Exhibit 10.14
BUSINESS AGREEMENT
BUSINESS AGREEMENT, dated as of September 4, 1998, by and among
Phymatrix Corp., a Delaware corporation ("Phymatrix"), Xxxxxxx X. Xxxxxx
("Xxxxxx") Dasco Development Corporation, a Florida corporation ("Dasco"),
Dasco Development West, Inc. a California corporation ("Dasco West", together
with Dasco, the "Dasco Companies"), The Xxxxxxx Companies, Inc., a Florida
corporation, The Xxxxxxx Companies West, Inc., a California corporation
(collectively, the "Xxxxxxx Companies"), and Xxxxx X. Xxxxxxx ("Xxxxxxx");
RECITALS
WHEREAS, the Dasco Companies and the Xxxxxxx Companies are each engaged
in the development of medical real estate projects;
WHEREAS, Xxxxxxx formerly was an officer and director of Phymatrix and
the Dasco Companies and previously engaged in such development as an officer
of the Dasco Companies;
WHEREAS, Xxxxxxx currently is a shareholder of Phymatrix;
WHEREAS, the standard practice of the parties has been, and is, for
Xxxxxxx to have sole voting power with respect to the controlling general
partner of each limited partnership that owns and develops a medical real
estate project, which limited partnership, upon funding of the construction
loan for the Project, pays development and marketing fees to a development
company for the project;
WHEREAS, Xxxxxxx has resigned from Phymatrix and the Dasco Companies and
has established Xxxxxxx Companies;
WHEREAS, Phymatrix, the Dasco Companies and Xxxxxx on the one hand (the
"Phymatrix Parties"), and the Xxxxxxx Companies and Xxxxxxx on the other
hand, (the "Xxxxxxx Parties"), desire to cooperate and define their rights
and obligations with respect to certain medical development projects
identified in this Agreement, and to resolve all other issues that may arise
from the resignation of Xxxxxxx from Phymatrix and the Dasco Companies and
the formation and operation of Xxxxxxx Companies, including competition
between the Xxxxxxx Parties and the Phymatrix Parties;
WHEREAS, the parties desire to enter into this Business Agreement on all
of the other terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby acknowledge the accuracy of the above recitals and
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. Unless the context requires otherwise, the
following terms shall have the meanings set forth below:
"ACTION" means any action, suit, arbitration, inquiry, proceeding or
investigation of any nature in any forum or jurisdiction.
"AFFILIATE" means with respect to any specified Person, a Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person. The
term "control" (including correlative terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power to
direct or to cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, ability to elect
directors to such Person's board of directors or similar governing body, by
contract, or otherwise; PROVIDED, HOWEVER, that any Person in which a
specified Person owns less than twenty-five percent (25%) of such Person's
capital stock shall not be deemed to be an Affiliate unless the specified
Person has the power to elect a majority of such other Person's directors or
similar governing body or has the power to control such other Person's
operations and policies through contract or other agreement.
"AGREEMENT" means this Business Agreement.
"CLAIM" means any and all claims, actions, causes of action, or other
written notice alleging potential liability.
"DEVELOPMENT AGREEMENT" means a development agreement, project
agreement, project development agreement, business development agreement or
similar agreement for the development and/or construction of a Project.
"DIRECT EXPENSES" means all direct out-of-pocket expenses paid to Third
Parties by Phymatrix or the Dasco Companies in connection with a Shared Fee
Project or a Xxxxxxx Project if (i) such expenses have been incurred or
contractually committed as of the date hereof or (ii) are incurred with the
Xxxxxxx Companies' written consent and the written consent of the development
partnership (or the functional equivalent thereof) after the date hereof.
Direct Expenses shall not include internal labor costs, overhead expenses, or
other indirect expenses of Phymatrix or the Dasco Companies.
"GAAP" means generally accepted accounting principles in effect in the
United States of America from time to time.
"GOVERNMENTAL ENTITY" means any government or any court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, federal, state, local or foreign.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, results of operations or financial condition of a specified business
or a Person, as the case may be.
"PERSON" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Entity.
"PROJECT" means the construction and/or development of a medical
real estate property.
"PROJECT FEES" means all development fees, construction
management fees and marketing/leasing fees attributable to a Project as set
forth in a Development Agreement.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company or partnership of which such Person owns, either
directly or through its Subsidiaries or Affiliates, more than fifty percent
(50%) of (i) the total combined voting power of all classes of voting
securities of such corporation or (ii) the capital or profit interests
therein in the case of a partnership.
"THIRD PARTY" means with respect to any Person, any other Person
who is not an Affiliate of such Person.
SECTION 1.2 INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(ii) accounting terms not otherwise defined herein shall have
the meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections,"
"Subsections," "Paragraphs," and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words
of similar import refer to this Agreement as a whole and not to any
particular provision;
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(vi) the term "include" or "including" shall mean "including
without limitation;" and
(vii) the exhibits to this Agreement are hereby incorporated and
made a part hereof and are an integral part of this Agreement.
ARTICLE II
AGREEMENT
SECTION 2.1 AGREEMENT. The Xxxxxxx Parties on the one hand, and Phymatrix
Parties on the other, shall, as between each other, share fees with respect
to certain Projects and pursue certain other Projects on an exclusive basis
on the applicable terms and conditions of this Agreement.
SECTION 2.2 DASCO PROJECTS. Each Project listed on Exhibit A (the "Dasco
Projects") shall be pursued subject to the terms and conditions of this
Section 2.2.
(a) As between the Xxxxxxx Parties and the Phymatrix Parties,
the Dasco Companies shall have the exclusive right to pursue serving as the
developer of each Dasco Project and the Dasco Companies shall have the right
to receive one-hundred percent (100%) of all Project Fees with respect to
Dasco Projects. The Xxxxxxx Companies shall have no claim to any of the
Project Fees payable, or any benefit of any other nature, with respect to any
Dasco Project and hereby waive absolutely and irrevocably all claims to such
Project Fees and any other benefits of any nature.
(b) Xxxxxx shall have the right to allocate the equity
interests in the general partner (or the functional equivalent thereof) with
respect to the Dasco Projects and Xxxxxxx Parties shall have no claim to such
interests.
(c) The Xxxxxxx Parties agree not to compete to become the
developer of, interfere in the Dasco Companies development of, or claim any
interest in, any Dasco Project.
SECTION 2.3 SHARED FEE PROJECTS. Each Project listed on Exhibit B (the
"Shared Fee Projects") shall be pursued subject to the terms and conditions
of this Section 2.3.
(a) As between the Phymatrix Parties and the Xxxxxxx Parties,
the Xxxxxxx Companies shall have the exclusive right to pursue serving as the
developer of each Shared Fee Project, the Xxxxxxx Companies shall be entitled
to twenty-five percent (25%) of the Project Fees actually received for each
Shared Fee Project and the Xxxxxxx Companies and the Dasco Companies shall
share equally all remaining Project Fees actually received for Shared Fee
Projects. Project Fees for Shared Fee Projects shall be distributed in the
following order of priority:
(i) The Xxxxxxx Companies shall retain all Project Fees
until Xxxxxxx Companies actually receives twenty-five
(25%) of the
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projected Project Fees provided for in the Development
Agreement (the "Projected Project Fees");
(ii) thereafter the Xxxxxxx Companies shall remit to the Dasco
Companies fifty percent (50%) of the remaining Project Fees
actually received by the Xxxxxxx Companies with respect to
such Shared Fee Projects within ten (10) business days of
the actual receipt of such Project Fees;(1)
(iii) if the sum total of all Project Fees actually received by the
Xxxxxxx Companies ("Actual Project Fees") is greater or
lesser than the Projected Project Fees either the Dasco
Companies or the Xxxxxxx Companies, as the case may be,
shall remit to the other party such amount so that the
total payments received by each party pursuant to this
Section 2.3(a) reflects the amount that the parties would
have received had the Projected Project Fees equaled the
Actual Project Fees. Any reconciliation payment required to
be made by the Xxxxxxx Companies pursuant to this subsection
shall be made within five (5) business days of actual
receipt of the final Project Fee, and any reconciliation
payment required to be made by the Dasco Companies pursuant
to this subsection shall be made within five (5) business
days of receipt of a request for payment from the Xxxxxxx
Companies.(2)
(iv) If the Xxxxxxx Companies return all or any portion of the
Project Fees at any time to any Person, whether as a result
of legal process or otherwise, the Dasco Companies shall
within ten (10) business days of receipt of notice remit to
the Xxxxxxx Companies fifty percent (50%) of the amount so
returned not to exceed the amount of Project Fees received
by the Dasco Companies.
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(1) By way of example, if the Development Agreement provides for $400,000 in
Projected Fees with respect to a Project, the Xxxxxxx Companies shall be
entitled to retain the first $100,000 of Project Fees received from such
Project and thereafter, the remaining $300,000 shall be shared, as received,
on an equal basis.
(2) By way of example, if the Projected Projects Fees are $400,000 and the
Actual Project Fees are $360,000, then the Xxxxxxx Companies shall be
entitled to a total of $225,000, i.e. $90,000 (25% of $360,000) plus $135,000
(50% of the difference between $360,000 and $90,000). By way of further
example, if the Projected Project Fees are $400,000 and the Actual Project
Fees are $440,000 then the Xxxxxxx Companies shall be entitled to a total of
$275,000, i.e. $110,000 (25% of $440,000) plus $165,000 (50% of the
difference between $440,000 and $110,000).
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(v) The Phymatrix Parties will look only to the Xxxxxxx Companies
for Project Fees and any and all other claims with respect to
Shared Fee Projects. The Phymatrix Parties shall not
communicate with, nor make a claim against, any hospital,
hospital system or any other Person with respect to a Shared
Fee Project without the prior written consent of the Xxxxxxx
Companies.
(b) Xxxxxxx or his designees and Xxxxxx or his designees shall share
equally the equity interests in the general partner (or the functional
equivalent thereof) with respect to Shared Fee Projects, PROVIDED, HOWEVER,
that Xxxxxxx or his designees shall own all of the equity (including voting)
interests in the controlling general partner of such Project, the Xxxxxx
interests shall be non-voting limited partner interests and Xxxxxxx shall
have the sole discretion with respect to Project structure and negotiation and
execution of the Development Agreement and all Project-related agreements.
(c) The Xxxxxxx Parties on the one hand, and the Phymatrix Parties on
the other, agree that they shall not circumvent the agreements set forth in
this Section 2.3.
(d) In the event that a closing of a construction loan to develop the
Lauderdale Lakes Project or the Hialeah Project shall not have occurred
within six (6) months after the execution of this Agreement, each such
Project for which such construction loan has not closed shall no longer be
considered a Shared Fee Project and each party shall have the right to pursue
such Project in accordance with Section 2.5 of this Agreement.
(e) GUARANTEE In the event that one or more of the Xxxxxxx Parties
guarantees any debt or obligation relating to a Shared Fee Project (a
"Guarantee"), then Phymatrix and the Dasco Companies shall also guarantee
such debt or obligation on the same terms and conditions as the Xxxxxxx
Parties in form and substance satisfactory to the lender with respect to such
Shared Fee Project, PROVIDED, THAT, if Xxxxxxx provides a Guarantee, then in
addition to Phymatrix and the Dasco Companies providing such a corresponding
Guarantee, the equity interests of Xxxxxx and his designees, if any, in the
general partner (or functional equivalent thereof) of the relevant Project
shall, pursuant to a written pledge agreement, commercially reasonable in
form and substance, and applicable financing statements, each to be executed
and delivered to Xxxxxxx simultaneously with the execution and delivery of
such Guarantee, be pledged to Xxxxxxx to secure payment to the Phymatrix and
the Dasco Company's Guarantee and such security interest shall be a valid and
enforceable first priority security interest free of any claims, liens or
encumbrances of any nature (the "Pledge").
The Xxxxxxx Parties shall notify the Phymatrix Parties in writing of the
terms and conditions of any proposed Guarantee. The Phymatrix Parties shall
irrevocably notify the Xxxxxxx Companies in writing within five (5) business
days of receipt of such notice of the intent of the relevant Phymatrix
Parties to provide the Guarantee and Pledge contemplated by this Section
2.3(e). The relevant Phymatrix Parties or Party will thereafter execute and
deliver to
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Xxxxxxx a Guarantee, and Xxxxxx and his designees will execute and deliver to
Xxxxxxx the pledge agreement and financing statements, all simultaneously
with the execution of the corresponding Guarantee by the relevant Xxxxxxx
Party or Parties. The Shared Fee Project to which a Guarantee relates shall
be deemed to be a Xxxxxxx Project effective immediately if (i) the Phymatrix
Parties decline to provide a Guarantee or Pledge required by this Section
2.3, or (ii) the Phymatrix Parties fail to notify irrevocably the Xxxxxxx
Parties in writing within the five (5) business day notice period of their
intent to provide such Guarantee.
A Guarantee provided by any Phymatrix Party pursuant to this Section
2.3(e) shall be equal in rank with the corresponding Guarantee by a Xxxxxxx
Party and as between each other, the relevant Phymatrix Parties and Xxxxxxx
Parties providing the Guarantee shall each be liable for and shall pay to the
other party or parties (in contribution or otherwise), either directly or by
reimbursement, fifty percent (50%) of any amount due and payable under the
Guarantee. Any payment required under this Section 2.3(e) shall be paid within
five (5) business days of receipt of a written demand for payment. The
Guarantees provided by the Xxxxxxx Parties on the one hand and the Phymatrix
Parties on the other pursuant to this Section 2.3(e) shall be joint and
several, PROVIDED, HOWEVER, that such Guarantees may be several with each
side liable for fifty (50) percent of the total amount guaranteed if so
permitted by the Person receiving the Guarantee. Nothing contained herein
shall be construed to obligate any Xxxxxxx Party to provide any guarantee of
any nature.
SECTION 2.4 XXXXXXX PROJECTS. Each project listed on Exhibit C (the "Xxxxxxx
Projects"), shall be pursued subject to the terms and conditions of this
Section 2.4.
(a) As between the Xxxxxxx Parties and the Phymatrix Parties, the
Xxxxxxx Companies shall have the exclusive right to pursue serving as
developer of each Xxxxxxx Project and shall have the right to receive
one-hundred percent (100%) of all Project Fees with respect to Xxxxxxx
Projects. The Phymatrix Parties shall have no claim to any of the Project
Fees payable or any other benefits of any nature with respect to any Xxxxxxx
Project and hereby waive absolutely and irrevocably all claims to any Project
Fees and any other benefits of any nature.
(b) Xxxxxxx shall have the right to allocate one-hundred percent (100%)
of the equity interest in the general partner (or the functional equivalent
thereof) with respect to the Xxxxxxx Projects and the Phymatrix Parties shall
have no claim to such interests.
(c) The Phymatrix Parties agree not to compete to become the developer
of, interfere in the development of, or claim any interest in, any Xxxxxxx
Project.
SECTION 2.5 OTHER PROJECTS. Notwithstanding any other provision of this
Agreement, the Phymatrix Parties and the Xxxxxxx Parties shall each have the
right to pursue any medical real estate development project or opportunity or
any other business opportunity or project not specifically identified as a
Project on Exhibit A, B or C of this Agreement (including projects with
hospital systems identified on Exhibits A, B or C of this Agreement) and each
party hereby expressly disclaims any claim with respect to or interest in any
such project or
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opportunity, including any claim relating to any proprietary right,
trademark, confidential information or any intellectual property right.
SECTION 2.6 DIRECT EXPENSES. If the Xxxxxxx Companies execute a binding
Development Agreement for a Xxxxxxx Project or a Shared Fee Project, the
Xxxxxxx Companies shall on condition that the construction loan for such
Xxxxxxx Project or Shared Fee Project closes and the loan proceeds are
released from escrow, reimburse the Phymatrix Parties for reasonable Direct
Expenses incurred with respect to such Project, PROVIDED, THAT, the (i)
Xxxxxxx Companies receive invoices and other documentation evidencing such
expenses and the payment thereof reasonably satisfactory to the Xxxxxxx
Companies, and (ii) within ten (10) business days of this Agreement, the work
product in the possession or control of Phymatrix or any Dasco Company as of
the date of this Agreement and within ten (10) business days of the receipt
of any work product received by the Phymatrix or any Dasco Company after the
date of this Agreement, Phymatrix and the Dasco Companies assign in writing
all right, title and interest in, and physically delivers to, the Xxxxxxx
Companies all work product resulting from any Direct Expense for which
Phymatrix or the Dasco Company seeks reimbursement. The failure of the
Phymatrix Parties to satisfy the conditions set forth in clauses (i) and (ii)
above shall constitute their irrevocable waiver of any claim for Direct
Expenses with respect to such work product. Reimbursement of Direct Expenses
shall be not be credited toward payment of any Project Fee required to be made
to Phymatrix or the Dasco Companies pursuant to this Agreement. After the date
of this Agreement, the Phymatrix Parties shall incur no Direct Expense for
any Xxxxxxx Project or Shared Fee Project without the prior written approval
of the Xxxxxxx Companies and the development partnership (or the functional
equivalent thereof). The Phymatrix Parties hereby irrevocably authorize all
Third Parties involved in the creation of work product for which Direct
Expenses are sought to deliver such work product and related information to
the Xxxxxxx Companies and otherwise deal directly with their Xxxxxxx
Companies, and will in each instance upon request promptly confirm such
authorization in writing.
SECTION 2.7 NO REPRESENTATION. No representation or warranty is made by any
party to this Agreement that a Development Agreement will be executed, or
that the closing of a construction loan or other permanent financing
arrangement will occur, for any Project described in this Section 2.
SECTION 2.8 DURATION. If a Development Agreement has not been executed, nor
the closing of a construction loan or other permanent financing arrangement
occurred with respect to any Xxxxxxx Project or any Dasco Project within
twenty (20) months from the date of this Agreement, then with respect to each
such Project only, such Project shall no longer be considered a Xxxxxxx
Project or a Dasco Project as the case may be, and all parties shall have the
right to pursue such Project on the terms and conditions set forth in Section
2.5.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PHYMATRIX PARTIES
Each of the Phymatrix Parties hereby, jointly and severally, represents
and warrants to each of the Xxxxxxx Parties as follows:
SECTION 3.1 ORGANIZATION. Phymatrix and each of the Dasco Companies is a
corporation duly organized, validly existing and in good standing under the
laws of the State of its incorporation and has the corporate power and
authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as it is not being conducted or
presently proposed to be conducted, except where the failure to be so
organized, existing, and in good standing or to have such power and authority
would not, individually or in aggregate, have a Material Adverse Effect on
its business, assets, liabilities, results of operations or financial
condition or any transaction contemplated by this Agreement.
SECTION 3.2 AUTHORITY. Each of the Phymatrix Parties has the power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by
Phymatrix and the Dasco Companies and the consummation by Phymatrix and the
Dasco Companies of the transactions contemplated hereby have been duly
authorized by their respective Boards of Directors and such minutes or other
evidence of authorization has been delivered to the Xxxxxxx Parties, and no
other corporate or other proceedings on the part of such parties are
necessary to authorize this Agreement or the transactions contemplated
hereby. Xxxxxx has the legal capacity to execute this Agreement. This
Agreement has been duly and validly executed and delivered by each of the
Phymatrix Parties and (assuming this Agreement constitutes a valid and
binding obligation of the Xxxxxxx Parties) constitutes a valid and binding
agreement of each of the Phymatrix Parties, enforceable against such parties
in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally from time to time in effect and to general equitable
principles.
SECTION 3.3 CONSENTS AND APPROVALS. Except where the failure to make any
filing with, or to obtain any permit, authorization, consent or approval of,
any Governmental Entity would not prevent or materially delay consummation of
the transactions contemplated by this Agreement, or otherwise prevent or
materially delay the performance by any Phymatrix Party of its obligations
under this Agreement, no filing with, and no permit, authorization, consent
or approval of, any Governmental Entity is necessary for the execution,
delivery and performance of this Agreement by the Phymatrix Parties and the
consummation of the transactions contemplated by this Agreement.
SECTION 3.4 NO CONFLICT OR VIOLATION. Neither the execution, delivery or
performance of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) conflict with or result in any breach of any
provisions of the Certificate or Articles of Incorporation, as the case may
be, or the By-Laws of Phymatrix or the Dasco Companies, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) as default (or give rise to any right of termination,
cancellation, vesting, payment, exercise, acceleration, suspension
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or revocation) under, any of the terms, conditions or provisions of any note,
bond, mortgage, deed of trust, security interest, indenture, license,
contract, agreement, plan or other instrument or obligation to which any
Phymatrix Party is a party or by which it or any of its properties or assets
may be bound or affected, (iii) result in a violation or breach of any other
duty or obligation owed by any Phymatrix Party to any other Person or by
which such Phymatrix Party is bound, or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to any Phymatrix
Party or any of its properties or assets, except, in the case of clauses
(ii), (iii), and (iv), for violations, breaches, defaults, terminations,
cancellations, accelerations, creations, impositions, suspensions or
revocations that would not, individually or in the aggregate, have a Material
Adverse Effect on the ability of any Phymatrix Party to perform its
obligations under this Agreement, or impair the effectiveness of any waiver
or release made by the Phymatrix Parties under this Agreement, without loss
to the Xxxxxxx Parties.
SECTION 3.5 LITIGATION. There is no Action (whether at law or equity, before
or by any federal, state or foreign court, tribunal, commission, board,
agency or instrumentality, or before any arbitrator) pending or, to the
knowledge of any Phymatrix Party, threatened against or affecting any
Phymatrix Party, the outcome of which, in the reasonable judgment of the
Phymatrix Parties, is likely, individually or in the aggregate, nor is there
any judgment, decree, injunction, rule, or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against any Phymatrix Party that, insofar as can reasonably be foreseen,
would have a Material Adverse Effect on any Phymatrix Party, or would in any
manner impair the ability of any Phymatrix Party to perform its obligations
hereunder or in connection with the transactions contemplated by this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE XXXXXXX PARTIES
Each of the Xxxxxxx Parties, jointly and severally, represents and
warrants to each of the Phymatrix Parties as follows:
SECTION 4.1 ORGANIZATION. Each of the Xxxxxxx Companies is a corporation
validly existing and in good standing under the laws of the state of its
incorporation and has the corporate power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry
on its business as it is now being conducted or presently proposed to be
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not, individually or in
aggregate, have a Material Adverse Effect on the business, assets,
liabilities, results or operations or financial condition of the Xxxxxxx
Parties or any transaction contemplated by this Agreement.
