Exhibit A
DEVELOPMENT AGREEMENT
THIS AGREEMENT made as of this 18 day of April, 1996, by and between
CHESHIRE CARE, LLC, a Connecticut limited liability company, having an office at
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Cheshire"), and
CAREMATRIX CORPORATION, a Delaware corporation having an office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, formerly known as The CarePlex Group,
which was also located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, and formerly
known as Continuum Care of Massachusetts, Inc. ("CareMatrix").
WHEREAS, CareMatrix has entered into a Property Purchase Agreement with
Fleet National Bank of Connecticut, as Successor Trustee of Home Bank and Trust
Company, Trustee under Article IV of the Last Will and Testament of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (the "Seller") dated as of ________________, 1996 (the "Purchase
Agreement") relating to the purchase of certain property situated on ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Connecticut, containing approximately 9.17 acres, as more
particularly described in the Purchase Agreement (the "Property"); and
WHEREAS, subject to certain terms and conditions, CareMatrix intends to
assign the Purchase Agreement to Cheshire; and
WHEREAS, Cheshire intends to develop the Property as a project of between
90 and 102 "assisted living" elderly residential units, including accessory
on-site parking and customary amenities (the "Project"); and
WHEREAS, Cheshire wishes to retain certain services of CareMatrix in
connection with the development of the Project, and may wish to retain certain
services of CareMatrix in connection with the construction and management of the
Project, and CareMatrix is willing to provide such services on the terms and
conditions set forth herein;
NOW, THEREFORE, for valuable consideration, it is agreed:
1. Performance of the Purchase Agreement. Upon execution of this Agreement,
CareMatrix shall assign to Cheshire the Purchase Agreement, and Cheshire shall
reimburse CareMatrix for its actual out-of-pocket costs paid to unrelated third
parties in obtaining the Purchase Agreement, including all deposits or option
payments, and up to, but not in excess of, Five Thousand Dollars ($5,000.00)
in the aggregate for other costs, including title examination fees and legal
fees. Subject to the terms and conditions of the Purchase Agreement, including
any conditions or contingencies as to Cheshire's obligations thereunder,
Cheshire agrees to perform the buyer's obligations under the Purchase Agreement,
including the acquisition of the Property. Cheshire shall be responsible for all
costs of acquisition of the Property, including, but not limited to, deposits,
taxes, insurance, recording fees, title examination fees, title insurance
premiums and legal fees.
2. Use of Consultants. The architects for the Project shall be ▇▇▇▇▇▇▇▇▇
Associates (the "Project Architects") and the engineers for the Project shall be
▇▇▇▇▇▇ and MacBroom (the
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"Project Engineers"). All contracts between Woodbridge and the Project
Architects and the Project Engineers shall be subject to the prior approval of
CareMatrix. Neither the Project Architects nor the Project Engineers shall be
changed without the prior approval of Cheshire and CareMatrix. The Project
Architects shall be instructed to prepare and submit design criteria and related
site plans and facility schematics for the Project (the "Preliminary Plans"),
which have been reviewed and approved by Cheshire and CareMatrix. After
Development Approvals (as hereinafter defined) have been obtained, Cheshire
shall instruct the Project Architects and the Project Engineers to prepare final
architectural and engineering plans (the "Final Plans"), which shall be
consistent with the Preliminary Plans unless otherwise agreed by Cheshire and
CareMatrix. All changes, additions or revisions to the Preliminary Plans shall
be subject to the approval of Cheshire and CareMatrix. All changes, additions or
revisions to the Final Plans that are not consistent with the Preliminary Plans
shall be subject to the approval of Cheshire and CareMatrix. Cheshire shall
contract directly with the Project Architects and the Project Engineers and
shall be directly responsible for the payment of all fees and expenses payable
to the Project Architects and the Project Engineers after completion of the
Final Plans. Subject to reimbursement as hereinafter set forth, CareMatrix shall
be responsible for the payment of fees and expenses payable to the Project
Architects and the Project Engineers for invoices issued by them pursuant to
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their respective contracts with Cheshire through completion of the Final Plans.
