Exhibit 10.47
FORM OF MANAGEMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made effective as of the 31st day
of March, 2002, between [ ], a Delaware corporation (the "Management
Firm") and Balanced Care Realty (OFC), Inc., a Delaware corporation (the
"Owner").
W I T N E S S E T H
WHEREAS, the Owner is or will be the owner of a residential care
facility with [ ] licensed beds located in [ ], having an
address of [ ] (the "Facility"); and
WHEREAS, Owner is or will be the sole operator of the Facility
located on the Property; and
WHEREAS, the Management Firm is experienced in operating such
facilities and is willing to be the exclusive manager and operator of the
Facility on behalf of the Owner, as an independent contractor pursuant to the
terms and conditions set forth herein; and
WHEREAS, Management Firm has or will have a license from the
State of Ohio to operate the Facility; and
WHEREAS, Owner, wishes to engage Management Firm as the sole and
exclusive operator and manager of the Facility; and
WHEREAS, during the term of this Agreement, the Management
Firm shall be the exclusive manager and operator of the Facility on behalf of
and in the name of the Owner.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Scope of Work. Owner hereby appoints Management Firm as the exclusive
operator and manager of the Facility during the term of this Agreement. The
Management Firm shall have full responsibility and authority in the name and on
behalf of Owner to operate and manage the Facility and hereby covenants and
agrees to take all actions necessary or desirable to operate and manage the
Facility and to fulfill its duties hereunder,
including to: (i) operate and maintain the Facility on behalf of the Owner as a
comprehensive residential care facility providing personal care services; (ii)
collect all room and board revenue, as well as other revenue, and timely pay all
debts and other obligations relating to the Facility, including operating
expenses, fixed expenses and taxes; (iii) ensure the Facility complies with
applicable Federal, state and local laws and regulations; (iv) provide all
necessary services to ensure that the Facility provides quality care to its
residents; (v) recruit, hire and train personnel as needed for the operation of
all departments and services of the Facility; (vi) maintain such bank accounts
as may be necessary or desirable for the operation of the Facility (the
"Operating Accounts"); (vii) establish salary levels, performance standards,
personnel policies and employee benefits for the Owner's employees; (viii) apply
for, obtain and maintain a license from the Ohio Department of Health to operate
the Facility as a residential care facility and take all reasonable actions to
ensure that no license , permit, right, franchise or privilege in connection
with the Facility is allowed to lapse or to be revoked so long as the same shall
be necessary for the operation of the Facility; (ix) comply with all terms of
the Loan Documents (as defined in that certain Term Loan Agreement dated as of
March 31, 2002, executed among Balanced Care Corporation, Owner, Management Firm
and the other parties named therein, the "Loan Agreement")), and (x) to take all
other actions necessary or desirable to operate and manage the Facility in
accordance with prudent practice and industry standards.
Without limiting the generality of the foregoing, Management Firm
shall, as part of its management duties hereunder and on behalf of (and at the
sole cost of) Owner, perform each and every obligation of Owner under the Loan
Agreement and the other Loan Documents through out the term hereof, including
all representations and warranties of Owner contained therein, to the extent
applicable. Additionally, the Management Firm shall collect all revenues of any
kind or nature from the Facility, and so long as any amounts are owing to Ocwen
(as defined in the Loan Agreement) under the Loan Agreement and the other Loan
Documents, make payments of principal and interest and other sums due and owing
to Ocwen under the Loan Agreement from revenues of Facility or as otherwise
provided in the Loan Documents.
In performing its duties, the Management Firm (through its in-house
corporate staff or independent contractors) shall perform the following with
respect to the Facility, as well as
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any other matters reasonably related thereto commencing upon the date of this
Agreement:
(a) Management Information Systems (MIS)
Support centralized Facility information systems that provide
management for the following areas:
-- Accounts Receivable
-- Accounts Payable
-- Coordination of Payroll with Third Party Vendor
-- Financial Reporting
-- Marketing
-- General Ledger
The Management Firm shall be responsible for billing and collection
of accounts receivable generated in connection with the Facility.
(b) Legal Counsel
(i) Prepare or coordinate with outside legal counsel for
preparation of documents for operation of the Facility, including
resident agreements, supplier/vendor contracts, service contracts,
equipment leases and other ancillary contracts; (ii) prepare or
coordinate licensure and other regulatory applications; (iii)
coordinate all litigation involving the Facility with local counsel
or the insurance companies; (iv) coordinate with local counsel on
local law issues affecting the Facility; (v) process working
capital requests, and apply for, negotiate and obtain letters of
credit or other credit enhancements from lending institutions; and
(vi) provide legal counsel or coordinate with local counsel to
provide counsel to the Facility's Human Resources Department.
Without limiting the generality of Section 2 and Section 10 below,
the parties acknowledge that all outside counsel expenses under the foregoing
paragraph shall be an expense of the Owner.
(c) Accounting/Tax
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(i) Provide an accountant to supervise all accounting
activities; (ii) implement accounting policies and guidelines;
(iii) provide a centralized cash management system; (iv) subject to
the terms and conditions of the Loan Agreement and other Loan
Documents, deposit in Operating Accounts all funds received from
the operations of the Facility and satisfy obligations of the
Facility from such Operating Accounts; (v) subject to the terms and
conditions of the Loan Agreement and other Loan Documents,
negotiate and administer working capital lines of credit available
to the Facility; (vi) supervise the Facility's internal control
structure; (vii) provide payroll, income and real estate tax
support as follows: prepare or supervise preparation of all tax
returns, assist the Facility in the event of a tax audit, assist
the Facility with technical issues relating to payroll, excise and
other taxes, and monitor pending and final Federal, State and local
tax law changes; (viii) maintain the Facility's accounting and tax
records; (ix) provide operations expertise through site visits and
strategies to maximize fiscal performance; and (x) develop and
implement a budget for operations, capital outlay and cash
requirements. All checks or other documents for withdrawal of funds
shall be signed by the appropriate officer of the Management Firm
or its designee. Deposits may be made by the appropriate officer of
the Management Firm or its designee.
(d) Human Resources
(i) Implement all personnel policies and guidelines; (ii)
recruit management personnel of the Facility, including the
community director of the Facility, which recruitment and the
salaries related thereto shall be an expense of the Owner; (iii)
provide on-going training for the Facility's Human Resources
Director; (iv) negotiate and administer all employee benefit plans
including, without limitation, health insurance, dental insurance,
life insurance, long-term disability
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insurance, and retirement/401K; (v) negotiate and administer
general and professional liability, workers' compensation,
property, and vehicular insurance plans; (vi) monitor the
Facility's compliance with Federal, State and local employment
laws; (vii) respond to all government compliance agencies and legal
proceedings as necessary; (viii) implement and monitor safety/loss
control programs; (ix) develop and implement career planning and
manpower development strategies; (x) recruit, employ and train
personnel as needed for the operation of all departments and
services of the Facility; and (xi) establish and enforce salary
levels, performance standards, personnel policies and employee
benefits for all employees within applicable budgetary and
regulatory limits. Owner acknowledges and agrees that all personnel
employed at the Facility, including without limitation the
community director and the marketing director, shall be deemed the
employees of the Management Firm, but shall be paid salaries and
wages (including employment taxes and the like) by Owner as part of
the expenses of the Facility.
(e) Program Development
(i) Provide ongoing program development and management
consultation; (ii) supply select program manuals for local
modification and implementation; and (iii) provide program
development/management training.
(f) Quality Management
(i) Provide model quality management systems and implement
such including risk management, resident/family satisfaction,
licensing and accreditation, and program evaluation; and (ii)
provide ongoing monitoring of the Facility resident outcomes,
compare with regional and national norms, and make program
modifications.
(g) Marketing/Communication
(i) Hire, direct and supervise marketing
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department staff; (ii) train staff (program managers,
rehabilitation liaisons, marketing representatives, etc.) in
marketing skills; (iii) organize strong sales efforts within the
target area, develop program mix strategies, and develop marketing
plans for the Facility; (iv) establish an intake/admission system
and continuously review the admission process; (v) develop image
building advertising strategies for the Facility; and (vi) develop
and produce Facility selected promotional literature.
(h) Contracting
Negotiate and execute contracts and agreements related to the
Facility with third parties and parties affiliated with the
Management Firm; provided that all contracts and agreements with
parties affiliated with the Management Firm shall be on terms no
less favorable than terms for comparable contracts and agreements
with unaffiliated parties.
(i) Miscellaneous
(1) Obtain and maintain in accordance with all applicable
Ohio laws and regulations all licenses, approvals and
certifications required for operation of the Facility
and use reasonable efforts to procure eligibility for
participation in other applicable referral or payor
programs. Comply with all notification and reporting
requirements imposed under Ohio laws and regulations in
connection with the operation of the Facility.
