Exhibit 10.6
Form of Purchase Agreement
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of _____________________, 19__, by
and between CNL ___________________________ ("Buyer") whose address is 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 and ____________________, a _____________
corporation ("Seller") with a mailing address at _____________________________.
PRELIMINARY STATEMENT
WHEREAS, CNL ___________________________ ("CNL") and Seller have
entered into that certain Commitment (the "Commitment") dated ______________,
19___ given by CNL and accepted by Seller on ______________, 1998 for the
purchase, sale and leaseback of certain properties presently operated or to be
constructed and operated as _____________ health care facilities; and
WHEREAS, Seller is the owner of that certain parcel of real estate
located in ______________, __________ County, ___________ and more particularly
described on Exhibit "A" attached hereto (hereinafter referred to as the
"Property"), which Buyer desires to purchase and to lease to Seller pursuant to
the Commitment and a Lease Agreement (the "Lease"), and Buyer and Seller have
entered into this Agreement for such purchase and as a part of the obligations
of CNL and Seller under the Commitment.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, Buyer and Seller agree as follows:
1. Commitment. In the event of a conflict between the terms of this
Purchase Agreement and the Commitment, the Commitment shall prevail. In the
event of any conflict between the terms of the Commitment and the Lease, the
Lease shall prevail.
2. Definitions. The following terms shall have the following meanings
for all purposes of this Agreement.
"Buyer" means CNL ___________________, and/or its affiliates.
"Closing Date" means the date specified in Section 5.
"Escrow Agent" means ________________________________________.
"Property" means the parcel of real estate described on
Exhibit "A" attached hereto, together with all buildings, fixtures and other
improvements now located thereon or to be constructed thereon.
"Purchase Price" means the amount set forth in Section 4 of this Agreement.
"Seller" means ________________, a ______________ corporation.
"Title Company" means Lawyers Title Insurance Corporation, Tampa National
Division.
"Title Commitment" means the title insurance commitment for the Property
provided to Buyer from Title Company, in accordance with the terms of Paragraph
8.A. of the Commitment.
3. Purchase and Sale of the Property. On the terms and subject to the
conditions set forth in this Agreement, Seller shall sell and Buyer shall
purchase the Property, and Buyer and Seller shall enter into a Lease by which
Buyer shall lease Property to Seller.
4. Purchase Price. The Purchase Price for the Property shall be $ ,
plus closing adjustments in accordance with the Commitment, which shall be
payable in cash or via wire transfer on the Closing Date.
5. Closing Date. The Closing Date for this Agreement shall be on or
before , 19__.
6. Condition of Title. Prior to the Closing Date, Buyer shall be
provided with the Title Commitment from the Title Company in the form required
by the Commitment, together with copies of all exceptions and requirements
listed therein. Within ten (10) business days after the receipt by Buyer of both
the Title Commitment and the other items to be delivered by Seller pursuant to
the terms of Paragraph 7 of this Agreement or five (5) days after the parties'
execution of this Agreement, whichever is later, Buyer shall give Seller written
notice of (a) Buyer's objections, if any, as to the status of title with respect
to the Property as reflected in the Title Commitment and (b) what remedial
actions, if any, must be taken by Seller in order to eliminate such objections
of Buyer. Within ten (10) days after the receipt by Seller of Buyer's notice,
Seller shall either (i) take (or cause others to take) such remedial actions to
eliminate Buyer's objections to title prior to the Closing Date, or (ii)
terminate this Agreement by written notice to Buyer, in which event Seller and
Buyer shall have only those liabilities and obligations to each other which are
specified in the Commitment. Except for the Schedule B-I requirements, the
"standard" Schedule B-II exceptions and the "gap" exception in Schedule B-II of
the Commitment, which shall be deleted by the Title Company at closing, and
subject to issuance by the Title Company of all endorsements requested by the
Buyer, pursuant to Buyer's written instructions pursuant to Paragraph 8.B.
below, all matters reflected in the Title Commitment with respect to which Buyer
does not give Seller notice in accordance with the provisions of this Paragraph
shall be deemed to be "Permitted Exceptions."
7. Seller's Delivery of Certain Documents. Not less than five (5) days
prior to the Closing Date, Seller shall obtain and deliver to Buyer certain
items with respect to the Property, as described in and required by the terms of
Paragraph 8 of the Commitment (except any of the foregoing items which Buyer has
agreed in writing to order on its own behalf).
