COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
(Missouri Governed)
[// GUIDANCE: This template is intentionally drafted at a high level of sophistication. Delete or modify any bracketed language before execution. Confirm all state-specific requirements with local counsel.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Purchase and Sale of Property
- Purchase Price; Deposit; Adjustments
- Due Diligence; Title and Survey Matters
- Conditions Precedent and Subsequent
- Closing
- Representations and Warranties
- Covenants
- Environmental Matters
- Zoning and Land-Use Compliance
- Indemnification; Risk Allocation
- Defaults and Remedies
- Dispute Resolution
- Miscellaneous / General Provisions
- Execution Block
Exhibits
A – Legal Description of the Real Property
B – Permitted Exceptions
C – Form of Deed
D – FIRPTA Certificate
E – Seller Closing Certificate
F – Tenant Estoppel Certificate (if applicable)
G – Environmental Indemnity Agreement
1. DOCUMENT HEADER
COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT (“Agreement”) made and entered into as of the Effective Date (defined below), by and between:
- [SELLER LEGAL NAME], a [STATE] [ENTITY TYPE], with principal office at [ADDRESS] (“Seller”); and
- [BUYER LEGAL NAME], a [STATE] [ENTITY TYPE], with principal office at [ADDRESS] (“Buyer”).
Seller and Buyer 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 located in [COUNTY], Missouri, more particularly described on Exhibit A (the “Land”), together with all improvements, fixtures, easements, and associated personal property, as set forth in Section 2 (“Property”).
B. Buyer desires to purchase, and Seller desires to sell, the Property on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:
Effective Date: [INSERT DATE UPON MUTUAL EXECUTION]
Governing Law: State of Missouri (without regard to conflicts principles).
Forum Selection: [SPECIFY COUNTY] Circuit Court, State of Missouri.
2. DEFINITIONS
For ease of reference, capitalized terms used in this Agreement have the meanings set forth below:
“Affiliate” – Any entity controlling, controlled by, or under common control with a Party.
“Approval Period” – The period commencing on the Effective Date and expiring at 5:00 p.m. Central Time on [DATE].
“Business Day” – Any day other than Saturday, Sunday, or a Missouri state or U.S. federal holiday.
“Closing” – The consummation of the conveyance of the Property pursuant to Section 7.
“Closing Date” – [DATE], or such other date as the Parties may mutually agree.
“Closing Agent/Escrow Agent” – [TITLE COMPANY].
“Deposit” – The earnest money deposit described in Section 4.2.
“Environmental Laws” – Any applicable federal, state, or local statutes, regulations, ordinances, and common-law doctrines relating to pollution, hazardous substances, or protection of the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq.
“Hazardous Materials” – Any substance regulated or defined as hazardous or toxic under Environmental Laws.
“Permitted Exceptions” – Title exceptions approved by Buyer in accordance with Section 5.2 and listed on Exhibit B.
“Property” – Collectively, the Land, improvements, appurtenances, intangible rights, and personal property described in Section 3.1.
“Purchase Price” – The consideration specified in Section 4.1.
“Survival Period” – The period for which certain covenants, representations, warranties, and indemnities survive Closing, as set forth herein.
[// GUIDANCE: Add or delete defined terms to match transaction specifics.]
3. PURCHASE AND SALE OF PROPERTY
3.1 Property Conveyed. Subject to the terms herein, Seller agrees to sell, and Buyer agrees to purchase, all of Seller’s right, title, and interest in and to:
a. The Land;
b. All buildings, structures, and other improvements on the Land (collectively, the “Improvements”);
c. Seller’s interest in all easements, rights-of-way, development rights, air, water, and mineral rights appurtenant to the Land;
d. All leases, licenses, and occupancy agreements affecting the Property (collectively, the “Leases”), together with the security deposits listed on a schedule to be delivered at Closing;
e. All assignable warranties and guaranties relating to the Improvements; and
f. All tangible personal property owned by Seller and located on the Property, if any (collectively, the “Personal Property”).
3.2 Conveyance Instrument. Fee simple title to the Land and Improvements shall be conveyed by Missouri general warranty deed in the form attached as Exhibit C (the “Deed”), subject only to the Permitted Exceptions.
