COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT
[State of Nebraska]
[// GUIDANCE: This is a sophisticated, court-ready template designed for transactions involving Nebraska commercial real property. All bracketed language must be reviewed and customized by counsel prior to use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Purchase and Sale; Earnest Money
- Property; Permitted Exceptions
- Purchase Price; Payment Terms
- Due Diligence; Inspections; Zoning Compliance
- Title Matters
- Closing; Deliveries
- Prorations; Closing Costs; Transfer Taxes
- Representations and Warranties
- Covenants of the Parties
- Conditions Precedent
- Environmental Matters and Indemnification
- Default; Remedies
- Risk Allocation; Limitation of Liability
- Dispute Resolution
- Miscellaneous Provisions
- Execution Block
1. 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:
• [Selling Entity], a [STATE OF ORGANIZATION] [ENTITY TYPE] (“Seller”); and
• [Buying Entity], a [STATE OF ORGANIZATION] [ENTITY TYPE] (“Buyer”).
Seller and Buyer are sometimes referred to individually as a “Party” and collectively as the “Parties.”
A. Seller is the fee simple owner of certain real property located in [COUNTY], Nebraska, commonly known as “[PROPERTY NAME/ADDRESS]”, together with all improvements, easements, rights, and appurtenances thereto (collectively, 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, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
2. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms not defined in this Section have the meanings assigned elsewhere in the Agreement.
“Affiliate” – Any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party.
“Applicable Law” – All federal, state, and local statutes, regulations, ordinances, and judicial or administrative orders applicable to the Property or either Party, including, without limitation, Nebraska real estate, environmental, zoning, and tax laws.
“Business Day” – Any day other than Saturday, Sunday, or a Nebraska-recognized legal holiday.
“Closing” – The consummation of the purchase and sale contemplated herein, to occur on the Closing Date.
“Closing Date” – [CLOSING DATE] or such other date as the Parties may mutually agree in writing.
“Environmental Laws” – All Applicable Laws relating to pollution, protection of the environment, hazardous substances, or human health and safety.
“Earnest Money” – The deposit defined in Section 3.2.
“Permitted Exceptions” – Those title matters approved by Buyer pursuant to Section 7.
“Survey” – An ALTA/NSPS Land Title Survey of the Property dated no earlier than [90] days prior to Closing.
“Title Company” – [TITLE COMPANY NAME], or any national title insurer acceptable to both Parties.
[Additional definitions may be added as required.]
3. PURCHASE AND SALE; EARNEST MONEY
3.1 Agreement to Purchase and Sell. Subject to the terms and conditions herein, Seller agrees to sell, assign, transfer, and convey to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right, title, and interest in and to the Property.
3.2 Earnest Money.
(a) Within [THREE (3)] Business Days after the Effective Date, Buyer shall deposit with Title Company, as escrow agent, the sum of [AMOUNT] U.S. Dollars (“Earnest Money”) by wire transfer of immediately available funds, to be held in an interest-bearing account pursuant to this Agreement.
(b) The Earnest Money (together with interest, if any) shall be:
(i) applied to the Purchase Price at Closing;
(ii) released to Seller as liquidated damages upon Buyer Default (Section 14.2); or
(iii) returned to Buyer upon Seller Default or failure of a Condition Precedent (Sections 12, 14).
[// GUIDANCE: Nebraska’s “Good Funds” requirements mandate that all funds delivered at Closing be in the form of wire transfer, cashier’s check, or other immediately available funds. See Neb. Rev. Stat. §§ 76-2,121 et seq. Verify compliance with current statutory thresholds.]
4. PROPERTY; PERMITTED EXCEPTIONS
4.1 Property Description. The Property includes:
(a) The land more particularly described on Exhibit A;
(b) All buildings, structures, fixtures, and improvements located thereon;
(c) All easements, rights, privileges, and appurtenances benefitting the land;
(d) All intangible rights relating exclusively to the Property, including warranties and permits, to the extent assignable.
4.2 Personal Property. [OPTIONAL – Include any furniture, fixtures, equipment, or intangible property to be conveyed.]
4.3 Permitted Exceptions. At Closing, title to the Property shall be subject only to the Permitted Exceptions, which shall not materially interfere with Buyer’s intended use of the Property.
5. PURCHASE PRICE; PAYMENT TERMS
5.1 Purchase Price. The purchase price for the Property is [PURCHASE PRICE] U.S. Dollars (the “Purchase Price”).
5.2 Payment of Purchase Price. Buyer shall pay the Purchase Price as follows:
(a) Credit for Earnest Money pursuant to Section 3.2; and
(b) The balance of the Purchase Price by wire transfer of immediately available funds to Title Company on the Closing Date.
