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EXHIBIT 10.19
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of the 18th day of March, 1999, by and between ARV ASSISTED LIVING,
INC., a Delaware corporation ("ARV"), and BELLA VITA ARV, INC., a Florida
corporation ("BVARV") (both of the foregoing being sometimes hereinafter
collectively referred to as "Sellers"), and ASPEN XXXXX XXXX, LLC, a Colorado
limited liability company ("Aspen Xxxxx Xxxx"), ASPEN BELLA VITA, LLC, a
Colorado limited liability company ("Aspen Bella Vita"), ASPEN XXXXXX TERRACE,
LLC, a Colorado limited liability company ("Aspen Xxxxxx Terrace"), ASPEN
WOODSIDE VILLAGE, LLC, a Colorado limited liability company ("Aspen Woodside
Village"), and ASPEN WYNDHAM LAKES, LLC, a Colorado limited liability company
("Aspen Wyndham Lakes") (all of the foregoing being sometimes hereinafter
collectively referred to as "Purchasers").
RECITALS
This Agreement is made with respect to the following facts:
A. ARV is the owner of that certain 122-unit retirement facility
commonly known as "Xxxxx Xxxx," located at 0000 Xxxx Xxxxxxxxx Xxxx, in the City
of Cincinnati, County of Xxxxxxxx, State of Ohio, consisting of (1) the real
property legally described in EXHIBIT A attached hereto (the "Xxxxx Xxxx Land"),
(2) all buildings and other improvements located on the Xxxxx Xxxx Land (the
"Xxxxx Xxxx Improvements"), and (3) those items of equipment and personal
property owned by ARV which are used in connection with the maintenance and
operation of the Xxxxx Xxxx Land and the Xxxxx Xxxx Improvements (the "Xxxxx
Xxxx Personal Property").
B. BVARV is the owner of that certain 114-unit retirement facility
commonly known as "Bella Vita," located at 0000 X. Xxxxxx Xxxxxx, in the City of
Venice, County of Sarasota, State of Florida, consisting of (1) the real
property legally described in EXHIBIT B attached hereto (the "Bella Vita Land"),
(2) all buildings and other improvements located on the Bella Vita Land (the
"Bella Vita Improvements"), and (3) those items of equipment and personal
property owned by BVARV or ARV which are used in connection with the maintenance
and operation of the Bella Vita Land and the Bella Vita Improvements (the "Bella
Vita Personal Property").
C. ARV is the owner of that certain 96-unit retirement facility commonly
known as "Xxxxxx Terrace," located at 00000 Xxxxxx Xxxx, in the County of
Henrico, State of Virginia, consisting of (1) the real property legally
described in EXHIBIT C attached hereto (the "Xxxxxx Terrace Land"), (2) all
buildings and other improvements located on the Xxxxxx Terrace Land (the "Xxxxxx
Terrace Improvements"), and (3) those items of equipment and personal property
owned by ARV which are used in connection with the maintenance and operation of
the Xxxxxx Terrace Land and the Xxxxxx Terrace Improvements (the "Xxxxxx Terrace
Personal Property").
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D. ARV is the owner of that certain 215-unit retirement facility
commonly known as "Woodside Village," located at 00000 Xxxxxxxx Xxxx, in the
City of Bedford, County of Cuyahoga, State of Ohio, consisting of (1) the real
property legally described in EXHIBIT D attached hereto (the "Woodside Village
Land"), (2) all buildings and other improvements located on the Woodside Village
Land (the "Woodside Village Improvements"), and (3) those items of equipment and
personal property owned by ARV which are used in connection with the maintenance
and operation of the Woodside Village Land and the Woodside Village Improvements
(the "Woodside Village Personal Property").
E. ARV is the owner of that certain 246-unit retirement facility
commonly known as "Wyndham Lakes," located at 00000 Xxx Xx. Xxxxxxxxx Xxxx, xx
xxx Xxxx xx Xxxxxxxxxxxx, Xxxxxx of Xxxxx, State of Florida, consisting of (1)
the real property legally described in EXHIBIT E attached hereto (the "Wyndham
Lakes Land"), (2) all buildings and other improvements located on the Wyndham
Lakes Land (the "Wyndham Lakes Improvements"), and (3) those items of equipment
and personal property owned by ARV which are used in connection with the
maintenance and operation of the Wyndham Lakes Land and the Wyndham Lakes
Improvements (the "Wyndham Lakes Personal Property").
F. Subject to and upon the terms and conditions set forth in this
Agreement, (1) ARV wishes to sell the Xxxxx Xxxx Property (hereinafter defined)
to Aspen Xxxxx Xxxx, and Aspen Xxxxx Xxxx wishes to acquire the Xxxxx Xxxx
Property, (2) BVARV wishes to sell the Bella Vita Property (hereinafter defined)
to Aspen Bella Vita, and Aspen Bella Vita wishes to acquire the Bella Vita
Property, (3) ARV wishes to sell the Xxxxxx Terrace Property (hereinafter
defined) to Aspen Xxxxxx Terrace, and Aspen Xxxxxx Terrace wishes to acquire the
Xxxxxx Terrace Property, (4) ARV wishes to sell the Woodside Village Property
(hereinafter defined) to Aspen Woodside Village, and Aspen Woodside Village
wishes to acquire the Woodside Village Property, and (5) ARV wishes to sell the
Wyndham Lakes Property (hereinafter defined) to Aspen Wyndham Lakes, and Aspen
Wyndham Lakes wishes to acquire the Wyndham Lakes Property.
AGREEMENT
In consideration of the mutual promises and agreements set forth below, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals and Exhibits. The Recitals set forth above and
the exhibits attached to this Agreement are hereby incorporated by this
reference.
2. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
2.1 "Xxxxx Xxxx Loan" shall mean that certain loan from Bank United to ARV
having an approximate principal balance of $3,500,000.
2.2 "Xxxxx Xxxx Property" shall mean, collectively, (a) the Xxxxx Xxxx Real
Property, (b) the Xxxxx Xxxx Personal Property, (c) ARV's right, title and
interest in and to all Contracts relating to the Xxxxx Xxxx Real Property
or the Xxxxx Xxxx Personal Property, (d) ARV's
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right, title and interest as landlord under all Leases affecting the Xxxxx
Xxxx Real Property, (e) ARV's right, title and interest in and to all
assignable Permits relating to the Xxxxx Xxxx Real Property, (f) ARV's
right, title and interest in and to all Warranties relating to the Xxxxx
Xxxx Real Property or the Xxxxx Xxxx Personal Property, (g) ARV's right,
title and interest in and to all Plans relating to the Xxxxx Xxxx Real
Property and (h) ARV's right, title and interest in and to all Intangible
Property relating to the Xxxxx Xxxx Real Property including, without
limitation, the name "Xxxxx Xxxx."
2.3 "Xxxxx Xxxx Real Property" shall mean, collectively, the Xxxxx Xxxx Land
and the Xxxxx Xxxx Improvements.
2.4 "Bella Vita Loan" shall mean that certain loan from Washington Federal
Savings Bank to BVARV having an approximate principal balance of
$6,280,000.
2.5 "Bella Vita Property" shall mean, collectively, (a) the Bella Vita Real
Property, (b) the Bella Vita Personal Property, (c) BVARV's right, title
and interest in and to all Contracts relating to the Bella Vita Real
Property or the Bella Vita Personal Property, (d) BVARV's right, title and
interest as landlord under all Leases affecting the Bella Vita Real
Property, (e) BVARV's right, title and interest in and to all assignable
Permits relating to the Bella Vita Real Property, (f) BVARV's right, title
and interest in and to all Warranties relating to the Bella Vita Real
Property or the Bella Vita Personal Property, (g) BVARV's right, title and
interest in and to all Plans relating to the Bella Vita Real Property and
(h) BVARV's right, title and interest in and to all Intangible Property
relating to the Bella Vita Real Property including, without limitation, the
name "Bella Vita."
2.6 "Bella Vita Real Property" shall mean, collectively, the Bella Vita Land
and the Bella Vita Improvements.
2.7 "Contracts" shall mean, collectively, all agreements for the repair or
maintenance of, or provision of services to, the Xxxxx Xxxx Real Property
or the Xxxxx Xxxx Personal Property, the Bella Vita Real Property or the
Bella Vita Personal Property, the Xxxxxx Terrace Real Property or the
Xxxxxx Terrace Personal Property, the Woodside Village Real Property or the
Woodside Village Personal Property, or the Wyndham Lakes Real Property or
the Wyndham Lakes Personal Property, to the extent a Seller's interest
thereunder is assignable and subject to Section 9.9 hereof.
2.8 "Xxxxxx Terrace Property" shall mean, collectively, (a) the Xxxxxx Terrace
Real Property, (b) the Xxxxxx Terrace Personal Property, (c) ARV's right,
title and interest in and to all Contracts relating to the Xxxxxx Terrace
Real Property or the Xxxxxx Terrace Personal Property, (d) ARV's right,
title and interest as landlord under all Leases affecting the Xxxxxx
Terrace Real Property, (e) ARV's right, title and interest in and to all
assignable Permits relating to the Xxxxxx Terrace Real Property, (f) ARV's
right, title and interest in and to all Warranties relating to the Xxxxxx
Terrace Real Property or the Xxxxxx Terrace Personal Property, (g) ARV's
right, title and interest in and to all Plans relating to the Xxxxxx
Terrace Real Property and (h) ARV's right, title and interest in and to all
Intangible Property relating to the Xxxxxx Terrace Real Property including,
without limitation, the name "Xxxxxx Terrace."
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2.9 "Xxxxxx Terrace Real Property" shall mean, collectively, the Xxxxxx Terrace
Land and the Xxxxxx Terrace Improvements.
2.10 "Improvements" shall mean, collectively, the Xxxxx Xxxx Improvements, the
Bella Vita Improvements, the Xxxxxx Terrace Improvements, the Woodside
Village Improvements and the Wyndham Lakes Improvements.
2.11 "Intangible Property" shall mean any and all rights, privileges and
appurtenances owned by each Seller and in any way related to, or used in
connection with, the operation of the Real Property or Personal Property
owned by such Seller, excluding such Seller's Real Property, Improvements,
Personal Property, Leases, Contracts, Warranties, Permits and Plans.
2.12 "Leases" shall mean those leases or occupancy agreements affecting the
Xxxxx Xxxx Property, the Bella Vita Property, the Xxxxxx Terrace Property,
the Woodside Village Property or the Wyndham Lakes Property, and all rent,
income and proceeds arising therefrom and security and other deposits made
by the tenants thereunder.
2.13 "Loans" shall mean, collectively, the Xxxxx Xxxx Loan, the Bella Vita Loan,
the Woodside Village Loan and the Wyndham Lakes Loan.
2.14 "Permits" shall mean all governmental permits, licenses, certificates and
authorizations relating to the use or operation of any of the Real Property
including, without limitation, all permits, licenses, certificates and
authorizations required for the use, occupancy, operation and management of
the Real Property as an assisted living or residential care facility with
all services currently provided at such Real Property as of the Effective
Date.
2.15 "Personal Property" shall mean, collectively, the Xxxxx Xxxx Personal
Property, the Bella Vita Personal Property, the Xxxxxx Terrace Personal
Property, the Woodside Village Personal Property and the Wyndham Lakes
Personal Property.
2.16 "Plans" shall mean all site plans, surveys, soil and substratus studies,
architectural drawings, plans and specifications, engineering plans and
studies, electrical and mechanical plans and studies, floor plans,
landscape plans, environmental assessment reports, engineering, structural
or physical inspection reports, appraisals, feasibility studies, marketing
plans and promotional materials, tenant questionnaires and studies and
other plans and studies of any kind if existing and in a Seller's
possession or control that relate to the Real Property or the Personal
Property owned by such Seller.
2.17 "Properties" shall mean, collectively, the Xxxxx Xxxx Property, the Bella
Vita Property, the Xxxxxx Terrace Property, the Woodside Village Property
and the Wyndham Lakes Property. A "Property" refers to one of the
Properties, as the context may require.
2.18 "Real Property" shall mean, collectively, the Xxxxx Xxxx Real Property, the
Bella Vita Real Property, the Xxxxxx Terrace Real Property, the Woodside
Village Real Property and the Wyndham Lakes Property.
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2.19 "Woodside Village Loan" shall mean that certain loan from Bank United to
ARV having an approximate principal balance of $5,250,000.
2.20 "Woodside Village Property" shall mean, collectively, (a) the Woodside
Village Real Property, (b) the Woodside Village Personal Property, (c)
ARV's right, title and interest in and to all Contracts relating to the
Woodside Village Real Property or the Woodside Village Personal Property,
(d) ARV's right, title and interest as landlord under all Leases affecting
the Woodside Village Real Property, (e) ARV's right, title and interest in
and to all assignable Permits relating to the Woodside Village Real
Property, (f) ARV's right, title and interest in and to all Warranties
relating to the Woodside Village Real Property or the Woodside Village
Personal Property, (g) ARV's right, title and interest in and to all Plans
relating to the Woodside Village Real Property and (h) ARV's right, title
and interest in and to all Intangible Property relating to the Woodside
Village Real Property including, without limitation, the name "Woodside
Village."
2.21 "Woodside Village Real Property" shall mean, collectively, the Woodside
Village Land and the Woodside Village Improvements.
2.22 "Warranties" shall mean all unexpired assignable warranties and guarantees
relating to the Xxxxx Xxxx Real Property or the Xxxxx Xxxx Personal
Property, the Bella Vita Real Property or the Bella Vita Personal Property,
the Xxxxxx Terrace Real Property or the Xxxxxx Terrace Personal Property,
the Woodside Village Real Property or the Woodside Village Personal
Property, or the Wyndham Lakes Real Property or the Wyndham Lakes Personal
Property.
2.23 "Wyndham Lakes Loan" shall mean that certain loan from HRPT Properties
Trust to ARV having an approximate principal balance of $5,000,000.
2.24 "Wyndham Lakes Property" shall mean, collectively, (a) the Wyndham Lakes
Real Property, (b) the Wyndham Lakes Personal Property, (c) ARV's right,
title and interest in and to all Contracts relating to the Wyndham Lakes
Real Property or the Wyndham Lakes Personal Property, (d) ARV's right,
title and interest as landlord under all Leases affecting the Wyndham Lakes
Real Property, (e)ARV's right, title and interest in and to all assignable
Permits relating to the Wyndham Lakes Real Property, (f) ARV's right, title
and interest in and to all Warranties relating to the Wyndham Lakes Real
Property or the Wyndham Lakes Personal Property, (g) ARV's right, title and
interest in and to all Plans relating to the Wyndham Lakes Real Property
and (h) ARV's right, title and interest in and to all Intangible Property
relating to the Wyndham Lakes Real Property including, without limitation,
the name "Wyndham Lakes."
