EXHIBIT 10.16
Real Estate Purchase and Sale Contract
between CNL Retirement Corp., as Buyer,
and American Retirement Corporation, as Seller,
relating to the Homewood Residence of Boca
Raton - Boca Raton, Florida
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL RETIREMENT CORP.
a Florida corporation,
as BUYER
and
AMERICAN RETIREMENT CORPORATION,
a Tennessee corporation,
as SELLER
Premises: Homewood Residence at Boca Raton, Palm Beach County, Florida
(Tenant: ARC Boca Raton, Inc.)
TABLE OF CONTENTS
Page
1. Definitions..............................................................................................1
2. Purchase and Sale of Premises............................................................................3
3. Purchase Price for Premises..............................................................................3
4. Closing Date.............................................................................................4
5. Conditions to Buyer's Obligation to Close................................................................4
6. Deliveries at Closing....................................................................................7
7. Closing and Other Costs, Adjustments and Prorations......................................................9
8. Inspections.............................................................................................10
9. Title to Premises; State of Title to be Conveyed........................................................10
10. Escrow Agent............................................................................................10
11. Covenants, Representations and Warranties...............................................................12
12. Covenants of Seller Pending Closing.....................................................................14
13. Eminent Domain..........................................................................................14
14. Casualty................................................................................................14
15. Remedies Upon Default...................................................................................15
16. Notices.................................................................................................15
17. Brokerage Commissions...................................................................................16
18. Miscellaneous Provisions................................................................................16
Attachments:
Exhibit A - Description of Premises
Exhibit B - Permitted Exceptions
Exhibit C - Intentionally Omitted
Exhibit D - Intentionally Omitted
Exhibit E - Intentionally Omitted
Exhibit F - Intentionally Omitted
Exhibit G - Intentionally Omitted
Exhibit H - Form of Architect's Certificate
Exhibit I - Form of Engineer's Certificate
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 AMERICAN
RETIREMENT CORPORATION, a Tennessee corporation, having a mailing address at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), and CNL
RETIREMENT CORP., a Florida corporation, having a mailing address at CNL Center
at City Commons, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("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 Boca Raton, Palm Beach County,
Florida, and Buyer is willing to purchase such real property from Seller upon
the terms and conditions hereinafter set forth;
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) "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
(b) "Contracts" shall mean, with respect to the Premises, any
equipment leases relating to the Premises and disclosed to Buyer on or before
Closing which are to survive the Closing and to which the Seller is a party.
(c) "▇▇▇▇▇▇▇ 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.
(d) "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer and Seller has executed this Agreement.
(e) "Escrow Agent" shall mean Fidelity National Title
Insurance Company, whose address is set forth in Section 16 below.
(f) "Guarantor" shall mean American Retirement Corporation, a
Tennessee corporation.
(g) "Guaranty" shall mean the unconditional guaranty of the
Lease to be executed by the Guarantor and delivered to Buyer at Closing.
(h) "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.
(i) "Improvements" shall mean the building consisting of
assisted living and dementia care units and other related improvements to be
conveyed to Buyer and leased by Tenant pursuant to the terms of this Agreement,
and all appurtenances thereto, including but not limited to all pavement,
accessways, curb cuts, parking, drainage systems and facilities, landscaping,
and utility facilities and connections for sanitary sewer, potable water,
irrigation, electricity, telephone and natural gas, if applicable or required by
the Lease, to the extent the same form a part of the Premises.
(j) INTENTIONALLY OMITTED
(k) "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as lessee,
pursuant to which Tenant shall lease the Premises and Improvements from Buyer.
(l) INTENTIONALLY OMITTED
(m) INTENTIONALLY OMITTED
(n) INTENTIONALLY OMITTED
(o) INTENTIONALLY OMITTED
(p) "P&E" shall mean the "Initial Landlord P&E" as that term
is defined in the Lease.
(q) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation 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 in order to permit the Tenant to operate the Premises
properly in accordance with the terms of the Lease.
(r) "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto.
(s) "Plans" shall mean the final "as-built" plans and
specifications for the Improvements, which are to be furnished by Seller to
Buyer pursuant to Section 5.(a)(5) of this Agreement.
(t) "Premises" shall mean that certain parcel of real property
being more particularly described on Exhibit A attached hereto, together with
all of the Improvements, 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.
(u) "Purchase Price" shall mean NINE MILLION SIX HUNDRED
SEVENTY-TWO THOUSAND AND NO/100 DOLLARS ($9,672,000.00).
(v) "Seller's Reimbursement" shall mean the fixed sum of
$72,000.00, to be credited by Seller to Buyer at Closing in reimbursement of
Buyer's third-party inspection, review and other acquisition costs.
(w) "Tenant" shall mean ARC Boca Raton, Inc., a Tennessee
corporation which is a wholly-owned subsidiary entity of Seller, which Seller
shall cause to enter into the Lease.
(x) "Title Company" shall mean Fidelity National 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.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) ▇▇▇▇▇▇▇ 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 and Seller, and in any event no later than the Closing
Date (as hereinafter defined), Buyer shall deposit with Escrow Agent in
immediately available funds the ▇▇▇▇▇▇▇ Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
(b) ▇▇▇▇▇▇▇ Money Deposit. The ▇▇▇▇▇▇▇ 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, 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 on and as of September
11, 2001 (the "Closing Date") or such other date as is mutually agreeable to
Buyer and Seller, at the offices of Escrow Agent in Orlando, Florida, at such
time as is mutually acceptable to 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) On or before the Effective Date of this Agreement: Seller
shall deliver to Buyer (at no cost to Buyer):
(1) Copies of 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) If Tenant is a different entity than Seller, a
current operating statement, profit and loss statement, balance sheet and other
satisfactory financial information for Tenant, certified as true, correct and
complete by Tenant, reflecting Tenant's ability to pay rent and perform its
other Lease obligations, and a current profit and loss statement, balance sheet
and other satisfactory financial information for Guarantor reflecting
Guarantor's ability to perform its Guaranty obligations;
(3) 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;
(4) Final "as-built" Plans for the Improvements;
(5) 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.
(6) All warranties and guaranties pertaining to the
Improvements, specifically including the manufacturer's roof membrane warranty
issued with respect to the building comprising the Improvements.
(7) Buyer shall have received 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;
(iii) All covenants and restrictions, 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 ▇▇▇▇ (and paid
receipt therefor) with respect to ad valorem real property taxes and assessments
levied or assessed with respect to the Premises.
(8) Additional matters to be delivered, agreed upon or
accomplished on or before the Effective Date of this Agreement:
(i) INTENTIONALLY OMITTED
(ii) 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.
(iii) Buyer and Tenant shall have mutually agreed
upon all of the terms and conditions of the Lease to be entered into at Closing.
(iv) INTENTIONALLY OMITTED
(v) INTENTIONALLY OMITTED
(vi) Buyer and Seller shall have mutually agreed the
form of the Guaranty to be delivered to Buyer at Closing and on the form of the
Earn Out Agreement and First Offer Agreement as such terms are defined herein.
(vii) INTENTIONALLY OMITTED
(viii) Buyer and Seller shall have mutually agreed
upon the schedule of P&E to be conveyed to Buyer at Closing.
(ix) Buyer shall have approved any financial
information on the Tenant and Guarantor which Seller is required to furnish to
Buyer pursuant to Section 5.(a)(3) above.
(x) Buyer and Tenant shall have approved the Plans
which Seller is required to furnish to Buyer pursuant to Section 5.(a) above.
(xi) Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit H (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit I (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
(xii) 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.
(xiii) 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.
(xiv) Buyer shall have obtained and approved an
appraisal of the Premises.
(xv) Buyer shall have obtained and approved an
environmental assessment of the Premises, provided that Buyer shall, if required
by Buyer's environmental investigation consultant, promptly obtain and deliver a
50-year chain of title report evidencing the record ownership of the Premises
during the preceding 50 years, accompanied by copies of the deeds and other
instruments evidencing such record ownership.
(xvi) Buyer shall have obtained and approved an
"as-built" survey of the Premises.
(xvii) Buyer shall have otherwise determined, in its
sole and absolute discretion, that the Premises are satisfactory to Buyer.
In the event that this Agreement is executed and effective as of the Closing
Date as intended, Buyer shall be deemed to have approved all of the matters to
be received, reviewed and approved by Buyer pursuant to Sections 5.(a) above.
(b) On or before the Closing Date:
(1) Seller shall have completed the Improvements and all
utility services and have opened for business at the Premises.
(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, Tenant nor Guarantor 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) Tenant shall have duly executed and delivered the
Lease to Buyer, Guarantor shall have executed and delivered the Guaranty to
Buyer.
(5) The environmental assessment approved by Buyer as of
the Effective Date shall continue to accurately reflect the environmental
condition of the Premises.
(6) 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.
(7) 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 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 ▇▇▇▇▇▇▇
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.
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, lien rights, rights of
parties in possession (other than Tenant) and other encumbrances other than the
Permitted Exceptions naming both Buyer and Title Company as benefitted parties,
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 Warranty Deed with respect to the
Premises subject to no exceptions other than the Permitted Exceptions, in the
form approved by Buyer 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 the form approved by Buyer,
together with all of the documents assigned thereby, assigning and/or reserving
unto the Tenant, however, (i) the right to enforce the same during the term of
the Lease, and (ii) specific operating licenses which Buyer has approved in its
reasonable discretion as necessary for Tenant to retain for the proper licensing
and operation of the Facility, as such term is defined in the Lease;
(4) Three (3) signed counterparts of the closing
statement;
(5) An opinion from Seller's and Tenant's counsel on
matters and in the form approved by Buyer and relating to due organization and
good standing of, and the due authorization, execution and delivery of the
closing documents delivered by, Seller, Tenant and such other related parties
involved in the transaction as Buyer may reasonably require, and the
enforceability of the Lease against Tenant and the Guaranty against Guarantor;
(6) 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;
(7) 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;
(8) The Guaranty;
(9) Two (2) duly executed counterparts of the Earn Out
Agreement to be entered into between Seller and Buyer in the form approved by
Seller and Buyer and relating to potential Earn Out Amounts which may be earned
in the future by Seller ("Earn Out Agreement");
(10) INTENTIONALLY OMITTED
(11) Two (2) duly executed counterparts of the Right of
First Offer Agreement to be entered into between Seller and Buyer in the form
approved by Seller and Buyer and relating to the rights granted by Buyer to
Seller in respect of certain potential offers to purchase back the Property
("First Offer Agreement");
(12) INTENTIONALLY OMITTED
(13) One (1) counterpart of the Lease duly executed by
Tenant;
(14) A ▇▇▇▇ of sale conveying to Buyer title to the P&E;
(15) 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;
(16) A certificate of a duly authorized officer of Seller
confirming the continued truth and accuracy of the representations and
warranties of the Seller made in this Agreement.
(17) 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 and the joinder, if necessary or reasonably requested by
Buyer, in all conveyance and other closing documents, of the Seller-controlled
entities involved in the existing synthetic lease arrangements affecting the
Premises and related property interests. In addition the Seller shall at Closing
deliver, assign and convey or caused to be delivered, assigned and conveyed to
Buyer all interests, rights and benefits relating to the Premises which are
obtained from or reconveyed by the other parties to such synthetic lease
transactions.
(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) duly executed counterparts each of the Earn
Out Agreement and Right of First Offer Agreement;
(4) One (1) counterpart of the Lease duly executed by
Buyer.
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 the conveyance
of a commercial property (excluding only those expenses specifically described
below as the responsibility of Buyer) and 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) the cost of the architect's and engineer's
certificates required hereunder; (vii) legal fees and expenses of Seller; (viii)
the fee, if any, required by the manufacturer for the transfer by Seller to
Buyer of the manufacturer's roof membrane warranty for the building; and (ix)
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 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 be not 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 or Tenant's 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 ▇▇▇▇▇▇▇ Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Money Deposit
to Seller or to Buyer, as the case may be, under the following conditions:
(1) INTENTIONALLY OMMITTED.
(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 ▇▇▇▇▇▇▇ Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the ▇▇▇▇▇▇▇ Money Deposit, in which case the
Escrow Agent shall then disburse the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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, all of which
shall survive the Closing and the purchase and sale of the Premises:
(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.
(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. 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.
(3) Except for construction warranties with respect to
the Improvements, there are no service or maintenance contracts affecting the
Premises to which Buyer will be bound upon Closing.
(4) 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, alleged or potential violations of Applicable
Laws and Restrictions known to Seller.
(5) As of the Closing Date (i) there shall exist no event
which, with the giving of notice or the passage of time or both, 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.
(6) 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.
(7) 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.
(8) 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.
(9) The Premises are a separate parcel for real estate
tax assessment purposes.
(10) 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.
(11) To the best of Seller's knowledge the 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.
(12) No Hazardous Materials are, will be, or to the best
of Seller's knowledge, have been, stored, treated, disposed of or incorporated
into, on or around the Premises in violation of any applicable statutes,
ordinances or regulations; the Premises are in material compliance with all
applicable environmental, health and safety requirements; any business currently
or, to the best of Seller's knowledge, heretofore operated on the Premises has
disposed of its waste in accordance with all applicable statutes, ordinances and
regulations; and 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.
(13) Seller specifically acknowledges and understands
that where Seller knows of any fact(s) materially affecting the value or
desirability of the Premises, 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)
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 shall survive the
Closing Date.
(b) In order to induce Seller to enter into this Agreement and
sell the Premises, Purchaser makes the following covenants, agreements,
representations and warranties, all of which shall survive the Closing and the
purchase and sale of the Premises:
(1) Purchaser is a corporation duly organized and validly
existing and in good standing under the laws of the State of Florida. Purchaser
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) Purchaser 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 Purchaser.
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 the Premises or upon the Buyer 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 residential leases
entered into in the ordinary course of Seller's business, without the express
prior written consent of Buyer. Buyer's consent may be withheld at Buyer's sole
option; however, Buyer's response to any of the foregoing shall not be
unreasonably delayed and, if denied, shall be accompanied by a reasonably
detailed explanation of the reason for such denial.
(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 or notices received by Seller
relating to or in any manner 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, including the possible assumption by Buyer of Seller's existing
insurance coverage (evidence of which Seller shall furnish Buyer on request).
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 ▇▇▇▇▇ rent or
terminate the Lease, then, at Buyer's option, buyer may terminate this
Agreement, whereupon the full amount of the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ 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.
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
▇▇▇▇▇ rent or terminate the Lease, then Buyer, at its option, may terminate this
Agreement, whereupon the full amount of the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ 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
▇▇▇▇▇▇▇ Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 be entitled to (i)
receive a refund of the ▇▇▇▇▇▇▇ Money Deposit and terminate this Agreement, or
(ii) compel specific performance of this Agreement, in which event Buyer may
also recover its damages incurred as a result of such default, including but not
limited to all of its costs and attorneys' fees in seeking such specific
performance, or (iii) if specific performance is not possible or if Buyer elects
not to pursue specific performance, recover damages incurred as a result of such
default, which shall include 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.
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: American Retirement Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn. T. ▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: CNL Retirement Corp.
CNL Center at City Commons
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Post Office Box 2809
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Fidelity National Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn. Ms ▇▇▇▇▇ ▇▇▇▇, Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 assign all of its
rights and obligations hereunder without the written consent of Seller to any
entity which is owned or controlled by CNL Retirement Properties, Inc., a
Maryland corporation, provided, however, that any assignee of Buyer shall assume
all of the obligations of Buyer hereunder. In the event of any permitted
assignment hereunder Buyer shall thereupon be relieved of all further liability
under this Agreement; except that the ▇▇▇▇▇▇▇ Money Deposit shall not be
released or otherwise adversely affected as a result of any such assignment.
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 the 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.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL RETIREMENT CORP., a Florida
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
Date: November 9, 2001
SELLER:
AMERICAN RETIREMENT
CORPORATION, a Tennessee corporation
By: /s/ ▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Date: November 9, 2001
ESCROW AGENT:
FIDELITY NATIONAL TITLE
INSURANCE COMPANY
By: _____________________________
Name: _____________________________
Title: _____________________________
Date: _______________________
