EXHIBIT 10.107
ASSIGNMENT AGREEMENT
(Boynton Beach, Florida)
THIS ASSIGNMENT AGREEMENT made this 3rd day of July, 1996, by and between
CareMatrix of Massachusetts, Inc. (f/k/a CareMatrix Corporation), a Delaware
corporation ("Assignor"), and Chancellor of Massachusetts, Inc., a Delaware
corporation ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor is negotiating a Purchase Agreement (the "Purchase
Agreement") relating to a certain parcel of land located in Boynton Beach,
Florida (the "Land"), a copy of the most recent draft of which is attached
hereto as Exhibit A;
WHEREAS, Assignor intends to develop the Land for an assisted/independent
living facility consisting of approximately one hundred forty-eight (148)
units (the "Project");
WHEREAS, upon the completion of construction of the Project, Assignor
intends to provide operational management services for the Project; and
WHEREAS, upon execution of the Purchase Agreement, Assignor desires to
assign its rights and obligations under the Purchase Agreement to Assignee,
and 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. Upon execution of the Purchase Agreement, Assignor hereby agrees to
assign, set over and transfer unto Assignee to have and to hold from
and after such date, all of the right, title and interest of Assignor
in, to and under the Purchase Agreement, and Assignee agrees to accept
such assignment and to assume and agree 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 such assignment, in
the same manner and with the same force and effect as if Assignee had
originally executed the Purchase Agreement.
2. 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.
3. 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.
4. Assignor agrees to indemnify and hold harmless Assignee from and
against any and all Claims (as defined in paragraph 6 hereof) accruing
or arising under the Purchase Agreement on or before the date of such
assignment.
5. 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 of such assignment.
6. For the purposes of this Agreement, the term "Claims" means all costs,
claims, obligations, damages, penalties, losses, injuries, liabilities
and expenses (including, without limitation, reasonable legal fees and
expenses).
7. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date and year first above written.
ASSIGNOR:
CAREMATRIX OF MASSACHUSETTS, INC.
By: /s/
---------------------
Name:
Title:
ASSIGNEE:
CHANCELLOR OF MASSACHUSETTS, INC.
By: /s/
----------------------
Name:
Title:
REAL ESTATE
PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made and entered into
as of this ---- day of June, 1996 by DASCO DEVELOPMENT CORPORATION, a Florida
corporation, having an office at 0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Seller"), and CAREMATRIX
CORPORATION, a Delaware corporation, or its nominee, having an office at 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called "Buyer").
W I T N E S S E T H:
WHEREAS, Seller has entered into a certain Real Estate Purchase Agreement
dated as of February 26, 1996 (the "Sunbelt Agreement"), with SUNBELT
PROPERTIES, LTD., an Illinois limited partnership ("Sunbelt"), pursuant to
which Seller has agreed to purchase a certain parcel of real property located
in Palm Beach County, Florida, which real property is legally described on
Exhibit "A" attached hereto (the "Commercial Tract"); and
WHEREAS, Seller is desirous of selling a portion of the Commercial Tract,
consisting of approximately ------------ acres and generally identified on
the proposed site plan attached hereto as Exhibit "B" together with all
easements and rights of way appurtenant thereto (the "Property"), upon the
terms and conditions hereinafter set forth; and
WHEREAS, Buyer is desirous of purchasing the Property upon the terms and
conditions hereinafter set forth; and
WHEREAS, Seller and Buyer have accordingly agreed that, simultaneously
with closing by Seller on the Commercial Tract, Seller shall convey title to
the Property to Buyer, all in accordance with the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10) and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by each party, and in consideration of the mutual covenants,
conditions and promises herein contained, the parties hereby agree as
follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. Sale of Property; Purchase Price.
(a) Seller agrees to sell and convey the property to Buyer, and Buyer
agrees to purchase the Property from Seller, but strictly upon the terms and
conditions hereinafter set forth. Not later than fifteen (15) days prior to
"Closing" (as hereinafter defined), Seller will furnish to Buyer a legal
description and survey of the Property (the "Survey") certified by a surveyor
registered and licensed in the State of Florida, which Survey shall be
subject to approval of Buyer who will not unreasonably withhold its consent).
The Survey shall be certified to Seller and
Buyer, and must meet or exceed the minimal technical standards of land
surveying set forth by the Florida Board of Land Surveyors pursuant to
Section 21HH-6, Florida Administrative Code. Approval or disapproval of the
Survey shall be communicated in the manner provided for notices in this
Agreement, and disapproval shall be accompanied by specification of the
grounds for disapproval. Buyer's failure to disapprove the Survey within five
(5) days after actual receipt of same shall be deemed to constitute Buyer's
approval thereof. The legal description of the Property as shown on the
approved Survey shall be legal description of the Property for all purposes
of this Agreement. The cost of the Survey shall be paid at Closing by Buyer.
