MANAGEMENT AGREEMENT
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This MANAGEMENT AGREEMENT (this "Agreement"), dated as of August 24,
1999, is made and entered into by and between AH Battery Park Owner, LLC, an
Ohio limited liability company ("Owner"), and Brookdale Living Communities of
New York-BPC, Inc., a Delaware corporation ("Manager").
RECITALS
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WHEREAS, Owner is the ground lessee of certain real property located at
000 Xxxxx Xxx Xxxxxx, Xxxxxxx Xxxx Xxxx, Xxx Xxxx (the "Facility") pursuant to
that certain Ground Lease dated as of August 24, 1999 (the "Ground Lease") by
and between Owner, as lessee, and the Battery Park City Authority, as Lessor
(the "Lessor");
WHEREAS, Manager is qualified in the business of operating senior
independent and assisted living facilities such as the Facility, and Owner
desires to engage Manager to manage and operate the Facility; and
WHEREAS, Manager is willing to manage and operate the Facility on the
terms and subject to the conditions set forth in this Agreement.
AGREEMENTS
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NOW, THEREFORE, in consideration of the recitals and the mutual
promises and covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Responsibilities of Manager.
a. Owner hereby engages Manager to manage and operate the Facility,
and Manager hereby accepts such engagement and, subject to the
conditions set forth in this Agreement, agrees to manage and
operate the Facility, at Owner's expense, in accordance with the
terms set forth in this Agreement. During the term of this
Agreement, Manager shall have full authority to operate and
manage the Facility as a senior congregate and non-licensed
assisted living facility in accordance with the terms and
conditions hereof, and shall have full and complete control and
reign over, and use of, the entire Facility, including its
common areas. Without limiting the generality of the foregoing,
Manager shall, at Owner's expense, have full authority as
follows:
i. Operational Policies and Forms. Subject to the
applicable Annual Budget (as defined in Section
1(a)(xii) below), Manager shall establish and implement
such operational policies and procedures, and develop
such new policies and procedures, as Manager may deem
necessary to cause or to ensure the establishment and
maintenance of operational standards determined by
Manager to be appropriate for the nature of the
Facility.
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ii. Charges. Manager shall establish the schedules of
charges for residents of the Facility, including
appropriate charges for any and all special services
rendered to or for residents at the Facility.
iii. Information. Manager shall develop any informational
material, mass media releases, and other related
publicity materials, that Manager deems necessary or
appropriate for the operation of the Facility.
iv. Regulatory Compliance. Manager shall use reasonable
efforts to maintain all licenses, permits,
qualifications and approvals from any applicable
governmental or regulatory authority required for the
operation of the Facility. In addition, Manager shall
supervise and coordinate the preparation and filing of
(and, where required to do so under applicable law or
regulations, file) all reports or other information
required by all state or other governmental agencies
having jurisdiction over the Facility and shall deliver
copies of all such reports and information to Owner
simultaneously with such filings. Manager shall
cooperate with governmental inspection and enforcement
activities.
v. Equipment and Improvements. Subject to the applicable
Annual Budget and the Mortgage Loan Documents (as
hereinafter defined), Manager shall, on behalf of
Owner, acquire, or effect the acquisition of, equipment
and improvements which Manager determines are needed to
maintain or upgrade the quality of the Facility or its
services, to replace obsolete or run-down equipment, or
to correct any other deficiencies which may be
identified by Manager during the term of this
Agreement, and shall make, or engage third parties to
make, all such repairs, replacements and maintenance
and shall cause to be acquired all equipment, including
replacement equipment, that Manager determines to be
necessary for the operation of the Facility.
vi. Accounting. Manager shall supervise and coordinate
accounting support to, and prepare and maintain records
for, the Facility. All accounting procedures and
systems utilized in providing such support shall be in
accordance with the operating capital and cash programs
developed by Manager, which programs shall conform to
generally accepted accounting principles. Nothing
herein shall preclude Manager from engaging a third
party (including related or affiliated parties) to
assist Manager in the performance of the accounting
duties provided for herein.
vii. Reports. Manager shall supervise and coordinate the
preparation of any operational information if and to
the extent needed to comply with any reporting
obligations imposed on the Owner by any Lender (as
hereinafter defined) or lessors of the Facility except
for those reporting obligations which relate to matters
which are within the exclusive control of the Owner or
its affiliates. Manager shall prepare, or cause to be
prepared, at Owner's expense, the tax returns of Owner
(but not Owner's partners or affiliates) for Owner's
signature. Notwithstanding any provisions in this
Agreement to the contrary, Manager shall timely provide
to Owner (or to Owner's member(s) or partner(s) if
Owner is not subject to entity level taxes) the cash
necessary to pay any federal, state or local income or
other taxes that may be due and owing as a result of
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income generated from operations of the Facility during
the Term (as hereinafter defined) of this Agreement.
All originals of the books, forms, and records
generated by Manager in connection with the operation
of the Facility shall be Manager's property.
viii. Bank Accounts. Manager shall establish an account or
accounts and shall deposit therein all money received
by Manager on Owner's behalf from the operation of the
Facility. Withdrawals and payments from this account
shall be made only on checks signed by one or more
person or persons designated by Manager.
ix. Personnel. Manager shall have full power and authority
to recruit, hire, train, promote, direct, discipline
and fire all Facility personnel, including the
Executive Director of the Facility; establish salary
levels, personnel policies and employee benefits; and
establish employee performance standards, all as
Manager determines to be necessary or desirable during
the term of this Agreement to ensure the efficient and
satisfactory operation of all departments within, and
all services offered by, the Facility. All of the
foregoing obligations shall be undertaken in accordance
with the Annual Budgets and applicable law and
regulations. All of the Facility personnel shall be the
employees of Manager or its affiliates, unless
otherwise agreed by Owner and Manager, and all salary,
bonuses, fringe benefits, payroll taxes and related
expenses payable to or in respect of the Facility's
on-site personnel holding the position of Executive
Director of the Facility and all positions subordinate
thereto shall be expenses of the Facility.
x. Supplies and Equipment. Manager shall purchase, on
behalf of Owner, supplies and non-capital equipment
needed to operate the Facility within the budgetary
limits set forth in the Annual Budgets.
xi. Legal Proceedings. Manager shall have the right and
authority, on its own behalf or through legal counsel
designated by Manager, to direct all legal matters and
proceedings that are within the scope of Manager's
authority pursuant to this Agreement, including,
without limitation, instituting any legal actions or
proceedings determined by Manager to be necessary to
collect obligations owing to the Facility, to cancel or
to terminate any contract or agreement relating to the
Facility for breach thereof or default thereunder, and
to otherwise enforce the obligations of the residents,
sponsors, licensees, customers and any other users of
the Facility. Without limiting the generality of the
foregoing, Manager is authorized (without the prior
written consent of Owner) to (a) settle, in the name
and on behalf of Owner and on such terms and conditions
as Manager may deem to be in the best interests of the
Facility, any and all claims or demands arising out of,
or in connection with, the operation of the Facility,
whether or not legal action has been instituted and (b)
enter into such agreements with any governmental
agencies having jurisdiction over the Facility deemed
necessary or desirable by Manager in its sole and
absolute judgment. All such amounts paid in respect of
any such settlements shall be expenses of the Facility
and be paid by Owner. Manager will give notice promptly
to Owner of all demands and claims and all settlements
and legal actions, but the failure to give such notice
shall not affect the preceding provisions of this
paragraph.
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xii. Annual Budgets.
A. Preparation and Submission. At least forty-five
(45) days prior to each calendar year that
commences during the Term of this Agreement,
Manager shall submit to Owner a proposed annual
budget for the Facility projecting the revenues
available and funds required during such fiscal
year in order to manage and operate the
Facility and to make capital improvements that
Manager determines to be necessary or desirable
in order to keep the Facility's physical plant
in good condition and repair. The proposed
annual budget shall be based upon data and
information then available to Manager and shall
include, without limitation, estimated salaries
and fringe benefits for all personnel,
projected staffing patterns for the Facility,
estimates of required capital expenditures and
purchases of equipment, supplies, inventory,
food and similar items, and an estimate of the
level of rates and charges to residents of the
Facility sufficient to generate revenue
necessary to manage and operate the Facility
and make the capital improvements projected in
such budget. The proposed annual budget shall
be an estimate of revenues and costs, and Owner
and Manager acknowledge that (1) projected
revenue may not be actually received and (2)
projected costs may be exceeded by actual
expenses and capital expenditures incurred in
connection with the operation and maintenance
of the Facility. By submitting such a projected
budget, Manager will not be deemed to be
providing a guaranty or warranty as to the
projected revenue, expenses or capital
expenditures of the Facility.
B. Adoption. Each annual budget proposed by
Manager pursuant to subparagraph (A) above and,
to the extent any Lender has approval rights
with respect thereto, as finally approved by
such Lender or Lenders, shall constitute an
"Annual Budget" for all purposes under this
Agreement.
C. Efforts to Operate within Annual Budget.
Manager agrees to use reasonable efforts to
operate the Facility in accordance with the
Annual Budgets. Subject to the foregoing
limitation, Owner shall be responsible on a
periodic basis, as and when needed, for all
expenses and capital expenditures incurred in
connection with the operation and maintenance
of the Facility, including, without limitation,
Fees (defined below) and cost overruns which
exceed the amounts set forth in the then
current Annual Budget. Notwithstanding anything
in this Agreement, if Manager determines in
good faith that the incurrence of any
expenditure is required in order to comply with
applicable law or regulations or to provide
services in accordance with the senior
independent and assisted living industry's
then-prevailing standards in
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the area in which the Facility is located or is
otherwise desirable or appropriate for the
operation of the Facility, then Manager shall
be entitled to make such expenditures, and all
such expenditures shall be deemed, for all
purposes of this Agreement, to be in accordance
with the then current Annual Budget.
xiii. Collection of Accounts. Manager shall issue bills and
collect accounts and monies owed for goods and services
furnished by the Facility, including, but not limited
to, enforcing the rights of Owner and the Facility as
creditor under any contract or residency agreement or
in connection with the rendering of any services. All
of which, including, but not limited to rents and other
monies payable under residency agreements, shall be the
property of owner to be held and used in accordance
with the applicable provisions of this Agreement.
xiv. Contracts. Consistent with or as otherwise contemplated
by the Annual Budget, Manager shall negotiate, enter
into, secure, cancel and/or terminate such agreements
and contracts which Manager may deem necessary or
advisable for the operation of the Facility, including,
without limitation, the furnishing of concessions,
supplies, utilities, extermination, refuse removal and
other services. Where lawful, such agreements and
contracts may be entered into in the name of and on
behalf of Owner.
xv. Residency Agreements. Manager shall have the right and
authority to negotiate, enter into, amend, cancel
and/or terminate residency agreements with residents of
the Facility, as agent for Owner. All residency
agreements, leases and other occupancy agreements
entered into by Manager shall state that Manager is
acting as agent on behalf of Owner. Where lawful, such
residency agreements may be entered into in the name of
and on behalf of Owner.
xvi. Other Matters. Manager shall, on its own behalf and/or
on Owner's behalf, be permitted to enter into such
other agreements, contracts, easements and other
documents or commitments and to perform such other acts
as are necessary or desirable, in Manager's sole and
absolute discretion, for the operation of the Facility.
xvii. Loan Documents. Manager shall, on its own behalf and/or
on Owner's behalf, be permitted to deal with the
providers of financing for the Facility, including
without limitation, (A) the senior mortgage loans (the
"Mortgage Loan") made by Key Corporate Capital Inc.,
Fleet National Bank and European American Bank
(collectively, "Senior Lender") secured by Owner's
interest in the Facility and (B) any other equity or
mezzanine loans made to Owner or its member either as
of the date hereof or after the date of this
Agreement(the "Equity Loan") made by a lender
acceptable to Owner and Manager ("Equity Lender").
