HomeMy WebLinkAboutA091 - Motion For Authority to Sell Property - Chapter 11 Bankruptcy Case No. 00-04163-CJ - Sale of Lot 1 Case 00-04163-imj7 Doc 10 Filed 11/22/00 Entered 11/22/00 16: :00 Desc
Converted from RACER Page 1 of 9
. a
ICI 2 2 2a
IN THE UNTIED.STATES BANKRUPTCY COU
FOR THE SOUTHERN DISTRICT OF IOWA M n�0 C�141
IN RE:
EASTGATE DEVELOPMENT, INC., CHAPTER 11 BANKRUPTCY
Debtor. CASE NO. 00-04163-CJ
Sale 0f Lot i
MOTION FOR AUTHORITY TO SELL PROPERTY
COMES NOW, Eastgate Development, Inc., the above-named debtor and
Debtor in Possession (the "Debtor"), and in accordance with Fed. R. Bankr. P.
6004 shows as follows:
1. On November 3, 2000, the Debtor filed a Voluntary petition for
Relief under Chapter 11 of the United States Bankruptcy Code.
2. Since that time, the Debtor has continued in possession of its
property and is presently operating its business and managing its property as a
Debtor in Possession, pursuant to 11 U.S.C.A. §§ 1107 and 1108.
3. The Debtor is the owner of a development site located at:
Eastgate Subdivision, Ames, Story County, Iowa: Part of the Sa 1/4 of
the SE 1/4 of Section 36, Township 84 North, Range 24 West of'thao.5t1
P.M., Ames, Story County, Iowa, previously described in a war. asitjEiaee(b
filed in the office of the Recorder of Story County, Iowa, on De`d&mbigy 31q
`u
1997, at Inst. No. 97-14065 and more particular described a!Mllo ,s: .'�
Commencing at the SE corner of said Section 36; thence N 0(r°12'"- E
55.00 feet along the East line of the SE 1/4 of said Section 36 &z&hcWoi<
of beginning; thence continuing N 00°12'46" E, 1259.29 feet kWthgjNE1 r1
corner of the SE 1/4 of the SE 1/4 of said Section 36; thence N 894L93"�3k,
1318.28 feet to the NW corner of the SE 1/4 of the SE 1/4 of said e6fion
36; thence S 00°20'34" W, 1267.72 feet along the west line of the SE 'A of
the SE 1/4 of said Section 36 to the north line of East 13th Street; thence N
89057'00" E, 1321.16 feet along said north line to the point of beginning,
containing 38.20 acres, which includes 1.16 acres of existing public road
right of way. Hereinafter referred to as "the site".
Q
: Case 00-04163-lmj7 Doc 10 Filed 11/22/00 Entered 11/22t00-16A0:00-
Converted from RACER Page 2 of 9
4. The Debtor proposes to sell free and clear of all liens, claims, and
encumbrances, in the ordinary course of business, and in accordance with the
Fed. R. Bankr. P. 6004 and 11 U.S.C.A. § 363(c)(1), certain real property of the
estate consisting of one of the lots identified asLot 1-Eastgate Subdivision to
Ames, Story County Iowa , a part of"the site".
5. This is a private sale in the ordinary course of business, wherein
the Debtor proposes to transfer its interest in the property to Everett and
Marilyn Freel, pursuant to the terms of a Purchase Agreement dated November
21, 2000 and attached hereto as Exhibit "A" and incorporated herein by
reference.
6. Pursuant to 11 U.S.C.A. § 363(c) and (f), the Debtor desires to sell
the Lot free and clear of any interest other than that of the estate with all valid
liens, claims, or encumbrances to attach the proceeds of such sale. The Debtor
is informed and believes that the Lot is encumbered by various mortgages and
mechanic's liens. Pursuant to Fed. R. Bankr. P. 6004, each of these persons
will be served with a copy of this Motion.
7. The purchase price set forth in the Purchase Agreement is
$186,000.00 with $0.00 paid as earnest money. Closing is presently scheduled
for approximately December 30, 2000.
8. The Debtor believes that the proposed purchase price for the Lot is
fair and reasonable.
WHEREFORE, Eastgate Development, Inc. respectfully requests that this
Court, after hearing on notice pursuant to Fed. R. Bankr. P. 2002, 6004, and
9014, approve this sale of the Lot as set forth herein and authorize the Debtor
to proceed in accordance with the Purchase Agreement, and that the Debtor
have such other and further relief as is just and equitable under the
circumstances.
Eastgate Development, Inc.
Debtor-in-possession
a-`�- a u G BY
Date:T T •
Gail W. oliver, 000475
Boliver Law Firm
2414 South Second Street
Marshalltown, Iowa 50158
Telephone 641-752-7757
Facsimile 641-752-6597
Attorneys for Debtor-in-possession
b Case 00-04163-lmj7 Doc 10 Filed 11/22/00 Entered 11/22/00-16:40:00 Desc
Converted from RACER Page 3 of 9
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoin was transmitted by United States mail, postage prepaid, on the
day of 2000 to the following:
U.S. Trustee
All creditors listed in Bankruptcy Matrix as attached
- -Imj7 Doc 10 Filed 11/22/00 Entered 11/22/00 16:40:00 Desc
Converted from RACER Page 4 of 9
OAR TO BUY REAL ESTATE AND ACCEPTANCE
BE IT KNOWN,the undersigned Everett and Marilyn Free] (hereinafter referred
to as "Buyer") offers to purchase from Eastgate Development, Inc.;(hereinafter referred
to as "Seller") all of the right,title and interest of Seller in and to the following described
real estate:
Lot 1,Eastgate Subdivision to Ames, Stott' County
Iowa(hereinafter called "Real Estate")
together with any easements and servient estates and subject to restrictions and easements
of record, if any. Buyer agrees to pay Seller a total purchase price for the Real Estate in
the amount of$186,000.00 of which surf$0 is tendered with this Offer to Buy as earnest
money to be held in escrow by Seller or Seller's agent until the Possession and Settlement
Date, Buyer agrees to pay the balance of the purchase price as follows:
The balance of$186,000.00 shall be paid upon closing
and delivery of possession and warranty deed.
THIS OFFER TO BUY IS MADE UPON THE FOLLOWING TERMS AND
CONDITIONS:
1. Buyer shall be entitled to possession of the Real Estate on or
before December 30, 2000, which shall also be the Settlement Date. Any
adjustment of real estate taxes, rent, insurance premiums or interest shall be
trade on and as of the Possession and Settlement Date,
2. Seller shall pay all real estate taxes up to December 30, 2000,
which, by statute, would be become delinquent with penalty if not paid on or
before September 30, 2001, and any unpaid real estate taxes payable in prior
years. Buyer shall pay all subsequent real estate taxes. Any proration of real
estate taxes on the Real Estate shall be based upon the actual real estate taxes
payable in the fiscal year which includes the Possession and Settlement Jute
as shown by the statement of the County Treasurer, if available, If the actual
taxes are not available, the proration shall be based upon the then current
millage rate and assessed valuation of tho Real Estate as shown by the records
of the County Treasurer's and Assessor's offices, respectively, on the
Settlement Date,
3, Seller shall pay all special assessments that are a lien on the real
estate as of the Possession and Settlement Date.
4. The Possession and Settlement Date may be changed by mutual
agreement of the parties and, in such case, any proration•of real estate taxes,
rent, insurance, premiums or interest shall be adjusted accordingly.
-1-
EXHIBIT
c 10 Filed 11/22/00 Entered 11/22/00 16:40:00 Desc
�. Converted from RACER Page 5 of 9
5. Seller represents and warrants to Buyer that Seller has no
lrnowledge,of the contaminat any time by a ell "Hazardous
Substance as defined to Title
42 U.S C 9 001(14). Ser agrees to indemntfy,
defend and hold harmless Buyer from all claims, liabilities,judgements,
damages, fines, penalties, costs and expenses, including attorney fees, arising
out of the contamination of the heal Estate with such Hazardous Substance at
any time prior to the Possession and Settlement Date,
6, Seller will promptly provide Buyer with an abstract of title to the
Real Estate continued through the date of the aacepatance of this Offer. The
abstract shall show marketable title in Seller in conformity with this contract
and Iowa law. Any defect of title shall be cured at the expense of Seller prior to
the Possession and Settlement Date. Seller shall pay the cost of any additional
abstracting work, including the release of mortgages and other liens,that is the
result of any act or omission of Seller prior to the delivery of the warranty deed
as provided in this contract. The abstract of title shall become the property of
Buyer upon full performance of this contract by Buyer.
7. Upon payment of the purchase price in full, Seller shall convey the
real estate by general warranty deed free and clear of all liens and .
encumbrances except as provided in the Offer to Buy. Any general warranties
of title shall extend only to the delivery of the deed. The warranties of title in the
deed executed and delivered pursuant to this contract shall be subject to
easements and restrictions of record, if any, as well as existing zoning
ordinances. Buyer shall be responsible for determining current building codes
and zoning ordinances which may affect Buyer's use and enjoyment of the Real
Estate.
S. TIME IS TIM ESSENCE OF THIS AGREEMENT. The failure to
assert promptly any rights of Seller shall not be a waiver of such rights nor a
waiver of any existing or subsequent default.
9. If Buyer fails to performs timely this real estate contract, Seller may,
at Seller's option, either: (i) forfeit this real estate contract as provided in
Chapter 656 of the Code of Iowa, (ii) foreclose this real estate contract as
provided in Chapter 654 of the Code of Iowa upon thirty(30) day's written
notice to Buyer of Seller's intention to accelerate the payment of the unpaid
balance of this contract because of such default and the failure of Buyer to
cure the default within thirty dat period, or(iu) exercise any other right or
remendy available to Seller under Iowa law. In any action or proceeding relating
to this Offer to Buy, the successful party shall be entitled to recover reasonable attorney
fees and costs.
-2-
-'Doc 10 Filed 11/22/00 Entered 11/22/00 16:40:00 Desc
Converted from RACER Page 6 of 9
10. No delay in exercising any tight or remendy by Seller shall be
deemed a waiver of such right or remendy. No amendment or waiver of any
provision of this real estate contract shall be effective unless in writing and
signed by both parties.
11, This Offer to Buy shall be construed and enforced according to the
laws of the State of Iowa.
12. This Offer to Buy includes the following additional provision:
A. This Offer to.Buy is subject to approval of the Iowa District
Court in and for Story County, Iowa, or the U.S. Bankruptcy
Court, Southern District of Iowa, in connection with the
pending mortgage forclosure proceedings involving real
estate known as Eastgate Subdivision to Ames, Story
County, Iowa, which approval shall be secured by Seller on
or before December 30,2000. if Seller is unable to secure
such court approval by the required date,this Offer to Buy
shall be null and void and Buyer's down payment shall be
refunded in full.
B. Buyer agrees to start construction of a building on Real Estate
within eight(8)months from Possession and Settlement Date,
13. The agreements contained in this Offer to Buy constitute the entire
agreement between the parties and shall be binding upon the parties, their heirs, personal
representatives, successors and assigns. Words and phrases in this Offer to Buy shall be
construed as in the singular or plural number and as masculine, feminine or neuter gender
according to the context.
14. If this Offer to Buy is not accepted by Seller on or before 5:00 p.m. on
December 30, 2000) it shall be null and void. Buyer and.Seller shall be discharged from
any further)iability or responsibility to the other party. When timely accepted,this Offer
to Buy shall become binding contract for the sale and purchase of the Real Estate upon all
of the terms and conditions contained in this Offer to Buy.
DATED this !2�Ad//ay of `� � ,d,L_,2000
Buyer
Buyer
-3-
Case 00-04163-lmj7 Doc 10 Filed 11/22/00 -"Entered 11/2
[ Converted from RACER Page 7 of 9
ACCEPTANCE OF OFFER TO BUY REAL ESTATE
This offer to Buy Real Estate is accepted by the Seller on November-7-3�2000,
and Seller acknowledges receipt of a copy of this Offer to Buy,
Eastgate Development Inc. ,
Y
Title:
Debtor-In-Possession
SELLER
-4-
Case 00-04163-lmj7 Doc 10 Filed 11/22/00 Entered 11/2
Converted from RACER Page 8 of 9
.. a VtNDWV
IN THE UNTIED STATES BANKRUPTCY COU
FOR THE SOUTHERN DISTRICT OF IOWA ;
Cot
IN RE:
EASTGATE DEVELOPMENT, INC., CHAPTER 11 BANKRUPTCY
Debtor. CASE NO. 00-04163-CJ
BAR DATE NOTICE
The attached Motion for Authority to Sell Property was served on
November 22nd, 2000.
Notice is given that objections to the Motion for Authority to Sell Property
must be filed within twenty (20) days of the date of this Notice, on December
12th, 2000. Objections, if any, shall be filed with the Clerk, U.S. Bankruptcy
Court, 318 U.S. Courthouse, Des Moines, Iowa 50309, the U.S. Trustee and
served on Gail E. Boliver, attorney for Debtor-in-possession, Boliver Law Firm,
2414 South Second Street, Marshalltown, Iowa 50158, 50158.
Notice is further given that timely and substantive objections will be set
for hearing by separate notice. Otherwise, if no objections are timely..-filed, an
0
appropriate Order will be entered without further notice of hearing..,,.'-
CS �
Eastgate Development, Inc.
Debtor-in-possession '
o� <
h
w
o w
a �
:Y
Case 00-04163-Imj7 Doc 10 Filed 11/22/00 Entered 11/22/00
Converted from RACER Page 9 of 9
��_ G G
Date: ��� By:
Gail Boliver, 000475
Boliver Law Firm
2414 South Second Street
Marshalltown, Iowa 50158
Telephone 641-752-7757
Facsimile 641-752-6597
Attorneys for Debtor-in-possession
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Bar Date Notice and Motion for Authority to Sell Property was
transmitted by United States mail, postage prepaid, on the 2z� day of
2000 to the following:
U.S. Trustee
All creditors listed in Bankruptcy Matrix