OMNIBUS AGREEMENT
Exhibit 10.1
THIS OMNIBUS AGREEMENT (the “Agreement”) is made as of July 29, 2011 by and among CORNERSTONE
VENTURES, INC., a California corporation (“CVI”), CIP LEVERAGED FUND ADVISORS, LLC, a California
limited liability company (“CLFA”), CORNERSTONE LEVERAGED REALTY ADVISORS, LLC, a Delaware limited
liability company (the “Advisor”), SERVANT HEALTHCARE INVESTMENTS, LLC, a Florida limited
liability company (“SHI”), XXXXX XXXXXXX, individually (“Xxxxxxx” and, together with CVI, CLFA and
the Advisor, the “Cornerstone Parties”), and CORNERSTONE HEALTHCARE PLUS REIT, INC., a Maryland
corporation (“CHP” and, together with CVI, CLFA, the Advisor, SHI and Xxxxxxx, the “Parties”).
RECITALS
WHEREAS, the Advisor and CHP have entered into an Advisory Agreement, initially executed as of
September 12, 2007 (the “Advisory Agreement”);
WHEREAS, the Advisor, CLFA and SHI have entered into a Sub-Advisory Agreement, dated as of May
19, 2008 (the “Sub-Advisory Agreement”);
WHEREAS, CVI and SHI have entered into an Alliance Agreement, dated as of May 19, 2008 (the
“Alliance Agreement”);
WHEREAS, the charter of CHP (the “Charter”) provides that the Total Operating Expenses (as
defined in the Charter) of CHP for the four consecutive fiscal quarters, as determined at the end
of each fiscal quarter, shall not exceed the greater of 2% of Average Invested Assets (as defined
in the Charter) or 25% of Net Income (as defined in the Charter) (the “2%/25% Guidelines”) unless
the Independent Directors Committee of the Board of Directors of CHP (the “Committee”) determines,
based on unusual and non-recurring factors that it deems sufficient, that a higher level of
expenses is justified;
WHEREAS, the Committee has determined to focus its exploration of strategic alternatives for
CHP on the sale of CHP’s portfolio or a merger of CHP with another company, an undertaking that the
Committee has determined could be challenging without the assistance of both the Advisor and SHI;
and
WHEREAS, the Parties hereto have agreed to certain concessions and undertakings in connection
with the continued operation of CHP’s business.
NOW THEREFORE, in consideration of the premises, the mutual promises herein contained and
other good and valuable consideration, the adequacy and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Modification of Advisory Agreement. The Advisor shall continue to provide all
services that it is obligated to provide under the Advisory Agreement excluding only the services
described in the Sub-Advisory Agreement which the Parties hereby agree shall be performed by SHI
directly for the benefit of CHP (the “Advisor Services”). In addition, the Advisory Agreement is
hereby modified as provided in this Section 1 and in Section 23 of the Advisory Agreement and any
provisions in the Advisory Agreement which are inconsistent with this Section 1 shall be deemed
modified and amended hereby. All capitalized terms used in this Section 1 which have not been
defined previously shall have the meanings provided in the Advisory Agreement.
A. The Advisor will perform the Advisor Services in a manner that complies with the 2%/25%
Guidelines, taking into account the total amount of Operating Expenses incurred by both the Advisor
and SHI. In accordance therewith:
(i) All reasonable direct internal expenses of the Advisor shall be estimated and submitted on
a semi-monthly basis for the prior approval of the Committee and/or its financial advisor. No
Operating Expenses (other than those determined to be justified based on unusual and non-recurring
factors) shall be approved if, in the reasonable discretion of the Committee, the Committee
determines that such Operating Expenses, considered together with Operating Expenses previously
approved for the relevant period, as well as estimated Operating Expenses for the remainder of the
relevant period, would exceed the 2%/25% Guidelines.
(ii) Operating Expenses which the Advisor deems unusual and non-recurring, including any
non-recurring internal charges relating to finance and accounting services and investor services,
as well as extraordinary director fees, extraordinary or unusual legal fees, and the fees of the
Committee’s financial and legal advisors shall be submitted to the Committee, after review by its
financial advisor, for the Committee’s determination of whether such unusual and non-recurring
expenses are justified prior to any payment thereof.
(iii) The Asset Management Fee payable under the Advisory Agreement shall not be less than .35% nor greater than .5% of Average Invested Assets, subject to compliance with the 2%/25%
Guidelines. The Asset Management Fee payable to SHI pursuant to Section 4 of this Agreement shall
be included as an Operating Expense for the purpose of the 2%/25% Guidelines. In the event that
Operating Expenses exceed the 2%/25% Guidelines and the Asset Management Fee payable under the
Advisory Agreement and the Asset Management Fee payable under the Sub-Advisory Agreement
(collectively, the “Aggregate Asset Management Fee”) may not be paid in full, the Aggregate Asset
Management Fee paid shall be allocated between the Advisor and SHI on a pro rata basis based on an
Asset Management Fee of .35% of Average Invested Assets payable to the Advisor pursuant to the
Advisory Agreement as modified by this Agreement and an Asset Management Fee of .25% of Average
Invested Assets payable to SHI pursuant to Section 4 of this Agreement.
B. The Disposition Fee payable to the Advisor shall not exceed .25% of the sales price of the
Property or Properties; provided, however, that no Disposition Fee shall be
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paid to the Advisor unless the Advisor materially participates in the sale of the Properties and/or
CHP.
C. No fees, including any Subordinated Share of Cash Flows, Subordinated Incentive Listing Fee
or Subordinated Performance Fee Due Upon Termination, shall be due to the Advisor upon the sale of
the Properties or the termination of the Advisory Agreement, other than the Disposition Fee
described above.
D. In addition to and without limiting CHP’s right to terminate the Advisory Agreement under
Section 17 thereof, the Advisory Agreement may be terminated immediately by CHP in the event of (1)
the bankruptcy of the Advisor, CLFA or CVI or the commencement of any similar insolvency proceeding
by any such party, or (2) any material breach of the Advisory Agreement by the Advisor which (a) is
not cured within 30 days after written notice thereof or (b) in the reasonable determination of the
Committee, cannot be cured within 30 days.
E. The Advisor shall not be entitled under the terms of the Advisory Agreement to recommend
nominees for election to the Board of Directors of CHP.
2. Transfer of Cornerstone Interests. The Cornerstone Parties shall transfer to CHP,
for cancellation on its books and records, any and all shares of stock in CHP owned directly or
beneficially by any of them or by any subsidiary or affiliate of any of them, and shall transfer to
CHP, or its designated subsidiary or other affiliate, any and all interests in any corporation,
limited liability company, trust, partnership, joint venture or other entity which owns, directly
or indirectly, any assets that are used in the operation of CHP’s business. A list of such
interests is set forth on Schedule A attached hereto.
3. Termination of Alliance Agreement. The Alliance Agreement is hereby terminated in
its entirety by SHI and CVI and such parties shall have no further rights, benefits or obligations
thereunder whatsoever and release each other from any and all claims that may now or hereafter
exist with respect thereto; provided, however, that reference may continue to be made to the
terminated Alliance Agreement to the extent necessary or advisable in order to interpret certain
provisions of the Sub-Advisory Agreement.
4. Assignment and Modification of Sub-Advisory Agreement. All rights and benefits
belonging or accruing, as of the date hereof or hereafter, to any of the Cornerstone Parties under
the Sub-Advisory Agreement are, and the Sub-Advisory Agreement is, hereby assigned to CHP, or its
designated subsidiary or other affiliate, except to the extent modified hereby and CHP hereby
assumes the obligations of the Advisor thereunder from and after the date hereof. Any provisions
in the Sub-Advisory Agreement which are inconsistent with this Section 4 shall be deemed modified
and amended hereby. All capitalized terms used in this Section 4 which have not been defined
previously shall have the meanings provided in the Sub-Advisory Agreement.
A. All references in the Sub-Advisory Agreement to the Advisor shall now be deemed to refer to
CHP.
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B. The fees payable to SHI under the Sub-Advisory Agreement shall consist solely of the fees
set forth below, which fees shall be payable to SHI by CHP.
(i) The Asset Management Fee payable under the Sub-Advisory Agreement shall equal .25% of
Average Invested Assets, subject to compliance with the 2%/25% Guidelines. In the event that
Operating Expenses exceed the 2%/25% Guidelines and the Aggregate Asset Management Fee may not be
paid in full, the Aggregate Asset Management Fee paid shall be allocated between the Advisor and
SHI on a pro rata basis based on an Asset Management Fee of .35% of Average Invested Assets payable
to the Advisor pursuant to the Advisory Agreement as modified by this Agreement and an Asset
Management Fee of .25% of Average Invested Assets payable to SHI pursuant to Section 4 of this
Agreement.
(ii) The Disposition Fee payable to SHI shall equal 1% of the sales price of the Property or
Properties (whether sold individually or together, including pursuant to a merger of CHP with
another entity); provided, however, that no Disposition Fee shall be paid to SHI if, at the time
such payment is due, CHP (as successor to the Advisor) has the right to terminate the Sub-Advisory
Agreement pursuant to Section 18(a) thereof (as modified by Section 4(D) of this Agreement). The
Disposition Fee shall be paid at the rate of 1/12th of .25% of Average Invested Assets
per month; provided, however, that up to (but not exceeding) six monthly installments of such
payments shall be credited against the final Disposition Fee payable to SHI upon the sale of the
Properties or consummation of another transaction pursuant to which CHP is sold. The Disposition
Fee payments will not be deemed Operating Expenses for the purpose of the 2%/25% Guidelines.
C. The Parties acknowledge that neither the assignment of the Sub-Advisory Agreement to CHP,
nor any of the actions contemplated under this Omnibus Agreement, constitute an event of
termination under Section 18 of the Sub-Advisory Agreement.
D. Sections 6(a)-(c), 6(g), 11(b), 14, 16, 17, 18(a)(iii) and 18(b)(v) of the Sub-Advisory
Agreement are hereby deleted in their entirety.
5. Cancellation of Indebtedness. CHP hereby cancels and forgives the following
amounts which, as of May 31, 2011, are or may be due from the Advisor:
A. $2,108,624, representing the receivable due, pursuant to the 2%/25% Guidelines, to CHP from
the Advisor in the amount of $1,618,248 for the period beginning April 1, 2010 and ending March 31,
2011, plus the projected Excess Amount (as defined in the Charter) equal to $490,400, accrued from
April 1, 2011 through May 31, 2011;
B. $882,000, representing Acquisition Fee advances from CHP pursuant to the Advisory
Agreement; and
C. $792,000, representing Organization and Offering Expenses advances from CHP pursuant to the
Advisory Agreement.
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The Advisor shall remain liable to CHP for any Excess Amount (other than amounts determined by
the Committee to be justified based on unusual and non-recurring factors) which accrues after June
1, 2011.
6. Lender Consents. The Advisor and SHI will use their commercially reasonable
efforts to secure all consents and/or waivers which are necessary or advisable from CHP’s lenders
in connection with the transactions contemplated under this Agreement, and otherwise.
7. Releases.
A. Cornerstone Parties Release. Subject to applicable law, except for the rights,
duties and obligations arising under this Agreement and the documents referenced in this Agreement
(other than the Alliance Agreement), and except for Claims (as defined below) arising from fraud,
each of the Cornerstone Parties, for itself or himself and for its or his past, present, and future
stockholders, members, directors, officers, affiliates, representatives, agents, servants,
employees, successors, predecessors, and assigns, hereby completely releases, acquits and forever
discharges each of the other Parties to this Agreement and their respective past, present, and
future stockholders, trustees, directors, officers, affiliates, representatives, agents, servants,
employees, successors, predecessors, and assigns of and from any and all actions, causes of action,
claims, accountings, demands, damages, costs, losses, expenses, liabilities, attorneys fees, court
costs, and debts whatsoever of every name and nature (hereinafter individually, severally, and
collectively referred to as “Claims”), known to any of the Cornerstone Parties as of the date of
this Agreement and arising out of the conduct of CHP’s business and operations prior to the date
hereof (which shall not be deemed to include the sale of CHP’s securities).
B. SHI Release. Subject to applicable law, except for the rights, duties and
obligations arising under this Agreement and the documents referenced in this Agreement (other than
the Alliance Agreement), and except for Claims arising from fraud, SHI, for itself and for its
past, present, and future stockholders, members, directors, officers, affiliates, representatives,
agents, servants, employees, successors, predecessors, and assigns, hereby completely releases,
acquits and forever discharges each of the other Parties to this Agreement and their respective
past, present, and future stockholders, trustees, directors, officers, affiliates, representatives,
agents, servants, employees, successors, predecessors, and assigns of and from any and all Claims
known to SHI as of the date of this Agreement and arising out of the conduct of CHP’s business and
operations prior to the date hereof (which shall not be deemed to include the sale of CHP’s
securities).
C. CHP Release. Subject to applicable law and the Charter, except for the rights,
duties and obligations arising under this Agreement and the documents referenced in this Agreement
(other than the Alliance Agreement), and except for Claims arising from fraud, CHP, for itself and
for its past, present, and future stockholders, members, directors, officers, affiliates,
representatives, agents, servants, employees, successors, predecessors, and assigns, hereby
completely releases, acquits and forever discharges each of the other Parties to this Agreement and
their respective past, present, and future stockholders, trustees, directors, officers, affiliates,
representatives, agents, servants, employees, successors, predecessors, and assigns of and from
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any and all Claims known to CHP as of the date of this Agreement and arising out of the conduct of
CHP’s business and operations prior to the date hereof (which shall not be deemed to include the
sale of CHP’s securities).
8. No Admission of Liability. This Agreement is intended to be and is a settlement
and compromise of disputed claims. The execution of this Agreement, and the exchange of
consideration, releases, and other actions provided herein, are not to be construed as any
admission or concession on the part of any Party with respect to any fault, culpability or
liability.
9. Costs. Each Party shall be responsible for all attorney’s fees and other expenses
incurred by or on behalf of such Party in respect of this Agreement and the matters contemplated
hereby, and shall have no responsibility for any fees or expenses incurred by or on behalf of any
other Party.
10. Miscellaneous.
A. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions of the Parties, whether oral or written.
No amendment, supplement, modification, waiver or termination of this Agreement shall be binding
unless executed in writing by all Parties hereto, or in the case of a waiver, by the Party for whom
such benefit was intended. The headings in this Agreement are for reference purposes and shall not
affect the meaning or interpretation of this Agreement
B. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns.
C. Severability. Any provision of this Agreement or the application thereof that is
held invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining provisions hereof, or the validity or enforceability of the
offending provision in any other situation or in any other jurisdiction.
D. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard to principles of
conflicts of laws. Any suit involving any dispute or matter arising under this Agreement may only
be brought in the federal or state courts located in the State of California. Each of the Parties
hereto consents to the exercise of personal jurisdiction by such courts with respect to all such
proceedings. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS
TO A JURY TRIAL, TO THE FULLEST EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, IN ANY
PROCEEDING, CLAIM, COUNTER-CLAIM OR OTHER ACTION INVOLVING ANY DISPUTE OR MATTER ARISING UNDER THIS
AGREEMENT.
E. Notice. All notices and communications pursuant to this Agreement shall be in
writing and shall be deemed properly given and effective when received if (i) personally delivered
to the applicable Party, (ii) mailed by registered or certified mail, postage prepaid, return
receipt requested, to the address of the applicable Party, (iii) sent by other delivery service
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providing evidence of delivery to the address of the applicable Party or (iv) sent via electronic
transmission to the applicable Party.
F. Construction. The Parties and their respective legal counsel (if they chose to
retain such counsel) each had an opportunity to participate in the negotiation and drafting of this
Agreement, and in the event of any ambiguity or mistake herein, or any dispute among the Parties
with respect to the provisions hereto, no provision of this Agreement shall be construed
unfavorably against any of the parties on the ground that it or its counsel was the drafter
thereof.
G. Counterparts. This Agreement may be executed in counterparts, including in
facsimile and .pdf format, each of which shall be deemed an original, but all of which together
shall constitute one instrument.
The remainder of this page left is blank intentionally. Signatures follow on next page.
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IN WITNESS WHEREOF, the Parties have executed and delivered this Omnibus Agreement as of the
date set forth above.
| CORNERSTONE VENTURES, INC. |
||||
| BY: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | ||||
| CIP LEVERAGED FUND ADVISORS, LLC |
||||
| BY: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | ||||
| CORNERSTONE LEVERAGED REALTY ADVISORS, LLC |
||||
| BY: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | ||||
| SERVANT HEALTHCARE INVESTMENTS, LLC |
||||
| BY: | /s/ Xxxx Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxx Xxxxxx | |||
| Title: | CEO | |||
| /s/ Xxxxx Xxxxxxx | ||||
| XXXXX XXXXXXX | ||||
| CORNERSTONE HEALTHCARE PLUS REIT, INC. |
||||
| BY: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President | |||
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SCHEDULE A
OMNIBUS AGREEMENT
CORNERSTONE VENTURES, INC., CIP LEVERAGED FUND ADVISORS, LLC,
CORNERSTONE LEVERAGED REALTY ADVISORS, LLC
CHP INTERESTS
CORNERSTONE VENTURES, INC., CIP LEVERAGED FUND ADVISORS, LLC,
CORNERSTONE LEVERAGED REALTY ADVISORS, LLC
CHP INTERESTS
| CHP Entity | CHP Interest | Interest Holder | ||
| 100 Shares | Xxxxx Xxxxxxx | |||
Cornerstone Healthcare Plus Operating
Partnership, LP
|
0.15% LP Interest | Cornerstone Leveraged Realty Advisors, LLC | ||
CGI Healthcare Operating Partnership, LP
|
0.9% LP Interest | Cornerstone Leveraged Realty Advisors, LLC |
