Loading...
Purchase and Sale Agreement Group ill No. 35fiol PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made between COUNTRYWIDE HOME LOANS Inc, a Texas Limited Partnership, whose address is 400 Countrywide Way, Simi Valley, California 93065 as servicing agent and attorney in fact for HSBC Bank USA, National Association, as Trustee for ACE Securities Corp. Home Equity Loan Trust, Series 2007-WM1 Asset-Backed Pass-Through Certificates Series 2007-WMI ("Seller") and Collier County, a Political Subdivision of the State of Florida, whose address is 3301 Tamiami Trail East, Naples, Florida 34112 ("Purchaser"), (together, the "Parties" and individually, the "Party") and is effective as of June 11,2009 (the "Effective Date"). Recitals: Seller owns certain real property improvements, appurtenances and hereditaments located at 5031 32Dd Ave SW, Naples, County of Collier, State of Florida, legally described on Exhibit A attached to this Agreement ("Property") which it wishes to sell, and which Purchaser wishes to purchase; and The sale and purchase of the Property shall also be subject to a number of conditions, as each is described by this Agreement; Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows: Nei2hborhood Stabilization Pro2ram. The Parties acknowledge that the sale and purchase of the Property [check applicable provision] IS [81 IS NOT 0 being made pursuant to federal funds distributed as part of the emergency assistance for the redevelopment of abandoned and foreclosed homes under Section 2301 of Title 3 of Division B of , the Housing and Economic Recovery Act of 2008 ("HERA") and the Neighborhood Stabilization Guidelines of the Department of Housing and Urban Development ("NSP Guidelines") and amendments thereto. 1. Sale of ProDertv. Subject to compliance with the tenns and conditions of this Agreement, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the Property. 2. Purchase Price. The purchase price for the Property ("Purchase Price") shall be Eighty Two Thousand Four Hundred Fifty and No/lOOths Dollars ($82,450.00). However, the amount payable by Purchaser to Seller for the purposes of this transaction as the consideration to be paid shall be Sixty Three Thousand Seven Hundred Fifty and N 0/1 OOths Dollars ($63,750.00) ("Total Adjusted Purchase Price"). The amount payable by Purchaser to Seller shall be payable as follows: (a) Three Percent (3.0%) of the Purchase Price or Two Thousand Five Hundred and NollOOths Dollars ($2,500.00), whichever is greater ("Earnest Money") which shall be delivered to the account of Title (defined below) within seven (7) business days after execution of this Agreement, pursuant to the Earnest Money Addendum to Purchase Agreement attached to this Agreement; and (b) Sixty One Thousand Two Hundred Fifty and Noll OOths Dollars ($61,250.00.00) representing the balance of the Purchase Price payable in cash, certified check, bank check or wire transfer on the Closing Date. For the purposes of this Paragraph 2 the Total Adjusted Purchase Price is an agreed upon swn intended to be less than the Purchase Price and shall reflect certain cost savings to the Seller associated with the subject transaction. Purchaser shall obtain an appraisal at its sole cost and expense to support the Purchase Price pursuant to NSP Guidelines,- if NSP funds are being used in this transaction. If the NSP Appraisal obtained by Purchaser does not support the Purchase Price, Seller shall have no obligation hereunder to reduce the Purchase Pnce. 3. Time of the Essence: ClosiDl! Date: (a) It is agre~d that time is of the essence with respect to all dates specified in this Agreement and any addenda, riders or amendments thereto. This means that all deadlines are intended to be strict and absolute. (b) The closing shall take place on or before July 26, 2009 ("Closing Date"), unless the Closing Date is extended in writing signed by Seller and Purchaser or extended by Seller under the terms of this Agreement. (c) NotwithStanding any provision herein and to the extent Purchaser elects not to obtain its own Title Commitment, Seller shall select a title insurance company which will issue the Title Commitment to Purchaser and Seller shall pay for the cost of issuance of said Title Commitment and the final title insurance policy. The Selection of said title insurance company by Seller shall not prohibit Purchaser from purchasing its own title policy or Title Commitment. (d) The closing agent for the transaction shall be selected by the Seller and identified in the Earnest Money Addendum to this Agreement. 4. Inspections: Purchaser understands and acknowledges that Seller acquired the Property by means of foreclosure or deed in lieu thereof; and that Seller has very limited documentation, reports and other due diligence information regarding the condition of the " . "perty. Before entering into this Agreement, the Purchaser has inspected the Property and obtained for its own use, benefit and reliance, inspections and/or reports on the condition of the Property, and have accepted the Property "As-Is". The Purchaser shall keep the Property free and clear of liens and indemnify and hold the Seller harmless from all liability claims, demands, ri"tnages, and costs related to the Purchaser's inspection and any inspection conducted by 1 w.o..;haser after the date of this Agreement, and the Purchaser shall repair all damages arising 2 from or caused by the inspections. The Purchaser shall not directly or indirectly cause any inspections to be made by any government building or zoning inspectors or government employees without the prior written consent of the Seller, unless required by law, in which case, the Purchaser shall provide reasonable notice to the Seller prior to any such inspection. If the Seller has winterized this Property and the Purchaser desires to have the Property inspected, listing agent will have the Property dewinterized prior to inspection and rewinterized after inspection. The Purchaser agrees to pay this expense in advance to the listing agent. The amount paid under this provision shall be nonrefundable. 