SEALED BID SALE. Pursuant to an order of the Superior Court of the State of California (the “Court”) dated March 16, 2022, NRC Realty Advisors of California, Inc. (“NRC”) has been retained to coordinate the offering and sale of 1948 Camden Avenue, San Jose, California 95124 (the “Property") on behalf of Niloufar Deckordi and Amir Shirazi (collectively, the “Seller”). The property is not subject to a Right of First Refusal (ROFR).
BID DEADLINE. NRC will set a bid deadline (the “Bid Deadline”) for this sale. Until that time, bids may be submitted at any time. Interested parties will be notified by email when the Bid Deadline is set.
TERMS AND CONDITIONS OF SEALED BID SALE
TERMS AND CONDITIONS. The offering and sale of the Property in this sealed bid sale are subject to these Terms and Conditions of Sealed Bid Sale (the “Terms and Conditions”). Prospective bidders are advised to carefully review the Terms and Conditions. Failure to comply either as a participant in the sale or in the preparation or submission of a sealed bid, may, in the discretion of the Seller or NRC with Seller’s consent, cause a sealed bid to be deemed non-conforming (a “Non-conforming Bid”) and disqualified from consideration. NRC and Seller reserve the right to amend, supplement or modify these Terms and Conditions from time to time, without consent from or notice to prospective bidders. In the event the Terms and Conditions conflict with a provision of the Purchase and Sale Agreement (“PSA”) the provision of the applicable PSA shall be controlling. The sale is subject to final approval of the Court.
REFERENCED MATERIALS. The Terms and Conditions are set forth in three places in the sealed bid sale materials; (i) on the NRC website at http://www.nrc.com/2203 (ii) in the Property Specific Package (the “PSP”) for the sale, and (iii) are incorporated by reference in the PSA.
FINANCIAL ABILITY. Each prospective bidder who intends to submit a sealed bid for the Property is required to fully complete, sign and return to NRC a financial prequalification form or corporate financial statement with their bid. A prequalification form is included with the Bid Package (as defined below) contained in the PSP. A request for additional financial information shall not be considered a modification of the Sealed Bid or otherwise create eligibility to revoke the Sealed Bid.
DUE DILIGENCE
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on the Property prior to bid submission. A PSA submitted as a sealed bid becomes immediately enforceable upon Seller’s execution and may be terminated only pursuant to the terms thereof. In the event a successful bidder defaults on its obligations under an enforceable PSA, Seller may have the right to retain such bidder’s Earnest Money Deposit (defined below).
PROPERTY SPECIFIC PACKAGE. A PSP for the Property will be available for download at http://www.nrc.com/2203 by mid-April 2022. The PSP contains, as available, property-specific physical, legal, environmental reports and financial due diligence information. A PSP may include, as applicable, tax bills, survey or site plan, title commitment, UST information and remediation reports.
PROPERTY INSPECTIONS. The Property may be inspected during normal business hours. UNDER NO CIRCUMSTANCES MAY BIDDERS ASK QUESTIONS OF STORE MANAGER OR STORE EMPLOYEES. BIDDERS VIOLATING THIS REQUIREMENT MAY BE DISQUALIFIED FROM BIDDING. The store manager and employees have been instructed to refer any questions from a bidder directly to NRC. All pre-bid inspections are limited to non-invasive investigations. Please call NRC at (800) 747-3342, ext. 2203 for further information.
SEALED BID SUBMISSION
BID DEADLINE. A sealed bid is required to be received by NRC as provided above by the Bid Deadline. A sealed bid received by NRC after the Bid Deadline is a Non-conforming Bid.
BID PACKAGE. The bid package (the “Bid Package”) for the Property contains bid submission instructions, the PSA to be completed, signed and submitted with the sealed bid, and a pre-qualification form or corporate financials to be submitted to NRC. The Bid Package for the Property is contained in the PSP. To obtain a Bid Package for the Property, a prospective bidder is required to order the PSP from NRC.
PURCHASE AND SALE AGREEMENT. A sealed bid for the Property is made on the PSA contained in the Bid Package. The PSA is required to be fully and correctly completed, without any modification and properly signed. A sealed bid received in any other format or on a PSA that is incomplete, incorrect or modified in any respect is a Non-conforming Bid. Instructions on how to complete the PSA in compliance with the Terms and Conditions are contained in the Bid Package.
BID DEPOSIT. A sealed bid is required to include an initial bid deposit (the “Bid Deposit”) equal to 2.5% of the bid price. The Bid Deposit is required to be made by cashier’s check or wire transfer to NRC Realty & Capital Advisors, LLC’s escrow account. A sealed bid that is submitted without a Bid Deposit that complies with this paragraph is a Non-conforming Bid. If a bid is not accepted by Seller, the Bid Deposit will be returned to the bidder subject to the terms outlined below.
NON-CONFORMING BIDS. A Non-Conforming Bid, while received after the Bid Deadline, shall be considered for acceptance if received before an Award of Bid or within twenty (20) business days, the irrevocable bid period, whichever comes first. However, NRC reserves the right, with Seller’s consent, to disqualify from consideration and reject any Non-Conforming Bid. After a Non-Conforming Bid is rejected, NRC will return the related Bid Deposit by certified mail within seven (7) business days after the later to occur of (i) the date of such rejection or (ii) the date that the related funds have cleared NRC’s escrow account.
SEALED BID EVALUATION AND AWARD
EVALUATION AND AWARD OF SEALED BID. NRC will present all sealed bids received by the Bid Deadline to Seller for consideration. Seller will review all sealed bids, other than rejected Non-conforming Bids. Seller may accept or reject sealed bids, in its sole and absolute discretion. Seller and NRC reserve the right to request and review additional financial information relating to a bidder and/or other information confirming a bidder’s ability to close a sale. All sales are final upon acceptance and execution by Seller of the related PSAs. Seller shall attempt to review all bids within seven (7) business days of the Bid Deadline to determine and reject any non-competitive bids ("Non-Competitive Bids"), after which initial bid deposits for the Non-Competitive Bids shall be returned to unsuccessful bidders.
BEST AND FINAL BIDS. Seller reserves the right to solicit a best and final offer (“BAFO”) for the Property. NRC shall notify bidders of Seller’s intent to solicit a BAFO by email. In that case, bidders will be given an opportunity to raise, but not lower or withdraw, their bids. If a bidder elects not to submit a BAFO, such bidder’s original bid amount remains in effect. If accepted by Seller, the BAFO will amend the purchase price of the PSA.
PROHIBITION ON WITHDRAWING SEALED BIDS. Both sealed bids and BAFOs, except for Non-Competitive Bids, are purchase offers that, pursuant to this paragraph, remain in effect for a period of twenty (20) business days following the Bid Deadline unless deemed non-competitive in which case the bidder will be notified and the Bid Deposit refunded within seven (7) days. Sealed bid and BAFO purchase offers during such periods are irrevocable and may not be withdrawn.
EFFECTIVE DATE OF AWARD OF BID. The effective date of the award of a sealed bid is the date on which Seller signs the related PSA, or otherwise as approved by the Court ("Award of Bid"). NRC will notify the successful bidder of award by email; however, the award is not legally binding or enforceable until the date on which Seller delivers a fully signed PSA to the successful bidder and approved by the Court.
ADDITIONAL EARNEST MONEY REQUIREMENT. Within two (2) business days after receiving written notice from NRC of Seller’s acceptance of the sealed bid, a successful bidder is required to deposit sufficient additional funds (the “Additional Bid Deposit”) that, when added to the initial Bid Deposit, equals 10% of the purchase price. The Additional Bid Deposit is required to be made by wire transfer of immediately available funds to NRC’s escrow account (wire instructions will be provided by NRC). The Bid Deposit, together with the Additional Bid Deposit, is collectively referred to herein as the “Earnest Money Deposit”. The Earnest Money Deposit will be held by NRC for the benefit of the parties and without obligation to invest funds.
SELLER’s RESERVATION OF RIGHTS. Seller, with approval by the Court, reserves the right, in its sole discretion, at any time and without giving reasons therefor, to decline any bid, set or postpone, extend, or cancel the Bid Deadline, or withdraw the Property from the sealed bid sale at any time without notice. Seller further reserves the right, in its sole discretion, without notifying any bidder, giving any bidder similar opportunity, or re-offering the Property, to negotiate the terms of a bid, to overlook minor inconsistencies or nonconformance in a bid, to extend any deadlines or to accept any bid for any reason, whether or not such bid is the highest purchase price. Seller also reserves the right to terminate, at any time, further participation in the process by any party or all parties, to modify any of the rules or procedures set forth herein or any other procedures without prior notice or assigning any reason therefor, to reject any or all proposals, or to terminate the process contemplated hereby. Seller reserves the right to take any action, whether in or out of the ordinary course of business, which Seller, in its sole discretion, deems necessary or prudent in the conduct of its business. Seller may require verification of funds available to close on offers before accepting any bid. The Terms and Conditions are subject to modification as may be required by the laws of the State of California.
PURCHASE AND SALE AGREEMENT TERMS
PURCHASE AND SALE AGREEMENT. The purchase of the Property will be subject and consummated pursuant to the provisions of the PSA. Certain PSA provisions have been summarized herein for the benefit of prospective bidders, including, without limitation, certain environmental terms. These summaries do not restate the PSA provisions and are not intended to be full, complete and accurate descriptions thereof. Accordingly, bidders may not rely on these summaries as enforceable provisions. The PSA is the sole agreement relating to rights, remedies and obligations of each party in connection with the purchase of the Property. NRC recommends that bidders consult with their attorneys prior to submitting their bid.
CLOSING DATE AND TRANSFER OF POSSESSION. The successful bidder will be required to close escrow within forty-five (45) days. Seller shall have the sole option of extending the closing date for as many as ninety (90) days if it finds it necessary. Transfer of possession will occur upon the escrow closing. The PSA provides that Seller will designate the title agent for the closing of the Property. In the event that Purchaser requests to use a different title company and Seller consents, Purchaser shall be required to pay to Seller an additional $10,000 at closing.
TRANSFER OF TITLE. The Property will be conveyed by special warranty deed with marketable title. The Seller will provide title free and clear of monetary liens, except non-delinquent real estate taxes, and subject to standard permitted exceptions outlined in the title commitment. The Purchaser will pay for title insurance coverage. Real estate taxes will be current to the date of closing. Except as may be stated in the paragraph below entitled “ENVIRONMENTAL MATTERS”, the Property will be conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” regarding any conditions affecting the Property, with no representations or warranties.
NO MORTGAGE CONTINGENCY. The PSA for the Property does not contain a mortgage contingency. In the event that the Purchaser is unable to secure purchase financing, the PSA may not be terminated on that basis.
LICENSES, PERMITS AND AUTHORIZATION. It is the Purchaser’s sole responsibility to obtain, at its expense, any licenses, permits and authorizations (collectively, “Licenses”) required to acquire, manage, develop, lease and/or operate the Property. Purchaser’s procurement of these items is not a condition to Closing. Please see the PSP for additional information.
ESTIMATED INVENTORY VALUE. Purchaser will purchase non-petroleum and petroleum inventory, as applicable, (the “Inventory”) located at the Property from Seller at closing. The purchase price for the Property does not include the Inventory items, and Inventory shall be paid for separately by Purchaser. Not less than seven (7) days prior to the closing date, NRC shall deliver by facsimile or e-mail to Purchaser an estimated value of the Inventory (the “Estimated Inventory Value”). Purchaser shall deposit with NRC one hundred ten percent (110%) of the Estimated Inventory Value at least five (5) days prior to the closing date by wire transfer of immediately available funds (the “Inventory Deposit”). Failure to make the Inventory Deposit as set forth herein shall be considered a default under the PSA and may result in the forfeiture of the Earnest Money Deposit, in Seller’s complete and sole discretion.
ACTUAL INVENTORY VALUE. A physical count of the Inventory on hand at the Property (the “Inventory Review”) shall be conducted by a third-party servicer designated by Seller at closing. Purchaser is required to purchase at closing the entire Inventory unless otherwise agreed by Seller. The cost of the Inventory Review shall be divided equally between the parties. On the day after closing, the third-party servicer will perform the Inventory Review and then calculate the purchase price of the Inventory as set forth in the PSA. Any difference between the Estimated Inventory Value and the final value of Inventory, as determined by the Inventory Review (the “Final Inventory Purchase Price”) may result in additional amounts due from Seller or Purchaser, as the case may be. The appropriate party must remit such additional amounts within two business days following final determination. See the PSA for specific details.
