Exhibit 10.50
REAL ESTATE PURCHASE AND SALE CONTRACT
by and between
CNL RETIREMENT CORP.
a Florida corporation,
as BUYER
and
AMERICAN RETIREMENT CORPORATION,
a Tennessee corporation,
as SELLER
Premises: Broadway Plaza at Pecan Park,
City of Arlington, Tarrant County, Texas
(Tenant: ARC Pecan Park, L.P.)
TABLE OF CONTENTS
Page
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1. Definitions..............................................................................................2
2. Purchase and Sale of Premises............................................................................3
3. Purchase Price for Premises..............................................................................3
4. Closing Date.............................................................................................3
5. Conditions to Buyer's Obligation to Close................................................................3
6. Deliveries at Closing....................................................................................7
7. Closing and Other Costs, Adjustments and Prorations......................................................9
8. Inspections.............................................................................................10
9. Title to Premises; State of Title to be Conveyed........................................................10
10. Escrow Agent............................................................................................10
11. Covenants, Representations and Warranties...............................................................12
12. Covenants of Seller Pending Closing.....................................................................14
13. Eminent Domain..........................................................................................15
14. Casualty................................................................................................15
15. Remedies Upon Default...................................................................................15
16. Notices.................................................................................................16
i
17. Brokerage Commissions...................................................................................17
18. Miscellaneous Provisions................................................................................17
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 111
Westwood Place, Suite 402, Brentwood, Tennessee 37027 ("Seller"), and CNL
RETIREMENT CORP., a Florida corporation, having a mailing address at CNL Center
at City Commons, 450 South Orange Avenue, Orlando, Florida 32801 ("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 Arlington, Tarrant County, Texas,
and Buyer is willing to purchase such real property from Seller upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere in
this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
ii
(a) "Closing" shall mean the consummation of the purchase and sale of the
Premises in accordance with the terms of this Agreement.
(b) "Contracts" shall mean, with respect to the Premises, any equipment
leases relating to the Premises and disclosed to Buyer on or before Closing
which are to survive the Closing and to which the Seller is a party.
(c) "Earnest Money Deposit" shall mean the deposit of $50,000.00 to be
given by Buyer to Escrow Agent pursuant to Section 3.(a) of this Agreement.
(d) "Effective Date" of this Agreement shall mean that date upon which the
last of the Buyer and Seller has executed this Agreement.
(e) "Escrow Agent" shall mean Fidelity National Title Insurance Company,
whose address is set forth in Section 16 below.
(f) "Guarantor" shall mean American Retirement Corporation, a Tennessee
corporation.
(g) "Guaranty" shall mean the unconditional guaranty of the Lease to be
executed by the Guarantor and delivered to Buyer at Closing.
(h) "Hazardous Materials" shall mean all toxic or hazardous materials,
chemicals, wastes, pollutants or similar substances, including, without
limitation, Petroleum (as hereinafter defined), asbestos insulation and/or urea
formaldehyde insulation, which are regulated, governed, restricted or prohibited
by any federal, state or local law, decision, statute, rule, regulation or
ordinance currently in existence or hereafter enacted or rendered (hereinafter
collectively referred to as the "Hazardous Materials Laws") including, but not
limited to, those materials or substances defined as "hazardous substances,"
"hazardous materials," "toxic substances" or "pollutants" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act,
33 U.S.C. Section 1251 et seq., and any applicable statutes, ordinances or
regulations under the laws of the State in which the Premises are located, and
any rules and regulations promulgated thereunder, all as presently or hereafter
amended. "Petroleum" for purposes of this Agreement shall include, without
limitation, oil or petroleum of any kind and in any form including but not
limited to oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with
other waste, crude oil, gasoline, diesel fuel and kerosene.
(i) "Improvements" shall mean the building consisting of 95 assisted living
and dementia care units (97 beds) and other related improvements to be conveyed
to Buyer and leased by Tenant pursuant to the terms of this Agreement, and all
appurtenances thereto, including but not limited to all pavement, accessways,
curb cuts, parking, drainage systems and
facilities, landscaping, and utility facilities and connections for sanitary
sewer, potable water, irrigation, electricity, telephone and natural gas, if
applicable or required by the Lease, to the extent the same form a part of the
Premises.
(j) INTENTIONALLY OMITTED
(k) "Lease" shall mean that certain Lease Agreement to be entered into at
Closing between Buyer, as lessor, and Tenant, as lessee, pursuant to which
Tenant shall lease the Premises and Improvements from Buyer.
