EXHIBIT 10.37
Purchase and Sale Agreement between
CNL Retirement ER1, LP, as Buyer, and
Peabody Campus, LLC, as Seller,
relating to the Brooksby Village Continuing Care Retirement Community
- Peabody, Massachusetts
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL RETIREMENT ER1, LP,
a Delaware limited partnership
as BUYER
and
PEABODY CAMPUS, LLC,
a Maryland limited liability company,
as SELLER
Premises: Land within Brooksby Village,
a continuing care retirement community in Peabody, Massachusetts
(Tenant: Peabody Campus, LLC,
a Maryland limited liability company)
TABLE OF CONTENTS
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Page
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1. Definitions..............................................................................................1
2. Purchase and Sale of Premises............................................................................5
3. Purchase Price for Premises..............................................................................5
4. Closing Date.............................................................................................6
5. Conditions to Buyer's Obligation to Close................................................................6
6. Deliveries at Closing...................................................................................10
7. Closing and Other Costs, Adjustments and Prorations.....................................................12
8. Inspections.............................................................................................13
9. Title to Premises; State of Title to be Conveyed........................................................13
10. Escrow Agent............................................................................................13
11. Covenants, Representations and Warranties...............................................................15
12. Covenants of Seller Pending Closing.....................................................................17
13. Eminent Domain..........................................................................................18
14. Casualty................................................................................................18
15. Remedies Upon Default...................................................................................18
16. Notices.................................................................................................19
17. Brokerage Commissions...................................................................................20
18. Miscellaneous Provisions................................................................................20
Attachments:
Exhibit A - Description of Premises
Exhibit B - Intentionally Omitted
Exhibit C - Intentionally Omitted
Exhibit D - Intentionally Omitted
Exhibit E - Form of Assignment of Licenses, Permits, Plans, Contracts and Warranties
Exhibit F - Intentionally Omitted
Exhibit G - Form of Deed
REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between PEABODY
CAMPUS, LLC, a Maryland limited liability company, having a mailing address at
000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 ( "Seller"), and CNL RETIREMENT
ER1, LP, a Delaware limited partnership, having a mailing address at CNL Center
at City Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Peabody, Essex County,
Massachusetts; and
WHEREAS, Buyer is willing to buy such real property upon the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Bond Facility" shall mean a variable rate demand bond
facility involving a maximum principal obligation in an amount of
$57,385,000.00, pursuant to which BVI will finance the Purchase Deposit to be
paid to Seller pursuant to the Purchase Option, as well as other specified sums
and amounts relating to the development, construction and financing of the
Community, which shall be secured, inter alia, by a lien against the Premises
and by a lien against the Tenant's entire interests in the Project.
(b) "Bond Facility Documents" shall mean the documents evidencing
and securing the Bond Facility.
(c) "BVI" shall mean Brooksby Village, Inc., a Maryland non-stock
company which is the tenant under the Community Lease and the optionee under the
Purchase Option.
(d) "Closing" shall mean the consummation of the purchase and sale
of the Premises in accordance with the terms of this Agreement.
(e) "Community" shall mean the continuing care retirement
community known as Brooksby Village located within the Community Facilities.
(f) "Community Facilities" shall mean the complete Improvements
leased to BVI under and pursuant to the Community Lease.
(g) "Community Lease" shall mean that certain Brooksby Village
Retirement Community Amended and Restated Master Lease and Use Agreement dated
as of September 16, 1999 and entered into by and between Seller and BVI pursuant
to which BVI is the tenant of the Community Facilities, as amended as of
Closing.
(h) "Community Lease Non-Disturbance and Attornment Agreement"
shall have the meaning ascribed to it in Section 6(a) 6 of this Agreement.
(i) "Community Loan" shall mean the secured loan from BVI to
Tenant, relating to resident deposits paid to BVI, as set forth in and to be
evidenced and secured as provided in the Community Loan Documents.
(j) "Community Loan Documents" shall mean the documents evidencing
and securing the Community Loan, as amended as of Closing, and which shall
encumber only Tenant's leasehold and other (and not Buyer's) interests in or
relating to the Premises.
(k) "Community Management Agreement" shall mean the Management and
Marketing Agreement dated September 16, 1999 by and between BVI and SCS
Seabrook, LLC, as assigned to Community Manager and as amended as of Closing,
whereby the Community Manager is providing management and marketing services for
the Community.
(l) "Community Manager" shall mean Xxxxxxxx Retirement, in its
capacity as the manager under the Community Management Agreement.
(m) "Community Residents" shall residents of continuing care,
assisted living or skilled nursing units within the Community Facilities under
written residence and care or similar occupancy agreements with BVI.
(n) "Contracts" shall mean, with respect to the Premises, any
leases, operating agreements, or other contracts, other than the Lease and
related documents referred to herein, the Community Lease, the Purchase Option
Agreement and the Bond Facility Documents that would affect the Premises after
Closing and be binding upon Buyer.
(o) "Developer" shall mean Xxxxxxxx Retirement, in its capacity as
developer under the Development Agreement.
(p) "Development Agreement" shall mean that certain Brooksby
Village Amended and Restated Development Agreement to be made and executed
between Developer and Tenant, pursuant to which Developer will develop and
manage the development and construction of the Improvements, as amended as of
Closing.
(q) "Xxxxxxx Money Deposit" shall mean the deposit of $50,000.00
to be given by Buyer to Escrow Agent pursuant to Section 3(a) of this Agreement,
as well as all interest earned thereon in the interest-bearing money market
account in which Escrow Agent is required to place the Initial Xxxxxxx Money
Deposit.
(r) "Effective Date" of this Agreement shall as of September 1,
2002.
(s) "Xxxxxxxx Retirement" shall mean Xxxxxxxx Retirement
Communities, LLC, a Maryland limited liability company, which is the sole member
and parent company of the Tenant.
(t) "Escrow Agent" shall mean Chicago Title Insurance Company,
whose address is set forth in Section 16 below.
(u) "Guarantor" shall mean Xxxxxxxx Retirement, in its capacity as
the guarantor under the Guaranty.
(v) "Guaranty" shall mean the limited guaranty and indemnity
agreement relating to the Lease to be executed by the Guarantor and delivered to
Buyer at Closing.
(w) "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
(x) "Improvements" shall mean all improvements currently existing
or to be constructed on the Premises by Tenant as part of the Community
Facilities leased or to be leased to BVI, as more particularly described and
delineated in the Community Lease, the Development Agreement and the Bond
Facility Documents.
(y) "Inspection Period" shall mean that period of time starting on
the Effective Date of this Agreement and terminating on October 7, 2002.
(z) "Land Option" shall mean the option to purchase the Premises
granted to Tenant pursuant to the Lease.
(aa) "Lease" shall mean that certain Ground Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as lessee,
pursuant to which Tenant shall lease the Premises from Buyer.
(bb) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the ownership, use and
leasing of the Premises, including without limitation certificates of occupancy,
building permits, signage permits, site use approvals, zoning certificates,
environmental and land use permits and any and all necessary approvals from
state or local authorities other than such permits, operating permits,
certificates, licenses and approvals which are to be held by, or transferred to,
the Tenant or BVI in order to permit the Tenant to operate the Premises properly
in accordance with the terms of the Lease or to develop and construct the
Improvements.
(cc) "Permitted Exceptions" shall mean those items set forth in
the title commitment issued to Buyer by or on behalf of Title Company during the
Inspection Period (other than items customarily deleted or modified at closing
and items which Seller has agreed, in its reasonable discretion, to address in
response to Buyer's request or objections, including provision of appropriate
and available endorsements), and other matters to which Buyer has consented
during the Inspection Period or prior to Closing (including without limitation
those exceptions and appurtenances to title which are to be approved by Buyer
pursuant to Section 12(a) of this Agreement).
(dd) "Plans" shall mean the final "as-built" plans and
specifications for the existing and completed Improvements, which are to be
furnished by Seller to Buyer pursuant to Section 5(a)(2) of this Agreement.
(ee) "Premises" shall mean that certain parcel of real property
being more particularly described on Exhibit A attached hereto, together with
all tenements, hereditaments and appurtenances belonging or in any way
appertaining to such real property, and all of Seller's rights, title and
interest in and to (i) any and all property lying in the bed of any street, road
or avenue, open or proposed, in front of or adjoining such real property to the
center line thereof, (ii) any strips and gores of land adjacent to, abutting or
used in connection with such real property, and (iii) any easements and rights,
if any, inuring to the benefit of such real property or to Seller in connection
therewith, all other than and excluding, however, the Improvements.
(ff) "Project" shall mean all phases, including those currently
existing and still to be constructed, of that certain continuing care retirement
community located on the Premises.
(gg) "Purchase Option" shall mean the option to purchase the
Project as granted to BVI pursuant to the Purchase Option Agreement.
(hh) "Purchase Option Agreement" shall mean the Purchase Option
Agreement to be entered into by and between Tenant and BVI pursuant to which BVI
has been granted an option to purchase certain "Property" as described therein,
including the Improvements and interests in the Premises.
(ii) "Purchase Option Deposit" shall mean the "Purchase Deposit"
as defined in the Purchase Option Agreement.
(jj) "Purchase Option Mortgage" shall mean the mortgage granted by
Seller to BVI in order to secure Seller's obligation, under certain conditions,
to refund the Purchase Option Deposit to BVI.
(kk) "Purchase Price" shall mean SEVENTEEN MILLION THREE HUNDRED
EIGHTY-THREE THOUSAND SEVEN HUNDRED EIGHTY-THREE AND 78/100 DOLLARS
($17,383,783.78).
(ll) "Seller's Reimbursement" shall mean the fixed sum of
$80,000.00, to be credited by Seller to Buyer at Closing in reimbursement of
Buyer's third-party inspection, review costs and other acquisition costs.
(mm) "Tenant" shall mean Seller in its capacity as tenant under
the Lease.
(nn) "Title Company" shall mean Chicago Title Insurance Company,
which shall issue the owner's policy of title insurance required hereunder by
and through its agent.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises from Seller.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) Xxxxxxx Money Deposit. Not later than five (5) days following
the date on which Buyer shall receive a counterpart of this Agreement fully
executed by Buyer (or the closing date, whichever is sooner), Seller and Escrow
Agent, Buyer shall deposit with Escrow Agent the Xxxxxxx Money Deposit
hereunder, to be held and disbursed in accordance with the terms of this
Agreement.
(b) Xxxxxxx Money Deposit. After clearance of funds, Escrow Agent
shall hold the Xxxxxxx Money Deposit in an interest bearing money market account
at a federally insured financial institution reasonably acceptable to Buyer and
Escrow Agent, and interest earned thereon shall be reported under the United
States Taxpayer Identification Number (Applied For and to be provided upon
receipt) of Buyer. All interest earned on the Xxxxxxx Money Deposit, or any
portion thereof, shall be deemed to constitute a portion of the Xxxxxxx Money
Deposit and shall be disbursed in accordance with the terms of this Agreement.
The Xxxxxxx Money Deposit shall be credited to the cash due from Buyer at
Closing.
(c) Balance of Purchase Price. The balance of the Purchase Price,
less any apportionments set forth in Section 7 hereof and interest earned on the
Xxxxxxx Money Deposit, shall be paid in full by Buyer at the Closing by wire
transfer of immediately available federal funds, as Seller shall direct.
4. Closing Date. The Closing shall take place by on or before October
31, 2002 (the "Closing Date"), on an earlier date specified by Buyer on not less
than five (5) business days prior written notice to Seller, or such other date
as is mutually agreeable to Buyer and Seller, at the offices of Escrow Agent in
a national business unit office of Escrow Agent at such time as is mutually
acceptable to Buyer and Seller or at such other location agreed to by Buyer and
Seller.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) Within Five Business Days following the Effective Date of this
Agreement: Seller shall deliver, or have delivered, to Buyer (at no cost to
Buyer) or shall make available to Buyer at either Seller's principal place of
business or at the Premises, and, upon Buyer's request, shall deliver copies of:
(1) Any and all tests, surveys, examinations, plans,
appraisals, permits, licenses, environmental studies or reports and other
studies or investigations regarding the Premises which the Seller may have in
its possession or control;
(2) Final "as-built" Plans for the existing Improvements;
(3) All Permits, including without limitation, a certificate
of occupancy and an operating permit or license for the use and occupancy of the
Premises by Tenant.
(4) Detailed site plans reflecting and differentiating all
existing and proposed Improvements within the Project.
(5) All existing documents between Seller, BVI and/or
Community Manager which the Premises will be subject to as of Closing and which
will be binding upon Buyer.
