EXHIBIT 4
MASTER MANAGEMENT SERVICES AGREEMENT
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This Master Management Services Agreement ("Agreement") is made as of
September 30, 1997 (the "Effective Date"), between ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇, d/b/a G.W.E. Partnership, with offices located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (collectively, "Operators")
and Senior Quarters Management Corp., a New York corporation (the "Manager").
WHEREAS, Operators are the licensed operators of the facilities
described in Exhibit A attached hereto and incorporated herein by this
reference (collectively, the "Facilities");
WHEREAS, Manager is financially stable and qualified in the field of
managing adult-care facilities such as the Facilities, and Operators desire to
engage Manager to provide services in connection with the operation of the
Facilities, pursuant to Operators' supervision and direction, on the terms and
subject to the conditions set forth in this Agreement;
WHEREAS, Manager is willing to provide such services, on the terms and
subject to the conditions set forth in this Agreement, commencing with the
Effective Time of the merger of Prometheus Acquisition Corp. with and into
Kapson Senior Quarters Corp. (the "Company") as defined in that certain
Agreement and Plan of Merger dated as of the Effective Date among Prometheus
Senior Quarters LLC, Prometheus Acquisition Corp. and Company.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties do hereby agree as
follows:
I. RESPONSIBILITIES OF OPERATORS.
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A. Operators hereby engage Manager to provide management and
consulting services to the Facilities, and Manager hereby accepts such
engagement and agrees to provide such services for the compensation set forth
in Section VII, upon the terms and conditions set forth in this Agreement.
During the term of this Agreement, Manager shall provide the services set forth
below, all of which shall be subject to the supervision and review of
Operators, it being understood and agreed, however, that notwithstanding any
other provision of this Agreement, Operators remain responsible for operation
of the Facilities in accordance with applicable law and regulations.
Consequently, Operators shall retain the right, power and authority to (1)
issue such directives to Manager as are required by or appropriate under
applicable law and regulations with respect to services of Manager, and (2)
establish such policies and
procedures as are required by or appropriate under applicable law and
regulations with respect to any or all of the matters covered by this Agreement;
all such directives and policies shall be binding upon, and complied with by
Manager.
a. OPERATIONAL POLICIES AND FORMS. Subject to the review by the
Operator pursuant to those certain Operating Agreements described in Exhibit A
attached hereto and incorporated herein by this reference (the "Operating
Agreements"), and the Annual Budgets (as defined in the Operating Agreements),
Manager shall establish and implement appropriate operational policies and
procedures, and shall develop such new policies and procedures as it may deem
necessary to insure the establishment and maintenance of operational standards
appropriate for the nature of the Facilities.
b. CHARGES. Manager shall prepare on behalf of Operators schedules
of charges, including any and all special charges for services rendered at the
Facilities.
c. INFORMATION. Manager shall develop any informational material,
mass media releases, and other related publicity materials that it deems
necessary for the operation of the Facilities.
d. REGULATORY COMPLIANCE. Manager shall use its reasonable best
efforts to assist Operators in maintaining all licenses, permits, qualifications
and approvals from any applicable governmental or regulatory authority required
for the operation of the Facilities, to operate the Facilities in compliance
with applicable laws and regulations, and to comply with such laws and
regulations in performing Manager's obligations under this Agreement. In
addition, Manager shall provide all information required by applicable
governmental agencies, and shall cooperate with governmental inspection and
enforcement activities. Manager shall comply with all applicable provisions of
law and regulations. Notwithstanding the provisions herein requiring Manager to
comply with applicable law, Operators remain responsible for the operation of
the Facilities in compliance with such applicable law and regulations.
e. EQUIPMENT AND IMPROVEMENTS. Subject to the Annual Budgets,
Manager shall recommend, and, if approved by Operators, acquire or effect, on
behalf of an owner of the applicable Facility (an "Owner"), the equipment and
improvements that it determines are needed to maintain or upgrade the quality,
to replace obsolete or rundown equipment, or to correct any other survey
deficiencies which may be cited during the term of this Agreement. Manager shall
make all such repairs and maintenance approved by Operators in a workmanlike and
lien-free manner.
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f. ACCOUNTING. Manager shall arrange for and supervise accounting
support to the Facilities, including the following:
(1) A monthly balance sheet and statement of operations
for each Facility, to be submitted to its Owner within thirty (30) days after
the end of each calendar month;
(2) Resident billing records;
(3) Accounts receivable and collection records;
(4) Accounts payable records;
(5) All payroll functions, including, preparation of
payroll checks, establishment of depository accounts for withholding taxes,
payment of such taxes, filing of payroll reports and the issuance of W-2 forms
to all employees;
(6) A complete general ledger for the purposes of
recording and summarizing all transactions for each Facility;
g. Manager shall prepare and file all necessary reports as
required by applicable governmental authorities and simultaneously provide a
copy to the Operators.
h. Manager shall be responsible for preparation and delivery of
all reports required to be delivered to any lenders at the time and in the
manner required by such lenders.
All accounting procedures and systems utilized in providing said support shall
be in accordance with the operating capital and cash programs developed or put
in place by an Owner or developed by Operators. Upon Manager's recommendation,
Operators may determine to engage a third party (in addition to Manager) to
assist it in the performance of the accounting duties provided for herein.
i. REPORTS. Manager shall prepare and provide to Operators any
information that is required to be furnished by Operators to an Owner under the
Operating Agreements and any other reasonable operational information which may
from time to time be specifically requested by Operators, including any
information needed to assist Operators in completing their tax returns and in
complying with any reporting obligations imposed by any regulatory agencies or
mortgages or lessors of the Facilities. In addition: (1) within thirty (30) days
after the end of each calendar month, Manager shall provide Operators and the
applicable Owner with an unaudited balance sheet of the Facilities, dated the
last day of such month, and an unaudited statement of income and expenses for
such month relating to the operation of each Facility and (2) within ninety (90)
days after
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the end of the fiscal year of each Facility, Manager shall provide Operators and
the applicable Owner with unaudited financial statements including a balance
sheet of such Facility dated the last day of said fiscal year and a statement of
income and expense for the year ended relating to the operation of such
Facility. In addition, Manager shall prepare and send to Operators and the
applicable Owner monthly occupancy reports and related information with respect
to each Facility. All books, records, forms and reports of the Facilities in
connection with operation of the Facilities shall be Operators' property,
provided, however that Manager may retain copies of all books, forms and records
(of the Facilities and not the residents) Operators maintain for the files of
Manager.
j. BANK ACCOUNTS. Manager shall establish and maintain necessary
bank accounts and shall deposit therein all money received during the term of
this Agreement in the course of the operation of each Facility, and shall make
such withdrawals and payments from such accounts as are necessary and
appropriate to fulfill the responsibilities described in this Agreement.
Operator shall be given notice as to the identity of authorized signatories. All
expenses incurred in the operation of the Facilities shall be paid in accordance
with the Operating Agreements.
k. PERSONNEL. Manager shall recruit, hire, train, promote,
direct, discipline and fire, if necessary, all Facility personnel, including the
Administrator and Program Coordinator, if any, of the Facilities, establish
salary levels, personnel policies and employee benefits; and establish employee
performance standards, all as Manager determines to be necessary or desirable
during the term of this Agreement to ensure the efficient operation of all
departments within, and all services offered by the Facilities. All of the
foregoing obligations shall be undertaken in accordance with the Annual Budget,
Operators' authority and control, and applicable law and regulations. All of the
personnel of each Facility shall be the employees of the Owner of such Facility,
unless otherwise agreed by the applicable Owner and Operators (and Manager if
such personnel shall be employees of Manager), and all salary, bonuses, fringe
benefits, payroll taxes and related expenses payable to or in respect of the
Facility's personnel shall be expenses of the respective Facilities.
Notwithstanding the above, the Operators shall retain the authority to discharge
any person working in a Facility.
l. SUPPLIES AND EQUIPMENT. Manager shall purchase supplies and
non-capital equipment needed to operate the Facilities within the budgetary
limits set forth in the Annual Budget. In purchasing said supplies and
equipment, if possible, Manager shall take advantage of any national or group
purchasing
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agreements to which Manager or Operators or any of their affiliates may be a
party.
m. LEGAL PROCEEDINGS. Manager shall monitor and, pursuant to
Owner's direction, act with respect to, all legal matters and proceedings that
are within the scope of Manager's authority pursuant to this Agreement,
including without limitation, any necessary legal actions or proceedings to
collect obligations owing to the Facilities, the cancellation or termination of
any contract or agreement for breach thereof or default thereunder, and other
actions necessary to enforce the rights and obligations of the residents,
sponsors, licensees, customers and other users for the Facilities. Manager shall
give notice promptly to Owner and Operators of all demands, claims and all legal
actions.
n. ANNUAL BUDGETS. PREPARATION. Manager shall timely prepare and
deliver to Operators for their review and submission to the applicable Owner
proposed annual budgets ("Annual Budget(s)") for each Facility. Such proposed
Annual Budgets shall be prepared in accordance with the Operating Agreements.
Manager and Operators acknowledge that (x) projected revenue may not be actually
received and (y) projected costs may be exceeded by actual expenses and capital
expenditures incurred in connection with the operation and maintenance of the
Facilities. By submitting such a projected Annual Budget, Manager will not be
deemed to be providing a guarantee or warranty as to the projected revenue,
expenses or capital expenditures of the Facilities.
o. COLLECTION OF ACCOUNTS. Manager shall issue bills and collect
accounts and monies for goods and services furnished by each Facility,
including, but not limited to, enforcing the rights of Operators, any Owner and
the Facilities as creditor under any contract or in connection with the
rendering of any services. Any actions taken by Manager to collect said accounts
receivable shall be in accordance with the applicable laws, rules and
regulations governing the collection of accounts receivable.
p. CONTRACTS. Manager shall negotiate, prepare for execution,
cancel or terminate agreements and contracts as Operators deems necessary or
advisable for the operation of each Facility, including, without limitation, the
furnishing of concessions, supplies, utilities, extermination, refuse removal
and other services. Manager shall be entitled to utilize any entities affiliated
with Manager to provide these services, provided that the rates and prices
therefor, are competitive.
B. EXCLUSIVE REPRESENTATIVE. Operators hereby designate Manager
to be the exclusive representative of each Owner for purposes of communicating
and dealing directly with the regulatory authorities, governmental agencies,
employees, independent contractors, suppliers, residents, sponsors,
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licensees, customers and guests of each Facility, unless Operators are required
by law to serve such function. Any communications from an Owner to such persons
or entities or authorities shall be directed through Manager, unless Operators
are required by law to serve such function. Each Owner may maintain contact and
working relationships with the abovementioned persons and entities.
II. INSURANCE. Manager shall arrange for and maintain all necessary and
proper hazard insurance covering each Facility, including the furniture,
fixtures and equipment situated thereon, all necessary and proper malpractice
and public liability insurance for Manager's, Operators' and Owners' protection
and for the protection of Manager's, Operators' and Owners' officers, partners,
agents and the personnel of the Facilities. Subject to the prior written
approval of Operators, Manager shall also arrange for and maintain all employee
health and worker's compensation insurance for the personnel of the Facilities.
Any insurance provided pursuant to this paragraph shall comply with the
requirements of any applicable Facility mortgage or lease and, with the
exception of the insurance maintained by Manager for its own protection, shall
be an expense of the Facilities.
