AGREEMENT TO PURCHASE
DATE:
October ___, 2009
PARTIES: FCB Holdings, LLC “Seller;” and
__________________________________________, “Buyer.”
RECITALS:
A. Seller is owner of the property (the “Property”) described as: 500 Alfred
Nobel Drive, Suite 137, Contra Costa County, California, is described as
Contra Costa County Assessors Parcel Number: 404-710-037-7. The Property
is more particularly described in Exhibit A and attached hereto, and the term
“Property” shall include all easements and other rights and privileges
appurtenant to the land described above, all real estate improvements located
on that land and, to the extent transferable and assignable by their terms,
Seller’s warranties and guarantees covering such improvements.
B. Seller has offered to sell and assign said Property pursuant to an online
Auction conducted by Dennis West, West Auctions (“Auctioneer” or “West”
or “Westauction.com”), the terms of such Auction set forth in Exhibit B
hereto.
C. Buyer has submitted the highest bid on said Auction within the time allowed
under the terms thereof.
D. By this Agreement, the parties set forth their Agreement for the sale and
assignment of the Property.
AGREEMENTS:
The parties mutually agree as follows:
1. PURCHASE AND SALE: Buyer hereby agrees to purchase from Seller, and
Seller hereby agrees to sell to Buyer the Property for the Purchase Price of
__________________$_________________________ Dollars ($,000.00).
2. DEPOSIT: Buyer has deposited with Auctioneer the sum of $1,000.00, which
Deposit shall be applied to the Purchase Price on Close of Escrow as provided
herein. Buyer shall increase the Deposit by _____$_________ to a total of ten
percent (10%) of the bid price by close of business on no less than 48 hours on
July____________, 2009, for a total Deposit of $___________. The Deposit shall
be held by Auctioneer pending Close of Escrow and transferred to the Escrow
Holder at Close of Escrow.
3. BALANCE OF PURCHASE PRICE: The balance of the Purchase Price,
_____$__________(not including the Buyer Premium) shall be paid by Buyer to
Seller at Closing.
4. ESCROW: An Escrow for this transaction shall be opened at Placer Title
Company, Woodland, California (“Escrow Holder”), or at such other location as
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the parties may mutually agree. The Escrow Fees charged by the Escrow Holder
shall be paid one-half by the Seller and one-half by the Buyer. Close of Escrow
shall be not later than 30 days from Deposit date on November_______, 2009,
(the “Closing Date”). Possession of the Property shall be delivered on Close of
Escrow.
5. TITLE INSURANCE: If Buyer desires a policy of title insurance, Buyer shall
immediately request a preliminary report from the Escrow Holder and shall pay
all costs and expenses of the preliminary report and policy.
6. CONTIGENCIES: There are no contingencies to this transaction.
7. CLOSING DOCUMENTATION: At Close of Escrow, Buyer shall receive the
following:
a. A grant deed (the “Deed”) conveying to Buyer title to the Property,
including oil, mineral and water rights currently owned by Seller, free and
clear of all liens and encumbrances, except (a) applicable zoning
ordinances and other legal requirements and restrictions; (b) taxes and
assessments not yet delinquent; (c) easements, conditions, restrictions,
agreements and other matters of record (excluding any lien securing a loan
to Seller); (d) matters that would be revealed by a current survey and
inspection of the Property; (e) binding but un-recorded leases executed
prior to Effective Date; and (f) other title matters approved or not timely
objected to by Buyer pursuant to Section 10 below (collectively, the
“Permitted Encumbrances”). It shall be Buyer’s obligation to examine title
and obtain an ALTA title insurance commitment.
b. A Bill of Sale conveying the Intangible Property to Buyer without
warranty, together with any plans, specifications, manuals, warranties and
guarantees regarding the Property in Seller’s possession.
c. An owner’s lien affidavit in form reasonably acceptable to Buyer’s title
insurer.
d. An affidavit in a form complying with law that Seller is not a “foreign
person” within the meaning of the Foreign Investment in Real Property
Tax Act.
