REAL ESTATE PURCHASE CONTRACT
COMMERCIAL
The Buyer, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza, L.L.C., a Utah Limited Liability Company, to
be formed and wholly owned by Marina Capital Corporation (a Utah Corporation),
offers to purchase the Property described below and delivers as ▇▇▇▇▇▇▇ Money
Deposit $ 100.00 in the form of a check to Ogden City Corporation and Ogden City
Neighborhood Development Agency.
OFFER TO PURCHASE
1. The property which is the subject of this offer to purchase ("Property")
is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (multiple parcels), including # 03-003-000l and
# ▇▇-▇▇▇-▇▇▇▇ and including abandoned portion of 26th Street.
For legal description, see attached Addendum #1.
1.1 INCLUDED ITEMS: Unless excluded herein, this sale shall include all
fixtures presently attached to the Property. The following personal property
shall also be included in this sale and conveyed under separate Bill of Sale
with warranties as to title: All current contents in building to be identified
by Buyer within ten (10) days of acceptance. (Deleted text "remaining
personalty to be removed by Seller within thirty (30) days after acceptance.")
1.2 EXCLLTDED ITEMS: These items are excluded from this sale: None.
2. PURCHASE PRICE AND FINANCING. ▇▇▇▇▇ agrees to pay for the Property as
follows:
$100.00 ▇▇▇▇▇▇▇ Money Deposit
$ 0.00 Balance of Purchase Price in cash at closing
$100.00 TOTAL PURCHASE PRICE
3. CLOSING. This transaction shall be closed on or before 10 days after 1ast
contingency item removed (see Addendum #2. Closing shall occur when: (a) Buyer
and Seller have signed and delivered to each other (or to the escrow/title
company), all documents required by this Contract, by the Lender, by written
escrow instructions signed by the Buyer and the Seller, and by applicable law;
(b) the moneys required to be paid under these documents have been delivered to
the escrow/title company in the form of collected or cleared funds; and (c) the
deed which the Seller has agreed to deliver under Section 5 has been recorded.
Seller and ▇▇▇▇▇ shall each pay one-half of the escrow Closing fee, unless
otherwise agreed by the parties in writing. Taxes and assessments for the
current year, and interest on assumed obligations shall be prorated as set forth
in this Section. All deposits on tenancies shall be transferred to Buyer at
Closing. Proration set forth in this Section shall be made as of date of
possession. In no event shall closing occur after March 1, 1998.
4. POSSESSION. Seller shall deliver possession to Buyer within twenty-four
(24) hours after Closing.
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5. TITLE TO PRROPERTY AND TITLE INSURANCE. (a) Seller has, or shall have
at Closing, fee title to the Property and agrees to convey such title to Buyer
by special warranty deed, free of financial encumbrances as warranted; (b)
Seller agrees to pay for, and furnish Buyer at Closing with, a current standard
coverage owner's title insurance policy in the amount of the Total Purchase
Price; (c) the title policy shall conform with Seller's obligations under
subsections (a) and (b). Unless otherwise agreed under Section 7.2, the
commitment shall conform with the title insurance commitment provided under
Section 6.1.
6. SPECIFIC UNDERTAKINGS OF SELLER AND BUYER.
6.1 SELLER DISCLOSURES. The Seller will deliver to the Buyer the following
Seller Disclosures no later than the number of calendar days indicated below
which shall be days after Acceptance.
(days)
(a) a commitment for the policy of title insurance required under
Section 5, to be issued by Home Abstract & Title Co., including
copies of all documents listed as Exceptions on the Commitment: 20
(b) a copy of all loan documents relating to any loan now existing
which will encumber the Property after Closing: 20
(c) a copy of all leases and rental agreements now in effect with
regard to the Property together with a current rent roll: 20
(d) any easement or right-of-way agreements affecting the property: 20
▇▇▇▇▇▇ agrees to pay any charge for cancellation of the title commitment
provided under subsection (a).
