Exhibit 10.9
EXECUTION COPY
OPERATIONS TRANSFER AGREEMENT
dated as of June 18, 2003
between
KINDRED HEALTHCARE OPERATING, INC.,
KINDRED NURSING CENTERS SOUTH, L.L.C.,
KINDRED NURSING CENTERS EAST, L.L.C.
SENIOR HEALTH MANAGEMENT, LLC,
FLORIDA INSTITUTE FOR LONG TERM CARE, LLC,
FI- BAY POINTE, LLC,
FI-BOCA RATON, LLC,
FI-BROWARD NURSING, LLC,
FI-CAPE CORAL, LLC,
FI- CARROLWOOD CARE, LLC,
FI-CASA XXXX, LLC,
FI-EVERGREEN XXXXX, LLC,
FI-HIGHLAND PINES, LLC,
FI-HIGHLAND TERRACE, LLC,
FI-PALM BEACHES, LLC,
FI-POMPANO REHAB, LLC,
FI-XXXXXXX REHAB, LLC,
FI-TAMPA, LLC,
FI-THE ABBEY, LLC,
FI-THE OAKS, LLC,
FI-TITUSVILLE, LLC,
FI-WALDEMERE, LLC,
FI-WINDSOR XXXXX, LLC, and
FI-XXXXXXX COURT, LLC
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................3
Section 1.02. General Interpretive Principles...............................8
ARTICLE II
TRANSACTION; CLOSINGS
Section 2.01. The Transaction...............................................8
Section 2.02. Closing.......................................................9
Section 2.03. Deliveries at Closing.........................................9
ARTICLE III
TRANSFERS
Section 3.01. Asset Transfers..............................................11
Section 3.02. Patient Census, Patient Trust Funds and Patient Inventory....12
Section 3.03. Accounts Receivable..........................................14
Section 3.04. Records......................................................15
Section 3.05. Contracts ...................................................17
Section 3.06. Policy and Procedure Manuals.................................17
Section 3.07. Computer Systems.............................................18
ARTICLE IV
EMPLOYMENT MATTERS
Section 4.01. Hired Employees..............................................18
Section 4.02. Employees and Benefits.......................................21
ARTICLE V
POST-CLOSING OBLIGATIONS
Section 5.01. Cost Reports.................................................22
Section 5.02. Prorations...................................................23
Section 5.03. Accounting Close.............................................23
Section 5.04. Further Assurances...........................................24
Section 5.05. Pre-Closing Receipts.........................................24
Section 5.06. Transfer Guaranty............................................24
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
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Section 6.01. Representations and Warranties by Senior Health..............26
Section 6.02. Representations and Warranties by Florida Institute
and the New Operators.....................................27
Section 6.03. Representations and Warranties by Kindred....................29
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.01. Conditions to Kindred's Obligations..........................32
Section 7.02. Conditions to the New Operators' Obligations.................34
Section 7.03. Conditions to the New Operator's Obligations.................35
ARTICLE VIII
COVENANTS
Section 8.01. Consummation of the Transaction..............................36
Section 8.02. Conduct of Business..........................................36
Section 8.03. Insurance....................................................36
Section 8.04. Service Provider Agreements..................................36
Section 8.05. Sale or Use Tax..............................................37
Section 8.06. Trade Names..................................................37
ARTICLE IX
INDEMNIFICATION
Section 9.01. Kindred Indemnification Obligations..........................37
Section 9.02. Florida Institute Indemnification Obligations................37
Section 9.03. Senior Health Indemnification Obligations....................38
Section 9.04. Kindred Indemnification from Litigation......................38
Section 9.05. Florida Institute Indemnification from Litigation............39
ARTICLE X
EFFECT; TERMINATION
Section 10.01. Termination of the Agreement.................................39
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices......................................................40
Section 11.02. Payment of Expenses..........................................41
Section 11.03. Diligence Materials..........................................42
Section 11.04. Entire Agreement; Amendment; Waiver..........................42
Section 11.05. Assignment...................................................42
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Section 11.06. Joint Venture; Third Party Beneficiaries.....................42
Section 11.07. Counterparts.................................................43
Section 11.08. Governing Law................................................43
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EXHIBITS AND SCHEDULES
Exhibit A Form of Fairhaven Sublease Agreement
Exhibit B Form of Lease Agreement
Exhibit C Term Sheet: Operations Transfer Covenants
Exhibit D Form of Xxxx of Sale
Exhibit E Form of Assignment and Assumption Agreement
Exhibit F Form of Ancillary Service Agreements
Exhibit G Form of Management Agreement
Exhibit H Organizational Chart
Exhibit I Insurance Policies
Schedule IA List of Ventas Facilities
Schedule IB Fairhaven Facility
Schedule IC List of Owned Facilities
Schedule 2.03(b)(ii) Purchase Price for the Transferred Assets
Schedule 3.01(a)(ii) Personal Property relating to each Facility
Schedule 3.01(b)(iv) Retained Personal Property
Schedule 3.02(a) Patient Census
Schedule 3.02(b) Patient Trust Funds
Schedule 3.02(c) Patient Inventory
Schedule 3.03(a) Unpaid Accounts Receivable
Schedule 3.05 Assumed Facility Contracts
Schedule 3.07(a) Computer Software and Systems to be Retained
Schedule 6.03(g) Environmental Matters
Schedule 11.03 Diligence Materials
OPERATIONS TRANSFER AGREEMENT
THIS OPERATIONS TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of the 18th day of June, 2003 by and between Kindred Healthcare
Operating, Inc. ("Kindred"), a Delaware corporation formerly known as Vencor,
Inc., Kindred Nursing Centers South, L.L.C. ("Kindred South"), a Delaware
limited liability company, Kindred Nursing Centers East, LLC ("Kindred East"), a
Delaware limited liability company, and Senior Health Management, LLC, a
Pennsylvania limited liability company ("Senior Health"), Florida Institute for
Long Term Care, LLC, a Delaware limited liability company ("Florida Institute"),
and FI-Bay Pointe, LLC, a Florida limited liability company, FI-Boca Raton, LLC,
a Florida limited liability company, FI-Broward Nursing, LLC, a Florida limited
liability company, FI-Cape Coral, LLC, a Florida limited liability company,
FI-Carrollwood Care, LLC, a Florida limited liability company, FI-Casa Xxxx,
LLC, a Florida limited liability company, FI-Evergreen Xxxxx, LLC, a Florida
limited liability company, FI-Highland Pines, LLC, a Florida limited liability
company, FI-Highland Terrace, LLC, a Florida limited liability company, FI-Palm
Beaches, LLC, a Florida limited liability company, FI-Pompano Rehab, LLC, a
Florida limited liability company, FI-Sanford Rehab, LLC, a Florida limited
liability company, FI-Tampa, LLC, a Florida limited liability company, FI-The
Abbey, LLC, a Florida limited liability company, FI-The Oaks, LLC, a Florida
limited liability company, FI-Titusville, LLC, a Florida limited liability
company, FI-Waldemere, LLC, a Florida limited liability company, FI-Windsor
Xxxxx, LLC, a Florida limited liability company, and FI-Xxxxxxx Court, LLC, a
Florida limited liability company (each, a "New Operator" and collectively, the
"New Operators").
W I T N E S S E T H:
WHEREAS, Kindred and Senior Health entered into a letter of intent
dated as of May 12, 2003 (the "LOI"), pursuant to which Senior Health expressed
its interest in a possible transaction to acquire Kindred's 19 skilled nursing
centers located in the state of Florida, a list of which is attached hereto as
Schedule I (each, a "Facility" and collectively, the "Facilities");
WHEREAS, Senior Health has assigned to (i) Senior Health Management -
Gold Coast, LLC, a Florida limited liability company ("Senior Health Gold
Coast") its rights in the LOI as manager, (ii) WKTM-Florida, LLC ("WKTM"), a
Delaware limited liability company its rights in the LOI as the purchaser of the
real property and (iii) to Florida Institute its rights in the LOI as operator
of the Facilities;
WHEREAS, Senior Health has agreed to be party to this Agreement solely
for the purposes of facilitating the transfer of the Facilities from Kindred and
the Operators (as defined below) to the New Operators as contemplated hereby;
WHEREAS, the respective boards of directors or other management bodies
of each of the parties hereto deem it advisable and in the best interest of each
entity and its respective shareholders or members to consummate the transaction
to transfer the operations of the Facilities as contemplated hereby subject to
the terms and conditions set forth herein (the "Transaction");
WHEREAS Ventas Realty, Limited Partnership, a Delaware limited
partnership, ("Ventas"), as prime lessor, and Kindred, as prime tenant, entered
into Amended and Restated
Master Lease Agreements Nos. 1 through 4 (as amended, the "Master Leases") dated
as of April 20, 2001, pursuant to which Ventas leased to Kindred various
properties, including the 16 Facilities listed in Schedule IA attached hereto
(the "Ventas Facilities"), and Kindred subleased the Ventas Facilities to
certain of its Affiliates pursuant to that certain Amended and Restated
Sublease, dated April 20, 2001, as amended by that certain First Amendment to
Amended and Restated Sublease, dated as of December 12, 2001;
WHEREAS, pursuant to an Agreement for Sale of Real Estate and Master
Lease Amendments, dated as of May 14, 2003, Kindred South has agreed to acquire
from Ventas, and Ventas has agreed to sell to Kindred South, the Ventas
Facilities in fee (the "Ventas Acquisition");
WHEREAS, Fairhaven South, Inc., a Florida corporation ("Fairhaven"),
as lessor, and First Health Care Corporation, a Delaware corporation ("First
Health Care"), as tenant, entered into that certain Lease Agreement, dated as of
July 1, 1996 (the "Fairhaven Lease"), pursuant to which Fairhaven leased the
Facility listed in Schedule IB attached hereto (the "Fairhaven Facility") to
First Health Care and First Health Care subsequently assigned the Fairhaven
Lease to Vencor Operating, Inc., which assigned the Fairhaven Lease to Kindred
East, pursuant to an Assignment and Assumption of Leases dated as of April 30,
1998;
WHEREAS, Kindred East owns in fee two of the Facilities listed in
Schedule IC attached hereto (the "Owned Facilities");
WHEREAS, Kindred East also operates the Fairhaven Facility and the
Owned Facilities;
WHEREAS, in furtherance of the Transaction contemplated hereby,
Kindred East intends to enter into an agreement of sublease (a "Sublease
Agreement") with respect to the Fairhaven Facility, dated as of the Closing Date
in substantially the form attached hereto as Exhibit A with FI The Oaks, LLC;
WHEREAS, in furtherance of the Transaction contemplated hereby, the
Affiliates of Kindred that own the Owned Facilities and those that will acquire
the Ventas Facilities intend to enter into agreements of lease (each, a "Lease
Agreement") with respect to all such Facilities, dated as of the Closing Date,
with the New Operators designated by Senior Health that will be the lessees and
operators of each such Facility, such Lease Agreements to be in substantially
the form attached hereto as Exhibit B, provided that such Lease Agreements will
not be entered into if the WKTM Acquisition (as defined below) is completed on
the Closing Date hereof,
WHEREAS, WKTM, Kindred South and Kindred East have entered into a
purchase agreement on the date hereof, whereby WKTM will acquire in fee the
Ventas Facilities and the Owned Facilities from Kindred South and Kindred East
(the "WKTM Acquisition"); and
WHEREAS, the New Operators desire to assume operational responsibility
for the Facilities and to make agreements with Kindred and its Affiliates to
facilitate a smooth transition relating to the operation of the Facilities, all
on the terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants of the parties set forth herein and for other good and valuable
consideration, the adequacy and sufficiency of which are hereby acknowledged, IT
IS HEREBY AGREED AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Accounts Receivable Purchase Price" means the $9 million in
immediately available funds payable at Closing as consideration for the transfer
of the accounts receivable pursuant to Section 3.03 hereof, plus the Contingent
Purchase Price.
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange
Act as in effect as of the date hereof.
"Agreement" has the meaning set forth in the preamble.
"Ancillary Service Agreements" has the meaning set forth in Section
7.01(1) hereof.
"Approvals" has the meaning set forth in Section 7.01(i) hereof.
"Assumed Facility Contracts" has the meaning set forth in Section 3.05
hereof.
"Closing" has the meaning set forth in Section 2.02(a) hereof.
"Closing Date" means the date of Closing of the transfer of the
Facilities pursuant to Section 2.02 hereof.
"COBRA" has the meaning set forth in Section 4.01(c) hereof.
"Code" means the U.S. Internal Revenue Code of 1986, as amended, and
all regulations promulgated thereunder, as in effect from time to time.
"Contingent Period" has the meaning set forth in Section 5.05 hereof.
"Contingent Purchase Price" has the meaning set forth in Section
5.05(b) hereof.
"Diligence Materials" has the meaning set forth in Section 11.03(a)
hereof.
"Environmental Laws" means any and all present and future federal,
state or local laws, statutes, ordinances or regulations, any judicial or
administrative orders, decrees or judgments thereunder, in each case as now or
hereafter in effect, relating to the pollution, protection or cleanup of the
environment, the impact of Hazardous Substances on property, health or safety,
or the use or release of Hazardous Substances.
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"ERISA" means the Employee Retirement Security Act of 1974, as
amended, and all regulations promulgated thereunder, as in effect from time to
time.
"Facility" and "Facilities" have the meanings set forth for each term
in the recitals.
"Facility Contracts" has the meaning set forth in Section 3.05 hereof.
"Facility Records" has the meaning set forth in Section 3.04(b)
hereof.
"Fairhaven" has the meaning set forth in the recitals.
"Fairhaven Facility" has the meaning set forth in the recitals.
"Fairhaven Lease" has the meaning set forth in the recitals.
"First Health Care" has the meaning set forth in the recitals.
"Florida Institute" has the meaning set forth in the preamble.
"Florida Institute Commissioned Reports" means any and all reports
commissioned at any time prior to Closing by or on behalf of Florida Institute,
WKTM, any New Operator or any of their respective lenders relating to the
environmental or physical condition of any Facility or the property on which it
is located, including without limitation Phase I or Phase II environmental
reports, mechanical reports, structural or engineering, and zoning reports.
"Florida Institute Indemnified Parties" has the meaning set forth in
Section 9.01 hereof.
"G/L 4000 Reports" has the meaning set forth in Section 6.03(d).
"Governmental Entity" means any government or political subdivision or
department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Guaranteed Obligations" means (1) the performance by the New
Operators and Florida Institute of their covenants set forth in Article VIII,
(2) the performance by the New Operators and Florida Institute of their
obligations under the Assumed Facilities Contracts and the assumed employee
benefits set forth in Section 4.02(c), (3) in the event of (x) a default under
the terms of the applicable Lease Agreement or Sublease Agreement, (y) the
expiration or sooner termination of the applicable Lease Agreement or Sublease
Agreement or (z) the commencement of the winding down of operations at any
Facility (each, an "Operations Transfer Event"), the full, faithful and punctual
performance of the Operations Transfer Covenants, (4) in the event of an
Operations Transfer Event, the management of the Facilities for up to ninety
(90) days following such Operations Transfer Event, in the manner set forth in
the section of the term sheet relating to the operations transfer agreement
attached hereto as Exhibit C entitled "Transition Period" and (5) the
reimbursement of all costs and expenses (including, without limitation,
4
reasonable attorneys' fees) incurred by any Operator of a Leased Facility in
connection with the enforcement of the Operations Transfer Covenants.
"Hazardous Substance" means petroleum and petroleum products and
compounds containing them, including gasoline, diesel fuel and oil; explosives;
flammable materials; radioactive materials; polychlorinated biphenyls ("PCBs")
and compounds containing them; lead and lead-based paint; asbestos or
asbestos-containing materials that are in friable form but which are not
controlled pursuant to an existing operations and maintenance program; any
substance the presence of which on the Property is prohibited by any federal,
state or local authority because it is hazardous or potentially hazardous or
harmful or potentially harmful to human health or the environment; and any other
material or substance now or in the future defined as a "hazardous substance,"
"hazardous material," "hazardous waste," "toxic substance," "toxic pollutant,"
"contaminant," or "pollutant" within the meaning of any Environmental Laws or
regulated thereby.
"Hired Employees" has the meaning set forth in Section 4.01 (a)
hereof.
"Insurance Policies" has the meaning set forth in Section 6.02(j)
hereof.
"Kindred" has the meaning set forth in the preamble.
"Kindred East" has the meaning set forth in the preamble.
"Kindred Indemnified Parties" has the meaning set forth in Section
9.02 hereof.
"Kindred South" has the meaning set forth in the preamble.
"knowledge" and similar terms used in this Agreement, means, with
respect to the knowledge of Kindred, only the actual current knowledge, without
independent investigation, of the following employees of Kindred: (1) Xxxxxx
Xxxxxxxxxx, Esq., (2) Xxxxxxx Xxxxx, Esq., (3) Xxxxx Bonzel and (4) Xxxxx
Xxxxxx.
"Law" means any law, treaty, statute, ordinance, code, rule or
regulation of a Governmental Entity or judgment, decree, order, writ, award,
injunction or determination of an arbitrator or court or other Governmental
Entity.
"Lease Agreement" has the meaning set forth in the recitals.
"Leased Facilities" has the meaning set forth in the recitals.
"LOI" has the meaning set forth in the recitals.
"Losses" has the meaning set forth in Section 3.05 hereof.
"Master Leases" has the meaning set forth in the recitals.
"Material Adverse Effect" means a material adverse effect on the
business, condition or prospects (financial or otherwise) of the Facilities,
taken as whole.
"New Operator" and "New Operators" have the meaning set forth in the
preamble.
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"New Operator Lender" means CapitalSource Finance, LLC.
"Notice" has the meaning set forth in Section 11.01 (a) hereof.
"Operations Transfer Covenants" means the covenants by each New
Operator of a Facility under the applicable Lease Agreement or Sublease
Agreement to transfer the operations at its Facility to the Operator of such
Facility or its designee upon an Operations Transfer Event, which covenants
shall substantially incorporate the terms set forth in Exhibit C attached
hereto.
"Operations Transfer Event" has the meaning set forth in the
definition of "Guaranteed Obligations" above.
"Operator" means each Affiliate of Kindred currently operating a
Facility as of the date hereof.
"Operator Records" has the meaning set forth in Section 3.04(a)
hereof.
"Owned Facilities" has the meaning set forth in the recitals.
"Patient Census" has the meaning set forth in Section 3.02(a) hereof.
"Patient Inventory" has the meaning set forth in Section 3.02(c)
hereof.
"Patient Trust Funds" has the meaning set forth in Section 3.02(b)
hereof.
"PCBs" has the meaning set forth in the definition of "Hazardous
Substances" above.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust, unincorporated
organization, or Governmental Entity.
"Personal Property" means any and all equipment, inventory owned by
Kindred and/or the Operators and used or useful in the operations of the
Facilities transferred pursuant to Sections 3.01(a)(i) and (ii).
"Pre-Closing Receipts" has the meaning set forth in Section 3.03(c)(i)
hereof.
"Proceeding" any action, suit, proceeding, claim or dispute pending
or, to the knowledge of Kindred after due and diligent investigation, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Entity, by or against Kindred or any Operator of a Facility or against any of
their properties or revenues, and that relate to a Facility.
"Purchase Price" means, with respect to each Facility, the amount paid
in respect of the operating contracts set forth in Schedule 3.05 and the
Personal Property relating to such Facility, as set forth on Schedule 3.01 (a)
attached hereto.
"Regulatory Approvals" means the issuance of licenses by the Florida
Agency for Health Care Administration to the New Operators required in
connection with the consummation of the transactions contemplated by the
Transaction Documents.
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"Representatives" means, with respect to any Person, such Person's
officers, directors, employees, agents, attorneys, accountants, consultants,
equity financing partners or financial advisors or other Person associated with,
or acting on behalf of, such a Person.
"Resident Care System" means the computerized medical record system
required to maintain resident and nursing center records and to produce mandated
minimum data set reports.
"Retained Assets" has the meaning set forth in Section 3.01(b) hereof.
"Retention Period" has the meaning set forth in Section 3.07(a)
hereof.
"Security Deposit" means, with respect to each Facility, a cash sum
equal to one monthly installment of Fixed Rent (as defined in such Lease
Agreement or Sublease Agreement relating to such Facility, as applicable) due
under such Lease Agreement or Sublease Agreement.
"Senior Health" has the meaning set forth in the preamble.
"Senior Health Gold Coast" has the meaning set forth in the recitals.
"Software" has the meaning set forth in Section 3.07(b) hereof.
"Sublease Agreement" has the meaning set forth in the recitals.
"Sublease Consents" shall mean (i) with respect to the Fairhaven
Facility, the written consent of Fairhaven to the sublease of such Facility and
(ii) the written consent of XX Xxxxxx Xxxxx, to the extent required pursuant to
those certain leasehold mortgages granted by Kindred, on or about April 20,
2001, to XX Xxxxxx Xxxxx with respect to certain Facilities, as determined in
the sole discretion of Kindred.
"Sun Coast" means Sun Coast Nursing Centers, Inc., a Delaware
not-for-profit corporation.
"Transaction" has the meaning set forth in the recitals.
"Transaction Documents" has the meaning set forth in Section 6.01 (a)
hereof.
"Transfer Guaranty" has the meaning set forth in Section 5.06(a)
hereof.
"Transferred Assets" has the meaning set forth in Section 3.01 (a)
hereof.
"Ventas" has the meaning set forth in the recitals.
"Ventas Acquisition" has the meaning set forth in the recitals.
"Ventas Facilities" has the meaning set forth in the recitals.
"WARN Act" has the meaning set forth in Section 4.01(b) hereof.
"WKTM" has the meaning set forth in the recitals.
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"WKTM Acquisition" has the meaning set forth in the recitals.
SECTION 1.02. General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the Section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein" and similar terms refer
to this Agreement as a whole (including the Exhibits and Schedules hereto), and
references herein to Articles or Sections refer to Articles or Sections of this
Agreement.
ARTICLE II
TRANSACTION; CLOSINGS
SECTION 2.01. The Transaction. Subject to the terms and conditions set
forth herein:
(a) Kindred East shall enter into a Sublease Agreement with respect to
the Fairhaven Facility with FI-The Oaks, LLC.
(b) Each of the New Operators of an Owned Facility shall enter into a
Lease Agreement with Kindred East with respect to such Facility; provided that
in the event that the closing of the WKTM Acquisition occurs on the Closing Date
hereof, the New Operators shall not enter into such Lease Agreements or any
agreements related thereto, and all provisions herein relating to such Lease
Agreements or the obligations contained therein shall be null and void.
(c) Each of the New Operators of a Ventas Facility shall enter into a
Lease Agreement with respect to each Ventas Facility with Kindred South;
provided that in the event that the closing of the WKTM Acquisition occurs on
the Closing Date hereof, the New Operators shall not enter into such Lease
Agreements or any agreements related thereto, and all provisions herein relating
to such Lease Agreements or the obligations contained therein shall be null and
void.
(d) Each New Operator of a Facility shall purchase certain assets used
by Kindred or the Operator of such Facility in connection with the operation of
such Facility as set forth in Article III hereof.
SECTION 2.02. Closing. (a) Subject to satisfaction or waiver of each
of the conditions set forth in Article VII hereof, the Transaction shall be
effected through a closing (a "Closing") at the offices of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, One Liberty Plaza, New York, New York, or at such other place
as the parties may agree.
(b) The Closing shall occur on June 30, 2003 unless otherwise agreed
by the parties hereto.
SECTION 2.03. Deliveries at Closing. (a) At Closing, Kindred and/or
the Operator of each Facility will make the following deliveries to Senior
Health and the New Operator of each such Facility:
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(i) An executed copy of the applicable Lease Agreement or Sublease
Agreement relating to each Facility, together with all deliveries required
thereunder, including, without limitation, with respect to Waldemere Place,
an executed sublease agreement for the related parking lot,
(ii) A xxxx of sale for the Transferred Assets relating to such
Facility, in substantially the form attached hereto as Exhibit D,
(iii) All documents required to be delivered pursuant to Article III
hereof,
(iv) An executed copy of the assignment and assumption agreement in
substantially the form attached hereto as Exhibit E, and
(v) Executed copies of the Ancillary Service Agreements in
substantially the form attached hereto as Exhibit F,
(vi) Consent and Estoppel Certificate in form and substance reasonably
acceptable to Senior Health or its assignee from the lessor of the
Fairhaven Lease, provided, that Kindred shall only be obligated to deliver
such consent and estoppel in connection with the closing of The Oaks at
Avon,
(vii) A certificate of an officer of each of Kindred, Kindred East and
Kindred South certifying as to (a) due execution of a resolution of the
board of directors or managers of such party authorizing the execution,
delivery and performance of this Agreement and the other Transaction
Documents executed by such party, (b) the incumbency of each officer or
other representative executing any Transaction Document on behalf of such
party and (c) the good standing of each party under the laws of the
jurisdiction in which it was organized, and
(viii) A certificate of an officer of Kindred certifying as to the
matters set forth in Section 7.02(d).
(b) At Closing, the New Operator of each Facility will make the
following deliveries to Kindred and/or the Operator of such Facility:
(i) An executed copy of the applicable Lease Agreement or Sublease
Agreement relating to each Facility, together with any deliveries required
thereunder, including, without limitation, the Security Deposit required
with respect to such Facility and, with respect to Waldemere Place, an
executed sublease agreement relating to the sublease of the related parking
lot,
(ii) The amount set forth in Schedule 2.03(b)(ii) attached hereto,
which amount shall equal (i) the purchase price for the Transferred Assets,
plus (ii) $9 million as initial consideration for the transfer of the
accounts receivable, less (iii) the amount of all accrued wages, vacation,
sick or paid time off benefits assumed by Senior Health as of the Closing
Date and less (iv) any debt or other liabilities of Kindred relating to the
period prior to Closing assumed by Senior Health, WKTM or any New Operator
as of the Closing Date, payable in immediately available funds by wire
transfer to an account designated by Kindred,
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(iii) A certificate of an officer of Senior Health certifying as to
the matters set forth in Section 7.01(j),
(iv) Proof of receipt of all Approvals required prior to such
transfer,
(v) Certificates of insurance (on XXXXX Form 27 where available) in
form and substance satisfactory to Kindred evidencing that all insurance of
the types and in the amounts required by the Sublease Agreement or Lease
Agreement, as applicable, are maintained in force by the applicable New
Operator,
(vi) All documents required to be delivered pursuant to Article III
hereof,
(vii) Evidence of consummation of a working capital facility of at
least $20 million with the New Operator Lender,
(viii) An executed copy of the assignment and assumption agreement in
substantially the form attached hereto as Exhibit E,
(ix) Executed copies of the Ancillary Service Agreements in
substantially the form attached hereto as Exhibit F,
(x) An executed copy of the management agreement between Senior Health
and the New Operator of such Facility in substantially the form attached
hereto as Exhibit G,
(xi) A certificate of an officer of Senior Health certifying as to the
net worth of Senior Health as of the Closing Date,
(xii) A certificate of an officer of Senior Health, Florida Institute
and each New Operator certifying as to (a) due execution of a resolution of
the board of directors or managers of such party authorizing the execution,
delivery and performance of this Agreement and the other Transaction
Documents executed by such party, (b) the incumbency of each officer or
other representative executing any Transaction Document on behalf of such
party and (c) the good standing of each party under the laws of the
jurisdiction in which it was organized, and
(xiii) A certificate of an officer of Florida Institute certifying as
to the matters set forth in Section 11.03(b) hereof.
ARTICLE III
TRANSFERS
SECTION 3.01. Asset Transfers. The following will apply in respect of
each Facility:
(a) For and in consideration of the Purchase Price and the Accounts
Receivable Purchase Price, and subject to the terms and conditions contained
herein, Kindred hereby agrees to, or to cause each Operator of a Facility to,
sell, transfer and convey the following described
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assets relating to each Facility (the "Transferred Assets") to the New Operator
of such Facility as of the Closing:
(i) All inventory and supplies of every kind and nature whatsoever
relating to the operation of each Facility including, but not limited to,
all food, pharmacy, medical, office, maintenance and other inventory and
supplies owned by Kindred and the relevant Operator as of the Closing Date,
(ii) All personal property and equipment in, on, relating to or used
in the operation of, such Facility, including without limitation, those
listed in Schedule 3.01(a)(ii) attached hereto, except as otherwise
provided in Sections 3.01(b)(iv) and 3.01(b)(v),
(iii) Certain vendor, service and operating contracts relating to each
Facility as more specifically set forth in Section 3.05 of this Agreement,
and
(iv) Accounts receivable of such Facility as described in Section 3.03
hereof.
(b) Notwithstanding anything in this Agreement to the contrary, the
Transferred Assets for each Facility shall not include, and neither Kindred nor
the Operator of each Facility shall sell, transfer or convey to the New Operator
of such Facility, the following property relating to such Facility (the
"Retained Assets"):
(i) All assets not directly associated with the operation of such
Facility,
(ii) All licenses to operate such Facility,
(iii) All books and records relating to such Facility, the Operator
thereof and/or the past and present patients at such Facility, except as
set forth in Section 3.04(b) hereof,
(iv) The personal property and equipment relating to the operation of
such Facility set forth on Schedule 3.01(b)(iv),
(v) All computer software and systems except as provided on Schedule
3.07(a),
(vi) All Medicare and Medicaid provider agreements in respect of such
Facility, and
(vii) All cash on hand at such Facility, except as otherwise provided
in Section 3.02(b) hereof.
(c) All Transferred Assets shall be conveyed by Kindred, or the
Operators of such Facility, to the New Operator of such Facility on an "AS
IS-WHERE IS" basis free and clear of all liens, claims or encumbrances, except
as otherwise specified herein.
(d) No Operator shall have any obligation to deliver the Transferred
Assets to any location other than such Facility, it being understood and agreed
that the presence of the Transferred Assets at such Facility on the Closing Date
shall constitute delivery thereof.
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SECTION 3.02. Patient Census, Patient Trust Funds and Patient
Inventory. The following will apply in respect of each Facility:
(a) Prior to the Closing Date, Kindred shall, or shall cause the
Operator of such Facility to, prepare a true, correct and complete census report
of patients at its Facility within two (2) business days prior to the Closing
Date (the "Patient Census"). Each Patient Census shall be initialed by the
Operator and the New Operator of such Facility and shall be substantially in the
form attached hereto as Schedule 3.02(a). As soon as reasonably practicable
following the Closing Date, Kindred shall, or shall cause the Operator of such
Facility to, update the Patient Census to reflect the patients at such Facility
as of the Closing Date.
(b) Prior to the Closing Date, Kindred shall, or shall cause the
Operator of such Facility to, prepare a true, correct and complete accounting,
properly reconciled, of any patient trust funds then held by Kindred or the
Operator for patients at each Facility (the "Patient Trust Funds"). The Patient
Trust Funds shall be initialed by the Operator and the New Operator of such
Facility and shall be substantially in the form attached hereto as Schedule
3.02(b). As soon as reasonably practicable following the Closing Date, Kindred
shall, or shall cause Operator of such Facility to, update such accounting,
properly reconciled, as of the Closing Date, and if and to the extent required
by federal law or Florida law in connection with the issuance to the New
Operator of a license to operate such Facility, cause such updated accounting to
be certified by an independent certified public accountant.
(c) Prior to the Closing Date, Kindred shall, or shall cause the
Operator of such Facility to, prepare a true, correct and complete inventory of
all patients' property then held on behalf of patients of each Facility (the
"Patient Inventory"). The Patient Inventory shall be initialed by the Operator
and the New Operator of such Facility and shall be substantially in the form
attached hereto as Schedule 3.02(c). As soon as reasonably practicable following
the Closing Date, Kindred shall, or shall cause the Operator of such Facility
to, update the Patient Inventory to reflect patients' property as of the Closing
Date.
(d) Within ten (10) days after completion of the accounting described
in Sections 3.02(b) and (c), Kindred shall cause the Operator of such Facility
to, transfer the Patient Trust Funds and Patient Inventory related to such
Facility to the New Operator of such Facility. Florida Institute and the New
Operator, hereby agree that they will accept such Patient Trust Funds and
Patient Inventory and hold the same in trust for the patients, in accordance
with applicable statutory and regulatory requirements.
(e) Kindred and the Operator of each Facility, jointly and severally,
will indemnify, defend and hold the New Operator of such Facility harmless for,
from and against all liabilities, claims and demands, including, without
limitation, reasonable attorneys' fees, in the event the amount of the Patient
Trust Funds and Patient Inventory, if any, transferred to such New Operator does
not constitute the full amount of the Patient Trust Funds and Patient Inventory
that were delivered to Kindred or the Operator of such Facility as custodian
less any amounts used or spent since delivery in accordance with Kindred's or
such Operator's custodial arrangement with its patients, including claims which
arise from actions or omissions of Kindred or its Operators with respect to the
Patient Trust Funds and Patient Inventory on or prior to the Closing Date;
provided that such indemnity shall not apply if the claim in question is subject
to the indemnity in favor of Kindred and such Facility Operator contained in
paragraph (f) below; and provided further that, notwithstanding anything to the
contrary contained in this Agreement,
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each New Operator's right to present any claim for indemnification hereunder
shall terminate on the date that is twelve (12) months following the date of
delivery of the Patient Trust Funds and Patient Inventory pursuant to Section
3.02(d) hereof.
(f) Each of the New Operators will indemnify, defend and hold Kindred
harmless for, from and against all liabilities, claims and demands, including,
without limitation, reasonable attorneys' fees, in the event a claim is made
against Kindred or the Operators of any Facility by a patient (or a patient's
heirs or representatives) for his/her Patient Trust Funds or Patient Inventory
after such Patient Trust Funds or Patient Inventory are transferred to such New
Operator pursuant to the terms of this Agreement if caused by a New Operator;
provided that such indemnity shall not apply if the claim in question is subject
to the indemnity in favor of the New Operators contained in paragraph (e) above.
SECTION 3.03. Accounts Receivable. The following will apply in respect
of each Facility:
(a) Kindred and/or the Operator of such Facility shall transfer all
right, title and interest in all unpaid accounts receivable less any adjustments
for credits due to third parties relating to the period prior to the Closing
Date as set forth on Schedule 3.03(a) hereto, including, but not limited to, any
accounts receivable arising from rate adjustments which relate to the period
prior to such Closing Date even if such adjustments occur after such Closing
Date, for such Facility to the New Operator of such Facility. As soon as
reasonably practicable following the Closing Date, Kindred shall, or shall cause
the Operator of such Facility to, update Schedule 3.03(a) to include all unpaid
accounts receivable relating to the period prior to the Closing Date.
(b) Prior to the Closing Date, Kindred shall establish a designated
account for receipt of all payments from third parties relating to each Facility
from and after the Closing Date for a period of thirty (30) days, and the New
Operator of such Facility shall have all right, title and interest in proceeds
contained in such account. Kindred shall (a) assure that such account is
dedicated solely to the receipt of payments from third party payors, (b)
instruct the Medicare intermediaries to wire Medicare payments to the dedicated
account or immediately deposit into the dedicated account all checks received by
Kindred or the Operator of such Facility from the Medicare program, (c) agree
not to withdraw any funds from the account and (d) irrevocably instruct the
institution maintaining such account to sweep the funds in the account at the
end of each business day into an account in the name of, and controlled by, the
New Operator or into a lockbox account maintained by or on behalf of the New
Operator. Thereafter, at the end of each business day, Kindred and the Operator
of a Facility shall forward any payments received from third parties relating to
the Facility to the New Operator of the Facility. Within sixty (60) days
following the Closing Date, Kindred will perform a reconciliation of all
Medicare PIP payments for overpayments, underpayments or provisions for bad
debts relating to services performed in June.
(c) Payments received by the New Operator after the Closing Date from
third party payors, such as Medicare, Medicaid and Veteran's Administration,
relating to such Facility shall be handled as follows:
(i) If such payments either specifically indicate on the accompanying
remittance advice, or if the parties agree, that they relate to the unpaid
accounts
13
receivable listed on Schedule 3.03(a), they shall be classified as
"Pre-Closing Receipts" and distributed as provided in Section 5.05 hereof.
(ii) If such payments indicate on the accompanying remittance advice,
or if the parties agree, that they do not relate to the unpaid accounts
receivable listed on Schedule 3.03 (a), they shall be retained by the New
Operator of such Facility.
(iii) If such payments indicate on the accompanying remittance advice,
or if the parties agree, that they relate in part to unpaid accounts
receivable listed on Schedule 3.03(a), the portion thereof which does not
relate to unpaid accounts receivable listed on Schedule 3.03(a) shall be
retained by the New Operator of such Facility and the balance shall be
classified as "Pre-Closing Receipts" and distributed as provided in Section
5.05 hereof.
(d) For a period of ninety (90) days following the Closing Date,
unless the remittance advice indicates otherwise, any payments received by the
New Operator after the Closing Date from or on behalf of private pay patients
with outstanding balances as of such Closing Date will first be used to reduce
the patient's pre-Closing Date balances, and as such will be treated as
"Pre-Closing Receipts" and distributed as provided in Section 5.05 hereof, with
any excess applied to reduce any balances due for services rendered by the New
Operator of such Facility after the Closing Date. Thereafter, all payments will
be applied to any post-Closing Date balances, and any balance shall be remitted
to Kindred or the applicable Operator of such Facility within five (5) days of
receipt thereof. If Kindred and the New Operator cannot agree as to which period
a private pay patient's remittance applies, Kindred and the New Operator hereby
agree to engage an independent auditor to determine the period to which such
payment relates.
(e) In the event the parties mutually determine that any payment
hereunder has been misapplied by the parties, the party which erroneously
received said payment shall remit the same to the other within ten (10) days
after said determination is made.
(f) Each of Florida Institute and/or the New Operator of such Facility
shall have the right to inspect all cash receipts, books and records of Kindred
and/or the Operator of such Facility in order to confirm compliance with the
above. Each of Kindred and the Operator of such Facility shall have the right to
inspect all cash receipts, books, and records of Florida Institute and its
designated New Operators in order to confirm compliance with the above. Each of
Kindred and/or the Operator of a Facility shall provide Florida Institute and/or
the New Operator with its accounts receivable aging reports for such Facility
for a period of two (2) years after the Closing Date, and Florida Institute
and/or the New Operator shall provide Kindred and/or the Operator with its
accounts receivable aging reports and detailed daily ledger postings relating to
accounts receivable payments for such Facility on a quarterly basis for a period
of two (2) years after the Closing Date.
SECTION 3.04. Records. The following will apply in respect of each
Facility:
(a) Within sixty (60) days following the Closing Date, Kindred and/or
the Operator of such Facility shall remove from such Facility all of the records
related to such Facility, including, but not limited to, (i) financial records,
(ii) the personnel files of employees other than the Hired Employees (including
but not limited to personnel files, time records, assignment sheets and work
schedules), (iii) medical records and patient records for patients
14
other than those patients that are at such Facility on the Closing Date, (iv)
cost reports and (v) any work papers related to preparation of costs reports,
whether previously filed, audited and settled or which remain unfiled,
unaudited, unsettled or any combination thereof (the "Operator Records");
provided that if required by law or any regulatory agency or third-party payor,
any New Operator may review patient records relating to the period from one (1)
year prior to the Closing Date through the Closing Date if requested in writing
by such New Operator. In addition, Kindred may engage a third party to copy any
Operator Records located at such Facility for up to sixty (60) days following
the Closing Date provided that Kindred complies with all laws, rules and
regulations relating to the copying of the Operator Records.
(b) Subject to Operator's rights under Section 3.07(a), Kindred and/or
the Operator of such Facility shall deliver to the New Operator of such Facility
originals or copies of the following records: (i) the personnel files of the
Hired Employees, and (ii) medical records and patient records for patients at
such Facility on the Closing Date (the items referred to in clauses (i) and (ii)
collectively, the "Facility Records"). Notwithstanding the foregoing, Kindred
and/or the appropriate Operator of such Facility may, at its option, copy the
Facility Records any time within sixty (60) days following the Closing Date.
(c) From time to time Kindred shall, or shall cause the appropriate
Operator of such Facility to, at Florida Institute's or the New Operator of such
Facility's request and cost, send Florida Institute or the New Operator a copy
of the original relevant file in the event the New Operator subsequently
readmits any patient whose file was removed pursuant to Section 3.04(a).
Kindred's obligation under this Section 3.04(c) shall expire one (1) year
following the Closing Date.
(d) Subsequent to the sixty (60) day period provided in Section
3.04(b), each of the parties hereto shall allow, upon reasonable prior notice
and during normal business hours, each of the parties hereto and their
respective agents and representatives to have reasonable access to, and to make
copies of, records relating to a Facility held by such party, to the extent
reasonably necessary to enable them to investigate and defend malpractice,
employee or other claims, to file or defend cost reports and tax returns and to
verify accounts receivable collections due. To the extent necessary, the New
Operator of such Facility also will provide access to such Facility and its
employees if reasonably requested by Kindred or any of its Affiliates,
including, without limitation, the right to enter such Facility. To facilitate
this process, each New Operator hereby designates Xxxxx Xxxxxxxxx (727-820-8408)
as liaison to assist Kindred in obtaining this information and Kindred hereby
designates Xxxxxxx Xxxxxxxx (502-596-7329) as liaison to assist the New
Operators in obtaining this information.
(e) Subsequent to the Closing Date, the parties hereto shall be
entitled to obtain the originals of any Facility Records and any records
retained by Kindred and its Affiliates, for purposes of any litigation or other
proceeding involving a patient or employee to whom such record relates, if an
officer of or counsel for the appropriate party certifies that such original
record must be produced in order to comply with applicable law or the order of
an administrative agency or a court of competent jurisdiction in connection with
such litigation or other proceeding. Any record so removed shall promptly be
returned following its use or release by the applicable administrative agency or
court.
(f) The New Operator of such Facility shall maintain the Facility
Records to the extent required by all applicable state and/or federal law, but
in no event less than six (6) years
15
from the Closing Date, and shall allow Kindred and its Affiliates reasonable
opportunity to remove the Facility Records, at Kindred's or such Affiliate's
expense, at such time after such record retention period as may be required by
law has expired.
(g) Notwithstanding anything to the contrary contained herein, the
parties hereto shall not be required to disclose or to provide access to any
records to the extent that such disclosure or access would constitute a
violation of any federal or state law governing privacy of medical information,
including, but not limited to, the Health Insurance Portability and
Accountability Act and Florida laws governing privacy of patients' medical
records.
SECTION 3.05. Contracts. With respect to each Facility, Kindred has
provided the New Operator of such Facility with a list of all vendor, service
and other operating contracts for such Facility (the "Facility Contracts") and a
copy of each contract identified on said list. Attached hereto as Schedule 3.05
is a list of all contracts that each New Operator will assume from Kindred or
the Operator of such Facility as of Closing (the "Assumed Facility Contracts").
As soon as reasonably practicable following the Closing Date, Kindred shall, or
shall cause the Operator of such Facility to, update Schedule 3.05 to include
all Facility Contracts, to the extent assignable, that were entered into in the
ordinary course of business following the preparation of such list and prior to
the Closing Date. Any Facility Contracts not so listed shall not be assumed.
Effective as of the Closing Date, Kindred shall, or shall cause the appropriate
Operator of such Facility to, assign, and the New Operator of such Facility
shall assume and agree to be bound by all of the terms and conditions of the
Assumed Facility Contracts. Kindred will indemnify, defend and hold such New
Operator harmless against any and all losses, penalties, judgments, suits,
costs, claims, liabilities, damages and expenses including, without limitation,
reasonable attorneys' fees and disbursements (collectively, "Losses"), incurred
by, imposed upon or asserted against such New Operator, its Affiliates and
Representatives as a result of, relating to or arising out of any obligations
under (a) the Assumed Facility Contracts relating to the period prior to the
Closing Date, even if the same do not arise until after the Closing Date, or (b)
any Facility Contracts that are not Assumed Facility Contacts with respect to
such Facility. Florida Institute and the New Operator of a Facility will
indemnify, defend and hold Kindred harmless against any and all Losses incurred
by, imposed upon or asserted against Kindred or the Operator of such Facility as
a result of, relating to or arising out of any obligations under the Assumed
Facility Contracts relating to the period from and after the Closing Date.
Kindred's and the New Operator's rights to be indemnified by the other party
pursuant to this Section 3.05 shall terminate upon the later of (i) the date
that is nine (9) months from the Closing Date or (ii) the expiration of the
relevant Assumed Facility Contract.
SECTION 3.06. Policy and Procedure Manuals. With respect to each
Facility, Kindred shall, or shall cause the Operator of such Facility to, remove
all policy and procedure manuals from such Facility after four (4) months.
Florida Institute and the New Operator understand that the policy and procedure
manuals are the sole property of Kindred and the Operator of such Facility and
shall not be copied or reproduced in any way or shared with any unrelated party;
provided, however, that Florida Institute or the New Operator shall be allowed
to copy, reproduce and share such policy and procedure manuals to the extent
reasonably necessary to enable Florida Institute, the New Operators or any of
their Affiliates to investigate and defend employee claims.
16
SECTION 3.07. Computer Systems. The following will apply in respect of
each Facility:
(a) On or before thirty (30) days following the Closing Date, Kindred
shall, or shall cause the appropriate Operator of such Facility to, remove from
such Facility all of its servers, licensed software and computer hardware,
including all the hard drives of all computers, located at such Facility and
listed on Schedule 3.07(a) that are connected to Kindred's or to any of its
Affiliates' corporate accounting and medical records network. Notwithstanding
the foregoing, Kindred agrees that in order to assist the New Operator of such
Facility in ensuring the continued operation of such Facility after the Closing
Date in compliance with applicable law and in a manner which does not jeopardize
the health and welfare of the residents of such Facility, Kindred shall, or
shall cause the Operator of such Facility to, either (i) print out the medical
treatment records and physician orders for each resident as of the Closing Date
or (ii) authorize the New Operator to use Resident Care System for a period of
thirty (30) days after the Closing Date or until the New Operator installs its
own clinical information system in such Facility, whichever occurs first (the
"Retention Period"), in order to enable the New Operator to obtain the necessary
copies of such medical records and physician orders. All computer hardware and
peripherals, including, but not limited to, monitors, keyboards, CPUs, hard
drives, network equipment, printers, mice, scanners, etc., not listed on
Schedule 3.07(a) shall not be removed.
(b) Each of Florida Institute and such New Operator acknowledges that
(i) Kindred's computer software (the "Software") is confidential and proprietary
to Kindred and (ii) Kindred has advised them that the Software is copyrighted.
Each of them further acknowledge and agree that the Software is to be used
solely by Florida Institute or the New Operator of such Facility during the
Retention Period and neither Florida Institute nor the New Operator shall copy
the Software, distribute the Software to any third party or provide access to
the Software to any third party. Nothing contained herein shall preclude Florida
Institute and/or such New Operator from entering into an agreement for the use
of the Software.
ARTICLE IV
EMPLOYMENT MATTERS
SECTION 4.01. Hired Employees. The following will apply in respect of
each Facility:
(a) Upon terms and conditions set by the New Operator, as described
herein, the New Operator of such Facility shall offer employment to all
employees of the Operator of such Facility who, as of the Closing Date, are
actively working at such Facility. The New Operator of such Facility shall also
offer employment upon the terms and conditions set forth herein, to all
employees of the Operator of such Facility who, as of the Closing Date, are on a
leave of absence pursuant to Kindred's Family and Medical Leave of Absence
Policy or due to a work-related injury or illness, when and only when they
return from such leave. All such employees electing to accept employment with
the New Operator of such Facility are hereinafter referred to as the "Hired
Employees". Florida Institute and the New Operator of such Facility shall
defend, hold harmless and indemnify Kindred from and against any and all claims,
causes of action and liability for or arising out of the failure of Florida
Institute and the New Operator of such Facility to offer employment to any
Kindred employees, or to hire any such employees who accept the
17
New Operator's offer of employment, on the terms set forth in this Section
4.01(a), who are as of the Closing Date (i) actively working, or (ii) on a leave
of absence pursuant to Kindred's Family and Medical Leave of Absence Policy or
due to a work-related injury or illness, provided that the New Operator receives
notice that any such employee is on such a leave of absence. It is understood
that neither Florida Institute nor the New Operators shall be responsible for
any disability or workers' compensation benefits for any employees on leave of
absence pursuant to Kindred's Family and Medical Leave of Absence Policy or due
to a work-related injury or illness that are receiving such benefits as of the
Closing Date until such time as they become Hired Employees. As to each of the
Hired Employees, the New Operator of such Facility shall recognize each such
Hired Employee's original hire date and shall continue to employ each such Hired
Employee for a period of no less than ninety (90) days following the Closing
Date, unless the employment of such Hired Employee is terminated in accordance
with the relevant New Operator's personnel policies, or as a result of such
Hired Employee's resignation. The offer of employment and any such employment of
a Hired Employee by the New Operator of such Facility shall be on terms which
require said Hired Employee to perform comparable services, in a comparable
position and at the same base salary as such Hired Employee enjoyed with such
Facility prior to the Closing Date. All Hired Employees will be provided with
benefit plans as described in Section 4.02 hereof. Kindred, or any of its
Affiliates, shall have the right to employ or offer to employ any former
employee of the Facility who declines to accept the offer of employment with the
New Operator of such Facility made pursuant to Section 7.01(k) hereof. Nothing
in this Agreement shall be interpreted to require the New Operator to adopt any
collective bargaining agreements, tentative agreements, or terms and conditions
therein, entered into by Kindred, or any of its Affiliates, and any labor
organization, except to the extent specifically set forth in this Agreement.
(b) Each of Kindred and Senior Health acknowledge and agree that the
provisions of Section 4.01 (a) are designed solely to ensure that the Operator
of such Facility is not required to give notice to the employees of the Facility
of the "closure" thereof under the Worker Adjustment and Retraining Notification
Act (the "WARN Act") or under any comparable state law. Accordingly, Senior
Health, Florida Institute and the New Operator of such Facility shall indemnify,
defend and hold harmless Kindred and the Operator of such Facility for, from and
against any liability which it may incur under the WARN Act or under comparable
state law in the event of a violation by the New Operator of such Facility of
its obligations thereunder, including a violation that results from allegations
that Florida Institute or the New Operator of such Facility constructively
terminated employees of the Facility as a result of the terms and conditions of
employment offered by the New Operator; provided, however, that nothing herein
shall be construed as imposing any obligation on Florida Institute or the New
Operator of such Facility to indemnify, defend or hold harmless Kindred and the
Operator of the Facility for, from and against any liability which it may incur
under the WARN Act as a result of the acts or omissions of Kindred or the
Operator of such Facility prior to Closing, it being understood and agreed that
the indemnification obligations of Florida Institute and the New Operator shall
only arise if Florida Institute and such New Operator are not in compliance with
the requirements of Article IV. Nothing in this Article IV shall, however,
create any rights in favor of any person not a party hereto, including the
employees of such Facility, or constitute an employment agreement or condition
of employment for any employee of Kindred or any Affiliate thereof who is a
Hired Employee.
18
(c) Kindred shall, or shall cause the Operator of such Facility to,
offer and provide, as appropriate, group health plan continuation coverage
pursuant to the requirements of Section 601, et seq. of ERISA and Section 4980B
of the Code ("COBRA") to all of the employees of the Facility to whom it is
required to offer the same under applicable law. Kindred acknowledges and agrees
that neither Florida Institute nor any New Operator is assuming any of Kindred's
or its Affiliates' obligations to its employees under COBRA or otherwise, except
as specifically provided in this Article IV. As of the Closing Date, all active
employees of the Operator of such Facility: (i) who participate as of the
Closing Date in group health insurance coverage sponsored by the Operator and
(ii) who become Hired Employees after the Closing Date, shall be eligible for
participation in a group health plan (as defined for purposes of Internal
Revenue Code Section 4980B) established and maintained by Florida Institute or
the New Operator of such Facility for the general benefit of employees and their
dependents, and all such employees shall, if permissible under the plan of
Florida Institute or the New Operator of such Facility, as applicable, be
covered without a waiting period and without regard to any pre-existing
condition unless (a) they are under a waiting period with Operator at the time
of Closing, in which case they shall be required to complete their waiting
period while under the group plan of Florida Institute or of the New Operator of
such Facility or (b) they were subject to a pre-existing condition exclusion
while under the relevant Operator's group-health plan, in which case they shall
be subject to the same exclusion while in the group plan of Florida Institute or
the designated New Operator of such Facility, which exclusion shall, if
applicable, be subject to the same time limitation while employed by the New
Operator as was applicable thereto while said employees were employed by the
Operator of such Facility, with the time limit calculated from the date the same
commenced while employed by such Operator. The New Operator and Kindred
acknowledge and agree that it is the intent of this provision that neither
Kindred nor its Affiliates shall be required to provide continued health
coverage under ERISA or Section 4980 of the Code to any Hired Employees or to
any qualified beneficiary (as defined for purposes of Section 4980B of the Code)
with respect to any such employees. Without limitation of the foregoing, Kindred
shall be responsible for providing welfare benefits (including, without
limitation, medical, hospital, dental, accidental death and dismemberment, life,
disability and other similar benefits) to Hired Employees for all claims
incurred and benefits earned prior to the Closing Date under and subject to the
generally applicable terms and conditions of the employee benefit plans,
programs and policies in which such employees were entitled to participate prior
to the Closing Date, as amended from time to time. Florida Institute or the New
Operator shall be responsible for providing such benefits for claims incurred
and benefits earned on or after the Closing Date under and subject to the
generally applicable terms and conditions of Florida Institute or the New
Operator's, as applicable, employee benefit plans, programs and arrangements as
amended from time to time. For purposes of this Section 4.01(c), a claim is
"incurred" on the date the applicable medical or dental services are rendered,
drugs or other medical equipment are purchased or used, as the case may be, or,
in the case of a confinement, the related expenses are deemed incurred per diem.
(d) Kindred agrees that the employment of the Hired Employees of such
Facility will be important to the viability of operations at such Facility.
Accordingly, Kindred agrees that for the period ending on the earlier of: (i)
one (1) year after the Closing Date and (ii) the date of termination of the
Sublease Agreement or Lease Agreement, as applicable, relating to such Facility
or the purchase agreement relating to the WKTM Acquisition, it will not, and
will cause its Affiliates not to, directly or indirectly solicit the employment
of any of such Hired Employees nor shall it take any action to directly or
indirectly interfere with their employment relationship
19
with the New Operator of such Facility or to induce them in any manner to
terminate their employment relationship with the New Operator of such Facility.
(e) Kindred or the Operator of each Facility shall be responsible for
filing and providing to Hired Employees Forms W-2 and similar forms for Hired
Employees for the period up through June 30, 2003. Florida Institute and/or the
New Operator of such Facility shall assume the responsibility for filing and
providing to Hired Employees Forms W-2 and similar forms for Hired Employees
thereafter.
SECTION 4.02. Employees and Benefits. (a) As of the Closing Date, all
Hired Employees shall cease to accrue benefits under the employee benefit plans,
programs and policies of Kindred, and Kindred shall take all such action as may
be necessary to effect such cessation. There shall be no transfer of assets or
liabilities of such plans, programs and policies to Florida Institute or the New
Operator or to any employee benefit plans of the New Operator except as provided
herein. Kindred shall retain all responsibility for, and Florida Institute or
the New Operator shall have no obligation or responsibility for, any of such
benefits, except as provided herein.
(b) Kindred shall retain and satisfy any and all responsibility for
all, and Kindred acknowledges that Florida Institute and the New Operator shall
have no obligation or responsibility for any, liabilities or obligations
relating to, except as expressly assumed by Florida Institute or the New
Operator hereunder, (i) any Kindred employee who is not a Hired Employee and
(ii) any Hired Employee for any period prior to such Hired Employee becoming an
employee of the New Operator while such person was employed by Kindred or an
Affiliate. Florida Institute and the New Operator shall assume and be
responsible for all, and Florida Institute and the New Operator acknowledges
that Kindred shall have no obligation or responsibility for any, liabilities or
obligations relating to Hired Employees from and after the Closing Date. Kindred
represents and warrants that, with respect to the Facilities, it has complied
with all applicable laws respecting wage, hours of work and payroll and Family
Medical Leave Act requirements and all ERISA requirements relating to funding
all pension liability under any employee benefit plans identified as such on
Schedule 3.05, except to the extent that any failure to comply with such
representation and warranty would not reasonably be expected to have a Material
Adverse Effect.
(c) For one (1) year following the Closing Date, Florida Institute and
the New Operator of such Facility shall provide or cause to be provided to Hired
Employees benefit plans, programs and policies (including, without limitation,
pension, savings, paid time off, vacation, medical and other plans, programs and
policies), excluding incentive compensation plans, each of which is
substantially similar in value with respect to each Hired Employee to the
corresponding benefit plan maintained by Florida Institute or the New Operator
for similarly situated employees from time to time during such one-year period,
as determined by Florida Institute or the New Operator, subject to applicable
law.
(d) Florida Institute and the New Operator of such Facility shall give
credit to Hired Employees for purposes of eligibility to participate and to vest
(but not for benefit accrual purposes) under the benefit plans, programs and
policies (including, without limitation, pension, savings, paid time off,
vacation, medical and other plans, programs and policies) in which the Hired
Employees participate after the Closing Date, for service by Hired Employees
prior to the
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Closing Date, to the extent such service was taken into account for each such
purpose by Kindred under each corresponding employee benefit plan, program or
policy.
(e) On the Closing Date, Florida Institute and the New Operator of
such Facility shall assume any and all liability with respect to unused paid
time off, sick leave or vacation either accrued or earned for all Hired
Employees as of the Closing Date. Florida Institute and the New Operator of such
Facility shall defend, hold harmless and indemnify Kindred from and against any
and all claims, causes of action and liability for or relating to accrued or
earned paid time off, sick leave and vacation as of the Closing Date for Hired
Employees
ARTICLE V
POST-CLOSING OBLIGATIONS
SECTION 5.01. Cost Reports. The following will apply in respect of
each Facility:
(a) In respect of each Facility, Kindred shall cause the Operator of
such Facility to prepare and file with the appropriate Medicare and Medicaid
agencies its final cost reports in respect to its operation of such Facility as
soon as reasonably practicable after the Closing Date, but in no event later
than the date on which such final cost report is required to be filed by law
under the terms of the Medicare and Medicaid Programs, and will provide the
appropriate Medicare and Medicaid agencies with any information needed to
support claims for reimbursement made by such Operator either in said final cost
report or in any cost reports filed for prior cost reporting periods, it being
specifically understood and agreed that the intent and purpose of this provision
is to ensure that the reimbursement paid to Florida Institute or the New
Operator after it becomes the licensed operator of such Facility is not reduced
or offset in any manner as a result of such Operator's failure to timely file,
or filing inaccurate or incomplete, final cost reports or supporting
documentation with respect to any past reimbursement claims, including, but not
limited to, those included in the final cost reports. Kindred shall cause such
Operator to promptly provide Florida Institute or the New Operator for such
Facility with copies of such reports and supporting documentation. Kindred shall
be responsible for all liabilities under the Medicare and Medicaid programs to
the extent that such liabilities arise from events, including but not limited
to, overpayment, recoupments, fines, penalties, late charges and assessments
occurring on or before the Closing Date. Kindred shall indemnify, defend and
hold harmless Florida Institute and the New Operator of such Facility for, from
and against all liabilities, losses, claims and expenses resulting from its
failure to timely file cost reports or from or filing inaccurate or incomplete
cost reports or any adjustment (including but not limited to, adjustments for
over billing of Medicare or Medicaid) to any cost reports for cost reporting
periods prior to the Closing Date.
(b) Florida Institute and the New Operator of such Facility shall
indemnify and hold harmless Kindred and the Operator of such Facility for, from
and against all third party claims resulting from cost reports filed by Florida
Institute or the New Operator of such Facility for cost reporting periods
following the Closing Date.
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SECTION 5.02. Prorations. The following will apply in respect of each
Facility:
(a) Revenues and expenses pertaining to Assumed Facility Contracts,
utility charges for the billing period in which the Closing Date occurs, real
and personal property taxes, prepaid expenses and other related items of revenue
or expense attributable to such Facility shall be prorated between Kindred (or
the appropriate Operator) and Florida Institute or the New Operator as of
midnight of the calendar day immediately prior to the Closing Date. In general,
such prorations shall be made so as to reimburse Kindred (or the appropriate
Operator) for prepaid expense items and to charge Kindred (or the appropriate
Operator) for prepaid revenue items to the extent that the same are attributable
to periods on or after the Closing Date. The intent of this provision shall be
implemented by Florida Institute or the New Operator for such Facility remitting
to Kindred any invoices which reflect an invoice date before the Closing Date
and by Florida Institute or the New Operator for such Facility assuming
responsibility for the payment of any invoices which reflect an invoice date on
and after the Closing Date, with any overage or shortage in payments by either
party to be adjusted and paid as provided in Sections 5.02(b) and (c) below.
(b) All such prorations shall be made on the basis of actual days
elapsed in the relevant accounting, billing or revenue period and shall be based
on the most recent information available to Kindred (which shall be deemed to
include any information available to the Operator of such Facility). Utility
charges that are not metered and read on the Closing Date shall be prorated upon
receipt of statements therefor.
(c) All amounts owing from one party hereto to the other party hereto
that require adjustment after the Closing Date shall be settled within thirty
(30) days after the Closing Date or, in the event the information necessary for
such adjustment is not available within said 30-day period, then as soon
thereafter as practicable.
SECTION 5.03. Accounting Close. The New Operators acknowledge that
Kindred will need the assistance of the New Operators and access to the
Facilities and the Operator Records to complete the accounting close for the
most recent accounting period through the Closing Date. The employees of the New
Operators will primarily accomplish the accounting close in accordance with
their prior practices according to Kindred's policies and procedures within the
first sixteen (16) days following the Closing Date. Each New Operator will
provide Kindred with access to such Operator Records and the computer terminals
and systems reasonably necessary for Kindred to complete the accounting close.
SECTION 5.04. Further Assurances. Each of the parties hereto agrees to
use its reasonable best efforts to take, and to cause its officers, employees,
representatives, advisors and agents to take, all action and to do, or cause to
be done, all things necessary, proper or advisable to effectuate the foregoing
at the earliest practicable time.
SECTION 5.05. Pre-Closing Receipts. The Pre-Closing Receipts shall be
distributed as follows:
(a) The initial $9 million of Pre-Closing Receipts collected by the
New Operators after the Closing shall be retained by the New Operators.
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(b) Thereafter on a monthly basis until the end of the month in which
the second anniversary of Closing falls (the "Contingent Period"), as further
consideration for the accounts receivable transferred pursuant to Sections 3.01
(a)(iv) and 3.03 hereof, the New Operator of each Facility shall pay to Kindred
an amount equal to eighty-five percent (85%) of all Pre-Closing Receipts
received by or for the benefit of the New Operators as described in Section
3.03(b) (the "Contingent Purchase Price"). The New Operators agree to use
reasonable efforts to collect such Pre-Closing Receipts.
(c) The Contingent Purchase Price payable pursuant to Section 5.05(b)
shall be paid to Kindred and/or the Operator of such Facility on the 15th day of
the first month following collection of the amount referenced in Section 5.05(a)
and continuing through the 15th day of the month following the month in which
the Contingent Period ends. Such payments shall be made in immediately available
funds by wire transfer to an account designated by Kindred. In event of any
dispute regarding the allocation of accounts receivable, the parties shall
retain an independent Florida public accountant, and the costs of such
accountant shall be shared equally among the parties.
(d) Each of Kindred and the Operator of such Facility shall have the
right to inspect all cash receipts, books, and records of Florida Institute and
its designated New Operators in order to confirm compliance with the above
during normal business hours. Florida Institute and/or the New Operator shall
provide Kindred and/or the Operator with its accounts receivable aging reports
and detailed daily ledger postings relating to accounts receivable payments on a
monthly basis for such Facility through the month in which the Contingent Period
ends.
SECTION 5.06. Transfer Guaranty. The following shall apply in respect
of each Facility:
(a) Senior Health unconditionally and irrevocably guarantees, as
principal obligor and not as surety, to each Operator of a Facility, Kindred,
Kindred South and Kindred East the prompt payment in full and performance of the
Guaranteed Obligations when due in strict accordance with the Lease Agreement or
Sublease Agreement, as applicable (the "Transfer Guaranty"). The Transfer
Guaranty contained in this Section 5.06 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
(b) Senior Health agrees that, upon failure of the New Operator or
Florida Institute either to pay or perform any of the Guaranteed Obligations,
Senior Health shall immediately on demand by Kindred, and no later than 24 hours
thereafter, pay or perform such Guaranteed Obligations. Senior Health agrees to
pay on demand all out-of-pocket expenses (including the reasonable fees and
expenses of the attorneys of each Operator of a Facility) in any way relating to
the enforcement or protection of the rights of such Operators under the
Guaranteed Obligations, including, without limitation, costs and expenses in
connection with any claim alleging that the payment of the Guaranteed
Obligations constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law. All amounts paid or delivered
under this Section 5.06 shall be paid or delivered in immediately available
funds, without set-off, deduction or counterclaim.
(c) Senior Health agrees that (i) it shall not be entitled to notice
of any failure by any New Operator to pay or perform any of the Guaranteed
Obligations, (ii) its obligations under this Section 5.06 are independent of the
obligations of the New Operators of the Leased
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Facilities, and a separate action or actions may be brought and prosecuted
against Senior Health and (iii) as between Senior Health and the Operators of
the Facilities, such Guaranteed Obligations may be declared due and payable as
provided in the Lease Agreements or Sublease Agreement, as applicable,
notwithstanding any stay preventing such declaration as against any other person
and that, in such event, such Guaranteed Obligations (whether or not due and
payable by any other person) shall be immediately due and payable by Senior
Health.
(d) Senior Health agrees that its obligations under this Section 5.06
are absolute and unconditional, irrespective of the validity or enforceability
of the Lease Agreements, Sublease Agreement or any related documents, or any
substitution of any other security for the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever (including, without limitation, personal defenses of any
New Operator of a Facility or any other obligor) which might otherwise
constitute a legal or equitable discharge or defense of a surety, Senior Health
or co-obligor.
(e) The obligations of Senior Health under this Section 5.06 shall be
automatically reinstated if and to the extent that for any reason any
performance by or on behalf of any person in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise.
(f) Without limiting the Transfer Guaranty, Senior Health waives (i)
any notice with respect to any of the Guaranteed Obligations; (ii) any
requirement that Kindred South and/or any Operator exhaust any right against
Florida Institute or any New Operator or any other person or any collateral;
(iii) any defense (whether available to Florida Institute or any such New
Operator and arising under the Lease Agreements, Sublease Agreement or this
Transfer Guaranty) based upon an election of remedies by any Operator which in
any manner impairs its subrogation or contribution rights to proceed against
Florida Institute or any such New Operator or any other person or any
collateral; provided, that this waiver of defenses is absolute and unconditional
irrespective of any invalidity or unenforceability of any of the Lease
Agreements, Sublease Agreement, this Transfer Guaranty or any other agreement;
(iv) any duty of any such Operator to disclose to Senior Health any matter
relating to the business of any such Operator or any other party now known or
hereafter known by any such Operator; (v) any requirement that any such Operator
file any claim relating to the Guaranteed Obligations in the event that any
person or party liable on any of the Guaranteed Obligations, or interested
therein, becomes subject to a bankruptcy or similar proceeding; (vi) all demands
for performance, notices of nonperformance and incurrence of new indebtedness;
and (vii) the benefit of any statute of limitation affecting its liability.
(g) Any obligations of Florida Institute or any New Operator to Senior
Health, now or hereafter existing, are hereby subordinated to the Guaranteed
Obligations. In addition, Senior Health hereby agrees not to exercise any rights
it has or may have for subrogation, indemnity, reimbursement or contribution
against Florida Institute or any New Operator, or enforce any security over
assets of Florida Institute or any New Operator, for amounts paid by Senior
Health pursuant hereto until such time as all Guaranteed Obligations have been
paid and performed in full. If any amount shall be paid to Senior Health in
violation of the preceding sentence, Senior Health shall hold such amount in
trust for the benefit of Kindred, Kindred South, Kindred East and/or the
Operators and it shall forthwith pay such amount to Kindred, Kindred South,
Kindred East and/or the Operators, to be credited and applied to the performance
24
of the Guaranteed Obligations. In addition, so long as any amount payable by
Florida Institute or any New Operator remains outstanding, Senior Health shall
not (i) exercise any right of subrogation or indemnity against Florida Institute
or any New Operator or (ii) file a proof of claim in competition with Kindred,
Kindred South, Kindred East and/or any Operator for any amount owing to Senior
Health by Florida Institute or any New Operator in respect of such subrogation
rights.
(h) Senior Health covenants that, so long as the Lease Agreements,
Sublease Agreement and related documents are in effect and until the Guaranteed
Obligations have been paid and performed in full, it shall not dissolve,
liquidate, or wind up its affairs.
(i) The Transfer Guaranty shall inure to the benefit of and be
enforceable by Kindred, Kindred South, Kindred East, each Operator and their
respective successors and assigns. Senior Health may not assign or delegate any
of its obligations hereunder, and any purported assignment or delegation hereof
in violation of the foregoing shall be null and void. Kindred, Kindred South,
Kindred East and/or such Operators may, without notice, assign this Transfer
Guaranty in whole or in part, and no assignment or transfer of the Lease
Agreements or Sublease Agreement or subletting of the properties shall operate
to extinguish or diminish the liability of Senior Health hereunder.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties by Senior Health. Senior
Health, although it has no ownership interest in Florida Institute or any of the
New Operators, as prospective manager of each Florida Facility on behalf of the
New Operators and in order to facilitate the transactions contemplated hereby,
hereby represents and warrants as follows:
(a) Senior Health has full right, power and authority to enter into
this Agreement and any other documents and instruments necessary to consummate
the transactions and arrangements contemplated hereby (collectively, the
"Transaction Documents") to which it is a signatory, and all necessary action
has been taken to authorize the individual executing this Agreement on behalf of
Senior Health to do so.
(b) Senior Health is a duly formed limited liability company in good
standing in its jurisdiction of organization and in all jurisdictions (including
Florida) in which it presently conducts business, and is authorized to conduct
business in Florida.
(c) The execution, delivery and/or performance of obligations under
this Agreement and all other Transaction Documents, to the extent that such
documents have been executed and delivered by Senior Health, and the
consummation of the transactions contemplated by the Transaction Documents in
accordance with the terms and conditions thereof, are within Senior Health's
powers, have been duly authorized by all necessary organizational action and do
not and will not contravene the terms of Senior Health's governing documents.
Each Transaction Document, to the extent that Senior Health is a party thereto,
when delivered will constitute a legal, valid and binding obligation of Senior
Health, enforceable against Senior Health in accordance with its terms.
25
(d) All representations and warranties made by Senior Health in this
Agreement, when considered as a whole are true and correct in all material
respects and do not contain any untrue statement of material fact necessary to
make statements contained therein not misleading in light of circumstances under
which they were made.
(e) No Person has acted directly or indirectly as a broker, finder or
financial advisor of Senior Health in connection with the Transaction Documents
or the transactions contemplated thereby, and no Person acting for or on behalf
of Senior Health is entitled to receive any broker's, finder's or similar fee or
commission in respect thereof based in any way on any agreement, arrangement or
understanding made by or on behalf of Senior Health.
(f) Unless otherwise indicated in a specific representation or
warranty contained herein, as of the Closing Date for a particular Facility each
representation and warranty of Senior Health shall be true, complete and correct
in all material respects with the same force and effect as though such
representation or warranty was made on such date, and all such representations
and warranties shall survive such Closing Date for a period of twelve (12)
months; provided, however, that if Kindred notifies Senior Health in writing of
an actual claim, which notice includes a detailed description of such claim,
prior to the expiration of such 12-month period, such representation or warranty
shall survive, only as relates to such claim, until the resolution of such
claim.
SECTION 6.02. Representations and Warranties by Florida Institute and
the New Operators. Florida Institute and the New Operator of each Facility
hereby represent and warrant as follows:
(a) As of the Closing Date, each of Florida Institute and the
designated New Operator of such Facility have full right, power and authority to
enter into this Agreement and to execute all Transaction Documents and all
necessary action has been taken to authorize the individual executing this
Agreement to do so. As of the Closing Date for each Facility, Florida Institute
and/or the designated New Operator of such Facility will have all necessary
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to execute, deliver and perform its obligations under the
Transaction Documents and to operate such Facility, to purchase and operate the
Transferred Assets and to carry on the businesses of such Facility as is now
being conducted and as is contemplated hereunder and under the Sublease
Agreement or Lease Agreement, as applicable.
(b) As of the Closing Date, Sun Coast is a duly formed not-for-profit
corporation in good standing in its jurisdiction of organization and in all
jurisdictions (including Florida) in which it presently conducts business, and
is authorized to conduct business in Florida.
(c) As of the Closing Date, Florida Institute is a duly formed Florida
limited liability company in good standing in Florida and in each jurisdiction
in which it presently conducts its business, and is authorized to conduct
business in Florida.
(d) As of the Closing Date, the designated New Operator of such
Facility is a duly formed limited liability company in good standing, and is
authorized to conduct business, in Florida.
26
(e) As of the Closing Date, the execution, delivery and/or performance
of obligations under this Agreement and all other Transaction Documents relating
to such Facility, to the extent that such documents have been executed and
delivered by Florida Institute and/or such New Operator, and the consummation of
the transactions contemplated thereby in accordance with the terms and
conditions thereof, are within Florida Institute's and/or such New Operator's
corporate or other powers, have been duly authorized by all necessary corporate
or other organizational action and do not and will not contravene the terms of
their respective governing documents. As of the Closing Date for a Facility,
each Transaction Document relating to such Facility when delivered will
constitute a legal, valid and binding obligation of Florida Institute and/or the
New Operator of such Facility, to the extent Florida Institute and/or such New
Operator are parties thereto, and is enforceable against Florida Institute and
such New Operator in accordance with its terms.
(f) All representations and warranties made by Florida Institute and
the New Operator of such Facility in this Agreement, the Sublease Agreement and
the Lease Agreements, when considered as a whole, are true and correct in all
material respects and do not contain any untrue statement of material fact
necessary to make statements contained therein not misleading in light of
circumstances under which they were made.
(g) No Person has acted directly or indirectly as a broker, finder or
financial advisor of Florida Institute or the New Operators in connection with
the Transaction Documents or the transactions contemplated thereby, and no
Person acting for or on behalf of Florida Institute or any New Operator is
entitled to receive any broker's, finder's or similar fee or commission in
respect thereof based in any way on any agreement, arrangement or understanding
made by or on behalf of Florida Institute or the New Operators.
(h) The New Operator of such Facility has sufficient available working
capital to consummate the Transaction contemplated hereby and by the Transaction
Documents, and to make all payments required of such New Operator under the
Transaction Documents.
(i) Unless otherwise indicated in a specific representation or
warranty contained herein, as of the Closing Date each representation and
warranty of Florida Institute and the New Operator of such Facility hereunder
(as such representation or warranty relates to the transfer of such Facility)
shall be true, complete and correct in all material respects with the same force
and effect as though such representation or warranty was made on such date, and
all such representations and warranties shall survive such Closing Date for a
period of twelve (12) months; provided, however, that if Kindred notifies
Florida Institute and/or the New Operator in writing of an actual claim, which
notice includes a detailed description of such claim, prior to the expiration of
such 12-month period, such representation or warranty shall survive, only as
relates to such claim, until the resolution of such claim..
(j) The organizational and ownership structure of Sun Coast, and its
respective direct and indirect subsidiaries (including Florida Institute and the
New Operators) is correctly set forth in Exhibit H attached hereto.
(k) As of the Closing Date, the designated New Operator of such
Facility has the insurance policies in full force and effect with responsible
and reputable insurance companies or associations in such amounts and against
such risks as set forth and in compliance with Exhibit H (the "Insurance
Policies").
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SECTION 6.03. Representations and Warranties by Kindred. Kindred
hereby represents and warrants as follows:
(a) Each of Kindred, Kindred South, and Kindred East has full right,
power and authority to enter into this Agreement and to execute, or to cause its
Affiliates to execute, all other Transaction Documents, and all necessary action
has been taken to authorize the individual executing this Agreement to do so.
(b) Kindred is a duly formed Delaware corporation in good standing in
its jurisdiction of organization. Kindred, Kindred South, Kindred East and/or
the appropriate Operator for each Facility has all necessary power and authority
to execute and deliver the Transaction Documents as appropriate. Kindred,
Kindred South, Kindred East and/or the appropriate Operator for each Facility,
as of the Closing Date, will have, all necessary power and authority to perform
its obligations under the Transaction Documents.
(c) The execution, delivery and/or performance of obligations under
this Agreement and all other Transaction Documents, to the extent that such
documents have been executed and delivered by Kindred, and the consummation of
the transactions contemplated by the Transaction Documents in accordance with
the terms and conditions thereof, are within Kindred's corporate or other
powers, have been duly authorized by all necessary corporate or other
organizational action and do not and will not contravene the terms of their
respective governing documents. As of the Closing Date with respect to a
Facility, the execution, delivery and/or performance of obligations under this
Agreement and all other Transaction Documents, to the extent that such documents
have been executed and delivered by Kindred South, Kindred East or an Operator,
and the consummation of the transactions contemplated thereby in accordance with
the terms and conditions thereof, are within Kindred South, Kindred East and/or
such Operator's corporate or other powers, have been duly authorized by all
necessary corporate or other organizational action and do not and will not
contravene the terms of their respective governing documents. Each Transaction
Document when delivered will constitute a legal, valid and binding obligation of
Kindred enforceable against each of such companies in accordance with its terms.
As of the Closing Date, each Transaction Document when delivered will constitute
a legal, valid and binding obligation of Kindred, Kindred South, Kindred East
and/or any Operator that is a party thereto, enforceable against each of such
companies in accordance with its terms.
(d) Kindred has provided the New Operators with Kindred's Operational
Analysis report for the first three months of 2003 for each of the Facilities
(collectively, the "G/L 4000 Reports"). The G/L 4000 Reports accurately
summarize the balances contained in the general ledger for each of the
Facilities and are based on the books and records maintained at the Facilities,
and no material adverse change has occurred since the G/L 4000 Reports were
provided.
(e) The Operators (i) own the Transferred Assets relating to the
Facilities, (ii) have full right, power and authority to sell such Transferred
Assets, and (iii) such Transferred Assets are free and clear of all liens and
encumbrances.
(f) To Kindred's knowledge, (i) Kindred South is not in default under
the ground lease relating to Casa Xxxx Rehabilitation & Extended Care, (ii)
Kindred East is not in default under the Fairhaven Lease or the lease relating
to the parking lot at the Facility known as
00
Xxxxxxxxx Xxxxx and (iii) none of Kindred's Affiliates are in default under the
Ventas Master Lease with respect to any of the Ventas Facilities.
(g) Except as disclosed on Schedule 6.03(g), which schedule will be
updated immediately prior to Closing, to Kindred's knowledge, (1) all portions
of the Facilities and all operations conducted thereon, are in substantial
compliance with Environmental Laws, and (2) there are no conditions on, about,
beneath or arising from any portion of the Facilities which would be likely to
give rise under any Environmental Laws to any liability, the imposition of a
statutory lien or require any remediation.
