Appendix B: Form of Purchase and Sale Agreement

AuthorGregory M Stein - Michael D Goodwin - Morton P Fisher Jr
368 Appendices
Appendix B
Form of Purchase and Sale Agreement
Note: Remember that legal requirements vary from state to state and
that this document will probably need to be modified to comply with the
requirements of any particular jurisdiction.
ment”) is made as of , 20 (“Contract Date”),
between (i) , a (“Seller”), and
(ii) , a (“Purchaser”).
1.1 Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings indicated:
Accounting Firm: as defined in Section 10.11.
Action: any lawsuit, arbitration, governmental investigation, or other
legal proceeding.
Apportionment Time: 12:01 a.m. local time at the Property on the
Closing Date.
Assigned Contracts: as defined in Section 2.1.7.
Assignee: as defined in Section 11.11.
Assignment: as defined in Section 6.2.3.
Bill of Sale: as defined in Section 6.2.2.
Broker: __________.
Business Day: any Monday through Friday on which commercial
banks are authorized to do business and are not required by law or execu-
tive order to close in the State.
Closing: the consummation of the purchase and sale of the Property
as contemplated by this Agreement.
Closing Date: the date on which the Closing occurs.
Code: the Internal Revenue Code of 1986, as amended.
Confidential Materials: books, records, or files (whether in a printed
or electronic format) that consist of or contain any of the following: apprais-
als; strategic plans, budgets, forecasts, and similar forward-looking financial
information for the Property; internal analyses, reviews, and reports prepared
by Seller and/or any of its affiliates concerning the Property and any Tenants,
Licensees, potential tenants, and potential licensees at the Property; informa-
tion regarding the Property that is embedded in information concerning the
ste54861_10_app_365-516.indd 368 8/4/16 3:28 PM
Appendices 369
business, affairs, and/or property of any affiliate of Seller; information related
to the marketing of the Property for sale; submissions relating to obtaining
internal authorization for the sale of the Property by Seller or by any direct
or indirect owner of Seller; correspondence between Seller and any prospec-
tive purchaser of the Property, including any materials provided by any such
purchaser to Seller; attorney and accountant work product; attorney-client
privileged documents; internal communications among employees of Seller,
Manager, or any affiliate of Seller; and documents, correspondence, commu-
nications, and other materials related to any loan, equity investment or other
financing made for the benefit of Seller or any of its affiliates.
Confidentiality Agreement: the Confidentiality Agreement dated
________ ___, 20__, executed by __________ with respect to the Property.
Contract: any contract for services, maintenance or supplies, equip-
ment leases, utilities, commissions, or improvements, and any other con-
tract or agreement to which Seller or Manager is a party, relating to the use,
maintenance, operation, provisioning, equipping, improvement, leasing,
or management of the Property, and all amendments thereto, but exclud-
ing the Leases, the Licenses, the Existing Management Agreement, the Per-
mitted Exceptions, contracts with employees, and contracts that affect (in
addition to the Property) other properties owned by affiliates of Seller.
Contract Date: as defined in the preamble to this Agreement.
Damages: out of pocket damages, liabilities, losses, claims, costs,
and expenses (including reasonable attorneys’ fees and expenses). For the
avoidance of doubt, Damages shall exclude consequential and punitive
damages, except to the extent payable to a third party.
Deed: as defined in Section 6.2.1.
Deposit: as defined in Section
Due Diligence Period: as defined in Section 4.1.1.
EAT: as defined in Section 11.11.
Environmental Laws: all Legal Requirements relating to the protec-
tion of the environment or to human health, or regulating the manufacture,
use, or disposal of Hazardous Substances.
Escrow Agent: the Title Company, in its capacity as escrow agent
under this Agreement.
Exchange: as defined in Section 11.11.
Existing Management Agreement: the agreement existing as of the
Contract Date between Seller and Manager for the provision of property
management, leasing, construction management, and related services for
the Property.
Hazardous Substance: any pollutant, contaminant, or toxic, radio-
active, or otherwise hazardous substance, including petroleum, its deriv-
atives, by-products, and other hydrocarbons, asbestos, and toxic mold, in
each case as regulated under Environmental Laws.
Improvements: as defined in Section 2.1.2.
Inspection Activities: as defined in Section 4.1.2.
ste54861_10_app_365-516.indd 369 8/4/16 3:28 PM
370 Appendices
Intangible Property: as defined in Section 2.1.4.
Intermediary: as defined in Section 11.11.
Land: as defined in Section 2.1.1.
Land Records: the Land Records of __________.
Leases: as defined in Section 2.1.5.
Legal Requirement: any federal, state, local, or municipal constitu-
tion, law, statute, ordinance, rule, order, or regulation.
Licensees: the licensees under the Licenses.
Licenses: as defined in Section 2.1.6.
Manager: __________.
Material Adverse Effect: as defined in Section 9.2.
New Objection: as defined in Section 4.2.4.
Objections: as defined in Section 4.2.1.
Pending Claims: as defined in Section 7.1.1.
Permitted Exceptions: collectively, (i) the rights of Tenants and
Licensees under the Leases and Licenses, as tenants or licensees only, (ii)
any matters created or caused by Purchaser, and (iii) any matters approved
or deemed approved by Purchaser pursuant to Section 4.2.
Person: a natural person or any legal or governmental entity.
Personal Property: as defined in Section 2.1.3.
Preclosing: as defined in Section 6.1.3.
Property: as defined in Section 2.1.
Purchase Price: as defined in Section 2.2.1.
Purchaser: as defined in the preamble to this Agreement.
Purchaser Indemnified Parties: as defined in Section 7.1.1.
Purchaser Reimbursements: as defined in Section 10.7.
Purchaser Representatives: as defined in Section 4.1.2.
Purchaser’s Designee: as defined in Section 11.1.
Purchaser’s Knowledge: the actual current knowledge of the Persons
listed on Schedule 1.1A, without any obligation to review any files or make
inquiry of any other Person. No knowledge of any other Person shall be
imputed to Purchaser. References to specific individuals on Schedule 1.1A
shall not give rise to any personal liability on the part of such individuals.
Rents: as defined in Section 10.3.
Replacement Property: as defined in Section 11.11.
Seller: as defined in the preamble to this Agreement.
Seller Allocated Amounts: collectively, (i) with respect to any condem-
nation affecting the Property, (a) the costs (including reasonable attorneys’
fees) incurred by Seller in collecting any condemnation award, (b) any por-
tion of such award that is allocable to loss of use of the Property prior to the
Closing Date, and (c) the reasonable costs incurred by Seller in stabilizing
and/or restoring the Property following such condemnation; and (ii) with
respect to any casualty affecting the Property, (a) the costs (including rea-
sonable attorneys’ fees) incurred by Seller in settling any insurance claim
with respect to such casualty, (b) the proceeds of any rental loss, business
ste54861_10_app_365-516.indd 370 8/4/16 3:28 PM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT