COMMERCIAL PURCHASE AND SALE AGREEMENT
1. Agreement. _________________ AND _________________ AGREE TO SELL
________________________ at location __________________________________.
2. Property. Subject to and upon the terms set forth in the Agreement, Buyer agrees to
buy and Seller agrees to sell the real property (the “Sale Property”) described on Exhibit “A”
attached hereto and by this reference made a part hereof.
3. Opening of Escrow. Seller and Buyer shall open Escrow with Escrow Agent
promptly after their execution hereof. For purposes hereof, the term “Opening of Escrow” shall
be _________________.
4. Close of Escrow. Consummation of the sale provided for herein (the “Closing” or
“Close of Escrow”) shall occur through the Escrow Agent on _________________. At or before
the Closing, each party shall execute and deliver such documents and perform such acts as are
provided for herein or as are necessary to consummate the sale contemplated hereunder.
5.
Purchase Price. The purchase price for the Sale Property shall be
_________________ and No/100 Dollars ($_________________)(the “Purchase Price”),
payable by Buyer as follows:
(a)
Earnest
Money.
_________________
and
No/100
Dollars
($_________________) as earnest money (the “Earnest Money”), shall be deposited by
Buyer in Escrow upon the execution of this Agreement and upon expiration of the
Feasibility Period shall become non-refundable;
(b) Cash Payment at Closing. _________________and No/100 Dollars
($_________________) in cash or certified funds due at the Closing; and
(c) Balance. _________________and No/100 Dollars ($_________________) to
be paid in immediate available funds to Escrow Agent.
6. Earnest Money. If the sale is consummated in accordance with this Agreement, the
Earnest Money shall be applied by Escrow Agent to the Purchase Price due from Buyer at Close
of Escrow.
7. Feasibility Period. Until _________________ (the “Feasibility Period”), Buyer shall
have the right, at its sole and absolute discretion, to terminate this Agreement by giving written
notice thereof to Escrow Agent and Seller. In the event Buyer provides such timely notice, this
Agreement shall be terminated, Escrow Agent shall return to Buyer the Earnest Money together
with all earnings thereon and neither party shall have any further obligation to the other. If Buyer
fails to give such timely written notice to terminate, then Buyer shall be deemed to have waived
its right to terminate pursuant to this paragraph. and the Earnest Money shall become nonrefundable.
8. Title Report and Examination. Within ten (10) days from the Opening of Escrow,
Seller shall cause Escrow Agent to provide to Buyer a preliminary title report (the “Title
Report”) showing the condition of title to the Sale Property as disclosed by the issuing title
company’s search of the real estate records of County where the Sale Property is located,
together with legible copies of all instruments and documents referred to in the Title Report and
pertaining to the Sale Property. Buyer shall have until the expiration of the Feasibility Period in
which to notify Seller and Escrow Agent in writing of any objections to such title or to any of the
terms or conditions of the underlying instruments and documents (“Buyer’s Objection
Notification”). If Buyer fails to object in writing to a title exception within the respective time
period for objection provided for herein, Buyer shall be deemed to have approved such
exception(s) as permitted encumbrances (“Permitted Encumbrances”).
9. Termination of Agreement and Escrow. If this Agreement is terminated by Buyer or
Seller as permitted by any provision of this Agreement, Escrow Agent shall return to Buyer the
Earnest Money, and Buyer and Seller shall have no further obligation pertaining to the purchase
or sale of the Sale Property. The contingencies set forth in paragraphs 7 and 8 above are for the
sole benefit of Buyer, and Buyer, in its sole discretion, may at any time in writing waive any one
or more of the contingencies applicable to it in which case the waived contingency or
contingencies shall be deemed to be fully satisfied. Should Buyer default in its obligation to
complete the purchase of the Sale Property pursuant to the terms of this Agreement subsequent
to the expiration of the Feasibility Period, Seller shall, as its sole remedy, retain the Earnest
Money as liquidated damages to Seller for such breach by Buyer, and Buyer and Seller shall
have no further obligation pertaining to the purchase or sale of the Sale Property.
10. Deed. At the Closing, Seller shall deliver to Escrow Agent Seller’s Special Warranty
Deed, in form and content acceptable to Buyer, conveying the Sale Property to Buyer, as grantee,
subject only to the Permitted Exceptions, together with an Affidavit of Property Value pertaining
to the conveyance of the Sale Property contemplated by this Agreement.
11. Title Insurance. At the closing, Seller shall cause Escrow Agent to furnish Buyer
with a standard owner’s title insurance policy issued by Escrow Agent in the amount of the
Purchase Price, insuring that fee simple title to the Sale Property is held by Buyer, subject only
to (i) those items which Buyer has not objected to or has waived pursuant to the paragraph
entitled Title and Survey Review Contingency, and (ii) the printed exceptions contained in the
Title Report. All charges of Escrow Agent for or otherwise related to the issuance of such
standard owner’s policy shall be the responsibility of Seller. At Buyer’s election, the Buyer may
order from the Escrow Agent an ALTA extended coverage owner’s policy. The Buyer shall be
responsible for: (i) the payment of the cost differential of the premium between the ALTA
extended owner’s coverage and the standard owner’s coverage premium; and (ii) for all other
costs and expenses incurred in obtaining the extended coverage.
