UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
(Mark One)
x |
Annual
Report Pursuant To Section 13 or 15(d) Of The Securities Exchange Act of 1934
For The Fiscal Year Ended December 31, 2015 |
or
¨ |
Transition Report Pursuant To Section 13 or 15(d) Of The Securities Exchange Act
of
1934 For The Transition Period From _______________ to _______________ . |
Commission file number 1-08789
American Shared Hospital Services
(Exact name of registrant as specified in its charter)
California | 94-2918118 | |
(State or other jurisdiction of | (IRS Employer | |
incorporation or organization) | Identification No.) |
Four Embarcadero Center, Suite 3700, San Francisco, California | 94111-4107 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (415) 788-5300
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
Common Stock No Par Value | NYSE MKT |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):
Large accelerated filer ¨ | Accelerated Filer ¨ | Non-accelerated Filer ¨ | Smaller reporting company x |
Indicate by check mark if the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
As of June 30, 2015, the aggregate market value of the common stock held by non-affiliates of the registrant was approximately $8,525,000.
Number of shares of common stock of the registrant outstanding as of March 25, 2016: 5,364,000.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive Proxy Statement for the 2016 Annual Meeting of Shareholders are incorporated by reference into Part III of this report.
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Certain matters discussed in this Annual Report on Form 10-K other than statements of historical information are “forward-looking statements.” The Private Securities Litigation Reform Act of 1995 has established that these statements qualify for safe harbors from liability. Forward-looking statements may include words like we “believe”, “anticipate”, “target”, “expect”, “pro forma”, “estimate”, “intend”, “will”, “is designed to”, “plan” and words of similar meaning. Forward-looking statements describe our future plans, objectives, expectations or goals. Such statements address future events and conditions concerning and include, but are not limited to, such things as:
· | capital expenditures |
· | earnings |
· | liquidity and capital resources |
· | financing of our business |
· | government programs and regulations |
· | legislation affecting the health care industry |
· | the development of our proton beam therapy business |
· | accounting matters |
· | compliance with debt covenants |
· | competition |
· | technology |
· | interest rates |
These forward-looking statements involve known and unknown risks that may cause our actual results in future periods to differ materially from those expressed in any forward-looking statement. Factors that would cause or contribute to such differences include, but are not limited to, such things as:
· | our high level of debt |
· | the limited market for our capital intensive services |
· | the impact of lowered federal reimbursement rates |
· | the impact of recent U.S. health care reform legislation |
· | competition and alternatives to our services |
· | technological advances and the risk of equipment obsolescence |
· | our significant investment in development stage company in the proton beam therapy business |
· | the small and illiquid market for our stock |
These lists are not all-inclusive because it is not possible to predict all factors. A discussion of some of these factors is included in this document under the headings “Risk Factors” and “Management’s Discussion and Analysis” “–Summary of Critical Accounting Policies and Estimates” and “–Liquidity and Capital Resources.” This report should be read in its entirety. No one section of this report deals with all aspects of the subject matter. Any forward-looking statement speaks only as of the date such statement was made, and we are not obligated to update any forward-looking statement to reflect events or circumstances after the date on which such statement was made, except as required by applicable laws or regulations.
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GENERAL
American Shared Hospital Services (“ASHS” and, together with its subsidiaries, the “Company”) provides Gamma Knife stereotactic radiosurgery equipment and radiation therapy and related equipment to seventeen (17) medical centers in sixteen (16) states in the United States as of March 1, 2016. The Company provides Gamma Knife services through its 81% indirect interest in GK Financing, LLC, a California limited liability company (“GKF”). The remaining 19% of GKF is owned by GKV Investments, Inc., a wholly-owned U.S. subsidiary of Elekta AG, a Swedish company (“Elekta”). Elekta is the manufacturer of the Leksell Gamma Knife â (the “Gamma Knife”). GKF is a non-exclusive provider of alternative financing services for Elekta Gamma Knife units.
The Company wholly-owns the subsidiaries MedLeader.com, Inc. (“MedLeader”) and American Shared Radiosurgery Services (“ASRS”). ASRS is the majority-owner of GKF.
GKF has established the wholly-owned subsidiaries, GK Financing U.K., Limited (“GKUK”), Instituto de Gamma Knife del Pacifico S.A.C. (“GKPeru”), and the 70% majority owned subsidiary EWRS, LLC (“EWRS”) for the purpose of providing similar Gamma Knife services in England, Peru, and Turkey respectively. The remaining 30% of EWRS is owned by EMKA, LLC, a wholly, owned limited liability company owned by Mert Ozyurek, a Director of American Shared Hospital Services. EWRS owned 100% of EWRS Tibbi Cihazlar Ticaret Ltd Sti (“EWRS Turkey”). EWRS sold EWRS Turkey on June 10, 2014. GKUK is inactive.
GKF also owns a 51% interest in Albuquerque GK Equipment, LLC (“AGKE”) and Jacksonville GK Equipment, LLC (“JGKE”). The remaining 49% in each of these two companies is owned by radiation oncologists.
The Company continues to develop its design and business model for “The Operating Room for the 21 st Century” SM (“OR21” SM ), through its 50% owned OR21, LLC. The remaining 50% is owned by an architectural design company. OR21 is not expected to generate significant revenue within the next two years.
The Company is also the sole owner of PBRT Orlando, LLC (“Orlando”) and the majority owner of Long Beach Equipment, LLC (“LBE”) formed to provide proton beam therapy services in Long Beach, California and Orlando, FL. A minority ownership in LBE is owned by radiation oncologists.
In April 2006, the Company invested $2,000,000 for a minority equity interest in Mevion Medical Systems, Inc. (formerly Still River Systems, Inc.) (“Mevion”), a Littleton, Massachusetts company which, in collaboration with scientists from MIT’s Plasma Science and Fusion Center, was developing a medical device for the treatment of cancer patients using proton beam radiation therapy (“PBRT”). In September 2007, December 2011, and June 2012, the Company invested approximately $617,000, $70,000 and $31,000, respectively, for additional equity interests in Mevion. The Company has deposited an additional $5,000,000 towards the purchase of three MEVION S250 PBRT systems (“MEVION S250”) from Mevion. As of December 31, 2015, the Company recorded an impairment loss of $2,140,000 on its common stock investment in Mevion. See Item 1A Risk Factors and Item 7 Management’s Discussion and Analysis of Financial Condition and Results of Operations for more information. The first MEVION S250, located at Barnes-Jewish Hospital in St. Louis, MO (“Barnes-Jewish Hospital”), treated its first patient on December 19, 2013. The Company’s first MEVION S250 system was delivered to UF Health Cancer Center at Orlando Health in November 2014 and anticipates patient treatment to begin in second quarter 2016.
The Company was incorporated in the State of California in 1983 and its predecessor, Ernest A. Bates, M.D., Ltd. (d/b/a American Shared Hospital Services), a California limited partnership, was formed in June 1980.
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OPERATIONS
Gamma Knife Operations
Gamma Knife stereotactic radiosurgery, a non-invasive procedure, is an alternative to conventional brain surgery or can be an adjunct to conventional brain surgery, radiation therapy, or chemotherapy. Compared to conventional surgery, Gamma Knife radiosurgery usually is an out-patient procedure with lower risk of complications and can be provided at a lower cost. Typically, Gamma Knife patients resume their pre-surgical activities one or two days after treatment. The Gamma Knife treats patients with 201 single doses of gamma rays that are focused with great precision on small and medium sized, well circumscribed and critically located structures in the brain. During 2006, Elekta introduced a new Gamma Knife model, the Perfexion™ unit (“Perfexion”), which treats patients with 192 single doses of gamma rays. The Gamma Knife delivers a concentrated dose of gamma rays from Cobalt-60 sources housed in the Gamma Knife. The Cobalt-60 sources converge at the target area and deliver a dose that is high enough to destroy the diseased tissue without damaging surrounding healthy tissue.
The Gamma Knife treats selected malignant and benign brain tumors, arteriovenous malformations, and functional disorders including trigeminal neuralgia (facial pain). Research is being conducted to determine whether the Gamma Knife can be effective in the treatment of epilepsy, tremors, and other functional disorders.
As of December 31, 2015, there were approximately 130 Gamma Knife sites in the United States and more than 318 units in operation worldwide. Based on the most recent available data, an estimated percentage breakdown of Gamma Knife procedures performed in the U.S. by indications treated is as follows: malignant (49%) and benign (28%) brain tumors, vascular disorders (7%), and functional disorders (16%).
The Company, as of March 1, 2016, had seventeen (17) operating Gamma Knife units located in the United States. The Company’s first Gamma Knife commenced operation in September 1991. The Company’s Gamma Knife units performed approximately 1,947 procedures in 2015 for a cumulative total of approximately 35,000 procedures from commencement through December 31, 2015.
Revenue from Gamma Knife services for the Company during each of the last five (5) years ended December 31, and the percentage of total revenue of the Company represented by the Gamma Knife for each of the last five years, are set forth below:
Year Ended
December 31, |
Total Gamma Knife
Revenue (in thousands) |
Gamma Knife % of
Total Revenue |
||||||||
2015 | $ | 16,077 | 97.2 | % | ||||||
2014 | $ | 14,521 | 94.2 | % | ||||||
2013 | $ | 16,127 | 91.7 | % | ||||||
2012 | $ | 15,154 | 88.9 | % | ||||||
2011 | $ | 21,077 | (1) | 94.9 | % |
(1) | includes $4,984,000 of equipment sales revenue from the sale of a Gamma Knife system to an existing Gamma Knife customer at the end of the contract term. |
The Company conducts its Gamma Knife business through its 81% indirect interest in GKF. The remaining 19% interest is indirectly owned by Elekta. GKF, formed in October 1995, is managed by its policy committee. The policy committee is composed of one representative from the Company, Ernest A. Bates, M.D., ASHS’s Chairman and CEO, and one representative from Elekta. The policy committee sets the operating policy for GKF. The policy committee may act only with the unanimous approval of both of its members. The policy committee selects a manager to handle GKF’s daily operations. Craig K. Tagawa, Chief Executive Officer of GKF and Chief Operating and Financial Officer of ASHS, serves as GKF’s manager.
GKF’s profits and/or losses and any cash distributions are allocated based on membership interests. GKF’s operating agreement requires that it have a cash reserve of at least $50,000 before cash distributions are made to its members. From inception to December 31, 2015, GKF has distributed $43,659,000 to the Company and $10,241,000 to the non-controlling member.
Image Guided Radiation Therapy Operations (“IGRT”)
The Company’s radiation therapy business currently consists of one IGRT system that began operation in September 2007 at an existing Gamma Knife customer site. A second IGRT system located in Turkey was sold in the second quarter of 2014. Revenue generated under IGRT services accounted for approximately 3% of the Company’s total revenue in 2015.
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IGRT technology integrates imaging and detection components into a state-of-the-art linear accelerator, allowing clinicians to plan treatment, verify positioning, and deliver treatment with a single device, providing faster, more effective radiation therapy with less damage to healthy tissue. IGRT captures cone beam imaging, fluoroscopic and/or x-ray images on a daily basis, creating three-dimensional images that pinpoint the exact size, location and coordinates of tumors. Once tumors are pinpointed, the system delivers ultra-precise doses of radiation which ultimately leads to improved patient outcomes.
Based on the most recently available information, there are approximately 4,000 linear accelerator based radiation therapy units installed in the United States, and it is estimated that a majority of these units provide Intensity-Modulated Radiation Therapy (“IMRT”), IGRT or a combination of this advanced radiation therapy capability. Radiation therapy services are provided through approximately 2,300 hospital based and free-standing oncology centers.
Additional information on our operations can be found in Item 6–“Selected Financial Data”, Item 7–“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Note 1 of our consolidated financial statements.
CUSTOMERS
The Company’s current business is the outsourcing of stereotactic radiosurgery services and radiation therapy services. The Company typically provides the equipment, as well as planning, installation, reimbursement and marketing support services. The majority of the Company’s customers pay the Company on a fee per use basis. The market for these services primarily consists of major urban medical centers. The business is capital intensive; the total cost of a Gamma Knife or IGRT facility usually ranges from $3.0 million to $5.5 million, including equipment, site construction and installation. The Company pays for the equipment and the medical center generally pays for site and installation costs. The following is a listing of the Company’s sites as of March 1, 2016:
Customers (Gamma Knife except as noted) |
Original Term of
Contract |
Year Contract
Began |
Basis of Payment | |||
Southwest Texas Methodist Hospital | 10 years | 1998 | Fee per use | |||
San Antonio, Texas | ||||||
Yale New Haven Hospital | 10 years | 1998 | Fee per use | |||
New Haven, Connecticut | ||||||
Kettering Medical Center | 10 years | 1999 | Revenue sharing | |||
Kettering, Ohio | ||||||
Tufts Medical Center | 10 years | 1999 | Fee per use | |||
Boston, Massachusetts | ||||||
University of Arkansas for Medical Sciences | 15 years | 1999 | Revenue sharing | |||
Little Rock, Arkansas | ||||||
JFK Medical Center | 10 years | 2000 | Fee per use | |||
Edison, New Jersey | ||||||
Sunrise Hospital and Medical Center | 10 years | 2001 | Fee per use | |||
Las Vegas, Nevada | ||||||
Central Mississippi Medical Center | 10 years | 2001 | Fee per use | |||
Jackson, Mississippi | ||||||
OSF Saint Francis Medical Center | 10 years | 2001 | Fee per use | |||
Peoria, Illinois | ||||||
Albuquerque Regional Medical Center | 10 years | 2003 | Fee per use | |||
Albuquerque, New Mexico | ||||||
Northern Westchester Hospital | 10 years | 2005 | Fee per use | |||
Mt. Kisco, New York | ||||||
Mercy Health Center | 10 years | 2005 | Revenue Sharing | |||
Oklahoma City, Oklahoma | ||||||
Tufts Medical Center (IGRT) | 10 years | 2007 | Revenue Sharing | |||
Boston, Massachusetts | ||||||
USC University Hospital | 10 years | 2008 | Fee per use | |||
Los Angeles, California | ||||||
Ft. Sanders Regional Medical Center | 10 years | 2011 | Revenue Sharing | |||
Knoxville, Tennessee | ||||||
St. Vincent’s Medical Center | 10 years | 2011 | Revenue Sharing | |||
Jacksonville, Florida | ||||||
Sacred Heart Medical Center | 10 years | 2013 | Revenue Sharing | |||
Pensacola, Florida | ||||||
PeaceHealth Sacred Heart Medical Center at RiverBend | 10 years | 2014 | Revenue Sharing | |||
Eugene, Oregon |
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The Company’s typical fee per use agreement is for a ten year term. The fixed fee per use reimbursement amount that the Company receives from the customer is based on the Company’s cost to provide the service and the anticipated volume of the customer. The Gamma Knife contracts signed by the Company typically call for a fee ranging from $6,000 to $9,300 per procedure. There are no minimum volume guarantees required of the customer. In most cases, GKF is responsible for providing the Gamma Knife and related ongoing Gamma Knife equipment expenses (i.e., personal property taxes, insurance, and equipment maintenance) and also helps fund the customer’s Gamma Knife marketing. The customer generally is obligated to pay site and installation costs and the costs of operating the Gamma Knife. The customer can either renew the agreement or terminate the agreement at the end of the contractual term. If the customer chooses to terminate the agreement, then GKF removes the equipment from the medical center for possible placement at another site.
The Company’s typical revenue sharing agreements (“retail”) are for a period of ten years. Instead of receiving a fixed fee, the Company receives all or a percentage of the reimbursement (exclusive of physician fees) received by the customer. The Company is at risk for any reimbursement rate changes for radiosurgery or radiation therapy services by the government or other third party payors. There are no minimum volume guarantees required of the customer.
In 2015, one customer accounted for approximately 10% of the Company’s total revenue. In 2014, no one customer accounted for more than 10% of the Company’s total revenue. In 2013, two customers accounted for approximately 10%, each, of the Company’s total revenue. At December 31, 2015 and 2014, three customers each accounted for more than 10% of total accounts receivable.
MARKETING
The Company markets its services through its preferred provider status with Elekta and a direct sales effort led by its Vice President of Sales and Business Development and its Chief Operating Officer. The major advantages to a health care provider in contracting with the Company for Gamma Knife services include:
§ | The medical center avoids the high cost of owning the equipment. By not acquiring the Gamma Knife unit or other medical equipment, the medical center is able to allocate the funds otherwise required to purchase and/or finance the Gamma Knife to other projects. |
§ | The Company does not have minimum volume requirements, so the medical center avoids the risk of equipment under-utilization. The medical center pays the Company only for each procedure performed on a patient. |
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§ | For contracts under revenue sharing arrangements, the Company assumes all or a portion of the risk of reimbursement rate changes. The medical center pays the Company only the contracted portion of revenue received from each procedure. |
§ | The medical center transfers the risk of technological obsolescence to the Company. The medical center and its physicians are not under any obligation to utilize technologically obsolete equipment. |
§ | The Company provides planning, installation, operating and marketing assistance and support to its customers. |
FINANCING
The Company’s Gamma Knife business is operated through GKF. GKF generally finances its U.S. Gamma Knife units, upgrades and additions with loans or capital leases from various finance companies for typically 100% of the cost of each Gamma Knife, plus any sales tax, customs and duties. The financing is predominantly fully amortized over an 84 month period and is collateralized by the equipment, customer contracts and accounts receivable, and is generally without recourse to the Company and Elekta. In addition, the loan to finance the Company’s unit in Peru is guaranteed by GKF and collateralized by the Company’s stock in the subsidiary, IGKP.
COMPETITION
Conventional neurosurgery, radiation therapy and other radiosurgery devices are the primary competitors of Gamma Knife radiosurgery. Gamma Knife radiosurgery has gained acceptance as an alternative and/or adjunct to conventional surgery due to its more favorable morbidity outcomes for certain procedures as well as its non-invasiveness. Utilization of the Company’s Gamma Knife units is contingent on the acceptance of Gamma Knife radiosurgery by the customer’s neurosurgeons, radiation oncologists and referring physicians. In addition, the utilization of the Company’s Gamma Knife units is impacted by the proximity of competing Gamma Knife centers and providers using other radiosurgery devices.
The Company’s ability to secure additional customers for Gamma Knife services and other radiosurgery and radiation therapy services is dependent on its ability to effectively compete against (i) Elekta, the manufacturer of the Gamma Knife, (ii) manufacturers of other radiosurgery and radiation therapy devices, and (iii) other companies that outsource these services. The Company does not have an exclusive relationship with Elekta or other manufacturers and has previously lost sales to customers that chose to purchase equipment directly from manufacturers. The Company may continue to lose future sales to such customers and may also lose sales to the Company’s competitors.
GOVERNMENT PROGRAMS
The Medicare program is administered by the Centers for Medicare and Medicaid Services (“CMS”) of the U.S. Department of Health and Human Services (“DHHS”). Medicare is a health insurance program primarily for individuals 65 years of age and older, certain younger people with disabilities, and people with end-stage renal disease, and is provided without regard to income or assets.
The Medicare program is subject to statutory and regulatory changes, administrative rulings, interpretations and determinations, requirements for utilization review, and federal and state funding restrictions, all of which could materially increase or decrease payments from these government programs in the future, as well as affect the cost of providing services to patients and the timing of payments to our client hospitals.
The Company’s Gamma Knife and radiation therapy customers receive payments for patient care from federal government and private insurer reimbursement programs. Currently in the United States, Gamma Knife services are performed primarily on an out-patient basis. Gamma Knife patients with Medicare as their primary insurer, treated on either an in-patient or out-patient basis, comprise an estimated 35-45% of the total Gamma Knife patients treated nationwide. Radiation therapy patients with Medicare as their primary insurer are treated primarily on an out-patient basis, and comprise an estimated 45% to 50% of the total radiation therapy patients treated. The Company estimates that its percentage of patients with Medicare as their primary insurer approximates these national averages.
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Congress enacted legislation in 2013 that significantly reduced the Medicare reimbursement rate for outpatient Gamma Knife treatment by setting it at the same amount paid for linear accelerator-based radio surgery treatment. Prior to April 1, 2013, Medicare’s reimbursement rate for Gamma Knife treatment had been relatively stable. Congress’s enactment of the American Taxpayer Relief Act of 2012, however, reduced Medicare’s Gamma Knife reimbursement rate from approximately $9,900 to $5,300, effective April 1, 2013. This change caused a substantial reduction in the Company’s revenues during 2013 and 2014. Effective January 1, 2015, the Centers for Medicare and Medicaid (CMS) established a Comprehensive Ambulatory Payment Classification for single session radiosurgery treatments, which increased the reimbursement rate by approximately $4,100 to $9,700. CMS has established a 2016 total reimbursement rate of approximately $8,800 for a Medicare Gamma Knife treatment. The Company’s IGRT services are reimbursed by CMS and other insurers. Reimbursement for these services has remained fairly stable. See additional discussion under Item 1A Risk Factors.
The hospital based Medicare delivery code reimbursement rate for PBRT established by CMS is $506 for simple without compensation and $1,051 for either simple with compensation, intermediate or complex treatments. Patients typically undergo 25-30 delivery sessions.
We are unable to predict the effect of future government health care funding policy changes on operations. If the rates paid by governmental payers are reduced, if the scope of services covered by governmental payers is limited, or if one or more of our hospital clients are excluded from participation in the Medicare program or any other government health care program, there could be a material adverse effect on our business.
Affordable Care Act
In March 2010, President Obama signed into law the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, (“Affordable Care Act”), which has resulted in significant changes to the health care industry. The primary goal of the legislation was to extend health care coverage to approximately 32 million uninsured legal U.S. residents through both an expansion of public programs and reforms to private sector health insurance. The expansion of insurance coverage is expected to be funded in part by measures designed to promote quality and cost efficiency in health care delivery and by budgetary savings in the Medicare and Medicaid programs. Because the Company is not a health care provider, we are not directly affected by the law, but we could be indirectly affected principally as follows:
· | An increase in the number of insured residents could potentially increase the number of patients seeking Gamma Knife or radiation therapy treatment. | |
· | The Company’s retail contracts are subject to reimbursement rate changes for radiosurgery or radiation therapy services by the government or other third party payors. Any changes to Medicare or Medicaid reimbursement through the implementation of the Affordable Care Act could affect revenue generated from these sites. |
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GOVERNMENT REGULATION
The payment of remuneration to induce the referral of health care business has been a subject of increasing governmental and regulatory focus in recent years. Section 1128B(b) of the Social Security Act (sometimes referred to as the "federal anti-kickback statute") provides criminal penalties for individuals or entities that offer, pay, solicit or receive remuneration in order to induce referrals for items or services for which payment may be made under the Medicare and Medicaid programs and certain other government funded programs. The Affordable Care Act amended the anti-kickback statute to eliminate the requirement of actual knowledge, or specific intent to commit a violation, of the anti-kickback statute. The Social Security Act provides authorizes the Office of Inspector General through civil proceedings to exclude an individual or entity from participation in the Medicare and state health programs if it is determined any such party has violated Section 1128B(b) of the Social Security Act. The Company believes that it is in compliance with the federal anti-kickback statute. Additionally, the Omnibus Budget Reconciliation Act of 1993, often referred to as "Stark II", bans physician self-referrals to providers of designated health services with which the physician has a financial relationship. On September 5, 2007, the third and final phase of the Stark regulations (Phase III) was published. The term "designated health services" includes, among others, radiation therapy services and in-patient and out-patient hospital services. On January 1, 1995, the Physician Ownership and Referral Act of 1993 became effective in California. This legislation prohibits physician self-referrals for covered goods and services, including radiation oncology, if the physician (or the physician's immediate family) concurrently has a financial interest in the entity receiving the referral. The Company believes that it is in compliance with these rules and regulations.
On August 19, 2008, the CMS published a final rule relating to inpatient hospital services paid under the Inpatient Prospective Payment System for discharges in the Fiscal Year 2009 (the “Final Rule”). Among other things, the Final Rule prohibits “per-click payments” to certain physician lessors for services rendered to patients who were referred by the physician lessor. This prohibition on per-click payments for leased equipment used in the treatment of a patient referred to a hospital lessee by a physician lessor applies regardless of whether the physician himself or herself is the lessor or whether the lessor is an entity in which the referring physician has an ownership or investment interest. The effective date of this prohibition was October 1, 2009. However, referrals made by a radiation oncologist for radiation therapy or ancillary services necessary for, and integral to, the provision of radiation therapy (such as Gamma Knife services) are not subject to this prohibition so long as certain conditions are met. GK Financing’s majority owned subsidiaries, Albuquerque GK Equipment, LLC (“AGKE”) and Jacksonville GK Equipment, LLC (“JGKE”) have minority ownership interests that are held solely by radiation oncologists, who are otherwise exempt from the referral prohibition under the Final Rule. The Company believes it is in compliance with the Final Rule.
A range of federal civil and criminal laws target false claims and fraudulent billing activities. One of the most significant is the Federal False Claims Act, which prohibits the submission of a false claim or the making of a false record or statement in order to secure a reimbursement from a government-sponsored program. In recent years, the federal government has launched several initiatives aimed at uncovering practices which violate false claims or fraudulent billing laws. Claims under these laws may be brought either by the government or by private individuals on behalf of the government, through a "whistleblower" or "qui tam" action. The Company believes that it is in compliance with the Federal False Claims Act; however, because such actions are filed under seal and may remain secret for years, there can be no assurance that the Company or one of its affiliates is not named in a material qui tam action.
Legislation in various jurisdictions requires that health facilities obtain a Certificate of Need ("CON") prior to making expenditures for medical technology in excess of specified amounts. Four of the Company’s existing customers were required to obtain a CON or its equivalent. The CON procedure can be expensive and time consuming and may impact the length of time before Gamma Knife services commence. CON requirements vary from state to state in their application to the operations of both the Company and its customers. In some jurisdictions the Company is required to comply with CON procedures to provide its services and in other jurisdictions customers must comply with CON procedures before using the Company's services. The Company is unable to predict if any jurisdiction will eliminate or alter its CON requirements in a manner that will increase competition and, thereby, affect the Company's competitive position.
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The Company's Gamma Knife units contain Cobalt 60 radioactive sources. The medical centers that house the Company's Gamma Knife units are responsible for obtaining possession and user's licenses for the Cobalt 60 source from the Nuclear Regulatory Commission.
Standard linear accelerator equipment utilized to treat patients is regulated by the FDA. The licensing is obtained by the individual medical center operating the equipment.
The Company believes it is in substantial compliance with the various rules and regulations that affect its businesses.
INSURANCE AND INDEMNIFICATION
The Company's contracts with equipment vendors generally do not contain indemnification provisions. The Company maintains a comprehensive insurance program covering the value of its property and equipment, subject to deductibles, which the Company believes are reasonable.
The Company's customer contracts generally contain mutual indemnification provisions. The Company maintains general and professional liability insurance. The Company is not involved in the practice of medicine and therefore believes its present insurance coverage and indemnification agreements are adequate for its business.
PROTON BEAM RADIATION THERAPY BUSINESS
PBRT is an alternative to traditional external beam, photon based radiation delivered by linear accelerators. PBRT, first clinically introduced in the 1950s, has physics advantages compared to photon based systems which allow PBRT to deliver higher radiation doses to the tumor with less radiation to healthy tissue. PBRT currently treats prostate, eye, cranial-spinal, head and neck, lung, liver and breast tumors. In excess of 130,000 patients have been treated with protons worldwide.
Introduction of PBRT in the United States, until recently, has been limited due to the high capital costs of these projects. The Company believes that the current development of one and two treatment room PBRT systems at lower capital costs and the level of reimbursement for PBRT from the CMS will help make this technology available to a larger segment of the market.
There are several competing manufacturers of proton beam systems, including Mevion, IBA Particle Therapy Inc., Hitachi Ltd., Varian Medical Systems, Inc. (Accel), Optivus Proton Therapy Inc., Sumitomo Heavy Industries, ProTom International, Inc. and Mitsubishi Electric. The Company has invested in Mevion and has made deposits towards the purchase of three MEVION S250 systems. The Mevion system potentially provides cancer centers the opportunity to introduce single treatment room PBRT services with cost in the range of approximately $25 to $35 million rather than four and five PBRT treatment room programs costing in excess of $120 million. The MEVION S250 system received FDA approval in the second quarter of 2012 and the first clinical treatment occurred in December 2013 at Barnes-Jewish Hospital. The Company’s first MEVION S250 synchrocyclotron (a major component of the MEVION S250 system) was delivered to UF Health Cancer Center at Orlando Health in late 2014. During 2015, the synchrocyclotron was installed and tested and is expected to treat its first patient in second quarter 2016. In January 2016, the Company received financing for its remaining commitment related to the first Mevion S250 system. The Company’s second and third PBRT units will not begin construction until the Company identifies satisfactory placement sites.
The Company believes the business model it has developed for use in its Gamma Knife and radiation therapy businesses can be tailored for the PBRT market segment. The Company is targeting large, hospital based cancer programs. The Company’s ability to develop a successful PBRT financing entity depends on the decision of cancer centers to self-fund or to fund the PBRT through conventional financing vehicles, the Company’s ability to capture market share from competing alternative PBRT financing entities, and the Company’s ability to raise capital to fund PBRT projects.
EMPLOYEES
At December 31, 2015, the Company employed eight (8) people on a full-time basis and one (1) on a part-time basis. None of these employees is subject to a collective bargaining agreement and there is no union representation within the Company. The Company maintains various employee benefit plans and believes that its employee relations are good.
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EXECUTIVE OFFICERS OF THE COMPANY
The following table provides current information concerning those persons who serve as executive officers of the Company. The executive officers were appointed by the Board of Directors and serve at the discretion of the Board of Directors.
Name: | Age: |
Position: |
||
Ernest A. Bates, M.D. | 79 | Chairman of the Board of Directors and Chief Executive Officer | ||
Craig K. Tagawa | 62 | Senior Vice President - Chief Operating and Financial Officer | ||
Ernest R. Bates | 49 | Vice President of Sales and Business Development |
Ernest A. Bates, M.D., founder of the Company, has served in the positions listed above since the incorporation of the Company. A board-certified neurosurgeon, Dr. Bates is Emeritus Vice Chairman of the Board of Trustees at Johns Hopkins University and serves on the Johns Hopkins Neurosurgery Advisory Board. He also serves on the boards of Shared Imaging and FasterCures. Dr. Bates previously served on the California Commission for Jobs and Economic Growth and the Magistrate Judge Merit Selection Panel. From 1981-1987 he was a member of the Board of Governors of the California Community Colleges, and he served on the California High Speed Rail Authority from 1997 to 2003. Dr. Bates is a member of the Board of Overseers at the University of California, San Francisco, School of Nursing. He is a graduate of the School of Arts and Sciences of the Johns Hopkins University, and he earned his medical degree at the University of Rochester School of Medicine and Dentistry.
Craig K. Tagawa has served as Chief Operating Officer since February 1999 in addition to serving as Chief Financial Officer since May 1996. Mr. Tagawa also served as Chief Financial Officer from January 1992 through October 1995. Previously a Vice President in such capacity, Mr. Tagawa became a Senior Vice President on February 28, 1993. He is also the Chief Executive Officer of GKF. From September 1988 through January 1992, Mr. Tagawa served in various positions with the Company. He is a former Chair of the Industrial Policy Advisory Committee of the Engineering Research Center for Computer-Integrated Surgical Systems and Technology at The Johns Hopkins University. He received his undergraduate degree from the University of California at Berkeley and his M.B.A. from Cornell University.
Ernest R. Bates joined the Company in January 2007 as Vice President of Sales and Business Development. He was on the Board of Directors of the Company from 2004 through February 2007. Prior to joining the Company, he had been Managing Director, Institutional Fixed Income Sales of HSBC Securities (USA), Inc. since 2003. Mr. Bates has also served as Managing Director, Head of Asian Product for HSBC Securities (USA) Inc. from 1999 to 2003. From 1993 through 1999, Mr. Bates held various positions with Merrill Lynch, last serving as Vice President, European Syndicate for Merrill Lynch International. He received his undergraduate degree from Brown University and a M.B.A. degree from The Wharton Business School. Ernest R. Bates is the son of Chairman of the Board and Chief Executive Officer Dr. Ernest A. Bates.
AVAILABLE INFORMATION
Our Internet address is www.ashs.com . We make available free of charge, through our Internet website under the “Investor Center” tab in the “Corporate” section, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) as soon as reasonably practicable after such material is electronically filed with or furnished to the SEC. The information contained on our Internet website is not part of this document.
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In addition to the other information in this report, the following factors could affect our future business, results of operations, cash flows or financial position, and could cause future results to differ materially from those expressed in any of the forward-looking statements contained in this report.
The Federal Reimbursement Rate for Gamma Knife Treatments Has Fluctuated
Congress enacted legislation in 2013 that significantly reduced the Medicare reimbursement rate for outpatient Gamma Knife treatment by setting it at the same amount paid for linear accelerator-based radiosurgery treatment. Prior to April 1, 2013, Medicare’s reimbursement rate for Gamma Knife treatment had been relatively stable. In April 2013, the Medicare reimbursement rate for Gamma Knife treatment was lowered from approximately $9,900 to $5,300 per treatment session. This sudden reduction in a rate that had historically been stable resulted in a significant decrease in the Company’s revenues from all of our revenue sharing and some of our fixed fee medical centers. The reimbursement rate was subsequently increased to approximately $5,600 in 2014. Effective January 1, 2015, CMS established a comprehensive Ambulatory Payment Classification (APC) for both Gamma Knife and LINAC one session cranial radiosurgery at a reimbursement rate of approximately $9,700. This represents an estimated increase of $4,100 per Medicare Gamma Knife treatment (exclusive of co-insurance and other adjustments) effective January 1, 2015 compared to the 2014 Medicare reimbursement rate. The 2016 reimbursement level was reduced by CMS to approximately $8,800. There can be no assurance that CMS reimbursement levels will be maintained at levels providing the Company an adequate return on its investment. Any future reductions in the reimbursement rate would adversely affect the Company’s revenues and financial results.
The average Medicare reimbursement rate trends from 2012 to 2016 are outlined below:
Average Medicare Reimbursement Rate Trends
2012 | 2013 | 2014 | 2015 | 2016 | ||||||||||||||
$ | 9,900 | $ | 5,300 | $ | 5,600 | $ | 9,700 | $ | 8,800 |
The Company’s Capital Investment at Each Site is Substantial
Each radiosurgical or radiation therapy device requires a substantial capital investment. In some cases, we contribute additional funds for capital costs and/or annual operating and equipment related costs such as marketing, maintenance, insurance and property taxes. Due to the structure of our contracts with medical centers, there can be no assurance that these costs will be fully recovered or that we will earn a satisfactory return on our investment.
The Market for the Gamma Knife is Limited
There is a limited market for the Gamma Knife, and the market in the United States may be mature. The Company has begun operation at only four (4) new Gamma Knife sites in the United States since 2011. Due to the substantial costs of acquiring a Gamma Knife unit, we must identify medical centers that possess neurosurgery and radiation oncology departments capable of performing a large number of Gamma Knife procedures. As of December 31, 2015, there were approximately 130 operating Gamma Knife units in the United States, of which 17 units were owned by the Company. The Company has two idle Gamma Knife units with a cumulative net book value of $1,500,000. The Company plans to trade these units in for new units or place these units at new sites. There can be no assurance that we will be successful in placing these idle units or additional units at any sites in the future. The Company’s existing contracts with its customers are fixed in length and there can be no assurance that the customers will wish to extend the contract beyond the end of the term.
The Company Has a High Level of Debt
The Company’s business is capital intensive. The Company finances its Gamma Knife units through its GKF subsidiary. The amounts financed through GKF have been generally non-recourse to ASHS. The Company’s combined long term debt and capital leases totaled $23,118,000 as of December 31, 2015 and is collateralized by the Gamma Knife and other assets, including accounts receivable and future proceeds from any contract between the Company and any end user of the financed equipment. This high level of debt may adversely affect the Company’s ability to secure additional credit in the future, and as a result may affect operations and profitability. If default on debt occurs in the future, the Company’s creditors would have the ability to accelerate the defaulted loan, to seize the Gamma Knife unit or other equipment with respect to which default has occurred, and to apply any collateral they may have at the time to cure the default.
A Small Number of Customers Account for a Major Portion of our Revenues
A limited number of customers have historically accounted for a substantial portion of the Company’s total revenue, and the Company expects such customer concentration to continue for the foreseeable future. For example, in 2015, six (6) customers in total accounted for more than 50% of the Company’s revenue. The loss of a significant customer or a significant decline in the business from the Company’s largest customers could have a material adverse effect on the Company’s business and results of operations.
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The Market for the Company’s Services is Competitive
The Company estimates that there are two other companies that actively provide alternative, non-conventional Gamma Knife financing to potential customers. We believe there are no competitor companies that currently have more than three (3) Gamma Knife units in operation. The Company’s relationship with Elekta, the manufacturer of the Leksell Gamma Knife unit, is non-exclusive, and in the past the Company has lost sales to customers that chose to purchase a Gamma Knife unit directly from Elekta. In addition, the Company may continue to lose future sales to such customers and may also lose future sales to its competitors. There can be no assurance that the Company will be able to successfully compete against others in placing future units.
There are Alternatives to the Gamma Knife
Other radiosurgery devices and conventional neurosurgery compete against the Gamma Knife. Each of the medical centers targeted by the Company could decide to acquire another radiosurgery device instead of a Gamma Knife. In addition, neurosurgeons who are primarily responsible for referring patients for Gamma Knife surgery may not be willing to make such referrals for various reasons, instead opting for invasive surgery. There can be no assurance that the Company will be able to secure a sufficient number of future sites or Gamma Knife procedures to sustain its profitability and growth.
International Operations
The Company has plans to install, in 2016, a Gamma Knife in Peru. The Company sold its operations in Turkey on June 10, 2014. International operations can be subject to exchange rate volatility which could have an adverse effect on our financial results and cash flows. In addition, international operations can be subject to legal and regulatory uncertainty and political and economic instability, which could result in problems asserting property or contractual rights, potential tariffs, increased compliance costs, increased regulatory scrutiny, potential adverse tax consequences, the inability to repatriate funds to the United States, and the Company’s inability to operate in those locations.
New Technology and Products Could Result in Equipment Obsolescence
There is constant change and innovation in the market for highly sophisticated medical equipment. New and improved medical equipment can be introduced that could make the Gamma Knife technology obsolete and that would make it uneconomical to operate. During 2000, Elekta introduced an upgraded Gamma Knife which cost approximately $3.6 million plus applicable tax and duties. This upgrade includes an Automatic Positioning System™ (“APS”), and therefore involved less health care provider intervention. In early 2005, Elekta introduced a new upgrade, the Gamma Knife Model 4C (“Model 4C”). The cost to upgrade existing units to the Model 4C with APS was approximately $200,000 to $1,000,000, depending on the current Gamma Knife configuration. In 2006 Elekta introduced a new model of the Gamma Knife, the Perfexion, which costs approximately $4.5 million plus applicable taxes and duties. The Perfexion can perform procedures faster than previous Gamma Knife models and it involves less health care personnel intervention. In 2015, Elekta introduced the Leksell Gamma Knife Icon TM . The Perfexion is upgradeable to the Icon platforms which has enhanced imaging capabilities allowing for treatment of larger tumors. Existing models of the Gamma Knife are not upgradeable to the Perfexion model. As of March 1, 2016, 14 of the Company’s Gamma Knife units are Perfexion models; of the Company’s remaining Gamma Knife units, five (5) are Model 4C with APS and one is upgradeable to a more advanced Model 4C unit. The failure to acquire or use new technology and products could have a material adverse effect on our business and results of operations.
In addition, there are constant advances made in radiation therapy equipment. The Company purchased IGRT and CT Simulator systems in 2006 with a list price of approximately $8,300,000. As in the Gamma Knife business, new and improved IGRT equipment can be introduced that could make the existing technology obsolete and that would make it uneconomical to operate.
The Company Has Invested in a Proton Beam Business that is Developmental
We have committed a substantial amount of our financial resources to next-generation proton beam technology. The first MEVION S250 system began treating patients in December 2013. We have committed to purchase three (3) MEVION S250 systems, and have already made deposits of $5,000,000 towards this commitment. There can be no assurance that we will be able to finance these machines and if we do, that we will recover this investment or future investments, or our $2,709,000 common stock investment in Mevion, which was written down to approximately $579,000 as of December 31, 2015. As of January 2016, we have finalized financing for the Company’s first MEVION S250 that is starting at UF Health Cancer Center at Orlando Health in the second quarter 2016.
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The Trading Volume of Our Common Stock is Low
Although our common stock is listed on the NYSE MKT, our common stock has experienced low trading volume, both historically and recently. Reported average daily trading volume in our common stock for the three-month period ended December 31, 2015 was approximately 3,200 shares. There is no reason to think that a more active trading market in our common stock will develop in the future. Limited trading volume subjects our common stock to greater price volatility and may make it difficult for you to sell your shares in a quantity or at a price that is attractive to you.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
The Company's corporate offices are located at Four Embarcadero Center, Suite 3700, San Francisco, California, where it leases approximately 4,640 square feet for $25,128 per month with a lease expiration date in May 2016. The Company has subleased approximately 3,500 rentable square feet of the office space for $16,042 per month. The sublease expires in May 2016. The Company is in the process of procuring new corporate office space and there will be future rent expense associated with this space. The Company also has a satellite office in Fairfield, California, where it leases 895 square feet for $2,505 per month with a lease expiration date in April 2018.
For the year ended December 31, 2015 the Company's aggregate net rental expenses for all properties were approximately $295,000, net of sublease income of $191,000.
There are no material pending legal proceedings involving the Company or any of its property. The Company knows of no legal or administrative proceedings against the Company contemplated by governmental authorities.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information and Dividend Policy
The Company's common shares, no par value (the "Common Shares"), are currently traded on the New York Stock Exchange. At December 31, 2015, the Company had 5,364,000 issued and outstanding common shares, 614,000 common shares reserved for options, 3,000 unvested restricted stock units issued, 176,000 vested restricted stock units reserved for issuance and warrants to issue 200,000 shares of common stock.
The following table sets forth the high and low closing sale prices of the Common Shares of the Company on the New York Stock Exchange for each full quarter for the last two fiscal years.
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The Company estimates that there were approximately 1,400 beneficial holders of its Common Shares at December 31, 2015.
There were no dividends declared or paid during 2015, 2014, or 2013. Dividends had been paid by the Company from 2001 to 2007, but during 2007 the Board of Directors suspended dividends for the purpose of preserving cash for the development of its PBRT business. The Company did not pay cash dividends prior to 2001.
Stock Repurchase Program
In 1999 and 2001, the Board of Directors approved resolutions authorized the Company to repurchase up to a total of 1,000,000 shares of its common stock on the open market from time to time at prevailing prices, and in 2008 the Board of Directors reaffirmed these authorizations. In 2015, there were no shares repurchased by the Company. In 2014, there were approximately 1,000 shares repurchased at a cost of approximately $2,000. There were no shares repurchased in 2013. A total of approximately 928,000 shares have been repurchased in the open market pursuant to these authorizations at a cost of approximately $1,957,000. As of December 31, 2015, there were approximately 72,000 shares remaining under the repurchase authorizations.
Shareholder Rights Plan
On March 22, 1999, the Company adopted a Shareholder Rights Plan (“Plan”). Under the Plan, the Company made a dividend distribution of one Right for each outstanding share of the Company’s common stock as of the close of business on April 1, 1999. The Rights become exercisable only if any person or group, with certain exceptions, becomes an “acquiring person” (acquires 15% or more of the Company’s outstanding common stock) or announces a tender or exchange offer to acquire 15% or more of the Company’s outstanding common stock. The Company’s Board of Directors adopted the Plan to protect shareholders against a coercive or inadequate takeover offer. On March 12, 2009, the Board of Directors approved the First Amendment to the Plan which, among other things, extended the final date on which the Rights are exercisable until the close of business on April 1, 2019.
Equity Compensation Plans
During 2015, one holder of options to acquire 2,000 shares of the Company’s common stock exercised his respective rights pursuant to such securities; additionally, 3,000 restricted stock units, 28,000 restricted stock units for deferred compensation and 20,000 options were issued during 2015. Additional information regarding our equity compensation plans is incorporated herein by reference from the 2016 Proxy Statement. Also, see Note 9-“Shareholders’ Equity to the Consolidated Financial Statements”.
Recent Sales of Unregistered Securities
The Company sold 750,000 shares of common stock to members of the Board of Directors in two private placement transactions in 2014 that were exempt under Section 4(a)(2) of the Securities Act.
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ITEM 6. SELECTED FINANCIAL DAT A
Summary of Operations | Year Ended December 31, | |||||||||||||||||||
(Amounts in thousands except per share data) | ||||||||||||||||||||
2015 | 2014 | 2013 | 2012 | 2011 | ||||||||||||||||
Revenue | $ | 16,548 | $ | 15,417 | $ | 17,584 | $ | 17,048 | $ | 22,221 | ||||||||||
Costs of revenue | 9,833 | 10,138 | 10,640 | 10,118 | 14,224 | |||||||||||||||
Selling and administrative expense | 3,496 | 3,630 | 4,025 | 4,045 | 4,041 | |||||||||||||||
Interest expense | 1,239 | 1,699 | 1,799 | 2,155 | 2,367 | |||||||||||||||
Total expenses | 14,568 | 15,467 | 16,464 | 16,318 | 20,632 | |||||||||||||||
Income (loss) from operations | 1,980 | (50 | ) | 1,120 | 730 | 1,589 | ||||||||||||||
(Loss) on write down investment in equity securities | (2,140 | ) | 0 | 0 | 0 | 0 | ||||||||||||||
(Loss) on sale of subsidiary | 0 | (572 | ) | 0 | 0 | 0 | ||||||||||||||
Gain (loss) foreign currency transactions | 0 | 161 | (1,174 | ) | 132 | (27 | ) | |||||||||||||
Interest and other income | 18 | 28 | 25 | 58 | 135 | |||||||||||||||
(Loss) income before income taxes | (142 | ) | (433 | ) | (29 | ) | 920 | 1,697 | ||||||||||||
Income tax expense | 434 | 129 | 84 | 107 | 208 | |||||||||||||||
Net (loss) income | (576 | ) | (562 | ) | (113 | ) | 813 | 1,489 | ||||||||||||
Less net income attributable to non-controlling interest | (946 | ) | (390 | ) | (199 | ) | (775 | ) | (983 | ) | ||||||||||
Net (loss) income attributable to ASHS | $ | (1,522 | ) | $ | (952 | ) | $ | (312 | ) | $ | 38 | $ | 506 | |||||||
Net (loss) income per common share attributable to ASHS: | ||||||||||||||||||||
Basic | $ | (0.28 | ) | $ | (0.19 | ) | $ | (0.07 | ) | $ | 0.01 | $ | 0.11 | |||||||
Diluted | $ | (0.28 | ) | $ | (0.19 | ) | $ | (0.07 | ) | $ | 0.01 | $ | 0.11 |
See accompanying note (1)
Balance Sheet Data | As of December 31, | |||||||||||||||||||
(Amounts in thousands) | ||||||||||||||||||||
2015 | 2014 | 2013 | 2012 | 2011 | ||||||||||||||||
Cash and cash equivalents | $ | 2,209 | $ | 1,059 | $ | 1,909 | $ | 1,564 | $ | 2,580 | ||||||||||
Certificate of deposit and securities | - | 9,000 | 9,000 | 9,000 | 9,000 | |||||||||||||||
Restricted cash | 50 | 50 | 50 | 50 | 50 | |||||||||||||||
Working capital (deficit) | (2,691 | ) | (2,004 | ) | (4,079 | ) | (2,697 | ) | (1,329 | ) | ||||||||||
Total assets | 54,114 | 67,528 | 71,742 | 73,323 | 74,535 | |||||||||||||||
Advances on line of credit | 0 | 8,780 | 8,840 | 8,550 | 7,850 | |||||||||||||||
Current portion of long-term debt and capital leases | 7,005 | 6,108 | 8,771 | 7,674 | 7,616 | |||||||||||||||
Long-term debt/capital leases, less current portion | 16,113 | 20,776 | 23,690 | 27,010 | 28,135 | |||||||||||||||
Shareholders' equity | $ | 25,180 | $ | 26,154 | $ | 24,055 | $ | 24,830 | $ | 25,171 |
See accompanying note (1)
(1) In 1995, the Company entered into an operating agreement granting to American Shared Radiosurgery Services (a California corporation and a wholly-owned subsidiary of the Company) an 81% ownership interest in GKF. During 2010 and 2011, GKF established new operating subsidiaries, EWRS, EWRS Turkey, AGKE, and JGKE, and other subsidiaries that are not yet operational. On June 10, 2014, the Company sold EWRS Turkey. Accordingly, the financial data for the Company presented above include the results of GKF and its subsidiaries for the periods 2011 through 2015.
This financial data as of December 31, 2015, 2014 and 2013 and for the years ended December 31, 2015, 2014 and 2013 should be read in conjunction with our consolidated financial statements and the notes thereto beginning on page A-1 of this report and with Item 7–“Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
APPLICATION OF CRITICAL ACCOUNTING POLICIES
The Company’s consolidated financial statements are prepared in accordance with generally accepted accounting principles and follow general practices within the industry in which it operates. Application of these principles requires management to make estimates, assumptions and judgments that affect the amounts reported in the financial statements and accompanying notes. These estimates, assumptions and judgments are based on information available as of the date of the financial statements; accordingly, as this information changes, the financial statements could reflect different estimates, assumptions and judgments. Certain policies inherently have a greater reliance on the use of estimates, assumptions and judgments and as such have a greater possibility of producing results that could be materially different than originally reported.
The most significant accounting policies followed by the Company are presented in Note 2 to the consolidated financial statements. These policies along with the disclosures presented in the other financial statement notes and in this discussion and analysis, provide information on how significant assets and liabilities are valued in the financial statements and how those values are determined. Based on the valuation techniques used and the sensitivity of financial statement amounts, and the methods, assumptions and estimates underlying those amounts, management has identified revenue recognition and costs of sales for turn-key and revenue sharing arrangements, the determination of the allowance for doubtful accounts, and the carrying value of its Mevion investment to be the areas that required the most subjective or complex judgments, and as such could be most subject to revision as new information becomes available. The following are our critical accounting policies in which management’s estimates, assumptions and judgments most directly and materially affect the financial statements:
Revenue Recognition
The Company has one revenue-generating activity, which consists of equipment leasing to hospitals, and includes the operation of Gamma Knife units by GKF and the operation of one IGRT site by ASHS. During 2014, the Company entered into a lease agreement where the lessee gave the Company a piece of equipment for $1. The Company estimated and recorded the fair market value of the equipment received and recognized deferred revenue. As of December 31, 2014, the fair market value of the equipment received during the year was $700,000.
Revenue is recognized when services have been rendered and collectability is reasonably assured, on either a fee per use or revenue sharing basis. During 2015, the Company had eleven (11) fee per use arrangements and eight (8) retail service arrangements. Under both of these types of agreements, the hospital is responsible for billing patients and collecting technical component fees for services performed. Revenue associated with installation of the Gamma Knife and IGRT units, if any, is a part of the negotiated lease amount and not a distinctly identifiable amount. The costs, if any, associated with installation of the units are amortized over the period of the related lease to match revenue recognition of these costs.
For fee per use agreements, revenue is not estimated because these contracts provide for a fixed fee per procedure, and are typically for a ten year term. Revenue is recognized at the time the procedures are performed, based on each hospital’s contracted rate. There is no guaranteed minimum payment. Costs related to operating the units are charged to costs of operations as incurred, which approximates the recognition of the related revenue. Revenue under fee per use agreements is recorded in accordance with the contract terms.
During 2015, ASHS had one (1) agreement and GKF had seven (7) agreements that are based on revenue sharing. These can be further classified as either “turn-key” arrangements or “revenue sharing” arrangements. For GKF’s four (4) turn-key sites, GKF is solely responsible for the costs to acquire and install the Gamma Knife. In return, GKF receives payment from the hospital in the amount of its reimbursement from third party payors. Revenue is recognized by the Company during the period in which the procedure is performed, and is estimated based on what can be reasonably expected to be paid by the third party payor to the hospital. The estimate is primarily determined from historical experience and hospital contracts with third party payors. These estimates are reviewed on a regular basis and adjusted as necessary to more accurately reflect the expected payment amount. The Company also records an estimate of operating costs associated with each procedure during the period in which the procedure is performed. For two of the turn-key sites, the Company also shares a percentage of net operating profit. The Company records an estimate of net operating profit based on estimated revenues, less estimated operating costs. Costs are determined primarily based on historical treatment protocols and cost schedules with the hospital. The Company’s estimated operating costs are reviewed on a regular basis and adjusted as necessary to more accurately reflect the actual operating costs. Revenue for turn-key sites is recorded on a gross basis, and the operating expenses the Company reimburses to the hospital are recorded in other operating costs.
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Under revenue sharing arrangements the hospital shares in the responsibility and risk with the Company for the capital investment to acquire and install the equipment. Unlike our turn-key arrangement, the lease payment under a revenue sharing arrangement is a percentage of reimbursed revenue. Payments are made by the hospital, generally on a monthly basis, to the Company based on an agreed upon percentage allocation of cash collected. Revenue is recognized during the period in which procedures are performed, and is estimated based on the reimbursement amount that the Company expects to receive from the hospital for those procedures. This estimate is reviewed on a regular basis and adjusted as necessary to more accurately reflect the expected payment amount.
Revenue from retail arrangements amounted to approximately 47%, 42% and 44% of total revenue for the years ended December 31, 2015, 2014 and 2013, respectively. Because the revenue estimates are reviewed on a quarterly basis, any adjustments required for past revenue estimates would result in an increase or reduction in revenue during the current quarterly period.
Allowance for Doubtful Accounts
The allowance for doubtful accounts is estimated based on possible losses relating to the Company’s customers. The Company receives reimbursement from the customer based on the customer’s collections from individuals and third-party payors such as insurance companies and Medicare. Receivables are charged against the allowance in the period that they are deemed uncollectible.
Carrying Value of Mevion Investment
The Company has carried its investment in Mevion at cost and reviews it for impairment on a quarterly basis, or as events or circumstances might indicate that the carrying value of the investment may be below its cost basis on an, other-than-temporary impairment basis. The Company evaluated this investment for impairment at December 31, 2014. In light of available information, the Company determined impairment was not other-than temporary. The Company estimates that there was an unrealized loss (impairment) of approximately $2.4M, as of December 31, 2014.
Due to Mevion’s cancellation of its planned IPO on July 27, 2015 and its announcement on August 4, 2015 of an investment of up to $200M by new investors, the Company determined that its Mevion common stock investment was impaired on an other-than-temporary basis. The fair value of the Company’s investment in Mevion, as of December 31, 2015, is approximately $579,000 with an impairment loss for the year of $2,140,000. For additional information, see “Impairment Analysis of Investment in Equity Securities.”
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2015 Results
For the year ended December 31, 2015, 97% of the Company’s revenue was derived from its Gamma Knife business, and the remaining 3% from its IGRT business. For the year ended December 31, 2014, 94% of the Company’s revenue was derived from its Gamma Knife business, and the remaining 6% from its IGRT business. For the year ended December 31, 2013, 92% of the Company’s revenue was derived from its Gamma Knife business, and the remaining 8% from its IGRT business.
TOTAL REVENUE
(in thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Total revenue | $ | 16,548 | 7.3 | % | $ | 15,417 | (12.3 | )% | $ | 17,584 |
Total revenue in 2015 increased 7.3% compared to 2014, due to an increase in Gamma Knife revenue, offset by a decrease in IGRT revenue. Total revenue decreased 12.3% in 2014 compared to 2013 primarily due to the sale of EWRS Turkey which contributed $999,000 to the decline for 2014.
Gamma Knife Revenue
2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | ||||||||||||||||
Medical services revenue from Gamma Knife (in thousands) | $ | 16,077 | 10.7 | % | $ | 14,521 | (10.0 | )% | $ | 16,127 | ||||||||||
Number of Gamma Knife procedures | 1,947 | (4.8 | )% | 2,046 | (17.6 | )% | 2,482 | |||||||||||||
Average revenue per procedure | $ | 8,257 | 16.3 | % | $ | 7,097 | 9.2 | % | $ | 6,498 |
Total Gamma Knife revenue for 2015 increased 10.7% to $16,077,000 compared to $14,521,000 in 2014. Total Gamma Knife revenue for 2014 decreased 10.0% to $14,521,000 compared to $16,127,000 in 2013. The increase in revenue in 2015 compared to 2014 was due to an increase in volume and a favorable payor mix at the Company’s retail sites. Excluding procedures performed in Turkey in 2014, procedures increased 7% in 2015, compared to prior year. The decrease in revenue in 2014 compared to 2013 was due to the sale of EWRS Turkey which contributed $642,000 to the decline, and the decrease in number of Gamma Knife procedures at certain of its U.S. sites. The Company had seventeen, twenty, and nineteen Gamma Knife units in operation at December 31, 2015, 2014 and 2013.
The number of Gamma Knife procedures performed in 2015 increased 125, excluding procedures performed in Turkey in 2014. This increase was due to a new site which treated its first patient in December 2014, and increased volume at existing sites, offset by one contract which ended March 31, 2015. The number of Gamma Knife procedures performed in 2014 decreased by 436 compared to 2013, primarily due to the sale of EWRS Turkey which reported 343 more procedures in 2013. The remaining decline in procedures was due to personnel issues at existing Gamma Knife sites.
Revenue per procedure increased by $1,160 in 2015 and $599 in 2014 compared to 2014 and 2013, respectively. For 2015, the increase was due to a favorable payor mix, increased reimbursement for Medicare procedures, effective January 1, 2015, and the sale of EWRS Turkey units which were reimbursed at lower rates compared to the Company’s other units. For 2014, this increase was due to a favorable change in payor mix and the sale of the EWRS Turkey units which were reimbursed at lower rates compared to the Company’s other units.
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IGRT Revenue
(in thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Medical services revenue from IGRT | $ | 471 | (47.4 | )% | $ | 896 | (38.5 | )% | $ | 1,457 |
Medical services revenue from the Company’s IGRT contracts decreased $425,000 in 2015 compared to 2014. The sale of EWRS Turkey contributed $208,000 to the decline, in addition to lower volume at the Company’s existing site. Medical services revenue from the Company’s IGRT contracts decreased by $561,000 in 2014 compared to 2013. The sale of EWRS Turkey contributed $357,000 to the decline, in addition to lower volume at the Company’s existing site.
COSTS OF REVENUE
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Total costs of revenue | $ | 9,833 | (3.0 | )% | $ | 10,138 | (4.7 | )% | $ | 10,640 | ||||||||||
Percentage of total revenue | 59.4 | % | 65.8 | % | 60.5 | % |
The Company's costs of revenue, consisting of maintenance and supplies, depreciation and amortization, and other operating expenses (such as insurance, property taxes, sales taxes, marketing costs and operating costs from the Company’s retail sites) decreased by $305,000 in 2015 compared to 2014 and decreased $502,000 in 2014 compared to 2013.
The Company's maintenance and supplies costs were 6.6% of total revenue in 2015, 11.0% of total revenue in 2014 and 10.2% of total revenue in 2013. Maintenance and supplies costs decreased by $602,000 and $100,000 in 2015 and 2014 compared to 2014 and 2013, respectively. The decrease in 2015 compared to 2014 was due to the expiration of four fixed fee maintenance contracts at existing sites and the sale of the Company’s units in Turkey, which also had fixed fee maintenance contracts. The existing sites with fixed fee maintenance contracts that expired, now receive maintenance on a scheduled and on an as needed basis, which is more cost effective. The decrease in 2014 compared to 2013 is due to the expiration of two fixed fee maintenance contracts at existing sites and the sale of the Company’s units in Turkey, which also had fixed fee maintenance contracts. The existing sites with fixed fee maintenance contracts that expired, now receive maintenance on a scheduled and on an as needed basis, which is more cost effective.
Depreciation and amortization costs as a percentage of total revenue were 37.1%, 40.0%, and 35.9% in 2015, 2014 and 2013, respectively. Depreciation and amortization costs decreased $32,000 and $138,000 in 2015 and 2014 compared to 2014 and 2013, respectively. The decrease in 2015 compared to 2014 is due to the sale of EWRS Turkey in 2014, offset by increased depreciation in 2015 for the Company’s new site, which started in December 2014, and two Cobtalt-60 reloads, which occurred during the second and third quarters 2015. The decrease in 2014 compared to 2013 is due to the extension of two customer agreements which spread the remaining depreciation expense over the extended contract term. In addition, the sale of EWRS Turkey lessened depreciation expense.
Other direct operating costs as a percentage of total revenue were 15.7%, 14.8% and 14.4% in 2015, 2014 and 2013, respectively. Other direct operating costs increased by $329,000 in 2015 compared to 2014 and decreased by $264,000 in 2014 compared to 2013. The increase in 2015 is due to increased operating costs at the Company’s retail sites, offset slightly by lower insurance costs. The decrease in 2014 is due to lower insurance costs and property taxes.
21
SELLING AND ADMINISTRATIVE EXPENSE
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Selling and administrative costs | $ | 3,496 | (3.7 | )% | $ | 3,630 | (9.8 | )% | $ | 4,025 | ||||||||||
Percentage of total revenue | 21.1 | % | 23.5 | % | 22.9 | % |
The Company's selling and administrative costs decreased $134,000 in 2015 compared to 2014 and decreased $395,000 in 2014 compared to 2013. The decrease in 2015 is due to consulting fees that were expensed in 2014, a decrease in state and local taxes paid, offset by an increase in stock-based compensation expense. The decrease in 2014 is due to reduction in payroll expense driven by lower headcount, building rent, travel expense, and legal and consulting fees, partially offset by increased tax and audit fees. Building rent decreased due to accrued rent relating to a sublease of a portion of the Company’s office space, recorded in the first quarter of 2013.
INTEREST EXPENSE
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Interest expense | $ | 1,239 | (27.1 | )% | $ | 1,699 | (5.6 | )% | $ | 1,799 | ||||||||||
Percentage of total revenue | 7.5 | % | 11.0 | % | 10.2 | % |
The Company's interest expense decreased $460,000 and $100,000 in 2015 and 2014 compared to 2014 and 2013, respectively. The decrease in 2015 compared to 2014 is due, in part, to the sale of EWRS Turkey in 2014, which accounted for approximately $100,000 of expense in 2014. In addition, the Company had a lower average principal base in 2015, effectively reducing interest expense. The decrease in 2014 compared to 2013 is due to a lower average principal base in 2014, effectively reducing interest expense. In addition, the Company paid off one contract in 2014.
(LOSS) ON WRITE DOWN INVESTMENT IN EQUITY SECURITIES
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
(Loss) on write down investment in equity securities | $ | 2,140 | 2,140.0 | % | $ | 0 | 0.0 | % | $ | 0 | ||||||||||
Percentage of total revenue | 12.9 | % | 0.0 | % | 0.0 | % |
(Loss) on the write down of the Company’s investment in equity securities is due to the other-than-temporary impairment assessment performed at June 30, 2015. At June 30, 2015, the Company adjusted the carrying value of its investment in Mevion to the determined fair value of $600,000 and recorded a $2,114,000 impairment loss. Subsequently, the Company engaged a third party expert to review its assessment of the fair value of the Company’s common stock in Mevion and as a result, adjusted the impairment loss an additional $26,000. For the year ended December 31, 2015 the impairment loss was $2,140,000 and the fair value was approximately $579,000.
This transaction is treated as a capital loss for tax purposes which may be deducted only to the extent the Company has capital gains. The Company is not aware of any event or transaction planned where the Company would generate a capital gain. Therefore a full valuation allowance was recorded against the income tax benefit from the impairment loss, and the net impact to the income tax provision is $0.
22
(LOSS) ON SALE OF SUBSIDIARY
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
(Loss) on sale of subsidiary | $ | 0 | 572.0 | % | $ | (572 | ) | (572.0 | )% | $ | 0 | |||||||||
Percentage of total revenue | 0.0 | % | (3.7 | )% | 0.0 | % |
Loss on sale of subsidiary was $0 in 2015 compared to $572,000 in 2014. Effective May 31, 2014 (with closing occurring June 10, 2014) the Company sold EWRS Turkey for EUR 4.2 million (approximately $6.0M). The proceeds were used to pay-off outstanding debt associated with the Turkey operations and the excess was cash to the Company of $768,000.
GAIN (LOSS) FOREIGN CURRENCY TRANSACTIONS
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Gain (loss) foreign transactions | $ | 0 | (161.0 | )% | $ | 161 | 113.7 | % | $ | 1,174 | ) | |||||||||
Percentage of total revenue | 0.0 | % | 1.0 | % | (6.7 | )% |
The (loss) gain from foreign currency transactions was $0 in 2015 compared to $161,000 in 2014, and increased $1,335,000 in 2014 compared to 2013. The decrease in 2015 from foreign currency transactions is due to the sale of EWRS Turkey in 2014, which meant that there were no more significant amounts of transactions or held cash in foreign currency as of June 10, 2014. The increase in 2014 from foreign currency transactions is due to the strengthening of the Turkish Lira against the US dollar.
INTEREST AND OTHER INCOME
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Interest and other income | $ | 18 | (35.7 | )% | $ | 28 | 12.0 | % | $ | 25 | ||||||||||
Percentage of total revenue | 0.1 | % | 0.2 | % | 0.1 | % |
Interest and other income decreased $10,000 in 2015 compared to 2014 and increased $3,000 in 2014 compared to 2013. The decrease in 2015 was due to lower interest income because the Company closed out the certificate of deposit on January 2, 2015.
INCOME TAX EXPENSE
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Income tax expense | $ | 434 | 236.4 | % | $ | 129 | 53.6 | % | $ | 84 | ||||||||||
Percentage of total revenue | 2.6 | % | 0.8 | % | 0.5 | % | ||||||||||||||
Percentage of (loss) before income taxes | (39.9 | )% | (15.7 | )% | (36.8 | )% |
23
Income tax expense increased $305,000 in 2015 compared to 2014 and increased $45,000 in 2014 compared to 2013. The increase in 2015 is due to income from operations of the Company’s subsidiaries. The loss incurred on the write-down of the Company’s investment in equity securities is a capital loss which is treated as non-deducible expense for income tax provision purposes and as such, a full valuation allowance was recorded against this loss and the net impact to the provision was $0. The increase in 2014 compared to 2013 is due to income from operations of the Company’s subsidiaries. Generally the Company has higher state income taxes because they are calculated at the Company’s profitable operating subsidiary level, where in many states, separate state income tax returns are required and net operating loss carryforwards cannot be applied.
The Company anticipates that it will continue to record income tax expense if it operates profitably in the future. Currently there are state income tax payments required for most states in which the Company operates. However, there are minimal current federal income tax payments required due to net operating loss carryforwards and other deferred tax assets available for federal tax purposes.
The Company had a net operating loss carryforward for federal income tax return purposes at December 31, 2015 of approximately $7,872,000.
NET INCOME ATTRIBUTABLE TO NON-CONTROLLING INTERESTS
(In thousands) | 2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Net income attributable to non-controlling interests | $ | 946 | 142.6 | % | $ | 390 | 96.0 | % | $ | 199 | ||||||||||
Percentage of total revenue | 5.7 | % | 2.5 | % | 1.1 | % |
Net income attributable to non-controlling interests increased $556,000 and $191,000 in 2015 and 2014 compared to 2014 and 2013, respectively. Net income attributable to non-controlling interests represents the pre-tax income earned by the 19% non-controlling interest in GKF, and the pre-tax income or losses of the non-controlling interests in various subsidiaries controlled by GKF. The decrease or increase in net income attributable to non-controlling interests reflects the relative profitability of GKF.
NET (LOSS) ATTRIBUTABLE TO AMERICAN SHARED HOSPITAL SERVICES
(In thousands,
except per share amounts) |
2015 |
Increase
(Decrease) |
2014 |
Increase
(Decrease) |
2013 | |||||||||||||||
Net (loss) income attributable to ASHS | $ | (1,522 | ) | (59.9 | )% | $ | (952 | ) | (205.1 | )% | $ | (312 | ) | |||||||
Net (loss) income per share attributable to ASHS, diluted | $ | (0.28 | ) | (47.3 | )% | $ | (0.19 | ) | (171.4 | )% | $ | (0.07 | ) |
Net loss attributable to American Shared Hospital Services was $1,522,000 in 2015 and $952,000 in 2014 compared to a net loss of $952,000 and $312,000 in 2014 and 2013, respectively. Excluding the loss on sale of subsidiary of $572,000 and foreign currency gains of $161,000 in 2014 and the write-down of the Company’s investment in Mevion of $2,140,000 in 2015, net income increased $1,159,000 in 2015 compared to 2014. The increase in net income in 2015 compared to 2014 is due to increased volumes and average reimbursement per procedures, in addition to lower costs of revenue. The $640,000 decrease in net income in 2014 was primarily due to the loss on sale of EWRS Turkey of $572,000.
IMPAIRMENT ANALYSIS OF INVESTMENT IN EQUITY SECURITIES
The Company has previously participated in several Mevion rounds of financing and has carried its investment at cost. The Company reviews this investment on a quarterly basis for impairment in light of the length of time and extent to which market value has been below cost, the financial condition and near term prospects of Mevion, current market conditions and events, and our ability and intent to retain our investment for a period sufficient to allow for an anticipated recovery in the market value, or as events or circumstances might indicate that the carrying value of the investment may be below its cost basis on an other-than-temporary impairment basis. The Company evaluated its common stock investment in Mevion of $2,709,000, for impairment at December 31, 2014, and in light of available information, determined that impairment was not other-than temporary.
24
On July 27, 2015 Mevion cancelled its planned initial public offering (“IPO”) and subsequently announced on August 4, 2015 that it had entered into an investment agreement where up to $200 million will be invested by HOPU Investments, YuanMing Capital and existing U.S. investors. Concurrent with this investment, Mevion and the lead investors intend to form a joint venture to produce, sell, and service proton therapy systems for the Chinese market. The Company’s investment in the common stock of Mevion represents an approximate 0.46% interest following this latest private placement transaction on a fully diluted basis.
In light of the cancellation of Mevion’s IPO, the Company reviewed its investment in Mevion for impairment. The company determined that its investment was other than temporarily impaired and recognized an impairment loss of $2,114,000 at June 30, 2015. In determining the fair value of the Company’s common stock in Mevion, the Company engaged a third party expert to review the valuation of its investment in Mevion common stock. The third party utilized the market valuation approach and an option waterfall model calibrated to Mevion’s last round of funding. Each equity class was examined and priced according to its liquidation preferences. Based on the third party analysis, an additional impairment loss of $26,000 was recognized by the Company. The fair value of the Company’s investment in Mevion, as of December 31, 2015, is approximately $579,000 with an impairment loss for the year of $2,140,000.
The $2,140,000 other than temporary impairment of its investment in Mevion is recorded in other income (loss) on the Company’s Condensed Consolidated Statement of Operations. This transaction is treated as a capital loss for tax purposes which may be deducted only to the extent the Company has capital gains. The Company is not aware of any event or transaction planned where the Company would generate a capital gain. Therefore, a full valuation allowance was recorded against the income tax benefit from the impairment loss, and the net impact to the income tax provision for the year ended December 31, 2015 was $0.
The first MEVION S250, located at Barnes-Jewish Hospital in St. Louis, MO (“Barnes-Jewish Hospital”), treated its first patient on December 19, 2013. The second MEVION S250, located at the Ackerman Cancer Center in Jacksonville, Florida (“Ackerman Cancer Center”), treated its first patient in April 2015. The third MEVION S250, located at Robert Wood Johnson University Hospital in New Brunswick, New Jersey (“Robert Wood Johnson”), started in May 2015. The Company’s first MEVION S250 system was delivered to UF Health Cancer Center at Orlando Health in November 2014 and is expected to begin treating patients in second quarter 2016.
LIQUIDITY AND CAPITAL RESOURCES
The Company had cash and cash equivalents of $2,209,000 at December 31, 2015 compared to $1,059,000 at December 31, 2014, an increase of $1,150,000. The Company’s expected primary cash needs on both a short and long-term basis are for capital expenditures, business expansion, working capital, and other general corporate purposes.
Restricted cash of $50,000 at December 31, 2015 reflects cash that may only be used for the operations of GKF.
As of December 31, 2014, the Company had a $9,000,000 renewable line of credit with a bank secured by a certificate of deposit. The line of credit had been in place since June 2004. The Company’s earnings in 2013 were insufficient to satisfy the “profitability” covenant in the line of credit and the Company was not in compliance with the covenant until the Bank waived this default on August 8, 2014 and agreed to change the maturity date of the facility to December 31, 2014. The line was paid-off using the proceeds from the certificate of deposit on January 2, 2015.
Borrowing under the line of credit was subject to interest expense at a rate equal to the bank’s prime rate minus 0.5 percentage point, or alternatively at the Company’s discretion, the LIBOR rate plus 1.0 percentage point. The weighted average interest rate on money borrowed against the line of credit during 2014 was 1.40%. As of December 31, 2014, there was $8,780,000 borrowed against the line of credit.
Operating activities provided cash of $8,548,000 in 2015, which was driven by non-cash charges for depreciation and amortization of $6,190,000, loss on write down of investment in equity securities of $2,140,000, deferred income tax of $298,000, stock-based compensation expense of $226,000, changes in receivables of $178,000, and changes in accounts payable and accrued liabilities of $175,000. These were partially offset by a net loss of $576,000, other non-cash items of $31,000, and changes in prepaid expenses and other assets of $52,000.
25
The Company’s trade accounts receivable decreased by $154,000 to $3,038,000 at December 31, 2015 from $3,192,000 at December 31, 2014, primarily due to increased cash collections on a few customer accounts. The number of days revenue (sales) outstanding (“DSO”) in accounts receivable as of December 31, 2015 decreased to 67 days compared to 76 days at December 31, 2014. DSO can and does fluctuate depending on timing of customer payments received and the mix of fee per use versus retail customers. Retail sites generally have longer collection periods than fee per use sites.
Investing activities used $1,926,000 of cash in 2015 due to payments made towards the purchase of property and equipment of $1,916,000 and investment in equity securities of $10,000.
Financing activities used $5,472,000 of cash during 2015, primarily due to principal payments on long-term debt of $2,058,000, principal payments towards capital leases of $4,026,000, and distributions to non-controlling interests of $670,000. This was partially offset by long term debt financing on equipment of $1,016,000, capital contributions from non-controlling interests in subsidiaries of the Company of $46,000, and net proceeds from the Company’s certificate of deposit of $220,000.
The Company had negative working capital at December 31, 2015 of $2,691,000 compared to negative working capital of $2,004,000 at December 31, 2014. The $687,000 decrease in net working capital was due to net increases in the current portion of long term debt and capital leases of $897,000, increases in other accrued liabilities of $399,000, decreases in receivables of $178,000, decreases in current deferred tax asset of $367,000, and net decrease of $220,000 from the proceeds from the certificate of deposit and pay-down on the line of credit. This was offset by an increase in cash of $1,150,000, prepaid expenses of $155,000, and decreases in accounts payable and employee compensation expenses of $69,000. The Company believes that its cash flow from cash on hand, operations, and other cash resources are adequate to meet its scheduled debt and capital lease obligations during the next 12 months. See additional discussion below related to commitments.
The Company, in the past, has secured financing for its Gamma Knife and radiation therapy units. The Company has secured financing for its projects from several lenders and anticipates that it will be able to secure financing on future projects from these or other lending sources, but there can be no assurance that financing will continue to be available on acceptable terms. The Company meets all debt covenants required under notes with its lenders, and expects that any covenants required by future lenders will be acceptable to the Company.
IMPACT OF INFLATION AND CHANGING PRICES
The Company does not believe that inflation has had a significant impact on operations because a substantial majority of the costs that it incurs under its customer contracts are fixed through the term of the contract.
CONTRACTUAL OBLIGATIONS, COMMITMENTS, CONTINGENT LIABILITIES AND OFF BALANCE SHEET ARRANGEMENTS
The following table presents, as of December 31, 2015, the Company’s significant fixed and determinable contractual obligations by payment date. The payment amounts represent those amounts contractually due to the recipient and do not include any unamortized premiums or discounts, hedge basis adjustments, or other similar carrying value adjustments. Further discussion of the nature of each obligation is included in the notes to the consolidated financial statements referenced below. For purposes of this table, these commitments are listed in the less than 1 year and 1-3 year categories.
26
Payments Due by Period | ||||||||||||||||||||
Contractual Obligations |
Total amounts
committed |
Less than
1 year |
1-3 years | 4-5 years |
After
5 years |
|||||||||||||||
Long-term debt (includes interest) | $ | 11,106,000 | $ | 3,366,000 | $ | 5,375,000 | $ | 1,923,000 | $ | 442,000 | ||||||||||
Capital leases (includes interest) | 15,080,000 | 5,169,000 | 7,670,000 | 2,241,000 | - | |||||||||||||||
Promissory note (includes interest) | 1,263,000 | 150,000 | 1,113,000 | - | - | |||||||||||||||
Future equipment purchases | 37,250,000 | 11,450,000 | 25,800,000 | - | - | |||||||||||||||
Operating leases | 158,000 | 96,000 | 62,000 | - | - | |||||||||||||||
Total contractual obligations | $ | 64,857,000 | $ | 20,231,000 | $ | 40,020,000 | $ | 4,164,000 | $ | 442,000 |
Further discussion of the long-term debt commitment is included in Note 5, capital leases in Note 6, and operating leases in Note 12 of the consolidated financial statements.
As of December 31, 2015, the Company has commitments to purchase three MEVION S250 PBRT systems for $34,200,000. The Company has $5,000,000 in non-refundable deposits toward the purchase of these three PBRT systems from Mevion. The non-refundable deposits are recorded in the Condensed Consolidated Balance Sheets as deposits and construction in progress. The Company’s first MEVION S250 synchrocyclotron was delivered to UF Health Cancer Center at Orlando Health in late 2014. During 2015, the synchrocyclotron was installed and tested and it is expected that the first patient will be treated in the second quarter 2016. The Company’s second and third PBRT units will not begin construction until the Company identifies satisfactory placement sites. There is a cash payment of approximately $6,700,000 due in January 2016 for the first PBRT system. In January 2016, the Company secured lease financing of approximately $8,400,000 and payment of $6,700,000 was remitted to Mevion. The financing company also reimbursed the Company approximately $1,100,000 in previously remitted progress payments to Mevion and freight costs. An additional payment of approximately $600,000 is due to Mevion in two installments during 2016 which will be paid using the remaining proceeds from the January 2016 lease financing.
The remaining two PBRT projects do not have anticipated delivery dates. The timing of progress payments for PBRT contracts two and three are dependent upon future events and the Company has some flexibility to delay the due dates of these commitments. Approximately $25,800,000 of these commitments are not expected to start becoming due until 2017 or later and the Company is in discussions with lenders to finance the remaining two proton systems. There are no anticipated cash requirements for these commitments in the next 12 months.
As of December 31, 2015, the Company has commitments to purchase one Gamma Knife Perfexion system, one Cobalt-60 reload, and is scheduled to install one Gamma Knife Model 4C system, which the Company previously financed and owns. Total Gamma Knife commitments as of December 31, 2015 are $3,650,000. The Model 4C unit is scheduled to be installed in mid-2016 at the Company’s new customer site in Peru. There are cash requirements for the Peru commitment in the next 12 months of approximately $600,000. The Company believes that cash flow from cash on hand and operations will be sufficient to cover this payment. The Perfexion unit is for a site yet to be determined and it is the Company’s intent to finance this unit. The Cobalt-60 reload is for an existing site and it is the Company’s intent to finance this reload. There are no significiant cash requirements for the Perfexion system or the Cobalt-60 reload in the next 12 months. There can be no assurance that financing will be available for the Company’s current or future projects, or at terms that are acceptable to the Company.
2016 | Thereafter | Total | ||||||||||
Proton Beam Units | $ | 8,400,000 | $ | 25,800,000 | $ | 34,200,000 | ||||||
Gamma Knife Units | 3,650,000 | - | 3,650,000 | |||||||||
Total Commitments | $ | 12,050,000 | $ | 25,800,000 | $ | 37,850,000 |
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The table below presents information about certain market-sensitive financial instruments as of December 31, 2015. The fair values were determined based on quoted market prices for the same or similar instruments.
27
Payments Due by Period | There- | Fair | ||||||||||||||||||||||||||||||
(amounts in thousands) | 2016 | 2017 | 2018 | 2019 | 2020 | after | Total | Value | ||||||||||||||||||||||||
Fixed rate long-term debt and present value of capital leases | $ | 7,200 | $ | 7,113 | $ | 4,667 | $ | 2,851 | $ | 1,089 | $ | 429 | $ | 23,349 | $ | 23,341 | ||||||||||||||||
Average interest rates | 6.7 | % | 6.7 | % | 5.9 | % | 5.7 | % | 6.0 | % | 6.3 | % | 6.5 | % |
We do not hold or issue derivative instruments for trading purposes and are not a party to any instruments with leverage or prepayment features.
At December 31, 2015, we had no significant long-term, market-sensitive investments.
We have no affiliation with partnerships, trusts or other entities whose purpose is to facilitate off-balance sheet financial transactions or similar arrangements, and therefore have no exposure to the financing, liquidity, market or credit risks associated with such entities.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See the Index to Consolidated Financial Statements and Financial Statement Schedules included at page A-1 of this report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
(a) | Evaluation of disclosure controls and procedures. |
Our Chief Executive Officer and our Chief Financial Officer, after evaluating the effectiveness of the Company’s “disclosure controls and procedures” (as defined in the Securities Exchange Act of 1934 (“Exchange Act”) Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this annual report, have concluded that our disclosure controls and procedures are effective based on their evaluation of these controls and procedures required by paragraph (b) of Exchange Act Rules 13a-15 or 15d-15.
(b) | Management’s report on internal control over financial reporting. |
The management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting. The Company’s internal control system was designed to provide reasonable assurance to its management and Board of Directors regarding the preparation and fair presentation of published financial statements.
All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2015. In making this assessment, it used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control – Integrated Framework (2013). Based on this assessment management believes that, as of December 31, 2015, the Company’s internal control over financial reporting is effective based on those criteria.
28
(c) | Changes in internal controls over financial reporting. |
Our Chief Executive Officer and our Chief Financial Officer have evaluated the changes to the Company’s internal control over financial reporting that occurred during our last fiscal quarter ended December 31, 2015, as required by paragraph (d) of Exchange Act Rules 13a-15 and 15d-15, and have concluded that there were no such changes that materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
None.
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Information regarding directors is incorporated herein by reference from the Company’s definitive Proxy Statement for the 2016 Annual Meeting of Shareholders (the “2016 Proxy Statement”). Information regarding executive officers of the Company, included herein under the caption “Executive Officers of the Company” in Part I, Item 1 above, is incorporated herein by reference.
Information concerning the identification of our standing audit committee required by this Item is incorporated by reference from the 2016 Proxy Statement.
Information concerning our audit committee financial experts required by this Item is incorporated by reference from the 2016 Proxy Statement.
Information concerning compliance with Section 16(a) of the Exchange Act required by this Item is incorporated by reference from the 2016 Proxy Statement.
We have adopted a Code of Ethics that is available on our website at www.ashs.com . The information on our website is not part of this report. You may also request a copy of this document free of charge by writing our Corporate Secretary.
ITEM 11. EXECUTIVE COMPENSATION
Information required by this Item is incorporated herein by reference from the 2016 Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Information required by this Item is incorporated herein by reference from the 2016 Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Information required by this Item is incorporated herein by reference from the 2016 Proxy Statement.
29
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Information required by this Item is incorporated herein by reference from the 2016 Proxy Statement.
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) | Financial Statements and Schedules. |
The following Financial Statements and Schedules are filed with this Report:
Report of Independent Registered Public Accounting Firm
Audited Consolidated Financial Statements
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Shareholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Financial Statement Schedules- no schedules are included since the required information is not present or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the financial statements and notes thereto.
30
(b) | Exhibits. |
The following Exhibits are filed with this Report.
Exhibit | Incorporated by reference herein | |||||||
Number | Description | Form | Exhibit | Date | ||||
3.1 | Articles of Incorporation of the Company, as amended. | S-1 | 3.1 | 7/28/1988 | ||||
3.2 | By-laws of the Company, as amended and restated dated as of June 9, 2011. | 10-K | 3.2 | 3/30/2012 | ||||
4.1 | Rights Agreement dated as of March 22, 1999 between American Shared Hospital Services and American Stock Transfer & Trust Company, as Rights Agent. | 8-K | 4 | 4/1/1999 | ||||
4.1a | First Amendment to Rights Agreement dated as of March 12, 2009 to the American Shared Hospital Services and American Stock Transfer & Trust Company, as Rights Agent. | 8-K | 3.1 | 3/13/2009 | ||||
10.1 | Operating Agreement for GK Financing, LLC dated as of October 17, 1995 between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | S-1 | 10.12 | 10/26/1995 | ||||
10.1a | Amendment Agreement dated as of October 26, 1995 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | S-1/A | 10.13 | 3/29/1996 | ||||
10.1b | Second Amendment Agreement dated as of December 20, 1995 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | S-1/A | 10.13 | 3/29/1996 | ||||
10.1c | Third Amendment Agreement dated as of October 16, 1996 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | 10-K | 10.13b | 3/31/1998 | ||||
10.1d | Fourth Amendment Agreement dated as of March 31, 1998 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | 10-K | 10.8 | 3/31/1999 |
31
10.1e | Fifth Amendment Agreement dated as of March 31, 1998 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | 10-K | 10.9 | 3/31/1999 | ||||
10.1f | Sixth Amendment Agreement dated as of June 5, 1998 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | 10-K | 10.10 | 3/31/1999 | ||||
10.1g | Seventh Amendment Agreement dated as of October 18, 2006 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | 10-K | 10.52 | 4/2/2007 | ||||
10.1h | * | Eighth Amendment Agreement dated as of April 28, 2010 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | ||||||
10.1i | * | Ninth Amendment Agreement dated as of May 16, 2011 to the GK Financing, LLC Operating Agreement between American Shared Radiosurgery Services, Inc. and GKV Investments, Inc. | ||||||
10.2 | * | Lease Agreement for a Gamma Knife Unit dated as of October 29, 1996 between Methodist Healthcare Systems of San Antonio, Ltd., dba Southwest Texas Methodist Hospital and GK Financing, LLC. | ||||||
10.2a | * | Addendum to Lease Agreement for a Gamma Knife Unit dated as of October 31, 1996 between GK Financing, LLC and Methodist Healthcare System of San Antonio, Ltd., dba Southwest Texas Methodist Hospital and GK Financing, LLC. | ||||||
10.2b | * | Addendum Two to Lease Agreement for a Gamma Knife Unit dated as of October 16, 1997 between Methodist Healthcare System of San Antonio, Ltd., d.b.a. Southwest Texas Methodist Hospital and GK Financing, LLC. |
32
10.2c | * | Amendment to Lease Agreement for a Gamma Knife Unit dated as of December 13, 2003 between Methodist Healthcare Systems of San Antonio, Ltd., d/b/a Southwest Texas Methodist Hospital and GK Financing, LLC. | ||||||
10.2d | # | Second Amendment to Lease Agreement for a Gamma Knife Unit (Perfexion Upgrade) dated as of December 23, 2009 between GK Financing, LLC and Methodist Healthcare Systems of San Antonio, Ltd., d/b/a Southwest Texas Methodist Hospital. | 10-Q | 10.18b | 11/15/2010 | |||
10.3 | * | Lease Agreement for a Gamma Knife Unit dated as of April 10, 1997 between GK Financing, LLC and Yale-New Haven Ambulatory Services Corporation. | ||||||
10.3a | * | Addendum to Lease Agreement for a Gamma Knife Unit dated as of October 25, 2005 between Yale-New Haven Ambulatory Services Corporation and GK Financing, LLC. | ||||||
10.3b | * | Assignment, Assumption, and Amendment to Lease Agreement for a Gamma Knife Unit dated as of June 30, 2006 between Yale-New Haven Ambulatory Services Corporation, Yale-New Haven Hospital, Inc. a/k/a Yale-New Haven Hospital, and GK Financing, LLC. | ||||||
10.3c | # | Second Amendment to Lease Agreement for a Gamma Knife Unit (Perfexion Upgrade) dated as of May 15, 2009 between Yale-New Haven Hospital, Inc. a/k/a Yale-New Haven Hospital and GK Financing, LLC. | 10-Q/A | 10.19c | 11/10/2010 | |||
10.3d | Third Amendment to Lease Agreement for a Gamma Knife Unit dated as of July 1, 2014 between Yale-New Haven Hospital, Inc. a/k/a Yale-New Haven Hospital and GK Financing, LLC. | 10-Q | 10.19c | 11/14/2014 | ||||
10.4 | # | Purchased Services Agreement (for a Gamma Knife Unit) dated as of November 19, 2008 between GK Financing, LLC and Kettering Medical Center. | 10-Q | 10.21a | 8/14/2009 |
33
10.4a | # | First Amendment to Purchased Services Agreement (for a Gamma Knife Unit) dated as of June 11, 2009 between GK Financing, LLC and Kettering Medical Center. | 10-Q | 10.21b | 8/14/2009 | |||
10.4b | # | Second Amendment to Purchased Services Agreement (for a Gamma Knife Unit) dated as of February 27, 2014 between GK Financing, LLC and Kettering Medical Center. | 10-K | 10.21c | 4/1/2015 | |||
10.5 | # | Lease Agreement for a Gamma Knife Unit (Perfexion Upgrade) dated as of July 30, 2013 between Tufts Medical Center, Inc. and GK Financing, LLC. | 10-K | 10.22b | 3/31/2014 | |||
10.6 | # | Amended and Restated Equipment Lease Agreement (for a Gamma Knife Unit) dated as of December 12, 2014, between GK Financing, LLC and the Board of Trustees of the University of Arkansas on behalf of the University of Arkansas for Medical Sciences. | 10-Q | 10.4 | 8/19/2015 | |||
10.7 | * | Lease Agreement for a Gamma Knife Unit dated as of May 28, 1999 between GK Financing, LLC and Froedtert Memorial Lutheran Hospital. | ||||||
10.7a | Addendum dated as of June 24, 1999 to Lease Agreement for a Gamma Knife Unit between GK Financing, LLC and Froedtert Memorial Lutheran Hospital. | 10-K | 10.27 | 3/29/2000 | ||||
10.7b | Amendment dated as of July 12, 1999 to Lease Agreement for a Gamma Knife Unit between GK Financing, LLC and Froedtert Memorial Lutheran Hospital. | 10-K | 10.28 | 3/29/2000 | ||||
10.7c | Amendment dated as of August 24, 1999 to Lease Agreement for a Gamma Knife Unit between GK Financing, LLC and Froedtert Memorial Lutheran Hospital. | 10-K | 10.29 | 3/29/2000 | ||||
10.7d | * | First Amendment to Lease Agreement for a Gamma Knife Unit dated as of December 29, 2008 between GK Financing, LLC and Froedtert Memorial Lutheran Hospital. | ||||||
10.7e | * | Second Amendment to Lease Agreement for a Gamma Knife Unit dated as of May 16, 2013 between GK Financing, LLC and Froedtert Memorial Lutheran Hospital, Inc. |
34
10.7f | Third Amendment to Lease Agreement for a Gamma Knife Unit dated as of December 15, 2014 between GK Financing, LLC and Froedtert Memorial Lutheran Hospital, Inc. | 10-K | 10.26c | 4/1/2015 | ||||
10.8 | * | Lease Agreement for a Gamma Knife Unit dated as of December 11, 1996 between GK Financing, LLC and The Community Hospital Group, Inc., dba JFK Medical Center. | ||||||
10.8a | * | Addendum One to Lease Agreement for a Gamma Knife Unit dated on January 9, 2008 and effective as of July 1, 2002 between The Community Hospital Group, Inc., dba JFK Medical Center and GK Financing, LLC. | ||||||
10.8b | * | Addendum Two to Lease Agreement for a Gamma Knife Unit dated as of January 9, 2008 between The Community Hospital Group, Inc., dba JFK Medical Center and GK Financing, LLC. | ||||||
10.8c | Addendum Three to Lease Agreement for a Gamma Knife Unit dated as of April 25, 2015, between The Community Hospital Group, Inc., dba JFK Medical Center and GK Financing, LLC. | 10-Q | 10.5 | 8/19/2015 | ||||
10.9 | * | Lease Agreement for a Gamma Knife Unit dated as of June 3, 1999 between GK Financing, LLC and Sunrise Hospital and Medical Center, LLC d/b/a Sunrise Hospital and Medical Center. | ||||||
10.9a | * | Addendum to Lease Agreement for a Gamma Knife Unit dated as of December 1, 1998 between Sunrise Hospital and Medical Center, LLC d/b/a Sunrise Hospital and Medical Center and GK Financing, LLC. | ||||||
10.9b | * | Addendum Two to Lease Agreement for a Gamma Knife Unit dated as of January 17, 2007 between GK Financing, LLC and Sunrise Hospital Medical Center, LLC d/b/a Sunrise Hospital Medical Center. |
35
10.9c | * | Addendum Three to Lease Agreement for a Gamma Knife Unit dated as of June 20, 2007 between GK Financing, LLC and Sunrise Hospital and Medical Center, LLC d/b/a Sunrise Hospital and Medical Center. | ||||||
10.9d | * | Addendum Four to Lease Agreement for a Gamma Knife Unit dated as of February 8, 2010 between GK Financing, LLC and Sunrise Hospital and Medical Center, LLC d/b/a Sunrise Hospital and Medical Center. | ||||||
10.9e | # | Addendum Five to Lease Agreement for a Gamma Knife Unit dated as of May 18, 2012 between GK Financing, LLC and Sunrise Hospital and Medical Center, LLC d/b/a Sunrise Hospital and Medical Center. | 10-Q | 10.66 | 11/14/2013 | |||
10.10 | * | Lease Agreement for a Gamma Knife Unit dated as of November 1, 1999 between GK Financing, LLC and Jackson HMA, Inc. d/b/a Central Mississippi Medical Center. | ||||||
10.10a | Addendum to Lease Agreement for a Gamma Knife Unit dated as of November 1, 1999 between Jackson HMA, Inc. dba Central Mississippi Medical Center and GK Financing, LLC. | 10-Q | 10.34 | 8/10/2001 | ||||
10.10b | # | Addendum Two to Lease Agreement for a Gamma Knife Unit dated as of November 6, 2006 between GK Financing, LLC and Jackson HMA, Inc. d/b/a Central Mississippi Medical Center. | 10-K | 10.51 | 4/2/2007 | |||
10.10c | * | Amendment Three to Lease Agreement for a Gamma Knife Unit dated as of February 23, 2010 between GK Financing, LLC and Jackson HMA, LLC d/b/a Central Mississippi Medical Center. | ||||||
10.11 | * | Lease Agreement for a Gamma Knife Unit dated as of February 18, 2000 between GK Financing, LLC and OSF HealthCare System. | ||||||
10.11a | # | Addendum to Lease Agreement for a Gamma Knife Unit dated as of April 13, 2007, between GK Financing, LLC and OSF Healthcare System. | 10-Q | 10.35 | 8/14/2007 |
36
10.11b | # | Addendum Two to Lease Agreement for a Gamma Knife Unit dated as of October 31, 2012 between GK Financing, LLC and OSF Healthcare System. | 10-Q | 10.35b | 8/14/2013 | |||
10.12 | * | Equipment Lease Agreement (for a Gamma Knife Unit) dated as of September 13, 2001 between GK Financing, LLC and Mercy Medical Center. | ||||||
10.12a | Amendment Number One to Equipment Lease Agreement (for a Gamma Knife Unit) dated as of September 13, 2001 between GK Financing, LLC and Mercy Medical Center. | 10-Q | 10.41 | 11/14/2002 | ||||
10.13 | * | Equipment Lease Agreement (for a Gamma Knife Unit) dated as of February 13, 2003 between GK Financing, LLC and AHS Albuquerque Regional Medical Center, LLC. | ||||||
10.13a | # | Amendment to Equipment Lease Agreement (Perfexion Upgrade) dated as of April 8, 2011 between GK Financing, LLC and Lovelace Health System, Inc., d/b/a Lovelace Medical Center. | 10-Q | 10.62 | 8/15/2011 | |||
10.13b | Assignment and Assumption of Purchase and License Agreement dated as of February 2, 2011 between with Elekta, Inc., GK Financing, LLC and Albuquerque GK Equipment, LLC. | 10-Q | 10.62a | 8/15/2011 | ||||
10.14 | * | Equipment Lease Agreement (for a Gamma Knife Unit) dated as of March 21, 2003 between GK Financing, LLC and Northern Westchester Hospital Center. | ||||||
10.14a | # | Amendment to Equipment Lease Agreement (Perfexion Upgrade) dated as of June 8, 2012 between GK Financing, LLC and Northern Westchester Hospital Center. | 10-Q | 10.46a | 8/14/2013 | |||
10.15 | * | Equipment Lease Agreement (for a Gamma Knife Unit) dated as of May 28, 2004 between GK Financing, LLC and Mercy Health Center. | ||||||
10.15a | * | Addendum One to Equipment Lease Agreement (for a Gamma Knife Unit) dated as of December 23, 2011 between Mercy Health Center and GK Financing, LLC. |
37
10.15b | Addendum Two to Equipment Lease Agreement (for a Gamma Knife Unit) dated as of July 31, 2015, between Mercy Hospital Oklahoma City, Inc. and GK Financing, LLC. | 10-Q | 10.1 | 11/12/2015 | ||||
10.16 | # | Purchased Services Agreement (for a Gamma Knife Unit) dated as of March 5, 2008 between GK Financing, LLC and USC University Hospital, Inc. | 10-Q | 10.57 | 5/14/2008 | |||
10.16a | # | First Amendment to Purchased Services Agreement (for a Gamma Knife Unit) dated as of April 1, 2009 between GK Financing, LLC and University of Southern California. | 10-Q | 10.57a | 8/14/2009 | |||
10.16b | # | Second Amendment to Purchased Services Agreement (for a Gamma Knife Unit) dated as of October 1, 2013 between GK Financing, LLC and University of Southern California. | 10-Q | 10.57b | 8/14/2014 | |||
10.17 | # | Equipment Lease Agreement (for a Gamma Knife Unit) dated as of May 1, 2010 between GK Financing, LLC and Fort Sanders Regional Medical Center. | 10-Q | 10.60 | 5/16/2011 | |||
10.17a | * | Amendment to Lease Agreement (for a Gamma Knife Unit) dated as of January 3, 2012 between GK Financing, LLC and Fort Sanders Regional Medical Center. | ||||||
10.18 | # | Leksell Gamma Knife Perfexion Purchased Services Agreement dated as of August 5, 2011 between Jacksonville GK Equipment, LLC and St. Vincent’s Medical Center, Inc. | 10-K | 10.63 | 3/30/2012 | |||
10.18a | # | First Amendment to the Leksell Gamma Knife Perfexion Purchased Services Agreement dated as of October 10, 2011 between Jacksonville GK Equipment, LLC and St. Vincent’s Medical Center, Inc. | 10-K | 10.63a | 3/30/2012 | |||
10.19 | # | Leksell Gamma Knife Perfexion Purchased Services Agreement dated as of January 19, 2012 between GK Financing, LLC and Sacred Heart Health System, Inc. | 10-Q | 10.65 | 5/15/2013 |
38
10.20 | # | Leksell Gamma Knife Perfexion Purchased Services Agreement dated as of March 27, 2014 between GK Financing, LLC and PeaceHealth doing business through its operating division PeaceHealth Sacred Heart Medical Center at RiverBend. | 10-K | 10.67 | 4/1/2015 | |||
10.21 | • | American Shared Hospital Services Incentive Compensation Plan as Amended and Restated (Formerly the 2006 Stock Incentive Plan) effective April 16, 2015. | 10-Q | 10.3 | 8/19/2015 | |||
10.22 | Loan Agreement dated as of September 30, 2011 between Bank of America, N.A. and American Shared Hospital Services. | 10-Q | 10.48a | 8/14/2014 | ||||
10.23a | Amendment No. 1 to Loan Agreement dated as of August 31, 2012 between Bank of America, N.A. and American Shared Hospital Services. | 10-Q | 10.48b | 8/14/2014 | ||||
10.23b | Amendment No. 2 to Loan Agreement dated as of September 20, 2013 between Bank of America, N.A. and American Shared Hospital Services. | 10-Q | 10.48c | 8/14/2014 | ||||
10.23c | Waiver and Amendment No. 3 to Loan Agreement dated as of August 8, 2014 between Bank of America, N.A. and American Shared Hospital Services. | 10-Q | 10.48d | 8/14/2014 | ||||
10.26 | *• | Form of Indemnification Agreement between American Shared Hospital Services and members of its Board of Directors. | ||||||
21.1 | * |
Subsidiaries of American Shared Hospital Services |
||||||
23.1 | * |
Consent of Independent Registered Public Accounting Firm |
||||||
31.1 | * | Certification of Chief Executive Officer pursuant to Rule 13a-14a/15d-14a, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | ||||||
31.2 | * | Certification of Chief Financial Officer pursuant to Rule 13a-14a/15d-14a, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | ||||||
32.1 | ǂ | Certifications of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
101.INS | * | XBRL Instance Document | ||||||
101.SCH | * | XBRL Taxonomy Extension Schema Document |
39
101.CAL | * | XBRL Taxonomy Calculation Linkbase Document | ||||||
101.DEF | * | XBRL Taxonomy Definition Linkbase Document | ||||||
101.LAB | * | XBRL Taxonomy Label Linkbase Document | ||||||
101.PRE | * | XBRL Taxonomy Extension Presentation Linkbase Document |
* | Filed herewith. | |||||||
ǂ | Furnished herewith. | |||||||
# | Confidential material appearing in this document has been omitted and filed separately with the Securities and Exchange Commission in accordance with Rule 24b-2, promulgated under the Securities and Exchange Act of 1934, as amended. Omitted information has been replaced with asterisks. | |||||||
• | Indicates management compensatory plan, contract, or arrangement. |
40
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
AMERICAN SHARED HOSPITAL SERVICES | ||
(Registrant) | ||
March 29, 2016 | By: | /s/ Ernest A. Bates, M.D. |
Ernest A. Bates, M.D. | ||
Chairman of the Board and Chief Executive Officer |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Ernest A. Bates | Chairman of the Board and | March 29, 2016 | ||
Ernest A. Bates, M.D. | Chief Executive Officer | |||
(Principal Executive Officer) | ||||
/s/ David A. Larson | Director | March 29, 2016 | ||
David A. Larson, M.D. | ||||
/s/ S. Mert Ozyurek | Director | March 29, 2016 | ||
S. Mert Ozyurek | ||||
/s/ John F. Ruffle | Director | March 29, 2016 | ||
John F. Ruffle | ||||
/s/ Raymond C. Stachowiak | Director | March 29, 2016 | ||
Raymond C. Stachowiak | ||||
/s/ Stanley S. Trotman, Jr. | Director | March 29, 2016 | ||
Stanley S. Trotman, Jr. | ||||
/s/ Craig K. Tagawa | Chief Operating Officer and | March 29, 2016 | ||
Craig K. Tagawa | Chief Financial Officer | |||
(Principal Accounting Officer) |
41
AMERICAN SHARED HOSPITAL SERVICES
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
and
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2015, 2014 and 2013
Contents
PAGE | |
Report of Independent Registered Public Accounting Firm | 1 |
Consolidated Financial Statements | |
Balance sheets | 2 |
Statements of operations | 3 |
Statements of comprehensive (loss) | 4 |
Statement of shareholders’ equity | 5 |
Statements of cash flows | 6 – 7 |
Notes to financial statements | 8 – 25 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders
American Shared Hospital Services
We have audited the accompanying consolidated balance sheets of American Shared Hospital Services and subsidiaries (the “Company”) as of December 31, 2015 and 2014, and the related consolidated statements of operations, comprehensive (loss), shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2015. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of American Shared Hospital Services and subsidiaries at December 31, 2015 and 2014, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2015, in conformity with accepted accounting principles generally accepted in the United States of America.
/s/ Moss Adams LLP
San Francisco, California
March 29, 2016
1
American Shared Hospital Services
Consolidated Balance Sheets
ASSETS
See accompanying notes | 2 |
American Shared Hospital Services
Consolidated Statements of Operations
YEARS ENDED DECEMBER 31, | ||||||||||||
2015 | 2014 | 2013 | ||||||||||
Revenue: | ||||||||||||
Medical services | $ | 16,548,000 | $ | 15,417,000 | $ | 17,584,000 | ||||||
16,548,000 | 15,417,000 | 17,584,000 | ||||||||||
Costs of revenue: | ||||||||||||
Maintenance and supplies | 1,089,000 | 1,691,000 | 1,791,000 | |||||||||
Depreciation and amortization | 6,139,000 | 6,171,000 | 6,309,000 | |||||||||
Other direct operating costs | 2,605,000 | 2,276,000 | 2,540,000 | |||||||||
9,833,000 | 10,138,000 | 10,640,000 | ||||||||||
Gross margin | 6,715,000 | 5,279,000 | 6,944,000 | |||||||||
Selling and administrative expense | 3,496,000 | 3,630,000 | 4,025,000 | |||||||||
Interest expense | 1,239,000 | 1,699,000 | 1,799,000 | |||||||||
Operating income (loss) | 1,980,000 | (50,000 | ) | 1,120,000 | ||||||||
(Loss) on write down investment in equity securities | (2,140,000 | ) | - | - | ||||||||
(Loss) on sale of subsidiary | - | (572,000 | ) | - | ||||||||
Gain (loss) foreign currency transactions | - | 161,000 | (1,174,000 | ) | ||||||||
Interest and other income | 18,000 | 28,000 | 25,000 | |||||||||
(Loss) before income taxes | (142,000 | ) | (433,000 | ) | (29,000 | ) | ||||||
Income tax expense | 434,000 | 129,000 | 84,000 | |||||||||
Net (loss) | (576,000 | ) | (562,000 | ) | (113,000 | ) | ||||||
Less: net income attributable to non-controlling interests | (946,000 | ) | (390,000 | ) | (199,000 | ) | ||||||
Net (loss) attributable to American Shared Hospital Services | $ | (1,522,000 | ) | $ | (952,000 | ) | $ | (312,000 | ) | |||
Net (loss) per share attributable to American Shared Hospital Services: | ||||||||||||
(Loss) per common share- basic | $ | (0.28 | ) | $ | (0.19 | ) | $ | (0.07 | ) | |||
(Loss) per common share- diluted | $ | (0.28 | ) | $ | (0.19 | ) | $ | (0.07 | ) |
See accompanying notes | 3 |
American Shared Hospital Services
Consolidated Statements of Comprehensive (Loss)
YEARS ENDED DECEMBER 31, | ||||||||||||
2015 | 2014 | 2013 | ||||||||||
Net (loss) attributable to | $ | (1,522,000 | ) | $ | (952,000 | ) | $ | (312,000 | ) | |||
American Shared Hospital Services | ||||||||||||
Other comprehensive income (loss): | ||||||||||||
Foreign currency translation adjustments | - | 779,000 | (142,000 | ) | ||||||||
Total comprehensive (loss) | (1,522,000 | ) | (173,000 | ) | (454,000 | ) | ||||||
Less comprehensive income (loss) attributable to the non-controlling interest | - | 337,000 | (57,000 | ) | ||||||||
Comprehensive (loss) attributable to American Shared Hospital Services | $ | (1,522,000 | ) | $ | (510,000 | ) | $ | (397,000 | ) |
See accompanying notes | 4 |
American Shared Hospital Services
Consolidated Statement of Shareholders’ Equity
THREE YEARS ENDED DECEMBER 31, 2015
Accumulated | ||||||||||||||||||||||||||||||||
Additional | Other | Non-controlling | ||||||||||||||||||||||||||||||
Common | Common | Paid-in | Comprehensive | Retained | Sub-Total | Interests in | ||||||||||||||||||||||||||
Shares | Stock | Capital | (Loss) Income | Earnings | ASHS | Subsidiaries | Total | |||||||||||||||||||||||||
Balances at January 1, 2013 | 4,606,000 | $ | 8,578,000 | $ | 4,902,000 | $ | (357,000 | ) | $ | 6,806,000 | $ | 19,929,000 | $ | 4,901,000 | $ | 24,830,000 | ||||||||||||||||
Stock based compensation expense | 3,000 | - | 88,000 | - | - | 88,000 | - | 88,000 | ||||||||||||||||||||||||
Non-controlling interest investment in subsidiaries | - | - | - | - | - | - | 184,000 | 184,000 | ||||||||||||||||||||||||
Cumulative translation adjustment | - | - | - | (85,000 | ) | - | (85,000 | ) | (57,000 | ) | (142,000 | ) | ||||||||||||||||||||
Cash distributions to non-controlling interest | - | - | - | - | - | - | (792,000 | ) | (792,000 | ) | ||||||||||||||||||||||
Net (loss) income | - | - | - | - | (312,000 | ) | (312,000 | ) | 199,000 | (113,000 | ) | |||||||||||||||||||||
Balances at December 31, 2013 | 4,609,000 | 8,578,000 | 4,990,000 | (442,000 | ) | 6,494,000 | 19,620,000 | 4,435,000 | 24,055,000 | |||||||||||||||||||||||
Repurchase of common stock | (1,000 | ) | (2,000 | ) | - | - | - | (2,000 | ) | - | (2,000 | ) | ||||||||||||||||||||
Stock based compensation expense | 3,000 | - | 373,000 | - | - | 373,000 | - | 373,000 | ||||||||||||||||||||||||
Private placement common stock | 750,000 | 1,800,000 | - | - | - | 1,800,000 | - | 1,800,000 | ||||||||||||||||||||||||
Fair value of warrants issued with promissory notes | - | - | 145,000 | - | - | 145,000 | - | 145,000 | ||||||||||||||||||||||||
Non-controlling interest investment in subsidiaries | - | - | - | - | - | - | 517,000 | 517,000 | ||||||||||||||||||||||||
Cash distributions to non-controlling interests | - | - | - | - | - | - | (951,000 | ) | (951,000 | ) | ||||||||||||||||||||||
Cumulative translation adjustment | - | - | - | 442,000 | - | 442,000 | 337,000 | 779,000 | ||||||||||||||||||||||||
Net (loss) income | - | - | - | - | (952,000 | ) | (952,000 | ) | 390,000 | (562,000 | ) | |||||||||||||||||||||
Balances at December 31, 2014 | 5,361,000 | 10,376,000 | 5,508,000 | - | 5,542,000 | 21,426,000 | 4,728,000 | 26,154,000 | ||||||||||||||||||||||||
Stock based compensation expense | 3,000 | - | 226,000 | - | - | 226,000 | - | 226,000 | ||||||||||||||||||||||||
Non-controlling interest investment in subsidiaries | - | - | - | - | - | - | 46,000 | 46,000 | ||||||||||||||||||||||||
Cash distributions to non-controlling interests | - | - | - | - | - | - | (670,000 | ) | (670,000 | ) | ||||||||||||||||||||||
Net (loss) income | - | - | - | - | (1,522,000 | ) | (1,522,000 | ) | 946,000 | (576,000 | ) | |||||||||||||||||||||
Balances at December 31, 2015 | 5,364,000 | $ | 10,376,000 | $ | 5,734,000 | $ | - | $ | 4,020,000 | $ | 20,130,000 | $ | 5,050,000 | $ | 25,180,000 |
See accompanying notes | 5 |
American Shared Hospital Services
Consolidated Statements of Cash Flows
YEARS ENDED DECEMBER 31, | ||||||||||||
2015 | 2014 | 2013 | ||||||||||
OPERATING ACTIVITIES | ||||||||||||
Net (loss) | $ | (576,000 | ) | $ | (562,000 | ) | $ | (113,000 | ) | |||
Adjustments to reconcile net (loss) to net cash from operating activities: | ||||||||||||
Depreciation and amortization | 6,190,000 | 6,383,000 | 6,410,000 | |||||||||
(Gain) loss on disposal of assets | - | (1,000 | ) | 20,000 | ||||||||
Loss on write down investment in equity securities | 2,140,000 | - | - | |||||||||
Loss on sale of subsidiary | - | 572,000 | - | |||||||||
Deferred income tax | 298,000 | 76,000 | 59,000 | |||||||||
(Gain) loss on foreign currency transactions | - | (161,000 | ) | 1,174,000 | ||||||||
Stock-based compensation expense | 226,000 | 138,000 | 88,000 | |||||||||
Other non-cash items | (31,000 | ) | 107,000 | - | ||||||||
Changes in operating assets and liabilities: | ||||||||||||
Receivables | 178,000 | 1,069,000 | (643,000 | ) | ||||||||
Prepaid expenses and other assets | (52,000 | ) | 11,000 | 58,000 | ||||||||
Accounts payable and accrued liabilities | 175,000 | (859,000 | ) | 1,023,000 | ||||||||
Net cash from operating activities | 8,548,000 | 6,773,000 | 8,076,000 | |||||||||
INVESTING ACTIVITIES | ||||||||||||
Payment for purchase of property and equipment | (1,916,000 | ) | (5,212,000 | ) | (1,710,000 | ) | ||||||
Investment in equity securities | (10,000 | ) | (8,000 | ) | (14,000 | ) | ||||||
Proceeds from sale of subsidiary | - | 768,000 | - | |||||||||
Net cash used in investing activities | (1,926,000 | ) | (4,452,000 | ) | (1,724,000 | ) | ||||||
FINANCING ACTIVITIES | ||||||||||||
Principal payments on long-term debt | (2,058,000 | ) | (3,263,000 | ) | (3,523,000 | ) | ||||||
Principal payments on capital leases | (4,026,000 | ) | (4,429,000 | ) | (3,476,000 | ) | ||||||
Proceeds from long-term debt financing on property and equipment | 1,016,000 | 2,625,000 | 1,298,000 | |||||||||
Proceeds from certificate of deposit | 9,000,000 | - | - | |||||||||
Advances on line of credit | - | 1,140,000 | 369,000 | |||||||||
Payments on line of credit | (8,780,000 | ) | (1,200,000 | ) | (79,000 | ) | ||||||
Capital contributions from non-controlling interests | 46,000 | 117,000 | 184,000 | |||||||||
Distributions to non-controlling interests | (670,000 | ) | (951,000 | ) | (792,000 | ) | ||||||
Private placements of common stock | - | 1,800,000 | - | |||||||||
Common stock repurchase | - | (2,000 | ) | - | ||||||||
Proceeds from promissory notes | - | 1,000,000 | - | |||||||||
Net cash used in financing activities | (5,472,000 | ) | (3,163,000 | ) | (6,019,000 | ) | ||||||
Net change in cash and cash equivalents | 1,150,000 | (842,000 | ) | 333,000 | ||||||||
Effect of changes in foreign exchange rates on cash | - | (8,000 | ) | 12,000 | ||||||||
CASH AND CASH EQUIVALENTS, beginning of year | 1,059,000 | 1,909,000 | 1,564,000 | |||||||||
CASH AND CASH EQUIVALENTS, end of year | $ | 2,209,000 | $ | 1,059,000 | $ | 1,909,000 |
See accompanying notes | 6 |
American Shared Hospital Services
Consolidated Statements of Cash Flows
SUPPLEMENTAL CASH FLOW DISCLOSURE | ||||||||||||
Cash paid for interest | $ | 1,670,000 | $ | 2,070,000 | $ | 2,116,000 | ||||||
Cash paid for income taxes | $ | 25,000 | $ | 41,000 | $ | 44,000 | ||||||
SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES | ||||||||||||
Acquisition of equipment with capital lease financing | $ | 1,343,000 | $ | 3,709,000 | $ | 3,478,000 | ||||||
Warrants issued with promissory notes | $ | - | $ | 145,000 | $ | - | ||||||
Nonmonetary equipment trade-in | $ | - | $ | 700,000 | $ | - | ||||||
Equipment relieved in sale of subsidiary | $ | - | $ | (4,921,000 | ) | $ | - | |||||
Other assets relieved in sale of subsidiary | $ | - | $ | (826,000 | ) | $ | - | |||||
Debt relieved in sale of subsidiary | $ | - | $ | 5,181,000 | $ | - | ||||||
Other liabilities relieved in sale of subsidiary | $ | - | $ | 14,000 | $ | - | ||||||
Net equity relieved in sale of subsidiary | $ | - | $ | 1,351,000 | $ | - | ||||||
OCI released to net income in sale of subsidiary | $ | - | $ | (779,000 | ) | $ | - | |||||
Investment released to net income in sale of subsidiary | $ | - | $ | (1,360,000 | ) | $ | - |
See accompanying notes | 7 |
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 1 – Business and Basis of Presentation
Business – These consolidated financial statements include the accounts of American Shared Hospital Services (the “Company”) and its subsidiaries as follows: The Company wholly-owns the subsidiaries OR21, Inc. (“OR21”) and MedLeader.com, Inc. (“MedLeader”), PBRT Orlando, LLC (“Orlando”) and American Shared Radiosurgery Services (“ASRS”). The Company is also the majority owner of Long Beach Equipment, LLC (“LBE”). ASRS is the majority-owner of GK Financing, LLC (“GKF”) which wholly-owns the subsidiaries GK Financing U.K., Limited (“GKUK”), and Instituto de Gamma Knife del Pacifico S.A.C. (“GKPeru”). GKF is also the majority-owner of the subsidiaries Albuquerque GK Equipment, LLC (“AGKE”), Jacksonville GK Equipment, LLC (“JGKE”) and EWRS, LLC (“EWRS”), which, prior to its sale in June 2014, wholly-owned the subsidiary, EWRS Tibbi Cihazlar Ticaret Ltd Sti (“EWRS Turkey”).
The Company (through ASRS) and Elekta AB, the manufacturer of the Gamma Knife (through its wholly-owned United States subsidiary, GKV Investments, Inc.), entered into an operating agreement and formed GK Financing, LLC. During 2015 GKF provided Gamma Knife units to seventeen medical centers in the United States in the states of Arkansas, California, Connecticut, Florida, Illinois, Massachusetts, Mississippi, Nevada, New Jersey, New Mexico, New York, Tennessee, Oklahoma, Ohio, Texas, and Washington.
The Company also provided radiation therapy and related equipment directly to a medical center in Massachusetts.
The Company formed the subsidiaries GKUK and GKPeru, for the purposes of expanding its business internationally into the United Kingdom and Peru; LBE and Orlando to provide proton beam therapy services in Long Beach, California and Orlando, Florida; and AGKE and JGKE to provide Gamma Knife services in Albuquerque, New Mexico and Jacksonville, Florida. AGKE began operation in the second quarter 2011 and JGKE began operation in the fourth quarter 2011. Orlando is anticipated to begin operating in second quarter 2016. GKPeru is expected to begin operation in mid-2016. GKUK is inactive and LBE is not expected to generate revenue within the next two years.
The Company continues to develop its design and business model for “The Operating Room for the 21 st Century” SM (“OR21” SM ), through its 50% owned OR21, LLC. The remaining 50% is owned by an architectural design company. OR21 is not expected to generate significant revenue within the next two years.
MedLeader was formed to provide continuing medical education online and through videos for doctors, nurses and other healthcare workers. This subsidiary is not operational at this time.
All significant intercompany accounts and transactions have been eliminated in consolidation.
Note 2 – Accounting Policies
Use of estimates in the preparation of financial statements – In preparing the consolidated financial statements in conformity with accounting principles generally accepted in the United States of America, management makes estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the consolidated financial statements, as well as the reported amounts of revenues and expenses during the reporting period. Significant accounting estimates reflected in the Company’s consolidated financial statements include the allowance for doubtful accounts, estimated useful lives of fixed assets and its salvage values, revenues and costs of sales for turn-key and revenue sharing arrangements, and the carrying value of its Mevion investment. Actual results could differ from those estimates.
Advertising costs – The Company expenses advertising costs as incurred. Advertising costs were $115,000, $155,000, and $119,000 during the years ended December 31, 2015, 2014, and 2013, respectively. Advertising costs are recorded in other direct operating costs and sales and administrative costs in the consolidated statements of operations.
8
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 2 – Accounting Policies (continued)
Cash and cash equivalents – The Company considers all liquid investments with original maturities of three months or less at the date of purchase to be cash equivalents. Restricted cash is not considered a cash equivalent for purposes of the consolidated statements of cash flows.
Restricted cash – Restricted cash represents the minimum cash that must be maintained in GKF to fund operations, per the subsidiary’s operating agreement.
Business and credit risk – The Company maintains its cash balances, which exceed federally insured limits, in financial institutions. Until January 2015, most of the Company’s cash was invested in a certificate of deposit. The Company has not experienced any losses and believes it is not exposed to any significant credit risk on cash, cash equivalents and securities. The Company monitors the financial condition of the financial institutions it uses on a regular basis.
