PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of [insert date] (this "Agreement"), is entered into
by and between [insert full legal name of the seller] ("Seller"), and [insert full legal name of the
seller] (“Buyer"). The foregoing date is the "Effective Date" for purposes of this Agreement.
In consideration of this Agreement, Seller and Buyer agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, the following
property (collectively, the "Property"):
1.1. Real Property. The "Real Property" is collectively, (1) the Property Home (the
"Property") located at [insert address], Minnesota and legally described on the attached
Exhibit A; (2) all buildings, structures, facilities, utilities, installations and other
improvements constructed or located on the Property and all fixtures attached thereto
(collectively, the "Buildings"); and (3) all easements and rights benefiting or appurtenant to
the Land.
1.2. Permits, Warranties, and Plans. Seller’s interest in the following items, if any: (i) all
permits and licenses relating to the ownership of the Property (collectively, the “Permits”);
(ii) all warranties and guaranties relating to the ownership of the Property (collectively, the
“Warranties”); and (iii) any as-built drawings, site plans, and architectural plans and
specifications for the Landlord and Building, as may be in the possession of Seller
(collectively, the “Plans”).
2. Purchase Price and Manner of Payment. The total purchase price (the "Purchase Price") of the
Property shall be Two Hundred and Ninety-Seven Thousand Dollars ($297,000.00).
2.1 The Seller acknowledges to having received Ten Thousand Dollars ($10,000) from the
Buyer, and an additional Ten thousand Six Hundred Dollars received in the past four (4)
years as tenancy fees.
2.2 The buyer shall obtain a facility from [insert the name of the bank financing the purchase
and details] in order to pay the balance of the purchase price, which is Two Hundred and
Seventy-Six Thousand Dollars ($276,000), The balance shall be paid on the closing of this
agreement to the Sellers Bank account domiciled at [insert details of your bank and account
number]
3. Inspection Period. Buyer acknowledges and agrees that they do not have a right to inspect the
property since they have been in possession of the said property for the last four (4) years.
4. Contingencies.
4.1 Buyer’s Contingencies. The obligation of the Buyer to perform under this Agreement is
contingent upon the timely occurrence or satisfaction of each of the following conditions:
4.1.1 Seller shall have delivered all of Seller’s Closing Documents;
4.1.2 the representations and warranties of Seller in this Agreement shall be true
and correct in all material respects through and including the date of Closing;
4.1.3 Title to the Property shall be delivered in accordance with the terms and
conditions of this agreement;
4.1.4 no breach of this Agreement by Seller is in effect; and
The contingencies in this Section 4.1 are solely for the benefit of, and may at any time be waived by,
the Buyer.
4.2 Seller’s Contingencies. The obligation of the Seller to perform under this Agreement is
contingent upon the timely occurrence or satisfaction of each of the following conditions:
4.2.1 Buyer shall have delivered all of Buyer’s Closing Documents;
4.2.2 the representations and warranties of Buyer shall be true and correct in all
material respects through and including the date of Closing;
4.2.3 Buyer shall have paid the Purchase Price; and
4.2.4 there shall be no breach of this Agreement by Buyer.
The contingencies in this Section 4.2 are solely for the benefit of, and may at any time be waived by,
the Seller. In the event any of the foregoing contingencies are not satisfied on or before the time
specified therein, then Seller may terminate this Agreement.
5. Closing. The closing (the "Closing") of the purchase and sale contemplated by this Agreement shall
take place on [insert date] (the “Closing Date”) or such earlier date as mutually agreed to in writing
by the parties hereto. Seller agrees to deliver title of the Property to Buyer on the Closing Date
subject to, and in accordance with, this Agreement and otherwise in its "AS IS", "WHERE IS" and
"WITH ALL FAULTS" condition.
5.1. Seller’s Closing Documents. On the Closing Date (unless set forth to the contrary below),
Seller shall deliver, or caused to be delivered, to Buyer the following (collectively, "Seller’s
Closing Documents"), all in form and content reasonably satisfactory to Seller and Buyer:
5.1.1. Deed. A Limited Warranty Deed, in the form attached hereto as Exhibit B,
conveying the Real Property to Buyer, free and clear of all encumbrances, except the
Permitted Encumbrances hereinafter defined.
5.1.2. Assignment of Permits, Warranties, and Plans and Bill of Sale. An Assignment
of Permits, Warranties, and Plans and Bill of Sale, conveying Seller’s interest therein
and to the Personal Property, if any, to Buyer, in the form attached hereto as Exhibit
C (the “General Assignment”).
6. Prorations. Seller and Buyer agree to the following prorations and allocation of costs regarding
this Agreement:
6.1. Title Insurance and Closing Fee. Seller will pay for search and exam fees charged by the Title
Company and Buyer will pay for the premiums required for the issuance of a standard and
customary owner’s title insurance policy (including any endorsements) desired by Buyer. Seller and
Buyer shall each pay one-half (1/2) of
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all closing fees and charges imposed by the Title Company or any closing agent designated by the
Title Company.
6.2.
Deed Tax. Seller shall pay all state deed tax regarding the Limited Warranty Deed and the
memorandum of the Lease-Back Lease to be delivered by Seller under this Agreement and recorded
as part of the Closing.
6.3.
Mortgage Tax. Buyer shall pay all mortgage registry tax due in connection with Buyer’s mortgage and
any other fees or charges arising from Buyer’s financing.
6.4.
Recording Fees. Seller will pay the cost of recording the Limited Warranty Deed and the
memorandum of Lease-Back Lease and all other documents contemplated by this Agreement that
are required to be recorded (other than recording fees and taxes arising from the recording of
Buyer’s mortgage).
6.5.
Real Estate Taxes and Special Assessments. To the extent required by applicable Minnesota law,
Seller shall pay on or before Closing all of the general real estate taxes and installments of special
assessments due and payable prior to Closing and for any period prior to commencement of the
tenant’s obligations to commence payment under the Lease-Back Lease. Without limiting the
foregoing, in all events Seller shall pay all real estate taxes with respect to the Property of any sort
due on or prior to Closing if and to the extent necessary so that the owner’s title insurance policy to
be issued to Buyer at the Closing insures Buyer against any real estate taxes, except those not yet
due and payable as of the Closing. After Closing Seller shall pay, as tenant under the Lease-Back
Lease, all general real estate taxes and installments of special assessments levied against the Real
Property in accordance with the terms of the Lease-Back Lease.
6.6.
Base Rent. On the Closing Date, Seller shall pay the Base Rent (as such term is defined in the Lease-
Back Lease) under the Lease-Back Lease for the period commencing on the Closing Date and ending
on the last day of the first full calendar month following the Closing Date, which amount Seller may
pay as a credit against the Purchase Price to be paid by Buyer at Closing.
6.7.
Other Costs. Seller shall pay all other operating costs of the Property in the ordinary course of its
business and, if such costs are payable after Closing, Seller shall pay the same, whether as Seller
hereunder or as tenant under the Lease-Back Lease in accordance with the terms thereof.
6.8.
Attorneys’ Fees. Each of the parties will pay its own attorneys’ fees, except that a party defaulting
under this Agreement or any one or more of Seller’s Closing
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Documents or Buyer’s Closing Documents will pay the reasonable attorneys’ fees and court costs
incurred by the nondefaulting party to enforce its rights hereunder.
6.9.
Brokers’ Fees. Seller shall pay all fees, commissions, expenses and other amounts due the Broker (as
defined below) arising from the transactions contemplated by this Agreement in accordance with a
separate written agreement.
7. Representations and Warranties by Seller. Seller shall indemnify Buyer from any expense, cost,
damage or loss suffered by Buyer to the extent caused by the breach by Seller of any of the
representations and warranties set forth in this Agreement, but only if Buyer first has Actual
Knowledge of such breach after Closing. To the extent Buyer has Actual Knowledge prior to Closing
of any breach by Seller of any of its representations and warranties set forth in this Agreement,
Buyer’s sole right and remedy will be to either
7.1. Except as herein expressly stated, Buyer is purchasing the Property based upon its own
investigation and inquiry and is not relying on any representations or warranties of Seller or other
any party and agrees to accept and purchase the Property "AS IS", "WHERE IS" and "WITH ALL
FAULTS", subject to the conditions of examination herein set forth and the express representations
and warranties herein contained.
7.2. Seller represents and warrants to Buyer now and on the Closing Date as follows:
7.2.1. Existence; Authority. Seller has the requisite power and authority to enter into and perform its
obligations under this Agreement and Seller’s Closing Documents. Such documents have been
and/or will be duly authorized by all necessary action; such documents are and/or will be valid and
binding obligations of Seller, and are enforceable in accordance with their respective terms.
7.2.2. Third Party Consents. No authorizations, consents or approvals of, or filings with, any
governmental authority or any other third party is required with respect to Seller for the execution
and delivery of this Agreement and the Seller Closing Documents, or the performance of its
obligations hereunder or thereunder other compliance with the terms of that certain Credit
Agreement by and between Seller and Seller’s Lender with respect to the performance of certain
obligations of Seller hereunder, which Seller covenants will be obtained prior to Closing.
7.2.3. Leases. The Property is not subject to any lease, sublease or similar occupancy agreement
other than the Leases.
7.2.3. Bankruptcy. No petition in bankruptcy, insolvency, reorganization or rearrangement under any
bankruptcy or insolvency law has been filed by or against Seller; no action has been commenced for
the appointment of a trustee or receiver of Seller or any of its property; and Seller is not insolvent
and has not made an assignment for the benefit of its creditors.
7.2.10. Purchase Rights. No person or entity has any right or option (or right of first offer or right of
first refusal) to purchase all or any portion of the Property.
7.2.11 No Default. Seller has not received any written notice stating that either or both Seller or the
Property are currently in default beyond applicable cure periods under, or with respect to, any
recorded documents affecting or constituting a lien or encumbrance on the Property.
8. Representations and Warranties by Buyer. Buyer shall indemnify Seller from any loss suffered by
Seller to the extent caused by the breach by Buyer of any of the representations and warranties set
forth in this Section 8 if such breach is discovered after Closing. The representations and warranties
of Buyer contained in, or required by, this Agreement must be true now and on the Closing Date as if
made on the Closing Date. Buyer represents and warrants to Seller as follows:
8.1. Existence; Authority. Buyer has the requisite power and authority to enter into and perform its
obligations under this Agreement and Buyer’s Closing Documents, and such documents have been
and/or will be duly authorized by all necessary action; such documents are and/or will be valid and
binding obligations of Buyer, and are enforceable in accordance with their terms.
8.3. Bankruptcy. No petition in bankruptcy, insolvency, reorganization or rearrangement under any
bankruptcy or insolvency law has been filed by or against Buyer; no action has been commenced for
the appointment of a trustee or receiver of Buyer or any of its property; and Buyer is not insolvent
and has not made an assignment for the benefit of its creditors.
8.4. Third-Party Consents. No authorizations, consents or approvals of, or filings with, any
governmental authority or any other third party is required with respect to Buyer for the execution
and delivery of this Agreement and its Closing Documents or the performance of its obligations
hereunder or thereunder.
9. Condemnation.
9.2. Condemnation. If eminent domain proceedings are threatened or commenced against all or any
substantial part of the Real Property, Seller shall promptly give notice to Buyer, and Buyer shall have
the right, at its option by giving notice to Seller within thirty (30) calendar days after the date of
Seller’s condemnation notice to Buyer, to either (i) terminate this Agreement, in which event the the
deposit will be returned to Buyer; or (ii) proceed to Closing and Seller will assign to Buyer all rights to
appear in and receive any award from such proceedings. If Buyer fails to timely give such notice to
Seller, then Buyer is deemed to have elected option (i). For purposes of this Section 9.2 a
"substantial part" shall mean a portion of the Property which, if taken in a condemnation, will, in
Seller’s reasonable opinion, materially interfere with its use, occupancy and quiet enjoyment of the
Property, or which in Buyer’s reasonable opinion, is likely to materially reduce the value of the
Property. If eminent domain proceedings are threatened or commenced against all or any or of the
Real Property that is less than a substantial part thereof, the parties will proceed to Closing and
Seller will assign to Buyer all rights to appear in and receive any award from such proceedings.