III. CONFIDENTIAL MATERIALS. Operators hereby provide an exclusive,
irrevocable license to Manager to use the systems, methods, procedures and
controls employed by Operators on behalf of each Owner and any written materials
or brochures developed to document the same. Notwithstanding the foregoing,
Manager shall use reasonable best efforts to keep such systems, methods,
procedures and controls confidential and to prevent them from being utilized,
distributed, copied or otherwise employed or acquired, except on behalf of an
Owner or its affiliates.
IV. TERM OF AGREEMENT; EFFECT OF TERMINATION. The term of this Agreement
shall commence on the Effective Date and shall terminate on the fifth (5th)
anniversary of the Effective Date, unless sooner terminated as hereinafter
provided. This Agreement may be terminated: (i) in accordance with Section V,
(ii) by Manager upon the death or continuing disability of all of the Operators,
or (iii) by the Manager by giving at least thirty (30) days' prior written
notice to Operators at any time after the occurrence of a Change in Control of
an Owner. Upon any termination of this Agreement other than pursuant to Section
V, the parties hereto shall have no further obligations or liabilities hereunder
except for the respective right of Manager or its representatives, estates,
successors or assigns to receive fees through the date of termination, and
except that upon the expiration or earlier termination of this Agreement for any
reason, the parties shall cooperate (at the applicable Owner's expense) to
minimize the impact of the change on the residents. To the extent that Manager
provides management services to Operators hereunder in connection therewith,
Manager shall be
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entitled to receive fees in accordance with Section VII hereof. For purposes of
this Agreement, "disability" shall mean the inability to provide services
hereunder due to illness, injury or other medical reasons for a period of more
than one hundred eighty (180) consecutive days, and a "Change in Control" of an
Owner shall be deemed to have occurred if any person or group (within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act") or any successor provision) shall acquire beneficial ownership
(determined in accordance with Rule 13d-3 promulgated under the Exchange Act or
any successor provision) of securities of such Owner representing both: (i) at
least 30% of the total outstanding voting power of securities of an Owner
entitled to vote for the election of directors of such Owner and (ii) a greater
percentage of such voting power than is owned at such time in the aggregate by
Manager and its affiliates.
V. EVENTS OF DEFAULT AND REMEDIES.
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A. DEFAULT. Each of the following shall constitute an Event of
Default hereunder:
1. If either Manager, on the one hand, or the Operators,
collectively, on the other, fail to perform in any material respect any term,
provision, or covenant of this Agreement and such failure (i) continues after
written notice from the other party or parties specifying such failure to
perform for a period of thirty (30) days unless such failure cannot reasonably
be cured within such 30-day period, (ii) the defaulting party fails to endeavor
vigorously and continuously to cure such default as promptly as is practicable;
it being understood and agreed that Operators' obligations under this Agreement
may be performed by one or more of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇,
and that performance of such obligations by one or more of such individuals
shall constitute performance by the Operators.
2. If an Event of Default shall be committed or suffered by
Manager under any other agreement (as defined therein) pursuant to which Manager
provides management services for any adult-care facility (whether or not owned
by an Owner) for which Operators act as the licensed operators.
3. If Manager is dissolved or liquidated, applies for or consents
to the appointment of a receiver, trustee or liquidator of all or a substantial
part of its assets, files a voluntary petition in bankruptcy or is the subject
of an involuntary bankruptcy filing, makes a general assignment for the benefit
of creditors, or files a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law, or if an
order, judgment or decree shall be entered by any court of competent
jurisdiction, on the
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application of a creditor, adjudicating Manager bankrupt or insolvent or
approving a petition seeking reorganization of Manager or appointing a receiver,
trustee or liquidator for such party of all or a substantial part of its assets,
and such order, judgment or decree shall continue unstayed and in effect for any
period of sixty (60) consecutive days.
