ASSIGNMENT AGREEMENT
(Westfield Court, Connecticut)
THIS ASSIGNMENT AGREEMENT (the "Agreement") is entered into as of the 6th
day of June, 1996, by and between CCC of Connecticut, Inc. ("Assignor") and
CareMatrix of Massachusetts, Inc. ("Assignee").
WITNESSETH:
WHEREAS, pursuant to that certain Assignment and Assumption Agreement dated
as of June 23, 1994, by and between Mediplex Management Inc. ("Mediplex") and
Assignor, Mediplex assigned all of its right, title and interest under a certain
Management Agreement dated as of September 12, 1991, by and between B&C
Associates, a Connecticut general partnership and Mediplex (the "Management
Agreement"), a copy of which is attached hereto as Exhibit A, relating to
management services provided at the congregate care residential facility located
at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx.
WHEREAS, Assignor desires to assign its rights and obligations under the
Management Agreement to Assignee and Assignee desires to assume such rights and
obligations.
NOW THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby grants, bargains, sells, assigns and transfers to
Assignee all of Assignor's right, title and interest in, and all contractual and
other rights under the Management Agreement.
2. Assignee hereby accepts this assignment and hereby agrees to assume all
of Assignor's rights, title, interest, duties and obligations under the
Management Agreement.
3. This Agreement may be executed by facsimile and in counterparts, each of
which shall constitute an original document.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ASSIGNOR:
CCC OF CONNECTICUT, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title:
ASSIGNEE:
CAREMATRIX OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title:
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement is made this 23rd day of June, 1994, by and between Mediplex
Management, Inc., a Massachusetts corporation ("Management") and CCC of
Connecticut, Inc. ("CCC").
Reference is made to the Management Agreement dated as of September 12,
1991, by and between B&G Associates, a Connecticut general partnership (the
"Company") and Management (the "Management Agreement"), pursuant to which
Management has agreed to provide management services for a congregate care
residential facility at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Facility").
Capitalized terms used herein and not otherwise defined shall have the meaning
ascribed thereto in the Management Agreement.
WHEREAS, the parent company of Management, The Mediplex Group, Inc.
("Mediplex"), has entered into an Agreement and Plan of Merger with Sun
Healthcare Group, Inc. ("Sun"), Sun Acquisition Corporation ("SAC"), Xxxxxxx X.
Xxxxxx and Xxxxxx Xxxxxx, pursuant to which Mediplex will be merged with Sun's
wholly-owned subsidiary, SAC, with Mediplex as the surviving entity (the "Merger
Transaction"); and
WHEREAS, Sun has acknowledged that the operation of a congregate care
residential facility such as the Facility is not consistent with Sun's business
plan; and
WHEREAS, the Company and Management agree that it is in their mutual best
interest to assign the Management Agreement to CCC upon the consummation of the
Merger Transaction.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration paid and received, the parties agree as follows:
1. Assignment: Effective as of June 23, 1994 (the "Effective Date"),
Management hereby grants, bargains, sells, assigns and transfers to CCC all of
Management's right, title and interest in and to the Management Agreement.
2. Assumption: As of the Effective Date, CCC hereby accepts the assignment
of the Management Agreement and agrees to assume all obligations and liabilities
arising under the Management Agreement from and after the Effective Date.
3. Management Fee: The Management Fee due under the Management Agreement
shall be pro-rated such that Management shall receive the portion of any payment
due which is allocable to the period of time prior to the Effective Date and CCC
shall receive the portion of any payment due which is allocable to the period of
time from and after the Effective Date.
4. Indemnification By Management: Management shall indemnify, defend and
hold CCC harmless from and against:
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(a) Any and all obligations relating to or arising out of the
Management Agreement which exist as of the Effective Date; and
(b) Any and all actions, suits, proceedings, demands, assessments,
judgments, reasonable costs and other reasonable expenses, including but
not limited to, reasonable attorneys' fees, incident to the foregoing.
For purposes of this section, an obligations shall be deemed to "exist" as
of the Effective Date if it relates to events which occurred prior to the
Effective Date even if it is not asserted until after the Effective Date.
5. Indemnification BY CCC: CCC shall indemnify, defend and hold Management
harmless from and against:
(a) Any and all obligations relating to or arising out of the
Management Agreement which relate to the period from and after the
Effective Date; and
(b) Any and all actions, suits, proceedings, demands, assessments,
judgments, reasonable costs and other reasonable expenses, including but
not limited to, reasonable attorneys' fees, incident to the foregoing.
6. Cooperation: Management agrees to cooperate with CCC from and after the
Effective Date to ensure a smooth transition of the management of the Facility
which cooperation shall include, without limitation, turning over all books,
records and resident accounts to CCC as of the Effective Date. CCC shall
cooperate with Management from and after the Effective Date in providing access
to books and records needed by Management relating to the prior provision of
services by Management under the Management Agreement or to Management's
indemnification obligations hereunder .
EXECUTED to take effect this 23rd day of June, 1994.
WITNESS:
MEDIPLEX MANAGEMENT, INC.
/s/ [Illegible] By /s/ [Illegible]
------------------------ --------------------
Its: Assistant Clerk
CCC OF CONNECTICUT, INC.
/s/ [Illegible] By /s/ [Illegible]
------------------------ --------------------
Its: Vice Pres.
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CONSENT AND RELEASE
The undersigned hereby consents to the assignment of the Management
Agreement by Management to CCC and hereby releases and discharges Management of
and from any claim, loss, liability or damage it has or may have against
Management arising under or out of any matters pertaining to the Management
Agreement which relate to the acts or omissions of CCC on or after the Effective
Date.
EXECUTED under seal as of this 23rd day of June, 1994.
WITNESS: B&G ASSOCIATES
By: A.M.A. CONGREGATE
MANAGEMENT CORP.
Its General Partner
/s/ [Illegible] By /s/ [Illegible]
------------------------ --------------------
Its: Secretary
By: ET TOWER ASSOCIATES L.P.
Its General Partner
/s/ [Illegible] By /s/ [Illegible]
------------------------ --------------------
Its: __________________
MANAGEMENT AGREEMENT
BETWEEN
B & G ASSOCIATES
AND
MEDIPLEX MANAGEMENT, INC.
TABLE OF CONTENTS
ARTICLE I - Appointment and Duties of Management Company
Section 1.1 - Appointment of Management Company
Section 1.2 - General Description of Duties
Section 1.3 - Specific Duties
Section 1.4 - Ultimate Responsibility
Section 1.5 - Access
Section 1.6 - Other Powers
Section 1.7 - Standards of Care
Section 1.8 - Indemnity
Article II - Period of Appointment
Section 2.1 - Term
Section 2.2 - Termination
Section 2.3 - Accounting
ARTICLE III - Compensation
Section 3.1 - Operating Expenses
Section 3.2 - Base Management Fees
Section 3.3 - Payment
Section 3.4 - Gross Revenues
ARTICLE V - Insurance
Section 4.1 - Facility Insurance
ARTICLE V - Concluding Provisions
Section 5.1 - Prior Agreements
Section 5.2 - Amendments
Section 5.3 - Joint Efforts
Section 5.4 - Assignment
Section 5.5 - Notices
Section 5.6 - Captions
Section 5.7 - Governing Law
MANAGEMENT AGREEMENT
This Agreement ("Agreement") is by and between B&G Associates, a
Connecticut general partnership located at 00 Xxxxx Xxxxxx, Xxxxxxxx, XX
("Company") and Mediplex Management, Inc., a Massachusetts corporation, with
offices at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, 00000 ("Management").
STATEMENT OF FACTS:
1. Company is the owner of a congregate care residential facility at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Facility").
2. Company desires to engage Management to provide employees for the
Facility and to provide advisory, supportive, consultive and administrative
services and expertise in order to increase the efficiency and effectiveness of
the operation of the Facility.
3. Company has carefully reviewed the qualifications of Management and
finds that its assistance in business related functions is beneficial and
necessary for Company to carry out its prime purpose to operate the Facility in
a manner designed to create the most effective, helpful, and appropriate
programs for residents at the Facility and to achieve the most effective and
productive operation of the Facility.
Now, therefore, for good and valuable consideration paid and received, the
parties agree as follows:
ARTICLE I
Appointment and Duties of Management
Section 1.1 - Appointment of Management. The Company hereby appoints
Management to carry out the duties described in this Agreement subject to the
direction of the Company and in accordance with the budgets and policies of the
Company, for that period of time and for such compensation as is more
particularly described below.
Section 1.2 - General Description of Duties.
(a) Management will supervise and oversee the day to day operations of the
Facility and in connection therewith will provide the Company with advisory,
supportive, consultive and administrative services, including services in
connection with the areas of: dietary; plant maintenance; resident care and
quality assurance; administrative; accounting; purchasing; and data processing.
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(b) Management shall perform all services in compliance with the standards,
rules and regulations, if any of the agencies of the State of Connecticut having
authority and jurisdiction relating to the Facility, and applicable federal
laws.
(c) All employees of the Facility (except for the employees of unrelated
entities providing separate contract services to the Facility and except for the
Executive Director of the Facility) shall be employees of an entity (herein the
"Employer"), which is unrelated to either Management, the Company or any of its
partners, which entity is mutually acceptable to the Company and Management.
Company and Management hereby acknowledge that Apple Management Services
Company, a Connecticut corporation, is acceptable as Employer.
(d) The Executive Director of the Facility shall be an employee of the
Company.
Section 1.3 - Specific Duties. In addition to the general duties set forth
above and the other obligations listed in this Agreement, Management shall have
the following specific responsibilities which shall be carried out in
cooperation with the Company:
(a) Resident Care and Quality Assurance:
(i) To assure adequate response to resident complaints concerning
conditions at the Facility and to assist in the establishment and
development of written policies and procedures to assure
protection, comfort and safety of residents;
(ii) To make recommendations concerning, and assist in the
establishment and maintenance of standards for quality control
relating to the services provided to residents; and
(iii) To develop and implement a plan for staff training and
development and to submit such evaluation reports relating to
staff personnel that may be requested by the Company.
(b) Dietary:
(i) To review menus, practices and procedures; and
(ii) To recommend, develop, inaugurate and carry out practices and
procedures with respect to purchasing and dietary control
consistent with appropriate standards health care, modern
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business and management techniques, and as required by applicable
City, State and Federal agencies.
(c) Plant Maintenance:
(i) To monitor and review practices and procedures of the
maintenance, engineering, security, housekeeping and related
service and personnel;
(ii) To implement, maintain and supervise Facility inspections
(interior and exterior) and a preventive maintenance program
consistent with appropriate standards of modern business and
management techniques; and
(iii) To submit periodic written reports to Company concerning current
inventories of physical plant, and personal property and supplies
including recommendations for periodic maintenance and schedules
for repair.
(d) Administrative:
(i) To review and make recommendations concerning personnel and
admissions policies;
(ii) To develop effective programs relating to public relations, labor
relations and marketing and advertising;
(iii) Subject to the Company's approval, to establish guidelines for
applications for occupancy of the Facility. Subject to the
guidelines approved by the Company, Management shall be
responsible for the admission of qualified residents to the
Facility, but Company shall have final approval of any admission.
(iv) To make a written report, at least semi-annually, with
recommendations, advising the Company of any new or modified
programs, policies or procedures that should be initiated in
order to best conform to the regulations or policies of any
agency having authority or jurisdiction over the operation of the
Facility or the conduct of its affairs or which Management
recommends as improvements in the overall service being provided
to residents. Management will provide notice to
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Company of any changes to government regulations within thirty
(30) days of Manager becoming aware of same;
(v) To review utilization of independent contractors who provide
services to the Facility, including without limitation, the
Employer, to examine usage of utilities, supplies and services,
and make pertinent recommendations concerning the same; and
(vi) To assist in the negotiation of employee contracts and to provide
advice in connection with wages and benefits to be offered to
employees.
(e) Accounting:
(i) To prepare monthly financial, financial analyses and statements
and budgets.
(ii) To cooperate with the Company's outside accountants in the
preparation by said accountants of tax returns and related tax
matters, including employee withholdings and FICA withholdings
and annual audited financial statements, all at the Company's
expense. Such outside accountants shall be designated by the
Company and until otherwise designated shall be Xxxxxx, Xxxx &
Xxxxxx;
(iii) Not less than ninety (90) days prior to the commencement of each
fiscal year to prepare a detailed operational budget for the
Facility for the approval of the Company. The budget shall be
prepared in a manner consistent with reports and records which
Company is required to submit to state and federal agencies if
any. It is understood that budgets are only estimates as to
future results and that budget overruns may occur from time to
time. The Company, and not Management, shall be responsible for
any such budget overruns. Management shall use its best efforts
to promptly notify the Company of any variance from a budget item
greater than 10%;
(iv) To prepare and maintain an ongoing comparison between budgeted
and actual income and expenses on both a monthly and
fiscal-year-to-date basis;
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(v) Consistent with a budget approved by the Company, Management
shall verify, approve for payment and sign checks for any proper
obligations of Company. No check shall be issued unless the
expenditure is consistent with the Facility's budget and the
current projection of monthly expenses. No expenses from capital
improvements not in the current budget or in excess of $50,000
shall be incurred without the prior written approval of the
Company. No check in excess of $2,500 shall be signed by any
Facility staff without consent of Company; and
(v) To maintain, at Company's expense, full books of accounts with
correct entries for all receipts and expenditures. Permanent
books, records, and documents shall be made available for
Company's inspection upon reasonable notice.
(f) Purchasing:
(i) To review the purchasing standards, procedures and policies, and
to develop, implement, and maintain, subject to Company's
approval, an effective purchasing system for medical and food
supplies, equipment, appliances, furnishings, other materials,
and uniforms, and ordering and coordination of service calls
necessary to the proper conduct of the Facility;
(ii) To assist in negotiating contracts for the purchase of items
listed in Section 1.3(f)(i), and service contracts; and
(iii) To review with the appropriate staff personnel, methods of
replacing obsolete equipment.
(g) Data Processing:
(i) To maintain the data processing and payroll processing systems,
and procedures for keeping records for accounts payable and
receivable; and
(ii) To establish and supervise adequate systems for recording the
receipt and disbursement of all funds; and
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(h) In all areas;
(i) [ILLEGIBLE LINE OF TEXT] policies, purposes and regulations of
state and federal agencies, bodies, programs and concepts;
(ii) To provide a representative of Management at or available to the
Facility during normal business hours; and
(iii) To act consistent with the purposes, powers and philosophy of
Company.
Section 1.4 - Ultimate Responsibility. The Company shall have ultimate
responsibility and authority for the overall operation and management of the
Facility, and to establish and maintain a written statement setting forth its
philosophy and policies. All actions of Management are subject to review by the
Company. Notwithstanding any other provision in this contract, the Company
remains responsible for ensuring that any service provided pursuant to this
contract complies with all pertinent provisions of federal, state and local
statutes, rules and regulations. Management shall not hire or discharge any
employee of Company.
Section 1.5 - Access. Management shall provide all information required by
any governmental agency having jurisdiction over Company and cooperate with such
agency in carrying out inspections and investigations.
Section 1.6 - Other Powers. The powers not specifically provided to
Management in this Agreement or by consent of the Company, shall remain with the
Company.
Section 1.7 - Standard of Care. Management is an independent contractor and
is not to be considered a partner, joint venturer or other type of principal
with respect to ownership of any portion of or interest in the Facility.
Section 1.8 - Indemnity.
(a) The Company shall indemnify Management against, and hold Management
harmless from, any and all claims, actions, suits, proceedings, costs,
expenses, damages, and liabilities, including reasonable attorney's
fees, arising out of or connected with, or resulting from the
performance in good faith by Management of its obligations hereunder,
excluding, however, any liability resulting from the gross negligence
or willful misconduct of Management, its agents or employees.
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(b) Management shall indemnify the Company and hold the Company harmless
from any and all claims, actions, suits, proceedings, costs, expenses,
damages and liabilities, including reasonable attorney's fees, arising
out of or in connection with or resulting from the performance in good
faith by the Company of its obligations hereunder, excluding, however,
any liability resulting from the gross negligence or willful
misconduct of the Company.
ARTICLE II
Period of Appointment
Section 2.1 - Term. This Agreement shall commence on September 6, 1991 and
remain in effect until September 30, 1996. Thereafter, it shall renew
automatically for three successive five year periods unless terminated by
written notice by either party given at least 180 days prior to the end of the
term or renewal term or unless terminated pursuant to Section 2.2.
Section 2.2 - Termination. In addition to the foregoing, this Agreement may
be terminated upon the occurrence of any of the following events:
(a) The unanimous written agreement of the Company and Management; and
(b) For cause, by either party upon thirty (30) days' written notice.
"Cause" shall mean if:
(i) Either party files a petition in bankruptcy or a petition to take
advantage of any insolvency act, makes an assignment for the
benefit of its creditors, consents to the appointment of a
receiver or files a petition for reorganization or is adjudicated
a bankrupt or is liquidated or dissolved, or shall begin
proceedings toward a liquidation or dissolution and the
involuntary petition or filing shall not be discharged within
sixty (60) days of the date of such filing; or
(ii) The Company no longer owns the Facility.
(c) In addition to the foregoing, a non-defaulting party may terminate
this Agreement in the event of a breach of this Agreement by the other
party:
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(i) Upon thirty (30) days written notice to the defaulting party in
the case of a Non-Monetary breach; or
(ii) Upon ten (10) days written notice to the defaulting party in the
case of a Monetary breach.
Section 2.3 - Accounting. One hundred twenty (120) days after the
termination of this Agreement, to the extent not earlier provided, Management
will provide the Company with a complete accounting and report of its activities
during the entire term of this Agreement. Management will cooperate with Company
to assist in an orderly transfer to a successor manager or to some other
representative of Company. Promptly after termination, Management shall return
to the Company all records, cash, accounts, contracts and documents belonging to
the Company and relating to the Facility and in Management's possession.
ARTICLE III
Compensation and Expenses
Section 3.1 - Operating Expenses. The Company will be responsible for
payment of all operating expenses and losses incurred in connection with the
operation of the Facility including without limitation for reimbursing the
Employer for all salaries and fringe benefits relating to employees of the
Facility employed by the Employer. To the extent any such expenses are paid by
Management, the Company shall reimburse Management therefor within 15 days of
receipt of a written invoice from Management.
Section 3.2 - Base management Fees. The base compensation (the "Base
Management Fee") to be paid to Management for the services that it renders shall
be equal to five percent (5%) of Gross Revenues (as defined herein) which shall
be in addition to the payment of the Facility's operating expenses.
Section 3.3 - Payment. The Base Management Fees shall be due and payable in
the arrears every third (3rd) month based on Gross Revenues for the prior three
(3) months ("Quarter"), with the first payment due and payable on or before the
twentieth (20th) day of the fourth (4th) month of the Term of this Agreement
based on Gross Revenues for the first Quarter, and thereafter, on or before the
twentieth (20th) day of each month following the end of each Quarter period.
Section 3.4 - Gross Revenues. For purposes of this Agreement the term
"Gross Revenues" shall mean all income from any source related to the Facility,
including without limitation, income from any tenancy or use and occupancy
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arrangement with respect to the Facility, entrances fees, endowment fees and
gross sale proceeds from the sale of any unit of the Facility or the Facility or
any portion thereof; provided, however, that Gross Revenues shall not include
security deposits or last month's rent until applied to rent or other
obligations due and payable; and, in the case of entrance fees and endowment
fees which by law or contract must be held in escrow, shall include only the
portion released or releasable from escrow from time to time.
ARTICLE IV
Insurance
Section 4.1 - Facility Insurance. The Company shall procure and maintain in
full force and effect such insurance policies as are reasonably requested by
Management including without limitation (i) an insurance policy or policies
protecting Management and its officers, employees and agents from loss,
liability or expense from personal injury, death and property damage arising out
of the operations of or upon the Facility; (ii) worker's compensation insurance;
and (iii) Fidelity and Dishonesty Bonds; all in such amounts as management may
reasonably require from time to time but in no event less than required pursuant
to the terms of any loan documents with respect to the Company's borrowings. The
Company shall also insure the Facility and its contents with a standard all
risk insurance policy for the full replacement cost thereof. All such policies
shall contain provisions waiving any right of subrogation by the insurer against
Management and shall name Management as an additional insured.
ARTICLE V
Concluding Provisions
Section 5.1 - Prior Agreements. All prior understandings and agreements
between the parties relating to the management of Company's business are merged
into this Agreement, which alone fully and completely expressed their
understanding.
Section 5.2 - Amendments. This Agreement may not be amended, modified,
altered or changed in any respect whatsoever, except by further agreement, in
writing, fully executed by each of the parties.
Section 5.3 - Joint Effort. The preparation of this Agreement has been a
joint effort of the parties, and the resulting document shall not be construed
more severely against one of the parties than the other.
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Section 5.4 - Assignment. This Agreement may not be assigned by Management
without the prior written authorization of the Company except to an affiliate of
Xxxxxxx X. Xxxxxx.
Section 5.5 - Notices. Notices to be given to any of the parties shall be
in writing and sent by registered or certified mail, return receipt requested
and postage paid or by recognized overnight courier, as follows:
(a) In the event that notice is directed to Company, it shall be sent to
the address appearing in this Agreement or to such other address as it
may in writing direct; and
(b) In the event that notice is directed to Management, it shall be sent
to the address appearing in this Agreement or to such other address as
it may in writing direct.
Section 5.6 - Captions. The captions of this Agreement are for convenience
and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision hereof.
Section 5.7 - Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the Commonwealth of Massachusetts.
Executed under seal at Wellesley, Massachusetts as of the The 12th DECEMBER
31, day of September, 1991.
WITNESS: B & G ASSOCIATES
ET Tower Associates L.P.,
General Partner
By: Eagle Tower, Inc.
_________________________ By: /s/ [Illegible]
----------------------------
Vice-Pres
AMA Congregate Management
Corp; General Partner
/s/ [Illegible] By: /s/ Xxxxxxx X. Xxxxxx
------------------------- ----------------------------
President
MEDIPLEX MANAGEMENT, INC.
/s/ [Illegible] By: /s/ Xxxxxxx X. Xxxxxx
------------------------- ----------------------------
Its President
