Commercial Real Property Purchase and Sale Agreement

Commercial Real Property Purchase and Sale Agreement

Agreement made on the day of , 20 ,

between of ,

, referred to herein as Seller, and

of , referred to herein as Buyer.

For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Buyer agrees to buy and the undersigned Seller agrees to sell all that tract or parcel of real property (hereinafter called the Real Property or the Property), with such improvements as are located thereon, described in Exhibit A attached hereto and made a part hereof, said description having been initialed by both Parties where indicated. The street address of the Real Property is .

2. This Real Property is the same property with its description described and recorded in the Deed Books of the County Register of Deeds Office, in Deed Book , at Pages .

3. Said Real Property includes all fixtures, landscaping, improvements, and appurtenances, located thereon and/or attached thereto.

4. Purchase Price. The total purchase price for the Property shall be U.S. Dollars, ($ ), hereinafter referred to as the Purchase Price, and is subject to all prorations and adjustments and shall be paid by Buyer at the Closing by wire transfer of immediately available funds, cashier’s check or certified check.

5. Earnest Money. Buyer has deposited the sum of $ as Earnest Money with of , hereinafter called the Holder.

6. Said Earnest Money has been received by Holder and is to be applied as part of the Purchase Price at Closing. Said Earnest Money shall be deposited in Holder’s escrow account within three (3) banking days from the execution of this Agreement by the Parties hereto. In the event any Earnest Money check is not honored, for any reason, by the financial institution from which it is drawn, Holder shall promptly notify Buyer and Seller. Buyer shall have three (3) business days after notice to deliver good funds to Holder. In the event Buyer does not timely deliver good funds to Holder, this Agreement shall automatically terminate and Holder shall notify the Parties of the same.

7. Holder shall disburse said Earnest Money only as follows:

A. At Closing, to be applied as a credit toward Buyer’s Purchase Price;

B. Upon a subsequent written agreement signed by Buyer and Seller;

C. As set forth below in the event of a dispute regarding Earnest Money.

8. Disputes Regarding Earnest Money. In the event the Buyer or Seller notifies Holder of a dispute regarding disposition of the Earnest Money that Holder cannot resolve, Buyer and Seller agree that said dispute shall be resolved by binding arbitration of the Parties hereto. If the Parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

9. Inspection. Prior to Closing, Buyer and Buyer’s agents shall have the right to enter upon the Property at Buyer’s expense and at reasonable times, to inspect, survey, examine, and test the Property as Buyer may deem necessary as part of Buyer’s acquisition of the Property. Buyer may, for a fee, obtain a septic system inspection letter from the Tennessee Department of Environment and Conservation, Division of Ground Water Protection. Buyer shall indemnify and hold Seller harmless from and against any and all claims, injuries, and damages to persons and/or property arising out of or related to the exercise of Buyer’s rights hereunder. Buyer shall have days after the execution of this Agreement by both Buyer and Seller (the Due Diligence Period) to evaluate the Property, the feasibility of the transaction, availability and cost of financing, and any other matter of concern to Buyer. During the Due Diligence Period, Buyer shall have the right to terminate this Agreement upon notice to Seller if Buyer determines, based on a reasonable and good faith evaluation of the above, that it is not desirable to proceed with the transaction, and the Buyer will be entitled to a refund of the Earnest Money. Within days after the Execution of this Agreement by Buyer and Seller, Seller shall deliver to Buyer copies of the materials concerning the Property referenced in Exhibit B attached hereto and made a part hereof (collectively the Due Diligence Materials), which materials shall be promptly returned by Buyer if Agreement does not close for any reason. If Buyer fails to timely notify Seller that it is not proceeding with the transaction, Buyer shall waive his rights to terminate this Agreement pursuant to this Paragraph.

11. Title.

A. Warranties of Seller. Seller warrants that at Closing, Seller shall convey good and marketable, fee simple title to the Property to Buyer, subject only to the following exceptions :

(i) Liens for ad valorem taxes not yet due and payable.

