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PURCHASE AGREEMENT 12123: ALL CASH PURCHASE AGREEMENT FOR LUXURY HOTEL AND SPA LOCATED ON MIXED FEE AND GROUND LEASED PARCELS $99.95 |
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Key Features
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| Purchase Agreement Type | Purchase and Sale Agreement For A Luxury Hotel And Spa Flagged With A National Hotel Brand |
| Property Included | All Land And Buildings, All Permits And Licenses, And All Intangible Property Related To The Property, A Portion Owned in Fee By The Seller, A Portion Subject To A Ground Lease |
| Purchaser Due Diligence | Seller is Required to Furnish An Extensive List of Due Diligence Documents to the Purchaser Within A Specified Number of Days After the Effective Date of the Agreement For Due Diligence Review |
| Seller And Purchaser Representations And Warranties | The Agreement Contains An Extensive List of Reps and Warranties for the Seller And the Purchaser |
| As-Is Sale | Sale of Property As-Is, Subject To The Provisions Of The Agreement |
| Other Features | Customary Elements of a Real Estate Purchase Agreement Are Included, Including Proration of Taxes, Utilities, and Assignment of Leases and Property ContractsTo Purchaser, Etc. |
| Exhibits | Assignment And Assumption Of Ground Lease, Bill Of Sale, Assignment And Assumption Of Leases, Assignment And Assumption Of Operating Agreements, Licenses, Intangibles And Intellectual Property, Notice To Tenants, FIRPTA Certificate, Designation Agreement, and Tenant Estoppel Form |
| Number of Single Spaced Pages | 84 |
Quick Look
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made to be effective as of the ____________, 20__ (the "Effective Date"), by and between COMMERCIAL PROPERTY SELLER, a general partnership formed under the laws of _________ ("Seller"), having an office at _________________ and COMMERCIAL PROPERTY PURCHASER, L.L.C., a _________ limited liability company ("Purchaser"), having an office at ______________________.
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and on the conditions set forth in this Agreement, Seller agrees to sell and convey and Purchaser agrees to purchase the following:
(a) Fee simple ownership of that certain land more particularly described on Exhibit A-1 (the "Fee Component") and Seller’s leasehold interest under the Ground Lease (as defined below) in that certain land more particularly described on Exhibit A-2, each situated in _________, _________, and together with all and singular the rights and appurtenances pertaining to such land, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way (the property described in this clause (a) of Section 1.1 is referred to collectively as the "Land"). The term "Ground Lease" shall refer to that certain Lease dated as of ________, 19__, by and between _________, _________, as landlord, and _________________, as tenant, as amended by amendments dated as of _________, and ___________, and reflected in a Memorandum of Ground Lease dated as of ______________, 19__;
(b) the buildings, structures, fixtures and other improvements on the Land, including, without limitation, that certain hotel facility ("Hotel") having approximately _____ guest rooms, commonly known as "______________", and related facilities and improvements (collectively, the "Improvements");
(c) all tangible personal property upon the Land or within the Improvements, used in connection with the operation of the Land and the Improvements, but excluding those items described on Exhibit B (the property described in clause (c) of this Section 1.1 is referred to collectively as the "Personal Property");
(d) all of Seller’s right, title and interest in and to those leases (the "Leases") more fully described on Exhibit C (the "Lease Schedule");
(e) all of Seller’s right, title and interest in and to (i) all assignable contracts and agreements (collectively, the "Operating Agreements") relating to the upkeep, repair, maintenance or operation of the Land, Improvements or Personal Property which will extend beyond the date of "Closing" (as such term is defined in Section 4.1) and (ii) all assignable existing warranties and guaranties issued to Seller in connection with the Improvements or the Personal Property (the property described in this clause (e) of Section 1.1 is referred to collectively as the "Intangibles");
(f) all transferable consents, authorizations, variances or waivers, licenses, permits and approvals from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or instrumentality (collectively, the "Licenses"), including, without limitation, those with respect to use, utilities, building, fire, life safety, traffic and zoning (but excluding any alcoholic beverage licenses);
(g) all of Seller’s right, title and interest in and to all inventories of supplies used in connection with the operation of the Hotel, including, without limitation, paper goods, brochures, office supplies, unopened food and beverage inventory (subject to the payment required under Section 4.6 and excluding alcoholic beverages, which shall be transferred only in accordance with Section 5.8), chinaware, glassware, flatware, table linens, soap, gasoline, fuel oil, and other operational and guest supplies currently located at the Hotel, subject to depletions, replacements and additions in the ordinary course of operating the Hotel (provided that Seller shall maintain its normal replenishment and replacement expenditures for such inventories until the date of Closing), and subject to any applicable transfer and use restrictions set forth in the Operating Agreements or the Leases (collectively, the "Inventory");
(h) the books, records, files, guest registers, rental and reservation records, any customer or frequent guest lists of Seller, maintenance records and any plans, specifications and operating manuals of or held in connection with the operation and maintenance of the Hotel (collectively, the "Books"), exclusive of (i) original Books which Seller desires to retain, provided that Seller provides copies thereof to Purchaser, (ii) Seller’s income tax and accounting records, and (iii) any "Proprietary Materials" of _______________ ("Operator"), as defined in the Hotel Management Agreement (the "New HMA") attached to this Agreement as Exhibit O;
(i) the advance reservations and bookings for the Hotel, as the same may be amended, canceled and renewed (the "Reservations") and advance deposits made in respect thereof (the "Reservation Deposits"); and
(j) all of Seller’s right, title and interest in and to all intangible personal property relating solely to ownership and operation of the Land, Hotel and Improvements, including, without limitation, names related to the Hotel and all related goodwill and domain names, excepting, however, any Operator Names, Operator Symbols or other Proprietary Materials of Operator, all as defined in the New HMA. The property described in this clause (j) of Section 1.1 is referred to as the "Intellectual Property."
1.2 Property Defined. The property described in Section 1.1 is referred to collectively as the "Property."
1.3 Permitted Exceptions. The Property shall be conveyed subject to the matters which are, or are deemed to be, permitted exceptions pursuant to Article II (collectively, the "Permitted Exceptions").
1.4 Purchase Price. Seller shall sell and Purchaser shall purchase the Property for a total of ______________ MILLION DOLLARS ($_________) (the "Purchase Price"), as increased or decreased by prorations and adjustments provided for in this Agreement. Seller and Purchaser acknowledge and agree that (a) _____________ Dollars ($__________) of the Purchase Price is allocable to the Land and the Improvements and (b) _________ Dollars ($_______) of such figure is allocable to the Residential Development Parcel. Seller and Purchaser shall complete and sign a conveyance tax certificate required in connection with the transaction setting forth information consistent with the agreement set forth in clause (a).
1.5 Payment of Purchase Price. The Purchase Price, as increased or decreased by prorations and adjustments provided for in this Agreement and less the amount of the Deposit (as defined and payable by Purchaser in accordance with Section 6.1 below), shall be payable in full at Closing in cash by wire transfer of immediately available federal funds to a bank account designated by Pretty Good Title Insurance Corporation ("Title Company") in writing to Purchaser prior to the Closing. Said funds shall be so deposited at least one (1) business day prior to the date of Closing.
1.6 Delivery to Title Company. Upon mutual execution of this Agreement, the parties shall deposit an executed copy of this Agreement with Title Company and this Agreement shall (along with the escrow instructions described in Section 1.6 and such supplementary instructions not inconsistent with this Agreement as either party hereto may deliver to Title Company) serve as escrow instructions to Title Company for the consummation of the purchase and sale contemplated hereby. Seller and Purchaser agree to execute such additional escrow instructions as Title Company may reasonably require and which are not inconsistent with the provisions hereof; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control.
1.7 1031 Exchange. If any party hereto elects (the "Electing Party") to conduct a tax free exchange under Section 1031 of the Internal Revenue Code, as amended, then the other party hereto agrees to cooperate (the "Cooperating Party") with the Electing Party in conducting such tax free exchange under such Section 1031 of the Code relating to this transaction. In the event of such an election, the Electing Party agrees to indemnify, defend and hold the Cooperating Party harmless from and against any and all claims, demands, causes of action, liabilities, costs and expenses, including reasonable attorneys’ fees and costs of litigation, that the Cooperating Party may suffer or incur by reason of such exchange. Purchaser and Seller expressly reserve the right to assign their rights, but not their obligations, hereunder to a Qualified Intermediary as provided in IRC Reg. 1.1031(k)-1(g)(4) on or before the Closing Date. Each Cooperating Party agrees to cooperate, but at no cost, expense or risk to said Cooperating Party, and take any actions reasonably requested by the Electing Party to cause such exchange to be consummated and to qualify as a like kind exchange under such Section 1031 of the Code, including, but not limited to, (a) permitting this Agreement to be assigned to a Qualified Intermediary and (b) conveying the Property to, or at the direction of, the Qualified Intermediary. In no event, however, shall any such exchange extend, delay or otherwise adversely affect the Closing Date (except as contemplated in Section 4.1, below). The provisions of this Section shall survive the Closing. All references in this paragraph to tax-free exchange under Section 1031 of the Code shall include "reverse exchanges" as set forth in Revenue Procedure 2000-37, 2000-2 C.B. 308.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination; Commitment for Title Insurance. Purchaser has obtained from the Title Company an ALTA Commitment for Title Insurance dated _________ and issued under File No. __________ (the "Title Commitment") covering the Property. Purchaser shall have until the close of the Inspection Period (as defined below) to review the Title Commitment and at Closing to obtain from the Title Company an owner’s policy of title insurance in the full amount of the Purchase Price pursuant to Section 2.4.
