ASSIGNMENT AGREEMENT
(Deerfield Beach, Florida)
THIS ASSIGNMENT AGREEMENT made this 3rd day of July, 1996, by and among The
CarePlex Group, Inc. ("CAREPLEX"), a Delaware corporation, CareMatrix of
Massachusetts, Inc. (f/k/a CareMatrix Corporation), a Delaware corporation
("Assignor"), and Chancellor of Massachusetts, Inc., a Delaware corporation
("Assignee").
WITNESSETH
WHEREAS, CarePlex has entered into that certain Purchase Agreement (the
"Purchase Agreement"), dated March 5, 1996, relating to a certain parcel of land
located in Deerfield Beach, Florida (the "Land"), a copy of which is attached
hereto as Exhibit A;
WHEREAS, Assignor, an affiliate of Careplex, intends to develop the Land
for an assisted/independent living facility consisting of approximately one
hundred twenty-eight (128) units (the "Project");
WHEREAS, upon the completion of construction of the Project, Assignor
intends to provide operational management services for the Project; and
WHEREAS, (a) CarePlex desires to assign its rights and obligations under
the Purchase Agreement to Assignor, and (b) Assignor desires to simultaneously
therewith assign its rights and obligations under the Purchase Agreement to
Assignee, and (c) Assignee desires to assume such rights and obligations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. CarePlex hereby assigns, sets over and transfers unto Assignor to have
and to hold from and after the date hereof, all of the right, title
and interest of CarePlex in, to and under the Purchase Agreement, and
Assignor hereby accepts the within assignment and assumes and agrees
with CarePlex, to perform and comply with and to be bound by all of
the terms, covenants, agreements, provisions and conditions of the
Purchase Agreement on the part of CarePlex thereunder to be performed
on and after the date hereof, in the same manner and with the same
force and effect as if Assignor had originally executed the Purchase
Agreement.
2
2. Assignor hereby assigns, sets over and transfers unto Assignee to have
and to hold from and after the date hereof, all of the right, title
and interest of Assignor in, to and under the Purchase Agreement, and
Assignee hereby accepts the within assignment and assumes and agrees
with Assignor, to perform and comply with and to be bound by all of
the terms, covenants, agreements, provisions and conditions of the
Purchase Agreement on the part of Assignor thereunder to be performed
on and after the date hereof, in the same manner and with the same
force and effect as if Assignee had originally executed the Purchase
Agreement.
3. Assignor and Assignee agree that Assignor shall act as developer of
the Project pursuant to a turnkey development agreement in form and
substance reasonably satisfactory to each of Assignor and Assignee.
4. Assignor and Assignee agree that Assignor shall, upon completion of
construction of the Project, provide operational management services
for the Project pursuant to a management agreement in form and
substance reasonably satisfactory to each of Assignor and Assignee.
5. Assignor agrees to indemnify and hold harmless Assignee from and
against any and all Claims (as defined in paragraph 7 hereof) accruing
or arising under the Purchase Agreement on or before the date hereof.
6. Assignee agrees to indemnify and hold harmless Assignor from and
against any and all Claims accruing or arising under the Purchase
Agreement after the date hereof.
7. For the purposes of this Agreement, the term "Claims" means all costs,
claims, obligations, damages, penalties, causes of action, losses,
injuries, liabilities and expenses (including, without limitation,
reasonable legal fees and expenses).
8. This Agreement (i) shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, (ii)
shall be governed by the laws of the Commonwealth of Massachusetts,
and (iii) may not be modified orally, but only by a writing signed by
both parties hereto.
3
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
THE CAREPLEX GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title:
ASSIGNOR:
CAREMATRIX OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title:
ASSIGNEE:
CHANCELLOR OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title:
Exhibit A
PURCHASE-SALE AGREEMENT
THIS PURCHASE-SALE AGREEMENT (the "Agreement") is made as of the 5 day of
March, 1996 (the "Effective Date"), by and between HMH REALTY COMPANY, INC. and
HMC RETIREMENT PROPERTIES, INC. (formerly known as Marriott Retirement
Communities, Inc.) (collectively, the "Seller"), both Delaware corporation
having its principal offices at c/o Host Marriott Corporation, 00000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, and THE CAREPLEX GROUP, INC. ("Buyer"), a
Delaware corporation having an address at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, ATTN: Xxxxxxx X. Xxxxxx, Vice President.
WHEREAS, Seller is the owner of certain real property containing
approximately 4.0754 acres (the "Premises") located at Xxxx Xxxxx Xxxxxxxxx xxx
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx, and more particularly described
in the text of the first of the forms of deeds attached hereto as Exhibit A and
made a part hereof and as the double cross-hatched area on the exhibit attached
to the second of the forms of Deeds attached hereto as Exhibit A and made a part
hereof), and the owner of the dominant estate in connection with an easement
over the area (the "Easement Area") triple cross hatched area on the HMC
Retirement Properties, Inc. Deed, and including any and all improvements located
on the
Premises and Easement and appurtenances to the premises and Easement Area. The
"Premises" shall be deemed to include (i) all rights1 title and interest, if
any, of Seller in, to and with respect to any land lying in the bed of any
street, road, avenue or way, open or proposed, in front of or adjoining the
Premises, to the center thereof; and (ii) all easements appurtenant to the
Premises, if any, including, but not limited to, easements over the Easement
Area now or hereafter granted and privileges or rights of way over any property
adjoining the Premises which enure to the benefit of the Premises or the fee
owner thereof and over such streets, lots, avenues and ways, and any and all
other appurtenances, privileges and hereditaments belonging to or in any way
appertaining to the Premises; and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Premises.