(l) INTENTIONALLY OMITTED
(m) INTENTIONALLY OMITTED
(n) INTENTIONALLY OMITTED
(o) INTENTIONALLY OMITTED
(p) "P&E" shall mean the "Initial Landlord P&E" as that term is defined in
the Lease.
(q) "Permits" shall mean all of the governmental permits, including
licenses and authorizations, required for the construction, ownership and
operation of the Premises, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities other than such permits, operating
permits, certificates, licenses and approvals which are to be held by, or
transferred to, the Tenant in order to permit the Tenant to operate the Premises
properly in accordance with the terms of the Lease.
(r) "Permitted Exceptions" shall mean those items described on Exhibit B
attached hereto.
(s) "Plans" shall mean the final "as-built" plans and specifications for
the Improvements, which are to be furnished by Seller to Buyer pursuant to
Section 5.(a)(5) of this Agreement.
(t) "Premises" shall mean that certain parcel of real property being more
particularly described on Exhibit A attached hereto, together with all of the
Improvements, tenements, hereditaments and appurtenances belonging or in any way
appertaining to such real property, and all of Seller's rights, title and
interest in and to (i) any and all property lying in the bed of any street, road
or avenue, open or proposed, in front of or adjoining such real property to the
center line thereof, (ii) any strips and gores of land adjacent to, abutting or
used in connection with such real property, and (iii) any easements and rights,
if any, inuring to the benefit of such real property or to Seller in connection
therewith.
(u) "Purchase Price" shall mean TEN MILLION FIVE HUNDRED SEVENTY-EIGHT
THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($10,578,750.00).
(v) "Seller's Reimbursement" shall mean the fixed sum of $78,750.00, to be
credited by Seller to Buyer at Closing in reimbursement of Buyer's third-party
inspection, review and other acquisition costs.
(w) "Tenant" shall mean ARC Pecan Park, L.P., a Tennessee limited
partnership which is a wholly-owned subsidiary entity of Seller, which Seller
shall cause to enter into the Lease.
(x) "Title Company" shall mean Fidelity National Title Insurance Company,
which shall issue the owner's policy of title insurance required hereunder by
and through its agent.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Premises to Buyer,
and Buyer hereby agrees to purchase the Premises.
3. Purchase Price for Premises. The Purchase Price for the Premises shall
be payable in the following manner:
(a) Earnest 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 Earnest Money Deposit hereunder, to be held and disbursed in
accordance with the terms of this Agreement.
(b) Earnest Money Deposit. The Earnest Money Deposit shall be credited to
the cash due from Buyer at Closing.
(c) Balance of Purchase Price. The balance of the Purchase Price, less any
apportionments set forth in Section 7 hereof, shall be paid in full by Buyer at
the Closing by wire transfer of immediately available federal funds, as Seller
shall direct.
4. Closing Date. The Closing shall take place on and as of September 11,
2001 (the "Closing Date") or such other date as is mutually agreeable to Buyer
and Seller, at the offices of Escrow Agent in Orlando, Florida, at such time as
is mutually acceptable to Buyer and Seller.
5. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Premises on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
(a) On or before the Effective Date of this Agreement: Seller shall deliver
to Buyer (at no cost to Buyer):
(1) Copies of any and all tests, surveys, examinations, plans, appraisals,
permits, licenses, environmental studies or reports and other studies or
investigations regarding the Premises which the Seller may have in its
possession or control;
(2) If Tenant is a different entity than Seller, a current operating
statement, profit and loss statement, balance sheet and other satisfactory
financial information for Tenant, certified as true, correct and complete by
Tenant, reflecting Tenant's ability to pay rent and perform its other Lease
obligations, and a current profit and loss statement, balance sheet and other
satisfactory financial information for Guarantor reflecting Guarantor's ability
to perform its Guaranty obligations;
(3) A current letter or certificate from an appropriate municipal, county
or other governmental representative confirming the zoning classification for
the Premises, that the use and operation of the Premises for Tenant's proposed
use is in compliance with the applicable zoning ordinance, and a final recorded
plat approved by the applicable governmental authority or other acceptable
evidence confirming that the Premises are a legally subdivided parcel;
(4) Final "as-built" Plans for the Improvements;
(5) All Permits, including without limitation, a certificate of occupancy
and an operating permit or license for the use and occupancy of the Premises by
Tenant.
(6) All warranties and guaranties pertaining to the Improvements,
specifically including the manufacturer's roof membrane warranty issued with
respect to the building comprising the Improvements.
(7) Buyer shall have received a Commitment from the Title Company for an
owner's title insurance policy (ALTA form) with respect to the Premises, naming
Buyer as the Proposed Insured in the amount of the Purchase Price (the "Title
Commitment"), together with the following:
(i) All exceptions and appurtenances to title referred to in the Title
Commitment;
(ii) All proposed exceptions and appurtenances to title which are intended
to be of record as of the Closing Date;
(iii) All covenants and restrictions, if any, which Seller desires that the
Lease establish of record for the benefit of Tenant, whether affecting the
Premises, the remainder of the project or center in which the Premises are
located or any other property;
(iv) Evidence that any such covenants and restrictions for the benefit of
Tenant which encumber property other than the Premises are not subject to
extinguishment (e.g., by the foreclosure of any superior lien on the property
encumbered thereby) and, if permitted by applicable law, the Title Commitment
shall insure the same;
(v) A copy of the most recent tax bill (and paid receipt therefor) with
respect to ad valorem real property taxes and assessments levied or assessed
with respect to the Premises.
(8) Additional matters to be delivered, agreed upon or accomplished on or
before the Effective Date of this Agreement:
(i) INTENTIONALLY OMITTED
(ii) Buyer shall have approved the zoning of the Premises and its
compliance with applicable zoning and subdivision laws, including without
limitation the documents which Seller is required to furnish Buyer pursuant to
Section 5.(a) above.
(iii) Buyer and Tenant shall have mutually agreed upon all of the terms and
conditions of the Lease to be entered into at Closing.
(iv) INTENTIONALLY OMITTED
(v) INTENTIONALLY OMITTED
(vi) Buyer and Seller shall have mutually agreed the form of the Guaranty
to be delivered to Buyer at Closing and on the form of the Earn Out Agreement,
Option Agreement and First Offer Agreement as such terms are defined herein.
(vii) INTENTIONALLY OMITTED
(viii) Buyer and Seller shall have mutually agreed upon the schedule of P&E
to be conveyed to Buyer at Closing.
(ix) Buyer shall have approved any financial information on the Tenant and
Guarantor which Seller is required to furnish to Buyer pursuant to Section
5.(a)(3) above.
(x) Buyer and Tenant shall have approved the Plans which Seller is required
to furnish to Buyer pursuant to Section 5.(a) above.
(xi) Buyer shall have received a certificate from an inspecting architect
acceptable to Buyer substantially in the form attached hereto as Exhibit H (or
otherwise reasonably acceptable to Buyer), and a certificate from an inspecting
civil engineer acceptable to Buyer substantially in the form attached hereto as
Exhibit I (or otherwise reasonably acceptable to Buyer). Seller shall pay all
costs in connection with obtaining the aforesaid certificates.
(xii) Buyer shall have approved the Permits, warranties and guaranties
copies of which Seller is required to furnish to Buyer pursuant to Section 5.(a)
above, the originals of which shall be delivered to Buyer at the Closing.
(xiii) Buyer shall have received evidence that legally sufficient parking
is available on the Premises without the benefit of any parking easements
created on adjacent property to comply with applicable zoning requirements and
that all utilities are available to and in service at the Improvements.
(xiv) Buyer shall have obtained and approved an appraisal of the Premises.
(xv) Buyer shall have obtained and approved an environmental assessment of
the Premises, provided that Buyer shall, if required by Buyer's environmental
investigation consultant, promptly obtain and deliver a 50-year chain of title
report evidencing the record ownership of the Premises during the preceding 50
years, accompanied by copies of the deeds and other instruments evidencing such
record ownership..
(xvi) Buyer shall have obtained and approved an "as-built" survey of the
Premises.
(xvii) Buyer shall have otherwise determined, in its sole and absolute
discretion, that the Premises are satisfactory to Buyer.
In the event that this Agreement is executed and effective as of the Closing
Date as intended, Buyer shall be deemed to have approved all of the matters to
be received, reviewed and approved by Buyer pursuant to Sections 5.(a) above.
(b) On or before the Closing Date:
(1) Seller shall have completed the Improvements and all utility services
and have opened for business at the Premises.
(2) The representations and warranties of Seller set forth in Section 11
hereof shall be true, correct and complete in all material respects on and as of
the Closing Date.
(3) Neither Seller, Tenant nor Guarantor shall, at any time during the term
of this Agreement, file or have filed against it a petition seeking relief under
the bankruptcy or other similar laws of the United States or any state thereof.
(4) Tenant shall have duly executed and delivered the Lease to Buyer,
Guarantor shall have executed and delivered the Guaranty to Buyer.
(5) The environmental assessment approved by Buyer as of the Effective Date
shall continue to accurately reflect the environmental condition of the
Premises.
(6) Buyer shall have received the Title Commitment "marked-up" and
effectively dated as of the Closing, deleting all requirements thereunder so as
to obligate the Title Company unconditionally to issue to Buyer an original
owner's policy of title insurance in the amount of the Purchase Price subject
only to the Permitted Exceptions.
