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Purchase and Sale Agreement
Purchase and Sale Agreement (410K)
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PURCHASE AND SALE AGREEMENT
In this Purchase and Sale Agreement (this "Agreement") the following
terms shall have the following meanings:
Date: March __, 2001
Seller: Corporate Realty Investment Company, L.L.C.
One Exeter Plaza, 11th Floor
Boston, Massachusetts 02116
Telephone: (617) 303-4400
Facsimile: (617) 303-4440
Buyer: Fort Austin Limited Partnership
c/o American Retirement Corporation
111 Westwood Place, Suite 402
Brentwood, TN 37027
Telephone: (615) 221-2250
Facsimile: (615) 221-2269
Attention: Todd Kaestner
The Owner: CRICFW One, LLC, a Delaware limited liability company formed
pursuant to a Limited Liability Company Agreement of CRICFW One, LLC
(the "LLC Agreement"), dated as of February 8, 1998, among Wilmington
Trust Company ("WTC"), as Independent Manager, and Seller, as Member.
Membership
Interest: One hundred percent (100%) of the Membership Interest in the
Owner, which is presently held by Seller. As used herein,
"Membership Interest" shall have the meaning given to it in
the LLC Agreement.
Premises: The eighteen (18) parcels of land located at the addresses set
forth, and as further described, in Exhibit A attached hereto,
together with the improvements thereon and the rights and
easements appurtenant thereto, if any.
Financing: Financing with respect to the Premises in the aggregate
original principal amount of _____________________________
Dollars ($_____________) evidenced by eighteen (18) Promissory
Notes (collectively the "Note") issued by the Owner to Legg
Mason Real Estate Services, Inc. ("Legg
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Mason"), and the other financing documents referred to in
Exhibit B attached hereto. The Note and all other documents
evidencing or securing the Note as referred to in said Exhibit
B are collectively referred to herein as the "Financing
Documents." Legg Mason or any other holder of the Note, from
time to time, shall be referred to herein as "Lender."
Lease: The Lease Agreements between the Owner and certain
subsidiaries of Fleetwood Enterprises, Inc. (collectively the
"Tenant"), pursuant to which the Owner has leased the Premises
to Tenant as more particularly described in Exhibit C attached
hereto. The Lease and the related documents set forth in
Exhibit C are collectively referred to herein as the "Lease
Documents."
Purchase
Price: Aggregate Purchase Price of [Fifteen Million Six Hundred
Ninety Thousand Two Hundred Sixty Two Dollars ($15,690,262)]
comprised of a Cash Portion and effectuation of a Loan
Assumption (both defined below) plus the Lender Fees (as
hereinafter defined): (as (i) The Cash Portion shall be equal
to the difference between the Purchase Price and the Loan
Assumption, by wire transfer of immediately available federal
funds, plus (ii) The Loan Assumption means the assumption by
the Buyer on the Closing Date of all obligations of Owner,
Seller and Seller's affiliates under the Financing Documents
including, but not in any way limited to, an outstanding
balance of the Note equal to Nine Million Five Hundred Four
Thousand Five Hundred Dollars ($9,504,500) (the "Assumed Loan
Balance"); provided, however, that Seller may use the Cash
Portion at Closing to pay down the Note in order to arrive at
the Assumed Loan Balance (the "Loan Paydown") and pay the
Lender Fees to Lender. On the Closing Date, the Deposit shall
be credited towards the Cash Portion component of the Purchase
Price.
Deposit: Aggregate Deposit of One Hundred Thousand Dollars ($100,000),
comprised of Fifty Thousand Dollars ($50,000) (the "Initial Deposit")
in immediately available Federal funds to be delivered by Buyer to the
Escrow Agent upon delivery of an original fully executed copy of this
Agreement to the Buyer and an additional Fifty Thousand Dollars
($50,000) (the "Additional Deposit") in immediately available federal
funds to be delivered by Buyer to the Escrow Agent upon expiration of
the Due Diligence Period.
The Initial Deposit together with the Additional Deposit are
herein referred to collectively as the "Deposit." Upon the Purchaser
providing the Escrow Agent with an executed IRS Form W-9, the Deposit
shall be held in an interest bearing account, such interest to accrue
for the benefit of Purchaser.
Escrow Agent: First American Title Insurance Company
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One Financial Center
15th Floor
Boston, MA 02111
Attention: Annette Labreque
Facsimile: (617) 345-5444
Escrow Agent's
Wiring
Instructions: BANK: State Street Bank and Trust Company
225 Franklin Street, Boston, MA 02110
BANK CONTACT: Diana Morris, Unit Manager
816/691-8619
ABA ROUTING NO.: 011-000-028
ACCOUNT NO.: 23628365
ACCOUNT NAME: First American Title Insurance Company
National Accounts - Escrow Account
Please telephone Annette Labreque (617) 772-9229 with the date, amount,
and transaction reference for any funds to be wired.
Exhibits
Attached: A. Legal Description of the Premises
B. List of Financing Documents
C. List of Lease Documents
D. Form of Assignment of Membership Interest
E. List of Environmental Reports and Additional Property
Information
F. List of Owner Financial Statements
G. List of Tenant and Lease Guarantor Financial Statements
H. List of Title Documentation
I. Intentionally Omitted
J. Form of Non-Foreign Affidavit
K. Assignment of Fee Agreement
For good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, Seller agrees to sell, assign, transfer and convey the
Membership Interest to Buyer, and Buyer agrees to acquire the Membership
Interest from Seller, on the terms and conditions set forth herein. The terms
and conditions under which the Membership Interest shall be conveyed are as
follows:
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1. CLOSING. The date (the "Closing Date") for the performance of
this Agreement (the "Closing") shall be within five (5) days
after the later to occur of (a) the satisfaction or waiver by
Buyer of all conditions set forth in Section 13 hereof prior
to the Due Diligence Date (as hereinafter defined) or (b)
Seller's Delivery to Buyer of the items listed in subsections
3(f), (g), (i), (j), (k) and (l) hereof. If any of such
conditions are not satisfied prior to June 13, 2001, then this
Agreement may be terminated by either party hereto, in which
event the Deposit shall be returned to Buyer, unless the
conditions set forth in Subsection 3(k) hereof have not been
satisfied due to the actions or inactions of Buyer, or the
failure of Buyer to satisfy such Lender Conditions (as
hereinafter defined) that are in Buyer's control. The Closing
shall be accomplished by mail and wire transfer and shall
consummate at the offices of Shapiro, Israel & Weiner, P.C.,
100 North Washington Street, Boston, MA ("Seller's Counsel")
at 10:00 A.M. on the Closing Date, unless otherwise agreed
upon in writing by Buyer and Seller.
2. ASSIGNMENT OF MEMBERSHIP INTEREST. At the Closing, Seller
shall assign, transfer and convey the Membership Interest to
Buyer by execution and delivery of the Assignment of
Membership Interest in the form attached hereto as Exhibit D.
The Membership Interest, at the time of the Closing, shall be
free and clear of any liens, encumbrances, or claims of any
third parties.
3. SELLER'S CLOSING DELIVERIES. At the Closing, Seller shall
deliver to Buyer the following (collectively, the "Seller
Closing Documents")
a. An original executed counterpart of an Assignment of
Membership Interest in the form attached hereto as
Exhibit D (the "Assignment"), executed by Seller and
consented to by Lender;
b. Original counterparts, or copies certified to be true
and correct, of any Due Diligence Documents (defined
below) which are in Seller's possession or control;
c. A Non-Foreign Affidavit under the Internal Revenue
Code in the form of Exhibit J attached hereto.
d. An original executed counterpart of an Assignment of
the Fee Agreement, assigning the Fee Agreement with
respect to the Owner, and as executed by Seller and
Wilmington Trust, in the form of Exhibit K attached
hereto (the "Assignment of Fee Agreement");
e. Evidence reasonably acceptable to Buyer's counsel as
to the due authorization of Seller to execute and
deliver all documents at the Closing required
hereunder;
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f. An original counterpart copy of an estoppel
certificate, executed by Tenant, certifying as to
such matters as to which Tenant is obligated to
certify under the Lease, in the form attached as an
exhibit to the Lease, satisfactory to Buyer in all
respects (the "Tenant Estoppel Certificate");
g. An original counterpart copy of an estoppel
certificate executed by Fleetwood Enterprises, Inc.,
a Delaware corporation ("Lease Guarantor"),
certifying as to such matters as are required by
Buyer (the "Guarantor Estoppel Certificate")
reasonably satisfactory to Buyer in all respects;
h. To the extent that CT Corporation ("CT") is serving
as agent for service of process in the State in which
any of the Premises is located, an original
counterpart of a notice to CT that all future notices
and invoices for fees arising in connection with its
duties as local agent for service of process shall be
directed to Buyer (the "CT Notice");
i. Evidence reasonably satisfactory to Buyer of the
amount due and owing under the Financing Documents as
of the Closing Date;
j. Endorsements (the "Title Endorsements") to each of
the ALTA Owner's Policies of Title Insurance
(collectively, the "Title Policies") insuring the
Owner's title to the Premises, which Title
Endorsements shall: (i) if necessary, increase the
amount of title insurance coverage to an amount equal
to that portion of the Purchase Price designated
towards each individual property as set forth in
Exhibit A, (ii) confirm that the transactions
contemplated hereby do not affect coverage and (iii)
contain non-imputation clauses acceptable to Buyer.
k. A written statement signed by the current holder of
the Note: (i) consenting to the transfer of the
Membership Interest to the Buyer; (ii) consenting to
the transfer of the Yuma Property (as hereinafter
defined) from Owner to a single purpose entity owned
by Seller; (iii) confirming that as of the Closing
Date, after the Paydown by Seller, the outstanding
balance due under the Note is equal to the amount of
the Loan Assumption; (iv) confirming the amount that
may be re-advanced to Buyer after the Paydown by
Seller; (v) confirming no defaults exist under the
Financing Documents; (vi) confirming that the
Financing Documents have not been amended as of the
Closing Date, other than as evidenced by the Due
Diligence Documents; and (vii) containing such other
assurances as are reasonably required by Buyer.
l. A written statement signed by the Seller certifying
that: (i) the Owner is a single member single purpose
entity that owns no property other than the Premises
and such personalty as is reasonable and necessary
for ownership of the Premises, (ii) the Owner has no
liabilities except for the Note, (iii) Seller owns
the Membership Interest free and clear of all liens
and encumbrances,
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(iv) there is no default under the Financing
Documents, (v) there is no default under the Lease;
(vi) the Owner has not elected to be taxed as a
corporation for income tax purposes, (vii) the
Financing Documents have not been amended as of the
Closing Date, other than as evidenced by the Due
Diligence Documents; and (viii) there are no oral
agreements or understanding varying or affecting the
Financing Documents or the Lease.
m. Certification that Seller's Representations and
Warranties remain true and correct and are reaffirmed
as of the Closing Date; and
n. Such other affidavits, documents and certificates as
may be customarily and reasonably required by Buyer's
counsel in order to effectuate the transaction
contemplated hereby.
4. BUYER'S CLOSING DELIVERIES. At the Closing, Buyer shall
deliver to Seller the following (collectively, the "Buyer
Closing Documents"):
a. An original executed counterpart of the Assignment,
executed by Buyer;
b. Original executed counterpart copies of the Buyer
Legal Opinions (defined in Section 14 below);
c. An original executed counterpart of the CT Notice,
executed by Buyer;
d. Evidence reasonably acceptable to Seller's Counsel as
to the due authorization of Buyer to execute and
deliver all documents at the Closing required
hereunder;
e. An original executed counterpart of the Assignment of
Fee Agreement; and,
f. Such other affidavits, documents and certificates as
may be customarily and reasonably required by
Seller's Counsel in order to effectuate the
transaction contemplated hereby.
5. PAYMENT OF CASH PORTION. At the Closing, Buyer shall pay the
Cash Portion of the Purchase Price as follows:
a. The Deposit which Buyer has paid this date shall be
credited against the Cash Portion; and
b. The balance of the Cash Portion consideration, as
adjusted pursuant to Section 20 below, shall be paid
at the Closing by federal wire transfer of
immediately available funds pursuant to the Funding
and Escrow Agreement.
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6. DUTIES OF ESCROW AGENT. The Deposit shall be held by Escrow
Agent, and shall be duly accounted for at the Closing. Escrow
Agent shall hold the Deposit in accordance with the terms and
provisions of this Agreement, subject to the following:
a. Escrow Agent undertakes to perform only such duties
as are expressly set forth in this Agreement and no
implied duties or obligations shall be read into this
Agreement against Escrow Agent.
b. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith,
believes to be genuine, and any statement or
assertion contained in such writing or instrument,
and may assume that any person purporting to give any
writing, notice, advice or instrument in connection
with the provisions of this Agreement has been duly
authorized to do so. Escrow Agent shall not be liable
in any manner for the sufficiency or correctness as
to form, manner and execution, or validity of any
instrument deposited in escrow, nor as to the
identity, authority, or right of any person executing
the same, and Escrow Agent's duties under this
Agreement shall be limited to those provided in this
Agreement.
c. Unless Escrow Agent discharges any of its duties
under this Agreement in a negligent manner or is
guilty of willful misconduct with regard to its
duties under this Agreement, Seller and Buyer shall
release Escrow Agent from any and all claims,
liabilities, losses, actions, suits or proceedings at
law or in equity, or other expenses, fees, or charges
of any character or nature, which it may incur or
with which it may be threatened by reason of its
acting as Escrow Agent under this Agreement.
d. If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this
Agreement, or about their respective rights and
obligations, or the propriety of any action
contemplated by Escrow Agent, or the application of
the Deposit, Escrow Agent shall hold the Deposit
until the receipt of written instructions from both
Buyer or Seller or a final order of a court of
competent jurisdiction. In addition, in any such
event, Escrow Agent may, but shall not be required
to, file an action in interpleader to resolve the
disagreement. Escrow Agent shall be indemnified for
all costs and reasonable attorneys' fees in its
capacity as Escrow Agent in connection with any such
interpleader action and shall be fully protected in
suspending all or part of its activities under this
Agreement until a final judgment in the interpleader
action is received.
e. Escrow Agent may consult with counsel of its own
choice and have full and complete authorization and
protection in accordance with the opinion of such
counsel. Escrow Agent shall otherwise not be liable
for any mistakes of fact
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or errors of judgment, or for any acts or omissions
of any kind, unless caused by its negligence or
willful misconduct.
f. All deposits into the escrow shall be held by the
Escrow Agent in an interest bearing account. All
interest earned on the Deposit shall be deemed to be
part of the Deposit and shall accrue to the benefit
of Buyer except to the extent the Deposit becomes
payable to Seller hereunder upon Buyer's default. In
such event the interest earned on the Deposit shall
accrue to the benefit of the Seller.
7. REMEDIES FOR SELLER'S NON-WILLFUL BREACH. If for any reason
other than a willful breach of this Agreement Seller shall be
unable to assign, transfer and convey the Membership Interest
to Buyer as herein stipulated, on the Closing Date, or to
deliver the other Seller Closing Documents to Buyer on the
Closing Date, Seller shall give written notice thereof to
Buyer at or before the Closing Date, and Buyer may, at Buyer's
option, either (a) terminate Buyer's obligation hereunder to
purchase the Membership Interest, and the Escrow Agent shall
promptly refund the Deposit to Buyer, or (b) accept such title
as Seller can deliver to the Membership Interest and to pay
therefor the Purchase Price without deduction or credit except
for reductions necessary to remove liens secured by liquidated
sums, in which case Seller shall assign, transfer and convey
the Membership Interest to Buyer. Buyer acknowledges that, in
the event of Seller's inability to perform as set forth above,
for any reason other than a willful breach of this Agreement,
including without limitation, Seller's inability to obtain
Lender's Approval, the Tenant Estoppel Certificate or provide
any Seller Closing Documents which must be obtained from a
third party, Seller shall have no liability to Buyer therefor
and Buyer's sole remedy shall be to obtain the refund of the
Deposit as aforesaid.
8. REMEDIES FOR SELLER'S WILLFUL BREACH. Subject to Section 7, in
the event Seller willfully breaches its obligation to complete
the sale of the Membership Interest or to perform its
obligations under this Agreement, Buyer may, as its sole
remedies therefor, (i) enforce specific performance of this
Agreement against Seller, or (ii) terminate this Agreement and
obtain a refund of the Deposit without further recourse
against Seller. Notwithstanding the foregoing, should the
remedy of specific performance be legally or practicably
unavailable to Buyer as a result of Seller having conveyed
granted an interest in, encumbered, permitted a lien against,
or taken any action with respect to the Membership Interest or
the Premises, then Buyer may, at its option, and in lieu of
specific performance, seek to recover all damages available to
it under law as a result of Seller's default. Under no
circumstances shall failure to obtain Lender's Approval
constitute a willful default hereunder.
9. CONDITION OF THE PREMISES. Buyer acknowledges that Seller
makes no representations regarding the Premises, and that the
Premises are being acquired by Buyer, by acquisition of the
Membership Interest, strictly on an "as is" basis,
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without representation, warranty or covenant, express or
implied, of any kind whatsoever, and without recourse to
Seller, and that Buyer shall be obligated to purchase the
Membership Interest notwithstanding any change in the
condition of the Premises occurring prior to the date of the
Closing, whether resulting from casualty, taking or otherwise.
Nothing in this Section 9 shall affect, impair or limit
Seller's representations and warranties set forth in Section
12 hereof, or in any other document provided to Buyer in
connection herewith.
10. LIQUIDATED DAMAGES. If Buyer fails to fulfill Buyer's
agreements hereunder for any reason (other than Seller's
breach or default) including, without limitation, Buyer's
obligation to acquire the Membership Interest, to deliver the
Buyer Closing Documents at the time of the Closing, and to pay
the Cash Portion at the Closing, Escrow Agent shall pay the
Deposit to Seller, and the Deposit shall be retained by Seller
as full liquidated damages, and not as a penalty, and that
shall be Seller's sole and exclusive remedy at law or equity.
The parties acknowledge that, if Buyer fails to fulfill
Buyer's agreements hereunder, it would be impossible to
compute exactly Seller's damages. Buyer and Seller have taken
these facts into account in setting the amount of the Deposit
and agree that the Deposit is the best estimate of such
damages and such sum represents damages and not any penalty
against Buyer.
11. BROKERAGE. Seller represents that it has dealt with no broker
in connection with this Agreement. Buyer represents that it
has dealt with no broker in connection with this Agreement
other than Triple Net Advisors, LLC, whose commission will be
paid by Buyer when and if closing occurs. Seller and Buyer
each agree to indemnify and hold the other harmless from and
against any liability, loss, cost, damage, or expense,
including court costs and attorneys' fees, resulting from a
breach of the above representations. The provisions of this
Paragraph shall survive the Closing.
12. REPRESENTATIONS AND WARRANTIES OF SELLER. Subject to all
matters disclosed in any document delivered to Buyer by Seller
or on any exhibit attached hereto, and subject to any
information disclosed to Buyer by Seller prior to the Due
Diligence Date (all such matters being referred to herein as
"Exception Matters"), Seller represents and warrants to Buyer
as of the date hereof as follows:
a. Seller has provided to Buyer true and complete
copies, including any and all amendments or
modifications, of all of the Financing Documents, the
Lease Documents, the LLC Agreement, the Fee
Agreement, the Environmental Reports (defined in
Section 13 below), the Financial Statements (defined
in Section 13 below), the Title Documentation
(defined in Section 13 below), the Additional
Property Information (defined in Section 13 below),
all of the documents listed in Exhibit B, and any and
all other documents or items which materially affect
the Membership Interest or the Premises which are in
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Seller's possession or subject to Seller's control
(collectively, the "Due Diligence Documents").
b. Seller is a limited liability company duly organized
and validly existing under the laws of the State of
Delaware and has all requisite power and authority to
enter into this Agreement and perform its obligations
hereunder. The execution and delivery of this
Agreement have been duly authorized and this
Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against it in
accordance with its terms.
c. Seller has not assigned, pledged or transferred the
Membership Interest, and no person or other entity
has any right or option to acquire the Membership
Interest. The Membership Interest is free and clear
of any lien, encumbrance or claim whatsoever. The
Membership Interest comprises all of the economic,
governing or other interests in the Owner.
d. Except as provided for in the Due Diligence
Documentation, the Owner has not entered into any
agreement which will be binding on it after the
Closing.
e. Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code.
f. Seller has received no written notice of any pending,
threatened or contemplated suits, actions,
arbitrations, claims or proceedings, at law or in
equity, affecting the Owner or Premises or in which
Seller is, or to the best of Seller's knowledge will
be, a party by reason of Seller's ownership of the
Premises.
g. No attachments, execution proceedings, assignments
for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or
threatened against Owner or Seller or, to the best of
Seller's knowledge, any general partners in Seller,
nor are any of such proceedings contemplated by
Seller, or, to the best of Seller's knowledge, any
general partner in Seller.
h. Seller has received no written notice that there is
any plan, study or effort of any governmental
authority that in any way would materially affect the
current use of the Premises or any intended public
improvements that would result in any charge being
levied against, or any lien assessed upon, the
Premises.
i. Seller has not received written notice from any
insurance company of any defects or inadequacies in
the Premises.
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j. The Lease has not been modified, amended or altered
in writing or otherwise; there are no oral agreements
or understanding varying or affecting the Lease, and
no concessions, abatements or adjustments have been
granted to the Tenant except as specified in the
Lease.
k. Seller's interest in the Lease has not been assigned,
encumbered or subjected to any liens and on the
Closing Date, there will be outstanding no such
assignment or encumbrance of Seller's interest in the
Lease, subject, however, to the Due Diligence
Documentation.
l. As of the Closing Date, no commissions, brokerage
fees or similar payments with respect to the Lease
shall be due and owing for which the Seller is bound
and liable and there are no existing brokerage
commission or similar agreements entered into by the
Seller to which the Seller is bound or liable
relating to the leasing of all or any portion of the
Premises.
m. The Financing Documents have not been modified,
amended or altered in writing or otherwise, and there
are no oral agreements or understandings varying or
affecting the Financing Documents.
n. Seller has no knowledge of any negative environmental
condition affecting the Premises, except as
specifically described in the Environmental Reports.
o. As used in this Agreement, or in any other agreement,
document, certificate or instrument delivered by
Seller to Buyer, the phrase "to the best of Seller's
actual knowledge", "to the best of Seller's
knowledge" or any similar phrase shall mean the
actual, not constructive or imputed, knowledge of
Marcy Axelrad, Jay Hooper (or their successor in
interest), and anyone under their supervision without
any obligation on their part to make any independent
investigation of the matters being represented and
warranted, or to make any inquiry of any other
persons, or to search or examine any files, records,
books, correspondence and the like.
Seller shall have no liability whatsoever to Buyer with respect to any
Exception Matters. If Buyer obtains knowledge of any Exception Matters after the
date of the Agreement and prior to the Closing Date, which would make any
representation and warranty of Seller untrue in any material respect, Buyer may
as its exclusive remedy terminate this Agreement and receive a refund of the
Deposit in accordance with the provisions of Section 7 of this Agreement upon
written notice received by Seller within five (5) business days after Buyer
learns of such Exception Matters. Upon any such termination of this Agreement,
neither party shall have any further rights or obligations hereunder except as
expressly provided for herein.
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The representations and warranties of Seller set forth in this
Agreement, shall survive Closing for a period of three hundred sixty (360) days
(the "Survival Period"). No claim for a breach of any representation or warranty
of Seller shall be actionable or payable if the breach in question results from
or is based on a condition, facts or other matter which was known to Buyer prior
to Closing. Seller shall have no liability to Buyer for a breach of any
representation or warranty unless written notice containing a description of the
specific nature of such breach shall have been received by Seller from Buyer
prior to the expiration of the Survival Period and an action shall have been
commenced by Buyer against Seller within sixty (60) days after expiration of the
Survival Period.
12A. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
a. Buyer is a limited partnership, duly organized,
validly existing and in good standing under the laws
of the state of Texas and has all requisite power and
authority to enter into this Agreement and to perform
its obligations hereunder. Buyer's general partner is
ARC Fort Austin Properties, Inc., a corporation duly
formed and organized under the laws of the state of
Tennessee, and has all requisite power and authority
to enter into this Agreement as the General Partner
of Buyer and to perform its obligations hereunder.
The execution and delivery of this Agreement by Buyer
or its General Partner has been duly authorized.
b. Buyer has available to it unrestricted funds which it
may use in its sole discretion to pay the full Cash
Portion and otherwise comply with the provisions of
this Agreement. Buyer acknowledges and agrees that
its obligations hereunder are not contingent upon
Buyer obtaining financing for the purchase of the
Membership Interest.
The representations and warranties of Buyer set forth in this
Agreement shall survive Closing for the Survival Period of
three hundred sixty (360) days. No claim for a breach of any
representation or warranty of Buyer shall be actionable or
payable if the breach in question results from or is based on
a condition, facts or other matter which was actually known to
Seller prior to Closing. Buyer shall have no liability to
Seller for a breach of any representation or warranty unless
written notice containing a description of the specific nature
of such breach shall have been given by Seller to Buyer prior
to the expiration of the Survival Period and an action shall
have been commenced by Seller against Buyer within sixty (60)
days after the expiration of the Survival Period.
13. DUE DILIGENCE PERIOD. Buyer's obligations to acquire the
Membership Interest are contingent upon the following
conditions having been satisfied, or waived by Buyer, on or
before the later to occur of: (i) April 13, 2001 or (ii)
thirty (30) days after the date of this Agreement (the "Due
Diligence Date"). If Buyer does not affirmatively notify
Seller in writing on or before the Due Diligence Date that
Buyer has waived all of the following conditions or that such
conditions have
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been satisfied and deliver the Additional Deposit to the
Escrow Agent, the Deposit shall be immediately refunded to
Buyer, and this Agreement shall be void without recourse to,
or any further obligation of, the parties hereto. In
consideration of such condition, Buyer acknowledges and agrees
that it has been afforded an adequate opportunity to make its
own investigation of the condition of the Premises and any
such matters as it deems relevant with respect to the
Membership Interest, the Owner, the Lease, the Financing
Documents and any other matter relating to the transaction
contemplated hereby. The conditions to be satisfied or waived
by Buyer as aforesaid are as follows:
a. Buyer's review and approval, in Buyer's sole
judgment, of all of the Financing Documents.
