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2017/02/20 RESOLUTION OF ASSET PURCHASE AGREEMENT OF HARNETT COUNTY HOME HEALTH (AGENCY) TO KINDRED HEALTHCARE, INC. cto Harnett COUNTY NORTH CAROLINA Resolutions of the wwv.harnett.org Harnett County Board of Commissioners February 20,2017 The following Resolutions were duly adopted by the Harnett County Board of Commissioners (the `Board"), the governing body of the County of Harnett (the "County"), in a duly called regular meeting on February 20, 2017. WHEREAS, the County currently owns certain assets, which assets are associated with and utilized in the operation of Harnett County Home Health (the"Agency"); WHEREAS, N.C. Gen. Stat. §131E-13 provides that if the County leases, sells, or conveys the Agency, or part thereof, the procedural requirements of N.C. Gen. Stat. §131E-13(d) shall apply; WHEREAS, the Board has carefully studied the future needs of the Agency and has held public hearings and obtained public comment on the present and future needs of the Agency in accordance with the requirements of N.C. Gen. Stat. §131E-13(d); WHEREAS, the Board has substantially complied with the requirements of N.C. Gen. Stat. §131E-13(d)(1) through (6) and has: (i) at a regular meeting more than sixty(60) days prior to the date hereof, adopted a resolution declaring the intent of the County to sell the Agency (the "Resolution of Intent"); (ii) at said meeting, requested proposals for the sale of the Agency by direct solicitation of at least five (5) prospective purchasers; (iii) conducted a public hearing on the Resolution of Intent; (iv) required information on charges, services, and indigent care at similar facilities owned and operated by each proponent; (v) conducted a public hearing on the proposals to purchase the Agency; and (vi) made copies of the proposals with respect to the Agency available to the public at least ten (10)days before the public hearing on said proposals; WHEREAS, Kindred Healthcare, Inc., which is experienced in the operation and management of home health and hospice agencies, submitted a proposal on behalf of itself and its affiliates to purchase substantially all of the assets used in the operation of the Agency (the "Assets"); WHEREAS, the terms and conditions of the proposed sale of the Assets to KAH Development 12. L.L.C., a Delaware limited liability company that is affiliated with Kindred Healthcare, Inc., have been reduced to writing in the form of an Asset Purchase Agreement by and between the County and KAI-1 Development 12, L.L.C. (the "Asset Purchase Agreement"), the form of which is attached hereto as Exhibit A; WHEREAS, at least ten (10) days before this meeting, the County made copies of the Asset Purchase Agreement available to the public in accordance with the requirements of N.C. Gen. Stat. §131E-13(d)(8) and a legal notice of this regular meeting of the Board was published in accordance with the requirements of N.C. Gen. Stat. §131E-13(d)(7); and WHEREAS, in accordance with the requirements of N.C. Gen. Stat. §131E-13(d)(7), after considering whether the sale of the Assets to KAH Development 12, L.L.C., in accordance with the provisions of this Resolution, will meet the health-related needs of medically underserved groups, such as low income persons, racial and ethnic minorities, and handicapped persons,the Board finds that the sale of the Assets is in the public interest. strong roots • new growth NOW, THEREFORE, be it resolved that in accordance with N.C. Gen. Stat. §131E- 13(d),the Board hereby authorizes,on behalf of the County, the following actions: 1. The County Manager to execute, on behalf of the County, the Asset Purchase Agreement and any other agreements, certificates, documents, and instruments to be executed by the County in connection with the Asset Purchase Agreement, including, without limitation, the Bill of Sale and Assignment, the Restricted Fund Agreement, the Assignment and Assumption Agreement, and the Medical Director Custodian Agreements in substantially the form presented to and approved by the Board; 2. The County Finance Officer to execute, on behalf of the County, the Asset Purchase Agreement, and to establish a restricted fund within the County's main operating account for the purposes of setting aside funds to secure the indemnification obligations of the County pursuant to the terms of the Asset Purchase Agreement; and 3. The County Manager and Chairman of the Board to take such other and further actions as may be necessary to conclude and implement the transaction described in this Resolution. This the 20 ebruary, 2017. 6 MI ypg2 e'n�.•���yF m i �,A HARNETT COUNTY BOARD OF ATTEST: .SyC.Got.. n Springle,Cha' a On-ik-lis- sItt.1 . P4 " .. . l. .I Marg:, -tReg'.:y eeler Cler o the Bo. liP4f Commissioners 2 EXHIBIT A ASSET PURCHASE AGREEMENT 1 Iti rights of Seller necessary to operate the Business, in each case to the extent transferable to Purchaser; (c) All inventory on hand and in-stock home health medical and office supplies used in the operation of the Business; (d) All prospective client mailing lists, subscriber and advertiser lists, subscriptions, processes, inventory records, budgets, and supplier records of Seller used in or relating to the Business; (e) All advertising, editorial, marketing, promotional, and ancillary materials used in or related to the Business; (1) The intellectual property of Seller used in the operation of the Business and identified on Schedule 1(f1 attached hereto; (g) Any and all of Seller's goodwill in, and going concern value of, the Business and the Assets; (h) All of Seller's rights under the contracts identified on Schedule 1(h) attached hereto (collectively,the "Assigned Contracts"); and (i) All of Seller's right, title and interest in and to the employment records with respect to the Transferred Employees. Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement will not include the assumption of any liability or obligation in respect thereof. The Assets shall not include those items set forth on Schedule IA (collectively, the`Excluded Assets"). 2. Requirements of Sale. To the extent required by N.C. Gen. Stat. §131E-13(a), following the Effective Time (as defined below), and for so long as Purchaser operates the Business, and N.C. Gen. Stat. §131E-13 is not amended or deleted to permit the termination of the obligations set forth below as to this transaction, Purchaser shall: (a) Continue to provide the same or similar home health and related services, which Seller is licensed to provide prior to the Closing Date, to individuals in need of such services; (b) Ensure that indigent care is available to the population of the area served by the Business at levels related to need, as previously demonstrated and determined mutually by Seller and Purchaser; (c) Not enact financial admission policies that have the effect of denying essential medical services or treatment solely because of a patient's immediate inability to pay for the services or treatment; 2 REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE BUSINESS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. 