(ii) Those exceptions to which Buyer does not object or which Buyer waives in accordance with the Title Objections paragraph below. “Good and marketable, fee simple title” with respect to the Property shall be such title:

(a) As is classified as marketable under the laws of Tennessee; and

(b) As is acceptable to and insurable by a title company doing business in Tennessee , at standard rates on an American Land Title Association Owner’s Policy .

B. Title Issues and Objections. Buyer shall have days after the Binding Agreement Date to furnish Seller with a written statement of any title objections, UCC-1 or UCC-2 Financing Statements, and encroachments, and other facts affecting the marketability of the Property as revealed by a current title examination. Seller shall have days after the receipt of such objections (the Title Cure Period) to cure all valid title objections. Seller shall satisfy any existing liens or monetary encumbrances identified by Buyer as title objections which may be satisfied by the payment of a sum certain prior to or at Closing.

Except for Seller’s obligations in the preceding sentence, if Seller fails to cure any other valid title objections of Buyer within the Title Cure Period (and fails to provide Buyer with evidence of Seller’s cure satisfactory to Buyer and to the Title Company), then within five (5) days after the expiration of the Title Cure Period, Buyer may as Buyer’s sole remedies:

(i) Rescind the transaction contemplated hereby, in which case Buyer shall be entitled to the return of Buyer’s Earnest Money;

(ii) Waive any such objections and elect to close the transaction contemplated hereby irrespective of such title objections and without reduction of the Purchase Price; or

(iii) Extend the Closing Date period for a period of up to fifteen (15) days to allow Seller further time to cure such valid title objections. Failure to act in a timely manner under this Paragraph shall constitute a waiver of Buyer’s rights hereunder. Buyer shall have the right to reexamine title prior to Closing and notify Seller at Closing of any title objections which appear of record after the date of Buyer’s initial title examination and before Closing.

12. Closing.

A. Closing Date. This transaction shall be consummated at the office of at on , (the Closing Date) or at such other time and place(s) the Parties may agree upon in writing.

B. Possession. Seller shall deliver possession and occupancy of the Property to Buyer at Closing, subject only to the rights of tenants in possession and the Permitted Exceptions.

13. Seller’s Obligations at Closing. At Closing, Seller shall deliver to Buyer:

A. A Closing Statement;

B. General Warranty Deed;

C. All documents which Seller must execute under the terms of this Agreement to cause the Title Company to deliver to Buyer the Title Policy including, without limitation, a Title Affidavit from Seller to Buyer and to the Title Company in the form customarily used in Tennessee commercial real estate transactions so as to enable the Title Company to issue Buyer the Title Policy with all standard exceptions deleted and subject only to Permitted Exceptions; and

D. Evidence reasonably satisfactory to Buyer at Closing of all documents/items indicated in Exhibit C, if any (all documents to be delivered by Seller under this Paragraph, including all documents/items indicated in Exhibit C are collectively Seller’s Closing Documents).

14. Conditions to Closing.

15. Costs.

A. Seller’s Costs. Seller shall pay the cost of recording any title curative documents, including without limitation, satisfactions of deeds to secure debt, quitclaim deeds and financing statement termination; all deed recording fees; the fees of Seller’s counsel and, if checked:

All transfer taxes, otherwise Buyer is responsible for transfer taxes.

In the event Seller is subject to Tax Withholding as required by the Foreign Investment Tax Act, (hereinafter FIRPTA), Seller additionally agrees that such Tax Withholding must be collected from Seller by Buyer at the time of Closing. In the event Seller is not subject to FIRPTA, Seller shall be required, as a condition of Closing, to sign appropriate affidavits certifying that Seller is not subject to FIRPTA. It is Seller’s responsibility to seek independent tax advice or counsel prior to the Closing Date regarding such tax matters.

B. Buyer’s Costs. Buyer shall pay the cost of Buyer’s counsel and consultants; any costs in connection with Buyer’s inspection of the Property and any costs associated with obtaining financing for the acquisition of the Property (including any intangibles tax, all deed recording fees and the cost of recording Buyer’s loan documents.)

C. Additional Costs. In addition to the costs identified above, the following costs shall be paid by the Parties hereto as indicated below:

Item to be Paid

SurveyPaid by Seller    Paid by Buyer

Title ExaminationPaid by Seller    Paid by Buyer

Premium for Standard Owner’s Title Insurance PolicyPaid by Seller    Paid by Buyer

Other: Paid by Seller    Paid by Buyer

16. Taxes and Prorations. Real estate taxes on the Property for the calendar year in which the Closing takes place shall be prorated as of 12:01 a.m. local time on the Closing Date. Seller shall be responsible (even after Closing) for paying all taxes (including previous reassessments) on the Property for the time period during which Seller owned the Property and shall indemnify the Buyer therefore. In addition, the following items shall also be prorated as of 12:01 a.m. local time on the Closing Date:

Utilities    Service Contracts    Tenant Improvement Costs

Rents    Leasing Commissions    Other:

17. Representations and Warranties.

A. Seller’s Representations and Warranties. As of the Closing Date, Seller represents and warrants to Buyer that Seller has the right, power, and authority to enter into this Agreement and to convey the Property in accordance with the terms and conditions of this Agreement. The persons executing this Agreement on behalf of Seller have been duly and validly authorized by Seller to execute and deliver this Agreement and shall have the right, power, and authority to enter into this Agreement and to bind Seller. Seller also makes the additional representations and warranties to Buyer, if any, as indicated on Exhibit D.

B. Buyer’s Representations and Warranties. As of the Closing Date, Buyer represents and warrants to Seller that Buyer has the right, power, and authority to enter into this Agreement and to consummate the transaction contemplated by the terms and conditions of this Agreement. The persons executing this Agreement on behalf of Buyer have been duly and validly authorized by Buyer to execute and deliver this Agreement and shall have the right, power, and authority to enter into this Agreement and bind Buyer. Upon Seller’s request, Buyer shall furnish such documentation evidencing signer’s authority to bind Buyer.

18. Destruction of Property Prior to Closing. If the Property is destroyed or substantially destroyed prior to closing, Seller shall give Buyer prompt notice thereof, which notice shall include Seller’s reasonable estimate of: (i) the cost to restore and repair the damage; (ii) the amount of insurance proceeds, if any available for the same; and (iii) whether the damage will be repaired prior to Closing. Upon notice to Seller, Buyer may terminate this Agreement within seven (7) days after receiving such notice from Seller. If Buyer does not terminate this Agreement, Buyer shall be deemed to have accepted the Property with the damage and shall receive at closing (a) any insurance proceeds which have been paid to Seller but not yet spent to repair the damage and (b) an assignment of all unpaid insurance proceeds on the claim. Buyer may request in writing, and Seller shall provide within five (5) business days, all documentation necessary to confirm insurance coverage and/or payment or assignment of insurance proceeds.

19. Other Provisions.

A. Exhibits, Binding Effect, Entire Agreement, Modification, Assignment, and Binding Agreement Date. This Agreement shall be for the benefit of, and be binding upon, the Parties hereto, their heirs, successors, legal representatives and assigns. This Agreement constitutes the sole and entire agreement between the Parties hereto and no modification of this Agreement shall be binding unless signed by all Parties or assigns to this Agreement. No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto. Any assignee shall fulfill all the terms and conditions of this Agreement.

B. Survival Clause. Any provision herein contained, which by its nature and effect, is required to be performed after Closing shall survive the Closing and delivery of the Deed and shall remain binding upon the Parties to this Agreement and shall be fully enforceable thereafter. Notwithstanding the above, any representations and warranties made in Exhibit D shall survive the Closing for a period of days after the date of Closing.

C. Governing Law and Venue. This Agreement is intended as a contract for the purchase and sale of real property and shall be interpreted in accordance with the laws and in the courts of the state of Tennessee.

D. Time of Essence. Time is of the essence in this Agreement.

E. Terminology. As the context may require in this Agreement: (i) the singular shall mean the plural and vice versa; (ii) all pronouns shall mean and include the person, entity, firm, or corporation to which they relate; (iii) the feminine shall mean the masculine and vice versa; and (iv) the term day(s) used throughout this Agreement shall be deemed to be calendar day(s) ending at 11:59 p.m. local time unless otherwise specified in this Agreement. Local time is to be determined by the location of the Property. All references to time are deemed to be local time. In the event a performance deadline, other than the Closing Date (in Paragraph 12-A), or Day of Possession (in Paragraph 12-B), occurs on a Saturday, Sunday or legal holiday, the performance deadline shall be extended to the next following business day. Holidays as used herein are those days deemed federal holidays pursuant to 5 U.S.C. § 6103.

F. Responsibility to Cooperate. Buyer and Seller agree to timely take such actions and produce, execute, and/or deliver such information and documentation as is reasonably necessary to carry out the responsibilities and obligations of this Agreement. Except as to matters which are occasioned by clerical errors or omissions or erroneous information, the approval of the Closing documents by the Parties shall constitute their approval of any differences between this Agreement and the Closing. The Buyer and Seller agree that if requested after Closing they will correct any documents and pay any amounts due where such corrections or payments are appropriate by reason of mistake, clerical errors or omissions, or the result of erroneous information.

G. Notices. Except as otherwise provided herein, all notices and demands required or permitted hereunder shall be in writing and delivered either (i) in person, (ii) by a prepaid overnight delivery service, (iii) by facsimile transmission (FAX), (iv) by the United States Postal Service, postage prepaid, registered or certified return receipt requested or (v) Email. NOTICE shall be deemed to have been given as of the date and time it is actually received.

H. Remedies. In the event of a breach of this Agreement, the non-breaching party may pursue all remedies available at law or in equity except where the Parties have agreed to arbitrate. Notwithstanding the above, if Buyer breaches Buyer’s obligations or warranties herein Seller shall have the option to request that Holder pay the Earnest Money to Seller, which if disbursed to Seller by Holder shall constitute liquidated damages in full settlement of all claims by Seller. Such liquidated damages are agreed to by the Parties not to be a penalty and to be a good faith estimate of Seller’s actual damages, which damages are difficult to ascertain. In the event that any party hereto shall file suit for breach or enforcement of this Agreement (including suits filed after closing which are based on or related to the Agreement), the prevailing party shall be entitled to recover all costs of such enforcement, including reasonable attorney’s fees.

19. Other Provisions continued.

I. Equal Opportunity. This Property is being sold without regard to race, color, sex, religion, handicap, familial status, or national origin.

J. Termination by Buyer. In the event that Buyer legally and properly invokes his right to terminate this Agreement under any of the provisions contained herein, Buyer shall pay the sum of one hundred dollars ($100.00) to Seller as consideration for Buyer’s said right to terminate, the sufficiency and adequacy of which is hereby acknowledged. Earnest Money shall be disbursed according to the terms stated herein.

K. Severability. If any portion or provision of this Agreement is held or adjudicated to be invalid or unenforceable for any reason, each such portion or provision shall be severed from the remaining portions or provisions of this Agreement, and the remaining portions or provisions shall be unaffected and remain in full force and effect.

20. Exhibited and Addenda. All exhibits and/or addenda attached hereto, listed below, or referenced herein are made a part of this Agreement. If any such exhibit or addendum conflicts with any preceding paragraph, said exhibit or addendum shall control:

• Exhibit A Legal Description;

• Exhibit B Due Diligence Documents;

• Exhibit C Addition to Seller’s Closing Documents; and

• Exhibit D Seller’s Warranties and Representations.

21. Method of Execution. The Parties agree that signatures and initials transmitted by a facsimile, other photocopy transmittal, or by transmittal of digital signature as defined by the applicable State or Federal Law will be acceptable and may be treated as originals and that the final Commercial Purchase and Sale Agreement containing all signatures and initials may be executed partially by original signature and partially on facsimile, other photocopy documents, or by digital signature as defined by the applicable State or Federal Law.

22. Agreement. By affixing your signature below, you acknowledge that you have reviewed each page and have received a copy of this Agreement.

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WITNESS our signatures as of the day and date first above stated.