PURCHASE AND SALE AGREEMENT

(Commercial Real Estate – State of South Dakota)

[// GUIDANCE: This template is drafted for the purchase and sale of fee-simple commercial real property located in South Dakota. Bracketed items MUST be customized. Defined terms appear in Article II.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
   3.1 Purchase and Sale
   3.2 Purchase Price; Deposit; Allocation of Consideration
   3.3 Due Diligence Period
   3.4 Conditions Precedent and Subsequent
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

ARTICLE I

DOCUMENT HEADER

1.1 Parties
This PURCHASE AND SALE AGREEMENT (the “Agreement”) is entered into as of [Effective Date] (the “Effective Date”) by and between
(a) [Seller Entity Name], a [State of Formation & Entity Type] (“Seller”), and
(b) [Buyer Entity Name], a [State of Formation & Entity Type] (“Buyer”).

1.2 Real Property Description
Seller hereby agrees to sell and Buyer agrees to purchase that certain parcel or parcels of land located in the State of South Dakota, legally described on Exhibit A (the “Land”), together with: (i) all buildings, fixtures, and other improvements thereon (collectively, the “Improvements”); (ii) all easements, rights-of-way, hereditaments, privileges, and appurtenances thereunto belonging (the “Appurtenances”); and (iii) all tangible and intangible personal property identified on Exhibit B (the “Personal Property”) (the Land, Improvements, Appurtenances, and Personal Property are collectively referred to herein as the “Property”).

1.3 Consideration
The mutual promises herein constitute good and sufficient consideration, the receipt and adequacy of which are acknowledged.

1.4 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of South Dakota, without regard to its conflict-of-laws rules.

ARTICLE II

DEFINITIONS

“Affiliate,” “Business Day,” “Closing,” “Closing Date,” “Closing Documents,” “Closing Statement,” “Deposit,” “Due Diligence Materials,” “Environmental Laws,” “Escrow Agent,” “Hazardous Materials,” “Lender,” “Purchase Price,” “Title Company,” and any other capitalized term used but not defined in context are defined alphabetically in Exhibit C.

[// GUIDANCE: Definitions are centralized to ensure uniform interpretation. Add or delete terms as necessary.]

ARTICLE III

OPERATIVE PROVISIONS

3.1 Purchase and Sale
Subject to the terms and conditions of this Agreement, Seller agrees to sell, assign, convey, and transfer to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right, title, and interest in and to the Property.

3.2 Purchase Price; Deposit; Allocation
(a) Purchase Price. The total purchase price for the Property shall be $[___] (the “Purchase Price”).
(b) Deposit. Within three (3) Business Days after the Effective Date, Buyer shall deposit $[___] (the “Deposit”) with [Escrow Agent Name] (the “Escrow Agent”), to be held in an interest-bearing, FDIC-insured account. The Deposit, together with accrued interest, shall be applied to the Purchase Price at Closing or disbursed as provided herein.
(c) Allocation. The Purchase Price shall be allocated among Land, Improvements, and Personal Property as mutually agreed in writing prior to Closing for tax purposes pursuant to §1060 of the Internal Revenue Code.

3.3 Due Diligence Period
(a) Length; Access. Buyer shall have [__] days after the Effective Date (the “Due Diligence Period”) to conduct any inspections, tests, studies, zoning reviews, and environmental assessments, including a Phase I Environmental Site Assessment (“Phase I ESA”) in conformance with ASTM E1527-21. Seller shall provide reasonable access to the Property during normal business hours.
(b) Due Diligence Termination Right. Buyer may terminate this Agreement for any reason prior to the expiration of the Due Diligence Period by written notice to Seller, whereupon the Deposit shall be refunded to Buyer, less independent consideration of $100 retained by Seller.
(c) Title Commitment; Survey. Within five (5) Business Days after the Effective Date, Seller shall cause [Title Company] to deliver to Buyer: (i) a current commitment for an ALTA Extended Owner’s Policy of Title Insurance (the “Title Commitment”); and (ii) legible copies of all recorded title documents referenced therein. Buyer shall obtain an ALTA/NSPS Land Title Survey (“Survey”) at Buyer’s expense.

3.4 Conditions Precedent/Subsequent
(a) Buyer’s Conditions Precedent. Buyer’s obligation to close is contingent upon:
(i) Title and Survey matters being acceptable to Buyer or timely cured by Seller;
(ii) Receipt of a zoning compliance letter from [Applicable Municipality] indicating the current use is a legal conforming use under applicable zoning ordinances;
(iii) Environmental Condition. Delivery of a Phase I ESA (and Phase II if recommended) evidencing no Recognized Environmental Conditions (RECs) or Seller’s agreement to remediate same to Buyer’s reasonable satisfaction; and
(iv) Accuracy in all material respects of Seller’s representations and warranties as of Closing.
(b) Seller’s Conditions Precedent. Seller’s obligation to close is contingent upon:
(i) Buyer’s payment of Purchase Price at Closing; and
(ii) Buyer’s delivery of all executed Closing Documents.
(c) Failure of Conditions. If any condition precedent is not satisfied or waived in writing by the applicable date, the party for whose benefit the condition exists may terminate this Agreement upon written notice, and the Deposit shall be disbursed in accordance with Section 7.2.

ARTICLE 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 duly organized, validly existing, and in good standing in its jurisdiction of formation and possesses all requisite authority to enter into and perform this Agreement;
(b) Title. Seller owns good and marketable fee simple title to the Land, subject only to Permitted Exceptions;
(c) No Violation. Execution and performance of this Agreement will not violate any agreement to which Seller is bound;
(d) Compliance. To Seller’s Knowledge, the Property is in material compliance with applicable building codes, zoning ordinances, and Environmental Laws;
(e) Litigation. There is no pending or threatened litigation or administrative proceeding materially affecting the Property;
(f) Environmental Matters. Seller has received no written notice of violation of Environmental Laws relating to the Property;
(g) Foreign Person. Seller is not a “foreign person” under 26 U.S.C. §1445.

4.2 Buyer’s Representations and Warranties. Buyer represents and warrants to Seller that:
(a) Authority. Buyer is duly organized, validly existing, and in good standing in its jurisdiction of formation;
(b) No Reliance. Buyer is an experienced commercial real estate purchaser and has not relied on any representation not expressly set forth herein;
(c) Funds. Buyer has, and at Closing will have, adequate funds to consummate the transactions contemplated hereby.

4.3 Survival. Seller’s representations and warranties shall survive Closing for a period of [12–24] months (the “Survival Period”). Buyer’s sole remedy for breach discovered after Closing shall be as set forth in Article VI and Section 7.1, subject to any Liability Cap elected in Section 7.3.

ARTICLE V

COVENANTS & RESTRICTIONS

5.1 Interim Operations. From the Effective Date until Closing, Seller shall:
(a) Operate the Property in a commercially reasonable manner;
(b) Maintain existing insurance coverage;
(c) Not enter into, amend, or terminate any leases, service contracts, or other agreements affecting the Property without Buyer’s prior written consent (not to be unreasonably withheld, conditioned, or delayed).

5.2 Cooperation. Each party shall use commercially reasonable efforts to comply with and obtain all permits, governmental approvals, and third-party consents required to consummate the transactions contemplated herein.

5.3 Zoning & Compliance Covenant. Seller shall, at Buyer’s request, cooperate (at no out-of-pocket cost to Seller) in Buyer’s application for any zoning confirmations, variances, or permits necessary for Buyer’s intended use of the Property.

5.4 Post-Closing Covenant. For the Survival Period, Seller shall promptly forward to Buyer any written notice received by Seller that relates to Environmental Laws, zoning, or title matters affecting the Property.

ARTICLE VI

DEFAULT & REMEDIES

6.1 Buyer Default. If Buyer defaults and fails to cure within five (5) Business Days after receipt of Seller’s written notice, Seller’s sole and exclusive remedy shall be to terminate this Agreement and receive the Deposit as agreed liquidated damages, whereupon the parties shall have no further liability (except for provisions that expressly survive).
[// GUIDANCE: South Dakota generally enforces liquidated-damage clauses that are a reasonable forecast of damages and not a penalty. Adjust amount and insert additional remedies if desired.]

6.2 Seller Default. If Seller defaults and fails to cure within five (5) Business Days after receipt of Buyer’s written notice, Buyer may, at its election:
(a) terminate this Agreement and receive a refund of the Deposit plus reimbursement of documented out-of-pocket due diligence costs not to exceed $[Cap];
(b) enforce specific performance of Seller’s obligations (injunctive relief preserved in Article VIII); or
(c) pursue all other remedies available at law or in equity, subject to the Liability Cap in Section 7.3.

6.3 Attorneys’ Fees. The prevailing party in any dispute arising out of or relating to this Agreement shall be entitled to reasonable attorneys’ fees and costs.

ARTICLE VII

RISK ALLOCATION

7.1 Environmental Indemnity.
(a) Seller Indemnity. Seller shall indemnify, defend, and hold Buyer harmless from and against any and all claims, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to (i) the presence or Release of Hazardous Materials on, under, or migrating from the Property prior to Closing; or (ii) any violation of Environmental Laws attributable to conditions existing prior to Closing. This indemnity shall survive Closing for the statute of limitations period applicable to environmental claims.
(b) Buyer Indemnity. Buyer shall indemnify, defend, and hold Seller harmless from and against any violations of Environmental Laws or Releases of Hazardous Materials first occurring on or after the Closing Date and not caused by Seller or its agents.

[// GUIDANCE: “Release” is defined in Exhibit C with reference to 42 U.S.C. §9601(22). CERCLA citation meets policy criteria.]

7.2 Disbursement of Deposit. Escrow Agent shall disburse the Deposit pursuant to joint written instructions or as finally adjudicated by a court of competent jurisdiction. Escrow Agent’s duties are ministerial and limited to those expressly set forth herein.

7.3 Liability Cap. The aggregate liability of either party for breaches of representations, warranties, covenants, or indemnities (exclusive of fraud, intentional misrepresentation, or willful misconduct) shall not exceed $[Negotiated Cap OR “__ % of Purchase Price”] (the “Liability Cap”).

7.4 Insurance. Until Closing, Seller shall maintain existing all-risk property insurance and commercial general liability insurance. Buyer shall obtain and maintain adequate insurance (including environmental impairment liability coverage if required by Lender) effective as of Closing.

7.5 Force Majeure. Neither party shall be liable for failure to perform any obligation (other than monetary obligations) to the extent such failure is caused by events beyond its reasonable control, including acts of God, war, terrorism, epidemic, or governmental orders (“Force Majeure”). The affected party shall notify the other within five (5) Business Days of the event and resume performance promptly thereafter.

ARTICLE VIII

DISPUTE RESOLUTION

8.1 Governing Law. This Agreement shall be governed by the laws of the State of South Dakota.

8.2 Forum Selection. The parties irrevocably submit to the exclusive jurisdiction of the state courts located in [County, SD].

8.3 Optional Arbitration.
[CHOOSE ONE:
☐ The parties elect to resolve any dispute arising under this Agreement first by mediation in accordance with the Commercial Mediation Rules of the American Arbitration Association (“AAA”), followed, if mediation is unsuccessful, by binding arbitration under the Commercial Arbitration Rules of the AAA before a single arbitrator in [City, SD]. Judgment upon the award may be entered in any court of competent jurisdiction.
☐ Arbitration is not elected.]

8.4 Jury Trial Waiver.
[CHOOSE ONE:
☐ Each party hereby waives trial by jury of any claim arising out of this Agreement.
☐ Jury waiver not elected.]

8.5 Specific Performance. The parties acknowledge that the Property is unique and that monetary damages may be inadequate; therefore, each party shall have the right to seek specific performance, injunctive relief, or other equitable remedies without the necessity of posting bond, in addition to any other remedies available.

ARTICLE IX

GENERAL PROVISIONS

9.1 Amendments and Waivers. No amendment or waiver shall be effective unless in writing signed by the party to be charged.

9.2 Assignment. Buyer may not assign its rights without Seller’s prior written consent, except to an Affiliate or to a special-purpose entity formed to acquire the Property and controlled by Buyer, provided Buyer remains liable.

9.3 Entire Agreement. This Agreement (including all Exhibits and schedules) constitutes the entire agreement between the parties and supersedes all prior agreements.

9.4 Severability. If any provision is held invalid, the remaining provisions shall remain in full force, and the Agreement shall be reformed to the minimum extent necessary to give effect to the parties’ intent.

9.5 Successors and Assigns. This Agreement shall bind and benefit the parties and their respective successors and permitted assigns.

9.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together constitute one instrument. Electronic signatures and delivery by PDF or other electronic means shall be deemed originals for all purposes.

9.7 Notices. All notices shall be in writing and deemed given upon (i) personal delivery, (ii) confirmed email transmission, (iii) delivery by nationally recognized overnight courier, or (iv) deposit in the United States Mail, certified, return-receipt requested, postage prepaid, addressed to the parties at the addresses set forth below (or as updated by notice).

9.8 1031 Exchange Cooperation. Either party may consummate the transaction as part of a like-kind exchange under §1031 of the Internal Revenue Code; the other party shall cooperate at no cost or liability.

ARTICLE X

EXECUTION BLOCK

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

SELLER:
[Seller Entity Name], a [Entity Type]
By: _____
Name: ____
Title: _____
Date: ____

BUYER:
[Buyer Entity Name], a [Entity Type]
By: _____
Name: ____
Title: _____
Date: ____

ACKNOWLEDGMENTS (Notary)

State of South Dakota )
: ss.
County of _____ )

On this _ day of __, 20__, before me, the undersigned, a Notary Public within and for said State, personally appeared [Name/Title], known to me or satisfactorily proven to be the person who executed the foregoing instrument on behalf of [Seller/Buyer] and acknowledged that such execution was the free act and deed of said entity.

Notary Public
My Commission Expires: ______

EXHIBITS

Exhibit A Legal Description of Land
Exhibit B Personal Property
Exhibit C Definitions
Exhibit D Form of Deed (South Dakota Warranty Deed)
Exhibit E Form of Bill of Sale
Exhibit F Form of Assignment of Contracts and Warranties
Exhibit G Closing Statement (Sample)

[// GUIDANCE: Attach state-specific deed form compliant with SDCL ch. 43-25; check recording requirements (SDCL §7-9-1 et seq.). Ensure transfer fee, certificate of real estate value, and groundwater hazard statement are prepared if applicable.]

END OF DOCUMENT