10. Assignment. Neither party may assign its rights under this Agreement without the prior written
consent of the other party, except that Buyer may assign its rights hereunder to a single asset limited
liability company controlled by Buyer, Buyer’s principals, or Buyer’s subsidiary. No assignment will
relieve the assigning party of its obligations under this Agreement. Notwithstanding the foregoing to
the contrary, Buyer may elect to assign its rights under this Agreement to a wholly-owned limited
liability company created for such purpose by Buyer, which will take title to the Property and
execute and deliver the Buyer’s Closing Documents.
11. Survival. All of the terms of this Agreement and warranties and representations herein contained
shall survive and be enforceable after the Closing for a period of one (1) year unless a different
period of time is stated in this Agreement or is required by law; provided, however, that if a notice of
claim is made in writing within said one (1) year period, the related representations and warranties
shall survive until the full and final resolution of such claim.
12. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be
deemed given if addressed to the party intended to receive the same, at the address of such party
set forth below, (i) when delivered at such address by hand or by nationally recognized, reputable
overnight courier, or (ii) two (2) days after its deposit in the United States mail as certified mail,
return receipt requested. Any party may change its address for the service of notice by giving notice
of such change ten (10) days prior to the effective date of such change. The attorneys for the
respective parties hereto have the authority to send any notice that may be sent by any party
hereto.
If to Seller
[insert details of the seller]
If to Buyer:
[insert the details of the buyer]
13. Remedies.
13.1. Buyer Defaults. If Buyer defaults under this Agreement, and, if the default is not the failure to
pay the Purchase Price at the Closing, and Buyer fails to cure such default within fifteen (15)
calendar days (or such reasonably longer period of time if such default is incapable of cure within
such fifteen-day period) after receipt of Seller’s written notice to Buyer of the default, Seller will
have the right to terminate this Agreement after written notice of cancellation as provided under
Minnesota Statutes Section 559.21. Upon such termination, Seller will retain the Deposit as
liquidated damages, time being of the essence of this Agreement. Seller and Buyer agree that Seller’s
economic detriment resulting from the removal of the Property from the market and the carrying
and other costs incurred thereafter and associated therewith, including any costs to be incurred by
Seller in order to satisfy the conditions of escrow set forth herein, are impracticable or extremely
difficult to ascertain. Seller and Buyer agree that the Deposit is a reasonable estimate of such
damages in the event of Buyer’s failure to perform according to the provisions of this Agreement.
Such payment is intended to be liquidated damages and not intended to be a forfeiture or penalty.
The termination of this Agreement and retention of the Deposit will be the sole remedy available to
Seller for default by Buyer, and Buyer will not be liable for damages or specific performance. Seller
and Buyer acknowledge and agree that any liability of Buyer to Seller under the indemnities
provided for in Sections 3.1.3 and 8 hereof will not be limited by these liquidated damages provision.
13.2. Seller Defaults. If Seller defaults under this Agreement prior to Closing, and Seller fails to cure
such default within fifteen (15) calendar days (or such reasonably longer period of time if such
default is incapable of cure within such fifteen-day period) after receipt of Buyer’s written notice to
Seller of the default, Buyer shall, as its sole and exclusive remedy, either: (a) terminate this
Agreement and recover the Deposit, or (b) seek specific performance of this Agreement by
commencing suit therefor within three (3) months after the date of Seller’s default.
