CONTRACT FOR THE SALE AND PURCHASE OF REAL ESTATE This Contract for the Sale and Purchase of Real Estate (the “Agreement) is entered into by and between _____________________ husband and wife, ___________________________________hereinafter referred to collectively as “Seller”, and ________________________________________________ (or its nominee or assigns) hereinafter referred to as “Buyer”. For good and valuable consideration, the same being hereby acknowledged, the parties hereto agree as follows: 1. REAL ESTATE DESCRIPTION For good and valuable consideration, upon the terms and conditions herein set forth, Seller agrees to sell and convey to the Buyer, and the Buyer agrees to acquire from Seller, all of the Seller’s right, title and interest in and to a parcel of real estate, Permanent Parcel ____________ consisting of approximately +/- .98 acres located at the Southwest Quadrant of __________ and _____________ located in the City of ________________, County of ______________, as is more particularly described in the legal description attached hereto as Exhibit “A”, including all landscaping, all appurtenant rights, easements and privileges, and all structures, fixtures and any and all other improvements of whatever kind or nature currently existing thereon (the “Property”). An accurate survey shall determine the exact acreage to be conveyed, as hereinafter set forth. 2. PURCHASE PRICE: The parties hereto agree that, subject to the terms, conditions and other stipulations set forth herein, the purchase price of the Property shall be Eight Hundred-Fifty Thousand dollars ($850,000.00) (the “Purchase Price”), which shall be payable to the Seller as follows: a. A $5,000.00 earnest money deposit (the “Earnest Money”) shall be placed in an interest bearing account (interest to accrue to the benefit of Buyer) with __________________________ (the “Escrow Agent”) within seven (7) business days of the date that this Agreement has been executed by both parties hereto (the “Execution Date”). The Earnest Money shall be applied against the Purchase Price or shall be immediately refunded to Buyer in the event that any of the conditions stated in this Agreement are not satisfied. b. The balance of the Purchase Price, plus or minus the additional adjustments hereinafter set forth, shall be deposited into escrow on or before the Closing Date (as hereinafter defined). 3. CLOSING AND POSSESSION: Unless the parties otherwise agree in writing, the transactions contemplated hereby shall be closed through escrow (the “Closing) on the date designated by Buyer in a written notice to be provided to Seller, which shall be no later than thirty (30) days following the expiration of the Contingency Period (as hereinafter defined), or an extension thereof as further provided herein (or if such 30th day is on a weekend or holiday, then on the next
business day) (the “Closing Date”). Seller and Buyer agree that all funds and documents necessary for the completion of this transaction shall be deposited in escrow on or before the Closing Date. Possession of the Property shall be delivered to Buyer on the Closing Date. 4. CONTINGENCIES: Buyer represents and warrants that it will make its own personal investigation of the Property, the improvements thereon, and the surrounding area during the contingency Period, or any extension thereof as further provided herein, as to location, value, zoning restrictions, and general conditions, and Buyer acknowledges that the Seller makes no certifications, representations or warranties, except as expressly provided in this Agreement. 4.1 Contingency of Title. Buyer shall, within thirty (30) days of the Execution Date, request a Title Insurance Commitment for an owner’s fee policy of title insurance (the “Commitment”), with special tax and lien search and with extended coverage endorsement, on the Property in the amount of the Purchase Price written by (the “Title Company”). The Commitment shall be for a period of not less than four (4) months. Such policy shall contain only the following contingencies of title (the “Permitted Encumbrances”): a. General real estate taxes and assessments, which are a lien but are not yet due and payable on the Closing Date. b. Easements and restrictions of record affecting the Property which do not interfere with Buyer’s use of or value of the Property and which are disclosed to and approved by Buyer in writing as hereinafter set forth. There shall be attached to such Commitment copies of any instruments, which are the subject of such an exception. c. All monetary liens or encumbrances (including, without limitation, all mortgages affecting the Property), which shall be removed by Seller, at Seller’s sole cost and expense, prior to or on the Closing Date. The Commitment must contain no exceptions as to survey. Buyer shall, at