Appendix B: Form of Purchase and Sale Agreement

• Author: Gregory M Stein - Michael D Goodwin - Morton P Fisher Jr
• Pages: 368-416

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.

AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (“Agree-

ment”) is made as of , 20 (“Contract Date”),

between (i) , a (“Seller”), and

(ii) , a (“Purchaser”).

ARTICLE 1

INTERPRETATION

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 2.2.2.1.

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