EXHIBIT 10.39
Purchase and Sale Agreement between
CNL Retirement Corp., as Buyer, and
Homewood at Brookmont Terrace, LLC, as Seller,
relating to the Homewood Residence at Brookmont Terrace - Nashville Tennessee
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL RETIREMENT CORP.
a Florida corporation,
as BUYER
and
HOMEWOOD AT BROOKMONT TERRACE, LLC,
a Tennessee limited liability company,
as SELLER
Premises: Homewood at Brookmont Terrace, City of Nashville,
Davidson County, Tennessee
(Tenant: Homewood at Brookmont Terrace, LLC)
TABLE OF CONTENTS
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Page
1. Definitions.....................................................1
2. Purchase and Sale of Premises...................................3
3. Purchase Price for Premises.....................................3
4. Closing Date....................................................3
5. Conditions to Buyer's Obligation to Close.......................3
6. Deliveries at Closing...........................................7
7. Closing and Other Costs, Adjustments and Prorations.............8
8. Inspections.....................................................9
9. Title to Premises; State of Title to be Conveyed................9
10. INTENTIONALLY OMITTED...........................................9
11. Covenants, Representations and Warranties......................10
12. Covenants of Seller Pending Closing............................11
13. Eminent Domain.................................................12
14. Casualty.......................................................12
15. Remedies Upon Default..........................................12
16. Notices........................................................13
17. Brokerage Commissions..........................................14
18. Miscellaneous Provisions.......................................14
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 HOMEWOOD
AT BROOKMONT TERRACE, LLC, a Tennessee limited liability company, having a
mailing address at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000
("Seller"), and CNL RETIREMENT CORP., a Florida corporation, having a mailing
address at CNL Center at City Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Nashville, Davidson County,
Tennessee, 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. Definition
-------------
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) Intentionally Omitted.
(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 Lawyers Title Insurance Corporation,
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 92
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 EIGHT MILLION NINE HUNDRED
FIFTY-SEVEN THOUSAND EIGHT HUNDRED FIFTY AND NO/100 DOLLARS ($8,957,850.00).
(v) "Seller's Reimbursement" shall mean the fixed sum of
$57,850.00, 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 Seller in its capacity as tenant under the
Lease.
(x) "Title Company" shall mean Lawyers Title Insurance Corporation,
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, 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 October ___, 2002 (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 xxxx (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
this Section 5.(a).
(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 this Section 5.(a).
(x) Buyer and Tenant shall have approved the Plans which
Seller is required to furnish to Buyer pursuant to this Section 5.(a).
(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
this Section 5.(a), 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 this Section 5.(a).
(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 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, or cause to be delivered, 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;
(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 xxxx 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.
(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 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. INTENTIONALLY OMITTED.
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, conditions of approval or
permitting, 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, Buyer makes the following covenants, agreements, representations
and warranties, all of which shall survive the Closing and the purchase and sale
of the Premises:
(1) Buyer is a corporation duly organized and validly existing
and in good standing under the laws of the State of Florida. Buyer has all
requisite power and authority under the laws of the State of Florida and its
charter documents to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(2) Buyer has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and upon the execution
and delivery hereof, this Agreement shall constitute the valid and binding
agreement of Buyer.
12. Covenants of Seller Pending Closing.
----------------------------------------
Between the date hereof and the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon 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 xxxxx rent or terminate the Lease, then, at
Buyer's option, buyer may terminate this Agreement, whereupon all parties shall
thereupon be relieved of all further liability hereunder. If such condemnation
would not otherwise give Tenant the option to reduce or xxxxx rent or terminate
the Lease, or if it gives Tenant such option and Tenant waives such option in
writing, then Seller will promptly commence the reconstruction and the parties
shall proceed with the Closing in accordance with, and subject to, the terms
hereof.
