EX 10.53.8
AGREEMENT TO PROVIDE
MANAGEMENT SERVICES
TO
AN INDEPENDENT AND ASSISTED LIVING FACILITY
(TOLEDO, OHIO)
This Agreement to Provide Management Services to
an Independent and Assisted Living Facility
("Agreement") dated as of January 1, 1998, is made and
entered into by and between PARK LANE TOLEDO L.L.C., a
Washington limited liability company ("Owner") and
ACORN SERVICE CORPORATION, a Washington corporation
("Manager").
RECITALS
A. Owner is the owner of that certain real
property located at 142 - 23rd at Jefferson in Toledo,
Ohio (the "Real Property") including the improvements
on the Real Property that constitute the 92 unit
independent and assisted living facility commonly known
as "Park Lane" and located in Toledo, Ohio (the
"Facility");
B. Owner desires to engage the services of a
person or entity to manage the Facility on Owner's
behalf and to provide certain consulting services to
Owner in connection therewith.
C. Manager is experienced and qualified in the
field of assisted living facility management;
D. Owner has determined that Manager's fee is
economical in light of the range of services which
Manager is willing to provide to Owner; and
E. Manager is willing to operate the Facility on
Owner's behalf and provide consulting services to Owner
in connection therewith, pursuant to the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing
premises and the mutual covenants herein contained, IT
IS AGREED AS FOLLOWS:
1. MANAGEMENT AND CONSULTING RESPONSIBILITIES OF
MANAGER.
Owner hereby engages Manager to provide, and
Manager hereby accepts such engagement and agrees to
provide, management, consulting, advisory and
supervisory services to Owner in connection with the
operation of the Facility, upon the terms and
conditions set forth in this Agreement. By entering
into this Agreement, Owner does not delegate to Manager
any powers, duties, or responsibilities which Owner is
prohibited by law from delegating. Owner also retains
such other authority as shall not have been expressly
delegated to Manager pursuant to this Agreement.
Subject to the foregoing, and commencing on January 1,
1998 (the "Commencement Date") Manager shall provide
the following services to, or on behalf of Owner:
1.1 Operational Policies and Forms. Manager shall
implement operational policies and procedures and
develop such new policies and procedures as Manager
deems necessary to insure the establishment and
maintenance of operational standards appropriate for
the nature of the Facility.
1.2 Charges. Manager shall establish the schedules
of recommended charges, including any and all special
charges for services rendered to residents at the
Facility. Owner shall have the right to review and
approve the charge schedules established by Manager.
1.3 Information. Manager shall develop any
informational material, mass media releases, and other
related publicity materials, which Manager deems
necessary for the operation of the Facility.
1.4 Regulatory Compliance. Manager, with the
assistance of Owner if requested by Manager, shall use
its best efforts to obtain and maintain all licenses,
permits, qualifications, and approvals from any
applicable governmental or regulatory authority for the
operation of the Facility and to manage the operations
of the Facility in full compliance with all applicable
laws and regulations, and in accordance with all such
licenses, permits, qualifications, and approvals.
1.5 Equipment and Improvements. Manager shall
advise Owner as to equipment and improvements which are
needed to maintain or upgrade the quality of the
Facility, to replace obsolete or run-down equipment, or
to correct any deficiencies (including, without
limitation, any survey deficiencies) which may be
observed or cited during the term of this Agreement.
Owner shall review and act upon Manager's
recommendations as expeditiously as possible. Manager
shall not be liable for any cost or liability which
Owner may incur in the event Owner disregards Manager's
recommendations. Manager shall, as a Facility Expense
(such term as used in this Agreement shall have the
meaning specified in Paragraph 8.2 below), make all
necessary and approved repairs, replacements and
maintenance within the budgetary limits set forth in
the annual capital expenditure budget prepared by
Manager pursuant to Paragraph 1.12. hereof and in a
workmanlike and lien-free manner.
1.6 Accounting. Manager shall provide home office
and accounting support to the Facility. All accounting
procedures and systems utilized in providing said
support shall be in accordance with the operating
capital and cash programs developed by Manager, which
programs shall conform to generally accepted accounting
principles and shall not materially distort income or
loss. If Owner so elects by notice to Manager, Manager
shall prepare or cause to be prepared all tax returns
required in connection with operation of the Facility,
including payroll tax returns (but excluding Owner's
income tax returns, which Manager shall prepare only if
Owner and Manager agree upon separate compensation to
be paid to Manager for preparing such income tax
returns) and, at Owner's sole cost and expense, Manager
shall cause all local, state and federal taxes to be
timely paid or contested, as appropriate. Such taxes
shall be deemed to be Facility Expenses and shall be
paid out of the revenues of the Facility or the working
capital for the Facility provided by Owner. Nothing
herein shall preclude Manager from delegating to a
third party a portion of the accounting duties provided
for in this section; provided, that such delegation
shall not relieve Manager from Manager's ultimate
liability for the timely and complete performance of
the obligations provided for herein.
1.7 Reports. Manager shall prepare and provide to
the Owner any reasonable operational information which
may from time to time be specifically requested by
Owner, including any information needed to assist Owner
in completing its tax returns and in complying with any
reporting obligations imposed by any mortgagees of the
Facility. In addition: (i) within thirty (30) days
after the end of each calendar month, Manager shall
provide Owner with an unaudited balance sheet of the
Facility, dated the last day of such month, and an
unaudited statement of income and expenses for such
month relating to the operation of the Facility; and
(ii) within ninety (90) days after the end of the
fiscal year of the Facility, Manager shall provide
Owner with unaudited financial statements including a
balance sheet of the Facility, dated the last day of
said fiscal year, and an unaudited statement of income
and expense for the fiscal year then-ended relating to
the operation of the Facility.
1.8 Bank Accounts. Manager shall open a new
checking account in the name of the Facility ("Facility
Checking Account") and shall deposit in the Facility
Checking Account all money received during the term of
this Agreement in the course of the operation of the
Facility; provided, however, that during the term
hereof, withdrawals and payments from the Facility
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Checking Account shall be made only on checks signed by
a person or persons authorized by Manager. Owner shall
be given notice as to the identity of said authorized
signatories. All Facility Expenses incurred in the
operation of the Facility in accordance with the terms
of the budgets submitted to Owner under Paragraph 1.12
hereof, shall be paid by check drawn on the Facility
Checking Account. Withdrawals from the Facility
Checking Account shall be made first to pay the Base
Management Fee (as that term is defined in Subparagraph
9.2, below), and, thereafter, to pay Facility Expenses
in such order of priority as Manager deems appropriate
to the operation of the Facility. In the event the
revenues generated by the Facility are at any time
insufficient to pay all of the Facility Expenses, Owner
shall, within five (5) days of Owner's receipt of a
written demand by Manager, deposit in the Facility
Checking Account sufficient funds to satisfy the then
working capital needs of the Facility.
1.9 Personnel. Manager shall: (i) recruit, employ,
train, promote, direct, discipline, suspend, and
discharge Facility personnel; (ii) establish salary
levels, personnel policies, and employee benefits; and
(iii) establish employee performance standards, all as
needed during the term of this Agreement to ensure the
efficient operation of all departments within and
services offered by the Facility. All Facility
personnel shall be employees of Manager, not Owner, and
all salaries, benefits, payroll taxes and other costs
related to Facility personnel (including, without
limitation, computer training and other employee
training and education, including tuition, travel and
other expenses relating thereto if such expenses are
incurred with Owner's approval) shall not be included
in the Base Management Fee, but shall be separately
reimbursed by Owner as a Facility Expense. In addition,
the costs and expenses (including, without limitation,
travel expenses) of consultants, independent
contractors or other providers of services engaged by
Manager with Owner's approval shall be separately
reimbursed as Facility Expenses.
1.10 Supplies and Equipment. Manager shall
purchase, as a Facility Expense, supplies and non-
capital equipment (including, without limitation,
computer hardware and software) needed to operate the
Facility within the budgetary limits set forth in the
annual operating budget prepared by Manager pursuant to
Paragraph 1.12 hereof. In purchasing said supplies and
equipment Manager shall, if possible, take advantage of
any national or group purchasing agreements to which
Manager may be a party.
1.11 Legal Proceedings. If approved by Owner,
Manager shall, as a Facility Expense and through its
legal counsel, coordinate all legal matters and
proceedings with Owner's counsel; if Owner does not
approve the same, Owner shall indemnify, protect,
defend and hold Manager harmless with respect to such
legal matters and proceedings.
1.12 Budgets. The Facility shall be operated on a
fiscal year of January 1 through December 31. Within
forty-five (45) days prior to the start of each fiscal
year, Manager shall prepare and submit to Owner for
Owner's review and agreement, which agreement shall not
be unreasonably withheld (i) an annual operating
budget, (ii) an annual capital expenditure budget, and
(iii) an annual cash flow projection. In the event the
operating budget or the capital expenditure budget (or
both) have not been agreed upon prior to the first day
of the then-current fiscal year, beginning in fiscal
year 1998, the operating budget or capital expenditure
budget in effect for the prior fiscal year, as
appropriate., shall continue in effect until the new
operating budget or capital expenditure budget, as
appropriate, is agreed upon by Owner and Manager.
Thereafter, any expenditures made during the year
pursuant to said agreed-upon budgets and/or any
expenditures on an item-by-item basis exceeding by no
more than 10"% the amounts set forth therein for the
applicable expense item (the "Budget Threshold") may be
made without Owner's prior approval. Any unbudgeted
expenditures and/or any expenditures in excess of the
Budget Threshold shall be subject to Owner's prior
approval, which approval shall not be unreasonably
withheld.
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1.13 Collection of Accounts. Manager shall issue
bills and collect accounts and monies owed for goods
and services furnished by the Facility, including, but
not limited to, enforcing the rights of Owner and the
Facility as creditor under any contract or in
connection with the rendering of any services;
provided, however, that any expenses incurred by
Manager shall not be included in the Base Management
Fee, but shall be separately reimbursed by Owner as a
Facility Expense. Notwithstanding any other provision
of this Agreement to the contrary, Manager does not
guaranty the collectability of such accounts or monies
and shall have no liability to Owner for Manager's
inability to so collect such accounts or monies.
1.14 Construction Supervision. Owner and Manager
may agree that Manager shall act as construction
supervisor with respect to any construction work for
the Facility or on the Real Property after the
Commencement Date (as defined in Paragraph 3, below),
in which event Manager will supervise, oversee and
administer each and every aspect of any such
improvements and construction work. For the purposes of
this Agreement, "construction work" shall include any
construction, reconstruction or alteration of any
improvements constituting part of the Real Property,
but shall not include usual maintenance and repairs
made to the Facility or the Real Property. Without
limitation of the foregoing, if Owner and Manager agree
that Manager shall act as construction supervisor, and
subject to Owner's approval in each instance, Manager
will: (a) negotiate contracts for architectural,
design, engineering and construction services; (b)
secure any and all necessary consents and approvals;
(c) oversee the administration of construction
contracts; and (d) act as project manager with respect
to the construction work.
1.15 Extraordinary Costs. Except as otherwise
specifically provided herein, all extraordinary costs
incurred by Manager with respect to the Facility shall
be separately reimbursed as Facility Expenses (and not
included in the Base Management Fee) after first having
been approved by Owner.
2. INSURANCE.
Upon request, Manager, at Owner's sole cost and
expense, shall arrange for and maintain all necessary
and proper hazard insurance covering the Facility, the
furniture, fixtures, and equipment situated thereon,
and all necessary and proper malpractice and public
liability insurance for Owner's protection and for the
protection of Owner's officers, agents and employees.
Until such a request is made and/or in the event
Manager is unable to secure insurance coverage for the
Facility for any reason whatsoever, Owner shall be
responsible for obtaining and maintaining said
insurance. In addition, Manager shall provide employee
health and worker's compensation insurance for all
Manager employees at the Facility in accordance with
Manager's policies therefor, and the costs thereof
shall not be included in the Base Management Fee, but
shall be separately reimbursed by Owner as a Facility
Expense. Manager shall, at Manager's sole cost and
expense, arrange for and maintain all necessary and
proper malpractice and public liability insurance for
the protection of Manager, and Manager's officers,
agents, and employees. Any insurance provided by Owner
pursuant to this Paragraph 2 shall comply with the
requirements of any mortgage or deed of trust
encumbering the Facility, and any insurance provided by
Manager pursuant to this Paragraph 2 shall comply with
such requirements provided that Owner shall have
provided Manager with a copy of such mortgage or deed
of trust.
