1997.
11) Electric Services Agreement dated May 22, 1995 between Public Services of
Colorado and Golden Technologies Company, Inc.
12) Agreement dated September 29, 1983 between Town of Johnstown and Adolph Coors
Company.
13) Letter Agreement dated June 3, 1996 between GTC Nutrition Company and
Associated Business Products re IKON Office Solutions.
14) Agreement dated July 1, 1997 between Cerestar USA, Inc. and GTC Nutrition
Company re break station.
15) Master Rail Car Lease Agreement No. 3331-83-02 between GTC Nutrition Company
and General Electric Services Corporation, as amended by all amendments and riders
thereto.
16) Firm Gas Transportation Service Agreement dated May 1, 1996 between Public
Service Company and GTC Nutrition Co.
17) Purchasing Agreement dated February 1, 1997 between GTC Nutrition Company and
Wesco.
SCHEDULE 2.1.H(a)
The "Excluded Operating Agreements"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC) and GTC Nutrition Company)
1. All agreements related to the Chronopol business and operations.
2. All agreements related to the NutraFlora (FOS) business and operations.
3. Thermal Supply Agreement dated July 5, 1991, between Texas-Ohio Partners and
Coors Biotech, Inc., as amended.
4. IPase dated July 10, 1991, between Coors Biotech, Inc. and Texas-Ohio Power, Inc.,
as amended.
5. Operation and Routine Maintenance Agreement dated January 24, 1992, between
Texas-Ohio Partners and ZeaGen, Inc., as amended.
I43300v2
SCHEDULE 2.1.K
The "Excluded Security Deposits and Bonds"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. Grain Dealer's Bond No. 159-096-587 dated February 24, 1998, from American
Casualty Company of Reading, Pennsylvania in favor of the Nebraska Public Service
Commission in the amount of$103,000.00
2. Commodity Handler Bond No. 600595569 dated February 7, 1996 from American
Casualty Company of Reading, Pennsylvania in favor of the Commissioner of
Agriculture, State of Colorado in the amount of$182,000.00.
3. Bond No. 123885295 dated February 18, 1993 from American Casualty Company of
Reading, Pennsylvania in favor of Colorado and Southern Railroad et al.
143300v2
SCHEDULE 2.1.L
The "Customer Prepaid Accounts"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
#43300v2
Fob-18-99 09:09A COLORADO SWEET GOLD LLC 970 587 6536 P.02
PREPAYMENTS 2/2/99
CUST. S NAME $ PREPAID APPLIED TO INVOICES REMAINING
2389 BINDER,FLOYD 30,052.00 (15,443.46) 14,608.54
2065 DEVRY DAIRY 30,000.00 (15,850.24) 14,149.76
2143 HANES,BOB 11,500.00 (9,661.41) 1,838.59
5269 SHEA DAIRY 6,800.00 (4,230.45) 2,569.55
2039 STERN,JACK 100,000.00 (41,020.43) 58,979.57
5684 BOOTH LAND 64,680.00 (64,680.00)
243,032.00 (150,885.99) 92,146.0.1
SCHEDULE 2.1.0
M
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1. All Trademarks and goodwill used by Seller and the Companies and Chronopol Inc.
related to their operations.
2. All cash and receivables (both account and note) of Seller immediately prior to
Closing.
3. All technology, know-how and other intellectual property related to the Chronopol
business and operations.
4. FOS (NutraFlora) related assets including inventory, receivables, contract rights.
5. All consignment inventory, including Coors Brewery By-Products, located on the
Land.
#43300v2
SCHEDULE 2.2
The "Inventory"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
143300v2
Feb-18-99 09:09A COLORADO SWEET GOLD LLC 970 687 6636 P.04
GTC Nutrition Company
Corn Ending Inventory
Corn Purchased in January 1999:
Bushels 765,142
Dollars:
Raw Corn 1,717,083.69
Discounts (4,887.58)
Net 1,712,198.10
Average$t 8u $ 2.238
Ending Inventory as of January 31, 1999
Bushels 571,964
Dollars®Market 1,198,284.58
Market Value/8u $ 2.095
Payment Schedule:
Interest Rate 5.500%
Principle Interest Total
January 31, 1999 Balance $1,198,264.58 $ - $1,198,264.58
February 28, 1999 Balance 1,198,284.58 5,055.89 1,203,320.27
February 28 Payment S 599,132.29 $ 8.088.69 $ 604,187.98
March 1,1999 Balance 599,132.29 - 599,132.29
March 31, 1999 Balance 599,132.29 2,798.69 601,930.98
March Payment Due $ 599,132.29 $ 2,798.89 $ 601,930.98
SCHEDULE 5
Allocation of Purchase Price
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
1) Land under Section 2.1.A, Water Rights under Section 2.1.B
Buildings and Improvements under Section 2.1.C $1,300,000
-
Total $1,800,000
#43300v2
SCHEDULE 8
"Leace and Services Agreement"
(Attached to and made a part of Asset Purchase Agreement
dated February 1, 1999 by and between
Colorado Sweet Gold, LLC, and GTC Nutrition Company)
#43300v2
GTC NUTRITION COMPANY
LD-1 FACILITY
JOHNSTOWN, COLORADO
LEASE
THIS LEASE (this "Ince") is made as of the 1st day of February 1999, by and
between Colorado Sweet Gold LLC, as landlord ("Landlord"), whose address is 8714 State
Highway 60, Johnstown, Colorado, and GTC Nutrition Company ("Tenant").
1. Basic Provisions.
a. Tenant Name GTC Nutrition Company
and Contact People: 16000 Table Mountain Parkway
Golden, Colorado 80403
Attn: Darden Coors
b. Development: LD-1 Facility a/k/a Chronopol Plant
Johnstown, Colorado
c. Premises: LD-1 Facility, as further described on Exhibit A
attached hereto.
d. Rent: $1 per year
e. Term: Five years
f. Ince Extension Option: None
g. Commencement Date: February 1, 1999
142827v4
2. LEASE GRANT.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
premises shown on Exhibit A attached hereto and located in Johnstown, Colorado known as
the LD-1 Facility (the "Premises"). Tenant shall also have the right to use parking spaces on
or near the Premises and all equipment, furniture, fixtures and other personal property that
are on the Premises as of January 31, 1999. Tenant shall also have rights of ingress and
egress (i) at all times for pedestrians, automobiles, and trucks of all sizes, to enter into and
exit from the Premises, (ii) at all reasonable times to the administrative building near the
Premises for purposes of accessing the process control computers and software used in
connection with the operations on the Premises, and (iii) at all reasonable times to the
warehouse near the Premises, where Tenant shall be allowed to store several dozen 55-gallon
drums of lactide for a period from the Commencement Date until the date 120 days after the
Commencement Date.
3. USE.
a. Permitted Usc. Tenant may use the Premises for any lawful purpose related to
the uses made of the Premises by Tenant prior to the date hereof. •
b. Compliance with Law. Tenant shall have sole responsibility to ensure that its
use complies with all local land use regulations and zoning laws. Tenant shall comply with
all laws, statutes, ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force (including without limitation, environmental laws)
and with the requirements of any board of fire underwriters or other similar bodies now or
hereafter constituted relating to the Premises.
4. ACCEPTANCE OF PREMISES.
a. Commencement Date. The "Commencement Date" of this Tent- shall be
February 1, 1999.
b. Acceptance of Premises. When Tenant occupies the Premises, Tenant shall be
deemed to have fully accepted the Premises" as is," and in a good state of condition and
repair.
5. TERM; HOLDOVER.
a. Term. The initial term of this I nce (the "Initial Term") shall commence on
the Commencement Date and terminate at midnight on January 31, 2004, unless sooner
terminated hereunder. Tenant may terminate this n se at any time upon 60 days prior
notice to Landlord.
#42827v4 -2-
b. Holdover. After the expiration of the Initial Term hereof, this I nce shall
continue from month to month, if Tenant retains possession of the Premises, at a base rent of
200% of the rent due during the last month before expiration and otherwise on the same
terms and conditions as herein provided, unless and until either Landlord or Tenant
terminates this J Pace by giving the other written notice at any time.
c. Termination. Notwithstanding any contrary statement in this J Pace, in the
event that Tenant (i) sells its Chronopol business that is located on the Premises to any third
party, or (ii) significantly changes the use of the Premises from its past use, Landlord may
terminate this JPace by providing 90 days' written notice to Tenant and the third party.
6. RENT.
Tenant shall pay to Landlord, without offset, deduction, notice or'demand, rent (the
"Rent") for the Premises as follows:
a. Rent. Tenant shall pay the annual sum of$1.00 in advance on or before
February 1 of each year commencing as of February 1, 1999, during the Initial Term hereof.
Rent shall be paid to Landlord in lawful money of the United States of America at the
address of Landlord set forth on page 1 hereof, or such place as Landlord may from time to
time designate in writing. The parties hereby acknowledge that part of the consideration for
this Lease was the sale of the Premises from Tenant to Landlord pursuant to that certain
Asset Purchase Agreement of even date herewith. There shall be no inference from the prior
sentence that Tenant has prepaid credits and is entitled to any credit or refund if this lease is
terminated by its terms during the Term, or that a breach of this JPace has occurred because
of a failure of payment of full consideration by Landlord for the Premises.
b. Charges. All charges resulting from statutes, ordinances, laws, orders or
regulations promulgated by any governmental authority in connection with Tenant's use or
occupancy of the Premises, including without limitation, license, permit and inspection fees,
and compliance with fire safety regulations or requirements shall be paid by Tenant.
7. MAINTENANCE AND UTILITIES. Tenant shall pay for all water, gas power,
sewer charges, electricity, telephone service and all other services and utilities supplied to the
Premises, together with any taxes thereon. If any such services are not separately metered to
Tenant, Tenant shall pay a reasonable proportion of all charges jointly metered with other
space based on Tenant's actual usage as agreed upon by Tenant and Landlord. Tenant shall,
in its sole discretion, have the right to have separate meters, or submeters installed, at its
own expense, for such utilities.
All telecommunications services (voice and data) desired by Tenant shall be obtained
at Tenant's sole cost and risk. Landlord shall have no obligation of any kind or character
with respect to the maintenance or operation of any such telecommunications system. Tenant
may use at no additional cost the existing wiring and cable to the Premises from the
telephone room located in the administrative building near the Premises.
#42827v4 -3-
8. TENANT REPAIRS AND ALTERATIONS.
a. Repairs: Surrender. Tenant shall, upon the expiration or sooner termination of
this Lease, surrender the Premises to Landlord in good condition, broom clean, ordinary
wear and tear excepted. Tenant shall not be obligated to make any repairs, including without
limitation structural repairs or repairs necessitated by fire or other casualty. Notwithstanding
the foregoing, Tenant may repair the Premises at its sole cost and expense. Tenant shall take
the Premises as is and without warrant of habitability by Landlord. Landlord shall have no
duty to make repairs or replace the Premises under any event except for the intentional acts
or gross negligence of Landlord. Landlord shall have no duty to maintain any insurance
covering the Premises.
b. Alterations. Tenant may make any alterations, additions or improvements to
the Premises or change any plumbing or wiring within the Premises without the written
consent of Landlord. Tenant may also perform maintenance on the interior and exterior of
the Premises without Landlord's prior consent. No fixtures shall be removed from the
premises without the prior written consent of Landlord. Tenant shall keep posted on the
Premises, and shall personally serve upon contractors and subcontractors, a notice stating
that Landlord's interest in the Premises shall not be subject to any lien for Tenant's work.
Tenant shall provide Landlord with certificates evidencing that all contractors and
subcontractors have adequate workman's compensation insurance and builder's risk insurance
satisfactory to Landlord. Any such work, including wall covering, paneling and built-in
cabinet work, but excepting movable furniture and trade fixtures, shall at once become a part
of the realty and belong to Landlord and shall be surrendered with the Premises. If Tenant
timely makes the purchase election set forth in Section 13, Tenant shall remove all the
purchased assets within five days after the closing of such purchase.
c. Mechanics' and Materialmen's Liens. Tenant shall have no authority or
power, express or implied, to create or cause any mechanic's or materialmen's lien, charge
or encumbrance of any kind against the Premises. Tenant shall promptly cause any such
liens which have arisen by reason of any work or materials claimed to have been provided to
or undertaken by or through Tenant to be released by payment, bonding or otherwise within
30 days after request by Landlord, and Tenant shall indemnify Landlord against losses
arising out of any such claim. In addition, Tenant shall give such notices and shall cause the
Premises to be posted in accordance with Colorado Revised Statutes 38-22-105, as such may
be amended from time to time, prior to the commencement of any work on the Premises,
whether or not Landlord has consented to such work. Tenant's indemnification of Landlord
contained in this Section 8(c) shall survive the expiration or earlier termination of this Lease.
9. INDEMNITY.
a. General. Tenant shall indemnify, defend and hold harmless Landlord and its
partners, affiliates, officers, directors, shareholders, lenders, employees, agents, successors
and assigns ("Indemnitees") from and against any and all liabilities, claims, fines, penalties,
#42827v4 -4-
costs, damages or injuries to persons, damages to property, losses, liens, causes of action,
suits, judgments and expenses of any nature, kind or description of any person or entity
directly or indirectly arising out of, caused by or resulting from (i) Tenant's construction
upon or use, occupancy or enjoyment of the Premises; (ii) any activity, work or things done,
permitted or suffered by Tenant and its agents or employees in or about the Premises; or (iii)
any breach or default on Tenant's part under the terms of this Ieas,', or any act, omission,
willful misconduct or negligence of Tenant, or any officer, agent, employee, guest, licensee
or invitee of Tenant.
b. Environmental. Tenant shall comply with all Environmental Laws and all
permits currently existing and applicable to the Premises. Tenant shall indemnify, defend
and hold harmless the Indemnities from and against any and all liabilities, claims, fines,
penalties, costs, damages or injuries to persons, damages to property, losses, liens, causes of
action, suits, judgments and expenses of any nature, kind or description of any person or
entity directly or indirectly arising out of, caused by or resulting from Tenant's breach of its
obligations under this Section 9(b). The term "Environmental Laws" shall mean all federal,
state and local laws and regulations relating to pollution or protection of human health or the
environment (including without limitation ambient air, surface water, ground water, land
surface or subsurface strata) as currently in affect or as shall be promulgated, issued,
amended or ordered during the term of this lease, including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601
gt seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 gt sm.), the
National Environmental Policy Act (42 U.S.C. §4321 gt mg.), the Hazardous Materials
Transportation Act (49 U.S.C. §1801 gS n.), the Toxic Substance Control Act (15 U.S.C.