NOW, THEREFORE, in consideration of the covenants, conditions, and
agreements contained herein and in consideration of the purchase price to be
paid by Buyer to Seller as hereinafter provided, it is hereby agreed as follows:
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1. Sale of Premises. Seller hereby agrees to sell to Buyer and Buyer hereby
agrees to purchase from Seller at Closing (defined below) the Premises. At
Closing, Buyer shall assume and be responsible for all the obligations of Seller
which run with the land being hereby conveyed except as properly identified as
provided in Section 2.a. or elsewhere in this Agreement.
2. Conditions Precedent. Buyer's obligation to close under this Agreement
is expressly conditioned upon the satisfaction of the following conditions
precedent (the "Conditions Precedent"), at Buyer's sole cost and expense, which
Buyer shall use all due diligence to satisfy:
a. Title. (1) Buyer has ordered a pro forma title insurance commitment
(marked-up copy attached hereto as Exhibit B-1) (the "Commitment") and a survey
by a licensed surveyor relating to part of the Premises but excluding the
Easement Area. Buyer has made objection to the fact that the easement (the
"Easement") for the Easement Area, in the form attached hereto as Exhibit B, has
not been executed and recorded. It shall be a condition precedent to Buyer's
obligation to close this transaction that Seller have duly recorded a fully
executed Easement. Buyer shall not be
-3-
entitled to lodge any further objections to the title and survey of the Parcel 1
and Parcel 2 identified on Exhibit B-1. On or before April 1, 1996, Buyer may
order, at Buyer's cost and expense, and upon receipt, shall deliver a copy to
Seller of, an endorsement to the Commitment which (i) adds the Easement to Item
3, Schedule A of the Commitment, as an appurtenance to the Premises, (ii) adds
the legal description of the Easement Area to Item 4, Schedule A of the
Commitment, (iii) adds no further requirements to Schedule B-1 of the Commitment
and (iv) adds exceptions or matters to Schedule X-x as affect the Easement Area
(the "Endorsement") and a survey of the Easement Area by a licensed surveyor
(the "Survey"). On or before April 1, 1996, Buyer (i) shall notify Seller in
writing that Buyer approves of the Endorsement and the Survey; or (ii) Buyer
shall identify to Seller in writing its objections to the Endorsement and the
Survey ("Objections"), which Objections shall be only matters which "render
title unmarketable" (as defined below). A matter shall be deemed to "render
title unmarketable" only if it would have a material adverse effect on Buyer's
construction or use of the Premises for an Adult Congregate Living Facility
("ACLF") with 128 ACLF units with customary appurtenant uses (the "Intended
-4-
Use"). The presence of the usual printed exceptions contained in the standard
forms of title insurance are not valid Objections; provided, however, that the
foregoing shall not be deemed to restrict or limit Buyer's right to object to
matters which are revealed by the Report or Survey as set forth above. Further,
the existence of any unpaid corporate or franchise taxes of Seller shall not be
deemed valid Objections provided all past reports have been filed by Seller with
the state tax department or other departments where reports are to be filed, and
provided (a) Seller agrees to indemnify and defend Buyer against any loss
(including reasonable attorney's fees) which may result from the existence of
any such unpaid taxes and (b) Buyer's title insurance policy does not take any
exceptions for such matters and/or such matters are insured over by the Title
Company. If Objections are not timely made, Buyer shall be deemed to have
approved the Report and the Survey and the parties shall proceed to Closing.
Within five (5) days of Seller's receipt of any Objections, Seller shall notify
Buyer in writing ("Cure Notice") that (x) the Objections will be cured by Seller
as of Closing or (y) such Objections will not be cured. If the Cure Notice
states Seller will not cure an
-5-
Objection, Buyer shall notify Seller in writing within three (3) days of receipt
of the Cure Notice whether Buyer shall (a) waive its objections and proceed to
Closing, or (b) terminate this Agreement and receive a prompt return of its
Deposit (defined below), as Buyer's sole and exclusive remedy at law and in
equity. If Buyer fails to respond to said Seller's Cure Notice, Buyer shall be
deemed to have elected to proceed to Closing. Notwithstanding anything contained
herein to the contrary, at Buyer's option, Seller shall be obligated to cure any
Objections which relate to voluntary liens or encumbrances placed upon the
Premises securing the payment of monetary obligations (excluding taxes which
Seller indemnifies and defends Buyer against and insures as aforesaid). Except
as aforesaid, Seller shall have no obligation to cure any Objection unless
Seller's Cure Notice states that such Objection will be cured.
b. Site Development Plan and Approvals Excluding Certificate of Need.
On or before April 25, 1996, Buyer shall apply for (i) the required site
development plan and related conditional use permit and parking variance, and
(ii) delegation request approval ("Delegation") (the items in (i) and (ii)
together,
-6-
but excluding the CON (defined below), the "Approvals") for development of the
Premises for the Intended Use, provided however, that the Delegation applied for
and obtained by the Buyer shall be delivered to the Title Company to be held by
it in escrow until the Closing at which time it shall be released to Buyer;
provided however that if the Closing does not occur, the Delegation held by the
Title Company will be released to Seller. Buyer agrees to keep Seller informed
of the status of all submissions and applications. Notwithstanding anything in
this Agreement to the contrary, Buyer agrees that obtaining a Certificate of
Need (the "CON") required by the State of Florida for the operation of the
30-bed nursing facility shall not be a condition precedent to Closing and shall
not delay Closing. Seller acknowledges that Buyer is not required to request the
CON, but that if Buyer requests the CON, Seller will cooperate with Buyer in
Buyer's attempts to obtain such CON. The date of submission for application for
the Approvals shall be the "Application Date". On or before November 29, 1996,
Buyer shall have obtained approval for all the Approvals (excluding the CON the
obtaining of which is not a condition precedent to Closing) with all appeal
periods having expired with no appeal having been filed
-7-
(the Approval Date"). In the event said Approvals have not been so obtained by
the Approval Date and Buyer demonstrates to Seller's reasonable satisfaction
that Buyer has diligently applied for the Approvals and such failure is not
based on any fault or default of Buyer but stems from delays on the part of the
governmental authorities (the "Authorities") having jurisdiction over the
granting of the Approvals, or on the part of other third parties not under the
control of Buyer, Seller shall grant Buyer the amount of time estimated by the
Authorities, or if no such estimate is provided by the Authorities, as
reasonably estimated by Buyer necessary to obtain the Approvals, and for the
expiration of any applicable appeal period; provided, however, the maximum
amount of extension shall not extend past December 16, 1996.
c. Soil. Environmental and Other Site Condition Investigations. On or
before April 1, 1996, Buyer shall obtain, at its sole cost and expense, soil,
geological, physical or other test reports (collectively, the "Investigations")
(i) revealing no site conditions which will materially adversely affect the
development, construction and operation of the buildings, structures, and
improvements to be constructed by Buyer for the Intended Use (the
-8-
"Improvements"), including, but not limited to, the availability of utilities
adequate to service the Improvements, (ii) Phase I environmental assessment or
test report demonstrating that the Premises, either on its surface or
underground, has not been used for or exposed to the release, storage, or
placement of hazardous or toxic wastes or substances, pollutants, or any other
matter which would represent an environmental risk or hazard to the Premises, or
persons or things coming in contact with the Premises, and (iii) demonstrating
that zoning, comprehensive plan designation and concurrency status for the
Premises allows the Intended Use (excluding any need for the CON).
d. Waiver of Conditions precedent. Buyer may at any time, at its
election, by written notice to Seller waive any or all of the Conditions
Precedent and proceed to Closing without any abatement of or reduction in the
Purchase Price (defined below).
e. Failure of Conditions Precedent. In the event of the failure of any
of the Conditions Precedent, Buyer may, by written notice to Seller within five
(5) days after the outside date specified for satisfaction of the respective
Conditions precedent; terminate this Agreement whereupon this Agreement shall
-9-
be of no further force or effect, and Buyer shall be entitled to the prompt
return of the Deposit (defined below), as Buyer's sole and exclusive remedy at
law or in equity and neither party shall have any further rights or liabilities
under the terms of this Agreement. If Buyer does not timely exercise its right
to terminate in accordance with the terms of this Agreement, Buyer shall be
deemed to have waived such right and the parties shall proceed to Closing.
3. Purchase Price. The purchase price (the "Purchase Price") to be paid by
Buyer to Seller for the Premises is One Million One Hundred Thousand Dollars
($1,100,000.00), and shall be paid as follows:
a. Deposit. Simultaneous with Buyer's execution of this Agreement,
Buyer shall deposit with the Title Company, Fifty Thousand Dollars ($50,000.00)
(such amount and any interest earned thereon, the "Deposit") by wire transfer or
certified or bank cashier's check to be held in escrow by the Title Company as a
good faith deposit and to be credited toward the purchase Price at Closing. The
Deposit will be placed in an interest bearing account. In the event that Buyer
shall default in its performance
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in accordance with the terms and conditions of this Agreement, Seller may, at
its sole and exclusive option, and as its sole and exclusive remedy, declare
this Agreement null and void, in which case there shall be no further
obligations hereunder on the part of either party and the Deposit shall be
retained by Seller as liquidated damages, as Seller's sole and exclusive remedy
at law and in equity, it being agreed that damages to Seller in such event would
be difficult to ascertain and that the amount of the Deposit represents a fair
estimate of such damages. As noted above, if this Contract is terminated for a
failure of any of the Conditions Precedent without any default, the Deposit
shall be promptly returned to Buyer, as Buyer's sole and exclusive remedy at law
and in equity, in which case there shall be no further obligations hereunder on
the part of either party.
b. Balance of purchase Price. At Closing, Buyer shall pay to Seller
the balance of the Purchase Price by wire transfer of immediately available
funds to an account designated by Seller. There shall be no increase in or
reduction of the purchase Price if the actual acreage of the Premises is other
than as is previously stated. Notwithstanding the foregoing sentence, Seller
confirms
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that pursuant to Section 2.a. hereinabove, Buyer has the opportunity to make
timely objections to the Survey.
4 Deed. At Closing, Seller agrees to convey good, record, marketable and
insurable fee simple title to the Premises by a deed in the form accepted by
Seller when Seller acquired the Premises (the "Deed") in the form attached
hereto as Exhibit A and free and clear of all tenancies, liens, encumbrances,
and encroachments, and subject only to such covenants, conditions, restrictions,
and easements as shall affect the Premises and be of record on the earlier of
(a) the date that title is examined and accepted by Buyer; or (b) the date that
the right to object to Objections expires without such Objections being made, as
the case may be.
5. Closing. Unless this Agreement is terminated as herein provided, the
consummation of the purchase and sale provided herein (the "Closing") shall be
by escrow at the Title Company, on the date (the "Closing Date") which is thirty
(30) days after the Approval Date, as the same may be extended pursuant to
Section 2.b; provided, however, notwithstanding anything to the contrary in this
Agreement, the Closing Date shall occur no later than December 16, 1996. Buyer
shall give Seller at least five (5) days' prior
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written notice of the Closing Date in order that Seller may have such time to
prepare for an orderly transfer of the Premises. Buyer or the Title Company, at
Buyer's direction, shall deliver a preliminary settlement statement to Seller at
least three (3) business days prior to the Closing Date. The parties agree that
time is of the essence in this Agreement.
6. Delivery of Documents and Proceeds at Closing. At Closing, Buyer shall
deliver to Seller sums representing the balance of the Purchase Price, together
with all other instruments required under this Agreement to be so delivered to
Seller by Buyer. At Closing, Seller shall deliver to Buyer the Deed duly
executed and acknowledged by Seller, together with all other instruments
required under this Agreement to be so delivered to Buyer by Seller.
7. Closing Costs. Seller agrees to pay the cost of preparing the Deed, the
Broker's Fee (defined below) and Seller's pro-rata share of real estate taxes as
described in Section 9 below. Buyer agrees to pay the Investigations and all
other costs of settlement, including, but not limited to, title insurance costs
(including preparation of the Report), survey charges, subdivision
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costs, conveyancing costs, escrow fees, transfer taxes, stamps, notary fees,
recording fees, and all other settlement or Closing charges or costs. The
parties will pay their own attorneys' or accountants' fees.
8. Condition of Premises. Buyer accepts the Premises, including the
improvements located thereon, in "AS IS" condition as of the Effective Date,
ordinary wear and tear and normal deterioration between the Effective Date and
the Closing Date excepted, it being hereby expressly understood (i) that Seller
has made no representations or warranties with respect to such Premises and (ii)
that at or before the Closing Date, except as herein or in the Deed otherwise
stated, Buyer will have accepted the Investigations.
9. Prorations. All taxes, assessments and interest, if any, shall be
prorated between Buyer and Seller as of the Closing Date, however, in connection
with this transaction Buyer agrees to pay any and all sales, use, transfer or
other like taxes payable to or legally assessed by any governmental authority
having or asserting jurisdiction thereover; provided, however, that the
foregoing shall not be deemed to obligate Buyer to pay any federal or state
income
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tax on the sale of the Premises which would otherwise be the responsibility of
Seller. Prorations shall be based upon current year 5 taxes and assessments, and
if not available, upon figures for the preceding year, in which event Buyer and
Seller shall readjust the prorations when the current year's taxes and
assessments become available.
10. Commission. Seller represents and warrants that the sole broker for
this transaction is CB Commercial Real Estate Group, Inc. and that at Closing,
Seller shall pay any a brokerage commission to CB Commercial Real Estate Group,
Inc. pursuant to a separate agreement. Buyer and Seller represent and warrant
that this Agreement was brought about without the aid of any other agent or
broker who dealt with the respective parties and that there are no commissions
or finder's fees due to any other person, firm, or corporation as a result of
this Agreement based on dealings with the respective party. Each party agrees to
indemnify and defend the other from and against any claims that may be made
against the other for any type of a real estate commission or finder's fee as a
result of a breach of the foregoing representations and warranties.
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11. Risk of Loss. Subject to the provisions of paragraph 9 hereinabove, the
risk of loss or damage to the Premises by casualty up to the Closing shall be
borne by Seller and any risk of loss or damage to the Premises by casualty after
the Closing shall be borne by Buyer. If at any time prior to Closing all or any
portion of the Premises are damaged or destroyed as a result of fire or other
casualty, Seller shall have the option of (i) repairing the damage prior to
Closing or allowing the Buyer a credit against the Purchase Price for the
mutually agreed cost of repairing the damage and proceeding to Closing, or (ii)
terminating this Agreement, whereupon the Deposit, including any interest
accrued thereon, shall be promptly returned to Buyer, as its sole and exclusive
remedy at law or in equity and neither party shall have any further rights or
liabilities hereunder. Buyer shall have the right to waive any claim it may have
as a result of any damage caused to the Premises by casualty and proceed to
settlement without any abatement of the Purchase Price.
12. Condemnation. In the event condemnation proceedings which would have a
material adverse effect on Buyer's Intended Use of the Premises are instituted
or threatened by the taking
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authority's submission of a firm offer in lieu of condemnation, or otherwise,
prior to Closing, Buyer shall have the option to (i) terminate this Agreement
whereupon this Agreement shall be of no further force or effect, and Buyer shall
be entitled to a return of the Deposit as its sole and exclusive remedy at law
or in equity, and neither party shall have any further rights or liabilities
under this Agreement, or (ii) proceed with the purchase of the Premises in
accordance with the terms hereof without any abatement of the Purchase Price and
receive an assignment from Seller of all of Seller's right, title, and interest
in and to any proceeds or award resulting from such condemnation.
13. Assignment. Buyer may not assign its rights or delegate its obligations
under this Agreement without the prior written consent of Seller; provided,
however, Buyer shall have the right to assign this Agreement to an affiliate of
Buyer controlled by Xxxxxxx X. Xxxxxx of Palm Beach, Florida, or any of his
family members, provided that Buyer shall guarantee the performance of such
assignee hereunder and promptly provides notice of such assignment to Seller.
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14. Survival of Representations. Unless the context otherwise requires,
warranties, covenants, agreements, and indemnities set forth in or made pursuant
to this Agreement shall remain operative and shall survive for a period of one
(1) year after the Closing Date and the execution and delivery of the Deed shall
not be merged therein. Notwithstanding the foregoing, there shall be no time
limit on the warranties contained in the Deed.
15. Headings. Headings of the sections hereof are inserted for convenience
only and shall not constitute a part of this Agreement.
16. Waiver. The failure of either party to enforce any condition or
provision of this Agreement at any time shall not be construed as a waiver of
that condition or provision nor shall it operate as a forfeiture of any right to
future enforcement of any such condition or provision.
17. Gender and Number. Words of any gender shall be held to include any
other gender and words in the singular number shall be held to include the
plural and vice versa, as the context may require.
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18. Possession. Possession of the Premises shall be delivered to Buyer at
Closing free and clear of all tenants or occupants, and in all respects in
accordance with the terms of this Agreement
19. Notice. All notices required or permitted to be given hereunder shall
be in writing and delivered personally or sent by United States registered or
certified mail, postage prepaid, return receipt requested, or by express
delivery service which provides for return receipts, addressed to the parties as
follows:
To Seller To Buyer:
--------- ---------
c/o Host Marriott Corporation 000 Xxxxx Xxxxxx
00000 Xxxxxxxx Xxxx Xxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx ATTN: Xxxxxxx X. Xxxxxx
Corporate Real Estate Dept. 906 Vice President
with a copy to:
---------------
c/o Host Marriott Corporation 000 Xxxxx Xxxxxx
00000 Xxxxxxxx Xxxx Xxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq. ATTN: Xxxxx X. Xxxxx, III, Esq.
Law Dept. 923
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or to such other address as the parties may direct by notice given as
hereinabove provided. Notice shall be deemed given when received as evidenced by
the return receipt or the date such notice is first refused, if that be the
case.
20. Successors and Assigns. The terms, conditions, and covenants contained
herein shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of the respective parties hereto.
21. Right of Entry. Until the Investigations Deadline, Seller shall permit
Buyer access to the Premises at all reasonable times for the purpose of making,
at Buyer's expense, soil and engineering studies of the Premises and the
Investigations, provided that Buyer shall not excavate or alter the grade of the
Premises except as required to perform the Investigations and Buyer shall repair
and restore the Premises to its condition existing prior to Buyer's entry. Buyer
shall indemnify, defend, and hold Seller harmless from and against any and all
liabilities, obligations, claims, damages, demands, penalties, causes of action,
costs, and expenses (including reasonable attorneys' fees), whether arising out
of injury to persons (including death) or damage to the
- 20 -
Premises or adjoining property or loss of any personal property or otherwise,
arising out of Buyer's entry or activities on the Premises. Buyer shall, if
required by Seller, maintain and deliver to Seller policies of comprehensive
general liability insurance in such amounts, covering such risks and in such
form as may be reasonably requested by Seller.
22. [Intentionally Omitted]
23. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior and contemporaneous
agreements and undertakings of the parties pertaining to the subject matter
hereof. This Agreement may not be modified except by a written instrument duly
executed by the party hereto against whom the modification is sought to be
enforced.
24. Seller Deliveries. The Buyer's obligations hereunder are conditioned
upon the Seller signing and delivering at the Closing such documents as may be
customarily and reasonably requested by the Title Company providing title
insurance to the Buyer and/or the Buyer's lender, including without limitation:
(i) so-called affidavits with respect to mechanic's liens and
parties-inpossession so as to allow Buyer and/or the Buyer's lender to obtain
- 21 -
title insurance policies free from any exceptions for such matters; (ii) a Form
1099-B which shall be filed with the Internal Revenue Service; and (iii) an
affidavit or certificate in compliance with IRC Section 1445(b) (2) and the
regulations promulgated thereunder.
25. Due Authorization. Each person signing this Agreement on behalf of the
Seller and Buyer represents to the other, the same to be true, as of the date
hereof and as of the date of Closing, that the Seller and Buyer have taken all
steps necessary or desirable to authorize the execution and performance of this
Agreement and that upon the execution hereof by that person on behalf of the
Seller and Buyer, this Agreement shall be binding and enforceable upon the
Seller and Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
ATTEST: HMH REALTY COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ XX Xxxxx
--------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxx Name: XX Xxxxx
------------------------- ---------------------------
Title: Asst Secretary Title: Vice President
------------------------ --------------------------
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ATTEST: HMC RETIREMENT
PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ XX Xxxxx
--------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxx Name: XX Xxxxx
------------------------- ---------------------------
Title: Asst Secretary Title: Vice President
------------------------ --------------------------
BUYER:
ATTEST: THE CAREPLEX GROUP, INC
By: /s/ [Illegible] By: /s/ Xxxxxx Xxxxxx
--------------------------- -----------------------------
Name: [Illegible] Name: Xxxxxx Xxxxxx
------------------------- ---------------------------
Title: Vice President Title: President
------------------------ --------------------------
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EXHIBIT A
FORM OF DEEDS
[ATTACHED)
Exhibit A
95-306006 T#001
07-19-95 09:22AM
This instrument prepared by $ 7700.00
and Returned to: DOCU. STAMPS-DEED
Xxxxx X. Xxxxxxx, Esquire RECVD.BROWARD CTY
Host Marriott Corporation B. XXXX XXXXXXXXX
Law Department 72-923
10400 Fernwood Road COUNTY ADMIN.
Xxxxxxxx, Xxxxxxxx 00000-0000
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED made and executed the 25th day of March, 1995 by
HMC Retirement Properties, Inc., (successor by name change to Marriott
Retirement Communities, Inc., and wholly-owned subsidiary of Host Marriott
Corporation), a Delaware corporation having its principal place of business at
00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, hereinafter called grantor,
to
HMH REALTY COMPANY, INC., a Delaware corporation an wholly-owned subsidiary
of Host Marriott Corporation whose address is 00000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, hereinafter called the grantee:
(Wherever used herein the terms "grantor" and "grantee" include all the
parties to this instrument and their successors and assigns).