5. Accounts Receivable; Certain Receipts by Purchaser and Seller. (a) All deposit payments by Medicare, Medicaid, and other state and federal healthcare programs for services relating to the operation of the Business are deposited into Seller's main operating account (the "Account"). As of the Effective Time and continuing until the issuance of the Tie-In Notice (the "Transition Period"), Seller and Purchaser shall work together to ensure Purchaser receives all amounts deposited into the Account that relate to post- Effective Time services. (b) Inasmuch as the Business provides certain services that are reimbursed based upon "episodes of care" which generally span sixty (60) days (each, an "Episode of Care"), the parties acknowledge that the Business has received prior to Closing, and will receive after the Closing, aggregated payments (as aggregated, an `Episodic Payment") with respect to Episodes of Care that are open as of the Effective Time (that is, the Episode of Care will have commenced but will not have been completed as of the Effective Time). With respect to each such Episodic Payment, the parties acknowledge that (i) the portion of such Episodic Payment that is attributable to services rendered prior to the Effective Time will belong to Seller and (ii) the portion of such Episodic Payment that is attributable to services rendered after the Effective Time will belong to Purchaser, calculated as set forth below. (c) On a monthly basis after the Closing Date, Seller shall conduct a reconciliation with respect to all Episodes of Care that concluded during the preceding month and for which all aggregate Episodic Payments (including up-front RAP payments and any end- of-episode or other reconciliation payments) have been received. In conducting such reconciliation, Seller shall utilize the final remittance advice and other documentation provided by the applicable payor. The portion of each Episodic Payment attributable to services provided by Purchaser after the Effective Time will be calculated by (i) determining the per day reimbursement for the Episode of Care by dividing the aggregate Episodic Payment for such Episode of Care by the number of days (normally sixty (60) days) in such Episode of Care (such rate, the "Per Diem Rate") and (ii) multiplying the Per Diem Rate by the number of days between the Closing Date and the last day in such Episode of Care(counting the day upon which the Effective Time falls as the first day and the last day of the Episode of Care as the last day). (d) Within ten (10) business days following completion of the reconciliation described in Section 5(c), Seller shall remit to Purchaser, by electronic funds transfer, those portions of the applicable Episodic Payments that are attributable to post-Effective Time services. Seller shall also provide Purchaser with supporting documentation of such amounts remitted with respect to post-Effective Time services. In the event that Purchaser has reasonable evidence to support its belief that any amount remitted is incorrect, Purchaser shall contact Seller's designated representative as soon as reasonably practicable, and Seller and Purchaser shall conduct a meeting (via telephone) to discuss the discrepancy. Upon reaching mutual agreement regarding the amount owed, within five (5) business days Seller shall send via electronic funds transfer the funds to Purchaser in the agreed upon amount. 4 1 March 1, 2017, or such other date and time as the parties may mutually designate in writing (the "Effective Time"). 8. Seller's Closing Obligations. In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing, Seller shall deliver to Purchaser: (a) an executed Bill of Sale and Assignment (the "Bill of Sale"), in substantially the form attached hereto as Exhibit C, conveying, as of the Effective Time, the Assets to Purchaser, free and clear of all claims, liabilities, obligations, liens, charges, security interests, and encumbrances; (b) a certificate executed by an officer of Seller certifying as to the accuracy of its representations and warranties herein as of the Effective Date and as of the Closing, and as to Seller's compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing; (c) updated versions of the patient lists referred to in Section 5(f); (d) copies of all consents required to be obtained by Seller in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby as required to be disclosed in Schedule 18(c); (e) an Assignment and Assumption Agreement (the "Assignment and Assumption Agreement") in substantially the form attached hereto as Exhibit D, by and between Seller and Purchaser and executed by Seller; (g) the Medical Records Custodian Agreement executed by Seller; and (h) the Restricted Fund Agreement executed by Seller and documentation of the establishment and funding of the Restricted Fund Balance Account. - i 9. Purchaser's Closing Obligations. In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing, Purchaser shall deliver to Seller: (a) the Purchase Price by wire transfer to Seller; (b) a certificate executed by an officer of Purchaser certifying as to the accuracy of its representations and warranties as of the date of this Agreement and as of the Closing, and as to Purchaser's compliance with and performance of its covenants and obligations to be performed or complied with at or before the Closing; (c) the Assignment and Assumption Agreement executed by Purchaser; (d) the Medical Records Custodian Agreement executed by Purchaser; and (e) the Restricted Fund Agreement executed by Purchaser. 