2.25 "Wyndham Lakes Real Property" shall mean, collectively, the Wyndham Lakes
Land and the Wyndham Lakes Improvements.
3. Purchase and Sale. Subject to and upon the terms and conditions set forth
in this Agreement, (a) ARV wishes to sell the Xxxxx Xxxx Property to Aspen
Xxxxx Xxxx, and Aspen Xxxxx Xxxx wishes to acquire the Xxxxx Xxxx Property,
(b) BVARV wishes to sell the Bella Vita Property to Aspen Bella Vita, and
Aspen Bella Vita wishes to acquire the Bella Vita
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Property, (c) ARV wishes to sell the Xxxxxx Terrace Property to Aspen
Xxxxxx Terrace, and Aspen Xxxxxx Terrace wishes to acquire the Xxxxxx
Terrace Property, (d) ARV wishes to sell the Woodside Village Property to
Aspen Woodside Village, and Aspen Woodside Village wishes to acquire the
Woodside Village Property, and (e) ARV wishes to sell the Wyndham Lakes
Property to Aspen Wyndham Lakes, and Aspen Wyndham Lakes wishes to acquire
the Wyndham Lakes Property. For purposes of this Agreement, "Effective
Date" shall mean the date of mutual execution and delivery of this
Agreement by all of the parties hereto.
4. Purchase Price. The aggregate purchase price for the Properties (the
"Purchase Price") shall be $32,250,000.
4.1 Allocation of Purchase Price. The Purchase Price shall be allocated as
follows:
Xxxxx Xxxx $ 2,850,000
Bella Vita 8,500,000
Xxxxxx Terrace 7,300,000
Woodside Village 11,350,000
Wyndham Lakes 2,250,000
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TOTAL $32,250,000
Such allocation shall be binding on Sellers and Purchasers for all purposes
under this Agreement, including, without limitation, whenever and wherever the
values of the Properties must be separately stated in any instrument or document
which, pursuant to applicable law, must be filed with any public agency or
entity in connection with the closing of the transaction contemplated by this
Agreement.
4.2 Payment of Purchase Price. The Purchase Price shall be payable as follows:
4.2.1 The sum of $1,000,000 (together with all accrued interest thereon, the
"Deposit") shall be paid by Purchaser to First American Heritage Title
Company, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
("Escrow Agent"), in immediately available funds on or before March 26,
1999. Escrow Agent shall deposit such sum in an interest-bearing account
and hold such money as an xxxxxxx money deposit hereunder. The Deposit
shall be allocated among the Properties as follows:
Xxxxx Xxxx $ 88,375
Bella Vita 263,550
Xxxxxx Terrace 226,350
Woodside Village 351,950
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Wyndham Lakes 69,775
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TOTAL $1,000,000
This Agreement constitutes the joint instructions of Sellers and Purchasers
to Escrow Agent to hold and disburse the Deposit in accordance with the
provisions of this Agreement, and to perform all other duties and obligations of
Escrow Agent hereunder. If requested by Escrow Agent, Sellers and Purchasers
shall join in the execution of separate instructions confirming the duties and
obligations of Escrow Agent with respect to the Deposit and otherwise.
4.2.2 A portion of the Purchase Price shall be paid by Purchasers' assumption of
the Loans, in accordance with the terms and conditions of Section 7 hereof.
The Purchase Price shall be credited in an amount equal to the aggregate
principal indebtedness at the time of Closing under the Loans which were
assumed by Purchasers. Without limiting the foregoing, but subject to
Section 7.1.5 hereof, if the outstanding principal balance of a Loan
assumed by a Purchaser is greater than the portion of the Purchase Price
allocable to the Property to which such Loan relates, then the aggregate
Purchase Price allocable to the other Properties not yet closed shall be
credited in an amount equal to such excess outstanding indebtedness.
4.2.3 The balance of the Purchase Price, subject to adjustment in accordance
with Section 11 hereof, shall be delivered into escrow with Escrow Agent at
least one (1) business day prior to the closing of the purchase transaction
contemplated hereby with respect to each Property (the "Closing") in cash,
by certified or cashier's check, wire transfer or other immediately
available funds.
5. Purchasers' Investigations.
5.1 Inspection Period. Purchasers shall have until 11:59 p.m., Mountain Time,
on March 18, 1999 (the "Inspection Period") to investigate the Properties
and all matters relevant to the acquisition, financing, ownership,
operation and marketability thereof. Such right of investigation shall
include, without limitation, the right to have made, at Purchasers'
expense, any studies or inspections of the Properties that Purchasers may
reasonably deem necessary or appropriate. Sellers agree to cooperate
reasonably with any such investigations, inspections or studies made by or
at Purchasers' direction so long as such cooperation is at no expense or
liability to any Sellers. Purchasers shall conduct all such inspections in
a reasonable manner consistent with and not likely to disturb the normal
operations of the Properties and so as to minimize disruption to the
residents of the Properties. Promptly after undertaking any testing or
inspection, Purchasers shall restore each Property to its condition prior
to any such test or inspection. If Purchasers terminate this Agreement
under this Section, then, upon Sellers' reimbursement of Purchasers for any
costs incurred in connection therewith, Purchasers shall provide Sellers
with the results of any test, report, study or other non-privileged
document obtained by Purchasers in connection with any of their
inspections.
5.2 Due Diligence Materials.
5.2.1 Property Documents. At all times from and after the Effective Date,
Sellers shall make available to Purchasers, at the offices of Aspen
Retirement Corporation, 000 Xxxxxxx Xxxxxx,
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Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, and/or at the Properties, all of the
books, records and documents in any way related to the development,
ownership, use, financing, operation, maintenance, occupancy or
marketability of any of the Properties which are in the possession or
control of Sellers or Sellers' agents, including, without limitation, the
following: (a) a list of the Personal Property, (b) a written description
of all inventories of food and medical supplies (the "Food and Medical
Inventories") then maintained by Sellers in connection with the Properties,
(c) a list of all Contracts, together with copies of all written Contracts
and a written description of all unwritten or oral Contracts, (d) copies of
any Permits and Warranties, (e) copies of the Leases, (f) copies of all
documents relating to the Loans, including, but not limited to, promissory
notes, deeds of trust, guaranties, environmental indemnity agreements,
default notices, and all other certificates, affidavits, notices,
agreements and other instruments relating to the Loans, (g) copies of each
Seller's financial statements for the years 1996, 1997 and 1998 and each
Seller's financial statements for the first two (2) months of 1999, (h)
copies of the most recent ad valorem tax statements covering the Real
Property and the Personal Property, together with a copy of any notice of
increase in valuation or taxes received by each Seller since such tax
statements were issued, (i) copies of all inspection reports and surveys
relating to any of the Properties, including without limitation, all
department of health, social services, sanitation and fire reports and
surveys, (j) all Plans and (k) such other documents as Purchasers may
request including, without limitation, those materials described in EXHIBIT
F attached hereto.
5.2.2 Rent Roll. Each Seller has delivered to the applicable Purchaser a rent
roll (the "Rent Roll"), certified by such Seller as true, accurate and
complete as of a date no earlier than the Effective Date, containing the
following information for each of the Leases: the name of the tenant; the
apartment, by number, leased by each tenant; the type of apartment leased
by each tenant (e.g., studio, 1-bedroom, etc.) and the area, in square
feet, of each such apartment, together with the same information for each
vacant apartment in the Improvements; the term of each such lease, tenancy
or other occupancy arrangement; the amount of any security or other
refundable deposit held on behalf of any tenant; the total amount of rent
(including base rent and any additional rent, e.g. for rental of
appliances, assisted living or other services) due from each tenant per
month; the current asking rent for each apartment; any existing monetary
defaults by the tenants under any of such Leases and any existing defaults
by the landlord or nonmonetary defaults by the tenants under any of such
Leases; any concessions or free rent that any of such tenants have been
granted in the past or to which they are entitled in the future; and the
amount of any rents that have been paid in advance under any of such
leases, tenancies or other occupancy arrangements (other than for the
current month).
5.2.3 Title and Survey. Sellers represent to Purchasers that Sellers have
furnished Purchasers with true and complete copies of (a) each Seller's
owner's title insurance policy relating to the Properties and (b) the most
recent survey of each Property in the possession or control of Sellers or
Sellers' agents (the "Surveys"). Purchaser has requested title insurance
commitments or title reports from First American Title Insurance Company
(the "Title Company"), including copies of all recorded exceptions to title
referred to therein (collectively, the "Title Commitments"), reflecting
title to each Property. Sellers acknowledge receipt from Purchasers'
counsel of three letters dated March 23, 1999 and March 24, 1999
(collectively, the "Title Letter"), setting forth Purchasers' objections
with
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respect to the Title Commitments and UCC searches conducted by Purchasers,
and Sellers shall, at their sole expense, prior to the Closing, use their
best efforts to cure such objections. Failure of Purchasers to disapprove
of any exception not objected to in the Title Letter will be deemed to
evidence Purchasers' approval of such exception (but without waiving any
covenant, warranty or representation of Sellers pursuant to this
Agreement). Sellers' obligation to cure such exceptions may, if such method
is acceptable to Purchasers as to any specific exception, include the
obligation to obtain title insurance for the applicable Purchaser against
such exception and to pay additional premiums or costs which the Title
Company charges for such protection. If despite Sellers' best efforts to
cure such exceptions, each of such exceptions has not been cured by Sellers
prior to the Closing, then, notwithstanding anything to the contrary in
this Agreement, Purchasers may at their option terminate this Agreement and
receive a refund of the Deposit, whereupon the parties will be relieved
from all obligations hereunder except for those obligations which survive
termination of this Agreement (the "Surviving Obligations") or waive their
objections to title and proceed in accordance with this Agreement. If
Purchasers do not terminate this Agreement pursuant to this Section or
Section 5.3 hereof, then the "Permitted Exceptions" hereunder shall be any
encumbrance or exception arising from the acts or omissions of Purchasers
and the exceptions to title disclosed in the Title Commitments, excluding
(a) any delinquent taxes or assessments, (b) subject to Section 7 hereof,
any monetary liens or encumbrances, (c) the standard printed exceptions or
(d) any exceptions to which Purchasers object in writing during the
Inspection Period. If required to cause the Title Company to delete the
standard printed exceptions from any owner's title insurance policy to be
issued to a Purchaser at the Closing, Sellers will execute such
certificates, affidavits or other instruments as the Title Company may
require to confirm that no changes have been made to any Property since the
date of the Survey applicable to such Property.
5.3 Termination. If, on or before 11:59 p.m., Mountain Time, on March 18, 1999,
Purchasers give Sellers written notice ("Notice of Disapproval") setting
forth Purchasers' dissatisfaction with the Properties for any reason
whatsoever in Purchasers' sole discretion, and states in such notice
Purchasers' unequivocal election to terminate this Agreement, then the
Deposit shall be returned to Purchasers, this Agreement shall terminate and
both parties shall be relieved from any further liability hereunder, except
for the Surviving Obligations. Subject to Section 5.2.3 hereof, Purchasers'
failure to provide a Notice of Disapproval on or before the expiration of
the Inspection Period shall constitute Purchasers' approval of all such
matters relating to the Properties, but without waiving or limiting any
rights Purchasers have with respect to any violation of any covenant,
warranty or representation of Sellers pursuant to this Agreement. If
Purchasers do not terminate this Agreement as described in the preceding
sentence, then this Agreement shall remain in full force and effect in
accordance with its terms, and the Deposit shall become nonrefundable,
subject only to those terms of this Agreement which provide for a refund of
the Deposit to Purchasers after expiration of the Inspection Period.
5.4 Indemnity. The applicable Purchaser shall indemnify, defend and hold the
applicable Seller, its shareholders, directors, officers, employees,
agents, successors and assigns harmless from and against any expenses,
damages and liabilities, including reasonable attorneys' fees, that such
Seller, its shareholders, directors, officers, employees, agents,
successors or assigns may suffer or incur arising out of any claims for
property damage, personal injury or claims
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from materialmen or laborers which in turn arise from such Purchaser's
investigations under this Section 5. These indemnification obligations of
Purchasers shall survive any termination of this Agreement.
6. Title Defects. If any update of a Title Commitment delivered after the
Inspection Period shall show any exceptions which are not Permitted
Exceptions (each, a "New Exception") or shall contain any additional
requirements, Sellers shall, at their sole expense, use their best efforts
prior to Closing, to cure such New Exceptions and satisfy such
requirements. Sellers' obligation to cure such New Exceptions shall, if
such method is acceptable to Purchasers as to any specific exception,
include the obligation to obtain title insurance for Purchasers against
such exception and to pay additional premiums or costs which the Title
Company charges for such protection. If Sellers are unable, after using
their best efforts, to cure a New Exception, Purchasers shall be entitled
to all rights and remedies therefor, including, without limitation,
specific performance with abatement, damages and/or termination of this
Agreement. If this Agreement is terminated under any provision of this
Section, the Deposit shall be returned to Purchasers and all parties shall
be relieved of any further obligations hereunder.
7. Financings; Approvals.
7.1.1 Assumption of Loans. Sellers have informed Purchasers that (a) the Xxxxx
Xxxx Property is financed by the Xxxxx Xxxx Loan, (b) the Bella Vita
Property is financed by the Bella Vita Loan, (c) the Woodside Village
Property is financed by the Woodside Village Loan and (d) the Wyndham Lakes
Property is financed by the Wyndham Lakes Loan. Aspen Xxxxx Xxxx wishes to
assume the Xxxxx Xxxx Loan, Aspen Bella Vita wishes to assume the Bella
Vita Loan, Aspen Woodside Village wishes to assume the Woodside Village
Loan, and Aspen Wyndham Lakes wishes to assume the Wyndham Lakes Loan. In
furtherance hereof, Sellers authorize Purchasers to communicate with the
lenders ("Lenders"; for purposes of the Bella Vita Loan, the term "Lender"
shall include the U.S. Department of Housing and Urban Development ("HUD"))
under the Loans for the purpose of evaluating the applicable Purchaser's
assumption of the applicable Loan, and Sellers and Purchasers agree to
cooperate with each other to obtain the applicable Lender's consent to
assumption of its Loan by the applicable Purchaser, and such cooperation
will include the parties' prompt delivery to the Lenders of such financial
and other information as the Lenders may reasonably require.
7.1.2 Loan Terms. Except as otherwise expressly provided in this Section 7.1.2
with respect to the Xxxxx Xxxx Loan and the Woodside Village Loan, no
Purchaser shall be deemed to have agreed to assume any Loan if a Lender's
consent thereto is conditioned upon a requirement that any person or entity
provides any guaranties of the Loan or upon any change in the terms of such
Loan or if the assumption documents are not satisfactory in form and
substance to Purchasers in their sole discretion; provided, however, that
notwithstanding the foregoing, the parties agree to cooperate with each
other in requesting the Lender of the Xxxxx Xxxx Loan and the Woodside
Village Loan to extend the stated maturity date of such Loans. If a Lender
states its willingness to allow a Purchaser to assume the Loan provided
that such Purchaser causes another person or entity to provide a guaranty
or agrees to a change in the terms thereof (either of which is referred to
herein as "Changed Loan Terms"),
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including without limitation, an increased interest rate or shortened
maturity date, or if the assumption documents are not satisfactory in form
and substance to Purchasers in their sole discretion, then, subject to the
provisions of Section 7.1.4 and 7.1.5, Purchasers may prior to Closing
elect to terminate this Agreement, whereupon the Deposit shall be returned
to Purchasers and both parties shall be relieved of any further liabilities
or obligations hereunder except for the Surviving Obligations.
7.1.3 Lender Fees and Expenses. Purchasers shall be responsible for the payment
of any and all review fees, processing fees, transfer fees, assumption
fees, appraisal fees, title insurance premiums and other fees and expenses,
including attorneys' fees and expenses, incurred by Lenders in connection
with their review and evaluation of the sale of the applicable Property and
the applicable Purchaser's assumption of the applicable Loan (collectively,
"Lenders' Fees"), except that Sellers shall be responsible for all Lenders'
Fees payable in connection with Aspen Bella Vita's assumption of the Bella
Vita Loan and except that Sellers and Purchaser will share equally any
assumption fee charged by the Lender of the Wyndham Lakes Loan. The
parties' liability for the payment of Lenders' Fees shall survive Closing
or any termination of this Agreement.
7.1.4 Xxxxx Xxxx and Xxxxxxxx Village Loans. If the Lender under the Xxxxx Xxxx
Loan and/or the Woodside Village Loan shall fail to approve the applicable
Purchaser's assumption of such Loan on or before the date of Closing, or
shall condition such approval on the applicable Purchaser's consent to
Changed Loan Terms or upon the applicable Purchaser's execution of
assumption documents not satisfactory in form and substance to such
Purchaser in its sole discretion, then the parties shall nonetheless
proceed to Closing (subject to Sections 7.1.5 and 7.2 hereof), the
applicable Purchaser shall pay the Purchase Price for such Property in cash
or other immediately available funds, and the applicable Seller shall cause
such Lender to release the applicable Property from all of its liens. In
such instance, the applicable Seller shall be responsible for the payment
of all prepayment fees or penalties arising out of the prepayment of any
such Loan.
7.1.5 Bella Vita and Wyndham Lakes Loans. If the Lender under the Bella Vita
Loan and/or the Wyndham Lakes Loan shall fail to approve the applicable
Purchaser's assumption of such Loan on or before the Closing Date, or shall
condition such approval on the applicable Purchaser's consent to Changed
Loan Terms, or upon the applicable Purchaser's execution of assumption
documents not satisfactory in form and substance to such Purchaser in its
sole discretion, then the applicable Purchaser may elect by written notice
to Sellers to periodically extend the Closing Date with respect to the
applicable Property for a total period not to exceed one hundred eighty
(180) days within which the applicable Purchaser shall continue its efforts
to obtain the Lender's approval without any Changed Loan Terms; provided,
that such 180-day period may be extended at such Purchaser's election for
an additional period not to exceed ninety (90) days so long as the
applicable Lender is continuing to review the parties' application for such
Purchaser's assumption of the Loan. If,at the expiration of such one
hundred eighty (180)- day period, as it may have been extended, (a) the
Lender under the Bella Vita Loan has not granted such approval, then this
Agreement shall terminate with respect to the Bella Vita Property, and
Sellers and Purchasers shall be relieved of all further obligations
hereunder (except Surviving Obligations) insofar as such obligations apply
to the Bella Vita Property, and the allocable
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portion of the Deposit will be returned to Purchasers, and (b) the Lender
under the Wyndham Lakes Loan has not granted such approval, then Aspen
Wyndham Lakes shall pay the Purchase Price for the Wyndham Lakes Property
in cash or other immediately available funds, and ARV shall cause such
Lender to release the Wyndham Lakes Property from all of its liens; in such
instance, ARV shall be responsible for the payment of all prepayment fees
or penalties arising out of the prepayment of such Loan. Notwithstanding
anything in Section 4.2.2 hereof to the contrary, if the principal amount
to be assumed under the Wyndham Lakes Loan is greater than the Purchase
Price allocable to the Wyndham Lakes Property and the sale of all of the
other Properties has previously closed, then ARV shall (a) prepay such
portion of the Wyndham Lakes Loan as is necessary to reduce the outstanding
principal balance of such Loan to the principal amount of such Loan to be
assumed by Aspen Wyndham Lakes and shall pay all prepayment fees and
penalties associated therewith (and Aspen agrees that ARV may negotiate the
amount of such prepayment fees and penalties with the Lender) and (b) pay
to Aspen Wyndham Lakes an amount equal to the difference between the
Purchase Price allocable to the Wyndham Lakes Property and the outstanding
principal indebtedness to be assumed by Aspen Wyndham Lakes with respect to
the Wyndham Lakes Loan; provided, that if ARV shall fail to make the
payments described in the preceding sentence, this Agreement shall
terminate with respect to the Wyndham Lakes Property and Sellers and
Purchasers shall be relieved of all further obligations hereunder (except
Surviving Obligations) insofar as such obligations apply to the Wyndham
Lakes Property, and the allocable portion of the Deposit will be returned
to Purchasers. Purchasers shall proceed diligently and in good faith to
obtain the approval of the applicable Lenders to the applicable Purchaser's
assumption of the Bella Vita Loan and the Wyndham Lakes Loan, provided that
nothing herein shall obligate Purchasers to accept any Changed Loan Terms
or assumption documents not satisfactory to it in its sole discretion.
7.2 Xxxxxx Terrace Approval.
7.2.1 HUD Consent. The parties acknowledge that pursuant to a Foreclosure Sale
Use Agreement dated August 26, 1996, between ARV and HUD, HUD must deliver
its written consent (the "HUD Consent") to ARV's sale of the Xxxxxx Terrace
Property to Aspen Xxxxxx Terrace. Sellers and Purchasers agree to cooperate
with each other to obtain the HUD Consent, and Purchasers shall proceed
diligently and in good faith to obtain the HUD Consent. If the HUD Consent,
in form and substance reasonably satisfactory to Purchasers, has not been
obtained on or before the Closing Date, then Aspen Xxxxxx Terrace may elect
by written notice to ARV to periodically extend the Closing Date with
respect to the Xxxxxx Terrace Property for a total period not to exceed one
hundred eighty (180) days within which Aspen Xxxxxx Terrace shall continue
its efforts to obtain the HUD Consent; provided, that such 180-day period
may be extended at Aspen Xxxxxx Terrace's election for an additional period
not to exceed ninety (90) days so long as HUD is continuing to review the
parties' application for Aspen Xxxxxx Terrace's acquisition fo the Xxxxxx
Terrace Property. If, at the expiration of such one hundred eighty (180)-
day period, as it may have been extended, HUD has not delivered the HUD
Consent, then this Agreement shall terminate with respect to the Xxxxxx
Terrace Property, and Sellers and Purchasers shall be relieved of all
further obligations hereunder (except Surviving Obligations) insofar as
such obligations apply to the
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Xxxxxx Xxxxxxx Property, and the allocable portion of the Deposit will be
returned to Purchasers.
7.2.2 Xxxxxx Terrace Loan. If the parties have not received the HUD Consent on
or before the Closing Date, then Aspen Xxxxxx Terrace shall on the Closing
Date make a loan to ARV (the "Xxxxxx Terrace Loan") in the stated principal
amount of $2,000,000, subject to and upon the terms and conditions set
forth in this Section. The Xxxxxx Terrace Loan shall bear interest at a
non-default rate of fifteen percent (15%) per annum and shall mature on
March 30, 2000; prior to the maturity of the Xxxxxx Terrace Loan, payments
of interest only in arrears shall be due and payable on the first (1st) day
of each month. The Loan shall be evidenced by a promissory note made by ARV
to Aspen Xxxxxx Terrace and will be secured by a deed of trust or mortgage,
as customary in the Commonwealth of Virginia (the "Xxxxxx Terrace
Mortgage"), and by an assignment of leases and rents. Such loan documents
shall be negotiated by the parties prior to the Closing Date, and Aspen
Xxxxxx Terrace's agreement to make the Xxxxxx Terrace Loan shall be subject
to ARV's execution and delivery of loan documents in form and substance
satisfactory to Aspen Xxxxxx Terrace in its sole discretion. The Xxxxxx
Terrace Mortgage shall constitute a second lien against the Xxxxxx Terrace
Property, subject only to a first lien in favor of Imperial Bank, as agent
("Imperial"), securing a line of credit in the stated amount of $10,000,000
(the "Imperial Bank Lien"). A default under the Imperial Bank Lien or the
loan secured thereby shall constitute a default under the Xxxxxx Terrace
Loan. It shall be a condition to Aspen Xxxxxx Terrace making the Xxxxxx
Terrace Loan that Imperial Bank and Aspen Xxxxxx Terrace enter into one or
more subordination and intercreditor agreements (collectively, the
"Intercreditor Agreement") that provide, among other things, that (a)
Imperial shall approve the Xxxxxx Terrace Loan and the recordation of the
Xxxxxx Terrace Mortgage, (b) Imperial shall be obligated to release the
Imperial Bank Lien upon payment of a release price of $4,571,622, and (c)
Aspen Xxxxxx Terrace shall acknowledge that the Xxxxxx Terrace Mortgage
shall be junior and subordinate to the Imperial Lien. If the Intercreditor
Agreement has not been executed and delivered by Imperial on or before the
Closing Date, then the period for obtaining the Intercreditor Agreement and
Aspen Xxxxxx Terrace's making the Xxxxxx Terrace Loan shall be extended to
April 30, 1999; if the Intercreditor Agreement has not been executed and
delivered by Imperial on or before April 30, 1999, (i) Aspen Xxxxxx Terrace
shall not make the Xxxxxx Terrace Loan, and (ii) Aspen Xxxxxx Terrace's
right to acquire the Xxxxxx Terrace Property in accordance with the terms
and conditions of this Agreement shall remain in full force and effect, and
the parties shall proceed under Section 7.3 hereof. At the Closing of the
Xxxxxx Terrace Property, all principal of, accrued interest on and other
amounts outstanding under the Xxxxxx Terrace Loan shall be credited against
the Purchase Price allocable to the Xxxxxx Terrace Property, which credit
shall satisfy the Xxxxxx Terrace Loan. ARV shall be responsible for all
out-of-pocket costs and expenses relating to the Xxxxxx Terrace Loan,
including recording costs and the costs of a mortgagee's title insurance
policy in favor of Aspen Xxxxxx Terrace, insuring the Xxxxxx Terrace
Mortgage in the amount of the Xxxxxx Terrace Loan, subject only to the
Permitted Exceptions and the Imperial Bank Lien. All of ARV's obligations
under and with respect to the Xxxxxx Terrace Loan shall be deemed to be
Surviving Obligations for purposes of this Agreement.
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7.3 Escrowed Documents. In the event that, on or before the Closing Date, the
Lender under the Bella Vita Loan has not approved Aspen Bella Vita's
assumption of the Bella Vita Loan, the Lender under the Wyndham Lakes Loan
has not approved Aspen Wyndham Lakes' assumption of the Wyndham Lakes Loan
and/or HUD has not delivered the HUD Consent with respect to the Xxxxxx
Terrace Property, then the parties shall nonetheless execute all of the
documents contemplated by Section 10.2 hereof with respect to the Bella
Vita Property, the Wyndham Lakes Property and the Xxxxxx Terrace Property
(except the settlement statements described in Section 10.2.18) and deliver
original, undated counterparts of all such documents to the Title Company
to hold in escrow pending the parties' receipt of the applicable approvals.
On the Closing Date, the parties will execute (a) an escrow agreement
directing the Title Company to hold all such documents relating to the
Bella Vita Property in escrow until the first to occur of (i) the parties'
receipt of the Lender's approval of Aspen Bella Vita's assumption of the
Bella Vita Loan in accordance with Section 7.1.5 hereof, in which event the
Title Company shall be directed to close the sale of the Bella Vita
Property and the parties shall execute settlement statements and such other
remaining documents as may be required to close the sale of the Bella Vita
Property or (ii) termination of this Agreement with respect to the Bella
Vita Property in accordance with Section 7.1.5 hereof, whereupon the Title
Company shall be directed to return all of the escrowed documents to the
respective parties who deposited such documents; (b) an escrow agreement
directing the Title Company to hold all such documents relating to the
Wyndham Lakes Property in escrow until the first to occur of the parties'
receipt of the Lender's approval of Aspen Wyndham Lakes' assumption of the
Wyndham Lakes Loan in accordance with Section 7.1.5 hereof or the Lender's
failure to grant such approval, in which event the Title Company shall be
directed to close the sale of the Wyndham Lakes Property and the parties
shall execute settlement statements and such other remaining documents as
may be required to close the sale of the Wyndham Lakes Property in
accordance with Section 7.1.5 hereof; and (c) an escrow agreement directing
the Title Company to hold all such documents relating to the Xxxxxx Terrace
Property in escrow until the first to occur of (i) the parties' receipt of
the HUD Consent in the form prescribed by Section 7.2.1 hereof, in which
event the Title Company shall be directed to close the sale of the Xxxxxx
Terrace Property and the parties shall execute settlement statements and
such other remaining documents as may be required to close the sale of the
Xxxxxx Terrace Property or (ii) termination of this Agreement with respect
to the Xxxxxx Terrace Property in accordance with Section 7.2.1 hereof,
whereupon the Title Company shall be directed to return all of the escrowed
documents to the respective parties who deposited such documents. The
parties will share equally all escrow fees charged by the Title Company in
connection with the escrow agreements described herein.
8. Representations and Warranties.
8.1 Seller Representations. Each Seller represents and warrants to the
applicable Purchaser, with respect to such Seller and the Property to be
conveyed to such Purchaser by such Seller, as follows:
8.1.1 ARV is a corporation, duly organized and existing and in good standing
under the laws of the State of Delaware. ARV is qualified to transact
business, and is in good standing, as a foreign corporation in the States
of Florida, Ohio and Virginia. ARV has full right and authority to enter
into this Agreement and to consummate the transactions contemplated
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hereby. Each of the persons signing this Agreement on behalf of ARV is
authorized to do so. ARV shall furnish to Purchasers any and all documents
to evidence such authority as Purchasers shall reasonably request.
8.1.2 BVARV is a corporation, duly organized and existing and in good standing
under the laws of the State of Florida. BVARV has full right and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. Each of the persons signing this Agreement on behalf
of BVARV is authorized to do so. BVARV shall furnish to Purchasers any and
all documents to evidence such authority as Purchasers shall reasonably
request.
8.1.3 Seller is not a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code.
8.1.4 Seller has not granted to any party other than Purchaser any option,
contract or other agreement with respect to a purchase or sale of the
Property to be conveyed by Seller or any portion thereof.
8.1.5 No third party approval or consent is required to enter into this
Agreement or to consummate the transaction contemplated hereby, except to
the extent that Lender approvals are required under Section 7 hereof and
except for the HUD Consent. To the best of Seller's knowledge, the entering
into and consummation of the transactions contemplated hereby will not
conflict with, or with or without notice or the passage of time or both,
constitute a default under, any contract, lease or other agreement to which
Seller is a party or by which Seller may be bound or of any law, rule,
license, regulation, judgment, order or decree governing or affecting any
Seller or Property. This Agreement and all documents required hereby to be
executed by Seller are and shall be valid, legally binding obligations of
and enforceable against Seller in accordance with their terms.
8.1.6 To Seller's knowledge, Seller is not in default of any of its obligations
under the Permitted Exceptions or the Contracts. There are no Contracts
other than those set forth on the list of Contracts made available by
Seller to Purchaser hereunder. The copies of all Contracts delivered by
Seller to Purchaser hereunder are true, accurate and complete copies of
such documents (including all amendments or modifications thereto) and the
written descriptions of oral or unwritten Contracts are true, accurate and
complete and do not omit any material terms. All Contracts which are
assigned to Purchaser at Closing pursuant to Section 9.9 are in full force
and effect and unmodified and no party to such Contracts is in default or
breach under the terms and conditions thereof. Except for the Permitted
Exceptions, the Leases and the Contracts assigned to Purchaser at Closing
pursuant to Section 9.9, there are no contracts, agreements or obligations
of any kind or nature relating to the Property and to which Purchaser will
be bound or the Property will be subject after Closing.
8.1.7 Seller has not entered into any labor union agreements or collective
bargaining agreements with respect to the Property or any employee working
at or for the Property. Subject to Sections 9.1 and 10.3 hereof, there are
no employees of Seller employed in connection with the use, management,
maintenance or operation of the Property whose
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employment will continue after the Closing Date. Pending Seller's receipt
of a notice from Purchaser as described in Section 9.1 hereof, Seller will
not transfer any employees to other facilities owned or operated by Seller
or any of its affiliates or offer other employment to any employees
employed in connection with the use, management, maintenance or operation
of the Property. Seller has not received any notice of any violation of any
law applicable to the employment of persons at the Property to be conveyed
by such Seller. No labor union or collective bargaining representative
represents any of the employees at the Property and there is no ongoing
union campaign to solicit the employees' authorization of a union or to
request National Labor Relations Board certification of a union election.
8.1.8 Seller has not received any notice of a violation of the Occupational
Safety and Health Act or similar applicable federal or state laws.
8.1.9 Seller has good and marketable fee simple title to the Property, free and
clear of all matters affecting title to the Property, except for the
Permitted Exceptions and the Leases.
8.1.10 Except for any parties in possession pursuant to, and any rights of
possession granted under, the Leases, the Permitted Exceptions or the
Contracts, there are no parties in possession of any part of the Real
Property, and there are no other rights of possession which have been
granted to any third party or parties.
8.1.11 There are no mechanics' or materialmen's liens of record against the
Property, nor are there any unsatisfied charges, debts, liabilities, claims
or obligations arising from the construction, ownership, maintenance or
operation of or otherwise relating to the Property, which could give rise
to any mechanic's or materialmen's or constitutional, statutory or common
law lien against the Property, or any part thereof.
8.1.12 Each of the Leases is with a bona fide tenant in possession or with a
right to possession of the demised premises. Each of the Leases is in full
force and effect, has not been modified, amended or rescinded and the
rights of each tenant thereunder are as tenants only (no tenant under any
of the Leases has any ownership interest or option or right of first
refusal to acquire any ownership interest in the Property and no such
tenant has any right or option to renew or extend the lease term or to
lease additional space except as provided in its Lease and as specifically
noted in the Rent Roll). No Lease has a term longer than twelve (12)
months. No commissions to any broker or leasing agent are due or will
become due on account of any of the Leases or upon extension or renewal of
the original term thereof, whether or not pursuant to an option contained
in such lease. To Seller's knowledge, no default (including a default with
respect to the payment of rent) exists or is claimed to exist on the part
of the tenant under any of the Leases and no right or claim of set-off
against rent exists or has been asserted by any tenant under such leases
except as described in the Rent Roll. The Rent Roll discloses all security
and other deposits made by each of the tenants under the Leases, and no
tenant is entitled to any rebate, deduction or concession which is not
disclosed thereon. All decorating, alterations or other work or furnishing
of services required by any enforceable agreement to be performed on or
prior to Closing by or on behalf of Seller for any tenant of the Property,
or the cost thereof to be reimbursed to any such tenant, have been
performed or reimbursed or will be performed or reimbursed by Seller at its
cost (or a proration credit extended to Purchaser) prior to or at the
Closing.
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Seller has not received any advance payment of rent (other than for the
current month) on account of any of the Leases except as shown in the Rent
Roll. There are no written or oral leases or tenancies or other occupancy
arrangements of any kind or nature whatsoever affecting the Property other
than those listed in the Rent Roll.
8.1.13 All financial statements delivered to or made available to Purchaser
under Section 5.2.1 hereof are true and correct and do not omit any
material information relating to the Property.
8.1.14 Except as expressly disclosed in this Section 8.1.14, Seller has no
knowledge of a material defect in or to any of the design, workmanship,
materials, quality or condition of any of the Improvements, the Real
Property, the Personal Property or with respect to the air conditioning,
heating, plumbing and electrical systems, and any other mechanical or
operating systems or the roof, foundation and load-bearing structure. At
the Closing, ARV will assign to Aspen Woodside Village any claim that ARV
has with respect to the Woodside Village Improvements under its insurance
policies and all of ARV's insurance proceeds in connection with such claims
and will credit Aspen Woodside Village with the amount of any deductible
under ARV's insurance policy (reduced by the amount of any funds
theretofore actually expended by Sellers to repair the damage covered by
such insurance proceeds); Sellers represent that they have not settled and
will not settle any such insurance claim.
8.1.15 All water, sewer, gas, electricity, telephone and other utilities serving
the Improvements are supplied directly to the Improvements by facilities of
public utilities and the cost of installation of such utilities has been
fully paid. All such utility services are fully functional and operational,
and Seller has no knowledge of, and has not received any notice of, any
potential stoppage or interruption of such utility services.
8.1.16 To Seller's knowledge, the Property is in compliance in all material
respects (both as to condition and use) with all applicable statutes,
ordinances, codes (including, but not limited to, zoning, building,
subdivision, pollution, environmental protection, water disposal, health,
fire and safety engineering codes), and the rules and regulations of, any
governmental authority having jurisdiction over the Property. Seller has
not received notice of any violation of any of the foregoing or notice that
any alterations are required to the Property to comply with any of the
foregoing.
8.1.17 There are no requirements of any insurance carrier covering the Property
or any portion thereof with which Seller has not fully complied.
8.1.18 All Permits required for the operation of the Property as it is currently
being operated have been obtained and are in full force and effect. There
are no violations under any of the Permits and, except as disclosed in
writing to Purchasers, there have been no prior violations (either actual
or alleged) under any of the Permits. Seller has no knowledge of any
circumstance which could reasonably be expected to result in the
withdrawal, revocation or suspension of any Permit. Neither Seller nor the
Property has applied for or received any allowable variances or other
exemptions from applicable regulatory requirements.
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8.1.19 There are no actions, suits, proceedings or claims pending or, to
Seller's knowledge, threatened with respect to or in any manner affecting
the Property or the ability of the Seller to consummate the transaction
contemplated by this Agreement. Seller covenants and agrees to indemnify
and hold harmless (including for all reasonable legal fees and all other
costs and expenses) Purchaser on account of any actions, demands, suits,
proceedings, liabilities or obligations arising or accruing in connection
with the Property from acts or omissions of Seller occurring prior to
Closing.
8.1.20 There are no pending or threatened condemnation or similar proceedings
affecting the Property, or any part thereof, and to the best of Seller's
knowledge, no such proceeding is contemplated by any governmental
authority. The Property is not situated within any special assessment
district other than the districts revealed by the most recent statement for
real property taxes for the Property. The Property is not subject to any
special assessments except for those relating to such districts. Seller has
no knowledge of any proposal under which the Property is to be placed in
any other special assessment district.
8.1.21 To the best of Seller's knowledge,
(a) the Property does not contain asbestos or material containing asbestos;
(b) the Property does not contain PCBs or PCB Items, as those terms are defined
in 40 C.F.R. Part 761;
(c) the Property does not contain above ground or underground storage tanks, as
those terms are defined in 42 U.S.C. Section 6901 et seq. ("RCRA");
(d) there is and has been no release of petroleum into the environment from an
above ground or underground storage tank at the Property, as those terms
are defined in RCRA;
(e) there is and has been no release or threatened release, other than
federally permitted releases, of hazardous substances or pollutants or
contaminants into the environment from or through the Property as those
terms are defined in 42 U.S.C. Section 9601 et seq. ("CERCLA");
(f) the Property is not used, and has not been used, for the generation,
transportation, treatment, storage or disposal of hazardous substances,
pollutants, or contaminants, as those terms are defined in CERCLA and RCRA;
(g) the Property is in compliance with all applicable federal, state and local
environmental statutes, regulations, ordinances, and any permits,
approvals, or judicial or administrative orders issued thereunder; and
(h) the Property contains no conditions that could result in recovery by any
governmental or private party of remedial or removal costs, natural
resource damages, property damages, damages for personal injuries, or other
costs, expenses or damages, or could result in injunctive relief, arising
from any alleged injury or threat of injury to health, safety, or the
environment relating to the Property.
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Without limiting the representation in this Section 8.1.21, Sellers agree to
indemnify, defend and hold harmless Purchasers from and against any and all
liabilities, losses, damages, claims, costs and expenses (including, without
limitation, reasonable attorneys' fees) arising in connection with the presence
of any hazardous substance on, under, in or about the Woodside Village Property
resulting directly or indirectly from any leaks in any underground storage tanks
now or heretofore located under the real property situated northwest of the
Woodside Village Property across Rockside Road, which real property is as of the
Effective Date referred to as the "Sam's Club site." This indemnity shall
survive the Closing for a period of two (2) years from the Closing Date.
8.1.22 The stated maturity date of the Xxxxx Xxxx Loan is October 1, 1999; the
stated maturity date of the Bella Vita Loan is July 1, 2035; the stated
maturity date of the Woodside Village Loan is October 1, 1999; and the
stated maturity date of the Wyndham Lakes Loan is March 31, 2006; and none
of the foregoing maturity dates has been accelerated or extended as of the
date hereof. The copies of all documents delivered by Seller to Purchaser
hereunder with respect to each Loan relating to a Property are true,
accurate and complete copies of such documents (including all amendments or
modifications thereto) and do not omit any material terms. To Seller's
knowledge, there exists no default or event which, with the passing of time
or the giving of notice or both, could constitute a default under any of
the documents evidencing or securing or otherwise relating to such Loan.
8.1.23 All representations and warranties made by Sellers in this Agreement, and
all information contained in any statement, document or certificate
furnished to Purchasers in connection with this transaction, are free from
any untrue statement of material fact and do not omit to state any material
facts necessary to make the statements contained herein or therein not
misleading. The copies of any documents furnished to Purchasers in
connection with this transaction are true and complete copies of the
documents they purport to be.
8.2 Purchaser Representations. Each Purchaser represents and warrants to the
applicable Seller with respect to such Purchaser that:
8.2.1 Aspen Xxxxx Xxxx is a limited liability company duly organized and
existing and in good standing under the laws of the State of Colorado.
Purchaser has full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Each of the persons
signing this Agreement on behalf of Purchaser is authorized to do so.
8.2.2 Aspen Bella Vita is a limited liability company duly organized and
existing and in good standing under the laws of the State of Colorado.
Purchaser has full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Each of the persons
signing this Agreement on behalf of Purchaser is authorized to do so.
8.2.3 Aspen Woodside Village is a limited liability company duly organized and
existing and in good standing under the laws of the State of Colorado.
Purchaser has full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Each of the persons
signing this Agreement on behalf of Purchaser is authorized to do so.
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8.2.4 Aspen Wyndham Lakes is a limited liability company duly organized and
existing and in good standing under the laws of the State of Colorado.
Purchaser has full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Each of the persons
signing this Agreement on behalf of Purchaser is authorized to do so.
8.2.5 No third party approval or consent is required to enter into this
Agreement or to consummate the transaction contemplated hereby, except to
the extent that Lender approvals are required under Section 7 hereof and
except for the HUD Consent. To the best of Purchaser's knowledge, the
entering into and consummation of the transactions contemplated hereby will
not conflict with, or with or without notice or the passage of time or
both, constitute a default under, any contract, lease or other agreement to
which Purchaser is a party or by which Purchaser may be bound or of any
law, rule, license, regulation, judgment, order or decree governing or
affecting any Purchaser or Property. This Agreement and all documents
required hereby to be executed by Purchaser are and shall be valid, legally
binding obligations of and enforceable against Purchaser in accordance with
their terms.
8.2.6 Purchasers have available funds sufficient to pay the Purchase Price.
8.3 Effective Date; Survival. All of the representations and warranties made by
Sellers or Purchasers in this Section 8 are made as of the Effective Date.
At Closing, each Seller shall deliver to the applicable Purchaser a
certificate pursuant to which such Seller shall reaffirm the
representations and warranties made by such Seller in Section 8.1 as of the
date of Closing, and each Purchaser shall deliver to the applicable Seller
a certificate pursuant to which such Purchaser shall reaffirm the
representations and warranties in Section 8.2 as of the date of Closing.
All of such representations shall survive Closing.
8.4 No Other Representations. Purchasers acknowledge and agree as follows: (a)
except as specifically set forth in this Agreement, Sellers have made no
representations or warranties of any kind whatsoever, express or implied,
in connection with this Agreement, the purchase of the Properties by
Purchasers, the physical condition of any Property or whether any Property
is appropriate for Purchaser's intended use; (b) prior to the expiration of
the Inspection Period, Purchasers shall have (or shall have chosen not to
have) fully investigated the Properties and all matters pertaining thereto;
(c) Purchasers have entered into this Agreement with the intention of
making and relying on their own investigation of the physical,
environmental, economic and legal condition of the Properties; and (d)
Purchasers are not relying on any statements, representations or
warranties, other than those specifically set forth in this Agreement, made
by Sellers or anyone acting or claiming to act on Sellers' behalves
concerning the Properties, and that Purchasers shall purchase the
Properties in their "as is" condition on the Closing Date and assume the
risk that adverse physical, environmental, economic or legal conditions may
exist. Nothing in this Section 8.4 shall be deemed to waive, modify, limit
or otherwise affect any covenant, warranty or representation or agreement
by Sellers pursuant to this Agreement, it being intended that all such
covenants, representations and warranties and agreements shall remain in
full force and effect for the benefit of Purchasers regardless of anything
herein to the contrary.
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9. Covenants of Seller. With respect to the Property owned by it, each Seller
hereby covenants with Purchasers as follows:
9.1 Operation of Property Until Closing. Prior to Closing, each Seller shall
operate and manage the Property to be conveyed by it in a normal
businesslike manner, in compliance with all applicable laws, rules and
regulations, maintaining present services and Permits, and shall perform
when due all of its obligations under the Leases, the Contracts and the
Permitted Exceptions. Prior to Closing, Purchasers will provide Sellers
with notice (the "Employment Notice") identifying which employees Purchaser
wishes to retain at the Property after the Closing (the "Designated
Employees"); upon Sellers' receipt of the Employment Notice, but subject to
Section 10.3 hereof, Sellers will terminate all employees effective as of
the Closing Date, and Purchasers shall be entitled to employ all Designated
Employees identified in the Employment Notice, and Sellers will not
thereafter transfer any Designated Employees to other facilities owned or
operated by Seller or any of its affiliates or offer other employment to
any Designated Employees. Prior to the date on which Sellers receive the
Employment Notice, Sellers will not transfer any employees to other
facilities owned or operated by Seller or any of its affiliates or offer
other employment to any employees employed in connection with the use,
management, maintenance or operation of the Property. Each Seller shall be
solely responsible for the payment and satisfaction of all liabilities
arising in favor of the terminated employees for periods prior to Closing,
and shall indemnify and hold Purchaser harmless from any such liabilities,
which obligation shall survive the Closing. Purchaser assumes no
responsibilities under or in connection with any employment agreements or
arrangements entered into by any Seller.
New Agreements. After the expiration of the Inspection Period, no Seller shall
enter into any new Leases or Contracts which will after the Closing affect
the use, operation or enjoyment of the Property to be conveyed by such
Seller without Purchaser's prior written consent, which consent may be
withheld in Purchaser's sole discretion, provided that nothing herein shall
prohibit a Seller from entering into a Lease which has a term of twelve
(12) months or less and a rental not less than those reflected on the Rent
Roll as current asking rent. Sellers shall promptly notify the applicable
Purchaser of any Leases or Contracts entered into by a Seller prior to the
expiration of the Inspection Period and shall furnish such Purchaser with a
copy thereof.
9.2 Rent. No Seller shall accept any payments of rent under any of the Leases
in advance of the then-current month.
9.3 Insurance. Each Seller shall maintain in full force and effect an "all
risk" insurance policy covering the Improvements in an amount not less than
their full replacement cost.
9.4 Condition of Property. Each Seller shall operate and maintain the Property
in good order, condition and repair.
9.5 Taxes. Each Seller shall pay, prior to delinquency, all real property and
personal property taxes which become due and payable with respect to the
Property.
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9.6 Litigation. Each Seller shall promptly advise Purchasers of the
commencement of any litigation by or against such Seller pertaining to the
Property.
9.7 Loan Documents. Each Seller shall (a) make all regular payments of
interest, principal and escrow payments on the Loans which become due and
payable on or before the Closing Date and (b) comply with all of the terms
of the documents relating to the Loans and not modify or request the waiver
of any of the terms thereof without Purchasers' prior written consent.
9.8 Termination of Contracts. Sellers shall assign to the applicable Purchaser
at Closing those Contracts which are listed in EXHIBIT G attached hereto.
Each Seller agrees to terminate, by written notice to the other party(ies)
thereto, all Contracts other than those which are listed in EXHIBIT G,
which termination shall be effective as of the earliest termination date
permitted under each such Contract. Without limiting the indemnity
contemplated by Section 10.2.7 hereof, Sellers agree to indemnify, defend
and hold harmless Purchasers from and against any and all liabilities,
losses, damages, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees) arising in connection with any Contracts which
are not listed in EXHIBIT G or terminated in accordance with this Section
9.9; this indemnity shall survive the Closing. Each Seller shall deliver
copies of all notices of termination given by any Seller hereunder to
Purchasers.
9.9 No Further Encumbrances. Prior to the Closing of any individual Property,
no Seller will grant any deed of trust, mortgage, lien, security interest
or other encumbrance encumbering such Property or Seller's interest therein
except for the Xxxxxx Terrace Loan.
10. Closing. Purchasers and Sellers agree that the purchase of the Properties
will be consummated as follows:
10.1 Closing Date. The Closing will occur on March 30, 1999 (the "Closing
Date"), at 10:00 a.m. Denver time at the offices of Purchasers' attorneys,
Xxxxx, Johnson, Robinson, Xxxx & Xxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000.
10.2 Closing. Each of the following shall take place at the Closing:
10.2.1 Each Seller will deliver to the applicable Purchaser a duly executed and
acknowledged deed, conveying to Purchaser all of Seller's right, title and
interest in and to the Real Property owned by such Seller, subject only to
the Leases and the Permitted Exceptions. Each deed delivered pursuant to
this Section 10.2.1 shall be a special warranty deed unless a Property is
situated in a jurisdiction that does not recognize special warranty deeds,
in which event the deed shall be in the form customarily used in such
jurisdiction for commercial property transactions.
10.2.2 Purchasers will pay to Sellers the balance of the Purchase Price, subject
to adjustment as set forth in Section 11 hereof.
10.2.3 Sellers will deliver to Purchasers possession of the Properties.
10.2.4 Sellers will deliver to Purchasers all keys to the Improvements and any
motor vehicles and the originals of all Leases, Contracts, Permits and
Warranties in Sellers' possession.
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10.2.5 Each Seller will deliver to the applicable Purchaser a duly executed
special warranty xxxx of sale, conveying all of such Seller's right, title
and interest in and to the Personal Property owned by such Seller. In
addition, to the extent any of the Personal Property consists of motor
vehicles, Sellers will deliver to Purchasers the original titles to such
vehicles, free and clear from any and all liens. Without limiting the
foregoing, ARV will also deliver to Aspen Xxxxx Xxxx title to the phones
and phone system used in connection with the Xxxxx Xxxx Property, as
described in Schedule A/Addendum A to that certain agreement dated August
8, 1995, between Xxxxx Xxxx Retirement Community and The Huntington Leasing
Company, and such phones and phone system will be delivered free and clear
from any and all liens, including any lien of The Huntington Leasing
Company.
10.2.6 Each Seller and Purchaser will deliver to each other a duly executed
assignment and assumption of leases, pursuant to which each Seller shall
assign all of its right, title and interest in and to the Leases pertaining
to its Property to the applicable Purchaser, and such Purchaser shall
assume and agree to perform all of the landlord's obligations under the
Leases arising from and after the Closing Date; such Seller shall agree to
indemnify, protect, defend and hold such Purchaser harmless from and
against any and all claims, damages, liabilities, losses, costs or
expenses, including reasonable attorneys' fees, asserted against or
suffered or incurred by such Purchaser as a result of or in connection with
any liabilities or obligations arising under the Leases and relating to
periods prior to the Closing Date; and such Purchaser shall agree to
indemnify, protect, defend and hold such Seller harmless from and against
any and all claims, damages, liabilities, losses, costs and expenses,
including reasonable attorneys' fees, asserted against or suffered or
incurred by such Seller as a result of or in connection with any
liabilities or obligations arising under the Leases and relating to periods
from and after the Closing Date.
10.2.7 Each Seller and Purchaser will deliver to each other a duly executed
general assignment, pursuant to which such Seller shall assign to the
applicable Purchaser all of such Seller's right, title and interest in and
to the Contracts, the Permits, the Warranties, the Plans and the Intangible
Property, and such Purchaser shall assume and agree to perform all of such
Seller's obligations thereunder; such Seller shall agree to indemnify,
protect, defend and hold such Purchaser harmless from and against any and
all claims, damages, liabilities, losses, costs or expenses, including
reasonable attorneys' fees, asserted against or suffered or incurred by
such Purchaser as a result of or in connection with any liabilities or
obligations arising under the Contracts and relating to periods prior to
the Closing Date; and such Purchaser shall agree to indemnify, protect,
defend and hold such Seller harmless from and against any and all claims,
damages, liabilities, losses, costs and expenses, including reasonable
attorneys' fees, asserted against or suffered or incurred by such Seller as
a result of or in connection with any liabilities or obligations arising
under the Contracts and relating to periods from and after the Closing
Date. In furtherance hereof, Sellers will cooperate with Purchasers to file
such trade name affidavits or similar instruments as may be required to
transfer to Purchasers the names under which the Properties operate.
10.2.8 Sellers shall deliver to Purchasers signed notifications to be sent to
each tenant under the Leases after Closing advising of the transfer of
ownership and directing that all further payments of rent be made as
directed by Purchasers.
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10.2.9 Sellers and Purchasers shall execute and/or deliver, as applicable, such
assumption agreements, legal opinions, certificates, title insurance
policies or endorsements and other documents as a Lender may require in
connection with assumption of its Loan. If no Loan is to be assumed with
respect to a Property, then Seller shall instead deliver to the Title
Company at the Closing such payoff letters and/or releases as the Title
Company requires to cause a release of any liens or encumbrances affecting
such Property as of the Closing Date.
10.2.10 Sellers and Purchasers will deliver to each other a duly executed
certificate as contemplated by Section 8.3 hereof. Each Seller's
certificate will contain an update to the Rent Roll indicating any matters
thereon that have changed from the date of the Rent Roll to the Closing
Date.
10.2.11 ARV will deliver to Aspen Woodside Village such documents as are
necessary or desirable to assign the claims and insurance proceeds
described in Section 8.1.14 hereof.
10.2.12 To the extent applicable, the applicable Sellers and Purchasers will
execute the escrow agreements contemplated by Section 7.3 hereof.
10.2.13 Sellers shall cause the Title Company to issue, or unconditionally
commit to issue, to Purchaser its standard form ALTA extended coverage
owner's policy of title insurance insuring marketable, insurable title to
each parcel of Real Property in the amount of that portion of the Purchase
Price allocable thereto, subject only to the Permitted Exceptions and the
Leases (collectively, the "Title Policies").
10.2.14 Each Seller and Purchaser will deliver to the Title Company such
affidavits and agreements as the Title Company may require or request to
consummate the transactions contemplated by this Agreement.
10.2.15 Each Seller will deliver to the applicable Purchaser an affidavit of
such Seller that evidences that it is exempt from the withholding
requirements of Section 1445 of the Internal Revenue Code.
10.2.16 To the extent required by law, each Seller will deliver to the
applicable Purchaser an affidavit of such Seller concerning compliance
with, or exemption from, any applicable withholding laws of the states in
which the Properties are located.
10.2.17 Sellers and Purchasers will execute and deliver any applicable transfer
tax, transfer declaration, ownership information or other similar
disclosure forms or reports required by the laws of the states in which the
Properties are located.
10.2.18 Each Seller and Purchaser will execute settlement statements reflecting
the Purchase Price allocable to the Property conveyed by such Seller to the
applicable Purchaser and all adjustments and prorations to be made thereto
pursuant to this Agreement including, without limitation, Section 11 below,
and will pay, in immediately available funds, any amounts required to be
paid by such party thereunder.
10.2.19 Sellers and Purchasers shall execute and deliver such other documents
and shall take such other action at Closing as may be necessary or
appropriate to carry out their
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respective obligations under this Agreement, without further
representations or warranties other than those contained herein.
10.3 Interim Management. If a Purchaser is unable to obtain all required permits
and licenses with respect to any Property on or before the Closing Date,
then Purchasers and Sellers shall nevertheless proceed to Closing (subject
to Section 7 hereof), and, with respect to the Property or Properties for
which a Purchaser has not obtained such permits and licenses (the
"Non-Licensed Properties"), the applicable Purchaser will acquire title to
the Non-Licensed Properties, and concurrently therewith each Seller
conveying a Non-Licensed Property and such Purchaser will enter into a
written lease and/or management agreement in substantially the forms
attached hereto as EXHIBIT H. The parties agree to make such changes to
such lease and/or management agreements as are reasonably necessary to
comply with the requirements of all authorities responsible for issuing
permits and licenses for the Properties. To the extent that any fines,
penalties, assessments or other amounts are levied by any governmental or
quasi-governmental authority or agency as a result of (a) the parties'
failure to provide notice of the sale of the Properties within the required
time period and/or (b) the Closing taking place prior to the expiration of
any applicable notice periods, then, in any such event, Sellers shall be
responsible for the payment of all such fines, penalties, assessments and
other amounts, and Sellers' obligations with respect thereto shall survive
the Closing. In furtherance hereof, Sellers will provide Purchasers with a
credit against the Purchase Price allocable to the Bella Vita Property and
the Wyndham Lakes Property in the amount of $5,000 for each such Property,
representing the parties' estimate of the fines that may be assessed
against the parties and/or such Properties as a result of the Closing
taking place prior to the expiration of all applicable notice periods.