5. Personal Property: Items of personal property, including but not limited to window coverings, appliances, manufactured homes, mobile homes, vehicles, spas, antennas, satellite dishes and garage door openers, now or hereafter located on the Property are not included in this sale or the Purchase Price unless the personal property is specifically described and referenced on Exhibit B attached to and made a part of this Agreement. Any personal property at or on the Property may be subject to claims by third parties and, therefore, may be removed from the Property. prior to the Closing Date. Seller makes no representation or warranty as to the condition of any personal property, title thereto, or whether any personal property is encumbered by any liens. Purchaser assumes responsibility for any personal property remaining on the Property at the time of closing. 6. Closin2 Costs and Adiustments: (a) Purchaser and Seller agree to prorate the following expenses as of closing and funding: municipal water and sewer charges, utility charges, real estate taxes and assessments, common area charges, condominium or planned unit development or similar community assessments, co-operative fees, maintenarice fees, and rents, if any. In determining prorations, the funding date shall be allocated to Purchaser. Payment of special assessment district bonds and assessments, and payment of homeowner's association or special assessments shall be paid current and prorated between Purchaser and Seller as of Closing Date with payments not yet due and owing to be assumed by Purchaser without credit toward Purchase Price. The Property taxes shall be prorated based on an estimate or actual taxes from the previous year on the Property. All prorations shall be based upon a 30-day month and all such prorations shall be final. Seller shall not be responsible for any amounts due, paid or to be paid after. closing, including but not limited to, any taxes, penalties or interest assessed or due as a result of retroactive, postponed or additional taxes resulting from any change in use of, or construction on, or improvement to the Property, or an adjustment in the appraised value of the Property. In the event Seller has paid any taxes,' special assessments or other fees and there is a refund of any such taxes, assessments or fees after closing, and Purchaser as current owner of the Property receives the payment, Purchaser will immediately submit the refund to Seller. If the Property is heated by or has storage tanks for fuel oil, liquefied petroleum gases or similar fuels, Purchaser will buy the fuel in the tank at closing at the current price as calculated by the supplier. Property taxes shall be prorated to the Closing Date on a per diem calendar basis. All interest, rents, city water charges current operating expenses, and homeowner's association dues shall be prorated to the 3 Closing Date. Homeowner association transfer dues, if any, to be paid by Purchaser. Seller agrees to pay all special assessments levied of record or certified into the current year's taxes as of the date of closing. In Addition, Seller agrees to pay a prorated portion of any pending assessments at closing or deposit funds into escrow to cover these costs; any difference will be refunded to the Seller. (b) Seller shall only pay those closing costs and fees associated with the transfer of the Property that local custom or practice clearly allocates to Seller and any closing costs and fees specifically agreed to herein. 7. Delivery of Funds: Regardless oflocal custom, requirements, or practice, upon delivery of the deed by Seller to Purchaser, Purchaser shall deliver all funds due Seller from the sale in the form of cash, bank check, certified check or wire transfer. An attorney's trust fund check shall not be sufficient to satisfy this provision unless the bank holding the account on which the trust fund check is drawn certifies the trust fund check. 8. Delivery of Possession of Property: Seller shall deliver possession of the Property to Purchaser at closing and funding of sale. Seller warrants and covenants with Purchaser that (a) the Property was vacant and unoccupied at the time of commencing discussions with Purchaser for the purchase of the Property, is vacant and unoccupied at the time of the execution of this Agreement and will be delivered to Purchaser at the closing in a vacant and unoccupied condition, (b) the availability or existence of the federal funds under HERA has not induced the Lender's commencement of the foreclosure proceedings, any deed in lieu of foreclosure or other enforcement procedures which has resulted in Seller's ownership of the Property, and (c) all foreclosure proceedings and any eviction actions are completed and any redemption periods of the prior foreclosed mortgagor/owner and all persons claiming through such person(s) have expired. If Purchaser alters the Property or causes the Property to be altered in any way and/or occupies the Property or allows any other person to occupy the Property prior to closing and funding without the prior written consent of Seller, such event shall constitute a breach by Purchaser under this Agreement and Seller may terminate this Agreement and Purchaser shall be liable to Seller for damages caused by any such alteration or occupation of the Property prior to the Closing Date and funding and Purchaser hereby waives any and all claims for damages or compensations for improvements made by Purchaser to the Property including, but not limited to, any claims for unjust enrichment. 9. Deed: The deed to be delivered at closing shall be a deed that covenants that grantor grants only that title which grantor may have and that grantor will only defend title against persons claiming by, through, or under the grantor, but not otherwise known as a Special Warranty. Any reference to the term "Deed" or "Special Warranty Deed" herein shall be construed to refer to such form of deed. It is the intent of Seller to deliver insurable title to the subject property through the conveyance of the Special Warranty Deed or comparable instrument. 10. Title to be Delivered. At Closing, Seller agrees to deliver to Purchaser the Deed, which conveys marketable fee simple title in the Property to Purchaser subject to the terms v,-,utained in Section 12 herein. 