COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
(O H I O)
[// GUIDANCE: This template is provided for general informational purposes only and must be reviewed, customized, and approved by qualified legal counsel prior to use. No attorney-client relationship is created by its provision or use.]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
I. DOCUMENT HEADER
COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
(this “Agreement”)
This Agreement is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
- [SELLER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE], whose address is [SELLER ADDRESS] (“Seller”); and
- [BUYER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE], whose address is [BUYER ADDRESS] (“Buyer”).
A. Recitals
A.1 Seller is the fee simple owner of that certain real property commonly known as [PROPERTY ADDRESS], County of [COUNTY], State of Ohio, consisting of approximately [ACRES/SQUARE FEET], together with all buildings, improvements, fixtures, rights, easements, and appurtenances thereto (collectively, the “Property”).
A.2 Seller desires to sell and Buyer desires to purchase the Property on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
II. DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall have the meanings set forth below. Any term not defined in this Section II but defined elsewhere shall have the meaning assigned where first used.
“Affiliate” means, with respect to any Person, any other Person controlling, controlled by, or under common control with such Person.
“Agreement” has the meaning set forth in the introductory paragraph.
“Arbitration” has the meaning set forth in Section VIII.2.
“Business Day” means any day other than Saturday, Sunday, or a day on which national banks in Ohio are authorized or required to close.
“Casualty” has the meaning set forth in Section III.9.
“Closing” means the consummation of the conveyance of the Property from Seller to Buyer pursuant to Section III.7.
“Closing Date” means [CLOSING DATE] or such other date as the parties may mutually agree in writing.
“Deposit” has the meaning set forth in Section III.3.
“Environmental Laws” means all applicable federal, state, and local statutes, regulations, and ordinances relating to pollution or protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
“Escrow Agent” means [ESCROW COMPANY NAME], or any successor escrow holder mutually acceptable to Buyer and Seller.
“Governmental Authority” means any federal, state, county, municipal, or other governmental or quasi-governmental authority, department, commission, board, bureau, agency, or instrumentality having jurisdiction over the Property.
“Permitted Exceptions” has the meaning set forth in Section III.5.
“Person” means any natural person, corporation, partnership, limited liability company, unincorporated association, trust, or other legal entity.
“Purchase Price” has the meaning set forth in Section III.2.
“Title Company” means [TITLE COMPANY NAME].
“Title Commitment” has the meaning set forth in Section III.5.
“Zoning Laws” means all applicable zoning ordinances, land-use regulations, and development codes of the pertinent Governmental Authorities.
[// GUIDANCE: Ensure every defined term is used consistently and capitalize throughout.]
III. OPERATIVE PROVISIONS
3.1 Agreement to Purchase and Sell
Subject to the terms and conditions herein, Seller agrees to sell, and Buyer agrees to purchase, the Property for the Purchase Price.
3.2 Purchase Price
The total purchase price for the Property (the “Purchase Price”) is $[AMOUNT], payable as follows:
a. Deposit: By wire transfer to Escrow Agent within three (3) Business Days after the Effective Date;
b. Balance: By wire transfer to Escrow Agent on the Closing Date, adjusted by prorations and credits as provided herein.
3.3 Deposit
a. Amount. $[DEPOSIT AMOUNT] (the “Deposit”).
b. Escrow. Escrow Agent shall hold the Deposit in an interest-bearing account, the interest to follow the principal.
c. Application/Refund. The Deposit shall be (i) credited to the Purchase Price at Closing, (ii) refunded to Buyer if Buyer terminates this Agreement pursuant to a right expressly granted herein, or (iii) delivered to Seller as liquidated damages as set forth in Section VI.3.
3.4 Due Diligence Period
a. Duration. Buyer shall have until 5:00 p.m. (local time at the Property) on [DILIGENCE EXPIRATION DATE] (the “Due Diligence Period”) to conduct its investigations.
b. Access. Seller shall provide Buyer and its consultants reasonable access to the Property upon no less than 24 hours’ prior notice. Buyer shall maintain commercial general liability insurance in coverage amounts not less than $[AMOUNT] per occurrence naming Seller as an additional insured.
c. Indemnity. Buyer shall indemnify, defend, and hold Seller harmless from any claims arising from Buyer’s entry, except to the extent caused by Seller’s negligence or willful misconduct.
d. Termination Right. Buyer may terminate this Agreement for any reason by written notice to Seller on or before the expiration of the Due Diligence Period, whereupon the Deposit shall be refunded to Buyer, and the parties shall have no further obligations except those that expressly survive termination.
3.5 Title and Survey
a. Title Commitment. Within five (5) Business Days after the Effective Date, Seller shall cause Title Company to deliver to Buyer a current ALTA commitment for an owner’s policy of title insurance (the “Title Commitment”), together with legible copies of all exceptions.
b. Survey. Buyer may, at its expense, obtain a current ALTA/NSPS land title survey of the Property (the “Survey”).
c. Title Review. Buyer shall have until [TITLE OBJECTION DEADLINE] to provide Seller written notice identifying any matters (other than Permitted Exceptions) that Buyer disapproves (“Title Objections”).
d. Seller Cure. Seller shall have five (5) Business Days after receipt of the Title Objections to elect to cure the same on or before Closing. Seller’s failure to so elect shall be deemed an election not to cure.
e. Buyer’s Remedies. If Seller fails or elects not to cure a Title Objection, Buyer may (i) waive such objection and proceed to Closing, or (ii) terminate this Agreement, whereupon the Deposit shall be refunded to Buyer.
f. Permitted Exceptions. “Permitted Exceptions” shall include: (i) real property taxes and assessments not yet due and payable; (ii) matters created by or with the written consent of Buyer; (iii) zoning and other land-use regulations; and (iv) other exceptions approved or waived by Buyer in writing.
3.6 Zoning Compliance
Seller shall deliver to Buyer at or before Closing written evidence reasonably satisfactory to Buyer that the current use of the Property is permissible under applicable Zoning Laws or constitutes a valid legal nonconforming use.
[// GUIDANCE: When a zoning letter is not available, consider requiring an estoppel from the municipality or a zoning endorsement to the title policy.]
3.7 Closing
a. Date & Place. Closing shall occur on the Closing Date through an escrow with Escrow Agent.
b. Seller Deliveries. At Closing, Seller shall deliver:
i. General Warranty Deed in recordable form conveying marketable title, free of all liens except Permitted Exceptions, in compliance with Ohio Rev. Code § 5301.25;
ii. Bill of Sale for any Personal Property;
iii. Assignment of leases and contracts;
iv. FIRPTA affidavit;
v. Closing Statement; and
vi. Any other documents reasonably required by Title Company or Governmental Authorities.
c. Buyer Deliveries. Buyer shall deliver:
i. Balance of the Purchase Price;
ii. Closing Statement; and
iii. Any other documents reasonably required by Title Company.
d. Prorations. Real estate taxes, rents, utilities, and operating expenses shall be prorated as of 11:59 p.m. on the day preceding the Closing Date.
e. Recordation. Deed and other recordable instruments shall be recorded immediately following Closing at Buyer’s expense.
3.8 Conditions Precedent
a. Buyer’s Conditions:
i. Accuracy of Seller’s representations and warranties;
ii. Seller’s performance of its covenants;
iii. Title Company’s commitment to issue Buyer’s owner’s policy subject only to Permitted Exceptions;
iv. Completion of Buyer’s due diligence to Buyer’s satisfaction; and
v. No material adverse change concerning the Property.
b. Seller’s Conditions:
i. Accuracy of Buyer’s representations and warranties;
ii. Buyer’s performance of its covenants; and
iii. Receipt of Purchase Price.
If any condition precedent is not satisfied or waived on or before Closing, the benefited party may terminate this Agreement by written notice, whereupon the Deposit shall be handled as provided herein, and the parties shall have no further obligations except those that expressly survive termination.
3.9 Casualty and Condemnation
If, prior to Closing, (a) the Property suffers material damage or destruction, or (b) any eminent domain proceedings materially affecting the Property are commenced, Buyer may elect, by written notice within ten (10) Business Days after Seller’s notice of such event, to (i) terminate this Agreement and receive a refund of the Deposit, or (ii) proceed to Closing, in which event Buyer shall be entitled to any insurance or condemnation proceeds.
IV. REPRESENTATIONS & WARRANTIES
4.1 Seller’s Representations and Warranties
Seller represents and warrants to Buyer as of the Effective Date and as of Closing that:
a. Authority. Seller is dulyorganized, validly existing, and in good standing under the laws of its state of formation and has full power and authority to enter into and perform this Agreement.
b. Title. Seller is the record fee simple owner of the Property, has good and marketable title, and will convey same to Buyer subject only to Permitted Exceptions.
c. No Violation. Execution, delivery, and performance of this Agreement will not result in any breach of, or constitute a default under, any agreement to which Seller is a party.
d. Litigation. To Seller’s actual knowledge, no litigation, arbitration, or administrative proceeding is pending or threatened that would materially and adversely affect Seller’s ability to perform its obligations or the value or use of the Property.
e. Environmental. Seller has not received written notice from any Governmental Authority alleging a violation of Environmental Laws relating to the Property that remains outstanding. To Seller’s actual knowledge, no Hazardous Materials are present at, on, or under the Property in quantities or conditions that violate Environmental Laws.
f. Compliance. To Seller’s actual knowledge, the current use of the Property complies in all material respects with applicable Zoning Laws and building codes.
g. Leases and Contracts. Any leases or service contracts affecting the Property are listed on Schedule 4.1(g); true and complete copies have been or will be delivered to Buyer.
h. Foreign Person. Seller is not a “foreign person” within the meaning of § 1445 of the Internal Revenue Code.
[// GUIDANCE: “Actual knowledge” should be defined if extended beyond named individuals; consider adding knowledge qualifiers and survival periods.]
4.2 Buyer’s Representations and Warranties
Buyer represents and warrants to Seller as of the Effective Date and as of Closing that:
a. Authority. Buyer is duly organized, validly existing, and in good standing under the laws of its state of formation and has full power and authority to enter into and perform this Agreement.
b. No Violation. Execution, delivery, and performance of this Agreement will not result in any breach of, or constitute a default under, any agreement to which Buyer is a party.
c. Source of Funds. Buyer has, or will have as of Closing, sufficient funds to close the transaction in accordance with this Agreement.
4.3 Survival and Remedies
a. Survival. The representations and warranties set forth in this Section IV shall survive Closing for a period of [SURVIVAL PERIOD] months.
b. Materiality and Cap. Any claim for breach is subject to the limitation of liability set forth in Section VII.2.
V. COVENANTS & RESTRICTIONS
5.1 Seller’s Covenants
a. Operation Prior to Closing. Seller shall operate and maintain the Property in substantially the same manner as prior to the Effective Date and in compliance with all applicable laws.
b. New Encumbrances. Seller shall not encumber, convey, or grant any easement or other interest in the Property without Buyer’s prior written consent.
c. Leases and Contracts. Seller shall not enter into, modify, or terminate any lease or contract affecting the Property without Buyer’s prior written consent.
d. Notice Obligations. Seller shall promptly notify Buyer in writing of any event or condition that would make any representation or warranty materially untrue.
5.2 Buyer’s Covenants
a. Confidentiality. Buyer shall keep confidential all non-public information obtained in connection with its due diligence, except as required by law.
b. Restoration. If Buyer or its agents disturb the Property during inspections, Buyer shall restore the Property to substantially the same condition existing immediately prior to entry.
VI. DEFAULT & REMEDIES
6.1 Events of Default
a. Seller Default. Failure of Seller to perform any material covenant, representation, or obligation under this Agreement.
b. Buyer Default. Failure of Buyer to perform any material covenant, representation, or obligation under this Agreement, including failure to deposit the Purchase Price at Closing.
6.2 Notice and Cure
The non-defaulting party shall deliver written notice describing the default. The defaulting party shall have five (5) Business Days to cure a monetary default and ten (10) Business Days to cure a non-monetary default, unless an emergency or Closing deadline requires shorter notice.
6.3 Remedies
a. Buyer’s Remedies Upon Seller Default. Buyer may:
i. Terminate this Agreement and receive a prompt refund of the Deposit plus Buyer’s out-of-pocket third-party due diligence costs not to exceed $[CAP];
ii. Seek specific performance compelling Seller to convey the Property; or
iii. Pursue any other remedy available at law or in equity, except consequential damages (waived by Buyer).
b. Seller’s Remedies Upon Buyer Default. Seller’s sole and exclusive remedy shall be to receive the Deposit as liquidated damages, the parties agreeing that actual damages would be difficult to ascertain and the Deposit constitutes a reasonable pre-estimate thereof.
[// GUIDANCE: If the parties wish to allow Seller specific performance, delete the exclusivity statement above.]
c. Attorneys’ Fees. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
VII. RISK ALLOCATION
7.1 Environmental Indemnity
a. Buyer Indemnity. Effective as of Closing, Buyer shall indemnify, defend, and hold Seller and its Affiliates harmless from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from (i) the presence, release, or threatened release of Hazardous Materials at, on, or under the Property after Closing, and (ii) any violation of Environmental Laws attributable to Buyer’s ownership, use, or operation of the Property after Closing.
b. Seller Indemnity. Seller shall indemnify, defend, and hold Buyer and its Affiliates harmless from and against any and all claims, losses, liabilities, damages, costs, and expenses arising out of or resulting from (i) any breach of Seller’s representations and warranties set forth in Section IV, and (ii) the presence, release, or threatened release of Hazardous Materials at, on, or under the Property prior to Closing.
7.2 Limitation of Liability
Except for Seller’s fraud or intentional misconduct and Buyer’s post-Closing environmental obligations, each party’s aggregate liability for breaches of this Agreement shall not exceed $[LIABILITY CAP] (the “Liability Cap”). No party shall be liable for punitive, speculative, or consequential damages.
7.3 Insurance
Buyer shall, at Closing and thereafter for so long as Buyer or its Affiliates own the Property, maintain commercial general liability insurance with limits not less than $[AMOUNT] per occurrence and will name Seller as an additional insured for a period of [SURVIVAL PERIOD] months following Closing.
7.4 Force Majeure
Neither party shall be liable for failure to perform its obligations (other than payment obligations) when such failure is caused by acts of God, strikes, pandemics, war, governmental actions, or other events beyond the reasonable control of the affected party; provided, however, that the affected party shall give prompt notice and shall diligently attempt to remove the cause of non-performance.
VIII. DISPUTE RESOLUTION
8.1 Governing Law; Forum Selection
This Agreement and any dispute arising hereunder shall be governed by the laws of the State of Ohio, without regard to its conflict-of-laws principles. Subject to Section 8.2, the parties consent to exclusive jurisdiction and venue in the state courts located in [COUNTY], Ohio.
8.2 Optional Arbitration
[OPTIONAL – INCLUDE IF CHECKED BY PARTIES]
Any dispute not resolved by negotiation within thirty (30) days shall be submitted to binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The arbitration shall take place in [CITY], Ohio before a panel of three (3) neutral arbitrators, each licensed to practice law for at least ten (10) years. Judgment on the award may be entered in any court of competent jurisdiction.
8.3 Jury Trial Waiver
[OPTIONAL – INCLUDE IF CHECKED BY PARTIES]
EACH PARTY HEREBY VOLUNTARILY, KNOWINGLY, AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT.
8.4 Specific Performance
Notwithstanding anything to the contrary, the parties acknowledge that the Property is unique and that monetary damages may be inadequate. Accordingly, either party shall have the right to seek equitable relief, including specific performance or injunction, to enforce the terms hereof without posting bond.
IX. GENERAL PROVISIONS
9.1 Notices
All notices shall be in writing and deemed given when (a) delivered personally, (b) sent by nationally recognized overnight courier, or (c) sent by email with confirmation of receipt, to the addresses set forth in the introductory paragraph or such other address as a party may designate by notice.
9.2 Entire Agreement; Merger
This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, and negotiations.
9.3 Amendments and Waivers
No amendment, modification, or waiver of any provision shall be effective unless in writing and signed by the party against whom enforcement is sought. Any waiver shall be limited to the specific instance and purpose for which given.
9.4 Assignment
Neither party may assign this Agreement or its rights hereunder without the prior written consent of the other party, except that Buyer may assign to an Affiliate or to a 1031 exchange intermediary upon written notice to Seller, provided that Buyer remains liable hereunder.
9.5 Successors and Assigns
Subject to Section 9.4, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
9.6 Severability
If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be interpreted to achieve the parties’ original intent to the maximum extent permitted by law.
9.7 Counterparts; Electronic Signatures
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. Signatures delivered by electronic means (e.g., PDF, DocuSign) shall be deemed original signatures for all purposes.
9.8 Further Assurances
Each party shall execute and deliver such further documents and do such further acts as may be reasonably required to carry out the intent of this Agreement.
9.9 1031 Exchange
Either party may structure the transaction as a tax-deferred exchange under § 1031 of the Internal Revenue Code, at its sole cost and without delaying Closing or increasing the other party’s obligations.
X. 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: _________
BUYER:
[BUYER LEGAL NAME]
By: ____
Name: ____
Title: _____
Date: _________
NOTARIZATION (Ohio Revised Code Chapter 147)
State of Ohio )
County of ______)
On this ___ day of _, 20_, before me, the undersigned Notary Public, personally appeared ___, who acknowledged that he/she is the ____ of [SELLER/BUYER NAME], and that he/she executed the foregoing instrument on behalf of said entity.
Witness my hand and official seal.
Notary Public
My Commission Expires: _______
[// GUIDANCE: Ohio does not mandate witness signatures for commercial real estate conveyance, but confirm local county recorder practices. Include additional acknowledgments if multiple signatories or if separate Seller/Buyer entities require.]
EXHIBITS & SCHEDULES
[Attach as needed—e.g., Legal Description, Form of Deed, Leases Schedule, Service Contracts, Environmental Reports List, Title Commitment, Survey, etc.]
[// GUIDANCE: Before distribution, confirm (i) all placeholders are completed, (ii) exhibits are fully attached, (iii) cross-references match, and (iv) compliance with any county-specific recording prerequisites (margins, font size, signature block requirements).]