8. CLOSING EXPENSES: Each party shall be responsible for the following
closing expenses:
a. Seller shall be responsible for the cost of preparation of the Deed.
b. Buyer shall be responsible for all other recording costs not covered in
Section 7(a), and the cost of title examination, the title insurance premium,
the survey contemplated by Section 11 below, and all other due diligence
investigations.
c. The parties will each be responsible for all of their other closing costs,
including their respective attorneys’ fees.
9. PRORATIONS: Ad valorem taxes and assessments on the Property due and
payable in the year of Closing; rental income, prepaid expenses, utility charges
and deposits, if any, with respect to the Property; and all other customarily
proratable items shall be prorated as of the Closing Date on the basis of the most
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recent ascertainable amounts or other reliable information in respect to each such
item. The net credit to Buyer or Seller shall be paid in cash or as a credit or debit
against the Purchase Price. Taxes and assessments shall be prorated on a calendar
year basis. If the tax bill for the year of Closing is not available at the time of
Closing, ad valorem taxes will be re-prorated within thirty (30) days after receipt
of the tax bill for the year of Closing. The provisions of this Section shall survive
Closing.
10. TITLE EXAMINATION: Buyer shall have two days to examine the title to the
Property upon delivery of the final title insurance commitment. Buyer shall advise
Seller in writing, within two days of delivery of title report, of any objections it
may have to title, and Seller shall have a period of ten (10) days after the date of
the notice within which to remedy the objections to the satisfaction of Buyer,
provided that Seller shall have no obligation to remedy any such objection except
as provided below. Seller agrees, at or prior to Closing, to provide for the
payment of any mortgage or deed of trust encumbering the Property granted by
Seller. If any other objections raised by Buyer are not cured or remedied within
the ten (10) day period, Buyer may at its election either: (a) accept title to the
Property subject to the objections, or (b) terminate this Agreement, and receive
the return of the Deposit. In addition, Seller agrees that it shall not cause any new
encumbrance to be placed on or granted with respect to the Property, other than
those existing as of the Effective Date, without the prior written consent of Buyer.
If any such new encumbrances arise after the Effective Date and prior to the
Closing Date and Buyer objects, Seller shall, at its sole expense, cure the
objections.
11. SURVEY: Buyer may, at its option, cause a licensed surveyor or engineer to
prepare an accurate survey of the Property. Buyer shall provide copies of its
survey and title insurance commitment for the Property to Seller upon Buyer’s
receipt of such items. Buyer is purchasing the property based on their own
examination of land size and not actual surveyed size.
12. DELIVERY OF POSSESSION: Seller shall deliver exclusive possession of the
Property to Buyer on the Closing Date subject to all existing leases. Seller shall
remove its trade fixtures, equipment, furniture and other personal property (other
than building mechanical systems) from the Property prior to Closing, and repair
any damage to the Property caused by such removal.
13. OPERATION OF PROPERTY: Seller agrees to continue to maintain the
Property in substantially the same manner between the Effective Date and the
Closing Date as it currently is being maintained, subject to ordinary wear and tear,
casualty and other events beyond the reasonable control of Seller. From and after
the Effective Date until any termination of this Agreement, Seller agrees to enter
into no new agreements, leases or contracts encumbering the Property that will
survive the Closing without Buyer’s prior written consent.
14. REPRESENTATION AND WARRANTIES BY SELLER: Seller represents
and warrants to Buyer that:
a. Seller owns, or as of Closing will own, fee simple title to the Property.
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b. Seller has full power and authority to enter into this Agreement, and to
convey the Property to Buyer in accordance with the terms of this
Agreement.
c. The execution and performance of this Agreement by Seller will not
conflict with any provision of law applicable to Seller, nor will it result in
the breach of any provision of, or constitute a default under, any
agreement or instrument to which Seller is a party, or of Seller’s articles of
incorporation or bylaws, or of any order or decree of any court or arbiter
to which Seller is a party.
d. This Agreement and the documents to be delivered by Seller at Closing
have been or will be duly authorized by all necessary action on the part of
Seller, and have been or will be duly executed and delivered by Seller, and
is a binding obligation of Seller.
e. Seller has received no notice of any pending or threatened condemnation
proceedings that affects the Property.
f. To the best of Seller’s knowledge, all mechanical systems are in good
working order.
