EXHIBIT 10.17
LONG TERM CARE FACILITY
MANAGEMENT AGREEMENT
[Hilltop, Michigan]
THIS LONG TERM CARE FACILITY MANAGEMENT AGREEMENT (the "Agreement") made as
of the 1st day of December, 1999, by and between HILLTOP MANOR INVESTORS LLC, a
Georgia limited liability company ("Owner"), and CENTENNIAL HEALTHCARE
MANAGEMENT CORPORATION, a Georgia corporation ("Manager").
W I T N E S S E T H:
WHEREAS, Owner has agreed to acquire certain real and personal property
comprising a certain 118 bed nursing center located in Roscommon, Michigan (the
"Facility"); and
WHEREAS, Owner and Manager desire for Manager to provide its experience,
skill and supervision to manage the Facility on behalf of Owner after Owner
acquires the Facility under and subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual promises and
covenants of the parties contained herein and for such other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
MANAGEMENT DUTIES AND OBLIGATIONS
1.01 Control Retained by Owner. Owner shall at all times exercise overall
control over the assets and operations of the Facility, subject to the terms of
this Agreement, and Manager shall perform the duties herein required to be
performed by it as the agent of Owner and in accordance with the policies and
directives from time to time adopted by Owner.
1.02 Changes in Method of Operation. Manager shall not make substantial
changes in the method of operating the Facility unless Manager first notifies
Owner and Owner has given its approval, which approval shall not be unreasonably
withheld.
1.03 Management of Facility. During the term of this Agreement and subject
to the terms of this Agreement, Manager shall on behalf of Owner manage all
aspects of the operation of the Facility, including, but not limited to
staffing, accounting, billing, collections, setting of rates and charges and
general administration. In connection therewith, Manager (either directly or
through supervision of employees of the Facility) shall:
(a) Hire or lease on behalf of Owner and retain (to the extent such
personnel are reasonably available in the community in which the Facility is
located) an adequate staff of nurses, technicians, nurse aides, office and other
employees, including a qualified administrator (the "Administrator") and shall
promote, direct, assign and discharge all such employees on behalf of Owner at
Manager's reasonable discretion; provided, however, that leased employees shall
be subject to the direction and control of the lessor of such leased employees.
All employees shall be employees of or leased by the Owner and carried on the
payroll of the Facility and shall not be deemed employees or agents of Manager.
(b) Institute and amend, from time to time general salary scales,
personnel policies and appropriate employee benefits for all employees on behalf
of Owner; provided, however, that leased employees shall be subject to the
general salary scales, personnel policies and employee benefit programs of the
lessor of such leased employees. Employee benefits may include pension and
profit sharing plans, insurance benefits, incentive plans for key employees and
holiday, vacation, personal leave and sick leave policies.
(c) Issue appropriate bills for services and materials furnished by
the Facility and use its reasonable best efforts to diligently collect accounts
receivable and monies owed to the Facility, design and maintain accounting,
billing, patient and collection records; and prepare and file insurance,
Medicare, Medicaid and any and all other necessary or desirable reports and
claims related to revenue production. Owner hereby grants Manager the right to
enforce Owner's rights as creditor under any contract or in connection with
rendering any services for purposes of collecting accounts receivable and monies
owed the Facility.
(d) Order, supervise and conduct a program of regular maintenance and
repair.
(e) Purchase food, beverage, medical, cleaning and other supplies,
equipment, furniture and furnishings for the account of Owner.
(f) Administer, supervise and schedule all patient and other services
of the Facility, including the operation of food, xxxxxx/beautician and other
ancillary services.
(g) Provide for the orderly payment (to the extent funds are
available therefor) of accounts payable, employee payroll, amounts due on short
and long-term indebtedness, taxes, insurance premiums, and all other obligations
of the Facility.
(h) Institute standards and procedures for admitting patients, for
charging patients for services, and for collecting the charges from the patients
or third parties.
(i) Obtain and maintain insurance coverage for the Facility naming
Owner, Manager and such other persons requested by Owner as insured
as provided in Section 5.01 hereof.
(j) Negotiate and enter into, in the name of and on behalf of Owner,
such agreements, contracts and orders as Manager may deem necessary or
advisable, for the furnishing of services, concessions and supplies for the
operation and maintenance of the Facility, including, without limitation,
agreements for the provision of therapy and rehabilitation services, and medical
supplies.
(k) After notice to Owner, negotiate on behalf of Owner (and in
conjunction with Owner's counsel) with any labor union lawfully entitled to
represent employees of Owner who work at the Facility, but any collective
bargaining agreement or labor contract must be submitted to Owner for its
approval and execution.
(l) As provided in Section
1.07(a), assist in maintaining all licenses and permits required for the
operation of the Facility, its contracts with third party payors and other
similar governmental and nongovernmental agencies and intermediaries.
(m) Make periodic evaluations of the performances of all
departments of the Facility.
(n) Design, establish and maintain a suitable accounting system using
accounts and classifications consistent with those used in similar facilities.
(o) Advise and assist Owner in designing an adequate and appropriate
public relations program.
1.04 Reports to Owner.
(a) Manager shall prepare and deliver to Owner, within thirty (30)
days after the close of each calendar month, unaudited financial statements
covering the prior month and containing a balance sheet and statement of income
and expenses in reasonable detail. Manager shall also provide any required
assistance to the independent accountants for the Facility, who shall be
selected by Manager, in the preparation of audited annual financial statements
for the operation of the Facility. Such financial statements shall be prepared
at Owner's expense in accordance with generally accepted accounting principles
in the health care field consistently applied and delivered to Manager and Owner
within ninety (90) days after the end of each fiscal year of the Facility.
Manager shall prepare reports or provide information to Owner required by the
Lease and any loan documents of Lessor.
(b) Manager shall submit to Owner for its approval (which approval
will not be unreasonably withheld) each twelve (12) months its budget for the
operation of the Facility setting out anticipated income, expenses and capital
expenditures during the succeeding twelve (12) month period. Manager shall use
reasonable efforts to operate the Facility in accordance with the provisions of
the budget for the Facility as submitted to Owner. Such proposed budget for the
Facility shall be delivered to Owner prior to the commencement of the
operational fiscal year of the Facility.
(c) Manager shall schedule periodic management meetings to be
attended by representatives of both Manager and Owner no less frequently than
semiannually and shall furnish to Owner quarterly written progress reports
concerning the operation of the Facility.
1.05 Bank Accounts.
(a) All funds received under Federal and State reimbursement programs
from the operation of the Facility (the "Government Funds") shall be deposited
in a bank account or accounts of the Facility (the "Facility Depository
Accounts") established in Owner's name. All other funds received from the
operations of the Facility (the "Non-Government Funds" and together with
Government Funds, the "Facility Funds") shall be deposited in a bank account or
accounts of Manager or Manager's affiliate(s) (collectively referred to in this
Section 1.05 as Manager) established in Manager's name (the "Manager's Operating
Accounts"). Upon receipt in the Facility Depository Accounts, Owner shall
transfer or cause to be transferred all Facility Funds from the Facility
Depository Accounts to Manager's Operating Accounts. Manager shall segregate all
Facility Funds in an account(s) separate and apart from Manager's other
operating accounts (the "Segregated Facility Accounts"). Manager shall disburse
Facility Funds received from the Facility's operations in the manner and order
of priority described in subsection (b) below. Manager shall also deposit and
maintain personal funds of the Facility's residents into a separate trust
account established in Manager's name (the "Facility Trust Account"). Manager
shall designate the signatory or signatories required on all checks or other
documents of withdrawal for the Manager's Operating, Segregated Facility and
Facility Trust Accounts. Owner shall instruct all Federal and State payors to
send confirmation to Manager of all transfers of Government Funds. In addition,
Owner shall direct the Facility Depository Account bank to send all Facility
Depository Account statements directly to Manager on a monthly basis.
(b) Flow of Facility Funds. All revenues and cash of the Facility
shall be disbursed by Manager in the following order of priority and, in each
case, in such amounts and at such times as Manager deems is required to be made
in connection with the payment of:
(i) the Facility's debt service payments for obligations secured
or collateralized by the Facility, its property or receivables, including
payments due under that certain promissory note dated November 30, 1999 from
Owner to GMAC Commercial Mortgage Corporation ("Lender") in the original
principal amount of $4,250,000 (the "Loan"), and all other costs and payments
due under the Loan;
(ii) the costs and expenses of operating the Facility, including
the reimbursable expenses of Manager;
(iii) all accrued and unpaid Management Fees (defined in Section
5.01) to the Manager; and
THEN, after retention by Manager of an adequate working capital reserve (such
reserve to be determined by Manager in its reasonable discretion, taking into
account lines of credit, and approved by Owner in connection with its approval
of the operating budget for the Facility (with such approval to be not
unreasonably withheld or delayed) and held in such subaccount of the Facility
Depository, Operating or Segregated Facility Accounts as Manager shall
determine);
(iv) the balance, if any, to Owner.
1.06 Access to Books, Records and Documents. If it is ultimately determined
that Section 952 of the Omnibus Budget Reconciliation Act of 1980 and final
regulations promulgated thereunder apply to this Agreement:
(a) Until the expiration of four (4) years after the furnishing of
services pursuant to this Agreement, Manager shall, as provided in Section 952,
make available, upon written request, to the Secretary of Health and Human
Services, or upon request, to the Comptroller General of the United States, or
any of their duly authorized representatives, this Agreement, and all books,
documents and records of Manager that are necessary to verify the nature of this
Agreement for which payment may be made under the Medicare program; and
(b) If Manager carries out any of the duties of this Agreement
pursuant to a subcontract or subcontracts with an aggregate value or cost of
$10,000 or more over a twelve (12) month period with a related organization,
such subcontract or subcontracts shall contain a clause to the effect that,
until the expiration of four (4) years after the furnishing of such services
pursuant to such subcontract or subcontracts, the related organization shall, as
provided in Section 952, make available, upon written request, to the Secretary
of Health and Human Services, or upon request, to the Comptroller General of the
Untied States, or any of their duly authorized representatives, the subcontract
or subcontracts, and all books, documents and records of such subcontractors for
which payment may be made under the Medicare program.
1.07 Licenses.
(a) Manager, as agent for Owner and on Owner's behalf, shall apply
for and seek to obtain and maintain all necessary licenses, permits,
certifications, consents, and approvals from all governmental agencies which
have jurisdiction over the operation of the Facility. Manager agrees that its
management and operation of the Facility shall materially and substantially
comply with any representations made by the Lessor and/or Owner in the
Certificate of Need application for the Facility with the State of Michigan
licensing authority, to the extent disclosed in writing to Manager, as well as
all conditions placed upon such Certificate of Need and so disclosed in writing
to Manager. Manager, by applying for such licenses, permits, consents, and
approvals, does not in any way guarantee the approval of such applications and
shall have no liability with respect to any failure of the Facility to receive
any such license, permit, consent or approval.