(2) Purchase supplies, using procurement practices in
accordance with industry standards, and lease equipment
under national and regional agreements or purchase
contracts of the Management Firm or its affiliated
companies and provide to the Owner all benefits
resulting therefrom to the extent permitted by their
terms and by law. All such supplies so purchased shall
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become property of the Owner. Once leases are
completed, equipment shall become property of the
Owner.
(3) Review and analyze the performance of ancillary
services under contract and negotiate contractual
arrangements therefore.
(4) Maintain books and records for the Facility at the
Management Firm's address herein for the purpose of
providing services under this Agreement. The Management
Firm shall make available to the Owner and any lender
of the Facility, and their respective agents,
accountants, and attorneys during normal business hours
all books and records pertaining to the Facility, and
the Management Firm shall promptly respond to any
questions of the Owner or any such lender with respect
to such books and records and shall confer with the
Owner and any such lender at all reasonable times, upon
request, concerning the operation of the Facility.
(5) Order, supervise and conduct a program of regular
maintenance and repair of the Facility at the Owner's
cost and expense. So long as the Loan Agreement is in
full force and effect, such maintenance and repair
program shall comply with the requirements of the Loan
Agreement related thereto.
(6) Supervise and provide for the operation of food service
facilities for the Facility.
(7) Make periodic evaluations of the performance of all
departments of the Facility and investigate and report,
upon request, any inconsistency between expenditures
and budget.
(8) Implement all policies and procedures
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reasonably necessary for the operation of the Facility
consistent with applicable regulations.
(9) Xxxxxx a working relationship between Management Firm
and any authorized volunteer or auxiliary groups
interested in providing support to the Facility and
residents of the Facility.
2. Additional Services. It is the intention of the parties that the Management
Firm be responsible for providing all service necessary or desirable for the
efficient and orderly management and operations of the Facility; provided, the
cost and expense of operating the Facility is to be paid by Owner. The
Management Firm shall actively utilize staff specialists in its employ or that
of its affiliates in such areas as accounting, budgeting, marketing,
reimbursement, dietary, housekeeping, clinical, pharmaceutical, purchasing and
third party payments in the management of the Facility when considered desirable
by the Management Firm. The expense of such personnel shall be the
responsibility of Owner.
3. Financial Statement. The Management Firm shall prepare and deliver to the
Owner an un-audited balance sheet within forty-five (45) days after the close of
each fiscal quarter of the Owner. The Management Firm shall also cause an
un-audited annual statement to be made of the financial records of the Facility
and a copy of such report shall be provided to the Owner as soon as it is
available after the end of the fiscal year. The cost of the reports shall be an
expense of the Facility and shall be paid for by the Owner. The fiscal year for
the Facility shall coincide with the Owner's fiscal year. All financial
statements are to be prepared in accordance with GAAP. Notwithstanding anything
to the contrary contained herein, the Management Firm shall provide financial
reporting to Ocwen at such times and in such form as may be required from time
to time by Ocwen under the Loan Agreement.
4. Property Interests/Confidentiality. (a) The technical systems, methods,
policies, procedures and controls, copyrights, "know-how" and all other
intellectual property rights related thereto employed by the Management Firm
(the "Intangible Rights") are to remain the property of the Management Firm and
are not, at any time, to be utilized, distributed, copied or otherwise
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employed or acquired by the Owner except as authorized herein, in writing by the
Management Firm, or except as may be required by law or court order.
(b) Owner understands and acknowledges that Management Firm has
devoted substantial time, energy and expense to developing a process and
procedure to manage and operate facilities such as the Facility, and that such
processes, procedures, Intangible Rights and the information and materials
compiled or prepared in connection therewith, including without limitation
marketing plans, business plans, pricing information, information on
competition, demographics, suppliers and providers of services and financing
arrangements (collectively "Confidential Information") are proprietary to
Management Firm and the confidential information of the Management Firm. Owner
shall not disclose to any party any Confidential Information, without the prior
written consent of Management Firm, except as may be required by law or court
order.
(c) Notwithstanding the foregoing, Intangible Rights and
Confidential Information shall in no event include materials, lists, books,
records, pamphlets, rental agreements, supplier lists, prescription lists and
schedules, employee information, dietary instructions for residents and other
similar items that are integral to the operation of the Facility.
(d) The provisions of this Section shall survive the expiration or
sooner termination of this Agreement.
5. Term of Agreement. The term of this Agreement shall commence upon the date
hereof, and continue for a period of five (5) years thereafter. This Agreement
shall be automatically renewed for additional consecutive one (1) year terms
unless either party gives the other party notice of its intent not to renew,
which notice must be given at least ninety (90) days prior to the expiration of
the then current term.