b. Buyer's review and approval, in Buyer's sole
judgment, of all of the Lease Documents.
c. Buyer's review and approval, in Buyer's sole
judgment, of the financial books and records, copies
of any tax returns filed by or tax elections made by
the Owner, and any other documentation evidencing the
current financial condition of the Owner
(collectively, the "Owner Financial Statements"), as
listed on Exhibit F attached hereto.
d. Buyer's review and approval, in Buyer's sole
judgment, of the existing environmental site
assessment reports in Seller's possession or control
covering the Premises pertaining to the presence of
hazardous materials, if any, on the Premises (the
"Environmental Reports"), as listed on Exhibit E
attached hereto.
e. Buyer's review and approval, in Buyer's sole
judgment, of any new environmental site assessment
reports Buyer chooses to obtain, at its sole expense,
during the Due Diligence Period.
f. Buyer's review and approval, in Buyer's sole
judgment, of documentation evidencing the current
financial condition of Tenant and Lease Guarantor in
Seller's possession or control (collectively, the
"Tenant and Lease Guarantor Financial Statements";
the Tenant and Lease Guarantor Financial Statements
and the Owner Financial Statements are sometimes
hereinafter collectively referred to as the
"Financial Statements"), as listed on Exhibit G
attached hereto.
g. Buyer's review and approval, in Buyer's sole
judgment, of the existing title insurance policies
covering the Premises and of all related title and
survey documentation in Seller's possession or
control (the "Title Documentation"), as listed on
Exhibit H attached hereto.
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{PAGE} 14
h. Buyer's review and approval, in Buyer's sole
judgment, of the existing appraisals, site plans,
surveys, photographs, engineering reports, plans and
specifications and evidence of compliance with law
(such as certificates of occupancy) with respect to
the Premises in Seller's possession or control, as
listed on Exhibit E (the "Additional Property
Information").
i. Buyer's physical inspection of the Premises, such
inspection to be satisfactory in Buyer's sole
judgment.
j. Buyer has not determined, in its sole discretion, for
any reason or for no reason whatsoever that it is not
advisable to proceed with the transaction
contemplated herein.
14. LENDER'S APPROVAL. It shall be a condition to the transfer of
the Membership Interest under this Agreement that Buyer and/or
Seller shall have obtained all necessary approvals from Lender
and, if applicable, the Rating Agency (as defined in the
Financing Documents) with respect to: (i) the transfer of the
Membership Interest to Buyer and (ii) the transfer of a
property located in Yuma, Arizona (the "Yuma Property") from
Owner to a single purpose entity owned by Seller
(collectively, the "Lender's Approval"), as evidenced by the
execution of the Assignment by Lender or other appropriate
documentation.
If the Lender's Approval is not obtained, unless due to the
failure of Buyer to satisfy the "Lender Conditions" (defined
below), then the Deposit shall be immediately refunded to
Buyer, and this Agreement shall automatically terminate and be
void without recourse to, or any further obligation of, the
parties hereto; provided that if Lender's Approval is not
obtained on or before the Closing Date, and Buyer notifies
Seller of its election to extend the Closing Date for an
additional 30 days, Buyer shall continue to use best
commercially reasonable efforts to satisfy any conditions to
Lender's Approval and to obtain the Lender's Approval and this
Agreement shall remain in effect during such extension period.
Buyer acknowledges that Seller has made no representations or
warranties regarding Buyer's ability to obtain the Lender's
Approval, and that, in the event Buyer is unable to obtain the
Lender's Approval for any reason, Seller shall have no
liability to Buyer therefor and Buyer's sole remedy shall be
to obtain the refund of the Deposit as aforesaid.
In order to obtain Lender's Approval, Buyer shall do the
following: (i) cause First American Title Insurance Company
(the "Title Company") to issue an endorsement to the Lender's
policy of title insurance issued in connection with the
Financing (the "Loan Policy"), stating that the transactions
contemplated by this Agreement will not affect the lien or
priority of the Financing Documents as a first lien against
the Premises; provided however, that (a) Seller shall provide
reasonable assistance to Buyer in obtaining such endorsements
and (b) Seller shall
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{PAGE} 15
be solely responsible for clearing any title defects; (ii)
deliver to Lender all information with respect to the
authority and structure of Buyer and the financial status of
Buyer requested by Lender, including, without limitation,
certificates of legal existence and good standing, consents,
votes and any formation documents creating Buyer or pursuant
to which Buyer is maintained or operated and financial
statements, financial histories, credit histories and
histories of Buyer in operating properties similar to the
Premises; (ii) deliver to Lender any document reasonably
requested by Lender in connection with the Lender's Approval,
including representations and warranties of Buyer to the
effect that (a) it has the requisite power and authority to
enter into the transactions contemplated by this Agreement,
(b) that it will not modify the Owner's organizational
documents or the Financial Documents, (c) that the Financing
Documents remain in full force and effect, unmodified and
enforceable against Owner, (d) that Buyer shall not cause or
permit Owner to amend the Lease with Tenant and (e) that
neither Owner nor Buyer has any intention to file a petition
in bankruptcy or for similar relief or protection, or (f) such
other representations and warranties as Lender shall
reasonably require in connection with the Lender's Approval;
and (iii) Buyer shall cause its counsel, the identity of which
shall be subject to the reasonable approval of Lender and any
Rating Agency, to issue to Lender and the Rating Agency such
legal opinions as are required under the terms of the
Financing Documents or otherwise required by Lender (the
"Buyer Legal Opinions") (all of the foregoing matters being
referred to herein collectively as the "Lender Conditions").
15. NO SURVIVAL. Except for the representations and warranties
descented in Section 12 hereof, the acceptance of the
Assignment by Buyer shall be deemed to be a full performance
and discharge of every agreement and obligation of Seller
herein contained or expressed, except such as are, by the
express terms hereof, to be performed after the delivery of
the Assignment.
16. TIME OF ESSENCE. Time is of the essence of this Agreement.
17. LIMITATION ON LIABILITY. Buyer agrees that Buyer's recourse
against Seller under this Agreement or under any other
agreement, document, certificate or instrument delivered by
Seller to Buyer (including, without limitation, any agreement,
document, certificate or instrument delivered by Seller to
Buyer on the Closing Date), or under any law applicable to the
Premises or this transaction, shall be strictly limited to
Seller's interest in the Membership Interest, (or upon
consummation of the transaction contemplated hereunder, to the
net proceeds of the sale thereof actually received by Seller),
and that in no event shall Buyer seek or obtain any recovery
or judgment against any of Seller's other assets (if any) or
against any of Seller's members, managers, partners (or their
constituent members, managers or partners) or against any
Affiliated Entity of Seller or its assets or any director,
officer, employee, or shareholder of any of the foregoing. The
foregoing limitation of liability shall not apply to (i) any
willful breach of Seller pursuant to Section 8, or (ii) any
material misrepresentation made by Seller
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{PAGE} 16
to Buyer in this Agreement or otherwise in connection with the
transaction contemplated herein.
18. NOTICES. All notices required or permitted hereunder shall be
in writing and shall be given (a) by registered or certified
mail, postage prepaid, (b) by a nationally recognized
overnight delivery service which provides receipted delivery,
or (c) by facsimile transmission with confirmation of receipt,
addressed, (i) if to Seller, to Marcy Axelrad, Vice President,
at Seller's address stated on the first page hereof or such
other address as Seller shall have last designated by written
notice given as aforesaid to Buyer, with a copy to Christopher
R. DeAgazio, Esquire, Shapiro, Israel & Weiner, P.C., 100
North Washington Street, Boston, MA 02114 (Facsimile No.
617-742-2355) , (ii) if to Buyer, at Buyer's address stated on
the first page hereof or such other address as Buyer shall
have last designated by written notice given as aforesaid to
Seller, with a copy to T. Andrew Smith, Bass, Berry & Sims,
2700 AmSouth Center, Nashville, TN 37238 (Facsimile No.:
615-742-2866). Notices shall be deemed given on the date when
deposited in the United States mail or with such overnight
delivery service or when sent by facsimile transmission upon
receipt of confirmation, as aforesaid.
19. EXHIBITS. The Exhibits attached to or referred to herein are
incorporated by reference as if set forth in full herein.
20. PAYMENT OF FEES, COSTS AND EXPENSES. Except as otherwise
provided herein, Buyer and Seller shall each pay the fees of
its counsel retained in connection with this Agreement and the
purchase and sale of the Membership Interest. Buyer shall be
solely responsible for reimbursement of Seller for the payment
of all other fees, costs, and expenses related to the Closing,
including, without limitation, Rating Agency fees, fees of
Lender's counsel and Wilmington Trust's counsel, fees of any
servicer and special servicer and fees of any counsel to the
servicer or special servicer, in connection with obtaining the
Lender's Approval and Wilmington Trust's Approval
(collectively, the "Lender Fees") and transfer taxes,
recording fees and filing fees, if any, which Lender Fees
shall be due and payable by Buyer regardless of whether the
Lender's Approval is obtained or the Closing occurs. In the
event that any of the Lender Fees must be paid prior to
Closing, Buyer shall pay such Lender Fees and shall receive a
credit for the same at Closing. In the event that Buyer is
entitled to the return of its Deposit or any portion thereof
pursuant to the terms of this Agreement, then there shall be
deducted therefrom all Lender Fees incurred in connection with
the attempt to obtain Lender's Approval. At the Closing, the
Annual Administration Fee under the Fee Agreement shall be pro
rated, and Buyer shall receive a credit for any unpaid Annual
Administration Fee to the extent attributable to the period
prior to the Closing and Seller shall receive a credit for any
Annual Administration Fee which has been paid to the extent
attributable to the period after the Closing.
Without limiting the foregoing, Buyer hereby acknowledges the
following:
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{PAGE} 17
a. Buyer shall be solely responsible for the payment of
all transfer taxes, if any, arising out of or
resulting from the consummation of the transaction
which is contemplated by this Agreement, and shall
indemnify and hold Seller harmless from and against
all liability, loss, cost, damage or expense,
including attorneys' fees and disbursements,
resulting from Buyer's failure to pay such transfer
taxes, if any. The indemnity contained in this
Section shall survive the Closing. Seller has made no
representations or warranties to Buyer with respect
to the applicability of transfer taxes to the
transaction contemplated by this Agreement.
b. As between Buyer and Seller, there shall be no
adjustments at the Closing with respect to the
operation of the Premises, maintenance, taxes or
other expenses.
c. As between Buyer and Seller, there will be an
adjustment at closing for prorated rents and
interest; provided, however, that Seller's liability
for such adjustments will not exceed the aggregate of
$15,000. Rental income and interest expense that
accrue for the period prior to the Closing will be
for the account of Seller and rental income and
interest expense that accrue for the period on and
after the Closing will be for the account of Buyer.
For purposes of calculating prorations, Buyer shall
be deemed to be in title to the Membership Interest,
and, therefore, entitled to the income therefrom and
responsible for the expenses thereof for the entire
day upon which the Closing occurs. All such
prorations shall be made on the basis of the actual
number of days of the month which shall have elapsed
as of the Closing Date and based upon the actual
number of days in the month and a 365 day year.
d. To the extent required in order to obtain the
Lender's Approval prior to the Closing Date, Buyer
shall pay any Lender Fees incurred before the
expiration of the Due Diligence Date. Buyer hereby
agrees to make such payments with the understanding
that amounts paid in connection with the same may be
non-refundable and Buyer shall be responsible for all
Lender Fees, regardless of whether this Agreement is
334116
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Fleetwood
As referenced in this Purchase and Sale Agreement:
Fleetwood Enterprises, – Note, from
time to time, shall be referred to herein as "Lender."
Lease: The Lease Agreements between the Owner and certain
subsidiaries of Fleetwood Enterprises, Inc. (collectively the
"Tenant"), pursuant to which the Owner has leased the Premises
to Tenant as more particularly described in Exhibit C
_____________
Fleetwood Enterprises, – the Lease, satisfactory to Buyer in all
respects (the "Tenant Estoppel Certificate");
g. An original counterpart copy of an estoppel
certificate executed by Fleetwood Enterprises, Inc.,
a Delaware corporation ("Lease Guarantor"),
certifying as to such matters as are required by
Buyer (the "Guarantor Estoppel Certificate")
reasonably satisfactory
_____________
dt 686623
;
ARC
As referenced in this Purchase and Sale Agreement:
American Retirement Corp – One Exeter Plaza, 11th Floor
Boston, Massachusetts 02116
Telephone: (617) 303-4400
Facsimile: (617) 303-4440
Buyer: Fort Austin Limited Partnership
c/o American Retirement Corp oration
111 Westwood Place, Suite 402
Brentwood, TN 37027
Telephone: (615) 221-2250
Facsimile: (615) 221-2269
Attention: Todd Kaestner
The Owner: CRICFW
_____________
dt 687247
;
 Andrews & Kurth
As referenced in this Purchase and Sale Agreement:
Andrews & Kurth – s Certificate
VI. TENANT'S ORGANIZATIONAL DOCUMENTS
32. Certificate of Secretary
A. Articles of Incorporation
B. Bylaws
VII. LEGAL OPINIONS
33. Opinion of Andrews & Kurth , L.L.P. with respect to
enforceability of Loan Documents and Lease under Texas law
34. Opinion of Hale and Dorr, LLP
_____________
Andrews & Kurth – s Certificate
VI. TENANT'S ORGANIZATIONAL DOCUMENTS
31. Certificate of Secretary
A. Articles of Incorporation
B. Bylaws
VII. LEGAL OPINIONS
32. Opinion of Andrews & Kurth , L.L.P. with respect to
enforceability of Loan Documents and Lease under Texas law
33. Opinion of Hale and Dorr, LLP
_____________
dt 656531
;
|
Hale and Dorr
As referenced in this Purchase and Sale Agreement:
Hale and Dorr – 28. Opinion of Jack, Lyon & Jones, P.A. with respect to
enforceability of Loan Documents and Lease under Arkansas law
29. Opinion of Hale and Dorr , LLP with respect to
non-consolidation and related bankruptcy matters
30. Opinion of Hale and Dorr, LLP with respect to authority and
_____________
Hale and Dorr – Lease under Arkansas law
29. Opinion of Hale and Dorr, LLP with respect to
non-consolidation and related bankruptcy matters
30. Opinion of Hale and Dorr , LLP with respect to authority and
due execution of Borrower and Indemnitor
31. Opinion of Richards, Layton & Finger with respect to due
_____________
Hale and Dorr – LEGAL OPINIONS
30. Opinion of Holland & Knight, LLP with respect to
enforceability of Loan Documents and Lease under Florida law
31. Opinion of Hale and Dorr , LLP with respect to
non-consolidation and related bankruptcy matters
32. Opinion of Hale and Dorr, LLP with respect to authority and
_____________
Hale and Dorr – Lease under Florida law
31. Opinion of Hale and Dorr, LLP with respect to
non-consolidation and related bankruptcy matters
32. Opinion of Hale and Dorr , LLP with respect to authority and
due execution of Borrower and Indemnitor
33. Opinion of Richards, Layton & Finger with respect to due
_____________
Hale and Dorr – OPINIONS
32. Opinion of Womble Carlyle Sandridge & Rice with respect to
enforceability of Loan Documents and Lease under Georgia law
33. Opinion of Hale and Dorr , LLP with respect to
non-consolidation and related bankruptcy matters
34. Opinion of Hale and Dorr, LLP with respect to authority and
_____________
dt 648267
;
Holland & Knight
As referenced in this Purchase and Sale Agreement:
Holland & Knight, – PAGE} 69
VI. TENANT'S ORGANIZATIONAL DOCUMENTS
29. Certificate of Secretary
A. Articles of Incorporation
B. Bylaws
VII. LEGAL OPINIONS
30. Opinion of Holland & Knight, LLP with respect to
enforceability of Loan Documents and Lease under Florida law
31. Opinion of Hale and Dorr, LLP with respect
_____________
dt 675576
;
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