4. PURCHASE PRICE; DEPOSIT; ADJUSTMENTS
4.1 Purchase Price. Buyer shall pay Seller $[AMOUNT] (“Purchase Price”), subject to adjustments and prorations as provided herein.
4.2 Deposit.
a. Within two (2) Business Days after the Effective Date, Buyer shall deposit $[_____ ] (“Initial Deposit”) with Escrow Agent by wire transfer.
b. Upon expiration of the Approval Period without Buyer’s timely termination, Buyer shall deposit an additional $[_____ ] (“Additional Deposit”).
c. The Deposit, together with any interest, shall be applied to the Purchase Price at Closing or disbursed as otherwise provided herein.
4.3 Prorations and Closing Adjustments. Taxes, assessments, rents, operating expenses, and other customary items shall be prorated as of 11:59 p.m. Central Time on the day preceding the Closing Date.
4.4 Financing Contingency [OPTIONAL]. Buyer’s obligation to close is [contingent / NOT contingent] upon securing a loan in the principal amount of $[AMOUNT] on or before [DATE].
5. DUE DILIGENCE; TITLE AND SURVEY MATTERS
5.1 Access; Deliveries. During the Approval Period, Seller shall provide Buyer and its agents reasonable access to the Property and deliver to Buyer copies of all title policies, surveys, environmental reports, building plans, service contracts, and other due-diligence materials in Seller’s possession.
5.2 Title Review.
a. Title Commitment. Within five (5) Business Days after the Effective Date, Seller shall cause the Title Company to issue a commitment for an ALTA owner’s policy of title insurance (the “Commitment”) together with copies of all recorded documents listed therein.
b. Title Objections. Buyer may object to any exception shown in the Commitment or disclosed by the Survey by written notice (“Title Objection Notice”) to Seller not later than the end of the Approval Period.
c. Cure Period. Seller shall have five (5) Business Days to elect to cure such objections. If Seller elects or is deemed to decline to cure, Buyer may either (i) terminate this Agreement and receive a refund of the Deposit or (ii) proceed to Closing, in which event the contested items shall be deemed Permitted Exceptions.
5.3 Survey. Buyer may, at its cost, obtain a current ALTA/NSPS land title survey (“Survey”). Seller shall provide any existing survey for informational purposes only.
6. CONDITIONS PRECEDENT AND SUBSEQUENT
6.1 Buyer’s Conditions Precedent. Buyer’s obligation to close is conditioned upon:
a. Accuracy of Seller’s representations and warranties as of Closing;
b. Performance of Seller’s covenants;
c. Issuance of an owner’s title policy consistent with the Commitment, subject only to Permitted Exceptions and with endorsements reasonably required by Buyer;
d. Delivery of tenant estoppel certificates covering not less than [__]% of occupied rentable area, in substantially the form of Exhibit F;
e. Satisfactory completion of Buyer’s environmental, zoning, and physical inspections; and
f. Receipt of all governmental approvals required for Buyer’s intended use.
6.2 Seller’s Conditions Precedent. Seller’s obligation to close is conditioned upon:
a. Accuracy of Buyer’s representations and warranties;
b. Timely payment of the Purchase Price; and
c. Buyer’s performance of its covenants.
6.3 Automatic Termination. Failure of a Party’s condition precedent may be waived only by the benefited Party in writing. Absent such waiver, this Agreement shall terminate and the Deposit shall be disbursed as provided herein.
7. CLOSING
7.1 Closing Mechanics. Closing shall occur through an escrow with the Escrow Agent on the Closing Date. The Parties shall deliver executed documents and funds in escrow no later than 1:00 p.m. Central Time on the Business Day immediately preceding the Closing Date.
7.2 Seller Closing Deliveries.
a. Deed (Exhibit C);
b. Bill of Sale for Personal Property;
c. Assignment and Assumption of Leases and Contracts;
d. FIRPTA non-foreign affidavit (Exhibit D);
e. Seller Closing Certificate (Exhibit E);
f. Keys, codes, and combinations;
g. Such additional documents as Title Company may reasonably require.
7.3 Buyer Closing Deliveries.
a. Purchase Price (less Deposit) by wire transfer;
b. Assignment and Assumption of Leases and Contracts;
c. Environmental Indemnity Agreement (Exhibit G);
d. Buyer Closing Certificate;
e. Any financing documents required by Buyer’s lender.
