ASSIGNMENT AGREEMENT
(Southington, Connecticut)
THIS ASSIGNMENT AGREEMENT made this 3rd day of July, 1996, by and between
CarePlex of Southington, Inc., a Delaware corporation ("Assignor"), and
Chancellor of Massachusetts, Inc., a Delaware corporation ("Assignee").
WITNESSETH
WHEREAS, Assignor is the general partner of The Cragganmore Associates
Limited Partnership (the "Partnership") pursuant to The Cragganmore Associates
Limited Partnership Agreement (the "Partnership Agreement"), dated November 1,
1995, relating to a certain parcel of land located in Southington, Connecticut
(the "Land"), a copy of which is attached hereto as Exhibit A;
WHEREAS, the Partnership intends to develop the Land for an
assisted/independent living facility consisting of approximately ninety-six
(96) units (the "Project");
WHEREAS, Assignor desires to assign its rights and obligations under the
Partnership Agreement to Assignee, and Assignee desires to assume such rights
and obligations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Assignor hereby assigns, sets over and transfers unto Assignee to have
and to hold from and after the date hereof, all of the right, title
and interest of Assignor in, to and under the Partnership Agreement,
and Assignee hereby accepts the within assignment and assumes and
agrees with Assignor, to perform and comply with and to be bound by
all of the terms, covenants, agreements, provisions and conditions of
the Partnership Agreement on the part of Assignor thereunder to be
performed on and after the date hereof, in the same manner and with
the same force and effect as if Assignee had originally executed the
Partnership Agreement.
2. Assignor agrees to indemnify and hold harmless Assignee from and
against any and all Claims (as defined in paragraph 4 hereof) accruing
or arising under the Partnership Agreement on or before the date
hereof.
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3. Assignee agrees to indemnify and hold harmless Assignor from and
against any and all Claims accruing or arising under the Partnership
Agreement after the date hereof.
4. For the purposes of this Agreement, the term "Claims" means all costs,
claims, obligations, damages, penalties, causes of action, losses,
injuries, liabilities and expenses (including, without limitation,
reasonable legal fees and expenses).
5. This Agreement (i) shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, (ii)
shall be governed by the laws of the Commonwealth of Massachusetts,
and (iii) may not be modified orally, but only by a writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
ASSIGNOR:
CAREPLEX OF
SOUTHINGTON, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title:
ASSIGNEE:
CHANCELLOR OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title:
Exhibit A
THE CRAGGANMORE ASSOCIATES
LIMITED PARTNERSHIP AGREEMENT
TABLE OF CONTENTS
ARTICLE I - Definitions and Parties
Section 1.1 - Definitions
Section 1.2 - Act
Section 1.3 - Agreement
Section 1.4 - Capital Account
Section 1.5 - Capital Contribution
Section 1.6 - Cash Flow
Section 1.7 - Closing
Section 1.8 - General Partner
Section 1.9 - Income and Loss
Section 1.10 - Internal Revenue Code
Section 1.11 - IRS
Section 1.12 - Limited Partner
Section 1.13 - Notice
Section 1.14 - Offeree
Section 1.15 - Offeror
Section 1.16 - Partner Loans
Section 1.17 - Partners
Section 1.18 - Partnership
Section 1.19 - Partnership Property
Section 1.20 - Premises
Section 1.21 - Prime Rate
Section 1.22 - Project
Section 1.23 - Tax Matters Partner
Section 1.24 - Term
Section 1.25 - Unrecovered Capital Contribution
ARTICLE II - Formation
Section 2.1 - Formation
Section 2.2 - Name
Section 2.3 - Office and Agent for Service
Section 2.4 - Documents to Be Filed
ARTICLE III - Purpose
ARTICLE IV - Term
ARTICLE V - Partnership Capital
Section 5.1 - Capital
Section 5.2 - Interest on Capital Contributions
Section 5.3 - Non-Assessability
Section 5.4 - Return of Capital
Section 5.5 - Partner Loans
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ARTICLE VI - Allocations of Income and Loss and Distributions
Section 6.1 - Definition of Income and Loss
Section 6.2 - Allocation of Income and Loss
Section 6.3 - Distributions of Cash from Operations
Section 6.4 - Distributions of Cash from Capital
Transactions
ARTICLE VII - Tax Matters Partner
Section 7.1 - Tax Matters Partner
Section 7.2 - Duties and Power of Tax Matters Partner
ARTICLE VIII - Rights, Obligations and Representations of the General Partner
Section 8.1 - Daily Control of Partnership
Section 8.2 - Specific Powers and Duties of General
Partner
Section 8.3 - Actions Requiring Approval of the
Limited Partner
Section 8.4 - Other Activities
ARTICLE IX - Specifically Authorized Agreements
Section 9.1 - Guarantee Fee
Section 9.2 - Management Agreement
Section 9.3 - Consulting Services
Section 9.4 - Turnkey Construction Contract
Section 9.5 - Funding Requirements
Section 9.6 - Assignment of Rights
Section 9.7 - No Additional Fees
Section 9.8 - Reduction of Property Acquisition Costs
ARTICLE X - Rights and Obligations of Limited Partner
Section 10.1 - Authority of Limited Partner
Section 10.2 - Rights of Limited Partner
Section 10.3 - Assignment by Limited Partner and
General Partner
ARTICLE XI - Distribution on Dissolution; Rights of First Refusal
Section 11.1 - Priority of Distribution
Section 11.2 - Period of Dissolution
Section 11.3 - Statement
Section 11.4 - Liability for Capital Contributions
Section 11.5 - Rights of First Refusal
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ARTICLE XII - Power of Attorney
Section 12.1 - Power of Attorney
Section 12.2 - Assignment
Section 12.3 - Admission of Limited Partner
Section 12.4 - Irrevocable
Section 12.5 - Amendments by General Partner
ARTICLE XIII - Indemnification
Section 13.1 - Indemnification of General Partner
Section 13.2 - Indemnification of Partnership
ARTICLE XIV - Concluding Provisions
Section 14.1 - Entire Agreement
Section 14.2 - Amendments
Section 14.3 - Successors
Section 14.4 - Joint Effort
Section 14.5 - Captions
Section 14.6 - Notice
Section 14.7 - Effective Date of Notice
Section 14.8 - Counterparts
Section 14.9 - Partial Invalidity
Section 14.10 - Applicable Law
Section 14.11 - Exhibits
Section 14.12 - Confidentiality
Section 14.13 - No Offer/No Waiver
Section 14.14 - Genders
Section 14.15 - Initialling
Section 14.16 - Further Assurances
Section 14.17 - Effective Date
EXHIBITS
Exhibit A - List of Contracts to be Assumed
Exhibit B - Reimbursement Expenses
Exhibit C - Turnkey Contract
Exhibit D - Management Agreement
Exhibit E - Budget
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THE CRAGGANMORE ASSOCIATES
LIMITED PARTNERSHIP AGREEMENT
ARTICLE I
Definitions and Parties
Section 1.1 - Definitions. The words, phrases and parties defined in this
Article shall have the meanings indicated. Whenever the words, phrases and
parties defined in this Article, or elsewhere in this Agreement, are intended to
have their defined meanings, the first letter of the word or the first letters
of all substantive words in the phrase shall be capitalized. Otherwise, any
word, phrase or party name that appears in this Agreement shall have the meaning
denoted by its context.
Section 1.2 - Act. Act shall mean the Connecticut Uniform Limited
Partnership Act as the same may be, from time to time, amended.
Section 1.3 - Agreement. Agreement shall mean this document, which is the
Limited Partnership Agreement of The Cragganmore Associates Limited Partnership.
Section 1.4 - Capita1 Account. Capital Account of a Partner shall mean the
capital account of that Partner determined from the inception of the Partnership
strictly in accordance with the rules set forth in Section l.704-l(b)(2)(iv) of
the Treasury Regulations.
Subject to the previous paragraph, Capital Account means:
(a) The sum of:
(i) the Partner's Capital Contribution, plus
(ii) the fair market value of property contributed by the Partner to
the Partnership (net of liabilities secured by the property or to
which the property is subject), plus
(iii) the amount of net profits and gain from capital transactions
allocated to the Partner; and
(b) Decreased by the sum of:
(i) the amount of money distributed to the Partner; plus
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(ii) the fair market value of property distributed to the Partner by
the Partnership (net of liabilities secured by the property or to
which the property is subject); plus
(iii) the Partner's share of expenditures of the Partnership described
in Section 705(a)(2)(B) of the Code (including, for this purpose,
losses which are nondeductible under Section 267(a)(l) or Section
707(b) of the Code); plus
(iv) the Partner's share of amounts paid or incurred by the
Partnership to organize the partnership or to promote the sale of
(or to sell) an interest in the Partnership (except to the extent
properly amortizable for tax purposes or which otherwise may be
permitted by law or Treasury Regulation or IRS ruling), plus
(v) the amount of net losses and loss from capital transactions
allocated to the Partner.
For this purpose, "income" refers to all items of income (including all
items of gain and including income exempt from tax) as properly determined for
"book" purposes, and "loss" refers to all items of loss (including deductions)
as properly determined for "book" purposes. "Book" income and loss shall be
determined based on the value of the Partnership's assets as set forth in the
books of the partnership in accordance with the principles of Section
l.704-l(b)(2)(iv)(g) of the Treasury Regulations. Otherwise, income and loss
shall be determined strictly in accordance with federal income tax principles
(including rules governing depreciation and amortization), applied
hypothetically based on values of partnership assets as set forth on the
Partnership books.
An assumption of a Partner's unsecured liabilities by the partnership shall
be treated as a distribution of money to the Partner. An individual assumption
of the partnership's unsecured liabilities by a Partner shall be treated as a
cash contribution by the Partner to the partnership. For this purpose, the
assumption of a secured liability in excess of the fair market value of the
security shall be treated as the assumption of any unsecured liability to the
extent of that excess.
In the event that assets of the partnership other than cash are distributed
to a Partner in kind, Capital Accounts shall be adjusted for the hypothetical
"book" gain or loss that would have been realized by the Partnership if the
distributed assets had been sold for their fair market values in a cash sale (in
order to reflect unrealized gain or loss).
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In the event of the liquidation of a Partner's interest in the partnership
or of the Partnership, Capital Accounts shall be adjusted for the hypothetical
"book" gain or loss that would have been realized by the Partnership if all
Partnership assets had been sold for their fair market values in a cash sale (in
order to reflect unrealized gain or loss).
Capital Accounts also shall be adjusted upon the constructive termination
of the partnership as provided under Section 708 of the Code in accordance with
the method set forth in the immediately preceding paragraph (as required by
Section l.704-l(b)(2)(iv)(l) of the Treasury Regulations).
In the event that a Partner shall be both a General Partner and a Limited
Partner of the Partnership, a single Capital Account shall be maintained for
that Partner.
Section 1.5 - Capital Contribution. Capital Contribution shall mean all
cash or other property contributed to the partnership by a Partner, excluding
any loans made by such partner to the Partnership.
Section 1.6 - Cash Flow. Cash Flow shall mean, with respect to any period,
the amount (if any) by which the cash received from all sources other than:
(i) Capital Contributions (except the amount of any reserve originating
from a Capital Contribution which is used to pay an Operating Cost);
and
(ii) capital transaction;
exceeds Partnership expenses.
a) In determining Cash Flow for any year, there shall be added (1)
depreciation, amortization of prepaid items and deferred costs
and other non-cash charges, (2) payments to the partnership out
of the proceeds of business of rental interruption insurance, (3)
amounts accrued for such year by the partnership and expensed or
deducted for such year in calculating partnership profits and
losses, but payable only from Cash Flow for such year pursuant to
this Agreement and (4) funds released from any escrow account
other than for payments of capital expenditures.
b) In determining Cash Flow for any year, there shall be subtracted
(1) principal payments on partnership indebtedness, (2) payments
to reserve accounts required by any Lender or
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pursuant to Section 6.3, (3) other reasonable payments to the
Partnership reserve accounts determined by the General Partners,
(4) payments for capital expenditures, unless withdrawn from
partnership reserve accounts, and (5) fees and other cash
expenditures permitted by this Agreement to the extent actually
paid by the Partnership in such year to the extent not expensed
or deducted for such year in calculating Partnership profits and
losses (except far any such payments of items referred to in this
clause (b) made out of (x) Capital Contributions, proceeds of a
Capital Transaction or other sources not included in determining
such profits and losses, or (y) Cash Flaw); and
c) Gain or losses from any sale, exchange, eminent domain taking,
damage or destruction by fire or other casualty (whether or not
insured) or other disposition of all or any part of the Property
(other than the proceeds of any business or rental interruption
insurance), Capital Contributions to the partnership and the
proceeds of any mortgage and loan or refinancing proceeds shall
not be included in such profits and losses in determining Cash
Flow.
(iii) Cash Flow shall be determined separately for each fiscal year and
shall not be cumulative.
Section 1.7 - Closing. Closing shall mean the date on which the Certificate
of Limited partnership is filed with the Office of the Secretary of the State of
Connecticut forming the partnership and admitting the Partners.
Section 1.8 - General Partner. The General Partner of the Partnership shall
be Continuum Care of Southington, Inc., a Delaware corporation.
Section 1.9 - Income and Loss. See Section 6.1.
Section 1.10 - Internal Revenue Code. Internal Revenue Code shall mean the
Internal Revenue Code of 1986, as amended and any successor act.
Section 1.11 - IRS. See Section 7.2.
Section 1.12 - Limited Partner. Limited Partner shall mean Xxxxxx X.
Xxxxxx.
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Section 1.13 - Management Agreement. See Section 9.2.
Section 1.14 - Notice. See Section 14.6.
Section 1.15 - Offeree. See Section 11.5(c).
Section 1.16 - Offeror. See Section 11.5(c).
Section 1.17 - Partner Loans. See Section 5.5.
Section 1.18 - Partners. Partners shall mean the General Partner and the
Limited Partner.
Section 1.19 - Partnership. Partnership shall mean The Cragganmore
Associates Limited Partnership.
Section 1.20 - Partnership Property. Partnership Property shall mean the
Project and all other assets transferred to, and held by, the Partnership.
Section 1.21 - Premises. Premises shall mean the real property upon which
the Project is located.
Section 1.22 - Prime Rate. Prime Rate shall mean an interest rate equal to
the annual interest rate announced, from time to time, by Fleet Bank, N.A. of
Providence, Rhode Island as its prime rate.
Section 1.23 - Project. Project shall mean an assisted living facility to
be located in Southington, Connecticut to be comprised of between 84 units (92
beds) and 96 units (104) beds.
Section 1.24 - Tax Matters Partner. See Section 7.1.
Section 1.25 - Term. See Section 4.1.
Section 1.26 - Unrecovered Capita1 Contribution. Unrecovered Capital
Contribution shall mean all Capital Contributions made by a Partner less any
distributions of cash to the Partner from the partnership except the preferred
return payable under Section 6.3(d).
ARTICLE II
Formation
Section 2.1 - Formation. The parties hereby form a Connecticut Limited
partnership pursuant to the provisions of the Act upon the terms and conditions
set forth in this Agreement.
Section 2.2 - Name. The partnership shall be conducted under the name of
The Cragganmore Associates Limited partnership.
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Section 2.3 - Office and Agent for Service. The principal office of the
Partnership shall be located at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
or such place or places as the General Partner may, from time to time, designate
after notice to the Limited Partner. The agent of the Partnership for service of
process in Connecticut shall be Levy & Xxxxxx, P.C., 00 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000, or such successor as may, from time to time, be
designated by the General Partner.
Section 2.4 - Documents to Be Filed. In addition to this Agreement, the
Partners, or the General Partner as attorney-in-fact acting for one or more of
the Partners, shall sign and file as required:
(a) A Certificate of Limited Partnership meeting the requirements of the
Act, which shall be filed for record in the Office of the Secretary
of the State of Connecticut. The General Partner shall mail a copy of
the Certificate of Limited Partnership to the Limited Partner when
received from the State of Connecticut.
(b) All other certificates and applications required to be filed in
Connecticut or in any other state or by the federal government.
ARTICLE III
Purpose
Section 3.1 - General. The purpose of the Partnership shall be to
construct, develop, lease, finance, expand, operate, manage, sell, transfer or
otherwise dispose of the Project.
ARTICLE IV
Term
The Partnership shall continue until December 31, 2045 ("Term"), provided,
however, that the Partnership shall be sooner dissolved, and the Term thereby
shortened, upon the happening of any of the following events:
(a) A final disposition by the Partnership of its entire interest in the
Project, and all other Partnership Property, except that, upon the
happening of such event, the General Partner can extend, for a
reasonable period not to exceed five (5) years, the Term upon notice
to the Limited Partner.
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(b) The bankruptcy, insolvency, death, incompetency, dissolution,
withdrawal or other event, which, under the Act, would result in the
dissolution of the Partnership by, of, or to any General Partner
("Event") except that the Partnership shall not be dissolved if
either:
(i) a remaining General Partner continues the business of the
Partnership; or
(ii) within ninety (90) days following such Event, all Partners
unanimously agree in writing to continue the business of the
Partnership and to the appointment of one or more successor
General Partners.
(c) A decision by the General Partner in the event the Partnership should
be classified as an association for federal income tax purposes.
(d) The failure of the Partnership to acquire the Project by April 30,
1996.
ARTICLE V
Partnership Capital
Section 5.1 - Capital. The capital of the Partnership shall be contributed
and adjusted as follows:
(a) The General Partner shall contribute on the date of the Closing, the
cash described below together with the obligations, commitments, and
undertakings incurred by the General Partner under all agreements
related to the Project on or before this date, in exchange for the
percentage interest indicated:
Percentage
Cash Interest
---- --------
$ 80 80%
In addition, the General Partner shall contribute up to ten percent
(10%) of the amount of the contract price payable under the Turnkey
Contract, which together with the proceeds of certain anticipated
financing, shall be used to pay such Contract Price.
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(b) The Limited Partner shall contribute on the date of the Closing the
cash described below, in exchange for the percentage interests
indicated.
Percentage
Cash Interest
---- --------
$ 20 20%
(c) The Capital Account of each Partner shall be established and adjusted
in accordance with the definition of Capital Account as set forth in
Section 1.4 and otherwise so as to comply with the requirements of
Internal Revenue Code Sections 704(b) and 704(c) and the Treasury
Regulations promulgated thereunder.
Section 5.2 - Interest on Capital Contributions. No Partner shall be
entitled to interest on funds contributed to the capital of the Partnership.
Partners may, however, be entitled to interest on loans made to the Partnership.
Section 5.3 - Non-Assessability. No Limited Partner shall be obligated to
make any additional contributions to the Partnership except as expressly set
forth in this Agreement. The liability of each Limited Partner to the
Partnership and to the third party creditors of the Partnership shall be limited
to the amount of its capital contribution and the share of undistributed profits
of the Partnership attributed to it and to distributions received by it in
accordance with Connecticut law. No Partner shall be required to restore a
negative balance or deficit in its Capital Account.
Section 5.4 - Return of Capital. No Partner shall be entitled to the return
of funds contributed to the capital of the Partnership or any part of such
funds, except as expressly set forth in this Agreement.
Section 5.5 - Partner Loans. The General Partner shall loan to the
Partnership funds required for the start-up costs of the Project, including
without limitation marketing and operating costs during the fill-up of the
Project to the extent that such costs are not capitalized and included within
the permanent financing for the Project, as such funds are necessary. The
General Partner may, in its sole discretion, structure any such required funding
as a mortgage loan to the Partnership, provided that the Partnership's permanent
lender permits such a junior lien. Such loan shall be amortized over a five (5)
year period commencing upon ninety percent (90%) occupancy of the Project, with
mandatory prepayments to be made thereunder to the extent of available Cash
Flow. Such loan shall bear interest at a rate equal to Prime Rate plus two
percent (2%) per annum.
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ARTICLE VI
Allocations of Income and Logs and Distributions
Section 6.1 - Definition of Income and Loss. Income and Loss shall be
defined to mean the income or losses of the Partnership from the construction,
operation and management of the business of the Partnership and the lease, sale,
condemnation, casualty loss or other disposition of all or any part of the
Partnership Property, all as determined by generally accepted accounting
practices for federal income tax purposes.
Section 6.2 - Allocation of Income and Loss. Income and Loss shall be
credited or charged to the Capital Accounts of the Partners, in the same
proportion as distributions of Cash Flow or Cash from Capital Transactions are
made to the Partners in accordance with this Agreement.
Section 6.3 - Distributions of Cash from Operations. Subject to the
requirements and covenants of any lender to the Partnership or Project and the
maintaining of a reserve for expenses which the General Partner deems reasonably
necessary to satisfy anticipated obligations, contingent liabilities and capital
reserves, the Cash Flow of the Partnership from the operation of the Project
shall be distributed at such times as deemed appropriate by the General Partner,
but not more than semi-annually, in the following order of priority:
(a) Payment of all operating expenses of the Partnership and the Project
(on a customary and reasonable basis) including, without limitation,
the management fee under the terms of the Management Agreement;
(b) Payment of debt service on construction loan for the Project or
permanent loan for the Project; or
(c) Payment of debt service on any working capital loan for the Project.
(including, without limitation, any loans to the General Partner in
accordance with Section 5.5 hereof) any guarantee fees, and/or subordinated
loans from any lender, including, without limitation, the General Partner
or its affiliates;
(d) Payment of a non-compounding accumulated preferred return on any
Unrecovered Capital Contributions, compensating balances or cash
collateral accounts made or funded by the General Partner, as the case
may be, equal to 15% per annum, less the amount of any interest
received by the General Partner on such compensating balances or cash
collateral accounts;
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(e) Thereafter, to the Partners in accordance with the percentage
interests set forth in Section 5.1 as such percentages may change from
time to time in accordance with the terms of this Agreement.
Section 6.4 - Distributions of Cash from Capital Transactions. Cash from a
sale, condemnation, casualty loss, settlement of claim, financing, refinancing
or termination and liquidation of the Partnership or any disposition of the
Partnership Property or any part of or interest in the Partnership Property,
which, in accordance with generally accepted accounting principles, is
attributed to capital (as distinguished from the normal business operations of
the Partnership) shall be distributed between the Partners in accordance with
the following order of priority:
(a) first, to liabilities secured by the Project;
(b) second, to pay the outstanding indebtedness of the Partnership;
(c) thereafter, 20% to the Limited Partner and 80% to the General Partner.
ARTICLE VII
Tax Matters Partner
Section 7.1 - Tax Matters Partner. The Partnership hereby designates the
General Partner to act as the Tax Matters Partner in accordance with Internal
Revenue Code Section 6231, as the same may be, from time to time, amended. In
the event that it ceases, for any reason, to be a General Partner, or if the
General Partner shall resign as Tax Matters Partner, the Partners shall, by a
Majority, elect a Successor Tax Matters Partner.
Section 7.2 - Duties and Power of Tax Matters Partner. The Tax Matters
Partner shall have the following authority and powers, to exercise at its sole
discretion:
(a) provide the Internal Revenue Service ("IRS") with the name, address,
profits interest and taxpayer identification number of each person who
was a Partner in the partnership at any time during a taxable year if
the IRS mails notice to the partnership of the beginning of an
administrative proceeding at the Partnership level; and
(b) to the extent and in the manner required by Treasury Regulations, keep
each Partner informed of all administrative and judicial proceedings
for the
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adjustment at the Partnership level of Partnership items; and
(c) have the power to enter into agreements with the Secretary of the
Treasury to extend the period for assessing any tax attributable to
any Partnership item; and
(d) have the power to handle day-to-day audit negotiations with the IRS;
(e) retain such accountants, attorneys or other advisors on behalf of the
Partnership as it may deem necessary or advisable in connection with
any administrative or judicial proceedings; and
(f) comply with any duly issued summonses to produce records, provided
that the General Partner shall have the right to contest the validity
of enforceability thereof; and
(g) forward to all Partners entitled to receive the same, within sixty
(60) days of receipt, any Final Partnership Administrative Adjustment
received from the IRS; and
(h) have the power to commence litigation in the Tax Court, Court of
Claims or District Court; and
(i) have the power to intervene in any litigation commenced by a Partner
contesting a Final Partnership Administrative Adjustment; and
(j) perform such other duties as are reasonably required of it and
exercise such other rights as are delegated to it under the Internal
Revenue Code of 1954 and the Regulations issued pursuant thereto as
such may be, from time to time, amended.
ARTICLE VIII
Rights, Obligations and
Representations of the General Partner
Section 8.1 - Daily Control of Partnership. The General Partner shall have
full and complete discretion in the day-to-day management and control of the
affairs of the Partnership to carry out the purposes of the Partnership. The
General Partner shall have the right to delegate to any affiliate, employee, or
to its accountants or attorneys any and all of its duties and obligations under
this Agreement other than the duties set forth in Section 5.5 or Article IX. In
the event that the General
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Partner enters into contracts or otherwise purchases goods and services on
behalf of the Partnership from any Partner or any of its affiliates pursuant to
which the Partnership will be obligated to make payments to such Partner or to
any such affiliate, then, in such event, the payments by the Partnership under
such contracts and purchases shall be on terms no less favorable to the
Partnership than would have been negotiated at arm's length with unaffiliated
third parties.
Section 8.2 - Specific Powers and Duties of General Partner. In addition to
any other duties set forth in this Agreement and without limiting the foregoing,
the General Partner shall specifically have the authority and the power (subject
to any express limitations set forth in this Agreement), at its discretion to:
(a) maintain complete and accurate books of account for the Partnership;
and
(b) within one hundred twenty (120) days after the end of each fiscal
year, provide each Limited Partner with an unaudited financial report
on the Partnership, reviewed by the Partnership's accountant including
a balance sheet and financial statement; and
(c) within ninety (90) days after the end of each fiscal year, furnish a
report to each Limited Partner containing such information as the
General Partner deems necessary for the proper preparation of the
Limited Partner's Federal Income Tax Returns; and
(d) employ such developers, contractors, consultants, accountants,
attorneys and other such agents for services, other than for
management services pursuant to the Management Agreement, as the
General Partner may, in its sole discretion, determine to be in the
best interests of the Partnership, including the employment of
entities which are affiliates of the General Partner; and
(e) mortgage, pledge, encumber, sell, exchange or otherwise dispose of any
or all of the partnership Property; and
(f) consent to the Assignment of a Limited Partner's interest; and
(g) admit Limited Partners as a result of the transfer of limited partner
and/or general partner interests made in accordance with this
Agreement; and
(h) borrow money or refinance the Project; and
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(i) incur indebtedness in the ordinary course of the Partnership's
business; and
(j) make various elections for federal income tax reporting purposes,
including elections under Section 754 of the Internal Revenue Code;
and
(k) construct, alter, improve, repair, raze, replace, enlarge or rebuild
all or any portion of the Project; and
(1) execute, knowledge and deliver and all documents that the General
Partner may deem necessary or desirable for Partnership purposes; and
(m) perform or cause to be performed all of the Partnership's obligations
and exercise all of its rights under any agreement to which the
Partnership is a party; and
(n) open Partnership bank accounts and sign checks on such accounts; and
(o) perform all acts contemplated by or incidental to the purposes of the
Partnership.
Section 8.3 - Actions Requiring Approval of Limited Partner.
Notwithstanding anything to the contrary set forth elsewhere in this Agreement,
the following actions of the Partnership shall require approval or ratification
by the Limited Partner:
(a) changing the nature of the Partnership business; or
(b) approving an amendment, other than an amendment in accordance with
Section 12.5, to this Agreement;
(c) replacing the General Partner with an entity which is unrelated or
unaffiliated with the General Partner;
(d) dissolution and liquidation of the Partnership; or
(e) the sale, lease, transfer, assignment or mortgaging of all or
substantially all of the Partnership Property.
All other actions shall be within the sole and absolute discretion of the
General Partner.
Section 8.4 - Other Activities. The General Partner shall devote such time
to the Partnership's business as shall be reasonably required. The Limited
Partner acknowledges that the General Partner may be engaged in similar business
ventures
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exclusively for its own account and neither the Limited Partners nor the
Partnership shall have any rights whatsoever in such other business ventures.
Notwithstanding the foregoing no Partner shall engage in the management,
ownership or operation of an assisted living facility in Southington and its
contiguous towns, either as an owner, operator, partner, consultant or in any
other capacity whatsoever, without the prior written consent of the other
Partner.
ARTICLE IX
Specifically Authorized Agreements
section 9.1 - Guarantee Fee. In the event that the General Partner or it
principals or affiliates are required to provide a guarantee with respect to any
indebtedness associated with the Project, the General Partner, such principal or
such affiliate shall receive an annual guaranty fee equal to 2% of the amount of
such obligation guaranteed.
Section 9.2 - Property Management. The Limited Partner shall provide
management for the Project under the terms of a management agreement to be
executed between the partnership and the Limited Partner or its designee
("Management Agreement") a copy of which is attached hereto as Exhibit D. The
term of the Management Agreement shall be for five (5) years with an option by
the partnership to extend for an additional five (5) years. The Management
Agreement shall also include, without limitation, a provision for a management
fee equal to One Hundred Twenty-five Thousand Dollars ($125,000) during the
first year of the term and four percent (4%) of the net revenues from operations
at the Project annually thereafter. The Management Agent shall provide assisted
living services to the residents at the Project upon market rates and terms in
accordance with the terms of the Management Agreement, and, subject to the
payment of the management fee, all revenues generated in connection therewith
shall inure to the benefit of the Project.
Section 9.3 - Consulting Services. The Limited Partner shall be paid a
consulting fee in the amount of One Hundred Thousand Dollars ($100,000.00)
payable on the earlier of the date of the initial draw under the construction or
permanent financing of the Project or January 15, 1996. In the event that the
proceeds of any financing are unavailable or inadequate to make such payment,
the General Partner shall make a capital contribution to the Partnership
sufficient to make such payment.
Section 9.4 - Construction Contract. On or before the earlier to occur of
(i) October 1, 1995, or (ii) thirty (30) days after receipt of all necessary
zoning permits and approvals for the Project, including the expiration of all
applicable appeals periods without an appeal having been filed, and receipt of
final
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plans and specifications for the Project, Continuum Care of Massachusetts, Inc.,
or it nominee (the "Developer"), and the Partnership shall enter into a
turnkey development contract (the "Turnkey Contract"), a copy of which is
attached hereto as Exhibit C pursuant to which the Developer shall be
responsible, at its cost and expense, to (i) acquire a site for the Project, and
(ii) obtain, with the assistance of the Limited Partner, all state, federal,
county and municipal land use and health care approvals and permits necessary
for Developer to develop and construct the Project on behalf of the Partnership.
Notwithstanding the foregoing, the Partners hereby acknowledge that the site
located at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx is an acceptable
location for the Project. The contract price to be paid by the Partnership to
the Developer for the development of the Project under the Turnkey Contract
shall be a guaranteed maximum price.
Section 9.5 - Funding Requirements. The General Partner will provide and/or
obtain both construction and permanent financing for the Project substantially
in accordance with the budget attached hereto as Exhibit E (the "Project Loan").
The Project Loan will be non-recourse or substantially non-recourse to the
Partnership and paid on a priority basis from the Cash Flow of the Project. Any
recourse requirement in excess of twenty percent (20%) under the Project Loan
shall require the prior written approval of both Partners.
Section 9.6 - Assignment of Rights. Upon the execution of this Agreement,
the Limited Partner shall assign to the Partnership, and the Partnership shall
assume all of the Limited Partner's right, title and interest in any and all
architectural, engineering and other contracts with respect to the Project free
of any claims. A list of such contracts is set forth in Exhibit A. Upon the
proof of payment of Twenty Thousand Dollars ($20,000) to the party having
appealed the zoning decision concerning the Project, a copy of an executed
withdrawal of such action and a representation that the same will be filed with
the court, the Partnership shall reimburse the Limited Partner for those
expenses set forth on Exhibit B. In no event shall the Partnership be obligated
to assume any other contracts. The Limited Partner represents that all work
performed pursuant to any other contracts has been or will be fully paid at the
time of such assignment except as set forth on Exhibit B.
Section 9.7 - No Additional Fees. No Partner shall receive any other fees,
compensation or reimbursement except as expressly set forth in the Agreement.
Section 9.6 - Reduction of Property Acquisition Costs. The Limited Partner
shall use its reasonable best efforts to seek a reduction in the cost of the
Premises to offset excessive site
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work in the estimated amount of Two Hundred Fifty Thousand Dollars ($250,000).
ARTICLE X
Rights and Obligations of Limited Partner
Section 10.1 - Authority of Limited Partner. Except as set forth in this
Agreement or as permitted by the General Partner at its discretion the Limited
Partner shall not:
(a) take part in the management of the business or transact any business
on behalf of the Partnership; or
(b) have the power to execute instruments or documents on behalf of the
Partnership or bind the Partnership in any manner.
Section 10.2 - Rights of Limited Partner. The Limited Partner shall have
the right:
(a) After reasonable notice to the General Partner, to inspect at the
office of the Partnership during ordinary business hours and to copy
at the requesting Partner's expense:
(i) the list of the names and business addresses of the Partners; and
(ii) the Certificate of Limited Partnership, including amendments, and
powers of attorney utilized in the execution of such documents;
and
(iii) Partnership income tax returns for the three most recent years;
and
(iv) the written Partnership Agreement with all Amendments; and
(v) financial statements of the Partnership for the three most recent
years.
(b) to obtain from the General Partner from time to time (but not more
frequently than quarterly) on reasonable demand just and reasonable
information including the state of the business and financial
condition of the Partnership.
Section 10.3 - Assignment by Limited Partner and General Partner.
Except as expressly set forth herein:
-16-
(a) no interests in the Partnership shall be issued, assigned, sold,
transferred, pledged or otherwise disposed of by a Partner directly,
or indirectly via an assignment, sale, transfer or pledge of the stock
of any such Partner, without the prior written consent of the other
Partner;
(b) any attempted assignment or transfer of any such interest without
compliance with Section 11.5 to the extent applicable shall be of no
force or effect and void as to the Partnership or the Partners.
(c) Notwithstanding the foregoing, A General Partner may at any time
propose to the Limited Partner a person to serve as its successor or
if at such time there shall be more than one General Partner, to serve
as a successor to one or more of the General Partners desiring to
withdraw. If the Limited Partner has consented thereto, all Partners
hereby agree, subject to the provisions of paragraph (g), that this
Agreement and the Certificate shall be appropriately amended to effect
such withdrawal and admission.
(d) In the event of the retirement of any General Partner, the remaining
General Partners, if any, and any successor General Partner shall have
the obligation to elect to continue the business of the Partnership
employing its assets and name, all as contemplated by the laws of the
State and shall be subject to this Agreement in all respects. The
rights provided for in paragraph (g) may be exercised concurrently
with any such continuance. Within ten (10) days after the occurrence
of such retirement, the remaining General Partners, if any, shall
notify the Limited Partner thereof.
(e) If any retirement shall occur at a time when there is no remaining
General Partner, then the Limited Partner shall have the right to
designate a person to become a successor General Partner upon his
written agreement to be bound by any mortgage and any other documents
required in connection therewith and by the provisions of this
Agreement.
(f) If the Limited Partner elects to reconstitute the Partnership and
admit a successor General Partner pursuant to this Section 10.3, the
relationship of the Partners in the reconstituted Partnership shall be
governed by this Agreement.
-17-
(g) If an Event of Bankruptcy shall have occurred as to a General Partner,
the Limited Partner may (i) designate a successor general partner (the
"Successor") willing to serve as a General Partner and reallocate to
the Successor (and the bankrupt General Partner hereby assigns to the
Successor in such event) the interest of the bankrupt General Partner
in profits, losses, credits, Cash Flow and net cash proceeds of a
Capital Transaction (provided, however, that in no event shall any
fees which are earned be so reallocated), or (ii) add an additional
General Partner willing to serve as such with such of the powers of
the bankrupt General Partner hereunder and make a similar reallocation
to that contemplated by the foregoing clause (i), which the bankrupt
General Partner hereby ratifies in such event. Upon the selection of
the Successor as aforesaid and his admission as a General Partner, a
bankrupt General Partner shall not have any further rights, powers,
liabilities or obligations under this Agreement and/or in respect of
the Project, provided, however, that the bankrupt General Partner
shall continue to be responsible for (1) any loss caused by the
nonperformance of its obligations under this Agreement and/or in
respect of the Project to be performed prior to the Development
Obligation Date and (2) the furnishing of any funds required to be
furnished by it hereunder, (c) the Partnership shall be solvent and no
significant disruption in the conduct of its business shall have
occurred and be continuing, and (d) the Partnership and the business
thereof shall have been validly continued under this Agreement and the
Uniform Act.
(h) For the purposes of subsection (g) above, "Event of Bankruptcy" shall
occur if the General Partner shall:
(i) admit in writing its inability to pay its debts as they become
due;
(ii) file a petition in bankruptcy or a petition to take advantage of
any insolvency act;
(iii) make an assignment for the benefit of its creditors;
(iv) consent to the appointment of a receiver for itself or for the
whole or substantially all of its property;
(v) as the result of a petition in bankruptcy filed against it, be
adjudicated a bankrupt; or
-18-
(iv) file a petition or answer seeking reorganization or arrangement
or other aid or relief under any bankruptcy or insolvency laws or
any other law for the relief of debtors.
Assignments of interests in the Partnership or in the Limited Partner
otherwise permitted hereunder may also be subject to compliance with limitations
and requirements under applicable laws, from time to time in effect.
Notwithstanding anything set forth above or elsewhere herein to the
contrary, the General Partner may merge or consolidate with an "Affiliate"
(defined herein as defined in the Securities and Exchange Act of 1934 and the
regulations thereunder) or may assign its partnership interest to an Affiliate,
in connection with a public offering without the consent of the Limited Partner.
ARTICLE XI
Distribution on Dissolution; Rights of First Refusal
Section 11.1 - Priority of Distribution. If the Partnership shall terminate
or dissolve for any reason, the General Partner shall proceed to the liquidation
of the Partnership, and the proceeds of such liquidation shall be applied and
distributed in the following order of priority:
(a) To expenses of liquidation, and to creditors, including Partners who
are creditors, to the extent permitted by law, in satisfaction of
liabilities of the Partnership, all in accordance with the priorities
as set forth in Section 6.3, except for distributions due Partners
under the Act.
(b) To the setting up of any reserves which the General Partner may deem
reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership or the General Partner arising out of,
or in connection with, the Partnership. Such reserve shall be paid
over by the General Partner to a commercial bank or an attorney-at-law
of the State of Connecticut, as escrowee, to be held for the purpose
of disbursing such reserves in payment of any of the aforementioned
contingencies, and, at the expiration of such period as the General
Partner shall deem advisable, to distribute the balance thereafter
remaining in the manner hereinafter provided.
-19-
(c) To Partners and former Partners in satisfaction of liabilities for
distributions under the Act, in accordance with priorities established
under Section 6.3.
(d) Any balance then remaining shall be distributed among all Partners,
pro rata, in accordance with the percentages set forth in Section 5.1,
as such percentages may change from time to time in accordance with
the terms and conditions of this Agreement.
Any Partner who unexpectedly receives an adjustment, allocation, or distribution
described in subparagraphs (4), (5) or (6) of Section l.704-1(b)(2)(ii)(d) of
the Treasury Regulations, which adjustment, allocation or distribution creates
or increases a deficit balance in that Partner's capital account, shall be
allocated items of "book" income and gain in an amount and manner sufficient to
eliminate the deficit balance in that Partner's capital account so created or
increased as quickly as possible.
Allocations under this Section shall be comprised of a pro rata portion of each
item of Partnership income (including gross income) and gain for the year;
however, items of income and gain allocated under Section 6.3 shall be excluded
from the operation of this Section 6.3.
"Book" income and gain shall be determined by reference to values set forth on
the books of the Partnership.
For the purposes of this Section, capital accounts shall be adjusted
hypothetically as provided for in Section 1.704-l(b)(2)(ii)(d) and
l.704-l(b)(4)(iv)(f) of the Treasury Regulations.
The Partners intend that the provisions set forth in this Section will
constitute a "qualified income offset" as described in Section 1.704-1(b) (2)
(ii) (d) of the Treasury Regulations. The regulations shall control in the case
of any conflict between those regulations and this section.
Section 11.2 - Period of Dissolution. A reasonable time shall be allowed
for the orderly liquidation of the Partnership Property and the discharge of
liabilities to creditors so as to enable the General Partner to minimize the
normal losses attendant upon a liquidation.
Section 11.3 - Statement. Each of the Partners shall be furnished with a
statement prepared by the Partnership's then accountants, which shall set forth
the assets and liabilities of the Partnership as of the date of complete
liquidation. Upon the General Partner complying with the foregoing distribution
plan (including payment over to the escrowee if there are sufficient
-20-
funds therefor), the General Partner shall execute and cause to be filed a
Certificate of Cancellation of the Partnership.
Section 11.4 - Liability for Capital Contributions. The General Partner
shall not be personally liable for the return of the Capital Contribution of the
Limited Partners or any portion of such Capital Contribution. Any such return
shall be made solely from Partnership Property.
Section 11.5 - Rights of First Refusal. A "Selling Partner" may sell all or
any part of its Partnership interest provided the Selling Partner shall first be
required to obtain a bona fide acceptable written offer and then offer to sell
its Partnership interest in the Partnership to the other Partner at the same
price, terms and conditions of the written offer. The procedure shall be as
follows:
(a) a copy of the bona fide written offer (the "Outside Offer") shall be
delivered to the non-selling Partner identifying the outside (third
party) offeror.
(b) the non-selling Partner shall have thirty (30) days to exercise the
purchase of the Selling Partner's interest, by delivering a written
statement of acceptance to the Selling Partner.
(c) within thirty (30) days after exercising its option to purchase, such
non-selling Partner shall purchase the Selling Partner's interest on
the same terms and conditions contained in the Outside Offer.
(d) if the non-selling Partner does not exercise its right to purchase as
defined above, the Selling Partner shall have ninety (90) days (from
the expiration of the non-selling Partner's option period) to close on
its sale to the same person and upon the same terms as contained in
the Outside Offer.
(e) If closing does not occur within said time period, the Outside Offer
shall be deemed voided, and any subsequent action will be deemed a new
offer subject to these rules.
ARTICLE XII
Power of Attorney
Section 12.1 - Power of Attorney. The Limited Partner irrevocably
constitutes and appoints the General Partner, its true and lawful attorney, in
his or its name, place and stead, to make, execute, acknowledge and file:
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(a) a Certificate of Limited Partnership setting forth the terms of this
Agreement as required by the laws of the State of Connecticut; and
(b) any Certificate or other instrument which may be required to be filed
by the Partnership under the laws of the State of Connecticut or which
the General Partner shall deem it advisable to file; and
(c) any and all amendments or modifications of the Agreement described in
Section 12.5 or otherwise permitted hereunder and any Amended
Certificates of Limited Partnership required as a result of any such
Amendments; and
(d) all documents which may be required to effectuate the formation,
qualification, continuation, dissolution or termination of the
Partnership.
Section 12.2 - Assignment. The foregoing Power of Attorney, as well as all
other such Powers of Attorney contained in this Agreement, shall survive the
delivery of an assignment by any Limited Partner of the whole or any portion of
his or its interest in this Partnership.
Section 12.3 - Admission of Limited Partner. The General Partner shall
require an Assignee of a Limited Partner to execute, among the conditions of his
admission as a Limited Partner, a Power of Attorney satisfying the requirements
of this Article.
Section 12.4 - Irrevocable. The foregoing Power of Attorney is a special
Power of Attorney coupled with an interest, is irrevocable and shall survive the
death, disability, bankruptcy, insolvency or dissolution of each Limited
Partner.
Section 12.5 - Amendments by General Partner. The General Partner, through
use of the Powers of Attorney, shall have the right to amend this Agreement, if
such Amendments are:
(a) of an inconsequential nature and do not affect the rights of the
Limited Partners in any material respect; or
(b) required or contemplated by this Agreement as, for example, upon the
admission of additional Limited Partners; or
-22-
(c) required or contemplated by any Lender, so long as such amendment is
applied in a manner so as not to discriminate unfairly against a
Partner in a disproportionate manner inconsistent with the substantive
terms of this Agreement; or
(d) in the opinion of counsel to the Partnership, necessary to conform to
the requirements of state or Federal law. Any Amendment so made shall
be deemed effective as of the date of this Agreement.
ARTICLE XIII
Indemnification
Section 13.1 - Indemnification of General Partner. The General Partner
shall not be liable to the Limited Partner due to any actions taken or any
failure to take any action, by the General Partner acting as such or acting as
Tax Matters Partner, or as a result of any taxing authority's disallowance or
addition, any act or omission by the General Partner acting as Tax Matters
Partner, the effect of which may cause or result in loss or damage to the
Partnership or the Limited Partner, if done in good faith and in accordance with
customary business practices and otherwise in accordance with the terms of this
Agreement, shall not subject the General Partner acting as such or acting as Tax
Matters Partner, or any of its successors and assigns to any liability. The
Partnership agrees to indemnify and hold the General Partner acting as such or
acting as Tax Matter Partner, its successors and assigns, harmless from any
claim, loss, expense, liability, action or damage resulting from any such act or
omission, including, administrative reviews and hearings with the IRS or other
government agencies, litigation and appeal (and the reasonable fees and expenses
of attorneys and accountants engaged by the General Partner acting as such or as
Tax Matters Partner, in connection with any such administrative procedure or in
the prosecution or defense of such litigation or appeal), but neither the
General Partner acting as such or acting as Tax Matters Partner, shall be
entitled to be indemnified or held harmless due to, or arising from, its fraud,
bad faith, gross negligence or malfeasance.
Section 13.2 - Indemnification of Partnership.
(a) The Limited Partner shall indemnify and hold the Partnership and the
General Partner harmless from and against any claim, loss, expense,
liability, action or damage including, without limitation, reasonable
costs and expenses of litigation and appeal (and the reasonable fees
and expenses of counsel) due to or arising out of a breach by such
Limited Partner of any
-23-
of its warranties and representations set forth in this Agreement.
(b) The General Partner shall indemnify and hold the Partnership and the
Limited Partners harmless from and against any claim, loss, expense,
liability, action or damage including, without limitation, reasonable
costs and expenses of litigation and appeal (and the reasonable costs
and expenses of counsel) due to or arising out of a breach by General
Partner of any of its warranties and representations set forth in this
Agreement.
ARTICLE XIV
Concluding Provisions
Section 14.1 - Entire Agreement. This Agreement together with the
Management Agreement and the Turnkey Contract contains the entire understanding
of the Partners. There are no oral understandings, terms or conditions, and no
party has relied upon any representation, express or implied, not contained in
this Agreement or in other written agreements between the Parties executed prior
to or concurrently herewith or referenced herein.
Section 14.2 - Amendments. Unless permitted in accordance with Section
8.3(b) or Section 12.5, this Agreement may not be amended in any respect
whatsoever except by a further agreement, in writing, fully executed by the
Partners.
Section 14.3 - Successors. This Agreement shall be binding upon and inure
to the benefit of the Parties and to their respective heirs, personal
representatives, successors and assigns.
Section 14.4 - Joint Effort. Preparation of this Agreement has been a joint
effort of the Parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
Section 14.5 - Captions. The captions of this Agreement are for convenience
and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement.
Section 14.6 - Notice. Any notice, demand, offer or other written
instrument ("Notice") required or permitted to be given shall be in writing
signed by the party giving such Notice and shall be hand delivered or sent,
postage prepaid, by Certified or Registered Mail, Return Receipt Requested, or
by a nationally recognized overnight carrier. Any Notice to be given to the
estate of any deceased person shall be addressed to the personal
-24-
representative of such deceased person at his address or, if there be no
personal representative, to the estate of the deceased person at his address as
set forth in this Agreement. Any party shall have the right to change the place
to which such Notice shall be sent or delivered by similar notice sent in like
manner to all other parties hereto.
Section 14.7 - Effective Date of Notice. The effective date of any offer,
demand, notice or instrument shall be the date of the addressee's receipt of
such offer, demand, notice or instrument, or, if sooner, three (3) business days
after being properly posted.
Section 14.8 - Counterparts. This Agreement may be executed in one or more
copies, each of which shall be deemed an original.
Section 14.9 - Partial Invalidity. The invalidity of one or more of the
phrases, sentences, clauses, Sections or Articles contained in this Agreement
shall not affect the validity of the remaining portions so long as the material
purposes of this Agreement can be determined and effectuated.
Section 14.10 - Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Connecticut.
Section 14.11 - Exhibits. All exhibits referred to in this Agreement shall
be incorporated into this Agreement by such reference and shall be deemed a part
of this Agreement as if fully set forth in this Agreement.
Section 14.12 - Confidentiality. The Parties hereto agree to keep
confidential, and to require their respective representatives to keep
confidential, all confidential information received by one party from one
another in connection with the Project and the Partnership, and no party will
use or disclose to others, or permit the use or disclosure of any such
confidential information obtained from or revealed by the other parties hereto,
except to their lawyers, accountants and other representatives, to government
agencies which have jurisdiction and have requested such information and to
third parties involved in the transaction, and except as specifically set forth
in this Agreement. Such "confidential information" may include financial
statements, cost and expense data, trade secrets, plans, designs and
specifications, marketing and customer data, and such other information as may
be supplied by the respective parties, but only to the extent same is: (x)
sensitive materials generally known to be confidential; (y) non-public financial
information; or (z) marked "confidential," "sensitive," "personal," or other
similar designation. The term "confidential information" shall not include such
information that is: (a) generally ascertainable from public or published
information or trade
-25-
sources; (b) previously in the possession of the disclosing party; and (c)
generated by the disclosing party without the benefit of any information
provided by the other party. Notwithstanding the foregoing, disclosure shall be
allowed, if necessary, to comply with any court order or any legal requirement
applicable to the disclosing party. If a Closing does not occur, each party and
their respective representatives shall forthwith deliver to the other (without
retaining copies thereof) any and all documents or other written information
obtained from the other parties in connection with discussions and negotiations
relating to the Project and the Partnership.
Section 14.13 - No Offer/No Waiver. The delivery of an unexecuted copy of
this Agreement shall not be deemed an offer. No rights are to be conferred upon
any Party until this Agreement has been executed and delivered to each Party and
the Effective Date has occurred.
Section 14.14 - Genders. Any reference to the masculine gender shall be
deemed to include the feminine and neuter genders, and vice versa, and any
reference to the singular shall include the plural, and vice versa, unless the
context otherwise requires.
Section 14.15 - Initialling. Each page which contains a handwritten or
typewritten change and each exhibit which is not attached to this Agreement
shall be initialled or signed by each party.
Section 14.16 - Further Assurances. The Partners shall execute and deliver
such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purpose of this Agreement.
Section 14.17 - Effective Date. This Agreement shall be dated as of the
date signed by the last party to sign.
Dated this 1st day of November, 1995.
GENERAL PARTNER
WITNESS: CONTINUUM CARE OF SOUTHINGTON, INC.
[Illegible] By [Illegible]
------------------------------ --------------------------------
[Illegible] Its Vice President
------------------------------ Duly Authorized
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WITNESS: LIMITED PARTNER:
[Illegible] /s/ Xxxxxx X. Xxxxxx
------------------------------ --------------------------------
Xxxxxx X. Xxxxxx
______________________________
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Exhibit A
List of Contracts to be Assumed
1. Purchase Agreement for the Premises
Exhibit B
Reimbursement Expenses
Xxxxxxx Xxxxxxxx $ 26,902.64
Land Vest LLC 14,000.00
Kratzert & Xxxxx 17,533.41
Landscape Architects and Design Associates 4,280.00
Diversified Environmental Services 5,580.15
Attorney Denorfia 10,105.00
Associated Borings and Recon Engineers 2,533.60
Xxxxxxx Xxxx (ALSA application) 4,000.00
-----------
TOTAL $84,934.80