(b) Neither Owner nor Manager shall knowingly take any action or fail
to take any action which may (1) cause any governmental authority having
jurisdiction over the operation of the Facility to institute any proceeding for
the rescission or revocation of any necessary license, permit, consent or
approval, or (2) adversely affect Owner's right to accept and obtain payments
under Medicare, Medicaid, or any other public or private third party medical
payment program.
(c) Manager shall, with the written approval of Owner, have the right
to contest by appropriate legal proceedings, diligently conducted in good faith
in the name of Owner, the validity or application of any law, ordinance, rule,
ruling, regulation, order or requirement of any governmental agency having
jurisdiction over the operation of the Facility. Owner, after having given its
written approval, shall pay attorneys' fees incurred with regard to the contest.
Counsel for any such contest shall be selected by Manager, with Owner's approval
which shall not be unreasonably withheld. Manager shall have the right, upon
notice to Owner but without the written consent of the Owner, to process all
third-party claims for the services of the Facility, including, without
limitation, the full right to contest to the exhaustion of all applicable
administrative proceedings or procedures, adjustment and denials by governmental
agencies or their fiscal intermediaries as third-party payors.
1.08 Administrator. Manager shall employ or lease for the Facility an
Administrator to serve as the chief executive officer of such Facility. The
Administrator shall be an employee of and shall be compensated by Owner, in
accordance with the approved operating budget for the Facility or as otherwise
approved by Owner, and Manager shall pay on Owner's behalf out of the Operating
Accounts of the Facility, in advance, on or before the fifth day of each month,
all such compensation, including salary, fringe benefits, bonuses and business
expense reimbursements approved by Manager, to the Administrator. The term
"fringe benefits" shall include, without limitation, employer's FICA payments,
unemployment compensation and other employment taxes, bonuses, vacation,
personal and sick leave benefits, workers' compensation, group life, health and
accident insurance premiums and disability and other benefits.
1.09 Taxes. Any federal, state or local taxes, assessments or other
governmental charges properly imposed on the Facility are the obligations of the
Owner, not of Manager, but all such obligations shall be paid by Manager on
Owner's behalf out of the Operating Accounts of the Facility. With the Owner's
prior written consent, Manager may contest the validity or amount of any such
tax or imposition on the Facility in the same manner as described in Section
1.07(c) hereof.
1.10 Use of Manager's Personnel. An authorized representative of Manager
shall visit the Facility as often as Manager deems necessary. The time spent by
such authorized representative of Manager during such visits and all out-of-
pocket expenses arising from travel and lodging connected with such visitations
shall not be charged separately to Owner.
1.11 Government Regulations. Manager agrees to operate and maintain the
Facility in substantial compliance with the requirements of any material
statute, ordinance, law, rule, regulation or order of any governmental or
regulatory body having jurisdiction over the Facility and to comply with all
orders and requirements of the local board of fire underwriters or any other
body which may exercise similar functions; provided, however, that Manager shall
not be required to expend its separate funds in order to comply with any such
statutes, ordinances, laws, rules, regulations or orders, and to the extent any
funds are so required, it shall fulfill its obligations hereunder by notifying
Owner of the actions necessary in order to be in compliance therewith and
expending such funds of Owner as Owner may provide or as Manager may deem
available for such purpose.
1.12 Quality Controls. Manager shall activate and maintain on a continuing
basis a "Quality Assurance Program" in order to provide objective measurements
of the quality of health care provided at the Facility and, in connection
therewith, shall utilize such techniques as patient questionnaires and
interviews, physician questionnaires and interviews, and inspections.
1.13 Staff Specialists. In addition to the other managerial services
provided for herein, Manager shall make available to the Facility, for
consultation and advice, when Manager deems necessary or appropriate;
specialists in such fields as accounting, auditing, budgeting, dietary services,
operations, environmental control, management, maintenance, nursing, personnel,
pharmacy operations, public relations, purchasing, quality assurance, systems
and procedures, and third-party reimbursement.
1.14 Performance of Services by Manager. In the performance of its services
hereunder, Manager shall exercise the same standards and degree of care used by
reasonable and prudent managers of nursing homes of similar size, nature and
character as the Facility. Notwithstanding anything herein to the contrary,
Manager shall not be deemed in violation of this Agreement if Manager is
prevented from performing any of its obligations hereunder for reasons beyond
its reasonable control including, without limitation, strikes, walkouts or other
employee disturbances, acts of God, or the action or promulgation of any
statute, rule, regulation or order by any federal, state, or local governmental
or judicial agency or official, nor shall it be deemed in default hereunder or
otherwise liable for any error of judgment or act or omission in the performance
of its services hereunder, which is made in reasonable good faith.
1.15 Additional Services. Owner agrees that any specialized or additional
services recommended by Manager may be performed for a separate fee as agreed
upon by Owner in advance of the performance of such service. If Manager provides
such service, such fee shall not be in excess of such amount as would be charged
by a third party, negotiating at arm's length, for the performance of such
service.