2
8. Closing. On or before the Closing Date:
A. Seller's Closing Documents. Seller shall deliver to Title Company or
Buyer, as may be appropriate:
(i) a Warranty Deed, duly executed by Seller, free of all
liens, encumbrances, restrictions, encroachment and
easements, except for Permitted Exceptions;
(ii) an executed and acknowledged Lease;
(iii) an executed and acknowledged Memorandum of Lease;
(iv) written confirmation to Title Company directing it to
close this transaction; and
(v) such other documents and affidavits as Buyer or the Title
Company may reasonably require, including appropriate corporate certificates of
status and authorizing resolutions for Seller.
B. Buyer.
(i) Deposit of Funds. Buyer shall deposit the Purchase Price
in escrow with Title Company, together with any other amounts required to be
paid by Buyer pursuant to the terms of this Agreement.
(ii) Buyer's Closing Documents. Buyer shall deliver to Title
Company or Seller, as may be appropriate:
(a) an executed and acknowledged Lease;
(b) an executed and acknowledged Memorandum of
Lease;
(c) written instructions to Title Company
directing it to close this transaction; and
(d) such other documents as Seller or the Title
Company may reasonably require.
All closing documents shall be dated as of the Closing Date.
9. Costs and Expenses. Seller and Buyer agree to pay their respective
costs as specified in the Commitment, including without limitation, title
insurance premiums and fees, survey costs, recording fees, stamp taxes and
transfer fees. Taxes, assessments and other charges
3
shall not be prorated as of the Closing Date but shall be borne by Seller, as
Lessee, under the Lease.
10. Escrow Agent. Seller and Buyer hereby employ Title Company to act
as escrow agent in connection with this transaction upon the following terms and
conditions:
A. Seller and Buyer will deliver to Title Company all
documents, pay to Title Company all sums and do or cause to be done all other
things necessary or required by this Agreement, in the reasonable judgment of
Title Company, to enable it to comply herewith and to enable any title insurance
policy provided for herein to be issued.
B. Title Company is authorized to pay from any funds held by
it for Buyer's or Seller's respective credit all amounts necessary to procure
the delivery of such documents and to pay, on their behalf, all charges and
obligations payable by them respectively. Seller and Buyer will each pay all
charges payable by them to Title Company.
C. Title Company is authorized, in the event any demand is
made upon it concerning these instructions or the escrow, at its election, to
hold any money and documents deposited hereunder until an action shall be
brought in a court of competent jurisdiction to determine the rights of Seller
and Buyer or to interplead said parties by an action brought in any such court.
Deposit by Title Company of said documents and funds shall relieve Title Company
of all further liability and responsibility.
D. Buyer and Seller will indemnify and save harmless Title
Company against all costs, damages, attorney's fees, expenses and liabilities,
which it may incur or sustain in connection with these instructions or the
escrow or any court action arising therefrom and will pay the same upon demand.
E. Payment of any funds into escrow prior to the Closing Date
shall be made by wire transfer. Disbursement of any funds from the closing for
the benefit of Seller shall be made as directed by Seller. Title Company shall
be under no obligation to disburse any funds represented by check or draft, and
no check or draft shall be payment to Title Company in compliance with any of
the requirements hereof, until it is advised by the bank in which deposited that
such check or draft has been honored.
F. Title Company is authorized to act upon any statement
furnished by the holder or payee, or a collection agent for the holder or payee,
of any lien on or charge or assessment in connection with a Property, concerning
the amount of such charge or assessment or the amount secured by such lien
without liability or responsibility for the accuracy of such statement.
G. The employment of Title Company, as escrow agent, shall not
affect any rights of subrogation under the terms of any title insurance policy
issued pursuant to the provisions thereof.
4
11. Conditions of Closing for Buyer. The obligations of Buyer are
subject to the fulfillment or waiver of each of the following conditions set
forth below:
A. Closing Documents. At or prior to the Closing Date, Seller shall have
executed and delivered Seller's closing documents in accordance with Paragraph 8
of this Agreement.
B. Compliance with Commitment. At the Closing Date, Seller
shall be in compliance with its obligations under the Commitment.
12. Conditions of Closing for Seller. The obligations of Seller are
subject to the fulfillment or waiver of each of the following conditions set
forth below:
A. Closing Documents. At or prior to the Closing Date, Buyer shall have
executed and delivered Buyer's closing documents in accordance with Paragraph 8
of this Agreement.
B. Compliance with Commitment. At the Closing Date, Buyer
shall be in compliance with its obligations under the Commitment.
13. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
A. Buyer is duly organized, validly existing and in good
standing under the laws of its state of registration and qualified to do
business in the jurisdiction in which the Property is located. All necessary
action has been taken to authorize the execution, delivery and performance of
this Agreement and of the other documents, instruments and agreements provided
for herein.
B. The person or persons who have executed this Agreement on
behalf of Buyer are duly authorized to do so.
