Auction Terms and Conditions
Auctions are conducted on behalf of sellers (each, a “Seller”) of real property, secured note(s) or other real estate assets (each, an “Asset”, and, if more than one, the “Assets”) and may be facilitated by a listing broker engaged by Seller (a “Seller’s Broker”) and/or a cooperating broker engaged by a Bidder (as hereinafter defined) (a “Bidder’s Broker”, and when referring to either a Seller’s Broker or a Bidder’s Broker, a “Broker”). Each prospective buyer who participates in any Auction shall be referred to herein as a “Bidder”. The terms “CREXi”, “Seller”, “Broker” and “Bidder” shall also refer to the respective principals, shareholders, members, managers, officers, employees, agents and affiliates of each. The “Winning Bidder” is the Bidder that (a) submits the highest net bid that is accepted by the Seller; (b) deposits a non-refundable Earnest Money Deposit (as hereinafter defined); and (c) submits the executed Purchase Documents (as hereinafter defined). As used in these Terms, each bid submitted in any Auction is a “Bid”.
CREXi provides its Auction platform solely as a service to the Seller or Broker that engaged CREXi for the use of such Auction platform, and is not acting as an agent for any Seller, Bidder, Broker or other party in any capacity. By listing an Asset for Auction, registering for an Auction, making a Participation Deposit (as defined herein), representing a Seller or Bidder in connection with an Auction, or submitting a Bid in an Auction through the CREXi website at www.crexi.com (the “Website”), each Seller, Bidder and Broker acknowledges having read and accepted the General Terms and these Auction Terms and shall be deemed to have read and accepted any additional terms and conditions posted on the Asset’s detail page on the Website (the “Asset Page”) at the time the Bid was submitted.
1. REGISTRATION PROCESS
Bidders must establish a CREXi account in order to place a Bid in any Auction. The registration process is a three-step process that includes the Bidder (i) submitting contact and background information for Bidder in accordance with CREXi’s requirements (which may, at CREXi’s or Seller election, be provided by populating the Purchase Documents with such information), (ii) proposing a bid limit for each Auction (the “Proposed Bid Limit”) (which Proposed Bid Limit CREXi may approve or reject in its sole discretion, but which approval or rejection shall be based upon the Proof of Funds submitted pursuant to item (iii) below; provided, however, that only liquid funds readily available to each Bidder will be considered by CREXi in its approval or rejection of the Proposed Bid Limit, and further provided that CREXi may, in its sole discretion, consider different or additional factors in its approval or rejection of the Bidder’s Proposed Bid Limit), (iii) providing CREXi with proof of readily available funds up to such Bidder's Proposed Bid Limit (the “Proof of Funds”), and (iv) making a participation deposit via wire transfer or credit card to secure compliance with these Terms (the “Participation Deposit”).
Once submitted, much of the foregoing information requires verification by CREXi and/or Seller, so registration should be completed at the earliest possible time, and before the bidding window opens. CREXi may modify or waive any of the foregoing participation requirements or may impose additional participation requirements for certain Assets or Bidders, each in its sole discretion or at the request of a Seller.
The Proof of Funds should be emailed to compliance@CREXi.com. CREXi may share any information it receives related to Bidder’s Proof of Funds, including, without limitation, bank statements or other financial records and information, with Seller or Seller’s Broker for review. Based on the feedback from the Seller and Seller’s Broker, CREXi will either approve Bidder or request additional Proof of Funds. Once a Bidder’s Proof of Funds has been approved, such Bidder will receive its actual bid limit (the “Bid Limit”) by email notification, together with the amount of the Participation Deposit and wire instructions for depositing the same. Thereafter, a Bidder may request an increase in its Bid Limit by submitting proof of additional funds up to such requested increase to the Bid Limit, and the process for consideration of such request shall be as outlined above.
The Winning Bidder's Participation Deposit will be applied towards the required Earnest Money Deposit. Except as otherwise set forth herein, all Participation Deposits from Bidders other than the Winning Bidder will be released after the Auction. Participation Deposits may be held by CREXi or a third party escrow agent upon notice to the Bidders. If the Participation Deposit is held by a third party escrow agent, the Bidder may be required to execute a separate escrow agreement by such third party escrow agent.
CREXi permits Bidders to register for one or multiple Assets in an Auction, subject to any restrictions or additional requirements set forth on an Asset Page.
2. PURCHASE DOCUMENTS
Purchase Documents. Prior to submitting a Bid, Bidders must review the Purchase and Sale Agreement, any applicable addenda, Seller's disclosure documentation, and all other transaction documents (collectively, the “Purchase Documents”), which can be accessed on the applicable Asset Page. All Bids must be based on the posted Purchase Documents, which Purchase Documents are non-negotiable.
3. DUE DILIGENCE
Due Diligence. It is each Bidder's responsibility to conduct its own due diligence and investigate all matters relating to each Asset that Bidder is interested in purchasing, including, without limitation, legal matters, physical condition and attributes, environmental matters, economic matters, encumbrances, and all other aspects. Bidder must coordinate any physical inspections of an Asset with Seller’s Broker, and assumes all risks associated with any such inspection. In some circumstances, Seller may be unwilling or unable to provide physical access for inspections, and Bidders must submit Bids accordingly and at their own risk. All Bids should be based solely on Bidder's independent due diligence and any information contained in the Purchase Documents, and by submitting a Bid, Bidder acknowledges that its Bid is based solely on its independent due diligence and review of the Purchase Documents, and not on any other information or documentation provided by CREXi, Seller or Seller’s Broker.
All information provided on an Asset Page or otherwise on the Website with respect to an Asset has been gathered from a variety of sources and has not been independently verified by CREXi. CREXI MAKES NO REPRESENTATIONS WHATSOEVER ABOUT THE ACCURACY OR COMPLETENESS OF ANY ASSET INFORMATION OR ANY ASSET PAGE. Bidders are encouraged to consult with a licensed real estate broker, contractor, attorney, financial advisor, tax advisor, and/or other relevant professionals.
Bidder is responsible for all liability, damages and costs directly or indirectly arising from Bidder's inspection, visit, or investigation of the Asset. Bidder agrees to indemnify, defend and hold harmless Seller, Seller’s Broker and CREXi from any such liability, damages and/or costs, and to maintain all applicable policies of insurance insuring over such liability, damages and/or costs.
Bidder shall not contact property managers or any tenants with respect to any Asset. If an Asset is a mortgage note or mezzanine note, Bidder shall not (i) contact the owner of the real property securing such mortgage note or mezzanine note (“Collateral”), (ii) visit the Collateral, or (iii) make contact with any of the parties providing services to the Collateral including, without limitation, any receivers. All Bids should be based solely on Bidder’s independent inspections and Purchase Documents. Bidder must submit any Bid(s) at his, her or its own risk.
Irrevocability of Bids. All Bids submitted during any Auction are irrevocable, except where a Bid withdrawal option is expressly made available to Bidders through the Website.
Signing Purchase Documents. The final Purchase Documents will be emailed to Winning Bidder (using the email address associated with Winning Bidder's CREXi account) for electronic signature via DocuSign. Winning Bidder must sign the Purchase Documents within two hours after they are sent to Winning Bidder (unless a longer timeframe is specified in writing by CREXi), time being of the essence. If Winning Bidder fails to timely sign the Purchase Documents. Winning Bidder shall be deemed in default of these Terms, and Seller may (i) reject Winning Bidder's Bid, in which event the Participation Deposit shall immediately and automatically be released to CREXi, (ii) pursue claims against Winning Bidder for specific performance, and (iii) pursue all other remedies available at law or in equity. Seller is an express, intended third party beneficiary of the foregoing.