14. Casualty.
----------
If prior to the date of the Closing the Premises, or any portion
thereof, shall be damaged or destroyed by reason of fire, storm, accident or
other casualty, then Seller shall immediately give notice thereof to Buyer. If
such casualty would otherwise give Tenant the option to reduce or xxxxx rent or
terminate the Lease, then Buyer, at its option, may terminate this Agreement,
whereupon all parties shall thereupon be relieved of all further liability
hereunder. If such casualty would not otherwise give Tenant the option to reduce
or xxxxx rent or terminate the Lease, or if it gives Tenant such option and
Tenant waives such option in writing, then the parties shall proceed with the
Closing in accordance with, and subject to the terms hereof. In such event, all
such proceeds of any insurance plus the amount of any deductible (which shall be
paid by Seller) will be applied toward reconstruction.
15. Remedies Upon Default.
-----------------------
(a) In the event Buyer breaches or defaults under any of the terms
of this Agreement prior to or on the Closing Date, the sole and exclusive remedy
of Seller shall be to terminate this Agreement.
(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)
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: Homewood at Brookmont Terrace, LLC
000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Mr. Xxxxxx Xxxxx, Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx., Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: T. Xxxxxx Xxxxx, Esquire
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Buyer: CNL Retirement Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Operating Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Lowndes, Drosdick, Doster, Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esquire
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent: Lawyers Title Insurance Corporation
--------------------------------------
--------------------------------------
Attn:
--------------------------------
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. 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 - AM/TENNESSEE LP,
a Delaware limited partnership
By: CNL Retirement - GP/Tennessee Corp., a
Delaware corporation, general partner
By:/s/ Xxxxxxx X. Xxxx
----------------------
Date: 10/30/02
-----------
SELLER:
HOMEWOOD AT BROOKMONT
TERRACE, LLC, a Tennessee limited
liability company
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP - Finance, CFO, Secretary and
Treasurer
Date: 10/31/02
--------------
EXHIBIT A
DESCRIPTION OF PREMISES
-----------------------
[To be inserted]
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Ad valorem real property taxes and assessments for the year of Closing
and thereafter, and water, sewer and other assessments, if any, so long
as the foregoing are not yet due and payable.
2. The right of the Tenant to lease the Premises pursuant to the Lease.
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT E
INTENTIONALLY OMITTED
EXHIBIT F
INTENTIONALLY OMITTED
EXHIBIT G
INTENTIONALLY OMITTED
EXHIBIT H
ARCHITECT'S CERTIFICATE
, 2002
-----------
CNL Retirement Properties, Inc.
CNL Retirement Partners, LP
CNL Retirement GP Corp.
CNL Retirement LP Corp.
CNL Retirement GP/Holding Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
We are the architects for _________________________________________ in
connection with the construction of the freestanding senior living project known
as, (hereinafter referred to as the "Project"). In this capacity, we hereby
certify to you as follows:
1. We are duly licensed architects under the laws of the State of
________________ .
2. The undersigned has prepared or is familiar with the plans for the
Project described as follows:
Job No. ________________
Drawing Nos.: ________________
Dated: ________________
and related specifications therefor (the "Plans and
Specifications").
The Project has been completed in accordance with said Plans and
Specifications.
3. The Plans and Specifications have been prepared in accordance with,
and the Project has been constructed in compliance with (i) all
local building and zoning codes and other ordinances, laws, rules
and regulations imposed by all governmental authorities having
jurisdiction over the Project and (ii) all restrictive covenants of
record applicable to the Project. The elevation of all slabs for
the Project and the height of the improvements meets the
requirements of building permits for the same. All approvals
required by all governmental authorities having jurisdiction over
the Project have been obtained and such approvals are not based on
any real property or rights appurtenant thereto other than the
Project. All requirements contained in any soils reports,
compaction studies or soil borings tests have been complied with.
4. The Project has been designed such that, if properly operated, it
will not result in the direct or indirect emission into the
atmosphere of any substance (other than motor vehicle exhausts,
steam, water vapor and the emissions from natural gas or electric
comfort heating, ventilation and air conditioning systems).
