COMMERCIAL PURCHASE AND SALE AGREEMENT

(Massachusetts Commercial Real Estate)

[// GUIDANCE: This template is drafted to comply with Massachusetts real estate law and customary practice for commercial transactions. It uses optional and negotiable provisions flagged by brackets. Practitioners should tailor each bracketed term before execution.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
   3.1 Purchase and Sale
   3.2 Purchase Price; Payment Terms
   3.3 Earnest Money Deposit
   3.4 Conditions Precedent
   3.5 Closing
4. Representations & Warranties
   4.1 Seller Representations
   4.2 Purchaser Representations
   4.3 Survival; Limitations
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
   7.1 Environmental Indemnity
   7.2 Limitation of Liability
   7.3 Insurance
   7.4 Force Majeure
8. Dispute Resolution
9. General Provisions
10. Execution Block

[// GUIDANCE: Auto-generated cross-references (e.g., “Section 3.2”) assume no subsequent renumbering. If provisions are added or removed, update numbering accordingly.]

1. DOCUMENT HEADER

THIS COMMERCIAL PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

1. [SELLER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE] (“Seller”); and
2. [PURCHASER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE] (“Purchaser”).

Seller and Purchaser are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

A. Seller is the fee simple owner of certain real property commonly known as “[PROPERTY NAME]” located at [STREET ADDRESS, CITY/TOWN, COUNTY], Massachusetts, as more particularly described in Exhibit A attached hereto (the “Land”), together with (i) all improvements situated thereon (collectively, the “Improvements”), (ii) all rights, privileges, easements, hereditaments and appurtenances belonging thereto (the “Appurtenances”), and (iii) all personal property, fixtures and intangible rights described in Exhibit B (collectively, the “Personal Property”) (the Land, Improvements, Appurtenances and Personal Property are referred to herein as the “Property”).

B. Seller desires to sell the Property to Purchaser, and Purchaser desires to purchase the Property from Seller, upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

For ease of reference, the following capitalized terms shall have the meanings set forth below. Terms defined in this Section appear throughout this Agreement.

“Affiliate” – Any entity directly or indirectly controlling, controlled by, or under common control with a Party.
“Applicable Law” – All federal, state, and local statutes, ordinances, rules, regulations and judicial decisions, including without limitation those pertaining to environmental, zoning, land use, building, and health and safety matters, in effect on or prior to the Closing Date.
“Business Day” – Any day other than Saturday, Sunday or a day on which state-chartered banks in the Commonwealth of Massachusetts are required or authorized to close.
“Closing” – The consummation of the purchase and sale of the Property pursuant to Section 3.5.
“Closing Date” – The date on which the Closing occurs, being [CLOSING DATE], or such other date as the Parties may mutually agree in writing.
“Contract Deposit” – The earnest money described in Section 3.3.
“Environmental Laws” – All Applicable Laws relating to protection of the environment or human health, including without limitation those governing Hazardous Substances.
“Escrow Agent” – [NAME OF ESCROW AGENT], or any successor escrow holder agreed upon by the Parties.
“Hazardous Substance” – Any substance, chemical or material defined or regulated as hazardous, toxic, contaminating, polluting or otherwise harmful under Environmental Laws, including petroleum and petroleum products.
“Permitted Exceptions” – Those title matters approved or deemed approved by Purchaser in accordance with Section 3.4.2.
“Title Company” – [TITLE COMPANY NAME] issuing the Title Policy defined in Section 3.4.2(b).

[// GUIDANCE: Definitions may be expanded or narrowed to fit the specific transaction.]

3. OPERATIVE PROVISIONS

3.1 Purchase and Sale

Subject to the terms and conditions of this Agreement, Seller agrees to sell, convey and assign to Purchaser, and Purchaser agrees to purchase from Seller, all of Seller’s right, title and interest in and to the Property for the consideration and on the terms set forth herein.

3.2 Purchase Price; Payment Terms

The total purchase price (the “Purchase Price”) shall be [PURCHASE PRICE IN WORDS] Dollars (US $[NUMERALS]), payable as follows:

a. Contract Deposit. The Contract Deposit described in Section 3.3.
b. Balance at Closing. The balance of the Purchase Price (subject to prorations and adjustments under Section 3.5.4) shall be paid by wire transfer of immediately available federal funds to Escrow Agent on the Closing Date.

[// GUIDANCE: Insert financing contingencies, third-party lender requirements, or all-cash language as applicable.]

3.3 Earnest Money Deposit

Within [THREE (3)] Business Days after the Effective Date, Purchaser shall deposit with Escrow Agent the sum of [DEPOSIT AMOUNT] (the “Deposit”) by wire transfer. The Deposit shall be held in an interest-bearing account and applied or disbursed as follows:

a. Applied to Purchase Price at Closing;
b. Returned to Purchaser if this Agreement terminates due to Seller default or failure of a Purchaser condition precedent; or
c. Retained by Seller as liquidated damages pursuant to Section 6.2 in the event of Purchaser default.