1.16 Maintenance of Facility. Manager agrees to maintain the Facility in a
and serviceable condition, ordinary wear and tear and damage by fire or other
casualty or resulting from condemnation excepted, to the extent sufficient
revenues of the Facility are available for such purpose.
1.17 Civil Money Damages. Manager agrees that if any civil money penalties
are imposed by HCFA or the State of Michigan as a result of the nursing care
and/or treatment provided to residents of the Facility by employees of the
Facility, Manager will reimburse Owner for the amount of the civil money penalty
imposed; provided, however, that following termination of this Agreement Manager
must be notified immediately upon notice of the civil money penalty and/or any
Statement of Deficiencies issued by HCFA or the State of Michigan for a period
during which Manager served under this Agreement. Manager reserves the right to
appeal or waive appeal of any civil money penalty imposed by HCFA or the State
of Michigan. Manager further reserves the right to retain counsel to represent
the Facility in any appeal or settlement proceedings.
1.18 Compliance with Loan Documents. Owner shall provide Manager with true
and correct copies of the loan documents evidencing and securing the Loan (the
"Loan Documents"). Manager agrees to comply with the terms of the Loan Documents
in the operation of the Facility during the term of this Agreement. In the event
of a conflict between a provision of the Loan Documents and this Agreement, the
Loan Documents shall prevail
ARTICLE II
TERM AND TERMINATION
2.01 Term. The term of this Agreement (the "Term") shall commence on the
date Owner acquires the Facility (the "Effective Date"), and shall continue
until the fifth anniversary thereof; provided, however, that at the end of such
five-year period, the Term shall be automatically extended on a month-to-month
basis unless either party gives the other party notice not less than thirty days
prior to the end of the current Term of its intention to not renew the Term.
2.02 Optional Termination by Manager.
(a) Manager has the option to terminate this Agreement, without
damage or penalty, upon ten (10) business days prior written notice to Owner,
upon the occurrence of either of the following events:
(i) The Facility or any material portion thereof is damaged or
destroyed to the extent that in the written opinion of an independent architect
or engineer reasonably acceptable to both parties (x) it is not practicable or
desirable to rebuild, repair or restore the Facility within a period of nine (9)
months to its condition immediately preceding such damage, or (y) the conducting
of normal operations of the Facility would be prevented for a period of nine (9)
months or more; or
(ii) Title to or the temporary use of all or substantially all
the Facility is taken under the exercise of the power of eminent domain by any
governmental authority or person, firm or corporation acting under governmental
authority which in the opinion of an independent architect or engineer
reasonably acceptable to both parties prevents or is likely to prevent the
conducting of normal operations at the Facility for a period of at least nine
(9) months.
Provided, however, that in either of such events, in addition to the rights of
Manager under Article V hereof, Manager shall have the right to rebuild, restore
or otherwise rearrange the Facility and recommence operations thereof, and
thereupon Manager shall continue to manage the Facility under the same terms,
conditions, and fees as provided herein.
(b) Manager shall have the option to terminate this Agreement without
damage or penalty upon ten (10) days prior written notice to the Owner following
the sale, transfer, assignment, or other disposition, in whole or in part, by
the Owner of its interest in the Facility. In the event Owner is a corporation,
limited liability company, or partnership, any dissolution, merger,
consolidation or other transfer of a substantial portion of the stock or
underlying ownership interests (as the case may be) of Owner shall constitute an
assignment of the Facility for all purposes of this Section 2.02(b). The term
"substantial portion" means the ownership of stock or underlying ownership
interests (as the case may be) possessing, and of the right of exercise, at
least fifty percent (50%) of the total combined voting power of such
corporation, limited liability company, or partnership, provided, however, that
this prohibition on stock transfer shall not apply to a "publicly traded
corporation," which term is hereby defined for all purposes under this Agreement
as a corporation whose shares of stock have been registered pursuant to the
Securities Act of 1933, as amended.
On or before the Effective Date, Owner and Manager shall enter into a
purchase option agreement whereby Manager or its affiliates shall have the right
at any time after the second anniversary of the Effective Date but prior to the
fifth anniversary of the Effective Date to purchase the Facility in accordance
with the terms contained in such agreement. Owner hereby grants to Manager a
right of first refusal to purchase its interest in the Facility on the same
terms and conditions, including purchase price, acceptable to Owner pursuant to
the terms of a bona fide third party offer. Manager shall be furnished with
written notice of the terms of such third party offer and a period of not less
than fifteen (15) business days within which to exercise such right of first
refusal. Upon exercise, Owner and Manager shall close Manager's acquisition of
Owner's interest in the Facility within the greater of (i) thirty (30) days
thereafter or (ii) the time period, if any, specified in the terms of such third
party offer. The parties acknowledge and agree that any purported sale,
transfer, assignment or other disposition by Owner in violation of this Section
2.02(b) shall, at Manager's option, be null, void and of no force or effect, and
that equitable remedies, including the remedy of specific performance (to compel
rescission of any such sale, transfer, assignment or other disposition) and
injunctive relief (to prevent or restrain such prohibited actions) shall be
available to Manager, in addition to its rights and remedies at law and under
this Agreement.
