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EXHIBIT 10(d)
AGREEMENT
This AGREEMENT made as of this 26th day of February, 1998 by and
between NATIONAL FOUNDATION ON GERENTOLOGY, INC. (hereinafter "NFG"), a Georgia
non-profit corporation and JUST LIKE HOME, INC., JLH MANAGEMENT CORP., JLH
SERIES, INC., and JLH IV, INC. (collectively "JLH").
WHEREAS, on March 3, 1994, NFG, as borrower, entered into a duly
authorized written Trust Indenture ("Trust Indenture") with Sentinel Trust
Company ("Sentinel"), as trustee, to provide for the issuance of $2,500,000.00
of First Mortgage Taxable Revenue Bonds, Series 1994 ("Series 1994 Notes") to
allow NFG to finance the acquisition of four assisted living facilities
("Facilities"), and
WHEREAS, NFG was obligated to make scheduled payments into a bond fund
established for the benefit of the holders of the Series 1994 Notes and on
November 6, 1997, NFG defaulted under the terms of the Trust Indenture and
failed to cure the default within the requisite time such that NFG is in default
of the Trust Indenture; and
WHEREAS, on March 3, 1994, NFG entered into a Management Agreement with
JLH Management Corp., a Florida corporation, to manage the Facilities in
accordance with the terms and conditions of the Management Agreement, which
Agreement was terminable upon sixty (60) days written notice (the "Management
Agreement"), and
WHEREAS, in an effort to avoid having a receiver appointed, causing
resident and staff concerns, and incurring negative publicity, NFG's Board of
Directors resigned on December 19, 1996, and a new Board of Directors was duly
elected, and
WHEREAS, on January 5, 1998, NFG's newly constituted Board of Directors
gave the requisite sixty (60) days written notice to JLH of its intent to
terminate the March 3, 1994 Management Agreement by and between NFG and JLH
Management Corp., which notice of termination was duly accepted and agreed to by
JLH effective March 6, 1998, and
WHEREAS, NFG and JLH intend to enter into this Agreement to avoid the
appointment of a receiver, to avert any negative publicity that JLH might
otherwise have to endure, to maintain the Facilities' occupancy and revenues,
and to provide for the transition of management from JLH Management Corp. to a
new management company that NFG will hire to assume management of the Facilities
based upon a negotiated Management Agreement with the new manager.
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NOW THEREFORE, in consideration of the respective representations,
covenants and agreements hereinafter contained, NFG and JLH do hereby agree as
follows:
SECTION 1. TRANSFER OF MANAGEMENT AND CONTROL.
A. JLH shall transfer management control and possession of the
Facilities, including cash and all tangible and intangible assets related
thereto (hereinafter "Possession") to NFG or NFG's designee on or about April 1,
1998. However, JLH agrees to manage the Facilities without fee but otherwise per
Management Agreement on a month to month basis until May 1, 1998 at the written
request of NFG.
B. JLH shall provide and deliver to NFG on the date of Possession, a
final accounting, reflecting accounts payable, accounts receivable, and the
balance of income and expenses on the Facilities as of the date of termination.
C. JLH shall provide and deliver to NFG on the date of Possession, all
books, records, contracts, leases, documents, receipts and other papers or
documents which pertain to the Facility and have been held by JLH or its agents
or assigns.
D. JLH shall execute any and all transfer documents associated with the
orderly transfer of management and operation of the Facilities as NFG may from
time to time direct, it being the intent of the parties hereto to protect the
health, welfare and well being of the residents of the Facilities, to assure the
staff of their continued anticipated employment, and to maintain, to the extent
possible, the Facilities occupancy and revenues.
E. JLH shall, on or about the date of Possession, make the appropriate
introductions and set appointments for NFG representative(s) to meet with the
current Facilities management personnel to explain the transition in management
and operations. JLH Management Corp. may be present at such meetings.
F. JLH and NFG agree to effect the transition of Possession in a manner
so as to eliminate any inconvenience to the residents, staff and local assisted
living market. Both parties agree to refrain from negative comments about the
other.
G. As of the date of Possession, the Management Agreement shall be
terminated and deemed void and of no further force or effect.
H. For and in consideration of the promises and conveyances contained
herein, NFG, on behalf of its parents, subsidiaries, successors and assigns,
officers, directors, employees and agents, on the date of Possession, releases
and forever discharges JLH, its respective parents, subsidiaries, successors and
assigns, officers, directors, employees and agents, of and from any and all
claims, demands, rights, actions and causes of action of whatsoever kind or
nature, accrued or unaccrued, known or unknown, whether in law or in equity,
which NFG has or claims to have against JLH,
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including, but not limited to, all claims arising out of, caused by or in any
way related to the management of the Facilities by JLH, the terms and conditions
contained in the Management Agreement, and of and from any and all claims for
breach of covenants not to compete, conversion or proprietary information or
trade secrets, breach of fiduciary duty, usurpation of a corporate opportunity,
and tortious interference with contract, and of and from any and all claims
asserted or which may have been asserted by NFG at any time.
For and in consideration of the payments, promises and releases
contained herein, JLH, on behalf of its parents, subsidiaries, successors and
assigns, officers, directors, agents and employees, does hereby release and
forever discharge NFG, its parents, subsidiaries, successors and assigns,
officers, directors, employees and agents, of and from any and all claims,
demands, rights, actions and causes of action of whatsoever kind or nature,
whether in law or in equity, known or unknown, which JLH has or claims to have
against NFG, whether know to it or not, including, but not limited to, all
claims arising out of, caused by or in any way related to the management of the
Facilities by JLH, the termination of the Management Agreement and of and from
any and all claims for breach of covenants not to compete, conversion or
proprietary information or trade secrets, breach of fiduciary duty, usurpation
of a corporate opportunity, and tortious interference with contract, and of any
from any and all claims asserted or which may have been asserted by JLH at any
time.
