PURCHASE AGREEMENT WITH JOINT ESCROW INSTRUCTIONS

Transcription

PURCHASE AGREEMENT WITH JOINT ESCROW INSTRUCTIONS
This Purchase Agreement with Joint Escrow Instructions (“Agreement”) is drawn in connection with the
purchase and sale of the following:
AUCTIONEER: GENESIS ACQUISITION MANAGEMENT, INC.
SELLER’S BROKER:
GAM AUCTION NO.:
PROPERTY ADDRESS:
This Agreement is by and between:
SELLER:
BUYER:
Buyer and Seller agree as follows:
Section I.
LIMITATION OF SELLER’S LIABILITY AND
BUYER’S WAIVER OF IMPORTANT RIGHTS:
BUYER UNDERSTANDS AND ACKNOWLEDGES: (1) SELLER HAS ACQUIRED TITLE TO THE
PROPERTY THROUGH FORECLOSURE, DEED IN LIEU OF FORECLOSURE, OR SIMILAR
JUDICIAL, STATUTORY OR CONTRACTUAL PROCESS; (2) SELLER HAS NEVER OCCUPIED
THE PROPERTY; (3) SELLER HAS LITTLE OR NO DIRECT KNOWLEDGE ABOUT THE
CONDITION OF THE PROPERTY; (4) SELLER IS SELLING THE PROPERTY IN ITS PRESENT
AND EXISTING CONDITION AND MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER REGARDING THE PROPERTY (INCLUDING, BUT NOT LIMITED TO,
DIMENSIONS, CONDITION, TITLE, TAXES, LIENS, ETC.).
BUYER AGREES IT IS BUYING THE PROPERTY AS IS, WHERE IS, AS AVAILABLE, AND
WITH ALL FAULTS AND LIMITATIONS (INCLUDING, BUT NOT LIMITED TO, PHYSICAL
CONDITION, NATURE AND EXTENT OF IMPROVEMENTS, SUITABILITY FOR ANY
PARTICULAR PURPOSE, THIRD-PARTY OCCUPANCY/POSSESSION, RESTRICTIONS ON USE,
CLOUDS ON TITLE, TAX BURDENS, LIENS, COMPLIANCE WITH LAWS, ETC.)
ABSENT A BREACH BY THE SELLER, BUYER SHALL NOT BE ENTITLED TO A RETURN OF
BUYER’S EARNEST MONEY DEPOSIT (AS HERINAFTER DEFINED).
IN THE CASE OF BREACH BY SELLER, PURSUANT TO THE TERMS OF SECTION 16 BELOW,
BUYER MAY BE ENTITLED TO A RETURN OF BUYER’S EARNEST MONEY DEPOSIT, LESS
PA.single.prop.multi.juri.4.16.13.v
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ANY ESCROW CANCELLATION FEES (ALL OF WHICH SHALL BE BORNE BY THE BUYER)
AND LESS FEES AND COSTS PAYABLE FOR SERVICES AND PRODUCTS PROVIDED DURING
ESCROW PURSUANT TO THIS AGREEMENT AND/OR AT THE BUYER’S REQUEST. TO THE
FULLEST EXTENT PERMITTED BY LAW THE BUYER WAIVES ANY CLAIMS THAT THE
PROPERTY IS UNIQUE AND BUYER ACKNOWLEDGES A RETURN OF ITS EARNEST MONEY
DEPOSIT (LESS FEES AND COSTS AS HEREIN DESCRIBED) WILL ADEQUATELY AND
FAIRLY COMPENSATE BUYER FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT
OR IN ANY WAY ASSOCIATED WITH THE PROPERTY.
IN CASE OF SELLER’S BREACH AND UPON RETURN OF THE EARNEST MONEY DEPOSIT TO
BUYER, THIS AGREEMENT SHALL BE TERMINATED, AND BUYER AND SELLER SHALL
HAVE NO FURTHER LIABILITY, OBLIGATION, OR RESPONSIBILITY TO EACH OTHER IN
CONNECTION WITH THIS AGREEMENT OR THE PROPERTY, EXCEPT TO THE EXTENT
CERTAIN PROVISIONS OF THIS AGREEMENT EXPRESSLY SURVIVE SUCH TERMINATION.
BUYER UNDERSTANDS AND AGREES THAT SELLER HAS A RIGHT TO CANCEL THIS SALE
TRANSACTION PRIOR TO CLOSE OF ESCROW IF SELLER IS UNABLE, FOR REASONS
BEYOND ITS PRACTICAL CONTROL, TO FULLY AND TIMELY PERFORM ITS OBLIGATIONS
HEREUNDER, IN WHICH EVENT BUYER’S ONLY REMEDY WILL BE THE RIGHT TO A
RETURN OF THE EARNEST MONEY DEPOSIT ACTUALLY MADE BY BUYER (AS
GENERALLY DESCRIBED IN SECTION II.16(c), BELOW.
IF THE ESCROW CLOSES, SELLER AND BUYER SHALL HAVE NO FURTHER LIABLITY,
OBLIGATION OR RESPONSIBILITY TO EACH OTHER IN CONNECTION WITH THIS
AGREEMENT OR THE PROPERTY, EXCEPT TO THE EXTENT CERTAIN PROVISIONS OF THIS
AGREEMENT EXPRESSLY SURVIVE CLOSING.
BUYER REPRESENTS AND WARRANTS THAT, PRIOR TO MAKING THE DECISION TO
PARTICIPATE IN THE AUCTION UNDERLYING BUYER’S PURCHASE OF THE PROPERTY,
BUYER, TO ITS OWN SATISFACTION, PERFORMED A FULL AND COMPLETE
INVESTIGATION AND EXAMINATION OF PUBLIC RECORDS (INCLUDING BUT NOT
LIMITED TO, LAWS, STATUTES, CODES AND RECORDS RELATED TO LAND USE,
DOCUMENTS ON FILE WITH THE COUNTY RECORDER, INCLUDING BUT NOT LIMITED TO
ALL CONDITIONS, COVENANTS AND RESTRICTIONS, TITLE, DOCUMENTS AFFECTING
TITLE OR OCCUPANCY, TAX, AND PERMIT/BUILDING RECORDS, ETC.), AND ALL OTHER
MATTERS AND SOURCES THAT MIGHT REVEAL INFORMATION RELEVANT TO BUYER’S
INVESTIGATION OF THE PROPERTY. BUYER UNDERSTANDS AND AGREES ITS PURCHASE
OF THE PROPERTY IS SUBJECT TO PAST DUE, DELINQUENT AND CURRENT TAXES, LIENS,
RIGHTS-OF-WAY, ASSESSMENTS, EASEMENTS, PARTIES IN POSSESSION, AND OTHER
CONDITIONS, WHETHER OR NOT OF RECORD.
BUYER UNDERSTANDS THE PROPERTY MAY BE OCCUPIED AND IN THE PHYSICAL
POSSESSION OF A THIRD-PARTY OR SUBJECT TO CLAIMS THEREFOR. SELLER MAKES NO
WARRANTY REGARDING ANY SUCH THIRD-PARTY’S RIGHTS TO OCCUPY THE PROPERTY
OR THE DURATION OF SAME. BUYER ACCEPTS AND ASSUMES ALL RISK ASSOCIATED
WITH SUCH THIRD-PARTY OCCUPANCY/ POSSESSION OR RELATED CLAIMS, AND
WAIVES ANY AND ALL RIGHT TO TERMINATE ITS OBLIGATION TO PURCHASE THE
PROPERTY BASED ON SUCH THIRD-PARTY OCCUPANCY/POSSESSION OR RELATED
CLAIMS. BUYER UNDERSTANDS IT MAY BE SUBJECT TO THE PROTECTING TENANT’S AT
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FORECLOSURE ACT OF 2009, OR OTHER SIMILAR FEDERAL OR STATE TENANT
PROTECTION LAWS OR REGULATIONS.
SELLER’S LIMITATION OF LIABILITY AND BUYER’S WAIVERS AS SET FORTH IN THIS
AGREEMENT ARE A MATERIAL PART OF THE CONSIDERATION TO SELLER - CONSISTENT
WITH THE TERMS AND CONDITIONS OF AUCTIONEER’S AUCTIONS THROUGH WHICH
BUYER OBTAINED THE RIGHT TO PURCHASE THE PROPERTY – AND BUYER FURTHER
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE FOLLOWING:
(a) ALL RIGHTS TO FILE AND MAINTAIN AN ACTION AGAINST SELLER FOR SPECIFIC
PERFORMANCE;
(b) THE RIGHT TO RECORD A LIS PENDENS AGAINST THE PROPERTY OR TO RECORD
THIS AGREEMENT OR A MEMORANDUM THEREOF WITH THE COUNTY RECORDER
OF THE COUNTY IN WHICH THE PROPERTY EXISTS;
(c) THE RIGHT TO INVOKE ANY EQUITABLE REMEDY THAT MIGHT PREVENT SELLER
FROM CONVEYING THE PROPERTY TO A THIRD-PARTY BUYER;
(d) ANY REMEDY OF ANY KIND THAT BUYER MIGHT OTHERWISE BE ENTITLED TO AT
LAW OR EQUITY (INCLUDING BUT NOT LIMITED TO, RESCISSION OF THIS
AGREEMENT), EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT;
(e) ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR IN ANY
WAY RELATED TO THIS AGREEMENT;
(f) ANY RIGHT TO AVOID THE SALE OF THE PROPERY OR REDUCE THE TOTAL
PURCHASE PRICE OR HOLD SELLER LIABLE FOR: (1) ANY TAXES OR LIENS
ASSOCIATED WITH THE PROPERTY, WHETHER CURRENTLY DUE, PAST DUE, OR
DELINQUENT; (2) CLAIMS ARISING OUT OF OR RELATED IN ANY WAY TO THE
CONDITION, IMPROVEMENT, CONSTRUCTION, REPAIR, TREATMENT, OR LATENT
OR PATENT DEFECTS OF THE PROPERTY; (3) LAND USE RESTRICTIONS, ZONING,
BUILDING CODES GOVERNING THE PROPERTY OR THE USE THEREOF, AND ANY
VIOLATIONS OF ANY OF THE FOREGOING; (4) CONDITIONS, COVENANTS, AND/OR
RESTRICTIONS GOVERNING PROPERTY USE OR APPEARANCE AND ANY
VIOLATIONS THEREOF; (5) ENVIRONMENTAL, ATMOSPHERIC, OR GEOLOGIC
CONDITIONS AND/OR HAZARDS AT OR NEAR THE PROPERTY; (6) OTHER BURDENS
OR COSTS ASSOCIATED WITH THE PROPERTY, OF WHATEVER SORT; AND (7) ANY
STATUTORY RIGHT TO RESCIND THE AGREEMENT BASED ON THE PROPERTY
BEING A PART OF A COMMON INTEREST, PLANNED DEVELOPMENT,
HOMEOWNERS OR CONDOMINIUM ASSOCIATION. THIS PARAGRAPH APPLIES
IRRESPECTIVE OF WHETHER SELLER HAD NOTICE OF THE DESCRIBED
CONDITIONS, WHETHER BUYER WAS ABLE TO PHYSICALLY INSPECT THE
PROPERTY, AND WHETHER OR NOT SELLER FAILED TO DISCLOSE SAME TO
BUYER, IT BEING UNDERSTOOD THAT BUYER HAS TAKEN THE FOREGOING INTO
ACCOUNT WHEN DETERMINING THE PURCHASE PRICE IT WAS WILLING TO PAY
FOR THE PROPERTY.
(g) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO ENCROACHMENTS,
EASEMENTS, RIGHTS OF WAY, BOUNDARIES, SHORTAGES IN AREA OR ANY
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OTHER MATTER THAT WOULD BE DISCLOSED OR REVEALED BY A SURVEY OR
INSPECTION OF THE PROPERTY OR SEARCH OF PUBLIC RECORDS, WHETHER OR
NOT BUYER WAS ABLE TO PHYSICALLY INSPECT THE PROPERTY, IT BEING
UNDERSTOOD THAT BUYER HAS TAKEN THE FOREGOING INTO ACCOUNT WHEN
DETERMINING THE PURCHASE PRICE IT WAS WILLING TO PAY FOR THE
PROPERTY.
(h) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THE SQUARE
FOOTAGE, SIZE OR LOCATION OF THE PROPERTY, THE SQUARE FOOTAGE,
DIMENSIONS, DESIGN OR CONFIGURATION OF ANY IMPROVEMENT ON THE
PROPERTY, OR ANY INFORMATION PROVIDED ON AUCTIONEER’S AUCTION
WEBSITE, OR ANY STATEMENT, REPRESENTATION, ACTION OR CONDUCT OF
SELLER, SELLER’S BROKER, OR AUCTIONEER, IT BEING UNDERSTOOD THAT
NONE OF SELLER, SELLER’S BROKER, OR AUCTIONEER HAS MADE ANY
REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING ANY MATTER WITH
RESPECT TO THE PROPERTY, EXCEPT AS MAY SPECIFICALLY BE SET FORTH
HEREIN; AND
(i) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO ONE OR MORE
TENANT(S), OCCUPANT(S), OR THIRD-PARTY(IES) IN POSSESSION OF THE
PROPERTY OR MAKING CLAIM THERETO.
THE SELLER’S LIMITATION OF LIABILITY AND BUYER’S WAIVERS AS HEREINABOVE SET
FORTH SHALL SURVIVE THE CLOSING OF THE PURCHASE AND SALE TRANSACTION
CONTEMPLATED HEREBY OR THE EARLIER TERMINATION OF THIS AGREEMENT.
