BIDDER REGISTRATION - AUCTION TERMS & CONDITIONS
Property: 3488 Paena Loop, Lihue, HI 96766
Final Bidding Day: WEDNESDAY, NOVEMBER 6th at 11am HST
Auction Site: Online www.malamaauctions.com
Registration Deadline: Prior to Final Bidding Day and auction time.
Buyer’s Premium: 10% of Winning Bid (“High Bid”)
Total Purchase Price: Winning Bid + Buyer’s Premium
Buyer’s Deposit: $75,000.00. Proof of funds due by November 6th 2019.
Malama Auctions & Realty LLC., herein referred to as Malama Auctions, will present the above-listed Property for sale by Auction (the "Auction") on behalf of the Sellers and Oceanfront Sotheby’s International Realty. Oceanfront Sotheby’s International Realty will coordinate/conduct all real estate brokerage activity and Malama Auctions will coordinate/conduct all bidding activity.
The auction process is a public sale at which the above-listed property will be sold to the highest bidder, subject to the seller’s Reserve Price, if any. A reserve price is the minimum price at which the Seller agrees for the property to be sold, and may be disclosed to the public or may remain confidential at the Seller’s discretion.
Bidding will be conducted worldwide online. All bidding is open to the public without regard to race, color, gender, religion, familial status, handicap or national origin.
If you are the highest bidder acknowledged by Malama Auctions at the end of the Auction, you will be under contract to become the Buyer.
By registering and participating in this Auction, you represent, warrant and covenant that any bid you make constitutes an irrevocable offer to purchase the Property for the Total Purchase Price which is defined as your High Bid plus the Buyer’s Premium.
THIS IS A CASH TRANSACTION WITH NO CONTINGENCIES, including, without limitation, a contingency for financing or inspections. Buyer may obtain a loan but no contingencies regarding such loan or extension of time to obtain a loan shall be granted.
TOTAL PURCHASE PRICE
Total Purchase Price is the sum of your Winning Bid, plus a 10% Buyer’s Premium.
A ten percent (10%) Buyer’s Premium on the Winning Bid shall be paid by the Buyer in addition to the Winning Bid amount.
Your Winning Bid: $3,000,000
Your Buyer’s Premium (10%): $300,000
Total Purchase Price: $3,300,000
The Buyer’s Premium is the commission and fee that Oceanfront Sotheby’s International Realty (real estate services commission) and Malama Auctions (auction services fee) charge to bidders for bringing the Property to auction.
BIDDER REGISTRATION, PURCHASE CONTRACT & BUYERS DEPOSIT
If you are the Winning Bidder, you are required to immediately execute the Purchase Contract. Bids will only be accepted from qualified bidders. In order to be qualified, proof of funds to be deposited must be provided. Valid proof of funds include, Cashiers Check written to yourself, bank letter of guarantee, guaranteed fund from any financing institution, or credit card deposit on file.
Bidder agrees to have liquid funds available in the amount of $75,000.00 which will need to be transferred into escrow at the completion of auction and confirmed by end of business day, this will serve as a non refundable deposit.
Furthermore 10% of final purchase price will be due within two business days. Unless other arrangements have been made all of these will be binding.
Once signed, the Purchase Contract supersedes any and all other documents or information and serves as the governing document for the sale of the Property. You are encouraged to review the Purchase Contract prior to bidding. You may wish to consult with a licensed real estate broker, attorney or contractor prior to making any bid.
PURCHASE NOW PRICE
If a Registered Bidder elects "Purchase Now Price" (all-inclusive of Buyers Premium) they are the Winning Bidder and auction stops. Auction Purchase Contract will be used. The Purchase Now Price option expires 1 business day before Final Bidding Day.
ESCROW CLOSING DATE
The escrow closing date shall be on or before 30 days after final Auction Date. (Refer to the Purchase Contract.) If closing date falls on a recognized holiday, closing shall be the next business day. In certain cases, the Seller may grant extensions of the Closing Date pursuant to the Purchase Contract or as otherwise negotiated between Seller and Buyer, at Seller's sole discretion.
JIM O’CONNER ACTING AS SELLER’S AGENT
JIM O’CONNER is a Seller’s Agent in the sale of said property. As a Seller’s Agent we owe the highest duties to the Seller, including confidentiality, loyalty, and due care and diligence. As a Bidder you may also choose to have real estate agent representation in the purchase of the Auction Property. Any representing real estate agent must register by November 6th 2019 by submitting a completed Real Estate Registration Form. In the absence of an agency relationship with JIM O’CONNER or a third party, you will be treated as a Customer. As a customer to the purchase of the property JIM O’CONNER must and will disclose to potential buyers all material facts actually known by JIM O’CONNER about the property.
PROPERTY INSPECTION/DUE DILIGENCE
The Property is being sold in "AS IS, WHERE IS, WITH ALL FAULTS" condition with no expressed or implied guarantees or warranties whatsoever. It is your responsibility as a Bidder to perform any inspections you deem pertinent to the purchase of the Property to your satisfaction prior to bidding, including but not limited to review of posted inspections, disclosures, and/or a personal on-site inspection. You are recommended to independently verify all information you deem important. The property is scheduled to have one or more open houses, and/or private showings upon request. Oceanfront Sotheby’s International Realty and Malama Auctions assume no liability for errors or omissions in these disclosures or any other property listings or advertising, promotional or publicity statements and materials.
By bidding at the Auction, you represent, warrant and agree that you have inspected the Property to your satisfaction and that you have made your bid after having relied solely upon your own independent investigation and/or analysis of third parties’ inspection, appraisal and evaluation of the Property and the facts and circumstances related thereto.
In the course of your inspections, if the Property is/are damaged by you or anyone you have inspect the property, you will repair or have repaired any and all related damage.
ACCURACY OF INFORMATION PROVIDED
You acknowledge that any information provided or to be provided by or on behalf of the Sellers with respect to the Property including, without limitation, all information contained on-line at the Auction website, in Auction advertising, in the Auction brochure and in the Property Information Packages being made available to Bidder by Seller and Oceanfront Sotheby’s International Realty and/or Malama Auctions was obtained from Seller and/or Seller's representatives/agents, and Oceanfront Sotheby’s International Realty and Malama Auctions make no representations as to the accuracy or completeness of such information.
NON-RESPONSIBILITY FOR POOR CONNECTIONS
Our goal is to encourage online bidding, however neither Malama Auctions nor Oceanfront Sotheby’s International Realty will be held responsible for any errors or omissions in connection with online, telephone or any other type of absentee or electronically-transmitted bids, including, without limitation, poor Internet or connections of any other type and/or reception, dropped calls, recording failures, busy signals or missed calls. Furthermore, Malama Auctions and Oceanfront Sotheby’s International Realty do not warrant that the functions, features or content contained in the Internet bidding website, including any third-party software, products, or other materials used in connection with Internet bidding, will be timely, secure, uninterrupted or error-free, or that defects will be corrected before the end of the auction.
In the event of any dispute between bidders, or in the event of doubt on the part of Malama Auctions as to the validity of any bid, Malama Auctions will have the final discretion to determine the successful Bidder, cancel the Auction, or to re-offer the subject Property for auction. If any dispute arises after the Auction, the Auction record of Malama Auctions shall be conclusive. Malama Auctions reserve the right to reject any bid in their sole discretion.
ORDER OF AUCTION, BIDDING INCREMENTS, VERBAL ANNOUNCEMENTS
The auction method, order of Auction, and bidding increments shall be at the sole discretion of Malama Auctions, including, without limitation, the right to freeze and unfreeze or pause and resume bidding during the Auction.
Malama Auctions reserve the right to reject any bid that is only a minimal increase over the preceding bid, or that Malama Auctions believes was made illegally or in bad faith. All decisions of Malama Auctions are final as to methods of bidding, cancellation or any other matters that may arise before, during or after the Auction.Verbal announcements made at the Auction will take precedence over all printed material or other previously made statements. Malama Auctions reserve the right to waive any previously announced requirements.
Collusion between bidders is prohibited by the Federal Anti-Trust Laws. If Malama Auctions perceive attempted collusion, they may cancel the Auction.
Malama Auctions reserve the right to deny any person admittance to the Auction or expel anyone who they believe may interfere with the Auction in any way.
Oceanfront Sotheby’s International Realty and/or Malama Auctions reserve the right to cancel, postpone or withdraw the property before or up to the start of the auction.
Should the Auction, be postponed, the Opening Bid shall remain in place for a period of time not to exceed 45 days from Auction Date. If the Auction is postponed, and the rescheduled date more than 45 days from Auction Date, Bidder can make a new Opening Bid. A postponed auction may be subject to new Auction Terms and Conditions for the rescheduled auction.
Each attendee of the Auction shall be deemed to have consented to the issuance of press releases and other public communications by Seller, Oceanfront Sotheby’s International Realty or their agents regarding the Auction and the Properties offered or sold at the Auction. By executing these Auction Terms & Conditions each attendee of the Auction authorizes and consents to the recording of such attendee's participation and appearance on video tape, audio tape, film, photograph or any other medium and the exhibition or distribution of such recording without restrictions or limitation for any promotional purpose which Oceanfront Sotheby’s International Realty and those acting pursuant to its authority, deem appropriate. Bidder hereby releases and discharges Oceanfront Sotheby’s International Realty, its officers, employees and agents, from any and all claims and demands arising out of or in connection with the use of such photographs, film or tape, including but not limited to any claims for defamation or invasion of privacy. (Please contact us prior to the Auction beginning if this is of concern to you.)
If any provision of these Auction Terms & Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible to affect the intent of these Terms, and the remainder of this Agreement shall continue in full force and effect.
The respective rights and obligations of the parties with respect to these Auction Terms & Conditions and the conduct of the Auction shall be governed and interpreted by the laws of Hawaii. By bidding at an auction, whether present in person, or by agent, by written bid, telephone bid, internet bid, or other means, the purchaser shall be deemed to have consented to the jurisdiction of the state courts, and the federal courts sitting in the State of Hawaii.
Without limiting any other provision of these auction terms & conditions or the contract, all bidders acknowledge and agree that they are bidding for and, when the high bidder is confirmed by the seller, will acquire the property, including the improvements constructed on the property and all appliances and building systems, in its state and condition as of auction day, with all defects, both patent and latent, and with all faults, whether known or unknown, presently existing or that may hereafter arise.
All prospective bidders acknowledge and agree that Oceanfront Sotheby’s International Realty has not made, does not make and specifically negates and disclaims any representation, warranty, promise, covenant, agreement or guaranty of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to the property, including without limitation: (a) the value, nature, quality or condition of the property, including, without limitation, the water, soil and geology; (b) the income to be derived from the property, if any; (c) the suitability of the property for any and all purposes, activities and uses which bidder may conduct thereon; (d) the compliance of or by the property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body; (e) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the property; (f) the manner or quality of the construction or materials, if any, incorporated into the property; (g) the manner, quality, state of repair or lack of repair of the property; (h) the existence of any view from the property or that any existing view will not be obstructed in the future; (i) any other matter with respect to the property, (j) the structural integrity of any improvements on the property, (k) the conformity of the improvements to any plans or specifications for the property that may be provided to bidder, (l) the conformity of the property to applicable zoning or building code requirements, (m) the existence of soil instability, past soil repairs, susceptibility to landslides, sufficiency of under-shoring, sufficiency of drainage, or any other matter affecting the stability or integrity of the land or any buildings or improvements situated thereon, (n) whether the property is located in a special studies zone under the public resources code or a seismic hazards zone or a state fire responsibility area, or a special flood hazard zone or (o) the presence of termites or other pests and any damage to the property and/or its improvements that may have occurred as a result.
Bidder acknowledges that the property and its improvements may not be in compliance with applicable zoning, building, health or other laws or codes, and further acknowledges that Oceanfront Sotheby’s International Realty, Malama Auctions nor any of their respective representatives or agents have occupied the property and the property may not be in habitable condition. All prospective bidders further acknowledge and agree that, without limitation, Oceanfront Sotheby’s International Realty and Malama Auctions have not made, do not make, and specifically disclaim any representations regarding compliance with the Americans with Disabilities Act or with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements, as defined by the U.S. Environmental Protection Agency regulations or the disposal or existence, in or on the properties, of any hazardous substance, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder.
Each prospective bidder and anyone claiming by, through or under the same hereby fully and irrevocably release sellers, Oceanfront Sotheby’s International Realty, Malama Auctions and their respective affiliates, employees, officers, directors, representatives, attorneys and agents, from any and all claims that he/she/it or they may now have or hereafter acquire against sellers and/or Oceanfront Sotheby’s International Realty and/or Malama Auctions and/or their respective affiliates, employees, officers, directors, representatives, attorneys and agents, for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or relating to the conduct of the auction and/or the condition of the property, including but not limited to any construction defects, errors, omissions or other conditions, including but not limited to environmental matters, affecting the property, or any portion thereof. This release includes claims of which prospective bidder is presently unaware or does not presently suspect to exist in his/her/its favor which, if known by prospective bidder, would materially affect prospective bidder's release of sellers, Oceanfront Sotheby’s International Realty and Malama Auctions. Each prospective bidder should consider these matters when registering as a bidder and before placing bids.
Bidder acknowledges that this release and disclaimer is intended to be very broad and bidder expressly waives and relinquishes any rights or benefits it may have under any state or federal statutes or common law principles designed to invalidate releases of unknown or unsuspected claims.
AUTHORITY & CAPACITY
By signing this contract, you guaranty and warrant that you have authority to bid, to enter into this Contract and if the winning bidder the Purchase Contract and that you have the capacity to close the transaction pursuant to the purchase contract.
These Auction Terms & Conditions, together with any additional terms and conditions specific to a particular auction (which are incorporated herein by reference and can be found through one or more links on the detail page for the auction in question), constitute the entire agreement between Oceanfront Sotheby’s International Realty and Malama Auctions and Bidder regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter.
AUCTION. A public sale at which real estate is sold to the highest bidder, subject to the seller’s Reserve Price, if any.
RESERVE. A reserve price is the minimum price at which the Seller agrees for the property to be sold. The reserve price may be made known to the public or it may be confidential at the Seller’s discretion.
FINAL AUCTION DATE. The last day of the auction.
BIDDER. Anyone who has registered and made their Bidder’s Deposit and/or has been pre approve before the deadline, enabling them to bid in this auction.
BUYER. The bidder who is recognized by Malama Auctions and Oceanfront Sotheby’s International Realty on the final Auction Date as the winning bidder.
BUYER’S PREMIUM. A percentage of the winning bid, ten (10) percent.
HIGH BID. The highest bid acknowledged by Malama Auctions and Oceanfront Sotheby’s International Realty at the end of the Auction.
PURCHASE NOW PRICE (PNP). PNP is an all-inclusive purchase price (inclusive of Buyer’s Premium) a Registered Bidder can elect to bid and they will become the Winning Bidder and auction is over. Option expires 1 business days before Final Bidding Day.
HIGH BIDDER. The bidder placing the highest bid by the end of the Auction as recognized by Malama Auctions and Oceanfront Sotheby’s International Realty.
WINNING BID. Same as High Bid.
TOTAL PURCHASE PRICE. High Bid plus Buyer’s Premium.
PURCHASE CONTRACT. The real estate purchase and sale contract and any addendum required to be signed by Seller and Buyer.
BUYER’S DEPOSIT. $75,000.00 Buyer’s Deposit proof of funds due same day.
BY REGISTERING AND CLICKING ACCEPT YOU AGREE TO THE TERMS AND CONDITIONS OF THE REAL ESTATE AUCTION FOR:
3488 Paena Loop, Lihue, HI 96766