Payment of Earnest Money Deposit. The Purchase Documents for each Asset require Winning Bidder to pay a deposit (the “Earnest Money Deposit”) to the escrow/closing agent. The amount of the Earnest Money Deposit is specified in the Purchase Documents or on the Asset Page for each Asset. Unless otherwise specified in the Purchase Documents, the non-refundable Earnest Money Deposit must be received on or before 5:00 p.m. in the time zone in which the Asset is located on the first business day following the close of the Auction, time being of the essence. If the Earnest Money Deposit is not timely received, CREXi or Seller may declare Winning Bidder to be in default of these Terms, in which event the Participation Deposit shall immediately and automatically be released to Seller.
Entity Buyers. Winning Bidders wanting to take title in the name of an entity (not as an individual) may be required to provide CREXi, Seller and/or the escrow/closing agent additional documentation prior to closing, such as entity formation documents and resolutions authorizing the submission of the Bid and the purchase of the applicable Asset.
Reserve Price. All Assets in an Auction have a minimum selling price established by Seller ("Reserve Price”). Seller may accept a bid that is below the Reserve Price in its sole and absolute discretion.
Auction Time Extension. CREXi may extend the time for bidding on any Asset in its sole discretion in order to allow for additional bids.
Subject to Confirmation. Seller may designate certain Bids as "subject to confirmation" in its sole and absolute discretion, in which case Winning Bidder's purchase is subject to, and contingent upon, Seller approving the purchase in its sole and absolute discretion within the time period set forth in the Purchase Documents. Winning Bidder will receive a refund of monies deposited if Seller chooses not to approve the purchase.
6. BROKER/AGENT PARTICIPATION
Certain Auctions may offer a commission or referral fee for a Bidder’s Broker, in which event the same will be disclosed on the applicable Asset Page, so long as (i) the Bidder’s Broker has registered with CREXi as a Bidder’s Broker, (ii) the Bidder’s Broker is identified by the Bidder with whom it is associated, and (iii) the Bidder represented by such Bidder’s Broker actually purchases the Asset, if the Seller accepts the Bid from such Bidder. A Bidder’s Broker may only be entitled to a commission if such Bidder’s Broker meets the following conditions: (i) the Bidder’s Broker agrees to these Auction Terms and all other terms and conditions posted on the applicable Asset Page, and (ii) the Bidder’s Broker is properly licensed in the state(s) in which the applicable Asset is located.
For certain Auctions, a registered Bidder’s Broker may submit Bids on behalf of a client identified to CREXi prior to Bid submission. By submitting a Bid on behalf of a client, the Bidder’s Broker (i) represents and warrants that the Bidder’s Broker has received all client authorizations and satisfied all legal requirements necessary to submit Bids on the client's behalf, (ii) acknowledges and agrees that any Bid submitted will be binding upon the Bidder’s Broker and the client identified at registration to the same extent as if the client had submitted the Bid, and (iii) agrees to indemnify and hold harmless CREXi from any and all liability, damages and/or costs resulting, whether directly or indirectly, from a breach of these representations or warranties.
7. GENERAL INFORMATION
Seller and CREXi reserve the right to deny, limit, or impose conditions on submitting Bids and/or access to the Website or any Auction at any time, for any reason (including, without limitation, Bidder's solvency, credit history, transaction history, and Participation Deposit amounts).
CREXi, at its discretion or at the request of Seller, may postpone or cancel an Auction, remove any Asset from an Auction, or reject any or all Bids. CREXi may rearrange the order or sequence of the Asset in an Auction and modify these Terms by posting notice of such modification on the Asset Page.
CREXi, Sellers and/or their agents may issue press releases and other public communications regarding any Auction and/or any Asset offered or sold during at an Auction.
These Auction Terms and the conduct of each Auction shall be governed by the laws of the state in which the Assets or Collateral are located.
CREXi is authorized to place a bid on a Seller's behalf during an Auction. No CREXi bid will be disclosed to Bidders unless required by applicable law, in which case such CREXi bid shall be disclosed in accordance with such law(s). CREXi will not place a bid that meets Seller's Reserve Price and will stop bidding once such Reserve Price has been met. CREXi is not responsible for failing to place any bid, nor, in the event that CREXi places a bid, is CREXi responsible for any errors that may or do occur during the placement of any such bid.
No information on any website, or in any brochure, email or postcard, nor any information available regarding one or more Assets shall constitute an offer to sell or a solicitation of any offer to buy any of the Assets. Bids submitted or solicitations made during any Auction are void where prohibited by law. If any sale would require registration or qualification under applicable state securities laws, no such sale may be consummated until such applicable requirements have been met.
As between Seller and Bidder, no obligation to sell shall be binding on Seller unless and until the Purchase Documents have been signed and delivered by Seller and the Earnest Money Deposit has been received as required hereunder. After the Purchase Documents have been fully signed, the Purchase Documents shall govern the relationship between Winning Bidder and Seller.
8. PLATFORM FEE
Winning Bidder may be required to pay a “Platform Fee” at closing, as stated on an Asset Page. Any required Platform Fee is in addition to the Winning Bidder’s Bid and is due at closing along with the amount of the Winning Bidder’s Bid for the Asset (as provided in the Purchase Documents).
9. DISCLAIMERS; BIDDER REPRESENTATIONS; CANCELLATION; LIQUIDATED DAMAGES
CREXi MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER. WHETHER EXPRESS OR IMPLIED. WITH RESPECT TO ANY ASSET OR THE SUFFICIENCY (WHETHER LEGAL OR OTHERWISE) OR TAX CONSEQUENCES OF ANY DOCUMENT OR INFORMATION PROVIDED BY CREXi, A SELLER OR A BROKER. EACH BIDDER HEREBY RELEASES CREXi AND ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS AND AGENTS (“REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT ANY SUCH BIDDER MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST CREXi OR ANY OF ITS REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING ANY ASSET OR THE DOCUMENTS OR INFORMATION USED IN EVALUATING OR ACQUIRING ANY ASSET. THIS RELEASE INCLUDES (BUT IS NOT LIMITED TO) CLAIMS OF WHICH BIDDER IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO EXIST IN BIDDER'S FAVOR WHICH, IF KNOWN BY BIDDER, WOULD MATERIALLY AFFECT BIDDER'S RELEASE OF CREXi. EACH BIDDER SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND OTHER SUBSTANTIALLY SIMILAR APPLICABLE STATE STATUTES) 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.
Each Bidder represents and warrants that (a) it is not located in a country embargoed by the United States of America; (b) neither it, nor its affiliates, 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: and (c) it (i) is a sophisticated purchaser or real property or secured notes, as applicable, (ii) is capable of evaluating the merits and risks of purchasing real property or secured notes, as applicable, on the Website, and (iii) understands and is able to bear the economic risks of purchasing real property or secured notes, as applicable, on the Website, including, without limitation, a total loss of investment and/or the risk that Bidder may be required to hold such Property for an indefinite period of time.
CANCELLATION. IF WINNING BIDDER BREACHES THESE TERMS, WINNING BIDDER'S BID MAY BE REJECTED BY CREXi AND/OR SELLER, THE ASSET MAY BE IMMEDIATELY SOLD TO ANOTHER BIDDER OR PLACED IN ANOTHER AUCTION, AND WINNING BIDDER SHALL AUTOMATICALLY FORFEIT ITS PARTICIPATION DEPOSIT AS LIQUIDATED DAMAGES WITHOUT NOTICE OF SUCH FORFEITURE TO WINNING BIDDER. WINNING BIDDER ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM WINNING BIDDER’S BREACH OF THESE TERMS WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE, AND THAT THE LIQUIDATED DAMAGES AMOUNT SET FORTH HEREIN IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO CREXi AND IT IS NOT A PENALTY OR FORFEITURE.