ASSIGNMENT AGREEMENT
(Tucson, Arizona)
THIS ASSIGNMENT AGREEMENT made this 3rd day of July, 1996, by and among AMA
Funding Corporation ("AMA"), CareMatrix of Massachusetts, Inc. (f/k/a CareMatrix
Corporation), a Delaware corporation ("Assignor"), and Chancellor of
Massachusetts, Inc., a Delaware corporation ("Assignee").
WITNESSETH
WHEREAS, AMA has entered into that certain Letter of Intent (the "Letter of
Intent"), dated December 18, 1995, relating to a certain parcel of land located
in Peoria, Arizona (the "Land"), a copy of which is attached hereto as Exhibit
A;
WHEREAS, Assignor, an affiliate of AMA, intends to co-develop the Land for
an assisted/independent living facility consisting of approximately one hundred
twenty (120) units (the "Project");
WHEREAS, (a) AMA desires to assign its rights and obligations under the
Letter of Intent to Assignor, and (b) Assignor desires to simultaneously
therewith assign certain of its rights and obligations under the Letter of
Intent to Assignee, and (c) Assignee desires to assume such rights and
obligations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. AMA hereby assigns, sets over and transfers unto Assignor to have and
to hold from and after the date hereof, all of the right, title and
interest of AMA in, to and under the Letter of Intent, and Assignor
hereby accepts the within assignment and assumes and agrees with AMA,
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 AMA thereunder to be performed on and after the
date hereof, in the same manner and with the same force and effect as
if Assignor had originally executed the Letter of Intent.
2. Assignor hereby assigns, sets over and transfers unto Assignee to have
and to hold from and after the date hereof, all of the right, title
and interest of Assignor in, to and under the Letter of Intent other
than Assignor's rights and obligations with respect to the development
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,
2
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.
3. Assignor agrees to indemnify and hold harmless Assignee from and
against any and all Claims (as defined in paragraph 5 hereof) accruing
or arising under the Letter of Intent on or before the date hereof.
4. 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.
5. 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).
6. 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.
AMA FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
ASSIGNOR:
CAREMATRIX OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title:
3
ASSIGNEE:
CHANCELLOR OF
MASSACHUSETTS, INC.
By:
-------------------------------------
Name:
Title:
Exhibit A
December 11, 1995
Xx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
RE: Amber Lights - Tucson, AZ; Letter of Intent
Dear Xxxxx:
The purpose of this letter is to set forth the basic terms of a proposed Joint
Venture with Netwest Development Corporation or its nominee ("Netwest") and AMA
Funding Corporation or its nominee ("AMA"), for the development, financing,
ownership and management of a senior housing project consisting of approximately
120 independent and assisted living units (the "Project") on a 4.85-acre site in
Tucson, Arizona (the "Property"), as more particularly described in Exhibit A
attached hereto. Subject to the preparation, execution, and performance of
definitive written agreements (collectively, the "Joint Venture Agreement")
containing the mutual covenants and agreements of the parties, intend to
undertake the following:
1. Joint Venture Agreement: On or before December 31, 1995 (the "Joint Venture
Period"), or an extension for up to a period of not to exceed sixty (60)
days thereafter at the request or either party for reasonable cause or
unless extended by mutual agreement by both parties, AMA and Netwest will
enter into the Joint Venture Agreement relating to the Project (the "Joint
Venture"), which Joint Venture Agreement shall provide, among other things,
that AMA and its principals and colleagues, including, without limitation,
Xxxx XxXxxx-Xxxxx, will obtain an eighty-five (85%) percent interest in the
Project and the property, and Netwest and its principals and colleagues
will obtain a fifteen (15%) percent interest in the Project and the
Property.
2. Development Agreement: The Joint Venture will enter into a development
agreement (the "Development Agreement") with The CarePlex Group, Inc. or
its nominee ("CarePlex") and Netwest (collectively, the "Developers") upon
terms to be mutually agreed upon by the parties. Netwest and CarePlex shall
be listed together on all documents, announcements, submissions or any
other materials as the Developers. The Developers shall work together to
manage the design, planing and construction phases of the Project. CarePlex
and Netwest will work together as a team in good faith to resolve all
issues pertaining to the Project. The Development Agreement will take into
account the expertise and experience of the Developers, who will secure the
necessary zoning, subdivision, environmental, permits and approvals and any
other
applicable permit or approval as may be required for the development of the
Project. The developers will also enter on behalf of the Joint Venture into
such contracts with an architectural/engineering firm, general contractor,
and all other consultants as are necessary for the development and
construction of the Project. Pending further financial analysis, and prior
to the execution of the Joint Venture Agreement, a development fee to be
paid to the Developers (the "Development Fee") and a schedule for payment
thereof, will be mutually agreed upon by the parties.
3. Management Agreement: Simultaneously with the execution of the Development
Agreement, the Joint venture shall enter into a management agreement (the
"Management Agreement") pursuant to which Netwest or its nominee shall have
the right to manage the Project upon completion. Pending further financial
analysis, and prior to the execution of the Joint Venture Agreement, the
terms and conditions of the Management Agreement will be mutually agreed
upon by the parties.
4. Financing: AMA will obtain both construction and permanent financing for
the Project (the "Project Loan"). The Joint Venture shall execute any and
all documents in connection with the Project loan, provided, however, that
the Project Loan will be non-recourse or substantially non-recourse to the
Joint Venture. Pending further financial analysis and prior to the
execution of the Joint Venture Agreement or a date specified therein, the
construction and permanent financing amounts and other terms and conditions
will be mutually agreed upon by the parties.
5. Working Capital: Pending further financial analysis, and prior to the
execution of the Joint Venture Agreement, the estimated working capital
requirements, schedule for disbursement and repayment obligation will be
mutually agreed upon by the parties. It is understood that AMA and Netwest
will contribute eighty-five (85%) percent and fifteen (15%) percent,
respectively, of the working capital requirements for the Project.
6. Decision Making: Prior to the execution of the Joint Venture Agreement, AMA
and Netwest will work together in good faith to resolve all issues
pertaining to the Project. If unable to do so, either party may give notice
to the other of termination of its undertakings under this letter and all
obligations hereunder shall cease and be of no other force or effect.
7. Plans and Specifications: Simultaneously, with the execution of the Joint
Venture Agreement, Netwest shall assign, if any, all of its rights, title
and interest in any and all architectural, engineering and other contracts
with respect to the Project to the Joint Venture or the Developers free of
any claims or encumbrances. The Joint Venture is not obligated to assume
any of said contracts, however, appropriate consideration will be given to
existing relationships, and provided, however, that the architect for the
Project will be Bruker Xxxxx Architects, P.C. In the event that Netwest and
AMA mutually decide to terminate the Joint Venture Agreement, all
architectural/engineering, zoning, and other plans and designs that relate
specifically to the Project will be retained by Netwest for their continued
use.
2
8. Access and Due Diligence: Following the execution of this letter by both
parties, AMA, its agents, representatives, lender(s) architect(s),
engineer(s) and employees shall, after notification to Netwest, have access
to the Property and the Project at any time during normal business hours
and from time to time, at CarePlex's sole cost and expense, in order to
perform such financial analyses, topographical and engineering surveys,
environmental site assessments and other tests, surveys and studies of the
Property and the Project as AMA may deem necessary or appropriate. AMA
and/or CarePlex shall provide Netwest, upon reasonable request, with access
or copies of all information, materials, records or other documents in
connection with the Property or the Project. If AMA, in its sole
discretion, is dissatisfied with the status or quality of title, or
environmental condition of the Property, then AMA may terminate this letter
by written notice to Netwest on or before 5:00 p.m. (Boston) on December
31, 1995 or such other date specified in the Joint Venture Agreement.
9. Miscellaneous: (a) Neither Netwest nor AMA will release information to the
public concerning this letter, the Joint Venture Agreement, and the
transactions contemplated hereby or thereby without the prior written
consent of the other parties, and each party shall consult with the other
as to the form and substance of any press release or other public
disclosure; provided that nothing contained herein shall prevent any party
from disclosing any information required to be disclosed in accordance with
any law, regulation, or order of a court or regulatory agency of competent
jurisdiction; and (b) all information furnished by Netwest to AMA or AMA to
Netwest under this letter shall be treated as confidential and Netwest and
AMA shall take normal and reasonable precaution to preserve the
confidentiality of such information until the Closing and, if this letter
or the Joint Venture Agreement are terminated, whichever shall first occur,
AMA and Netwest shall return to each other all documents and other
materials containing, reflecting, and referring to such information and AMA
and Netwest shall take normal and reasonable precautions to preserve the
confidentiality of such information. AMA's and Netwest's obligations
hereunder shall not apply to any information which: (i) was already in its
possession prior to the disclosure thereof by AMA or Netwest, (ii) was then
generally known to the public, (iii) became known to the public through no
fault of AMA or Netwest or any of their respective agents or
representatives, or (iv) was disclosed to AMA or Netwest by a third party
unaffiliated with AMA or Netwest who to the best of AMA's or Netwest's
knowledge was not bound by an obligation of confidentiality to AMA or
Netwest.
10. Land Purchase: Prior to the execution of the Joint Venture Agreement, AMA
will loan Five Hundred Ten Thousand Dollars ($510,000.00) to Netwest for
the purchase of the Property which loan will be evidenced by a Promissory
Note (the "Note") payable to the order of AMA with an interest rate equal
to the prime rate announced by Fleet Bank, N.A. from time to time and a
repayment obligation upon the earlier of: (i) the expiration of the Joint
Venture Period, or (ii) nine (9) months from the execution date of the Note
or such other date as mutually agreed upon by the parties in writing (the
"Maturity Date"). The Note will be secured by a Deed of Trust, in form and
substance satisfactory to AMA in its reasonable discretion, and joint and
several personal guarantees from the principals of Netwest, which
guarantees shall be satisfactory to AMA in its sole discretion. Upon
obtaining all necessary permits and approvals to develop the Project
(including the expiration of al applicable appeal periods), Netwest will
transfer the property to the Joint Venture in accordance with the terms
thereof. All costs of such transfer shall be borne by the Joint Venture.
The parties shall use their best efforts to structure such transfer in the
least costly manner to the Joint Venture. Notwithstanding the
3
foregoing, in the event the Developers fail to obtain all such necessary
permits and approvals to develop the Project prior to the maturity Date,
AMA shall have the right to terminate the Joint Venture Agreement upon
ten (10) days notice to Netwest.
11. Termination of this Letter: Unless otherwise mutually agreed upon by the
parties in writing, this letter shall terminate the earlier of (i) the
execution of the Joint Venture Agreement, or (ii) December 31, 1995.
12. Non-Binding Letter of Intent: This letter is not intended as a contract,
but merely as a statement of the intentions and undertaking of the parties
except as set forth in Paragraph 9, the terms hereof and the transaction
will be binding upon the parties only in accordance with the terms
contained in the Joint Venture Agreement, if, as, and when such Joint
Venture Agreement has been duly authorized and executed by the parties.
If the foregoing terms are acceptable to you, please so indicate by signing and
dating the enclosed copy of this letter and return it to the undersigned.
Very truly yours,
AMA FUNDING CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE CAREPLEX GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: General Counsel/ Executive VP
AGREED:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
Date: December 11, 1995
4
[LETTERHEAD OF CAREPLEX]
XXX XXXXXXXX
Xxxx 00, 0000
Xx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
RE: Care/Matrix/Amber Lights - Tucson, Arizona
Dear Xxxxx:
Reference is hereby made to that certain Letter of Intent dated December
18, 1996 by and between Netwest Development Corporation ("Netwest") and AMA
Funding Corporation ("AMA") related to the above-referenced project, as amended
(the "LOI"). Reference is further made to Paragraph 1 of the LOI with respect to
the Joint Venture Agreement. This letter shall confirm that the Joint Venture
Agreement Date has been extended to August 30, 1996. In addition, reference is
further made to Paragraph 8 of the LOI with respect to Access and due Diligence.
This letter shall confirm that the Access and Due Diligence Date is hereby
extended to August 30, 1996.
This letter shall also confirm that Care Matrix has funded $65,894.12 to cover
the initial architectural/engineering and due diligence related expenses for the
project. Prior to additional funding and prior to the execution of the Joint
Venture Agreements Care Matrix and Netwest shall agree to a mutually acceptable
preliminary development budget and pre-construction drawn down schedule for
future disbursements by July 31, 1996.
If the foregoing change is acceptable to you, please acknowledge your acceptance
by signing below and returning a copy to me. Except as modified hereby, all
other terms and provisions of the LOI shall remain unchanged by this letter.
Letter to Xx. Xxxx
June 30, 1996
Page 2
Thank you for your attention to this matter.
Very truly yours,
/s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
Senior Vice President/Development Officer
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
[LETTERHEAD OF CAREMATRIX]
XXX XXXXXXX XXXXXXX
Xxxxx 00, 0000
Xx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
RE: CareMatrix/Amber Lights - Tucson, Arizona
Dear Xxxxx:
Reference is hereby made to that certain Letter of Intent dated December
18, 1995 by and between Netwest Development Corporation ("Netwest") and AMA
Funding Corporation ("AMA") related to the above-referenced project, as amended
(the "LOI"). Reference is further made to Paragraph 1 of the LOI with respect to
the Joint Venture Agreement. This letter shall confirm that the Joint Venture
Agreement Date has been extended to June 30, 1996. In addition, reference is
further made to Paragraph 8 of the LOI with respect to Access and Due
Diligence. This letter shall confirm that the Access and Due Diligence Date is
hereby extended to June 30, 1996.
This letter shall also confirm that CareMatrix has funded $65,894.12 to cover
the initial architectural/engineering and due diligence related expenses for the
project. Prior to additional funding and prior to the execution of the Joint
Venture Agreements Carematrix and Netwest shall agree to a mutually acceptable
preliminary development budget and pre-construction drawn down schedule for
future disbursements by June 30, 1996.
Letter to Xx. Xxxx
April 30, 1996
Page 2
If the foregoing change is acceptable to you, please acknowledge your
acceptance by signing below and returning a copy to me. Except as modified
hereby, all other terms and provisions of the LOI shall remain unchanged by this
letter.
Thank you for your attention to this matter.
Very truly yours,
/s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
Senior Vice President/Development Officer
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
[LETTERHEAD OF CAREMATRIX]
XXX XXXXXXX XXXXXXX
Xxxxx 00, 0000
Xx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
RE: CarePlex/Amber Lights - Tucson, Arizona
Dear Xxxxx:
Reference is hereby made to that certain Letter of Intent dated December
18, 1995 by and between Netwest Corporation ("Netwest") and AMA Funding
Corporation ("AMA") related to the above-referenced project, as amended (the
"LOI"). Reference is further made to Paragraph 1 of the LOI with respect to the
Joint Venture Agreement. This letter shall confirm that the Joint Venture
Agreement Date has been extended to April 30, 1996. In addition, reference is
further made to Paragraph 8 of the LOI with respect to Access and Due Diligence.
This letter shall confirm that the Access and Due diligence Date is hereby
extended to April 30, 1996.
This letter shall also confirm that CarePlex has agreed to commit $75,000
to cover the initial architectural/engineering and due diligence related
expenses for the project. CarePlex and Netwest shall agree to a mutually
acceptable preliminary development budget and pre-construction drawn down
schedule for future disbursements by April 1, 1996.
Letter to Xx. Xxxx
March 20, 1996
Page 2
If the foregoing change is acceptable to you, please acknowledge your
acceptance by signing below and returning a copy to me. Except as modified
hereby, all other terms and provisions of the LOI shall remain unchanged by this
letter.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
3/20/96
[LETTERHEAD OF CAREPLEX]
February 22, 1996 Via Facsimile
Xxx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxx, XX 00000
Re: Amber Lights - Tucson, AZ
Dear Xxxxx:
Reference is hereby made to the certain Letter of Intent ("LOI") dated December
11, 1995 by and between Netwest Development Corporation ("Netwest") and AMA
Funding Corporation ("AMA") and as amended in accordance with letters dated
December 28, 1995 and January 22, 1996, related to the above-referenced project.
Reference is further made to Paragraph 1 of the LOI with respect to the Joint
Venture Agreement. This letter shall confirm that the Joint Venture Agreement
Date has been extended from February 23, 1996 to March 1, 1996. In addition,
reference is further made to Paragraph 8 of the LOI with respect to Access and
Due Diligence. This letter shall confirm that the Access and Due Diligence Date,
is hereby extended from February 23, 1996 to March 1, 1996.
If the foregoing is acceptable to you, please acknowledge your acceptance by
signing and returning a copy to me. Except as modified hereby, all of the other
terms and provisions of the LOI shall remain unchanged.
Thank you for your attention to this matter.
With best regards,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Senior Vice President/Development Officer
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
2/22/96
KJM:clb
pc: Xxxxxx Xxxxxx
Xxxxx X. Xxxxx, III, Esq.
[LETTERHEAD OF CAREPLEX]
January 22, 1996 Via Facsimile
Xxx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Re: Amber Lights - Tucson, AZ
Dear Xxxxx:
Reference is hereby made to that certain Letter of Intent (the "LOI") dated
December 11, 1995 by and between Netwest Development Corporation ("Netwest") and
AMA Funding Corporation ("AMA") and as amended in accordance with a letter dated
December 28, 1995, related to the above-referenced project. Reference is further
made to Paragraph 1 of the LOI with respect to the Joint Venture Agreement. This
letter shall confirm that the Joint Venture Agreement Date has been extended
from January 26, 1996 to February 23, 1996. In addition, reference is further
made to Paragraph 8 of the LOI with respect to Access and Due Diligence. This
letter shall confirm that the Access and Due Diligence Date, is hereby extended
from January 26, 1996 to February 23, 1996.
If the foregoing is acceptable to you, please acknowledge your acceptance
by signing below and returning a copy to me. Except as modified hereby, all
other terms and provisions of the LOI shall remain unchanged.
Thank you for your attention to this matter.
With best regards,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Senior Vice President/Development Officer
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: President
pc: Xxxxxx Xxxxxx
Xxxxx X. Xxxxx, III, Esq.
[LETTERHEAD OF CAREPLEX]
January 22, 1996 Via Facsimile
Xxx. Xxxxxxxxx X. Xxxx
President
Netwest Development Corporation
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Re: Amber Lights - Tucson, AZ
Dear Xxxxx:
Reference is hereby made to that certain letter of Intent (the "LOI") dated
December 11, 1995 by and between Netwest Development Corporation ("Netwest") and
AMA Funding Corporation ("AMA") and as amended in accordance with a letter dated
December 28, 1995, related to the above-referenced project. Reference is further
made to Paragraph 1 of the LOI with respect to the Joint Venture Agreement. This
letter shall confirm that the Joint Venture Agreement Date has been extended
from January 26, 1996 to February 23, 1996. In addition, reference is further
made to Paragraph 8 of the LOI with respect to Access and Due Diligence. This
letter shall confirm that the Access and Due Diligence Date, is hereby extended
from January 26, 1996 to February 23, 1996.
If the foregoing is acceptable to you, please acknowledge your acceptance
by signing below and returning a copy to me. Except as modified hereby, all
other terms and provisions of the LOI shall remain unchanged.
Thank you for your attention to this matter.
With best regards,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Senior Vice President/Development Officer
ACKNOWLEDGED AND AGREED TO:
NETWEST DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxx 1-26-96
-----------------------------
By: Xxxxxxxxx X. Xxxx
Title: President
pc: Xxxxxx Xxxxxx
Xxxxx X. Xxxxx, III, Esq.
