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Exhibit 10.3
FORM OF INTERIM MANAGEMENT AGREEMENT
[ ]
THIS INTERIM MANAGEMENT AGREEMENT ("Agreement") is made as of January 12,
2001 between BALANCED CARE AT [ ], INC., a Delaware corporation (the
"Management Firm") and NATIONWIDE HEALTH PROPERTIES, INC., a Maryland
corporation, (the "Owner").
W I T N E S S E T H
WHEREAS, Elder Care Operators of [ ], LLC, a Delaware limited
liability company, as Tenant ("Tenant"), and Owner, as Landlord, entered into
that certain Master Lease and Security Agreement (Cumberland) dated as of July
1, 2000 (the "Lease");
WHEREAS, pursuant to the terms of the Lease, Tenant leased from Owner the
real property, improvements thereon and appurtenances thereto commonly known as
Outlook Pointe at [ ], located at [ ] (the "Facility");
WHEREAS, Tenant leased the Facility for operation, and caused the Manager
to operate the Facility, as a personal care/assisted living facility (as so
utilized, an "ALF") in the manner described in the Lease;
WHEREAS, Tenant defaulted, and an Event of Default arose, under the Lease;
WHEREAS, Owner and Tenant, among others, have entered into that certain
Master Termination and Release Agreement of even date herewith (the "Termination
Agreement") pursuant to which, among other things, the Lease was terminated and
the Facility leased thereunder by Tenant from Owner were surrendered to Owner;
WHEREAS, Management Firm and Owner, among others, have entered into that
certain Master Transfer Operations Agreement (the "Transfer Agreement");
WHEREAS, Management Firm is an Affiliate (as defined below) of Balanced
Care Corporation, a Delaware corporation ("BCC");
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WHEREAS, Management Firm holds the healthcare licenses necessary for the
lawful operation of the Facility as an ALF; and
WHEREAS, in order for Owner to make alternative arrangements for the
operation and management of the Facility and to effect the transfer of the
healthcare license required in connection therewith, Owner and Management Firm
desire that Management Firm shall manage the Facility for Owner on an interim
basis on the terms and conditions more particularly described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals (which by this
reference are incorporated herein), and for other 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 operator and manager of the
Facility during the term of this Agreement. Subject to the obligations of Owner
as provided in Section 10, the other terms and provisions of this Agreement, and
the express limitations on such responsibility and authority set forth herein,
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 without limitation to:
(i) operate and maintain the Facility as an ALF in accordance with prudent and
customary practice and industry standards and licensed for the number of beds or
units existing on the date hereof; (ii) collect all room and board revenue, as
well as other revenue, and pay prior to the imposition of any fine or penalty
all debts and other obligations relating to the Facility, including fixed
expenses and taxes; (iii) ensure the Facility and Management Firm comply with
applicable Federal, state and local laws and regulations including all
healthcare licensing laws applicable to the operation of an ALF; (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) open and maintain such bank
accounts as may be necessary or desirable for the operation of the Facility (the
"Operating Accounts"), which, together with all funds on deposit therein from
time to time, at all times shall be and remain the sole property of Owner, and
open and
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maintain an account solely in Management Firm's own name from which all payments
with respect to Pass-Through Employee Liabilities (as defined below) shall be
made (the "Payroll Account"); (vii) establish salary levels, performance
standards, personnel policies and employee benefits for the Management Firm's
employees; and (viii) to take all other actions necessary or desirable to
operate and manage the Facility in accordance with prudent practice and industry
standards. Owner hereby grants to Management Firm a license during the term of
this Agreement for the right to occupy the Facility for purposes of performing
its obligations hereunder.
Management Firm and Owner acknowledge that, notwithstanding anything to the
contrary contained herein, Management Firm shall have the ultimate
responsibility for the operation of the Facility, including the final authority
to make or control operational decisions and legal responsibility for the
business management of the Facility.
A budget for the operation of the Facility is attached hereto as Exhibit A
(the "Budget"). Management Firm shall perform its duties hereunder, and make
expenditures in connection with the management of the Facility consistent with
the cumulative Budget.
Management Firm, at the direction of Owner, shall distribute to Owner from
the Operating Accounts any Federal, state or local income or sales tax due by
Owner in connection with revenue derived exclusively from the Facility.
