Purchase & Sale Agreement
Document 1347B LeapLaw.com
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT is entered into as of the ____
of_________, 20__ (the “Agreement’) by and between [NAME OF SELLERS], as property
owners of Real Property defined below (hereinafter collectively referred to as "Seller"), and
[NAME OF BUYER] or his nominee (hereinafter referred to as "Buyer"), having a mailing
address of [ADDRESS].
WHEREAS, Seller owns certain real property and certain improvements constructed
upon such real property commonly known as [STREET ADDRESS], located in
[CITY/STATE]. Said real property is more particularly described in Exhibit A (the “Real
WHEREAS, Seller desires to sell said Real Property and the improvements
constructed upon said Real Property and Buyer desires to buy said Real Property and said
improvements constructed upon said Real Property upon the terms and conditions set forth
in this Agreement.
IN CONSIDERATION of the respective agreements and mutual promises
hereinafter set forth, Seller and Buyer hereby agree as follows:
1. Property Included in Sale.
Seller hereby agrees to sell, assign and convey to Buyer, and Buyer hereby agrees to
purchase from Seller, the following:
1.1 That certain parcel of land commonly known as [STREET ADDRESS],
located in [CITY/STATE], referenced as [LOT/PLAT], and more particularly described on
Exhibit A, the Real Property; and
1.2 All of the interest of Seller in any buildings, improvements, fixtures and all
operating assets relating to that certain Real Property (the “Building”). Included in the
Purchase Price is the compensation to be paid by the Buyer to the Seller for all personal
property used in the operation of the Building, any furniture or furnishings located in the
Building, as well as any accounts receivable and all general intangibles or any variation
thereof, including, without limitation, the right, title and interest in any intellectual property
of Seller, its web page, domain names and licenses in regard to the web page and domain
names, telephone numbers, guarantees, warranties, permits, and licenses similarly owned
and/or used by Seller in connection with the Building (collectively, the "Improvements").
All of the items referred to in Sections 1 (a) and (b) above are hereinafter
collectively referred to as the "Property".
Contemporaneously with the execution and delivery of this Agreement, Buyer paid
______________ ($________) DOLLARS to Seller (the "Deposit") which is held in escrow
by [NAME OF ESCROW AGENT], who shall deposit such amount in a non-interest
bearing account to secure Buyer’s performance hereunder. Escrow Agent shall hold the
Deposit pursuant to and in accordance with this Agreement.
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3. Purchase Price.
3.1 The Purchase Price of the Property is __________ and 00/100 ($________)
DOLLARS (the "Purchase Price").
3.2 The Purchase Price shall be paid as follows:
(1) The Deposit of ___________ and 00/100 ($1_____) DOLLARS
shall be applied against the Purchase Price at the closing of the purchase and sale
contemplated hereunder; and
(2) At Closing, Buyer shall pay by wire transfer of immediately
available funds an amount equal to the difference between the Purchase Price and (a) the
Deposit, and (b) an amount equal to the sum of any other credits accruing to Buyer and/or
any amounts due to Seller under the various provisions of this Agreement hereinafter set
forth (the "Remaining Cash Payment").
4. Deed of Conveyance; Transfer of Real Property and Improvements.
To enable Seller to make conveyance as herein provided, Seller may, at the time
of Closing, use the purchase money or any portion thereof to clear title of any or all
encumbrances or interest, provided that all instruments so procured are recorded a
reasonable time after the recording of the deed. If a release is not delivered at Closing,
Seller’s attorney shall deliver to Buyer, at Closing, a customary written commitment to
deliver such release within a reasonable time after Closing.
(a) At Closing, the Real Property shall be conveyed to the Buyers free and
clear of all liens and encumbrances except as follows: (i) the lien of any real estate taxes
which are not yet due and payable, (ii) easements, restrictions, reservations, liens and
encumbrances of record, if any, so long as the same do not prohibit or materially interfere
with Buyers operation of the Building, (iii) building and use restrictions of record, and
(iv) any charges or installments for municipal improvements not assessed and due and
payable as of the date of this Agreement. (The matters set forth in clauses (i) through (iv)
are hereinafter referred to as the “Permitted Exceptions”).
(b) At the Closing, the Building and Improvements shall be conveyed to
Buyers by a bill of sale in form reasonably acceptable to the Buyers.