(7) Title Company shall deliver to Buyer a "closing protection" or "insured
closing" letter, evidencing the authority of any agent of Title Company which
conducts the Closing and issues the Buyer's owner's policy of title insurance
for or on behalf of Title Company.
If the foregoing contingencies are not satisfied within the respective time
periods set forth above, then in addition to any rights afforded by Section 15
of this Agreement Buyer shall be entitled to terminate this Agreement by
delivering written notice thereof to Seller and Escrow Agent in accordance with
and subject to the provisions of Section 10.(b) below, whereupon the Earnest
Money Deposit and all interest earned thereon shall be returned to Buyer and
this Agreement shall terminate and become null and void and all parties hereto
shall be relieved of all obligations hereunder.
6. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
(a) Seller shall deliver to Buyer:
(1) An appropriate "Owner's Affidavit" or other acceptable evidence
attesting to the absence of liens, lien rights, rights of parties in possession
(other than Tenant) and other encumbrances other than the Permitted Exceptions
naming both Buyer and Title Company as benefitted parties, so as to enable Title
Company to delete the "standard" exceptions for such matters from Buyer's
owner's policy of title insurance and otherwise insure any "gap" period
occurring between the Closing and the recordation of the closing documents;
(2) A duly executed Warranty Deed with respect to the Premises subject to
no exceptions other than the Permitted Exceptions, in the form approved by Buyer
and the Title Company and revised as needed to conform to the requirements of
state law for the state in which the Premises are located;
(3) An Assignment of Licenses, Permits, Plans, Contracts and Warranties
with respect to the Premises in the form approved by Buyer, together with all of
the documents assigned thereby, assigning and/or reserving unto the Tenant,
however, (i) the right to enforce the same during the term of the Lease, and
(ii) specific operating licenses which Buyer has approved in its reasonable
discretion as necessary for Tenant to retain for the proper licensing and
operation of the Facility, as such term is defined in the Lease;
(4) Three (3) signed counterparts of the closing statement;
(5) An opinion from Seller's and Tenant's counsel on matters and in the
form approved by Buyer and relating to due organization and good standing of,
and the due authorization, execution and delivery of the closing documents
delivered by, Seller, Tenant and such other related parties involved in the
transaction as Buyer may reasonably require, and the enforceability of the Lease
against Tenant and the Guaranty against Guarantor;
(6) An appropriate FIRPTA Affidavit or Certificate evidencing that Seller
is not a foreign person or entity under Section 1445(f)(3) of the Internal
Revenue Code, as amended;
(7) All certificates of insurance, insuring Buyer as the owner of the
Premises, which are required by the Lease to be furnished by the Tenant to the
landlord;
(8) The Guaranty;
(9) Two (2) duly executed counterparts of the Earn Out Agreement to be
entered into between Seller and Buyer in the form approved by Seller and Buyer
and relating to potential Earn Out amounts which may be earned in the future by
Seller ("Earn Out Agreement");
(10) Two (2) duly executed counterparts of the Option Agreement to be
entered into between Seller and Buyer in the form approved by Seller and Buyer
and relating to Seller's retained option to purchase certain excess property
within the lands being conveyed to Buyer hereunder ("Option Agreement");
(11) Two (2) duly executed counterparts of the Right of First Offer
Agreement to be entered into between Seller and Buyer in the form approved by
Seller and Buyer and relating to the rights granted by Buyer to Seller in
respect of certain potential offers to purchase back the Property ("First Offer
Agreement");
(12) INTENTIONALLY OMITTED
(13) One (1) counterpart of the Lease duly executed by Tenant;
(14) A bill of sale conveying to Buyer title to the P & E;
(15) Certified copies of applicable resolutions and certificates of
incumbency with respect to the Seller, Tenant and such other related parties
involved in the transaction as Buyer may reasonably require;
(16) A certificate of a duly authorized officer of Seller confirming the
continued truth and accuracy of the representations and warranties of the Seller
made in this Agreement.
(17) Such other closing documents as are reasonably necessary and proper in
order to consummate the transaction contemplated by this Agreement, including
those
(if any) required to be delivered by Seller pursuant to Section 5.(d) above and
the joinder, if necessary or reasonably requested by Buyer, in all conveyance
and other closing documents, of the Seller-controlled entities involved in the
existing synthetic lease arrangements affecting the Premises and related
property interests. In addition the Seller shall at Closing deliver, assign and
convey or caused to be delivered, assigned and conveyed to Buyer all interests,
rights and benefits relating to the Premises which are obtained from or
reconveyed by the other parties to such synthetic lease transactions.
