REAL ESTATE PURCHASE CONTRACT
EARNEST MONEY RECEIPT
Buyer, Taylor's Landing, Inc., a Utah corporation offers to purchase the
Property described below and hereby delivers to the Brokerage, as Earnest Money,
the amount of $500 in the form of # which, upon Acceptance of this offer by all
parties (as defined in Section 23), shall be deposited in accordance with state
law.
Received by: Linda G. Welberg on April 29, 1997
Brokerage: ERA Carlson, Phone number 566-8111
OFFER TO PURCHASE
1. Property: Celebrations Cafe & Catering also described as 65 South Main
Street, tax id# XA23811, City of Nephi, County of Juab, State of Utah
(the "Property")
1.1 Included items. Unless excluded herein, this sale includes the
following items if presently attached to the Property:
plumbing, heating, air conditioning fixtures and equipment:
ceiling fans, water heater, built-in appliances: light
fixtures and bulbs; bathroom fixtures, curtains draperies and
rods; window and door screens; storm doors and windows; window
blinds; awnings; installed television antenna; satellite
dishes and system permanently affixed carpets; automatic
garage door opener and accompanying transmitter(s); fencing;
and trees and shrubs. The following items shall also be
included in this sale and conveyed under separate Bill of Sale
with warranties as to title:
all inventory and equipment.
1.2 Excluded items. The following items are excluded from this
sale. N/A
1.3 Water Rights. The following water rights are included in this
sale as per property profile.
1.4 Survey. A survey map of the Property certified by a licensed
surveyor will not be prepared. The Property corners will not
be marked by survey stakes set by a licensed surveyor or
engineering company. The cost of the applicable items checked
above will be [ ] paid by Buyer [ ] paid by Seller [ ] shared
equally by Buyer and Seller [ ] Other
(specify)______________________. For additional terms, see
attached Survey Addendum if applicable.
2. PURCHASE PRICE. The Purchase Price for the Property is $ One hundred
thousand dollars and 00/100.
2.1 Method of Payment. The Purchase Price will be paid as follows:
_____$500.00 (a) Earnest Money Deposit. Under certain conditions
described in this Contract, THIS DEPOSIT MAY BECOME
TOTALLY NON-REFUNDABLE.
____________ (b) New Loan. Buyer agrees to apply for a new loan as
provided in Section 2.3. Buyer will apply for one or
more of the following loans: [ ] CONVENTIONAL [ ] FHA
[ ] VA [ ] OTHER(specify)__________________________.
If an FHA/VA loan applies, see attached FHA/VA Loan
Addendum. If the Loan is to include any particular
terms, then check below and give details. [ ]
SPECIFIC LOAN TERMS____________________________.
_____________ (c) Loan Assumption (see attached Assumption Addendum, if
applicable)
__ $89,500.00 (d) Seller Financing (see attached Seller Financing
Addendum if applicable)
_____________ (e) Other(specify)_______________________________________
___$10,000.00 (f) Balance of Purchase Price in Cash at Settlement
$100,000.00 PURCHASE PRICE. Total of lines (a) through (f)
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Seller's Initials /s/BSC CC Buyer's Initials /s/ BT
2.2 Financing Condition. (check applicable box)
(a) [ ] Buyer's obligation to purchase the Property IS
conditioned upon Buyer qualifying for the applicable
loan(s) referenced in Section 2.1(b) or (c) (the
"Loan"). This condition is referred to as the
"Financing Condition."
(b) [ X ] Buyer's obligation to purchase the Property IS
NOT conditioned upon Buyer qualifying for a loan.
Section 2.3 does not apply.
2.3 Application for Loan
(a) Buyer's duties. No later than the Application Deadline
referenced in Section 24(a), Buyer shall apply for the Loan.
"Loan Application" occurs only when Buyers has: (i) completed,
signed and delivered to the lender (the "Lender") the initial
loan application and documentation required by the Lender; and
(ii) paid all loan application gees as required by the Lender.
Buyer agrees to diligently work to obtain the Loan. Buyer will
promptly provide the Lender with any additional documentation
as required by the Lender.