6 Purchaser shall exercise all commercially reasonable efforts to diligently pursue the issuance of a tie-in notice by CMS assigning Seller's existing Medicare provider agreement and Medicare provider number with respect to the Business to Purchaser (the "Tie-In Notice"). Seller shall provide Purchaser with such assistance as Purchaser may reasonably request in connection with the approval of the CMS 855A and issuance of the Tie-In Notice. Except as set forth in Schedule 1A, effective as of the Effective Time, Seller sells, assigns, and transfers to Purchaser, to the fullest extent permitted by Law, all right, title, benefit, privileges, and interest in, to, and under Seller's Medicare provider agreement with CMS, to the extent transferable, to Purchaser. Except as set forth in.Schedule 1A, by virtue of the assignment and assumption of Seller's Medicare provider agreement and Medicare provider number, following the Effective Time, Purchaser is entitled to full and exclusive use of Seller's Medicare provider agreement. (b) Purchaser will file appropriate Medicaid enrollment forms with CSC Provider EVC Unit,NC Tracks Operations Center,to obtain the required approvals to participate as a Medicaid-approved home health provider in the North Carolina Medical Assistance Program. Following submission of such application, Purchaser shall exercise all commercially reasonable efforts to diligently pursue Medicaid approval status as a home health services provider in the North Carolina Medical Assistance program. Seller shall provide Purchaser with such assistance as Purchaser may reasonably request in connection with the approval of such assignment. (c) Purchaser has submitted to DIMS, Division of Health Service Regulation, Health Planning and Certificate of Need Section ("CON Section") a request for a determination that the transaction contemplated by this Agreement is exempt from certificate of need review. Purchaser shall provide Seller with copies of all correspondence to and from the CON Section related to such request (including a copy of such determination) promptly upon issuance or receipt. (d) Purchaser has submitted to DHHS, Division of Health Service Regulation, Acute and Home Care Licensure and Certification Section("Acute and Home Care Section") an application for operation of the Business. Following submission of such application, Purchaser shall exercise all commercially reasonable efforts to diligently pursue the issuance of an approval of such application. Seller shall provide Purchaser with such assistance as Purchaser may reasonably request in connection with such application. 14. Employees. (a) Purchaser will offer each of the employees of Seller currently involved in the operation of the Business and listed in Schedule 14(0 attached hereto (sometimes referred to herein collectively as the`Employees") the opportunity to interview for at least one position with Purchaser. Such employees electing to interview will be provided an opportunity to submit information on his or her skills, experience and background, and will be evaluated in terms of Purchaser's standards of employment. Purchaser chall, subject to criminal background checks, drug screening, and current unencumbered licensure standards (as applicable) conducted pursuant to Purchaser's personnel policies, offer employment to each of the Employees. Purchaser agrees to employ the Employees hired by Purchaser (subject to each such Employee's right to voluntarily terminate his or her employment and Purchaser's right to terminate his or her 8 16. Misdirected Payments. (a) Purchaser and Seller covenant and agree that Seller and Purchaser shall remit, with reasonable promptness, to the other any payments received, which payments are on or in respect of accounts or notes receivable owned by (or are otherwise payable to) Seller or Purchaser, as applicable. Seller agrees to remit to Purchaser, within fifteen (15) days of receipt by Seller, any payments received by Seller for services rendered by Purchaser after the Effective Time, and Purchaser also agrees to remit to Seller, within fifteen (15) days of receipt by Purchaser, any payments received by Purchaser for the services rendered by Seller prior to the Effective Time. In addition, and without limitation, in the event of a determination by any governmental or third-party payor that payments to Seller for the Business resulted in an overpayment or other determination that funds previously paid by any program or plan to Seller for the Business must be repaid, Seller shall be responsible for repayment of said monies (or defense of such actions) if such overpayment or other repayment determination was for the services rendered prior to the Effective Time and Purchaser shall be responsible for repayment of said monies (or defense of such actions) if such overpayment or other repayment determination was for the services rendered after the Effective Time. (b) In the event that, following the Closing, Purchaser suffers any offsets against reimbursement under any third-party payor or reimbursement programs owed to Purchaser, relating to amounts owing under any such programs by Seller for the services rendered prior to the Effective Time, Seller shall within fifteen (15) days of receipt of a written demand from Purchaser pay to Purchaser the amounts so billed or offset. From the Effective Time to such date as CMS issues a tie-in notice to Purchaser with respect to the Business (the "Tie-In Notice"), Seller hereby grants Purchaser the right to submit claims, reports, documents and other information to CMS using Medicare Provider Number 34-7089 and other information, for the services provided to patients through the Business during such period, as necessary to receive payment for such services. Seller acknowledges and agrees that all such receivables arising from the services rendered after the Effective Time are the sole property of Purchaser. (c) In the event that, following the Closing, Seller suffers any offsets against reimbursement under any third-party payor or reimbursement programs owed to Seller, relating to amounts owing under any such programs by Purchaser or any of its affiliates for the services rendered after the Effective Time, Purchaser shall within fifteen (15) days of receipt of a written demand from Seller pay to Seller the amounts so billed or offset. 17. Notice to Clients. Prior to the Effective Time, Purchaser and Seller shall jointly notify the Clients of the transactions contemplated by this Agreement. Neither Purchaser nor Seller shall send any notices to the Clients regarding this transaction without the other party's approval as to the content and manner of such notice, which approval shall not be unreasonably withheld, conditioned or delayed. 18. Representations and Warranties of Seller. To induce Purchaser to enter into this Agreement, Seller represents and warrants to Purchaser that (which representations and warranties are limited only as they apply to Seller's operation of the Business or as they relate to the Assets): 10 Business (collectively the "Governmental Authorizations"), (ii) certified for participation and reimbursement under Titles XVIII and XIX of the Social Security Act (the "Medicare and Medicaid Programs") (The Medicare and Medicaid programs and such other similar federal, state, or local reimbursement or governmental programs for which Seller is eligible to receive payments on account of the services provided by the Business are hereinafter referred to collectively as the "Government Programs"), and (iii) the holder of current provider agreements for such Government Programs. Set forth on Schedule 18(f) as to the Business, is a correct and complete list of all such licenses, permits, and other authorizations, and provider agreements under all Government Programs, and each such license, permit, authorization, and agreement is valid and in full force and effect. (g) Account. Seller represents and warrants to Purchaser that Seller has directed the Government Programs to electronically deposit all payments owed by the Government Programs for the services provided by the Business into the Account, and Seller represents and warrants that the Government Programs do not (i) send any payments for the services provided by the Business to any other entity or person, or (ii) deposit (electronically or otherwise) any payments for goods and services provided by the Business into any bank account other than the Account. Seller agrees that it will not change, cause to be changed, or permit to be changed,the instructions to the Government Programs regarding payments to the Account. (h) No Conflict. Except as set forth in Schedule 18(h) neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby will, directly or indirectly (with or without notice of lapse of time) (i) violate any constitution, statute,regulation,rule, injunction,judgment,order, decree,ruling, charge, or other restriction of any government, governmental agency, or court to which Seller is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Seller is a party or by which it is bound or to which any of its assets is subject. Other than as specifically set forth in this Agreement, Seller does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the parties to consummate the transactions contemplated by this Agreement. (i) Litigation. There are no actions, suits, labor disputes or arbitrations, or legal or administrative proceedings or investigations pending against Seller for the operation of the Business, and no such actions or proceedings have been commenced within the last three (3) years. To best of Seller's knowledge, no such actions, suits, labor disputes or arbitrations, or legal or administrative proceedings or investigations are contemplated or threatened against Seller for the operation of the Business nor, to the best of Seller's knowledge, is there any basis therefore. To best of Seller's knowledge, no event has occurred or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement by any person of any action, suit,proceeding or investigation against Seller relating to the operation of the Business. (j) Compliance with Laws. Seller is in compliance with all applicable laws, statutes, ordinances, orders,judgments, decrees, injunctions, and rules and regulations ("Law" or "Laws")promulgated by any Governmental Entity which apply to Seller for the use of the Assets 12 (iv) Seller has no liabilities with respect to, and there are no claims against Seller by any customer, insurer or third party payor with respect to, overpayments made to Seller in connection with the operation of the Business. Seller is not aware of any pending or threatened claims against Seller by any customer, insurer or third party payor for overpayments in connection with the operation of the Business. Seller has no liabilities associated with any third party audits or denials by any third party payors in connection with the operation of the Business. (v) All of Seller's professional staff used in the operation of the Business are qualified and licensed to practice without restriction or limitation in such capacity in the State of North Carolina. (m) Indebtedness. With the exception of the Retained Liabilities, Seller will not have, as of Closing, any direct or indirect liabilities, indebtedness, obligations, penalties or debts (collectively, the "Indebtedness") related to the operation of the Business. The accounts payable were incurred in the ordinary course of business will be paid and satisfied by Seller, and Seller is not in default or late on any payable. (n) Satisfaction of Conditions. Seller promptly shall proceed to satisfy all conditions set forth in Section 20 below, and shall notify Purchaser upon Seller's discovery or belief that Seller will be unable to meet such conditions. (o) Disclosure. The representations, warranties, and statements contained in this Agreement and in each other agreement executed and delivered pursuant hereto and in the certificates, Exhibits and Schedules delivered to Purchaser by Seller pursuant to this Agreement do not contain any untrue statement of a material fact, and, when taken together, do not omit to state a material fact required to be stated therein in order to make such representations, warranties, or statements not misleading in light of the circumstances under which they were made. 19. Representations of Purchaser. To induce Seller to enter into this Agreement, Purchaser represents and warrants to Seller that: (a) Organization and Good Standing. Purchaser is a limited liability company duly organised, validly existing, and authorized to transact business in the State of Delaware and in the State of North Carolina, with full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. (b) No Conflict. The execution, delivery, and performance of this Agreement does not conflict with any provision contained in the governing documents of Purchaser or with any provision of any agreement, instrument, judgment, order, or law to which Purchaser is a party or is subject or by which it is bound. This Agreement has been duly executed and delivered by Purchaser and constitutes a valid and legally binding obligation of Purchaser, enforceable in accordance with its terms. (c) Changes in Representations. All information of Purchaser furnished and to be furnished to Seller is and will be accurate as of the date thereof. None of the information contained in the representations and warranties of Purchaser set forth in this Agreement or in any 14 22. Termination. (a) Termination Events. By written notice given prior to or at the Closing, subject to Section 22(b),this Agreement may be terminated as follows: (1) by Purchaser, in the event a material breach of this Agreement has been committed by Seller and such breach has not been cured within thirty (30)days by Seller or waived in writing by Purchaser; (ii) by Seller, in the event a material breach of this Agreement has been committed by Purchaser, and such breach has not been cured within thirty (30) days by Purchaser or waived in writing by Seller; (iii) by Purchaser, if the satisfaction of any of the conditions to Purchaser's obligation to close the transactions contemplated hereby as set forth in Section 20 becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement), and Purchaser has not waived such condition in writing; (iv) by Seller, if the satisfaction of any of the conditions to Seller's obligation to close the transactions contemplated hereby as set forth in Section 21 becomes impossible (other than through the failure of Seller to comply with its obligations under this Agreement), and Seller has not waived such condition in writing; (v) by mutual written consent of Purchaser and Seller; and (vi) by Purchaser or Seller, if the Closing has not occurred on or before March 1, 2017, or such later date as the parties may agree upon in writing, unless the terminating party is in material breach of this Agreement. (b) Effect of Termination. Each party's right of termination under Section 22(a) is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of such right of termination will not be an election of remedies. If the Agreement is terminated pursuant to Section 22(a), all obligations of the parties under this Agreement will terminate, except that the obligations in this Section 22 will survive; provided, however, that if this Agreement is terminated by a party because of the breach of the Agreement by the other party or because one or more of the conditions to the terminating party's obligations under this Agreement is not satisfied as a result of the other party's failure to comply with its obligations under this Agreement, the terminating party's right to pursue all legal remedies will survive such termination unimpaired. 23. Indemnification by Purchaser. Purchaser agrees to indemnify Seller and hold Seller harmless from and against any and all losses, damages, fines, penalties, costs, liabilities, and expenses (including all reasonable attorneys' fees, court costs, costs of defense and expert witness fees) (collectively, "Losses") arising from claims resulting from, or incident to: (a) Any breach by Purchaser of any of its obligations or duties under this Agreement or the incorrectness of any representation or warranty made by Purchaser in this Agreement or any document executed in connection herewith; 16 27. Access. Between the date of this Agreement and the Closing Date, and upon reasonable advance notice received from Purchaser, Seller shall afford Purchaser and its agents reasonable access to the Business to facilitate the transition of the Business operations from Seller to Purchaser. Purchaser shall not unreasonably interfere with the operations of the Business. In the event of the termination of this Agreement, all of Seller's information shall remain confidential and not be used by Purchaser, its members, officers, directors, employees or agents,and all copies thereof shall be returned to Seller. 28. Licenses. Should Seller receive notice or become aware of any adverse actions or deficiencies in the maintenance of any of Seller's provider numbers, Seller shall provide Purchaser with written notice within five (5) business days of its receipt of such notices. Notwithstanding the foregoing, Purchaser shall be solely responsible for the operation by Purchaser of the Business after the Closing Date, and any liabilities of Purchaser or the Business which arise out of Purchaser's operation of the Business after the Closing Date, subject to the provisions contained herein. 29. Sales and Transfer Taxes. All sales, transfer, purchase, use, value added, excise, income or similar taxes, fees, and duties under applicable Law incurred in connection with this Agreement or the transactions contemplated hereby shall be borne solely by Seller. 30. Allocation of Purchase Price. Seller and Purchaser agree to allocate the Purchase Price among the Assets in accordance with the provisions of Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"). Such allocation shall be binding on Seller and Purchaser and Seller and Purchaser shall use such allocation in satisfying any and all reporting requirements of the Internal Revenue Service ("IRS") and any state, local, or other taxing authority. 31. Miscellaneous Provisions. (a) Notices; Demands; Requests. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (i) delivered by hand (with written confirmation of receipt), (ii) sent by facsimile with confirmation of transmission by the transmitting equipment, (iii)received by the addressee, if sent by certified mail, return receipt requested, or (iv) received by the addressee, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses or facsimile numbers set forth below (or to such other addresses or facsimile numbers as a party may designate by notice to the other parties): As to Seller: Harnett County Attn: Joseph Jeffries County Manager P.O. Box 759 Lillington,NC 27546 As to Purchaser: KAH Development 12,L.L.C. Attn: Douglas Cumutte Senior Vice President,Corporate Development 18 IN WITNESS WHEREOF, the duly authorized officers of the parties hereof have executed this Agreement as of the date first written above. SELLER: Mt COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina By: gdati Name: h J- i s Title: County Manager The terms of this Agreement are in compliance with the requirements of the Fiscal Control Act. N3air .riCimberly oneycutt Title: County Fi ance Officer PURCHASER: KAH DEVELOPMENT 12, L.L.C.,a Delaware limited liability company By: Name: Douglas Curnutte Title: Senior Vice President,Corporate Development (? 20 iI EXiiBIT A MEDICAL RECORDS CUSTODIAN AGREEMENT Attached. b. Allow County representatives reasonable access to the Records during regular business hours (in person or through use of electronic systems)for the purposes of billing and collection, or making or defending any claim, action or allegation related to patient care, billing, professional conduct, or similar issues which depend upon or are related to the Records or the care reflected in the Records, and will establish a procedure to enable County representatives to gain reasonable access to the Records after regular business hours and on weekends, and to reproduce same, at County's sole cost and expense. c. Maintain a system to account for the "check-in" and "check-out" of the Records by County personnel. d. Maintain insurance covering the site at which the Records are stored, including coverage for"all hazards." e. Maintain the Records so as to comply with applicable provisions of federal law, the laws of the State of North Carolina, and in particular the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5,and the regulations promulgated thereunder(collectively, "HIPAA"). f. Upon the' written request of any patient of County (or the authorized legal representative of any patient of County), make copies of such patient's Record(s) and shall charge the patient therefor in accordance with the provisions of HIPAA and applicable state law, unless Kindred elects to waive such charge. Kindred shall retain a copy of all such Records. g. Kindred shall retain each Record for a period of at least eleven (11) years from the last date of treatment for an adult and for seven (7) years after a minor has reached the age of majority. 