(b) Within the Inspection Period:
(1) Buyer shall have obtained and approved a commitment from
the Title Company for an owner's title insurance policy (ALTA form) with respect
to the Premises, naming Buyer as the Proposed Insured in the amount of the
Purchase Price (the "Title Commitment"), together with the following:
(i) All exceptions and appurtenances to title referred
to in the Title Commitment;
(ii) All proposed exceptions and appurtenances to title
which are intended to be of record as of the Closing Date, other than those
exceptions and appurtenances to title which are to be approved by Buyer pursuant
to Section 12(a)Error! Reference source not found. of this Agreement;
(iii) All covenants, restrictions and other
encumbrances, if any, which Seller desires that the Lease establish of record
for the benefit of Tenant, whether affecting the Premises, the remainder of the
project or center in which the Premises are located or any other property;
(iv) Evidence that any such covenants and restrictions
for the benefit of Tenant which encumber property other than the Premises are
not subject to extinguishment (e.g., by the foreclosure of any superior lien on
the property encumbered thereby) and, if permitted by applicable law, the Title
Commitment shall insure the same;
(v) A copy of the most recent tax xxxx (and paid receipt
therefor) with respect to ad valorem real property taxes and assessments levied
or assessed with respect to the Premises; and
(2) A current letter or certificate from an appropriate municipal,
county or other governmental representative confirming the zoning classification
for the Premises, that the use and operation of the Premises for Tenant's
proposed use is in compliance with the applicable zoning ordinance, and a final
recorded plat approved by the applicable governmental authority or other
acceptable evidence confirming that the Premises are a legally subdivided parcel
or are legally subdivided parcels;
(3) Buyer shall have approved the zoning of the Premises and its
compliance with applicable zoning and subdivision laws, including without
limitation the documents which Seller is required to furnish Buyer pursuant to
Section 5(a) above.
(4) Buyer and Tenant shall have mutually agreed upon all of the
terms and conditions of the Lease to be entered into at Closing. In connection
therewith, Buyer and Tenant shall, during the Inspection Period, negotiate the
terms and provisions of the Lease on the basis of (but shall in no way be bound
by) the form of Lease attached hereto as Exhibit D, and shall act in a
commercially reasonable manner in such negotiations. Notwithstanding the
foregoing, however, the final negotiated Lease to be executed at Closing shall
in any event require (i) an initial term of ten (10) years commencing with the
Closing Date, (ii) two (2) five (5) year renewal options, (iii) that the
Premises be used and occupied by Tenant only as and for an continuing care
retirement community and related ancillary uses as contemplated under the
Community Lease, and (iv) that the annual minimum rental rate payable by Tenant
during the term of the Lease shall be fifteen percent (15%) of the Purchase
Price.
(5) Buyer and Seller shall have mutually agreed on the form of the
Guaranty and other documents to be executed by Buyer as contemplated hereunder
in connection with the Bond Facility and Community Lease.
(6) Buyer shall have received evidence that legally sufficient
parking is available on the Premises without the benefit of any parking
easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
(7) Buyer shall have obtained and approved an appraisal of the
Premises.
(8) Buyer shall have obtained and approved an environmental
assessment of the Premises.
(9) Buyer shall have obtained and approved an acceptable, updated
"as-built" survey of the Premises.
(10) Buyer and Tenant shall have approved the Plans which Seller
is required to furnish to Buyer pursuant to Section 5(a) above.
(11) Buyer shall have received informational copies of any
existing architects or engineer's certificates relating to the Project in
Seller's possession or control, or similar due diligence information provided in
connection with the Bond Facility.
(12) The transaction contemplated hereby shall have been approved
by the Board of Directors of CNL Retirement Properties, Inc. ("CNL Parent").
(13) Buyer shall have approved the Permits, warranties and
guaranties copies of which Seller is required to furnish to Buyer pursuant to
Section 5(a) above, the originals of which shall be delivered to Buyer at the
Closing.
(14) Buyer shall have otherwise determined, in its sole and
absolute discretion, that the Premises are satisfactory to Buyer.
(c) On or before the Closing Date:
(1) Seller shall be, and at the time of Closing shall continue to
be, the owner of the fee simple interest in the Premises, free from all liens,
encumbrances, restrictions, rights-of-way and other matters, excepting only the
Permitted Exceptions and any other matter consented to in writing by Buyer
pursuant to Section 12(a) hereof.
(2) The representations and warranties of Seller set forth in
Section 11 hereof shall be true, correct and complete in all material respects
on and as of the Closing Date.
(3) Neither Seller, BVI nor Xxxxxxxx shall, at any time during the
term of this Agreement, file or have filed against it a petition seeking relief
under the bankruptcy or other similar laws of the United States or any state
thereof.
(4) Buyer shall have been provided with, and shall have approved
in its reasonable discretion (not to be unreasonably withheld), complete copies
of the relevant Bond Facility Documents, Community Lease and all amendments,
Community Loan Documents, Community Management Agreement, Development Agreement,
Purchase Option Agreement and Purchase Option Mortgage.
(5) Guarantor shall have duly executed and delivered original
counterparts of the Guaranty, as well as related documentation as described and
provided therein to Buyer.
(6) BVI shall have obtained the Bond Facility and the relevant
parties shall have duly executed and delivered (and Seller shall have provided
to Buyer fully signed counterparts of) the Bond Facility Documents, and the Bond
Facility shall be in full force and effect and in good standing.
(7) Tenant and BVI shall have duly executed and delivered a true
and complete copy of the Community Lease to Buyer and the Community Lease shall
be in full force and effect and in good standing.
(8) Community Manager and BVI shall delivered a true and complete
copy of the Community Management Agreement to Buyer and the Community Management
Agreement shall be in full force and effect and in good standing.
(9) Developer and Tenant shall have duly executed and delivered an
original counterpart of the Development Agreement to Buyer and the Development
Agreement shall be in full force and effect and in good standing.
(10) BVI and Seller shall have provided to Buyer true and complete
copies of the Community Loan Documents and the Community Loan shall be properly
funded, in full force and effect and in good standing.
(11) The environmental assessment approved by Buyer during the
Inspection Period shall continue to accurately reflect the environmental
condition of the Premises.
(12) Buyer shall have received the Title Commitment "marked-up"
and effectively dated as of the Closing, deleting all requirements thereunder so
as to obligate the Title Company unconditionally to issue to Buyer an original
owner's policy of title insurance in the amount of the Purchase Price subject
only to the Permitted Exceptions.
(13) Title Company shall deliver to Buyer a "closing protection"
or "insured closing" letter, evidencing the authority of any agent of Title
Company which conducts the Closing and issues the Buyer's owner's policy of
title insurance for or on behalf of Title Company.
If the foregoing contingencies as set forth in sub-Sections (a) or (b) of this
Section 5 are not satisfied within the respective time periods set forth above,
then in addition to any rights afforded by Section 15 of this Agreement, Buyer
shall be entitled to terminate this Agreement by delivering written notice
thereof to Seller and Escrow Agent in accordance with and subject to the
provisions of Section 10(b) below, whereupon the Xxxxxxx Money Deposit and all
interest earned thereon shall be returned to Buyer and this Agreement shall
terminate and become null and void and all parties hereto shall be relieved of
all obligations hereunder. If the contingencies set forth in sub-Section (c) of
this Section 5 are not satisfied by the Closing Date, then in such event it
shall be treated as though Seller were in default hereunder for the limited
purpose of allowing Buyer to exercise its limited remedies as afforded by
Section 15 of this Agreement.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Owner's Affidavit" or other acceptable
evidence attesting to the absence of liens, rights of parties in possession,
other than Tenant, BVI and Community Residents (and existing commercial service
tenants within the Community, the names and interests of which shall be
disclosed to Buyer in writing prior to Closing), and other encumbrances other
than the Permitted Exceptions, so as to enable Title Company to delete the
"standard" exceptions for such matters from Buyer's owner's policy of title
insurance and otherwise insure any "gap" period occurring between the Closing
and the recordation of the closing documents;
(2) A duly executed Deed of conveyance with respect to the
Premises subject to no exceptions other than the Permitted Exceptions, in
substantially the form attached as Exhibit G, or as otherwise approved by Buyer,
Seller and the Title Company and revised as needed to conform to the
requirements of state law for the state in which the Premises are located;
(3) An Assignment of Licenses, Permits, Plans, Contracts and
Warranties with respect to the Premises in substantially the form attached as
Exhibit E, or as otherwise approved by Buyer and Seller, together with copies of
the documents assigned thereby (as request by Buyer), assigning and/or reserving
unto the Tenant, however, (i) the right to enforce the same during the term of
the Lease; (ii) all construction, development and operating licenses necessary
for Tenant or BVI to retain for proper licensing, development, leasing and
operation of the Community Facilities as contemplated hereunder and under the
Ground Lease; and (iii) any licenses, permits, plans, contracts and warranties
necessary for Tenant to permit and construct the Improvements;
(4) Two (2) counterparts of the Lease duly executed by Tenant;
(5) Three (3) signed counterparts of the closing statement;
(6) Two (2) counterparts of a release and attornment agreement
between Buyer and BVI, in form reasonably acceptable to both parties, whereby
BVI will release its existing leasehold or other interests in the Premises (but
not the related rights relating to the Premises as derived under the Community
Lease, or Community Loan Documents) and whereby BVI agrees that it will attorn
to Buyer and Buyer agrees to recognize BVI as its tenant in the event that the
Lease is terminated, and certain related terms and provisions relating to the
amounts funded or which would have been funded under the Community Loan (the
"Community Lease Non-Disturbance and Attornment Agreement");
(7) A Tri-Party Agreement between Buyer, CNL Parent and the
secured party(ies) under the Bond Facility Documents whereby in consideration of
Buyer's subordination of its interest in the Premises to those of the secured
party the secured party will provide the Buyer and/or CNL Parent with certain
rights and remedies in the event of a default under the Bond Facility;
(8) A multi-party Agreement between Buyer (as ground
landlord), Seller (as ground tenant) and BVI whereby in consideration of BVI
will provide the Buyer and/or CNL Parent with certain rights and remedies in the
event of a default thereunder or under the Community Loan;
(9) A form of Developer SNDA in form reasonably acceptable to
Buyer pursuant to which the Developer agrees in favor of Buyer to perform under
the Development Agreement in the event of a default by Tenant thereunder and/or
under the Lease;
(10) An appropriate FIRPTA Affidavit or Certificate evidencing
that Seller is not a foreign person or entity under Section 1445(f)(3) of the
Internal Revenue Code, as amended;
(11) All certificates of insurance, insuring Buyer as the
owner of the Premises, which are required by the Lease to be furnished by the
Tenant to the landlord;
(12) An opinion from Seller's and Xxxxxxxx'x counsel on
matters and in the form reasonably satisfactory to Buyer and relating to due
organization and good standing of Seller and Xxxxxxxx, the due authorization,
execution and delivery of the closing documents delivered by Seller and Xxxxxxxx
and such other related parties involved in the transaction as Buyer may
reasonably require, and the enforceability of the Lease and related documents
against Tenant and the Guaranty and other Xxxxxxxx documents against Xxxxxxxx;
(13) Certified copies of applicable resolutions and
certificates of incumbency with respect to the Seller/Tenant and such other
related parties involved in the transaction as Buyer may reasonably require;
(14) A certificate of a duly authorized officer of the
managing member of Seller confirming the continued truth and accuracy of the
representations and warranties of the Seller made in this Agreement; and
(15) Such other closing documents as are reasonably necessary
and proper in order to consummate the transaction contemplated by this
Agreement, including those (if any) required to be delivered by Seller pursuant
to Section 5(d) above.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions, prorations,
and credits provided for herein;
(2)Three (3) duly executed counterparts of the closing
statement;
(3) Two (2) counterparts of the Lease duly executed by Buyer;
(4) An acknowledgement by Buyer and BVI reflecting the
relative priority of the Community Loan Documents;
(5) An acknowledgement by Buyer and BVI reflecting the
relative priority of the Purchase Option Agreement;
(6) An acknowledgement by Buyer and BVI reflecting the
relative priority of the Purchase Option Mortgage;
(7) If necessary, a non-recourse mortgage joinder by and in a
form reasonably acceptable to Buyer to the mortgage securing the Bond Facility
subjecting the Premises to the lien thereof; and
(8) Appropriate execution counterparts signed by Buyer (and
CNL Parent) of the documents to which they are party which are being delivered
pursuant to Section 6(a) above.
7. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all of
which shall be credited against, and shall reduce dollar-for-dollar, the
Purchase Price payable to Seller at the Closing: the usual and customary costs
and expenses set forth in a settlement statement with respect to a conveyance of
this nature (excluding only those expenses specifically described below as the
responsibility of Buyer) including without limitation (i) all real estate
conveyance taxes and other transfer taxes, if any, imposed by state or local
authorities (including those transfer taxes customarily paid by a grantee) and
all recording charges; (ii) costs of removing any lien, assessment or
encumbrance required to be discharged hereunder in order to convey title to the
Premises as herein provided, including, without limitation, any prepayment
penalties or fees incurred in connection therewith; (iii) the cost of the
owner's policy of title insurance (ALTA Form, including any additional premiums
to delete the "standard" exceptions for parties in possession, matters of survey
and construction lien claims, and to issue such Endorsements as Buyer may
request provided the same are permitted by law and are customary in similar
commercial transactions); (iv) legal fees and expenses of Seller; (v) all fees,
if any, for the transfer by Seller to Buyer of any relevant warranties,
guaranties or similar protections relating to the Premises, to the extent
assignable; and (vi) Seller's Reimbursement to be credited to Buyer at Closing
as reimbursement for Buyer's third-party inspection, review and other
acquisition costs.
(b) The Buyer shall be charged with the following items in
addition to the Purchase Price payable to Seller at Closing: (i) fees and
expenses of Buyer's counsel; (ii) recording costs for the deed; and (iii)
Buyer's third-party inspection, review and other acquisition costs to the extent
the same exceed the Seller's Reimbursement and are not otherwise specifically to
be paid by Seller pursuant to the terms of this Agreement.
(c) As the Lease is to be entered into between Buyer and Tenant
effective as of the Closing Date, it shall not be necessary for rent or any
other charges payable under the Lease to be prorated at Closing, and all rent
and other charges payable under the Lease shall be the property of Buyer.
(d) Taxes, assessments and other charges shall
not be prorated as of Closing, as Seller shall be responsible for such matters
relating to the period prior to Closing, and Tenant shall be responsible for
such matters from and after Closing. Certified, confirmed and ratified special
assessments liens as of the Closing Date are to be paid by Seller. Seller shall
also pay and be responsible for any "rollback" taxes or retroactively assessed
taxes which arise out of or relate to any prior use of the Premises or any
improper or inadequate assessment of the Premises for the period prior to the
Closing, which obligation shall expressly survive the Closing.
8. Inspections. Subject to the rights of any tenant or other party
lawfully in occupancy, Buyer through its agents, employees and independent
contractors shall have the right from time to time prior to the Closing Date,
upon prior notice to Seller, to enter the Premises for the purpose of inspecting
the same and performing environmental and other tests thereon. Buyer shall
indemnify and hold harmless Seller and its contractors, agents, employees and
affiliates from and against any claims, losses, damages and costs arising out of
any inspection of and testing at the Premises by Buyer, its agents and
representatives. Buyer shall not, and shall not permit its agents or
representatives to, disrupt Seller's, Developer's, the Community Manager's or
the Community Residents' or the commercial service tenants' activities at the
Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing,
Buyer shall receive fee simple title to the Premises free from all liens,
encumbrances, restrictions, rights-of-way and other matters, excepting only the
Permitted Exceptions and any other matter consented to in writing by Buyer
pursuant to Section 12(a) hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept the escrow
contemplated herein. The Xxxxxxx Money Deposit shall be held by the Escrow
Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the Xxxxxxx Money Deposit shall be
held by Escrow Agent in an account meeting the requirements of Section 3(c)
above, and shall not be commingled with any funds of the Escrow Agent or others.
Escrow Agent shall promptly advise Seller and Buyer that the Xxxxxxx Money
Deposit is made and the account number under which it has been deposited
following clearance of funds.
(b) The Escrow Agent shall deliver the Xxxxxxx Money Deposit to
Seller or to Buyer, as the case may be, under the following conditions:
(1) To Buyer upon receipt of notice of termination of this
Agreement by Buyer at any time prior to the expiration of the Inspection Period.
(2) To Seller on the Closing Date, provided Closing shall
occur pursuant to the Agreement.
(3) To Seller upon receipt of written demand therefor
("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section 10(c) of this Agreement nor thereafter, if the Escrow
Agent shall have received a "Notice of Objection" (as hereinafter defined) from
Buyer within such ten (10) day period.
(4) To Buyer upon receipt of written demand therefor ("Buyer's
Demand for Deposit") stating that this Agreement has been terminated in
accordance with the provisions hereof for any reason other than as provided in
Section 10(b)(1) above, or that Seller has defaulted in the performance of any
of Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such demand to Seller in accordance with the provisions of Section
10(c) of this Agreement nor thereafter, if the Escrow Agent shall have received
a Notice of Objection from Seller within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section 16 of this Agreement. The other party shall have the right to object
to the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section 16 of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section 10(b) of this Agreement.
Such notice shall set forth the basis for objecting to the delivery of the
Deposit. Upon receipt of a Notice of Objection, the Escrow Agent shall promptly
send a copy thereof to the party who sent the written demand.
(d) In the event the Escrow Agent shall have received the Notice
of Objection within the time periods prescribed in Section 10(b) of this
Agreement, the Escrow Agent shall continue to hold the Xxxxxxx Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Xxxxxxx Money Deposit, in which case the
Escrow Agent shall then disburse the Xxxxxxx Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall deliver the Xxxxxxx Money Deposit to the
clerk of the court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the Escrow
Agent's option, elect in order to terminate the Escrow Agent's duties including,
but not limited to, depositing the Xxxxxxx Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
(e) The duties of the Escrow Agent are only as herein specifically
provided, and Escrow Agent shall incur no liability whatever except for willful
misconduct or gross negligence as long as the Escrow Agent has acted in good
faith. The Seller and Buyer each release the Escrow Agent from any act done or
omitted to be done by the Escrow Agent in good faith in the performance of its
duties hereunder.
(f) Upon making delivery of the Xxxxxxx Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
(g) The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Xxxxxxx Money Deposit in escrow, pursuant to the
provisions of this Agreement.
11. Covenants, Representations and Warranties. (a) In order to induce
Buyer to enter into this Agreement and purchase the Premises, Seller makes the
following covenants, agreements, representations and warranties:
(1) Seller has obtained all necessary authorizations and
consents to enable it to execute and deliver this Agreement and to consummate
the transaction contemplated hereby, including without limitation all
authorizations and consents required to be obtained from governmental
authorities during the course of, and upon completion of, construction of the
Improvements (other than building permits and similar final construction permits
for the Improvements not yet under construction, which Seller has no reason to
believe will not be available in the ordinary course when needed).