(h) Except as disclosed on Schedule 6.03(g), to Kindred's knowledge,
Kindred has not used, handled, generated, processed, treated, stored,
transported to or from, released, discharged, or disposed of on, about or
beneath any portion of the Facilities any material amount of Hazardous
Substances, including medical wastes, except in compliance with Environmental
Laws. Except as disclosed on Schedule 6.03(g), to Kindred's knowledge, the
Facilities have no (1) above or underground storage tanks or (2) electrical
transformers containing or contaminated with PCB's that are currently leaking.
Except as disclosed on Schedule 6.03(g), to Kindred's knowledge, there is no
friable asbestos or asbestos-containing material on any portion of the
Facilities that has not been maintained in a manner prudent for facilities of a
similar nature to the Facilities.
(i) Except as disclosed on Schedule 6.03(g), to Kindred's knowledge,
Kindred has received no written notice of (i) any governmental or regulatory
action instituted against Seller or any portion of the Facilities pursuant to
any Environmental Laws; or (ii) any claim by any person (including any
governmental or regulatory agency) against Kindred that alleges a violation of
Environmental Laws. If Kindred receives a written notice of the type described
in this paragraph (j) after the date of this Agreement but prior to Closing,
Kindred shall immediately so advise Senior Health.
(j) Kindred, Kindred South, Kindred East or the Operators are not
parties to any collective bargaining agreements, employee benefit plans and
other labor and employment agreements relating to the Facilities, except for
those agreements included in Schedule 3.05.
(k) To Kindred's knowledge, Kindred, Kindred South, Kindred East and
the Operators are in compliance with Florida Medicaid lease bond requirements
with respect to the Facilities.
(1) To Kindred's knowledge, Kindred, Kindred South, Kindred East and
the Operators are in compliance with Medicare laws, regulations and conditions
for participation in the Medicare program with respect to the Facilities.
(m) To Kindred's knowledge, all reimbursement claims submitted in
respect of the Facilities are true and accurate.
(n) All applicable tax returns have been filed and all applicable
taxes, including Florida sales taxes (including sales taxes on rent under the
leases relating to the Facilities) have been paid.
29
(o) To Kindred's knowledge, no breaches or claims have been made or
are being threatened under contracts with residents, other than any such
breaches or claims that will not have a Material Adverse Effect.
(p) All representations and warranties made by Kindred in this
Agreement, and by Kindred South and the Operators in the Sublease Agreement and
Lease Agreements, when considered as a whole are true and correct in all
material respects and do not contain any untrue statement of material fact
necessary to make statements contained therein not misleading in light of
circumstances under which they were made.
(q) Unless otherwise indicated in a specific representation or
warranty contained herein, as of the Closing Date each representation and
warranty of Kindred, Kindred South, Kindred East and/or the Operator of such
Facility hereunder (as such representation or warranty relates to the transfer
of such Facility) shall be true, complete and correct in all material respects
as of the date hereof and with the same force and effect as though such
representation or warranty was made on such date, and all such representations
and warranties shall survive such Closing Date for a period of twelve (12)
months; provided, however, that if Florida Institute or the New Operator of a
Facility notifies Kindred in writing of an actual claim, which notice includes a
detailed description of such claim, prior to the expiration of such 12-month
period, such representation or warranty shall survive, only as relates to such
claim, until the resolution of such claim.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Kindred's Obligations. Kindred shall not
be obligated to consummate any transfer pursuant to Section 2.02(b) hereof
unless each of the following conditions has been fulfilled or waived by Kindred:
(a) Closing of the Ventas Acquisition. The Ventas Acquisition shall
have been completed and closed.
(b) Lenders' Consents. Kindred shall have obtained the written consent
of the required lenders under each of its $120 million credit agreement, dated
as of April 20, 2001, and its $300 million credit agreement, dated as of April
20, 2001, to the extent determined in the sole discretion of Kindred to be
required, to Kindred's consummation of the transactions contemplated hereby.
(c) Lease Financing. Each of the New Operators shall have secured an
adequate working capital loan to enable it to consummate the Transaction and to
perform its obligations hereunder and under the Lease Agreements and Sublease
Agreement relating to the Facilities, as determined by Kindred in its sole
discretion, which loan may be secured by post-closing accounts receivable of the
Facilities, subject to the restrictions in the last paragraph of Section 5.05.
(d) WKTM Acquisition Financing. WKTM shall have secured a financing
commitment to enable it to consummate the WKTM Acquisition.
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(e) Compliance with Laws; No Adverse Action or Decision. Since the
date hereof, (i) no Law shall have been promulgated, enacted or entered that
restrains, enjoins, prevents, materially delays, prohibits or otherwise makes
illegal the performance of any of the Transaction Documents; (ii) no preliminary
or permanent injunction or other order that restrains, enjoins, prevents,
delays, prohibits or otherwise makes illegal the performance of any of the
Transaction Documents shall have been issued and remain in effect, except for
such injunctions that, if obtained, could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (iii) no
Proceeding (other than any threatened or pending Proceeding instituted by or
against Ventas or any of its Affiliates, or in which Ventas or any of its
Affiliates participates) shall have been instituted that seeks to restrain,
enjoin, prevent, delay, prohibit or otherwise make illegal the performance of
any of the Transaction Documents.
(f) Definitive Documents. Definitive Transaction Documents necessary
to consummate the Transaction as contemplated herein shall have been prepared,
negotiated and, to the extent applicable, executed by the parties, and such
Transaction Documents shall be reasonably satisfactory to Kindred. All
Transaction Documents, to the extent applicable to such Facility, shall have
been executed by the parties thereto on or prior to the Closing Date, shall not
have been modified, shall be in effect and the consummation of the transfer of
such Facility as contemplated by Section 2.01 hereof shall not be stayed, and
all conditions to the obligations of the parties under the Transaction Documents
relating to such transfer shall have been satisfied or effectively waived. All
corporate and other proceedings to be taken in connection with the transfer of
such Facility as contemplated by Section 2.01 hereof by the New Operators shall
have been completed in form and substance reasonably satisfactory to Kindred,
and Kindred shall have received all such counterpart originals or certified or
other copies of such documents.
(g) WKTM Acquisition Purchase Agreement. A definitive purchase
agreement necessary to consummate the WKTM Acquisition shall have been prepared,
negotiated and executed by the parties on or prior to the Closing Date, and such
agreement shall not have been terminated or breached as of the Closing Date.
(h) Delivery. The New Operators shall have made all deliveries
required to be made at the Closing, as described in Section 2.03(b) hereof.
(i) Approvals. Florida Institute and/or the New Operator for such
Facility shall have received and delivered to Kindred copies of (i) all material
Regulatory Approvals (other than waiting periods imposed by applicable Law as
referred to later in this paragraph), which shall have become final and
non-appealable, except that the licenses to be issued by the Agency for Health
Care Administration may be provided within 10 days of Closing, provided that
Florida Institute and/or the New Operators have provided Kindred with
satisfactory evidence that such licenses will be issued upon receipt of an
executed Lease Agreement or Sublease Agreement, as applicable and (ii) all other
material approvals, permits, authorizations, exemptions, consents, licenses and
agreements from other third parties that are necessary or appropriate to permit
the transactions contemplated hereby and to permit Florida Institute and/or the
New Operators to carry on the business of the Facilities after such transactions
in a manner not materially inconsistent with the manner in which it was carried
on prior to the Closing Date (together with the Regulatory Approvals, the
"Approvals"), which Approvals shall not contain any condition or restriction
that, in Kindred's judgment, diminishes the benefit of the Transaction to
Kindred. All waiting periods imposed by applicable Law in connection with the
transactions in respect of the transfer of such Facility shall have expired or
been terminated without any action having been
31
taken by any court of competent jurisdiction restraining, preventing or imposing
materially adverse conditions upon such transactions.
(j) Representations and Warranties; Covenants. The representations and
warranties of Senior Health set forth in Section 6.01 and of Florida Institute
and the New Operators set forth in Section 6.02 hereof shall have been true and
correct in all respects on and as of the date hereof and at the time immediately
prior to the Closing (except where such representation and warranty speaks by
its terms of "at Closing," in which case it shall be true and correct as of the
time of Closing) as if made on the date of Closing (except where such
representation and warranty speaks by its terms of a different date, in which
case it shall be true and correct as of such date), except to the extent that
such inaccuracies in any such representation or warranty have not had, and would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Florida Institute and the New Operators shall have performed in
all material respects all obligations and complied with all agreements,
undertakings, covenants and conditions required to be performed hereunder at or
prior to the Closing.
(k) Employment Matters. Florida Institute or the New Operator for such
Facility, shall have offered employment to all of employees at each Facility in
the manner and on terms as set forth in Article IV at least five (5) days prior
to the Closing Date, and, as of the Closing Date, Florida Institute or the New
Operator for such Facility shall have hired all such employees that accept its
offer.
(l) Insurance. The designated New Operator for such Facility shall
have in effect the Insurance Policies relating to each Facility with responsible
and reputable insurance companies or associations in such amounts and against
such risks as set forth and in compliance with Exhibit I, and certificates of
insurance (on XXXXX Form 27 where available) in form and substance satisfactory
to Kindred shall have been provided to Kindred.
(m) Ancillary Service Agreements. Kindred or an Affiliate thereof
shall have entered into agreements with Florida Institute or the New Operator of
each Facility, pursuant to which Kindred and/or its designee will provide
pharmacy, rehabilitation therapy and other ancillary services to such Facility
substantially in the form attached hereto as Exhibit F (the "Ancillary Service
Agreements").
(n) Security Deposit. Florida Institute or the New Operator of each
Facility shall have deposited the Security Deposit with Kindred, as security for
the faithful performance and observance by the New Operators of the Facilities
of the terms, provisions and conditions of the applicable Lease Agreement or
Sublease Agreement relating to such Facilities.
(o) Florida Institute Commissioned Reports. Florida Institute or the
New Operator of each Facility shall have delivered to Kindred copies of all
Florida Institute Commissioned Reports.
SECTION 7.02. Conditions to the New Operators' Obligations. Each New
Operator shall not be obligated to consummate the Transaction unless each of the
following conditions has been fulfilled with respect to each Facility, or such
condition has been waived by Florida Institute or the New Operator:
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(a) Definitive Documents. Definitive Transaction Documents necessary
to consummate the transfer of each Facility as contemplated herein shall have
been prepared, negotiated and, to the extent applicable, executed by the
parties, and such Transaction Documents shall be reasonably satisfactory to
Florida Institute or such New Operator. All Transaction Documents, to the extent
applicable to such Facility, shall have been executed by the parties thereto on
or prior to the Closing Date, shall not have been modified, shall be in effect
and the consummation of the transfer of such Facility as contemplated by Section
2.01 hereof shall not be stayed, and all conditions to the obligations of the
parties under the Transaction Documents relating to such transfer shall have
been satisfied or effectively waived. All corporate and other proceedings to be
taken in connection with the transfer of each Facility as contemplated by
Section 2.01 hereof by Kindred and/or its Affiliates shall have been completed
in form and substance reasonably satisfactory to Florida Institute or such New
Operator, and Florida Institute or such New Operator shall have received all
such counterpart originals or certified or other copies of such documents.
(b) Delivery. Kindred shall have made all deliveries required to be
made at the Closing as described in Section 2.03(a) hereof.
(c) Approvals. Kindred and/or the Operator for such Facility shall
have received and delivered to Florida Institute and the New Operator for such
Facility copies of (i) all material Regulatory Approvals (other than waiting
periods imposed by applicable Law as referred to later in this paragraph), which
shall have become final and non-appealable and (ii) any required Sublease
Consents, which shall not contain any condition or restriction that, impairs
Florida Institute's and/or the New Operator for such Facility's ability to carry
on its business at each Facility. All waiting periods imposed by applicable Law
in connection with the transactions in respect of the transfer of each Facility
shall have expired or been terminated without any action having been taken by
any court of competent jurisdiction restraining, preventing or imposing
materially adverse conditions upon such transactions.
(d) Representations and Warranties, Covenants. The representations and
warranties of Kindred set forth in Section 6.03 hereof shall have been true and
correct in all respects on and as of the date hereof and at the time immediately
prior to the Closing (except where such representation and warranty speaks by
its terms of "at Closing," in which case it shall be true and correct as of the
time of Closing) as if made on the date of Closing (except where such
representation and warranty speaks by its terms of a different date, in which
case it shall be true and correct as of such date), except to the extent that
such inaccuracies in any such representation or warranty have not had, and would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Kindred shall have performed in all material respects all
obligations and complied with all agreements, undertakings, covenants and
conditions required to be performed by it hereunder at or prior to the Closing.
(e) Employment Matters. Kindred shall have terminated or transferred
the employees of each Facility that declined to accept the offer of employment
from Florida Institute or the New Operator pursuant to Section 7.01(k), as set
forth in a notice from Florida Institute to Kindred on the Closing Date.
SECTION 7.03. Conditions to the New Operator's Obligations. FI-The
Oaks, LLC shall not be obligated to proceed with the closing relating to The
Oaks at Avon Facility unless and until Kindred has delivered to FI-The Oaks LLC
a Consent and Estoppel Certificate
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from the lessor under the Fairhaven Lease in form and substance reasonably
acceptable to FI-The Oaks LLC, provided, however, that the Closing of this
Agreement with respect to all other Facilities besides The Oaks at Avon shall
proceed whether or not Kindred has delivered the aforesaid Consent and Estoppel
Certificate (in which event the Purchase Price shall be reduced by the portion
of the Purchase Price allocated to The Oaks at Avon on Schedule 2.03(b)(ii)). In
the event that Kindred delivers such Consent and Estoppel Certificate to FI-The
Oaks, LLC after the Closing hereunder, then the closing of this Agreement
relating to The Oaks at Avon, including payment of the portion of the Purchase
Price allocated to The Oaks at Avon on Schedule 2.03(b)(ii), shall take place
within five (5) Business Days after delivery thereof to Senior Health.
ARTICLE VIII
COVENANTS
SECTION 8.01. Consummation of the Transaction. (a) Kindred agrees to,
and to cause the Operators of each Facility to, deliver any and all Transaction
Documents necessary or appropriate to effectuate this Agreement and the
transactions referred to herein or contemplated hereby or reasonably requested
by the other party to perfect or evidence their rights hereunder, to use
commercially reasonable efforts to satisfy the conditions referred to in
Sections 7.01 (a) and 7.03, and to use commercially reasonable efforts to effect
the Closings with respect to each Facility within ninety (90) days following the
execution of this Agreement.
(b) Florida Institute and the New Operators of each Facility agree to
deliver any and all Transaction Documents necessary or appropriate to effectuate
this Agreement and the transactions referred to herein or contemplated hereby or
as are reasonably requested by Kindred to perfect or evidence their or their
Affiliates' rights hereunder, to use commercially reasonable efforts to satisfy
the conditions referred to in Section 7.01, and to use commercially reasonable
efforts to effect the Closings with respect to each Facility within ninety (90)
days following the execution of this Agreement.
SECTION 8.02. Conduct of Business. From the date of this Agreement
until the Closing Date, Kindred shall, and shall cause its Affiliates to, (i)
use reasonable efforts to maintain, manage and operate such Facility in
accordance with applicable law in all material respects and consistent with its
historical practices and (ii) conduct its business with respect to such
Facilities in the ordinary course.
SECTION 8.03. Insurance. Florida Institute or each New Operator of a
Facility shall maintain the Insurance Policies relating to such Facility in full
force and effect with responsible and reputable insurance companies or
associations in such amounts and against such risks as set forth and in
compliance with Exhibit I, and in any event at levels no lower than (and with
deductibles no greater than) the levels of insurance and deductibles maintained
with other facilities operated and/or managed by Sun Coast, Florida Institute,
Senior Health and their respective Affiliates.
SECTION 8.04. Service Provider Agreements. From the date of this
Agreement until the Closing Date, Kindred, Florida Institute and the New
Operators shall, and each shall cause their respective Affiliates to, negotiate
in good faith to prepare, negotiate and
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execute Ancillary Service Agreements with each Facility in substantially the
form attached hereto as Exhibit F.
SECTION 8.05. Sale or Use Tax. Kindred agrees to, or to cause the
Operators to, pay any and all Florida sales or use tax due in connection with
the Transaction, and to provide the New Operators with a copy of the state sales
tax returns evidencing such payment. Kindred represents and warrants that it has
paid all tangible personal property taxes and all sales taxes due on rents.
SECTION 8.06. Trade Names. Florida Institute and each New Operator
agrees that immediately following Closing, (1) it shall change the
non-geographical names of all Facilities to names that are not recognizably
similar to their current names, (2) it shall not use, in any manner, any trade
names relating to the Facilities that are currently used by Kindred or any of
its Affiliates, (3) it shall not use the name "Kindred" in any manner in its
business operations and (4) it will cause the names of the New Operators that
operate the Facilities not to include non-geographical words or names that are
recognizably similar to the current names of the Facilities.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Kindred Indemnification Obligations. In addition to all
other indemnities contained in this Agreement, Kindred, Kindred South, Kindred
East, and, with respect to each Facility, the Operator of such Facility jointly
and severally agree to indemnify, defend and hold harmless Senior Health, the
New Operators of the Facilities and each of their respective partners,
Affiliates and Representatives (collectively, the "Florida Institute Indemnified
Parties") from and against any and all Losses, incurred by, imposed upon or
asserted against any of the Florida Institute Indemnified Parties as a result
of, relating to or arising out of (a) a breach by Kindred of its representations
or warranties under this Agreement or (b) any debts, liabilities or other
obligations of Kindred and/or the Operators that are not assumed by the New
Operators pursuant hereto; provided that no indemnification shall be available
under this Section 9.01 (1) if the Closing has not occurred (it being understood
that the Florida Institute Indemnified Parties' sole remedy in the event that
the Agreement is terminated prior to the Closing by Kindred shall be governed by
Section 11.02(b)), (2) if such Losses claimed hereunder are determined by a
court of competent jurisdiction to have resulted solely from fraud, willful
misconduct or gross negligence of any Florida Institute Indemnified Party, (3)
to the extent that Kindred's aggregate liability under clause (a) of this
Section 9.01 exceeds $1,000,000, or (4) if such Florida Institute Indemnified
Party has not presented such claim for indemnification within twelve (12) months
of the Closing Date; provided that if such Florida Institute Indemnified Party
notifies Kindred, Kindred South, Kindred East or the Operator of such Facility
in writing of an actual claim, which notice includes a detailed description of
such claim, prior to the expiration of such 12-month period, such right of
indemnification shall survive, only as relates to such claim, until the
resolution of such claim.
SECTION 9.02. Florida Institute Indemnification Obligations. In
addition to all other indemnities contained in this Agreement, Florida Institute
and, with respect to each
35
Facility, the New Operator of such Facility, agree to indemnify, defend and hold
harmless Kindred and each of its partners, Affiliates and Representatives
(collectively, the "Kindred Indemnified Parties") from and against any and all
Losses, incurred by, imposed upon or asserted against any of the Kindred
Indemnified Parties as a result of, relating to or arising out of (a) a breach
by Senior Health of its representations or warranties under Section 6.01 hereof,
or its covenants or obligations under this Agreement, (b) a breach of the New
Operators' representations or warranties under Section 6.02 hereof, or the New
Operators' or Florida Institute's covenants or obligations under this Agreement,
(c) the New Operators' failure to maintain the Facility Records or provide
Kindred and its Affiliates access thereto or (d) the operation of each Facility
from and after the Closing Date therefor, except to the extent that such Losses
are determined in a non-appealable decision of a court of competent jurisdiction
to have resulted solely from fraud, willful misconduct or gross negligence of
such Kindred Indemnified Party or resulting from a Kindred Indemnified Party's
own acts or omissions from and after such Closing Date; provided that Florida
Institute's and the New Operators' aggregate liability under this Section 9.02
(except with respect to Losses relating to Assumed Facility Contracts and
employee benefit plans, programs and policies described in Section 4.02) shall
not exceed $1,000,000; and provided further that Kindred's right to present any
claim for indemnification under this Section 9.02 shall terminate on the date
that is twelve (12) months after the Closing Date (except with respect to Losses
relating to Assumed Facility Contracts and employee benefit plans, programs and
policies described in Section 4.02); provided however that if such Kindred
Indemnified Party notifies the New Operator of such Facility in writing of an
actual claim, which notice includes a detailed description of such claim, prior
to the expiration of such 12-month period, such right of indemnification shall
survive, only as relates to such claim, until the resolution of such claim.
Florida Institute and, with respect to each Facility, the New Operator of such
Facility shall be jointly and severally liable for all Losses indemnified
hereunder.
SECTION 9.03. Senior Health Indemnification Obligations. In addition
to all other indemnities contained in this Agreement, Senior Health agrees to
indemnify, defend and hold harmless the Kindred Indemnified Parties from and
against any and all Losses, incurred by, imposed upon or asserted against any of
the Kindred Indemnified Parties as a result of, relating to or arising out or
for, from and against any and all costs, liabilities and expenses, including
reasonable attorneys' fees, which it may incur as a result of (a) breach by
Senior Health of its representations and warranties under Section 6.01 hereof,
(b) breach of Senior Health's covenants and obligations under this Agreement,
including without limitation those set forth in Section 5.06 hereof; and (c)
breach of the New Operators' obligations under the Assumed Facility Contracts
and employee benefit plans, programs and policies described in Section 4.02;
provided, however, that, except as otherwise set forth in this paragraph, in no
event shall Senior Health be deemed to indemnify any of the Kindred Indemnified
Parties as to any obligations of Florida Institute or the New Operators under
the Lease Agreements or Sublease Agreement, provided further that Senior
Health's aggregate liability for the matters in clause (a) shall not exceed
$1,000,000.
SECTION 9.04. Kindred Indemnification from Litigation. In addition to
all other indemnities contained in this Agreement, Kindred, Kindred South,
Kindred East and, with respect to each Facility, the Operator of such Facility
jointly and severally agree to indemnify, defend and hold harmless the Florida
Institute Indemnified Parties from and against any and all Losses arising out of
or attributable to Kindred, Kindred South, Kindred East or the Operators'
ownership, use, operation or management of the Facilities prior to Closing
including, without
36
limitation, any and all litigation for malpractice or similar claims whether in
tort or in contract, provided that such indemnity shall not cover liabilities
and costs explicitly assumed by any of Senior Health, Florida Institute or any
of the New Operators pursuant to Articles III and IV hereunder.
SECTION 9.05. Florida Institute Indemnification from Litigation. In
addition to all other indemnities contained in this Agreement, Florida Institute
and, with respect to each Facility, the New Operator of such Facility, jointly
and severally agree to indemnify, defend and hold harmless the Kindred
Indemnified Parties from and against any and all Losses arising out of or
attributable to Florida Institute, Sun Coast, Senior Health Gold Coast or the
New Operators' ownership, use, operation or management of the Facilities from
and after Closing, including, without limitation, any and all litigation for
malpractice or similar claims whether in tort or in contract, provided that such
indemnity shall not cover liabilities and costs explicitly retained by any of
Kindred or any of the Operators pursuant to Articles III and IV hereunder.
ARTICLE X
EFFECT; TERMINATION
SECTION 10.01. Termination of the Agreement. (a) This Agreement may be
terminated by notice in writing at any time prior to the Closing by:
(i) Either Kindred or Florida Institute, if the Closing shall not have
occurred on or before June 30, 2003;
(ii) Kindred, if (1) there shall have been a material breach by Senior
Health, Florida Institute or any New Operator of any material
representation, warranty, covenant or agreement contained in this Agreement
that (a) has not been cured within ten (10) days following receipt by such
party of written notice from Kindred of such breach or (b) is not capable
of being cured, or (2) Kindred determines, in its sole discretion, that any
condition set forth in Section 7.01 hereof is not capable of being
satisfied;
(iii) Florida Institute, if there shall have been a breach by Kindred
of any material representation, warranty, covenant or agreement contained
in this Agreement that (a) has not been cured within ten (10) days
following receipt by Kindred of written notice from Florida Institute of
such breach or (b) is not capable of being cured;
(iv) Mutual agreement in writing by Kindred and Florida Institute.
(b) If this Agreement is terminated in accordance with Section 10.01
(a) hereof and the transactions contemplated hereby are not consummated, this
Agreement shall become null and void and of no further force and effect except
that (i) the terms and provisions of Section 11.02(b) hereof shall remain in
full force and effect and (ii) any termination of this Agreement shall not
relieve any party hereto from any liability for any breach of its obligations
hereunder.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. (a) Any notice, consent, approval or other
communication (a "Notice") required to be given under this Agreement or pursuant
to law shall be in writing and, unless otherwise required by law, shall be
either personally delivered (against a receipt), or sent by reputable overnight
courier service, given by registered or certified mail, return receipt
requested, postage prepaid, or by facsimile if accompanied by electronic
acknowledgement of receipt, addressed to the respective parties at the following
addresses:
If to Kindred:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President - Health Services Division
Fax: (502) 596-
with copies to:
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
and to
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
and to
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
and to
Xxxxx Xxxxxxxx
XX Xxxxxx Chase Bank
000 Xxxxxxx Xxxxxxxxxx Xxxx-0/XXX0
Xxxxxx, XX 00000
Fax:
38
and to
Xxxxx Xxx
XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax:
If to Florida Institute:
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx, President
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx & Xxxxx, P.C.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxx Center
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esquire
Fax: (000) 000-0000
(b) Either party may from time to time specify in writing a new
address to which any such Notice intended for such party shall thereafter and
until further Notice be addressed.
(c) Any Notice given pursuant hereto shall be deemed to have been
received on delivery, if personally delivered or delivered by reputable
overnight courier service, or three (3) business days after the mailing thereof
if mailed in accordance with the terms hereof, such mailing to be effected by
depositing the Notice in any post office, branch post office or official
depository regularly maintained by the United States Postal Service.
SECTION 11.02. Payment of Expenses. (a) Each party will pay its own
expenses, including legal expenses, incurred in connection with the proposed
transaction, including, without limitation, all expenses incident to the
negotiation, preparation and performance of this Agreement.
(b) In the event that this Agreement is terminated pursuant to (i)
Section 10.01(a)(ii)(2) as a result of a determination by Kindred that any
condition set forth in Sections 7.01(a) or 7.01(b) hereof is not capable of
being satisfied or (ii) Section 10.01(a)(iii) hereof, upon presentment of
receipts, Kindred will reimburse up to $500,000 of reasonable out-of-pocket
expenses (including reasonable fees and expenses of outside counsel) incurred by
Florida Institute in pursuing the Transaction, which amount shall be payable in
immediately available funds to an account or accounts designated by Florida
Institute.
SECTION 11.03. Diligence Materials. (a) Kindred has delivered to
Florida Institute all plans, maps, descriptions, permits, certifications,
licenses, approvals, environmental
39
audits, and other diligence materials (the "Diligence Materials") respecting the
Facilities, as described in Schedule 11.03, which material shall be returned to
Kindred by Florida Institute and/or the Operators if Closing is not completed.
For purposes of this Section 11.03, Diligence Materials shall be deemed to
include matters disclosed on Schedules 6.03(g) and Schedule 11.03 to this
Agreement and, as of the Closing Date, any Florida Institute Commissioned
Reports. No Senior Health Indemnified Party shall make a claim under this
Agreement, for breach of representation or warranty, indemnification or
otherwise, in respect of a fact, circumstance or condition that is disclosed in
such Diligence Materials.
(b) Florida Institute and/or each New Operator agrees to deliver
copies of all Florida Institute Commissioned Reports to Kindred, as soon as they
are available and in any event before Closing. At Closing, Florida Institute
shall deliver a certificate of an officer of Florida Institute to Kindred
certifying, to the best of such person's knowledge, (i) as to a complete list of
the Florida Institute Commissioned Reports and (ii) that Florida Institute
and/or each New Operation has delivered copies of each such Florida Institute
Commissioned Report to Kindred.
SECTION 11.04. Entire Agreement; Amendment; Waiver. This Agreement and
the documents described herein or attached or delivered pursuant hereto set
forth the entire agreement between the parties hereto with respect to the
transactions contemplated by this Agreement. Any provision of this Agreement may
only be amended, modified or supplemented in whole or in part at any time by an
agreement in writing among the parties hereto executed in the same manner as
this Agreement; provided that Section 5.06 hereof may not be amended, changed,
waived, discharged or terminated with respect to any Leased Facility, unless
such amendment, change, waiver, discharge or termination is in writing and
signed by the Operator of such Facility. No failure on the part of any party to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise by any party of any right
preclude any other or future exercise thereof or the exercise of any other
right. No investigation by a party hereto of any other party hereto prior to or
after the date hereof shall stop or prevent the exercise of any right hereunder
or be deemed to be a waiver of any such right.
SECTION 11.05. Assignment. Except as otherwise provided herein,
neither this Agreement nor the rights, duties or obligations arising hereunder
shall be assignable or delegable by any party hereto without the express prior
written consent of the other parties hereto; provided that any such assignment
by Senior Health shall not relieve it of its obligations hereunder.
SECTION 11.06. Joint Venture; Third Party Beneficiaries. Nothing
contained herein shall be construed as forming a joint venture or partnership
between the parties hereto with respect to the subject matter hereof. The
parties hereto do not intend that any third party shall have any rights under
this Agreement, except (i) to the extent that any Operators and/or New Operators
are explicitly afforded rights under this Agreement, such provisions shall inure
to the benefit of and be enforceable by such Persons, and (ii) that the
provisions of Article XI shall inure to the benefit of and be enforceable by
each Kindred Indemnified Party and each Florida Institute Indemnified Party.
SECTION 11.07. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to constitute an original, but
all of which together shall constitute one and the same document.
40
SECTION 11.08. Governing Law. This Agreement shall be governed in
accordance with the laws of the State of Florida applicable to contracts made
and to be performed in that State. The parties hereto agree that the appropriate
and exclusive forum for any disputes arising out of this Agreement shall be any
U.S. District Court or any state court located in Florida, and, the parties
hereto irrevocably consent to the exclusive jurisdiction of such courts, and
agree to comply with all requirements necessary to give such courts
jurisdiction. The parties hereto further agree that the parties will not bring
suit with respect to any disputes arising out of this Agreement except as
expressly set forth below for the execution or enforcement of judgment, in any
jurisdiction other than the above specified courts. Each of the parties hereto
irrevocably consents to the service of process in any action or proceeding
hereunder by the mailing of copies thereof by registered or certified airmail,
postage prepaid, to the address specified in Section 11.01(a) hereof. The
foregoing shall not limit the rights of any party hereto to serve process in any
other manner permitted by the Law or to obtain execution of judgment in any
other jurisdiction. The parties further agree, to the extent permitted by Law,
that final and non-appealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified or exemplified copy of which shall be conclusive evidence of the
fact and the amount of indebtedness. The parties agree to waive any and all
rights that they may have to a jury trial with respect to disputes arising out
of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
41
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the day
and year first set forth above.
KINDRED HEALTHCARE OPERATING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
KINDRED NURSING CENTERS SOUTH, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
KINDRED NURSING CENTERS EAST, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
SENIOR HEALTH MANAGEMENT, LLC
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Manager and President
FLORIDA INSTITUTE FOR LONG TERM CARE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-BAY POINTE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-BOCA RATON, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-BROWARD NURSING, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-CAPE CORAL, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-CARROLWOOD CARE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-CASA XXXX, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-EVERGREEN XXXXX, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-HIGHLAND PINES, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-HIGHLAND TERRACE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-PALM BEACHES, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-POMPANO REHAB, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-XXXXXXX REHAB, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-TAMPA, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-THE ABBEY, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-THE OAKS, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-TITUSVILLE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-WALDEMERE, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-WINDSOR XXXXX, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
FI-XXXXXXX COURT, LLC
By: /s/ Xxxxx X. Xxxxxxx, Jr.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Jr.
Title: President and Manager
EXHIBIT A
FORM OF FAIRHAVEN SUBLEASE AGREEMENT
AGREEMENT OF SUBLEASE
between
Kindred Nursing Centers East, L.L.C., as Sublandlord
and
FI-The Oaks, LLC, as Subtenant
dated as of June 30, 2003
TABLE OF CONTENTS
Page
----
1. Definitions .............................................................1
2. Subleasing of Premises ..................................................4
3. Condition of Premises....................................................4
4. Term of Sublease ........................................................4
5. Intentionally Omitted ...................................................5
6. Rent.....................................................................5
7. Use .....................................................................7
8. Subordination to and Incorporation of the Prime Lease ...................7
9. Attornment and Non-Disturbance..........................................13
10. Quiet Enjoyment ........................................................13
11. Representations, Warranties and Covenants...............................14
12. Services and Repairs ...................................................16
13. Enforcement of Prime Lease..............................................16
14. Assignment, Subletting and Encumbrances.................................17
15. Indemnification ........................................................18
16. Alterations ............................................................19
17. Insurance ..............................................................19
18. Security ...............................................................20
19. Broker .................................................................20
20. Notices ................................................................20
21. No Waivers .............................................................22
22. Consent ................................................................23
23. Arbitration ............................................................23
24. Operations Transfer ....................................................23
25. Financial Statements ...................................................23
26. Miscellaneous ..........................................................25
i
AGREEMENT OF SUBLEASE (this "Sublease"), made as of the 30th day of June,
2003, between Kindred Nursing Centers East, L.L.C. ("Sublandlord"), a Delaware
limited liability corporation having an office at 000 Xxxxx Xxxxxx Xx.,
Xxxxxxxxxx, XX 00000 and FI-The Oaks, LLC, a Florida limited liability company
("Subtenant"), having an office at XX 00 X. Xxxx Xxxx, XX 00000, the sole member
of which is Florida Institute for Long Term Care, LLC ("Parent"), a Delaware
limited liability company, having an office at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx
000X, Xx. Xxxxxxxxxx, XX 00000.
WITNESSETH
WHEREAS, pursuant to that certain Operations Transfer Agreement (the
"Operations Transfer Agreement") dated as of June 18, 2003, the parties thereto
agreed to enter into this Sublease for a skilled nursing facility, and certain
leases of various other premises used as skilled nursing or assisted living
facilities located in the State of Florida,
WHEREAS by agreement of lease annexed hereto as Exhibit A and made a part
hereof (the "Prime Lease"), between Fairhaven South, Inc., a Florida corporation
("Prime Landlord") and First Health Care Corporation ("FHC"), as tenant, Prime
Landlord leased to FHC certain premises located at Avon Park, Florida (the
"Premises") as more particularly described in Exhibit B attached hereto and all
of the equipment and all other tangible property (the "Equipment") as more
particularly described in Exhibit C attached hereto,
WHEREAS pursuant to that certain Assignment and Assumption of Leases, dated
April 30, 1998, FHC assigned its interest in the Prime Lease to Kindred
Healthcare, Inc. (formerly known as Vencor Healthcare, Inc.) ("KHI"); pursuant
to that other certain Assignment and Assumption of Leases, dated April 30, 1998,
KHI assigned its interest in the Prime Lease to Kindred Healthcare Operating
Inc. (formerly known as Vencor Healthcare Operating, Inc.) ("XXXX"; KHI and XXXX
shall collectively be known as "Kindred"); and pursuant to that other certain
Assignment and Assumption of Leases, dated April 30, 1998, XXXX assigned its
interest in the Prime Lease to Sublandlord, and
WHEREAS, Sublandlord desires to sublease to Subtenant, and Subtenant
desires to hire from Sublandlord, all of the Premises and Equipment on the terms
and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
it is agreed as follows:
1. Definitions. In this Sublease, the following terms shall have the following
meanings:
"Additional Rent" shall mean (a) all utilities charges for the
Premises, including, without limitation, all water, sewer, electricity, gas,
communications and all other charges, (b) all taxes and insurance premiums
payable by Sublandlord under the Prime Lease for the Premises, and (c) all other
costs, charges, sums and deposits for the Premises and Equipment payable by
Sublandlord under the Prime Lease and by Subtenant under this Sublease.
"Affiliate" shall mean with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all partners,
directors, officers and members
of such Person), controlled by or under direct or indirect common control with
any such Person. A Person shall be deemed to control a corporation, a
partnership, a trust, or a limited liability company if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such person, through the ownership of voting
securities, partnership interests or other equity interests.
"Agents" means affiliates, employees, agents, mortgagees, contractors,
licensees and invitees of Sublandlord, Prime Landlord, KHI and XXXX.
"Business Days" shall mean all days except Saturdays, Sundays and days
on which banks located within the State of New York are required or permitted to
be closed.
"Combined Leases" shall mean the leases listed on Exhibit I attached
hereto; each of the Combined Leases shall be referred to in the singular, as a
"Combined Lease".
"Equipment" shall have the meaning specified in the recitals hereof.
"Expiration Date" shall mean June 29, 2006.
"Facility" The facility being operated on the Premises.
"Fiscal Year" The twelve (12) month period from January 1 to December
31.
"Indemnified Parties" means Sublandlord, Prime Landlord, KHI, and
XXXX, and the Agents of each.
"Insurance Policies" shall have the meaning specified in Section 17A.
"Kindred" shall have the meaning specified in the recitals hereto.
"Management Agreement" shall mean the Management Agreement, between
Subtenant and Manager regarding the management of the Premises, substantially in
the form attached hereto as Exhibit F.
"Manager" shall mean Senior Health Management-Gold Coast, LLC, a
Florida limited liability company.
"Notice" shall have the meaning specified in Section 20A.
"Operations Transfer Agreement" shall have the meaning specified in
the recitals hereof.
"Operations Transfer Event" shall mean any of the following events:
(a) a default under the terms of this Sublease, (b) the expiration or earlier
termination of the Term, or (c) commencement by Subtenant of the winding down of
operations at the Premises (whether by notice to regulatory authorities, notice
to tenants or residents at the Premises or otherwise).
"Parent" shall have the meaning specified in the preamble hereof.
2
"Patient Revenues" shall mean revenues generated from the sale of
goods or services at or through the Premises, whether by Subtenant or any
subtenant or licensee of Subtenant, or any other party, which revenues are
primarily derived from services provided to patients (including, without
limitation, revenues received or receivable for the use of or otherwise by
reason of all rooms, beds and other facilities provided, meals served, services
performed or goods sold at the Premises, but excluding revenues received by
Subtenant as rent or other consideration from a permitted assignment of this
Lease or any part thereof or a permitted sublease of the Premises or any part
thereof).
"Payment Date" shall have the meaning specified in Section 6B(a).
"Person" means any individual, sole proprietorship, corporation,
general partnership, limited partnership, limited liability company or
partnership, joint venture, association, joint stock company, bank, trust,
estate, unincorporated organization, any federal, state, county, or municipal
government (or agency or political subdivision thereof), endowment fund or other
form of entity.
"Premises" shall have the meaning specified in the recitals hereof.
"Primary Intended Use" shall have the meaning specified in Section 7.
"Prime Landlord" shall have the meaning specified in the recitals
hereof.
"Prime Lease" shall have the meaning specified in the recitals hereof.
"Rental" shall have the meaning specified in Section 6B(d).
"Sublandlord" shall have the meaning specified in the preamble hereof.
"Subsidiaries" The corporations or other entities of which securities
or similar ownership interests representing (i) ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
or (ii) a majority of the economic interest therein, are at the time directly or
indirectly owned by Subtenant (individually, a "Subsidiary").
"Subtenant" shall have the meaning specified in the preamble hereof.
"Superior Leases and Mortgages" shall have the meaning specified in
Section 8A.
"Term" shall have the meaning specified in Section 4A.
"Working Capital Facility" shall mean that certain working capital
loan made by CapitalSource Finance LLC, as lender, to Subtenant, the other
tenants and subtenants under the Combined Leases, and Parent, as borrower,
pursuant to that certain Revolving Credit and Security Agreement, dated on or
about the date hereof.
2. Subleasing of Premises. Sublandlord hereby subleases and demises to Subtenant
and Subtenant hereby hires and subleases from Sublandlord the Premises and the
Equipment upon and subject to the terms, covenants, and conditions herein set
forth.
3
3. Condition of Premises. On the Sublease Commencement Date (as hereinafter
defined), Sublandlord shall deliver the Premises and Equipment, and Subtenant
agrees to accept the Premises and Equipment in "as-is" physical condition on the
Sublease Commencement Date and as specifically set forth in the Operations
Transfer Agreement. Sublandlord shall not be obligated to perform any work or
furnish any materials in, to or about the Premises or relating to the Equipment
in order to prepare the Premises for use or occupancy or the Equipment for use
by Subtenant, except to the extent set forth in the Operations Transfer
Agreement. Subtenant agrees that in executing this Sublease, it has not relied
upon any statements, representations, covenants or warranties made by
Sublandlord or any person acting on behalf of Sublandlord other than those, if
any, expressly set forth in this Sublease and in the Operations Transfer
Agreement and on such investigations, examinations and inspections as Subtenant
has chosen to make or has made.
4. Term of Sublease.
A. The term ("Term") of this Sublease shall commence on the date first
written above (the "Sublease Commencement Date") and, unless sooner terminated
as herein provided, shall expire on the Expiration Date.
B. Sublandlord shall have the right to terminate this Sublease at any time
during the Term upon prior written notice to Subtenant, which termination shall
become effective on the date that is no more than 90 days, and no less than 80
days following the delivery of such notice by Sublandlord, provided, that
Sublandlord shall have no right to terminate this Sublease under this Section 4B
if (a) Sublandlord would remain the lessee of the Premises following such
termination for the balance of the term of the Prime Lease and (b) the purpose
of such termination is to replace Subtenant with another subtenant, which will
operate the Facility. Upon the effectiveness of any such termination, provided,
that, (i) Subtenant shall have timely complied with its obligations under
Section 24, (ii) Subtenant shall have timely delivered possession of the
Premises and Equipment to Sublandlord and (iii) no default shall have occurred
and be continuing, then in such event Sublandlord shall pay to Subtenant a
sublease termination fee in an amount equal to the monthly installments of Fixed
Rent for the two calendar months preceding the delivery of such notice. Without
limiting any of the foregoing, upon any termination of this Sublease pursuant to
this section, the provisions of Section 24 regarding transfer of operations at
the Premises from Subtenant to Sublandlord shall automatically apply.
5. INTENTIONALLY OMITTED.
6. Rent.
A. Subtenant covenants and agrees to pay to Sublandlord, in lawful money of
the United States, fixed rent ("Fixed Rent") on a monthly basis in the amount
set forth on Exhibit D attached hereto. The first monthly installment of Fixed
Rent payable under this Sublease shall be paid on the Sublease Commencement
Date, subject to paragraph B(a) below.
(a) In addition to the Fixed Rent set forth above, Subtenant covenants
and agrees to pay Additional Rent from and after the Sublease Commencement Date.
To the extent not already completed, Subtenant shall arrange for service
directly with the utility providers serving
4
the Premises, shall furnish such deposit (if any) as such utility provider may
require, and shall pay the utility provider's charges promptly upon receipt of
bills therefor. For each item of Additional Rent not paid directly by Subtenant
to the relevant authority or vendor and in respect of which Sublandlord pays the
amount due to the relevant authority or vendor, Sublandlord shall xxxx Subtenant
promptly. Upon receipt of the corresponding xxxx from Sublandlord, Prime
Landlord or such authority or vendor, Subtenant shall pay the relevant authority
or vendor, or reimburse Sublandlord each amount so billed, within five (5)
Business Days after being billed therefor, provided that if Subtenant provides
written notice to Sublandlord within such five (5) day period of reasons for
delaying payment of such amount, which reasons are acceptable to Sublandlord, in
its sole discretion then Subtenant shall have an additional three (3) Business
Days to pay or reimburse such amount. Notwithstanding anything to the contrary
contained herein, Sublandlord may calculate the amounts of Additional Rent on an
estimated basis for any calendar year occurring prior to the time that the
actual amount of said Additional Rent with respect to such calendar year has
been precisely determined. Such amounts shall be paid by Subtenant in equal
monthly installments in conjunction with the Fixed Rent. Thereafter, when such
amounts can be precisely determined, Sublandlord shall furnish Subtenant with a
reconciliation statement setting forth the amount of said Additional Rent
payable in the applicable calendar year and the amount Subtenant may have
theretofore paid to or at the direction of Sublandlord. Thereafter, Subtenant
shall either promptly pay to Sublandlord any shortage of Additional Rent, or, in
the event of an overpayment of Additional Rent, receive a credit against its
next monthly installment(s) of Fixed or Additional Rent (as determined by
Sublandlord) until the credit is satisfied.
(b) If Sublandlord shall be charged with respect to the Premises or
Equipment for any other sums or charges pursuant to the provisions of the Prime
Lease, including, without limitation, for extra services requested by Subtenant,
then Subtenant shall be liable for all such sums and charges as Additional Rent
under this Sublease and such sums shall be due and payable by Subtenant to
Sublandlord on demand. The foregoing shall not be deemed to require Subtenant to
make payments in respect of charges incurred by Sublandlord by reason of the
acts or omissions of Sublandlord or any other subtenants, if any.
B. (a) Fixed Rent as set forth on Exhibit D and monthly installments, if
any, of Additional Rent shall be due and payable in equal monthly installments
in advance in immediately available funds by wire transfer (pursuant to the wire
transfer instructions delivered by Sublandlord to Subtenant), on the first day
of each calendar month of the Term (each such date, a "Payment Date"). If the
first day of a calendar month is not a Business Day, such installment shall be
due on the first Business Day preceding the first calendar day of such month. If
the Sublease Commencement Date shall be other than the first day of a calendar
month or the expiration of the Term is other than the last day of a calendar
month, the monthly installments of Fixed Rent and Additional Rent payable
hereunder for any such month shall be prorated on a per diem basis based on the
actual number of days in such month. On the first day of the calendar month
following the Sublease Commencement Date, if the Sublease Commencement Date
occurs after the first day of a calendar month, Subtenant shall receive a credit
for the unapplied portion of the Rental deposit made pursuant to Section 6A.
(b) Subtenant shall furnish to Sublandlord copies of all tax and
insurance bills relating to the Premises and Equipment and copies of official
receipts or other satisfactory proof
5
evidencing all payments of taxes and insurance premiums, promptly following
receipt or payment thereof, as applicable.
(c) If Sublandlord shall receive a refund of any Additional Rent
amounts from Prime Landlord with respect to the Premises pursuant to the terms
of the Prime Lease, and such refund relates to Additional Rent paid hereunder by
Subtenant, Sublandlord shall promptly notify Subtenant and shall at
Sublandlord's option, either (i) credit against the next monthly installment of
Additional Rent due hereunder, the portion thereof, if any, allocable to the
Term of this Sublease and which shall have been theretofore paid by Subtenant or
(ii) promptly send said allocable amount to Subtenant.
(d) All of the amounts payable by Subtenant pursuant to this Sublease,
including, without limitation, Fixed Rent, Additional Rent, and all other costs,
charges, sums and deposits payable by Subtenant hereunder (collectively,
"Rental"), shall constitute rent under this Sublease and shall be payable to
Sublandlord or its designee at such address as Sublandlord shall from time to
time direct in writing. Subtenant shall have no authority to pay the Rental
directly to Prime Landlord unless so directed in writing by Sublandlord or Prime
Landlord.
(e) Subtenant shall promptly pay the Rental as and when the same shall
become due and payable without setoff, offset or deduction of any kind
whatsoever and, in the event of Subtenant's failure to pay same when due,
Sublandlord shall have all of the rights and remedies provided for in the Prime
Lease and in this Sublease or at law or in equity in the case of nonpayment of
rent. Subtenant's obligation to pay Rental shall survive the expiration or
sooner termination of this Sublease.
(f) If any Rental shall not be paid within five (5) days after the
same is due hereunder, such unpaid Rental shall bear interest at an annual rate
which is four (4%) percent in excess of the prime or base reference lending rate
from time to time quoted by XX Xxxxxx Xxxxx (or any successor thereto) from the
date on which such Rental was originally due until the date when paid.
C. If Subtenant shall for any reason remain in possession of the Premises
after the expiration of the Term or earlier termination of this Sublease, such
possession shall at the option of Sublandlord in its sole discretion, be as a
month-to-month holdover tenant during which time, Subtenant shall pay as rental
each month (which rental constitutes liquidated damages with respect to Rental,
and not a penalty for the period to which it relates), the greater of the
following: (a) two times the aggregate of: (i) the installment of rent payable
by Sublandlord to Prime Landlord pursuant to the Prime Lease as of the last
month of the Term, and (ii) all other sums, if any, payable by Subtenant
pursuant to the provisions of this Sublease and the Prime Lease with respect to
the Premises, and (b) holdover damages payable by Sublandlord, as tenant under
the Prime Lease, to Prime Landlord. During such period of month-to-month
holdover tenancy, Subtenant shall be obligated to perform and observe all of the
terms, covenants and conditions of this Sublease and the Prime Lease with
respect to the Premises, but shall have no rights hereunder other than the
right, to the extent given by law to month-to-month holdover tenancies to
continue its occupancy and use of the Premises. Nothing contained herein shall
constitute the consent, express or implied, of Sublandlord to the holding over
of Subtenant after the expiration or earlier termination of this Sublease.
Notwithstanding payment of such holdover
6
rent, Sublandlord shall be entitled to the exercise against Subtenant of all
remedies, including summary dispossession and eviction, available to Prime
Landlord under the Prime Lease in the event that Sublandlord, as tenant under
the Prime Lease, were to remain in possession beyond the expiration of the term
or earlier termination of the Prime Lease.
7. Use. Subtenant shall use and occupy the Premises as a skilled nursing
facility and for no other purpose ("Primary Intended Use").
8. Subordination to and Incorporation of the Prime Lease.
A. This Sublease and all of Subtenant's rights hereunder are and shall
remain in all respects subject and subordinate to (i) all of the terms,
conditions and provisions of the Prime Lease, a true and complete copy of which
has been delivered to and reviewed by Subtenant and is attached hereto as
Exhibit A, together with any amendments or modifications thereto, (ii) the lien
of any fee or leasehold mortgages now or which at any time hereafter may be made
a lien upon the Premises, (iii) any and all renewals, modifications,
consolidations, replacements, extensions or amendments made to the Prime Lease
or any of the mortgages referenced in (ii) above or supplemental agreements
relating thereto hereafter made which do not in any material respect contravene
any express rights granted to Subtenant hereunder or materially increase
Subtenant's obligations or to which Subtenant otherwise has consented and (iv)
any and all matters to which the tenancy of Sublandlord, as tenant under the
Prime Lease, is or may be subordinated (the Prime Lease, the mortgages
referenced in item (ii) and the foregoing items (iii) and (iv) shall
collectively be referred to as "Superior Leases and Mortgages"). The foregoing
provisions shall be self-operative and no further instrument of subordination
shall be necessary to effectuate such provisions. Nevertheless, in confirmation
of such subordination, Subtenant agrees to execute and deliver promptly any
commercially reasonable form of instrument (in recordable form, if requested)
that the holder of any Superior Leases and Mortgages may request to evidence
such subordination. Notwithstanding the above, Sublandlord agrees to obtain the
Landlord Consent substantially in the form attached hereto as Exhibit X.
X. Except as otherwise expressly provided in this Sublease, Subtenant
assumes and shall keep, observe and perform every term, provision, covenant and
condition on Sublandlord's part pertaining to the Premises which is required to
be kept, observed and performed pursuant to the Prime Lease and which arises or
accrues during the term of this Sublease. Subtenant shall not do, nor permit to
be done, any act or thing that is, or with notice of passage of time would be, a
default under this Sublease, any Superior Lease and Mortgage, or the Prime
Lease.
C. The terms of the Prime Lease, as they apply to the Premises, are
incorporated herein by reference and shall, as between Sublandlord and Subtenant
(as if they were the named Lessor and Lessee, respectively, under the Prime
Lease) constitute the terms of this Sublease except to the extent they are
inapplicable to, inconsistent with or modified by the terms of this Sublease --
as immediately set forth below, and/or as elsewhere in this Sublease provided:
(a) Section Y of the Prime Lease is hereby deleted in its entirety and
replaced with the following:
7
"Y. Right of First Refusal.
1. During the term of this Sublease, Sublandlord shall deliver to Subtenant a
copy of any notice of Offer (a "Notice of Offer") it receives from Prime
Landlord pursuant to Section Y of the Prime Lease within five (5) Business Days
of its receipt thereof. Subtenant shall have twenty-five (25) days following
Sublandlord's delivery of such Notice of Offer to inform Sublandlord in writing
whether it will require Sublandlord to exercise its Right to purchase the
Premises and Equipment upon the same terms and conditions of the Offer, as set
forth in Section Y of the Prime Lease (such right of Subtenant shall be referred
to as the "First Refusal Right"). If Subtenant fails to so inform Sublandlord of
its election to exercise the First Refusal Right within such twenty-five (25)
day period, the First Refusal Right with respect to such Offer shall be void and
of no further force and effect. The exercise by Subtenant of the First Refusal
Right shall be irrevocable.
2. If Subtenant timely exercises its First Refusal Right as provided herein,
then Sublandlord shall exercise its Right under the Prime Lease to purchase the
Premises and Equipment. In such event, Subtenant agrees to enter into a written
sales contract with Sublandlord for the purchase of the Premises upon the same
terms and conditions of the Offer as of the same date of Sublandlord's sales
contract with Prime Landlord. Sublandlord shall, (provided, that the sale of the
Premises from Prime Landlord to Sublandlord has occurred and Subtenant has paid
all costs and expenses of Sublandlord in connection with such sale) upon receipt
from Subtenant of the applicable purchase price, together with full payment of
all Rental due and payable or other charges due and payable with respect to any
period ending on or before the date of the purchase, deliver to Subtenant a
deed, in form and in substance similar to the deed required to be given by Prime
Landlord pursuant to the Offer, conveying the entire interest of Sublandlord in
and to the Premises and Equipment. The purchase price shall be paid in
immediately available funds at a closing to be held on the same date as and
simultaneous with the closing of the sale of the Premises from Prime Landlord to
Sublandlord. The closing shall occur at a place specified by Prime Landlord or
Sublandlord. The Premises and Equipment shall be conveyed to Subtenant on an
"as-is" basis and in its then physical condition. All expenses of such
conveyance, including, without limitation attorney's fees of Sublandlord, the
cost of title examination or title insurance, recording fees, purchase money
deposits due to Prime Landlord, and transfer taxes (including, without
limitation any transfer taxes due as a result of the sale of the Premises from
Prime Landlord to Sublandlord) (collectively, the "First Refusal Expenses")
shall be paid by Subtenant and shall be considered Additional Rent hereunder.
Subtenant acknowledges that it is responsible for the payment of all First
Refusal Expenses when due and that Sublandlord shall not make any funds
available for the payment of such expenses. Subtenant hereby authorizes
Sublandlord to use, apply or retain the whole or any part of the security
deposited pursuant to Section 18 hereof to the extent required for the payment
of any First Refusal Expenses.
3. Subtenant hereby acknowledges that Sublandlord is agreeing to exercise its
Right under the Prime Lease and purchase the Premises and Equipment under this
Sublease, as an accommodation to Subtenant, and agrees that Sublandlord shall
bear no costs, expenses or liabilities with respect to the exercise of such
Right, the sale of the Premises and Equipment from Prime Landlord to
Sublandlord, or the sale of the Premises and Equipment from Sublandlord to
Subtenant. Subtenant agrees to indemnify and hold harmless Sublandlord from and
against any all suits, claims, demands, liability, damages, costs and expenses
of every kind and nature
8
including, without limitation, attorney's fees and expenses, court costs,
penalties and fines, incurred in connection with the exercise of the Right, the
sale of the Premises and Equipment from Prime Landlord to Sublandlord, or the
sale of the Premises and Equipment from Sublandlord to Subtenant (except as a
result of the gross negligence or willful misconduct of Sublandlord).
(b) Section K.2 of the Prime Lease is hereby deleted and replaced in
its entirety as follows:
"That Subtenant shall pay any and all taxes, including personal
property, franchise, use, real estate taxes and assessments, employment
taxes charged against said Premises, and its operation. Nothing contained
in this Sublease shall be construed to require Subtenant to pay any tax
based on net income of Prime Landlord or Sublandlord."
(c) INTENTIONALLY OMITTED.
(d) In Section 1.3 of the Prime Lease, regarding condemnation, the
number "90" is hereby deleted and replaced by "45."
(e) Section H of the Prime Lease relating to Damage or Destruction is
incorporated by reference herein, subject to the following provisos: (i) if
Subtenant elects, pursuant to Section H.1, to terminate this Sublease due to
damage or destruction that renders the Premises Unsuitable for their Primary
Intended Use, it must do so by delivery of Notice to Sublandlord within
forty-five (45) days of such damage or destruction, in which event such
termination shall be effective as of the date of delivery of such Notice to
Sublandlord, (ii) if Subtenant does not elect to terminate this Sublease in
accordance with the foregoing clause (i), Sublandlord's sole obligation shall be
to notify Prime Landlord of such circumstances and request that it commence
restoration in accordance with Section H.1 of the Prime Lease and (iii) in the
event of damage or destruction that does not render the Premises Unsuitable for
their Primary Intended Use, as set forth in Section H.2 of the Prime Lease,
Sublandlord's sole obligation shall be to notify Prime Landlord of such
circumstances and request that it commence restoration in accordance with
Section H.2 of the Prime Lease. The provisions of this subsection (e) shall be
considered an express agreement governing any cause of damage or destruction to
the Premises and, to the maximum extent permitted by law, no local or state
statute, law, rule, regulation or ordinance in effect during the Term which
provides for such a contingency shall have any application in such case.
(f) Section I of the Prime Lease relating to condemnation is
incorporated by reference herein, subject to the following provisos: (i) if
Subtenant elects, pursuant to Section 1.3, to terminate this Sublease due to a
condemnation that renders the Premises Unsuitable for their Primary Intended
Use, it must do so by delivery of Notice to Sublandlord within forty-five (45)
days of the Date of Taking, in which event such termination shall be effective
as of the date of delivery of such Notice to Sublandlord, (ii) in the event of a
condemnation that does not render the Premises Unsuitable for their Primary
Intended Use, or Subtenant does not otherwise exercise the election to terminate
pursuant to the foregoing clause (i), then Fixed Rent hereunder shall be abated
in the same proportion as Base Rent is abated under the Prime Lease, effective
as of the Date of Taking, (iii) if there is a partial taking of the Premises and
this Sublease remains in
9
effect, as set forth in Section 1.4 of the Prime Lease, Sublandlord's sole
obligation shall be to notify Prime Landlord of such circumstances and request
that it commence restoration in accordance with Section 1.4 of the Prime Lease
and (iv) any condemnation award that is paid to Sublandlord as lessee under the
Prime Lease shall be allocated between Sublandlord and Subtenant as their
interests may appear.
(g) Section Z of the Prime Lease is hereby deleted in its entirety.
D. The occurrence of any of the following shall be an "Event of Default"
hereunder:
(a) if Subtenant shall fail to make payment of Rental or any other sum
payable under or pursuant to the terms of this Sublease, when the same
becomes due and payable and such failure is not cured within a period of
ten (10) days after receipt of notice from Sublandlord;
(b) if Subtenant shall fail to observe or perform any term, covenant
or condition of this Sublease or of the Prime Lease not specifically
provided for in this section and such failure is not cured within a period
of ten (10) days after receipt of notice from Sublandlord;
(c) the voluntary or involuntary removal from service by Subtenant or
other loss by Subtenant of any licensed beds for the Premises (whether due
to so-called "bed banking", regulatory non-compliance or otherwise);
(d) an event of default arising from the failure to pay principal or
interest with respect to the Working Capital Facility, or any other
indebtedness of Subtenant or any Affiliate with an aggregate outstanding
principal amount equal to or exceeding $10 million shall have occurred
unless such default is cured by the borrower of such indebtedness within
its prescribed cure periods or waived by the party extending such
indebtedness;
(e) the acceleration of the maturity of any indebtedness of Subtenant
or any Affiliate with an aggregate outstanding principal amount equal to or
exceeding $10 million shall have occurred;
(f) notwithstanding any other provisions of this Sublease, the failure
of Subtenant to comply with any of the provisions of this Sublease or any
other act or omission by Subtenant (whether occurring at the Premises or
elsewhere) which, in the reasonable good faith judgment of Sublandlord,
places in imminent jeopardy the continued licensing of the Premises as then
currently licensed, or its certification as either a Medicare or Medicaid
provider, and the failure of Subtenant, within twenty-four (24) hours after
written notice thereof from Sublandlord to Subtenant to either (x) cure
such failure, (y) obtain an injunction or other order preventing revocation
or suspension of licensing and/or decertification of the Premises as either
a Medicare or Medicaid provider by virtue of such failure or alleged
failure or (z) provide Sublandlord with assurances satisfactory to
Sublandlord in its sole discretion that the Premises will not be subject to
license suspension or revocation, and/or decertification as a result of
such failure or alleged failure.
10
(g) An "Event of Default" under any of the Combined Leases.
E. Sublandlord and Subtenant each agree to promptly deliver to the other
party copies of all notices, requests or demands that relate to the Premises or
the use or occupancy thereof after the receipt of same.
F. (a) In addition to, and not in limitation of, the rights and remedies
granted to Sublandlord with respect to a breach by Subtenant pursuant to this
Sublease, Sublandlord shall have the same rights and remedies with respect to a
breach of this Sublease by Subtenant as Prime Landlord has with respect to a
breach by Sublandlord (in its capacity as Prime Tenant) of the Prime Lease, as
if the same were more fully set forth at length herein, and Sublandlord shall
have, with respect to Subtenant, this Sublease and the Premises, all of the
rights, powers, privileges and immunities as are had by Prime Landlord under the
Prime Lease. Sublandlord herein shall not be responsible for any breach of the
Prime Lease by Prime Landlord or any nonperformance or non-compliance with any
provision thereof by Prime Landlord, but Sublandlord shall comply with the
provisions of Section 13 hereof.
(b) If an Event of Default shall have occurred, whether or not this
Sublease has been terminated by Sublandlord, Subtenant shall, to the maximum
extent permitted by law, if and to the extent required by Sublandlord to do so,
immediately surrender the Premises to Sublandlord or to a qualified nursing
facility operator of Sublandlord's choice and quit the same (in accordance with
Section 24 hereof), and Sublandlord may enter upon and repossess the Premises by
reasonable force, summary proceedings, ejectment or otherwise, and may remove
Subtenant and all other persons and any and all personal property from the
Premises subject to the rights of any occupants or patients and to any
requirement of law. Unless expressly set forth by Sublandlord in writing, no
such demand, nor change of possession pursuant thereto, shall be deemed a
termination of this Sublease or a release of Subtenant from any of its
obligations under this Sublease. Unless and until this Sublease is terminated by
Sublandlord, Subtenant, shall remain liable under the terms of this Sublease.
(c) If a breach or default by Subtenant of any provision of this
Sublease occurs on account of which the continued effectiveness of the Prime
Lease is at material risk of being terminated and the same has not been cured by
Subtenant, Sublandlord may, but shall not be obligated to, in its sole
discretion and regardless of whether Subtenant is proceeding to cure, or
attempting to cure, such breach or default or whether the cure period related
thereto has expired or is likely to expire before completion of necessary cure
efforts, take such actions as it deems necessary or appropriate, including
without limitation, entering the Premises, to cure such breach or default. If
Sublandlord so proceeds to attempt to cure any such breach or default, Subtenant
agrees within fifteen (15) days following receipt of a written demand therefore
and reasonable supporting documentation to reimburse Sublandlord for the
reasonable amount of all costs and expenses incurred by Sublandlord in curing or
attempting to cure any such breach or default.
G. Provided Subtenant is not in default under this Sublease beyond
applicable periods of notice and grace expressly granted hereunder, Sublandlord
covenants and agrees not to, without prior written consent of Subtenant: (a)
voluntarily cancel or surrender the Prime Lease, except for a termination
permitted under Sections H and I of the Prime Lease (relating to casualty and
condemnation), or (b) consent to any material modifications, amendments or
supplements to the
11
Prime Lease which in any material respect contravene any express rights granted
to Subtenant hereunder (other than modifications, amendments or supplements
which Sublandlord is required to make pursuant to the Prime Lease or pursuant to
the requirements of any Superior Leases and Mortgages or prospective landlord or
mortgagee thereunder), provided, that nothing in the foregoing sentence shall
prohibit Sublandlord from exercising its rights to terminate this Sublease under
Section 4B hereof. If the Prime Lease as it relates to the Premises is
terminated for any reason whatsoever, whether by operation of law or otherwise,
(a) except through the default of Sublandlord, Sublandlord shall not be liable
in any manner whatsoever for such termination, and (b) this Sublease shall
automatically terminate. Sublandlord shall promptly forward to Subtenant any
default or termination notice with respect to the Prime Lease received by
Sublandlord and relating to the Premises.
H. Nothing in this Sublease shall be construed as granting Subtenant any
right, title, interest in or to the beds, or the licenses relating thereto,
which are located at the Premises or granting Subtenant any right to move the
beds, or the licenses relating thereto, to another facility owned, leased, or
operated by Subtenant or any of its Affiliates, it being understood and agreed
that Subtenant's only right hereunder is to operate the Premises during the Term
as the licensed operator in accordance with the terms hereof.
I. This Sublease and the Prime Lease shall remain separate and distinct
estates and shall not merge, without the consent of Sublandlord, notwithstanding
the fact that any such estates in the Premises may be commonly held.
J. Unless otherwise specifically set forth herein, the time limits set
forth in the Prime Lease for the giving of notices, making of demands,
performance of any act, condition or covenant or the exercise of any right,
remedy or option, are changed for the purposes of incorporation into this
Sublease by lengthening (in any situation where Sublandlord's delivery of notice
to Subtenant is contingent on Prime Landlord's delivery of any notice to
Sublandlord or performance of any act under the Prime Lease) or shortening the
same in each instance, as appropriate in order to allow Sublandlord to comply
with any time limits in the Prime Lease, so that notices must be given, demands
made, and any act, condition or covenant must be performed and any right, remedy
or option hereunder must be exercised by Sublandlord or Subtenant, as the case
may be (and each party covenants that it will do so), within three (3) Business
Days prior (or following, in any case where the time limit is lengthened as
provided above) to the expiration of the time limit, taking into account the
maximum grace period if any relating thereto, contained in the Prime Lease.
9. Attornment and Non-Disturbance. If (a) the Prime Lease and Sublandlord's
leasehold interest in the Premises shall be terminated, (other than by total
condemnation or sale in lieu thereof) or (b) any leasehold mortgagee shall
become owner of Sublandlord's leasehold estate under the Prime Lease or shall
enter into a new lease with Prime Landlord for the Premises, pursuant to the
Prime Lease, then Subtenant shall, if so requested in writing by Prime Landlord,
or such prospective leasehold mortgagee (each such party a "Successor
Landlord"), as the case may be, either (x) attorn to Successor Landlord and
waive any right Subtenant may have to terminate this Sublease or to surrender
possession hereunder, as a result of termination of the Prime Lease or otherwise
and shall, during the Term, perform all of the terms, covenants and conditions
of this Sublease on the part of Subtenant to be performed, or (y) enter into a
new lease
12
or sublease (as applicable) with such Successor Landlord as landlord or
sublandlord (as applicable) for the remaining Term and otherwise on the same
terms and conditions of this Sublease. In the event of any such attornment or
new lease or sublease, Successor Landlord shall not be (a) liable for any act or
omission or default of any prior sublandlord (including, without limitation,
Sublandlord); or (b) subject to any offsets or defenses which Subtenant might
have against any prior sublandlord (including without limitation, Sublandlord);
or (c) bound by any rent or additional rent which Subtenant might have paid for
more than the current month to any prior sublandlord (including, without
limitation, Sublandlord) or (d) bound by any amendment or modification of this
Sublease made without Prime Landlord and any leasehold mortgagee's written
consent; or (e) liable for any security deposited pursuant to this Sublease
unless such security has actually been delivered to such Successor Landlord. In
the event Subtenant receives a written notice from Prime Landlord or its
assignees, Subtenant shall thereafter be obligated to pay all Rental accruing
under this Sublease directly to the party giving such notice or as such party
may direct. The foregoing shall be self-operative without the necessity of the
execution of any further instruments but Subtenant agrees, upon the demand of a
Successor Landlord to execute, acknowledge and deliver any instrument or
instruments confirming such attornment. Nothing contained in this Section shall
be construed to impair any right otherwise exercisable by any such Successor
Landlord.
10. Quiet Enjoyment. Sublandlord covenants that as long as Subtenant shall pay
the Rental due hereunder and shall duly perform all the terms, covenants and
conditions of this Sublease on its part to be performed and observed, Subtenant
shall peaceably and quietly have, hold and enjoy the Premises during the term
hereof without molestation or hindrance by Sublandlord, subject to the terms,
provisions and conditions of the Prime Lease and this Sublease.
11. Representations, Warranties and Covenants.
A. Sublandlord represents and warrants to Subtenant as follows as of the
date of execution and delivery of this Sublease:
i. the Prime Lease and all amendments thereto and assignments thereof
(a) are listed on Exhibit A, (b) have been delivered to Subtenant for
review, (c) collectively constitute a true, correct and complete copy of
the Prime Lease currently in full force and effect, and (d) have not been
amended, modified, altered, canceled, revoked, assigned or otherwise
changed;
ii. the Commencement Date of the Prime Lease was July 1, 1996 and the
Expiration Date of the Prime Lease is June 30, 2006 unless the Prime Lease
is extended as provided therein under Section B;
iii. (a) it has neither delivered to Prime Landlord nor received from
Prime Landlord a notice of any condition under the Prime Lease which, with
the giving of notice or the passage of time or both, would constitute a
default under the Prime Lease by either Prime Landlord or Sublandlord, and
(b) to its actual knowledge, no condition exists which, with the giving of
notice or the passage of time or both, would constitute a default under the
Prime Lease by either Prime Landlord or Sublandlord;
13
iv. Sublandlord holds the entire tenant's interest under the Prime
Lease and there are no other deeds, leases, or licenses or other claims or
rights of occupancy or use for any portion of the Premises, other recorded
or unrecorded restriction or legal impediment to the Premises for the
purposes for which they are sublet hereunder, in effect as of the date of
this Sublease, except as set forth in Exhibit K;
v. There are no legal actions, lawsuits, administrative proceedings,
governmental proceedings pending or to the knowledge of Sublandlord,
threatened against Sublandlord or the Premises that would prohibit
Sublandlord from entering into this Sublease or negatively impact its
ability to comply with the obligations, responsibilities and terms of this
Sublease;
vi. Subject to the consent of Prime Landlord, Sublandlord has full
right, power and authority to enter into this Sublease;
vii. This Sublease constitutes and all other instruments and documents
to be executed and delivered by Sublandlord hereunder or pursuant hereto
have been or will be duly executed and delivered by Sublandlord constitute
(or will constitute, as to those instruments and documents to be executed
and delivered) the legal, valid and binding obligation of Sublandlord,
enforceable against Sublandlord in accordance with their respective terms,
subject, as to enforcement, to the availability of equitable remedies and
limitations imposed by bankruptcy, insolvency, reorganization and other
similar laws and related court decisions relating to or affecting
creditors' rights generally;
viii. Sublandlord has received no notice of any condemnation
proceeding or other proceeding in the nature of eminent domain, and has no
information leading Sublandlord to believe such a proceeding is planned, in
connection with the Premises or any portion or portions thereof;
ix. Sublandlord has received no notice of any violations of any
federal, state, county or municipal law, ordinance, order, rule,
regulation, agreement or requirement affecting any portion of the Premises
including, but not limited to, violations of any housing, building, zoning,
fire, safety, environmental, traffic, flood control or health laws, other
than those arising in the normal course of business;
x. The right of first refusal to purchase the Premises granted to
Sublandlord pursuant to Section Y of the Prime Lease remains in full force
and effect on the date of this Sublease;
xi. Sublandlord has not consulted or negotiated with any broker,
finder or agent with regard to the subletting of the Premises;
xii. All rent and other charges due from Sublandlord to Prime Landlord
or to third parties pursuant to the Prime Lease have been paid through the
date of this Sublease;
xiii. Sublandlord is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware
14
B. Subtenant represents and warrants to Sublandlord as of the date of
execution and delivery of this Sublease that:
i. Subtenant has full right, power and authority to enter into this
Sublease and neither the execution by Subtenant of this Sublease nor the
performance by Subtenant of the terms hereof will conflict with or violate any
agreement or instrument or any writ, order or decree to which Subtenant is a
party or by which Subtenant is bound;
ii. Subtenant is a duly formed limited liability company in good
standing in its jurisdiction of organization and in the state where the Premises
are located and is authorized to conduct business in the state where the
Premises are located;
iii. The ownership structure of Subtenant is set forth on the
structure chart attached hereto as Exhibit E;
iv. This Sublease constitutes and all other instruments and documents
to be executed and delivered by Subtenant hereunder or pursuant hereto have been
or will be duly executed and delivered by Subtenant and constitute (or will
constitute, as to those instruments and documents to be executed and delivered)
the legal, valid and binding obligation of Subtenant, enforceable against
Subtenant in accordance with their respective terms, subject, as to enforcement,
to the availability of equitable remedies and limitations imposed by bankruptcy,
insolvency, reorganization and other similar laws and related court decisions
relating to or affecting creditors' rights generally;
v. Subtenant has entered into the Management Agreement with Manager,
in the form attached hereto as Exhibit F;
vi. There are no legal actions, lawsuits, administrative proceedings,
governmental proceedings pending or, to the knowledge of Subtenant, threatened
against Subtenant that would prohibit Subtenant from entering into this Sublease
or negatively impact its ability to comply with the obligations,
responsibilities and terms of this Sublease;
vii. Subtenant has obtained all licenses, certificates and other
authorizations necessary to operate the Premises as a skilled nursing facility,
and such licenses, certificates and authorizations are in full force and effect;
and
viii. Subtenant has not consulted or negotiated with any broker,
finder or agent with regard to the subletting of the Premises.
C. Subtenant shall neither engage any manager other than Manager at the
Premises nor amend the Management Agreement, without the prior written consent
of Sublandlord, which shall not be unreasonably withheld, delayed, or
conditioned, provided, that Sublandlord may withhold consent in its sole
discretion to any amendments to the Management Agreement, which in Sublandlord's
reasonable opinion, materially change the economic terms thereof. Subtenant
shall not terminate or assign the Management Agreement or subcontract the
services to be provided thereunder, without the prior written consent of
Sublandlord, to be given or withheld in its sole discretion.
15
12. Services and Repairs. Notwithstanding anything to the contrary herein set
forth, Subtenant agrees that Sublandlord shall have no obligation to render or
supply any services to Subtenant, including, without limitation (a) the
furnishing of electrical energy, heat, ventilation, water, air conditioning,
elevator service, cleaning, window washing, or rubbish removal services to the
Premises, (b) making any alterations, repairs or restorations to the Premises or
Equipment, (c) complying with any laws or requirements of any governmental
authorities, or (d) taking any other action or causing any other services to be
provided with respect to the Premises or Equipment.
13. Enforcement of Prime Lease. If Prime Landlord shall default in any of its
obligations to Sublandlord with respect to the Premises, Sublandlord shall not,
except as and to the extent hereinafter set forth, be obligated to bring any
action or proceeding or to take any steps to enforce Sublandlord's rights
against Prime Landlord other than, upon the written request of Subtenant, making
a demand upon Prime Landlord to perform its obligations under the Prime Lease
with respect to the Premises. If following the making of such demand and the
expiration of any applicable grace period granted to Prime Landlord under the
Prime Lease, Prime Landlord shall fail to perform its obligations under the
Prime Lease, then Subtenant shall have the right to take such action in its own
name. If (a) any such action against Prime Landlord in Subtenant's name is
barred by reason of lack of privity, non-assignability or otherwise, and (b) the
failure of Prime Landlord to perform its obligations under the Prime Lease has,
or may have, a materially adverse affect upon the Premises or Subtenant's
permitted use thereof, then subject to and upon the following terms, Subtenant
may bring such action in Sublandlord's name and Sublandlord shall execute all
documents reasonably required in connection therewith, provided (i) the same is
without cost and expense to Sublandlord, (ii) Subtenant agrees to indemnify
Sublandlord against all liability for damages, interest, penalties and expenses
(including reasonable attorneys' fees and expenses) resulting from or incurred
in connection with such contest; (iii) Subtenant is not in default hereunder,
and (iv) Subtenant shall furnish to Sublandlord a cash deposit or other security
in amount, form and substance reasonably satisfactory to Sublandlord securing
Sublandlord against all liability for damages, interest, penalties and expenses
(including reasonable attorneys' fees and expenses) resulting from or incurred
in connection with such contest.
14. Assignment, Subletting and Encumbrances.
A. Without the prior written consent of Sublandlord which may be withheld
at Sublandlord's sole discretion and, to the extent required under the Prime
Lease, the prior written consent of Prime Landlord, Subtenant shall not (i)
assign this Sublease (by operation of law or otherwise), (ii) sublease all or
any part of the Premises or Equipment, (iii) mortgage, pledge, hypothecate or
otherwise encumber its interest in this Sublease or the Premises or Equipment or
any interest therein, or (iv) grant any concession, license or otherwise permit
the Premises or Equipment to be used or occupied by anyone other than Subtenant.
Any assignment, sublease, mortgage, pledge, hypothecation or other encumbrance
of or under this Sublease without such prior written consent shall be invalid
and without force and effect.
B. Any sale, transfer or hypothecation of the shares or other equity
interests in Subtenant, and any merger or consolidation of Subtenant with any
other business entity, shall constitute an assignment of this Sublease if and to
the extent that any such transaction, if entered into by Sublandlord, would
constitute an assignment under the terms of the Prime Lease. In
16
addition, and without limiting the generality of the foregoing, the sale,
transfer, assignment or hypothecation of (i) a total of 50% or more of the
issued and outstanding common stock of Subtenant, if Subtenant is a corporation,
or (ii) 50% of the beneficial or equitable interest in the economic benefits of
the profits and losses of Subtenant, if Subtenant is a limited liability
company, joint venture, partnership or other business entity, however
accomplished and whether in a single transaction or in a series of related
unrelated transactions, shall be deemed an assignment of this Sublease.
C. Any assignment of this Sublease, if consented to by Sublandlord and
Prime Landlord, to the extent required under the Prime Lease, shall be subject
to and conditioned upon compliance with the following terms and conditions:
(i) By written instrument of assignment and assumption, the assignee
shall assume and agree to perform and to comply with all of the terms,
conditions and agreements of this Sublease on the part of Subtenant to be
kept, performed and observed and to become jointly and severally liable
with the assignor for such performance and compliance;
(ii) A duplicate original of such instrument, in form satisfactory to
Sublandlord, duly acknowledged and executed by the assignor and the
assignee, shall be delivered to Sublandlord within five (5) days following
the date of execution thereof; and
(iii) The assignor shall assign all of its right, title, interest and
claim to any security deposited hereunder to the assignee.
D. Any subletting of the Premises or any part thereof, if consented to by
Sublandlord, shall be subject to and conditioned upon compliance with the
following terms and conditions:
(i) The sublease shall provide that it is subject and subordinate to
all of the provisions of this Sublease and all of the rights of Sublandlord
hereunder;
(ii)The sublease shall expressly provide that the sublessee shall use
and occupy the Premises only for the permitted purposes set forth herein
and for no other purpose whatsoever; and
(iii) A duplicate original of the sublease, duly executed by sublessor
and sublessee, shall be delivered to Sublandlord within five (5) days
following the date of its execution.
