NON-CIRCUMVENTION CONFIDENTIALITY AND CONDITIONAL BUYER'S BROKERAGE AGREEMENT
AGREEMENT entered into on August 29, 2022 Between Andrew Lichtenstein, Inc. 5770 Palisade Avenue Riverdale, New York 10471 (800) 242-9888 (718) 549-5999 Fax: (212) 255-5277 Email: AL@lichtensteinre.com (Referred to herein as the "Broker, and/or Conditional Buyer's Broker/Agent,
ALI or you, your") and Between M . , et al, Company: ,
et al Address Tel: Email: (Who shall act as direct principal
buyer and not as broker or intermediary) and/or its current or future partners, family, investors, agents, associates & clientele entities, affiliates, nominees, designees, successors or assigns, or buyer(in the event of a lease, flip or resale), executors in interest, equity, right,
title et al etc. all collectively referred to herein as "Prospective Buyer(s) or Buyer, Principal, Builder, Developer, I, we, my, my et al") of property(ies) or, option(s), Call(s), right(s) to purchase property(ies), asset(s),mortgage(s), note(s), receivable(s), deeds(s) or contract(s) of
sale/purchase, flip contract(s), as the case may be that Broker introduces for our consideration (Defined herein as "Property(ies), Development Site(s), Premises, Listing(s) or Asset(s)") including but not limited to: These Off Market Confidential Proprietary Opportunity:
Actual property addresses will be released by Broker to prospective buyer upon Broker's receipt of Prospective Buyer's signature on each of the pages of this agreement:
Whereas, the parties agree to the following:
- Broker has located properties that Broker feels may be a candidate for the Buyer to purchase and Buyer is interested in receiving the information on the listing for consideration of purchase from the Broker; therefore, If the Buyer buys the property(ies) that the Broker submits to the Buyer, then this Conditional Buyer's Brokerage agreement shall convert into an Exclusive Buyer's Brokerage Agency agreement; however, if the Buyer does not buy, then there shall be nothing whatsoever owed to the Broker herein.
- Duration of Agreement: This agreement shall remain in full force and effect for the period of seven years from date of this agreement and from date of any property submission or for as long as buyer buys.
- Confidentiality and Non-Circumvent: Buyer understands and agrees that the prospective Listings are proprietary relationships that Broker relies upon to facilitate business to earn a livelihood from brokerage income etc.; therefore, with regards to listings, contacts of the Broker they are Exclusive leads and Buyer shall not circumvent Broker. Buyer shall not contact the seller or seller's counsel directly without contacting same through and with the Broker. Buyer shall not disclose or release Broker's listing to any other party. Buyer shall not circumvent Broker to buy different properties of Seller. Principal and its counsel shall include ALI in, and provide simultaneous carbon copy via same method of communication such as email, fax, mail, phone call, etc. of any and all correspondence with ALI's prospective Seller, Seller's counsel, assignor, Investor, Source of capital, etc. whether Principal contacts same directly, is contacted directly, through another party or through ALI's efforts.
- Authority of Broker: The Broker is granted the authority considered necessary by Broker to facilitate purchase/sale between the Buyer and the Seller.
- Representations: Broker is marketing the property freely and publicly to any and all ready, willing and able buyers the seller shall decide whom the property shall be sold to. The Buyer shall refer to the Broker all inquiries or offers they may make about a listing that Broker submits to Buyer. Broker is free to represent multiple prospective parties, such as if Broker procures Lender/Investor financing on behalf of Buyer or, if broker facilitates a flip sale profit for the Buyer and represents new buyer as well, or broker may even act as a direct lender, investor or financier itself, Seller and/or Buyer and may receive remuneration from respective parties. Broker makes no representations or warranty, express or implied, as to the accuracy or completeness of the information provided by them. Buyer assumes full and complete responsibility to perform his own due diligence for confirmation and verification of all information received and expressly waives all rights of recourse against Broker with respect to the same and shall hold Broker harmless in all respects.
- Disclosed Dual Representation: This is not the only property that Broker is selling; Broker is free to represent other Buyers and/or Sellers and to be paid by both buyer and seller. The Buyer acknowledges that in the normal course of business the Broker may represent the Seller of the Property. Notwithstanding this Conflict and Dual Representation, Buyer consents to Broker's sale or exchange of the Property. Dual Representation occurs when a buyer and seller in one transaction each pay and are represented by the same Broker. When the parties agree to dual representation, the ability of the Broker to represent either party fully and exclusively is limited.
- Commission: Now therefore, if aforementioned property(ies*) are sold to the Buyer or anyone else related to the Buyer such as Buyer's family, investors, clients, assigns, nominees, agents, executors, etc. the Broker will be entitled and protected to be paid commission fees for each of the services Broker renders on behalf of the Buyer and/or if Broker procures funds on behalf of Buyer:
(a) Notwithstanding anything else to the contrary, in no uncertain terms, if the buyer finds its own different property or different address listings without the aid of Broker, or if Buyer decides not to buy prior to signing a contract of purchase, then Buyer shall have no obligation to pay Broker anything. (However, if buyer returns to sign a contract thereafter in contemplation of not paying broker then this shall be breach and willful default hereunder, broker shall earn commission in full.)
(b) SUCCESS FEE: Buyer shall pay Andrew Lichtenstein, Inc. at initial closing a Buyer's Brokerage Premium Fee of (4%) FOUR PERCENT of the gross sales purchase price, or investment made in the event that Buyer buys or invests, co or joint ventures the property(ies) or, option(s), Call(s), right(s) to purchase property(ies), asset(s), mortgage(s), note(s), receivable(s), deeds(s) or contract(s) of sale/purchase, flip contract(s), whether by purchase, exchange, lease, ground lease, investment, joint venture, partnership, REIT, upreit, DPP, TIC, DST, etc. or any other method of acquisition or investment and the transactional attorneys, Seller/Sponsor, Title Agent, settlement agent are hereby irrevocably instructed to pay from proceeds at settlement to Broker or its Broker/Dealer said fee indicated herein, as the case may be, while this agreement is in force, and the same, if Buyer returns and buys the property(ies) after the term of this agreement to avoid contemplation of willful circumvention of this agreement
(c) Andrew Lichtenstein, Inc. shall be paid a
TWO (2%) PERCENT REDUCED TO ONLY (1%) ONE PERCENT mortgage brokerage fee by Buyer for procuring financing on Buyer's behalf payable at closing from proceeds, should we require financing and shall act as our exclusive financing broker solely with regard to financing that you procure on behalf of Buyer. IF WE DO NOT ACCEPT THE TERMS as defined by closing, WE SHALL PAY YOU NOTHING!!! (If we don't use your source we don't pay for this option.)
- Directive: (To be incorporated into any and all contracts, escrow agreements and disbursement documents at closing.) Buyer/Applicant/Borrower shall pay and hereby irrevocably authorizes, instructs and directs its counsel, Escrow agent, title company, the Lender/Investor/funding source, seller and seller's counsel and Lender's/Investor/funding source's counsel (if applicable) to pay the unpaid portion of said fees in full directly out of escrow and proceeds the earlier of the escrow or at the initial closing of financing, sale, JV or purchase with escrow agent, Lender/Investor/funding source's or its attorney's wire transfer to beneficiary Andrew Lichtenstein, Inc. , unless ALI otherwise agrees in writing to receive payment that may only otherwise be made with cash or "bank teller check" to Andrew Lichtenstein, Inc. and to provide Andrew Lichtenstein, Inc. with all correspondence as buyer's broker, deal finder, financial advisor, etc. Principal hereby authorizes Andrew Lichtenstein, Inc. to direct Lender to fund these fees at the closing directly to Andrew Lichtenstein, Inc. I hereby irrevocably personally guarantee to pay Andrew Lichtenstein, Inc. in full no later than at the initial draw, funding or closing everything according to this agreement the terms hereof shall supersede, survive, govern and override any other arrangement(s) with Seller, Lender/Investor or others, regardless if there are contradictory terms or protocol to this agreement.
- Willful Default of brokerage fee and/or non-circumvent: In the unlikely event that Buyer fails to close Purchase due to its willful default by deciding not to buy after having signed purchase contract the conditional Broker's buyer's brokerage fee shall nonetheless be paid. If Buyer willfully defaults to close after signing contract of purchase due to title not being clear and marketable then a settlement commission of 0% of fee herein shall be paid to Broker by Buyer; however, if Buyer eventually buys, then balance of fee must be paid. If Buyer closes the purchase of listing submitted by Broker or if Buyer contacts and circumvents Broker's listing and defaults in paying Broker this fee at closing, then Broker may place a lien for this claim upon the collateral and Owner shall be obligated to pay Broker the Brokerage Commission Fee and a one-time default penalty of 19% of this fee plus if Broker litigates Buyer and/or Seller shall pay Broker's legal fees billed hourly to enforce collection.
- Exclusive Financing and Non-Circumvent: In consideration of your efforts as the deal finder in procuring property(ies) for sale, and financing for the acquisition, financing application or commitment we hereby exclusively irrevocably authorize you to represent us with regard to the Seller and future mortgage applications only with the lender whose application for financing commitment you procure on our behalf. We understand and agree that this lending source is a proprietary relationship that you rely upon to facilitate financing on behalf of your clients and earn a livelihood with; therefore, with regards to this Exclusive Lender we shall not circumvent you with regards to any future application requests for funds. Principal and its counsel shall include ALI in, and provide simultaneous carbon copy via same method of communication such as email, fax, mail, phone call, etc. of any and all correspondence with ALI's prospective Seller, Seller's counsel, assignor, Investor, ALI's Source of capital, lender, investor whether Principal contacts same directly, is contacted by same. Applicant is free to work with any other different source of financing without any obligation whatsoever to you the broker.
- Legal Jurisdiction & Provisions: Buyer represents that it has the authority to enter into this agreement, is a bona fide buyer with cash having the ability to be ready, willing and able to buy real estate from the seller. This agreement shall be interpreted, construed and governed by the laws of the State of New York, without regard to principals, premises or conflict of laws; the buyer agrees to submit him/itself to the jurisdiction of the courts of the State of New York. Price, information, rates, terms, and charges have been gathered from sources deemed reliable and are subject to approval, issuance and acceptance of the actual commitment, error and/or change without notice. If the foregoing meets with your understanding, kindly so indicate by signing the enclosed copy of this letter, which may also be by digital or electronic signature, or a facsimile transmission which shall be acceptable and carry the full force and effect equivalency as if it had been signed in our original hand in place of an original signature. This agreement has been executed in several counterparts, each of which shall be deemed an original. Broker is free to charge additional remuneration for additional services to buyers including mortgage brokerage services to aid in the sale of this property. In any instance where its reproduction shall be required in a court of law it shall satisfy the "Best Evidence Rule". If any provision herein is deemed unlawful, the remainder shall remain in full force and effect. In the event of bankruptcy, insolvency, reorganization, moratorium or similar laws, this agreement shall survive in full force and effect.
Agreed & Accepted Between the Parties Hereto,
Andrew Lichtenstein, Inc.
Licensed Real Estate Broker
New York, New York
(800) 242-9888 Fax: (212) 255-5277
Nov 29, 2023 or dated: