EXHIBIT 10.52
Purchase and Sale Agreement between
Marriott Senior Living Services, Inc.,
MSLS-MapleRidge, Inc., and Marriott International, Inc., as Sellers,
and CNL Retirement MA2, LP, as Purchaser,
CNL Retirement Partners, LP as the Orland Park Owner and
Eight Pack Management Corp., as Tenant,
relating to the Brighton Gardens of ▇▇▇▇▇▇▇ Estates - Hoffman Estates, Illinois;
Brighton Gardens of Tulsa - Tulsa, Oklahoma;
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
MapleRidge of Plymouth - Plymouth, Massachusetts;
MapleRidge of Willoughby - Willoughby, Ohio and
Pleasant Hills Retirement Community - Little Rock, Arkansas
PURCHASE AND SALE AGREEMENT
BY AND AMONG
MARRIOTT SENIOR LIVING SERVICES, INC.,
- and -
MSLS-MAPLERIDGE, INC.,
respectively, as Sellers,
and
MARRIOTT INTERNATIONAL, INC.,
and
CNL RETIREMENT MA2, LP,
as Purchaser,
CNL RETIREMENT PARTNERS, LP
as the Orland Park Owner
-and-
EIGHT PACK MANAGEMENT CORP.
as Tenant
DECEMBER __, 2002
Table of Contents
Page
SECTION 1. DEFINITIONS....................................................2
1.1 "Act of Bankruptcy"............................................2
1.2 "Affiliate"....................................................3
1.3 "Agreement"....................................................3
1.4 "Applicable Property Transferee"...............................3
1.5 "Arkansas Property"............................................3
1.6 "As-Built Drawings"............................................3
1.7 "Assets".......................................................3
1.8 "BG Orland Park"...............................................3
1.9 "Business Day".................................................3
1.10 "California Property"..........................................3
1.11 "Closing"......................................................3
1.12 "Closing Date".................................................3
1.13 "CNL Guaranty".................................................4
1.14 "Contracts"....................................................4
1.15 "Controlling Interest".........................................4
1.16 "Effective Date"...............................................4
1.17 "Entity".......................................................4
1.18 "Environmental Reports"........................................4
1.19 "Excluded Assets"..............................................4
1.20 "FAS"..........................................................4
1.21 "FF&E".........................................................4
1.22 "FF&E Schedule"................................................5
1.23 "Financing"....................................................5
1.24 "Illinois Property"............................................5
1.25 "Improvements".................................................5
1.26 "Intangible Property"..........................................5
1.27 "Inventories"..................................................5
1.28 "Lease"........................................................5
1.29 "MA2 - 2003 Purchase Agreement"................................5
1.30 "MA3 - 2002 Purchase Agreement"................................6
1.31 "MA3 - 2003 Purchase Agreement"................................6
1.32 "Massachusetts Property".......................................6
1.33 "Motor Vehicles"...............................................6
1.34 "New Orland Park Rent Guaranty"................................6
1.35 "Ohio Property"................................................6
1.36 "Oklahoma Property"............................................6
1.37 "Operating Agreement"..........................................6
1.38 "Operator".....................................................6
1.39 "Orland Park CNL Guaranty".....................................6
1.40 "Orland Park Rent Guaranty"....................................6
1.41 "Orland Park Lease"............................................6
1.42 "Orland Park Membership Interest Pledge".......................7
1.43 "Orland Park Operating Agreement"..............................7
1.44 "Orland Park Owner Agreement"..................................7
1.45 "Orland Park Property".........................................7
1.46 "Owner"........................................................7
1.47 "Owner Agreement"..............................................7
1.48 "Permits"......................................................7
1.49 "Permitted Encumbrances".......................................8
1.50 "Person".......................................................8
1.51 "Pooling Agreement"............................................8
1.52 "Property".....................................................8
1.53 "Property Transferee"..........................................8
1.54 "Proprietary Information" .....................................8
1.55 "Purchaser"....................................................8
1.56 "Purchase Price"...............................................9
1.57 "Real Property"................................................9
1.58 "Sellers"......................................................9
1.59 "Tenant".......................................................9
1.60 "Title Commitments"............................................9
1.61 "Title Company"................................................9
SECTION 2. PURCHASE-SALE AND LEASE; DILIGENCE.............................9
2.1 Purchase-Sale and Lease........................................9
2.2 Diligence Inspections..........................................9
2.3 Title Matters.................................................10
2.4 Survey........................................................11
2.5 Environmental Reports.........................................12
2.6 Taking and Casualty. ........................................12
SECTION 3. PURCHASE AND SALE.............................................14
3.1 Closing.......................................................14
3.2 Purchase Price................................................14
SECTION 4. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.................14
4.1 Property Transferees..........................................14
4.2 Closing Documents.............................................14
4.3 Condition of Properties.......................................17
4.4 Title Policies and Surveys....................................17
4.5 FF&E Schedule.................................................17
4.6 Permit Transfers..............................................17
4.7 Other.........................................................18
4.8 Five-Pack Unwind..............................................18
4.9 MA2 - 2003 Purchase Agreement.................................18
4.10 MA3 - 2002 Purchase Agreement.................................18
4.11 MA3 - 2003 Purchase Agreement.................................18
SECTION 4A. CONDITIONS TO TENANT'S OBLIGATION TO CLOSE......................19
4A.1 Closing Documents.............................................19
4A.2 Condition of Properties.......................................20
4A.3 Title Policies and Surveys....................................20
4A.3 Title Policies and Surveys....................................21
4A.4 FF&E Schedule.................................................21
4A.5 Other.........................................................21
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE.....................21
5.1 Purchase Price................................................21
5.2 Closing Documents.............................................21
5.3 Five-Pack Unwind..............................................22
5.4 MA2 - 2003 Purchase Agreement.................................22
5.5 MA3 - 2002 Purchase Agreement.................................22
5.6 MA3 - 2003 Purchase Agreement.................................22
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER......................22
6.1 Status and Authority of Owner.................................22
6.2 Status and Authority of MI....................................23
6.3 Employees.....................................................23
6.4 Existing Agreements...........................................23
6.5 Tax Returns...................................................24
6.6 Action of MI and Owners.......................................24
6.7 No Violations of Agreements...................................24
6.8 Litigation....................................................24
6.9 Not A Foreign Person..........................................25
6.10 Construction Contracts: Mechanics' Liens......................25
6.11 Permits, Licenses.............................................25
6.12 Hazardous Substances..........................................25
6.13 Insurance.....................................................25
6.14 Financial Information.........................................25
6.15 Contracts.....................................................26
6.16 Title to FF&E.................................................26
6.17 FF&E..........................................................26
6.18 No Proffers...................................................26
6.19 No Violations.................................................26
6.20 Separate Tax Parcel...........................................26
6.21 No Defaults...................................................26
6.22 American with Disabilities Act................................26
6.23 Natural Hazard Report for California Property.................27
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND
THE ORLAND PARK OWNER.........................................29
7.1 Status and Authority of Purchaser and the Orland Park Owner...29
7.2 Action of Purchaser and Orland Park Owner.....................29
7.3 No Violations of Agreements...................................29
7.4 Litigation....................................................30
SECTION 7A. REPRESENTATIONS AND WARRANTIES OF TENANT.......................30
7A.1 Status and Authority of Tenant................................30
7A.2 Actions of Tenant.............................................30
7A.3 No Violations of Agreements...................................31
7A.4 Litigation....................................................31
7A.5 Tenant's Financial Condition..................................31
SECTION 8. COVENANTS OF MI AND OWNERS....................................31
8.1 Compliance with Laws..........................................31
8.2 Construction..................................................32
8.3 Insurance.....................................................32
SECTION 9. APPORTIONMENTS................................................32
9.1 Apportionments................................................32
9.2 Closing Costs.................................................32
SECTION 10. LIMITATIONS ON LIABILITY......................................34
10.1 Default by Sellers............................................34
10.2 Default by Purchaser..........................................34
10.3 Default by the Tenant.........................................35
10.4 Limitations on Liability......................................35
SECTION 11. MISCELLANEOUS.................................................36
11.1 Agreement to Indemnify........................................36
11.2 Brokerage Commissions.........................................38
11.3 Publicity.....................................................38
11.4 Notices.......................................................38
11.5 Waivers, Etc..................................................41
11.6 Assignment; Successors and Assigns............................41
11.7 Severability..................................................41
11.8 Counterparts, Etc.............................................41
11.9 Governing Law; Jurisdiction; Waiver of Jury Trial.............41
11.10 Performance on Business Days..................................42
11.11 Attorneys' Fees...............................................42
11.12 Relationship..................................................42
11.13 Section and Other Headings....................................42
11.14 Disclosure....................................................42
11.15 Acknowledgment of the Financial Condition of the Parties......43
LIST OF SCHEDULES
Schedule A Description of Properties
Schedule B Form of Lease
Schedule C Form of Memorandum of Lease
Schedule D Form of Operating Agreement
Schedule E-1 Description of Little Rock, AR Property
Schedule ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ Property
Schedule E-3 Description of Hoffman Estates, IL Property
Schedule E-4 Description of Plymouth, MA Property
Schedule E-5 Description of Willoughby, OH Property
Schedule E-6 Description of Tulsa, OK Property
Schedule F Form of Owner Agreement
Schedule G Permitted Encumbrances
Schedule H Form of Pooling Agreement
Schedule I Allocation of Purchase Price
Schedule J Title Commitments
Schedule K Surveys
Schedule L Environmental Reports
Schedule M Venture Organizational Chart
Schedule N Special Warranty Deed
Schedule O Form of Assignment of Contracts
Schedule P Form of Assignment of Intangible Property
Schedule Q Form of Assignment of Purchase Contract to Applicable
Property Transferee
Schedule R Form of Warranty ▇▇▇▇ of Sale
Schedule S Form of Substitute Architect's Certificate
Schedule T Form of Substitute Engineer's Certificate
Schedule U Intentionally omitted
Schedule V FF& E Schedule
Schedule W Form of Transition Period Sublease
Schedule X Description of Motor Vehicles
Schedule Y Form of Termination of the Orland Park Lease
Schedule Z Litigation Matters
Schedule AA Form of Termination of Orland Park Memorandum of Lease
Schedule BB Form of Termination of the Orland Park Rent Guaranty
Schedule CC Form of Termination of the Orland Park Membership Interest
Pledge
Schedule DD Form of Termination of Orland Park Operating Agreement
Schedule EE Form of Termination of Orland Park Memorandum of Operating
Agreement
Schedule FF Form of Termination of Orland Park Owner Agreement
Schedule GG Form of Termination of Orland Park CNL Guaranty
Schedule HH Form of New Orland Park Rent Guaranty
Schedule II Form of CNL Guaranty
Schedule JJ Purchaser's Title and Survey Objections
Schedule KK Purchaser's Environmental Report Objections
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of December ___,
2002 (the "Effective Date"), by and among (i) MARRIOTT SENIOR LIVING SERVICES,
INC., a Delaware corporation ("MSLS"), MSLS-MAPLERIDGE, INC., a Delaware
corporation ("MSLS-MR") (with MSLS and MSLS-MR being together referred to as
"Sellers"), (ii) CNL RETIREMENT MA2, LP, a Delaware limited partnership, or
assigns ("Purchaser"), (iii) CNL Retirement Partners, LP, a Delaware limited
partnership ("CNL RP" or "Orland Park Owner"), (iv) MARRIOTT INTERNATIONAL,
INC., a Delaware corporation ("MI"), and (v) EIGHT PACK MANAGEMENT CORP., a
Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, the Sellers (this and other capitalized terms used and not
otherwise defined herein having the meanings ascribed to such terms in Section
1) are the owners of the six (6) assisted living/senior living facilities more
particularly described on Schedule A attached hereto and by this reference made
a part hereof (each a "Property" and together, the "Properties"); and
WHEREAS, Purchaser is a limited partnership (the "Master LP") in which
CNL RP or its Affiliates own a 1.0% general partnership interest and a 99%
limited partnership interest, respectively, which Master LP and its Affiliates
own a 100% interest in each of six (6) separate limited partnerships (each a
"Property Transferee") that will each purchase one or more of the Properties and
thereby acquire all of the Sellers' right, title and interest in and to the
Properties, with each Property Transferee entering into a lease with the Tenant
with respect to each of the six (6) Properties and with the Tenant entering into
six (6) separate Operating Agreements with MSLS pursuant to which each of the
Properties will be managed and operated by MSLS, all pursuant to the terms and
conditions hereinafter set forth; and
WHEREAS, the Sellers desire to sell to the Property Transferees the
Properties and thereby convey all right, title and interest in the Properties,
upon the terms and conditions hereinafter set forth;
WHEREAS, Tenant desires to lease the Properties from the Property
Transferees and to contract with MSLS for the management and operation of each
of the Properties;
WHEREAS, MI and the Orland Park Owner desire to terminate the Orland
Park Lease and for Tenant to lease the Orland Park Property from the Orland Park
Owner and to contract with MSLS for the management and operation of the Orland
Park Property;
WHEREAS, MI and the Orland Park Owner desire to terminate the Orland
Park Rent Guaranty and MSLS and Orland Park Owner desire to enter into the New
Orland Park Rent Guaranty so that MSLS would become the guarantor of certain
rent payments under the new lease between Tenant and the Orland Park Owner;
WHEREAS, MSLS and Orland Park Owner desire to terminate the Orland Park
Membership Interest Pledge Agreement;
WHEREAS, BG Orland Park and MSLS desire to terminate the Orland Park
Operating Agreement;
WHEREAS, MSLS, BG Orland Park and Orland Park Owner desire to terminate
the Orland Park Owner Agreement; and
WHEREAS, Orland Park Owner, CNL Retirement Properties, Inc. (formerly
CNL Health Care Properties, Inc.), BG Orland Park and MI desire to terminate the
Orland Park CNL Guaranty.
WHEREAS, CNL RP desires to purchase a twenty-three and one quarter
percent (23.25%) limited partnership interest in CNL Retirement MA1, LP, a
Delaware limited partnership ("MA1") from MSLS pursuant to that certain Purchase
Agreement Regarding Limited Partnership Interest in CNL Retirement MA1, LP by
and between MSLS and CNL RP (the "Five-Pack Unwind Agreement");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Sellers, Tenant, MI, the
Orland Park Owner and Purchaser hereby agree as follows:
SECTION 1.........DEFINITIONS.
Capitalized terms used in this Agreement and not defined elsewhere
herein shall have the meanings set forth below, in the Section of this Agreement
referred to below, or in such other document or agreement referred to below:
1.1 "Act of Bankruptcy" shall mean: (i) if a party hereto or any
general partner thereof or Tenant shall (a) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or all of or a substantial part of its property; (b)
admit in writing its inability to pay its debts as they become due; (c) make a
general assignment for the benefit of its creditors; (d) file a voluntary
petition or commence a voluntary case or proceeding under the Federal Bankruptcy
Code (as now or hereafter in effect); (e) be adjudicated a bankrupt or
insolvent; (f) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts; (g) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in effect);
or (h) take any corporate or partnership action for the purpose of effecting any
of the foregoing; or (ii) if the proceeding or case shall be commenced, without
the application or consent of a party hereto or any general partner thereof or
Tenant in any court of competent jurisdiction seeking (1) the liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment of
debts, of such party or general partner or Tenant; (2) the appointment of a
receiver, custodian, trustee or liquidator for such party or general partner or
all or any substantial part of its assets; or (3) other similar relief under any
law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed; or (iii) an order (including an order for relief entered in an
involuntary case under the Federal Bankruptcy Code, as now or hereinafter in
effect), judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of sixty (60)
consecutive days.
1.2 "Affiliate" shall mean any Person owned by, under common control
with or controlled, directly or indirectly, by another Person. For the purposes
of this Agreement, an "Affiliate" shall also mean and include a parent Entity,
or the Person which controls (directly or indirectly) another Person. The plural
of Affiliate is "Affiliates".
1.3 "Agreement" shall mean this Purchase and Sale Agreement, together
with Schedules A through KK thereto, as it and they may be amended from time to
time as herein provided.
1.4 "Applicable Property Transferee" shall mean, with respect to each
Property, the Property Transferee that acquires title to such Property at the
Closing. The Applicable Property Transferee for each Property shall be as
follows: (i) the Applicable Property Transferee with respect to the Arkansas
Property shall be CNL Retirement MA2 Arkansas, LP, a Delaware limited
partnership; (ii) the Applicable Property Transferee with respect to the
California Property shall be CNL Retirement MA2 California, LP, a Delaware
limited partnership; (iii) the Applicable Property Transferee with respect to
the Illinois Property shall be CNL Retirement MA2 Illinois, LP, a Delaware
limited partnership; (iv) the Applicable Property Transferee with respect to the
Massachusetts Property shall be CNL Retirement MA2 Massachusetts, LP, a Delaware
limited partnership; (v) the Applicable Property Transferee with respect to the
Ohio Property shall be CNL Retirement MA2 Ohio, LP, a Delaware limited
partnership, and (vi) the Applicable Property Transferee with respect to the
Oklahoma Property shall be CNL Retirement MA2 Oklahoma, LP, a Delaware limited
partnership.
1.5 "Arkansas Property" shall mean the Property located in Little Rock,
Arkansas.
1.6 "As-Built Drawings" shall mean, with respect to each Property, the
final "as-built" plans and specifications for the Improvements located on such
Property, which are to be furnished by the Sellers to Purchaser pursuant to
Section 4.2 of this Agreement and to the Tenant pursuant to Section 4A.1 of this
Agreement.
1.7 "Assets" shall mean, with respect to each Property, all of the
FF&E, the Motor Vehicles, the Contracts and the Intangible Property,
collectively, owned as of the Closing Date by Owner in connection with or
relating to such Property, other than any Excluded Assets.
1.8 "BG Orland Park" shall mean BG Orland Park, LLC, a Delaware limited
liability company, which is an Affiliate of MI.
1.9 "Business Day" shall mean any day other than a Saturday, Sunday or
any other day on which banking institutions in the State of Maryland are
authorized by law or executive action to close.
1.10 "California Property" shall mean the Property located in Hemet,
California.
1.11 "Closing" shall have the meaning given such term in Section 3.1.
1.12 "Closing Date" shall have the meaning given such term in Section
3.1.
1.13 "CNL Guaranty" shall mean, that certain Guaranty by CNL RP in
favor of Tenant and MSLS dated as of the Closing Date in which CNL RP guarantees
all of the payment and performance obligations of the Affiliates of CNL RP with
respect to the Lease for each of the Properties and the Owner Agreement for each
of the Properties.
1.14 "Contracts" shall mean, with respect to each Property, (a)
equipment leases relating to telephone switches and voice mail benefiting the
Property and to which Owner or its Affiliates is a party, (b) motor vehicle
leases relating to motor vehicles used in the operation of the Property and to
which Owner or its Affiliates is a party and (c) any other equipment leases to
which Owner or its Affiliates is a party that benefit the Property, are
disclosed in writing to Purchaser and Tenant on or before the Closing, are
reasonably acceptable to Purchaser and Tenant and are to survive the Closing.
1.15 "Controlling Interest" shall mean: (a) as to a corporation, the
right to exercise, directly or indirectly, more than fifty percent (50%) of the
voting rights attributable to the shares of the Entity (through ownership of
such shares or by contract), and (b) as to an Entity not a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of the Entity.
1.16 "Effective Date" shall have the meaning set forth in the preamble
to this Agreement.
1.17 "Entity" shall mean any corporation, general or limited
partnership, limited liability company, partnership, stock company or
association, joint venture, company, trust, bank, trust company, land trust,
business trust, cooperative, any government or agency or political subdivision
thereof or any other entity.
1.18 "Environmental Reports" shall have the meaning given such term in
Section 2.5.
1.19 "Excluded Assets" shall mean, with respect to each Property: (i)
any right, title or interest in any name containing any of the names "Marriott,"
"Brighton Gardens," "Maple Ridge," and other marks used, or that may in the
future be used, by MI, Sellers or their Affiliates (and MSLS and MI shall have
the right to remove any such name or ▇▇▇▇ appearing on any signage or other
property pursuant to the terms of the Operating Agreement); (ii) all property
owned by the Owner or any of its Affiliates, not normally located at the
Property and used, but not exclusively, in connection with the operation of such
Property; (iii) any FAS associated with the Property; (iv) any Inventories
located at the Property; (v) all items, tangible or intangible, consisting of
Proprietary Information; (vi) computer software; (vii) all books, ledger sheets,
files and records; (viii) all contracts pertaining to the operation of the
Property other than the Contracts; and (ix) any software, manuals, brochures or
directives used by the Owner or any of its Affiliates, in the operation of the
Property.
1.20 "FAS" shall have the meaning given the term "Fixed Asset Supplies"
in the Operating Agreement.
1.21 "FF&E" shall mean, with respect to each Property, all appliances,
machinery, devices, fixtures, appurtenances, equipment, furniture, furnishings
and articles of tangible personal property of every kind and nature whatsoever
owned by the Owner or any of its Affiliates, and located in or at, or used in
connection with the ownership, operation or maintenance of, such Property, other
than motor vehicles, but in any event excluding any Excluded Assets.
1.22 "FF&E Schedule" shall have the meaning given such term in Section
4.5.
1.23 "Financing" shall mean the initial first mortgage financing for
the Properties obtained by the Applicable Property Transferees after the Closing
Date. All amounts due and payable under the Financing, together with all costs
associated therewith, shall be a Purchaser expense.
1.24 "Illinois Property" shall mean the Property located in Hoffman
Estates, Illinois.
1.25 "Improvements" shall mean, with respect to each Property, all
buildings, fixtures, walls, fences, landscaping and other structures and
improvements situated on, affixed or appurtenant to the Real Property,
including, but not limited to, all pavement, access ways, curb cuts, parking,
kitchen and support facilities, meeting and conference rooms, swimming pool
facilities, recreational amenities, office facilities, drainage system and
facilities, air ventilation and filtering systems and facilities and utility
facilities and connections for sanitary sewer, potable water, irrigation,
electricity, telephone, cable television and natural gas, if applicable, to the
extent the same form a part of such Property and all appurtenances thereto
acquired by the Applicable Property Transferee in connection with Applicable
Property Transferee's acquisition of such Property pursuant to the terms of this
Agreement.
1.26 "Intangible Property" shall mean, with respect to each Property,
all transferable or assignable (a) Permits, and (b) certificates, licenses,
warranties, guarantees and Contracts held by Owner and/or its Affiliates, other
than (x) the Excluded Assets and (y) such Permits which are to be held by, or
transferred to, the Tenant and/or Operator in order to permit the Tenant and/or
Operator, respectively, to operate such Property in accordance with the terms of
the Lease and the Operating Agreement.
1.27 "Inventories" shall have the meaning given such term in the
Operating Agreement.
1.28 "Lease" shall mean, with respect to each Property and the Orland
Park Property, the "triple net" lease agreement to be entered into at the
Closing by the Applicable Property Transferee (or, in the case of the Orland
Park Property, the Orland Park Owner) and the Tenant, substantially in the form
attached hereto as Schedule B. A memorandum of each Lease, in the form attached
hereto as Schedule C, will be entered into by the Applicable Property Transferee
(or, in the case of the Orland Park Property, the Orland Park Owner) and Tenant
and if consented to by the Applicable Property Transferee and Tenant, recorded
among the applicable public records.
1.29 "MA2 - 2003 Purchase Agreement" shall mean that certain Purchase
and Sale Agreement dated as of December __, 2002, by and among MSLS (as the
seller), MI, Eight Pack Management Corp., a Delaware corporation, as tenant, and
CNL Retirement MA2, LP, a Delaware limited partnership (as purchaser).
1.30 "MA3 - 2002 Purchase Agreement" shall mean that certain purchase
agreement dated as of the Effective Date by and among MSLS and ROCK
Lynnwood/Snohomish Partners, LP (collectively, as the sellers), MI, Eleven Pack
Management Corp., a Delaware corporation, as tenant and CNL Retirement MA3, LP,
a Delaware limited partnership (as purchaser).
1.31 "MA3 - 2003 Purchase Agreement" shall mean that certain Purchase
and Sale Agreement dated as of December __, 2002, by and among MSLS and
MSLS-MapleRidge, Inc., a Delaware corporation, (collectively, as the sellers),
MI, Eleven Pack Management Corp., a Delaware corporation, as tenant, and CNL
Retirement MA3, LP, a Delaware limited partnership (as purchaser).
1.32 "Massachusetts Property" shall mean the Property located in
Plymouth, Massachusetts.
1.33 "Motor Vehicles" shall mean those motor vehicles being sold to
Purchaser pursuant to this Agreement and described in Schedule X attached
hereto.
1.34 "New Orland Park Rent Guaranty" shall mean the Limited Rent
Guaranty dated as of the Closing Date executed by MSLS in favor of the Orland
Park Owner in which MSLS guarantees certain rent payments under the lease dated
as of the Closing Date between the Orland Park Owner and Tenant in connection
with the leasing of the Orland Park Property.
1.35 "Ohio Property" shall mean the Property located in Willoughby,
Ohio.
1.36 "Oklahoma Property" shall mean the Property located in Tulsa,
Oklahoma.
1.37 "Operating Agreement" shall mean the applicable operating
agreement to be entered into as of the Closing Date with respect to each
Property and the Orland Park Property, between Tenant and MSLS, substantially in
the form attached hereto at Schedule D.
1.38 "Operator" shall mean MSLS.
1.39 "Orland Park CNL Guaranty" shall mean the Guaranty Agreement dated
as of April 20, 2000 by and among CNL RP, CNL Retirement Properties, Inc., BG
Orland Park and MI, under which CNL RP and CNL Retirement Properties, Inc.
guarantee the obligations of CNL RP under the Orland Park Lease and the Orland
Park Owner Agreement.
1.40 "Orland Park Rent Guaranty" shall mean the Limited Rent Guaranty
dated April 20, 2000 executed by MI in favor of CNL Health Care Partners, LP
(now known as CNL Retirement Partners, LP) in which MI guaranteed certain rent
payments under the Orland Park Lease.
1.41 "Orland Park Lease" shall mean the Lease Agreement dated April 20,
2000 by and between CNL Health Care Partners, LP (now known as CNL Retirement
Partners, LP), as landlord, and BG Orland Park, as tenant.
1.42 "Orland Park Membership Interest Pledge" shall mean the Membership
Interest Pledge Agreement dated as of April 20, 2000 between MSLS, as pledgor,
and CNL Health Care Partners, LP (now known as CNL Retirement Partners, LP), as
pledgee, under which MSLS pledges its membership interest in BG Orland Park to
secure the obligations of BG Orland Park under the Orland Park Lease.
1.43 "Orland Park Operating Agreement" shall mean the Operating
Agreement dated as of April 20, 2000, between BG Orland Park and MSLS and any
amendments thereto.
1.44 "Orland Park Owner Agreement" shall mean the Owner Agreement dated
as of April 20, 2000 by and among MSLS, BG Orland Park and CNL Health Care
Partners, LP (now known as CNL Retirement Partners, LP).
1.45 "Orland Park Property" shall mean the real estate and improvements
known as the Brighton Gardens senior living facility in Orland Park, Illinois
sold to CNL Health Care Partners, LP (now known as CNL Retirement Partners, LP)
pursuant to the Purchase and Sale Agreement dated March 23, 2000 by and among
CNL Health Care Partners, LP (now known as CNL Retirement Partners, LP), as
purchaser, MSLS, as seller, and joined by MI.
1.46 "Owner" shall mean: (i) with respect to the Arkansas Property
described on Schedule E-1 attached hereto, MSLS; (ii) with respect to the
California Property located in Hemet, CA described on Schedule E-2 attached
hereto, MSLS-MR; (iii) with respect to the Illinois Property described on
Schedule E-3 attached hereto, MSLS; (iv) with respect to the Massachusetts
Property described on Schedule E-4 attached hereto, MSLS-MR; (v) with respect to
the Ohio Property described on Schedule E-5 attached hereto, MSLS-MR; and (vi)
with respect to the Oklahoma Property described on Schedule E-6 attached hereto,
MSLS.
1.47 "Owner Agreement" shall mean, with respect to each Property, the
Owner Agreement in substantially the form of Schedule F attached hereto to be
entered into as of the Closing Date by Operator, Tenant and the Applicable
Property Transferee, which shall be applicable to such Property from and after
the Closing Date and with respect to the Orland Park Property, the Owner
Agreement in substantially the form of Schedule F attached hereto to be entered
into as of the Closing Date by Operator, Tenant and Orland Park Owner, which
shall be applicable to the Orland Park Property from and after the Closing Date.
1.48 "Permits" shall mean, with respect to each Property, all
governmental permits and approvals, including licenses and authorizations,
required for the construction, ownership and operation of the assisted
living/senior living facilities within and on the Improvements, including
without limitation healthcare regulatory licenses, skilled nursing facility
licenses, residential care for the elderly licenses, assisted living licenses,
occupational licenses and/or qualifications to do business, certificates of
need, certificates of authority, 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
and other approvals granted by any public body or by any private party pursuant
to a recorded instrument relating to such Property and such assisted
living/senior living facilities.
1.49 "Permitted Encumbrances" shall mean, with respect to each
Property: (a) any and all matters affecting title to the Property as shown on
Schedule G hereto; (b) liens for taxes, assessments and governmental charges
with respect to the Property not yet due and payable or due and payable but not
yet delinquent; (c) applicable zoning regulations and ordinances and other
governmental laws, ordinances and regulations provided the same do not prohibit
or impair in any material respects the use of the Property as an assisted
living/senior living facility, as contemplated by this Agreement; (d) such other
nonmonetary encumbrances which do not, in Purchaser's reasonable opinion, impair
marketability, prohibit or impair in any material respect the use of the
Property as a fully functioning assisted living/senior living facility as
contemplated by this Agreement, or impose any additional material costs or
expenses on Tenant or Purchaser; (e) any utility, drainage or other easements
which are customary in connection with (or which reasonably serve) the
Improvements (provided that the same do not lie under any building unless the
easements are not necessary for the Property and can be vacated) and with
respect to which there are no material violations as of the Closing Date; (f)
the Lease, Memorandum of Lease and Memorandum of Operating Agreement for the
Property; (g) such other nonmonetary encumbrances with respect to the Property
which are not objected to by Purchaser in accordance with Sections 2.3 and 2.4;
and (h) such matters as are disclosed by the Surveys.
1.50 "Person" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
1.51 "Pooling Agreement" shall mean the Pooling Agreement in the form
attached hereto as Schedule H to be entered into as of the Closing Date by each
Applicable Property Transferee, the Orland Park Owner, the Tenant and the
Operator.
1.52 "Property" shall mean any of the Real Property, Improvements and
Assets, inclusive, with respect to each of the six (6) assisted living/senior
living facilities identified in Schedule A hereto, as the case may be and/or the
context shall require. For the purposes of this Agreement, the term "Properties"
shall mean and refer to all of the foregoing collectively.
1.53 "Property Transferee" shall mean each entity that acquires title
at the Closing to one of the six Properties.
1.54 "Proprietary Information" shall mean (a) all computer software and
accompanying documentation (including all future upgrades, enhancements,
additions, substitutions and modifications thereof), other than that which is
commercially available, which are used by MI, any Owner or the Operator or any
Affiliate thereof in connection with the property management system and all
future electronic systems developed by MI, any Owner or the Operator or any
Affiliate thereof for use with respect to any Property, (b) all manuals,
brochures and directives used by MI, any Owner or the Operator or any Affiliate
thereof with respect to the procedures and techniques to be used in operating
any Property, (c) customer lists, and (d) employee records which must remain
confidential either under applicable legal requirements or under reasonable
corporate policies of MI, any Owner or the Operator or any Affiliate thereof.
1.55 "Purchaser" shall mean CNL Retirement MA2, LP, a Delaware limited
partnership, and its permitted successors and assigns.
1.56 "Purchase Price" shall mean the amount to be paid by Purchaser to
Sellers for the Properties, set forth on Schedule I hereto. The Purchase Price
also shall be subject to adjustments, credits and prorations as provided herein.
1.57 "Real Property" shall mean, with respect to each Property, the
real property described in the applicable Schedules E-1 through E-6 hereto,
together with all easements, rights of way, privileges, licenses and
appurtenances which the Owner may now own or hereafter acquire with respect
thereto, less any portion or portions thereof taken by way of an Immaterial
Taking.
1.58 "Sellers" shall mean MSLS and MSLS-MR, collectively.
1.59 "Tenant" shall mean Eight Pack Management Corp., a Delaware
corporation.
1.60 "Title Commitments" shall have the meaning given such term in
Section 2.3.
1.61 "Title Company" shall mean First American Title Insurance Company
or such other title insurance company as shall have been approved by Purchaser
and the Sellers.
1.62 "Transition Period Sublease" shall have the meaning given such
term in Section 4.6.
SECTION 2.........PURCHASE-SALE AND LEASE; DILIGENCE.
2.1 Purchase-Sale and Lease. Purchaser hereby agrees to purchase from
Sellers and Sellers hereby agree to sell to Purchaser, the Properties for the
Purchase Price, subject to and in accordance with the terms and conditions of
this Agreement. Also in consideration of the mutual covenants herein contained,
upon, and subject to, acquisition by Purchaser of the Properties, Purchaser
hereby agrees to simultaneously lease to Tenant, and Tenant hereby agrees to
simultaneously lease from Purchaser, each of such Properties purchased by
Purchaser, on the terms and conditions of the Lease applicable thereto, and in
accordance with the terms of this Agreement. Also in consideration of the mutual
covenants herein contained, Sellers hereby agree to convey to either Purchaser
or Tenant, at the Purchaser's election, the existing FAS associated with the
Properties and the existing Inventories located at the Properties, on the terms
and conditions set forth herein, together with the working capital associated
with or set aside associated with the Properties at the Closing.
2.2 Diligence Inspections.
(a) Except as otherwise expressly provided to the contrary in this
Agreement, Purchaser and Tenant have approved (or are deemed to have approved
for purposes of this Agreement) the Properties in each of its "AS IS, WHERE IS"
condition as of the Effective Date.
(b) Purchaser and Tenant have approved (or shall be deemed to have
approved for purposes of this Agreement) each Property in its "as is, where is"
condition as of the Effective Date and as of the Closing Date, subject to the
representations, warranties, terms and conditions of this Agreement. Prior to
the Closing, and on the terms and conditions set forth below, Purchaser and
Tenant shall have the right to inspect the Properties and investigate the
conditions of the Properties, including without limitation, the environmental,
geotechnical, physical, market and economic conditions thereof. To the extent
that, in connection with such investigations, the Purchaser, the Tenant, or
their agents, representatives or contractors, damages or disturbs any of the
Properties, the Purchaser or Tenant, as the case may be, shall return the same
to substantially the same condition which existed immediately prior to such
damage or disturbance. The Purchaser and Tenant each shall indemnify, defend and
hold harmless the Sellers from and against any and all expense, loss or damage
(including, without limitation, reasonable attorneys' fees) which the Sellers
may incur as a result of any act or omission of the Purchaser or Tenant,
respectively, as the case may be, or its representatives, agents or contractors
in connection with any such inspections and investigations, other than any
expense, loss or damage arising from any act or omission of the Sellers. The
foregoing indemnification agreement shall, with respect to each Property,
survive the termination of this Agreement or the Closing hereunder for a period
of twelve (12) months.
2.3 Title Matters.
(a) Prior to the date hereof, Purchaser has obtained a current
title commitment for an ALTA extended owner's policy and ALTA leasehold policy
of title insurance with respect to each Property, together with complete and
legible copies of all instruments and documents referred to as exceptions to
title (collectively, the "Title Commitments"), and has given each Owner notice
of all title exceptions to which the Purchaser objects, which notice is more
particularly described on Schedule JJ attached hereto and by this reference
incorporated herein. If, for any reason, the Owner is unable or unwilling to
take such actions as may be required to cause such exceptions to be removed from
the Title Commitments, the Owner shall give the Purchaser notice thereof; it
being understood and agreed that the failure of the Owner to give such notice
within five (5) days after the Effective Date shall be deemed an election by the
Owner not to remedy such matters. If the Owner shall be unwilling or unable to
remove any title defects to which the Purchaser has objected, the Purchaser may
elect (i) to terminate this Agreement, in which event this Agreement shall be of
no further force and effect, except with respect to provisions hereof which by
their express terms survive a termination of this Agreement and each party to
this Agreement shall pay for its own out of pocket expenses incurred in respect
of the Properties, or (ii) to consummate the transactions contemplated hereby,
notwithstanding such title defect(s), without any abatement or reduction in the
Purchase Price on account thereof. The Purchaser shall make any such election by
written notice to the Sellers given on or prior to the fifth (5th) day after the
Owner's notice of its inability or unwillingness to cure such defect. Failure of
the Purchaser to give such notice of its election in accordance with clause (i)
above shall be deemed an election by the Purchaser to proceed in accordance with
clause (ii) above. Notwithstanding the foregoing, each Owner shall cause all
mortgages, deeds of trust and other monetary liens encumbering its Property to
be released at or prior to the Closing; provided, however, such liens may
continue to encumber the Property at Closing if the Title Company is willing to
insure over such liens in a manner acceptable to Purchaser and such liens are
released promptly following the Closing. Owner's obligation to cause the release
of any such liens pursuant to the immediately preceding sentence shall survive
Closing. Upon completion of the procedures set forth in this paragraph for
resolving objections to matters concerning title, endorsements to the Title
Commitments shall be issued by the Title Company in substance consistent with
the provisions of this paragraph.
(b) In the event that an Owner decides to encumber its Property
with an additional title matter, such Owner shall give Purchaser and Tenant
notice thereof together with a copy of the document, instrument or other matter
to be imposed against or on the Property ("Additional Exception"). Within five
(5) Business Days after receipt of a notice (and a copy) of any Additional
Exception with respect to any Property, the Purchaser and/or Tenant shall give
the Owner notice of its approval or disapproval thereof. Neither Purchaser nor
Tenant shall withhold its approval of any such Additional Exception which would
be a Permitted Encumbrance specified in clauses (a) through (h), inclusive of
the definition of Permitted Encumbrance, and neither shall unreasonably
withhold, delay or condition its approval of any other Additional Exception. If
Purchaser and/or Tenant fails to respond within said five (5) Business Day
period, Purchaser and/or Tenant, as the case may be, shall be deemed to have
approved such Additional Exception. If Purchaser and/or Tenant unreasonably
disapproves of any Additional Exception, Owner shall be excused from performing
any term or condition (or any portion or aspect of a term or condition) of this
Agreement which Owner is unable or unwilling to perform as a result of its
inability to enter into and/or impose such Additional Exception. Notwithstanding
anything herein to the contrary, an Additional Exception shall not include any
monetary encumbrance, Owner shall discharge all such encumbrances on or before
the Closing Date. No consent or approval to any Additional Exception by
Purchaser or Tenant shall constitute an agreement by Purchaser or Tenant to pay
any special assessment or other tax or levy arising under such Additional
Exception that would otherwise be payable by the Sellers under this Agreement.
2.4 Survey. Prior to the date hereof, Purchaser has obtained current
as-built ALTA surveys with respect to each Property (individually, a "Survey"
and collectively, the "Surveys"), by a licensed surveyor in the jurisdiction in
which each such Property is located and has given each Owner notice of all
matters shown thereon (other than Permitted Encumbrances) to which the Purchaser
objects, which notice is more particularly described on Schedule JJ attached
hereto and by this reference incorporated herein. If, for any reason, any Owner
is unable or unwilling to take such actions as may be required to remedy the
objectionable matters, the Owner shall give the Purchaser prompt notice thereof;
it being understood and agreed that the failure of the Owner to give such notice
within five (5) days after the Effective Date shall be deemed an election by the
Owner not to remedy such matters. If the Owner shall be unable or unwilling to
remove any survey defect to which the Purchaser and has objected, the Purchaser
may elect (i) to terminate this Agreement, in which event this Agreement shall
terminate and be of no further force or effect, except with respect to
provisions hereof which by their express terms survive a termination of this
Agreement and each party to this Agreement shall pay for its own out of pocket
expenses incurred in respect of the Properties, or (ii) to consummate the
transactions contemplated hereby, notwithstanding such defect, without any
abatement or reduction in the Purchase Price on account thereof. The Purchaser
shall make any such election by written notice to the Sellers given on or prior
to the fifth (5th) day after the Owner's notice of its inability or
unwillingness to cure such defect and time shall be of the essence with respect
to the giving of such notice. Failure of the Purchaser to give such notice of
its election in accordance with clause (i) above shall be deemed an election the
Purchaser to proceed in accordance with clause (ii) above.
2.5 Environmental Reports. Prior to the date hereof, Purchaser has
obtained Phase I environmental reports in respect of the Properties as more
particularly described on Schedule L attached hereto (collectively,
"Environmental Reports") and has given each Owner notice of all matters therein
as to which the Purchaser objects, which notice is more particularly described
on Schedule KK attached hereto and by this reference incorporated herein. If,
for any reason, the Owner is unable or unwilling to take such actions as may be
required to cause such matters to be remedied to the reasonable satisfaction of
the Purchaser, as the case may be, the Owner shall give the Purchaser notice
thereof, it being understood and agreed that the failure of the Owner to give
such notice within five (5) days after the Effective Date shall be deemed an
election by the Owner not to remedy such matters. If the Owner shall be
unwilling or unable to remedy any matters to which the Purchaser has objected,
the Purchaser may elect (i) to terminate this Agreement, in which event this
Agreement shall be of no further force and effect, except with respect to
provisions hereof which by their express terms survive a termination of this
Agreement and each party to this Agreement shall pay for its own out of pocket
expenses incurred in respect of the Properties, or (ii) to consummate the
transactions contemplated hereby, notwithstanding such defect, without any
abatement or reduction in the Purchase Price on account thereof. The Purchaser
shall make any such election by written notice to the Sellers given on or prior
to the fifth (5th) day after the Owner's notice of its inability or
unwillingness to cure such defect. Failure of the Purchaser to give such notice
within the time prescribed by the preceding sentence shall be deemed an election
by the Purchaser to proceed in accordance with clause (ii) above.
2.6 Taking and Casualty. (a) If prior to Closing, any Property is the
subject of a condemnation, the Owner shall promptly notify Purchaser and Tenant
of the same. If such condemnation does not, in Owner's reasonable opinion,
affect any material part of the Improvements and does not materially adversely
affect access to the Improvements or compliance with applicable zoning or
building requirements, including parking or the projected net cash flow from the
Property (an "Immaterial Taking"), Owner shall so notify Purchaser and Tenant
and this Agreement will remain in full force and effect in respect of the
purchase and sale of such Property, but with an abatement of the Purchase Price
equal to the amount of the award paid to Owner on account of such taking, less
the amount of Owner's costs and expenses, including reasonable attorneys' fees
and expenses, in establishing and collecting such award. If such condemnation is
not an Immaterial Taking, then either Purchaser or Tenant shall have the right
to terminate this Agreement with respect to the Property subject to such
condemnation (the "Condemned Property") by providing written notice of such
termination to Sellers within ten (10) days of receipt of Owner's notice
advising Purchaser and Tenant of such condemnation, in which event this
Agreement shall be of no further force and effect with respect to the Condemned
Property except with respect to provisions hereof which by their express terms
survive a termination of this Agreement. The Purchase Price shall be reduced by
the amount of the Purchase Price allocated to the Condemned Property as set
forth on Schedule I hereto.
(b) If prior to the Closing, any Property is damaged or destroyed
by fire or other casualty (the "Damaged Property"), Owner shall promptly notify
Purchaser and Tenant of the same (the "Casualty Notice"). If the cost of
restoring the damage is, in the reasonable judgment of Owner, Two Million
Dollars ($2,000,000) or greater, Owner shall provide in the Casualty Notice
whether it is exercising its option to terminate this Agreement with respect to
the Damaged Property, in which event, this Agreement with respect to the Damaged
Property shall be of no further force or effect except with respect to
provisions hereof which by their express terms survive a termination of this
Agreement. The Purchase Price shall be reduced by the amount of the Purchase
Price allocated to the Damaged Property as set forth on Schedule I hereto. If
the cost of restoring the damage is, in the reasonable judgment of Owner, Two
Million Dollars ($2,000,000) or greater and Owner did not exercise its option to
terminate this Agreement with respect to the Damaged Property in the Casualty
Notice, Purchaser and Tenant each shall have the right, upon notice to the other
parties in writing within ten (10) days of receipt of the Casualty Notice, to
terminate this Agreement with respect to the Damaged Property, in which event,
this Agreement with respect to the Damaged Property shall be of no further force
or effect except with respect to provisions hereof which by their express terms
survive a termination of this Agreement with respect to the Damaged Property.
The Purchase Price shall be reduced by the amount of the Purchase Price
allocated to the Damaged Property as set forth on Schedule I hereto.
(c) If none of Owner, Purchaser or Tenant elects to terminate this
Agreement with respect to the Damaged Property pursuant to Section 2.6(b), or if
the cost of restoring the damage is, in the reasonable judgment of Owner, less
than Two Million Dollars ($2,000,000), then Owner shall undertake and pursue the
restoration of such damage in a commercially reasonable fashion, and shall
repair and/or replace the damaged portion of the Damaged Property to the same
condition as existed immediately prior to such casualty. The Closing as it
relates to the Damaged Property shall be extended for such period of time as may
be reasonably necessary or appropriate to permit Owner to complete such
restoration. The parties agree that Owner's obligations to repair and/or replace
pursuant to the provisions of this Section shall be limited to the extent of
available casualty insurance proceeds (plus the amount of any applicable
deductibles) and if casualty insurance proceeds are insufficient to repair
and/or replace the damaged portion of the Damaged Property to the same condition
as existed immediately prior to such casualty and Owner is unable or unwilling
to make such repairs or replacements, Owner shall promptly notify Purchaser and
Tenant that it is exercising its right to terminate this Agreement with respect
to the Damaged Property, in which event, this Agreement with respect to the
Damaged Property shall be of no further force or effect except with respect to
provisions hereof which by their express terms survive a termination of this
Agreement. The Purchase Price shall be reduced by the amount of the Purchase
Price allocated to the Damaged Property as set forth on Schedule I hereto.
(d) The risk of loss to each Property shall remain with Owner
until the Closing.
SECTION 3.........PURCHASE AND SALE.
3.1 Closing. The purchase, sale and lease of the Properties and other
transactions contemplated hereby shall be consummated on a date (the "Closing
Date") which is mutually agreeable to all of the parties but no later than
December 31, 2002 (the "Closing"). The Closing shall be held in escrow with the
Title Company at the offices of Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other location as the
Sellers and the Purchaser and the Tenant may agree.
3.2 Purchase Price. At the Closing, the Purchase Price shall be payable
by Purchaser by wire transfer of immediately available funds on the Closing Date
to an account or accounts to be designated by Sellers prior to the Closing,
subject to any adjustments and apportionments made pursuant to this Agreement.
SECTION 4.........CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.
The obligation of Purchaser to acquire the Properties on the Closing
Date shall be subject to the satisfaction or waiver of the following conditions
precedent on and as of the Closing Date:
4.1 Property Transferees. For the purposes of effectuating the
transactions contemplated by this Agreement, on or before the Closing Date,
Purchaser or its Affiliates shall form each of the Property Transferees. With
respect to the actual acquisition and fee simple ownership of each Property,
each Property will be acquired and owned at the Closing by the Applicable
Property Transferee. Each Property Transferee will be the landlord under the
applicable Lease. The organizational chart for the limited partnerships
described in this Section 4.1 is attached hereto as Schedule M. On and as of the
Closing Date, the limited partnerships described in this Section 4.1 shall have
been created and be in full force and effect. The Sellers hereby acknowledge and
agree that the Purchaser shall have the right to assign this Agreement with
respect to each Property to the Applicable Property Transferee as may be
necessary in order to effectuate the intent of this Section 4.1.
4.2 Closing Documents. Sellers, MI, the Operator, or their respective
Affiliates and/or the Tenant, as applicable, shall have delivered (or cause to
be delivered) to Purchaser, with respect to each Property and to the Orland Park
Owner with respect to the documents set forth in Section 4.2(d) for the Orland
Park Property:
(a) A Special Warranty Deed, and in the case of the California
Property, a Grant Deed, duly executed by the Owner, conveying to the Applicable
Property Transferee good and marketable title to such Property, free from all
liens, encumbrances, security interests, options and adverse claims of any kind
or character, subject to the Permitted Encumbrances, in the forms set forth in
Schedule N attached hereto;
(b) An Assignment of Contracts (including any construction related
contracts) in the form set forth in Schedule O hereto, an Assignment of
Intangible Property in the form set forth in Schedule P hereto, each duly
executed by the Owner (or its Affiliate, as applicable), transferring and
assigning to the Applicable Property Transferee all rights, title and interest
of Owner (or its Affiliate, as applicable) in the Assets (other than any
existing FAS, any existing FF&E or any existing Inventories) related to such
Property, together with, to the extent the same are in Owner's or its
Affiliate's (or their agent's) possession, original (or copies certified by
Owner as true and correct), fully executed copies of all agreements constituting
any of the same;
(c) A Warranty ▇▇▇▇ of Sale in the form set forth in Schedule R
hereto, duly executed by Owner, transferring to the Applicable Property
Transferee all rights, title and interest of Owner in any existing FAS
associated with such Property, any FF&E associated with such Property and any
existing Inventories located at such Property;
(d) (i) A copy of the Termination of the Orland Park Lease in the
form set forth in Schedule Y attached hereto dated as of the Closing Date and
duly executed by Orland Park Owner and BG Orland Park; (ii) a copy of the
Termination of Orland Park Memorandum of Lease in the form set forth in Schedule
AA attached hereto dated as of the Closing Date and duly executed by Orland Park
Owner and BG Orland Park; (iii) a copy of the Termination of the Orland Park
Rent Guaranty in the form set forth in Schedule BB attached hereto dated as of
the Closing Date and duly executed by MI and Orland Park Owner; (iv) a copy of
the Termination of the Orland Park Membership Interest Pledge in the form set
forth in Schedule CC attached hereto dated as of the Closing Date and duly
executed by MSLS and Orland Park Owner; (v) a copy of the Termination of Orland
Park Operating Agreement in the form set forth in Schedule DD attached hereto
dated as of the Closing Date and duly executed by BG Orland Park and MSLS; (vi)
a copy of the Termination of Orland Park Memorandum of Operating Agreement in
the form set forth in Schedule EE attached hereto dated as of the Closing Date
and duly executed by BG Orland Park and MSLS; (vii) a copy of the Termination of
Orland Park Owner Agreement in the form set forth in Schedule FF attached hereto
dated as of the Closing Date and duly executed by MSLS, BG Orland Park and
Orland Park Owner; (viii) a copy of the Termination of Orland Park CNL Guaranty
in the form set forth in Schedule GG attached hereto dated as of the Closing
Date duly executed by Orland Park Owner, CNL Retirement Properties, Inc., BG
Orland Park and MI; (ix) copies of UCC termination statements (A) to be filed
with the Department of Assessments and Taxation of the State of Maryland to
terminate the UCC financing statement filed against BG Orland Park as debtor and
in favor of Orland Park Owner as secured party, (B) to be filed with the
Department of Assessments and Taxation of the State of Maryland to terminate the
UCC financing statement filed against MSLS as debtor and in favor of Orland Park
Owner as secured party, and (C) to be filed with the Secretary of State of the
State of Delaware against MSLS as debtor and in favor of Orland Park Owner as
secured party; (x) a letter duly executed by an authorized officer of Orland
Park Owner authorizing Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC to file such
termination statements; and (xi) a copy of the New Orland Park Rent Guaranty
duly executed by MSLS in favor of the Orland Park Owner, in the form set forth
in Schedule HH attached hereto;
(e) A copy of the Operating Agreement for such Property and for
the Orland Park Property duly executed by the Operator and the Tenant and a
Memorandum of Operating Agreement for such Property and for the Orland Park
Property in recordable form duly executed by the Operator and the Tenant;
(f) The Lease for such Property duly executed by the Tenant and
the Applicable Property Transferee and a Memorandum of Lease for such Property
in recordable form and the Lease for the Orland Park Property duly executed by
the Tenant and the Orland Park Owner and a Memorandum of Lease for the Orland
Park Property in recordable form;
(g) The Owner Agreement for such Property duly executed by the
Operator, the Applicable Property Transferee and the Tenant and the Owner
Agreement for the Orland Park Property duly executed by the Operator, the Orland
Park Owner and the Tenant;
(h) [Intentionally Omitted]
(i) A Substitute Architect's Certificate in respect of the
Improvements to such Property in the form attached hereto as Schedule S;
(j) A Substitute Engineer's Certificate in respect of the
Improvements to such Property in the form attached hereto as Schedule T;
(k) Certified copies of applicable resolutions and certificates of
incumbency with respect to Owner, MI, MSLS, the Tenant and such other Persons as
Purchaser may reasonably require;
(l) A certificate of a duly authorized officer of each of MI and
Tenant confirming the continued truth and accuracy of its representations and
warranties in this Agreement (subject to such changes as Owner has given notice
of to Purchaser pursuant to Section 6 and subject to Section 4.3(b));
(m) The "As-Built" Drawings and an original (or if not available,
a copy) of the final certificate of occupancy for such Property;
(n) Copies of the Permits (certified by Owner as true and
correct);
(o) Copies of the Contracts (certified by Owner as true and
correct);
(p) The original (or if not available, copies) of any and all
warranties and guarantees pertaining to the Improvements, specifically including
the manufacturer's roof membrane warranty issued with respect to the buildings
comprising the Improvements;
(q) The FF&E Schedule;
(r) An owner's affidavit executed by Owner in the form mutually
agreeable to Owner and Title Company for the purpose of satisfying any request
for the same in the applicable Title Commitments;
(s) A settlement statement;
(t) The Pooling Agreement executed by MSLS, the Applicable
Property Transferee, the Orland Park Owner and the Tenant;
(u) The Transition Period Sublease for such Property executed by
MSLS or MSLS-MR, as the case may be, if applicable pursuant to Section
4.6(Permit Transfers);
(v) Assignments of Purchase Contract by Purchaser to each of the
Applicable Property Transferees as it relates to the applicable Property in the
form of Schedule Q;
(w) With respect to the California Property, California Form 597-W
as required by California Revenue and Taxation Code Section 18662; and
(x) Such other documents, certificates and other instruments as
may be reasonably required to consummate the transaction contemplated hereby.
4.3 Condition of Properties.
(a) No action shall be pending or threatened for the condemnation
or taking by power of eminent domain of all or any material portion of any
Property.
(b) All material and applicable Permits and other authorizations
necessary for the current use, occupancy and operation of the Properties shall
be in full force and effect; however, in the event that any Owner fails to
obtain any such Permits or other authorizations and discloses same to Purchaser,
Purchaser may, but shall not be required to, waive such Owner's compliance with
Section 6.11 (Permits, Licenses) of this Agreement and proceed with the Closing.
4.4 Title Policies and Surveys.
(a) The Title Company shall be prepared, subject only to payment
of the applicable premium and delivery of all conveyance documents, to issue the
title policies pursuant to the Title Commitments.
(b) Purchaser shall have received the Surveys in accordance with
Section 2.4.
4.5 FF&E Schedule. Attached hereto as Schedule V is a schedule (the
"FF&E Schedule") of all FF&E at each Property owned by each Owner and which FF&E
is intended to be part of the Assets to be transferred to and owned by the
Applicable Property Transferees upon and following the Closing. Upon reasonable
prior notice to each Owner, Purchaser shall be entitled to inspect the FF&E at
the applicable Property prior to the Closing in order to confirm and verify the
FF&E Schedule.
4.6 Permit Transfers. To the extent permitted or required by applicable
laws, rules and regulations, Sellers shall have completed the transfer and
assignment of all of the Permits to the Applicable Property Transferee and/or
the Tenant of each Property at or prior to the Closing. To the extent that any
such Permits are not transferable or assignable, Sellers shall cooperate with
Applicable Property Transferee and/or the Tenant in obtaining such Permits at or
prior to Closing. If any of the Permits cannot be transferred or assigned by the
Sellers or obtained by the Applicable Property Transferee and/or the Tenant,
whichever is applicable, at or prior to the Closing, alternative arrangements
that are satisfactory to Purchaser, Tenant and Sellers shall have been
implemented to assure that the Applicable Property Transferee and/or the Tenant
shall, to the extent permitted by applicable laws, rules and regulations, have
the benefit of such Permits, and Sellers, the Applicable Property Transferee
and/or the Tenant shall, at the expense of the Applicable Property Transferee,
cooperate and use their respective commercially reasonable efforts to obtain a
Permit for the Applicable Property Transferee and/or the Tenant or complete the
transfer and assignment of the Permits by Sellers, whichever is applicable, as
contemplated in the foregoing sentences promptly after the Closing. For example,
but not by way of limitation, in the event the required assisted living/senior
living facilities and/or skilled nursing facilities licenses or permits have not
been transferred, issued or re-issued as of the Closing Date with respect to a
Property, as required by applicable law and regulations, the Operator, the
Tenant and the Applicable Property Transferee shall enter into a sublease of the
Lease, in the form attached hereto as Schedule W (the "Transition Period
Sublease"), so that the facility located on such Property may continue to be
operated on and after the Closing Date pending the transfer, issuance or
re-issuance of such required licenses or permits. This Section 4.6 shall survive
the Closing for a period of twelve (12) months.
4.7 Other.
(a) The representations and warranties of MI and Tenant set forth
in Section 6 and Section 6A hereof (as the same may have been changed by notice
from Sellers as provided therein) shall be true, correct and complete in all
material respects on and as of the Closing Date;
(b) No Act of Bankruptcy on the part of any Owner, MI, MSLS or
Tenant shall have occurred and remain outstanding as of the Closing Date;
(c) Each Owner shall be the sole owner of good and marketable
title to its Property free and clear of all liens, encumbrances, restrictions,
conditions and agreements (other than the Permitted Encumbrances and this
Agreement);
(d) There shall be no unsatisfied state or Federal tax liens
against or affecting any Owner which is due and payable, or any tax audit of
such Owner in process, which could result in a lien against any Property; and
(e) There shall be no outstanding, unsettled claim against any
Owner arising under any insurance policies in respect of such Owner or its
Property which could result in a lien against the Property.
4.8 Five-Pack Unwind. Simultaneously or prior to the Closing
contemplated by this Agreement, the closing contemplated by the Five Pack Unwind
Agreement shall have been consummated.
4.9 MA2 - 2003 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the MA2 - 2003 Purchase Agreement shall
have been executed by all of the parties thereto; provided however, that the
failure of the parties to enter into such a purchase agreement shall not be
deemed as an event of default under this Agreement.
4.10 MA3 - 2002 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the closing contemplated by the MA3
Purchase Agreement shall have been consummated.
4.11 MA3 - 2003 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the MA3 - 2003 Purchase Agreement shall
have been executed by all of the parties thereto; provided however, that the
failure of the parties to enter into such a purchase agreement shall not be
deemed as an event of default under this Agreement.
SECTION 4A. CONDITIONS TO TENANT'S OBLIGATION TO CLOSE.
The obligation of the Tenant to lease each of the Properties on the Closing Date
shall be subject to the satisfaction or waiver of the following conditions
precedent on and as of such Closing Date:
4A.1.....Closing Documents. The Sellers, MI, the Operator, Purchaser,
the Applicable Party Transferee, or the Orland Park Owner, as applicable, shall
have delivered (or cause to be delivered) to the Tenant with respect to each
Property:
(a) The Lease for such Property duly executed by the Applicable
Property Transferee and a Memorandum of Lease for such Property in recordable
form duly executed by the Applicable Property Transferee and the Lease for the
Orland Park Property duly executed by the Orland Park Owner and a Memorandum of
Lease for the Orland Park Property duly executed by the Orland Park Owner in
recordable form;
(b) Duly executed and acknowledged counterparts of the documents
described in subsection 4.2(d);
(c) The Operating Agreement for such Property and for the Orland
Park Property duly executed by MSLS and a Memorandum of Operating Agreement for
such Property and for the Orland Park Property in recordable form duly executed
by MSLS;
(d) The Pooling Agreement duly executed by the Applicable Property
Transferee, the Orland Park Owner and Operator;
(e) the CNL Guaranty duly executed by CNL RP in the form set forth
in Schedule II attached hereto;
(f) A Substitute Architect's Certificate in respect of the
Improvements to such Property in the form attached hereto as Schedule S;
(g) A Substitute Engineer's Certificate in respect of the
Improvements to such Property in the form attached hereto as Schedule T;
(h) Certified copies of applicable resolutions and certificates of
incumbency with respect to the Sellers, MI, Purchaser and other Persons as the
Tenant may reasonably require;
(i) A certificate of a duly authorized officer of each of MI and
Purchaser confirming the continued truth and accuracy of its representations and
warranties in this Agreement (subject to such changes as Sellers have given
notice of to Tenant pursuant to Section 6 and subject to Section 4A.2(b));
(j) The Surveys;
(k) The "As-Built" Drawings and A copy of the final certificate of
occupancy for such Property;
(l) The Permits (or copies thereof certified by Sellers as true
and correct);
(m) The Contracts (or copies thereof certified by Sellers as true
and correct);
(n) Copies of any and all warranties and guarantees pertaining to
the Improvements, specifically including the manufacturer's roof membrane
warranty issued with respect to the buildings comprising the Improvements;
(o) The FF&E Schedule;
(p) An owner's affidavit executed by Sellers in the form of
Schedule U for purposes of satisfying any request for the same in the applicable
Title Commitment;
(q) A settlement statement;
(r) The Transition Period Sublease for such Property executed by
MSLS or MSLS-MR, as the case may be, if applicable pursuant to Section 4.6;
(s) Assignments of Purchase Contract to each of the Applicable
Property Transferees as it relates to the applicable Property in the form of
Schedule Q;
(t) The Owner Agreement for such Property duly executed by the
Operator, the Applicable Property Transferee and the Tenant and the Owner
Agreement for the Orland Park Property duly executed by the Operator, the Orland
Park Owner and the Tenant;
(u) A Warranty ▇▇▇▇ of Sale in the form set forth in Schedule R
hereto, duly executed by Owner, transferring to the Applicable Property
Transferee all rights, title and interest of Owner in any existing FAS
associated with such Property, any FF&E associated with such Property and any
existing Inventories located at such Property;
(v) Such other documents, certificates and other instruments as
may be reasonably required to consummate the transaction contemplated hereby.
4A.2.....Condition of Properties.
(a) No action shall be pending or threatened for the condemnation
of taking by power of eminent domain of all or any material portion of any
Property.
(b) All material and applicable Permits and other authorization
necessary for the current use, occupancy and operation of the Properties shall
be in full force and effect; however, in the event that any Owner fails to
obtain any such Permits or other authorizations and discloses same to Tenant,
Tenant may, but shall not be required to, waive Owner's compliance with Section
6.11 (Permits, Licenses) of this Agreement and proceed with the Closing .
4A.3.....Title Policies and Surveys.
(a) The Title Company shall be prepared, subject only to payment
of the applicable premium and delivery of all conveyance documents, to issue the
title policies pursuant to the Title Commitments.
(b) The Tenant shall have received the Surveys in accordance with
Section 2.4. -----------
4A.4.....FF&E Schedule. Upon reasonable prior notice to Sellers, Tenant
shall be entitled to inspect the FF&E at the Property prior to the Closing in
order to confirm and verify the FF&E Schedule.
4A.5.....Other.
(a) The representations and warranties of MI and Purchaser set
forth in Section 6 and Section 7 hereof respectively (as the same may have been
changed by notice from Sellers provided therein) shall be true, correct and
complete in all material respects on and as of the Closing Date;
(b) No Act of Bankruptcy on the part of the Sellers, MI or
Purchaser shall have occurred and remain outstanding as of the Closing Date;
(c) Each Owner shall be the sole owner of good and marketable
title to its Property free and clear of all liens, encumbrances, restrictions,
conditions and agreements (other than the Permitted Exceptions and this
Agreement);
(d) There shall be no unsatisfied state or Federal tax liens
against or affecting any Owner which is due and payable, or any tax audit of
such Owner in process, which could result in a lien against any Property; and
(e) There shall be no outstanding, unsettled claim against any
Owner arising under any insurance policies in respect of such Owner of its
Property, which could result in a lien against the Property.
SECTION 5.........CONDITIONS TO SELLER'S OBLIGATION TO CLOSE.
The obligation of Sellers to convey and transfer to Purchaser the
Properties on the Closing Date is subject to the satisfaction or waiver of the
following conditions precedent on and as of the Closing Date:
5.1 Purchase Price. Purchaser shall deliver to Sellers the Purchase
Price as provided in Section 3.2.
5.2 Closing Documents. Purchaser, the Applicable Property Transferee,
the Orland Park Owner or Tenant, as the case may be, shall have delivered to
Sellers:
(a) Duly executed and acknowledged counterparts of the documents
described in Subsections 4.2(b), (c), (d), (e), (f), (g), (k), (l), (s), (t),
(u), (v), (w) and (x);
(b) the CNL Guaranty duly executed by CNL RP in the form set forth
in Schedule II attached hereto;
(c) A certificate of a duly authorized officer of the Purchaser,
the Orland Park Owner and Tenant confirming the continued truth and accuracy of
the representations and warranties of the Purchaser, the Orland Park Owner and
Tenant in this Agreement;
(d) Certified copies of applicable resolutions, certificates of
good standing, and certificates of incumbency with respect to the Purchaser, the
Applicable Property Transferees, the Orland Park Owner, Tenant, and such other
Persons as the Sellers may reasonably require; and
(e) Such other documents, certificates and other instruments as
may be reasonably required to consummate the transaction contemplated hereby.
5.3 Five-Pack Unwind. Simultaneously or prior to the Closing
contemplated by this Agreement, the closing contemplated by the Five Pack Unwind
Agreement shall have been consummated.
5.4 MA2 - 2003 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the MA2 - 2003 Purchase Agreement shall
have been executed by all of the parties thereto; provided however, that the
failure of the parties to enter into such a purchase agreement shall not be
deemed as an event of default under this Agreement.
5.5 MA3 - 2002 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the closing contemplated by the MA3 -
2002 Purchase Agreement shall have been consummated.
5.6 MA3 - 2003 Purchase Agreement. Simultaneously or prior to the
Closing contemplated by this Agreement, the MA3 - 2003 Purchase Agreement shall
have been executed by all of the parties thereto; provided however, that the
failure of the parties to enter into such a purchase agreement shall not be
deemed as an event of default under this Agreement.
SECTION 6.........REPRESENTATIONS AND WARRANTIES OF SELLER.
To induce Purchaser, the Orland Park Owner and Tenant to enter into
this Agreement, MI represents and warrants on behalf of itself and each Owner to
Purchaser, the Orland Park Owner and Tenant, as applicable, as follows:
6.1 Status and Authority of Owner. Each Owner is, or will be at or
before the Closing, a corporation duly organized, validly existing and in
corporate good standing under the laws of its state of incorporation, and has
all requisite power and authority under the laws of such state and its
respective charter documents to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. Each
Owner is duly qualified to transact business and is in good standing in the
state in which its Property is located.
6.2 Status and Authority of MI. MI is a corporation duly organized,
validly existing and in corporate good standing under the laws of its state of
incorporation, and has all requisite power and authority under the laws of such
state and its respective charter documents to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby.
6.3 Employees. Each Owner shall be responsible for payment of all wages
and salaries payable to, and all vacation pay, pension and welfare benefits and
other fringe benefits accrued with respect to all individuals employed by such
Owner at its Property relating to the period prior to the Closing, and Operator,
pursuant to the terms of the Operating Agreement, shall be responsible for
payment of all wages, salaries and vacation pay, pension, welfare and other
benefits relating to the period commencing on and from and after the Closing.
All of the employees at each Property prior to the Closing Date are employees of
the Operator and Operator shall continue to employ such employees immediately
after the Closing Date except for those employees which may be terminated in the
ordinary course of business unrelated to the sale of the Property. At no time
hereunder, upon the Closing or under the applicable Lease, shall any of the
employees at the Property, including employees of Operator, be or be deemed to
be the employees of Purchaser or Tenant, and upon and after the Closing, be or
be deemed to be transferred to Purchaser or Tenant. If required, each Owner or
the Operator, as applicable, will comply with the notice and other requirements
under the Worker Adjustment Retraining and Notification Act ("WARN Act"), the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") or any similar state or
local legislation with respect to such employee matters, and such obligation
shall survive the Closing, notwithstanding anything to the contrary in the WARN
Act. Because Purchaser and Tenant at no time will be or be deemed to be the
employer of employees at any Property, it is expressly understood and agreed
that Purchaser and Tenant are not and shall not be responsible or liable,
directly or indirectly, for payment of any benefits, severance liability,
compensation, pay or other obligations, of whatever nature, due or alleged to be
due to any employee at any Property including employees of Operator, or of any
Owner attributable to any time period up to, upon and after the Closing Date.
Similarly, there shall be no union agreements, pension plans, health plans,
benefit plans, deferred compensation plans, bonus plans or vacation plans or
similar agreements for or concerning such employees which shall be binding upon
Purchaser or Tenant. Nothing contained in this Section 6.3 shall be construed to
affect any of the rights and obligations of the parties under the Operating
Agreement.
6.4 Existing Agreements. There are no (or will not be at the Closing)
service contracts, maintenance agreements, leasing commissions or brokerage
agreements, repair contracts, property management contracts, contracts for the
purchase or delivery of labor, services, materials or goods, supplies or
equipment, leases, licensees or occupancy agreements, or similar agreements
entered into by or on behalf of any Owner with respect to any Property which
will be obligations of Purchaser or Tenant after the Closing, other than (i) the
Permitted Encumbrances, (ii) the documents to be assigned to Purchaser pursuant
to the terms hereof, (iii) the Contracts, (iv) the Lease, (v) the Transition
Period Sublease, if applicable, (vi) the Owner Agreement, (vii) the Operating
Agreement, (viii) the Pooling Agreement, and (ix) any other document or
instrument given or entered into in connection with the Closing. Nothing
contained in this Section 6.4 shall be construed to affect any of the rights and
obligations of the parties under the Operating Agreement. Notwithstanding the
foregoing, if Owner does not obtain the consent from the applicable lessor
necessary to assign to Purchaser any equipment leases with respect to its
Property (each an "Equipment Lease"), Owner shall sublease such equipment to
Purchaser pursuant to the terms of the applicable Equipment Lease provided that
such subletting is not prohibited under such Equipment Lease; if subletting is
prohibited under such Equipment Lease, Owner or its parent shall provide an
alternative arrangement for Purchaser to have use of such equipment or for
Purchaser /to enter into a new agreement for use of such or similar equipment on
comparable terms.
6.5 Tax Returns. All privilege, gross receipts, excise, sales and use,
personal property and franchise taxes with respect to each Property resulting
from its operations prior to the Closing will be paid by Owner as and when due
and payable, and all tax returns for such taxes shall be prepared and duly filed
by such Owner prior to the Closing Date, or will be prepared and duly filed by
such Owner prior to the due date (including extensions thereof) under applicable
law. All taxes, if any, shown on the returns described in this Section 6.5 or
otherwise, determined to be due prior to the Closing, together with any interest
or penalties thereon, will be paid by each Owner prior to the Closing, or
allowance made therefor at the Closing.
6.6 Action of MI and Owners. Each Owner and MI has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by MI or
each Owner on or prior to the Closing Date, such document shall constitute the
valid and binding obligation and agreement of MI and/or such Owner, as
applicable, enforceable against MI and/or such Owner, as applicable, as the case
may be, in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors and general
principles of equity. The person or persons executing and delivering this
Agreement or any other document to be delivered by MI or any Owner on or prior
to the Closing Date is or shall have been prior to the Closing Date, duly
authorized to execute and deliver such documents on behalf of MI and Owner as
applicable.
6.7 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by Sellers, and/or MI, nor compliance with the
terms and provisions hereof, will result in any breach of the terms, conditions
or provisions of, or conflict with or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon any Property or the Orland
Park Property pursuant to the terms of any indenture, mortgage, deed of trust,
note, evidence of indebtedness or any other agreement or instrument by which any
Owner and/or MI, as the case may be, is bound.
6.8 Litigation. Except as set forth in Schedule Z attached hereto,
neither Sellers nor MI have received written notice of and, to the Sellers' and
MI's knowledge, no investigation, action or proceeding is pending or, to the
Sellers' and MI's knowledge, threatened, and the Sellers have not received
written notice of and, to the Sellers' and MI's knowledge, no investigation
looking toward such an action or proceeding has begun, which (a) questions the
validity of this Agreement or any action taken or to be taken pursuant hereto,
or (b) may result in or subject any Property to a material liability which is
not covered by insurance, whether or not Purchaser is indemnified by any of the
Sellers and/or MI with respect to the same, or (c) involves condemnation or
eminent domain proceedings against any material part of any Property.