5. The Project has been designed such that, if properly operated, it
will not result in the direct or indirect discharge of pollutants
into the waters of the State in which the Project is located (other
than contributions to the ______________ sanitary sewer system
serving the Project, provided, however, the foregoing is in
compliance with all applicable governmental regulations and no
further consents or approvals are required therefor).
6. The Project is substantially free of architectural barriers and is
otherwise in substantial compliance with the requirements of all
federal, state and local laws, statutes and ordinances relating to
accessibility by persons with disabilities, including, without
limitation, the Fair Housing Act, the Americans With Disabilities
Act and the respective regulations promulgated thereunder.
7. The Project and the ventilation systems contained therein have been
designed and constructed so as to minimize the possibility of an
accumulation of radon gas and other indoor contaminants within the
improvements, in accordance with all applicable laws, regulations
and guidelines.
8. The real property upon which the Project is located is currently
zoned ______ under applicable zoning ordinances of the
City of _________________, County of ________________,
State of ________________ .
9. We have examined all applicable materials relative to the types of
restrictions and requirements which relate to such zoning
classifications. The Project complies in all respects with such
zoning classification.
10. An unconditional certificate of occupancy, or other unconditional
certificates of appropriate governmental authorities evidencing
that all zoning, building and other applicable regulations have
been complied with, has been issued by the City of ______________,
County of ________________ , for the Project, and such
certificate(s) of occupancy remains in full force and effect as of
the date hereof.
11. This letter and certificate shall be binding upon the undersigned
and its successors and assigns, and shall inure to the benefit of
the addressees and their respective successors and assigns.
________________________________
By:____________________________
EXHIBIT I
CIVIL ENGINEER'S CERTIFICATE
----------------------------
_______ , 2001
CNL Retirement Properties, Inc.
CNL Retirement Partners, LP
CNL Retirement GP Corp.
CNL Retirement LP Corp.
CNL Retirement GP/Holding Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
We are the civil engineers for ________________in connection with the
construction of the freestanding senior living project known as ______________,
located in ________________, County of ________________, State
of ________________, (hereinafter referred to as the "Project"). In this
capacity, we hereby certify to you as follows:
1. We are duly licensed civil engineers under the laws of the
State of ________________ .
2. There are no civil engineering permits, licenses, authorizations,
consents approvals, orders, registrations or filings of any court,
governmental authority or public agency required for the Project
which have not been obtained, issued or granted and which do not,
as of the date hereof, remain in full force and effect as relates
to the engineering construction plans consisting of sheets ________
prepared by __________under Job No.____ dated ________________.
3. All sewage and other waste waters from the Project are disposed of
by a connection to the _____________ sanitary sewer system.
4. The construction of the Project did not involve the dredging of
materials from or the filling of materials in the waters of the
State in which the Project is located, or the United States, nor
has potable water been appropriated from any natural surface or
subsurface source, but rather has been and will be supplied by
_____________, and all connections to the water lines serving the
Project have been approved, inspected and accepted by
_______________.
5. All parking lot or other drains have been constructed in accordance
with all applicable permits and other governmental requirements and
with the approval, inspection and acceptance of ______________.
6. All utilities necessary for the operation of the Project in the
ordinary course of business are available to the Project without
payment of any charge, fee or other consideration except customary
"hook-up" or "tap" fees.
7. All stormwater drainage at the Project is retained on-site or
discharged into existing public rights-of-way or public stormwater
drainage easements dedicated to and accepted and maintained by
__________, all pursuant to permits and other governmental
authorizations which are valid, existing and in current full force
and effect.
8. No part of the Project comprises wetlands subject to the
jurisdiction of the U.S. Army Corps of Engineers, the U.S.
Environmental Protection Agency, or any other applicable
governmental authority.
9. This letter and certificate shall be binding upon the undersigned
and its successors and assigns, and shall inure to the benefit of
the addressees and their respective successors and assigns.
------------------------------
By:____________________________