5. Items to be Furnished by Seller.
Within ten (10) business days following the execution date of this Agreement, the
Seller shall deliver to Buyer true, correct and complete copies of the items as to the
Building and Improvements listed on Exhibit B attached hereto, and shall provide Buyer
full access and opportunity to examine the Real Property, the books, records, contracts
and other documentation related to the Building and the Real Property. Buyer shall have
until 5:00 p.m. Central Time on the date that is sixty (60) days following the Effective
Date ("Disapproval Date") to either approve or disapprove the Real Property for any
reason or no reason in Buyer's sole and absolute discretion, by sending written notice by
facsimile or overnight courier to Seller; provided that, if deemed necessary by Buyer in
its sole and absolute discretion, Buyer shall have an additional period of fifteen (15) days
beyond the Disapproval Date to conduct a Phase II Environmental Impact Study of the
Real Property if prior to the Disapproval Date, it provides written notice to the Seller that
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it desires to extend the Disapproval Date for an additional fifteen (15) days (the
"Extended Disapproval Date") to conduct such additional Phase II environmental
testing. In no event shall the Extended Disapproval Date apply for any purpose other than
for the purpose set forth in this Paragraph. In the event no notice is sent, approving of the
purchase of the Real Property prior to the Disapproval Date, Buyer shall be deemed to
have approved the Real Property. If Buyer disapproves the Real Property, then the
Deposit shall be returned to Buyer and this Agreement shall be deemed null and void and
of no further force or effect. If Buyer approves the Real Property, the Deposit shall be
dealt with in accordance with the other provisions of this Agreement. Even after the
approval of the Real Property, Seller shall promptly furnish Buyer such information as
Buyer shall reasonably request from time to time up to the Closing Date. If Seller does
not deliver any of the items listed on Exhibit B to Buyer within the time period provided
in the first sentence of this paragraph, the Disapproval Date (or, if applicable, the
Extended Disapproval Date) with respect to such item shall be extended for each
additional day that Seller fails to deliver the item to Buyer; and
6. Title Insurance and Survey.
Promptly after receipt of a fully executed copy of this Agreement, Buyer shall
order from a title company licensed to conduct business in [STATE], at Buyer’s sole cost
and expense, a title commitment ("Title Commitment") for an owner's title insurance
policy Buyer may also obtain, at Buyer’s sole cost and expense, a current as-built survey
of the Property (“Survey”). If the Title Commitment or Survey discloses any matter
which needs to be released or removed in order for good and marketable title to the Real
Property to be conveyed to Buyer in accordance with the provisions of this Agreement
(other than release or satisfaction of any mortgage or security interest granted to the
Seller with respect to the Property, which Seller agrees to release or satisfy at the
Closing) or any encroachment or other matter unacceptable to Buyer’s attorney or title
company, then Buyer must notify Seller in writing of such matter (a “Title/Survey
Objection”) on or prior to the Disapproval Date or the Title Commitment and Survey
shall be deemed in satisfactory and acceptable condition to Buyer. Upon receipt of a
notice of a Title/Survey Objection, Seller will undertake such steps as Seller, acting in
good faith, deems reasonable under the circumstance either (a) to cause such Title/Survey
Objection to be released or satisfied or (b) to induce the title insurance company to issue
the Title Commitment to Buyer without the Title/Survey Objection, it being understood
that Seller shall have no obligation whatsoever to expend any sum or undertake any
actual or potential liability in excess of $10,000.00 in connection therewith. If at the
Closing, any Title/Survey Objection has not been released or removed despite Seller’s
good faith efforts as aforesaid, then Buyers shall have the option to either, (i) terminate
this Agreement forthwith (in which event the Deposit shall be repaid to the Buyer), or (ii)
accept title to the Real Property subject to the Title/Survey Objections without any
change in the Purchase Price.
7. Conditions Precedent to Closing.
Buyer’s obligations hereunder are subject to the satisfaction of the following
conditions precedent and the compliance by Seller with the following covenants.