3. Development Approvals. Attached hereto as Exhibit A is a time schedule
for applying for and obtaining Development Approvals and Construction Permits
(both as hereinafter defined), which schedule may be modified from time to time
by agreement of Cheshire and CareMatrix (the "Schedule"). CareMatrix shall, as
Owner's agent, and in accordance with the Schedule, apply for and diligently
pursue all required federal, state and local approvals and permits needed for
the Project, including, but not limited to approvals and permits required under
relevant laws relating to zoning, wetlands, parking and curb cuts, highway and
traffic, historic districts, sewer and water or environmental matters (the
"Development Approvals"), but, excluding permits required to commence
construction on the Property; e.g., building permits, foundation permits,
grading permits, clearing permits or other similar construction related permits
(the "Construction Permits"). Cheshire shall cooperate with CareMatrix and
assist CareMatrix in its efforts to obtain the Development Approvals and shall
sign all necessary applications in connection therewith. CareMatrix shall use
reasonable efforts to obtain the Development Approvals in accordance with the
Schedule. If a Development Approval is denied, CareMatrix shall not be obligated
to appeal such denial; and if a Development Approval is granted, but a third
party appeals such approval, CareMatrix shall not be obligated to defend such
appeal. If CareMatrix elects not to
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appeal a denial or to defend an appeal, as the case may be, as to any
Development Approval other than a necessary zone change, and Cheshire elects to
take such action on its own behalf, the amount otherwise payable to CareMatrix
pursuant to Paragraph 7 shall be reduced by an amount equal to fifty percent
(50%) of the actual out-of-pocket costs incurred by Cheshire in pursuing or
defending such appeal. If Cheshire elects to pursue or defend any appeal
relating to a zone change, such appeal shall be at Cheshire's sole expense.
CareMatrix shall not be liable for delay in obtaining or denial of Development
Approvals unless caused by the negligence, willful act or omission of
CareMatrix. Cheshire acknowledges that any claim of negligence, willful act or
omission of CareMatrix in obtaining the Development Approvals shall constitute a
claim for breach of contract by CareMatrix subject to the default remedies set
forth in Paragraph 12 and not a claim of negligence under tort law. Subject to
the limitations as to expenses of appeals in this Paragraph and subject to
reimbursement as set forth in this Agreement, CareMatrix shall pay all costs,
including attorneys' fees, associated with the Development Approvals.
4. Construction Permits. If all Development Approvals are obtained, and
after all appeal periods relevant thereto have expired without an appeal having
been taken (or, if an appeal has been taken, after such appeal has been
withdrawn, dismissed or adjudicated in favor of Cheshire), CareMatrix shall, as
Owner's agent, and in accordance with the Schedule apply for and
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diligently pursue all Construction Permits required for the Project. Cheshire
shall cooperate with CareMatrix and assist CareMatrix in its efforts to obtain
the Construction Permits and shall sign all necessary applications in connection
therewith. CareMatrix shall use reasonable efforts to obtain the Construction
Permits in accordance with the Schedule. If a Construction Permit is denied,
CareMatrix shall not be obligated to appeal such denial; and if a Construction
Permit is granted, but a third party appeals issuance of such Construction
Permit, CareMatrix shall not be obligated to defend such appeal. If CareMatrix
does not appeal a denial or defend an appeal, as the case may be, as to any
Construction Permit, and Cheshire elects to take such action on its own behalf,
the amount otherwise payable to CareMatrix pursuant to Paragraph 7 shall be
reduced by an amount equal to fifty percent (50%) of the actual out-of-pocket
costs incurred by Cheshire in pursuing or defending such appeal. CareMatrix
shall not be liable for delay in obtaining or denial of Construction Permits
unless caused by the negligence, willful act or omission of CareMatrix. Cheshire
acknowledges that any claim of negligence, willful act or omission of CareMatrix
in obtaining the Construction Permits shall constitute a claim for breach of
contract by CareMatrix subject to the default remedies set forth in Paragraph 12
and not a claim of negligence under tort law. Subject to the limitations as to
expenses of appeals in this Paragraph and subject to reimbursement as set forth
in this Agreement, CareMatrix shall
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pay all costs, including attorneys' fees, associated with the Construction
Permits.