In the event Manager elects not to exercise its right of first refusal
under this Section 2.02(b) and there shall occur a sale, transfer, assignment or
other disposition of Owner's interest in the Facility prior to the second
anniversary of this Agreement, this Agreement shall continue in full force and
effect and shall bind the purchaser (without releasing or otherwise affecting
Owner's primary liability for its obligations hereunder, which shall thereupon
be deemed joint and several with the liability of such purchaser); provided,
however, that in the event of such sale, transfer, assignment or other
disposition of Owner's interest pursuant to the foregoing. Owner shall have the
right and option to terminate this Agreement upon the thirtieth day following
payment and delivery to Manager of the following, said termination to become
effective upon the thirtieth day following Manager's receipt of the last of the
following:
(i) for a sale occurring prior to the second anniversary of this
Agreement, a termination fee equal to forty percent (40%) of the Facility's
"Average Monthly Fee" multiplied by the number of months remaining in the Term,
calculated from the date of such termination. "Average Monthly Fee" for the
Facility shall mean the average of the monthly Management Fees payable to
Manager under Article IV of this Agreement for each of the twelve (12) full
calendar months prior to such termination;
(ii) all amounts due under Article IV of this Agreement;
(iii)any other amounts due Manager under the provisions of this
Agreement or any other agreements between Owner and Manager or their affiliates;
and
(iv) evidence, satisfactory to Manager, that amounts have been
escrowed by Owner sufficient to pay all pending liabilities of Manager arising
during the term of this Agreement.
(c) Manager shall have the option to terminate this Agreement without
damage or penalty upon seven (7) days written notice to Owner following the
failure of Owner to transfer all Facility Funds in the Facility Depository
Account to Manager's Operating Accounts as provided in Section 1.05(a) of this
Agreement.
ARTICLE III
DEFAULT AND REMEDIES
3.01 Events of Default. The following shall constitute events of default
("Events of Default" and each individually an "Event of Default") under this
Agreement:
(a) If Owner fails to do any of the following and the responsibility
and means (including any and all necessary funds) to pay or perform same has not
been delegated to Manager hereunder: (i) make or cause to be made any payment to
Manager required to be made by Owner, and such failure shall continue for as
much as thirty (30) days after notice thereof shall have been given to Owner,
(ii) perform its obligations under this Agreement in any material respect, and
such default shall continue for a period of thirty (30) days after notice
thereof shall have been given by the Manager to Owner, or (iii) make payments,
or keep any covenants owing to any third party and which would cause Owner to
lose possession of the Facility's buildings, equipment or properties;
(b) If Manager fails (i) to make or cause to be made any payment to
or on behalf of Owner required to be made by Manager, and such failure shall
continue for as much as thirty (30) days; after notice thereof shall have been
given to Manager, (ii) to perform its obligations under this Agreement in any
material respect, and such failure shall continue for a period of thirty (30)
days; after notice thereof shall have been given by the Owner to Manager, or
(iii) to make payments, or keep any covenants owing to any third party and which
would cause Owner to lose possession of the Facility's buildings, equipment or
properties;
(c) If, through no fault of Manager, the licenses required for the
operation of Facility are at any time suspended, terminated, or revoked, and
such suspension, termination or revocation shall continue unstayed and in effect
for a period of fourteen (14) consecutive days;
(d) If, due to Manager's failure to maintain the Facility in material
compliance with applicable laws, regulations or rules, the Facility (i) loses
its Medicaid or Medicare certification, (ii) loses its license to operate as a
nursing home, or (iii) is closed, and such event continues unstayed and in
effect for a period of fourteen (14) consecutive days;
(e) If, due to Manager's failure to maintain the Facility in material
compliance with applicable laws, regulations or rules, patient admissions are
suspended, and such event continues unstayed and in effect for the later of
ninety (90) days or the date on which occupancy decreases more than ten percent
(10%) from the occupancy level at the date of such suspension;
(f) If either Owner or Manager shall (i) be adjudicated bankrupt;
(ii) admit in writing its inability to pay its debts generally as they become
due; (iii) become insolvent in that its total assets are in the aggregate less
than all of its liabilities or it is unable to pay its debts generally as they
become due; (iv) make a general assignment for the benefit of creditors; (v)
file a petition, or admit (by answer, default or otherwise) the material
allegations of any petition filed against it, in bankruptcy under the federal
bankruptcy laws (as in effect on the date of this Agreement or as they may be
amended from time to time), or under any other law for the relief of debtors, or
for the discharge, arrangement or compromise of its debts; or (vi) consent to
the appointment of a receiver, conservator, trustee or liquidator of all or part
of its assets; or
(g) If a petition shall have been filed against Owner or Manager in
proceedings under the federal bankruptcy laws (as in effect on the date of this
Agreement, or as they may be amended from time to time), or under any other laws
for the relief of debtors, or for the discharge, arrangement or compromise of
its debts, or an order entered by any court of competent jurisdiction appointing
a receiver, conservator, trustee or liquidator of all or part of Owner's or
Manager's assets, and such petition or order is not dismissed or stayed within
sixty (60) consecutive days after entry thereof.
3.02 Remedies Upon Default. If any Event of Default by either party shall
occur and be continuing, the other party may, in addition to any other remedy
available to it in law or equity on account of such Event of Default, forthwith
terminate this Agreement by giving written notice of such termination, and
neither party shall have any further obligations whatever under this Agreement;
provided, however, that as a condition to the effectiveness of Owner's
termination of this Agreement, Owner shall pay to Manager all payments due under
Article V.
ARTICLE IV
MANAGEMENT FEE
4.01 Management Fee. Commencing upon the Effective Date until the end of
the term hereof, Owner shall pay to Manager a monthly management fee equal to
six percent (6%) of the Facility's "Gross Revenues," as determined on an accrual
basis (the "Management Fees"). "Gross Revenues" shall mean, for the Facility,
total revenues of such Facility, including, without limitation, all ancillary
fees, charges, rentals and other revenue derived in any way from the operation
of such Facility, on an accrual basis, after deduction of allowances for
contractual adjustments as they relate to third-party payors and before
deduction of any and all expenses.
4.02 Adjustment. Within fifteen (15) days after the delivery of the annual
financial statements of the Facility, Owner shall pay to Manager or Manager
shall credit Owner such amount as is necessary to make the amount of the
Management Fees paid with respect to the year to which the financial statements
relate equal to the amount of Management Fees shown to be due by the annual
financial statements; provided, however, that amounts exceeding two (2) months'
Management Fees shall be paid to Owner in addition to such credit for such two
(2) month period.
ARTICLE V
INSURANCE
5.01 Insurance/Indemnity. During the term of this Agreement, Manager shall
at all times keep the Facility insured with the kinds and amounts of insurance
described below, which, at a minimum, shall be modified as necessary to satisfy
all requirements of any Facility mortgagee. This insurance shall be written by
companies authorized to do insurance business in the State of Michigan. The
policies will name Owner as additional insured, and name any mortgagee of the
Facility by way of standard form of mortgagee loss payee endorsement. Losses
shall be payable to Owner, in trust, as provided in Section 5.05 below. Any loss
adjustment shall require the written consent of Owner, Manager and each
mortgagee. Evidence of insurance shall be deposited with Owner and, if
requested, with any mortgagee(s). The policies on the Facility shall insure
against the following risks:
(a) Loss or damage by fire and such other risks as may be included in
the broadest form of extended coverage insurance from time to time available,
including but not limited to loss or damage from leakage of any sprinkler system
now or hereafter installed in the Facility, in amounts sufficient to prevent
Owner or Manager from becoming a co-insurer within the terms of the applicable
policies and in any event in an amount not less than the full replacement value
of the Facility (as defined below in Section 5.02);
(b) Loss or damage by explosion of steam boilers, pressure vessels or
similar apparatus, now or hereafter installed in the Facility, in such limits
with respect to any one accident as may be reasonably agreed by Owner and
Manager from time to time;
(c) Claims for personal injury or property damage under a policy of
general public liability insurance with amounts not less than One Million
dollars ($1,000,000.00) per occurrence in respect of bodily injury, One Million
dollars ($1,000,000.00) aggregate per occurrence, and Three Hundred Thousand
dollars ($300,000.00) for property damage;
(d) Claims arising out of malpractice in an amount not less than One
Million dollars ($1,000,000.00) per person and per occurrence;
(e) Such other hazards and in such amounts as may be customary for
comparable properties in the area and is available from insurance companies
authorized to do business in the State of Michigan.
(f) Loss of rental under a rental value insurance policy covering a
risk of loss during the first six (6) months of reconstruction resulting from
the occurrence of any of the hazards described in subsections (a) and (b) of
this Section 5.01 in an amount sufficient to prevent Owner from becoming a co-
insurer; and
(g) Worker's compensation.
5.02 Replacement Cost. The term "full replacement value" of improvements
as used herein, shall mean the actual replacement cost thereof from time to
time.
5.03 Additional Insurance. In addition to the insurance described above,
Manager shall maintain such additional insurance as may be reasonably required
from time to time by any mortgagee of the Facility.
5.04 Waiver of Subrogation. Any provision in this Agreement to the
contrary notwithstanding, each party, to the extent it is permitted to do so by
the terms and provisions of any of the above policies, hereby waives any and all
rights it may have against the other, its agents, or employees, for any loss or
damage from risks ordinarily insured against under such policies, but only to
the extent that such loss or damage is in fact covered by such insurance and is
collectible by the insured party. Each party further covenants and agrees that
it will, upon request of the other, request each such insurance company to
attach to such policy or policies issued by it a waiver of subrogation with
respect to the other party, its agents or employees.
5.05 Insurance Proceeds. All proceeds payable by reason of any casualty
loss or damage to all or any part of the Facility and insured under any policy
of insurance required by Section 5.01 of this Agreement shall be paid to Owner
and held by Owner in trust (subject to the provisions of Section 5.06 and the
rights of the holders of mortgages relating to the Facility) and shall be made
available for reconstruction or repair, as the case may be, of any damage to or
destruction of the Facility, and shall be paid by Owner from time to time for
the reasonable costs of such work. Any excess proceeds of insurance remaining
after the completion of the restoration or reconstruction of the Facility shall
be returned, as applicable, to the insurer or Manager as their interests may
appear. All salvage resulting from any such loss covered by insurance shall
belong to Owner.
5.06 Damage or Destruction. If, during the Term of this Agreement, the
Facility is totally or partially destroyed from a risk covered by the insurance
described in Section 5.01, Owner shall, as soon as practicable, and, if
permitted under the Lease, restore the Facility to substantially the same
condition as existed immediately before the destruction. Upon the commencement
of such work, Owner shall proceed with due diligence to complete such work
within a reasonable period of time. If the costs of the restoration exceed the
amount of proceeds received by Owner from the insurance required under Section
5.01, Manager shall have the right but not the obligation to pay the difference
between the amount of insurance proceeds and such cost of restoration.