its option, obtain a metes and bounds survey of the Property (the “Survey”) made on the ground by a registered surveyor selected by Buyer. The Survey shall be in a form and substance satisfactory to Buyer, the Title Company and any lender of Buyer. The Survey shall also contain a certificate, in a form and substance acceptable to Buyer, certifying to Buyer, the Title Company, any lender of Buyer, and others designated by Buyer that the Survey is an accurate representation of the Property made in accordance with the “Minimum Standard Detail Requirements for Land Title Surveys” adopted by the ALTA/ACSM and shall include the location of all structures and improvements on the property and the identification of all easements and rights-of-way, either of record or visible on the ground, which
either benefit or burden the Property. The cost of the Survey shall be paid by the Buyer. Buyer shall have a period of thirty (30) days after receipt of such Commitment and Survey to examine the Commitment and the Survey and to either (i) notify Seller in writing of Buyer’s approval of the form and substance of the Commitment and Survey, or (ii) notify Seller in writing that Seller must remove or satisfy any items shown (or not shown) on the Commitment or Survey which are not acceptable to Buyer (the “Defects”). Seller shall have an additional period of thirty (30) days in which to correct any such Defects to Buyer’s satisfaction, at Seller’s sole cost and expense, and if the Defects are not corrected within said period to Buyer’s satisfaction, then Buyer shall, in Buyer’s sole discretion have the option of: a. Accepting the Property with such Defects: or b. Consummating the transaction in the same manner as if there had been no objections, withholding in escrow from the amount due at Closing the reasonable cost of curing such objections, as agreed to by the Seller and Buyer, in which event the transaction contemplated herein shall consummate on the Closing date. c. Terminating this Agreement and accepting the return of all documents and any deposits or down payments, paid or deposited by Buyer pursuant to this agreement, including, without limitation, the Earnest Money. Upon terminations of this Agreement pursuant to this Paragraph, this Agreement shall have no further force or effect and neither party shall have any further obligation to the other party, except that Buyer shall pay all of the Title Company and escrow fees and/or charges, _____________ and Seller shall return or direct the Escrow Agent to return to Buyer all funds and documents previously paid or deposited by Buyer including, without limitation, the Earnest Money. 4.2 Other Contingencies. Buyer’s obligation to close the transaction contemplated hereunder and to accept the conveyance of the Property is further conditioned upon Buyer’s satisfaction, in Buyer’s sole discretion, of the following (collectively, the “Conditions”): a. The determination of Buyer that it is able to obtain appropriate zoning for its intended development of the Property and any necessary permits, licenses, consents, approvals or other items Buyer deems necessary for its intended use, development and/or operation of the Property. b. Buyer shall have determined that the Property is acceptable to Buyer, and all due diligence investigations are satisfactory to Buyer, including soil analysis, surveys, environmental analysis, wetland analysis, title
examination and/or any other due diligence deemed necessary by Buyer in its sole discretion. c. The receipt of an environmental survey and No Further Action letter issued by BUSTR, perforated by a company acceptable to Buyer’s lender, showing the Property to be free from the likelihood of contamination by any hazardous, toxic, or controlled substances or the presence of any underground storage tanks. Seller hereby agrees to provide any environmental information it has regarding the Property. Buyer shall have a period of ninety (90) days from the Execution Date to satisfy or waive the Conditions (the “Contingency Period”). If the conditions set forth in Paragraph 4.2 are not satisfied or waived prior to the expiration of the Contingency Period, or any extension thereof as further provided herein, Buyer may, at its sole option, terminate this Agreement at which time any and all documents and deposits or down payments, paid or deposited by Buyer, including, without limitation, the Earnest Money, shall be returned to Buyer and this Agreement shall be of no further force and effect and neither party shall have further obligation to the other party, except that the Buyer shall pay all Title Company and escrow fees, __________________ in such event, Buyer agrees to turn over to Seller copies of all documentation derived from Buyer’s surveys, inspections and other due diligence activities for Seller’s