§2601 gt seq.), the Clean Air Act (42 U.S.C. §7401 gt .), the Federal Water Pollution
Control Act (33 U.S.C. §1251 gt 5gq.), the Safe Water Drinking Act (42 U.S.C. §300f et
sat.), the Colorado Hazardous Waste Management Act (Colo. Rev. Stat. Title 25, Article
15), the Colorado Water Quality Control Act (Colo. Rev. Stat. Title 25, Article 8), the
Colorado Air Quality Control Act (Colo. Rev. Stat. Title 25, Article 7), the Colorado
Hazardous Materials Transportation Act of 1987 (Colo. Rev. Stat. Title 25, Article 6), the
Colorado Hazardous Waste Cleanup Act (Colo. Rev. Stat. Title 25, Article 16), the Colorado
Underground Storage Tanks Law (Colo. Rev. Stat. Title 25, Article 18), the Colorado Solid
Waste Disposal Sites and Facilities Law (Colo. Rev. Stat. Title 30, Article 20), and the
Colorado Land Use Act (Colo. Rev. Stat. Title 24, Article 65).
10. ASSIGNMENT AND SUBLETTING.
Tenant may not assign this Iease or sublet any part of the Premises without the prior
written consent of Landlord.
11. EMINENT DOMAIN AND CONDEMNATION.
a. If such portion of the Premises as shall be reasonably required for the conduct
of Tenant's business shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, either party hereto shall have the right, at its option,
142827,4 -5-
within 60 days after notice of said taking, to terminate this J Pace upon 30 days' written
notice or the date of the taking, whichever occurs first.
b. In the event of any taking, this lease shall terminate as to the portion of the
Premises so taken and Landlord shall be entitled to any and all awards and/or settlements
which may be given, and Tenant shall have no claim against landlord for the value of any
unexpired term of this J.PagP. Tenant shall have the right to claim from the condemning
authority a separate award for damage to Tenant's business, a claim for fixtures and
furnishings (to the extent owned by Tenant) and relocation expenses.
12. DEFAULT BY TENANT.
a. Event of Default Defined. The occurrence of the following event shall
constitute a default and breach of this In se by Tenant: the failure by Tenant to observe or
perform any of the covenants, conditions or provisions of this I Pare (excluding any monetary
payment) to be observed or performed by Tenant.
Tenant shall have an opportunity to cure a default under subsection (a) for a
period of 20 days after written notice by landlord to Tenant; provided that if the nature of
Tenant's default is such that more than 20 days is reasonably required for its cure, then
Tenant must commence such cure within said 20-day period and thereafter diligently
prosecute such cure to completion (but in no event, however, shall the curative period exceed
45 days).
b. Remedies. In the event of any such default or breach by Tenant and after any
and all periods during which Tenant may cure such default or breach, Landlord may at any
time thereafter, in its sole discretion, with or without notice or demand and without limiting
Landlord in the exercise of a right or remedy which Landlord may have by reason of such
default or breach:
i. Reenter and attempt to relet or take possession pursuant to legal
proceedings and remove all persons and property from the Premises. In such event,
Landlord may from time to time make such alterations and repairs as may be necessary in
order to relet the Premises or any part thereof for such term (which may be for a term
extending beyond the Term of this Ince) and at such rental and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting,
all rentals received by Landlord from such reletting shall be applied: first, to the payment of
any costs and expenses of such reletting, including alterations and improvements to the
premises, brokerage fees and attorneys' fees; second, the payment of any indebtedness other
than Rent due hereunder from Tenant to Landlord; third, the payment of Rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and applied to payment
of future Rent as the same may become due and payable hereunder. If such rentals received
from such reletting during any month are less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any cash deficiency to landlord. Such deficiency shall
be calculated and paid monthly. No such reentry or taking possession of the Premises by
142827v4 -6-
Landlord shall be construed as an election on its part to terminate this I ease unless a notice
of such intention be given to Tenant or unless the termination thereof be decreed by a court
of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect in writing to terminate this jar for such previous breach.
ii. Terminate this Lease, in which case Tenant shall immediately surrender
possession. In addition to any other remedies which Landlord may have, it shall have the
right to recover from Tenant all damages and expenses, including reasonable attorneys' fees
and the cost of recovering the Premises, that Landlord has sustained because of Tenant's
default. Tenant shall pay upon demand all Landlord's costs, charges and expenses, including
fees of counsel, whether or not suit is filed, incurred in connection with the recovery under
this I nce or for any relief against Tenant.
13. PURCHASE OPTION; PERSONAL PROPERTY TAXES.
Landlord hereby grants to Tenant an option (the "Option") at any time during the
term of this J pace to purchase and remove all furnishings, equipment, trade fixtures, and
other removable equipment (collectively the "Option Assets") located on the Premises or
used in connection therewith as of the date of this In se. The Option may be exercised by
Tenant providing written notice thereof at least 30 days prior to the scheduled closing date.
The purchase price for the Option Assets shall be their fair market value as of the date the
exercise notice is given. Fair market value shall be determined by agreement of the parties,
or if the parties cannot so agree then it shall be determined by an appraisal jointly agreed to
by the parties. If the parties cannot agree upon a single appraiser, then the appraisal shall be
the average of three appraisals, one performed by a party selected by Landlord, one by
Tenant, and one by the other two appraisers. In conducting these appraisals, each appraiser
should calculate a value of the Option Assets as if the Option Assets were being sold by their
owner pursuant to an orderly liquidation of the Option Assets. At closing under the Option
Tenant shall pay the purchase price to Landlord in immediately available funds and Landlord
shall deliver title to the Option Assets free and clear of any liens arising by, through or
under Landlord. For those periods during which the Option Assets are owned by Landlord,
Landlord shall pay before delinquency any taxes on the Option Assets. If Tenant exercises
the Option and removes any fixtures, Tenant shall restore the Premises to a safe and orderly
condition.
14. NOTICE.
All notices shall be in writing sent by either CO nationally recognized overnight
courier, (ii) certified mail, postage prepaid, return receipt requested, or (iii) by facsimile;
addressed as set forth below, or to such other place as either party may designate by notice:
To Landlord at: 8714 State Highway 60
Johnstown, CO 80534
azax7vr -7-
To Tenant at: do ACX Technologies Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attn: Jill Sisson, Esq.
Facsimile No.: (303) 271-7055
Notice shall be deemed given upon posting of same with the overnight courier service or in
an official depository of the United States Postal Service, delivery charges prepaid, or upon
completed, error-free transmission of same by facsimile machine, provided that no notice of
either party's change of address shall be effective until three days after the addressee's actual
receipt thereof.
14. GENERAL PROVISIONS.
a. The waiver by Landlord or Tenant of any term, covenant or condition herein
contained shall not be deemed to be a waiver of any subsequent breach. The acceptance or
payment of Rent shall not be deemed to be waiver of any default by Tenant or Landlord.
b. The headings to the section of this Lease shall have no effect upon the
construction or interpretation of any part hereof.
c. Time is of the essence.
d. The covenants and conditions herein contained bind the heirs, successors,
executors, administrators and assigns of the parties hereto.
e. Neither Landlord nor Tenant shall record this Lease, and any such recording
without the other party's prior written consent shall constitute a material breach of this
T Pace,
f. Upon Tenant paying the Rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to be observed
and performed hereunder, Tenant shall have quiet possession of the Premises for the entire
Term hereof, subject to all the provisions of this Lease.
g. No remedy or election hereunder shall be deemed exclusive but shall,
whenever possible, be cumulative with all other remedies at law or in equity.
h. This I Pace shall be governed by the laws of the State of Colorado.
i. In the event of any action or proceeding brought by either party against the
other under this I ease, the prevailing party shall be entitled to recover court costs and
attorneys' fees. In addition, should it be necessary for Landlord or Tenant to employ legal
counsel to enforce any of the provisions herein contained, party losing action agrees to pay
all attorneys' fees and court costs reasonably incurred.
142&27v4 -8-
j. This J ease contains all of the agreements of the parties hereto with respect to
any matter covered or mentioned in this I Page, and no prior agreements or understandings
pertaining to any such matters shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by the parties hereto
or their respective successors in interest.
k. This Lease may be executed in one or more counterparts, each of which will
be deemed an original, and all of which together will constitute one and the same instrument.
Signatures transmitted by facsimile shall be legal and binding for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Jnse as of the date
first above written.
LANDLORD: TENANT:
Colorado Sweet Gold, LLC GTC Nutrition Company
16000 Table Mountain Parkway
Golden, Colorado 80403
By: By: 1)0114v,.
Its: Its: fi}Ur zn -Reclt
#42127v4 -9-
EXHIBIT A
to 'nab between
GTC NUTRITION COMPANY
and
COLORADO SWEET GOLD, LLC
DESCRIPTION OF PREMISES
That portion of the Land (as defined in the Asset Purchase Agreement of even date herewith
between Landlord and Tenant) currently used by Tenant for its Chronopol business.
•
142121,4 A-1
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is made and entered into as of February
1, 1999 by and between GTC Nutrition Company ("GTC"), a Colorado corporation, and
Colorado Sweet Gold, LLC, a Colorado limited liability company ("CSG").
RECITALS
A. GTC and CSG are parties to an Asset Purchase Agreement (the "Purchase
Agreement") of even date herewith pursuant to which GTC will sell to CSG certain
land and improvements in Johnstown Colorado as described on Schedule 2.1.A to the
Purchase Agreement (the "Johnstown Property") and a leasehold interest in certain
real property in Golden, Colorado (the "Golden Property"), further described in the
Purchase Agreement. The Johnstown Property and the Golden Property are
collectively referred to as the "Property").
B. GTC currently receives NutraFlora at and distributes NutraFlora from the Property.
C. Subsequent to CSG's purchase of the Property from GTC, CSG desires to obtain from
GTC and GTC desires to provide to CSG certain warehousing services and secure
space to carry on its NutraFlora operations.
NOW, THEREFORE, in consideration of the above Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Agreement to Provide Warehousing Services and Space. GTC agrees to
provide certain warehousing services for CSG at the Golden Property, and CSG agrees to
allow GTC to conduct additional warehousing services for its NutraFlora products at the
Golden Property and to provide certain customer service and training services to GTC during
the Term of this Agreement.
2. Term. The Term of this Agreement ("Term") shall commence on the day
CSG purchases the Property from GTC ("Commencement Date") and shall expire upon the
earlier of the following: (a) 60 days from the Commencement Date or (b) such shorter
period of time as it may take for GTC to secure an alternative warehouse facility.
3. Payment. GTC shall pay to CSG the monthly sum of$1,000 for the use of
the Golden Property.
4. Sharing of Labor. The parties contemplate that the bulk of the warehousing
services will be performed by an employee of GTC who will be working on the Golden
Property. An employee of CSG will be performing services for the benefit of GTC at the
Johnstown Property related to brewery by-products. CSG and GTC agree to direct such
142988.V4
employees to perform the functions described herein. The parties further agree that no cross-
reimbursement of employment related costs is necessary in connection with such services.
5. Taxes. GTC shall pay all sales taxes related to the purchase and sale of the
NutraFlora. CSG shall pay all real estate taxes on the Property.
6. Aefault: Remedies. Should either party fail to perform any material covenant
or comply with any material condition required to be performed or complied with by such
party within ten days after written demand by the other party to perform or comply, said
non-performing party shall be deemed to be in default of its obligations under this
Agreement. In the event such default is not timely cured, the non-defaulting party shall be
entitled to terminate this Agreement upon ten additional days' written notice and pursue any
remedies available to it at law or in equity. In no event, however, shall CSG be liable to
GTC for any consequential damages, damages for lost business, lost profits, or opportunities
therefor, or business interruption, it being agreed that CSG shall only be liable for the value
of goods damaged because of gross negligence or intentional misconduct by CSG, its
employees or agents.
7. Miscellaneous.
A. Force Majeure. The obligations of CSG to supply In-Out Services and/or
Space hereunder shall be suspended for so long as CSG is prevented from performing such
obligations by an act of God, strike, fire, flood, explosion, or any other similar cause (a
"Force Majeure"). The obligations of GTC to make payments hereunder with respect to
any specific In-Out Services and/or Space shall be suspended during any period in which
such In-Out Services and/or Space are so suspended. The foregoing notwithstanding, no
occurrence or circumstance shall give rise to a condition of Force Majeure unless such
occurrence or circumstance is not reasonably within the control of and could not, in the
exercise of reasonable diligence, have been avoided by the affected party. Each party shall
use its best efforts to cause all conditions of Force Majeure to be alleviated as soon as is
reasonably possible, but nothing herein shall be construed to require the settlement of strikes
or labor disputes in any manner or at any time other than in the manner and at the time
which is within the discretion of the party affected thereby.
B. entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties, both written and oral, regarding the subject
matter of this Agreement. This Agreement may not be amended nor any rights hereunder
waived except by an instrument in writing signed by the party to be charged with such
amendment or waiver and delivered by such party to the party claiming the benefit of such
amendment or waiver.
C. Parties in Interest. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and assigns, and nothing
contained in this Agreement, express or implied, is intended to confer upon any other person
#42988.V4 2
or entity any benefits, rights or remedies. Neither party may assign this agreement without
the other parties' consent, which consent shall not be unreasonably withheld.
D. References. References made in this Agreement, including the use of a
pronoun, shall be deemed to include where applicable, masculine, feminine, singular or
plural, individuals, partnerships or corporations.
E. Language. The language in all parts of this Agreement shall be construed
according to its fair meaning and not strictly for or against GTC or CSG. The caption of
each section is added as a matter of convenience only and shall be considered of no effect in
the construction of any provision of this Agreement.
F. Future Liability. Termination of this Agreement shall not release any
party hereto from any liability or obligation hereunder resulting from any acts, omissions or
events happening prior to such termination or expiration, or thereafter in case by the terms of
this Agreement it is provided that anything shall or may have to be done after termination or
expiration hereof.
G. Relationship. Nothing contained in this Agreement shall be deemed or
construed by the parties or by any third person or court to create the relationship of principal
and agent or of partnership or of joint venture or of any association between GTC and CSG,
and neither the method of computation of payments nor any other provisions contained in this
Agreement nor any acts of the parties shall be deemed to create any relationship between
GTC and CSG other than the relationship of a provider and user of the In-Out Services and
the Space for the purposes set forth herein.
H. Counterparts. This Agreement may be executed by the parties in any
number of counterparts, each of which shall be deemed an original instrument but all of
which together shall constitute but one and the same instrument.
I. Notices. All notices and communications required or permitted under this
Agreement shall be in writing, and any communication or delivery hereunder shall be
deemed to have been duly made when personally delivered, or if sent by facsimile or U.S.
mail, when received in legible form during normal business hours, by the party charged with
such notice and addressed as set forth below:
If to GTC:
ACX Technologies
16000 Table Mountain Parkway
Golden, CO 80403
Attention: Jill Sisson, Esq.
Telephone: (303) 271-7040
Facsimile: (303) 271-7055
If to CSG:
I42988.V4 3
John Hamilton
19921 Rawhide Drive
Sonora, CA 95370
Telephone:
Facsimile: 209-533-0451
and
A.L. Gilbert Company
P.O. Box 38
304 N. Yosemite Avenue
Oakdale, CA 95361
Attention: Charles Gilbert
Telephone: 209-847-3542
Facsimile: 209-524-9261
Either party may, by written notice so delivered to the other party, change the address or
individual to which delivery shall thereafter be made.
J. Governing Law. This Agreement and the transactions contemplated hereby
shall be construed in accordance with, and governed by, the laws of the State of Colorado.
I42988.V4 4
EXECUTED as of the date first above written.
GTC Nutrition Company, a Colorado
corporation
By: ,—v41,,12.% X /
Its: a hyne, -ir -G;,G
Colorado Sweet Gold, a Colorado limited
liability company
By: 44t C L LJ—
Its: 49:14 t—
/42988.V4 5
WARRANTY DEED
THIS DEED, made this 1st day of February, 1999, between GOLDEN TECHNOLOGIES
COMPANY, INC., a Colorado corporation, ("Grantor"), 16000 Table Mountain Parkway, Golden,
Colorado 80403, and COLORADO SWEET GOLD, LLC, a Colorado limited liability company, whose
legal address is 8714 State Highway 60, P.O. Box 628, Johnstown, Colorado 80534, of the County of
Weld, State of Colorado ("Grantee").
WITNESSETH, that the Grantor, for and in consideration of good and valuable consideration
and ONE MILLION THREE HUNDRED THOUSAND DOLLARS slIathe receipt and
sufficiency of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these
presents does grant, bargain, sell, convey, and confirm unto the Grantee, its successors and assigns
forever, all the real property,together with improvements, if any, situate,lying, and being in the County
of Weld, State of Colorado, described as follows:
The property described on Exhibit "A" attached hereto and incorporated herein by
reference,
also known as: 8714 State Highway 60, Johnstown, Colorado 80534.
TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or
in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and
profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the Grantor,
either in law or in equity, of, in, and to the above-bargained premises, with the hereditaments and
appurtenances.
TO HAVE AND TO HOLD the said premises above bargained and described with the
appurtenances unto the Grantee, its successors and assigns forever. And the Grantor, for itself and its
successors and assigns, does covenant, grant, bargain, and agree to and with the Grantee, its successors
and assigns, that at the time of the ensealing and delivery of these presents, it is well seized of the
premises above conveyed,has good,sure,perfect, absolute,and indefeasible estate of inheritance, in law,
in fee simple, and has good right, full power, and authority to grant, bargain, sell, and convey the same
in manner and form as aforesaid, and that the same are free and clear from all former and other grants,
bargains, sales, liens, taxes, assessments, encumbrances, and restrictions of whatever kind or nature
soever, except and subject to easements, reservations, rights-of-way and other matters of record as more
specifically set forth on Exhibit"B" attached hereto and incorporated herein by reference(the "Permitted
Encumbrances"); and real property taxes for the year 1999 to be prorated pursuant to agreement between
Grantor and Grantee, and subsequent years taxes.
Subject to the Permitted Encumbrances,the Grantor will WARRANT AND FOREVER DEFEND
the above-bargained premises in the quiet and peaceable possession of the Grantee, its successors and
assigns, against all and every person or persons lawfully claiming the whole or any part thereof.
IN WITNESS WHEREOF, the Grantor has executed this Deed on the date set forth above.
GOLDEN TECHNOLOGIES COMPANY, INC.,
a Colorado corporation
BySTATE OF OF COLORADO )
COUNTY OF
CFC s 6") as.
The foregoing instrument was subscribed, sworn to, and acknowledged before me this 1st day
of February, 1999, by it f farts H- Co()YS , as Qr•,2S i cLs-,"F- of Golden
Technologies Company, Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires: 3 - )- a 000
Notary Public
EXHIBIT "A"
The N1/2 of Section 9, Township 4 North, Range 67 West of the 6th P.M. , Weld County,
Colorado, EXCEPTING THEREFROM the following described tracts of land.
1) That part thereof platted as Johnstown Colony;
2) That part thereof platted as Purvis Addition to the Town of Johnstown;
3) A strip of land 80 feet in width through, over and across the NW1/4 of said Section 9,
being 40 feet on each side of the centerline of the Great Western Railway as surveyed and
located, said centerline being described as follows:
Beginning at a point on the North line of said Section 9 which is 1036.3 feet East of the
NW corner; thence S35°43' East, a distance of 51 feet to a point of curve to the right
whose radius is 1910.1 feet; thence on said curve to the right for a distance of 1190.5
feet to a point of tangent; thence S05°00' East on said tangent, a distance of 1551 feet
to the South line of said NWl/4 at a point 1618.5 feet East of the W1/4 corner of said
Section 9 (variation 15° East) , which strip of land was heretofore conveyed by Deed from
Engelbert Sauter to The Northern Construction Company, a Colorado Corporation, which Deed
is dated January 30, 1905, and recorded in the office of the Clerk and Recorder of Weld
County, State of Colorado, in Book 73 at Page 283;
4) A triangular piece of land situated in the NW1/4 of said Section 9, which is described
as follows:
Beginning at a point on the North line of said Section 9 which is 1090 feet East of the NW
corner; thence East on Section line, a distance of 660 feet; thence curving to the
Southwest and to the left with a radius of 455.3 feet for a distance of 660 feet; thence
northerly 40 feet East of and parallel to the centerline of the Great Western Railway for
a distance of 610 feet, more or less, to the North line of said Section 9 and the place of
beginning, which piece of land was heretofore conveyed by Deed from William A. Purvis and
Caroline Sauter to The Great Western Railway Company, a Colorado Corporation, by
correction deed dated April 2, 1917, and recorded in the office of the Clerk and Recorder
of Weld County, State of Colorado, in Book 414 at Page 585;
5) A tract or parcel of land, No. 1 of Colorado Department of Highways Project No.
S0053 (2) in the Nl/2 of the NE1/4 of said Section 9, as conveyed to the Department of
Highways, State of Colorado, by Deed recorded April 23, 1958, in Book. 1501 at Page 274,
said tract or parcel being more particularly described as follows:
Beginning at a point on the East line of said Section 9, from which point the NE corner of
said Section 9 bears N00°50'30" West, a distance of 100.00 feet; thence along the East
line of said Section 9, N00°50'30" West, a distance of 100.00 feet to the NE corner of
said Section 9; thence along the North line of said Section 9, N89°15' 30" West, a distance
of 1583.50 feet; thence S00°35'30" West, a distance of 100.00 feet; thence S89°15'30"
East, a distance of 1586.00 feet, more or less, to the point of beginning;
6) A tract of land lying in the NE corner of said Section 9 which was conveyed to Public
Service Company of Colorado by Deed recorded January 15, 1987, in Book 1142 as Reception
No. 2084905, said tract of land being more particularly described as follows:
Beginning at the NE corner of said Section 9; thence S30°57'42" West, 115.25 feet to the
intersection of the southerly right of way of Colorado State Highway No. 60, and the
westerly right of way of Weld County Road 19, and the true point of beginning; thence
along the westerly right of way of said county road, S00°24'44" E, 288.34 feet; thence
N88°11'48" W, 297.21 feet; thence N01°09' 12" E, 284 .86 feet, more or less, to the
southerly right of way of said Colorado State Highway No. 60; thence along said southerly
right of way, S88°50'48" E, 289.31 feet to the true point of beginning.
