EXHIBIT 10.27
AMENDED AND RESTATED LONG TERM CARE FACILITY
MANAGEMENT AGREEMENT
(Clearwater Health & Rehabilitation)
THIS AMENDED AND RESTATED MANAGEMENT AGREEMENT (the "Agreement") made as
of the 6th day of July, 1994, effective as of October 1, 1993, by and between
WelCare International Properties Corporation, a Georgia corporation ("Lessee"),
and WelCare International Management Corporation, a Georgia corporation
("Manager").
W I T N E S S E T H :
WHEREAS, the Lessee presently leases certain real and personal property
comprising a certain 60 bed nursing center located in Orofino, Idaho (the
"Facility") pursuant to that certain Amended and Restated Lease Agreement dated
as of July 6, 1994 (the "Lease"), by and between Lessee and EBT Healthcare
Properties, L.P. (the "Lessor"); and
WHEREAS, the Lessee and Manager desire for Manager to provide its
experience, skill and supervision to manage the Facility on behalf of Lessee
under and subject to the terms of this Agreement, which completely amends and
restates that certain Management Agreement dated as of October 1, 1993.
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 is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
MANAGEMENT DUTIES AND OBLIGATIONS
1.01 Control Retained by Lessee. Lessee shall at all times exercise
overall control over the assets and operations of the Facility, and Manager
shall perform the duties herein required to be performed by it as the agent of
Lessee and in accordance with the policies and directives from time to time
adopted by Lessee.
1.02 Changes in Method of Operation. Manager shall make substantial
changes in the method of operating the Facility only after timely notification
to and approval from Lessee.
1.03 Management of Facility. During the term of this Agreement, Manager
shall on behalf of Lessee 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:
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(a) Hire or lease on behalf of Lessee 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 Lessee at
Manager's sole 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 Lessee 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 Lessee; provided, however, that leased employees shall be subject to the
general salary scales, personal 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 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. Lessee hereby grants Manager the right to enforce
Lessee'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, except that physical improvements costing more than $5,000 shall be
subject to approval of Lessee.
(e) Purchase food, beverage, medical, cleaning and other supplies,
equipment, furniture and furnishings for the account of Lessee, except that the
purchase of any single item which costs more than $5,000 shall be subject to
approval to Lessee.
(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 of Lessee
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.
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(i) Obtain and maintain insurance coverage for the Facility naming
Lessee, Manager and such other persons requested by Lessee as insureds as
provided in Section 4.01 hereof.
(j) Negotiate and enter into, in the name of and on behalf of
Lessee, 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.
(k) Negotiate on behalf of Lessee (and in conjunction with Lessee's
counsel) with any labor union lawfully entitled to represent employees of Lessee
who work at the Facility, but any collective bargaining agreement or labor
contract must be submitted to Lessee for its approval and execution.
(1) 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 non-governmental 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 Lessee in designing an adequate and
appropriate public relations program.
1.04 Reports to Lessee.
(a) Manager shall prepare and deliver to Lessee, 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 and approved by Lessee, in the preparation of unaudited (or
audited if so requested by Lessee) financial statements for the operation of the
Facility. Such financial statements shall be prepared at Lessee's expense in
accordance with generally accepted accounting principles in the health care
field consistently applied and delivered to Manager and Lessee promptly after
the end of each fiscal year of the Facility. Manager shall prepare reports or
provide information to Lessee required by the Lease and any loan documents of
Lessor.
(b) Manager shall submit to Lessee each twelve (12) months a
proposed budget for the operation of the Facility setting out anticipated
income, expenses and capital expenditures during the succeeding twelve (12)
month period, and shall use its best efforts to operate the Facility in
accordance with the provisions
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of the budget for the Facility submitted to and approved by Lessee. Such
proposed budget for the Facility shall be delivered to Lessee no later than
thirty (30) days 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 Lessee no less frequently than
semi-annually and shall furnish to Lessee quarterly written progress reports
concerning the operation of the Facility.
1.05 Bank Accounts and Working Capital. Manager, in the Facility's name
and on behalf of Lessee, shall deposit in a bank account or accounts of the
Facility (the "Operating Accounts") established in Lessee's name all funds
received from the operations of the Facility. Lessee shall provide sufficient
working capital for the operation of the Facility and shall make deposits in the
Operating Account of such working capital from time to time upon the request of
Manager. All costs and expenses incurred in the operation of the Facility shall
be paid out of the Operating Accounts. Manager shall specify with the approval
of the Lessee the signatory or signatories required on all checks or other
documents of withdrawal for the Operating Accounts.
1.06 Access to Books, Records and Documents. If it is ultimately
determined that Section 952 of the Omnibus Reconciliation Act of 1980 and final
regulations promulgated thereunder apply to this Agreement:
(a) Until the expiration of four 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 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.
