RELEASE AGREEMENT
This RELEASE AGREEMENT ("Release Agreement") is made and
entered into this 5th day of January, 1998 by and between Xxxxx
Xxxxxx ("Xxxxxx") and Consolidated Health Care Associates, Inc.
("Consolidated").
RECITALS
WHEREAS, Consolidated and Xxxxxx heretofore entered into a
certain Stock given to Purchase Agreement dated September 30,
1993 (the "Purchase Agreement") pursuant to which Xxxxxx
conveyed to Consolidated certain stock and assets of Physical
Therapy Associates, Inc., and Xxxxx Xxxxxx PT Professional
Fitness Programs, (the "Stock");
WHEREAS, pursuant to the Purchase Agreement, Consolidated
executed and delivered to Xxxxxx a certain Promissory Note (the
"Note") in the original principle amount of $500,000 dated
September 30, 1997 and amended December 2, 1994 and further
amended on May 30, 1996 and a certain Convertible Promissory
Note (the "Convertible Note") in the original principle amount
of $500,000 and amended May 30, 1996 collectively (the
"Transaction Instruments");
WHEREAS, Consolidated has failed to make various payments
due to Xxxxxx under the Note and the Convertible Note, and
Xxxxxx has given notice of each such failure by timely notice,
properly to Consolidated under the covenants of the Transaction
Instruments;
WHEREAS, pursuant to the agreement herein described
Consolidated and Xxxxxx have agreed that as consideration for
the (a) forgiveness of the Note and the Convertible Note and
assignment of the Office Lease Agreements (the "Lease
Agreements") Consolidated and Xxxxxx will enter into this
Release Agreement.
NOW THEREFORE, in consideration of the foregoing recitals,
the sum of Ten Dollars ($10.00) and other good and valuable
consideration, receipt of which is hereby acknowledged, and
intending to be legally bound hereby, Consolidated and Xxxxxx
agree as follows:
AGREEMENT
1. Incorporation of Recitals The foregoing Recitals are
true and correct and hereby incorporated into this Release
Agreement as if full set forth herein. Except as expressly
provided in this Release Agreement, the terms and conditions of
the Transaction Instruments, and each of the Transaction
Instruments, shall remain in full force and effect.
2. Effective. Date. The date of this Release Agreement
("Effective Date") shall be the date when Consolidated and
Xxxxxx have executed this Release Agreement and Xxxxxx has
received the consideration as defined hereinbelow.
A. Consideration: As consideration for the release
of the indebtedness of the Transaction Instruments as herein
described Xxxxxx agrees to Release Agreement in consideration
of the following;
(I) The delivery of the sum of ONE HUNDRED AND
FIFTY
THOUSAND DOLLARS ($150,000) and the payment of all agreed upon
legal expenses incurred in the amount of $ 4,589.22.
(II) The acceptable assignment of the Lease
Agreement for the office at Unit 000 Xxxxxx Xxxxx, Xxxxxx, XX.
to a qualified tenant known as Healthsouth Corporation or
nominee in a manner acceptable to Xxxxxx and the agreement of 3
months under the existing lease for the Xxxxxxxxx'x road
facility to terminate 90 days from the date of January 1,
1998..
3. Release
Consolidated and Xxxxxx agree that Transaction Instruments
and the provision for
payments therein have been satisfied through the acceptance of
the consideration by Xxxxxx. In furtherance (but not in
limitation) Consolidated and Xxxxxx hereby waive, for
themselves, and their respective successors and assigns, any
and all claims, demands, rights, and causes of action of any
kind which they never had, now have, or which any personal
representative, successors, heir or assign of Consolidated or
Xxxxxx hereafter can, shall or may have against each other,
for, upon or by reason of any matter, cause or thing
whatsoever, arising out of or in any manner connected with the
Transaction Instruments.
4. Governing Law Venue Consolidated and Xxxxxx
acknowledge and agree that this Release Agreement and the
Transaction Instruments (and each of them, including without
limitation the Lease Agreements) shall be governed by the Laws
of the State of Delaware. Further the sole and exclusive venue
for any litigation arising out of this Release Agreement or the
Transaction Instruments shall be the State of Delaware.
5. Attorneys' Fees and Costs. Consolidated and Xxxxxx
agree that, in connection with this agreement all prior agreed
attorney fees for Xxxxxx shall be added to the total
consideration paid as provided for in section 2 herein, and that
any litigation arising out of this Release Agreement and the
Transactions Instruments, the prevailing party shall be entitled
to recover its taxable costs and reasonable attorney's fees
incurred therein.
6. Authority. The persons executing this Release
Agreement on behalf of each of the parties hereto that are not
individuals are, or have been, authorized to do so in accordance
with the governing document of their respective entity and in
accordance with applicable law.
7. Captions. The captions inserted in this Agreement are
for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Agreement, or any provision
hereof, or in any way affect the interpretation of this Release
Agreement.
8. Binding Effect., The Terms of this Release Agreement
shall be binding upon the successors and assigns of the parties
hereto.
9. Counterparts, Execution and Delivery By Facsimile.
The parties agree that this document may be executed in any
number of counterparts, each of which shall be deemed an
original, all of which taken together shall constitute but one
and the same instrument.
10. Conflict Between Terms and Conditions for the Release
Agreement and the Transaction Instruments; No Construction
Against Drafter.
In the event any term or condition of the (a)
Transaction Instruments (b) Release Agreement, conflicts with
any term or condition of this Release Agreement, the terms and
conditions of this Release Agreement shall control. This
Release Agreement is the result of a negotiated transaction
between Consolidated and Xxxxxx, each of which has had access to
legal counsel. Accordingly, it is further agreed that
interpretation and construction of this Agreement, shall not be
construed against the drafter.
IN TESTIMONY WHEREOF, witness our signatures effective as of the
Effective Date
XXXXXX
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx Witness:
Date:
Witness:
State of Delaware
County of
I HEREBY CERTIFY that, on this day before me, an officer
duly qualified to take acknowledgments, personally appeared
Xxxxx Xxxxxx an individual, who is personally known to me or who
has produced a Delaware Driver's License as identification and
who did not take any oath, and who executed the foregoing
instrument and who acknowledged before me that she executed the
same on behalf of said corporation for the purposes set forth
therein.
WITNESS my hand and seal in the County and State last
aforesaid this _ day of November, 1997
Notary Public
Commission No.:
My Commission expires:
CONSOLIDATED:
Xxxxxx X. Xxxxxx, President Witness:
Date:
Witness:
State of Massachusetts
County of
I HEREBY CERTIFY that, on this day before me, an officer
duly qualified to take acknowledgments, personally appeared
Xxxxxx X. Xxxxxx as President of Consolidated Health Care
Associates, Inc. and an individual, who is personally known to
me or who has produced a Massachusetts Driver's License as
identification and who did not take any oath, and who executed
the foregoing instrument and who acknowledged before me that she
executed the same on behalf of said corporation for the purposes
set forth therein.
WITNESS my hand and seal in the County and State last
aforesaid this _ day of November, 1997
Notary Public
Commission No.:
My Commission expires:
