Exhibit 10.213
AGREEMENT
(Princeton)
THIS AGREEMENT (this "Agreement") made as of this 1st day of July, 1998,
between CareMatrix Corporation, a Delaware corporation ("CareMatrix"), and The
Windrows at Princeton Corporation, a Delaware corporation (the "Company").
WHEREAS, the Company is the owner of 102 independent living villas and 192
condominium units known as The Windrows at Princeton located in Princeton, New
Jersey which are in various stages of development and are being marketed and
sold to various individuals (collectively, the "Windrows").
WHEREAS, CareMatrix is an experienced developer and construction manager
of senior housing and it and/or its affiliates are the developer of the skilled
nursing facility known as Xxxxxxxxx Skilled Nursing and Rehabilitation Center
and the assisted living facility known as Chancellor Park at The Windrows
located in Princeton, New Jersey; and
WHEREAS, the Company desires to retain CareMatrix to perform certain
construction management services and related activities for the development of
the Windrows for the Company, and CareMatrix desires to be retained by the
Company to promote and sell the individual villas and condominium units of The
Windrows to prospective purchasers.
WHEREAS, the Company and CareMatrix desire to set forth the terms and
conditions on which CareMatrix shall be retained by and provide services to the
Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Construction Management and Marketing Services. During the term of this
Agreement, CareMatrix shall serve as the construction manager for the
development of the Windrows and shall have the right and obligation to represent
the Company in the sale of the individual villas and condominium units of the
Windrows to potential owners.
2. Fees and Expenses.
A. CareMatrix shall pay to the Company a fee of Two Million Dollars
($2,000,000) (the "Fee"), payable upon execution of this Agreement, as
consideration for the right to be retained as the construction manager of the
Windrows and to be compensated in accordance with Paragraphs B and C below.
B. CareMatrix shall be entitled to a fee in the amount of six percent (6%)
of the total sales price of each villa or condominium unit of the Windrows sold
to any third party purchasers.
C. CareMatrix shall be entitled to a fee in the amount of seven percent
(7%) of the hard costs related to the construction of the Windrows.
D. CareMatrix shall be entitled to reimbursement of all actual, verifiable
and reasonable direct out-of-pocket and payroll expenses.
3. Term. The initial term of this Agreement shall commence effective on
the date hereof (the "Effective Date") and continue for a period of three (3)
years, and shall be renewable upon thirty (30) days prior notice upon the
agreement of both parties for an additional one (1) year period.
4. Independent Contractor. CareMatrix is and shall be an independent
contractor hereunder and the officers, directors and employees of CareMatrix are
not and shall not be an employee of the Company by virtue of this Agreement.
Neither CareMatrix nor the Company shall hold CareMatrix out as an agent,
partner, officer, director, or other employee of the Company and CareMatrix
further specifically disclaims any and all rights to an equity interest in or a
partnership interest with the Company. CareMatrix specifically acknowledges and
agrees that it shall have no authority to execute any contracts or agreements on
behalf of the Company or its Affiliates and shall have no authority to bind the
Company or its Affiliates to any obligation (contractual or otherwise).
CareMatrix shall devote such of his time, energy and skill as is reasonably
necessary to perform the services described in Paragraph 1 above.
5. Indemnity. CareMatrix shall indemnify and hold harmless the Company
from and against all claims, losses, costs, damages and expenses including,
without limitation, attorneys' fees and costs, relating to injury to or death of
any Person or damage to real or personal property resulting from or arising in
connection with any negligence or intentional or willful misconduct by
CareMatrix in the performance of CareMatrix's duties under this Agreement.
6. Entire Agreement. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
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7. Assignment. CareMatrix may assign its rights hereunder to any of its
Affiliates but shall remain primarily liable hereunder absent a written release
executed by the Company.
8. Severability. If any part of this Agreement or any other agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
9. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service, delivered by a nationally recognized overnight delivery service, or
mailed by registered or certified mail (postage prepaid), return receipt
requested, addressed to:
If to the Company If to the CareMatrix:
The Windrows at Princeton Corporation CareMatrix Corporation
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: President Attn: President
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery, or (b) on the date upon which the
receipt is signed or delivery is refused or the notice is designated by the
postal authorities or delivery service as not deliverable, as the case may be,
if delivered by overnight delivery or mailed.
10. Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
11. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the Commonwealth of Massachusetts without regard to
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principles of conflicts of laws.
12. Definitions: For purposes of this Agreement, the following terms shall
have the meanings set forth below:
12.1. "Affiliate" shall mean, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such
first Person. For purposes of this Agreement, the term "control"
shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise.
12.2. "Person" shall mean an individual, partnership, corporation, limited
liability company, trust, joint venture or other entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
Signed in the CAREMATRIX CORPORATION
Presence of:
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Print Name: Name: Xxxxxx X. Xxxxxxx
---------------------- Title: CEO
THE WINDROWS AT PRINCETON
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Print Name: Name: Xxxxxxx X. Xxxxxxxx
---------------------- Title: Vice President
