COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
(North Dakota)
TABLE OF CONTENTS
- Section I Document Header
- Section II Definitions
- Section III Operative Provisions
- Section IV Representations & Warranties
- Section V Covenants & Restrictions
- Section VI Default & Remedies
- Section VII Risk Allocation
- Section VIII Dispute Resolution
- Section IX General Provisions
- Section X Execution Block
[// GUIDANCE: Update page numbers if converting to a final word-processed format.]
SECTION I — DOCUMENT HEADER
This Commercial Real Estate Purchase and Sale Agreement (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
- [SELLER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] (“Seller”); and
- [BUYER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] (“Buyer”).
Seller and Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
Recitals
A. Seller is the fee simple owner of certain real property located in the State of North Dakota as more particularly described on Exhibit A attached hereto (the “Land”), together with all improvements thereon, all easements, rights, privileges, tenements, hereditaments, fixtures, and appurtenances thereto (collectively with the Land, the “Property”).
B. Buyer desires to purchase, and Seller desires to sell, the Property on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION II — DEFINITIONS
The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Any term not defined in this Section II, but defined elsewhere in the Agreement, shall have the meaning set forth in that location.
“Affiliate” means, with respect to any Person, a Person that directly or indirectly controls, is controlled by, or is under common control with such Person.
“Approved Title Commitment” has the meaning set forth in Section 3.4(a).
“AS-IS Condition” has the meaning set forth in Section 4.1(c).
“Business Day” means any day other than a Saturday, Sunday, or legal holiday in the State of North Dakota.
“Closing” has the meaning set forth in Section 3.7(a).
“Closing Date” means the date on which the Closing actually occurs pursuant to Section 3.7(a).
“Contract Deposit” has the meaning set forth in Section 3.2(a).
“Due Diligence Documents” has the meaning set forth in Section 3.3(a).
“Environmental Laws” means all federal, state, and local laws, regulations, and ordinances relating to protection of the environment, natural resources, or human health and safety, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) and comparable North Dakota statutes.
“Excluded Obligations” has the meaning set forth in Section 7.2(a).
“Force Majeure Event” has the meaning set forth in Section 7.4.
“Indemnified Parties” has the meaning set forth in Section 7.2(a).
“Liability Cap” has the meaning set forth in Section 7.3.
“Permitted Exceptions” has the meaning set forth in Section 3.4(c).
“Person” means any natural person, corporation, limited liability company, partnership, trust, government, or other legal entity.
“Purchase Price” has the meaning set forth in Section 3.1.
“Specific Performance” has the meaning set forth in Section 6.3(a).
“Title Company” means [TITLE COMPANY NAME], or any other title insurer acceptable to both Parties.
“Zoning Report” has the meaning set forth in Section 3.5(b).
[// GUIDANCE: Add, delete, or revise definitions to align with deal-specific terms. Cross-check every defined term for usage consistency.]
SECTION III — OPERATIVE PROVISIONS
3.1 Purchase Price. Buyer shall purchase the Property from Seller for an aggregate purchase price of $[AMOUNT] (the “Purchase Price”), subject to prorations and adjustments as provided herein.
3.2 Deposit.
(a) Within two (2) Business Days after the Effective Date, Buyer shall deposit $[DEPOSIT AMOUNT] (the “Contract Deposit”) with the Title Company, to be held in an interest-bearing, federally insured escrow account.
(b) The Contract Deposit (together with any interest earned thereon) shall be applied to the Purchase Price at Closing or disbursed as otherwise provided herein.
3.3 Access; Due Diligence.
(a) Within three (3) Business Days after the Effective Date, Seller shall deliver to Buyer copies of all material documents in Seller’s possession or control relating to the Property, including, without limitation, environmental reports, leases, licenses, service contracts, surveys, title policies, permits, certificates of occupancy, and zoning documents (collectively, the “Due Diligence Documents”).
(b) Buyer shall have until 5:00 p.m. Central Time on the date that is [DUE DILIGENCE DAYS] days after the Effective Date (the “Due Diligence Period”) to conduct, at Buyer’s expense, such investigations of the Property as Buyer deems appropriate, including physical inspections, environmental assessments, and review of zoning compliance.
(c) Buyer may terminate this Agreement for any reason or no reason before the expiration of the Due Diligence Period by written notice to Seller, whereupon the Contract Deposit shall be refunded to Buyer, except for $[NON-REFUNDABLE PORTION] which shall be non-refundable but applicable to the Purchase Price at Closing.
3.4 Title and Survey.
(a) Within five (5) Business Days after the Effective Date, Seller shall cause the Title Company to issue a commitment for an ALTA Owner’s Policy of Title Insurance (the “Title Commitment”) in the amount of the Purchase Price, together with legible copies of all exceptions (collectively, the “Title Documents”).
(b) Buyer shall, at its option, obtain an ALTA/NSPS land title survey of the Property (the “Survey”).
(c) Buyer shall have until the end of the Due Diligence Period to object in writing to any matters shown on the Title Commitment or Survey. Items not objected to by Buyer (or cured by Seller pursuant to Section 3.4(d)) shall be “Permitted Exceptions.”
(d) Seller shall have five (5) Business Days after receipt of Buyer’s objections to elect, by written notice, whether to cure any objection. If Seller elects (or is deemed to elect) not to cure, Buyer may either (i) terminate this Agreement and receive a refund of the Contract Deposit, or (ii) proceed to Closing, accepting the Title Commitment subject to the uncured exceptions.
3.5 Environmental and Zoning Matters.
(a) Buyer may, at its sole cost, order a Phase I Environmental Site Assessment and, if recommended, a Phase II assessment.
(b) Buyer may, at its sole cost, obtain a zoning compliance report (the “Zoning Report”).
(c) Seller shall cooperate in all reasonable respects with Buyer’s environmental and zoning investigations, including executing recognized lender-required reliance letters.
[// GUIDANCE: North Dakota does not impose a statutory seller environmental disclosure for commercial property, but contractual reps/indemnity are customary. Adapt per deal.]
3.6 Prorations and Closing Adjustments. Rents (if any), real estate taxes, assessments, utilities, and operating expenses shall be prorated as of 11:59 p.m. on the day immediately preceding the Closing Date.
3.7 Closing.
(a) The closing of the purchase and sale contemplated herein (the “Closing”) shall occur on or before [CLOSING DATE] (the “Scheduled Closing Date”) at the offices of the Title Company or by escrow-style closing.
(b) At Closing, Seller shall deliver to Buyer (i) a duly executed and acknowledged warranty deed in proper statutory form conveying fee simple title to the Land, subject only to Permitted Exceptions; (ii) a Bill of Sale for personal property; (iii) an Assignment and Assumption of all leases and contracts; (iv) an owner’s affidavit and gap indemnity required by the Title Company; and (v) such other instruments as are customary in North Dakota commercial real estate closings.
(c) Buyer shall deliver to the Title Company the Purchase Price, less the Contract Deposit and plus or minus adjustments, in immediately available funds.
3.8 Conditions Precedent.
(a) Buyer’s obligation to close is subject to:
(i) Title Company’s readiness to issue an owner’s policy subject only to Permitted Exceptions;
(ii) absence of any material adverse change to the Property;
(iii) truth and accuracy in all material respects of Seller’s representations and warranties as of Closing;
(iv) Seller’s performance of all covenants required to be performed on or before Closing.
(b) Seller’s obligation to close is subject to:
(i) Buyer’s delivery of the Purchase Price;
(ii) Buyer’s performance of its covenants;
(iii) absence of any injunction or order prohibiting Closing.
SECTION IV — REPRESENTATIONS & WARRANTIES
4.1 Seller’s Representations and Warranties. Seller represents and warrants to Buyer that, as of the Effective Date and as of Closing:
(a) Authority. Seller is duly organized, validly existing, and in good standing under the laws of its state of organization, and has full power and authority to execute and deliver this Agreement and consummate the transactions contemplated hereby.
(b) Title. Seller is the lawful fee simple owner of the Property, free and clear of all liens other than Permitted Exceptions.
(c) AS-IS Condition. Except as expressly set forth herein, Seller makes no representation or warranty as to the physical condition of the Property. Buyer acknowledges that, upon Closing, Buyer shall accept the Property in its “AS-IS, WHERE-IS” condition with all faults.
(d) Environmental Matters. Seller has not received written notice of any violation of Environmental Laws with respect to the Property that remains uncured.
(e) Litigation. To Seller’s knowledge, there is no pending or threatened litigation or condemnation proceeding affecting the Property.