SECTION 4.2 AUTHORITY. Each of the Xxxxxxx Companies has the corporate power
and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Xxxxxxx Companies and the consummation by it of the transactions contemplated
hereby have been duly authorized by their respective Board of Directors and
evidence of such authorization has been delivered to the Phymatrix
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Parties, and no other corporate or other proceedings on the part of the
Xxxxxxx Companies are necessary to authorize this Agreement or the
transactions contemplated hereby. Xxxxxxx has the legal capacity to execute
this Agreement. This Agreement has been duly and validly executed and
delivered by each of the Xxxxxxx Parties and (assuming this Agreement
constitutes a valid and binding obligation of each of the Phymatrix Parties)
constitutes a valid and binding agreement of each of the Xxxxxxx Parties,
enforceable against such party in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally from time to time in effect and to
general equitable principles.
SECTION 4.3 CONSENTS AND APPROVALS. Except where the failure to make any
filing with, or to obtain any permit, authorization, consent or approval of,
any Governmental Entity would not prevent or materially delay consummation of
the transactions contemplated by this Agreement, or otherwise prevent or
materially delay the Xxxxxxx Parties' performance of its obligations under
this Agreement, no filing with, and no permit, authorization, consent or
approval of, any Government Entity is necessary for the execution, delivery
and performance of this Agreement by the Xxxxxxx Parties and the consummation
of the transactions contemplated by this Agreement.
SECTION 4.4 NO CONFLICT OR VIOLATION. Neither the execution, delivery or
performance of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) conflict with or result in any breach of any
provisions of the Certificate or Articles of Incorporation, as the case may
be, or By-Laws of the Xxxxxxx Companies, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation,
vesting, payment, exercise, acceleration, suspension or revocation) under, any
of the terms, conditions or provisions of any note, bond, mortgage, deed of
trust, security interest, indenture, license, contract, agreement, plan or
other instrument or obligation to which any Xxxxxxx Party is a party or by
which such party or any of the Xxxxxxx Parties may be bound or
affected, (iii) result in a violation or breach of any other duty or obligation
owed by any Xxxxxxx Party to any other Person or by which such Xxxxxxx Party
is bound, or (iv) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to any Xxxxxxx Party or any of its properties or
assets, except in the case of clauses, (ii), (iii) and (iv) for violations,
breaches, defaults, terminations, cancellations, accelerations, creations,
impositions, suspensions or revocations that would not individually or in
the aggregate, have a Material Adverse Effect on the ability of any Xxxxxxx
Party to performs its obligations under this Agreement, or impair the
effectiveness of any waiver or release made by the Xxxxxxx Parties under this
Agreement, without loss to the Phymatrix Parties.
SECTION 4.5 LITIGATION. There is no Action (whether at law or equity, before
or by any federal, state or foreign commission, court, tribunal, board,
agency or instrumentality, or before any arbitrator) pending or, to the
knowledge of any Xxxxxxx Party, threatened against or affecting the Xxxxxxx
Parties the outcome of which, in the reasonable judgment of the Xxxxxxx
parties, is likely, individually or in the aggregate, nor is there any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against any Xxxxxxx Party that, insofar as can reasonably be foreseen, would
have a
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Material Adverse Effect or would in any manner impair the ability of the
Xxxxxxx Parties to perform their obligations hereunder or in connection with
the transactions contemplated by this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1 RELEASE.
(a) Each of the Phymatrix Parties, collectively and individually,
irrevocably waives and releases now and forever, and will not maintain or
assert, any claims, counterclaims, setoffs or Actions of any kind or nature
whatsoever, whether now known or unknown and whenever discovered against any
Xxxxxxx Party, its directors, officers, employees (including the former
employees of the Dasco Companies listed on Exhibit D hereto (the
"Employees")), agents, attorneys, legal representatives (including Xxxxxxxx
X. Xxxxx, Xxxx Xxxxxxxx and Xxxxxxxx X. Xxxxx, P.A.), successors, or assigns,
directly or indirectly arising out of, based upon, or in any manner
connnected with, any Prior Related Event.
(b) Each of the Xxxxxxx Parties, collectively and individually,
irrevocably waives and releases now and forever, and will not maintain or
assert, any claims, counterclaims, setoffs or Actions of any kind or nature
whatsoever, whether now known or unknown and whenver discovered against any
Phymatrix Party, its directors, officers, employees, agents, attorneys, legal
representatives, successors, or assigns, directly or indirectly arising out
of, based upon, or in any manner connected with, any Prior Related Event,
PROVIDED, HOWEVER, that this Agreement shall not be construed to limit,
restrict, modify or amend any right (i) of Xxxxxxx or any Employee to
indemnification as a result of prior service as a director, officer, employee
or agent of any Phymatrix Party subject to applicable law and the
organizational documents of the Phymatrix Parties, (ii) of Xxxxxxx or any
Employee to any benefit that now or hereafter may be due as a result of
Xxxxxxx'x or such Employee's relationship with any Phymatrix Party, including
without limitation, unpaid wages, employee benefits, distribution of 401(k)
account balances, unreimbursed expenses or any other employee benefit, or
(iii) that Xxxxxxx may have relating to or arising from his ownership of
shares of Phymatrix as a member of the class of shareholders generally;
provided, however, that Xxxxxxx may not exercise such right in violation of
Section 5.5 of this Agreement
(c) As used herein, "Prior Related Event", shall mean any
transaction, event, circumstance, action, failure to act, or occurrence of
any sort or type related in any way to (i) the parties' business and
emmployment activities prior to the date hereof, or (ii) relationships
relating to the matters covered by this Agreement prior to the date hereof.
The release contained herein shall not be construed to release any party from
liability for any acts after the date hereof nor shall this release
constitute an admission by any party of any liability for any matter or as a
precedent upon which liability may be asserted.
(d) This Section 5 shall not be construed to limit the force or
effect of the Other Agreements (as defined in Article 8)
12
(e) If requested by any Xxxxxxx Party, any Phymatrix Party shall
execute and deliver an individual release to any Person released pursuant to
subsection (a) above and if requested by any Phymatrix Party, any Xxxxxxx
Party shall execute and deliver an individual release to any Person released
pursuant to Subsection (b) above.
(f) Nothing contained herein shall amend, alter, restrict or affect in
any manner any right or obligation with respect to indemnification or
otherwise that a general partner of a Project may have based on law or the
relevant Project documents and this Agreement shall not grant a general
partner of a Project any additional indemnification rights.
SECTION 5.2 FILES. The Phymatrix Parties agree at their sole expense to
deliver to the Xxxxxxx Companies all files in the possession of or controlled
by any Phymatrix Party relating to the Shared Fee Projects, the Xxxxxxx
Projects and the projects or entities listed on Exhibit E within two (2)
business days from the date hereof. The Phymatrix Parties agree to deliver to
the Xxxxxxx Companies files in the possession of or controlled by any
Phymatrix Party relating to the Phymatrix Projects necessary for any Xxxxxxx
Party to perform its obligations or exercise its rights hereunder immediately
upon the reasonable request of any Xxxxxxx Party. The Phymatrix Parties
shall have the right at their own expense to copy any document delivered
pursuant to this Section solely for the use of such party in the performance
of its obligations and the exercise of its rights hereunder.
SECTION 5.2 PUBLIC ANNOUNCEMENTS.
(a) Each of the Phymatrix Parties on the one hand, and the Xxxxxxx
Parties on the other, agrees that it will not issue any press release or
otherwise make any public statement or respond to any press inquiry with
respect to this Agreement or the transactions contemplated hereby without the
prior approval of the other side (which approval will not be unreasonably
withheld). Notwithstanding the above, each party may disclose the terms of
this Agreement as may be required by law, provided, that the disclosing party
informs and consults with the other party prior to such disclosure to the
extent permitted by law and promptly informs the other party of the basis and
nature of the required disclosure.
(b) Notwithstanding subsection (a), the Phymatrix Parties on the one
hand, and the Xxxxxxx Parties on the other hand, agree to cooperate to inform
the partnerships, hospitals, physicians and other Persons customarily
involved in Projects of the terms of this Agreement to the extent required or
desirable for the relevant party to pursue a Phymatrix Project, Shared Fee
Project or Xxxxxxx Project, as the case may be, including through the
issuance of joint letters to such Persons, including the letters attached as
Exhibit F as to Shared Fee Projects which shall be issued simultaneously with
the execution of this Agreement.
SECTION 5.4 NON-DISPARAGEMENT. Each Phymatrix Party on the one hand, and
each Xxxxxxx Party on the other hand, agrees that it will not in any way,
directly or indirectly, in public, in private, to any Person (including but
not limited to any communications with the press or other media), criticize
of disparage the performance, competency, or ability of a Xxxxxxx Party or
13
Phymatrix Party, as applicable, its subsidiaries or affiliates, or the
officers, directors, employees, or agents, whether in their employment or
personal capacities, at any time after the execution of this Agreement.
SECTION 5.5 NO CAUSE OF ACTION. Xxxxxxx hereby agrees not to bring any
claim, suit or cause of action, whether on an individual or class basis,
Phymatrix or the Dasco Companies in his capacity as a shareholder of
Phymatrix for any event or omission that occurred prior to June 16, 1998 of
which Xxxxxxx was aware as of such date, provided, that, Xxxxxxx is expressly
permitted to exercise all rights that Xxxxxxx may have relating to or arising
from his ownership of shares of Phymatrix as a member of the class of
shareholders generally, including any right that may result from a class
action, claim, suit or cause of action against Pymatrix or the Dasco
Companies brought or initiated by a shareholder of Phymatrix other than
Xxxxxxx.
SECTION 5.6 FURTHER ASSURANCE. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement, including using all reasonable efforts to obtain all necessary
waivers, consents and approvals and to effect all necessary registrations and
filings. In case at any time after the date of this Agreement any further
action is necessary or desirable to carry out the purposes of this Agreement,
the proper officers or directors of the parties, Xxxxxx and Xxxxxxx shall
take all such necessary action. Each Party shall use commercially reasonably
best efforts to encourage the partnerships, hospitals and other relevant
Persons not a party to this Agreement to cooperate with the implementation of
this Agreement.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and covenants of each of the parties contained in
this Agreement (or in any document delivered in connection herewith) shall be
deemed to have been made on the date of this Agreement (except as otherwise
provided therein), shall be deemed to be material and to have been relied
upon, notwithstanding any investigation made by any party, shall survive
indefinitely and, except as otherwise specifically provided in this
Agreement, shall remain operative and in full force and effect.
SECTION 6.2 INDEMNIFICATION.
(a) Phymatrix and each of the Dasco Companies shall indemnify and hold
harmless each Xxxxxxx Party and its Affiliates (other than as set forth in
subsection (c)(ii) of this Section), officers, directors, stockholders,
employees, agents and successors and assigns at all times after the date of
this Agreement from and against: any and all loss, cost, liability, damage
and expense (including legal and other expenses incident thereto) to the
extent not covered by insurance (each a "Loss" and, collectively, "Losses")
arising out of or resulting from (i) any
14
inaccuracy, misrepresentation or breach of any representation, warranty,
covenant or agreement of such party under this Agreement, the exhibits hereto
or other certificates, documents or instruments delivered in connection
herewith, (ii) fees, expenses and other costs incurred in the defense of any
cause of action or claim brought by, in the name of or on behalf of any
Phymatrix Party with respect to any Prior Related Event or the negotiation,
execution, or consummation of this Agreement; and (iii) claims, actions,
suits, proceedings, demands, assessments, judgments, costs and expenses
(including legal and other expenses incident thereto) incident to any of the
foregoing.
