EXHIBIT 10.140
ASSIGNMENT AGREEMENT
(Jensen 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 has entered into that certain Purchase Agreement (the
"Purchase Agreement"), dated February 27, 1996, relating to a certain parcel
of land located in Jensen Beach, Florida (the "Land"), a copy 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 sixty-eight (168)
units (the "Project");
WHEREAS, upon the completion of construction of the Project, Assignor
intends to provide operational management services for the Project; and
WHEREAS, 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. 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.
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.
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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 hereof.
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 hereof.
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:
Exhibit A
173269.6
16204.00002
PURCHASE AND SALE AGREEMENT
AGREEMENT made as of the 27th day of February, 1996 by and between THE
CAREPLEX GROUP, INC., a Delaware corporation (including any and all nominees
permitted hereunder, "Buyer"), having an address at 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000 and FLORIDA INSTITUTE OF TECHNOLOGY, INC., a
Florida not for profit corporation ("Seller"), having an address at 000 X.
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxx,
Vice President and Treasurer.
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer and Seller hereby agree as follows:
1. AGREEMENTS TO SELL AND PURCHASE; DESCRIPTION OF PROPERTY; NOMINEE.
(a) Purchase and Sale. Seller agrees to convey to Buyer and Buyer hereby
agrees to purchase from Seller, for the price and upon the terms and
conditions set forth herein, the following:
(i) The land located to the west of Xxxxxx'x Point Road, Xxxxxx County,
Florida, described on Exhibit 1(a) attached hereto and made a part hereof,
and all easements and rights of way appurtenant to such land, and all of
Seller's right, title and interest in and to any alleys, strips and gores
abutting or adjoining such land and in and to any highways, streets, roads,
accesses and ways appurtenant to or abutting or adjoining the Land
(collectively, the "Land"); and
(ii) all buildings, structures and other improvements, if any, located
on the Land (collectively, the (Improvements"); and
(iii) to the extent that such items are in Seller's possession or
control, all documents, technical matter and work product of all
professionals and paraprofessionals relating to the Land an/or the
development thereof, including, without limitation, all agreements,
approvals, permits and the like with or from governmental or quasi
governmental authorities and all architectural, construction, engineering and
landscaping drawings, plans and specifications and all surveys, maps, site
plans, plats and other graphics relating to the Land and/or the Improvements
(collectively, the "Development Work Product"). Notwithstanding the
foregoing, Development Work Product shall not include (i) any item subject to
attorney-client privilege or work product privilege, (ii) any item which is
the subject of a written confidentiality agreement between Seller and an
unrelated third party or written instructions from an unrelated third party
or (iii) any item which inextricably relates to both the Land and property
adjacent to the Land owned by Seller.
The Land, Improvements and Development Work Product are, collectively,
referred to as the "Property".
(b) Intended Use. Seller understands and acknowledges that Buyer intends
to develop and use the Property as a senior housing development consisting of
168 independent and/or assisted living units, as well as related
improvements, parking and landscaping (the "Intended Use").
(c) Nominee. Seller acknowledges and agrees that Buyer shall have the
right to designate a nominee to take title to the Property by notice to
Seller given not later than the Closing Date (as defined below). Any entity
in which the principals or affiliates of Buyer own or control, directly or
indirectly, at least 50% of the stock, partnership interests or beneficial
interests, as the case may be, or any master limited partnership or real
estate investment trust organized by Buyer or any of the principals or
affiliates of Buyer, will be deemed a nominee for the purposes of this
Section.
2. PURCHASE PRICE; DEPOSIT; ADJUSTMENTS; ESCROW.
(a) Purchase Price: The agreed purchase price for the Property (the
"Purchase Price") is ONE MILLION THREE HUNDRED FIFTY THOUSAND and NO/100
DOLLARS ($1,350,000.00), which Purchase Price shall be payable as follows:
(i) a deposit (the "Initial Deposit") in the amount of FIFTY THOUSAND
and NO/100 DOLLARS ($50,000.00) has been paid to Escrow Agent by Buyer prior
to the date hereof, and is to be delivered to Seller by the Escrow Agent at
the time of delivery and recording of the Deed (as defined below);
(ii) an additional deposit (the "Additional Deposit") (the Initial
Deposit and the Additional Deposit are sometimes hereinafter collectively
referred to as the Deposit) in the amount of FIFTY THOUSAND and NO/100
DOLLARS ($50,000.00) shall be delivered to the Escrow Agent by Buyer upon
delivery to Buyer of a fully executed copy of this Agreement, and is to be
delivered to Seller by the Escrow Agent at the time of delivery and recording
of the Deed; and
(iii) the outstanding balance of ONE MILLION TWO HUNDRED FIFTY THOUSAND
and NO/100 DOLLARS ($1,250,000.00) is to be paid by Buyer to Seller at the
time of delivery and recording of the Deed (as defined below) by cashier's or
bank check or checks or by wire transfer, as Seller shall elect.
(b) Deposit.
(i) The Deposit shall be held in an interest-bearing escrow account as
provided in Section 2(d) below, subject to the terms of this Agreement, and
shall be duly accounted for at the Closing (as defined below). All interest
on the Deposit is to be accounted for and shared equally between Buyer and
Seller if the Closing occurs; or paid to Buyer if the Deposit is returned to
Buyer under the terms of this Agreement; or if Seller shall retain the
Deposit under the provisions of Section 8(b) hereof, then the entire amount
of the interest shall be paid to Seller.
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(ii) If Buyer exercises any of Buyer's options to terminate this
Agreement as provided herein, then the Deposit and all other payments made to
Seller by Buyer hereunder shall be promptly refunded in full by Seller to
Buyer, but in no event later than fourteen (14) calendar days after such
notice of termination is given.
(c) Adjustments; Prorations; Credits. The Purchase Price shall be adjusted
to reflect the following:
(i) Water and sewer use charges, charges for electricity, gas and other
utilities, operating expenses and collected rents, if any, and real property
taxes with respect to the Property for 1996 (with full discounts) shall be
apportioned as of the Closing Date, and the net amount shall be added to or
deducted from the Purchase Price, as the case may be. Seller shall pay real
property taxes with respect to the Property for all years prior to 1996.
Without limiting the effect of the foregoing provisions regarding
apportionment, in the event the closing of the transaction contemplated by
this Agreement closes on or before October 31, 1996, Buyer shall pay the real
property taxes with respect to the property for 1996. Without limiting the
effect of the foregoing provisions regarding apportionment, in the event the
closing of the transaction contemplated by this Agreement closes after
October 31, 1996, Seller shall pay real property taxes with respect to the
Property for 1996.
(ii) If, on the Closing Date, the 1996 real property tax xxxx with
respect to the Property is not available, the amount of real property taxes
shall be apportioned based on the current year's millage and the current
year's assessment. If the current year's millage is not fixed and the current
year's assessment is available, taxes will be apportioned based on such
assessment and the prior year's millage. If the current year's assessment is
not available, then real property taxes will be apportioned on the prior
year's tax. Any apportionment of taxes based upon any figures other than a
final tax xxxx shall, at the request of either Buyer or Seller, be
subsequently reapportioned based upon receipt of the final tax xxxx for the
current year.
(iii) Certified, confirmed and ratified special assessment liens as of
the Closing Date are to be paid by Seller. Pending liens as of the Closing
Date shall be assumed by the Buyer. If the improvement which is the subject
of the special assessment has been substantially completed as of the date of
this Agreement, such pending lien shall be considered certified, confirmed or
ratified and Seller shall, at closing, be charged an amount equal to the last
estimate of assessment for the improvement by the applicable public body.
(iv) Each party shall pay its own attorneys' fees and costs incurred in
connection with the negotiation of this Agreement and consummation of the
transactions contemplated by this Agreement, except as otherwise expressly
provided herein. Seller shall pay the cost of all documentary stamp or
transfer taxes with respect to the transactions contemplated by this
Agreement and all recording costs related to the transfer of title to Buyer
as well as recording costs associated with releases and other documents
required to clear title or to comply with seller's obligations hereunder.
Buyer shall pay the cost of any survey, the owner's title insurance policy
described in Section 5(b)(iii) of this Agreement and a current environmental
site
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assessment or appraisal which Buyer may elect to obtain in connection with
the transactions contemplated by this Agreement.
(v) If at any time following the making of any of the adjustments to the
Purchase Price, the amount thereof shall prove to be incorrect, or it should
be discovered that some adjustment which should have been made was
inadvertently omitted altogether, the party in whose favor the error was made
shall pay the sum necessary to correct such error to the other party promptly
following receipt of notice of such error from such other party. The
provisions of this Section 2(c)(v) shall survive the closing of the
transaction contemplated by this Agreement and the delivery of the Deed.
(d) Escrow Account.
(i) The Deposit shall be held by the law firm of Gunster, Yoakley,
Xxxxxx-Xxxxx & Xxxxxxx, P.A., as escrow agent (the "Escrow Agent"), in an
interest-bearing account. Such account shall be maintained until the Deposit
and the interest thereon have been delivered to Buyer, Seller or a court of
competent jurisdiction in accordance with the provisions of this Agreement,
and shall terminate on the date of such delivery.
(ii) The Escrow Agent shall account for the Deposit in accordance with
the terms of this Agreement, or in such other manner as may be directed in a
joint written notice from Seller and Buyer directing some other disbursement
of the Deposit. If the Escrow Agent receives written notice from either Buyer
or Seller that the other party has defaulted in the performance of its
obligations under this Agreement or that any condition to the performance of
obligations under this Agreement has not been fulfilled within the time
period stipulated, which notice shall describe in reasonable detail such
default or non-performance, then the Escrow Agent shall (A) promptly give
notice to the party alleged to have defaulted or to have failed to fulfill
its obligation of the Escrow Agent's receipt of such notice from the other
party and shall enclose a copy of such notice from the other party, and (B)
subject to the provisions of Section 2(d)(iii) below which shall apply if a
conflict arises, on the fourteenth (14th) day after the giving of the notice
referred to in clause (A) above, deliver the Deposit and the interest thereon
to the party claiming the right to receive it.
(iii) If the Escrow Agent is uncertain as to its duties or actions
hereunder, or receives instructions or a notice from Buyer or Seller which
are in conflict with instructions or a notice from the other party or which,
in the reasonable opinion of the Escrow Agent, are in conflict with any of
the provisions of this Agreement, it shall be entitled to take any of the
following courses of action: (A) hold the Deposit as provided above in this
Section 2(d) and decline to take any further action until the Escrow Agent
receives a joint written direction from Buyer and Seller or an order of a
court of competent jurisdiction directing the disbursement of the Deposit, in
which case the Escrow Agent shall then disburse the Deposit in accordance
with such direction; (B) in the event of litigation between Buyer and Seller,
deliver the Deposit and all interest thereon to the clerk of any court in
which such litigation is pending; or (C) deliver the Deposit and all interest
thereon to a court of competent jurisdiction and commence an action for
interpleader in such court, whereupon the Escrow Agent shall have no further
duty with respect to the Deposit.
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(iv) The Escrow Agent shall not be liable for any action taken or
omitted in good faith and may rely, and shall be protected in acting or
refraining from acting in reliance, upon an opinion of counsel and upon any
directions, instructions, notices, certificates, instruments, requests,
papers or other documents believed by it to be genuine and to have been made,
sent, signed or presented by the proper party or parties.
(v) Seller acknowledges that the Escrow Agent is counsel for Buyer and
may continue to act as such counsel notwithstanding its duties as Escrow
Agent hereunder or any dispute or litigation arising as to its duties as
Escrow Agent.
(vi) The Escrow Agent shall have no liability with regard to any duty
under this Agreement nor be responsible for the loss of any moneys held by it
except in the event of willful and intentional misconduct on the part of the
Escrow Agent. Notwithstanding any other provisions of this Agreement, Buyer
and Seller jointly indemnify and hold harmless the Escrow Agent against any
losses, costs, liabilities, claims and expenses incurred by the Escrow Agent
arising out of or in connection with its services under the terms of this
Agreement, including reasonable attorneys' fees and expenses and the costs
and expenses of any interpleader action involving the Deposit or of defending
itself against any claim or liability. However, the Escrow Agent will not
charge any fee for its normal services hereunder as Escrow Agent.
(vii) The terms of this Section 2(d) shall survive any termination of
this Agreement or the closing of the transactions contemplated by this
Agreement.
3. CLOSING; EXTENSIONS.
(a) Closing Date and Place. The time for the delivery of the Deed and for
the performance of the other terms and conditions of this Agreement (the
"Closing"), shall be 12:00 P.M. (Boston) on the earlier of (i) forty-five
(45) days following Buyer having obtained the zoning and/or planned unit
development permits or approvals contemplated by Section 5(b)(viii) of this
Agreement or (ii) October 31, 1996 (as the same may be extended pursuant to
the provisions hereof, the ("Closing Date") at the offices of Escrow Agent,
or at such other place or time as shall be mutually agreed upon by Buyer and
Seller.
(b) Extension of Closing Date. Buyer shall have the right to extend the
Closing Date beyond the date referred to in Section 3(a) above twice for
periods of thirty (30) days in each instance by giving Seller notice at least
five (5) days prior to the then scheduled Closing Date. Each such extension
notice shall be accompanied by a payment to Seller in the amount of
$15,000.00 for such extension. $7,500.00 of each such extension payment shall
be placed in escrow with the Escrow Agent and shall be non-refundable if the
Closing does not occur (except in the event of Seller's default), but shall
be credited in full against the Purchase Price if the Closing does occur. The
remaining $7,500.00 of each payment shall be paid to Seller, without
restriction, as consideration for such extension.
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4. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of Seller. Seller warrants and
represents to, and covenants and agrees with, Buyer as of the date hereof
(and on the Closing Date shall reaffirm all such representations, covenants
and warranties as of that date) as follows:
(i) Seller holds the entire ownership interest in the Land, the
Improvements and all appurtenances thereto, and the signature of no other
party is required to convey any of such interests and rights.
(ii) Seller is a duly organized and validly existing not for profit
corporation, in good standing under the laws of Florida, and has the legal
right, power and authority to enter into this Agreement and to perform all of
its obligations hereunder, and this Agreement constitutes the legal, valid
and binding obligation of Seller, enforceable in accordance with its terms.
The execution by the undersigned officer of Seller and delivery of this
Agreement, and the performance by Seller of its obligations hereunder, have
been duly authorized by all necessary action by and on behalf of Seller and
will not conflict with, or result in a breach of, any of the terms, covenants
and provisions of the articles of incorporation or bylaws of Seller as any of
the same may have been amended, any agreement or instrument to which Seller
is a party or by which it is bound, or, to the best of Seller's knowledge,
any Permit, Governmental Regulation (as defined below), regulation, order,
judgment, writ, injunction or decree of any court or governmental authority.
(iii) No consent, approval or other authorization of, or registration,
declaration or filing with, any court or governmental agency or commission is
required for the due execution, delivery and performance of this Agreement by
Seller or for the validity or enforceability thereof against Seller.
(iv) There are no uncured notices, suits, orders, decrees or judgments
relative to violations of, nor to the best of Seller's knowledge without
independent inquiry, any other violations of, (A) any easement, restrictive
covenant or other matter of record affecting the Property or any part
thereof, or (B) any laws, statutes, ordinances, codes, regulations, rules,
orders, or other requirements of any local, state or federal authority or any
other governmental entity or agency having jurisdiction over the Property or
any part thereof, including, without limitation, any of the foregoing
affecting zoning, subdivision, building, health, traffic, environmental,
hazardous waste or flood control matters (all of the foregoing, collectively,
"Governmental Regulations").
(v) There are no other suits, actions or proceedings pending or, to the
best of Seller's knowledge without independent inquiry, threatened, against
or affecting the Property or any of the transactions provided for herein
before any court or administrative agency or officer, and to the best of
Seller's knowledge without independent inquiry, Seller is not in default with
respect to any judgment, order, writ, injunction, rule or regulation of any
court or governmental agency or office to which Seller is subject in any way
affecting the Property or any of the transactions provided for herein.
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(vi) Seller has not received written notice of any pending legal or
administrative proceedings relative to the condemnation, or other taking by
governmental authority, of all or any portion of the Property, and to the
best of Seller's knowledge without independent inquiry, there are no present
or pending legal or administrative proceedings relative to condemnation, or
other taking by governmental authority, of all or any portion of the
Property, and that no such proceeding is contemplated.
(vii) Seller has not received written notice of any existing or pending
special assessments affecting the Property, which may be assessed by any
governmental authority, water or sewer authority, drainage district or any
other special taxing district, and to the best of Seller's knowledge without
independent inquiry, there are no such existing or pending special
assessments affecting the Property.
(viii) Except as disclosed on Exhibit 4(a)(viii), there are no service,
maintenance, management or similar contracts relating to or affecting the
Property.
(ix) All ad valorem property taxes for the Property have been fully paid
for the year 1995, and all prior years.
(x) Seller has entered into no other contracts for the sale of any
portion of the Property.
(xi) Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Code.
(xii) Attached as Exhibit 4(a)(xii) is a true, correct and complete copy
of that certain Recreational Sports Facility Lease and all modifications,
extensions and renewals thereof (collectively, the "Recreational Lease")
entered into between Seller and Xxxxxx County, the term of which has been
extended to October 30, 1998. Other than the Recreational Lease, there are no
leases, subleases, licenses or other rental agreements or occupancy
agreements (written or oral) which grant any possessory interest in and to
any space situated on or in the Property or that otherwise give rights with
regard to the use of the Property or any portion thereof.
(xiii) To the best of Seller's knowledge, Seller has never generated,
stored (except in material compliance with Governmental Regulations), handled
or disposed of any hazardous substance, hazardous waste, hazardous materials
or oil (as any of such terms are defined under applicable Governmental
Regulations) in, on or under the Property, and, to the best of Seller's
knowledge without independent inquiry, there has been no release of any such
hazardous substance, hazardous waste, hazardous materials or oil into the
environment from the Property, or in, on or under the Property.
(xiv) Buyer shall have no duty to investigate or inquire regarding the
accuracy or veracity of any representation or warranty of Seller and it shall
be deemed reasonable for Buyer to fully rely upon same. All rights and
remedies herein of the Buyer regarding any misrepresentation or breach of
warranty shall be cumulative, and nothing herein shall be deemed
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to limit any right or remedy of the Buyer otherwise provided by law or
equity. No misrepresentation or breach of warranty by Seller shall be deemed
to be merged or extinguished due to the closing of the transaction.
(b) Representations and Warranties of Buyer. Buyer warrants and represents
to, and covenants and agrees with, Seller as follows:
(i) Buyer is a duly organized and validly existing corporation, in good
standing under the laws of Delaware and qualified to transact business in the
State of Florida, and has the legal right, power and authority to enter into
this Agreement and to perform all of its obligations hereunder, and this
Agreement constitutes the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms. The execution by the undersigned
officer of Buyer and delivery of this Agreement, and the performance by Buyer
of its obligations hereunder, have been duly authorized by all necessary
corporate action by and on behalf of Buyer and will not conflict with, or
result in a breach of, any of the terms, covenants and provisions of the
articles of organization or by-laws of Buyer, as same may have been amended,
any agreement or instrument to which Buyer is a party or by which it is
bound, or, to the best of Buyer's knowledge, any Permit, Governmental
Regulation, regulation, order, judgment, writ, injunction or decree of any
court or government authority.
(ii) The officer signing this Agreement on behalf of Buyer is duly
authorized to execute the same on behalf of Buyer and Buyer shall provide a
corporate resolution to such effect at the Closing.
(iii) No consent, approval or other authorization of, or registration,
declaration or filing with, any court or governmental agency or commission is
required for the due execution, delivery and performance of this Agreement by
Buyer or for the validity or enforceability thereof against Buyer.
(iv) There are no uncured notices, suits, orders, decrees or judgments
against Buyer which would materially adversely affect Buyer's ability to
perform its obligations under this Agreement.
(v) Seller shall have no duty to investigate or inquire regarding the
accuracy or veracity of any representation or warranty of Buyer and it shall
be deemed reasonable for Seller to fully rely upon same. All rights and
remedies herein of the Seller regarding any misrepresentation or breach of
warranty shall be cumulative, and nothing herein shall be deemed to limit any
right or remedy of the Seller otherwise provided by law or equity. No
misrepresentation or breach of warranty by Buyer shall be deemed to be merged
or extinguished due to the closing of the transaction.
(c) Liability for Warranties and Representations. Buyer and Seller agree
as follows:
(i) Seller agrees to indemnify and hold Buyer harmless from and against
any and all claims, losses, liabilities, damages, expenses and fees,
including without limitation,
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reasonable attorneys' fees and expenses, incurred by Buyer as the result of
the failure of any of Seller's warranties and representations contained in
this Article 4 or elsewhere in this Agreement. Conversely, Buyer agrees to
indemnify and hold Seller harmless from and against any and all claims,
losses, liabilities, damages, expenses and fees, including without
limitation, reasonable attorneys' fees and expenses, incurred by Seller as
the result of the failure of any of Buyer's warranties and representations
contained in this Article 4 or elsewhere in this Agreement. The provisions of
this Article 4 shall survive the closing of the transaction contemplated by
the Agreement and delivery of the Deed hereunder or the termination of this
Agreement.
(ii) Except for such covenants, representations and warranties of Seller
as herein expressly set forth, no statement, representation, warranty,
covenant or inducement of any kind, express or implied, made by Seller has
been relied upon by Buyer as to (a) the compliance of the Property, in its
current or any future state, with statutes, laws, ordinances, rules,
regulations and orders of governmental or quasi-governmental bodies,
authorities or agencies, (b) the ability to obtain changes in laws, rules,
ordinances and regulations of governmental or quasi-governmental bodies,
authorities or agencies, (c) the current or future zoning, development or use
of the property, (d) the right to or the availability of any utility services
(including, without limitation, water, sewer, electricity, gas, telephone and
cable television) in respect of the Property or any part thereof, the costs
of any utility services and the procedures and costs for procurement of any
utility services, (e) the presence or absence of any laws, statutes,
ordinances, rules, or regulations of any governmental or quasi-governmental
bodies, authorities or agencies or any violations thereof, (f) the condition,
use or quality of the Property or any part thereof, (g) the marketability of
title to the Property or any part thereof, (h) the presence or absence of any
hazardous or toxic substance or material in, on, or under the Land or the
presence of any underground storage tanks or aboveground storage tanks on the
Land, (i) the presence or absence of any wetland, environmentally sensitive
area or endangered or threatened species of animal or plant or the habitat
thereof on or near the Land, or (j) any other matter. Except for such
covenants, representations and warranties of Seller as are herein expressly
set forth or as expressly set forth in any of the documents described in
Paragraph 6(a) hereof, Buyer acknowledges that it is purchasing the Property
in an "as is" condition without any implied warranties of merchantability,
habitability or fitness for any particular purpose.
(iii) Both Buyer's and Seller's liability for the breach of any warranty
or representation contained in this Agreement shall survive for a period of
three (3) years following the Closing Date.
5. RIGHTS AND OBLIGATIONS OF THE PARTIES PRIOR TO CLOSING; CONDITIONS TO
CLOSING.
(a) Seller's Covenants. Seller covenants that between the date of this
Agreement and the Closing:
(i) Upon twenty-four (24) hour notice to Seller and Buyer's execution
and delivery to Seller of a release in the form attached hereto as Exhibit
5(a)(i), Buyer and its
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representatives, agents, contractors, architects and engineers, and each of
their respective officers, directors, agents, employees, representatives, and
designees shall have access to the Property at any time and from time to
time, at Buyer's sole cost and expense: (A) to show the Property to third
parties (including, without limitation, contractors, engineers, architects,
attorneys, insurers, banks and other lenders or investors, and prospective
tenants, occupants or buyers) and (B) to perform any and all tests, borings,
inspections, environmental site assessments and measurements which Buyer
reasonably deems necessary or appropriate hereunder, including without
limitation, for purposes of locating all utility conduits serving the
Property, making soil borings, performing soil compaction tests, performing
mechanical or structural inspections, conducting any of the other tests
described in Section 5(b) below, and making such surveys and other
topographical and engineering studies, and other tests, surveys and studies
as Buyer or Buyer's lender may deem necessary or appropriate. Promptly
following such tests and surveys, Buyer shall restore any disturbed Property
to a condition as close as possible to its condition prior to such tests and
surveys; provided, however, that with respect to the Improvements, Buyer's
obligation shall be limited to causing the Improvements to be returned to a
secure condition. In the event this Agreement is terminated for any reason
other than a breach by Seller, Buyer shall provide Seller, at Seller's
expense (except in the event the Agreement is terminated due to a breach by
Buyer, in which event, at Buyer's expense), copies of the results of all such
tests and surveys which are in its possession or control; provided, however,
in no event shall Buyer be obligated to provide Seller with (i) any item
which is subject to attorney-client privilege or work product privilege or
(ii) any item which is subject to the terms of a written confidentiality
agreement between Buyer and any unrelated third party.
(ii) Buyer may discuss the Property and/or the Intended Use with any
federal, county, state or local officials or authorities concerning
variances, permits, certificates, consents, approvals, and other Governmental
Regulations for the use, operation, leasing and/or sale of the Property.
(iii) Promptly upon its execution hereof and in any event within five
(5) days following its execution hereof, Seller will furnish to Buyer for
Buyer's review, inspection and approval complete and accurate copies of all
records and documentation and all information in its possession (or in the
possession of Seller's attorney) concerning the ownership and condition of
the Property (for informational purposes, without warranty or representation
regarding its accuracy), including, without limitation, any available plans
and surveys, engineering reports, recorded title documents, title abstracts
and title insurance policies, soil tests, service contracts, legal opinions,
environmental site assessments, permits, approvals, and building
specifications, and such other available items as requested by Buyer. Except
as necessary in connection with the permitting and approval process for the
Project, Buyer will hold all such documents, data and information obtained
solely from Seller in confidence in accordance with the terms of the
Confidentiality Agreement entered into between Buyer and Seller on November
22, 1995. Upon termination of this Agreement as provided herein, and provided
that such termination is not a result of Seller's default hereunder, Buyer
will promptly return to Seller all such information obtained from Seller.
10
(iv) Seller shall not permit any new sale of, occupancy of, or enter
into any new lease for, space in or on the Property, or any portion thereof,
or enter into or renew any management, maintenance, service or other
agreement affecting the Property, or enter into or renew any management,
maintenance, service or other agreement affecting the Property, unless the
term of any such agreements affecting the Property ends prior to the Closing
Date or unless Seller terminates any such agreement prior to the Closing
Date. Buyer shall operate and maintain the Property in the same manner as it
is currently operating and maintaining the Property.
(v) Seller shall not prosecute, and shall not withdraw, settle or
otherwise compromise, any protest or reduction proceeding affecting real
estate taxes assessed against the Property for the year in which the Closing
is to occur or any prior year without the prior written consent of Buyer.
Real estate tax refunds and credits received after the Closing Date which are
attributable to the year during which the Closing Date occurs shall be
apportioned between Seller and Buyer, after deducting the expenses of
collection thereof, which obligation shall survive the Closing.
(vi) Seller shall not execute any new mortgage of the Property or modify
the existing mortgage(s) on the Property, or otherwise encumber the Property,
or create any other new encumbrance or restriction affecting the Property in
any manner which would prevent Seller from obtaining a partial release at the
time of Closing as referenced below at Section 5(a)(ix).
(vii) Subject to Buyer's approval, Seller shall make no material
alterations of buildings on the property, nor shall Seller take any actions
to modify or alter the Property in a manner which would affect the Property's
land use or zoning classification.
(viii) Within thirty (30) days of the execution of this Agreement,
Seller shall obtain, in writing, a partial release agreement between Seller
and the lender currently holding a lien on the Property or a letter from said
lender whereby said lender agrees to discharge its lien on the Property at
Closing for an amount not to exceed the net amount of the Purchase Price to
be received by Seller at the Closing, after deduction (if any) for the
adjustments described in Section 2(c) above and payment of the broker's
commission, if any, described in section 9(l).
(ix) In the event Buyer shall be required to obtain a drainage easement
to drain surface water run off from the Property across Seller's property
located east of Xxxxxx'x Point Road, Seller shall grant to Buyer (or the
applicable governmental authority) and shall cause any successor in title to
Seller to grant to Buyer (or the applicable governmental authority) such
drainage easement; provided, however, that (i) the location of such drainage
easement would be mutually agreed upon by Buyer and Seller (or Seller's
successor in title) and (ii) the construction of the facilities in such
drainage easement shall be acceptable to Buyer and Seller (or Seller's
successor in title). In the event Seller shall convey or lease all or any
portion of its property east of Xxxxxx'x Point Road, Seller shall notify such
transferee or lessee of this obligation, and shall impose this obligation
(including the obligation to impose this obligation on subsequent transferees
or lessees) upon such transferee or lessee. Within thirty (30) days following
the execution of this Agreement, Seller shall provide Buyer with a written
acknowledgment from the
11
Trust for Public Land (which party is a proposed purchaser of such property)
acknowledging its knowledge of this obligation, its agreement to comply with
the same and its agreement to impose such obligation on any subsequent
purchaser of such property. In the event the Trust for Public Land shall
enter into an agreement to sell or lease all or any portion of such property
to Xxxxxx County, Florida, Seller shall provide Buyer, or shall cause the
Trust for Public Land to provide Buyer, with a written acknowledgment from
Xxxxxx County, Florida acknowledging its knowledge of this obligation, its
agreement to comply with the same and its agreement to impose such obligation
on any subsequent purchaser of such property.
(x) Within thirty (30) days following the execution of this Agreement,
Seller shall deliver to Buyer written evidence indicating the approval of
this Agreement by Seller's Board of Trustees.
(b) Certain Conditions to Buyer's Obligations. In addition to the other
conditions to be satisfied hereunder, Buyer's obligations hereunder are
expressly contingent upon fulfillment of all of the following terms and
conditions:
(i) Seller delivering to Buyer the items contemplated by Section
5(a)(viii) above, Section 5(a)(x) above and the penultimate sentence of
Section 5(a)(ix) above within thirty (30) days following the execution of
this Agreement.
(ii) Buyer may make or cause to be made all site assessments, tests,
borings and inspections it deems necessary to determine if there are any
"hazardous wastes", "hazardous substances", "oil" or "hazardous materials"
(as all those terms are defined under applicable Governmental Regulations),
or any medical wastes, radioactive materials, lead, asbestos, urea
formaldehyde, or radon, in, on, about, under or in the area of the Property,
and shall be satisfied in its sold discretion with the results of all such
site assessments, tests, borings and inspections.
(iii) Buyer may make or cause to be made an instrument survey of the
Property prior to the Closing Date, and such survey shall disclose no matters
affecting the Property which are reasonably determined by Buyer to materially
adversely affect the title or value of the Property or the use of the
Property for the Intended Use.
(iv) Buyer shall have obtained a commitment from a title insurance
company selected by Buyer pursuant to which such company agrees to issue to
Buyer, upon recording of the Deed, an ALTA Form B owners policy of title
insurance in the amount of the Purchase Price insuring Buyer's title to the
Land, subject only to such easements, restrictions, rights of way and other
matters of record as are shown on Exhibit 5(b)(iv) attached hereto (the
"Permitted Exceptions") and containing such endorsements as are shown on
Exhibit 5(b)(iv). In the event such title insurance commitment contains any
matter other than a Permitted Exception or does not contain any required
endorsement, Buyer shall notify Seller in writing specifying its objection to
such exception or the lack of such endorsement. Seller shall cure such
objections within ninety (90) days following receipt of such notice (Seller's
obligation to cure shall include Seller's obligation to bring suit against
the appropriate parties), failing which Buyer shall have the option of either
accepting title as it then exists or terminating this
12
Agreement, in which event the Deposit together with all interest thereon
shall be immediately refunded to Buyer, where upon all obligations of the
parties hereto shall cease and this Agreement shall be void and without
recourse to the parties hereto. At closing, the title insurance commitment
shall be endorsed to delete any and all requirements or preconditions to the
issuance of the title insurance policy (and Seller shall execute and deliver
such documents and instruments and undertake such actions and activities as
may be reasonably required to delete such requirements or preconditions) and
to delete any exception for matters arising or attaching subsequent to the
effective date of the commitment and before acquisition of record of fee
simple title to the Land by Buyer and any standard exception; provided,
however, the standard exception relating to parties in possession shall be
replaced with a specific exception relating to tenants, residents and
licensees in possession of the Land and Improvements pursuant to the Leases
as tenants, residents or licensees only. From and after the date of this
Agreement, except as contemplated by the terms of this Agreement, Seller
shall take no action which impairs or otherwise affects title to any portion
of the Property and shall record no documents or instruments in the public
records which would affect title to the Property, without the prior written
consent of Buyer.
(v) Buyer shall have obtained surveys, engineering reports, percolation
tests, commitment letters and other evidence satisfactory to Buyer indicating
that: (A) the Property contains or is serviced by water supplies in amounts
adequate for the Intended Use and (B) utilities are available at the
boundaries of the Land in amounts adequate for the Intended Use without the
need for any third party easements not already unconditionally appurtenant to
the Property.
(vi) Buyer shall review and be satisfied with all zoning, land use, land
development and environmental laws, codes, ordinances, regulations affecting
the Property.
(vii) Buyer shall have obtained all subdivision and environmental
permits, approvals, consents and licenses and any other applicable permit,
approval, consent or license as may be necessary for the Intended Use (other
than those contemplated by subparagraph (viii) below), and the relevant
appeal periods for all such permits, approvals, licenses and consents shall
have expired without any appeal having been taken. Buyer covenants and agrees
to undertake commercially reasonable efforts to pursue in good faith and
obtain the foregoing; provided, however, in no event shall Buyer be obligated
to institute litigation against any person or entity whatsoever to obtain any
of the foregoing. Seller covenants and agrees to execute and deliver such
applications and the like as are necessary or expedient to allow Buyer to
pursue and obtain the foregoing.
(viii) Buyer shall have obtained all utility, subdivision,
environmental, zoning and/or planned unit development permits, approvals,
consents or licenses from Xxxxxx County, Florida as may be necessary for the
Intended Use (other than building permits), including, without limitation,
approval of the Intended Use by all applicable governmental authority boards,
and the relevant appeal periods for such permits, approvals, consents, or
licenses shall have expired without any appeal having been taken. Buyer
covenants and agrees to undertake commercially reasonable efforts to pursue
in good faith and obtain the foregoing; provided, however, in no
13
event shall Buyer be obligated to institute litigation against any person or
entity whatsoever to obtain any of the foregoing. Seller covenants and agrees
to execute and deliver such applications and the like as are necessary or
expedient to allow Buyer to pursue and obtain the foregoing.
(ix) Buyer shall conduct such other surveys, analyses, inspections, and
tests as are deemed necessary or desirable by the Buyer in its sole and
absolute discretion and shall be satisfied in its sole and absolute
discretion, with the Property and the Intended Use.
(x) Seller shall have obtained such documents and instruments, in
recordable form and otherwise satisfactory to Buyer and the title company in
their reasonable discretion, as are necessary to cause the matter set forth
on Exhibit 5(b)(x) to be discharged from the public records.
If the foregoing conditions specified in subsections (i) and (x) above is
not fully satisfied on or before thirty (30) days after the date of this
Agreement, Buyer shall have the right to notify Seller thereof on or before
5:00 P.M. (Boston time) on the 33rd day following the date of this Agreement,
in which event this Agreement shall be terminated, the deposit, together with
all interest thereon, shall be immediately refunded to Buyer and Seller shall
immediately reimburse to Seller all reasonable costs and expenses incurred by
Buyer arising out of or related to the Property or this Agreement between the
date of this Agreement and the date of such notice, whereupon all obligations
of the parties hereto shall cease and this Agreement shall be void without
recourse of the parties hereto. If Buyer does not provide such notice as of
the 33rd day following the date of this Agreement, the above conditions will
be deemed to have been waived or satisfied.
If the foregoing conditions specified in subsections (ii), (iii), (iv),
(v), (vi) and (ix) above are not fully satisfied in a manner which is
acceptable to Buyer in its sole discretion on or before April 15, 1996 or if
any records or documentation or information provided by Seller is
unsatisfactory to Buyer, Buyer shall have the right to notify Seller thereof
on or before 5:00 P.M. (Boston time) on April 18, 1996 (the "Commitment
Date") which notice shall specify which condition(s) (has) (have) not been
satisfied (which notice shall be accompanied by copies of any materials, if
any, upon which such lack of satisfaction is based), then this Agreement
shall be terminated, and the Deposit, together with all interest thereon,
shall be immediately refunded to Buyer, whereupon all obligations of the
parties hereto shall cease and this Agreement shall be void and without
recourse to the parties hereto. If Buyer does not provide such notice as of
the Commitment Date, the above conditions will be deemed to have been waived
or satisfied.
If the other conditions specified in subsection (vii) are not fully
satisfied in a manner which is acceptable to Buyer in its sole discretion on
or before August 16, 1996, Buyer shall notify Seller thereof on or prior to
5:00 P.M. (Boston time) on August 19, 1996, which notice shall specify which
condition(s) has (have) not been satisfied (which notice shall be accompanied
by copies of any materials, if any, upon which such lack of satisfaction is
based), then this Agreement shall be terminated, and the Deposit together
with all interest thereon, shall be immediately refunded to Buyer, whereupon
all obligations of the parties hereto shall cease and this Agreement shall be
void and without recourse to the parties hereto. If Buyer does not
14
provide such notice on or prior to August 16, 1996, such condition shall be
deemed to have been waived or satisfied.
If the other conditions specified in subsection (viii) are not fully
satisfied in a manner which is acceptable to Buyer in its sole discretion on
or before October 31, 1996, Buyer shall notify Seller thereof on or prior to
5:00 P.M. (Boston time) on November 1, 1996, which notice shall specify which
condition(s) has (have) not been satisfied (which notice shall be accompanied
by any materials, if any, upon which such lack of satisfaction is based). In
such event, this Agreement shall be terminated, and the Deposit together with
all interest thereon, shall be immediately refunded to Buyer, whereupon all
obligations of the parties hereto shall cease and this Agreement shall be
void and without recourse to the parties hereto. If Buyer does not provide
such notice on or prior to November 1, 1996, such condition shall be deemed
to have been waived or satisfied.
6. CLOSING OBLIGATIONS; ESCROW INSTRUCTIONS.
(a) Seller's Closing Obligations. On the Closing Date, Seller shall:
(i) Deliver to Buyer full possession of the Property. Buyer shall be
entitled to an inspection of the Property prior to the Closing Date in order
to determine whether the condition thereof complies with the terms of this
Agreement.
(ii) Deliver to Buyer, in form and substance satisfactory to Buyer, the
following:
(A) a Special Warranty Deed (the "Deed") conveying good and marketable
title to the Land and Improvements insurable as provided in Section 5(b)(iii)
above, which shall convey title free from all liens, encumbrances and
encroachments except: (i) provisions of building and zoning laws existing as
of the date hereof; (ii) such real property taxes for the then current year
as are not yet due and payable on the Closing Date, provided that if the Land
is a portion of a larger tax parcel, then Buyer shall take title subject only
the proportionate share of such real property taxes as relate to the Land;
(iii) special assessment liens which are not certified, confirmed or ratified
as of the Closing; and (iv) the Permitted Exceptions.
(B) An assignment of the Development Work Product and any studies of
any kind that relate to the Property and all originals thereof, to the extent
the foregoing are assignable.
(C) An Assignment of Seller's entire interest in any permits, licenses
or approvals affecting the Property (provided, however, in the absence of an
express assignment, delivery of the Deed will conclusively be deemed to
constitute the assignment of all of such permits, licenses and approvals to
Buyer).
(D) Affidavits to Buyer's title insurer as to matters appearing
between the effective date of the title commitment referred to in Section
5(b) and the Closing Date, parties in
15
possession or with a right to possession of, easements not of public record
and mechanic's liens with respect to, the Property, which affidavits shall be
sufficient to have the normal printed exceptions with respect to such matters
deleted from Buyer's and Buyer's lender's title insurance policy(ies).
(E) An affidavit certifying that Seller is not a "foreign person" as
of the Closing Date, as provided in Section 4(a)(xi) hereof.
(F) A certificate by Seller to the effect that all of the
representations and warranties set forth in Section 4 remain true and correct
as of the Closing Date except to the extent the same may have changed in
accordance with the terms and conditions of this Agreement.
(G) A W-9 form stating that no backup withholding is necessary to
disburse Seller's share, if any, of the interest earned on the Deposit.
(H) A DR-219 Form
(I) A secretary's certificate and corporate resolution of Seller,
certifying as to the incumbent officers of Seller and the due authorization
and execution of this Agreement, and of the sale, assignment, instruments,
and other transactions comtemplated hereby.
(J) Certificates of legal existence and good standing for Seller.
(K) Such documents, certificates and instruments reasonably deemed
necessary or appropriate by Buyer's and Seller's counsel to effectuate the
transactions which are the subject of this Agreement.
(L) All other documents expressly required by this Agreement to be
delivered by Seller.
(iii) To enable Seller to make conveyance as herein provided, at the
time of delivery of the Deed, Seller shall use the Purchase Price or any
portion thereof to clear title to the Property of any or all encumbrances,
including but not limited to those set forth on Exhibit 6(a)(iii), and all
instruments so procured shall be recorded simultaneously with the delivery of
the Deed, or provisions reasonably satisfactory to Buyer's attorney shall be
made prior to the Closing Date for recording thereof as soon as reasonably
practicable after the Closing Date.
(b) Buyer's Closing Obligations. At the Closing, Buyer shall deliver to
Seller:
(i) In immediately available funds, the balance of the Purchase Price,
as adjusted for apportionments under Section 2 above.
(ii) A secretary's certificate and corporate resolution of Buyer (or its
equivalent from Buyer's nominee), certifying as to the incumbent officers of
Buyer and the due
16
authorization and execution of this Agreement, and the purchase, assignment,
instruments and other transactions contemplated hereby.
(iii) Certificate of legal existence and good standing for Buyer (or its
equivalent from Buyer's nominee).
(iv) A certificate by Buyer to the effect that all the representations
and warranties set forth in Section 4 remain true and correct as of the
Closing Date except to the extent the same may have changed in accordance
with the terms and conditions of this Agreement.
(v) Such documents, certificates and instruments reasonably deemed
necessary or appropriate by Buyer's and Seller's counsel to effectuate the
transactions which are the subject of this Agreement.
(vi) Any other documents expressly required by this Agreement to be
delivered by Buyer.
7. CONDEMNATION. In the event that all or any part of the Property shall
be acquired or condemned for any public or quasi-public use or purpose, or if
any acquisition or condemnation proceedings shall be threatened or begun
prior to the closing of this transaction, Buyer shall have the option to
either terminate this Agreement, in which event the Escrow Agent shall return
to Buyer the Deposit, together with accrued interest thereron, and the
obligations of all parties hereunder shall cease, or to proceed, subject to
all other terms, covenants, conditions, representations and warranties of
this Agreement, to the closing of the transaction contemplated hereby and
receive title to the Property, receiving, however, any and all damages,
awards or other compensation arising from or attributable to such acquisition
or condemnation proceedings. Buyer shall have the right to participate in any
such proceedings.
8. FAILURE OR INABILITY TO PERFORM: DEFAULTS; REMEDIES.
(a) Seller's Default.
(i) If Seller shall not perform any of its obligations hereunder within
the time required (time being of the essence) for such performance or if any
of Seller's warranties and representations contained herein are not fully
accurate as of the Closing Date (collectively, the "Seller's Obligations")
the time for performance hereunder shall be extended for such period, not to
exceed ninety (90) days, as shall be reasonably specified by Buyer, and
Seller shall use diligent efforts to satisfy and perform all of Seller's
Obligations. If, at the expiration of such extended time for performance,
despite having used such diligent efforts Seller shall remain unable to
satisfy and perform all of Seller's Obligations, then Buyer shall have the
option, at Buyer's sole discretion: (I) to terminate this Agreement by notice
given to Seller, whereupon the Deposit, together with all interest and other
sums paid by Buyer hereunder, shall be promptly refunded by Escrow Agent and
all obligations of the parties hereto shall cease and this Agreement shall be
void and without recourse to the parties hereto, excluding, however, those
provisions hereof which are expressly provided herein to survive termination
of the Agreement,
17
or (II) to accept title to the Property as provided in Section 8(a)(ii)
below. In the event that Seller seeks relief as a debtor under any applicable
law, including without limitation the federal bankruptcy code, or upon the
involuntary commencement of any such proceeding, Buyer shall have the right
of possession of the Property pending the Closing and shall be entitled to
any and all rights pursuant to 11 U.S.C. Section 365(i) and (ii). Buyer shall
have the right to obtain specific performance of this Agreement, as well as
the benefit of any other rights or remedies provided herein or by applicable
law, in the event of any default hereunder by Seller (i.e., Seller's failure
to perform its obligations hereunder where such failure is not excused by any
of the express terms of this Agreement).
(ii) Buyer shall have the election, at the original or at any extended
time for Closing, to accept such title to, and possession of, the Property as
Seller can deliver in its then condition and to thereupon pay the Purchase
Price without any deductions, except such amount necessary to remove all
mortgages, liens or encumbrances which secure the payment of money and such
adjustments computed in accordance with Section 2(b) above, in which case
Seller shall convey such title.
(b) Buyer's Default. If Buyer shall not perform any of its obligations
hereunder within the time required (time being of the essence) for such
performance, Seller's sole and exclusive remedy shall be to retain the
Deposit and any interest thereon as full and complete liquidated damages,
both at law and in equity, whereupon this Agreement shall terminate without
further recourse to either party. In addition, nothing contained herein shall
be construed so as to prevent Seller from negotiating and/or accepting
another offer to sell and/or lease all or any part of the Property to any
third party, after Buyer's default under this Agreement. Any such other offer
shall contain an express acknowledgment from the party making such offer of
the existence of this Agreement.
9. MISCELLANEOUS.
(a) Tax Identification Number. Seller warrants and represents that
Seller's federal tax identification number is 00-0000000, and Buyer warrants
and represents that Buyer's federal tax identification number is 00-0000000.
Seller and Buyer each acknowledge that the foregoing information will be
relied upon in reporting the transactions contemplated hereby to appropriate
governmental authorities.
(b) Agreement Not an Offer. The submission of any draft of this Agreement
or any portion thereof does not constitute an offer to buy the Property, it
being acknowledged and agreed that neither Buyer nor Seller shall be legally
obligated with respect to the purchase or sale of the Property unless and
until this Agreement has been executed by both Buyer and Seller and a fully
executed copy has been delivered to each of Buyer and Seller.
(c) Exhibits. The Exhibits attached hereto are incorporated herein by this
reference and made a part hereof.
18
(d) Notices. All notices or communications required or permitted hereunder
shall be in writing and delivered by hand or mailed by certified mail, return
receipt requested, postage and registration or certification charges prepaid,
or by nationally recognized overnight courier service to the party entitled
thereto as follows:
If to Seller:
Florida Institute of Technology, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx, Vice President and Treasurer
With a courtesy copy to:
Xxxx, Mean & Xxxxxx
0000 X. 00xx Xxxxxx
Xxxxx 000, Xx. Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to Buyer:
The Careplex Group, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, III, Esq.
With a courtesy copy to:
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Suite 500, East Tower
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
or such other party(ies), address(es) or telefax number(s) as either party
shall specify by written notice to the other from time to time. Any such
notice or communication shall be deemed to have been given as of the date of
its receipt or delivery.
(d) Time is of the Essence. Time is of the essence with respect to each
provision of this Agreement which requires that action be taken by either
party within a stated time period, or upon a specified date.
(f) Assignment. This Agreement shall be freely assignable by Buyer to any
nominee contemplated by Section 1(c) of the Agreement, and in the event of
assignment, all of the rights and obligations of Buyer may be enforced and
shall be performed by its assignee, as fully as if by Buyer itself. Buyer
shall provide Seller with written notice of any such assignment, together
with evidence satisfactory to Seller in its reasonable discretion that such
assignee qualifies as a nominee contemplated by Section 1(c) of this
Agreement.
(g) Maintenance of Property. At all times prior to closing, Seller shall
continue to maintain the Property in the same manner as it is currently
maintaining the Property.
19
(h) Attorneys Fees and Costs. In the event of any dispute or litigation
arising out of this Agreement, the prevailing party shall be entitled to
recover all fees, expenses and costs incurred, including reasonable
attorneys' fees at both trial and appellate levels.
(i) Venue; Jurisdiction. The venue of any litigation arising out of this
Agreement shall be Xxxxxx County, Florida. Each of the parties irrevocably
and unconditionally agrees that any suit, action or legal proceeding arising
out of or related to this Agreement shall be brought in the court of records
of the State of Florida in Xxxxxx County and not in the courts of the United
States. Each party irrevocably and unconditionally consents to the
jurisdiction of such court in any suit, action or proceeding and waives any
objection which it may have to the laying of venue or jurisdiction of any
such suit, action or proceeding in such courts.
(j) Captions. The descriptive captions contained herein are for
convenience only and shall not control or affect the meaning or construction
of any provision hereof.
(k) Binding Effect. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, and shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
legal representatives, successors and assigns.
(l) Broker.
(i) Each of Buyer and Seller hereby represents, covenants and warrants
to the other that the party so representing has dealt with no broker or other
person entitled to a commission in connection with the negotiation or
execution of this Agreement or the consummation of the transactions
contemplated hereby, other than Xxxxxx & Xxxx of Stuart, Inc. ("Xxxxxx") and
Stuart Land Company ("Stuart") (collectively, the "Brokers"). Further, each
of Buyer and Seller agrees to indemnify and hold harmless the other from any
loss, cost or expense which such nonindemnifying party may incur as a result
of any inaccuracy in the other party's warranties and representations as set
forth in the prior sentence. Except in the case of a breach of Buyer's
warranty set forth above, any and all fees to be paid to the Brokers, or any
other broker claiming by, through or under Seller or Brokers in connection
with Buyer's purchase of the Property will be paid by Seller.
(ii) Upon delivery and recording of the Deed and other instruments
contemplated herein, in consummation of the transactions contemplated hereby,
Seller shall pay to Xxxxxx a brokerage commission in the amount of $67,500.
At the closing, Xxxxxx will pay Stuart a brokerage commission in the amount
of $27,000. In the event that this Agreement is terminated for any reason, no
such commission or compensation of any kind shall be due and payable to the
Brokers. The provisions of this Section 9(l) shall survive the delivery of
the Deed or the termination of this Agreement.
(iii) The Brokers join in this Agreement and become parties hereto for
the purposes of this Section 9(l) only. The consent of the Brokers shall not
be required with respect to any amendments or modifications to this Agreement
other than Amendments or modifications to this Section 9(l).
20
(m) Entire Agreement; Rules of Construction. This Agreement may be
executed in multiple counterparts; may be executed and delivered by facsimile
transmission; sets forth the entire agreement between the parties; merges all
prior and contemporaneous agreements, understandings, warranties, or
representations, including, without limitation, the letter from Buyer and
accepted by Seller, dated October 27, 1995 and that Confidentiality Agreement
entered into between Buyer and Seller on November 22, 1995 shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; and may be canceled, modified or amended only by a
written instrument executed by both Seller and Buyer. The captions and
section headings are used only as a matter of convenience and are not to be
considered a part of this Agreement or to be used in determining the intent
of the parties.
(n) Further Assurances. Upon Buyer's reasonable request, Seller agrees to
execute and deliver to Buyer such additional instruments, certificates and
documents as Buyer may reasonably require, whether or not after the Closing
Date, in order to provide Buyer with the rights and benefits to which Buyer
is entitled under this Agreement.
(o) Notice of Agreement. Provided Buyer shall execute, acknowledge and
deliver to Seller a release of any such notice or memorandum, Buyer shall
have the right to record and Seller agrees to execute, acknowledge and
deliver to Buyer a notice or memorandum of agreement.
(p) Other Contracts. Neither Seller nor any representatives thereof, shall
solicit, authorize the solicitation of, enter into or authorize any
discussions with any third party concerning, or furnish or authorize the
furnishing of any information relating to Seller or the Property to any third
party for the purpose of studying, considering, soliciting or inducing, any
offer or possible offer by any such third party or any third party to acquire
all or substantially all of the ownership interest in Seller or the Property
or enter into any agreement for any of the foregoing unless such third party
shall agree in writing, for the benefit of Buyer, that any such other
agreement, and such third party's rights thereunder, are inferior and
subordinate to the terms and provisions, and rights of Buyer under this
Agreement and that such third party shall not pursue any permits nor make any
investigations regarding the zoning or land use specifications matters unless
and until this Agreement has been terminated in accordance with its terms.
Seller shall enforce the terms and provisions of any such agreement against
such third party; provided, however, that all costs and expenses associated
with any litigation related thereto shall be the cost and expense of Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused it
to be executed by their respective duly authorized representatives, as an
instrument under seal as of the day and year first above written.
WITNESSES: BUYER:
THE CAREPLEX GROUP, INC.
/s/ By: Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
21
/s/ Title: Executive Vice President
Hereunto Duly Authorized
SELLER:
/s/ FLORIDA INSTITUTE OF TECHNOLOGY,
INC.
By: /s/
Name: Xxxxxx X. Xxxxx
/s/ Title: Vice President and
Treasurer
Hereunto Duly Authorized
ESCROW AGENT:
GUNSTER, YOAKLEY, XXXXXX-XXXXX &
/s/ XXXXXXX, P.A.
By: /s/
Name: Xxxxxx X. Xxxx
/s/ Title: Vice President
Hereunto Duly Authorized
BROKERS:
/s/ XXXXXX & XXXX OF STUART, INC.
By: /s/
/s/ Name: /s/
Title: Broker
STUART LAND COMPANY
/s/ By: /s/
Name: /s/
/s/ Title: Vice President
22
0173269.04
23
Exhibits
Exhibit 1(a) Legal Description of the Land
Exhibit 4(a)(viii) Schedule of Contracts
Exhibit 4(a)(xii) Copy of Recreational Lease
Exhibit 5(a)(i) Buyer's Release for Access to Property
Exhibit 5(b)(iv) Permitted Exceptions and Required Endorsements
Exhibit 5(b)(x) Schedule of Zoning Agreements/Ordinances to be Discharged
Exhibit 6(a)(iii) Schedule of Encumbrances to be Discharged
24
Exhibit 1(a)
Legal Description
See Attached
25
#94-345
LEGAL DESCRIPTION: LOW DENSITY RESIDENTIAL/COMMERCIAL/
OFFICE/RESIDENTIAL
A PARCEL OF LAND SITUATED IN SECTION 00, XXXXXXXX 00 XXXXX, XXXXX 41 EAST,
XXXXXX COUNTY, FLORIDA; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE NORTH ONE-HALF OF GOVERNMENT XXX 0,
XXXXXXX 00, XXXXXXXX 00 XXXXX, XXXXX 41 EAST; THENCE NORTH 00(degree) 46'27"
EAST, ALONG THE SOUTHERLY EXTENSION OF THE EAST LINE OF THE PLAT OF SOUTH
XXXXXX HEIGHTS, AS RECORDED IN PLAT BOOK 3, PAGE 55, PUBLIC RECORDS OF XXXXXX
COUNTY, FLORIDA, A DISTANCE OF 33 FEET TO THE SOUTHEASTERLY CORNER OF LOT 68,
SAID PLAT OF SOUTH XXXXXX HEIGHTS, ALSO BEING THE POINT OF BEGINNING;
THENCE NORTH 00(degree) 46'27" EAST, ALONG THE EASTERLY LINE OF SAID PLAT AND
THE EASTERLY LINES OF THE PLATS OF 1ST ADDITION TO SOUTH XXXXXX HEIGHTS AND
2ND ADDITION TO SOUTH XXXXXX HEIGHTS, AS RECORDED IN PLAT BOOK 3, PAGE 68 AND
PLAT BOOK 3, PAGE 81, RESPECTIVELY, OF THE PUBLIC RECORDS OF XXXXXX COUNTY,
FLORIDA, A DISTANCE OF 1550.10 FEET TO A POINT ON A LINE BEING 40 FEET
SOUTHWESTERLY OF AND PARALLEL WITH THE CENTERLINE OF XXXXXX'X POINT ROAD,
SAID POINT BEING A POINT ON A CURVE FROM WHICH A RADIAL LINE BEARS NORTH
59(degree) 12'24" EAST; THENCE SOUTHEASTERLY ALONG SAID LINE THROUGH THE
FOLLOWING SIX (6) COURSES:
ON A CURVE TO THE LEFT, HAVING A RADIUS OF 540.00 FEET, SUBTENDING A CENTRAL
ANGLE OF 11(degree) 36'23" AND AN ARC DISTANCE OF 109.39 FEET TO THE POINT OF
TANGENCY; THENCE SOUTH 42(degree) 23'59" EAST, A DISTANCE OF 1002.31 FEET TO
THE POINT OF CURVATURE; THENCE SOUTHEASTERLY, ON A CURVE TO THE RIGHT, HAVING
A RADIUS OF 460.00 FEET, SUBTENDING A CENTRAL ANGLE OF 11(degree) 05'13" AND
ARC DISTANCE OF 89.01 FEET TO THE POINT OF TANGENCY; THENCE SOUTH 31(degree)
18'46" EAST, A DISTANCE OF 516.06 FEET TO THE POINT OF CURVATURE OF A CURVE
CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 960.00 FEET; THENCE SOUTHEASTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 09(degree) 10'48", AN
ARC DISTANCE OF 153.81 FEET TO THE POINT OF TANGENCY; THENCE SOUTH
22(degree)07'58" EAST, A DISTANCE OF 102.47 FEET TO A POINT ON THE NORTHERLY
RIGHT-OF-WAY LINE OF XXXXXX ROAD LYING 33 FEET NORTHERLY OF AND PARALLEL WITH
THE SOUTH LINE OF THE NORTH ONE-HALF OF SAID GOVERNMENT LOT 4; THENCE NORTH
88(degree)56'24" WEST, ALONG SAID RIGHT-OF-WAY LINE, A DISTANCE OF 1191.31
FEET TO THE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS AN AREA OF 23.615 ACRES, MORE OR
LESS.
Exhibit 4(a)(viii)
Schedule of Contracts
1. An oral, month-to-month, caretaker's agreement for maintaining the
Property.
26
Exhibit 4(a)(xii)
Copy of Recreational Lease
See Attached
27
LEASE
THIS LEASE is made and entered into effective as of the 1st day of
October, 1992, by and between FLORIDA INSTITUTE OF TECHNOLOGY, INC., a
Florida not-for-profit corporation ("Lessor"), and XXXXXX COUNTY, a political
subdivision of the State of Florida ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns fee title in and to a parcel of land in Xxxxxx
County, Florida, as more particularly described in Exhibit "A", attached
hereto and made a part hereof (the "Property");
WHEREAS, Lessee is authorized to lease property for public purposes and
desires to lease that portion of the Property depicted in Exhibit "B",
attached hereto and made a part hereof (the "Leased Property") for the
purpose of providing recreational fields to its citizens for organized team
sports use; and
WHEREAS, Lessor desires to lease the Leased Property to Lessee on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the sum of $1.00, the receipt of which
is hereby acknowledged, and of the covenants and agreements hereinafter
mentioned, the parties hereto agree as follows:
1. The recitals set forth above are true and correct and incorporated
herein as if fully set forth herein verbatim.
2. Lessor hereby leases to Lessee, and Lessee hereby rents from Lessor the
Leased Property.
3. Lessee shall use the Leased Property as recreational fields for
football, baseball, soccer and other organized-team or recreational sports
and for no other purpose.
4. The term of this Lease shall commence on October 1, 1992, and shall
continue for a term of one (1) year, unless sooner terminated or extended as
herein set forth. At the expiration of the initial term, the term of this
Lease shall automatically be renewed and extended for an additional one (1)
year period, unless sooner terminated as provided herein. At the expiration
of the first extended term, the term of this Lease shall automatically be
renewed and extended for an additional one (1) year period; provided,
however, that the term, as extended, shall not exceed a total period of three
(3) years from the effective date hereof. It is further provided that either
Lessor or Lessee may elect to terminate this Lease by giving to the other
party notice of such termination in writing not less than sixty (60) days
prior to the requested date of termination, in which event this Lease shall
terminate on the said date.
5. Lessor agrees that authorized users of the Leased Property shall be
entitled to park their cars and other vehicles on Lessor's adjoining parking
lots during Lessee's hours of use of the Leased Property, but they have no
right to use such parking lots for any other purposes.
6. Lessee shall be solely responsible for the condition, operation, and
maintenance of the Leased Property, and shall maintain the same in a manner
consistent with the maintenance of parks and playgrounds owned or leased by
Lessee.
7. Upon receipt of Lessor's written approval, Lessee, during the term of
this Lease, at its own cost and expense, may make certain alterations and
improvements in, to or upon the Leased Property. Minor improvements such as
goalposts, striping, and baseball diamond markings shall not require written
approval, nor shall Lessee's provision of portable bleachers and/or portable
toilet facilities.
8. The Xxxxxx County Property Appraiser has determined that the Leased
Premises are exempt from ad valorem taxes, and the assessment rolls will so
reflect that no ad valorem taxes will be assessed against the Leased Property
during the term of this Lease. Lessee agrees to pay as additional rent all
other assessments, rates and charges, which may be levied, assessed, charged
or imposed on or against the Leased Property or any part thereof, or on or
against any improvements thereon. If such assessment, rate or charge is made
relative to the entire Property rather than only the Leased Premises, then
the parties agree that Lessee's charge shall be based upon the proportion of
the total Property represented by the Leased Property, which is 29%.
9. Lessee agrees to keep in full force in effect during the term of this
Lease, or any extension thereof, sufficient insurance to insure against loss
or damage for which it may be liable, and to cover Lessee's risks and
liabilities to the full extent of the provisions of Florida Statutes, Section
768.28 (1993) (Statutory Waiver of Sovereign Immunity). Lessee shall include
the Leased Property with all other property covered by Xxxxxx County under
the Tri-County Risk Management Program, such that (a) Lessee is insured
against liabilities, (b) Lessor is named as an additional insured thereunder,
and (c) such policy cannot be canceled except upon thirty (30) days' written
notice to Lessor. Lessee shall provide Lessor with a certificate of such
insurance coverage upon execution of this Lease, and upon any extension of
the term of this Lease, if any.
10. At the termination of this Lease, Lessee shall quit and surrender the
Leased Property to Lessor, and Lessor shall accept the same, in its then
existing condition and thereupon this Lease shall be null and void and of no
further force and effect. However, Lessee shall have the obligation to remove
any capital improvements made upon the Leased Property if Lessor so requests,
and if removal can be done without damage to the Leased Property, and Lessee
shall repair any of the Leased Property so affected to the condition it was
at the commencement of this Lease. With the exception of portable facilities,
all additions and improvements made or placed upon the Leased Property by
Lessee and not so requested to be removed by Lessor, shall, as further
consideration for this Lease, become and be the property of the Lessor and
shall remain upon and be surrendered with the Leased Property as part thereof
at the termination or expiration of this Lease.
11. No waiver, by either party hereto, of a breach of any covenant herein
contained, shall be construed to be a waiver of any succeeding breach of the
same covenant.
12. Lessee shall have the right to reasonably regulate the use and
operation of the Leased Property and to determine and establish the hours of
operation of same.
2
13. Any and all notices at any time to be served by and upon the parties
hereto pursuant to this Lease shall be in writing and shall be sent by United
States certified mail, postage prepaid, return receipt requested, to the
following addresses:
TO LESSOR:
FLORIDA INSTITUTE OF TECHNOLOGY, INC.
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Vice President
WITH COPY TO:
XXXX, XXXX & XXXXXX
X.X. Xxx 0000
Xx. Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esquire
TO LESSEE:
XXXXXX COUNTY
0000 X.X. Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attn: County Administrator
Any notice given as herein specified shall be deemed delivered as of the
date of postmark in any United States post office.
14. All of the covenants and agreements herein contained shall be binding
upon and enure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors and assigns; provided, however, that
Lessee shall not assign this Lease or sublet the Leased Property without the
express written consent of Lessor, which may be withheld in Lessee's sole and
absolute discretion.
15. If any action at law or in equity shall be brought on account of any
breach of, or to enforce or interpret any of the covenants, terms, or
conditions of this Lease, or for the recovery of the possession of the Leased
Property, the prevailing party shall be entitled to recover from the other
party as part of the prevailing party's costs, reasonable attorneys' and
paralegals' fees incurred at or before the trial level and during any
appellate proceeding, the amount of which shall be fixed by the court and
shall be made a part of any judgment or decree rendered.
16. Lessor and Lessee agree that neither this Lease nor a memorandum
thereof shall be recorded in the real estate records of Xxxxxx County,
Florida.
17. All prior understandings and agreements between the parties (oral and
written) are merged within this Lease, which alone fully and completely sets
forth the understandings of the parties, and this Lease may not be changed or
terminated orally or in any manner other than by an agreement in writing and
signed by the party against whom enforcement of the change or termination is
sought. This Lease and every provision hereof is the result of negotiation by
and between the respective parties hereto, and it is agreed that in the event
any litigation arises with respect hereto, a strict construction of the terms
of this Lease shall not be applied against any of the parties hereto because
of the fact that it drafted or prepared this Lease.
3
If any term, covenant, condition or provision of this Lease is declared
invalid or unenforceable, the balance of this Lease shall not be affected
thereby.
IN WITNESS WHEREOF, the said parties have hereunto set their hands and
seals effective as of the 1st day of October, 1992.
WITNESSES: LESSOR:
FLORIDA INSTITUTE OF TECHNOLOGY,
INC.
/s/ By: /s/
Xxxxxx X. Xxxxx, Vice President
/s/
[Corporate Seal]
LESSEE:
ATTEST: BOARD OF COUNTY COMMISSIONERS
XXXXXX COUNTY, FLORIDA
/s/
By: Xxxxxxx X. Xxxxxxxxx, Chairman
XXXXXX XXXXXXX, CLERK
APPROVED AS TO FORM AND
CORRECTNESS:
/s/
Xxxxxx X. Xxxxxx
County Attorney
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this 11th day of
November, 1993, by Xxxxxx X. Xxxxx, as Vice President of FLORIDA INSTITUTE OF
TECHNOLOGY, INC., a Florida Corporation, on behalf of the corporation. Said
person did not take an oath and (check one) [X] is personally known to me, [
] produced a driver's license (issued by a state of the United States within
the last five (5) years) as identification, or [ ] produced other
identification, to wit:
. /s/ Xxxxxxxx X. Xxxxxx
[NOTARY SEAL] Print Name: Xxxxxxxx X. Xxxxxx
Notary Public, State of Florida
Commission No.: CC162924
My Commission Expires: 11/20/95
4
LEGAL DESCRIPTION
THAT PORTION OF THE FOLLOWING DESCRIBED PROPERTY LOCATED WESTERLY OF INDIAN
RIVER DRIVE, XXXXXX COUNTY, FLORIDA:
Beginning at the Southwest corner of the North one-half of Government Lot #4
in Section 6, Township 37 South, Range 41 East, and extending thence:
1. North 00(degree) 44'00" East, and along the Easterly line of the SOUTH
XXXXXX HEIGHTS SUBDIVISION recorded in Plat Book 3, Page 55, a distance
of 1331.19 feet to the Northwest corner of Government Lot 4; thence
2. North 00(degree) 44'00" East continuing along the line of SOUTH XXXXXX
HEIGHTS SUBDIVISION, a distance of 336.50 feet to a point in the
centerline of Xxxxxx'x Point Road to a point marked by an iron rod and
cap; thence
3. North 26(degree) 07'00" West along said centerline of Xxxxxx'x Point Road
a distance of 311.31 feet to a point marked by an iron rod and cap;
thence
4. North 57(degree) 32'13" East along the Northerly boundary of the entire
tract being also the division line between this tract and the lands, now
or formerly, of X.X. Xxxxxxx, a distance of 933.87 feet to a 14" x 14"
square concrete monument; thence
5. North 57(degree) 32'13" East continuing along said Northerly tract
boundary line with lands of X.X. Xxxxxxx, a distance of 59.69 feet to a
point in the waters of the Indian River; thence
6. North 57(degree)32'13" East continuing along the same line a distance of
250.00 feet to a point in the Xxxxxx Beach bulkhead line; thence
7. South 46(degree) 38'22" East along the Xxxxxx Beach bulkhead line, a
distance of 348.25 feet and continuing the following courses along said
bulkhead line; thence
8. South 33(degree) 55'00" East, a distance of 272.08 feet to a point;
thence
9. South 27(degree 50'00" East, a distance of 334.00 feet to a point; thence
10. South 15(degree) 17'00" East, a distance of 275.00 feet to a point;
thence
11. South 09(degree) 43'17" East, a distance of 493.91 feet to a point;
thence
12. South 02(degree) 50'18" East, a distance of 345.63 +/- feet to a point;
thence
13. South 02(degree) 50'18" East, a distance of 109.37 feet to a point;
thence
14. South 17(degree) 34'52" East, a distance of 264.97 feet to a point;
thence
15. South 17(degree) 34'52" East, a distance of 135.21 feet to a point of
intersection with the Northerly line extended of Lot 2 of the Florida
Institute of Technology Minor Subdivision #1 and a dividing line between
this parcel and the lands of the L & E Corporation; thence
16. North 98(degree) 56'15" West over the waters of the Indian River and to
the upland a distance of 314.09 feet to a concrete monument in said
northerly line of Lot 2 of the Florida Institute of Technology Minor
Subdivision #2; thence
17. North 98(degree) 56'15" West continuing along the same Northerly line of
said Lot 2, a distance of 329.87 feet to a point in the Easterly
right-of-way of Xxxxxx'x Point Road marked by a concrete monument; thence
18. South 31(degree) 43'31" East along the Easterly right-of-way of Xxxxxx'x
Point Road being the Westerly boundary of said Lot 2, a distance of 46.50
feet to a point marked by a monument; thence
19. South 21(degree) 10'41" East continuing along said Easterly right-of-way
of Xxxxxx'x Point Road, a distance of 281.81 feet to a permanent
reference monument #5 where the Easterly line of Xxxxxx'x Point Road
intersects the centerline of Xxxxxx Road, said centerline being also the
Southerly line of the Northerly one-half of Government Lot 4; thence
20. North 88(degree) 56'15" West along said Southerly line of the Northerly
one-half of Government Lot 4, also being the centerline of Xxxxxx Road, a
distance of 1277.20 feet to the point and place of beginning.
21. Subject to existing easements, restrictions, reservations, and
encumbrances.
EXHIBIT A
EXHIBIT "B"
[DIAGRAM OF PLOT]
FIRST AMENDMENT TO LEASE
This Agreement is made and entered into effective as of the 1st day of
October, 1995, by and between FLORIDA INSTITUTE OF TECHNOLOGY, INC., a
Florida not-for-profit corporation ("Lessor"), and XXXXXX COUNTY, a political
subdivision of the State of Florida ("Lessee").
W I T N E S S E T H:
WHEREAS, effective as of the 1st day of October, 1992, Lessor and Lessee
entered into a Lease (the "Lease") allowing Lessee to use the property
described therein for recreational fields for organized sports teams;
WHEREAS, the Lease had a term not to exceed three (3) years from the
effective date thereof; and
WHEREAS, Lessor and Lessee desire to extend the term of the Lease for an
additional three (3) years and to otherwise modify and amend the Lease as set
forth herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid,
other good and valuable consideration and the mutual covenants and promises
of the parties hereto, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Paragraph 4 of the Lease is hereby deleted, and the following is
substituted in lieu thereof:
The term of this Lease shall commence on October 1, 1995, and shall
continue for a term of one (1) year, unless sooner terminated or extended
as herein set forth. At the expiration of the initial term, the term of
this Lease shall automatically be renewed and extended for an additional
one (1) year period, unless sooner terminated as provided herein. At the
expiration of the first extended term, the term of this Lease shall
automatically be renewed and extended for an additional one (1) year
period; provided, however, that the term, as extended, shall not exceed a
total period of three (3) years from the effective date hereof. It is
further provided that either Lessor or Lessee may elect to terminate this
Lease by giving to the other party notice of such termination in writing
not less than thirty (30) days prior to the requested date of termination,
in which event this Lease shall terminate on the said date.
2. Except as herein specifically modified and amended, the Lease shall
remain in full force and effect.
IN WITNESS WHEREOF, the authorized officers of the parties hereto have
executed this Agreement as of the date first above written.
WITNESSES: LESSOR:
FLORIDA INSTITUTE OF TECHNOLOGY,
INC.
/s/ By: /s/
Xxxxxx X. Xxxxx, Vice President
/s/
[Corporate Seal]
LESSEE:
BOARD OF COUNTY COMMISSIONERS
ATTEST: XXXXXX COUNTY, FLORIDA
/s/ By: /s/
XXXXXX XXXXXXX, CLERK Xxxxx Xxxxxx, Chairperson
APPROVED AS TO FORM AND
CORRECTNESS:
/s/
Xxxx X. Xxxxxxxx, Asst.
County Attorney
STATE OF FLORIDA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 5th day of
December, 1995, by XXXXXX X. XXXXX, as Vice President of FLORIDA INSTITUTE OF
TECHNOLOGY, INC., a Florida corporation, on behalf of the corporation. Said
person did not take an oath and (check one) [X] is personally known to me, [
] produced a driver's license (issued by a state of the United States within
the last five (5) years) as identification, or [ ] produced other
identification, to wit: .
[NOTARY SEAL]
/s/
Print Name:
Notary Public, State of Florida
Commission No.:
My Commission Expires:
Exhibit 5(a)(i)
Buyer's Release For Access
See Attached
INDEMNIFICATION AND RELEASE
In consideration for the permission being granted by FLORIDA INSTITUTE OF
TECHNOLOGY, INC. ("FIT") allowing the undersigned to enter upon the property
and buildings owned by FIT, and located in Jensen Beach, Florida (the
"Property") for the purpose of conducting inspections or investigations, the
undersigned do/does hereby acknowledge and agree to the following:
1. The undersigned enter upon the Property at their own risk.
2. The undersigned shall only enter upon the Property following
authorization from Xxxxx X. Xxxxxx, at Xxxxxx & Xxxx of Xxxxxx, Inc. ("Xxxxxx
& Lang"), for FIT.
3. The undersigned hereby release(s) FIT, Xxxxxx & Xxxx, their agents,
employees, officers, principals, trustees, licensees, invitees and
contractors from any injury to the undersigned or damage to the property of,
or used by, the undersigned arising out of or resulting from entry by the
undersigned, its agents, employees, licensees, invitees or contractors upon
the Property or the buildings located thereon, even if such injury or damage
shall result, in whole or in part, from the negligence of FIT, Xxxxxx & Lang,
their agents, employees, officers, principals, trustees, licensees or
contractors.
4. The undersigned, jointly and severally, if more than one, agree to
indemnify and hold harmless FIT, Xxxxxx & Xxxx, their agents, employees,
officers, principals, trustees, licensees, invitees and contractors, from any
and all manner of actions, suits, debts, controversies, trespasses, damages,
judgments, executions, claims, costs, losses, demands, expenses and any and
all liabilities (including legal fees at and before the trial level and
during any appellate and bankruptcy proceedings and expenses and amounts paid
in settlement) suffered or incurred by FIT, Xxxxxx & Lang, their agents,
employees, officers, principals, trustees, licensees, invitees and/or
contractors, arising out of, connected with or in any way relating to entry
upon the Property by any of the undersigned, even if such actions, suits,
debts, controversies, trespasses, damages, judgments, executions, claims,
costs, losses, demands, expenses and any and all liabilities shall result, in
whole or in part, from the negligence of FIT, Xxxxxx & Xxxx, their agents,
employees, officers, principals, trustees, licensees, invitees or
contractors.
5. The rights granted herein to the undersigned are not assignable.
6. In the event that any of the foregoing covenants, agreements, terms or
provisions shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions
contained herein shall be in no way affected, prejudiced or disturbed
thereby.
7. This Indemnification and Release may be executed and a copy of such
signature received through telefax transmission shall bind the party whose
signature is so received as if such signature were an original.
IN WITNESS WHEREOF, the undersigned have executed this instrument
effective as of this day of , 1996.
Print Name: Print Name:
Print Name: Print Name:
JOINDER
In consideration for FIT allowing the employees or agents ("Consultants")
of Continuum Care of Massachusetts, Inc., or its affiliates or related
entities or persons, to enter upon the Property, Continuum Care of
Massachusetts, Inc., on behalf of its affiliated or related entities or
persons, their agents and employees, hereby:
1. Releases FIT, Xxxxxx & Lang, their agents, employees, officers,
principals, trustees, licensees, invitees and contractors from any injury to
the undersigned or damage to the Property of the undersigned used by the
Consultants arising out of or resulting from entry by the Consultants upon
the Properety or the buildings located thereon, even if such injury or damage
shall result, in whole or in part, from the negligence of FIT, Xxxxxx & Long,
their agencies, employees, officers, principals, trustees, licensees,
invitees or contractors.
2. Agrees to indemnify and hold harmless FIT, Xxxxxx & Lang, their agents,
employees, officers, principals, trustees, licensees, invitees and
contractors from any and all manner of actions suits, debts, controversies,
trespasses, damages, judgments, executions, claims, costs, losses, demands,
expenses and any and all liabilities (including legal fees at and before the
trial level and during any appellate and bankruptcy proceedings and expenses
and amounts paid in settlement) suffered or incurred by FIT, Xxxxxx & Xxxx,
their agents, employees, officers, principals, trustees, licensees, invitees
and contractors, arising out of, connected with or in any way relating to
entry upon the Property or the buildings located thereon, by the Consultants,
even if such actions, suits, debts, controversies, trespasses, damages,
judgments, executions, claims, costs, losses, demands, expenses and any and
all liabilities shall result, in whole or in part, from the negligence of
FIT, Xxxxxx & Lang, their agents, employees, officers, principals, trustees,
licensees, invitees or contractors.
3. Accepts full responsibility for anyone in its employ or control, or
anyone who purports to be an employee or agent of the undersigned, and who
enters upon the Property without executing the foregoing Indemnification and
Release and/or without prior authorization.
4. This Indemnification and Release may be executed and a copy of such
signature received through telefax transmission shall bind the party whose
signature is so received as if such signature were an original.
IN WITNESS WHEREOF, the authorized officer has executed this instrument
effective as of the day of , 1996.
CONTINUUM CARE OF MASSACHUSETTS, INC.
By:
Its:
(Corporate Seal)
-2-
Exhibit 5(b)(iv)
Permitted Exceptions and Required Endorsements
1. Taxes for the year 1996 and thereafter.
2. Road right-of-way from Sisters of St. Xxxxxx to Xxxxxx County, Florida
dated June 17, 1964 and recorded in Official Record Book 167, Page 121,
Public Records of Xxxxxx County, Florida, over a strip 35-feet wide, lying
west of the centerline of Xxxxxx'x Point Road.
3. Oil, Gas and Mineral Reservations in favor of Trustees of the Internal
Improvement Fund as contained in Deed No. 22345 (514-43), dated December
18, 1959 and recorded December 24, 1959 in Official Records Book 38, Page
141, Public Records of Xxxxxx County, Florida. The right of entry for
mining and exploration in said reservations has been released by Section
270.11, F.S.
4. Easement in favor of Florida Power and Light Company contained in
instrument dated August 5, 1957, recorded August 12, 1957 in Deed Book 94,
page 497, as clarified in Official Record Book 158, page 182, Public
Records of Xxxxxx County, Florida.
5. Easement in favor of Florida Power and Light Company contained in
instrument dated June 11, 1962, recorded June 21, 1962 in Official Record
Book 158, page 184, Public Records of Xxxxxx County, Florida.
6. Subject to the right-of-way of N.E. Indian River Drive, a/k/a Xxxxxx'x
Point Road.
7. Subject to the right-of-way of N.E. Xxxxxx Road.
8. Those portions of the property herein described comprising artificially
filled land in what was formerly navigable water are subject to any and
all rights of the United States government arising by reason of the United
States government's control over navigable waters in the interest of
navigation and commerce. This exception applies to those lands described
in Official Records Book 38, Page 141, Public Records of Xxxxxx County,
Florida, and those lands east thereof.
NOTE: No endorsements will be required.
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Exhibit 5(b)(x)
Schedule of Zoning Agreements/Ordinances to be Discharged
1. Planned Unit Development Zoning Agreement between Outrigger Resort
Corporation and Board of County Commissioners of Xxxxxx County, as
recorded in Official Record Book 852, Page 2328, as re-recorded in
Official Record Book 861, Page 1889, and Official Record Book 852, Page
2353, as re-recorded in Official Record Book 861, Page 1914, Public
Records of Xxxxxx County, Florida.
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Exhibit 6(a)(iii)
Schedule of Encumbrances to be Discharged
1. Mortgage and Security Agreement in favor of Sun Bank, National
Association, from Florida Institute of Technology, Inc., recorded in
Official Record Book 712, Page 1877, as modified in Official Record Book
758, Page 1975, and Official Record Book 772, Page 187, and Official
Record Book 803, Page 2003, and Official Record Book 822, Page 2221, and
Official Record Book 842, Page 1456, and Official Record Book 867, Page
172, and Official Record Book 916, Page 978, and as assigned to First
Union National Bank of Florida in Official Record Book 969, Page 2075, and
as modified by Official Record Book 969, Page 2078, and Official Record
Book 1146, Page 2033, Public Records of Xxxxxx County, Florida
2. Assignment of Rents, Leases, Profits and Contracts in favor of Sun Bank,
National Association, from Florida Institute of Technology, Inc., recorded
in Official Record Book 712, Page 1885, and as assigned in Official Record
Book 969, Page 2076, and as modified by Official Record Book 969, Page
2078, and Official Record Book 1146, Page 2033, Public Records of Xxxxxx
County, Florida.
3. UCC-1 Financing Statements recorded in Official Record Book 712, Page
1891, and Official Record Book 961, Page 1079, and as assigned in Official
Record Book 969, Page 2077, and as modified by Official Record Book 969,
Page 2078, and Official Record Book 1146, Page 2033, Public Records of
Xxxxxx County, Florida.
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