3. PROPRIETARY INTEREST.
The systems, methods, procedures, and controls
employed by Manager and any written materials or
brochures developed by Manager to document the same
are, and shall remain, the property of Manager and are
not, at any time during or after the term of this
Agreement, to be utilized, distributed, copied, or
otherwise employed or acquired by Owner, except as
authorized by Manager.
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4. TERM AND TERMINATION OF AGREEMENT.
4.1 Term. The term of this Agreement ("Term")
shall commence on the Commencement Date and expire on
the fifth (5th) anniversary of the Commencement Date;
provided, however, that the Term shall be extended
automatically for successive two (2) year periods
unless terminated prior to expiration of the Term (as
the same may have be extended) pursuant to this
Paragraph 4.
4.2 Termination. The Term (as the same may be have
been extended ) may be terminated by either Manager or
Owner
(a) at any time, with or without cause, by giving
notice of termination not less than thirty
(30) days prior to the effective date of such
termination;
(b) if fifty percent (50%) or more of the
Facility is either (i) damaged or destroyed
or (ii) taken by condemnation proceedings or
otherwise, whether or not Owner elects to
rebuild or repair the Facility, by giving
notice of termination not less than ten ( 10)
days prior to the effective date of such
termination;
(c) immediately upon the occurrence of an Event
of Default by the other party (as defined in
Paragraph 5, below), by giving notice of
termination, effective the date of receipt
(or deemed receipt) by the defaulting party
of such notice of termination.
4.3 Effect of Termination. In the event of a
termination of Term pursuant to Subparagraphs 4.2(a) or
4.2(b), above, upon the effective date of such
termination, neither party shall have any further
obligations whatsoever under this Agreement; provided,
however, that Manager shall be entitled to receive
immediate payment of all amounts theretofore unpaid by
Owner but earned by Manager as of the effective date of
such termination. In the event of a termination of the
Term pursuant to Subparagraph 4.2(c), above, except as
expressly provided in Paragraph 5.3, below, neither
party shall have any further obligation whatsoever
under this Agreement; provided, however, that Manager
shall be entitled to receive immediate payment of all
amounts theretofore unpaid by Owner but earned by
Manager as of the effective date of such termination.
In the event that Owner desires Manager to leave any
equipment owned by Manager at the Facility upon such
termination, Owner shall pay to Manager the fair market
value of such equipment to be left at the Facility and
Manager shall transfer title thereto to Owner upon such
payment.
5. DEFAULT, REMEDIES UPON DEFAULT.
5.1 Manager's Events of Default. With respect to
Manager, it shall be an "Event of Default" under this
Agreement:
(a) If Manager shall fail to keep, observe,
or perform any material agreement, term,
or provision of this Agreement, and such
default shall continue for a period of
thirty (30) days after Manager' s
receipt of notice of such default from
Owner, which notice shall specify the
event or events constituting the
default; or
(b) If (i) Manager shall: (A) apply for, or
consent to, the appointment of a
receiver, trustee, or liquidator of
Manager of all or a substantial part of
Manager's assets, (B) file a voluntary
petition in bankruptcy, or admit
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in writing Manager's inability to pay
Manager's debts as they become due, (C)
make a general assignment for the
benefit of creditors, or (D). file a
petition or an answer seeking
reorganization or arrangement with
creditors or taking advantage of any
insolvency law; or (ii) an order,
judgment or decree shall be entered by a
court of competent jurisdiction, on the
application of a creditor (A)
adjudicating Manager as bankrupt or
insolvent, (B).approving a petition
seeking reorganization of Manager, or
(C) appointing a receiver, trustee, or
liquidator for Manager or for all or a
substantial part of Manager's assets.
5.2 Owner's Events of Default. With respect to
Owner, it shall be an Event of Default under this
Agreement:
(a) If Owner shall fail to make or cause to
be made any payment to Manager required
to be made hereunder (other than Owner's
obligation, pursuant to Paragraph 1.8,
above, to deposit working capital into
the Facility Checking Account, which
circumstance shall be handled in
accordance with Subparagraph 5.2(b),
below), and such failure shall continue
for a period of thirty (30) days;
(b) If Owner shall fail to keep, observe, or
perform any material agreement, term, or
provision of this Agreement and such
default shall continue for a period of
thirty (30) days after Owner' s receipt
of notice of such default from Manager,
which notice shall specify an event or
events constituting the default;
provided, however, that in the case of
Owner's failure to provide, pursuant to
Paragraph 1.8, above, necessary working
capital upon demand by Manager, it shall
be deemed to be an Event of Default
hereunder if the such necessary working
capital is not deposited in the Facility
Checking Account within ten ( I 0) days
of Manager's initial demand therefor
without any further notice from Manager
being required;
(c) If Owner shall fail to make payments, or
keep any covenants, owing to any third
party which are beyond the control of
Manager to make or keep, and which would
cause Owner to lose possession of the
Facility or any personal property
required to operate the Facility in the
normal course of operation; or
(d) If: (i) Owner shall (A) be dissolved,
(B) apply for or consent to the
appointment of a receiver, trustee or
liquidator for Owner or for all or a
substantial part of Owner's assets, (C)
file a voluntary petition in bankruptcy
or admit in writing its inability to pay
Owner's debts as they become due, (D)
make a general assignment for the
benefit or creditors, or (E) file a
petition or an answer seeking
reorganization or arrangement with
creditors or taking advantage of any
insolvency law; or (ii) an order,
judgment or decree shall be entered by a
court of competent jurisdiction, on the
application of a creditor (A)
adjudicating Owner as bankrupt or
insolvent, (B) approving a petition
seeking reorganization of Owner, or (C)
appointing a receiver, trustee or
liquidator for Owner or of all or a
substantial part of Owner's assets.
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5.3 Remedies Upon Default by Owner. In the event
of an Event of Default by a party, the non-defaulting
party shall have, in addition to the right to terminate
the Term pursuant to Subparagraph 4.2(c), above, all
rights and remedies available to such non-defaulting
party at law or in equity.
6. OWNER'S RIGHT TO INSPECT FACILITY/BOOKS AND RECORDS.
During the Term, Owner shall have the right, upon
not less than forty-eight (48) hours prior notice to
Manager and at reasonable times during normal business
hours, to inspect the Facility and to inspect and/or
audit all books and records pertaining to the operation
thereof.
7. FACILITY OPERATIONS.
7.1 No Guarantee of Profitability. Manager does
not guarantee, and shall not be construed to have
guaranteed, to Owner or any third party (including any
mortgagee) that operation of the Facility will be
profitable, but Manager shall use Manager's
commercially reasonable, diligent, and good faith
efforts to operate the Facility in as cost-efficient
and profitable a manner as possible in light of all of
the circumstances then-existing.
7.2 Standard of Performance. In performing
Manager's obligations under this Agreement, Manager
shall use Manager's commercially reasonable, diligent,
and good faith efforts, and act with professionalism,
in undertaking management of the Facility, all in
accordance with accepted and prevailing standards of
health care in the general location of the Facility and
with the policies adopted by, and resources available
to, the Facility.
7.3 Force Majeure. Manager will not be deemed to
be in violation of this Management Agreement if Manager
is prevented from performing any of Manager' s
obligations hereunder for any reason beyond Manager's
reasonable control, including, without limitation:
strikes, sick-outs, or labor disputes; material or
supply shortages; war, insurrection or civil unrest;
fire, earthquakes, severe weather, flooding; acts of
God; Owner's failure to perform Owner obligations under
this Agreement; or any law, statute, regulation,
ordinance, or rule of any federal, state or local
government or agency thereof, or any order, decree, or
judgment of any court with jurisdiction.
8. WITHDRAWAL OF FUNDS BY OWNER; MINIMUM BANK BALANCE.
8.1 Withdrawal by Owner. From time to time, Owner
may withdraw the then accumulated operating cash
surplus (as determined by Manager) from the Facility
Checking Account subject to the right of Manager to
restrict withdrawal by Owner of any Facility funds in
accordance with the provisions of Paragraph 8.2, below.
8.2. Minimum Cash Balance. At a11 times (subject
to Manager's right, pursuant to Paragraph I.8, above,
to demand working capital from Owner in the event of a
shortfall), Manager shall maintain a minimum cash
balance in the Facility Checking Account equal to the
sum of:
(a) All costs and expenses associated with
the ownership or operation of the
Facility (each a "Facility Expense" and
any two or more or all the
"Facility Expenses"), including, without
limitation, any principal and interest
payments due in connection with any loan
secured by a mortgage on the Facility,
payroll, insurance, supplies, services,
taxes (but excluding all federal, state,
and local income taxes assessed against
Owner), and the Base Management Fee, all
of which Facility Expenses
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are unpaid but will become due and
payable within the ensuing forty-five
(45) days; plus
(b) An amount deemed necessary by Manager to
be adequate for unanticipated
contingencies, which amount initially
shall be $5,000 and which amount shall
be adjusted as reasonably determined by
Manager.
9. MANAGEMENT FEES.
9.1 Construction Supervision Fee. For any services
performed by Manager pursuant to Paragraph I.14, above,
Manager shall receive a construction supervision fee
equal to five percent (5%)of the total amount of
construction costs approved by Owner, due payable
concurrently with the applicable payments to the
construction contractor(s) and materialmen.
9.2 Base Management Fee. Throughout the term of
this Agreement, Manager shall receive a monthly fee
("Base Management Fee") equal to the greater of: i) six
percent (6%) of the gross revenues generated for the
prior month by the Facility; or ii) $5,000, payable on
or before the 10th day of each month. For purposes
hereof, "gross revenues" shall mean all revenues
generated by the Facility, but shall specifically
exclude the proceeds from the sale of any Facility
equipment and any insurance and condemnation proceeds.
9.3 Proration of Fees. If the services of Manager
commence or terminate for any reason (including,
without limitation, those set forth in Paragraph 5
hereof other than on the first day of any calendar
month, the Base Management Fee for such partial month
shall be prorated based upon the number of days for
which services are actually rendered by Manager during
such partial month.
9.4 Payment of Fees. Notwithstanding any other
provision of this Agreement to the contrary, the Base
Management Fee shall be disbursed by Manager to itself
out of the Facility Checking Account prior to the
payment of any other Facility Expenses and prior to the
repayment to Owner of any working capital deposits made
by Owner pursuant to the terms hereof (without limiting
the generality of the foregoing, the Base Management
Fee shall be paid to Manager on a priority basis, and
Manager may disburse the Base Management Fee to itself
without regard for the minimum cash balance
requirement, or the need to demand additional working
capital from Owner, pursuant to Paragraph 8.2, above).
10. INDEMNIFICATION.
10.1 By Manager. Manager shall indemnify, defend,
and hold harmless Owner from and against any loss
incurred by or damage to Owner where such loss or
damage results from the negligent acts or omissions or
the willful misconduct of Manager in performing
Manager's obligations under this Agreement.
10.2 By Owner. Owner shall indemnify, defend and
hold harmless Manager from and against any loss
incurred by or damage to Manager where such loss or
damage results from the negligent act or omissions or
the willful misconduct of Owner in performing Owner's
obligations under the Agreement.
10.3 Survival of Indemnification Obligations.
Notwithstanding any other provision of this Agreement
to the contrary (including, without limitation,
Paragraph 4.3, above), each party's obligation to
indemnify, defend and hold harmless the other party
shall survive the termination of the Term and this
Agreement with respect to the negligent acts or
omissions or willful misconduct
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of the indemnifying party prior to the effective date
of such termination.
11. RIGHT OF FIRST REFUSAL
In the event Owner desires to sell, convey or
lease ("Transfer") the Facility prior to the expiration
of the Term, and Owner receives a bona fide offer to
effect a Transfer of the Facility from a third party
capable of performing such offer ("Transfer Offer")
which Owner desires to accept, Owner shall first give
written notice of such Transfer Offer to Manager. Such
notice shall include all of the material terms and
conditions of the Transfer Offer (e. g. , purchase
price or lease rate, terms of payments, closing date,
▇▇▇▇▇▇▇ money or other deposits, documents required for
Closing, options to purchase). For a period of thirty
(30) days after Manager's receipt of such notice,
Manager shall have the right to elect to acquire the
Facility or interest therein upon the same terms and
conditions as are contained in the Transfer Offer,
which election shall be made by giving written notice
thereof to Owner within such thirty (30) day period. If
Owner does not timely receive Manager's written notice
of Manager's election to acquire the Facility or
interest therein on the terms and conditions of the
Transfer Offer, Owner shall have the right to accept
such Transfer Offer and Transfer the Facility to such
third party in accordance with the terms of the
Transfer Offer free and clear of Manager' s right of
first refusal hereunder. Notwithstanding any other
provision of this Paragraph 11, in no event shall Owner
be entitled to Transfer the Facility to any third party
on terms or conditions materially different from those
set out in the notice of Transfer Offer provided by
Owner to Manager, unless Owner has given Manager
written notice of such materially different terms and
conditions and provided Manager an additional thirty
(30) days in which to elect to effect a Transfer on
such materially different terms and conditions.
12. MISCELLANEOUS
12.1 Notices. All notices required or permitted
pursuant to this Agreement: (a) shall be given in
writing; and (b) delivered by (i) hand delivery, (ii)
registered or certified mail, postage prepaid, (iii)
nationally recognized courier guaranteeing next-
business day delivery), or (iv) facsimile transmission
(with receipt confirmed telephonically by the
recipient). Notice shall be delivered or mailed to the
parties at the following addresses or at such other
places as either party shall designate by giving notice
in accordance with this Paragraph I 2.1.
To Manager: Acorn
Service Corporation
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Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
To Owner: Park Lane
Toledo, L.L.C.
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Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
12.2 Assignment. Except as otherwise provided in
Paragraph 1.6, above, this Agreement shall not be
assigned by either party without the prior written
consent of the non assigning party,
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which consent shall not be unreasonably withheld,
conditioned, delayed.
12.3 Relationship of the Parties. The relationship
of the parties shall be that of Owner and independent
contractor and all acts performed by Manager during the
term hereof as Manager of the Facility shall be deemed
to be performed by Manager in Manager's capacity as an
independent contractor. Nothing contained in this
Agreement is intended to, or shall be construed to,
give rise to or create a partnership or joint venture
or lease between Owner, and Owner's successors and
assigns on the one hand, and Manager; and Manager's
successors and assigns on the other hand.
12.4 Entire Agreement. This Agreement contains the
entire agreement between the parties and shall be
binding upon and inure to the benefit of their
successors and, to the extent permitted hereby, their
assigns, and shall be construed in accordance with the
laws of the State of Washington. This Agreement may not
be modified or amended except by written instrument
signed by both of the parties hereto.
12.5 Headings/Captions. The headings and captions
used in this Agreement are for convenience of reference
only and shall not be construed in any manner to limit
or modify any of the provisions hereof.
12.6 Attorneys' Fees. In the event either party
brings an action to enforce or interpret this
Agreement, the prevailing party in such action shall be
entitled to recover from the other party all costs
incurred in connection therewith, including reasonable
attorneys' fees incurred in the preparation, conduct,
and/or settlement thereof.
12.7 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.
12.8 Cumulative; No Waiver. No right or remedy
herein conferred upon or reserved to either party 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. The failure of
either party 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 Event
of Default. Each and every right and remedy given by
this Agreement to a party may be exercised from time to
time and as often as may be deemed expedient by such
party.
12.9 Authorization for Agreement. The execution
and performance of this Agreement by Owner and Manager
have been duly authorized by all necessary laws,
resolutions or corporate action, and this Agreement
constitutes the valid, binding and enforceable
obligations of Owner and Manager, respectively, in
accordance with its terms.
12.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be
an original but collectively shall constitute but one
and the same Agreement.
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IN WITNESS WHEREOF, the parties have hereto caused
this Agreement to be duly executed, as of the day and
year first above written.
Owner:
PARK LANE TOLEDO, L.L.C.,
a Washington limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Manager
Manager: ACORN SERVICE
CORPORATION, a Washington
corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Its: V.P. New Business
Development
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