(b) The Xxxxxxx Companies shall indemnify and hold harmless each
Phymatrix Party and its Affiliates (other than as set forth in subsection
(c)(ii) of this Section), officer, directors, stockholders, employees, agents
and successors and assigns at all times after the date of this Agreement from
and against any Losses arising out of our resulting from (i) any inaccuracy,
misrepresentation or breach of any representation, warranty, covenant or
agreement of such party under this Agreement, the exhibits hereto or other
certificates, documents or instruments delivered in connection herewith, and
(ii) all claims, actions, suits, proceedings, demands, assessments,
judgments, costs and expenses (including legal and other expenses incident
thereto) incident to any of the foregoing.
(c) Notwithstanding any other provision of this Section 6.2, nothing
set forth herein shall (i) preclude any party from maintaining nor preclude
any indemnification provided under this Section 6.2, with respect to any
claim or action, alleging a breach of this Agreement against any other party
hereto, or (ii) amend, alter, restrict or affect in any manner any right or
obligation with respect to indemnification or otherwise that a general
partner of a Project may have based on law or the relevant Project documents
and this Agreement shall not grant a general partner of a Project any
additional indemnification rights.
SECTION 6.3 INDEMNIFICATION PROCEDURES.
(a) If at any time a Person entitled to indemnity under Section 6.2
(the "INDEMNITEE") shall receive notice of any state of facts that may result
in a Loss of the type described in Section 6.2, the Indemnitee shall promptly
give written notice (a "NOTICE OF CLAIM") to the Person obligated to provide
indemnity hereunder (the "INDEMNITOR") of the discovery of such potential or
actual Loss. A Notice of Claim shall set forth (A) a brief description of the
nature of the potential or actual Loss and (B) to the extent then feasible
the total amount of Loss anticipated (including any costs or expenses which
have been or may be reasonably incurred in connection therewith). Payment of
the amount of Loss due the Indemnitee as set forth in a Notice of Claim shall
be made by the Indemnitor no later than the thirtieth (30th) day after the
date of the Notice of Claim (or such later date as the Indemnitor receives
written notice that an actual Loss has occurred). The Indemnitee's failure to
provide copies of documents or to furnish relevant data shall not constitute
a defense (in whole or in part) to any claim by the Indemnitee against the
Indemnitor for indemnification, except and only to the extent that such
failure shall have caused or increased such liability or adversely affected
the ability of the Indemnitor to defend against or reduce its liability.
15
(b) If the Indemnitor shall reject any Loss as to which a Notice of
Claim is sent by the Indemnitee, the Indemnitor shall give written notice of
such rejection to the Indemnitee within thirty (30) days after the date of
receipt of the Notice of Claim. Upon such rejection, the parties shall
attempt in good faith to resolve any disagreement.
(c) If any Notice of Claim relates to any claim made against an
Indemnitee by a third person, the Notice of Claim shall state the nature,
basis and amount of such claim. The Indemnitor shall have the right, at its
election, by written notice given to the Indemnitee to assume the defense of
the claim as to which such notice has been given. Except as provided in the
next sentence, if the Indemnitor so elects to assume such defense, it shall
diligently and in good faith defend such claim and shall keep the Indemnitee
reasonably informed of the status of such defense, and the Indemnitee shall
cooperate fully with the Indemnitor in the defense of such claim and may
participate at it own expense, provided that in the case of any settlement
providing for remedies other than monetary damages for which indemnification
is provided, the Indemnitee shall have the right to approve the settlement,
which approval shall not be unreasonably withheld or delayed. If the
Indemnitor does not so elect to defend any claim as aforesaid or shall fail
to defend any claim diligently and in good faith (after having so elected),
the Indemnitee may assume the defense of such claim and take such other
action as it may elect to defend or settle such claim as it may determine in
its reasonable discretion, provided that the Indemnitor shall have the right
to approve any settlement, which approval will not be unreasonably withheld
or delayed.
ARTICLE VII
REPRESENTATIVES
The Xxxxxxx Parties hereby appoint Xxxxxxx XxXxxxx or such other Person
as Xxxxxxx may designate from time to time, as their representative with
respect to any dispute, controversy, claim or disagreement between or among
any of the parties hereto arising from, relating to or in connection with
this Agreement ("Dispute"). The Phymatrix Parties hereby appoint Xxxx
Xxxxxxxx as their representative with respect to any Dispute. In the event of
a Dispute, the representatives shall attempt in good faith to amicably
resolve the Dispute within five (5) business days without the necessity of
any formal legal proceeding. If the representatives have not resolved such
Dispute within such five (5) business day period, either representative shall
have the right to present the Dispute to the chief executive officers (or
functional equivalent) of Phymatrix and the Xxxxxxx Companies, who shall meet
(by conference telephone call or in person at a mutually agreeable site)
within 72 hours after notification of such Dispute and attempt in good faith
to resolve the Dispute within five (5) business days prior to initiation of
any formal legal proceeding. This Article VII shall not prohibit any party
from seeking a temporary injunction or other provisional order or relief at
any time to protect its business interests, assets or to ensure enforcement
of any possible claim.
