Regional Health Properties Inc.

09/27/2021 | Press release | Distributed by Public on 09/27/2021 14:37



THIS MANAGEMENT AGREEMENT (the "Agreement"), dated as of September 22, 2021 by and between PEACH HEALTH GROUP, LLC, a Georgia limited liability company ("Manager"), and TARA OPERATOR LLC, a Georgia limited liability company ("Operator") provides as follows:



Operator is the lessee of a skilled nursing facility known as "Thunderbolt Transitional Care & Rehabilitation," located at 3223 Falligant Avenue, Thunderbolt, Georgia, and having one hundred thirty-four (134) nursing facility beds; and

1.2Operator desires to contract for management services for the Facility; and

1.3Manager desires to be engaged by Operator to provide such services.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, Operator hereby engages Manager to provide management services at the Facility (as defined below), and Manager hereby accepts such engagement and agrees to render such services, all as set forth herein.


For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (a) the capitalized terms used in this Agreement have the meanings assigned to them herein and include the plural as well as the singular, (b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Generally Accepted Accounting Principles, (c) all references in this Agreement to designated "Paragraphs," "Sections" and other subdivisions are to the designated Paragraphs, Sections and other subdivisions of this Agreement, and (d) the words "herein," and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Paragraph, Section or other subdivision.


Adjusted Net Revenues. All revenues from any source derived from the operation of the Facility, calculated on a cash basis, less any contractual allowances.


Business Day. Each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which national banks are authorized or obligated by law or executive order to close.


Commencement Date. The date specified in Section 6, Term of Agreement, of this Agreement.


Facility. The Facility consists of a skilled nursing facility known as "Thunderbolt Transitional Care & Rehabilitation," located at 3223 Falligant Avenue, Thunderbolt, Georgia, and having one hundred thirty-four (134) nursing facility beds.


2.5Facility Operating Costs. All costs of operating the Facility.

2.6Landlord. Landlord shall mean Spring Valley, LLC, a Georgia limited liability company.

2.7Legal Requirements. All federal, state, county, municipal and other governmental statutes,

laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions affecting either the Facility or the use thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all leases, covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Manager at any time in force affecting the Facility.

2.8Management Fee(s). Compensation payable to the Manager pursuant to Section 9 of this


2.9State. The state of Georgia.

2.10 Transition Period A period of six (6) months beginning with the effective date of this Agreement


3.1Management Services. Manager shall provide the following management services in connection with the operation of the Facility beginning on the Commencement Date.

3.1.1 Personnel. All personnel necessary for the operation of the Facility shall be employees of the Operator or independent contractors of the Operator. Manager's employees in providing services hereunder shall be the borrowed servants of the Operator and subject to its direction and control through the approval rights of Operator. Consistent with the Budget and subject to Operator's approval rights, Manager shall recommend and implement such salary levels, personnel policies/procedures and employee benefits. Manager shall periodically review the Facility's compliance with personnel policies/procedures.

3.1.2 Care-Related Managers. The Manager shall identify care-related Managers including nurse supervisors, dietitians, occupational health nurses, rehabilitation therapists, physician/medical director, activities professionals, social workers and religious ministers to be available as needed at the Facility. In no case shall any care-related Manager be engaged unless Manager and Administrator (as defined below) have concurred that such is necessary for the provision of quality resident care at the Facility and the same are consistent with the Budget or are approved by Operator.

3.1.3 Certification, Licensure, Reimbursement, Legal Requirements. Manager shall provide the Administrator with reasonable assistance in preparing and implementing all policies and procedures necessary to retain (a) certification of the Facility, or any relevant part thereof,


as a provider of services under Titles XVIII (Medicare) and XIX (Medicaid) of the Social Security Act and (b) state licensure of the Facility, or any part thereof, as appropriate under all applicable laws. Manager shall advise the Administrator on all reasonable actions necessary to keep the Facility fully licensed by the state and duly certified and accredited by applicable agencies and bodies as appropriate and necessary.

3.1.4 Operational Policies. Manager shall review all Facility operational policies and procedures and shall recommend modifications and implementation procedures to Operator in order that the Facility substantially complies with all Legal Requirements and to promote the provision of quality resident care at the Facility to then-current industry standards.

3.1.5 Periodic Reviews and Reports. Manager shall periodically review all resident care and Facility policies and procedures used at the Facility to determine if they reasonably conform to then-current industry standards. Manager shall prepare updates to such policies and procedures and provide same to Operator for approval. Manager shall assist Operator in implementing such policies and procedures.