Management Firm shall make such distributions as necessary to itself from the
Operating Accounts to pay any Federal, state or local income or sales taxes due
by Management Firm as a result of earnings of Owner in connection with the
Facility, provided that Management Firm shall be responsible for, and shall not
be entitled to any such distributions in connection with, the payment of any
Federal, state or local income or sales taxes due by Management Firm as a result
of its earnings under this Agreement.
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 any other matters reasonably related thereto
commencing upon the date of this Agreement:
(a) Management Information Systems (MIS)
Support centralized Facility information system which provides systems
management for the following areas:
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-- Accounts Payable
-- Payroll
-- Financial Reporting
-- Marketing administered at the Facility
-- 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; and (v)
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 allocable to the Facility.
(c) Accounting/Tax
(i) Provide an accountant to supervise all accounting activities; (ii)
implement accounting policies and guidelines; (iii) provide a cash
management system; (iv) deposit in Operating Accounts established in the
Facility's name all funds received from the operations of the Facility,
satisfy obligations of the Facility from such Operating Accounts (provided
that all Pass-Through Employee Liabilities shall be satisfied solely from
the Payroll Account), not commingle funds in the Operating Accounts with
any other funds and, within ten (10) days of the date of this Agreement,
cause Owner to have signing
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authority for all matters on such Operating Accounts; (v) supervise the
Facility's internal control structure; (vi) provide payroll, income and
real estate tax support as follows: prepare or supervise preparation of all
payroll 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) provide operations expertise through site visits and
strategies to maximize fiscal performance; and (ix) propose, develop and
implement revisions to the Budget for appropriate 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 Owner; provided that checks and other withdrawal documents for
withdrawal of funds from the Payroll Account shall be signed solely by
Management Firm. Deposits may be made by the appropriate officer of the
Management Firm or Owner.
(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, to the extent
applicable, all employee benefit plans including health insurance, dental
insurance, life insurance, long-term disability insurance (for the
community director only), 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
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control programs; (ix) recruit, employ and train personnel as needed for
the operation of all departments and services of the Facility; and (x)
establish salary levels, performance standards, personnel policies and
employee benefits for all employees within applicable budgetary and
regulatory limits. All employees at the Facility, including without
limitation the community director and the community marketing coordinator,
shall at all times during the term of this Agreement remain the employees
of the Management Firm. Notwithstanding the foregoing, all Pass-Through
Employee Liabilities (as defined in the Transfer Agreement) shall be an
operating expense of the Facility to be paid from the Payroll Account,
which shall be funded from the Operating Accounts in accordance with the
terms hereof, including without limitation Section 10.
(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. A community
director shall be engaged by the Management Firm for the Facility.
(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.
(g) Marketing/Communication
(i) Hire, direct and supervise marketing department staff; (ii) train staff
(program managers, rehabilitation liaisons, marketing representatives,
etc.) in marketing skills; (iii) maintain strong sales efforts within the
target area; (iv) establish an intake/admission
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system and continuously review the admission process; (v) maintain image
building advertising strategies for the Facility; and (vi) maintain and
produce Facility selected promotional literature.
(h) Contracting
Negotiate and enter into contracts and agreements related to the Facility
with third parties and parties affiliated with the Management Firm;
provided that all contracts and agreements (i) with third parties shall be
on market terms and no less favorable to Owner than similar contracts or
agreements entered into by Affiliates of Management Firm in connection with
the operation of other similar healthcare facilities, and (ii) with parties
affiliated with the Management Firm shall be on terms no less favorable to
Owner than terms for comparable contracts and agreements with unaffiliated
parties. As used in this Agreement, "Affiliate" shall mean with respect to
any person or entity, any other person or entity which controls, is
controlled by or is under common control with the first person or entity.
(i) Insurance
Cause to be obtained and maintained in full force and effect for itself and
the Facility the types, coverages and amounts of insurance set forth on
Exhibit B, and such other insurance as Management Firm may believe to be
prudent and customary.
(j) Miscellaneous
(1) Provide prompt notice to Owner of an occurrence at the Facility that
could materially adversely affect, financially or otherwise, Owner or the
Facility, including without limitation, the occurrence of any material
damage or casualty to the Facility, any filed or threatened litigation
concerning the Facility or activities conducted thereat and any incidents
affecting the health or safety of the residents or any single resident of
the Facility.
(2) Provide to Owner promptly after receipt
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thereof by Management Firm a copy of any inspection or other report or
survey prepared or issued by any regulatory agency.
(3) Obtain and maintain in accordance with all applicable 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 laws and
regulations in connection with the operation of the Facility.
(4) Subject to the provisions of Section 1(h), at the Owner's cost and
expense, purchase supplies, using procurement practices in accordance with
industry standards, and purchase or 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 become property of the Owner. Once leases are
completed, equipment shall become property of the Owner.
(5) Subject to the provisions of Section 1(h), review and analyze the
performance of ancillary services under contract and negotiate contractual
arrangements therefor.
(6) Maintain books and records for the Facility at the Management Firm's
address herein (except for the financial books and records that are
maintained at BCC's corporate headquarters) for the purpose of providing
services under this Agreement. The Management Firm shall make available to
the Owner and any entity designated by the Owner, 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 designee with
respect to such books and records and
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shall confer with the Owner and any such designee at all reasonable times,
upon request, concerning the operation of the Facility.
(7) Order, supervise and conduct a program of regular maintenance and
repair of the Facility at the Owner's cost and expense, such that the
Facility is maintained in a condition that complies with the terms of this
Agreement.
(8) Supervise and provide for the operation of food service facilities for
the Facility.
(9) Make periodic evaluations of the performance of all departments of the
Facility and investigate and report, upon request, any inconsistency
between expenditures and budget.
(10) Implement all policies and procedures reasonably necessary for the
operation of the Facility consistent with applicable regulations.
(11) 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.
(12) Afford Owner, its agents and designees, access to the Facility and all
records related thereto, at all times without prior notice.
(13) Establish dates and procedures by which all accounting matters related
to the operation of the Facility (including income, expenses and accounts
receivable) shall be properly attributed to the periods of operation
before, during, and after the term of this Agreement.
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 the responsibility of Owner
and paid by Management Firm as an operating expense of the Facility. The
Management Firm shall actively utilize staff specialists in its employ or that
of its
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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 employed by Management Firm at
the Facility (but not the expense of personnel employed by any Affiliate of
Management Firm or not employed at the Facility) shall be the responsibility of
Owner, and paid by Management Firm as an operating expense of the Facility.
Notwithstanding anything contained in this Section 2 or any other provision of
this Agreement to the contrary, in no event shall Management Firm be required to
expend its own funds with respect to the Facility, and instead all funds
required for the operation and maintenance of the Facility shall be the
responsibility of Owner as set forth in Section 10.
3. Financial Statements and Reports. The Management Firm shall, at its own cost
and expense, prepare and provide to Owner: (a) within twenty (20) days after the
end of each calendar month, monthly Facility operating reports, including
without limitation census reports, profit and loss statements, accounts payable
aging information, balance sheet, income statement, total patient days and
occupancy; and (b) within such reasonable period as may be specified by Owner,
such additional and further information concerning the Facility as Owner may
reasonably request, which may include without limitation historical financial
information concerning the operation of the Facility prior to the termination of
the Lease. The fiscal year for the Facility shall be the calendar year. All
financial statements are to be prepared in accordance with GAAP.
4. Property Interests/Confidentiality.
(a) The Intangible Property (as defined in the Transfer Agreement)
employed by the Management Firm has been transferred to Owner pursuant to the
Transfer Agreement, shall remain the property of Owner following the termination
of this Agreement, and is not, at any time, to be utilized, distributed, copied
or otherwise employed or acquired by Management Firm except as necessary for the
performance of its obligations under this Agreement, as approved in writing by
Owner or as may be required by law. Management Firm also acknowledges that,
pursuant to that certain License Agreement described in the Transfer Agreement,
certain trade or service names, associated marks and other intellectual
property, including the name "Outlook Pointe," shall be licensed by Management
Firm or Affiliates of Management Firm, as applicable, to Owner for use in the
operation of the Facility in accordance with the
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provisions of such License Agreement.
(b) Management Firm understands and acknowledges that the Intangible
Property has been transferred to Owner pursuant to the Transfer Agreement, and
is proprietary to Owner and the confidential information of Owner (collectively,
the "Confidential Information"). Management Firm shall not disclose to any party
any Confidential Information, without the prior written consent of Owner, except
as may be required by law.
(c) Owner acknowledges that Affiliates of BCC own and employ
methods, policies, procedures and controls and information and materials
substantially similar to, respectively, the Intangible Property and Confidential
Information. Nothing contained in this Agreement shall prohibit the use,
distribution, transfer or sale by BCC and its Affiliates of such matters and
material to any other party.
