EXHIBIT 10.3
INTERIM MANAGEMENT AGREEMENT
THIS INTERIM MANAGEMENT AGREEMENT (this "Agreement") is made as of this
1st day of July, 2000, among Mariner Post-Acute Network, Inc., a Delaware
corporation (formerly known as Paragon Health Network, Inc.) ("Mariner"), AMS
Properties, Inc., a Delaware corporation ("AMS Properties"), GCI Health Care
Centers, Inc., a Delaware corporation ("GCIHCC" and, together with AMS
Properties, collectively, the "Mariner Licensees"), the entities listed on
Schedule A hereto, each of which is a Delaware limited liability company
(collectively, the "Proposed SNH Licensees"), and Five Star Quality Care, Inc.,
a Delaware corporation (the "Manager").
W I T N E S S E T H:
WHEREAS, SPTMNR Properties Trust, a Maryland real estate investment
trust ("SPTMNR"), is the owner of all of the real property, buildings, plant and
equipment and certain of the personal property used in connection with the
operation of the skilled nursing, intermediate care or residential facilities
listed on Schedule B (each a "Facility" and collectively, the "Facilities"); and
WHEREAS, SPTMNR currently leases the Facilities to the Mariner
Licensees; and
WHEREAS, the Mariner Licensees hold the licenses to operate the
Facilities; and
WHEREAS, pursuant to a Settlement Agreement, dated as of March 20, 2000
(the "Settlement Agreement"), among Mariner, the Mariner Licensees, Senior
Housing Properties Trust, a Maryland real estate investment trust ("SNH"),
SPTMNR, the Proposed SNH Licensees and the Manager, the Mariner Licensees have
requested SPTMNR, and SPTMNR has agreed, to accept a surrender (through SPTMNR's
designees, the Proposed SNH Licensees), of the Mariner Licensees' lease of the
Facilities, subject to, and upon, the terms and conditions contained therein;
and
WHEREAS, in connection therewith, the Proposed SNH Licensees and/or the
Manager are submitting the applications, filings and other documentation
necessary to receive all governmental licenses, permits, approvals,
authorizations, provider agreements and certificates and determinations of need
in order for the Proposed SNH Licensees to operate the Facilities as licensees
and to receive Medicare and Medicaid reimbursement for the services provided
therein (such licenses, permits, approvals, authorizations, provider agreements,
and certificates and determinations of need are hereafter referred to
individually, as a "Necessary License" and collectively, as the "Necessary
Licenses"); and
WHEREAS, the SNH Licensees and the Manager would assume full
responsibility for the operation of the Facilities on the date hereof but for
the fact that the Mariner Licensees are the only entities which are licensed to
operate the Facilities as of the date hereof;
WHEREAS, in light of the foregoing, the Settlement Agreement
contemplates that the SNH Licensees, the Mariner Licensees, Mariner and the
Manager shall enter into an interim
arrangement in order to accomplish the orderly transition of the operations of
the Facilities from the Mariner Licensees to the Proposed SNH Licensees and the
Manager and that during such transition period the Mariner Licensees shall
retain ultimate authority and control over the Facilities as licensees;
WHEREAS, in accordance with the foregoing, the Proposed SNH Licensees,
Mariner, the Mariner Licensees and the Manager desire to enter into certain
arrangements regarding the management of the Facilities and, more specifically,
to provide (i) for the Mariner Licensees to continue to direct and control the
operation of the Facilities subject to the terms and conditions hereof, (ii) for
the Mariner Licensees to retain Manager to assume day to day operational
responsibility (subject to the ultimate authority and control of the Mariner
Licensees) for the Facilities pending, and in anticipation of, the receipt by
the Proposed SNH Licensees or the Manager of the Necessary Licenses (the date on
which any Proposed SNH Licensee or the Manager shall have received all such
Necessary Licenses with respect to a Facility being referred to herein as such
Facility's "SNH Licensing Date"), and (iii) for Mariner, on behalf of the
Mariner Licensees and the SNH Licensees, to continue to provide certain services
to the Facilities on behalf of, and in consultation and cooperation with, the
Manager, all as hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and the agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Mariner Licensee; Interim Occupancy Agreements. Each Facility shall continue
to be operated subject to the direction and control of the relevant Mariner
Licensee until such Facility's SNH Licensing Date and, in connection therewith,
each such Mariner Licensee (i) shall retain ultimate authority over the
business, policies, operations and assets of the Facility, (ii) shall remain the
responsible licensee of such Facility and, as such, be fully liable and legally
accountable at all times to all patients, governmental agencies and third
parties for all patient care and funds, and all other aspects of the operation
and maintenance of the Facility, and (iii) shall perform those general and
specific duties described in Sections 4 and 5 hereof.
In order to permit the foregoing, each Mariner Licensee is,
simultaneously herewith, entering into an Interim Occupancy Agreement
(collectively, the "Occupancy Agreements"), in the form attached hereto as
Schedule C, with the relevant Proposed SNH Licensee, pursuant to which the
Proposed SNH Licensee shall grant to such Mariner Licensee the right to occupy
such Facility and use certain related personal property for purposes of
exercising its rights, duties and obligations hereunder.
Mariner, the Mariner Licensees, the Proposed SNH Licensees and the
Manager agree that, subject in all events to the provisions of the first
paragraph of this Section 1, the SNH Proposed Licensees or the Manager may from
time to time, notify Mariner that the Manager is prepared to provide any one or
more of those services (the "Designated Services") designated in Schedule D
attached hereto (the "Designated Services Schedule") and any of those general
and specific duties related thereto described in Sections 4 and 5 hereof, with
respect to any one or more of the Facilities, and from and after the date
specified in such notice, the Mariner Licensee shall delegate to the Manager,
and the Manager shall assume and perform, such Designated
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Services and general and specific duties in accordance with the requirements of
this Agreement. Mariner, the Mariner Licensees, the Proposed SNH Licensees and
the Manager shall reasonably cooperate in the transition of the responsibility
for such Designated Service(s) to the Manager, subject to the continued
authority and responsibility of the Mariner Licensee referred to herein.
The Mariner Licensees, the Proposed SNH Licensees and the Manager
acknowledge and agree that (i) it would be the desire of all parties that the
Manager assume all of the operations of the Facilities on the date hereof, but
that the interim arrangement contemplated hereby is necessary in order to
accomplish the orderly transition of the operations of the Facilities from the
Mariner Licensees to the Proposed SNH Licensees and the Manager, (ii) the
parties hereto have reviewed and agreed upon goals and parameters of operation
for the term hereof which are in the best interests of the Facilities and the
residents therein, (iii) it is the intent of the parties hereto that day-to-day
operations be conducted in a manner consistent with the agreed upon goals and
parameters, and (iv) if, for any reason, the day-to-day operations cannot be
conducted consistent with those goals and parameters, or if the goals and
parameters become inconsistent with the best interests of the Facilities and
residents, the Mariner Licensees shall advise the Proposed SNH Licensees and the
Manager and the parties shall endeavor to agree upon appropriate revisions
thereto.
Mariner, the Proposed SNH Licensees and the Manager acknowledge and
agree that Mariner has agreed in this Agreement that Mariner may continue to
provide certain services after the SNH Licensing Date. Mariner, the Proposed SNH
Licensees and the Manager acknowledge and agree, however, that, from and after
the SNH Licensing Date with respect to a Facility, the relevant Proposed SNH
Licensee shall direct and control the operations of such Facility and, in
connection therewith, shall have ultimate authority over the business, policies,
operation and assets of the Facility and be the responsible licensee of such
Facility and, as such, be fully liable and legally accountable at all times to
all patients and governmental agencies for all patient care and funds at such
Facility, and all other aspects of the operation and maintenance of such
Facility.
2. General Duties of the Manager. Subject to the ultimate authority and control
of the Mariner Licensees, the Manager shall manage and supervise the day-to-day
operation of the Facilities with the objective of providing skilled nursing,
intermediate care and residential services to patients and residents of the
Facilities and to carry out general management functions with respect to the
Facilities, including, but not limited to, the following: supervise the
performance of all administrative functions as may be necessary in the
management and operation of the Facilities; select, hire or contract for, train,
supervise, monitor the performance of, and terminate or fire, all personnel
involved in the administration and day-to-day operations of the Facilities,
including, without limitation, professional personnel, custodial, cleaning,
maintenance, and other operational personnel, and secretarial and bookkeeping
personnel; maintain patients' medical records in accordance with all applicable
state and Federal requirements; represent the Facilities in their dealings with
regulatory authorities, patients, personnel, agents for collection, insurers
and, at the request of the Proposed SNH Licensees, creditors; market the
services of the Facilities; manage and supervise the admission and discharge of
residents as required by state and Federal laws; and generally see to the
operations and management of the Facilities, the marketing of their services,
planning for future operations, and the establishment and implementation of
policies for the Facilities.
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3. Specific Duties of the Manager. Subject to the ultimate authority and control
of the Mariner Licensees, the Manager shall have the following specific duties:
3.1 Employees. The Manager shall recruit, evaluate, and select
qualified nursing home administrators who shall be responsible for the
functional operation of the Facilities and supervision of personnel at the
Facilities, on a day-to-day basis, as well as all on-site professional,
custodial, food service, cleaning, maintenance, clerical, secretarial,
bookkeeping, management, collection, and other employees for the day-to-day
operations of the Facilities. Such administrators and all such other personnel
shall be employees of the Manager and, subject to the provisions of Section 7
hereof (providing for the Proposed SNH Licensees to pay expenses set forth in
the Expense Statement (including, without limitation, those expenses specified
in Section 7.1(a)) the Manager shall have full responsibility for payment of
their wages, salaries, and other compensation and benefits. The Manager shall
establish such personnel policies, wage structures, and staff schedules as they
deem necessary and advisable in accordance with applicable law. The Manager
shall have authority to continue to employ and to discharge employees. For
purposes of those Facilities located in the State of California, this Agreement
is intended to serve as an outside resources contract pursuant to California
Administrative Code Title 22, Section 72511 and a copy of this Agreement shall
remain at each such Facility and shall remain readily available for inspection
and review by the Department of Health Services in accordance with Section 72511
as aforesaid.
3.2 Purchasing. In consultation with Mariner and the Mariner Licensees,
the Manager will purchase, in the name, and for the account, of the Proposed SNH
Licensees and/or the Manager, all necessary supplies, foodstuffs, materials,
appliances, tools, and equipment customarily used in the operation of the
Facilities. The Manager shall use commercially reasonable efforts to limit
purchasing costs and to maintain such costs at a level reasonably calculated to
allow the Facilities to operate profitably. The Manager shall arrange contracts
for electricity, gas, telephone, and any other utility or service necessary to
the operation of the Facilities, in each case in the name, and for the account,
of the Proposed SNH Licensees and/or the Manager. The Manager shall, on its own
behalf and/or on behalf of the owner of the buildings and real property in and
on which the Facilities are located (the "Real Property Owner"), arrange for and
supervise the making of any necessary repairs, alterations, and improvements to
the Facilities, provided that in the case of any repair, alteration or
improvement, the cost of which exceeds $5,000, the Manager shall obtain the
prior approval of the Proposed SNH Licensee, except that no such prior approval
shall be required if the expenditure is made under circumstances reasonably
requiring emergency action. The Manager shall prepare such certifications as to
expenses incurred in the operation of the Facilities as may be required in order
to comply with applicable law and regulations, including, without limitation,
law and regulations applicable to preparation and submission of cost reports.
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3.3 Marketing. In consultation with the Mariner Licensees, the Manager
shall use commercially reasonable efforts to market the services of the
Facilities in order to maintain the patient or resident census at the Facilities
in such numbers and of such categories as, in Manager's judgment, will tend to
maintain the financial stability of the Facilities and to ensure compliance with
applicable laws, regulations, orders and judgments applicable to the Facilities.
The Manager may design and implement programs with third party payors, such as
insurance companies, federal agencies and state and local agencies, for services
to patients on a contract basis, for the purpose of improving the financial
stability of the Facilities.
3.4 Liaison with Agencies. In consultation with the Proposed SNH
Licensees, Mariner and the Mariner Licensees, the Manager shall appear in,
prosecute and defend all formal and informal proceedings before any and all
local, state and federal agencies which regulate the Facilities. Each of the
Mariner Licensees, the Proposed SNH Licensees and Manager shall promptly inform
the others of the commencement of any such proceedings known to it which may
have a material impact upon the operation of the Facilities or which affect
reimbursement for services provided in or by the Facilities, including
challenging any findings of violations or the creation of a duty to correct.
3.5 Insurance. The Manager shall obtain on behalf of itself, the
Proposed SNH Licensees, Mariner, the Mariner Licensees and the Real Property
Owners for each Facility, as their interests may appear, all customary
liability, fire and extended coverage, professional or malpractice liability and
worker's compensation insurance covering the Facilities, any equipment used in
connection with the Facilities, and the Facilities' employees, in such amounts
and with such deductibles and other provisions as may be reasonably agreed upon
by the Manager, the Proposed SNH Licensees, Mariner, the Mariner Licensees and
the Real Property Owners.
3.6 Technical and Professional Services. In consultation with the
Proposed SNH Licensees, Mariner and the Mariner Licensees, the Manager shall
secure such engineering, legal, and other specialized technical and professional
services as may be necessary to advise or to represent the Manager, the Proposed
SNH Licensees, Mariner, the Mariner Licensees and the Real Property Owners for
each Facility, in connection with any matter involving or arising out of the
operation of the Facilities or the conduct of the Facilities.
3.7 Necessary Licenses. Upon receipt by the relevant Proposed SNH
Licensee or the Manager of the Necessary Licenses with respect to a Facility,
the Manager shall give the relevant Mariner Licensee prompt written notice
thereof.
4. General Duties of Mariner and the Mariner Licensees. Mariner shall provide
accounting, purchasing and bill payment functions for the Facilities; maintain
systems of accounts and supervise the maintenance of ledgers and other primary
accounting records with respect to the Facilities; supervise the financial
affairs of the Facilities; establish and supervise the implementation of
operating budgets, and establish and administer financial controls over the
operations and management of the Facilities; develop and establish financial
standards and norms by which the income, costs, and operations of the Facilities
may be evaluated; operate, maintain and administer the information management
systems of the Facilities; furnish reports and economic and statistical data in
connection with or relative to the management of the Facilities in order to
comply with applicable laws and regulations; prepare and file with
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applicable state Medicaid programs and the Medicare program and all other public
and private third party reimbursement programs (collectively, "third party
payors") all required cost reports; maintain listings of all residents of the
Facilities and the persons or third party payors responsible for their charges;
on behalf of the SNH Entities, disburse and collect the funds of the Facilities
in accordance with the provisions of this Agreement, pay the debts and fulfill
the obligations of the Facilities incurred subsequent to the Effective Time (as
hereafter defined); maintain payroll records and shall prepare and process
employee payrolls, and returns of withholding taxes in accordance with current
payroll schedules in place at each Facility; oversee billing (in conjunction
with the Manager's employees at each Facility); and oversee the administration
of trust funds for the benefit of residents of the Facilities and the
preparation and filing of all accounts for such funds required by applicable law
(in conjunction with the Manager's employees at each Facility).
5. Specific Duties of Mariner and the Mariner Licensees. Mariner shall have the
following specific duties:
5.1 Purchasing. Mariner shall cooperate with the Manager (and assist
the Manager in its efforts to) purchase, in the name, and for the account, of
the Proposed SNH Licensees and/or the Manager, all necessary supplies,
foodstuffs, materials, appliances, tools, and equipment customarily used in the
operation of the Facilities and shall make available to the Manager any
centralized purchasing system established by Mariner or the Mariner Licensees
for other facilities under its or their operation or management (including,
without limitation, any national accounts) in order to minimize costs.
5.2 Bookkeeping. Mariner shall establish and maintain a record and
bookkeeping system for the operation and conduct of the Facilities in accordance
with generally accepted accounting principles. Full books of account with
entries of all receipts and expenditures of the Facilities shall be open for
inspection by representatives of Proposed SNH Licensees and Manager upon
reasonable notice and at reasonable times.
5.3 Financial Reports. Mariner shall: (a) as soon as reasonably
possible after the close of each calendar month, furnish to the Proposed SNH
Licensees and the Manager a statement of income for the month and for the year
to date, together with a detailed statement of billings, cash receipts, cash
disbursements, accounts payable and accounts receivable (in hard copy and, to
the extent possible, in electronic format); (b) in the event the Proposed SNH
Licensee or the Mariner Licensee is required by applicable law, regulations or
the provisions of any material contract to which it is a party or by which it is
bound or at such other time as the Proposed SNH Licensees may elect in their
reasonable discretion, to conduct an audit of the Facilities' financial
performance, make available all books and records of the Facilities on a timely
basis and cooperate fully with any auditors or accountants selected by Proposed
SNH Licensee; (c) as soon as reasonably possible after the close of each
applicable reporting period for rate setting purposes, and not later than the
applicable deadline, prepare and submit a cost report for each Facility (and
including in any event, any short-year cost report required to be submitted by
the Mariner Licensee or Proposed SNH Licensee), showing the costs and
expenditures relating to resident care for such Facility and such other
information as is required by the applicable governmental authority, each such
report being in all material respects (including as to form) in compliance with
the requirements of such applicable governmental
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authority; and (d) cooperate with and furnish information to each Proposed SNH
Licensee and Manager in a timely manner in connection with the preparation of
applications by such Proposed SNH Licensee for any Necessary Licenses with
respect to the Facilities.
5.4 Consultative Services. Mariner and the Mariner Licensees shall
provide oversight and consultative services to Manager with respect to the
operations of the Facilities in areas including, without limitation, quality
assurance, clinical programs and support, regulatory affairs, marketing and
other functions currently supported by Mariner's regional operations staff (the
"Consultative Services"). Neither the SNH Licensees nor the Manager may
terminate the Consultative Services until the SNH Licensing Date.
5.5 Collections, Accounts, Disbursements and Termination Accounting.
(a) Billing. Mariner shall (in conjunction with the Manager's
employees at each Facility) prepare and submit bills for all moneys owing,
whether from patients or third party payors, for services provided by or at the
Facilities at any time, whether prior to 12:01 a.m. on July 1, 2000 (the
"Effective Time") or after the Effective Time.
(b) Collection of Accounts Receivable. Mariner and the Mariner
Licensees acknowledge that, notwithstanding anything to the contrary contained
in the Settlement Agreement, from and after the Effective Time, (i) the Proposed
SNH Licensees shall, to the extent permitted by applicable law, own all accounts
receivable which relate to or arise out of services provided by or at the
Facilities from or after the Effective Time (the "Post-Effective A/R"), (ii)
Mariner shall, with the assistance of Facility-level personnel, make and effect
collections of all Post-Effective A/R, (iii) Mariner shall establish new bank
accounts (the "New A/R Accounts") in the name of the Proposed SNH Licensees on
or prior to the Effective Time (or as soon as practicable thereafter). On the
fifth (5th) day following notice thereof by the Proposed SNH Licensees to
Mariner and the Mariner Licensees (but no sooner than the earlier to occur of
the SNH Licensing Date or the forty-fifth (45th) day following the Effective
Time), Mariner and the Mariner Licensees shall instruct all Third Party Payors
and other Persons (as such terms are defined in the Settlement Agreement) that
directly deposit monies into the existing bank accounts (the "Existing A/R
Accounts") with respect to the Retained Facilities to terminate such direct
deposit and commence depositing such monies into the New A/R Accounts as soon as
is practicable thereafter (and Mariner shall take such further action as may be
reasonably necessary to cause such Third Party Payors and other Persons to
comply with such instructions so that all Post-Effective A/R is deposited into
the New A/R Accounts as soon as is practicable thereafter). From and after the
Effective Time, monies, checks, drafts or other instruments or items received as
payment (collectively, "Remittances") for collected accounts receivable shall be
processed as follows: (x) any Remittances solely comprised of collections of
accounts receivable which relate to or arise out of services provided by or at
the Facilities prior to the Effective Time (the "Pre-Effective A/R") shall be
deposited into the Existing A/R Accounts, (y) any Remittances solely comprised
of collections of Post-Effective A/R shall be endorsed and deposited into the
New A/R Accounts, and (z) any Remittances comprised of both Pre-Effective A/R
and Post-Effective A/R (the "Commingled Remittances") shall be deposited into
the Existing A/R Accounts during the first forty-five (45) days following the
Effective Time and into the New A/R Accounts after the 45th day following the
Effective Time.
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Mariner shall prepare a weekly reconciliation of Commingled
Remittances, identifying the amount of Pre-Effective A/R and Post-Effective A/R
deposited into the Existing A/R Accounts and the New A/R Accounts during the
previous week ending on Friday. The amount of Pre-Effective A/R deposited into
the New A/R Accounts shall be netted against Post-Effective A/R deposited into
the Existing A/R Accounts. If the amount of Pre-Effective A/R deposited into the
New A/R Accounts is greater than the amount of Post-Effective A/R deposited into
the Existing A/R Accounts, then such net amount shall be remitted via wire
transfer by the SNH Licensees to Mariner within five (5) business days of the
end of the previous week. If the amount of Post-Effective A/R deposited into the
Existing A/R Accounts is greater than the amount of Pre-Effective A/R deposited
into the New A/R Accounts, then such net amount shall be remitted via wire
transfer by Mariner to the SNH Licensees within five (5) business days of the
end of the previous week.
The SNH Entities, Mariner and the Mariner Licensees acknowledge and
agree that the Mariner Licensees shall continue to own the Pre-Effective A/R. To
the extent either party receives any accounts receivable of the other party,
both parties acknowledge that the party receiving any payment belonging to the
party shall hold such payment in trust on behalf of the other party until such
payment is remitted to the other party and that neither party shall have any
right of offset with respect to accounts receivable.
(c) Books and Records. During the term of this Agreement, Mariner
shall keep accurate and complete books and records of all receipts with respect
to all billing, accounts receivable, all deposits and other transactions whether
to the Existing A/R Accounts, the New A/R Accounts, or to other checking
accounts, which books and records shall be made available to the SNH Licensees
and the Manager upon request, and after termination of this Agreement shall make
such books and records available to the Proposed SNH Licensees and the Manager
to the extent necessary to enable the Proposed SNH Licensee and the Manager to
comply with all applicable laws and regulations, including regulations governing
preparation and submission of cost reports. Mariner shall timely prepare and
file any cost reports which applicable laws and regulations require that they
file after the termination of this Agreement.
5.6 Patient Trust Accounts. At such time as a Proposed SNH Licensee has
received all Necessary Licenses with respect to a Facility and the Manager has
given the Mariner Licensee notice as provided in Section 3.7, the Mariner
Licensee will transfer the patient trust accounts held for the benefit of
residents of such Facility to the Proposed SNH Licensee (and in connection
therewith shall restore any deficiencies therein), together with all records and
an accounting regarding such accounts.
6. Fees. Manager and Mariner shall be compensated for services rendered herein
as follows:
6.1 Manager's Fee. Each Proposed SNH Licensee of each Facility shall
pay the Manager in consideration of the performance of its duties hereunder a
fee (the "Manager's Fee") on a Facility-by-Facility basis on or prior to the
fifth (5th) day following the end of each calendar month during the term hereof,
as follows: (i) for the first three (3) months of the term hereof, in an amount
equal to all costs and expenses incurred by, or allocable to, the performance by
the Manager in connection with the performance of its duties hereunder during
such calendar month,
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and (ii) thereafter, in an amount equal to five percent (5%) of net patient
revenues for such Facility for such calendar month.
6.2 Mariner's Fee. Each Proposed SNH Licensee of each Facility shall
pay to Mariner in consideration of the performance of its duties hereunder a fee
("Mariner's Fee") on a Facility-by-Facility basis for each calendar month during
the term of this Agreement in an amount equal to the product of (A) the sum of
the Designated Services Percentages, as specified in the Designated Services
Schedule, attributable to the Designated Services being performed by the
applicable Mariner Licensee at such Facility for such month and (B) the amount
of net patient revenues of such Facility for such month.
Until the Agreed Deficiency shall have been reduced to zero (0),
payment of Mariner's Fee shall be made by dollar-for-dollar reduction of the
Reduced Deficiency (as such term is defined in the Settlement Agreement).
Notwithstanding anything to the contrary contained in this Section 6.2, in each
of the first three (3) months of the term hereof, Mariner's Fee shall be not
less than Four Hundred Thousand ($400,000) (regardless of the amount of net
patient revenues at the Facilities for such month or whether the Manager shall
have elected to discontinue Mariner's provision of any services specified herein
during such period) and the aggregate amount of Mariner's Fees shall in no case
be less than the Agreed Deficiency.
As used in this Agreement, "net patient revenues" shall mean, for any
period, the aggregate amount of all revenues (determined in accordance with
generally accepted accounting principals, consistently applied), received by, or
by reason of the operation of, such Facility during such period, but excluding
(a) revenues from professional fees or charges by physicians and unaffiliated
providers of ancillary services to the extent such charges are paid over to, or
separately billed by, such physicians and unaffiliated providers, (b)
non-operating revenues, (c) revenues attributable to services provided off-site
to non-patients, and (d) all revenues, if any, attributable to child care
services provided primarily to employees of such Facilities, but in all events
excluding any revenues generated for services provided to patients referred by
any Mariner Entity.
7. Expenses.
7.1 During the period from and after the Effective Time to, but
excluding, the date of termination of this Agreement, for each Facility, Mariner
shall provide the Proposed SNH Licensees and the Manager with a weekly statement
of expenses of the type listed below to the extent incurred in the operation and
management of such Facility (the "Expense Statements") accompanied by such
documentation as the Proposed SNH Licensee and/or the Manager shall reasonably
request:
(a) salary and expenses (including, without limitation, payroll
taxes, workers' compensation, costs of employee benefit plans (or such portion
thereof as is properly allocable to such Facility), travel, insurance, and
fidelity bonds) of employees at such Facility, including, without limitation,
administrative, professional, custodial, food service, cleaning and maintenance,
operational, secretarial and bookkeeping personnel;
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(b) all supplies and equipment necessary and desirable for
operation of the such Facility as a skilled nursing, intermediate care and
residential facility; food; fuel; kitchen and food service equipment; linens;
beds; furniture; clothing and all other supplies and equipment used in supplying
services to patients;
(c) expenses connected directly or indirectly with the design,
acquisition, disposition, lease, occupancy, ownership or operation of real and
personal property devoted, used or consumed in the business of such Facility,
including, without limitation, maintenance, repair, and improvement of the
Facilities; and
(d) all other costs, expenses and liabilities arising out of the
operation, maintenance and management of the Facilities, including, without
limitation, fees of professionals engaged to fulfill Manager's obligations under
Section 3.6, but excluding those costs, expenses and liabilities arising out of
the Manager's gross negligence or willful misconduct.
7.2 The following expenses of Mariner shall be for the sole account of
Mariner and shall not be subject to reimbursement hereunder: (a) overhead and
ordinary administrative expenses, salary (including, without limitation, payroll
taxes, workers' compensation, costs of employee benefit plans, travel, insurance
and fidelity bonds) of financial, accounting and other personnel employed by
Mariner to provide regional quality assurance consulting, centralized billing,
collection, bill paying, accounting, record keeping, information management,
purchasing, personnel and policy planning services to any Facility; and (b) any
losses, cost and expenses under Section 13.
7.3 The Proposed SNH Licensees shall cause the Manager to establish a
bank account under its name and control and to deposit and maintain a minimum
balance therein of $100,000. The Mariner Licensees and Mariner shall have
signing authority with respect to such account and weekly, upon approval of the
Expense Statement, the Manager shall fund such account with an amount sufficient
(over and above the minimum balance) to fund and for the purpose of paying the
expenses set forth in the Expense Statement. If Mariner or any Mariner Licensee
advances its own funds for any approved Expense Statement expense, the Manager
and the Proposed SNH Licensees shall promptly reimburse Mariner or such Mariner
Licensee therefor.
8. Access to Records. For the time and to the extent required by applicable law,
including, without limitation, Section 1861(v)(1)(I) of the Social Security Act,
Mariner and the Mariner Licensees shall retain, and shall permit the Comptroller
General of the United States, the U.S. Department of Health and Human Services,
and their respective duly authorized representatives, and duly authorized state
representatives, access to examine or copy this Agreement and such books,
documents, and records as are reasonably necessary to verify the nature and
extent of goods and services supplied and the costs of the goods and services
supplied, and the payments claimed under this Agreement. In the event Mariner or
any Mariner Licensee provides any of its services under this Agreement pursuant
to a subcontract and if (i) the services provided pursuant to the subcontract
have a value or cost of $10,000 or more over a twelve (12) month period and (ii)
the subcontract is with a related organization, then Mariner and such Mariner
Licensee agree that the subcontract shall contain a clause requiring the
subcontractor to retain and allow access to its records on the same terms and
conditions as required by such Mariner Licensee.
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9. Duty of Mariner; Prohibited Transactions. Mariner and the Mariner Licensees
shall render the services called for hereunder in good faith. Other than
Mariner's Fee, neither Mariner nor any Mariner Licensee, or any person, firm or
corporation which, directly or indirectly owns or controls, is owned or
controlled by, or is under direct or indirect common ownership or control with
Mariner or any Mariner Licensee or any person related by blood or marriage
within the third degree to persons in such control (an "Affiliate"), shall
receive any remuneration (other than reimbursements and other payments expressly
provided for herein), whether direct or indirect, for any purchases of goods or
services made on behalf of Mariner, any Mariner Licensee, the Proposed SNH
Licensees or the Manager, and neither Mariner nor any Mariner Licensee, or any
of its Affiliates shall markup, increase the price, or obtain any premium for
goods or services purchased by any Mariner or any Mariner Licensee on behalf of
or for the benefit of Mariner or any Mariner Licensee, the Proposed SNH
Licensees or the Manager.
10. Relationship of Parties. No party to this Agreement is a partner or joint
venturer with any other party, and nothing herein shall be construed so as to
make them such partners or joint venturers or impose on any of them any
liability as partners or joint venturers.
11. Term and Termination.
11.1 The term of this Agreement shall commence at the Effective Time
and shall continue in full force for twelve (12) months unless earlier
terminated as provided below, and thereafter, from month to month thereafter
unless terminated upon not less than thirty (30) days' prior written notice from
the Proposed SNH Licensees or the Mariner Licensees to the other.
Subject to the provisions of the first paragraph in Section 1 of this
Agreement, the Proposed SNH Licensees shall have the further right from time to
time to require Mariner to discontinue provision of any or all services
hereunder to any one or more of the Facilities upon not less than thirty (30)
days' prior written notice to the relevant Mariner Licensee.
The Proposed SNH Licensees and the Manager shall further have the right
to terminate the Manager's provision of any or all, services hereunder to any
one or more of the Facilities upon not less than sixty (60) days prior written
notice to the other.
If there is a final adverse determination with respect to any Necessary
Licenses, provided that the Proposed SNH Licensee shall have exhausted all
appeals with respect thereto, this Agreement shall terminate with respect to the
Facility(ies) which would be affected.
11.2 From and after the effective date of termination of this Agreement
in accordance with Section 11.1 with respect to any party hereto (a "Terminated
Party"), the Terminated Party shall not be entitled to compensation for further
services hereunder (and, in the case of the discontinuation of services at a
Facility in accordance with Section 11.1, from and after the effective date of
such discontinuance, the Terminated Party shall not be entitled to compensation
for further services with respect to such Facility). Upon termination or
discontinuance, the Terminated Party shall forthwith:
(a) pay over to the relevant Proposed SNH Licensee all collections
of Post-Effective A/R received by the Terminated Party pursuant to this
Agreement;
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(b) deliver to the relevant Proposed SNH Licensees and, if
applicable, the Manager a full accounting, including a statement showing all
payments collected by it and a statement of all money held by it, covering the
period following the date of the last accounting furnished to them; and
(c) deliver to the relevant Proposed SNH Licensees and, if
applicable, the Manager, as the case may be, all property and documents of any
of them (including, without limitation, health care and other patient records)
then in the custody of the Terminated Party.
12. Notices. All notices and other communications provided for hereunder shall
be in writing (including telecopy communication) and mailed, telecopied or
delivered addressed as follows:
(a) if to the Manager:
Five Star Quality Care, Inc.
400 Centre Street
Newton, MA 02458
Attention: Treasurer
Telecopy No.: 617-796-8349
(b) with copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Nancy S. Grodberg, Esq.
Telecopy No.: 617-338-2880
(c) if to the Mariner:
Mariner Post-Acute Network, Inc.
One Ravinia Drive, Suite 1500
Atlanta, Georgia 30346
Attention: Associate General Counsel
Telecopy No. 770-698-8199
(d) if to Mariner Licensees:
AMS Properties, Inc.
One Ravinia Drive, Suite 1500
Atlanta, Georgia 30346
Attention: Associate General Counsel
Telecopy No. 770-698-8199
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and to:
GCI Health Care Centers, Inc.
One Ravinia Drive, Suite 1500
Atlanta, Georgia 30346
Attention: Associate General Counsel
Telecopy No. 770-698-8199
(e) If to the Proposed SNH Licensees:
SHOPCO-AZ, LLC
400 Centre Street
Newton, MA 02458
Attention: Treasurer
Telecopy No.: 617-796-8349
SHOPCO-CA, LLC
400 Centre Street
Newton, MA 02458
Attention: Treasurer
Telecopy No.: 617-796-8349
SHOPCO-COLORADO, LLC
400 Centre Street
Newton, MA 02458
Attention: Treasurer
Telecopy No.: 617-796-8349
SHOPCO-WI, LLC
400 Centre Street
Newton, MA 02458
Attention: Treasurer
Telecopy No.: 617-796-8349
or to such other address as may hereafter be designated by any party for such
other purpose, and shall be effective upon receipt if hand delivered, when
telecopied, if transmitted by telecopier or upon the expiration of the fifth
Business Day after being deposited in the mails, if mailed.
13. Indemnification.
(a) Mariner Licensees' Indemnification. Mariner and the Mariner
Licensees, jointly and severally, shall protect, indemnify and hold harmless
each of the Proposed SNH Licensees, the Manager and their respective agents,
employees, officers, directors, partners, members, trustees, attorneys,
successors or assigns (hereafter the "SNH Indemnitees," and when referred to
singly, an "SNH Indemnitee") for, from and against any and all debts,
obligations, damages, penalties, liabilities, liens, claims, causes of action,
administrative orders or notices, costs, fines, penalties or expenses
(including, without limitation, reasonable attorney's fees and expenses actually
incurred) to the maximum extent permitted by law imposed upon, incurred by
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or asserted against any Indemnitee and arising in connection with any act,
omission or obligation of any Mariner Licensee or Mariner hereunder, under its
Interim Occupancy Agreement, or otherwise in connection with the Mariner
Licensees' or Mariner's activities in operating or overseeing the operation of
any of the Facilities. Mariner and the Mariner Licensees, at their expense,
shall contest, resist and defend any such claim, action or proceeding asserted
or instituted against any SNH Indemnitee or may compromise or otherwise dispose
of the same, with the relevant SNH Indemnitee's prior written consent (which
consent may not be unreasonably withheld or delayed).
(b) Proposed SNH Licensees' and Manager's Indemnification. The
Proposed SNH Licensees and the Manager (collectively referred to as the SNH
Indemnitors), jointly and severally, shall protect, indemnify and hold harmless
each of the Mariner Licensees and their respective agents, employees, officers,
directors, partners, members, trustees, attorneys, successors and assigns
(hereafter the "Mariner Indemnitees" and when referred to singly, "Mariner
Indemnitee") for, from and against any and all debts, obligations, damages,
penalties, liabilities, liens, claims, causes of action, administrative orders
or notices, costs, fines, penalties, or expenses (including, without limitation,
reasonable attorney's fees and expenses actually incurred) to the maximum extent
permitted by law imposed upon, incurred by or asserted against any Mariner
Indemnitee and arising in connection with any act, omission or obligation of any
SNH Indemnitor hereunder, under the Interim Occupancy Agreements, or otherwise
in connection with the SNH Parties' activities in operating or overseeing the
operation of any of the Facilities. The SNH Parties', at their expense, shall
contest, resist and defend any such claim, action or proceeding asserted or
instituted against any Mariner Indemnitee or may compromise or otherwise dispose
of the same, with the relevant Mariner Licensee's prior written consent (which
consent may not be unreasonably withheld or delayed).
The provisions of this Section 13 shall survive the termination of this
Agreement.
14. Miscellaneous.
14.1 Amendments. This Agreement shall not be changed, modified,
terminated, or discharged in whole or in part except by an instrument in writing
signed by each of the parties hereto or their respective successors or assigns.
14.2 Non-Assignability. This Agreement shall not be assigned by any
party without the consent of the other party and this Agreement shall be binding
upon and shall inure to the benefit of consented to successors and assigns.
14.3 Governing Law. This Agreement shall be governed by, interpreted,
construed, applied and enforced in accordance with the laws of the Commonwealth
of Massachusetts applicable to contracts between residents of the Commonwealth
of Massachusetts which are to be performed entirely within the Commonwealth of
Massachusetts, regardless of (i) where this Agreement is executed or delivered;
or (ii) where any payment or other performance required by this Agreement is
made or required to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or (iv) where any
action or other proceeding is instituted or pending; or (v) the nationality,
citizenship, domicile, principal place of business or jurisdiction of
organization or domestication of any party; or (vi) whether the laws of
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the forum jurisdiction otherwise would apply the laws of the jurisdiction other
than the Commonwealth of Massachusetts; or (vii) any combination of the
foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
the Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in the Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
14.4 Entire Agreement. This Agreement, together with the other
agreements contemplated by, referred to in, or contemplated by agreements
referred to herein, together constitute the entire agreement of the parties
hereto with respect to the subject matter hereof and supersede and cancel any
preexisting agreements with respect to such subject matter.
14.5 Attorney's Fees and Costs. If any action is brought for the
enforcement of this Agreement, or because of a dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action in addition to any other relief to which it
may be entitled.
14.6 Confidentiality. The parties agree not to disclose or permit their
respective representatives, attorneys, auditors or agents to disclose, except as
may be required by law or performance hereunder, any confidential non-public
information of the others which is obtained by any of them in connection with
the transactions contemplated by this Agreement.
14.7 Cooperation; Commercially Reasonable Efforts. The parties shall
cooperate in good faith in connection with all actions to be taken to consummate
the transactions contemplated by, and to enforce the rights created by and
perform the responsibilities imposed by, this Agreement and in order to assure
compliance with Federal, state and local laws, rules and regulations. The
parties agree to execute such amendments, modifications or supplements to this
Agreement or any other agreements between or among any of the parties hereto,
necessary or appropriate to assure such compliance.
14.8 Responsibility for Compliance with Law. During the term of this
Agreement, each Mariner Licensee will keep in full force and effect all
licenses, permits, approvals, authorizations, provider agreements, and
certificates or determinations of need necessary for such Mariner Licensee to
occupy and operate its Facilities and to receive Medicare and Medicaid
reimbursement for services provided therein and the Mariner Licensees will
cooperate with Proposed SNH Licensees in connection with the Proposed SNH
Licensees obtaining provider agreements to ensure there is no period during
which neither a Mariner Licensee nor a Proposed SNH Licensee is entitled to
reimbursement for services provided at the Facilities.
14.9 Bankruptcy Court Authorization. Mariner and the Mariner Licensees
shall seek authorization from the United States Bankruptcy Court for the
District of Delaware in order to proceed with those matters provided herein, in
conjunction with the authorization sought for
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proceeding with the Settlement Agreement. The form of order providing
authorization shall be in a form acceptable to SPTMNR, the Proposed SNH
Licensees and the Manager.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their duly authorized officers as of the date first set
forth above.
MARINER POST-ACUTE NETWORK, INC.
By: /s/ Todd Andrews
Its (Vice) President
AMS PROPERTIES, INC.
By: /s/ Todd Andrews
Its (Vice) President
GCI HEALTH CARE CENTERS, INC.
By: /s/ Todd Andrews
Its (Vice) President
SHOPCO-AZ, LLC
By: /s/ Ajay Saini
Its Treasurer
SHOPCO-CA, LLC
By: /s/ Ajay Saini
Its Treasurer
SHOPCO-COLORADO, LLC
By: /s/ Ajay Saini
Its Treasurer
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SHOPCO-WI, LLC
By: /s/ Ajay Saini
Its Treasurer
FIVE STAR QUALITY CARE, INC.
By: /s/ Evrett Benton
Its President
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SCHEDULE A
PROPOSED SNH LICENSEES
1. SHOPCO-AZ LLC, a Delaware limited liability company.
2. SHOPCO-CA LLC, a Delaware limited liability company.
3. SHOPCO-COLORADO LLC, a Delaware limited liability company.
4. SHOPCO-WI LLC, a Delaware limited liability company.
SCHEDULE B
FACILITIES
Property Name Property Address Tenant
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Cedars Health Care Center 1599 Ingalls Street AMS Properties
Lakewood, CO
Cherrelyn Manor Nursing Home 5555 South Elati AMS Properties
Littleton, CO
Christopher East Health Care Center 1132 East Knapp Street AMS Properties
Milwaukee, WI 53202
Greentree Health Care Center 70 Greentree Road AMS Properties
Clintonville, WI 54929
La Mesa Health Care Center 2470 S. Arizona Avenue GCIHCC
Yuma, AZ 85364
La Salette Health Care & Rehabilitation Center 537 E. Fulton GCIHCC
Stockton, CA 95204
Lancaster Health Care Center 1642 West Avenue "J" AMS Properties
Lancaster, CA
Northwest Health Care Center 7800 West Fond du Lac Avenue AMS Properties
Milwaukee, WI 53218
Pine Manor Health Care Center East Side of County Y Highway AMS Properties
Embarrass (Clintonville), WI
River Hills West Health Care Center 321 Riverside Drive AMS Properties
Pewaukee, WI 53072
Sunny Hill Health Care Center 4325 Nakoma Road AMS Properties
Madison, WI
Sunquest Village of Yuma 265 East 24th Street GCIHCC
Yuma, AZ 85364
Thousand Oaks Health Care Center 93 West Avenida de los Arobules AMS Properties
Thousand Oaks, CA 91360
Van Nuys Health Care Center 6835 Hazeltine Avenue AMS Properties
Van Nuys, CA 91405
Village Green Nursing Home 2932 North 14th Street GCIHCC
Phoenix, AZ 85094
Virginia Health Care Center 1471 Waukesha Avenue AMS Properties
Waukesha, WI
Woodland Health Care Center 18740 W. Bluemound Road AMS Properties
Brookfield, WI
SCHEDULE C
FORM OF OCCUPANCY AGREEMENT
See attached copy.
INTERIM OCCUPANCY AGREEMENT
This Interim Occupancy Agreement (this "Interim Occupancy Agreement")
is made this ___ day of 2000, between [insert name of applicable New Operator],
a Delaware corporation ("Sublessor"), and [insert name of applicable Mariner
Licensee], a Delaware corporation ("Sublessee").
WITNESSETH
WHEREAS, SPTMNR Properties Trust, a Maryland real estate investment
trust ("SPTMNR"), and Sublessor are parties to an Amended and Restated Master
Lease Agreement, dated as of ____________ ___, ______ (the "Lease"), with
respect to the skilled nursing facility known as "[insert name of facility]"
(the "Facility"); and
WHEREAS, SPTMNR, Sublessor, Sublessee and various other parties have
entered into a Settlement Agreement (the "Settlement Agreement"), pursuant to
which Sublessee has agreed to manage the operation of the Facility on the terms
contained therein and in an Interim Management Agreement, dated as of the date
hereof (the "Interim Management Agreement"), between Sublessor and Sublessee;
and
WHEREAS, in order to accomplish the foregoing, Sublessor has agreed to
sublease the Facility to Sublessee on the terms contained herein;
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto, intending to be bound,
hereby agree as follows:
1. Sublease. Upon and subject to the terms and conditions hereinafter
set forth, Sublessor subleases to Sublessee, and Sublessee subleases from
Sublessor, all of Sublessor's right, title and interest in, to, under or
relating to the real property, improvements, fixtures and related rights
constituting the Facility (the "Demised Premises"), including, without
limitation, any leasehold rights of Sublessor relating to the use or occupancy
thereto, and Sublessor agrees that Sublessee has and will continue to have
throughout the term of this Interim Occupancy Agreement, the right to use and
occupy the Demised Premises as the licensed operator of the Facility.
2. Term. The term of this Interim Occupancy Agreement shall commence on
the date hereof, and shall end on the earlier of (i) the date on which
Sublessee's obligation to provide services in connection with the management of
the operation of the Facility under the Interim Management Agreement shall have
expired or been terminated pursuant to the terms thereof and (ii) the SNH
Licensing Date (as defined in the Interim Management Agreement). Sublessor and
Sublessee acknowledge that under the Interim Management Agreement, Sublessor may
terminate Sublessee's provision of one or more services thereunder, and that if
Sublessor shall elect to do so, this Interim Occupancy Agreement shall remain in
effect notwithstanding such termination until Sublessor shall have elected to
terminate Sublessee's provision of all services under the Interim Management
Agreement with respect to the Facility.
3. Rent. Sublessee shall pay to Sublessor as the rent under this
Interim Occupancy Agreement (the "Rent"), all net patient revenues derived from
the operation of the Facility during the term of this Interim Occupancy
Agreement to the extent such net patient revenues are actually collected by
Sublessee. Except as expressly set forth in the preceding sentence, Sublessee
shall have no obligation to pay any amounts or perform any obligations in
respect of this Interim Occupancy Agreement; it being the purpose and intent of
Sublessor and Sublessee that this Interim Occupancy Agreement is a gross lease
and that except for the payment of the Rent, all costs, fees, taxes,
impositions, utility charges, repairs, alterations, restorations, charges,
expenses, reimbursements and obligations of every kind and manner whatsoever
relating to the Demised Premises which may arise or become due during or after
the term of this Interim Occupancy Agreement, shall be paid and discharged by
Sublessor.
4. Surrender of Possession. At the end of the term of this Interim
Occupancy Agreement, Sublessee shall surrender the Facility to Sublessor and, if
Sublessee shall fail to do so, Sublessee shall be a tenant-at-sufferance subject
to all of the terms of this Interim Occupancy Agreement except that Rent shall
be twice the Rent in effect immediately prior to the expiration or termination
hereof. Sublessee shall be liable for all damages incurred by Sublessor as a
result of such holding over.
5. No Subletting or Assignment. Sublessee shall not sublet or assign
any or all of the Facility without the prior consent of Sublessor; provided,
however, that the foregoing shall not be deemed to prohibit Sublessee from
permitting patients or residents to occupy the Facility in the ordinary course
of Sublessee's business.
6. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed to be properly given when personally delivered to
the party entitled to receive the notice or on the date of actual receipt, if
sent by certified or registered mail, postage prepaid and return receipt
requested, or one business day after being sent by nationally recognized
overnight courier service, properly addressed and postage prepaid to the party
entitled to receive such notice at the address stated below:
If to the Sublessor: ____________________
400 Centre Street
Newton, MA 02458
Attention: Treasurer
with a copy to: Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Nancy S. Grodberg, Esq.
If to the Sublessee: ____________________
One Ravinia Drive, Suite 1500
Atlanta, GA 30346
Attention: Associate General Counsel
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with a copy to: Powell, Goldstein, Frazier & Murphy
191 Peachtree Street
Atlanta, GA 30308
Attention: Douglas S. Gosden, Esq.
7. Miscellaneous.
(a) All the terms and provision of this Interim Occupancy
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Neither party shall be
entitled to assign its rights or obligations under this Sublease without the
prior consent of the other party hereto.
(b) The headings in this Interim Occupancy Agreement are for
convenience of reference only and shall not limit or otherwise affect the terms
hereof.
(c) This Interim Occupancy Agreement shall be governed by and
construed in accordance with the internal laws of the State in which the
Facility is located, without giving effect to contrary conflicts of law
principles.
(d) This Interim Occupancy Agreement may be executed in separate
counterparts, each of which shall be considered an original, and all of which,
when taken together, shall constitute one and the same instrument.
(e) This Interim Occupancy Agreement (including the Schedules and
Exhibits hereto), and the other documents and instruments specifically provided
for herein and therein, contain the entire understanding between the parties
concerning the subject matter hereof and thereof, and except as expressly
provided for herein or therein, supersede all prior understandings and
agreements whether oral or written, between them with respect to the subject
matter hereof and thereof.
(f) Neither this Interim Occupancy Agreement nor any provision
hereof may be changed, waived, discharged or terminated except by an instrument
in writing signed by Sublessor and Sublease.
(g) Any rights or remedies that any party hereto may have under
this Interim Occupancy Agreement with respect to any matter shall not be deemed
to be such party's exclusive rights or remedies with respect to such matter
arising out of the Settlement Agreement (or any of the Transaction Documents
referred to therein), and any party may exercise its rights and remedies under
this Interim Occupancy Agreement or the Settlement Agreement (or any of the
Transaction Documents referred to therein) concurrently with any such other
rights or remedies, or in any order that it determines in its sole and absolute
discretion.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Interim Occupancy
Agreement to be executed and delivered by their respective officers hereunto
duly authorized.
SUBLESSOR: SUBLESSEE:
[insert name of applicable New Operator] [insert name of Mariner Licensee]
By:___________________________ By:___________________________
Its: ___________________________ Its: ___________________________
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SCHEDULE D
Designated Services
Information Technology Support 1.0%
Reimbursement 0.5%
Accounts Payable and Payroll Processing 1.5%
Consultative Services 2.0%