Notwithstanding anything to the contrary in this Section, if any
governmental or quasi-governmental authority or agency is required to
review any lease/management arrangement contemplated hereby and such
authority or agency rejects or disallows such lease/management arrangement
for any reason whatsoever, then, at Purchasers' option, this Agreement
shall terminate, the Deposit shall be returned to Purchasers, and the
parties shall be relieved from all obligations hereunder except Surviving
Obligations. Upon termination of the lease/management arrangement described
in this Section 10.3, Purchasers shall be entitled to employ all Designated
Employees and Sellers will not thereafter transfer any Designated Employees
to other facilities owned or operated by Seller or any of its affiliates or
offer other employment to any Designated Employees.
10.4 Right of First Refusal; Exclusive Right to Negotiate.
10.4.1 Right of First Refusal. For the period from the Effective Date to and
including March 31, 2000, Purchasers and/or their affiliates (the "Buying
Parties") shall have a first right of refusal (the "Right of First
Refusal") with respect to the sale or transfer of any of the real property
or real property interests (including, without limitation, leasehold
interests) of Sellers and/or their affiliates (the "Selling Parties") as of
the date hereof in those properties listed in EXHIBIT I attached hereto
(which real property, together with any interest a Selling Party has in an
entity which owns or leases such real property or real property interests,
are referred to herein as the "Other Assets"), and Sellers hereby grant to
Buying Parties such Right of First Refusal with respect to the Other
Assets. If at any time or times during the term of such Right of First
Refusal, any Selling Party receives an offer acceptable to it for
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the purchase or transfer of an Other Asset, then the applicable party will
forthwith forward a copy of such offer ("Acceptable Offer") to the Buying
Parties at the address set forth in Section 16.9 of this Agreement. Buying
Parties shall have a period of thirty (30) days after receiving such copy
of the Acceptable Offer within which to notify the applicable Selling Party
that Buying Parties wish to purchase the Property on the terms contained in
the Acceptable Offer. If Buying Parties do not notify the applicable
Selling Party within such 30-day period, then the applicable Selling Party
may sell or transfer such Other Asset to the party who submitted the
Acceptable Offer on the terms specified therein. Notwithstanding any such
relinquishment, Buying Parties' rights under the Right of First Refusal
shall remain in effect with respect to any Other Asset not covered by the
Acceptable Offer, and if the transaction contemplated by the Acceptable
Offer fails to close for any reason within one hundred twenty (120) days
after Buying Parties' rejection or deemed rejection of an Acceptable Offer,
with respect to any subsequent offer to purchase or transfer any or all of
the Other Assets covered by such Acceptable Offer. On or before the
Closing, Sellers will provide Purchasers with a list of the Other Assets,
together with legal descriptions therefor. At Purchasers' request, Sellers
will execute and deliver to Purchasers one or more memoranda describing the
Right of First Refusal, and Sellers agree that Purchasers may record such
memoranda in all applicable real estate records; provided, that if any
existing loan documents or lease documents relating to any Other Asset
prohibit the recording of a memorandum, Sellers shall use their best
efforts to obtain the consent of any lender and/or landlord, as applicable,
to recordation of such a memorandum, and the parties shall not record a
memorandum with respect to an Other Asset until the applicable consents are
obtained. The parties' agreements and obligations under this Section shall
survive the Closing.
10.4.2 Exclusive Right to Negotiate. For the period from the Effective Date to
and including April 30, 1999, Buying Parties shall have the sole and
exclusive right to negotiate with Selling Parties for the sale or transfer
of any or all of the Other Assets. Sellers agree that during such period of
time, Sellers shall not offer for sale or transfer, solicit any offer for
sale or transfer, entertain any offer for sale or transfer, discuss the
possible sale or transfer of, list or market, directly or indirectly, any
or all of the Other Assets. The parties will negotiate with each other in
good faith during such period of time to endeavor to reach a definitive
agreement(s) with respect to the Other Assets; provided, this provision
shall not impose on any party an enforceable obligation to enter into any
such purchase and sale agreement. In furtherance hereof, Sellers, on behalf
of themselves and Selling Parties, shall cease any and all current
negotiations, and not pursue any prior negotiations, with other parties for
the sale or transfer or all or any of the Other Assets.
11. Adjustments and Prorations. The applicable Seller and the applicable
Purchaser shall make the adjustments and prorations at the Closing for each
of the Properties, which adjustments and prorations shall be reflected,
where appropriate, on the settlement sheets described in Section 10.2.18
above:
11.1 Rentals. All income from the Leases and any portion of the Property (such
as, e.g., parking rents or laundry income) shall be prorated as of the
Closing on the basis that Purchaser shall receive a credit for all rent
which Seller has actually received as of the Closing which is allocable to
the period after the Closing. Purchaser shall receive all income
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accruing on the Closing Date and thereafter. Seller shall receive all
income accruing prior to the Closing Date. Delinquent rent due from tenants
under the Leases prior to the Closing collected by Purchaser after the
Closing shall be paid over by Purchaser to Seller as and when collected.
Any rents collected by Purchaser after Closing shall be first applied to
the current month's rent due on the date of receipt or rent to become due
within fourteen days thereafter, then to delinquent rents for any period
occurring from and after the Closing Date and then to delinquent rents for
any period occurring prior to the Closing Date. Each Seller shall also give
Purchaser credit for any security and other deposits held under the terms
of the Leases.
11.2 Ad Valorem Taxes. All real estate and personal property taxes attributable
to the Properties shall be prorated at Closing. Each Seller shall pay all
such taxes attributable to its Property for any period prior to the Closing
Date. If the applicable tax rate and assessments for the Property have not
been established for the year in which Closing occurs, the proration of
real estate and/or personal property taxes, as the case may be, shall be
based upon the most recent tax statement for each Property, with such
proration to be adjusted in cash between Sellers and Purchasers promptly
after presentation of written evidence that the actual taxes payable for
the year in which Closing occurs differ from the amounts used for proration
purposes at Closing. Without limiting the foregoing, Sellers have
represented to Purchasers that, with respect to the Woodside Village
Property, Sellers have filed B.O.R. Complaint No. 1658 (1997) with the
Cuyahoga County Board of Revision and, with respect to the Xxxxx Xxxx
Property, Sellers have filed Tax Appeal No. 98-N-168 with the Ohio Board of
Tax Appeals (together, the "Tax Challenge"), relating to periods prior to
the year of Closing. At Sellers' sole cost and expense, Sellers shall have
the right, but not the obligation, to exclusively prosecute, settle and
appeal the Tax Challenge, and Sellers shall be entitled to all refunds (and
responsible for any increases) attributable thereto for the period prior to
the year of Closing of the Woodside Village Property and the Xxxxx Xxxx
Property.
11.3 Operating Expenses. Sellers and Purchasers shall attempt to have all
Contracts and any other agreements that affect the Properties and for which
the charges are based upon usage (including utilities) billed or read as of
a date as close to the Closing Date as is reasonably possible. Charges for
any of the same which are not read on the Closing Date shall be prorated
between Purchaser and Seller based on the number of days during the period
covered by the statement therefor during which each party owned the
Property, allocating the Closing Date to Purchaser. Each Seller shall be
entitled to a credit at Closing for the amount of any deposits that such
Seller has made with any of the utility services or companies servicing the
Property to be conveyed by such Seller. Purchaser shall arrange with all
utility services and companies servicing the Properties to have new
accounts started in the name of Purchaser beginning at 12:01 a.m. local
time on the Closing Date. Notwithstanding anything to the contrary in this
Section 11.3 (or elsewhere in this Agreement), Sellers shall be solely
responsible as provided in Section 9.1 for all liabilities arising in favor
of terminated employees for periods prior to Closing, and there shall be no
proration or adjustment therefor.
11.4 Food and Medical Inventories. Between the Effective Date and the Closing
Date, Sellers shall maintain Food and Medical Inventories with a cost basis
to Sellers in approximately the same amount as the cost basis of the Food
and Medical Inventories reflected in the
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description delivered by Sellers to Purchasers pursuant to Section 5.2
hereof (the "Basic Inventory Amount"). If, at the time of Closing, the
Sellers' cost basis for the Food and Medical Inventories then on hand shall
exceed the Basic Inventory Amount, then Purchasers shall reimburse Sellers
for the excess food and medical inventories, based on Sellers' actual cost
thereof. If, at the time of Closing, the Sellers' cost basis for the food
and medical inventories then on hand is less than the Basic Inventory
Amount, then Sellers shall pay to Purchasers an amount equal to the actual
cost of restoring the Food and Medical Inventories to the Basic Inventory
Amount. Possession of the Food and Medical Inventories shall be delivered
to Purchasers at Closing..
11.5 Interest. Interest payments with respect to the Loans shall be prorated as
of the Closing Date. All escrow and reserve accounts, if any, maintained by
any Lender shall be transferred to the applicable Purchasers.
11.6 Excise, Transfer and Sales Taxes. Sellers, on the one hand, and Purchasers,
on the other hand, shall bear in equal shares all excise, sales and use
taxes imposed with respect to the transaction contemplated by this
Agreement, and Sellers shall pay all transfer taxes (including the payment
of documentary fees) associated with the conveyance of the Properties to
Purchasers.
11.7 Closing Costs. Sellers shall be responsible for the payment of (a) with
respect to each Property, the premium for a standard ALTA owner's title
insurance policy in the amount of the Purchase Price allocable to such
Property, (b) any Lenders' Fees attributable to the Bella Vita Loan,
one-half of any assumption fee relating to the Wyndham Lakes Loan and any
prepayment fees or penalties arising in connection with any Loan not
assumed by Purchasers, (c) all recording costs, (d) the fees of Sellers'
attorneys and (e) one-half of any closing fee charged by the Title Company.
Purchasers shall be responsible for the payment of (a) all costs of
conducting its investigations of the Properties, (b) any Lenders' Fees
attributable to any of the Loans other than the Bella Vita Loan, provided
that Purchasers shall be responsible for only one-half of any assumption
fee relating to the Wyndham Lakes Loan, (c) any premium attributable to
obtaining extended coverage under the owner's title insurance policies
and/or the issuance of special endorsements to such policies, (d) the fees
of Purchasers' attorneys, and (e) one-half of any closing fee charged by
the Title Company.
11.8 Insurance. Purchasers understand that Sellers shall cause all property and
liability insurance currently being carried by Sellers to be canceled at
Closing, and Purchasers shall be responsible for obtaining new insurance
coverage with respect to the Properties as of Closing.
11.9 Date of Prorations. The prorations and adjustments provided for in this
Section 11 shall be made so that the Purchasers shall receive the income
and be charged with the expense of the operation of each Property after the
Closing Date.
12. Casualty Damage.
12.1 Notice and Estimate. If any of the Improvements are damaged by any casualty
prior to Closing, Sellers shall promptly give Purchasers written notice of
such occurrence, and as
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soon thereafter as practicable, shall provide Purchasers with an estimate
made by an architect, engineer or contractor selected by Sellers of the
cost and amount of time required to repair such damage. If it is so
estimated that it will take longer than until the Closing Date to repair
such damage and if neither Sellers nor Purchasers terminates this Agreement
pursuant to Section 12.3, then Purchasers shall be given an opportunity to
review and approve any construction contract which any Seller proposes to
enter into to have such damage repaired.
12.2 Minor Damage. If the estimated cost of repairing such damage is less than
$250,000.00, then the Seller which owns the Improvements affected shall
promptly contract for and commence the repairs and complete so much thereof
as may be accomplished prior to Closing. If such repairs are not completed
on or before Closing, then at the applicable Purchaser's option (which
shall be exercised by notice to Sellers given on or before the Closing
Date), either (a) the Closing Date shall be extended by the period of time
that Sellers' architect, engineer or contractor then estimates it will take
to complete the repairs and, upon completion thereof, the parties shall
schedule a new Closing Date (not later than 10 days following such
completion) and then close the transaction contemplated hereby in
accordance with the terms hereof; or (b) the Closing shall take place as
scheduled and, at Closing, such Seller shall assign to the applicable
Purchaser so much of the insurance proceeds resulting from such damage as
have not then been expended for repairs, such Seller shall credit the
applicable Purchaser with the amount of any deductible under Seller's
insurance policy that has not then been expended for repairs and such
Seller shall assign to the applicable Purchaser, and the applicable
Purchaser shall assume, the rights and obligations under any construction
contract pursuant to which such repairs are being completed. Such Seller
shall also assign to the applicable Purchaser the proceeds of any business
interruption insurance which would supplement the income from the
Improvements during the period of any restoration thereof, but only to the
extent of any such proceeds which relate to periods after Closing.
12.3 Major Damage. If the estimated cost of such repairs is $250,000.00 or more,
then Purchasers may elect to terminate this Agreement with respect to the
Property affected by the casualty upon written notice to Sellers given
within ten (10) days after Purchasers' receipt of the estimate described in
Section 12.1, in which event this Agreement shall terminate with respect to
such Property, all parties shall be relieved of any further obligations
hereunder with respect to such Property except for any Surviving
Obligations, and the allocable portion of the Deposit shall be refunded to
Purchasers; however, if Purchasers do not elect to so terminate this
Agreement, then this Agreement shall remain in full force and effect and
the parties shall proceed in accordance with Section 12.2 above.
13. Condemnation.
13.1 Notice. If prior to Closing, Sellers learn of any actual or threatened
taking in condemnation or by eminent domain (or a sale in lieu thereof) of
all or any portion of the Real Property, Sellers will notify Purchasers
promptly thereof.
Termination. Other than with respect to an "Immaterial Taking" (as defined
below), any actual or threatened taking or condemnation for any public or
quasi-public purpose or use by any
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competent authority in appropriate proceedings or by any right of eminent
domain of all or any part of the Real Property between the Effective Date
and the Closing shall, at Purchasers' option, cause a termination of this
Agreement. The election to terminate provided hereby must be exercised by
Purchasers (or will be deemed to have been waived) by written notice to
Sellers to that effect given within 15 days following Purchasers' receipt
of Sellers' notice pursuant to Section 13.1 above. Upon delivery of such
termination notice, Purchasers and Sellers shall be relieved of any
obligations hereunder except for Surviving Obligations, and the Deposit
shall be refunded to Purchasers. If Purchasers shall not elect to so
terminate this Agreement, or in the event of an Immaterial Taking, Sellers
shall be relieved of all obligations under this Agreement with respect to
the portion of the Real Property so taken or condemned, but the applicable
Purchaser will be entitled to receive all proceeds of any such taking or
condemnation, and Sellers agree that they will not make any adjustment or
settlement of any such taking or condemnation proceeding without
Purchasers' consent and will take at Closing all action necessary to assign
their entire interest in such award to the applicable Purchaser. Any taking
or condemnation for any public or quasi-public purpose or use which does
not affect access or, if applicable, reduce parking or take any part of the
Improvements shall be deemed an "Immaterial Taking."