g. To the best of Seller’s knowledge, Seller has not located, stored, placed,
disposed of, affixed or otherwise used at, on, upon or within the Property
any Hazardous Material, as defined below, in violation of any applicable
legal requirement. As used herein, “Hazardous Material” means any
substance or material that:
i. is designated as a hazardous waste, hazardous substance,
hazardous material, pollutant, contaminant or toxic substance
under any law or regulation for the protection of the environment;
or
ii. is or contains petroleum hydrocarbons.
h. The truthfulness of each of the foregoing matters is a condition precedent
to Buyer’s performance under this Agreement, and all of the foregoing
matters shall be deemed repeated at Closing. Upon the breach by Seller of
any representation or warranty made in this Section, Buyer may, prior to
the Closing Date, terminate this Agreement and receive the return of the
Deposit. The foregoing remedy is not intended to be an exclusive remedy
of Buyer.
15. AS IS NATURE OF PURCHASE: Except as expressly set forth in this
Agreement, the Property is being sold and conveyed to Buyer “as is” and “with all
faults.” Except as expressly set forth in this Agreement, Seller has not made, does
not make, and hereby disclaims any and all express or implied representations and
warranties regarding or relating to: the condition of the Property, its suitability for
any particular purpose; the susceptibility to flooding of the Property; the value or
marketability of the Property; the acreage of the Property, the layout or square
footage of the improvements on the Property; the projected income or expenses of
the Property; the zoning classification, or use and occupancy restrictions,
applicable to the Property; the current manner of operation of the Property; the
compliance of the Property with environmental laws or other legal requirements;
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the presence of Hazardous Materials; and all other matters affecting or relating to
the Property. Buyer acknowledges that, except as expressly set forth in this
Agreement, no such representations or warranties, express or implied, have been
made by Seller, or by any other person representing or purporting to represent
Seller. The terms and covenants of this Section shall survive the Closing.
16. BUYER INDEMNITY AND SELLER PROTECTION FOR ENTRY UPON
PROPERTY: Buyer shall:
a. keep the Property free and clear of liens;
b. repair all damage arising from Buyer Investigations; and
c. indemnify and hold Seller harmless from all resulting liability, claims,
demands, damages and costs. Buyer shall carry, or Buyer shall require
anyone acting on Buyer’s behalf to carry, policies of liability, workers’
compensation and other applicable insurance, defending and protecting
Seller from liability for any injuries to persons or property occurring
during any Buyer Investigations or work done on the Property at Buyer’s
direction prior to Close Of Escrow. Seller is advised that certain
protections may be afforded Seller by recording a “Notice of NonResponsibility” for Buyer Investigations and work done on the Property at
Buyer’s direction. Buyer’s obligations under this paragraph shall survive
the termination of this Agreement.
17. CONDEMNATION OR CASUALITY DAMAGE: If, prior to the Closing
Date, the Property or any part thereof is damaged or destroyed by fire, the
elements or any other destructive force or cause, then, within ten (10) days of any
such damage or destruction, Seller shall give written notice to Buyer specifying
the insurance carrier’s estimate of the amount of insurance payable as the result of
such damage or destruction. Within ten (10) days after the notice described in the
preceding sentence, Buyer may elect to terminate this Agreement by delivery of
written notice to Seller, in which case the Deposit shall be returned to Buyer. If
Buyer elects to consummate the purchase despite the damage or destruction, there
shall be no reduction in or abatement of the Purchase Price, and Seller shall assign
to Buyer all of Seller’s right, title and interest in and to all insurance proceeds, if
any, resulting from the damage or destruction. If, prior to the Closing Date, any
condemnation proceedings are instituted in which a taking of any material portion
of the Property is proposed, then within five (5) days of notice of the institution of
the condemnation proceedings, Seller shall give written notice to Buyer. Within
ten (10) days after the notice described in the preceding sentence, Buyer may elect
to terminate this Agreement by delivery of written notice to Seller, in which case
the Deposit shall be returned to Buyer. If Buyer elects to consummate the
purchase despite the institution of condemnation proceedings, there shall be no
reduction in or abatement of the Purchase Price, and Seller shall assign to the
Buyer all of Seller’s right, title, and interest in and to any award or settlement
made or to be made in the condemnation proceedings.
18. OTHER TERMS, CONDITIONS, AND PROVISIONS: The terms,
conditions, and provisions attached hereto as Exhibit B are incorporated herein
by reference and made a part of this Agreement as if set forth herein in their
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entirety. In the event of any inconsistency between the terms, conditions, and
provisions set forth in Exhibit B and an express provision in this document, the
term, condition, or provision set forth shall control over that set forth in Exhibit
B.
19. ENVIRONMENTAL HAZARD CONSULTATION: Buyer and Seller
acknowledge:
a. Federal, state, and local legislation impose liability upon existing and
former owners and users of real property, in applicable situations, for
certain legislatively defined, environmentally hazardous substances;
b. Auctioneer or Broker(s) has/have made no representation concerning the
applicability of any such Law to this transaction or to Buyer or to Seller,
except as otherwise indicated in this Agreement;
c. Auctioneer or Broker(s) has/have made no representation concerning the
existence, testing, discovery, location and evaluation of/for, and risks
posed by, environmentally hazardous substances, if any, located on or
potentially affecting the Property; and
d. Buyer and Seller are each advised to consult with technical and legal
experts concerning the existence, testing, discovery, location and
evaluation of/for, and risks posed by, environmentally hazardous
substances, if any, located on or potentially affecting the Property.
20. DEFAULTS AND LIQUIDATING DAMAGES: Upon the breach by Seller of
this Agreement, Buyer, as its sole and exclusive remedies, may either:
a. terminate this Agreement by delivery of written notice to Seller, in which
event Buyer shall be entitled to the return of the Deposit; or
b. institute proceedings in mediation, arbitration or any court of competent
jurisdiction to specifically enforce the performance by Seller of the terms
of this Agreement.
If Buyer fails to complete this purchase because of Buyer’s default, Seller shall
retain, as liquidated damages, the deposit actually paid and to receive from Buyer all
surveys, inspections, evaluations and other reports and information on the Property,
including physical improvements, prepared by or for, or otherwise obtained by, Buyer
as Sellers liquidated damages. Buyer and Seller agree that this amount is a reasonable
sum given that it is impractical or extremely difficult to establish the amount of
damages that would actually be suffered by Seller in the even Buyer were to breach
this Agreement. Release of funds will require mutual, Signed release instructions
from both Buyer and Seller, judicial decision or arbitration award.
Buyer’s Initials:________/________
Initials:________/________
Seller’s
21. DISPUTE RESOLUTION:
a. Mediation: Buyer and Seller agree to mediate any dispute or claim arising
between them out of this Agreement, or any resulting transaction, before
resorting to arbitration or court action. Paragraphs 22c and d below apply
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whether or not the Arbitration provision is initialed. Mediation fees, if any,
shall be divided equally among the parties involved. If, for any dispute or
claim to which this paragraph applies, any party commences an action
without first attempting to resolve the matter through mediation, or refuses
to mediate after a request has been made, then that party shall not be
entitled to recover attorney fees, even if they would otherwise be available
to that party in any such action. THIS MEDIATION PROVISION
APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS
INITIALED.
b. Arbitration of Disputes: (1) Buyer and Seller agree that any dispute or
claim in Law or equity arising between them out of this Agreement or any
resulting transaction, which is not settled through mediation, shall be
decided by neutral, binding arbitration, including and subject to
paragraphs 22c and d below. The arbitrator shall be a retired judge or
justice, or any attorney with at least 5 years of real estate transactional
Law experience, unless the parties mutually agree to a different arbitrator,
who shall render an award in accordance with substantive California Law.
The parties shall have the right to discovery in accordance with Code of
Civil Procedure S1283.05. In all other respects, the arbitration shall be
conducted in accordance with Title 9 of Part III of the California Code of
Civil Procedure. Judgment upon the award of the arbitrator(s) may be
entered into any court having jurisdiction. Interpretation of this agreement
to arbitrate shall be governed by the Federal Arbitration Act.
c. Exclusions From Mediation and Arbitration: The following matters are
excluded from mediation and arbitration: (i) a judicial or non-judicial
foreclosure or other action or proceeding to enforce a deed of trust,
mortgage, or installment land sale contract as defined in Civil Code
S2985; (ii) an unlawful detainer action; (iii) the filing or enforcement of a
mechanic’s lien; and (iv) any matter that is within the jurisdiction of a
probate, small claims, or bankruptcy court. The filing of a court action to
enable the recording of a notice of pending action, for order of attachment,
receivership, injunction, or other provisional remedies, shall not constitute
a waiver of the mediation and arbitration provisions.
d. Auctioneer: Buyer and Seller agree to mediate and arbitrate disputes or
claims involving either Auctioneer or Broker, consistent with 22c and d,
provided either Auctioneer or Broker shall have agreed to such mediation
or arbitration prior to, or within a reasonable time after, the dispute or
claim is presented to Auctioneer or Broker. Any election by either
Auctioneer or Broker to participate in mediation or arbitration shall not
result in Auctioneer or Broker being deemed parties to the Agreement.
“NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES’
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED
BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT
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OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL,
UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
‘ARBITRATION OF DISPUTES’ PROVISION. IF YOU REFUSE TO
SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION,
YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.”
“WE HAVE READ AND UNDERSTAND THE FOREGOING AND
AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS
INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION TO
NEUTRAL ARBITRATION.”
Buyer’s Initials ______/______ Seller’s Initials ______/______
22. COMMISSIONS/BUYER PREMIUM: Buyer and Seller represent and warrant
to each other that a buyer premium or real estate commissions will be due as a
result of the sale of the Property from their respective actions, to be paid by Buyer
to West Auctions in the amount of ten percent (10%) of the Purchase Price, which
commission shall be paid by Buyer regardless of the Property actually closing.
Said commission/buyer premium is in ADDITION to the purchase price
referenced in Section 1. Seller agrees to indemnify, defend and save harmless
Buyer from and against any cost and expense (including reasonable attorneys’
fees) incurred by Buyer as a result of any other claims by a broker for payment of
a commission by Buyer based upon the actions of Seller. Seller will be obligated
to pay West Auctions the previously agreed to commission as stipulated in the
exclusive right to sell Listing Agreement between the Seller and West Auctions.
Buyer agrees to indemnify, defend and save harmless the Seller from and against
any cost and expense (including reasonable attorneys’ fees) incurred by Seller as a
result of any other claims by a broker for payment of a commission by Seller
based upon the actions of Buyer.
23. ASSIGNMENT: Buyer shall have no right to assign this Agreement without the
prior written consent of Seller; provided, however, that such consent shall not be
required for an assignment to another corporation, partnership or limited liability
company controlled by Buyer or its principals or for an assignment permitted
under Section 24 below. No such assignment shall relieve Buyer from liability
under this Agreement.
24. NOTICES: All notices to Escrow Agent, Seller, Buyer and Auctioneer shall be
deemed delivered if sent to the applicable address(es) set forth below (i) when
hand delivered to the addressee, or when received by the addressee by facsimile
transmission, or (ii) one business day following delivery to or pick up by an
express delivery courier, such as Federal Express, or (iii) three days following
deposit in U.S. mail, certified, return receipt requested.
Notice to Seller shall be given to the following address:
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XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
Notice to Buyer shall be given to the following address:
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
Notice to Escrow Holder shall be given to the following address:
Mary McGuire
Escrow Officer
Placer Title Company
1100 Main Street, #180
Woodland, CA 95695
Phone: 530-666-1213
Fax: 530-666-2670
Notice to Auctioneer shall be given to the following address:
Dennis B. West, License # A2167
West Auctions
P.O. Box 278
Woodland, California 95776
Phone: 530-661-0490
Fax: 530-661-6674
Any party may change its address for the service of notice by delivering written
notice of the change to the other party, in the manner provided above at least ten
(10) days prior to the effective date of the change.