7.4 Possession. Possession shall transfer to Buyer upon recording of the Deed, subject to rights of tenants under the Leases.
8. REPRESENTATIONS AND WARRANTIES
8.1 Seller’s Representations and Warranties. Seller represents and warrants to Buyer as of the Effective Date and as of Closing:
a. Authority and Enforceability. Seller is duly organized, in good standing, and has full authority to enter into and perform this Agreement.
b. Title. Seller holds marketable fee simple title, free and clear of all liens other than Permitted Exceptions.
c. No Litigation. Except as disclosed on Schedule 8.1(c), there is no pending or, to Seller’s knowledge, threatened litigation affecting Seller or the Property.
d. Compliance. To Seller’s knowledge, the Property is in material compliance with applicable laws, including zoning and Environmental Laws.
e. Leases and Contracts. All Leases and service contracts are listed on Schedule 8.1(e); Seller is not in default thereunder.
f. Hazardous Materials. Except as disclosed on Schedule 8.1(f), Seller has received no written notice of any Release of Hazardous Materials in violation of Environmental Laws.
8.2 Buyer’s Representations and Warranties. Buyer represents and warrants to Seller:
a. Authority. Buyer is duly organized, in good standing, and has full authority to enter and perform.
b. Funds. Buyer has, or will have at Closing, sufficient funds or financing to pay the Purchase Price.
c. Investment Intent. Buyer is acquiring the Property for its own account and not with a view to distribution.
8.3 Survival and Limitations.
a. Survival Period. Sections 8.1 and 8.2 shall survive Closing for [12] months (the “Survival Period”).
b. Liability Cap. Seller’s aggregate liability for breaches of its representations and warranties shall not exceed $[LIABILITY CAP AMOUNT].
9. COVENANTS
9.1 Seller’s Interim Covenants. Between the Effective Date and Closing, Seller shall:
a. Operate and maintain the Property in substantially the same manner as prior to the Effective Date;
b. Not enter into, modify, or terminate any Leases, service contracts, or encumbrances without Buyer’s consent (not to be unreasonably withheld);
c. Promptly notify Buyer of any material adverse change or governmental notice.
9.2 Buyer’s Covenants.
a. Confidentiality. Buyer shall keep all non-public Property information confidential, subject to customary exceptions.
b. Restoration. Buyer shall repair any physical damage caused by its inspections.
10. ENVIRONMENTAL MATTERS
10.1 Inspections. Buyer may conduct Phase I and, if recommended, Phase II environmental assessments.
10.2 Environmental Indemnity. At Closing, Buyer shall deliver the Environmental Indemnity Agreement attached as Exhibit G, pursuant to which Buyer shall indemnify, defend, and hold Seller harmless from and against losses arising from (i) the presence, release, or migration of Hazardous Materials first occurring after Closing, or (ii) Buyer’s breach of Environmental Laws.
10.3 Seller Environmental Representation. Seller represents that, to Seller’s knowledge, no underground storage tanks are located on the Property except as disclosed on Schedule 10.3.
[// GUIDANCE: Missouri has no separate transfer-act regime, but confirm compliance with MoDNR voluntary cleanup or Brownfields programs if relevant.]
11. ZONING AND LAND-USE COMPLIANCE
11.1 Zoning Status. Seller represents that the Property is currently zoned [ZONING CLASSIFICATION] and that such zoning permits the use contemplated by Buyer, subject to ordinary permitting.
11.2 Buyer’s Contingency. Buyer may, at its expense, apply for zoning confirmations or variances. Seller shall reasonably cooperate, provided Seller shall bear no cost.
12. INDEMNIFICATION; RISK ALLOCATION
12.1 Seller’s Indemnification. Seller shall indemnify, defend, and hold Buyer harmless from any claim arising from: (i) Seller’s breach of representations, warranties, or covenants; or (ii) pre-Closing personal injury or property damage occurrences on the Property.
12.2 Buyer’s Indemnification. In addition to the Environmental Indemnity, Buyer shall indemnify, defend, and hold Seller harmless from any claim arising from: (i) Buyer’s breach of this Agreement; (ii) Buyer’s on-site inspections pre-Closing; or (iii) post-Closing ownership and operation of the Property, except to the extent arising from Seller’s breach.
12.3 Procedure. The indemnified Party shall promptly notify the indemnifying Party and permit defense and settlement under commercially reasonable conditions.
12.4 Insurance. Until Closing, Seller shall maintain existing insurance coverage; Buyer shall maintain commercial general liability insurance of not less than $[AMOUNT] per occurrence covering inspection activities.
13. DEFAULTS AND REMEDIES
13.1 Buyer Default.
a. Failure to Close. If Buyer defaults and fails to cure within five (5) Business Days after written notice, Seller’s sole remedy shall be to terminate this Agreement and retain the Deposit as liquidated damages, the Parties acknowledging the difficulty of calculating actual damages.
b. Specific Performance. Seller waives any right to seek specific performance against Buyer.
13.2 Seller Default.
a. Failure to Close. If Seller defaults and fails to cure within five (5) Business Days after notice, Buyer may (i) terminate and receive an immediate refund of the Deposit plus reimbursement of documented out-of-pocket expenses not exceeding $[CAP], or (ii) elect specific performance.
b. Additional Damages. If specific performance is not available due to Seller’s conveyance of the Property to a third party or willful act, Buyer may pursue actual damages, subject to the liability cap in Section 8.3(b).
13.3 Attorneys’ Fees. The prevailing Party in any action or proceeding shall be entitled to recover reasonable attorneys’ fees, court costs, and expenses.
14. DISPUTE RESOLUTION
14.1 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Missouri. Any litigation shall be filed exclusively in the [SPECIFY COUNTY] Circuit Court, State of Missouri.
14.2 Optional Arbitration. [IF ELECTED] Any dispute shall be submitted to binding arbitration administered by [AAA/JAMS] in accordance with its commercial rules. Judgment on the award may be entered in any court of competent jurisdiction.
14.3 Jury Trial Waiver. [OPTIONAL] EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14.4 Equitable Relief. Notwithstanding Section 14.2, either Party may seek interim or permanent injunctive relief or specific performance in a court of competent jurisdiction to prevent a breach of this Agreement or to enforce its terms.
15. MISCELLANEOUS / GENERAL PROVISIONS
15.1 Amendments and Waivers. No amendment or waiver shall be effective unless in writing and signed by the Party against whom enforcement is sought.
15.2 Assignment. Buyer may not assign this Agreement without Seller’s prior written consent, except to an Affiliate or a single-purpose entity formed to acquire the Property, provided Buyer remains liable.
15.3 Successors and Assigns. Subject to Section 15.2, this Agreement shall bind and benefit the Parties and their respective successors and permitted assigns.
15.4 Severability. If any provision is held unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be modified to the minimum extent necessary to make it enforceable.
15.5 Entire Agreement. This Agreement, together with the Exhibits and Schedules, constitutes the entire agreement and supersedes all prior agreements and understandings.
15.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which is deemed an original, and all of which constitute one instrument. Signatures delivered electronically or by digital signature service shall be deemed originals.
15.7 Further Assurances. Each Party shall execute and deliver such further documents and take such further actions as may be reasonably required to carry out the intent of this Agreement.
16. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
SELLER:
[SELLER LEGAL NAME]
By: ____
Name: ____
Title: _____
Date: _________
BUYER:
[BUYER LEGAL NAME]
By: ____
Name: ____
Title: _____
Date: _________
(NOTARY BLOCKS, IF REQUIRED BY MISSOURI LAW)
EXHIBIT A – LEGAL DESCRIPTION OF THE REAL PROPERTY
[Attach metes and bounds or lot-block description.]
EXHIBIT B – PERMITTED EXCEPTIONS
[Populate from final Commitment.]
EXHIBIT C – FORM OF DEED
[Missouri general warranty deed, including statutory recording requirements.]
EXHIBIT D – FIRPTA CERTIFICATE
[Standard non-foreign affidavit under I.R.C. § 1445.]
EXHIBIT E – SELLER CLOSING CERTIFICATE
[Certification that representations remain true as of Closing.]
EXHIBIT F – TENANT ESTOPPEL CERTIFICATE
[Customary commercial form.]
EXHIBIT G – ENVIRONMENTAL INDEMNITY AGREEMENT
[Separate agreement setting forth detailed environmental indemnity obligations.]