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(a) Seller’s Deliveries. Seller shall have delivered to or for the benefit of the
Buyer, as the case may be, on or before the Closing Date, all of the documents and other
information required of Seller as set forth on the List of Exhibits and Schedules attached
(b) Surveys. Current as built surveys of all of the Real Property shall have
been obtained by Buyer, at Buyer’s sole cost and expense, in form sufficient to enable the
title company to delete the survey exception from the Title Insurance Policy.
(c) Environmental Impact Studies. A Phase I Environmental Impact Study
(Level One) prepared according to ASTM specifications by a licensed company and
issued for the benefit of Buyers and, if deemed necessary by Buyer, in their sole and
absolute discretion, a Phase II Environmental Impact Study, of the Real Property shall
have been obtained by Buyer, on or prior to the Disapproval Date (or if applicable, the
Extended Disapproval Date), at Buyer’s sole cost and expense.
(d) Engineering Report. An Engineering Report on the assets of the Seller, as
applicable, issued by a licensed company acceptable to Buyers in its sole discretion and
issued for the benefit of Buyers shall have been obtained by Buyers, on or prior to the
Disapproval Date, at Buyers’ sole cost and expense.
The Buyer must provide the Seller with notice prior to the expiration of the
Disapproval Period if any of the conditions set forth in Section 7 (a) through (d) have not
been met to the reasonable satisfaction of the Buyer. Failure of Buyer to so notify the
Seller on or before the expiration of the Disapproval Period shall be deemed that such
conditions have been met to the reasonable satisfaction of the Buyer and such conditions
shall cease to be conditions to the obligation of Buyer to proceed with the purchase of the
8. Damage, Casualty, Condemnation.
If any of the Property suffers damage as a result of any casualty or condemnation
prior to the Closing Date and can be restored for _________ Dollars ($_____) or less,
then Seller shall expeditiously commence and complete the restoration in a good and
workmanlike manner. If the cost of repair exceeds _________ Dollars ($_____), Buyers
can elect, by notice to Seller, to either (a) terminate this Agreement, in which case Buyers
shall have no further liability to Seller hereunder (b) require Seller to restore the damage,
provided that sufficient insurance proceeds are available to Seller or (c) deduct the
amount of the damage from the Purchase Price and proceed with Closing. If restoration
of the damage is not completed within five (5) days prior to the Closing Date, then the
Closing Date will be extended until a date, which is five (5) days after substantial
completion of the restoration. All risks of loss are borne by Seller prior to Closing.
9. The Closing.
The closing (the "Closing") shall be coordinated through the Buyer’s attorney on
[DATE] ("Closing Date") or such other date as may be agreed to by Seller and Buyer. At
Closing, Buyer shall deliver to Seller the Purchase Price as provided in Section 3 above
and those items listed on Exhibit D attached hereto, and Seller shall provide Buyer with
the items listed in Exhibit E attached hereto. The proration date (“Proration Date”) shall
be one (1) day prior to the Closing Date. The following items will be prorated as of
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12:01 a.m. on the Proration Date: income and operating expense items including, but not
limited to taxes, rents, and any prepaid agreements, but not capital expense items and
debt service payments. Notwithstanding the foregoing, any taxes or assessments levied
against the Property with respect to any period of time prior to the Closing Date shall
remain and be the obligation of Seller, if not provided for in the prorations, and Seller
shall promptly pay, or reimburse Buyer, as applicable, all such taxes or assessments prior
to their delinquency. Such obligation shall survive the Closing.
Delinquent rents shall not be prorated and shall become the property of the Buyer.
10. Closing Costs.
Seller shall pay all filing, documentary stamps and recording fees relating to
documents required to clear title to the Real Property, sales tax and surtax to state or local
entities with reference to the sale of the Real Property.
11. Representations and Warranties of Seller.
Seller represents and warrants for the benefit of Buyer that the following facts are
true and will be true as of Closing:
(a) The execution and delivery of, and the performance by Seller of its
obligations under this Agreement do not and will not contravene, or constitute a default
under, Seller’s organizational documents or any agreement, judgment, injunction, order,
decree or other instrument binding upon Seller, or result in the creation of any lien or
other encumbrance on any asset of Seller or any provision of applicable law. Except for
this Agreement, there are no outstanding agreements pursuant to which Seller has agreed
to sell or has granted an option, right of first refusal or other right to purchase the
(b) Seller has no knowledge of, nor has received any notice of any special
taxes or assessments related to the Property or any part thereof or any planned public
improvements that may result in a special tax or assessment against the Property.