E. If this Sublease is assigned, or if the Premises or any part thereof is
sublet or occupied by any one other than Subtenant, whether or not Subtenant
shall have been granted any required consent, Sublandlord may, after default by
Subtenant, collect rent and other charges from such assignee, Subtenant or other
occupant, and apply the net amount collected to Rental and other charges herein
reserved, but no such assignment, subletting, occupancy or collection shall be
deemed to be a waiver of the requirements of this Article 14 or an acceptance of
the assignee, subtenant or other occupant as subtenant under this Sublease. The
consent by Sublandlord to an assignment or subletting shall not in any way be
construed to relieve Subtenant from obtaining consent to any further assignment
or subletting. No assignment or subletting shall, in any way,
17
release, relieve or modify the liability of Subtenant under this Sublease and
Subtenant shall be and remain liable under all of the terms, conditions, and
covenants hereof.
F. If Subtenant shall at any time request the consent of Sublandlord to any
proposed assignment of this Sublease or subletting of all or any portion of the
Premises, Subtenant shall pay on demand the reasonable costs and expenses
incurred by Sublandlord and Prime Landlord, including, without limitation,
architect, engineer and reasonable attorneys' fees and disbursements, and a
reasonable administrative fee for review and/or preparation of documents in
connection with any proposed or actual assignment of this Sublease or subletting
of the Premises or any part thereof.
15. Indemnification.
A. Sublandlord, Prime Landlord, KHI, and XXXX, and the affiliates,
employees, agents, mortgages, contractors, licensees and invitees (collectively
"Agents") of each (collectively, "Indemnified Parties"), shall not be liable to
Subtenant or its agents and Subtenant shall indemnify and hold harmless the
Indemnified Parties from and against any and all suits, claims, demands,
liability, damages, costs and expenses of every kind and nature including,
without limiting the generality of the foregoing, attorneys' fees and expenses,
court costs, penalties and fines, incurred in connection with or arising out of
the following to the extent not caused by the acts or omissions of the
Indemnified Parties:
(i) any injury or damage to any person happening on or about the
Premises, or for any injury or damage to the Premises or Equipment, or to
any property of Subtenant or of any other person, firm, association or
corporation on or about the Premises;
(ii) default by Subtenant in the payment of the Rental or any other
default by Subtenant in the observance or performance of, or compliance
with any of the terms, provisions or conditions of this Sublease including,
without limitation, such matters relating to obtaining possession of the
Premises or Equipment following any such default;
(iii) the exercise by Subtenant or any person claiming through or
under Subtenant of any rights against Prime Landlord granted to Subtenant
hereunder;
(iv) any holdover beyond the term of this Sublease;
(v) any acts, omissions or negligence of Subtenant or any person
claiming through or under Subtenant, or the Agents of Subtenant or any such
person, in or about the Premises;
(vi) any proceeding, action or dispute that Sublandlord or Subtenant
may institute or be party to pursuant to Article 13 of this Sublease; or
(vii) any other liabilities, claims, or losses for which Sublandlord
is obligated to indemnify Prime Landlord under Section Q of the Prime
Lease.
18
B. The provisions of this Article 15 shall survive the expiration or
earlier termination of this Sublease.
16. Alterations. Subtenant shall make no alterations, modifications, structural
changes, installations, additions or improvements (collectively, "Alterations")
in or about the Premises or to the Equipment without the prior written consent
of Sublandlord in each instance, which consent shall not be unreasonably
withheld, delayed or conditioned, subject in all cases to any consent of Prime
Landlord required under the Prime Lease. Any Alterations consented to by
Sublandlord shall be performed by Subtenant at its sole cost and expense (except
to the extent that such costs are borne by Prime Landlord under the Prime Lease)
and in compliance with all of the provisions of the Prime Lease, including the
provisions requiring Prime Landlord's prior written consent, and also in
compliance with other reasonable requirements of Sublandlord and Prime Landlord.
17. Insurance.
A. At all times during the Term, Subtenant shall maintain policies of
liability, casualty and other insurance (the "Insurance Policies") in full force
and effect with responsible and reputable insurance companies or associations in
such amounts and against such risks and in substantially the form described in
Schedule 1 as attached hereto.
B. Subtenant represents and warrants that as of the Sublease Commencement
Date, it shall have obtained the insurance described in Schedule 1.
18. Security. Subtenant has deposited with Sublandlord a cash sum equal to one
monthly installment of Fixed Rent hereunder, as security for (i) the faithful
performance and observance by Subtenant of the terms, provisions and conditions
of this Sublease and (ii) the faithful performance and observance by the
applicable subtenants of the terms, provisions and conditions of each of the
Combined Leases. It is agreed that in the event Subtenant or the applicable
subtenant defaults in respect of any of the terms, provisions and conditions of
this Sublease or any of the Combined Leases, including, but not limited to, the
payment of Rental, Kindred or Sublandlord or the applicable sublandlord under a
Combined Lease may, after notice to Subtenant and the expiration of any
applicable grace period provided for in this Sublease or the applicable Combined
Lease (as applicable with respect to such default), use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any Rental or any other sum as to which Subtenant or the subtenant
under the applicable Combined Lease is in default or for any sum which
Sublandlord or the relevant sublandlord may expend or may be required to expend
by reason of Subtenant's or the applicable subtenant's default in respect of any
of the terms, covenants and conditions of this Sublease or any of the Combined
Lease, including but not limited to, any damages or deficiency in the reletting
of the Premises or the facility under this Sublease or the applicable Combined
Lease, whether such damages or deficiency accrue before or after summary
proceedings or other re-entry by Sublandlord or the sublandlord under the
applicable Combined Lease. In any such event, Subtenant shall promptly on demand
deposit with Sublandlord so much of the security as shall have been so expended
so that Sublandlord shall at all times have the full security deposit required
hereunder. In the event that (a) Subtenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Sublease,
(b) the applicable subtenants of each of the Combined Leases
19
shall fully and faithfully comply with the terms, provisions and conditions of
such Combined Leases and (c) Subtenant has delivered possession of the Premises
to Sublandlord upon expiration of the term hereof and otherwise in accordance
with the provisions hereof, then the security (less any portion thereof which
Sublandlord is entitled to retain) shall be returned to Subtenant. Sublandlord
shall hold such security and shall not be required to account to Subtenant with
respect to such security and shall not be required to pay any interest thereon.
Sublandlord shall have the right to commingle such security with any other
funds.
19. Broker. Each party warrants and represents to the other party hereto that it
has not dealt with any brokers in connection with this Sublease. Each party
hereby indemnifies and holds the other party hereto harmless from any and all
loss, damage, claim, liability, cost or expense (including, but not limited to,
reasonable attorneys' fees, expenses and court costs) arising out of or in
connection with any breach of the foregoing warranty and representation. The
provisions of this Article shall survive the expiration or earlier termination
of this Sublease.
20. Notices.
A. Any notice required to be given under this Sublease or pursuant to law
("Notice") shall be in writing and, unless otherwise required by law, shall be
either personally delivered (against a receipt), or sent by nationally
recognized overnight courier service, facsimile, or given by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
respective parties at the following addresses:
If to Sublandlord:
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (502)
with copies to:
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (502)
and to
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Leased Property Manager
Fax: (502)
and to
Xxxxx Xxxxxxxx
XX Xxxxxx Chase Bank
20
500 Xxxxxxx Xxxxxxxxxx Road- 3/OPS2
Xxxxxx, XX 00000
Fax:
and to
Xxxxx Xxx
XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax:
and to
Fairhaven South, Inc.
c/o World Gospel Mission
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax:
If to Subtenant:
FI-The Oaks LLC
0000 XX 00X
Xxxx Xxxx, XX 00000
Fax:
and to:
Senior Health Management - Gold Coast, LLC
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000X
Xx. Xxxxxxxxxx, XX 00000
Attention:
Fax:
with copies to:
Xxxxxxx Xxxxx & Xxxxx, P.C.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Fitzergrald, Esquire
Fax:(000) 000-0000
B. Either party may from time to time specify in writing a new address to
which any such Notice intended for such party shall thereafter and until further
Notice be addressed.
21
C. Any Notice given pursuant hereto shall be deemed to have been received
on delivery, if personally delivered or delivered by nationally recognized
overnight courier service or facsimile, or three (3) Business Days after the
mailing thereof if mailed in accordance with the terms hereof, such mailing to
be effected by depositing the Notice in any post office, branch post office or
official depository regularly maintained by the United States Postal Service.
21. No Waivers. Failure by either party in any instance to insist upon the
strict performance of any one or more of the obligations of the other party
under this Sublease, or to exercise any election herein contained, shall in no
manner be or be deemed to be a waiver by such party of any defaults or breaches
hereunder or of any of its rights and remedies by reason of such defaults or
breaches, or a waiver or relinquishment for the future of the requirement of
strict performance of any and all of the defaulting party's obligations
hereunder. Further, no payment by Subtenant or receipt by Sublandlord of a
lesser amount than the correct amount of Rental due hereunder shall be deemed to
be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed to effect or
evidence an accord and satisfaction, and Sublandlord may accept any checks or
payments as made without prejudice to Sublandlord's right to recover the balance
or pursue any other remedy in this Sublease or otherwise provided by law or in
equity.
22. Consent.
A. Whenever in this Sublease it is provided that either party will not
unreasonably withhold its consent to any matter, such party shall also be deemed
to have agreed not to unreasonably delay such consent. Sublandlord shall not be
deemed to have unreasonably withheld or delayed its consent to any matter if
Prime Landlord's consent or the consent of any holder of a Superior Lease and
Mortgage to the matter requested is required by the Prime Lease or any Superior
Lease and Mortgage and if Prime Landlord or such holder shall have withheld or
delayed its consent to such matter. The foregoing provisions shall not be deemed
a waiver of Subtenant's rights herein with respect to any default by Prime
Landlord in the performance of any of its obligations affecting the Premises
under the Prime Lease.
B. If either party shall request the other's consent and such consent is
withheld or delayed (regardless of whether such consent may be withheld in the
consenting party's sole discretion or such party has agreed that it will not
unreasonably withhold its consent), the requesting party shall not be entitled
to any damages by reason thereof, it being intended that the sole remedy
therefor shall be an action for specific performance or injunction, provided,
further that such remedy shall only be available where a party has agreed herein
not to unreasonably withhold or delay such consent or where, as a matter of law,
such consent may not be unreasonably withheld or delayed.
23. Arbitration.
A. Subtenant agrees, at Sublandlord's request, to participate in any
arbitration proceedings that may be required pursuant to the terms of the Prime
Lease and to comply with the decisions of any such proceedings. Notwithstanding
the foregoing, however, disputes between Sublandlord and Subtenant which are not
subject to the arbitration provisions of the
22
Prime Lease will not be required to be submitted to arbitration and neither
party waives its rights to seek a judicial remedy in these disputes.
24. Operations Transfer. Within twenty-four (24) hours of the occurrence of an
Operations Transfer Event and delivery by Sublandlord to Subtenant of a written
notice that an Operations Transfer Event has occurred, Subtenant shall execute
the operations transfer agreement as of such date, in the form attached hereto
as Exhibit H, which agreement shall govern the transition of operations from
Subtenant to Sublandlord, Prime Landlord, or a third party operator selected by
Sublandlord, as the case may be.
25. Financial Statements. Subtenant shall maintain, for itself and its
subsidiaries, a system of accounting established and administered in accordance
with generally accepted accounting principles, and shall provide Sublandlord
with the following information:
A. As soon as available but in no event later than forty-five (45) days
after the close of each fiscal month and within fifty (50) days after the close
each of the first three fiscal quarters, for Subtenant, an unaudited
consolidated balance sheet and statement of operations as of the close of each
such period and the related unaudited consolidated statements of income, cash
flows and stockholders equity for such period and for the year to date of
Subtenant and its Subsidiaries (collectively, "Financial Statements"), setting
forth in each case in comparative form the corresponding figures for the
previous year, all prepared in accordance with generally accepted accounting
principles and all certified in an Officer's Certificate to Sublandlord as being
complete and accurate to the best of Subtenant's knowledge, subject to normal
year end adjustments;
B. Within sixty (60) days after the close of each Fiscal Year, (i) for
Subtenant, consolidated Financial Statements, in each case with accompanying
notes and schedules, prepared in accordance with generally accepted accounting
principles and audited by a firm of independent certified public accountants of
recognized standing selected by Subtenant, which accountants shall have issued
an audit report thereon; and within forty-five (45) days after the close of each
Fiscal Year (ii) an Officer's Certificate certifying to Sublandlord the amount
of Patient Revenues for such Fiscal Year for the Facility, and attaching
reasonably detailed documentation thereof;
C. Within twenty-five (25) days after the close of each of the first three
fiscal quarters, and within fifty (50) days after the close of each Fiscal Year,
the following information and data for the Facility, in each case in paper
format or electronic computer format: (1) income statements that include,
without limitation, a breakdown of Patient Revenues and other revenues itemized
by payor type and a breakdown of operating expenses to the extent reasonably
available under the then current facility operation reports, but including, at a
minimum, itemization of Facility rental expense, overhead charges or management
fees, bad debt expense and any material non-recurring charges; and (2) patient
census by payor type;
D. As soon as available but in no event later than thirty (30) days
following the commencement of each Fiscal Year, annual budgets for the operation
during such Fiscal Year of the Facility, and to the extent reasonably available,
a breakdown of projected Patient Revenues and other revenues itemized by payor
type and a breakdown of projected operating expenses
23
itemized to reflect, at a minimum, Facility rental expense, overhead charges or
management fees, bad debt expense and any non-recurring charges;
E. Within fifty (50) days after the close of each Fiscal Year, or otherwise
upon request by Sublandlord in connection with a proposed sale or refinancing of
the Facility by Sublandlord or Prime Landlord, for Subtenant an Officer's
Certificate certifying to Sublandlord and Sublandlord's designees (which
certificate may be relied upon by Sublandlord, Prime Landlord and any
prospective purchaser or mortgagee of the Leased Property) the following
information:
(i) this Sublease is unmodified and is in full force and effect (or
that this Sublease is in full force and effect as modified and setting
forth the modifications);
(ii) the dates to which Rental has been paid;
(iii) the Facility is in good standing with respect to all necessary
federal, state and local licenses, permits and other authorizations;
(iv) if the Facility participates in the Medicare program it is in
compliance with the terms of its Medicare Provider Agreement and in good
standing with the Medicare program;
(v) if the Facility participates in the Medicaid program it is in
compliance with the terms of its Medicaid Provider Agreement and in good
standing with the Medicaid program;
(vi) the current number of licensed beds at the Facility; and
(vii) Sublandlord is not in default in the performance of this
Sublease, or if an Event of Default exists, specifying the same in
reasonable detail;
at the request of Sublandlord, together with complete and accurate copies
(originals of which shall be made available for inspection upon request by
Sublandlord) of all licenses, permits and other authorizations necessary to
operate the Facility in accordance with all applicable laws; and such
supplements to the foregoing documents and such other information and reports
(including, without limitation non-financial information), as any holder of a
Superior Lease and Mortgage may reasonably request, provided such supplements,
and such information and reports, are consistent with the types of supplements,
reports and information generally utilized by such institutions within the
financing industry.
26. Miscellaneous.
A. This Sublease shall be governed by and construed under and pursuant to
the laws of the State of Florida. Sublandlord and Subtenant hereby agree to
submit to the jurisdiction and the laying of venue for any suit relating to this
Sublease in the County of Highlands, State of Florida.
24
B. The section headings in this Sublease are inserted only as a matter of
convenience for reference and are not to be given any effect in construing this
Sublease.
C. If any of the provisions of this Sublease or the application thereof to
any person or circumstance shall, to any extent, held to be invalid or
unenforceable, the remainder of this Sublease shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
D. All of the terms and provisions of this Sublease shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
E. All prior negotiations and agreements relating to this Sublease and the
Premises are merged into this Sublease. This Sublease may not be amended,
modified or terminated, in whole or in part, nor may any of the provisions be
waived, except by a written instrument executed by the party against whom
enforcement of such amendment, modification, termination or waiver is sought and
unless the same is permitted under the terms and provisions of the Prime Lease.
F. This Sublease shall have no binding force and effect and shall not
confer any rights or impose any obligations upon either party unless and until
both parties have executed it and Sublandlord shall have obtained Prime
Landlord's written consent to this Sublease and delivered to Subtenant an
executed copy of such consent. Under no circumstances shall the submission of
this Sublease in draft form by or to either party be deemed to constitute an
offer for the subleasing of the Premises.
G. This Sublease and all the obligations of Subtenant to pay Rental and
perform all of its other covenants and agreements hereunder shall in no way be
affected, impaired, delayed or excused because Sublandlord or Prime Landlord are
unable to fulfill any of their respective obligations hereunder, either explicit
or implicit, if Sublandlord or Prime Landlord is prevented or delayed from so
doing by reason of strikes or labor trouble or by accident, adjustment of
insurance or by any cause whatsoever reasonably beyond Sublandlord's or Prime
Landlord's control.
H. Each and every right and remedy of Sublandlord under this Sublease shall
be cumulative and in addition to every other right and remedy herein contained
or now or hereafter existing at law or in equity, by statute or otherwise.
I. Subtenant shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of Sublandlord, certify by
written instrument duly executed and acknowledged to any purchaser or proposed
purchaser, or any other person, firm or corporation specified in such request:
(a) as to whether this Sublease has been supplemented or amended, and if so, the
substance and manner of such supplement or amendment; (b) as to the validity and
force and effect of this Sublease; (c) as to the existence of any Event of
Default hereunder; (d) as to the existence of any offsets, counterclaims or
defenses hereto on the part of Subtenant; (e) as to the commencement and
expiration dates of the Term of this Sublease; and (f) as to any other matters
as may be reasonably so requested. Any such certificate may be relied upon by
Sublandlord and any other person, firm or corporation to whom the same may be
exhibited or delivered, and the contents of such certificate shall be binding on
Subtenant.
25
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the day and year first above written.
Witnesses: KINDRED NURSING CENTERS
EAST, L.L.C.
---------------------------------
Name: By:
-------------------------------------
Name:
Title:
---------------------------------
Name:
Witnesses: FI-THE OAKS, LLC
---------------------------------
Name: By:
-------------------------------------
Name:
Title:
---------------------------------
Name:
State of )
)
County of )
I hereby certify that on this day, before me, an officer duly
authorized to administer oaths and take acknowledgments, personally
appeared known to me to be the person described in and who
---------------------
executed the foregoing instrument, who acknowledged before me that he/she is
the of Kindred Nursing Centers East, L.L.C.
-----------
(Check one): [ ] said person(s) is/are personally known to me. [ ] said
person(s) provided the following type of identification:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Notary rubber stamp seal Witness my hand and official seal
in the county and state last aforesaid
this day of June, A.D. 2003.
------
----------------------------------------
Notary Signature
----------------------------------------
Printed Notary Signature
State of )
)
County of )
I hereby certify that on this day, before me, an officer duly
authorized to administer oaths and take acknowledgments, personally
appeared known to me to be the person described in and who
--------------------
executed the foregoing instrument, who acknowledged before me that he/she is
the of FI-The Oaks, LLC.
----------
(Check one): [ ] said person(s) is/are personally known to me. [ ] said
person(s) provided the following type of identification:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Notary rubber stamp seal Witness my hand and official seal
in the county and state last aforesaid
this day of June, A.D. 2003.
------
----------------------------------------
Notary Signature
----------------------------------------
Printed Notary Signature
EXHIBITS TO BE ANNEXED TO THIS SUBLEASE
EXHIBIT A Prime Lease and all Amendments
EXHIBIT B Description of the Premises
EXHIBIT C Description of the Equipment
EXHIBIT D Rent Schedule
EXHIBIT E Ownership Structure of Subtenant
EXHIBIT F Management Agreement
EXHIBIT G INTENTIONALLY OMITTED
EXHIBIT H Operation Transfer Agreement
EXHIBIT I Combined Leases
EXHIBIT J Landlord Consent
EXHIBIT K Permitted Lease, Tenancies or Other Claims
Schedule 1 Insurance Requirements During the Term
EXHIBIT B
FORM OF LEASE AGREEMENT
LEASE AGREEMENT
DATED AS OF JUNE 30, 2003
FOR LEASE EXECUTED BY
KINDRED NURSING CENTERS SOUTH, L.L.C.,
AS LESSOR
AND
/1/,
-----------
AS TENANT
----------
/1/ Please note-there will be one lease for each of the 18 facilities (the 15
Ventas nursing centers, the Highland Terrace assisted living facility, the
Boca Raton facility and the West Palm Beach facility), plus a separate
sublease for the Fairhaven facility on its own form.
TABLE OF CONTENTS
ARTICLE I
Section 1.1 Demise .....................................................1
Section 1.2 Term .......................................................2
ARTICLE II
Section 2.1 Definitions.................................................3
ARTICLE III
Section 3.1 Rent ......................................................11
Section 3.2 Percentage Rent ...........................................11
Section 3.3 Additional Charges ........................................12
Section 3.4 Survival ..................................................13
Section 3.5 Net Lease .................................................13
ARTICLE IV
Section 4.1 Payment of Impositions ....................................13
Section 4.2 Notice of Impositions .....................................14
Section 4.3 Adjustment of Impositions..................................14
ARTICLE V
Section 5.1 No Termination, Abatement, etc.............................14
ARTICLE VI
Section 6.1 Ownership of the Leased Property ..........................15
Section 6.2 Tenant's Personal Property.................................15
ARTICLE VII
Section 7.1 Condition of the Leased Property ..........................15
Section 7.2 Use of the Leased Property ................................16
Section 7.3 Granting of Easements, etc.................................17
ARTICLE VIII
Section 8.1 Compliance with Legal and Insurance Requirements,
Instruments, etc........................................18
Section 8.2 Legal Requirement Covenants ...............................19
Section 8.3 Permitted Encumbrances ....................................19
i
ARTICLE IX
Section 9.1 Maintenance and Repair ....................................21
Section 9.2 Encroachments .............................................22
ARTICLE X
Section 10.1 Construction of Capital Alterations to the Leased
Property ...............................................22
Section 10.2 Capital Alterations Financed by Tenant ....................23
Section 10.3 Capital Alterations Financed by Lessor.....................23
Section 10.4 Non-Capital Alterations ...................................24
Section 10.5 Salvage ...................................................25
Section 10.6 Additional Requirements for Capital Alterations and
Non-Capital Alterations ................................25
Section 10.7 Mortgagee's Consent .......................................26
ARTICLE XI
Section 11.1 Liens .....................................................26
ARTICLE XII
Section 12.1 Permitted Contests ........................................27
ARTICLE XIII
Section 13.1 General Insurance Requirements.............................28
ARTICLE XIV
Section 14.1 Insurance Proceeds.........................................28
Section 14.2 Reconstruction in the Event of Damage or Destruction
Covered by Insurance ...................................28
Section 14.3 Reconstruction in the Event of Damage or Destruction Not
Covered by Insurance ......................................29
Section 14.4 Tenant's Property..........................................30
Section 14.5 Restoration of Tenant's Property...........................30
Section 14.6 No Abatement of Rent ......................................30
Section 14.7 Restoration ...............................................30
Section 14.8 Notice ....................................................31
Section 14.9 Waiver.....................................................31
ARTICLE XV
Section 15.1 Definitions ...............................................31
Section 15.2 Parties' Rights and Obligations ...........................31
Section 15.3 Total Taking ..............................................31
Section 15.4 Partial Taking ............................................31
Section 15.5 Restoration ...............................................32
ii
Section 15.6 Award-Distribution ........................................32
Section 15.7 Temporary Taking ..........................................32
ARTICLE XVI
Section 16.1 Events of Default .........................................32
Section 16.2 Certain Remedies ..........................................36
Section 16.3 Damages ...................................................36
Section 16.4 INTENTIONALLY OMITTED .....................................37
Section 16.5 Waiver ....................................................37
Section 16.6 Application of Funds ......................................37
Section 16.7 Notice to Lessor ..........................................37
Section 16.8 Nature of Remedies ........................................37
Section 16.9 INTENTIONALLY OMITTED .....................................38
Section 16.10 INTENTIONALLY OMITTED .....................................38
Section 16.11 No Mediation or Arbitration ...............................38
ARTICLE XVII
Section 17.1 Lessor's Right to Cure Tenant's Default ...................38
ARTICLE XVIII
ARTICLE XIX
ARTICLE XX
Section 20.1 Holding Over ..............................................41
ARTICLE XXI
Section 21.1 Subordination .............................................41
Section 21.2 Attornment ................................................41
Section 21.3 Mortgagee Cure Rights .....................................42
Section 21.4 Modifications .............................................42
ARTICLE XXII
ARTICLE XXIII
Section 23.1 Risk of Loss ..............................................43
ARTICLE XXIV
Section 24.1 Indemnification ...........................................43
iii
ARTICLE XXV
Section 25.1 Subletting and Assignment .................................45
Section 25.2 Attornment ................................................50
Section 25.3 Sublease Limitation .......................................50
ARTICLE XXVI
Section 26.1 Financial Statements and Reporting ........................50
Section 26.2 Furnishing Notice..........................................52
Section 26.3 Quarterly Meetings; Facility Level Meetings and Reviews ...52
ARTICLE XXVII ................................................................53
Section 27.1 Lessor's Right to Inspect .................................53
ARTICLE XXVIII ...............................................................53
Section 28.1 No Waiver..................................................53
ARTICLE XXIX
ARTICLE XXX
Section 30.1 Acceptance of Surrender....................................53
ARTICLE XXXI
Section 31.1 No Merger of Title ........................................54
ARTICLE XXXII ................................................................54
Section 32.1 Conveyance by Lessor ......................................54
ARTICLE XXXIII ...............................................................54
Section 33.1 Quiet Enjoyment ...........................................54
ARTICLE XXXIV ................................................................55
Section 34.1 Notices ...................................................55
ARTICLE XXXV .................................................................56
Section 35.1 Appraisals ................................................56
Section 35.2 Appraisal Notice...........................................56
Section 35.3 Appointment of Appraisers..................................56
Section 35.4 Appraisal Process..........................................57
Section 35.5 Binding Nature.............................................57
iv
Section 36.6 Costs ........................................................57
ARTICLE XXXVI ................................................................57
ARTICLE XXXVII ...............................................................58
Section 37.1 Intentionally Omitted .....................................58
Section 37.2 Lessor's Option to Purchase the Tenant's Personal
Property ...............................................58
ARTICLE XXXVIII ..............................................................59
Section 38.1 Lessor May Grant Liens ....................................59
ARTICLE XXXIX ................................................................59
Section 39.1 Environmental Indemnity ...................................59
ARTICLE XL
Section 40.1 Miscellaneous .............................................60
Section 40.2 Non-Recourse ..............................................60
Section 40.3 Transition of Operations ..................................60
Section 40.4 Right to Enter ............................................62
Section 40.5 Integration ...............................................62
Section 40.6 Severability ..............................................62
Section 40.7 Subject to Law ............................................62
Section 40.8 Waivers ...................................................62
Section 40.9 Binding Character .........................................62
Section 40.10 Modification ..............................................63
Section 40.11 Forbearance ...............................................63
Section 40.12 INTENTIONALLY OMITTED .....................................63
Section 40.13 Unified Commercial Operating Lease ........................63
v
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter this "Lease") is dated as of the 30th day
of June, 2003, and is between Kindred Nursing Centers South, L.L.C., ("Lessor"),
a Delaware limited liability company, having an office at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and [ ], a Florida limited liability company
having an office at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx
00000 ("Tenant"), the sole member of which is Florida Institute for Long-Term
Care, a Delaware limited liability company ("Parent") having an office at 000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000X, Xx. Xxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H
WHEREAS, pursuant to that certain Operations Transfer Agreement (the
"Operations Transfer Agreement"), date June 18, 2003, the parties thereto agreed
to enter into certain leases and a sublease of various premises used as skilled
nursing facilities located in the State of Florida.
WHEREAS, Lessor owns in fee the healthcare facility commonly known as [ ],
as more particularly described in Exhibit A attached hereto (the "Leased
Property").
WHEREAS, Lessor desires to lease the Leased Property to Tenant and Tenant
desires to lease the Leased Property, from Lessor on the terms and conditions
hereinafter set forth.
WHEREAS, this Lease is one of the leases contemplated in the aforesaid
Operations Transfer Agreement.
NOW, THEREFORE, in consideration of the agreement set forth herein and for
other good and valuable consideration, the parties hereto agree as follows:
ARTICLE I
Section 1.1 Demise. Effective as of the Commencement Date, upon and subject
to the terms and conditions hereinafter set forth, Lessor hereby leases to
Tenant, and Tenant hereby leases from Lessor, the Leased Property:
(i) the tracts, pieces and parcels of land, as more particularly
described in Exhibit A attached hereto (collectively, the "Land"),
(ii) all buildings, structures, Fixtures (as hereinafter defined) and
other improvements of every kind including, but not limited to, alleyways
and connecting tunnels, sidewalks, utility pipes, conduits and lines
(on-site and off-site), parking areas and roadways appurtenant to such
buildings and structures presently situated upon the Land and Capital
Alterations (collectively, the "Leased Improvements"),
(iii) all easements, rights and appurtenances relating to the Land and
the Leased Improvements, and
(iv) all permanently affixed equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof,
now and hereafter located in, on or used in connection with, and
permanently affixed to or incorporated into the Leased Improvements,
including, without limitation, all furnaces, boilers, heaters, electrical
equipment, heating, plumbing, lighting, ventilating, refrigerating,
incineration, air and water pollution control, waste disposal, air-cooling
and air-conditioning systems and apparatus, sprinkler systems and fire and
theft protection equipment, and built-in oxygen and vacuum systems, all of
which to the greatest extent permitted by law, are hereby deemed by the
parties hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically
excluding all items included within the category of Tenant's Personal
Property as defined in Article II below (collectively the "Fixtures"),
SUBJECT, HOWEVER, to the Permitted Encumbrances (as defined in Section 2.1
hereof).
Section 1.2 Term. A. The term ("Term") of this Lease shall commence on the
Commencement Date and, unless sooner terminated as herein provided, shall expire
on the Expiration Date.
X. Xxxxxx shall have the right to terminate this Lease at any time during
the Term following July 31, 2003, upon prior written notice to Tenant, which
termination shall become effective on the date that is no more than 30 days and
no less than 20 days following the delivery of such notice by Lessor. Without
limiting any of the foregoing, upon any termination of the Lease pursuant to
this section, the provisions of Section 40.3 hereof regarding transfer of
operations at the Leased Property from Tenant to Lessor shall automatically
apply.
C. Simultaneously with the closing of the sale of the Leased Property,
pursuant to the Purchase and Sale Agreement, this Lease shall automatically
terminate without any notice or further action.
ARTICLE II
Section 2.1 Definitions. For all purposes of this Lease, except as
otherwise expressly provided or unless the context otherwise requires, (i) the
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular, (ii) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles as at the time applicable, (iii) all
references in this Lease to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Lease and (iv) the words "herein," hereof" and "hereunder" and other words
of similar import refer to this Lease as a whole and not to any particular
Article, Section or other subdivision:
"Additional Charges": As defined in Article III.
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"Affiliate": means, with respect to any Person, any other Person directly
or indirectly controlling (including, but not limited to, all partners,
directors, officers and members of such Person), controlled by or under direct
or indirect common control with any such Person. A Person shall be deemed to
control a corporation, a partnership, a trust, or a limited liability company if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such person, through the ownership
of voting securities, partnership interests or other equity interests.
"Ancillary Agreement": As defined in Section 25.1.7.
"Authorizations": All licenses, operating permits, provider agreements,
provider status, certificates of need, certificates of exemption, approvals,
waivers, variances and other governmental, quasi-governmental and private
authorizations necessary for the operation of the Leased Property for its
Primary Intended Use.
"Award": As defined in Article XV.
"Business Day": Each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which national banks in the City of New York, New York are
authorized, or obligated, by law or executive order, to close.
"Capital Alterations": With respect to the Leased Property: (i) the
addition of one or more new buildings, or (ii) the annexation of one or more
additional structures to any portion of any of the Leased Improvements on the
Leased Property, or (iii) the material expansion or contraction of the existing
improvements on the Leased Property, or (iv) any alteration or modification
affecting the foundation, floor slab, roof or roof structure, curtain wall,
structural columns, beams or shafts or other structural components of any of the
Leased Improvements on the Leased Property (other than any alterations or
modifications affecting any of such components that do not in any material
respect adversely affect the design, efficacy and/or quality of any such
component), or (v) any alteration or modification affecting any of the
electrical, plumbing, life safety, heating, ventilating, air conditioning or
other operating systems serving any of the Leased Improvements on the Leased
Property (other than any alterations or modifications affecting any of such
systems that do not in any material respect adversely affect the design,
operating capacity, efficiency and/or quality of any such system), or (vi) any
alterations or modifications to the Leased Property, the cost of which
(excluding cosmetic refurbishing alterations or modifications, such as painting,
wallpapering or carpeting), when taken together with all other alterations and
modifications (excluding cosmetic refurbishing alterations or modifications)
performed on the Leased Property in the twelve (12) month period immediately
preceding the subject alterations or modifications, would exceed Two Hundred
Thousand Dollars ($200,000). "Capital Alterations" shall include, without
limitation, (1) the construction of a new wing or new story on the Leased
Property, (2) the repair, replacement, restoration, remodeling or rebuilding of
the existing improvements on the Leased Property or any portion thereof, where
the purpose and effect of such work is to provide a functionally new facility
needed to provide services not previously offered, and (3) any expansion,
construction, renovation or conversion in order to increase the bed capacity of
the Facility, to change the purpose for which such beds are utilized or to
improve materially the quality of the Facility.
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"Capital Alterations Cost": The term "Capital Alterations Cost" shall mean
the cost of any Capital Alteration proposed to be made by Tenant at the Leased
Property, whether or not paid for by Tenant or Lessor. Such cost shall include
(a) the cost of construction of the Capital Alterations (including site
preparation and improvement, materials, labor, supervision, and certain related
design, engineering and architectural services), the cost of any fixtures, the
cost of construction financing and miscellaneous costs approved by Lessor, (b)
if agreed to by Lessor in writing, in advance, the cost of any land contiguous
to the Leased Property that is (1) to become part of the Leased Property and (2)
is purchased for the purpose of placing thereon the Capital Alterations or any
portion thereof or of providing means of access to such Capital Alterations or
any existing improvements on the Leased Property or of providing parking
facilities for such Capital Alterations or such existing improvements, including
the cost of surveying the same, (c) the cost of insurance, real estate taxes,
water and sewage charges and other carrying charges for such Capital Alterations
during construction, (d) the cost of title insurance, (e) reasonable fees and
expenses of legal counsel, (f) filing, registration and recording taxes and
fees, (g) documentary stamp taxes, if any, and (h) all reasonable costs and
expenses of Lessor and Tenant and, if agreed to in advance by Lessor, any
Lending Institution which has committed to finance the Capital Alterations,
including, but not limited to, (i) the reasonable fees and expenses of their
respective legal counsel, (ii) all printing expenses, (iii) the amount of any
filing, registration and recording taxes and fees, (iv) documentary stamp or
transfer taxes, if any, (v) title insurance charges and appraisal fees, if any,
(vi) rating agency fees, if any, and (vii) commitment fees, if any, charged by
any Lending Institution advancing or offering to advance any portion of the
financing for such Capital Alterations.
"Code": The Internal Revenue Code of 1986, as amended.
"Combined Leases" shall mean the leases and sublease listed on Exhibit F
attached hereto.
"Commencement Date": The date hereof.
"Condemnation, Condemnor": As defined in Article XV.
"Date of Taking": As defined in Article XV.
"Encumbrance": As defined in Article XXXVIII.
"Event of Default": As defined in Article XVI.
"Expiration Date": shall mean the date which is one year from the date of
the Commencement Date.
"Facility": The facility being operated or proposed to be operated on the
Leased Property.
"Facility Mortgage": Any Encumbrance placed on the Leased Property in
accordance with Section 38 hereof, which may now or hereafter affect Lessor's
interest in the Leased Property including, without limitation, the Fee
Mortgages.
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"Facility Mortgagee": The holder of any mortgage, deed of trust or other
security agreement securing any Facility Mortgage including without limitation,
the Fee Mortgagee.
"Facility Termination": As defined in Section 40.3.
"Fair Market Value": The price that a willing buyer not compelled to buy
would pay a willing seller not compelled to sell for the Leased Property,
including all Capital Alterations, and (a) assuming the same is unencumbered by
this Lease, (b) determined in accordance with the appraisal procedures set forth
in Article XXXV or in such other manner as shall be mutually acceptable to
Lessor and Tenant, and (c) not taking into account any reduction in value
resulting from any indebtedness to which the Leased Property is subject except
as expressly provided hereinbelow. In determining such Fair Market Value the
positive or negative effect on the value of the Leased Property attributable to
the interest rate, amortization schedule, maturity date, prepayment penalty and
other terms and conditions of any encumbrance which is not removed at or prior
to the closing of the transaction as to which such Fair Market Value
determination is being made shall be taken into account.
"Fee Mortgages": Those certain fee mortgages granted by Kindred to XX
Xxxxxx Xxxxx ("Fee Mortgagee"), formerly known as Xxxxxx Guaranty Trust Company
of New York, with respect to the Leased Property.
"Fiscal Year": The twelve (12) month period from January 1 to December 31.
"Fixed Rent": shall have the meaning given to it in Section 3.1 hereof.
"Fixtures": As defined in Article I.
"Impositions": Shall mean for the Leased Property collectively, all taxes
(including, without limitation, all taxes imposed under the laws of the State,
as such laws may be amended from time to time, and all ad valorem, sales and
use, single business, gross receipts, transaction privilege, rent or similar
taxes as the same relate to or are imposed upon any rents from the Leased
Property or upon Tenant or its business conducted upon the Leased Property, but
excluding any tax based on the net income or net profit of Lessor derived from
any such rents), assessments (including, without limitation, all assessments for
public improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not to be completed within the Term), water,
sewer or other rents and charges, excises, tax levies, fees (including, without
limitation, license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property or any rents therefrom or the business conducted
thereon by Tenant (including all interest and penalties thereon due to any
failure in payment by Tenant), which at any time prior to, during or in respect
of the Term hereof may be assessed or imposed on or in respect of or be a lien
upon (a) Lessor or Lessor's interest in the Leased Property, (b) the Leased
Property or any part thereof or any rent therefrom or any estate, right, title
or interest therein, or (c) any occupancy, operation, use or possession of, or
sales from, an activity conducted on, or in connection with the Leased Property
or the leasing or use of the Leased Property or any part thereof by Tenant;
provided, however, nothing contained in this Lease shall be construed to require
Tenant to pay (1) any tax based on
5
net income (whether denominated as a franchise or capital stock or other tax)
imposed on Lessor or any other person or (2) any transfer, or net revenue tax of
Lessor or any other person or (3) any tax imposed with respect to the sale,
exchange or other disposition by Lessor of the Leased Property or the proceeds
thereof, except to the extent that any tax, assessment, tax levy or charge,
which Tenant is obligated to pay pursuant to the preceding provisions of this
definition and which is in effect at any time during the Term hereof is totally
or partially repealed, and a tax, assessment, tax levy or charge set forth in
clause (1) or (2) is levied, assessed or imposed expressly in lieu thereof.
"Indemnified Parties": Lessor, any Facility Mortgagee, and the Agents and
Affiliates of each.
"Insurance Requirements": All terms of any insurance policy required by
this Lease with respect to the applicable Leased Property and all requirements
of the issuer of any such policy.
"Kindred" shall mean collectively, Kindred Healthcare, Inc. and Kindred
Healthcare Operating, Inc.
"Land": As defined in Article I.
"Lease": As defined in the preamble hereof.
"Lease Year": shall mean, the date of the Commencement Date through the
date following one year later, each year of the Term.
"Leased Improvements"; and "Leased Property": Each as defined in Section
1.1.
"Legal Requirements": As to the Leased Property, all federal, state,
county, parish, municipal and other governmental statutes, laws, rules, orders,
regulations, ordinances, judgments, decrees and injunctions affecting the Leased
Property or the maintenance, construction, use, operation or alteration thereof,
whether now or hereafter enacted and in force, including, without limitation,
(i) any licensure requirements, certification requirements under applicable
federal and/or state cost reimbursement programs, including Medicare and
Medicaid (provided the Facility participates in such reimbursement), building
codes and zoning regulations, (ii) any which may (x) require repairs,
modifications or alterations in or to the Leased Property or (y) in any way
adversely affect the use and enjoyment thereof, and (iii) all permits, licenses,
certificates of need, authorizations and regulations necessary to operate the
Leased Property for its Primary Intended Use.
"Lending Institution": Any insurance company, federally insured commercial
or savings bank, national banking association, savings and loan association,
credit union, employees' welfare, pension or retirement fund or system,
corporate profit sharing or pension trust, college or university, endowment
fund, real estate investment trust, or other institutional lender or financial
enterprise, including, without limitation, any corporation qualified to be
treated for federal tax purposes as a real estate investment trust, having a net
worth of at least $50,000,000 acting on its own behalf or as agent on behalf of
other Lending Institutions.
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"Lessor": As defined in the preamble hereof.
"Litigation Costs": All costs reasonably incurred by Lessor in connection
with the enforcement of any provision of this Lease and/or in connection with
any third-party claim against Lessor or the Leased Property arising on account
of or in connection with any default or Event of Default hereunder by Tenant,
including, without limitation, costs reasonably incurred by Lessor in
investigating, settling and/or prosecuting claims and for attorney's and legal
assistant fees and expenses, court costs and fees and consultant and witness
fees and expenses.
"Management Agreement": the Management Agreement, between Tenant and
Manager regarding the management of the Leased Property, substantially in the
form attached hereto as Exhibit E.
"Manager": Senior Health Management-Gold Coast, LLC, a Florida limited
liability company.
"Mature Care" means Mature Care Insurance Company, a Turks & Caicos Islands
corporation.
"Medicaid": A state program of medical aid established under Title XVIII of
the Social Security Act of 1965, as amended, and any successor statute thereto
and any successor programs.
"Medicare": The program of medical care benefits provided under Title XVIII
of the Social Security Act of 1965, as amended, and any successor statute
thereto and any successor programs thereto.
"Non-Capital Alterations": As defined in Section 10.4.
"Officer's Certificate": A certificate of Tenant signed by the chairman of
the board of directors, the president, any vice president, the secretary, the
treasurer, the chief operating officer, the chief financial officer, the general
counsel or any other officer authorized to so sign by the board of directors or
by-laws of Tenant, or the general partner of Tenant or the managing member of
Tenant, as applicable, or any other person whose power and authority to act has
been authorized by delegation in writing by any person duly authorized to make
such delegation of authority.
"Operations Transfer Event": Any of the following events: (a) a default
under the terms of this Lease, (b) the expiration or earlier termination of the
Term, or (c) commencement by Tenant of the winding down of operations at the
Leased Property (whether by notice to regulatory authorities, notice to tenants
or residents at the Leased Property, or otherwise).
"Overdue Rate": Four (4%) percent in excess of the prime or base reference
lending rate from time to time quoted by XX Xxxxxx Xxxxx (or any successor
thereto).
"Patient Revenues": Revenues generated from the sale of goods or services
at or through the Leased Property whether by Tenant or any subtenant or licensee
of Tenant, or any other party, which revenues are primarily derived from
services provided to patients or residents (including, without limitation,
revenues received or receivable for the use of or otherwise by
7
reason of all rooms, beds and other facilities provided, meals served, services
performed or goods sold at the Leased Property but excluding revenues received
by Tenant as rent or other consideration from a permitted assignment of this
Lease or any part thereof or a permitted sublease of any Leased Property or any
part thereof).
"Parent" shall have the meaning set forth in the preamble hereof.
"Permitted Alteration": Any Capital Alteration or Non-Capital Alteration to
a Facility or Leased Property that is permitted pursuant to the terms of this
Lease.
"Permitted Encumbrances": (a) all easements, covenants, conditions,
restrictions, agreements and other matters with respect to the Leased Property
that are of record as of the Commencement Date; (b) all easements, covenants,
conditions, restrictions, agreements and other matters with respect to the
Leased Property, whether or not of record, that are executed by Tenant or
approved or consented to in writing by Tenant; (c) any easement or utility
agreement entered into by Lessor with respect to the Leased Property after the
Commencement Date, subject to Tenant's consent, in its sole discretion; (d) any
agreement required pursuant to any Legal Requirement entered into by Lessor
after the Commencement Date that affects title to the Leased Property, subject
to Tenant's consent, not to be unreasonably withheld, conditioned or delayed;
(e) any matter affecting title to the Leased Property or any portion thereof
that is permitted under Section 7.3 or Section 9.2; and (f) any other matters
affecting title to the Leased Property or any portion thereof caused by Tenant
or its assignees or sublessees or their respective agents or employees,
provided, however, that, for purposes of Section 24.1 below, "Permitted
Encumbrances" shall not include any Facility Mortgage or other lien created by
Lessor or its agents or employees and, for purposes of Section 8.3 below,
"Permitted Encumbrances" shall not include any Facility Mortgage or other lien
created by Lessor or its agents or employees.
"Person": Any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or partnership,
joint venture, association, joint stock company, bank, trust, estate,
unincorporated organization, any federal, state, county, or municipal government
(or agency or political subdivision thereof), endowment fund or other form of
entity.
"Plans and Specifications": As defined in Section 10.1.
"Primary Intended Use": As defined in Section 7.2.2.
"Prime Rate": On any date, a rate equal to the annual rate on such date
announced by Citibank, N.A., or any successor thereof, to be its prime rate.
"Purchase and Sale Agreement": That certain Purchase and Sale Agreement,
dated June 18, 2003, between Lessor, Kindred Healthcare Operating, Inc., Kindred
Nursing Centers East, L.L.C., and Kindred Nursing Centers South, L.L.C., as
seller, and WKTM, as purchaser, relating to the Leased Property and the other
properties leased by affiliates of Tenant under the Combined Leases.
"Qualified Successor": As defined in Section 40.3.
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"Reimbursement Period": As defined in Section 40.3.
"Rent": Collectively, Fixed Rent, and Additional Charges (as defined in
Section 3.3 hereof).
"Section 40.3 Notice": As defined in Section 40.3.
"State": The State or Commonwealth in which the Leased Property is located.
"Sublease Rent Payments": As defined in Section 25.1.7.
"Subsidiaries": The corporations or other entities of which securities or
similar ownership interests representing (i) ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
or (ii) a majority of the economic interest therein, are at the time directly or
indirectly owned by Tenant (individually, a "Subsidiary").
"Taking": A taking or voluntary conveyance during the Term of all or part
of the applicable Leased Property, or any interest therein or right accruing
thereto or use thereof, as the result of, or in settlement of any condemnation
or other eminent domain proceeding affecting the Leased Property whether or not
the same shall have actually been commenced.
"Tenant": As defined in the preamble hereof.
"Tenant's Personal Property": All motor vehicles, machinery, equipment,
furniture, furnishings, movable walls or partitions, computers or trade fixtures
or all other personal property, and consumable inventory and supplies, now owned
or hereafter acquired by Tenant and located on the Leased Property or used or
useful in Tenant's business on the Leased Property, including without limitation
all modifications, replacements, alterations and additions to such personal
property installed at the expense of Tenant, except items, if any, included
within the definition of Fixtures.
"Term": As defined in Section 1.2.
"Unavoidable Delays": Delays due to strikes, lockouts, inability to procure
materials, power failure, acts of God, governmental restrictions, enemy action,
civil commotion, fire, unavoidable casualty or other causes beyond the control
of the party responsible for performing an obligation hereunder, provided that
lack of funds shall not be deemed a cause beyond the control of either party
hereto unless such lack of funds is caused by the failure of the other party
hereto to perform any obligations of such party, under this Lease, or any
guaranty of this Lease, including any obligation to provide financing undertaken
by Lessor pursuant to Article X below.
"Unsuitable For Its Primary Intended Use": A state or condition of the
Facility located at the applicable Leased Property such that, by reason of
damage or destruction, or a partial taking by condemnation, in the good faith
judgment of Tenant, the Facility cannot be operated on a commercially
practicable basis for its Primary Intended Use taking into account, among other
relevant factors, the number of usable beds affected by such damage or
destruction or partial taking; provided, however that the Facility shall not be
deemed to be "Unsuitable For Its Primary Intended Use" if the Leased Property
can, within one (1) year after the occurrence of such
9
damage, destruction or taking, be restored to substantially the same state and
condition as existed immediately prior to such damage, destruction or taking.
"WKTM": WKTM-Florida, LLC, a Delaware limited liability company.
"Working Capital Facility": That certain working capital loan made by
CapitalSource Finance LLC, as lender to Tenant, the other tenants and subtenants
under the Combined Leases and Parent, as borrower, pursuant to that certain
Revolving Credit and Security Agreement, dated on or about the date hereof.
ARTICLE III
Section 3.1 Rent.
Section 3.1.1 Tenant covenants and agrees to pay to Lessor, in lawful
money of the United States, fixed rent ("Fixed Rent") on a monthly basis in the
amount set forth on Exhibit B attached hereto. The first monthly installment of
Fixed Rent payable under this Lease shall be paid upon the Commencement Date.
Section 3.1.2 Fixed Rent, as set forth on Exhibit B, and monthly
installments, if any, of Additional Charges shall be due and payable in equal
monthly installments in advance in immediately available funds by wire transfer
(pursuant to the wire instructions delivered by Lessor to Tenant) or at such
other place as Lessor may designate in writing from time to time during the
Term, on the first day of each calendar month of the Term. If the first day of a
calendar month is not a Business Day, such installment shall be due on the first
Business Day preceding the first calendar day of such month. If the Commencement
Date shall be other than the first day of a calendar month or the expiration of
the Term is other than the last day of a calendar month, the monthly
installments of Fixed Rent and Additional Charges payable hereunder for any such
month shall be prorated on a per diem basis based on the actual number of days
in such month. On the first day of the calendar month following the Commencement
Date, if the Commencement Date occurs after the first day of a calendar month,
Tenant shall receive a credit for the unapplied portion of the Rent deposit made
pursuant to Section 3.1.1.
Section 3.2 Intentionally omitted.
Section 3.3 Additional Charges. In addition to Fixed Rent payable with
respect to the Leased Property, Tenant shall pay and discharge as and when due
and payable the following (collectively "Additional Charges"):
(1) Impositions. Tenant shall pay all Impositions before any fine, penalty,
interest or cost may be added for non-payment, such payments to be made directly
to the taxing authorities where feasible or, if otherwise required by law, to
Lessor, and shall promptly upon request, furnish to Lessor copies of official
receipts or other satisfactory proof evidencing such payments. If any such
Imposition may, at the option of the taxpayer, lawfully be paid in installments
(whether or not interest shall accrue on the unpaid balance of such Imposition),
subject to the terms of any applicable Facility Mortgage, Tenant may exercise
the option to pay same (and any accrued interest on the unpaid balance of such
Imposition) in installments and, in such event,
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shall pay such installments during the Term as the same may become due and
before any fine, penalty, premium, further interest or cost may be added
thereto.
(2) Utility Charges. Tenant shall pay all charges for electricity, power,
gas, oil, water, sanitary and storm sewer, refuse collection, medical waste
disposal and other utilities used or consumed in connection with the Leased
Property during the Term.
(3) Insurance Premiums. Tenant shall pay all premiums for the insurance
coverage required to be maintained pursuant to Article XIII hereof.
(4) Other Charges. Tenant shall pay all other amounts, liabilities and
obligations that Tenant assumes or agrees to pay under this Lease, including,
without limitation, all agreements to indemnify Lessor under Sections 12.1 and
24.1 and any and all fees, costs and expenses incurred by Tenant in the
operation of its business at the Facility.
(5) Late Payment of Rent. If any installment of Fixed Rent or Additional
Charges (but only as to those Additional Charges which are payable directly to
Lessor or Lessor's agent or assignee) shall not be paid within five (5) Business
Days after its due date, Tenant will pay to Lessor on demand a late charge (to
the extent permitted by law) computed at the Overdue Rate (or at the maximum
rate permitted by law, whichever is the lesser) on the amount of such
installment, from the due date of such installment to the date of payment
thereof.
To the extent that Tenant pays any Additional Charges to Lessor pursuant to
any requirement of this Lease, Tenant shall be relieved of its obligation to pay
such Additional Charges to the entity to which they would otherwise be due. If
any Facility Mortgagee shall so require, or if any Additional Charges shall not
be paid to a third party payee within five (5) Business Days after its due date,
Lessor may at any time thereafter, at Lessor's option, require Tenant to deposit
into an escrow account under the sole dominion and control of Lessor (or the
applicable Facility Mortgagee), on the first day of each and every month, an
amount sufficient to insure that such escrow account shall contain an amount
sufficient to make such payment on its next due date, in which event Lessor
shall make all future payments for such expense from the escrow account. In the
event of any failure by Tenant to pay any Additional Charges when due, Tenant
shall promptly pay and discharge, as Additional Charges, every fine, penalty,
interest and cost that may be added for non-payment or late payment of such
items. Lessor shall have all legal, equitable and contractual rights, powers and
remedies provided either in this Lease or by statute or otherwise in the case of
non-payment of Rent.
Section 3.4 Survival. Tenant's obligation to pay any Rent owing hereunder
with respect to any period on or prior to the expiration or termination of this
Lease (including, without limitation, any extensions of the Term), shall survive
any such expiration or termination.
Section 3.5 Net Lease. The Rent shall be paid absolutely net to Lessor,
without any rights of deduction, set-off or abatement, so that this Lease shall
yield to Lessor the full amount of the installments of Fixed Rent and Additional
Charges, throughout the Term, including, without limitation, any extensions of
the Term. This Lease is intended to be and shall be construed as an absolutely
net lease pursuant to which Lessor shall not, under any circumstances or
conditions, whether presently existing or hereafter arising, and whether
foreseen or unforeseen
11
by the parties, be required to make any payment or expenditure of any kind
whatsoever or be under any other obligation or liability whatsoever, except as
expressly set forth herein.
ARTICLE IV
Section 4.1 Payment of Impositions. Subject to Article XII relating to
permitted contests, Tenant shall pay all Impositions as set forth in Section
3.3. Tenant's obligation to pay such Impositions shall be deemed absolutely
fixed upon the date such Impositions become a lien upon the Leased Property or
any part thereof. Lessor, at its expense, shall, to the extent permitted by
applicable law, prepare and file all tax returns and reports as may be required
by governmental authorities in respect of Lessor's net income, gross receipts,
franchise taxes and taxes on its capital stock, and Tenant, at its expense,
shall, to the extent permitted by applicable laws and regulations, prepare and
file all other tax returns and reports in respect of any Imposition as may be
required by governmental authorities. If any refund shall be due from any taxing
authority in respect of any Imposition paid by Tenant, the same shall be paid
over to or retained by Tenant if no Event of Default shall have occurred
hereunder and be continuing. Any such funds retained by Lessor due to an Event
of Default shall be applied as provided in Article XVI. Lessor and Tenant shall,
upon request of the other, provide such data as is maintained by the party to
whom the request is made with respect to the Leased Property as may be necessary
to prepare any required returns and reports. In the event governmental
authorities classify any property covered by this Lease as personal property,
Tenant shall file all personal property tax returns in such jurisdictions where
it may legally so file. Lessor, to the extent it possesses the same, and Tenant,
to the extent it possesses the same, will provide the other party, upon request,
with cost and depreciation records necessary for filing returns for any property
so classified as personal property. Where Lessor is legally required to file
personal property tax returns, Tenant will be provided with copies of assessment
notices indicating a value in excess of the reported value in sufficient time
for Tenant to file a protest. Tenant may, upon notice to Lessor, at Tenant's
option and at Tenant's sole cost and expense, protest, appeal, or institute such
other proceedings as Tenant may deem appropriate to effect a reduction of real
estate or personal property assessments and Lessor, at Tenant's expense as
aforesaid, shall fully cooperate with Tenant in such protest, appeal, or other
action (including, without limitation, signing all required forms and documents
reasonably necessary for Tenant to file and prosecute such appeal, protest or
other action), provided that Tenant shall indemnify Lessor from and against all
losses, claims, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees) suffered or incurred by Lessor and caused by such
cooperation, including, without limitation, signing or providing any such forms
and documents). Xxxxxxxx for reimbursement by Tenant to Lessor of personal
property taxes shall be accompanied by copies of a xxxx therefor and payments
thereof which identify the personal property with respect to which such payments
are made.
Section 4.2 Notice of Impositions. Lessor shall give prompt notice to
Tenant of all Impositions payable by Tenant hereunder of which Lessor at any
time has knowledge, but Lessor's failure to give any such notice shall in no way
diminish Tenant's obligations hereunder to pay such Impositions.
Section 4.3 Adjustment of Impositions. Impositions imposed in respect of
the tax-fiscal period during which the Term terminates or expires shall be
adjusted and prorated between Lessor and Tenant, whether or not such Imposition
is imposed before or after such termination or
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expiration, and Tenant's obligation to pay its prorated share thereof shall
survive such termination or expiration.
ARTICLE V
Section 5.1 No Termination, Abatement, etc. Except as otherwise
specifically provided in this Lease, Tenant, to the extent permitted by law,
shall remain bound by this Lease in accordance with its terms and shall neither
take any action without the consent of Lessor to modify, surrender or terminate
the same, nor seek nor be entitled to any abatement, deduction, deferment or
reduction of Rent, or set-off against the Rent, nor shall the respective
obligations of Lessor and Tenant be otherwise affected by reason of (a) any
damage to, or destruction of, the Leased Property or any portion thereof from
whatever cause or any Taking of the Leased Property or any portion thereof, (b)
the interruption or discontinuance of any service or utility servicing the
Leased Property, (c) the lawful or unlawful prohibition of, or restriction upon,
Tenant's use of the Leased Property, or any portion thereof, the interference
with such use by any person, corporation, partnership or other entity, or by
reason of eviction by paramount title, (d) any claim which Tenant has or might
have against Lessor or by reason of any default or breach of any warranty by
Lessor under this Lease or any other agreement between Lessor and Tenant, or to
which Lessor and Tenant are parties, (e) any bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding up
or other proceedings affecting Lessor or any assignee or transferee of Lessor,
(f) any revocation, suspension or non-renewal of any license, permit, approval
or other Authorization necessary to operate any Facility, (g) any withholding,
non-payment, reduction or other adverse change respecting any Medicare, Medicaid
or other reimbursements due or available to Tenant with respect to any Facility,
or (h) for any other cause whether similar or dissimilar to any of the foregoing
other than a discharge of Tenant from any such obligations as a matter of law.
Tenant hereby specifically waives all rights, arising from any occurrence
whatsoever, which may now or hereafter be conferred upon it by law to (i)
modify, surrender or terminate this Lease or quit or surrender the Leased
Property or any portion thereof, or (ii) entitle Tenant to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by Tenant
hereunder. The obligations of Lessor and Tenant hereunder shall be separate and
independent covenants and agreements and the Rent and all other sums payable by
Tenant hereunder shall continue to be payable in all events unless the
obligations to pay the same shall be terminated by termination of this Lease
other than by reason of an Event of Default.
ARTICLE VI
Section 6.1 Ownership of the Leased Property. Tenant acknowledges that the
Leased Property is the property of Lessor and that Tenant has only the right to
the exclusive possession and use of the Leased Property upon and subject to the
terms and conditions of this Lease. Notwithstanding anything to the contrary
contained in this Lease, in the case of any easement or other rights that are
appurtenant to any property owned by Lessor, Tenant agrees that Lessor makes no
representation or warranty relative to Lessor's title thereto or whether such
appurtenances are encumbered, and Lessor shall not be obligated to discharge any
liens or encumbrances with respect to, or otherwise to defend, Lessor's right,
title and interest, if any, in any such appurtenances. Tenant agrees that such
appurtenances shall constitute Permitted Encumbrances, as to which Tenant shall
have the obligations set forth in Section 8.3 and Section
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24.1 of this Lease, provided that Tenant shall not be obligated to defend or
preserve any such appurtenances against any mortgages or other liens created by
the owner of the property burdened by the aforesaid appurtenances that are
senior in priority to Lessor's aforesaid appurtenant rights.
Section 6.2 Tenant's Personal Property. Tenant may (and shall as provided
hereinbelow), at its expense, install, affix or assemble or place on any parcels
of the Land or in any of the Leased Improvements, any items of Tenant's Personal
Property and Tenant shall, subject to the conditions set forth below and except
for any Tenant's Personal Property that is purchased by Lessor pursuant to
Section 37.2 below, remove the same upon the expiration or any prior termination
of the Term. Tenant shall provide and maintain during the entire Term all such
Tenant's Personal Property as shall be necessary in order to operate the
Facility in compliance with all licensure and certification requirements, in
compliance with all applicable Legal Requirements and Insurance Requirements and
otherwise in accordance with customary practice in the industry for the Primary
Intended Use. All of Tenant's Personal Property not removed by Tenant within
twenty-one days following the expiration or earlier termination of this Lease or
sold to Lessor pursuant to Section 37.2 below shall be considered abandoned by
Tenant and may be appropriated, sold, destroyed or otherwise disposed of by
Lessor without first giving notice thereof to Tenant and without any payment to
Tenant and without any obligation to account therefor or otherwise disposed of
in accordance with applicable law. Tenant will, at its expense, restore the
Leased Property to the condition required by Section 9.1(d), including repair of
all damage to the Leased Property caused by the removal of Tenant's Personal
Property, whether effected by Tenant or Lessor.
ARTICLE VII
Section 7.1 Condition of the Leased Property. Tenant acknowledges receipt
and delivery of possession of the Leased Property and that Tenant has examined
and otherwise has knowledge of the condition of the Leased Property prior to the
execution and delivery of this Lease and has found the same to be in good order
and repair and satisfactory for its purposes hereunder. Tenant is leasing the
Leased Property "as is" in its present condition. Tenant waives any claim or
action against Lessor in respect of the condition of the Leased Property. LESSOR
MAKES NO WARRANTY OR REPRESENTATION EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED
PROPERTY HAS BEEN INSPECTED BY TENANT AND IS SATISFACTORY TO IT.
Section 7.2 Use of the Leased Property.
Section 7.2.1 Tenant shall maintain or cause to be maintained all
licenses, permits, approvals and other Authorizations needed to use and operate
for its Primary Intended Use (or any other use permitted under the terms of this
Lease) the Leased Property and the Facility located at the Leased Property under
and in accordance with all applicable local, state and federal laws and all
applicable state and federal programs including but not limited to
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appropriate certifications for reimbursement and licensure. All of such
Authorizations shall, to the maximum extent permitted by law, relate and apply
exclusively to the Leased Property and/or the Facility operated thereon. Tenant
acknowledges and agrees that, subject to applicable law, the certificates of
need issued for the Facility is appurtenant to the Facility, both during and
following the termination or expiration of the Term. In jurisdictions where the
certificate of need is issued to Tenant or its subtenant, as the Facility
operator, Tenant agrees that it shall cooperate with Lessor, in accordance with
Section 40.3 hereof, to turn over all of Tenant's rights in connection with such
certificate of need to Lessor or its designee.
Section 7.2.2 After the Commencement Date and during the entire Term,
Tenant shall continuously use the Leased Property and the Leased Improvements
thereof as a skilled nursing center (such use being the Leased Property's
"Primary Intended Use"). Tenant shall not use the applicable Leased Property or
any portion thereof for any other use without the prior written consent of
Lessor, which consent shall not be unreasonably withheld, delayed or
conditioned. No use shall be made or permitted to be made of the Leased
Property, and no acts shall be done, that will cause the cancellation of any
insurance policy covering the Leased Property or any part thereof, nor shall
Tenant sell or otherwise provide to occupants or patients therein, or permit to
be kept, used or sold in or about the Leased Property any article which may be
prohibited by law or by the standard form of fire insurance policies, or any
other insurance policies required to be carried hereunder, or fire underwriters
regulations. Tenant shall, at its sole cost, comply with all of the requirements
pertaining to the Leased Property or other improvements of any insurance board,
association, organization or company necessary for the maintenance of insurance,
as herein provided, covering the Leased Property and Tenant's Personal Property.
Section 7.2.3 Tenant shall during the Term operate continuously the
Leased Property in accordance with all applicable federal, state and local laws
as a provider of health care services in accordance with its Primary Intended
Use and maintain its certifications for reimbursement and licensure and its
accreditation, if compliance with accreditation standards is required to
maintain the operations of the Facility and if a failure to comply would
adversely affect operations of the Facility.
Section 7.2.4 Tenant shall not commit or suffer to be committed any
waste on the Leased Property, or in the Facility, nor shall Tenant cause or
permit any nuisance thereon. Tenant shall not take or omit to take any action,
the taking or omission of which may materially impair the value or the
usefulness of the Leased Property or any part thereof for its Primary Intended
Use.
Section 7.2.5 Tenant shall neither suffer nor permit the Leased
Property or the portion thereof, including any Capital Alteration whether or not
financed by Lessor, or Tenant's Personal Property, to be used in such a manner
as (i) might reasonably tend to impair Lessor's (or Tenant's, as the case may
be) title thereto or to any portion thereof, or (ii) may reasonably make
possible a claim or claims of adverse usage or adverse possession by the public,
as such, or of implied dedication of the Leased Property or any portion thereof.
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Section 7.3 Granting of Easements, etc.
Section 7.3.1 Lessor and Tenant will, from time to time so long as no
Event of Default has occurred and is continuing, at the request of the other
party and at such requesting party's cost and expense (but subject to the
approval of the non-requesting party, which approval shall not be unreasonably
withheld, delayed or conditioned, and provided, however, that if the
non-requesting party has not responded to any such request of the requesting
party within 30 days after receipt thereof, such request shall be deemed
approved), (i) grant easements and other rights in the nature of easements, (ii)
release existing easements or other rights in the nature of easements which are
for the benefit of the Leased Property, (iii) dedicate or transfer unimproved
portions of the Leased Property for road, highway or other public purposes, (iv)
execute petitions to have the applicable Leased Property annexed to any
municipal corporation or utility district, (v) execute amendments to any
covenants and restrictions affecting the applicable Leased Property and (vi)
execute and deliver to any person any instrument appropriate to confirm or
effect such grants, releases, dedications and transfers (to the extent of its
interests in the Leased Property), but only upon delivery of all documentation
the non-requesting party reasonably shall deem necessary and, if Lessor is the
requesting party, only if such grant, release, dedication, transfer, petition or
amendment (a) is not detrimental to the proper conduct of the business of Tenant
on the Leased Property and (b) does not materially reduce the value of the
Leased Property, as reasonably determined by Tenant, and, if Tenant is the
requesting party, only if such grant, release, dedication, transfer, petition or
amendment does not materially reduce the value of the Leased Property, as
reasonably determined by Lessor.
Section 7.3.2 Notwithstanding anything to the contrary contained in
Section 7.3.1, Section 8.3, Section 24.1 or elsewhere in this Lease, in the case
of any easement or license for a cell tower, antenna, satellite dish or other
telecommunications equipment, a parking lot or a billboard or other signage (a)
that is entered into pursuant to Section 7.3.1 hereof at the written request of
Lessor and (b) from which profit is generated and all of such profit, and any
reimbursements of out of pocket costs and expenses incurred by Lessor in
connection therewith, are payable to Lessor, without any obligation of Lessor to
pay, or credit, any of the same to Tenant, (i) Tenant shall be obligated under
this Section 7.3, Section 8.3, Section 24.1 and the other provisions of this
Lease only to refrain from taking, and to prevent its assignees and sublessees,
and the agents, employees, contractors, invitees, licensees and concessionaires
of Tenant and its assignees and sublessees, from taking, any action that would
cause or result in a breach, default, violation or termination of any such
easement or license and (ii) Lessor shall protect, indemnify, save harmless and
defend Tenant from and against all out of pocket costs and expenses (including,
without limitation, Litigation Costs), to the maximum extent permitted by law,
incurred by Tenant due to any liabilities, obligations, claims, damages,
penalties or causes of action asserted against Tenant primarily by reason of any
such easement or license and not arising due to any breach by Tenant of its
obligations under subsection (i) above.
ARTICLE VIII
Section 8.1 Compliance with Legal and Insurance Requirements, Instruments,
etc. Subject to Article XII relating to permitted contests, Tenant, at its
expense, will promptly (a) comply with all material Legal Requirements and
Insurance Requirements in respect of the use, operation, maintenance, repair and
restoration of the Leased Property, whether or not compliance
16
therewith shall require structural changes in any of the Leased Improvements or
interfere with the use and enjoyment of the Leased Property, and (b) procure,
maintain and comply with all licenses, certificates of need and other
Authorizations required for any use of the Leased Property and Tenant's Personal
Property then being made, and for the proper erection, installation, operation
and maintenance of the Leased Property or any part thereof, including without
limitation any Capital Alterations. In addition, Tenant shall promptly send to
Lessor any material deficiency report Tenant receives from any federal, state or
local licensure board or certification agency or authority with respect to the
Facility if Tenant has not cured such deficiency within the applicable cure
period. Lessor and Tenant each agree to promptly deliver to the other party
copies of all notices, requests or demands that relate to the Leased Property or
the use or occupancy thereof after the receipt of same.
Section 8.1.1 Authorization Non-Compliance. In the event that Tenant
shall receive notice from any federal, state or local agency or authority that
Tenant is not in compliance with any material Legal Requirement, license,
permit, approval, certificate of need, certification for reimbursement under
Medicare or Medicaid or other Authorization, Tenant shall promptly send notice
to Lessor and Tenant shall either (a) remedy any condition causing such
noncompliance within any cure period allowed therefor by the applicable agency
or authority (or, if no such cure period shall be allowed or specified by the
applicable agency or authority, promptly and diligently following Tenant's
receipt of such notice and, in any event, prior to the final unappealable
revocation of any license, permit, approval, certificate of need, certification
for reimbursement or other Authorization) or (b) prior to the expiration of such
cure period (or if no such cure period shall be allowed or specified by the
applicable agency or authority, promptly following receipt of such notice and,
in any event, prior to the final unappealable revocation of any license, permit,
approval, certificate of need, certification for reimbursement or other
Authorization), commence appropriate proceedings to contest such notice, and,
thereafter, diligently pursue such contest until there is a final unappealable
determination, all in accordance with the provisions of Sections 8.2 and 12.1
hereof. Nothing in this Lease shall be construed as granting Tenant any right,
title, interest in or to the beds, or the licenses relating thereto, which are
located at the Leased Property or granting Tenant any right to move the beds, or
the licenses relating thereto, to another facility owned, leased, or operated by
Tenant or any of its Affiliates, it being understood and agreed that Tenant's
only right hereunder is to operate the Leased Property during the Term as the
licensed operator in accordance with the terms hereof.
Section 8.2 Legal Requirement Covenants. Subject to the provisions of
Article XII relating to permitted contests, Tenant covenants and agrees that
neither the Leased Property nor any of Tenant's Personal Property shall be used
for any unlawful purpose, and Tenant shall acquire and maintain, or cause to be
acquired and maintained, all licenses, certificates, permits, provider
agreements, approvals and other Authorizations needed to operate the applicable
Leased Property in its customary manner for the Primary Intended Use, and any
other use conducted on the Leased Property as may be permitted from time to time
hereunder. Subject to Article XII, Tenant further covenants and agrees that
Tenant's use of the Leased Property and maintenance, alteration, and operation
of the same, and all parts thereof, shall at all times conform to all applicable
local, state, and federal laws, ordinances, rules and regulations unless the
same are held by a court of competent jurisdiction to be unlawful. Tenant may,
however, upon prior written notice to Lessor, contest the legality or
applicability of any law, ordinance, rule or regulation, or any other Legal
Requirement or any licensure, certification or other Authorization
17
decision (including, without limitation, any notice of non-compliance referred
to in Section 8.1.1 hereof) or other Authorization if Tenant, at Tenant's own
expense, maintains such action in good faith, by appropriate proceedings and
with due diligence, and on a regular basis fully informs Lessor of the status
of, and material developments in, any such contest and furnishes Lessor with
such additional documents and information concerning such contest as Lessor may
reasonably request from time to time. If, by the terms of any such law,
ordinance, rule or regulation or any Legal Requirement or any such licensure,
certification or other Authorization decision or any applicable court order or
stay, compliance therewith pending the prosecution of any such proceeding may
legally be delayed (a) without the incurrence of any lien, charge or liability
of any kind against the applicable Facility or Lessor's interest therein, (b)
without any loss of licensure, certification or other Authorization that would
materially and adversely impair Tenant's ability to continue to operate the
affected Facility in accordance with its Primary Intended Use during Tenant's
contest, and (c) without subjecting Lessor to any liability, civil or criminal,
for failure so to comply therewith, Tenant may delay compliance therewith until
the final unappealable determination of such proceeding, provided, however, if
any such lien, charge or civil or criminal liability would be incurred by reason
of any such delay, Tenant may nonetheless contest as aforesaid and delay as
aforesaid provided that such delay would not subject Lessor to criminal
liability and Tenant (i) furnishes to Lessor security reasonably satisfactory to
Lessor against any loss or injury by reason of such contest or delay, (ii)
prosecutes the contest with due diligence and in good faith, and (iii) keeps
Lessor informed, and provides additional documentation and information, relative
to such contest as described above. Following the final unappealable
determination of any such proceeding adversely to Lessor or Tenant, Tenant shall
comply with all requirements of such determination in accordance with Section
12.1(g).
Section 8.3 Permitted Encumbrances.
Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its
own cost and expense, fully observe, perform and comply with all Permitted
Encumbrances as the same apply to or bind Lessor or the Leased Property. Subject
to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective
agents, employees, contractors, invitees, subtenants, licensees, concessionaires
or assigns (whether or not permitted hereunder) to cause, whether by act or
omission, any breach of, default under or termination of any Permitted
Encumbrance applicable to or binding upon Lessor or the Leased Property.
Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere
in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be
deemed to have occurred under this Lease on account of Tenant's breach of this
Section 8.3.1, when, but only if, (a) Tenant's breach of this Section 8.3.1 also
results in a breach or default of an obligation under a Permitted Encumbrance,
(b) such Permitted Encumbrance breach or default is not cured by Tenant on or
prior to the expiration of the cure period, if any, applicable to such breach or
default by the terms of the instrument creating such Permitted Encumbrance (or
such longer cure period as may be expressly authorized by an order of a court of
competent jurisdiction), and (c) on account of such Permitted Encumbrance breach
or default, a real property interest, or a covenant, condition, restriction,
license or other beneficial right, created under such Permitted Encumbrance and
benefiting Lessor or a Leased Property is terminated or otherwise lost or at
material risk of being terminated or otherwise lost. Lessor agrees that, in the
event Lessor receives any written notice of default from a party to a Permitted
Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant
agrees that, if
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Lessor, at its option, elects to cure an Event of Default by Tenant under this
Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of,
such Event of Default, nor shall Tenant's reimbursement to Lessor of any costs
and expenses incurred by Lessor in effecting any such cure be deemed a cure of
any such Event of Default, provided, however, that, notwithstanding the
foregoing, even after the occurrence of such an Event of Default by Tenant
and/or Lessor's cure thereof, Lessor agrees to accept Tenant's cure thereof, or
reimbursement of Lessor's costs and expenses to effect such cure, provided, and
on the condition, that Lessor has not, prior thereto, terminated this Lease as
it affects the Leased Property to which such Permitted Encumbrance relates or
dispossessed Tenant from the Leased Property. Nothing contained in this Section
8.3 shall limit or impair Lessor's indemnification rights under Section 24.1
below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the
nature described in Section 8.3.1(a) above occurs, and (b) on account thereof,
if the same is not cured, the condition referenced in Section 8.3.1(c) above
would, or is likely to, be satisfied, Tenant agrees that, notwithstanding
anything to the contrary contained in Section 17.1 below or elsewhere in this
Lease, Lessor may, but shall not be obligated to, in its discretion and
regardless of whether Tenant is proceeding to cure, or attempting to cure, the
Permitted Encumbrance breach or default referenced in Section 8.3.1 (a) above or
whether the cure period referenced in Section 8.3.1(b) above has expired or is
likely to expire before completion of necessary cure efforts, take such actions
as it deems necessary or appropriate to attempt to cure such Permitted
Encumbrance breach or default, provided, however, that, if the breach or default
referenced in subsection (a) above has applicable thereto, by the express terms
of the applicable Permitted Encumbrance, a stated period to cure the same,
Lessor agrees not to commence to cure such breach or default unless and until
one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so
proceeds to attempt to cure any such Permitted Encumbrance breach or default,
Tenant agrees, within fifteen (15) days following receipt of a written demand
therefor and reasonable supporting documentation, to reimburse Lessor for the
reasonable amount of all costs and expenses incurred by Lessor in curing, or
attempting to cure, any such Permitted Encumbrance breach or default.
ARTICLE IX
Section 9.1 Maintenance and Repair.
(a) Tenant, at its expense, shall keep the Leased Property and all private
roadways, sidewalks and curbs appurtenant thereto and which are under Tenant's
control (and Tenant's Personal Property) in good order and repair, reasonable
wear and tear excepted (whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, the elements or the age of the Leased
Property, Tenant's Personal Property, or any portion thereof), and, except as
otherwise provided in Article XIV, shall promptly make all necessary and
appropriate repairs and replacements thereto, of every kind and nature, whether
interior or exterior, structural or non-structural, ordinary or extraordinary,
foreseen or unforeseen or arising by reason of a condition existing prior to the
commencement of the Term (concealed or otherwise). All repairs shall, to the
extent reasonably achievable, be made in good, workmanlike and first-class
manner, in accordance with all applicable federal, state and local statutes,
ordinances, by-laws, codes, rules and regulations relating to such work. Tenant
will not take or omit to take any action the
19
taking or omission of which might materially impair the value or usefulness of
the applicable Leased Property or any part thereof for its Primary Intended Use.
(b) Lessor shall not under any circumstances be required to build or
rebuild any improvements on the Leased Property, or to make any repairs,
replacements, alterations, restorations or renewals of any nature or description
to the Leased Property, whether ordinary or extraordinary, structural or
non-structural, foreseen or unforeseen, or to make any expenditure whatsoever
with respect thereto, in connection with this Lease, or to maintain the Leased
Property in any way, except as expressly provided herein. Tenant hereby waives,
to the extent permitted by law, the right to make repairs at the expense of
Lessor pursuant to any law in effect at the time of the execution of this Lease
or thereafter enacted.
(c) Except as expressly set forth in this Lease, nothing contained in this
Lease and no action or inaction by Lessor shall be construed as (i) constituting
the consent or request of Lessor, express or implied, to any contractor,
subcontractor, laborer, materialman or vendor to or for the performance of any
labor or services or the furnishing of any materials or other property for the
construction, alteration, addition, repair or demolition of or to the Leased
Property or any part thereof, or (ii) giving Tenant any right, power or
permission to contract for or permit the performance of any labor or services or
the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Lessor in respect thereof or to make any
agreement that may create, or in any way be the basis for, any right, title,
interest, lien, claim or other encumbrance upon the estate of Lessor in the
Leased Property, or any portion thereof.
(d) Tenant will, upon the expiration or prior termination of the Term,
vacate and surrender the Leased Property to Lessor in the condition in which the
Leased Property was originally received from Lessor, except as repaired,
rebuilt, restored, altered or added to as permitted or required by the
provisions of this Lease and except for ordinary wear and tear (subject to the
obligation of Tenant to maintain the Leased Property in good order and repair
during the entire Term).
(e) Tenant shall establish and maintain any reserve accounts reasonably
required by a Facility Mortgagee for deferred maintenance conditions and for
capital expenditures at the Leased Property.
Section 9.2 Encroachments. If any of the Leased Improvements on the Leased
Property shall, at any time, encroach upon any property, street or right-of-way
adjacent to the Leased Property, then, promptly upon the request of Lessor or at
the behest of any person affected by any such encroachment, Tenant shall, at its
expense, subject to its right to contest the existence of any encroachment and,
in such case, in the event of any adverse final determination, either (i) obtain
valid and effective waivers or settlements of all claims, liabilities and
damages resulting from each such encroachment, whether the same shall affect
Lessor or Tenant, or (ii) make such changes in the Leased Improvements, and take
such other actions, as Tenant, in good faith exercise of its judgment deems
reasonably practicable, to remove such encroachment, including, if necessary,
the alteration of any of the Leased Improvements, and in any event take all such
actions as may be necessary in order to be able to continue the operation of the
Leased Improvements for the Primary Intended Use substantially in the manner and
to the extent the Leased Improvements were operated prior to the assertion of
such encroachment. Any such
20
alteration shall be made in conformity with the applicable requirements of
Article X. Tenant's obligations under this Section 9.2 shall be in addition to
and shall in no way discharge or diminish any obligation of any insurer under
any policy of title or other insurance and Tenant shall not be entitled to a
credit for any sums recovered by Lessor under any such policy of title or other
insurance.
ARTICLE X
Section 10.1 Construction of Capital Alterations to the Leased Property.
Tenant shall not, without the prior written consent of Lessor, which consent,
except as expressly set forth below relative to tie in/connecting Capital
Alterations of the nature described below, shall not be unreasonably withheld,
delayed or conditioned construct or install Capital Alterations on the Leased
Property. In the event that Tenant wishes to construct or install any Capital
Alteration, Tenant shall submit to Lessor in writing a proposal setting forth in
reasonable detail such Capital Alteration and shall provide to Lessor for
approval such plans and specifications, permits, licenses, contracts,
construction schedules, construction budgets and other information concerning
the proposed Capital Alteration as Lessor may reasonably request showing in
reasonable detail the scope and nature of the Capital Alteration that Tenant
desires to construct (collectively the "Plans and Specifications"). It is the
intent of the parties hereto that the level of detail shall be comparable to
that which is referred to in the architectural profession as "design development
drawings" as opposed to working or biddable drawings. Without limiting the
generality of the foregoing, such proposal shall indicate the approximate
projected cost of constructing such Capital Alteration and the use or uses to
which it will be put. In the event that Lessor consents in writing to any
Capital Alteration, prior to commencing construction of any Capital Alteration,
Tenant shall first request Lessor to provide funds to pay for such Capital
Alteration in accordance with the provisions of Section 10.3. If Lessor declines
or is unable to provide such financing on terms acceptable to Tenant, Tenant
shall provide to Lessor, prior to commencement of any construction, proof
reasonably acceptable to Lessor that Tenant has sufficient capital to complete
the construction. Furthermore, no Capital Alteration shall be made which would
tie in or connect any Leased Improvements on a Leased Property with any other
improvements on property adjacent to the Leased Property (and not part of the
Land covered by this Lease) including, without limitation, tie-ins of buildings
or other structures or utilities, unless Tenant shall have obtained the prior
written approval of Lessor, which approval in Lessor's sole discretion may be
granted, withheld, delayed or conditioned. Tenant shall reimburse Lessor for all
reasonable costs and expenses incurred by Lessor in reviewing the proposal and
the Plans and Specifications for a Capital Alteration and for inspecting the
applicable Leased Property and otherwise monitoring the construction of the
Capital Alteration, including, without limitation, the reasonable cost of
engaging consultants to assist Lessor in connection with any or all of the
foregoing.
Section 10.2 Capital Alterations Financed by Tenant. If Tenant provides or
arranges such financing, there shall be no adjustment in Fixed Rent by reason of
any such Capital Alteration.
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Section 10.3 Capital Alteration Financed by Lessor.
(a) Tenant shall request that Lessor provide or arrange financing for a
Capital Alteration by providing to Lessor such information about the Capital
Alteration as Lessor may reasonably request including without limitation all
information referred to in Section 10.1 above. Lessor may, but shall be under no
obligation to, obtain the funds necessary to meet the request. Within sixty (60)
days after receipt of a request, Lessor shall notify Tenant as to whether it
will finance the proposed Capital Alteration and, if so, the terms and
conditions upon which it would do so, including the terms of any amendment to
this Lease. In no event shall the portion of the projected Capital Alterations
Cost comprised of land, if any, materials, labor charges and fixtures be less
than ninety percent (90%) of the total amount of such cost. Tenant may withdraw
its request by notice to Lessor at any time before or after receipt of Lessor's
terms and conditions. If Tenant desires to accept Lessor's offer to finance the
proposed Capital Alteration, Tenant shall notify Lessor within thirty (30) days
after Tenant's receipt of Lessor's offer.
(b) If Lessor agrees to finance the proposed Capital Alteration, Tenant
shall provide Lessor with the following prior to any advance of funds:
(i) all customary or other reasonably required loan documentation;
(ii) any information, certificates, licenses, permits or documents
requested by either Lessor or any third party lender with whom Lessor has
agreed or may agree to provide financing which are necessary to confirm
that Tenant will be able to use the Capital Alteration upon completion
thereof in accordance with the Primary Intended Use, including all required
federal, state or local government licenses and approvals;
(iii) an Officer's Certificate and, if requested, a certificate from
Tenant's architect, setting forth in reasonable detail the projected (or
actual, if available) cost of the proposed Capital Alteration;
(iv) an amendment to this Lease, duly executed and acknowledged, in
form and substance reasonably satisfactory to Lessor and Tenant, providing
for (1) any change in the Rent and accordingly, an amendment to Exhibit B
that is set forth in Lessor's offer to finance and accepted by Tenant and
any change in the legal description of the Land, that is appropriate on
account of any change in the Rent as aforesaid and (2) any other Lease
amendments as may be necessary or appropriate;
(v) a deed (in the customary form used to convey commercial properties
within the relevant jurisdiction) conveying title to Lessor to any land
acquired for the purpose of constructing the Capital Alterations free and
clear of any liens or encumbrances except those approved by Lessor,
accompanied by a final as-built survey thereof satisfactory to Lessor if
reasonably required by Lessor;
(vi) endorsements to any outstanding policy of title insurance, if
any, covering the applicable Leased Property or commitments therefor
satisfactory in form and substance to Lessor (A) updating the same without
any additional exception except as may be permitted by Lessor; and (B)
increasing the coverage thereof by an amount equal
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to the Fair Market Value of the Capital Alteration (except to the extent
covered by the owner's policy of title insurance referred to in subsection
(vii) below);
(vii) if appropriate, (A) an owner's policy of title insurance
insuring fee simple title to any land conveyed to Lessor pursuant to
subsection (v) free and clear of all liens and encumbrances except those
approved by Lessor and (B) a lender's policy of title insurance
satisfactory in form and substance to Lessor and the lending institution
advancing any portion of the Capital Alterations Cost;
(viii) if deemed necessary by Lessor, an M.A.I. appraisal of the
Leased Property indicating that the value of the Leased Property upon
completion of the Capital Alteration exceeds the Fair Market Value thereof
prior thereto by an amount not less than 95% of the Capital Alterations
Cost; and
(ix) such other certificates (including, but not limited to,
endorsements increasing the insurance coverage, if any, at the time
required by Section 13.1), documents, opinions of counsel, appraisals,
surveys, certified copies of duly adopted resolutions of the Board of
Directors of Tenant authorizing the execution and delivery of the lease
amendment and any other instruments as may be reasonably required by Lessor
and any lending institution advancing or reimbursing Tenant for any portion
of the Capital Alterations Cost.
(c) Upon making a request to finance a Capital Alteration, if and when such
financing is actually consummated, Tenant shall pay or agree to pay all
reasonable costs and expenses of Lessor and any Lending Institution which has
committed to finance such Capital Alteration paid or incurred by them in
connection with the financing of the Capital Alterations, including, but not
limited to, (i) the reasonable fees and expenses of their respective counsel,
(ii) all printing expenses, (iii) the amount of any filing, registration and
recording taxes and fees, (iv) documentary stamp taxes, if any, (v) title
insurance and survey charges, appraisal fees, if any, and rating agency fees, if
any, (vi) any other applicable consulting fees (including without limitation
engineering and environmental), and (vii) commitment fees, if any.
Section 10.4 Non-Capital Alterations. Tenant shall have the right to make
additions, modifications or improvements to the Leased Property which are not
Capital Alterations ("Non-Capital Alterations") from time to time as it, in its
discretion, may deem to be desirable for its uses and purposes, provided that
such action will not alter the character or purpose or detract from the value or
operating efficiency thereof and will not impair the revenue producing
capability of the affected Leased Property or adversely affect the ability of
Tenant to comply with the provisions of this Lease. The cost of such Non-Capital
Alterations, modifications or improvements to a Leased Property shall be paid by
Tenant.
Section 10.5 Salvage. All materials which are scrapped or removed in
connection with the making of either Capital Alterations permitted by Section
10.1 or Non-Capital Alterations permitted by Section 10.4 or repairs required by
Article IX shall be or become the property of Lessor or Tenant depending on
which party is paying for, or providing the financing for, such work.
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Section 10.6 Additional Requirements for Capital Alterations and
Non-Capital Alterations. Tenant shall comply with the following requirements in
connection with Permitted Alterations:
(a) In the case of Capital Alterations, the Permitted Alteration shall be
made substantially in accordance with the Plans and Specifications submitted to
Lessor, to the extent applicable.
(b) The Permitted Alterations and the installation thereof shall comply
with all applicable Legal Requirements and all Insurance Requirements.
(c) The Permitted Alterations shall be performed in a good and workmanlike
manner, shall not impair the value or the structural integrity of the Leased
Property, and shall be free and clear of mechanic's liens.
(d) Intentionally omitted.
(e) Tenant shall, at Tenant's expense, obtain a builder's completed value
risk policy of insurance insuring against the risks of physical loss, including
collapse and transit coverage, in a nonreporting form, covering the total value
of the work performed, and equipment, supplies and materials, and insuring
initial occupancy. Lessor and any Facility Mortgagee shall be additional named
insureds of such policy. Lessor shall have the right to approve the form and
substance of such policy, which approval shall not be unreasonably withheld,
delayed or conditioned.
(f) Tenant shall pay the premiums required to increase the amount of
insurance coverages required by Article XIII to reflect the increased value of
the Leased Property resulting from the Permitted Alterations, and shall deliver
to Lessor a certificate evidencing the increase in coverage.
(g) In the case of Capital Alterations, Tenant shall, not less than sixty
(60) days after completion of the Capital Alterations, deliver to Lessor a
revised "as-built" set of Plans and Specifications for the Capital Alterations
in form and substance reasonably satisfactory to Lessor.
(h) In the case of Capital Alterations, Tenant shall, not later than thirty
(30) days after Lessor sends an invoice, reimburse Lessor for any reasonable
costs and expenses, including attorneys' fees and architects' and engineers'
fees, incurred in connection with reviewing proposed Capital Alterations and
ensuring Tenant's compliance with the terms of this Article X.
(i) All Capital Alterations and Non-Capital Alterations shall, without
payment by Lessor at any time (other than as expressly agreed by Lessor pursuant
to Section 10.3 above), be included under the terms of this Lease and upon
expiration or earlier termination of this Lease shall pass to and become the
property of Lessor free and clear of all encumbrances, other than Permitted
Encumbrances.
(j) Except as expressly agreed by Lessor and Tenant pursuant to Section
10.3(b)(iv) above, (1) there shall be no adjustment in Fixed Rent by reason of
any Capital Alteration or Non-
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Capital Alteration and (2) no Capital Alteration or Non-Capital Alteration shall
be treated by Lessor or Tenant as rent, or amounts in lieu of rent, paid by
Tenant, or any other kind of gross income to Lessor, for income tax purposes.
Section 10.7 Mortgagee's Consent. Tenant shall not commence construction of
any Capital Alteration until Lessor shall have obtained the consent of any
applicable Facility Mortgagee, if such consent is required. Lessor agrees to use
commercially reasonable efforts to obtain promptly any such consent, if such
consent is necessary.
ARTICLE XI
Section 11.1 Liens. Subject to the provisions of Article XII relating to
permitted contests, Tenant will not directly or indirectly create or allow to
remain and will promptly discharge at its expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Leased Property or any
attachment, levy, claim or encumbrance in respect of the Rent, not including,
however, (a) Permitted Encumbrances, (b) restrictions, liens and other
encumbrances which are consented to in writing by Lessor, or any easements
granted pursuant to the provisions of this Lease, (c) liens for those taxes of
Lessor which Tenant is not required to pay hereunder, (d) subleases permitted by
Article XXV, (e) liens for Impositions or for sums resulting from noncompliance
with Legal Requirements so long as (1) the same are not yet payable or are
payable without the addition of any fine or penalty or (2) such liens are in the
process of being contested as permitted by Article XII, (f) liens of mechanics,
laborers, materialmen, suppliers or vendors for sums either disputed in good
faith or not yet due, provided that (1) the payment of such sums shall not be
postponed under any related contract for more than sixty (60) days after the
completion of the action giving rise to such lien and such reserve or other
appropriate provisions as shall be required by law or generally accepted
accounting principles shall have been made therefor or (2) any such liens are in
the process of being contested as permitted by Article XII, and (g) any liens
which are the responsibility of Lessor pursuant to the provisions of Article
XXXVIII. Notwithstanding the foregoing, Tenant shall bond over any lien
affecting the Leased Property if Lessor shall reasonably request, or if any
applicable Facility Mortgagee shall so require.
ARTICLE XII
Section 12.1 Permitted Contests. Tenant, on its own or on Lessor's behalf
(or in Lessor's name), but at Tenant's expense, may contest, by appropriate
legal proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any Imposition or any Legal
Requirement or any lien, attachment, levy, encumbrance, charge or claim not
otherwise permitted by Article XI, provided that (a) in the case of an unpaid
Imposition, lien, attachment, levy, encumbrance, charge, or claim, the
commencement and continuation of such proceedings shall suspend the collection
thereof from Lessor and from the Leased Property, (b) neither the Leased
Property nor any Rent therefrom nor any part thereof or interest therein would
be reasonably likely to be in danger of being sold, forfeited, attached or lost,
(c) in the case of a Legal Requirement, Lessor would not be in any immediate
danger of criminal liability for failure to comply therewith pending the outcome
of such proceedings and the contest provisions of Section 8.2 have been
satisfied, (d) Tenant shall indemnify and hold harmless Lessor from and against
any cost, claim, damage, penalty or reasonable expense,
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including reasonable attorneys' fees, incurred by Tenant in connection therewith
or as a result thereof, (e) in the case of a Legal Requirement and/or
Imposition, lien, encumbrance or charge, Tenant shall give such reasonable
security as may be demanded by Lessor to insure ultimate payment of or
compliance with the same and to prevent any sale or forfeiture of the affected
Leased Property or the Rent by reason of such non-payment or non-compliance,
provided, however, the provisions of this Article XII shall not be construed to
permit Tenant to contest the payment of Rent (except as to contests concerning
the method of computation or the basis of levy of any Imposition or the basis
for the assertion of any other claim) or any other sums payable by Tenant to
Lessor hereunder, (f) in the case of an Insurance Requirement, the coverage
required by Article XIII shall be maintained, and (g) if such contest is
resolved against Lessor or Tenant by a final unappealable determination, Tenant
shall, as Additional Charges due hereunder, pay to the appropriate payee the
amount required to be paid, together with all interest and penalties accrued
thereon, within ten (10) days after such determination (or within such shorter
period as may be required by the terms of such determination), and comply,
within any cure period allowed therefor by the applicable agency or authority
(or if no such cure period shall be allowed or specified by the applicable
agency or authority, promptly and diligently following the effective date of
such determination and, in any event, prior to the final unappealable revocation
of any license, permit, approval, certificate of need, certificate for
reimbursement or other Authorization), with the applicable Legal Requirement,
Insurance Requirement, plan of correction or other remedial requirements of the
applicable agency or authority; provided, however, that this subsection (g) is
not intended, and shall not be construed, to afford Tenant any cure or grace
period beyond the effective date of any final unappealable determination, unless
and only to the extent that (i) such determination specifically conditions the
imposition or taking effect of the adverse legal, regulatory or other
consequences in issue upon Tenant's failure to make a specified payment or to
take specified compliance, curative or remedial action following the effective
date of such determination or (ii) Tenant is proceeding diligently and in good
faith to effect an assignment or sublet hereunder and the applicable agency(ies)
or authority(ies) is not enforcing such final order, pending consummation of
such assignment or sublet. Lessor, at Tenant's expense, shall execute and
deliver to Tenant such authorizations and other documents as may reasonably be
required in any such contest, and, if reasonably requested by Tenant or if
Lessor so desires, Lessor shall join as a party therein. Tenant shall indemnify
and save Lessor harmless against any liability, cost or expense of any kind that
may be imposed upon Lessor in connection with any such contest and any loss
resulting therefrom.
ARTICLE XIII
Section 13.1 General Insurance Requirements.
A. At all times during the Term, Tenant shall maintain policies of
liability, casualty and other insurance in full force and effect with
responsible and reputable insurance companies or associations in such amounts
and against such risks and in substantially the form described in Schedule 1, as
attached hereto.
B. Tenant represents and warrants that as of the Commencement Date, it
shall have obtained the insurance described in Schedule 1.
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ARTICLE XIV
Section 14.1 Insurance Proceeds. All proceeds payable by reason of any loss
or damage to the Leased Property, or any portion thereof, and insured under any
policy of insurance required by Article XIII (excluding business interruption
insurance, covering Tenant's obligations under this Lease for the payment of
Rent, the disposition of the proceeds of which is described below) shall be paid
to Lessor or a third party designated by Lessor and held by Lessor or such third
party in trust and shall be made available for reconstruction or repair, as the
case may be, of any damage to or destruction of the Leased Property, or any
portion thereof, and shall be paid out by Lessor or such third party from time
to time for the reasonable costs of such reconstruction or repair. Any excess
proceeds of insurance remaining after the completion of the restoration or
reconstruction shall be paid to Tenant upon completion of any such repair and
restoration, except that, in the event neither Lessor nor Tenant is required or
elects to repair and restore as aforesaid, all such insurance proceeds shall be
retained by Lessor free and clear. All salvage resulting from any risk covered
by insurance shall belong to Lessor except that any salvage relating to Tenant's
Personal Property shall belong to Tenant. All proceeds of the aforesaid business
interruption insurance shall be paid to Lessor or a third party designated by
Lessor and held by Lessor or such third party in trust. Business interruption
insurance proceeds shall be applied first towards payment of any Rent that is
due to Lessor as of the date such proceeds are received by Lessor or such third
party, and the balance of such proceeds shall be immediately paid to Tenant,
except if and to the extent that the same have been paid by the insurer as a
prepayment on account of Rent to become due under this Lease in which event
Lessor or such third party shall hold any such funds in trust and apply such
funds to such Rent as the same becomes due.
Section 14.2 Reconstruction in the Event of Damage or Destruction Covered
by Insurance.
Section 14.2.1 If, during the Term, the Leased Property is totally or
partially destroyed from a risk covered by the insurance described in Article
XIII and the Facility located thereon is rendered Unsuitable for Its Primary
Intended Use, Tenant shall either (A) restore the Facility to substantially the
same condition as existed immediately before the damage or destruction, or (B)
provided and on the conditions that, at the time of such damage or destruction,
Tenant had in full force and effect the insurance required under Section 13.1
above, there exists no defense to, or limitation upon, the insurer's coverage of
such damage or destruction under such insurance, and Tenant pays to Lessor, on
or prior to the hereinafter described termination, the amount of any deductible
or other uninsured portion of the loss resulting from any such damage or
destruction, terminate this Lease, in which event Lessor shall be entitled to
retain the insurance proceeds.
Section 14.2.2 If, during the Term, the Leased Property is totally or
partially destroyed from a risk covered by the insurance described in Article
XIII, but the Facility located thereon is not thereby rendered Unsuitable for
its Primary Intended Use, Tenant shall restore the Facility to substantially the
same condition as existed immediately before the damage or destruction. Such
damage or destruction shall not terminate this Lease.
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Section 14.2.3 If the cost of the repair or restoration of the Leased
Property exceeds the amount of proceeds received by Lessor from the insurance
required under Article XIII, Tenant shall be obligated to contribute any excess
amounts needed to restore the Leased Property. Prior to commencement of
construction, Tenant shall either (a) provide Lessor with an irrevocable,
unconditional, freely transferable letter of credit issued by a Lending
Institution, in the full amount of such difference and in form and substance
acceptable to Lessor (and Lessor shall be entitled to draw thereon if Tenant
fails to proceed diligently with such construction or to pay its contractors for
such construction in a timely manner or to renew or extend such letter of credit
at any time the same is scheduled to expire within forty-five (45) days, and the
funds from any such draw shall be held in trust and be disbursed by Lessor as
provided in subsection (b) below and elsewhere in this Article XIV), or (b) pay
such difference to Lessor, to be held in trust by Lessor, together with any
other insurance proceeds, for application to the cost of repair and restoration.
Section 14.3 Reconstruction in the Event of Damage or Destruction Not
Covered by Insurance. If during the Term the Leased Property and the Facility
located thereon is totally or partially destroyed from a risk not covered by the
insurance described in Article XIII, whether or not such damage or destruction
renders the Facility Unsuitable for Its Primary Intended Use, Tenant shall
restore the Facility to substantially the same condition it was in immediately
before such damage or destruction and such damage or destruction shall not
terminate this Lease as to the Leased Property.
Section 14.4 Tenant's Property. All insurance proceeds payable by reason of
any loss of or damage to any of the Tenant's Personal Property or Permitted
Alterations financed by Tenant shall be paid to Tenant and Tenant shall hold
such insurance proceeds in trust to pay the cost of repairing or replacing
damaged Tenant's Personal Property or Permitted Alterations financed by Tenant.
Section 14.5 Restoration of Tenant's Property. If Tenant is required or
elects to restore the Leased Property as provided in Section 14.2 or 14.3,
Tenant shall also restore all alterations and improvements made by Tenant,
Tenant's Personal Property and all Capital Alterations financed by Tenant.
Section 14.6 No Abatement of Rent. This Lease shall remain in full force
and effect and Tenant's obligation to make payments of Rent and to pay all other
charges required under this Lease shall remain unabated during the Term
notwithstanding any damage involving the Leased Property (provided that Lessor
shall credit against such payments any amounts paid to Lessor as a consequence
of such damage under any business interruption insurance obtained by Tenant);
unless this Lease is terminated pursuant to Section 14.2.1(B). The provisions of
this Article XIV shall be considered an express agreement governing any cause of
damage or destruction to the Leased Property and, to the maximum extent
permitted by law, no local or state statute, law, rule, regulation or ordinance
in effect during the Term which provides for such a contingency shall have any
application in such case.
Section 14.7 Restoration. If Tenant is required or elects to restore the
Leased Property as provided in Section 14.2 or 14.3, Tenant shall promptly
repair, rebuild, or restore the Leased Property, so as to make the Leased
Property at least equal in value to the Leased Property as it
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existed immediately prior to such occurrence and as nearly similar to it in
character as is practicable and reasonable. Prior to commencing such repairs or
rebuilding, Tenant shall submit to Lessor for Lessor's approval, which approval
shall not be unreasonably withheld, delayed or conditioned, Plans and
Specifications pursuant to Section 10.1. Promptly after receiving Lessor's
approval of the Plans and Specifications, Tenant shall commence repairs and
rebuilding and will prosecute the repairs and rebuilding to completion with
diligence, subject, however, to strikes, lockouts, acts of God, embargoes,
governmental restrictions, and other causes beyond Tenant's reasonable control.
Subject to the provisions of the Facility Mortgage, Lessor shall make available
to Tenant the insurance proceeds (net of all administrative and collection
costs, including reasonable attorneys' fees) paid to Lessor for such repair and
rebuilding as it progresses. Payments shall be made against certification of the
architect approved by Lessor (which approval shall not be unreasonably withheld.
delayed or conditioned) responsible for the supervision of the repairs and
rebuilding that the work had been performed substantially in conformance with
the Plans and Specifications and the value of the work in place is equal to not
less than 110% of the aggregate amount advanced by Lessor for the payment of
such work. Prior to commencing the repairing and rebuilding, Tenant shall
deliver to Lessor for Lessor's approval a schedule setting forth the estimated
monthly draws for such work. Subject to the provisions of any applicable
Facility Mortgage, Lessor shall contribute to such payments out of the insurance
proceeds being held in trust by Lessor an amount equal to the proportion that
the total net amount so held by Lessor bears to the total estimated cost of
repairing and rebuilding, multiplied by the payment by Tenant on account of such
work. Lessor may, however, withhold ten percent (10%) from each payment until
the work has been completed and proof has been furnished to Lessor that no lien
or liability has attached or will attach to the Leased Property or to Lessor in
connection with repairing and rebuilding.
Section 14.8 Notice. If during the Term the Leased Property and/or the
Facility located thereon is totally or partially damaged or destroyed, and the
restoration and repair of such damage or destruction is in Tenant's reasonable
estimation likely to cost in excess of $50,000.00 in the aggregate, then Tenant
shall provide Lessor with written notice of such damage or destruction within
fifteen (15) days after Tenant's discovery thereof. The notice requirement of
this Section 14.8 shall apply regardless of whether such damage or destruction
is from a risk covered by the insurance described in Article XIII or Schedule 1,
and regardless of whether such damage or destruction renders the Facility
Unsuitable for Its Primary Intended Use.
Section 14.9 Waiver. Tenant hereby waives any statutory rights of
termination which may arise by reason of any damage or destruction of the Leased
Property which Tenant is obligated to restore or may restore under any of the
provisions of this Lease.
ARTICLE XV
Section 15.1 Definitions.
Section 15.1.1 "Condemnation" means, as to the Leased Property, (a)
the exercise of any governmental power, whether by legal proceedings or
otherwise, by a Condemnor, (b) a voluntary sale or transfer by Lessor to any
Condemnor, either under threat of condemnation or while legal proceedings for
condemnation are pending and (c) a taking or voluntary conveyance of all or part
of the Leased Property, or any interest therein, or right accruing thereto or
use
29
thereof, as the result or in settlement of any condemnation or other eminent
domain proceeding affecting the Leased Property.
Section 15.1.2 "Date of Taking" means, as to the Leased Property, the
date the Condemnor has the right to possession of the Leased Property, or any
portion thereof, in connection with a Condemnation.
Section 15.1.3 "Award" means all compensation, sums or anything of
value awarded, paid or received on a total or partial condemnation.
Section 15.1.4 "Condemnor" means any public or quasi-public authority,
or private corporation or individual, having the power of condemnation.
Section 15.2 Parties' Rights and Obligations. If during the Term there is
any taking of all or any part of the Leased Property by Condemnation, the rights
and obligations of the parties shall be determined by this Article XV.
Section 15.3 Total Taking. If the Leased Property is totally taken by
condemnation, this Lease shall terminate as to the Leased Property on the Date
of Taking.
Section 15.4 Partial Taking. If a portion of the Leased Property is taken
by Condemnation, this Lease shall remain in effect as to the Leased Property if
the Facility located thereon is not thereby rendered Unsuitable for Its Primary
Intended Use, but if the Facility is thereby rendered Unsuitable for its Primary
Intended Use, this Lease shall terminate on the Date of Taking.
If as a result of any such partial taking by Condemnation, this Lease is
not terminated as provided above, Tenant's obligation to make payments of Rent
and to pay all other charges required under this Lease shall remain unabated
during the Term notwithstanding such Condemnation (provided that Lessor shall
credit against such payments any amount of any Award attributable to Tenant's
business interruption).
Section 15.5 Restoration. If there is a partial taking of the Leased
Property and this Lease remains in full force and effect pursuant to Section
15.4, Tenant at its cost shall accomplish all necessary restoration.
Section 15.6 Award-Distribution.
(a) In the event of any partial taking of the Leased Property, the entire
Award shall belong to and be paid to Lessor, except that, subject to the rights
of the Facility Mortgagees, Tenant shall be entitled to receive from the Award,
if and to the extent such Award specifically includes such item, the following:
(i) A sum attributable to the Capital Alterations paid for by Tenant;
and
(ii) A sum specifically attributable to Tenant's Personal Property and
any reasonable removal and relocation costs included in the Award; and
30
(iii) A sum specifically attributable to the cost of restoring the
Leased Property in accordance with Section 15.5 hereof.
(b) In the event of a total taking of the Leased Property, the Award shall
be divided between Lessor and Tenant in such proportions relative to the
appraised values of their relative estates determined in accordance with Section
35.1, taking into account the value of improvements owned by Lessor and
Permitted Alterations paid for by Tenant. Tenant shall also receive a sum
specifically attributable to Tenant's Personal Property and any reasonable
removal and relocation costs included in the Award.
Section 15.7 Temporary Taking. The taking of the Leased Property, or any
part thereof, by military or other public authority shall constitute a taking by
condemnation only when the use and occupancy by the taking authority has
continued for longer than six (6) months. During any such six (6) month period
all the provisions of this Lease shall remain in full force and effect and Fixed
Rent shall not be abated or reduced during such period of taking.
ARTICLE XVI
Section 16.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" under this Lease:
(a) INTENTIONALLY OMITTED
(b) if Tenant shall fail to make payment of the Rent or any other sum
payable under or pursuant to the terms of this Lease when the same becomes due
and payable and such failure is not cured within a period of five (5) days after
receipt of notice from Lessor, or
(c) if Tenant shall fail to observe or perform any term, covenant or
condition of this Lease not specifically provided for in this Lease and such
failure is not cured within a period of ten (10) days after receipt of notice
from Lessor, unless such failure cannot with due diligence be cured within such
period, in which case such period of time shall be extended to such period of
time, not to exceed 90 days, as may be necessary to cure such default with all
due diligence, or
(d) if Tenant shall fail to observe or perform any term, covenant or
agreement on its part to be performed or observed pursuant to Section 8.1.1,
Section 11.1, the last sentence of Section 8.2, Section 12.1(g) or Section 13.1,
or
(e) Intentionally omitted.
(f) there shall occur a final unappealable determination by applicable
federal, state or local authorities of Tenant's non-compliance with Legal
Requirements applicable to the Facility located on the Leased Property, or of
the revocation of any license, permit, approval or other Authorization
(including, without limitation, any certificate of need) required for the lawful
operation of the Facility located on the Leased Property in accordance with its
Primary Intended Use, or any other circumstances under which Tenant is required
by a final unappealable determination of any such authority to cease operations
of the Facility in accordance with its Primary Intended Use as currently
operated (provided, however, that, without limitation of Section 12.1(g) hereof,
before any such determination becomes final and unappealable, Tenant
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shall have the right to contest the same in accordance with Sections 8.1.1, 8.2
and 12.1(a)-(f) hereof) provided, further that in no event shall the
non-compliance or revocation remain uncured for 30 days, or
(g) any material representation or warranty made by or on behalf of Tenant
under or in connection with this Lease or any document, certificate or agreement
delivered in connection with this Lease shall prove to have been false or
misleading in any material respect on the day when made or deemed made, or
(h) if Tenant shall:
(i) admit in writing its inability to pay its debts generally as they
become due,
(ii) file a petition in bankruptcy or a petition to take advantage of
any insolvency act,
(iii) make an assignment for the benefit of its creditors,
(iv) consent to the appointment of a receiver of itself or of the
whole or any substantial part of its property, or
(v) file a petition or answer seeking reorganization or arrangement
under the Federal bankruptcy laws or any other applicable law or statute of
the United States of America or any State thereof, or
(i) any petition shall be filed by or against Tenant or any subsidiary of
Tenant under Federal bankruptcy laws, or any other proceeding shall be
instituted by or against Tenant or such subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for Tenant or such subsidiary, or for any
substantial part of the property of Tenant or such subsidiary, and such
proceeding is not dismissed within ninety (90) days after institution thereof,
or Tenant or such subsidiary shall take any action to authorize or effect any of
the actions set forth above in this subsection (i) (this subsection (i) shall
not apply to the appointment of a receiver, trustee, custodian or other similar
official in any proceeding(s) other than bankruptcy, reorganization, insolvency
and other creditors' rights proceedings of the nature referenced in this
subsection (i)), or
(j) if Tenant shall be liquidated or dissolved, or shall begin proceedings
toward such liquidation or dissolution, or
(k) if the estate or interest of Tenant in the Leased Property or any part
thereof shall be levied upon or attached in any proceeding and the same shall
not be vacated or discharged within sixty (60) days, or
(1) if any receiver, trustee, custodian or other similar official is
appointed for Tenant, or the Facility and any such appointment is not dismissed
prior to the entry of a final,
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unappealable order approving such appointment (provided, however, that this
subsection (1) shall not apply to any such official appointed in bankruptcy,
reorganization, insolvency or other creditors' rights proceedings of the nature
referenced in subsection (i) above), and, in the case of the appointment of any
such official as to whom this subsection (1) does apply, prior to the entry of a
final unappealable order approving the appointment of such official and denying
any requested dismissal thereof, without limitation of Section 12.1(g) hereof,
no Event of Default shall be deemed to have occurred under this subsection (1)
so long as Tenant is contesting such appointment in accordance with Sections 8.2
and 12.1(a)-(f) hereof) provided further that in no event shall the matter
remain uncured for 30 days, or
(m) if the number of licensed beds for the Leased Property is reduced;
(n) if Tenant shall become subject to regulatory sanctions and Tenant has
failed to cure or satisfy such regulatory sanctions (including, without
limitation, through payment of any such sanctions, if the same are monetary in
nature) within its specified regulatory cure period in any material respect with
respect to any Facility (provided, however, that, without limitation of Section
12.1(g) hereof, prior to the imposition of such sanctions on Tenant by final
unappealable order of any governmental agency or authority, no Event of Default
shall be deemed to have occurred under this subsection (n) so long as Tenant is
contesting the imposition of such sanctions in accordance with Sections 8.2 and
12.1(a)-(f) hereof) provided further that in no event shall the matter remain
uncured for 30 days, or
(o) if, except pursuant to the terms hereof, Tenant voluntarily ceases
operations on the Leased Property, or
(p) if Tenant shall fail to observe or perform any term, covenant or other
obligation of Tenant set forth in Article XXVI hereof and such failure is not
cured within a period of five (5) days after receipt of notice thereof from
Lessor, or
(q) there shall occur a revocation of certification for reimbursement under
Medicare or Medicaid with respect to the Leased Property, and within sixty (60)
days following such revocation, Tenant fails to have its aforesaid certification
fully restored, or
(r) an Event of Default shall occur as described in Section 8.3.1 above, or
(s) The voluntary removal from service by Tenant or other loss by Tenant of
any licensed beds for the Leased Property (whether due to so-called "bed
banking", regulatory noncompliance or otherwise), or
(t) An event of default arising from the failure to pay principal or
interest with respect to the Working Capital Facility, or any indebtedness of
Tenant or any Affiliate (including, without limitation, Parent) with an
aggregate outstanding principal amount equal to or exceeding $10 million shall
have occurred, unless such default is cured by Tenant within its prescribed cure
periods or waived by the party extending such indebtedness.
(u) The acceleration of the maturity of any indebtedness of Tenant or any
Affiliate with an aggregate outstanding principal amount equal to or exceeding
$10 million shall have occurred.
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(v) Notwithstanding any other provisions of this Lease, the failure of
Tenant to comply with any of the provisions of the Lease or any other act or
omission by Tenant (whether occurring at the Leased Property or elsewhere)
which, in the reasonable good faith judgment of Lessor, places in imminent
jeopardy the continued licensing of the Leased Property as then currently
licensed, or its certification as either a Medicare or Medicaid provider, and
the failure of Tenant, within twenty-four (24) hours after written notice
thereof from Lessor to Tenant to either (x) cure such failure, (y) obtain an
injunction or other order preventing revocation or suspension of licensing
and/or decertification of the Leased Property as either a Medicare or Medicaid
provider by virtue of such failure or alleged failure or (z) provide Lessor with
assurances satisfactory to Lessor that the Leased Premises will not be subject
to license suspension or revocation, and/or decertification as a result of such
failure or alleged failure, or
(w) An "Event of Default" under any of the Combined Leases, or
Upon the occurrence of an Event of Default, Lessor may at its option,
terminate this Lease by giving not less than ten (10) days notice of such
termination and upon the expiration of such 10-day period or other time period
fixed in such notice, if any, during which 10-day or other time period, Tenant
shall have no right to cure the Event of Default in question, the Term shall
terminate and, subject to the provisions of Section 40.3 governing transition of
operations, all rights of Tenant under the Lease shall cease as to the Leased
Property. Lessor shall have all rights at law and in equity available to Lessor
as a result of Tenant's breach of this Lease.
Tenant shall pay, to the maximum extent permitted by law, as Additional
Charges all Litigation Costs as a result of any Event of Default hereunder.
Section 16.2 Certain Remedies. Without limiting the foregoing, if an Event
of Default shall have occurred, whether or not this Lease has been terminated by
Lessor, Tenant shall, to the maximum extent permitted by law, if and to the
extent required by Lessor to do so, immediately surrender the Leased Premises to
Lessor or to a qualified nursing facility operator of Lessor's choice and quit
the same (in accordance with Section 40.3 hereof), and Lessor may enter upon and
repossess the Leased Premises by reasonable force, summary proceedings,
ejectment or otherwise, and may remove Tenant and all other persons and any and
all personal property from the Leased Premises subject to the rights of any
occupants or patients and to any requirement of law. Unless expressly set forth
by Lessor in writing, no such demand, nor change of possession pursuant thereto,
shall be deemed a termination of this Lease or a release of Tenant from any of
its obligations under the Lease. Unless and until the Lease is terminated by
Lessor, Tenant shall remain liable under the terms of this Lease.
Section 16.3 Damages. To the extent permitted by law, neither (a) the
termination of this Lease pursuant to Section 16.1, (b) the repossession of the
Leased Property or any portion thereof, (c) the failure of Lessor to relet the
Leased Property or any portion thereof, (d) the reletting of the Leased Property
or any portion thereof, nor (e) the failure of Lessor to collect or receive any
rentals due upon any such reletting, shall relieve Tenant of any of its
liability and obligations hereunder, all of which shall survive any such
termination, repossession or reletting. In the event of any such termination,
Tenant shall forthwith pay to Lessor, at Lessor's option, as liquidated damages
with respect to Rent for the Leased Property:
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(A) the sum of:
(i) the unpaid Rent which had been earned at the time of termination,
which Rent and other sums shall bear interest at the lesser of the Overdue
Rate and the maximum annual rate permitted by law from the date when due
until paid; and
(ii) whether or not Lessor previously collected any amounts pursuant
to clause (B) below, the then net present value (computed using a discount
rate equal to the Prime Rate) of the amount of unpaid Rent for the balance
of the Term following the date of termination (excluding, however, any
period following termination on account of which Lessor previously
collected Rent pursuant to clause (B) below) without any obligation or
deemed obligation on the part of Lessor to mitigate damages, or
(B) each installment of Rent and other sums payable with respect to the
Leased Property by Tenant to Lessor under this Lease as the same becomes due and
payable, which Rent and other sums shall bear interest at the lesser of the
Overdue Rate and the maximum annual rate permitted by law from the date when due
until paid, to the extent that such Rent and other sums exceed the rent and
other sums actually collected by Lessor for the corresponding period pursuant to
any reletting of the Leased Property (without any obligation or deemed
obligation on the part of Lessor to mitigate damages).
In case of any Event of Default, re-entry, expiration and dispossession by
summary proceedings or otherwise, Lessor may, with or without terminating this
Lease, (a) relet the Leased Property or any part or parts thereof, either in the
name of Lessor or otherwise, for a term or terms which may, at Lessor's option,
be equal to, less than or exceed the period which would otherwise have
constituted the balance of the Term and may grant concessions or free rent to
the extent that Lessor considers advisable and necessary to relet the same, and
(b) make such reasonable alterations, repairs and decorations in the Leased
Property or any portion thereof as Lessor, in its sole judgment, considers
advisable and necessary for the purpose of reletting the Leased Property; and
such reletting and the making of such alterations, repairs and decorations shall
not operate or be construed to release Tenant from liability hereunder as
aforesaid (subject to Section 16.3(B) above if and to the extent the same is
applicable). Lessor shall in no event be liable in any way whatsoever for
failure to relet the Leased Property, or, in the event that the Leased Property
is relet, for failure to collect the rent under such reletting. To the fullest
extent permitted by law, Tenant hereby expressly waives any and all rights of
redemption granted under any present or future laws in the event of Tenant's
being evicted or dispossessed, or in the event of Lessor's obtaining possession
of the Leased Property, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
Section 16.4 INTENTIONALLY OMITTED.
Section 16.5 Waiver. If this Lease is terminated pursuant to Section 16.1,
Tenant waives, to the maximum extent permitted by applicable law, (a) any right
of redemption, re-entry or repossession, (b) any right to a trial by jury in the
event of summary proceedings to enforce the remedies set forth in this Article
XVI, and (c) the benefit of any moratorium laws or any laws now or hereafter in
force exempting property from liability for rent or for debt.
35
Section 16.6 Application of Funds. Any payments received by Lessor under
any of the provisions of this Lease during the existence or continuance of any
Event of Default (and such payment is made to Lessor rather than Tenant due to
the existence of an Event of Default) shall be applied to Tenant's obligations
in the order which Lessor may determine or as may be prescribed by the laws of
the State where the Leased Property is located.
Section 16.7 Notice to Lessor. If Tenant or any subtenant receives a notice
of any material regulatory deficiency from any regulatory agency, Tenant shall
deliver a copy of such notice to Lessor in accordance with Section 34.1.
Section 16.8 Nature of Remedies. To the maximum extent permitted by law,
the rights and remedies of Lessor and Tenant under this Lease, at law and in
equity shall be cumulative and may be exercised concurrently or successively, on
one or more occasions, as Lessor or Tenant, as applicable, deems appropriate in
its sole discretion, as often as occasion therefor arises. To the maximum extent
permitted by law, each such right and remedy shall be in addition to all other
such rights and remedies, and the exercise by Lessor or Tenant, as applicable,
of any one or more of such rights and remedies shall not preclude the
simultaneous or subsequent exercise of any or all other such rights and
remedies. Without limiting the generality of the foregoing, liquidated damages
in respect of Rent provided for in clauses (A) and (B) of Section 16.3 hereof,
shall be payable by Tenant in addition to, and not in lieu of, any other damages
suffered by Lessor in connection with any default or Event of Default by Tenant
(including, without limitation, Litigation Costs and costs of reletting).
Section 16.9 INTENTIONALLY OMITTED.
Section 16.10 INTENTIONALLY OMITTED
Section 16.11 No Mediation or Arbitration. Notwithstanding anything to the
contrary set forth herein (a) upon any Event of Default by Tenant, Lessor shall
be entitled to proceed immediately to enforce its rights and remedies pursuant
to this Article XVI and the other terms of this Lease, and (b) neither any Event
of Default, nor the rights and obligations of Tenant and Lessor under this
Lease, shall be subject to mediation or arbitration of any kind.
ARTICLE XVII
Section 17.1 Lessor's Right to Cure Tenant's Default. If an Event of
Default shall have occurred and be continuing, Lessor, without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Tenant, and may, to the extent permitted by
law, enter upon the Leased Property or any portion thereof for the purpose of
curing such Event of Default and take all such action thereon as, in Lessor's
opinion, may be necessary or appropriate in connection with curing such Event of
Default. No such entry shall be deemed an eviction of Tenant. All reasonable
sums so paid by Lessor and all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses, in each case, to the
maximum extent permitted by law) so incurred, together with interest thereon (to
the maximum extent permitted by law) as Additional Charges hereunder at the
Overdue Rate from the date on which such sums or expenses are paid or incurred
by Lessor, shall be paid by Tenant to Lessor
36
on demand. The obligations of Tenant and rights of Lessor contained in this
Article shall survive the expiration or earlier termination of this Lease.
Nothing contained in this Section 17.1 shall limit or impair Lessor's rights and
remedies under Section 8.3.2.
ARTICLE XVIII
Intentionally omitted.
ARTICLE XIX
Section 19.1 Representations, Warranties and Covenants.
A. Lessor represents and warrants to Tenant as follows as of the date
of execution and delivery of this Lease:
(i) Subject to obtaining the consent of Fee Mortgagee, to the
extent required, Lessor has full right, power and authority to enter into
this Lease; and
(ii) This Lease constitutes and each of the other instruments and
documents to be executed and delivered by Lessor hereunder or which
pursuant hereto have been or will be duly executed and delivered by Lessor
constitute (or will constitute as to those instruments and documents to be
executed or delivered) the legal, valid and binding obligation of Lessor,
enforceable against Lessor in accordance with its terms, subject, as to
enforcement, to the availability of equitable remedies and limitations
imposed by bankruptcy, insolvency, reorganization and other similar laws
and related court decisions relating to or affecting creditors' rights
generally;
(iii) There are no legal actions, lawsuits, administrative
proceedings, or governmental proceedings pending or threatened against
Lessor that would prohibit Lessor from entering into this Lease or
negatively impact its ability to comply with the obligations,
responsibilities, and terms of this Lease;
(iv) Lessor has received no notice of any condemnation proceeding
or other proceeding in the nature of eminent domain, and has no information
leading Lessor to believe such a proceeding is planned, in connection with
the Leased Property or any portion or portions thereof,
(v) Lessor has received no notice of any violations of any
federal, state, county or municipal law, ordinance, order, rule,
regulation, agreement or requirement affecting any portion of the Leased
Property including, but not limited to, violations of any housing,
building, zoning, fire, safety, environmental, traffic, flood control or
health laws, other than those arising in the ordinary course of business;
(vi) Lessor has not consulted or negotiated with any broker,
finder or agent with regard to the leasing of the Leased Property;
(vii) Lessor is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware.
37
B. Tenant represents and warrants to Lessor as of the date of
execution and delivery of this Sublease that:
(i) Tenant has full right, power and authority to enter into this
Lease; and neither the execution by Tenant of this Lease nor the
performance by Tenant of the terms hereof will conflict with or violate any
agreement or instrument or any writ, order or decree to which Tenant is a
party or by which Tenant is bound;
(ii) Tenant is a duly formed limited liability company in good
standing in Florida and is authorized to conduct business in Florida;
(iii) The ownership structure of Tenant is set forth on the
structure chart attached hereto as Exhibit D;
(iv) This Lease constitutes and each of the other instruments and
documents to be executed and delivered by Tenant hereunder or which
pursuant hereto have been or will be duly executed and delivered by Tenant
constitute (or will constitute as to those instruments and documents to be
executed and delivered) the legal, valid and binding obligation of Tenant,
enforceable against Tenant in accordance with its respective terms,
subject, as to enforcement, to the availability of equitable remedies and
limitations imposed by bankruptcy, insolvency, reorganization and other
similar laws and related court decisions relating to or affecting
creditors' rights generally;
(v) Tenant has entered into the Management Agreement with
Manager, in the form attached hereto as Exhibit E;
(vi) There are no legal actions, lawsuits, administrative
proceedings, governmental proceedings pending or, to the knowledge of the
Tenant, threatened against Tenant that would prohibit Tenant from entering
into this Lease or negatively impact its ability to comply with the
obligations, responsibilities and terms of this Lease;
(vii) Tenant has obtained, or will have obtained as of the
Commencement Date, all Authorizations necessary to operate the Leased
Property for the Primary Intended Use; and
(viii) Tenant represents and warrants that it has not consulted
or negotiated with any broker, finder or agent with regard to the leasing
of the Leased Property.
C. Tenant shall neither engage any manager other than Manager at the
Leased Property nor amend the Management Agreement, without the prior written
consent of Lessor, which shall not be unreasonably withheld, delayed, or
conditioned, provided, that Lessor may withhold consent in its sole discretion
to any amendments to the Management Agreement, which, in Lessor's reasonable
opinion, materially change the economic terms thereof. Tenant shall not
terminate or assign the Management Agreement or subcontract the services to be
provided thereunder, without the prior written consent of Lessor, to be given or
withheld in its sole discretion.
38
ARTICLE XX
Section 20.1 Holding Over. If Tenant shall for any reason remain in
possession of the Leased Property after the expiration of the Term or earlier
termination of the Term, such possession shall, at the option of Lessor in its
sole discretion as to the Leased Property, be as a month-to-month tenant during
which time Tenant shall pay as rental each month (which rental constitutes
liquidated damages with respect to Rent, and not a penalty for the period to
which it relates), one and one-half times the aggregate of (i) Fixed Rent
payable as of the end of the preceding Term; (ii) all Additional Charges
accruing during the month and (iii) all other sums, if any, payable by Tenant
pursuant to the provisions of this Lease with respect to the Leased Property.
During such period of month-to-month tenancy, Tenant shall be obligated to
perform and observe all of the terms, covenants and conditions of this Lease
with respect to the Leased Property, but shall have no rights hereunder other
than the right, to the extent given by law to month-to-month tenancies to
continue its occupancy and use of the applicable Leased Property. Subject to
Section 40.3, nothing contained herein shall constitute the consent, express or
implied, of Lessor to the holding over of Tenant after the expiration or earlier
termination of this Lease.
ARTICLE XXI
Section 21.1 Subordination. This Lease and all rights of Tenant hereunder
are subject and subordinate to all Facility Mortgages and to all renewals,
modifications, consolidations, replacements and extensions of the Facility
Mortgages. This Section shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
agrees to execute and deliver promptly any commercially reasonable form of
instrument (in recordable form, if requested) that Lessor, or any Facility
Mortgagee may request to evidence such subordination.
Section 21.2 Attornment. If the interests of Lessor under this Lease are
transferred by reason of, or assigned in lieu of, foreclosure or other
proceedings for enforcement of any such Facility Mortgage, then Tenant shall, at
the option of such purchaser or assignee, as the case may be, attorn to such
party and perform for its benefit all the terms, covenants and conditions of
this Lease on Tenant's part to be performed with the same force and effect as if
such party were the landlord originally named in this Lease, or (y) enter into a
new lease with such party, as landlord, for the remaining Term and otherwise on
the same terms and conditions of this Lease except that such successor landlord
shall not be (i) liable for any previous act, omission or negligence of Lessor
under this Lease; (ii) subject to any counterclaim, defense or offset which
theretofore shall have accrued to Tenant against Lessor; (iii) bound by any
previous modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification, amendment or prepayment
shall have been approved in writing by the Facility Mortgagee through or by
reason of which such successor landlord shall have succeeded to the rights of
Lessor under this Lease or, in case of any such prepayment, such prepayment of
rent has actually been delivered to such successor landlord; or (iv) liable for
any security deposited pursuant to this Lease unless such security has actually
been delivered to such successor landlord. Nothing contained in this Section
shall be construed to impair any right otherwise exercisable by any such owner,
holder or lessee.
39
Section 21.3 Mortgagee Cure Rights. If any act or omission by Lessor would
give Tenant the right, immediately or after lapse of time, to cancel or
terminate this Lease or to claim a partial or total eviction, or abatement of
rent, setoff or counterclaim not otherwise expressly permitted by the terms of
this Lease, Tenant will not exercise any such right until (i) it has given
written notice of such act or omission to each Facility Mortgagee whose name and
address shall have previously been furnished to Tenant, by delivering notice of
such act or omission addressed to each such party at its last address so
furnished, (ii) Lessor shall have failed to cure the same within the time limits
set forth in this Lease, and (iii) following the giving of such notice, no
Facility Mortgagee shall have remedied such act or omission (x) in the case of
an act or omission which is capable of being remedied without possession of the
Leased Property, within the cure period available to Lessor under this Lease
plus sixty (60) days and (y) in the case of any act or omission which is
incapable of being remedied without possession of the applicable Leased
Property, within sixty (60) days following the date on which possession is
obtained (either by such Facility Mortgagee or by a receiver in an action
commenced by such Facility Mortgagee), provided a Facility Mortgagee has
promptly commenced action to obtain possession and shall diligently pursue such
action to completion and provided further that such Facility Mortgagee shall,
with reasonable diligence, give Tenant notice of its intention to, and commence
and continue to, remedy such act or omission or cause the same to be remedied.
Section 21.4 Modifications. Tenant shall execute any modification of this
Lease requested by any Facility Mortgagee or prospective Facility Mortgagee to
cause the terms of this Lease to conform with customary and reasonable mortgage
financing requirements, provided that such modifications (i) do not materially
adversely increase the obligations of Tenant hereunder or materially diminish
Tenant's rights under this Lease, (ii) do not increase Rent payable hereunder,
and (iii) are requested by any such Facility Mortgagee or prospective Facility
Mortgagee only at the time of its initial loan advance or any subsequent
extension of the maturity date of its loan or material modification of the terms
of its loan. Tenant will not unreasonably withhold, delay or condition its
consent to such modification, provided subsections (i), (ii) and (iii) above are
complied with.
ARTICLE XXII
Section 22.1 Security. Tenant has deposited with Kindred a cash sum equal
to one monthly installment of Fixed Rent hereunder, as security for (i) the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease and (ii) the faithful performance and observance by the
applicable tenants and subtenants of the terms, provisions and conditions of
each of the Combined Leases (each of the Combined Leases shall be referred to in
the singular, as a "Combined Lease"). It is agreed that in the event Tenant or
the applicable tenant or subtenant defaults in respect of any of the terms,
provisions and conditions of this Lease or any of the Combined Leases,
including, but not limited to, the payment of Rent, Kindred or Lessor or the
applicable landlord or sublandlord under a Combined Lease may, after notice to
Tenant and the expiration of any applicable grace period provided for in this
Lease or the applicable Combined Lease, as applicable with respect to such
default, use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any Rent or any other sum as to which
Tenant or the tenant or subtenant under the applicable Combined Lease is in
default or for any sum which Lessor or the relevant landlord or sublandlord may
expend or may be required to expend by reason of Tenant's or the applicable
40
tenant's default in respect of any of the terms, covenants and conditions of
this Lease or any of the Combined Leases, including but not limited to, any
damages or deficiency in the reletting of the Leased Property or the facility
under the applicable Combined Lease, whether such damages or deficiency accrued
before or after summary proceedings or other re-entry by Lessor or the landlord
or sublandlord under the applicable Combined Lease. In any such event, Tenant
shall promptly on demand deposit with Lessor so much of the security as shall
have been so expended so that Lessor shall at all times have the full security
deposit required hereunder. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the security (less any portion thereof which Lessor is entitled to
retain) shall be returned to Tenant after the date fixed as the end of the Lease
and after delivery of possession of the Leased Property to Lessor in accordance
with the provisions of Section 40.3. Lessor shall hold such security and shall
not be required to account to Tenant with respect to such security and shall not
be required to pay any interest thereon. Lessor shall have the right to
commingle such security with any other funds.
Section 22.2 Estoppel Certificate. Tenant shall, without charge, at any
time and from time to time hereafter, within five (5) days after written request
of Lessor, certify by written instrument duly executed and acknowledged to any
purchaser or Facility Mortgagee or proposed purchaser, or any other person, firm
or corporation specified in such request: (a) as to whether this Lease has been
supplemented or amended, and if so, the substance and manner of such supplement
or amendment; (b) as to the validity and force and effect of this Lease; (c) as
to the existence of any Event of Default hereunder; (d) as to the existence of
any offsets, counterclaims or defenses hereto on the part of Tenant; (e) as to
the commencement and expiration dates of the Term of this Lease; and (f) as to
any other matters as may be reasonably so requested. Any such certificate may be
relied upon by Lessor and any other person, firm or corporation to whom the same
may be exhibited or delivered, and the contents of such certificate shall be
binding on Tenant.
ARTICLE XXIII
Section 23.1 Risk of Loss. During the Term of this Lease, the risk of loss
or of decrease in the enjoyment and beneficial use of the Leased Property in
consequence of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures,
attachments, levies or executions (other than by Lessor and those claiming from,
through or under Lessor) is assumed by Tenant, and, in the absence of gross
negligence, willful misconduct or breach of this Lease by Lessor, Lessor shall
in no event be answerable or accountable therefor nor shall any of the events
mentioned in this Section entitle Tenant to any abatement of Rent.
ARTICLE XXIV
Section 24.1 Indemnification. Notwithstanding the existence of any
insurance provided for in Article XIII, and without regard to the policy limits
of any such insurance, Tenant will protect, indemnify, save harmless and defend
Lessor and the Indemnified Parties from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and reasonable
expenses (including, without limitation, Litigation Costs), to the maximum
extent
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permitted by law, imposed upon or incurred by or asserted against Lessor by
reason of: (a) any accident, injury to or death of persons or loss of or damage
to property occurring on or about the Leased Property or adjoining sidewalks,
including without limitation any claims of malpractice, (b) any use, misuse,
non-use, condition, maintenance or repair by Tenant or anyone claiming under
Tenant, including agents, contractors, invitees or visitors of the Leased
Property or Tenant's Personal Property, (c) any Impositions (which are the
obligations of Tenant to pay pursuant to the applicable provisions of this
Lease), (d) any failure on the part of Tenant or anyone claiming under Tenant to
perform or comply with any of the terms of this Lease, (e) subject to Section
7.3.2 hereof, any failure by Tenant to observe, perform and comply with the
terms of Permitted Encumbrance applicable to or binding upon Lessor or the
Leased Property or any breach of, default under or termination of any such
Permitted Encumbrance caused, whether by act or omission, by Tenant or its
agents, employees, contractors, invitees, subtenants, licensees, concessionaires
or assigns (whether or not permitted hereunder), and (f) the nonperformance of
any of the terms and provisions of any and all existing and future subleases of
the Leased Property to be performed by the subtenant thereunder. Any amounts
which become payable by Tenant under this Section shall be paid within ten (10)
days after liability therefor on the part of Tenant is determined by litigation
or otherwise, and if not timely paid, shall bear interest (to the extent
permitted by law) at the Overdue Rate from the date of such determination to the
date of payment. Tenant, at its expense, shall contest, resist and defend any
such claim, action or proceeding asserted or instituted against Lessor or may
compromise or otherwise dispose of the same as Tenant sees fit. Nothing herein
shall be construed as indemnifying Lessor against its own negligent acts or
omissions or willful misconduct. If at any time Lessor shall have notice of a
claim, Lessor shall give reasonably prompt written notice of such claim to
Tenant; provided that (i) Lessor shall have no liability for a failure to give
notice of any claim of which Tenant has otherwise been notified or has knowledge
and (ii) the failure of Lessor to give such a notice to Tenant shall not limit
the rights of Lessor or the obligations of Tenant with respect to such claim
except to the extent that Tenant incurs actual expenses or suffers actual
monetary loss as a result of such failure. Tenant shall have the right to
control the defense or settlement of any claim, provided that (A) Tenant shall
first confirm in writing to Lessor that such claim is within the scope of this
indemnity and that Tenant shall pay any and all amounts required to be paid in
respect of such claim and (B) if the compromise or settlement of any such claim
shall not result in the complete release of Lessor from the claim so compromised
or settled, the compromise or settlement shall require the prior written
approval of Lessor. Lessor shall have the right to approve counsel engaged to
defend such claim and, at its election and sole cost and expense, shall have the
right, but not the obligation, to participate in the defense of any claim.
Lessor shall indemnify, save harmless and defend Tenant from and against
all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses imposed upon or incurred by or asserted against Tenant as a
result of the gross negligence or willful misconduct of Lessor under and in
connection with this Lease.
Tenant's and Lessor's respective duties, liabilities and obligations under
this Article shall survive the expiration or termination of this Lease. For
example, if (x) Xxxx Xxx is injured in a slip-and-fall accident that occurs at
the Leased Property on January 1, 2004 and of which Lessor has no notice or
knowledge, (y) this Lease terminates for any reason on March 1, 2004, and (z) on
July 1, 2004, Xxxx Xxx begins a lawsuit against Lessor on account of the
aforesaid accident,
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then, notwithstanding such termination, Tenant's indemnification and other
obligations with respect to such accident and lawsuit under subsection (a) above
and the other provisions of this Article shall survive such termination.
ARTICLE XXV
Section 25.1 Subletting and Assignment.
Section 25.1.1 Notwithstanding anything to the contrary contained in
this Lease, Tenant shall have no right, directly or indirectly, to assign this
Lease in part under any circumstances. Subject to the foregoing, except as
expressly provided herein, Tenant shall not, without the prior written consent
of Lessor, which consent shall not be unreasonably withheld, delayed or
conditioned so long as no Event of Default has occurred and is continuing
hereunder subject, in all cases, to the prior written consent of any Facility
Mortgagee which has a consent right, assign this Lease in its entirety or
mortgage, pledge, hypothecate, encumber or otherwise transfer any interest in
this Lease in whole or in part or sublease all or any part of the Leased
Property or suffer or permit this Lease or the leasehold estate created hereby
or thereby or any other rights arising under this Lease to be assigned in its
entirety or to be transferred, mortgaged, pledged, hypothecated or encumbered,
in whole or in part, whether voluntarily or involuntarily or by operation of
law, or permit the use or occupancy of the Leased Property to be offered or
advertised for assignment or subletting except as hereinafter provided. For
purposes of this Section 25.1, an assignment of this Lease shall be deemed to
include any change in control of Tenant, as if such change in control or
transaction were an assignment of this Lease. Changes in control of Tenant shall
include, without limitation, (a) a change in the composition of the board of
directors of any Tenant such that at the end of any period of twelve (12)
consecutive months the persons constituting a majority of such board of
directors are not the same as the persons constituting a majority at the start
of such period (or persons appointed by such majority), (b) the sale or other
disposition of all or substantially all of the assets of Tenant (other than a
bona fide pledge in connection with a financing approved by Lessor), and (c) a
merger or consolidation involving Tenant, which results in the stockholders of
Tenant immediately prior to such event owning less than 50% of the capital stock
of the surviving entity or any public parent of the surviving entity. For
purposes of this Section 25.1, a sublease of all or any part of the Leased
Property shall be deemed to include any concessionaire agreement, license
agreement or other agreement involving use or possession of all or any part of
the Leased Property.
Section 25.1.2 Subject, in all cases, to the consent rights, if any,
of any Facility Mortgagee, Lessor's consent, which shall not be unreasonably
withheld, delayed or conditioned, shall be required for any subletting of the
Leased Property in whole or in part or any assignment of this Lease. Any such
subletting or assignment shall, at a minimum, satisfy the following conditions:
(a) in the case of a subletting, the subtenant shall comply with the provisions
of Section 25.2 hereof, (b) the assignee or subtenant (1) shall be a
creditworthy entity, in Lessor's reasonable judgment, with sufficient financial
stability to satisfy its obligations under the Lease, (2) shall have not less
than four years experience in operating health care facilities for the purpose
of the Primary Intended Use, (3) has a favorable business and operational
reputation and character, (4) has all licenses, permits, approvals and other
Authorizations required to operate the Leased Property in question for the
Primary Intended Use, and (5) in the case of an assignment, shall assume in
writing and agree to keep and perform all of the terms of this Lease on the part
of
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Tenant to be kept and performed and shall be, and become, jointly and severally
liable with Tenant for the performance thereof, (c) an original counterpart of
each such sublease and assignment and assumption, duly executed by Tenant and
such subtenant or assignee, as the case may be, in the form and substance
satisfactory to Lessor in its sole discretion (and to the extent required,
satisfactory to any Facility Mortgagee), shall be delivered promptly to Lessor,
and (d) in case of either an assignment or subletting, Tenant shall remain
primarily liable, as principal rather than as surety, for the prompt payment of
the Rent and for the performance and observance of all of the covenants and
conditions to be performed by Tenant hereunder.
Section 25.1.3 If this Lease is assigned or if the Leased Property or
any part thereof is sublet (or occupied by any entity other than Tenant and its
employees), Lessor, after an Event of Default occurs and so long as it is
continuing, may collect the rents from such assignee, subtenant or occupant, as
the case may be, and apply the net amount collected to the Rent herein reserved,
but no such collection shall be deemed a waiver of the provisions set forth in
Section 25.1.1, the acceptance by Lessor of such assignee, subtenant or
occupant, as the case may be, as a tenant or release of Tenant from the future
performance of its covenants, agreements or obligations contained in this Lease.
Section 25.1.4 No subletting or assignment shall in any way impair the
continuing primary liability of Tenant hereunder, and no consent to any
subletting or assignment in any particular instance shall be deemed a waiver of
the prohibition set forth in this Section 25.1. No assignment, subletting or
occupancy shall affect the Primary Intended Use. Any subletting, assignment or
other transfer of Tenant's interest in this Lease in contravention of this
Section 25.1 shall be void at Lessor's option.
Section 25.1.5 If Tenant shall desire to assign this Lease or sublet
all (but not a portion) of the Leased Property other than an assignment or
sublease to an Affiliate, it shall first submit in writing to Lessor a notice
("Tenant's Notice") indicating (a) the name of the proposed assignee or
subtenant, (b) the material terms of the proposed assignment or sublease, (c)
the nature and character of the business which the proposed assignee or
subtenant will conduct at the Leased Property, (d) reasonable financial data
concerning the proposed assignee or subtenant, and (e) the effective date of the
proposed assignment or the commencement date and expiration date of the proposed
sublease. Tenant shall additionally submit to Lessor any other information
concerning the proposed assignment or sublease which Lessor may reasonably
request and, prior to the effective date of any assignment permitted hereunder
or the commencement date of any sublease permitted hereunder, Tenant shall
deliver to Lessor evidence reasonably satisfactory to Lessor that the assignee
or subtenant has all licenses, permits, approvals and other Authorizations
necessary to operate the Leased Property for the Primary Intended Use (or any
other use permitted under the terms of this Lease). If such notice is given,
Lessor may, at its option, terminate this Lease as to the Leased Property.
Lessor shall exercise its option by notice to Tenant within 30 days after
Tenant's Notice (or receipt by Lessor of all information reasonably requested by
Lessor pursuant to this Section 25.1.5), and during such 30-day period, Tenant
shall not have the right to assign this Lease or sublet such space.
Section 25.1.6 If Lessor exercises its option under Section 25.1.5 to
terminate this Lease, this Lease shall terminate on the date which is 60 days
following Tenant's Notice or on such later date as may be specified in Tenant's
Notice, all Rent shall be paid and apportioned
44
to the date of such termination. If Lessor shall exercise its options under
Section 25.1.5, Lessor may, and shall have no liability to Tenant if Lessor
shall, lease to Tenant's prospective subtenant or assignee.
Section 25.1.7 (a) Subject to subsections (b) and (c) below, Tenant
shall pay to Lessor, as Additional Charges, (i) as and when received by Tenant,
80% of any consideration (including, without limitation, capital stock, stock
options or warrants, license fees and all other forms of remuneration) received
on account of any assignment and (ii) 80% of the excess of:
(x) any rents, additional charges, or other consideration (including,
without limitation, capital stock, stock options or warrants, license
fees and all other forms of remuneration) payable to Tenant under any
sublease, after deducting therefrom brokerage commissions and legal
fees paid by Tenant in connection with such subletting, over (y) the
sum of (1) a share of the Fixed Rent, real estate taxes and
assessments, insurance premiums and charges for utility usage that, on
a monthly basis, are owing with respect, or otherwise allocable, to
the Leased Property (with such share to be equal to (A) if the
applicable sublease relates primarily to use of areas within the
Facility located on the Leased Property, the product of the total of
the aforesaid Fixed Rent, real estate taxes and assessments, insurance
premiums and utility usage charges owing with respect, or allocable,
to the Leased Property for a particular month times a fraction, the
numerator of which is the number of rentable square feet under the
applicable sublease and the denominator of which is the aggregate
number of rentable square feet in the Facility located on the Leased
Property, and (B) if the applicable sublease relates primarily to use
of areas outside the Facility located on the Leased Property, that
portion of the aforesaid real estate taxes, insurance premiums and
charges for utility usage as are, in the reasonable judgment of Tenant
(and with supporting documentation to be delivered to Lessor upon
written request), attributable to the areas outside the Facility
located on the applicable Leased Property), plus (2) the amount
(amortized, if applicable, as described below) of the actual out of
pocket costs, if any, incurred by Tenant (on behalf of itself and, to
the extent related to "Sublease Rent Payments" (as defined below), on
behalf of Lessor's 80% share thereof) from time to time during the
applicable sublease and directly attributable to (aa) extending
telephone service to the portion of the Leased Property that is
subleased per the applicable sublease or (bb) performing repairs to
the portion of the Leased Property that is subleased per the
applicable sublease (and, for purposes of this subsection (2) and the
calculation of "Sublease Rent Payments", as hereinafter defined, (X)
in the case of any costs of the nature referenced in this subsection
(2) that, in accordance with generally accepted accounting principles,
are treated as capital costs, such costs shall be amortized on a
straight line basis over the longer of the useful life of the
improvements or repairs to which such costs relate or the initial term
of the applicable sublease, and in each month the amortized amount of
such costs shall be deemed to have been incurred by Tenant, and (Y) in
the case of all other costs of the nature referenced in this
subsection (2), such costs shall be treated as incurred by Tenant as
and when expended),
(such excess of (ii)(x) over (ii)(y) is referred to herein as the "Sublease Rent
Payments").
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Lessor's share, as aforesaid, of any such Sublease Rent Payments shall be paid
by Tenant to Lessor as and when the Sublease Rent Payments are received by
Tenant; provided, however, that:
(cc) within sixty (60) days after the end of each calendar year,
Tenant shall deliver to Lessor a Senior Officer's Certificate
certifying the amount of Lessor's share of Sublease Rent Payments for
the preceding calendar year and setting forth how such amount was
calculated and containing a detailed breakdown of the revenues and
expenses used in making such calculation, and, within thirty (30) days
after Lessor's receipt of such certificate, if the aggregate amount
paid by Tenant to Lessor during such preceding calendar year on
account of Lessor's share of Sublease Rent Payments for such year
exceeds the amount of Lessor's share as shown in such certificate,
then, subject to subsection (dd) below, Lessor shall pay the overage
to Tenant, and, if the aggregate amount paid by Tenant to Lessor
during such preceding calendar year on account of Lessor's share of
Sublease Rent Payments for such year is less than the amount of
Lessor's share as shown in such certificate, Tenant shall pay such
deficiency to Lessor. Lessor shall be entitled, upon three (3)
Business Days prior written notice and within normal business hours,
to review, and make abstracts from and copies of, Tenant's books,
accounts and records relative to Tenant's subleases of the Leased
Property and the calculation of Lessor's share of Sublease Rent
Payments for any period; and
(dd) for purposes of subsection (cc) above and the other provisions of
this Section 25.1.7, Lessor's share of Sublease Rent Payments shall in
no event be a negative number and, for all purposes of subsection (cc)
above and the other provisions of this Section 25.1.7, for any
calendar year in which the amount referenced in subsection (ii)(x)
above for such year is less than the amount referenced in subsection
(ii)(y) above for such year, the "Sublease Rent Payments" shall be
deemed to equal zero for such year. (For example, if Tenant subleases
a portion of a Leased Property, subsection (ii) above is applicable
thereto, during a particular calendar year Sublease Rent Payments are
received by Tenant in the aggregate amount of $100.00, and during such
calendar year Tenant paid to Lessor the following monthly amounts on
account of Lessor's share of Sublease Rent Payments: for each of the
months January through July, $20.00 (i.e.: $140.00 in aggregate) and
for each of the months August through December, $0.00, then, within
thirty (30) days after Lessor's receipt of Tenant's aforesaid Senior
Officer's Certificate for such calendar year, Lessor would be
obligated to pay to Tenant $60.00, representing the overage of the
aggregate amount received by Lessor during such calendar year
($140.00) over Lessor's share of the Sublease Rent Payments for such
calendar year ($80.00 or 80% of $100.00). Alternatively, if the
preceding facts are assumed except that, during the subject calendar
year, the amount referenced in subsection (ii)(x) above is less than
the amount referenced in subsection (ii)(y) above by $50.00, then,
pursuant to subsection (dd) above, the Sublease Rent Payments for such
calendar year shall be deemed to equal $0.00, and, consequently,
within thirty (30) days following receipt of Tenant's aforesaid Senior
Officer's Certificate for such calendar year,
46
Lessor would be obligated to pay to Tenant $140.00, representing the
overage of the aggregate amount received by Lessor during such
calendar year ($140.00) over Lessor's share of the deemed Sublease
Rent Payments for such calendar year ($0.00 or 80% of $0.00)).
In the event of an assignment or sublet pursuant to Section 25.1.2(i) hereof,
the provisions of this Section 25.1.7 shall apply to any further assignment or
sublet to a person or entity that is not an Affiliate of Tenant.
(b) Notwithstanding anything to the contrary provided in this Lease, in the
event Tenant enters into a sublease, license agreement, easement or other
agreement (an "Ancillary Agreement") pursuant to which a third party is given
the right to access, maintain or operate on the Leased Property, any antenna,
cell tower, satellite dish, cable or wire installation, or other communication
or telecommunication equipment, any billboard or signage, or any facility or
service not within the primary scope of Tenant's business as it is conducted on
the Effective Date, Tenant shall pay Lessor, as Additional Charges as and when
payable to Tenant, 80% of any consideration (including, without limitation,
capital stock, stock options or warrants, license fees and all other forms of
remuneration) received on account of such Ancillary Agreement. At the request of
Lessor, Tenant shall direct the third party in any Ancillary Agreement to pay
Lessor's 80% share of such consideration directly to Lessor. No such Ancillary
Agreement shall be entered into by Tenant without the prior written consent of
Lessor, which consent shall not be unreasonably withheld, delayed or conditioned
so long as Tenant complies with the applicable requirements of subsections (a)
through (d) of Section 25.1.2 above.
(c) Notwithstanding anything to the contrary contained in subsection
(a)(ii) above, Lessor shall not be entitled to any Sublease Rent Payments on
account of any sublease of space within the Leased Property for a flower shop,
beauty salon, xxxxxx shop, gift shop, restaurant, cafeteria, coffee shop, snack
shop or the like or any other concessionaires (which term shall not include,
without limitation, medical offices and clinics and other providers of medical
services) typically found in nursing centers or hospitals (as applicable
depending upon the Primary Intended Use of the particular Leased Property)
(including those subleases of the nature referenced in this subsection (c)
existing at the Leased Property as of the Commencement Date), so long as the
aggregate square footage of the Leased Property that is subleased for such uses
does not exceed twenty percent (20%) of the rentable space within the
Facility(ies) located on the Leased Property.
Section 25.1.8 Any assignment and/or sublease must provide that (a) it
shall be subject and subordinate to all of the terms and conditions of this
Lease, (b) the use of the Leased Property shall be restricted to the applicable
Primary Intended Use and shall not conflict with any Legal Requirement,
Insurance Requirement or any other provision of this Lease, (c) no sublessee or
assignee shall be permitted to further sublet all or any part of the Leased
Property or assign this Lease or its sublease except as expressly provided in
this Lease and (d) in the event of cancellation or termination of this Lease for
any reason whatsoever or of the surrender of this Lease whether voluntary,
involuntary or by operation of law, prior to the expiration date of such
sublease, including extensions and renewals granted thereunder, at Lessor's
option, the subtenant shall make full and complete attornment to Lessor for the
balance of the term of the sublease, which attornment shall be evidenced by an
agreement in form and substance reasonably
47
satisfactory to Lessor and which the subtenant shall execute and deliver within
5 days after request by Lessor, its successors or assigns and the subtenant
shall waive the provisions of any law now or hereafter in effect which may give
the subtenant any right of election to terminate the sublease or to surrender
possession in the event any proceeding is brought by Lessor to terminate this
Lease.
Section 25.1.9 Any assignment of this Lease or sublease of the
applicable Leased Property in contravention of the express terms of this Article
XXV shall be voidable at Lessor's option and the acceptance of rent by Lessor
from any such unauthorized assignee or subtenant shall not constitute a
recognition or acceptance of the tenancy of such unauthorized assignee or
subtenant.
Section 25.1.10 Tenant shall pay to Lessor, within ten (10) business
days after request therefor, all costs and expenses, including without
limitation reasonable attorneys' fees, incurred by Lessor in connection with any
request by Tenant to assign this Lease or sublet the applicable Leased Property.
Section 25.2 Attornment. Tenant shall insert in each sublease permitted
under Section 25.1 provisions to the effect that (a) such sublease is subject
and subordinate to all of the terms and provisions of this Lease and to the
rights of Lessor hereunder, (b) in the event this Lease shall terminate before
the expiration of such sublease, the subtenant thereunder will, at Lessor's
option, attorn to Lessor and waive any right the subtenant may have to terminate
the sublease or to surrender possession thereunder, as a result of the
termination of this Lease, and (c) in the event the subtenant receives a written
notice from Lessor or Lessor's assignees, if any, stating that an Event of
Default has occurred, the subtenant shall thereafter be obligated to pay all
rentals accruing under said sublease directly to the party giving such notice,
or as such party may direct. All rentals received from the subtenant by Lessor
or Lessor's assignees, if any, as the case may be, shall be credited against the
amounts owing by Tenant under this Lease.
Section 25.3 Sublease Limitation. Anything contained in this Lease to the
contrary notwithstanding, Tenant shall not sublet the Leased Property on any
basis such that the rental to be paid by the subtenant thereunder would be
based, in whole or in part, on either (i) the income or profits derived by the
business activities of the subtenant, or (ii) any other formula such that any
portion of the sublease rental received by Lessor would fail to qualify as
"rents from real property" within the meaning of Section 856(d) of the Code, or
any similar or successor provision thereto.
ARTICLE XXVI
Section 26.1 Financial Statements and Reporting. Tenant shall maintain, for
itself and its subsidiaries, a system of accounting established and administered
in accordance with generally accepted accounting principles, and shall provide
Lessor with the following information:
(a) As soon as available but in no event later than thirty (30) days after
the close of each fiscal month for Tenant and within thirty (30) days after the
close of each of the first three fiscal quarters for Tenant, an unaudited
consolidated balance sheet and statement of operations as
48
of the close of each such period and the related unaudited consolidated
statements of income, cash flows and stockholders equity for such period and for
the year to date of Tenant and its Subsidiaries (collectively, "Financial
Statements"), setting forth in each case in comparative form the corresponding
figures for the previous year, all prepared in accordance with generally
accepted accounting principles and all certified in an Officer's Certificate to
Lessor as being complete and accurate to the best of Tenant's knowledge, subject
to normal year end adjustments;
(b) Within sixty (60) days after the close of each Fiscal Year, for Tenant,
consolidated Financial Statements, in each case with accompanying notes and
schedules, prepared in accordance with generally accepted accounting principles
and audited by a firm of independent certified public accountants of recognized
standing selected by Tenant, which accountants shall have issued an audit report
thereon;
(c) Within twenty-five (25) days after the close of each of the first three
fiscal quarters, and within fifty (50) days after the close of each Fiscal Year,
the following information and data for the Facility, in each case in paper
format or electronic computer format: (1) income statements that include,
without limitation, a breakdown of Patient Revenues and other revenues itemized
by payor type and a breakdown of operating expenses to the extent reasonably
available under the then current facility operation reports, but including, at a
minimum, itemization of Facility rental expense, overhead charges or management
fees, bad debt expense and any material non-recurring charges; and (2) patient
census by payor type;
(d) Prior to the Commencement Date, annual budgets for the operation during
such Fiscal Year of the Facility, and to the extent reasonably available, a
breakdown of projected Patient Revenues and other revenues itemized by payor
type and a breakdown of projected operating expenses itemized to reflect, at a
minimum, Facility rental expense, overhead charges or management fees, bad debt
expense and any non-recurring charges;
(e) Within ten (10) days following the request by Lessor, at any time
during the Term of the Lease, an Officer's Certificate of Tenant certifying to
Lessor and Lessor's designees (which certificate may be relied upon by Lessor
and any prospective purchaser or mortgagee of the Leased Property) the following
information:
(i) this Lease is unmodified and is in full force and effect (or that
this Lease is in full force and effect as modified and setting forth the
modifications);
(ii) the dates to which Rent has been paid;
(iii) the Facility is in good standing with respect to all necessary
federal, state and local licenses, permits and other Authorizations;
(iv) if the Facility participates in the Medicare program it is in
compliance with the terms of its Medicare Provider Agreement and in good
standing with the Medicare program;
49
(v) if the Facility participates in the Medicaid program it is in
compliance with the terms of its Medicaid Provider Agreement and in good
standing with the Medicaid program;
(vi) the current number of licensed beds at the Facility; and
(vii) Tenant is not in default in the performance of this Lease or if
an Event of Default exists, specifying the same in reasonable detail;
together with, at the request of Lessor, complete and accurate copies (originals
of which shall be made available for inspection upon request by Lessor) of all
licenses, permits and other Authorizations necessary to operate the Facility in
accordance with all applicable laws;
(f) Within three (3) Business Days following Tenant's receipt thereof,
true, correct and complete copies of all professional negligence, malpractice
and/or general liability actuarial studies, reports and/or analyses prepared
from time to time for or by Tenant or at Tenant's direction other than those
prepared by its independent auditors;
(g) Within thirty (30) days after the close of each fiscal quarter, for
Mature Care, an unaudited balance sheet and statement of operations as of the
close of each such period and the related unaudited statements of income, cash
flows and stockholders equity for such period and for the year to date of Mature
Care, setting forth in each case in comparative form the corresponding figures
for the previous year, all prepared in accordance with generally accepted
accounting principles and all certified in an Officer's Certificate to Lessor as
being complete and accurate to the best of Tenant's knowledge, subject to normal
year end adjustments;
(h) Within sixty (60) days after the close of each Fiscal Year, for Mature
Care, a balance sheet and statement of operations as of the close of such Fiscal
Year and the related statements of income, cash flows and stockholder's equity
for such Fiscal Year, in each case with accompanying notes and schedules,
prepared in accordance with generally accepted accounting principles and audited
by a firm of independent certified public accountants of recognized standing
selected by Tenant, which accountants shall have issued an audit report thereon;
(i) On or prior to the date which is sixty (60) days following the end of
each Fiscal Year, a report that allocates all professional negligence and
malpractice liability expenses incurred by Tenant and its Subsidiaries and
Affiliates during such preceding Fiscal Year to the Facility, to each of the
other Facilities under the Combined Leases and to all other healthcarerelated
facilities of Tenant and its Subsidiaries and Affiliates that are not leased by
Tenant under the Combined Leases and that explains the methodology of such
allocation in reasonable detail;
(j) Such supplements to the foregoing documents and such other information
and reports (including, without limitation non-financial information), as any
Facility Mortgagee may reasonably request, provided such supplements, and such
information and reports, are consistent with the types of supplements, reports
and information generally utilized by such institutions within the financing
industry;
50
Section 26.2 Furnishing Notice. During the Term of this Lease, Tenant shall
furnish to Lessor within two (2) days of receipt by Tenant, copies of all
licenses, surveys and inspection reports relating to the Leased Property,
together with copies of all correspondence received by Tenant from any and all
regulatory authorities having cognizance or authority over operations at the
Leased Property, including but not limited to the agencies regulating Medicare
and Medicaid certification of the Leased Property, and their reimbursement
and/or provider programs. Tenant shall also furnish to Lessor copies of all
plans of correction submitted to any such agency simultaneously with such
submission. Tenant shall notify Lessor immediately (i) each time a survey or
inspection of the Leased Property is commenced by any regulatory body or
authority and in the event, as a result of any such survey or inspection, Tenant
is advised, or has a reasonable basis to believe, that the applicable regulatory
body or authority proposes or intends to take any action to revoke, rescind or
not renew the Facility's license or Medicare or Medicaid recertification and/or
(ii) Tenant receives written or verbal notification or has a reasonable basis to
believe that the applicable agency has appointed or intends to appoint a
receiver or trustee to assume operational and/or financial responsibility for
the Leased Property.
Section 26.3 Quarterly Meetings; Facility Level Meetings and Reviews. On a
quarterly basis, Tenant shall permit, and upon request by Lessor shall make
appropriate arrangements for, Lessor and/or its representatives to discuss the
affairs, operations, finances and accounts of Tenant and its Subsidiaries and
Affiliates with, and be advised as to the same by, senior officers of Tenant
(and such of Tenant's independent accountants and other financial advisors as
would be relevant to the topic of the particular meeting), all as Lessor may
deem appropriate for the purpose of verifying any report(s) delivered by Tenant
to Lessor under this Lease or for otherwise ascertaining compliance with this
Lease by Tenant or the business, operational or financial condition of Tenant
and/or its Subsidiaries and Affiliates and/or the Facility. Without limitation
of the foregoing, from time to time promptly following receipt of written notice
from Lessor to Tenant (and in any event within ten (10) Business Days of such
receipt), Tenant shall permit, and shall make appropriate arrangements for,
Lessor and/or its representatives or designees to discuss the business,
operational and financial condition of the Facility designated by Lessor with,
and be advised as to the same by, appropriate personnel of Tenant and its
Subsidiaries and Affiliates having operational and accounting responsibilities
for the Facility so specified by Lessor and to review, and make abstracts from
and copies of, the books, accounts and records of Tenant and its Subsidiaries
and Affiliates relative to the Facility, in each case provided, and on the
condition, that any such discussions or reviews, abstracting or copying shall
not materially interfere with Tenant's business operations relative to the
Facility. Unless otherwise agreed in writing by Lessor and Tenant, all of the
discussions, reviews, abstracting and copying referenced in this Section 26.3
shall occur during normal business hours.
ARTICLE XXVII
Section 27.1 Lessor's Right to Inspect. Tenant shall permit Lessor, any
then current or prospective Facility Mortgagee or other lender to Lessor, any
then current or prospective investment banker, mortgage broker or other
professional engaged by Lessor, any prospective purchaser of the Leased Property
or any interest in Lessor or any Affiliate of Lessor and/or, only during any
permitted exhibition period under Section 40.4 below, any prospective lessee,
and its and their respective authorized representatives, to enter upon and
conduct a physical inspection of the Leased Property during usual business hours
and, except in an emergency, upon not less
51
than three (3) business days prior notice, subject to any security, health,
safety or confidentiality requirements of any governmental agency or insurance
requirement relating to the Leased Property, or imposed by law or applicable
regulations and provided that no such entry or inspection shall materially
interfere with Tenant's business operations within the affected Leased Property.
Nothing contained in this Section 27.1 shall limit or impair Lessor's right to
enter upon and inspect the Leased Property, or any of Lessor's other rights or
remedies, upon the occurrence of any Event of Default by Tenant.
ARTICLE XXVIII
Section 28.1 No Waiver. No failure by Lessor or Tenant to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
ARTICLE XXIX
INTENTIONALLY OMITTED.
ARTICLE XXX
Section 30.1 Acceptance of Surrender. No surrender to Lessor of this Lease
or of the Leased Property or any part of any thereof, or of any interest herein
or therein, shall be valid or effective unless agreed to and accepted in writing
by Lessor and no act by Lessor or any representative or agent of Lessor, other
than such a written acceptance by Lessor, shall constitute an acceptance of any
such surrender.
ARTICLE XXXI
Section 31.1 No Merger of Title. There shall be no merger of this Lease or
of the leasehold estate created thereby by reason of the fact that the same
person, firm, corporation or other entity may acquire, own or hold, directly or
indirectly, (a) this Lease or the leasehold estate created hereby or any
interest in this Lease or such leasehold estate and (b) the fee estate in the
Leased Property.
ARTICLE XXXII
Section 32.1 Conveyance by Lessor. Subject only to the Purchase and Sale
Agreement, Lessor may, without the consent or approval of Tenant, sell,
transfer, assign, convey or otherwise dispose of the Leased Property. If Lessor
or any successor owner of the Leased Property shall sell, transfer, assign,
convey or otherwise dispose of the Leased Property in accordance with the terms
hereof other than as security for a debt, and the purchaser, grantee, assignee
or transferee of the Leased Property shall expressly assume all obligations of
Lessor hereunder with respect to the Leased Property arising or accruing from
and after the date of such sale, conveyance, transfer, assignment or other
disposition and shall be reasonably capable of performing the obligations of
Lessor hereunder, Lessor or such successor owner, as the case may be, shall
52
thereupon be released from all future liabilities and obligations of Lessor
under this Lease with respect to the Leased Property arising or accruing from
and after the date of such sale, conveyance, transfer, assignment or other
disposition as to the Leased Property and all such future liabilities and
obligations with respect to the Leased Property shall thereupon be binding upon
such purchaser, grantee, assignee or transferee. Lessor agrees to deliver to
Tenant promptly following the consummation of any such sale, conveyance,
transfer, assignment or other disposition (other than as security for a debt),
written notice of such sale, conveyance, transfer, assignment or other
disposition and, if applicable, a copy of the aforesaid assumption agreement.
ARTICLE XXXIII
Section 33.1 Quiet Enjoyment. So long as Tenant shall pay all Rent as the
same becomes due and shall fully comply with all of the terms of this Lease and
fully perform its obligations hereunder and thereunder, Tenant shall peaceably
and quietly have, hold and enjoy the Leased Property for the Term hereof, free
of any claim or other action by Lessor or anyone claiming by, through or under
Lessor, but subject to all Permitted Encumbrances, including, without
limitation, liens and encumbrances of record as of the date hereof or otherwise
permitted to be created by Lessor hereunder, liens as to the obligations of
Lessor that are either not yet due or which are being contested in good faith
and by proper proceedings, and liens hereafter consented to by Tenant. No
failure by Lessor to comply with the foregoing covenant shall give Tenant any
right to cancel or terminate this Lease or xxxxx, reduce or make a deduction
from or offset against the Rent or any other sum payable under this Lease, or to
fail to perform any other obligation of Tenant hereunder. Notwithstanding the
foregoing, Tenant shall have the right, by separate and independent action, to
pursue any claim it may have against Lessor as a result of a breach by Lessor of
the covenant of quiet enjoyment contained in this Section.
ARTICLE XXXIV
Section 34.1 Notices.
A. Any Notice required to be given under this Sublease or pursuant to law
shall be in writing and, unless otherwise required by law, shall be either
personally delivered (against a receipt), or sent by reputable overnight courier
service or facsimile, or given by registered or certified mail, return receipt
requested, postage prepaid, addressed to the respective parties at the following
addresses:
If to Lessor or Kindred:
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax:
53
with copies to:
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
and to
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Leased Property Manager
Fax:
and to
Xxxxx Xxxxxxxx
XX Xxxxxx Chase Bank
000 Xxxxxxx Xxxxxxxxxx Xxxx- 0/XXX0
Xxxxxx, XX 00000
Fax:
and to
Xxxxx Xxx
XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax:
If to Tenant:
Senior Health Management - Gold Coast, L.L.C.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx, President
Fax: (000)000-0000
with copies to:
Xxxxxxx Xxxxx & Xxxxx, P.C.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxx Center
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esquire
Fax: (000) 000-0000
54
B. Either party may from time to time specify in writing a new address to
which any such Notice intended for such party shall thereafter and until further
Notice be addressed.
C. Any Notice given pursuant hereto shall be deemed to have been received
on delivery, if personally delivered or delivered by reputable overnight courier
service or facsimile, or three (3) Business Days after the mailing thereof if
mailed in accordance with the terms hereof, such mailing to be effected by
depositing the Notice in any post office, branch post office or official
depository regularly maintained by the United States Postal Service.
ARTICLE XXXV
Section 35.1 Appraisals. In the event that it becomes necessary to
determine the Fair Market Value of a Capital Alteration or of the Leased
Property, pursuant to Section 10.3 and the parties cannot agree amongst
themselves on such values, allocations or percentages, the procedures of this
Article XXXV shall apply.
Section 35.2 Appraisal Notice. If a determination of the Fair Market Value
is required pursuant to Section 10.3, then Lessor or Tenant may give written
notice (an "Appraisal Notice") to the other party, which Appraisal Notice shall
state the requesting party's desire for an appraisal or other determination
under this Article XXXV.
Section 35.3 Appointment of Appraisers. The parties hereby agree that for
all purposes under this Article XXXV, the appraiser (the "Final Appraiser")
shall be American Appraisal Associates ("AAA"), unless AAA is not available, in
which case the Final Appraiser shall be Valuation Counselors ("VC"). If neither
AAA nor VC are available, then the parties shall endeavor to agree on a Final
Appraiser. If and only if the parties cannot agree on a Final Appraiser and
neither AAA nor VC are available within such twenty (20) day period, then either
party may request that the American Arbitration Association or any successor
organization thereto appoint a Final Appraiser which (a) shall be a member of
the American Institute of Real Estate Appraisers (or any successor organization
thereto) and/or a person employed by an accounting firm that, at the time of
such appointment, is one of the five (5) largest public accounting firms in the
United States, and (b) shall have not less than five (5) years experience, and
substantial expertise, in valuing nursing centers and/or determining the fair
market rental value of nursing centers, and both parties shall be bound by any
such appointment. If no such Final Appraiser shall have been appointed in such
manner within ninety (90) days after issuance of the original Appraisal Notice,
either Lessor or Tenant may apply to any court having jurisdiction to have such
appointment made by such court.
Section 35.4 Appraisal Process. The Final Appraiser appointed in accordance
with the foregoing procedures shall complete the appraisals, and make any other
determinations, submitted to him or her in accordance with the terms of this
Lease within thirty (30) days after his or her appointment and shall notify each
of Lessor and Tenant of his or her appraisals and other determinations. In
performing such appraisals, and making such other determinations, the Final
Appraiser shall make the assumptions, and follow any other directives or
instructions, contained in this Lease relative to the subject matter of the
Final Appraiser's appointment.
55
Section 35.5 Binding Nature. The provisions of this Article XXXV, and
related provisions of this Lease, providing for determination of certain values,
allocations, percentages and other matters by the Final Appraiser shall be
specifically enforceable to the extent such remedy is available under applicable
law, and any determination hereunder shall be final and binding upon the parties
except as otherwise provided by applicable law.
Section 35.6 Costs. Tenant shall pay the fees and expenses of the Final
Appraiser and all other costs and expenses incurred in connection with the
appointment thereof.
ARTICLE XXXVI
Section 36.1 General REIT Provisions;
Section 36.1.1 Tenant understands that, Lessor, its affiliates, or a
successor landlord may be required to qualify as a real estate investment trust
("REIT"), and accordingly the following requirements (the "REIT Requirements")
must be satisfied:
(i) Rent allocable for purposes of Section 856 of the Code to Lessor's
personal property that is leased to Tenant under a lease at the beginning
and end of a calendar year cannot exceed 15% of the total Rent under such
lease.
(ii) Tenant cannot sublet the property that is leased to it by Lessor,
or enter into any similar arrangement, on any basis such that the rental or
other amounts paid by the sublessee thereunder would be based, in whole or
in part, on either (i) the net income or profits derived by the business
activities of the sublessee or (ii) any other formula such that any portion
of the rent paid by Tenant to Lessor would fail to qualify as "rents from
real property" within the meaning of Section 856(d) of the Code.
(iii) Tenant cannot transfer or assign Tenant's rights under the Lease
to, or sublease the property leased to it by Lessor to, or enter into any
similar arrangement with, any person in which Lessor has provided written
notice to Tenant that it owns, directly or indirectly, a 10% or more
interest, within the meaning of Section 856(d)(2)(B) of the Code.
Section 36.1.2 Notwithstanding any other provisions of this Lease to the
contrary, Tenant agrees, and agrees to use reasonable efforts to cause its
Affiliates, to cooperate in good faith with Lessor to ensure that the REIT
Requirements are satisfied, including, but not limited to, providing Lessor with
information about the ownership of Tenant, and its Affiliates to the extent that
such information is reasonably available. Tenant agrees, and agrees to use
reasonable efforts to cause its Affiliates, upon request by Lessor to take
reasonable action necessary to ensure compliance with the REIT Requirements.
Immediately after becoming aware that the REIT Requirements are not, or will not
be, satisfied, Tenant shall notify, or use reasonable efforts to cause its
Affiliates to notify, Lessor of such noncompliance.
Lessor agrees to reimburse Tenant for the reasonable amount of any out of
pocket expenses incurred by Tenant or its Affiliates in satisfying the
requirements of this Section 36.1.2.
Section 36.1.3 Lessor and Tenant agree that, for all income tax purposes,
they shall accrue and report and maintain the Rent (or the portion thereof
falling within a taxable period) in the amounts specified in this Lease for each
Lease Year and shall not report as income
56
or deduct, as the case may be, amounts of income or deduction allocable to such
Lease Year in a manner inconsistent with such amounts, it being the intent of
the parties that accrual of income and deductions for federal and other income
tax purposes shall be in the same amounts and at the same times as such amounts
are specified in this Lease. Neither Lessor nor Tenant shall treat this Lease as
subject to rent leveling (or constant rental accrual) under the disqualified
rental agreement rules of Section 467 of the Code.
Section 36.1.4 In the event that Lessor or any successor landlord to this
Lease becomes subject to the REIT Requirements, Tenant agrees to amend this
Lease from time to time to the extent reasonably requested by Lessor or such
successor landlord, in order to conform the Lease to the REIT Requirements.
ARTICLE XXXVII
Section 37.1 Intentionally Omitted
Section 37.2 Lessor's Option to Purchase the Tenant's Personal Property.
Effective on not less than ninety (90) days prior written notice given at any
time within one hundred eighty (180) days prior to the expiration of the Term,
but not later than ninety (90) days prior to such expiration, or such shorter
notice as shall be appropriate if this Lease is terminated in whole or in part
or Tenant is dispossessed of the Leased Property prior to the expiration of the
Term, Lessor or its designee shall have the option to purchase all (but not less
than all) of Tenant's Personal Property located at the Leased Property, if any,
at any expiration or termination of the Term, for a purchase price equal to the
unamortized portion of the original cost based upon the economic useful life, as
defined by the American Hospital Guide (or, if such guide ceases to be published
by the American Hospital Association, a substitute guide or other economic
useful life reference book mutually agreed upon by Lessor and Tenant, each
acting reasonably), subject to, and with appropriate price adjustments for, all
equipment leases, conditional sale contracts, UCC-1 financing statements and
other encumbrances to which such Personal Property is subject. Promptly
following demand by Lessor (but in any event within thirty (30) days following
such demand), Tenant shall deliver to Lessor a computation and statement, in
form, content and detail reasonably satisfactory to Lessor, of the purchase
price described above as of the date of such expiration, termination or
dispossession, as the case may be, for all of Tenant's Personal Property located
at the Leased Property.
ARTICLE XXXVIII
Section 38.1 Lessor May Grant Liens. Without the consent of Tenant, Lessor
may, subject to the terms and conditions set forth below in this Section 38.1,
from time to time, directly or indirectly, create or otherwise cause to exist
any lien, encumbrance or title retention agreement ("Encumbrance") upon the
Leased Property or any portion thereof or interest therein, whether to secure
any borrowing or other means of financing or refinancing.
ARTICLE XXXIX
Section 39.1 Environmental Indemnity. Tenant hereby agrees to hold harmless
Lessor, any successors to Lessor's interest in this Lease and in the Leased
Property, and Lessor's and such successors' directors, officers, partners,
members, employees and agents from and against
57
any losses, claims, damages (including consequential damages), penalties, fines,
liabilities (including strict liability), costs (including cleanup and recovery
costs), and expenses (including expenses of litigation and reasonable attorneys'
fees) incurred by Lessor or any other indemnitee or assessed against the Leased
Property by virtue of any claim or lien by any governmental or
quasi-governmental unit, body, or agency, or any third party, for cleanup costs
or other costs pursuant to the Comprehensive Environmental Response Compensation
and Liability Act of 1980, the Hazardous Materials Transportation Act, the
Resource Conservation and Recovery Act, all as amended from time to time, and
all state laws and federal and state regulations pursuant to the foregoing
(collectively "Environmental Laws"). Tenant's indemnity shall survive the
expiration or any termination of this Lease. Provided, however, Tenant shall
have no indemnity obligation with respect to (i) Hazardous Materials first
introduced to the Leased Property subsequent to the date that Tenant's occupancy
of the Leased Property shall have fully terminated or (ii) Hazardous Materials
first introduced to the Leased Property prior to the date hereof. "Hazardous
Materials" means any substance the presence of which poses a hazard to the
health or safety of persons on or about the Leased Property or which requires
removal or remediation under any Environmental Law, including without
limitation, any substance which is toxic, explosive, flammable, radioactive, or
otherwise hazardous or is included within the meaning of "hazardous substance",
"hazardous waste", "toxic substance", or "pollutant" as defined in any
Environmental Law. At any time during the Term of this Lease, Lessor may require
one or more environmental audits of the Leased Property, in such form, scope and
substance as specified by Lessor, at Tenant's expense. Tenant shall, within
thirty (30) days after receipt of an invoice from Lessor, reimburse Lessor for
all costs and expenses incurred in reviewing any environmental audit, including
without limitation, reasonable attorneys' fees and costs.
ARTICLE XL
Section 40.1 Miscellaneous. Anything contained in this Lease to the
contrary notwithstanding, all claims against, and liabilities of, Tenant or
Lessor arising prior to any date of termination or expiration of this Lease
shall survive such termination or expiration. If any term or provision of this
Lease or any application hereof shall be invalid or unenforceable, the remainder
of this Lease and any other application of such term or provision shall not be
affected thereby. If any late charges provided for in any provision of this
Lease are based upon a rate in excess of the maximum rate permitted by
applicable law, the parties agree that such charges shall be fixed at the
maximum permissible rate. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated except by an instrument in writing and
in recordable form signed by Lessor and Tenant. All the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. The headings in this Lease are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 40.2 Non-Recourse. Tenant specifically agrees to look solely to
Lessor's and any successor owner's interest in the Leased Property for recovery
of any judgment from Lessor, it being specifically agreed that neither Lessor,
any such successor owner, nor any officer, director, employee, lender, agent or
Affiliate of Lessor or any such successor owner shall ever be personally liable
for any such judgment or for the payment of any monetary obligation to Tenant.
Tenant shall have no recourse against any other property or assets of Lessor or
any successor
58
owner, or against any property or assets of any officer, director, shareholder,
partner, lender, agent or Affiliate of Lessor or any successor owner. The
provision contained in the foregoing sentence is not intended to, and shall not,
limit any right that Tenant might otherwise have to obtain injunctive relief
against Lessor or Lessor's successors in interest, or any action not involving
the personal liability of Lessor (original or successor). Furthermore, except as
otherwise expressly provided herein, in no event shall Lessor (original or
successor) ever be liable to Tenant for any special, indirect or consequential
damages suffered by Tenant from whatever cause.
Section 40.3 Transition of Operations.
(a) Within twenty-four (24) hours of the occurrence of an Operations
Transfer Event and delivery by Lessor to Tenant of a written notice that an
Operations Transfer Event has occurred, Tenant shall execute the operations
transfer agreement as of such date, in the form attached hereto as Exhibit G,
which agreement shall govern the transition of operations from Tenant to Lessor
or a third party operator selected by Lessor, as the case may be.
(b) INTENTIONALLY OMITTED
(c) Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not, prior to the sixtieth (60th) day preceding the expiration of
this Lease as to the Leased Property, commence to wind up and terminate the
operations of the Facility operated thereon by relocating the patients or
occupants thereof to other health care facilities (a "Facility Termination"). If
Lessor has not notified Tenant in writing prior to the sixtieth (60th) day
preceding the expiration of this Lease that Lessor has procured a successor
operator for the Facility who has submitted applications for the Authorizations
required to assume the operations of the Facility (a "Qualified Successor"),
then Tenant may commence the Facility Termination and, upon the expiration of
this Lease, Tenant shall vacate the Leased Property and surrender possession
thereof to Lessor in accordance with all of the applicable requirements of this
Lease. If, prior to the sixtieth (60th) day preceding the expiration of this
Lease as to a Leased Property and the Facility thereon, Lessor notifies Tenant
in writing that Lessor has procured a Qualified Successor for Facility, Tenant
shall not commence the Facility Termination (any notice of the nature referenced
in this sentence is herein referred to as a "Section 40.3 Notice"). In such
event, Tenant shall thereafter operate the Facility in accordance with all of
the requirements of this Lease until the earliest to occur of (i) the date (on
or after the expiration of this Lease) on which such Qualified Successor will
assume the operation of the Facility, as specified in a written notice from
Lessor to Tenant given not less than thirty (30) days prior to the date of such
assumption, (ii) the date that is ninety (90) days after the expiration of this
Lease as to the Leased Property and Facility, and (iii) the date (on or after
the expiration of this Lease as to the Leased Property and Facility) which is
ninety (90) days after Tenant receives written notice from Lessor that,
notwithstanding the foregoing, Tenant may commence the Facility Termination, on
which earliest date, Tenant shall vacate the Leased Property in question and
surrender possession thereof to Lessor in accordance with all of the applicable
requirements of this Lease. In the event Lessor sends Tenant a Section 40.3
Notice and, as a result thereof, Tenant operates a Facility beyond the aforesaid
expiration date applicable thereto, then, from and after the expiration of this
Lease and until the earliest to occur of the dates described in clauses (i),
(ii) and (iii) above (the "Reimbursement Period"), Lessor shall reimburse Tenant
for any operating
59
deficits of the Facility that Tenant may be required to fund out-of-pocket on
account of operating losses and expenses of the Facility incurred by Tenant with
respect to the Reimbursement Period. Any such reimbursement shall be due from
Lessor to Tenant within thirty (30) days after written request by Tenant,
provided that Tenant shall furnish such documentation of such operating
deficits, losses and expenses as Lessor may reasonably request. For purposes of
determining the amount of any operating deficits, or operating losses and
expenses, so incurred by Tenant with respect to the Reimbursement Period, Lessor
and Tenant agree that (1) there shall be included therein, without limitation,
(x) Rent, which shall continue to be due and payable or accrue, as the case may
be, at the same rates as are in effect prior to the expiration of the Term, and
(y) any increase in employee severance, and all costs and liabilities, that may
be incurred by Tenant in connection with Tenant's employees' employment by
virtue of Tenant's delayed compliance with the Worker Adjustment and Retraining
Notification Act, or any similar State law, due to Tenant's cooperation and
other obligations under this subsection (c), and (2) Tenant shall serve upon its
employees any notice required under the Worker Adjustment and Retraining
Notification Act, or any similar State law, as soon as reasonably practicable
after it becomes clear when the Reimbursement Period will end, whether due to
Tenant's receipt of a written notice under subsection (i) or (iii) above or due
to the terms of subsection (ii) above which provides that, in all events, the
Reimbursement Period shall end no later than the date referenced in such
subsection (ii). In lieu of the aforesaid reimbursement from Lessor, Tenant may
instead elect to continue to be responsible for payment of all costs and
expenses of continuing to comply with this Lease as to the Facility during the
Reimbursement Period, provided and on the condition that Tenant provides written
notice to Lessor of such election within fifteen (15) days after Tenant's
receipt of Lessor's Section 40.3 Notice. In the event Tenant so elects to forego
its aforesaid reimbursement from Lessor, during the Reimbursement Period, Fixed
Rent shall be payable in the manner set forth in Section 3.1 of this Lease, but
with each such component of Rent being reduced to one-half (1/2) of the
respective amounts thereof as of the expiration of the Term.
Section 40.4 Right to Enter. Lessor and Lessor's agent shall have the right
to enter the Leased Property at all reasonable times for the purpose of
exhibiting the Leased Property to others during the last eighteen (18) months of
the Term.
Section 40.5 Integration. This Lease contains the entire agreement between
Lessor and Tenant with respect to the subject matter hereof. No representations,
warranties or agreements have been made by Lessor except as set forth in this
Lease.
Section 40.6 Severability. If any term or provision of this Lease is held
or deemed by Lessor to be invalid or unenforceable, such term or provision shall
be modified as slightly as possible so as to render it valid and enforceable; if
such term or provision, as modified, shall be held or deemed invalid or
unenforceable, such holding shall not affect the remainder of this Lease and
same shall remain in full force and effect, unless such holding substantially
deprives Tenant of the use of the Leased Property or Lessor of the rents herein
reserved, in which event this Lease shall forthwith terminate as if by
expiration of the Term.
Section 40.7 Subject to Law.
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(a) All rights, powers and remedies provided herein may be exercised only
to the extent that the exercise thereof, including those which do not require
the giving of notice, does not violate any applicable law, and are intended to
be limited to the extent necessary so that they will not render this Lease
invalid or unenforceable under any applicable law. All waivers, consents,
confessions and releases provided for in this Lease are effective only to the
extent permitted by applicable law.
(b) This Lease was negotiated in the State of New York, which State the
parties agree has a substantial relationship to the parties and to the
underlying transaction embodied hereby. In all respects, the law of the State of
New York shall govern the validity of and enforceability of the obligations of
the parties set forth herein, but all provisions hereof relating to the creation
of the leasehold estate and remedies set forth in Article XVI shall be governed
by the laws of the State of Florida and the parties hereto will submit to
jurisdiction and the laying of venue for any suit on this Lease in the
Commonwealth of Kentucky.
Section 40.8 Waivers. No waiver of any condition or covenant herein
contained, or of any breach of any such condition or covenant, shall be held or
taken to be a waiver of any subsequent breach of such covenant or condition, or
to permit or excuse its continuance or any future breach thereof or of any
condition or covenant herein construed as a waiver of such default, or of
Lessor's right to terminate this Lease or exercise any other remedy granted
herein on account of such existing default.
Section 40.9 Binding Character. This Lease shall be binding upon and shall
inure to the benefit of the heirs, successors, personal representatives, and
permitted assigns of Lessor and Tenant.
Section 40.10 Modification. This Lease may be only be modified by a writing
signed by both Lessor and Tenant.
Section 40.11 Forbearance. No delay or omission by either party hereto to
exercise any right or power accruing upon any noncompliance or default by the
other party with respect to any of the terms hereof shall impair any such right
or power or be construed to be a waiver thereof.
Section 40.12 INTENTIONALLY OMITTED.
Section 40.13 Unified Commercial Operating Lease. It is acknowledged and
agreed that this Lease is an operating lease, and not a capital lease, for all
accounting, tax and legal purposes.
[The remainder of this page is intentionally left blank]
61
IN WITNESS WHEREOF, the parties have caused this Lease to be executed and
their respective corporate seals to be hereunto affixed and attested by their
respective officers hereunto duly authorized.
Witnesses: KINDRED NURSING CENTERS
SOUTH, L.L.C.
By:
---------------------------------------- ---------------------------------
Name: Name:
Title:
----------------------------------------
Name:
Witnesses: [ ]
By:
---------------------------------------- ---------------------------------
Name: Name:
Title:
----------------------------------------
Name:
62
List of Exhibits and Schedules
Exhibit A Legal Description
Exhibit B Fixed Rent
Exhibit C Intentionally omitted
Exhibit D Ownership Structure of Tenant
Exhibit E Management Agreement
Exhibit F Combined Leases
Exhibit G Operations Transfer Agreement
Schedule 1 Insurance Requirements
63
Exhibit A
Legal Description
(see attached)
64
Exhibit B
Fixed Rent
65
Exhibit C
Intentionally omitted
66
Exhibit D
Ownership Structure of Tenant
67
Exhibit E
Management Agreement
68
Exhibit F
Combined Leases
Lease Agreement between FI- Bay Pointe, LLC, and Kindred Nursing Centers South,
L.L.C., regarding Bay Pointe Nursing Pavilion
Lease Agreement between FI- Boca Raton, LLC, and Kindred Nursing Centers East,
L.L.C., regarding Boca Raton Rehabilitation Center
Lease Agreement between FI- Broward Nursing, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Kindred Rehabilitation and Nursing Center of Broward
Lease Agreement between FI- Cape Coral, LLC, and Kindred Nursing Centers South,
L.L.C., regarding Rehabilitation and Healthcare Center of Cape Coral
Lease Agreement between FI- Carrollwood Care, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Carrollwood Care Center
Lease Agreement between FI-Casa Xxxx, LLC, and Kindred Nursing Centers South,
L.L.C. regarding Casa Xxxx Rehabilitation and Extended Care
Lease Agreement between FI-Evergreen Xxxxx, LLC, and Kindred Nursing Centers
South, L.L.C. regarding Evergreen Xxxxx Health and Rehabilitation Center
Lease Agreement between FI-Highland Pines, LLC, and Kindred Nursing Centers
South, L.L.C. regarding Highland Pines Rehabilitation and Nursing Center
Lease Agreement between FI-Highland Terrace, LLC, and Kindred Nursing Centers
East, L.L.C. regarding Highland Terrace Rehabilitation & Nursing Center
Lease Agreement between FI-Palm Beaches, LLC, and Kindred Nursing Centers East,
L.L.C., regarding The Rehabilitation Center of the Palm Beaches
Lease Agreement between FI- Pompano Rehab, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Pompano Rehabilitation & Nursing Center
Lease Agreement between FI-Xxxxxxx Rehab, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Healthcare and Rehabilitation of Xxxxxxx
Lease Agreement between FI-Tampa, LLC, and Kindred Nursing Centers South,
L.L.C., regarding Rehabilitation & Healthcare Center of Cape Coral
Lease Agreement between FI- The Abbey, LLC, and Kindred Nursing Centers South,
L.L.C., regarding The Abbey Rehabilitation and Nursing Center
69
Lease Agreement between FI- The Oaks, LLC, and Kindred Nursing Centers South,
L.L.C., regarding The Oaks at Avon
Lease Agreement between FI- Titusville, LLC, and Kindred Nursing Centers South,
L.L.C., regarding Titusville Rehabilitation & Nursing Center
Lease Agreement between FI-Waldemere, LLC, and Kindred Nursing Centers South,
L.L.C., regarding Waldemere Place
Lease Agreement between FI-Windsor Xxxxx, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Windsor Xxxxx Rehabilitation and Healthcare Center
Lease Agreement between FI- Xxxxxxx Court, LLC, and Kindred Nursing Centers
South, L.L.C., regarding Xxxxxxx Court
70
Exhibit G
Operations Transfer Agreement
71
Schedule 1
Insurance Requirements
72
EXHIBIT C
TERM SHEET: OPERATIONS TRANSFER COVENANTS
April 4, 2003
TERM SHEET: OPERATIONS TRANSFER COVENANTS
The following is a summary of the material terms of the operations transfer
covenants (the "Operations Transfer Covenants") to be made a part of each of
those certain subleases (each a "Sublease"), each between an affiliate of
Kindred Healthcare, Inc. ("Kindred Parent" and collectively with such
affiliates, "Kindred") and an affiliate of Florida Institute for Long Term Care,
LLC ("Florida Institute"; each such affiliate shall be known as an "FI
Operator"), for nursing centers in Florida (each a "Facility"), which Subleases
shall be executed following the date hereof. Reference is hereby made to that
certain Operations Transfer Agreement (the "OTA"; capitalized terms not defined
herein shall have the meanings given them in the OTA), [to be executed], among
Kindred Parent, Senior Health Management, LLC ("SHM"), Florida Institute, and
the FI Operators.
Asset Transfer As of the date that the Operations
Transfer Covenants become effective
under the terms of any Sublease (the
"Transfer Effective Date"), the
applicable FI Operator shall transfer
and convey the following assets (the
"Transferred Assets") to Kindred (with
respect to the assets described in (a)
and (b) below only, for and in
consideration of an amount equal to the
book value of such assets): (a) all
inventory and supplies relating to the
operation of the Facility owned by the
FI Operator as of the Transfer Effective
Date, (b) all personal property relating
to the operation of the Facility owned
by the FI Operator as of the Transfer
Effective Date, (c) the Assumed Facility
Contracts (as hereinafter defined), (d)
all licenses relating to the operation
of the Facility, to the extent
transferable, and (e) all books and
records relating to the Facility, as
described in Section 3.04 of the OTA
(the "Transferred Books and Records").
The Transferred Assets shall not
include: (i) assets not directly
associated with the operation of the
Facility, (ii) accounts receivable,
(iii) any Medicare or Medicaid provider
agreements in respect of such Facility,
and (iv) any cash at hand except for
Patient Trust Funds.
Patient Census, Patient Trust Funds No later than five (5) days following
and Patient Inventory the Transfer Effective Date (or prior to
the Transfer Effective Date, in the case
of expiration of the Sublease by its
terms), the FI
Operator shall deliver to Kindred the
following items, each dated as of the
Transfer Effective Date: (a) a Patient
Census substantially in the form
attached to the OTA as Schedule 3.02(a),
(b) a complete accounting of Patient
Trust Funds then held by the FI
Operator, in substantially the form as
the accounting delivered by Kindred to
the FI Operator pursuant to Section
3.02(b) of the OTA, and (c) a Patient
Inventory in substantially the same form
as the Patient Inventory delivered by
Kindred to the FI Operator pursuant to
Section 3.02(c) of the OTA. Within ten
(10) days of the Transfer Effective
Date, FI Operator will transfer the
Patient Trust Funds and Patient
Inventory related to the applicable
Facility to Kindred.
Each FI Operator will provide the
indemnity set forth in Section 3.02(e)
of the OTA; Kindred will provide the
indemnity set forth in Section 3.02(f)
of the OTA.
Accounts Receivable Payments received by Kindred with
respect to a Facility following the
Transfer Effective Date ("Post-Transfer
Payments") shall be applied as set forth
in Section 3.03 of the OTA as between
each FI Operator and Kindred (as if the
FI Operator were Kindred under the OTA
and Kindred were the New Operator under
the OTA), provided, that any such
Post-Transfer Payments shall first be
applied to any amounts due to Kindred
under any of the Subleases.
Records Within 60 days of the Transfer Effective
Date, the FI Operator shall remove from
the Facility all of the records
referenced in Section 3.04(a) of the
OTA.
On the Transfer Effective Date, FI
Operator shall deliver to Kindred all of
the Transferred Books and Records.
Contracts Effective as of the Transfer Effective
Date, FI Operator shall assign, and
Kindred shall assume and agree to be
bound by all the terms and conditions of
all vendor, service and
2
operating contracts directly related to
the operations of such Facility (the
"Facility Contracts"), with the
exception of any such contracts which
have termination penalties or which FI
Operator or its assignee cannot
terminate with thirty (30) days notice
without penalty (such excluded
contracts, the "Excluded Facility
Contracts"). On or immediately following
the Transfer Effective Date (or prior to
the Transfer Effective Date, in the case
of expiration of the Sublease by its
terms), the FI Operator shall deliver to
Kindred a complete list of the Facility
Contracts, in effect as of the Transfer
Effective Date. Within ten (10) days of
receipt of such list, Kindred shall
notify the FI Operator which of the
Excluded Facility Contracts it shall
assume and following such notification,
FI Operator shall assign, and Kindred
shall assume and agree to be bound by
all the terms and conditions of such
contracts (all such assumed contracts
together with the contracts assumed by
Kindred as described in the first
sentence of this paragraph, the "Assumed
Facility Contracts"). The FI Operator
shall provide the indemnity set forth in
Section 3.05 of the OTA to Kindred with
respect to the Assumed Facility
Contracts.
Computer Systems On a date not earlier than the 90th day
following the Transfer Effective Date
and not later than the 120th day
following the Transfer Effective Date,
the applicable FI Operator shall remove
from the Facility all of its servers,
licensed software and computer hardware
located at its Facility that are
connected to its or any of its
affiliates' corporate accounting and
medical records network (the "Computer
Systems"). Notwithstanding the
foregoing, Kindred shall have the right
to use the Computer Systems as it deems
necessary to operate the Facility for a
period of ninety (90) days following the
Transfer Effective Date.
Following the Transfer Effective Date,
FI Operator shall cause SHM to cooperate
with Kindred in sharing any SHM files,
books,
3
records or information (whether paper or
electronic) relating to the Facility,
which Kindred reasonably requests.
Hired Employees and Employee The obligations of FI Operator and
Benefits Kindred with respect to hiring employees
shall be substantially similar to those
set forth in Section 4.01 of the OTA.
Kindred shall have no obligation to
assume any liabilities or obligations
with respect to employee benefits of
employees of FI Operator.
Cost Reports The FI Operator shall prepare and file
its final cost reports in accordance
with the requirements of Section
5.01(a).
Prorations Revenues and expenses in respect of the
Facility shall be prorated between
Kindred and the FI Operator as of
midnight of the calendar day immediately
prior to the Transfer Effective Date in
accordance with Section 5.02 of the OTA
(as if the FI Operator were Kindred
under the OTA and Kindred were the New
Operator under the OTA), provided, that
Kindred may apply any revenues it
receives with respect to a Facility to
any amounts due to Kindred under any of
the Subleases prior to payment of any
such amounts to FI Operator.
Transition Period Following the Transfer Effective Date,
at Kindred's option, FI Operator (a)
shall continue to operate the Facility
in accordance with the requirements of
the Sublease and shall not vacate the
Facility, and/or (b) shall cause SHM to
continue to manage the Facility, until a
date not later than ninety (90) days
following the Transfer Effective Date
(such period to be known as the
"Transition Period"). During the
Transition Period, if Kindred exercises
its option in (a) above, then FI
Operator shall continue to pay rent to
Kindred at the same rate as was in
effect under the Sublease prior to the
Transfer Effective Date (provided, that
SHM shall have no obligation to pay any
such rent to Kindred) and Kindred shall
reimburse FI
4
Operator for any actual operating
deficits, losses, and expenses of such
Facility incurred during the Transition
Period. During the Transition Period, if
Kindred exercises its option in (b)
above, then Kindred shall pay SHM a
management fee at the same rate as was
in effect under the management agreement
between FI Operator and SHM prior to the
Transfer Effective Date (the "Contract
Management Fee"), provided, that if the
Transfer Effective Date has occurred as
a result of FI Operator's Sublease
default or winding down of operations by
Subtenant at the Facility, then such
management fee shall equal the lesser of
(i) 3%, and (ii) the Contract Management
Fee.
5
EXHIBIT D
FORM OF XXXX OF SALE
In consideration of ($__________) and other good and valuable
-------------
consideration, the receipt and sufficiency of which are hereby acknowledged,
[name of Operator of such Facility], a Delaware limited liability company
("Seller"), does hereby grant, bargain, sell, convey and transfer
to ("New Operator"), all of its right, title and interest
----------------------
in and to, all and singular, the Transferred Assets, as defined in that certain
Operations Transfer Agreement dated as of , 200 between Kindred
---------------- -
Healthcare, Inc. and Senior Health Management, LLC (the "Transfer Agreement").
TO HAVE AND TO HOLD, all and singular, the Transferred Assets hereby sold,
assigned, transferred and conveyed to New Operator and its successors and
assigns, to and for its own use and benefit.
Seller hereby represents and warrants to New Operator that Seller is the
owner of the Transferred Assets, that Seller has full right, power and authority
to sell the Transferred Assets and to make this Xxxx of Sale, and that the
Transferred Assets are free and clear of all liens and encumbrances. With the
exception of the representations and warranties set forth in the immediately
preceding sentence, the Transferred Assets are transferred in "AS IS, WHERE IS"
condition, WITH ALL FAULTS, and without any representation or warranty of any
kind.
[OPERATOR]
By:
---------------------------------
Its:
---------------------------------
Dated: , 200
---------- --
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement"), is made as of the
30th day of June, 2003, between Kindred Healthcare Operating, Inc., a Delaware
corporation, on behalf of itself and its subsidiaries (collectively, "Kindred"),
and [name of New Operator], a Florida limited liability company (the "New
Operator"), the sole member of which is Florida Institute for Long Term Care,
LLC, a Delaware limited liability company ("Florida Institute"), the sole member
of which is Sun Coast Nursing Centers, Inc., a Delaware corporation ("Sun
Coast").
W I T N E S S E T H
WHEREAS, pursuant to that certain Operations Transfer Agreement (the
"Operations Transfer Agreement") dated June 18, 2003, Kindred agreed to assign,
and the New Operators agreed to assume certain operating contracts relating to
Kindred Healthcare, Inc.'s 18 skilled nursing centers located in the state of
Florida (the "Facilities");
WHEREAS, the respective boards of directors or other management bodies
of each of the parties hereto deem it advisable and in the best interest of each
entity and its respective shareholders or members to consummate the transaction
to transfer the operations of the Facilities as contemplated hereby subject to
the terms and conditions set forth herein (the "Transaction");
WHEREAS, in furtherance of the Transaction, Kindred desires to assign
the operating contracts listed on Schedule 1 attached hereto (the "Assumed
Facility Contracts") relating to [name of Facility] (the "Facility") to the New
Operator and the New Operator desires to assume such contracts on the terms and
conditions hereinafter set forth;
WHEREAS, in furtherance of the Transaction, Kindred desires to assign
certain liabilities and obligations relating to the employees of the Facility to
the New Operator and the New Operator desires to assume such liabilities and
obligations on the terms and conditions hereinafter set forth; and
WHEREAS, this Agreement is one of the Assignment and Assumption
Agreements contemplated in the aforesaid Operations Transfer Agreement.
NOW, THEREFORE, in consideration of the agreement set forth herein and
for other good and valuable consideration, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Agreement" has the meaning set forth in the preamble.
"Assumed Facility Contracts" has the meaning set forth in the
recitals.
"Effective Date" means the date first above written.
"Facility" has the meaning set forth in the recitals.
"Facilities" has the meaning set forth in the recitals.
"Hired Employees" means the employees of each Operator who, as of the
Effective Date, are employees of the Facility that are (i) actively working at
the Facility, (ii) are on leave of absence pursuant to Kindred's Family and
Medical Leave of Absence Policy or due to a work-related injury or illness, when
and only when they return from such leave, that elect to accept employment with
the New Operator of the Facility as provided in Section 4.01 of the Operations
Transfer Agreement.
"Kindred" has the meaning set forth in the preamble.
["Kindred East" has the meaning set forth in Section 3 hereof. /
"Kindred South" has the meaning set forth in Section 3 hereof.]
"New Operator" has the meaning set forth in the preamble.
"Operations Transfer Agreement" has the meaning set forth in the
recitals.
["Sublease Agreement" means the sublease agreement, dated as of the
date hereof, between Kindred as sublandlord and the New Operator as subtenant of
the Facility.]/1/
"Terminated Facility Contracts" has the meaning set forth in paragraph
2 below.
"Transaction" has the meaning set forth in the recitals.
2. Assignment and Assumption. Effective as of the Effective Date,
Kindred does hereby assign, and the New Operator does hereby assume and agree to
be bound by all of the terms and conditions of the Assumed Facility Contracts
listed on Schedule 1 attached hereto, without recourse, warranty or
representation, except as otherwise set forth in the Operations Transfer
Agreement. Nothing herein shall be construed as imposing any liability on the
New Operator with respect to any obligations under (A) the Assumed Facility
Contracts which relate to the period prior to the Effective Date even if the
same do not arise until after the Effective Date, it being specifically
understood and agreed that the New Operator's liability shall be limited to its
acts and omissions thereunder from and after the Effective Date or (B) any
Operating Contracts which are not Assumed Operating Contacts (the "Terminated
Facility Contracts") and any other contracts or agreements of Kindred.
[3. Operations Transfer. The parties hereby agree that, in the event
of (a) a default under the terms of the [Sublease Agreement]/2/ to which
[Kindred Nursing Centers South, L.L.C. ("Kindred South")/Kindred Nursing
Centers East, L.L.C. ("Kindred East")] and the New
----------
/1/ For the Fairhaven Facility, the agreement will be revised to refer to the
Lease Agreement.
/2/ For the Fairhaven Facility, the provision will be revised to refer to the
Lease Agreement.
2
Operator are parties, (b) the expiration or earlier termination of such
[Sublease Agreement] or (c) the commencement of winding down of operations at
the Facility, Kindred or [Kindred South / Kindred East] may elect to require the
New Operator to reassign the Assumed Facility Contracts to Kindred or its
assignee in the manner set forth in Exhibit G to the Sublease Agreement.]/3/
4. Employee Benefits. Effective as of the Effective Date, Kindred does
hereby assign and Florida Institute and the New Operator shall assume and be
responsible for, without recourse, warranty or representation, except as
otherwise set forth in the Operations Transfer Agreement, (a) all liabilities or
obligations relating to Hired Employees from and after the Effective Date with
respect to such Facility, and Florida Institute and the New Operator acknowledge
that Kindred shall have no obligation or responsibility for any such liabilities
or obligations and (b) all liability with respect to paid time off, sick leave
and vacation accrued, earned and unused as of the Effective Date with respect to
such Facility for Hired Employees.
5. Miscellaneous.
a. Interpretive Principles. Whenever used in this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, any noun
or pronoun shall be deemed to include the plural as well as the singular and to
cover all genders. The name assigned this Agreement and the Section captions
used herein are for convenience of reference only and shall not be construed to
affect the meaning, construction or effect hereof. Unless otherwise specified,
the terms "hereof," "herein" and similar terms refer to this Agreement as a
whole (including the Exhibits and Schedules hereto), and references herein to
Articles or Sections refer to Articles or Sections of this Agreement. Any
capitalized term used and not otherwise defined herein shall have the definition
assigned to such term in the Operations Transfer Agreement.
b. Amendment; Waiver. No provision of this Agreement may be amended,
modified or supplemented in whole or in part at any time, except by an agreement
in writing among the parties hereto executed in the same manner as this
Agreement. No failure on the part of any party to exercise, and no delay in
exercising, any right shall operate as waiver thereof, nor shall any single or
partial exercise by any party of any right preclude any other or future exercise
thereof or the exercise of any other right. No investigation by a party hereto
of any other party hereto prior to or after the date hereof shall stop or
prevent the exercise of any right hereunder or be deemed to be a waiver of any
such right.
c. Assignment. Except as otherwise provided herein, neither this
Agreement nor the rights, duties or obligations arising hereunder shall be
assignable or delegable by any party hereto without the express prior written
consent of the other parties hereto.
d. Third Party Beneficiaries. The parties hereto do not intend that
any third party shall have any rights under this Agreement.
----------
/3/ In the event that the purchase and the operations transfer transactions
close simultaneously, this paragraph will be deleted in all assignment and
assumption agreements other than the one relating to the Fairhaven
Facility.
3
e. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
f. Governing Law. This Agreement shall be governed in accordance with
the laws of the State of Florida applicable to contracts made and to be
performed in that State without reference to its conflict of laws rules. The
parties hereto agree that the appropriate and exclusive forum for any disputes
arising out of this Agreement shall be any U.S. District Court or any state
court located in Florida, and, the parties hereto irrevocably consent to the
exclusive jurisdiction of such courts, and agree to comply with all requirements
necessary to give such courts jurisdiction. The parties hereto further agree
that the parties will not bring suit with respect to any disputes arising out of
this Agreement except as expressly set forth below for the execution or
enforcement of judgment, in any jurisdiction other than the above specified
courts. Each of the parties hereto irrevocably consents to the service of
process in any action or proceeding hereunder by the mailing of copies thereof
by registered or certified airmail, postage prepaid, to the address specified in
Section 11.01(a) of the Operations Transfer Agreement. The foregoing shall not
limit the rights of any party hereto to serve process in any other manner
permitted by law or to obtain execution of judgment in any other jurisdiction.
The parties further agree, to the extent permitted by law, that final and
non-appealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the fact
and the amount of indebtedness. The parties agree to waive any and all rights
that they may have to a jury trial with respect to disputes arising out of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
KINDRED HEALTHCARE OPERATING,
INC.
By:
-------------------------
Name:
Title:
[NEW OPERATOR]
By:
-------------------------
Name:
Title:
4
EXHIBIT F
FORM OF ANCILLARY SERVICE AGREEMENTS
PHARMACEUTICAL SERVICES AGREEMENT
THIS PHARMACEUTICAL SERVICES AGREEMENT (the "Agreement") is made
effective as of the day of , by and between Kindred
--- ----------- ----
Hospitals East, L.L.C. d/b/a Kindred Pharmacy Services ("Pharmacy"), located at
0000 Xxxxxxxxxxxxx Xxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 337164801 and Fl-The Oaks,
LLC d/b/a The Oaks at Avon ("Health Care Facility").
RECITALS:
A. Health Care Facility is engaged in the business of operating a skilled
nursing facility located at 0000 X.X. Xxx 00 X, Xxxx Xxxx, XX 00000.
B. Pharmacy is a duly registered and licensed pharmacy engaged in
compounding and dispensing physician-ordered prescriptions including, but not
limited to, prescription drugs, over-the-counter drugs, enteral and parenteral
nutrition, hydration, intravenous antibiotics and pain management therapy and
related services (the "Pharmaceutical Services") and providing consulting
pharmacist services to skilled nursing facilities.
C. Health Care Facility desires that Pharmacy provide certain
pharmaceutical services and Pharmacy desires to provide those certain services
to Health Care Facility's patients on the terms set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE the parties agree as follows:
1. Purpose of Agreement. Health Care Facility has requested that Pharmacy
provide Pharmaceutical Services for patients of Health Care Facility, and
Pharmacy has agreed to provide such services.
2. Duties and Obligations of Pharmacy.
A. Services. Pharmacy shall provide to patients of Health Care
Facility the pharmaceutical services ("Services") described on Addendum A upon
Pharmacy's receipt of the written order of an attending physician given in
accordance with accepted professional practices.
B. Equipment. Equipment necessary to provide the Services shall be
provided by Pharmacy pursuant to the provisions in Addendum A. Any and all
equipment provided by Pharmacy in order to deliver the services shall remain the
property of Pharmacy at all times.
Page 1 of 19 Friday, April 18, 2003
3. Duties and Obligations of Health Care Facility. Health Care Facility
shall comply with its duties and obligations as provided in Addendum A.
4. Compensation.
A. Fee Schedule. Health Care Facility shall pay Pharmacy the amounts
set forth on Schedules [A, B] to Addendum A for the Services rendered to Health
Care Facility's patients. During the term of this Agreement Shedules [A, B] and
Addendum A may be amended from time to time by Pharmacy and Health Care Facility
by dating and initialing (by authorized employees) the changes thereto. A Vice
President of Pharmacy shall be an authorized employee of Health Care Facility
for this purpose.
B. Billing & Payment. Pharmacy shall xxxx Health Care Facility monthly
for all services and supplies provided under this Agreement except for state and
county welfare programs which are directly billed by Pharmacy. The rates for
house supplies shall be shown on the attached Schedule A. Health Care Facility
shall remit payment in full for all prescription and nonprescription drugs and
supplies furnished by Pharmacy to Health Care Facility for all private, Medicare
and Veterans' Administration residents, all house supplies and all consulting
pharmacist services within 60 days of the day on which Pharmacy's invoices are
received by Health Care Facility. If Health Care Facility fails to make a
payment when due, Pharmacy may terminate this Agreement immediately without
prejudice to its claims for such payment or for other damages on account of the
breach of this Agreement and Pharmacy may seek such other remedies as may be
available at law or in equity. In addition, late payments shall bear interest
from the date an invoice is due until paid at the rate of one and one-half
percent (1 1/2%) per month. Health Care Facility shall identify and furnish to
Pharmacy on a timely basis, and in no case over (30) thirty days after service,
all necessary information for billing regarding those residents who are covered
by any and all state or county welfare programs. If Health Care Facility fails
to identify and furnish all necessary billing information within (30) thirty
days of service. Health Care Facility shall remit payment for all services
provided for which it failed to provide billing information on a timely basis.
Pharmacy shall prepare and submit directly invoices for all covered services for
welfare e.g., Medicaid, residents for whom a direct state or county vendor
billing process is applicable. Health Care Facility shall notify Pharmacy
promptly of any changes in payor status or source of reimbursement for each
resident.
At Health Care Facility's option; Pharmacy shall invoice the following payment
sources directly for Services rendered to Health Care Facility's residents
(please circle and initial selected payors):
Private Pay [X] Commercial Insurance and HMOs [X]
For those payment sources that Pharmacy agrees to invoice directly under this
section of the Agreement, Health Care Facility is not responsible for payment to
Pharmacy for Pharmaceutical Services provided to Health Care facility's
residents, except as otherwise provided herein. Notwithstanding the foregoing,
Health Care Facility shall be responsible for payment to Pharmacy for
Pharmaceutical Services provided to Health Care Facility's residents if a
resident or third-party payor refuses to pay Pharmacy as a result of the error
or omission of Health Care Facility or any of its agents or employees.
Page 2 of 19 Friday, April 18, 2003
5. Term. This Agreement shall be effective for the period beginning on
March 01, 2003, and shall continue for a term of 1 year (the "Term"), and
thereafter it shall be renewed automatically for successive periods of 1 year
unless notice of non-renewal is provided not less than 90 days days prior to the
end of a term. This Agreement may be terminated earlier if either party
materially breaches this Agreement. If either party is in breach, the
non-breaching party shall provide written notice to the breaching party advising
of the particular circumstances and details of said breach. Except for non
payment, the breaching party shall have 90 days from receipt of such notice of
breach to cure the breach. Notwithstanding the above, the non-breaching party
may terminate this Agreement immediately upon the occurrence of either of the
following events: (i) loss of licensure or Medicare or Medicaid ceitification by
the breaching party; or (ii) dissolution, reorganization or material change in
business of the reaching party. In addition to the right to terminate for cause
as set forth above. Pharmacy may terminate this Agreement immediately upon
delivery of written notice if Health Care Facility fails to make timely payment
for amounts due hereunder.
6. Additional Provisions.
A. Insurance. Each party shall maintain for itself on behalf of each
of its employees providing services hereunder, general and professional
liability insurance. Each party shall upon request provide the other party with
a certificate of insurance evidencing such coverage and shall also provide 30
days' written notice to the other party prior to the cancellation of any such
policies.
B. Indemnification. Each party agrees to indemnify the other, their
affiliates and their respective officers, directors, employees and agents
against, and hold the same harmless from, all liability, losses, damages,
obligations, judgments, claims, causes of action and expenses associated
therewith (including settlement, judgments court costs and attorneys' fees)
resulting from or arising out of, directly or indirectly, any act or omission
including but not limited to, any neglect, reckless or intentional act or
failure to act) or any failure to perform any obligation undertaken in or any
covenant made under this Agreement. Upon notice, the indemnifying party shall
resist and defend at its own expense, and by counsel reasonably satisfactory to
the other, any such claim or action.
C. Independent Contractor Relationship. The parties agree that
Pharmacy is at all times acting and performing an independent contractor under
this Agreement. Nothing in this Agreement shall be construed as creating a
partnership, joint venture or employment arrangement between the parties.
D. Nondiscrimination. Neither party shall discriminate on the basis of
race, color, sex, age, religion, national origin, sexual orientation, pregnancy,
marital status, veteran status or handicap in providing services under this
Agreement or in the selection of employees or independent contractors.
E. Confidentiality. In order to facilitate the performance of this
Agreement, each party may deem it necessary to disclose to the other certain
proprietary and/or confidential information. Such information may include,
without limitation, patient information, personnel information, financial
information, market information, pricing information and service delivery
information. Health Care Facility agrees that all prices referenced in this
Agreement are to be kept confidential and will not be disclosed to another
person or entity except as required by law. Each party agrees to keep all such
information strictly confidential. No attorney-client, accountant-client or
other legal privilege will be deemed to have been waived by Pharmacy or Health
Care Facility by virtue of this Agreement.
Page 3 of 19 Friday, April 18, 2003
F. No Violation. Neither party shall be deemed to be in violation of
this Agreement if it is, or reasonably determines that it is, prevented from
performing any of its duties or obligations hereunder for any reason beyond such
party's control, including without limitation flood, storm, strikes, acts of God
or the public enemy, or statute, ordinance, regulation, rule or action of any
applicable governmental entity.
G. Access to Records. To the extent required by Section 1861(v)(1)(I)
of the Social Security Act and its implementing regulations, the parties agree
to retain all books, documents and records necessary to certify the nature and
extent of the costs of providing services under this Agreement.
H. Change in Law. In the event of any change in law regulations or
interpretations applicable to Pharmacy and the Services provided hereunder
("Change"), including but not limited to a Change in the Medicare or Medicaid
programs after July 1, 1998, such that either Pharmacy or Health Care Facility
cannot receive substantially the same benefits on account of the Change as is
anticipated to be, available to either under the terms of this Agreement given
the law in effect as of the date of this Agreement, the parties shall use all
reasonable efforts to negotiate in good faith necessary modifications to this
Agreement so as to allow each party to obtain, as nearly as possible given the
effect of the Change, the benefit which party was intended to receive under the
law in effect as of the date of this Agreement.
I. Notices; Consents. All notices consents or other communications
which either party is required or may desire to give to the other under this
Agreement shall be in writing and shall be given by personal delivery, by
deposit, postage prepaid, in the United States mail, certified or registered
mail, return receipt requested, by overnight delivery, or by fax addressed to
the parties at their respective address set forth below:
If to Pharmacy: Kindred Pharmacy Services
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxx
Xx. Xxxxxxxxxx, XX
337164801
Attn:Pharmacy Manager
Fax:000-000-0000
Kindred HealthCare, Inc
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: VP, Kindred
Pharmacy Services
Fax: 000-000-0000
cc: General Counsel
Fax: 000-000-0000
If to HealthCare Facility: The Oaks at Avon
0000 X.X. Xxx 00 X
Xxxx Xxxx, XX 00000
Attn:Administrator
Fax:000-000-0000
Page 4 of 19 Friday, April 18, 2003
Any notice sent in compliance with this section shall be deemed to have
been given upon the earlier of actual receipt or three days after mail deposit,
except, that notice of change of address shall not be deemed effective until
actual receipt by the intended recipient.
J. Licensure and Certification. Each party shall operate at all times
in compliance with federal, state and local laws, rules and regulations, and all
currently accepted methods and practices related to the provision of services
contemplated hereunder. Each party hereby certifies that it is licensed by the
State of Florida, and that it has all necessary approvals and certificates
required by the appropriate state and federal agencies in order to qualify for
and participate in the Medicaid and Medicare programs.
K. Governing Law; Severability. This Agreement shall be construed
under, and governed in accordance with, the laws of the Commonwealth of
Kentucky. The invalidity or unenforceability of any provision herein shall not
affect the validity or enforceability of any other provision.
L. Headings. The headings of this Agreement are inserted for
convenience only and are not to be considered in the interpretation of this
Agreement.
M. No Waiver. No waiver of a breach of any provision of this Agreement
shall be construed to be a waiver of any other breach of this Agreement, whether
of a similar or dissimilar nature:
N. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties hereto and supersedes all prior or contemporaneous
agreements, undertakings and understandings of the parties in connection with
the subject matter hereof. No representation warranty, inducement, promise,
understanding or condition which is not set forth in this Agreement has been
made or relied upon by Health Care Facility or Pharmacy. This Agreement may be
modified or amended only in writing duly signed by both parties.
O. Attorneys' Fees. If this Agreement is placed in the hands of an
attorney to enforce any of the terms or conditions in this Agreement the
prevailing party (whether litigation is filed or not) shall be entitled to
reasonable attorneys' fees and costs from the non-prevailing party.
P. Approval. This Agreement shall not be effective or legally binding
until it has been executed by a Vice President of Pharmacy.
Q. Assignability. Neither party may assign its rights or obligations
hereunder without the prior written approval of the other party; provided,
however, that such an assignment may be made without the other party's approval
to an entity which is related by virtue of a common parent corporation or which
is, directly or indirectly wholly owned or controlled by the same entity as the
assigning party.
R. No Construction Against Drafter. No inference in favor of, or
against, any party to this Agreement shall be drawn from the fact that such
party has drafted any portion of this Agreement.
S. Survival. Any provisions of this Agreement creating obligations
extending beyond the term of this Agreement shall survive the expiration or
termination of this Agreement, regardless of the reason for such termination.
Page 5 of 19 Friday, April 18, 2003
ADDENDUM A
1. PHARMACEUTICAL SERVICES
1.1 Description of Services
1. Pharmaceutical Services. Pharmacy is a duly registered and licensed
pharmacy engaged in compounding and dispensing physician-ordered prescriptions
including but not limited to, prescription drugs, over-the-counter drugs,
enteral and parenteral nutrition, hydration intravaneous antibiotics and pain
management therapy and related services (the "Pharmaceutical Services") and
providing consulting pharmacist services to skilled nursing facilities. Pharmacy
shall provide routine Pharmdceutical Services to Health Care Facility's
residents on an exclusive basis. (except as Provided below) five days per week,
Monday through Friday. Pharmacy shall have a licensed pharmacist available 24
hours each day, seven days per week, to supply the Pharmaceutical Services to
Health Care Facility's residents and respond to Health Care Facility's requests
for pharmacist consultation. Health Care Facility shall receive one delivery per
day and up to (10) ten emergency deliveries per month. Additional deliveries
shall be billed at $50.00 per delivery. The parties acknowledge that residents
of Health Care Facility may exercise freedom of choice to utilize the services
of any pharmacy of their choice, subject to the Health Care Facility's policies
and procedures.
2. Pharmacist Services. Pharmacy shall provide pharmacist services
under the general supervision of a qualified licensed pharmacist who shall be
responsible for developing, coordinating, supervising and reviewing all
Pharmaceutical Services delivered to residents in the Health Care Facility. Such
pharmacist services shall include:
A. Serving, as required on appropriate Health Care Facility
committees, including quality assurance committee and pharmaceutical services
committee.
B. Submitting, at least quarterly, a written report to Health
Care Facility's quality assurance committee on the status of Health Care
Facility's Pharmaceuticals Services and staff performance. Such report shall
include, but not limited to:
i. A review and assessment of compliance with any plan of
action previously adopted by the Health Care Facility's quality assurance
committee.
ii. A review and ongoing assessment of compliance with all
federal, state and local laws, regulations and rules and all of Health Care
Facility's pharmaceutically related policies and procedures including for
example, that drugs are dispensed and labeled in compliance with federal and
state laws, and provided on a prompt and timely basis.
Page 6 of 19 Friday, April 18, 2003
iii. Recommendations, if any, for improving the delivery of
Pharmaceutical Services with the goal of correcting or preventing instances of
noncompliance and enhancing the level of resident care in Health Care Facility.
C. Preparing and maintaining Health Care Facility's Pharmacy
Policy and Procedure Manual
D. Assisting Health Care Facility in the accounting, destruction
and reconciliation of unused controlled substances as prescribed by law, rule or
regulation.
E. Assisting Health Care Facility's administrative staff in
establishing and implementing policies and procedures for the safe and effective
distribution, control and use of drugs.
F. Participating as needed in Health Care Facility's inservice
training program for the licensed nursing staff at least once each calendar
year.
3. Licensure Compliance. Pharmacy shall obtain and maintain necessary
licenses and certifications from all appropriate state and federal regulatory
authorities including, but not limited to, the State Board of Pharmacy, the
federal Drug Enforcement, and any state controlled substance licensing agency
(if applicable).
4. Standards of Practice. Pharmacy shall develop implement and
maintain systems that meet or exceed applicable state and federal laws and
regulations, Medicare and Medicaid standards and requirements for the filling
and compounding of prescriptions and IV solutions, and any other standards or
requirements required by third-party payors or insurers.
5. Inventory Control. Pharmacy will maintain an adequate inventory of
supplies to fill Health Care Facility's prescription orders subject to
manufacturer's availability.
6. Delivery, of Orders. Upon receipt of prescription orders from
Health Care Facility, Pharmacy shall provide the requested Pharmaceutical
Services promptly.
7. House Supplies. Pharmacy shall provide house supplies, as needed,
to Health Care Facility.
8. Information. Pharmacy shall provide education materials,
operational manuals and such other information as Health Care Facility may
request in order to understand and be able to use Pharmacy's equipment and
instruments.
Page 7 of 19 Friday, April 18, 2003
1.2 HealthCare Facility Obligations
1. Prescriptions. Health Care Facility shall provide Pharmacy with
copies of the prescription and/or medication orders for each new order for
Pharmaceutical Services.
2. Controlled Substance Prescriptions. Health Care Facility shall
provide Pharmacy with the original, properly executed prescription for all
controlled substance prescriptions.
3. Delivery of Orders. Health Care Facility, in conjunction with
Pharmacy shall determine the most appropriate arrangement for the delivery of
all Pharmaceutical Services and choose a single drug distribution system for
all Health Care Facility residents.
4. Recordkeeping. Health Care Facility shall maintain all medical
records for residents receiving Pharmaceutical Services under this Agreement.
Health Care Facility shall secure written consent from its eligible patients
authorizing Pharmacy to access their medical records for the purpose of
Pharmacy's fulfilling its obligations under this Agreement. Pharmacy agrees to
abide by all federal, state and local laws, rules and regulations pertaining to
the confidentiality of such patient records.
5. Billing Information. Health Care Facility shall provide Pharmacy
promptly with proper billing information for Health Care Facility's residents
including admission date, source of payment information, Medicare and Medicaid
billing information and payment status change.
6. Drug Dispensing Equipment. Pharmacy shall provide Health Care
Facility with the drug distribution equipment described in detail or the
attached Medication Carts Addendum. All drug dispensing equipment provided by
Pharmacy including but not limited to medication carts and trays, shall remain
the property of Pharmacy. Pharmacy shall replace or repair the equipment as
necessary due to normal wear and tear, except that if repair or replacement of
this equipment is required due to its misuse by Health Care Facility personnel,
then Health Care Facility shall bear the sole expense of such repair or
replacement. If this Agreement is terminated or cancelled by Health Care
Facility for any reason before the expiration of its initial term, Health Care
Facility shall purchase this equipment from Pharmacy at its then depreciated
value using five year straight line depreciation.
7. FaxMachine for Drug Orders. Pharmacy shall furnish Health Care
Facility with one facsimile machine that Health Care Facility agrees to use
exclusively to transmit orders for Pharmaceutical Services to Pharmacy. If
Health Care Facility desires to use this facsimile machine for other purposes,
then Health Care Facility shall pay Pharmacy an additional fee of $7 per month
as rent for such use. Check here if Health Care Facility chooses this
option: . Such facsimile machine shall remain the property of Pharmacy and
----
shall be returned to Pharmacy promptly upon the termination or cancellation of
this Agreement. Pharmacy shall replace or repair the machine as necessary due to
normal wear and tear, except that if repair or replacement of this machine is
required due to its misuse by Health Care Facility personnel,
Page 8 of 19 Friday, April 18, 2003
then Health Care Facility shall bear the sole expense of such repair or
replacement. Pharmacy shall maintain a service contract on the machine for
necessary repairs and maintenance and will have the machines repaired or
replaced by the contract company when service is needed. If Health Care Facility
authorizes any work on this machine by a different repair service, Health Care
Facility shall be solely responsible for the total service xxxx, including labor
and parts. Health Care Facility also shall be responsible for repairs or
replacement of the machine if, on account of servicing by an unauthorized repair
service, Pharmacy's service maintenance contract is voided. Health Care Facility
shall be responsible for provision of fax paper.
8. Change in Ownership. Health Care Facility shall provide thirty (30)
days written notice of (i) the sale of all or substantially all of the assets
(70%) of Health Care Facility, or (ii) the transfer of more than fifty percent
of the outstanding shares of Health Care Facility (collectively, "Change of
Ownership"). Such notice shall include the name, address and phone number of the
purchaser, as well as any person implementing the Change of Ownership ("Escrow
Agent"). At the closing, Health Care Facility shall cause Escrow Agent to
disburse to Pharmacy all amounts owed for Services rendered through the date of
closing.
9. Notice of Adverse Actions. Health Care Facility shall immediately
notify Pharmacy of any legal, administrative or governmental surveys,
investigations reviews or proceedings initiated against it or any provider that
might affect Health Care Facility's ability to perform their duties and
obligations under this Agreement.
Page 9 of 19 Friday, April 18, 2003
SCHEDULE A
3. Fee For Service
Health Care Facility shall pay Pharmacy at the rates set forth below for
Pharmaceutical Services:
A. Fee for Service Pricing
Health Care Facility shall pay a fee for service rate based on AWP - 13.25% +
$4.73
IV products and supplies & OTC products will be billed at their own specific
rates
Health Care Facility shall pay to Pharmacy the Average Wholesale Price plus ten
percent (10%) for OTC products. Average Wholesale Price shall be defined as the
average wholesale price per Bergen Xxxxxxxx Corporation (or its successor) as
of the date of the billing.
B. Medical Records
Pharmacy shall provide medical records to Health Care Facility for a fee of
$2.50 per resident per month.
Page 10 of 19 Friday, April 18, 2003
ADDENDUM A
4. INFUSION SERVICES
4.1 Description of Services
1. Pharmacy shall provide routine Infusion Services to Health Care
Facility's residents on an exclusive basis (except as provided below). Pharmacy
shall have a licensed pharmacist available 24 hours each day, seven days per
week to supply the Infusion Services to Health Care Facility's residents. The
parties acknowledge that residents of Health Care Facility may exercise freedom
of choice to use the services of any pharmacy of their choice, subject to the
Health Care Facility's policies and procedures.
2. With Respect to IV and parental nutrition services offered within
Health Care Facility, Pharmacy will assist in the development, coordination and
imp1ementation of such services by providing.
A. IV classes for Health Care Facility RN and LVN staff, to a
maximum of 8 hours annually, scheduled by mutual agreement. There shall be an
additional charge for supplies;
B. Assist the facility in the development of policies, procedures
and protocols for IV and parenteral nutrition service, amended and updated as
necessary;
C. Assisting Health Care Facility's administrative staff in
establishing and implementing policies and procedures for the safe and effective
distribution and administration of IV therapies, and,
D. Participating as needed in Health Care Facility's inservice
training program for IV therapies for the licensed nursing staff as mutually
agreed to a maximum of 1 hour per month during months Health Care Facility has
residents receiving IV service. Other in service education provided at $100.00
per hour of trainer time. Minimum 2 hours charge.
3. Licensure Compliance. Pharmacy shall obtain and maintain necessary
licenses and certifications from all appropriate state and federal regulatory
authorities including, but not limited to, the State Board of Pharmacy the
federal Drug Enforcement, and any state controlled substance licensing agency
(if applicable).
Page 11 of 19 Friday, April 18, 2003
4. Standards of Practice. Pharmacy shall develop, implement and
maintain systems that meet or exceed applicable state and federal laws and
regulations and Medicare and Medicaid standards and requirements for the filling
and compounding of prescriptions and IV solutions, and any other standards or
requirements required by third-party payors or insurers.
5. Inventory Control. Pharmacy will maintain an adequate inventory of
supplies to fill Health Care Facility's prescriptions orders, subject to
manufacturer's availability.
6. Delivery of Orders. Upon receipt of prescription orders from Health
Care Facility, Pharmacy shall provide the requested Infusion Services promptly.
7. House Supplies. Pharmacy shall provide house supplies, as needed,
to Health Care Facility.
8. Information. Pharmacy shall provide education material, operations
manuals and such other information as Health Care Facility may request in order
to understand and be able to use Pharmacy's equipment and instruments.
4.2 Health Care Facility's Obligations.
1. Prescriptions. Health Care Facility shall provide Pharmacy with
copies of the prescription and/or medication orders for each new order for
Infusion Services.
2. Controlled Substance Prescriptions. Health Care Facility shall
provide Pharmacy with the original, properly executed prescription for all
controlled substance prescriptions.
3. Delivery of Orders. Health Care Facility shall determine, in
conjunction with Pharmacy, the most appropriate arrangement for the delivery of
al1 Infusion Services and choose a single infusion device for all Health Care
Facility residents.
4. Recordkeeping. Health Care Facility shall maintain all medical
records for residents receiving Infusion Services under this Agreement. Health
Care Facility shall secure written consent from its eligible patients
authorizing Pharmacy to access their medical records for the purpose of
Pharmacy's fulfilling its obligations under this Agreement. Pharmacy agrees to
abide by all federal, state and local laws, rules and regulations pertaining to
the confidentiality of such patient records.
Page 12 of 19 Friday, April 18, 2003
5. Billing Information. Health Care Facility shall provide Pharmacy
promptly with proper billing information for Health Care Facility's residents
including admission date, source of payment information, Medicare and Medicaid
billing information and payment status change.
6. Chance in Ownership. Health Care Facility shall provide thirty
(30) days written notice of (i) the sale of all or substantially all of the
assets (70%) of Health Care Facility, or (ii) the transfer of more than fifty
percent of the outstanding shares of Health Care Facility (collectively, "Change
of Ownership"). Such notice shall include the name, address and phone number of
the purchaser, as well as any person implementing the Change of Ownership
("Escrow Agent"). At the closing, Health, Care Facility shall cause Escrow Agent
to disburse to Pharmacy all amounts owed for Services rendered through the date
of closing.
7. Notice of Adverse Actions. Health Care Facility shall immediately
notify Pharmacy of any legal, administrative or governmental surveys,
investigations, reviews, or proceedings initiated against it or any provider
that might affect Health Care Facility's ability to perform their duties and
obligations under this Agreement.
Page 13 of 19 Friday, April 18, 2003
SCHEDULE B
5. INFUSION SERVICES
Health Care Facility shall pay Pharmacy at the rates set forth below for
Infusion Services:
THERAPY, PLASTICS AND SUPPLIES RELATING TO IV THERAPY
Pricing for all types of infusion therapy (antibiotic, antifungal, hydration,
TPN, and pain management) includes the following items in quantities
appropriate, per the Pharmacy IV therapy protocol:
. Infusion pump rental .
. Pump sets or administration sets with filter
Intravenous Medication Therapy
1 dose/day AWP* + $45.00/day
2 doses/day AWP* + $50.00/day
3 doses/day AWP* + $55.00/day
4 or more doses/day AWP* + $60.00/day
(*Average Wholesale Price of Drug and Diluent)
Hydration Therapy
1 liter/day $25.00/day
2 liters/day $30.00/day
3 or more liters/day $40.00/day
(*Average Wholesale Price of Drug and Diluent)
Pain Management Therapy
Continuous IV/SubQ infusion AWP* + $50.00/day
Page 14 of 19 Friday, April 18, 2003
Total Parenteral Nutrition (TPN) Therapy
1 liter/day $105.00/day
2 liters/day $115.00/day
3 liters/day $130.00/day
TPN per diem pricing includes the following components along with the standard
inclusions for all infusion therapy:
. Amino acid/Dextrose formulation including electrolytes, trace
elements, heparin, insulin, multivitamins, and lipids (daily).
MISC Therapy (Heparin, Dobutamine, Chemotherapy ETC.)
AWP* + $50.00/day
Additives for Any Therapy (Hydration, Non-Standard TPN, etc.)
These additives will be charges at AWP*
(*Average Wholesale Price of Drug and Diluent)
Page 15 of 19 Friday, April 18, 2003
ADDENDUM A
6. ENTERAL THERAPY SERVICES
6.1 Description of Services.
1. Upon receipt of an order from Health Care Facility, Pharmacy shall
provide Enteral Therapy Services to Health Care Facility's residents on an
exclusive basis (except as provided below). Pharmacy shall have a licensed
pharmacist available 24 hours each day, seven days a week, to supply the Enteral
Therapy Services to Health Care Facility's residents. The parties acknowledge
that residents of Health Care Facility may exercise freedom to use the services
of any pharmacy of their choice, subject to the Health Care Facility's policies
and procedures. Products used for patients eligible for Medicare Part B will be
billed using Pharmacy's Part B Provider Number. Pharmacy shall also provide bulk
Enteral Therapy Services necessary for Health Care Facility's house or dietary
supplies and xxxx for such services and products pursuant to rates stated in
Schedule [insert] to Addendum A, attached hereto and incorporated by reference
herein.