6. Termination. (a) Subject to the provisions of the Loan Documents, the Owner
may terminate this Agreement (i) in the case of fraud of the Management Firm,
immediately and (ii) in all other cases, upon written notice if the Management
Firm defaults in the performance of any material covenant, agreement, term or
provision of this Agreement to be performed by it and such default continues for
a period of forty-five (45) days after written notice to the Management Firm
from the Owner stating the
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specific default or, if such default is not subject to cure within forty-five
(45) days, such longer period as may be required to effect a cure, provided
Management Firm initiates curative action within forty-five (45) days and
thereafter is diligently and in good faith pursuing such cure.
(b) Subject to the provisions of the Loan Documents, the Management
Firm may terminate this Agreement upon written notice in the event any one or
more of the following events shall occur:
(1) If the Owner shall fail to timely pay to the Management
Firm any Management Fee required to be paid in
accordance with Paragraph 9 hereof and such failure
continues for ten (10) days after Owner's receipt of
written notice from Management Firm of such nonpayment;
or
(2) If the Owner defaults in the performance of any other
material covenant, agreement, term or provision of this
Agreement to be performed by the Owner and such default
continues for a period of forty-five (45) days after
written notice to the Owner from the Management Firm
stating the specific default or, if such default is not
subject to cure within forty-five (45) days, such
longer period as may be required to effect a cure,
provided the defaulting party initiates curative action
within forty-five (45) days and thereafter is
diligently and in good faith pursuing such cure; or
(3) If the Facility or a material portion thereof is
damaged or destroyed by fire or other casualty and the
Owner fails to commence to repair, restore, rebuild or
replace any such damage or destruction within ninety
(90) days of the occurrence of such damage or
destruction, and thereafter to complete such work
within a reasonable period of time.
In the event of termination of this Agreement by either party
pursuant to Section 6(a) or 6(b) above, the Management Firm
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shall have the right to enter the Facility and remove all of its personal
property and Intangible Rights material.
(c) Upon termination of this Agreement for any reason, Management
Firm shall as soon as practical, but in any event within 60 days after such
termination, deliver to Owner (or, if directed in writing by Ocwen, to Ocwen and
Owner) all records, books, accounts, contracts, leases, receipts for deposits,
unpaid bills and other papers or documents pertaining to the Facility not
constituting Intangible Rights or Confidential Information. In addition,
Management Firm shall deliver (i) to Owner and Ocwen, a final accounting,
reflecting the balance of income and expenses on the Facility as of the date of
termination, (b) to Ocwen, any balance or moneys of Owner or resident security
deposits, or both, held by the Management Firm with respect to the Facility, to
be delivered immediately, less amounts properly due Management Firm and (iii) to
Ocwen (with a copy to Owner) all records, contracts, leases, receipts for
deposits, unpaid bills and other papers and documents which pertain to the
Facility. Further, the Management Firm shall cooperate in all reasonable ways
with Ocwen in the event of a termination of this Agreement during the Loan
Agreement term so as to facilitate a smooth and efficient transfer of control of
the Facility.
7. Liability and Indemnification/Force Majuere. (a)By the Management Firm. The
Management Firm shall indemnify, defend, save and hold harmless the Owner and
any lender of the Facility, and their respective shareholders, officers,
directors, employees, or agents from and against all demands, claims, actions,
losses, damages, deficiencies, liabilities, costs and expenses (including,
without limitation, attorney's fees, interest, penalties and all amounts paid in
investigation, defense or settlement of any of the foregoing) asserted against
or incurred by the Owner or any such lender, their respective shareholders,
officers, directors, employees, or agents, in connection with, or arising out
of, or resulting from (i) a breach of any covenant, agreement, representation or
warranty of the Management Firm or (ii) the negligent or willful acts or
omissions of Management Firm, its employees or agents. The provisions of this
Section shall survive the expiration or sooner termination of this Agreement.
(b) By the Owner. The Owner shall indemnify, defend, save and hold
harmless the Management Firm, its shareholders, officers, directors, employees,
or agents from and against all
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demands, claims, actions, losses, damages, deficiencies, liabilities, costs and
expenses (including, without limitation, attorney's fees, interest, penalties
and all amounts paid in investigation, defense or settlement of any of the
foregoing) asserted against or incurred by the Management Firm, its officers,
directors, employees, or agents, in connection with, or arising out of, or
resulting from (i) a breach of any covenant, agreement, representation or
warranty of the Owner or (ii) the negligent or willful acts or omissions of
Owner, its employees or agents. The provisions of this Section shall survive the
expiration or sooner termination of this Agreement.