Senior Lender and Equity Lender shall be referred to
individually as a "Lender," and the loan documents
evidencing and/or securing the Mortgage Loan and the
Equity Loan are referred to collectively herein as the
"Loan Documents." The Loan Documents which evidence
and/or secure the Mortgage Loan are referred to
collectively herein as the "Mortgage Loan Documents."
Manager shall be responsible for complying with the
terms of the
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Loan Documents, at Owner's sole cost and expense, with
the exception of those provisions (i) which are within
the exclusive control of Owner and its affiliates, e.g.
filing of income tax returns and certificates and
notices relating to Owner's (and its affiliates')
organizational documents, etc., and (ii) which relate
to the repayment of the debt evidenced and secured by
the Loan Documents except to the extent that Manager is
administering the Mortgage Loan and the Equity Loan
pursuant hereto or pursuant to that certain Amended and
Restated Development Agreement of even date herewith by
and between Owner and Manager, as developer (the
"Development Agreement"). Owner (and its affiliates)
shall not amend or waive any provision of any of the
Loan Documents without the prior written consent of
Manager.
xviii. Ground Lease. Manager shall have the right and
authority, at the Owner's expense, to enter into,
perform, and modify its obligations and duties under
the Ground Lease. Owner shall not amend or waive any
provision of any of the Loan Documents without the
prior written consent of Manager, which may be withheld
in Manager's sole discretion.
2. Responsibilities of Owner. Owner shall not interfere with Manager in
connection with the management or operation of the Facility in
accordance with the terms of this Agreement. Owner acknowledges that
the management or operation of the Facility is within the exclusive
control of Manager and Owner hereby grants Manager sole and exclusive
possession and control over the Facility.
3. Exclusive Representative/Attorney-in-Fact. It is understood and agreed
that, during the term of this Agreement, Manager shall be the exclusive
representative of Owner for the purposes described in this Agreement.
Any communications with any Lender, regulatory authorities,
governmental agencies, contractors, suppliers, residents, sponsors,
licensees, customers, and guests of the Facility shall be directed
through Manager. Any and all notices received by Owner relating to the
Facility, the Ground Lease, the Loan Documents, the Owner, or the
direct or indirect owners of interests in Owner shall immediately be
forwarded by Owner to Manager. During the term of this Agreement, Owner
hereby appoints Manager as its attorney-in-fact throughout the term of
this Agreement to take any action and execute any instruments that
Owner is obligated under, or that Owner has covenanted and agreed
hereunder or under the Loan Documents or the Ground Lease to take or
execute or which Manager otherwise determines to be necessary or
appropriate for Manager to perform its duties or satisfy its
obligations hereunder or otherwise necessary or appropriate for the
management and operation of the Facility, which appointment as
attorney-in-fact is irrevocable and coupled with an interest.
4. Insurance. Subject to and in accordance with the Mortgage Loan
Documents and the Ground Lease, Manager shall arrange for and maintain
all necessary and proper hazard insurance covering the Facility,
including the furniture, fixtures and equipment situated thereon, all
necessary and proper public liability insurance for the protection of
Manager, Owner and, to the extent required under the Loan Documents and
the Ground Lease, any Lender and Ground Lessor, respectively. Manager
shall also arrange for and maintain all employee health and worker's
compensation insurance for the Facility's personnel. Manager shall, at
Owner's expense, also maintain such other insurance as required
pursuant to the Mortgage Loan Documents and the Ground Lease. Any
insurance provided pursuant to this paragraph shall be an expense of
the Facility payable by Owner.
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5. Proprietary Interest. The systems, methods, procedures and controls
employed by Manager and any written materials or brochures developed by
Manager to document the same are to remain the property of Manager and
are not, at any time during or after the term of this Agreement, to be
utilized, distributed, copied or otherwise employed or acquired by
Owner, except as authorized by Manager.
6. Term of Agreement. Unless this Agreement is sooner terminated as
hereinafter expressly provided in Section 7 or as otherwise agreed in
writing by both parties, the initial term (the "Term") of this
Agreement shall commence on the date hereof and shall end on the
"Maturity Date", as such term is defined in the Mortgage Loan Documents
and as the same may be extended pursuant to the Mortgage Loan Documents
(the "Termination Date"). Upon any termination of this Agreement
pursuant to the immediately preceding sentence, the parties hereto
shall have no further obligations or liabilities other than the right
of Manager to receive Fees through the Termination Date, and during any
such period for which Manager provides services or assists in the
management and operation of the Facility in connection therewith it
shall be entitled to receive an appropriate fee therefor. In addition,
upon any termination of this Agreement, all right, title and interest
of the Manager in and to any licenses, permits, qualifications,
approvals, leases, residency agreements, trade contracts and/or other
agreements that are necessary for the operation of the Facility shall,
at the option of Owner (to the extent assignable), be assigned to
Owner, except in connection with a synthetic lease transaction, in
which case such items shall be assigned to the lessee thereunder.
7. Events of Default and Remedies.
a. Event of Default. At the option of the non-defaulting party,
each of the following shall constitute an "Event of Default"
hereunder:
i. if Owner shall fail to pay or allow payment of any
installment of the Fees due to Manager in accordance
with Section 10 hereof or any other amounts due to
Manager under this Agreement for a period of five (5)
days after written notice of such failure from Manager
to Owner;
ii. if Owner fails to perform in any material respect any
term, provision, or covenant of this Agreement (other
than as set forth in Section 7(a)(i)) and (A) such
failure continues for ten (10) days after written
notice from Manager to Owner specifying such failure
(unless such failure cannot be cured by the payment of
money and cannot reasonably be cured within such 10-day
period, in which event, Owner shall have an additional
period, not to exceed an additional thirty (30) days,
in which to cure the default) or (B) Owner fails to
endeavor diligently and continuously to cure such
default as promptly as is practicable;
iii. if Manager fails to perform in any material respect any
term, provision, or covenant of this Agreement and (A)
subject to Section 8 below, such failure continues for
thirty (30) days after written notice from Owner
specifying such failure to perform (unless such failure
cannot reasonably be cured within such 30-day period,
in which event, Manager shall have an additional period
as is necessary to cure the default) or (B)
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Manager fails to endeavor diligently and continuously
to cure such default as promptly as is practicable; or
iv. if either Owner, on the one hand, or Manager, on the
other, is dissolved or liquidated, applies for or
consents to the appointment of a receiver, trustee or
liquidator of all or a substantial part of its assets,
files a voluntary petition in bankruptcy or is the
subject of an involuntary bankruptcy filing, makes a
general assignment for the benefit of creditors, or
files a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any
insolvency law, or if an order, judgment or decree
shall be entered by any court of competent
jurisdiction, on the application of a creditor,
adjudicating Owner or Manager bankrupt or insolvent or
approving a petition seeking reorganization of Owner or
Manager or appointing a receiver, trustee or liquidator
for such party of all or a substantial part of its
assets, and such order, judgment or decree shall
continue unstayed and in effect for any period of sixty
(60) consecutive days; or
v. if Owner or any affiliate of Owner is in breach or
default of any of its obligations under that certain
Equity Option Agreement of even date herewith with
Manager or under that certain Property Option Agreement
of even date herewith with Manager.
b. Remedies. At any time after the occurrence and during the
continuance of any Event of Default caused by Owner, Manager
may, at its option, do one or more of the following: (i)
terminate this Agreement by giving written notice to Owner
and/or (ii) exercise all rights and remedies available at law or
in equity. At any time after the occurrence and during the
continuance of an Event of Default caused by Manager, Owner may,
as its sole option, terminate this Agreement in accordance with
the terms hereof and Manager shall have no other liability to
Owner hereunder.