6.9 Not A Foreign Person. No Owner is a "foreign person" within the
meaning of Section 1445 of the United States Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
6.10 Construction Contracts: Mechanics' Liens. At the Closing, there
will be no outstanding contracts made by any Owner for the construction or
repair of any Improvements relating to its Property which have not been fully
paid for or provision for the payment of which has not been made by Owner and
Owner shall discharge and have released of record or bonded all mechanics' or
materialmen's liens, if any, arising from any labor or materials furnished to
its Property prior to the Closing to the extent any such lien is not insured
over by the Title Company or bonded over pursuant to applicable law. If after
the Closing a mechanics' or materialmen's lien is filed arising from any labor
or materials furnished to any Property prior to the Closing, Owner shall
discharge and have released of record or bonded any such mechanics' or
materialmen's lien within thirty (30) days from the date Owner has notice that
such mechanics' or materialmen's lien was filed.
6.11 Permits, Licenses. As of the Closing, there will be in effect all
material Permits and other authorizations necessary for the then current use,
occupancy and operation of each Property, unless failure to obtain any such
Permits and other authorizations is disclosed to Purchaser in writing, and
Purchaser waives compliance herewith in accordance with Section 4.3(b) of this
Agreement.
6.12 Hazardous Substances. Except as otherwise disclosed to Purchaser
and Tenant, including without limitation any matters described in the
Environmental Reports, to the knowledge of MI and each Owner, each Owner, since
the date that such Owner acquired title to its Property, has not stored or
disposed of (or engaged in the business of storing or disposing of, or
authorized the storage or disposal of) nor has released nor caused nor
authorized the release of any hazardous waste, contaminants, oil, radioactive or
other material on such Property, or any portion thereof, the removal of which is
required or the maintenance of which is prohibited or penalized by any
applicable Federal, state or local statutes, laws, ordinances, rules or
regulations, and which has not as of the Closing Date been removed from such
Property in accordance with such applicable statutes, laws, ordinances, rules or
regulations. To each Owner's and MI's actual knowledge, except as otherwise
disclosed to Purchaser and Tenant, including, without limitation, any matters
described in the Environmental Reports, each Property is free from any such
hazardous waste, contaminants, oil, mold or other biocontaminants, radioactive
and other materials, except for reasonable amounts of any such materials
necessary for the maintenance, repair and operation of the Property as an
assisted living/senior living facility and stored, maintained and used in
accordance with applicable law.
6.13 Insurance. Sellers have received no written notice from any
insurance carrier of defects or inadequacies in any Property which, if
uncorrected, would result in a termination of insurance coverage or a material
increase in the premiums charged therefor.
6.14 Financial Information. Financial information, including, without
limitation, all books and records and financial statements relating to each
Property, which have been provided to Purchaser by MI and the Sellers are true,
correct and complete in all material respects.
6.15 Contracts. Each Owner has performed in all material respects all
of its obligations under each Contract to which the Owner is a party or is
subject and no fact or circumstance has occurred, which by itself or with the
passage of time or the giving of notice or both would constitute a default under
any such Contract and Owner has the right to assign all of the Contracts which
it is assigning to Purchaser or its designee pursuant to this Agreement.
Further, to each Owner's knowledge, all other parties to such Contracts have
performed all of their obligations thereunder in all material respects and are
not in default thereunder.
6.16 Title to FF&E. Each Owner has good and marketable title to the
FF&E described on the FF&E Schedule. Subject to any Equipment Leases as
described in Section 6.4 which can not be assigned by Sellers, the FF&E that is
leased rather than owned by each Owner is included in the Contracts.
6.17 FF&E. The FF&E Schedule accurately describes in all material
respects the FF&E owned by each Owner and located at the Property. As of the
Closing Date, the FF&E shall comply in all material respects with the
requirements of the Operator's Standards (as defined in the Operating
Agreement).
6.18 No Proffers. As of the Closing Date, each Owner and/or MI shall
have paid (or the provision for the payment of which has been made by such
Owner) and/or performed, as applicable, all proffers, exactions, development
fees, tap fees, connection charges, impact fees, improvements (including
off-site improvements) and other requirements imposed by applicable law of any
federal, state or local governmental or quasi-governmental authority in
connection with the construction and development of the Property.
6.19 No Violations. Except as previously disclosed in writing to
Purchaser and Tenant, each Owner has complied in all material respects with all
laws, regulations, orders or other requirements issued by any governmental
authority against or affecting the Property. Except as previously disclosed in
writing to Purchaser and Tenant, each Owner has not received any written notice
or order from any governmental authority requiring any repairs, maintenance or
improvements to the Property which have not been fully performed.
6.20 Separate Tax Parcel. Each Property constitutes a separate parcel
for purposes of ad valorem real property taxes, and is not subject to a lien for
non-payment of real property taxes relating to any other property.
6.21 No Defaults. There exists no material default on the part of any
Owner or MI with respect to any Permitted Encumbrance affecting each Property,
other than those defaults which can be cured or discharged by the payment of
money and for which an allowance for the payment thereof has been made at the
Closing. Notwithstanding anything to the contrary contained in this Section 6
regarding the survival period for the representations and warranties made
hereunder, the representation and warranty made in this Section 6.21 by each
Owner and MI shall survive the Closing for an unlimited period of time.
6.22 American with Disabilities Act. As of the Closing Date, each
Property shall comply in all material respects with the Americans with
Disabilities Act and all related and applicable laws, rules, regulations and/or
orders governing or relating to accessibility.
6.23 Natural Hazard Report for California Property. Owner has employed
the services of Property Data Services, Inc. ("Natural Hazard Expert") to
examine the maps and other information specifically made available to the public
by government agencies for the purposes of enabling Owner to fulfill its
disclosure obligations with respect to the natural hazards referred to in
California Civil Code Section 1103.2 with respect to the California Property and
to report the results of its examination to Purchaser and Owner in writing. The
written report prepared by the Natural Hazard Expert regarding the results of
its examination fully and completely discharges Owner from its disclosure
obligations referred to in California Civil Code Section 1103.2, and, for the
purposes of this Agreement, the provisions of California Civil Code Section
1103.4 regarding the non-liability of Owner for errors and/or omissions not
within its personal knowledge shall be deemed to apply. Notwithstanding anything
to the contrary contained in this Agreement, in no event shall Owner have any
responsibility for matters described in this Section 6.23 not actually known to
Owner or for matters for which the Purchaser has assumed the risk under any
other provision of this Agreement. Notwithstanding the foregoing, Owner shall
not be relieved of any disclosure obligations otherwise required pursuant to
this Section 6.
The representations and warranties made in this Agreement by MI, on
behalf of itself and each Owner, in Section 6.1 through Section 6.9, inclusive,
are made as of the Effective Date and shall be deemed remade by MI, on behalf of
itself and each Owner as of the Closing Date, with the same force and effect as
if made on, and as of, the Closing Date; and the representations and warranties
made in this Agreement by MI, on behalf of itself and each Owner, in Section
6.10 through Section 6.23, inclusive, shall be made as of the Closing Date,
provided, however, that, MI, on behalf of itself and each Owner, shall have the
right, from time to time prior to the Closing Date, to modify the
representations and warranties made in Section 6.7 (No Violations of
Agreements), Section 6.8 (Litigation), Section 6.13 (Insurance), and Section
6.19 (No Violations) as a result of changes in applicable conditions beyond the
control of MI or any Owner, by notice to Purchaser and Tenant and, in such
event, the representations and warranties shall be deemed modified to the extent
required by such changes, and (a) if MI, on behalf of itself and each Owner,
agrees to indemnify Purchaser and Tenant against any loss that may be suffered
by Purchaser or Tenant as a result of such changes, then Purchaser and Tenant
will be required to close hereunder without any abatement of Purchase Price or
changes in any other condition, and (b) if MI, on behalf of itself and each
Owner, elects not to so indemnify Purchaser and Tenant, Purchaser and Tenant
shall each have the option to either accept the change and close, or reject the
change, in which case, if either Purchaser or Tenant rejects such change,
Purchaser's obligation to purchase the Properties and Tenant's obligation to
lease the Properties shall terminate. Except as specifically provided otherwise,
all representations and warranties made in this Agreement by MI, on behalf of
itself and each Owner, shall survive the Closing for a period of twelve (12)
months. Any action, suit or proceeding with respect to the truth, accuracy or
completeness of any such representation or warranty shall be commenced and
served promptly, if at all, on or before the date which is twelve (12) months
after the Closing Date and, if not commenced on or before such date, thereafter
shall be void and of no force or effect. Prior to the Closing, Purchaser and
Tenant will have had the opportunity to investigate independently all physical
aspects of each Property, and to make all such independent inspections and/or
investigations of any Property that Purchaser or Tenant deems necessary or
desirable including, without limitation, review of the building permits,
certificates of occupancy, environmental audits and assessments, toxic reports,
surveys, investigation of land use and development rights, development
restrictions and conditions that are or may be imposed by governmental agencies,
agreements with associations or other private parties affecting or concerning
such Property, the condition of title, soils and geological reports, engineering
and structural certificates, tests and third-party reports (if any),
governmental agreements and approvals and architectural plans and site plans.
Purchaser and Tenant each represent and warrant that, in entering into this
Agreement, it has not relied on any representation, warranty, promise or
statement, express or implied, of Sellers or MI or anyone acting for or on
behalf of Sellers or MI, other than as expressly set forth in this Agreement;
AND THAT, AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BY SELLERS, MI, PURCHASER AND TENANT EACH ACKNOWLEDGE THAT THE
PROPERTIES WILL, UPON THE ACQUISITION BY THE APPLICABLE PROPERTY TRANSFEREES AND
TENANT OF THEIR RESPECTIVE INTERESTS IN SUCH PROPERTY, BE IN THEIR "AS IS"
CONDITION AND IN THEIR "AS IS" STATE OF REPAIR, WITH ALL FAULTS SUBJECT ONLY,
HOWEVER, TO THE EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES MADE BY THE
SELLERS AND MI FOR THE BENEFIT OF PURCHASER AND/OR TENANT EXPRESSLY SET FORTH IN
THIS AGREEMENT.
Except as otherwise expressly provided in this Agreement or any
documents executed and delivered by any Owner or MI to Purchaser or Tenant at
the Closing, each Owner and MI disclaim the making of any representations or
warranties, express or implied, regarding any Property or matters affecting the
same, whether made by such Owner or MI, on Owner's behalf or on MI's behalf, or
otherwise, including, without limitation, the physical condition of the
Property, title to, the boundaries or other survey matters of, the Real
Property, pest control matters, soil conditions, the presence, existence or
absence of hazardous wastes, toxic substances or other environmental matters,
compliance with building, health, safety, land use and zoning laws, regulations
and orders, structural and other engineering characteristics, traffic patterns,
market data, economic conditions or projections, and any other information
pertaining to such Property or the market and physical environments in which the
Property is located. Purchaser and Tenant each acknowledge that it has entered
into this Agreement with the intention of making and relying upon its own
investigation or that of third parties with respect to the physical,
environmental, economic and legal condition of each Property, except as
expressly provided in this Agreement. Purchaser and Tenant each further
acknowledge that it has not received from or on behalf of any Owner or MI, any
accounting, feasibility, marketing, economic, tax, legal, architectural,
engineering, property management or other advice with respect to this
transaction and is relying solely upon the advice of third party accounting,
tax, legal, architectural, engineering, property management and other advisors.
As used in this Agreement, the phrases "to Sellers' knowledge," "to
Owner's knowledge," "MI's knowledge," "to Owner's and MI's knowledge" and "to
Sellers' and MI's knowledge" or words of similar import shall mean the actual
(and not constructive or imputed) knowledge, without independent investigation
or inquiry, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
With respect to the California Property, Purchaser specifically waives
the provisions of California Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED THE
SETTLEMENT WITH THE DEBTOR.
Purchaser agrees, represents and warrants that the aforementioned
waiver of California Code Section 1542 has been negotiated and agreed upon and
that Purchaser hereby intends to release, discharge and acquit Owner from any
such unknown causes of action, claims, demands, debts, controversies, damages,
costs, losses and expenses with respect to the California Property; provided,
however, that the foregoing shall not relieve Owner of any disclosures required
pursuant to this Section 6.
SECTION 7.........REPRESENTATIONS AND WARRANTIES OF PURCHASER AND THE
ORLAND PARK OWNER.
To induce MI, Sellers and Tenant to enter into this Agreement,
Purchaser and the Orland Park Owner each represents and warrants to MI, Sellers
and Tenant as follows:
7.1 Status and Authority of Purchaser and the Orland Park Owner.
Purchaser and the Orland Park Owner are each duly organized and validly existing
under the laws of the jurisdiction in which it was formed, and has all requisite
power and authority under the laws of such state and under its charter documents
to enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Purchaser is, or will be by the Closing
Date, duly qualified and in good standing in the state in which each Property is
located. The Orland Park Owner is duly qualified and in good standing in the
state in which the Orland Park Property is located.
7.2 Action of Purchaser and Orland Park Owner. Purchaser and the Orland
Park Owner have each taken all necessary action to authorize the execution,
delivery and performance of this Agreement, and upon the execution and delivery
of any document to be delivered by Purchaser or the Orland Park Owner on or
prior to the Closing Date, such document shall constitute the valid and binding
obligation and agreement of Purchaser or the Orland Park Owner, enforceable
against Purchaser or the Orland Park Owner in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors and general principles of equity. The person or persons
executing and delivering this Agreement or any other document to be delivered by
Purchaser or the Orland Park Owner on or prior to the Closing Date is or shall
have been prior to the Closing Date, duly authorized to execute and deliver such
documents on behalf of Purchaser or the Orland Park Owner, as applicable.
7.3 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by Purchaser or the Orland Park Owner, nor
compliance with the terms and provisions hereof, will result in any breach of
the terms, conditions or provisions of or conflict with or constitute a default
under, or result in the creation of any lien, charge or encumbrance upon any
Property or the Orland Park Property or assets of Purchaser or the Orland Park
Owner, pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which Purchaser
or the Orland Park Owner is bound.
7.4 Litigation. Purchaser and the Orland Park Owner have received no
written notice of and, to Purchaser's knowledge and to the Orland Park Owner's
knowledge, no investigation, action or proceeding is pending and, to Purchaser's
knowledge and to the Orland Park Owner's knowledge, no action or proceeding is
threatened and Purchaser and the Orland Park Owner have received no notice of,
and to Purchaser's knowledge and to the Orland Park Owner's knowledge, no
investigation looking toward such an action or proceeding has begun, which (a)
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto, or (b) may result in or subject any Property or the Orland Park
Property to a material liability which is not covered by insurance, whether or
not Purchaser or the Orland Park Owner is indemnified by Sellers and/or MI with
respect to the same, or (c) involves condemnation or eminent domain proceedings
against any material part of any Property or the Orland Park Property.
The representations and warranties made in this Agreement by Purchaser
and the Orland Park Owner are made as of the Effective Date and shall be deemed
remade by Purchaser and the Orland Park Owner as of the Closing Date with the
same force and effect as if made on, and as of, such date. Except as
specifically provided otherwise herein, all representations and warranties made
in this Agreement by Purchaser and the Orland Park Owner shall survive the
Closing for a period of twelve (12) months. Any action, suit or proceeding with
respect to the truth, accuracy or completeness of any such representation or
warranty shall be commenced and served promptly, if at all, on or before the
date which is twelve (12) months after the Closing Date and, if not commenced on
or before such date, thereafter shall be void and of no force or effect.
As used in this Agreement, the phrase "to Purchaser's knowledge," the
phrase "to the Orland Park Owner's knowledge," or words of similar import shall
mean the actual (and not constructive or imputed) knowledge, without independent
investigation or inquiry, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇.
SECTION 7A. REPRESENTATIONS AND WARRANTIES OF TENANT.
To induce MI, Sellers, the Orland Park Owner and Purchaser to enter
into this Agreement, Tenant represents and warrants to the MI, Sellers, the
Orland Park Owner and Purchaser as follows:
7A.1 Status and Authority of Tenant. The Tenant is duly organized and
validly existing under the laws of the jurisdiction in which it was formed, and
has all requisite power and authority under the laws of such state and under its
charter documents to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The Tenant is, or will
by the Closing Date become, duly qualified and in good standing in each of the
states in which the Properties are located.
7A.2 Actions of Tenant. The Tenant has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by the Tenant on or
prior to the Closing Date, such document shall constitute the valid and binding
obligation and agreement of the Tenant, enforceable against the Tenant in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors and general
principles of equity. The person or persons executing and delivering this
Agreement or any other document to be delivered by Tenant on or prior to the
Closing Date is or shall have been prior to the Closing Date, duly authorized to
execute and deliver such documents on behalf of Tenant.
7A.3 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by the Tenant, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Tenant pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which the
Tenant is bound.
7A.4 Litigation. The Tenant has not received any written notice of, and
to the Tenant's knowledge, no investigation, action or proceeding is pending
and, to the Tenant's knowledge, no action or proceeding is threatened and the
Tenant has not received any notice of, and to the Tenant's knowledge no
investigation looking toward such an action or proceeding has begun, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
7A.5 Tenant's Financial Condition. The Tenant has delivered to Sellers
and Purchaser a balance sheet of Tenant dated December 13, 2002 which reflects
the financial condition of Tenant as of December 13, 2002.
The representations and warranties made in this Agreement by the Tenant
are made as of the Effective Date and shall be deemed remade by the Tenant as of
the Closing Date with the same force and effect as if made on, and as of, such
date. Except as specifically provided otherwise herein, all representations and
warranties made in this Agreement by the Tenant shall survive the Closing for a
period of twelve (12) months. Any action, suit or proceeding with respect to the
truth, accuracy or completeness of any such representations or warranty shall be
commenced and served, if at all, on or before the date which is twelve (12)
months after the date of such Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect.
As used in this Agreement, the phrases "to the Tenant's knowledge" or
words of similar import shall mean the actual (and not constructive or imputed)
knowledge, without independent investigation or inquiry, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
SECTION 8. COVENANTS OF MI AND OWNERS.
Each Owner and MI hereby covenants with Purchaser as follows:
8.1 Compliance with Laws. From the Effective Date to the Closing Date,
each Owner shall use commercially reasonable efforts to comply in all material
respects with (i) all laws, regulations and other requirements affecting its
Property, from time to time applicable, of every governmental body having
jurisdiction of such Property or the use or occupancy of any Improvements
located thereon, and (ii) all terms, covenants and conditions of instruments of
record affecting such Property.
8.2 Construction. Each Owner agrees to cooperate with the Purchaser
and/or Tenant in enforcing any applicable warranties or guaranties with respect
to any defects in the Improvements that are discovered after the Closing. The
provisions of this Section 8.2 shall survive any Closing under this Agreement.
8.3 Insurance. Each Owner shall, at no expense to such Owner,
reasonably cooperate with Purchaser or Tenant in connection with Purchaser's or
Tenant's obtaining any insurance which may be required to be maintained by
Purchaser or Tenant under the terms of each Lease.
