EXHIBIT 10.21
Real Estate Purchase and Sale Contract
between CNL Retirement Corp., as Buyer,
and American Retirement Corporation, as Seller,
relating to the Homewood Residence of
Coconut Creek - Coconut Creek, Florida
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL RETIREMENT CORP.,
a Florida corporation, or assigns,
as BUYER
and
AMERICAN RETIREMENT CORPORATION,
a Tennessee corporation,
as SELLER
Premises: Homewood Place at Coconut Creek,
an Assisted Living Facility in Coconut Creek, Florida
(Tenant: ARC Coconut Creek, LLC)
TABLE OF CONTENTS
Page
1. Definitions..............................................................................................1
2. Purchase and Sale of Premises............................................................................3
3. Purchase Price for Premises..............................................................................4
4. Closing Date.............................................................................................4
5. Conditions to Buyer's Obligation to Close................................................................4
6. Deliveries at Closing....................................................................................7
7. Closing and Other Costs, Adjustments and Prorations......................................................9
8. Inspections.............................................................................................10
9. Title to Premises; State of Title to be Conveyed........................................................10
10. Escrow Agent............................................................................................10
11. Covenants, Representations and Warranties...............................................................10
12. Covenants of Seller Pending Closing.....................................................................10
13. Eminent Domain..........................................................................................10
14. Casualty................................................................................................10
15. Remedies Upon Default...................................................................................10
16. Notices.................................................................................................10
17. Brokerage Commissions...................................................................................10
18. Miscellaneous Provisions................................................................................10
Attachments:
Exhibit A - Description of Premises
Exhibit B - Permitted Exceptions
Exhibit C - Intentionally Omitted
Exhibit D - Intentionally Omitted
Exhibit E - Intentionally Omitted
Exhibit F - Intentionally Omitted
Exhibit G - Intentionally Omitted
Exhibit H - Form of Architect's Certificate
Exhibit I - Form of Engineer's Certificate
REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between AMERICAN
RETIREMENT CORPORATION, a Tennessee corporation, having a mailing address at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ( "Seller"), and CNL
RETIREMENT CORP., a Florida corporation, or its assigns, having a mailing
address at CNL Center at City Commons, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Buyer");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Coconut Creek, Broward County,
Florida; and
WHEREAS, Buyer is willing to buy such real property upon the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
(b) "Contracts" shall mean, with respect to the Premises, any
equipment leases relating to the Premises and disclosed to Buyer on or
before Closing which are to survive the Closing and to which Seller is
a party.
(c) "▇▇▇▇▇▇▇ Money Deposit" shall mean the deposit of
$50,000.00 to be given by Buyer to Escrow Agent pursuant to Section
3(a) of this Agreement.
(d) "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer and Seller has executed this
Agreement.
(e) "Escrow Agent" shall mean Lawyers Title Insurance
Corporation, whose address is set forth in Section 16 below.
(f) "Guarantor" shall mean American Retirement Corporation, a
Tennessee corporation.
(g) "Guaranty" shall mean the unconditional guaranty of the
Lease to be executed by the Guarantor and delivered to Buyer at
Closing.
(h) "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances,
including, without limitation, Petroleum (as hereinafter defined),
asbestos insulation and/or urea formaldehyde insulation, which are
regulated, governed, restricted or prohibited by any federal, state or
local law, decision, statute, rule, regulation or ordinance currently
in existence or hereafter enacted or rendered (hereinafter collectively
referred to as the "Hazardous Materials Laws") including, but not
limited to, those materials or substances defined as "hazardous
substances," "hazardous materials," "toxic substances" or "pollutants"
in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean
Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq., and any applicable statutes, ordinances or
regulations under the laws of the State in which the Premises are
located, and any rules and regulations promulgated thereunder, all as
presently or hereafter amended. "Petroleum" for purposes of this
Agreement shall include, without limitation, oil or petroleum of any
kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil,
gasoline, diesel fuel and kerosene.
(i) "Improvements" shall mean the building consisting of a 100
bed facility with 80 assisted living units and 14 dementia care units
with 20 beds and other related improvements to be conveyed to Buyer in
connection with Buyer's acquisition of the Premises pursuant to the
terms of this Agreement and leased by Tenant pursuant to the terms of
this Agreement, and all appurtenances thereto, including but not
limited to all pavement, accessways, curb cuts, parking, drainage
systems and facilities, landscaping, and utility facilities and
connections for sanitary sewer, potable water, irrigation, electricity,
telephone and natural gas, if applicable or required by the Lease, to
the extent the same form a part of the Premises.
(j) INTENTIONALLY OMITTED.
(k) "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, and Tenant, as
lessee, pursuant to which Tenant shall lease the Premises and
Improvements from Buyer.
(l) INTENTIONALLY OMITTED.
(m) INTENTIONALLY OMITTED.
(n) INTENTIONALLY OMITTED.
(o) INTENTIONALLY OMITTED.
(p) "P&E" shall mean the "Initial Landlord P&E" as that term
is defined in the Lease.
(q) "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction,
ownership and operation of the Premises, including without limitation
certificates of occupancy, building permits, signage permits, site use
approvals, zoning certificates, environmental and land use permits and
any and all necessary approvals from state or local authorities other
than such permits, operating permits, certificates, licenses and
approvals which are to be held by, or transferred to, the Tenant in
order to permit the Tenant to operate the Premises properly in
accordance with the terms of the Lease.
(r) "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto.
(s) "Plans" shall mean the final "as-built" plans and
specifications for the Improvements, which are to be furnished by
Seller to Buyer pursuant to Section 5(a)(5) of this Agreement.
(t) "Premises" shall mean that certain parcel of real property
being more particularly described on Exhibit A attached hereto,
together with all of the Improvements, tenements, hereditaments and
appurtenances belonging or in any way appertaining to such real
property, and all of Seller's rights, title and interest in and to (i)
any and all property lying in the bed of any street, road or avenue,
open or proposed, in front of or adjoining such real property to the
center line thereof, (ii) any strips and gores of land adjacent to,
abutting or used in connection with such real property, and (iii) any
easements and rights, if any, inuring to the benefit of such real
property or to Seller in connection therewith.
(u) "Purchase Price" shall mean NINE MILLION SIX HUNDRED
EIGHTY-SEVEN THOUSAND FIVE HUNDRED SIXTY-TWO AND 50/100 DOLLARS
($9,687,562.50).
(v) "Seller's Reimbursement" shall mean the fixed sum of
$62,562.50 to be credited by Seller to Buyer at Closing in
reimbursement of Buyer's third-party inspection, review costs and other
acquisition costs.
(w) "Tenant" shall mean ARC Coconut Creek, LLC, a Tennessee
limited liability company.
(x) "Title Company" shall mean Lawyers Title Insurance
Corporation, which shall issue the owner's policy of title insurance
required hereunder by and through its agent.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises.
3. Purchase Price for Premises. The Purchase Price for the Premises
shall be payable in the following manner:
(a) ▇▇▇▇▇▇▇ Money Deposit. Not later than five (5) days
following the date on which Buyer shall receive a counterpart of this
Agreement fully executed by Buyer and Seller, and in any event no later
than the Closing Date (as hereinafter defined), Buyer shall deposit
with Escrow Agent in immediately available funds the ▇▇▇▇▇▇▇ Money
Deposit hereunder, to be held and disbursed in accordance with the
terms of this Agreement.
(b) ▇▇▇▇▇▇▇ Money Deposit. The ▇▇▇▇▇▇▇ Money Deposit shall be
credited to the cash due from Buyer at Closing.
(c) Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section 7 hereof, shall be
paid in full by Buyer at the Closing by wire transfer of immediately
available federal funds, as Seller shall direct.
4. Closing Date. The Closing shall take place on February 11, 2002 (the
"Closing Date") or such other date as is mutually agreeable to Buyer and Seller
at the offices of Escrow Agent in Atlanta, Georgia at such time as is mutually
acceptable to Buyer and Seller.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) On or before the Effective Date of this Agreement: Seller
shall deliver to Buyer (at no cost to Buyer):
(1) Copies of any and all tests, surveys,
examinations, plans, appraisals, permits, licenses,
environmental studies or reports and other studies or
investigations regarding the Premises which the Seller may
have in its possession or control;
(2) If Tenant is a different entity than Seller, a
current operating statement, profit and loss statement,
balance sheet and other satisfactory financial information for
Tenant, certified as true, correct and complete by Tenant,
reflecting Tenant's ability to pay rent and perform its other
Lease obligations, and a current profit and loss statement,
balance sheet and other satisfactory financial information for
Guarantor reflecting Guarantor's ability to perform its
Guaranty obligations;
(3) A current letter or certificate from an
appropriate municipal, county or other governmental
representative confirming the zoning classification for the
Premises, that the use and operation of the Premises for
Tenant's proposed use is in compliance with the applicable
zoning ordinance, and a final recorded plat approved by the
applicable governmental authority or other acceptable evidence
confirming that the Premises are a legally subdivided parcel;
(4) Final "as-built" Plans for the Improvements;
(5) All Permits, including without limitation, a
certificate of occupancy and an operating permit or license
for the use and occupancy of the Premises by Tenant.
(6) All warranties and guaranties pertaining to the
Improvements, specifically including the manufacturer's roof
membrane warranty issued with respect to the building
comprising the Improvements.
(b) Buyer shall have received a commitment from the Title
Company for an owner's title insurance policy (ALTA form) with respect
to the Premises, naming Buyer as the Proposed Insured in the amount of
the Purchase Price (the "Title Commitment"), together with the
following:
(1) All exceptions and appurtenances to title
referred to in the Title Commitment;
(2) All proposed exceptions and appurtenances to
title which are intended to be of record as of the Closing
Date;
(3) All covenants and restrictions, if any, which
Seller desires that the Lease establish of record for the
benefit of Tenant, whether affecting the Premises, the
remainder of the project or center in which the Premises are
located or any other property;
(4) Evidence that any such covenants and restrictions
for the benefit of Tenant which encumber property other than
the Premises are not subject to extinguishment (e.g., by the
foreclosure of any superior lien on the property encumbered
thereby) and, if permitted by applicable law, the Title
Commitment shall insure the same;
(5) A copy of the most recent tax ▇▇▇▇ (and paid
receipt therefor) with respect to ad valorem real property
taxes and assessments levied or assessed with respect to the
Premises; and
(6) Additional matters to be delivered, agreed upon
or accomplished on or before the Effective Date of this
Agreement.
(c) Buyer shall have approved the zoning of the Premises and
its compliance with applicable zoning and subdivision laws, including
without limitation the documents which Seller is required to furnish
Buyer pursuant to Section 5(a) above.
(d) Buyer and Tenant shall have mutually agreed upon all of
the terms and conditions of the Lease to be entered into at Closing.
(1) INTENTIONALLY OMITTED.
(2) INTENTIONALLY OMITTED.
(e) Buyer and Seller shall have mutually agreed on the forms
of the Guaranty, the Earn Out Agreement and First Offer Agreement as
such terms are defined herein.
(1) INTENTIONALLY OMITTED
(f) Buyer and Seller shall have mutually agreed upon the
schedule of P&E to be conveyed to Buyer at Closing.
(g) Buyer shall have approved any financial information on the
Tenant and Guarantor which Seller is required to furnish to Buyer
pursuant to Section 5(a) above.
(h) Buyer and Tenant shall have approved the Plans which
Seller is required to furnish to Buyer pursuant to Section 5(a) above.
(i) Buyer shall have received a certificate from an inspecting
architect acceptable to Buyer substantially in the form attached hereto
as Exhibit H (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer
substantially in the form attached hereto as Exhibit I (or otherwise
reasonably acceptable to Buyer). Seller shall pay all costs in
connection with obtaining the aforesaid certificates.
(j) Buyer shall have approved the Permits, warranties and
guaranties copies of which Seller is required to furnish to Buyer
pursuant to Section 5(a) above, the originals of which shall be
delivered to Buyer at the Closing.
(k) Buyer shall have received evidence that legally sufficient
parking is available on the Premises without the benefit of any parking
easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at
the Improvements.
(l) Buyer shall have obtained and approved an appraisal of the
Premises.
(m) Buyer shall have obtained and approved an environmental
assessment of the Premises.
(n) Buyer shall have obtained and approved an "as-built"
survey of the Premises.
(o) Buyer shall have otherwise determined, in its sole and
absolute discretion, that the Premises are satisfactory to Buyer.
In the event that this Agreement is executed and effective as of the
Closing Date as intended, Buyer shall be deemed to have approved all of the
matters to be received, reviewed and approved by Buyer pursuant to Sections 5(a)
through 5(o) above.
(p) On or before the Closing Date:
(1) Seller shall be the owner of the fee simple
interest in the Premises, free from all liens, encumbrances,
restrictions, rights-of-way and other matters, excepting only
the Permitted Exceptions and any other matter consented to in
writing by Buyer pursuant to Section 12(a) hereof.
(2) The representations and warranties of Seller set
forth in Section 11 hereof shall be true, correct and complete
in all material respects on and as of the Closing Date.
(3) Neither Seller, Tenant nor Guarantor shall, at
any time during the term of this Agreement, file or have filed
against it a petition seeking relief under the bankruptcy or
other similar laws of the United States or any state thereof.
(4) Tenant shall have duly executed and delivered the
Lease to Buyer and Guarantor shall have duly executed and
delivered the Guaranty to Buyer.
(5) The environmental assessment approved by Buyer as
of the Effective Date shall continue to accurately reflect the
environmental condition of the Premises.
(6) Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting
all requirements thereunder so as to obligate the Title
Company unconditionally to issue to Buyer an original owner's
policy of title insurance in the amount of the Purchase Price
subject only to the Permitted Exceptions.
(7) Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the
authority of any agent of Title Company which conducts the
Closing and issues the Buyer's owner's policy of title
insurance for or on behalf of Title Company.
If the foregoing contingencies are not satisfied within the respective
time periods set forth above, then in addition to any rights afforded by Section
15 of this Agreement Buyer shall be entitled to terminate this Agreement by
delivering written notice thereof to Seller and Escrow Agent in accordance with
and subject to the provisions of Section 10(b) below, whereupon the ▇▇▇▇▇▇▇
Money Deposit shall be returned to Buyer and this Agreement shall terminate and
become null and void and all parties hereto shall be relieved of all obligations
hereunder.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Owner's Affidavit" or other
acceptable evidence attesting to the absence of liens, lien
rights, rights of parties in possession (other than Tenant)
and other encumbrances other than the Permitted Exceptions
naming both Buyer and Title Company as benefited parties, so
as to enable Title Company to delete the "standard" exceptions
for such matters from Buyer's owner's policy of title
insurance and otherwise insure any "gap" period occurring
between the Closing and the recordation of the closing
documents;
(2) A duly executed Warranty Deed with respect to the
Premises subject to no exceptions other than the Permitted
Exceptions, in the form approved by Buyer and the Title
Company and revised as needed to conform to the requirements
of state law for the state in which the Premises are located;
(3) An Assignment of Licenses, Permits, Plans,
Contracts and Warranties with respect to the Premises in the
form approved by Buyer, together with all of the documents
assigned thereby, assigning and/or reserving unto the Tenant,
however, (i) the right to enforce the same during the term of
the Lease; and (ii) specific operating licenses which Buyer
has approved in its reasonable discretion as necessary for
Tenant to retain for proper licensing and operation of the
Facility, as such term is defined in the Lease;
(4) Three (3) signed counterparts of the closing
statement;
(5) An opinion from Seller's and Tenant's counsel on
matters and in the form approved by Buyer and relating to due
organization and good standing of Seller and Tenant, the due
authorization, execution and delivery of the closing documents
delivered by Seller, Tenant and such other related parties
involved in the transaction as Buyer may reasonably require,
and the enforceability of the Lease against Tenant and the
Guaranty against Guarantor;
(6) An appropriate FIRPTA Affidavit or Certificate
evidencing that Seller is not a foreign person or entity under
Section 1445(f)(3) of the Internal Revenue Code, as amended;
(7) All certificates of insurance, insuring Buyer as
the owner of the Premises, which are required by the Lease to
be furnished by the Tenant to the landlord;
(8) The Guaranty;
(9) Two (2) duly executed counterparts of an earn out
agreement to be entered into between Seller and Buyer in the
form approved by Seller and Buyer and relating to potential
earn out amounts which may be earned in the future by Seller
(the "Earn Out Agreement");
(10) INTENTIONALLY OMITTED;
(11) Two duly executed counterparts of a right of
first offer agreement to be entered into between Tenant and
Buyer in the form approved by Tenant and Buyer and relating to
the rights granted by Buyer to Seller in respect of certain
potential offers to purchase the Property (the "First Offer
Agreement");
(12) INTENTIONALLY OMITTED;
(13) INTENTIONALLY OMITTED;
(14) One (1) counterpart of the Lease duly executed
by Tenant;
(15) A ▇▇▇▇ of sale conveying to Buyer title to the
P&E;
(16) Certified copies of applicable resolutions and
certificates of incumbency with respect to the Seller, Tenant
and such other related parties involved in the transaction as
Buyer may reasonably require;
(17) A certificate of a duly authorized officer of
Seller confirming the continued truth and accuracy of the
representations and warranties of the Seller made in this
Agreement; and
(18) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement, including those (if any)
required to be delivered by Seller pursuant to Section 5(d)
above.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions,
prorations, and credits provided for herein;
(2) Three (3) duly executed counterparts of the
closing statement;
(3) Two (2) duly executed counterparts of the Earn
Out Agreement;
(4) INTENTIONALLY OMITTED;
(5) Two (2) duly executed counterparts of the First
Offer Agreement; and
(6) One (1) counterpart of the Lease duly executed by
Buyer;.
7. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all
of which shall be credited against, and shall reduce dollar-for-dollar,
the Purchase Price payable to Seller at the Closing: the usual and
customary costs and expenses set forth in a settlement statement with
respect to a conveyance of this nature (excluding only those expenses
specifically described below as the responsibility of Buyer) including
without limitation (i) all real estate conveyance taxes and other
transfer taxes, if any, imposed by state or local authorities
(including those transfer taxes customarily paid by a grantee) and all
recording charges; (ii) costs of removing any lien, assessment or
encumbrance required to be discharged hereunder in order to convey
title to the Premises as herein provided, including, without
limitation, any prepayment penalties or fees incurred in connection
therewith; (iii) the cost of the owner's policy of title insurance
(ALTA Form, including any additional premiums to delete the "standard"
exceptions for parties in possession, matters of survey and
construction lien claims, and to issue such Endorsements as Buyer may
request provided the same are permitted by law and are customary in
similar commercial transactions); (iv) the cost of the architect's and
engineer's certificates required hereunder; (v) legal fees and expenses
of Seller; (vi) the fee, if any, required by the manufacturer for the
transfer by Seller to Buyer of the manufacturer's roof membrane
warranty for the building; and (vii) Seller's Reimbursement to be
credited to Buyer at Closing as reimbursement for Buyer's third-party
inspection, review and other acquisition costs.
(b) The Buyer shall be charged with the following items in
addition to the Purchase Price payable to Seller at Closing: (i) fees
and expenses of Buyer's counsel; (ii) recording costs for the deed; and
(iii) Buyer's third-party inspection, review and other acquisition
costs to the extent the same exceed the Seller's Reimbursement and are
not otherwise specifically to be paid by Seller pursuant to the terms
of this Agreement.
(c) As the Lease is to be entered into between Buyer and
Tenant effective as of the Closing Date, it shall not be necessary for
rent or any other charges payable under the Lease to be prorated at
Closing, and all rent and other charges payable under the Lease shall
be the property of Buyer.
(d) Taxes, assessments and other charges shall not be prorated
as of Closing, as Seller shall be responsible for such matters relating
to the period prior to Closing, and Tenant shall be responsible for
such matters from and after Closing. Certified, confirmed and ratified
special assessments liens as of the Closing Date are to be paid by
Seller. Seller shall also pay and be responsible for any "rollback"
taxes or retroactively assessed taxes which arise out of or relate to
any prior use of the Premises or any improper or inadequate assessment
of the Premises for the period prior to the Closing, which obligation
shall expressly survive the Closing.
8. Inspections. Subject to the rights of any tenant or other party
lawfully in occupancy, Buyer through its agents, employees and independent
contractors shall have the right from time to time prior to the Closing Date,
upon prior notice to Seller, to enter the Premises for the purpose of inspecting
the same and performing environmental and other tests thereon. Buyer shall
indemnify and hold harmless Seller and its contractors, agents, employees and
affiliates from and against any claims, losses, damages and costs arising out of
any inspection of and testing at the Premises by Buyer, its agents and
representatives. Buyer shall not, and shall not permit its agents or
representatives to, disrupt Seller's or Tenant's activities at the Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing,
Buyer shall receive fee simple title to the Premises free from all liens,
encumbrances, restrictions, rights-of-way and other matters, excepting only the
Permitted Exceptions and any other matter consented to in writing by Buyer
pursuant to Section 12(a) hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The ▇▇▇▇▇▇▇ Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the ▇▇▇▇▇▇▇ Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of
Section 3(c) above, and shall not be commingled with any funds of the
Escrow Agent or others. Escrow Agent shall promptly advise Seller and
Buyer that the ▇▇▇▇▇▇▇ Money Deposit is made and the account number
under which it has been deposited following clearance of funds.
(b) The Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money Deposit
to Seller or to Buyer, as the case may be, under the following
conditions:
(1) INTENTIONALLY OMITTED.
(2) To Seller on the Closing Date, provided Closing
shall occur pursuant to the Agreement.
(3) To Seller upon receipt of written demand therefor
("Seller's Demand for Deposit") stating that Buyer has
defaulted in the performance of Buyer's obligation to close
under this Agreement and the facts and circumstances
underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10)
days after the Escrow Agent shall have sent a copy of such
demand to Buyer in accordance with the provisions of Section
10(c) of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter
defined) from Buyer within such ten (10) day period.
(4) To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has
been terminated in accordance with the provisions hereof for
any reason other than as provided in Section 10(b)(1) above,
or that Seller has defaulted in the performance of any of
Seller's obligations under this Agreement and the facts and
circumstances underlying the same; provided, however, that the
Escrow Agent shall not honor such demand until more than ten
(10) days after the Escrow Agent shall have sent a copy of
such demand to Seller in accordance with the provisions of
Section 10(c) of this Agreement nor thereafter, if the Escrow
Agent shall have received a Notice of Objection from Seller
within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit
the Escrow Agent shall send a copy thereof to the other party in the
manner provided in Section 16 of this Agreement. The other party shall
have the right to object to the delivery of the Deposit by sending
written notice (the "Notice of Objection") of such objection to the
Escrow Agent in the manner provided in Section 16 of this Agreement,
which Notice of Objection shall be deemed null and void and ineffective
if such Notice of Objection is not received by the Escrow Agent within
the time periods prescribed in Section 10(b) of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the
Deposit. Upon receipt of a Notice of Objection, the Escrow Agent shall
promptly send a copy thereof to the party who sent the written demand.
(d) In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section 10(b)
of this Agreement, the Escrow Agent shall continue to hold the ▇▇▇▇▇▇▇
Money Deposit until (i) the Escrow Agent receives written notice from
Seller and Buyer directing the disbursement of the ▇▇▇▇▇▇▇ Money
Deposit, in which case the Escrow Agent shall then disburse the ▇▇▇▇▇▇▇
Money Deposit in accordance with such joint direction, or (ii)
litigation shall occur between Seller and Buyer, in which event the
Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money Deposit to the clerk of
the court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the
Escrow Agent's option, elect in order to terminate the Escrow Agent's
duties including, but not limited to, depositing the ▇▇▇▇▇▇▇ Money
Deposit in the appropriate court for the County in which the Premises
is located, and bringing an action for interpleader, the costs thereof
to be deducted from the amount so deposited into the registry of the
court; provided, however, that upon disbursement of the deposited
amount pursuant to court order or otherwise, the prevailing party shall
be entitled to collect from the losing party the amount of such costs
and expenses so deducted by the Escrow Agent.
(e) The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability
whatever except for willful misconduct or gross negligence as long as
the Escrow Agent has acted in good faith. The Seller and Buyer each
release the Escrow Agent from any act done or omitted to be done by the
Escrow Agent in good faith in the performance of its duties hereunder.
(f) Upon making delivery of the ▇▇▇▇▇▇▇ Money Deposit in the
manner herein provided, the Escrow Agent shall have no further
liability hereunder.
(g) The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent
pursuant to this Agreement which in either case will confirm that the
Escrow Agent is holding and will hold the ▇▇▇▇▇▇▇ Money Deposit in
escrow, pursuant to the provisions of this Agreement.
11. Covenants, Representations and Warranties(a) . In order to induce
Buyer to enter into this Agreement and purchase the Premises, Seller makes the
following covenants, agreements, representations and warranties, all of which
shall survive the Closing and the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations
and consents to enable it to execute and deliver this
Agreement and to consummate the transaction contemplated
hereby, including without limitation all authorizations and
consents required to be obtained from governmental authorities
during the course of, and upon completion of, construction of
the Improvements.
(2) Seller holds fee simple title to the Premises,
free of all liens, assessments and encumbrances except for the
Permitted Exceptions, and liens and encumbrances which will be
paid and discharged or otherwise released at or prior to the
Closing. Seller has no knowledge of any condition or state of
facts which would preclude, limit or restrict the business
operations contemplated, pursuant to the terms of the Lease,
to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect
to the Improvements, there are no service or maintenance
contracts affecting the Premises to which Buyer will be bound
upon Closing.
(4) The Premises and the proposed use thereof by
Tenant and the condition thereof do not violate in any
material respect any applicable deed restrictions, zoning or
subdivision regulations, urban redevelopment plans, local,
state or federal environmental law or regulation or any
building code or fire code applicable to the Premises
("Applicable Laws and Restrictions"), and are not designated
by any governmental agency to be in a flood plain area. Seller
has, on or before the Effective Date, provided written notice
to Buyer of any continuing, alleged or potential violations of
Applicable Laws and Restrictions known to Seller.
(5) As of the Closing Date (i) there shall exist no
event which, with the giving of notice or the passage of time
or both, would constitute an Event of Default under the Lease;
(ii) Tenant shall not have any defense, set-off or
counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or
those of Seller's employees, agents or contractors; and (iii)
all leasing commissions and fees with respect to the Lease, if
any, have been paid in full by Seller or Tenant.
(6) There is no pending or, to Seller's knowledge,
threatened litigation or other proceeding affecting the title
to or the use or operation of the Premises.
(7) Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended, and Seller shall certify its taxpayer
identification number at Closing.
(8) To Seller's knowledge, there are no federal,
state, county or municipal plans to restrict or change access
from any highway or road to the Premises.
(9) The Premises are a separate parcel for real
estate tax assessment purposes.
(10) All of the financial data regarding the
construction, ownership and operation of the Premises that
Seller has provided to Buyer is true, complete and correct.
(11) To the best of Seller's knowledge the
Improvements have been constructed in accordance with (i) the
Plans and (ii) applicable building codes, laws and regulations
in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the
best of Seller's knowledge, have been, stored, treated,
disposed of or incorporated into, on or around the Premises in
violation of any applicable statutes, ordinances or
regulations; the Premises are in material compliance with all
applicable environmental, health and safety requirements; any
business currently or, to the best of Seller's knowledge,
heretofore operated on the Premises has disposed of its waste
in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to
the best of Seller's knowledge, threatened action or
proceeding arising out of the condition of the Premises or any
alleged violation of environmental, health or safety statutes,
ordinances or regulations.
(13) Seller specifically acknowledges and understands
that where Seller knows of any fact(s) materially affecting
the value or desirability of the Premises, whether said
fact(s) is/are readily observable or not, Seller hereby
assumes and accepts a duty to disclose said fact(s) to Buyer.
Seller warrants that, other than as may be disclosed in the
foregoing representations and warranties, Seller has no
knowledge of any other fact(s) materially affecting the value
or desirability of the Premises whether or not said fact(s)
is/are readily observable.
(14) Seller and Tenant have complied with all notice
and licensing requirements and other conditions precedent to
the transfer of the Facility and issuance of a new assisted
living facilities license to Tenant, pursuant to the
requirements of Chapter 400 of the Florida Statutes and the
rules promulgated pursuant thereto .
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date.
(b) In order to induce Seller to enter into this Agreement and
to induce Seller to sell the Premises, Buyer makes the following
covenants, agreements, representations and warranties, all of which
shall survive the Closing and the purchase and sale of the Premises:
(1) Buyer is a corporation duly organized and validly
existing and in good standing under the laws of the State of
Florida. Buyer has all requisite power and authority under the
laws of the State of Florida and its charter documents to
enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(2) Buyer has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and
upon the execution and delivery hereof, this Agreement shall
constitute the valid and binding agreement of Buyer.
12. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
(a) Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Premises or upon the Buyer
subsequent to Closing, nor grant or permit the granting of any
easements or licenses affecting the Premises, nor take or permit any
legal action in connection with the Premises which will affect Buyer's
title to the Premises, nor enter into or consent to any leases of space
in the Premises other than residential leases entered into in the
ordinary course of Seller's business, without the express prior written
consent of Buyer. Buyer's consent may be withheld at Buyer's sole
option; however, Buyer's response to any of the foregoing shall not be
unreasonably delayed and, if denied, shall be accompanied by a
reasonably detailed explanation of the reason for such denial.
(b) Seller shall within two (2) business days following
receipt thereof (or the day of receipt if received the day prior to the
Closing Date) provide Buyer with copies of any letters or notices
received by Seller relating to or in any manner affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably
cooperate with Buyer in connection with Buyer's obtaining any insurance
which may be required to be maintained by Buyer with respect to the
Premises following the Closing, including the possible assumption by
Buyer of Seller's existing insurance coverage (evidence of which Seller
shall furnish Buyer on request).
13. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation would otherwise give Tenant the option to reduce or ▇▇▇▇▇ rent or
terminate the Lease, then, at Buyer's option, buyer may terminate this
Agreement, whereupon the full amount of the ▇▇▇▇▇▇▇ Money Deposit shall be paid
by Escrow Agent to Buyer, and all parties shall thereupon be relieved of all
further liability hereunder. If such condemnation would not otherwise give
Tenant the option to reduce or ▇▇▇▇▇ rent or terminate the Lease, or if it gives
Tenant such option and Tenant waives such option in writing, then Seller will
promptly commence the reconstruction and the parties shall proceed with the
Closing in accordance with, and subject to, the terms hereof.
14. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty would otherwise give Tenant the option to reduce or
▇▇▇▇▇ rent or terminate the Lease, then Buyer, at its option, may terminate this
Agreement, whereupon the full amount of the ▇▇▇▇▇▇▇ Money Deposit shall be paid
by Escrow Agent to Buyer, and all parties shall thereupon be relieved of all
further liability hereunder. If such casualty would not otherwise give Tenant
the option to reduce or ▇▇▇▇▇ rent or terminate the Lease, or if it gives Tenant
such option and Tenant waives such option in writing, then the parties shall
proceed with the Closing in accordance with, and subject to the terms hereof. In
such event, all such proceeds of any insurance plus the amount of any deductible
(which shall be paid by Seller) will be applied toward reconstruction.
15. Remedies Upon Default.
(a) In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and
exclusive remedy of Seller shall be to receive from Escrow Agent the
full amount of the ▇▇▇▇▇▇▇ Money Deposit, and Buyer shall have no right
therein. Buyer and Seller acknowledge and agree that (i) the ▇▇▇▇▇▇▇
Money Deposit and any interest earned thereon if received in accordance
with the terms of this Agreement is a reasonable estimate of and bears
a reasonable relationship to the damages that would be suffered and
costs incurred by Seller as a result of having withdrawn the Premises
from sale and the failure of Closing to occur due to a default of Buyer
under this Agreement; (ii) the actual damages suffered and costs
incurred by Seller as a result of such withdrawal and failure to close
due to a default of Buyer under this Agreement would be extremely
difficult and impractical to determine; (iii) Buyer seeks to limit its
liability under this Agreement to the amount of the ▇▇▇▇▇▇▇ Money
Deposit and any interest earned thereon if the transaction contemplated
by this Agreement does not close due to a default of Buyer under this
Agreement; and (iv) such amount shall be and constitute valid
liquidated damages.
(b) In the event Seller defaults under any of the terms of
this Agreement on or prior to the Closing Date (including, without
limitation, by failing or refusing to deliver any items required to be
delivered pursuant to Section 5 or Section 6 of this Agreement), Buyer
shall be entitled to (i) receive a refund of the ▇▇▇▇▇▇▇ Money Deposit
and terminate this Agreement, or (ii) compel specific performance of
this Agreement, in which event Buyer may also recover its damages
incurred as a result of such default, including but not limited to all
of its costs and attorneys' fees in seeking such specific performance,
or (iii) if specific performance is not possible or if Buyer elects not
to pursue specific performance, recover damages incurred as a result of
such default, which shall include damages resulting from a breach of
any warranty or representation of Seller as of the Closing even if the
same is not discovered until after the Closing, to the extent the same
survive the Closing.
16. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
If to Seller: American Retirement Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇}
If to Buyer: CNL Retirement Corp.
CNL Center at City Commons
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Lowndes, Drosdick, Doster, ▇▇▇▇▇▇
& ▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Post Office Box 2809
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Lawyer's Title Insurance Corporation
Riverwood 100 Building
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
17. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. In the event of a breach of the foregoing
warranties, the breaching party agrees to save, defend, indemnify and hold
harmless the non-breaching party from and against any claims, losses, damages,
liabilities and expenses, including but not limited to attorneys' fees. The
obligations of this Section shall survive the Closing or earlier termination of
this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller
to any entity which is owned or controlled by Buyer or any affiliate of
Buyer provided, however, that any assignee of Buyer shall assume all of
the obligations of Buyer hereunder. In the event of any permitted
assignment hereunder Buyer shall thereupon be relieved of all further
liability under this Agreement; except that the ▇▇▇▇▇▇▇ Money Deposit
shall not be released or otherwise adversely affected as a result of
any such assignment. Seller shall not have the right to assign its
rights and obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of
Seller and Buyer and their respective successors and assigns.
(b) Captions. The several headings and captions of the
Sections and subsections used herein are for convenience of reference
only and shall in no way be deemed to limit, define or restrict the
substantive provisions of this Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes
the entire agreement of Buyer and Seller with respect to the purchase
and sale of the Premises, and supersedes any prior or contemporaneous
agreement with respect thereto. No amendment or modification of this
Agreement shall be binding upon the parties unless made in writing and
signed by both Seller and Buyer. Neither this Agreement nor any
Memorandum thereof shall be recorded by any party and, if recorded by
any party, the other party hereto may immediately terminate all of its
obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to
the performance of all of the terms, conditions and covenants of this
Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with
each other to carry out effectively the purchase and sale of Premises
in accordance herewith and the satisfaction and compliance with all of
the conditions and requirements set forth herein, and shall execute
such instruments and perform such acts as may be reasonably requested
by either party hereto.
(f) Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with
the laws and customs of the State in which the Premises are located.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the
same instrument.
(h) Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters
provided for herein, the prevailing party shall be entitled to recover
from the non-prevailing party its costs of court, legal expenses and
reasonable attorneys' fees. As used herein, the "prevailing party"
shall include, without limitation, any party who dismisses an action
for recovery hereunder in exchange for payment of the sums allegedly
due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
(i) Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean
and refer to this entire Agreement and not to any particular article,
section or paragraph of this Agreement, unless the context clearly
indicates otherwise.
(j) Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like
shall be determined on a "calendar" day basis. If any day for
performance, approval, delivery or review shall fall on a Saturday,
Sunday or legal holiday, the time therefor shall be extended to the
next business day.
(k) Authority. Each person executing this Agreement, by his or
her execution hereof, represents and warrants that they are fully
authorized to do so, and that no further action or consent on the part
of the party for whom they are acting is required to the effectiveness
and enforceability of this Agreement against such party following such
execution.
(l) Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of
the remaining provisions of this Agreement shall not be affected
thereby.
(m) Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a
waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by either party to or of any act by
the other party requiring such consent or approval shall not be deemed
to waiver or render unnecessary consent to or approval of any
subsequent similar act.
(n) Relationship of the Parties. Nothing herein contained
shall be deemed or construed by the parties hereto, nor by any third
party, as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, it being
understood and agreed that no provision contained herein, nor any acts
of the parties hereto shall be deemed to create the relationship
between the parties hereto other than the relationship of seller and
buyer.
(o) Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and delivered to Buyer no later than
five (5) days following the date of Buyer's execution of this
Agreement.
[SIGNATURES APPEAR ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Purchase
and Sale Contract on the date first above written.
BUYER:
CNL RETIREMENT CORP.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Executive Vice President
----------------------------
Date: February 11, 2002
-------------------
SELLER:
AMERICAN RETIREMENT CORPORATION, a Tennessee corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, EVP - Finance, CFO
-----------------------------------
Secretary and Treasurer
-----------------------------------
Date: February 11, 2002
-----------------
ESCROW AGENT:
LAWYERS TITLE INSURANCE CORPORATION
By: _______________________________
Name: _______________________________
Date: _______________________________