SELLER’S INITIALS:_______________
BUYER’S INITIALS:________________
Section II.
TERMS OF SALE
1.
IDENTIFIERS:
a. Seller:
Seller’s Name:
Seller’s Address:
Address Cont’d:
Contact Person:
Phone:
Fax:
Email:
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b. Buyer:
Buyer’s Name:
State of Incorporation or Organization:
Buyer’s Address:
Address Cont’d:
Contact Person:
Phone:
Fax:
Email:
c. Purchase Price:
Amount of Winning Bid:
Buyer’s Premium:
TOTAL PURCHASE PRICE:
Earnest Money Deposit:
(“Earnest Money Deposit” shall be five percent (5%) of Total Purchase Price, and shall be sent to Escrow
via wire transfer within one business day of the signing of this Agreement.)
d. Property:
Property Address:
e. Escrow:
Escrow Agent:
Address:
Phone:
Fax:
Email:
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f. Title Insurance Company:
Title Company:
Address:
Phone:
Fax:
Email:
2.
PURCHASE AND SALE:
On and subject to the terms of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller the real property identified above in Section II.1.d, above, (the “Property”) for the
price identified in Section II.1.c as the Total Purchase Price. The Property includes the permanent
improvements thereon, including those items which California law defines as being part of the Property,
at the close of Escrow. Seller makes no representation or warranty as to the existence, condition,
ownership or right of possession of any personal property located on the Property.
3.
PAYMENT OF PURCHASE PRICE:
Buyer shall pay Seller the Total Purchase Price, and other fees and costs, as follows:
(a) Buyer will, via wire transfer, deposit with Escrow identified in Section II.1.e above the Earnest
Money Deposit described above in Section II.1.c, above within one business day of the time and
date on which Buyer signs this Agreement. If at the time of such transfer Escrow has not yet
received a Seller signed Agreement, such Earnest Money Deposit shall be held in a neutral
escrow depository account for the account of Buyer pending receipt by Escrow of a copy of this
Agreement executed by Seller, and the open of Escrow.
(b) Buyer shall, prior to the close of Escrow, deposit with Escrow in immediately available funds an
amount equal to the balance of the Total Purchase Price, plus all escrow fees and closing costs,
Auctioneer transaction management charges, recording fees, title insurance premium and fees
(including without limitation the cost of any Posted Report, as described in Section II.5, below),
document preparation fees, documentary transfer taxes, property taxes and other liens on the
Property, homeowners’ association, condominium association or other association fees, any
interest or penalties that may accrue with respect to any of the foregoing, plus all other Buyer
expenses as provided herein.
4.
FINANCING:
Buyer understands, acknowledges, and agrees, as follows:
(a) Neither Buyer’s purchase of the Property, nor any provision of this Agreement, is contingent on
Buyer obtaining financing for the purchase of the Property. Although there is no financing
contingency, should Buyer anticipate financing the purchase, Buyer must confirm availability of
financing to the satisfaction of Seller, in its sole discretion, at open of Escrow as being timely
available to facilitate the scheduled close of Escrow.
Buyer’s Initials:
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(b) Seller shall make no concessions, nor will Seller, Seller’s Broker or Auctioneer, discount any fees
or costs for any financing programs such as BA, FHA, Bond assisted, City Assisted, or other loan
programs, nor will Escrow be extended for any purpose associated with such programs.
(c) Seller, Seller’s Broker and/or Auctioneer, are authorized to check, and Buyer’s lender is
authorized to report to Seller, Seller’s Broker and/or Auctioneer, regarding Buyer’s current credit
and loan status, including the release of copies of any written loan approval and commitment to
Escrow agent and/or Seller.
(d) If Buyer elects to obtain financing, Buyer is doing so at Buyer’s sole cost and expense, and
without obligation on the part of Seller.
(e) Genesis Capital Partners, Inc. is licensed as a real estate and finance lending broker in California
and has an ongoing business relationship with Auctioneer. Genesis Capital Partners, Inc. may
offer or may be engaged by Buyer to obtain and/or provide financing/lending services to Buyer in
connection with Buyer’s purchase of the Property. Buyer hereby acknowledges Genesis Capital
Partners, Inc. is not acting as Buyer's broker or a dual agent in any aspect of the purchase of the
Property, but rather may act as Buyer's broker only with respect to obtaining loans and/or other
financing in connection with such purchase, only. As such, Buyer recognizes and acknowledges
Genesis Capital Partners, Inc. shall owe no fiduciary duty to Buyer with respect to purchase and
sale of the Property under this Agreement, but only with respect to any such loans and/or other
financing to the extent Buyer engages Genesis Capital Partners, Inc. for such purposes. Buyer
further understands and agrees Genesis Capital Partners may charge certain fees, costs, and
interest to Buyer in connection with the provision of financing/lending services provided to Buyer
by Genesis Capital Partners, Inc. in connection with the financing of the Property hereby acquired
by Buyer.
5.
OPENING OF ESCROW:
In connection with Buyer’s purchase of the Property, Buyer has been notified, prior to entering into this
Agreement, that Buyer has the right, under the “Buyer’s Choice Act”, to make an independent selection
of the entity that will act as Escrow Agent and also the title insurer from which Buyer shall purchase a
title insurance policy. Should Buyer, consistent with Buyer’s right pursuant to the “Buyer’s Choice Act” to so do,
choose to purchase title insurance through a title insurer other than the title insurer that prepared the preliminary title
search/preliminary title report posted on Auctioneer’s website (“Posted Report”) in connection the auction of the
Property, Buyer nonetheless agrees, as part of closing costs, to pay the cost of the Posted Report. Buyer has been
further notified that Seller has recommended the services of an escrow agent and title insurer, and such
companies are prepared to close the sale of the Property within the required time frames established for
this transaction. If Buyer elects to use an escrow agent and title insurer other than as recommended by
Seller, Buyer is advised and acknowledges that time is of the essence in this transaction and that Buyer’s
timely performance shall be strictly enforced, and failure of Escrow Agent or Title Insurance Company to
timely and adequately perform their distinct functions, as determined by Seller and/or Auctioneer in
its/their unfettered discretion, will entitle Seller to an Extension Fee (as defined by Section II.6(b)(3),
below). Seller and Buyer shall, within twelve (12) business hours of the mutual execution of this
Agreement, open an escrow account related to the purchase and sale of the Property consistent with this
Agreement, which Escrow shall be with the Escrow Agent/company designated in Section II.1.e, above.
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Escrow shall be opened upon Escrow Agent receiving copies of this Agreement executed by Buyer and
Seller, respectively. This Agreement shall constitute joint escrow instructions to the Escrow Agent who
shall handle and close the purchase and sale transaction as set forth herein.
Seller’s Initials:
6.
Buyer’s Initials:
CLOSE OF ESCROW:
(a) EFFECTIVE DATE; CLOSING DATE: Nothwithstanding any prior understanding or agreement
between the parties, or any other provision of this Agreement to the contrary, the date of Seller’s
execution of this Agreement shall be the “Effective Date” of the Agreement. As used herein, the
term “Closing Date” refers to the date on which Seller receives out of Escrow Seller’s portion of
the Total Purchase Price to be paid by Buyer under the Agreement and Buyer receives, or is
deemed to have received, from Seller the deed to the Property (if such events occur on different
days, then the Closing Date shall be the later of the two days). Notwithstanding any provision of
this Agreement to the contrary, Closing Date shall occur on a date that is no later than 15 days
after the Effective Date. If the Closing Date falls on a weekend or a state or federally recognized
holiday, Closing shall occur on the next business day, subject to sub-section II.6(b), below. In the
event Seller is unable to close Escrow, the Seller may, at Seller’s sole discretion, extend the
Closing Date upon prior written notice to the Buyer.
(b) Escrow Agent is instructed to close Escrow on the Closing Date (as is set forth in sub-paragraph
6(a), above), subject to each of the following:
(1) If the purchase and sale of the Property has been cancelled or terminated as permitted
elsewhere in this Agreement, then Escrow Agent shall not close Escrow.
(2) If Buyer chooses to use an Escrow Agent or Title Insurance Company other than as
recommended by Seller and Closing Date is extended due to failure of such Escrow Agent
or Title Insurance Company to timely and adequately perform its functions, as determined
by Seller and/or Auctioneer in their/its unfettered discretion, or if Buyer requests an
extension of the Closing Date, Buyer agrees to pay to the Seller a non-refundable per diem
amount of $200 (the “Extension Fee”) for each day of such extension through and including
the actual date of close of Escrow. Any such extension shall: (i) be in writing, (ii) specify
the extended Closing Date, and (iii) be subject to the pre-approval of Seller. Any extension
contemplated by this provision that fails to specify the extended Closing Date shall be void.
The Extension Fee shall be paid by Buyer in addition to the Total Purchase Price and any
other fees and costs payable under this Agreement.
(3) If the Closing Date is extended pursuant to an sub-section II.6(a), above, an addendum to
this Agreement, or mutual written instruction to Escrow Agent, then Escrow Agent shall
close Escrow on the Closing Date as so extended.
(c) CLOSING INDEMNITY: In addition to the indemnity set forth elsewhere in this Agreement,
Buyer agrees to indemnify, defend and hold Seller, Seller’s Broker and Auctioneer and its/their
representatives, employees, attorneys and agents (collectively “Seller Indemnified Parties”)
harmless from and against any and all actions (whether administrative, judicial or presented in
any arbitration, mediation, dispute resolution or other adjudication proceeding), losses, costs,
damages, claims, penalties, sanctions, liabilities and expenses (including litigation expenses,
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court costs, investigation costs, settlement costs and reasonable attorney’s fees) of any kind or
character and whether known or unknown, fixed or contingent, joint or several, criminal or civil,
legal or equitable, brought, sought, suffered or incurred by or against any Seller Indemnified
Parties resulting from, arising out of or in any way relating to: (i) any diligence or inspection
activities of Buyer, its agents or other representatives; (ii) the ownership, condition, maintenance
or operation of the Property and attributable to events occurring on or after the close of Escrow;
(iii) claims for amounts due or owed by any of Seller Indemnified Parties the responsibility for
which has been allocated to or assumed by Buyer under the Terms and Conditions (defined
below) and/or this Agreement, including without limitation, Buyer’s closing costs,
homeowners/condominium owners association dues, fees and assessments, property taxes,
assessments and other governmental charges; (iv) any unlawful detainer, eviction or other
proceedings commenced or maintained against any occupants of the Property or any claimants
by, through, or on behalf of Buyer, its successors and assigns; and (v) Buyer’s breach of any of its
obligations under the Terms and Conditions and this Agreement. The provisions of this
paragraph shall survive close of Escrow and recordation of the Deed.
7.
CLOSING INSTRUCTIONS TO ESCROW AGENT:
At the close of Escrow, Escrow Agent is hereby irrevocably instructed to complete the following:
(a) Record the Deed conveying title to the Property to Buyer. The term “Deed” shall mean a Grant
Deed, Quitclaim Deed, or other form of deed acceptable to Seller in Seller’s sole and absolute
discretion. The Deed to be delivered at close of Escrow shall be a deed that grants only whatever
title Seller as grantor may have, and it is agreed and understood that Seller as grantor will only
defend title against persons claiming by, through, or under the Seller as grantor, but not
otherwise. Buyer understands, acknowledges and agrees that any warranties contained in such
Deed, whether express or statutory, shall survive the recordation of the Deed and shall inure to
the benefit of Buyer for a period of ninety (90) days following the Closing Date. In the event
Buyer does not give written notice alleging a claim against Seller with respect thereto within such
ninety (90) day period, then Seller shall have no further liability or obligation to Seller with
respect thereto.
(b) Pay all fees, costs, deed and transfer taxes for the sale of the Property which are required to be
paid by Buyer under this Agreement, it being understood that Buyer is responsible for and shall
pay all escrow fees and closing costs, Auctioneer transaction management charges, recording
fees, title insurance premium and fees, document preparation fees, documentary transfer taxes,
property taxes and other liens on the Property, homeowners’ association, condominium
association or other association fees, any interest or penalties that may accrue with respect to any
of the foregoing, plus all other Buyer expenses as provided herein.
(c) Pay an amount equal to the Buyer’s Premium and/or any transaction management fees due
Auctioneer, and/or fees and/or commissions due Seller’s Broker. Buyer was/is not represented by
a broker in any negotiation or auction bidding underlying the purchase and sale of the Property,
and Escrow is instructed not to pay any entity or individual claiming a fee or commission for any
such services in behalf of Buyer.
(d) Pay to Seller the Total Purchase Price, less Buyer’s Premium, and any other funds remaining at
the close of Escrow.
8.
PREVIOUS ESCROW/TRANSACTION:
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If there was an escrow previously opened at any escrow company, title company or with any closing
agent and/or a separate contract exists by and between Seller and any third party, covering the sale of the
Property (“Previous Transaction”), the close of Escrow under this Agreement is subject to and contingent
upon Seller’s willingness and ability to successfully cancel the Previous Transaction, if any, prior to or
concurrently with the close of Escrow. This condition precedent shall be deemed satisfied when Escrow
Agent is in possession of a copy of signed cancellation instructions from Seller and the buyer in the
Previous Transaction. Failure to obtain such cancellation prior to the Closing Date (as the same may be
extended hereunder) shall not be deemed a default of Seller hereunder, but shall serve to terminate this
Agreement, in which event Buyer shall receive a return of the Earnest Money Deposit (less any escrow
cancellation fees, all of which shall be borne by the Buyer, and less fees and costs payable for services
and products provided during Escrow pursuant to this Agreement and/or at Buyer’s request), and Buyer
and Seller shall have no further obligation to each other with respect to this Agreement except such
provisions as expressly survive such termination.
