PURCHASE AND SALE AGREEMENT
AGREEMENT made as of the ___ day of May, 1996 by and between CareMatrix
Corporation, a Delaware corporation (including any and all nominees permitted
hereunder "Buyer"), having an address at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, and XXXXXX-XXXXXXXX REALTY CORPORATION, a Connecticut
corporation ("Seller"), having an address at 00 Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxx
00000-0000.
WITNESSETH:
In consideration of the mutual covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer and Seller hereby agree as follows:
1. AGREEMENTS TO SELL AND PURCHASE; DESCRIPTION OF PROPERTY; NOMINEE.
(a) Purchase and Sale. Seller agrees to convey to Buyer and Buyer hereby
agrees to purchase from Seller, for the price and upon the terms and conditions
set forth herein, the following:
(i) The land located in Avon, Connecticut on Route 44, containing
approximately 6.568 acres of land, described on Exhibit 1.1 attached hereto and
made a part hereof, and all easements and rights of way appurtenant to such
land, and all of Seller's right, title and interest in and to any alleys, strips
and gores abutting or adjoining such land and in and to any highways, streets,
and ways abutting or adjoining the Land (hereinafter, collectively, the "Land").
For title reference purposes, see deed(s) recorded in the Land Records of the
Town of Avon and the metes and bounds description set forth on said Exhibit 1.1;
and
(ii) all buildings, structures and other improvements, if any, located
on the Land (collectively, the "Improvements"); and
(iii) an easement to discharge storm water into wetlands located on
land owned by the Seller as shown on Exhibit 1.1(a) ("Drainage Easement").
The Land and Improvements and Drainage Easement are, collectively, referred
to as the "Property". The Seller shall reserve an easement for a sanitary sewer
line including, without limitation, the right to construct such line and the
right to convey such easement to the Town of Avon. Such easement shall be in the
location set forth on the map attached hereto as Exhibit 1.1(a).
(b) Intended Use. Seller understands and acknowledges that Buyer intends to
develop and use the Property as an assisted living facility comprised of at
least One Hundred Eight (108) units, together with related improvements,
parking, and landscaping (the "Intended Use").
(c) Nominee. Seller acknowledges and agrees that Buyer shall have the right
to designate a nominee to take title to the Property by notice to Seller given
not later than the Closing Date (as defined below). Any entity in which the
principals or affiliates of Buyer own or control, directly or indirectly, at
least 50% of the stock, partnership interests or beneficial interests, as the
case may be, or any master limited partnership or real estate investment trust
organized by Buyer or any of the principals or affiliates of Buyer, will be
deemed a nominee for the purposes of this Section. In addition, Buyer may assign
this agreement to an unrelated third party, provided, however, that in any such
event the Buyer shall remain primarily liable to the Seller for each of the
Buyer's obligations hereunder.
2. PURCHASE PRICE: DEPOSIT; ADJUSTMENTS; ESCROW.
(a) Purchase Price: The agreed purchase price for the Property (the
"Purchase Price") is One Million Three Hundred Thirteen Thousand Six Hundred
Dollars ($1,313,600), which Purchase Price shall be payable as follows:
(i) Twenty Thousand Dollars ($20,000) previously paid (and held in
escrow in accordance with the terms of this Agreement by Xxxxxxxxx, Xxxxxx &
Xxxx, P.C. (the "Escrow Agent") (the "Initial Deposit");
(ii) Twenty Thousand Dollars ($20,000) previously paid (and held in
escrow in accordance with the terms of this Agreement by the Escrow Agent for
the period beginning on the day after February 15, 1996 (the "Commitment Date")
through the ninetieth (90th) day after the Commitment Date (the "First Extension
Period");
(iii) Twenty Thousand Dollars ($20,000) previously paid (and held in
escrow in accordance with the terms of this Agreement by the Escrow Agent named
below) on the day after the last day of the First Extended Period for the period
beginning on the day after the last day of the First Extended Period and through
the ninetieth (90th) day thereafter (the "Second Extended Period"); and
(iv) Twenty Thousand Dollars ($20,000) will be paid (and held in
escrow in accordance with the terms of this Agreement by the Escrow Agent named
below) on the day after the last day of the Second Extended Period for the
period beginning on the day after the last day of the Second Extended Period
through the ninetieth (90th) day thereafter (the "Third Extension Period"). The
Twenty Thousand Dollar ($20,000) payments referred to in Item (ii) - (iv) above
are hereinafter collectively referred to as the ("Additional Deposits");
- 2 -
(v) The Initial Deposit and the Additional Deposits (collectively the
"Deposits") are to be delivered to Seller by the Escrow Agent at the time of
delivery and recording of the Deed (as defined below); and
(vi) The balance of the Purchase Price is to be paid by Buyer to
Seller at the time of delivery and recording of the Deed (as defined below) in
cash or by certified check or by wire transfer to an account designated by
Seller, which designation shall be made not less than one business day prior to
the Closing Date.
(b) Deposit. (i) The Deposits shall be held in an interest-bearing escrow
account as provided in an Escrow Agreement by and between the Seller, the Buyer
and the Escrow Agent, dated December 21, 1995 ("Escrow Agreement"), subject to
the terms of the Escrow Agreement and this Agreement, and shall be duly
accounted for at the Closing (as defined below) . All interest on the Deposits
is to be accounted for and shared equally between Buyer and Seller if the
Closing occurs; or paid to Buyer if the Deposits are returned to Buyer under the
terms of this Agreement; or if Seller shall retain the Deposits under the terms
of this Agreement, then the entire amount of the interest shall be paid to
Seller.
(ii) Except in the event of a default by the Buyer as set forth in
paragraph 7.(b) or otherwise under the terms of this Agreement, notwithstanding
anything contained herein to the contrary, in the event the Closing does not
occur on or before the last day of the Third Extended Period (through no fault
of the Seller), Fifteen Thousand Dollars ($15,000) of the Additional Deposits
made for the First Extension Period through the Third Extension Period and any
extension payments made pursuant to Section 3.(b) shall become non-refundable to
the Buyer. All payments made hereunder as the Initial or Additional Deposits
shall be credited in full against the Purchase Price, with interest on the
Initial Deposit and the Additional Deposit to be treated as set forth in (b)(i)
above.
(c) Adjustments. The Purchase Price shall be adjusted to reflect the
following:
(i) Water and sewer use charges, charges for electricity, gas and
other utilities, operating expenses and collected rents, if any, and real
property taxes with respect to the Property for the then current fiscal tax
period, shall be apportioned as of the Closing Date, and the net amount shall be
added to or deducted from the Purchase Price, as the case may be.
(ii) Each party shall pay its own attorney's fees incurred in
connection with the negotiation of this Agreement and consummation of the
transactions contemplated by this Agreement, except as otherwise expressly
provided herein. Seller shall pay the cost of all state and municipal real
estate conveyance taxes assessed with respect to the sale of the Property, and
recording fees for releases and other documents required to clear title or to
comply with its obligations hereunder (except for fees for releases of liens
created by the actions of the Buyer, its servants, agents or independent
contractors). Buyer shall pay for recording costs of the Deed, the releases of
liens created by the actions of the Buyer, its
-3-
servants, agents or independent contractors and any loan documents relating to
Buyer's financing for the Property, as well as the costs of any survey, owner's
or lender's title insurance policy, environmental site assessment or appraisal
which Buyer may elect to obtain in connection with its acquisition of the
Property.
(iii) If at any time following the malting of any of the adjustments
to the Purchase Price, the amount thereof shall prove to be incorrect, or it
should be discovered that some adjustment which should have been made was
inadvertently omitted altogether, the party in whose favor the error was made
shall pay the sum necessary to correct such error to the other party promptly
following receipt of notice of such error from such other party. The provisions
of this Section 2(c)(iv) shall survive the delivery of the Deed for a period of
one year from the date of such delivery.
3. CLOSING; EXTENSIONS.
(a) Closing Date and Place. The time for the delivery of the Deed and for
the performance of the other terms and conditions of this Agreement (the
"Closing"), shall be 10:00 A.M. on September 30, 1996 (as the same may be
extended pursuant to the provisions hereof, the "Closing Date") at the offices
of the Escrow Agent, or at such other place or time as shall be mutually agreed
upon by Buyer and Seller. It is agreed that time is of the essence.
(b) Acceleration of or Extension of Closing Date. Buyer shall have the
option to accelerate the date of the Closing upon thirty (30) days prior written
notice to the Seller. Buyer shall have the right to extend the Closing Date and
each subsequent extended date of the Closing by written notice to Seller given
at least ten (10) days in advance of the then applicable Closing Date; however,
no such extension may be made which will postpone the Closing Date to a date
subsequent to December 31, 1996. Time is of the essence of this Agreement. Each
such extension notice shall be accompanied by a payment to Seller in the amount
of $5,000 for each thirty (30) day period (or fraction thereof) included within
the extension set forth in such notice. Any and all such extension payments
shall be nonrefundable if the Closing does not occur (except as a result of
Seller's default), but shall be paid by the Escrow Agent to the Seller and
credited in full against the Purchase Price if the Closing does occur. If the
Buyer exercises its rights to extend the Closing as set forth in this Section 3,
any additional costs, up to $2,500, associated with the extension shall be borne
by the Buyer and paid to the Seller at the Closing.
4. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of Seller. Seller warrants and
represents to, and covenants and agrees with, Buyer as of the date hereof (and
on the Closing Date shall reaffirm all such representations, covenants and
warranties as of that date) as follows:
-4-
(i) Seller is a duly organized and validly existing Connecticut
corporation, in good standing under the laws of the State of Connecticut and has
the legal right, power and authority to enter into this Agreement and to perform
all of its obligations hereunder. The execution by the undersigned officer of
Seller and delivery of this Agreement, and the performance by Seller of its
obligations hereunder, have been duly authorized by all necessary action by and
on behalf of Seller and will not conflict with, or result in a breach of, any of
the terms, covenants and provisions of the articles of organization or by-laws
of Seller as any of the same may have been amended, any agreement or instrument
to which Seller is a party or by which it is bound, or, to the best of Seller's
knowledge, any Permit or any Governmental Regulation (as defined below),
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority.
(ii) To the best of the Seller's knowledge, there are no uncured
notices, suits, orders, decrees or judgments relative to violations of, nor to
the best of Seller's knowledge, any other violations of, any easement,
restrictive covenant or other matter of record affecting the Property or any
part thereof, or has the Seller received notice of any violation of any laws,
statutes, ordinances, codes, regulations, rules, orders, or other requirements
of any local, state or federal authority or any other governmental entity or
agency having jurisdiction over the Property or any part thereof, including,
without limitation, any of the foregoing affecting zoning, subdivision,
building, health, traffic, environmental, hazardous waste or flood control
matters (all of the foregoing, collectively, "Governmental Regulations").
(iii) To the best of the Seller's knowledge, the Seller has not
received notice of any other suits, actions or proceedings pending or, to the
best of Seller's knowledge, threatened, against or affecting the Property or any
of the transactions provided for herein before any court or administrative
agency or officer, and Seller has not received notice of any default with
respect to any judgment, order, writ, injunction, rule or regulation of any
court or governmental agency or office to which Seller is subject in any way
affecting the Property or any of the transactions provided for herein.
(iv) Seller is familiar with the provisions of Sections 897 and 1445
of the Internal Revenue Code (the "Code"), and Seller is not a "foreign person"
as that term is defined in Section 1445(f)(3) of the Code.
(v) Except as disclosed on Exhibit 4.1, there are no leases,
subleases, licenses or other rental agreements or occupancy agreements (written
or oral) which grant any possessory interest in and to any space situated on or
in the Property or that otherwise give rights with regard to the use of the
Property or any portion thereof which will not terminate by the date of the
Closing.
As used in this Agreement, the phrase "to the best of Seller's knowledge"
shall mean the actual not constructive or imputed knowledge of the Seller.
-5-
The Buyer is conducting its own due diligence investigation of the Property
and therefore not relying on the foregoing representations and warranties as an
inducement to purchase the Property. In the event that Seller breaches any of
such representations or warranties, the Seller shall only be liable for actual
damages arising out of such breach and not for any reliance damages.
(b) Representations and Warranties of Buyer. Buyer warrants and represents
to, and covenants and agrees with, Seller as of the date hereof (and on the
Closing Date share reaffirm all such representations, covenants and warranties
as of that date) as follows:
(i) Buyer is a duly organized and validly existing Delaware
corporation in good standing under the laws of the State of Delaware and has the
legal right, power and authority to enter into this Agreement and to perform all
of its obligations hereunder, and the execution and delivery of this Agreement.
The execution by the undersigned officer of the Buyer and the delivery of this
Agreement and the performance by Buyer of its obligations hereunder, have been
duly authorized by all necessary action by and on behalf of the Buyer; and will
not conflict with, or result in a breach of, any of the terms, covenants and
provisions of the Articles of Organization or By-Laws of Buyer, as same may have
been amended or, to the best of Buyer's knowledge, or order, judgment, writ,
injunction or decree of any court or any agreement or instrument to which Buyer
is a party or by which it is bound.
(ii) The officer signing this Agreement on behalf of Buyer is duly
authorized to execute the same on behalf of Buyer and Buyer shall provide a
corporate resolution to such effect at the Closing.
(c) Liability for Warranties and Representations. Seller agrees to
indemnify and hold Buyer harmless from and against any and all actual damages,
expenses and fees, including without limitation, reasonable attorneys' fees and
expenses, incurred by Buyer as the result of the failure of any of Seller's
warranties and representations contained in this Article 4 or elsewhere in this
Agreement. Conversely, Buyer agrees to indemnify and hold Seller harmless from
and against any and all claims, losses, liabilities, damages, expenses and fees,
including without limitation, reasonable attorneys' fees and expenses, incurred
by Seller as the result of the failure of any of Buyer's warranties and
representations contained in this Article 4 or elsewhere in this Agreement. The
provisions of this Article 4 shall survive the delivery of the Deed hereunder or
the termination of this Agreement.
5. RIGHTS AND OBLIGATIONS OF THE PARTIES PRIOR TO CLOSING;
CONDITIONS TO CLOSING.
(a) Seller's Covenants. Seller covenants that between the date of this
Agreement and the Closing:
-6-
(i) Upon prior notice to the Seller, Buyer and its representatives,
agents, contractors, architects and engineers, and each of their respective
officers, directors, agents, contractors, employees, representatives, and
designees shall have access to the Property at any time and from time to time,
at Buyer's sole cost and expense: (A) to show the Property to third parties
(including, without limitation, contractors, engineers, architects, attorneys,
insurers, banks and other lenders or investors, and prospective tenants,
occupants or buyers) and (B) to perform any and all tests, borings, inspections,
environmental site assessments and measurements which Buyer reasonably deems
necessary or appropriate hereunder, including without limitation, for purposes
of locating all utility conduits serving the Property, making soil borings,
performing soil compaction tests, performing mechanical or structural
inspections, conducting any of the other tests described in Section 5 (b) below,
and making such surveys and other topographical and engineering studies, and
other tests, surveys and studies as Buyer or Buyer's lender may deem necessary
or appropriate. The Buyer agrees to name the Seller as an additional insured and
to furnish the Seller with a certificate evidencing same endorsed on its general
liability policy with coverage limits at $20,000,000 as the policy relates to
the Property and with mechanics' lien waivers from contractors, engineers or
architects performing work on the Property. Such certificate shall also provide
for notice to the Seller thirty (30) days prior to any cancellation thereof.
