MANAGEMENT AND MARKETING AGREEMENT

Exhibit 10.7.1

CGI MANAGEMENT, INC.
SENIOR LIVING S SPECIALISTS

Sunnybrook Estates Retirement Community
Management and Marketing Agreement
 
 

MANAGEMENT AND MARKETING AGREEMENT

     THIS MANAGEMENT AND MARKETING AGREEMENT is made and entered into this 30th day of August, 1995 by and between Sunnybrook Estates, Inc. and/or Assigns (hereinafter referred to as “Owner” ), and CGI Management, Inc., a Delaware corporation, Fort Worth, Texas, (hereinafter referred to as “Manager”).

     WHEREAS, Owner is building a certain retirement housing community, hereinafter referred to as “Community’’ at Madison, Mississippi, and

     WHEREAS, Owner desires to engage Manager, by this Agreement, to provide management services to operate the Community, and

     WHEREAS, Manager is engaged in the business of developing, constructing, managing, and marketing retirement housing communities and in providing the related management services for retirement housing communities.

     NOW, THEREFORE, in consideration of their mutual covenants herein contained, Owner hereby engages Manager to perform the duties and to provide the services hereinafter described, and Manager does hereby accept such engagement on the terms and conditions hereinafter set forth.

SECTION ONE

reports shall be furnished to Owner no later than the close of business on the 15th day of the calendar month next following the month for which the report is being made. Owner shall at all times be entitled to audit all books and records pertaining to the Community.

SECTION TWO
MANAGEMENT SERVICES

     Management Services to be provided shall include the following specific activities which shall be performed by Manager within the guidelines established by Owner.

SECTION THREE

            3.1   Management and Marketing Fee. Owner shall pay Manager a management fee hereunder an amount equal to $3,000 per month plus out-of-pocket expenses for ongoing pre-marketing and management efforts during the construction period, beginning the first month

after the closing of the financing or the onset of construction, whichever occurs first. Thereafter, beginning ninety (90) days prior to the anticipated grand opening, the base fee will escalate to $4,500 per month plus out-of-pocket expenses. Upon achieving eighty percent (80%) occupancy of the Retirement Housing Community for two consecutive months, the fee will escalate to $6,000 per month or five and one-half percent (5 1/2%) of Monthly Gross Revenue, whichever is greater, plus out-of-pocket expenses. Such fee shall be paid each month, payable on or before the 10th day of each month for the preceding month.

     3.2 Inadvertent Non-Performance. Manager shall not be deemed to be in violation of this Agreement if it is prevented from performing any of its obligations hereunder for any reason beyond it control, including without limitation, acts of God, fire, the elements, flood, strikes, limitations of Community’s financial resources, or statutory regulations or rules of the federal, state, or local government or any agency thereof.

SECTION FOUR MISCELLANEOUS

     4.1 Term.

     A. The primary Term of this Agreement shall be for a period of five (5) years commencing on the date the Agreement is executed and shall automatically be extended for successive additional terms of five (5) years unless terminated as is hereinafter provided.

     B. This Agreement may be terminated with or without cause upon thirty (30) days’ prior written notice by either party. If termination is initiated by Owner and determined to be without cause, the balance of the Term will be fully paid in accordance with Paragraph 3.1 of this Agreement and at the fee level being paid at the time of termination.

     4.2 Notices. Any notice or other communications by either party to the other shall be in writing and shall be given and deemed to have been given, if either delivered personally or mailed postage prepaid, registered or certified mail addressed as follow:

     4.3 Modification and Changes. This Agreement cannot be changed or modified except by other Agreements in writing and duly executed by both parties.

     4.4 Manager as Independent Contractor. It is expressly agreed by both parties hereto that Manager’s at all times hereunder acting and performing as an Independent Contractor and that no act, commission or omission of either party hereto shall be construed to make or render the other party its agent, joint venturer, or associate, except to the extent specified herein.

     4.5 Authority of Manager. Manager represents to Owner that Manager is fully qualified to manage and perform all obligations under this Agreement.

     4.6 Construction of Agreement. In the event one or more of the provisions contained in the Agreement shall be invalid, illegal, or unenforceable in any respect under applicable law, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be impaired thereby.

     4.7 Complete Agreement This Agreement contains the complete agreement between the Owner and TCG, and no verbal agreements or representations not included herein will be binding or enforceable.

     4.8 Headings. The headings contained herein are for reference only and are not intended to define, limit, or describe the scope or intent of any provision of the Agreement.

     4.9 Governing Law. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Mississippi.

     4.10 Successors and Assigns. This Agreement may not be assigned by Manager without the expressed written consent of Owner.

     4.11 Binding Effect This Agreement shall be binding upon and shall inure to the benefit off the respective heirs, successors, and assigns of the parties hereto.

     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the 20th day of August, 1995.