4 11. Title and Examination. (a) Within five (5) days from the date of this Agreement, Seller will order a commitment for a title insurance policy (the "Title Commitment") issued by Landsafe Title, ("Title") and provide a copy to Purchaser upon receipt. Purchaser shall have five (5) days from the date of its receipt of the Title Commitment to examine title and make any objections thereto, which shall be made in writing to Seller or deemed waived. If any objections are so made, Seller shall be allowed sixty (60) days to make title marketable. Pending correction of title, payments hereunder required shall be postponed, but upon correction of title and within ten (10) days after written notice to Purchaser, the Parties shall perform this agreement according to its terms. 12. Defects in Title: Upon examination of the title commitment by Purchaser and notice to Seller of a title objection, the Parties agree to proceed as follows: (a) If Purchaser raises an objection to Seller's title to the Property as provided in Paragraph 11, which, if valid, would make title to the Property uninsurable and not correctable within sixty (60) days, Seller shall have the right to terminate this Agreement by giving written notice of the termination to Purchaser, provided however, Purchaser shall have the right within five (5) days of such notice to either waive such defect or request Seller to proceed under Paragraph 12(c) below. (b) However, if Seller is able to correct the problem through reasonable efforts, as Seller determines, at its sole and absolute discretion, within said sixty (60) day period, including any written extensions, or if title insurance is available from a reputable title insurance company at regular rates containing affirmative coverage for the title objections, as provided below or Purchaser waives the defect, then this Agreement shall remain in full force and Purchaser shall perform pursuant to the terms set in this Agreement. (c) Seller will reasonably cooperate with Title and Purchaser on the title corrections to remove any such exception or to make "the title insurable, but any attempt by Seller to remove such title exceptions shall not impose an obligation upon. Seller to remove those exceptions. (d) In the event Seller, within such sixty (60) day period is not able to (i) make the title insurable or correct any problem or (ii) obtain title insurance from a reputable title insurance company, all as provided herein, Purchaser may either waive the objection or terminate this Agreement and any Earnest Money deposit will be returned to Purchaser as Purchaser's sole remedy at law or equity. Notwithstanding the forgoing, the Seller is not obligated to (A) remove any exception, (B) bring any action or proceeding or bear any expense in order to convey title to the Property, or (C) make the title marketable or insurable. 13. Representations and Warranties: Purchaser represents and warrants to Seller the following: 5 (a) Purchaser is purchasing the Property solely in reliance on its own investigation and inspection of the Property and not on any information, representation or warranty provided or to be provided by Seller, its servicers, representatives, brokers, employees, agents or assigns; (b) Neither Seller, nor its servicers, employees, representatives, brokers, agents or assigns, has made any representations or warranties, implied or expressed, relating to the condition of the Property or the contents thereof, except as expressly set forth in Paragraph 4 ofthis Agreement; (c) Purchaser has not relied on any representation or warranty from Seller regarding the nature, quality or workmanship of any repairs made by Seller; and (d) Purchaser will not occupy or cause or permit others to occupy the Property prior to closing and funding and, unless and until any necessary Certificate of Occupancy has been obtained from the appropriate governmental entity, will not occupy or cause or permit others to occupy the Property until after closing. 14. Conditions to the Parties' Performance: (a) Seller shall have the right, at Seller's sole discretio~ to extend the Closing Date or to terminate this Agreement if: (i) full payment of any mortgage insurance claim related to the loan previously secured by the Property is not confirmed prior to the Closing Date or the mortgage insurance company exercises its right to acquire title to the Property; (ii) Seller determines that it is unable to convey good and marketable title to the Property insurable by a reputable title insurance company at regular rates; (Hi) a third Party with rights related to the sale of the Property does not approve the sale terms; (iv) full payment of any property, fire or hazard insurance claim is not confirmed prior to the Closing Date; (v) any third Party, whether homeowner's association, or otherwise, exercises rights under a right of first refusal to purchase the Property; (vi) Purchaser is the former mortgagor of the Property whose interest was foreclosed, or is related to or affiliated in any way with the former mortgagor, and Purchaser has not disclosed this fact to Seller prior to Seller's acceptance of this Agreement. Such failure to disclose shall constitute default under this Agreement, entitling Seller to exercise any of its rights and remedies; or 6 (vii) Seller, at Seller's sole discretion, determines that the sale of the Property to Purchaser or any related transactions are in any way associated. with illegal activity of any kind. In the event Seller elects to terminate this Agreement as a result of subparagraph 14 (a) (i), (ii), (iii), (iv), (v), (vi), or (vii) above, Seller shall return Purchaser's Earnest Money deposit and the Parties shall have no further obligation under this Agreement except as to any provision that survives termination pursuant to Paragraph 20 of this Agreement. (b) Purchaser's obligation to purchase the Property is subject to and conditioned. upon the fulfillment of the following conditions precedent: (i) If Purchaser is using federal funds under HERA as described on page 1 ofthis Agreement ("NSP Funds"), the receipt by Purchaser of an appraisal consistent with the NSP Guidelines ("NSP Appraisal") in form and appraised value acceptable to meet NSP Guidelines and support the Purchase Price set forth above and in form and content acceptable to Purchaser. Purchaser shall have twenty one (2 I) days from the Effective Date of this Agreement to obtain an NSP Appraisal acceptable to meet NSP Guidelines and support the Purchase Price. Purchaser shall have the right to Terminate this Agreement if the NSP Appraisal does not support the Purchase Price and Seller elects not to reduce the Purchase Price which election shall be in Seller's