future use. Notwithstanding anything else contained herein to the contrary, if the Conditions set forth in Paragraph 4.2 are not satisfied or waived prior to the expiration of the Contingency Period, and should Buyer be diligently pursuing the satisfaction of the same, at Buyer’s election, the Contingency Period will be extended for an additional period of thirty (30) days. If the Conditions to closing are not waived or satisfied by Buyer within thirty (30) day period, the Seller or Buyer shall have the right to terminate this Agreement at which time any and all documents and deposits or down payments, paid or deposited by Buyer, including, without limitation, the Earnest Money, shall be returned to Buyer and this Agreement shall be of no further force and effect and neither party shall have any future obligation to the other party, save and except that Buyer shall pay all Title Company and escrow fees. 5. WARRANTY DEED AND TITLE On the Closing Date, Seller shall convey to Buyer, or its nominee or assignee, good and marketable title in fee simple to the Property by a General Warranty Deed, in form and substance reasonably acceptable to Buyer, in recordable form free of all liens and encumbrances, and free and clear of any encroachments, easements, restrictions, or rightof-ways and dower rights, if any. Seller shall deliver the Deed into escrow on or before the Closing Date. An Owner’s Title Insurance Policy commitment shall be obtained by the Seller for the benefit of the BUYER and dated the date of transfer and shall meet the requirements of Paragraph 4 above.
6. REAL ESTATE TAXES: The general real estate taxes and assessments shall be prorated. Using for such purpose the rate and valuation shown on the last available tax duplicate. All present and future installments of special taxes and assessments levied against the Property or disclosed in the special tax search shall be paid by Seller prior to or on the Closing Date. In the event that the real estate taxes and assessments actually levied against the Property and paid for the period of proration exceed the prorated tax credit given Buyer on the Closing Date, Seller will, upon presentation of a tax bill or bills, pay to Buyer the amount that the taxes and/or assessments actually levied for the prorated period exceed the credit given Buyer on the Closing Date. The terms and provisions of this subparagraph shall survive the consummation of this transaction and the delivery and filing for record of the Deed. 7. ACCESS TO PROPERTY, FURTHER ASSURANCE: a. Following execution hereof and pending the Closing, Seller shall give Buyer, and its agents, access to the Property to permit Buyer or its agents to survey and examine the same and to conduct tests and such inspections of the Property, at Buyer’s sole expense, as Buyer, in Buyer’s sole discretion, deems necessary (including, without limitation, such environmental tests, audits and inspections and such soil borings, samples and tests and other inspections of the Property as Buyer, in Buyer’s sole discretion, deems necessary) and to make plans for alterations thereto and improvements thereon, provided that no material physical changes to the Property shall be commenced prior to Closing Date without the prior written consent of the Seller. Buyer agrees that its entry pursuant to this Paragraph shall be done in such a manner as to reasonably avoid any damage. Buyer hereby indemnifies Seller from any loss or damage to the Property resulting solely from its entry upon the Property pursuant to this Paragraph. b. Seller will cooperate with and assist Buyer, at no cost to Seller, in obtaining all necessary zoning, permits and approvals required to satisfy the conditions precedent to Closing, and will execute all documents required upon request by Buyer. Seller further agrees to execute and deliver such further instruments of conveyance and transfer and to take such other action as Buyer reasonably may request to effectively convey and transfer the Property to Buyer, at Closing or thereafter. c. Upon full execution of this Agreement, Seller shall deliver to Buyer all surveys of the Property and copies of all environmental, engineering and all other reports in Seller’s possession relating to the Property or its condition. Buyer shall treat such materials as confidential and shall not, except as required by law, disclose the same to anyone other than Buyer’s advisors, attorneys and consultants in connection with this transaction, who themselves shall treat the same as confidential. Notwithstanding any provision of this Agreement to the contrary, the foregoing confidentiality agreement shall survive any termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES, BY SELLER: Seller hereby represents and warrants to Buyer to the best of Seller’s knowledge, as of the date