EXHIBIT 10.44
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT ("Agreement") is made and entered into
on February 13, 2003, by and between GK FINANCING, LLC, a California limited
liability company ("GKF"), and AHS ALBUQUERQUE REGIONAL MEDICAL CENTER, LLC
("Hospital"), with reference to the following facts:
R E C I T A L S
WHEREAS, Hospital wants to lease a Leksell Stereotactic Gamma Knife
Unit, model C with Automatic Positioning System, manufactured by Elekta
Instruments, Inc., (hereinafter referred to as the "Equipment"); and
WHEREAS, GKF is willing to lease the Equipment which GKF has acquired
from Elekta Instruments, Inc., a Georgia corporation (hereinafter referred to as
"Elekta"), to Hospital, pursuant to the terms and conditions of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements set forth herein, and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Lease. Subject to and in accordance with the covenants and
conditions set forth in this Agreement, GKF hereby leases to Hospital, and
Hospital hereby leases from GKF, the Equipment. The Equipment to be leased to
Hospital pursuant to this Agreement shall include the Gamma Knife technology as
specified in Exhibit 1, including all hardware and software related thereto.
2. LGK Agreement. Simultaneously with the execution of this
Agreement, Hospital and Elekta shall enter into that certain LGK Agreement (the
"LGK Agreement"), a copy of which is attached hereto as Exhibit 1. Hospital
shall perform, satisfy and fulfill all of its obligations arising under the LGK
Agreement when and as required thereunder. Hospital acknowledges that GKF is a
third party beneficiary of the LGK Agreement and, in that capacity, GKF shall be
entitled to enforce Hospital's performance, satisfaction and fulfillment of its
obligations thereunder.
3. Term of the Agreement. The initial term of this Agreement (the
"Term") shall commence as of the date hereof and, unless earlier terminated or
extended in accordance with the provisions of this Agreement, shall continue for
a period of ten (10) years following the date of the performance of the first
clinical Procedure (as defined in Section 8) performed on the Equipment (the
"First Procedure Date") at the Site (as
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defined in Section 5.1). The parties agree to amend this Agreement to
memorialize the First Procedure Date upon the performance of the first clinical
Procedure performed on the Equipment. Hospital's obligation to make the rental
payments to GKF for the Equipment described in Section 8 below shall commence as
of the First Procedure Date.
4. User License.
4.1 Hospital shall apply for and use its reasonable
efforts to obtain in a timely manner a User License from the Nuclear Regulatory
Commission and, if necessary, from the applicable state agency authorizing it to
take possession of and maintain the Cobalt supply required in connection with
the use of the Equipment during the term of this Agreement. Hospital also shall
apply for and use its reasonable efforts to obtain in a timely manner all other
licenses, permits, approvals, consents and authorizations which may be required
by state or local governmental or other regulatory agencies for the development,
construction and preparation of the Site, the charging of the Equipment with its
Cobalt supply, the conduct of acceptance tests with respect to the Equipment,
and the use of the Equipment during the Term, as more fully set forth in Article
2.1 of the LGK Agreement. GKF shall provide assistance to the Hospital in
applying for and for obtaining all such licenses, permits, approvals, consents
or authorizations. In the event Hospital is unable to obtain a required license,
permit, approval, consent or authorization, all parties shall be released from
further performance or any obligations or duties arising under this Agreement.
5. Delivery of Equipment; Site.
5.1 GKF shall coordinate with Elekta and Hospital to have
the Equipment delivered to Hospital at the site described in Exhibit 5.1 of this
Agreement (the "Site") on or prior to the delivery date agreed upon by Elekta
and GKF when the Equipment is ordered by GKF. GKF makes no representations or
warranties concerning delivery of the Equipment to the Site or the actual date
thereof. Notwithstanding the foregoing, if the Equipment is not delivered to the
Site within one (1) year after the agreed-upon delivery date, Hospital shall
have the option to terminate this Agreement (unless such non-delivery was due to
causes beyond the reasonable control of GKF or Elekta in which case Hospital
shall not have the right to terminate), provided that in no event shall any such
non-delivery be deemed to be a breach, default or Event of Default by GKF
hereunder or result in any damages, fees or penalties assessed against GKF.
5.2 Hospital shall provide access to the Site for the
Equipment. GKF at its cost and expense shall prepare the Site for the Equipment
in accordance with Elekta's guidelines, specifications, technical instructions
and site planning criteria (which site planning criteria are attached as Exhibit
5.2 of this Agreement) (collectively the "Site Planning Criteria"). The location
of the Site has been agreed upon by Hospital and GKF as described in Exhibit 5.1
of this agreement.
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6. Site Preparation and Installation of Equipment.
6.1 GKF, at its cost, expense and risk, shall prepare all
plans and specifications required to construct and improve the Site for the
installation, use and operation of the Equipment during the Term. The plans and
specifications shall comply in all respects with the Site Planning Criteria and
with all applicable federal, state and local laws, rules and regulations. All
plans and specifications prepared by or on behalf of GKF (and all material
changes thereto following approval by Hospital and Elekta) shall be subject to
the written approval of Hospital and Elekta prior to commencement of
construction at the Site. GKF shall provide Hospital and Elekta with a
reasonable period of time for the review and consideration of all plans and
specifications following the submission thereof for approval. Following approval
of the plans and specifications by Hospital and Elekta, GKF, at its cost and
expense, shall assist Hospital in obtaining all permits, certifications,
approvals or authorizations required by applicable federal, state or local laws,
rules or regulations necessary to construct and improve the Site for the
installation, use and operation of the Equipment.
6.2 Based upon the plans and specifications approved by
Hospital and Elekta, GKF, at its cost, expense and risk, shall prepare,
construct and improve the Site as necessary for the installation, use and
operation of the Equipment during the Term, including, without limitation,
providing all temporary or permanent shielding required for the charging of the
Equipment with the Cobalt supply and for its subsequent use, selecting and
constructing a proper foundation for the Equipment and the temporary or
permanent shielding, aligning the Site for the Equipment, and installing all
electrical systems and other wiring required for the Equipment. In connection
with the construction of the Site, GKF, at its cost and expense, shall select,
purchase and install all radiation monitoring equipment, devices, safety
circuits and radiation warning signs required at the Site in connection with the
use and operation of the Equipment, all in accordance with applicable federal,
state and local laws, rules, regulations or custom.
6.3 GKF, at its cost, expense and risk, shall be
responsible for the installation of the Equipment at the Site, including the
positioning of the Equipment on its foundation at the Site in compliance with
the Site Planning Criteria.
6.4 GKF ensures that upon completion of construction, the
Site shall (a) comply in all respects with the Site Planning Criteria and all
applicable federal, state and local laws, rules and regulations, and (b) be safe
and suitable for the ongoing use and operation of the Equipment during the Term.
6.5 GKF shall use its best efforts to satisfy its
obligations under this Section 6 in a timely manner. GKF shall keep Hospital
informed on a regular basis of its progress in the design of the Site, the
preparation of plans and specifications, the construction and improvement of the
Site, and the satisfaction of its other obligations
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under this Section 6. In all events, GKF shall complete all construction and
improvement of the Site required for the installation, positioning and testing
of the Equipment on or prior to the delivery date described in Section 5.1
above. During the Term, Hospital, at its cost and expense, shall maintain the
Site in a good working order, condition and repair, reasonable wear and tear
excepted.
7. Marketing Hospital's annual marketing budget and amount
dispersed for the marketing of the Equipment shall be no less than *. The
Hospital may allocate a portion of the cost Hospital marketing personnel toward
this annual obligation. Hospital will provide GKF documentation of time spent
marketing the Gamma Knife by Hospital personnel. The marketing plan shall be
drafted by the Hospital and submitted to GKF for its approval, which shall not
be unreasonably withheld.
8. Per Procedure Payments. As rent for the lease of the Equipment
to Hospital pursuant to this Agreement, Hospital shall pay to GKF the sum of *
for each "Procedure" that is performed by Hospital or its representatives or
affiliates, irrespective of whether the Procedure is performed on the Equipment
or using any other equipment or devices. As used herein, a "Procedure" means any
treatment that involves stereotactic, external, single fraction, conformal
radiation, commonly called radiosurgery, that may include one or more isocenters
during the patient treatment session, delivered to any site(s) superior to the
foramen magnum. The parties acknowledge that the foregoing rent payment
constitutes a fair market value rental rate.
Within ten (10) days following the end of each month (or portion
thereof) during the term of this Agreement, Hospital shall inform GKF in writing
as to the number of Procedures performed during that month utilizing the
Equipment and any other equipment or devices. If no Procedures are performed by
Hospital or any other person utilizing the Equipment or any other equipment or
devices, no rent payments shall be owing by Hospital to GKF. GKF shall submit a
rent invoice to Hospital on the fifteenth (15th) and the last day of each
calendar month (or portion thereof) for the actual number of Procedures
performed utilizing the Equipment and any other equipment or devices during the
first and second half of the calendar month, respectively. Hospital shall pay
the rent invoice within thirty (30) days after submission by GKF to Hospital.
All or any portion of a rent invoice which is not paid in full within forty-five
(45) days after submission shall bear interest at the rate of one and one-half
percent (1.50%) per month (or the maximum monthly interest rate permitted to be
charged by law between an unrelated, commercial borrower and lender, if less)
until the unpaid rent invoice together with all accrued interest thereon is paid
in full. Subject to Section 20.1.1 below, if GKF shall at any time accept a rent
payment from Hospital after it shall become due, such acceptance shall not
constitute or be construed as a waiver of any or all of GKF's rights under this
Agreement, including the rights of GKF set forth in Section 20 hereof.
Within ten (10) days after Hospital's receipt of written request by
GKF, GKF shall have the right to audit Hospital's books and records during
normal business hours to
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verify the number of Procedures that have been performed by Hospital, and
Hospital shall provide GKF with access to such books and records; provided that
any patient names or identifiers shall not be disclosed.
9. Use of the Equipment.
9.1 The Equipment shall be used by Hospital only at the
Site and shall not be removed therefrom. Hospital shall use the Equipment only
in the regular and ordinary course of Hospital's business operations and only
within the capacity of the Equipment as determined by Elekta's specifications.
Hospital shall not use nor permit the Equipment to be used in any manner nor for
any purpose which, in the opinion of Elekta or GKF, the Equipment is not
designed or reasonably suitable.
9.2 This is an agreement of lease only. Nothing herein
shall be construed as conveying to Hospital any right, title or interest in or
to the Equipment, except for the express leasehold interest granted to Hospital
for the Term. All Equipment shall remain personal property (even though said
Equipment may hereafter become attached or affixed to real property) and the
title thereto shall at all times remain exclusively in GKF.
9.3 During the Term, upon the request of GKF, Hospital
shall promptly affix to the Equipment in a prominent place, or as otherwise
directed by GKF, labels, plates, insignia, lettering or other markings supplied
by GKF indicating GKF's ownership of the Equipment, and shall keep the same
affixed for the entire Term. Hospital hereby authorizes GKF to cause this Lease
or any statement or other instrument showing the interest of GKF in the
Equipment to be filed or recorded, or refiled or re-recorded, with all
governmental agencies considered appropriate by GKF. Hospital also shall
promptly execute and deliver, or cause to be executed and delivered, to GKF any
statement or instrument reasonably requested by GKF for the purpose of
evidencing GKF's interest in the Equipment, including financing statements and
waivers with respect to rights in the Equipment from any owners or mortgagees of
any real estate where the Equipment may be located.
9.4 Hospital shall (a) protect and defend GKF's ownership
of and title to the Equipment from and against all persons claiming against or
through Hospital, (b) at all times keep the Equipment free from any and all
liens, encumbrances, attachments, levies, executions, burdens, charges or legal
processes imposed against Hospital, (c) give GKF immediate written notice of any
matter described in clause (b), and (d) in the manner described in Section 23
below indemnify GKF harmless from and against any loss, cost or expense
(including reasonable attorneys' fees) with respect to any of the foregoing.
10. Additional Covenants of Hospital. In addition to the other
covenants of Hospital contained in this Agreement, Hospital shall, at its cost
and expense:
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10.1 Provide properly trained professional, technical and
support personnel and supplies required for the proper performance of Gamma
Knife procedures utilizing the Equipment. In this regard, Hospital shall
maintain on staff a minimum of two (2) Gamma Knife trained teams comprised of
neurosurgeons, radiation oncologists and physicists. In the event the Hospital
fails to maintain at least two trained teams in the use of the Equipment, the
Hospital shall not be deemed in default under this Agreement so long as Hospital
is making a good faith effort to recruit a replacement for the missing member(s)
of the team. GKF will provide training tuition for six (6) physicians. The Gamma
Knife shall be available for use by all credentialed neurosurgeons, radiation
oncologists and physicists in accordance with the Hospital's Medical Staff
Bylaws, rules and regulations and credentialing policies.
10.2 Direct, supervise and administer the provision of all
services relating to the performance of Procedures utilizing the Equipment in
accordance with all applicable laws, rules and regulations.
10.3 Provide reasonable and customary marketing materials
(i.e. brochures, announcements, etc.) together with administrative and physician
support (e.g., seminars for physicians by neurosurgeons and radiation
therapists, etc.) for the Equipment to be operated by the Hospital. The
obligation to provide marketing materials and administration and physician
support shall be included in, and not in addition to, the annual marketing
budget referenced in Section 7 above.
10.4 Keep and maintain the Equipment and the Site fully
protected, secure and free from unauthorized access or use by any person to the
extent that Hospital provides security for its other radiation oncology
services.
11. Additional Covenants of GKF. In addition to the other
covenants of GKF contained in this Agreement, GKF, at its cost and expense,
shall:
11.1 Use its best efforts to require Elekta to meets its
contractual obligations to GKF and Hospital upon delivery of the Equipment and
put the Equipment, as soon as reasonably possible, into good, safe and
serviceable condition and fit for its intended use in accordance with the
manufacturer's specifications, guidelines and field modification instructions.
11.2 Cause Hospital to enjoy the use of the Equipment,
free of the rights of any other persons except for those rights reserved by GKF
or granted to Elekta under the LGK Agreement.
12. Maintenance of Equipment; Damage or Destruction of Equipment.
12.1 During the Term and except as otherwise provided in
this Agreement, GKF, at its cost and expense, shall (a) maintain the Equipment
in good
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operating condition and repair, reasonable wear and tear excepted, and (b)
maintain in full force and effect a service agreement with Elekta (" Service
Agreement") and any other service or other agreements required to fulfill GKF's
obligation to repair and maintain the Equipment under this Section 12. Hospital
shall promptly notify GKF in the event of any damage or destruction to the
Equipment or of any required maintenance or repairs to the Equipment, regardless
of whether such repairs or maintenance are covered or not covered by the Service
Agreement. GKF shall pursue all remedies available to it under the Service
Agreement and under any warranties made by Elekta with respect to the Equipment
so that the Equipment will be free from defects in design, materials and
workmanship and will conform to Elekta's technical specifications concerning the
Equipment.
12.2 GKF and Elekta shall have the right to access the
Equipment for the purpose of inspection and the performance of repairs at all
reasonable times, upon reasonable advance notice and with a minimum of
interference or disruptions to Hospital's regular business operations.
12.3 Hospital shall be liable for, and in the manner
described in Section 23 below shall indemnify GKF from and against, any damage
to or destruction of the Equipment caused by the misuse, improper use, or other
intentional and wrongful or negligent acts or omissions of Hospital's officers
or employees, In the event the Equipment is damaged as a result of the misuse,
improper use, or other intentional and wrongful or negligent acts or omissions
of Hospital's officers or employees, to the extent such damage is not covered by
the Service Agreement or any warranties or insurance, GKF may service or repair
the Equipment as needed and the cost thereof shall be paid by Hospital to GKF
immediately upon written request together with interest thereon at the rate of
one and one-half percent (1.50%) per month (or the maximum monthly interest rate
permitted to be charged by law between an unrelated, commercial borrower and
lender, if less) and reasonable attorneys' fees and costs incurred by GKF in
collecting such amount from Hospital. Any work so performed by GKF shall not
deprive GKF of any of its rights, remedies or actions against Hospital for such
damages.
12.4 If the Equipment is rendered unusable as a result of
any physical damage to or destruction of the Equipment, Hospital shall give GKF
written notice thereof. GKF shall determine, within thirty (30) days after it is
given written notice of such damage or destruction, whether the Equipment can be
repaired. In the event GKF determines that the Equipment cannot be repaired (a)
GKF, at its cost and expense, shall replace the Equipment as soon as reasonably
possible taking into account the availability of replacement equipment from
Elekta, Elekta's other then existing orders for equipment, and the then existing
limitations on Elekta's manufacturing capabilities, and (b) this Agreement shall
continue in full force and effect as though such damage or destruction had not
occurred. In the event GKF determines that the Equipment can be repaired, GKF
shall cause the Equipment to be repaired as soon as reasonably possible
thereafter.
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Hospital shall fully cooperate with GKF to effect the replacement of the
Equipment or the repair of the Equipment (including, without limitation,
providing full access to the Site) following the damage or destruction thereof.
13. Alterations and Upgrades to Equipment.
13.1 Hospital shall not make any modifications,
alterations or additions to the Equipment (other than normal operating
accessories or controls) without the prior written consent of GKF. Hospital
shall not, and shall not permit any person other than representatives of Elekta
or any other person authorized by GKF to, effect any inspection, adjustment,
preventative or remedial maintenance, or repair to the Equipment without the
prior written consent of GKF. All modifications, alterations, additions,
accessories or operating controls incorporated in or affixed to the Equipment
(herein collectively called "additions" and included in the definition of
"Equipment") shall become the property of the GKF upon termination of this
Agreement.
13.2 The necessity and financial responsibility for
modifications, additions or upgrades to the Equipment, including the reloading
of the Cobalt-60 source, shall be mutually agreed upon by GKF and Hospital. In
the event GKF and Hospital agree to reload the Cobalt-60 source (i.e., in
approximately the eighth (8th) year of the Term), and GKF pays the costs
associated therewith, notwithstanding any provisions to the contrary herein, the
initial Term shall be automatically extended for a negotiated period of time.
13.3 If at any time on or after the date that is * after
the First Procedure Date *, the Equipment becomes obsolete (as determined in
accordance with Section 13.4 below), GKF agrees to evaluate and propose to
Hospital the option of an upgrade or to replace the existing Equipment. The
parties shall cooperate in good faith and use their best efforts to reach an
agreement regarding such upgrade or replacement. In the event the upgrade or
replacement is agreed upon by Hospital and GKF, the lease term will be extended
and/or the rental payments thereunder increased taking into account, among other
things, the expense incurred. In the event an upgrade to or replacement of the
Equipment is not agreed upon by Hospital and GKF within sixty (60) days of a
determination or agreement that the Equipment is obsolete, the Hospital shall
have the option to terminate this Agreement by giving a written notice thereof
to GKF not less than one hundred eighty (180) days prior to the effective date
of termination designated in Hospital's written notice.
13.4 Unless the parties agree that the Equipment is
obsolete, such determination shall be made in accordance with the provision of
this Section 13.4. A determination as to whether the Equipment is obsolete may
be requested in writing by either party at any time on or after the * and not
more than once during any twelve month period commencing from the *. Within ten
(10) days following the other party's receipt
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of such request, each party shall designate a practicing neurosurgeon or
radiation oncologist who shall have not less than ten (10) years experience in
the performance of radiosurgical procedures using various radiosurgical devices,
including the Gamma Knife. Within ten (10) days of such designation, each such
designee shall mutually agree upon and designate a third neurosurgeon or
radiation oncologist having the same qualifications as described above and who
shall have no relationship or medical staff privileges with either Hospital or
GKF. The three designated physicians ("Experts") shall have thirty (30) days,
from the date the third neurosurgeon is so designated, within which to determine
whether the Equipment is obsolete. The Equipment shall be deemed obsolete if two
of the three Experts determine that other equipment is more medically
appropriate than the Equipment to perform any Procedures. Any determination of
obsolescence must be in writing and must be signed two of the three Experts and
distributed to the parties pursuant to the Notice provisions in Section 24.14
herein. Unless at least two Experts agree that the Equipment is obsolete, the
Equipment shall not be deemed to be obsolete, and the party requesting the
determination shall be required to promptly reimburse the other party for any
costs or expenses incurred by the other party in connection with such
determination.
14. Financing of Equipment by GKF. GKF, in its sole discretion,
may finance the Equipment. Financing may be in the form of an installment loan,
a capitalized lease or other commercially available debt or financing
instrument. If GKF finances the Equipment through an installment loan, GKF shall
be required to provide the Equipment as collateral for the loan. If GKF finances
the Equipment through a capitalized lease, title shall vest with the lessor
until such time as GKF exercises its buy-out option under the lease, if any. If
required by the lender, lessor or other financing entity (the "Lender"), GKF may
assign its interest under this Agreement as security for the financing.
Hospital's interest under this Agreement shall be subject to the interests of
the Lender.
15. Equipment Operational Costs. Except as otherwise expressly
provided in this Agreement, Hospital shall be responsible and liable for all
costs and expenses incurred, directly or indirectly, in connection with the
operation and use of the Equipment during the Term, including, without
limitation, the costs and expenses required to provide trained physicians,
professionals, and technical and support personnel, supplies and other items
required to properly operate the Equipment and perform Procedures.
16. Taxes. GKF shall pay all sales or use taxes imposed or
assessed in connection with the use or purchase of the Equipment and all
personal property taxes imposed, levied or assessed on the ownership and
possession of the Equipment during the Term. In case of a failure by GKF to pay
any taxes, assessments, licenses or other charges when and as required under
this Section, Hospital may pay all or any part of such taxes, in which event the
amount paid by Hospital shall be immediately payable by GKF to Hospital upon
written request together with interest thereon at the rate of at the rate of one
and one-half percent (1.50%) per month (or the maximum monthly interest rate
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permitted to be charged by law between an unrelated, commercial borrower and
lender, if less).
17. No Warranties by GKF. Using the test protocol set forth in
Exhibit 17 of this Agreement, Hospital warrants that as of the First Procedure
Date, it shall have (a) thoroughly inspected the Equipment to the best of their
knowledge, (b) determined that to the best of its knowledge the Equipment is
consistent with the size, design, capacity and manufacture selected by it, and
(c) satisfied itself that to the best of its knowledge the Equipment is suitable
for Hospital intended purposes and is good working order, condition and repair.
GKF will work with Hospital in good faith to remedy any problems identified in
writing by Hospital during Hospital's inspection. GKF SUPPLIES THE EQUIPMENT
UNDER THIS AGREEMENT IN ITS "AS IS" CONDITION. GKF, NOT BEING THE MANUFACTURER
OF THE EQUIPMENT OR THE MANUFACTURER'S AGENT, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO THE EQUIPMENT'S
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, DESIGN, CONDITION,
DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR
THE LIKE. As between GKF and Hospital, Hospital shall bear all risks with
respect to the foregoing warranties. Notwithstanding anything to the contrary
contained in this Agreement, Hospital expressly waives any right to hold GKF
liable hereunder for, any claims, demands and liabilities arising out of or in
connection with the design, manufacture, possession or operation of the
Equipment, including, without limitation, injury to persons or property
resulting from the failure of, defective or faulty design, operation, condition,
suitability or use of the Equipment. and, in furtherance of the foregoing, GKF
shall not be liable for any direct, indirect and consequential losses or damages
suffered by Hospital or by any other person in connection with any of the
foregoing. All warranty or other similar claims with respect to the Equipment
shall be made by Hospital solely and exclusively against persons other than GKF,
including Elekta or any other manufacturers or suppliers. In this regard and
with prior written approval of GKF, Hospital may, in GKF's name, but at Hospital
sole cost and expense, enforce all warranties, agreements or representations, if
any, which may have been made by Elekta or manufacturers, suppliers or other
third parties regarding the Equipment to GKF or Hospital. Elekta's warranties
with respect to the Equipment are set forth in Exhibit C of the LGK Agreement.
GKF shall not be responsible for the delivery or operation of the Equipment or
for any delay or inadequacy of either or both of the foregoing.
18. Termination for Economic Justification. If, following the
initial thirty six (36) months after the First Procedure Date and following each
subsequent 12 month period thereafter during the Term, based upon the
utilization of the Equipment and other factors considered relevant by GKF in the
exercise of its reasonable discretion, within a reasonable period of time after
GKF's written request, Hospital does not provide GKF with a reasonable economic
justification to continue this Agreement and the utilization of
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the Equipment at the Hospital, then and in that event, GKF shall have the option
to terminate this Agreement by giving a written notice thereof to Hospital not
less than ninety (90) days prior to the effective date of the termination
designated in GKF's written notice; provided, however, so long as the Hospital
is averaging seventy (70) Procedures per twelve-month period, not taking into
account the initial twenty four months after the First Procedure Date, GKF shall
not have the option of terminating this Agreement pursuant to this Section 18.
19. Options to Extend Agreement. As of the end of the Term,
Hospital shall have the option either to:
19.1 Extend the Term of this Agreement for a specified
period of time and upon such other terms and conditions as may be agreed upon by
GKF and Hospital;
19.2 Terminate this Agreement as of the expiration of the
Term.
Hospital shall exercise one (1) of the two (2) options referred to above by
giving an irrevocable written notice thereof to GKF at least nine (9) months
prior to the expiration of the initial Term. Any such notice shall be sufficient
if it states in substance that Hospital elects to exercise its option and states
which of the two (2) options referred to above Hospital is exercising. If
Hospital fails to exercise the option granted herein at least nine (9) months
prior to the expiration of the initial Term, the option shall lapse and this
Agreement shall expire as of the end of the initial Term. Further, if Hospital
exercises the option specified in Section 19.1 above and the parties are unable
to mutually agree upon the length of the extension of the Term or any other
terms or conditions applicable to such extension prior to the expiration of the
Term, this Agreement shall expire as of the end of the initial Term.
20. Events of Default by Hospital and Remedies.
20.1 The occurrence of any one of the following shall
constitute an event of default under this Agreement (an "Event of Default"):
20.1.1 Hospital fails to pay any rent payment when
due pursuant to Paragraph 8 above and such failure continues for a period of
thirty (30) days after written notice thereof is given by GKF or its assignee to
Hospital; however, if Hospital cures the rent payment default within the
applicable thirty (30) day period, such default shall not constitute an Event of
Default.
20.1.2 Hospital attempts to remove, sell, transfer,
encumber, assign, sublet or part with possession of the Equipment or any items
thereof, except as expressly permitted herein.
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20.1.3 Hospital fails to observe or perform any of
its covenants, duties or obligations arising under this Agreement or the LGK
Agreement and such failure continues for a period of thirty (30) days after
written notice thereof by GKF to Hospital; however, if Hospital cures the
default within the applicable thirty (30) day period or if the default
reasonably requires more than thirty (30) days to cure, Hospital commences to
cure the default during the initial thirty (30) day period and Hospital
diligently completes the cure as soon as reasonably possible following the end
of the thirty (30) day period, such default shall not constitute an Event of
Default.
20.1.4 Hospital ceases doing business as a going
concern, makes an assignment for the benefit of creditors, admits in writing its
inability to pay its debts as they become due, files a voluntary petition in
bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking
for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present or future
statute, law or regulation or files an answer admitting the material allegations
of a petition filed against it in any such proceeding, consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator of it or of all or any
substantial part of its assets or properties, or it or its shareholders shall
take any action looking to its dissolution or liquidation.
20.1.5 Within sixty (60) days after the
commencement of any proceedings against Hospital seeking reorganization,
arrangement, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, such proceedings shall not have
been dismissed, or if within thirty (30) days after the appointment without
Hospital consent or acquiescence of any trustee, receiver or liquidator of it or
of all or any substantial part of its assets and properties, such appointment
shall not be vacated.
20.1.6 Hospital is suspended or terminated from
participation in the Medicare program.
20.2 Upon the occurrence of an Event of Default with
respect to Hospital, GKF may at its option do any or all of the following:
20.2.1 By written notice to Hospital, immediately
terminate this Agreement as to the Equipment, wherever situated. As a result of
the termination, GKF may enter upon the Site and remove the Equipment without
liability of any kind or nature for so doing or GKF may demand that Hospital
remove and return the Equipment to GKF, all at Hospital sole cost and expense.
20.2.2 Recover from Hospital as liquidated damages
for the loss of the bargain represented by this Agreement and not as a penalty
an amount equal to the present value of the unpaid estimated future rent
payments to be made by Hospital to
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GKF through the end of the Term discounted at the rate of nine percent (9%),
which liquidated damages shall become immediately due and payable. The unpaid
estimated future rent payments shall be based on the prior twelve (12) months
rent payments made by Hospital to GKF hereunder with an annual five (5%) percent
increase thereof through the end of the Term. Hospital and GKF acknowledge that
the liquidated damages formula set forth in this Section 20.2.2 constitutes a
reasonable method to calculate GKF's damages resulting from an Event of Default
under the circumstances existing as of the date of this Agreement. The
liquidated damages remedy available under this Section 20.2.2 shall apply if and
only to the extent an Event of Default has occurred under Sections 20.1.1 and/or
20.1.2 above.
20.2.3 Sell, dispose of, hold, use or lease the
Equipment, as GKF in its sole and absolute discretion may determine (and GKF
shall not be obligated to give preference to the sale, lease or other
disposition of the Equipment over the sale, lease or other disposition of
similar Equipment owned or leased by GKF).
20.2.4 Exercise any other right or remedy which may
be available to GKF under the Uniform Commercial Code or any other applicable
law or proceed by appropriate court action, without affecting GKF's title or
right to possession of the Equipment, to enforce the terms hereof or to recover
damages for the breach hereof or to cancel this Agreement as to the Equipment.
20.2.5 In addition to the foregoing remedies,
Hospital shall be liable to GKF for all reasonable attorneys fees, costs and
expenses incurred by GKF as a result of the Event of Default or the exercise of
GKF's remedies.
20.3 Upon termination of this Agreement or the exercise of
any other rights or remedies under this Agreement or available under applicable
law following an Event of Default, Hospital shall, without further request or
demand, pay to GKF all rent payments and other sums owing under this Agreement.
In the event that Hospital shall pay the liquidated damages referred to in
Section 20.2.2 above to GKF, GKF shall pay to Hospital promptly after receipt
thereof all rentals or proceeds received from the reletting or sale of the
Equipment during the balance of the initial Term (after deduction of all costs
and expenses, including reasonable attorneys fees and costs, incurred by GKF as
a result of the Event of Default), said amount never to exceed the amount of the
liquidated damages paid by Hospital. However, Hospital acknowledges that GKF
shall have no obligation to sell the Equipment. Hospital shall in any event
remain fully liable for all damages as may be provided by law and for all costs
and expenses incurred by GKF on account of such default, including but not
limited to, all court costs and reasonable attorneys' fees. The rights and
remedies afforded GKF under this Agreement shall be deemed cumulative and not
exclusive, and shall be in addition to any other rights or remedies to GKF
provided by law or in equity.
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21. Events of Default by GKF and Remedies.
21.1 The occurrence of any one of the following shall
constitute an Event of Default under this Agreement:
(a) GKF fails to observe or perform any of its
covenants, duties or obligations arising under this Agreement and such failure
continues for a period of thirty (30) days after written notice thereof is given
by Hospital to GKF; however, if GKF cures the default within the applicable
thirty (30) day period or if the default reasonably requires more than thirty
(30) days to cure, GKF commences to cure the default during the initial thirty
(30) day period and GKF diligently completes the cure as soon as reasonably
possible following the end of the thirty (30) day period, such default shall not
constitute an Event of Default.
(b) GKF ceases doing business as a going
concern, makes an assignment for the benefit of creditors, admits in writing its
inability to pay its debts as they become due, files a voluntary petition in
bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking
for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present or future
statute, law or regulation or files an answer admitting the material allegations
of a petition filed against it in any such proceeding, consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator of it or of all or any
substantial part of its assets or properties, or it or its shareholders shall
take any action looking to its dissolution or liquidation.
(c) Within sixty (60) days after the
commencement of any proceedings against GKF seeking reorganization, arrangement,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, such proceedings shall not have been
dismissed, or if within thirty (30) days after the appointment without GKF's
consent or acquiescence of any trustee, receiver or liquidator of it or of all
or any substantial part of its assets and properties, such appointment shall not
be vacated.
21.2 Upon the occurrence of an Event of Default with
respect to GKF, Hospital may at its option do any or all of the following:
(a) By written notice to GKF, immediately
terminate this Agreement as to the Equipment and, in such event, GKF shall
remove the Equipment at GKF's sole cost and expense.
(b) Seek to recover from GKF such loss as may be
realized by Hospital in the ordinary course of events as a result of the Event
of Default.
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(c) Exercise any other right or remedy which may
be available to Hospital under the Uniform Commercial Code or any other
applicable law or proceed by appropriate court action, without affecting
Hospital's use of the equipment, to enforce the terms hereof or to recover
damages for the breach hereof or to cancel this Agreement as to the Equipment.
21.3 In addition to the foregoing remedies, GKF shall be
liable to Hospital for all reasonable attorneys fees, costs and expenses
incurred by Hospital as a result of the Event of Default or the exercise of
Hospital's remedies. The rights and remedies afforded Hospital under this
Agreement shall be deemed cumulative and not exclusive, and shall be in addition
to any other rights or remedies to Hospital provided by law or in equity.
22. Insurance.
22.1 During the Term, GKF shall, at its cost and expense,
purchase and maintain in effect an all risk property and casualty insurance
policy covering the Equipment. The all risk property and casualty insurance
policy shall be for an amount not less than the replacement cost of the
Equipment. Hospital shall be named as an additional insured party on the all
risk property and casualty insurance policy to the extent of its interest in the
Equipment arising under this Agreement. The all risk property and casualty
insurance policy maintained by GKF shall be evidenced by a certificate of
insurance or other reasonable documentation which shall be delivered by GKF to
Hospital upon request following the commencement of this Agreement and as of
each annual renewal of such policy during the Term.
22.2 During the Term, Hospital shall, at its cost and
expense, purchase and maintain in effect general liability and professional
liability insurance policies covering the Site (together with all premises where
the Site is located) and the use or operation of the Equipment by Hospital or
its officers and directors. The general liability and professional liability
insurance policies shall provide coverage in amounts not less than One Million
Dollars ($1,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00)
annual aggregate. GKF shall be named as additional insured party on the general
liability and professional liability insurance policies to be maintained
hereunder by Hospital. The policies to be maintained by Hospital hereunder shall
be evidenced by a certificate of insurance or other reasonable documentation
which shall be delivered by Hospital upon request to GKF no later than the First
Procedure Date and as of each annual renewal of such policies during the Term.
22.3 During the construction of the Site and prior to the
First Procedure Date, Hospital, at its cost and expense, shall purchase and
maintain a general liability insurance policy which conforms with the coverage
amounts and other requirements described in Section 22.2 above and which names
GKF as an additional insured party.
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The policy to be maintained by Hospital hereunder shall be evidenced by a
certificate of insurance or other reasonable documentation which shall be
delivered by Hospital to GKF prior to the commencement of any construction at
the Site.
22.4 During the Term, Hospital shall purchase and maintain
all workers compensation insurance to the maximum extent required by applicable
law.
23. Indemnification.
23.1 By Hospital. Hospital shall be liable for and shall
indemnify, defend, protect and hold GKF and its members, managers, officers,
employees, agents and contractors (collectively "GKF") harmless from and against
all losses, claims, damages, liabilities, assessments, deficiencies, actions,
proceedings, orders, judgments, liens, costs and other expenses (including
reasonable attorney's fees) of any nature or kind whatsoever asserted against or
incurred by GKF (collectively "Damages") which in any manner arise out of or
relate to (a) the failure by Hospital to fully perform, observe or satisfy its
covenants, duties or obligations contained in this Agreement or in the LGK
Agreement; (b) negligent, intentional or wrongful acts or omissions by Hospital
or any of its officers, directors, agents, contractors (or their
subcontractors), or employees in connection with the use and operation of the
Equipment during the Term; (c) defects arising out of materials or parts
provided, modified or designed by Hospital for or with respect to the Site; (d)
the maintenance of the Site during the Term by Hospital; (e) Damages to the
Equipment caused by the negligent or wrongful acts or omissions of Hospital, its
agents, officers, employees or contractors (if the Equipment is destroyed or
rendered unusable, subject to Section 23.7 below, this indemnity shall extend up
to (but not exceed) the full replacement value of the Equipment at the time of
its destruction less salvage value, if any); (f) the events or occurrences
described in Article 7.3 of the LGK Agreement to the same extent that Hospital
agrees to indemnify Elekta thereunder(other than with respect to the failure of
the Site to comply with the Site Planning Criteria or defective maintenance of
the Equipment by or for Hospital); and (g) any other matters for which Hospital
has specifically agreed to indemnify GKF pursuant to this Agreement.
23.2 By GKF. GKF shall be liable for and shall indemnify,
defend, protect and hold Hospital and its members, managers, officers,
directors, employees, agents and contractors (collectively "Hospital") harmless
from and against all losses, claims, damages, liabilities, assessments,
deficiencies, actions, proceedings, orders, judgments, liens, costs and other
expenses (including reasonable attorney's fees) of any nature or kind whatsoever
asserted against or incurred by Hospital (collectively "Damages") which in any
manner arise out of or relate to (a) the failure by GKF to fully perform,
observe or satisfy its covenants, duties or obligations contained in this
Agreement; (b) defects in the preparation, construction and improvement of the
Site by GKF or in installation or positioning the Equipment at the Site by GKF;
(c) defects arising out of materials or parts provided, modified or designed by
GKF for or with
16
respect to the Site; and/or (d) negligent, intentional or wrongful acts or
omissions by GKF or any of its officers, directors, agents, contractors (or
their subcontractors), or employees in connection with the construction and
preparation of the Site. Further, neither the review and approval of Site plans,
specifications and/or positioning plans by Hospital and/or Elekta, nor the
construction of any other Site preparation, shall relieve GKF for liability for
damages to the Equipment caused by the failure to comply with applicable
federal, state or local laws or regulations, including building codes, or those
portions of the Site Planning Criteria relating to the load bearing capacity of
the floor of the treatment room and to radiation protection. If the Equipment is
destroyed or rendered unusable, subject to Section 23.7 below, this indemnity
shall extend up to (but not exceed) the full replacement value of the Equipment
at the time of its destruction less salvage value, if any).
23.3 Upon the occurrence of an event for which either
Hospital and/or GKF is entitled to indemnification under this Agreement, the
indemnified party shall give written notice thereof to the indemnifying party
setting forth the type and amount of Damages. If the indemnity relates to a
Third Party Claim (as defined in Section 23.4 below), the matter shall be
subject to Section 23.4 below. If the indemnity relates to any Damages other
than a Third Party Claim, not more than thirty (30) days after the indemnified
party's written notice is given, the indemnifying party either shall acknowledge
its obligation in writing to the indemnified party to indemnify hereunder and
pay the Damages in full to the indemnified party or dispute its obligation to
indemnify in a written notice delivered the indemnified party. If the
indemnifying party disputes the obligation to indemnify, the parties shall meet
and negotiate in good faith to mutually resolve the disagreement regarding
indemnification.
23.4 The indemnified party shall give written notice to
the indemnifying party as soon as reasonably possible after the indemnified
party has knowledge of any third party claim or legal proceedings ("Third Party
Claim") for which the indemnified party is entitled to indemnification under
this Section 23. The indemnifying party shall (a) immediately assume, at its
sole cost and expense, the defense of the Third Party Claim with legal counsel
approved by the indemnified party (which approval will not be unreasonably
withheld, delayed or conditioned), and (b) as soon as reasonably possible after
the indemnified party's written notice is given to the indemnifying party,
acknowledge in writing to the indemnified party its obligation to indemnify the
indemnified party in accordance with the terms of this Agreement. If the
indemnifying party fails to assume the defense of a Third Party Claim or fails
to timely acknowledge in writing its obligation to indemnify the indemnified
party, the indemnified party may assume the defense of the Third Party Claim in
the manner described in Section 23.5 below. The indemnified party shall
cooperate with the indemnifying party in the defense of any Third Party Claim.
Any settlement or compromise of a Third Party Claim to which the indemnified
party is a party shall be subject to the express written approval of the
indemnified party, which approval shall not be unreasonably withheld, delayed or
17
conditioned as long as an unconditional term of the settlement or compromise is
the full and absolute release of the indemnified party from all Damages arising
out of the Third Party Claim. The indemnified party, at its own cost and
expense, may participate on its own behalf with legal counsel of its own
selection in the defense of any Third Party Claim which may have a material
impact on the indemnified party.
23.5 If the indemnifying party fails to promptly assume
the defense of any Third Party Claim, the indemnified party may assume the
defense of the Third Party Claim with legal counsel selected by the indemnified
party, all at the indemnifying party's cost and expense. The defense of an
action by the indemnified party under this Section 23.5 shall not impair, limit
or otherwise restrict the indemnifying party's indemnification obligations
arising under this Section 23 or the indemnified party's right to enforce such
obligations.
23.6 The indemnity obligations under this Section 23 shall
expire on the date that is five (5) years following the expiration or
termination of this Agreement.
23.7 The indemnification obligations set forth in this
Agreement are intended to supplement, and not supersede, supplant or replace,
any coverage for Damages which may be available under any insurance policies
that may be maintained by GKF or Hospital. In the event any Damages may be
covered by insurance policies, the parties shall exercise good faith and use
their best efforts to obtain the benefits of and apply the available insurance
coverage to the Damages subject to indemnification under this Agreement. In the
event that an insurer provides coverage under an insurance policy on the basis
of a "reservation of rights", the indemnification obligations under this
Agreement shall apply to all Damages which are finally determined as not being
covered under the insurance policy.
24. Miscellaneous.
24.1 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Hospital shall not assign this Agreement or any of its rights
hereunder or sublease the Equipment without the prior written consent of GKF,
which consent shall not be unreasonably withheld; provided, however that the
Hospital may assign this Agreement without prior written consent of GKF to an
entity controlled by, controlling, or under common control with the Hospital and
which entity is the holder of the general acute care hospital license for the
facility at which the Equipment is located, and provided further, that such
entity shall have credit rating and financial position equivalent to that of
Hospital as reasonably determined by GKF. An assignment or sublease shall not
relieve Hospital of any liability for performance of this Agreement during the
remainder of the Term. Any purported assignment or sublease made without GKF's
prior written consent shall be null, void and of no force or effect; provided,
however that the Hospital may assign this Agreement
18
without prior written consent of GKF to an entity controlled by, controlling, or
under common control with the Hospital and which entity is the holder of the
general acute care hospital license for the facility at which the Equipment is
located, and provided further, that such entity shall have a credit rating and
financial position equivalent to that of Hospital as reasonably determined by
GKF.
24.2 Agreement to Perform Necessary Acts. Each party
agrees to perform any further acts and execute and deliver any further documents
which may be reasonably necessary or otherwise reasonably required to carry out
the provisions of this Agreement.
24.3 Validity. If for any reason any clause or provision
of this Agreement, or the application of any such clause or provision in a
particular context or to a particular situation, circumstance or person, should
be held unenforceable, invalid or in violation of law by any court or other
tribunal of competent jurisdiction, then the application of such clause or
provision in contexts or to situations, circumstances or persons other than that
in or to which it is held unenforceable, invalid or in violation of law shall
not be affected thereby, and the remaining clauses and provisions hereof shall
nevertheless remain in full force and effect.
24.4 Attorney's Fees and Costs. In the event of any
action, arbitration or other proceedings between or among the parties hereto
with respect to this Agreement, the non-prevailing party or parties to such
action, arbitration or proceedings shall pay to the prevailing party or parties
all costs and expenses, including reasonable attorneys' fees, incurred in the
defense or prosecution thereof by the prevailing party or parties. The party
which is a "prevailing party" shall be determined by the arbitrator(s) or
judge(s) hearing the matter and shall be the party who is entitled to recover
his, her or its costs of suit, whether or not the matter proceeds to a final
judgment, decree or determination. A party not entitled to recover his, her or
its costs of suit shall not recover attorneys' fees. If a prevailing party or
parties shall recover a decision, decree or judgment in any action, arbitration
or proceeding, the costs and expenses awarded to such party may be included in
and as part of such decision, decree or judgment.
24.5 Entire Agreement; Amendment. This Agreement together
with the Exhibits attached hereto constitutes the full and complete agreement
and understanding between the parties hereto concerning the subject matter
hereof and shall supersede any and all prior written and oral agreements with
regard to such subject matter. This Agreement may be modified or amended only by
a written instrument executed by all of the parties hereto.
24.6 Number and Gender. Words in the singular shall
include the plural, and words in a particular gender shall include either or
both additional genders, when the context in which such words are used indicates
that such is the intent.
19
24.7 Effect of Headings. The titles or headings of the
various paragraphs hereof are intended solely for convenience or reference and
are not intended and shall not be deemed to modify, explain or place any
construction upon any of the provisions of this Agreement.
24.8 Counterparts. This Agreement may be executed in one
or more counterparts by the parties hereto. All counterparts shall be construed
together and shall constitute one agreement.
24.9 Governing Law. This Agreement shall be interpreted
and enforced in accordance with the internal laws, and not the law of conflicts,
of the State of New Mexico applicable to agreements made and to be performed in
that State.
24.10 Exhibits. All exhibits attached hereto and referred
to in this Agreement are hereby incorporated by reference herein as though fully
set forth at length.
24.11 Ambiguities. The general rule that ambiguities are to
be construed against the drafter shall not apply to this Agreement. In the event
that any provision of this Agreement is found to be ambiguous, each party shall
have an opportunity to present evidence as to the actual intent of the parties
with respect to such ambiguous provision.
24.12 Representations. Each of the parties hereto
represents (a) that no representation or promise not expressly contained in this
Agreement has been made by any other party hereto or by any of its agents,
employees, representatives or attorneys; (b) that this Agreement is not being
entered into on the basis of, or in reliance on, any promise or representation,
expressed or implied, other than such as are set forth expressly in this
Agreement; (c) that it has been represented by counsel of its own choice in this
matter or has affirmatively elected not to be represented by counsel; (d) it is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (e) it has full power and authority to
execute, deliver and perform this Agreement, and (f) the execution, delivery and
performance of this Agreement has been duly authorized by all necessary
corporate or other similar action.
24.13 Non-Waiver. No failure or delay by a party to insist
upon the strict performance of any term, condition, covenant or agreement of
this Agreement, or to exercise any right, power or remedy hereunder or under law
or consequent upon a breach hereof or thereof shall constitute a waiver of any
such term, condition, covenant, agreement, right, power or remedy or of any such
breach or preclude such party from exercising any such right, power or remedy at
any later time or times.
24.14 Notices. All notices, requests, demands or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be delivered to the party to whom notice is to be given
either (a) by personal delivery (in which case such notice shall be deemed to
have been duly given on the date of delivery),
20
(b) by next business day air courier service (e.g., Federal Express or other
similar service) (in which case such notice shall be deemed given on the
business day following deposit with the air courier service), or (c) by United
States mail, first class, postage prepaid, registered or certified, return
receipt requested (in which case such notice shall be deemed given on the third
(3rd) day following the date of mailing), and properly addressed as follows:
To GKF: Xxxxx X. Xxxxxx
Chief Executive Officer
GK Financing, LLC
Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
To Hospital: AHS Albuquerque Regional Medical Center, L.L.C.
X.X. Xxx 00000
Xxxxxxxxxxx Xxx Xxxxxx 00000
Attn: CEO
CC Ardent Health Services, LLC
Xxx Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
A party to this Agreement may change his, her or its address for purposes of
this Section by giving written notice to the other parties in the manner
specified herein.
24.15 Special Provisions Respecting Medicare and Medicaid
Patients
24.15.1 Hospital and GKF shall generate such records
and make such disclosures as may be required, from time to time, by the
Medicare, Medicaid and other third party payment programs with respect to this
Agreement in order to meet all requirements for participation and payment
associated with such programs, including but not limited to the matters covered
by Section 1861(v)(1)(I) of the Social Security Act.
24.15.1 For the purpose of compliance with Section
1861(v)(1)(I) of the Social Security Act, as amended, and any regulations
promulgated pursuant thereto, both parties agree to comply with the following
statutory requirements (a) Until the expiration of four (4) years after the
termination of this Agreement, both parties shall make available, upon written
request to the Secretary of Health and Human Services or, upon request, to the
Comptroller General of the United States, or any of their duly authorized
representatives, the contract, and books, documents and records of such party
that are necessary to certify the nature and extent of such costs, and (b) if
either
21
party carries out any of the duties of the contract through a subcontract with a
value or cost of $10,000 or more over a twelve month period, with a related
organization, 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 upon request to the Comptroller General, or any of
their duly authorized representatives the subcontract, and books, documents and
records of such organization that are necessary to verify the nature and extent
of such costs.
24.16 Force Majeure. Failure to perform by either party
will be excused in the event of any delay or inability to perform its duties
under this Agreement directly or indirectly caused by conditions beyond its
reasonable control, including, without limitation, fires, floods, earthquakes,
snow, ice, disasters, acts of God, accidents, riots, wars, operation of law,
strikes, governmental action or regulations, shortages of labor, fuel, power,
materials, manufacturer delays or transportation problems. Notwithstanding the
foregoing, all parties shall make good faith efforts to perform under this
Agreement in the event of any such circumstance. Further, once such an event is
resolved, the parties shall again perform their respective obligations under
this Agreement.
25. Non-Compete. During the term of this Agreement, neither GKF
nor any of its affiliates shall lease, sell, finance or otherwise facilitate the
sale, lease or financing of any equipment that performs any Procedures to any
person or entity within a thirty (30) mile radius of the Hospital. In addition,
for a one year period following the termination or expiration of the Term of
this Agreement, GKF shall not permit any person or entity that it is associated
with contractually, directly or thorough use of its affiliates, to clinically
treat patients within a thirty (30) mile radius of the Hospital using Equipment
that performs any Procedures. For the purposes of this agreement, the term
"affiliates" with respect to GKF means any entity controlling, controlled by or
under common control with GKF, exclusive of Elekta or affiliates of Elekta.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
"GKF" GK FINANCING, LLC,
a California limited liability company
By: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx,
Chief Executive Officer
"HOSPITAL" AHS ALBUQUERQUE REGIONAL
MEDICAL CENTER, LLC
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title Chief Executive Officer
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title President
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