sole and absolute discretion. If Purchaser raises an objection on the fair market value of the property, Purchaser shall deliver a copy of the NSP Appraisal to Seller along with its written objections thereto within twenty one (21) days of the Effective Date of this Agreement. Seller shall five (5) days from receipt of the Purchaser's objections and NSP Appraisal to respond to Purchaser. (ii) If Purchaser is using NSP Funds, the receipt by Purchaser of certain required NSP Guidelines reports relating to environmental, historic district conditions and other necessary NSP related due diligence reports (''NSP Due Diligence Reports"), all in form and content acceptable to Purchaser. Purchaser shall have twenty one (21) days from the Effective Date of this Agreement to complete the NSP Due Diligence Reports acceptable to meet NSP Guidelines. Purchaser shall have the right to Terminate this Agreement if the findings contained in the NSP Due Diligence Reports preclude the purchase of the Property under NSP Guidelines and Seller elects not to remedy the environmental findings which election shall be in Seller's sole and absolute discretion. If Purchaser raises an objection based on the findings contained in the NSP Due Diligence Reports, Purchaser shall deliver a copy of said NSP Due Diligence Reports to Seller along with its written objections thereto within twenty one (21) days of the Effective Date of this Agreement. Seller shall five (5) days from receipt of the Purchaser's objections to review and respond to Purchaser. (iii) If Purchaser is required to obtained approval, from a separate governmental entity to purchase the Property, Purchaser shall have twenty one 7 (21) days from the Effective Date of this Agreement to obtain such official approval. In the event any of the foregoing conditions precedent to Purchaser's obligation to close are not fulfilled on or before the Closing Date, Purchaser may either waive the objection or terminate this Agreement and any Earnest Money deposit will be returned to Purchaser as Purchaser's sole remedy at law or equity and the Parties shall have no further obligation under this Agreement except as to any provision that survives termination pursuant to Paragraph 20 of this Agreement. Unless otherwise agreed upon between the Parties and as reflected on the closing statement for the transaction which is the subject of this Agreement, the cost of the NSP Appraisal and the NSP Due Diligence Reports shall be at the sole cost and expense of Purchaser. 15. Remedies for Default: (a) In the event of Purchaser's default, material breach or material misrepresentation of any fact under the terms of this Agreement, Seller, at its option, may retain any other funds then paid by Purchaser as liquidated damages and/or invoke any other remedy expressly set out in this Agreement and Seller is automatically released from the obligation to sell the Property to Purchaser and neither Seller nor its representatives, agents, attorneys, successors, or assigns shall be liable to Purchaser for any damages of any kind as a result of Seller's failure to sell and convey the Property. (b) In the event of Seller's default or material breach under the terms of this Agreement or if Seller tenninates this Agreement as provided under the provisions of this Agreement, Purchaser shall be entitled to the return of the Earnest Money deposit as Purchaser's sole and exclusive remedy at law and/or equity. Any reference to a return of Purchaser's Earnest Money deposit contained in the Agreement shall mean a return of the Earnest Money deposit less any escrow cancellation fees applicable to Purchaser under this Agreement and less fees and costs payable for services and products provided during escrow at Purchaser's request. Purchaser waives any claims that the Property is unique and Purchaser acknowledges that a return of its Earnest Money deposit can adequately and fairly compensate Purchaser. Upon return of the Earnest Money deposit to Purchaser, this Agreement shall be terminated, and Purchaser and Seller shall have no further liability, no further obligation, and no further responsibility each to the other and Purchaser and Seller shall be released from any further obligation each to the other in connection with this Agreement. (c) Purchaser agrees that Seller shall not be liable to Purchaser for any special, consequential or punitive damages whatsoever, whether in contract, tort (including negligence and strict liability) or any other legal or equitable principle, or any other such expense or cost arising from or related to this Agreement or a breach of this Agreement. (d) Any consent by any Party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach. 8 (e) In the event either party elects to exercise its remedies as described in this Paragraph 15 of this Agreement, and this Agreement is terminated, the Parties shall have no further obligation under this Agreement except as to any provision that survives the termination of this Agreement pursuant to Paragraph 20 of this Agreement. 16. Indemnification: Purchaser agrees to indemnify and fully protect, defend, and hold Seller, its officers, directors, employees, shareholders, servicers, representatives, agents, attorneys, tenants, brokers, successors or assigns harmless from and against any and all claims, costs, liens, loss, damages, attorney's fees and expenses of every kind and nature that may be sustained by or made against Seller, its officers, directors, employees, shareholders, servicers, representatives, agents, attorneys, tenants, brokers, successors or assigns, resulting from or arising out of: (a) inspections or repairs made by Purchaser or its agents, employees, contractors, successors or assigns; (b) the imposition of any fine or penalty imposed by any municipal or governmental entity resulting from Purchaser's failure to timely obtain any necessary Certificate of Occupancy or to comply with equivalent laws and regulations; and (c) claims for amounts due and owed by Seller for taxes, homeowner association dues or assessment or any other items prorated at closing under Paragraph 6 of this Agreement, including any penalty or interest and other charges, arising from the proration of such amounts for which Purchaser received a credit at closing under Paragraph 7 of this Agreement. Notwithstanding the foregoing, the Purchaser's Indemnity shall include all claims arising or accruing as a result of (i) Purchaser or Purchaser's tenants, agents or representatives use and/or occupancy of the Property prior to closing and/or issuance of any required Certificate of Occupancy, (ii) any claims relating in any way to any theft or damage of the personal property located in the Property that occurs after the Date of Closing or (iii) in addition to claims related to the indemnity provided at Paragraph 16 (a) above, any claims in any way related to possession or presence of the Purchaser, agents, employees, contractors, successors or assigns its agents on or around the Property. 