8. Facility Operations.
a. No Guarantee of Profitability. Manager does not guarantee that
operation of the Facility will be profitable.
b. Force Majeure. The parties will not be deemed to be in violation
or breach of their respective non-monetary obligations under
this Agreement if they are prevented from performing any of
their respective obligations hereunder for any reason beyond
their control, including, without limitation, strikes,
shortages, war, acts of God, or any applicable statute,
regulation or rule of federal, state or local government or
agency thereof having jurisdiction over the Facility or the
operations thereof.
9. Withdrawal of Funds by Manager. Owner and Manager acknowledge and agree
that the efficient operation of the Facilityrequires that Manager have
ready access to the funds required therefor, including without
limitation, the proceeds of the Mortgage Loan and Equity Loan
(collectively, the "Loan Proceeds") plus any capital contributions from
Owner's members and their members (the "Capital Contribution").
Accordingly, Owner agrees not to withdraw any funds from the Facility's
bank account(s) (except as may be required to make the payments
required under the Loan Documents) without the prior written consent of
Manager, which may be withheld in Manager's sole
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and absolute discretion. Moreover, during the term of this Agreement,
Owner (a) irrevocably grants Manager the authority on Owner's behalf to
make draw requests for the Loan Proceeds in accordance with the
Mortgage Loan Documents, (b) irrevocably authorizes each Lender to
disburse its Loan Proceeds directly to Manager in accordance with such
draw requests and the Loan Documents, (including those provisions
relating to compliance with the Lien Law of the State of New York) (c)
shall not be entitled to any portion of the Loan Proceeds under the
Loan Documents, and (d) irrevocably grants Manager the authority to
establish and maintain bank account(s) on Owner's behalf to deposit and
withdraw (without Owner's consent or approval) the Loan Proceeds
subject to compliance with the Loan Documents and the Lien Law of the
State of New York and all funds necessary for the development,
construction, operation, maintenance and use of the Facility. Subject
to Manager's obligations in Section 1(a)(vii) of this Agreement,
Manager shall have the right (without Owner's prior consent) to use any
excess proceeds or revenues generated from the Facility's operations to
reduce the principal balance of either the Mortgage Loan or the Equity
Loan.
10. Fees. Upon substantial completion of the Facility, Manager shall be
entitled to receive management fees (the "Fees") equal to the greater
of (a) five percent (5%) of the gross revenues of the Facility during
each month or portion thereof occurring during such term or (b) $10,000
per month. Fees shall be paid on a monthly basis simultaneously with
the delivery by Manager to Owner of the monthly statements provided for
in Section 1(a)(vii). In addition to the Fees, Owner agrees to
reimburse Manager and Brookdale Living Communities, Inc. ("Brookdale")
for any and all costs and/or expenses paid, or incurred, by Manager or
Brookdale in connection with the Ground Lease any of the Loan
Documents, including, without limitation, rent, interest, principal,
commitment fees, due diligence deposits, draw fees, servicing fees,
structuring fees and extension fees or any other fees or expenses under
any of the Loan Documents or the Ground Lease. Manager acknowledges
that its right to receive any Fees or other sums due and owing
hereunder shall be subject and unconditionally subordinate to (i) the
payment by Owner to Ground Lessor of all Rental (as defined in the
Ground Lease) and (ii) the payment by Owner or its sole member to any
Lender of any sums due under any Loan Documents.
11. Assignment. This Agreement shall not be assigned (including by
operation of law, whether by merger or consolidation (excluding a
merger effected solely for the purpose of changing Owner's jurisdiction
of incorporation that does not affect the ownership interests of Owner
in any material respect) or otherwise) by Owner, on the one hand, or by
Manager, on the other, without the prior written consent of the other
party; provided, however, that Owner may assign this Agreement to the
Senior Lender pursuant to the Collateral Assignment of Collateral
Assignment of Contracts, Permits, Licenses and Approval and that to the
extent permitted by applicable law and regulations, and subject to the
receipt of all required licenses, permits, approvals and authorizations
of applicable governmental agencies, this Agreement may be assigned by
Manager to one or more corporations or other legal entities which
control, or are controlled by or are under common control with,
directly or indirectly, Manager or Brookdale.