14. Documents Provided as Courtesy. To the extent that Seller has made available to Buyer
documents under this Agreement, contracts, permits, warranties and plans), Seller has done so
solely as a courtesy to Buyer and without warranty or representation of any kind except as expressly
set forth in this Agreement. Buyer acknowledges and agrees that Seller is not responsible for the
scope of any documents prepared by third parties, nor the accuracy of the information provided
therein, and Buyer hereby expressly waives all claims against, and releases Seller from, all claims,
damages, and expenses that Buyer may incur in connection therewith. Seller advises Buyer to
perform its own investigations with respect to all matters concerning the Property and not to rely
upon any document prepared by any third party and made available to Buyer by Seller.
15. Operation Prior to Closing. During the period from the Effective Date to the Closing Date (the
"Executory Period"), Seller shall operate and maintain the Property in the ordinary course of
business in accordance with prudent, reasonable business standards, including the maintenance of
adequate liability insurance and property insurance against loss by fire, windstorm and other
hazards, casualties and contingencies, including vandalism and malicious mischief. Seller shall
execute no contracts, leases or other agreements regarding the Property during the Executory
Period, other than in the ordinary course of business, without the prior written consent of Buyer,
which consent will not be unreasonably withheld or delayed.
16. Confidentiality and Non-Publication. Except as otherwise required by applicable law, public filing
or stock exchange rule, neither Buyer nor Seller shall, and will not permit any of its respective
affiliates, representatives or advisors to, issue or cause the public announcement with respect to the
economic terms of this Agreement without the consent of the other party, which consent shall not
be unreasonably withheld, conditioned, or delayed. Unless otherwise agreed to in writing by Seller,
and except as may be required by applicable laws and regulations, public filings, or stock exchange
rule, Buyer agrees to keep this Agreement and all confidential information provided by Seller to
Buyer under this Agreement confidential and not to disclose or reveal any such information to any
person other than its representatives or Lender who need to know the same in connection with this
Agreement and have been directed to observe the terms hereof. Buyer will be responsible for any
breach of this section by it or its representatives or Lender. Notwithstanding the foregoing to the
contrary, Buyer and Seller agree that nothing in this Agreement prohibits Buyer from discussing the
Property or Seller and Seller’s financial condition with third parties on a need-to-know basis as part
of Buyer’s due diligence activities under this Agreement or in connection with Buyer’s financing of,
or other capital transactions concerning, the purchase of the Property.
17. Business Day; Calculation of Time. A "business day" shall be any day other than a Saturday,
Sunday or legal holiday in the States of Minnesota. When any period of time stated in this
Agreement would end on a day that is not a business day, such period shall be deemed to end on
the next business day.
18. Limitation of Liability. Under no circumstances shall either Seller or Buyer be liable to the other
under any theory of tort, contract, strict liability or other legal or equitable theory for any punitive,
special, incidental, indirect, or consequential damages (each of which is excluded by agreement of
the parties regardless of whether or not any of the parties have been advised of the possibility of
such damages).
19. Counterpart/Electronic Execution. This Agreement may be executed in one or more
counterparts, each of which, when so executed and delivered, shall be deemed to be an original and
all of which, taken together, shall constitute one and the same agreement. Facsimile signatures or
PDF signatures transmitted by attachment to e-mail shall be deemed to have the same full force and
effect as original signatures.
20. Miscellaneous. The paragraph headings or captions appearing in this Agreement are for
convenience only, are not a part of this Agreement, and are not to be considered in interpreting this
Agreement. This written Agreement, along with the Site Access Agreement, constitute the complete
agreement between the parties and supersedes any prior oral or written agreements between the
parties regarding the Property. There are no verbal agreements that change this Agreement, and no
waiver of any of its terms will be effective unless in writing executed by the parties. This Agreement
binds and benefits the parties and their successors and assigns. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Minnesota without giving
effect to its principles or rules of conflicts of laws. Time is of the essence with respect to this
Agreement and the respective time periods set forth herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as a deed as of the day and year
first above written.
EXECUTED by Seller:
1. ………………………………………………
2. ……………………………………………………………
Signature
………………………………………….
[Witness]
…………………………………….
EXECUTED on behalf of Buyer by:
1. ………………………………………………
2. ………………………………………………………
Signature
……………………………………….
[Witness]
………………………………………..
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