2. Licensure Compliance. Pharmacy shall obtain and maintain necessary
licenses and certifications from all appropriate state and federal regulatory
authorities including, but not limited to, the State Board of Pharmacy, the
Federal Drug Enforcement Administration and any state controlled substance
licensing agency (if applicable).
3. Equipment. Pharmacy shall provide and maintain enteral therapy
equipment and instruments as required by the Health Care Facility pursuant to
the rental rates described in Schedule C and assume the cost of maintenance and
replacement as a result of normal wear and tear. Health Care Facility will be
responsible for maintenance or replacement in cases of misuse or abuse by Health
Care Facility.
4. Delivery of Orders. Upon receipt of prescription orders from Health
Care Facility, Pharmacy shall arrange for prompt and regular delivery of Enteral
Therapy Services.
5. Information. Pharmacy shall provide educational materials,
operational manuals and such other information as Health Care Facility may
request in order to understand and be able to use Pharmacy's enteral therapy
equipment and instruments.
6.2 Health Care Facility's Obligations
Page 16 of 19 Friday, April 18, 2003
1. Orders. Health Care Facility shall provide Pharmacy with copies of
new orders for Enteral Services to be provided to residents.
2. Billing Information. Health Care Facility shall fax or transmit by
other legal methods, copies of all documentation necessary for Pharmacy to
dispense Enteral Services pursuant to this Agreement and to assist in billing,
including admission date, source of payment information, Medicaid and Medicare
billing information and payment status changes.
3. Recordkeeping. Health Care Facility shall maintain all medical
records for residents receiving Enteral Therapy Services under this Agreement,
including updating the enteral log with new orders, discharges and changes.
Health Care Facility shall secure written consent from its eligible patients
authorizing Pharmacy to access their medical records for the purpose of
Pharmacy's fulfilling its obligations under this Agreement. Pharmacy agrees to
abide by all federal, state and local laws, rules and regulations pertaining to
the confidentiality of such patient records.
4. Change in Ownership. Health Care Facility shall provide thirty (30)
days written notice of (i) the sale of all or substantially all of the assets
(70%) of Health Care Facility, or (ii) the transfer of more than fifty percent
of the outstanding shares of Health Care Facility (collectively, "Change of
Ownership"). Such notice shall include the name, address and phone number of the
purchaser, as well as any person implementing the Change of Ownership ("Escrow
Agent"). At the closing, Health Care Facility shall cause Escrow Agent to
disburse to Pharmacy all amounts owed for Services rendered through the date of
closing.
5. Notice of Adverse Actions. Health Care Facility shall immediately
notify Pharmacy of any legal, administrative or governmental surveys,
investigations, reviews, or proceeding initiated against it or any provider that
might affect Health Care Facility's ability to perform their duties and
obligations under this Agreement.
Page 17 of 19 Friday, April 18, 2003
SCHEDULE C
7. ENTERAL SERVICES
Enteral Services:
Based on the Xxxx line of products: AWP of Formula
Includes pump, pole, bags and formula.
Spikes, syringes, NG and G tubes are charged separately.
Medicare B Residents
The pharmacy can xxxx on the Pharmacy Provider Number.
Page 18 of 19 Friday, April 18, 2003
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have executed this Agreement as of the date first above written.
Kindred Hospitals East, L.L.C. FI- The Oaks, LLC
d/b/a Kindred Pharmacy Services d/b/a The Oaks at Avon
By: By:
---------------------------------- -----------------------------------
Name: Xxxx XxXxxxxxxx Name: Xxxxx Xxxxxxxxx
Title: President Title: CEO
Date: Date:
-------------------------------- ---------------------------------
("Pharmacy") ("Facility")
Page 19 of 19 Friday, April 18, 2003
THERAPY SERVICES AGREEMENT
THIS THERAPY SERVICES AGREEMENT (the "Agreement") is made as of the
----
day of , 2003, by and between Senior Health Management, L.L.C.
-----------
("Health Care Facility") and Kindred Rehab Services, Inc. ("Kindred").
RECITALS
X. Xxxxxxx provides certain rehabilitation therapy services to residents of
skilled nursing facilities. Health Care Facility is a licensed health care
facility with Medicare-certified beds which provides skilled nursing services to
residents. Health Care Facility's Medicare provider number is , its
--------
Medicare cost report fiscal year end is , and its Fiscal Intermediary is
-------
.
--------
B. Health Care Facility desires that Kindred provide certain rehabilitation
therapy services, as described more particularly in Addendum A attached hereto
and incorporated by reference, to residents of Health Care Facility, and Kindred
desires to provide those certain rehabilitation therapy services to Health Care
Facility's residents on the terms set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
1. Purpose of Agreement. Health Care Facility has requested that Kindred
provide rehabilitation services including physical therapy, occupational therapy
and speech therapy services to residents of Health Care Facility, and Kindred
has agreed to provide such services.
2. Duties and Obligations of Kindred.
a. Services. Kindred shall provide to residents of Health Care
Facility the rehabilitation therapy services ("Services") described on Addendum
A upon Kindred's receipt of (i) the written order of an attending physician
given in accordance with accepted professional practices; and (ii) specific
authorization to treat the resident from a representative of Health Care
Facility.
b. Equipment. Kindred will provide any necessary office equipment and
supplies. All equipment so provided shall remain the exclusive property of
Kindred at all times under this Agreement.
1
c. Staffing. Kindred shall provide Health Care Facility with
sufficient personnel to deliver the Services under this Agreement. Kindred shall
employ credentialed qualified personnel to provide all such Services to eligible
residents of Health Care Facility.
d. Record Maintenance. Kindred shall maintain written documentation of
the services provided to Health Care Facility's residents in accordance with the
requirements of applicable federal, state and local laws and regulations.
3. Duties and Obligations of Health Care Facility.
a. Space and Equipment. Health Care Facility shall provide all
equipment and supplies necessary for the provision of rehabilitation services
pursuant to the provisions in Addendum A. Health Care Facility shall (i) set
aside designated areas adequate for Kindred's provision of the Services
(including, but not limited to, adequate storage space for equipment and
supplies) and (ii) maintain such designated areas in accordance with applicable
federal, state and local laws, rules and regulations. Without limiting the
foregoing, Health Care Facility shall supply the necessary utilities and support
services (such as laundry and housekeeping) reasonably necessary to allow
Kindred to provide the Services at Health Care Facility. Kindred will use such
space, utilities and support services solely for the purpose of fulfilling its
duties under this Agreement.
b. Record Maintenance. Health Care Facility shall (i) have primary
responsibility for maintaining all resident records, and (ii) make available to
Kindred for review the individual resident treatment records necessary for the
proper evaluation, screening and treatment of Health Care Facility's residents.
Health Care Facility shall. secure written consent from its eligible residents
authorizing Kindred to access their medical records for the purpose of Kindred's
fulfilling its obligations under this Agreement. Kindred agrees to abide by all
federal, state and local laws, rules and regulations pertaining to the
confidentiality of such resident records.
c. Minimum Data Set Completion. Health Care Facility shall have
primary responsibility for performing and completing the Minimum Data Set (MDS)
assessment for all residents.
d. Physician Orders for Rehabilitation Therapy Services. Health Care
Facility shall be responsible for obtaining all required written orders for
provision of the Services to eligible residents from their attending physicians
in accordance with accepted professional practices.
e. Billing and Submission of Cost Reports. Except as otherwise set
forth in this Agreement, Health Care Facility shall be responsible for, and
incur the costs associated with,
2
preparation and submission of all bills, cost reports and other claims for
reimbursement to residents and any government programs and other third-party
payors.
f. Change in Ownership. Health Care Facility shall provide thirty (30)
days' written notice of (i) the sale of all or substantially all of the assets
(70%) of Health Care Facility, or (ii) the transfer of more than fifty percent
of the outstanding shares of Health Care Facility (collectively, "Change of
Ownership"). Such notice shall include the name, address and phone number of the
purchaser, as well as any person implementing the Change of Ownership ("Escrow
Agent"). At the closing, Health Care Facility shall cause Escrow Agent to
disburse to Kindred all amounts owed for Services rendered through the date of
closing.
g. Notice of Adverse Actions. Health Care Facility shall immediately
notify Kindred of any legal, administrative or governmental surveys,
investigations, reviews, or proceedings initiated against it or any provider
that might affect Health Care Facility's ability to perform their duties and
obligations under this Agreement.
4. Compensation.
a. Fee Schedule. Health Care Facility shall pay Kindred the amounts
set forth on Schedules A, B, and C to Addendum A for the Services rendered to
Health Care Facility's residents. During the term of this Agreement, Schedules
A, B, and C, and Addendum A may be amended from time to time by Kindred and
Health Care Facility by dating and initialing (by authorized employees) the
changes thereto. Both the National Director of Rehabilitation Services and an
authorized agent of Health Care Facility shall approve these Schedules and any
changes thereto.
b. Invoices. Kindred shall submit an invoice to Health Care Facility
within three business days following the close of the monthly billing period.
Health Care Facility shall remit payment in full as shown on each invoice within
60 days after date of the invoice. Except as otherwise agreed to by the parties,
Kindred shall not xxxx residents or the government or other third-party payors
directly unless required to do so by applicable federal, state or local law.
c. Late Payments. If Health Care Facility fails to make any payment
when due, Kindred may terminate this Agreement immediately without prejudice to
its claims for such payment or for other damages on account of the breach of
this Agreement, and Kindred may seek such other remedies as may be available at
law or in equity. In addition, late payments shall bear interest from the date
an invoice is due until paid at the rate of one and one-half percent (1 1/2 %)
per month.
d. Denial of Payment. If Medicare or its agent notifies Health Care
Facility that due to inaccurate or incomplete information that is necessary to
complete the MDS Assessment and is required to be provided by Kindred with
respect to any Service Medicare: (i) reclassifies a resident to a lower RUGS
category, or (ii) issues a denial or disallowance on the grounds that
3
such Services were not medically necessary, Health Care Facility will be
entitled to offset against Kindred's next invoice to Health Care Facility an
amount equal to the amount previously paid to, or billed by, Kindred for such
unreimbursed Service for that specific resident.
x. Xxxxxxx Notification of Denial. Health Care Facility shall provide
written notice to Kindred of the receipt of any such RUGS reclassification,
denial or disallowance notice or any medical necessity denial or disallowance
from Medicare or its agent ("Notice") related to Kindred's Services within 10
days of receipt. If Health Care Facility fails to notify Kindred as required by
this section, Health Care Facility shall remain responsible for compensating
Kindred for any Services rendered which are the subject of such Notice and shall
have no right to offset such unreimbursed amounts as provided in Section 4(d).
f. Appeal Rights. Upon Kindred's request to the extent allowed by law,
Health Care Facility shall timely appeal any Notice received in connection with
Kindred's Services. The parties agree to cooperate in preparing such appeal. If
the Notice resulted from the error or omission of Kindred, Health Care Facility
shall appoint Kindred to act as its agent for purposes of conducting the appeal
and Kindred shall be responsible for preparing such appeal and incurring the
costs associated with the appeal. Health Care Facility shall grant to any fiscal
agency involved the right to discuss the status of the claim with Kindred.
g. No Right of Offset. Health Care Facility shall have no right of
offset for any denial, disallowance or reduction in reimbursement caused by or
resulting from the failure of Health Care Facility, its agents or employees to
(i) comply with any provisions of this Agreement; (ii) correctly xxxx Medicare
or the appropriate fiscal intermediary or other third-party payor; (iii)
correctly complete and file the resident's MDS assessment, including the
timeliness of the assessment; or (iv) correctly determine or communicate to
Kindred a resident's eligibility for coverage or change in coverage status.
Health Care Facility shall have no right of offset for any amounts which
Medicare refuses to reimburse to Health Care Facility for a Service except as
otherwise provided herein.
5. Term. This Agreement shall be effective for the period beginning on
----
2003, and shall continue for a term of 1 year (the "Term") and thereafter it
shall be renewed automatically for successive periods of 1 year. This Agreement
may be terminated earlier if either party materially breaches this Agreement.
After the expiration of the first one year term, either party may terminate this
Agreement on thirty (30) days written notice to the other, pursuant to paragraph
7(i) of this Agreement.
6. Non-Solicitation of Personnel. During the term of this Agreement and for
a one-year period thereafter (commencing with the date of expiration or
termination of this Agreement), neither party shall directly or indirectly
solicit the employees of the other party or "employ" (directly or indirectly, as
an employee, independent contractor or otherwise) any such person or persons
without the prior written consent of the other party; provided, however, that
4
this provision shall apply only to those employees who have provided services
directly to Health Care Facility at any time during the term of this Agreement.
"Indirectly employ" shall include, but not be limited to, Health Care Facility
contracting with, or receiving therapy services from, another provider who
employs or contracts with any person who was employed by Kindred and provided
services to Health Care Facility within the previous ninety (90) days. The
parties agree that damages may not adequately compensate the non-breaching party
for a breach of this paragraph and that, in addition thereto, the non-breaching
party shall be entitled to injunctive relief and specific performance in
addition to all other remedies. The parties hereby agree that the damages which
will be incurred by virtue of the breach of this Agreement by either party shall
be an amount equal to 75% of any solicited employee's annual base salary then in
effect.
7. Additional Provisions
a. Insurance. Each party shall maintain for itself and on behalf of
each of its employees providing services hereunder, general and professional
liability insurance with a limit of not less than $1,000,000 per occurrence and
$3,000,000 in the aggregate. Each party shall upon request provide the other
party with a certificate of insurance evidencing such coverage and shall also
provide 30 days' written notice to the other party prior to the cancellation of
any such policies. This provision shall survive, and remain in full force and
effect, after the termination of this Agreement.
b. Indemnification. Each party agrees to indemnify the other, their
affiliates and their respective officers, directors, employees and agents
against, and hold the same harmless from, all liability, losses, damages,
obligations, judgments, claims, causes of action and expenses associated
therewith (including settlements, judgments, court costs and attorneys' fees)
resulting from or arising out of, directly or indirectly, any act or omission
(including, but not limited to, any neglect, reckless or intentional act or
failure to act) by it's officers, directors, employees and agents or any failure
by it's officers, directors, employees and agents to perform any obligation
undertaken in or any covenant made under this Agreement. Upon notice, each party
shall resist and defend at its own expense, and by counsel reasonably
satisfactory to the other, any such claim or action.
c. Independent Contractor Relationship. The parties agree that each is
at all times acting and performing as an independent contractor under this
Agreement. Nothing in this Agreement shall be construed as creating a
partnership, joint venture or employment arrangement between the parties.
d. Nondiscrimination. Neither party shall discriminate on the basis of
race, color, sex, age, religion, national origin, sexual orientation, pregnancy,
marital status, veteran status or handicap in providing services under this
Agreement or in the selection of employees or independent contractors.
5
e. Confidentiality. In order to facilitate the performance of this
Agreement, each party may deem it necessary to disclose to the other certain
proprietary and/or confidential information. Such information may include,
without limitation, resident information, personnel information, financial
information, market information, pricing information and service delivery
information. Health Care Facility agrees that all prices referenced in this
Agreement are to be kept confidential and will not be disclosed to another
person or entity except as required by law. Each party agrees to keep all such
information strictly confidential. No attorney-client, accountant-client or
other legal privilege will be deemed to have been waived by Kindred or Health
Care Facility by virtue of this Agreement.
f. No Violation. Neither party shall be deemed to be in violation of
this Agreement if it is, or reasonably determines that it is, prevented from
performing any of its duties or obligations hereunder for any reason beyond such
party's control, including without limitation flood, storm, strikes, acts of God
or the public enemy, or statute, ordinance, regulation, rule or action of any
applicable governmental entity.
g. Access to Records. To the extent required by Section 1861(v)(1)(I)
of the Social Security Act and its implementing regulations, the parties agree
to retain all books, documents and records necessary to certify the nature and
extent of the costs of providing services under this Agreement.
h. Change in Law. In the event of any change in law, regulations or
interpretations applicable to Kindred and the Services provided hereunder
("Change"), including but not limited to a Change in the Medicare or Medicaid
programs after July 1, 1998, such that either Kindred or Health Care Facility
cannot receive substantially the same benefits on account of the Change as is
anticipated to be available to either under the terms of this Agreement given
the law in effect as of the date of this Agreement, the parties shall use all
reasonable efforts to negotiate in good faith necessary modifications to this
Agreement so as to allow each party to obtain, as nearly as possible given the
effect of the Change, the benefit which each party was intended to receive under
the law in effect as of the date of this Agreement.
i. Notices; Consents. All notices, consents or other communications
which either party is required or may desire to give to the other under this
Agreement shall be in writing and shall be given by personal delivery, by
deposit, postage prepaid, in the United States mail, certified or registered
mail, return receipt requested, by overnight delivery, or by fax, addressed to
the parties at their respective address set forth below:
If to Kindred: National Director of Rehabilitation Services
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
and: Kindred Rehab Services, Inc.
6
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Director of Finance
Fax: (000) 000-0000
cc: General Counsel
Fax: (000) 000-0000
cc: National Director of Client Services
Fax: (000) 000-0000
If to Health Care Facility: Senior Health Management
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxx
Fax:
Any notice sent in compliance with this section shall be deemed to have been
given upon the earlier of actual receipt or three days after mail deposit,
except that notice of change of address shall not be deemed effective until
actual receipt by the intended recipient.
j. Licensure and Certification. Each party shall operate at all times
in compliance with federal, state and local laws, rules and regulations, the
standards of JCAHO (if applicable), and all currently accepted methods and
practices related to the provision of services contemplated hereunder. Each
party hereby certifies that it is licensed by the State or Commonwealth of
Florida, and that it has all necessary approvals and certificates required by
the appropriate state and federal agencies in order to qualify for and
participate in the Medicaid and Medicare programs.
k. Governing Law; Severability. This Agreement shall be construed
under, and governed in accordance with, the laws of the State or Commonwealth of
Florida. The invalidity or unenforceability of any provision herein shall not
affect the validity or enforceability of any other provision.
1. Headings. The headings of this Agreement are inserted for
convenience only and are not to be considered in the interpretation of this
Agreement.
m. No Waiver. No waiver of a breach of any provision of this Agreement
shall be construed to be a waiver of any other breach of this Agreement, whether
of a similar or dissimilar nature.
n. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties hereto and supersedes all prior or contemporaneous
agreements,
7
undertakings and understandings of the parties in connection with the subject
matter hereof. No representation, warranty, inducement, promise, understanding
or condition which is not set forth in this Agreement has been made or relied
upon by Health Care Facility or Kindred. This Agreement may be modified or
amended only in writing duly signed by both parties.
o. Attorneys' Fees. If this Agreement is placed in the hands of an
attorney to enforce any of the terms or conditions in this Agreement, the
prevailing party (whether litigation is filed or not) shall be entitled to
reasonable attorneys' fees and costs from the non-prevailing party.
p. Approval. This Agreement shall not be effective or legally binding
until it has been executed by a Vice President of Kindred Healthcare, Inc.
q. Assignability. Neither party may assign its rights or obligations
hereunder without the prior written approval of the other party; provided,
however, that such an assignment may be made without the other party's approval
to an entity which is related by virtue of a common parent corporation or which
is, directly or indirectly, wholly owned or controlled by the same entity as the
assigning party.
r. No Construction Against Drafter. No inference in favor of, or
against, any party to this Agreement shall be drawn from the fact that such
party has drafted any portion of this Agreement.
8
IN WITNESS WHEREOF, the parties by their duly authorized representatives
have executed this Agreement as of the date first above written.
KINDRED REHAB SERVICES, INC. SENIOR HEALTH MANAGEMENT, L.L.C.
By: By:
---------------------------------- ---------------------------------
Title: Title:
------------------------------- ------------------------------
Date: Date:
-------------------------------- -------------------------------
("Kindred") ("Health Care Facility")
9
ADDENDUM A
[to Therapy Services Agreement for Kindred Rehab Services, Inc.]
1.0 REHABILITATION SERVICES
1.1 Description of Services. Kindred shall provide the rehabilitation services
described herein in accordance with the terms and conditions of this Agreement.
Such services shall be provided to individuals located at the address for Health
Care Facility set forth in the first recital paragraph of this Agreement (the
"Building").
1.1.1 Physical Therapy Services
Kindred shall provide such physical therapists and/or physical therapy
assistants and/or physical therapy aides as shall be required to provide
physical therapy services to the Health Care Facility which may include, without
limitation, the following:
(i) All physical therapy for resident treatment as prescribed by a
physician and related consultation upon request by a physician.
(ii) A registered physical therapist's supervision of staff training
for physical therapy care and treatment.
(iii) Review of Health Care Facility's personnel and resident care
policies with respect to the Services and the implementation of such changes or
amendments to those policies as are necessary to conform the Health Care
Facility's policies to all applicable state and federal regulations.
(iv) All other matters as necessary to provide physical therapy
services to the Health Care Facility in accordance with this Agreement.
1.1.2 Occupational Therapy Services
Kindred shall provide such registered occupational therapists and/or
occupational therapy assistants and/or occupational therapy aides as shall be
required to provide occupational therapy services to the Health Care Facility,
which may include, without limitation, the following:
(i) All occupational therapy for resident treatment as prescribed by a
physician and related consultation upon request by a physician.
-------- ----
Initials Date
-------- ----
Initials Date
10
EXHIBIT G
FORM OF MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is dated as of the 1st day of June
2003, by and between [New Operator] ("Owner'), a limited liability company
organized and existing under laws of the State of Florida, and Senior Health
Management-Gold Coast, LLC ("Manager"), a limited liability company organized
and existing under the laws of the State of Florida.
WITNESSETH THAT:
WHEREAS, Owner is the owner of the lessee of nursing facility described on
Appendix "A" hereto together with the equipment, furnishings and other tangible
personal property used in connection with the facility (the "Facility");
WHEREAS, Owner wishes to retain the services of Manager, as manager of the
Facility, to meet Owner's obligations;
(i) as lessee under that certain Lease Agreement among Owner and
Florida Institute for Long Term Care, LLC dated as of ,
------------------------
2003 (the "Lease Agreement");
(ii) as a party to any easement or other agreements which now or
hereafter affect the Facility;
(iii) as licensee or permittee under any licenses or permits,
governmental or otherwise, pursuant to which either the Facility is or may be
operated;
(iv) otherwise as owner of the Facility (all of the documents
evidencing the functions referred to in paragraphs (i) - (iii) above, together
with all amendments and modifications now or hereafter made thereto, all of
which have been delivered to Manager, are hereinafter collectively called the
"Basic Documents"); and
-1-
WHEREAS, Manager is willing to perform such services with regard to the
management, operation, maintenance, marketing, and servicing of the Facility
(the "Management Services"), upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the full and
faithful performance of all the terms, conditions, and obligations herein
contained, and intending to be legally bound hereby, Owner and Manager agree as
follows:
ARTICLE I
APPOINTMENT
1.1 Appointment. Owner hereby appoints and engages Manager, exclusively, to
provide, supervise, and direct the enumerated Services herein for the operation
of the Facility, subject to the terms and conditions set forth in this
Agreement, and Manager hereby accepts such appointment and engagement on the
terms and conditions set forth in this Agreement, provided that Manager shall
have no right or authority, express or implied, to commit or otherwise obligate
Owner in any manner whatsoever except to the extent specifically provided in
this Agreement.
1.2 Control Retained by Owner. Owner shall at all times retain and exercise
control over the assets and operations to the extent not delegated herein of the
Facility, and Manager shall perform the functions described in this Agreement to
be performed by it in accordance with policies, directives and operating
agreement in effect and recommended changes adopted by Owner. It is expressly
agreed by and between Owner and Manager that Manager is at all times acting and
performing as an independent contractor. Nothing contained in this Agreement
shall constitute or be construed to be or create a partnership, joint venture,
employment relationship, or principal and agent
-2-
relationship between Owner, its successors and assigns on the one part, and
Manager, its successors and assigns on the other part.
1.3 Term. Subject to the provisions of Article VIII, the term of this
Agreement shall be for a period of five (5) years ("Term"), commencing on
, 2003.
-----------
ARTICLE II
DUTIES
2.1 During the Term, Manager shall be responsible to either provide or
arrange for the Services enumerated for the proper and efficient operation of
the Facility as a skilled and/or intermediate care nursing facility and shall
provide Owner with the Services and other services requested that will be
necessary to maintain the Facility as such, including, but not limited to those
set forth below.
2.1.1 Initial Document Requirements.
a. On or prior to commencement of the Term, Owner will provide
Manager with copies of the Basic Documents.
b. Owner, within thirty (30) days after commencement of the Term,
shall prepare and submit to Manager a complete list of:
(i) books and records of the Facility held by Owner or the
prior manager;
(ii) personal property relating to the Facility;
(iii) service contracts relating to the Facility;
(iv) all necessary records relating to the operation of the
Facility and the personal property located at the Facility belonging to Owner;
and
(v) all licenses, permits, operating or occupancy
-3-
certificates, employment contracts, service contracts, cooperation agreements,
transfer or transportation agreements, and insurance certificates relating to
the maintenance and operation of the Facility.
Manager shall be responsible for the due and proper maintenance of all items on
the foregoing lists at the expense of Owner.
2.2 Manuals. Manager, upon execution of this Agreement, will review
existing, or if those are not available, furnish Owner with a copy of its
standard operating procedures manual covering operation, financial, accounting,
employees and other managerial aspects of the Facility's operations (the
"Operating Procedures Manual"). Manager acknowledges that it has met with Owner
representatives, has been briefed on general policies and procedures of Owner
with respect to managing the Facility, and has agreed to modify the Operating
Procedures Manual, where required, to reflect Owner's policies and procedures.
Manager and Owner shall develop a policies and procedures manual for the
operations of the Facility (the "Facility Manual"), a marketing plan (the
"Marketing Plan") and such other materials as Manager or Owner shall from time
to time deem appropriate. Manager agrees to abide by the directives, terms and
conditions of the Operating Procedures Manual, Facility Manual and Marketing
Plan, as amended from time to time.
2.3 Management of the Facility. Manager shall provide the management
services consistent with all applicable licensing, accreditation and
professional standards, including the standard of care for long-term care
facility operators in the State of Florida. Manager shall make available to
Owner the full benefit of the judgment, experience and advice of the members of
Manager's organization and staff. Manager shall act as agent
-4-
of Owner for the proper protection of and accounting for those of Owner's assets
at or related to the Facility.
2.4 Compliance with Basic Documents In the Use and Maintenance of the
Facility. Manager agrees not to permit the use of the Facility for any purpose
likely to void any policy of insurance held by Owner known to Manager or which
would be likely to render any loss insured thereunder uncollectible, or which
would violate in any material respect any governmental restriction, deed,
covenant, easement or requirement of any of the Basic Documents furnished to it
from time to time, or other agreement governing the occupancy, use or operation
of the Facility that has been delivered to Manager.
2.5 Personnel. On behalf of Owner, Manager shall investigate (where
appropriate), hire, pay, promote, supervise, and discharge (as necessary)
full-time and part-time on-site personnel necessary for the efficient discharge
of Manager's duties hereunder. All personnel, except for the personnel described
below, shall be employees of Owner.
Manager shall exercise due care in the selection of competent, diligent,
and honest Personnel and also shall:
a. provide a properly licensed, full time, on-site nursing home [or
assisted living facility] administrator ("Administrator") for the Facility, who
shall be selected with and upon the advice and approval of Owner, which approval
shall not be unreasonably withheld, and the salary, benefits and other
compensation shall be paid as an expense of the operation of the Facility. The
amount of such salary and other compensation which is reimbursable hereunder
will be within the range paid to comparable personnel at facility similar to and
in the local area of the Facility. The
-5-
Administrator shall be an employee of Owner unless Owner and Manager shall
specifically agree otherwise.
b. ensure that all Personnel are employees of Owner, and all salaries,
benefits, wages, and other compensation of the Personnel, will be charged to
Owner as expenses of the operation of the Facility.
c. use its best efforts to assure compliance with all applicable
employment, wrongful discharge, anti-discrimination, occupational safety, and
health and other similar laws and regulations affecting employment of Personnel,
and with private employment or union contracts; Manager agrees to indemnify and
hold Owner harmless from and against any loss, damage, claim, expense or other
liability arising out of or in connection with a breach or alleged breach of
such laws, regulations, or contracts created by Manager's fraudulent or willful
misconduct.
d. provide for and maintain an employee training and testing program
with objective standards for all categories of employees that will meet or
exceed all governmental and industry requirements for minimum levels of training
and degree of experience, all as specified in the Operating Procedures Manual
and the Facility Manual, and will provide for an adequate level of staffing for
all categories of employees consistent with the budgeted salary levels of the
Facility.
e. negotiate with any labor union lawfully entitled to represent all
or any group of Personnel, if any; provided, however, that any collective
bargaining agreement or labor contract resulting therefrom must first be
approved by Owner who shall be the only person authorized to execute the same.
2.6 Promotional Activities. Manager shall be responsible, exclusively, for
conducting promotional activities on behalf of the Facility, in accordance with
the
-6-
Marketing Plan, including media advertising and related marketing efforts,
together with occasional on-site seasonal or promotional activities. In order to
assure the efficiency and effectiveness of such marketing and promotion, Owner
shall refrain from undertaking any such activity except as may be recommended or
consented to by Manager.
2.7 Utilities and Supplies. Manager shall make all arrangements for the
furnishing to the Facility of utility, maintenance and other services and for
the acquisition of equipment, food, beverages and supplies as necessary for the
management, operation, maintenance and servicing of the Facility in the manner
described in Section 2.3. To the extent permitted by law, Manager will offer to
the Facility the opportunity to participate in any group or volume purchasing
contracts in which Manager may from time to time participate.
2.8 Telephone. Manager shall be responsible for: the proper operation and
maintenance of the telephone system; dealing with telephone company
representatives; for recommending significant changes, expansions or
substitutions of equipment to Owner; and controlling access to the Facility for
such purposes.
2.9 Cable. Manager shall be responsible for the proper control of
cable-related services, including the placement, maintenance and removal of
installed lines by third parties, and the access of such third parties to the
Facility. Manager shall be responsible for supervising such third parties or
service providers in installation, operation, maintenance, or removal of
equipment.
2.10 Emergency and Evacuation Procedures. Within thirty (30) days after the
occupancy of the Facility by Manager and annually thereafter, if required by
Owner, Manager shall review and make recommendations to Owner concerning all
written emergency and evacuation procedures presently covering the Facility for
the protection,
-7-
warning and safe and timely evacuation of all residents, guests, invitees and
staff from the Facility (the "Emergency and Evacuation Procedures"). Manager
agrees to consult with insurance carrier loss prevention consultants if so
required by Owner, and to change such Emergency and Evacuation Procedures if so
recommended; provided, however, that the Emergency and Evacuation Procedures
shall at all times comply with applicable governmental requirements. Manager
shall take such steps as it deems appropriate to assure the proper training of
the Personnel and Administrator and shall assure that all residents receive
training and are, to the extent reasonably possible, knowledgeable about such
Emergency and Evacuation Procedures.
2.11 Rebates, Discounts. Any and all refunds, volume discounts, rebates,
reduced rates for timely payment, or other benefits derived from business done
at, on or through the Facility shall be credited to Owner and not to Manager.
2.12 Assessments, Charges. Manager shall issue monthly bills to all
residents of the Facility for fees and other charges due the Facility or Owner,
and shall use diligent efforts to collect all such fees and charges and all
other revenues relating to the Facility, on behalf of Owner. Manager promptly
shall deposit all funds so collected in trust for Owner.
Manager shall notify Owner promptly, and in any event not less frequently
than monthly, of any and all defaults in payment of fees and other charges due
and shall institute, upon request of Owner and in the name of the applicable
Facility and/or Owner, as appropriate, any and all legal actions or proceedings
reasonable or necessary to collect such fees and charges, including any finance
charges, and, upon the request of Owner, exercise any and all remedies available
to such Facility and/or Owner to enforce such payment.
-8-
2.13 Compliance with Laws. Manager shall take such action as shall be
necessary to ensure that the Facility and the operation thereof by Manager will
comply with all federal, state, and local laws, rules, regulations, and
ordinances applicable to the Facility or the operation thereof by Manager
including the particular laws and regulations applicable to nursing homes [or
assisted living Facility]. In the event the terms of this Agreement or the
actions taken hereunder by Manager or Owner, at any time, fail to comply with
any federal, state or local law, rule, regulation or ordinance, including any
regulation of the Internal Revenue Service relating to the management or
operation of a nursing home [or assisted living facility], such failure shall be
cured immediately by Manager or Owner and, to the extent such failure requires
the modification of this Agreement, Manager and Owner agree to make such
modification to cause this Agreement to comply with all applicable rules, laws,
regulations and ordinances.
Manager shall promptly provide to Owner as and when received by Manager,
all notices, reports or correspondence from governmental agencies that assert
deficiencies or charges against the Facility or that otherwise relate to the
suspension, revocation, or any other action adverse to any approval,
authorization, certificate, determination, license or permit required or
necessary to own or operate the Facility. Manager may appeal any action taken by
any governmental agency against the Facility; provided, however, that Owner
shall adequately secure and protect the Manager from loss, cost, damage or
expense by bond or other means reasonably satisfactory to Manager in order to
contest by proper legal proceedings the validity of any such statute, ordinance,
law, regulation or order, provided that such contest shall not result in the
suspension of operations of the Facility and provided, further, that Owner shall
adequately secure and protect Manager from any loss, cost, damage or expense by
bond or other means reasonably satisfactory to
-9-
Manager in order to contest by proper legal proceedings the validity of any such
stature, ordinance, law, regulation or order, provided, however, that such
contest shall not result in the suspension of operations of a Facility and
provided, further, that Owner shall not have any obligation to secure and
protect Manager from any loss, cost damage or expense that arises directly out
of Manager's breach of any of its covenants under this Agreement.
2.14 Compliance with Official Orders: Copies of Notices. Manager shall take
such action as may be necessary to comply promptly with any and all orders,
evaluations, reports, or other requirements of any federal, state, regional,
county or municipal authority affecting the Facility or the operation thereof,
and orders of the Board of Fire Underwriters or other similar bodies. Manager,
however, shall not take any action under this Section so long as Manager has
been informed that Owner is contesting, or has affirmed its intention to contest
any such order or requirement, unless a failure to comply promptly with any such
order or requirement would expose Manager to civil or criminal liability.
Manager shall promptly, and in no event more than forty-eight (48) hours after
receipt, notify Owner of all such orders, notices, evaluations, reports or other
requirements. Manager immediately shall deliver to Owner copies of all notices
received by it or received at the Facility from any trustee, mortgagee, ground
landlord, or other party relating or pertaining to any of the Basic Documents.
2.15 Contracts. Manager is authorized to make and enter into such contracts
and agreements for the provision of supplies, material or labor to or for the
benefit of the Facility as are required in the ordinary course of business for
the operation, maintenance and service of the Facility; provided, however, that
Manager may not enter into any construction contract or other agreement which
could result in the creation of a lien on the Facility of more than $10,000 or
any contract involving the expenditure of more than
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$10,000, without the prior written consent of Owner, which shall not
unreasonably be withheld.
2.16 Repairs. Manager shall make or install or cause to be installed, at
Owner's expense and in the name of the Owner, any proper repairs, replacements,
additions and improvements in and to the Facility and the furnishings and
equipment in order to keep and maintain the same in good repair, working order
and condition, and outfitted and equipped for the proper operation thereof in
accordance with standards comparable to those prevailing in other similar
Facility, provided, however that nothing contained in this section shall be
deemed to authorize Manager to make any additions to the Facility increasing the
square foot area thereof, without the prior written approval of Owner, which
shall not unreasonably be withheld, and all such expenditures shall conform to
the requirements of the Basic Documents. Manager shall maintain a maintenance
log of all repairs, replacements or improvements made to the Facility. Manager
may contract with its affiliates with respect to the provision of supplies,
material or labor to or for the benefit of the Facility, provided that the
terms, conditions, provisions or arrangements are on the same or similar terms
as they would be if negotiated and consummated on a "arms-length" basis. Unless
the consent of Owner is otherwise obtained, all contracts or agreements entered
into by Manager shall be for a term of one (1) year or less, and shall provide
for payments within the then current Approved Budget (as hereinafter defined).
2.17 Licenses and Permits. Manager shall apply for and use its best efforts
to obtain and maintain in the name and at the expense of the Owner, all licenses
and permits required in connection with the management and operation of the
Facility. Owner agrees
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to cooperate with Manager in applying for, obtaining and maintaining such
licenses and permits.
2.18 Taxes. Manager shall cause all taxes, assessments, withholdings,
payroll taxes and charges of every kind imposed upon the Facility by any
governmental authority, including interest and penalties thereon, to be paid
when due if funds are available. Manager shall deliver to Owner a copy of any
assessment, tax notice or tax xxxx received by Manager and shall pay the same as
and when due; provided, however, that Manager shall not cause such payment to be
made if (i) same is in good faith being contested by Owner at its sole expense
and without cost to Manager, (ii) enforcement thereof is stayed and (iii) Owner
shall have given Manager written notice of such contest and stay and authorized
the nonpayment thereof not less than ten (10) days prior to the date on which
such tax, assessment or charge is due and payable. Interest or penalty payments
shall be reimbursed by Manager to Owner if imposed upon Owner solely by reason
of negligence on the part of Manager in making the payment if funds are
available therefor in a timely manner.
2.19 Maintenance and Disbursement of Funds. All bank accounts maintained by
Manager for the Facility will be opened and maintained as separate, segregated
accounts. Owner shall approve the banks selected for all accounts maintained at
offices of financial institutions or firms located in the State of Florida. Such
accounts shall permit checks thereon to be signed by any appropriate officer or
employee of Manager or Owner (such officer or employee to be specifically
designated). Funds in such account or accounts shall not be commingled with any
other funds controlled by Manager, and will be disbursed only in accordance with
this Agreement and, from time to
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time, upon the specific instructions of Owner. Nothing contained herein shall
require Manager to secure the signature of Owner for a wire transfer of payroll
and payroll taxes.
a. The Operating Account. Manager shall maintain an interest
bearing operating account (the "Operating Account") to and from which all funds
collected from the operation of the Facility are to be deposited and disbursed.
b. Disbursements from Operating Account. Owner shall assist
Manager in timely obtaining funds for the payment of Operating Expenses in
accordance with the terms of the Basic Documents and place such funds in the
Operating Account. Manager shall disburse such funds to pay promptly all
expenses authorized in the Approved Budget (as hereinafter defined) or otherwise
under the terms of this Agreement. For priority of payment purposes, the Monthly
Fee as well as any Reimbursable Costs shall be paid out of first available
revenues.
c. Non-Reimbursable Expenses. Except and to the extent approved
by Owner as a part of an Approved Budget or otherwise as an Approved Expense,
the following expenses shall be paid by Manager, without reimbursement by Owner:
(i) any expenses for Manager's home office, equipment or
supplies;
(ii) any overhead expense of Manager incurred in its general
offices;
(iii) salaries of any executive or supervisory personnel of
Manager, other than the full time on-site Administrator[s], including regional
or multisite managers, but excluding regional bookkeepers;
(iv) salaries, wages, and expenses allocable to any
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personnel for activities with regard to providing in-house accounting services
(other than full-time personnel employed by Owner at the Facility);
(v) any salaries, wages, and expenses for any central office
personnel located at the Facility;
(vi) wages, salaries, or other expenses for any services
provided by or on behalf of Manager, except as specifically provided herein and
authorized in advance by Owner; and
(vii) in addition, other than as provided in Article III
hereof, any computer time, equipment or other expense used or incurred in
processing payroll, the books and records of the Facility or in preparing any
statements or reports. However, nothing contained herein shall prohibit Manager
from hiring the services of a third-party payroll service as an operating
expense of the Facility.
d. Additional Funding. In the event funds in the Operating
Account are or will be insufficient to meet Authorized Expenses of the Facility
and any other expenses approved in writing by Owner, Manager will notify Owner
immediately of such deficiency, and, thereupon, Owner, or, at the request of
Owner, Manager may provide funds to meet such expenses. Any party so making such
an advance shall be reimbursed the full amount thereof, together with interest
on such amount from the date of such advance calculated at a rate of ten percent
(10%) per annum. Manager shall not be obliged to advance any of its own funds to
or for the account of Owner or to incur any liability hereunder for Authorized
Expenses or any other expenses approved in writing by Owner unless Owner shall
have furnished Manager with funds necessary to discharge the same. Nevertheless,
if Manager at any time advances any funds for Authorized
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Expenses, Owner shall immediately reimburse Manager for such funds upon demand,
provided Manager shall not be in default hereunder.
e. Patient Trust Account. Manager shall establish and maintain
records and procedures to account for all patient funds deposited with the
Facility. A "Patient Trust Account" shall be established for each Facility in
accordance with the terms hereof and the Basic Documents and all disbursements
therefrom and records and procedures relating thereto shall conform with the
requirements of third party reimbursement, licensure and all other applicable
requirements and the terms hereof and thereof.
2.20 Internal Control. Manager shall maintain adequate systems and
procedures governed by written policies and procedures covering all aspects of
its operational and fiscal processes and sufficient to ensure that the
Facility's assets and business are safeguarded in all material respects.
2.21 Extraordinary Services. Whenever Manager and Owner determine that
services not included in the services required to be rendered pursuant to this
Agreement are necessary or desirable for the efficient and economic operation of
the Facility ("Extraordinary Services"), Manager shall advise Owner of the need
and cost therefor and make recommendations related thereto. Manager shall then
perform the Extraordinary Services in accordance with the direction of Owner.
Such Extraordinary Services may include repairs, replacements and alterations to
the Facility not covered by the Approved Budget.
ARTICLE III
COVENANTS
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3.1 Manager and Owner each covenant that during the term of this Agreement,
except as otherwise approved in writing by the other, neither it nor any of its
subsidiaries or related entities ("Affiliates"), shall, either directly or
indirectly, for itself, or through, on behalf of or in cooperation with, any
person, persons, partnership or corporation:
a. materially divert or attempt to divert any business or
customer of the Facility to any competitor by direct or indirect inducement or
otherwise other than for services not provided by the Facility; or
b. do or perform, directly or indirectly, any other act injurious
or prejudicial to the goodwill associated with the Facility. Provided, however,
that the foregoing shall not be construed to limit the right of: (i) Owner to
own other nursing homes; or (ii) Manager or an affiliate of Manager to engage in
management activities that do not compete, by reason of geographic location
(within a 20 mile radius of the Facility), type of service, patient or provider
characteristics, or other basis upon which such services may reasonably be
considered to be outside of the market for the services of the Facility.
Notwithstanding the foregoing, it is acknowledged and agreed that Manager may
continue to manage any facilities owned by Owner within such territory.
3.2 The Owner does hereby represent to Manager as follows, which
representations and warranties are being relied upon by Manager, without
investigation, fur purposes of entering into this Agreement.
3.2.1 The Owner has ownership or leasehold interests and/or title to
the Facility free and clear of any liens, encumbrances, restrictions and
interest whatsoever except the third party interests set forth and described on
Exhibit 3.1 ("Adverse Interests"), none of which Adverse interests prohibit the
execution and performance of
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this Agreement by the Owner or Manager. Owner is a limited liability company,
duly formed in and in good standing in the State of Florida, and has taken all
action deemed necessary and/or required to enter into this Agreement and bind
the Owner to the full and faithful performance of the terms of this Agreement.
The individual executing this Agreement is an officer of the Owner and is fully
authorized to execute this Agreement on behalf of the Owner.
3.2.2 The Facility is duly licensed for operation as a skilled
nursing, intermediate care facility, with a total of licensed skilled
---
nursing beds, of which are currently in service, is duly certified for
---
participation in the Medicare and State of Florida Medicaid programs, and such
licenses and provider agreements are not probationary, conditional or in any
manner restricted and to the knowledge of the Owner, there is no notice of
termination pending, outstanding or threatened by any governmental agency. To
the knowledge of the Owner, the Facility is in good standing with all
governmental agencies having governance over the business conducted at the
Facility and there do not exist any state survey deficiencies containing
deficiencies which have not been fully corrected. To the knowledge of the Owner,
neither the Owner nor the Facility is the subject of any investigation by any
governmental agency, including without limitation, HCFA, the OIG, the FBI, the
DOJ, OSHA or the Department of Labor. A copy of the Facility's current license,
provider agreements with the Medicare and Medicaid programs, permits and most
recent state survey are attached hereto as Exhibit 3.2 ("Licenses, Agreements
and Surveys").
3.2.3 To the knowledge of the Owner, the Facility, including without
limitation, the real property, improvements, equipment, furniture, furnishings,
supplies and structural components, are in good condition and repair and fit for
use in the
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operation of the Facility as licensed and as required by applicable laws, rules
and regulations. Manager has conducted an on-site inspection of the Facility and
has identified for the Owner necessary repairs and improvements.
ARTICLE IV
BUDGETING
4.1 Budget. As soon as practicable after the date hereof and at least
ninety (90) days prior to the commencement of each subsequent fiscal year during
the term of this Agreement, Manager shall prepare and submit to Owner a proposed
accrual basis operating budget (the "Budget") in accordance with the
requirements of the Basic Documents, for the ensuing calendar year setting
forth, on a monthly basis, Manager's estimates of:
a. operating revenue;
b. operating expenses, including the costs for repairs and
maintenance;
c. expenditures for capital improvements, including alterations,
improvements, additions and replacements to the Facility;
d. expenditures for advertising, promotion, and personnel
training programs to be undertaken by Manager;
e. management fees;
f. all other matters required by the Basic Documents.
Owner shall approve or disapprove of the proposed Budget in writing to
Manager, detailing the basis for disapproval, within thirty (30) days after
receipt. If Owner does not approve or disapprove of the proposed Budget within
such thirty (30) day period then Owner shall be deemed to have approved the
Budget. If Owner disapproves the Budget,
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Manager will resubmit a Budget within fifteen (15) days after initial rejection.
Owner shall approve or disapprove any such resubmitted Budget within fifteen
(15) days of its receipt thereof. The Budget as so finally approved by Owner
shall constitute the "Approved Budget" for purposes hereof and the annual budget
for such calendar year for purposes of the Basic Documents. Owner will not
unreasonably withhold or delay approval of a proposed Budget or revision.
An Approved Budget shall constitute authorization for Manager to expend
funds to operate and manage the Facility pursuant to such Approved Budget, and
Manager may do so without further approval. Manager shall adhere to the Approved
Budget and shall notify Owner of any proposed increases in expenditure, which
must be approved in advance by Owner.
4.2 Forecast and Budget Revisions. If at any time circumstances indicate
that the Approved Budget does not properly take into account the projected needs
of the Facility, Manager shall notify Owner of the same and shall submit to
Owner a proposed revision to the Approved Budget which Owner shall approve or
disapprove within thirty (30) days after submission. If the proposed revision is
disapproved by Owner, Owner and Manager shall endeavor to agree on a revised
Budget.
Once approved, Manager's authority as to any revised Budget is the same as
that authorized for the original Approved Budget. In any event, not later than
thirty (30) days prior to the first day of the sixth month of each fiscal year,
Manager shall prepare a forecast of operations of the current year taking into
account actual operations to date and estimated operations for the remainder of
the year.
4.3 Expenditures for Capital Items. The Approved Budget shall constitute
authorization for Manager to make the capital expenditures contemplated thereby.
If
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Manager believes the purchase or installation of new or replacement equipment or
other capital items not contemplated by the Approved Budget is or will be
necessary or desirable, Manager shall advise Owner thereof, but shall cause such
items to be purchased and installed only after obtaining the prior written
authorization of Owner.
4.4 Authorized Expenses. All expenses authorized pursuant to this Article
IV or authorized by Owner in writing, shall constitute "Authorized Expenses" for
purposes of this Agreement.
ARTICLE V
INSURANCE
5.1 Owner's Insurance. Manager will procure and maintain, at Owner's
expense with appropriate coverage for Manager as an additional insured, all
insurance required under any of the Basic Documents, and to the extent
consistent with such requirements, the following insurance.
a. insurance against loss or damage by fire, wind, hail,
lightning and other perils insurable under the broad form of extended coverage
insurance available in the area where the Facility is located, on all buildings
and improvements, and contents thereof, constituting all or any portion of the
Facility, in amounts sufficient to cover one hundred percent (100%) of the
replacement cost thereof and in amounts which are sufficient to prevent any
applicable coinsurance provision from becoming effective subject to a maximum
$10,000 deductible;
b. insurance against loss or damage resulting from explosion of
boilers, heating apparatus or other apparatus containing fluids under pressure,
in amounts reasonably determined by Owner;
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c. comprehensive general public liability insurance against loss
or liability for damages for personal injury, death or property damage occurring
on, in or about the Facility in amounts and on terms agreed to by Owner and
Manager;
d. professional liability insurance covering all liabilities
arising from the providing of health care or other services at the Facility
where deemed appropriate by Owner or required by insurance carrier;
e. loss of income or business interruption coverage in an amount
not less that six (6) month's debt service on all outstanding obligations
secured by the revenues of the Facility or such greater amount as may reasonably
be determined by Owner;
f. insurance for automobiles owned or hired by Manager or Owner
and used in connection with the Facility having a combined single limit bodily
injury and property damage of at least $ 1,000,000;
g. such other insurance as Owner may from time to time reasonably
require; and
h. worker's compensation and employer's liability insurance
required under applicable laws covering all employees at the Facility if
requested by Owner.
5.2 Nature of Policies. Unless otherwise approved by Owner, all insurance
policies required under the provisions of this Article shall be written by
companies selected by Manager and approved by Owner and to the extent possible:
a. name and designate Owner and Manager (together with any
mortgagee or other lien holders, as applicable) as named insureds;
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b. provide that such policy shall not be canceled or materially
altered or amended without at least thirty (30) days' prior written notice to
each insured named therein, notwithstanding any act or negligence of Manager
that otherwise might result in forfeiture of said insurance; and
c. provide that such insurance shall not be invalidated by any
act or negligence of Owner or Manager.
Manager shall furnish to Owner evidence of all insurance coverage required
herein within thirty (30) days of the date hereof and renewals thereof at least
thirty (30) days prior to expiration.
ARTICLE VI
BOOKS, RECORDS AND REPORTS
6.1 Fiscal Year. The fiscal year of the Facility shall end on December 31.
6.2 Records. Manager shall maintain a comprehensive system of office
records, books and accounts in connection with its management and operation of
the Facility, in form satisfactory to Owner, which shall belong to Owner. Such
books and records shall be kept in accordance with generally accepted accounting
principles ("GAAP"). Owner and others designated by Owner shall have at all
reasonable times access to such records, accounts and books and to all vouchers,
files and all other material pertaining to the Facility and this Agreement, all
of which Manager agrees to keep safe and separate from any records not having to
do with the Facility.
6.3 Monthly Reports. During the term of this Agreement, Manager shall
deliver to Owner the following statements prepared in accordance with GAAP
applied consistently from period to period on the accrual basis by the
twenty-fifth (25th) of the following month:
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(i) balance sheet dated as of the last day of the preceding
month;
(ii) comparative profit-and-loss statement presenting the
monthly and year-to-date results of operations of the Facility as compared with
the month and year-to-date budget and showing the variances in dollars and per
beds per day; and
(iii) any other information relating to the Facility
reasonably requested by Owner.
The Manager shall cooperate with any auditor or accountant selected by
Owner in connection with the preparation of financial statements which are
required to be prepared by a certified public accountant in accordance with the
Basic Documents.
6.4 Performance. To insure the reliability and reasonableness of all
statements required by this Article VI, Manager shall regularly perform the
following:
a. either pay, on or before the respective invoice due dates, all
monthly charges, fees, bills, invoices, etc., normally and customarily incurred
for such month in connection with the operation of the Facility, or if any such
charges, fees, bills, or invoices were incurred but are not paid by the last day
of such month, accrue such amounts; and
b. accrue proportionally to each applicable month payable for a
period greater than a month, any charges including but not limited to real
estate taxes, assessments and insurance premiums.
If due to extraordinary circumstances, Manager identifies expenditures
after the last day of the month which are in fact properly chargeable to that
month but which are not reflected on statements submitted pursuant to this
Section, Manager shall
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immediately notify Owner of said expenditures and include them in the next
month's financial statements. All statements required by this Section shall be
prepared in accordance with GAAP.
6.5 Reports to Agencies.
a. Manager shall prepare in a timely and diligent manner all
forms and returns required by law or regulation to be prepared or filed in
connection with the operation of the Facility and the rendering of services to
residents, including but not limited to, any reports or filings required by any
local, state of federal law in connection with licensing, unemployment
insurance, worker's compensation insurance, disability benefits, FICA and
withholding taxes, and other similar reports or returns now in effect or
hereinafter imposed.
b. Manager shall not be responsible for preparing or filing
Owner's federal or state income tax returns but Manager shall be responsible for
furnishing operating information required therefor.
6.6 Audits. Manager will cooperate with and give reasonable assistance to
any independent public accountant retained by Owner to examine any cost reports,
financial statements or other records pertaining to the Facility.
ARTICLE VII
COMPENSATION
7.1 Monthly Fee. During the Term of this Agreement, the Manager shall
receive an amount equal to Four Percent (4%) of the gross revenue of the
Facility annually payable on a monthly basis on or prior to the tenth (10th) day
of each month (the "Due Date"). The monthly amount payable will be a good faith
estimate of the revenue for that month with a reconciliation within thirty (30)
days of the end of the year
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("Annual Due Date) (the "Monthly Fee" or the "Management Fees"). The
reconciliation will reflect the total gross revenue by month with the prior
payments. Any balance due Manager will be paid within ten (10) days thereafter.
The Monthly Fee shall be fully earned by the Manager and paid by the Owner to
the Manager on the Due Date and Annual Due Date without setoff or deduction,
time being of the essence.
7.2 Reimbursable Expenses. In addition to the Management Fee, Owner hereby
agrees to reimburse Manager for any and all reasonable costs and expenses
incurred by Manager in connection with the performance of its services under
this Agreement relating to copying, supplies and other customary costs and
expenses incurred in providing management services (the "Reimbursable Costs and
Expenses"). Such reimbursement shall be made within thirty (30) days from the
submission by Manager to Owner of an invoice detailing such expenses with
supporting documents.
7.3 Additional Costs and Expenses. In addition to the fees, costs and
expenses agreed to be paid by the Owner, it is agreed that the following costs
and expenses also will be paid by Owner to Manager.
7.3.1 Reasonable costs and expenses incurred by the members of
Manager's quality validation team during twice a year site visits to the
Facility including transportation, lodging and meals.
7.3.2 The fees and reasonable costs and expenses incurred as a result
of contracts entered into by Manager with the prior written approval of Owner
for the services of outside consultants and professionals including accountants,
attorneys, healthcare specialists and others which are deemed necessary in the
reasonable discretion of Manager and have been reviewed with Owner in advance.
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7.4 Payment of Management Fees. Owner hereby authorizes Manager to pay the
Monthly Fee, and reimbursable and approved costs and expenses out of the
Operating Account established and maintained by Manager pursuant to this
Agreement; provided, however, such authorization shall not relieve Owner from
its primary obligation and liability for the payment of such Monthly Fee and
reimbursable and approved costs and expenses to Manager pursuant to this
Agreement in the event that there are not sufficient funds in the Operating
Account or generated by the Facility operations to make such payments.
7.5 Facility Operating Costs and Expenses. Owner hereby acknowledges,
covenants and agrees that it is fully liable for providing any and all required
and/or necessary funds of every nature and kind whatsoever for the operation of
the Facility in full compliance with any and all federal, state and local laws,
rules and regulations, including without limitation, compliance with any and all
federal and state licensing requirements, the Medicare program and the state
Medicaid program. Manager has absolutely no liability or responsibility
whatsoever for providing any such funds except that Manager shall be required to
supervise and manage the payment of funds pursuant to this Agreement out of the
funds deposited into the Operating Account of the Facility. Owner hereby
covenants and agrees to fund any operating deficits within forty-eight (48)
hours from receipt of a notice from Manager that such funds are needed to
operate the Facility and meet their obligations. Owner covenants and agrees to
take any and all action to fund any deficits and to deposit or otherwise make
available to Manager all necessary operating funds to assure the payment, on a
timely basis, in accordance with applicable laws, rules and regulations and the
provisions of any contracts entered into by Owner, the Facility or Manager on
behalf of the Owner or the Facility, of all amounts due
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to employees, independent contractors including Manager, vendors, consultants
and others to whom amounts are legally due and payable. Owner hereby
acknowledges that Manager is not hereby assuming nor shall Manager be liable for
providing any funds or capital, including without limitation, working capital to
pay Facility's liabilities, costs or expenses.
7.6 Pre Agreement Services. In the course of assisting Owner in the
transition of the operation of the Facility by Owner to Manager, Manager has
undertaken certain actions to assure to Owner that such transition would be done
in an efficient manner and in the best interests of the Owner. Manager has
undertaken to assist Owner in working out a smooth transition of management of
the operations to Manager. Manager has, in this process, incurred certain out of
pocket cost and expenses including salaries of personnel and fees of consultants
and professionals. Owner agrees to pay Manager at the commencement date of this
Agreement a fee of to cover such costs and expenses.
---------------
7.7 Payment of Management Fees Upon Damage or Destruction. In the event
that any of the Facility are damaged by fire or other casualty or any of the
Facility loses its license to operate through no negligence of Manager, the
obligations of Owner for payment of the Management Fee shall continue through
the Term of the Agreement and Owner shall purchase necessary insurance policies,
including without limitation, business interruption insurance, to provide funds
from which to pay to Manager the Management Fee which Manager would have
reasonably anticipated to receive had a Facility not been damaged, destroyed or
lost the ability to operate its business as a skilled nursing [or assisted
living] facility. In such event, the Management Fee payable to Manager shall be
equal to the normal monthly management fee.
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ARTICLE VIII
TERMINATION AND ASSIGNMENT
8.1 Automatic Renewal, The Initial Term of this Agreement shall be
automatically extended on the same terms, covenants and conditions as are then
in effect, for additional consecutive periods of one (1) year each (the
"Extended Term") unless one of the parties provides a written notice of
termination to the other party at least ninety (90) days prior to the expiration
of the Initial Term or at least thirty (30) days prior to the expiration of any
Extended Term. (The Initial Term and the Extended Term, if any, are herein
collectively referred to as the "Term").
8.2 Termination. This Agreement may be terminated at any time prior to the
expiration of the Term as follows, without prejudice to any other rights or
remedies available to the terminating party pursuant to this Agreement or
applicable Law:
8.2.1 In the event that Manager is not paid the Management Fee
("Payment Default") in whole or in part, on the due date, Manager shall have the
right to terminate this Agreement unless such Payment Default is cured within
twenty (20) days from receipt of written notice setting forth such Payment
Default. The termination right granted to Manager shall not be conditioned upon
Manager first complying with the dispute resolution provisions of this
Agreement.
8.2.2 Either party may terminate this Agreement upon written notice to
the other party if there is a material breach of this Agreement, other than a
Payment Default described in Section 8.2.1 by the other party ("Non-Payment
Default") and such breach remains uncured and uncontested for a period of ten
(10) days following notice to the other party setting forth in reasonable detail
the nature of the breach.
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8.2.3 Either party may terminate this Agreement upon written notice to
the other party if (i) a petition of bankruptcy is filed (or other commencement
of a bankruptcy or similar proceeding shall have occurred) against the other
party without its consent under applicable bankruptcy, insolvency or similar
laws as now or hereafter in effect, (ii) the other party consents to the
institution of bankruptcy or insolvency proceedings against it or it files a
petition or answer or consent seeking reorganization or relief (other than as a
creditor) under the U.S. Bankruptcy Code or any other federal or state law
relating to its bankruptcy or insolvency, (iii) the other party consents to the
appointment of a receiver, (iv) the other party makes an assignment for the
benefit of its creditors, or (v) the other party admits in writing its inability
to pay its debts generally as they become due.
8.2.4 Either party may terminate this Agreement upon thirty (30) days
prior written notice to the other party if the Facility has its state operating
license suspended, revoked or otherwise terminated and, as a result, the
Facility is unable to be operated as a skilled nursing [or assisted living]
facility; provided, however, in such event the parties shall cooperate in
assuring the orderly transition and safety of all residents.
8.2.5 Owner shall have the right to terminate this Agreement upon
sixty (60) days' prior written notice in the event that Manager assigns this
Agreement to a third party which is not an affiliate of Manager; provided,
however, that Manager may enter into an agreement with Extendicare Health
Services, Inc. or any of its affiliates or other unaffiliated entities to
provide certain of the financial services to be provided by Manager.
8.2.6 Manager shall have the right to terminate this Agreement on 30
days prior written notice in the event that there occurs either (a) a change of
ownership of
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the Facility or Owner or (b) the controlling interest in Owner is transferred to
a third party for any reason.
8.2.7 Owner may terminate this Agreement upon thirty (30) days written
notice if:
a. Manager has caused or allowed to exist an Event of Default
under any Basic Document; or
b. A receiver, liquidator or trustee for Manager shall be
appointed by court order or a petition to liquidate or reorganize Manager under
any bankruptcy, reorganization, or insolvency law, shall have been filed and
such order or petition is not vacated or dismissed within sixty (60) days, or
Manager shall file a petition in bankruptcy, or if Manager shall make an
assignment for the benefit of its creditors; or
8.3 Survival. The following provisions shall survive the expiration or
termination of this Agreement: Sections 8.4, 8.5, 12.10, 12.11, 12.12, 12.13,
12.14, 12.16 and 12.18.
8.4 Manager's Obligations After Termination. Upon the expiration or
termination of this Agreement or the termination of Manager's services
hereunder, as provided above, Manager shall:
a. deliver to Owner, or such other person or persons designated
by Owner, copies of all books and records of the Facility and all funds in the
possession of Manager belonging to Owner or received by Manager pursuant to the
terms of this Agreement or of any of the Basic Documents for or on behalf of
Owner;
b. assign, transfer, or convey to such person or persons all
service contracts and personal property relating to or used in the operation and
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maintenance of the Facility, except any personal property which was paid for and
is owned by Manager;
c. remove, at its cost and expense, all signs that it may have
placed at the Facility indicating that it is the manager of same and replace and
restore any damage resulting therefrom; and
d. make itself available at reasonable times at the expense of
Owner, for a period of 120 days after such expiration or termination, to consult
with and advise Owner or such other person or persons regarding the operation
and maintenance of the Facility.
Upon any termination or the expiration pursuant to this Section, the
obligations of the parties hereto (except those specified as surviving) shall
cease as of the date specified in the notice of termination, except that Manager
shall comply with the applicable provisions of this Section and shall be
entitled to receive any and all compensation which may be due Manager hereunder
through the effective date of such termination or expiration, subject to the
terms of the Basic Documents. In addition, Manager shall not hire any employees
of Owner following any such termination or expiration of this Agreement without
the prior written consent of Owner.
8.5 Owner's Obligation upon Termination. Upon any termination of this
Agreement by Owner, Manager shall be paid three (3) Month's Fee.
ARTICLE IX
CASUALTY AND CONDEMNATION
9.1 Casualty. If, during the term hereof, the Facility is damaged or
destroyed, in whole or in part, by fire, casualty or other cause, Owner, at its
option, may repair or replace the damaged or destroyed portion of the Facility.
Subject to the provisions of any
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Basic Documents, all insurance proceeds or recoveries shall be payable to, and
are hereby assigned to Owner and shall be paid directly to Owner.
9.2 Condemnation; Eminent Domain. If the whole of the Facility shall be
taken by condemnation or in the exercise of the right of eminent domain,
compulsory acquisition, or like proceeding by any competent authority for any
public or quasi-public use or purpose or if such portion thereof shall be taken
or condemned as to make it imprudent or unreasonable, in Owner's reasonable
opinion, to use the remaining portion of the Facility as a facility of the type
and class immediately preceding such taking or condemnation, then in either such
event, at Owner's option the term of this Agreement shall cease and terminate as
to the condemned Facility on the date on which Owner shall determine to cease
using the Facility as such as a consequence of such taking or condemnation.
Nothing herein shall limit or restrict Manager from filing a claim with any
competent authority for compensation, loss, or damages which Manager might
suffer by reason of such taking and the consequential termination of this
Agreement.
If only a portion of the Facility shall be taken or condemned as aforesaid,
and in the opinion of Owner, such taking does not result in an unreasonable
deprivation or limitation of the continued use and operation of the Facility,
this Agreement shall remain in full force and effect as between the parties,
except that, effective as of the date of such taking appropriate abatement shall
be made in the services to be performed by Manager as to such taken area of the
Facility.
ARTICLE X
NOTICES
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10.1 Notices. All notices shall be in writing and shall be deemed to have
been properly given on the earlier of (i) when delivered in person, (ii) when
deposited in the United States Mail, with adequate postage, and sent by
registered or certified mail with return receipt requested, to the appropriate
party at the address set out below, or (iii) when deposited with Federal
Express, Express Mail or other overnight delivery service for next day delivery,
addressed to the appropriate party at the address set out below.
Owner:
[New Operator]
Manager:
Senior Health Management-Gold Coast, LLC
Attn: Xxxx Xxxxx, President
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000X
Xx. Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Republic First Bank
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Rejection or other refusal by the addressee to accept, or the inability of
the courier service or the United States Postal Service to deliver because of a
changed address of which no notice was given, shall be deemed to be receipt of
the notice sent. Any party shall have the right, from time to time, to change
the address to which notices to it shall be sent by giving to the other party or
parties at least ten (10) days prior notice of the changed address.
ARTICLE XI
OWNER'S RIGHTS
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11.1 Owner's Sale, Transfer or Lease. Owner shall have the right to sell,
lease, hypothecate, mortgage, and convey the Facility, or any portion thereof
and to assign this Agreement in connection therewith, without the consent of
Manager provided any purchaser, lessee, mortgagee or other transferee expressly
assumes all of the obligations of Owner hereunder pursuant to a written
agreement. In the event of such an assignment, the obligations of Owner
hereunder shall terminate, and, after satisfying in full its obligations to
Manager hereunder, which have accrued prior to the date of such assignment,
Owner will not be responsible to Manager for any acts arising out of the actions
of Manager or the new owner or lessee thereafter. Notwithstanding anything
contained herein to the contrary, Manager shall cooperate with any such
purchaser or lessee of the Facility, if the sale or lease occurs at such time as
this Agreement is in effect. Manager acknowledges and consents to the collateral
assignment of this Agreement to the Bond Trustee for the Bond Financing.
11.2 Assignment. Manager may not assign or otherwise transfer this
Agreement or any interest therein without the prior written consent of Owner,
which consent will not unreasonably be withheld.
11.3 Cooperation. Manager shall furnish such information and certifications
with respect to the Facility and this Agreement as are reasonably requested by
any secured party, assignee of this Agreement, or purchaser of all or any
portion of the Facility.
ARTICLE XII
GENERAL
12.1 Legal Actions. Manager shall institute, in its own name or in the name
of the Owner, but in any event at the expense of the Owner, any and all legal
actions or
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proceedings to collect charges, rent, or other sums due the Facility or to
lawfully oust or dispossess tenants or other persons in possession under, or
lawfully cancel, modify, or terminate any lease, license or concession agreement
for the breach thereof or default thereunder by the tenant, licensee, or
concessionaire.
Unless otherwise directed by Owner, Manager shall take, at Owner's expense,
appropriate steps to protect and/or litigate to final judgment in any
appropriate court any violation, order, rule, or regulation affecting the
Facility. Any counsel to be engaged under this or the next preceding paragraph
of this section shall be approved by Owner, which approval shall not be
unreasonably withheld. Manager shall promptly notify Owner of all legal actions.
12.2 Use of Facility. Manager shall use the Facility solely for the
operation of a skilled and intermediate care nursing [and an assisted living]
facility and for all activities in connection therewith which are customary and
usual to such a facility.
12.3 Liens. Manager and Owner shall use their best efforts to prevent any
liens from being filed against the Facility which arise from any maintenance,
repairs, alternations, improvements, renewals or replacements in or to the
Facility, other than to secure the financing thereof. Both parties shall
cooperate fully in obtaining the release of any such liens, and the cost
thereof, if the lien was not occasioned by the fault of either party, shall be
treated the same as the cost of the matter which it relates. If the lien arises
as a result of the fault of either party, then the party at fault shall bear the
cost of obtaining the lien release.
12.4 Modification and Amendments. This Agreement shall not be altered or
amended except in writing, signed by the party sought to be charged with such
alteration or amendment, or its authorized agent and, to the extent required by
the Basic
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Documents, with the consent of the holder of the bonds described in the Basic
Documents.
12.5 Waivers. No party shall be deemed to have waived any rights provided
to such party under this Agreement without a written statement by such party
indicating that such party was aware of such rights and intended to waive such
rights. No waiver of any right by a party or failure to exercise any right of a
party with respect to any occurrence or event shall be deemed a waiver of such
party's right with respect to any other occurrence or event or with respect to a
later happening of the same occurrence or event.
12.6 Complete Agreement. This Agreement constitutes and embodies the full
and complete understanding of the parties hereto with respect to the management
of the Facility, and supersedes all prior understandings whether oral or
written.
12.7 Drafting. The language of this Agreement is the result of discussion
and negotiation between the parties, each of which has read and understands each
provision of this Agreement, and interpretation or construction of this
Agreement shall not be affected by any determination as to who was the draftsman
of all or any part of this Agreement.
12.8 Headings. The article and section headings used herein are for
convenience and reference only and are not intended to define, limit or describe
the scope or intent of any provisions of this Agreement.
12.9 Governing Law. The law of the state where the Facility is located
shall govern the validity, interpretation and enforcement of this Agreement, and
any action brought with respect to this Agreement shall be brought in that state
in the county where the Facility is located. Owner and Manager each hereby
consents to jurisdiction under the courts of such state.
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12.10 Indemnity by Owner. Owner shall indemnify, defend and hold Manager,
its members, managers, officers, employees and affiliates harmless from any and
all liabilities, obligations, claims, litigation, losses, damages, judgments,
fines, penalties (including without limitation, civil money penalties), costs
and expenses (including reasonable attorney fees) (collectively the
"Liabilities") arising as a result of Manager's performance of the management
services except to the extent that such liabilities are caused by the
negligence, criminal or wanton or willful acts or omissions of Manager in the
performance of the management services.
12.11 Indemnity by Manager. Manager shall indemnify, defend and hold Owner,
its members, directors, officers, employees and affiliates harmless from any and
all liabilities, obligations, claims, litigation, losses, damages, judgments,
fines, penalties (including without limitation, civil money penalties), costs
and expenses (including reasonable attorney fees) (collectively the
"Liabilities") arising as a result of Manager's negligence, criminal or wanton
or willful acts or omissions in the performance of the management services.
12.12 HHS. Until the expiration of four (4) years after the furnishing of
the services called by this Agreement, Manager shall make available upon request
to the United States Department of Health and Human Services ("HAS"), the United
States Comptroller General and their representatives, this Agreement and all
other books, documents and records as are necessary to certify the nature and
extent of the costs incurred by Owner in purchasing services under this
Agreement, and if Manager provides such services through a subcontract worth
$10,000 or more over a twelve-month period with a related organization, the
subcontract shall also contain a clause permitting access
-37-
by the HAS, the United States Comptroller General and their representative to
books and records of the related organization.
12.13 Basic Documents to Control. In the event of an inconsistency between
the provisions of this Agreement and the Basic Documents, the Basic Documents
shall control. Manager acknowledges that it has received copies of the Lease and
any loan documents.
12.14 Manager's Personal Property. Confidentiality. During the course of
providing the management services to Owner, Manager shall provide to the
Facility certain personal property of Manager, including, without limitation,
certain proprietary and confidential information which has been developed,
purchased, leased or licensed by Manager for its exclusive use in the operation
of its business. Such proprietary and confidential personal property shall
include, without limitation, written policy and procedure manuals, systems and
techniques, written forms, documents, software programs, trade names,
trademarks, and copyrighted material. In addition, from time to time, Manager
shall bring upon the Facility certain tangible items of personal property for
use in the performance of its management services. All of such personal property
described above is and shall remain the property of Manager and shall not, under
any circumstances, be the property of Owner or the Facility, except pursuant to
a written agreement for the sale, lease or license of such personal property.
None of the proprietary personal property shall be reprinted, duplicated, kept
or in any other manner appropriated for the use and benefit of Owner or the
Facility or any other third party, in any manner, in whole or in part, without
the prior written authorization of Manager, which authorization may be withheld
by Manager in its sole and absolute discretion. Upon termination of this
Agreement, all of such personal property shall be removed by Manager from the
Facility
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and any such personal property in the possession of the Facility employees or
Owner shall be returned to Manager.
12.15 Purchase of Computer Equipment and Software. Owner hereby agrees to
purchase, at its sole cost and expense, if required, the computer equipment,
accessories, software applications and maintenance programs and services, of a
quality and quantity as deemed appropriate and recommended by Manager, in
Manager's reasonable discretion and approved by Owner, in order to enable the
Facility to operate efficiently and in compliance with all applicable laws,
including, without limitation, the preparation of the minimum data sets,
resident assessments, resident care plans and such other applications as may,
from time to time, be appropriate or required for the efficient operation of the
Facility and the submission of required information to the Medicare and Medicaid
programs and other payors. Any such computer equipment, accessories and software
programs purchased by Owner shall remain the property of the Owner upon
termination of this Agreement.
12.16 Non-Employment of Manager's Personnel Owner shall not, during the
Term of this Agreement and for a period of one (1) year thereafter, employ,
solicit or seek to solicit or employ any person who is employed by Manager
either in the performance of the management services with respect to the
Facility or elsewhere, without first obtaining the written consent of Manager.
12.17 Manager's Affiliation: Signs. Manager, at its option, shall provide
Owner with suitable signs and appropriate decals indicating Manager's
affiliation with the Facility and Manager shall have the right to erect such
signs, decals, indicia and identification which identifies Manager as the
Manager of the Facility. It is specifically understood, however, that such signs
and decals shall remain the property of Manager,
-39-
and Manager shall have the right to reclaim and remove same from the Facility
upon termination of this Agreement.
12.18 Dispute Resolution. In the event that a dispute arises out of this
Agreement which the parties cannot resolve by negotiation, the dispute shall be
settled by binding arbitration conducted in accordance with the rules and
regulations of the American Arbitration Association ("AAA") unless the parties
select another arbitration service through mutual agreement. Demand for such
arbitration shall be made by either party within thirty (30) days after the
negotiations have, in the opinion of such party, been unsuccessful. The parties
shall select an arbitrator within ten (10) days of the arbitration demand. If
the parties are unable to select an arbitrator one shall be selected under the
AAA procedures. The arbitrator shall hold a hearing and decide the matter within
thirty (30) days after appointment. Arbitration shall take place in Tampa,
Florida or another place agreed upon by the parties. The results of the
arbitration shall be final and binding and the results may be entered in any
court having jurisdiction. Costs of any arbitration shall be shared equally by
the parties. The non-prevailing party in such arbitration shall be responsible
for the payment of the reasonable attorney's fees of the prevailing party.
12.19 Consents and Approvals. Whenever the consent or approval of a party
to this Agreement is required pursuant to the terms of the Agreement such
consent or approval shall not be unreasonably withheld or delayed unless it is
specifically stated in the section requiring such consent or approval that such
consent or approval may be withheld or delayed for any reason within the sole
discretion of the party whose consent or approval is required.
12.20 Brokers, Finders. Owner and Manager each represent to the other that
no broker(s) or finder(s) have been involved in this transaction in any manner
and that there
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is no broker or finder entitled to any fee, compensation or any other form of
consideration in connection with the transaction described in this Agreement or
the transactions to be provided for herein, including without limitation, the
rights of first refusal granted by Owner to Manager. Each of the parties hereby
agrees to indemnify, defend and hold the other party harmless against any claim
(including reasonable attorneys' fees incurred by the other party) by or
liability to any broker or finder purporting to act on behalf of either Owner or
Manager in connection herewith.
12.21 Manager's Representative. On the Commencement Date of this Agreement,
Manager shall assign Xx. Xxxxx Xxxxxxxxx of Clearwater, Florida, the CEO of the
Manager ("Xx. Xxxxxxxxx"), to be Manager's representative responsible for the
delivery of the management services. Manager retains the right, in its sole
discretion, to replace Xx. Xxxxxxxxx and assign another employee to provide the
management services.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, Owner and Manager have caused their incumbent and duly
authorized officers to set their respective hands as of the date first written
above.
OWNER:
[New Operator], a Florida limited liability
company
By:
----------------------------------------
Its:
[SEAL]
MANAGER:
SENIOR HEALTH MANAGEMENTGOLD COAST, LLC,
a Florida limited liability company
-41-
By:
----------------------------------------
Its:
[SEAL]
-42-
APPENDIX "A"
The Facility Description
(attached)
EXHIBIT 3.1
ADVERSE INTERESTS
EXHIBIT 3.2
LICENSES, AGREEMENTS AND SURVEYS
EXHIBIT H
ORGANIZATIONAL CHART
--------------------------- ------------------------------------- --------------------
Senior Health Management, WKTM-Florida, LLC, a
LLC, a Pennsylvania limited Sun Coast Nursing Centers, Inc., a Delaware limited
liability company Delaware corporation liability company
--------------------------- ------------------------------------- --------------------
100% 100% Master Lease
--------------------------- -------------------------------------
Senior Health Management- Florida Institute for Long Term Care,
Gold Coast, LLC, a Florida LLC, a Delaware limited liability
limited liability company company
--------------------------- -------------------------------------
-------------------------------------
FI-Bay Pointe, LLC
-------------------------------------
-------------------------------------
FI-Boca Raton, LLC
-------------------------------------
-------------------------------------
FI-Broward Nursing,LLC
-------------------------------------
-------------------------------------
FI-Cape Coral, LLC
-------------------------------------
-------------------------------------
FI-Carrollwood Care, LLC
-------------------------------------
-------------------------------------
FI-Casa Xxxx, LLC
-------------------------------------
-------------------------------------
FI-Evergreen Xxxxx, LLC
-------------------------------------
-------------------------------------
FI-Highland Pines, LLC
-------------------------------------
-------------------------------------
FI-Highland Terrace, LLC
-------------------------------------
18
Management Agreements 100% Subleases
-------------------------------------
FI-Palm Beaches, LLC
-------------------------------------
-------------------------------------
FI-Pompano Rehab, LLC
-------------------------------------
-------------------------------------
FI-The Abbey, LLC
-------------------------------------
-------------------------------------
FI-Xxxxxxx Rehab, LLC
-------------------------------------
-------------------------------------
FI-Tampa, LLC
-------------------------------------
-------------------------------------
FI-Titusville, LLC
-------------------------------------
-------------------------------------
FI-Waldemere, LLC
-------------------------------------
-------------------------------------
FI-Windsor Xxxxx, LLC
-------------------------------------
-------------------------------------
FI-Xxxxxxx Court, LLC
-------------------------------------
-------------------------------------
FI-The Oaks, LLC*
-------------------------------------
Ownership relationship
Contractual relationship
Note: All FI entities are Florida limited liability companies
* FI-The Oaks, LLC will enter into a sublease agreement with Kindred Nursing
Centers East, LLC
EXHIBIT I
INSURANCE POLICIES
Exhibit I
Insurance Requirements During the Term
A. General Insurance Requirements. During the Term, Subtenant shall at all times
keep the Leased Premises, and all property located in or on the Leased Premises,
including "Leasehold Improvements," "Fixtures" and "Personal Property," of the
Subtenant, as such terms are defined in the Master Lease, insured with the kinds
and amounts of insurance described below. The policies must name as loss payee,
by way of a standard form of mortgagee's loss payable endorsement (i) Fee
Mortgagee, or (ii) if no mortgage encumbers the fee interest in the Leased
Premises, Prime Landlord and, in the case of any commercial general liability
and/or umbrella liability insurance coverages, must name Prime Landlord and each
Facility Mortgagee as additional insureds. Losses shall be payable to Prime
Landlord and/or Facility Mortgagee as provided in Article XIV of the Master
Lease. Any loss adjustment shall require the written consent of Sublandlord (to
be withheld in its sole discretion), whenever the loss exceeds ten percent (10%)
of the Fair Market Value of the Leased Premises. Evidence of insurance shall be
deposited with Sublandlord and, if requested, with any Leasehold Mortgagee and
Facility Mortgagee. If any provision of any Facility Mortgage requires deposits
of insurance premiums to be made with such Facility Mortgagee, Subtenant shall
either pay to Sublandlord monthly the amounts required and Sublandlord shall
transfer such amounts to each Facility Mortgagee, or, pursuant to written
direction by Sublandlord, Subtenant shall make such deposits directly with Prime
Landlord or such Facility Mortgagee. The policies on the Leased Premises,
including the "Leasehold Improvements," "Fixtures" and "Personal Property" of
Subtenant, shall insure against the following risks:
1. Loss or damage by fire, vandalism and malicious mischief, extended
coverage perils commonly known as "All Risk", including flood, the backup of
sewers and drains, earthquake, breakage of plate glass and all physical loss
perils including but not limited to sprinkler leakage, in an amount not less
than one hundred percent (100%) of the then full replacement cost thereof (as
defined below in Section B), subject to no coinsurance requirement or on an
agreed amount basis;
2. Broad form comprehensive boiler and machinery insurance, on a blanket
repair and replace basis, with limits for each accident in an amount not less
than one hundred percent (100%) of the then full replacement cost (as defined in
Section B) of the Leased Premises;
3. Business Interruption insurance on a Business Interruption, Gross
Profits or Gross Rents form, including all standing charges, with a period of
indemnity of no less than twelve (12) months, resulting from loss or damage as
described in Section A.1 or A.2 above, subject to no coinsurance requirement or
on an agreed amount basis;
4. Claims for bodily injury, including death resulting therefrom, personal
injury and property damage on an occurrence basis, under a policy of commercial
general liability ("CGL") insurance (including, without limitation, broad form
property damage and broad form contractual liability) for a limit of not less
than One-Hundred Thousand and No/100 Dollars ($100,000.00) per occurrence, and
One-Hundred Thousand and No/100 Dollars ($100,000.00) in the aggregate, with a
deductible of no more than Fifty Thousand and No/100 Dollars ($50,000.00) per
occurrence. Relative to the insurance referenced in this Section A.4, Subtenant
shall be permitted to use a claims made policy form rather than an occurrence
based policy form with the consent of Sublandlord, to be given or withheld in
its sole discretion.
5. Claims arising out of malpractice in an amount not less than One-Hundred
Thousand and No/100 Dollars ($100,000.00) per claim or injury and in the
aggregate, with a deductible of no more than Fifty Thousand and No/100 Dollars
($50,000.00) per claim or injury;
6. Claims arising out of directors and officers liability in an amount not
less than One Million and No/100 Dollars ($1,000,000.00) per claim and in the
aggregate, with a deductible of no more than $100,000 ($250,000 for employment
practices liability insurance);
7. Claims arising out of commercial automobile liability in an amount not
less than One Million and No/100 Dollars ($1,000,000.00) per claim and in the
aggregate for bodily injury and property damage with no deductible;
8. Loss or damage commonly covered by blanket crime insurance including
employee dishonesty, loss of money orders or paper currency, depositor's
forgery, in commercially reasonable amounts acceptable to Sublandlord for a
limit of not less than Eight-Hundred Thousand and No/100 Dollars ($800,000.00)
with a deductible of no more than Ten Thousand and No/100 ($10,000.00) per
claim.
B. Replacement Cost. The term "full replacement cost," as used herein, shall
mean the actual replacement cost of the property requiring replacement from time
to time including an increased cost of construction endorsement, without
reduction or deduction for depreciation. Subtenant shall have the full
replacement cost redetermined by an accredited appraiser approved by Sublandlord
(which approval may be withheld in Sublandlord's sole discretion), hereinafter
referred to as "impartial appraiser", anytime that Sublandlord is required to do
so pursuant to Section 13.2 of the Master Lease, and at such other times that
either party believes that full replacement cost has increased or decreased.
Subtenant shall forthwith, on receipt of such determination by such impartial
appraiser, give written notice thereof to Sublandlord. The determination of such
impartial appraiser shall be final and binding on the parties hereto, and
Subtenant shall forthwith increase, or may decrease, the amount of the insurance
carried pursuant to this Section, as the case may be, to the amount so
determined by the impartial appraiser. Each party shall pay one-half (1/2) of
the fee, if any, of the impartial appraiser.
C. Additional Insurance. In addition to the insurance described above, Subtenant
shall maintain such additional insurance as may reasonably be required from time
to time by any Facility Mortgagee and, further, shall at all times maintain
adequate worker's compensation insurance coverage for all persons employed by
Subtenant on each Leased Property. Such worker's compensation insurance shall be
in accordance with the requirements of applicable local, state and federal law.
D. Waiver of Subrogation. Sublandlord and Subtenant agree that (insofar as and
to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in the State) with respect to any property loss that is
covered by insurance then being carried by Sublandlord
2
and Subtenant, respectively, the party carrying such insurance and suffering
said loss releases the other of and from any and all claims with respect to such
loss where such insurance is valid and collectible respecting any such loss; and
they further agree that their respective insurance companies shall have no right
of subrogation against the other on account thereof, even though extra premium
may result therefrom. Nothing contained herein is intended, nor shall it be
construed, to require that Sublandlord maintain any insurance coverage.
E. Form Satisfactory, etc. All of the policies of insurance referred to in this
Section shall be written in form satisfactory to Sublandlord and any Facility
Mortgagee and by insurance companies (i) authorized to do insurance business in
the State of Florida, (ii) satisfactory to Sublandlord and any Facility
Mortgagee, and (iii) with the claims-paying ability ratings set forth in
Paragraph J of this Schedule 1. Subtenant shall pay all of the premiums therefor
not later than the earlier of the date which is ten (10) days after Subtenant's
receipt of an invoice therefor or the due date of the applicable premium, and
shall deliver such policies or certificates thereof to Sublandlord prior to
their effective date (and, with respect to any renewal policy, prior to the
expiration of the existing policy), and in the event of the failure of Subtenant
either to effect such insurance in the names herein called for or to pay the
premiums therefor, or to deliver such policies or certificates thereof to Prime
Landlord, Sublandlord and each Facility Mortgagee at the times required,
Sublandlord shall be entitled, but shall have no obligation, to effect such
insurance and pay the premiums therefor, which premiums shall be repayable to
Sublandlord upon written demand therefor, and failure to repay the same shall
constitute an Event of Default by Subtenant within the meaning of Section
16.1(c) of the Master Lease. Each insurer mentioned in this Section shall agree,
by endorsement on the policy or policies issued by it, or by independent
instrument furnished to Sublandlord and any Facility Mortgagee, that it will
give to Sublandlord thirty (30) days' written notice before the policy or
policies in question shall be materially altered, allowed to expire or canceled.
F. Limits; Deductibles. In the event that either party shall at any time deem
the limits of the personal injury or property damage public liability insurance
then carried to be either excessive or insufficient or in the event that
Sublandlord shall at any time deem the deductible amount under any insurance
then carried by Subtenant pursuant to this Schedule 1 to be excessive, the
parties shall endeavor to agree on the proper and reasonable limits or
deductible amount, as applicable, for such insurance to be carried; and such
insurance shall thereafter be carried with the limits or deductible amount, as
applicable, thus agreed on until further change pursuant to the provisions of
this Section. Nothing herein shall permit the amount of insurance to be reduced
below, or the deductible amount under any insurance carried by Subtenant
pursuant to this Schedule I to be increased above, the amount or amounts
required by any Facility Mortgagee.
G. Blanket Policy. Notwithstanding anything to the contrary contained in this
Section but subject to any requirements of any applicable Facility Mortgagee,
Subtenant's obligations to carry the insurance provided for herein may be
brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Subtenant; provided, however, that the
coverage afforded Sublandlord will not be reduced or diminished or otherwise be
different from that which would exist under a separate policy meeting all other
requirements of this Sublease by reason of the use of such blanket policy of
insurance, and provided further that the requirements of this Schedule 1 are
otherwise satisfied.
3
H. No Separate Insurance. Subtenant shall not on Subtenant's own initiative or
pursuant to the request or requirement of any third party, take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this Schedule 1, or increase the amounts of any then existing
insurance by securing an additional policy or additional policies, unless all
parties having an insurable interest in the subject matter of the insurance,
including in all cases Sublandlord, Prime Landlord and all Facility Mortgagees,
are included therein as additional insureds, and the loss is payable under said
insurance in the same manner as losses are payable under this Sublease.
Subtenant shall immediately notify Sublandlord of the taking out of any such
separate insurance or of the increasing of any of the amounts of the then
existing insurance by securing an additional policy or additional policies.
I. Survival. All of Subtenant's obligations under this Schedule 1 or otherwise
relating to obtaining, and maintaining, claims made coverages, and/or switching
back to occurrence based coverage, shall survive the expiration or termination
of this Sublease as it applies to any or all of the Leased Premises.
J. Ratings Requirements. Any insurance, or portion thereof, required by this
Schedule 1 shall be with carriers, which are licensed to do business in the
jurisdiction in which the Leased Premises is located, and (with the exception of
commercial general liability insurance and malpractice insurance, which may be
insured with Mature Care Insurance Company) shall be with (a) the same carriers
which provide the applicable insurance coverage to Kindred, or (b) carriers
which have a claims-paying ability rating at least as high as the rating
required by any applicable Facility Mortgagee but in no event less than a
claims-paying ability rating by S&P of "A", by Xxxxx'x of "A3" and by A.M. Best
Company, Inc. of not less than A (and an A.M. Best Company, Inc. financial size
category of not less than VIII).
4
SCHEDULE I: LIST OF FACILITES
A. LIST OF VENTAS FACILITES
Bay Pointe Nursing Pavilion
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Carrollwood Care Center
00000 Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Casa Xxxx Rehabilitation & Extended Care
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Evergreen Xxxxx Health & Rehabilitation Center
0000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Healthcare and Rehabilitation of Xxxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 3277
Highland Pines Rehabilitation & Nursing Center
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000*
Kindred Rehabilitation & Nursing Center of Broward
000 Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Pompano Rehabilitation & Nursing Center
00 Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Rehabilitation & Healthcare Center of Cape Coral
0000 Xxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Rehabilitation & Healthcare Center of Tampa
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
----------
* Please note that Highland Pines Rehabilitation & Nursing Center is one
facility under the Ventas Master Lease, but following the Transaction, will be
operated as two separate Facilities, called Highland Pines Rehabilitation &
Nursing Center and Highland Terrace Rehabilitation & Nursing Center,
respectively, by separate New Operators and pursuant to separate licenses.
The Abbey Rehabilitation & Nursing Center
0000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Titusville Rehabilitation & Nursing Center
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Waldemere Place
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Windsor Xxxxx Rehabilitation & Healthcare Center
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx Court
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
B. FAIRHAVEN FACILITY
The Oaks at Avon
0000 XX 00 Xxxxx
Xxxx Xxxx, XX 00000
C. LIST OF OWNED FACILITIES
Boca Raton Rehabilitation Center
000 Xxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
The Rehabilitation Center of the Palm Beaches
000 Xxxxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
SCHEDULE 2.03(b)(ii)
PURCHASE PRICE FOR TRANSFERRED ASSETS
Florida Transaction
Preliminary Closing Statement
Schedule 2.03(b)(ii)
As of May 31,
2003
-------------
Inventory 457,586
Prepaids --
Net Book Value of Equipment 2,228,824
DSI Labs Deposit 5,000
Amounts Due From Employees For Benefits In Arrears 15,000
Accounts Receivable 9,000,000
Credit for Retained Equipment (76,209)
Credit for Vacation Benefits (1,199,853)
Credit for Sick Benefits (284,270)
Credit for Personal Leave Benefits (231,455)
Credit for PTO Benefits (849,297)
----------
Total Due To (From) Kindred 9,065,325
==========
Note: To be updated pre and post closing.
INVENTORY
FLORIDA FACILITIES
DECEMBER 2002
Schedule 3.01(a)
Calculated
Inventory
Fac Fac Name Med Supplies Food Xxx / Xxx Kitchen Maint/Hskp Forms/Rec Total
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXX XXXXXX XX XXXX XXXXXXX 7,664.43 3,114.44 5,966.73 767.26 1,895.90 600.00 20,008.76
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXXXXX XX (EAST MANOR) 5,393.80 2,191.77 10,185.63 539.96 1,334.23 600.00 20,245.39
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXXXX XX 8,829.29 3,587.78 6,870.78 883.87 2,184.05 600.00 22,955.77
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXXXXXXX XX 11,142.12 4,527.60 9,462.39 1,115.40 2,756.16 600.00 29,603.67
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXXX XX-XXXXXXX XXXXX 7,841.69 3,186.47 6,207.81 785.01 1,939.75 600.00 20,560.73
---------------------------------------------------------------------------------------------------------------------------------
000 XX XXXXXXXXXX XX (XXX XXXXXX) 7,537.81 3,062.99 7,232.40 754.59 1,864.58 600.00 21,052.37
---------------------------------------------------------------------------------------------------------------------------------
246 OAKS AT AVON NURSING AND REHAB 8,424.12 3,423.14 6,268.08 843.31 2,083.82 600.00 21,642.47
---------------------------------------------------------------------------------------------------------------------------------
000 XXXX XXXXXX XX (XXX XXXXXX) 9,521.45 3,869.04 7,232.40 953.16 2,355.26 600.00 24,531.31
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXX XX - CARROLLW00D 9,994.14 4,061.12 7,232.40 1,000.48 2,472.19 600.00 25,360.33
---------------------------------------------------------------------------------------------------------------------------------
610 BOCA RATON REHAB CTR 8,609.82 3,498.60 7,232.40 861.90 2,129.76 600.00 22,932.48
---------------------------------------------------------------------------------------------------------------------------------
000 XXXXXX XXXX XX (XXXXXXXXX XXXXX) 9,529.89 3,872.47 7,232.40 954.01 2,357.35 600.00 24,546.12
---------------------------------------------------------------------------------------------------------------------------------
836 HILLHAVEN REHAB CENTER 14,130.23 5,741.82 10,486.98 1,414.53 3,495.31 600.00 35,868.87
---------------------------------------------------------------------------------------------------------------------------------
837 CAPE CORAL FL 9,850.65 4,002.81 7,232.40 986.12 2,436.70 600.00 25,108.68
---------------------------------------------------------------------------------------------------------------------------------
1217 BRADENTON FL - CASA XXXX REHAB 10,509.05 4,270.35 14,464.80 1,052.03 2,599.56 600.00 33,495.79
---------------------------------------------------------------------------------------------------------------------------------
1218 POMPANO BEACH FL - NORTH BROWARD 13,151.08 5,343.94 11,692.38 1,316.51 3,253.10 600.00 35,357.01
---------------------------------------------------------------------------------------------------------------------------------
0000 XXXXXXXXXX XX - XXXXXXXX XXXXX 11,403.79 4,633.93 11,451.30 1,141.60 2,820.89 600.00 32,051.51
---------------------------------------------------------------------------------------------------------------------------------
1232 POMPANO BEACH FL - POMPANO REHAB 7,951.42 3,231.06 7,654.29 795.99 1,966.90 600.00 22,199.66
---------------------------------------------------------------------------------------------------------------------------------
0000 XX. XXXXXXXXXX XX - ABBEY REHAB 5,874.94 2,387.28 9,161.04 588.12 1,453.25 600.00 20,064.63
---------------------------------------------------------------------------------------------------------------------------------
Total 18 Florida Facilities 167,359.72 68,006.61 153,266.61 16,753.85 41,398.76 10,800.00 457,585.55
======================================================================================
Kindred Healthcare, Inc.
Florida Nursing Center Book Value 02/28/03
Facility Name Facility # Asset Category Cost A/D NBV
---------------------- ---------- -------------- --------- -------- ---------
Waldemere Place 117 Major Moveable 65,354 (16,554) 48,800
Computer 4,672 (2,192) 2,479
Facility Total 70,026 (18,747) 51,279
--------------------------------
Sanford Healthcare 124 Major Moveable 45,968 (11,979) 33,989
Computer 4,880 (2,070) 2,811
Facility Total 50,848 (14,049) 36,800
--------------------------------
Titusville Rehab 125 Major Moveable 78,684 (18,467) 60,217
Computer 8,531 (3,406) 5,124
Facility Total 87,215 (21,874) 65,341
--------------------------------
Windsor Xxxxx Rehab 181 Major Moveable 51,056 (10,843) 40,213
Computer 5,904 (2,100) 3,804
Facility Total 56,960 (12,943) 44,017
--------------------------------
Bay Pointe Nursing Ctr 245 Major Moveable 63,408 (14,839) 48,569
Computer 4,876 (2,204) 2,672
Facility Total 68,284 (17,043) 51,242
--------------------------------
Xxxxxxx Court 268 Major Moveable 51,710 (12,917) 38,793
Computer 5,799 (2,567) 3,232
Facility Total 57,508 (15,484) 42,024
--------------------------------
Carrollwood Care Ctr 372 Major Moveable 55,880 (12,839) 43,041
Computer 4,109 (1,932) 2,177
Facility Total 59,989 (14,771) 45,218
--------------------------------
Evergreen Xxxxx 637 Major Moveable 325,599 (89,146) 236,454
Computer 6,930 (2,736) 4,194
Facility Total 332,530 (91,882) 240,648
--------------------------------
Rehab Ctr Tampa 836 Major Moveable 84,709 (17,985) 66,724
Computer 6,305 (2,340) 3,965
Facility Total 91,015 (20,325) 70,690
--------------------------------
Rehab Ctr Cape Coral 837 Major Moveable 67,043 (14,556) 52,487
Computer 7,897 (3,382) 4,515
CIP 55,780 55,780
Facility Total 130,720 (17,938) 112,782
--------------------------------
Casa Xxxx Rehab 1217 Major Moveable 110,797 (25,284) 85,513
Computer 7,082 (2,713) 4,370
Facility Total 117,879 (27,996) 89,883
--------------------------------
Xxxxx Xxx Xxxxxxx 0000 Major Moveable 114,179 (27,292) 86,887
Computer 10,436 (4,474) 5,961
CIP 69,864 69,864
Facility Total 194,479 (31,767) 162,712
--------------------------------
Highland Pines Rehab 1220 Major Moveable 119,171 (14,768) 104,403
Computer 9,794 (2,668) 7,126
Facility Total 128,965 (17,436) 111,529
--------------------------------
1
Facility Name Facility # Asset Category Cost A/D NBV
---------------------- ---------- -------------- --------- -------- ---------
Pompano Rehab 1232 Major Moveable 76,793 (15,516) 61,277
Computer 7,987 (2,813) 5,174
Facility Total 84,780 (18,329) 66,451
--------------------------------
Abby Rehab 1233 Major Moveable 91,081 (26,102) 64,979
Computer 5,868 (2,202) 3,666
Facility Total 96,948 (28,303) 68,645
--------------------------------
Oaks at Avon 246 Major Moveable 247,534 (79,569) 167,966
Computer 6,438 (2,883) 3,555
Facility Total 253,972 (82,452) 171,520
--------------------------------
Rehab Ctr Palm Beaches 115 Major Moveable 462,018 (86,602) 375,416
Computer 4,373 (1,618) 2,755
Facility Total 466,391 (88,220) 378,172
--------------------------------
Boco Raton Rehab Ctr 610 Major Moveable 253,022 (65,167) 187,855
Computer 4,206 (1,990) 2,216
Facility Total 257,227 (67,157) 190,070
--------------------------------
Grand Totals Major Moveable 2,364,007 (560,424) 1,803,584
Computer 116,086 (46,290) 69,796
CIP 125,644 125,644
Total 2,605,738 (606,714) 1,999,024
================================
2
Kindred Florida
Vacation Balances
Schedule 3.01(a)
$ Unearned Effective
Facility Hr Unearn $un @100% $ Available Hr Avail GL Liability Total Hr Total $ Date
------------------------------------------------------------------------------------------------------------------------------
Totals for 0115 3,423.04 44,832.87 34,316.60 2,401.57 28423.74 5,824.61 79,149.47 3/6/2003
Totals for 0117 1,900.79 26,378.32 32,744.74 2,183.99 16724.07 4,084.78 59,123.06 3/6/2003
Totals for 0124 2,859.41 36,273.65 36,774.76 2,935.30 22997.82 5,794.71 73,048.41 3/6/2003
Totals for 0125 5,207.62 70,688.57 58,987.99 4,491.74 44816.50 9,699.36 129,676.56 3/6/2003
Totals for 0181 2,229.49 27,761.03 30,153.91 2,279.47 17600.25 4,508.96 57,914.94 3/6/2003
Totals for 0245 2,104.88 30,739.34 31,881.19 2,420.04 19488.60 4,524.92 62,620.53 3/6/2003
Totals for 0246 2,771.43 34,279.07 35,754.99 2,666.32 21733.40 5,437.75 70,034.06 3/6/2003
Totals for 0268 2,303.78 34,394.91 28,253.60 1,811.75 21806.97 4,115.53 62,648.51 3/6/2003
Totals for 0372 3,534.00 48,626.98 51,575.59 3,592.48 30829.37 7,126.48 100,202.57 3/6/2003
Totals for 0610 2,982.74 42,627.89 60,836.19 3,886.77 27026.23 6,869.51 103,464.08 3/6/2003
Totals for 0637 3,648.79 48,565.45 48,919.15 3,605.15 30790.89 7,253.94 97,484.60 3/6/2003
Totals for 0836 7,172.58 94,883.77 55,506.06 4,283.65 60156.54 11,456.23 150,389.83 3/6/2003
Totals for 0837 2,604.96 35,646.71 65,504.34 4,563.89 22600.34 7,168.85 101,151.05 3/6/2003
Totals for 1217 3,831.65 47,319.41 86,790.57 6,169.52 30000.08 10,001.17 134,109.98 3/15/2003
Totals for 1218 4,743.60 61,711.77 89,782.76 6,795.87 39125.28 11,539.47 151,494.53 3/15/2003
Totals for 1220 2,217.28 30,683.65 32,569.56 2,418.17 19453.79 4,635.45 63,253.21 3/15/2003
Totals for 1232 2,329.15 30,938.77 37,030.80 2,596.55 19615.06 4,925.70 67,969.57 3/15/2003
Totals for 1233 1,633.31 22,955.66 26,299.07 1,588.80 14554.27 3,222.11 49,254.73 3/15/2003
-------------------------------------------------------------------------------------------
Vacation Grand Total 57,498.50 769,307.82 826,806.32 60,691.03 487,743.20 118,189.53 1,612,989.69
-------------------------------------------------------------------------------============
Kindred Florida
Sick Balances
Schedule 3.01(a)
$ Unearned Effective
Facility Hr Unearn $un @100% $ Available Hr Avail GL Liability Total Hr Total $ Date
-----------------------------------------------------------------------------------------------------------------------
Totals for 0115 14.67 110.37 13,056.54 1,334.80 110.37 1,349.47 13,166.91 3/6/2003
Totals for 0117 -- -- 33,991.12 2,585.10 -- 2,585.10 33,991.12 3/6/2003
Totals for 0124 -- -- 2,698.60 211.18 -- 211.18 2,698.60 3/6/2003
Totals for 0125 166.30 2,008.82 99,554.39 7,051.70 2,008.82 7,218.00 101,563.21 3/6/2003
Totals for 0181 -- -- 7,344.09 630.45 -- 630.45 7,344.09 3/6/2003
Totals for 0245 -- -- 22,965.15 1,897.64 -- 1,897.64 22,965.15 3/6/2003
Totals for 0246 -- -- 1,646.73 90.97 -- 90.97 1,646.73 3/6/2003
Totals for 0268 -- -- 32.66 2.82 -- 2.82 32.66 3/6/2003
Totals for 0372 -- -- 22,277.48 1,603.92 -- 1,603.92 22,277.48 3/6/2003
Totals for 0610 -- -- 11,501.40 783.73 -- 783.73 11,501.40 3/6/2003
Totals for 0637 -- -- 19,510.65 1,841.22 -- 1,841.22 19,510.65 3/6/2003
Totals for 0836 -- -- 54,464.43 4,236.42 -- 4,236.42 54,464.43 3/6/2003
Totals for 0837 -- -- 12,680.62 896.20 -- 896.20 12,680.62 3/6/2003
Totals for 1217 -- -- 726.70 41.67 -- 41.67 726.70 3/15/2003
Totals for 1218 -- -- 312.14 25.59 -- 25.59 312.14 3/15/2003
Totals for 1220 -- -- 390.94 31.57 -- 31.57 390.94 3/15/2003
Totals for 1232 -- -- 3/15/2003
Totals for 1233 -- -- 1,458.48 59.76 -- 59.76 1,458.48 3/15/2003
----------------------------------------------------------------------------------------
Sick Grand Total 180.97 2,119.19 304,612.12 23,324.74 2,119.19 23,505.71 306,731.31
------------------------------------------------------------------------------==========
Kindred Florida
PTO Balances
Schedule 3.01(a)
$ Unearned Effective
Facility Hr Unearn $un @100% $ Available Hr Avail GL Liability Total Hr Total $ Date
---------------------------------------------------------------------------------------------------------------------
Totals for 0115 -- -- 3/6/2003
Totals for 0117 1,933.68 26,169.90 -- -- 26,169.90 1,933.68 26,169.90 3/6/2003
Totals for 0124 2,598.84 33,149.20 -- -- 33,149.20 2,598.84 33,149.20 3/6/2003
Totals for 0125 26.27 422.93 -- -- 422.93 26.27 422.93 3/6/2003
Totals for 0181 1,847.61 23,545.47 -- -- 23,545.47 1,847.61 23,545.47 3/6/2003
Totals for 0245 2,156.44 28,537.54 -- -- 28,537.54 2,156.44 28,537.54 3/6/2003
Totals for 0246 2,609.92 33,223.68 -- -- 33,223.68 2,609.92 33,223.68 3/6/2003
Totals for 0268 2,491.42 35,178.30 -- -- 35,178.30 2,491.42 35,178.30 3/6/2003
Totals for 0372 3,076.04 40,163.00 -- -- 40,163.00 3,076.04 40,163.00 3/6/2003
Totals for 0610 2,833.29 38,550.43 -- -- 38,550.43 2,833.29 38,550.43 3/6/2003
Totals for 0637 3,107.23 40,235.63 -- -- 40,235.63 3,107.23 40,235.63 3/6/2003
Totals for 0836 -- -- 3/6/2003
Totals for 0837 2,889.63 38,807.23 -- -- 38,807.23 2,889.63 38,807.23 3/6/2003
Totals for 1217 4,670.48 58,706.26 -- -- 58,706.26 4,670.48 58,706.26 3/15/2003
Totals for 1218 5,714.11 76,692.05 -- -- 76,692.05 5,714.11 76,692.05 3/15/2003
Totals for 1220 2,973.84 40,153.39 -- -- 40,153.39 2,973.84 40,153.39 3/15/2003
Totals for 1232 2,827.42 38,809.76 -- -- 38,809.76 2,827.42 38,809.76 3/15/2003
Totals for 1233 2,146.55 29,191.70 -- -- 29,191.70 2,146.55 29,191.70 3/15/2003
---------------------------------------------------------------------------------------
PTO Grand Total 43,902.77 581,536.47 -- -- 581,536.47 43,902.77 581,536.47
-----------------------------------------------------------------------------==========
Kindred Florida
Personal Leave Balances
Schedule 3.01(a)
$ Unearned Effective
Facility Hr Unearn $un @100% $ Available Hr Avail GL Liability Total Hr Total $ Date
-----------------------------------------------------------------------------------------------------------------------
Totals for 0115 24.41 521.90 17,543.50 886.79 330.96 911.20 18,065.40 3/6/2003
Totals for 0117 7.68 75.65 10,310.09 811.78 47.96 819.46 10,385.74 3/6/2003
Totals for 0124 5.69 73.58 12,075.84 912.19 46.66 917.88 12,149.42 3/6/2003
Totals for 0125 -- -- 901.17 53.34 -- 53.34 901.17 3/6/2003
Totals for 0181 2.15 13.87 12,648.87 968.84 8.77 970.99 12,662.74 3/6/2003
Totals for 0245 3.32 35.59 10,316.87 681.71 22.62 685.03 10,352.46 3/6/2003
Totals for 0246 2.38 18.05 15,992.07 1,202.08 11.45 1,204.46 16,010.12 3/6/2003
Totals for 0268 10.45 110.23 18,474.96 1,208.75 69.96 1,219.20 18,585.19 3/6/2003
Totals for 0372 -- -- 28,491.54 1,731.83 -- 1,731.83 28,491.54 3/6/2003
Totals for 0610 14.38 112.27 18,580.75 1,204.61 71.12 1,218.99 18,693.02 3/6/2003
Totals for 0637 6.55 76.71 26,301.47 1,762.71 48.60 1,769.26 26,378.18 3/6/2003
Totals for 0836 185.54 2,240.72 37,107.68 2,716.13 1,420.61 2,901.67 39,348.40 3/6/2003
Totals for 0837 2.75 28.46 25,057.81 1,872.14 18.02 1,874.89 25,086.27 3/6/2003
Totals for 1217 -- 41.42 11,641.78 882.94 26.30 882.94 11,683.20 3/15/52003
Totals for 1218 -- 66.64 28,158.97 2,143.90 42.40 2,143.90 28,225.61 3/15/52003
Totals for 1220 -- 46.07 11,953.64 960.34 29.24 960.34 11,999.71 3/15/52003
Totals for 1232 -- 39.73 16,397.72 1,064.70 25.20 1,064.70 16,437.45 3/15/52003
Totals for 1233 -- 97.13 14,039.63 872.73 61.46 872.73 14,136.76 3/15/52003
---------------------------------------------------------------------------------------
PLSV Grand Total 265.30 3,598.02 315,994.36 21,937.51 2,281.33 22,202.81 319,592.38
-----------------------------------------------------------------------------==========
SCHEDULE 3.01(a)(ii)
PERSONAL PROPERTY RELATING TO EACH FACILITY
Schedule 3.01(a)(ii) was sent to Xxxxxxxx Xxxxxxxxx of Xxxxxxx, Xxxxx & Xxxxx,
P.C. by Xxxxxxx Xxxx of Kindred on March 11, 2003. Due its size it is not
attached directly hereto.
SCHEDULE 3.01(b)(iv)
RETAINED PERSONAL PROPERTY
None, other than computer software and systems as provided in Section
3.01(b)(v).
SCHEDULE 3.02(a)
PATIENT CENSUS
Schedule 3.02(a) was sent to Xxxxxxxx Xxxxxxxxx of Xxxxxxx, Xxxxx & Xxxxx, P.C.
by Xxxxxxx Xxxx of Kindred on March 19, 2003. Due its size it is not attached
directly hereto.
SCHEDULE 3.02(b)
PATIENT TRUST FUNDS
Schedule 3.02(b) was sent to Xxxxxxxx Xxxxxxxxx of Xxxxxxx, Xxxxx & Xxxxx, P.C.
by Xxxxxxx Xxxx of Kindred on February 28, 2003. Due its size it is not attached
directly hereto.
SCHEDULE 3.02(c)
PATIENT INVENTORY
Schedule 3.02(c) was sent to Xxxxxxxx Xxxxxxxxx of Xxxxxxx, Xxxxx & Xxxxx, P.C.
by Xxxxxxx Xxxx of Kindred on April 21, 2003. Due its size it is not attached
directly hereto.
SCHEDULE 3.03(a)
UNPAID ACCOUNTS RECEIVABLE
Schedule 3.03(a) was sent to Xxxxxxx Xxxxx of Xxxxxxx, Xxxxx & Xxxxx, P.C. by
Xxxxxx Xxxxxxxxxx of Kindred on June 17, 2003. Due its size it is not attached
directly hereto.
SCHEDULE 3.05
ASSUMED FACILITY CONTRACTS
SCHEDULE 3.05
ASSUMED FACILITY CONTRACTS
Waldemere Place
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Hospice Contract pursuant to East Manor Medical Care Center 7/1/01 Automatic renewal; This Agreement may
services provided by the Hospice and Hospice of Southwest Florida, terminate with or without cause, by
and the Facility Inc. giving 30 days advance written notice to
the other party.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Laboratory East Manor Medical Care Center 7/13/01 Expired.
Services and Midwest Medical Laboratory
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional East Manor Medical Care Center 8/1/86 Automatic renewal; This Agreement may be
Consulting and Advisory Services and Xxxxx X. Xxxxxx M.D. terminated by either party for good
cause upon 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx' Mobile Diagnostics East Manor Medical Care Center 4/18/00 Automatic renewal; This Contract may be
Contract and Xxxxxxx' Mobile Diagnostics canceled by either party with or without
cause, upon a 30 day written notice to
the other party.
------------------------------------------------------------------------------------------------------------------------------
Independent Contractor Agreement East Manor Medical Care Center 9/26/00 Automatic renewal; This Agreement may
and Xxxxxxx X. Xxxxxxx, M.S. be terminated by either party by giving
30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Contract for Ophthalmic Services East Manor Medical Care Center 3/10/99 This Agreement shall remain in force for
and Ophthalmic Consultants to 1 year, and thereafter, indefinitely.
Nursing Facilities Either party may terminate this notice
by providing the other party with a 30
days written notice.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement East Manor Medical Care Center 8/1/98 5 year period and thereafter
and Vencor Hospital Tampa automatically renewed unless notice of
non-renewal is provided not less than 90
days prior to the end of a term. It may
also be terminated earlier if either
party materially breaches this
Agreement.
------------------------------------------------------------------------------------------------------------------------------
Geriatric Psychological East Manor Medical Care Center 6/1/99 Automatic renewal; Initial period of 2
Specialists Mental Health Services and Geriatric Psychological years unless either party elects to
Agreement Specialists terminate this Agreement at the end of
the original or any renewal term by
giving written notice to the other party
at least 30 days prior to the expiration
of the then current term.
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services and East Manor Medical Care Center 1/1/98 Initial period of 5 years. Thereafter it
Consulting Agreement and Vencare Pharmacy Services will be renewed automatically unless
terminated by Pharmacy on account of
Facility's failure to pay outstanding
bills.
------------------------------------------------------------------------------------------------------------------------------
Facility Consulting Agreement Waldemere Place and Xxxxxxxx & 5/16/02 Automatic renewal; Until 30 days after
Associates Consulting Dietitians, written notice of termination from
Inc. either party.
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Lease Agreement Addendum Pitney Xxxxx Credit 12/10/96 Unknown.
Adjustment for Meter Rental Corporation and Vencor, Inc.
Agreement #2338 (117)
------------------------------------------------------------------------------------------------------------------------------
Addendum to Service Agreement / East Manor Medical Care Center 6/1/00 Automatic renewal; This Agreement may be
Equipment Lease and Air Touch Pagings terminated with 30 days advance written
notice.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement Non Hazardous East Manor Medical Care Center 8/31/02 Initial period is 36 months from the
Wastes & Recyclables and Waste Management of Sarasota date set forth. Thereafter 12 months.
County
------------------------------------------------------------------------------------------------------------------------------
Cable Television Extension East Manor Medical Care Center 7/5/01 This Agreement is hereby extended for an
Agreement and Comcast Cablevision of additional three years commencing
West Florida, Inc. 10/1/01 through 9/30/04. Thereafter, the
Agreement shall be automatically renewed
for like terms, unless either party
provides written notice to the other of
its intent not to renew at least 90 days
prior to the expiration of the then
current term.
------------------------------------------------------------------------------------------------------------------------------
Pest Elimination Agreement East Manor Medical Care Center 11/19/99 Expired.
and Western Pest Services
------------------------------------------------------------------------------------------------------------------------------
Medical Oxygen and Healthcare East Manor Medical Care Center 9/26/00 Automatic renewal; This Agreement may be
Equipment Agreement for Services and Medox Corporation terminated upon 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Industrial Fire & Safety, Inc. East Manor Medical Care Center 1/15/99 Unknown.
Inspection Service Contract and Industrial Fire & Safety Inc.
------------------------------------------------------------------------------------------------------------------------------
2
Healthcare and Rehabilitation of Sanford
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Ashburry Water Healthcare & Rehab of Xxxxxxx and 8/9/01 Unknown.
Conditioning Ashburry Water Conditioning
------------------------------------------------------------------------------------------------------------------------------
Letter of Agreement for Consultant Healthcare & Rehabilitation 1/6/03 Unknown.
Dietitian Services Center of Xxxxxxx and Long Term
Care Nutrition, Inc.
------------------------------------------------------------------------------------------------------------------------------
Nursing Home Transfer Agreement Healthcare & Rehabilitation 7/31/02 This Agreement shall continue in effect
Center of Xxxxxxx and Adventist indefinitely unless either party cancels
Health System/Sunbelt, Inc. and this Agreement with or without cause, by
d/b/a Florida Hospital Orlando, giving 30 days written notice to the
Florida Hospital Altamonte, other party of its intention to do so.
Florida Hospital Apopka, Florida
Hospital East Orlando, Florida
Hospital Kissimmee, Celebration
Health, Winter Park Memorial
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement Hillhaven Healthcare Center and 6/1/90 Expired.
HCA Central Florida Regional
Hospital
------------------------------------------------------------------------------------------------------------------------------
Vitas HealthCare Corporation of Vitas HealthCare Corporation of 8/9/96 Initial period of 1 year and shall
Central Florida Agreement with Central Florida and Hillhaven continue automatically for successive 1
Hillhaven Health Care and Health Care and Rehabilitation year terms, unless terminated as
Rehabilitation Center of Xxxxxxx Center of Sanford provided in this Agreement.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Vitas Healthcare & Rehab of Xxxxxxx and 8/9/01 Unknown.
Healthcare Corp. of Central Vitas
Florida
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Hospice of the Health Care and Rehabilitation 8/9/01 Unknown.
Comforter (amending agreement Center of Sanford and Hospice of
made on 8/9/01) the Comforter
------------------------------------------------------------------------------------------------------------------------------
Skilled Nursing Facility Contract Healthcare and Rehabilitation of 8/23/02 Renewable each year unless terminated by
Xxxxxxx and Hospice of the either party with a 30 days written
Comforter, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Hospice of the Health Care and Rehabilitation 8/9/02 Unknown.
Comforter (amending agreement Center of Xxxxxxx and Hospice of
made on 8/9/02) the Comforter
------------------------------------------------------------------------------------------------------------------------------
Podiatry Services Agreement Health Care and Rehabilitation Undated Unknown.
Center of Xxxxxxx and Xxxx
Xxxxxxxxx, D.P.M.
------------------------------------------------------------------------------------------------------------------------------
Agreement by and between Orlando Health Care and Rehabilitation Undated Initial period of 1 year and renewable
Regional Healthcare System, Inc. Center of Xxxxxxx and Orlando after the initial period unless
and HealthCare & Rehabilitation Regional Healthcare System, Inc. terminated in accordance with the
Center of Xxxxxxx provisions provided in this Agreement.
------------------------------------------------------------------------------------------------------------------------------
3
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Consultant Health Care and Rehabilitation 3/1/97 Expires on 3/1/02 and shall be renewed
Pharmacist Services Center of Xxxxxxx and Vencor at the end of each period for an
Hospital South d/b/a Medisave additional 5 year period unless either
Pharmacy party notifies the other by a 30 day
written notice of their desire to
terminate this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Dialysis Services Agreement Health Care and Rehabilitation 1/2/02 This Agreement will remain in continuous
Center of Sanford and Central effect unless canceled by either party
Florida Kidney Center, Inc. with 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Central Florida Health Care and Rehabilitation 8/9/02 Unknown.
Kidney Center, Inc. Center of Sanford and Central
Florida Kidney Center, Inc.
------------------------------------------------------------------------------------------------------------------------------
Managed Service Agreement Health Care and Rehabilitation 9/21//00 This Agreement will continue until
Center of Xxxxxxx and InSight canceled by either party with 30 days
Health Network written notice, except in the case of a
breach, in which either party can
terminate automatically.
------------------------------------------------------------------------------------------------------------------------------
Medical Record Consultant Health Care and Rehabilitation 6/1/00 This Agreement is subjected to renewal
Agreement Center of Xxxxxxx and Xxxxx X. for an additional 1 year term unless
House, R.H.I.T. terminated by either party. 30 days
written notice must be given to the
other party.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Xxxxx X. House, Health Care and Rehabilitation 8/9/01 Unknown.
A.R.T. Center of Xxxxxxx and Medical
Records Consultant
------------------------------------------------------------------------------------------------------------------------------
Eye Care Service Contract Health Care and Rehabilitation 6/26/02 This Agreement will remain in effect
Center of Xxxxxxx and Mobile year-to-year unless terminated by either
Eyecare Associates, Inc. party upon 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Medical Health Care and Rehabilitation 8/8/01 Unknown.
Director Agreement Center of Sanford and Xxxxxxxxx
Xxxxx, MD
------------------------------------------------------------------------------------------------------------------------------
Service Agreement by and between Health Care and Rehabilitation 2/2/01 This Agreement will be automatically
HealthCare Rehabilitation of Center of Xxxxxxx and renewed annually at the end of the
Xxxxxxx and TransFlorida Mobile TransFlorida Mobile Diagnostic stated period unless canceled by either
Diagnostic Services L.C. Services L.C. party with 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
RMC Dental Contract Health Care and Rehabilitation 11/22/02 Renewable each year unless notified 60
Center of Xxxxxxx and Xxxxxxx X. days prior to the anniversary date. If
Xxxxxxx D.D.S. either party wishes to terminate this
Agreement, a 30 days written notice must
be given to the other party.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to ADT Security Healthcare & Rehab of Xxxxxxx and 8/9/01 Unknown.
Systems, Inc. ADT Security Systems, Inc.
------------------------------------------------------------------------------------------------------------------------------
Commercial Sales/ Proposal Healthcare & Rehab and ADT 1/29/02 Period of 5 years and thereafter it
Agreement Security Systems, Inc. shall be automatically renewed yearly
unless terminated by either party upon
written notice at least 30 days prior to
the anniversary date.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Xxx Xxxxxxxx, Healthcare & Rehab of Xxxxxxx and 8/9/01 Unknown.
Exhaust Hood Cleaning Xxx Xxxxxxxx
------------------------------------------------------------------------------------------------------------------------------
4
------------------------------------------------------------------------------------------------------------------------------
Medical Gases Supply Agreement MEDIQ/PRN Life Support Services, 11/01/00 Automatic renewal; This Agreement may
Inc. and Vencor Nursing Centers terminate if the other party fails to
East, LLC d/b/a Healthcare & pay any amount owed and such failure
Rehabilitation Center of Xxxxxxx continues for a period of 20 days or
more or if there is a material violation
by the other party.
------------------------------------------------------------------------------------------------------------------------------
Professional Vending Service Healthcare & Rehabilitation 8/1/00 Unknown.
Agreement Center of Xxxxxxx and The Vendors
Group
------------------------------------------------------------------------------------------------------------------------------
First Amendment to A.L.P. Vending Healthcare & Rehab of Xxxxxxx and 10/23/01 Unknown.
Service A.L.P. Vending Service
------------------------------------------------------------------------------------------------------------------------------
Rental Contract Vencor Healthcare and Ashburry 12/15/99 Unknown.
Water Conditioning
------------------------------------------------------------------------------------------------------------------------------
Crystal Springs Equipment Rental Not executed No date Automatic renewal; This Agreement may be
and Service Agreement (Bottled canceled by either party upon 30 days
Water) prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Service Contract of installment Hillhaven Healthcare Center and 5/20/94 This lease shall be renewed
and maintenance of digital On-Hold Concepts automatically from year to year unless
playback equipment either party gives a 45 advance written
notice.
------------------------------------------------------------------------------------------------------------------------------
Proposal from Xxxxxxxx Diversified Hillhaven Healthcare Center and 5/25/95 Unknown.
Enterprises Xxxxxxxx Diversified Enterprises
------------------------------------------------------------------------------------------------------------------------------
Landscape Maintenance Healthcare & Rehabilitation 8/1/99 Unknown.
Specifications Center (Xxxxxxx) and Laguna
Property Maintenance
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Laguna Property Healthcare & Rehab of Xxxxxxx and 8/9/01 Automatic renewal; This Agreement may be
Management Laguna Property Maintenance canceled by either party 120 days after
the service begins, provided a 30 day
written notice has been given.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Hair Care Services Healthcare & Rehabilitation 11/12/01 Automatic renewal; This Agreement may be
Center of Xxxxxxx and Xxxxxx X. terminated by either party by giving 30
Xxxxx days written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Healthcare & Rehabilitation of Healthcare & Rehabilitation 7/19/00 Unknown.
Xxxxxxx Full Service Housekeeping Center of Xxxxxxx and Healthcare
and Laundry Proposal Services Group, Inc.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Health Care Healthcare & Rehabilitation 8/9/01 Unknown.
Services Group Center of Xxxxxxx and Healthcare
Services Group, Inc.
------------------------------------------------------------------------------------------------------------------------------
RMAP (Ricoh Major Account Program) Vencor and Ricoh 9/5/00 Unknown.
Lease Agreement
------------------------------------------------------------------------------------------------------------------------------
5
Titusville Rehabilitation and Nursing Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Medical Director Agreement Vencor Titusville Rehabilitation 4/1/98 Automatic renewal; Either party may at
& Nursing Center and Xx. Xxxxxx any time terminate this Agreement, with
Xxxxxxx or without cause, upon 30 days written
notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Medical Record Consultant Contract Titusville Nursing and Rehab 2/9/00 This Contract will renew each year,
Center and Xxxxxxxx X. Xxxx, RHIA unless canceled with 30 days advance
written notice by either party.
------------------------------------------------------------------------------------------------------------------------------
Agreement for the arrangement of Titusville Rehabilitation and 10/10/95 Automatic renewal; Either party may
services of Xxxxx Xxxxxxxxx, M.D. Nursing Center and Xxxxx terminate this Agreement with a 30 days
and Titusville Rehabilitation and Xxxxxxxxx, M.D. advance written notice to the other
Nursing Center party.
------------------------------------------------------------------------------------------------------------------------------
Contract for Nutrition Services Titusville Rehabilitation and 11/4/02 Automatic renewal; This Contract may be
Nursing Center and Xxxxxx canceled upon 30 days written notice by
Xxxxxxxxx, XX, LD/N either party.
------------------------------------------------------------------------------------------------------------------------------
Vencor Inc. Service Agreement Titusville Nursing & Convalescent 10/1/97 Automatic renewal; This Agreement can
Center and Vencor, Inc. be canceled by either party 120 days
after the services begin, provided a 30
days written notice has been given.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Kindred Healthcare #125 and 9/17/02 51 months.
Lease Agreement Pitney Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Product / Equipment Sales Titusville Rehabilitation and 6/12/01 This Agreement will continue to run, but
Agreement Nursing Center and the Steritech may be canceled with 30 days written
Group, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Gases Supply Agreement Titusvile Rehabilitation and 11/1/00 This Agreement shall continue from
Nursing Center and MEDIQ/PRN Life year-to-year until canceled by either
Support Services, Inc. party upon no less than 30 days prior
written notice.
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Fire Protection Systems Xxxxxxxx Fire Protection Systems 9/1/98 Automatic renewal; This Agreement may be
Company (I) Contract for automatic Company and Vencore, Inc. terminated by either party on at least
sprinkler equipment inspection 30 days written notice being given to
(II) Contract for testing of fire the other party prior to the anniversary
alarm and detection equipment date thereof.
(III) Contract for extinguisher
inspection and tag (IV) Contract
for range hood inspection (V)
Contract for backflow inspection
------------------------------------------------------------------------------------------------------------------------------
Letter from Progressive Document N/A 3/22/00 N/A.
Destruction (PDD)
------------------------------------------------------------------------------------------------------------------------------
6
Windsor Xxxxx Rehabilitation & Healthcare Care
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Contract Agreement for Podiatric Windsor Xxxxx Convalescent Center 7/1/99 Automatic renewal; Agreement may be
Services and Xxxx X. Xxxxxxxxxx, D.P.M. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to provide Kindred and Xx. Xxxx Xxxxxxxxxx 7/24/01 Unknown.
healthcare services to nursing
home
------------------------------------------------------------------------------------------------------------------------------
Agreement for the Provision of Hemando-Pasco Hospice Inc. and 5/22/97 Automatic renewal; Agreement may be
Hospice Services to Residents of Windsor Xxxxx Nursing Center terminated with 30 days advance notice.
Windsor Xxxxx Nursing Center
------------------------------------------------------------------------------------------------------------------------------
Hospice/Nursing Facility Agreement Windsor Xxxxx Convalescent Center 4/26/02 Automatic renewal; Agreement may be
and Hospice of Pasco, Inc. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Purchase Option Letter Windsor Xxxxx Convalescent Center 6/10/99 N/A.
and Mellon First United Leasing
------------------------------------------------------------------------------------------------------------------------------
Lease Agreement Kindred Healthcare, Inc. d/b/a 1/2/02 24 months.
Windsor Xxxxx Rehabilitation and
Healthcare Center and All-Lines
Leasing
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Windsor Xxxxx Convalescent Center 7/1/98 Automatic renewal; Agreement may be
and Vencor Hospital Tampa terminated with 90 days prior notice of
non-renewal; Agreement may be terminated
earlier in the case of a material
breach.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to provide Windsor Xxxxx Convalescent Center 7/16/01 Unknown.
healthcare services to nursing and "Physician"
home
------------------------------------------------------------------------------------------------------------------------------
Managed Service Agreement Windsor Xxxxx and Insight Health 12/9/02 Automatic renewal; Agreement may be
Network, Inc. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Professional Services Agreement Windsor Xxxxx Convalescent Center 2/12/96 Automatic renewal; Agreement may be
and Xxxxxx X. Xxxxx, M.Ed., CCC-A terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Eye Care Service Contract Windsor Xxxxx Convalescent Center 1/29/01 Automatic renewal; Agreement may be
and West Coast Mobile Eye Care, terminated with 30 days advance notice.
Inc.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Windsor Xxxxx Rehabilitation & 10/26/01 Automatic renewal; Agreement may be
Agreement Healthcare and Xxxx Xxxxxxxx M.D. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Laboratory Services Windsor Xxxxx Rehabilitation and 8/12/02 Automatic renewal; Agreement may be
Healthcare, Hudson, Florida and terminated with 30 days advance notice.
CHC Labs, Inc.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to provide WWCC and Xx. Xxxxx; Dentistry on 7/24/01 Unknown.
dental services at nursing home Wheels
------------------------------------------------------------------------------------------------------------------------------
Beauty Shop Services Agreement Windsor Xxxxx and Xxxxxxx Xxxxxxx 3/l/99 Automatic renewal; Agreement may be
terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
7
------------------------------------------------------------------------------------------------------------------------------
Equipment Lease Windsor Xxxxx Convalescent Center 6/10/99 60 months.
and Mellon First United Leasing
------------------------------------------------------------------------------------------------------------------------------
8
Bay Pointe Nursing Pavilion
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Direct Bay Pointe Nursing Pavilion and 12/4/92 This Agreement shall remain in effect
Patient Services Podiatry Xxxxxx X. Xxxxx, D.P.M. unless terminated by either party upon
30 days advance written notice for good
cause shown.
------------------------------------------------------------------------------------------------------------------------------
Department of Veterans Affairs Bay Pointe Nursing Pavilion and 1/1/02 Unknown.
Contract Number V516P-6500 Department of Veteran Affairs
------------------------------------------------------------------------------------------------------------------------------
Addendum to ERN Enrollment Form Bay Pointe Nursing Pavilion and 11/6/00 Unknown.
for Billing Services and Palmetto Government Benefits
Clearinghouses Administrators, LLC
------------------------------------------------------------------------------------------------------------------------------
Addendum to CSI Enrollment Form Bay Pointe Nursing Pavilion and 11/6/00 Unknown.
for Billing Services and Palmetto Government Benefits
Clearinghouses Administrators, LLC
------------------------------------------------------------------------------------------------------------------------------
Podiatric Services Agreement Bay Pointe Nursing Pavilion and 10/1/02 This Agreement shall be renewed
KG Health Partners, Inc. automatically for successive 1 year
periods and may be terminated upon the
conditions under this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Mental Health Services Agreement Bay Pointe Nursing Pavilion and 7/31/98 Initial term of 1 year and shall be
Xxxx X. XxXxxxxxx Ph.D. Geriatric renewed annually for 1 year period
Psychological Specialist unless otherwise terminated without
cause upon no less than 30 days prior
written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Mental Health Services Agreement Bay Pointe Nursing Pavilion and 7/7/98 Initial term of 1 year and may be
Geriatric Psychological terminated by either party with a
Specialists written notice to the other party at
least 30 days prior to the expiration of
the then-current term.
------------------------------------------------------------------------------------------------------------------------------
Contract for Ophthalmic Services Bay Pointe Nursing Pavilion and 9/13/00 This Agreement will remain in force
Xxxxxxx X. Xxxxxxxx, O.D., P.A. indefinitely unless terminated by either
party by providing the other party with
30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Bay Pointe Nursing Pavilion and 11/1/02 Initial term of 1 year and shall be
Agreement Xxxx X. Xxxxxxxx, MD automatically renewed for a 1 year
period. Either party may terminate this
Agreement without cause upon no less
than 30 days prior written notice to the
other party.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Bay Pointe Nursing Pavilion 11/30/95 Expired.
Professional Consulting and and Xx. Xxxx Xxxx, M.D.
Advisory Services
------------------------------------------------------------------------------------------------------------------------------
Agreement for services to be Vencor d/b/a Bay Pointe Pavilion 9/16/99 Initial term of 1 year and will
provided by hospice and Nursing and The Hospice of the Florida automatically renew for successive 1
Facility Suncoast year terms, unless terminated by giving
30 days advance written notice to the
other party.
------------------------------------------------------------------------------------------------------------------------------
9
------------------------------------------------------------------------------------------------------------------------------
Vencor, Inc. Service Agreement for Healthcare Services Group, Inc. 12/1/97 This Agreement will continue unless
provision of all necessary and Vencor, Inc. which operates canceled by either party 120 days after
services on the premises of the Bay Pointe Nursing Pavilion the services begin, provided a 30 day
Facility written notice has been given.
------------------------------------------------------------------------------------------------------------------------------
Contract for dental care services Bay Pointe Nursing Pavilion 5/19/02 This Agreement will automatically renew
Xxxxxxx X. Xxxxxxx D.D.S. annually unless notified 60 days prior
to the anniversary date. Either party
may terminate this Agreement with 30
days written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Institutional Medicaid Provider Bay Pointe Nursing Pavilion and 5/1/01 Unknown.
Agreement Agency for Health Care
Administrator
------------------------------------------------------------------------------------------------------------------------------
Memorandum of Agreement FMQAI - Bay Pointe Nursing Pavilion and 11/1/99 Initial period through 10/31/02 and
Medicare Skilled Nursing Facility Florida Medical Quality shall be automatically renewable for a
Assurance, Inc. second three-year period. It may be
terminated by either party upon 60 days
written notice or automatically on the
date the Department of Health and Human
Services no longer funds FMQAI.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional Bay Pointe Nursing Pavilion and 12/1/95 Expired.
Consulting and Advisory Services Xx. Xxxx Xxxx, M.D.
------------------------------------------------------------------------------------------------------------------------------
Letter from Xxxxxxx & Xxxxxxx Inc. N/A 2/5/99 N/A.
------------------------------------------------------------------------------------------------------------------------------
Continuation Certificate Safeco Insurance Company of 2/26/02 Expires on 6/3/03.
America and Kindred Nursing
Centers East LLC d/b/a Bay Pointe
Nursing #245
------------------------------------------------------------------------------------------------------------------------------
Equipment Agreement for water Bay Pointe Nursing Pavilion and 3/12/01 Unknown.
coolers Xxxxxx Investments, Inc. d/b/a
LaPure Water Coolers
------------------------------------------------------------------------------------------------------------------------------
Service Agreement for vending Bay Pointe Nursing Pavilion and 11/19/01 Unknown.
machines RK Vending
------------------------------------------------------------------------------------------------------------------------------
Pest Management Agreement Bay Pointe Nursing Pavilion and 6/6/02 1 year contract, automatically renewable
Ultimate Pest Control Services, on a month to month basis and may be
Inc. canceled anytime after the first 12
months by either party giving a 30 day
written notice.
------------------------------------------------------------------------------------------------------------------------------
Generator Set Inspection/ Bay Pointe Nursing Center and 3/12/96 Unknown.
Maintenance Agreement Diesel Energy Systems, Inc.
------------------------------------------------------------------------------------------------------------------------------
Quarterly Fire Sprinkler Bay Pointe Nursing Pavilion and 1/2/03 1 year period and shall continue
Inspection Contract WSC Inspection Services thereafter until terminated by 30 days
written notice sent to either party.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement for protection Bay Pointe Nursing Pavilion and 3/12/02 1 year period and shall automatically
of occupants and property from SimplexGrinnell renew each year thereafter. Either party
fire may terminate this Agreement by giving
30 days advance written notice.
------------------------------------------------------------------------------------------------------------------------------
Cosmetology Standard Contract Bay Pointe Nursing Pavilion and 4/1/98 Either party may terminate this
Clauses Cosmetology Agreement with or without cause upon a
written 30 day notice of cancellation to
the other party.
------------------------------------------------------------------------------------------------------------------------------
10
------------------------------------------------------------------------------------------------------------------------------
Bio-Medical Waste Service Bay Pointe Nursing Pavilion and 11/28/00 Expires on 11/28/03 and shall be
Agreement Bio-Spec, Inc. automatically renewed for a successive
year unless either party submits a
cancellation notice to the other no less
than 60 days prior to the expiration.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Kindred Healthcare #245 and 8/1/02 51 months.
Lease Agreement Pitney Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
00
Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Addendum for Inpatient Respite Hillhaven Rehabilitation & Health 7/30/99 Automatic renewal; Cancellation with or
Care Care and Southwest Florida without cause with 30 days written
Regional Medical center notice.
------------------------------------------------------------------------------------------------------------------------------
Skilled Nursing Facility First Health Care Corporation 1/1/97 Term of l year. It shall automatically
Participation Agreement d/b/a Colonial Oaks renew for subsequent 1 year terms unless
Rehabilitation Center of terminated by either party upon 90 days
Ft.-Xxxxx and Human Medical Plan, written notice to the other party.
Inc. Human Health Plan of
Florida, Inc. and Human Health
Insurance Company of Florida,
Inc. and Human Insurance Company
------------------------------------------------------------------------------------------------------------------------------
Addendum J to the Skilled Nursing HMHS and Colonial Oaks 5/19/03 N/A
Facility Participation Agreement Rehabilitation Center of
Ft.-Xxxxx d/b/a Colonial Oaks
Rehabilitation Center of
Ft.-Xxxxx
------------------------------------------------------------------------------------------------------------------------------
Southwest Florida Regional Medical Hillhaven Rehabilitation & Health 2/1/95 Expired.
Center Service Agreement Care and Southwest Florida
Regional Medical center
------------------------------------------------------------------------------------------------------------------------------
Addendum A Southwest Florida Unexecuted Unexecuted N/A.
Regional Medical Center Mature
Adult Counseling Center Service
Agreement
------------------------------------------------------------------------------------------------------------------------------
Addendum B Southwest Florida Hillhaven Rehabilitation & Health 2/6/95 N/A.
Regional Medical Center Non Care and Southwest Florida
Invasive Cardiology Services Regional Medical center
Service Agreement
------------------------------------------------------------------------------------------------------------------------------
Addendum D Southwest Florida Hillhaven Rehabilitation & Health 2/6/95 N/A.
Regional Medical Center Care and Southwest Florida
Respiratory Care Services Regional Medical center
Agreement
------------------------------------------------------------------------------------------------------------------------------
Addendum E Southwest Florida Hillhaven Rehabilitation & Health 2/6/95 N/A.
Regional Medical Center Care and Southwest Florida
Radiology Services Service Regional Medical center
Agreement
------------------------------------------------------------------------------------------------------------------------------
Exclusive Provider Agreement Hillhaven Rehabilitation & Health 9/5/95 Automatic renewal; Either party may
pursuant to intravenous therapy Care and Xxx Memorial Home terminate this Agreement at any time
and nutrition support services Infusion with 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Hillhaven Rehabilitation Center of First Healthcare Corporation 10/22/95 Automatic renewal; This Agreement can be
Fort Xxxxx Service Agreement which owns a Nursing home known canceled by either party upon a 30 day
as Hillhaven Rehabilitation written notice.
Center of Fort Xxxxxx and
Healthcare Services Group
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement Vencor Inc. d/b/a Colonial Oaks 10/25/00 Automatic renewal; Termination with or
(Included, but not limited, Rehabilitation & Healthcare without cause by delivering to the other
specimen collection and analysis) Center and Med Services of party, at least 30 days prior to the
America date upon which termination is desired.
------------------------------------------------------------------------------------------------------------------------------
12
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement Vencor Inc. d/b/a Colonial Oaks 10/18/99 Automatic renewal; Termination with or
(Included, but not limited, Rehabilitation & Healthcare without cause by delivering to the other
specimen collection and analysis) Center and St. Joseph's Hospital, party a 30 days written notice prior to
Inc. termination date desired.
------------------------------------------------------------------------------------------------------------------------------
Medical Records Consultant Colonial Oaks Rehabilitation 4/1/97 Automatic renewal; Either party may
Agreement Center - Fort Xxxxx and Xxxxxx terminate this Contract with a 30 day
Xxxxxxxxxx notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Directors Service Colonial Oaks Rehabilitation 11/1/97 Automatic renewal; It may be canceled
Agreement Center - Fort Xxxxx and Abusayeed upon 30 days advance written notice by
M. Feroz, MD either party.
------------------------------------------------------------------------------------------------------------------------------
Medical Directors Service Colonial Oaks Rehabilitation 1/23/03 1 year term, automatic renewal for
Agreement Center - Fort Xxxxx and Abusayeed additional 1 year terms; It may be
M. Feroz, MD canceled upon 30 days advance written
notice by either party.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Medical Colonial Oaks Rehabilitation 7/20/01
Director Contract Center - Fort Xxxxx and Xxxxxxxxx
X. Xxxxx, MD
------------------------------------------------------------------------------------------------------------------------------
Agreement (plus several addendums) Hillhaven Rehabilitation Center 6/14/95 This Agreement shall be ongoing from the
pursuant to services provided to of Ft. Xxxxx and H.O.P.E. of Xxx date signed by both parties. It may be
eligible patients County, d/b/a Hope Hospice canceled by either party upon 30 days
written notice.
------------------------------------------------------------------------------------------------------------------------------
Addendum C - Patient Xxxxxxx Court Nursing Home and 3/20/03
Responsibility Hope Hospice of Southwest
Florida, Inc. d/b/a Hope Hospice
------------------------------------------------------------------------------------------------------------------------------
Standard Consulting Agreement Colonial Oaks and Xxxxxx 2/4/00 Expired.
pursuant to provision of services Xxxxxxxxxx
from Consultant to Health Care
Facility
------------------------------------------------------------------------------------------------------------------------------
Standard Consulting Agreement Colonial Oaks and Xxxxxx 5/12/03 From 5/12/03 through 5/12/04.
pursuant to provision of services Xxxxxxxxxx
from Consultant to Health Care
Facility
------------------------------------------------------------------------------------------------------------------------------
Medicare Memorandum of Agreement Rehab Ctr of Ft. Xxxxx and 11/1/99 From 11/1/99 through 10/31/02, and shall
Florida Medical Quality be automatically renewable beginning
Assurance, Inc. 11/1/02.
------------------------------------------------------------------------------------------------------------------------------
Addendum to Service Colonial Oaks Rehab Center and 9/1/97 Effective for 1 year from 9/1/97 and
Agreement/Equipment Lease for Airtouch Paging renew automatically unless otherwise
radio telephone service and/or the specified in writing.
lease of communications equipment
------------------------------------------------------------------------------------------------------------------------------
Optometric Services Agreement Colonial Oaks Rehab Center and 12/14/00 From 1/15/00 until terminated by either
Xxxxxxxx X. Xxxxxx, M.D., P.A. Party.
d/b/a Florida Eye Health
------------------------------------------------------------------------------------------------------------------------------
Optometry Services Agreement Colonial Oaks Rehab Center and 1/1/99 From 1/1/99 until terminated by either
Eye Centers of Florida, PA., Party.
d/b/a Eye Centers of Florida
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services and Colonial Oaks Rehab of Fort Xxxxx 5/1/97 Initial period of 5 years; Renewed
Consulting Agreement and Vencare Pharmacy Services automatically for successive 1 year
periods unless terminated by Pharmacy on
account of Facility's failure to pay
outstanding bills.
------------------------------------------------------------------------------------------------------------------------------
13
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Colonial Oaks of Fort Xxxxx and 7/1/98 Period of 3 years and automatically
Vencor Hospital Tampa renewed for 1 year periods unless notice
of termination is provided not less than
90 days prior to the end of a term.
------------------------------------------------------------------------------------------------------------------------------
Mental Health Services Agreement Colonial Oaks and 2/2/00 Period of 1 year and shall renew
Neuropyschiatric Associates automatically for another like term
unless written notice of termination is
provided 30 days more prior to
expiration.
------------------------------------------------------------------------------------------------------------------------------
Agreement: Stellar Care, Inc. Colonial Oaks Rehabilitation 4/500 Period of 1 year and shall renew
Center and Stellar Care, Inc. automatically for another like term
unless written notice of termination is
provided 30 days notice.
------------------------------------------------------------------------------------------------------------------------------
Memorandum of Agreement pursuant Colonial Oaks Rehabilitation 6/16/99 From 6/16/99 until terminated via 60
to the education of students in Center of Fort Xxxxx and the days written notice.
Xxx County School Board of Xxx County
------------------------------------------------------------------------------------------------------------------------------
Dental Services Agreement Colonial Oaks, Inc. and Peninsula 4/10/00 Period of 1 year with automatic renewals
Dental Corporation and may be terminated upon 30 days
advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Dietary Services Agreement Colonial Oaks Rehabilitation and 10/25/00 Period of 1 year with automatic renewals
Healthcare Center and Xxxx and may be terminated upon 30 days
XxXxxxxxx advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Dietary Consultant Services Xxxxxxx Court and Larissa 3/25/03 Automatically renewable, but may be
Agreement Xxxxxxxx terminated on 30 day notice by either
party.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional Hillhaven Rehab. Center of Fort 1/1/95 Period of 1 year and shall renew
Consulting and Advisory Services Xxxxx and Xx. Xxxxxx Xxxxxxxxx, automatically from year to year.
(Podiatric Services) DPM Agreement shall be renegotiated upon the
initiative of either Party.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional Hillhaven Rehabilitation & Health 11/1/94 Period of 5 years unless terminated by
Consulting and Advisory Services Care Center - Fort Xxxxx and either party for good cause upon 30 days
Xx. X. X. Xxxxxxx, M.D. written notice.
------------------------------------------------------------------------------------------------------------------------------
Lehigh Regional Medical Center Lehigh Regional Medical Center 1/1/03 Period of 1 year and shall renew
Transfer Agreement and Xxxxxxx Court automatically for 1 year periods unless
terminated upon 30 day notice.
------------------------------------------------------------------------------------------------------------------------------
Hillhaven Agreement for Services; Hillhaven Rehabilitation & Health 12/1/94 Unknown.
Provisions for Emergency Food Care Center and Sysco Food
Delivery Service
------------------------------------------------------------------------------------------------------------------------------
Recycling Agreement Hillhaven Rehab and 6/30/95 36 months.
Xxxxxxxx-Xxxxxx Industries of
Florida, Inc.
------------------------------------------------------------------------------------------------------------------------------
"Shred-It, Tampa" Service Xxxxxxx Court and Shred-It Tampa 4/1/03 3/31/04, with optional renewal in 1 year
Agreement periods. May be terminated on 90 days
written notice to the other party
------------------------------------------------------------------------------------------------------------------------------
Fire Protection Systems Inspection Colonial Oaks Rehabilitation 11/15/00 Initial term of 2 years.
and Testing Center of Fort Xxxxx and Fire
Sprinkler Systems Company
------------------------------------------------------------------------------------------------------------------------------
Industrial Fire & Safety, Inc. Colonial Oaks Rehabilitation 9/25/00 Unknown.
Inspection Service Contract Center and Industrial Fire &
Safety Inc.
------------------------------------------------------------------------------------------------------------------------------
14
------------------------------------------------------------------------------------------------------------------------------
Fire Protection Systems Inspection Colonial Oaks Rehabilitation 8/23/00 Unknown.
and Testing Center of Fort Xxxxx and Fire
Sprinkler Systems Company
------------------------------------------------------------------------------------------------------------------------------
Firemaster Master Protection Colonial Oaks Rehabilitation and 3/3/99 Expired.
Corporation Agreement Fire Master Master Protection
Corporation
------------------------------------------------------------------------------------------------------------------------------
Xxxxx Sound & Communications of Vencor Colonial Oaks 3/17/98 This Agreement shall remain in effect
Florida, Inc. Service Agreement Rehabilitation Center and Xxxxx for successive 60 month periods unless
Sound & Communications of terminated by either party at the end of
Florida, Inc. any such period by written notice sent
to the other by registered mail, 90 days
prior to the expiration thereof.
------------------------------------------------------------------------------------------------------------------------------
Preventive Maintenance Agreement Colonial Oaks Rehabilitation & 2/24/00 It will remain in force until canceled
Healthcare Center and Power by either party through written notice
Equipment Company to the other.
------------------------------------------------------------------------------------------------------------------------------
Preventive Maintenance Agreement Colonial Oaks Rehabilitation & 9/2/88 It will remain in force until canceled
Healthcare Center and Superior by either party through written notice
Power Equipment Company, Inc. to the other.
------------------------------------------------------------------------------------------------------------------------------
Commercial Pest Management Colonial Oaks Rehabilitation 6/2/99 This Agreement is effective for a period
Agreement Center and Truly Xxxxx of twelve consecutive months and shall
Exterminating, Inc. renew month to month thereafter unless
written notice is given 30 days in
advance by either party.
------------------------------------------------------------------------------------------------------------------------------
Sprint Payphone Services, Inc. Colonial Oaks and Sprint Payphone 6/24/98 Automatic renewal.
Exclusive Pay Telephone Service Services, Inc.
and Lease Agreement
------------------------------------------------------------------------------------------------------------------------------
United Telephone Company of Hillhaven Rehab Center and United 3/1/95 Period of 12 months and shall renew
Florida Exclusive Pay Telephone Telephone Company of Florida automatically for another like term
Service and Lease Agreement unless written notice of termination is
provided 30 days more prior to
expiration.
------------------------------------------------------------------------------------------------------------------------------
Commercial Propane and Gas Sales Colonial Oaks Rehabilitation 11/1/98 Unknown.
and Service Agreement Center and Suburban Propane
Division of Quantum Chemical
Corporation
------------------------------------------------------------------------------------------------------------------------------
Healthcare HairServices Inc. Hair Hillhaven Rehabilitation Center 8/4/94 Period of 1 year with automatic renewal
Care Independent Contractor and HealthCare HairServices Inc. provisions. May be terminated upon
Agreement receipt of 30 days notice.
------------------------------------------------------------------------------------------------------------------------------
15
Carrollwood Care Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Carrollwood Care Center and Carrollwood Care Center and 5/19/95 Expired.
LifeFleet Southeast, Inc. Service LifeFleet, Inc.
Agreement
------------------------------------------------------------------------------------------------------------------------------
Ambulance Service Agreement Carrollwood Care Center and 9/27/99 Expired.
AmeriCare Ambulance Service, Inc.
------------------------------------------------------------------------------------------------------------------------------
American Medical Response American Medical Response and 5/31/99 Automatic renewal; Agreement may be
Healthcare Facility Disaster Carrollwood Care Center terminated with 30 days advance notice.
Transport Agreement
------------------------------------------------------------------------------------------------------------------------------
Medical Transportation Services American Medical Response and 5/31/99 Automatic renewal; Agreement may be
Agreement Carrollwood Care Center terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Professional Services Agreement Carrollwood Care Center and 7/20/95 This Agreement may be terminated only if
regarding audiologist's services Xxxxxx Xxxxx (Audiologist) initiated by either party with 30 days
for residents living at the advance notice.
Facility
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement of patients St. Joseph's Hospital, Inc. and 7/10/95 Automatic renewal; This Agreement may be
between institutions Carrollwood Care Center terminated with or without cause upon 30
days prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement (Post Acute University Community Hospital, 8/5/99 Automatic renewal; This Agreement may be
Care) Inc. and UCH-Carrollwood and terminated 90 days after delivery of
Carrollwood Care Center written notice of termination.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Patient Transfer Town and Country Hospital and 3/28/97 Automatic renewal; This Agreement may be
between institutions Carrollwood Care Center terminated with 90 days written notice
or automatically if either party fails
to maintain its licensure or
certification.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Carrollwood Care Center and 7/3/95 Automatic renewal; This Agreement may be
Vencor Hospital Tampa terminated with 30 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Galencare, Inc. d/b/a Xxxxxxx 4/1/00 Expired.
Regional Hospital and Carrollwood
Care Center
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Carrollwood Care Center and 3/25/96 Automatic renewal; This Agreement may be
Transitional Hospital of Tampa, terminated with 30 days written notice.
Inc.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Carrolwood Care Center and 4/23/01 Automatic renewal; This Agreement may be
Florida Health Sciences Center, terminated with 30 days advance written
Inc. notice or immediate upon material
breach.
------------------------------------------------------------------------------------------------------------------------------
16
------------------------------------------------------------------------------------------------------------------------------
AmeriCare Ambulance Service, Inc., AmeriCare Ambulance Service, Inc. 5/7/02 Automatic renewal; This Agreement may be
Preferred Ambulance Provider and Carrollwood Care Center terminated with 30 days prior written
Agreement; Wheelchair & notice.
Non-Medical Stretcher Provider
Agreement; Healthcare Facility
Disaster Transportation Agreement
------------------------------------------------------------------------------------------------------------------------------
Medico Environmental Services, Carrollwood Care Center and 2/28/02 Automatic renewal; This Agreement may be
Inc., Biomedical Waste Disposal Medico Environmental Services, terminated with 30 days written notice.
Services Agreement Inc.
------------------------------------------------------------------------------------------------------------------------------
Behavioral Health Agreement Carrollwood Care Center and 2/28/97 Automatic renewal; This Agreement may be
Insight Health Network terminated with 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Purchase Carrollwood Care Center and 9/3/96 Automatic renewal; This Agreement may be
Pharmaceutical Products and Medisave Pharmacies, Inc. terminated with cause upon 15 days
Services (for Vencor nursing written notice or 30 days written notice
facilities) to cancel renewal.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Carrollwood Care Center and 7/1/98 Automatic renewal; This Agreement may be
Vencor Hospital Tampa terminated with 90 days written notice
prior to end of term or immediate upon
loss of licensure or Medicare or
Medicaid certification or material
change in business of breaching party.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Portable X-Ray Carrollwood Care Center and 12/98 Automatic renewal; This Agreement may be
Services Mobile Radiology and EKG Service, terminated with 30 days prior written
Inc. d/b/a RADS Mobile X-Ray & notice.
EKG Service, Inc.
------------------------------------------------------------------------------------------------------------------------------
Agreement with Nursing Facility Lifepath Hospice and Palliative 4/5/02 Automatic renewal; This Agreement may be
Care, Inc. and Carrollwood Care terminated without cause at least 60
Center days prior written notice or within 5
days after written notice or if material
breach.
------------------------------------------------------------------------------------------------------------------------------
Podiatric Services Agreement KG Health Partners, Inc. and 9/11/01 Automatic renewal; This Agreement may be
Carrollwood Care Center terminated with 30 days advance written
notice.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement for provision of Xxxx X. Xxxxx and Carrollwood 10/1/94 Automatic renewal; This Agreement may be
all dental care required by Care Center terminated for any reason on 30 days
residents of the Facility written notice.
------------------------------------------------------------------------------------------------------------------------------
Eye Care Service Contract Carrollwood Care Center and 8/7/00 Automatic renewal; This Agreement may be
Mobile Eyecare Associates, Inc. terminated with 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Service Contract Agreement Carrollwood Care Center and 8/1/00 Automatic renewal; This Agreement may be
Xxxx X. Xxxxxx H.A.S. terminated with 30 days advance written
notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Carrollwood Care Center and 1/22/01 Automatic renewal; This Agreement may be
Agreement Xx. Xxxxxxx terminated with 30 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
17
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Kindred Healthcare #372 and 9/23/02 51 months.
Lease Agreement Pitney Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Maintenance Agreement Vencor Carrollwood Care Center 10/25/96 Unknown.
and Ricoh Corporation
------------------------------------------------------------------------------------------------------------------------------
Service Agreement for digital On hold Concepts, Inc. and 2/6/98 Unknown.
playback equipment to the premises Carrollwood Care Center
------------------------------------------------------------------------------------------------------------------------------
HealthCare HairServices Inc. Hair Carrollwood Care Center and 1/19/95 Automatic renewal provisions; This
Care Independent Contractor HealthCare HairServices Agreement may be terminated with 60 days
Agreement written notice.
------------------------------------------------------------------------------------------------------------------------------
TECO Gas Services FTA Supply & Carrollwood Care Center and TECO 4/26/00 Automatic renewal; This Agreement may be
Service Agreement Gas Services terminated after initial 5 year term
with 90 days prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Industrial Fire & Safety, Inc., Industrial Fire & Safety Inc. and 4/26/99 Automatic renewal provisions; It may be
Inspection Service Contract Carrollwood Care Center terminated with cause 10 days prior
written notice.
------------------------------------------------------------------------------------------------------------------------------
Hawkeye, Pest Control Service Carrollwood Care Center and 5/15/01 Automatic renewal; Within first year: 60
Agreement Hawkeye Pest Control, Inc. days prior written notice; after first
year: 30 days prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Contract for Automatic Fire Xxxxxxxx Fire Sprinklers, Inc. 8/28/90 Automatic renewal; This Agreement may be
Sprinkler Equipment Inspection and Carrollwood Care Center terminated with 30 days prior written
Service notice.
------------------------------------------------------------------------------------------------------------------------------
Ultrasound Service Agreement Mobile Ultrasound Services, Inc. 2/26/02 Automatic renewal; This Agreement may be
and Carrollwood Care Center terminated without cause upon 30 days
prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Fac. # 372 and Pitney Xxxxx Unknown. 63 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
18
Evergreen Xxxxx Health & Rehabilitation Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Contract for dental care services Evergreen Xxxxx Health and 2/23/96 Automatic renewal; Agreement may be
Rehabilitation and Comprehensive terminated with 30 days advance notice.
Caring Dentistry
------------------------------------------------------------------------------------------------------------------------------
Agreement for the Provision of Evergreen Xxxxx Health Care 2/17/93 Automatic renewal; Agreement may be
Hospice Services to Residents of Center and Hemando-Pasco Hospice terminated with 30 days advance notice.
Evergreen Xxxxx Health Care Inc.
Center
------------------------------------------------------------------------------------------------------------------------------
Agreement for Laboratory Services Evergreen Xxxxx Health and 7/16/02 Automatic renewal; Agreement may be
Rehabilitation Spring Hill, terminated with 30 days advance notice.
Florida and CHC Labs, Inc.
------------------------------------------------------------------------------------------------------------------------------
Medical Record Consultant Evergreen Xxxxx Health and 7/9/97 Automatic renewal; Agreement may be
Agreement Rehabilitation and Xxxxxxx Xxxxxx terminated with 30 days advance notice.
Consulting Inc.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Medical Record Evergreen Xxxxx Health and 7/17/01 Unknown.
Consultant Agreement Rehabilitation and Xxxxxxx Xxxxxx
Consulting Inc.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Evergreen Xxxxx Health and 7/1/98 Automatic renewal; Agreement may be
Rehabilitation Center and Vencor terminated with 90 days prior notice of
Hospital Tampa non-renewal; Agreement may be terminated
earlier in the case of a material
breach.
------------------------------------------------------------------------------------------------------------------------------
Podiatric Service Agreement Evergreen Xxxxx Health and 5/7/99 Automatic renewal; Agreement may be
Rehabilitation Center and Xxxx X. terminated with 30 days advance notice.
Xxxxxxxxxx, D.P.M
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Podiatric Evergreen Xxxxx Health and 7/17/01 Unknown.
Service Agreement Rehabilitation Center and Xxxx X.
Xxxxxxxxxx, D.P.M
------------------------------------------------------------------------------------------------------------------------------
Medicare Memorandum of Agreement Evergreen Xxxxx Health and 11/1/99 Automatic renewal; Agreement may be
Rehabilitation and Florida terminated with 60 days advance notice.
Medical Quality Assurance, Inc.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Service Evergreen Xxxxx Health and 8/7/01 Unknown.
Agreement Rehabilitation Center and Austin
Respiratory Equipment, Inc.
------------------------------------------------------------------------------------------------------------------------------
Mobile Diagnostic Services Evergreen Xxxxx and Ultra 4/26/00 Automatic renewal; Agreement may be
Agreement Healthcare Services, Inc. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement of fire Kindred Healthcare Operating, 7/1/01 Automatic renewal; Agreement may be
protection equipment Inc. d/b/a Evergreen Xxxxx Health terminated at the completion of a
Care and Pasco Fire & Safety service year (July 1-June 30).
Equipment Company
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Fire Protection Systems Evergreen Xxxxx Health and 9/22/99 Automatic renewal; Agreement may be
Company (I) Contract for Automatic Rehabilitation Center and terminated with 30 days advance notice.
Sprinkler Equipment Inspection Xxxxxxxx Fire Protection Systems
(II) Contract for Testing of Fire Company
Alarm and Detection Equipment
(III) Combined Contract for the
Above Programs I & II
------------------------------------------------------------------------------------------------------------------------------
19
------------------------------------------------------------------------------------------------------------------------------
Planned Maintenance Program Evergreen Xxxxx Health and 12/14/00 Expired.
Scheduling Agreement Ringhaver Equipment Co.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to the Beautician Evergreen Xxxxx Health and 7/17/01 Unknown.
Agreement Rehabilitation Center and Xxxx
X. Xxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------
Confidential Professional Copying Evergreen Xxxxx Health and 7/15/01 Unknown.
Nondisclosure Agreement Rehabilitation Center and
Confidential Professional Copying
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Confidential Evergreen Xxxxx Health and 8/17/01 Unknown.
Professional Copying Rehabilitation Center and
Confidential Professional Copying
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Grounds Evergreen Xxxxx Health and 7/17/01 Unknown.
Maintenance Contract Rehabilitation Center and Sunrise
Landscaping & Maintenance
------------------------------------------------------------------------------------------------------------------------------
Water and Sewer Agreement Evergreen Xxxxx and Hernando 4/13/88 Unknown.
County Water and Sewer District
------------------------------------------------------------------------------------------------------------------------------
Self storage Agreement Evergreen Xxxxx Health and 9/5/01 Expired.
Rehabilitation and Self Storage
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #637 and Pitney Xxxxx None given 48 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
20
Rehabilitation and Health Care Center of Tampa
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Rehab and Health Care of Tampa 7/1/98 Automatic renewal; This Agreement may be
and Vencor Hospital Tampa terminated earlier if either party
materially breaches the Agreement.
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement Kindred Health Care LLC d/b/a 10/15/02 Automatic renewal; At anytime either
Rehabilitation and Healthcare of party may voluntarily elect to terminate
Tampa and Ecolab Group Co. this Agreement with or without cause by
delivering to the other party, at least
30 days prior to the date upon which
termination is desired.
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services and Vencare Pharmacy Services and 12/1/97 Automatic renewal; This Agreement may be
Consulting Agreement Rehabilitation and Healthcare terminated by Pharmacy on account of
Center of Tampa Facility's failure to pay outstanding
bills.
------------------------------------------------------------------------------------------------------------------------------
Health Information Management Rehabilitation and Healthcare 7/20/99 Automatic renewal; Either party may
Consulting Agreement Center of Tampa and Xxxxx Xxxxxxx terminate this Agreement by submitting a
Art, d/b/a Katchup Consulting 30 day written notice.
------------------------------------------------------------------------------------------------------------------------------
America Ambulance Service, Inc. Rehabilitation & Healthcare Not Automatic renewal; This Agreement may be
Preferred Ambulance Provider Center of Tampa and Americare executed terminated by written notice of either
Agreement; Wheelchair & Ambulance Service, Inc. party to the other, 30 days after such
Non-Medical Stretcher Provider notice.
Agreement; Healthcare Facility
Disaster Agreement
------------------------------------------------------------------------------------------------------------------------------
Agreement with Nursing Facility Between Lifepath Hospice and 1/02 Automatic renewal; Either party may
Palliative Care, Inc. and terminate this Agreement without cause
Rehabilitation & Healthcare at any time by providing to the other
Center of Tampa party at least 60 days prior written
notice of termination.
------------------------------------------------------------------------------------------------------------------------------
Healthcare Facility Disaster Rehabilitation & Healthcare 1/30/97 Automatic renewal; This Agreement may be
Transport Agreement Center of Tampa and Hillsborough terminated with 30 days written notice.
Management MedTrans
------------------------------------------------------------------------------------------------------------------------------
LTCF Dialysis (ERSD) Compliance Renex Dialysis Clinic of Tampa, 6/16/94 Automatic renewal; This Agreement may be
Agreement Inc. and Rehabilitation Health terminated by either party with 90 days
Center of Tampa written notice.
------------------------------------------------------------------------------------------------------------------------------
Managed Service Agreement for Rehabilitation & Healthcare 11/18/99 Automatic renewal; It may be terminated
behavioral services to clients at Center of Tampa and the Insight by either party with 30 days written
the Facility Health Network, Inc. notice, except in case of breach in
which either party can terminate
immediately.
------------------------------------------------------------------------------------------------------------------------------
Podiatric Services Agreement Rehabilitation & Healthcare 12/1/99 Automatic renewal; It may be terminated
Center of Tampa and KG Health at any time as follows: in written
Partners, Inc. notice, with and without cause and
bankruptcy.
------------------------------------------------------------------------------------------------------------------------------
Healthcare Facility Disaster Rehabilitation & Healthcare 8/23/01 Automatic renewal; This Agreement may be
Transport Agreement Center of Tampa and American terminated with 30 days written notice.
Medical Response
------------------------------------------------------------------------------------------------------------------------------
21
------------------------------------------------------------------------------------------------------------------------------
American Medical Response and Rehabilitation & Healthcare 8/23/01 This Agreement shall be 1 year and will
Rehabilitation & Healthcare Center Center of Tampa and American be automatically extended for 1 year
of Tampa Service Agreement Medical Response upon such terms and conditions as may be
mutually agreed upon by the parties
hereto. It may be terminated upon giving
60 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Transportation Services Rehabilitation & Healthcare 8/23/01 Automatic renewal; Termination by either
Agreement Center of Tampa and LifeFleet party without cause upon 30 days of
Southeast Inc. d/b/a American written notice or with cause upon notice
Medical Response West Florida to the other.
------------------------------------------------------------------------------------------------------------------------------
Facility Transfer Agreement Rehabilitation & Healthcare 8/1/02 Expires on 7/31/03 unless sooner
between the institutions Center of Tampa and Galencare, terminated as provided that either party
Inc. d/b/a Xxxxxxx Regional may terminate this Agreement without
Hospital cause upon 30 days advance written
notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 4/23/01 1 year and shall be automatically
Center of Tampa and Florida renewable in successive 1 year terms,
Health Science Center, Inc. d/b/a unless either Facility gives the other
Tampa General Hospital written notice of its intent to
terminate this Agreement, not less than
30 days prior to the expiration of the
then current term.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Service Rehabilitation & Healthcare 4/1/99 1 year, and annually shall be
Agreement Center of Tampa and Xx. Xxxx Xxxxxx automatically renewed for a 1 year
period under like terms, unless
otherwise terminated as provided in this
Agreement.
------------------------------------------------------------------------------------------------------------------------------
Nursing Facility Dialysis Services Rehabilitation & Healthcare 8/2/99 1 year unless sooner terminated pursuant
Agreement Center of Tampa and Bradenton to Article V of this Agreement with at
Medical Enterprises least 30 day written notice prior to the
termination date.
------------------------------------------------------------------------------------------------------------------------------
Long Term Care Facility Dialysis Rehabilitation & Healthcare 6/1/00 Initial term is 12 months. This
(ESRD) Compliance Agreement Center of Tampa and Independent Agreement will be automatically renewed
Renal Associates for consecutive twelve-month terms until
such time as the Agreement is terminated
by one of the parties under the
provisions of this Agreement.
------------------------------------------------------------------------------------------------------------------------------
LTCF Dialysis (ESRD) Compliance RENEX Dialysis Clinic of Tampa, 6/16/99 Unknown.
Agreement Inc. and Rehabilitation Center of
Tampa
------------------------------------------------------------------------------------------------------------------------------
Agreement with Nursing Facility LifePath Hospice and Pallative Unknown Not executed.
Care, Inc. and Not Provided
(appears to be Rehabilitation
Center of Tampa)
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #836 and Pitney Xxxxx 1/?/99 48 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Option to Purchase or Re-Rent Nellcor Puritan Xxxxxxx Hospital 7/9/98 Unknown.
Agreement Credit Corp and Veneer Operating
Inc.
------------------------------------------------------------------------------------------------------------------------------
22
------------------------------------------------------------------------------------------------------------------------------
Storage Agreement for pick up, Rehabilitation & Healthcare 2/25/00 This Agreement shall be for 1 year and
delivery, storage and management Center of Tampa and Business automatically renew for successive terms
of material belonging to the Archives of 1 year.
Client.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Portable X-Ray Rehabilitation & Healthcare 1/1/99 Automatic renewal; This Agreement may be
Services Center of Tampa and Mobile terminated for any reason whatsoever by
Radiology and EGG Service, Inc. either party upon 30 day written notice
d/b/a RADS Mobile X-Ray & EKG to the other party, specifying the
Service, Inc. effective date of termination.
------------------------------------------------------------------------------------------------------------------------------
23
Rehabilitation and Health Center of Cape Coral
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Medicare Memorandum of Agreement Rehab and Healthcare Center of 11/1/99 Automatic renewal; Agreement may be
Cape Coral and Florida Medical terminated with 60 days written notice;
Quality Assurance, Inc. or automatically on the date the Dept.
of Health and Human Services no longer
funds FMQAI.
------------------------------------------------------------------------------------------------------------------------------
Vista Healthplan, Inc. Vista Vencor d/b/a Rehab & Health Care Not dated Automatic renewal; Agreement may be
Insurance Plan, Inc. Amended and Center and Vista Healthplan, terminated with 60 days prior written
Restated Provider Services Inc., Vista Insurance Plan, Inc. notice.
Agreement
------------------------------------------------------------------------------------------------------------------------------
American Red Cross Authorized Rehab and Healthcare Center of 3/1/01 Expired.
Provider Agreement Cape Coral and American Red Cross
of Xxx County
------------------------------------------------------------------------------------------------------------------------------
American Red Cross Authorized Rehab and Healthcare Center of 9/12/02 Expires on 10/31/03; Agreement may be
Provider Agreement Cape Coral and American Red Cross terminated with 30 days prior written
of Xxx County notice.
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement Kindred Nursing Centers East, LLC 9/1/01 Automatic renewal; Agreement may be
d/b/a Rehabilitation and terminated with 30 days prior written
Healthcare Center of Cape Coral notice.
and DSI Laboratories
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 6/20/00 Agreement may be terminated with 90 days
Center of Cape Coral and Xxx prior written notice or automatic
Memorial Health System termination should either party fail to
maintain its licensure or certification
as provided by Public Law 89-97.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 6/20/00 Agreement may be terminated with 90 days
Center of Cape Coral and Gulf prior written notice or automatic
Coast Hospital termination should either party fail to
maintain its licensure or certification
as provided by Public Law 89-97.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 6/20/00 Agreement may be terminated with 90 days
Center of Cape Coral and prior written notice or automatic
HealthPark Care Center termination should either party fail to
maintain its licensure or certification
as provided by Public Law 89-97.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 6/20/00 Agreement may be terminated with 90 days
Center of Cape Coral and Cape prior written notice or automatic
Coral Hospital termination should either party fail to
maintain its licensure or certification
as provided by Public Law 89-97.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Rehabilitation & Healthcare 6/20/00 Agreement may be terminated with 90 days
Center of Cape Coral and S.W. prior written notice or automatic
Regional Medical Center termination should either party fail to
maintain its licensure or certification
as provided by Public Law 89-97.
------------------------------------------------------------------------------------------------------------------------------
Monthly Minimum Advertising Rehabilitation & Healthcare 9/3/01 12 consecutive periods; Agreement may be
Agreement Center of Cape Coral and The News terminated with 30 days prior written
Press Publishing Company notice.
------------------------------------------------------------------------------------------------------------------------------
24
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement Kindred Nursing Centers East, LLC 7/13/01 Unknown.
d/b/a Rehabilitation & Healthcare
Center of Cape Coral and DSI
Laboratories
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Rehabilitation & Healthcare 6/1/01 Automatic renewal; Renewal may be
Agreement Center of Cape Coral and cancelled with 60 days prior written
Xx. X. Xxxxxxx, M.D. notice of termination; Agreement may be
terminated at any time with 30 days
written notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement to provide nursing Rehabilitation & Healthcare 11/13/98 Automatic renewal; Agreement may be
services to healthcare center Center of Cape Coral and H.O.P.E. terminated with 30 days written notice
of Xxx County, Inc., d/b/a Hope (without cause); Agreement may be
Hospice and Palliative Care terminated with 10 days written notice
if breach is not cured within 10 days of
breaching party's receipt of written
notice of breach.
------------------------------------------------------------------------------------------------------------------------------
Standard Consulting Agreement Rehabilitation & Healthcare 3/23/00 Automatic renewal; Agreement may be
Center of Cape Coral and Xxxxxx terminated with 30 days advance notice
Xxxxxxxxxx, RHIT (without cause); Agreement may be
terminated with 10 days written notice
if breach is not cured within 10 days of
breaching party's receipt of written
notice of breach.
------------------------------------------------------------------------------------------------------------------------------
Radiology Services Agreement Rehabilitation & Healthcare 4/12/99 Automatic renewal; Agreement may be
Center of Cape Coral and terminated with 60 days prior written
Radiology Regional Center, P.A. notice.
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services and Rehabilitation & Healthcare 4/1/97 Automatic renewal; Agreement may be
Consulting Agreement Center of Cape Coral and Vencare terminated by Pharmacy on account of
Pharmacy Services Facility's failure to pay outstanding
bills.
------------------------------------------------------------------------------------------------------------------------------
Contract for Podiatric Care Rehabilitation & Healthcare 8/3/00 Agreement may be terminated with 30 days
Center of Cape Coral and Xxxxx xxxxx written notice.
Xxxxxxx, D.P.M.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Cape Coral Rehab and Vencor 7/1/98 Automatic renewal; Agreement may be
Hospital Tampa terminated with 90 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
Mental Health Services Agreement Rehabilitation & Healthcare 10/22/01 Automatic renewal; Agreement may be
Center of Cape Coral and terminated with 30 days prior written
Xxxxxx X. Xxxxxxx, PH.D., P.A. notice.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement to provide Cape Coral Rehab and Health Care 3/6/00 Unknown.
psychiatric care for the valuable Center and Seabreeze Behavioral
patient of this Nursing Facility Medicine
------------------------------------------------------------------------------------------------------------------------------
Staffing Agreement pursuant Rehabilitation & Healthcare 12/10/99 Automatic renewal; Agreement may be
availability of qualified staff to Center of Cape Coral and Alliance terminated with 30 days prior written
provide services for the Respiratory Service notice.
Facility's patients
------------------------------------------------------------------------------------------------------------------------------
Social Service Consultation Rehab Center of Cape Coral and 9/27/02 Automatic renewal; Agreement may be
Agreement Xxxxx Health Care Consulting terminated with 30 days prior written
Services, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Renewal Agreement for continued Rehabilitation & Health Care 10/26/01 Expired.
participation in the Medicaid Center of Cape Coral and Agency
Program fro Health Care Administrator
------------------------------------------------------------------------------------------------------------------------------
25
------------------------------------------------------------------------------------------------------------------------------
Memorandum of Agreement pursuant Vencor Rehabilitation and Health 6/19/01 Agreement may be terminated with 60 days
to the education of students in Care Center of Cape Coral and the prior written notice.
Xxx County School Board of Xxx County
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #837 and Pitney Xxxxx 11/16/99 66 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
RMAP Lease Agreement Rehab and Healthcare of Cape 4/12/00 36 months.
Coral and Ricoh Corporation
------------------------------------------------------------------------------------------------------------------------------
Pest Prevention Service Agreement Rehab & Healthcare Center (Cape 10/30/00 Automatic renewal; Agreement may be
Coral, FL) and The Steritech terminated at least 30 days prior to the
Group, Inc. end of the applicable 1 year term.
------------------------------------------------------------------------------------------------------------------------------
Ricoh Major Account Program Master Rehab and Healthcare of Cape 4/12/00 Unknown.
Contract for Purchase and/or Full Coral and Ricoh Corporation
Maintenance
------------------------------------------------------------------------------------------------------------------------------
Loan Agreement for purchase of Cape Coral Rehab & Healthcare and 9/12/00 Unknown.
aviary Oak Creek Aviaries
------------------------------------------------------------------------------------------------------------------------------
Equipment Lease Contract for Rehabilitation & Healthcare 6/1/01 42 months.
Leases Under $25,000 Center of Cape Coral and Culligan
Water Conditioning
------------------------------------------------------------------------------------------------------------------------------
Equipment Lease Agreement Vencor Inc. d/b/a Rehabilitation 9/30/96 Expired.
& Healthcare Center of Cape Coral
and Copia Business Systems Inc.
------------------------------------------------------------------------------------------------------------------------------
Steri Safe Service Agreement Vencor Rehab & Health Care and 9/20/02 Automatic renewal of each 3 year term;
Stericycle Agreement may be terminated at the end
of any term with 60 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
26
Casa Xxxx Rehabilitation & Extended Care
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Staffing Agreement pursuant Unexecuted Undated 1 year renewals unless terminated by
availability of qualified staff to either party with 30 days prior written
provide services for the notice to the other party.
Facility's patients
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services PersonaCare of Bradenton d/b/a 6/1/02 1 year renewals unless terminated by
Agreement Casa Xxxx Rehab & Extended care either party upon no less than 30 days
and Dr. Xxxxxx Xxxxxx prior written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Casa Xxxx Health Care and Vencor 1/1/99 1 year renewals unless notice of
Hospital Tampa non-renewal is provided not less than 90
days prior to the end of the term. It
may be terminated earlier if either
party materially breaches this
Agreement.
------------------------------------------------------------------------------------------------------------------------------
Continuation Certificate Personacare of Bradenton d/b/a 5/25/02 Expires on 5/25/03.
Casa Xxxx Rehabilitation and
Extended Care # 1217
------------------------------------------------------------------------------------------------------------------------------
Contract for the provision of Casa Xxxx and Xxxxxxx' Mobile 6/1/02 Unknown if this Contract may be
certain provider services to Diagnostics automatically renewed; It may be
Facility canceled by either party upon 30 days
written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Skilled Nursing Facility (SNF) 105327 Casa Xxxx Rehab and 11/1/02 Through October 31, 2005 and/or until
Memorandum of Agreement (MOA) Extended Care and Florida Medical such time as both parties deem a new
Quality Assurance, Inc. Agreement is necessary.
------------------------------------------------------------------------------------------------------------------------------
Medical Record Consultant Casa Xxxx Rehab & Extended Care 2/7/00 Expired.
Agreement and LTD Medical Record Consulting
Firm
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Laboratory Casa Xxxx Rehab & Extended Care 7/13/01 1 year renewals unless terminated by
Services and Midwest Medical Laboratory either party with 30 days written notice
prior to the expiration of this
Agreement.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Consultant Dietitian Casa Xxxx Rehab and Xxxxx Xxxxx 11/11/00 Unknown if this Contract may be
Services R.D., X.X. automatically renewed; It may be
canceled by either party with 30 days
written notice.
------------------------------------------------------------------------------------------------------------------------------
Long-Term Care Facility Outpatient Casa Xxxx Rehab & Extended Care 5/1/00 Expired.
Dialysis Services Agreement and Bio-Medical Applications of
Florida Inc., d/b/a Bio-Medical
Applications of Bradenton
------------------------------------------------------------------------------------------------------------------------------
Contract for dental care services Casa Xxxx Rehab & Extended Care 6/25/02 Automatic renewal unless notified 60
and Xxxxxxx X. Xxxxxxx D.D.S. days prior to the anniversary date; This
Agreement may be terminated by either
party with 30 days prior written notice
to the other party.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Services to provide Casa Xxxx Rehab & Extended Care 11/16/98 1 year renewals unless terminated by
medical oxygen and healthcare and MEDOX Corporation either party with 30 days prior written
equipment services to the Facility notice.
------------------------------------------------------------------------------------------------------------------------------
27
------------------------------------------------------------------------------------------------------------------------------
Service Agreement to establish the PersonaCare of Bradenton and 10/1/96 Automatic renewal; Either party may
position of Medical Director of Xxxxxx X. Xxxxxxxxx terminate this Agreement without cause
the Facility to assist the effective at any time giving the other
Facility to better provide party written notice at least 30 days
services to its residents prior to the effective date of
termination.
------------------------------------------------------------------------------------------------------------------------------
Podiatric Services Agreement Casa Xxxx Rehab & Extended Care 2/1/01 1 year renewals unless terminated by the
and KG Health Partners, Inc. following: with cause by either party
upon default by the other, without cause
by either party upon 60 days advance
written notice given to the other party
or bankruptcy.
------------------------------------------------------------------------------------------------------------------------------
Full Membership Service Agreement PersonaCare of Bradenton and 3/10/97 Unknown if this Agreement can be
with Staftrack Inc. Staftrack, Inc. automatically renewed; It may be
terminated by Member with 20 days
written notice and StafTrack with 30
days written notice to Member except in
the event that StafTrack would suffer
unreasonable loss by not discontinuing
or amending such services.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #1217 and Pitney 11/10/98 26 months.
Lease Agreement Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Ecotemp Lease Agreement Casa Xxxx and Ecolab Inc. 7/16/02 Expires on 7/04.
------------------------------------------------------------------------------------------------------------------------------
28
Kindred Rehabilitation & Nursing Center of Broward
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Physician Services Agreement North Broward Rehabilitation & 8/1/99 From 9/1/99 for 1 year with automatic
Nursing Center and Dental renewals and may be terminated upon at
Horizons least 30 days advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Dialysis Services Back-up Kindred Rehab and Davita Ft. 9/1/02 From 9/1/02 for 1 year with automatic
Agreement Lauderdale Renal Associates renewals and may be terminated upon 30
days advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Long Term Care Facility, Kindred Rehab Center and Fort 3/23/02 3/23/02 through 3/23/03 with automatic
Outpatient Dialysis Services Lauderdale Artificial Kidney one-year renewals and may be terminated
Agreement Center upon 30 days advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Long Term Care Facility, North Broward Rehabilitation & 10/20/98 9/23/98 with automatic 1 year renewals
Outpatient Dialysis Services Nursing Center and Fort and may be terminated upon 30 days
Agreement Lauderdale Artificial Kidney advanced written notice.
Center
------------------------------------------------------------------------------------------------------------------------------
Outpatient Dialysis Service North Broward Rehabilitation & Unknown. Unknown.
Agreement Nursing Center and Complete
Dialysis Care, Inc. of Coral
Springs
------------------------------------------------------------------------------------------------------------------------------
Hospice Care of Broward County, Hospice Care of Broward County Unknown. Unknown.
Inc. Agreement and North Broward Rehab & Nursing
Center
------------------------------------------------------------------------------------------------------------------------------
Agreement of service to be Hospice by the Sea, Inc. and 6/16/98 Automatic 1 year renewals unless sooner
provided by Hospice and Nursing North Broward Rehabilitation & terminated as provided by Article XIV of
Facility Nursing Center this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Vitas Healthcare Corporation of Vitas Healthcare Corporation 8/20/99 Automatic 1 year renewals unless sooner
Florida Agreement with North of Florida and North Broward terminated as provided by Article VII of
Broward Rehabilitation and Nursing Rehabilitation and Nursing Center this Agreement.
Center
------------------------------------------------------------------------------------------------------------------------------
Visual Health Service Agreement North Broward Rehabilitation and 12/1/98 From 12/1/98, to remain in force
Nursing Center and Eye-Med Visual indefinitely subject to termination by
Services either Party upon 60 days written
notice.
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services and North Broward Rehabilitation and 12/1/98 From 12/1/98 for a period of 3 years;
Consulting Agreement Nursing Center and Vencare Automatic 1 year renewals unless
Pharmacy Services terminated by Pharmacy on account of
Facility's failure to pay outstanding
bills.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement North Broward Rehabilitation and 7/1/98 Automatic 1 year renewals and may be
Nursing Center and Vencor terminated upon 90 days advanced written
Hospital Fort Lauderdale notice.
------------------------------------------------------------------------------------------------------------------------------
Mobile Diagnostics Services Vencor Hospital Ft. Lauderdale 9/29/97 Automatic 1 year renewals and may be
Agreement and Persona Care - Broward terminated upon 30 days advanced written
notice.
------------------------------------------------------------------------------------------------------------------------------
Diagnostic Services Proposal for North Broward Rehabilitation and 11/1/99 Agreement to be revised on an annual
North Broward Rehab Nursing Center and Prestige basis before renewal.
Diagnostic Associates, Inc.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Consulting Services North Broward Rehabilitation and 8/1/99 1 year term commencing on 8/1/99, with
Nursing Center and Louis Max, automatic 1 year renewals and may be
LCSW terminated upon 30 days advanced written
notice.
------------------------------------------------------------------------------------------------------------------------------
29
------------------------------------------------------------------------------------------------------------------------------
Social Services Consultant Louis Max, LCSW and Persona Care 10/1/96 Agreement is indefinite and may be
Retainer Agreement of Broward terminated upon 60 days written notice
or when either Party fails to abide by
its contents.
------------------------------------------------------------------------------------------------------------------------------
Managed Service Contract North Broward Rehabilitation and 9/1/98 This Agreement shall continue until
Nursing Center and Insight Health terminated by either party with 30 days
Network, Inc. written notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Records Consultant North Broward Rehabilitation and 9/1/98 This Agreement will continue
Agreement Nursing Center and Medical indefinitely.
Records Management, Inc.
------------------------------------------------------------------------------------------------------------------------------
Maintenance Agreement of sanitary Colonial Palms Nursing Home East 4/1/93 Expired.
sewage and Pumping Station Service
Center
------------------------------------------------------------------------------------------------------------------------------
Maintenance Agreement to restore North Broward Rehabilitation and 6/1/99 Term is monthly.
malfunctioning equipment Nursing Center and Telecorp Inc.
------------------------------------------------------------------------------------------------------------------------------
Medical Instrument Operating SNF North Broward Rehabilitation and 3/15/02 1 year contract and may be terminated by
Lease Agreement Nursing Center and Accelerated Lessor following 10 days notice to
Care Plus Corp. Lessee; or by either Party upon 30 days
advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Letter from the School Board of N/A 6/15/00 N/A.
Broward County, Florida
------------------------------------------------------------------------------------------------------------------------------
Outpatient Dialysis Service Colonial Palms East and 1997-98 Expired.
Agreement Artificial Kidney Center of
Broward
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #1218 and Pitney 12/11/01 48 months.
Lease Agreement Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Beauty Shop Services Agreement North Broward Rehabilitation and 8/1/99 Automatic 1 year renewals and may be
Nursing Center and Xxxxx Xxxxx terminated upon 30 days advanced written
notice.
------------------------------------------------------------------------------------------------------------------------------
Ecotemp Lease Agreement Vencor Inc. d/b/a North Broward 2/6/98 Term is 2 years. Beginning on the first
Rehabilitation and Nursing Center day of the first service period. Either
and Ecolab Inc. party may terminate Agreement upon 60
days advanced written notice.
------------------------------------------------------------------------------------------------------------------------------
Pest Elimination Agreement North Broward Rehabilitation and 8/98 Agreement effective for an original
Nursing Center and Ecolab Inc. period of 1 year and shall renew itself
on a monthly basis thereafter, until
terminated upon 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Preventative Maintenance Agreement North Broward Rehabilitation and 10/1/98 Expired.
Emergency Generator Systems Nursing Center and Circle
Generator Service Inc.
------------------------------------------------------------------------------------------------------------------------------
North Broward Rehabilitation and North Broward Rehabilitation and 5/6/98 Expired.
Nursing Center Landscape & Nursing Center and Tri-County
Groundkeeping Proposal Landscape Inc.
------------------------------------------------------------------------------------------------------------------------------
30
------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Fire Protection Systems Colonial Palms East Nursing 8/12/93 1 year term with automatic 1 year
Company (I) Contract for Automatic Center and Xxxxxxxx Fire renewals and may be terminated upon 30
Sprinkler Equipment Inspection Protection Systems Company, Inc. days advanced written notice.
(II) Contract for testing of fire
alarm and detection equipment
(III) Combined Contract for the
Above Programs I & II
------------------------------------------------------------------------------------------------------------------------------
Biotrack Medical Waste Service North Broward Rehabilitation and 11/4/98 Unknown.
Agreement Nursing Center and BFI Waste
Systems of North America, Inc.
------------------------------------------------------------------------------------------------------------------------------
Natural Gas Sales Agreement North Broward Rehabilitation and 1/1/00 Initial term is 24 months from the date
Nursing Center and Perry Gas of first gas deliveries.
Companies, Inc.
------------------------------------------------------------------------------------------------------------------------------
31
Highland Pines Rehabilitation & Nursing Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Institutional Medicaid Provider Highland Pines Nursing Manor and 4/8/02 Automatic renewal; Agreement may be
Agreement Agency for Health Care terminated with 30 days advance notice.
Administrator
------------------------------------------------------------------------------------------------------------------------------
Manager Service Agreement Highland Pines Rehab & Nursing 11/15/02 Automatic renewal; Agreement may be
Center and Insight Health terminated with 30 days advance notice.
Network, Inc.
------------------------------------------------------------------------------------------------------------------------------
Ameri-Pride Inc. Proposal/Contract Highland Pines Rehab and 1/1/03 Automatic renewal; Agreement may be
Ameri-Pride Inc. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
BayCare Outreach Laboratory Highland Pines / Highland Terrace 7/17/01 Automatic renewal; Agreement may be
Services Agreement and BayCare Outreach Laboratory terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Radiology Services Agreement Advanced Radiology Services, Inc. 3/1/01 Automatic renewal; Agreement may be
and Highland Pines terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Record Consultant Highland Pines Nursing and Rehab 6/18/01 Automatic renewal; Agreement may be
Agreement Center and LTD Medical Record terminated with 30 days advance notice.
Consulting Firm
------------------------------------------------------------------------------------------------------------------------------
PersonaCare of Clearwater Service Healthcare Services Group, Inc. 3/13/98 Agreement may be cancelled 120 days
Agreement and Vencor, Inc. which Inc.ludes after 3/9/98 provided a 30 day written
the attached facility known as notice has been given.
PersonaCare of Clearwater
------------------------------------------------------------------------------------------------------------------------------
Podiatric Services Agreement Highland Pines Rehab and Nursing 11/25/02 Automatic renewal; Agreement may be
and KG Health Partners, Inc. terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Service Agreement Highland Pines Rehabilitation & 2/1/02 Automatic renewal; Agreement may be
Nursing Center and Xxx Xxxxx terminated with 30 days advance notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Service Highland Pines Rehabilitation & 9/1/02 Automatic renewal; Agreement may be
Agreement Nursing Center and Xxxxxxx Xx, terminated with 30 days advance notice.
M.D.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #1220 and Pitney 1/?/02 48 months.
Lease Agreement Xxxxx Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
32
Pompano Rehabilitation & Nursing Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Co-Medical Director Services Pompano Rehab & Nursing Center 8/l/01 Initial term of 1 year and shall be
Agreement and Xxxxx Xxxxxxxxxxx M.D. automatically annually renewed for a 1
year period unless otherwise terminated
as provided in this Agreement. Either
party may terminate this Agreement
without cause upon no less than 30 days
prior written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
MDU Service Agreement - Hospital PersonaCare of Pompano West, Inc. 3/1/02 Expired.
and Mediaone of Greater Florida,
Inc.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement Pompano Rehab & Nursing and 7/1/98 Initial term of 1 year and thereafter it
Vencor Hospital Fort Lauderdale shall be renewed automatically for
successive periods of 1 year. It may be
terminated earlier if either party
breaches this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Agreement with Hospice pursuant Pompano Rehab & Nursing Center 6/11/99 1 year renewals and may be terminated
services to be provided by Hospice and Hospice Care of Broward with or without cause by providing to
and Center County, Inc. the other party at least 30 days written
notice of termination.
------------------------------------------------------------------------------------------------------------------------------
Vitas Healthcare Corporation of PersonaCare of Pompano West, Inc. 7/3/02 Automatic renewal; This Agreement may be
Florida Agreement for Nursing d/b/a Pompano Rehabilitation and terminated by either party without cause
Facility Services Nursing Center and Vitas by providing to the other party at least
Healthcare Corporation of Florida 60 days prior written notice of
termination.
------------------------------------------------------------------------------------------------------------------------------
Agreement for the Provision of Kindred Nursing Centers East, LLC 6/20/02 1 year renewals unless terminated by
Hospice Service d/b/a Pompano Rehabilitation and either party. A 30 days advance written
Nursing Center and North Broward notice must be given to the other party.
Hospital District d/b/a Hospice
Care of Gold Coast Facility
Health
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement for emergency Pompano Rehab and Edgewater 11/10/02 This Agreement will continue in effect
needs of the Facility's residents Pointe Estates unless either party withdraws by giving
30 days written notice to the other
party of its intention.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Patient Transfer Pompano Rehabilitation and 2/2/98 This Agreement may be terminated by
Nursing Center and Boca Raton either party upon 90 days written notice
Community Hospital and will be automatically terminated
should either party fail to maintain its
licensure or certification.
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement between two Pompano Rehabilitation and 2/2/98 1 year renewals upon mutual written
facilities in the event that Nursing Center and Xxxxx Agreement of the parties. Either party
either Facility requires the HealthSystem Hospitals, Inc. may terminate this Agreement upon a 30
services of the other Facility d/b/a West Boca Medical Center days written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Pompano Rehabilitation and 10/1/97 This Agreement shall automatically be
Nursing Center and North Broward renewed each year, except that either
Medical Center party may withdraw by giving 30 days
written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
33
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement PersonaCare - Pompano and North 10/1/97 This Agreement shall automatically be
Broward Medical Center renewed each year, except that either
party may withdraw by giving 30 days
written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Patient Transfer Agreement Colonial Palms West and Holy 11/1/94 This Agreement shall automatically be
Cross Hospital renewed each year, except that either
party may withdraw by giving 30 days
written notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Patient Transfer Pompano Rehabilitation and 2/2/98 This Agreement may be terminated by
Nursing Center and Northwest either party upon 90 days written notice
Medical Center and will be automatically terminated
should either party fail to maintain its
licensure or certification.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Respiratory Care Colonial Palms - West and 11/1/95 This Agreement shall be renewed for
Services Northwest Medical Center successive 1 year periods unless either
party notifies the other in writing of
its intention not to renew within 60
days prior to the end of the then
current term.
------------------------------------------------------------------------------------------------------------------------------
Vencor, Inc. Service Agreement for Pompano Rehabilitation and 8/30/99 This Agreement will continue unless
all necessary management, Nursing Center and Healthcare canceled by either party 30 days after
supervision, etc. to perform the Services Group, Inc. the services begin, provided a 30 day
housekeeping and laundry services written notice has been given.
on the premises of the Facility.
------------------------------------------------------------------------------------------------------------------------------
Managed Service Agreement for the Pompano Rehabilitation and 1/2/02 This Agreement will continue until
provision of behavioral services Nursing Center and Insight Health canceled by either party with 30 days
to clients Network written notice, except in the case of
breach, in which either party can
terminate immediately.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Podiatric Services Pompano Rehab and Foot Care 12/17/01 This Agreement will remain in full force
for reasonable access to routine Consultants Inc. unless terminated by either party by
and emergency Podiatric care giving 30 days written notice prior to
the expiration date of the contract.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Services regarding Pompano Rehabilitation and 1/6/03 1 year renewals unless terminated by
Portable Medical Diagnostics Nursing Center and Portable either party with 30 days written notice
Medical Diagnostics to the other party.
------------------------------------------------------------------------------------------------------------------------------
Visual Health Service Agreement Pompano Rehabilitation and 10/8/98 This Agreement shall remain in force
Nursing Center and Eye-Med Visual indefinitely unless terminated by either
Services party upon 60 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Dietary Services Agreement Pompano Rehabilitation and 1/9/03 1 year renewals and can be terminated
Nursing Center and Xxxx Xxx Beer by either party for any reason by giving
BSCD 30 days prior written notice to the
other party.
------------------------------------------------------------------------------------------------------------------------------
Physician Services Agreement Pompano Rehabilitation and 1/6/03 1 year renewals unless terminated by
Nursing Center and Xxxxxxxx either party with 30 days prior written
Xxxxxx DDS notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
SNF/LTCF Outpatient Dialysis Pompano Rehabilitation and 6/6/02 1 year renewals unless terminated by
Services Agreement Nursing Center and Bio-Medical either party with 30 days prior written
Applications of Florida, Inc. notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Services regarding Pompano Rehabilitation and Not dated 1 year renewals unless terminated by
laboratory tests, physician and Nursing Center and Oracle Lab either party with 30 days prior written
billing information notice to the other party.
------------------------------------------------------------------------------------------------------------------------------
34
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement under which Colonial Palms West and AMISUB, 8/4/94 1 year renewals. It may be terminated
patients under the care of one Inc. d/b/a North Ridge Medical by mutual Agreement or by either party
party may be transferred to the Center upon the default of the other party of
care of the other party any term.
------------------------------------------------------------------------------------------------------------------------------
Social Services Consultant The Louis Max Group 9/?/00 Duration of this Agreement is indefinite
Retainer Agreement unless terminated by providing the other
party a 60 day written notice of such
intent or when either party fails abide
by its contents.
------------------------------------------------------------------------------------------------------------------------------
Social Services Consulting Colonial Palms West and Louis 6/1/96 Automatic renewal; This Agreement can be
Agreement Max, LCSW, ACSW, CCM terminated with 30 days written notice
by either party.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Fac. # 1232 and Pitney Xxxxx 1/13/03 63 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
Pitney Xxxxx Credit Corporation Vencor Inc., Pompano 6/14/99 Unknown.
Lease Agreement Rehabilitation and Nursing Center
and Pitney Xxxxx Credit
Corporation
------------------------------------------------------------------------------------------------------------------------------
Fire Alarm Service Agreement Colonial Palms West and 12/8/94 Unknown.
Bass-United Fire & Security
Systems, Inc.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement for Non Pompano Rehab Nursing Center and 4/1/99 Expired.
Hazardous Wastes Waste Management Inc. of Florida
------------------------------------------------------------------------------------------------------------------------------
Pest Elimination Agreement Persona Care of Pompano and 7/02/97 This Agreement shall be effective for an
Ecolab Pest Elimination Services original period of 1 year and shall
renew itself from month to month
thereafter, unless terminated by either
party on 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Biomedical Equipment PM Only Pompano Rehab & Nursing and Pace 2/2/01 Expired.
Agreement Medical Electronics, INC.
------------------------------------------------------------------------------------------------------------------------------
Photocopy Service Agreement Pompano Rehab and Nursing Center 2/28/02 Unknown.
and Minuteman Press
------------------------------------------------------------------------------------------------------------------------------
Lease Agreement for Vodavi Triad Vencor Inc., d/b/a Pompano Rehab 5/11/99 Unknown.
Phone System & Nursing and Global
Telecommunications
------------------------------------------------------------------------------------------------------------------------------
35
The Oaks at Avon
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services The Oaks at Avon and Xx. Xxxxxxx 8/30/01 Automatic renewal; After initial term of
Agreement Brace 1 year, Agreement may be terminated
without cause upon 30 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Medical The Oaks at Avon and Xx. Xxxxxxx 7/5/01 Unknown.
Director Contract Brace
------------------------------------------------------------------------------------------------------------------------------
Postage Equipment lease Increase Pitney Xxxxx Credit Corporation 3/10/99 Expired.
for three years and Xxxxx Xxxxxxxx (Avon Park
Fac. #246)
------------------------------------------------------------------------------------------------------------------------------
36
The Rehabilitation Center of the Palm Beaches
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Agreement with Hospice for Hospice The Rehabilitation Center of the 2/9/99 Automatic renewal; Agreement may be
Routine Home Care Services Palm Beaches and Hospice of Palm terminated with 30 days prior written
Beach County, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement of service to be The Rehabilitation Center of the 5/21/02 Automatic renewal; Agreement may be
provided by Hospice and Nursing Palm Beaches and Hospice by the terminated with 30 days prior written
Facility Sea, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
SNF/LTCF Outpatient Dialysis Rehabilitation Center of the Palm 12/12/00 Automatic renewal; Agreement may be
Services Agreement Beaches and Bio-Medical terminated with 30 days prior written
Applications of Florida, Inc. notice.
d/b/a FMC West Palm Beach
------------------------------------------------------------------------------------------------------------------------------
Dialysis Services Agreement Rehabilitation Center of the Palm 9/12/00 Automatic renewal; Agreement may be
Beaches and Atlantic Kidney terminated with 30 days prior written
Centers, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Dialysis Services Agreement Xxxxxxxx Dialysis Center and 8/24/00 Automatic renewal; Agreement may be
Rehabilitation Center of the Palm terminated with 30 days prior written
Beaches notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement of inspection, testing Rehabilitation Center of the Palm 1/23/02 Automatic renewal; Agreement may be
and maintenance for fire Beaches and Xxxxxxxx Fire terminated with 60 days prior written
protection Sprinklers, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Consulting Agreement for Dentistry Rehabilitation Center of the Palm 10/19/00 Automatic renewal; Agreement may be
Services Beaches and Xxxx Xxxx, DDS terminated with 30 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional Rehabilitation Center of the Palm 9/29/00 Expires on 9/9/03 unless terminated with
Consulting and Advisory Services Beaches and A&M Hearing Aid good cause upon 30 days written notice.
Associates, Inc.
------------------------------------------------------------------------------------------------------------------------------
Real Estate Lease Rehabilitation Center of the Palm 7/1/00 Automatic renewal; Agreement may be
Beaches and North Point Surgery terminated with 30 days prior written
and Laser Center notice.
------------------------------------------------------------------------------------------------------------------------------
Transfer Agreement between The Rehab. Center of the Palm 10/2/00 Automatic renewal and may be terminated
institutions Beaches and Palm Beach Gardens without cause upon 30 days written
Community Hospital, Inc. d/b/a notice; immediately after a facility
Palm Beach Gardens Medical Center closes or discontinues operating or a
facility loses its license.
------------------------------------------------------------------------------------------------------------------------------
Mutual Aid Agreement or Statement Rehabilitation Center of the Palm 7/23/97 Unless otherwise notified this Agreement
of Understanding Beach and Palm Beach medical will automatically be renewed and may be
Transport terminated upon 30 days written notice.
------------------------------------------------------------------------------------------------------------------------------
Laboratory Services Agreement The Rehabilitation Center of the 9/26/00 Automatic renewal; Agreement may be
Palm Beaches and South Florida terminated with 30 days prior written
Clinical Services, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Facility Agreement to provide The Rehabilitation Center of the 10/1/01 Automatic renewal; Agreement may be
assessments, group and individual Palm Beaches and Xxxxxx Health terminated with 30 days prior written
counseling sessions to clients at Care & Development, Inc. notice.
the Facility
------------------------------------------------------------------------------------------------------------------------------
St. Mary's Hospital, Inc. Transfer The Rehabilitation Center of the 5/1/01 Expires on 5/1/03 unless terminated
Agreement Palm Beaches and St. Mary's earlier with 30 days prior written
Hospital, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
37
------------------------------------------------------------------------------------------------------------------------------
Institutional Medicaid Provider The Rehabilitation Center of the 7/8/02 Expires on 7/31/05.
Agreement Palm Beaches and Florida Agency
for Health Care Administrator
------------------------------------------------------------------------------------------------------------------------------
Contract for Health Information The Rehabilitation Center of the 5/11/00 It is Unknown whether this Agreement
Management Services Palm Beaches and Xxxxx Xxxxxx, ended on 5/1/01. The parties may agree
RHIA, HRM in writing to a continuation beyond the
termination date.
------------------------------------------------------------------------------------------------------------------------------
Ancillary Services Agreement America's Choice Medical Plans, 7/1/03 Continues in effect until terminated;
Inc. and Rehabilitation Center of may be terminated for cause by the
the Palm Beach, Inc. facility upon failure to cure upon 30
days' notice, which termination shall be
effective upon 60 days' notice to Health
Plan, DOI, HFCA and the Agency; Health
Plan my terminate on 60 days notice to
Facility and DOI.
------------------------------------------------------------------------------------------------------------------------------
Contractual Agreement for Portable The Rehabilitation Center of the 10/2/00 Automatic renewal; Agreement may be
Radiology Procedures Palm Beaches and Portable Medical terminated with 30 days prior written
Diagnostics, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
Agreement for education and The Rehabilitation Center of the 2/7/01 Expired.
training of students of nursing Palm Beaches and the District
program Board of Trustees of the Palm
Beach Community College
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Consulting Kindred Hospitals East, LLC d/b/a 10/1/01 Agreement will be renewed automatically
Agreement Vencare Pharmacy Boca Raton and unless notice of non-renewal is provided
Kindred Nursing Centers East, LLC 90 days prior to end of term; Agreement
d/b/a The Rehabilitation Center may be terminated earlier if either
of the Palm Beaches party materially breaches Agreement.
------------------------------------------------------------------------------------------------------------------------------
Solicitation, Offer and Award of Offeror: Rehabilitation Center of 5/14/03 60 calendar days for acceptance of
Contract to Place VA Patients in the Palm Beaches. offer; contract term expires 5/30/04; VA
Nursing Home Offeree: VA Medical Center has the right to remove any of its
(West Palm Beach) patients at any time; VA may extend term
of contract by written notice within 90
days of expiration, not to exceed 3
years.
------------------------------------------------------------------------------------------------------------------------------
Agreement to Provide Professional Convalescent Center of the Palm 8/9/93 Automatic renewal; Agreement may be
Consulting and Advisory Services Beaches and Xx. Xxxx Xxxxxxxx, terminated with 30 days prior written
DPM and Xx. Xxxxx Xxxxx, DPM notice.
------------------------------------------------------------------------------------------------------------------------------
St. Mary's Hospital, Inc. Transfer Rehabilitation Center of the Palm 3/1/99 Expired.
Agreement for Acute Care Services Beaches and St. Mary's Hospital,
Inc.
------------------------------------------------------------------------------------------------------------------------------
Notification Letter of QOC N/A 3/27/01 N/A.
Approval
------------------------------------------------------------------------------------------------------------------------------
Option to Purchase or Re-Rent Nellcor Puritan Xxxxxxx Hospital 7/9/98 Unknown; This Agreement may be
Agreement Credit Corp and Vencor Operating terminated at the end of the first 27
Inc. months.
------------------------------------------------------------------------------------------------------------------------------
Service Agreement regarding Rehabilitation Center of the Palm 5/18/94 Unknown.
transportation of biohazard waste Beaches and Xxxxxxxx-Xxxxxx
Industries of Fla., Inc.
------------------------------------------------------------------------------------------------------------------------------
Beauty Shop Services Agreement Rehabilitation Center of the Palm 2/17/99 Automatic renewal; Agreement may be
Beaches and Xxxxxx Xxxxxx terminated with 30 days prior written
notice.
------------------------------------------------------------------------------------------------------------------------------
38
------------------------------------------------------------------------------------------------------------------------------
Agreement for Professional Rehabilitation Center of the Palm 10/9/01 Automatic renewal; Agreement may be
Investigative Services Beaches and Sureway Investigative terminated with 30 days prior written
Agency notice.
------------------------------------------------------------------------------------------------------------------------------
Exterminating Service Agreement The Rehabilitation Center of the 10/3/02 Expired.
Palm Beaches and Ameribest
Exterminating, Co.
------------------------------------------------------------------------------------------------------------------------------
Exterminating Service Agreement The Rehabilitation Center of the 5/28/03 One year, automatic renewal; Agreement
Palm Beaches and Ameribest may be terminated with 30 days prior
Exterminating, Co. written notice.
------------------------------------------------------------------------------------------------------------------------------
Landscape Maintenance Agreement The Rehabilitation Center of the 10/1/02 30 cancellation notice necessary; Not
Proposal Palm Beaches and Horti Care applicable during first year of service.
------------------------------------------------------------------------------------------------------------------------------
Medical Gases Supply Agreement The Rehabilitation Center of the 11/1/00 Automatic renewal; Agreement may be
Palm Beaches and MEDIQ/PRN Life terminated with 30 days prior written
Support Services, Inc. notice.
------------------------------------------------------------------------------------------------------------------------------
39
Boca Raton Rehabilitation Center
------------------------------------------------------------------------------------------------------------------------------
Name of Agreement Parties Date Termination Date
------------------------------------------------------------------------------------------------------------------------------
Medical Director Service Agreement Boca Raton Rehabilitation and 2/1/03 Unknown.
Xxxxx Xxxxxx, M.D.
------------------------------------------------------------------------------------------------------------------------------
Agreement for Dialysis Services Boca Raton Rehabilitation and 3/27/02 Unknown.
between Boca Raton Rehabilitation Artificial Kidney Center
and Artificial Kidney Center
------------------------------------------------------------------------------------------------------------------------------
Clinical Laboratory Services Boca Raton Community Hospital, 2/18/02 Automatic renewal; This Agreement may be
Agreement Inc. and Boca Raton terminated with cause upon 10 days
Rehabilitation Center prior written notice to the other party
or without cause upon 30 days prior
written notice.
------------------------------------------------------------------------------------------------------------------------------
Healthcare Services Group, Inc. Healthcare Services Group, Inc. 7/19/00 Automatic renewal; This Agreement may be
Service Agreement and Vencor Nursing Centers East terminated 30 days after July 19, 2000,
LLC provided 30 days prior written notice.
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Boca Raton Rehabilitation and 2/1/02 Unknown.
Agreement Xxxxx Xxxxxx M.D.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Vencor Inc. #610 and Pitney Xxxxx 12/4/97 16 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
40
The Abbey
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Austin Medical, The Abbey Rehabilitation and 5/23/02 Unknown.
Inc. Staffing Agreement Nursing Center and Austin
Medical, Inc.
------------------------------------------------------------------------------------------------------------------------------
Radiology Services Agreement The Abbey Rehabilitation and 3/15/01 Automatic renewal; It may be terminated
Nursing Center and Advance without cause by either party upon 30
Radiology Services, Inc. day prior written notice to the other
party, specifying the effective date of
termination.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Advanced The Abbey Rehabilitation and 5/23/02 Unknown.
Radiology Services Agreement Nursing Center and Advance
Radiology Services, Inc.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Physician Abbey Rehabilitation and Nursing 8/8/01 Unknown.
Service Agreement Center and Xx. Xxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Physician Abbey Rehabilitation and Nursing 8/8/01 Unknown.
Service Agreement-Optical Center and Dr. Xxxxxxx Xxxxxxxx
Services
------------------------------------------------------------------------------------------------------------------------------
Agency for Health Care Abbey Rehabilitation and Nursing 8/30/02 Expires on 3/31/04.
Administration Electronic Center and Agency for Health Care
Remittance Voucher Agreement Administration
------------------------------------------------------------------------------------------------------------------------------
BayCare Outreach Laboratory Abbey Rehabilitation and Nursing 9/21/01 This Agreement will remain in force
Services Agreement Center and BayCare Outreach until 30 days written notice is given by
Laboratory either party to terminate.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Inspection Abbey Rehabilitation and Nursing 8/8/01 Unknown.
Service Contract Center and Industrial Fire
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Beauty Shop Abbey Rehabilitation and Nursing 5/23/02 Unknown.
Services Agreement Center and Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------
Medical Director Services Abbey Rehabilitation and Nursing 2/1/00 Initial term of 1 year and annually
Agreement Center and Xxxxxx Xxxxxxxx, M.D. automatically renewed for a 1 year
period unless otherwise terminated as
provided in this Agreement.
------------------------------------------------------------------------------------------------------------------------------
First Amendment to Medical Abbey Rehabilitation and Nursing 5/23/02 Unknown.
Director Services Agreement Center and Xx. Xxxxxx Xxxxxxxx
------------------------------------------------------------------------------------------------------------------------------
Mental Health Service Agreement Abbey Rehabilitation and Nursing 9/30/02 Period of 1 year and automatically
Center and Xxxxxxxx X. Xxxxxxx, renewed on the anniversary date for an
M.D. additional year unless terminated by
either party at any time upon 30 days
notification.
------------------------------------------------------------------------------------------------------------------------------
Pharmaceutical Services Agreement PersonaCare of St. Petersburg, 10/14/02 This Agreement shall be renewed
Inc. d/b/a Abbey Rehabilitation automatically for successive periods of
and Nursing Center and Kindred 1 year unless notice of non-renewal is
Hospitals East, LLC d/b/a Kindred provided not less than 90 days prior to
Pharmacy Services the end of a term.
------------------------------------------------------------------------------------------------------------------------------
Executive Commercial Services, Abbey Nursing Home and Executive 1/1/93 Term of 12 months and renewable unless
Inc. Lawn Service Contract Commercial Services, Inc. one party notifies the other in writing
30 days prior to the expiration date.
------------------------------------------------------------------------------------------------------------------------------
41
------------------------------------------------------------------------------------------------------------------------------
Beauty Shop Services Agreement Abbey Rehabilitation and Nursing 5/23/02 Term of 1 year and shall be
Center and Xxxxx Xxxxxx automatically renewed for successive 1
year periods unless otherwise terminated
as provided in this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Ecotemp Lease Agreement Abbey Rehabilitation and Nursing No date Period of 2 years; Either party may
Center and Ecolab Inc. terminate this Agreement at the end of
the initial term or on the anniversary
of that date by giving at least 60 days
prior notice in writing.
------------------------------------------------------------------------------------------------------------------------------
Pest Control Service Agreement Abbey Rehabilitation and Nursing 2/11/03 Period of 1 year and shall continue
Center and Hawkeye Pest Control, thereafter unless terminated at any time
Inc. by either party within the first year
with a 60 day notice in writing or after
the first year with a 30 day notice in
writing.
------------------------------------------------------------------------------------------------------------------------------
Pittney Xxxxx Credit Corporation Fac. # 1233 and Pitney Xxxxx 12/12/94 21 months.
Lease Agreement Credit Corporation
------------------------------------------------------------------------------------------------------------------------------
42
SCHEDULE 3.07(a)
COMPUTER SOFTWARE AND SYSTEMS TO BE RETAINED
List of Retained Computer Equipment
Schedule 3.07(a)
Number
Total Cost of of
Network # of Total Cost of Rehab Total cost
Facility # Facility Name Equipment Printers Printers PC's of PC's Facility Total
------------------------------------------------------------------------------------------------------------------------------------
115 Rehab.Ctr of Palm Beach $ 1,900.00 2 $ 700.00 2 $ 300.00 $ 2,900.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx $ 3,690.00 1 $ 500.00 1 $ 150.00 $ 4,340.00
------------------------------------------------------------------------------------------------------------------------------------
124 Health Care & Rehab of Xxxxxxx $ 3,100.00 1 $ 500.00 1 $ 150.00 $ 3,750.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxx & Xxx Xxx $ 4,000.00 1 $ 400.00 3 $ 450.00 $ 4,850.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Xxxxx & Healthcare $ 3,100.00 2 $ 1,000.00 3 $1,350.00 $ 5,450.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxx Xxxxxx Xxx Xxxxxxxxx $ 3,680.00 1 $ 400.00 3 $ 450.00 $ 4,530.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxx xx Xxxx Xxx & Xxxxx Ctr $ 1,800.00 2 $ 1,000.00 2 $ 300.00 $ 3,100.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx/XX Xxxxx $ 3,490.00 2 $ 1,000.00 2 $ 300.00 $ 4,790.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxxx Xxxx Xxx $ 3,100.00 2 $ 1,000.00 2 $ 300.00 $ 4,400.00
------------------------------------------------------------------------------------------------------------------------------------
610 Boca Raton Rehab Ctr $ 1,800.00 1 $ 500.00 2 $ 300.00 $ 2,600.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx Healthcare $ 4,100.00 2 $ 900.00 5 $ 750.00 $ 5,750.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx & Xxxxxx Xxxx Xxx xx Xxxxx $ 3,780.00 2 $ 800.00 3 $ 450.00 $ 5,030.00
------------------------------------------------------------------------------------------------------------------------------------
837 Rehab & Health Care Ctr of Capr Coral $ 4,130.00 2 $ 1,000.00 3 $ 450.00 $ 5,580.00
------------------------------------------------------------------------------------------------------------------------------------
1217 Casa Xxxx Rehab $ 3,730.00 1 $ 400.00 3 $ 499.00 $ 4,629.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxxx $ 1,400.00 2 $ 1,000.00 3 $ 450.00 $ 2,850.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxx $ 3,680.00 1 $ 500.00 1 $ 150.00 $ 4,330.00
------------------------------------------------------------------------------------------------------------------------------------
1232 Pompano $ 1,800.00 2 $ 800.00 2 $ 300.00 $ 2,900.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxx $ 3,780.00 1 $ 500.00 1 $ 150.00 $ 4,430.00
------------------------------------------------------------------------------------------------------------------------------------
Sub Totals $56,060.00 28 $12,900.00 42 $7,249.00
Grand Total $76,209.00
List of Retained Computer Equipment
Schedule 3.07(a)
Number
Total Cost of of
Network # of Total Cost of Rehab Total cost
Facility # Facility Name Equipment Printers Printers PC's of PC's Facility Total
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxx xx Xxxx Xxxxx $ 1,900.00 2 $ 700.00 2 $ 300.00 $ 2,900.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx $ 3,690.00 1 $ 500.00 1 $ 150.00 $ 4,340.00
------------------------------------------------------------------------------------------------------------------------------------
124 Health Care & Rehab of Xxxxxxx $ 3,100.00 1 $ 500.00 1 $ 150.00 $ 3,750.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxx & Xxx Xxx $ 4,000.00 1 $ 400.00 3 $ 450.00 $ 4,850.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Xxxxx & Healthcare $ 3,100.00 2 $ 1,000.00 3 $1,350.00 $ 5,450.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxx Xxxxxx Xxx Xxxxxxxxx $ 3,680.00 1 $ 400.00 3 $ 450.00 $ 4,530.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxx xx Xxxx Xxx & Xxxxx Ctr $ 1,800.00 2 $ 1,000.00 2 $ 300.00 $ 3,100.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx/XX Xxxxx $ 3,490.00 2 $ 1,000.00 2 $ 300.00 $ 4,790.00
------------------------------------------------------------------------------------------------------------------------------------
372 Carrollwood Care Ctr. $ 3,100.00 2 $ 1,000.00 2 $ 300.00 $ 4,400.00
------------------------------------------------------------------------------------------------------------------------------------
610 Boca Raton Rehab Ctr $ 1,800.00 1 $ 500.00 2 $ 300.00 $ 2,600.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx Healthcare $ 4,100.00 2 $ 900.00 5 $ 750.00 $ 5,750.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx & Xxxxxx Xxxx Xxx xx Xxxxx $ 3,780.00 2 $ 800.00 3 $ 450.00 $ 5,030.00
------------------------------------------------------------------------------------------------------------------------------------
837 Rehab & Health Care Ctr of Capr Coral $ 4,130.00 2 $ 1,000.00 3 $ 450.00 $ 5,580.00
------------------------------------------------------------------------------------------------------------------------------------
1217 Casa Xxxx Rehab $ 3,730.00 1 $ 400.00 3 $ 499.00 $ 4,629.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxxx $ 1,400.00 2 $ 1,000.00 3 $ 450.00 $ 2,850.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxx $ 3,680.00 1 $ 500.00 1 $ 150.00 $ 4,330.00
------------------------------------------------------------------------------------------------------------------------------------
1232 Pompano $ 1,800.00 2 $ 800.00 2 $ 300.00 $ 2,900.00
------------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxx $ 3,780.00 1 $ 500.00 1 $ 150.00 $ 4,430.00
------------------------------------------------------------------------------------------------------------------------------------
Sub Totals $56,060.00 28 $12,900.00 42 $7,249.00
Grand Total $76,209.00
SCHEDULE 6.03(g)
ENVIRONMENTAL MATTERS
1. Asbestos Operations and Maintenance Programs.
Seller currently has the following asbestos operations and maintenance programs
in effect at the Facilities:
a. Operations and Maintenance Program for Asbestos Containing Material,
H-9114, sent to Xxxxxxx Xxxxx of Xxxxxxx, Xxxxx & Xxxxx, P.C. and Xxxxx Xxxxxxxx
of Cleary, Gottlieb, Xxxxx & Xxxxxxxx by Xxxxxxx X. Xxxxx of Xxxxxxx on June 17,
2003
2. Storage Tanks and Transformers Containing Leaking PCB's.
a. Storage Tanks. There are underground storage tanks at the following
facilities:
i. Carrolwood Care Center
ii. Waldemere Place
iii. Windsor Xxxxx Convalescent Center
iv. Bay Pointe Nursing Pavilion
v. Rehab Center of the Palm Beaches
b. Electrical Transformers Containing PCB's that are Leaking. None.
3. Environmental and Engineering Reports.
Phase 1 and Phase 2 environmental reports and other Florida Institute
Commissioned Reports have been reviewed by Senior Health, Florida Institute and
the New Operators and the contents thereof are satisfactory, and such reports
have been delivered to Kindred prior to the Closing Date.
Schedule 11.03
Diligence Matters - Florida SNFs
1. a) Title Documents
. Fac. 1233 - Title Insurance Commitment dated April 8, 1998
. Fac. 245 - Owner's Title Insurance Policy dated August 4, 1994
. Fac. 372 - Title Insurance Commitment dated May 4, 1998
. Fac. 1217 - Title Insurance Commitment dated April 3, 1998
. Fac. 637 - Owners Title Policy dated July 1, 1995
. Fac. 124 - Owner's Title Policy dated November 13, 1992
. Fac. 1220 - Owner's Title Policy dated April 5, 1995
. Fac. 1218 - Title Insurance Commitment dated April 9, 1998
. Fac. 246 - Leasehold Title Policy dated July 11, 1996
. Fac. 1232 - Title Insurance Commitment dated April 9, 1998
. Fac. 837 - Owner's Title Policy dated September 4, 1991
. Fac. 836 - Owner's Title Policy dated September 3, 1993
. Fac. 125 - Owner's Title Policy dated February 26, 1993
. Fac. 117 - Owner's Title Policy dated September 3, 1993
. Fac. 181 - Owner's Title Policy dated August 30, 1993
. Fac. 268 - Owner's Title Policy dated March 13, 1995
. Fac. 610 - Owner's Title Policy dated October 4, 1991
. Fac. 115 - Owner's Title Policy dated December 30, 1997
1. b) Survey Documents
. Fac. 1233 - Boundary and Improvement Survey dated April 21, 1998 by
American Surveying Company, Inc.
. Fac. 245 - Boundary Survey dated June 22, 1993 by C. Xxxx Xxxxx and
Associates, Inc.
. Fac. 1217 - Boundary and Improvement Survey dated May 2, 1998 by
American Surveying Company, Inc.
. Fac. 637 - Special Purpose Survey dated May 14, 1996 by Coffin &
XxXxxx Assoc., Inc.
. Fac. 1220 - Boundary and Improvements Survey dated April 9, 1998 by
American Surveying Company, Inc.
. Fac. 1218 - Survey dated May 7, 1998 by Caribbean Land Surveyors, Inc.
. Fac. 246 - Boundary Survey dated December 14, 1994 by Xxxxxxxx
Surveying Inc.
. Fac. 1232 - Survey dated April 28, 1998 by Caribbean Land Surveyors,
Inc.
. Fac. 837 - As-built Survey dated February 13, 1991 by Xxx County
Engineering Inc.
. Fac. 836 - Building Addition Overall Site Plan dated February 28, 1992
by Landmark Engineering & Surveying Corporation
. Fac. 117 - Boundary and Building Location Survey dated September 9,
1977 by Xxxxx Engineering Associates, Inc.
. Fac. 268 - Survey dated April 14, 1993 by Alligator Surveying, Inc.
. Fac. 610 - Boundary and Improvement Survey dated April 6, 1990 by
Xxxxx and Xxxxxxx, P.A.
. Fac. 115 - Survey dated August 4, 1997 by F.R.S. & Associates, Inc.
c) Environmental
. Fac. 1217 - Phase I Environmental conducted December 9, 1994 by Cierra
Inc.
. Fac. 637 - Level I Environmental Site Assessment conducted December
11, 1992 by Environmental Resources Management-South, Inc.
. Fac. 837 - Level I Environmental Property Audit conducted February 7,
1991 by ERM-Northwest, Inc.
1
. Fac. 836 - Asbestos Survey Report dated September 6, 1996 by Law
Engineering and Environmental Services, Specifications for Asbestos
Abatement dated December 5, 1996 by Xxxxxx Associates, Inc.
. Fac. 181 - Phase I Environmental Assessment dated April 27, 1993 by
Environmental Enterprise Group, Inc.
. Fac. 268 - Phase I Environmental Site Assessment dated February 22,
1995 by Ardaman & Associates, Inc.
d) Underground Storage Tanks
. Fac. 117 - Tank Removal Closure Assessment dated June 1998 by Xxxxx
Environmental and Energy Services Co., Inc.
. Fac. 181 - Tank Removal Closure Assessment dated July 1998 by Xxxxx
Environmental and Energy Services Co., Inc.
. Fac. 245 - Site Rehabilitation Completion Order dated July 27, 1999 -
Xxxxx Environmental and Energy Services Co., Inc. in conjunction with
FL Dept. of Environmental Protection
. Fac. 372 - Tank Removal Closure Assessment dated July 1998 by Xxxxx
Environmental and Energy Services Co., Inc.
1. e) Miscellaneous Documents
. Fac. 115 - Special Warranty Deed dated December 23, 1997 and mesne
Deeds (last source deed Vencor Operating, Inc. -> Vencor Nursing
Centers East, L.L.C.) dated April 30, 1998 and recorded September 28,
1999 as Document No. 99-391116, O. R. Book 11370, Pg. 1184
. Fac. 246 - Lease Agreement by and between First Healthcare Corporation
as Lessee and Fairhaven South, Inc. as Lessor dated July 1, 1996 and
mesne Assignments and Assumption of Leases (First Healthcare
Corporation -> Vencor Healthcare, Inc.; Vencor Healthcare, Inc. ->
Vencor Operating, Inc.; Vencor Operating, Inc. -> Vencor Nursing
Centers East, L.L.C.) dated April 30, 1998
. Fac. 610 - Mesne Deeds (last source deed Vencor Operating, Inc. ->
Vencor Nursing Centers East, L.L.C.) dated April 30, 1998 and recorded
May 12, 1998 as Document No. 98-175242, O.R. Book 10396, Pg. 880
. Fac. 637 - Reciprocal Easement Agreement by and between Nationwide
Care, Inc. and Evergreen Xxxxx, Ltd. dated August 16, 1996 and
recorded August 28, 1996 in Hernando County, Florida, File No.
96-031971, Book 1083, Pg. 1551
. Fac. 1217 - Ninety-Nine Year Lease by and between Alpha Medical Land
Corp. as Landlord and Bradenton Care Center, Limited as Tenant dated
June 1, 1982, Amendment dated October 18, 1982 and Assignment and
Assumption of Lease (PersonaCare of Bradenton, Inc. -> Ventas Realty,
Limited Partnership) dated August 23, 1999
Additional Documentation Provided - For all FL facilities unless specifically
noted
. Agency for Health Care Administration ("AHCA")/Surveys for the Florida
facilities -
Surveys (Doc. No. 2567), Plans of Correction and various correspondence for
2002
Surveys (Doc. No. 2567), Plans of Correction and various correspondence for
2001
Surveys (Doc. No. 2567), Plans of Correction and various correspondence for
2000
. Survey Issues - Fac. 246 (documentation re: AHCA Survey conducted July
11-12, 2002 resulting in State Class I Citation); Fac. 372
(documentation re: AHCA Complaint Survey conducted June 18, 2002
resulting in State Class I Citation), Fac. 1218 (documentation re:
AHCA Complaint Investigation conducted April 1, 2002 about an attempt
to close facility's vent. unit), Fac. 1233 (documentation re: AHCA
Complaint Investigation conducted October 8, 2002 resulting in State
Class I Citation);
. Inventory of Personal Effects (upon patient admission - time period
not specific)
. Florida Depository Bank Account Reconciliation (May 2002 - October
2002 and December 2002 - March 2003) - Bank of America Acct. No.
3751033080
. Medicare Credit Balance Report Certification for Calendar Quarter
Ended 9/30/02
2
. Kindred AR Aging Trends (AR198) for subject Florida facilities -
November 2002
. Kindred Accounts Receivable Summary (AR195) for subject Florida
facilities - November 2002, April 2003
. Kindred General Ledger Balancing (reconciliation of detail AR to
General Ledger Accounts for Florida facilities) - November 2002
. Kindred Aged 360 Accounts Receivable Analysis (AR360) - June 2002,
November 2002, May 2003, June 2003
. Kindred Balance Sheet by facility - Year End Final Close 2001,
Calendar 2001 vs. November 2002, As of April 2003
. Current Kindred Manage Care Rates - central Florida summary
. Master Lease Agreement #4 dated as of April 20, 2001
. Medicare Cost Reports -
Annual reporting period ended 6/30/01 - Fac. 115, 117, 181, 124, 125, 245,
246, 268, 372, 610, 637, 836, 837, 1217, 1218, 1220, 1232, 1233
Annual reporting period ended 6/30/02 - Fac. 115, 117, 181, 124, 125, 245,
246, 268, 372, 610, 637, 836, 837, 1217, 1218, 1220, 1232, 1233
. Medicaid Cost Reports -
Annual reporting period ended 5/31/01 - Fac. 115, 117, 124, 125, 245, 246,
268, 610, 836, 837
Annual reporting period ended 5/31/02 - Fac. 115, 117, 124, 125, 245, 246,
268, 610, 836, 837
Annual reporting period ended 7/31/01 - Fac. 181, 372, 637, 1217, 1218,
1220, 1232, 1233
Annual reporting period ended 7/31/02 - Fac. 181, 372, 637, 1217, 1218,
1220, 1232, 1233
. Kindred 2001 Benefits - Open Enrollment Guide for Full-time Health
Services Employees along with Health Insurance Claims Analysis by
facility for Florida facilities (August 2000 - September 2002)
. Vencor Human Resources Reference Guide (1998)
. Vencor Human Resources Policy and Procedure Manual (Nursing Center) -
not dated
. Vencor Employee Handbook (CC/HR97-015) - not dated
. STARS Report - 5 yr. Worker's Compensation Claims Loss History (as of
9/30/02) for Florida facilities
. Kindred Average Daily Census Trend by facility - 1999, 2000, 2001,
2002
. Medicaid Reimbursement Per Diem Rates - Effective 7/1/02 and Effective
1/1/03
. Kindred Nursing Center Operations G/L Labor Report (March 2003), May
2002 and May 2003
. EEOC Matters -
Synopsis of Charges of Discrimination: Fac. 1233 - Xxxxxx Xxxxxxxx (filed
12/12/02 - open), Xxxxxxxxx Xxxx (filed 11/29/01 - open), Xxxxxxx Xxxxxxxx
(filed 9/25/02 - open); Fac. 245 - Xxxxx Xxxxx (filed 2/10/03 - open),
Xxxxx Xxxxx (2) (filed 3/31/03 - open); Fac. 610 - Xxxxxxx Xxxxxxx (filed
5/6/03 - open); Fac. 836 - Xxxxxxx Xxxxxx (filed 10/15/01 - open), Xxx X.
Xxxxxxx (filed 4/11/02 - open); Fac. 125 - Xxxxxx X. Xxxxx (filed 2/17/03 -
open)
Litigation: Fac. 837 - Xxxxx Xxxxxxx, Plaintiff (filed 12/6/02 - open);
Fac. 1217 - Xxxxxxxx Xxxxxxx, Plaintiff (filed 5/30/02 - open)
. Union Information - Xxx Xxxxxx'x 1/8/03 memo and collective bargaining
agreements with SEIU 1199 Florida for Fac. 115 (12/1/02-11/30/05) and
125 (7/1/02-11/30/05), Tampa (#836) Rehab Wage Proposal with SEIU
Local 1199 FL dated 5/30/03 and Titusville (#125) Wage & Scale
Increase Proposal with SEIU Local 1199 FL dated 5/20/03
. Bonds - Continuous until cancelled
3
Safeco Patient Trust Fund Bond - Fac. 115 ($65k), 117 ($110k), 124 ($75k),
125 ($100k), 181 ($50k), 245 ($90k), 246 ($25k), 268 ($50k), 372 ($60k),
610 ($100k), 637 ($25k), 836 ($75k), 837 ($50k), 1217 ($85k), 1218 ($100k),
1220 ($60k plus $5k for assisted living), 1232 ($40k), 1233 ($80k)
Agency for Health Care Administration Leased Nursing Home Surety Bond -
Fac. 117 ($791,497), 124 ($652,190), 125 ($808,966), 181 ($411,988), 245
($828,623), 246 ($585,490), 268 ($782,682), 372 ($774,578), 637 ($365,072),
836 ($951,652), 837 ($665,079), 1217 ($1,232,424), 1218 ($1,038,976), 1220
($620,408), 1232 ($784,848), 1233 ($597,499)
Safeco Utility Payment Bond - Fac. 117 (Peoples Gas System, Inc. - $1k),
124 (Florida Power & Light Company - $7,690), 181 (Withlacoochee River
Electric Cooperative, Inc. - $15k), 268 (Florida Power & Light Company -
$11,500), 372 (Tampa Electric Company - $15k), 836 (Tampa Electric Company
- $17,450),
Safeco Surety Bond - Fac. 124 (Florida Public Utilities Company - $2,700),
1233 (Florida Power Corporation - $8,645)
. Insurance Policies -
Storage Tank Pollution Liability - Aon (5/28/02 - 5/28/03)
Crime & Fiduciary - Aon (1/1/02- 1/1/03)
Director & Officers - Aon (4/20/02 - 4/20/03)
Professional/General Liability - Aon (1/1/02 - l/1/03)
Insurance Schedules (2002, 2003, Property, UST, Auto, Approved Drivers) and
Workers Comp Loss Run (5 yr. As of 11/30/02 and 12/31/02)
Property Insurance Program Policy Manual - Xxxxx (12/1/01 - 12/1/02)
All Risk Property Binder Addendum from Xxxxx Group (Effective 12/1/02 -
12/1/03)
Auto Liability - Aon (1/1/02 - 1/1/03)
Workers' Compensation - Aon (1/1/02 - 1/1/03, 2 binders)
. Flood Certificates - Fac. 115 (eff. 1/9/03 - 1/9/04), 181 (eff.
1/17/03- 1/17/04), 837 (eff. 12/17/02 - 12/17/03), 1233 (eff. 12/17/02
- 12/17/03)
. Florida Pending Claims List - Florida Nursing Centers Only as of
12/31/02
. Florida Licensure and Certification Documents - binder (current
licenses, Medicaid Agreements, Medicare 1561's, original Medicare
letters, tie-in notices, DMEPOS letters)
. Corporate Integrity Agreement between Office of Inspector General of
Dept. of Health and Human Services and Vencor, Inc. signed 7/24/00
. Patient Trust Fund Trial Balance by Facility - December 2002
. CIGNA Dental Preferred Provider Insurance - Low Incentive Plan and
High Incentive Plan effective 1/1/03 for all Kindred full-time
employees
. Welcome to Your 2003 Employee Benefits - Communication and Enrollment
for all Kindred full-time employees
. Your Insured Benefit Plan - Health Services Division Nonunion
Facilities (issued to Kindred Healthcare, Inc. by Metropolitan Life
Ins. Co. - not dated)
. Kindred Facility Historical Tax Data/Tax Year 2002 (Personal and Real
Property Tax) - Fac. 1217, 1218, 1220, 1232, 1233
. Kindred Operational Analysis (GL4000) (Income Statement in Operational
Format): December 1999 Year End Final Close, December 2000 Year End
Final Close, As of November 2001, As of December 2001, As of November
2002, December 2002 Year End Final Close, As of January 2003, As of
February 2003, As of March 2003, As of April 2003
. Nursing Center Payroll Analysis & Trend Report by Facility for Payroll
Process Dates of 5/9/03 and 6/6/03 for Fac. 115, 117, 124, 125, 181,
245, 246, 268, 372, 610, 637, 836, 837, for Payroll Process Dates of
5/16/03 and 6/13/03 for Fac. 1217, 1218, 1220, 1232, 1233
. Tax Assessment Statements by local authority -
. 2002 Real Property - Fac. 115, 117, 124, 125, 181, 245, 246, 268, 372,
610, 637, 836, 837
. 2002 Personal Property - Fac. 115, 117, 124, 125, 181, 245, 246, 268,
372, 610, 637, 836, 837
. Cash/Receipt Record Recap (December 2002 - March 2003)
. Kindred Florida Facilities Market Planning Map (10/02) and facility
information
4
. Kindred General Ledger Account Detail - January 2003 (housekeeping and
laundry depts. wages accounts)
. Kindred Asbestos Operations and Maintenance Program
. Florida General Ledger Balances - Xxxxx Cash and Patient Fund for each
facility for Jan-May 2003
. Current Vendor Lists for each facility
5
