1
Exhibit 10.15
▇▇▇▇▇▇▇▇
OPERATIONS TRANSFER AGREEMENT
THIS AGREEMENT is dated as of the 31st day of March, 2001, by and among
Assisted Care Operators of ▇▇▇▇▇▇▇▇, LLC, a Delaware limited liability company
("Tenant"), Balanced Care at ▇▇▇▇▇▇▇▇, Inc., a Delaware corporation ("Manager",
and together with Tenant, collectively, "Transferor") and Trilogy Health
Services, LLC, a Delaware limited liability company ("New Operator").
RECITALS
A. Tenant is the licensed operator of a 66-bed residential care facility
("RCF") commonly known as Outlook Pointe at Anderson and located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Facility"), which Facility is leased pursuant to
the terms of a Lease and Security Agreement dated as of January 30, 1998, as
amended by a First Amendment to Lease and Security Agreement dated as of July 8,
1999 (collectively, the "Lease"), between Health Care Property Investors, Inc.,
a Maryland corporation and successor in interest to AHP of Indiana, Inc., an
Indiana corporation ("Owner"), as landlord, and Tenant, as tenant.
B. Tenant and Manager have entered into that certain Management Agreement
dated as of January 30, 1998 ("Management Agreement"), whereby Tenant engaged
Manager as the exclusive manager and operator of the Facility.
C. New Operator and Owner have agreed to enter into a Lease and Security
Agreement with respect to the Facility ("New Lease") to be effective on and as
of April 1, 2001 ("Takeover Date"), assuming receipt of approval for the change
in ownership from the Indiana Department of Health ("ISDH"). Assuming receipt of
ISDH approval, effective on and as of March 31, 2001, 11:59 p.m. E.S.T.
("Effective Date"), (i) Tenant and Owner will terminate all of Transferor's
right, title and interest under the Lease and (ii) Tenant and Manager will
terminate all of Manager's right, title and interest under the Management
Agreement.
D. In order to facilitate an orderly transfer of Facility operations and
financial responsibility from Transferor to New
2
Operator, Transferor and New Operator desire to document certain terms and
conditions relevant to the transfer of operational and financial responsibility
for the Facility.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein, and intending to be legally bound hereby, New
Operator and Transferor hereby agree as follows.
AGREEMENT
1. Surrender. Immediately following the Effective Date, Transferor shall
surrender to New Operator possession of the Facility (including all resident
charts and records along with appropriate resident consents, if necessary) in AS
IS, WHERE IS condition.
2. Conveyance of Tenants' Personal Property, Inventory and Prepaid
Expenses; Excluded Assets.
2.1. Transferor acknowledges that Owner owns all right, title and
interest in and to substantially all of the furniture, machinery, equipment,
appliances, fixtures and other personal property used in connection with the
Facility excluding the (i) the personal property listed on Schedule 1 that is
owned by Transferor (collectively, "Tenant's Personal Property") and (ii) the
personal property of the residents. Without any additional consideration,
immediately following the Effective Date, Transferor shall sell, transfer and
convey to New Operator all of Transferor's right, title and interest in and to
all Tenant's Personal Property except for the items set forth on Schedule 1 (the
"Excluded Personal Property"). It is understood and agreed that the presence of
the Tenant's Personal Property at the Facility (exclusive of the Excluded
Personal Property) on the Effective Date shall constitute delivery thereof.
2.2 For and in partial consideration of the Transfer Consideration,
immediately following the Effective Date, Transferor shall sell, transfer and
convey to New Operator all consumable inventories of every kind and nature
whatsoever (specifically including, but not limited to, all pharmacy supplies,
medical supplies, office supplies, other supplies and foodstuffs) owned by
Transferor as of the Effective Date and located at the Facility (the
"Inventory"). Transferor shall have no obligation to deliver the Inventory to
any location other than the Facility, it being understood and agreed that the
presence of the Inventory at the Facility on the Effective Date
3
shall constitute delivery thereof. New Operator shall pay any sales or use tax
which may be payable with respect to the sale of the Inventory to New Operator.
2.3 For and in partial consideration of the Transfer Consideration,
immediately following the Effective Date, Transferor shall sell, transfer and
convey to New Operator all of Transferor's right, title and interest in and to
any prepaid expenses with respect to the Facility as of the Effective Date (the
"Prepaid Expenses").