9.
DELIVERIES TO ESCROW AGENT:
(a) BY SELLER. Prior to the close of Escrow, Seller shall deposit with the Escrow Agent the
following (the “Seller’s Deliveries”): (1) a Deed transferring Seller’s interest in the Property to
Buyer executed by Seller and acknowledged consistent with requirements of governing law; (2) It
is stipulated between Buyer and Seller that Seller is not a “non-resident alien”, “foreign
corporation”, “foreign partnership”, “foreign trust” or “foreign estate” as those terms are defined
by the Foreign Investment in Real Property Tax Act (“FIRPTA”), Internal Revenue Code §1445.
It is stipulated Seller is exempt from the withholding requirements of FIRPTA and similar
governing state laws (e.g. Cal FIRPTA), and Seller shall not be required, whether through escrow
or otherwise, to provide any affidavit or other documentation in connection with such matters.
(b) BY BUYER. Prior to the Close to Escrow, Buyer shall deposit with the Escrow Agent, the
following (the “Buyer’s Deliveries”): (1) immediately available good funds in an amount equal to
the Total Purchase Price less the amount of the Earnest Money Deposit previously deposited into
Escrow, plus all escrow fees and closing costs, Auctioneer transaction management charges,
recording fees, title insurance premiums and fees, document preparation fees, documentary
transfer taxes, property taxes and other liens on the Property, homeowners’ association,
condominium association or other association fees, any interest or penalties that may accrue with
respect to any of the foregoing, plus all other Buyer expenses as provided herein; (2) a
Preliminary Change of Ownership Statement, or similar form, as may be required by governing
law or Escrow Agent; and (3) any and all other instruments required by Buyer’s lender, Escrow
Agent or otherwise to consummate Buyer’s acquisition of the Property.
(c) FINAL FUNDS TO CLOSE ESCROW. All parties acknowledge that good funds are required to
close Escrow. Good funds are defined as cash or electronic transfer (wired funds) such that
Escrow Agent can disburse the funds on the same business day as the business day of the deposit.
Deposits with the Escrow Agent in the form of funds other than cash or electronic transfer (wired
funds), such as cashier’s or certified checks, out of state checks and all drafts that are subject to
waiting or hold periods that might delay close of Escrow do not constitute good funds.
10.
CANCELLATION OF ESCROW:
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(a) DEFAULT. If, due to a failure of a party to perform any of its obligations hereunder, the Escrow
does not close by the Closing Date (subject to the provisions of Section II.6, above), then the nondefaulting party may cancel the Escrow by written notice to the defaulting party, the Escrow
Agent and the Title Company, and the non-defaulting party shall have such remedies as provided
in Section II.16, below.
(b) OTHER CANCELLATION. If Seller elects to cancel the transaction as permissible under the
terms of this Agreement for reasons other than Buyer’s default, Seller may cancel the Escrow by
written notice to the Buyer and the Escrow Agent, and the Buyer shall have such remedies as
provided in Section II.16(c), below, only.
(c) ADDITIONAL ESCROW INSTRUCTIONS. Seller and Buyer have read and agreed to all of the
additional escrow instructions, if any, which are attached hereto as Exhibit B and incorporated in
this Agreement. In the event of a conflict between any additional escrow instructions set forth in
Exhibit B (or other separate document) and this Agreement, including all other Exhibits and
attachments hereto, the terms of this Agreement and its other Exhibits and attachments shall
control.
(d) WAIVER OF LIABILITY. Should the transaction and/or Escrow be cancelled by either Seller or
Buyer, as permitted under any provision of this Agreement or as otherwise permitted by law,
Buyer releases and waives any and all claims against Seller, Seller’s Broker and Auctioneer for
losses, costs, damages, claims, penalties, sanctions, liabilities and expenses (including litigation
expenses, court costs, investigation costs, settlement costs and reasonable attorney’s fees) of any
kind or character and whether known or unknown, fixed or contingent, joint or several, criminal
or civil, legal or equitable, brought, sought, suffered or incurred by Buyer resulting from,
underlying, arising out of or in any way relating to the transaction, this Agreement or Escrow.
11.
BUYER’S INSPECTION:
(a) REPRESENTATIONS/WARRANTIES. Buyer is a sophisticated investor and its bid and
decision to purchase the Property are based upon its own independent expert investigations and
its evaluations of the materials made available by Seller and/or Auctioneer and deemed relevant
by Buyer. Buyer represents and warrants to Seller that: (1) prior to the execution of this
Agreement, Buyer has had adequate time to: (i) assess the Property and, to the extent access to
the Property was available, conduct a physical inspection of the Property sufficient and
satisfactory in all respects to Buyer, (ii) examine all title and other matters concerning the
Property, and (iii) review and consider all agreements and burdens relating to the Property,
including but not limited to the disclosures and reports required by any law, rule or ordinance; (2)
prior to the execution of this Agreement, Buyer has conducted and completed such inspections,
examinations and review, or has freely and voluntarily waived the right to conduct any such
inspections, examinations and reviews, and, to the extent access to the Property was not available
for certain inspections, has taken the same into account in determining the purchase price Buyer
is willing to pay for the Property; (3) Buyer is purchasing the Property based solely upon Buyer’s
own inspection and investigation of the Property, and all its aspects; (4) prior to the execution of
this Agreement, Buyer has satisfied itself in all respects as to the Property and the condition
thereof, including, without limitation, the value of the Property, its location, its insurability, its
physical condition, its environmental condition, the structural or environmental integrity of any
and all improvements on the Property, all taxes currently due, past due or delinquent, all title
matters concerning the Property, all applicable common interest community and unit owner’s or
homeowner’s association documents, rules and regulations concerning the Property, and all other
11
matters with respect to the Property; and (5) Buyer is aware of all laws, rules, ordinances and
requirements affecting the use, condition and ownership of the Property, including, without
limitation, all applicable zoning, building code and land use regulations and local ordinances, and
any violations thereof. In entering into this Agreement, Buyer has not relied upon any oral or
written information from Seller, Auctioneer, or any of their respective employees, affiliates,
agents or representatives. Buyer acknowledges that no employee or representative of Seller or
Auctioneer has been authorized to make, and that Buyer has not relied upon, any statements or
representations. Without limiting the foregoing, Buyer acknowledges that Seller, Seller’s Broker
and Auctioneer, and all its/their agents make no representation or warranty, and Buyer has
investigated to Buyer’s satisfaction whether the location of the Property is in an earthquake fault
zone, seismic hazard zone, flood hazard zone, state responsibility area (fire hazard area), very
high fire hazard severity zone, area of potential flooding, area with soil stability problems (e.g.
sink holes, etc.), or area subject to risk of hurricane, severe storms or hail, or whether the Property
is subject to any flood disaster or other insurance requirements, or whether the Property contains
wetlands or other environmental constraints, and Buyer accepts all risks associated with the
location of the Property.
Buyer further understands and acknowledges that Seller is selling the Property in its present and
existing condition, physical or otherwise, and makes no warranty regarding the current existence
or condition of any improvement. Buyer acknowledges and agrees that prior to entering into this
Agreement, Buyer had the opportunity to conduct its own due diligence in connection with the
Property, including investigations and consideration of the condition of the entire Property in
order to determine its present physical condition and value and to the extent access to the
Property was unavailable, has taken the same into account in determining the purchase price
Buyer is willing to pay for the Property. Seller may not be aware of all or any defects affecting
the physical condition of the Property or other concerns, of whatever sort, which might be
considered important to Buyer. Neither Seller, Seller’s Broker, nor Auctioneer, makes any
representation or warranty regarding: (1) suitability to build upon, improve or inhabit the
Property; (2) the value, lot size, dimensions, or property lines of the Property; (3) any legal right
to shared physical access and/or boundaries including features of the Property shared in common
with adjoining landowners (e.g. walls, fences, roads and driveways, etc.) whose use or
responsibility for maintenance may have an effect on the Property; and (4) any encroachments,
easements, burdens, or similar third-party rights or matters that may affect or restrict the use,
value, condition, improvability of or title to the Property. Buyer understands fences, hedges,
walls and other natural or constructed barriers or markers do not necessarily identify true Property
boundaries.
(b) BUYER INDEMNITY AND SELLER PROTECTION RELATED TO PROPERTY ENTRY. In
connection with any Buyer’s due diligence, inspection, visit, and/or investigation of the Property
(“Buyer’s Inspection”) by Buyer or any person/entity acting on Buyer’s behalf, whenever
occurring, Buyer shall: (1) keep the Property free and clear of liens associated with Buyer’s
Inspections; (2) repair all damage resultant of Buyer’s Inspection; and (3) indemnify, defend and
hold Seller and its agents harmless against all claims, causes, judgments, liability, demands,
damages and/or costs directly or indirectly arising from Buyer’s Inspection. Buyer shall carry, or
require anyone acting on Buyer’s behalf to carry, policies of liability, worker’s compensation, and
other appropriate insurance, defending and protecting Seller from liability for any injuries to
persons or property occurring during or arising out of any Buyer’s Inspection prior to the close of
Escrow, or provide alternative assurance of financial responsibility acceptable to Seller in its sole
discretion. Notwithstanding any other provision of this Agreement, the obligations and
12
agreements of Buyer under this paragraph shall survive the close of Escrow or the earlier
termination of this Agreement.
12.
DISCLOSURES:
(a) Buyer acknowledges that Seller’s acquisition of the Property may have resulted from a transfer
made by a beneficiary under a deed of trust who acquired the Property at a sale conducted
pursuant to a power of sale under a deed of trust, or a deed in lieu of foreclosure, or pursuant to a
judicial foreclosure as permitted by governing law. Consistent with the law of certain
jurisdictions (e.g. California), Seller may be exempt from requirements that certain disclosures be
made in connection with the sale of the Property, including without limitation disclosures under
the Real Estate Transfer Disclosure Statement (see, for example, California Civil Code §1102, et
seq.), and under the Natural Hazards Disclosure Statement (see, for example, California Civil
Code §1103, et seq.). Therefore, depending on governing law, it may be that any rights Buyer
might otherwise have had in connection with such disclosure statements are not be available to
Buyer in the purchase and sale transaction contemplated by this Agreement, including, without
limitation, any right to terminate this Agreement under the cited, or other, provisions of
governing law. Further, irrespective of how Seller obtained title to the Property, Seller is not
familiar with the condition of the Property, other than as may be disclosed in any inspection
reports obtained by or in behalf of Seller or that Seller may otherwise have in its possession. Any
and all such reports or other information as are furnished by Seller, Seller’s Broker, or
Auctioneer, in connection herewith: (1) shall be for informational purposes only; (2) are not made
part of this Agreement; and (3) are not by Seller represented or warranted to be accurate or
complete. In consideration of Seller’s execution of this Agreement, Buyer covenants and agrees
neither Buyer, nor any third-party purporting to take action or claim right by or through Buyer,
will sue, commence, prosecute or in any way participate in any judicial, administrative, or
regulatory proceedings for breach of contract based on any disclosures or lack of disclosure
relating to any alleged breach or violation of any state or other law, rule or regulation by Seller,
Seller’s Broker, or Auctioneer.
(b) OTHER DISCLOSURES.
(1) ASSESSMENTS. Buyer agrees that, if the Property is subject to any special assessments or
special taxes or fees imposed by a government or quasi-governmental entity, Buyer shall be
responsible and shall pay for any and all tax or assessment amounts, whether due in a lump sum
or in installments, and whether past due, currently due or delinquent or which may accrue after
close of Escrow, including any interest or penalties that may accrue with respect to the foregoing.
(2) RADON. Radon is a naturally occurring radioactive gas that when accumulated in a
building in sufficient quantities may present health risks to persons who are over time exposed to
it. Levels of radon that exceed federal and state guidelines may have been found in buildings in
the state where the Property is located. Additional information regarding radon and radon testing
may be obtained from your county or state public health unit. Buyer represents and warrants the
it has not relied on the accuracy or completeness of any representations made by the Seller,
Seller’s Broker or Auctioneer, as to the presence or absence of radon, and Buyer has not relied on
the Seller’s, Seller’s Broker’s, or Auctioneer’s lack of provision of information regarding the
presence or effects of any radon found on the Property. Real estate brokers and agents are not
generally qualified to advise buyers on radon treatment or its health and safety risks, and, without
13
regard to the binding nature of this Agreement, Buyer should acquaint itself with all conditions of
the Property.
(3) MOLD. Mold occurs naturally and may cause health risks or damage to property. If Buyer
is concerned or desires additional information regarding mold, Buyer should contact an
appropriate professional. Real property and improvements are or may be affected by water or
moisture damage, toxic mold, and/or other environmental hazards or conditions. Seller advises
Buyer that as a consequence of possible water damage and/or excessive moisture, the Property
may be or has been irremediably contaminated with mildew, mold, and/or other microscopic
organisms. Buyer is advised that exposure to certain species of mold may pose serious health
risks, and those individuals with immune system deficiencies, infants and children, the elderly,
individuals with allergies or respiratory problems, and pets are particularly susceptible to
experiencing adverse health effects from mold exposure. Buyer acknowledges Seller has advised
Buyer to make its own inspection and evaluation of the Property, and Buyer has made its own
inspection and evaluation of the Property, and has satisfied itself as to all aspects of the Property,
and agrees to purchase and accepts the Property AS IS, WHERE IS, AS AVAILABLE WITH
ALL FAULTS AND LIMITATIONS.