3.4 Conditions Precedent

3.4.1 Purchaser’s Due Diligence

(a) Inspection Period. Purchaser shall have until 5:00 p.m. Eastern Time on [DUE DILIGENCE EXPIRATION DATE] (the “Inspection Period”) to conduct, at Purchaser’s sole cost, any physical, financial, environmental, zoning and legal investigations of the Property deemed necessary or desirable.
(b) Access; Indemnity. Seller shall provide reasonable access during normal business hours upon at least one (1) Business Day’s advance notice. Purchaser shall restore any physical alterations and indemnify Seller against claims arising from Purchaser’s entry, except to the extent caused by Seller’s negligence or willful misconduct.

[// GUIDANCE: Insert confidentiality obligations if sensitive information is involved.]

3.4.2 Title and Survey

(a) Title Commitment. Seller shall cause the Title Company to deliver to Purchaser, within five (5) Business Days after the Effective Date, a commitment for an ALTA Owner’s Policy of Title Insurance, together with copies of all exception documents (collectively, the “Commitment”).
(b) Title Objections. Purchaser shall have until the earlier of (i) expiration of the Inspection Period or (ii) ten (10) Business Days after receipt of the last of the Commitment and the Survey (the “Objection Deadline”) to deliver written notice of title or survey objections (“Title Objections”). Seller shall have five (5) Business Days after receipt to notify Purchaser whether Seller agrees to cure. If Seller declines or fails to cure any Title Objection, Purchaser may (A) waive such objection and proceed to Closing, or (B) terminate this Agreement and receive a refund of the Deposit.
(c) Permitted Exceptions. Matters approved or waived by Purchaser, or deemed approved by failure to object timely, shall constitute “Permitted Exceptions.”

3.4.3 Zoning Compliance

Purchaser’s obligation to close is conditioned upon Purchaser’s receipt, on or before the Inspection Period expiration, of written confirmation from [APPLICABLE MUNICIPALITY] or a qualified zoning consultant that the current zoning classification permits Purchaser’s intended use (the “Zoning Confirmation”). Failure to obtain Zoning Confirmation shall entitle Purchaser to terminate this Agreement and receive an immediate refund of the Deposit.

3.4.4 Environmental Assessment

Purchaser may conduct a Phase I Environmental Site Assessment (and, if recommended, a Phase II) in conformance with ASTM E1527-21 standards. If the assessment discloses any Recognized Environmental Condition (“REC”) that is not fully remediated to applicable standards prior to Closing, Purchaser may:
(a) require Seller to remediate the REC in a manner satisfactory to Purchaser and in compliance with Environmental Laws;
(b) negotiate a price reduction; or
(c) terminate this Agreement and receive the Deposit.

3.5 Closing

3.5.1 Location and Method

Closing shall take place on the Closing Date via escrow with the Title Company or at such other place and by such other method (including remote mail-away or electronic delivery) as the Parties may agree.

3.5.2 Seller Closing Deliverables

Seller shall deliver:
1. Duly executed quitclaim deed in the statutory form sufficient to convey good and clear record and marketable title to the Land and Improvements, subject only to the Permitted Exceptions;
2. Bill of Sale for the Personal Property;
3. Assignment and Assumption of Leases and Security Deposits, and originals (or certified copies) of all leases;
4. Assignment of Contracts, Warranties and Permits;
5. Non-Foreign Person affidavit under IRC § 1445 (FIRPTA);
6. Bring-down certificate reconfirming Seller’s representations; and
7. Such additional documents reasonably requested by Title Company.

3.5.3 Purchaser Closing Deliverables

Purchaser shall deliver:
1. Closing payment of the Purchase Price balance;
2. Counterparts of assignments and other instruments listed in Section 3.5.2 requiring Purchaser’s execution; and
3. Such affidavits and certificates reasonably required by Title Company.

3.5.4 Prorations and Adjustments

Taxes, rents, operating expenses, utilities, and other income and expenses of the Property shall be prorated as of 11:59 p.m. on the day immediately preceding the Closing Date in accordance with local custom, using the best available information.

3.5.5 Recording & Possession

Upon release of the deed for recording in the applicable Registry of Deeds, title to the Property shall pass to Purchaser and possession shall be delivered, subject only to Permitted Exceptions and rights of tenants under existing Leases.

4. REPRESENTATIONS & WARRANTIES

4.1 Seller Representations

Seller represents and warrants to Purchaser as of the Effective Date and as of Closing that:

a. Authority. Seller is duly formed, validly existing, and in good standing under the laws of its state of formation and has full power to execute and perform this Agreement.
b. No Conflict. The execution and performance of this Agreement will not violate any organizational document, judgment, order or agreement binding upon Seller.
c. Title. Seller owns fee simple title to the Property, free and clear of all liens and encumbrances other than the Permitted Exceptions, and has not entered into any contracts to sell, mortgage or otherwise encumber the Property that will survive Closing.
d. Compliance with Laws. To Seller’s knowledge, Seller has not received written notice of any material violation of Applicable Law (including Environmental Laws and zoning requirements) that remains uncured.
e. Hazardous Substances. Except as disclosed in Schedule 4.1(e), Seller has not received written notice of any pending governmental investigation or claim relating to the release of Hazardous Substances on, under or emanating from the Property.
f. Litigation. There are no legal actions or proceedings pending or, to Seller’s knowledge, threatened against Seller that would materially and adversely affect Seller’s ability to perform hereunder.
g. Leases and Contracts. All leases, service contracts, and other agreements affecting the Property are accurately described on Schedule 4.1(g); true and complete copies have been or will be provided to Purchaser upon request.

4.2 Purchaser Representations

Purchaser represents and warrants to Seller that:

a. Authority. Purchaser is duly formed, validly existing, in good standing, and authorized to transact business in Massachusetts or will qualify to do so prior to Closing; and
b. No Conflict. The execution and performance of this Agreement will not violate any organizational document, judgment, order or agreement binding upon Purchaser.

4.3 Survival; Limitations

Seller’s representations in Sections 4.1(c) (Title), 4.1(e) (Hazardous Substances), and 4.1(f) (Litigation) shall survive Closing for [TWELVE (12)] months (the “Survival Period”); all other Seller representations shall merge into the deed at Closing and not survive. Any claim for breach must be made in writing prior to expiration of the Survival Period and is subject to the liability cap in Section 7.2.

5. COVENANTS & RESTRICTIONS

5.1 Interim Operations. Between the Effective Date and Closing, Seller shall:
a. operate and maintain the Property in substantially the same manner as before;
b. not enter into, amend or terminate any lease or material contract without Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
c. promptly notify Purchaser of any material adverse change or casualty; and
d. maintain existing insurance coverage.

5.2 Access for Pre-Closing Walk-Through. Purchaser shall have the right to perform a walk-through inspection within twenty-four (24) hours prior to Closing to confirm satisfaction of Seller’s covenants under this Section.

6. DEFAULT & REMEDIES

6.1 Seller Default. If Seller fails to consummate the Closing in accordance with this Agreement or otherwise materially breaches its obligations, Purchaser may, as its sole and exclusive remedies:
a. seek specific performance of Seller’s obligations, together with reasonable costs and expenses, it being acknowledged that the Property is unique and damages are an inadequate remedy; or
b. terminate this Agreement and receive immediate return of the Deposit, plus reimbursement of documented out-of-pocket costs not to exceed US $[CAP ON COST REIMBURSEMENT].

6.2 Purchaser Default. If Purchaser fails to close in breach of this Agreement after satisfaction or waiver of all conditions, Seller shall retain the Deposit as agreed-upon liquidated damages, the Parties acknowledging that actual damages are difficult to ascertain and the Deposit constitutes a reasonable estimate thereof. Seller waives any other remedy for Purchaser’s failure to close.

[// GUIDANCE: For transactions where specific performance may be granted to Seller as well, delete the liquidated damages limitation and state both parties may pursue all remedies.]

7. RISK ALLOCATION

7.1 Environmental Indemnity (Seller)

Seller shall indemnify, defend and hold Purchaser and its Affiliates, members, managers, shareholders, officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and remediation costs) arising out of or resulting from (a) the presence, release or threatened release of any Hazardous Substance at, on, under or migrating from the Property prior to the Closing Date, and (b) any violation of Environmental Laws pertaining to conditions existing prior to Closing (collectively, “Environmental Claims”). This Section shall survive Closing for a period of [THREE (3)] years, subject to the cap in Section 7.2.

7.2 Limitation of Liability

Seller’s aggregate liability for breaches of representations, warranties, covenants and Environmental Claims under this Agreement shall not exceed [___ % OF PURCHASE PRICE]/[MONETARY CAP], except that the cap shall not apply to (i) willful misconduct or fraud, or (ii) Seller’s obligation to deliver good and clear record and marketable title.

[// GUIDANCE: Parties frequently adopt a “basket” or “deductible” before indemnity applies; insert if desired.]

7.3 Insurance

Until the Closing Date, Seller shall maintain all-risk property insurance and commercial general liability insurance with limits not less than those maintained on the Effective Date. Purchaser shall obtain, effective as of Closing, (i) property insurance covering the Replacement Cost of the Improvements, and (ii) commercial general liability insurance with combined single limits of not less than US $[AMOUNT] per occurrence.