(b) The purchase price for the Property shall be TWO MILLION TWO HUNDRED
THIRTY SIX THOUSAND AND 00/100 DOLLARS ($2,236,000.00) (the "Purchase
Price"). Subject to any prorations required by this Agreement, the Purchase
Price shall be paid by Buyer to Seller in cash equivalent at Closing as
provided herein.
3. Title Insurance and Survey.
(a) Simultaneously with the execution of this Agreement, Seller has
provided to Buyer a copy of the title insurance commitment for the Commercial
Tract provided to Seller by Sunbelt, together with any available copies of
exceptions to title. Buyer shall obtain an owner's marketable title insurance
commitment issued by a recognized title insurance company acceptable to
Buyer. The owner's marketable title policy premium and title search fee shall
be paid by Buyer at the Closing.
(b) If the status of title as shown in the title commitment or the survey
contains any defects to which Buyer objects, Buyer shall advise Seller in
writing, not later than ten (10) days prior to closing (except with respect
to any defects shown in any updates thereafter), of the defects to which
Buyer objects. Seller shall have a reasonable time, not to exceed thirty (30)
days, in which to cure the defects and the Closing shall be extended
accordingly. If, after the expiration of said thirty (30) day cure period,
the title defects have not been cured, then Buyer shall have the option of
(i) accepting title; or (ii) terminating this Agreement by written notice to
Seller, whereupon neither party shall have any further rights or obligations
under this Agreement. Without limiting Buyer's rights hereunder, Seller shall
eliminate at Closing any mortgages, liens or other encumbrances affecting the
Property which may be removed or satisfied by the payment of a liquidated sum
of money.
4. Inspection; Option of Buyer to Terminate.
(a) Following the execution and delivery of this Agreement by both Buyer
and Seller, Seller hereby agrees to provide Buyer with access to the
Property, so that Buyer can conduct such inquiries, tests, measurements or
other investigations as it desires or deems necessary related to the
condition of the Property or the development of the Project (as defined
below), including (without limitation) financial studies and analyses,
surveys, engineering tests, soil borings or tests for the presence of toxic
or hazardous substances, all subject to the terms and conditions of the
Sunbelt Agreement. Further, Buyer and its attorneys, agents and
representatives shall have the right to review and inspect copies of all
permits, plans, surveys, and other such materials in Seller's possession with
respect to the Property. Seller shall deliver copies of the same to Buyer
promptly after the execution hereof.
(b) Buyer shall not damage the Property or the Commercial Tract or any
improvement thereon, and shall indemnify Seller and Sunbelt for any damage
resulting from any such inquiry, test, measurement, or other investigation
for a period of one (1) year following the Closing or earlier termination
hereof. In connection with such activity, Buyer
shall not permit any mechanic's lien to be filed against the Property or the
Commercial Tract and, if such a mechanic's lien is filed, Buyer shall, upon
receipt of written notice from Seller, promptly cause such lien to be
discharged or transferred to bond, provided Buyer requested the work upon
which the lien is based. Buyer shall maintain, or require that each agent of
Buyer coming on to the Property maintain, liability insurance with respect to
the activities conducted by Buyer pursuant hereto, in amounts, and with
insurers, reasonably acceptable to Seller and Sunbelt, and shall provide
evidence thereof to Seller and Sunbelt upon request.
(c) Notwithstanding the foregoing, Buyer's obligation to close under this
Agreement shall be contingent on final site plan review and the receipt of
all permits, approvals and consents necessary for the development and
construction of a minimum of ---- units of assisted/independent living (the
"Project") including, the expiration of all appeal periods without an appeal
having been filed. If such approval is not obtained on or before the Closing,
Buyer shall have the right to terminate this Agreement by giving written
notice to Seller on or before the Closing, as the same may be extended as
provided below.
5. Closing Date. The Purchase Price shall be paid to Seller, and Seller
shall deliver to Buyer the Deed and other closing papers (the "Closing"), on
a date selected by Buyer, by five (5) days prior notice to Seller, not later
than December 31, 1996, subject to extension by Buyer, by written notice to
Seller on or before the then scheduled date of Closing if the approval
provided for under Section 4(c) above has not been obtained by such date.
Notwithstanding the foregoing, Seller shall in no event be required to close
under this Agreement prior to the date on which Seller closes with Sunbelt on
the Commercial Tract, and if Sunbelt fails or refuses to close on the
Commercial Tract for any reason, Seller shall be under no obligation to
convey the Property to Buyer.
6. Deed/Closing. At Closing, Seller shall deliver to Buyer a special
warranty deed (the "Deed"), conveying good and marketable title to the
Property, subject only to: (i) taxes not yet due and payable for the year of
Closing and subsequent years; (ii) zoning and governmental regulations; (iii)
those other exceptions to title reflected in the title commitment as provided
in Section 3 hereof. The transactions contemplated by this Agreement shall be
closed at the offices of Seller or, in lieu thereof, by correspondence
through the title agent on the date as determined in Section 5 hereof. Seller
shall pay state documentary stamps on the Deed and any surcharges with
respect thereto. Buyer shall pay recording costs of the Deed. Notwithstanding
the foregoing, Seller, at its option, may assign to Buyer the right to
receive a conveyance of the Property directly from Sunbelt simultaneously
with conveyance of the balance of the Commercial Tract from Sunbelt to
Seller, and in such event Buyer agrees to (a) accept a special warranty deed
to the Property from Sunbelt in the form prescribed in the Sunbelt Agreement,
(b) execute a partial assignment and assumption agreement with Seller with
respect to the Sunbelt Agreement, which shall be in form reasonably
acceptable to Seller, Buyer, and Sunbelt, and (c) pay to Sunbelt the portion
of the purchase price for the Commercial Tract allocated by Seller to the
Property (which shall not exceed the Purchase Price), and pay to Seller, as
the price for the partial assignment of the Sunbelt Agreement to Buyer, the
difference between the Purchase Price and the amount so paid by Buyer to
Sunbelt.
7. Taxes. Real estate taxes on the Property shall be prorated between
Seller and Buyer as of the date of Closing, based on the most discounted
current year's taxes, or if unknown, based on the preceding year's taxes. At
the request of either party, taxes shall be reprorated when the actual tax
bills for the year of Closing are available. Assessments that have been
certified or as to which the work has commenced as of the date of Closing
shall be the obligation of Seller, and if the amount thereof is unknown it
shall be estimated at Closing based on available information from
governmental authorities. All maintenance charges or other pass through
expenses imposed on the Property shall be prorated in the same manner as real
estate taxes.
8. Condemnation. In the event that, between the date of this Agreement and
Closing, any condemnation or eminent domain proceedings are initiated or
threatened which result in the taking
of any portion of the Property, Buyer may elect to (i) terminate this
Agreement, whereupon neither party shall have any further rights or
obligations under this Agreement; or (ii) consummate this transaction with no
reduction in the Purchase Price, in which case Seller shall deliver to Buyer
at Closing a duly executed assignment of Seller's interest in any award made
or to be made with respect to the Property in connection with such
condemnation or eminent domain proceedings.
9. Representations and Warranties. As a material inducement to Buyer to
execute this Agreement and to close the transaction contemplated hereby,
Seller hereby represents and warrants to Buyer as follows:
(a) To the best of Seller's knowledge without investigation, there is no
pending or threatened litigation, investigation or claim which materially
adversely affects, or which might materially adversely affect, the Property.
(b) To the best of Seller's knowledge without investigation, there is no
condemnation or eminent domain proceeding pending with respect to any portion
of the Property, and Seller has received no notice of any pending or
contemplated condemnation or eminent domain proceeding which could affect any
portion of the Property.
(c) To the best of Seller's knowledge without investigation, no assessment
for public improvements or otherwise has been made against the Property,
which assessment remains unpaid if due.
(d) No notice of any violation of any regulation, law, statute or
ordinance with respect to the Property has been received by Seller, nor, to
the best of Seller's knowledge without investigation, has any such notice
been received by Sunbelt.
(e) The Property is included within the concurrency exemption identified
as Case No. 02-06-002-X1.
(f) Seller is not aware that, and has not received any notice to the
effect that, any Hazardous Materials have been spilled, deposited, disposed
of, released or transported in or on the Property or any other property
adjacent or proximate thereto. Further, to the best of Seller's knowledge
without investigation, Sunbelt is not aware that, and has not received any
notice to the effect that, any Hazardous Materials have been spilled,
deposited, disposed of, released or transported in or on the Property or any
other property adjacent or proximate thereto.
10. Offer and Acceptance. Once executed and delivered by Buyer, this
Agreement shall constitute an offer to purchase the Property upon the terms
and conditions set forth herein. This offer must be accepted by Seller's
execution and delivery of this Agreement to Buyer on or before 5:00 P.M. on
June 24, 1996. If not so accepted by such time, this Agreement shall be of no
further force and effect, and neither party shall have any rights or
obligations with respect to the other.
11. Notices. All notices, requests and other communications under this
Agreement shall be in writing and sent by hand delivery, U.S. registered or
certified mail, postage prepaid and return receipt requested, or overnight
courier service addressed as follows:
If intended for Seller: Dasco Development Corporation
0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Executive VP - Operations
With a copy to: Xxxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If intended for Buyer: Carematrix Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Xx. Vice President
With a copy to: Xxxxx X. Xxxxx, III, Esq.
General Counsel/Executive Vice President
Carematrix Corp.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Notice shall be deemed received upon actual receipt if by hand delivery,
three (3) days after mailing, or one (1) day after delivery to a
nationally-recognized overnight courier service.
12. Brokers. Seller and Buyer represent and warrant to each other that
they have not dealt with any broker, finder or other intermediary in
connection with the transaction contemplated by this Agreement. Any
commission or other compensation payable to such agent shall be borne solely
by Seller. Each party hereby agrees to indemnify, save and hold harmless the
other party from and against any and all losses, damages, claims, costs and
expenses (including attorney's fees and expenses) in any way resulting from
or connected with any claims or suite for a broker's commission, finder's fee
or other like compensation, made or brought by any other person claiming to
have dealt with the first party.
13. Default. In the event that Buyer or Seller defaults under this
Agreement, the other party shall have, as its sole remedy, the right to
obtain specific performance of this Agreement.
14. Withholding. Seller acknowledges that, unless Seller certifies to
Buyer Seller's non-foreign status as provided under Section 1445 of the
United States Internal Revenue Code of 1986, as amended, Buyer will be
required at Closing to withhold and remit to the Internal Revenue Service a
portion of the Purchase Price. Any such withholding by Buyer in accordance
with law shall in no event be deemed a breach of this Agreement.
15. Assignment. This Agreement may be assigned by Buyer to any
corporation, partnership, trust or other entity in which Buyer Xxxxxxx X.
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx or any shareholder of Buyer directly or
indirectly (or collectively) owns a controlling interest or, with respect to
a trust, is a trustee or any descendant thereof is a beneficiary.
16. Invalidity. In the event any provision contained herein shall for any
reason be held to be inapplicable, invalid, illegal, or unenforceable in any
respect, such inapplicability, invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and this Agreement
shall be construed as if such provision had never been contained herein.
17. Entire Understanding; Waiver. This Agreement, together with the
exhibits hereto, contains the entire understanding between the parties hereto
and may not be changed or terminated orally. Any waiver by any party of any
provision of this Agreement or breach thereof shall not operate or be
construed as a waiver of any other provision or subsequent breach thereof.
18. Florida Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without regard to principles
regarding conflicts of law.
19. Captions. The captions of the various paragraphs of this Agreement
have been inserted for the purpose of convenience only; such captions shall
not be deemed in any manner to modify, explain, enlarge or restrict any of
the provisions of this Agreement.
20. Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
22. Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provisions of
this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorney's fees, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, costs and expenses incident to appeals), incurred in that action or
proceeding, in addition to any other relief to which such party or parties
may be entitled.
23. Interpretation. The terms of this Agreement have been negotiated by
the parties, and this Agreement shall not be construed or interpreted more
strictly against one party than another on the grounds that the Agreement or
any draft thereof was prepared by a party or its counsel.
24. Relationship. Nothing contained in this Agreement shall constitute or
be construed to be or create a partnership, joint venture or any other
relationship between Seller and Buyer other than the relationship of a buyer
and seller of rights to real property as set forth in this Agreement.
25. Radon. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
26. Time of Essence. Time is of the essence of each covenant and
obligation of each party to this Agreement.
27. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida. Therefore,
each of the parties irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding arising out of or relating to this Agreement shall
be brought in the courts of record of the Xxxxx xx Xxxxxxx xx Xxxx Xxxxx
Xxxxxx; (b) consents to the jurisdiction of such court in any such suit,
action or proceeding; and (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in such court.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand and seals
as of the date first written above.
WITNESS: SELLER:
DASCO DEVELOPMENT CORPORATION, a
Florida corporation
____________________ By:_________________________
____________________ Its: _________________________
WITNESS: BUYER:
CAREMATRIX CORPORATION, a
Delaware corporation
____________________ By: _________________________
____________________ Its: _________________________
Exhibits:
Exhibit "A" - Legal Description of Commercial Tract
Exhibit "B" - Legal Description of Property