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1.07 Licenses.
(a) Manager shall, on behalf of Lessee, use its reasonable best
efforts to apply for, obtain and maintain all necessary licenses, permits,
consents, and approvals from all governmental agencies which have jurisdiction
over the operation of the Facility.
(b) Neither Lessee not 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 Lessee'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 Lessee, have the
right to contest by appropriate legal proceedings, diligently conducted in good
faith in the name of Lessee, 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. Lessee, 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 and approved by
Lessee. Manager shall have the right, without the written consent of the Lessee,
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 reasonably acceptable to Lessee, to serve as the chief executive
officer of such Facility. The Administrator shall be an employee of and shall be
compensated by Lessee and Lessee shall pay, in advance, on or before the fifth
(5th) day of each month all compensation, including salary, fringe benefits,
bonuses and business expense reimbursements approved by Manager, payable to the
Administrator. The term "fringe benefits" shall include, without limitation,
employer's F.I.C.A. 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
Lessee, not of Manager, and shall be paid out of the Operating Accounts of the
Facility. With the Lessee'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.
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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 Lessee.
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 any 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 Lessee of
the actions necessary in order to be in compliance therewith.
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 necessary, specialists in such fields as
accounting, auditing, budgeting, dietary services, 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 any reason 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, except for
its wilful default or gross negligence.
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1.15 Extraordinary Services. Lessee agrees that any extraordinary or
specialized service recommended by Manager and approved by Lessee, even if
provided by Manager, may be performed for a separate fee as agreed upon by
Manager and Lessee in advance of the performance of such service.
ARTICLE II
TERM AND TERMINATION
2.01 Term. The term of this Agreement shall commence on the date of this
Agreement and, unless sooner terminated as provided herein, shall end on
September 30, 2006.
2.02 Option to Extend Term. If Lessee exercises its option to extend under
the Lease, Manager shall have the option to extend the term of this Agreement
for two (2) additional periods of five (5) years each, by giving written notice
to Lessee of Manager's exercise of such right and option not later than three
(3) months prior to the end of the original term hereof or the term hereof as
previously extended. Each and all of the provisions of this Agreement shall
apply during the extended term(s) of this Agreement.
2.03 Termination for Cause.
(a) If either party shall apply for or consent to the appointment of
a receiver, trustee or liquidator of such party of all or a substantial part of
its assets, file a voluntary petition in bankruptcy, make a general assignment
for the benefit of creditors, file a petition or an answer seeking
reorganization or arrangement with creditors or take advantage of any insolvency
law, or if an order, judgment or decree shall be entered by any court of
competent jurisdiction, on the application of a creditor, adjudicating such
party bankrupt or insolvent or approving a petition seeking reorganization of
such party or appointing a receiver, trustee or liquidator for such party or all
or a substantial part of its assets, and such order judgment or decree shall
continue unstayed and in effect for any period of one hundred and twenty (120)
consecutive days, then, in case of any such event, the term of this Agreement
shall expire, at the other party's option, upon five (5) days written notice.
(b) If Lessee or Manager shall fail to keep, observe or perform any
material covenant, agreement, term or provision of this Agreement to be kept,
observed, or performed by such party, and such default shall continue for a
period of thirty (30) days, (or ten (10) days in the case of a failure to pay
any amounts due Manager under this Agreement) after notice thereof by one party
to the other, then, in case of any such event and upon the expiration of any
period of grace applicable thereto, the term of this Agreement shall expire, at
the option of the nondefaulting party, upon five (5) days written notice to the
other party. Such termination shall be without prejudice to Manager's right to
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receive management fees under Article III hereof through the end of the month in
which such termination becomes effective.
2.04 Optional Termination.
(a) Either party has the option to terminate this Agreement, without
damage or penalty, upon ten (10) days prior written notice to the other, 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 six (6) 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 six (6) 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 six (6) months.
Provided, however, that in either of such events, if Lessee or any
affiliate thereof rebuilds, restores or otherwise rearranges the Facility and
recommences operations thereof, Lessee shall give Manager the first option 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 Lessee
following the sale, transfer, assignment, or other disposition, in whole or in
part, by the Lessee of its interest in the Facility. In the event Lessee is a
corporation, any dissolution, merger, consolidation or other transfer of a
substantial portion of the stock of Lessee shall constitute an assignment of the
Facility for all purposes of this Section 2.05(b). The term "substantial
portion" means the ownership of stock possessing, and of the right of exercise,
at least fifty percent (50%) of the total combined voting power of all classes
of stock of such corporation, issued, outstanding and entitled to vote for the
election of directors whether such ownership is direct ownership, or indirect
ownership through ownership of stock possessing, and of the right to exercise,
at least fifty percent (50%) of the total combined voting power of all classes
of stock of another corporation or corporations; provided, however, that this
prohibition on stock transfer shall not apply to
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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, the Securities Exchange Act
of 1934, as amended, or the state securities laws pursuant to an exemption from
the aforementioned statutes.