5. Appointment of Manager. CareMatrix shall appoint from time to time a
project manager (the "Project Manager"), subject to Cheshire's reasonable
approval, to oversee the development of the Project. Until further notice from
CareMatrix, the Project Manager shall be: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CareMatrix's Vice
President of Planning and Development or ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CareMatrix's Project
Manager.
6. Project Financing. If all Development Approvals are obtained, and after
all appeal periods relevant thereto have expired without an appeal having been
taken (or, if an appeal has been taken, after such appeal has been withdrawn,
dismissed or adjudicated in favor of Cheshire), Cheshire shall apply for and
diligently pursue a written commitment (the "Commitment") for construction
financing for the Project in an amount which (when combined with the equity of
Cheshire in the Property and any infusion of capital by Cheshire in the Project
and any committed secondary financing), will be sufficient to pay all
development and construction costs for the Project (the "Project Financing").
Cheshire shall use reasonable efforts to obtain the commitment by that date
which is the later of (a) six (6) months after that date on which the
Development Approvals are received; and (b) three (3) months after that date on
which the Final Plans are completed (the "Project Financing Date"). Cheshire
shall be responsible for payment of all costs associated with the Project
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Financing. If Cheshire is unable to obtain the Commitment by the Project
Financing Date, or if Cheshire obtains the Commitment by the Project Financing
Date, but fails to close the Project Financing by that date which is the earlier
of (a) sixty (60) days after issuance of the Commitment; or (b) one hundred
twenty (120) days after transfer of title to the Property to Cheshire if
consummated prior to the Project Financing (the "Financing Closing Date"),
Cheshire shall have the right to extend the Financing Closing Date for two (2)
periods of thirty (30) days each, by written notice of each such extension given
to CareMatrix at least two (2) business days before the then relevant Financing
Closing Date, provided that, for each such extension of the Financing Closing
Date, Cheshire shall pay to CareMatrix a sum equal to one percent (1%) of
CareMatrix's Development Costs as defined in Paragraph 7 (the "Extension
Interest Charge") at the time and in the manner specified in Paragraph 7. If
Cheshire fails to close the Project Financing by the Financing Closing Date, as
it may be so extended pursuant to this Paragraph, CareMatrix shall have the
right, but not the obligation, to acquire the Property and to develop the
Project at a total purchase price equal to the purchase price paid or to be paid
under the Purchase Agreement plus an amount equal to Cheshire's legal fees
relating to the preparation, negotiation and consummation of the Purchase
Agreement plus Forty Thousand Dollars ($40,000.00) (the "Buyout Price"). If
Cheshire has not acquired title to the Property at the date upon which
CareMatrix
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elects to acquire the Property and to develop the Project, the Buyout Price
shall be applied first to amounts due to the Seller under the Purchase Agreement
with any the balance to be paid to Cheshire. If Cheshire has acquired title to
the Property at the date upon which CareMatrix elects to acquire the Property
and to develop the Project, the Buyout Price shall be paid to Cheshire and shall
be allocated in such manner as Cheshire may reasonably request. If CareMatrix
elects to exercise its option to acquire title to the Property and develop the
Project, it shall do so by written notice to Cheshire given within thirty (30)
days after the Project Financing Date or the Financing Closing Date, as it may
be extended pursuant to this Paragraph, whichever is applicable. Within sixty
(60) days after CareMatrix's notice of election to Cheshire, Cheshire shall
transfer title to the Project or assign the Purchase Agreement; assign all
relevant Development Approvals and Construction Permits; if requested to do so
by CareMatrix, assign all architects' contracts, engineers' contracts or other
contracts relating to the Project; and deliver all Preliminary Plans or Final
Plans and all other reports, surveys, studies, or other documentation relating
to the Project (the "Project Documents") to CareMatrix. If Cheshire has acquired
title to the Property, the Property shall be transferred by Cheshire to
CareMatrix by warranty deed free and clear of all encumbrances except those
encumbrances subject to which the Property was conveyed by Seller to Cheshire
non-monetary encumbrances relating to the Development Approvals and/or
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Construction Permits as long as such non-monetary encumbrances do not interfere
with the development of the Project and as otherwise agreed by Cheshire and
CareMatrix; Cheshire shall pay all applicable conveyance taxes and execute
applicable conveyance tax forms, title affidavits and other customary closing
documents; and customary adjustments shall be made as of transfer of title. If
CareMatrix does not exercise its right to acquire the Property and develop the
Project within the time periods specified herein or, if CareMatrix does exercise
such rights and the transfer of title to the Property and the assignment of the
Project Documents to CareMatrix from Cheshire, or the assignment of the Purchase
Agreement and assignment of the Project Documents to CareMatrix from Cheshire
are consummated, neither CareMatrix nor Cheshire shall have any further
obligation or liability to the other for expenses, reimbursements, costs or
liabilities incurred in connection with the Project.
7. Reimbursement of CareMatrix. Upon closing of the Project Financing,
Cheshire shall reimburse to CareMatrix immediately, but without interest (other
than the Extension Interest Charge, if payable), all actual out-of-pocket
development costs paid to unrelated third parties by CareMatrix in connection
with the Project, including, but not limited to, costs relating to the
Development Approvals, the Construction Permits, the Preliminary Plans, and the
Final Plans, but excluding, without limiting the generality of the foregoing,
CareMatrix's legal fees relating to its agreements with Cheshire
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(in contrast to legal fees incurred in connection with the Development Approvals
or Construction Permits or otherwise incurred in connection with the development
of the Project itself) and the internal cost of CareMatrix's staff time
(collectively, the "Development Costs"). If any Development Costs have not been
paid by CareMatrix at the time of the closing of the Project Financing,
CareMatrix shall provide to Cheshire at the time of such closing an accounting
of such unpaid Development Costs, if any, and Cheshire shall reimburse
CareMatrix for such Development Costs within ten (10) days after request for
payment. If CareMatrix fails to include any items of Development Costs as to
which Cheshire has entered into contracts directly with third parties and
CarePlex is administering payments for Cheshire, Cheshire shall remain
responsible for all additional payments due and shall indemnify CareMatrix
against all claims for payments due after the accounting at Closing by such
third parties. If CareMatrix fails to include any items of Development Costs as
to which CareMatrix has entered into contracts directly with third parties,
CareMatrix shall be deemed to have waived its rights to reimbursement for those
items not so included. CareMatrix shall provide to Cheshire and/or its lender
such documentation as Cheshire and/or its lender may reasonably require to
support reimbursement of Development Costs.
8. Construction of the Project. Cheshire agrees that CareMatrix shall be
appointed as either the general contractor or the construction manager of the
Project, the selection of which
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appointment to be in Cheshire's sole and absolute discretion. Within thirty (30)
days after completion and approval of Cheshire and CareMatrix of the Final
Plans, CareMatrix shall deliver to Cheshire a proposed contract for construction
of the Project based upon a Stipulated Sum Contract, AIA Form Al0l (with General
Conditions Form A201), as may be reasonably modified by CareMatrix (the
"Proposed Contract"), which Proposed Contract shall include all construction and
site costs, builder's overhead and profit, and construction management fees, but
shall exclude any pre-existing Development Costs for which CareMatrix is
entitled to reimbursement under this Agreement. The Proposed Contract may
require 100% performance bonds, but shall not obligate CareMatrix to provide
bonds in excess of the Stipulated Sum specified therein less all costs
attributable to furniture, fixtures and equipment. Cheshire may instruct
CareMatrix and/or the Project Architects to make the Preliminary Plans and/or
the Final Plans available to other general contractors to allow the Project to
be competitively bid. Cheshire shall have the right its sole discretion to
select CareMatrix or any other bidder as its general contractor, but shall make
its election and give CareMatrix written notice of its election within thirty
(30) days after receipt of the Proposed Contract. If CareMatrix is selected as
the general contractor of the Project, CareMatrix and Cheshire shall execute the
Proposed Contract with such changes as may be mutually agreed upon by CareMatrix
and Cheshire (the "Construction Contract"), and CareMatrix shall have the right
to
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assign the Construction Contract to any wholly-owned subsidiary of CareMatrix or
to Suffolk Construction, Inc., provided, however, that following such
assignment, CareMatrix shall remain responsible for the performance of its
duties and obligations under the Construction Contract. If CareMatrix is not
selected as the general contractor of the Project, CareMatrix shall serve as the
construction manager of the Project; shall provide customary construction
management services to Cheshire; and shall be paid a fee for such services at
the rate of seven percent (7.0%) of all construction costs (exclusive of change
orders), site costs, fixed equipment costs, and costs for labor associated with
furnishings and finishes (but not the actual cost of furnishings and finishes).
Such fees shall be in addition to Development Costs incurred by and to be
reimbursed to CareMatrix pursuant to this Agreement. If CareMatrix is to serve
as the construction manager, Cheshire and CareMatrix shall execute an AlA-form
construction management agreement, modified to the extent appropriate to be
consistent with the terms of this Agreement.
9. Term of this Agreement. The term of this Agreement shall expire on the
day prior to the third anniversary of the date hereof (the "Termination Date").
If Cheshire has not acquired the Property under the Purchase Agreement for
reasons other than the failure of Cheshire to perform its obligations thereunder
by the Termination Date, or if Cheshire has been unable to obtain Project
Financing by the time specified in
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Paragraph 6, but CareMatrix has not exercised its right to acquire the Property
and develop the Project as described in Paragraph 6, this Agreement shall expire
upon the Termination Date and neither party shall have any continued obligation
or liability to the other for expenses, reimbursements, costs or liabilities
hereunder.
10. Covenant Against Competing Development. Cheshire Affiliates and
CareMatrix are in the process of seeking sites and negotiating agreements for
developments similar to the Project. CareMatrix agrees that until the
termination of this Agreement, neither CareMatrix, nor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or.
▇▇▇▇▇▇ ▇▇▇▇▇▇ or his wife or children and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or his wife or
children (collectively, the "Gosmans"), nor any wholly-owned subsidiary of
CareMatrix, nor any entity 50% or more owned by CareMatrix, or any of its
subsidiaries, or by any of the Gosmans, or by one or more of them, directly or
indirectly (collectively, a "CareMatrix Affiliate"), shall not, for its or their
own account or that of any party other than Cheshire or any other corporation,
limited liability company or partnership in which ▇▇▇▇▇ ▇▇▇▇ is the president,
member, principal stockholder, managing partner or general partner
(collectively, a "Cheshire Affiliate"), contract to purchase or develop property
in the Towns of Orange, Ansonia, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Woodbridge, Naugatuck,
Milford, Hamden, Cheshire or New Haven (other than an assisted-living facility
that may be developed in connection with the so-called ▇▇▇ High School Project
in New Haven) for "assisted-living" elderly
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residential use except after acquisition of the Property pursuant to Paragraph 6
or Paragraph 12 or acquisition of other properties pursuant to analogous
provisions in any other agreement between CareMatrix and a Cheshire Affiliate.
11. Termination Rights. (a) Cheshire shall have the right, at its sole
option, to terminate this Agreement (the "Cheshire Optional Termination") at any
time prior to the execution of either a construction contract or a construction
management contract as described in Paragraph 8 upon (i) written notice to
CareMatrix and (ii) payment to CareMatrix of a termination fee (the "Termination
Fee") equal to (1) all of CareMatrix's actual out-of-pocket costs paid to
unrelated third parties by CareMatrix in connection with the Project, including
all legal fees incurred in connection with the development of the Project and in
connection with CareMatrix's agreements with Cheshire (the "Termination Costs")
plus (2) a sum equal to the lesser of (y) One Hundred Thousand Dollars
($100,000.00) or (z) One Hundred Percent (100%) of the Termination Costs plus
(3) a sum equal to One Thousand Dollars ($1,000.00) per unit approved for the
Project. The Termination Fee shall be payable at the time and in the manner
Development Costs would be payable pursuant to Paragraph 7. Upon exercise of the
Cheshire Optional Termination, other than the obligation to pay the Termination
Fee as provided herein, this Agreement, including, the provisions of Paragraph
10, shall terminate and, except as provided herein, neither CareMatrix nor
Cheshire shall have any further obligation
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or liability to the other for expenses, reimbursement, costs or liabilities
incurred in connection with the Project. In the event that Cheshire exercises
its termination right pursuant to this Paragraph at any time during which
Cheshire has alleged a default by CareMatrix and a right to terminate this
Agreement pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ shall pay to CareMatrix the
Termination Fee as provided in this Paragraph and shall pursue a determination
in arbitration of its allegation of default and right to terminate pursuant to
Paragraph 12. If such determination in arbitration is in favor of Cheshire,
CareMatrix shall refund the Termination Fee paid. If. such determination in
arbitration is in favor of CareMatrix, CareMatrix shall be entitled to retain
the Termination Fee. Each party shall pay its own costs, including attorneys'
fees, incurred in such arbitration.
(b) CareMatrix shall have the right, at its sole option, to terminate this
Agreement (the "CareMatrix Optional Termination") at any time prior to the
execution of either a construction contract or a construction management
agreement as described in Paragraph 8 upon written notice to Cheshire. Upon
exercise of CareMatrix of the CareMatrix Optional Termination, Cheshire shall be
entitled to the same rights as it would have if CareMatrix had defaulted
pursuant to Paragraph 12 without reference to or a determination in arbitration
as to the existence of a default or propriety of termination.
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12. Default. In the event that CareMatrix defaults in its obligations under
this Agreement and/or a CareMatrix Affiliate violates the provisions contained
in Paragraph 10 of this Agreement and such default remains uncured thirty (30)
days after written notice thereof from Cheshire to CareMatrix, Cheshire may
terminate this Agreement after determination in arbitration that CareMatrix or a
CareMatrix Affiliate has so defaulted and that such termination is proper or,
before such determination, in the manner provided in Paragraph 14. Pending such
determination, unless Cheshire exercises the Cheshire Optional Termination, this
Agreement shall remain in effect. Upon such termination by Cheshire after
determination in arbitration that CareMatrix or a CareMatrix Affiliate has
defaulted and that such termination is proper, Cheshire shall not be obligated
to reimburse CareMatrix for any Development Costs not yet paid to CareMatrix;
CareMatrix shall reimburse Cheshire for reasonable legal fees to Cheshire
relating to its agreements with CareMatrix (in contrast to legal fees incurred
in connection with the development of the Project itself); and neither party
shall have any continuing obligation or liability to the other. In the event
that Cheshire defaults in its obligations under this Agreement and such default
remains uncured for thirty (30) days after written notice thereof from
CareMatrix to Cheshire, CareMatrix shall have the right, but not the obligation,
to acquire the Property and to develop the Project at the Buyout Price and
otherwise on the terms and conditions set forth in Paragraph 6, except that if
such default
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occurs prior to the obtaining of Development Approvals, the transfer of the
Property or assignment of the Purchase Agreement and the payment of the Buyout
Price shall be subject to CareMatrix's ability to obtain the Development
Approvals and shall be payable ninety (90) days after receipt of the Development
Approvals and expiration of all appeal periods without an appeal having been
taken (or, if an appeal has been taken, after such appeal has been withdrawn,
dismissed or adjudicated in favor of CareMatrix or Cheshire). During the
pendency of Development Approvals, Cheshire shall cooperate with CareMatrix in
seeking the Development Approvals and sign all necessary applications in
connection therewith. If after such default and election by CareMatrix to
acquire the Property and develop the Project, Cheshire fails to perform its
obligations relating thereto, CareMatrix shall be entitled to pursue all its
rights and remedies at law or in equity, including specific performance.
13. Mutual Representations. (a) CareMatrix warrants to Cheshire that it is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; that it has the corporate power and authority to
make, execute, deliver and perform this Agreement; that this Agreement has been
duly authorized and approved by all required corporate action on its part
required; and that it is not subject to any charter, by-law, mortgage, lien,
lease, agreement, instrument, order, law, rule, regulation, judgment or decree
or any other
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restriction of any kind or character, which would prevent consummation of the
transactions contemplated by this Agreement.
(b) Cheshire warrants to CareMatrix that it is a limited liability company
duly organized and validly existing under the laws of the State of Connecticut;
that it has the power and authority to make, execute, deliver and perform this
Agreement; that this Agreement has been duly authorized and approved by all
required action on its part required; and that it is not subject to any charter,
by-law, mortgage, lien, lease, agreement, instrument, order, law, rule,
regulation, judgment or decree or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
this Agreement.
14. Assignment. Neither party shall assign this Agreement without the
other's prior written consent.
15. Notices. All notices, deliveries or tenders given or made in connection
herewith shall be in writing and shall be deemed given when personally delivered
or three (3) days after being deposited with the United States Postal Service by
certified or registered mail, return receipt requested, or on the day after
being deposited with a commercial overnight courier, addressed as follows:
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To Cheshire:
Cheshire Care, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ & ▇▇▇▇
CityPlace I
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To CareMatrix:
CareMatrix Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
CareMatrix Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esquire
Murtha, Cullina, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
CityPlace I
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
16. Brokers. CareMatrix and Cheshire each represent and warrant to and with
each other that they respectively: (i) have not had any dealings, negotiations
or consultations with any real estate broker, finder or any other party entitled
to a commission in connection with this Agreement (as opposed to any commissions
payable under the Purchase Agreement by the Seller), (ii) have not been induced
to enter into this Agreement by any other real estate broker, finder or other
party entitled to a commission, and (iii) have not incurred and will not incur
any liability for
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finder's fees, brokerage fees or other commissions payable in connection with
this Agreement. CareMatrix shall indemnify and save Cheshire harmless from and
against any loss or damage arising from CareMatrix's breach of its
representation and warranty contained in this Paragraph and Cheshire shall
indemnify and save CareMatrix harmless from and against any loss or damage
arising from Cheshire's breach of its representation and warranty contained in
this Paragraph.
17. Arbitration. Any dispute under this Agreement shall be resolved by
arbitration conducted in accordance with the rules of the American Arbitration
Association through its office in New Haven, Connecticut. Cheshire and
CareMatrix shall each select one (1) arbitrator and the two (2) arbitrators so
chosen shall select a third arbitrator. The panel of arbitrators shall hold one
or more hearings at which CareMatrix and Cheshire may be represented by counsel.
The determination by the panel of arbitrators shall be final, binding and
conclusive upon CareMatrix and Cheshire and judgment rendered by the panel of
arbitrators may be entered in any court of competent jurisdiction. The costs of
arbitration shall be borne by the losing party.
18. Time of the Essence. Time whenever specified herein for performance by
CareMatrix or Cheshire is hereby made and declared to be of the essence of this
Agreement.
19. Governing Law. This Agreement shall be governed by the laws of the
State of Connecticut.
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20. Entire Agreement. This Agreement constitutes the entire agreement by
and between Cheshire and CareMatrix and supersedes any and all previous
agreements, oral or written, between the parties which affects the Property. No
modification of this Agreement nor waiver of any term or condition hereof, shall
be of any force or effect, unless the same is in writing, signed by the parties.
21. Effect. This Agreement shall be binding upon and shall inure to the
benefit of the respective successors and permitted assigns of the parties
hereof. Wherever used herein the singular shall include the plural, the plural
the singular and the use of any gender shall be applicable to all genders.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this _____ day of _________________, 1996.
WITNESSES: CHESHIRE CARE, LLC
/s/ ▇▇▇▇▇ ▇▇▇▇ By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------- ---------------------------------
/s/ [Illegible] Its Managing Director
------------------------------- Hereunto Duly Authorized
CAREMATRIX CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ---------------------------------
/s/ [Illegible] Its Sr. Vice President
------------------------------- Hereunto Duly Authorized
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STATE OF CT :
: ss. 4/18, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ :
Personally appeared ▇▇▇▇▇ ▇▇▇▇, Managing Partner of CHESHIRE CARE, LLC, a
Connecticut limited liability company, signer and sealer of the foregoing
instrument and acknowledged the same to be his/her free act and deed as such
member and the free act and deed of said limited liability company, before me.
/s/ [Illegible]
------------------------------------
Notary Public
My Commission Expires: Aug. 31, 1998
STATE OF :
: ss. , 1996
COUNTY OF :
Personally appeared ____________________,_______________ of CAREMATRIX
CORPORATION, a Delaware corporation, signer and sealer of the foregoing
instrument and acknowledged the same to be his free act and deed as such officer
and the free act and deed of said corporation, before me.
------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
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