PURCHASE AND SALE AGREEMENT by and among Town Village Leawood, LLC, Town Village Arlington, L.P., Town Village Dallas, L.P. and Town Village Fort Worth, L.P., collectively as Seller and ARC Cypress LLC, a Tennessee limited liability company, as Purchaser
EXHIBIT
10.5
by
and among
Town
Village Leawood, LLC,
Town
Village Arlington, L.P.,
Town
Village Dallas, L.P.
and
Town
Village Fort Worth, L.P.,
collectively
as Seller
and
ARC
Cypress LLC,
a
Tennessee limited liability company,
as
Purchaser
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EXHIBITS
Exhibit
E Form
of
Residency Agreement
THIS
PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and
among
Town
Village Leawood, LLC
(“Tract
One Seller”), Town
Village Arlington, L.P.
(“Tract
Two Seller”), Town
Village Dallas, L.P.
(“Tract
Three Seller”) and Town
Village Forth Worth, L.P.
(“Tract
Four Seller”), and ARC
Cypress, LLC,
a
Tennessee limited liability company ("Purchaser"), as of the Effective
Date (as
hereinafter defined). Tract One Seller, Tract Two Seller, Tract Three
Seller and
Tract Four Seller are hereinafter collectively
referred
to as “Seller”.
1. Agreement.
For and
in consideration of the mutual benefits enjoyed by each of the parties
to this
Agreement and of the payment by Purchaser to Seller of One Hundred
and No/100ths
Dollars ($100.00) in cash, which payment shall be credited against
the
Consideration (as hereinafter defined) at Closing (as hereinafter defined)
but
which shall otherwise be nonrefundable to Purchaser, Seller agrees
to sell and
convey to Purchaser, and Purchaser agrees to purchase and accept conveyance
of,
the Property (as hereinafter defined) pursuant to the terms and conditions
herein set forth.
2. Property.
The
property which is the subject of this Agreement (collectively, the
"Property")
is as follows:
| a. |
the
fee simple title in and to the four (4) tracts of land described
on
Exhibit A attached hereto, together with all of Seller's
right, title and
interest, if any, in and to all easements, tenements, hereditaments,
privileges, and appurtenances, in any way belonging or relating
to the
same (each of said tracts being individually referred to
herein as a
“Tract” and being collectively referred to as the “Land”);
|
| b. |
To
the extent owned by the Seller, any and all oil, gas or other
minerals or
mineral rights relating to such Land or to the surface or
subsurface
thereof;
|
| c. |
Any
and all buildings, structures and other improvements presently
located
upon or affixed to the Land (collectively, the
"Improvements");
|
| d. |
All
personal property, fixtures, vehicles, buses and equipment
owned by Seller
which are located upon and used in connection with the ownership
or
operation of the Improvements or the Land (the
"Personalty");
|
| e. |
All
of Seller’s right, title and interest as landlord in any and all leases,
occupancy agreements, residency agreements and licenses granting
possessory rights in, on or covering the Land or the Improvements
(the
"Leases");
|
| f. |
To
the extent assignable, all of Seller’s right, title and interest in, if
any, and to all other agreements currently
in effect that
relate to the ownership, use, leasing, management, advertising,
security,
maintenance, or
operation of the Land, Improvements or Personalty, except
to the extent
the same are terminable by Seller at or before the Closing
with not more
than thirty-one (31) days prior written
notice
|
pursuant
to the terms thereof and constitute Rejected Agreements pursuant to
Section 5(e)
below (the "Property Agreements");
| g. |
To
the extent assignable and relating solely
to
the ownership, development, use, maintenance or operation
of the Land,
Improvements, Personalty, Leases or Property Agreements,
all of Seller’s
right, title and interest, if any, in and to all (i) plans,
models,
drawings, specifications, surveys, engineering reports and
other technical
descriptions or materials that are in the possession of Seller
or its
representatives (the "Plans"); (ii) warranties, guaranties,
indemnities
and claims (the "Warranties"); (iii) certificates of occupancy,
certificates of compliance (including those relating to compliance
by the
Property with all laws, rules and regulations governing access
for the
handicapped), licenses, permits, franchises and similar rights
issued by
any federal, state or municipal authority (the "Permits");
(iv)
rights to use the name “Town Village” for the Improvements
only;
and (v) all other claims or causes of action in favor of
or for the
benefit of Seller (the "Intangibles"); and
|
| h. |
the
extent assignable, all of Seller’s right, title and interest in, if any,
any
other tangible or intangible asset of any kind or nature
primarily used in
connection with the ownership or operation of the Property
or the
Improvements that is not specifically identified as an Excluded
Asset (as
hereinafter defined).
|
The
Property includes all of the assets owned by Seller and used in the
operation of
the Improvements except for the following, and only the following,
assets and
rights of Seller (the "Excluded Assets"), which shall not be sold,
transferred,
assigned or delivered to Purchaser:
(a) All
cash
and
receivables of
the
Seller;
(b) All
documents, drafts and records received or prepared in connection with
the
planning and sale of the Property, including bids received from
third-parties;
(c) the
organizational documents and other partnership records and documents
having to
do with the organization of each Seller; and
(d) the
rights that accrue, or will accrue, to the Seller under this
Agreement
and any
other agreements relating to the sale of the Property or otherwise
delivered in connection with this Agreement; and
(e) any
rights under any Intangibles that Seller may need to defend itself
from, or
enforce, claims or costs arising prior to the Closing Date.
3. Consideration.
Seller
agrees to accept and Purchaser agrees to pay as consideration for the
sale of
the Property (the "Consideration"), subject to the terms of this Agreement,
One
Hundred Forty-Six Million Two Hundred Eighty-Six Thousand Five Hundred
and
No/100ths Dollars ($146,286,500.00). The Consideration shall be allocated
among
the various Tracts as indicated on Exhibit
A.
The
Consideration (less any credits thereto provided hereby) shall be payable
at
Closing by wire transfer or other immediately available funds. At Closing,
Purchaser shall be entitled to a credit against the Consideration for
the
non-refundable consideration paid to Seller pursuant to Section 1 above,
and the
Xxxxxxx Money (as hereinafter defined) paid to Seller in accordance
with the
terms of this Agreement.
Except
for the liabilities, obligations or commitments specifically and expressly
assumed by Purchaser in this Agreement or the Deed or the Xxxx of Sale,
Purchaser shall not assume, or become responsible in any way for, any
other
liabilities, commitments or obligations of Seller, or any other liabilities
or
obligations that relate in any way to the Property or the ownership
or operation
of all or any portion of the Property prior to the Closing Date (each,
an
"Excluded Liability"). The Seller shall remain solely responsible for
the
Excluded Liabilities, and shall pay, discharge or satisfy the Excluded
Liabilities as the same come due.
| a. |
On
or before the Close of Business one (1) day after the Effective
Date,
Purchaser shall deposit with Texas United Title, Inc., 000
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention:
Xxxxxx Xxxx (the "Title Company"), the amount of Five Million
Five Hundred
Thousand Dollars ($5,500,000.00) as xxxxxxx money (together
with all
interest accrued thereon, the "Xxxxxxx Money"). The Xxxxxxx
Money shall be
applied against the Consideration at Closing but shall otherwise
be
nonrefundable to Purchaser unless Seller defaults or breaches
hereunder. Purchaser shall pay the Xxxxxxx Money in cash
(by means of wire
transfer). As used in this Agreement, the term "Close of
Business" shall
mean 5:00 p.m. in Austin, Texas on the date in question.
If Purchaser
fails to timely deliver the Xxxxxxx Money on or before the
Close of
Business on the date that the same is due and owing, Seller
shall have the
right to terminate this Agreement by notice thereof to Purchaser
at any
time prior to the receipt of such Xxxxxxx Money, and retain
so much of the
Xxxxxxx Money as Purchaser has delivered, as Seller's sole
remedy
hereunder, and thereupon this Agreement shall be null and
void and neither
party shall have any liability or obligation hereunder to
the other.
|
| b. |
The
Title Company shall hold the Xxxxxxx Money in an escrow capacity
on behalf
of Purchaser and Seller, in accordance with the terms of
this Agreement.
In the event the Closing does not occur, the Title Company
shall disburse
the Xxxxxxx Money in accordance with this Agreement. The
Xxxxxxx Money
shall be deposited by the Title Company into a separate interest-bearing
account at a bank acceptable to Purchaser and Seller whose
accounts are
insured by the FDIC in the name of the Title Company as escrow
agent for
Purchaser and Seller but over which the Title Company shall
have sole
signature power.
|
| a. |
Seller's
Title.