12. Right of Entry. Buyer and its engineers and agents shall have access to the Sale
Property at reasonable times after Opening of Escrow for the purpose of conducting geological,
soil, drainage, engineering, building inspection, environmental tests and other studies and
surveys which Buyer, in its reasonable discretion, deems necessary to determine whether the
Sale Property is suitable for Buyer’s contemplated use. Buyer shall thereafter restore the Sale
Property to the condition that existed prior to performing such tests and studies. Buyer shall
defend, indemnify and hold Seller harmless for, from and against any claims, demands, actions,
liabilities and obligations (including, but not limited to, mechanics’ and materialmen’s liens)
arising from any exercise of the rights granted under this paragraph, which indemnification
obligation shall survive the termination or cancellation of this Agreement.
13. Broker’s Commission. Buyer and Seller each represent to the other that it has not
dealt with any other real estate broker other than the following who are intitled to a commission
in the amount of _________________ or any other party entitled to a commission, broker’s fee
or other compensation in connection with the sale of the Sale Property by Seller to Buyer. Buyer
and Seller each agree to indemnify, protect, defend and hold the other harmless for, from and
against any expense, including, without limitation, attorneys’ and accountants’ fees, claims,
actions, suits or demands for payment of any commission, finder’s fee or other sum initiated by
any broker, commission agent or other person which such party or its representatives has
engaged or retained or with which it has had discussions concerning the transaction
contemplated by this Agreement Notwithstanding anything in this Agreement to the contrary, the
representations and indemnities set forth in this paragraph shall survive any termination of this
Agreement.
14. Possession. Possession of the Sale Property shall be delivered to Buyer at Close of
Escrow.
15. Sale Property Condition.
(a) Except as otherwise expressly set forth in this Agreement, Buyer acknowledge
represents, warrants and agrees: (i) that Buyer is purchasing the Sale Property and any
improvements now or hereafter made thereto in “AS IS” and “WHERE IS” condition, with all
faults without any warranty expressed or implied whatsoever: (ii) that Buyer has made or shall
make prior to any Closing its own examination, inspection and investigation of the Sale Property,
all improvements, if any, located thereon, the subsurface of the Sale Property and all soil,
engineering, environmental and other conditions and requirements of the Sale Property and any
personal property; (iii) that Buyer has or shall investigate all zoning. building and governmental
regulatory matters pertaining to the Sale Property; (iv) Buyer is entering into this Agreement and
is purchasing the Sale Property based upon such inspections and investigations and not in
reliance on any statements, representations, inducements or agreements of Seller in connection
with the Sale Property. its zoning. its fitness or merchantability for any particular use or purpose,
availability of water or utilities soil or environmental conditions, encroachments which would be
disclosed by either an inspection of the Sale Property or a survey. flooding and such other
matters as might be disclosed or determined by an examination of the Sale Property and
independent inquiry with respect thereto; (v) that any engineering data. soils reports or other
information that Seller or any other party may have delivered to Buyer pertaining to the Sale
Property is furnished without any representation or warranty whatsoever; and (vi) that Seller
shall have no responsibility, liability or obligation respecting the Sale Property subsequent to
Closing. Buyer shall make its own investigation regarding the presence of any toxic waste or
hazardous materials on the Sale Property.
(b) Except as set forth in this Agreement. Seller hereby disclaims any warranty, guaranty
or representation, oral or written. past, present or future. of. as to or concerning: (i) the nature or
condition of the Sale Property. including, without limitation, the water, soil and geology, and the
suitability thereof and of the Sale Property for any and all activities and uses which Buyer may
elect to conduct thereon. and the existence of any environmental hazards or condition thereon
(including the presence of asbestos) or compliance with applicable laws. rules or regulations: (ii)
the nature and extent of any right-of-way, lease. possession. lien. encumbrance, license,
reservation, condition or otherwise; (iii) the compliance of the Sale Property or its operation with
any laws, ordinances, or regulations of any government or other body: and (iv) the profitability
or loss or expense relating to the Sale Property and the business conducted in connection
therewith. Except as set forth in this Agreement, Buyer shall rely solely on its own investigation
of the Sale Property and not on any information provided or to be provided by Seller.
16. Nominee. Seller hereby agrees that Buyer may only assign all of its right, title and
interest in, to and under this Agreement to a nominee that is approved by Seller, in which event
all references to Buyer in the documents to be delivered at the Close of Escrow shall be to the
nominee. Such approval by Seller shall not be unreasonably withheld.
17. Time of Performance. If the date for performance of any obligation hereunder or
the last day of any time period provided for herein shall fall on a Saturday, Sunday or legal
holiday, then said date for performance or time period shall expire on the first day thereafter
which is not a Saturday, Sunday or legal holiday. Except as may otherwise be set forth herein,
any performance provided for herein shall be timely made and completed if made and completed
no later than 5:00 P.M. (Phoenix time) on the day for performance.
18. Counterparts. This Agreement may be executed in any number of counterparts, all
such counterparts shall be deemed to constitute one and the same instrument, and each of said
counterparts shall be deemed an original hereof.
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SELLER
_______________________________
BUYER
_______________________________