Promptly following such tests and surveys, Buyer shall restore any disturbed
Property to substantially the same condition as existed prior to such tests and
surveys. Buyer hereby indemnifies and holds Seller harmless from any cost or
expense suffered or incurred by Seller, including reasonable attorneys' fee,
caused by the entry upon the Property prior to the Closing by Buyer, its agents,
independent contractors, servants and employees, including but not limited to,
any injury to any person arising therefrom, for a period of one (1) year from
the date of the Closing.
(ii) Buyer may discuss the Project and/or the Property with any
federal, county, state or local officials or authorities concerning variances,
permits, certificates, consents, approvals, and other Governmental Regulations
for the use, operation, leasing and/or sale of the Property. The Buyer will hold
in strict confidence all documents, data and information obtained from the
Seller, and if the Closing does not occur, will return the same to the Seller.
(iii) Seller shall not permit any new occupancy of, or enter into any
new lease for, space in or on the Property, or any portion thereof, or enter
into or renew any management, maintenance or other agreement affecting the
Property, or enter into or renew any management, maintenance or other agreement
affecting the Property which will extend through the date of the Closing, unless
Buyer has previously approved such occupancy, lease or agreement in writing.
(iv) Seller shall not withdraw, settle or otherwise compromise, any
protest or reduction proceeding affecting real estate taxes assessed against the
Property for any fiscal period in which the Closing is to occur or any
subsequent fiscal period without the prior written consent of Buyer. The Buyer
may continue any such protest or reduction upon reimbursement to Seller of
Seller's costs paid to third parties in connection therewith.
-7-
Buyer's continuance of any such protest or reduction shall be at the Buyer's
expense. Real estate tax refunds and credits received after the Closing Date
which are attributable to the fiscal tax year during which the Closing Date
occurs shall be apportioned between Seller and Buyer, after deducting the
expenses of collection thereof, which obligation shall survive the Closing.
(v) Seller shall not modify or alter the Property in any material
respect.
(b) Certain Conditions to Buyer's Obligations. In addition to the other
conditions to be satisfied hereunder, Buyer's obligations hereunder are
expressly contingent upon fulfillment of all of the following terms and
conditions:
(i) Within two weeks after the date of the execution of this
Agreement, Buyer shall have obtained a commitment from a title insurance company
selected by Buyer pursuant to which such company agrees to insure title to the
Property, at normal premium rates, in an ALTA form, which commitment shall
delete the printed exceptions for mechanics' and materialmans' liens, parties in
possession and surveys, shall include a so-called Comprehensive Endorsement, and
shall (A) affirmatively insure that there will be no violation of any applicable
restrictions pertaining to the Property if used, operated, leased and/or sold as
contemplated herein, (B) insure that the Property has legal and actual access to
an identified public roadway, (C) take exception for a deed restriction which
shall limit the use of the Property to a nursing home facility, surgery center,
assisted living development, independent living development, continuing care
retirement community development or medical office use related to any of the
foregoing for a five (5) year period commencing on the date of the Closing, (D)
provide the following affirmative coverages:
(1) "This policy affirmatively insures that real estate taxes,
water and sewer use charges and other governmental charges due and payable
through the date of the Policy have been paid.
(2) "This policy affirmatively insures that the easements and/or
rights of way set forth on Schedule B of the policy do not, and the exercise of
any rights thereunder will not, adversely interfere with the use or enjoyment of
all or of any portion of the insured premises, including, without limitation,
the buildings and other improvements as currently constructed thereon.
(3) "This policy affirmatively insures that none of the
restrictions, covenants or conditions set forth in Schedule B have been violated
and no future violation of any of the same will result in (I) a forfeiture or
reversion of title, (II) the forced removal or relocation of any building,
structure or improvement located on the insured premises or (III) the lien of
the mortgage referred to in Schedule A being divested or subordinated or its
validity, priority or enforceability otherwise being impaired."
-8-
(4) Access (reference to specific, publicly dedicated, open and
accepted streets and roadways to which the property has legal and actual access
sufficient for vehicular use).
(5) Same coverage available to future purchasers, lessees and
mortgagees.
(ii) Buyer shall have obtained all zoning, subdivision and
environmental permits and approvals and any other applicable permit, approval,
consent or license as may be necessary for the Intended Use, including without
limitation, approval of the Intended Use by the appropriate boards, and the
relevant appeal periods for all such permits, approvals, licenses and consents
shall have expired without any appeal having been taken.
(iii) Within sixty (60) days after the date of the execution of this
Agreement, Buyer shall conduct such soil borings, analyses, and tests of the
Property as reasonably deemed necessary by the Buyer and shall be satisfied that
the soil are suitable for the development of the Property for the Intended Use
and that the condition of the Improvements is satisfactory.
If the foregoing conditions specified in subsections (i) and (iii) above
are not fully satisfied in a manner which is acceptable to Buyer in its sole
discretion on or before 5:00 p.m. on the respective dates set forth above for
the satisfaction of such condition, Buyer shall have the right to notify Seller
thereof on or before 5:00 p.m. on such respective date, which notice shall
specify which condition(s) (has) (have) not been satisfied, then this Agreement
shall be terminated, and, except as set forth in Section 2.(b)(ii) and in
Section 3.(b), the Deposits, together with all interest thereon, shall be
immediately refunded to Buyer, whereupon all obligations of the parties hereto
shall cease and this Agreement shall be void and without recourse to the parties
hereto other than for matters covered under the indemnification and insurance
provisions set forth in Section 5(a)(i) of this Agreement. In such event, the
Buyer shall provide the Seller with a copy of any environmental site assessment
report (for informational purposes and without warranties or representations of
any kind regarding accuracy).
If the foregoing condition specified in (ii) above is not fully satisfied
in a manner which is acceptable to Buyer in its sole discretion on or before
fifteen (15) days prior to the original or any extended time for Closing, Buyer
shall notify Seller thereof prior to the Closing Date, which notice shall
specify which condition(s) has (have) not been satisfied. In such event, this
Agreement shall be terminated, and, except as set forth in Section 2.(b)(ii) and
in Section 3.(b), the Deposit together with all interest thereon, shall be
immediately refunded to Buyer, whereupon all obligations of the parties hereto
shall cease and this Agreement shall be void and without recourse to the parties
hereto other than for matters covered under the indemnification and insurance
provisions set forth in Section 5(a)(i) of this Agreement.
-9-
6. CLOSING OBLIGATIONS; ESCROW INSTRUCTIONS.
(a) Seller's Closing Obligations. On the Closing Date, Seller shall:
(i) Deliver to Buyer full possession of the Property: (A) in the same
condition as it is as of the date hereof (except that Seller shall have no
responsibility for change to the Property as a result of work performed by the
Buyer, its agents or independent contractors) (B) with any encumbrances
expressly permitted by this Agreement and (C) free and clear of all tenants and
occupants. Buyer shall be entitled to an inspection of the Property prior to the
Closing Date in order to determine whether the condition thereof complies with
the terms of this Section.
(ii) Deliver to Buyer, in form and substance satisfactory to Buyer,
the following:
(A) a Connecticut form warranty deed (the "Deed") (in form
acceptable to Buyer's title insurance carrier, conveying good and clear record
and marketable title to the Land and Improvements insurable as provided in
Section 5(b)(iii) above, which shall convey title free from all liens,
encumbrances and encroachments except: (I) facts as shown on a survey, (II)
provisions of building and zoning laws existing as of the date hereof; (III)
such real property taxes for the then current fiscal tax period as are not yet
due and payable on the Closing Date, provided that if the Land is a portion of a
larger tax parcel, then Buyer shall take title subject only the proportionate
share of such real property taxes as relate to the Land; (IV) such liens for
betterment charges as may be assessed on the Property and due after the Closing
Date; (V) easements, restrictions and rights of way of record, if any, which do
not materially interfere (in Buyer's reasonable discretion) with the
development, use, operation, leasing and/or sale of the Property for the
Intended Use; and (VI) the deed restriction described in paragraph 5.(b)(i)
above.
(B) An Assignment of Seller's entire interest in any permits,
licenses or approvals affecting the Property (provided, however, in the absence
of an express assignment, delivery of the Deed will conclusively be deemed to
constitute the assignment of all of such permits, licenses and approvals to
Buyer);
(C) A receipted xxxx from the local water and sewer authority and
any other entity providing utility service to the Property that all charges for
water and sewer service and such other utilities have been paid through a date
not more than five (5) calendar days prior to the Closing Date.
(D) Affidavits to Buyer's title insurer as to parties in
possession or with a right to possession of, and mechanic's liens (with an
exception for those as a result of work contracted for by Buyer, its agents or
independent contractors) with respect to, the Property, which affidavits shall
be sufficient to have the normal printed exceptions with respect to such matters
deleted from Buyer's and Buyer's lender's title insurance policy(ies).
- 10-
(E) An Affidavit certifying that Seller is not a "foreign person"
as of the Closing Date, as provided in Section 4(a)(xv) hereof.
(F) A certificate by Seller to the effect that all of the
representations and warranties set forth in Section 4 remain true and correct as
of the Closing Date except to the extent the same may have changed in accordance
with the terms and conditions of this Agreement.
(G) A 1099-B form for the Escrow Agent.
(H) A W-9 form stating that no backup withholding is necessary to
disburse Seller's share, if any, of the interest earned on the Deposit.
(I) A secretary's certificate and corporate resolution of Seller,
certifying as to the incumbent officers of Seller and the due authorization and
execution of this Agreement, and of the sale, assignment, instruments, and other
transactions contemplated hereby.
(J) A certificate of good standing for Seller and a copy of
Seller's by-laws and certificate of incorporation certified by the secretary of
Seller.
(K) Such documents, certificates and affidavit reasonably deemed
necessary or appropriate by Buyer's title insurance company to issue its title
insurance policy for the Property.
(L) All other documents expressly required by this Agreement to
be delivered by Seller, including, without limitation, the Drainage Easement.
(iii) To enable Seller to make conveyance as herein provided, at the
time of delivery of the Deed, Seller shall use the Purchase Price or any portion
thereof to clear title to the Property of any or all encumbrances (except for
those created by the Buyer, its agents or independent contractors), and all
instruments so procured shall be recorded simultaneously with the delivery of
the Deed, or provisions reasonably satisfactory to Buyer's attorney shall be
made prior to the Closing Date for recording thereof as soon as reasonably
practicable after the Closing Date.
(b) Buyer's Closing Obligations. At the Closing, Buyer shall:
(i) Deliver to Seller, by wire transfer or certified check, the
balance of the Purchase Price, as adjusted for apportionments under Section 2
above.
(ii) Deliver any other documents expressly required by this Agreement
to be delivered by Buyer.
-11-
(iii) A W-9 form stating that no back-up withholding is necessary to
disburse Buyer's share, if any, of interest earned on the Deposit.
7. FAILURE OR INABILITY TO PERFORM; DEFAULTS; REMEDIES.
(a) Seller's Default. (i) If on the Closing Date, Buyer is not in default
of this Agreement and not through the actions of the Buyer, (A) Seller shall be
unable to give title or make conveyance or deliver possession of the Property as
required by this Agreement or to satisfy any of the terms and conditions
precedent to Closing set forth herein, except for matters caused by the Buyer,
its servants, agents or independent contractors, or (B) the Property does not
then conform to the provisions hereof, or (C) any of Seller's warranties and
representations contained herein are not fully accurate as of the Closing Date
(items (A) through (C), collectively, called "Seller's Obligations"), the time
for performance hereunder shall be extended for such period, not to exceed
ninety (90) days, as shall be reasonably specified by Buyer, and Seller shall
use diligent efforts to satisfy and perform all of Seller's Obligations. If
other than as caused by the actions of the Buyer or its agents, servants or
independent contractors, at the expiration of such extended time for
performance, despite having used such diligent efforts Seller shall remain
unable satisfy and perform all of Seller's Obligations, and such failure
adversely affects the Buyer's title to the Property, the Buyer's intended use of
the Property or the market value of the Property, then Buyer shall have the
option, at Buyer's sole discretion: (I) to terminate this Agreement by notice
given to Seller, whereupon the Deposit, together with all interest and other
sums paid by Buyer hereunder, shall be promptly refunded by Buyer and all
obligations of the parties hereto shall cease and this Agreement shall be void
and without recourse to the parties hereto, excluding, however, those provisions
hereof which are expressly provided herein to survive termination of the
Agreement (including without limitation, Buyer's indemnification of Seller as
set forth in Section 5(a) hereof), or (II) Buyer shall have the election, at the
original or at any extended time for Closing, to accept such title to, and
possession of, the Property as Seller can deliver in its then condition and to
thereupon pay the Purchase Price without any deductions, except such amount
necessary to remove all mortgages, liens or encumbrances which secure the
payment of money (except for those caused by the Buyer, its servants, agents or
independent contractors) and such adjustments computed in accordance with
Section 2(b) above, in which case Seller shall convey such title. In the event
that Seller seeks relief as a debtor under any applicable law, including without
limitation the federal bankruptcy code, or upon the involuntary commencement of
any such proceeding, Buyer shall have the right of possession of the Property
pending the Closing and shall be entitled to any and all rights pursuant to 11
U.S.C. ss.365(i)and (ii). Buyer shall have the right to obtain specific
performance of this Agreement, as well as the benefit of any other rights or
remedies provided herein or by applicable law, in the event of any default
hereunder by Seller (i.e., Seller's failure to perform its obligations hereunder
where such failure is not excused by any of the express terms of this
Agreement).
(b) Buyer's Default. If on the Closing Date, Seller is not in default of
this Agreement and if not through the actions of the Seller, Buyer shall fail to
fulfill its
- 12-
agreements herein Seller's sole and exclusive remedy shall be to retain the
Deposits and any interest thereon as full and complete liquidated damages, both
at law and in equity, whereupon this Agreement shall terminate without further
recourse to either party other than for matters covered under the
indemnification and insurance provisions set forth in Section 5(a)(i) of this
Agreement, which shall, in any event, survive such termination. In addition,
nothing contained herein shall be construed so as to prevent Seller from
negotiating and/or accepting another offer to sell and/or lease all or any part
of the Property to any third party, after Buyer's default under this Agreement.
8. MISCELLANEOUS.
(a) Tax Identification Number. Seller warrants and represents that Seller's
federal tax identification number is 000000000, and Buyer warrants and
represents that Buyer's federal tax identification number is [00-0000000].
Seller and Buyer each acknowledge that the foregoing information will be relied
upon in reporting the transactions contemplated hereby to appropriate
governmental authorities.
(b) Agreement Not an Offer. The submission of any draft of this Agreement
or any portion thereof does not constitute an offer to buy the Property, it
being acknowledged and agreed that neither Buyer nor Seller shall be legally
obligated with respect to the purchase or sale of the Property unless and until
this Agreement has been executed by both Buyer and Seller and a fully executed
copy has been delivered to each of Buyer and Seller.
(c) Exhibits. The Exhibits attached hereto are incorporated herein by this
reference and made a part hereof.
(d) Notices. All notices or communications required or permitted hereunder
shall be in writing and delivered by hand or mailed by certified mall, return
receipt requested, postage and registration or certification charges prepaid, or
by nationally recognized overnight courier service, or by telefax, to the party
entitled thereto as follows:
-13-
If to Seller:
Xxxxxx-Xxxxxxxx Realty Corporation
00 Xxxxxx Xxxxx
Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx, President
and Chief Executive Officer
with a copy to:
Xxxxxx-Xxxxxxxx Industries, Inc.
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
with a courtesy copy to:
Xxxxxxxxx, Krasow & Xxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, XX
Attention: Xxxxxxx Xxxxxx, Esq.
If to Buyer:
CareMatrix Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, III, Esq.
Fax No.: (000) 000-0000
with a courtesy copy to:
Levy & Xxxxxx, P.C.
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
or such other party(ies), address(es) or telefax number(s) as either party shall
specify by written notice to the other from time to time. Any such notice or
communication shall be deemed to have been given as of the date of its receipt
or delivery.
-14-
(e) Broker. (i) Each of Buyer and Seller hereby represents, covenants and
warrants to the other that the party so representing has dealt with no broker or
other person entitled to a commission in connection with the negotiation or
execution of this Agreement or the consummation of the transactions contemplated
hereby, other than Lexington Company with Xxxx Xxxxx, as agent (the "Broker").
Further, each of Buyer and Seller agrees to indemnify and hold harmless the
other from any loss, cost or expense which such non-indemnifying party may incur
as a result of any inaccuracy in the other party's warranties and
representations as set forth in the prior sentence. Except in the case of a
breach of Buyer's warranty set forth above, any and all fees to be paid to the
Broker, or any other broker in connection with Buyer's purchase of the Property
will be paid by Seller.
(ii) Upon delivery and recording of the Deed and other instruments
contemplated herein, in consummation of the transactions contemplated hereby,
Seller shall pay to the Broker a brokerage commission in the amount of $60,000.
In the event that this Agreement is terminated for any reason, no such
commission or compensation of any kind shall be due and payable to the Broker.
The provisions of this Section 8(e) shall survive the delivery of the Deed or
the termination of this Agreement.
(iii) The Broker joins in this Agreement and becomes a party hereto
for the purposes of this Section 8(e) only. The consent of the Broker shall not
be required with respect to any amendments or modifications to this Agreement
other than Amendments or modifications to this Section 8(e).
(f) Entire Agreement; Rules of Construction. This Agreement, executed in
multiple counterparts, is to be construed as a Connecticut contract; sets forth
the entire agreement between the parties; merges all prior and contemporaneous
agreements, understandings, warranties, or representations, including, without
limitation, the letter from Buyer and accepted by Seller, dated December
13,1995; shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; and may be canceled, modified or
amended only by a written instrument executed by both Seller and Buyer. The
captions and section headings are used only as a matter of convenience and are
not to be considered a part of this Agreement or to be used in determining the
intent of the parties.
(g) Further Assurances. Upon Buyer's request, Seller agrees to execute and
deliver to Buyer such additional instruments, certificates and documents as
Buyer may reasonably require, whether or not after the Closing Date, in order to
provide Buyer with the rights and benefits to which Buyer is entitled under this
Agreement.
(h) Notice of Agreement. Buyer shall have the right to record and Seller
agrees to execute and acknowledge a Notice of Contract.
(i) Deed Restriction. The Buyer shall agree to a deed restriction which
shall limit the use of the Property to a nursing home facility, surgery center,
assisted living
-15-
development, independent living development, continuing care retirement
development and for medical office uses related to any of the foregoing for a
five (5) year period commencing on the date of the Closing.
(j) Diligent Efforts Concerning Approvals. The Buyer agrees to diligently
pursue obtaining all necessary zoning, subdivision and environmental permits and
approvals and any other applicable permit or approval as may be necessary for
the development of the Property for its Intended Use.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused it
to be executed by their respective duly authorized representatives, as an
instrument under seal as of the day and year first above written.
WITNESSES: BUYER:
CAREMATRIX CORPORATION
/s/ [Illegible] By: /s/ Xxxxxxx Xxxxxx
---------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxx
/s/ [Illegible] Title: Ex Vice President
---------------------------------- hereunto duly authorized
SELLER:
XXXXXX-XXXXXXXX REALTY
CORPORATION
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. [Illegible] Title: VP & Controller
---------------------------------- hereunto duly authorized
ESCROW AGENT:
XXXXXXXXX, KRASOW & XXXX
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. [Illegible] Title: VP
---------------------------------- hereunto duly authorized
-00-
XXXXX XX XXXXXXXXXXXXX )
) ss:
COUNTY OF NORFOLK )
Personally appeared, Xxxxxxx Xxxxxx, the ex vice pres., of CareMatrix
Corporation, a Delaware corporation, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed and the duly
authorized free act and deed of the corporation.
/s/ Xxxxx A Blamhard
----------------------------------
My Commission Expires: 6/30/2000
Notary Public
STATE OF CONNECTICUT )
) ss: AVON
COUNTY OF HARTFORD )
Personally appeared, XXXXXX X. XXXXXXXX, the Vice President and Controller
of Xxxxxx-Xxxxxxxx Realty Corporation, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed and the duly
authorized free act and deed of the corporation.
