EXHIBIT 10.138
ASSIGNMENT AGREEMENT
(Xxxx Cove, Roslyn, Great Neck, Wallingford)
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 Letter of Intent (the
"Letter of Intent"), dated June 27, 1996, relating to a certain parcels of
land located in Glen Cove, New York, Great Neck, New York, Wallingford,
Connecticut and Roslyn, New York (collectively, the "Land), a copy of which
is attached hereto as Exhibit A;
WHEREAS, Assignor intends to co-develop three (3) of the parcels
constituting the Land for senior housing facilities consisting of
approximately one hundred forty (140) units, eighty (80) units, and one
hundred six (106) units, respectively, with the Xxxx Cove parcel to consist
of approximately eighty (80) units (collectively, 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 certain of its rights and obligations
under the Letter of Intent 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 Letter of Intent other
than Assignor's rights and obligations with respect to the development
and management of the Project, 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 Letter of Intent 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 Letter of Intent.
1
2. Assignor agrees to indemnify and hold harmless Assignee from and
against any and all Claims (as defined in paragraph 4 hereof) accruing
or arising under the Letter of Intent on or before the date hereof.
3. Assignee agrees to indemnify and hold harmless Assignor from and
against any and all Claims accruing or arising under the Letter of
Intent after the date hereof.
4. For the purposes of this Agreement, the term "Claims" means all costs,
claims, obligations, damages, penalties, causes of action, losses,
injuries, liabilities and expenses (including, without limitation,
reasonable legal fees and expenses).
5. 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:
2
[CAREMATRIX LOGO]
June 27, 1996
Xxxxxxx-Xxxxxx Senior Housing, LLC
00 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxxxxx
RE: CareMatrix/Xxxxxx-Xxxxxx Joint Venture
Gentlemen:
This letter shall confirm that we have reached a general understanding
regarding the essential features of a transaction between Xxxxxxx-Xxxxxx
Senior Housing, LLC ("HBSH") and CareMatrix Corporation or its nominee
("CareMatrix"), relating to the acquisition, development, ownership,
financing and management of the following projects (each a "Project" and
collectively, the "Projects"): (i) an 80 unit assisted living facility to be
located in Glen Cove, New York (the "Xxxx Cove Project"), (ii) an assisted
living facility consisting of approximately 140 units to be located in Great
Neck, New York (the "Great Neck Project"), (iii) an assisted living facility
consisting of approximately 106 units to be located in Roslyn, New York (the
"Xxxxxx Project"), (iv) an assisted living facility consisting of
approximately 80 units to be located in Wallingford, Connecticut, and (v)
certain other assisted living facilities to be identified and located in the
Designated Area (as defined below). Subject to the preparation, execution and
performance of the necessary written agreements containing the mutual
covenants and agreements of the parties, which upon execution will supersede
the terms of this letter, the parties agree as follows:
1. Definitive Agreement: CareMatrix and HBSH will enter into a master joint
venture agreement for all of the Projects (the "Joint Venture Agreement"),
which Joint Venture Agreement shall include, without limitation, that
CareMatrix and HBSH shall each obtain a fifty percent (50%) interest in
the Projects. Each of CareMatrix and HBSH agrees to use reasonable efforts
to agree on the Joint Venture Agreement within forty-five (45) days after
the execution of this letter by both parties.
CAREMATRIX CORPORATION
000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 Telephone: 000-000-0000
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 2
2. Site Acquisition and Approvals:
(a) The Joint Venture shall acquire and retain ownership of the site for the
applicable Project (each a "Site" and collectively, the "Sites"), which
shall be pre-approved by each of CareMatrix and HBSH. Subject to the
performance of the due diligence review as set forth herein, CareMatrix
and HBSH agree that the Sites for the Xxxx Cove Project (The Mayfair at
Xxxx Cove, located at the xxxxxx xx Xxxx Xxxxxx and Town Path Road, Glen
Cove, New York), the Great Neck Project (The Mayfair at Great Neck, 00
Xxxxxxxxxx Xxxx, Xxxxx Xxxx, Xxx Xxxx) and the Xxxxxx Project (Village
School Property, Roslyn, New York) are hereby approved. The date upon
which the Site for each of the other Projects is approved, subject to
the performance of the due diligence review as set forth herein, by each
of CareMatrix and HBSH, is referred to herein as the "Site
Identification Date".