ARTICLE III
MANAGEMENT FEE
3.01 Management Fee. Effective as of the date of this Agreement and for
the remainder of the term, Manager shall receive from Lessee, and Lessee shall
pay to Manager, each month during the term hereof, as the amount due for
services, a management fee equal to six percent (6%) of the Gross Revenues of
the Facility. "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.
3.02 Payment of Management Fees. On or before the tenth (10th) day of each
month during the term hereof, Lessee shall be obligated to pay Manager an
estimated management fee, calculated in accordance with Section 3.01 hereof,
based on the estimated Gross Revenues of the Facility during the current month.
All management fees due hereunder shall be withdrawn from the Operating Accounts
and paid to Manager. Any late payments of management fees not made after three
(3) days written notice to Lessee shall bear interest equal to the Advance Rate
(as defined in Section 5.11 hereof) from their original due date until fully
paid.
3.03 Adjustment. Within fifteen (15) days after the delivery of the annual
financial statements of the Facility, Lessee shall pay to Manager or Manager
shall pay to Lessee 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
audit.
ARTICLE IV
COVENANTS OF Lessee
4.01 Insurance. Manager shall provide and maintain, on behalf of Lessee
and at Lessee's expense, throughout the term of this Agreement, insurance with
responsible companies naming Lessee and Manager (as their respective interests
may appear) as insureds as required in the Lease.
4.02 Licensing; Changes and Services. Subject to the terms of
the Lease, Lessee agrees to take or cause to be taken any and all
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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. Lessee 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.
Nothing contained in this Section 4.02 shall affect the duties and
obligations of Manager with regard to the applying for, obtaining and
maintaining all necessary governmental licenses, permits, consents and approvals
set forth in Section 1.07 hereof.
4.03 Transfer of Ownership. Subject to the requirements of the Lease,
Lessee further acknowledges and agrees that upon the transfer, lease,
assignment, sale or other disposition or conveyance of all or any part of its
ownership of the Facility, this Agreement shall remain in full force and effect
unless otherwise terminated as provided in Section 2.04(b). Subject to the
requirements of the Lease, Lessee covenants and agrees that in the event that it
sells, assigns or otherwise transfers its ownership of the Facility at any time
while this Agreement is in effect, it will require the transferee to assume the
obligations of the Lessee hereunder.
4.04 Damage or Destruction. If the Facility or any portions thereof shall
be damaged or destroyed by fire or other casualty, Lessee shall commence to
repair, restore, rebuild or replace any such 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.
ARTICLE V
MISCELLANEOUS COVENANTS
5.01 Assignment. Lessee shall not assign its rights and/or obligations
under this Agreement without the prior written consent of Manager or pursuant to
the provisions of the Lease. Manager shall not assign its rights and/or
obligations under this Agreement, except to an affiliate of Manager, without
prior written consent of Lessee.
5.02 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.
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5.03 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 Lessee and Manager with respect to the Facility.
5.04 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 Lessee, by addressing the same to:
WelCare International Properties Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx X. Xxxx
(b) to Manager, by addressing the same to:
WelCare International Management Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Mr. J. Xxxxxxx Xxxxx, President
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 or
transmitted if given by hand, cable, telegraph or telecopy (receipt confirmed).
5.05 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 Lessee and Manager.
5.06 Governing Law. This Agreement has been executed and delivered in the
State of Georgia, 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).
5.07 Captions and Headings. The captions and headings throughout this
Agreement are for convenience and reference only and do not constitute a part
hereof.
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5.08 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.
5.09 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 outside consultants and
professionals, shall be the sole responsibility of Lessee. 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 Lessee 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. Lessee
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
Lessee.
5.10 Responsibility for Misconduct of Employees and Other Persons. 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 Lessee. Manager shall be liable to the Facility in connection with damage or
loss directly sustained by Lessee 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.
5.11 Advances by Manager. Manager shall have the right, but not the
obligation, to advance to Lessee any and all sums required to maintain all
necessary licenses and permits and to otherwise keep the Facility operating as a
fully insured nursing home in good condition and repair. All such sums advanced
by Manager to Lessee shall be repaid by Lessee, with interest commencing on the
date such sums were advanced at a rate equal to the announced prime rate of
interest of NationsBank of Georgia, N.A., Atlanta, Georgia, plus two percent
(2%) per annum ("Advance Rate"), immediately upon written notice thereof to
Lessee, and Manager shall have the right at any time and from time to time to
instruct the signatories of the Operating Accounts to withdraw and pay to
Manager amounts necessary in order to repay such advances.
