Real Estate Purchase Agreement & Deposit Receipt (With Broker)

Real Estate Purchase Agreement & Deposit Receipt

This is intended to be a legally binding agreement.  Please read it carefully.

Seller:	__________________________	Property Address:	__________________________
			__________________________
Purchaser:	__________________________	Date:	__________________________

Received from Purchaser the sum of $ __________________ (“Initial Deposit”).  This sum, as evidenced by a bank check, is to be held uncashed until the mutual execution of this Agreement and then deposited in escrow within three (3) business days from the Contract Date (defined as the date of execution by the last signatory) as a deposit for the purchase of property (the “Property”) situated in the City of Mountain View, County of Santa Clara, State of California, more particularly described as follows:

All that real property, together with improvements thereon, commonly known as ______________________________ further identified as Assessor’s Parcel No. _________________.

1.    Terms of Sale:

       The purchase price (“Purchase Price”) shall be $ __________________ and shall be paid as follows:

A.	Initial Deposit:	$ __________________
B.	Increased Deposit:	$ __________________
C.	Balance Of Cash Down Payment:	$ __________________
D.	New Financing (See Paragraph 7 Below):	$ __________________
E.	Existing Financing (See Paragraph 7 Below):	$ __________________
F.	Seller Financing (See Paragraph 7 Below):	$ __________________
Total:		$ __________________

2.    Title Report:

       Within five (5) days following the Contract Date, Seller shall deliver to Purchase at Seller’s expense a current preliminary title report (the “Title Report”), together with a copy of all exceptions shown on the Title Report.

3.    Closing Date-Escrow:

A.  An escrow shall be opened with Chicago Title Company (the “Title Company”).  Escrow shall close sixty (60) days from the Contract Date (the “Closing Date”).  Each party shall deliver to Escrow Holder, in sufficient time for escrow to close on the Closing Date, all documents and monies required hereunder.  Close of escrow shall mean the date all documents required hereunder is placed of record.

B.  Seller, at Seller’s absolute discretion, shall be entitled to consecutive thirty (30) day extensions of the close of escrow date (with a minimum ending date of ________________________ ) after giving Purchaser written notice fifteen (15) days prior to close of each extension term.

C.  Property taxes, premiums on insurance acceptable to Purchaser, prepaid rents, interest, interest on assessments if assumed by Purchaser, and any other proratable items, shall be prorated as of close of escrow.  Security deposits shall be credited to Purchaser.  The amount of any bond or assessment, which is a lien, shall be paid by Seller.  As a condition to Purchaser’s obligations hereunder the Title Company shall issue its CLTA owner’s policy of title insurance insuring Purchaser in the amount of the Purchase Price as owner of the Property subject only to the Permitted Exceptions.

4.    Closing Costs:

       Closing costs are to be paid as follows:

            A.  Escrow Fees:                              [Seller]

            B.  CLTA Owners Title Policy:      [Seller]

            C.  County Transfer Tax:               [Seller]

            D.  City Transfer Tax:                     [Seller 50%, Purchaser 50%]

       Any additional escrow costs or fees shall be paid according to the custom and practice of the county in which the Property is located.  In the event Seller or Purchaser completes a tax-deferred exchange and additional closing costs and transfer taxes are incurred, the beneficiary of the exchange shall pay all additional costs arising out of the tax-deferred exchange.

5.    Possession:

       Possession shall be delivered to Purchaser on close of escrow.

6.    Document Delivery Schedule:           

       Unless otherwise specified, within five (5) days after the Contract Date, Purchaser and Seller shall deliver to each other, or to each other’s agent, all documentation required to be delivered.

7.    Conditions to Purchaser’s Performance:

       All duties of Purchaser to purchase the Property shall be expressly conditioned upon the satisfaction of each of the conditions set forth below on or before the date set forth with regard to each condition.  PURCHASER SHALL NOTIFY SELLER, IN WRITING, OF PURCHASER’S REMOVAL OR WAIVER OF EACH CONDITION SET FORTH BELOW WITHIN THE SPECIFIED TIME PERIOD OR THIS CONTRACT SHALL BE TERMINATED AND ALL DEPOSITS, WITH INTEREST, IF ANY, SHALL BE RETURNED TO PURCHASER WITHOUT PENALTY.

       In consideration for Purchaser’s Contingencies, Purchaser shall pay Seller One Hundred 00/100 Dollars ($ ________ ), which Seller shall retain whether or not escrow closes.  Said sum shall (not) be credited to Purchaser’s account if escrow closes.

       A.   Purchaser’s Inspections:

       (1)  Feasibility Period:

       Within thirty (30) days from the Contract Date, Purchaser’s determination that the Property, its income and development potential, its market position, its uses and other economic aspects are acceptable to Purchaser, in Purchaser’s sole discretion.

       (2)              Physical Inspections:

       Within thirty (30) days from the Contract Date, Purchaser’s approval of inspections by Purchaser and professionals employed by Purchaser of the Property and all improvements thereon, including, but not limited to, roof, plumbing, soils tests, electrical, sprinkler, water, sewer, engineering studies, heating and air conditioning system or systems, and structural integrity of the improvements, including structural pest control reports, toxic/hazardous substance inspections, and to measure the square footage of the Property, including land and any improvements.  Seller, by execution of this Agreement, hereby grants Purchaser and Purchaser’s authorized representative and experts the right to enter upon and inspect and make reasonable tests upon the Property at reasonable times and upon notice to Seller, and Purchaser shall hold Seller harmless from any damage or injury to persons or property by reason of the entry upon the Property by Purchaser, its agents and its experts.  Purchaser shall order and pay all costs with respect to such inspections.

       Purchaser’s approval of any inspection of the Property, however, shall not alter or diminish any Seller’s representations or warranties to the extent made under this Agreement, and Seller acknowledges and agrees that Purchaser is nonetheless relying on Seller’s representations and warranties made herein, except to the extent reliance on such representation or warranty is specifically waived, in whole or in part, in writing, by the Purchaser.

       (3)              Elevator and HVAC:

       Both the elevator and the HVAC units within the building must be in commercially operational condition.

       (4)              Inspection of Documents, Books and Records:

       Within thirty (30) days from the Contract Date, Purchaser’s inspection and approval of the following documents or copies thereof:  All surveys, soils tests, engineering studies, or any other test results or reports in Seller’s possession or under Seller’s control, any leases and/or tenant agreements, current rent roll, maintenance contracts, and any amendments thereto, covering the Property, and books and income/expense records covering the Property for the current year to and including the Contract Date.  Seller warrants and represents that the books and records are those kept and maintained by Seller in the ordinary and normal course of business and used by Seller in the computation of its federal income tax returns.

       (5)              Title Approval:

       Purchaser shall have thirty (30) days from the Contract Date within which to notify Seller, in writing, of Purchaser’s disapproval of any exception shown in the Title Report or the legal description.  If Purchaser does not give written notice of such disapproval within such period, the Title Report shall be deemed approved.  If Purchaser disapproves of any exception in writing as described above, Seller shall have 10 working days from the date of Seller’s receipt of written notice of the disapproval to give written notice to Purchaser that Seller shall remove the disapproved exception(s) prior to Escrow Closing.  Seller’s failure to deliver the notice shall mean Seller will not remove the exception.  If Seller elects not to remove any disapproved exception, Purchaser shall have five working days either (i) to terminate this Agreement or (ii) to waive its disapproval of such exception and agree to purchase the Property subject to the disapproved exception.  If Purchaser fails to so notify Seller, in writing, within five working days of its election pursuant to this paragraph, Purchaser shall be deemed to have elected to waive this condition.  In the event of a termination hereunder, the parties shall have no obligations hereunder and Purchaser’s deposit shall be returned to Purchaser.  Any exception which Purchaser has approved hereunder, either by Purchaser’s approval, Purchaser’s failure to disapprove such exception, or by Purchaser’s waiver of a disapproval, shall be deemed a “Permitted Exception.”

8.    Deposit Increase:

       Purchaser will deliver to Escrow Holder an additional sum of $ __________________ within three (3) days from the satisfaction or waiver of the conditions described in Paragraph(s) 7 above, bringing the deposit to the aggregate amount of $ __________________.  AT THE TIME PURCHASER DELIVERS THE INCREASED DEPOSIT TO ESCROW HOLDER, PURCHASER WILL EXECUTE AND DELIVER TO SELLER THE FOLLOWING AGREEMENT:  “PURCHASER AND SELLER AGREE THAT THE LIQUIDATED DAMAGES DESCRIBED IN THIS PURCHASE AGREEMENT WILL BE INCREASED TO THE AMOUNT OF THE INCREASED DEPOSIT, PLUS THE ORIGINAL DEPOSIT, ON THE DATE THE ADDITIONAL DEPOSIT IS DUE.”

9.    Liquidated Damages:

       IF PURCHASER IS IN DEFAULT IN THE PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT, BY PLACING THEIR INITIALS AT THE END OF THIS SENTENCE, PURCHASER AND SELLER AGREE THAT THE INITIAL DEPOSIT DESCRIBED IN THIS AGREEMENT SHALL BE DELIVERED TO SELLER AS LIQUIDATED DAMAGES.

       RETENTION OF THE DEPOSIT BY SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, BECAUSE OF THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH PRECEDED ACCEPTANCE BY SELLER OF PURCHASER’S OFFER TO ACQUIRE THE PROPERTY, THE PARTIES ACKNOWLEDGE THAT THE ACTUAL DAMAGE WHICH PURCHASER’S DEFAULT WOULD CAUSE TO SELLER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ESTABLISH.  IN ADDITION, PURCHASER DESIRES TO HAVE A LIMITATION ON ITS POTENTIAL LIABILITY TO SELLER IN THE EVENT THAT THE PURCHASER DEFAULTS IN ITS OBLIGATION TO TIMELY PERFORM ANY OF THE TERMS, COVENANTS AND CONDITIONS OF THIS AGREEMENT.  THEREFORE, IN ORDER TO INDUCE SELLER TO WAIVE ALL OTHER MONETARY REMEDIES IT MAY HAVE IN THE EVENT OF BREACH BY PURCHASER OF ITS OBLIGATIONS HEREUNDER, PURCHASER AND SELLER, BY INITIALING IN THE SPACE PROVIDED ABOVE, HAVE AGREED TO LIQUIDATED DAMAGES AS SET FORTH HEREIN, WITH THE AMOUNT OF THE PAYMENT TO SELLER AND THE TIMING OF SUCH PAYMENT HAVING BEEN THE SUBJECT OF CONSIDERABLE NEGOTIATIONS BETWEEN THE PARTIES.

       IF PURCHASER DEFAULTS IN ITS OBLIGATIONS HEREUNDER AFTER PURCHASER INCREASES ITS DEPOSIT, BY PLACING THEIR INITIALS AT THE END OF THIS SENTENCE, PURCHASER AND SELLER AGREE THAT FROM AND AFTER THE DATE THE DEPOSIT IS INCREASED, THE LIQUIDATED DAMAGES SELLER SHALL BE ENTITLED TO AS A RESULT OF PURCHASER’S DEFAULT, SHALL EQUAL THE INCREASED DEPOSIT PLUS THE ORIGINAL DEPOSIT.

                        Purchaser’s Initials _______________          Seller’s Initials _______________

10.  Binding Agreement:

       This Agreement, to the extent assignable, is binding upon the heirs, executors, administrators, successors and assigns of the Purchaser and Seller, and shall survive recordation of the Grant Deed and close of escrow.

11.  Assignment By Purchaser:

       Purchaser may assign its rights hereunder without the prior written consent of Seller.

12.  Representation of Authority to Execute:

       Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to so bind, and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee is the owner of the Property and has full right and authority to enter into this Agreement and perform all of its obligations hereunder.  To the extent that the signatories to this Agreement shall comprise of a group of individuals, the individuals represent that they are all the owners of the Property and agree that the obligations and liabilities of such individuals under this Agreement shall be joint and several.

13.  Flood Control Act:

       Seller discloses that the property is not located in a “flood zone,” as set forth on H.U.D. “Special Flood Zone Area Maps.”  As a condition to obtaining financing on most properties located in “flood zones,” some banks, savings and loan associations and insurance lenders require that H.U.D. flood insurance be carried where such properties are security for the loan.  This requirement is mandated by the H.U.D. National Flood Insurance Program and became effective ________________________.  Purchaser acknowledges that Purchaser has not received or relied upon any representations from either Seller or Broker(s) regarding the legal effect, interpretation or economic consequences of the National Flood Insurance Program and related legislation.