If Seller does not provide any of the Seller Disclosures within the time periods
agreed above, the Buyer may either waive the particular Seller Disclosure
requirement by taking no timely action or the Buyer may notify the Seller in
writing prior to the closing that the Seller is in Default under this Contract
and that the remedies under Section 14 are at the Buyer's disposal. The holder
of the ▇▇▇▇▇▇▇ Money Deposit shall, upon a receipt of a copy of ▇▇▇▇▇'s written
notice, return to the Buyer the ▇▇▇▇▇▇▇ Money Deposit without the requirement of
further written authorization from the Seller.
6.2 BUYER UNDERTAKINGS. The Buyer agrees to do those requirements set
out in Addendum #2 attached.
6.3 ADDITIONAL DUE DILIGENCE. The Buyer may undertake any of the
following Additional Due Diligence elements at its own expense and for its own
benefit for the purpose of complying with the Contingencies under Section 7.
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(a) Ordering and obtaining an appraisal of the property if one is not
otherwise required under Section 6.2;
(b) ▇▇▇▇▇▇▇▇ and obtaining a survey of the Property if one is not otherwise
required under Section 5;
(c) Ordering and obtaining any environmentally related study of the
Property;
(d) Ordering and obtaining a physical inspection report regarding, and
completing a personal inspection of, the Property;
(e) Requesting and obtaining verification that the Property complies with
all applicable federal, state, and local laws, ordinances, and regulations
with regard to zoning and permissible use of the Property.
Seller agrees to cooperate fully with ▇▇▇▇▇'s completing these Due Diligence
matters and to make the Property available as reasonable and necessary for the
same.
7. CONTINGENCIES. THIS offer is subject to the Buyer's approving in its
sole discretion the Seller Disclosures, the Buyer Undertakings, and Additional
Due Diligence matters undertaken in Section 6, along with additional
contingencies set forth herein below and in Addendum No. 2.
7.1 If Buyer objects to any disclosure or undertaking item in Section 6,
Buyer and Seller shall have 30 calendar days after receipt of the objections to
resolve Buyer's objections. Seller may, but shall not be required to, resolve
Buyer's objections. Likewise, the Buyer is under no obligation to accept any
resolution proposed by the Seller. If ▇▇▇▇▇'s objections are not resolved
within the stated time, ▇▇▇▇▇ may void this Contract by providing written notice
to Seller within the same stated time. The holder of the ▇▇▇▇▇▇▇ Money Deposit
shall, upon receipt of a copy of ▇▇▇▇▇'s written notice, return to Buyer the
▇▇▇▇▇▇▇ Money Deposit without the requirement of any further written
authorization from Seller. If this Contract is not voided by ▇▇▇▇▇, ▇▇▇▇▇'s
objection is deemed to have been waived. However, this waiver does not affect
warranties under Section 9.
7.2 Resolution of Buyer's objections under Section 7.1 shall be in writing
and shall become part of this Contract.
7.3 Contingent upon (Deleted text "Seller's")▇▇▇▇▇'s receipt of Phase 2
Environmental Assessment of the subject property to be provided by Seller, at
its expense, as soon as possible, but in no event , more than thirty (30) days
prior to closing or December 1, 1997, whichever occurs first. In the event that
▇▇▇▇▇ does not approve of items contained in said environmental Assessment,
Seller shall have thirty (30) days notification in which to correct such
conditions as identified by Buyer
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in writing. In the event Seller fails to make adequate correction of such
conditions, ▇▇▇▇▇ may withdraw from this contract and shall not be obligated
thereon. (Text written in "Seller shall not be responsible to remove or pay to
remove or remediate asbestos or lead based paint determined to be present in the
building.")
7.4 Subject to Buyer's verification of existing-utilities. This includes
what utilities exist, their condition, the size of lines, where they exist in
the Property, and other such information regarding existing utilities.
7.5 Contingent upon Buyer being able to obtain adequate zoning changes as
required for its project, prior to closing.
7.6 Subject to the Property being delivered absent of any known structural
defects. In the event any structural defects are known to Seller, it shall
disclose the same to Buyer immediately.
8. OTHER CONTINGENCIES. This offer is made subject to: See Addendum #2.
The terms of attached Addendum #2 are incorporated into this Contract by this
reference.
9. SELLER'S WARRANTIES. Seller warrants to Buyer the following regarding the
property:
9.1 When Seller delivers possession of the Property to Buyer, it will be in
the "as is" condition. Seller shall not be responsible for removing personal
property nor sweeping the building.
9.2 Seller will deliver possession of the Property to Buyer with utility
lines and connections in the "as is" condition. (Deleted text "but Seller
warrants that it knows of no code violation.")
9.3 Buyer received the Property in "as-is" condition except as specified in
this contract or any part thereof or addendum thereto.
9.4 At Closing, Seller will bring current all financial obligations
encumbering the Property which are assumed in writing by Buyer and will
discharge all such obligations which Buyer has not so assumed.
10. VERIFICATION OF WARRANTED AND INCLUDED ITEMS. After all contingencies have
been removed and before, Closing, the Buyer may conduct a "walk-through"
inspection of the Property to determine whether or not items warranted by Seller
in (Deleted text "Section 9.1, 9.2, 9.3 and 9.4") Paragraph 9 are in the
warranted condition and to verify that items included in Section 1.1 are
presently on the Property. If any item is not in the warranted condition,
Seller will correct, repair or replace it as necessary or, with the consent of
Buyer and (if required) Lender, escrow an amount at Closing to provide for such
repair or replacement.
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11. CHANGES DURING TRANSACTION. Seller agrees that no changes in any
existing leases shall be made, no new leases entered into, and no substantial
alterations or improvements to the Property shall be undertaken without the
written consent of the Buyer.
12. AUTHORITY OF SIGINERS. If Buyer or Seller is a corporation,
partnership, trust, estate, or other entity, the person signing this Contract
on its behalf warrants his or her authority to do so and to bind Buyer or Seller
and the heirs or successors in interest to ▇▇▇▇▇ or Seller. If the Seller is
not the vested Owner of the Property but has control over the vested Owner's
disposition of the Property, the Seller agrees to exercise this control and
deliver title under this Contract as if it had been signed by the vested Owner.
13. COMPLETE CONTRACT. This instrument (together with its Addenda, any
attached Exhibits, and Seller Disclosures) constitutes the entire Contract
between the parties and supersedes all prior dealings between the parties. This
Contract cannot be changed except by written agreement of the parties.
14. (Deleted text "DEFAULT. If Buyer defaults, Seller may elect to
either retain the ▇▇▇▇▇▇▇ Money deposit as liquidated damages or to return the
▇▇▇▇▇▇▇ Money Deposit and sue Buyer to enforce Seller's rights. If Seller
defaults, in addition to return of the ▇▇▇▇▇▇▇ Money Deposit, Buyer may elect to
either accept from Seller as liquidated damages a sum equal to the ▇▇▇▇▇▇▇ Money
Deposit or sue Seller for specific performance and/or damages. If Buyer elects
to accept the liquidated damages, ▇▇▇▇▇▇ agrees to pay the liquidated damages to
Buyer upon demand. Where a Section of this Contract provides a specific remedy,
the parties intend that the remedy shall be exclusive regardless of rights which
might otherwise be available under common law.")
15. (Deleted text "ATTORNEY'S FEES. In any action arising out of this
Contract, the prevailing party shall be entitled to costs and reasonable
attorney's fees.")
16. DISPOSITION OF ▇▇▇▇▇▇▇ MONEY. The ▇▇▇▇▇▇▇ Money Deposit shall not be
released unless it is authorized by: (a) Sections 6.1, 6.2 and 7.1; (b) separate
written agreement of the parties, or (e) court order.
17. RISK OF LOSS. All risk of loss or damage to the Property shall be borne
by Seller until ▇▇▇▇▇ takes possession of and occupies the Property.
18. TIME IS OF THE ESSENCE. Time is of the essence regarding the data set
forth in this transaction. Extensions must be agreed to in writing by all
parties. Performance under each Section of this Contract which references a
date shall be required absolutely by 5:00 P.M., Mountain Time on the stated
date.
19. COUNTERPARTS AND FACSIMILE (FAX) DOCUMENTS. This Contract may be signed in
counterparts, and each counterpart bearing an original signature shall be
considered a document with all others bearing original signature. Also,
facsimile transmission of any
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signed original document and re-transmission of any signed facsimile
transmission shall be the same as delivery of an original.