2.4 Transferor shall execute a ▇▇▇▇ of Sale in form and substance
reasonably acceptable to Transferor and New Operator that confirms the
conveyance of Tenant's Personal Property (exclusive of the Excluded Personal
Property).
2.4. Notwithstanding anything to the contrary contained herein,
Transferor shall not sell, transfer or convey to New Operator any of
Transferor's right, title and interest in and to the (i) technical systems,
methods, policies, processes, procedures and controls, and the information and
materials compiled or prepared in connection therewith or (ii) the trade or
service names, associated marks and other intellectual property, including
without limitation the name "Outlook Pointe," used by Transferor in connection
with the marketing and/or operation of the Facility (collectively, the
"Intangible Property").
2.5 Notwithstanding anything to the contrary contained herein,
Transferor shall not sell, transfer or convey to New Operator any of
Transferor's right, title and interest in and to the ▇▇▇▇▇ cash maintained at
the Facility as of the Effective Date (the "▇▇▇▇▇ Cash") (hereinafter, the
Excluded Personal Property, the Intangible Property and the ▇▇▇▇▇ Cash may be
collectively referred to as the "Excluded Assets").
3. Transfer Consideration.
3.1 The total consideration (the "Transfer Consideration") to be
paid to Transferor by New Operator for the Tenant's Personal Property (exclusive
of the Excluded Personal Property), the Inventory and the Prepaid Expenses
(collectively, the "Transferred Assets") shall be an amount equal to: (A) the
net book value of the Transferred Assets as of the Effective Date as set forth
on the Closing Schedule attached hereto as Exhibit A (the "Closing Schedule")
less (B) the amount of certain accrued and unpaid liabilities of Transferor
through and
4
including the Effective Date (the "Liabilities"). The unpaid trade accounts
payable as of the Effective Date will be paid by Transferor to the extent they
do not represent prepayment of expenses. The Closing Schedule sets forth in
reasonable detail Transferor's best estimate of the amount of the Liabilities
and the net book value of the Transferred Assets.
3.2 From and after the Effective Date, Transferor shall allow New
Operator to have reasonable access to (upon reasonable prior notice and during
normal business hours) and/or copies of (at New Operator's own cost and expense)
the books and records and supporting material of the Facility relating to the
Transferred Assets and the Liabilities, to the extent reasonably necessary to
enable New Operator to verify the Transferred Assets and the Liabilities. The
Closing Schedule shall be deemed to be accepted by New Operator and shall be
final and binding for all purposes of this Agreement unless New Operator, within
thirty (30) days following the Effective Date, gives notice to Transferor
stating the items as to which New Operator takes exception ("Objections"). If an
Objection is disputed by Transferor, then the parties shall negotiate in good
faith to resolve such dispute. If after a period of thirty (30) days following
the date on which New Operator delivered the Objections, any Objection still
remains disputed, then Transferor or New Operator shall together choose an
independent, impartial firm of public accountants of nationally recognized
standing to resolve such remaining Objections. The accounting firm shall act as
an arbitrator and shall have the power and authority to determine those issues
still in dispute. The accounting firm shall use the following standards in the
evaluation of any Objection regarding a Transferred Asset: (i) existence, and
presence at or proper attribution to the Facility, of the Transferred Asset,
(ii) proper recording on the books of the appropriate entity of the Transferred
Asset, (iii) appropriate method and useful life used in depreciating the
Transferred Asset, and (iv) appropriate classification of the Transferred Asset
in one of the classifications included in the definition of "Transferred Asset."
The determination of the accounting firm shall be final and binding. The fees
and expenses of the accounting firm shall be paid equally by Transferor and New
Operator.
3.3 Within ten (10) days following resolution of all Objections, (i)
if the Transfer Consideration is an amount greater than zero, then New Operator
shall pay the amount of the excess to Transferor, by wire transfer or certified
check or (ii) if the Transfer Consideration is an amount less than zero,
5
then Transferor shall pay the amount of the deficiency to New Operator, by wire
transfer or certified check.
4. Resident Property. Transferor hereby represents to New Operator
that there are no resident trust funds.