Purchaser acknowledges and confirms that it has heretofore
received a
Commitment of Title Insurance covering the Land prepared
by the Title
Company
(the
“Commitment”) pursuant to which First American Title Company or Fidelity
National Title Insurance Company commits to issue to Purchaser
an Owner’s
Policy of Title Insurance (the “Title Policy”) at Closing, subject only to
the following
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matters:
(i) the standard printed exception pertaining to restrictive covenants
affecting
the land described or referred to therein, unless there are no such
restrictive
covenants, in which event such exception shall be deleted; (ii) the
standard
printed exception pertaining to discrepancies, conflicts, or shortages
in area
or boundary lines, or any encroachments, or any overlapping of improvements;
provided that, at Purchaser’s request and sole expense, the same may be modified
to except only as to "shortages in area"; (iii) the standard printed
exception
for taxes for the year of closing and subsequent years, and subsequent
assessments for prior years due to change in land usage or ownership,
all of
which will be assumed and paid by Purchaser; (iv) any discrepancies,
conflicts,
or shortages in area or boundary lines, or any encroachments or any
overlapping
of improvements and other matters that a true, correct and complete
survey would
reveal; provided, that at Purchaser’s request and sole expense, such exceptions
shall be modified to reflect only matters shown on the Survey; (v)
all
governmental regulations and restrictions, including building and zoning
ordinances; (vi) subject to the provisions of Section 5(e) hereof,
any
covenants, conditions, reservations, exceptions and easements, and
all oil, gas
and mineral conveyances and leases, if any, in effect and shown of
record in the
county clerk's office where the Property, or any part thereof, is located,
and
(viii) any other title exceptions permitted as Permitted Exceptions
as provided
in Section 5(e) hereof (collectively, “Permitted Exceptions”). Contemporaneously
with the delivery of the Commitment, the
Title
Company Seller
shall also
deliver
to
Purchaser
legible
copies of all instruments identified in the Commitment.
| b. |
Survey.
Purchaser acknowledges and confirms that it has heretofore
received a
survey of each Tract
(collectively,
the “Survey).
|
| c. |
Documents
Relating to the Property.
Seller
has delivered to Purchaser
(or caused to be posted on Seller's restricted access website)
the
documents and materials, to the extent the same exist and
are in Seller’s
actual possession, on Schedule I attached to this Agreement.
Seller shall
periodically deliver updated documents and materials on Schedule
I as
required by Section 10.
|
| d. |
On-Site
Inspections.
At all times prior to the Closing or the earlier termination
of this
Agreement, Purchaser shall have the right, at Purchaser's
expense, to
conduct all on-site inspections of the Property determined
by Purchaser to
be necessary or appropriate to determine whether the Property
is suitable
for Purchaser's intended use, including, without limitation,
the Phase I
(but not Phase II) testing and inspection of the Property
(and its
subsurface) for any environmental contamination and for its
suitability
for development, the taking of ground water and core samples,
soil tests,
topographical and fault studies, and all other surveys, studies,
tests and
analysis desired by Purchaser. Subject to the limitations
set forth
herein, Seller hereby grants to Purchaser and its designated
agents or
contractors the right to enter upon the Property to perform
such
inspections, tests and other studies; provided, that (i)
Purchaser shall
repair any physical damage to the Property resulting therefrom;
(ii)
Purchaser shall and hereby does indemnify and hold Seller
harmless from
and against any damage, claim, cause of action, liability,
cost
(including, without
|
limitation,
reasonable attorneys' fees and court costs) or other obligation caused
by
Purchaser's entry upon or inspection of the Property; (iii) Purchaser
shall not
contact any tenants without Seller’s prior written consent and shall
not
interfere with the business or operations of any tenants at the Property,
(iv)
any such inspection, test or study shall be subject to written notice
received
by Seller at least 24 hours prior to the inspection, and (v) Seller
shall have
the right to have a representative present throughout any such inspection.
The
obligation of Purchaser to indemnify Seller under this Section 5(d)
shall
survive the Closing or any earlier termination of this Agreement.
| e. |
Notice
of Objections.
Purchaser has no further objections to any matters reflected
on the most
recent Commitment or the most recent Survey,
and all such matters shall be considered "Permitted Exceptions,"
provided,
however, that Seller shall be obligated to remove any lien
securing a
liquidated amount agreed
to by Seller (“Monetary
Liens”) from the Consideration payable at Closing.
|
On
the
Effective Date, Purchaser shall deliver a list of any and all of the
Property
Agreements and Brookdale Agreements (as hereinafter defined) which
Purchaser
desires that Seller terminate at Closing. Seller shall terminate prior
to
Closing any Property Agreements and Brookdale Agreements which Purchaser
so
elects to terminate to the extent (and only to the extent) the same
are
terminable upon not more than thirty-one (31) days prior written notice
without
the payment of any penalties or termination fees ("Rejected Agreements").
| f. |
Intentionally
Omitted.
|
| g. |
Seller's
Property Documentation.
If the transaction contemplated hereby does not occur by
the Closing Date,
within ten (10) days after Seller's request, Purchaser shall
return to
Seller (at Seller's notice address provided in Section 16)
all documents
listed on Schedule I, Property Agreements, Brookdale Agreements
and Leases
(and any copies thereof) that Seller has physically delivered
to
Purchaser. Notwithstanding any provision of this Agreement,
no termination
of this Agreement shall terminate Purchaser's obligation
pursuant to the
foregoing sentence.
|
6. Warranties
and Representations of Seller.
To
induce Purchaser to enter into this Agreement and to purchase the Property,
Seller makes the following representations and warranties, all of which
are true
and correct as of the Effective Date, and shall be true and correct
in all
material
respects on
the
Closing Date and shall survive for one (1) year after
the
Closing Date:
| a. |
except
as disclosed on Exhibit
B
hereto, there is no litigation for which Seller has been
served relating
to the Property;
|
| b. |
except
as disclosed on Exhibit
B
hereto, Seller has received no notice (and has no other actual
knowledge)
of any pending or threatened condemnation or similar proceedings
affecting
the Property;
|
| c. |
to
Seller’s actual knowledge (without inquiry or investigation), Seller
has,
during the period of Seller's ownership of the Property,
complied with all
applicable laws, ordinances, statutes, regulations, orders,
rules and
restrictions relating thereto, and, to Seller's actual knowledge
(without
inquiry or investigation), the Property and its existing
and prior uses
have not violated and do not violate the provisions of any
applicable
laws, ordinances, statutes, regulations, orders, rules or
restrictions
relating thereto;
|
| d. |
except
as disclosed on Exhibit
B
hereto or in the reports delivered by Seller to Purchaser
pursuant to
Section 5(c) above, (i) to Seller’s actual knowledge (without inquiry or
investigation), no toxic or hazardous substances or wastes
(as such terms
are defined under the Comprehensive Environment Response,
Compensation and
Liability Act of 1980, as amended, or the Resource Conservation
and
Recovery Act, as amended, or any other state or local statute
or
regulation) have been generated, stored, handled, disposed
of, located, or
released onto or from the Property in a manner or amount
that is in
violation of and requires remediation under applicable law,
nor have any
such materials or wastes been generated, stored, handled,
disposed of,
located or released on any real property contiguous or adjacent
to the
Property in a manner or amount that is in violation of and
requires
remediation under applicable law; and (ii) to Seller’s actual knowledge
(without inquiry or investigation), the Improvements do not
contain
asbestos, polychlorinated biphenyls, urea, formaldehyde,
lead-based paint,
radon gas or underground storage
tanks;
|
| e. |
Seller
has full power and authority to enter into this Agreement
and to assume
and perform all of its obligations hereunder, and the execution
and
delivery of this Agreement and the performance by Seller
of its
obligations hereunder requires no further action or approval
in order to
constitute this Agreement as a binding and enforceable obligation
of
Seller; and
|
| f. |
Seller
is not a "foreign person" as that term is defined in Section
1445 of the
Internal Revenue Code.
|
| g. |
Each
Rent Roll (as defined on Schedule I) sets forth a true, accurate
and
complete in all material respects list of
all Leases in effect with respect to the Property pursuant
to which any
person or entity leases or occupies space at the Land or
in the
Improvements. Seller
has delivered
to
Purchaser true, accurate and complete copies of all such
Leases. Seller
has not entered into, nor does it have any knowledge of,
any other
agreement not
set forth on the Rent Roll giving
any person or entity the right to use or occupy any part
of the Land or
the Improvements,
except Permitted Exceptions.
|
| h. |
Seller
has delivered to Purchaser
a
complete list of all Property Agreements
and all Brookdale Agreements (as hereinafter defined), and
a complete
copy of each Property Agreement, including any modifications
thereto.
Except
as disclosed on Exhibit
B
hereto, Seller is not in material breach of, or default under,
any
Property Agreement.
Seller has advised Purchaser that Brookdale Cypress Management
LP
(“Brookdale”)
has entered into certain agreements that relate
to the ownership, use,
|
leasing,
management, advertising, security, maintenance, or operation of the
Land,
Improvements or Personality
(the
“Brookdale Agreements”). Seller will use good faith efforts (which shall not
include the payment of money) to obtain copies of the Brookdale Agreements
for
Purchaser's review, subject to Purchaser's execution of such confidentiality
agreements as Brookdale may reasonably require. The Brookdale Agreements
shall
not, however, be included in, or constitute, Property Agreements. Seller
represents and warrants that any Brookdale Agreements that encumbers
or affects
the Property in any way following the Closing or that will be binding
upon the
Purchaser following Closing will have been provided to Purchaser on
or before
the Effective Date.
| i. |
Seller
has delivered to Purchaser a schedule setting
forth the name, title,
payroll
and benefit
data
of
each person employed at the Land or in connection with the
ownership or
operation of the Improvements
by
Seller or Brookdale.
|
| j. |
The
Seller
has made available to Purchaser the
operating statements
of
each Seller at December 31, 2003,
December 31, 2004 and through November 30, 2005 (the “Financial
Statements”).