B. REMEDIES. At any time after the occurrence and during the
continuance of an Event of Default, the party who has not committed or suffered
the Event of Default (with any Event of Default of an Owner being deemed to be
an Event of Default by Operators for this purpose) may, at its option, terminate
this Agreement by giving written notice to the other party and shall be entitled
to exercise all rights and remedies available under applicable law.
VI. FACILITY OPERATIONS.
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A. STANDARD OF PERFORMANCE; ACTING WITHIN BUDGET. In
performing its obligations under this Agreement, Manager shall use its
reasonable best efforts and act in good faith and with professionalism in
accordance with the Annual Budgets and the prevailing standards of the
adult-care facilities industry in each area in which a Facility is located and
in accordance with applicable law.
B. FORCE MAJEURE. The parties will not be deemed to be in
violation of this Agreement if they are prevented from performing any of their
respective obligations hereunder for any reason beyond their control, including,
without limitation, strikes, shortages, war, acts of God, or any statute,
regulation or rule or action of a federal, state or local government or an
agency thereof.
VII. FEES.
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Commencing on the later of the day the Facility begins admitting
residents for occupancy or on the Effective Time, Operators shall pay Manager a
management fee ("Management Fee"), equal to Four Thousand Dollars ($4,000)
per month, payable monthly on the fifteenth (15th) day of each month.
VIII. ASSIGNMENT; DELEGATION.
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A. MANAGEMENT SERVICES AGREEMENT. This Agreement shall not be
assigned (including by operation of law, whether by merger or consolidation
(excluding a merger effected solely for the purpose of changing Manager's
jurisdiction of incorporation that does not affect the stock ownership of
Manager in any material respect) or otherwise) by Manager, on the one hand, or
by any of the Operators,on the other, without the prior written consent of the
other party or parties.
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B. DELEGATION. Notwithstanding any other provision of this
Agreement to the contrary, Operators hereby delegate to Manager only those
powers, duties or responsibilities set forth herein. All other powers and duties
remain with the Operators.The Manager shall not exercise any powers, duties or
responsibilities that it is prohibited by applicable law or regulations from
exercising.
IX. NOTICES. All notices required or permitted hereunder shall in
writing by hand delivery, by registered or certified mail, postage prepaid, by
overnight delivery or by facsimile transmission (with receipt confirmed with the
recipient). Notices given by Operators may be signed by any of the Operators.
Notices shall be delivered or mailed to the parties at the addresses specified
below or at such other places as either party shall designate in writing:
To Operators: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Manager: Senior Quarters Management Corp.
c/o Lazard Freres Real Estate
Investors L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇▇ ▇. Mechanic, Esq.
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
X. RELATIONSHIP OF THE PARTIES. The relationship of
Manager to Operators in connection with this Agreement shall be
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that of an independent contractor and all acts performed by Manager during the
term hereof shall be deemed to be performed in its capacity as an independent
contractor. To the fullest extent permitted under applicable law, the Operators
shall not be deemed to have any fiduciary duties to Manager or its stockholders
in connection with Managers' provision of services hereunder or any matters
arising out of or related thereto. Nothing contained in this Agreement is
intended to or shall be construed to give rise or create a partnership or joint
venture or lease between Manager, its successors and assigns on the one hand,
and Operators and their assigns on the other hand.
XI. ENTIRE AGREEMENT. As of the Effective Time, this Agreement and any
documents executed in connection herewith shall supersede all previous
management services agreements between the parties and relating to the
Facilities, contain the entire agreement among the parties and be binding upon
the respective successors and assigns of the parties, provided however that any
successor or successors of the Operators shall be approved in advance by an
Owner under the terms of the Operating Agreement applicable to such Owner. This
Agreement shall be construed in accordance with the laws of the State of New
York (without regard to the State of New York choice of law provisions). This
Agreement may not be modified or amended except by written instrument signed by
the parties hereto.
XII. CAPTIONS. The captions used herein are for convenience of reference
only and shall not be construed in any manner to limit or modify any of the
terms hereof.
