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Bid Now! Acknowledgment
Bid Now! allows you to make an offer on a property prior to or after the auction event. Click the Bid Now! button on the property details page to get started. All offers will be considered in the order that they are received and may be approved at any time. Upon approval, the property will be considered ‘SOLD’ and no other offers will be considered. Often bids are approved well before the final day. Submit your ‘highest and best’ bid quickly but no later than the deadline date of submission (see individual property for details).
A Buyer’s Premium will be added to the High Bid amount. See property details for amount.
Selling agent commissions vary by property and by Seller. Any additional incentives and bonuses and will be disclosed per property by your Hudson & Marshall representative. Please pay close attention to the Property Details page for each of your properties of interest as local and state rules may apply.
Should you have questions, please do not hesitate to contact the auction information office at 866.539.4173.
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TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL BIDDING, AND ALL INDIVIDUALS AND ENTITIES MAKING BIDS THROUGH LIVE AUCTIONS ON THE HUDSON & MARSHALL, LLC AUCTION WEBSITE (AND PURCHASES GENERALLY ASSOCIATED THEREWITH) AGREE AS FOLLOWS:
These Terms and Conditions apply to auctions conducted by Hudson & Marshall, LLC (“Auctioneer”), using either a web-based or live auction format (“H&M Online”), irrespective of how bids are received (whether through sealed, active, or live bid format), and all H&M Online-related real estate purchase and sale transactions.
These Terms and Conditions generally describe the auction of real property owned by one of more selling entities (“Seller”), which shall include the selling entity and any parent company, subsidiaries, affiliated companies, or any companies acting as agent in fact on behalf of a selling entity. Title to each such property (each a “Property” and together “Properties”) is in the name of an entity (“Seller”) that has taken title through: (a) foreclosure auction, (b) deed in lieu of foreclosure, (c) similar statutory, judicial or contractual procedure, or (d) purchase from an individual or entity. Each Seller of a Property set for auction has instructed Auctioneer to auction the listed Properties on the Terms and Conditions set forth herein. Auctioneer’s customers (each acting for itself and/or in behalf of its managed and/or represented funds) (“Customers”) registered as required by Auctioneer, and participating through the posting/making of online sealed, active or live bids will be deemed bidders (“Bidders”) in a respective Property-specific auction.
The Bidder making the highest bid (“High Bidder”) will be required to execute a non-negotiable Purchase Agreement with Joint Escrow Instructions (“Purchase Agreement”) as required by Seller (in a form the same as or substantially similar to that Purchase Agreement approved by Seller and posted on the Auctioneer’s website). Each Purchase Agreement will reflect as the total purchase price (“Total Purchase Price”) the amount of the high bid plus the amount of the applicable buyer’s premium as set forth in Section 4 below.
1. AUCTION PRIVILEGES
Prior to participation in any H&M Online, it is required that an individual or entity wishing to participate make application with Auctioneer for a right to bid, and be approved and granted the right to participate in particular auctions, and no participation is permitted absent such application, approval and grant of right. Such application and approval process must also include any entities in which the Customer may want title to Properties to be issued in instances where Customer is determined to be the High Bidder.
If you or your company would like to apply for auction bidding privileges, please go to the www.hudsonandmarshall.com website, click on the “Log on to MyH&M” tab, and follow the instructions there set forth. If approved, you or your company will be considered a Customer, and as a Customer will be provided the right to participate in certain H&M Online through use of you or your company’s Customer user name (“User Name”) and password (“Password”), as hereinafter described. Any auction bids made through use of a User
Name and Password assigned to a Customer will be considered a bid made in behalf of such Customer, and shall bind such Customer to these Terms and Conditions and the Purchase Agreement in connection with such bid(s).
2. BIDDER DUE DILIGENCE
In other than sealed bid auctions, each Property set for a H&M Online will be posted at least three calendar days prior to the start of the respective auction to allow interested Customers opportunity to perform their preferred due diligence (e.g. title review, property viewing, neighborhood rating, determination of occupancy status, tax research, property valuation, etc.). The Properties may not ordinarily be properties listed with brokers, or may be occupied, and therefore opportunities for physical inspection of Properties may be limited or unavailable. It is recommended all Customers interested in a particular Property complete their respective due diligence prior to posting a bid on a subject Property. By posting a bid, a Bidder represents, covenants and warrants it is bidding on the subject Property based on its own due diligence, calculation of value, and projection of prospective return on the subject Property, without reliance on any information, material, representation, or warranty from Seller or Auctioneer. By posting a bid, Winning Bidder represents, covenants, and warrants it is purchasing the subject Property relying solely on its own independent inspection and investigation of the subject Property, and, taking the foregoing into account, has bid on and will purchase the subject Property in its existing state and condition, as is, where is, as available, and with all faults and limitations. Each Customer, and in particular, without limitation, each Winning Bidder, waives any objection to or adjustment of its bids based on or arising out of the condition of a subject Property, irrespective of whether such Customer or Winning Bidder (or any of their/its Inspectors, as herein below defined) was able to conduct an inspection of all or any portion of the subject Property.
Each Bidder represents and warrants that, prior to making a bid in a H&M Online, it has reviewed and understands these Terms and Conditions and Seller’s form of Purchase Agreement, and agrees it is bound by these Terms and Conditions and will, if the Winning Bidder, be subject to such Purchase Agreement.
Bidders are encouraged to investigate all available public records associated with a Property prior to making an auction bid. Each Bidder, and in particular, without limitation, each Winning Bidder, represents and warrants it is not relying on any information posted or made available by Seller or Auctioneer, and has, to its own satisfaction, performed a full and complete investigation and examination of public records (including, but not limited to, records related to land use, conditions, covenants and restrictions, title, taxes, municipal, mechanics and other liens, and permit/building records) and all other matters, materials and sources that may disclose information relevant to a particular Property. Winning Bidder understands and agrees its purchase of a Property is subject to past due and current taxes, liens, fees, dues, rights-of-way, assessments, easements and other conditions, whether or not of record.
Any information provided by a Seller, its broker (“Seller’s Broker”), or Auctioneer regarding sizes, floor plans, square footage, bedrooms/bathrooms or any other information describing a Property are approximations only, and not particular representations made by the Seller, Seller’s Broker or Auctioneer; actual property size, dimensions of physical improvements, floor plans, square footage, and/or number of bedrooms, bathrooms or other rooms may vary. Each Bidder, and in particular, without limitation, each Winning Bidder represents and warrants that in making its decision to bid, including without limitation the amount of any such bid, on a particular Property, it is not relying on any such descriptive information posted on Auctioneer’s website or otherwise made available by Seller, Seller’s Broker or Auctioneer.
Information provided or made available, if any, by a Seller, Seller’s Broker, or Auctioneer in connection with a current or historic valuation of a Property may refer to: (a) a previously appraised value of the subject Property (whether prepared in connection with a mortgage loan, or otherwise), (b) a recent listing/asking price, (c) an assessed value, or (d) a broker price opinion. Such information provided is not intended as and shall not be deemed to be a representation or warranty of value, current or historic, of any Property by the Seller, the Seller’s Broker, or Auctioneer, and all such representations and warranties are hereby specifically disclaimed.
Winning Bidder acknowledges and agrees, neither the Seller, its affiliates, the Seller’s Broker, nor Auctioneer shall be liable for any damages or other claims, including without limitation, any credit allowance, adjustment, or winning bid or Total Purchase Price revision based upon any failure of any aspect of the subject Property, (e.g. legal condition, physical condition, liens, fees or dues owed, appliances, floor plans, value, etc.) to meet or conform to any specific information, standards or expectations.
The Seller makes no representations or warranties regarding the occupancy status of any Property or the existence or status of any claims by any persons claiming a right to lease, use or occupy all or a portion of any Property, whether at the outset of a Property auction or at the close of a purchase transaction. If a subject Property is occupied by/in the physical possession of a third-party or subject to a claim for the foregoing, the Seller may choose to make some effort to evict or remove the occupants prior to the closing of the purchase/sale transaction, but Seller is under no obligation to make or complete any such effort. WINNING BIDDER UNDERSTANDS THE SUBJECT PROPERTY MAY, AT THE TIME OF AUCTION AND THEREAFTER, BE OCCUPIED AND IN THE PHYSICAL POSSESSION OF A THIRD-PARTY OR SUBJECT TO A THIRD-PARTY CLAIM OF RIGHT TO OCCUPY OR POSSESS. WINNING BIDDER ACCEPTS ALL RISK ASSOCIATED WITH, AND WAIVES ANY AND ALL RIGHT TO WITHDRAW THE WINNING BID AND/OR OBLIGATION TO PURCHASE THE SUBJECT PROPERTY BASED UPON SUCH THIRD-PARTY OCCUPANCY OR CLAIM. In connection with any particular Property, Winning Bidder may be subject to the Protecting Tenant’s at Foreclosure Act of 2009, or other applicable state or federal laws. The Seller is unable to provide physical access for inspections for Properties that are or are assumed to be occupied. Bidders must not trespass on such Properties or disturb the occupant(s).
Winning Bidder acknowledges and understands the subject Property may be burdened by certain restrictions on rental rights and/or rent charge amounts (e.g. Section 8 housing, municipal rent restrictions, etc.), and agrees its Winning Bid has been calculated and made in light of such restrictions.
It is agreed by each Customer that, in connection with any visit to, or physical inspection and/or investigation (“Inspection”) of a Property by a Customer or any representative acting or visiting on its behalf (collectively the “Inspector”), the Inspector shall: (a) not approach, contact or involve itself in any discussions or communications with any current or former owner, tenant or other occupant of a Property; (b) not access or enter upon any Property, except as specifically permitted pursuant to this Agreement (c) not request or initiate any inspections of a Property by any governmental authority; (d) not request or initiate any governmental proceedings with respect to any Property, including, without limitation, applications for or modifications to building permits, conditional use permits, certificates of occupancy or other permits, grants, certificates, licenses, rights or entitlements associated with the Property; (e) repair and/or be financially responsible for the repair of any and all damage to the subject Property or otherwise arising from such Inspection, (f) not perform or have performed any activity that would subject the Property to lien, and (g) indemnify, defend and hold Seller, Seller’s Broker and Auctioneer harmless from all liability, claims, demands, damages, judgments, attorney’s fees and/or costs directly or indirectly arising from or associated with such Inspection. Customers warrant and agree that its Inspectors shall carry, or require anyone acting on Inspector’s behalf to carry, policies of liability, worker’s compensation and other applicable insurance, defending and protecting Sellers, Seller’s Brokers and Auctioneer from liability for any injuries or damage to persons or property occurring during any Inspection prior to close of the purchase and sale transaction associated with a subject Property.
All access to a Property must be coordinated through the Seller’s Broker or Auctioneer. No unauthorized
access is permitted, regardless of if the property is vacant.
3. AUCTION ACTIVITY
H&M ONLINES ARE SUBJECT TO RESERVE. Unless otherwise specifically provided, each H&M Online will be a reserve auction, meaning the Seller of each Property can accept or reject any bid and has also established a minimum selling price that is unpublished (“Reserve Price”). In auctions with a Reserve Price,
the Seller may instruct Auctioneer to publish an Opening Bid that is less than the Reserve Price of the subject Property. Auction bidding activity will not result in a winning bid (“Winning Bid”) unless and until the High Bid is accepted by the Seller, or an acceptable price is otherwise negotiated between the Seller and Bidder, as set forth in Section 8, below.
H&M Online may be administered as either an active bid (i.e. with posted bids visible to all Bidders), sealed bid, or live auctions. An active bid auction will allow competing Bidders to see the progression of bidding activity (not to include the identity of competitive Bidders), and allow each Bidder to post bids in response to bids made by other Bidders.
In sealed bid auctions a Bidder may submit a sealed bid for a Property that will be examined and considered, along with all competing sealed bids, by Auctioneer at close of an auction period (as may be extended in the unfettered discretion of Auctioneer and/or Seller), and the Bidder making the highest bid for a particular Property shall be determined to be the High Bidder for such Property. (Sellers reserve the right to post or make available Properties for auction and invite sealed bids subject to a respective Seller’s acceptance, without having established a reserve price.)
Alternatively, sealed bid auctions may be tiered or two-round processes, with the highest bidders in the first round of bids asked to make best and final sealed bids in a second round of bidding. In these tiered sealed bid auctions, a high bid will not be accepted in the first round. If the Seller dictates use of a tiered process in connection with a particular sealed bid auction of a Property, notice of use of the tiered process will be given at the outset of the sealed bid auction event.
Customer understands auctions may have certain time constraints, geographic limitations, and/or financial requirements that practically limit auction participation. Customer agrees Auctioneer may, in the exclusive discretion of the respective Seller and/or Auctioneer, extend an invitation to participate in certain auctions to a select or limited number of Customers, only, and no particular Customer has a right to demand participation in any such auction(s).
To become the Winning Bidder for a particular Property, a Bidder must either: (a) have made the highest bid (which will be presented to Seller for consideration consistent with Section 8, below) and have such high bid accepted by the Seller in its sole discretion; or (b) have agreed to a price acceptable to both the Seller and Bidder. Consistent with California Civil Code §1812.608(h) and California Commercial Code §2328, this shall serve as a notice and disclosure that Auctioneer reserves the right to, except where expressly prohibited by law, during a live bidding event (online or otherwise) place a bid on behalf of the Seller and may further bid on behalf of the Seller up to the amount of the Reserve Price by placing successive or consecutive bids for a Property, or by placing bids in response to other bidders. The Seller may withdraw a Property from auction at any time prior to the announcement of the designation of a Winning Bidder by the Auctioneer. Auctioneer is not acting as an agent for any Bidder in any capacity, and is acting exclusively as the Seller’s agent in the administering of H&M Online.
4. BUYER’S PREMIUM
Each Winning Bidder agrees, in addition to the amount of the Winning Bid, the Total Purchase Price of a Property will include a buyer’s premium (“Buyer’s Premium”) equal to a defined percentage of the amount of Winning Bid. (The buyer’s premium shall be no less than two percent and no more than five percent of the Winning Bid, though minimum Buyer’s Premium amounts may apply. If there is a specified Buyer’s Premium percentage posted on the auction page associated with a particular Property, then the Buyer’s Premium shall be the posted percentage of the Winning Bid. If there is no specified Buyer’s Premium percentage posted on the auction page associated with a particular Property, then the Buyer’s Premium for such Property shall be the greater of five percent (5%) of the Winning Bid or $1,750.) Therefore, the gross purchase price (“Total Purchase Price”) of a subject Property shall be equal to the amount of the Winning Bid plus the amount of the
Buyer’s Premium. The Total Purchase Price does not include other amounts payable by the Winning Bidder consistent with the Purchase Agreement required to conclude the purchase/sale transaction, which other amounts may include, but are not limited to, reimbursement of certain costs, transaction management fees, escrow/closing fees, property taxes, transfer taxes, liens, fees, dues, insurance, etc.
5. PRE-AUCTION SALES
Seller may instruct Auctioneer to submit any bids received prior to an auction event. If pre-auction bids are allowed, the particular Property description will indicate this. These Terms and Conditions shall govern all Pre- Auction Sales. All bids received will be communicated to the Seller who may accept, reject or counter such bid in their sole and absolute discretion. All Terms and purchase documentation will be the same as if purchased during the auction.
6. POST-AUCTION SALES
The Bidder who made the highest bid (“High Bid”) on a subject Property will have its High Bid submitted to the respective Seller for the Seller’s consideration (see Section 8, below). The High Bidder making a High Bid for a subject Property will ordinarily be given an opportunity to increase the amount of its High Bid prior to submission to Seller (though Auctioneer is not required to provide High Bidder the opportunity to increase the High Bid, and High Bidder is under no obligation to change its bid). If such High Bidder is given the opportunity and chooses to increase its High Bid in advance of submission to Seller, such increased High Bid shall for all purposes be considered to have been made in the course of the Subject Auction of the subject Property, and the High Bid (whether original or increased) shall then be submitted for consideration by Seller. Should the High Bid be acceptable to Seller, the High Bidder shall be designated to be the Winning Bidder, such price will be considered a Winning Bid, the Total Purchase Price for the subject Property will calculate as described herein, and the sale of the particular Property shall be transacted in accordance with the Purchase Agreement. Should the Seller not accept the High Bid on a particular Property, the Seller may choose to provide the Bidder with a counter-offer. Should the Seller and Bidder, through such an offer/counteroffer/counter-counteroffer process, agree on a mutually acceptable price for the Property, such Bidder shall be designated to be the Winning Bidder, such price will be considered a Winning Bid, the Total Purchase Price for the subject Property will calculated as above described, and the sale of the particular Property shall be transacted in accordance with the Purchase Agreement.