12. Notices. Any notices required or permitted to be sent hereunder shall
be delivered personally or by facsimile (with answer back acknowledged)
or mailed, certified mail, return receipt requested, or delivered by
overnight courier service to the following addresses, or such other
addresses as shall be given by notice delivered hereunder, and shall be
deemed to have been given upon delivery, if delivered personally, upon
receipt with answer back acknowledged, if delivered by facsimile three
(3)
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business days after mailing, if mailed, or one business day after
delivery to the courier, if delivery by overnight courier service:
If to Owner, to:
AH Battery Park Owner, LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
With a copy to:
Squire, Sanders, & Xxxxxxx, LLP
0000 Xxxxxxxxxx Xxxxxx, 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxx, Jr.
Facsimile: 000-000-0000
If to Manager, to:
Brookdale Living Communities of New York-BPC, Inc.
c/o Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
With a copy to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
13. Relationship of the Parties. The relationship of Manager to Owner in
connection with this Agreement shall be that of an independent
contractor, and all acts performed by Manager during the term hereof
shall be deemed to be performed in Manager's capacity as an independent
contractor. Nothing contained in this Agreement is intended to or shall
be construed to give rise to or create a partnership or joint venture
or lease between Owner, its successors and assigns, on the one hand,
and Manager, its successors and assigns, on the other hand.
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14. Entire Agreement. This Agreement and any documents executed in
connection herewith contain the entire agreement among the parties with
respect to the subject matter hereof and, subject to the restrictions
contained in Section 11 above, shall be binding upon their respective
successors and assigns, and shall be construed in accordance with the
laws of the state where the Facility is located. This Agreement may not
be modified or amended except by written instrument signed by the
parties hereto.
15. Contract Modifications for Certain Legal Events. In the event any state
or federal laws or regulations, whether now existing or enacted or
promulgated after the effective date of this Agreement, are interpreted
by judicial decision, a regulatory agency or legal counsel of both
parties in such a manner as to indicate that the structure of this
Agreement may be in violation of such laws or regulations, Owner and
Manager agree to cooperate in restructuring their relationship and this
Agreement to eliminate such violation or to reduce the risk thereof to
the extent such restructuring can be accomplished upon commercially
reasonable terms; provided, that any such restructuring shall, to the
maximum extent possible, preserve the underlying economic and financial
arrangements between Owner and Manager. The parties agree that such
amendment may require either or both parties to obtain appropriate
regulatory licenses and approvals.
16. Captions. The captions used herein are for convenience of reference
only and shall not be construed in any manner to limit or modify any of
the terms hereof.
17. Severability. In the event one or more of the provisions contained in
this Agreement is deemed to be invalid, illegal or unenforceable in any
respect under applicable law, the validity, legality and enforceability
of the remaining provisions hereof shall not in any way be impaired
thereby.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and each such
counterpart shall together constitute but one and the same Agreement.
19. Limitation of Personal Liability of Owner. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall any
officer, director, member, partner, manager, shareholder, incorporator
or agent of Owner or of Owner's affiliates be personally liable to
Manager for any of Owner's obligations under this Agreement.
20. Limitation of Personal Liability of Manager. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall any
officer, director, member, partner, manager, shareholder, incorporator
or agent of Manager or of Manager's affiliates be personally liable to
Owner for any of Manager's obligations under this Agreement.
21. Confidentiality. Owner acknowledges that Manager may suffer irreparable
harm if the information provided to Owner pursuant to this Agreement or
this Agreement was disclosed to any third parties. Accordingly, Owner
shall keep this Agreement and all such information confidential and
shall not disclose any of such information not already known to the
public to any party except Owner's lenders, attorneys, accountants and
other professional advisors in connection with the transactions
contemplated by this Agreement or as otherwise required by law or court
order. Owner shall endeavor to minimize the number of persons who have
copies of this Agreement and shall inform each of such persons of the
confidential nature thereof. The provisions of this Section 21 shall
not prohibit any
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affiliate of Owner from participating in other similar transactions
with parties other than Brookdale, Manager or their affiliates.
22. Requirements of Ground Lease. Initially capitalized terms not defined
below shall have the same meanings ascribed to them in the Ground
Lease.
a. Manager shall not discriminate against employees or applicants
for employment because of race, creed, color, religion, national
origin, ancestry, sex, age, disability or marital status, shall
comply with all applicable Federal, State and local laws,
ordinances, rules and regulations from time to time in effect
and the provisions of the Master Lease prohibiting such
discrimination or pertaining to equal employment opportunities
and shall undertake programs of affirmative action to ensure
that employees and applicants for employment are afforded equal
employment opportunities without discrimination. Such action
shall be taken with reference to, but not limited to,
recruitment, employment, job assignment, promotion, upgrading,
demotion, transfer, layoff or termination, rates of pay or other
forms of compensation, and selection for training or retraining,
including apprenticeship and on-the-job training.
b. Manager shall request each employment agency, labor union and
authorized representative of workers with which it has a
collective bargaining or other agreement or understanding, to
furnish it with a written statement that such employment agency,
labor union or representative will not discriminate because of
race, creed, color, religion, national origin, ancestry, sex,
age, disability or marital status and that such agency, union or
representative will cooperate in the implementation of Manager's
obligations hereunder.
c. Manager shall state in all solicitations or advertisements for
employees placed by or on behalf of contractor that all
qualified applicants shall be afforded equal employment
opportunities without discrimination because of race, creed,
color, religion, national origin, ancestry, sex, age, disability
or marital status.
d. Manager shall comply with all of the provisions of the Civil
Rights Law of the State of New York and Sections 291-299 of the
Executive Law of the State of New York, shall upon reasonable
notice furnish all information and reports deemed reasonably
necessary by Landlord and shall permit access to its relevant
books, records and accounts for the purpose of monitoring
compliance with the Civil Rights Law and such sections of the
Executive Law.
23. Senior Lender's Right to Terminate. Notwithstanding anything to the
contrary contained herein, upon a default under any Mortgage Loan
Document and Senior Lender's acquisition and/or obtaining control of
the Project through foreclosure, sale or other means, this Agreement
shall terminate upon Senior Lender's written request at no cost to
Senior Lender.
24. Recording. Manager may not record this Agreement or a memorandum
thereof without Ground Lessor's consent at any time.
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12
IN WITNESS WHEREOF, the parties hereto have caused this Management
Agreement to be executed and delivered in their names and on their behalf as of
the date first set forth above.
OWNER:
AH Battery Park Owner, LLC
By: AH Battery Park Member, LLC, its sole member
By: Alliance Holdings, Inc., its sole
manager and member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
MANAGER:
Brookdale Living Communities of New York-BPC, Inc.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
STATE OF PENNSYLVANIA )
) SS.
COUNTY OF XXXXXXXXXX )
The foregoing instrument was acknowledged before me this 18th day of
August, 1999, by Xxxxx X. Xxxxxxx, the President of Alliance Holdings, Inc., as
member and manager of AH Battery Park Member, LLC, which is the sole member of
AH Battery Park Owner, LLC.
NOTARY SEAL
/s/ Xxxxxx Xxxxxxxx
------------------------------
NOTARY PUBLIC
Xxxxxxxxxx County, Pennsylvania
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this 16th day of
August, 1999, by Xxxx X. Xxxxxxx, the President of Brookdale Living Communities
of New York-BPC, Inc., on behalf of said corporation.
NOTARY SEAL
/s/ Xxxxx Xxxx Xxxxx
------------------------------
NOTARY PUBLIC
Xxxx County, Illinois