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5.12 Definition of Affiliate. For purposes of this Agreement, the term
"affiliate" shall mean any person or entity which Manager or Lessee 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.
5.13 Authorization of Agreement. Manager and Lessee represent and warrant,
each to the other with respect to itself, 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 Lessee, 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.
IN WITNESS WHEREOF, the parties hereto have executed, sealed and delivered
this Agreement through their duly authorized representatives, as of the day and
year first above written.
WELCARE INTERNATIONAL PROPERTIES
CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx, Vice President
WELCARE INTERNATIONAL MANAGEMENT
CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx, Vice President
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SCHEDULE 10.27
CHPC has entered into agreements with CHMC substantially identical to
Exhibit 10.27 as follows:
1. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Fort Worth, Texas facility.
2. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Xxxxx, Montana facility.
3. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Coeur d'Alene, Idaho facility.
4. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Union, Mississippi facility.
5. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Natchez, Mississippi facility.
6. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Winona, Mississippi facility.
7. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Hiawatha, Kansas facility.
8. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Bossier, Louisiana facility. A material detail in which this
agreement differs from Exhibit 10.27 is this agreement terminates on September
30, 2004.
9. Amended and Restated Long Term Care Facility Management Agreement dated
July 6, 1994 for Ferriday, Louisiana facility. A material detail in which this
agreement differs from Exhibit 10.27 is this agreement terminates on September
30, 2004.
10. Amended and Restated Long Term Care Facility Management Agreement
dated July 6, 1994 for Franklinton, Louisiana facility. A material detail in
which this agreement differs from Exhibit 10.27 is this agreement terminates on
September 30, 2004.
11. Amended and Restated Long Term Care Facility Management Agreement
dated July 6, 1994 for McComb, Mississippi facility. A material detail in which
this agreement differs from Exhibit 10.27 is this agreement terminates on March
31, 2004.
12. Amended and Restated Long Term Care Facility Management Agreement
dated July 6, 1994 for Starkville, Mississippi facility. A material detail in
which this agreement differs from Exhibit 10.27 is this agreement terminates on
September 30, 2004.
13. Long Term Care Facility Management Agreement dated August 1, 1994 for
Olathe, Kansas facility. A material detail in
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which this agreement differs from Exhibit 10.27 is this agreement terminates on
July 31, 2008.
CAPC has entered into agreements with CHMC substantially identical to
Exhibit 10.27 as follows:
14. Long Term Care Facility Management Agreement dated December 20, 1994
for Atlanta, Georgia facility. A material detail in which this agreement differs
from Exhibit 10.27 is this agreement terminates on December 31, 2008.
CHIC has entered into agreements with CHMC substantially identical to
Exhibit 10.27 as follows:
15. Nursing Home Facility Management Agreement dated October 31, 1995 for
Bossier City, Louisiana facility. A material detail in which this agreement
differs from Exhibit 10.27 is this agreement terminates on October 31, 2015.
16. Long Term Care Facility Management Agreement dated November 26, 1996
for Houghton County, Michigan facility. Material details in which this agreement
differs from Exhibit 10.27 are that this agreement terminates on January 31,
2006, and CHIC, as owner of the facility, grants CHMC a right of first refusal
to purchase or lease the facility.
17. Long Term Care Facility Management Agreement dated November 26, 1996
for Marquette County, Michigan facility. Material details in which this
agreement differs from Exhibit 10.27 are that this agreement terminates on
January 31, 2006, and CHIC, as owner of the facility grants CHMC a right of
first refusal to purchase or lease the facility.
CHMC entered into agreements substantially identical to Exhibit 10.27 as
follows:
18. Long Term Care Facility Management Agreement dated January 1, 1993
with CAC for Washington, D.C. facility. A material detail in which this
agreement differs from Exhibit 10.27 is that this agreement terminates on
January 1, 2003.
19. Long Term Care Facility Management Agreement dated June 1, 1991
with WelCare Management Services, Inc. for St. Petersburg, Florida facility.
Material details in which this agreement differs from Exhibit 10.27 are that
this agreement terminates on June 1, 2001 and either party may terminate this
agreement without penalty upon 90 days prior notice.
20. Long Term Care Facility Management Agreement dated June 1, 1991 with
International Health Care Properties VII & VIII, L.P. ("IHCP") for Red Boiling
Springs, Tennessee facility. Material details in which this agreement differs
from Exhibit 10.27 are that this agreement terminates on May 1, 2011, and for a
period of two years following the term of this agreement IHCP may not hire any
employees of CHMC or its affiliates.
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