The Financial Statements
present fairly the results
of operation for
each property owned by
each Seller as of the dates thereof and for the period covered
thereby.
|
| k. |
Except
as disclosed on Exhibit
B,
Seller does
not have any actual knowledge of any material defect to the
physical
structure of any Improvement, ordinary wear and tear accepted.
|
As
used
in this Agreement, references to "Seller's knowledge" and to "Seller's
actual
knowledge" refers to the knowledge of Xxx Xxxxx, Xxxxxxx Xxxxxxxx or
Xxxxx
Xxxxx, who are the individuals employed by Seller who have the best
knowledge
about the Property.
| l. |
EXCEPT
AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE
DEED,
SELLER
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING
(i) THE
NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE
WATER, SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND
OF THE PROPERTY
FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT
TO CONDUCT
THEREON, AND THE EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR
CONDITION
THEREON (INCLUDING THE PRESENCE OF ASBESTOS) OR COMPLIANCE
WITH APPLICABLE
LAWS, RULES OR REGULATIONS; (ii) EXCEPT
FOR ANY WARRANTIES OF TITLE CONTAINED IN THE DEED TO BE DELIVERED
BY
SELLER AT CLOSING, THE
NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION,
LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHERWISE;
AND (iii) THE
COMPLIANCE OF THE PROPERTY OR
ITS
|
OPERATION
WITH ANY LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL OR OTHER
BODY.
PURCHASER ACKNOWLEDGES THAT IT WILL HAVE AN OPPORTUNITY TO INSPECT
THE PROPERTY
AND,
THAT IT WILL BE RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT
ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER
FURTHER
ACKNOWLEDGES THAT ITS INFORMATION WITH RESPECT TO THE PROPERTY WILL
BE OBTAINED
FROM A VARIETY OF SOURCES, AND SELLER (x) HAS NOT MADE, AND WILL NOT
MAKE, ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND
(y) DOES NOT
MAKE ANY REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF ANY
SUCH
INFORMATION. THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE
ON AN "AS
IS," "WHERE IS" BASIS AND "WITH ALL FAULTS", AND PURCHASER EXPRESSLY
ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN,
EXCEPT
AS OTHERWISE SPECIFIED HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT
NOT LIMITED
TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, TENANTABILITY
OR
FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE
PROPERTY.
7. Warranties,
Representations and Covenants of Purchaser.
To
induce Seller to enter into this Agreement and to sell the Property
to
Purchaser, Purchaser represents and warrants to Seller that Purchaser
has been
duly authorized to enter into this Agreement on the terms and conditions
of this
Agreement and that this Agreement is fully binding and enforceable
against
Purchaser.
8. Additional
Covenants of Seller.
Seller
covenants and agrees as follows:
| a. |
Seller
shall not commit waste of the Property, shall operate and
manage the
Property in
the ordinary course and substantially the same as the Property
is being
operated and managed as of the Effective Date and in accordance
with
existing operating plans, and shall keep the Property in
substantially the
same state of repair and condition as its current condition,
reasonable
and ordinary wear and tear
excepted.
|
| b. |
Seller
shall keep, observe and perform its obligations under the
Leases, Property
Agreements, Permits, and Intangibles, and comply in all material
respects
with all federal, state and municipal laws, ordinances, rules,
regulations, restrictive covenants and orders relating to
the
Property.
|
| c. |
Seller
shall not sell, assign or transfer any of the Property, or
remove any item
of personal property from the Land or Improvements, except,
in each case,
for the purpose of repair or replacement or otherwise in
the ordinary
course of business.
|
| d. |
Seller
shall not enter into any new lease, agreement or contract
(other than
residency agreements) or amend any existing Property Agreement,
in each case
except in the ordinary course of
business.
|
| e. |
Seller
shall not enter into any residency agreement, except pursuant
to the form
of residency agreement attached hereto as Exhibit
E
in
the ordinary course of business and consistent with current
rental
practices.
|
| f. |
Seller
shall not create, assume or permit to exist any lien, security
interest,
mortgage, deed of trust or encumbrance of any type, kind
or nature
whatsoever upon any of the Property, except for Permitted
Exceptions.
|
| g. |
Seller
shall not allow the levels of inventories, supplies and materials
to vary
materially from those customarily maintained, or defer delivery
of any
inventories, supplies or materials outside of the ordinary
course of
business.
|
| h. |
Seller
shall not defer any regularly
scheduled maintenance or capital replacement items, or fail
to repair or
replace any emergency repair item.
|
| i. |
Seller
shall pay all of its material
obligations and liabilities as they come
due.
|
| j. |
Within
twenty-two
(22) days following the end of each calendar month prior
to the Closing
Date, and as of the Closing Date, Seller shall deliver to
Purchaser a
Rent
Roll and operating statement that are
correct, complete and accurate in
all material aspects,
and any updated documents or materials on Schedule I, as
of the end of
each calendar month and as of the Closing
Date.
|
| k. |
Seller
shall
promptly notify the Purchaser of any fact, condition or occurrence
that
(i) causes or constitutes a breach of Seller's representations,
warranties
or covenants under this Agreement (or that would be reasonably
likely to
cause such a breach); and (ii) that would be reasonably likely
to
constitute a Material Adverse Change
(as hereinafter defined).
|
| l. |
The
Seller
shall afford to Purchaser and its accountants, counsel and
other
representatives full access, upon reasonable prior notice
during normal
business hours during the period prior to Closing, to the
Seller's
personnel, properties, books, records, agreements and commitments
relating
to the Land and Improvements or the operation thereof (other
than the
Excluded Assets); provided, that such access does not unreasonably
disrupt
the normal operations of the Seller; provided, further that
such access
does not include access to Brookdale's corporate records
or records
maintained at Brookdale's corporate office to which Seller
does not have
access.
|
| m. |
After
the
Closing, Purchaser and Seller shall (i) use commercially
reasonable
efforts to take, or cause to be taken, all actions and to
do, or cause to
be done, all things necessary, proper or advisable to consummate
and make
effective the transactions contemplated by this Agreement,
(ii) execute
any documents, agreements or instruments of conveyance that
may be
reasonably necessary to carry out
or
|
consummate
the transactions contemplated hereby, and (iii) cooperate with each
other in
connection with the foregoing.
| a. |
In
the event any proceeding should be commenced for the taking
in
condemnation or under the power of eminent domain of all
or any
substantial portion of any of the Tracts comprising the Property
which
after such taking would not leave sufficient property within
such Tract to
continue the existing use of such Tract in substantially
the same manner
and with the same expected economic results (a "Condemnation
Proceeding"),
Seller shall promptly give written notice of, and full information
concerning, such Condemnation Proceeding to Purchaser and
shall thereafter
keep Purchaser fully informed concerning such Condemnation
Proceeding. If
a Condemnation Proceeding occurs prior to the Closing, Purchaser
shall
have the right to terminate this Agreement. Should Purchaser
terminate
this Agreement as a result of any such Condemnation Proceeding,
the
Xxxxxxx Money will
be delivered to Purchaser and both parties shall be released
from their
obligations hereunder, except for those obligations which
expressly
survive the Closing or any earlier termination of this
Agreement.
|
| b. |
If
Purchaser does not elect to terminate this Agreement as a
result of a
Condemnation Proceeding, and the Property is purchased by
Purchaser while
such Condemnation Proceeding is pending, then Purchaser shall
be
substituted for Seller as a defendant in such proceeding.
In the event
such Condemnation Proceeding is concluded while Seller is
still the owner
of the Property and Seller receives the condemnation award,
then the
Consideration with respect to such affected Tract (based
on that portion
of the Consideration allocated to the affected Tract as indicated
on
Exhibit A) shall be reduced by the amount of the condemnation
award which
is attributable thereto. If Seller has not received the condemnation
award
at the time of Closing, then the Consideration with respect
to such
affected Tract shall remain unchanged, and Seller shall assign
to
Purchaser all of the right, title and interest of Seller
in such
condemnation award. Seller agrees that Purchaser shall have
the right, at
Purchaser's expense, to participate in any Condemnation
Proceeding.
|
| c. |
Pending
Closing, the risk of damage or destruction of the Property
by reason of
any casualty, except as a result of Purchaser’s inspection activities,
shall be and remain in Seller. In the event the Improvements
are partially
destroyed by fire or other casualty pending the Closing and
the cost
associated with repairing any such damage is equal to or
greater than Five
Hundred Thousand and No/100ths Dollars ($500,000.00) in the
aggregate for
all Tracts, Seller shall immediately notify Purchaser of
such damage or
destruction and Purchaser shall have the option to either
(i) terminate
this Agreement by giving Seller written notice of such termination
within
five (5) days after Purchaser receives notice of such casualty
from
Seller, and the Xxxxxxx Money will
be delivered to Purchaser and the parties hereto shall be
relieved of
their obligations hereunder, except for those obligations
that expressly
survive the Closing or any earlier termination of this Agreement;
or
(ii)
|
proceed
with Closing whereupon Purchaser shall be entitled to (x) a written
assignment
from Seller of all insurance proceeds due Seller with respect to such
casualty
and (y) a credit against the Consideration equal to all deductibles
or
self-insured retentions under Seller’s insurance policies. In the event the
Improvements are partially destroyed by fire or other casualty pending
Closing
and the cost associated with repairing any such damage is less than
Five Hundred
Thousand and No/100ths Dollars ($500,000.00) in the aggregate for all
Tracts,
Seller shall immediately notify Purchaser of such damage or destruction
and
Purchaser shall proceed with Closing, whereupon Purchaser shall be
entitled to a
written assignment from Seller of all insurance proceeds, if any, due
Seller
with respect to such casualty,
together with a credit against the Consideration equal to all deductibles
or
self-insured retentions under Seller’s insurance policies.