17. Risk of Loss: In the event of fire, destruction, or other casualty loss to the Property after the Seller's acceptance of the Agreement and prior to closing and funding, after the occurrence of such casualty, the Seller may, at its sole discretion do anyone of the following: (i) if the damage is not 'material, and Seller chooses to repair or restore the Property, Seller may elect to notify the Purchaser of its intention to proceed to closing without offering any adjustment to the Purchase Price or the Purchase Price as set forth at Paragraph 2 and Purchaser shall proceed to closing as described in the Seller's Notice (described below); (ii) if the damage is material (material defined as 10% or $10,000 which ever is greater) and Seller chooses to repair or restore the Property, Seller may elect to notify 9 the Purchaser of its intention to proceed to closing without offering any adjustment to the Purchase Price or the Purchase Price as set forth at Paragraph 2; (iii) if Seller chooses not to repair or restore the Property, Seller may elect to notify the Purchaser of its intention to proceed to closing without offering any adjustment to the Purchase Price or the Purchase Price as set forth at Paragraph 2;or (iv) if Seller chooses to repair or restore the Property, Seller may elect to notify the Purchaser of its intention to proceed to,dosing with an appropriate adjustment to the Purchase Price or the Purchase Pric~ as set forth at Paragraph 2, and (v) if Seller chooses not to repair or restore the Property, Seller may elect to notify the Purchaser of its intention to proceed to closing with an appropriate adjustment to the Purchase Price or the Purchase Price as set forth at Paragraph 2. Seller shall give Purchaser written notice ("Seller's Notice") within a reasonable time after the occurrence of such damage of its election to proceed under any of items (i) through (v) above. Seller shall include in any such Seller's Notice the date of the intended closing date and the amount, if any of any proposed adjustment to the Purchase Price or to the Purchase Price. If the Seller elects in its Seller's Notice to proceed under subsections (ii) through (v) above, the Purchaser shall either (a) agree to acquire the Property in its then AS-IS condition and proceed to closing or (b) terminate the Agreement or (c) Purchaser and Seller agree to new purchase price. If the Purchaser terminates the Agreement as provided in this subsection, the Earnest Money Deposit shall be immediately returned to the Purchaser and the Agreement shall be null and void and neither party shall have any further rights or liabilities hereunder except as provided in Section 20. 18. Eminent Domain: In the event that Seller's interest in the Property, or any part thereof, shall have been taken by eminent domain or shall be in the process of being taken on or before the Closing Date, either Party may terminate this Agreement and the Earnest Money deposit shall be returned to Purchaser and neither Party shall have any further rights or liabilities hereunder except as provided in Paragraph 20 of this Agreement. 19. Kevs: Purchaser understands that if Seller is not in possession of keys, including but not limited to, mailbox keys, recreation area keys, gate cards, or automatic garage remote controls, then the cost of obtaining the same will be the responsibility of Purchaser. Purchaser also understands that if the Property includes an alarm system, Seller cannot provide the access code and/or key and that Purchaser is responsible for any costs associated with the alarm and/or changing the access code or obtaining keys. If the Property is presently on a Master Key System, Seller will re-key the exterior doors to the Property prior to closing and funding at Purchaser's expense. Purchaser authorizes and instructs escrow holder to charge the account of Purchaser at closing for the rekey. 20. Survival: Delivery of the deed to the Property to Purchaser by Seller shall be deemed to be full performance and discharge of all of Seller's obligations under this Agreement. 10 Notwithstanding anything to the contrary in this Agreement, the provisions of Paragraph 16 of this Agreement, as well as any other provision which contemplates performance or observance subsequent to any termination or expiration of this Agreement, shall survive the closing, funding and the delivery of the Deed and/or termination of this Agreement by any Party and continue in full force and effect. 21. Severabilitv: The invalidity, illegality or enforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, all of which shall remain in full force and effect. 22. Assi2nment of Aueement: Purchaser shall not assign this Agreement without the express written consent of Seller. Seller may assign this Agreement at its sole discretion without prior notice to, or consent of, Purchaser. 23. Entire Aereement: This Agreement, including the disclosure of information on lead based paint and/or lead based paint hazards or Seller Disclosure and Release Addendum or other disclosure forms or notices required by law, constitutes the entire agreement between Purchaser and Seller concerning the subject matter hereof and supersedes all previous communications, understandings, representations, warranties, covenants or agreements, either written or oral and there are no oral or other written agreements between Purchaser and Seller. NO ORAL PROMISES, REPRESENTATIONS (EXPRESSED OR IMPLIED), WARRANTIES OR AGREEMENTS MADE BY SELLER AND/OR BROKERS OR ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE DEEMED VALID OR BINDING UPON SELLER UNLESS EXPRESSLY INCLUDED IN TmS AGREEMENT. All negotiations are merged into this Agreement. Seller is not obligated by any other written or verbal statements made by Seller, Seller's representatives, or any real estate licensee. 