20. ACCEPTANCE. Acceptance occurs when Seller or Buyer, responding to an
offer or counteroffer of the other: (a) signs the offer or counteroffer where
noted to indicate acceptance; and (b) communicates to the other party or the
other party's agent that the offer or counteroffer has been signed as required.
21. OFFER AND TIME FOR ACCEPTANCE. Buyer offers to purchase the Property
on the above terms and conditions. If Seller does not accept this offer by 5:00
PM Mountain Time, Wednesday, October 15, 1997, this offer shall lapse; and the
holder of the ▇▇▇▇▇▇▇ Money Deposit shall return it to the Buyer.
/s/▇▇▇▇▇ ▇▇▇▇▇▇ for Oct. 8, 1997
(▇▇▇▇▇'s Signature) (Offer Reference Date)
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza, LLC.
Buyers Name (please print)
▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇▇
(Notice Address) (Phone)
ACCEPTANCE/REJECTION/COUNTEROFFER
x Acceptance of Offer to Purchase: Seller Accepts the foregoing offer on the
terms and conditions specified above.
/s/ 20 Oct 97 1130
(Sellers Signature) (Date) (Time)
▇▇▇▇▇ City Corporation and
Ogden City Neighborhood Development Agency
Seller's Name (please print)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(Notice, Address) (Phone)
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Rejection: Seller Rejects the foregoing offer
(Seller's initials) (Date) (Time)
Counter Offer: Seller presents for ▇▇▇▇▇'s Acceptance the terms of
▇▇▇▇▇'s offer subject to the exceptions or modifications as specified in the
attached Counter Offer #
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ADDENDUM NO. 2
TO REAL ESTATE PURCHASE CONTRACT - COMMERCIAL
This Addendum No. 2 to the Real Estate Purchase Contract - Commercial ("Offer")
dated June 5, 1997, between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza, L.L.C. as Buyer and Ogden City
Corporation and Ogden City Neighborhood Development Agency as Seller
("the REPC").
In addition to those contingencies set forth in the REPC, the Offer contained in
the REPC is further subject to the following contingencies and conditions:
1. The Offer must be accepted as to both properties which are the Subject of the
REPC.
2. Buyer intends to design and to renovate and/or provide new construction in
the development of condominium space for both residential, "live-work" (live and
work in the same unit), and commercial office/retail/light commercial use.
Seller shall use its best efforts, in which Buyer shall cooperate, in obtaining
new zoning or adequate variances under existing zoning from applicable and
appropriate governmental authorities, to allow the Buyer's proposed and intended
project, which approval shall be obtained prior to closing.
3. Seller (Ogden City) will issue building permits in a timely manner and in
accordance with City ordinances. (Note: Building is not currently listed on
local or national historic registers. Construction and preservation techniques
are at owner's discretion so long as they do not violate local ordinances.)
4. Seller shall obtain vacating of any and all easements or right-of-ways
through Property which Buyer may find objectionable, except for utility
easements.
5. Contingent upon Buyer obtaining sufficient construction financing for its
proposed project and improvements to the subject real Property.
6. Willingness of the City to accept this purchase price is based upon the
Buyer's pledge to develop a "warehouse conversion" project including development
of condominium space for both residential, "live-work" (live and work in the
same unit), and commercial office/retail light commercial use.
7. Seller has given Buyer full opportunity to inspect the building and premises
which are the subject of this offer. Buyer inspected the same and is satisfied
with their condition, and is relying solely on its own inspection and
investigation and not on any statement made by Seller. The building and
premises are being sold in the "as is" condition.
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8. Buyer shall enter into a Disposition and Development 'Agreement with Seller
providing for specific performance in accordance with an acceptable scope (not
financial scope) of development and schedule of performance to accomplish the
proposed warehouse conversion project.
9. (Deleted text "For a period of two (2) years following the date this
contract is executed by the parties, Seller shall notify Buyer of any and all
properties owned by Seller or any agency thereof which Seller intends to or
would consider selling to buyer or to any third party, including, but not
limited to notice of any such negotiations, notices of hearings for approvals,
notice of any property which may be available or might become available for
sale. In the event that a property becomes available and the parties agree to
its purchase for purposes of Buyer renovating such property in the manner
intended for the property which is the subject of this agreement, Seller shall
permit Buyer, at Buyer's option, to develop and complete any such other project
prior to completion of the project which is the subject of this agreement.")