14. Representation and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
A. Seller is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation and qualified
as a foreign corporation to do business in the jurisdiction in which the
Property is located. All necessary corporate action has been taken to authorize
the execution, delivery and performance of this Agreement and of the other
documents, instruments and agreements provided for herein.
B. The person or persons who have executed this Agreement on
behalf of Seller are duly authorized to do so.
5
C. The Property and the existing use thereof and the condition
thereof does not violate any applicable deed restrictions, zoning or subdivision
regulations, urban redevelopment plans, local, state or federal environmental
law or regulation or any building or fire code applicable to the Property.
D. 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 Property.
E. 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.
F. To the best of Seller's knowledge, there are no federal,
state, county or municipal plans to restrict or change access from any highway
or road to the Property.
G. The Property is a separate parcel for real estate tax
assessment purposes.
H. To the best of Seller's knowledge, all of the information
furnished to Buyer pursuant to the terms of the Commitment regarding the
Property is true, complete and correct.
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 shall survive the
Closing Date.
15. Assignment. Buyer may assign in whole or in part its rights under
this Agreement without Seller's prior written consent to an affiliate of Buyer,
but Buyer agrees to give Seller notice thereof prior to Closing.
16. Default. In the event that a party defaults in the performance of
its obligations hereunder, the party not in default shall have the option (a) to
cancel this Agreement by delivering to the defaulting party and to the Title
Company a written notice of cancellation or (b) to deliver to the defaulting
party and to Title Company a written notice demanding that the defaulting party
comply with the terms hereof within ten (10) days from the receipt of said
notice by the defaulting party. If this Agreement is so cancelled, Seller and
Buyer shall have only those liabilities and obligations to each other which are
specified in the Commitment. Upon such termination, the Title Company is
authorized to return all documents deposited hereunder to the party who
delivered the same except documents executed by Seller and Buyer, which shall be
marked "cancelled" and retained in the files of Title Company.
6
17. Miscellaneous Provisions.
A. Notices. All notices, consents, approvals, or other
instruments required or permitted to be given by either party shall be in
writing and shall be deemed to have been properly given if sent by registered or
certified mail, return receipt requested, Federal Express, Airborne, Xxxxx, DHL,
Express Mail, or by other recognized overnight courier service, postage and
other charges prepaid, to the parties at the addresses set forth in the first
Paragraph hereof or to such other address as either party may give notice
pursuant to this section from time to time. All notices shall be deemed received
when delivered to the address specified.
B. Risk of Loss. Seller shall assume the risk of loss, damage
or destruction of the Property or any part thereof prior to the Closing Date.
C. Condemnation. In the event of a taking of any part or all
of the Property prior to closing, Buyer at its option shall have the right to
either (i) receive the proceeds of any condemnation award and proceed to close
with respect to the Property or (ii) withdraw the Property from these
transactions.
D. Real Estate Commission. Buyer and Seller shall not be
obligated to pay any commission or finder's fee to any broker, real estate
broker or agent in connection with this transaction. To the extent Seller or
Buyer has engaged the services of any such broker, real estate broker or agent,
Seller or Buyer, as the case may be, hereby indemnify and agree to hold the
other harmless from and against any and all costs, expense, loss, and damage,
including but not limited to attorney's fees and court costs, arising or
resulting directly or indirectly out of any claim by any broker, real estate
broker or agent in connection with this transaction.
E. Amendment and Waiver. Upon execution by the parties, this
Agreement may not be altered or amended. Waiver of any matter by either party
shall not be deemed a waiver of the same or any other matter on any future
occasion.
F. Other Documents. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
G. Attorney's Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees in
addition to any other relief to which it may be entitled.
H. Entire Agreement. This Agreement, together with the Commitment and any
other instruments or agreements referred to herein constitute the entire
agreement between the parties with respect to the Property.
I. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
7
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date shown hereinabove.
Signed, Sealed and Delivered
in the presence of: "BUYER"
CNL________________________, a
___________________corporation
------------------------------
By:
------------------------------------
Name:
--------------------------
------------------------------
Name:
--------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1998 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
--------------------------------------------------
Notary Signature
--------------------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:________________________________
My Commission Number:_____________________________
8
Signed, Sealed and Delivered
in the presence of: "SELLER"
____________________________, a
--------------
By:
-------------------------------- ------------------------------------------
Name:
--------------------------------
Name:
---------------------------------------
As Its:
--------------------------------------
--------------------------------
Name:
--------------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1998 by __________________,as ____________ of
______________________________., a ___________________ corporation, on behalf of
the corporation. He is personally known to me and did not take an oath.
-----------------------------------------
Notary Signature
-----------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:_______________________
My Commission Number:____________________
(SEAL)
9