WITNESSETH: That the grantor, for no consideration, but as part of a
reallocation of assets among wholly-owned subsidiaries of Host Marriott
Corporation, by these presents does grant, bargain, sell, alien, remise,
release, convey and confirm unto the grantee, all that certain land situate in
Broward County, Florida, viz:
Parcel "A", of THE CENTRE OF DEER CREEK, according to the Plat thereof,
recorded in Plat Book 110, Page 3, of the Public Records of Broward County,
Florida.
TOGETHER with all the tenements, hereditaments and appurtenances thereto
belonging or in any way appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
AND the grantor hereby covenants with said grantee that the grantor is
lawfully seized of said land in fee simple; that the grantor has good right and
lawful authority to sell and convey said land, and that the grantor hereby fully
warrants the title to said land and will defend the same against the lawful
claims of all persons claiming by, through or under the grantor.
IN WITNESS WHEREOF, grantor has caused these presents to be executed by its
proper officer thereunto duly authorized, and its seal affixed, the day and
year first above written.
Signed, sealed and delivered HMC RETIREMENT PROPERTIES, INC.,
in the presence of: a Delaware corporation.
/s/ Xxxx X. Xxxxxxx By: /s/ XX Xxxxx
------------------------------- ----------------------------------
Xxxx X. Xxxxxxx Vice President
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Attest:
/s/ Xxxx X. Xxxxxxx By: /s/ [Illegible]
------------------------------- ----------------------------------
Xxxx X. Xxxxxxx [Illegible]
/s/ Xxxx X. Xxxxx
------------------------------- (SEAL)
Xxxx X. Xxxxx
GENERAL WARRANTY DEED
THAT, XXXX X. XXXX, a single woman, (hereinafter called "Grantor"), with
her address at 000 X.X. 0xx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, in
consideration of the sum of TEN AND NO/l00 Dollars ($10.00) and other good and
valuable consideration, cash in hand paid by MARRIOTT RETIREMENT COMMUNITIES,
INC., a Delaware corporation, with its address at 00000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, (hereinafter called "Grantee"), the receipt and sufficiency of
which is hereby acknowledged and confessed, has GRANTED, SOLD AND CONVEYED, and
by these presents does GRANT, SELL and CONVEY unto the said Grantee all that
certain real property together with all improvements situated thereon, located
in Broward County, Florida, to-wit:
SEE EXHIBIT "A" ATTACHED
SUBJECT to any and all valid and subsisting restrictions, easements, right
of ways, mineral and royalty reservations, maintenance charges, zoning law's,
ordinances of municipal
and/or other governmental authorities, conditions and covenants, if any,
applicable to and enforceable against the above-described property legally and
properly of record in the Office of the County Clerk of Broward County, Florida.
TO HAVE AND TO HOLD the above described premises, together with all and
singular the rights and appurtenances thereto in anywise belonging, unto said
Grantee, its successors and assigns forever; and Grantor does hereby bind
itself, its successors and assigns to WARRANT AND FOREVER DEFEND all and
singular the said premises unto the said Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any
part thereof.
The use of any pronoun here into refer to Grantor or Grantee shall be
deemed a proper reference even though Grantor and/or Grantee may be an
individual (either male or female), a corporation, a partnership or a group of
two or more individuals, corporations and/or partnerships and when this deed is
executed by or to a corporation, or trustee, the words "heirs, executors and
administrators" or "heirs and assigns" shall, with respect to such corporation,
or trustee, be construed to mean "successors and assigns".
Grantor warrants and represents that all taxes and assessments against said
Premises for prior years have been paid.
All taxes and assessments incurred, or to be incurred, for the current year
have been prorated to the date hereof and Grantee assumes payment thereof.
EXECUTED this the 21ST day of May, 1990
WITNESSES GRANTOR:
/s/ [Illegible] By: /s/ Xxxx X. Xxxx
-------------------------------- ------------------------------
Xxxx X. Xxxx
/s/ [Illegible]
--------------------------------
STATE OF FLORIDA :
COUNTY OF PALM BEACH : ss:
I hereby certify, that on this 21 day of May, 1990, before me Xxxxx X.
Xxxxxx, personally appeared XXXX X. XXXX, and acknowledged the foregoing
instrument to be his act and executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public
[SEAL]
Xxxxx X. Xxxxxx
------------------------------------
Printed Name of Notary
My Commission Expires: June 24, 0000
XXXXXX XXXXXX XXXXX XX XXXXXXX
MY COMMISSION EXP JUNE 24, 1992
BONDED THRU GENERAL INS. UND.
WHEN RECORDED, RETURN TO: PREPARED BY:
Xxxxx X. Xxx, Esq Xxxxxx X. Xxxxxxxxxx, Esquire
Stuzin and Camner, P.A. Marriott Corporation
000 Xxxxxxxx Xxxxxx Law Department 000
0xx Xxxxx 00000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
[Sketch and Description of Property]
EXHIBIT B-1
MARKED-UP TITLE POLICY
[ATTACHED]
- 24 -
FIRST AMERICAN TITLE INSURANCE COMPANY
Schedule A
Agent's
File No.: 14900.00080/RMG/amw Committment No. FA-CC-05236
Date Issued: December 14, 1995
Date Effective: November 28, 1995 at 5:00 p.m.
2. Policy or Policies to be issued: Amount of Policy: $1,100,000.00
(a) A.L.T.A. Owner's Policy Form (10/17/92) (with Florida Modifications)
Proposed Insured:
(b) A.L.T.A. Loan Policy (10/17/92) Amount of Policy: $
(with Florida Modifications)
Proposed Insured:
3. The estate or interest in the land described or referred to in this
Committment and covered herein is an estate or interest designated as
follows:
Fee Simple
4. Title to the estate or interest in the land described or referred to in
this Committment and covered herein (and designated ad indicated in No. 3
above) is, at the effective date, vested in:
HMH REALTY, INC., a Delaware corporation, as to Parcel 1
HMC RETIRMENT PROPERTIES, INC., a Delaware corporation, as to a portion of
Parcel 2.
5. The land referred to in this Commitment is in the State of Florida, County
of Broward and described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
GUNSTER, YOAKLEY, XXXXXX-XXXXX
& XXXXXXX
BY:_____________________________
Authorized Signatory
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B-I
(Requirements)
Agent's
File No.: 14900.00080/RMG/amw Commitment No. FA-CC-05236
The following are the requirements to be complied with:
1. Payment to, or for the account of, the grantors or mortgagors of the full
consideration for the estate or interest to be insured.
2. Payment of all taxes, assessments, levied and assessed against subject
premises, which are due and payable.
3. Satisfactory evidence shall be produced that all improvements and/or
repairs or alterations thereto are completed; that contractor,
subcontractor, labor and materialmen are all paid in full.
4. Instruments in insurable form which must be properly executed, delivered
and duly filed for record;
(a) Warranty Deed from HMH REALTY, INC., a Delaware corporation, as
to Parcel 1, to the Proposed Insured conveying the subject
property.
(b) Warranty Deed from HMC RETIREMENT PROPERTIES, INC., a Delaware
corporation, as to a portion of Parcel 2, to the Proposed Insured
conveying the subject property.
5. Affidavit of Seller.
6. Proof of payment of the 1995 real estate taxes.
7. Certificate of Good Standing of HMH REALTY, INC., a Delaware corporation.
8. Certificate of Good Standing of HMC RETIREMENT PROPERTIES, INC., a Delaware
corporation.
9. Certificate of Good Standing of the Proposed Insured.
10. Corporate Resolutions of HMH REALTY, INC., a Delaware corporation, and HMC
RETIREMENT PROPERTIES, INC., a Delaware corporation, authorizing and
approving the conveyance of their respective properties.
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B-11
(Exceptions)
Agent's
File No.: 14900.00080/RMG/amw Commitment No. FA-CC-05236
Schedule B of the policy or policies to be issued will contain exceptions to the
following matters unless the same are disposed of to the satisfaction of the
Company.
1. Defacts, liens, encumbrances, adverse claims or other matters, if any,
created, first appearing in the public records or attaching subsequent
to the effective date hereof but prior to the date the proposed
Insured acquires for value of record the estate or interest or
mortgage thereon covered by this Commitment.
2. Rights or claims of parties in possession not shown by the public
records.
3. Easements, or claims of easements, not shown by the public records.
4. Encroachments, overlaps, boundary line disputes, or other matters
which would be disclosed by an accurate or inspection of the premises.
5. Any lien, or right to a lien, for services, labor, or material
heretofore or hereafter furnished, imposed by law and not shown by the
public records.
6. Any adverse claim to any portion of said land which has been created
by artificial means or has accreted to any such portioon so created
and riparian rights, if any. Upon a review of the original government
lot survey showing this property not to be submerged land, this
exception will be deleted.
7. Taxes or special assessments which are not shown as existing liens by
the public records. Upon a review of the records of the county and
local municipality and the payment of any taxes or special
assessments, if any, this exception will be deleted.
8. Taxes for the year 1996 and thereafter.
9. Matter as set forth on the plat of The Centre of Deer Creek, according
to the Plat thereof, recorded in Plat Book 110, Page 3, as amended by
Ordinace No. 1990/006 by the City Commission of the City of Deerfield
Beach, dated February 6, 1990, recorded February, 1990 in Official
Record Book 17159, Page 937, and Resolution recorded in Official
Record Book 17399, Page 383, of the Public Records of Broward County,
Florida.
SEE CONTINUATION SHEET ATTACHED HERETO.
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B-II continued
(Exceptions)
Agent's
File No.: 14900.00080/RMG/amw Committment No. FA-CC-05236
10. Matter as set forth on the Plat of Brighton Gardens/NA-34, according
to the Plat thereof, recorded in Plat Book 149, Page 18, of the Public
Records of Broward County, Florida.
11. Road Right of Way and Utility Easement to the City of Deerfield Beach
recorded in Official Record Book 17791, Page 1, Public Records of
Broward County, Florida.
12. Temporary Grant of Easement to the City of Deerfield Beach recorded in
Official Record Book 17163, Page 98, Public Records of Broward County,
Florida.
13. Declaration of Road Right of Way and Utility Easement to the City of
Deerfield Beach recorded in Official Record Book 17859, Page 932,
Public Records of Broward County, Florida.
14. Grant of Easement to the City of Deerfield Beach recorded in Official
Record Book 17766, Page 102, Public Records of Broward County,
Florida.
15. Grant of Easement to the City of Deerfield Beach recorded in Officia
Record Book 17766, Page 109, Public Records of Broward County,
Florida.
16. Right-of-Way Easement granted to Southern Xxxx Telephone and Telegraph
Company, from Xxxx X. Xxxx, dated August 19, 1976, recorded August 23,
1976 in Official Record 6696, Page 969, Public Records of Broward
County, Florida.
17. Ordinance No. 1989/075 by the City Commission of the City of Deerfield
Beach, dated January 9, 1990, recorded January 12, 1990 in Official
Record Book 17080, Page 983, Public Records of Broward County,
Florida.
18. Survey prepared by Xxxxxxx X. Xxxxxxxx of Consul-Tech Engineering,
Inc., dated August 11, 1989, revised May 26, 1990, prepared Marriott
Retirement Communities, Inc., shows the following: Encroachment of a
three foot concrete sidewalk along approximately the Westerly 97.5
feet of the southern boundary of Parcel II.
EXHIBIT B
EASEMENT AGREEMENT
[ATTACHED]
GRANT OF EASEMENT
THIS GRANT OF EASEMENT is made this ____ day of ____, 1996, between the
City of Deerfield Beach, a municipal corporation organized under the laws of the
State of Florida, hereinafter referred to as the Grantor, and HMC Retirement
Properties, Inc. (successor by name change to MARRIOTT RETIREMENT COMMUNITIES,
INC.,) a Delaware Corporation, having a mailing address of c/o Host Marriott
Corporation, Department 923, 00000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000-0000,
hereinafter referred to as the Grantee.
WITNESSETH:
Grantor, its heirs and assigns, for and in consideration of the sum of One
($1.00) Dollar and other good and valuable consideration to it in hand paid by
the Grantee, receipt whereof is hereby acknowledged, does, by these presents,
grant, convey and confirm unto the Grantee, its agents, successors and assigns,
an exclusive easement, for the purposes below recited through and across the
premises situated in the City of Deerfield Beach, County of Broward, State of
Florida, as is more particularly described on Exhibit A which is attached hereto
and by reference incorporated herein.
The easement granted herein shall cover the right to enter upon the
premises for ingress, egress, parking and the right
to install and maintain landscaping and water and sewer utilities upon the
easement property.
FURTHER PROVIDED THAT, if the Grantee enters the property of the Grantor
pursuant to this Grant of Easement, the Grantee shall exercise its rights
hereunder in a manner reasonably designed to minimize interference with the
Grantor's use of the balance of it property.
FURTHER PROVIDED THAT the Grantor shall not build any structure on the
easement granted herein, except that the Grantor shall have the right to
continue the use of such premises as a pumping station site and for a pumping
station and other utility purposes as may be required by Grantor.
FURTHER PROVIDED THAT should the Grantee or its successors ever abandon use
of the easement area, the easement rights granted shall terminate and revert to
the Grantor.
THIS GRANT OF EASEMENT shall be binding upon and inure to the benefit of
the parties and their respective heirs, successors and assigns.
IN WITNESS WHEREOF, the Grantor has hereunto set its hand and seal the day
and year first hereinabove written.
WITNESSES CITY OF DEERFIELD BEACH
___________________________ By:__________________________
Mayor
___________________________ [Corporate Seal]
ATTEST Approved as to Form
___________________________ __________________________
City Clerk , Esquire
City Attorney
State of Florida )
)SS
County of Broward )
The foregoing was acknowledged before me this ___ day of _____, 1996, by
_________________ and _______________ as Mayor and City Clerk of the City of
Deerfield Beach, a Municipal Corporation organized under the laws of the State
of Florida, on behalf of the Corporation.
___________________________
NOTARY PUBLIC
My Commission expires:
[SEAL]
"OLD SITE"
LEGAL DESCRIPTION:
LIFT STATION (TO BE VACATED)
A parcel of land lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 42 East, Broward
County, Florida, and being more particularly described as follows:
COMMENCE at the intersection of the Northerly Right-of-way line of Hillsboro
Boulevard (S.R. No. 810), as recorded in the Official Records Book 2647, Pages
417, 427 and 429, also recorded in the Official Records Book 8022, Page 57 of
the Public Records of Broward County, Florida, and the Easterly line of said
Section 3, as shown on the Plat of "The Centre of Deer Creek" as recorded in
Plat Book 110, Page 3 of the Public Records of Broward County, Florida, and
labeled as (P.O.B);
thence South 89 (degrees) 01' 08" West, along the Southerly line of Parcel "A"
and Parcel "B" of said Plat and said Northerly Right-of-way line, a distance of
129.17 feet to the Point of Curvature of a curve concave to the North having a
radius of 5669.58 feet;
thence along the arc of said curve to the right, through a central angle of
00(degrees) 22' 14", a distance of 36.66 feet to the POINT OF BEGINNING;
thence North 01(degrees) 13' 06" West, a distance of 43.82 feet;
thence South 88 (degrees) 41' 59" West, a distance of 50.00 feet;
thence South 01(degrees) 13' 06" East, to the aforesaid Northerly Right-of-way
line, a distance of 43.00 feet to a point on a non-tangent curve concave to the
North, having a radius of 5669.58 feet (radial bearing of North 00(degrees) 06'
19" West);
thence along the arc of said curve to the left, through a central angle of
00(degrees) 30' 19", along said Northerly Right-of-way line, a distance of 50.00
feet to the POINT OF BEGINNING.
Situated, lying and being in the City of Deerfield Beach, Broward County,
Florida.
Containing 2172 square feet or 0.0499 acres more or less.
EXHIBIT "A", Sheet 1 of 2
[This page is a sketch and description of the survey.]