(2) Seller holds fee simple title to the Premises, free of all
liens, assessments and encumbrances except for the Permitted Exceptions, and
liens and encumbrances which will be paid and discharged or otherwise released
at or prior to the Closing.
(3) Seller has no knowledge of any condition or state of facts
which would preclude, limit or restrict the business operations contemplated,
pursuant to the terms of the Lease, to be conducted by Tenant at the Premises.
(4) Except as set forth in the Permitted Exceptions or as
provided to Buyer within thirty (30) days of the Effective Date of this
Agreement, or ten (10) days prior to the end of the Inspection Period or ten
(10) days prior to Closing, whichever is earlier, there are no contracts or
obligations affecting the Premises to which Buyer will be bound upon Closing.
(5) To Seller's knowledge, the Premises and the proposed use
thereof by Tenant and the condition thereof do not violate in any material
respect any applicable deed restrictions, zoning or subdivision regulations,
urban redevelopment plans, local, state or federal environmental law or
regulation or any building code or fire code applicable to the Premises
("Applicable Laws and Restrictions"), and are not designated by any governmental
agency to be in a flood plain area. Seller has, on or before the Effective Date,
provided written notice to Buyer of any continuing, material violations of
Applicable Laws and Restrictions known to Seller.
(6) As of the Closing Date (i) there shall exist no event
which, with the giving of notice or the passage of time or both, currently would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
(7) There is no pending or, to Seller's knowledge, threatened
litigation or other proceeding affecting the title to or the use or operation of
the Premises.
(8) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
(9) To Seller's knowledge, there are no federal, state, county
or municipal plans to restrict or change access from any highway or road to the
Premises.
(10) The Premises (other than appurtenant easement areas) are
a separate parcel for real estate tax assessment purposes.
(11) All of the financial data regarding the construction,
ownership and operation of the Premises that Seller has provided to Buyer is
true, complete and correct.
(12) To the best of Seller's knowledge the Project, including,
without limitation, the completed Improvements have been constructed in
accordance with (i) the Plans and (ii) applicable building codes, laws and
regulations in a good, substantial and workmanlike manner.
(13) (a) No Hazardous Materials are or will be stored,
treated, disposed of or incorporated into, on or around the Premises in
violation of any applicable statutes, ordinances or regulations; (b) the
Premises are in material compliance with all applicable environmental, health
and safety requirements; (c) any business currently operated on the Premises has
disposed of its waste in accordance with all applicable statutes, ordinances and
regulations; (d) Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations; and (e) to the best of Seller's knowledge and belief
the environmental reports provided to Buyer during the Inspection Period
accurately reflect the status of the Premises in regard to any potential
contamination of the Premises relating to Hazardous Materials and prior uses of
the Premises involving Hazardous Materials.
(14) Seller, Brooksby, Manager and Community Manager, as
applicable, have operated the Improvements in compliance with all applicable
federal and state laws and regulations, including, but not limited to, Medicare
and Medicaid laws and regulations.
(15) Seller specifically acknowledges and understands that
where Seller knows of any fact(s) materially affecting the value or desirability
of the Premises, and where such fact(s) relate(s) to the Premises specifically
and not to economic conditions generally (and are not readily apparent from due
diligence materials which have been delivered to Buyer), and whether said
fact(s) is/are readily observable or not, Seller hereby assumes and accepts a
duty to disclose said fact(s) to Buyer. Seller warrants that, other than as may
be disclosed in the foregoing representations and warranties, Seller has no
knowledge of any other fact(s) specifically relating to and materially affecting
the value or desirability of the Premises whether or not said fact(s) is/are
readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and, except those made in
Section 11.(a)(2) of this Agreement, shall survive the Closing Date.
(b) In order to induce Seller to enter into this Agreement and to
induce Seller to sell the Premises, Buyer makes the following covenants,
agreements, representations and warranties, all of which shall survive the
Closing and the purchase and sale of the Premises:
(1) Buyer is a corporation duly organized and validly existing
and in good standing under the laws of the State of Florida. Buyer has all
requisite power and authority under the laws of the State of Florida and its
charter documents to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(2) Buyer has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and upon the execution
and delivery hereof, this Agreement shall constitute the valid and binding
agreement of Buyer.
12. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon Buyer or its interests in the Premises
subsequent to Closing, nor grant or permit the granting of any easements or
licenses affecting the Premises, nor take or permit any legal action in
connection with the Premises which will affect Buyer's title to the Premises,
nor enter into or consent to any leases of space in the Premises (other than
amendments to the Community Lease to incorporate additional phases of the
Project into the Community Lease, or additional leases for commercial services
for Community Residents on terms comparable to existing commercial services
leases) without the prior written consent of Buyer, which shall not be
unreasonably withheld or delayed, and if denied shall be accompanied by a
reasonably detailed explanation of the reason for such denial. Buyer shall
promptly provide, and the Lease will require Buyer to provide, on conditions
reasonably acceptable to Buyer, all consents and approvals necessary for the
orderly and efficient development and construction of the remaining Improvements
upon the Premises, including subjecting the Premises to easements or to dedicate
parcels required by governmental or quasi-governmental authorities as reasonably
approved by Buyer as being necessary for the orderly development of the Premises
as contemplated under the Lease.
(b) Seller shall within two (2) business days following receipt
thereof (or the day of receipt if received the day prior to the Closing Date)
provide Buyer with copies of any letters regarding, or notices of, claims or
violations received by Seller from governmental authorities or other third
parties and relating to or materially affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably cooperate
with Buyer in connection with Buyer's obtaining any insurance which may be
required to be maintained by Buyer with respect to the Premises following the
Closing.
13. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation would otherwise give Tenant the option to reduce or xxxxx rent or
terminate the Lease, then, at Buyer's option, buyer may terminate this
Agreement, whereupon the full amount of the Xxxxxxx Money Deposit shall be paid
by Escrow Agent to Buyer, and all parties shall thereupon be relieved of all
further liability hereunder. If such condemnation would not otherwise give
Tenant the option to reduce or xxxxx rent or terminate the Lease, or if it gives
Tenant such option and Tenant waives such option in writing, then Seller will
promptly commence the reconstruction and the parties shall proceed with the
Closing in accordance with, and subject to, the terms hereof (in which event the
Purchase Price shall not be affected or adjusted and all condemnation proceeds,
after application of amounts for any necessary reconstruction to restore the
Premises, will be the property of Tenant.
14. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty would otherwise give Tenant the option to reduce or
xxxxx rent or terminate the Lease, then Buyer, at its option, may terminate this
Agreement, whereupon the full amount of the Xxxxxxx Money Deposit shall be paid
by Escrow Agent to Buyer, and all parties shall thereupon be relieved of all
further liability hereunder. If such casualty would not otherwise give Tenant
the option to reduce or xxxxx rent or terminate the Lease, or if it gives Tenant
such option and Tenant waives such option in writing, then the parties shall
proceed with the Closing in accordance with, and subject to the terms hereof. In
such event, all such proceeds of any insurance plus the amount of any deductible
(which shall be paid by Seller) will be applied toward reconstruction.
15. Remedies Upon Default.
(a) In the event Buyer breaches or defaults under any of the terms
of this Agreement prior to or on the Closing Date, the sole and exclusive remedy
of Seller shall be to receive from Escrow Agent the full amount of the Xxxxxxx
Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the Xxxxxxx Money Deposit and any interest earned
thereon if received in accordance with the terms of this Agreement is a
reasonable estimate of and bears a reasonable relationship to the damages that
would be suffered and costs incurred by Seller as a result of having withdrawn
the Premises from sale and the failure of Closing to occur due to a default of
Buyer under this Agreement; (ii) the actual damages suffered and costs incurred
by Seller as a result of such withdrawal and failure to close due to a default
of Buyer under this Agreement would be extremely difficult and impractical to
determine; (iii) Buyer seeks to limit its liability under this Agreement to the
amount of the Xxxxxxx Money Deposit and any interest earned thereon if the
transaction contemplated by this Agreement does not close due to a default of
Buyer under this Agreement; and (iv) such amount shall be and constitute valid
liquidated damages.
(b) In the event Seller defaults under any of the terms of this
Agreement on or prior to the Closing Date (including, without limitation, by
failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer shall, as its sole and
exclusive remedy hereunder, be entitled to (i) receive a refund of the Xxxxxxx
Money Deposit and terminate this Agreement, and (ii) recover damages incurred as
a result of such default, which shall be deemed to be equal to all actual costs
incurred by Buyer in connection with its proposed acquisition hereunder. The
foregoing shall not limit or affect in any way the remedies and rights accruing
to Buyer in the event of a default arising after the consummation of the Closing
hereunder (including damages resulting from a breach of any warranty or
representation of Seller as of the Closing, even if the same is not discovered
until after the Closing, to the extent the same survive the Closing), for which
Buyer shall be entitled to exercise any and all remedies as provided or allowed
under applicable law.
16. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
If to Seller: Peabody Campus, LLC
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
If to Buyer: CNL Retirement ER1, LP
c/o CNL Retirement Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Operating Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Lowndes, Drosdick, Doster, Xxxxxx
& Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent: Chicago Title Insurance Company, Atlanta National
Business Xxxx
0000-X Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xx. 30342
Attn: Xxxxx Xxxxxxxxx, Manager
Phone: 000-000-0000
Fax: 000-000-0000
17. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. In the event of a breach of the foregoing
warranties, the breaching party agrees to save, defend, indemnify and hold
harmless the non-breaching party from and against any claims, losses, damages,
liabilities and expenses, including but not limited to attorneys' fees. The
obligations of this Section shall survive the Closing or earlier termination of
this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may not assign its rights or
obligations hereunder without the prior written consent of Seller, not to be
unreasonably withheld. Seller shall not have the right to assign its rights and
obligations hereunder. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of Seller and Buyer and their respective
successors and assigns.
(b) Captions. The several headings and captions of the Sections
and subsections used herein are for convenience of reference only and shall in
no way be deemed to limit, define or restrict the substantive provisions of this
Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes the
entire agreement of Buyer and Seller with respect to the purchase and sale of
the Premises, and supersedes any prior or contemporaneous agreement with respect
thereto. No amendment or modification of this Agreement shall be binding upon
the parties unless made in writing and signed by both Seller and Buyer. Neither
this Agreement nor any Memorandum thereof shall be recorded by any party and, if
recorded by any party, the other party hereto may immediately terminate all of
its obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to the
performance of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with each
other to carry out effectively the purchase and sale of Premises in accordance
herewith and the satisfaction and compliance with all of the conditions and
requirements set forth herein, and shall execute such instruments and perform
such acts as may be reasonably requested by either party hereto.
(f) Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws and
customs of the State in which the Premises are located.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
(h) Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees. As used herein, the "prevailing party" shall include, without
limitation, any party who dismisses an action for recovery hereunder in exchange
for payment of the sums allegedly due, performance of covenants allegedly
breached or consideration substantially equal to the relief sought in the
action.
(i) Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
(j) Time Periods. Unless otherwise expressly provided herein, all
periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
(k) Authority. Each person executing this Agreement, by his or her
execution hereof, represents and warrants that they are fully authorized to do
so, and that no further action or consent on the part of the party for whom they
are acting is required to the effectiveness and enforceability of this Agreement
against such party following such execution.
(l) Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(m) Waiver. One or more waivers of any covenant, term or condition
of this Agreement by either party shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
(n) Relationship of the Parties. Nothing herein contained shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that no provision
contained herein, nor any acts of the parties hereto shall be deemed to create
the relationship between the parties hereto other than the relationship of
seller and buyer.
(o) Termination. This Agreement shall be void and of no force and
effect unless signed by Seller and delivered to Buyer no later than five (5)
days following the date of Buyer's execution of this Agreement.
[SIGNATURES APPEAR ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase
and Sale Contract on the date first above written.
SELLER: BUYER:
PEABODY CAMPUS, LLC, a Maryland CNL RETIREMENT ER1, LP,
limited liability company a Delaware limited partnership
By: Xxxxxxxx Retirement Communities, LLC, By: CNL Retirement ER1 GP, LLC,
a Maryland limited liability company. a Delaware limited liability company.