5. Employees.
5.1 On or before the Effective Date, Transferor shall have delivered
to New Operator a schedule which reflects the following for the Facility: (i)
the names of all of Transferor's employees and (ii) such employees' positions
and rates of pay.
5.2 On the Effective Date, New Operator shall have the right, in its
sole and absolute discretion, but not the obligation to offer to employ
Transferor's employees that work at the Facility. Transferor shall assist New
Operator in its efforts to employ any of Transferor's employees. On the
Effective Date, Transferor shall terminate the employment of all employees at
the Facility. New Operator agrees to cooperate with Transferor to provide
information concerning which employees, if any, are being offered employment by
New Operator (collectively, the "Retained Employees").
5.3 Transferor shall remain liable for all Employee Liabilities (as
defined below) relating to all employees on or prior to the Effective Date,
including without limitation (i) payroll through the Effective Date, which will
be paid by Transferor on April 6, 2001 ("March Payroll") and (ii) any Employee
Liabilities relating to the termination of any employees on the Effective Date.
Transferor shall pay all earned or accrued vacation, holiday or sick pay as of
the Effective Date to all employees as part of the March Payroll. New Operator
shall be responsible for all Employee Liabilities relating to the Retained
Employees that arise or accrue after the Effective Date. For the purposes of
this Agreement, "Employee Liabilities" shall mean all wages, salaries,
commissions, earned or accrued vacation, holiday or sick pay, severance pay (if
any), any contributions required or costs associated with any employee welfare
benefit plan as defined by Section 3(1) of ERISA, any contributions required or
costs associated with any employee pension benefit plan as defined by Section
3(2) of ERISA, any contributions required or costs associated with any
non-qualified employee benefit plan, federal, state and/or local payroll taxes,
unemployment insurance costs, any contributions required or costs associated
6
with workers' compensation liabilities, and any claims made by any employee
arising out of or connected with his or her employment or the termination
thereof.
5.4 Transferor shall offer and provide, as appropriate, group health
plan continuation coverage pursuant to the requirements of Section 601, et seq.
of ERISA and Section 4980B of the Internal Revenue Code ("COBRA") to all of the
employees of the Facility to whom it is required to offer the same under
applicable law up through and including the Effective Date. New Operator agrees
to cooperate with Transferor in providing information concerning the Retained
Employees, if any, after the Effective Date, and the nature of the benefits
offered to each such employee. As of the Effective Date, all Retained Employees
shall be eligible for participation in a group health plan (as defined for
purposes of Internal Revenue Code Section 4980B) established and maintained by
New Operator for the general benefit of its employees and their dependents in
accordance with the terms and conditions of New Operator's policy.
6. Accounts Receivable.
6.1 Transferor shall retain its right, title and interest in and to
all unpaid trade accounts receivable with respect to the Facility that relate to
the period up through and including the Effective Date. Within twenty (20) days
after the Effective Date, Transferor shall provide New Operator with a schedule
setting forth by resident its outstanding trade accounts receivable as of the
Effective Date.
6.2 Payments received by New Operator or Transferor after the
Effective Date from third party payors and private pay residents shall be
handled as follows:
6.2.1 If such payments either specifically indicate on the
accompanying remittance advice, or if the parties agree, that they relate to the
period on or prior to the Effective Date, they shall be forwarded to Transferor,
along with the applicable remittance advice, in accordance with the provisions
of Section 6.2.4 below.
6.2.2 If such payments indicate on the accompanying remittance
advice, or if the parties agree, that they relate to the period after the
Effective Date, they shall be retained by New Operator.
7
6.2.3 If such payments indicate on the accompanying remittance
advice, or if the parties agree, that they relate to periods for which both
parties are entitled to reimbursement under the terms hereof, the portion
thereof which relates to the period after the Effective Date shall be retained
by New Operator and the balance shall be remitted to Transferor in accordance
with the provisions of Section 6.2.4 below.
6.2.4 All amounts owing to Transferor under this Section 6.2
shall be settled within ten (10) days after the end of each month in which the
payment was received.
