DEVELOPMENT AGREEMENT
Between
BELLEFAIR HOLDING COMPANY
And
CAREMATRIX OF MASSACHUSETTS, INC.
and
THE XXXXXXXX CAPITAL COMPANY
and
SPECTRUM BELLEFAIR CORP.
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is by and between BelleFair
Holding Company, a New York general partnership, with an office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ( "BHC"), and CareMatrix of Massachusetts,
Inc., a Delaware corporation having an office 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, The Xxxxxxxx Capital Company, a New York general
partnership, with an office at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Spectrum BelleFair Corp., a New York corporation, with an office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (collectively, the "Developers", and each
individually, a "Developer"), and is entered into for the purpose of reducing to
a formal writing all of the parties understandings with respect to the
development of Phase IV of that certain senior housing community (the "Project")
to be located in Rye Brook, New York described below (the "Property").
In consideration of the undertakings of each of the parties to the other:
IT IS AGREED:
ARTICLE I
Representations
---------------
The parties make each of the following material representations:
Section 1.1 - Permits and Approvals.
The Developers represent that they shall use commercially reasonable
efforts to obtain all state, federal, county and municipal land use
approvals and permits, licenses, easements, and utility agreements
which are necessary for the development of the Project on the Property
(the "Approvals"). The Developers covenant to diligently use
commercially reasonable efforts to obtain all of the Developer's
Approvals in an expeditious manner. In the event that the Developers
are unable to obtain the Developer's Approvals, the Developers shall
have no liability whatsoever to BHC, or any other party and at BHC's or
any Developer's option, this Agreement shall be terminated without
recourse to either party hereto at law or in equity.
Section 1.2 - Other Agreements. BHC and Developers each represents to the other
that neither entering into this Agreement nor performing their respective
obligations hereunder will violate any other agreements or documents by which
either may be bound.
Section 1.3 - Good Standing of the Developers. Each of the Developers represents
that it is duly organized, validly existing and in good standing under the laws
of its state of formation. Each Developer represents that it is empowered and
authorized to execute, deliver and perform its
obligations under this Agreement, and, upon such execution and delivery and
subject to the conditions subsequent set forth in Section 4.1, this Agreement
shall be valid, binding and legal obligation of such Developer, enforceable in
accordance with its terms and in compliance with its certificate of
incorporation and bylaws or articles of organization and all applicable laws of
the state of its formation.
Section 1.4 - Good Standing of BHC. BHC represents that it is duly organized and
validly existing under the laws of the State of New York. BHC represents that it
is empowered and authorized to execute, deliver and perform its obligations
under this Agreement, and upon such execution and delivery and subject to
Section 4.1, this Agreement shall be the valid, binding and legal obligation of
BHC, enforceable in accordance with its terms and in compliance with its
articles of organization and partnership agreement and all applicable laws of
the State of New York.
ARTICLE II
Additional Responsibilities of the Developer
--------------------------------------------
Section 2.1 - Responsibilities. The Developers have performed and shall continue
to perform the following responsibilities (in addition to the responsibilities
outlined in Section 1.2(a) above) all of which shall be subject to the BHC's
approval, in connection with the development of the Project:
(a) Negotiate and execute on behalf of the owner of Phase IV, the
purchase agreement for the acquisition of the Property.
(b) Perform all due diligence in connection with the acquisition of the
Property.
(c) Assist BHC and the owner of Phase IV in arranging for acquisition
financing and Project financing.
(d) Prepare preliminary site planning and development work.
(e) Perform market analysis and feasibility studies for the Property.
(f) Oversee the hiring and supervision of all Project professionals.
(g) Develop a strategic marketing plan designed to meet the specific
needs of the Project.
ARTICLE III
Development Fee
---------------
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Section 3.1 - Amount of Development Fee. The price to be paid by BHC to the
Developers for development services rendered pursuant to this Agreement (the
"Development Fee") for the period from January 1, 1996 to February 28, 1998 is
One Million Two Hundred Eighty One Thousand Dollars ($1,281,000). Each of the
parties comprising the Developer shall receive one-third (1/3) of the
Development Fee in the amount of Four Hundred Twenty Seven Thousand Dollars
($427,000.00). The Development Fee is deemed earned as of the date of closing of
the financing for Phase IV and shall be payable from the financing proceeds for
Phase IV of the Project, as permitted by the len der.
ARTICLE IV
Contingencies
-------------
Section 4.1 - Required Occurrences. This Agreement and the undertakings of the
Developer shall be contingent upon the occurrence of each of the following:
(a) Approvals. All of the Approvals (to the extent then obtainable) and
current utility availability letters shall have been obtained.
(b) Title. An Owner's title insurance policy and Class A-2 ALTA survey
shall have been obtained by the owner of Phase IV which confirms that
there are no exceptions or conditions which would render title to the
Property unmarketable or which will prohibit or restrict the
construction or operation of the Project or which would prevent an
institutional lender from closing a construction or permanent mortgage
loan for the Project in the usual course of its business.
(c) Project Financing. Financing for the acquisition of Phase IV shall
have been obtained.
Section 4.2 - Failure of Contingencies. In the event that any one or more of the
contingencies set forth in this Article is not satisfied, waived or deferred by
the parties in writing, within the period of time set forth above, then, upon
written notice, either party may terminate this Agreement. In such event,
neither party shall have any further responsibility or liability to the other.
ARTICLE V
Concluding Provisions
---------------------
Section 5.1 - Entire Agreement. All prior understandings, letters of intent, and
agreements between the parties are merged in and superseded by this Agreement
(including all Exhibits hereto).
Section 5.2 - Representations. None of the parties shall be bound by any
promises,
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representations, or agreements except as herein expressly set forth.
Section 5.3 - Amendments. This Agreement may not be amended, waived, modified,
altered or changed in any respect whatsoever except by a further agreement, in
writing, executed by each of the parties and consented to by BHC.
Section 5.4 - Joint Effort. The 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 5.5 - Brokers. BHC and each of the Developers represents and warrants to
the other that no broker or finder has acted on its behalf in connection with
this Agreement or the transactions contemplated hereby or referred to herein;
and each agrees to indemnify and hold and save the other harmless from any claim
or demand for commission or other compensation by any broker, finder or similar
agent claiming to have been employed by or on behalf of such party.
Section 5.6 - Assignment. None of the Developers shall have any right to assign
its rights nor delegate its obligations under this Agreement to another entity
or person without the prior written consent of BHC except that any of the
Developers shall have the right to assign this Agreement to, merge with or
consolidate with an "Affiliate" (defined herein as defined in the Securities and
Exchange Act of 1934 and the regulations thereunder) in connection with a public
offering, merger or other transfer.
Section 5.7 - Notices. All notices which may be given to any of the parties
hereunder shall be in writing and shall be hand delivered or sent by registered
or certified mail, return receipt requested, or by Federal Express, and postage
prepaid as follows:
(a) In the event that notice is directed to BHC, it shall be sent to it
at the address set forth above.
(b) In the event that notice is directed to any of the Developers, if
to The Xxxxxxxx Capital Company, it shall be sent to 000 0xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, with a copy to Xxxxxxx Xxxxxxx at the same
address; if to CareMatrix of Massachusetts, Inc., it shall be sent to
000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: President, with a copy
to the General Counsel at the same address; if to Spectrum BelleFair
Corp, it shall be sent to 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
or at such other address or addresses as any of the Developers shall
from time-to-time designated by notice to BHC and the other Developers.
The effective date of any such notice shall be the earlier of actual receipt by
the addressee or three (3) days after such notice is properly deposited for
mailing.
Section 5.8 - Arbitration. Any dispute or controversy arising between the
parties involving the interpretation or application of any provisions of the
Agreement, or arising out of this
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Agreement, or concerning the construction of the proposed Project or the
furnishing thereof shall be submitted to and determined by arbitration in
accordance with the rules of the American Arbitration Association then in
effect.
Section 5.9 - 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 hereof.
Section 5.10 - Successors. This Agreement shall be binding upon the parties
hereto, their respective heirs, executors, administrators, successors, and
assigns.
Section 5.11 - Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
Section 5.12 - Severability. The invalidity or unenforceability of one or more
of the phrases, sentences, provisions, clauses, Sections or Articles contained
in this Agreement shall not affect the validity or enforceability of this
remaining portions so long as the material purposes of this Agreement can be
determined and effectuated.
Section 5.13 - Effective Date. This Agreement shall be deemed to be effective
as of the date set forth below.
Section 5.14 - No Offer. 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.
Section 5.15 - Governing Law. This Agreement shall be governed by the laws of
the State of Connecticut.
Dated as of the 1st day of January, 1998 and executed under seal.
Witness: BELLEFAIR HOLDING COMPANY
By: Spectrum Bellefair Corp.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Name: Xxxxxx X. Xxxxx
Title: Secretary and Treasurer
Name:
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CAREMATRIX OF MASSACHUSETTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Name:
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THE XXXXXXXX CAPITAL COMPANY
By: THE XXXXXXX XXXXXXXX FAMILY TRUST,
DECEMBER 19, 1972, as general Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxx
Title:
Name:
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SPECTRUM BELLEFAIR CORP.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Name: Xxxxxx X. Xxxxx
Title: Secretary and Treasurer
Name:
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