(b) HBSH (and/or CareMatrix to the extent required below) shall be
responsible for all costs and expenses incurred in connection with
acquiring the Sites, including, without limitation, option payments,
deposits, taxes, insurance and legal fees associated with any land
option or purchase contracts (the "Site Costs"). The Site Costs shall be
included within the definition of Development Costs as set forth in
subsection (c) below.
(c) (i) Upon approval by each of CareMatrix and HBSH of a development budget
and operating pro-formas for the first five (5) operating years of the
applicable Project, HBSH (and/or CareMatrix to the extent required
below) shall, subject to reimbursement as provided in Section 4 hereof,
fund or cause to be funded all reasonable costs and expenses associated
with obtaining all required Federal, state and local approvals necessary
for the development of each of the Projects including, but not limited
to, zoning, wetlands, historic district, sewer and water, and
environmental, all as applicable (collectively, the "Approvals"; the
costs for obtaining such Appovals, together with the Site Costs and all
out-of-pocket expenses paid to unrelated third parties, are hereinafter
collectively referred to as the "Development Costs"), up to the maximum
amount of Two Hundred Thousand Dollars ($200,000) for any individual
Project.
(ii) In the event that the total amount of Development Costs for any
individual Project exceeds Two Hundred Thousand Dollars ($200,000), then
CareMatrix shall, subject to reimbursement as provided in Section 4
thereof, fund or cause to be funded the same up to the maximum amount of
Two Hundred Thousand Dollars ($200,000) for any individual Project.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 3
(iii) In the event that the total amount of Development Costs for any
individual Project exceeds Four Hundred Thousand Dollars ($400,000),
then CareMatrix and HBSH shall each, subject to reimbursement as
provided in Section 4 hereof, fund or cause to be funded the same, fifty
percent (50%) of any such amounts, subject to the agreement of
CareMatrix and HBSH to proceed with the applicable Project.
(iv) Notwithstanding the provisions of subsections (i)-(iii) above,
CareMatrix and HBSH acknowledge that HBSH has previously funded, or
caused to have been funded, Development Costs in the approximate amount
of Four Hundred Thousand Dollars ($400,000), subject to verification
during the due diligence period set forth in Section 11(d) below, for
the Xxxx Cove Project and CareMatrix has previously funded, or caused to
have been funded, certain Development Costs for the Roslyn Project,
subject to verification during the due diligence period outlined below.
(d) HBSH and CareMatrix shall be responsible for diligently pursuing all
Approvals. HBSH and CareMatrix shall mutually agree on a time schedule
pursuant to which HBSH and CareMatrix shall obtain the Approvals, which
may be reasonably modified by the mutual agreement of the parties from
time to time. CareMatrix and HBSH acknowledge that certain of the
Approvals for the Xxxx Cove Project have previously been obtained.
(e) CareMatrix and HBSH acknowledge that, subject to verification during the
due diligence period set forth in Section 11(d) below, HBSH has acquired
the land for the Xxxx Cove Project and will transfer the same to the
Joint Venture at the closing of the Project Financing, free and clear of
all liens (other than those agreed to by CareMatrix and HBSH), including
any existing mortgages on such land, in exchange for Nine Hundred
Twenty-Five Thousand Dollars ($925,000) to be paid by the Joint Venture.
3. Project Plans:
(a) CareMatrix and HBSH shall jointly select a project architect (a "Project
Architect") and a project engineer (a "Project Engineer") and any other
necessary consultants and professionals for each of the Projects. The
Project Architect(s) and the Project Engineer(s) shall contract directly
with the Joint Venture. The Joint Venture shall direct the Project
Architect(s) and the Project Engineer(s) to develop a preliminary site
plan and facility schematics. CareMatrix and HBSH shall approve the
design criteria, including overall size and layout, which criteria shall
be incorporated in the development of the applicable Project.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 4
(b) After the applicable Project has received the necessary Approvals, HBSH
(and/or CareMatrix to the extent required under Section 2(c) hereof)
shall, subject to reimbursement as provided in Section 4 hereof, fund or
cause to be funded the reasonable costs necessary to complete final
architectural and engineering plans (the "Plans") for the Projects and
such other costs required to obtain the permits necessary to commence
construction (all such costs shall be subject to the limitations
relating to the funding of Development Costs as set forth in Section
2(c) above and shall be included within the definition of the
Development Costs). The Plans shall be consistent with the preliminary
site plan and facility schematics and shall be mutually agreed upon by
HBSH and CareMatrix; provided, however, that each of CareMatrix and HBSH
agree that CareMatrix's prototype plans shall be utilized for the
Projects to the extent feasible. Notwithstanding the foregoing,
CareMatrix and HBSH acknowledge that the Project Architect and the
Project Engineer have previously been selected, and the Plans have been
completed, for the Xxxx Cove Project.
4. Financing:
(a) CareMatrix shall be responsible for obtaining constructing financing and
permanent financing for the Projects sufficient, in conjunction with any
equity financing by CareMatrix and HBSH, to fund all costs associated
with the development and construction of the Projects (each a "Project
Financing"). Except for the Initial Guarantee Fees and the CareMatrix
Additional Guarantee Fees provided below, the parties acknowledge that
CareMatrix shall not be entitled to any financing fee in connection with
the foregoing. The terms and conditions of each Project Financing shall
be subject to the approval of each of CareMatrix and HBSH. Each Project
Financing shall be (except for any guarantees as provided herein)
non-recourse or substantially non-recourse to CareMatrix and HBSH and
their respective principals.
(b) Notwithstanding the foregoing, in the event that a portion of any
Project Financing is required to be guaranteed, HBSH and CareMatrix
shall each provide guarantees up to a maximum amount of One Million
Dollars ($1,000,000) for any individual Project, and each shall be
entitled to an annual guarantee fee equal to two percent (2%) of the
guaranteed amount outstanding, computed as of the effective date of the
guaranty, if any (the "Initial Guarantee Fees"). In addition to the
foregoing, CareMatrix shall be entitled to an annual guarantee fee equal
to two percent (2%) of any amount in excess of Two Million Dollars
($2,000,000), up to fifty percent (50%) of the amount of the Project
Financing, computed as of the effective date of the guaranty (the
"CareMatrix Additional Guarantee Fee"). With respect to the Xxxx Cove
Project, if necessary to close the Project Financing (other
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 5
than the tax-exempt financing as provided in subsection (e) below),
CareMatrix agrees to provide a guarantee of up to thirty percent (30%)
of the amount of such Project Financing (after taking into account the
guarantees set forth in the first sentence of this subsection). No
CareMatrix Additional Guaranty Fee shall accrue or be payable on the
balance of the principal amount of the Project Financing. The Initial
Guarantee Fees, the CareMatrix Additional Guarantee Fee, and the
CareMatrix Construction Guarantee Fee (defined below) are collectively
referred to herein as the "Guarantee Fees"). The Guarantee Fees shall be
paid on a priority basis from the cash flow from operations at the
applicable Project (the "Project Cash Flow") as set forth in Section 7
hereof. In the event that CareMatrix elects to provide any payment and
completion guarantees under any construction financing for any Project,
and in the case of the Xxxx Cove Project, CareMatrix hereby agrees to
provide such guarantees, if necessary, then CareMatrix shall be entitled
to a guarantee fee equal to one-half percent (0.5%) of the CareMatrix
guaranteed amount, computed as of the effective date of the guaranty
(the "CareMatrix Construction Guarantee Fee").
(c) Simultaneously with the closing of the applicable Project Financing, the
Development Costs shall be paid to HBSH and/or CareMatrix on a pro-rata
basis, in full from the first advance under the construction financing
for the applicable Project. In the event that, for any reason, the total
amount of the Development Costs for any Project is not so paid to HBSH
and/or CareMatrix, then the balance shall accrue interest at a rate
equal to the rate announced by Fleet Bank of Massachusetts, N.A. from
time to time as its prime rate (the "Prime Rate") plus two percent (2%)
(such balance, together with such interest, the "Balance") and the
Balance shall be repaid to HBSH and/or CareMatrix, pro-rata, on a
priority basis from the applicable Project Cash Flow as set forth in
Section 7.
(d) In the event that the amount of any Project Financing is less than one
hundred percent (100%) of the amount necessary to acquire, develop and
construct the applicable Project, each of CareMatrix and HBSH agrees to
contribute equity ("Initial Equity") to the Joint Venture at the closing
of the applicable Project Financing in an amount not to exceed Three
Hundred Fifty Thousand Dollars ($350,000) each for any individual
Project (which maximum amount shall be deemed to include any
unreimbursed Development Costs). In the event that CareMatrix and/or
HBSH elect to contribute additional equity ("Additional Equity") in
order to close any Project Financing, and in the case of the Xxxx Cove
Project, CareMatrix hereby agrees to contribute Additional Equity up to
the maximum amount of Five Hundred Thousand Dollars ($500,000) in order
to close the Project Financing for such Project, if necessary, the same
shall be repaid to CareMatrix and/or HBSH, as the case may be, together
with interest thereon from
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 6
the date of advance at the Prime Rate plus two percent (2%), on a
priority basis from the applicable Project Cash Flow as set forth in
Section 7.
(e) Notwithstanding the foregoing provisions of this Section 4, each of
CareMatrix and HBSH acknowledges that HBSH has been negotiating to
complete a tax-exempt permanent financing for the Xxxx Cove Project, and
the parties shall use best efforts to continue to pursue and utilize the
same for the Xxxx Cove Project. The out-of-pocket costs paid by HBSH to
date for such financing have been included within the amount set forth
in Section 2(c)(iv) hereof as the Development Costs for the Xxxx Cove
Project. The balance of the costs expected to be incurred in connection
with such financing are listed as "Bond Issuance Costs" or "Additional
Bond Issuance Costs" on Exhibit B attached hereto (collectively, the
"Issuance Costs"). Each of CareMatrix and HBSH agrees that the Issuance
Costs (or such lower amount as shall be negotiated by the Joint Venture
and the applicable third parties) shall be paid by the Joint Venture
regardless of whether such tax-exempt financing is utilized. In the
event that such financing is not utilized by the Joint Venture, HBSH
shall use best efforts to obtain releases from each of the consultants
employed in connection with such financing, including, without
limitation, [those identified on Exhibit B attached hereto, releasing
the Joint Venture from and against all losses, claims, damages and
expenses, including reasonable attorney's fees, which may be incurred in
connection with the failure of the Joint Venture to utilize such
financing.
(f) The Project budget for the Xxxx Cove Project is attached hereto as
Exhibit B, and subject to the performance of the due diligence review as
set forth in Section 11(d) below, is hereby approved by each of
CareMatrix and HBSH.
5. Construction: The Joint Venture shall make the Plans available to general
contractors and construction managers acceptable to each of HBSH and
CareMatrix (it being agreed that Suffolk Construction Company is an
acceptable contractor and HRH Construction Company ("HRH") is an
acceptable contractor for the Great Neck Project) in order to allow the
Projects to be competitively bid. Each of CareMatrix and HBSH acknowledge
that HRH shall be the contractor for the Xxxx Cove Project.
6. Development Fees:
(a) Subject to subsection (b) below, HBSH and CareMatrix shall be entitled
to a development fee (the "Development Fee") in the amount of Four
Hundred Fifty Thousand Dollars ($450,000) for each Project, or such
other amount as the parties may mutually agree, to be shared equally by
CareMatrix and HBSH, (except in the case of the Xxxx Cove Project for
which HBSH shall be entitled to the entire
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 7
Development Fee), payable, subject to the terms and conditions of the
applicable Project Financing, as follows: fifty percent (50%) from the
first draw under the applicable Project Financing and fifty percent
(50%) payable in equal monthly installments during the course of
construction of the applicable Project.
(b) In the event that, for any reason, the Development Fee for any Project
is not so paid to HBSH and CareMatrix, then the balance shall accrue
interest at a rate equal to the Prime Rate plus two percent (2%) (such
balance, together with such interest, the "Balance") and the Balance
shall be repaid on a priority basis from the applicable Project Cash
Flow as set forth in Section 7.
7. Distributions: Subject to the terms and conditions of the applicable
Project Financing, the applicable Project Cash Flow shall be distributed
in the following order of priority:
(a) Payment of debt service on the Project Financing;
(b) Payment of all operating expenses of the Joint Venture and the Project,
including, without limitation, the management fees under the terms of
the Management Agreement (as defined below);
(c) Payment of (i) interest on any unreimbursed Development Costs from the
date of closing, (ii) interest on any unreimbursed Initial Equity and
Additional Equity from the date of contribution, (iii) interest on any
unpaid Development Fees from the date due, and (iv) any unpaid Guarantee
Fees (without interest), to the extent provided herein, such payments to
be made pro-rata, based upon the unreimbursed or unpaid amount, as the
case may be, outstanding for each of the foregoing;
(d) Payment of any Development Costs to the extent not paid as provided
herein;
(e) Payment of the Development Fee for the Xxxx Cove Project;
(f) Until the Development Fees and the Additional Equity are repaid in full,
(i) Eighty percent (80%) to the payment of (A) the Development Fees
(other than the Xxxx Cove Project) and (B) Additional Equity, such
payments to be made pro-rata, based upon the unpaid amount outstanding
for each of the foregoing and (ii) twenty percent (20%) to be paid as
follows: fifty percent (50%) to CareMatrix and fifty percent (50%) to
HBSH;
(g) Thereafter, fifty percent (50%) to CareMatrix and fifty percent (50%)
HBSH.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 8
8. Allocations Among Projects: Each of CareMatrix and HBSH agrees that any
losses on a Project, whether in the form of unreimbursed equity
contributions, unreimbursed Development Fees or Development Costs, or
losses on any Guaranty, shall be reimbursed, as mutually agreed to by
CareMatrix and HBSH, on Projects which have opened and generate cash flow,
subject to, and provided the same does not violate, the terms of any
Project Financing for any of the Projects.
9. Management:
(a) The Joint Venture shall enter into a management agreement with
CareMatrix for each of the Projects (each a "Management Agreement"),
pursuant to which CareMatrix shall provide operational management
services for the Projects upon completion thereof. The term of each
Management Agreement shall be for fifteen (15) years with, at the option
of the Joint Venture, two (2) renewal terms of five (5) years each, and
shall provide for a management fee equal to five percent (5%) of the
gross revenues from operations at the Project. Other terms and
conditions of each Management Agreement shall be as mutually agreed upon
by the Joint Venture and CareMatrix.
(b) HBSH represents and warrants to CareMatrix (and shall reaffirm the same
in the Joint Venture Agreement) that HBSH requested from CareMatrix that
CareMatrix provide to HBSH proposals for the ownership, development and
management of the Xxxx Cove Project, and that this letter memorializes
the discussions of the parties from and after such request.
10. Non-Compete Area: CareMatrix and HBSH each agrees that neither (nor any
successors, assigns or affiliate, as such term is defined in the
Securities Act of 1933) shall engage in the development, management,
ownership or operation of an assisted living or senior housing facility
or project, in any capacity whatsoever, without the prior written consent
of the other, and shall only engage in such activities with each other,
in the area outlined on the map attached hereto as Exhibit A (the
"Designated Area") during the term of the Management Agreement.
Notwithstanding the foregoing, in the event that either CareMatrix or
HBSH identifies any such project in the Designated Area, and the other
party does not approve the same as provided herein, CareMatrix or HBSH,
as the case may be, shall have the right to proceed with such project
individually, and the terms of this letter shall not apply to such
project provided that such project is not less than three (3) miles from
any other existing Project including any case in which the proposed
project is not located within the Designated Area.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 9
11. Due Diligence Review Period:
(a) Following the execution of this letter by HBSH and CareMatrix, and each
Site Identification Date, CareMatrix and HBSH and their respective
agents, representatives, lender(s), architect(s), engineer(s) and
employees shall have access to each Site at any time during normal
business hours and from time to time in order to perform such financial
analyses, topographical and engineering surveys, environmental site
assessments and other tests, surveys and studies of the site as each may
deem necessary or appropriate (collectively, the "Tests").
(b) Further, promptly after execution of this letter, HBSH and CareMatrix
will furnish to the other, for its review, complete and accurate copies
of all information, records and documentation concerning the Sites or
the Projects in the possession of each or its representatives,
including, without limitation (but only for informational purposes and
without warranties or representations of any kind regarding accuracy),
plans and surveys, construction, architect and engineer agreements, soil
tests, service contracts, governmental permits and approvals, legal
opinions regarding zoning or environmental matters affecting the
Projects, engineering reports, environmental site assessments, and title
policies or abstracts (collectively, the "Due Diligence Documents").
Each agrees to hold in strict confidence all documents, data and
information obtained from the other, and if the closing of the
applicable Project does not occur, will return the same to the other.
(c) If CareMatrix or HBSH, each in its sole discretion, is dissatisfied with
the results of any of the Tests, or with the content of any of the Due
Diligence Documents, then either may terminate this letter with respect
to any Site and/or Project by written notice to the other on or before
sixty (60) days after each Site Identification Date. Upon such
termination, neither party shall have any further obligations or
liabilities hereunder with respect to the applicable Site(s) and/or the
applicable Project(s).
(d) Notwithstanding the foregoing, with respect to the Xxxx Cove Project,
CareMatrix shall have a period of five (5) business days after the date
hereof in which to conduct its Tests and review the Due Diligence
Documents. If CareMatrix, in its sole discretion, is dissatisfied with
the results of any such Tests, or with the content of any of the Due
Diligence Documents, then CareMatrix may terminate this letter with
respect to the Xxxx Cove Project within such five (5) business day
period. In the event that CareMatrix does not so terminate this letter,
then such Tests and Due Diligence Documents shall be deemed
satisfactory.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 10
(e) Notwithstanding the foregoing, it is acknowledged and agreed that each
of CareMatrix and HBSH is currently conducting its Tests and reviewing
the Due Diligence Documents for each of the Great Neck Project and the
Roslyn Project. This letter with respect to such Projects is subject to
the completion of such tests and the review of such Due Diligence
Documents for such Projects, to the satisfaction of each of CareMatrix
and HBSH, in the sole and absolute discretion of each. If either
CareMatrix and/or HBSH is dissatisfied with the results of any Tests, or
with the content of any of the Due Diligence Documents, relating to
either or both of such Projects, then either may terminate this letter
with respect to the Great Neck Project and/or the Roslyn Project within
a period to be mutually agreed to by the parties.
12. Confidentiality: In the course of the discussions and negotiations each
party may disclose to the other certain proprietary, confidential or
other non-public information (collectively, the "Information") relating
to its respective business, the proprietary, confidential and non-public
nature of which information both parties desire to maintain. Except as
herein set forth, neither party shall (a) reveal or make known to any
person, firm, corporation or entity, other than its own management and
advisors, including its attorneys, accountants and lenders, or (b)
utilize in its own business or (c) make any other usage of, any
Information disclosed to it by the other in connection with the
discussions and negotiations above mentioned. Notwithstanding the
foregoing, (i) each party may disclose any Information received from the
other party to any governmental or regulatory authority in connection
with obtaining approval of the transactions contemplated hereby or as
required by law; and (ii) if required, CareMatrix may disclose any
Information received from HBSH to its lenders in connection with
obtaining their approval of the transactions contemplated hereby and in
connection its ongoing negotiations with The Xxxxxxxx Care Company
("Xxxxxxxx"). Notwithstanding the foregoing, no information will be
provided to Xxxxxxxx without its execution of a confidentiality agreement
in a form reasonably satisfactory to HBSH. A party's obligations with
respect to any item of Information disclosed to it shall terminate if
that item of Information becomes disclosed in published literature or
otherwise becomes generally available to the public; provided, however,
that such public disclosure did not result, directly or indirectly, from
any act, omission, or fault of such party with respect to that item of
Information. Both parties agree that the Information either has received
or may receive from the other has been and will be used by the receiving
party solely for the limited purpose of its investigation and evaluation
of the other party in connection with the transactions contemplated
hereby.
13. Successors: This letter shall be binding upon, and shall inure to the
benefit, of each parties successors and assigns.
Xxxxxxx-Xxxxxx Senior Housing, LLC
June 27, 1996
Page 11
14. Standstill: From and after the date hereof until the execution of the
Joint Venture Agreement, neither party shall enter into, or participate
in, negotiations or discussions with any other party regarding the Joint
Venture or the Projects, without the consent of the other party. Each
party agrees to discontinue all ongoing negotiations with third parties
regarding the Projects.
15. Termination: This letter shall terminate upon the earlier to occur of (i)
December 31, 1996, or (ii) the execution of a master Joint Venture
Agreement for the Projects.
16. Governing Law: This letter shall be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing terms are acceptable to you, please so indicate by
signing and dating the enclosed copy of this letter and returning it to the
undersigned.
Very Truly yours,
CAREMATRIX CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
AGREED AND ACCEPTED
THIS 28th DAY OF JUNE, 1996
XXXXXXX-XXXXXX SENIOR HOUSING, LLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Member
Exhibit A
See attached.
[MAP OF LONG ISLAND]
Exhibit B
See attached.
Page 1 of 2
HRH Construction Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 *PRIVILEGED AND CONFIDENTIAL*
Xxxxxxx-Xxxxxx Senior Housing, LLC,
PROJECT: The MAYFAIR at Xxxx Cove
13-Jun-96
SPEC TRADE GMP Proposal TRADES CLOSED
01000 SITE SURVEY & TEST BORINGS BY OWNER BY OWNER
01005 DEMOLITION 5,000 5,000
02200 EXCAVATION, FOUNDATIONS 750,000 750,000
02350 PILES (W/02200) (W/02200)
02500 SITE IMPROVEMENTS (W/02200) (W/02200)
02900 TOP SOIL & PLANTING (W/02200) (W/02200)
03300 CONCRETE WORK 65,000
03301 GYP-CRETE UNDERLAYMENT 35,000
03310 CONCRETE SIDEWALKS (W/02200) (W/02200)
03410 STRUCTURAL PRECAST CONCRETE 385,000 385,000
04200 MASONRY 660,000 660,000
05500 MISC. METALS & STRUCT. STEEL 97,000 97,000
06100 CARPENTRY AND PROTECTION 1,021,000 1,021,000
06200 MILLWORK 196,700 196,700
06610 GLASSFIBER REINF. POLYESTER (W/06100) (W/06100)
07140 METAL OXIDE WATERPROOFING 4,000
07160 DAMPPROOFING 7,000
07240 EIFS FINISH 130,000
00000 XXXXXXX-XX FIREPROOFING 0
07500 BUILT-UP ROOFING 100,000
07900 CAULKING 25,000
08111 HOLLOW METAL DOORS 45,000
08410 ALUMINUM ENTRANCE WORK 15,000
08520 ALUMINUM WINDOWS AND GLASS (W/06100) (W/06100)
08710 FINISH HARDWARE A 30,000
08800 GLASS AND GLAZING 2,000
09250 GYPSUM DRYWALL (W/06100) (W/06100)
09300 CERAMIC TILE 12,000
09400 TERRAZZO FLOORING 0
09510 ACOUSTICAL TILE (W/06100) (W/06100)
3,500
XXXX COVE PROJECT COST SUMMARY
Construction Costs Under GMP Contract $ 7,219,340
(See Attached)
Land 990,000
Architecture and Engineering 320,000
Redesign Fees 45,000
Architecture Reimbursables 15,000
Kitchen Equipment 115,000
Minor Equipment 100,000
FF&E 567,000
Real Estate Taxes 50,000
Developer's Fee 450,000
Pre-Opening (Marketing, etc.) 250,000
Bond Issuance Costs (See Attached) 599,500
Additional Bond Issuance Costs
Legal 30,000
Xxxx Cove Housing Authority 10,000
Xxxxxxx 25,000
Kapson 25,000
Other Project Costs (See Attached) 205,000
Additional Title Charges 33,000
Construction Loan Expense (See Attached) 660,000
Working Capital 534,000
Pre-Marketing, Feasibility, etc. 28,500
Legal 52,800
Design, Traffic, Environmental 10,750
Title Costs, (Bridge Loan) 16,200
Fencing 5,900
Financing Costs (Bridge Loan-Interest through 5/31/96) 37,500
Permits and Licenses 5,660
Consulting 8,900
-----------
Total Project Cost: $12,409,050
Note: No deal contingency is provided other than HRH Construction contingency
of $225,000 which is included in GMP.
GLEN COVE, NEW YORK
SENIOR LIVING FACILITY REVENUE BONDS
THE MAYFAIR AT XXXX COVE
SERIES 1996
Estimated Costs of Issuance
Underwriter's Discount @ 2.25% of Bond Proceeds $293,287.50
Bond Counsel 55,000.00
Authority Fee (est. at .5% of Bond Proceeds) 65,175.00
Underwriter's Counsel Fee 47,500.00
Underwriter's Expenses 7,500.00
Borrower's Counsel Fee 30,000.00
Printing Fee 7,500.00
Trustee Fee 4,250.00
Bond Purchaser's Counsel 25,000.00
Feasibility Consultant 50,000.00
Contingency 14,287.50
-----------
Total Estimated Costs of Issuance $599,500.00
Other Project Costs
Title Insurance $ 25,000.00
Inspecting Architect 17,500.00
Appraisal 7,500.00
Survey 2,500.00
Phase I Environment Report 2,500.00
Mortgage Recording Fee 20,000.00
Mortgage Tax 130,000.00
-----------
TOTAL $205,000.00
Construction Loan Related Expenses
Construction Loan Interest $589,943.00
Construction Lenders Fee 50,000.00
Construction Lenders Costs 20,000.00
-----------
TOTAL $659,943.00