6.3 In the event the parties mutually determine that any third party
payors or private pay residents are entitled to a refund of payments, the
portion thereof that relates to the period after the Effective Date shall be
paid by New Operator and the portion thereof that relates to the period on or
prior to the Effective Date shall be paid by Transferor to such third party
payor or private pay resident.
6.4 In the event the parties mutually determine that any payment
hereunder was misapplied by the parties, the party which erroneously received
said payment shall remit the same to the other within fifteen (15) business days
after said determination is made.
6.5 For the six (6) month period following the Effective Date or
until Transferor receives payment of all accounts receivable attributed to the
operation of the Facility prior to the Effective Date, whichever is sooner, New
Operator shall provide Transferor with an accounting by the 15th day of each
month setting forth all amounts received by New Operator during the preceding
month with respect to the accounts receivable of Transferor which are set forth
in the schedule provided by Transferor pursuant to Section 6.1. New Operator
shall deliver such accounting to the following address: ▇▇▇▇▇ ▇▇▇▇▇, Balanced
Care Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Transferor shall
have the right to inspect all cash receipts of New Operator during weekday
business hours on reasonable prior notice in order to confirm New Operator's
compliance with the obligations imposed on it under this Section 6.
7. Prorations; Liabilities.
7.1 As between New Operator and Transferor, revenues
8
and expenses, utility charges for the billing period in which the Effective Date
occurs, real and personal property taxes, insurance premiums, liabilities under
the Assumed Contracts (as defined in Section 9 below), vendor payables for the
billing period in which the Effective Date occurs, prepaid expenses, entrance
fees and other related items of revenue or expense attributable to the Facility
shall be prorated between Transferor and New Operator as of the Effective Date.
In general, such prorations shall be made so that as between New Operator and
Transferor, Transferor shall be reimbursed for prepaid expense items to the
extent that the same are attributable to the periods after the Effective Date
and Transferor shall be charged for unpaid expenses to the extent that the same
are attributable to periods on or prior to the Effective Date. The intent of
this provision shall be implemented by New Operator remitting to Transferor any
invoices that describe goods or services provided to or expenses incurred by the
Facility on or prior to the Effective Date and by New Operator assuming
responsibility for the payment of any invoices that describe goods or services
provided to or expenses incurred by the Facility after the Effective Date.
Notwithstanding anything to the contrary contained herein, New Operator and
Transferor acknowledge and agree that (i) the 2000 assessments for real estate
and personal property taxes and (ii) the pro-rata portion of the 2001
assessments for real estate and personal property taxes shall be paid by
Transferor in accordance with the provisions of that certain Agreement for
Termination of Lease, Guaranties and Ancillary Documents of even date herewith
among Owner, Tenant, Transferor and the other parties named therein.
7.2 All such prorations shall be made on the basis of actual days
elapsed in the relevant accounting or revenue period and shall be based on the
most recent information available to Transferor. Utility charges that are not
metered and read on the Effective Date shall be estimated based on prior
charges, and shall be re-prorated upon receipt of statements therefor.
7.3 All amounts owing from one party hereto to the other party
hereto that require adjustment after the Effective Date shall be settled within
thirty (30) days after the Effective Date or, in the event the information
necessary for such adjustment is not available within said thirty (30) day
period, then as soon thereafter as practicable.
8. Access to Records.
9
8.1. From and after the Effective Date and for a period of five (5)
years thereafter, New Operator shall allow Transferor and its agents and
representatives to have reasonable access to (upon reasonable prior notice and
during normal business hours), and to make copies of, the books and records and
supporting material of the Facility relating to the period on or prior to the
Effective Date, to the extent reasonably necessary to enable Transferor to among
other things investigate and defend malpractice, employee or other claims, to
file or defend tax returns, to verify accounts receivable collections due
Transferor.
8.3. Transferor shall be entitled to remove the originals of any
records delivered to New Operator, for purposes of litigation involving a
resident or employee to whom such record relates, if an officer of or counsel
for Transferor certifies that such original must be produced in order to comply
with applicable law or the order of a court of competent jurisdiction in
connection with such litigation. Any record so removed shall promptly be
returned to New Operator following its use, and nothing herein shall be
interpreted to prohibit New Operator from retaining copies of any such
documents.
8.4. New Operator agrees to maintain such books, records and other
material comprising records of the Facility's operations that have been received
by New Operator from Transferor or otherwise, including, but not limited to,
resident records, to the extent required by law, but in no event less than three
(3) years, and shall, at Transferor's request, allow Transferor a reasonable
opportunity to remove such documents, at Transferor's expense, at such time
after such record retention period as may be required by law as New Operator
shall decide to dispose of such documents.
9. Contracts. Immediately following the Effective Date, Transferor does
hereby agree to assign, and New Operator does hereby agree to assume and be
bound by all of the terms and conditions of, Transferor's interest and
obligations under the resident agreements, operating contracts and equipment
financing agreements identified in Schedule 2 hereto (collectively, the "Assumed
Contracts"). Transferor will cooperate with New Operator in obtaining any
required consent, waiver or approval in connection with the assignment to and
assumption by New Operator of Transferor's interests under the Assumed
Contracts. Nothing herein shall be construed as imposing any liability on New
Operator with respect to any obligations under Assumed Contracts which relate to
the period on or prior to the
10
Effective Date even if the same are not payable until after the Effective Date,
it being specifically understood and agreed that New Operator's liability shall
be limited to its acts and omissions thereunder after the Effective Date.
10. Intentionally Deleted.
11. Representations and Warranties. Each of New Operator and
Transferor represents and warrants as follows:
11.1 New Operator has all necessary power and authority to enter
into this Agreement and to execute all documents and instruments referred to
herein or contemplated hereby and to consummate the transactions provided for
herein and all necessary action has been taken to authorize the individuals
executing this Agreement to do so. This Agreement has been duly and validly
executed and delivered by New Operator and is enforceable against New Operator
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy laws and general principals of equity.
11.2 Transferor hereby represents and warrants that Transferor has
all necessary power and authority to enter into this Agreement and to execute
all documents and instruments referred to herein or contemplated hereby and to
consummate the transactions provided for herein and all necessary action has
been taken to authorize the individuals executing this Agreement to do so. This
Agreement has been duly and validly executed and delivered by Transferor and is
enforceable against Transferor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy laws and general
principals of equity. Transferor is not in default under any of the Assumed
Contracts.
12. Indemnification.
12.1 Transferor hereby indemnifies and agrees to defend and hold
harmless New Operator and its directors, officers, employees, agents, successors
and assigns from and against any and all demands, claims, causes of action,
fines, penalties, damages (including consequential damages), losses, liabilities
(including strict liability), judgments, and expenses (including, without
limitation, reasonable attorneys' and other professionals' fees and court costs)
incurred in connection with or arising from: (i) a breach by Transferor of its
representations, warranties and obligations under this Agreement, (ii) the acts
or omissions of Transferor under the
11
Assumed Contracts on or prior to the Effective Date, (iii) the occupancy or
operation of the Facility on or prior to the Effective Date, (iv) any acts,
omissions or negligence of Transferor or any person claiming under Transferor,
or the contractors, agents, employees, invitees or visitors of Transferor with
respect to the Facility on or prior to the Effective Date or (v) any failure by
Transferor to pay any liabilities [other than Rent (as defined in the Lease)] in
connection with the Facility attributable to periods on or before the Effective
Date.
12.2 New Operator hereby indemnifies and agrees to defend and hold
harmless Transferor and its directors, officers, employees, agents, successors
and assigns from and against any and all demands, claims, causes of action,
fines, penalties, damages (including consequential damages), losses, liabilities
(including strict liability), judgments, and expenses (including, without
limitation, reasonable attorneys' and other professionals' fees and court costs)
incurred in connection with or arising from: (i) a breach by New Operator of its
representations, warranties and obligations under this Agreement, (ii) the acts
or omissions of New Operator under the Assumed Contracts after the Effective
Date, (iii) the occupancy or operation of the Facility after the Effective Date,
(iv) any acts, omissions or negligence of New Operator or any person claiming
under New Operator, or the contractors, agents, employees, invitees or visitors
of New Operator with respect to the Facility after the Effective Date or (v) any
failure by New Operator to pay any liabilities in connection with the Facility
attributable to periods after the Effective Date.
12.3 The foregoing indemnification obligations shall survive this
Agreement. All matters arising from an indemnified party's negligence, gross
negligence or willful misconduct are excluded from the scope of the
indemnification of such party set forth in Sections 12.1 and 12.2.
