General Authority and Powers of Managers. Except as set forth in those provisions of this Agreement that specifically require the vote, consent, approval or ratification of the Members, the Managers shall have complete authority and exclusive control over the management of the business and affairs of the Company. No Member has the actual or apparent authority to cause the Company to become bound in any contract, agreement or obligation, and no Member shall take any action purporting to be on behalf of the Company. No Manager shall cause the Company to become bound to any contract, agreement or obligation, and no Manager shall take any other action on behalf of the Company, unless such matter has received the vote, consent, approval or ratification as required pursuant to this Agreement with respect to such matter or except as provided in Section 5.2 below with respect to the authority and actions of HHBF. It is acknowledged that all decisions relating to the Hospital and medical staff bylaws and physician credentialling matters shall be handled in accordance with Section 11.1(g). Except as provided in this Agreement, decisions and actions to be taken by the Managers shall be deemed to have been made only upon the affirmative approval or consent of HHBF and the Investor Manager. In the event a decision, approval or consent is requested of the Investor Manager by HHBF, it shall be deemed to have been affirmatively made if the Investor Manager fails to respond to any such written request therefor within five (5) days of notice thereof by HHBF, provided however, once the Hospital has opened for business and regularly conducts such business the five (5) day period shall be extended to ten (10) days. Notwithstanding anything in this Agreement to the contrary, all decisions and actions to be made by the Managers with respect to any loan, lease or other similar financing of the development, construction or operation of the Hospital or the Company's affairs, including without limitation the decisions with respect to incurring any indebtedness or the refinancing thereof, shall be made by HHBF and shall be subject to the consent of the Investor Manager, which consent shall not be unreasonably withheld; provided, the application of the Company's funds toward the repayment of all or a portion of any financing of the Company in excess of amounts then required to be paid (i.e., voluntary prepayments) shall be made only with the consent of HHBF and the Investor Manager. The following material decisions shall be made by the Managers as determined above, except as otherwise provided: (a) Hospital Development. HHBF and the Investor Manager shall approve the development plan for the Hospital, the selection of the site for the Hospital, the design of the Hospital and the construction for the development of the Hospital. (b) Capital Improvements and Expansion. Any renovation and expansion plans and capital equipment expenditures with respect to the Hospital shall be reviewed and
Appears in 2 contracts
Samples: Operating Agreement (Medcath Corp), Operating Agreement (Medcath Corp)
General Authority and Powers of Managers. Except as set forth in those provisions of this Agreement that specifically require the vote, consent, approval or ratification of the Members, the Managers shall have complete authority and exclusive control over the management of the business and affairs of the Company. Subject to the terms and conditions of this Agreement and except as otherwise provided herein, all Material Agreements and Material Decisions with respect to the business and affairs of the Company shall be approved or made by AHH Management and the Investor Manager in accordance with Section 5.16 hereof. No Member has the actual or apparent authority to cause the Company to become bound in any contract, agreement or obligation, and no Member shall take any action purporting to be on behalf of the Company. No Manager shall cause the Company to become bound to any contract, agreement or obligation, and no Manager shall take any other action on behalf of the Company, unless such matter has received the vote, consent, approval or ratification as required pursuant to this Agreement with respect to such matter or except as provided in Section 5.2 below with respect to the authority and actions of HHBFAHH Management. It is acknowledged that all The day-to-day management of the business and affairs of the Company, including those agreements and decisions which are not Material Agreements or Material Decisions, shall be the responsibility of AHH Management, provided, however, decisions relating to medical and clinical practice at the Hospital including, without limitation, establishing standardized clinical pathways shall be made exclusively by the qualified medical personnel of the Hospital in accordance with the Hospital and medical staff bylaws. Subject in all cases to the foregoing, AHH Management shall have the right and the power, if, as, and when it, from time to time, deems necessary or appropriate on behalf of the Company, subject only to the terms and conditions of this Agreement:
(a) To negotiate and execute on behalf of the Company all documents, instruments and agreements reasonably necessary or appropriate to lease, acquire and/or construct the Hospital and/or the real property on which the Hospital is or will be located, and to borrow funds to finance such lease, acquisition and/or construction (it being acknowledged that the Hospital may be an existing building or may be a newly constructed building);
(b) To prepare a budget for the development of the Hospital and thereafter, annual operating budgets;
(c) To acquire the Equipment and enter into loans or other financing arrangements therefor;
(d) To handle the negotiation and execution of all such other agreements regarding the purchase of goods or services for the Hospital;
(e) To establish procedures for quality assurance, peer review and granting privileges to physicians with other specialties at the Hospital, subject to the terms of the Hospital and medical staff bylaws to be adopted for the Hospital. It is acknowledged and agreed that the establishment of an internal review board and of standards for physician credentialling matters credentialing shall be handled accomplished pursuant to the medical staff bylaws and appointment procedures of the Hospital in accordance with Section 11.1(g). Except as provided in this Agreement, decisions and actions to be taken by the Managers shall be deemed to have been made only upon the affirmative approval or consent of HHBF and the Investor Manager. In the event a decision, approval or consent is requested of which the Investor Manager by HHBF, it shall be deemed to have been affirmatively made if participate through his membership on the Investor Manager fails to respond to any such written request therefor within five (5) days governing body of notice thereof by HHBF, provided however, once the Hospital has opened for and or the medical staff of the Hospital;
(f) To expend all or portions of the Company's capital and income in furtherance of or relating to the Company's business and regularly conducts purposes, including, but not limited to, payment of all ongoing operational expenses, payment of commissions, organization expenses, professional fees, rental fees, and management fees, and to invest in short-term debt obligations (including, but not limited to, obligations of federal and state governments and their agencies, commercial paper, and certificates of deposit of commercial banks, or savings banks or savings and loan associations) such business the five (5) day period shall be extended to ten (10) days. Notwithstanding anything in this Agreement to the contrary, all decisions and actions to be made by the Managers with respect to any loan, lease or other similar financing of the development, construction Company's funds as are temporarily not required for the development or operation of the Hospital Company and the payment of Company obligations;
(g) To employ or the Company's affairsretain on such terms and for such compensation as AHH Management may reasonably determine, such persons, firms, or corporations as AHH Management may deem advisable, including without limitation qualified medical and other employees necessary or appropriate to operate the decisions with respect Hospital, attorneys, accountants, financial and technical consultants, supervisory managing agents, insurance brokers, brokers and loan brokers, appraisers, architects and engineers, who may also provide such services to incurring any indebtedness or AHH Management, provided that the refinancing thereof, selection of the senior administrator of the Hospital shall be made by HHBF a Material Decision. It is further acknowledged and agreed that the Hospital shall include on the full-time staff a director of managed care/business development, two admission coordinators, two clinical coordinators, ACT program, two research nurses, a vice president-clinical services, a vice president-finance, a vice president-managed care, a catheterization laboratory director, catheterization laboratory nurses and technicians, an operating room director, operating room nurses and technicians, a half-time director of professional relations and referral coordinator and a quarter-time medical writer and director of marketing, the selection, retention, removal and compensation of which personnel shall be subject Material Decisions; Either of the Managers may initiate the process to determine whether or not the employment of any of the above individuals shall be terminated by providing to the other a written report which documents the reasons why the individual's performance is materially deficient and includes a recommended course of action for the Company to take. With the consent of the Investor non-initiating Manager, which consent shall not be unreasonably withheld, the Manager shall cause the Company to take such recommended action; provided, such action shall be consistent with the application of the Company's funds toward the repayment of all or a portion of any financing established disciplinary procedures of the Company with respect to employees, which include any procedures set forth in excess of amounts then required to any employee handbooks or manuals; provided, further the actions must be paid (i.e., voluntary prepayments) shall be made only consistent with the consent of HHBF and the Investor Manager. The following material decisions shall be made by the Managers as determined above, except as otherwise provided:
(a) Hospital Development. HHBF and the Investor Manager shall approve the development plan for the Hospital, the selection obligations of the site for Company under any contracts or agreements to which it is a party, including agreements with the Hospital, the design of the Hospital individual in question and the construction for the development of the Hospitalwith applicable law.
(bh) Capital Improvements To execute leases, deeds, contracts, rental agreements, construction contracts, sales agreements, and Expansion. Any renovation management contracts;
(i) To exercise all rights, powers, and expansion plans and capital equipment expenditures privileges of the Company as lessee with respect to the Hospital or rights held by the Company;
(j) To consent to the modification, renewal, or extension of any obligations to the Company of any Person or of any agreement to which the Company is a party or of which it is a beneficiary;
(k) To execute in furtherance of any or all of the purposes of the Company, any deed, lease, deed of trust, security interest, mortgage, promissory note, bill xx sale, assignment, contract, or other instrument purporting to purchase or convey or encumber in whole or in part the Equipment or the Hospital or other real or personal property of the Company;
(l) To prepay in whole or in part, refinance, recast, increase, modify, or extend any security interest, deed of trust, or mortgage affecting the Hospital and in connection therewith to execute any extensions or renewals thereof on the Hospital and to grant security interests in any of the Equipment or the Hospital;
(m) To adjust, compromise, settle, or refer to arbitration any claim against or in favor of the Company, and to institute, prosecute, and defend any actions or proceedings relating to the Company, its business, and properties;
(n) To acquire and enter into any contract of insurance which AHH Management deems necessary or appropriate for the protection of the Company and AHH Management, for the conservation of the Company or its assets, or for any purpose beneficial to the Company; however, neither AHH Management nor its Affiliates shall be reviewed compensated for providing insurance brokerage services relating to obtaining such insurance;
(o) To prepare or cause to be prepared reports, statements, and other relevant information for distribution to the Members, including annual reports;
(p) To open accounts and deposit and maintain funds in the name of the Company in banks or savings and loan associations; provided, however, that the Company's funds shall not be commingled with the funds of any other Person;
(q) To cause the Company to make or revoke any of the elections referred to in Section 754 of the Internal Revenue Code of 1986 as amended or any similar provisions enacted in lieu thereof;
(r) To make all decisions related to generally accepted principles of accounting to be applied on a consistent basis and federal income tax elections;
(s) To possess and exercise, subject to the restrictions contained in this Agreement, any and all of the rights, powers and privileges of a manager under the Act;
(t) To execute, acknowledge, and deliver any and all documents or instruments in connection with any or all of the foregoing;
(u) To modify or otherwise improve the Hospital, subject to the restrictions contained in this Agreement;
(v) To manage, direct, and guide the operation of the Hospital including all necessary acts relating thereto, other than medical or clinical matters which shall be under the direction of the Investor Manager and other agreed upon qualified medical personnel;
(w) To establish minimum insurance requirements for all physicians practicing at the Hospital;
(x) To admit as Members additional investors who have been proposed for Member status by AHH Management and approved by the Investor Manager, which approval shall be given or withheld in the sole and absolute discretion of the Investor Manager; and
(y) To sell assets of the Company, subject to the restrictions contained in this Agreement.
(z) To propose and implement a marketing plan for the Hospital which for the first year of operation shall have a budget of not less than five hundred thousand dollars ($500,000.00) (such marketing plan and related budget shall be a Material Decision); provided, however, that if after the first year of operations the Hospital does not have net income before taxes calculated in accordance with generally accepted accounting principles during any six-month period, such marketing budget may be lowered in future years and in all events will be subject to the agreement and approval of the Managers. It is further acknowledged and agreed that the Investor Manager may elect to be actively involved in the design and implementation of the marketing plan, and that the marketing plan and marketing budget shall be a Material Decision in all years. In the event that substantially all of the assets of MedCath Incorporated ("MedCath") are sold to, or fifty-one percent (51%) or more of the capital stock of MedCath is acquired by, a third party who is not an Affiliate of MedCath but who is, directly or indirectly, an owner or operator of a hospital within thirty (30) miles of the Hospital, then following the closing of such transaction, the Investor Manager shall have the right to manage the day to day business and affairs of the Company in lieu of AHH Management (subject to the other terms of this Agreement) unless the senior management of MedCath after such transaction is and remains for at least one (1) year substantially the same as the senior management of MedCath prior to such transaction.