(b) Buyer shall deliver to Seller:
(1) The Purchase Price, less all the deductions, prorations, and credits
provided for herein.
(2) Three (3) duly executed counterparts of the closing statement.
(3) Two (2) duly executed counterparts each of the Earn Out Agreement,
Option Agreement, and Option Agreement;
(4) One (1) counterpart of the Lease duly executed by Buyer.
7. Closing and Other Costs, Adjustments and Prorations. The Closing costs
shall be allocated and other closing adjustments and prorations made between
Seller and Buyer as follows:
(a) The Seller shall be charged with the following items, all of which
shall be credited against, and shall reduce dollar-for-dollar, the Purchase
Price payable to Seller at the Closing: the usual and customary costs and
expenses set forth in a settlement statement with respect to the conveyance of a
commercial property (excluding only those expenses specifically described below
as the responsibility of Buyer) and including without limitation (i) all real
estate conveyance taxes and other transfer taxes, if any, imposed by state or
local authorities (including those transfer taxes customarily paid by a grantee)
and all recording charges; (ii) costs of removing any lien, assessment or
encumbrance required to be discharged hereunder in order to convey title to the
Premises as herein provided, including, without limitation, any prepayment
penalties or fees incurred in connection therewith; (iii) the cost of the
owner's policy of title insurance (ALTA Form, including any additional premiums
to delete the "standard" exceptions for parties in possession, matters of survey
and construction lien claims, and to issue such Endorsements as Buyer may
request provided the same are permitted by law and are customary in similar
commercial transactions); (iv) the cost of the architect's and engineer's
certificates required hereunder; (vii) legal fees and expenses of Seller; (viii)
the fee, if any, required by the manufacturer for the transfer by Seller to
Buyer of the manufacturer's roof membrane warranty for the building; and (ix)
Seller's Reimbursement to be credited to Buyer at Closing as reimbursement for
Buyer's third-party inspection, review and other acquisition costs.
(b) The Buyer shall be charged with the following items in addition to the
Purchase Price payable to Seller at Closing: (i) fees and expenses of Buyer's
counsel; (ii)
recording costs for the deed; and (iii) Buyer's third-party inspection, review
and other acquisition costs to the extent the same exceed Seller's Reimbursement
and are not otherwise specifically to be paid by Seller pursuant to the terms of
this Agreement.
(c) As the Lease is to be entered into between Buyer and Tenant effective
as of the Closing Date, it shall not be necessary for rent or any other charges
payable under the Lease to be prorated at Closing, and all rent and other
charges payable under the Lease shall be the property of Buyer.
(d) Taxes, assessments and other charges shall be not prorated as of
Closing, as Seller shall be responsible for such matters relating to the period
prior to Closing, and Tenant shall be responsible for such matters from and
after Closing. Certified, confirmed and ratified special assessments liens as of
the Closing Date are to be paid by Seller. Seller shall also pay and be
responsible for any "rollback" taxes or retroactively assessed taxes which arise
out of or relate to any prior use of the Premises or any improper or inadequate
assessment of the Premises for the period prior to the Closing, which obligation
shall expressly survive the Closing.
8. Inspections. Subject to the rights of any tenant or other party lawfully
in occupancy, Buyer through its agents, employees and independent contractors
shall have the right from time to time prior to the Closing Date, upon prior
notice to Seller, to enter the Premises for the purpose of inspecting the same
and performing environmental and other tests thereon. Buyer shall indemnify and
hold harmless Seller and its contractors, agents, employees and affiliates from
and against any claims, losses, damages and costs arising out of any inspection
of and testing at the Premises by Buyer, its agents and representatives. Buyer
shall not, and shall not permit its agents or representatives to, disrupt
Seller's or Tenant's activities at the Premises.
9. Title to Premises; State of Title to be Conveyed. At the Closing, Buyer
shall receive fee simple title to the Premises free from all liens,
encumbrances, restrictions, rights-of-way and other matters, excepting only the
Permitted Exceptions and any other matter consented to in writing by Buyer
pursuant to Section 12.(a) hereof.
10. Escrow Agent. By its execution hereof, Escrow Agent shall accept the
escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
(a) After clearance of funds, the Earnest 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 Earnest 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 Earnest Money Deposit to Seller or
to Buyer, as the case may be, under the following conditions:
(1) INTENTIONALLY OMMITTED.
(2) To Seller on the Closing Date, provided Closing shall occur pursuant to
the Agreement.
(3) To Seller upon receipt of written demand therefor ("Seller's Demand for
Deposit") stating that Buyer has defaulted in the performance of Buyer's
obligation to close under this Agreement and the facts and circumstances
underlying such default, provided, however, that the Escrow Agent shall not
honor such demand until more than ten (10) days after the Escrow Agent shall
have sent a copy of such demand to Buyer in accordance with the provisions of
Section 10.(c) of this Agreement nor thereafter, if the Escrow Agent shall have
received a "Notice of Objection" (as hereinafter defined) from Buyer within such
ten (10) day period.
(4) To Buyer upon receipt of written demand therefor ("Buyer's Demand for
Deposit") stating that this Agreement has been terminated in accordance with the
provisions hereof for any reason other than as provided in Section 10.(b)(1)
above, or that Seller has defaulted in the performance of any of Seller's
obligations under this Agreement and the facts and circumstances underlying the
same; provided, however, that the Escrow Agent shall not honor such demand until
more than ten (10) days after the Escrow Agent shall have sent a copy of such
demand to Seller in accordance with the provisions of Section 10.(c) of this
Agreement nor thereafter, if the Escrow Agent shall have received a Notice of
Objection from Seller within such ten (10) day period.
(c) Within two (2) business days of the receipt by the Escrow Agent of a
Seller's Demand for Deposit or a Buyer's Demand for Deposit the Escrow Agent
shall send a copy thereof to the other party in the manner provided in Section
16 of this Agreement. The other party shall have the right to object to the
delivery of the Deposit by sending written notice (the "Notice of Objection") of
such objection to the Escrow Agent in the manner provided in Section 16 of this
Agreement, which Notice of Objection shall be deemed null and void and
ineffective if such Notice of Objection is not received by the Escrow Agent
within the time periods prescribed in Section 10.(b) of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
(d) In the event the Escrow Agent shall have received the Notice of
Objection within the time periods prescribed in Section 10.(b) of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest 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 Earnest 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 Earnest 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 Earnest 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 Earnest Money Deposit in escrow, pursuant to the provisions of this
Agreement.
11. Covenants, Representations and Warranties(a). In order to induce Buyer
to enter into this Agreement and purchase the Premises, Seller makes the
following covenants, agreements, representations and warranties, all of which
shall survive the Closing and the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations and consents to enable
it to execute and deliver this Agreement and to consummate the transaction
contemplated hereby, including without limitation all authorizations and
consents required to be obtained from governmental authorities during the course
of, and upon completion of, construction of the Improvements.
(2) Seller holds fee simple title to the Premises, free of all liens,
assessments and encumbrances except for the Permitted Exceptions, and liens and
encumbrances which will be paid and discharged or otherwise released at or prior
to the Closing. Seller has no knowledge of any condition or state of facts which
would preclude, limit or restrict the business operations contemplated, pursuant
to the terms of the Lease, to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect to the Improvements,
there are no service or maintenance contracts affecting the Premises to which
Buyer will be bound upon Closing.
(4) The Premises and the proposed use thereof by Tenant and the condition
thereof do not violate, in any material respect, any applicable deed
restrictions, zoning or subdivision regulations, urban redevelopment plans,
local, state or federal environmental law or regulation or any building code or
fire code applicable to the Premises ("Applicable Laws and
Restrictions"), and are not designated by any governmental agency to be in a
flood plain area. Seller has, on or before the Effective Date, provided written
notice to Buyer of any continuing, alleged or potential violations of Applicable
Laws and Restrictions known to Seller.
(5) As of the Closing Date (i) there shall exist no event which, with the
giving of notice or the passage of time or both, would constitute an Event of
Default under the Lease; (ii) Tenant shall not have any defense, set-off or
counterclaim in respect of its obligations under the Lease arising as a result
of Seller's actions or activities, or those of Seller's employees, agents or
contractors; and (iii) all leasing commissions and fees with respect to the
Lease, if any, have been paid in full by Seller or Tenant.
(6) There is no pending or, to Seller's knowledge, threatened litigation or
other proceeding affecting the title to or the use or operation of the Premises.
(7) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall
certify its taxpayer identification number at Closing.
(8) To Seller's knowledge, there are no federal, state, county or municipal
plans to restrict or change access from any highway or road to the Premises.
(9) The Premises are a separate parcel for real estate tax assessment
purposes.
(10) All of the financial data regarding the construction, ownership and
operation of the Premises that Seller has provided to Buyer is true, complete
and correct.
(11) To the best of Seller's knowledge the Improvements have been
constructed in accordance with (i) the Plans and (ii) applicable building codes,
laws and regulations in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the best of Seller's
knowledge, have been, stored, treated, disposed of or incorporated into, on or
around the Premises in violation of any applicable statutes, ordinances or
regulations; the Premises are in material compliance with all applicable
environmental, health and safety requirements; any business currently or, to the
best of Seller's knowledge, heretofore operated on the Premises has disposed of
its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
(13) Seller specifically acknowledges and understands that where Seller
knows of any fact(s) materially affecting the value or desirability of the
Premises, whether said fact(s) is/are readily observable or not, Seller hereby
assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants
that, other than as may be disclosed in the foregoing
representations and warranties, Seller has no knowledge of any other fact(s)
materially affecting the value or desirability of the Premises whether or not
said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set forth herein
and elsewhere in this Agreement shall be true upon the execution of this
Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date.
(b) In order to induce Seller to enter into this Agreement and sell the
Premises, Purchaser makes the following covenants, agreements, representations
and warranties, all of which shall survive the Closing and the purchase and sale
of the Premises:
(1) Purchaser is a corporation duly organized and validly existing and in
good standing under the laws of the State of Florida. Purchaser has all
requisite power and authority under the laws of the State of Florida and its
charter documents to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(2) Purchaser has taken all necessary action to authorize the execution,
delivery and performance of this Agreement, and upon the execution and delivery
hereof, this Agreement shall constitute the valid and binding agreement of
Purchaser.
12. Covenants of Seller Pending Closing. Between the date hereof and the
Closing Date:
(a) Seller shall not enter into any contracts for services or otherwise
that may be binding upon the Premises or upon the Buyer subsequent to Closing,
nor grant or permit the granting of any easements or licenses affecting the
Premises, nor take or permit any legal action in connection with the Premises
which will affect Buyer's title to the Premises, nor enter into or consent to
any leases of space in the Premises other than residential leases entered into
in the ordinary course of Seller's business, without the express prior written
consent of Buyer. Buyer's consent may be withheld at Buyer's sole option;
however, Buyer's response to any of the foregoing shall not be unreasonably
delayed and, if denied, shall be accompanied by a reasonably detailed
explanation of the reason for such denial.
(b) Seller shall within two (2) business days following receipt thereof (or
the day of receipt if received the day prior to the Closing Date) provide Buyer
with copies of any letters or notices received by Seller relating to or in any
manner affecting the Premises.
(c) Seller shall, at no expense to Seller, reasonably cooperate with Buyer
in connection with Buyer's obtaining any insurance which may be required to be
maintained by Buyer with respect to the Premises following the Closing,
including the possible assumption by Buyer of Seller's existing insurance
coverage (evidence of which Seller shall furnish Buyer on request).
13. Eminent Domain. If prior to the date of the Closing, Seller acquires
knowledge of any pending or threatened action, suit or proceeding to condemn or
take all or any part of the Premises under the power of eminent domain, then
Seller shall immediately give notice thereof to Buyer. If such condemnation
would otherwise give Tenant the option to reduce or abate rent or terminate the
Lease, then, at Buyer's option, buyer may terminate this Agreement, whereupon
the full amount of the Earnest 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 abate 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
abate rent or terminate the Lease, then Buyer, at its option, may terminate this
Agreement, whereupon the full amount of the Earnest 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 abate 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 Earnest
Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the Earnest 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 Earnest 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 Earnest 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
111 Westwood Place, Suite 402,
Brentwood, Tennessee 37027
Attn: Mr. George Hicks, Chief Financial Officer
Phone: (615) 221-2250
Fax: (615) 221-2269
with a copy to: Bass, Berry & Sims PLC
315 Deaderick Street., Suite 2700
Nashville, Tennessee 37238
Attn: T. Andrew Smith, Esquire
Phone: (615) 742-6200
Fax: (615) 742-2766
If to Buyer: CNL Retirement Corp.
CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
Attn: Mr. Phillip M. Anderson, Jr.
Phone: (407) 835-3201
Fax: (407) 835-3232
with a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Attn: Scott C. Thompson, Esquire
Phone: (407) 843-4600
Fax: (407) 843-4444
If to Escrow Agent: Fidelity National Title Insurance Company
1500 Walnut Street, Suite 300
Philadelphia, Pennsylvania 19102
Attn: Ms Karen Mark, Vice President
Phone: (888) 616-2468
Fax: (215) 732-6726
17. Brokerage Commissions. Seller and Buyer each warrant to the other party
that no finders or brokers have been involved with the introduction of Buyer and
Tenant and/or the execution and delivery of the Lease and the leasing of the
Premises pursuant thereto. In the event of a breach of the foregoing warranties,
the breaching party agrees to save, defend, indemnify and hold harmless the
non-breaching party from and against any claims, losses, damages, liabilities
and expenses, including but not limited to attorneys' fees. The obligations of
this Section shall survive the Closing or earlier termination of this Agreement.
18. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Buyer may assign all of its rights and
obligations hereunder without the written consent of Seller to any entity which
is owned or controlled by CNL Retirement Properties, Inc., a Maryland
corporation, provided, however, that any assignee of Buyer shall assume all of
the obligations of Buyer hereunder. In the event of any permitted assignment
hereunder Buyer shall thereupon be relieved of all further liability under this
Agreement; except that the Earnest Money Deposit shall not be released or
otherwise adversely affected as a result of any such assignment. Seller shall
not have the right to assign its rights and obligations hereunder. Subject to
the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of Seller and Buyer and their respective successors and assigns.
(b) Captions. The several headings and captions of the Sections and
subsections used herein are for convenience of reference only and shall in no
way be deemed to limit, define or restrict the substantive provisions of this
Agreement.
(c) Entire Agreement; Recording. This Agreement constitutes the entire
agreement of Buyer and Seller with respect to the purchase and sale of the
Premises, and supersedes any prior or contemporaneous agreement with respect
thereto. No amendment or modification of this Agreement shall be binding upon
the parties unless made in writing and signed by both Seller and Buyer. Neither
this Agreement nor any Memorandum thereof shall be recorded by any party and, if
recorded by any party, the other party hereto may immediately terminate all of
its obligations under this Agreement.
(d) Time of Essence. Time is of the essence with respect to the performance
of all of the terms, conditions and covenants of this Agreement.
(e) Cooperation. Buyer and Seller shall cooperate fully with each other to
carry out effectively the purchase and sale of the Premises in accordance
herewith and the satisfaction and compliance with all of the conditions and
requirements set forth herein, and shall execute such instruments and perform
such acts as may be reasonably requested by either party hereto.
(f) Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws and customs of
the State in which the Premises are located.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
(h) Attorneys' Fees. In the event any party to this Agreement should bring
suit against the other party in respect to any matters provided for herein, the
prevailing party shall be entitled to recover from the non-prevailing party its
costs of court, legal expenses and reasonable attorneys' fees. As used herein,
the "prevailing party" shall include, without limitation, any party who
dismisses an action for recovery hereunder in exchange for payment of the sums
allegedly due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
(i) Certain References. As used in this Agreement, the words "hereof,"
"herein," "hereunder" and words of similar import shall mean and refer to this
entire Agreement and not to any particular article, section or paragraph of this
Agreement, unless the context clearly indicates otherwise.
(j) Time Periods. Unless otherwise expressly provided herein, all periods
for performance, approval, delivery or review and the like shall be determined
on a "calendar" day basis. If any day for performance, approval, delivery or
review shall fall on a Saturday, Sunday or legal holiday, the time therefor
shall be extended to the next business day.
(k) Authority. Each person executing this Agreement, by his or her
execution hereof, represents and warrants that they are fully authorized to do
so, and that no further action or consent on the part of the party for whom they
are acting is required to the effectiveness and enforceability of this Agreement
against such party following such execution.
(l) Severability. If any provision of this Agreement should be held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
(m) Waiver. One or more waivers of any covenant, term or condition of this
Agreement by either party shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waiver or render unnecessary consent to or
approval of any subsequent similar act.
(n) Relationship of the Parties. Nothing herein contained shall be deemed
or construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that no provision
contained herein, nor any acts of the parties hereto shall be deemed to create
the relationship between the parties hereto other than the relationship of
seller and buyer.
(o) Termination. This Agreement shall be void and of no force and effect
unless signed by Seller and delivered to Buyer no later than five (5) days
following the date of Buyer's execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL RETIREMENT CORP., a Florida corporation
By: Phillip M. Anderson
Name: Phillip M. Anderson
Title: Chief Operating Officer
Date: November 9, 2001
SELLER:
AMERICAN RETIREMENT CORPORATION, a Tennessee
corporation
By: RC Roadman
Name: Ross C. Roadman
Title: Senior Vice President
Date: November 9, 2001
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
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Name:
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Title:
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Date:
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EXHIBIT A
DESCRIPTION OF PREMISES
[To be inserted]
EXHIBIT B
PERMITTED EXCEPTIONS
1. Ad valorem real property taxes and assessments for the year of Closing and
thereafter, and water, sewer and other assessments, if any, so long as the
foregoing are not yet due and payable.
2. The right of the Tenant to lease the Premises pursuant to the Lease.
3. [insert other final exceptions from title commitment]
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT E
INTENTIONALLY OMITTED
EXHIBIT F
INTENTIONALLY OMITTED
EXHIBIT G
INTENTIONALLY OMITTED