Exhibit 10.31
JayHawk
MEDICAL ACCEPTANCE CORPORATION
Health Care Provider Agreement
(Doctor Direct Program)
This Health Care Provider Agreement (this "Agreement") is entered into by
and between Jayhawk Medical Acceptance Corporation, a Texas corporation ("JMAC")
with its principal place of business at 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, and___________________________________________________________, a
__________________________________________________ ("Provider"), with its
principal place of business at__________________________________________________
_____________. JMAC and Provider desire by this Agreement to establish a
framework under which JMAC may purchase retail installment sales contracts (each
a "Contract") originated by Provider that finance health care services provided
by Provider. In consideration of the mutual agreements contained in this
Agreement, JMAC and Provider agree as follows:
ARTICLE 1. PURCHASE OF CONTRACTS
1.1 Contract Specifications. Provider will not submit a Contract to JMAC for
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purchase unless it meets each of the following specifications (the
"Contract Specifications"):
(a) the Contract (i) is in the form prescribed or approved by JMAC, (ii)
has not been rescinded, (iii) is a legal, enforceable, and undisputed
obligation of the person(s) who owes or guarantees payments under the
Contract ("Obligor"), subject to any express right of cancellation
provided in the Contract, and (iv) is in compliance with all
requirements of applicable federal, state and local laws and
regulations, including without limitation applicable usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Federal Trade Commission Act, and other federal and state consumer
credit laws and regulations;
(b) Provider has received the cash down payment, if any, described in the
Contract and no part of that cash down payment has been financed in
any manner, and all amounts indicated in the Contract to be paid by
Provider to any third party, if any, have been paid; and
(c) the health care services and other services and products incidental
thereto ("Health Care Services") financed by the Contract will be
substantially initiated or completed within 30 days following the date
of the Contract.
1.2 Acceptance of Contracts. Each purchase of a Contract by JMAC will be upon
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and subject to the following terms and conditions:
(a) The Contract and all writings and business records relating to such
Contract (the "Contract File") are in compliance with the requirements
and policies issued by JMAC to Provider from time-to-time regarding
Provider's submission of Contracts to JMAC. Such requirements and
policies may include, without limitation, (i) qualifications required
of Obligors, and (ii) specifications of documents to be included in
each Contract File.
(b) JMAC's issuance of a preliminary fax approval for a Contract will not
be deemed to be JMAC's acceptance of such Contract for purchase under
this Agreement. Acceptance of a Contract for purchase under this
Agreement will occur only when JMAC receives and approves the related
Contract File and written proof signed by Provider that the related
Health Care Services have been either substantially initiated or
completed within the 30-day period immediately following the date of
such Contract. Upon the request of JMAC, Provider will furnish JMAC
with any additional
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documents that JMAC deems necessary or appropriate to enable JMAC to
exercise its rights and duties with respect to each Contract purchased
by JMAC under this Agreement.
(c) JMAC is hereby authorized and empowered to endorse Provider's name on
any payments made payable to Provider and execute and deliver, in
JMAC's own name, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all
other comparable instruments, with respect to each Contract purchased
by JMAC under this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement or
otherwise, Provider shall have no obligation to submit any Contracts
to JMAC for purchase under this Agreement, and JMAC shall have no
obligation to purchase any Contracts submitted to JMAC by Provider.
1.3 Purchase of Contracts. Prior to JMAC's acceptance of a Contract for
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purchase, JMAC and Provider will mutually agree upon the price to be paid
by JMAC for the Contract (the "Purchase Price"). JMAC will pay to Provider
the Purchase Price for a Contract following JMAC's acceptance of the
Contract for purchase pursuant to Section 1.2. Upon payment of the
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Purchase Price with respect to a Contract, (a) Provider will have sold to
JMAC all of Provider's right, title and interest in and to, and Provider
will no longer have any right, title or interest in and to, such Contract
(including, but not limited to, all payments on or collections with respect
to such Purchased Contract), and (b) such Contract will become a "Purchased
Contract" for purposes of this Agreement.
1.4 Purchased Contract Payments Received by Provider. Provider will forward to
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JMAC all payments it may receive on Purchased Contracts by no later than
the next business day following the day on which it received any such
payments.
1.5 Cancellation of Health Care Services. If an Obligor cancels Provider's
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provision of Health Care Services at any time following the assignment of
the related Contract to JMAC and such cancellation results in a reduction
of any amounts payable under such Contract, then Provider will pay to JMAC
the difference between (a) the Purchase Price for the Contract, and (b) the
amount that would have been paid by JMAC to Provider as the Purchase Price
for such Contract based upon the result of subtracting (i) the amount of
such reduction in amounts payable under such Contract, from (ii) the
original amount financed by such Contract. Provider will pay such
difference to JMAC within 15 days following its receipt of JMAC's statement
setting forth the amount thereof.
1.6 Contract Forms and Services. For Contracts that Provider intends to submit
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to JMAC for purchase, JMAC will, at the request of Provider, fill-in the
blanks of the Contracts with information specified by Provider, and JMAC
will then transmit the completed Contracts to Provider. Provider will be
responsible for verifying that each such completed Contract accurately sets
forth the information specified by Provider and otherwise complies with the
provisions of this Agreement with respect to Contracts. If Provider does
not request that JMAC complete Contracts for Provider as provided above,
JMAC will provide blank form Contracts for Provider's use under this
Agreement.
ARTICLE 2. INTENTIONALLY OMITTED
ARTICLE 3. PROVIDER'S REPRESENTATIONS AND COVENANTS
3.1 Certain Representations of Provider. Provider hereby, and upon the
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submission of each Contract for purchase by JMAC under this Agreement,
makes the following representations and warranties:
(a) Provider has the power, authority and legal right to originate and own
such Contract, and is duly qualified to do business in the state in
which such Contract was originated, and such Contract has not been
originated in, and is not subject to the laws of, any jurisdiction in
which the assignment of such Contract as contemplated under this
Agreement would be unlawful, void or voidable.
(b) Provider has complied with all federal, state, and local laws and
regulations applicable to it, the
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related Health Care Services, and/or the health care professional
performing or assisting in the performance of the Health Care
Services. Provider's charges for the Health Care Services are usual,
customary and reasonable for the type of services involved, the
geographic area in which the Health Care Services are to be performed,
and the expertise of the health care professional providing the Health
Care Services.
(c) Such Contract fulfills all Contract Specifications and was fully and
properly executed by the parties thereto. There is only one executed
original of such Contract and the Obligor was provided a copy of such
executed original Contract at the time of execution of such Contract.
All representations and warranties contained in the assignment section
of the Contract are true and correct as of the date of transfer to
JMAC, and Provider is in compliance with the terms of this Agreement.
(d) Upon payment of the Purchase Price to Provider, JMAC will obtain good
and indefeasible title to such Purchased Contract free and clear of
any liens, claims or encumbrances thereon.
3.2 Indemnities. Provider will defend, indemnify, and hold harmless JMAC from
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and against any and all costs, expenses, losses, damages, claims, actions
and liabilities (including without limitation reasonable attorneys' fees
and expenses of litigation) arising out of or resulting from (a) any breach
of any of the representations, warranties, or covenants made by Provider in
this Agreement, (b) any and all taxes that may at any time be asserted
against JMAC with respect to the transactions contemplated in this
Agreement (other than taxes measured by the net income of JMAC or taxes or
fees imposed upon JMAC's registration, qualification or licensing),
including without limitation any sales, use, gross receipts, tangible or
intangible personal property or ad valorem taxes, and any costs and
expenses in defending against same, or (c) Provider's sale and/or provision
of any Health Care Services or Provider's origination of any Contract.
With respect to any matter subject to indemnification under this Section,
JMAC will promptly notify Provider in writing of the matter and will allow
Provider to fully direct the defense and settlement thereof.
3.3 Insurance. Provider will obtain and maintain throughout the term of this
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Agreement and each Purchased Contract a professional malpractice liability
insurance policy adequately insuring and defending Provider against any and
all claims, actions, damages, liabilities, costs and expenses that may
arise in connection with Health Care Services provided by Provider.
Provider will provide JMAC with certificates of insurance evidencing such
policy within 30 days following JMAC's execution of this Agreement and
thereafter as such policy is renewed or replaced or as otherwise requested
by JMAC.
ARTICLE 4. ARBITRATION, TERMINATION, AND REMEDIES
4.1 Arbitration. Any dispute, controversy or claim which in any way relates to
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this Agreement, will, on the written demand of either party to the other
party, be determined and settled in Dallas, Texas by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association; provided that, each party will be entitled to seek
temporary injunctive relief from any court having jurisdiction regardless
of whether or not arbitration proceedings have been initiated under this
Section, but the final resolution of any such dispute, controversy or claim
will be determined by arbitration in accordance with this Section. The
arbitration will be before one neutral arbitrator to be selected in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Any award rendered by the arbitrator will be
final and conclusive upon the parties and any judgment thereon may be
enforced in any court having jurisdiction.
4.2 Termination. Either JMAC or Provider may terminate this Agreement upon 30
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days prior written notice to the other, or JMAC may terminate this
Agreement, upon the occurrence of an Event of Default (as defined in
Section 4.3), immediately upon the giving of notice of termination to
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Provider.
4.3 Event of Default. Each of the following constitutes an "Event of Default"
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under this Agreement: (a) the breach by Provider of any of its obligations
or covenants under this Agreement, which breach continues unremedied for a
period of ten days after JMAC provides written notice thereof to Provider;
(b) the breach
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by Provider of any representation or warranty set forth in this Agreement;
or (c) the misrepresentation by Provider of any information (written or
oral) or circumstances relating to any Contract submitted to JMAC, any
Obligor or any Health Care Services.
4.4 Effect of Termination. If this Agreement is terminated in accordance with
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Section 4.2, the provisions of Section 1.4, 1.5, Article 3, Section 4.1,
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4.3, 4.4, 4.5 and 4.6 and Article 5 will survive the termination of this
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Agreement.
4.5 JMAC's Remedies. If JMAC determines that an Event of Default, as defined
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in Section 4.3, has occurred or if any claim or action is made or brought
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against JMAC that arises out of or relates to Provider's sale and/or
provision of Health Care Services or Provider's origination of any
Contract, then Provider will:
(a) repurchase from JMAC the Purchased Contract(s) that is(are) the
subject of or affected by such Event of Default or claim or action for
an amount equal to the lesser of (i) the Purchase Price amount(s) paid
for such Purchased Contract(s), or (ii) the sum of all amounts
remaining to be paid on such Purchased Contract(s); or
(b) upon the demand of JMAC, which may be made in JMAC's sole discretion,
repurchase all of the Purchased Contracts for an amount equal to the
lesser of (i) the aggregate total Purchase Price amounts paid by JMAC
for all of the Purchased Contracts, or (ii) the aggregate total sum of
all amounts remaining to be paid on all the Purchased Contracts.
Provider will pay all reasonable costs associated with the transfer of
Purchased Contracts pursuant to this Section. Amounts payable by Provider
to JMAC under this Section will be due and payable within 30 days following
Provider's receipt of JMAC's demand therefor.
4.6 Limitation of Liability. Neither JMAC nor any of its officers, directors,
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employees, agents, nominees, attorneys-in-fact or affiliates (the "Liable
Entities") will be liable for any action lawfully taken or omitted to be
taken by any of the Liable Entities under or in connection with this
Agreement (except for its own gross negligence or willful misconduct). In
no event will the aggregate amount of damages recoverable against the
Liable Entities include any amounts for indirect, incidental,
consequential, or punitive damages or lost profits of any party, including
third parties. Each party must initiate any claim or cause of action
arising out of this Agreement within two years of the accrual of the claim
or cause of action.
ARTICLE 5. MISCELLANEOUS PROVISIONS
5.1 Notices. Wherever under this Agreement one party is required or permitted
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to give notices to the other, such notice shall be deemed received (a) when
personally delivered in hand or by overnight mail or courier service
providing evidence of delivery, or (b) three days after being sent via
United States certified mail, return receipt requested, to the address
specified on the first page of this Agreement. Either party may from time-
to-time change its notification address by giving the other party prior
written notice of the new address and the effective date thereof.
5.2 Delegation of Duties and Assignment. JMAC may execute any of its duties
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under this Agreement by or through agents, assignees, nominees or
attorneys-in-fact. This Agreement will be binding on the parties and their
respective permitted successors and assigns. Provider may not assign any
of its rights or obligations under this Agreement without the written
consent of JMAC; provided, however, that JMAC will not unreasonably
withhold consent to any assignment by Provider. JMAC may assign its rights
under this Agreement, and may sell or pledge Purchased Contracts and
payments thereon, and any assignee or pledgee will not, unless otherwise
agreed to between JMAC and such assignee or pledgee, assume any of JMAC's
obligations under this Agreement.
5.3 Governing Law; Venue. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas. Provider hereby
irrevocably submits to the jurisdiction of the state and federal courts of
the State of Texas and agrees and consents that service of process may be
made upon it in any legal
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proceeding relating to this Agreement by any means allowed under Texas or
federal law.
5.4 Relationship of Parties. Notwithstanding any provision to the contrary
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elsewhere in this Agreement, (a) JMAC is acting independently of Provider
and shall have no duties or responsibilities to Provider, except those
expressly set forth in this Agreement, (b) JMAC and Provider do not, by
virtue of this Agreement or otherwise, have any fiduciary relationship or
joint venture or partnership arrangement, and (c) no implied covenants,
duties, obligations, or liabilities shall be read into this Agreement or
otherwise exist between JMAC and Provider.
5.5 Litigation Costs. If a dispute arises between the parties with respect to
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the subject matter of this Agreement, except as otherwise expressly
provided in this Agreement, the prevailing party in litigation or other
dispute resolution proceeding will be entitled to reimbursement from the
nonprevailing party of its reasonable attorneys' fees, court costs, and
expenses arising out of such dispute.
5.6 Headings and Severability of Provisions. The headings contained in this
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Agreement are for convenience of reference only and shall not control or
affect the meaning or construction of any provisions hereof. If any one or
more of the provisions of this Agreement shall be for any reason whatsoever
held invalid or unenforceable, then such provisions shall be deemed
severable from the remaining provisions of this Agreement.
5.7 Setoff. JMAC may, at any time, at its sole option, set off and apply
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against any amounts due by it to Provider either under this Agreement or
otherwise, any amounts due to JMAC by Provider.
5.8 Rights Cumulative. Except for the provisions of Section 4.1 regarding
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arbitration, all rights and remedies set forth in this Agreement shall be
cumulative and in addition to and not in lieu of any other rights and
remedies available to either party at law, in equity, or otherwise, and may
be enforced concurrently or from time-to-time. No delay or omission in
insisting upon the strict observance or performance of any provision of
this Agreement or in exercising any right or remedy, shall be construed as
a waiver or relinquishment of such provision, nor shall it impair such
right or remedy.
5.9 Complete Agreement and Counterparts. This Agreement contains the complete
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agreement of the parties hereto, and supersedes any and all prior
agreements (whether written or oral) and prior courses of dealing. This
Agreement may be amended from time-to-time in writing by JMAC and Provider
or by written notice from JMAC to Provider. Any such amendment by written
notice from JMAC will be effective only if Provider submits a Contract for
purchase after the date of such notice. Should any provision of this
Agreement be in conflict with any provision of any Purchased Contract, the
provision set forth in this Agreement shall govern as between JMAC and
Provider. This Agreement may be executed in any number of counterparts,
either by facsimile or original signature, each of which shall be fully
effective as an original.
IN WITNESS WHEREOF, JMAC and Provider each have caused this Agreement to be
signed and delivered by its duly authorized representative to be effective as of
the date set forth below the signature of JMAC when executed by both parties.
Jayhawk Medical Acceptance Corporation Provider:
By: By:
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Xxxxxxx X. Xxxxxxxx, President Name (print):
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Effective Date: Title:
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(to be completed by JMAC)
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