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An agreement to purchase and sell is a contract between a buyer and a seller that creates an obligation for a buyer to buy and a seller to sell. This agreement can be used to facilitate the sale of a product or service. The function of the agreement is to ensure that both parties are reasonably protected against the deal falling through. It also contains key details about the sale, what protocols should be followed, and how the process will go.
This agreement is typically proposed by a lawyer assisting in the sale of a product or service. It establishes a selling price, selling date, and any special charges or fees that apply to the transaction.
Below is a list of common sections included in Agreements To Purchase And Sell. These sections are linked to the below sample agreement for you to explore.
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered as of the Effective Date (as defined herein), by and between NETIQ CORPORATION, a Delaware corporation (“Seller”), and CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (“Buyer”).
This Agreement is made with respect to the following facts and circumstances:
Seller is the owner of certain improved real property located in the City of San Jose (“City”), County of Santa Clara (“County”), California, consisting of approximately six (6) acres commonly known as 3553 North First Street, A.P.N. 097-55-012, and legally described in Exhibit “F” attached hereto (the “ Land ”). No representation is made by Seller as to the size of the Land.
In consideration of the mutual covenants contained herein, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller the following (collectively, the “Property”): (i) the Land; (ii) any and all improvements, rights, permits, privileges, covenants, conditions and easements appurtenant to the Land, (iii) the Personal Property described in Section 17.18; and (iv) all of Seller’s right, title and interest, if any, in the unexpired warranties and guaranties with respect to the Property (to the extent assignable) (“Warranties”); all of Seller’s right, title and interest, if any, in the plans and specifications for the Improvements (to the extent assignable) (“Plans”); all of Seller’s right, title and interest, if any, in all intangible personal property (other than any tradenames or trademarks of Seller or any affiliated or related entity of Seller) now owned by Seller with respect to the Property, including, without limitation, all governmental permits, approvals and licenses (to the extent assignable) (“Permits”); and all of Seller’s right, title and interest, if any, in the Service Contracts (as defined below, and to the extent assignable) to be assigned to Buyer pursuant to this Agreement (collectively, the “ Intangible Property ”). Seller also shall transfer to Buyer all of Seller’s right, title and interest in that certain Ground and Rooftop Lease Agreement, dated April 18, 2002 (“Rooftop Lease”), between Seller and GTE Mobilnet of California Limited Partnership d/b/a Verizon Wireless by Cellco Partnership, its General Partner (“GTE”), a copy of which previously has been delivered by Seller to Buyer.
1. Agreement to Purchase and Sell . Subject to the terms and conditions hereof, Seller agrees to sell, and Buyer agrees to purchase, the Property.
2. Purchase Price . The total purchase price for the Property (the “ Purchase Price ”) shall be Ten Million Two Hundred Seventy Thousand Two Hundred and No/100 Dollars ($10,270,200.00). The Purchase Price shall be paid as follows:
2.1 Deposit . Buyer shall deposit funds with the Title Company (as defined below) in accordance with the following provisions, and all such funds so deposited with the Title Company (including all accrued interest) shall be referred to herein as the “ Deposit ”:
2.1.1 Initial, Additional Deposits . Within two (2) business days after the date upon which Buyer and Seller each have executed and delivered this Agreement to the other (“Effective Date”), Buyer shall cause Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in immediately available funds to be delivered to the Title Company. The failure of Buyer to deliver the foregoing deposit in a timely fashion shall be a material default and shall entitle Seller, at Seller’s sole option, to terminate this Agreement by giving written notice to Buyer at any time until such funds are delivered by Buyer to the Title Company. Within two (2) business days following the satisfaction or waiver by Buyer of the conditions set forth in Sections 4.2 and 5.2., Buyer shall deliver an additional Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in immediately available funds to the Title Company, for a total Deposit of Five Hundred Thousand and No/100 Dollars ($500,000.00), plus accrued interest. The failure of Buyer to make the foregoing increase in the Deposit in a timely fashion shall be a material default and shall entitle Seller, at Seller’s sole option, to terminate this Agreement by giving written notice to Buyer at any time until such additional deposit is made by Buyer, whereupon this Agreement shall terminate and Seller may recover as liquidated damages the Deposit in possession of the Title Company, as provided in Section 12.1. Subject to the satisfaction of the conditions precedent set forth in Section 6 below, or as otherwise provided herein, from and after the satisfaction or waiver by Buyer of the conditions set forth in Sections 4.2 and 5.2, the Deposit shall be non-refundable to Buyer. The Deposit shall be applied against the payment of the Purchase Price at the Closing.