EXHIBIT "B"
Exceptions 1 through 7 intentionally deleted.
8. Rights inferred or easement in favor of the United States, State of
Colorado, or the Public which exist or are claimed to exist in and over
the present and past bed; banks, and water of the Little Thompson
River.
9. Right of way for The Great Western Intake No. 1 as evidenced by
Statement filed in the Weld County Clerk & Recorder's Office, insofar
as the same may affect subject property.
10. Right of way for State Highway No. 60 over and along the North line of
subject property.
11. Right of way for Weld County Road 46 1/2 along the South line of
subject property as evidenced by various instruments of record.
12. Rights of way and easements as now established and used, including but not limited
to roads, ditches, pipe lines, power lines, telephone lines and reservoirs.
13. Right of way for county roads 30 feet wide on either side of section and township
lines as established by Order of the Board of County Commissioners for Weld County,
recorded October 14, 1989, in Book 86 at Page 273 .
14. Easement for ditch relocation purposes as granted to the Department of Highways,
State of Colorado, by instrument recorded April 23, 1958, in Book 1501 at Page
276.
15. Right of way for pipe line purposes as granted to Panhandle Eastern Pipe Line
Company by instrument recorded June 10, 1974, in Book 716 as Reception No.
1638306.
16. Right of way easement for pipe line purposes as granted to Panhandle Eastern Pipe
Line Company by instrument recorded February 28, 1983, in Book 990 as Reception No.
1918745.
17. Right of way for pipe line purposes as granted to Panhandle Eastern Pipe Line
Company by instrument recorded April 5, 1984, in Book 1025 as Reception No.
1961832.
18. Overhead Utility Line Easement Agreement between Coors Biotech, Inc. , a Colorado
Corporation, and Public Service Company of Colorado, a Colorado Corporation,
recorded May 5, 1988, in Book 1195 as Reception No. 2140166.
19. Natural Gas Pipeline Easement Agreement between Coors Biotech, Inc. , a Colorado
Corporation, and Associated Natural Gas, Inc. , a Colorado Corporation, recorded July
20, 1988, in Book 1203 as Reception No. 2148762.
20. Utility Line Easement Agreement between Coors Biotech Products Company, a Colorado
Corporation, and Public Service Company of Colorado, a Colorado Corporation,
recorded August 29, 1989, in Book 1242 as Reception No. 2190070.
21. Natural Gas Pipeline Easement Agreement between Coors Biotech Products Company, a
Colorado Corporation, and Associated Natural Gas, Inc. , a Colorado Corporation,
recorded April 16, 1990, in Book 1261 as Reception No. 2210867.
22. Easement Agreement between Coors Biotech, Inc. , a Colorado Corporation, and U.S.
West Communications, Inc. , a Colorado Corporation, recorded March 11,1991, in Book
1292 as Reception No. 2243558.
23 . Easement for sanitary sewer line purposes as granted to the Town of Johnstown, a
Municipal Corporation, by instrument recorded February 28, 1995, in Book 1481 as
Reception No. 2428241.
24. Reservation as contained in Patent recorded March 3, 1882, in Book 20 at Page 357
(which covers the NE1/4 or said Section 9, said reservation being as follows:
Excluding and excepting "All Mineral Lands" should any such be found to exist, but
this exclusion and exception shall not be construed to include coal and iron land.
25. Reservation as contained in Patent recorded September 13, 1883, in Book 36 at Page
393, which covers the NW1/4 of said Section 9, said reservation being as follows:
Excluding and excepting "All Mineral Lands" should any such be found to exist, but
this exclusion and exception shall not be construed to include coal and iron land.
26. Reservation of the right of way for said railway in width, and in manner and form as
provided by the acts of congress in relation thereto. It is further agreed that
whenever it is required by law that the company shall fence the road, such fence
along the line of the road upon the land hereby conveyed, shall be erected and
maintained by the party of the second part, their heirs and assigns; and this
agreement is hereby declared a covenant running with the land, as contained in
instrument from Denver Pacific Railway and Telegraph Company recorded February 3,
1879, in Book 25 at Page 29, and any interests therein, assignments or conveyances
thereof. (affects NE1/4)
27. Oil and Gas Lease from The Great Western Sugar Company, a Delaware Corporation, to X
O Exploration, Inc., a Colorado Corporation, recorded January 10, 1973, in Book 683
as Reception No. 1605092, and any interests therein, assignments or conveyances
thereof. Said Lease extended by Affidavit of Extension of Oil and Gas Leases by
Production recorded October 18, 1989, in Book 1246 as Reception No. 2194930.
28. The Johnstown Community Oil and Gas Lease to X O Exploration, Inc., recorded
December 17, 1981, in Book 955 as Reception No. 1877330, and any interests therein,
assignments or conveyances thereof.
29. Mineral Deed from Adolph Coors Company, a Colorado Corporation, to Coors Energy
Company, a Colorado Corporation, conveying all oil, gas and other minerals and
mineral rights underlying and/or appurtenant to the subject property, recorded
February 13, 1984, in Book 1020 as Reception No. 1955974, together with the right of
ingress and egress for the purpose of exploring, developing and operating said lands
for oil, gas and other minerals and for producing and marketing the same therefrom;
and any interests therein, assignments or conveyances thereof.
30. Contract between The Extension Irrigation Company, a mutual ditch corporation, and
The Great Western Sugar Company, recorded June 27, 1947, in Book 1206 at Page 549,
and as modified by instruments recorded June 27, 1947, in Book 1206 at Page 557;
April 21, 1953, in Book 1355 at Page 177; April 21, 1953, in Book 1355 at Page 188;
April 21, 1953, in Book 1355 at Page 192; October 14, 1953, in Book 1371 at Page
203.
31. Agreement between Lillian O. Becker and Joe W. Becker and The Great Western Sugar
Company, a New Jersey Corporation, recorded October 14, 1953, in Book 1372 at Page
203, as Reception No. 1165563.
32. Agreement between The Great Western Sugar Company and The Great Western Railway
Company recorded July 9, 1985, in Book 1076 as Reception No. 2016333.
33. Agreement between The Great Western Sugar Company and The Great Western Railway
Company recorded July 18, 1985, in Book 1077 as Reception No. 2017575.
34. Agreement to Waive Rights in Connection with Attachment to Real Property between
Solar Turbines Incorporated, Lessor; Texas-Ohio Power, Inc., Lessee, and
Coors-Biotech, Inc., Party in Interest, recorded November 12, 1991, in Book 1317 as
Reception No. 2268954; also filed in the UCC records under Filing No. U243717. •
35. Easement dated September 23, 1929, granting Colorado Wyoming Gas Company, a Delaware
Corporation, the right to construct, maintain and operate a 6" pipe line for the
transportation of gas.
36. Agreement dated June 27, 1963, granting the Town of Johnstown, a body politic and
corporate of the State of Colorado, the right to construct, maintain and operate a
sanitary sewer line.
37. Right-of-way Agreement dated May 5, 1924, granting the Town of Johnstown, a body
politic and corporate of the State of Colorado, the right to maintain and operate a
municipal sewer main or conduit.
38. Agreement dated September 8, 1949, granting G.C. Binder a right of way for an
irrigation ditch.
39. Easement for pipe line purposes granted to Natural Gas Associates by instrument
recorded October 25, 1985, in Book 1089 at Reception No. 2029807.
40. Easement for pipe line purposes granted to Natural Gas Associates by instrument
recorded July 20, 1988, at Reception No. 2148780.
41. An easement granted to Public Service Company of Colorado by instrument recorded
January 15, 1987, in Book 1142 at Reception No. 2084906.
,
REAL PROPERTY TRANSFER DECLARATION
GENERAL INFORMATION
Purpose The real properly traafer declaration provides cant=information tote eamry amen=to help mane fair and uniform aawamema for all property
for property tax purposes. Refer to C.R.S.{39-14402(4).
Regolrementa: All conveyance donne= (deeds) abject to to doeumentuy fee Admitted to the eamy cleat and recorder for recantation must be
accompanied by a real property transfer declaration. This declaration mu the completed and signed by the grantor(order)or grantee(dryer). Refer to C.R.S.
{39-14-1020)W.
Penalty for Noncomplanea Whenever a real property transfer declared=does not accompany S deed,the cleat and recorder notifies the aunty assessor,
who will said a notice to the buyer requesting that to declaration be returned within thirty days after to not=is mailed.
If the real property declaration is not returned to the=my men=within the 30 days of=doe,the assessor may impose a penally of{2f or.025%(.00025)
of to sale price,whichever is greater. This pcenky may be imposed for say subsequent year that the buyer fails to submit the declaration until the property
Is sold. Refer to C.R.S.{39441020)0d.
Confidentiality: The assessor is required to make the real popery hinder declaration available for Speed=to the buyer. However,it le only available to
to seller if the seller filed to declaration. Infamatlon derived Rom the real property tinder declared=is available to any taxpayer or any meet of such
to paye,abject to confidentiality requirements as provided by law. C.R.S.{{39.3-1213 and 39-13-102O(c).
1. Address or legal description of the real property sold: Please do note=P.O.box
numbers.
See Exhibit "A" attached hereto
2. Type of property purchased: (1 Slagle Famay Residential[1 Townhame[1 Condominium[1 MuSUnk Rea
[1 Commercial [1 Industrial [1 Agricultural (1 Mixed Use (j vacant lead []Other
3 . Date of closing:
February 1, 1999
4. Total sale price: Including all real and personal property.
$1,300, 000
5. Was any personal property included in the transaction? Personal property would include,
but is not limited to,carpeting,drapes,free-standing appliance.,equipment,inventory,Ante. If to parsecs!property Is not listed,the entire
Ppce will be assumed to be for the real property as peril 39-13-102,C.R.S.
per Yes [ ] No If yes, t a roximate value r- '
Describe / �,,I C�4Be / Ca
6. Did total sale price include a trade or exchange of additional real or
personal property? rya,give to approximate value oft=goods or services as of to date of closing.
[ ] Yes [x] No If yes, value $
If yes, does this transaction involve a trade under IRS Code Section 1031?
[ ] Yes [ ] No
7. Was 100% interest in the real property purchased? Madr ono•Wooly a prial interest is being
purchased.
[x] Yes [ ] No If no, interest purchased %
8. Is this a transaction among related parties? Indicate whether the buyer or seller are related. Related
paNes include peaces within the same family,business sifuiata,or affiliated corporations.
[ ] Yes [x] No
9. Check any of the following that apply to the condition of the improvements
at the time of purchase.
[ ] New [ ] Excellent [ ] Good [ ] Average Fair
[ ] Poor [ ] Salvage
•
IF THE PROPERTY IS FINANCED, PLEASE COMPLETE THE FOLIAN4ING:
10. Total amount financed: $ + O
11. Type of financing (check all that apply) :
[ ] New [ ] Assumed [ ] Seller [ ] Third Party
[ ] Combination: Explain
12 . Terms:
[ ] Variable: Starting interest rate
[ ] Fixed: Interest rate
Length of time: years
Balloon payment: [ ] Yes [ ] No
Amount $ Due date
13 . Please explain any special terms, seller concessions, or financing and any
other intonation that would help the assessor understand the tens of
sale.
FOR PROPERTIES OTHER THAN RESIDENTIAL (RESIDENTIAL IS DEFINED AS
SINGLE-FAMILY DETACHED, TOWNHOMES, AND CONDOMINIUMS) , PLEASE
COMPLETE QUESTIONS. 14-16 IF APPLICABLE. OTHERWISE, SKIP TO
QUESTION 17 TO COMPLETE.
14. Did the purchase price include a franchise or license fee?
[ ] Yes No
If yes, f anchise or license fee value $
15. Did the purchase price involve an installment land contract?
[ ] Yes [x] No If yes, date of contract
16. If this was a vacant land sale, was an on-site inspection of the property
conducted by the buyer prior to the closing? [ ] Yes [ ] NO
REMARKS (please include?, additional info tion concerning the sale you may
feel is important) : ?d 4 uC ,,� p/ eX J/e arm a'e
17. SIGNED this 1st dag of February, 1999. Beier the day,mate.ad year;bare at ae as of to paates
to this tanaaeiicn sign ee d«imaq and mebtde aa.ddma aad■daytime pbae number. Please designate buyer or
seller.
aS612--114111:11---
gnature of Grantee (Buyer) [x
Mailing Address and Daytime Telephone
P.O. Box 628
Johnstown, CO 80534
2
EXHIBIT "A"
The NS/2 of Section 9, Township 4 North, Range 67 West of the 6th P.M., Weld County.
Colorado, EXCEPTING THEREFROM the following described tracts of land.
1) That part thereof platted as Johnstown Colony;
2) That part thereof platted as Purvis Addition to the Town of Johnstown;
3) A strip of land 80 feet in width through, over and across the NW1/4 of said Section 9,
being 40 feet on each side of the centerline of the Great Western Railway as surveyed and
located, said centerline being described as follows:
Beginning at a point on the North line of said Section 9 which is 1036.3 feet East of the
NW corner; thence S3S•43' East, a distance of 51 feet to a point of curve to the right
whose radius is 1910.1 feet; thence on said curve to the right for a distance of 1190.5
feet to a point of tangent; thence S05.00' East on said tangent, a distance of 1551 feet
to the South line of said NW1/4 at a point 1618.5 feet East of the W1/4 corner of said
Section 9 (variation 15• East), which strip of land was heretofore conveyed by Deed from
Engelbert Sauter to The Northern Construction Company, a Colorado Corporation, which Deed
is dated January 30, 1905, and recorded in the office of the Clerk and Recorder of Weld
County, State of Colorado, in Book 73 at Page 283;
4) A triangular piece of land situated in the NW1/4 of said Section 9, which is described
as follows:
Beginning at a point on the North line of said Section 9 which is 1090 feet East of the NW
corner; thence East on Section line, a distance of 660 feet; thence curving to the
Southwest and to the left with a radius of 455.3 feet for a distance of 660 feet; thence
northerly 40 feet East of and parallel to the centerline of the Great Western Railway for
a distance of 610 feet, more or less, to the North line of said Section 9 and the place of
beginning, which piece of land was heretofore conveyed by Deed from William A. Purvis and
Caroline Sauter to The Great Western Railway Company, a Colorado Corporation, by
correction deed dated April 2, 1917, and recorded in the office of the Clerk and Recorder
of Weld County, State of Colorado, in Book 414 at Page 585;
5) A tract or parcel of land, No. 1 of Colorado Department of Highways Project No.
S0053(2) in the N1/2 of the NE1/4 of said Section 9, as conveyed to the Department of
Highways, State of Colorado, by Deed recorded April 23, 1958,.in Book. 1501 at Page 274,
said tract or parcel being more particularly described as follows:
Beginning at a point on the East line of said Section 9, from which point the NE corner of
said Section 9 bears N00.50'30" West, a distance of 100.00 feet; thence along the East
line of said Section 9, NO0.50'30• West, a distance of 100.00 feet to the NE corner of
said Section 9; thence along the North line of said Section 9, N89°15'30" West, a distance
of 1583.50 feet; thence S00.35'30" West, a distance of 100.00 feet; thence S89°15'30•
East, a distance of 1586.00 feet, more or less, to the point of beginning;
6) A tract of land lying in the NE corner of said Section 9 which was conveyed to Public
Service Company of Colorado by Deed recorded January 15, 1987, in Book 1142 as Reception
No. 2084905, said tract of land being more particularly described as follows:
Beginning at the NE corner of said Section 9; thence S30°57'42" West, 115.25 feet to the
intersection of the southerly right of way of Colorado State Highway No. 60, and the
westerly right of way of Weld County Road 19, and the true point of beginning; thence
along the westerly right of way of said county road, S00°24'44° E, 288.34 feet; thence
N88°11'48" W, 297.21 feet; thence NO1.09'12" E, 284.86 feet, more or less, to the
southerly right of way of said Colorado State Highway No. 60; thence along said southerly
right of way, 488.50'48" E, 289.31 feet to the true point of beginning.
SETTLEMENT STATEMENT
SELLER: GTC Nutrition Company
PURCHASER: Colorado Sweet Gold, LLC
DATE OF CLOSING: February 1, 1999
SETTLEMENT DATE: 12 midnight
January 31, 1999
PROPERTY: All real and personal property, and
contracts and leases as described in the
Asset Purchase Agreement between Seller and
Purchaser dated February 1, 1999.
ITEM PURCHASER SELLER CLOSER
Purchase Price <$1,800,000.00> $1,800,000.00
Title Insurance < 2, 704 . 00> $2,704.00
Recorded:
Warranty Deed < 21.00> 21.00
Documentary Fee < 130. 00> 130. 00
Special Warranty Deed/
water < 16. 00> 16. 00
Quit Claim Deed/water < 21. 00> 21. 00
UCC-1 < 16. 00> 16.00
Transfer Fee
Big Thompson < 70. 00> 70.00
Business Interruption
(S 10. 6.B(1) 35, 000. 00 < 35,000. 00>
From Purchaser $1,765, 274. 00
To Seller $1,762,296.00
To Closer $2,978. 00
1. The Purchaser acknowledges that the transfer of personal property
is subject to state and county sales and use tax. Purchaser shall be
responsible to pay such tax and acknowledges that it has not been collected
by closer at closing.
2 . Real and personal property taxes have not been prorated at
closing. The Purchaser and Seller acknowledge that the Asset Purchase
Agreement provides for the proration and payment of these taxes.
3 . The Purchaser and Seller acknowledge that adjustments of the
purchase price and payment for such things as commodity accounts, prepaid
accounts, and inventory will be done outside of closing as set forth in the
attached closing memorandum, which is made a part of this Settlement
Statement.
4. The Purchaser and Seller have in the attached closing memorandum
set forth other items that must be addressed by the parties after the
closing. This list is to act as a guide and a reminder, but is not
intended to diminish the parties' further assurances. The parties shall
remain at all times reasonable and cooperative in providing, executing and
delivering to the other party instruments reasonably required to consummate
the full intent and performance of the Asset Purchase Agreement.
SELLER: PURCHASER:
GTC NUTRITION COMPANY COLORADO; SWEET GOLD, LLC
f�pLl_ K g z 2_�_ 0�G�G /v �v/'/ ✓r
HAMILTON SET Mr/wy _�-: - fuG
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that GTC NUTRITION COMPANY,
INC. , a Colorado corporation, ("Seller") , for and in
consideration of Ten Dollars ($10) and other good and valuable
consideration, to it in hand paid, at or before the ensealing or
delivery of these presents by COLORADO SWEET GOLD, LLC, a
Colorado limited liability company, 8714 State Highway 60, P.O.
Box 628, Johnstown, Colorado 80534, of the County of Weld, State
of Colorado ("Purchaser") , the receipt of which is hereby
acknowledged, has bargained and sold, and by these presents does
grant and convey unto the said Purchaser, its successors and
assigns, the following property, goods, and chattels, to wit:
The personal property identified on Schedule 2 . 1.D to
the Asset Purchase Agreement dated February 1, 1999,
between GTC Nutrition Company, Inc. , as Seller, and
Colorado Sweet Gold, LLC, as Purchaser (the "Asset
Purchase Agreement") ; the personal property
specifically identified on Schedule 2 . 1.D of the Asset
Purchase Agreement is, by these presents, transferred
without limitation as to all the personal property
herein transferred, which personal property shall also
include all personal property located at 14452 West
44th Avenue, Golden, Colorado, such as, but not limited
to, computers, computer programs, copiers, desks,
chairs, tables, supplies, and all other personal
property used at said location by Seller, and the
personal property shall further include all personal
property located at the Land described in Schedule
2 . 1.A to the Asset Purchase Agreement, such as, but not
limited to, all motors, pumps, supplies, and tools in
the warehouse and other locations on the Land,
computers and computer programs, furniture and office
equipment, supplies, testing equipment, lab equipment
and supplies, tools, spare parts, scales, telephones
and other communication equipment, heating and air
conditioning equipment attached and unattached to the
Real Property Improvements, motors, pumps and supplies
used in conjunction with the water wells, motors, pumps
and supplies used in conjunction with the water
purification and environmental monitoring systems, and
any and all other personal property used in the
operations on the Land and the Leased Premises; EXCEPT
the personal property set forth on Schedule 2 . 1.D(a) to
the Asset Purchase Agreement.
TO HAVE AND TO HOLD the same unto the said Purchaser, its
successors and assigns, forever. The said Seller covenants and
agrees to and with the Purchaser, its successors and assigns, to
WARRANT AND DEFEND the sale of said property, goods, and
chattels, against all and every person or persons whomever. When
used herein, the singular shall include the plural, the plural
the singular, and the use of any gender shall be applicable to
all genders.
IN WITNESS WHEREOF, the Seller has executed this Bill of
Sale this 1st day of February, 1999.
GTC NUTRITION COMPANY, INC. , a
Colorado corporation
-
By andP•-- (m-v1,-
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was subscribed, sworn to, and
acknowledged before me this Js} day of February, 1999, by
ar'eter, K. 664 as /9*cn.0 - (h - Fat/ of GTC Nutrition
Company, Inc. , a Colorado corporation.
Witness my hand and official seal.
My commission expires: 1/7IO,n
"tzhAl)64.
f ; NOTARY': a Not y lic
3.k-L 141
ReruLT0N.H09
PUBLIC A
•
'•.,,OF CO\-..••
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2
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