PARTIES: ____________________________________________________,
as "Seller", of __________________________________,
Phone: __________________________________ and
____________________________________ as "Buyer"
of _________________________________, Phone: ____________________,
hereby agree that the Seller shall sell and Buyer
shall buy the
I. DESCRIPTION:
a) Legal description of real estate ("Property")
located in ___________________ County, ___________________:
b) Street address, if any, of the Property being
conveyed is:
c) Personal property including all buildings and
improvements on the property and all right, title
and interest of Seller in and to adjacent streets,
roads, alleys and rights-of-way, and:
II. PURCHASE PRICE $________________
PAYMENT:
a) Cash Deposit(s) to be held in escrow by _________________________________
in the amount of $________________ and promissory
note to be held in same escrow as additional earnest
Buyer's default in the amount of $________________
b) Subject to assumption of Mortgage in favor or
______________________ bearing interest at ___________%
per annum and payable as to principal and interest
__________
c) Purchase money mortgage and note bearing interest
at __________% on terms set forth herein below, in
the principal amount of $________________
d) Other: __________________________________________
$________________
e) Balance to close, (U.S. Cash, certified or cashier's
check) subject to adjustments and prorations $________________
TOTAL $________________
f) All funds held in escrow shall be placed in an
interest bearing account at the direction of Buyer,
with interest accruing to the benefit of Buyer and
either applied toward the purchase price at closing
or returned to Buyer in the event and for any reason
the transaction does not close.
III. FINANCING: If the purchase price or any part
thereof is to be financed by a third party loan, this
Contract for Sale and Purchase ("Contract"),
is conditioned upon the Buyer obtaining a
firm commitment for said loan within _________ days
from the date hereof, at an interest rate not to exceed
______ percent (____%); of ________ years; and in
the principal amount of $__________________. Buyer
agrees to make application for, and to use reasonable
diligence to obtain said loan. Should Buyer fail to
obtain same or to waive Buyer's rights hereunder within
said time, Buyer may cancel Contract.
IV. TITLE EVIDENCE: Within twenty____) days from
the date of Contract, Seller shall, at his expense,
deliver to Buyer or his attorney, in accordance with
Paragraph XI, a title insurance
commitment with fee owner's title policy premium to
be paid by Seller at closing.
V. TIME FOR ACCEPTANCE AND EFFECTIVE DATE: If this
offer is not executed by both of the parties hereto
on or before _____________, the aforesaid deposit(s)
shall be, at the option of the Buyer, returned to
him and this offer shall thereafter be null and void.
The date of Contract ("Effective Date")
shall be the date when the last one of the Seller
and Buyer has signed this offer.
VI. CLOSING DATE: This transaction shall be closed
and the deed and other closing papers delivered on
the ________ day of _______________, 20______, unless
extended by other provisions of Contract, or by written
agreement of the Parties.
VII. RESTRICTIONS, EASEMENTS, LIMITATIONS: The Buyer
shall take title subject only to: Zoning, restrictions,
prohibitions and other requirements imposed by governmental
authority; Restrictions and matters appearing on the
plat or otherwise common to the subdivision; Public
utility easements of record; Taxes for year of closing
and subsequent years, assumed mortgages and purchase
money mortgages, if any; other: _______________________________________
provided, however, that none of the foregoing shall
prevent use of the property for the purpose of ______________________.
VIII. OCCUPANCY: Seller represents that there are
no parties in occupancy other than Seller, but if
Property is intended to be rented or occupied beyond
closing, the fact and terms thereof shall be stated
herein, and the tenant(s) shall be disclosed pursuant
to Paragraph XVII. Seller agrees to deliver occupancy
of Property at time of closing unless otherwise specified
below.
IX. ASSIGNABILITY: Buyer may assign this Contract.
X. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewritten
or handwritten provisions inserted herein or attached
hereto as Addenda shall control all printed provisions
in conflict therewith.
XI. EVIDENCE OF TITLE: Within twenty (20) days from
the date hereof, Seller, at Seller's sole cost and
expense, shall cause a title insurance company mutually
acceptable to the Parties ("Title Company")
to issue and deliver to Buyer an ALTA Form B title
commitment ("Title Commitment") accompanied
by one copy of all documents affecting the Property,
and which constitute exceptions to the Title Commitment.
Buyer shall give Seller written notice on
or before twenty (20) days from the date of receipt
of the Title Commitment, if the condition of title
as set forth in such Title Commitment and survey is
not satisfactory in Buyer's sole
discretion. In the event that the condition of title
is not acceptable, Buyer shall state which exceptions
to the Title Commitment are unacceptable. Seller shall,
at its sole cost and expense promptly undertake and
use its best efforts to eliminate or modify all unacceptable
matters to the reasonable satisfaction of Buyer. In
the event Seller is unable with the exercise of due
diligence to satisfy said objections within thirty
(30) days after said notice, Buyer may, at its option:
(i) extend the time period for Seller to satisfy said
objections, (ii) accept title subject to the objections
raised by Buyer, without an adjustment in the purchase
price, in which event said objections shall be deemed
to be waived for all purposes, or (iii) rescind this
Agreement, whereupon the deposit described herein
shall be returned to Buyer and this Agreement shall
be of no further force and effect.
XII. EXISTING MORTGAGES TO BE ASSUMED: Seller shall
furnish to Buyer within twenty (20) days from execution
hereof a statement from all mortgagee(s) setting forth
principal balance, method of payment, interest rate
and whether the mortgage(s) is in good standing. If
a mortgage requires approval of the Buyer by the mortgagee
in order to avoid default, or for assumption by the
Buyer of said mortgage, and:
a) the mortgagee does not approve the Buyer, the
Buyer may rescind the contract, or
b) the mortgagee requires an increase in the interest
rate or charges a fee for any reason in excess of
$500.00, the Buyer may rescind the Contract unless
Seller elects to pay such
increase or excess. Seller and Buyer each shall pay
50% of any such fee. Buyer shall use reasonable diligence
to obtain approval. The amount of any escrow deposits
held by mortgagee shall be credited to Seller.
XIII. PURCHASE MONEY MORTGAGES: The purchase money
note and mortgage, if any, shall provide for a thirty
(30) day grace period in the event of default if it
is a first mortgage and a 15 day grace period in the
event of default if a second mortgage; shall provide
for right of prepayment in whole or in part without
penalty; shall be assumable and shall not provide
for acceleration or interest adjustment in event of
resale of the Property. Said mortgage shall require
the owner of the encumbered Property to keep all prior
liens and encumbrances in good standing.
XIV. CURRENT SURVEY: Within fifteen (15) days from
the date hereof, Seller, at Seller's sole cost and
expense, shall furnish a current survey of the Property
prepared and certified by a duly registered Land Surveyor.
The survey as to the Property shall:
a) Set forth an accurate legal description; and
b) Locate all existing easements and rights-of-way
(setting forth the book and page number of the recorded
instruments creating the same), alleys, streets, and
c) Show any encroachments; and
d) Show all existing improvements (such as buildings,
power lines, fences, etc.); and
e) Show all dedicated public streets provided access
and whether such access is paved to the property line;
and
f) Show the location of any easements necessary
for the furnishing of off-site improvements; and
g) Be certified to the Seller, the Buyer, the Title
Company and any lender that may be involved in the
transaction.
In the event the survey or the recertification thereof
shows any encroachments of any improvements upon,
from, or onto the Property, or on or between any building
set-back line, a property line, or any easement, except
those acceptable to Buyer, in Buyer's sole discretion,
said encroachment shall be treated in the same manner
as a title defect under the procedure set forth of
notice thereof with
XV. TERMITES: The Buyer, within time allowed for
delivery of evidence of title and examination thereof,
or no later than ten (10) days prior to closing, whichever
date occurs last, may have the improvements inspected
at Buyer's expense by a certified pest control operator
to determine whether there is any visible active termite
infestation or visible existing damage from termite
infestation in the improvements. If Buyer is informed
of either or both of the foregoing, Buyer will have
ten (10) days from date of notice thereof within which
to have all damages, whether visible or not, inspected
and estimated by a licensed building or general contractor.
Seller shall pay valid costs for treatment and repair
of all damage up to 1 1/2% of Purchase Price. Should
such costs exceed that amount, Buyer shall have the
option of cancelling
Contract within five (5) days after receipt of contractor's
repair estimate by giving written notice to Seller,
or Buyer may elect to proceed with the transaction,
in which event Buyer shall receive a credit at closing
of an amount equal to 1 1/2% of said Purchase Price.
"Termites" shall be deemed to include all
wood destroying organisms.
XVI. INGRESS AND EGRESS: Seller warrants that there
is ingress and egress to the Property sufficient for
the intended use as described in Paragraph VII hereof
the title to which is in accordance with Paragraph
XI above.