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ARTICLE VIII
OTHER AGREEMENTS
Notwithstanding any other provision of this Agreement, any agreement,
contract or understanding that involves Gosman, Rendina, and/or any entity in
which Xxxxxxx or Xxxxxx is involved other than Dasco, Dasco West, Phymatrix
or the Xxxxxxx Companies (the "Other Agreements") shall not be amended,
modified, limited, altered or restricted in any way by this Agreement and all
Other Agreements shall remain in full force and effect after execution of
this Agreement.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 NOTICES. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given (a) in the case of a
facsimile transmission, when received by recipient in legible form and sender
has received an electronic confirmation of receipt of the transmission
(provided that such transmission is received by 5:00 p.m. on a business day;
otherwise, such transmission shall be deemed to have been received on the
next business day); (b) in the case of delivery by a standard overnight
carrier, upon the date of delivery indicated in the records of such carrier;
or (c) in the case of delivery by hand, when delivered by hand addressed to
the respective parties at the following addresses (or such other address for
a party as shall be specified by like notice):
If to the Xxxxxxx Parties, to:
Xxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telefax: (000) 000-0000
17
If to Phymatrix Parties:
Phymatrix Corp.
000 X. Xxxxxxx Xxxxx
Xxxxx 0000X
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxx
Telefax: (000) 000-0000
with a copy to:
Xxxx Xxxxxxxx
000 X. Xxxxxxx Xxxxx
Xxxxx 0000X
Xxxx Xxxx Xxxxx, XX 00000
Telefax: 000-000-0000
and
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telefax: (000)-000-0000
SECTION 9.2 DESCRIPTIVE HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
SECTION 9.3 ENTIRE AGREEMENT ASSIGNMENT. This Agreement (including the
Exhibits hereto) (a) constitutes the entire agreement and supersedes all
other prior agreements and understandings (other than those contained in the
Other Agreements which shall remain in full force and effect) written and
oral, among the parties or any of them, with respect to the subject matter
hereof, including, without limitation, any transaction between or among the
parties hereto and (b) shall not be assigned by operation of law or
otherwise. Notwithstanding the preceding sentence, the Phymatrix Parties
shall have the right to assign on a pass-through basis their beneficial
interest in amounts due to the Phymatrix Parties under Sections 2.3 and 2.6
of this Agreement, PROVIDED, HOWEVER, that the assignee or assignees of such
beneficial interests shall not have any rights hereunder other than the right
to receive from the Phymatrix Parties payments made by the Xxxxxxx Parties to
the Phymatrix Parties hereunder, as and when received, and the Xxxxxxx
Parties shall only be required to deal with the Phymatrix Parties with
respect to the matters set forth herein. Nothing contained herein shall be
construed as granting any Phymatrix Party the right to delegate any duty or
obligation under this Agreement, which duties and obligations shall
18
remain in full force and effect notwithstanding any assignment of beneficial
interests pursuant to this Section 9.3.
SECTION 9.4 GOVERNING LAW. The laws of the State of Florida, excluding its
choice of law principles, shall govern the relationship among the parties and
disputes, differences, controversies, or claims directly or indirectly
arising out of, relating to, or having a connection with this Agreement,
including those relating to the validity, interpretation, construction,
performance, breach, enforceability or termination of this Agreement and
duties based on tort, contract or statutory concepts.
SECTION 9.5 RELATIONSHIP OF THE PARTIES. Except to the extent specifically
provided herein, each party is acting independently and this Agreement shall
not create any joint venture, partnership, relationship, obligation,
fiduciary duty or other duty between the Phymatrix Parties on the one hand
and the Xxxxxxx Parties on the other, including an obligation to inform any
party of any business opportunity.
SECTION 9.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 9.7 NO PUNITIVE DAMAGES. Notwithstanding anything to the contrary
contained in this Agreement, the Xxxxxxx Parties on the one hand, and the
Phymatrix Parties on the other, each acknowledge and agree that to the extent
permitted by law there shall be no punitive damages awarded by any court,
tribunal or administrative or other proceeding arising out of any dispute
between or among any of the parties (including, without limitation, any
dispute alleged between or among any parties based on alleged fraudulent,
willful or dishonest conduct by any party), it being the express intent of
all parties to this Agreement to completely and irrevocably waive any right
to obtain punitive damages in connection with any such proceeding. Each party
acknowledges that prior to agreeing to the foregoing provision it has
consulted with its counsel as to the consequences of such provision.
SECTION 9.8 DRAFTING. Each party acknowledges that its legal counsel
participated in the preparation of this Agreement. The parties therefore
stipulate that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of
this Agreement to favor any party against the other.
SECTION 9.9 EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby and thereby shall be
paid by the party incurring such expenses except as otherwise provided herein.
SECTION 9.10 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
19
SECTION 9.11 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement. This Agreement
shall become effective when each party hereto shall have received
counterparts thereof signed by all of the other parties hereto.
SECTION 9.12 SEVERABILITY; VALIDITY; PARTIES IN INTEREST. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity of unenforceability of the other Agreement shall be deemed to be
unenforceable by reason of its extent, duration, scope or otherwise, then the
parties contemplate that the court making such determination shall reduce
such extent, duration, scope or other provision and shall enforce it in its
reduced form for all purposes contemplated by this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any person not a
party to this Agreement any rights or remedies of any nature whatsoever under
or by reason of this Agreement.
SECTION 9.12 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any provision of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
[This space is intentionally left blank]
20
IN WITNESS WHEREFORE, each party hereto has executed or caused this
Agreement to be executed on its behalf by its duly authorized representative,
all as of the date first above written.
PHYMATRIX CORP.
/s/ XXXXXXX X. XXXXXX
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Chairman and CEO
DASCO DEVELOPMENT CORPORATION
/s/ XXXXXXX X. XXXXXX
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Chairman and CEO
DASCO DEVELOPMENT WEST, INC.
/s/ XXXXXXX X. XXXXXX
-----------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Chairman and CEO
XXXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
THE XXXXXXX COMPANIES, INC.
/s/ XXXXX X. XXXXXXX
-----------------------------------
By: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
21
THE XXXXXXX COMPANIES WEST, INC.
/s/ XXXXX X. XXXXXXX
-----------------------------------
By:
-------------------------------
Title:
-----------------------------
XXXXX X. XXXXXXX
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
22