(c) The Seller has no knowledge, as of the date hereof, of any condemnation
proceeding threatened or pending and no knowledge of any threatened or pending
litigation with reference to any of the Real Property, and to the best of Seller’s
knowledge, all of the Real Property complies and will comply with existing zoning
ordinances and restrictive covenants, and other laws, statutes, rules, and regulations,
including building occupancy and fire codes; to the best knowledge of Seller, the Real
Property is in good order and repair and there are no material latent defects or adverse
conditions in any portion or component part of the Real Property not disclosed in writing
to Buyer. None of the Real Property that is personal property to be transferred to Buyer
hereunder is leased, including, without limitation, telephones, telephone systems,
computers and related software, copiers, facsimile machines, cameras, gates and signs
advertising the Building.
(d) Seller shall not, before or after Closing, release or modify any warranties
or guarantees, if any, of manufacturers, suppliers and installers related to any Property or
any part thereof, except with the prior written consent of Buyer. A complete list of all
such warranties and guaranties in effect as of this date is attached hereto as Exhibit F.
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(e) Seller’s financial information listed in Exhibit B and to be delivered to
Buyer as required hereby, including, without limitation, all books and records and
financial statements ("Financial Information") is, and shall be, correct and complete in
all material respects and presents, and will present, accurately the results of the
operations of the Property for the periods indicated. Since the date of the last financial
statement included in Seller’s Financial Information, there has been no material adverse
change in the financial condition or in the operations of the Property.
(f) No Act of Bankruptcy has occurred with respect to Seller.
(g) Except as disclosed in the environmental site reports listed on Exhibit B,
copies of which has or will be provided to the Buyer, Seller has received no notice: (i) of
the presence of any "Hazardous Substances" (as defined below) on the Real Property, or
any portion thereof, or, (ii) of any spills, releases, discharges, or disposal of Hazardous
Substances that have occurred or are presently occurring on or onto the Real Property, or
any portion thereof, or (iii) of the presence of any PCB transformers serving, or stored on,
the Real Property, or any portion thereof, and Seller has no knowledge of any failure to
comply with any applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any Hazardous Substances (as
used herein, "Hazardous Substances" shall mean any substance or material whose
presence, nature, quantity or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in combination with other
materials is either: (x) potentially injurious to the public health, safety or welfare, the
environment or the Real Property, (y) regulated, monitored or defined as a hazardous or
toxic substance or waste by any Environmental Authority, or (z) a basis for liability of the
owner of the Property to any Environmental Authority or third party, and Hazardous
Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude
oil, or any products, by-products or components thereof, and asbestos).
(h) Seller hereby agrees to maintain all of the Real Property in its present
condition, operate the Real Property in a careful and prudent manner and comply with all
occupancy leases thereof until the time of Closing and will deliver all tenant spaces in
rentable condition subject to those tenants currently in occupancy of spaces at Closing.
(i) Seller shall remain liable for any expenses incurred by Seller and/or
Seller's agents or employees for the period prior to the Closing Date and shall indemnify
Buyer against any actions brought against Buyer or any of the Property resulting from
Seller's failure to pay any such expenses, including, but not limited to any mechanics
liens or claims that have been or may be asserted against the Buyer or the Property with
respect to any work performed on the Property prior to the Closing Date. Buyer shall
remain liable for any expenses incurred by Buyer and/or Buyer’s agents or employees for
the period on or after the Closing Date and shall indemnify Seller against any actions
brought against Seller or any of the Real Property resulting from Buyer’s failure to pay
any such expenses.
THE REAL PROPERTY IS BEING SOLD IN AN “AS IS” CONDITION.
SELLER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, EXCEPT FOR REPRESENTATIONS AND WARRANTIES
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SET FORTH IN THIS AGREEMENT OR IN ANY SCHEDULES OR EXHIBITS
ATTACHED HERETO. All representations, warranties and covenants of Seller
contained herein shall also be deemed to be made as of the time of Closing, and shall
survive the Closing for a period of one (1) year and shall inure to the benefit of Buyer and
Buyer’s legal representatives, heirs, successors or assigns.
(j) Representations, Warranties and Covenants; Obligations of Seller;
Certificate. All of the Seller’s representations and warranties made in this Agreement
shall be true and correct as of the date hereof and as of the Closing Date as if then made,
there shall have occurred no material adverse change in the financial results of the
operation of the Property since the date hereof, Seller shall have performed all of its
covenants and other obligations under this Agreement and Seller shall have executed and
delivered to Buyer at Closing a certificate to the foregoing effect.
12. Representations and Warranties of Buyer.
(a) Buyer hereby represents and warrants to Seller that this Agreement and all
documents executed by Buyer which are to be delivered to Seller at Closing are and will be
duly authorized, executed and delivered by Buyer and are and at Closing will be legal, valid
and binding obligations of Buyer and do not and at Closing will not violate any provisions
of any agreement to which Buyer is a party.
(b) Buyer has the power and authority to execute the documents contemplated
by this Agreement.
13.1 Each party hereby agrees to indemnify the other party and hold it harmless
from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages
and losses, including, without limitation, reasonable attorneys' and paralegals' fees, resulting
from any misrepresentation or breach of warranty, representation or breach of covenant
made by such party in this Agreement or in any document, certificate or exhibit given or
delivered to the other pursuant to or in connection with this Agreement, pursuant to the
terms and/or unless otherwise set forth herein.
13.2 Buyer shall be entitled to set off and receive, at Buyer’s election from the
Escrowed Funds any and all amounts due from Seller and/or the [Members/Stockholders]
pursuant to Section 13(a) hereof. Buyer shall provide written notice to Seller of the claim
and nature of the loss, liability, damage, fee or expense; Seller shall respond in writing
within fifteen (15) business days of such notice; in the event that Seller does not respond
to such notice, Buyer shall be entitled to set off; in the event that Buyer and Seller do not
agree on the amount of set off, such disagreement shall be resolved by conciliation and
arbitration according to the procedure set forth in Section 13.3 below.
13.3 In the event of any controversy, claim or dispute arising out of or relating
to this Agreement or any Schedules or Exhibits attached hereto, or with respect to any
breach thereof, the parties shall seek to resolve the matter amicably through mutual
discussions to be initiated by written notice by the aggrieved party to the other party as
promptly as possible after a controversy, claim or dispute arises and to be conducted
diligently in good faith by both parties. Such discussions may be conducted over the
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telephone, or at a meeting, or meetings, held at the principal offices of either Buyers or
Seller at such other location as the parties may agree. Notwithstanding the foregoing,
If the parties fail to resolve any such controversy, claim or dispute by amicable
arrangement and compromise within the thirty (30) day period immediately following the
date of the notice initiating such discussions referred to above, or if the party receiving
such notice, fails to commence such discussions within the ten (10) day period
immediately following the date of such notice, the aggrieved party shall submit the
controversy, claim or dispute to arbitration before a single arbitrator to be conducted in
accordance with the commercial rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Any award rendered by the arbitrator shall be final and binding upon
the parties. The arbitrator shall explain in writing the reasons for his award in reasonable
detail, including a statement of the facts as determined by him and the rules of law
applied. Any arbitration proceeding hereunder shall be held in [CITY/STATE].
Notwithstanding anything set forth in this Section to the contrary, either party
shall have the right to bring suit in any appropriate court with respect to its remedy of
14. Access to Property to Conduct Inspections.
From and after the date of execution hereof by both Buyer and Seller and
notwithstanding any term or provision herein contained to the contrary, Seller shall afford
Buyer and authorized representatives of Buyer reasonable access to the Property; provided
that Buyer have provided Seller with certificate(s) of insurance reflecting proof of
"occurrence" insurance coverage in such amounts and in such form as Seller, by notice to
Buyers, shall reasonably require with regard to any liability which Seller or Buyer may incur
by way of damage to property of or liability for injury to third parties, or damage to the
Property, resulting from such access and any studies, tests, surveys, examinations,
investigations or inspections pursuant thereto; provided further, such certificates of
insurance shall reflect such endorsements as Seller shall reasonably request, name Seller as
an additional insured and provide that Seller must be given thirty (30) days prior notice of
cancellation or modification. Buyer shall also indemnify and hold Seller harmless from and
against any and all claims of and liability for injury to persons, or damage to the Property or
the property of third parties, and liens to the extent caused by any activities of Buyer, its
contractors or its agents upon the Property. If Buyer terminates this Agreement as otherwise
provided herein, Buyer shall return the Property to the state that Buyer found it and repaid
any damage caused by it or its contractors or agents as a further condition to any return of
the Deposit to Buyer. Such access shall be at the sole risk of Buyer.
Notwithstanding the foregoing, Buyer shall not perform any grading, trenching,
digging, drilling, excavation or other alteration on the Property without Seller's prior written
consent, which consent shall not unreasonably be withheld or delayed. The parties agree
that Seller's consent may be conditioned upon Buyer providing Seller such assurances as
Seller shall reasonably require that (i) to the extend reasonably possibly, any damage to the
Property and improvements thereon caused by the requested grading, trenching, digging,
drilling, excavation, or other alteration shall be promptly repaired at no cost to Seller, and
(ii) no construction or other liens shall be asserted against the Property as a result of such
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activities. Seller's consent shall not be required for immaterial disturbance of the soil. If this
Agreement is terminated for any reason, Buyer shall provide Seller with a certificate,
addressed to Seller, certifying that all construction or other liens that could be asserted
against the Property as a result of Buyer’s activities thereon have been satisfied, waived or
bonded over. Unless otherwise approved by Seller, Buyer’s certification with respect to
construction and other liens pursuant to the preceding sentence shall be in the form
customarily required by title companies in [STATE] of a property owner upon the closing of
a sale of real property. Buyer’s right to receive any return of the Deposit shall be
conditioned upon Buyer’s delivery of such certificate to Seller. If required by Seller, Buyer
shall also deliver such certificate regarding liens to Seller at Closing.
In the event that Buyer does not close this transaction for any reason, other than
Seller's default, Buyer agrees to deliver to Seller copies of all studies, reports and other
information obtained by Buyer which pertains to the Property and, in those instances where
Buyer is entitled to the return of the Deposit, it shall be a condition of the return of the
Deposit that Buyer deliver the foregoing to Seller. The Seller’s sole right at law and in
equity in the event of a Buyer’s default shall be limited solely to the Deposit.
15. Insurance upon the Property.
Between the time of Seller's execution of this Agreement and Closing, Seller shall
cause the Property to be kept insured against fire and other extended coverage perils in the
amount of the present coverage.
16.1 Notices. All notices and other communications given, authorized or required
hereunder shall be in writing and shall be given by personal delivery, mailing the same by
certified or registered mail, return receipt requested, postage prepaid, by telecopy or
facsimile transmission with written confirmation of receipt, or causing same to be delivered
by prepaid overnight courier with confirmed receipt to the parties at their addresses set forth
If to Seller: ___________________
With Copy to: ___________________
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If to Buyer: ___________________
With a Copy to: ___________________
or to such other address as either party may from time to time so specify to the other. Any
such notices and other communications given by other means shall not be effective. In the
event of any notice by telecopy or facsimile transmission, a hard copy shall be sent by
personal delivery or overnight courier with confirmed receipt on the day of such
transmission. Any such telecopy or facsimile transmission received after 5:00 P.M., Eastern
Time (Standard or Daylight as then applicable), shall be deemed to have been given on the
next following business day. The attorneys for Buyer and Seller are hereby expressly
authorized to give any notice, demand or request or to make any other communication
pursuant to the terms of this Agreement on behalf of their respective clients. Unless
otherwise specifically set forth herein, the date of actual receipt of a notice shall be deemed
the date of service of notice; provided, however, that, in the event that an addressee refuses
to accept delivery or acknowledge receipt, then notice shall be deemed to have been served
on the earlier of the date of personal delivery, the next business day in the case of delivery
by overnight courier, or five (5) days after the date mailed.
16.2 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Buyer may
assign its rights and obligations hereunder without Seller’s consent upon written notice to
Seller along with a letter from the assignee agreeing to be bound by the terms of this
Agreement as if it were a party thereto. Notwithstanding any such assignment, the Buyer
shall remain obligated under this Agreement.
16.3 Amendments and Modifications. This Agreement may be amended or
modified only by a written instrument executed by the parties.
16.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the [STATE], exclusive of choice of law rules. This Agreement
shall not be construed more strictly against one party that the other parties, it being
recognized that both Buyer and Seller have contributed substantially and materially to the
negotiation and preparation of this Agreement. The obligations of the parties shall be
performed and venue for any legal action arising out of this Agreement shall lie in
[COUNTY] County, [STATE].
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16.5 Waiver. No waiver by Buyer or Seller of any failure or refusal to comply
with obligations or breach or default of any other party shall be deemed a waiver of any
other or subsequent failure or refusal to so comply or breach or default.
16.6 Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be declared invalid or
unenforceable by a court of competent jurisdiction, then such term or provision shall be
modified to the minimum extent necessary to make it or its applications valid and
enforceable, and the validity and enforceability of all other provisions of this Agreement and
all other applications of any such term or provision shall not be affected thereby, and each
term and provision of this Agreement shall be valid and shall be enforced to the fullest
extent permitted by law.
16.7 Headings: Plural and Singular. The headings which have been used
throughout this Agreement have been inserted for convenience of reference only and do not
constitute matter to be construed in interpreting this Agreement. Words of any gender used
in this Agreement shall be held and construed to include any other gender and words in the
singular shall be held to include the plural, and vice versa, unless the context requires
otherwise. The words "herein", "hereof", "hereunder" and other similar compounds of the
word "here" when used in this Agreement shall refer to the entire Agreement, and not to any
particular provision or section.
16.8 Time. If the last day of any time period stated herein shall fall on a Saturday,
Sunday, federal, legal or banking holiday, then the duration of such time period shall be
extended so that it shall end on the next succeeding business day. The term "business day"
shall mean any day other than a Saturday, Sunday, federal, legal or banking holiday.
16.9 Agreement Not To Compete. In consideration of Buyer executing this
Agreement, Seller and the Stockholders agree not to compete, directly or indirectly, in
any capacity, with Buyer in the business in an area within a ten (10) mile radius of the
Building and not to solicit Buyer’s customers or tenants for business for a period of five
(5) years commencing with the Closing Date and on the Closing Date, the Seller and
Stockholders shall execute an agreement not to compete with Buyer ("Agreement Not To
Compete") in the form of Exhibit G attached hereto. .
16.10 Further Acts. In addition to the acts recited in this Agreement to be
performed by Seller and Buyer, Seller and Buyer agree to perform or cause to be performed
at Closing or after Closing any and all such further acts as may be reasonably necessary to
consummate the transaction contemplated hereby.
16.11 Counterparts. This Agreement may be executed in several counterparts,
each constituting a duplicate original but all counterparts shall constitute one and the same
Agreement. The parties may execute and deliver this Agreement by forwarding by
facsimile or the other means copies of this Agreement showing execution by the parties
sending the same, and the parties agree and intend that such signature shall have the same
effect as an original signature, and that the parties shall be bound by such means of
execution and delivery, and that the parties hereby waive any defense to validity based on
any such copies or signature.
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16.12 Merger of Prior Agreements. This Agreement supersedes all prior
agreements and understandings between the parties hereto relating to the subject matter
hereof and constitutes the entire agreement between the parties hereto with respect to the
transactions contemplated herein.
16.13 Enforcement. In the event either party hereto fails to perform any of its
obligations under this Agreement or in the event a dispute arises concerning the meaning or
interpretation of any provision of this Agreement, the defaulting party or the party not
prevailing in such dispute, as the case may be, shall pay any and all costs and expenses
incurred by the other party in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys’ and paralegals’ fees.
16.14 Remedies. In the event of a breach of this Agreement by Seller, Buyers
shall have the right to a return of the Deposit or, alternatively, specific performance. In
the event of a breach of this Agreement by Buyer, Seller shall have the right to retain the
Deposit or, alternatively specific performance.
16.15 Exhibits and Schedules. All Exhibits and Schedules referred to in this
Agreement shall be deemed to be attached hereto and made a part hereof.
16.16 Ordinances. Buyer of real estate in the [STATE] is legally obligated to
comply with all the local real estate ordinances.
16.17 Counterparts. This Agreement shall be deemed executed when executed by
Seller and Buyer and an original counterpart thereof has been delivered to Seller or its
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first above written
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LIST OF EXHIBITS AND SCHEDULES
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