(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, subject to the provisions of Section 6, shall continue until the
earliest to occur of (a) ninety (90) days after the Effective Date (as defined
in the Transfer Agreement), or (b) at Owner's option, ten (10) days after Owner
has given notice to Management Firm that all licenses necessary for the
operation of the Facility as an ALF have been transferred or issued to Owner or
its designee. Notwithstanding the foregoing, Owner may extend the term of this
Agreement for three (3) consecutive periods of thirty (30) days each by
providing notice thereof to Management Firm at least fifteen (15) business days
prior to the expiration of the then current term.
6. Termination.
(a) Notwithstanding the provisions of Section 5, Owner may terminate
this Agreement upon written notice if 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 ten
(10) days after written notice to Management Firm from Owner stating the
specific default.
(b) Notwithstanding the provisions of Section 5, Management Firm may
terminate this Agreement upon written notice if Owner defaults in the
performance of any material covenant,
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agreement, term or provision of this Agreement to be performed by it, including
without limitation the failure of Owner to comply with any of the provisions of
Section 10, and such default continues for a period of ten (10) days after
written notice to Owner from Management Firm stating the specific default.
(c) Upon the termination of this Agreement, whether pursuant to Section
5 or Section 6, (i) the Facility shall be surrendered to Owner in the manner
required under Section 1 of the Transfer Agreement, (ii) all inventory,
consumable items, and personal property of Management Firm at the Facility shall
be transferred to Owner or its designee without further consideration, (iii) all
contracts and agreements affecting the Facility shall, as directed by Owner, be
either terminated or assigned to Owner or its designee, (iv) all books and
records concerning the Facility and operation thereof (including any books and
records maintained at BCC's corporate headquarters) shall be delivered to Owner
or its designee at the Facility, (v) neither Management Firm nor any Affiliate
thereof shall have any further right, title or interest in or to the Facility,
the Premises, the operation thereof or the income derived therefrom, and (vi)
pursuant to the terms of the Transfer Agreement, Owner, in its sole and absolute
discretion, may, but shall be under no obligation to, hire some or all of the
employees of Management Firm at the Facility, and Management Firm hereby agrees
that it shall reasonably cooperate with such hiring efforts of Owner.
7. Liability and Indemnification/Force Majuere.
(a) By the Management Firm. The Management Firm and BCC shall
indemnify, defend, save and hold harmless the Owner, its members, 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, its members, shareholders, officers,
directors, employees, or agents, in connection with, or arising out of, or
resulting from (i) a breach by the Management Firm of any of its material
covenants, agreements, representations or warranties in this Agreement, or (ii)
the negligent or willful acts or omissions of Management Firm, its employees or
agents during the
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term of this Agreement. 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 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 by Owner of
any of its material covenants, agreements, representations or warranties in this
Agreement, or (ii) the negligent or willful acts or omissions of Owner, its
employees or agents during the term of this Agreement. The provisions of this
Section shall survive the expiration or sooner termination of this Agreement.
(c) 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.
(d) Neither Management Firm nor Owner shall be deemed to be in
violation of this Agreement, and its respective performance shall be excused, if
it is prevented from performing any of its respective obligations hereunder for
any reason beyond its control, including shortages in labor or supplies; war;
acts of God; with respect to Management Firm, the failure of the Owner to
advance funds required hereunder; 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 five percent (5%) of all 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 month. In the event
that this Agreement is terminated as of a date other than the end of calendar
month, the Management Fee for such partial month shall be prorated accordingly.
To the extent that final operating reports or
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financial statements for the Facility produced pursuant to Section 3, or an
independent audit of the financial records of the Facility performed at the
request and expense of Owner within one (1) year of the date of the termination
of this Agreement, disclose that the Management Fee actually received during the
term of this Agreement were greater or less than what should have been received,
Owner (in case of underpayment) shall pay upon demand the shortfall, and
Management Firm (in the case of overpayment) shall repay upon demand the
overage.
10. Funding of Costs and Expenses by the Owner. Notwithstanding any provision
deemed to be to the contrary contained in this Agreement, Owner, and not
Management Firm or any Affiliate of Management Firm, shall be responsible for
all costs and expenses of any kind or nature (whether ordinary or extraordinary)
with respect to the Facility and its operations, except for any such costs or
expenses covered by the indemnity set forth in Section 7(a). Such costs and
expenses shall include, without limitation, all operating costs and expenses,
all costs and expenses for capital improvements desired by Owner and all costs
and expenses associated with assuring that the Facility complies with all laws,
regulations, permits and rules applicable to the Facility. The Owner shall at
all times provide on a timely basis sufficient capital for the operation and
maintenance of the Facility (including without limitation all sums to be
expended in accordance with the Budget) and shall deposit from time to time such
funds in the Operating Accounts of the Facility. Owner shall deposit any funds
required under this Section 10 into the Operating Accounts within five (5) days
of Management Firm's written request therefor, which request shall identify the
uses of such funds; in the event of an emergency requiring the deposit of such
additional funds, Management Firm shall give Owner as much advance notice as
practicable under the circumstances, and Owner shall deposit the required funds
as soon as practicable thereafter.
11. Other Facilities. Owner understands and acknowledges that BCC and Affiliates
thereof are in the business of operating facilities such as the Facility, and
that BCC and Affiliates thereof intend to continue to manage and operate such
other facilities, which facilities may or may not be in competition with the
Facility. Subject to Section 3.c of the Termination Agreement, 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.
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12. Notices; Authorized Representatives of Owner.
(a) 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 and addressed:
(i) If to the Management Firm, at:
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Legal Department
With a copy to Management Firm's counsel, at:
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 412-355-6501
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(ii) If to the Owner, at:
c/o Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Facsimile: 000-000-0000
Attention: General Counsel
With a copy to Owner's counsel, at:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or facsimile number as a party may designate by notice
to the other parties hereto.
(b) Each of the following persons, in addition to such other persons as
may be designated by Owner from time to time, shall be authorized on behalf of
Owner to grant any approval or consent of Owner required under this Agreement:
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R. Xxxxx Xxxxxxx 000-000-0000
Xxxx X. Xxxxxxx 000-000-0000
Xxxxxx X. Xxxxxx 617-928-3077
Xxxx X. Xxxxxxx 000-000-0000
Xxxx X. Xxxxx 000-000-0000
T. Xxxxxx Xxxxxx 000-000-0000
13. 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.
14. Successors and Assigns. This Agreement shall binding upon, and inure to the
benefit of the successors and assigns of Owner and Management Firm. Upon advance
notice to Management Firm, this Agreement is freely assignable and transferable
by Owner, provided that no such assignment or transfer shall limit or terminate
any obligation hereunder binding upon Owner. Management Firm acknowledges and
agrees that this Agreement is in the nature of a personal services contract.
Management Firm may not assign this Agreement (whether as collateral security or
otherwise) expressly, by operation of law (including any assignment in any
bankruptcy proceeding), or otherwise, without the prior written consent of the
Owner, which may granted, denied or conditioned in Owner's sole and absolute
discretion.
15. Non-Competition. The Management Firm acknowledges and agrees that it is
bound by the provisions of Section 3.c of the Termination Agreement.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of California without reference to the
conflict or choice of law provisions thereof.
17. Severability. If any provision of this Agreement is held to be unenforceable
for any reason, all other provisions of this
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Agreement shall be deemed valid and enforceable to the fullest extent possible.
To the fullest extent permitted by law, the parties hereto hereby waive any
provision of law that renders any term or provision of this Agreement invalid or
unenforceable in any respect.
18. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single instrument.
19. Amendments. This Agreement may be modified or amended only by a written
instrument executed by the parties hereto.
20. No Third Parties Benefitted. This Agreement is made and entered into for the
sole benefit of Owner and Management Firm. No other persons or entities are
beneficiaries of, or have any right of action under, the terms and provisions of
this Agreement.
21. Consents and Approvals. Except if expressly provided that Owner may grant,
deny or condition its consent or approval in its sole and absolute discretion,
no approval or consent sought by Management Firm of Owner pursuant to the terms
of this Agreement shall be unreasonably withheld, delayed or conditioned.
[Signature begin next page.]
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Exhibit B - Page 1
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: BALANCED CARE AT [ ], INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
OWNER: NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
By:/s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
BCC: FOR PURPOSES OF SECTION 7(a) ONLY:
BALANCED CARE CORPORATION,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Legal
Counsel and Assistant
Secretary
Exhibit B - Page 1