XIII. SEVERABILITY. In the event one or more of the provisions contained
in this Agreement is deemed to 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.
XIV. CUMULATIVE. NO WAIVER. No right or remedy herein conferred upon or
reserved to any of the parties hereto is intended to be exclusive of any other
right or remedy, and each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder, or now or hereafter
legally existing upon the occurrence of an Event of Default hereunder. The
failure of any party hereto to insist at any time upon the strict observance or
performance of any of the provisions of this Agreement or to exercise any right
or remedy as provided in this Agreement shall not impair any such right or
remedy or be construed as a waiver or relinquishment thereof with respect to
subsequent defaults. Every right and remedy given by this Agreement to the
respective parties hereto may be exercised from time to time and as often as may
be deemed expedient by such parties.
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XV. PROSPECTIVE LEGAL EVENTS. CONTRACT MODIFICATIONS FOR
PROSPECTIVE LEGAL EVENTS.
A. The parties hereto agree that in the event that applicable regulatory
agencies request modifications to the text hereof prior to the Effective Time,
the parties shall work in good faith to make modifications to this Agreement or
to cooperate in restructuring their relationship as appropriate, provided that
any such restructuring shall, to the maximum extent possible, preserve the
underlying economic, financial and general business arrangements between Owner
and Operators. The parties acknowledge that such agencies may require either or
both parties to obtain appropriate regulatory licenses and approvals.
B. In the event any state or federal laws or regulations, now existing or
enacted or promulgated after the Effective Date, are interpreted by judicial
decision, a regulatory agency or legal counsel of either party in such a manner
as to indicate that the structure of this Agreement may be in violation of such
laws or regulations, Manager and Operators shall use reasonable best efforts to
amend this Agreement, to the maximum extent possible, to preserve the underlying
economic and financial arrangements between Manager and Operators. The parties
acknowledge that such amendment may require reorganization of Manager or
Operators, or both, and may require either or both parties to obtain appropriate
regulatory licenses and approvals.
XVI. COSTS AND EXPENSES OF FACILITY: INDEMNITY. All fees, costs,
expenses and purchases arising out of, relating to, or incurred in the operation
of the Facility, shall be the sole responsibility of Owner. Operators, by reason
of the execution of this Agreement and the performance of their services to the
Facility, 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 Owner
whatsoever, arising out of or relating to the Facility or incurred in its
operation. Manager agrees to indemnify, defend, pay on behalf of, and hold
Operators and their officers, directors, agents and employees harmless from and
against all losses, claims, damages and other liabilities arising out of the
operation of the Facility (except those resulting from the willful misconduct,
misappropriation of funds, fraud or gross negligence of Operators), including,
without limitation, any liabilities asserted against Manager or any of its
officers, directors, agents and employees by reason of any action or inaction
taken by any of the foregoing while performing the duties of Manager hereunder.
The terms of this Section XVI shall survive the expiration or earlier
termination of this Agreement.
XVII. FURTHER ASSURANCES. Notwithstanding any other provisions of this
Agreement, Operators shall not (A) take or permit any action or (B) refrain from
taking or permitting any action, if such act or refusal would cause Operators to
violate,
either immediately or with the passage of time, any law, rule, regulation, code
of ethics or fiduciary obligation in their capacity as licensed Operators. Any
decision by Operators to override any action or recommendation of Manager shall
not be deemed a breach of this Agreement, and shall not be an Event of Default,
if such action or refusal is necessary for Operators to maintain compliance with
any such law, rule, regulation, code of ethics or fiduciary obligation.
XVIII. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be an original, and each such counterpart
shall together constitute but one and the same Agreement. Operators shall retain
a copy of this Agreement on file, to be available for inspection by regulatory
authorities.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be
duly executed, as of the day and year first above written.
MANAGER:
SENIOR QUARTERS MANAGEMENT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President/Secretary
OPERATORS:
G.W.E. PARTNERSHIP
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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