7.4 Force Majeure

Neither Party shall be liable for failure to perform hereunder due to causes beyond its reasonable control, including acts of God, war, terrorism, pandemic, civil commotion, labor disputes, governmental action or shortages of materials; provided, however, that (a) the affected Party shall promptly give written notice to the other Party, (b) performance shall be excused only for the period of delay, not to exceed thirty (30) days, and (c) force majeure shall not excuse payment obligations or deliveries required at Closing.

8. DISPUTE RESOLUTION

8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts (without regard to conflict-of-laws rules).

8.2 Forum Selection. Each Party irrevocably submits to the exclusive jurisdiction of the state courts of the Commonwealth of Massachusetts sitting in [COUNTY] County, and agrees that any action arising out of or relating to this Agreement shall be brought only in such courts.

8.3 Arbitration. [OPTIONAL – if elected by checked box in Section 8.6 below] Any dispute not resolved by negotiation within thirty (30) days shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitral panel shall consist of one (1) neutral arbitrator with at least ten (10) years of commercial real estate experience. Judgment upon the award may be entered in any court of competent jurisdiction.

8.4 Jury Trial Waiver. [OPTIONAL] TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT.

8.5 Injunctive Relief / Specific Performance. The Parties acknowledge that the Property is unique and that monetary damages may be inadequate; therefore, specific performance is an appropriate remedy for breach of this Agreement, in addition to any other remedy at law or equity.

8.6 Election of Optional Provisions (check applicable box):
☐ Arbitration (Section 8.3)      ☐ Jury Waiver (Section 8.4)

9. GENERAL PROVISIONS

9.1 Notices. Any notice, demand or other communication (“Notice”) required or permitted hereunder shall be in writing and deemed given (a) when delivered in person, (b) one (1) Business Day after deposit with a reputable overnight courier for next-day delivery, or (c) upon confirmed receipt of electronic mail transmission (with a copy sent by courier), addressed to the Parties at the addresses set forth below (or such other address as a Party may designate by Notice).

9.2 Entire Agreement; Amendments. This Agreement, including all exhibits and schedules, constitutes the entire agreement between the Parties and supersedes all prior understandings. No modification shall be effective unless made in writing and signed by both Parties.

9.3 Assignment. Purchaser may not assign this Agreement without Seller’s prior written consent, except to (i) an Affiliate of Purchaser that controls, is controlled by, or is under common control with Purchaser, or (ii) an entity formed for the purpose of acquiring the Property and controlled by the principals of Purchaser. Any permitted assignment shall not relieve Purchaser of its obligations herein.

9.4 Severability. If any provision of this Agreement is adjudicated invalid, illegal or unenforceable, the remaining provisions shall remain in full force provided the essential terms remain unimpaired.

9.5 Waiver. No waiver of any breach shall be deemed a waiver of any subsequent breach, nor shall any failure or delay to exercise any right operate as a waiver thereof.

9.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. Signatures transmitted electronically (e.g., by .pdf or DocuSign) shall be deemed originals for all purposes.

9.7 Further Assurances. Each Party agrees to execute and deliver such further documents and instruments as may be reasonably necessary to consummate the transactions contemplated herein.

9.8 Time of the Essence. Time is of the essence with respect to all obligations under this Agreement.

10. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

SELLER:
[SELLER LEGAL NAME]
By: ____
Name: [_]
Title: [____]

Date: ______

PURCHASER:
[PURCHASER LEGAL NAME]
By: ____
Name: [_]
Title: [____]

Date: ______

[NOTARY BLOCKS AND/OR WITNESS ATTESTATIONS – insert if required to record deed signatures in Massachusetts.]

EXHIBIT A – Legal Description of Land

[Attach metes and bounds or other legal description.]

EXHIBIT B – Personal Property

[List furniture, fixtures, equipment, intellectual property, licenses, etc.]

EXHIBIT C – Form of Deed

[Attach statutory quitclaim deed form.]

SCHEDULE 4.1(e) – Environmental Disclosures

[If none, state “None.”]

SCHEDULE 4.1(g) – Leases and Contracts

[Insert matrix of tenants, lease dates, expiration, options, deposits, etc.]

[// GUIDANCE: Consider adding additional exhibits for Service Contracts, Rent Roll, ALTA Survey, Title Commitment, or Assignment Agreements as needed.]

[// GUIDANCE: Prior to circulation, verify that (a) the deed form complies with Mass. Gen. Laws ch. 183 and ch. 184, (b) any Massachusetts Realty Transfer Tax or recording fees are addressed, (c) municipal lien certificate and smoke detector certificates (if applicable to commercial property) are obtained, and (d) all brokerage relationships have been disclosed in accordance with 254 CMR 3.00.]