AGREEMENT TO PROVIDE
MANAGEMENT SERVICES
TO
AN ASSISTED LIVING FACILITY
(RICHLAND, WASHINGTON)
This Agreement to Provide Management Services to an Assisted
Living Facility ("Agreement") dated as of February 2, 1998, is
made and entered into by and between RICHLAND ASSISTED, L.L.C., a
Washington limited liability company ("Owner") and ACORN SERVICE
CORPORATION, a Washington corporation ("Manager").
RECITALS
A. Owner is the owner of that certain real property
located at 000 Xxxx Xxxx Xxxxxxxxx in Richland, Washington (the
"Real Property") including the improvements on the Real Property
that constitute the 100 unit assisted living facility commonly
known as "Richland Gardens" and located in Richland, Washington
(the "Facility");
B. Owner desires to engage the services of a person or
entity to manage the Facility on Owner's behalf and to provide
certain consulting services to Owner in connection therewith;
C. Manager is experienced and qualified in the field of
assisted living facility management;
D. Owner has determined that Manager's fee is economical
in light of the range of services which Manager is willing to
provide to Owner; and
E. Manager is willing to operate the Facility on Owner's
behalf and provide consulting services to Owner in connection
therewith, pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises
and the mutual covenants herein contained, IT IS AGREED AS
FOLLOWS:
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1. MANAGEMENT AND CONSULTING RESPONSIBILITIES OF MANAGER.
Owner hereby engages Manager to provide, and Manager hereby
accepts such engagement and agrees to provide, management,
consulting, advisory and supervisory services to Owner in
connection with the operation of the Facility, upon the terms and
conditions set forth in this Agreement. By entering into this
Agreement, Owner does not delegate to Manager any powers, duties,
or responsibilities which Owner is prohibited by law from
delegating. Owner also retains such other authority as shall not
have been expressly delegated to Manager pursuant
to this Agreement. Subject to the foregoing, and commencing on
the effective date of the Certificate of Occupancy (the
"Commencement Date") Manager shall provide the following services
to, or on behalf of Owner:
1.1 OPERATIONAL POLICIES AND FORMS. Manager shall
implement operational policies and procedures and develop such
new policies and procedures as Manager deems necessary to insure
the establishment and maintenance of operational standards
appropriate for the nature of the Facility.
1.2 CHARGES. Manager shall establish the schedules of
recommended charges, including any and all special charges for
services rendered to residents at the Facility. Owner shall have
the right to review and approve the charge schedules established
by Manager.
1.3 INFORMATION. Manager shall develop any informational
material, mass media releases, and other related publicity
materials, which Manager deems necessary for the operation of the
Facility.
1.4 REGULATORY COMPLIANCE. Manager, with the assistance of
Owner if requested by Manager, shall use its best efforts to
obtain and maintain all licenses, permits, qualifications, and
approvals from any applicable governmental or regulatory
authority for the operation of the Facility and to manage the
operations of the Facility in full compliance with all applicable
laws and regulations, and in accordance with all such licenses,
permits, qualifications, and approvals.
1.5 EQUIPMENT AND IMPROVEMENTS. Manager shall advise Owner
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as to equipment and improvements which are needed to maintain or
upgrade the quality of the Facility, to replace obsolete or run-
down equipment, or to correct any deficiencies (including,
without limitation, any survey deficiencies) which may be
observed or cited during the term of this Agreement. Owner shall
review and act upon Manager's recommendations as expeditiously as
possible. Manager shall not be liable for any cost or liability
which Owner may incur in the event Owner disregards Manager's
recommendations. Manager shall, as a Facility Expense (such term
as used in this Agreement shall have the meaning specified in
Paragraph 8.2 below), make all necessary and approved repairs,
replacements and maintenance within the budgetary limits set
forth in the annual capital expenditure budget prepared by
Manager pursuant to Paragraph 1.12. hereof and in a workmanlike
and lien-free manner.
1.6 ACCOUNTING. Manager shall provide home office and
accounting support to the Facility. All accounting procedures
and systems utilized in providing said support shall be in
accordance with the operating capital and cash programs developed
by Manager, which programs shall conform to generally accepted
accounting principles and shall not materially distort income or
loss. If Owner so elects by notice to Manager, Manager shall
prepare or cause to be prepared all tax returns required in
connection with operation of the Facility, including payroll tax
returns
(but excluding Owner's income tax returns, which Manager
shall prepare only if Owner and Manager agree upon separate
compensation to be paid to Manager for preparing such income tax
returns) and, at Owner's sole cost and expense, Manager shall
cause all local, state and federal taxes to be timely paid or
contested, as appropriate. Such taxes shall be deemed to be
Facility Expenses and shall be paid out of the revenues of the
Facility or the working capital for the Facility provided by
Owner. Nothing herein shall preclude Manager from delegating to
a third party a portion of the accounting duties provided for in
this section; provided, that such delegation shall not relieve
Manager from Manager's ultimate liability for the timely and
complete performance of the obligations provided for herein.
1.7 REPORTS. Manager shall prepare and provide to the
Owner any reasonable operational information which may from time
to time be specifically requested by Owner, including any
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information needed to assist Owner in completing its tax returns
and in complying with any reporting obligations imposed by any
mortgagees of the Facility. In addition: (i) within thirty (30)
days after the end of each calendar month, Manager shall provide
Owner with an unaudited balance sheet of the Facility, dated the
last day of such month, and an unaudited statement of income and
expenses for such month relating to the operation of the
Facility; and (ii) within ninety (90) days after the end of the
fiscal year of the Facility, Manager shall provide Owner with
unaudited financial statements including a balance sheet of the
Facility, dated the last day of said fiscal year, and an
unaudited statement of income and expense for the fiscal year
then-ended relating to the operation of the Facility.
1.8 BANK ACCOUNTS. Manager shall open a new checking
account in the name of the Facility ("Facility Checking Account")
and shall deposit in the Facility Checking Account all money
received during the term of this Agreement in the course of the
operation of the Facility; provided, however, that during the
term hereof, withdrawals and payments from the Facility Checking
Account shall be made only on checks signed by a person or
persons authorized by Manager. Owner shall be given notice as to
the identity of said authorized signatories. All Facility
Expenses incurred in the operation of the Facility in accordance
with the terms of the budgets submitted to Owner under Paragraph
1.12 hereof, shall be paid by check drawn on the Facility
Checking Account. Withdrawals from the Facility Checking Account
shall be made first to pay the Base Management Fee (as that term
is defined in Subparagraph 9.2, below), and, thereafter, to pay
Facility Expenses in such order of priority as Manager deems
appropriate to the operation of the Facility. In the event the
revenues generated by the Facility are at any time insufficient
to pay all of the Facility Expenses, Owner shall, within five (5)
days of Owner's receipt of a written demand by Manager, deposit
in the Facility Checking Account sufficient funds to satisfy the
then working capital needs of the Facility.
1.9 PERSONNEL. Manager shall: (i) recruit, employ, train,
promote, direct, discipline, suspend, and discharge Facility
personnel; (ii) establish salary levels, personnel policies, and
employee benefits; and (iii) establish employee performance
standards, all as needed during the term of this Agreement to
ensure the efficient operation of all departments within and
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services offered by the Facility. All Facility personnel shall
be employees of Manager, not Owner, and all salaries, benefits,
payroll taxes and other costs related to Facility personnel
(including, without limitation, computer training and other
employee training and education, including tuition, travel and
other expenses relating thereto if such expenses are incurred
with Owner's approval) shall not be included in the Base
Management Fee, but shall be separately reimbursed by Owner as a
Facility Expense. In addition, the costs and expenses
(including, without limitation, travel expenses) of consultants,
independent contractors or other providers of services engaged by
Manager with Owner's approval shall be separately reimbursed as
Facility Expenses.
1.10 SUPPLIES AND EQUIPMENT. Manager shall purchase, as a
Facility Expense, supplies and non-capital equipment (including,
without limitation, computer hardware and software) needed to
operate the Facility within the budgetary limits set forth in the
annual operating budget prepared by Manager pursuant to
Paragraph 1.12 hereof. In purchasing said supplies and equipment
Manager shall, if possible, take advantage of any national or
group purchasing agreements to which Manager may be a party.
1.11 LEGAL PROCEEDINGS. If approved by Owner, Manager
shall, as a Facility Expense and through its legal counsel,
coordinate all legal matters and proceedings with Owner's
counsel; if Owner does not approve the same, Owner shall
indemnify, protect, defend and hold Manager harmless with respect
to such legal matters and proceedings.
1.12 BUDGETS. The Facility shall be operated on a fiscal
year of January 1 through December 31. Within forty-five (45)
days prior to the start of each fiscal year, Manager shall
prepare and submit to Owner for Owner's review and agreement,
which agreement shall not be unreasonably withheld (i) an annual
operating budget, (ii) an annual capital expenditure budget, and
(iii) an annual cash flow projection. In the event the operating
budget or the capital expenditure budget (or both) have not been
agreed upon prior to the first day of the then-current fiscal
year, beginning in fiscal year 1998, the operating budget or
capital expenditure budget in effect for the prior fiscal year,
as appropriate, shall continue in effect until the new operating
budget or capital expenditure budget, as appropriate, is agreed
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upon by Owner and Manager. Thereafter, any expenditures made
during the year pursuant to said agreed-upon budgets and/or any
expenditures on an item-by-item basis exceeding by no more than
10% the amounts set forth therein for the applicable expense item
(the "Budget Threshold") may be made without Owner's prior
approval. Any unbudgeted expenditures and/or any expenditures in
excess of the Budget Threshold shall be subject to Owner's prior
approval, which approval shall not be unreasonably withheld.
1.13 COLLECTION OF ACCOUNTS. Manager shall issue bills and
collect accounts and monies owed for goods and services furnished
by the Facility, including, but not limited to, enforcing the
rights of Owner and the Facility as creditor under any contract
or in connection with the rendering of any services; provided,
however, that any expenses incurred by Manager shall not be
included in the Base Management Fee, but shall be separately
reimbursed by Owner as a Facility Expense. Notwithstanding any
other provision of this Agreement to the contrary, Manager does
not guaranty the collectability of such accounts or monies and
shall have no liability to Owner for Manager's inability to so
collect such accounts or monies.
1.14 CONSTRUCTION SUPERVISION. Owner and Manager may agree
that Manager shall act as construction supervisor with respect to
any construction work for the Facility or on the Real Property
after the Commencement Date (as defined in Paragraph 1), in which
event Manager will supervise, oversee and administer each and
every aspect of any such improvements and construction work. For
the purposes of this Agreement, "construction work" shall include
any construction, reconstruction or alteration of any
improvements constituting part of the Real Property, but shall
not include usual maintenance and repairs made to the Facility or
the Real Property. Without limitation of the foregoing, if Owner
and Manager agree that Manager shall act as construction
supervisor, and subject to Owner's approval in each instance,
Manager will: (a) negotiate contracts for architectural, design,
engineering and construction services; (b) secure any and all
necessary consents and approvals; (c) oversee the administration
of construction contracts; and (d) act as project manager with
respect to the construction work.
1.15 EXTRAORDINARY COSTS. Except as otherwise specifically
provided herein, all extraordinary costs incurred by Manager with
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respect to the Facility shall be separately reimbursed as
Facility Expenses (and not included in the Base Management Fee)
after first having been approved by Owner.
2. INSURANCE.
Upon request, Manager, at Owner's sole cost and expense,
shall arrange for and maintain all necessary and proper hazard
insurance covering the Facility, the furniture, fixtures, and
equipment situated thereon, and all necessary and proper
malpractice and public liability insurance for Owner's protection
and for the protection of Owner's officers, agents and employees.
Until such a request is made and/or in the event Manager is
unable to secure insurance coverage for the Facility for any
reason whatsoever, Owner shall be responsible for obtaining and
maintaining said insurance. In addition, Manager shall provide
employee health and worker's compensation insurance for all
Manager employees at the Facility in accordance with Manager's
policies therefor, and the costs thereof shall not be included in
the Base Management Fee, but shall be separately reimbursed by
Owner as a Facility Expense. Manager shall, at Manager's sole
cost and expense, arrange for and maintain all necessary and
proper malpractice and public liability insurance for the
protection of Manager, and Manager's officers, agents, and
employees. Any insurance provided by Owner pursuant to this
Paragraph 2 shall comply with the requirements of any mortgage or
deed of trust encumbering the Facility, and any insurance
provided by Manager pursuant to this Paragraph 2 shall comply
with such requirements provided that Owner shall have provided
Manager with a copy of such mortgage or deed of trust.
3. PROPRIETARY INTEREST.
The systems, methods, procedures, and controls employed by
Manager and any written materials or brochures developed by
Manager to document the same are, and shall remain, the property
of Manager and are not, at any time during or after the term of
this Agreement, to be utilized, distributed, copied, or otherwise
employed or acquired by Owner, except as authorized by Manager.
4. TERM AND TERMINATION OF AGREEMENT.
4.1 TERM. The term of this Agreement ("Term") shall
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commence on the Commencement Date and expire on the fifth (5th)
anniversary of the Commencement Date; provided, however, that the
Term shall be extended automatically for successive two (2) year
periods unless terminated prior to expiration of the Term (as the
same may have be extended) pursuant to this Paragraph 4.
4.2 TERMINATION. The Term (as the same may be have been
extended ) may be terminated by either Manager or Owner
(a) at any time, with cause, by giving notice of
termination not less than thirty (30) days prior to the
effective date of such termination;
(b) if fifty percent (50%) or more of the Facility is
either (i) damaged or destroyed or (ii) taken by
condemnation proceedings or otherwise, whether or not
Owner elects to rebuild or repair the Facility, by
giving notice of termination not less than ten (10)
days prior to the effective date of such termination;
(c) immediately upon the occurrence of an Event of Default
by the other party (as defined in Paragraph 5, below),
by giving notice of termination, effective the date of
receipt (or deemed receipt) by the defaulting party of
such notice of termination.
4.3 EFFECT OF TERMINATION. In the event of a termination of
Term pursuant to Subparagraphs 4.2(a) or 4.2(b), above, upon the
effective date of such termination, neither party shall have any
further obligations whatsoever under this Agreement; provided,
however, that Manager shall be entitled to receive immediate
payment of all amounts theretofore unpaid by Owner but earned by
Manager as of the effective date of such termination. In the
event of a termination of the Term pursuant to
Subparagraph 4.2(c), above, except as expressly provided in
Paragraph 5.3, below, neither party shall have any further
obligation whatsoever under this Agreement; provided, however,
that Manager shall be entitled to receive immediate payment of
all amounts theretofore unpaid by Owner but earned by Manager as
of the effective date of such termination. In the event that
Owner desires Manager to leave any equipment owned by Manager at
the Facility upon such termination, Owner shall pay to Manager
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the fair market value of such equipment to be left at the
Facility and Manager shall transfer title thereto to Owner upon
such payment.
5. DEFAULT, REMEDIES UPON DEFAULT.
5.1 MANAGER'S EVENTS OF DEFAULT. With respect to Manager,
it shall be an "Event of Default" under this Agreement:
(a) If Manager shall fail to keep, observe, or perform
any material agreement, term, or provision of this
Agreement, and such default shall continue for a
period of thirty (30) days after Manager's receipt
of notice of such default from Owner, which
notice shall specify the event or events
constituting the default; or
(b) If (i) Manager shall: (A) apply for, or consent
to, the appointment of a receiver, trustee, or
liquidator of Manager of all or a substantial part
of Manager's assets, (B) file a voluntary petition
in bankruptcy, or admit in writing Manager's
inability to pay Manager's debts as they become
due, (C) make a general assignment for the benefit
of creditors, or (D) file a petition or an answer
seeking reorganization or arrangement with
creditors or taking advantage of any insolvency
law; or (ii) an order, judgment or decree shall be
entered by a court of competent jurisdiction, on
the application of a creditor (A) adjudicating
Manager as bankrupt or insolvent, (B) approving a
petition seeking reorganization of Manager, or (C)
appointing a receiver, trustee, or liquidator for
Manager or for all or a substantial part of
Manager's assets.
5.2 OWNER'S EVENTS OF DEFAULT. With respect to Owner, it
shall be an Event of Default under this Agreement:
(a) If Owner shall fail to make or cause to be made
any payment to Manager required to be made
hereunder (other than Owner's obligation, pursuant
to Paragraph 1.8, above, to deposit working
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capital into the Facility Checking Account, which
circumstance shall be handled in accordance with
Subparagraph 5.2(b), below), and such failure
shall continue for a period of thirty (30) days;
(b) If Owner shall fail to keep, observe, or perform
any material agreement, term, or provision of this
Agreement and such default shall continue for a
period of thirty (30) days after Owner's receipt
of notice of such default from Manager, which
notice shall specify an event or events
constituting the default; provided, however, that
in the case of Owner's failure to provide,
pursuant to Paragraph 1.8, above, necessary
working capital upon demand by Manager, it shall
be deemed to be an Event of Default hereunder if
the such necessary working capital is not
deposited in the Facility Checking Account within
ten (10) days of Manager's initial demand therefor
without any further notice from Manager being
required;
(c) If Owner shall fail to make payments, or keep any
covenants, owing to any third party which are
beyond the control of Manager to make or keep, and
which would cause Owner to lose possession of the
Facility or any personal property required to
operate the Facility in the normal course of
operation; or
(d) If: (i) Owner shall (A) be dissolved, (B) apply
for or consent to the appointment of a receiver,
trustee or liquidator for Owner or for all or a
substantial part of Owner's assets, (C) file a
voluntary petition in bankruptcy or admit in
writing its inability to pay Owner's debts as they
become due, (D) make a general assignment for the
benefit or creditors, or (E) file a petition or an
answer seeking reorganization or arrangement with
creditors or taking advantage of any insolvency
law; or (ii) an order, judgment or decree shall be
entered by a court of competent jurisdiction, on
the application of a creditor (A) adjudicating
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Owner as bankrupt or insolvent, (B) approving a
petition seeking reorganization of Owner, or (C)
appointing a receiver, trustee or liquidator for
Owner or of all or a substantial part of Owner's
assets.
5.3 REMEDIES UPON DEFAULT. In the event of an Event of
Default by a party, the non-defaulting party shall have, in
addition to the right to terminate the Term pursuant to
Subparagraph 4.2(c), above, all rights and remedies available to
such non-defaulting party at law or in equity.
6. OWNER'S RIGHT TO INSPECT FACILITY/BOOKS AND RECORDS.
During the Term, Owner shall have the right, upon not less
than forty-eight (48) hours prior notice to Manager and at
reasonable times during normal business hours, to inspect the
Facility and to inspect and/or audit all books and records
pertaining to the operation thereof.
7. FACILITY OPERATIONS.
7.1 NO GUARANTEE OF PROFITABILITY. Manager does not
guarantee, and shall not be
construed to have guaranteed, to Owner or any third party
(including any mortgagee) that operation of the Facility will be
profitable, but Manager shall use Manager's commercially
reasonable, diligent, and good faith efforts to operate the
Facility in as cost-efficient and profitable a manner as possible
in light of all of the circumstances then-existing.
7.2 STANDARD OF PERFORMANCE. In performing Manager's
obligations under this Agreement, Manager shall use Manager's
commercially reasonable, diligent, and good faith efforts, and
act with professionalism, in undertaking management of the
Facility, all in accordance with accepted and prevailing
standards of health care in the general location of the Facility
and with the policies adopted by, and resources available to, the
Facility.
7.3 FORCE MAJEURE. Manager will not be deemed to be in
violation of this Management Agreement if Manager is prevented
from performing any of Manager's obligations hereunder for any
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reason beyond Manager's reasonable control, including, without
limitation: strikes, sick-outs, or labor disputes; material or
supply shortages; war, insurrection or civil unrest; fire,
earthquakes, severe weather, flooding; acts of God; Owner's
failure to perform Owner obligations under this Agreement; or any
law, statute, regulation, ordinance, or rule of any federal,
state or local government or agency thereof, or any order,
decree, or judgment of any court with jurisdiction.
8. WITHDRAWAL OF FUNDS BY OWNER; MINIMUM BANK BALANCE.
8.1 WITHDRAWAL BY OWNER. From time to time, Owner may
withdraw the then-accumulated operating cash surplus (as
determined by Manager) from the Facility Checking Account subject
to the right of Manager to restrict withdrawal by Owner of any
Facility funds in accordance with the provisions of Paragraph
8.2, below.
8.2. MINIMUM CASH BALANCE. At all times (subject to
Manager's right, pursuant to Paragraph 1.8, above, to demand
working capital from Owner in the event of a shortfall), Manager
shall maintain a minimum cash balance in the Facility Checking
Account equal to the sum of:
(a) All costs and expenses associated with the
ownership or operation of the Facility (each a
"Facility Expense" and any two or more or all the
"Facility Expenses"), including, without
limitation, any principal and interest payments
due in connection with any loan secured by a
mortgage on the Facility, payroll, insurance,
supplies, services, taxes (but excluding all
federal, state, and local income taxes assessed
against Owner), and the Base Management Fee, all
of which Facility Expenses are unpaid but will
become due and payable within the ensuing
forty-five (45) days; plus
(b) An amount deemed necessary by Manager to be adequate for
unanticipated contingencies, which amount initially shall be
$5,000 and which amount
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shall be adjusted as reasonably determined by
Manager.
9. MANAGEMENT FEES.
9.1 CONSTRUCTION SUPERVISION FEE. For any services
performed by Manager pursuant to Paragraph 1.14, above, Manager
shall receive a construction supervision fee equal to five
percent (5%)of the total amount of construction costs approved by
Owner, due payable concurrently with the applicable payments to
the construction contractor(s) and materialmen.
9.2 BASE MANAGEMENT FEE. Throughout the term of this
Agreement, Manager shall receive a monthly fee ("Base Management
Fee") equal to the greater of: i) six percent (6%) of the gross
revenues generated for the prior month by the Facility; or ii)
$5,000, payable on or before the 10th day of each month. For
purposes hereof, "gross revenues" shall mean all revenues
generated by the Facility, but shall specifically exclude the
proceeds from the sale of any Facility equipment and any
insurance and condemnation proceeds.
9.3 PRORATION OF FEES. If the services of Manager commence
or terminate for any reason (including, without limitation, those
set forth in Paragraph 5 hereof) other than on the first day of
any calendar month, the Base Management Fee for such partial
month shall be prorated based upon the number of days for which
services are actually rendered by Manager during such partial
month.
9.4 PAYMENT OF FEES. Notwithstanding any other provision
of this Agreement to the contrary, the Base Management Fee shall
be disbursed by Manager to itself out of the Facility Checking
Account Prior To the payment of any other Facility Expenses and
Prior To the repayment to Owner of any working capital deposits
made by Owner pursuant to the terms hereof (without limiting the
generality of the foregoing, the Base Management Fee shall be
paid to Manager on a priority basis, and Manager may disburse the
Base Management Fee to itself without regard for the minimum cash
balance requirement, or the need to demand additional working
capital from Owner, pursuant to Paragraph 8.2, above).
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10. INDEMNIFICATION.
10.1 BY MANAGER. Manager shall indemnify, defend, and hold
harmless Owner from and against any loss incurred by or damage to
Owner where such loss or damage results from the negligent acts
or omissions or the willful misconduct of Manager in performing
Manager's obligations under this Agreement.
10.2 BY OWNER. Owner shall indemnify, defend and hold
harmless Manager from and against any loss incurred by or damage
to Manager where such loss or damage results from the negligent
act or omissions or the willful misconduct of Owner in performing
Owner's obligations under the Agreement.
10.3 SURVIVAL OF INDEMNIFICATION OBLIGATIONS.
Notwithstanding any other provision of this Agreement to the
contrary (including, without limitation, Paragraph 4.3, above),
each party's obligation to indemnify, defend and hold harmless
the other party shall survive the termination of the Term and
this Agreement with respect to the negligent acts or omissions or
willful misconduct of the indemnifying party prior to the
effective date of such termination.
11. RIGHT OF FIRST REFUSAL
In the event Owner desires to sell, convey or lease
("Transfer") the Facility prior to the expiration of the Term,
and Owner receives a bona fide offer to effect a Transfer of the
Facility from a third party capable of performing such offer
("Transfer Offer") which Owner desires to accept, Owner shall
first give written notice of such Transfer Offer to Manager.
Such notice shall include all of the material terms and
conditions of the Transfer Offer (e.g., purchase price or lease
rate, terms of payments, closing date, xxxxxxx money or other
deposits, documents required for Closing, options to purchase).
For a period of thirty (30) days after Manager's receipt of such
notice, Manager shall have the right to elect to acquire the
Facility or interest therein upon the same terms and conditions
as are contained in the Transfer Offer, which election shall be
made by giving written notice thereof to Owner within such thirty
(30) day period. If Owner does not timely receive Manager's
written notice of Manager's election to acquire the Facility or
interest therein on the terms and conditions of the Transfer
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Offer, Owner shall have the right to accept such Transfer Offer
and Transfer the Facility to such third party in accordance with
the terms of the Transfer Offer free and clear of Manager's right
of first refusal hereunder. Notwithstanding any other provision
of this Paragraph 11, in no event shall Owner be entitled to
Transfer the Facility to any third party on terms or conditions
materially different from those set out in the notice of Transfer
Offer provided by Owner to Manager, unless Owner has given
Manager written notice of such materially different terms and
conditions and provided Manager an additional thirty (30) days in
which to elect to effect a Transfer on such materially different
terms and conditions.
12. MISCELLANEOUS
12.1 NOTICES. All notices required or permitted pursuant to
this Agreement: (a) shall be given in writing; and (b) delivered
by (i) hand delivery, (ii) registered or certified mail, postage
prepaid, (iii) nationally recognized courier guaranteeing next-
business day delivery), or (iv) facsimile transmission (with
receipt confirmed telephonically by the recipient). Notice shall
be delivered or mailed to the parties at the following addresses
or at such other places as either party shall designate by giving
notice in accordance with this Paragraph 12.1.
To Manager: Acorn Service Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxx Xxxxx
To Owner: Richland Assisted, L.L.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxx Xxxxx
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12.2 ASSIGNMENT. Except as otherwise provided in Paragraph
1.6, above, this Agreement shall not be assigned by either party
without the prior written consent of the non-assigning party,
which consent shall not be unreasonably withheld, conditioned,
delayed.
12.3 RELATIONSHIP OF THE PARTIES. The relationship of the
parties shall be that of Owner and independent contractor and all
acts performed by Manager during the term hereof as Manager of
the Facility shall be deemed to be performed by Manager in
Manager's capacity as an independent contractor. Nothing
contained in this Agreement is intended to, or shall be construed
to, give rise to or create a partnership or joint venture or
lease between Owner, and Owner's successors and assigns on the
one hand, and Manager, and Manager's successors and assigns on
the other hand.
12.4 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties and shall be binding upon and inure
to the benefit of their successors and, to the extent permitted
hereby, their assigns, and shall be construed in accordance with
the laws of the State of Washington. This Agreement may not be
modified or amended except by written instrument signed by both
of the parties hereto.
12.5 HEADINGS/CAPTIONS. The headings and captions used in
this Agreement are for convenience of reference only and shall
not be construed in any manner to limit or modify any of the
provisions hereof.
12.6 ATTORNEYS' FEES. In the event either party brings an
action to enforce or interpret this Agreement, the prevailing
party in such action shall be entitled to recover from the other
party all costs incurred in connection therewith, including
reasonable attorneys' fees incurred in the preparation, conduct,
and/or settlement thereof.
12.7 SEVERABILITY. In the event one or more of the
provisions contained in this Agreement is deemed to be invalid,
illegal, or unenforceable in any respect under applicable law,
the validity, legality, and enforceability of the remaining
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provisions hereof shall not in any way be impaired thereby.
12.8 CUMULATIVE; NO WAIVER. No right or remedy herein
conferred upon or reserved to either party is intended to be
exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right
or remedy given hereunder, or now or hereafter legally existing
upon the occurrence of an Event of Default. The failure of
either party to insist at any time upon the strict observance or
performance of any of the provisions of this Agreement or to
exercise any right or remedy as provided in this Agreement shall
not impair any such right or remedy or be construed as a waiver
or relinquishment thereof with respect to subsequent Event of
Default. Each and every right and remedy given by this Agreement
to a party may be exercised from time to time and as often as may
be deemed expedient by such party.
12.9 AUTHORIZATION FOR AGREEMENT. The execution and
performance of this Agreement by Owner and Manager have been duly
authorized by all necessary laws, resolutions or corporate
action, and this Agreement constitutes the valid, binding and
enforceable obligations of Owner and Manager, respectively, in
accordance with its terms.
12.10 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original
but collectively shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties have hereto caused this
Agreement to be duly executed, as of the day and year first above
written.
OWNER: RICHLAND ASSISTED, L.L.C.,
a Washington limited liability
company
By: /s/: Xxxxxx X. Xxxx
Its: Manager
MANAGER: ACORN SERVICE CORPORATION,
a Washington corporation
By: /s/: Xxxxx X. Xxxxx
Its: Vice President of Finance
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