2.2 Interest on Deposit . The Deposit shall be held in an interest-bearing account by the Title Company as an earnest money deposit toward the Purchase Price. The Deposit shall be held in Escrow (as defined below) in accordance with the provisions of this Agreement with any interest accruing thereon to be paid or credited, except as otherwise provided in this Agreement, to Buyer.
2.3 Disposition of Deposit . At the Closing (as defined below), the Deposit shall be paid to Seller and shall be applied and credited toward the payment of the Purchase Price. If the Closing shall not occur by reason of termination of this Agreement in accordance with Sections 4.2, 5.2, 6.3, 12.2 or 13, then Buyer shall pay all title, survey and escrow charges (either immediately by written check or by a deduction from the Deposit), in which event the Title Company is authorized to deduct such charges from the Deposit, the remaining balance of the Deposit shall be returned to Buyer (subject to Section 4.1), and neither Buyer nor Seller shall have any further obligation or liability to each other, save and except for the obligations of the Buyer and the Seller that are stated to survive the termination of this Agreement (the “ Surviving Obligations ”). If Buyer breaches its obligation to purchase the Property or this Agreement is terminated by Seller due to a default by Buyer, then the Title Company shall pay to Seller the Deposit, which shall be retained by Seller as liquidated damages, as provided in Section 12.1 hereof.
2.4 Cash Balance . The balance of the Purchase Price, plus or minus prorations and other adjustments as provided in this Agreement, if any, shall be due at Closing and shall be paid by Buyer by wire transfer of immediately available funds paid to the Title Company not later than the date of the Closing.
How ContractsCounsel Works Hiring a lawyer on ContractsCounsel is easy, transparent and affordable. 1. Post a Free Project Complete our 4-step process to provide info on what you need done. 2. Get Bids to Review Receive flat-fee bids from lawyers in our marketplace to compare. 3. Start Your Project Securely pay to start working with the lawyer you select.3.1 Opening of Escrow . Seller shall deliver a copy of a fully executed counterpart of this Agreement into escrow (“ Escrow ”) to be established at Chicago Title Company, Chicago Title Insurance Company, 700 South Flower Street, Suite 3305, Los Angeles, CA 90017, Attention: Frank Jansen, telephone: (213) 488-4346; facsimile: (213) 891-0834 (“ Title Company ”), on or before two (2) business days following the Effective Date.
3.2 Instructions to Title Company . Seller and Buyer shall each be entitled to submit escrow instructions to the Title Company in connection with the Closing (as defined below) of the Escrow. Seller and Buyer shall, in addition, execute such further escrow instructions as the Title Company may reasonably require in connection with the Closing, so long as such instructions are consistent with the provisions of this Agreement and the escrow instructions of Seller and Buyer. In the event of any conflict between the terms and conditions of this Agreement and the provisions of any escrow instructions prepared by Seller, Buyer or the Title Company, the terms and conditions of this Agreement shall control.
3.3 Closing . The purchase and sale of the Property as contemplated by this Agreement, including but not limited to the delivery of the Deed (as defined below), payment of the Purchase Price and receipt thereof by Seller, and the completion of the other matters required by this Agreement to be done contemporaneously (the “ Closing ”), shall occur at the offices of the Title Company and be completed by 5:00 p.m. not later than the date that is two (2) business days after the later of the last day of the Due Diligence Contingency Period and the last day of the Title Due Diligence Contingency Period (“ Required Closing Date ”), or such earlier or later date approved in writing by both Buyer and Seller. The date on which the Closing actually occurs shall be referred to as the “ Closing Date ”.
3.4 Section 1031 Exchange . Either party shall have the right upon providing the other written notice at least three (3) business days prior to the Closing that it desires to arrange for an IRS Section 1031 exchange of the Property (“ Exchange ”). Such party shall have the right to arrange for an Exchange of the Property, provided that:
3.4.1 The non-exchanging party will cooperate with the exchanging party and will execute documents reasonably necessary to facilitate the Exchange;
3.4.2 The non-exchanging party shall incur no additional cost or expense or other additional liability in connection with the Exchange;
3.4.3 The exchanging party shall indemnify, defend, protect and hold harmless the non-exchanging party from and against any and all Claims (as defined in Section 4.2.1.2 below) arising out of, in connection with, or as a result of the Exchange;
3.4.4 The Exchange shall not delay the Closing;
3.4.5 The non-exchanging party shall not be required to take title to or sell any property other than the Property in connection with the Exchange; and
3.4.6 The exchanging party shall remain liable to the non-exchanging party for all of the exchanging party’s covenants, warranties and representations under this Agreement even if a person or entity other than the exchanging party takes title to the Property in connection with the implementation of the Exchange.
4. Inspection; Additional Access .
4.1 Documents . To the extent such items are in Seller’s possession, and are not either proprietary to Seller or subject to any agreement by Seller to maintain their confidentiality, within five (5) days after the Effective Date Seller shall provide to Buyer, or make available for inspection at the Property, certain information and documents set forth on Exhibit “A” attached hereto (the “ Property Information ”). Seller has not undertaken any independent investigation as to the truth or accuracy of the Property Information and is providing the same solely as an accommodation to Buyer, without representation or warranty of any kind as to the thoroughness or accuracy of the information contained therein or Buyer’s ability to rely thereon. The provisions of this Section 4.1 shall survive Closing and/or any expiration or earlier termination of this Agreement, provided that following the Closing, Buyer shall be entitled to employ all data and information with respect to the Property as reasonably required in connection with the ownership and operation of the Property.
4.1.1 Natural Hazard Disclosure Statement . Buyer and Seller acknowledge that Seller is required to disclose if any of the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency; (ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area that may contain substantial forest fire risks and hazards; (v) an earthquake fault or special studies zone; or (vi) a seismic hazard zone. Seller has informed Buyer that Seller has engaged the services of Disclosure Source (“ Natural Hazard Expert ”) to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill its disclosure obligations with respect to the natural hazards and to report the results of its examination to Buyer and Seller in writing. The provision of the written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller from its disclosure obligations referred to above, and, for the purposes of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of Seller for errors and/or omissions not within its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. Attached hereto as Exhibit “B” is a copy of a current Natural Hazard Disclosure Statement issued by the Natural Hazard Expert with respect to the Property.
4.2 Due Diligence .
4.2.1 Property Inspection . Buyer shall have until 5:00 p.m. Pacific Time on the date that is thirty (30) days after the Effective Date (the “ Due Diligence Contingency Period ”) in which to examine, inspect, and investigate the Property, and to determine whether the purchase of the Property is satisfactory to Buyer, in its sole and absolute discretion. Buyer may terminate this Agreement pursuant to this Section 4.2.1, in its sole and absolute discretion, by giving written notice of termination (the “ Due Diligence Termination Notice ”) to Seller and Title Company on or before 5:00 p.m. Pacific Time on the last day of the Due Diligence Contingency Period. Buyer’s failure to notify Seller and Title Company in writing on or before the expiration of the Due Diligence Contingency Period that Buyer has elected to terminate this Agreement pursuant to this Section 4.2.1 shall be deemed as notice to Seller that Buyer has elected to proceed and waive its right to terminate this Agreement pursuant to Section 4.2.1. In the event Buyer elects, or is deemed to have elected, to terminate this Agreement pursuant to this Section 4.2.1, then the provisions of Section 2.3 shall apply and promptly upon such termination, Buyer shall deliver to Seller all Property Information received from Seller and (without representation or warranty) all third party physical inspection reports, including, without limitation, environmental reports (collectively, the “ Information ”) that Buyer and/or its agents, members, partners, related and affiliated entities, employees, representatives, consultants, contractors, successors or assigns (collectively, “ Buyer’s Agents ”) obtain or generate in connection with or resulting from Buyer’s investigation of the Property (including, without limitation, any Inspection conducted pursuant to Section 4.2.1.1.1 below), and neither Buyer nor Seller shall thereafter have any further rights or obligations under this Agreement unless expressly provided otherwise herein. If this Agreement is terminated or deemed terminated pursuant to the foregoing provisions of this Section 4.2.1, then neither party shall have any further rights or obligations hereunder (except with respect to those matters expressly set forth to survive such expiration or earlier termination).
4.2.1.1.1 Inspections; Testing . Buyer shall have reasonable access to the Property during the term of this Agreement for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests, and any other physical inspections, studies, or tests reasonably required by Buyer (collectively, the “ Inspections ”) with respect to the Property. Unless otherwise agreed in writing by Seller, such access shall be during normal business hours and upon prior written notice (or verbal notice wherein Buyer actually speaks with a representative of Seller [not a voicemail message] with written notice delivered immediately thereafter, if requested at such time) to Seller. Such access shall not unreasonably interfere with Seller’s use of the Property and the access to certain areas of the Property may be conditioned upon the execution of a reasonable form of non-disclosure agreement by Buyer or its representatives. Buyer shall maintain for itself and on behalf of its consultants and contractors, or Buyer shall maintain and shall ensure that its agents, consultants and contractors maintain, public liability and property damage insurance insuring against any liability arising out of any entry, tests or investigations of the Property pursuant to the provisions hereof. Such insurance maintained by Buyer and/or its consultants, agents and contractors (as applicable) shall be in the amount of Two Million Dollars ($2,000,000.00) combined single limit for injury to or death of one or more persons in an occurrence, and for damage to tangible property (including loss of use) in an occurrence. The policy maintained by Buyer shall insure the contractual liability of Buyer covering the indemnities herein and shall (i) name the Seller and its successors, assigns and affiliates as additional insureds, (ii) contain a cross-liability provision, and (iii) contain a provision that “the insurance provided by
Buyer hereunder shall be primary and non-contributing with any other insurance available to Seller.” Buyer shall provide Seller with evidence of such insurance coverage prior to any entry, tests or investigations of the Property. The aforementioned insurance coverage may be obtained under a blanket policy carried by Buyer or its agents, consultants or contractors, as the case may be. Notwithstanding the foregoing, Buyer shall not be permitted to undertake any intrusive or destructive testing of the Property, including without limitation a “Phase II” environmental assessment, (“Physical Testing”) without in each instance first obtaining Seller’s written consent thereto, which consent Seller shall not unreasonably withhold. Prior to entering the Property (and on each and every occasion), Buyer shall deliver to Seller prior written notice thereof (or verbal notice wherein Buyer actually speaks with a representative of Seller [not a voicemail message] with written notice delivered immediately thereafter, if requested at such time), and shall afford Seller a reasonable opportunity to have a representative of Seller present to accompany Buyer while Buyer performs its evaluations, inspections, tests, Physical Testing and other investigations of the physical condition, including without limitation, the environmental condition, of the Property. Buyer also shall have the right to contact any governmental agency with respect to the Property, including with respect to any Hazardous Materials (as defined below) on, or the environmental condition of, the Property, including, without limitation, in connection with a “Phase I” or “Phase II” environmental assessment. Prior to any such contact, Buyer shall give Seller written notice thereof (or verbal notice wherein Buyer actually speaks with a representative of Seller [not a voicemail message] with written notice delivered immediately thereafter, if requested at such time), and shall afford Seller a reasonable opportunity to have a representative of Seller present to accompany Buyer while Buyer contacts any such governmental agency; provided that no such notice or opportunity for Seller to be present is required for customary and ordinary inquiries as to zoning. In addition, prior to any entry to perform any necessary on-site inspections, tests, Physical Testing or investigations with respect to the physical condition of the Property, Buyer shall give Seller written notice thereof (or verbal notice wherein Buyer actually speaks with a representative of Seller [not a voicemail message] with written notice delivered immediately thereafter, if requested at such time), including the identity of the company or party(s) who will perform such inspections, tests, Physical Testing or investigations and the proposed scope of the inspections, tests, Physical Testing or investigations, including, without limitation, the soil, drainage and seismic condition of the Property, its compliance with applicable laws, codes, regulations and governmental approvals other than zoning and the availability of utilities and feasibility of the Property for the use intended by Buyer. Seller shall approve or disapprove any proposed inspections, tests, Physical Testing or investigations and the party(s) performing the same within one (1) business day after receipt of such notice. Seller’s failure to advise Buyer of its disapproval of any proposed inspections, tests, Physical Testing or investigations and the party(s) performing the same within such one (1)- business day period shall be deemed Seller’s approval thereof, except to the extent said proposed inspections, tests, Physical Testing or investigations relate to “Phase II” environmental matters, in which event Seller’s failure to advise Buyer of its approval or disapproval of any proposed environmental inspections, tests or investigations and the party(s) performing the same within such one (1) business day period shall be deemed Seller’s disapproval thereof. Notwithstanding anything to the contrary contained in this Agreement, if Buyer believes that applicable law requires disclosure to any governmental authority or regulatory agency regarding any Hazardous Material on or environmental condition of the Property, including, without limitation, in connection with Buyer’s performance of a “Phase I” or “Phase II” environmental site assessment, Buyer shall so notify Seller and Seller shall determine
whether disclosure is required and shall make such disclosure, if required in Seller’s sole but reasonable judgment. The term “Hazardous Materials” as used in this Agreement shall mean and refer to (a) any hazardous or toxic wastes, materials or substances, or chemicals, and other pollutants or contaminants, which are or become regulated by applicable local, state, regional and/or federal orders, ordinances, statutes, rules, regulations (as interpreted by judicial and administrative decisions) and laws; (b) asbestos, asbestos-containing materials or urea formaldehyde; (c) polychlorinated biphenyls; (d) flammables, explosive, corrosive or radioactive materials; (e) medical waste and biochemicals; and (f) gasoline, diesel, petroleum or petroleum by-products.
4.2.1.2 Indemnification . Buyer, at its sole cost and expense, shall comply with all applicable federal, state and local laws, rules, statutes, regulations, ordinances, or policies in conducting the Inspections and Physical Testing. Buyer and Buyer’s Agents shall keep the Property free clear of any liens and shall hold harmless, protect, defend (with counsel reasonably acceptable to Seller) and indemnify Seller and Seller’s partners, members, trustees, directors, officers, shareholders, employees, representatives, property managers, asset managers, agents, attorneys, affiliated and related entities, heirs, successors and assigns (collectively, the “ Indemnitees ”) and the Property from and against any liabilities, claims, demands, judgments, causes of action, losses, costs, damages, penalties, fines, taxes, remedial actions, removal and disposal costs, investigation and remedial costs and expenses (including, without limitation, attorneys’, expert and consultant fees), whether direct or indirect, known or unknown (collectively, “ Claims ”) arising out of or in connection with Buyer’s or Buyer’s Agents’ entry on the Property and/or their performance of the Inspections and Physical Testing resulting in (1) any injuries to persons (including death) or damage to any property; provided, however, that the foregoing indemnity shall not extend to any liabilities to the extent arising as a result of the mere discovery by Buyer of a pre-existing condition that has a deleterious effect on the Property or any liabilities resulting from the gross negligence or willful misconduct of any of the Indemnitees, or (2) any mechanic’s, workers’ or other liens on the Property, by reason of or relating to the work or activities conducted on the Property by Buyer or Buyer’s Agents. The foregoing provisions shall not be limited by in any way by any other terms of this Agreement, including, without limitation, Section 2.3, and shall survive the Closing and/or the expiration or earlier termination of this Agreement. In no event will Buyer or Buyer’s Agents be liable to Seller in contract, tort or otherwise with respect to any indirect, consequential, special, exemplary or incidental damages in connection with this Agreement or any closing documents.
4.2.1.3 Restoration . Buyer, at its sole cost and expense, shall clean up and repair the Property in whatever manner necessary after Buyer or Buyer’s Agents’ entry thereon so that the Property shall be returned to substantially the same condition that existed prior to Buyer’s or Buyer’s Agents’ entry thereon.
4.3 Buyer’s Information . Seller shall promptly be provided (without representation or warranty) with a copy of all Information that Buyer or Buyer’s Agents obtain or generate in connection with or resulting from their Inspections, Physical Testing and work under Section 4.2. All such nonpublic Information shall be deemed confidential, and Buyer shall not disclose or permit Buyer’s Agents to disclose to any third party, other than Buyer’s consultants, agents, lenders and attorneys associated with the applicable investigation of the Property and other than as may be required by applicable law (subject to the provisions of Section 4.2 above), the results of Buyer’s Inspection.
4.4 Buyer’s Access . If Buyer approves the condition of the Property by the last day of the Due Diligence Contingency Period and timely deposits into Escrow the second installment of the Deposit, from and after the date upon which both of the foregoing have occurred until the Closing Date (“ Early Access Period ”), Buyer, subject to the prior scheduling of such access with Seller, shall have the right to access unoccupied portions of the Property for planning purposes. In no event shall Buyer have the right to commence construction of any improvements on, in, under or about the Property prior to the Closing Date. Also during the Early Access Period, Buyer shall have the right to market the Property for lease and to show the Property to proposed third party tenants. With respect to showing the Property to proposed tenants, any such showing shall have been scheduled with Seller in advance, upon reasonable prior notice (with such notice to include the identity of the third party and to be in writing or verbally wherein Buyer actually speaks with a representative of Seller [not a voicemail message]), shall be subject to Seller’s security procedures and shall not include any area of the Property deemed by Seller, in its sole and absolute discretion, to contain confidential or proprietary information. Seller shall have the right to have an employee accompany any person entering the Property pursuant to this Section 4.4. Notwithstanding anything to the contrary contained in this Section, Seller shall have the right, in its sole and absolute discretion, to prohibit any third party who is a competitor of Seller from entering the Property. Buyer’s indemnification obligations set forth in Section 4.2.1.2 above shall apply to Buyer’s entry onto the Property pursuant to this Section 4.4.
4.5 Service Contracts . During the Due Diligence Contingency Period Buyer shall notify Seller as to which Service Contracts Buyer will assume (so long as such Service Contracts are assignable) and which Service Contracts shall be terminated by Seller at the end of the Leaseback Period, as defined in Section 18 below . Buyer will assume the obligations arising from and after the end of the Leaseback Period under those Service Contracts that are not in default as of the end of the Leaseback Period and which Buyer has elected to assume. Seller shall terminate at the end of the Leaseback Period all Service Contracts that are not so assumed, including Seller’s property management agreement.