(f) Zoning. To Seller’s knowledge, the current use of the Property complies with applicable zoning ordinances and regulations.
(g) Contracts. There are no management, service, or other agreements affecting the Property that will survive Closing other than those disclosed to Buyer in writing.
4.2 Buyer’s Representations and Warranties. Buyer represents and warrants to Seller that, as of the Effective Date and as of Closing:
(a) Authority. Buyer is duly organized, validly existing, and in good standing under the laws of its state of organization and has full power and authority to execute and deliver this Agreement and consummate the transactions contemplated hereby.
(b) Financial Capacity. Buyer has, and at Closing will have, sufficient funds to timely perform all of its obligations hereunder.
(c) Independent Investigation. Buyer is an experienced real estate investor and is relying on its own investigation and not on any representations (except those expressly made by Seller in this Agreement or in any document delivered at Closing).
4.3 Survival. Seller’s and Buyer’s representations and warranties shall survive Closing for a period of [SURVIVAL PERIOD] months (the “Survival Period”).
4.4 Disclosure Schedule. Any exception to the representations and warranties set forth above shall be disclosed on a schedule attached hereto as Schedule 4 (the “Disclosure Schedule”).
SECTION V — COVENANTS & RESTRICTIONS
5.1 Seller’s Affirmative Covenants. From the Effective Date through Closing, Seller shall:
(a) operate and maintain the Property in substantially the same manner in which it has been operated and maintained prior to the Effective Date;
(b) maintain in force all existing insurance;
(c) provide Buyer and its agents reasonable access to the Property upon at least twenty-four (24) hours’ prior notice.
5.2 Seller’s Negative Covenants. Seller shall not, without Buyer’s prior written consent:
(a) create or permit any lien, easement, or encumbrance on the Property, other than Permitted Exceptions;
(b) enter into any new lease, service contract, or other agreement affecting the Property that would bind Buyer after Closing;
(c) materially alter the Property.
5.3 Buyer’s Covenants. Buyer shall:
(a) maintain the confidentiality of all non-public information provided by Seller;
(b) promptly restore any physical damage to the Property caused by Buyer’s inspections.
5.4 Notice and Cure. A Party asserting breach of a covenant shall give written notice to the other Party specifying the breach. The breaching Party shall have five (5) Business Days (or such longer period as may be reasonable under the circumstances) to cure the breach.
SECTION VI — DEFAULT & REMEDIES
6.1 Buyer Default. If Buyer defaults in its obligations hereunder and fails to cure within any applicable cure period:
(a) Seller’s sole and exclusive remedy shall be to terminate this Agreement and receive the Contract Deposit as liquidated damages, the Parties acknowledging that Seller’s actual damages would be difficult to ascertain and that the Contract Deposit constitutes a reasonable estimate thereof.
(b) Seller expressly waives any right to seek consequential, punitive, or special damages against Buyer.
6.2 Seller Default. If Seller defaults in its obligations hereunder and fails to cure within any applicable cure period, Buyer may elect, as its sole and exclusive remedy, either:
(a) terminate this Agreement and receive an immediate refund of the Contract Deposit, together with reimbursement of Buyer’s actual, documented, third-party out-of-pocket due diligence costs not to exceed $[CAP]; or
(b) seek Specific Performance (as defined below).
6.3 Specific Performance; Injunctive Relief.
(a) “Specific Performance” means the equitable remedy whereby a court orders Seller to convey the Property to Buyer on the terms set forth herein.
(b) The Parties agree that monetary damages may be inadequate in the event of Seller’s default. Accordingly, Buyer shall be entitled to seek Specific Performance without posting bond.
6.4 Attorney Fees. In any action to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney fees and court costs.
[// GUIDANCE: If the Parties prefer mutual specific performance or symmetrical remedies, revise Section 6 accordingly.]
SECTION VII — RISK ALLOCATION
7.1 Risk of Loss. Risk of physical loss or damage to the Property shall remain with Seller until Closing.
7.2 Environmental Indemnity.
(a) Seller shall indemnify, defend, and hold harmless Buyer and its Affiliates, and their respective officers, directors, partners, members, managers, employees, and agents (collectively, the “Indemnified Parties”), from and against any and all losses, claims, liabilities, damages, costs, and expenses (including reasonable attorney fees) arising out of or related to (i) any breach of Seller’s representations, warranties, or covenants, and (ii) the presence, release, or threatened release of any Hazardous Materials on, under, or migrating from the Property prior to Closing (the “Excluded Obligations”).
(b) The indemnity in this Section 7.2 shall survive Closing for the applicable statute of limitations plus six (6) months.
[// GUIDANCE: Consider adding buyer-to-seller reverse indemnity for post-closing releases.]
7.3 Limitation of Liability. Except for (i) fraud, (ii) willful misconduct, and (iii) the Excluded Obligations, Seller’s aggregate liability under this Agreement shall not exceed $[LIABILITY CAP] (the “Liability Cap”).
7.4 Force Majeure. No Party shall be liable for failure to perform its obligations (other than payment obligations) due to strikes, acts of God, pandemics, governmental actions, or other events beyond that Party’s reasonable control (each, a “Force Majeure Event”), provided that the affected Party gives prompt notice and uses commercially reasonable efforts to mitigate.
7.5 Insurance. Until Closing, Seller shall maintain replacement-cost property insurance and commercial general liability insurance in commercially reasonable amounts. Buyer shall obtain, as a condition to Closing, “builder’s risk” or equivalent coverage if Buyer intends any immediate construction.
SECTION VIII — DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of North Dakota, without regard to its conflict-of-laws rules.
8.2 Forum Selection. Each Party irrevocably submits to the exclusive jurisdiction of the state courts of competent jurisdiction located in [COUNTY], North Dakota (and any appellate courts therefrom).
8.3 Optional Arbitration. [SELECT ONE:
(a) The Parties agree that any dispute shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The seat of arbitration shall be [CITY], North Dakota. Judgment upon the award may be entered in any court having jurisdiction.
OR
(b) The Parties decline arbitration; disputes shall be resolved solely in the courts designated in Section 8.2.]
[// GUIDANCE: Delete the unused bracketed option to avoid ambiguity.]
8.4 Jury Waiver. [IF APPLICABLE] EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
8.5 Specific Performance Preserved. Nothing in this Section VIII shall limit Buyer’s right to seek Specific Performance or other equitable relief pursuant to Section 6.3.
SECTION IX — GENERAL PROVISIONS
9.1 Notices. All notices shall be in writing and deemed given (i) when delivered personally, (ii) when sent by nationally recognized overnight courier, or (iii) three (3) Business Days after mailing by certified U.S. mail, return receipt requested, to the addresses set forth below (or such other address as a Party may designate by notice).
9.2 Amendment and Waiver. No amendment or waiver of any provision shall be effective unless it is in writing and signed by the Party against whom enforcement is sought.
9.3 Assignment. Neither Party may assign this Agreement without the prior written consent of the other, except that Buyer may assign to an Affiliate or a special-purpose entity wholly owned and controlled by Buyer, provided Buyer remains liable hereunder.
9.4 Entire Agreement. This Agreement (including all exhibits and schedules) constitutes the entire agreement between the Parties and supersedes all prior oral or written agreements related to the subject matter hereof.
9.5 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force if the essential terms and intent of the Agreement can still be effectuated.
9.6 Successors and Assigns. Subject to Section 9.3, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.
9.7 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original. Signatures delivered via facsimile, email (portable document format), or other electronic means shall be deemed original signatures.
9.8 Time of the Essence. Time is of the essence with respect to all dates and time periods set forth herein.
9.9 Further Assurances. Each Party shall execute and deliver such additional documents and take such further actions as may be reasonably necessary to effectuate the intent of this Agreement.
SECTION X — EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
SELLER:
[SELLER LEGAL NAME]
By: ______
Name: [NAME]
Title: [TITLE]
Date: ____
BUYER:
[BUYER LEGAL NAME]
By: ______
Name: [NAME]
Title: [TITLE]
Date: ____
ACKNOWLEDGMENTS (Notary Blocks)
[// GUIDANCE: North Dakota law generally requires notarization for recordable deeds, not for purchase agreements; include acknowledgments only if required by lender or local practice.]
EXHIBITS & SCHEDULES
Exhibit A Legal Description of the Land
Exhibit B Form of Bill of Sale
Exhibit C Assignment and Assumption of Leases and Contracts
Schedule 4 Disclosure Schedule
[// GUIDANCE: Attach all referenced exhibits and schedules before circulation. Ensure the legal description matches the deed and survey.]