1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (BC 37-5-04) THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. Compensation charged by real estate brokerage firms is not set by law. Such charges are established by each real estate brokerage firm. DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY, SELLER AGENCY OR TRANSACTION-BROKERAGE. EXCLUSIVE RIGHT-TO-BUY CONTRACT (NONRESIDENTIAL) (TRANSACTION-BROKERAGE) Date: 1. AGREEMENT. Buyer and Brokerage Firm enter into this exclusive, irrevocable contract as of the date set forth above. 2. BROKERAGE RELATIONSHIP. a. Multiple-Person Firm. If this box is checked, the individual designated by Brokerage Firm to serve as the broker of Buyer and to perform the services for Buyer required by this contract is called Broker. If more than one individual is so designated, then references in this contract to Broker shall include all persons so designated, including substitute or additional brokers. The brokerage relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged by Brokerage Firm who are not so designated. b. One-Person Firm. If this box is checked, Broker is a real estate brokerage firm with only one licensed natural person. References in this contract to Broker or Brokerage Firm mean both the licensed natural person and brokerage firm, who serve as the broker of Buyer and perform the services for Buyer required by this contract. 3. DEFINED TERMS. a. Buyer: , and any other person or entity on whose behalf the named party acts, directly or indirectly, to Purchase the Property. b. Brokerage Firm: c. Broker: d. Property. Property means real estate that substantially meets the following requirements or similar real estate acceptable to Buyer: No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 1 of 6 American LegalNet, Inc. www.USCourtForms.com 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 e. Purchase. Purchase means the acquisition of any interest in the Property or the creation of the right to acquire any interest in the Property (including a contract or lease). It also includes an agreement to acquire any ownership interest in an entity that owns the Property. f. Term. The Term of this contract shall begin on , and shall continue through the earlier of (1) completion of the Purchase of the Property or (2) . Broker shall continue to assist in the completion of any transaction for which compensation is payable to Brokerage Firm under § 6 of this contract. g. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The abbreviation "N/A" means not applicable. The abbreviation "MEC" (mutual execution of this contract) means the latest date upon which both parties have signed this contract. 4. BROKERAGE SERVICES AND DUTIES. Brokerage Firm, acting through Broker, shall provide brokerage services to Buyer. Broker will make reasonable efforts to locate the Property, and to assist the parties in complying with the terms and conditions of any contract to Purchase the Property, including closing the transaction. a. Broker will exercise reasonable skill and care for buyer, including, but not limited to the following: (1) Presenting all offers to and from Buyer in a timely manner regardless of whether Buyer is already a party to a contract to Purchase the Property; (2) Disclosing to Buyer adverse material facts actually known by Broker; (3) Advising Buyer regarding the transaction and suggesting Buyer obtain expert advice as to material matters about which Broker knows but the specifics of which are beyond the expertise of Broker; (4) Accounting in a timely manner for all money and property received; and (5) Keeping Buyer and seller fully informed regarding the transaction. b. Broker shall not disclose the following information without the informed consent of Buyer: (1) That Buyer is willing to pay more than the purchase price offered for the Property; (2) What Buyer's motivating factors are; (3) That Buyer will agree to financing terms other than those offered; (4) Any material information about Buyer unless disclosure is required by law or failure to disclose such information would constitute fraud or dishonest dealing; or (5) Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize the Property. c. Buyer consents to Broker’s disclosure of Buyer’s confidential information to the supervising broker or designee for the purpose of proper supervision, provided such supervising broker or designee shall not further disclose such information without consent of Buyer, or use such information to the detriment of Buyer. No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 2 of 6 American LegalNet, Inc. www.USCourtForms.com 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 d. Buyer shall not be vicariously liable for the acts of Broker that are not approved, directed or ratified by Buyer. e. Broker has no duty to conduct an independent inspection of the Property for the benefit of Buyer and has no duty to independently verify the accuracy or completeness of statements made by a seller or independent inspectors. Broker has no duty to conduct an independent investigation of Buyer's financial condition or to verify the accuracy or completeness of any statement made by Buyer. f. Broker shall disclose to any prospective seller all adverse material facts actually known by Broker, including but not limited to adverse material facts concerning Buyer's financial ability to perform the terms of the transaction. g. In-Company Transaction – Different Brokers. When the seller and Buyer in a transaction are working with different brokers, those brokers continue to conduct themselves consistent with the brokerage relationships they have established. Buyer acknowledges that Brokerage Firm is allowed to offer and pay compensation to brokers within Brokerage Firm working with a seller. h. In-Company Transaction – One Broker. If the seller and Buyer are both working with the same broker, Broker shall continue to function as a Transaction-Broker. 5. BUYER'S OBLIGATIONS TO BROKER. Buyer agrees to conduct all negotiations for the Property only through Broker, and to refer to Broker all communications received in any form from real estate brokers, prospective sellers, or any other source during the Term of this contract. Buyer represents that Buyer Is Is Not currently a party to any agreement with any other broker to represent or assist Buyer in the location or purchase of property. 6. COMPENSATION TO BROKERAGE FIRM. In consideration of the services to be performed by Broker, Brokerage Firm shall be paid as set forth in this section, with no discount or allowance for any efforts made by Buyer or any other person. Check Compensation Arrangement: a. Listing Brokerage Firm or Seller May Pay. Buyer is NOT Obligated to Pay. Broker is authorized to obtain payment of the Brokerage Firm’s fee from the listing brokerage firm or seller. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid by listing brokerage firm or seller. Broker shall inform Buyer of the fee to be paid to Brokerage Firm and, if there is a written fee agreement, Broker shall supply a copy to Buyer, upon written request of Buyer. Buyer shall not be obligated to pay Brokerage Firm’s fee. b. Listing Brokerage Firm or Seller May Pay. Buyer IS Obligated to Pay. Broker is authorized and instructed to request payment of the Brokerage Firm’s fee from the listing brokerage firm or seller. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid by listing brokerage firm or seller. Broker shall inform Buyer of the fee to be paid to Brokerage Firm and, if there is a written fee agreement, Broker shall supply a copy to Buyer, upon written request of Buyer. Buyer shall be obligated to pay any portion of Brokerage Firm's fee as described below which is not paid by the listing brokerage firm or seller. No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 3 of 6 American LegalNet, Inc. www.USCourtForms.com 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 (1) $ Success Fee. Brokerage Firm shall be paid as follows: (a) Amount. A fee equal to % of the purchase price, but not less than , except as provided in subsection 6b(1)(b) below. (b) Amount – Other. . (c) Earned. The Success Fee is earned by the Brokerage Firm upon the Purchase of the Property and is payable upon closing of the transaction. If any transaction fails to close as a result of the seller’s default, with no fault on the part of Buyer, the Success Fee shall be waived. If any transaction fails to close as a result of Buyer’s default, in whole or in part, the Success Fee shall not be waived; such fee shall be payable upon Buyer's default, but in any event not later than the date that the closing of the transaction was to have occurred. (d) Holdover. This fee shall apply to Property contracted for during the Term of this contract or any extensions and shall also apply to Property contracted for within ____ calendar days after this contract expires or is terminated (Holdover Period) if the Property is one on which Broker negotiated and if Broker submitted its address or other description in writing to Buyer during the Term. Provided, however, if a commission is earned by another real estate brokerage firm acting pursuant to an exclusive agreement with Buyer entered into during the Holdover Period, Brokerage Firm shall be owed no commission under subsection 6b(1) above. (2) Hourly Fee. Brokerage Firm shall be paid $ per hour for time spent by Broker pursuant to this contract, up to a maximum total fee of $ ______. This hourly fee shall be paid to Brokerage Firm upon receipt of an invoice from Brokerage Firm. (3) Retainer Fee. Buyer shall pay Brokerage Firm a nonrefundable retainer fee of $_______ due and payable upon signing of this contract. This amount Shall Shall Not be credited against other fees payable to Brokerage Firm under this section. (4) Other Compensation. 7. LIMITATION ON THIRD-PARTY COMPENSATION. Neither Broker nor Brokerage Firm, except as set forth in §6, shall accept compensation from any other person or entity in connection with the Property without the written consent of Buyer. Additionally, neither Broker nor Brokerage Firm shall be permitted to assess and receive mark-ups or other compensation for services performed by any third party or affiliated business entity unless Buyer signs a separate written consent for such services. 8. COSTS OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES. Broker will not obtain or order products or services from outside sources unless Buyer has agreed to pay for them promptly when due (examples: surveys, radon tests, soil tests, title reports, engineering studies, property inspections). Neither Broker nor Brokerage Firm shall be obligated to advance funds for Buyer. Buyer shall reimburse Brokerage Firm for payments made by Brokerage Firm for such products or services authorized by Buyer. No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 4 of 6 American LegalNet, Inc. www.USCourtForms.com 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 9. SHOWING PROPERTIES. Buyer acknowledges that Broker has explained the possible methods used by listing brokers and sellers to show properties, and the limitations (if any) on Buyer and Broker being able to access properties due to such methods. Broker's limitations on accessing properties are as follows: . Broker, through Brokerage Firm, has access to the following multiple listing services and property information services: . 10. DISCLOSURE OF BUYER'S IDENTITY. Broker Does Does Not have Buyer's permission to disclose Buyer's identity to third parties without prior written consent of Buyer. 11. OTHER BUYERS. Buyer acknowledges, that under Colorado law, Broker may show properties in which Buyer is interested to other prospective buyers without breaching any duty or obligation to Buyer. 12. NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any prospective seller because of the race, creed, color, sex, marital status, national origin, familial status, physical or mental handicap, religion or ancestry of such person. 13. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer acknowledges that Broker has advised that this document has important legal consequences and has recommended consultation with legal and tax or other counsel before signing this contract. 14. MEDIATION. If a dispute arises relating to this contract, prior to or after closing, and is not resolved, the parties shall first proceed in good faith to submit the matter to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved within 30 calendar days of the date written notice requesting mediation is sent by one party to the other at the party’s last known address. 15. ATTORNEY FEES. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney and legal fees. 16. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) 17. ATTACHMENTS. The following are a part of this contract: 18. NOTICE, DELIVERY AND CHOICE OF LAW. a. Physical Delivery. Except for the notice requesting mediation described in § 14, and except as provided in § 18b below, any notice to the other party to this contract must be in writing and is effective upon receipt. No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 5 of 6 American LegalNet, Inc. www.USCourtForms.com 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 b. Electronic Delivery. As an alternative to physical delivery, any signed document and written notice may be delivered in electronic form by the following indicated methods only: Facsimile E-mail None. Documents with original signatures shall be provided upon request of any party. c. Choice of Law. This contract and all disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in this state for property located in Colorado. 19. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the terms of this contract shall be valid, binding upon the parties, or enforceable unless in writing and signed by the parties. 20. COUNTERPARTS. If more than one person is named as a Buyer herein, this contract may be executed by each Buyer, separately, and when so executed, such copies taken together with one executed by Broker on behalf of Brokerage Firm shall be deemed to be a full and complete contract between the parties. 21. ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties and any prior agreements, whether oral or written, have been merged and integrated into this contract. 22. COPY OF CONTRACT. Buyer acknowledges receipt of a copy of this contract signed by Broker, including all attachments. Brokerage Firm authorizes Broker to execute this contract on behalf of Brokerage Firm. Date: Date: Buyer Address: Phone No.: Email Address: Buyer Fax No.: Date: Broker Broker's Name: Address: Phone No.: Email Address: Fax No.: Brokerage Firm's Name: Address: Phone No.: Email Address: Fax No.: No. BC37-5-04 EXCLUSIVE RIGHT-TO-BUY CONTRACT (Non-Residential) ( Transaction-Brokerage) Page 6 of 6 American LegalNet, Inc. www.USCourtForms.com