Buyer acknowledges Seller has advised that all areas contaminated with mold, and/or other
environmental hazards or conditions should be properly and thoroughly remediated, and Buyer
acknowledges and agrees it is the sole responsibility of Buyer to conduct any remediation on/of
the Property. Further, Seller has alerted Buyer that habitation of the Property without complete
remediation of any mold or other environmental hazards or conditions that may exist may subject
inhabitants to potentially serious health risks and/or bodily injury. Buyer acknowledges such
risks and hazards, and agrees it is buying the Property AS IS, WHERE IS, AS AVAILABLE
WITH ALL FAULTS AND LIMITATIONS.
Buyer is electing to purchase the Property from Seller in its AS IS, WHERE IS, WITH ALL
FAULTS AND LIMITATIONS with the full understanding that the condition of the Property
may expose individuals to potentially serious health risks, and associated liability on the part of
Buyer as owner of the Property for claims, losses, and damages arising out of any toxic mold
contamination, and/or other environmental hazards or conditions on the Property. Buyer agrees
the Total Purchase Price of the Property reflects the agreed value of the Property AS IS, WHERE
IS, AS AVAILABLE WITH ALL FAULTS AND LIMITATIONS taking into account the
described risks.
(4) LEAD-BASED PAINT DISCLOSURE. If the Property was built prior to 1978, the Seller
shall: (i) notify the Buyer of any known lead-based paint or lead-based paint hazards in the
Property, (ii) provide the Buyer with any lead-based paint risk assessments or inspections of the
Property in the Seller’s possession, (iii) provide the Buyer with the Disclosure of Information on
lead-based paint and lead-based paint hazards, and any report, records, pamphlets, and/or other
materials referenced therein, including the pamphlet “Protect Your Family From Lead In Your
Home” (collectively “LBP Information”). Buyer acknowledges and agrees Buyer has received
and had sufficient opportunity to read and understand the LPB Information. Buyer shall return a
signed copy of the Disclosure of Information on lead-based paint and lead-based paint hazards to
Seller prior to close of Escrow. Buyer acknowledges the opportunity to conduct lead-based paint
risk assessments or inspections prior to Buyer’s execution of this Agreement. Buyer further
waives its right as set forth in 42 USC §4852D and any other applicable law to conduct a risk
assessment or inspection for the presence of lead-based paint hazards.
14
Buyer’s Initials:
(5) PROPERTY TAX DISCLOSURE SUMMARY. Buyer agrees to pay all past due, delinquent
and current property taxes, including any interest or penalties that may accrue with respect to the
foregoing, without proration to or contribution by Seller. Buyer should not rely on the Property’s
current property assessment as the amount of property taxes Buyer will be obligated to pay in any
year subsequent to Buyer’s purchase of the Property. A change of ownership, use, or property
improvements may trigger reassessments of the Property that could result in higher property
taxes. If Buyer has any questions concerning valuation, Buyer is advised to contact the governing
tax assessor/appraiser in the county in which the Property is situated for information.
(6) PERMITS AND REPAIRS. If the Property is located in a jurisdiction that requires a
certificate of occupancy, smoke detector certification, septic certification or any similar
certification or permit or any form of improvement or repair to the Property (collectively “Permits
and Repairs”), Buyer acknowledges and agrees Buyer shall be responsible for obtaining any and
all Permits and Repairs at Buyer’s sole cost and expense, including but not limited to any
certificate of use or other certification required by the governing law, ordinance, or regulation.
Seller makes no representations or warranties regarding compliance or conformity with any
building codes, law, rules, or regulations.
(7) BUILDING AND ZONING CODES. Seller makes no warranty or representation regarding
building and zoning codes, and has no information regarding transportation beltways and/or
planned or anticipated land use in the neighborhood or area proximate to the Property. Seller
makes no representations or warranties regarding compliance or conformity with any building
codes, laws, rules, or regulations. Buyer has had opportunity consult with local land use planning
or other governing entities regarding such matter, and accepts all risks associated with such.
(8) CONDOMINIUM/PUD/HOMEOWNERS ASSOCIATION. If the Property is in a common
interest community, planned community, or in any part or condition subject to or a part of a
Homeowner’s Association or Condominium Association, unless otherwise required by law,
Buyer acknowledges Buyer, at Buyer’s sole expense, was and is responsible for obtaining and
reviewing a copy of any governing Declaration of Conditions, Covenants and Restrictions and/or
bylaws and other documentation governing and/or regarding such common interest community,
planned community, Homeowner’s Association, and/or Condominium Association. Buyer
acknowledges that, prior to Buyer’s execution of this Agreement, Buyer has reviewed such
documentation to the fullest extent Buyer deems necessary and, upon execution of this
Agreement, Buyer is deemed to have accepted the declaration of covenants, conditions and
restrictions, and/or the bylaws and other documentation governing of the common interest
community, planned community, or Homeowner’s Association, and/or Condominium
Association in connection with Buyer’s purchase, improvement, resale, and/or use of the
Property. Seller and Buyer acknowledge the requirements of governing law in some jurisdictions
that in certain circumstances Seller obtain and provide information to Buyer related to fees,
defects, Conditions, Covenants and Restrictions, by-laws, rules, governing documents,
architectural controls, and other Property, neighborhood or association specific information (see,
for example, California Civil Code §§1368, et seq.), and, should any of the actions required, the
documents described and/or the costs and/or fees mentioned in governing laws, ordinances and/or
regulations not be taken, provided or paid prior to close of Escrow, Buyer waives all right to
demand such of Seller and/or Escrow Agent, and further agrees to reimburse, indemnify and hold
harmless Seller and Escrow Agent for any cost, fee, penalty, payment, interest or charge which
may result as a consequence.
15
(9) SQUARE FOOTAGE. Buyer acknowledges that neither the square footage of the Property,
nor the square footage of any improvement, has been measured by Seller, Seller’s Broker, or
Auctioneer, and the square footage which may have been set forth on the Auctioneer website or
any marketing materials made available to or viewed by Buyer is deemed approximate and not
guaranteed. Buyer further acknowledges Buyer did not and has not relied upon any such
information or materials in making its decision to bid on or purchase the Property. Buyer is
buying the Property AS IS, WHERE IS, AS AVAILABLE, WITH ALL FAULTS AND
LIMITATIONS, and acknowledges Buyer’s responsibility to perform all due diligence and
investigation relating to, and Buyer’s decision to bid on and purchase the Property, including
calculation or, through means satisfactory to Buyer, the confirmation of the square footage of the
Property and all improvements thereon.
(c) RECEIPT OF DISCLOSURES. Buyer acknowledges and agrees Buyer has received and had
sufficient opportunity to read and understand all disclosures and document regarding the Property
made available by Seller, Seller’s Broker, or Auctioneer, in print or electronic form (the
“Disclosures”) prior to entering into this Agreement including without limitation:
(1) The pamphlet “Homeowners Guide to Earthquake Safety”, and the pamphlet “Environmental
Hazards: A Guide for Homeowners, Buyers, Landlords and Tenants”;
(2) The documents and
www.genesisacquisitions.com;
information
made
available
on
the
internet
at
(3) Any real estate brokerage relationship disclosures, (such disclosures made available and
provided to Buyer during the auction registration process and prior to bidding on the Property,
and prior to entering into this Agreement); and
(4) The disclosures listed or referenced in this Agreement and on Exhibits attached to this
Agreement, which Exhibits are by this reference incorporated herein.
Buyer understands and acknowledges that any information provided by or in behalf of Seller with
respect to the Property, including without limitation, all information in the Disclosures and at
www.genesisacquistions.com were obtained from a variety of sources and that Seller, Seller’s
Broker, and Auctioneer, have not made any independent investigation or verification of such
information and make no representations as to the accuracy or completeness of such information.
BUYER SHALL NOT HAVE THE RIGHT TO CANCEL THIS AGREEMENT BY REASON
OF ANY INFORMATION, FACTS, CONDITION OR OTHER ASPECT OF THE PROPERTY,
OR ANY OF THEM, DISCLOSED TO OR DISCOVERED BY BUYER SUBSEQUENT TO
BUYER’S EXECUTION OF THIS AGREEMENT.
(d) AUCTION TERMS AND CONDITIONS. Buyer represents and warrants that Buyer has
received, read, and accepts the terms and conditions, including without limitation any
supplemental terms and conditions, (collectively “Terms and Conditions”) relating to auction
bidding on, and the purchase and sale of the Property initiated through the auction website at
www.genesisacquisitions.com, and further stipulates and agrees such Terms and Conditions are
by this reference incorporated herein. In the event of conflict between the provisions of this
Agreement and the Terms and Conditions, the provisions of this Agreement shall control and
prevail. Buyer acknowledges that neither Seller, Seller’s Broker, nor Auctioneer, has made any
16
representation or warranty whatsoever in connection with the Property, in any medium
whatsoever.
(e) NO REPAIRS. Buyer acknowledges and agrees Seller is selling the Property AS IS, WHERE IS,
AS AVAILABLE, WITH ALL FAULTS AND LIMITATIONS, and Seller shall have no liability
for or any obligation to make any repairs or improvements of any kind to the Property, including,
but not limited to repairs or improvements associated with the inability of Buyer to obtain a
certificate of occupancy, certificate of use, municipal code compliance certificate, or other
certificate as may be required by governing law, for the Property. Any and all additional smoke
detectors, carbon monoxide detectors and/or fire extinguishers as may be required by local
ordinance shall be installed by Buyer at Buyer’s cost and expense in a timely fashion so as to
satisfy governing law.
The Property may be situated in a municipality that requires a certificate of occupancy, certificate
of use or municipal code compliance certificate in order to transfer and/or occupy the Property. If
a certificate of occupancy, certificate of use, municipal code compliance certificate, or other
similar certificate is required in order for the Property to be transferred to or occupied by Buyer,
Buyer shall obtain such certificate of occupancy, certificate of use or municipal code compliance
certificate at Buyer’s sole cost and expense. If any violations at the Property shall be required to
be corrected by the municipality of other work performed at the Property to obtain a certificate of
occupancy, certificate of use or municipal code compliance certificate, Buyer shall correct and/or
perform same at Buyer’s sole cost and expense. If any such document or entitlement or work is
required in order for Escrow to close and title to be transferred, Seller shall cooperate with Buyer
in giving consent thereto, and any reasonable delay in closing Escrow due to the time required for
resolution of such issue shall not be a cause for declaring Buyer in default under this Agreement.
Seller makes no representation as to whether a certificate of occupancy, certificate of use or
municipal code compliance certificate is required or whether the Property may be occupied by
Buyer or a third-party.
Buyer shall indemnify, defend and hold Seller harmless from and against all fines, penalties,
costs, expenses, claims, and liability arising out of or related to Buyer’s obtaining or its failure to
obtain a certificate of occupancy, certificate of use or municipal code compliance certificate if
one is required. This indemnification shall survive the close of Escrow and shall not be deemed
to have merged into any of the document executed or delivered at close of Escrow.
(f) PRELIMINARY TITLE REPORT and CC&Rs. Buyer represents and warrants that Buyer has
received, read, and approves copies of: (i) a preliminary title report or commitment for the
Property, and (ii) any and all documents referencing matters disclosed in the preliminary title
report.
(g) EXECUTION OF DISCLOSURES BY BUYER. Buyer shall execute, deliver and deposit
with the Escrow Agent, at or prior to the Closing Date, all federal, state and local disclosures
and acknowledgements concerning the Property that Buyer is required to execute under
applicable laws and regulations or required by the Escrow Agent.
(h) OCCUPIED PROPERTY. Seller makes no representations or warranties as to whether the
Property is occupied or in the possession of a third-party or subject to any claims therefor, as
of the date of execution of this Agreement or at the close of Escrow. Further:
17
(1) If the Property is occupied, Seller will not endeavor to evict or remove the occupants prior
to the close of Escrow. Buyer expressly waives any right to cancel this Agreement based on
the status of occupancy or immediate right to possess the Property.
(2)
Buyer acknowledges Buyer may be subject to the Protecting Tenant's at Foreclosure
Act of 2009 set forth as Division A, Title VII of the Helping Families Save Their Homes Act
of 2009 [Pub.L.111-22. 123 Stat 1632, S. 896. enacted May 20. 2009] (the "Act") or similar
state law providing tenant protection.
(3)
The Property may be subject to leasehold interests of various tenants. Seller has
posted or made available copies of all leases and amendments, if any, in Seller's possession.
Seller makes no warranties or representations as to whether or not: (I) other leases of the
Property are or will be in force at the close of Escrow, (II) any other person has a right to
possess the Property, (III) any rent concessions were given to any tenant, (IV) any other
agreements were made with the tenants, (V) any rent charged violates any applicable rent
control ordinance, statute, or law, (VI) any other violations of any applicable ordinance, statute
or law exist in connection with the tenancy, occupancy, or possession of the Property, and
(VII) Seller or any tenant is in default under any lease.
(4) Because the Property was acquired by Seller through foreclosure, trustee's sale pursuant to
a power of sale under a deed of trust, power of sale under a mortgage, sheriff’s sale, deed in
lieu of foreclosure, judicial foreclosure process, or other similar statutory, contractual or
judicial process, Seller has no security deposits or last month's rent to surrender to Buyer.
(5) Buyer shall be solely responsible for notifying tenants of the transfer of ownership of the
Property, and shall be liable to any and all tenants for repayment of any outstanding security
deposit, less lawful deductions pursuant to applicable law.
(6) This provision shall survive the close of Escrow and shall not be deemed to have merged
into any of the documents executed or delivered at close of Escrow.
(7) Buyer shall defend, indemnify and hold harmless Seller, its affiliates, parent companies,
officers, directors, shareholders, auctioneer, broker, agents, attorneys and representatives from
and against any claims, demands, actions or expenses, including reasonable attorney's fees,
arising out of any and all actions concerning security deposits, and for any eviction or
unlawful detainer or other litigation arising out of the tenancy, occupancy or lease of the
Property after the close of Escrow, including but not limited to, any violation of any state or
federal law, rule or regulation regarding tenant’s occupancy of the Property.
(8) Buyer shall be responsible for installing new locks on the Property immediately after the
close of Escrow, and Buyer shall indemnify and hold Seller, Seller’s Broker, and Auctioneer,
harmless from and against any and all damages, claims, liens, liabilities, costs, injuries,
attorney's fees and costs that may be made against Seller as a result of Buyer's installation of
or failure to install new locks on the Property.
(i) POSSESSION. The right to possess the Property consistent with title delivered to Buyer shall,
subject to restrictions of law or contract and/or any third-party’s actual or claimed right to
occupy the Property, be delivered to Buyer at close of Escrow. If the Buyer alters the Property
or causes the Property to be altered in any way and/or occupies the Property or allows any
other person to occupy the Property prior to close of Escrow without the prior written consent
18
of the Seller, then: (i) such event shall constitute a material breach by the Buyer under this
Agreement, (ii) the Seller may at its unfettered preference terminate the Agreement, (iii) the
Buyer shall be liable to the Seller for all damages to the Property caused by any such alteration
or occupation of the Property, (iv) Buyer shall indemnify and hold Seller harmless against any
claims, demands, actions or expenses, including reasonable attorney's fees, arising out of any
and all actions arising out of such alteration or occupation of the Property prior to close of
Escrow, and (v) Buyer waives all claim for right to be reimbursed or paid for improvements
made by the Buyer to the Property including, but not limited to, any Claims for unjust
enrichment.
(j) KEYS AND REMOTES. At close of Escrow, if there is a lockbox on the Property, Seller shall
provide Buyer with a code to the lockbox (if known to Seller), but will not otherwise
accommodate Buyer’s access to the Property . Any and all keys, including door keys, garage
door keys, pool keys, security keys, and mail box keys, may not be provided by Seller and, if
not provided, Buyer must obtain same at Buyer's own expense. All remote control devices
must also be obtained or replaced by Buyer at Buyer's own expense.
13.
“AS IS, WHERE IS, AS AVAILABLE, WITH ALL FAULTS AND LIMITATIONS”
SALE.
BUYER AGREES BUYER IS ACQUIRING THE PROPERTY AS IS, WHERE IS, AS AVAILABLE,
WITH ALL FAULTS AND LIMITATIONS, IN ITS PRESENT STATE AND CONDITION, WITH
ALL DEFECTS, BOTH PATENT AND LATENT, AND WITH ALL FAULTS OF THE PROPERTY,
KNOWN OR UNKNOWN, PRESENTLY EXISTING OR SUCH AS MAY HEREAFTER ARISE,
INCLUDING, WITHOUT LIMITATION, ALL EXISTING CONDITIONS, IF ANY, OF LEAD
PAINT, MOLD OR OTHER ENVIRONMENTAL OR HEALTH HAZARDS (“ENVIRONMENTAL
MATTERS").
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PROPERTY
SOLD PURSUANT TO THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION AS TO: (A) ACTUAL VALUE, APPRAISED VALUE, NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, CONDITIONS
RELATED TO THE WATER, SOIL, TOPOGRAPHY AND GEOLOGY; (B) THE INCOME OR
PROFIT TO BE DERIVED FROM LEASE, RENTAL OR SALE OF THE PROPERTY; (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL PURPOSES, ACTIVITIES AND USES
WHICH BUYER MAY CONDUCT THEREON; (D) THE PROPERTY OR PROPERTY
OPERATION BEING COMPLIANT WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE
HABITABILITY,
MERCHANTABILITY,
MARKETABILITY,
PROFITABILITY,
TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OF WORKS OF IMPROVEMENT OR
MATERIALS, IF ANY, BUILT UPON OR INCORPORATED INTO THE PROPERTY; (G) THE
CONDITION, MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY OR ANY BUILDING OR WORK OF IMPROVEMENT ON OR AT THE PROPERTY;
(H) THE EXISTENCE OF ANY VIEW FROM THE PROPERTY OR THAT ANY EXISTING VIEW
WILL NOT BE OBSTRUCTED IN THE FUTURE; (I) THE STRUCTURAL INTEGRITY OF ANY
CONSTRUCTION OR IMPROVEMENTS ON THE PROPERTY; (J) THE CONFORMITY OF ANY
IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY THAT MAY
HAVE BEEN PROVIDED TO BUYER, WHETHER BY SELLER OR OTHERWISE; (K) THE
19
CONFORMITY OF THE PROPERTY TO APPLICABLE PERMITS, OR ZONING OR BUILDING
CODE REQUIREMENTS; (L) THE EXISTENCE OF SOIL STABILITY/ INSTABILITY, PAST
SOIL REPAIRS, SUSCEPTIBILITY TO LANDSLIDES, SUSCEPTIBILITY TO SINKHOLES,
SUFFICIENCY OF UNDER-SHORING, SUFFICIENCY OF DRAINAGE, OR ANY OTHER
MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE PROPERTY OR ANY
BUILDINGS OR IMPROVEMENTS SITUATED THEREON, (M) WHETHER THE PROPERTY IS
LOCATED IN A HISTORIC PRESERVATION DISTRICT OR SUBJECT TO SPECIAL
REGULATIONS RELATED TO HISTORIC PRESERVATION, (N) WHETHER THE PROPERTY IS
LOCATED IN A SPECIAL STUDIES ZONE UNDER THE PUBLIC RESOURCES CODE OR A
SEISMIC HAZARDS ZONE OR A STATE FIRE RESPONSIBILITY AREA, OR A SPECIAL
FLOOD HAZARD ZONE OR FLOOD PLAIN, OR HURRICANE OR STORM SURGE ZONE, OR
IN THE PRESENCE OF WETLANDS OR SHORELAND OR IN PROXIMITY TO ANY
PROTECTED SPECIES; OR (O) ANY OTHER MATTER WITH RESPECT TO THE QUALITY,
CONDITION, TAX, OR TITLE OF OR TO THE PROPERTY.
BUYER ACKNOWLEDGES THE PROPERTY MAY NOT BE IN COMPLIANCE WITH
APPLICABLE ZONING, BUILDING, HEALTH OR OTHER LAW OR CODES, AND NEITHER
SELLER NOR ANY PERSON ACTING AS SELLER'S REPRESENTATIVE OR AGENT HAS
OCCUPIED THE PROPERTY AND THAT THE PROPERTY MAY NOT BE IN HABITABLE
CONDITION.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, WITHOUT LIMITATION,
SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING THE VALUE OF THE PROPERTY, COMPLIANCE WITH
THE AMERICANS WITH DISABILITIES ACT OR WITH ANY ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS (AS DEFINED BY U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AND ANY OTHER STATE, FEDERAL OR LOCAL ENVIRONMENTAL LAWS
AND REGULATIONS APPLICABLE TO THE PROPERTY), OR THE DISPOSAL OR
EXISTENCE IN OR ON THE PROPERTY (OR ANY ADJACENT OR NEARBY PROPERTY) OF
ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER AND ANY OTHER
STATE, FEDERAL OR LOCAL ENVIRONMENTAL LAWS AND REGULATIONS APPLICABLE
TO THE PROPERTY.
BUYER ACKNOWLEDGES AND AGREES THAT, UPON CLOSE OF ESCROW, SELLER,
SELLER’S BROKER AND AUCTIONEER, HAVE NO FURTHER RESPONSIBILITY,
OBLIGATION OR LIABILITY WHATSOEVER TO BUYER. BUYER AGREES THAT SELLER,
SELLER’S BROKER AND AUCTIONEER, SHALL HAVE NO LIABILITY FOR ANY CLAIM OR
LOSSES BUYER OR BUYER'S HEIRS, SUCCESSORS AND/OR ASSIGNS MAY INCUR AS A
RESULT OF DEFECTS THAT MAY NOW EXIST OR MAY HEREAFTER PRESENT WITH
RESPECT TO THE PROPERTY; BUYER AGREES BUYER SHALL INDEMNIFY, DEFEND AND
HOLD SELLER, SELLER’S BROKER AND AUCTIONEER, AND EMPLOYEES, OFFICERS,
DIRECTORS, REPRESENTATIVES, ATTORNEYS, OF ANY AND EACH OF THEM,
HARMLESS AGAINST ANY SUCH CLAIMS. THE OBLIGATIONS AND AGREEMENTS OF
BUYER UNDER THIS SECTION SHALL SURVIVE THE CLOSE OF ESCROW OR THE
EARLIER TERMINATION OF THIS AGREEMENT.
20
BUYER, AND ANYONE CLAIMING BY OR THROUGH BUYER, HEREBY FULLY AND
IRREVOCABLY RELEASE SELLER, SELLER’S BROKER AND AUCTIONEER, AND THE
EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, AND AGENTS OF
ANY AND EACH OF THEM FROM ANY AND ALL CLAIMS THAT HE/SHE/IT OR THEY MAY
NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER, SELLER’S BROKER AND
AUCTIONEER, AND THE EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES,
ATTORNEYS, AND AGENTS OF ANY AND EACH OF THEM FROM ANY AND ALL CLAIMS,
CAUSES, WHETHER ADMINISTRATIVE OR JUDICIAL, LOSSES, COSTS (INCLUDING ANY
AND ALL REASONABLE ATTORNEY’S FEES, COURT COSTS, AND REASONABLE COSTS OF
INVESTIGATION, LITIGATION, AND SETTLEMENT), EXPENSES, SANCTIONS, INTEREST,
LIABILITIES, PENALTIES, FINES, DEMANDS, EXPENSES, LIENS, JUDGMENTS,
COMPENSATION, FEES, LOSS OF PROFITS, INJURIES, DEATH, AND/OR DAMAGES, OF ANY
KIND WHATSOEVER, WHETHER KNOWN OR UNKNOWN, FIXED OR CONTINGENT, JOINT
OR SEVERAL, CRIMINAL OR CIVIL, OR IN LAW OR IN EQUITY ("CLAIMS") ARISING FROM
OR RELATING TO THE PROPERTY, THE BUYER'S BREACH OF OR FAILURE TO COMPLY
FULLY WITH ANY PROVISION IN THIS AGREEMENT, INSPECTIONS OR REPAIRS MADE BY
THE BUYER OR HIS/HER/ITS AGENTS, REPRESENTATIVES, BROKERS, EMPLOYEES,
CONTRACTORS, SUCCESSORS OR ASSIGNS, THE IMPOSITION OF ANY FINE OR PENALTY
IMPOSED BY ANY GOVERNMENTAL ENTITY RESULTING FROM THE BUYER'S FAILURE TO
TIMELY OBTAIN ANY CERTIFICATE OF OCCUPANCY OR TO COMPLY WITH EQUIVALENT
LAWS AND REGULATIONS, ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS OR
OTHER CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE VALUE OF THE PROPERTY,
ENVIRONMENTAL MATTERS AFFECTING THE PROPERTY, OR ANY PORTION THEREOF, OR
THE USE, RELEASE OR DISPOSAL ON, IN OR UNDER THE PROPERTY OF ANY HAZARDOUS
SUBSTANCE AND THE ENVIRONMENTAL CONDITION OF THE PROPERTY.
THIS
PROVISION SHALL SURVIVE THE CLOSE OF ESCROW. THIS RELEASE INCLUDES CLAIMS
OF WHICH BUYER IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO
EXIST IN ITS FAVOR WHICH. IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT
BUYER'S RELEASE OF SELLER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE
PARTIES THAT THIS AGREEMENT IS MADE IN FULL ACCORD, SATISFACTION, AND
DISCHARGE OF ANY SUCH CLAIMS AND THAT THIS AGREEMENT HAS BEEN EXECUTED
INTENDING THAT SUCH RELEASE SHALL BE FULLY EFFECTIVE TO FULLEST EXTENT
PERMISSIBLE BY GOVERNING LAW. FURTHER, BUYER SPECIFICALLY WAIVES THE
PROTECTIONS AS MAY BE DESCRIBED IN STATUTES OR REGULATIONS LIMITING IN
CERTAIN CIRCUMSTANCES THE EFFECT OF GENERAL RELEASES, WHETHER IN
CONNECTION WITH THE PURCHASE AND SALE OF REAL PROPERTY, OR OTHERWISE
(SEE, FOR EXAMPLE, CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES AS FOLLOWS: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR").
Buyer’s Initials:
14.
CONVEYANCE OF TITLE.
Title shall be delivered to Buyer by Deed pursuant to the terms of this Agreement. Seller shall be
under no obligation to: (a) remove any title exception; (b) bring any action or proceeding or bear any
expense in order to enable Seller to convey title to the Property in accordance with this Agreement; or
(c) otherwise make the title to the Property insurable. Any request by Buyer and/or any attempt by the
21
Seller to remove such title exceptions shall not impose an obligation upon the Seller to remove such
exceptions.
IF, FOR ANY REASON, SELLER DETERMINES IN ITS SOLE AND ABSOLUTE DISCRETION
THAT IT IS UNABLE OR IT IS ECONOMICALLY NOT FEASIBLE TO CONVEY TITLE TO
THE PROPERTY AT THE CLOSE OF ESCROW AND THE CLOSING DATE IS NOT
EXTENDED OR OTHERWISE AMENDED IN THE SOLE AND ABSOLUTE DISCRETION OF
SELLER, OR SELLER DETERMINES, IN ITS SOLE AND ABSOLUTE DISCRETION TO DEEM
THE AGREEMENT NULL AND VOID IF REQUIRED BY APPLICABLE LAW, AND/OR
REQUIRED BY ANY EXISTING CONTRACT OR AGREEMENT BINDING UPON SELLER
AND/OR THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY AGREEMENTS WITH
THE PRIOR OWNER OF THE PROPERTY, ANY MORTGAGE INSURER OR ANY MORTGAGE
BROKER, OR ANY CLAIMED DEFECT IN SELLER’S TITLE, THEN SELLER MAY CANCEL
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT BY WRITTEN NOTICE TO
THE BUYER AND THE ESCROW AGENT. SUCH RIGHT TO CANCEL SHALL BE AN
UNLIMITED RIGHT TO CANCEL. IN SUCH EVENT, ESCROW AGENT SHALL RETURN TO
BUYER (AS BUYER'S SOLE AND EXCLUSIVE REMEDY) THE AMOUNT OF THE EARNEST
MONEY DEPOSIT ACTUALLY DEPOSITED BY BUYER WITH ESCROW AGENT. UPON
RETURN OF THE EARNEST MONEY DEPOSIT, IF ANY, AS PROVIDED IN THIS SECTION,
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL BE TERMINATED,
AND BUYER AND SELLER SHALL BE RELEASED FROM ANY FURTHER OBLIGATION,
EACH TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN.
BUYER GRANTS SELLER THE
UNILATERAL RIGHT TO EXECUTE CANCELLATION INSTRUCTIONS IN THE EVENT
THAT SELLER ELECTS TO CANCEL THE CLOSING AND THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT.
BUYER'S INITIALS
15.
COSTS AND PRORATIONS.
(a) PRORATIONS.
NO PRORATIONS ARE CONTEMPLATED UNDER THIS
AGREEMENT, AND BUYER SHALL BE SOLELY RESPONSIBLE FOR ALL BUYER’S
EXPENSES SET FORTH IN (C) BELOW. ANY SUCH AMOUNTS WHICH BY LAW
ARE TO BE PAID BY SELLER SHALL BE REIMBURSED TO SELLER BY BUYER
PRIOR TO CLOSE OF ESCROW. If the regular common interest community, unit owner’s
homeowner’s or condominium association dues, fees or assessments were paid prior to the
Closing Date for a period of time subsequent to such date, then Buyer shall pay to Seller that
portion of the dues, fees, and/or assessment attributable to the period of time after Closing
Date. Insurance premiums will not be prorated. Seller cannot endorse or assign existing
insurance policies (if any) to Buyer, and Seller may cancel any existing insurance on the
Property as of Closing Date.
(b) SELLER'S EXPENSES. Seller shall not be responsible for any amounts due, paid, or to be
paid after the close of Escrow. In the event Seller has paid any taxes, special assessments or
other fees at or prior to close of Escrow and there is a refund of any such taxes, assessments or
fees after the close of Escrow, and Buyer as current owner of the Property receives the
payment, Buyer will immediately submit the refund to Seller.
22
(c) BUYER'S EXPENSES.
Notwithstanding state or local custom, ALL COSTS,
TRANSACTION MANAGEMENT, TRANSFER, DOCUMENTATION AND OTHER
FEES, EXPENSES, TAXES, CHARGES, ASSESSMENTS, DUES, AND ALL OTHER
FINANCIAL PAYMENT TO BE MADE IN CONNECTION WITH THE PURCHASE AND
SALE OF THE PROPERTY AS CONTEMPLATED BY THIS AGREEMENT, WHETHER
PAST DUE, CURRENTLY DUE OR DELINQUENT, INCLUDING ANY INTEREST OR
PENALTIES THAT MAY ACCRUE WITH RESPECT TO THE FOREGOING, SHALL, IN
ADDITION TO THE TOTAL PURCHASE PRICE BE BORNE AND PAID BY THE
BUYER, AND BUYER AGREES TO DEPOSIT ALL SUCH AMOUNTS WITH ESCROW
AGENT SUFFICIENTLY IN ADVANCE OF THE CLOSE OF ESCROW TO ALLOW
ESCROW AGENT TO MAKE SUCH PAYMENTS ON BUYER’S BEHALF FROM
FUNDS DEPOSITED BY BUYER; these items shall include, but are not limited to,
transaction management fees, all current, past due and delinquent property taxes, costs of
credit reports, appraisals, loan fees, loan points, other leverage costs, title insurance premiums,
title insurance charges, cost of Posted Report (as applicable) escrow fees, tax service fees,
recordation fees for the deed, and any mortgage or deed of trust, any documentary transfer tax,
real property transfer taxes or deed tax that may be imposed by the State, County and/or City
in which the Property is located, common interest community/unit owner’s/condominium/
homeowner's association maintenance or membership fees and/or assessments, if any, Escrow
closing costs, a document administration fee of $250 to Top Consulting, 5900 Canoga
Avenue, 4th Floor, Woodland Hills, California 91367 (as applicable), and all other costs and
expenses, including any cost, expense or tax imposed by any state or local entity not otherwise
addressed herein. Further, if desired by Buyer or required by Buyer’s lender, the cost of any
and all termite clearances and reports and any inspections required by any lender, and/or
repairs recommended or required by any termite and/or property inspection report including,
but not limited to, any roof certifications shall all be at the sole cost and expense of Buyer.
Buyer authorizes Escrow Agent to debit the Buyer's account in the amount of Twenty Dollar
($20.00) fee at the close of Escrow in the event Buyer fails to deposit with Escrow Agent a
change of ownership statement, if required.
(d) PRE-CLOSING EXPENSES. Buyer and Seller are aware that the Escrow Agent may incur
certain expenses during the course of processing this transaction which must be paid prior to
the close of Escrow. Such costs may include, but are not limited to, demand request fees,
common interest community, unit owner’s, condominium or homeowner association document
fees, courier fees, overnight mail service and City building and/or inspection reports, if
applicable; it is understood and agreed BUYER SHALL DEPOSIT WITH ESCROW THE
AMOUNT OF ANY AND ALL SUCH CLOSING COSTS UPON REQUEST BY ESCROW
AGENT. Escrow Agent is authorized and instructed to release funds for payment of such
costs prior to the Closing Date from funds deposited into Escrow by Buyer. Buyer and Seller
acknowledge these funds are not refundable and Escrow Agent is specifically released from all
responsibility and/or liability for payment of any funds pre-released through the Escrow.
(e) POST-CLOSING AND SUBSEQUENT NOTICE OF COSTS, LIENS, OR ASSESSMENTS.
The acceptance of the Deed by Buyer will be deemed to constitute full compliance by Seller
with all of the terms and conditions of this Agreement. Seller shall NOT be responsible for
any unpaid real estate taxes and/or assessments, levies, fees, fines, penalties, homeowner
association fees, dues and charges, utility charges or any other charges. IF AT ANY TIME
AFTER CLOSE OF ESCROW, BUYER OR ITS ASSIGNS OBTAINS ACTUAL OR
CONSTRUCTIVE NOTICE OF ANY COSTS, LIENS, ASSESSMENTS, FEES OR
JUDGMENTS ASSOCIATED WITH THE PROPERTY THAT WERE NOT OF RECORD
23
AT THE TIME OF THE CLOSING INCLUDING, WITHOUT LIMITATION, CODE
VIOLATIONS, TAXES, FEES, CHARGES, MECHANIC’S OR UTILITY LIENS, OR
COMMON INTEREST COMMUNITY, UNIT OWNER’S, HOMEOWNER’S OR
CONDOMINIUM ASSOCIATION DUES, FEES OR ASSESSMENTS, BUYER SHALL BE
SOLELY RESPONSIBLE FOR PAYMENT AND SATISFACTION OF SAME, AND
BUYER HEREBY RELEASES SELLER, SELLER’S BROKER, AUCTIONEER, AND THE
EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS AND AGENTS OF ALL AND
EACH OF THEM OF AND FROM ANY AND ALL LIABILITY IN CONNECTION
THEREWITH. THIS PROVISION SHALL APPLY IRRESPECTIVE OF WHETHER
SELLER OWNED THE PROPERTY AT THE TIME SUCH COSTS WERE ASSESSED OR
INCURRED, OR SELLER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE
EXISTENCE OF SUCH COSTS, LIENS, DUES, FEES, ASSESSMENTS, OR
JUDGMENTS. Buyer is responsible for verifying any possible taxes, liens, judgments, fees or
assessments that may not be of record and hereby releases Seller from any and all liability
related to any such liens, judgments, dues, fees or assessments. Provisions of the paragraphs
under this Section shall survive the close of Escrow, funding and the delivery of the Deed and
continue in full force and effect.
16.
DEFAULT AND REMEDIES.
By initialing below, Buyer and Seller elect for this entire Section to apply:
a. BUYER DEFAULT. BUYER AND SELLER AGREE THAT IF BUYER FAILS TO
COMPLETE THIS PURCHASE BY REASON OF ANY DEFAULT OF BUYER, AS
DETERMINED BY SELLER IN ITS SOLE DISCRETION: (i) SELLER SHALL BE
RELEASED FROM ANY OBLIGATION TO SELL THE PROPERTY TO THE BUYER;
AND (ii) AS BUYER AND SELLER EXPRESSLY AGREE IT WOULD BE EXTREMELY
DIFFICULT TO DETERMINE SELLER'S ACTUAL DAMAGES AS A RESULT OF SUCH
A DEFAULT BY BUYER, IT IS AGREED SELLER SHALL, (A) IF BUYER HAS
DEPOSITED WITH ESCROW AGENT THE AMOUNT OF THE EARNEST MONEY
DEPOSIT, HAVE THE RIGHT TO RETAIN SUCH EARNEST MONEY DEPOSIT AS
LIQUIDATED DAMAGES, OR (B) IF BUYER HAS NOT DEPOSITED WITH ESCROW
AGENT THE EARNEST MONEY DEPOSIT, BE ENTITLED TO RECOVER THE
AMOUNT OF THE EARNEST MONEY DEPOSIT AS LIQUIDATED DAMAGES. SUCH
LIQUIDATED DAMAGES ARE STIPULATED NOT AS A PENALTY, BUT AS A
REASONABLE PRE-ESTIMATE OF SELLER'S ACTUAL DAMAGES FOR BREACH OF
THIS AGREEMENT (PROVIDED, HOWEVER, THE AMOUNT SO RETAINED OR
RECOVERED AS LIQUIDATED DAMAGES SHALL BE NO MORE THAN FIVE
PERCENT (5%) OF THE TOTAL PURCHASE PRICE). IN ADDITION, BUYER SHALL
BE LIABLE TO ESCROW FOR ANY ESCROW CANCELLATION FEES, AND FEES
AND COSTS PAYABLE FOR SERVICES AND PRODUCTS PROVIDED OR
CONTRACTED FOR DURING ESCROW PURSUANT TO THIS AGREEMENT AND/OR
AT THE REQUEST OF BUYER. NOTWITHSTANDING THE FOREGOING, SELLER
RETAINS THE RIGHT TO PROCEED AGAINST BUYER FOR ENFORCEMENT OF
BUYER'S INDEMNIFICATION/DEFENSE/HOLD HARMLESS OBLIGATIONS UNDER
THIS AGREEMENT.
Buyer’s Initials:
24
b. SELLER DEFAULT. BUYER AND SELLER AGREE THAT IF SELLER IS UNABLE TO
PERFORM AS REQUIRED BY THIS AGREEMENT, THEN THIS AGREEMENT MAY
BE CANCELLED UPON SELLER'S WRITTEN NOTICE TO BUYER. IN SUCH EVENT,
BUYER'S EARNEST MONEY DEPOSIT SHALL BE RETURNED TO BUYER, LESS
ANY ESCROW CANCELLATION FEES (ALL OF WHICH SHALL BE BORNE BY THE
BUYER) AND LESS FEES AND COSTS PAYABLE FOR SERVICES AND PRODUCTS
PROVIDED DURING ESCROW PURSUANT TO THIS AGREEMENT AND/OR AT THE
BUYER’S REQUEST; SUCH RETURN OF BUYER'S EARNEST MONEY DEPOSIT
SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY IN SUCH EVENT. TO THE
FULLEST EXTENT PERMITTED BY LAW THE BUYER WAIVES ANY CLAIMS THAT
THE PROPERTY IS UNIQUE AND BUYER ACKNOWLEDGES A RETURN OF ITS
EARNEST MONEY DEPOSIT (LESS FEES AND COSTS AS HEREIN DESCRIBED)
WILL ADEQUATELY AND FAIRLY COMPENSATE BUYER FOR ALL CLAIMS IN
CONNECTION WITH THIS AGREEMENT OR IN ANY WAY ASSOCIATED WITH THE
PROPERTY. IN NO EVENT SHALL BUYER HAVE THE RIGHT TO SEEK OR OBTAIN
SPECIFIC ENFORCEMENT OF THIS AGREEMENT.
c. WAIVER OF SPECIFIC PERFORMANCE REMEDY. AS A MATERIAL PART OF THE
CONSIDERATION TO BE PAID OR RECEIVED BY SELLER AND BUYER UNDER
THIS AGREEMENT, BUYER WAIVES ALL RIGHTS TO FILE AND MAINTAIN AN
ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE AND TO RECORD A LIS
PENDENS OR NOTICE OF PENDENCY OF ACTION AS AGAINST THE PROPERTY IF
A DISPUTE ARISES CONCERNING THIS AGREEMENT. BUYER AGREES THAT
THE PROPERTY TO BE PURCHASED UNDER THE TERMS OF THIS AGREEMENT IS
NOT UNIQUE AND THAT IN THE EVENT OF SELLER'S CANCELLATION, DEFAULT
OR MATERIAL BREACH OF THE AGREEMENT, BUYER CAN BE ADEQUATELY
AND FAIRLY COMPENSATED SOLELY BY RECEIVING A RETURN OF BUYER'S
EARNEST MONEY DEPOSIT. UPON RETURN OF BUYER'S EARNEST MONEY
DEPOSIT, THE AGREEMENT SHALL BE TERMINATED, AND BUYER AND SELLER
HEREBY IRREVOCABLY INSTRUCT ESCROW AGENT TO RETURN ALL FUNDS
AND DOCUMENTS TO THE PARTY THAT DEPOSITED THEM WITHOUT FURTHER
DIRECTION.
D. BUYER ACKNOWLEDGES, AGREES AND CONFIRMS TO THE ESCROW AGENT,
SELLER SHALL HAVE THE RIGHT TO RETAIN OR SEEK THE RELEASE OF THE
EARNEST MONEY DEPOSIT UNDER THIS SECTION II.16, OR CANCEL THE
TRANSACTION WITHOUT ANY FURTHER ACTION, CONSENT OR DOCUMENT
FROM BUYER.
Buyer’s Initials:
17.
DISPUTE RESOLUTION.
BUYER AND SELLER AGREE THAT ANY DISPUTE OR CLAIM IN LAW OR EQUITY
BETWEEN THEM ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT
OR THE PURCHASE AND SALE OF THE PROPERTY WHICH IS A SUBJECT OF THIS
AGREEMENT SHALL FIRST BE THE SUBJECT OF A NON-BINDING MEDIATION WITH A
RETIRED CALIFORNIA SUPERIOR COURT JUDGE (OR OTHER FULL TIME NEUTRAL
ACCEPTABLE TO THE PARTIES) HELD WITHIN NINETY (90) DAYS OF WHEN THE
DISPUTE ARISES, AND, UPON FAILURE OF SUCH MEDIATION TO FULLY RESOLVE THE
25
DISPUTE OR CLAIM, SHALL BE DECIDED BY NEUTRAL BINDING ARBITRATION
CONSISTENT WITH THE PROCEDURES SET FORTH IN SCHEDULE I ATTACHED HERETO.
THE PROCEDURES SET FORTH IN SCHEDULE I ATTACHED HERETO SHALL GOVERN
UNLESS THE PARTIES OTHERWISE AGREE IN WRITING.
BY INITIALING IN THE SPACE BELOW, BUYER AND SELLER ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION
PROVISION DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY
RIGHTS EACH MIGHT POSSES TO HAVE THE DISPUTE PROSECUTED THROUGH THE
COURTS AND ANY RIGHT TO BENCH OR JURY TRIAL. BY INITIALING IN THE SPACE
BELOW, BUYER AND SELLER ARE GIVING UP THEIR RIGHTS TO ORDINARY
DISCOVERY AND APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO
ARBITRATE BY MOTION TO COMPEL ARBITRATION MADE TO THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES. BUYER'S
AND SELLER'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THIS AGREEMENT OR IN ANY WAY CONNECTED TO OR
UNDERLYING THE PURCHASE AND SALE OF THE PROPERTY OR THE UNDERLYING
AUCTION TO NEUTRAL BINDING ARBITRATION.
Seller’s Initials:
18.
Buyer’s Initials:_______________
RISK OF LOSS.
If any material portion of the Property is damaged or destroyed prior to the close of Escrow, as
determined by Seller in its sole discretion, Seller shall give Buyer written or email notice thereof.
Buyer shall have the option, exercisable within two (2) business days after receipt of such written
notice, to either (a) terminate this Agreement, or (b) consummate this Agreement in accordance with
its terms. In any event Seller shall not be deemed in default under this Agreement as a result of such
damage or destruction. Buyer shall be deemed to have waived its right to terminate this Agreement if
Buyer does not notify Seller in writing or via email of its election to terminate this Agreement within
two (2) business days after receipt of Seller's written notice of material damage. Notwithstanding the
foregoing, any termination notice given by Buyer under this Section shall be rendered ineffective if,
within three (3) business days after Seller's receipt of such written or email notice, Seller delivers to
Buyer Seller's written agreement to repair at its sole cost and expense all such damage. In such event
the date of close of Escrow shall be deemed automatically extended to the third (3rd) business day
following Seller's completion of such repair. Buyer shall not be entitled to any insurance proceeds or
obtain any rights with respect to any claims Seller may have with regard to insurance maintained by
Seller with respect to the Property.
If Buyer discovers what Buyer believes is damage to or destruction of a Property occurring following
the execution of this Agreement, Buyer may, within one (1) business day of such discovery, notify
Seller of such discovery and provide Seller with a written description of the purported damage or
destruction. Once so notified, Seller shall within ten (10) business days make a determination that the
Property has or has not, in Seller’s sole discretion, been so materially damaged or destroyed. If Seller
determines the Property has been materially damaged or destroyed following the date of execution of
this Agreement, the procedures and calendar set forth above in this Sub-section II.18 shall be
controlling. If Seller, in its sole discretion, determines that no such material damage or destruction has
26
occurred following the execution of this Agreement then Seller, Seller’s Broker or Offering
Administrator shall so notify Buyer and the Respective Escrow Agent, and the purchase of the
Property as contemplated by this Agreement shall proceed, with Escrow to close within four (4)
business days of such notification.
19.
MISCELLANEOUS MATTERS.
(a) ASSIGNMENT OF BUYER'S INTEREST. Buyer may not assign or record its right, title or
interest in the transaction contemplated by this Agreement without the express prior written
consent of the Seller, which consent may be withheld in the sole and absolute discretion of
Seller.
(b) TITLES. HEADINGS. AND CAPTIONS. All titles, headings, and captions used in this
Agreement have been included for administrative convenience only and do not constitute
matters to be construed in interpreting this Agreement.
(c) OTHER AGREEMENTS. This Agreement, the Auction Terms and Conditions, and the
Confidentiality Agreement (if applicable) constitute the entire agreement between Buyer and
Seller concerning the subject matter hereof and there are no oral or other written agreements
between Buyer and Seller. All negotiations are merged into this Agreement. This Agreement
and the Confidentiality Agreement shall not be modified or amended except by an instrument
in writing signed by Buyer and Seller. No oral promises, representations (express or implied),
warranties or agreements made by the Seller, Seller’s Broker, or Auctioneer, shall be deemed
valid or binding upon the Seller unless expressly included in this Agreement.
(d) ATTORNEYS' FEES. In any action, proceeding or arbitration arising out of this Agreement,
each party shall bear its own attorney’s fees and costs..
(e) SEVERABILITY/INTERPRETATION. In the event that any portion of this Agreement shall
be determined to be invalid or unenforceable, the same shall, to that extent, be deemed
severable from this Agreement and the invalidity or unenforceability thereof shall not affect
the validity and enforceability of the remaining portion of this Agreement. The remainder of
this Agreement shall remain in full force and effect and shall be construed to fulfill the
intention of the parties hereto. Buyer and Seller acknowledge that each party has reviewed
this Agreement and has had adequate opportunity to consult legal counsel with respect thereto
and that the rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or any
amendments hereto.
(f) TIME IS OF THE ESSENCE. Time is of the essence in the performance of each and every
covenant of Buyer under this Agreement and the satisfaction of each and every condition
imposed upon Buyer under this Agreement.
(g) GOVERNING LAW AND VENUE. The interpretation of this Agreement, and the rights and
liabilities of the parties hereto, shall be governed by the laws of the State in which the Property
exists. Any mediation and/or arbitration proceeding held in connection with any legal
controversy arising under this Agreement shall be held in the County of Los Angeles, State of
California. Motion for entry of an arbitrator’s award as a judgment may, consistent with
governing law, be submitted to, and order thereon made by the appropriate trial court in the
county in which the Property exists. The parties further irrevocably consent to the service of
27
process in connection with any such controversy by the mailing by registered or certified mail,
postage prepaid, at the respective addresses set forth in, or designated pursuant to this
Agreement.
(h) COUNTERPARTS AND ELECTRONIC SIGNATURES. This Agreement may be executed
and delivered in any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same document.
Facsimile documents executed, scanned and transmitted electronically and electronic
signatures shall be deemed original signatures for purposes of this Agreement and all matters
related thereto, with such facsimile, scanned and electronic signatures having the same legal
effect as original signatures. Seller and Buyer agree this Agreement, any addendum thereto or
any other document necessary for the consummation of the purchase and sale transaction
contemplated by this Agreement may be accepted, executed or agreed to through the use of an
electronic signature in accordance with the Electronic Signatures in Global and National
Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the
Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document
accepted, executed or agreed to in conformity with such laws will be binding on both Seller
and Buyer the same as if it were physically executed and Buyer hereby consents to the use of
any third party electronic signature capture service providers as may be chosen by Seller,
Seller’s Broker, or Auctioneer
(i) FURTHER ASSURANCES. The parties hereto hereby agree to execute such other documents,
and to take such other actions as may reasonably be necessary, to further the purposes of this
Agreement.
(j) GENDER/NUMBER/REFERENCES TO SELLER. Whenever the context indicates that such
is the intent, words in the singular number shall include the plural and vice versa, and the
masculine shall include the feminine, and vice versa. Pronouns shall be deemed to refer to all
genders. All provisions herein for the benefit of Seller shall be deemed to be for the benefit of
Seller and all of Seller's agents and sub-agents (including without limitation, Seller's Broker
and Auctioneer) and each of their respective officers, directors, shareholders, employees,
attorneys, representatives, affiliates, and subsidiaries.
(k) SURVIVAL
OF
INDEMNIFICATION/DEFENSE/HOLD
HARMLESS.
Any
indemnification, defense or hold harmless obligation of Buyer for the benefit of Seller in this
Agreement shall survive the close of Escrow and/or termination of this Agreement
(l) FULL PERFORMANCE. Seller's delivery of the Deed to the Property to Escrow Agent shall
be deemed to be full performance and discharge of all of Seller's obligations under this
Agreement.
(m) EMINENT DOMAIN. In the event that the Seller's interest in the Property, or any part
thereof, shall have been taken by eminent domain, or shall be in the process of being taken on
or before the close of Escrow, either Party may terminate this Agreement and the Earnest
Money Deposit shall be returned to the Buyer and neither Party shall have any further rights or
liabilities hereunder, except as otherwise specifically provided in this Agreement.
(n) FORCE MAJEURE. No Party shall be responsible for delays in performance resulting from
acts of God, riots, acts of war, epidemics, power failures, earthquakes or other disasters,
providing such delay of performance could not have been prevented by reasonable precautions
28
and cannot reasonably be circumvented by such Party through use of alternate sources or
workaround plans.
(o) ADDITIONAL DOCUMENTS. All parties signing this Agreement hereby acknowledge
receipt of a copy of this Agreement
(p) NOTICE. This Agreement shall bind and inure to the benefit of the parties and their successors
in Interest. All notices, approvals, and other communications contemplated, given, or required
under this Agreement shall be in writing and shall be deemed given and received upon receipt
if: (i) delivered personally, (ii) mailed by registered or certified mail return receipt requested,
postage prepaid, (iii) sent by a nationally recognized overnight courier, (iv) delivered via
facsimile transmission, provided receipt is confirmed by telephone or by a statement generated
by the transmitting machine, and/or (v) via email to the address and attention of the Contact
Person set forth for the respective party in II.1.a or II.1.b, as appropriate.
(q) PROHIBITED PERSONS AND TRANSACTIONS. Each party represents and warrants to the
other that neither it, nor any of its affiliates, nor any of their members, directors or other equity
owners (excluding holders of publicly traded shares), and none of their principal officers and
employees: (i) is listed as a "specifically designated national and blocked person" on the most
current list published by the U.S. Treasury Department Office of Foreign Asset Control
("OFAC"); (ii) is a person or entity with whom U.S. persons or entities are restricted from
doing business under OFAC regulations or any other statute or executive order (including the
September 24, 2001 "Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit or Support Terrorism"); or (iii) is engaged in
prohibited dealings or transactions with any such persons or entities.
(r)
CONFIDENTIALITY: Buyer agrees this Agreement and the transactions contemplated
hereby are subject to the terms of that certain Confidentiality and Bid Conduct Agreement
(“Confidentiality Agreement”) signed by Buyer in favor of Seller and Auctioneer.
(s) AUTHORITY TO EXECUTE. If Buyer is a partnership, association, corporation, limited
liability company or trust, the signatory hereto represents and warrants that he/she/it is duly
authorized under applicable law to enter into this Agreement in behalf of such entity and that
such entity is duly formed and in good standing, having the right to contract for and acquire
property, and otherwise conduct business activities local to the Property.
(t) LEGALLY BINDING CONTRACT. THIS IS A LEGALLY BINDING CONTRACT. If you
do not understand the Terms and Conditions or the provisions of this Agreement, please
consult legal counsel prior to signing this document. Buyer has been advised by Seller,
Seller’s Broker, and Auctioneer, to seek legal, financial, construction, air quality,
environmental, and other professional inspections and/or opinions by/from qualified
professional regarding the Property, Buyer’s purchase of the Property, and this Agreement.
BY SIGNING THIS AGREEMENT, BUYER REPRESENTS AND WARRANTS IT HAS
CONSULTED WITH, OR HAD THE OPPORTUNITY TO CONSULT WITH AND
WAIVED CONSULTATION WITH LEGAL OR OTHER PROFESSIONALS AS ABOVE
DESCRIBED.
29
(u) LANGUAGE IN BOLD OR CAPITALIZED. Certain provisions of this Agreement may have
been set forth in capital letter, underlined or bolded for purposes of emphasis. All provisions
of this Agreement are, however, important and binding, and each should be reviewed and
understood by all parties hereto.
Dated:
Dated:
SELLER:
BUYER:
By:
By:
Name (Printed):
Name (Printed):
Title:
Title:
BUYER'S AGENT/BROKER (if any):
Buyer’s Broker/Agent understands and agrees
he/she/it will receive no commission payable out
of the Total Purchase Price, and any
compensation to which he/she/it may be entitled
shall be according to separate agreement
between him/her/it and Buyer, which
compensation shall be payable directly by Buyer
outside Escrow. Neither Escrow, Seller, Seller’s
Broker, nor Auctioneer shall have any
obligation to provide compensation to Buyer’s
Broker/Agent.
Broker/Agent Name
By:
Name (Printed):
30
Title:
License Number:
31
EXHIBIT A
ADDITIONAL DISCLOSURES
Lead Based Paint – Hazards Disclosure (if pre-1978) (SEE BELOW)
Pamphlet: “Protect Your Family From Lead in Your Home”; to view please visit
http://www.epa.gov/lead/pubs/leadpdfe.pdf
Pamphlet: “Homeowners Guide to Earthquake Safety”; to view please visit
http://www.seismic.ca.gov/pub/CSSC_2005_HOGreduced.pdf
Pamphlet: “Residential Environmental Hazards: A Guide for Homeowners, Buyers, Landlords, and
Tenants”; to view please visit
http://www.cdph.ca.gov/programs/CLPPB/Documents/ResEnviroHaz2005.pdf
Fair Housing Disclosure (SEE BELOW)
Real Estate Agency Relationship (SEE BELOW)
Megan’s Law (Registered Sex Offender Database) (SEE BELOW)
Smoke Detector Statement of Compliance (SEE BELOW)
Water Heater Statement of Compliance (SEE BELOW)
If Applicable:
Death on Property in Last 3 Years
Release of Illegal Controlled Substance Remediation Order (“Drug Lab” Clean Up Order)
FAIR HOUSING ACT DISCLOSURE. Under the Federal Fair Housing Act, it is illegal to discriminate
in the rental or sale of housing on the basis of race, color, national origin, religion, sex, handicap, or
familial status.
LEAD BASED PAINT – HAZARDS DISCLOSURE (if pre-1978 home)
Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards
Lead Warning Statement
Every purchaser of any interest in residential real property on which a residential dwelling was built prior
to 1978 is notified that such property may present exposure to lead from lead-based paint that may place
young children at risk of developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The
seller of any interest in residential real property is required to provide the buyer with any information on
lead-based paint hazards from risk assessments or inspections in the seller’s possession and notify the
buyer of any known lead-based paint hazards. A risk assessment or inspection for possible lead-based
paint hazards is recommended prior to purchase.
Seller’s Disclosure
(a) Presence of lead-based paint and/or lead-based paint hazards (check (i) or (ii) below):
(i) ______ Known lead-based paint and/or lead-based paint hazards are present in the housing
(explain).
______________________________________________________________________________
(ii) __X__ Seller has no knowledge of lead-based paint and/or lead-based paint hazards in the
housing.
(b) Records and reports available to the seller (check (i) or (ii) below):
32
(i) ______ Seller has provided the purchaser with all available records and reports pertaining to
leadbased paint and/or lead-based paint hazards in the housing (list documents below).
_____________________________________________________________________________
(ii) __X__ Seller has no reports or records pertaining to lead-based paint and/or lead-based paint
hazards in the housing.
Purchaser’s Acknowledgment (initial)
(c) ___X____ Purchaser has received copies of all information listed above.
(d) ___X____ Purchaser has received the pamphlet Protect Your Family from Lead in Your Home.
(e) Purchaser has (check (i) or (ii) below):
(i) _____ received a 10-day opportunity (or mutually agreed upon period) to conduct a risk
assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards; or
(ii) __X__ waived the opportunity to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards.
Agent’s Acknowledgment (initial)
(f) ___X____ Agent has informed the seller of the seller’s obligations under 42 U.S.C. 4852(d) and is
aware of his/her responsibility to ensure compliance.
Certification of Accuracy
The following parties have reviewed the information above and certify, to the best of their knowledge,
that the information they have provided is true and accurate.
__________________________________________________
Seller
Date
__________________________________________________
Purchaser
Date
__________________________________________________
Agent
Date
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP
(As required by the Civil Code)
When you enter into a discussion with a real estate agent regarding a real estate transaction, you should
from the outset understand what type of agency relationship and representation you wish to have with the
agent in the transaction.
SELLER’S AGENT. A Seller’s agent under a listing agreement with the Seller acts as the agent for the
Seller only. A Seller’s agent or a subagent of that agent has the following affirmative obligations:
To the Seller:
(a) A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent’s duties.
33
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the
property that are not known to, or within the diligent attention and observation of, the parties.
An agent is not obligated to reveal to either party any confidential information obtained from the other
party which does not involve the affirmative duties set forth above.
BUYER’S AGENT. A selling agent can, with a Buyer’s consent, agree to act as agent for the Buyer only.
In these situations, the agent is not the Seller’s agent, even if by agreement the agent may receive
compensation for services rendered, either in full or in part from the Seller. An agent acting only for a
Buyer has the following affirmative obligations:
To the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent’s duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the
Property that are not known to, or within the diligent attention and observation of, the parties. An
agent is not obligated to reveal to either party any confidential information obtained from the
other party which does not involve the affirmative duties set forth above.
AGENT REPRESENTING BOTH SELLER AND BUYER. A real estate agent, either acting directly or
through one of more associate licensees, can legally be the agent of both the Seller and the Buyer in a
transaction but only with the knowledge and consent of both the Seller and the Buyer.
In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the
Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either the
Seller or the Buyer.
(b) Other duties to the Seller and the Buyer as stated above in their respective sections.
In representing both Seller and Buyer, the agent may not, without the express permission of the respective
party, disclose to the other party that the Seller will accept a price less than the listing price or that the
Buyer will pay a price greater than the price offered. BUYER AND SELLER ACKNOWLEDGE THAT
NO DUAL AGENCY EXISTS IN CONNECTION WITH THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT.
The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the
responsibility to protect their own interests. You should carefully read all agreements to assure that they
34
adequately express your understanding of the transaction. A real estate agent is a person qualified to
advise about real estate. If legal or tax advice is desired, consult a competent professional.
Throughout your real property transaction you may receive more than one disclosure form, depending
upon the number of agents assisting in the transaction. The law requires each agent with whom you have
more than a casual relationship to present you with this disclosure form. You should read its contents each
time it is presented to you, considering the relationship between you and the real estate agent in your
specific transaction.
DISCLOSURE AND CONFIRMATION OF AGENCY RELATIONSHIP.
Seller’s Broker represents and is the agent of the Seller exclusively in the purchase and sale of the
Property. Buyer acknowledges that neither Seller’s Broker nor Auctioneer has a brokering or agency
relationship with Buyer, nor do either Seller’s Broker or Auctioneer share a fiduciary relationship with
Buyer.
Seller’s Broker and Auctioneer specifically disclaim any dual agency, and Buyer acknowledges neither
Seller’s Broker nor Auctioneer owes Buyer any obligation or duty as might otherwise arise out of a dual
agency relationship.
Buyer and Seller acknowledge receipt of all necessary disclosures to be provided by Seller’s Broker
and/or Auctioneer in connection with the negotiations underlying this Agreement and/or the purchase and
sale of the a particular Property have been made and provided by Seller’s Broker and Auctioneer. Buyer
and Seller waive any further obligation on the part of Seller’s Broker and/or Auctioneer to provide
additional disclosures in connection with the availability of Property for purchase and/or the receipt or
communication of offers made in connection with a subject Property.
Seller’s Broker
By:
Name:____________________________
Buyer
(Signature)
(date)
Buyer
(Signature)
(date)
Company:_________________________
License No.:_______________________
CALIFORNIA SEX OFFENDER INFORMATION. Pursuant to Section 290.46 of the Penal Code,
information about specified registered sex offenders is made available to the public via an Internet Web
site maintained by the Department of Justice at www.meganslaw.ca.gov. Depending on an offender’s
criminal history, this information will include either the address at which the offender resides or the
community of residence and ZIP Code in which he or she resides. The public is authorized to gain access
to certain sex offender information through the California Sex Offender Registry or by contacting local
law enforcement offices in the community where the Property is located. For a list of California law
35
enforcement agencies, you may visit the California
http://www.meganslaw.ca.gov/pdf/LEAcontact.pdf or contact:
Department
of
Justice
website
at
California Department of Justice
Sex Offender Tracking Program
P. O. Box 903387
Sacramento, CA 94203-3870
(916) 227-4974
[email protected]
AIRPORT NOISE. Buyers should investigate the impact of airport flight paths and the noise levels at
different times of the day over that property. For more information on airport noise, visit the California
Department of Transportation, Division of Aeronautics.
SMOKE DETECTOR STATEMENT OF COMPLIANCE. Whenever a sale (or exchange) of a single
family dwelling occurs, the seller must provide the buyer with a written statement representing that the
property is in compliance with California law regarding smoke detectors. The State Building Code
mandates that all existing dwelling units have a smoke detector installed in a central location outside each
sleeping area. In a two-story home with bedrooms on both floors, at least two smoke detectors would be
required. (Health and Safety Code Section 13113.8; California Building Code Section 1210; State Fire
Marshal Regulation 92-04) Some local ordinances may impose more stringent requirements than the state
law. You should check with your local city or county building and safety departments regarding the
applicable requirements for the property. Generally, a written statement of smoke detector compliance is
not required for transactions for which the Seller is exempt from providing a transfer disclosure statement.
Seller hereby represents that the property sold pursuant to this Agreement is in compliance with
California law regarding smoke detectors if required at the close of Escrow.
CERTIFICATION REGARDING WATER HEATER’S SECURITY AGAINST EARTHQUAKE. Seller
hereby certifies that the water heater will have been braced, anchored or strapped to resist falling or
horizontal movement due to earthquake motion pursuant to the minimum standards set forth in the
California Plumbing Code at the close of Escrow. (Health and Safety Code Section 19211)
METHAMPHETAMINE CONTAMINATION. Neither Seller, Seller’s Broker, nor Genesis Acquisition
Management, Inc., have actual knowledge of any potential contamination or suspected contamination by
methamphetamine laboratory activity nor of any order prohibiting its use or habitation. Buyer is
encouraged to conduct such due diligence as Buyer may deem desirable or necessary in this regard.
ENVIRONMENTAL HAZARDS. Seller is not aware of a defect or environmental hazard associated with
the Property, however this does not mean that a defect or environmental hazard does not exist on or near
the Property. It is the buyer’s responsibility to be informed and take additional steps to further
investigate.
36
Some potential hazards that may be found in the state include:
- Radon (www.epa.gov/radon)
- Floods (www.epa.gov/ebtpages/emernaturaldisasterfloods.html)
- Methamphetamine Labs
- Wood-Burning Devices (www.epa.gov/iaq/pubs/combust.html)
- Underground Storage Tanks (www.epa.gov)
- Well & Septic Systems (www.epa.gov/ebtpages/watergroundwaterwells.html)
- Contaminated Soils (www.epa.gov/ebtpages/pollsoilcontaminants.html)
- Groundwater (www.epa.gov/safewater/protect/citguide.html)
For more information on environmental hazards, visit www.epa.gov.
37
EXHIBIT B
ADDITIONAL ESCROW INSTRUCTIONS
38
SCHEDULE I
ARBITRATION PROCEDURES
If any allegation of a breach of this Agreement has not been resolved to the satisfaction of
both Seller and Buyer through the mediation process mandated by Article II, Section 17 of the
Agreement, either party may commence arbitration to resolve the dispute. To commence arbitration,
the moving party shall deliver written notice to the other party that it has elected to pursue arbitration
in accordance with this Schedule I; provided that, neither Seller nor Buyer shall commence arbitration
with respect to an alleged breach of this Agreement before ninety (90) days following notification by
a party of the alleged breach. Within ten (10) business days after a party has provided notice that it
has elected to pursue arbitration, each party may submit the names of one or more proposed
arbitrators to the other party in writing. If the parties have not agreed on the selection of an arbitrator
within five (5) business days after the first such submission, then the party commencing arbitration
shall, within the next five (5) business days, notify the American Arbitration Association in Los
Angeles, California and request that it appoint a single arbitrator with experience in arbitrating
disputes arising in the real estate industry and who has not been previously rejected by either party.
Upon a showing of good cause, a party may request the arbitrator to direct the production of
such information, evidence and/or documentation from the parties that the arbitrator deems
appropriate. If requested by the arbitrator or any party, any hearing with respect to an arbitration shall
be conducted by video conference or teleconference except upon the agreement of both parties or the
request of the arbitrator.
The finding of the arbitrator shall be final and binding upon the parties. Judgment upon any
arbitration award rendered may be entered and enforced in any court of competent jurisdiction. The
costs of the arbitrator shall be shared equally between both parties. Each party, however, shall bear
its own attorneys’ fees and costs in connection with the arbitration.
39

PURCHASE AGREEMENT WITH JOINT ESCROW INSTRUCTIONS

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