25. DEPOSIT CONDITIONS: Auctioneer will receive, hold and disburse the
Deposit in accordance with the following terms and conditions:
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a. The Deposit shall be invested by Auctioneer in a non interest-bearing
account at a FDIC Insured bank. Auctioneer shall promptly notify Seller in
writing upon its receipt of the Deposit and any increase in the Deposit.
b. In the event of a default by Buyer under the terms of this Agreement, or
any other failure of Closing to occur under circumstances in which this
Agreement does not provide for return of the Deposit to Buyer, Auctioneer
will deliver the Deposit to Seller.
c. In the event of a default by Seller under the terms of this Agreement,
Auctioneer will deliver the Deposit to Buyer.
d. In the event the sale of the Property is closed, Auctioneer will deliver the
Deposit to Escrow Holder to be treated as a credit against the Purchase
Price:
i. Buyer and Seller agree that Auctioneer shall not be liable for any
reason except negligence or intentional misconduct.
ii. Auctioneer shall comply with any terms contained in this
Agreement with respect to the disbursement of the Deposit. Any
request for disbursement shall be signed by Buyer and Seller. In
addition, Auctioneer is authorized to disburse the Deposit in
accordance with judicial decision or arbitration award.
iii. In connection with this Deposit, Buyer and Seller agree to execute
such agreements as Auctioneer may reasonably request. In the
event of any dispute regarding the application of the Deposit,
Auctioneer shall be authorized to disburse the earnest money to a
court of competent jurisdiction, to be held pending resolution of
that dispute.
26. COUNTERPARTS: This Agreement may be executed in any number of
identical counterparts, any or all of which may contain the signatures of fewer
than all of the parties, but all of which shall be construed together as a single
instrument.
27. WITHHOLDING TAXES: Seller and Buyer agree to execute any instrument,
affidavit, statement or instruction reasonably necessary to comply with federal
(FIRPTA) and California withholding Law, if required.
28. ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer and
Seller arising out of this Agreement, the prevailing Buyer or Seller shall be
entitled to reasonable attorney fees and costs from the non-prevailing Buyer or
Seller, except as provided in paragraph 20a.
29. ENTIRE AGREEMENT, MODIFICATION: This Agreement constitutes the
entire and complete agreement between the parties with respect to the Property
and supersedes any prior oral or written agreements between the parties. All
understandings between the parties are incorporated in this Agreement. Its terms
are intended by the parties as a final, complete and exclusive expression of their
Agreement with respect to its subject matter, and may not be contradicted by
evidence of any prior agreement or contemporaneous oral agreement. If any
provision of this Agreement is held to be ineffective or invalid, the remaining
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provisions will nevertheless be given full force and effect. Neither this
Agreement nor any provision in it may be extended, amended, modified, altered
or changed, except in writing Signed by Buyer and Seller.
30. SUCCRSSORS AND ASSIGNS: All covenants, agreements, warranties and
provisions of this Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, personal
representatives, successors and assigns. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and facsimile
signature shall be accepted as originals.
31. CONTROLLING LAW: This Agreement has been made and entered into under
the laws of the State of California, and those laws shall control the interpretation
of this Agreement.
32. TIME OF ESSENCE: Time shall be of the essence in the performance of all
obligations under this Agreement. If the time period by which any right, option or
election provided under this Agreement must be exercised, or by which any act
required under this Agreement must be performed, or by which Closing must be
held, expires on a Saturday, Sunday or a holiday, then such time period shall be
automatically extended to the next business day.
33. BROKERAGE: Neither Buyer nor Seller has utilized the services of, or for any
other reason owes compensation to, a licensed real estate broker (individual or
corporate), agent, finder, or other entity, other than as specified in this Agreement,
in connection with any act relating to the Property, including, but not limited to,
inquiries, introductions, consultations and negotiations leading to this Agreement.
Buyer and Seller each agree to indemnify, defend, and hold the other, and their
agents, harmless from and against any costs, expenses or liability for
compensation claimed inconsistent with the warranty and representations in this
paragraph. Auctioneer is not a real estate broker and is not acting as a real estate
broker herein. Auctioneer has a separate fee agreement with Seller and/or Seller’s
Creditors.
34. PARTICIPATING BROKER: If applicable, upon Close of Escrow, Buyer
agrees to pay compensation to Broker as specified in a separate written agreement
between Auctioneer, Buyer and Broker.
35. AUCTIONEER COMPENSATION FROM SELLER: Upon Close Of Escrow,
Seller agrees to pay compensation to Auctioneer as specified in a separate written
exclusive right to sell Listing Agreement between Seller and Auctioneer. If
escrow does not close, compensation is payable as specified in that separate
written agreement.
36. JOINT ESCROW INSTRUCTIONS TO ESCROW HOLDER: This
Agreement shall constitute the joint escrow instructions of Buyer and Seller to
Escrow Holder, which Escrow Holder is to use along with any addenda, and any
additional mutual instructions to close the Escrow. Buyer and Seller will receive
Escrow Holder’s general provisions directly from Escrow Holder and will execute
such provisions upon Escrow Holder’s request. To the extent the general
provisions are inconsistent or conflict with this Agreement, the general provisions
will control as to the duties and obligations of Escrow Holder only. Buyer and
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Seller will execute additional instructions, documents and forms provided by
Escrow Holder that are reasonably necessary to close the escrow.
37. LIKE-KIND EXCHANGE: Each party has informed the other party that it may
desire to have this transaction be a part of a like-kind exchange of properties
utilizing the provisions of Section 1031 of the Internal Revenue Code of 1986, as
amended. Each party agrees to cooperate with the other party in order to
effectuate and facilitate such an exchange, provided that: (a) the exchange does
not delay the Closing under this Agreement, (b) the non-exchanging party does
not incur any additional liability as a result of its cooperation, and (c) the nonexchanging party is not required to enter into any contract to purchase any other
property, or take title to any property other than the Property. In particular, either
party may assign its rights under this Agreement prior to Closing to a “Qualified
Intermediary,” as that term is defined in applicable Treasury Regulations; and
Buyer will, upon request of Seller, pay the balance of the Purchase Price to the
Qualified Intermediary designated by Seller.
38. NO CONTINGENCY: THE PROPERTY IS BEING PURCHASED ON AN
"AS IS WHERE IS" BASIS AND "WITH ALL FAULTS". SELLER AND
AUCTIONEER/BROKER HAVE NOT MADE AND HEREBY EXPRESSLY
DISCLAIM MAKING ANY WARRANTIES OR REPRESENTATIONS
WHATSOEVER, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE PROPERTY. WITHOUT LIMITING ITS DISCLAIMERS;
SELLER, AGENTS AND AUCTIONEER/ BROKER HEREBY ADVISE
BUYER THAT NO WARRANTIES OR REPRESENTATIONS HAVE BEEN
MADE REGARDING: THE AREA, SIZE, SHAPE, ALLOWABLE USES,
ZONING, SOIL TYPE OR QUALITY, FLOOD PLANES AND ZONES OR
TOPOLOGICAL CHARACTERISTICS OF THE LAND; THE PROPERTY
MEETING STATE STANDARDS; ENVIRONMENTAL HAZARDS OR LACK
THEREOF AFFECTING THE USE OF THE PROPERTY INCLUDING BUT
NOT LIMITED TO ASBESTOS, UNDERGROUND TANKS, ABOVE
GROUND TANKS, DUMPING GROUNDS OR ANY OTHER
ENVIRONMENTAL CONCERNS. NEITHER THE SELLER NOR
AUCTIONEER/BROKER MAKE ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED
WITHIN THE BROCHURES, DUE DILIGENCE PACKAGE OR ANY OTHER
MATERIALS. BY EXECUTION OF THIS AGREEMENT, BUYER SHALL BE
DEEMED TO REPRESENT THAT BUYER HAS CONDUCTED THEIR OWN
THOROUGH INVESTIGATION OF ALL DOCUMENTS, INFORMATION
AND ALL OTHER FACTORS CONCERNING THE PROPERTY OFFERED.
IT WILL ALSO BE DEEMED THAT THE BUYER HAS EXECUTED THIS
AGREEMENT BY HIS OWN FREE WILL, AND HAS NOT RELIED ON ANY
STATEMENTS, INFORMATION OR REPRESENTATIONS MADE BY ANY
INDIVIDUAL ASSOCIATED WITH THE PROPERTY, SELLER OR
AUCTIONEER OR BROKER.
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[Signatures begin on following page.]
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be
executed as of the day and year first above written.
SELLER:
Date executed:
_______________________________________
___________________
By: ____________________________________
Name:
Title:
BUYER:
Date executed:
_______________________________________
__________________
By: ____________________________________
Name:
Title:
The undersigned confirms its agreement to serve as Escrow Agent pursuant to the
terms of this Agreement.
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Date executed:
_______________________________________
______________________
By: ____________________________________
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