14.  Special Studies Zone Act:

       Seller discloses that the property [is OR is not] situated in a Special Study Zone as designated under the Alquist-Priolo Special Studies Zone Act, Sections 2621-2630, inclusive, of the California Public Resources Code, or otherwise in an area of the high geologic hazard (“Geologic Zone”).  If the Property is in a Geologic Zone, the construction or development on the Property of any structure for human occupancy may be subject to the findings of a geologic report prepared by a geologist registered in the State of California.

15.  Americans with Disabilities Act:

       The Americans with Disabilities Act (ADA) requires both the owner of real estate and the tenant of real estate to comply with its provisions.

       In part, the Act requires owners and tenants of public accommodations to remove physical barriers to access and provide auxiliary aids or services for persons with hearing, vision or speech impairment.  The ADA does not specify responsibility for compliance as between lessor and lessee or as between seller and purchaser.  Compliance and the allocation of responsibility for cost for compliance must be negotiated between the parties.

       [Name of Broker] Broker makes no representation or warranty with respect to compliance or noncompliance of the Property or any contemplated use of the Property.  We recommend that the parties consult their attorney(s) to determine if this Act applies to them and, if so, the requirements that must be met.  The applicability of the Act is a legal issue and we cannot give you legal advice on such matters.

16.  Legal Action:

       If either party or Broker files any action or brings any proceedings against the other arising out of this Agreement, or is made a party to any action or proceeding brought by the escrow holder, then the prevailing party shall be entitled to recover as an element of its cost of suit, and not as damages, reasonable attorneys’ fees to be fixed by the court.  California law shall govern this Agreement.

17.  Arbitration of Disputes:

       Any dispute or claim in law or equity arising out of this agreement, or any transaction resulting from this agreement, shall be decided by neutral binding arbitration in accordance with the California Code of Civil Procedure, Part III, Title 9.  Judgment upon any argument rendered may be entered in a court having jurisdiction thereof.  The parties shall have the right to discovery pursuant to California Code of Civil Procedure, Section 1283.05.  If the parties cannot agree on the selection of an arbitrator, the Presiding Judge of the Superior Court having jurisdiction to enforce the award shall select the arbitrator.  The losing party shall pay the arbitrator’s fee.

       NOTICE BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.  BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION, IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.  YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

       WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION TO NEUTRAL ARBITRATION.

                        Purchaser’s Initials _______________          Seller’s Initials _______________

18.  Broker Dual Agency:

       Purchaser and Seller hereby acknowledge [Name of Broker] (“Broker”) represents both parties herein, and Purchaser and Seller consent thereto.

       Except as expressly provided below, a dual agent was and is obligated to disclose to Seller and Purchaser all material facts or confidential information that could affect Seller’s or Purchaser’s decision to enter into the transaction.  The parties agree that Broker has not and will not, without the express permission of Seller, disclose to Purchaser that Seller is willing to sell the Property at a price that is less than the listing price, and conversely, Broker has not and will not, without the express permission of Purchaser, disclose to Seller that Purchaser will pay a price that is greater than the price offered.

19.  Toxic Contamination Disclosure:

       Seller and Purchaser acknowledge that they have been advised that numerous federal, state and/or local laws, ordinances and regulations (“Laws”) affect the existence and removal, storage, disposal, leakage of and contamination by materials designated as hazardous or toxic (“Toxics”).  Many materials, some utilized in everyday business activities and property maintenance, are designated as hazardous or toxic.

       Some of the Laws require that Toxics be removed or cleaned up by landowners, future landowners or former landowners without regard to whether the party required to pay for the “clean up” caused the contamination, owned the property at time the contamination occurred or even knew about the contamination.  Some items, such as asbestos or PCBs, which were legal when installed, now are classified as Toxics, and are subject to removal requirements.  Civil lawsuits for damages resulting from Toxics may be filed by third parties in certain circumstances.

       Broker has recommended, and hereby recommends, that each of the parties have competent professional environmental specialists review the Property and make recommended tests so that a reasonably informed assessment of these matters can be made by each of the parties.  Purchaser and Seller acknowledge that either Broker nor its agents or salespersons have been retained to investigate or to arrange for investigation by others, and have not made any recommendations or representations with regard to the presence or absence of Toxics on, in or beneath the Property.  Purchaser and Seller agree that they will rely only on persons who are experts in this field and will obtain such expert advice so each of them will be as fully informed as possible with regard to Toxics in entering into this Agreement.

20.  F.I.R.P.T.A.:

       Seller shall deliver to Purchaser at the close of escrow an affidavit executed by Seller under penalty of perjury stating Seller’s United States taxpayer identification number, that Seller is not a foreign person, and all other information required in accordance with Internal Revenue Code Section 1445(b)(2).

 

21.  Maintenance of the Property:

       Seller shall be responsible for normal and customary maintenance of the Property in its present condition, subject to normal wear and tear and the current tenant’s occupancy, and shall pay any and all expenses of any kind incurred in the normal and customary maintenance and operation of the Property until close of escrow; provided Seller shall have no obligation to replace any item or to incur any capital expenditures in such maintenance.

 

22.  Damage or Destruction:

       Notwithstanding the foregoing, if a material portion of the Property is damaged or destroyed prior to the close of escrow, Purchaser may elect to continue this Agreement in full force and effect without modification and to purchase the Property in its damaged condition, in which even Seller shall assign to Purchaser at close of escrow all insurance proceeds due as a result of such damage and destruction, whether or not such insurance proceeds are adequate to repair such damage and destruction.  A destruction shall be considered material if the cost of repair or replacement without deduction for depreciation exceeds 10% of the purchase price, provided that if applicable building codes or other laws or regulations require work exceeding the repair or replacement of the actual damage, the cost shall be considered to include all the work.  Unless Purchaser notifies Seller in writing within 10 working days from the date Purchaser is notified in writing of the cost of repair and amount of insurance proceeds to continue this Agreement, this Agreement shall terminate and Purchaser shall receive back its deposit, together with any interest earned on the deposit.

23.  Consult Your Attorney and Tax Consultant:

       This document has been prepared for submission by Purchaser and Seller to their attorneys and tax consultants for approval from the standpoint of protection of legal rights.  No representation or recommendation is made by [Name of Broker], a commercial real estate company, or its agents or employees, as to the legal sufficiency, legal effect, or tax consequences of this document or the transaction relating thereto.  THESE ARE QUESTIONS FOR YOUR ATTORNEY AND TAX CONSULTANT.

24.  Broker Representations:

       Purchaser and Seller understand that Broker has not made any investigation or determination regarding the value of the Property; the present or future use of the Property; any possible violations of any federal, state, county, or municipal ordinances, statutes, zoning; proposed acquisition of the Property by federal, state, county or municipal governments; the accuracy of income and expense information; existence or content of any leases; the existence of physical defects in the Property, the size of the Property or the size of any improvements, and Purchaser and Seller hereby release Broker from any liability relating thereto and agree that such investigation and determination has been Purchaser’s sole responsibility and Broker shall not be held responsible therefore.

       Purchaser is advised that any representation of square footage with respect to the Property and any improvements thereon are approximations ONLY that may be inaccurate.  Purchaser acknowledges that the Purchase Price is not based on the square footage of any improvements or lot size.

25.  Brokers:

       The only real estate broker involved in the purchase and sale of the Property is Broker representing Seller and Purchaser.  The Purchaser shall defend, indemnify and hold Seller harmless against any commission or finder’s fees or claims relating to the sale of the Property by any other person or entity whose claim arises out of the actions of Purchaser.  The Seller shall defend, indemnify and hold Purchaser harmless against any commission or finder’s fees or claims relating to the sale of the Property by any other person or entity whose claim arises out of the actions of Seller.  The Seller shall be responsible for the payment of the Broker’s fee or commission fee for the above referenced brokers to be paid immediately upon the close of escrow and transfer of title from Seller to Purchaser.  The commission to be paid Broker is five percent (5%) of the gross sales price.