/s/ Xxxxxxx X Xxxxxx
----------------------------------
Commissioner of the Superior Court
-18-
Exhibits
Exhibit 1.1 Legal Description of the Land
Exhibit 4.1 Schedule of Contracts
- 19-
EXHIBIT 1.1
All that certain parcel of land with the buildings and improvements thereon,
situated on the northerly street line of West Main Street (Route 44) in the Town
of Avon, County of Hartford and State of Connecticut, shown as "PARCEL 2A AREA =
6.568 acres" on a map entitled: "MAP OF LAND TO BE CONVEYED TO CAREMATRIX XXXX
XXXX XXXXXX & XXXXXXXX XXXXX EXTENSION AVON, CONNECTICUT SCALE 1" = 40' JUNE
1996 REVISED: JUNE 1, 1996 XXXXX SURVEYING ASSOCIATES, P.C.", which map is on
file or to be filed in the Avon Town Clerk's Office, and being more particularly
bounded and described as follows:
COMMENCING at a point on the northerly street line of West Main Street
(Route 44), which point marks the south-westerly corner of
land now or formerly of Alpha Realty, Inc. and the
southeasterly corner of the land herein described;
THENCE running along the northerly street line of West Main Street,
the following courses and distances:
N 62(degrees) 15' 26" W, a distance of 4.59 feet, to a
point;
N 68(degrees) 59' 06" W, a distance of 22.62 feet, to a
point;
N 68(degrees) 59' 06" W, a distance of 38.07 feet, to a
point;
N 57(degrees) 17' 16" W, a distance of 62.42 feet, to a
point;
N 57(degrees) 17' 16" W, a distance of 8.17 feet, to a
point;
along the arc of a curve having a radius of 2924.93 feet, a
distance of 36.68 feet, to a point;
along the arc of a curve having a radius of 2924.93 feet, a
distance of 20.00 feet, to a point;
along the arc of a curve having a radius of 2924.93 feet, a
distance of 218.31 feet, to a point;
N 69 04' 26" W, a distance of 276.32 feet, to a point;
N 69(degrees) 04' 26" W, a distance of 10.10 feet, to a
point;
N 69(degrees) 04' 26" W, a distance of 10.10 feet, to a
point;
N 69(degrees) 04' 26" W, a distance of 21.67 feet, to a
point marking the southeasterly corner of Xxx Xx. 0 Xxxx
Xxxxxxx Xxxxxxx X.X. Partnership and the southwesterly
corner of the land herein described;
THENCE running along Xxx Xx. 0 Xxxx Xxxxxxx Xxxxxxx X.X.
Partnership the following courses and distances:
N 16(degrees) 37' 20" E, a distance of 98.65 feet, to a
point;
N l6(degrees) 37' 20" E, a distance of 20.20 feet, to a
point;
N 13(degrees) 02' 44" W, a distance of 72.83 feet, to a
point;
N l6(degrees) 52' 07" E, a distance of 20.05 feet, to a
point;
N l6(degrees) 52' 07" E, a distance of 48.77 feet, to a
point;
N 46(degrees) 50' 51" E, a distance of 32.00 feet, to a
point;
N 46(degrees) 50' 51" E, a distance of 25.00 feet, to a
point;
N 46(degrees) 50' 51" E, a distance of 162.45 feet, to a
point;
S 56(degrees) 10' 58" E, a distance of 11.00 feet, to a
point;
S 56(degrees) 10' 58" E, a distance of 64.00 feet, to a
point;
S 56(degrees) 10' 58" E, a distance of 6.18 feet, to a
point;
S 56(degrees) 10' 58" E, a distance of 31.23 feet, to a
point on the westerly street line of Xxxxxxxx Drive
Extension;
THENCE running along Xxxxxxxx Drive Extension the following courses
and distances:
along the arc of a curve having a radius of 60.00 feet, a
distance of 46.68 feet, to a point;
along the arc of a curve having a radius of 60.00 feet, a
distance of 132.26 feet, to a point;
along the arc of a curve having a radius of 40.83 feet, a
distance of 48.11 feet, to a point;
along the arc of a curve having a radius of 604.34 feet, a
distance of 216.03 feet, to a point marking the
northwesterly corner of Parcel 2B and the northeasterly
corner of the land herein described;
THENCE running along Parcel 2B as shown on said map, the following
courses and distances:
S 18(degrees) 42' 42" E, a distance of 52.25 feet, to a
point;
S l8(degrees) 42' 42" E, a distance of 32.73 feet, to a
point;
S l8(degrees) 42' 42" E, a distance of 146.91 feet, to a
point,
S 18(degrees) 42' 42" E, a distance of 53.13 feet, to a
point;
S l8(degrees) 42' 42" E, a distance of 126.57 feet, to a
point;
THENCE S 14(degrees) 51' 50" W, along land now or formerly of Alpha
Realty, Inc., a distance of 121.83 feet, to a point on the
northerly street line of West Main Street, being the point
of beginning.
Together with the right to drain in favor of Parcel 2A into land of
Xxxxxx-Xxxxxxxx Realty Corporation on the opposite side of Route 44 to Stub Pond
as shown on the aforementioned map.
Exhibit 4.1
Schedule of Contracts
NONE
-21-
EXHIBIT 1.l(a)
Map
