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EXHIBIT 10.23
(________ )
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") is made as of _______________
____________, by and between BALANCED CARE CORPORATION, a Delaware corporation
having a principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Assignor") and CAPSTONE CAPITAL OF
PENNSYLVANIA, INC., a Pennsylvania corporation having a principal place of
business at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (the
"Assignee").
WHEREAS, the Assignor is the Purchaser and _________________________
_____________________________ is the Seller under that certain Asset Purchase
Agreement dated as of __________________ (the "Asset Purchase Agreement"):
capitalized terms used herein and not otherwise defined have the meanings
provided for therein; and
WHEREAS, the Assignor desires to assign all of its rights and certain
of its obligations under the Asset Purchase Agreement to the Assignee; and
WHEREAS, a condition to Assignee's agreement to accept an assignment of
Assignor's rights and certain of its obligations under the Asset Purchase
Agreement (the "Assignment") is the execution of a Lease Agreement of even date
herewith ("Lease Agreement") by and between Assignee, as lessor, and __________,
a Delaware corporation and a wholly owned subsidiary of Assignor ("BCC"), as
lessee, with respect to the Purchased Assets, together with all other documents
provided for or contemplated by the Lease Agreement, including, without
limitation, a guaranty agreement to be executed by Assignor in favor Assignee
with respect to all obligations of BCC under the Lease Agreement, all in form
and content satisfactory to Assignee; and
WHEREAS, Assignee's agreement to accept the Assignment is further
subject to those conditions, limitations and agreements of Assignor set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby act and
agree as follows:
1. (a) Except as provided in subsection (b) below, the Assignor hereby
assigns, sets over and transfers to the Assignee all of the Assignor's right,
title and interest as the Purchaser under the Asset Purchase Agreement,
including, without limitation, any Purchaser Indemnitee's right to
indemnification by Seller under the Asset Purchase Agreement. The Assignor
further relinquishes and conveys to Assignee all of Assignor's right, title and
interest in and to the Real Property Owned and equipment, machinery and other
tangible personal property ("Equipment").
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(b) Notwithstanding subsection (a) above, Assignor does not assign
to Assignee any of Assignor's rights under the Asset Purchase Agreement
relating to the Other Assets. For this purpose, the term "Other Assets" means
all intangible personal property conveyed pursuant to the Asset Purchase
Agreement, including, but not limited to, goodwill and the "going concern" of
the Business. In no event does the term "Other Assets" include any Real
Property Owned, Equipment or any intangible assets directly related thereto.
2. The Assignor represents and warrants to the Assignee that (a) the
Assignor has not made or executed any other assignment of any of its rights
under the Asset Purchase Agreement, (b) the Assignor has all requisite
corporate power and authority to execute, deliver and perform this Agreement,
(c) the Asset Purchase Agreement is in full force and effect and the Seller and
the Assignor have fully performed their respective obligations thereunder as of
this date, (d) a true and correct copy of the Asset Purchase Agreement has been
provided to the Assignee by the Assignor and (e) except as already obtained,
the execution and delivery of this Agreement by the Assignor and the
performance of its obligations hereunder do not require the consent, license,
permission, action or approval by any party, including, without limitation, the
Seller.
3. The Assignee's obligations under the Asset Purchase Agreement shall
be limited solely to (a) payment of the Purchase Price and (b) acceptance of
delivery of a deed to the Real Property Owned together with and any other
documents required to be delivered under the Asset Purchase Agreement on the
Closing Date. The Assignee shall not be responsible to Seller or to any other
party for the performance of any agreements, covenants, warranties, obligations
and liabilities of the Purchaser under the Asset Purchase Agreement, except as
specifically provided for herein.
4. Except as set forth in Section 3 above, the Assignor shall be
liable to the Seller for, and the Assignor covenants and agrees with the
Assignee that the Assignor will fulfill and perform, all of the Purchaser's
obligations under the Asset Purchase Agreement, including, without limitation,
the Purchaser's obligation to indemnify any Seller Indemnitee under the Asset
Purchase Agreement.
5. In addition to the parties to whom notice is to be given under
Section 15.5 of the Asset Purchase Agreement, any notice to be given or
received by the Purchaser shall also be given to the Assignee, as follows:
If to Assignee, to:
Capstone Capital of Pennsylvania, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a required copy to:
Johnston, Barton, Xxxxxxx & Xxxxxx
0000 XxXxxxx/Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
6. This Agreement shall be binding upon and insure to the benefit of
the parties hereto and their respective successors and assigns.
7. This Agreement may be executed in one or more counterparts, all of
which shall constitute one and the same instrument. This Agreement is intended
to take effect as a sealed instrument and shall be construed in accordance with
the laws of the State of Alabama.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of the date and year first written above.
ASSIGNOR:
BALANCED CARE CORPORATION, a Delaware
Corporation
By:
-------------------------------
Name:
Title:
ASSIGNEE
CAPSTONE CAPITAL OF PENNSYLVANIA, INC.
a Pennsylvania Corporation
By:
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Name:
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Title:
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SCHEDULE TO EXHIBIT 10.23 FILED PURSUANT TO INSTRUCTION 2 TO ITEM 601(a) OF
REGULATION S-K
ASSIGNMENT AGREEMENT
PROJECT SELLER LOCATION DATE
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Bloomsburg, PA Bloomsburg Manor Personal Care and Bloomsburg, PA 1/31/97
Retirement Center
Blakely, PA Xxxxxxx-Xxxx Health Care Center Peckville, PA 1/31/97
Kingston I, PA Kingston Manor Personal Care and Kingston, PA 1/31/97
Retirement Center
Kingston II, PA Kingston Health Care Center Kingston, PA 1/31/97
Mid-Valley, PA Mid-Valley Manor Personal Care and Peckville, PA 1/31/97
Retirement Center
Old Forge, PA Old Forge Manor Personal Care and Old Forge, PA 1/31/97
Retirement Center
West View, PA West Side Manor Personal Care and Wyoming, PA 1/31/97
Retirement Center
Missouri Xxxxx X. Xxxxx, Xxxxx X. Xxxxx and Nevada, MO (3 locations) 5/15/97
Heavenly Health Care, Inc. d/b/a Xxx Xxxxx
Residential Care Homes
Harrisburg, PA Xxxxxx Xxxxxx and Xxxxx X. Xxxxxx Dauphin County, PA 3/28/97
Ravenna, OH Xxxx X. Xxxxx, Xx. Portage County, OH 3/28/97
Greensboro, NC Xxxxx X. Xxxxxxxxxx, R.E. Xxxxxxxxxx, Jr. Guilford County, NC 3/28/97
and Xxxxxx X. Way