| a. |
The
consummation of the purchase and sale of the Property ("Closing")
shall
take place at a time and place and on a date, all of which
shall be
mutually agreed upon in writing (the "Closing Date") no later
than the
Close of Business on February 28, 2006, and the Consideration
must have
been received by 1:00 p.m. Texas
time.
|
| b. |
At
the Closing, Seller shall deliver to Purchaser (or to the
Title Company in
escrow for delivery to Purchaser upon consummation of the
purchase and
sale provided for herein) the
following:
|
|
i
|
A
Special Warranty Deed for the Land (the "Deed") executed
by Seller in the
form attached hereto as Exhibit
C
(adjusted for state law changes for Land in states other
than Texas), but
properly completed in accordance with this Agreement, duly
acknowledged
and in form for recording, which Deed shall convey to Purchaser
good,
indefeasible and insurable fee simple title to the Land,
free and clear of
all liens, encumbrances, covenants, conditions, restrictions,
right-of-ways, easements and other matters affecting title,
except for the
Permitted Exceptions;
|
|
ii
|
A
xxxx of sale and assignment (the "Xxxx of Sale") duly executed
by Seller,
in the form attached hereto as Exhibit
D,
but properly completed in accordance with this Agreement,
conveying to
Purchaser (A) the Personalty; (B) the assignable Warranties,
if any; (C)
the Plans, Permits, and Intangibles; (D) the Leases (together
with any
security deposits); and (E) Seller’s interest under the Property
Agreements (other than Rejected Agreements) to be assigned
to Seller
hereunder; all free and clear of all liens and encumbrances
except for the
Permitted Exceptions;
|
|
iii
|
An
updated Rent Roll certified as being true and correct by
Seller as of the
Closing Date;
|
|
iv
|
All
certificates of title relating to vehicles
that are included in this sale,
and all keys and entrance cards used on any part of the
Property;
|
|
v
|
An
Owner's Policy of Title Insurance issued by First American
Title Company
or Fidelity National Title Insurance Company, in the face
amount of the
Consideration, insuring fee simple title to the Land to be
in Purchaser,
subject only to the Permitted Exceptions, and otherwise conforming
to the
requirements for the Commitment described above in Section
5(a);
|
|
vi
|
The
originals, or certified copies, of all Leases, Property Agreements,
plans,
permits and warranties in Seller’s possession or control which relate to
the Property;
|
|
vii
|
Seller's
affidavit in a form reasonably acceptable to Purchaser and
Seller, as
required by Section 1445 of the Internal Revenue Code;
|
|
viii
|
Possession
of the Property to Purchaser in accordance with the terms
of this
Agreement; and
|
|
ix
|
Evidence,
in form and content satisfactory to Purchaser and the Title
Company, that
the persons executing the instruments delivered at closing
on behalf of
Seller have the authority to bind Seller to perform its obligations
set
forth therein.
|
| c. |
Upon
Seller's delivery of the foregoing, Purchaser shall deliver
to Seller (or
to the Title Company in escrow for delivery to Seller) the
remaining
portion of the Consideration (less any credits to which Purchaser
is
entitled pursuant to the terms
hereof).
|
| d. |
In
addition
to any other condition to the Purchaser's obligations hereunder,
the
obligation of the Purchaser to
purchase and pay for the Property is subject to the satisfaction
on or
prior to the Closing Date of the following additional
conditions:
|
| (i) |
no
applicable law, ordinance, rule, regulation, injunction or
legal restraint
shall have been enacted, entered, promulgated, enforced or
issued by any
governmental entity or authority after the Effective Date
preventing the
consummation of the transactions contemplated by this Agreement
(Purchaser
represents and warrants to Seller that it has no actual knowledge
of any
such law, ordinance, rule, regulation, injunction or legal
restraint that
is currently in existence which would prevent Purchaser from
consummating
the transactions contemplated by this
Agreement);
|
| (ii) |
the
representations and warranties of the Seller in
this Agreement shall be true and correct in all material
respects as of
the Closing Date as though made on the Closing
Date;
|
| (iii) |
the
Seller shall
have performed or complied in all material respects with
all obligations
and covenants required by this Agreement to be performed
or complied with
by Seller
by
the time of the Closing;
|
| (iv) |
all
management agreements relating to the Property shall have
been terminated
as of the Closing Date;
|
| (v) |
Purchaser
shall have hired the majority of the aggregate employees
at the
Improvements provided that Purchaser shall have made good
faith efforts to
hire such employees offering wage levels and benefit packages
that, on the
whole, are equal or better than their existing
levels;
|
| (vi) |
no
Material Adverse Change shall have occurred
and no event that would reasonably be expected to result
in a Material
Adverse Change shall have occurred. As
used herein, the term "Material Adverse Change" shall mean
a material
adverse change in the business, assets, financial condition,
operations or
prospects of the businesses operated on the Land or in the
Improvements.
|
| e. |
In
addition to any other condition to the Seller's obligations
hereunder, the
obligation of the Seller to consummate the transactions contemplated
by
this Agreement is subject to the satisfaction on or prior
to the Closing
Date of the following additional
conditions:
|
|
i
|
No
applicable law, ordinance, rule, regulation or injunction
enacted,
entered, promulgated, enforced or issued by any governmental
entity or
authority, or other legal restraint or prohibition preventing
the
consummation of the transactions contemplated by this Agreement
shall be
in effect;
|
|
ii
|
The
representations and warranties of the Purchaser in this Agreement
shall be
true and correct in all material respects as of the Closing
Date as though
made on the Closing Date; and
|
|
iii
|
The
Purchaser shall have performed or complied in all material
respects with
all obligations and covenants required by this Agreement
to be performed
or complied with by Purchaser by the time of the
Closing.
|
| a. |
Seller
agrees to pay recording fees for the recordation of the instruments
conveying title to the Property; all of the cost of the Commitment,
Title
Policy and the Survey (excluding the costs of any modification
of the
survey exception or other endorsements, which shall be paid
by Purchaser
and any updates to the Survey; all charges for tax certificates;
all
charges for the preparation and recordation of any releases
or instruments
required to clear Seller's title for conveyance in accordance
with the
provisions of this Agreement; Seller's attorney's fees, except
as provided
in Section 14(c); and one half (1/2) of any escrow fee charged
by the
Title Company.
|
| b. |
Purchaser
agrees to pay one half (1/2) of any escrow fee charged by
the Title
Company; all of the cost of any updates to the Survey; the
costs of
modifying the survey exception on the title insurance policy,
transfer
fees or taxes, documentation fees or taxes, stamp taxes,
the costs of any
recording fees which Seller is not obligated to pay pursuant
to (a) above;
and
Purchaser's attorneys' fees, due diligence fees and inspection
fees,
except as provided in Section
14(c).
|
All
other
costs, charges and expenses in connection with the Closing shall be
allocated
between Purchaser and Seller as specified in this Agreement, or absent
such
specification, in accordance with the customary practices in the County
in which
the applicable Tract is located.
| a. |
The
following prorations and credits are to be made as of 12:01
a.m. Austin,
Texas time on the Closing Date:
|
|
i
|
Rent.
Rent received by Seller under the Leases for the month in
which the
Closing occurs shall be apportioned as of the Closing Date
(with rent
attributable to the Closing Date credited to Purchaser).
With respect to any rent arrearage arising under the Leases,
after
Closing, Purchaser shall pay over to Seller any rent arrearage
actually
collected by Purchaser which is specifically applicable to
the month in
which Closing occurs and to any other month preceding the
Closing Date.
Purchaser shall use reasonable efforts to recover any rent
arrearage, but
shall not be required to evict any tenant. Seller shall be
permitted to
pursue its remedy for collection of any rent arrearages applicable
to
periods prior to the Closing Date, provided that Purchaser
shall incur no
cost, liability or expense in connection therewith, provided,
further,
that Seller shall not be permitted to enforce any other legal
or equitable
remedies specifically including commencing eviction procedures.
Purchaser
shall pay Seller an amount equal to all security deposits
required to be
held by Seller under the Leases.
|
|
ii
|
Tenant
Charges.
Where the Leases contain tenant obligations for taxes, common
area
expenses, operating expenses or additional charges of any
other nature,
and where Seller has collected any portion thereof in excess
of amounts
owed by tenants for such items for the period prior
to the Closing Date, then there shall be an adjustment and
credit given to
Purchaser on the Closing Date for such excess amounts collected.
Purchaser
shall apply all such excess amounts to the charges owed by
Purchaser for
such items for the period after the Closing Date and, if
required by the
Leases, shall rebate or credit tenants with any remainder.
If it is
determined that the amount collected during Seller’s ownership period
exceeded the tenants’ obligation to pay for such expenses incurred during
the same period by more than the amount previously credited
to Purchaser
at Closing, then Seller shall promptly pay to Purchaser the
deficiency
upon demand after the Closing. If Seller has collected less
than the
entire amounts due from tenants under the Leases, Purchaser
shall use
reasonable efforts to collect any such deficiency from the
tenants after
Closing and pay over to Seller any deficiency for periods
prior to Closing
actually collected by Purchaser.
|
|
iii
|
Utility
Charges.