hereof and as of the Closing Date, and the same shall survive the consummation of this transaction and the delivery and filing for record of Seller’s warranty deed, as follows: a. There is no condemnation proceeding pending or declaration of taking or other a similar instrument filed against any of the Property, and Seller has not received any notice or have any knowledge that any such proceedings are threatened or will take place or that such instruments will be filed. b. There is no litigation, action or proceeding pending, or to the best of Seller’s knowledge, threatened, against or relating to the Seller or the Property which might adversely affect the Property or which questions the validity of this Agreement or any action taken or to be taken by Seller pursuant hereto. c. Seller is the owner of the Property, in fee simple, subject only to the Permitted Encumbrances described in Paragraph 4, and Seller has the power and authority to execute, deliver, and perform this Agreement and the transaction contemplated hereby. d. There are no planned or commenced public improvements by governmental authorities which may result in special assessments or otherwise materially affect the Property known to the Seller other than the potential ten foot (10’) widening of ______________. e. Seller has no notice or knowledge of any violation of any building, fire, zoning, environmental law or any other laws, ordinances, rules, regulations, orders or directives of any governmental agency or court order requiring repair, alteration, or correction any existing condition upon the Property. f. The Property has not been used as a sanitary landfill, dump, industrial waste disposal area or any other similar usage during their time of ownership. Seller has no knowledge of any underground storage tanks, asbestos, toxic or hazardous wastes located, or having been located, on the Property, except as disclosed in that certain SFM/BUSTR Tier 3 Risk Assessment performed by _____________. g. Seller shall, between the date of this Agreement and Closing, maintain and preserve the Property in its present condition. h. There are no lessons, options, purchase agreements, tenancies, land contracts or other agreements affecting the Property or any part thereof, save and except for those set forth on Exhibit “B” attached hereto and incorporated herein. Furthermore, Seller shall not sign any leases or agreements without prior consent of Buyer.
i. Neither the execution of this Agreement nor the consummation of the transaction contemplated hereby will constitute a violation of or be in conflict with or constitute a default under any term or provision of any agreement, lease or other obligation to which Seller is a party. j. Seller has received no notice of any default or breach by Seller of any convenants, conditions, restrictions, rights-of-way, or easements which may affect the Property or any portion of the Property and no such default or breach now exists. k. Seller has no knowledge of any hidden or latent defects in the Property that have not been disclosed to the Buyer. 9. LIKE KIND EXCHANGE: Seller and Buyer acknowledge that each other may desire to effect a like-kind exchange under Section 1031 of the Internal Revenue Code of 1986, as amended. Provided the following can be accomplished with no additional cost or liability to each other, Seller and Buyer will accommodate each other’s objective of consummating such exchange by permitting the assignment of all, or a portion of the rights of Buyer under this Agreement to a qualified intermediary as defined in Treasury Regulation Section 1.1031 (k). If such assignment is made, the assigning party will transfer to the qualified intermediary all of any portion of the Property pertaining to the part of this Agreement so assigned. Buyer and Seller shall indemnify and hold each other harmless for any liability incurred as a result of the transaction (s) contemplated by this section. 10. CLOSING COSTS: 10.1. Seller’s Closing Costs. Seller shall pay Sellers attorneys fees if any, the Auditor’s conveyance fee and transfer tax, the premiums for the Owner’s Title Insurance Commitment and Policy more particularly identified in Sections 4.1 and 5 above, any unpaid liens or assessment against the Property, ½ the escrow fee, and any other costs required to be paid by Seller pursuant to this Agreement. Seller shall have no obligation to pay any commissions and/or other remuneration of any kind or nature due and/or payable to the Broker (hereinafter defined) as direct or indirect result of the transaction herein contemplated. 10.2. Buyer’s Closing Costs. Buyer shall pay Buyer’s attorney’s fee, any applicable fees payable to governmental agencies for required approvals or permits for Buyer’s planned development of the Property, if any, costs of recording deed and plat, ½ the escrow fee, the cost of the survey, and any other costs required to be paid by Buyer pursuant to this Agreement. 11. DEFAULT: Buyer’s Default. In the event that Seller has performed all of its obligations under this Agreement and all of the contingencies set forth in Paragraph 4, above, have been satisfied and Buyer fails or refuses to perform its obligations, then Seller shall, as its sole remedy have the right to declare the Agreement terminated ad have the Earnest Money,