13. Transfer of Licenses.
13.1 New Operator shall use its commercially reasonable best efforts
to obtain all necessary licenses and certifications to operate the Facility as a
RCF as soon as is reasonably practicable, said licenses and certifications to be
effective on and as of the Takeover Date.
13.2 Transferor agrees to cooperate fully with New Operators to
accomplish the transfer of such management and
12
operation of the Facility upon the Takeover Date assuming prior execution of the
New Lease and New Operator obtaining a permission to occupy from the ISDH,
without materially interrupting the business or operation of the Facility.
14. Further Assurances. Each of the parties hereto agrees to execute and
deliver any and all further agreements, documents or instruments necessary to
effectuate this Agreement and the transactions referred to herein or
contemplated hereby or reasonably requested by the other party to perfect or
evidence their rights hereunder.
15. Notices and Demands. All notices and demands, requests, consents,
approvals, and other similar communications under this Agreement shall be in
writing and shall be sent by personal delivery or by either (a) United States
certified or registered mail, return receipt requested, postage prepaid, or (b)
Federal Express or similar generally recognized overnight carrier regularly
providing proof of delivery, addressed as follows:
To Transferor:
c/o Balanced Care Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy To:
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To New Operator:
Trilogy Health Services, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13
With Copy To:
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Any notice so given by mail shall be deemed to have been given as of the date of
delivery (whether accepted or refused) established by U.S. Post Office return
receipt or the overnight carrier's proof of delivery, as the case may be,
whether accepted or refused. Any such notice not so given shall deemed given
upon receipt of the same by the party to whom the same is to be given. Any party
hereto may designate a different address for itself by notice to the other party
in accordance with this Section 15.
16. Payment of Expenses. Each party hereto shall bear its own legal,
accounting and other expenses incurred in connection with the preparation and
negotiation of this Agreement and the consummation of the transaction
contemplated hereby, whether or not the transaction is consummated.
17. Entire Agreement; Amendment; Waiver. This Agreement, together with the
other agreements referred to herein, constitutes the entire understanding
between the parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions and preliminary agreements. This Agreement may
not be modified or amended except in writing signed by the parties hereto. No
waiver of any term, provision or condition of this Agreement in any one or more
instances, shall be deemed to be or be construed as a further or continuing
waiver of any such term, provision or condition of this Agreement. No failure to
act shall be construed as a waiver of any term, provision, condition or rights
granted hereunder.
18. Assignment. Neither this Agreement nor the rights, duties or
obligations arising hereunder shall be assignable or delegable by Transferor or
New Operator without the prior written consent of the other party, which may be
granted, denied or conditioned in such party's reasonable discretion. This
Agreement shall be binding upon, and inure to the benefit of, the respective
successors and assigns of Transferor and New Operator.
14
19. Joint Venture; Third Party Beneficiaries. Nothing contained herein
shall be construed as forming a joint venture or partnership between the parties
hereto with respect to the subject matter hereof. The parties hereto do not
intend that any third party shall have any rights under this Agreement.
20. Announcements. The parties hereto acknowledge and agree that any
communications to the employees of the Facility regarding the terms of this
Agreement and the transactions contemplated hereunder shall be mutually
acceptable to the parties hereto unless required to made pursuant to court order
or law.
21. Captions. The section headings contained herein are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation.
22. Counterparts. This Agreement may be executed and delivered via
facsimile and in one or more counterparts and all such counterparts taken
together shall constitute a single original Agreement.
23. Governing Law. This Agreement shall be governed in accordance
with the laws of the Commonwealth of Pennsylvania without regard to the
conflict of rules of such State.
[SIGNATURES CONTINUED ON NEXT PAGE]
15
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
day and year first set forth above.
ASSISTED CARE OPERATORS OF ▇▇▇▇▇▇▇▇,
LLC, a Delaware limited liability company
By: Balanced Care at ▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation, its Manager
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Secretary
BALANCED CARE AT ▇▇▇▇▇▇▇▇, INC.,
a Delaware corporation
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Secretary
TRILOGY HEALTH SERVICES, LLC, a
Delaware limited liability company
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager