Exhibit 10.182
DEVELOPMENT AGREEMENT
Between
THE BELLEFAIR HOME & LAND 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 The BelleFair
Home and Land Company, a New York general partnership, with an office at 000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Owner"), 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 Phases I through III 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 - Title to Property. The Owner has a valid fee interest in the
Property consisting of approximately 132 acres of land as more fully described
in Exhibit "A". Exhibit "A" and each of the other Exhibits referred to in this
Agreement shall be incorporated into this Agreement by such reference as if
fully set forth in this Agreement.
Section 1.2 - Permits and Approvals.
(a) 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 and construction of
the Project on the Property. 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 the Owner, or any other party and at
the Owner's or any Developer's option, this Agreement shall be
terminated without recourse to either party hereto at law or in equity.
(b) The Owner represents that it 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, construction and operation of the Project on the
Property. The Owner covenants to diligently use commercially
reasonable efforts to obtain all of the Owner's Approvals in an
expeditious manner. In the event that the Owner is unable to obtain
the Owner's Approvals, the Owner shall have no liability whatsoever to
the Developers, or any other party and at the Owners or any
Developer's option, this Agreement shall be terminated without
recourse to either party hereto at law or in equity.
Section 1.3 - Documentation. The Owner shall use commercially reasonable efforts
to obtain construction and permanent financing for the Property, the Project,
the Personal Property (as defined herein) and related development costs
(collectively, the "Project Loan") which shall be sufficient, together with the
Owner's equity contributions, if necessary, to pay the full amount of the total
costs to construct the Project in accordance with the development budget. The
Owner represents that it has obtained a commitment for the financing of Phases
I, II and III of the Project from SwedBank which commitment includes funds
sufficient to pay development and construction management fees payable
hereunder.
Section 1.4 - Other Agreements. The Owner and the Developer 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 1.5 - 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 1.6 - Good Standing of the Owner. The Owner represents that it is duly
organized and validly existing under the laws of the State of New York. The
Owner 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 the Owner, 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 shall also have the following
responsibilities (in addition to the responsibilities outlined in Section 1.2(a)
above) all of which shall be subject to
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the Owners approval, in connection with the development of the Project:
(a) Negotiate and execute on behalf of the Owner, the purchase
agreement for the acquisition of the Property.
(b) Perform all due diligence in connection with the acquisition of the
Property.
(c) Assist the Owner 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
---------------
Section 3.1 - Amount of Development Fee. The price to be paid by the Owner 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 Four Hundred Twenty Thousand Dollars ($1,420,000). Each of the
parties comprising the Developer shall receive one-third (1/3) of the
Development Fee in the amount of Four Hundred Seventy Three Thousand Three
Hundred Thirty Three and 33/100 Dollars ($473,333.33). The Development Fee is
deemed earned as of the date of closing of the financing from SwedBank for the
Project, and shall be payable at such closing or as otherwise permitted by such
lender.
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 which confirms that there are no
exceptions or conditions
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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. The Owner shall have obtained the Project
Financing as outlined in Section 1.3 of this Agreement.
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, 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 the Owner.
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. Each of the Owner 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 the Owner 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.
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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 the Owner, 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 designate by notice to the Owner 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 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.
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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: THE BELLEFAIR HOME & LAND 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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