14. Brokers and Commissions.
14.1 Broker's Fee. Sellers and Purchasers represent and warrant to each other
that they have not negotiated or dealt with any real estate broker,
salesperson or agent in connection with the making of this Agreement or the
transaction contemplated hereby, or incurred any liability for the payment
of any brokerage fee, commission or compensation to any such broker,
salesperson or agent.
14.2 Other Commissions. Sellers agree to indemnify and hold Purchasers harmless
from and against any loss, liability, damage, cost or expense (including,
without limitation, court costs and reasonable attorneys' fees) paid or
incurred by any Purchaser by reason of any claim to any broker's, finder's
or other fee in connection with this transaction by any party claiming by,
through or under Sellers. Purchasers agree to indemnify and hold Sellers
harmless from and against any loss, liability, damage or expense
(including, without limitation, court costs and reasonable attorneys' fees)
paid or incurred by any Seller by reason of any claim to any broker's,
finder's or other fee in connection with this transaction claiming by,
through or under Purchasers.
15. Remedies.
15.1 Sellers' Default. In the event that any Seller shall fail to perform any of
the material covenants or agreements contained herein which are to be
performed by such Seller, Purchasers may, at their option, either (i)
terminate this Agreement by giving written notice of termination to
Sellers, whereupon Escrow Agent shall return the Deposit to Purchaser and
both Purchasers and Sellers shall be relieved of any further obligations or
liabilities hereunder except for Surviving Obligations; or (ii) seek
specific performance of this Agreement and/or damages.
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Purchaser's Default. In the event that any Purchaser shall fail to perform any
of the material covenants or agreements contained herein which are to be
performed by such Purchaser, Sellers may, at their option and as their
exclusive remedy, terminate this Agreement by giving written notice of
termination to Purchasers, whereupon Escrow Agent shall pay the Deposit to
Sellers as liquidated damages and both Purchasers and Sellers shall be
relieved of any further obligations or liabilities hereunder except for
Surviving Obligations.
16. General Provisions. The parties further agree as follows:
16.1 Confidentiality. Each party shall hold in strict confidence all documents
and information concerning the other and its business and properties and if
the transaction contemplated hereby should not close, such confidence shall
be maintained, and all such documents and information (in written form)
shall immediately thereafter be returned to the party originally furnishing
the same. No public disclosure, either written or oral, of the existence or
terms of this Agreement shall be made by either Purchasers or Sellers
without the consent of the other. The foregoing provision shall not,
however, be construed to prohibit any party from making any disclosures to
any governmental authority which it is required to make by law or to
prohibit any party from disclosing to its investors, lenders, accountants,
consultants and attorneys such terms of this transaction as are customarily
disclosed to them in connection with similar acquisitions.
16.2 Conditions Precedent. Sellers' obligations to close under this Agreement
shall be subject to Purchasers' performance of all of the covenants,
agreements and obligations required to be performed by Purchasers under
this Agreement. Purchasers' obligations to close under this Agreement shall
be subject to Sellers' performance of all of the covenants, agreements and
obligations required to be performed by Sellers under this Agreement.
16.3 Time. Time is of the essence of this Agreement and Sellers' and Purchaser's
obligations hereunder.
16.4 Attorneys' Fees. In the event it becomes necessary for any Purchaser or
Seller to file a suit to enforce this Agreement or any provisions contained
herein, the prevailing party in such suit shall be entitled to recover, in
addition to all other remedies or damages, reasonable attorneys' fees and
court costs incurred in such suit.
16.5 Entire Agreement. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by the parties hereto. This
Agreement contains the entire agreement between the parties relating to the
purchase and sale of the Properties. All prior negotiations and writings
between the parties are merged in this Agreement and there are no promises,
agreements, conditions, undertakings, warranties or representations, oral
or written, express or implied, between the parties other than as set forth
herein.
16.6 Survival. All of the parties' representations, warranties, covenants and
agreements hereunder, to the extent not fully performed or discharged by or
through the Closing, shall not be deemed merged into any instrument
delivered at Closing and shall remain fully enforceable thereafter.
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16.7 Dates. If any date set forth in this Agreement for the delivery of any
document or the happening of any event should, under the terms hereof, fall
on a weekend or holiday, then such date shall be automatically extended to
the next succeeding weekday that is not a holiday.
16.8 Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado.
16.9 Notices. All notices, demands or other communications required or permitted
to be given hereunder shall be in writing and any and all such items shall
be deemed to have been duly delivered upon personal delivery; or as of the
third business day after mailing by United States mail, certified, return
receipt requested, postage prepaid, addressed as follows; or as of 12:00
Noon on the immediately following business day after deposit with Federal
Express or a similar overnight courier service, addressed as follows; or as
of the third business hour (a business hour being one of the hours from
8:00 a.m. to 5:00 p.m. on business days) after transmitting by telecopier
to the telecopy number set forth below:
If to Sellers, to:
ARV Assisted Living, Inc.
000 Xxxxxxx Xxxxxx, X-0
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
ARV Assisted Living, Inc.
000 Xxxxxxx Xxxxxx, X-0
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
If to Purchaser, to:
Aspen Retirement Corporation
000 X. Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx, Johnson, Robinson, Xxxx & Xxxxxxxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
or to such other address or such other person as any party shall designate
to the other for such purpose in the manner hereinabove set forth.
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16.10 Section 1031 Exchange. Notwithstanding anything to the contrary in this
Agreement, Sellers and Purchasers agree that Purchasers, or any of them,
may assign this Agreement (or all or any portion thereof or rights therein)
to one or more qualified intermediaries (collectively, an "Intermediary"),
as that term is defined in the deferred like-kind exchange regulations (the
"Regulations") promulgated under Section 1031 of the Internal Revenue Code
of 1986, as amended, to act in place of any Purchaser as the purchaser of
the Property to be conveyed to such Purchaser by the applicable Seller in
effecting a deferred or simultaneous like-kind exchange of one or more of
the Properties under the Regulations. Upon assignment of a Purchaser's
rights under this Agreement to an Intermediary, Purchaser's Intermediary
shall be substituted for such Purchaser in this Agreement as the purchaser
of the Property to be acquired by such Purchaser; provided, however, that
such Purchaser shall not be released of any of its obligations hereunder as
a result of such assignment. Sellers agree to accept the consideration and
all other required performance under this Agreement and any written
instructions from a Purchaser's Intermediary and to render its performance
of all of its obligations to such Purchaser's Intermediary. Sellers agree
that performance by a Purchaser's Intermediary will be treated as
performance by the applicable Purchaser. Purchasers agree that Sellers'
cooperation with Purchasers hereunder shall not require Sellers to incur
any out-of-pocket expenses, and Purchasers further agree to indemnify and
hold harmless Sellers from and against any and all damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees and
expenses but excluding any attorneys' fees and expenses incurred by Sellers
in connection with their review of the documents reasonably necessary to
effect Purchasers' exchange) incurred by Sellers as a result of a
Purchaser's assignment of this Agreement (or portions thereof or rights
thereunder) to an Intermediary.
16.11 No Recording. Neither this Agreement nor any memorandum hereof may be
recorded by any party hereto; provided, however, that on the Closing Date,
BVARV will execute and deliver to Aspen Bella Vita a memorandum setting
forth Aspen Bella Vita's right to acquire the Bella Vita Property subject
only to the parties' receipt of the consent of the Lender of the Bella Vita
Loan, and Sellers agree that Aspen Bella Vita may record such memorandum in
the real property records of Sarasota County, Florida.
16.12 Headings. The headings which appear in some of the Sections of this
Agreement are for purposes of convenience and reference and are not in any
sense to be construed as modifying the Sections in which they appear.
16.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed a duplicate original.
16.14 Assignment. Except as provided in Section 16.10 hereof, this Agreement
cannot be assigned in whole or in part by either party without the prior
written consent of the other; provided, that Purchasers, or any of them,
may assign their interests in this Agreement to any parent, subsidiary or
other affiliate of Purchasers without Sellers' consent.
16.15 Successors and Assigns. Subject to Section 16.14, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below.
SELLERS:
ARV ASSISTED LIVING, INC., a Delaware
corporation
Date: March 26 , 1999 By: /s/ Xxxx X. Xxxxxx
------ ------------------------------------
Title: Vice President - Asset Strategy
------------------------------------
BELLA VITA ARV, INC., a Florida
corporation
Date: March 26 , 1999 By: /s/ Xxxx X. Xxxxxx
------ ------------------------------------
Title: Vice President, Treasurer
------------------------------------
PURCHASERS:
ASPEN XXXXX XXXX, LLC, a Colorado
limited liability company
Date: March , 1999 By: /s/ Xxxxxx X. Xxxxxx
------ ------------------------------------
Xxxxxx X. Xxxxxx, Manager
ASPEN BELLA VITA, LLC, a Colorado
limited liability company
Date: March , 1999 By: /s/ Xxxxxx X. Xxxxxx
------ ------------------------------------
Xxxxxx X. Xxxxxx, Manager
ASPEN XXXXXX TERRACE, LLC, a Colorado
limited liability company
Date: March , 1999 By: /s/ Xxxxxx X. Xxxxxx
------ ------------------------------------
Xxxxxx X. Xxxxxx, Manager
ASPEN WOODSIDE VILLAGE, LLC, a Colorado
limited liability company
Date: March , 1999 By: /s/ Xxxxxx X. Xxxxxx
------ ------------------------------------
Xxxxxx X. Xxxxxx, Manager
ASPEN WYNDHAM LAKES, LLC, a Colorado
limited liability company
Date: March , 1999 By: /s/ Xxxxxx X. Xxxxxx
------ ------------------------------------
Xxxxxx X. Xxxxxx, Manager
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EXHIBIT A
(XXXXX XXXX LAND)
Situate in Section 00, Xxxxxxxx 0, Xxxxxx Xxxxx 0, Xxxxxxxx Xxxxxxxx, Xxxx of
Deer Park, Xxxxxxxx County, Ohio, and being more particularly described as
follows:
Beginning at a point in the centerline of East Xxxxxxxxx Road, said point being
in the north line of Section 19 and 1933.00 feet from the northeast corner of
said Section 19 as measured along the said north line of Section 19, South 0
degrees 55' West, 300.02 feet to an iron pin; thence North 88 degrees 54' West,
517.54 feet to an iron pin; thence North 0 degrees 25' 30" East, 300.02 feet to
a point in the said centerline of East Xxxxxxxxx Road and the north line of
Section 19; thence with the said centerline of East Xxxxxxxxx Road, South 88
degrees 54' East, 520.11 feet to the place of beginning.
EXHIBIT A
Page 1
36
EXHIBIT B
(BELLA VITA LAND)
Commence at the Northwest corner of Section 9, Township 39 South, Range 19 East,
thence North 89 degrees35'07" East along the Section line 1324.61 feet to the
Northwest corner of the West 1/2 of the East 3/4 of Section 9; thence South 00
degrees31'18" East, along the West line of the said West 1/2 of the East 3/4,
2385.46 feet; thence North 89 degrees34'18" East, 322.99 feet for a Point of
Beginning; thence continue North 89 degrees34'18" East, 175.00 feet; thence
North 00 degrees40'04" West, 25.00 feet; thence North 89 degrees34'18" East,
149.00 feet; thence South 00 degrees40'04" East, 682 feet to the North
right-of-way line of Venice Avenue East; thence South 89 degrees34'18" West
along said right-of-way line, 324.00 feet; thence North 00 degrees40'04" West,
657.00 feet to the Point of Beginning; all lying and being in Sarasota County,
Florida.
EXHIBIT B
Page 1
37
EXHIBIT C
(XXXXXX TERRACE LAND)
The following described property located in the County of Henrico, Commonwealth
of Virginia, to wit:
BEGINNING at an iron rod in the western right-of-way line of Poplar Forest
Drive, corner to Universal Wilton, Inc., and from said rod, with Universal
Wilton, Inc., N 88 degrees 38' 36" W, 739.61' to a point in the eastern
right-of-way line of Xxxxxx Road, thence with said Xxxxxx Road, N 03 degrees 50'
31" E, 309.57' to the P.C. of a curve concave to the right, said curve having a
radius of 1403.82', a tangent of 147.81' and a chord of 293.99', bearing N 09
degrees 51' 09" E, thence through a delta of 12 degrees 01' 15" and a length of
294.53' to the p.t., thence N 15 degrees 51' 46" E, 82.72' to a point corner to
Gievco Corp., thence with Gievco Corp., S 73 degrees 26' 52" E, 708.60' to an
iron rod, a point on curve in the western right of way line of Poplar Forest
Drive, thence with said Poplar Forest Drive, along said curve concave to the
left, said curve having a radius of 3046.43', a tangent of 179.33', and a chord
of 358.04', bearing S 04 degrees 48' 49" W, thence through a delta of 06 degrees
44' 16", and a length of 358.25' to the P.T., thence S 01 degrees 26' 41" W,
137.00' to the POINT OF BEGINNING.
EXHIBIT C
Page 1
38
EXHIBIT D
(WOODSIDE VILLAGE LAND)
Parcel No. 1
Situated in the City of Bedford, County of Cuyahoga and State of Ohio, and known
as being part of the Suburban Land & Homes Co.'s Metropolitan Park Subdivision
No. 2 of record in Plat Volume 98, Page 22 (all references to deeds or plats in
this description refer to the records of the Recorder's Office, Cuyahoga County,
Ohio) as consolidated by Ordinance No. 3514-87 and shown for record in Plat
Volume 240, page 84 and being all of all 19.998 acre tract conveyed to Cardinal
Retirement Village of Bedford, Limited Partnership of record in Volume 88-0372,
Page 66 of Cuyahoga County Records, and being more particularly described as
follows:
Beginning at 3/4" hollow iron pin found at 40 feet right of center line station
17 + 11.00 as shown on the center line survey of Rockside Road, dated May 1952
of record in Cuyahoga County Engineer's Office, being on the Easterly right of
way line of said Rockside Road; thence Northeasterly along the Easterly right of
way line of said Rockside Road being the arc of a curve to the right, having a
radius of 3779.72 feet, a central angle of 4 deg. 58' 04", the chord of which
bears North 54 deg. 07' 25" East 327.62 feet to a 5/8" rebar set; thence the
following 4 courses being along Northerly lines of said 19.988+ acre tract and
Southerly lines of that 6.243+ acre tract conveyed to City-Bedford Partners, a
California Limited Partnership, recorded in Volume 89-6501, Page 31 of Cuyahoga
County Records;
1. thence North 89 deg. 53' 32" East 275 feet to a 5/8" rebar set;
2. thence South 42 deg. 19' 40" East 275 feet to a 5/8" rebar set;
3. thence North 47 deg. 40' 20" East 20 feet to a 5/8" rebar set;
4. thence South 42 deg. 19' 13" East 423.26 feet to a 3/4" iron pin found;
thence South 54 deg. 35' 44" West 70.74 feet along the Northerly line of Lot No.