Nothing contained herein shall preclude either party from asserting
any claims or suits against the other party that may arise out of the terms and
provisions of this Agreement.
(c) The Management Firm shall not be deemed to be in violation of
this Agreement, and its performance shall be excused, if it is prevented from
performing any of its obligations hereunder for any reason beyond its reasonable
control, including shortages in labor or supplies, war, acts of God, failure of
the Owner to advance funds, or changes in any law of Federal, State or local
government, or any agency thereof.
8. Relationship Between Parties. The relationship of the Management Firm to the
Owner shall be that of independent contractor.
9. Management Fee. The Management Firm for the services rendered hereunder shall
be entitled to six percent (6%) of gross revenues of the Facility as its sole
compensation for management of the Facility (the "Management Fee"). The
Management Fee shall be paid monthly, and shall be based on the financial
operations of the Facility as of the end of each calendar monthly. To the extent
that the year-end audited financial statements for the Facility disclose that
the Management Fee actually received during the year than ended was greater or
less than what should have been received, Owner shall (in case of underpayment)
pay upon demand the shortfall and (in the case of overpayment) shall be credited
against the Management Fee due in the next succeeding quarter such overpayment.
Further, notwithstanding anything to the contrary contained herein, the payment
of the Management Fee and all other compensation to the Management Firm shall be
subject in all events to the Loan Documents.
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10. Funding of Costs and Expenses by the Owner. The Owner, and not the
Management Firm, shall be responsible for the costs and expenses of all
operations of the Facility. The Owner shall at all times provide sufficient
working capital for operation of the Facility and shall deposit such capital
from time to time into the Operating Accounts of the Facility in advance of the
time required to be disbursed by the Management Firm.
11. No Approval by the Owner. The Management Firm shall operate the Facility and
the Owner act as a passive investor with respect thereto. The Management Firm
shall, not less frequently than annually, adopt a plan of operation for the
Facility which shall set forth proposed staffing, budgets, program and related
matters; such shall not, however, be subject to approval of the Owner or its
designee. The Owner shall not participate in the day-to-day operation of the
Facility.
12. Other Facilities. Owner understands and acknowledges that Management Firm is
in the business of operating facilities such as the Facility, and that
Management Firm intends to continue to manage and operate such other facilities,
which may or may not be in competition with the Facility. Nothing contained
herein shall be deemed to be construed as a restriction on the Management Firm's
right to so operate and manage such other existing facilities or facilities that
may be opened in the future, even if such facilities are in competition with the
Facility.
13. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered in person, Federal
Express or other recognized overnight courier or sent by registered or certified
U.S. mail, return receipt requested or sent by facsimile or telecopy
transmission (in which event such facsimile or telecopy shall be confirmed and
followed within one business day with delivery by one of the alternate methods
set forth herein) and addressed:
(i) If to the Management Firm, at:
[ ]
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
(ii) If to the Owner, at:
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BALANCED CARE REALTY (OFC), INC.
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
or to such other address or facsimile number as a party may designate by notice
to the other parties hereto.
14. [Intentionally Deleted].
15. Compliance with Federal Records Requirements. To the extent required under
applicable Law, the Management Firm shall, (and if Management Firm carries out
any of the duties under this Agreement through a subcontract with a related
organization and such subcontract has a value or cost of $10,000 or more during
any 12-month period, Management Firm shall cause such subcontract to contain a
clause to the effect that the subcontractor shall), until the expiration of four
(4) years after the furnishing of services hereunder, make available upon
written request by the Secretary of Health and Human Service or the Comptroller
General of the United States or any of their duly authorized representatives,
this Agreement and the books, documents and records of the Management Firm (or
such subcontractor) that are necessary to verify the nature and extent of the
costs furnished under this Agreement.
16. Successors and Assigns. Except as otherwise expressly provided in the Loan
Documents, Owner may not assign this Agreement, expressly, by operation of law,
or otherwise, without the prior written consent of the Management Firm, which
consent may be withheld in the sole discretion of the Management Firm.
Management Firm may not assign this Agreement, expressly, by operation of law,
or otherwise, without the prior written consent of the Owner; provided, however,
(subject to the Loan Documents) Management Firm may assign its rights and
obligations hereunder without consent to (i) any affiliate and (ii) to Ocwen.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties hereto have affixed their names by their proper officers or duly
authorized representatives the day and year first above written.
MANAGEMENT FIRM: [ ]
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
OWNER: BALANCED CARE REALTY (OFC), INC.
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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