Exhibit 10.127
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is by and between CareMatrix of
Massachusetts, Inc., a Delaware corporation, with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Developer"), and Chancellor Senior Housing
Group, Inc., a Delaware corporation, with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or any entity designated thereby as its nominee
(the "Owner"), and is entered into for the purpose of reducing to a formal
writing all of the parties understandings with respect to the development and
construction of an assisted/independent living project to be comprised of
Ninety-Nine (99) units (the "Project") to be located in Pennington, New Jersey
described below (the "Property").
In consideration of the undertakings of each of the parties to the other:
IT IS AGREED:
ARTICLE I
Representations
The parties make each of the following material representations:
Section 1.1 - Title to Property. The Owner shall have or has good, record and
marketable title in fee simple to the Property consisting of approximately 7.39
acres of land as more fully described in Exhibit "A". Exhibit "A" and each of
the other Exhibits referred to in this Agreement shall be incorporated into this
Agreement by such reference as if fully set forth in this Agreement. The
Property shall be (i) free and clear of any and all encumbrances which would, in
the Developer's sole discretion, impair the construction or operation of the
Project except as set forth on Exhibit "B", and (ii) free of any hazardous
wastes or materials except as set forth on Exhibit "C".
Section 1.2 - Encumbrances.
(a) The Owner and the Developer acknowledge that the Property will be
subject to the easements, assessments, conditions, contracts, rights,
claims, encroachments, restrictions and other encumbrances as set forth
on Exhibit "B" (the "Existing Encumbrances"), to physical conditions
disclosed by a boundary survey to be prepared by ▇▇▇▇▇▇ ▇▇▇▇
Associates, dated September 26, 1997, for the Property, and will be
subject to those easements, conditions, contracts, rights, licenses,
encroachments, restrictions and other encumbrances resulting from the
Developer securing regulatory, development and construction approvals
for the Project and attendant site improvements. The Owner and the
Developer each represents to the other that it has reviewed or shall
review the boundary survey and the topographical survey of the Property
and has made a physical inspection of the Property and is satisfied as
to the site characteristics and other attributes in all material
respects.
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(b) Concurrently with the execution of this Agreement, the Owner shall
provide the Developer with copies of all engineering, architectural and
any other plans, studies and surveys, title reports, environmental
assessments, appraisals and other information regarding the Property or
the Project which are in the Owner's possession, custody or control.
(c) The Owner represents, to the best of its knowledge, that the
Property has only the apparent site and off-site conditions, if any, as
set forth on Exhibit "D" which require the implementation of the
measures, if any, as set forth on Exhibit "D".
(d) Commencing on the date that the Developer commences construction in
accordance with the terms of this Agreement, the Owner shall provide
the Developer with full possession and complete control of the Property
for purposes of performing the Developer's obligations hereunder.
Section 1.3 - Permit and Approvals.
(a) The Developer represents that it shall use its best efforts to
obtain, prior to the date of Physical Completion (as hereinafter
defined), all state, federal, county and municipal land use approvals
and permits, licenses, easements, and utility agreements which are
necessary for the development, construction and opening of the Project
on the Property as set forth on Exhibit "E" (the "Developer's
Approvals"). The Developer covenants to diligently use its best efforts
to obtain all of the Developer's Approvals in an expeditious manner. In
the event that the Developer is unable to obtain the Developer's
Approvals, the Developer shall have no liability whatsoever to the
Owner, or any other party and at the Owner's or the Developer's option,
this Agreement shall be terminated without recourse to either party
hereto at law or in equity.
(b) The Owner represents that it shall use its best efforts to obtain,
prior to the date of Physical Completion, all state, federal, county
and municipal land use approvals and permits, licenses, easements, and
utility agreements which are necessary for the development,
construction and operation of the Project on the Property as set forth
on Exhibit "F" (the "Owner's Approvals"). The Owner covenants to
diligently use its best efforts to obtain all of the Owner's Approvals
in an expeditious manner. In the event that the Owner is unable to
obtain the Owner's Approvals, the Owner shall have no liability
whatsoever to the Developer, or any other party and at the Owner's or
the Developer's option, this Agreement shall be terminated without
recourse to either party hereto at law or in equity.
(c) For the sole purpose of permitting the Developer to construct the
Project, the Owner grants to the Developer, to the extent required by
the Developer in order that the purpose of this Agreement be
effectuated, the rights under the Developer's Approvals and the Owner's
Approvals (collectively, the "Approvals") and any other grants of
rights, permits, approvals, or licenses, which may be necessary to
complete the performance of the Developer's obligations hereunder;
provided, however that no transfer or assignment of any of the
foregoing shall occur which is prohibited by applicable law or the
respective terms hereof.
Section 1.4 - Documentation. The Developer shall use its best efforts to obtain,
on behalf of the Owner, construction and permanent financing for the Property,
the Project, the Personal Property (as
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defined herein) and related development costs (collectively, the "Project Loan")
which shall be sufficient, together with the Owner's equity contributions, if
necessary (which shall in no event exceed ten percent (10%) of the total costs
to construct the Project in accordance with the development budget), to pay the
full amount of the total costs to construct the Project in accordance with the
development budget. The Owner covenants that it will provide fully and in a
timely fashion all reasonable documentation required by the lender in connection
with the Project Loan. Such documentation shall include, but is not limited to,
all zoning and plan approvals, all utility letters indicating positive
availability of service, inventory of concessions made to and agreements with
any or all municipal bodies, site plans, title policies, and all other
regulatory body approvals. The Owner also covenants that it will, in a timely
manner, provide whatever financial or other information the lender might
reasonably require in connection with the Developer's applications for financing
for the construction of the Project and as required by such lender in connection
with the Project Loan.
Section 1.5 - Other Agreements. The Owner and the Developer each represents to
the other that neither entering into this Agreement nor performing their
respective obligations hereunder will violate any other agreements or documents
by which either may be bound.
Section 1.6 - Utility Services. The Owner represents that, to the best of its
knowledge, all utility services required to construct and operate the Project
(including, without limitation, public water, sewer and electricity) are
currently available to the Property in the capacities required to operate the
Project. No work need be performed by or on behalf of the Developer to make such
utilities available to the Property for the construction or operation of the
Project, except for the matters, if any, set forth on Exhibit "D". Copies of
letters from the providers of such utility services confirming such availability
are annexed hereto as Exhibit "G".
Section 1.7 - Good Standing of the Developer. The Developer represents that it
is duly organized, validly existing and in good standing under the laws of the
state of the State of Delaware. The Developer represents that it is empowered
and authorized to execute, deliver and perform its obligations under this
Agreement, and, upon such execution and delivery and subject to the conditions
subsequent set forth in Section 5.1, this Agreement shall be valid, binding and
legal obligation of the Developer, enforceable in accordance with its terms and
in compliance with its certificate of incorporation and bylaws and all
applicable laws of the state of its incorporation.
Section 1.8 - Good Standing of the Owner. The Owner represents that it is duly
organized and validly existing under the laws of the State of Delaware. The
Owner represents that it is empowered and authorized to execute, deliver and
perform its obligations under this Agreement, and upon such execution and
delivery and subject to Section 5.1, this Agreement shall be the valid, binding
and legal obligation of the Owner, enforceable in accordance with its terms and
in compliance with its certificate of incorporation and bylaws and all
applicable laws of the State of Delaware.
ARTICLE II
Construction of the Project
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Section 2.1 - Control of Construction. Subject to the express provisions
contained herein, it is the intention of the parties that the Owner shall have
sole, complete and absolute authority and discretion to decide any and all
issues pertaining to the construction of the Project, including, without
limitation, the expenditure of funds, the incurring of costs and all of the
other matters referred to herein.
Section 2.2 - Architectural and Engineering Services. The parties acknowledge
that ▇▇▇▇▇▇▇▇▇ & Associates and their consulting engineers (the "Architect and
Engineers") have or will be retained by the Owner. The Owner represents and
warrants to the Developer that a true, accurate and complete copy of the
Architectural Contract is attached hereto as Exhibit "H" (the "Architect
Contract"). The Developer shall not be responsible to the Owner, or any other
party for any errors, omissions, breaches or failures thereof, or any damages
resulting from the acts or omissions of the Architect. At the Developer's
option, the Owner shall assign to the Developer all of its right, title and
interest in the Architectural Contract and any and all architectural,
engineering and other contracts with respect to the Project free of any claims
other than outstanding amounts owed under the Architectural Contract. In no
event shall the Developer be obligated to assume any of said contracts.
Section 2.3 - Other Professionals and General Assumed Obligations. The Owner
represents that it has not engaged any architects or any engineers, lawyers,
consultants, accountants, or other professionals with respect to the Project,
other than the Architect, which the Owner shall be obligated to pay. The
Developer neither assumes nor shall be obliged for any debts, liabilities or
obligations of the Owner or related to the Property or the Project.
Section 2.4 - Plans and Specifications.
(a) The Architect and Engineers retained by the Owner shall, under the
direction of the Developer and after consultation with the Owner,
prepare basic design plans (the "Basic Plans"). As a part of this
process, the Developer may engage engineers, including the site
engineers, to perform test borings and other soil testing at the
Property for purposes of properly locating the Property on the Project.
The Developer, the Architects and Engineers shall consult with the
Owner during the process of preparing the Basic Plans. The Developer,
Architect and the Engineers shall have access to the Project for all
such tests and surveys.
(b) Within two (2) weeks after the date of the Architect's and the
Engineer's completion and delivery of the Basic Plans, the Owner, the
Developer, the Architect and Engineers shall meet to review and approve
the Basic Plans. The parties shall initial the Basic Plans to indicate
their approval of such Basic Plans.
(c) Upon the approval by the parties of the Basic Plans, the Developer
shall direct the Architect and Engineers to prepare final plans,
specifications and a site plan (collectively the "Final Plans") based
upon the Basic Plans. Within two (2) weeks after the completion of the
Final Plans and their delivery to the Owner, the parties will meet to
review and approve the same, and make any necessary revisions. The
Owner agrees that it will not unreasonably withhold its approval of the
Final Plans if they conform in all material respects to the Basic
Plans. The parties agree to use their best efforts to reach a prompt
and reasonable conclusion concerning the acceptability of the Final
Plans (and the Personal Property, see Section 2.6). The parties shall
initial the Final Plans as an indication of their approval of the same.
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Section 2.5 - Construction. The Developer shall cause the Project to be
constructed in a good and workmanlike manner and in accordance with the Final
Plans, the Approvals, and all applicable laws subject to field changes and minor
design changes. The Project is to be licensed for the unit complement described
above and shall be constructed in accordance with the requirements in effect on
the date of this Agreement as set forth by all federal, state and local
governmental agencies having jurisdiction of the Project, including Life Safety
Code requirements imposed by the Federal Department of Health and Human
Services.
Section 2.6 - Personal Property.
(a) The Developer will furnish the specific items of personal property
contained in Exhibit "I" (the "Furniture, Furnishings & Equipment" or
the "F F & E") required for the Project.
(b) In order to reduce the risk that the F F & E will be delivered
prior to the Closing contemplated herein, the Owner covenants that it
shall approve the F F & E as soon as practicable but not later than
approximately six (6) months prior to the estimated date of Physical
Completion (defined below).
(c) The F F & E does not include kitchen and laundry equipment.
Section 2.7 - Changes. The Owner agrees that the Developer shall also have the
right to make changes in the Final Plans and in the Personal Property if
required by any federal, state or local governmental authority having
jurisdiction over the Project or if required due to the unavailability of any
construction materials or the Personal Property. The Owner shall be notified of
any such changes or substitutions in the Personal Property, however, the Owner
shall have final authority to make all decisions with respect to such changes;
provided, that, such changes result in construction, space, design, personal
property, equipment and interior and exterior design comparable in overall
design and quality to that shown on the Final Plans. Any change that results in
the loss or adjustment of square footage in the Project will require approval by
the Owner.
Section 2.8 - Commencement of Construction. Construction of the Project will
start within thirty (30) days after notification to the Developer by the Owner,
or as soon thereafter as weather and ground conditions permit.
Section 2.9 - Continuity of Construction. Construction, once undertaken, shall
proceed in a continuous and reasonably expeditious manner until Physical
Completion is achieved.
Section 2.10 - Completion of Construction.
(a) For the purposes of this Agreement, the terms "Physical Completion"
or "Physically Completed" shall mean the date on which the building and
improvements described and set forth in the Final Plans have been
completed and the Project shall have been approved for and received a
certificate for temporary or permanent occupancy by the local building
inspector, and by the State Fire ▇▇▇▇▇▇▇▇ in the event his or her
approval is required (the "Certificate of Occupancy"). Physical
Completion shall be deemed to have been achieved notwithstanding
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that any of such officials or agencies have issued a Certificate of
Occupancy with conditions or a Punch-List (as hereinafter defined)
listing items requiring completion or correction, so long as such
conditions or Punch-List items do not prevent or prohibit occupancy as
determined by the Owner, in its sole discretion.
(b) The Developer will use its reasonable best efforts to notify the
Owner at least ninety (90) days prior to the time that the Developer
estimates that the Project will be Physically Completed, whereupon the
Owner will diligently proceed to fulfill all other conditions necessary
for licensure and the Owner will apply in a timely manner for all
licenses and permits necessary to commence operation of the Project as
set forth on Exhibit "C-2". After such notice from the Developer, the
Owner, to the extent necessary to perform administrative activities
may, so long as it does not interfere with completion of construction,
enter upon the Property in an effort to coordinate initial licensure.
Section 2.11 - The Owner's Access. The Owner shall have access to the
construction site while construction is in progress.
Section 2.12 - Punch-List. If, at any time after the Project has been Physically
Completed, there shall exist any item or items requiring completion or
correction, then the Developer agrees to use all reasonable diligence to
complete or correct such item or items so that each conforms to the Final Plans.
The parties shall make a Punch-List of the items requiring completion or
correction (the "Punch List"). Each item on the Punch-List shall be assigned a
reasonable value based upon the reasonable cost of completion or correction of
the same or such other value as may be required by the Owner's lender
("Punch-List Amount"). The Developer shall give its written undertaking to
complete each such item within forty-five (45) days (or such other period of
time as is mutually agreed upon by the parties).
Section 2.13 - Work and Warranties. Upon completion of construction, landscaping
and installation of the Personal Property, the Developer will assist in
obtaining any and all warranties and guarantees received from designers, the
Architect, the general contractor and suppliers of equipment and furnishings.
The Developer will cause the applicable contractor to remedy any defect in
construction caused by poor workmanship or materials which are brought to its
attention by written notice within a period of one (1) year from the date of the
issuance of the Certificate of Occupancy. Aside from the foregoing, the Owner
hereby waives and the Developer hereby disclaims all other express and implied
warranties of every kind or nature with respect to the Project and the Personal
Property, including, without limitation, waiving all IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 2.14 - Financing Arrangements.
(a) The Owner will obtain the Project Loan which shall be sufficient,
together with the Owner's equity contributions, to pay the full amount
of the costs to construct the Project in accordance with the
development budget.
The Owner and the Developer also contemplate that the Property and the
Project, together with all fixtures, furnishing, equipment, and
articles of personal property now owned or hereafter
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acquired by the Owner which are or may be attached to or used in
connection with the Property or the Project, together with any and all
replacements thereto and substitutions therefor, and all proceeds
thereof; and all present and future rents, issues, leases, and profits
of the Property and the Project will serve as security for the payment
obligations to any lenders relating to the Project Loan or otherwise,
and that the Owner will be the principal obligor for the repayment of
all financial obligations thereunder after the transfer of title to the
Owner. The Owner therefore, agrees to execute and deliver all
commitments, promissory notes, mortgages, collateral assignments,
documents, certificates, affidavits, and other writings required to be
executed by any lender in connection with such financing.
Section 2.15 - Form of Conveyance and Status of Title. The Personal Property
shall be conveyed by warranty ▇▇▇▇ of sale and may be subject to the mortgages
and security interests described in Section 2.14.
ARTICLE III
Fees
Section 3.1 - Development Fee. The price to be paid by the Owner to the
Developer for development, pre-marketing, design and other services rendered
pursuant to this Agreement is as set forth on Schedule A attached hereto, as the
same may be amended by mutual agreement of the parties from time to time.
Section 3.2 - Incentive Fee. In the event that the actual costs for the
development and construction of the Project are less than the Projected Project
Costs (such difference being referred to as the "Savings"), fifty percent (50%)
of the Savings shall be paid to the Developer as an incentive fee.
ARTICLE IV
Additional Responsibilities of Parties
Section 4.1 - The Developer's Responsibilities. In addition to its obligations
elsewhere expressed in this Agreement, the Developer (subject to reimbursement)
shall have the following responsibilities:
(a) To obtain the necessary building permits and the Certificate of
Occupancy;
(b) To arrange for and coordinate the obtaining of all labor and
materials required to develop, construct and furnish the Project in
accordance with the Final Plans (except as otherwise expressly set
forth herein);
(c) To at all times, commencing with the date upon which construction
begins, carry the following types of insurance with an insurance
carrier or carriers acceptable to the Owner and the Owner's lender:
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(i) ▇▇▇▇▇▇▇'▇ compensation insurance fully covering all persons
engaged in the performance of this Agreement, in accordance with
applicable law.
(ii) Public liability insurance covering death or bodily injury
with limits of not less than $300,000 for one person and $1,000,000 for
any one accident or disaster; and property damage coverage limits of
not less than $100,000; all of which insurance shall name the Owner's
lender as an additional insured.
The Developer shall furnish to the Owner and the Owner's lender if
required by such lender, duplicate policies of insurance as set forth
in subparagraphs (i) and (ii) hereof. Each of such policies shall, if
the insurance carriers so permit, contain a provision to the effect
that they may not be canceled except upon ten (10) days prior written
notice to the Owner and the Owner's lender.
(d) Upon Physical Completion, the Developer shall deliver to the Owner,
at the Owner's option, duly executed waivers of mechanic's liens signed
by each contractor and subcontractor which provided labor or materials
on the Project.
(e) To expeditiously pursue obtaining commitments for financing the
contemplated construction as provided herein.
(f) To pay for all professional and other staff personnel required for
the pre-opening and operation of the Project in sufficient time to
permit licensure by the applicable governmental agency(ies) at the date
of Physical Completion.
Section 4.2 - Indemnification. The Developer hereby agrees to indemnify and hold
the Owner harmless from all liabilities, claims, and demands for personal injury
or property damage arising out of or caused by any act or omission of the
Developer, its subcontractors, agents, or employees, or arising in or about the
Property at any time from the date of this Agreement until Physical Completion.
ARTICLE V
Contingencies
Section 5.1 - Required Occurrences. This Agreement and the undertakings of the
Developer shall, at the election of the Owner be contingent upon the occurrence
of each of the following:
(a) Approvals. All of the Approvals (to the extent then obtainable) and
current utility availability letters shall have been obtained by April
30, 1998.
(b) Title. An Owner's title insurance policy and Class A-2 ALTA survey,
satisfactory to the Developer, in its sole discretion, shall have been
obtained by the Owner which confirms that there are no exceptions or
conditions which would render title to the Property unmarketable or
which will prohibit or restrict the construction or operation of the
Project or which would prevent an institutional lender from closing a
construction or permanent mortgage loan for the Project in the usual
course of its business.
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(c) Additional Due Diligence Regarding the Property. The Developer
shall have received due diligence information concerning the Property,
satisfactory to the Developer in its sole discretion, including,
without limitation, soil tests and utility service confirmations to the
extent not currently available.
(d) Purchase of the Property. The Owner shall have purchased good
record, marketable fee simple title to the Property as set forth in
Section 1.1.
Section 5.2 - Failure of Contingencies. In the event that any one or more of the
contingencies set forth in this Article is not satisfied, waived or deferred by
the parties in writing, within the period of time set forth above, then, upon
written notice, either party may terminate this Agreement. In such event,
neither party shall have any further responsibility or liability to the other.
The Developer reserves the right, at its option, to waive or defer any one or
more of the conditions precedent.
ARTICLE VI
Additional Covenants of The Owner
Section 6.1 - Confidentiality. The Owner, its partners, affiliates, agents, and
employees hereby agree:
(a) to maintain in the strictest confidence the identity of the
Developer; the contents of this Agreement; the negotiations between the
parties on the terms of this Agreement; and any of the Developer's
proprietary information, including, without limitation, financial
information, projects, copies of leases, real estate appraisals, and
other information regarding the Project and the business affairs and
operations of the Developer which any of said parties obtain from the
Developer in the course of negotiations for the transactions
contemplated hereby (the "Confidential Information");
(b) not to disclose, without the Developer's prior written consent
(except to the extent disclosure is required by applicable law or
regulation), any Confidential Information except to such parties' own
agents, servants and employees, bankers, consultants and other advisors
to whom disclosure is necessary in order to effectuate the transactions
contemplated hereby; and
(c) to comply therewith for a period of one (1) year commencing on the
date of this Agreement.
Section 6.2 - Provision of Further Information. The Owner agrees to supply
complete financial information and any other data required in connection with
the construction or permanent financing for the Project and to execute, and
cause to execute, any and all documents which are required by the terms thereof.
Section 6.3 - Management Agreement. The Owner agrees that the Developer or its
nominee shall have the right to manage the Project beginning approximately one
hundred twenty (120) days prior to completion pursuant to the terms of a
Management Agreement, substantially in the form attached hereto as Exhibit "J".
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ARTICLE VII
Concluding Provisions
Section 7.1 - Entire Agreement. All prior understandings, letters of intent, and
agreements between the parties are merged in and superseded by this Agreement
(including all Exhibits hereto).
Section 7.2 - Representations. None of the parties shall be bound by any
promises, representations, or agreements except as herein expressly set forth.
Section 7.3 - Amendments. This Agreement may not be amended, waived, modified,
altered or changed in any respect whatsoever except by a further agreement, in
writing, executed by each of the parties and consented to by the Owner.
Section 7.4 - Joint Effort. The preparation of this Agreement has been a joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
Section 7.5 - Brokers. Each of the Owner and the Developer represents and
warrants to the other that no broker or finder has acted on its behalf in
connection with this Agreement or the transactions contemplated hereby or
referred to herein; and each agrees to indemnify and hold and save the other
harmless from any claim or demand for commission or other compensation by any
broker, finder or similar agent claiming to have been employed by or on behalf
of such party.
Section 7.6 - Assignment. The Developer shall have no right to assign his rights
nor delegate its obligations under this Agreement to another entity or person
without the prior written consent of the Owner except that the Developer shall
have the right to assign this Agreement to, merge with or consolidate with an
"Affiliate" (defined herein as defined in the Securities and Exchange Act of
1934 and the regulations thereunder) in connection with a public offering,
merger or other transfer.
Section 7.7 - Notices. All notices which may be given to any of the parties
hereunder shall be in writing and shall be hand delivered or sent by registered
or certified mail, return receipt requested, or by Federal Express, and postage
prepaid as follows:
(a) In the event that notice is directed to the Owner, it shall be sent
to it at the address set forth above and a copy therefore sent to
Chancellor Senior Housing Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or at such other address or
addresses the Owner shall from time to time designate by notice to the
Developer.
(b) In the event that notice is directed to the Developer, it shall be
sent to CareMatrix of Massachusetts, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: President, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇, III,
Esq. at the same address; or at such other address or addresses as the
Developer shall from time-to-time designate by notice to the Owner.
The effective date of any such notice shall be the earlier of actual receipt by
the addressee or three (3) days after such notice is properly deposited for
mailing.
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Section 7.8 - Arbitration. Any dispute or controversy arising between the
parties involving the interpretation or application of any provisions of the
Agreement, or arising out of this Agreement, or concerning the construction of
the proposed Project or the furnishing thereof shall be submitted to and
determined by arbitration in accordance with the rules of the American
Arbitration Association then in effect. Section 7.9 - Captions. The captions of
this Agreement are for convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this Agreement or the intent of
any provision hereof.
Section 7.10 - Successors. This Agreement shall be binding upon the parties
hereto, their respective heirs, executors, administrators, successors, and
assigns.
Section 7.11 - Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
Section 7.12 - Severability. The invalidity or unenforceability of one or more
of the phrases, sentences, provisions, clauses, Sections or Articles contained
in this Agreement shall not affect the validity or enforceability of this
remaining portions so long as the material purposes of this Agreement can be
determined and effectuated.
Section 7.13 - Effective Date. This Agreement shall be deemed to be effective as
of the date set forth below.
Section 7.14 - No Offer. The delivery of an unexecuted copy of this Agreement
shall not be deemed an offer. No rights are to be conferred upon any party until
this Agreement has been executed and delivered to each party.
Section 7.15 - Governing Law. This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts.
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Dated this 26th day of September, 1997 and executed under seal.
Witness: CHANCELLOR SENIOR HOUSING GROUP, INC.
__________________________ By: __________________________
Name: Name:
Title:
CAREMATRIX OF MASSACHUSETTS, INC.
_________________________ By: _____________________________
Name: Name:
Title:
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