AMENDMENT TO PURCHASE AND SALE AGREEMENT
Exhibit 10.3
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is entered into effective as of August 19, 2013, between RR AL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership (“RR AL”), and RR IL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership (“RR IL”; and together with RR AL, the “Sellers”), and CHP PARTNERS, LP, a Delaware limited partnership (“Purchaser”).
RECITALS
A. Sellers and Purchaser have entered into a Purchase and Sale Agreement, dated as of July 3, 2013 (the “Agreement”), with respect to certain properties defined therein as the “Club at Raider Ranch” and the “Isle at Raider Ranch” (these, and other initially capitalized terms used in this Amendment without definition shall have the same meanings ascribed to such terms in the Agreement).
B. Following the Effective Date of the Agreement, RR AL was named as a defendant in that certain lawsuit known as Xxxxxxxx XxXxxxxx v. Brookdale Senior Living, et al., Cause No. 20135078885, in the 000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx, relating to events that allegedly occurred at the Isle at Raider Ranch.
C. RR IL is the “Apartment Owner” as described in that certain Declaration of Covenants, Conditions and Restrictions for Villas at Raider Ranch recorded as instrument number 2008043899 in the Official Records of Lubbock County, Texas (the “Declaration”), and in connection with the purchase and sale contemplated by the Agreement, RR IL has agreed to assign all of its rights, title, and interest as “Apartment Owner” under the Declaration to Purchaser.
X. Xxxxxxx have agreed to escrow the estimated cost to replace the fencing surrounding the pool area at the Club at Raider Ranch.
E. Accordingly, Sellers and Purchaser now wish to modify the terms of the Agreement as set forth in this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing recitals, which are incorporated herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged,
Purchaser and Seller agree as follows:
1. Retained Liabilities. The last sentence of Section 2.6 of the Agreement is hereby deleted and replaced with the following:
“Further, all liabilities, claims, and obligations related to or incurred by RR AL in connection with that certain litigation known as Xxxxxxxx XxXxxxxx v. Brookdale Senior Living, et al., Cause No. 20135078885, in the 000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx (the “Litigation”), shall be a Retained Liability of RR AL. RR AL
hereby agree to indemnify, defend, protect, and hold harmless Purchaser, its affiliates, owners, members, partners, employees, lenders, agents, and representatives, from and against any and all claims relating to the Litigation (such indemnification obligation to terminate at such time as RR AL and Raider Ranch L.P. are no longer parties to the Litigation (provided that at such time Purchaser has incurred no liability, loss, or expense in connection with the Litigation), provided, however, that if RR AL and/or Raider Ranch L.P. are ever added back to the Litigation, the indemnity set forth herein shall again be operative from the date that RR AL and/or Raider Ranch L.P. are added back to the litigation until RR AL and Raider Ranch L.P. are once again no longer parties to the Litigation. The terms of this Section 2.6 shall survive Closing.”
2. Assignment of Apartment Owner’s Rights. The following is hereby added to the Agreement as Section 7.2(v):
“(v) RR IL shall execute and deliver to Purchaser an Assignment and Assumption of Apartment Owner’s Rights in the form attached hereto as Exhibit 7.2(v).”
3. Exhibit 7.2(v). Exhibit 7.2(v) attached hereto is hereby added to the Agreement as Exhibit 7.2(v) thereof.
4. Replacement Fencing. Sellers hereby agree to escrow with the Title Company, pursuant to an escrow agreement reasonably acceptable to the parties thereto (the “Fence Escrow Agreement”), at Closing the amount of Fifteen Thousand Eight Hundred and No/100ths Dollars ($15,800.00) (the “Pool Escrow”), which Manager shall use to replace the existing fencing surrounding the pool area (the “Pool Fencing”) at the Club at Raider Ranch following Closing. The Pool Escrow shall be Seller’s sole obligation with respect to the condition and replacement of the Pool Fencing. Upon the Manager causing the lien free completion of the replacement of the Pool Fencing in accordance with all requirements under applicable laws, regulations and ordinances and receiving payment therefor in accordance with the terms of the Fence Escrow Agreement, any remaining balance in the Fence Escrow shall be returned to Sellers.
5. Due Diligence Period and Additional Deposit. Purchaser hereby confirms that the Due Diligence Period expires as of 5:00 p.m. (Eastern Time) on the date hereof, and that Purchaser has elected to proceed to Closing upon the terms and conditions set forth in the Purchase Agreement. Accordingly, Purchaser waives its right to deliver a Termination Notice as set forth in Section 2.3 of the Purchase Agreement and confirms its obligation to deliver the Additional Deposit to Escrow Agent on or before Tuesday, August 20, 2013.
6. Miscellaneous: Except as expressly modified herein, the Agreement remains in full force and effect and Purchaser and Seller ratify and affirm the Agreement as modified herein. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute the same instrument. This Amendment may be executed via facsimile or by “PDF scanned signature” and that facsimile or PDF shall be deemed an original for all purposes. If a provision of this Amendment conflicts with a provision of the Agreement, this Amendment shall supersede and control. All capitalized terms and phrases used
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in this Amendment, if not defined in this Amendment, shall have the same meaning as assigned to them in the Agreement.
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| SELLERS:
RR AL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership | ||||
| By: | RR Care Gen-Par, L.L.C., a Delaware limited liability company, its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Xxxxx X. Xxxxxxxxx Manager | ||||
| RR IL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership | ||||
| By: | RR Care Gen-Par, L.L.C., a Delaware limited liability company, its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Xxxxx X. Xxxxxxxxx Manager | ||||
S-1
Signature Page to Amendment to Purchase Agreement (Raider Ranch)
| PURCHASER:
CHP PARTNERS, LP, a Delaware limited partnership | ||||||
| By: | CHP GP, LLC, a Delaware limited liability company, its General Partner | |||||
| By: | CNL Healthcare Properties, Inc., a Maryland corporation, its sole member | |||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Vice President | |||||
S-2
Signature Page to Amendment to Purchase Agreement (Raider Ranch)
EXHIBIT 7.2(v)
ASSIGNMENT AND ASSUMPTION OF APARTMENT OWNER’S RIGHTS
| THE STATE OF TEXAS | § | |
| § | ||
| COUNTY OF LUBBOCK | § |
THIS ASSIGNMENT AND ASSUMPTION OF APARTMENT OWNER’S RIGHTS (this “Assignment”) is made as of , 2013 (the “Effective Date”), by and between RR IL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership (“Assignor”), and CHP RAIDER RANCH TX OWNER, LLC, a Delaware limited liability company (“Assignee”).
Recitals:
A. The Declaration of Covenants, Conditions and Restrictions for Villas at Raider Ranch was recorded under Document No. 2008043899 in the Real Property Records of Lubbock County, Texas (the “Records”) and was amended by the First Amendment to Declaration of Covenants, Conditions and Restrictions for Villas at Raider Ranch which was recorded under Document No. 0000000000 in the Records and the Second Amendment to Declaration of Covenants, Conditions and Restrictions for Villas at Raider Ranch which was recorded immediately prior to this Assignment in the Records (as amended, the “Declaration”). Capitalized terms used but not defined in this Assignment shall have the meanings ascribed to them in the Declaration.
B. Pursuant to the Purchase and Sale Agreement dated as of July 3, 2013, by and among Assignor, as seller, and CHP Partners, LP, a Delaware limited partnership (“Original Purchaser”), as purchaser, as such Purchase and Sale Agreement may be amended from time to time (collectively, “Purchase Agreement”), and as such Purchase Agreement was assigned, pursuant to the Assignment of the Purchase Agreement dated as of , 2013, by Original Purchaser to Assignee and other parties listed therein, Assignor is conveying to Assignee that certain assisted living facility commonly known as the Club at Raider Ranch, as more particularly described in the Purchase Agreement (the “Property”). In connection with the transfer of the Property, Assignor is assigning to Assignee its rights as Apartment Owner under the Declaration.
NOW THEREFORE, in consideration of the foregoing premises, of TEN and NO/100 DOLLARS ($10.00) in hand paid by Assignee, and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby grants, transfers, assigns, delivers and conveys to Assignee as of the Effective Date, all of Assignor’s right, title and interest as Apartment Owner pursuant to the Declaration. Assignor remains responsible for all liabilities and obligations as Apartment Owner pursuant to the Declaration which accrue and/or relate to the period prior to the Effective Date.
Exhibit 7.2(v)-1
2. Assumption. Assignee hereby assumes, and agrees to be bound by, all obligations and liabilities of Assignor as Apartment Owner under the Declaration which shall arise or be incurred, or which are required to be performed, on and after the Effective Date.
3. Indemnities. Assignor hereby agrees to indemnify, defend and hold Assignee harmless from and against any and all losses, damages, liabilities and expenses (including reasonable attorneys’ fees, court costs and litigation expenses) which Assignee may suffer, sustain or incur in connection with or with respect to the obligations, if any, of Apartment Owner to the Villa Owners pursuant to the Declaration which accrue prior to the Effective Date. Assignee hereby agrees to indemnify, defend and hold Assignor harmless from and against any and all losses, damages, liabilities and expenses (including reasonable attorneys’ fees, court costs and litigation expenses) which Assignor may suffer, sustain or incur in connection with or with respect to the obligations, if any, of Apartment Owner to the Villa Owners pursuant to the Declaration which accrue on or subsequent to the Effective Date.
4. Modification. This Assignment may not be modified except in a writing signed by both parties.
5. Binding Effect. This Assignment shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns.
6. Applicable Law. This Assignment shall be governed by, and construed in accordance with, the laws of the State of Texas.
7. Recitals. The recitals are herein incorporated into this Assignment.
8. Counterparts. This Assignment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.
9. Further Assurances. Each party agrees to execute and deliver to the other party other or further assurances of the provisions of this Assignment as the other party may from time to time reasonably request.
[Signatures appear on the following page]
Exhibit 7.2(v)-2
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and Assumption as of the Effective Date.
| ASSIGNOR:
RR IL CARE GROUP LIMITED PARTNERSHIP, a Delaware limited partnership | ||||
| By: | RR Care Gen-Par, L.L.C. a Delaware limited liability company, its general partner | |||
| By: | ||||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Manager | |||
| STATE OF TEXAS | § | |
| § | ||
| COUNTY OF DALLAS | § |
BEFORE ME, the undersigned, a Notary Public in and for the State of Texas, on the day of , 2013, personally appeared Xxxxx X. Xxxxxxxxx, Manager of RR Care Gen-Par, L.L.C., a Delaware limited liability company, the General Partner of RR IL Care Group Limited Partnership, a Delaware limited partnership, and acknowledged that he executed the foregoing document on behalf of said company and limited partnership.
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| Notary Public |
My Commission Expires:
Exhibit 7.2(v)-3
| ASSIGNEE:
CHP RAIDER RANCH TX OWNER, LLC, a Delaware limited liability company | ||
| By: | ||
| Name: | ||
| Title: | ||
| STATE OF _________ | § | |
| § | ||
| COUNTY OF _________ | § |
BEFORE ME, the undersigned, a Notary Public in and for the State of , on the day of , 2013, personally appeared , of CHP Raider Ranch TX Senior Housing Owner, LLC, a Delaware limited liability company, and acknowledged that he executed the foregoing document on behalf of said company.
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| Notary Public |
My Commission Expires:
Exhibit 7.2(v)-4