BROKER PARTICIPATION. A fee equal to one percent (1%) of the purchase price of the Property will be paid by NRC upon the closing of escrow of the sale pursuant to the PSA to the licensed broker whose registered prospect consummates the sale. Brokers must register their prospect(s) with NRC no less than three (3) days prior to the Bid Deadline by completing the Co-Op Broker registration in the form provided by NRC without modification, and email it to Dave Shand at dave.shand@nrc.com Attn: Sale 2203. All such Co-Op Broker registrations are not effective until accepted in writing by NRC and NRC shall have the authority to determine if any registration is accepted based upon the requirements of these Terms and Conditions and the Co-Op Broker registration document, in its sole judgment. No commissions will be paid on any Property to any broker participating as a principal in the purchase of the Property or who has a direct or indirect ownership interest in the Purchaser, and an affidavit may be required stating that the broker is acting solely as broker and not as a purchaser and has no direct or indirect ownership interest in Purchaser. NO OTHER FORM OR ORAL REGISTRATION IS PERMITTED.
DUAL AGENCY ACKNOWLEDGMENT, CONSENT AND WAIVER. NRC is acting as the marketing and sealed bid sale coordinator for Seller in connection with any offering or sale of the Property pursuant to these Terms and Conditions and in no event is NRC representing Purchaser as its agent in connection with any transaction contemplated or consummated in connection herewith. Notwithstanding the immediately preceding sentence, if it is determined that NRC is acting as an agent for Purchaser hereunder, Purchaser and all parties claiming by, through or under Purchaser shall hereby affirm and acknowledge that NRC is not acting in any manner which shall result in a dual agency, and Purchaser hereby consents to all such actions of NRC and disclaims, waives and forever releases NRC from any and all obligations that might be imposed on an agent in connection with any transaction hereunder and Purchaser hereby consents to same. Purchaser further disclaims, waives, forever releases, indemnifies and holds Seller harmless from any liability, loss, cost or obligation arising from any acts or omissions of NRC.
ENVIRONMENTAL MATTERS. Responsibility for environmental liabilities and indemnification for environmental matters for the Property is allocated as of closing as provided in the PSA. The Purchaser will be purchasing such Property on an “AS IS, WHERE IS” basis. Please see the PSP for additional information.
DISCLAIMER. Seller and NRC and their respective members, directors, officers, employees, agents, parents, subsidiaries and affiliates (collectively, “Representatives”) disclose that they may not have complete knowledge of the physical, environmental or economic characteristics of the Property. Accordingly (except as otherwise specifically stated in the PSA), Seller and NRC and their Representatives disclaim any warranty, guaranty or representation, express or implied, concerning (a) the condition or state of repair of the Property, including, without limitation, any condition arising in connection with the generation, use, transportation, storage, release, or disposal of petroleum products, toxic or hazardous substances, on and under, above, upon, or in the vicinity of the Property, and its impact on water, soil and geology; (b) the suitability of the Property and its water, soil and geology for any activities and use that the Purchaser may elect to conduct; (c) the extent of any right of way, lease, possession, lien, encumbrance, easement, license, reservation, or condition in connection with the Property; (d) the compliance of the Property or its operation with any applicable laws, ordinances, or regulations of any government or other body, including without limitation, compliance with any land use, Americans with Disabilities Act, wetland, or zoning law or regulation, or applicable environmental or coastal laws, rules, ordinances, and regulations; (e) title to or the boundaries of the Property; and (f) the physical condition of the Property, including, without limitation, the structural, mechanical and engineering characteristics of the improvements to the Property.
Except as stated above and as set forth in the related PSA, the sale of the Property is on an “AS IS, WHERE IS, WITH ALL FAULTS,” basis. Neither Seller, NRC, nor any of their Representatives make any warranty or representation, express or implied, or arising by operation of law, including, without limitation, any warranty of condition, habitability, or merchantability or fitness for a particular purpose, with respect to the Property. Bidders will bid on the Property based solely on their own investigations. By accepting title to any Property, a bidder acknowledges that it has conducted any investigation that it has considered necessary or advisable and that it is not relying upon any representations of Seller, NRC or any of their Representatives. The materials and information concerning the Property contained in the sales mailer, postcards, other brochures, the PSP and the Bid Package, and any other information provided by Seller or NRC or their Representatives, is based in part upon information and materials obtained from sources considered reliable, without independent verification. Bidders must not base their bids upon that information or environmental studies, repair estimates, other studies, or pro-forma and financial information that Seller or NRC provides, but must rely solely on their own estimates and studies. No warranty or representation, express or implied, is made by Seller, NRC, or any of their Representatives, as to the accuracy or completeness of the information provided to bidders.