Utilities, except to the extent such utility charges are
billed to and
paid by tenants directly, shall be prorated based on the
last full month’s
bills.
|
|
iv
|
Real
Estate Taxes and Special Assessments.
General real estate taxes shall be prorated as of Closing,
with taxes
assessed for
the
Closing Date, and for subsequent assessments for periods
preceding Closing
due to a change in land usage or ownership, to be paid by
Purchaser. If
tax bills have been issued and the actual amount of general
real estate
taxes for the calendar year in which Closing occurs can be
precisely
determined as of the Closing Date, Purchaser shall receive
as a credit
against the Consideration, an amount equal to Seller’s prorated portion of
such real estate tax amount. If tax bills have not been issued,
but the
tax rate for the calendar year in which the Closing occurs
("Closing Year
Tax Rate") has been established, Purchaser shall receive
as a credit
against the Consideration, an amount equal to Seller’s prorated portion of
the product of the Closing Year Tax Rate multiplied by a
value to be
mutually agreed upon by Seller and Purchaser. If neither
the actual taxes
nor the Closing Year Tax Rate have been established as of
the Closing
Date, then such calculation shall be accomplished by multiplying
the sum
of a value to be mutually agreed upon by Seller and Purchaser
by the most
recent tax rate available, the prorated portion of which
sum shall be
credited to Purchaser against the Consideration. Purchaser
shall notify
Seller in writing promptly after the tax bills for the year
of closing are
available and the actual general real estate taxes for the
year of Closing
will be reprorated and the parties agree to make adjustment
between them
if the reproration results in any difference in the amount
credited to
either party at Closing. The party owing money to the other
party shall
promptly pay such money to the other party, together with
interest thereon
at the lesser of two percent (2%) over the "prime rate" (as
announced from
time to time in the Wall Street Journal) per annum or the
maximum rate
allowed by law, from the date the deficiency is determined
and each party
is notified if payment is not made within twenty (20) days
after delivery
of such notification.
|
|
v
|
Other
Apportionments.
Amounts payable under the Property Agreements assigned by
Seller to
Purchaser hereunder, annual or periodic permit and/or inspection
fees
(calculated on the basis of the period covered), and liability
for other
Property operation and maintenance expenses and other recurring
costs
shall be apportioned as of the Closing
Date.
|
|
vi
|
Preliminary
Closing Adjustment.
Seller and Purchaser shall jointly prepare and approve a
preliminary
Closing adjustment on the basis of the Leases and other sources
of income
and expenses, and shall deliver such computation to the Title
Company
prior to Closing.
|
|
vii
|
Post-Closing
Reconciliation.
If any of the aforesaid prorations cannot be definitely calculated
on the
Closing Date, then they shall be estimated at the Closing
and definitely
calculated as soon after the Closing Date as feasible. As
soon as the
necessary information is available, either party may at its
cost
conduct
|
a
post-Closing audit to determine the accuracy of all prorations made
to the
Consideration ("Post-Closing Audit"). Either party owing the other
party a sum
of money based on such subsequent proration(s) or the Post-Closing
Audit shall
promptly pay said sum to the other party, together with interest thereon
at the
rate of two percent (2%) over the "prime rate" (as announced from time
to time
in the Wall Street Journal) per annum from the Closing Date to the
date of
payment if payment is not made within ten (10) days after delivery
of a xxxx
therefor.
| b. |
The
provisions of this Section 12 shall survive the
Closing.
|
| a. |
Purchaser
shall and hereby does indemnify Seller against, and agrees
to defend and
hold Seller harmless from, any and all third party obligations,
losses,
liabilities, claims, suits, debts, accounts, liens or encumbrances
and all
costs and expenses, including reasonable attorneys' fees
relating thereto,
that Seller may suffer or incur and that (i) result from
or relate to the
Property on or after the Closing Date and/or Purchaser's
ownership or
operation thereof on or after the Closing Date unless Seller,
rather than
Purchaser, is obligated therefor under other provisions of
this Agreement,
or (ii) result from, or arise out of, any breach of a representation,
warranty or covenant by Purchaser in this Agreement or in
any conveyance
document or agreement executed by Purchaser. If this Agreement
is assigned
to multiple Purchasers, then each such Purchaser shall only
be liable
under this Section 13(a) for matters relating to that portion
of the
Property it purchases.
|
| b. |
Seller
shall and hereby does indemnify Purchaser against, and agrees
to defend
and hold Purchaser harmless from, any and all third party
obligations,
losses, liabilities, claims, suits, debts, accounts, liens
and
encumbrances and all costs and expenses, including reasonable
attorney’s
fees relating thereto, that Purchaser may suffer or incur
and that (i)
result from or relate to the Property prior to the Closing
Date and/or
Seller’s ownership or operation thereof prior to the Closing Date,
(ii)
relate in any way to the Excluded Liabilities, or (iii) result
from, or arise out of, any breach of a representation, warranty
or
covenant by Seller in this Agreement or in any conveyance
document or
agreement executed by Seller.
Each Seller shall only be liable under this Section 13(b)
for matters
relating to that portion of the Property it
owns.
|
| c. |
The
provisions of this Section 13 shall survive the Closing and
any earlier
termination of this Agreement.
|
| a. |
In
the event the purchase and sale of the Property is not consummated
because
of default by Purchaser (willful or otherwise) or in the
event of any
other breach or default by Purchaser hereunder, then Seller
may, as its
sole and exclusive remedy, terminate this Agreement and receive
the
Xxxxxxx Money as liquidated damages for Purchaser's breach,
Seller and
Purchaser hereby acknowledging that the actual damages incurred
by Seller
would be difficult if not impossible to
accurately
|
measure,
that the Xxxxxxx Money constitutes a reasonable estimation of said
damages and
that the Xxxxxxx Money is not intended as a penalty. In such event,
neither
party hereto shall have any further rights, duties or obligations hereunder
(other than the obligations hereunder which expressly are to survive
the Closing
or any earlier termination of this Agreement), all other damages and
remedies,
legal or equitable, being hereby waived by Seller.
| b. |
In
the event of a default hereunder by Seller, Purchaser shall
transmit
written notice of such default to Seller and Seller shall
have ten (10)
days from receipt of such notice to cure such default. Should
Seller fail
to timely cure such default, and provided all conditions
precedent to
Seller’s performance hereunder have been fully satisfied, Purchaser
shall
be entitled, as its sole and exclusive remedy, to either
(i) a return of
the Xxxxxxx Money, in which event this Agreement shall be
terminated and
neither party shall have any further rights, duties or obligations
hereunder (other than the obligations hereunder which expressly
are to
survive the Closing or any earlier termination of this Agreement),
all
other damages and remedies, legal or equitable, being hereby
waived by
Purchaser, or (ii) enforce specific performance of
this Agreement if
and only if Purchaser complies with all of the conditions
set forth in the
following sentences. Notwithstanding any provision in this
Agreement to
the contrary, it is specifically agreed and understood that
Purchaser will
not have the right to enforce specific performance of Seller’s obligations
under this Agreement or to place a lis pendens on the Property
or
otherwise encumber the Property in any way until and unless:
(1) Purchaser
timely tenders full performance under this Agreement by delivering
to the
Title Company, on or before the Closing Date, fully executed
originals of
all documents required to be executed by Purchaser under
the terms and
provisions of this Agreement, together with evidence which
is satisfactory
to demonstrate Purchaser’s ability to close the purchase of the Property
under this Agreement, which evidence shall consist of cash
or an
“Acceptable Financing Commitment” (hereinafter defined) or a combination
of cash and an Acceptable Financing Commitment in a total
amount
sufficient to cover the Consideration plus all expenses which
are required
to be paid by Purchaser under the terms and provisions of
this Agreement;
(2) despite such tender of full performance by Purchaser
at the Closing,
Seller fails or refuses to close the transaction evidenced
by this
Agreement; and (3) Purchaser institutes, within thirty (30)
days after the
scheduled date for Closing, an action in a court with jurisdiction
and in
the venue specified under this Agreement (the "Court"), seeking
to enforce
specific performance of Seller’s obligations under this Agreement.
Purchaser will be considered to have provided an “Acceptable Financing
Commitment” if Purchaser provides evidence which the Court determines
is
adequate to establish that Purchaser had, at the time for
the Closing, a
written financing commitment which was: (x) issued by a lending
institution which had adequate financial strength and adequate
readily
available funds to satisfy its obligations under the financing
commitment;
and (y) was in a form and with content providing adequate
assurance of
availability of funds for the Closing of the Property and
was not subject
to any material conditions or material requirements which
remained
unsatisfied, other than the consummation of the Closing under
this Agreement.
|
| c. |
Should
either party employ an attorney to enforce any provisions
of this
Agreement or any other document executed by such party in
connection
herewith, or to recover the Xxxxxxx Money, the non-prevailing
party in any
such action shall pay to the prevailing party all reasonable
attorney's
fees expended or incurred by the prevailing party in connection
therewith.
The provisions of this Section 14 shall survive the Closing
or any earlier
termination of this Agreement.
|
15. Real
Estate Commissions.
Seller
and Purchaser acknowledge and agree that CB Xxxxxxx Xxxxx, Inc. (“CBRE”) is the
only broker which may be entitled to a brokerage commission in connection
with
this Agreement and the transactions contemplated hereby; provided,
however,
nothing contained in this Agreement shall constitute any right or basis
of CBRE
to claim a brokerage commission against Seller or Purchaser in connection
with
the transactions contemplated by this Agreement (CBRE acknowledging
and agreeing
that same must be based upon a written document signed by Seller which
is
separate and distinct from this Agreement). At the Closing and only
to the
extent that the Closing occurs and subject to the terms of the separate
and
distinct writing referred to above, Seller agrees to pay any brokerage
commission claimed or asserted by CBRE in connection with the transactions
contemplated by this Agreement. Seller agrees to indemnify, defend
and hold
harmless Purchaser from and against any claim or assertion by CBRE
or any third
party for a brokerage commission or fee in connection with the transaction
contemplated by this Agreement unless same is based upon an agreement
or alleged
agreement (written or oral) (other than this Agreement) executed or
made by
Purchaser or any affiliate, subsidiary or parent entity or Purchaser.
Purchaser
agrees to indemnify, defend and hold harmless Seller from and against
any claim
or assertion by any third party for a brokerage commission or fee in
connection
with the transactions contemplated by this Agreement which is based
upon a
written or oral agreement or alleged agreement (other than this Agreement)
executed or made by Purchaser or any affiliate, subsidiary or parent
entity of
Purchaser. The obligations under this Section 15 shall survive the
Closing or
any earlier termination of this Agreement.
16. Notices.
All
notices, requests or permissions required or permitted to be given
to either
Purchaser or Seller under the terms of this Agreement shall be sufficient
if
they are in writing and (a) mailed registered or certified mail, return
receipt
requested, (b) delivered in person, (c) delivered by the facsimile
transmission,
provided that the facsimile is promptly confirmed by telephone, or
(d) delivered
by overnight delivery via a national courier service, as follows:
To
Purchaser:
ARC
Cypress, LLC
000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Chief Executive Officer
Facsimile
No.: (000) 000-0000
with
a
copy to:
Bass,
Xxxxx & Xxxx, PLC
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000-0000
Attn:
T.
Xxxxxx Xxxxx
Facsimile
No.: (000) 000-0000
To
Seller:
c/o
Cypress Senior Living, Inc.
Cypress
Real Estate Advisors, Inc.
000
Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xx. Xxxxxxx Xxxxxxxx
Phone:
000-000-0000
Facsimile
No.:
000-000-0000
with
a
copy to:
CB
Xxxxxxx Xxxxx, Inc.
000
X.
Xxxxxxxx, Xxxxx 0000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attention:
Xx. Xxxx Xxxxxxx
Phone:
000-000-0000
Facsimile
No.: 000-000-0000
with
a
copy to:
Xxxxx
X.
Xxxxxxxx
Xxxxx
Xxxxxxx & Xxxx LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Phone:
000-000-0000
Facsimile
No.: 000-000-0000
Mailed
notices shall be deemed delivered and effective three (3) days following
the
date when placed in the United States mail, certified or registered
mail, return
receipt requested, postage prepaid, as evidenced by a valid postmark.
Notices
delivered by (i) personal delivery shall be effective upon delivery,
(ii)
overnight delivery shall be effective one (1) business day thereafter,
or (iii)
facsimile transmission shall be effective when sent.
17. Assignment.
Purchaser shall not have the right to assign or otherwise transfer
its interest
in this Agreement without the prior written consent of Seller; provided,
however, that Purchaser may assign this Agreement to a partnership
or limited
liability company in which Purchaser or an affiliate or Purchaser is
the manager.
In such event, and in the event of any other approved assignment, such
assignee
shall assume in writing all of the obligations of Purchaser under this
Agreement.
18. Effective
Date.
The
"Effective Date" of this Agreement shall be January 31, 2006. Execution
hereof
by Purchaser alone shall constitute only an offer to purchase. Upon
execution of
this Agreement by an authorized representative of Seller, after the
execution by
Purchaser and delivery of a fully executed copy hereof to Purchaser,
this
document shall become a binding Agreement.
| a. |
| b. |
Time
is of the essence as to all matters contained in this
Agreement.
|
| c. |
If
the final day of any time period or limitation set out in
any provision of
this Agreement falls on a Saturday, Sunday or legal holiday
recognized by
the United States government or the State of Texas, then
and in such event
the time of such period or limitation shall be extended to
the next day
which is not a Saturday, Sunday or such legal
holiday.
|
| d. |
This
Agreement may be executed in any number of counterparts,
each of which,
when executed and delivered, shall be an original, but such
counterparts
shall together constitute one and the same
instrument.
|
| e. |
This
Agreement may not be modified or amended except by a subsequent
agreement
in writing signed by both Seller and Purchaser. Purchaser
and Seller may,
in their sole and absolute discretion, waive any of the conditions
herein
or any of the obligations of the other party hereunder, but
any such
waiver shall be effective only if in writing and signed by
the party
waiving such condition or
obligation.
|
| f. |
Except
as otherwise set forth in Section 17 hereof, this Agreement
shall be
binding upon and inure to the benefit of the parties hereto
and their
respective heirs, beneficiaries, successors, legal representatives
and
assigns.
|
| g. |
This
Agreement, including the exhibits, schedules, and attachments
attached
thereto (all of which shall be deemed incorporated into this
Agreement by
reference), constitutes the entire agreement and understanding
between the
parties hereto and supersedes all prior and contemporaneous
agreements and
understandings of the parties in connection therewith. No
statements,
agreements or understandings, representations, warranties
or conditions
not expressed in this Agreement shall be binding upon the
parties hereto,
or shall be effective to interpret, change or restrict the
provisions of
this Agreement unless such is in writing signed by the party
against whom
enforcement thereof is sought.
|
| h. |
If
any provision of this Agreement or application to any party
or
circumstances shall be determined by any court of competent
jurisdiction
to be invalid and unenforceable to any extent, the remainder
of this
Agreement or the application of such provision to such person
or
circumstances, other than those as to which it is so determined
invalid or
unenforceable, shall not be affected thereby, and each provision
hereof
shall be valid and shall be enforced to the fullest extent
permitted by
law.
|
| i. |
The
captions in this Agreement are inserted only as a matter
of convenience
and for reference and in no way define, limit or describe
the scope of
this Agreement or the scope or content of any of its provisions.
|
| j. |
All
exhibits described herein and attached hereto are fully incorporated
into
this Agreement by this reference for all
purposes.
|
| k. |
The
parties acknowledge that their attorneys have reviewed and
revised this
Agreement and that the normal rule of construction to the
effect that any
ambiguities are to be resolved against the drafting party
shall not be
employed in the interpretation of this Agreement or any amendments
or
exhibits hereto.
|
| l. |
This
Agreement shall not be recorded by Purchaser. Should Purchaser
record or
cause a copy of this Agreement to be recorded, the same shall
constitute
an event of default by Purchaser, whereupon this Agreement
shall terminate
and the Xxxxxxx Money shall be forfeited to
Seller.
|
| m. |
The
obligations and undertakings of the parties hereto shall
be performed
within the time specified, and failure to perform within
such time shall
constitute an event of default on the part of the party which
fails to
perform.
|
| n. |
Purchaser
recognizes, understands and agrees that pursuant to this
Agreement it will
become aware of certain confidential information regarding
Seller and the
ownership and operation of the Property. Purchaser agrees
that, except in
connection with a proceeding before a court of competent
jurisdiction or
other governmental or quasi governmental entity or as required
by
applicable law, it shall not disclose any such information
to any third
party or parties except to agents, employees or independent
contractors
advising or assisting Purchaser with the transaction contemplated
hereby,
potential or actual investors, potential and actual lenders
of all or a
portion of the Consideration and as otherwise expressly allowed
pursuant
to the terms and provision of this Agreement.
|
| o. |
Purchaser
acknowledges that it shall be responsible for confirming
the availability
of, and obtaining, any and all utility capacity, water, wastewater,
stormwater drainage, stormwater detention and sanitary stormwater
required
for the operation of the Property.
|
| p. |
Either
party may consummate the purchase or sale (as applicable)
of the Property
as part of a so-called like kind exchange (an “Exchange”) pursuant to §
1031 of the Internal Revenue Code of 1986, as amended (the
“Code”),
provided that: (a) the Closing shall not be delayed or affected
by reason
of the Exchange nor shall the consummation or accomplishment
of an
Exchange be a condition precedent or condition subsequent
to the
exchanging party’s obligations under this Agreement; (b) the exchanging
party shall effect its Exchange through an assignment of
this Agreement,
or its rights under this Agreement, to a qualified intermediary;
(c)
neither party shall be required to take an assignment of
the purchaser
agreement for relinquished or replacement property or be
required to
acquire or hold title to any real property for purposes of
consummating an
Exchange desired by the other party; and (d) the exchanging
party shall
pay any additional costs that would not otherwise have been
incurred by
the non-exchanging party had the exchanging party not consummated
the
transaction through an Exchange. Such right and option shall
be applicable
to all or any portion of the Property. Neither party shall
by this
Agreement or acquiescence to an Exchange desired by the other
party have
its rights under this Agreement affected or diminished in
any manner or be
responsible for
|
compliance
with or be deemed to have warranted to the exchanging party that its
Exchange in
fact complies with § 1031 of the Code.
| q. |
Except
as required by applicable law, the parties (which for purposes
of this
Section 19(q) shall include any brokers referenced in Section
15 above)
hereby agree that there shall be no public announcement or
disclosure of
this Agreement or the transactions contemplated hereby without
the mutual
consent of Seller and Purchaser as to the form, content,
manner and timing
of such disclosure; provided, however, that the foregoing
shall not apply
to disclosures by Purchaser to: (i) potential lenders; (ii)
potential
tenants or purchasers of all or any portion of the property;
or (iii) any
representatives, agents or advisers of Purchaser; provided,
further, that
the foregoing shall not apply to disclosures by Seller to:
(i) any
representatives, contractors, agents or advisers of Seller.
The provisions
of this Section 19(q) shall survive the Closing or any earlier
termination
of this Agreement.
|
| r. |
Nothing
in this Agreement shall be construed or interpreted to impose
any
responsibility or liability on Purchaser to any third parties,
whether as
a successor to Seller or under any other legal or equitable
principle, for
any negligent or tortious acts or omissions of Seller, its
lessees,
managers, operators or employees, prior to the Closing Date.
Seller shall
retain any and all liability and responsibility to third
parties for its
negligent and tortious acts or omissions prior to the Closing
Date.
Nothing in this Agreement shall be construed or interpreted
to impose any
responsibility or liability on Seller to any third parties,
whether as a
prior owner or under any other legal or equitable principle,
for any
negligent or tortious acts or omissions of Purchaser, its
lessees,
managers, operators or employers, on or after the Closing
Date. Purchaser
shall retain any and all liability and responsibility to
third parties for
its negligent and tortious acts or omissions on or after
the Closing Date.
|
[signatures
follow on next page]
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of
the date set forth below, but shall be effective as of the Effective
Date.
TRACT
ONE SELLER:
TOWN
VILLAGE LEAWOOD, LLC,
a
Delaware limited liability company
By:
Cypress
Senior Limited Partnership,
a
Delaware limited partnership
Managing
Member
By:
Cypress
Senior Living Partner, Inc.,
a
Maryland corporation
General
Partner
By:___________________________________
Name:________________________________
Title:_________________________________
TRACT
TWO SELLER:
TOWN
VILLAGE ARLINGTON, L.P.,
a
Delaware limited partnership
By:
Cypress
Senior Living Partner, Inc.,
a
Maryland corporation
General
Partner
By:___________________________________
Name:________________________________
Title:_________________________________
TRACT
THREE SELLER:
TOWN
VILLAGE DALLAS, L.P.,
a
Delaware limited partnership
By:
Cypress
Senior Living Partner, Inc.,
a
Maryland corporation
General
Partner
By:___________________________________
Name:________________________________
Title:_________________________________
TRACT
FOUR SELLER:
TOWN
VILLAGE FT. WORTH, L.P.,
a
Delaware limited partnership
By:
Cypress
Senior Living Partner, Inc.,
a
Maryland corporation
General
Partner
By:___________________________________
Name:________________________________
Title:_________________________________
BROKER:
CB
Xxxxxxx Xxxxx, Inc.
By:__________________________________
Name:_______________________________
Title:________________________________
PURCHASER:
ARC
Cypress LLC,
a
Tennessee limited liability company
By:___________________________________
Name:________________________________
Title:_________________________________
Date:__________________________,
2006
The
undersigned, as escrow agent, hereby acknowledges receipt of a fully
executed
original of this Agreement. In the event the Xxxxxxx Money to be held
by the
undersigned in accordance with the terms of this Agreement is not received
on or
before the Close of Business on any date when the same is due and owing,
the
undersigned agrees to notify each of the parties hereto.
TEXAS
UNITED TITLE, INC.
By:__________________________________
Name:________________________________
Title:_________________________________
Date:_________________________________
DESCRIPTION
OF THE PROPERTY
Tract
One: a tract of land described in Exhibit “A-1” attached hereto. Consideration
Allocation: $35,253,190
Tract
Two: a tract of land described in Exhibit “A-2” attached hereto. Consideration
Allocation: $25,613,180
Tract
Three: a tract of land described in Exhibit “A-3” attached hereto. Consideration
Allocation: $58,464,430
Tract
Four: a tract of land described in Exhibit “A-4” attached hereto. Consideration
Allocation: $26,955,700
EXCEPTIONS
TO WARRANTIES AND REPRESENTATIONS
| 1. |
Roof
and truss repair at Town Village Ridgmar in Ft. Worth
(Seller agrees that the costs of such repairs, which are
estimated to be
$187,000 in the aggregate, are the responsibility of, and
will be paid by,
Seller, whether such repairs are completed before or after
the Closing
Date. If such repairs are not completed by the Closing Date,
Purchaser
shall be entitled to reasonable assurances that the unpaid
costs to
complete such repairs will be paid by Seller.)
|
| 2. |
Town
Village North - Emergency call system "dead zones." The cost
of any work,
if any, necessary to remedy such "dead zones" shall be the
responsibility
of, and will be paid by, Purchaser.
|
SPECIAL
WARRANTY DEED
THAT,
______________________________, a __________ corporation ("Grantor"),
for and in
consideration of the sum of Ten and No/100ths Dollars ($10.00) in hand
paid to
Grantor by _____________________________, a ________________ ________________
("Grantee"), the receipt of which is hereby acknowledged by Grantor,
and other
good and valuable consideration paid and agreed and secured to be paid
to
Grantor by Grantee in the manner set forth below, the sufficiency of
which
consideration is hereby acknowledged by Grantor, has GRANTED, BARGAINED,
SOLD,
and CONVEYED and by these presents does GRANT, BARGAIN, SELL, and CONVEY
unto
said Grantee, its successors and assigns, subject to the Permitted
Exceptions
described below, all of that certain real property located in __________
County,
Texas, more particularly described on Exhibit A attached hereto, and
all of
Grantor's right, title and interest, if any, in and to all easements,
tenements,
hereditaments, privileges and appurtenances in any way belonging to
the
foregoing (collectively, the "Appurtenances"), including, without limitation,
(i) any land to the midpoint of the bed of any highway, street, road
or avenue,
open or proposed, in front of, abutting or adjoining such land, (ii)
any land
lying in or under the bed of any creek, stream, bayou or river running
through,
abutting or adjacent to such land, (iii) any riparian, appropriative,
or other
water rights of Grantor appurtenant to such land and relating to surface
or
subsurface waters, (iv) any oil, gas or other minerals or mineral rights
relating to such land or to the surface or subsurface thereof which
are owned by
Seller, (v) any strips, gores or pieces of property abutting, bounding
or which
are adjacent or contiguous to such land, and (vi) all easements, right-of-ways,
rights of ingress or egress and reversionary interests benefiting such
land (all
such land, water rights, mineral rights, easements and other appurtenant
rights
being herein referred to collectively as the "Property").
This
conveyance is made by Grantor and accepted by Grantee expressly subject
to those
matters more particularly described on Exhibit B attached hereto and
incorporated herein for all purposes (the "Permitted Exceptions"),
to the
extent, but only to the extent, the same are valid and subsisting and
affect the
Property.
TO
HAVE
AND TO HOLD the Property, together with all and singular the rights
and
appurtenances thereto in anywise belonging, unto Grantee, its successors
and
assigns forever; and, subject to the above described Permitted Exceptions,
Grantor does hereby bind itself and its successors, to WARRANT AND
FOREVER
DEFEND all and singular the Property unto Grantee, its successors and
assigns,
against every person whomsoever lawfully claiming or to claim the same
or any
part thereof by, through or under Grantor, but not otherwise. Notwithstanding
anything contained herein to the contrary, however, with respect to
the
Appurtenances,
Grantor is hereby only granting, bargaining, selling and conveying
all of
Grantor’s right, title and interest in and to the same without warranty (whether
statutory, express or implied).
This
Deed
is delivered pursuant to that certain Purchase and Sale Agreement dated
____________, 200__ (the “Purchase Agreement”).
EXCEPT
AS
OTHERWISE SET FORTH HEREIN OR IN THE PURCHASE AGREEMENT,
GRANTOR
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE
NATURE AND
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND
GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND
ALL
ACTIVITIES AND USES WHICH GRANTEE MAY ELECT TO CONDUCT THEREON, AND
THE
EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS THEREON (INCLUDING
THE
PRESENCE OF ASBESTOS) OR COMPLIANCE WITH APPLICABLE LAWS, RULES OR
REGULATIONS;
(ii) EXCEPT
FOR ANY WARRANTIES OF TITLE CONTAINED IN THIS DEED, THE
NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE,
LICENSE, RESERVATION, CONDITION OR OTHERWISE; AND (iii) THE COMPLIANCE
OF THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS
OF ANY
GOVERNMENTAL OR OTHER BODY. GRANTEE ACKNOWLEDGES THAT IT HAS INSPECTED
THE
PROPERTY AND IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT
ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR. GRANTEE FURTHER
ACKNOWLEDGES THAT ITS INFORMATION WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM
A VARIETY OF SOURCES, AND GRANTOR (x) HAS NOT MADE ANY INDEPENDENT
INVESTIGATION
OR VERIFICATION OF SUCH INFORMATION; AND (y) DOES NOT MAKE ANY REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE SALE OF
THE PROPERTY
AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE IS" BASIS AND
"WITH ALL
FAULTS", AND GRANTEE EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION
OF THE DEEDS
OF GRANTOR HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN, GRANTOR MAKES
NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION
OF LAW,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
IN RESPECT
OF THE PROPERTY.