Its: Sole Member/Authorized Agent Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------- -------------------
Xxxxxxx X. Xxxxxxxx, Name: Xxxxxxx X. Xxxx
-----------------
Managing Director Title: Senior Vice President
Date: As of September 1, 2002
Date: As of September 1, 2002
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ R. Xxxx Xxxxxx
------------------
Name: R. Xxxx Xxxxxx
------------------
Title: Vice President & Senior Counsel
EXHIBIT A
DESCRIPTION OF PREMISES
-----------------------
EXHIBIT B
INTENTIONALLY OMITTED
---------------------
EXHIBIT C
INTENTIONALLY OMITTED
---------------------
EXHIBIT D
INTENTIONALLY OMITTED
---------------------
EXHIBIT E
THIS ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES
(this "Assignment") is made and entered into as of the _____ day of September,
2002, by PEABODY CAMPUS, LLC, a Maryland limited liability company, having a
mailing address at 000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 ("Assignor"),
in favor of CNL RETIREMENT ER1, LP, a Delaware limited partnership, having a
mailing address at CNL Center at City Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 ("Assignee");
W I T N E S S E T H:
-------------------
WHEREAS, Assignor has this day conveyed to Assignee certain real
property located in Peabody, Essex County, Massachusetts and more particularly
described on Exhibit A attached hereto and made a part hereof (the "Land"); and
WHEREAS, in conjunction with the conveyance of the Land, Assignor has
agreed to assign all of its right, title and interest in and to certain
licenses, permits, plans, contracts and warranties relating to the design,
development, construction, ownership, operation, management and use of the Land
and the improvements located thereon (together, the "Real Property").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
1. Assignment. Assignor does, to the extent permitted by law, hereby
transfer, assign and set over to Assignee to the extent assignable all of
Assignor's right, title and interest in and to (i) all general intangibles
relating to the design, development, construction, ownership, operation,
management and use of the Real Property, (ii) all certificates of occupancy,
zoning variances, licenses, building, use or other permits, approvals,
authorizations and consents obtained from and all materials prepared for filing
or filed with any governmental agency in connection with the design,
development, construction, ownership, operation, management and use of the Real
Property, (iii) all architectural drawings, plans, specifications, soil tests,
feasibility studies, appraisals, engineering reports and similar materials
relating to the Real Property, and (iv) all contract rights (including without
limitation rights to indemnification), payment and performance bonds or
warranties or guaranties relating to the Real Property, RESERVING UNTO ASSIGNOR,
however, any right, title or interest in and to any of the foregoing which may
be necessary or advisable in connection with Assignor's continued operation of
its business at the Real Property as tenant under a Ground Lease (the "Ground
Lease") between Assignee, as landlord, and Assignor, as tenant, dated on or
about the date hereof (the items described in this Section 1 being hereinafter
referred to as the "Licenses, Permits, Plans, Contracts and Warranties");
RESERVING, however, unto assignor the right to enforce the same during the term
of the Lease Agreement between assignor, as tenant, and Assignee, as landlord,
with respect to the Real Property.
2. Representations and Warranties of Assignor. Assignor represents and
warrants to Assignee that (i) the Licenses, Permits, Plans, Contracts and
Warranties are in full force and effect, (ii) Assignor has duly and punctually
performed or caused to be performed all and singular the terms, covenants and
conditions of the Licenses, Permits, Plans, Contracts and Warranties to be
performed by or on behalf of Assignor, (iii) Assignor has not received any
notice of default, nor is Assignor aware of any default (or facts which, with
the passage of time would result in a default) under any of the Licenses,
Permits, Plans, Contracts and Warranties, (iv) Assignor has not received any
notice of non-renewal or revocation of any of the Licenses, Permits, Plans,
Contracts and Warranties and (v) except as contemplated by encumbrances and
agreements permitted under the Ground Lease, Assignor has not sold, assigned,
transferred, mortgaged or pledged its right, title and interest in any of the
Licenses, Permits, Plans, Contracts and Warranties.
3. Further Assurances. Assignor covenants with Assignee that it will
execute or procure any additional documents necessary to establish the rights of
Assignee hereunder and shall, at the cost of Assignee, take such action as
Assignee shall reasonably request to enforce any rights under any of the
Licenses, Permits, Plans, Contracts and Warranties that are, by their terms, not
assignable to Assignee.
4. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
[Signature appears on following page.]
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the
date set forth above.
Signed and sealed in PEABODY CAMPUS, LLC, a Maryland
the presence of: limited liability company
By: Xxxxxxxx Retirement Communities, LLC,
a Maryland limited liability company.
Its: Sole Member/Authorized Agent
By:
------------------------
------------------------------- Xxxxxxx X. Xxxxxxxx,
Managing Director
Name:
-------------------------
-------------------------------
Name:
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EXHIBIT F
INTENTIONALLY OMITTED
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EXHIBIT G
DEED
----
PEABODY CAMPUS, LLC, a Maryland limited liability company, having a
mailing address at 000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, for
consideration of Dollars ($______________), grants to CNL RETIREMENT ER1, LP, a
Delaware limited partnership, having a mailing address at CNL Center at City
Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, with warranty
covenants, the land in Peabody, Essex County, Massachusetts, more particularly
bounded and described as set forth in Schedule A attached hereto and made a part
hereof, inclusive only of the fee simple title to said land, but not including
any improvements or any fixtures either now or hereafter located thereon.
IN WITNESS WHEREOF, Xxxxxxxx Retirement Communities, LLC, a Maryland
limited liability company, the sole and Managing Member of PEABODY CAMPUS, LLC,
a Maryland limited liability company, has caused its corporate seal to be hereto
affixed and these presents to be signed, acknowledged and delivered in its name
and behalf by Xxxxxxx X. Xxxxxxxx, its authorized signatory, hereto duly
authorized, this ____ day of September, 2002.
Signed and sealed in PEABODY CAMPUS, LLC, a Maryland
the presence of: limited liability company
By: Xxxxxxxx Retirement Communities, LLC,
a Maryland limited liability company
Its: Sole Managing Member
---------------------------
Name: By: _________________________
----------------------------
Xxxxxxx X. Xxxxxxxx,
___________________________ Managing Director
-------
Name:
State of
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County of
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Then personally appeared Xxxxxxx X. Xxxxxxxx, as Managing Director of
Xxxxxxxx Retirement Communities, LLC, a Maryland limited liability company, as
the sole and Managing Member of PEABODY CAMPUS, LLC, a Maryland limited
liability company and acknowledged before me the foregoing Deed to CNL
Retirement ER1, LP to be the free act and deed of PEABODY CAMPUS, LLC, a
Maryland limited liability company.
Notary Public
[SEAL]
My commission expires
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