2. Representations and Warranties of Kindred. a. Kindred agrees that, in its performance of services under this Agreement, it shall not obligate County financially or make any financial undertaking on behalf of County or enter into any contract requiring County to undertake liability, or perform services without the prior written approval of County of such obligation, liability,or undertaking. b. Kindred and its employees, agents, and independent contractors shall comply with all applicable laws or regulations regarding the confidentiality of the Records and agrees that such records shall not be used or disclosed except as provided under this Agreement or as may be required by applicable state or federal law. c. Kindred agrees to indemnify and hold County harmless from and against any and all liability, claims, demands, suits, proceedings, actions, damages, costs, and expenses (including actual reasonable attorneys' fees) incurred by County as a result of Kindred's performance or failure to perform its obligations under this Agreement, so long as such is not the result of the negligence or misconduct of County or its officers, directors, employees, or agents. 2 1. A party's voluntary or involuntary filing of a petition for bankruptcy, reorganization, or receivership under federal or state law that is not dismissed within sixty(60) days after the commencement of such filing; or 2. The breach by a party of any of its obligations, warranties, or representations contained in this Agreement and such breach has not been cured within thirty (30) days after the non-breaching party gives the breaching party written notice thereof or, if such breach is incapable of cure within thirty (30) days, if the breaching party does not commence to cure such breach within such thirty(30) day period and continuously prosecute the performance of the same to completion with due diligence; or 3. A party breaches a warranty contained in this Agreement; or 4. A party has been adjudicated or pled guilty (by a plea of nolo contendere or otherwise) of or to a felony or any other criminal charges that relate to a party's billing and collection or professional medical activities. C. Termination by Notice. Notwithstanding any other provision of this Agreement to the contrary, County may terminate this Agreement upon ninety (90) days' written notice to Kindred. D. Actions Following Termination. Upon the termination of this Agreement prior to the expiration of the term, County shall have reasonable access to the Records during regular business hours (in person or through use of electronic systems), and Kindred will establish a procedure to enable County representatives to gain reasonable access to the Records after regular business hours and on weekends, and to reproduce same, at County's sole cost and expense for the purposes set forth in Section I(b). ARTICLE 1V MISCELLANEOUS • Kindred and County further agree as follows: A. Consequential Damages. Neither party shall be liable to the other for lost profits or revenues, or any indirect, incidental, consequential, or similar damages arising or alleged to arise out of this Agreement. B. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the matters described herein and shall supersede any prior agreement and understanding relating to the subject matter of this Agreement. C. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld; provided, however, either party may freely assign this Agreement to any parent corporation, affiliate, or governmental sub-unit, as the case may be. This Agreement shall inure to the benefit of and be binding on each party's heirs,representatives, successors, and permitted assigns. 4 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date above written. KINDRED: KATI DEVELOPMENT 12, L.L.C., a Delaware limited liability company By: Douglas Cumutte Senior Vice President, Corporate Development COUNTY: THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina By: Jose Jeffries County Manager 6 b. Allow Kindred representatives reasonable access to the Records during regular business hours (in person or through use of electronic systems)for the purposes of billing and collection, or making or defending any claim, action or allegation related to patient care, billing, professional conduct, or similar issues which depend upon or are related to the Records or the care reflected in the Records, and will establish a procedure to enable Kindred representatives to gain reasonable access to the Records after regular business hours and on weekends, and to reproduce same, at Kindred's sole cost and expense. c. Maintain a system to account for the "check-in" and "check-out" of the Records by Kindred personnel. d. Maintain insurance covering the site at which the Records are stored, including coverage for"all hazards." e. Maintain the Records so as to comply with applicable provisions of federal law, the laws of the State of North Carolina, and in particular the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5,and the regulations promulgated thereunder(collectively, "HIPAA"). f. Upon the written request of any patient of. Kindred (or the authorized legal representative of any patient of Kindred), make copies of such patient's Record(s) and shall charge the patient therefor in accordance with the provisions of HIPAA and applicable state law,unless County elects to waive such charge. County shall retain a copy of all such Records. g. County shall retain each Record for a period of at least eleven (11) years from the last date of treatment for an adult and for seven (7) years after a minor has reached the age of majority. 2. Representations and Warranties of County. a. County agrees that, in its performance of services under this Agreement, it shall not obligate Kindred financially or make any financial undertaking on behalf of Kindred or enter into any contract requiring Kindred to undertake liability, or perform services without the prior written approval of Kindred of such obligation, liability, or undertaking. b. County and its employees, agents, and independent contractors shall comply with all applicable laws or regulations regarding the confidentiality of the Records and agrees that such records shall not be used or disclosed except as provided under this Agreement or as may be required by applicable state or federal law. c. County agrees to indemnify and hold Kindred harmless from and against any and all liability, claims, demands, suits, proceedings, actions, damages, costs, and expenses (including actual reasonable attorneys' fees) incurred by Kindred as a result of County's performance or failure to perform its obligations under this Agreement, so long as such is not the result of the negligence or misconduct of Kindred or its officers, directors, employees, or agents. 2 1. A party's voluntary or involuntary filing of a petition for bankruptcy, reorganization, or receivership under federal or state law that is not dismissed within sixty (60) days after the commencement of such filing; or 2. The breach by a party of any of its obligations, warranties, or representations contained in this Agreement and such breach has not been cured within thirty (30) days after the non-breaching party gives the breaching party written notice thereof or, if such breach is incapable of cure within thirty (30) days, if the breaching party does not commence to cure such breach within such thirty (30) day period and continuously prosecute the performance of the same to completion with due diligence; or 3. A party breaches a warranty contained in this Agreement; or 4. A party has been adjudicated or pled guilty (by a plea of nolo contendere or otherwise) of or to a felony or any other criminal charges that relate to a party's billing and collection or professional medical activities. C. Termination by Notice. Notwithstanding any other provision of this Agreement to the contrary, Kindred may terminate this Agreement upon ninety (90) days' written notice to County. D. Actions Following Termination. Upon the termination of this Agreement prior to the expiration of the term, Kindred shall have reasonable access to the Records during regular business hours (in person or through use of electronic systems), and County will establish a procedure to enable Kindred representatives to gain reasonable access to the Records after regular business hours and on weekends, and to reproduce same, at Kindred's sole cost and expense for the purposes set forth in Section 1(b). ARTICLE IV MISCELLANEOUS Kindred and County further agree as follows: A. Consequential Damages. Neither party shall be liable to the other for lost profits or revenues, or any indirect, incidental, consequential, or similar damages arising or alleged to arise out of this Agreement. B. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the matters described herein and shall supersede any prior agreement and understanding relating to the subject matter of this Agreement. C. Assignment. This Agreement may not be assigned by either party without the prior writtenconsent of the other party hereto,which consent shall not be unreasonably withheld; provided, however, either party may freely assign this Agreement to any parent corporation, Affiliate, or governmental sub-unit, as the case may be. This Agreement shall inure to the benefit of and be binding on each party's heirs, representatives, successors, and permitted assigns. 4 IN WITNESS WHEREOF, the parties have executed this Agreement effective the as of date above written. • KINDRED: KAH DEVELOPMENT 12, L.L.C., a Delaware limited liability company By: Douglas Cumutte Senior Vice President, Corporate Development COUNTY: THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina ay: .2 JoQeffri s County Manager • 6 RESTRICTED FUND AGREEMENT THIS RESTRICTED FUND AGREEMENT (this "Agreement") is effective the 1st day of March, 2017, by and between THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina ("Seller"), and KAH DEVELOPMENT 12, L.L.C., a Delaware limited liability company("Purchaser"). A. Seller and Purchaser have entered into that certain Asset Purchase Agreement dated February_, 2017 (the "APA"), pursuant to which Purchaser is acquiring certain assets of Seller as described within the APA; B. Pursuant to Section 6 of the APA, Two Hundred Thousand Dollars ($200,000.00) of the Purchase Price is to be placed in a Restricted Fund Balance Account (the "Account") pursuant to this Restricted Fund Agreement; and C. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the APA. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged,the parties hereto agree as follows: 1. Establishment of Restricted Fund Balance Account. Seller has established a restricted fund within its main operating account for the purpose of serving as the Account. The Account is being created in order to secure indemnification obligations of Seller pursuant to the APA. Simultaneously with the Closing pursuant to the terms of the APA, Seller shall deposit, by wire transfer, immediately available funds in the amount of Two Hundred Thousand Dollars ($200,000.00)into the Account to be held pursuant to the terms of this Agreement. The Account shall consist only of the amounts placed in the Account pursuant to this Agreement, and shall not be comingled with any other accounts of Seller, and shall only be drawn upon in accordance with the terms of this Agreement. 2. Ownership and Restricted Fund Balance Account. Seller shall, at all times, be owner of the Account, subject to the contractual rights and obligations as described herein. Any investment earnings or income on the Account shall be the property of Seller and shall not become part of the Account and may be disbursed to Seller at Seller's direction. 3. Disbursement. Pursuant to Section 6 of the APA, Seller shall be permitted to withdraw funds from the Account as follows: (a) on the first (1) anniversary of the Closing, Seller shall be permitted to withdraw any funds in excess of One Hundred Thousand Dollars ($100,000.00)from the Account; on the second (2nd) anniversary of the Closing, Seller shall be permitted to withdraw any remaining funds held in the Account less the amount of any pending Purchaser's Claims (as defined below). 