5.3 Allocation. For tax reporting purposes, the Parties shall allocate the Purchase Price among real property, personal property, and any other categories as set forth on Exhibit B.
6. DUE DILIGENCE; INSPECTIONS; ZONING COMPLIANCE
6.1 Due Diligence Period. Buyer shall have [DUE DILIGENCE PERIOD] days after the Effective Date (“Due Diligence Period”) to conduct all inspections, investigations, and reviews deemed necessary by Buyer.
6.2 Access and Indemnity. Seller grants Buyer and its representatives reasonable access to the Property during the Due Diligence Period, subject to:
(a) At least [24] hours’ prior notice;
(b) Buyer’s restoration of any physical disturbance; and
(c) Buyer’s indemnity against claims arising from such entry, excluding Seller’s negligence or willful misconduct.
6.3 Zoning and Land Use. Within the Due Diligence Period, Buyer shall confirm that:
(a) The current zoning classification of the Property is [ZONING DESIGNATION];
(b) The Property’s current and intended use complies with all zoning ordinances and land-use regulations; and
(c) There are no pending or threatened zoning changes, special assessments, or condemnation proceedings affecting the Property.
[// GUIDANCE: Obtain a zoning compliance letter from the applicable Nebraska municipal authority where feasible.]
7. TITLE MATTERS
7.1 Title Commitment. Within [FIVE (5)] Business Days after the Effective Date, Seller shall cause Title Company to deliver to Buyer:
(a) A current commitment for an owner’s policy of title insurance (the “Title Commitment”); and
(b) Complete, legible copies of all exception documents.
7.2 Buyer’s Title Review. Buyer shall have [TEN (10)] Business Days after receipt of the last of the Title Commitment, exception documents, and Survey (the “Title Review Period”) to object in writing to any matters that, in Buyer’s discretion, are unacceptable (“Title Objections”).
7.3 Cure or Termination. Seller shall have until the earlier of Closing or [FIVE (5)] Business Days after receipt of Buyer’s Title Objections to elect to cure or remove the Title Objections. If Seller fails to cure, Buyer may:
(a) Waive the uncured Title Objections and proceed to Closing; or
(b) Terminate this Agreement and receive a refund of the Earnest Money.
7.4 Title Policy. At Closing, Title Company shall issue to Buyer an ALTA Owner’s Policy, in the amount of the Purchase Price, insuring fee simple title to the Property, subject only to the Permitted Exceptions (the “Title Policy”). Seller shall pay the premium for a standard coverage policy; extended coverage and endorsements shall be at Buyer’s cost.
8. CLOSING; DELIVERIES
8.1 Time and Place. Closing shall occur on the Closing Date through an escrow with the Title Company, or at such other time and place as the Parties may agree.
8.2 Seller’s Closing Deliveries. At Closing, Seller shall deliver:
(a) Special Warranty Deed conveying good and marketable fee simple title;
(b) Bill of Sale for any personal property;
(c) Assignment of leases, contracts, warranties, and permits, if applicable;
(d) FIRPTA affidavit and Nebraska Form 521 Real Estate Transfer Statement;
(e) Owner’s affidavit and gap indemnity required by Title Company;
(f) Evidence of Seller’s authority and good standing; and
(g) Any additional documents reasonably required by Title Company or Applicable Law.
8.3 Buyer’s Closing Deliveries. Buyer shall deliver:
(a) The Purchase Price (less credit for Earnest Money) by wire transfer;
(b) Evidence of Buyer’s authority and good standing; and
(c) Any other documents reasonably required by Title Company or Applicable Law.
8.4 Possession. Possession of the Property shall be delivered to Buyer upon Closing, subject only to the Permitted Exceptions and any post-Closing agreements expressly set forth herein.
9. PRORATIONS; CLOSING COSTS; TRANSFER TAXES
9.1 Prorations. The following items shall be prorated as of 11:59 p.m. on the day preceding the Closing Date:
(a) Real estate taxes based on the most recent tax bill;
(b) Utility charges, if applicable;
(c) Rents and operating expenses (if the Property is leased); and
(d) Any other items customarily prorated in Nebraska commercial transactions.
9.2 Closing Costs.
(a) Seller shall pay: (i) Nebraska documentary transfer tax; (ii) cost of deed preparation; (iii) title premium for standard coverage; and (iv) one-half of the escrow fee.
(b) Buyer shall pay: (i) extended coverage and endorsements; (ii) Survey; (iii) recording fees; and (iv) one-half of the escrow fee.
9.3 1031 Exchange. Either Party may structure the transaction as a like-kind exchange pursuant to Internal Revenue Code § 1031 at no additional cost or liability to the other Party.
10. REPRESENTATIONS AND WARRANTIES
10.1 Seller’s Representations and Warranties. As of the Effective Date and again as of Closing, Seller represents and warrants to Buyer that:
(a) Organization and Authority. Seller is duly organized, in good standing, and has full power and authority to enter into and perform this Agreement.
(b) Title. Seller owns good and marketable fee simple title to the Property, free and clear of all liens except the Permitted Exceptions, and has full right to convey such title to Buyer.
(c) Compliance with Laws. To Seller’s Knowledge, the Property is in material compliance with Applicable Laws, including Environmental Laws and zoning ordinances.
(d) Environmental. Except as disclosed on Schedule 10.1(d), Seller has not received written notice of any violation of Environmental Laws relating to the Property, nor of any release or threatened release of hazardous substances requiring remediation.
(e) Litigation. There is no pending or threatened litigation, condemnation, or administrative proceeding affecting the Property.
(f) Leases and Contracts. All leases and service contracts affecting the Property are listed on Schedule 10.1(f) and are in full force and effect.
(g) Foreign Person. Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code.
10.2 Buyer’s Representations and Warranties. Buyer represents and warrants to Seller that:
(a) Organization and Authority. Buyer is duly organized, in good standing, and has full power and authority to enter into and perform this Agreement.
(b) Funds. Buyer has, and at Closing will have, sufficient readily available funds to consummate the transaction.
(c) Consents. No consent or approval of any third party (other than those to be obtained by Buyer during the Due Diligence Period) is required for Buyer to perform its obligations hereunder.
10.3 Survival. The representations and warranties in this Section shall survive Closing for a period of [12] months, except for representations in Sections 10.1(b) and 10.1(d), which shall survive until the expiration of the applicable statute of limitations.
11. COVENANTS OF THE PARTIES
11.1 Seller’s Covenants. From the Effective Date until Closing, Seller shall:
(a) Operate and maintain the Property in substantially the same manner as prior to the Effective Date;
(b) Not enter into, modify, or terminate any lease or contract affecting the Property without Buyer’s prior written consent (such consent not to be unreasonably withheld);
(c) Maintain all existing insurance policies (or comparable coverage) in full force and effect; and
(d) Provide prompt notice to Buyer of any material event or change affecting the Property.
11.2 Buyer’s Covenants. Buyer shall:
(a) Conduct all inspections in a manner that does not unreasonably interfere with tenants or operations;
(b) Maintain commercially reasonable liability insurance covering its activities on the Property; and
(c) Indemnify Seller against mechanics’ and materialmen’s liens arising from Buyer’s inspections.
12. CONDITIONS PRECEDENT
12.1 Buyer’s Conditions. Buyer’s obligation to close is conditioned upon:
(a) Title Company’s commitment to issue the Title Policy;
(b) Accuracy of Seller’s representations and warranties;
(c) Seller’s performance of all covenants;
(d) Receipt and approval of any zoning confirmations or permits required for Buyer’s intended use;
(e) Satisfactory completion of Buyer’s due diligence; and
(f) Absence of a material adverse change to the Property.
12.2 Seller’s Conditions. Seller’s obligation to close is conditioned upon:
(a) Buyer’s delivery of the Purchase Price;
(b) Accuracy of Buyer’s representations and warranties; and
(c) Buyer’s performance of all covenants.
13. ENVIRONMENTAL MATTERS AND INDEMNIFICATION
13.1 Environmental Inspection. Buyer may conduct Phase I (and, if recommended, Phase II) environmental assessments during the Due Diligence Period.
13.2 Environmental Indemnity. Subject to Section 15 (Liability Cap), Seller shall indemnify, defend, and hold harmless Buyer and its Affiliates from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from:
(a) The presence or release of hazardous substances on, under, or migrating from the Property prior to Closing; or
(b) Any violation of Environmental Laws relating to the Property existing or occurring prior to Closing.
13.3 Survival. The obligations in this Section shall survive Closing for a period of [___] years, or the longest period permitted by Applicable Law, whichever is shorter.
[// GUIDANCE: Consider requiring an environmental insurance policy if the Property has known issues or historical industrial uses.]
14. DEFAULT; REMEDIES
14.1 Seller Default. If Seller fails to perform any material obligation and such failure is not cured within [FIVE (5)] Business Days after written notice, Buyer may:
(a) Terminate this Agreement and receive a prompt refund of the Earnest Money, plus reimbursement of Buyer’s documented out-of-pocket third-party costs (not to exceed [CAP]);
(b) Seek specific performance of this Agreement; or
(c) Pursue any other remedy at law or in equity, subject to Section 15.
14.2 Buyer Default. If Buyer fails to perform any material obligation and such failure is not cured within [FIVE (5)] Business Days after written notice, Seller may, as its sole and exclusive remedy:
(a) Retain the Earnest Money as liquidated damages, the Parties acknowledging that actual damages would be difficult to ascertain; or
(b) [OPTIONAL – Seller Specific Performance: Include if desired.]
[// GUIDANCE: Nebraska courts generally enforce liquidated damages provisions when the amount is reasonable in light of anticipated or actual harm and difficult-to-prove losses.]
15. RISK ALLOCATION; LIMITATION OF LIABILITY
15.1 Indemnification Procedures. A Party entitled to indemnification (“Indemnitee”) shall give prompt written notice to the indemnifying Party (“Indemnitor”) of any claim; failure to give timely notice shall not relieve Indemnitor except to the extent prejudiced. Indemnitor shall have the right to control the defense of any third-party claim, subject to Indemnitee’s approval of settlement.
15.2 Liability Cap. Except for (a) willful misconduct, (b) fraud, and (c) Seller’s environmental indemnity under Section 13, each Party’s aggregate liability under this Agreement shall not exceed [CAP AMOUNT OR “TBD”] U.S. Dollars.
15.3 Waiver of Consequential Damages. Notwithstanding any other provision, neither Party shall be liable to the other for lost profits, loss of business, or other consequential, special, or punitive damages.
15.4 Casualty and Condemnation. Prior to Closing, risk of loss or damage by fire or other casualty, or condemnation, shall remain with Seller. If a material portion of the Property is affected, Buyer may terminate this Agreement and receive a refund of the Earnest Money, or proceed to Closing with an assignment of insurance proceeds or condemnation awards.
16. DISPUTE RESOLUTION
16.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without regard to conflicts-of-law principles.
16.2 Forum Selection. The state courts located in [COUNTY], Nebraska (and, if applicable, the federal courts of the District of Nebraska) shall have exclusive jurisdiction over any suit, action, or proceeding arising out of or relating to this Agreement.
16.3 Arbitration. [OPTIONAL] Any dispute, controversy, or claim arising out of or relating to this Agreement may, upon mutual written agreement of the Parties, be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award may be entered in any court of competent jurisdiction.
16.4 Jury Trial Waiver. [OPTIONAL] EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF THIS AGREEMENT.
16.5 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 and injunctive relief without the necessity of posting bond.
17. MISCELLANEOUS PROVISIONS
17.1 Notices. All notices under this Agreement shall be in writing and deemed given upon (a) personal delivery, (b) receipted overnight courier, or (c) electronic mail with confirmation of receipt, addressed to the Parties at the addresses set forth below (or such other address as a Party may designate by notice).
17.2 Amendment and Waiver. No amendment or waiver of any provision shall be effective unless in writing and signed by the Party against whom enforcement is sought.
17.3 Assignment. Buyer may not assign its rights or delegate its duties without Seller’s prior written consent, except to an Affiliate or to a special-purpose entity formed solely for acquiring the Property, provided Buyer remains liable hereunder. Any other assignment in violation hereof is void.
17.4 Successors and Assigns. Subject to Section 17.3, this Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.
17.5 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to render it valid and enforceable.
17.6 Entire Agreement. This Agreement (including all exhibits and schedules) constitutes the entire agreement between the Parties regarding the subject matter and supersedes all prior understandings.
17.7 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which is deemed an original and all of which constitute one instrument. Signatures transmitted electronically (e.g., PDF, DocuSign) shall be deemed original signatures for all purposes.
17.8 Time of the Essence. Time is of the essence in the performance of each Party’s obligations herein.
17.9 Further Assurances. Each Party shall execute and deliver such additional documents and take such further actions as may be reasonably necessary to effectuate the purposes of this Agreement.
18. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
SELLER:
[SELLING ENTITY]
By: _________
Name: [NAME]
Title: [TITLE]
BUYER:
[BUYING ENTITY]
By: _________
Name: [NAME]
Title: [TITLE]
[NOTARY BLOCKS AS REQUIRED UNDER NEBRASKA LAW]
EXHIBITS AND SCHEDULES
Exhibit A – Legal Description of the Property
Exhibit B – Purchase Price Allocation
Schedule 10.1(d) – Environmental Disclosures
Schedule 10.1(f) – Leases and Contracts
[// GUIDANCE: Add additional exhibits (e.g., Form 521, survey requirements, zoning letter template) as appropriate.]
END OF DOCUMENT