(b) Procedure if Loan Application is denied. If Buyer receives
written notice from the Lender that the Lender does not
approve the Loan (a "Loan Denial"), Buyer shall no later than
three calendar days thereafter, provide a copy to the Seller/
Buyer of Seller may, within three calendar days after Seller's
receipt of such notice, cancel this Contract by providing
written notice to the other party. In the event of a
cancellation under this Section 2.3(b): (i) if the Loan Denial
was received by Buyer on or before the Earnest Money
Forfeiture Deadline referenced in Section 24(d), the Earnest
Money Deposit shall be returned to Buyer, (ii) if the Loan
Denial was received by Buyer after the Earnest Money
Forfeiture Deadline, Buyer agrees to forfeit, and Seller
agrees to accept as Seller's exclusive remedy, the Earnest
Money as liquidated damages. A failure to cancel as provided
in this Section 2.3(b) shall have no effect on the Financing
Condition set forth in Section 2.2(a). Cancellation pursuant
to the provisions of any other section of this Contract shall
be governed by such provisions.
2.4 Appraisal of Property. Buyers obligation to purchase the
Property IS NOT conditioned upon the Property appraising for
not less than the Purchase Rice. If the appraisal condition
applies and the Property appraises for less than the Purchase
Price, Buyer may cancel this Contract by providing written
notice to Seller no later than three calendar days after
Buyer's receipt of notice of the appraised value. In the event
of such cancellation, the Earnest Money Deposit shall be
released to Buyer regardless of whether such cancellation os
before or after the Earnest Money Forfeiture Deadline. A
failure to cancel as provided in this Section 2.4 shall be
deemed a waiver of the appraisal condition by Buyer.
2.5 SETTLEMENT AND CLOSING. Settlement shall take place on or
before the Settlement Deadline referenced in Section 24(e). A
Settlement shall occur only when all of the following have
been completed: (a) Buyer and Seller have signed and delivered
to each other or to the escrow/closing office all documents
required by the Contract, by the Lender, by written escrow
instruction or by applicable law; (b) any monies required to
be paid by Buyer under these documents (except for the
proceeds of any new loan) have been delivered by Buyer to
Seller or to the escrow/closing office in the form of
collected or cleared funds; and (c) any monies required to be
paid by Seller under these documents have been delivered by
Seller to Buyer or to the escrow/closing office in the form of
collected or cleared funds. Seller and Buyer shall each pay
one-half (1/2) of the fee charged by the escrow/closing office
for its services in the settlement/closing process. Taxes and
assessments for the current year, rents and interest on
assumed obligation shall be prorated at Settlement as set
forth in this Section. Tenant deposits (including, but not
limited to, security deposits, cleaning deposits and prepaid
rents.) shall be paid or credited by Seller to Buyer at
Settlement. Prorations set forth in this Section shall be made
as of the Settlement Deadline date referenced in Section
24(e), unless otherwise agreed to in writing by the parties.
Such writing could include the settlement statement. The
transaction will be considered closed when Settlement has been
completed, and when all of the following have been completed:
(i) the proceeds of any new loan have been delivered by the
Lender to Seller or to the escrow/closing office; and (ii) the
applicable Closing documents have been recorded in the office
of the county recorder. The actions described in parts (i) and
(ii) of the preceding sentence shall be completed within four
calendar days of Settlement.
4. POSSESSION. Seller shall deliver physical possession to Buyer within
[ ] hours [ ] days after Closing; [X] Other (specify) buyer would like
to keep current owner as manager.
5. CONFIRMATION OF AGENCY DISCLOSURE. At the signing of this Contract:
/s/ ______Seller's initials /s/ ____Buyer's initials
The Listing Agent, LaDawn Ray, represents Seller.
The Selling Agent Linda Welberg, Dawn Colbert, represents Buyer.
/s/ ______Seller's initials /s/ ____Buyer's initials
The Listing Broker, Nebo Agency, represents Seller.
The Selling Broker, ERA-Carlson Realtors, represents Buyer.
6. TITLE INSURANCE. At Settlement, Seller agrees to pay for a
standard-coverage owner's policy of title insurance insuring Buyer in
the amount of the Purchase Price.
7. SELLER DISCLOSURES. No later than the Seller Disclosure Deadline
referenced in Section 24(b), Seller shall provide to Buyer the
following documents which are collectively referred to as the "Seller
Disclosures".
(a) a Seller property condition disclosure for the Property,
signed and dated by Seller.
(b) a commitment for the policy of title insurance;
(c) a copy of any leases affecting the Property not expiring prior
to Closing;
(d) written notice of any claims and/or conditions known to Seller
relating to environmental problems and building or zoning code
violations; and
(e) Other (specify)________________________________
8. BUYER'S RIGHT TO CANCEL BASED ON EVALUATION AND INSPECTIONS. Buyer's
obligation to purchase under this Contract (check applicable boxes):
[X] IS [ ] IS NOT conditioned upon Buyer's approval of the content of
all the Seller Disclosures referenced in Section 7;
[X] IS [ ] IS NOT conditioned upon Buyer's approval of a physical
condition inspection of the Property;
[ ] IS [ X ] IS NOT conditioned upon Buyer's approval of
the following tests and evaluations of the Property; (specify)_________
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If any of the above items are checked in the affirmative, then Sections
8.1, 8.2, 8.3 and 8.4 apply; otherwise, they do not apply. The items
checked in the affirmative above are collectively referred to as the
"Evaluations & Inspections." Unless otherwise provided in this
Contract, the Evaluations & Inspections shall be paid for by Buyer and
shall be conducted by individuals or entities of Buyer's choice. Seller
agrees to cooperate with the Evaluations & Inspections and with the
walk-through inspection under Section 11.
8.1 Period for Completion and Review of Evaluations and
Inspections. No later than the Buyer Cancellation Deadline
referenced in section 24(c) Buyer shall: (a) complete all
Evaluations & Inspections; and (b) determine if the
Evaluations & Inspections are acceptable to Buyer.
8.2 Right to Cancel or Object. If Buyer determines that the
Evaluations & Inspections are unacceptable, Buyer may, no
later than the Buyer Cancellation Deadline, either; (a) cancel
this Contract by providing written notice to Seller, whereupon
the Earnest Money Deposit shall be released to Buyer; or (b)
provide Seller with written notice of objections.
8.3 Failure to Respond. If by the expiration of the Buyer
Cancellation Deadline, Buyer does not: (a) cancel this
Contract as provided in Section 8.2: or (b) deliver a written
objection to Seller regarding the Evaluations & Inspections,
the Evaluations & Inspections shall be deemed approved by
Buyer.
8.4 Response by Seller. If Buyer provides written objections to
Seller, Buyer and Seller shall have seven calendar days after
Seller's receipt of Buyer's objections (the "Response Period")
in which to agree in writing upon the manner of resolving
Buyer's objections. Seller may, but shall not be required to,
resolve Buyer's objections. If Buyer and Seller have not
agreed in writing upon the manner of resolving Buyer's
objections, Buyer may cancel those Contract by providing
written notice to Seller no later than three calendar days
after expiration of the Response Period; whereupon the Earnest
Money Deposit shall be released to Buyer regardless of whether
such cancellation is before or after the Earnest Money
Forfeiture Deadline. If this Contract is not canceled by Buyer
under this Section 8.4, Buyer'`s objections shall be deemed
waived by Buyer. This waiver shall not affect those items
warranted in Section 10.
9. ADDITIONAL TERMS. There are addenda to this Contract
containing additional terms. If there are the items of the
following addenda are incorporated into this Contract by this
reference: [ ] Addendum No. ____, [ ] Survey Addendum [ X]
Seller Financing Addendum [ ] FHA/VA Loan Addendum [ ]
Assumption Addendum [ ] Lead-Based Paint Addendum (in some
transaction this addendum is required by law) [ ] Other
(specify)______________
Seller's Initials /s/BSC CC_ Date_______ Buyer's Initials /s/ BT__ Date _______
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10. SELLER WARRANTIES & REPRESENTATIONS.
10.1 Condition of Title. Seller represents that Seller has
fee title to the Property and will convey good and
marketable title to Buyer at Closing by general
warranty deed, unless the sale is being made pursuant
to a real estate contract which provides for title to
pass at a later date. In that case, title will be
conveyed in accordance with the provisions of that
contract, Buyer agrees, however, to accept title to
the Property subject to the following matters of
record: easements, deed restrictions, CC&R's (meaning
covenants, conditions and restrictions), and
rights-of-way; and subject to the contents of the
Commitment for Title Insurance as agreed to by Buyer
under Section 8. Buyer also agrees to take the
Property subject to existing leases affecting the
Property and not expiring prior to Closing. Buyer
agrees to be responsible for taxes, assessments,
homeowners association dues, utilities, and other
services provided to the Property after Closing.
Except for any loan(s) specifically assumed by Buyer
under Section 2.1(c). Seller will cause to be paid
off by Closing all mortgages, trust deeds,
judgements, mechanic's liens, tax liens and warrants.
Seller will cause to be paid current by Closing all
assessments and homeowners association dues.
10.2 Condition of Property. Seller warrants that the
Property will be in the following condition ON THE
DATE SELLER DELIVERS PHYSICAL POSSESSION TO BUYER:
(a) the Property shall be broom-clean and free of debris
and personal belongings. Any Seller or tenant
moving-related damage to the Property shall be
repaired at Seller's expense;
(b) the heating, cooling electrical, plumbing and
sprinkler systems and fixtures, and the appliances
and fireplaces will be in working order and fit for
their intended purposes;
(c) the roof and foundation shall be free of leaks known
to Seller;
(d) any private well or septic tank serving the Property
shall have applicable permits, and shall be in
working order and fit for its intended purpose; and
(e) the Property and improvements, including the
landscaping, will be in the same general condition as
they were on the date of Acceptance.
11. WALK-THROUGH INSPECTION. Before Settlement, Buyer may, upon
reasonable notice and at ta reasonable time conduct a
"walk-through" inspection of the Property to determine only
that the Property is "as represented," meaning that the items
referenced in Sections 1.1, 8.4 and 10.2 ("the items") are
respectively present, repaired/changed as agreed, and in the
warranted consent of Buyer (and Lender if applicable), escrow
an amount at Settlement to provide for the same. The failure
to conduct a walk-through inspection, or to claim that an item
is not as represented, shall not constitute a waiver by Buyer
of the right to receive, on the date of possession, the items
as represented.
12. CHANGES DURING TRANSACTION. Seller agrees that from the date
of Acceptance until the date of closing, none of the following
shall occur without the prior written consent of Buyer: (a) no
changes in any existing leases shall be made; (b) no new
leases shall be entered into; (c) no substantial alterations
or improvements to the Property shall be made or undertaken;
and (d) no further financial encumbrances to the Property
shall be made.
13. AUTHORITY OF SIGNERS. If Buyer or Seller is a corporation,
partnership, trust, estate, limited liability company, or
other entity, the person executing this Contract on its behalf
warrants his or her authority to do so and to bind Buyer and
Seller.
14. COMPLETE CONTRACT. This Contract together with its addenda,
any attached exhibits, and Seller Disclosures, constitutes the
entire Contract between the parties and supersedes and
replaces any and all prior negotiations, representations,
warranties understandings or contracts between the parties.
This Contract cannot be changed except by written agreement of
the parties.
15. DISPUTE RESOLUTION. The parties agree that any dispute,
arising prior to or after Closing, related to this Contract
SHALL (upon mutual agreement of the parties) first be
submitted to mediation. If the parties agree to mediation, the
dispute shall be submitted to mediation through a mediation
provider mutually agreed upon the parties. Each party agrees
to bear its own costs of mediation. If mediation fails, the
other procedures and remedies available under this Contract
shall apply. Nothing in this Section 15 shall prohibit any
party from seeking emergency equitable relief pending
mediation.
16. DEFAULT. If Buyer defaults, Seller may elect either to retain
the Earnest Money Deposit as liquidated damages, or to return
it and sue Buyer to specifically enforce this Contract or
pursue other remedies available at law. If Seller defaults, in
addition to liquidated damages, or may sue Seller to
specifically enforce this Contract or pursue other remedies
available at law. If Buyer elects to accept liquidated
damages, Seller agrees to pay the liquidated damages to Buyer
upon demand. It is agreed that denial of a Loan Application
made by the Buyer is not a default and is governed by Section
2.3(b).
Seller's Initials /s/BSC CC_ Date_______ Buyer's Initials /s/ BT__ Date _______
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17. ATTORNEY FEES AND COSTS.
17.1 In Actions to Enforce this Contract. In the event of
litigation or binding arbitration to enforce this
Contract, the prevailing party shall be entitled to
costs and reasonable attorney fees. Attorney fees
shall not be awarded for participation under Section
15.
17.2 In Interpleader Actions. If a principal broker
holding the Earnest Money Deposit is required by law
to file an interpleader action in court to resolve a
dispute over that Deposit, Buyer and Seller authorize
that principal broker to draw from that Deposit an
amount necessary to advance the court costs needed to
bring that interpleader action. The amount of the
Deposit remaining after advancing those costs shall
be interpleaded into court. Buyer and Seller further
agree that whichever of this is found to be in
default may be ordered to any reasonable attorney
fees, or additional court costs, incurred nu the
principal broker in bringing the action, unless the
court finds that there was fault on the part of the
principal broker or his or her agent that would make
such an award of attorney fees and costs unjust.
18. NOTICES. Except as provided in Section 23, all notices
required under Contract must be (a) in writing; (b) signed by
the party giving notice; and (c) received by the other party's
agent no later than the applicable date referenced in this
Contract.
19. ABROGATION. Except for the provisions of Sections 15 and 17
and express warranties made in this Contract, the provisions
of this Contract shall not apply after Closing.
20. RISK OF LOSS. All risk of loss to the Property not caused by
Seller of Buyer, including physical damage or destruction to
the Property or its improvements due to any cause except
ordinary wear and tear and loss caused by a taking in eminent
domain, shall be borne by Seller until Seller delivers
possession of the Property to Buyer.
21. TIME IS OF THE ESSENCE. Time is of the essence regarding the
dates set forth in this Contract. Extensions must be agreed to
in writing by all parties. Unless otherwise explicitly stated
in this Contract: (a) performance under each Section of this
Contract which references a date shall absolutely be required
by 5.00 PM Mountain Time on the stated dated; and (b) the term
"days" shall mean calendar days and shall be counted beginning
on the day following the event which triggers the timing
requirement (i.e. Acceptance, receipt of the Seller
Disclosures, etc.) Performance dates and times referenced
herein shall not be binding upon title companies lenders,
appraisers and others not parties to this Contract, except as
otherwise agreed to in writing by such non-party.
22. FAX TRANSMISSION AND COUNTERPARTS. Facsimile (fax)
transmission of a signed copy of this Contract, any addenda
and counter offers, and the retransmission of any signed fax
shall be the same as delivery of an original. This Contract
and any addenda and counteroffers my be executed in
counterparts.
23. 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 to the other
party's agent that the offer or counteroffer has been signed
as required.
24. CONTRACT DEADLINES. Buyer and Seller agree that the following
deadlines shall apply to this Contract:
(a) Application Deadline No later than 0 calendar
days after Acceptance.
(b) Seller Disclosure Deadline No later than 10 calendar
days after Acceptance.
(c) Buyer Cancellation Deadline No later than 70 calendar
days after Buyer's receipt
of all of the Seller's
Disclosures.
(d) Earnest Money Forfeiture
Deadline 10 calendar days after the
Buyer Cancellation Deadline.
(e) Settlement Deadline June 30, 1997 (DATE)
25. 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: ___ [ ] AM [ ] PM Mountain Time upon
presentations, 19 __ this offer shall lapse, and Brokerage
shall return Earnest Money Deposit to Buyer.
/s/ BonneJean C. Tippetts
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(Buyer's Signature) (Offer Date)
The later of the above Offer Dates
shall be referred to as "Offer Reference Date"
for Taylor's Landing, Inc.
(Buyer's Names) (PLEASE PRINT) (Notice Address) (Phone)
Seller's Initials /s/BSC_CC_ Date_______ Buyer's Initials /s/ BT__ Date _______
ACCEPTANCE/COUNTEROFFER/REJECTION
CHECK ONE:
[X] COUNTEROFFER: Seller presents for Buyer's Acceptance the terms of Buyer's
offer subject to the exceptions modifications as specified in the attached
ADDENDUM NO. ____.
/s/ B. Sydney Colley /s/Cassandra Colley
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(Seller's Signature Date Time (Seller's Signature) (Date) (Time)
(Seller's Names) (PLEASE PRINT) (Notice Address) (Phone)
[ ] REJECTION: Seller Rejects the foregoing offer.
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(Seller's Signature) (Date) (Time) (Seller's Signature) (Date) (Time)
***********************************************
DOCUMENT RECEIPT
State law requires Broker to furnish Buyer and Seller with copies of this
Contract bearing all signatures. (Fill in applicable section below)
A. I acknowledge receipt of a final copy of the foregoing Contract bearing
all signatures.
/s/BonnieJean C. Tippetts_________ ______________________________
(Buyer's Signature) (Date) (Buyer's Signature) (Date)
/s/B. Sydney Colley_________ /s/ Cassandra Colley_____________
(Buyer's Signature) (Date) (Buyer's Signature) (Date)
B. I personally caused a final copy of the foregoing Contract bearing all
signatures to be [ ]faxed [ ] mailed [ ] hand delivered on _______,
19___, postage prepaid, to the [ ] Seller [ ] Buyer.
Sent/Delivered by (specify)__________________________________________
THIS FORM APPROVED BY THE UTAH REAL ESTATE COMMISSION
AND THE OFFICE OF THE UTAH ATTORNEY GENERAL.
EFFECTIVE JUNE 12, 1996.
IT REPLACES AND SUPERSEDES ALL PREVIOUSLY APPROVED VERSIONS OF THIS FORM
Seller's Initials /s/ BSC CC Buyer's Initials /s/BT