451 of said Plat Volume 98, Page 22 of Cuyahoga County Records, to a 5/8" rebar
set on the Easterly right of way line of Xxxxxx Avenue; thence South 60 deg. 50'
18" West 25 feet, along the Northerly end of said Xxxxxx Avenue as partially
vacated by said Ordinance No. 5814-87, to a 5/8" rebar set; thence South 29 deg.
09' 42" East 181.41 feet, along the former center line of said Xxxxxx Avenue
(former 50 foot wide right of way) to a 5/8" rebar set; thence South 89 deg. 51'
37" West 169.02 feet, along the former center line of Natalia Road (formerly 50
foot wide right of way) to a 3/4" hollow iron pin found; thence the following 8
courses being along Southerly lines of said 19.998 acre tract and Northerly
lines of lots 204 through 213 inclusive and 215 through 233 inclusive of The
Suburban Land & Homes Co.'s Metropolitan Park Subdivision, by recorded plat in
Volume 82 of Maps, Page 1 of Cuyahoga County Records;
1. thence South 00 deg. 07' 14" East 132.04 feet to a 3/4" hollow iron pin
found;
2. thence South 59 deg. 15' 41" West 80.37 feet to a 3/4" hollow iron pin
found;
3. thence South 75 deg. 59' 31" West 136.74 feet to a 3/4" hollow iron pin
found;
4. thence South 88 deg. 10' 18" West 141.72 feet to a 5/8" rebar inside of 1"
hollow iron pin found;
5. thence North 84 deg. 12' 19" West 248.23 feet to a 1-1/2" hollow iron pin
found;
6. thence North 58 deg. 13' 19" West 332.31 feet, passing a 1" hollow iron pin
found at 257.30 feet, to an old 3/4" hollow iron pin found;
7. thence North 84 deg. 00' 39" West 146.97 feet to an old 3/4" hollow iron
pin found;
8. thence South 78 deg. 38' 07" West 210.91 feet to a 5/8" rebar found;
thence South 82 deg. 22' 03" West 25 feet along the Northerly end of partially
vacated Lombard Road (formerly 50 foot wide right of way) as vacated by said
Ordinance No. 5814-87, to a 3/4" hollow iron pin found; thence Northerly along
the former center line of said Lombard Road (West side of right of way was not
vacated) being the arc of a curve to the right, having a radius of 1008.17, a
central angle of 8 deg. 03' 07", the chord of which bears North 3 deg. 36' 24"
West 141.57 feet to a point; thence North 0 deg. 25' 10" East 110.28 feet to a
5/8" rebar set on the Easterly right of way line of said Rockside Road (80 foot
wide right of way); thence North 51 deg. 39' 28" East 501.21 feet to the point
of beginning.
EXHIBIT D
Page 1
39
Parcel No. 2
TOGETHER WITH the beneficial rights in and to that certain non-exclusive
easement for ingress and egress, sanitary sewer, storm sewer, water line and
asphalt driveway contained in the Deed from Cardinal Industries Development
Corporation to Cardinal Retirement Village of Bedford, Limited Partnership,
dated January 27, 1988 and recorded in Volume 88-0372, Page 66 of Cuyahoga
County Records, and described as follows:
Situated in the City of Bedford, County of Cuyahoga and State of Ohio, and being
part of Original Bedford Township Lot 25, being all out of the 6.243 acres tract
of land described on Exhibit B of the deed to Cardinal Retirement Village
Bedford, Limited Partnership, recorded in Volume 88-0372, page 66 of Cuyahoga
County Records, being further described as follows:
Commencing at a point on the Easterly right of way line of Rockside Road, being
40 feet right of center line station 37 + 11.00 on the center line survey of
Rockside Road dated May 1962 of record in the Cuyahoga County Engineer's Office;
thence Northeasterly along said right of way line, being the arc of a curve to
the right, having a radius of 3779.72 feet, a central angle of 4 deg. 58' 04",
the chord of which bears North 54 deg. 07' 25" East 327.62 feet to the point of
beginning; thence continuing along said right of way line, being a Westerly line
of said 6.243 acre tract, and being the arc of curve to the right, having a
radius of 3779.72 feet, a central angle of 1 deg. 42' 02", the chord of which
bears North 57 deg. 33' 14" East 112.17 feet to a point; thence North 89 deg.
53' 32" East 198 feet, along a Northerly line of said 6.243 acre tract,
Southerly line of a 6.601 acre tract of land described in a deed to Valleyfield
Apartments of Bedford, Ltd., recorded in Volume 85-4202, Page 31 of Cuyahoga
County Records, to a point; thence South 00 deg. 06' 28" East 60 feet to a
point; thence South 89 deg. 53' 32" West 292.77 feet, along a line of said 6.263
acre tract, to the point of beginning.
Parcel No. 3
TOGETHER WITH the beneficial rights in and to that certain non-exclusive
easement for storm sewer contained in the Deed from Cardinal Industries
Development Corporation to Cardinal Retirement Village of Bedford, Limited
Partnership, dated January 27, 1988 and recorded in Volume 88-0372, Page 66 of
Cuyahoga County Records, and described as follows;
Situated in the City of Bedford, County of Cuyahoga and State of Ohio, and
particularly described as follows:
Commencing at a point on the Easterly right of way line of Rockside Road being
40 feet right of center line station 37 + 11.00 on the center line survey of
Rockside Road dated May 1962 of record in the Cuyahoga County Engineer's Office;
thence Northeasterly along said right of way line, being the arc of a curve to
the right, having a radius of 3779.72 feet, a central angle of 4 deg. 58' 04",
the chord of which bears North 54 deg. 07' 25" East 327.62 feet to a point;
thence along lines of said 6.423 acre tract the following 4 courses;
1. North 89 deg. 53' 32" East 275 feet;
2. South 42 deg. 19' 40" East 275 feet;
3. North 47 deg. 40' 20" East 20 feet;
4. South 42 deg. 19' 40" East 339.66 feet to the point of beginning;
thence North 47 deg. 40' 20" East 20 feet to a point; thence South 42 deg. 19'
40" East 30 feet to a point; thence South 47 deg. 40' 20" West 20 feet to a
point; thence North 42 deg. 19' 40" West 30 feet to the point of beginning.
Parcel No. 4
TOGETHER WITH the beneficial rights in and to that certain non-exclusive
easement for storm sewer, sanitary sewer, water line and asphalt driveway
contained in the Deed from Cardinal Industries Development Corporation to
Cardinal Retirement Village of Bedford, Limited Partnership, dated January 27,
1988 and recorded in Volume 88-0372, Page 66 of Cuyahoga County Records, and
described as follows:
EXHIBIT D
Page 2
40
Situated in the City of Bedford, County of Cuyahoga and State of Ohio, and being
a part of Original Bedford Township Lot 25, being all out of the 6.601 acre
tract of land described in a deed to Valleyfield Apartments of Bedford, Ltd.,
recorded in Volume 85-4202, Page 31 of Cuyahoga County Records, and being more
particularly described as follows:
Beginning at a point on the Easterly right of way line of Rockside Road being 40
feet right of the center line the most Westerly corner of said 6.601 acre tract;
thence Northeasterly along said right of way line being the arc of a curve to
the right, having a radius of 3779.72 feet, a central angle of 3 deg. 08' 18"
the chord of which bears North 59 deg. 52' 38" East 207 feet to a point; thence
South 10 deg. 22' 27" East 105.23 feet to a point on the Southerly line of said
6.601 acre tract; thence South 89 deg. 53' 32" West 198 feet along said line to
the point of beginning.
EXHIBIT D
Page 3
41
EXHIBIT E
(WYNDHAM LAKES PROPERTY)
PARCEL I:
A parcel of land lying in Sections 4 and 5, Township 4 South, Range 27 East,
Jacksonville, XXXXX County, Florida, being more particularly described as
follows to wit:
For a point of reference, commence at the point of intersection of the Southerly
right of way line of Xxxxxxx Road (a 60 foot wide right of way) with the
Westerly right of way line of Old St. Augustine Road (a 100 foot right of way)
and run South 19 degrees57'00" East, along the Westerly right of way, a distance
of 254.08 feet to a point for the Point of Beginning. From the Point of
Beginning thus described continue South 19 degrees57'00" East, along said
Westerly right of way line, a distance of 101.10 feet to the Northeasterly
corner of that certain tract described in Instrument recorded in O.R. Book 5455,
Page 531 of the Public Records of XXXXX County, Florida; run thence along the
boundary of said tract, the following courses: First Course, Southwesterly along
the arc of a curve concave Northwesterly with a radius of 30 feet, an arc
distance of 57.75 feet to the point of tangency of said curve, said arc being
subtended by a chord bearing and distance of South 35 degrees11'40" West, 49.24
feet; Second Course, North 89 degrees39'40" West, a distance of 475.72 feet;
Third Course, South 00 degrees20'20" West, a distance of 25.00 feet to a point;
Fourth Course, South 45 degrees20'20" West, a distance of 310.14 feet to a
point; Fifth Course, South 44 degrees39'40" East, a distance of 270.01 feet to a
point; Sixth Course, South 00 degrees23'40" East, a distance of 83.74 feet to a
point; run thence South 89 xxxxxxx00'20" West a distance of 846.81 feet to a
point; run thence North 01 degrees55'59" West, a distance of 12.28 feet to a
point; run thence North 00 degrees19'20" West, a distance of 652.80 feet to a
point; run thence South 89 degrees39'40" East, a distance of 1,350.87 feet to
the Point of Beginning.
PARCEL II:
A part of the Southeast 1/4 of the Northeast 1/4 of Section 5, township 4 South,
Range 27 East, Jacksonville, XXXXX County, Florida; being portions of those
lands described in Instrument recorded in O.R. Book 1444, Page 142 and in O.R.
Book 2813, Page 1004 of the Public Records of XXXXX County, Florida, being more
particularly described as follows:
For a point of reference, commence at the Southwest corner of said Southeast 1/4
of the Northeast 1/4 and run South 89 degrees39'40" East along the South line of
said Southeast 1/4 of the Northeast 1/4, a distance of 515.94 feet to the Point
of Beginning of the land hereinafter to be described; run thence North 00
degrees00'06" West a distance of 100.00 feet; run thence South 89 degrees39'40"
East a distance of 146.28 feet; run thence South 00 degrees00'40" East a
distance of 50.00 feet; run thence South 89 degrees39'40" East a distance of
321.39 feet; run thence South 00 degrees06'24" West a distance of 50.00 feet to
the South line of said Southeast 1/4 of the Northeast 1/4; run thence along said
South line North 89 degrees39'40" West a distance of 467.59 feet to the Point of
Beginning.
PARCEL III:
Together with easement rights as defined in GRANT OF EASEMENT dated February 7,
1986, recorded March 3, 1986 in O.R. Book 6093, Page 773, as affected by AMENDED
AND CORRECTED GRANT OF EASEMENT dated December 21, 1992, recorded January 27,
1993 in O.R. Book 7505, Page 1154 in the Public Records of XXXXX County,
Florida.
PARCEL IV:
Perpetual non-exclusive easements as defined in GRANT OF EASEMENT AGREEMENT
dated December 21, 1992, recorded January 27, 1993 in O.R. Book 7505, Page 1161
in the Public records of XXXXX County, Florida.
EXHIBIT E
Page 1
42
PARCEL V:
Together with rights as defined in GRANT OF EASEMENT AND MODIFICATION OF
EASEMENT dated April 27, 1993, recorded April 30, 1993 in O.R. Book 7567, Page
864 in the Public Records of XXXXX County, Florida.
EXHIBIT E
Page 2
43
EXHIBIT F
(DUE DILIGENCE MATERIALS)
EXHIBIT F
Page 1
44
EXHIBIT G
(CONTRACTS TO BE ASSUMED)
Xxxxx Xxxx
Dover Elevator
National Heating & Air Conditioning
ADT Security
Bella Xxxx
Xxxxxx Alarm Systems
Comcast Cablevision
Xxxxxx Terrace
Continental Cablevision
General Elevator
Automatic Laundry
Virginia Linen
Woodside Village
None
Wyndham Lakes
MediaOne Cable
EXHIBIT G
Page 1
45
EXHIBIT H
(LEASE/MANAGEMENT AGREEMENTS)
[NOTE: THE ATTACHED FORMS RELATE TO THE XXXXXX TERRACE PROPERTY AND THE WYNDHAM
LAKES PROPERTY. THE DOCUMENTS FOR THE BELLA VITA PROPERTY WILL BE IN THE FORM OF
THE WYNDHAM LAKES DOCUMENTS. TO THE EXTENT THAT SIMILAR TYPES OF DOCUMENTS WILL
NEED TO BE EXECUTED FOR THE XXXXX XXXX PROPERTY OR THE WOODSIDE VILLAGE
PROPERTY, THE PARTIES WILL EXECUTE DOCUMENTS IN THE SUBSTANTIALLY SAME FORM AS
THOSE COMPRISING THIS EXHIBIT H, DEPENDING ON WHETHER THE STATE OF OHIO WILL
REQUIRE A LEASE AND MANAGEMENT AGREEMENT OR A MANAGEMENT AGREEMENT ONLY.]
EXHIBIT H
Page 1
46
EXHIBIT I
(OTHER ASSETS)
Name Location
---- --------
Amberwood Port Richie, Florida
Baypoint Village Hudson, Florida
Xxxxxxx Park Beaumont, Texas
Eastlake Terrace Elkhart, Indiana
Kinghaven Manor Riverview, Michigan
Lodge of Xxxxxxxxxx Cincinnati, Ohio
Mallard Cove Sharonville, Ohio
Northgate Park Cincinnati, Ohio
Shorehaven Manor Sterling Heights, Michigan
Tanglewood Trace Mishawaka, Indiana
Woodside Village of Columbus Columbus, Ohio
Canterbury Xxxxx Attleboro, Massachusetts
Lakes Fort Xxxxx, Florida
Vista Del Rio Albuquerque, New Mexico
EXHIBIT I
Page 1