Real
estate ad valorem taxes and all other taxes, assessments and standby
fees
against the Property for the year 20____ have been prorated between
Grantor and
Grantee as of the date hereof, and by Grantee’s acceptance of this deed, Grantee
assumes and agrees to pay prior to delinquency thereof such ad valorem
taxes.
EXECUTED
on this the ___ day of ____________, 20__, but effective for all purposes
as of
______________, 20__.
GRANTOR:
________________________________,
a
_____________________
By:_______________________________
Name:_____________________________
Title:______________________________
Address
of Grantee:
_______________________________
_______________________________
_______________________________
| THE STATE OF TEXAS | § |
|
§
|
| COUNTY OF _________ | § |
This
instrument was acknowledged before me on _______________________, by
______________, _________ of _____________________, a________________,
on behalf
of said __________________.
____________________________
Notary
Public in and for the
State
of
___________
My
Commission Expires:________
EXHIBIT
A
TO
SPECIAL WARRANTY DEED
Legal
Description
EXHIBIT
B
TO
SPECIAL WARRANTY DEED
Permitted
Exceptions
1. Any
discrepancies, conflicts or shortages in area or boundary lines, or
any
encroachments, or any overlapping of improvements, and all other matters
that a
true, correct and complete survey would reveal.
2. Taxes
and
assessments for current and subsequent years not yet due and payable
and
subsequent assessments for the current and prior years due to a change
in land
usage or ownership.
3. [Others
to conform to final Title Commitment]
XXXX
OF SALE AND ASSIGNMENT
| THE STATE OF _________ | § |
|
§
|
KNOW
ALL PERSONS BY THESE PRESENTS:
|
| COUNTY OF _________ | § |
THAT
_________________________, a ____________ ("Grantor"), for an in consideration
of the sum of Ten and No 100ths Dollars ($10.00) cash and other good
and
valuable consideration paid to Grantor by __________________________,
a
______________ ___________________ ("Grantee"), the receipt and sufficiency
of
which are hereby acknowledged, has granted, sold, and conveyed, and
by these
presents does grant, sell, and convey unto Grantee, its successors
and assigns,
the following (collectively, the “Assigned Property”):
[Conform
to finalized APA]
1. Personal
Property.
All
items of furniture, fixtures, vehicles, buses, equipment and tangible
personal
property owned by Grantor and located on or within or used in connection
with
the ownership or operation of the improvements located on that certain
real
property located in ____________ County, ______________ consisting
of
________________ acres, more or less, comprised of the parcel more
particularly
described on Exhibit A attached hereto and incorporated herein (such
land and
improvements being collectively referred to herein as the "Project,"
and all of
such items and personal property being collectively referred to herein
as the
"Personal Property");
2. Leases.
All of
Grantor's right, title and interest as lessor or landlord in and under
all
leases, occupancy agreements, residency agreements and licenses agreements
granting possessory rights in, on or covering the Project (the "Leases"),
which
leases and agreements are more particularly described on Exhibit B
attached
hereto;
3. Property
Agreements.
All of
the Grantor's right, title and interest as owner of the Project, to
the extent
Grantor's interest is assignable, in and to the agreements relating
to the
ownership, use, membership, leasing, management, advertising, security,
maintenance, construction or operation of the Project or the Personal
Property,
which agreements are more particularly described on Exhibit C attached
hereto
and incorporated herein (the "Property Agreements");
4. Intangibles.
To the
extent assignable and relating solely to the ownership, development,
use or
projected use, maintenance or operation of the Project, Personal Property,
Leases or Property Agreements, all of Seller's right, title and interest
in and
to all (i) plans, models, drawings, specifications, surveys, engineering
reports
and other technical descriptions or materials that are in the possession
of
Grantor or its representatives (the "Plans"); (ii) warranties, guaranties,
indemnities and claims (the "Warranties"); (iii) certificates
of occupancy, certificates of compliance (including those relating
to compliance
by the Project with all laws, rules and regulations governing access
for the
handicapped), licenses,
permits, franchises and similar rights issued by any federal, state
or municipal
authority and issued solely for the benefit of the Project or improvements
to be
constructed on the above-described land (the "Permits"); (iv)
rights
to use the name “Town Village” for the Project only;
and (v)
all
other
claims or causes of action (the "Intangibles"); and
5. Miscellaneous.
To the
extent assignable, all of Grantor's right, title and interest in, if
any, any
other tangible or intangible asset of any kind or nature primarily
used in
connection with the ownership or operation of the Property or the Improvements
that is not specifically identified as an Excluded Asset.
Capitalized
terms used but not otherwise defined herein shall have the meanings
ascribed
thereto in that certain Purchase and Sale Agreement among Grantor (and
others),
as Seller, and Grantee, as Purchaser, with an effective date of January
__,
2006.
TO
HAVE
AND TO HOLD the Personal Property, Leases, Property Agreements, Plans,
Warranties, Permits, and Intangibles, together with all and singular
the rights
and appurtenances thereto in anywise belonging, unto the said Grantee,
its
successors and assigns, forever, and Grantor does hereby bind itself
and its
successors to WARRANT and FOREVER DEFEND title to the Personal Property,
Leases,
Property Agreements, Plans, Warranties, Permits and Intangibles unto
said
Grantee, its successors and assigns, against the lawful claims of any
and all
persons lawfully claiming or to claim the same or any part thereof.
This
transfer is made subject only to the liens, encumbrances, and security
agreements affecting the Project and/or Grantor's interest in the Project
set
forth on Exhibit D attached hereto and made a part hereof.
GRANTOR
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE
NATURE AND
CONDITION OF THE ASSIGNED PROPERTY, INCLUDING WITHOUT LIMITATION, THE
SUITABILITY THEREOF OR COMPLIANCE WITH ALL APPLICABLE LAWS, RULES OR
REGULATIONS; (ii) EXCEPT FOR ANY WARRANTIES OF TITLE CONTAINED IN THIS
XXXX OF
SALE, THE NATURE AND EXTENT OF ANY LEASE, POSSESSION, LIEN, ENCUMBRANCE,
LICENSE, RESERVATION, CONDITION OR OTHERWISE; AND (iii) THE COMPLIANCE
OF THE
ASSIGNED PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS
OF
ANY GOVERNMENTAL OR OTHER BODY. GRANTEE ACKNOWLEDGES THAT IT HAS INSPECTED
THE
ASSIGNED PROPERTY AND IS RELYING SOLELY ON ITS OWN INVESTIGATION OF
THE ASSIGNED
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR.
GRANTEE FURTHER ACKNOWLEDGES THAT ITS INFORMATION WITH RESPECT TO THE
ASSIGNED
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES, AND GRANTOR (x) HAS
NOT MADE
ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION;
AND (y) DOES
NOT MAKE ANY REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH
INFORMATION. THE SALE OF THE ASSIGNED PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON
AN "AS IS," "WHERE IS" BASIS AND "WITH ALL FAULTS", AND GRANTEE EXPRESSLY
ACKNOWLEDGES THAT, IN CONSIDERATION OF THE DEEDS OF GRANTOR HEREIN,
EXCEPT AS
OTHERWISE SPECIFIED HEREIN, GRANTOR MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS
OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED
TO, ANY
WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, TENANTABILITY
OR FITNESS
FOR A PARTICULAR PURPOSE, IN RESPECT OF THE ASSIGNED
PROPERTY.
IN
WITNESS WHEREOF, Grantor has executed this Xxxx of Sale and Assignment
as of the
_____ day of ___________, 20__.
GRANTOR:
___________________________________
,
a
_______________________
By:_________________________________
Name:______________________________
Title:_______________________________
| THE STATE OF TEXAS | § |
|
§
|
| COUNTY OF _________ | § |
This
instrument was acknowledged before me on _______________________, by
______________, ____________ of _________________, a _________________,
on
behalf of said ______________.
_______________________________
Notary
Public in and for the
State
of
____________
My
Commission Expires:_________
EXHIBIT
A
TO
XXXX OF SALE AND ASSIGNMENT
(a) Legal
Description
EXHIBIT
B
TO
XXXX OF SALE AND ASSIGNMENT
(b) Leases
EXHIBIT
C
TO
XXXX OF SALE AND ASSIGNMENT
Property
Agreements
EXHIBIT
D
TO
XXXX OF SALE AND ASSIGNMENT
Permitted
Encumbrances
(to
follow upon review of Title Commitments)
Property
Information
Financial
Information
Monthly
Income Statements (Trailing 12 months)
Current
Tenant Rent Rolls (“Rent Roll”)
Property
Tax Annual Assessments/Property Tax Amounts
Accounts
Receivable Listing
Utility
Account Numbers/Deposits
Property
General
Information (i.e., address, construction dates, site data, square
footage)
Floorplans
Apartment
Mix/List of Combined Units
Title
Commitments
Existing
Surveys
Operations
Residency
Agreements (sample)
Monthly
Billing Statement (sample)
Major
Service Contracts/Warranty Agreements
(with
Brookdale, or with Seller)
Capital
Leases
Licenses,
Permits and Registrations
Governmental
Notices
Certificates
of Occupancy
Marketing
Marketing
Brochure
Current
Marketing Rents
Monthly
Occupancy History (2002-2005 YTD)
Analysis/Map
of Surrounding Competition
Market
Demographic Overview
Environmental
Existing
Environmental Reports (if available)
Existing
Geotechnical Reports (if available)
Other
Description
of Existing Insurance Coverage
Listing
of Pending Litigation
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