I. The parties acknowledge and agree that the Agreement is the result
of compromise entered into in good faith and shall never, for any purpose, be
considered an admission of liability or responsibility concerning any possible
claim or claims.
SECTION 2. RELEASES AND REPRESENTATIONS CONCERNING INDEBTEDNESS.
A. JLH shall deliver to NFG, on the date of Possession, the following
notes: i) The original Promissory Note, dated June 30, 1996, issued by National
Foundation on Gerontology, Inc. and payable to Just Like Home Management Corp.,
in the principal sum of $252,015.00 with the note and all interest, penalties
and fees satisfied, released or canceled in full; and ii) The original Mortgage
Note, dated June 30, 1996, in the principal sum of $622,500.00 payable to JLH
Series I, Inc. and JLH IV, Inc., with note and all interest, penalties and fees
satisfied, released or canceled in full.
B. JLH shall deliver to NFG, the date of Possession, a general release
signed and sealed by the duly authorized officers of JLH to the effect that any
and all indebtedness including, but not limited to, Promissory Notes, Mortgage
Notes, loans, advances, claims, chattel paper, penalties, interest, fees,
contract liabilities, or any other form of indebtedness of NFG to JLH, or any of
its assignees, has been released and discharged.
SECTION 3. ASSUMPTION OF LIABILITIES.
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A. Liabilities Prior to Termination. JLH shall be responsible, and
indemnify NFG for all bills and obligations incurred in connection with the
management and operation of the Facilities and not incurred in the required day
to day operational needs of NFG. The intent of the parties is that operational
expenses shall be the obligation of NFG. NFG expects that cash balances as of
the date of Possession is in excess of or equal to accounts payable.
B. Liabilities After Termination. NFG shall assume responsibility and
indemnify JLH for all bills and obligations to be incurred in connection with
the management and operation of the Facilities from and after the date of
transfer of Possession with pro-rations to be agreed upon between NFG and JLH
for any amounts owed, the source of which cannot reasonably be identified with
specificity, until after the change in possession takes place. In the event a
pro-ration cannot be agreed upon between the parties, the parties agree to
settle their dispute by arbitration in accordance with Section 12, herein.
SECTION 4. NEWS RELEASE. NFG and JLH agree to jointly release, on or about the
date of Possession, that certain Press Release attached hereto as "Exhibit A".
SECTION 5. APPROVALS. JLH and NFG have hereby executed this Agreement subject
to the approval of their respective Boards of Directors, the resolutions of
which will be completed and submitted to the other within ten (10) days of
execution hereof. In the event of failure of either or both to accept the
Agreement, then this Agreement shall terminate on such date, with no further
obligation or liability to accrue to either party as a result hereof.
SECTION 6. COMMENCEMENT. This Agreement commences on the date signed.
SECTION 7. BINDING EFFECT. This agreement shall be binding upon an inure to the
benefit of the parties and their respective representatives, agents, employees,
officers, directors, successors, heirs and assigns.
SECTION 8. SEVERABILITY. If any of the provisions of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
SECTION 9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SECTION 10. TITLES AND CAPTIONS. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor affect the interpretation of this Agreement.
SECTION 11. ATTORNEY FEES. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is
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agreed that the prevailing party shall be entitled to reasonable attorneys fees
to be fixed by the arbitrator, trial court, and/or appellate court.
SECTION 12. ARBITRATION. If any dispute, difference, or disagreement shall arise
upon or in respect of the Agreement, and the meaning and construction hereof,
every such dispute, difference, and disagreement shall be referred to a single
arbiter agreed upon by the parties, or if no single arbiter can be agreed upon,
an arbiter or arbiters shall be selected in accordance with the rules of the
American Arbitration Association and such dispute, difference, or disagreement
shall be settled by arbitration in accordance with the then prevailing
commercial rules of the American Arbitration Association, and judgment upon the
award rendered by the arbiter may be entered in any Court having jurisdiction
thereof.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
SECTION 14. PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
SECTION 15. FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
SECTION 16. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
SECTION 17. SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person, entity, or circumstance, shall be
held invalid, the remainder of this Agreement, or the application of such
provision to persons, entities, or circumstances other than those as to which it
is held invalid, shall not be effected thereby.
SECTION 18. CONFIDENTIALITY. Except as expressly set forth herein, or as
required by law, neither party to this Agreement shall release any announcement
or provide any information concerning this Agreement or any transaction
contemplated hereby for a period of twelve (12) months.
SECTION 19. USE OF JLH NAME. As of the date of Possession, NFG will cease using
the name Just Like Home, Inc. (R), at or about the Facilities or in any manner
with regard to the use or operation of the Facilities. All signage and other
reference to the JLH corporate name and logo will be physically removed from the
premises of the Facilities. Additionally, any continuing accounts for utilities,
supplies, or other applicable services in the name of JLH shall be renamed to
reflect NFG or its designee.
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IN WITNESS WHEREOF, NFG and JLH have caused this Agreement to be
executed as of the date first written above.
NATIONAL FOUNDATION ON GERENTOLOGY, INC.
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President
(Seal) Attest:
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Secretary
JUST LIKE HOME, INC.
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President
(Seal) Attest:
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Secretary
JLH Management Corp.
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President
(Seal) Attest:
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Secretary
JLH Series I, Inc.
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President
(Seal) Attest:
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Secretary
JLH IV, Inc.
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President
(Seal) Attest:
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Secretary