Appears in 2 contracts
Samples: Operating Agreement (Medcath Corp), Operating Agreement (Medcath Corp)
General Authority and Powers of Managers. Except as set forth in those provisions of this Agreement that specifically require the vote, consent, approval or ratification of the Members, the Managers shall have complete authority and exclusive control over the management of the business and affairs of the Company. Subject to the terms and conditions of this Agreement and except as otherwise provided herein, all Material Agreements and Material Decisions with respect to the business and affairs of the Company shall be approved or made by the Managers in accordance with Section 5.16 hereof. No Member has the actual or apparent authority to cause the Company to become bound in any contract, agreement or obligation, and no Member shall take any action purporting to be on behalf of the Company. No Manager shall cause the Company to become bound to any contract, agreement or obligation, and no Manager shall take any other action on behalf of the Company, unless such matter has received the vote, consent, approval or ratification as required pursuant to this Agreement with respect to such matter or except as provided in Section 5.2 below with respect to the authority and actions of HHBFDTO Management. It is acknowledged that all The day-to-day management of the business and affairs of the Company shall be the responsibility of DTO Management, which management shall be subject to decisions, guidelines and policies made or established by the Managers hereunder, provided, however, decisions relating to medical and clinical practice at the Hospital shall be made exclusively by the qualified medical personnel of the Hospital. Subject in all cases to the foregoing, DTO Management shall have the right and the power, if, as, and when it, from time to time, deems necessary or appropriate on behalf of the Company, subject only to the terms and conditions of this Agreement:
(a) To negotiate and execute on behalf of the Company all documents, instruments and agreements reasonably necessary or appropriate to lease, acquire and/or construct the Hospital and/or the real property on which the Hospital is or will be located, and to borrow funds to finance such lease, acquisition and/or construction (it being acknowledged that the Hospital may be an existing building or may be a newly constructed building);
(b) To prepare a budget for the development of the Hospital and thereafter, annual operating budgets;
(c) To acquire the Equipment and enter into loans or other financing arrangements therefor;
(d) To handle the negotiation and execution of all such other agreements regarding the purchase of goods or services for the Hospital;
(e) To establish procedures for quality assurance, peer review and granting privileges to physicians with other specialties at the Hospital, subject to the terms of the Hospital and medical staff bylaws adopted for the Hospital;
(f) To expend all or portions of the Company's capital and physician credentialling matters income in furtherance of or relating to the Company's business and purposes, including, but not limited to, payment of all ongoing operational expenses, payment of commissions, organization expenses, professional fees, rental fees, and management fees, and to invest in short-term debt obligations (including, but not limited to, obligations of federal and state governments and their agencies, commercial paper, and certificates of deposit of commercial banks, or savings banks or savings and loan associations) such of the Company's funds as are temporarily not required for the development or operation of the Company and the payment of Company obligations; provided, that the Managers shall establish cash management guidelines to be followed by DTO Management;
(g) To employ or retain on such terms and for such compensation as DTO Management may reasonably determine, such persons, firms, or corporations as DTO Management may deem advisable, including without limitation qualified medical and other employees necessary or appropriate to operate the Hospital, attorneys, accountants, financial and technical consultants, supervisory managing agents, insurance brokers, brokers and loan brokers, appraisers, architects and engineers, who may also provide such services to DTO Management, provided that the selection of the senior administrator of the Hospital shall be handled a Material Decision;
(h) To execute leases, deeds, contracts, rental agreements, construction contracts, sales agreements, and management contracts;
(i) To exercise all rights, powers, and privileges of the Company as lessee with respect to the Hospital or rights held by the Company;
(j) To consent to the modification, renewal, or extension of any obligations to the Company of any Person or of any agreement to which the Company is a party or of which it is a beneficiary;
(k) To execute in accordance furtherance of any or all of the purposes of the Company, any deed, lease, deed of trust, security interest, mortgage, promissory note, xxxx of sale, assignment, contract, or other instrument purporting to purchase or convey or encumber in whole or in part the Equipment or the Hospital or other real or personal property of the Company;
(l) To prepay in whole or in part, refinance, recast, increase, modify, or extend any security interest, deed of trust, or mortgage affecting the Hospital and in connection therewith to execute any extensions or renewals thereof on the Hospital and to grant security interests in any of the Equipment or the Hospital;
(m) To adjust, compromise, settle, or refer to arbitration any claim against or in favor of the Company, and to institute, prosecute, and defend any actions or proceedings relating to the Company, its business, and properties;
(n) To acquire and enter into any contract of insurance which DTO Management deems necessary or appropriate for the protection of the Company and DTO Management, for the conservation of the Company or its assets, or for any purpose beneficial to the Company; however, neither DTO Management nor its Affiliates shall be compensated for providing insurance brokerage services relating to obtaining such insurance;
(o) To prepare or cause to be prepared reports, statements, and other relevant information for distribution to the Members, including annual reports;
(p) To open accounts and deposit and maintain funds in the name of the Company in banks or savings and loan associations; provided, however, that the Company's funds shall not be commingled with the funds of any other Person;
(q) To cause the Company to make or revoke any of the elections referred to in Section 11.1(g). Except 754 of the Internal Revenue Code of 1986 as provided amended or any similar provisions enacted in lieu thereof;
(r) To make all decisions related to generally accepted principles of accounting to be applied on a consistent basis and federal income tax elections;
(s) To possess and exercise, subject to the restrictions contained in this Agreement, decisions any and actions all of the rights, powers and privileges of a manager under the Act;
(t) To execute, acknowledge, and deliver any and all documents or instruments in connection with any or all of the foregoing;
(u) To modify or otherwise improve the Hospital, subject to be taken by the Managers restrictions contained in this Agreement;
(v) To manage, direct, and guide the operation of the Hospital including all necessary acts relating thereto, other than medical or clinical matters which shall be deemed to have been made only upon under the affirmative approval or consent of HHBF and the Investor Manager. In the event a decision, approval or consent is requested direction of the Investor Manager and other agreed upon qualified medical personnel;
(w) To establish minimum insurance requirements for all physicians practicing at the Hospital;
(x) To admit as Members additional investors who have been proposed for Member status by HHBFDTO Management and approved by the Investor Manager, it which approval shall be deemed to have been affirmatively made if given or withheld in the sole and absolute discretion of the Investor Manager fails to respond to any such written request therefor within five Manager;
(5y) days of notice thereof by HHBF, provided however, once the Hospital has opened for business and regularly conducts such business the five (5) day period shall be extended to ten (10) days. Notwithstanding anything in this Agreement to the contrary, all decisions and actions to be made by the Managers with respect to any loan, lease or other similar financing To sell assets of the developmentCompany, construction or operation of the Hospital or the Company's affairs, including without limitation the decisions with respect to incurring any indebtedness or the refinancing thereof, shall be made by HHBF and shall be subject to the restrictions contained in this Agreement;
(z) Subject to the Governing Body and Medical Staff By-Laws, and with the written consent of the Investor Manager, which consent shall not to provide exclusive cardiology and cardiovascular surgery professional service agreements to Investor Members who will be unreasonably withheld; provided, integral to the application of the Company's funds toward the repayment of all or a portion of any financing of the Company in excess of amounts then required to be paid (i.e., voluntary prepayments) shall be made only with the consent of HHBF and the Investor Manager. The following material decisions shall be made by the Managers as determined above, except as otherwise provided:
(a) Hospital Development. HHBF and the Investor Manager shall approve the development plan for the Hospital, the selection of the site for the Hospital, the design of the Hospital and the construction for the successful development of the Hospital.; and
(baa) Capital Improvements Acquire equipment and Expansion. Any renovation and expansion plans and capital equipment expenditures with respect to other related tangible assets appropriate for the Hospital shall be reviewed andoperation of a cardiac rehabilitation service from third parties or from Investor Members based on the fair market value therefor.
Appears in 1 contract
Samples: Operating Agreement (Medcath Inc)
General Authority and Powers of Managers. Except as set forth in those provisions of this Agreement that specifically require the vote, consent, approval or ratification of the Members, the Managers shall have complete authority and exclusive control over the management of the business and affairs of the Company. Subject to the terms and conditions of this Agreement and except as otherwise provided herein, all Material Agreements and Material Decisions with respect to the business and affairs of the Company shall be approved or made by AHH Management and the Investor Manager in accordance with Section 5.16 hereof. No Member has the actual or apparent authority to cause the Company to become bound in any contract, agreement or obligation, and no Member shall take any action purporting to be on behalf of the Company. No Manager shall cause the Company to become bound to any contract, agreement or obligation, and no Manager shall take any other action on behalf of the Company, unless such matter has received the vote, consent, approval or ratification as required pursuant to this Agreement with respect to such matter or except as provided in Section 5.2 below with respect to the authority and actions of HHBFAHH Management. It is acknowledged that all The day-to-day management of the business and affairs of the Company, including those agreements and decisions which are not Material Agreements or Material Decisions, shall be the responsibility of AHH Management, provided, however, decisions relating to medical and clinical practice at the Hospital including, without limitation, establishing standardized clinical pathways shall be made exclusively by the qualified medical personnel of the Hospital in accordance with the Hospital and medical staff bylaws. Subject in all cases to the foregoing, AHH Management shall have the right and the power, if, as, and when it, from time to time, deems necessary or appropriate on behalf of the Company, subject only to the terms and conditions of this Agreement:
(a) To negotiate and execute on behalf of the Company all documents, instruments and agreements reasonably necessary or appropriate to lease, acquire and/or construct the Hospital and/or the real property on which the Hospital is or will be located, and to borrow funds to finance such lease, acquisition and/or construction (it being acknowledged that the Hospital may be an existing building or may be a newly constructed building);
(b) To prepare a budget for the development of the Hospital and thereafter, annual operating budgets;
(c) To acquire the Equipment and enter into loans or other financing arrangements therefor;
(d) To handle the negotiation and execution of all such other agreements regarding the purchase of goods or services for the Hospital; 28
(e) To establish procedures for quality assurance, peer review and granting privileges to physicians with other specialties at the Hospital, subject to the terms of the Hospital and medical staff bylaws to be adopted for the Hospital. It is acknowledged and agreed that the establishment of an internal review board and of standards for physician credentialling matters credentialing shall be handled accomplished pursuant to the medical staff bylaws and appointment procedures of the Hospital in accordance with Section 11.1(g). Except as provided in this Agreement, decisions and actions to be taken by the Managers shall be deemed to have been made only upon the affirmative approval or consent of HHBF and the Investor Manager. In the event a decision, approval or consent is requested of which the Investor Manager by HHBF, it shall be deemed to have been affirmatively made if participate through his membership on the Investor Manager fails to respond to any such written request therefor within five (5) days governing body of notice thereof by HHBF, provided however, once the Hospital has opened for and or the medical staff of the Hospital;
(f) To expend all or portions of the Company's capital and income in furtherance of or relating to the Company's business and regularly conducts purposes, including, but not limited to, payment of all ongoing operational expenses, payment of commissions, organization expenses, professional fees, rental fees, and management fees, and to invest in short-term debt obligations (including, but not limited to, obligations of federal and state governments and their agencies, commercial paper, and certificates of deposit of commercial banks, or savings banks or savings and loan associations) such business the five (5) day period shall be extended to ten (10) days. Notwithstanding anything in this Agreement to the contrary, all decisions and actions to be made by the Managers with respect to any loan, lease or other similar financing of the development, construction Company's funds as are temporarily not required for the development or operation of the Hospital Company and the payment of Company obligations;
(g) To employ or the Company's affairsretain on such terms and for such compensation as AHH Management may reasonably determine, such persons, firms, or corporations as AHH Management may deem advisable, including without limitation qualified medical and other employees necessary or appropriate to operate the decisions with respect Hospital, attorneys, accountants, financial and technical consultants, supervisory managing agents, insurance brokers, brokers and loan brokers, appraisers, architects and engineers, who may also provide such services to incurring any indebtedness or AHH Management, provided that the refinancing thereof, selection of the senior administrator of the Hospital shall be made by HHBF a Material Decision. It is further acknowledged and agreed that the Hospital shall include on the full-time staff a director of managed care/business development, two admission coordinators, two clinical coordinators, ACT program, two research nurses, a vice president-clinical services, a vice president-finance, a vice president-managed care, a catheterization laboratory director, catheterization laboratory nurses and technicians, an operating room director, operating room nurses and technicians, a half-time director of professional relations and referral coordinator and a quarter-time medical writer and director of marketing, the selection, retention, removal and compensation of which personnel shall be subject Material Decisions; Either of the Managers may initiate the process to determine whether or not the employment of any of the above individuals shall be terminated by providing to the other a written report which documents the reasons why the individual's performance is materially deficient and includes a recommended course of action for the Company to take. With the consent of the Investor non-initiating Manager, which consent shall not be unreasonably withheld, the Manager shall cause the Company to take such recommended action; provided, such action shall be consistent with the application of the Company's funds toward the repayment of all or a portion of any financing established disciplinary procedures of the Company with respect to employees, which include any procedures set forth in excess of amounts then required to any employee handbooks or manuals; provided, further the actions must be paid (i.e., voluntary prepayments) shall be made only consistent with the consent obligations of HHBF the Company under any contracts or agreements to which it is a party, including agreements with the individual in question and the Investor Managerwith applicable law. The following material decisions shall be made by the Managers as determined above, except as otherwise provided:29
(ah) Hospital Development. HHBF To execute leases, deeds, contracts, rental agreements, construction contracts, sales agreements, and the Investor Manager shall approve the development plan for the Hospitalmanagement contracts;
(i) To exercise all rights, the selection powers, and privileges of the site for the Hospital, the design of the Hospital and the construction for the development of the Hospital.
(b) Capital Improvements and Expansion. Any renovation and expansion plans and capital equipment expenditures Company as lessee with respect to the Hospital or rights held by the Company;
(j) To consent to the modification, renewal, or extension of any obligations to the Company of any Person or of any agreement to which the Company is a party or of which it is a beneficiary;
(k) To execute in furtherance of any or all of the purposes of the Company, any deed, lease, deed of trust, security interest, mortgage, promissory note, xxxx of sale, assignment, contract, or other instrument purporting to purchase or convey or encumber in whole or in part the Equipment or the Hospital or other real or personal property of the Company;
(l) To prepay in whole or in part, refinance, recast, increase, modify, or extend any security interest, deed of trust, or mortgage affecting the Hospital and in connection therewith to execute any extensions or renewals thereof on the Hospital and to grant security interests in any of the Equipment or the Hospital;
(m) To adjust, compromise, settle, or refer to arbitration any claim against or in favor of the Company, and to institute, prosecute, and defend any actions or proceedings relating to the Company, its business, and properties;
(n) To acquire and enter into any contract of insurance which AHH Management deems necessary or appropriate for the protection of the Company and AHH Management, for the conservation of the Company or its assets, or for any purpose beneficial to the Company; however, neither AHH Management nor its Affiliates shall be reviewed compensated for providing insurance brokerage services relating to obtaining such insurance;
(o) To prepare or cause to be prepared reports, statements, and other relevant information for distribution to the Members, including annual reports;
(p) To open accounts and deposit and maintain funds in the name of the Company in banks or savings and loan associations; provided, however, that the Company's funds shall not be commingled with the funds of any other Person;
(q) To cause the Company to make or revoke any of the elections referred to in Section 754 of the Internal Revenue Code of 1986 as amended or any similar provisions enacted in lieu thereof;
(r) To make all decisions related to generally accepted principles of accounting to be applied on a consistent basis and federal income tax elections;
(s) To possess and exercise, subject to the restrictions contained in this Agreement, any and all of the rights, powers and privileges of a manager under the Act;
(t) To execute, acknowledge, and deliver any and all documents or instruments in connection with any or all of the foregoing;
(u) To modify or otherwise improve the Hospital, subject to the restrictions contained in this Agreement;
(v) To manage, direct, and guide the operation of the Hospital including all necessary acts relating thereto, other than medical or clinical matters which shall be under the direction of the Investor Manager and other agreed upon qualified medical personnel;
(w) To establish minimum insurance requirements for all physicians practicing at the Hospital;
(x) To admit as Members additional investors who have been proposed for Member status by AHH Management and approved by the Investor Manager, which approval shall be given or withheld in the sole and absolute discretion of the Investor Manager; and
(y) To sell assets of the Company, subject to the restrictions contained in this Agreement.
(z) To propose and implement a marketing plan for the Hospital which for the first year of operation shall have a budget of not less than five hundred thousand dollars ($500,000.00) (such marketing plan and related budget shall be a Material Decision); provided, however, that if after the first year of operations the Hospital does not have net income before taxes calculated in accordance with generally accepted accounting principles during any six-month period, such marketing budget may be lowered in future years and in all events will be subject to the agreement and approval of the Managers. It is further acknowledged and agreed that the Investor Manager may elect to be actively involved in the design and implementation of the marketing plan, and that the marketing plan and marketing budget shall be a Material Decision in all years. In the event that substantially all of the assets of MedCath Incorporated ("MedCath") are sold to, or fifty-one percent (51%) or more of the capital stock of MedCath is acquired by, a third party who is not an Affiliate of MedCath but who is, directly or indirectly, an owner or operator of a hospital within thirty (30) miles of the Hospital, then following the closing of such transaction, the Investor Manager shall have the right to manage the day to day business and affairs of the Company in lieu of AHH Management (subject to the other terms of this Agreement) unless the senior management of MedCath after such transaction is and remains for at least one (1) year substantially the same as the senior management of MedCath prior to such transaction.
Appears in 1 contract
Samples: Operating Agreement (Medcath Inc)