forfeited as liquidated damages. In such event, this Agreement shall be of no further force and effect, the Buyer shall pay all Title Company, escrow and Survey fees to the date of such termination. 12. NOTICES: All notices required hereunder shall be delivered personally, sent by certified mail, return receipt requested, or by a nationally recognized overnight courier providing signed proof of delivery to the parties at the addresses set forth below or such other place or places as either of them may designate in writing to the other from time to time: If to Buyer:
With a copy to:
If to Seller:
With a copy to:
Date of service of a notice served by mail shall be the date on which such notice is deposited in a post office of the United States Post Office Department. Date of service by any other method shall be the date of receipt. With regard to performance dates under this contract, the incidental failure of either party to give any notice or make any payment required herein shall not serve to create a default situation resulting in termination or diminishing of the party’s rights under the contract unless/until the party has been so notified by the other of its failure and given three business days to correct such situation. 13. COMPLETE AGREEMENT: This Agreement, including the exhibit(s) and agreement(s) attached hereto, sets forth all of the covenants, promises, agreements, conditions and understandings between them other than are herein set forth. No alteration, amendment, change or addition to this Agreement shall be binding upon Buyer or Seller unless reduced to writing and signed by each party. 14. SEVERABILITY: If any term or provision of this Agreement should be declared invalid or unenforceable, the balance of the Agreement shall not be affected thereby, but each term and provision hereof shall be valid and enforced to the full extent permitted by law.
15. CAPTIONS: The captions of this Agreement are inserted herein for convenience only and are not to be construed as part of this Agreement and shall not be construed as defining g or limiting in any way the scope of intent of the provisions hereof. 16. BINDING EFFECT: All of the covenants, terms, conditions, rights and obligations contained in this Agreement shall inure to the benefit of and be binding upon the parties hereto and their heirs, executors, administrators, successors and assigns. 17. REAL ESTATE BROKERS’ COMMISSIONS: Seller and Buyer represent and warrant to each other that such parties have had no dealings with any real estate broker or agent so as to entitle such broker or agent to any commission in connection with the sale of the Property to Buyer, except for Seller did not list the Property with ______________. Seller shall have no obligation to pay any commissions and/or other remuneration of any kind or nature due and/or payable to the Broker as a direct or indirect result of the transaction herein contemplated (the “Commissions”). Each party shall indemnify, defend and hold the other harmless from and against any and all costs, liabilities, suits, claims, losses, damages, demands and expenses (including, without limitation, attorneys’ fees and court costs) resulting from any real estate commission due as a result of the consummation of this transaction arising out of the acts of such party. The terms and provisions of this Paragraph shall survive the consummation of this transaction and the delivery and filing for record of the Deed. 18. EFFECTIVE DATE: This Contract shall become effective and binding only upon execution by all parties hereto and receipt by Buyer and Seller of at least one (1) fully executed original counterpart of this Contract. 19. ACCEPTANCE OF OFFER: This offer shall remain open for acceptance by Seller for ten (10) days after the date of the execution of this Contract by the Buyer. In the event this Contract is not fully executed by Seller within such ten (10) day period, this Contract shall self-operatively become null and void. Any acceptance which includes changes by Seller in any of the terms and conditions of Buyer’s offer shall be considered a counter-offer by Seller to Buyer, requiring Buyer’s written acceptance. If Buyer does not accept the counter-offer within a reasonable period of time, the counter-offer shall be deemed to be rejected and the original offer withdrawn.