5.07 Restoration of Manager's Property. If Owner is required to restore
the Facility as provided in Section 5.06, Owner shall not be required to restore
alterations made by Manager, or Manager's improvements, trade fixtures or
personal property, such excluded items being the sole responsibility of Manager
to restore. Owner shall, however, be required to restore the Facility's tangible
personal property owned by Owner.
5.08 Manager's Blanket Policy. Notwithstanding anything to the contrary
contained in this Article V, Manager's obligation to maintain insurance required
herein may be fulfilled by obtaining a blanket policy, carried and maintained by
Manager; provided, however, that the coverage afforded Owner will not be reduced
or diminished or otherwise differ from that which would exist under a separate
policy meeting all other requirements of this Agreement.
ARTICLE VI
COVENANTS OF OWNER
6.01 Licensing; Changes and Services. Subject to the terms of this
Agreement, Owner agrees to take or cause to be taken any and all actions
necessary to be taken by it as the overall supervisor of the assets and
operations of the Facility in order to maintain all required licenses, permits
for the operation of the Facility and the Facility's eligibility to participate
in all public or private third-party medical payment programs, including
providing sufficient funds to bring the Facility in compliance with all
applicable fire safety codes and other laws, regulations and orders, and to
correct all structural, maintenance, procedural and staffing deficiencies as
shown on the surveys and reports of governmental agencies; having jurisdiction
over the Facility. Owner agrees that it will not, through the exercise of its
overall supervisory powers, substantially change the services rendered by the
Facility during the term hereof without the prior written approval of Manager.
6.02 Transfer of Facility. Owner further acknowledges and agrees that upon
the transfer, lease, assignment, sale or other disposition or conveyance of all
or any part of its interest in and to the Facility, this Agreement shall remain
in full force and effect unless otherwise terminated as provided in Section
2.02(b). Subject to the foregoing and to the requirements of the Lease, Owner
covenants and agrees that in the event that it sells, assigns or otherwise
transfers its interest in and to the Facility at any time while this Agreement
is in effect, it will require the transferee to assume the obligations of the
Owner hereunder. The provisions of this Section 6.02 are in addition to, and do
not modify or abridge, the prohibitions against sale, transfer, assignment or
other disposition of the Facility, as set forth in Section 2.02(b) and elsewhere
in this Agreement.
6.03 Damage or Destruction. If the Facility or any portion thereof shall
be damaged or destroyed by fire or other casualty, Owner shall commence to
repair, restore, rebuild or replace any damage or destruction within sixty (60)
days after such fire or other casualty and shall proceed with due diligence to
complete such work within a reasonable period of time.
6.04 Compliance with Loan Documents. Owner covenants and agrees to comply
at all times with the terms and provisions of the Loan Documents.
ARTICLE VII
MISCELLANEOUS COVENANTS
7.01 Binding Agreement. The terms, covenants, conditions, provisions and
agreements herein contained shall be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
7.02 Relationship of Parties. Nothing contained in this Agreement shall
constitute or be construed to be or to create a partnership, joint venture or
lease between Owner and Manager with respect to the Facility.
7.03 Notices. All notices, demands and requests contemplated hereunder by
either party to the other shall be in writing, and shall be delivered by hand,
transmitted by cable, telegram or telecopy (receipt confirmed), or mailed,
postage prepaid, registered, or certified mail return receipt requested:
(a) to Owner, by addressing the same to:
c/o Five Star Healthcare Investors LLC
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Attn: Xxxx X. Xxxx
Telecopier: (000) 000-0000
(b) to Manager, by addressing the same to:
Centennial HealthCare Management Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Centennial HealthCare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Senior Vice President and General
Counsel
Telecopier: (000) 000-0000
or to such other address or to such other person as may be designated by notice
given from time to time during the term of this Agreement by one party to the
other. Any notice hereunder shall be deemed given five (5) days after mailing,
if given by mailing in the manner provided above, or on the date delivered if
given by hand, cable, telegraph or telecopy (receipt confirmed).
7.04 Entire Agreement; Amendments. The Agreement contains the entire
agreement between the parties hereto, and no prior oral or written, and no
contemporaneous oral representations or agreements between the parties with
respect to the subject matter of this Agreement shall be of any force and
effect. Any additions, amendments or modifications to this Agreement shall be of
no force and effect unless in writing and signed by both Owner and Manager.
7.05 Governing Law. This Agreement and all the terms and provisions hereof
and the rights and obligations of the parties hereto shall be governed by, and
construed and enforced in accordance with, the laws of the State of Georgia
without regard to its rules of conflicts of laws.
7.06 Captions and Headings. The captions and headings throughout this
Agreement are for convenience only and do not constitute a part hereof.
7.07 Disclaimer of Employment of Facility Employees. No person employed in
the operation of the Facility will be an employee of Manager, and Manager will
have no liability for payment of their wages, fringe benefits, payroll taxes and
other expenses of employment.