24. Modification: No provision, term or clause of this Agreement shall be revised, modified, amended or waived except by an instrument in writing signed by Purchaser and Seller. 25. Ri2hts of Others: This Agreement does not create any rights, claims or benefits inuring to any person or entity, other than Seller's successors and/or assigns, that is not a Party to this Agreement, nor does it create or establish any third Party beneficiary to this Agreement. 26. Counteroarts: This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to bean original, but all of which, when taken together, shall constitute one agreement. 27. Headin2s: The titles to the sections and headings of various paragraphs of this Agreement are placed for convenience of reference only and in case of conflict, the text of this Agreement, rather than such titles or headings shall control. 28. Gender: Unless the context otherwise requires, singular nouns and pronouns, when used herein, shall be deemed to include the plural of such nouns or pronouns and pronouns OJ. _.IDe gender shall be deemed to include the equivalent pronoun of the other gender. 29. Force Maieure: Except as provided in Paragraph 17 to this Agreement, no Party shall be responsible for delays or failure of performance resulting from acts of God, riots, acts of 11 war, epidemics, power failures, earthquakes or other disasters, providing such delay or failure of performance could not have been prevented by reasonable precautions and cannot reasonably be circumvented by such Party through use of alternate sources, workaround plans or other means. 30. Attorney Review: Purchaser acknowledges that Purchaser has had the opportunity to consult with its legal counsel regarding this Agreement and that accordingly the terms of this Agreement are not to be construed against any Party because that Party drafted this Agreement or construed in favor of any Party because that Party failed to understand the legal effect of the provisions of this Agreement. 31. Notices: Any notices required to be given under this Agreement shall be deemed to have been delivered when actually received in the case of hand or overnight delivery, or five (5) days after mailing by first class mail, postage paid. All notices to Seller will be deemed sent or delivered to Seller when sent or delivered to Seller's listing broker or agent, at the address set forth in Paragraph 1 or as otherwise provided in writing to the other Party. All notices to Purchaser shall be deemed sent or delivered when sent or delivered to Purchaser or agent at the address set forth in Paragraph 1 or as otherwise provided in writing to the other Party. 32. Successors and Assios. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each ofthe Parties hereto. 33. Attorneys' Fees. Each Party shall pay the fees and costs of its own counsel. In the event a legal proceeding is commenced to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and costs from the other Party. 34. Governin2 Law. This Agreement shall be governed and construed in accordance with the laws of the jurisdiction in which the Property is located. 35. Dispute Resolution: At the request of either Party, any dispute arising under this Agreement shall be submitted to mediation before resorting to arbitration or court action. Mediation fees shall be divided equally and each Party shall bear his or its own attorney's fees and costs. Neither Party may require binding arbitration prior to commencement of court action, although the parties may mutually agree to such arbitration. 36. Deliveries bv Seller. Within seven (7) days after the date of this Agreement, if not already delivered to Purchaser, Seller shall deliver the following to Purchaser: (a) Copies of all licenses, permits, inspection reports, zoning information and Certificates of Occupancy in Seller's possession, ifany. (b) All building plans, diagrams, architect drawings, surveys and construction or architect contracts in Seller's possession, if any. 37. Closine Documents. The following documents shall be executed and delivered at time of closing: (a) Seller Documents: l2 (i) Deed; (ii) Affidavit Regarding Seller; (iii) FIRPT A Affidavit; and (iv) Executed Settlement Statement. (b) Purchaser documents: (i) Affidavit Regarding Purchaser; (ii) Executed Settlement Statement; and (iii) The balance of the Purchase Price due at Closing. 38. State and Local SDecific Provisions: See Addendum 2 39. As-Is Sale Property Condition: (a) The Purchaser understands that Seller acquired the Property by foreclosure, deed-in-lieu of foreclosure, forfeiture, tax sale, or similar process, and consequently, Seller has little or no direct knowledge concerning the condition of the Property. As a material part of the consideration to be received by Seller under the Agreement as negotiated and agreed to by Purchaser and ~eller, Purchaser acknowledges and agrees to accept the Property in "AS IS" condition at the time of closing, including, without limitation, any hidden defects or environmental conditions affecting the Property, whether known or unknown, whether such defects or conditions were discoverable through inspection or not. Purchaser acknowledges that Seller, and its agents, brokers, and representatives have not made, and Seller specifically negates and DISCLAIMS, ANY representations, warranties, promises, covenants, agreements, or guarantees, implied or express, oral or written, with respect to: (i) the physical condition or any other aspect of the Property including, but not limited to: the structural integrity or the quality or character of materials used in construction of any improvements, availability and quantity or quality of water, stability of the soil, susceptibility to landslide or flooding, sufficiency of drainage, water leaks, water damage, mold or any other matter affecting the stability or integrity of the Property; (ii) the conformity of the Property to any zoning, land use or building code requirements or compliance with any laws, statutes, rules, ordinances, or regulations of any federal, state or local governmental authority, or the granting of any required permits or approvals, if any, of any governmental bodies that had jurisdiction over the construction of the original structure, any improvements, and/or any remodeling of the