3.1.6 Regulatory Communications. Immediately upon receipt, Operator shall deliver to Manager copies of all communications received from any regulatory agency that could have a material impact on the licensure, certification, or financial performance of the Facility. ,Manager shall work with the Administrator to prepare all appropriate and required responses and submit such responses for approval to Operator who shall, in turn, be responsible for submitting such responses to the applicable regulatory agency.

3.1.7 Public Information. Consistent with the Budget and subject to Operator's approval, Manager shall arrange for the preparation and distribution of all marketing material, media releases and other public information regarding the Facility.

3.1.8 Budget Preparation and Approval. The Budget shall include capital expenditure budgets, operating budgets and cash flow projections. Manager shall prepare in conjunction with the Administrator and provide to Operator budgets and cash flow projections covering the succeeding twelve (12) months not later than forty-five (45) days prior to the commencement of each fiscal year of Operator. Operator shall review and, in Operator's discretion, amend the budgets within thirty (30) days after Operator receives the budgets. No budget shall be final until approved by Operator or until thirty (30) days has elapsed following submission of the budget to Operator.

3.1.10 Billing and Third-Party Reimbursement. Manager, as agent for Operator, shall oversee the billing for goods and services provided by the Operator's employees at the Facility. Manager shall establish and implement an accounts receivables monitoring and collections program, consistent with Legal Requirements. To the extent allowed by law, billing and collection functions shall be performed jointly by employees of Manager and Operator based upon assignments made by Manager.


3.1.11 Resident Trust Accounts. Manager shall audit on a monthly basis compliance with all Legal Requirements respecting the handling of resident trust accounts and any tenant security deposits. Resident trust accounts shall be administered by employees of Operator.

3.1.12 Bank Accounts. Operator shall establish all necessary banking accounts (Accounts") and shall control all disbursements from such accounts. Operator shall establish procedures so that disbursement requests are processed and authorized on a timely basis. All Facility Operating Costs, other than petty cash disbursements under One Hundred Dollars ($100), shall be paid by check with Operator's funds. Manager may request that Operator deposit additional working capital funds into Facility operating accounts as necessary.

3.1.13 Excess Cash Management. Operator shall be responsible for excess cash management. Excess cash not required for the operation of the Facility shall be deposited in a bank account selected by Operator.

3.1.14 Facility Charges. Manager shall, with Operator's approval and consistent with all Legal Requirements, review and establish for the Facility schedules of recommended charges, including any and all special charges, for services rendered to residents of the Facility.

3.1.16 Administrative and Legal Matters. Manager shall cooperate fully with _ and provide.. reasonable support to Operator's legal counsel, and coordinate all administrative and legal matters related to the operation of the Facility, unless otherwise directed by Operator and except as related to disputes concerning this Agreement or services provided by Manager to Operator.

3.1.17 Confidentiality of Facility Records. Manager shall maintain the confidentiality of all files and records of the Facility, disclosing the same only as required by law or as directed by Operator.

3.1.18 Improvements and Development Oversight. Manager shall oversee all budgeted major capital expenditure repairs. Manager shall, at the request of Operator, arrange a physical inspection of the Facility and obtain a written report thereon which shall be furnished to Operator along with recommended improvements and estimated costs of repair, replacement or modification. Manager shall advise, or request Operator's auditor or attorney to advise, Operator regarding the anticipated third-party reimbursement treatment of such recommended expenditures.

3.1.19 Maintenance and Repairs. Manager shall review Operator's employees' day-to-day maintenance of the Facility and its grounds and shall arrange, in conjunction with the Administrator, all repairs, replacements and maintenance authorized under this Agreement.

3.1.20 Insurance Program Coordination. Manager shall maintain professional liability insurance

for itself in an amount no less than $ per claim and $ in the aggregate.


Manager shall obtain and maintain the following insurance coverages for the facility in amounts as directed or approved by the Operator. They are:

Directors and Officers Insurance

Casualty/Property Insurance

Comprehensive General Liability Insurance

Workers' Compensation Insurance

Employee Benefit Coverages

Dishonesty Policies or Surety Bonds for Fiduciaries

Business Interruption Insurance

3.1.22 Contracts. Manager shall review all contracts related to the Facility as requested by Administrator unless otherwise directed by the Operator and may consult with counsel for Operator, when deemed reasonably necessary by Manager and Administrator, prior to contract execution. Manager's review shall be limited to business issue and not legal matters.

3.1.23 Authority. Manager shall have the responsibility and authority to perform on behalf of Operator the services it is obligated to perform as set forth herein. Except for exigent circumstances involving an immediate threat to resident health or safety, the Manager shall not, without Operator's specific approval, commit Operator to make any single expenditure, not otherwise provided for in a budget approved by Operator in writing, of more than Ten Thousand Dollars ($10,000), or series of related expenditures that will in aggregate exceed Twenty Thousand Dollars ($10,000). If such approval is requested, it shall not be unreasonably withheld or delayed by Operator. Notwithstanding anything herein to the contrary, Operator shall have all power and authority mandated by Legal Requirements to be possessed by Operator in its capacity as the licensed operator of the Facility and Manager shall be subservient to such authority.

3.1.24 Compliance with Legal Requirements. In performing services under this Agreement, Manager shall use its best efforts to maintain Medicare, Medicaid and all other third-party reimbursement arrangements should Operator elect to participate in said programs, and any

accreditation, certification, license and approval of the Facility. The Manager shall use its best efforts to comply with all applicable Legal Requirements. Neither this provision nor any other provision of this Agreement requiring Manager to use its best efforts shall be construed to require Manager to expend more than a nominal amount of its own funds or to advance funds to Operator.


The systems, methods, procedures and controls employed by Manager remain the property of Manager and shall not, at any time, be used, distributed, copied or otherwise employed or acquired by Operator, except as authorized by Manager. Upon termination of this Agreement, Operator shall be entitled to all information relating to bank accounts, resident accounts, cost reports, surveys, employee files and incident files; however, general operational materials, forms, accounting manuals, budget tracking systems methods, procedures and controls employed by Manager which are proprietary to Manager shall remain the property of Manager and shall be removed from the Facility upon termination of this Agreement. Notwithstanding any of the foregoing, all systems, documents, programs, software or other materials, the acquisition or

development cost of which was borne by Operator or treated as a Facility Operating Cost, shall be and remain the sole and exclusive property of Operator, and Operator shall have access to all such materials to the extent necessary in order for it to comply with applicable Legal Requirements. In addition, _notwithstanding anything tothe contrary herein, all licensure manuals,,, employee handbooks or similar materials shall remain with the facility after termination for a period of One Hundred Eighty (180) days even where such materials are proprietary to Manager.


5.1 Authority. Operator shall employ and provide an on-site, full time Administrator (the "Administrator" to provide oversight for the Facility. The Administrator shall be responsible for the functional operation of the Facility and execution on a day-to-day basis of policies governing the operation of the Facility subject to the advice and assistance of Manager. Operator shall retain all authority to direct the operations of the Facility.

5.2 Operator's Approval and Disapproval. Operator shall promptly approve or provide itemized disapproval of all budgets, financial data and other matters required to be submitted by Manager to Operator pursuant to this Agreement. If Operator has not responded to a request for approval within such period as is stated herein or, if no period is indicated, within ten (10) Business Days, or as may be otherwise agreed upon by the parties, its failure to respond shall constitute Operator's approval as requested.

5.3 Access to the Facility. Operator shall, during the Term, give Manager complete access to the Facility, its records, offices and Facility, in order that it may carry out its duties hereunder.

5.4 Liability for Facility Operating Costs. Operator shall be liable for all Facility Operating Costs. To the extent required to provide funds to pay Facility Operating Costs, funds described in Section 3.1.12 of this Agreement shall be drawn on first unless Operator otherwise directs; if additional funds are required, Operator shall deposit funds in the Accounts adequate for such purpose as described in Section 3.1.12. Manager shall not be obligated to advance any funds for Facility Operating Costs.

5.5 Insurance. Operator shall maintain at Operator's sole cost and expense insurance covering all risks normally insured by similar Facilities, including professional liability in the amount of at least One Million Dollars ($1,000,000) combined single limit, at least Three Million Dollars ($3,000,000) annual aggregate, and statutorily required coverages, including workers' compensation with respect to employees of the Facility other than Manager's employees. All liability policies shall name Manager as an additional insured and, to the extent such is obtainable, shall provide that they shall not be cancelable except on thirty (30) days prior notice to Manager. Operator shall provide to Manager annually copies of Certificates of Insurance for Manager's review.

5.6 Operator's Cooperation. Operator shall fully cooperate with Manager to: (1) obtain and maintain any license, Medicare and Medicaid certification and accreditations that are necessary or appropriate for operation of the Facility; (2) develop operating budgets for the Facility; (3) develop fee, rate and charge schedules for the Facility; (4) develop and implement operating and employment procedures for the Facility; and (5) obtain all necessary repairs, renewals, replacements and additions to the Facility.

5.7 Fines and Penalties. All fines, civil monetary penalties or late filing penalties, including without limitation, any civil monetary penalties imposed pursuant to 42 U.S.C. § 1396r(h) or § 1395i-3(h), shall be the responsibility of Operator.

5.8 Development of Performance Criteria. Operator and Manager shall jointly develop mutually acceptable, objective criteria to assess the Facility's performance. Such criteria may include without limitation Facility occupancy levels, state and federal survey compliance, resident complaints, and quality assurance performance.

5.9 Computer Software and Systems Charges. Operator will be responsible for the costs of computer systems and software located at the Facility. To the extent Manager incurs expenses relating to maintenance of computer systems and software located at the Facility or at Manager's offices, Manager will charge Operator a fee that will adequately reimburse it for the direct costs thereof.

5.10 Reserved.

5.11 Payment of Management Fees. Reimbursement for Expenses and Payment of Charges. Operator shall timely pay Manager the Management Fees. Operator shall (i) reimburse the Manager on a monthly basis in arrears, for all Manager advances which are Operator's responsibility under this Agreement provided that Manager shall not advance funds or otherwise pay for expenses greater than $12,500 without the advance written consent of Operator to such expenses, and (ii) pay Manager the Management Fee pursuant to the terms of Section 9.1. All charges and expenses other than Management Fees, which are due at the beginning of each month, are due within thirty (30) days of invoice date. If Management Fees under this Agreement remain unpaid for thirty (30) days beyond the due date, all obligations of the Manager to perform under this Agreement shall cease and shall not resume until all obligations are paid in full.


6.1 Term. The Term of this Agreement shall commence on October 1, 2021, (the "Commencement Date") and shall continue for 12 months after the Commencement Date.

6.2 Termination for Failure to Maintain Minimum EBITDAR. After the Transition Period, Operator may terminate this Agreement at any time in the event that Facility fails to achieve a monthly EBITDAR of at least $105,000 in any three consecutive months.

6.3 Termination Due to Default. If either party desires to terminate this Agreement for a material breach or default of this Agreement, the party desiring to terminate the Agreement shall provide ten (10) days prior notice to the Landlord of such intent to terminate for default.

6.4 Operator's Outstanding Obligations to Manager. Notwithstanding.,-the foregoing, a11. obligations to the Manager under this Agreement shall survive termination of the Agreement.


In the event of termination by either party due to any cause, the Operator shall pay all unpaid invoices for goods and services properly incurred by the Manager on Operator's behalf prior to such termination pursuant to this Agreement and shall assume, as of the date of

termination, responsibility for all financial obligations properly incurred by the Manager pursuant to this Agreement, including fees and expenses incurred performing obligations under this Agreement, including travel expenses. This shall include payment of balances on leases entered into on behalf of Operator for equipment, including without limitation computer hardware and software. In addition, the Manager shall be entitled to its Management Fee earned through the effective date of termination.


No party shall be liable to the other for any delay or damage or any failure to act (other than payment of money) by reason of federal or state laws or the rules, regulations or orders of any public body or official purporting to exercise authority or control respecting the operations covered hereby, or as a result of strikes, action of the elements, acts of God or other causes reasonably beyond the control of the parties, and delay as a result of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement.


The Management Fee payable to Manager hereunder shall be as follows:


Management Fee. Operator shall pay to Manager a monthly management fee equal to: Months 1 through 6 of the Term:

Base management fee of 4% of Adjusted Net Revenues, with a monthly minimum fee of $35,000

An incentive fee of 1% of Adjusted Net Revenues in the event that monthly EBITDAR is above $105,000

An incentive fee of 13% of EBITDAR in the event that monthly EBITDAR is above $125,000

All incentive fees shall be paid on a quarterly basis.

Months 7 & After of the Term:

Base Management Fee-of,3%- of-Adjusted-Net Revenues,'-with a monthly minimum fee..of'.$30,000

An incentive fee of 1% of Adjusted Net Revenues in the event that monthly EBITDAR is above $105,000

An incentive fee of 15% of EBITDAR in the event that monthly EBITDAR is above $125,000

•All incentive fees shall be paid on a quarterly basis.

•For purposes of calculating the Management Fee, "EBITDAR" means:

For any period of determination, the aggregate net operating income of Operator for such period to the extent derived solely from the operation of the Facility as

reflected in financial statements prepared in accordance with GAAP, before the deduction of, to the extent allocable to the Facility for the applicable period of determination, without duplication, (1) interest expense, (2) income tax expense, (3) depreciation and amortization expense, and (4) rent, in each case determined in accordance with GAAP, to the extent applicable. In addition, revenue due to any state or federal COVID stimulus shall be removed from the calculation of EBITDAR.


Payment. The base management fee shall be payable monthly in advance on or before the twentieth (20th) day of each calendar month for which payment is made. The Management Fee shall be estimated by Manager based on the reasonably estimated amount of Adjusted Net Revenues of the Facility for the month for which payment is to be made.

Within thirty (30) days after the end of each month, Manager shall pay to Operator the excess, if any, of the Management Fees collected for such month over the amount due based on the actual revenue of the Facility for such month and, conversely, the excess of the amount due based on the actual operating revenues for such month over the Management Fees paid in advance for such month shall be paid by Operator to Manager. The incentive fees shall be paid in arears on a quarterly basis based on the immediately previous three month operating results of the Facility by the 20th day following the end of the quarter.


Bonus. Subject to Section 6.4 hereof, in the event this Agreement is terminated by Operator during the twelve (12)months after October 1, 2021 and Operator immediately leases the Facility for at least $ 110,000, per month, Manager shall be entitled to receive three (3) times the most recent monthly Management Fee set forth herein payable by Operator on the date of termination.


All notices required or permitted hereunder shall be given in writing by actual delivery or by certified mail, return receipt requested, postage prepaid. Notice shall be deemed given upon delivery, or if given by mail, three business days after being mailed or upon receipt, whichever is earlier. Notice shall be given by delivering or mailing such notice to each of the named below at the following addresses or to such other persons or addresses as a party shall designate in writing.

If to Manager:1350 SCENIC HWY SUITE 266


If to Operator:



11.1 Manager's appointment and actions hereunder are in the status of an independent contractor. Operator and Manager acknowledge and agree that neither is the employee or the employer of the other, and that they are not partners or joint venturers. Nothing in this Agreement shall be construed as a lease between Operator and Manager.

11.2 Nothing in this Agreement shall be construed as prohibiting Manager from acquiring, operating, or managing other facilities, including other long-term care and senior housing facilities, even though such other facilities may be considered to be in competition with the Facility or with other facilities of the Operator and Operator shall have no rights in such other facilities or the income or profits derived therefrom. Nothing in this Agreement shall be construed as prohibiting Operator from engaging others to manage any of the Operator's other facilities and the Manager shall have no rights under this Agreement in such other facilities of the Operator or the income or profits therefrom. Accordingly, this is not an


exclusive agreement on the part of either party.


Each party hereby warrants and represents to the other that prior to the execution of this Agreement such party (1) has fully informed itself as to the terms, contents, provisions and effects of this Agreement, (2) has had the benefit of the advice of an attorney and such other Managers deemed appropriate by such party, and (3) has neither made nor accepted any promise of representation of any kind, whether written or oral, that is to form a basis of this Agreement, except as is expressly stated herein. This Agreement by the parties will constitute, exclusively and entirely, the agreement among the parties with regard to subject hereof. All prior representations or agreements, written or oral, between or on behalf of the parties hereto are merged herein and superseded hereby. The parties may not alter, amend or modify this Agreement without Landlord's prior written consent.


13.1 Operator shall be entitled to audit records of Manager pertaining to the Facility, which shall include without limitation accounting records, written accounting policies and procedures, subcontract files (including proposals of successful and unsuccessful bidders), original estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence deemed necessary by the auditor to substantiate charges for services provided by or through Manager under this Agreement, including, but not limited to, reimbursement for expenses (all the foregoing hereinafter referred to as "Facility Records"). Facility Records shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by Operator's agent and/or appropriate federal agencies or their duly authorized representatives to the extent necessary to permit adequate evaluation and verification of any invoices, payments or claims submitted by Manager.

13.2 For the purpose of such audits, inspections, examinations and evaluations, Operator's agent or authorized representative shall have access to all Facility Records from the Commencement Date, for the Term, and until seven (7) years after date of final payment by Operator to Manager pursuant to this Agreement; or in lieu of the same, Manager may deliver all Facility Records to Operator upon termination of this Agreement or thereafter.

13.3 Operator's agent shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this Section 13. Operator shall give Manager reasonable advance notice of intended audits.

13.4 This provision shall only be effective if this Agreement or if any services provided under this Agreement is subject to regulations promulgated by the Centers for Medicare and Medicaid Services, 42 C.F.R. §§ 420.300-420.304, implementing 42 U.S.C. § 1395x(v)(1)(I). Manager agrees, until the expiration of four (4) years after the furnishing of services pursuant to this Agreement, to make available, upon request, to the Secretary of the Department of Health and Human Services, the Commonwealth of Virginia or any of their duly authorized representatives, this Agreement and the books, documents and records of Manager that are necessary to verify the nature and extent of the cost of such services, in accordance with the requirements and procedures set forth in 42 C.F.R. §§ 420.300-420.304. If Manager carries out any of its duties hereunder through a subcontract with a related organization as defined in 42 C.F.R. § 420.301 having a value or cost of Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain a clause to the effect that, until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization shall make available, upon written request, to the Secretary or to the Commonwealth of Virginia, or any of their duly authorized representatives, the subcontract and the books, documents and records of such organization that are necessary to verify the nature and extent of the cost of such services, in accordance with the requirements and procedures set forth in 42 C.F.R. §§



In the event a party to this Agreement resorts to legal action against the other to enforce the terms and provisions of this Agreement, the prevailing party shall be entitled to recover the expenses and costs of such action, including without limitation, all litigation costs, expert witness fees and reasonable attorneys' fees incurred in connection therewith.


The Manager does not hereby assume any of the obligations, liabilities or debts of the Operator and shall not, by virtue of its performance hereunder, assume or become liable for any of such obligations, debts or liabilities. The Operator hereby agrees to indemnify, defend and hold the Manager, its officers, directors, members, employees, and agents harmless from and against any and all claims, demands, actions, liabilities, expenses or losses of any nature whatsoever, including without limitation litigation costs, expert witness fees and reasonable attorney's fees, asserted against or incurred by the Manager on account of the acts or omissions of Manager in connection with the performance of its duties hereunder or any of the obligations, acts, liabilities or debts of the Operator not assumed hereunder by the Manager, unless such are due to the gross negligence of Manager. The Operator further hereby agrees to indemnify, defend and hold harmless the Manager and its officers, directors, members, employees and agents from and against any and all claims, demands, actions, liabilities, expenses or losses of any kind, incurred on account of, or arising out of actions taken in good faith by the Manager or its officers, directors, employees and agents, which the Manager or such person or persons reasonably believed to be within the scope of its or their responsibilities under this Agreement, unless such are due to the gross negligence of Manager. The provisions of this Section 15 shall survive termination or expiration of this Agreement.

The Operator does not hereby assume any of the obligations, liabilities or debts of the Manager, except as otherwise specifically provided herein, and shall not, by virtue of its performance hereunder, assume or become liable for any of such obligations, debts or liabilities. The Manager hereby agrees to indemnify, defend and hold the Operator harmless from and against any and all claims, demands, actions, liabilities, expenses or losses of any nature whatsoever,

including reasonable attorney's fees, asserted against or incurred by the Operator on account of any of the obligations, acts, liabilities or debts of the Manager not assumed or indemnified hereunder by the Operator.


16.1 Waiver/Breach. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute a waiver of a subsequent breach of the same, or a breach or subsequent breach of any other, term or condition.

16.2 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never constituted a part hereof, and the remaining provisions shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part of this Agreement a legal, valid and enforceable provision as similar in terms to the illegal, invalid or unenforceable provision as may be possible.

16.3 Further Assurances, Each party shall promptly and duly execute and deliver to the other, such further documents and assurances and take such actions as such party may reasonably request in order to more fully carry out the intent and purposes of this Agreement.

16.4 Time of Essence. Time is of the essence in this Agreement and in the observance of each and every covenant and obligation made and created hereby.

16.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, and all such counterparts together shall constitute but one and the same instrument.

16.6 Authorization. Each party represents to the other with respect to itself that the execution and performance of this Agreement have been duly authorized by all necessary laws, resolutions, corporate and other action, and this Agreement constitutes the valid and enforceable obligations of the parties in accordance with its terms.

16.7 Captions. The captions used herein are for convenience of reference only and shall not be construed in any manner to limit or modify any of the terms herein.

16.8 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia.

16.9 Facsimile Signatures. For purposes of this Agreement, a telecopied or facsimile document and signature shall be deemed as and serve as an original document and signature.



17.1 Assignment Generally. The parties shall not have the right to assign its rights and obligations under this Agreement without the prior written consent of the other party.

[Signature Page to Follow]


[Signature Page to Management Agreement]

IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be duly executed, as of the day and year first above written.







Its Manager