7.08 Costs and Expenses; Indemnity. All fees, costs and expenses arising
out of, relating to or incurred in the operation of the Facility, including,
without limitation, the fees, costs, and expenses of Manager and outside
consultants and professionals, shall be the sole responsibility of Owner and
shall be payable as operating expenses of the Facility. Except as otherwise
provided herein, Manager, by reason of the execution of this Agreement or the
performance of its services hereunder, shall not be liable for or deemed to have
assumed any liability for such fees, costs and expenses, or any other liability
or debt of Owner whatsoever, arising out of or relating to the Facility or
incurred at its operation, except the salary of Manager's employees and the
expenses and costs incurred at its central administrative offices in performance
of its obligations hereunder. Owner agrees to indemnify and hold Manager and its
officers, directors, agents and employees harmless from and against all losses,
claims, damages or other liabilities, including the costs and expenses incurred
in connection therewith, arising out of or relating to the ownership of the
Facility (except those resulting from the wilful misconduct or gross negligence
of Manager), including, without limitation, any liability asserted against
Manager or any of its officers, directors, employees or agents by reason of any
action taken by any of the foregoing while performing the duties of Manager
hereunder on behalf of Owner. Notwithstanding anything contained herein to the
contrary, Manager agrees that to the extent a deficiency remains under the Loan
following foreclosure (or conveyance in lieu thereof) and liquidation of the
Security (as defined in the Loan Documents), Manager shall indemnify Owner to
the extent of the actual loss, if any, incurred by Owner as a direct and
proximate result of the following, but only to the extent such loss was caused
by the acts or omissions of Manager and not the acts or omissions of J. Xxxxxxx
Xxxxx, Xxxx X. Xxxx, Owner or Owner's members: (1) fraud or intentional
misrepresentation by Manager or Centennial HealthCare Corporation in connection
with the execution and delivery of the Loan Documents; (2) misapplication or
misappropriation of accounts receivable collected in advance, or received after
the occurrence of an event of default under the Loan Documents and the lapse of
any applicable cure period under the Loan Documents; (3) the misapplication or
misappropriation of insurance proceeds or condemnation awards; (4) failure to
pay taxes and insurance premiums, or charges for labor or materials or other
charges that can create liens encumbering the Facility; (5) failure to maintain,
repair and restore the Facility in accordance with the Loan Documents; (6)
failure to return or to reimburse Owner for any and all tangible personal
property (excluding proprietary employee and policy manuals, computer hardware
and software and items related thereto, to the extent owned by Manager) taken
from the Facility by or on behalf of Owner and not replaced with personal
property of the same utility and of the same or greater value; (7) any act of
actual waste or arson or criminal acts by Manager with respect to the Facility;
(8) failure to comply with covenants contained in the Loan Documents relating to
the environmental conditions of the Facility; (9) failure to maintain, free of
all security interests and other encumbrances, all legal and beneficial
interests in any health care regulatory approvals necessary for the operation of
the Facility; or (10) any liability incurred as a result of any Federal Medicare
investigations related to the Facility.
7.09 Responsibility for Misconduct of Employees and Other Persons. Except
as otherwise provided in Section 7.08 of this Agreement, Manager will have no
liability whatsoever for damages suffered on account of the dishonesty,
misconduct or negligence of any employee of or employee leased by the Facility
or any officer, director, partner, stockholder, employee or agent of Owner.
Manager shall be liable to Owner in connection with damage or loss directly
sustained by Owner by reason of the dishonesty, wilful misconduct and gross
negligence of Manager's employees in the operation of the Facility during the
term of the Agreement.
7.10 Definition of Affiliate. For purposes of this Agreement, the term
"affiliate" shall mean any person or entity which Manager or Owner or their
respective stockholders or individual partners, directly or indirectly, through
one or more intermediaries, controls, is in common control with, or is
controlled by.
7.11 Authorization of Agreement. Manager and Owner represent and warrant,
each to the other, that the execution and delivery of this Agreement has been
duly authorized by all respective action, will not presently or with the passage
of time, the giving of notice, or both result in a default under or violate or
conflict with (i) the provisions of the articles of incorporation and bylaws of
Manager or Owner, or (ii) any other material agreement, mortgage, loan agreement
or other contract or instrument by which either party is bound or to which any
of its property or assets are subject, or (iii) any existing law, regulation,
court order or consent decree by which either party is bound or to which any of
its property or assets are subject.
7.12 Severability. If any one or more of the provisions of this Agreement
are held invalid or unenforceable, the validity and enforceability of all other
provisions of this Agreement shall remain in full force and effect, unless
enforcing the remainder of the provisions would not satisfy the original
intentions of the parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement through their duly authorized representatives, as of the day and year
first above written.
OWNER:
HILLTOP MANOR INVESTORS, LLC
By: Five Star Healthcare Properties, LLC
By: Southeast Capital, LLC
By: /s/ Xxxx X. Xxxx
-----------------------------
Xxxx X. Xxxx, Managing Member
MANAGER:
CENTENNIAL HEALTHCARE MANAGEMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Vice President
CENTENNIAL HEALTHCARE MANAGEMENT CORPORATION ("CHMC") has entered into
management agreements substantially identical to Exhibit 10.1 as follows:
1. Long Term Care Facility Management Agreement dated December 1, 1999,
by and between Xxxxxx Investors, LLC and CHMC, regarding the
management of Xxxxxx Nursing Center.
2. Long Term Care Facility Management Agreement dated December 1, 1999,
by and between Dolphins View Investors, LLC and CHMC, regarding the
management of The Health and Rehabilitation Centre at Dolphins View.
3. Long Term Care Facility Management Agreement dated December 1, 1999,
by and between Cypress Investors, LLC and CHMC, regarding the
management of Cypress Manor Health and Rehabilitation Center.
4. Long Term Care Facility Management Agreement dated December 1, 1999,
by and between Kannapolis Investors, LLC and CHMC, regarding the
management of THS of Kannapolis.