structure; 13 (iii) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property, including redhibitory vices and defects, apparent or non-apparent or latent, that now exist or may hereafter exist and that, if known to Purchaser, would cause Purchaser to refuse to purchase the property; and (iv) the existence, location, size, or condition of any outbuildings or sheds on the property. (b) Mold, mildew, spores and/or other microscopic organisms and/or allergens (collectively referred to in the Agreement as HMold") are environmental conditions that are common in residential properties and may affect the Property. Mold, in some forms, has been reported to be toxic and to cause serious physical injuries, including but not limited to, allergic and/or respiratory reactions or other problems, particularly in young children, elderly persons, persons with immune system problems, allergies, or respiratory problems, and pets. Mold has also been reported to cause extensive damage to personal and real property. Purchaser is advised to thoroughly inspect the Property for Mold. Mold may appear as discolored patches or cottony or speckled growth on walls, furniture or floors, behind walls and above ceilings. Any and all presence of moisture, water stains, mildew odors, condensation, and obvious Mold growth, are all possible indicators of a Mold condition, which mayor may not be toxic. Mold may have been removed or covered in the course of any cleaning or repairing of the Property. Purchaser acknowledges that, if Seller, or any of Seller's employees, contractors, representatives, brokers, or agents cleaned or repaired the Property or remediated the Mold contamination, that Seller does not in any way warrant the cleaning, repairs, or remediation, or that the Property is free of Mold. Purchaser is further advised to have the Property thoroughly inspected for Mold, any hidden defects, and/or environmental conditions or hazards affecting the Property. Purchaser is also advised that all areas contaminated with Mold should be properly and thoroughly remediated. Purchaser represents and warrants that: (A) Purchaser accepts full responsibility and liability for all hazards, and Claims that may result from the presence of Mold in or around the Property; (B) If Purchaser proceeds to close on the purchase of the Property, then Purchaser has inspected and evaluated the condition of the Property to Purchaser's complete satisfaction, and Purchaser is satisfied with the condition of the Property notwithstanding the past or present existence of Mold in or around the Property; and (C) Purchaser has not, in any way, relied upon any representations or warranties of Seller, or Seller's employees, officers, directors, contractors, representatives, brokers, or agents concerning the past or present existence of Mold or any environmental conditions in or around the Property. (c) In the event the Property is affected by an environmental condition either Party may temllnate the Agreement. In the event the Seller decides to sell the Property to the Purchaser and the Purchaser agrees to purchase the Property (as evidenced by Purchaser and Seller proceeding to close) despite the presence of an environmental condition, the Purchaser releases the Seller and the parties related to the Seller described in Paragraph 16 as the indemnified parties "(Indemnified Parties") from any claims 14 arising out of or relating in any way to the environmental conditions of the Property, and Purchaser agrees to also execute an additional general release at closing, in a form acceptable to Seller, related to the environmental condition if Seller so requests. In the event the Purchaser elects not to execute the additional release, Seller may, at the Seller's sole discretion, t~nate the Agreement upon notice given to Purchaser. In the event the Agreement is terminated by either Purchaser or Seller pursuant to this Paragraph 39(c), any Earnest Money Deposit will be returned to the Purchaser. The cost of any environmental report shall be at the sole cost and expense of the Purchaser, unless required to be paid for by the Seller under applicable law. (d) In the event the Seller has received official notice that the Property is in violation of building codes or similar laws or regulations, the Seller may terminate the Agreement or delay the date of closing or the Purchaser may terminate the Agreement. In the event the Agreement is terminated by either Purchaser or Seller pursuant to this Section 39, any Earnest Money Deposit will be returned to the Purchaser. If there is an enforcement proceeding arising from allegations of such violations before an enforcement board, special master, court or similar enforcement body, and neither the Purchaser nor the Seller terminate the Agreement, the Purchaser agrees (A) to accept the Property subject to the violations, and (B) to be responsible for compliance with the applicable code and with orders issued in any code enforcement proceedings, unless otherwise prohibited by applicable law or ordinance. Purchaser agrees to execute for closing any and all documents necessary or required by any agency with jurisdiction over the Property and to resolve the deficiencies as soon as possible after the closing. (e) The closing of this sale shall constitute acknowledgement by the Purchaser that Purchaser had the opportunity to retain an independent, qualified professional to inspect the Property ~d that the condition of the Property is acceptable to the Purchaser at the time of closing. The Purchaser agrees that Seller shall have no liability for any Claims that the Purchaser or the Purchaser's successors or assigns may incur as a result of construction or other defects that may now or hereafter exist with respect to the Property. The cost and expense of any inspection shall be at the sole cost and expense of the Purchaser, unless otherwise prohibited by applicable law or ordinance. (f) The Seller may be exempt from filing a disclosure statement regarding the condition of the Property because the Property was acquired through foreclosure, deed- in-lieu of foreclosure, forfeiture, tax sale, eminent domain or similar process. To the fullest extent allowed by law, Purchaser waives any right to receive a disclosure statement from Seller, and Purchaser agrees to execute a separate waiver, if the law requires the waiver to be in a separate form. 40. Purchaser's Waiver of Important Riehts: (a) by law: The Purchaser further waives the following, to the fullest extent permitted (i) all rights to file and maintain an action against the Seller for specific performance; 15 (ii) right to record a lis pendens against the Property or to record this Agreement or a memorandum thereof in the real property records; (iii) right-to invoke any equitable remedy that would prevent the Seller from conveying the property to a third party purchaser; (iv) any claims arising from the adjustments or prorations or errors in calculating the adjustments or prorations that are or may be discovered after closing unless such claims are material and purchaser notifies Seller in writing of such claims within thirty (30) days of the closing date; (v) any remedy of any kind that the Purchaser might otherwise be entitled to at law or equity (including, but not limited to, rescission of the Agreement), except as expressly provided in this agreement; (vi) any right to a trial by jury in any litigation arising from or related in any way to this Agreement; (vii) any right to avoid the sale of the Property or reduce the price or hold the Seller liable for any claims arising out of or related in any way to the condition, construction, repair, or treatment of the Property, or any defects, apparent or latent, that may now or hereafter exist with respect to the Property; (viii) any claims arising out of or relating in any way to encroachments, easements, bOWldaries, shortages in area or any other matter that would be disclosed or revealed by a surveyor inspection of the Property or search of public records; and (ix) any claims arising out of or relating in any way to the square footage, size, or location of the Property, or any infonnation provided on the multiple listing service, or brochures or web sites of Seller or Seller's agent or broker. 41. Baf2ain Sale: Charitable Donation: The Parties agree that if the Property is being donated to the Purchaser the Purchase Price shall be detennined based upon the bargain sale rules of the IRC, each party shall determine the extent to which the structure of the transaction affects the tax liability, if any of each such Party. The parties agree further to make any necessary changes to this Agreement to conform to the bargain sale rules of the IRC. 42. Authority: Each Party has full power and authority to enter into this Agreement and to perform all its obligations hereunder, and has taken all action required by law, its governing instruments, or otherwise to authorize the execution, delivery, and performance of this Agreement and all the deeds, agreements, certificates, and other documents contemplated herein. This Agreement has been dilly executed by and is a valid and binding agreement, enforceable in w'Gordance with its terms, except as enforceability may be limited by equitable principles or by the laws of bankruptcy, insolvency, or other laws affecting creditors' rights generally. 16 43. Certificate of Occupancy. In the event the municipality or agency of the municipality in which the Property is located requires the delivery of a certificate of occupancy prior to the transfer to title to the Property or for the occupancy of the Property by Purchaser, the Parties agree that the Seller shall not be obligated to provide any such certificate of occupancy as a condition of the Closing. Purchaser agrees to accept the Property without such certificate of occupancy and to be responsible for all costs relating to the securing of such certificate. 44. Condominium or Planned Unit Development. If the Property is a condominium or planned unit development or co-operative, unless otherwise required by law, Purchaser, at Purchaser's own expense, is responsible for obtaining and reviewing the covenants, conditions and restrictions and bylaws of the condominium, or planned unit development or cooperative within ten (to) days of the Effective Date of this Agreement. Seller agrees to use reasonable efforts, as determined at Seller's sole discretion, to assist Purchaser in obtaining a copy of the covenants, conditions and restrictions and bylaws. Purchaser will be deemed to have ,accepted the covenants, conditions and restrictions and by laws if Purchaser does not notify Seller in writing, within fifteen (15) days of the effective Date of this Agreement, of Purchaser's objection to the covenants, conditions and restrictions and/or bylaws. 45. Broker Commissions. Seller shall pay any real estate commissions due the listing agent on the Property ("Broker") based on the Purchase Price in the amount of $637.50. Purchaser represents that Purchaser is not a real estate licensee and that any real estate licensee representing Purchaser, if any, is not related to or affiliated with Purchaser. The Parties acknowledge that other than the Broker, there are no other real estate licensees engaged by either Party in connection with this transaction. 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. SELLER: COUNTRYWIDE HOME LOANS Inc, a Texas Limited Partnership, as servicing agent and attorney in fact for HSBC Bank USA, National Association, as Trustee for ACE Securities Corp. Home Equity Loan Trust, Series 2007-WM1 Asset~Backed Pass- Through Certificates Series 2007-WM1 By: Its: PURCHASER: Collier County, A Political Subdivision of the State of Florida *See substitute si20ature pa2e attached hereto* 18 Project: Neighborhood Stabilization Program Folio Number: 36436800000 Property Address: 5031 32nd Ave SW, Naples, 34112 Document: Purchase and Sale Agreement SUBSTITUTE SIGNATURE PAGE Date property acquisition approved by BCC: March 24, 2009, Item 10F AS TO PURCHASER: DATED: h/t~/D'1 , ATTESl~. L:i),~ .'1 DWI~f.!r):.. BROC..~>,. Clerk k- ;~, . :/.,' -': '~/) c: I~l If" ,~,. ,t.tatiJ I to '.' ." . <Jlerk s1~tUt'1l/~H",' , '.;-- "" . . '~ '1.')11 '. I' t , D~! :!:' ~ BOARD OF OUNTY COMMISSIONERS COLLIE UNTY, FlOR~A _ BY: ~ 3'~ Donna Fiala, Chairman Approved as to form and legal sufficiency: ~~~\~ Jenm r B. WhIte Assistant County Attorney EXHIBIT" A" Le2al DescriDtion of ProDerty Folio #: 36436800000 Lot 18, Block 238, GOLDEN GATE UNIT 7, according to the Plat thereof as recorded in Plat Book 5, Pages 135 through 146, inclusive, Public Records of Collier County, Florida. Exhibit A EXHIBIT "B" Personal PropertY NONE, UNLESS SPECIFICALLY IDENTIFIED BELOW: Exhibit B