       Any dispute with respect to the amount or payment of such commissions shall be subject to Paragraph 17 (Arbitration of Disputes) of this Agreement.

26.  Tax-Deferred Exchange:

       Both parties agree to cooperate with each other for the purpose of effecting a tax-deferred exchange(s) pursuant to Internal Revenue Code Section 1031, providing:

       A.  Close of escrow hereunder is not delayed subject to paragraph 3B;

       B.  The cooperating party shall incur no additional expense by reason of such cooperation; and

       D.  The exchanging party shall hold the cooperating party harmless from any and all liability by reason of the cooperating party’s acquiring title for the purposes of such exchange.

       A TAX-DEFERRED EXCHANGE IS A TECHNICAL MATTER WHICH SHOULD BE STRUCTURED BY A TAX ATTORNEY OR LICENSED CPA TO ASSURE COMPLIANCE WITH ALL LEGAL REQUIREMENTS.  HAVE YOUR TAX ADVISOR REVIEW AND STRUCTURE THIS ASPECT OF THIS TRANSACTION.

27.  Other Terms and Conditions:

       A.  Contact with Current Tenant:

             Once the initial deposit is placed into escrow by Purchaser, Purchaser shall have the right to contact the existing tenant directly to explore an amendment to the current lease, dated ________________________.

       B.  Estoppel Certificates:

             Prior to close of escrow, Seller shall furnish to Purchaser estoppel certificates from current tenants in a form reasonably acceptable to Purchaser.

       C.  Building Plans:

             Within ten (10) days after the Contract Date, Seller shall provide to Purchaser, at no expense to Purchaser, a copy of building layout plans in Seller’s possession or under Seller’s control, including floor plans and building elevation plans.

       D.  “As Built” Plans:

             Within ten (10) days after the Contract Date, Seller shall provide Purchaser with a complete set of “as built” plans of the Property.

       E.  Soils and Engineering Reports:

             Within ten (10) days after the Contract Date, Seller shall provide to Purchaser, at no expense to Purchaser, copies of any and all soils and engineering reports and studies in Seller’s possession or under Seller’s control.

       F.  Earnest Money Deposit:

             Any deposits made by Purchaser shall be placed in an interest bearing account by Escrow Holder, with any interest accrued thereon to be credited to Purchaser.

       G.  No New Leases:

             After the contract date, Seller shall not enter into any new leases or options to lease or negotiate termination, extensions or modifications of any existing leases without Purchaser’s prior written consent.

       H.  Unpaid Rent:

             Seller will retain the right to collect from tenants of the Property the unpaid rent tenants owed Seller, and Purchaser agrees to cooperate at no expense to Purchaser with Seller’s efforts to collect such rent.  All sums paid by Tenant to Purchaser after close of escrow shall be applied first to unpaid rent due Seller until such unpaid rent is paid, and the remainder, if any, paid to Purchaser.

       I.   Property to be Sold “As Is”:

(1)                 Except as otherwise expressly set forth herein, Purchaser acknowledges that Purchaser is purchasing the Property solely in reliance on Purchaser’s own investigation and that no representations or warranties of any kind whatsoever, express or implied, have been made by Seller, Seller’s agents, or Broker.  Purchaser further acknowledges that as of the close of escrow, Purchaser will be aware of all zoning regulations, other governmental requirements, site and physical conditions, and other matters affecting the use and condition of the Property, and Purchaser agrees to purchase the Property in the condition in which it is at close of escrow.

(2)  Except for the specific representations or warranties of Seller contained herein, Purchaser is purchasing the Property hereunder strictly on an “as is” basis, and regardless of the Property’s topography, climate, air, water rights, utilities, water, possible toxic waste or hazardous materials, present and future zoning, soil, subsoil, purpose to which the Property is suited, drainage, access to public roads, proposed routes or enlargement of roads or extensions thereof.  Purchaser further acknowledges and agrees that the Property is or may be subject to zoning, P.U.D., or other municipal ordinance restrictions (which Purchaser acknowledges Purchaser is familiar with).  The Property is to be purchased, conveyed, and accepted by Purchaser in its present condition, “as is,” and no patent or latent physical condition of the Property, whether or not known or unknown or discovered at a later date, shall affect this transaction and the Purchase Price paid for the Property hereunder.

       Purchaser is obligated to close escrow notwithstanding the condition of the Property.  All work in connection with preparing the Property for the use intended by Purchaser, all costs incidental thereto, and all other costs, fees, studies, reports, approvals, plans, surveys, permits, and expenses whatsoever necessary or desirable in connection with Purchaser’s acquiring, developing, using and/or operating the Property shall be obtained and paid for by and shall be the sole responsibility of Purchaser.  Purchaser has investigated and has knowledge of operative or proposed governmental laws and regulations, including, but not limited to, zoning, environmental (including specifically the regulations of the Environmental Protection Agency and the Bay Area Pollution Control District) and land use laws and regulations to which the Property may be subject, and shall acquire the Property subject to the foregoing and to such other laws and regulations that pertain to the Property.

(3)  Purchaser has neither received nor relied upon any representations concerning any laws and regulations made by Seller, Seller’s employees, agents, brokers or any other person acting on or in behalf of Seller.  Purchaser hereby waives, releases, acquits, and forever discharges Seller and Broker of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, that it now has or which may arise in the future on account of or in any way growing out of or connected with the condition of the Property, any toxic wastes or hazardous materials located thereon, any settlement or subsidence of construction thereon, if any, or with any operative or proposed governmental laws and regulations, including, but not limited to, zoning, environmental, and land use laws and regulations to which the Property may be subject or with Purchaser’s contemplated use and development of the Property.

       J.   Assignment of Warranties:

             Seller shall assign to Purchaser all warranties and all Seller rights against the contractors, subcontractors, suppliers and materials men involved in the construction or operation of the Property.

       K.  Seller’s Statement Regarding Toxics:

             Seller represents and warrants that to the best of Seller’s knowledge, no hazardous waste, hazardous substance or any hazardous or radioactive material, as those terms are defined in any local, state or federal law (collectively “Toxic”) has been stored, used, treated, produced or disposed of on the Property, nor has any Toxic come to be located in, on or beneath the Property or any improvement or equipment on the Property, or in the surface or groundwaters associated with the Property, which has not heretofore been disclosed by Seller to Purchaser in writing.

28.  Time and Date for Acceptance:

       Purchaser’s signature hereon constitutes an offer to Seller to purchase the Property.  Unless acceptance hereof is signed by Seller and the signed copy received by Purchaser or Purchaser’s agent, either in person or by mail to the address shown below by ________ (time), ___________________ (day), ________________________, this offer shall be deemed revoked and the deposit shall be returned to Purchaser.

29.  Time:

       Time is of the essence of this contract.

30.  Entire Agreement:

       Except for any addenda attached hereto, this Agreement constitutes the entire agreement between Purchaser and Seller with respect to the purchase of the Property by Purchaser and supersedes all other agreements, letters, memoranda or understanding respecting the same, whether written or oral.  Either party may not modify this Agreement by oral representation made before, contemporaneous with or after the execution of this Agreement.  All modifications, amendments or additions to this Agreement must be in writing signed by Seller and by Purchaser.

The undersigned Purchaser offers and agrees to buy the Property on the terms and conditions above stated and acknowledges receipt of a copy hereof.

Purchaser:  ______________________________________

 

By: ______________________________________             Date: ____________________________

Name Printed: __________________________________

 

Acceptance

The undersigned Seller accepts the foregoing offer and agrees to sell the Property on the terms and conditions set forth.

The undersigned Seller has employed Broker and for the Broker’s services agrees to pay Broker as a commission the sum of [five percent (5%)] of the selling price, payable in cash through escrow as follows:  (a)  on recordation of the deed or other evidence of title, or (b)  if completion of the sale is prevented by the default of Seller, upon Seller’s default, or (c)  if completion of the sale is prevented by the default of Purchaser, only if and when Seller collects the damages from Purchaser, by suit or otherwise, and then in an amount of one-half of that portion of the damages collected after first deducting title and escrow expenses and the expenses of collection, if any.

The undersigned Seller acknowledges receipt of a copy hereof and authorizes Broker(s) to deliver a signed copy of it to Purchaser.

 

Seller:  ______________________________________

 

By: ______________________________________             Date: ____________________