10. The City shall conduct a Phase 2 Environmental Assessment of the property in
accordance with the schedule of performance. A copy of the assessment report
shall be provided to Buyer.
11. Seller, as owner of record, shall cooperate with Buyer efforts, if
necessary, to pursue new zoning or adequate variances to accommodate the Buyer's
proposed project, subject to applicable review and recommendation by the
Planning Commission, City Council review and consideration, including possible
rejection of any such proposal and applicable City ordinances and regulations.
12. Seller will work closely with ▇▇▇▇▇ to resolve any claims or notices of
record adversely impacting the property.
13. Seller in good faith shall initiate the requisite process to consider, the
establishment of a redevelopment area involving the property including proposed
tax increment financing up to $250,000.00 payable as available during a period
not to exceed five years from the date tax increment is initially received from
▇▇▇▇▇ County. Said tax increment shall be dedicated to exterior improvements
including, but not limited to building facade, parking, landscaping and
lighting. Buyer shall be required to demonstrate need and justification for any
and all tax increment assistance provided. No representation or assurance can
or is made with respect to any actual approval of a Redevelopment Project and
actual tax increment financing approvals which are subject to public hearings,
tax increment budget submission to the applicable taxing agency committee and
the requisite, City Council and Redevelopment Agency Board of Commissioners
approvals.
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14. The disposition and development of the subject property, and any proposed
assistance provided by the City or its agencies, is subject to and contingent
upon approval by the requisite public bodies following compliance with all
notice and hearing requirements.
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for /s/
Buyers Signature Seller's Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza, LCC
Oct 8, 1997 20 Oct 97
Date Date
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ADDENDUM NO. 1
DESCRIPTION OF PROPERTY SERIAL NUMBER ▇▇-▇▇▇-▇▇▇▇ TAXING UNIT
Owner Ogden City Corporation 161 S 2250 W 25
Ogden UT
% Maniacs Inc - ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 84401
DESCRIPTION OF PROPERTY: 66 R/P ACRES: 0.00
PART OF LOT 8, BLOCK 1, OGDEN 5 ACRE PLAT A, OGDEN CITY
SURVEY, BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 8,
RUNNING THENCE SOUTH 186.4 FEET, RUNNING THENCE WEST 290 FEET
TO THE BOUNDARY LINE OF THE OGDEN UNION RAILWAY AND DEPOT
COMPANY PROPERTY, RUNNING THENCE NORTHEASTERLY TO A POINT
6 RODS SOUTN AND 16 RODS WEST OF THE NORTHEAST CORNER OF
SAID LOT 8, RUNNING THENCE EAST 66 FEET, THENCE NORTH 132
FEET TO THE SOUTH LINE OF 26TH STREET, RUNNING THENCE EAST
ALONG SAID SOUTH LINE 198 FEET TO THE PLACE OF BEGINNING.
COMMENTS:
**This description for taxation purposes only.**
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DESCRIPTION OF PROPERTY SERIAL NUMBER ▇▇-▇▇▇-▇▇▇▇ TAXING UNIT
Owner Ogden City NEIGHBORHOOD ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇
DESCRIPTION OF PROPERTY: 88 ORIG ACRES: 0.00
PART OF LOT 8, BLOCK 1, FIVE ACRE PLAT A, OGDEN CITY SURVEY,
BEGINNING AT A POINT ON THE EAST LINE OF SAID LOT 8, WHICH
IS 186.4 FEET, SOUTH OF THE NORTHEAST CORNER OF SAID LOT 8,
RUNNING THENCE SOUTH 147.50 FEET ALONG SAID EAST LINE TO THE
NORTH LIINE OF ▇▇▇▇▇▇▇ STREET, THENCE WEST 805.25 FEET ALONG
SAID NORTH LINE, THENCE NORTH 115.50 FEET, THENCE
NORTHEASTERLY TO A POINT WEST OF BEGINNING. THENCE EAST 290
FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
COMMENTS:
**This description for taxation purposes only.**
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