7. AGENCY DISCLOSURE
Auctioneer and all licensees employed, engaged or contracted by, or affiliated or associated with Auctioneer represent only the Seller in the auction and sale of the Properties. It is specifically understood and agreed Seller(s) or Auctioneer on behalf of Seller(s) may engage the services of licensed real estate brokers as Seller’s broker (“Seller’s Broker”). Customer agrees it shares an arms-length business relationship with each Seller, each Seller’s Broker and Auctioneer, and no fiduciary relationship or obligation, whatsoever, is created by such arms-length relationship, these Terms and Conditions or the Purchase Agreement.
8. BIDDING PROCESS AND AUTHORITY
Upon prior approval by Auctioneer, each Customer, and those representative bidding agents authorized by the Customer, may use the Customer’s “User Name(s)” and “Password(s)” to access and enter bids on the H&M Online website. The User Name(s) and Password(s) provided to each Customer must be used in connection with that Customer’s website auction activity, and use of such in the making of bids will bind the Customer to which the respective User Name(s) and Password(s) have been assigned.
For website auctions, each Property will have an established and posted auction period. In order, however, to allow all bids for any auction-posted Property to be properly input, and posted, the Auctioneer may, in its sole and absolute discretion, extend the close of bidding to allow for the making of additional bids. Once a bidding
period extension expires without the posting of a higher bid, the bidding will be closed. To purchase a particular Property through a H&M Online, a Bidder must have their High Bid accepted by the Seller and be acknowledged by the Auctioneer as the Winning Bidder (i.e. the Bidder acknowledged as being the Bidder to whom the Property will be sold consistent with these Terms and Conditions and a Purchase Agreement).
In the case of a web-based, active bid auction, once an auction is closed, the Bidder making the High Bid will receive a call from Auctioneer advising them they are the high bidder (“High Bidder”). Prior to submission of a High Bid to and/or consideration of a High Bid by Seller, the High Bidder must provide vesting information and a Purchase Agreement must be drawn and executed in connection with the High Bid. High Bidder must return the executed Purchase Agreement signed by an authorized representative of Bidder (and subject to acceptance by simple countersignature by Seller) to Auctioneer within four (4) business hours (“Document Return Period”) of the time it was sent to High Bidder by Auctioneer. (“Business hours” shall mean the hours between 8:30 a.m. and 5:30 p.m. PST or PDT, as applicable, excluding weekends and legal holidays.) High Bidder understands High Bidder’s execution of the Purchase Agreement does not bind Seller to the sale of the subject Property, and Seller shall be bound only upon Seller’s counter-signature of the Purchase Agreement. Upon receipt of the executed Purchase Contract, as well as receipt of the Earnest Money Deposit (pursuant to Section 9 below), the High Bid will be submitted to the respective Seller for consideration, and, in that Seller’s sole discretion, may be accepted, rejected or countered by such Seller. High Bidder agrees its bid offer shall remain open and subject to acceptance, rejection or counter-offer by the Seller, in the Seller’s sole discretion, for a period of ten (10) business days following close of the subject auction. In instances where such High Bid is accepted by the Seller, Auctioneer will advise High Bidder via email the High Bid has been accepted and High Bidder has been designated the Winning Bidder. A High Bidder is not a Winning Bidder until Seller accepts the High Bid and High Bidder is designated the Winning Bidder by Auctioneer.
The Purchase Agreement shall contain the exact terms and conditions of the sale of the subject Property. Winning Bidder must agree to be bound by all terms, provisions and conditions of the Purchase Agreement and the related disclosure and conveyance documents, if any, for the subject Property. In connection with a particular Property, and in the case of any conflict between the terms of the Purchase Agreement and these Terms and Conditions (or any and all other documents and information provided in connection with the subject Property), the terms of the Purchase Agreement shall apply. Any applicable Confidentiality Agreement shall remain in full force and effect pursuant to the terms thereof.
The Purchase Agreement contains joint escrow instructions sufficient for the close of escrow, though commonly a Winning Bidder may be required to execute limited additional escrow instructions or other documents associated with the purchase and sale of a particular Property. The Purchase Agreement requires that Winning Bidder pay certain costs and fees associated with the purchase/sale transaction or escrow thereof, and any additional escrow instructions or other documents may set forth certain other and further financial obligations of Winning Bidder.
High Bidder agrees to make itself reasonably available to Auctioneer during the Contact Period. If High Bidder fails to make itself reasonably available to Auctioneer, or High Bidder fails to execute and return the Purchase Agreement within the Document Return Period, Auctioneer or Seller may declare the High Bidder to be in default on the subject Property. If the High Bidder is declared to be in default, the High Bidder’s bid shall be null and void, and the Auctioneer and Seller shall have no further liability or obligation to that Bidder in connection with such bid or the subject Property. (Notice of such declaration of default may be provided to High Bidder via email or fax, but need not be provided prior to such declaration taking effect.) Further, in connection with such default, such Bidder/Customer agrees it shall be obligated to pay liquidated damages in an amount equal to those described in the Purchase Agreement. Upon such declaration of default as herein described, Auctioneer, Seller’s Broker and Seller reserve the right to, at any time, set the subject Property for subsequent sale or auction or take such other action in connection with the subject Property as the Seller directs.
Although cause is not required for termination of auction privileges (see Section 17, below), default by a High Bidder will commonly prompt Auctioneer to suspend or terminate the defaulting High Bidder’s right to participate in all or particular Hudson & Marshall Auctions, and/or to terminate such High Bidder’s status as a “Customer”.
9. PAYMENT TERMS
A High Bidder represents and warrants its ability to pay the full amount of the Total Purchase Price within three (3) business days of the close of the auction underlying its purchase of a particular Property. High Bidder, consistent with the terms of the Purchase Agreement, shall within 12 business hours of High Bidder’s signing of the Purchase Agreement wire transfer an Earnest Money Deposit in an amount equal to 5% of the Total Purchase Price (Earnest Money Deposits for Title Impaired Auctions will be 3% of the Total Purchase Price, and auctions will be clearly labeled as such on the auction website) to Escrow Agent (as that term is defined in the Purchase Agreement). If at the time High Bidder wire transfers its Earnest Money Deposit to Escrow Agent the Seller has not yet accepted High Bidder’s High Bid as a Winning Bid, and has not yet executed and returned the Purchase Agreement, then, pending receipt of the Seller signed copy of the Purchase Agreement, Escrow Agent shall deposit and hold such wire transferred amount into a neutral escrow depository account. Should High Bidder fail to timely deposit with Escrow Agent the Earnest Money Deposit, Auctioneer or Seller may declare the High Bidder to be in default of these Terms and Conditions, though in connection with its failure/default such High Bidder shall nonetheless be obligated to pay liquidated damages in an amount equal to those described in the Purchase Agreement. Upon such declaration of default, Seller and Auctioneer reserve the right to, at any time, set the subject Property for subsequent sale or auction, or take such other action in connection with the subject Property as the Seller directs, without further liability or obligation to High Bidder.
Winning Bidder may pay cash for, or elect to finance its purchase of a Property. If Winning Bidder elects to finance its purchase of a Property, such financing must be confirmed, to the satisfaction of Seller, in its sole discretion, at open of escrow as being timely available to facilitate the anticipated closing of escrow. The purchase of a Property shall NOT be subject to any loan or financing contingency (see Section 14, below).
Should Winning Bidder fail to timely pay the Total Purchase Price and other amounts it is required to pay pursuant to the Purchase Agreement, Auctioneer or Seller may declare the Winning Bidder to be in default. (Notice of such declaration of default may be provided to Winning Bidder via email or fax, but need not be provided prior to such declaration taking effect.) Upon such declaration of default, Seller and Auctioneer reserve the right to, at any time, set the subject Property for subsequent auction, without liability or obligation to Winning Bidder. In connection with such default, such Bidder/Customer agrees it shall be subject to liquidated damages as are described in the Purchase Agreement. Again, although cause is not required for termination of auction privileges (see Section 17, below), default by a Winning Bidder will commonly prompt Auctioneer to suspend or terminate the defaulting Winning Bidder’s right to participate in all or particular H&M Online, and/or to terminate such Winning Bidder’s status as a “Customer”.
All Property purchase transactions initiated through a H&M Online shall, unless some other calendar is established pursuant to the terms of the Purchase Agreement, close no later than fifteen (15) business days following the open of escrow as set forth in the Purchase Agreement. Winning Bidders shall be required to pay such amounts in addition to the Total Purchase Price as are set forth/described in the Purchase Agreement, including, but not limited to, transaction management fees, applicable closing costs, escrow/closing fees, recording fees, title insurance premium and fees, loan fees, document preparation fees, documentary transfer taxes, property taxes, liens, assessments, and, if applicable to the subject Property, homeowners’ association, condominium association or other association fees, in each case whether for periods before or after the close of escrow. In addition, 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 company/title insurer other than the title company/title
insurer that prepared the preliminary title search/preliminary title report posted on the H&M Online website (“Posted Report”) in connection with a Property being purchased by Buyer (whether as a result of auction-related sale, or pre- or post-auction offer/counteroffer activity), Buyer nonetheless agrees, as part of closing costs, to pay the cost of the Posted Report.
NO PRORATIONS ARE CONTEMPLATED UNDER THESE TERMS AND CONDITIONS OR THE PURCHASE AGREEMENT (UNLESS OTHERWISE NOTED IN SUCH PURCHASE AGREEMENT), AND 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, WHETHER PAST DUE, DELINQUENT OR CURRENTLY DUE, SHALL, IN ADDITION TO THE TOTAL PURCHASE PRICE, BE DEPOSITED WITH ESCROW AGENT, BORNE AND PAID BY THE WINNING BIDDER; ANY SUCH AMOUNTS WHICH BY LAW ARE PAID OR TO BE PAID BY SELLER SHALL BE REIMBURSED TO SELLER BY WINNING BIDDER PRIOR TO CLOSE OF ESCROW.
The Seller and/or Auctioneer may, at the request of Winning Bidder and in the sole discretion of Seller and/or Auctioneer, grant an extension of the escrow closing date consistent with the Purchase Agreement. Any Extension Fee (as such term is defined in the Purchase Agreement) payable in connection with such an extension will be payable by Winning Bidder in addition to and not credited toward the Total Purchase Price.
Subject to the terms of the Purchase Agreement, the Seller intends to convey title, and Winning Bidder is willing to accept transfer of title, without warranty. Winning Bidder is obligated to research and investigate all title issues prior to the submission of an auction bid, and by making a bid warrants it has performed such research and investigation and is satisfied with the condition of title. The insurability of a Property’s title is not warranted by the Seller, the Seller’s Broker or Auctioneer, and all risk associated with title and any expense associated with title insurance or contests is assumed by Winning Bidder. The purchase of a Property is subject to past due, delinquent and current taxes, liens, dues, fees, rights-of-way, assessments, easements, parties in possession, and other conditions, whether or not of record.
A Winning Bidder may be authorized to manage the capital of an investment fund(s) (each a “Represented Customer”), and, if title to a particular Property is intended by Winning Bidder to be taken in the name of a Represented Customer, the Winning Bidder must communicate to Auctioneer the name of the Represented Customer within one (1) business day following the close of auction and at the time of Auctioneer’s first post- auction telephonic contact with Winning Bidder, provided such Represented Customer was itself approved by Auctioneer as a Customer prior to open of the related auction. Customer agrees, prior to making any bid in behalf of any Represented Customer, to provide Auctioneer with a list containing the names of all Represented Customers for which Customer will be acting, as well as documents evidencing Customer’s right to make bids in behalf of such Represented Customers. The entity designated by Winning Bidder to take title at close of escrow (“Buyer”) will be required to execute the Purchase Agreement. Should Buyer refuse to timely sign a Purchase Agreement, then Winning Bidder shall be obligated to pay liquidated damages in an amount equal to those described in the Purchase Agreement. Should Buyer default in its obligations under the Purchase Agreement, both Buyer and Winning Bidder shall be obligated to pay liquidated damages in an amount equal to those described in the Purchase Agreement.
Each Customer understands it is the goal of each Seller to conclude the Seller’s legal obligations in connection with properties transacted as generally described in these Auction Terms and Conditions, and each Customer understands and agrees it may be required that the Buyer of a particular property acquire a title insurance policy in connection with its purchase of such property. Additional documents may be required by escrow prior to closing.
12. CLOSING INDEMNITY
In connection with a particular Property transaction, and in addition to the indemnity set forth in the Purchase Agreement, Winning Bidder agrees to indemnify, defend and hold each of Seller, Seller’s Broker and Auctioneer (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, 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 of the Seller Indemnified Parties resulting from, arising out of or in any way relating to (i) any diligence or inspection activities of Winning Bidder, its agents or other representatives; (ii) the ownership, condition, maintenance or operation of any Property and attributable to events occurring on or after the close of escrow; (iii) claims for amounts due or owed by any of the Seller Indemnified Parties the responsibility for which has been allocated to or assumed by Winning Bidder under these Terms and Conditions and/or the Purchase Agreement, including without limitation, Winning Bidder’s closing costs, homeowners/condominium owners association dues, fees and assessments, property taxes, special taxes, liens, assessments, penalties, charges, or amounts, of any type, due any third party in connection with the subject Property; (iv) any unlawful detainer, eviction or other proceedings commenced, maintained or advanced against any occupants of the Property or any claimants by, through, or on behalf of Winning Bidder, its predecessors, successors and/or assigns; and (v) Winning Bidder’s or Buyer’s breach of any of its/their obligations under these Terms and Conditions and the Purchase Agreement. In connection with each Property acquired by Winning Bidder, this paragraph shall survive close of escrow and recordation of title documents.
13. LIQUIDATED DAMAGES
Winning Bidder agrees that, should it or Buyer fail to comply with any of its obligations as set forth in these Terms and Conditions, or subsequently default under the Purchase Agreement, the purchase/sale of the Property may be terminated or cancelled by the Seller, at its sole election, and the Winning Bidder and Buyer shall be required to pay liquidated damages as set forth in the Purchase Agreement, or in an amount equal thereto.
No financing contingency shall be applicable to any purchase of a Property. Neither Auctioneer nor the Seller will provide lending or financial services in connection with the purchase of a Property, and neither Auctioneer nor the Seller makes any representation regarding the fitness for financing of any particular Property.
Winning Bidders who chose to use financing must provide the lender’s information to Auctioneer and Escrow Agent. Winning Bidder may be required to fill out an authorization with such lender to verify the credit status of Winning Bidder. Winning Bidder may also be required to show a Pre-Qualification Letter or Proof of Funds prior to bidding.
15. BROKER/AGENT PARTICIPATION
H&M Online encourages the participation of real estate brokers and agents in its auctions. Cooperating broker commissions will vary depending on auction type and Property but will typically be a percentage of the Winning Bid amount. For certain properties no cooperating broker commission may be available. Please check each specific Property details page to determine what the cooperating broker commission, if any, will be.
Before being eligible to receive a cooperating broker commission, each Broker/Agent must first register with H&M Online. Registration typically includes the completion of a Broker/Agent Registration Form as well as a W-9 (if an Agent, this form must be completed by the Broker that holds your license, as payment may only be paid to a licensed Broker). For more details please contact our Customer Service Department at email@example.com.
Cooperating broker commissions will be paid to Broker/Agents who (a) have completed the registration requirements at least 24 hours prior to an auction event, (b) have been confirmed by their client(s) as their representative and (c) such client(s) is declared the Winning Bidder on the Property and successful close escrow on the transaction.
Once a Broker/Agent successfully registers and becomes a Registered Broker/Agent, they will be expected to perform the following duties for each transaction: (a) execute all necessary documentation, including completing all necessary electronic signatures on the Purchase Agreement, within the necessary timeframes throughout the entire Auction and Post-Auction process and (b) remain with your client throughout the entire transaction (commissions will only be paid upon closing).
Unless authorized by the applicable seller, no commissions will be paid to a Registered Broker/Agent that (a) is acting as a Principal in the transaction, (b) acting as a Broker/Agent on behalf of an entity it has an interest in,(c) who is not duly licensed as a real estate agent/broker in the State in which the Property lies and/or (d) who’s client is already a registered and approved Customer with H&M Online.
All Customers, Bidders, and Winning Bidders, and each of them, agree they/it shall not, before or after the close of escrow associated with the purchase of a Property: (a) use or permit the use by any person of Seller’s name, (b) represent or imply that Customer is affiliated with, authorized by or in any way related to Seller, (c) institute any legal, collection or enforcement proceeding in the name of Seller or continue to prosecute any pending legal, collection or enforcement proceeding in the name of Seller, or (d) mislead, whether through misrepresentation or nondisclosure or otherwise, any person as to the identity of the owner of any of the Properties. Any breach of these provisions shall be considered a default and although cause is not required for termination of auction privileges (see Section 17, below), default will commonly prompt Auctioneer to suspend or terminate the defaulting Customer’s right to participate in all or particular H&M Online, and/or to terminate such Customer’s status as a “Customer”. The effect and obligation of this paragraph shall survive the close of escrow on each Property.
17. MISCELLANEOUS H&M ONLINE INFORMATION
Termination of Auction Privileges: Sellers and Auctioneer, and each of them, in their sole and unrestricted discretion, reserve the right to, at any time, with or without notice, deny any Customer or particular Customer’s representative access to H&M Online, to suspend or terminate any Customer’s right to participate in all or particular H&M Online, and/or to terminate any Customer’s status as a “Customer”, with or without cause or explanation. A Customer so denied, suspended or terminated shall have no right to contest, object to, restrain or enjoin the decision/action of Seller(s) and/or Auctioneer, and Seller(s) and Auctioneer shall have no liability for damages suffered, costs or expenses incurred, fees paid, or other economic or non-economic loss or claim of any denied or terminated Customer in connection with such denial or termination, or otherwise.
No Marketing: All Customers, Bidders and Winning Bidders, and each of them, agree they/it shall not market any Property for sale, prior to any close of escrow. Any breach of these provisions shall be considered a default and although cause is not required for termination of auction privileges (see Section 17, above), default will commonly prompt Auctioneer to suspend or terminate the defaulting Customer’s right to participate in all or particular H&M Online, and/or to terminate such Customer’s status as a “Customer”.
Disputes: Sellers and Auctioneer have the right to withdraw from auction or postpone the auction of any Property, and to change any terms of an auction, including the alteration of any particular conditions of sale, through the posting of an announcement of change in terms prior to or during the course of a particular auction. In the event of any confusion or conflict among bids or a dispute among Bidders, at any time, it is
agreed the Auctioneer shall have all authority to resolve the confusion, conflict or dispute, including, without limitation, the right to determine the High Bid, to post anew the subject Property for auction, etc.
Jurisdiction and Venue: H&M Online are administered in and subject to the laws of the State of California. Use of this website and participation in our auctions constitute your agreement that any conflict arising out of or connected to the rights and obligations of the parties with respect to these Terms and Conditions and/or the conduct of related auctions shall be governed by, and interpreted and enforced under the laws of the State of California without regard to conflict of law principles. By submitting a bid through H&M Online, each Bidder shall be deemed to have irrevocably submitted to the dispute resolution consistent with that described in the Purchase Agreement in connection with any claim, proceeding or other legal process relating to the auction, these Terms and Conditions, and/or the purchase/sale of any Property, and the Bidder hereby irrevocably submits to the personal and subject jurisdiction of the State of California and that any claim or dispute relating to or arising under the use of this website and/or participation in our auctions will be exclusively evaluated and determined under California law, and any litigation or dispute resolution will take place in California, using California courts or dispute resolution services in Los Angeles County, regardless of where the subject auction took place or the location of the subject property under dispute.
No Offers to Sell: Any information on any website, in any brochure, e-mail or postcard and any and all information available regarding the Properties shall not constitute a representation, warranty, offer to sell or a solicitation for any offer to buy any of the Properties referenced herein. In addition, and without limitation of the foregoing, any website or brochure shall not constitute an offer to sell or a solicitation of any offer to buy nor shall there be any sales of any of the Properties in any state in which such offer, solicitation, or sale would be unlawful prior to the registration or qualification under the applicable securities laws of that state. Seller, Seller’s Broker, and Auctioneer make no representation or warranty as to the manner in which the purchase transaction process will be managed.
Seller’s Obligation to Sell: No obligation to sell shall be binding on Seller unless and until a written Purchase Agreement is signed and delivered by Seller. Seller reserves the right to rescind any oral acceptance of a High Bid prior to the execution and delivery of an executed Purchase Agreement for any reason, including the receipt of a subsequent higher bid, whether or not such subsequent bid was made within the time frames set forth in these Terms and Conditions.
Seller Representation: Each Seller represents and warrants it is NOT a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as such terms are defined by the Foreign Investment in Real Property Tax Act (“FIRPTA”), and it is agreed the Seller shall not be required, whether through escrow or otherwise, to provide any affidavit or other documentation in support of such representation and warranty in connection with FIRPTA concerns.
Supplemental Terms and Conditions: Each Seller reserves the right to establish supplemental Terms and Conditions (“Supplemental Terms and Conditions”) applicable to certain aspects of the auction and auction- related sale of such Seller’s Properties. As to auctions, bids, offers and auction-related sales to which such Supplemental Terms and Conditions apply, should there be any difference or conflict between the provisions of these Terms and Conditions and such other Supplemental Terms and Conditions, as to such areas of differences or conflicts the Supplemental Terms and Conditions shall apply and take precedence. In all other areas, these Terms and Conditions shall control. Any Supplemental Terms and Conditions shall be published prior to auctions to which such Supplemental Terms and Conditions apply.
Neither Seller(s), Seller’s Broker(s) nor Auctioneer makes any representation or warranty as to the accuracy or completeness of any information contained online at the Hudson & Marshall Auction website, in any promotional brochure, or as otherwise made available by Seller(s), Seller’s Broker(s) or Auctioneer with respect to any Property or otherwise. All Customers, prior to placing any bid on a Property are encouraged to
own due diligence and investigation and analysis of all matters relating to Properties on which they intend to submit bids.
No warranty or representation is made as to the adequacy of the H&M Online’s website or any software, system or product used in connection therewith, and Seller and Auctioneer shall in no wise be liable for any failure of such site, software, system or product, including, but not limited to, any failure of performance, error, omission, service interruption, defect, delay in operation of transmission, computer virus, or line failure. It is understood and agreed Seller, Seller’s Broker and Auctioneer shall have no liability for any loss, damages or injury, including but not limited to, special or consequential damages which result from the use of, or the inability to use, the website, the materials on the website, or the H&M Online bidding platform. Should this limitation be in conflict with governing law, each Customer agrees the total liability of Seller, Seller’s Broker and Auctioneer to Customer for all losses, damages and causes of action, whether in tort or contract, shall not exceed $500.
ALL PROPERTIES ARE PROVIDED ON AN AS IS, AS AVAILABLE, WITH ALL FAULTS AND LIMIITATIONS BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE REGARDING ANY PROPERTY. Upon the making of a bid (including any offer, counteroffer, or counter-counteroffer as herein described) on a particular Property, a Bidder is deemed to represent, warrant and agree that: (a) it has conducted such investigation and analysis of the particular Property as the Bidder considers necessary and appropriate; (b) it is familiar with the physical and legal condition of the Property; (c) the Seller, the Seller’s Broker and Auctioneer have made no representation or warranty regarding the physical condition, operation, legal condition or any other matter or thing affecting or related to the particular Property; (d) in making its bid it is not relying on any oral or written information, representation, warranty, promise or guaranty, whatsoever, made to the Bidder, expressed or implied, made by the Seller, the Seller’s Broker, Auctioneer, or any affiliate, agent, officer, employee or representative of any of them with respect to the particular Property; and (e) it has determined to make its bid after having made and relied solely on its own independent investigation, inspection, analysis, appraisal and evaluation of the particular Property, including all physical components and improvements, and all environmental, topographic, and legal aspects, or to the extent access to such Property was not available or was otherwise limited, has taken such fact into account in determining its bid for such Property.
It is understood and agreed any information, description and/or documents provided by/through the H&M Online’s website are for the convenience of the Customer, and no warranty or representation regarding their accuracy or completeness is made. Seller(s), Seller’s Broker(s), and Auctioneer have made no independent investigation or verification of such information, and make no representations as to the accuracy or completeness of such information. Without limiting the foregoing, the Seller, the Seller’s Broker, and Auctioneer are not obligated to disclose to any Bidder, and shall have no liability for its failure to disclose to any Bidder, any information known to them relating to any Property, except as may be required by law.
ALL PROPERTIES WILL BE SOLD AS IS, WHERE IS, AS AVAILABLE, AND WITH ALL FAULTS AND LIMITATIONS (as may be more particularly described in the Purchase Agreement).
ALL BIDDERS ACKNOWLEDGE AND AGREE THAT SELLER, SELLER’S BROKER AND AUCTIONEER HAVE NOT MADE, DO NOT MAKE, BUT RATHER SPECIFICALLY NEGATE AND DISCLAIM ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, CONCERNING OR WITH RESPECT TO THE PROPERTIES OR ANY OF THEM.
EACH CUSTOMER/BIDDER/WINNING BIDDER AND ANYONE CLAIMING BY, THROUGH OR UNDER THE SAME HEREBY GENERALLY, FULLY AND IRREVOCABLY RELEASES SELLERS, SELLER’S BROKERS AND AUCTIONEER, THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS AND AGENTS (“REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT IT/HE/SHE/THEY MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST ANY SELLER, ANY SELLER’S BROKER, AUCTIONEER AND THEIR REPRESENTATIVES FOR ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF
ACTION ARISING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING THE PROPERTIES OR ANY OF THEM. EACH CUSTOMER/BIDDER/WINNING BIDDER HEREBY WAIVES THE PROTECTIVE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDIT0R 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.” (SHOULD CALIFORNIA LAW, FOR ANY REASON, BE DETERMINED BY A COURT OF COMPETENT JURISDICTION NO T TO APPLY, THEN SUCH RELEASE SHALL, NONETHLESS, BE FULLY EFFECTIVE, AND THE LANGUAGE OF CALIFORNIA CIVIL CODE SECTION 1542 APPLICABLE.)
PRIOR TO THE MAKING OF A BID, IT IS THE RESPONSIBILITY OF THE CUSTOMER/BIDDER AND REPRESENTED CUSTOMER TO INSPECT, INVESTIGATE, RESEARCH AND ANALYZE EACH PROPERTY ON WHICH IT INTENDS TO BID OR HAVE BID MADE IN ITS BEHALF, AND THERBY TO SATISFY ITSELF AS TO THE FITNESS AND DESIRABILITY OF A RESPECTIVE PROPERTY. THE CUSTOMER/BIDDER/REPRESENTED CUSTOMER MAY WISH TO CONSULT WITH A LICENSED REAL ESTATE BROKER, CONTRACTOR, ATTORNEY, FINANCIAL OR TAX ADVISOR OR OTHER PROFESSIONAL IN CONNECTION WITH ANY REO PROPERTY AND PRIOR TO MAKING OR HAVING MADE ANY BID.
ALL PROPERTY SALES ARE SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT.
NO PROPERTY SALE WILL BE CONTINGENT UPON INSPECTION OF THE SUBJECT PROPERTY FOLLOWING THE CLOSE OF THE SUBJECT AUCTION.
THE MATERIALS IN THE WEBSITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE UNDER GOVERNING LAW.
AUCTIONEER DISCLAIMS ALL WARRANTIES INCLUDING THOSE OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. AUCTIONEER DOES NOT WARRANT THAT H&M ONLINES WEBSITE FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THE HARDWARE SUPPORTING SUCH SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS.
THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
In addition to the hard copy of this document to be signed by Customer, each time Customer registers for and places bids on the H&M Onlines website, Customer/Bidder/Winning Bidder reiterates its understanding of a nd agreement to these Terms and Conditions, as they may from time to time be updated, amended, modified and/or supplemented. Customer acknowledges such signatures and activities as being binding indicia of acceptance of these Terms and Conditions by Customer/Bidder/Winning Bidder. Customer/Bidder/Winning Bidder acknowledges its website registration and auction activity shall be binding and enforceable pursuant to 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 applicable state laws.
You will receive an email confirmation and an H&M team member will contact you to confirm offer details.
You will receive an email after an H&M team member has reviewed your request.