4. Account Access. Seller shall provide Purchaser with a copy of all monthly statements to verify account balance and activity, and all statements and notifications related to the Account within five (5) days of Seller's receipt of the same during the term of this Agreement. of the remainder of this Agreement, and this Agreement shall continue in force to the fullest effect permitted by law. (c) State Law Controlling. This Agreement shall be construed and enforced in accordance with the substantive laws of the State of North Carolina. (d) Venue. The parties agree that any litigation necessary to resolve a dispute arising under this Agreement shall be brought in the General Court of Justice in the County of Harnett and the State of North Carolina. (e) Successors; Assignment. This Agreement shall be binding upon and inure to the benefit of the legal representatives, successors, and permitted assigns of the parties. Neither party may assign this Agreement without the prior written consent of the other. (f) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter and may not be changed, modified, or amended, except by an instrument in writing signed by the party against whom such change, modification, or amendment is asserted. • (g) Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. (h) Execution of Agreement; Counterparts. This Agreement may be executed in one or more counterparts (including, without limitation, by electronic or facsimile signatures and transmission),each of which will be deemed to be an original copy of this Agreement and all of which,when taken together, will be deemed to constitute one and the same agreement. [SIGNATURE PAGE FOLLOWS] 3 EXIBBIT C BILL OF SALE AND ASSIGNMENT Attached. 1 • 6. Conflicting Terms. Notwithstanding anything herein to the contrary, the provisions of this Agreement shall be subject to the provisions of the Asset Purchase Agreement, and if to the extent they are inconsistent, the provisions of the Asset Purchase Agreement shall be controlling. IN WITNESS WHEREOF, this Bill of Sale has been duly executed and delivered as of the Effective Date. SELLER: THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina By: 1d' Joseph;"-ffries, o i.� anager 2 ASSIGNMENT AND ASSUMPTION AGREEMENT {� THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is effective as of the 1st day of March, 2017, by and between THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina ("Assignor"), and KAB DEVELOPMENT 12,L.L.C., a Delaware limited liability company("Assignee"). Recitals: A. Contemporaneously with the execution of this Assignment, Assignee has purchased Assignor's home health agency, which operates within the geographic boundaries of Harnett County, North Carolina, pursuant to that certain Asset Purchase Agreement by and between Assignor and Assignee, dated February, 2017 (the"Asset Purchase Agreement"); B. Section 1(h) of the Asset Purchase Agreement requires that Assignor shall assign, and that Assignee shall assume, all of Assignor's obligations pursuant to the contracts listed on Schedule 1(h)of the Asset Purchase Agreement; C. Attached hereto as Exhibit A is a listing of the contracts subject to and a part of this Assignment(collectively,the"Assigned Contracts"); D. Assignee desires that Assignor transfer and assign to Assignee all of Assignor's right, title, and interest in, and under the Assigned Contracts, and Assignee accepts such assignment as herein stated; and E. All capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Asset Purchase Agreement. NOW, THEREFORE, in consideration of the mutual premises, agreements, and mutual covenants set forth herein and in the Asset Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby irrevocably acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows: 1. Assivlrment and Assumption of Assigned Contracts. Assignor hereby assigns to Assignee, its successors and assigns all of its right,title, and interest in, to, and under the Assigned Contracts, and Assignee hereby accepts and assumes all obligations of Assignor arising under the Assigned Contracts on or after the Effective Time, but specifically excluding all obligations or liabilities arising from any default, breach or violation of any such Assigned Contract occurring on or prior to the Effective Time, whether occurring as a result of the transactions contemplated by the Asset Purchase Agreement or otherwise). Notwithstanding the foregoing, if the assignment, attempted to be made hereunder of any Assigned Contract, would be ineffective as between Assignor and Assignee without the consent of a third party, or would constitute a cause for terminating or invalidating such Assigned Contract, then such Assigned Contract is excluded from this Assignment and Assignor shall cooperate with Assignee to obtain all required consents to facilitate the assignment of said contract. Upon obtaining such consents, no further assignment or conveyance shall be required, but rather full and complete title to such Assigned Contract shall automatically become vested in Assignee by virtue of this instrument. If all required consents are IN WITNESS WHEREOF, the duly authorized officers of the parties hereof have executed this Assignment and Assumption Agreement as of the date first written above. ASSIGNOR: THE COUNTY OF HARNETT, a body corporate and politic authorized by the laws of North Carolina By. S S- Name: Jos..h Je i,'i Its: County Manager ASSIGNEE: KAH DEVELOPMENT 12, L.L.C., a Delaware limited liability company By: Name: Douglas Cumutte Its: Senior Vice President, Corporate Development 3 SCHEDULE 101 INTELLECTUAL PROPERTY Main Number: (910)893-7544 Fax Number: (910)814-8266 SCHEDULEIA EXCLUDED ASSETS 1. Seller's accounts receivable, cash, and cash equivalents owned by Seller associated with the Business. 2. Seller's bank accounts. 3. Seller's furniture, furnishings, and equipment used in the operation of the Business. 4. Seller's real or personal property used in the operation of the Business. 5. Seller's computer hardware, software, and other information technology used in the operation of the Business, except that Seller agrees that such assets shall remain available for Purchaser's use through the date of the Tie-In Notice. 6. Seller's vehicles used by staff to serve patients. SCHEDULE 18(c) NOTICES AND CONSENTS A determination by the CON Section, that Seller's sale, and Purchaser's acquisition, of the Assets is exempt from certificate of need review. Written notice to the Acute and Home Care Section of a contemplated licensure change of ownership. Written notice to CMS, in the manner prescribed by CMS, of a contemplated change of ownership pursuant to 42 C.F.R. § 489.18. SCHEDULE 18(hI CONFLICTS A determination by the CON Section, that Seller's sale, and Purchaser's acquisition, of the Assets is exempt from certificate of need review. Change of Ownership Licensure Application, which will be processed by the Acute and Home Care Section. CMS Tie-In Notice.