2.2 Survey. The parties acknowledge that Seller has delivered to Purchaser and the Title Company Seller’s existing ALTA survey of the Property (the "Survey"). Purchaser may, at its sole cost and expense, update and recertify the Survey.
2.3 Title Objections; Cure of Title Objections. Purchaser acknowledges that any item contained in the Title Commitment or any matter shown on the Survey shall be deemed a Permitted Exception, provided that Seller agrees that, in any event, all monetary liens (other than liens for bonds and special assessments that are not yet due and payable) consisting of (A) any mortgage, security agreement or other encumbrance granted by Seller or expressly assumed by Seller, (B) any federal or state income tax liens against Seller, (C) any judgment liens against Seller and (D) any inchoate mechanics’ liens arising out of any work of improvement performed at Seller’s request and not subject to proration pursuant to this Agreement, as applicable, shall be removed at Seller’s sole cost and expense on or prior to the Closing Date and shall not be treated as Permitted Exceptions.
2.4 Conveyance of Title. At Closing, Seller shall convey and transfer to Purchaser such title to the Property as will enable the Title Company to issue to Purchaser an ALTA extended coverage owner’s policy of title insurance (the "Title Policy") covering the Property, in the full amount of the Purchase Price and in such form and with such endorsements as shall be agreed by Purchaser and Title Company prior to expiration of the Inspection Period. Notwithstanding anything contained herein to the contrary, the Property shall be conveyed subject to the following matters, which shall be deemed to be Permitted Exceptions:
(a) The terms of the Ground Lease;
(b) the rights of tenants, as tenant only, under the Leases;
(c) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided;
(d) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; and
(e) items appearing of record or shown on the Survey, general and specific plans and development permits, and, in either case, not objected to by Purchaser or waived or deemed waived by Purchaser in accordance with Sections 2.3 or 2.5.
In connection with issuance of the Title Policy, Seller shall deliver to Title Company customary certifications and affidavits to the Title Company, including certifications and affidavits relating to the status of leases and mechanics’ liens, but shall not be required to escrow any monies with the Title Company in connection therewith.
2.5 Pre-Closing "Gap" Title Defects. In the event that any matters of record are not identified in the Title Commitment, the Survey or by Purchaser during the Inspection Period or otherwise arise only following the close of the Inspection Period ("Intervening Title Matters"), such matters shall be treated as Permitted Title Exceptions for all purposes, unless Purchaser shall have furnished a notice to Seller of an objection to such Intervening Title Matters not later than the Closing Date setting forth the nature of the Intervening Title Matter in reasonable detail. In the event Purchaser shall so notify Seller of objections to Intervening Title Matters, Seller shall have the right, but not the obligation, to cure such objections. Seller shall notify Purchaser in writing prior to the earlier of (a) two business days following receipt of Purchaser’s notice of any objection or (b) the Closing whether Seller elects to attempt to cure such objections. If Seller elects to attempt to cure, and provided that Purchaser shall not have terminated this Agreement in accordance with Section 3.2, Seller shall have until the Closing to attempt to remove, satisfy or cure the same and for this purpose Seller shall be entitled to a reasonable adjournment of the Closing if additional time is required, but in no event shall the adjournment exceed thirty (30) days after the date for Closing set forth in Section 4.1. If Seller elects not to cure any objections to Intervening Title Matters specified in Purchaser’s notice, or if Seller is unable to effect a cure prior to the Closing (or any date to which the Closing has been adjourned), Purchaser shall have the following options: (i) to accept a conveyance of the Property subject to the Permitted Exceptions, specifically including any Intervening Title Matters objected to by Purchaser which Seller is unwilling or unable to cure, and without reduction of the Purchase Price; or (ii) to terminate this Agreement by sending written notice thereof to Seller, and upon delivery of such notice of termination, this Agreement shall terminate and thereafter neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. If Seller notifies Purchaser that Seller does not intend to attempt to cure any Intervening Title Matter objection; or if, having commenced attempts to cure any objection, Seller later notifies Purchaser that Seller will be unable to effect a cure thereof; Purchaser shall, prior to the Closing, notify Seller in writing whether Purchaser shall elect to accept the conveyance under clause (i) or to terminate this Agreement under clause (ii) of this Section 2.3. For the purposes of this Section 2.5, Seller shall be deemed to have effected a cure of a title objection if the Title Company is willing fully to insure over such matters by endorsement or otherwise, in form reasonably satisfactory to Purchaser and without the payment of any premium or charge other than premiums or charges Seller, in its discretion, shall undertake to bear.
(continued)
End of Excerpt
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