XVII. LEASES: Seller shall, not less than fifteen
(15) days prior to closing, furnish to Buyer copies
of all written leases and estoppel letters from each
tenant (if any) specifying the nature and duration
of said tenant's occupancy, rental rates and advanced
rent and security deposits paid by tenant. In the
event Seller is unable to obtain such letter from
each tenant, the same information shall be furnished
by Seller to Buyer within said time period in the
form of a Seller's affidavit, and Buyer may thereafter
contact tenants to confirm such information. Seller
shall deliver and assign all original leases to Buyer
at closing.
XVIII. LIENS: Seller shall, both as to the Property
and personalty being sold hereunder, furnish to Buyer
at time of closing an affidavit attesting to the absence,
unless otherwise provided for herein, of any financing
statements, claims of lien or potential lienors known
to Seller and further attesting that there have been
no improvements to the Property for ninety (90) days
immediately preceding date of closing. If the property
has been improved within said time, Seller shall deliver
releases or waivers of all mechanic's liens, executed
by general contractors,
subcontractors, suppliers, and materialmen, in addition
to Seller's lien affidavit setting forth the names
of all such general contractors, subcontractors, suppliers
and materialmen and further
reciting that, in fact, all bills for work to the
Property which could serve as a basis for a mechanic's
lien have been paid or will be paid at closing.
XIX. PLACE OF CLOSING: Closing shall be held in
the county wherein the Property is located, at the
office of the attorney or other closing agent designated
by Buyer; provided, however, that if a portion of
the purchase price is to be derived from an institutional
mortgagee, the requirements of said mortgagee as to
time of day, place and procedures for closing, and
for disbursement of mortgage process, shall control,
anything in this contract to the contrary notwithstanding.
XX. TIME: Time is of the essence of this Contract.
Any reference herein to time periods of less than
six (6) days shall in the computation thereof, exclude
Saturdays, Sundays and legal
holidays, and any time period provided for herein
which shall end on a Saturday, Sunday or legal holiday
shall extend to 5:00 p.m. of the next business day.
XXI. DOCUMENTS FOR CLOSING: Seller shall furnish
deed, closing statement, mechanic's lien affidavit,
assignments of leases, and any corrective instruments
that may be required in connection with perfecting
the title. Buyer shall furnish mortgage, mortgage
note, security agreement, and financing statement.
XXII.EXPENSES: State documentary stamps which are
required to be affixed to the instrument of conveyance,
intangible tax on and recording of purchase money
mortgage to Seller, and cost of recording any corrective
instruments shall be paid by Seller. Documentary stamps
to be affixed to the note or notes secured by the
purchase money mortgage, cost of recording the deed
and financing statements shall be paid by Buyer.
XXIII. PRORATION OF TAXES: Taxes for the year of
the closing shall be prorated to the date of closing.
If the closing shall occur before the tax rate is
fixed for the then current year, the
apportionment of taxes shall be upon the basis of
the tax rate of the preceding year applied to the
latest assessed valuation. Subsequent to the closing,
when the tax rate is fixed for the year
in which the closing occurs, Seller and Buyer agree
to adjust the proration of taxes and, if necessary,
to refund or pay, as the case may be, an amount necessary
to effect such adjustments. This provision shall survive
closing.
XXIV. PERSONAL PROPERTY INSPECTION, REPAIR: Seller
warrants that all major appliances, heating, cooling,
electrical, plumbing systems, and machinery are in
working condition as of six (6) days prior to closing.
Buyer may, at his expense, have inspections made
of said items by licensed persons dealing in the repair
and maintenance thereof, and shall report in writing
to Seller such items as found not in working condition
prior to taking of possession thereof, or six (6)
days prior to closing, whichever is first. Unless
Buyer reports failures within said period, he shall
be deemed to have waived Seller's warranty as to failures
not reported. Valid reported failures shall be corrected
at Seller's cost with funds therefore escrowed at
closing. Seller agrees to provide access for inspection
upon reasonable notice.
XXV. RISK OF LOSS: If the improvements are damaged
by fire or other casualty prior to closing, and the
costs of restoring same does not exceed 3% of the
assessed valuation of the improvements so damaged,
cost of restoration shall be an obligation of the
Seller and closing shall proceed pursuant to the terms
of Contract with costs therefor escrowed at closing.
In the event the cost of repair or restoration exceeds
3% of the assessed valuation of the improvements so
damaged, Buyer shall have the option of either taking
the Property as is, together with either the said
3% or any insurance proceeds payable by virtue of
such loss or damage, or of cancelling the Contract
and receiving return of deposit(s) made hereunder.
XXVI. MAINTENANCE: Notwithstanding the provisions
of Paragraph XXIV, between Effective Date and Closing
Date, all personal property on the premises and real
property, including lawn, shrubbery and pool, if any,
shall be maintained by Seller in the condition they
existed as of Effective Date, ordinary wear and tear
excepted, and Buyer or Buyer's designee will be permitted
access for inspection prior to closing in order to
confirm compliance with this standard.
XXVII. PROCEEDS OF SALE AND CLOSING PROCEDURE: The
deed shall be recorded upon clearance of funds and
evidence of title continued at Buyer's expense, to
show title in Buyer, without any encumbrances or change
which would render Seller's title unmarketable from
the date of the last evidence, and the cash proceeds
of sale shall be held in escrow by Seller's attorney
or by such other escrow agent as may be mutually agreed
upon for a period of not longer than five (5) days
from and after closing date. If Seller's title is
rendered unmarketable, Buyer shall within said five
(5) day period, notify Seller in writing of the defect
and
Seller shall have thirty (30) days from date of receipt
of such notification to cure said defect. In the event
Seller fails to timely cure said defect, all monies
paid hereunder shall, upon written demand therefor
and within five (5) days thereafter, be returned to
Buyer and, simultaneously with such repayment, Buyer
shall vacate the Property and reconvey same to the
Seller by
special warranty deed. In the event Buyer fails to
make timely demand for refund, he shall take title
as is, waiving all rights against Seller as to such
intervening defect except as may be
available to Buyer by virtue of warranties, if any,
contained in deed.
XXVIII. ESCROW: Any escrow agent receiving funds
is authorized and agrees by acceptance thereof to
promptly deposit and to hold same in escrow and to
disburse same subject to clearance thereof in accordance
with terms and conditions of Contract. Failure of
clearance of funds shall not excuse performance by
the Buyer.
XXIX. ATTORNEY FEES AND COSTS: In connection with
any litigation including appellate proceedings arising
out of this Contract, the prevailing party shall be
entitled to recover
reasonable attorney's fees and costs.
XXX.(a) DEFAULT BY SELLER: In the event that Seller
should fail to consummate the transaction contemplated
herein for any reason, except Buyer's default; (i)
Buyer may enforce specific performance of this Agreement
in a court of competent jurisdiction and in such action
shall have the right to recover damages suffered by
Buyer by reason of the delay in the acquisition of
the Property, or (ii) may bring suit for damages for
breach of this Agreement, in
which event, the deposit made hereunder shall be forthwith
returned to Buyer, or (iii) declare a default, demand
and receive the return of the deposit. All rights,
powers, options or remedies afforded to Buyer either
hereunder or by law shall be cumulative and not alternative
and the exercise of one right, power, option or remedy
shall not bar other rights, powers, options or remedies
allowed herein or by law.
XXX.(b) DEFAULT BY BUYER: In the event Buyer should
fail to consummate the transaction contemplated herein
for any reason, except default by Seller or the failure
of Seller to satisfy any of the conditions to Buyer's
obligations, as set forth herein, Seller shall be
entitled to retain the earnest money deposit, such
sum being agreed upon as liquidated damages for the
failure of Buyer to perform the duties and obligations
imposed upon it by the terms and
provisions of this Agreement and because of the difficulty,
inconvenience and uncertainty of ascertaining actual
damages, and no other damages, rights or remedies
shall in any case be
collectible, enforceable or available to Seller other
than as provided in this Section, and Seller agrees
to accept and take said deposit as Seller's total
damages and relief hereunder in such
event.
XXXI. MEMORANDUM OF CONTRACT RECORDABLE, PERSONS
BOUND AND NOTICE: Upon the expiration of the inspection
period described in paragraph XXXVI, if Buyer has
elected to proceed with purchase of the property,
the parties shall cause to be recorded, at Buyer's
option and expense, in the public records of the county
in which the property is located, an executed Memorandum
of Contract as attached hereto. This Contract shall
bind and inure to the benefit of the Parties hereto
and their successors in interest. Whenever the context
permits, singular shall include plural and one gender
shall include all. Notice given by or to the attorney
for either party shall be as effective as if given
by or to said party.
XXXII. PRORATIONS AND INSURANCE: Taxes, assessments,
rent, interest, insurance and other expenses and revenue
of the Property shall be prorated as of date of closing.
Buyer shall have the option of taking over any existing
policies of insurance on the Property, if assumable,
in which event premiums shall be prorated. The cash
at closing shall be increased or decreased as may
be required by said prorations. All references in
Contract to prorations as of date of closing will
be deemed "date of occupancy" if occupancy
occurs prior to closing, unless otherwise provided
for herein.
XXXIII. CONVEYANCE: Seller shall convey title to
the Property by statutory warranty deed subject only
to matters contained in Paragraph VII hereof and those
otherwise accepted by Buyer. Personal property shall,
at the request of Buyer, be conveyed by an absolute
bill of sale with warranty of title, subject to such
liens as may be otherwise provided for herein.
XXXIV. UTILITIES: Seller shall, at no expense to
Seller, actively work with Buyer to assist Buyer in
obtaining electricity, water, sewage, storm drainage,
and other utility services for
development of the Property.
XXXV. ENGINEERING PLANS AND STUDIES: Upon the execution
hereof, Seller shall furnish to Buyer all engineering
plans, drawings, surveys, artist's renderings and
economic and financial studies which Seller has, if
any, relating to the Property, and all such information
may be used by Buyer in such manner as it desires;
provided that in the event Buyer fails to purchase
the Property for any reason other than Seller's default,
all such information shall be returned to Seller together
with any information that Purchaser may have compiled
with respect to the Property.
XXXVI. INSPECTION OF PROPERTY: Buyer shall have
sixty (60) days from the date hereof to determine
the elevation, grade, and topography of the Property
and to conduct engineering and soil boring tests as
the Buyer deems necessary in order to determine the
usability of the Property. Buyer may in its sole and
absolute discretion, give notice of termination of
this Agreement at any time prior to the expiration
of the sixty (60) day inspection period, and upon
such termination, all deposits held in escrow shall
be returned to Buyer.
XXXVII. PENDING LITIGATION: Seller warrants and
represents that there are no legal actions, suits
or other legal or administrative proceedings, including
cases, pending or threatened
or similar proceedings affecting the Property or any
portion thereof, nor has Seller knowledge that any
such action is presently contemplated which might
or does affect the conveyance contemplated hereunder.
XXXVIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES:
The representations and warranties set forth in this
Contract shall be continuing and shall be true and
correct on and as of the closing date with the same
force and effect as if made at that time, and all
of such representations and warranties shall survive
the closing and shall not be affected by any investigation,
verification or approval by any party hereto or by
anyone on behalf of any party hereto.
XXXIX. ACQUIRING APPROVALS: The obligation of Buyer
to close is conditioned upon Buyer's having acquired
all the necessary approvals and permits to use the
property for
_______________________.
XL. OTHER AGREEMENTS: No prior or present agreements
or representations shall be binding upon any of the
Parties hereto unless incorporated in this Contract.
No modification or change in this Contract shall be
valid or binding upon the Parties unless in writing,
executed by the Parties to be bound thereby.
XLI. SPECIAL CLAUSES: ________________________________________
___________________________________________________________________
Witnesses: Executed by Buyer on: ________
____________________________ ______________________________
Buyer
____________________________
____________________________ ______________________________
Buyer
____________________________
Executed by Seller on: _______
____________________________ ______________________________
Seller
____________________________
____________________________
______________________________
Seller
____________________________
Deposit(s) under II (a) received; if check, subject
to clearance, and terms hereof are accepted.
By:___________________________________________
(Escrow Agent)
BROKERAGE FEE: Seller agrees to pay the registered
real estate Broker named below, at time of closing,
from the disbursements of the proceeds of sale, compensation
in the total amount of ______ percent (_____%) of
gross purchase price of $____________ for his services
in effecting the sale by finding a Buyer, ready, willing
and able to purchase pursuant to the foregoing Contract.
In the event Buyer fails to perform and deposit(s)
is retained, 50% thereof, but not exceeding the Broker's
fee above computed, shall be paid to the Broker as
full consideration for Broker's services including
costs expended by Broker, and the balance shall be
paid to Seller. If the transaction shall not be closed
because of refusal or failure of Seller to perform,
the Seller shall pay said fee in full to Broker on
demand. Seller agrees to indemnify, defend and hold
Buyer harmless from and against all claims or demands
with respect to any brokerage fees or agent's commissions
or other compensation asserted by any person or entity
in connection with this agreement or the transaction
contemplated herein.
______________________________ _____________________________
Broker Seller
_____________________________
Seller
NOTICE
The information in this document is designed to
provide an outline that you can follow
when formulating business or personal plans. Due to
the variances of many local, city, county
and state laws, we recommend that you seek professional
legal counseling before entering into
any contract or agreement.