SECTION 9. APPORTIONMENTS.
9.1 Apportionments.
(a) All real estate taxes (including special assessments
attributable to the period prior to the Closing) and items of income and expense
with respect to each Property shall be adjusted between Sellers and Purchaser as
of the Closing Date. All items of revenue, cost and expense of each Property
with respect to the period prior to the Closing Date shall be for the account of
each Owner. All items of revenue, cost and expense of each Property with respect
to the period from and after the Closing Date shall be for the account of Tenant
according to the terms of the Lease. The adjustments hereunder shall be
calculated or paid in an amount based upon a fair and reasonable estimated
accounting performed and agreed to by representatives of Sellers, Purchaser and
Tenant at the Closing. Subsequent final adjustments and payments shall be made
in cash or other immediately available funds as soon as practicable after the
Closing Date, and in any event within ninety (90) days after the Closing Date
(provided that such ninety day period shall be extended up to an additional
thirty (30) days after the necessary information becomes available for the
parties to calculate any necessary adjustments relating to payments of real
estate taxes or special assessments), based upon an accounting performed by the
Operator and acceptable to Sellers, Purchaser and Tenant. In the event the
parties have not agreed with respect to the adjustments required to be made
pursuant to this Section 9.1 within such 90 day period, upon application by any
such party, a certified public accountant reasonably acceptable to the parties
to such disputed adjustment shall determine any such adjustments which have not
theretofore been agreed to between such parties. The charges of such accountant
shall be borne equally by the parties to such disputed adjustment; provided that
Tenant shall not be responsible for the charges of such accountant unless Tenant
made an application to resolve such dispute. All adjustments to be made as a
result of the final results of the adjustments shall be paid to the party
entitled to such adjustment within thirty (30) days after the final
determination thereof.
(b) The provisions of this Section 9.1 shall survive the Closing.
9.2 Closing Costs.
(a) All Third-Party Costs (hereinafter defined) shall be borne one
hundred percent (100%) by Purchaser. As used herein, the term "Third-Party
Costs" shall include the following costs and expenses which are incurred by
Sellers, Purchaser, CNL RP, Tenant, or their respective Affiliates: (i)
Environmental Reports prepared in connection with the purchase and sale of the
Properties; (ii) the Surveys prepared pursuant to Section 2.4; (iii) premiums
for the title insurance policies and endorsements to be provided at the Closing
pursuant to the terms of this Agreement; (iv) any closing or escrow charges or
other expenses payable on the Closing Date to the Title Company conducting the
Closing; (v) property appraisals prepared in connection with the purchase and
sale of the Properties pursuant to this Agreement; (vi) local counsel fees
incurred in connection with the consummation of the Closing in connection with
the transfer of Permits pursuant to Section 4.8 or in connection with the
consummating of the closing of the Financing (which fees shall be limited to
those incurred in connection with usual and customary local counsel services in
similar commercial real estate transactions); (vii) fees and expenses charged by
any governmental entity relating to the transfer of Permits pursuant to Section
4.8 ; (viii) the third-party market assessment reports obtained by Purchaser;
(ix) the third-party architectural and engineering inspection reports of the
Properties obtained by the Purchaser; (x) the third-party audited Special
Purpose Financing Statement for each Property obtained by Purchaser, (xi) any
other separate out-of-pocket costs and expenses incurred by Sellers or Purchaser
or Tenant or their respective Affiliates in connection with the consummation of
the Closing or incurred in connection with the consummation of the closing of
the Financing (included those of a type referred to in the preceding clauses of
this paragraph), including but not limited to the fees and expenses of outside
counsel of Purchaser, the Orland Park Owner, Tenant and their respective
Affiliates (and outside counsel of the lender providing the Financing to the
extent required by the loan documents executed by the Purchaser) in connection
with the preparation and negotiation of this Agreement and all other documents
and instruments in connection with the consummation of the Closing or in
connection with the consummating of the Financing; and (xii) Transfer Taxes
incurred on the Closing Date or in connection with the consummation of the
Financing. Notwithstanding the foregoing, MI shall be responsible for the fees
and expenses of the outside counsel of Sellers, MI and their respective
Affiliates in connection with the preparation and negotiation of this Agreement
and all other documents and instruments in connection with the consummation of
the Closing. Third-Party Costs may be advanced by either Sellers or CNL
Retirement Properties, Inc. or their respective Affiliates or any Affiliate of
Sellers prior to the Closing (but shall be reimbursed by Purchaser to the party
incurring the same at the Closing. All amounts payable by Purchaser under this
Section 9.2(a) shall be paid by the Applicable Property Transferees in the event
that the Closing is consummated hereunder, which amounts (i) shall be allocated
to the Applicable Property Transferee if and to the extent that any amount
specifically relates only to the Property acquired by such Applicable Property
Transferee (as is the case, for example, with respect to title insurance and
Transfer Taxes) or (ii) shall be allocated among all the Applicable Property
Transferees in proportion to the allocation of the Purchase Price among the
Applicable Property Transferees set forth in Schedule I if and to the extent
that any amount does not specifically relate only to the Property acquired by an
Applicable Property Transferee. To the extent that the Third-Party Costs are
known and have or shall be paid on or prior to the Closing Date, within two
Business Days prior to the Closing Date, Sellers shall provide Purchaser with
written notice and a copy of the calculations of any amounts due to Sellers
pursuant to this Section and Purchaser shall reimburse the applicable Seller on
the Closing Date for such costs and expenses. No later than thirty (30) days
after the sixth month anniversary of the Closing Date, Sellers shall provide
Purchaser with written notice and a copy of the calculations of any amounts due
to Sellers pursuant to this Section which were not paid by Purchaser on the
Closing Date and Purchaser shall promptly reimburse the applicable Seller for
such costs and expenses.
(b) As used herein, the term "Transfer Taxes" shall mean any
transfer, sales, use, recordation or other similar taxes, impositions, expenses
or fees incurred in connection with the Closing and the consummation of the
Financing and/or the recordation or filing of any documents or instruments in
connection therewith or the sale, transfer or conveyance of the Properties from
Sellers to Purchaser or the lease of each Property and the Orland Park Property
from Purchaser or the Orland Park Owner to Tenant. Transfer Taxes shall not
include, and each Owner and the Orland Park Owner shall be solely responsible
for any taxes due in respect of its income, net worth or capital, if any, and
any privilege, sales and occupancy taxes, due or owing to any governmental
entity in connection with the operation of its Property or the Orland Park
Property for any period of time prior to the Closing, and Purchaser, the Orland
Park Owner or Tenant, as applicable, shall be solely responsible for all such
taxes for any period from and after the Closing, and provided further that any
income tax arising as a result of the sale and transfer of any Property by
Sellers to Purchaser shall be the sole responsibility of Sellers.
(c) The obligations of the parties under this Section 9 shall
survive the Closing.
SECTION 10. LIMITATIONS ON LIABILITY.
10.1 Default by Sellers. If MI, on behalf of itself or any Owner, shall
have made any representation or warranty herein with respect to any Property
which shall be untrue in any material respect when made or updated as herein
provided and Purchaser or Tenant has knowledge of such default prior to or on
the Closing Date, or if any Owner or MI shall fail to perform any of the
material covenants and agreements contained herein with respect to any Property
and such condition or failure continues for a period of ten (10) days (or such
additional period as may be reasonably required to effectuate a cure of the
same) after written notice thereof from Purchaser or Tenant (collectively, an
"Owner Default"), Purchaser's and Tenant's sole remedy shall be (A) to terminate
this Agreement with respect to such Property affected by Owner's and/or MI's
breach (the "Terminated Property") and this Agreement shall be of no further
force and effect with respect to the Terminated Property, except with respect to
provisions hereof which by their express terms survive a termination of this
Agreement in which event Sellers shall reimburse to Purchaser and Tenant an
amount equal to (x) the Purchaser's and Tenant's direct, out of pocket expenses
incurred in respect of the Properties, not to exceed a combined total of
$300,000 payable to Purchaser and Tenant as they may direct, multiplied by (x) a
fraction with the numerator equal to the Purchase Price allocated to the
Terminated Property and the denominator equal to the total Purchase Price of all
of the Properties; or (B) to consummate the transactions contemplated hereby,
notwithstanding such default, without any abatement or reduction in the Purchase
Price on account thereof. It is understood and agreed that for purposes of this
Section 10.1, if a default results from a false representation or warranty, such
default shall be deemed cured if the events, conditions, acts or omissions
giving rise to the falsehood are cured within the applicable cure period even
though, as a technical matter, such representation or warranty was false as of
the date actually made.
10.2 Default by Purchaser. If Purchaser shall have made any
representation or warranty herein which shall be untrue in any material respect
when made or updated as herein provided and Sellers or Tenant have knowledge of
such default prior to or on the Closing Date, or if Purchaser shall fail to
perform any of the material covenants and agreements contained herein and such
condition or failure continues for a period of ten (10) days (or such additional
period as may be reasonably required to effectuate a cure of the same) after
written notice thereof from Sellers or Tenant, Sellers' and Tenant's sole remedy
shall be (A) to terminate this Agreement with respect to such Property affected
by Purchaser's breach (the "Terminated Property") and this Agreement shall be of
no further force and effect with respect to the Terminated Property, except with
respect to provisions hereof which by their express terms survive a termination
of this Agreement in which event Purchaser shall reimburse to Sellers, MI and
Tenant an amount equal to (x) Seller's, MI's, and Tenant's direct, out of pocket
expenses incurred in respect of the Properties, not to exceed a combined total
of $300,000 payable to Sellers, MI and Tenant as they may direct, multiplied by
(x) a fraction with the numerator equal to the Purchase Price allocated to the
Terminated Property and the denominator equal to the total Purchase Price of all
of the Properties; or (B) to consummate the transactions contemplated hereby,
notwithstanding such default, without any abatement or reduction in the Purchase
Price on account thereof. It is understood and agreed that for purposes of this
Section 10.2, if a default results from a false representation or warranty, such
default shall be deemed cured if the events, conditions, acts or omissions
giving rise to the falsehood are cured within the applicable cure period even
though, as a technical matter, such representation or warranty was false as of
the date actually made.
10.3 Default by the Tenant. If the Tenant shall have made any
representation or warranty herein which shall be untrue in any material respect
when made or updated as herein provided, or if the Tenant shall fail to perform
any of the material covenants and agreements contained herein and such condition
or failure continues for a period of ten (10) days (or such additional period as
may be reasonably required to effectuate a cure of the same) after notice
thereof from the Sellers or the Purchaser, the Sellers or the Purchaser's sole
remedy shall be (A) to terminate this Agreement with respect to such Property
affected by Tenant's breach (the "Terminated Property") and this Agreement shall
be of no further force and effect with respect to the Terminated Property,
except with respect to provisions hereof which by their express terms survive a
termination of this Agreement in which event Tenant shall reimburse to Sellers,
MI and Purchaser an amount equal to (x) Seller's, MI's, and Purchaser's direct,
out of pocket expenses incurred in respect of the Properties, not to exceed a
combined total of $300,000 payable to Sellers, MI and Purchaser as they may
direct, multiplied by (x) a fraction with the numerator equal to the Purchase
Price allocated to the Terminated Property and the denominator equal to the
total Purchase Price of all of the Properties; or (B) to consummate the
transaction contemplated hereby, notwithstanding such default, without any
abatement or reduction in the Purchase Price on account thereof. It is
understood and agreed that for purposes of this Section 10.3, if a default
results from a false representation or warranty, such default shall be deemed
cured if the events, conditions, acts or omissions giving rise to the falsehood
are cured within the applicable cure period even though, as a technical matter,
such representations or warranty was false as of the date actually made.
10.4 Limitations on Liability.
(a) The parties hereto confirm and agree that in each instance
herein where a party or its Affiliates is entitled to payment or reimbursement
for damages, costs or expenses pursuant to the terms and conditions of this
Agreement, any payment or reimbursement made to such party shall be conclusively
deemed to be for the account of both such party and its Affiliates, it being
acknowledged and agreed that a payment or reimbursement made to such party for
damages, costs or expenses shall be sufficient to satisfy all claims for payment
or reimbursement of such party and its Affiliates. The parties further confirm
and agree that no party hereto (a "Non-Performing Party") will be deemed to be
in default hereunder or be liable for any breach of its representations and
warranties under this Agreement if its failure to perform an obligation
hereunder is based solely on the non-performance of another party to this
Agreement (which other party is not an Affiliate of the Non-Performing Party) or
where all conditions precedent to the obligation of such Non-Performing Party to
consummate the Closing under Section 4 have not been fulfilled.
(b) To the maximum extent permitted by applicable law, no
shareholder, director, officer or employee of any party to this Agreement shall
have any personal liability with respect to the liabilities or obligations of
such party under this Agreement or any document executed by such party pursuant
to this Agreement.
SECTION 11. MISCELLANEOUS.
11.1 Agreement to Indemnify.
(a) From and after the Closing Date (i) MI shall indemnify, defend
and hold harmless Purchaser and Tenant from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and disbursements)
arising out of (v) any termination of employment of employees at the Property
prior to or upon the Closing Date resulting from the termination of employment
of such employees by Sellers, Sellers' Affiliate or their respective operator
and/or the failure of the Operator to hire such employees (including, without
limitation, severance pay, wrongful discharge claims, and claims and/or fines
under Federal, state or local statutes or regulations, including, without
limitation, the Worker Adjustment and Retraining Notification Act), (w) the
employment of such individuals prior to the Closing Date, including, without
limitation, employment-related claims; COBRA-related claims; disability claims;
vacation; sick leave; wages; salaries; payments due (or allocable) to any
medical, pension, and health and welfare plans, and any other employee benefit
plan established for the employees at each Property; and employee-related tax
obligations such as, but not limited to, social security and unemployment taxes
accrued as of the Closing Date, (x) events, acts, or omissions of Sellers that
occurred in connection with their respective ownership or operation of each
Property prior to the Closing Date or obligations accruing prior to the Closing
Date under any Contract of Sellers (except to the extent of any adjustment made
in respect of such Contract at the Closing ), (y) any material breach of a
representation or warranty made by MI, on its behalf or any of the Owners under
Section 6 of which Purchaser or Tenant did not have knowledge of such breach
prior to or on the Closing Date (as such representations and warranties may be
modified pursuant to said Section 6 and subject to the twelve (12) month
limitation period set forth therein, if applicable), or (z) any claim against
Purchaser or Tenant for damage to property of others or injury to or death of
any person or any debts or obligations of or against Sellers and arising out of
any event occurring on or about or in connection with any Property or any
portion thereof, at any time or times prior to the Closing Date, (ii) Purchaser
or the Orland Park Owner, as applicable, shall indemnify, defend and hold
harmless Sellers, MI and Tenant from and against any and all obligations,
claims, losses, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and disbursements)
arising out of (x) events, acts, or omissions of Purchaser or the Orland Park
Owner, as applicable, that occur in connection with its ownership or operation
of each Property from and after the Closing Date or obligations accruing from
and after the Closing Date under any Contract of Sellers (or any Contract of the
Operator executed on behalf of Sellers) (except to the extent of any adjustment
made in respect of such Contract at the Closing ), provided that any provision
of any Lease, Operating Agreement or Owner Agreement that applies to such event,
act or omission shall take precedence over the indemnity provided for in this
clause (x), or (y) any material breach of a representation or warranty made by
Purchaser or the Orland Park Owner, as applicable, under Section 7 as such
representations and warranties may be modified pursuant to said Section 7 (and
subject to the twelve (12) month limitation period set forth therein); and (iii)
the Tenant shall indemnify, defend and hold harmless MI, Sellers, the Orland
Park Owner and Purchaser from and against any and all obligations, claims,
losses, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and disbursements) arising out of
any material breach of a representation or warranty made by Tenant under Section
7A (subject to the twelve (12) month limitation period set forth therein).
(b) The provisions of this Section 11.1 shall not apply to any
liabilities or obligations with respect to hazardous substances, the liabilities
of the parties with respect thereto being governed by the representation and
warranty of MI set forth in Section 6.12. The indemnity provided for in this
Section 11.1 shall not extend to any consequential damages or punitive damages.
(c) Whenever it is provided in this Agreement that an obligation
will continue after the Closing as an obligation of Purchaser or be assumed by
Purchaser after the Closing, Purchaser shall be deemed to have also agreed to
indemnify and hold harmless Sellers, MI and Tenant and their respective
successors and assigns from and against any claims, losses, damages,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and expenses) arising from any failure of
Purchaser to perform the obligation so continued or assumed after the Closing
(but not with respect to any act or omission which occurred prior to the
Closing).
(d) Whenever any party shall learn through the filing of a claim
or the commencement of a proceeding or otherwise of the existence of any
liability for which another party is or may be responsible under this Agreement,
the party learning of such liability shall notify the other party promptly and
furnish such copies of documents (and make originals thereof available) and such
other information as such party may have that may be used or useful in the
defense of such claims and shall afford said other party full opportunity to
defend the same in the name of such party and shall generally cooperate with
said other party in the defense of any such claim.
(e) The provisions of this Section 11.1 shall survive the Closing
hereunder subject to the limitations set forth in this Section 11.1. Except as
specifically provided otherwise herein, all representations and warranties made
in this Agreement shall survive the Closing for a period of twelve (12) months
after the Closing Date. With respect to all representations and warranties made
in this Agreement which survive the Closing for a period of twelve (12) months
after the Closing Date, any action, suit or proceeding with respect to the
truth, accuracy or completeness of any such representation or warranty shall be
commenced, if at all, on or before the date which is twelve (12) months after
the Closing Date and served promptly (but in no event later than sixty (60) days
after commencement) and, if not commenced on or before such date and so served,
thereafter shall be void and of no force or effect.
11.2 Brokerage Commissions. Each of the parties hereto represents to
the other parties that it dealt with no broker, finder or like agent in
connection with this Agreement or the transactions contemplated hereby, and that
it reasonably believes that there is no basis for any other person or entity to
claim a commission or other compensation for bringing about this Agreement or
the transactions contemplated hereby. MI shall indemnify and hold harmless
Purchaser, the Orland Park Owner and Tenant and their successors and assigns
from and against any loss, liability or expense, including, reasonable
attorneys' fees, arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or claims are
based in whole or in part on dealings with Sellers. Purchaser, the Orland Park
Owner or Tenant, as the case may be, shall indemnify and hold harmless Sellers
and MI and their successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of any claim or
claims for commissions or other compensation for bringing about this Agreement
or the transactions contemplated hereby made by any broker, finder or like
agent, if such claim or claims are based in whole or in part on dealings with
Orland Park Owner, Purchaser or Tenant, as the case may be. Nothing contained in
this section shall be deemed to create any rights in any third party. The
provisions of this Section 11.2 shall survive the Closing hereunder and any
termination of this Agreement.
11.3 Publicity. The parties agree that no party shall, with respect to
this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated hereby to any third party without the consent of the
other party, which consent shall not be unreasonably withheld, conditioned or
delayed, except as may be required by law or as may be reasonably necessary, on
a confidential basis, to inform any rating agencies, potential sources of
financing, financial analysts, or to entities involved with a sale of a
Controlling Interest in Sellers, MSLS, Purchaser, the Orland Park Owner or
Tenant or any of their Affiliates or to receive legal, accounting and/or tax
advice; provided, however, that, if such information is required to be disclosed
by law, the party so disclosing the information will use reasonable efforts to
give notice to the other parties as soon as such party learns that it must make
such disclosure. Notwithstanding the foregoing, if such information is required
to be disclosed to any governmental authority to facilitate the transfer of
Permits pursuant to Section 4.8, the disclosing party may disclose such
information without the consent of the other parties and shall promptly give
written notice to the other parties of such information which was disclosed.
11.4 Notices.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this Agreement
shall be deemed adequately given if in writing and the same shall be delivered
either in hand, or by mail or Federal Express or similar expedited commercial
carrier, addressed to the recipient of the notice, postpaid and registered or
certified with return receipt requested (if by mail), or with all freight
charges prepaid (if by Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall
be deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, upon the date of receipt or refusal, except that whenever
under this Agreement a notice is either received on a day which is not a
Business Day or is required to be delivered on or before a specific day which is
not a Business Day, the day of receipt or required delivery shall automatically
be extended to the next Business Day.
(c) All such notices shall be addressed,
if to MI, Sellers or any Owner, to:
Marriott International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
with a copy to:
Marriott International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
And
Marriott International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
and
Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
if to Purchaser or the Orland Park Owner, to:
c/o CNL Retirement Corp.
CNL Center at City Commons
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Operating Officer
with a copy to:
Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Post Office Box 2809
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
if to Tenant:
Eight Pack Management Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(d) By notice given as herein provided, the parties hereto and
their respective successors and assigns shall have the right from time to time
and at any time during the term of this Agreement to change their respective
addresses effective upon receipt by the other parties of such notice and each
shall have the right to specify as its address any other address within the
United States of America.
11.5 Waivers, Etc. Any waiver of any term or condition of this
Agreement, or of the breach of any covenant, representation or warranty
contained herein, in any one instance, shall not operate as or be deemed to be
or construed as a further or continuing waiver of any other breach of such term,
condition, covenant, representation or warranty or any other term, condition,
covenant, representation or warranty, nor shall any failure at any time or times
to enforce or require performance of any provision hereof operate as a waiver of
or affect in any manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This Agreement may
not be amended nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing executed by or on behalf of the
party against whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought.
11.6 Assignment; Successors and Assigns. Except as otherwise provided
herein, this Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other parties. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement is
not intended and shall not be construed to create any rights in or to be
enforceable in any part by any other persons.
11.7 Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
11.8 Counterparts, Etc. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of any other
instruments purporting to be an agreement of the parties hereto relating to the
subject matter hereof. This Agreement may not be amended or modified in any
respect other than by the written agreement of all of the parties hereto.
11.9 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be interpreted, construed, applied and
enforced in accordance with the laws of the State of Maryland.
(b) To the maximum extent permitted by applicable law, any action
to enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement shall be brought and prosecuted in such court or courts located
in the State of Maryland as is provided by law; and the parties consent to the
jurisdiction of said court or courts located in the State of Maryland and to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
(c) EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO
THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
AGREEMENT, THE LEASE OR ANY OTHER DOCUMENT RELATED TO THIS AGREEMENT, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY, AND
IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. ANY PARTY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY EACH PARTY HERETO.
11.10 Performance on Business Days. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
11.11 Attorneys' Fees. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees, incurred in connection therewith, in preparation therefor and
on appeal therefrom, which amounts shall be included in any judgment therein.
11.12 Relationship. 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 joint venture between
the parties hereto, it being understood and agreed that (except as and to the
extent specifically provided for herein) 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 purchaser and
landlord and prospective tenant, as the case may be.
11.13 Section and Other Headings. The headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
11.14 Disclosure. From and after Closing Date, and at the written
request of Purchaser, each Owner shall provide such financial statements in
respect of Owner's operations relating to its Property from the date of Owner's
commencement of business to the Closing Date to the extent such financial
statements are required by applicable securities laws and regulations and the
SEC's interpretation thereof; provided, however, that (i) such Owner reserves
the right, in good faith, to challenge, and require Purchaser to use
commercially reasonable efforts to challenge, any assertion by the SEC, any
other applicable regulatory authority, or Purchaser's independent public
accountants that applicable law or regulations require the provision of such
financial statements, (ii) Purchaser shall not, without such Owner's consent
(which consent shall not be unreasonably withheld, delayed or conditioned),
acquiesce to any such challenged assertion until Purchaser has exhausted all
reasonable available avenues of administrative review, and (iii) Purchaser shall
consult with such Owner in pursuing any such challenge and will allow Owner to
participate therein if and to the extent that Owner so elects. Any and all costs
and expenses incurred by Owner, including, without limitation, reasonable
attorneys' fees and expenses, in connection with providing such financial
statements to Purchaser or in connection with any challenge to an SEC assertion
(including Owner's consultation or participation with Purchaser in respect of
same) shall be reimbursed to Owner by Purchaser within ten (10) days following
written demand by Owner.
11.15 Acknowledgment of the Financial Condition of the Parties.
Sellers, Purchaser, the Orland Park Owner and Tenant (by their signatures below)
and each Applicable Property Transferee (by executing the Assignment of Purchase
Contract between the Purchaser and the Applicable Property Transferees) hereby
(i) acknowledge that they have received information concerning the financial
condition of each of the parties hereto, and (ii) agree that, in light of the
obligations of the respective parties under the Purchase Agreement and all other
documents executed pursuant to the Purchase Agreement (collectively the
"Transaction Documents"), the financial condition of each party hereto and the
Applicable Property Transferees is acceptable to all such entities for the
carrying out of each such entity's respective obligations under the Transaction
Documents.
IN WITNESS WHEREOF, the parties have caused this Purchase and Sale
Agreement (MA2-7 Properties) to be executed as a sealed instrument as of the
Effective Date.
SELLERS:
-------
MARRIOTT SENIOR LIVING SERVICES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
MSLS-MAPLERIDGE, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
MI:
--
MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
[SIGNATURES FOR PURCHASE AGREEMENT CONTINUE
ON THE FOLLOWING PAGES]
PURCHASER:
---------
CNL RETIREMENT MA2, LP
By: CNL Retirement MA2 GP Holding, LLC,
a Delaware limited liability company,
Its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
ORLAND PARK OWNER:
CNL RETIREMENT PARTNERS, LP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
[SIGNATURES FOR PURCHASE AGREEMENT CONTINUE
ON THE FOLLOWING PAGE]
TENANT:
------
EIGHT PACK MANAGEMENT CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
[SIGNATURE PAGE FOR PURCHASE AGREEMENT]
Schedule A
Description of the Properties
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Ind. Full Service 163
2. Hemet, CA Maple Ridge 84
3. Hoffman Estates, IL ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇ Maple Ridge 84
5. Willoughby, OH Maple Ridge 84
6. Tulsa, OK ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇
Form of Lease
In the form executed as of
the date hereof by the
parties hereto
Schedule C
Form of Memorandum of Lease
In the form executed as of
the date hereof by the
parties hereto
Schedule D
Form of Operating Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule ▇-▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Property
Pleasant Hills
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
All that certain tract or parcel of land containing 19.401 acres more or less,
being ▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ TOTAL LIVING COMMUNITY, an Addition to the City of
Little Rock, Pulaski County, Arkansas, as recorded in Plat Book A, Page 961 of
the Records of Pulaski County, Arkansas, situated in the Southeast Quarter of
the Southeast Quarter of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Arkansas and being more particularly described as follows; COMMENCING at
the Southeast corner of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Arkansas; THENCE North 01 degrees 12 minutes 15 seconds East (record) for
a distance of 670.30 feet (record) to a point; THENCE North 87 degrees 56
minutes 58 seconds West (record) for a distance of 32.00 feet (record) to a
found 5/8 inch iron rod with cap at the Southeast corner of said Lot 1 and the
Point of Beginning, same being on the West right of way line of Napa Valley
Road; THENCE leaving said right of way and run North 87 degrees 54 minutes 47
seconds West (record North 87 degrees 55 minutes 26 seconds West) along the
South line of Lot 1 for a distance of 619.58 feet (record 620.25 feet) to a
found 5/8 inch iron rod; THENCE North 87 degrees 58 minutes 39 seconds West
(record North 87 degrees 55 minutes 26 seconds West) along the South line of Lot
1 for a distance of 651.59 feet (record 652.22 feet) to a found 1/2 inch iron
rod at the Southwest corner of Lot 1; THENCE North 02 degrees 48 minutes 39
seconds East (record North 02 degrees 51 minutes 29 seconds East) along the West
line of Lot 1 for a distance of 667.50 feet (record 667.44 feet) to a found 3/8
inch iron rod at the Northwest corner of Lot 1; THENCE South 88 degrees 04
minutes 11 seconds East (record South 88 degrees 02 minutes 35 seconds East)
along the North line of Lot 1 for a distance of 642.76 feet (record 642.79 feet)
to a found 3/8 inch iron rod; THENCE South 88 degrees 03 minutes 24 seconds East
(record South 88 degrees 02 minutes 35 seconds East) along the North line of Lot
1 for a distance of 614.15 feet (record 614.87 feet) to a found 1/4 inch iron
rod with cap at the Northeast corner of Lot 1, said point being on the West
right of way line of Napa Valley Road; THENCE South 01 degrees 35 minutes 18
seconds West (record) along said West right of way line, same being the East
line of Lot 1 for a distance of 670.04 feet (record 670.02 feet) to the Point of
Beginning; Containing an area of 845,115 square feet or 19.401 acres more or
less. Being the same property described in Title Commitment No. NA 23709 issued
by First American Title Insurance Company with an effective date of September
23, 2002 at 7:00 a.m.
Schedule ▇-▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ Property
MapleRidge of Hemet
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ALL OF THOSE LOTS OR PARCELS OF LAND LOCATED IN RIVERSIDE COUNTY, CALIFORNIA AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS: ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇-▇, AS SHOWN BY
MAP ON FILE IN BOOK 171 PAGE(S) 63 AND 64 OF MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA; EXCEPTING THEREFROM THAT PORTION AS CONVEYED TO THE CITY OF HEMET BY
DEED RECORDED AUGUST 17, 1989 AS INSTRUMENT NO. 279161 OF OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
Schedule E-3
Description of Hoffman Estates, IL Property
Brighton Gardens of ▇▇▇▇▇▇▇ Estates
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
PARCEL 1:
▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ "I", BEING A SUBDIVISION OF PART OF
THE SOUTHEAST QUARTER OF SECTION 7, TOWNSHIP 41 NORTH, RANGE 10 EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN ▇▇▇▇ COUNTY, ILLINOIS, RECORDED NOVEMBER 17, 1997
AS DOCUMENT 97857293.
PARCEL 2:
EASEMENTS FOR THE BENEFIT OF PARCEL 1 AS GRANTED IN DECLARATION OF EASEMENTS AND
MAINTENANCE AGREEMENT DATED OCTOBER 1, 1997 AND RECORDED NOVEMBER 17, 1997 AS
DOCUMENT 97857294 AND AS CREATED BY THE DEED FROM ▇▇▇▇▇▇ BANK PALATINE, N.A., AS
SUCCESSOR TRUSTEE TO ▇▇▇▇▇▇ BANK ROSELLE, AS TRUSTEE UNDER THE TRUST AGREEMENT
DATED MAY 11, 1993 AND KNOWN AS TRUST NUMBER 13528, TO TERRESTRIS DEVELOPMENT
COMPANY, AN ILLINOIS CORPORATION, RECORDED DECEMBER 17, 1997 AS DOCUMENT
97948975 FOR THE PURPOSE OF CROSS ACCESS AND EMERGENCY ACCESS OVER THOSE
PORTIONS OF LOT 1 DESIGNATED AS SAID EASEMENTS IN THE PLAT OF SUBDIVISION OF
PARCEL "I", BEING A SUBDIVISION OF PART OF THE SOUTHEAST QUARTER OF SECTION 7,
TOWNSHIP 41 NORTH, RANGE 10 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN ▇▇▇▇
COUNTY, ILLINOIS.
PARCEL 3:
EASEMENTS FOR THE BENEFIT OF PARCEL 1 AS CREATED BY THE GRANT OF EASEMENTS DATED
OCTOBER 1, 1997 AND RECORDED NOVEMBER 17, 1997 AS DOCUMENT 97860300 AND SHOWN ON
GRANT OF EASEMENTS PLAT RECORDED NOVEMBER 17, 1997 AS DOCUMENT 97860299 AS
FOLLOWS (PARAGRAPH REFERENCES BELOW ARE TO DOCUMENT 97860300): A) WATER EASEMENT
TO THE EAST DESCRIBED IN PARAGRAPH 2.01 AND DEPICTED ON EXHIBIT "D" ATTACHED
THERETO; B) WATER EASEMENT ALONG MOON LAKE BOULEVARD DESCRIBED IN PARAGRAPH 2.03
AND DEPICTED ON EXHIBIT "H" ATTACHED THERETO; C) STORM WATER DRAINAGE EASEMENT
TO THE NORTH DESCRIBED IN PARAGRAPH 2.04 AND DEPICTED ON EXHIBIT "J" ATTACHED
THERETO; D) TEMPORARY CONSTRUCTION EASEMENT FOR THE EAST EASEMENT DESCRIBED IN
PARAGRAPH 2.05 AND DEPICTED ON EXHIBIT "D" ATTACHED THERETO; E) TEMPORARY
CONSTRUCTION EASEMENT FOR MOON LAKE BOULEVARD EASEMENT DESCRIBED IN PARAGRAPH
2.07 AND DEPICTED ON EXHIBIT "H" ATTACHED THERETO; AND F) TEMPORARY CONSTRUCTION
EASEMENT FOR THE NORTH EASEMENT DESCRIBED IN PARAGRAPH 2.08 AND DEPICTED ON
EXHIBIT "J" ATTACHED THERETO. ALSO DESCRIBED AS FOLLOWS: THAT PART OF THE
SOUTHEAST QUARTER OF SECTION 7, TOWNSHIP 41 NORTH, RANGE 10 EAST OF THE THIRD
PRINCIPAL MERIDIAN, DESCRIBED AS BEGINNING AT THE SOUTHEAST CORNER OF LOT 2 IN
THE PLAT OF SUBDIVISION OF PARCEL "I", BEING A SUBDIVISION IN SAID SOUTHEAST
QUARTER; THENCE THE FOLLOWING COURSES AND DISTANCES ALONG THE LINES OF SAID LOT
2, TO WIT: SOUTH 85 DEGREES 15 MINUTES 10 SECONDS WEST, 370.41 FEET; NORTH 04
DEGREES 44 MINUTES 50 SECONDS WEST, 331.48 FEET; NORTH 86 DEGREES 31 MINUTES 54
SECONDS EAST, 183.36 FEET; SOUTH 69 DEGREES 53 MINUTES 29 SECONDS EAST, 194.88
FEET; SOUTH 20 DEGREES 08 MINUTES 11 SECONDS EAST, 63.91 FEET; THENCE SOUTH 02
DEGREES 39 MINUTES 47 SECONDS EAST, 183.98 FEET TO THE PLACE OF BEGINNING, ALL
IN ▇▇▇▇ COUNTY, ILLINOIS. CONTAINING 114,066 SQ. FT. OR 2.6186 ACRES
Schedule E-4
Description of Plymouth, MA Property
MapleRidge of Plymouth
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All of those lots or parcels of land located in Plymouth County, Massachusetts
and more particularly described as follows:
A certain parcel of land with the buildings thereon, situated on the southerly
side of ▇▇▇▇▇▇ Avenue (Route 3A) near the intersection of Sunrise Avenue, in the
Town of Plymouth in the Commonwealth of Massachusetts, bounded and described as
follows:
Beginning at a point on said ▇▇▇▇▇▇ Avenue at land of ▇▇▇▇▇, thence:
the centerline of Sunrise Avenue thence:
S 89o 15' 12" E, a distance of 50.00' to a point, thence:
S 00o 44' 48" W, a distance of 172.00' to a point, thence:
S 80o 36' 36" E, a distance of 125.74 calculated (123.00' plan), thence:
S 04o 06 18" W, a distance of 457.76, thence:
S 80o 05' 58" E, a distance of 11.28' to a point, thence:
S 39o 15' 14" E, a distance of 59.48' calculated (65.00' plan)to a point,thence:
S 14o 07' 31" E, a distance of 31.95' to a point, thence:
S 27o 37' 17" W, a distance of 52.94' to a point, thence: S 05o 39' 27" W,
a distance of 36.54' to a point, thence:
S 17o 56' 58" E, a distance of 56.53' to a point, thence:
N 87o 26' 20" E, a distance of 6.00' to a point, thence:
S 02o 33' 41" E, a distance of 32.00' to a point, thence:
S 06o 18' 14" E, a distance of 120.00' to a point, thence:
S 07o 13' 45" E, a distance of 120.00' to a point, thence:
S 07o 26' 30" E, a distance of 120.00' to a point, thence:
S 86o 55' 22" W, a distance of 59.82' to a point, thence:
S 83o 50' 11" W, a distance of 268.43' to a point (iron pipe found 1.6'
off), thence: N 04o 01' 25" E, a distance of 1290.00' to the point of beginning.
Property Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
The above parcel contains 262,326 square feet or 6.02 acres land area.
Schedule E-5
Description of Willoughby, OH Property
MapleRidge of Willoughby
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
All of those lots or parcels of land located in Lake County, Ohio and more
particularly described as follows: Situated in the City of ▇▇▇▇▇▇▇▇▇▇, County of
Lake and State of Ohio, and known as being part of Original Willoughby Township,
Lot No. 1 in Tract No. 10 and being further bounded and described as follows:
Commencing at the intersection of the centerline of ▇.▇.▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇ with the centerline of Euclid Avenue, U.S. Route 20; Thence South 3
deg. 07' 40" West, along the centerline of S.O.M. Center Road, a distance of
702.64 feet to a point; Thence South 86 deg. 52' 20" East, a distance of 40.00
feet to a point in the Easterly line of S.O.M. Center Road at the Southerly end
of a curved turnout between said Easterly line and the Southerly line of ▇▇▇▇▇▇
Court; Thence Northeasterly along the arc of said curved turnout, deflecting to
the right, an arc distance of 31.42 feet, to a point of tangency in the
Southerly line of Kaiser Court, said curve having a radius of 20.00 feet and a
chord which bears North 48 deg. 07' 40" East, 28.28 feet; Thence South 86 deg.
52' 20" East, along the Southerly line of Kaiser Court, a distance of 357.46
feet to a 5/8 inch diameter iron pin found (observed 0.03 feet south) at the
point of curve for Cul-de-sac, and the principal place of beginning of the
parcel of land herein described; Thence along the arc of said curve, deflecting
to the left, an arc distance of continued 101.32 feet to a capped iron pin set,
said curve having a radius of 60.00 feet and a chord which bears North 44 deg.
44' 58" East, 89.71 feet; Thence Southeasterly along the arc of a curve
deflecting to the left, an arc distance of 11.62 feet to a capped iron pin set,
said curve having a radius of 8.00 feet and a chord which bears South 45 deg.
15' 01" East, 10.63 feet; Thence South 86 deg. 52' 20" East, a distance of
278.51 feet to a capped iron pin set; Thence North 2 deg. 42' 30" East, a
distance of 273.16 feet to a capped iron pin set in the Southerly line of land
now or formerly owned by Cedarwood Apartments, Limited, by deed recorded in
Volume 1078, Page 925 of Lake County Deed Records; Thence South 87 deg. 17' 30"
East, along said Southerly line, and continuing along the Southerly line of land
now or formerly owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇, TR., by deed recorded in Volume 649,
Page 305 of Lake County Deed Records, a distance of 395.38 feet to a capped iron
pin set at the Northwesterly corner of land now or formerly owned by the City of
▇▇▇▇▇▇▇▇▇▇ by deed recorded in Volume 777, Page 9 of Lake County Deed Records;
Thence South 2 deg. 27' 30" West, along the Westerly line of said City of
Willoughby's land a distance of 701.51 feet to a capped iron pin set at the
Southwesterly corner thereof, said point also being on the Northerly line of Big
Turtle Condominiums as recorded in Volume U, Pages 12 and 12-1 of Lake County
Map Records; Thence North 87 deg. 17' 30" West, along said Northerly line a
distance of 398.44 feet to a 5/8 inch diameter iron pin found, (observed 0.15
feet North and 0.30 feet West) at the Southeasterly corner of land now or
formerly owned by ▇▇▇▇▇▇ Foundation Health Plan of Ohio; Thence North 2 deg. 42'
30" East, along the Easterly line of said ▇▇▇▇▇▇ Foundation Health Plan of
Ohio's land a distance of 368.34 feet to a 5/8 inch diameter iron pin found,
(observed 0.15 feet West) at the Northeasterly corner thereof; Thence North 86
deg. 52' 20" West, along the Northerly line of said ▇▇▇▇▇▇ Foundation Health
Plan of Ohio's land a distance of 346.48 feet to the principal place of
beginning and containing 6.8042 acres of land, as surveyed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
& Associates, Inc., Registered Surveyor No. 5160, State of Ohio, February 1998.
Schedule E-6
Description of Tulsa, OK Property
Brighton Gardens of Tulsa
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LEGAL DESCRIPTION:
ALL OF THOSE LOTS OR PARCELS OF LAND LOCATED IN TULSA COUNTY, OKLAHOMA AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS: ▇▇▇ ▇▇▇ (▇), ▇▇▇▇▇ ▇▇▇ (▇), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
OF TULSA, A SUBDIVISION IN THE CITY OF TULSA, TULSA COUNTY, STATE OF OKLAHOMA,
ACCORDING TO THE RECORDED PLAT NO. 5258 LESS AND EXCEPT THE FOLLOWING DESCRIBED
TRACT THEREOF: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 1; THENCE SOUTH
89(degree)58'46" EAST FOR 279.39 FEET TO THE NORTHERNMOST NORTHEAST CORNER OF
SAID LOT 1; THENCE SOUTH 00(degree)04'36" WEST FOR 132.00 FEET; THENCE NORTH
89(degree)58'46" WEST A DISTANCE OF 279.54 FEET TO A POINT ON THE WEST LINE OF
SAID LOT 1; THENCE NORTH 00(degree)08'35" EAST ALONG THE WEST LINE OF SAID LOT 1
FOR 132.00 FEET TO THE POINT OF BEGINNING. ALSO BEING FURTHER DESCRIBED AS METES
AND BOUNDS BY SURVEYOR AS FOLLOW: A TRACT OF LAND LOCATED IN SOUTHWEST QUARTER
OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER (SW/4 NW/4 NW/4) OF SECTION
THIRTY-TWO (32), TOWNSHIP NINETEEN (19) NORTH, RANGE THIRTEEN (13) EAST OF THE
I.B.M., TULSA COUNTY, OKLAHOMA; COMMENCING AT THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ BEING THE CENTERLINE OF INTERSECTION OF EAST ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; THENCE S 0(degree)08'35" W, ALONG THE WEST LINE OF
SECTION 32, A DISTANCE OF 659.35 FEET; THENCE S 89(degree)58'45" E A DISTANCE OF
50.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING S 89(degree)58'45" E A
DISTANCE OF 609.08 FEET TO A POINT, SAID POINT BEING THE NORTHEAST CORNER OF
SAID SW/4 OF THE NW/4 OF THE NW/4 OF SECTION 32; THENCE S 0(degree)03'47" W,
ALONG SAID EAST LINE OF SAID SW/4 OF THE NW/4 OF THE NW/4, A DISTANCE OF 329.75;
THENCE N 89(degree)58'26" W A DISTANCE OF 329.77 FEET; THENCE N 0(degree)08'35"
E A DISTANCE OF 81.00 FEET; THENCE N 89(degree)58'26" W A DISTANCE OF 279.77
FEET TO A POINT ON THE WEST LINE OF SAID SECTION 32; THENCE N 0(degree)08'35" E
A DISTANCE OF 248.69 FEET TO THE POINT OF BEGINNING. CONTAINING 4.09 ACRES, MORE
OR LESS.
Schedule F
Form of Owner Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule G
Permitted Encumbrances
Schedule H
Form of Pooling Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule I
Allocation of Purchase Price (MA2, December 2002 Closing)
The Purchase Price shall be Thirty Six Million Four Hundred
Eighty-Seven Thousand Four Hundred Ten Dollars ($36,487,410), allocated among
the Properties as follows:
Purchase Price
Facility Location Purchase Price Allocation Percentage
-------- -------- -------------- -----------
Pleasant Hills Little Rock, AR $10,638,918 29.17%
MapleRidge Hemet, CA $ 4,109,688 11.26%
Brighton Gardens Hoffman Estates, IL $ 7,543,752 20.67%
MapleRidge Plymouth, MA $ 4,580,387 12.55%
MapleRidge Willoughby, OH $ 4,930,498 13.51%
Brighton Gardens Tulsa, OK $ 4,684,167 12.84%
Total $36,487,410 100.00%
=========== =======
Schedule J
Title Commitments
---------------------------- -------------------------- ----------------------- ------------------------- ------------
Commitment or Effective Date Property City and State Pool
Order Number
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ September 23, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ October 10, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ MSL2
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ October 22, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ October 8, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ MSL2
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ September 27, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2
---------------------------- -------------------------- ----------------------- ------------------------- ------------
▇▇ ▇▇▇▇▇ October 15, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ MSL2
---------------------------- -------------------------- ----------------------- ------------------------- ------------
Schedule K
Surveys
-------------------------- --------------------------- ------------------------ ------------------------- ------------
The ▇▇▇▇▇▇▇▇ Company Date of Survey Property City and State Pool
Job Number
-------------------------- --------------------------- ------------------------ ------------------------- ------------
23831 November 19, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇
-------------------------- --------------------------- ------------------------ ------------------------- ------------
23818 November 5, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ MSL2
-------------------------- --------------------------- ------------------------ ------------------------- ------------
23824 November 18, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2
-------------------------- --------------------------- ------------------------ ------------------------- ------------
23830 November 18, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ MSL2
-------------------------- --------------------------- ------------------------ ------------------------- ------------
23828 November 25, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2
-------------------------- --------------------------- ------------------------ ------------------------- ------------
22827 November 27, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ MSL2
-------------------------- --------------------------- ------------------------ ------------------------- ------------
Schedule L
Environmental Reports
Little Rock, AR location:
Report of Phase I Environmental Site Assessment prepared by Terra-Mar, Inc.
dated March 16, 1992 Environmental Site Assessment prepared by HBC Engineering,
Inc. dated January 14, 1997 Site Assessment Report prepared by PMI dated July 5,
2001
Hemet, CA location:
Phase I Environmental Site Assessment Report prepared by ▇▇▇▇▇ International
Incorporated dated January 9, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ location:
Phase I Environmental Site Assessment prepared by ▇▇▇▇▇▇ Engineers dated April
2, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ location: Phase I Environmental Site Assessment Report prepared by
▇▇▇▇▇▇ Environmental Consultants, Inc. dated December 17, 1997 Underground
Storage Tank Removal Report prepared by ▇▇▇▇▇▇ Environmental Consultants, Inc.
dated March 11, 1998
Willoughby, OH location: Phase I Environmental Site Assessment Report prepared
by ▇▇▇▇▇ International Incorporated dated February 3, 1998
Tulsa, OK location:
Phase I Environmental Site Assessment prepared by Dames & ▇▇▇▇▇ dated July 30,
1997
Environmental Reports
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Property City and State Pool Provider Effective Date Objection CI Project No.
Letter
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Commercial November 25, ▇▇▇▇ ▇/▇ - ▇▇ ▇▇▇▇-▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ Inspectors, LLC objections
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Brighton Gardens Tulsa, OK MSL2 Commercial November 26, 2002 N/A - No 0154-0024-CNL
Inspectors, LLC objections
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Maple Ridge Hemet, CA MSL2 Commercial November 8, 2002 N/A - No 0154-0029-CNL
Inspectors, LLC objections
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Maple Ridge Plymouth, MA MSL2 Commercial November 25, 2002 Doc. No. 0154-0020-CNL
Inspectors, LLC 609437
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Maple Ridge Willoughby, OH MSL2 Commercial November 26, 2002 N/A - No 0154-0021-CNL
Inspectors, LLC objections
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇ Commercial November 26, 2002 N/A - No 0154-0023-CNL
Inspectors, LLC objections
------------------ ----------------- ---------- ------------------- ------------------ -------------- ----------------
Schedule M
Venture Organizational Chart
[GRAPHIC OMITTED]
Schedule N
Special Warranty Deed
In the form executed as of
the date hereof by the
parties hereto
Schedule O
Assignment of Contracts
In the form executed as of
the date hereof by the
parties hereto
Schedule P
Assignment of Intangible Property
In the form executed as of
the date hereof by the
parties hereto
Schedule Q
Assignment of Purchase Contract to Applicable Property Transferee
In the form executed as of
the date hereof by the
parties hereto
Schedule R
Warranty ▇▇▇▇ of Sale
In the form executed as of
the date hereof by the
parties hereto
SCHEDULE S
FORM OF SUBSTITUTE ARCHITECT'S CERTIFICATE
To: CNL Retirement MA2, LP, a Delaware limited partnership,
as purchaser (together with its successors and assigns "CNL")
and Eight Pack Management Corp. ("Tenant")
From: Marriott International Design and Construction Services, Inc.
Date: ___________, 2002
Re: Facility Location
MapleRidge Hemet, CA
Brighton Gardens Hoffman Estates, IL
MapleRidge Plymouth, MA
MapleRidge Willoughby, OH
Brighton Gardens Tulsa, OK
As an inducement to CNL to acquire the above referenced properties and to Tenant
to lease the above referenced properties, the undersigned does hereby certify to
CNL and Tenant that to the best of undersigned's knowledge the applicable plans
and specifications for construction of the above referenced properties comply
with all applicable requirements of all governmental authorities having
jurisdiction over the improvements located on the above referenced properties,
including without limitation, all applicable zoning laws, ordinances, rules,
regulations and restrictions (but excluding any such ordinances, rules,
regulations and restrictions relating to environmental matters) and that, to the
best of undersigned's knowledge, the above referenced properties were each built
in substantial compliance with said plans, specifications and drawings for each
of such above referenced properties.
Marriott International Design & Construction Services, Inc.
By: __________________________________
Project Director
SCHEDULE T
FORM OF SUBSTITUTE ENGINEER'S CERTIFICATE
To: CNL Retirement MA2, LP, a Delaware limited partnership,
as purchaser (together with its successors and assigns "CNL")
and Eight Pack Management Corp. ("Tenant")
From: Marriott International Design and Construction Services, Inc.
Date: ___________, 2002
Re: Facility Location
MapleRidge Hemet, CA
Brighton Gardens Hoffman Estates, IL
MapleRidge Plymouth, MA
MapleRidge Willoughby, OH
Brighton Gardens Tulsa, OK
As an inducement to CNL to acquire the above referenced properties and to Tenant
to lease the above referenced properties, we do hereby certify to CNL and Tenant
that an engineer duly registered under the laws and applicable regulations of
all governmental authorities having jurisdiction over the improvements located
on the above referenced properties, prepared the plans and specifications for
construction of the above-referenced properties. And that to the best of the
undersigned's knowledge those plans and specifications comply with all
applicable requirements of all governmental authorities having jurisdiction over
the improvements located on the applicable above referenced properties,
including without limitation, all applicable zoning laws, ordinances, rules,
regulations and restrictions (but excluding any such ordinances, rules,
regulations and restrictions relating to environmental matters). In addition, we
hereby certify that, to the best of the undersigned's knowledge, each of the
above referenced properties were built in substantial compliance with said
plans, specifications and drawings for each of such properties.
Marriott International Design & Construction Services, Inc.
By: __________________________________
Project Director
Schedule U
Intentionally omitted
Schedule V
FF&E Schedule
Little Rock, AR location:
Fixed Asset Detail Schedule (BU/Product Dept: 54/54863.6048); For 11/2002
Hemet, CA location:
Fixed Asset Detail Schedule (BU/Product Dept: 53/53107.6048); For 11/2002
Hoffman Estates, IL location:
Fixed Asset Detail Schedule (BU/Product Dept: 54/54504.6048); For 11/2002
Plymouth, MA location:
Fixed Asset Detail Schedule (BU/Product Dept: 53/53622.6048); For 11/2002
Willoughby, OH location:
Fixed Asset Detail Schedule (BU/Product Dept: 53/53506.6048); For 11/2002
Tulsa, OK location:
Fixed Asset Detail Schedule (BU/Product Dept: 54/54310.6048); For 11/2002
Schedule W
Form of Transition Period Sublease
In the form executed as of
the date hereof by the
parties hereto
Schedule X
Description of Motor Vehicles
None.
Schedule Y
Form of Termination of the Orland Park Lease
In the form executed as of
the date hereof by the
parties hereto
Schedule Z
Litigation Matters
None.
Schedule AA
Form of Termination of Orland Park Memorandum of Lease
In the form executed as of
the date hereof by the
parties hereto
Schedule BB
Form of Termination of the Orland Park Rent Guaranty
In the form executed as of
the date hereof by the
parties hereto
Schedule CC
Form of Termination of the Orland Park Membership Interest Pledge
In the form executed as of
the date hereof by the
parties hereto
Schedule DD
Form of Termination of Orland Park Operating Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule EE
Form of Termination of Orland Park Memorandum of Operating Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule FF
Form of Termination of Orland Park Owner Agreement
In the form executed as of
the date hereof by the
parties hereto
Schedule GG
Form of Termination of Orland Park CNL Guaranty
In the form executed as of
the date hereof by the
parties hereto
Schedule HH
Form of New Orland Park Rent Guaranty
In the form executed as of
the date hereof by the
parties hereto
Schedule II
Form of CNL Guaranty
In the form executed as of
the date hereof by the
parties hereto
Schedule JJ
Purchaser's Title and Survey Objections
Title Objection Letters - MSL2/MSL2
Commitment or Effective Date Property City and State Pool Date of Objection Letter Order Number
Document No.
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▇▇ ▇▇▇▇▇ September 23, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇ December 5, 2002 606674
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▇▇ ▇▇▇▇▇ October 10, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ MSL2 November 26, 2002 604508
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▇▇ ▇▇▇▇▇ October 22, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2 December 5, 2002 606597
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▇▇ ▇▇▇▇▇ October 8, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ MSL2 November 30, 2002 605223
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▇▇ ▇▇▇▇▇ September 27, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2 December 5, 2002 606618
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▇▇ ▇▇▇▇▇ October 15, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ MSL2 December 6, 2002 606860
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇ closing December 20, 2002
The ▇▇▇▇▇▇▇▇
Company Date of Survey Property City and State Pool Date of Objection Letter Document No.
Job Number
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23831 November 19, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇ December 5, 2002 606674
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23818 November 5, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ MSL2 November 26, 2002 604508
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23824 November 18, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2 December 5, 2002 606597
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23830 November 18, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ MSL2 November 30, 2002 605223
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23828 November 25, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ MSL2 December 5, 2002 606618
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22827 November 27, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ MSL2 December 6, 2002 606860
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Schedule KK
Purchaser's Environmental Report Objections
Property City and State Pool Provider Effective Date Objection CI Project No.
Letter
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Commercial November 25, ▇▇▇▇ ▇/▇ - ▇▇ ▇▇▇▇-▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ Inspectors, LLC objections
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Brighton Gardens Tulsa, OK MSL2 Commercial November 26, 2002 N/A - No 0154-0024-CNL
Inspectors, LLC objections
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Maple Ridge Hemet, CA MSL2 Commercial November 8, 2002 N/A - No 0154-0029-CNL
Inspectors, LLC objections
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Maple Ridge Plymouth, MA MSL2 Commercial November 25, 2002 Doc. No. 0154-0020-CNL
Inspectors, LLC 609437
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Maple Ridge Willoughby, OH MSL2 Commercial November 26, 2002 N/A - No 0154-0021-CNL
Inspectors, LLC objections
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇ Commercial November 26, 2002 N/A - No 0154-0023-CNL
Inspectors, LLC objections
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