All of the Company’s revenue was provided by seventeen, twenty, and nineteen customers in 2015, 2014, and, 2013, and these customers constitute accounts receivable at December 31, 2015 and 2014, respectively. The Company performs credit evaluations of its customers and generally does not require collateral. The Company has not experienced significant losses related to receivables from individual customers or groups of customers in any particular geographic area.
Accounts receivable and doubtful accounts – Accounts receivable are recorded at net realizable value. An allowance for doubtful accounts is estimated based on historical collections plus an allowance for probable losses. Receivables are considered past due based on contractual terms and are charged off in the period that they are deemed uncollectible. Recoveries of receivables previously charged off are recorded as revenue when received.
Non-controlling interests - The Company reports its non-controlling interests as a separate component of shareholders’ equity. The Company also presents the consolidated net income and the portion of the consolidated net income and other comprehensive income allocable to the non-controlling interests and to the shareholders of the Company separately in its consolidated statements of operations and comprehensive (loss).
Property and equipment – Property and equipment are stated at cost less accumulated depreciation. Depreciation is determined using the straight-line method over the estimated useful lives of the assets, which for medical and office equipment is generally 3 – 10 years, and after accounting for salvage value on the equipment where indicated. Salvage value is based on the estimated fair value of the equipment at the end of its useful life. The Company capitalized interest of $431,000, $371,000, and $390,000 in 2015, 2014, and 2013, respectively, as costs of medical equipment.
The Company capitalizes interest incurred on property and equipment that is under construction, for which deposits or progress payments have been made. When a rate is not readily available, imputed interest is calculated using the Company’s incremental borrowing rate. The interest capitalized for property and equipment is the portion of interest cost incurred during the acquisition periods that could have been avoided if expenditures for the equipment had not been made.
The Company leases Gamma Knife and radiation therapy equipment to its customers under arrangements typically accounted for as operating leases. At December 31, 2015, the Company held equipment under operating lease contracts with customers with an original cost of $83,267,000 and accumulated depreciation of $47,198,000. At December 31, 2014, the Company held equipment under operating lease contracts with customers with an original cost of $82,151,000 and accumulated depreciation of $46,138,000.
Certificate of deposit – As of December 31, 2014, the Company had a $9,000,000 investment in a certificate of deposit with a bank. On January 2, 2015 proceeds from the certificate of deposit were used to pay-off the Company’s line of credit agreement with the same bank who issued the certificate of deposit.
Investment in equity securities – As of December 31, 2015 the Company had common stock representing an approximate 0.46% interest in Mevion Medical Systems, Inc. (“Mevion”), and accounts for this investment under the cost method. The carrying value of the Company’s investment in Mevion was $579,000 and $2,709,000 as of December 31, 2015 and December 31, 2014, respectively. The Company reviews its investment in Mevion for impairment on a quarterly basis, or as events or circumstances might indicate that the carrying value of the investment may not be recoverable. See Note 4 – Investment in Equity Securities for further discussion regarding impairment of the investment.
9
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 2 – Accounting Policies (continued)
Fair value of financial instruments – The Company’s disclosures of the fair value of financial instruments is based on a fair value hierarchy which prioritizes the inputs to the valuation techniques used to measure fair value into three levels. Level 1 inputs are unadjusted quoted market prices in active markets for identical assets and liabilities that the Company has the ability to access at the measurement date. Level 2 inputs are inputs other than quoted prices within Level 1 that are observable for the asset or liability, either directly or indirectly. Level 3 inputs are unobservable inputs for assets or liabilities, and reflect the Company’s own assumptions about the assumptions that market participants would use in pricing the asset or liability.
The estimated fair value of the Company’s assets and liabilities as of December 31, 2015 and December 31, 2014 were as follows (in thousands):
Level 1 | Level 2 | Level 3 | Total |
Carrying
Value |
||||||||||||||||
December 31, 2015 | ||||||||||||||||||||
Assets: | ||||||||||||||||||||
Cash, cash equivalents, restricted cash | $ | 2,259 | $ | - | $ | - | $ | 2,259 | $ | 2,259 | ||||||||||
Investment in equity securities | - | - | 579 | 579 | 579 | |||||||||||||||
Total | $ | 2,259 | $ | - | $ | 579 | $ | 2,838 | $ | 2,838 | ||||||||||
Liabilities | ||||||||||||||||||||
Debt obligations | $ | - | $ | - | $ | 9,744 | $ | 9,744 | $ | 9,597 | ||||||||||
Total | $ | - | $ | - | $ | 9,744 | $ | 9,744 | $ | 9,597 | ||||||||||
December 31, 2014 | ||||||||||||||||||||
Assets: | ||||||||||||||||||||
Cash, cash equivalents, restricted cash | $ | 1,109 | $ | - | $ | - | $ | 1,109 | $ | 1,109 | ||||||||||
Certificate of deposit | 9,000 | - | - | 9,000 | 9,000 | |||||||||||||||
Investment in equity securities | - | - | 330 | 330 | 2,709 | |||||||||||||||
Total | $ | 10,109 | $ | - | $ | 330 | $ | 10,439 | $ | 12,818 | ||||||||||
Liabilities | ||||||||||||||||||||
Advances on line of credit | $ | 8,780 | $ | - | $ | - | $ | 8,780 | $ | 8,780 | ||||||||||
Debt obligations | - | - | 10,658 | * | 10,658 | 10,591 | ||||||||||||||
Total | $ | 8,780 | $ | - | $ | 10,658 | $ | 19,438 | $ | 19,371 |
*Subsequent to the prior year Form 10K filing, management reviewed the inputs to fair value its debt at December 31, 2014 and determined that it misclassified these as Level 2 and the Company has correctly reclassified these as Level 3 at December 31, 2014. The disclosure reclassification adjustment is not material to previously reported consolidated financial statements.
Revenue recognition - Revenue is recognized when services have been rendered and collectability is reasonably assured, on either a fee per use or revenue sharing basis. As of December 31, 2015, there are no guaranteed minimum payments. The Company’s contracts are typically for a ten year term and are classified as either fee per use or retail. Retail arrangements are further classified as either turn-key or revenue sharing.
Revenue from fee per use contracts is determined by each hospital’s contracted rate. Revenue is recognized at the time the procedures are performed, based on each hospital’s contracted rate. Under revenue sharing arrangements, the Company receives a contracted percentage of the reimbursement received by the hospital. The amount the Company expects to receive is recorded as revenue and estimated based on historical experience. Under turn-key arrangements, the Company receives payment from the hospital in the amount of its reimbursement from third party payors, and the Company is responsible for paying all the operating costs of the Gamma Knife. The Company also records an estimate of net operating profit based on estimated revenues, less estimated operating costs. The gross amount the Company expects to receive from the hospital, in the amount of its reimbursement from third party payors, is recorded as revenue and estimated based on historical experience and hospital contracts with third party payors. Revenue estimates are reviewed periodically and adjusted as necessary. The operating costs of the Gamma Knife and estimated net operating profit are recorded as other direct operating costs in the consolidated statement of operations. Revenue recognition is consistent with guidelines provided under the applicable accounting standards for revenue recognition.
10
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 2 – Accounting Policies (continued)
Stock-based compensation – The Company measures all stock-based compensation awards at fair value and records such expense in its consolidated financial statements over the requisite service period of the related award. See Note 9 for additional information on the Company’s stock-based compensation programs.
Costs of revenue – The Company's costs of revenue consist primarily of maintenance and supplies, depreciation and amortization, and other operating expenses (such as insurance, property taxes, sales taxes, marketing costs and operating costs from the Company’s retail sites). Costs of revenues are recognized as incurred.
Sales and Marketing – The Company markets its services through its preferred provider status with Elekta and a direct sales effort led by its Vice President of Sales and Business Development and its Chief Operating Officer. The Company’s current business is the outsourcing of stereotactic radiosurgery services and radiation therapy services. The Company typically provides the equipment, as well as planning, installation, reimbursement and marketing support services.
Income taxes – The Company accounts for income taxes using the asset and liability method. Under this method, deferred tax assets and liabilities are determined based on differences between the financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. See Note 8 for further discussion on income taxes.
Comprehensive (loss) – Comprehensive (loss) encompasses all changes in shareholders’ equity other than those arising from transactions with stockholders, and consists of net loss and foreign currency translation adjustments.
Functional currency – Based on guidance provided in accordance with Accounting Standards Codification (“ASC”) 830, Foreign Currency Matters (“ASC 830”), the Company analyzes its operations outside the United States to determine the functional currency of each operation. Management has determined that these operations are initially accounted for in U.S. dollars since the primary transactions incurred are in U.S. dollars and the Company provides significant funding towards the startup of the operation. When Management determines that an operation has become predominantly self-sufficient, the Company will change its accounting for the operation to the local currency from the U.S. dollar.
Gains and losses from foreign currency transactions and remeasurement are listed in the Company’s consolidated statements of operations. The net foreign currency loss was $0 in 2015, compared to a gain for 2014, prior to the sale of EWRS Turkey, of $161,000, and a loss in 2013 of $1,174,000.
11
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 2 – Accounting Policies (continued)
Cumulative translation adjustment – Based on guidance provided in accordance with Accounting Standards Update (“ASU”) No 2013-05 Parent’s Accounting for the Cumulative Translation Adjustment upon Derecognition of Certain Subsidiaries of Groups of Assets within a Foreign Entity or of an Investment in a Foreign Entity (“ASU 2013-05”), the Company no longer holds a financial interest in EWRS Turkey. As such, the cumulative translation adjustments previously recognized under accumulated other comprehensive (loss) were released into net income as a component of the loss for the sale of EWRS Turkey in the statement of operations. The total cumulative translation adjustment of $779,000, previously recognized under accumulated other comprehensive income (loss), was included as a component of the loss calculation for the sale of EWRS Turkey, reported in the statement of operations for the year ended 2014.
Discontinued Operations – Based on guidance provided in accordance with ASU No. 2014-08 Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity (“ASU 2014-08”), the Company has analyzed the factors that define a discontinued operation and determined that the sale of EWRS Turkey is considered the sale of a significant component, but does not represent a major shift in the business, and therefore is not a discontinued operation.
Effective May 31, 2014 (with closing occurring June 10, 2014) the Company sold EWRS Turkey for EUR 4.2 million (approximately $6.0M). The proceeds were used to reduce outstanding debt and the excess was cash to the Company of $768,000. The Company recorded a loss on sale of subsidiary of $572,000. The Company was also eligible for an earn-out in fiscal years 2014 and 2015 based on future revenue derived from the units sold to Euromedic. The Company did not meet its earn-out milestone for 2014 or 2015.
Earnings per share – Basic earnings per share excludes dilution and is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the year. The fully vested restricted stock units not issued and outstanding, are also included therein. Diluted earnings per share reflect the potential dilution that could occur if common shares were issued pursuant to the exercise of options or warrants. The following table illustrates the computations of basic and diluted earnings per share for the years ended December 31, 2015, 2014, and 2013.
2015 | 2014 | 2013 | ||||||||||
Numerator for basic and diluted (loss) earnings per share | $ | (1,522,000 | ) | $ | (952,000 | ) | $ | (312,000 | ) | |||
Denominator: | ||||||||||||
Denominator for basic and diluted (loss) earnings per share – weighted-average shares | 5,519,000 | 5,028,000 | 4,608,000 | |||||||||
(Loss) earnings per common share – basic and diluted | $ | (0.28 | ) | $ | (0.19 | ) | $ | (0.07 | ) |
In 2015, options outstanding to purchase 614,000 shares of common stock at an exercise price range of $2.05 - $3.15 per share, and warrants to purchase 200,000 shares of common stock, issued with promissory notes, at an exercise price of $2.20, were not included in the calculation of diluted earnings per share because they would be anti-dilutive.
In 2014, options outstanding to purchase 633,000 shares of common stock at an exercise price range of $2.43 - $6.16 per share, and warrants to purchase 200,000 shares of common stock, issued with promissory notes, at an exercise price of $2.20, were not included in the calculation of diluted earnings per share because they would be anti-dilutive.
12
American Shared Hospital Services
Notes to Consolidated Financial Statements
Note 2 – Accounting Policies (continued)
In 2013, options outstanding to purchase 576,000 shares of common stock at an exercise price range of $2.30 - $6.50 per share were not included in the calculation of diluted earnings per share because they would be anti-dilutive.
Business segment information - Based on the guidance provided in accordance with ASC 280 Segment Reporting (“ASC 280”), the Company has analyzed its subsidiaries which are all in the business of leasing radiosurgery and radiation therapy equipment to health care providers, and concluded there is one reportable segment, Medical Services Revenue. The Company provides Gamma Knife and IGRT equipment to seventeen hospitals in the United States as of December 31, 2015. These seventeen locations operate under different subsidiaries of the Company, but offer the same service, radiosurgery and radiation therapy. The operating results of the subsidiaries are reviewed by the Company’s Chief Executive Officer and Chief Financial Officer, who are also deemed the Company’s Chief Operating Decision Makers (“CODMs”) and this is done in conjunction with all of the subsidiaries and locations.
The Company did not have any international operations as of December 31, 2015, but the Company’s unit in Peru is expected to being operations in 2016 and is reflected in the property and equipment table below for 2015.
The following table provides a break out of domestic and foreign allocations of medical services revenues and net property and equipment:
2015 | 2014 | 2013 | ||||||||||
Medical services revenues | ||||||||||||
Domestic | 100 | % | 97 | % | 91 | % | ||||||
Foreign | 0 | % | 3 | % | 9 | % | ||||||
Total | 100 | % | 100 | % | 100 | % |
2015 | 2014 | 2013 | ||||||||||
Property and equipment, net | ||||||||||||
Domestic | 93 | % | 94 | % | 84 | % | ||||||
Foreign | 7 | % | 6 | % | 16 | % | ||||||
Total | 100 | % | 100 | % | 100 | % |
Nonmonetary transactions – Based on guidance provided in accordance with ASC No. 845 Nonmonetary Transactions (“ASC 845”), barter transactions with commercial substance are recorded at the estimated fair value of the products exchanged, unless the products received have a more readily determinable estimated fair value. The Company entered into a lease agreement in December 2014 where the lessee exchanged certain medical services equipment for a nominal amount and more beneficial contract terms related to the revenue sharing arrangement. The Company estimated and recorded the fair value of the equipment received and recognized deferred revenue. The fair value of the equipment received during the year ended December 31, 2014 was $700,000.
Long lived asset impairment – The Company assesses the recoverability of its long-lived assets when events or changes in circumstances indicate their carrying value may not be recoverable. Such events or changes in circumstances may include: a significant adverse change in the extent or manner in which a long-lived asset is being used, significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset, an accumulation of costs significantly in excess of the amount originally expected for the acquisition or development of a long-lived asset, current or future operating or cash flow losses that demonstrate continuing losses associated with the use of a long-lived asset, or a current expectation that, more likely than not, a long-lived asset will be sold or otherwise disposed of significantly before the end of its previously estimated useful life. The Company performs impairment testing at the asset group level that represents the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. The Company assesses recoverability of a long-lived asset by determining whether the carrying value of the asset group can be recovered through projected undiscounted cash flows over their remaining lives. If the carrying value of the asset group exceeds the forecasted undiscounted cash flows, an impairment loss is recognized, measured as the amount by which the carrying amount exceeds estimated fair value. An impairment loss is charged to the consolidated statement of operations in the period in which management determines such impairment. No such impairment has been noted as of December 31, 2015 and 2014.
Out-of-Period Adjustment: During the fourth quarter of 2014, the Company reclassified $400,000 to non-controlling interests and $235,000 to additional paid-in capital that were incorrectly classified as liabilities. The corrections were not material to any previously reported financial periods or to the year ended December 31, 2014.
13
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 2 – Accounting Policies (continued)
Recently issued accounting pronouncements – In January 2015, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2015-01, Income Statement - Extraordinary and Unusual Items (Subtopic 225-20): Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items (“ASU No. 2015-01”), which eliminates from United States Generally Accepted Accounting Principles (“GAAP”) the concept of extraordinary items and requires that an entity separately classify, present, and disclose extraordinary events and transactions. This ASU will also align more closely GAAP income statement presentation guidance with International Accounting Standards (“IAS”) 1, Presentation of Financial Statements, which prohibits the presentation and disclosure of extraordinary items. The new standard is effective for the Company on January 1, 2016. Early application is permitted. The standard permits the use of either the retrospective or prospective application. The Company is evaluating the effect that ASU 2015-01 will have on its consolidated financial statements and related disclosures and has not yet selected a transition method.
In February 2015, the FASB issued ASU No. 2015-02, Consolidation (Topic 810): Amendments to the Consolidation Analysis (“ASU No. 2015-02”), which is intended to improve targeted areas of consolidation guidance for legal entities. The ASU focuses on the consolidation evaluation for reporting organizations that are required to evaluate whether they should consolidate certain legal entities. In addition to reducing the number of consolidation models from four to two, the new standard simplifies the FASB ASC and improves current GAAP. The new standard is effective for the Company on January 1, 2016. Early adoption is permitted. The Company has evaluated the effect that ASU 2015-02 will have on its consolidated financial statements and related disclosures and determined the impact is not material.
In April 2015, the FASB issued ASU No. 2015-03, Interest — Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Costs (“ASU 2015-03”), which requires that debt issuance costs related to a recognized debt liability, be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The recognition and measurement guidance for debt issuance costs are not affected by the amendments in this ASU. The new standard is effective for the Company on January 1, 2016. Early adoption is permitted. The amendments should be applied on a retrospective basis, wherein the balance sheet of each individual period presented should be adjusted to reflect the period-specific effects of applying the new guidance. The Company has evaluated the effect that ASU 2015-03 will have on its consolidated financial statements and related disclosures and determined the impact is not material.
In November 2015, the FASB issued ASU No. 2015-17 Income Taxes - Balance Sheet Classification of Deferred Taxes (“ASU 2015-17”), as part of its Simplification Initiative. The amendments eliminate the guidance in ASC 740 Income Taxes, that required an entity to separate deferred tax liabilities and assets between current and noncurrent amounts in a classified balance sheet. Rather, deferred taxes will be presented as noncurrent under the new standard. The new guidance is effective for the Company in 2017. The standard permits the use of either retrospective or prospective application. Early adoption is permitted, including for December 31, 2015 year-end financial statements. The Company has elected to early adopt as of December 31, 2015, on a prospective basis, with respect to balance sheet classification, and the impact was a reclassification of $367,000 of current deferred tax assets to non-current deferred tax liabilities at December 31, 2015.
In January 2016, the FASB issued ASU No. 2016-01 Recognition and Measurement of Financial Assets and Financial Liabilities (“ASU 2016-01”) which requires equity investments, except those accounted for under the equity method of accounting or those that result in consolidation of the investee, to be measured at fair value with changes in fair value recognized in net income. The new guidance is effective for the Company on January 1, 2018. Early adoption is permitted. The standard permits the use of cumulative-effect transition method. The Company is evaluating the effect that ASU 2016-01 will have on its consolidated financial statements and related disclosures.
In February 2016, the FASB issued ASU No. 2016-02 Leases (“ASU 2016-02”), which requires lessees to recognize, for all leases, at the commencement date, a lease liability and a right-of-use asset. Under the new guidance, lessor accounting is largely unchanged. The new guidance is effective for the Company on January 1, 2019. Early adoption is permitted. The Company is evaluating the effect that ASU No. 2016-02 will have on its consolidated financial statements and related disclosures.
In August 2014, the Financial Accounting Standards Board “(FASB”) issued ASU 2014-15, Disclosure of Uncertainties About an Entity’s Ability to Continue as a Going Concern (“ASU 2014-15”), which provides guidance on determine when and how to disclose going-concern uncertainties in financial statements. The new standard requires management to perform interim and annual assessments of an entity’s ability to continue as a going concern within one year of the date the financial statements are issued. An entity must provide certain disclosures if conditions or events raise substantial doubt about the entity’s ability to continue as a going concern. ASU 2014-15 applies to all entities and is effective for annual periods ending after December 15, 2016, and interim periods thereafter, with early adoption permitted. The Company is currently evaluating the impact of this update on future disclosures concerning its liquidity position.
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606), ("ASU 2014-09"), which requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. The ASU will replace most existing revenue recognition guidance in GAAP when it becomes effective. The new standard is effective for the Company on January 1, 2017. Early application is not permitted. The standard permits the use of either the retrospective or cumulative effect transition method. In July 2015, the FASB voted to delay the effective date of this standard until the first quarter of 2018. The Company is evaluating the effect that ASU 2014-09 will have on its consolidated financial statements and related disclosures and has not yet selected a transition method.
14
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 3 – Property and Equipment
Property and equipment consists of the following:
DECEMBER 31, | ||||||||
2015 | 2014 | |||||||
Medical equipment and facilities | $ | 83,267,000 | $ | 82,151,000 | ||||
Office equipment | 721,000 | 721,000 | ||||||
Deposits and construction in progress | 5,796,000 | 8,736,000 | ||||||
Deposits towards purchase of proton beam systems | 5,000,000 | 5,000,000 | ||||||
94,784,000 | 96,608,000 | |||||||
Accumulated depreciation | (47,661,000 | ) | (46,572,000 | ) | ||||
Net property and equipment | $ | 47,123,000 | $ | 50,036,000 |
The Company has equipment that is secured under capitalized leases, which is included in Medical equipment and facilities, with a total cost of $31,025,000 and associated accumulated depreciation of $13,417,000 as of December 31, 2015 and a total cost of $29,548,000 and associated accumulated depreciation of $11,269,000 as of December 31, 2014. As of December 31, 2015, the Company has two idle Gamma Knife units with a cumulative net book value of $1,500,000. The Company plans to trade these units in for new units or place these units at new sites.
As of December 31, 2015, the Company has $5,796,000 in construction in progress. Approximately $3,300,000 of this balance relates to the Company’s unit in Peru which has been under construction and is expected to be installed at a new customer site in 2016. The remaining construction in progress consists of deposits on Gamma Knife units, capitalized and imputed interest, and other costs associated with on-going projects of the Company.
As of December 31, 2015, the Company has $5,000,000 in deposits toward the purchase of three MEVION S250 proton beam radiation therapy (“PBRT”) systems from Mevion. The Company has a commitment for the remaining balance for each system. The Company’s first synchrocyclotron (a major component of the MEVION S250 system) was delivered to UF Health Cancer Center at Orlando Health in late 2014. During 2015, the MEVION S250 synchrocyclotron was installed and tested and it is expected that the first patient will be treated in the second quarter 2016. The Company’s second and third PBRT units will not begin construction until the Company identifies satisfactory placement sites. The Company has entered into a partnership agreement (LBE) with a radiation oncology physician group, which has contributed $400,000 towards the deposits on the third machine. The Company reviews the carrying value of these deposits for impairment on a quarterly basis, or as events or circumstances might indicate that the carrying value may not be recoverable. The Company has reviewed the deposits, in light of available information, as of December 31, 2015 and has not identified any impairment. See Note 12-Commitments and Contingencies for additional discussion on purchase commitments.
Note 4 – Investment in Equity Securities
The Company has previously participated in several Mevion rounds of financing and has carried its investment at cost. The Company reviews this investment on a quarterly basis for impairment in light of the length of time and extent to which market value has been below cost, the financial condition and near term prospects of Mevion, current market conditions and events, and our ability and intent to retain our investment for a period sufficient to allow for an anticipated recovery in the market value, or as events or circumstances might indicate that the carrying value of the investment may be below its cost basis on an other-than-temporary impairment basis. The Company evaluated its common stock investment in Mevion of $2,709,000, for impairment at December 31, 2014, and in light of available information, determined that impairment was not other-than temporary.
On July 27, 2015 Mevion cancelled its planned initial public offering (“IPO”) and subsequently announced on August 4, 2015 that it had entered into an investment agreement where up to $200 million will be invested by HOPU Investments, YuanMing Capital and existing U.S. investors. Concurrent with this investment, Mevion and the lead investors intend to form a joint venture to produce, sell, and service proton therapy systems for the Chinese market. The Company’s investment in the common stock of Mevion represents an approximate 0.46% interest following this latest private placement transaction on a fully diluted basis.
15
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 4 – Investment in Equity Securities (continued)
In light of the cancellation of Mevion’s IPO, the Company reviewed its investment in Mevion for impairment. The company determined that its investment was other than temporarily impaired and recognized an impairment loss of $2,114,000 at June 30, 2015. In determining the fair value of the Company’s common stock in Mevion, the Company engaged a third party expert to review and corroborate its assessment of the fair value of the investment. The third party utilized the market approach and an option waterfall model calibrated to Mevion’s last round of funding. Each equity class was examined and priced according to its liquidation preferences. Based on the third party analysis, an additional impairment loss of $26,000 was recognized by the Company during the three months ended December 31, 2015. The fair value of the Company’s investment in Mevion, as of December 31, 2015, is approximately $579,000 with an impairment loss for the year then ended of $2,140,000.
The $2,140,000 other than temporary impairment of its investment in Mevion is recorded in other income (loss) on the Company’s Condensed Consolidated Statement of Operations. This transaction is treated as a capital loss for tax purposes which may be deducted only to the extent the Company has capital gains. The Company is not aware of any event or transaction planned where the Company would generate a capital gain. Therefore, a full valuation allowance was recorded against the income tax benefit from the impairment loss, and the net impact to the income tax provision for the year ended December 31, 2015 was $0.
The first MEVION S250, located at Barnes-Jewish Hospital in St. Louis, MO (“Barnes-Jewish Hospital”), treated its first patient on December 19, 2013. The second MEVION S250, located at the Ackerman Cancer Center in Jacksonville, Florida (“Ackerman Cancer Center”), treated its first patient in April 2015. The third MEVION S250, located at Robert Wood Johnson University Hospital in New Brunswick, New Jersey (“Robert Wood Johnson”), started in May 2015. The Company’s first synchrocyclotron was delivered to UF Health Cancer Center at Orlando Health in November 2014 and is expected to begin treating patients in second quarter 2016.
Note 5 – Long-Term Debt
Long-term debt consists primarily of seven notes with financing companies collateralized by the Gamma Knife equipment having an aggregate net book value of $8,597,000, the individual customer contracts and related accounts receivable at December 31, 2015. In addition, the loan to finance the Company’s unit in Peru is guaranteed by GKF and collateralized by the Company’s stock in the subsidiary, IGKP. These notes are payable in 12 to 84 fully amortizing monthly installments, mature between May 2016 and December 2020, and are collateralized by the respective Gamma Knife units. The notes accrue interest at fixed annual rates between 3.95% and 10.01%.
Long term debt as of December 31, 2015 and 2014 also includes $1,000,000 in promissory notes funded by four members of the Company’s Board of Directors. The promissory notes were issued with common stock warrants. The fair value of the warrants was estimated at $145,000 and were reported as capital contributed. As of December 31, 2015 the amount of the unamortized debt discount that is short and long term is $48,000 and $37,000, respectively. The promissory notes are reported net of the amount allocated to the warrants, or debt discount, which is amortized over the term of the obligation. See Note 13-Note, Warrant, & Common Stock Purchase Agreement for additional discussion on promissory notes and warrants with the Board.
As of December 31, 2014 long-term debt consisted of eight notes totaling $9,724,000 and $1,000,000 in promissory notes funded by four members of the Company’s Board of Directors.
The following are contractual maturities of long-term debt by year at December 31, 2015:
Year ending December 31, | Principal | Interest | ||||||
2016 | $ | 2,674,000 | $ | 585,000 | ||||
2017 | 2,893,000 | 430,000 | ||||||
2018 | 1,823,000 | 191,000 | ||||||
2019 | 1,185,000 | 101,000 | ||||||
2020 | 593,000 | 45,000 | ||||||
Thereafter | 429,000 | 14,000 | ||||||
$ | 9,597,000 | $ | 1,366,000 |
16
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 6 – Obligations Under Capital Leases
The Company has eleven capital lease obligations with four financing companies, collateralized by Gamma Knife equipment having an aggregate net book value of $17,608,000, the individual customer contracts and related accounts receivable at December 31, 2015. These obligations have stated interest rates ranging between 5.00% and 10.36%, are payable in 36 to 89 monthly installments, and mature between June 2017 and June 2020. As of December 31, 2014, the Company had ten capital lease obligations with four finance companies with an aggregate net book value of $18,279,000. At the end of each lease term, the Company has a bargain purchase option to purchase the equipment.
Future minimum lease payments, together with the present value of the net minimum lease payments under capital leases at December 31, 2015, are summarized as follows:
Net Present Value | ||||
of Minimum | ||||
Lease Payments | ||||
Year ending December 31, | ||||
2016 | $ | 5,080,000 | ||
2017 | 4,621,000 | |||
2018 | 3,051,000 | |||
2019 | 1,739,000 | |||
2020 | 501,000 | |||
Thereafter | - | |||
Total capital lease payments | 14,992,000 | |||
Less imputed interest | 1,471,000 | |||
13,521,000 | ||||
Less current portion | 4,331,000 | |||
$ | 9,190,000 |
Note 7 – Line of Credit
As of December 31, 2014 the Company had a $9,000,000 renewable line of credit with a bank secured by a certificate of deposit. The line of credit had been in place since June 2004. The Company’s earnings in 2013 were insufficient to satisfy the “profitability” covenant in the line of credit and the Company was not in compliance with the covenant until the bank waived this default on August 8, 2014 and agreed to change the maturity date of the facility to December 31, 2014. The line was paid-off using the proceeds from the certificate of deposit on January 2, 2015.
Borrowing under the line of credit was subject to interest expense at a rate equal to the bank’s prime rate minus 0.5 percentage point, or alternatively at the Company’s discretion, the LIBOR rate plus 1.0 percentage point. The weighted average interest rate on money borrowed against the line of credit during 2014 was 1.40%. As of December 31, 2014, there was $8,780,000 borrowed against the line of credit.
Note 8 – Income Taxes
As of December 31, 2015, 2014 and 2013 the Company recorded income tax provision expense of $434,000, $129,000 and $84,000, respectively. The increase in 2015 is due to income from operations of the Company’s subsidiaries. The loss incurred on the write-down of the Company’s investment in equity securities is a capital loss which is treated as non-deducible expense for income tax provision purposes and as such, a full valuation allowance was recorded against this loss and the net impact to the provision was $0. The increase in 2014 compared to 2013 is due to income from operations of the Company’s subsidiaries.
The components of the provision for income taxes as of December 31, 2015, 2014 and 2013 consist of the following:
YEARS ENDED DECEMBER 31, | ||||||||||||
2015 | 2014 | 2013 | ||||||||||
Current: | ||||||||||||
Federal | $ | 35,000 | $ | - | $ | - | ||||||
State | 103,000 | 54,000 | 23,000 | |||||||||
Foreign | - | - | - | |||||||||
Total current | 138,000 | 54,000 | 23,000 | |||||||||
Deferred: | ||||||||||||
Federal | 353,000 | (131,000 | ) | 184,000 | ||||||||
State | (57,000 | ) | 40,000 | 12,000 | ||||||||
Foreign | - | 166,000 | (135,000 | ) | ||||||||
Total deferred | 296,000 | 75,000 | 61,000 | |||||||||
$ | 434,000 | $ | 129,000 | $ | 84,000 |
17
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 8 – Income Taxes (continued)
Significant components of the Company’s deferred tax liabilities and assets as of December 31, 2015 and 2014 are as follows:
DECEMBER 31, | ||||||||
2015 | 2014 | |||||||
Deferred tax liabilities: | ||||||||
Property and equipment | $ | (6,831,000 | ) | $ | (7,145,000 | ) | ||
Total deferred tax liabilities | (6,831,000 | ) | (7,145,000 | ) | ||||
Deferred tax assets: | ||||||||
Net operating loss carryforwards | 2,859,000 | 3,424,000 | ||||||
Accruals and allowances | 172,000 | 173,000 | ||||||
Tax credits | 356,000 | 319,000 | ||||||
Other – net | 163,000 | 235,000 | ||||||
Capital loss carryover | 1,217,000 | 437,000 | ||||||
Total deferred tax assets | 4,767,000 | 4,588,000 | ||||||
Valuation allowance | (1,340,000 | ) | (549,000 | ) | ||||
Deferred tax assets net of valuation allowance | 3,427,000 | 4,039,000 | ||||||
Net deferred tax liabilities | $ | (3,404,000 | ) | $ | (3,106,000 | ) |
These amounts are presented in the financial statements as follows:
DECEMBER 31, | ||||||||
2015 | 2014 | |||||||
Current deferred tax assets | $ | - | $ | 367,000 | ||||
Deferred income taxes (non-current) | (3,404,000 | ) | (3,473,000 | ) | ||||
$ | (3,404,000 | ) | $ | (3,106,000 | ) |
The provision for income taxes differs from the amount computed by applying the U.S. federal statutory tax rate (34% in 2015, 2014 and 2013) to income before taxes as follows:
YEARS ENDED DECEMBER 31, | ||||||||||||
2015 | 2014 | 2013 | ||||||||||
Computed expected federal income tax | $ | (360,000 | ) | $ | (280,000 | ) | $ | (92,000 | ) | |||
State income taxes, net of federal benefit | (55,000 | ) | 66,000 | 120,000 | ||||||||
Non-deductible expenses | 40,000 | 21,000 | 28,000 | |||||||||
Change in valuation allowance | 792,000 | 416,000 | (68,000 | ) | ||||||||
Other | 17,000 | (94,000 | ) | 96,000 | ||||||||
$ | 434,000 | $ | 129,000 | $ | 84,000 |
18
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 8 – Income Taxes (continued)
At December 31, 2015, the Company has a net operating loss carryforward for federal income tax return purposes of approximately $7,872,000 which expire between 2021 and 2034. The Company has net operating loss carryforwards for state income tax purposes of approximately $1,057,000 that begin to expire in 2017. The Company has net operating loss carryforwards for Peru and UK income tax purposes of approximately $453,000 that begin to expire in 2017.
At December 31, 2015, the Company has a capital loss carryforward for federal income tax return purposes of approximately $1,176,000 which starts to expire in 2018. The Company has capital loss carryforwards for state income tax purposes of approximately $150,000 which expires in 2018.
The Company’s ability to utilize its net operating loss carryforwards and other deferred tax assets may be limited in the event of a 50% or more ownership change within any three-year period.
The tax return years 2011 through 2015 remain open to examination by the major domestic taxing jurisdictions to which the Company is subject. Net operating losses generated on a tax return basis by the Company for calendar years 1999 through 2004, 2009, 2010, 2012, 2014, and 2015 remain open to examination by the major domestic taxing jurisdictions.
Due to uncertainty surrounding the realization of impairment losses, capital losses and foreign operating losses in future years, the Company has placed a valuation allowance against a portion of its net domestic and foreign deferred tax assets. The net valuation allowance increased by $792,000, increased by $416,000, and decreased by $68,000 for the tax years ended December 31, 2015, 2014, and 2013, respectively.
The Company has adopted accounting standards which prescribe a recognition threshold and measurement attribute for the financial statement recognition and measurement of uncertain tax positions taken or expected to be taken in a company’s income tax return, and also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. Additionally, these accounting standards specify that tax positions for which the timing of the ultimate resolution is uncertain should be recognized as long-term liabilities. The Company has made no reclassifications between current taxes payable and long term taxes payable under this guidance. Also, the Company had no amounts of unrecognized tax benefits that, if recognized, would affect its effective income tax rate for the years ended December 31, 2015, 2014 and 2013.
The Company’s policy for deducting interest and penalties is to treat interest as interest expense and penalties as taxes. As of December 31, 2015, the Company had no amount accrued for the payment of interest and penalties related to unrecognized tax benefits.
19
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 9 – Shareholders’ Equity
Incentive Compensation Plan
In June 2010 shareholders approved an amendment and restatement of the Company’s stock incentive plan, renaming it the Incentive Compensation Plan (the “Plan”), and among other things, increasing the number of shares of the Company’s common stock reserved for issuance under the Plan to 1,630,000. The Plan provides that the shares reserved under the Plan are available for issuance to officers of the Company, other key employees, non-employee directors, and advisors. The Plan is a successor to the Company’s previous plans, and any shares awarded and outstanding under those plans were transferred to the Plan. No further grants or share issuances will be made under the previous plans. On June 16, 2015, the Company’s shareholders approved an amendment and restatement of the Plan in order to extend the term of the Plan by two years. As of December 31, 2015, approximately 734,000 shares remain available for grant under the Plan.
The Plan provides for nonqualified stock options, qualified (or incentive) stock options and stock grants. The Plan has a provision to reduce the number of shares reserved for award and issuance under the Plan by a ratio of 1.59 shares of common stock for each share of common stock that is issued pursuant to a Full Value Award (stock grant).
The Plan also provides for an Incentive Bonus Program with incentive bonus opportunities through performance unit awards and special cash incentive programs tied to the attainment of pre-established performance milestones.
Provisions of the Plan include an automatic annual grant to each non-employee director of options to purchase up to 2,000 shares on the date of the Company’s Annual Shareholder Meeting, at an exercise price equal to the market price of the Company’s common shares on that date, an automatic annual grant of 500 restricted stock units of the Company’s common shares and an annual cash retainer fee for Board or Board Committee service, which may be converted to restricted stock unit awards. Options and restricted stock units awarded under the automatic annual grant program for non-employee directors vest after one year. Restricted stock units awarded in lieu of retainer fees vest quarterly, over a one year period. These awards become outstanding upon the conclusion of the individual Board members service on the Company’s Board of Directors. Other options may vest fully and immediately, or over periods of time as determined by the Plan Administrator, but no longer than seven years from the grant date. Discretionary options currently awarded under the Plan vest over a period of 5 years.
Under the Plan, a total of 179,000 restricted stock units have been granted, consisting of 26,000 of annual automatic grants to non-employee directors and the corporate secretary, 143,000 of deferred retainer fees to non-employee members of the Board, and 10,000 grants issued in lieu of commission, to one employee of the Company. Of the total restricted stock units granted under the Plan 176,000 of them are fully vested but not yet deemed issued and outstanding as of December 31, 2015. The Company granted 3,000 shares of restricted stock and 28,000 shares of restricted stock in lieu of retainer fees in 2015 with a fair value of $2.90 per share. For the year ended December 31, 2015, total compensation expense recorded in the consolidated statements of operations related to restricted stock units in lieu of retainer fees was $80,000. For the year ended December 31, 2015, total compensation expense recorded in the consolidated statements of income for annual restricted stock units awarded was $8,000, with an offsetting tax benefit of $3,000, as this expense is deductible for income tax purposes. As of December 31, 2015, there was $4,000 of total unrecognized compensation cost related to annual restricted stock units which is expected to be recognized over a period of .5 years. During 2015, 2014, and 2013 shares of restricted stock units totaling 3,000 each year, with a fair value of approximately $7,000, $6,000 and $9,000, respectively, vested and became unrestricted.
20
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 9 – Shareholders’ Equity (continued)
Changes in stock options outstanding under the Incentive Compensation Plans during 2015 are as follows :
Weighted | ||||||||||||||||
Weighted | Average | |||||||||||||||
Average | Remaining | Aggregate | ||||||||||||||
Number | Exercise | Contractual | Intrinsic | |||||||||||||
Options | of Options | Price | Term (Years) | Value | ||||||||||||
Balance at December 31, 2014 | 659,000 | $ | 3.13 | 5.57 | ||||||||||||
Granted | 20,000 | $ | 2.48 | |||||||||||||
Exercised | (2,000 | ) | $ | 2.30 | ||||||||||||
Forfeited | (63,000 | ) | $ | 5.54 | ||||||||||||
Balance at December 31, 2015 | 614,000 | $ | 2.86 | 5.10 | $ | - | ||||||||||
Exercisable at December 31, 2015 | 82,000 | $ | 2.74 | 2.74 | $ | - |
The weighted average grant-date fair value of the options granted during the years 2015, 2014 and 2013 was $1.15, $1.23, and $1.28 respectively. There was no total intrinsic value of options exercised during any of the years ended December 31, 2014 and 2013 and 2012.
There was no cash received from options exercised under any share-based payment arrangements for the years ended December 31, 2015, 2014 and 2013, and as a result, there was no actual tax benefit realized for tax deductions from option exercises in any of those years.
Total stock-based compensation expense recognized for stock options for the years ended December 2015, 2014, and 2013 was $138,000, $51,000, and $88,000, respectively.
A summary of the status of the Company’s non-vested stock options as of December 31, 2015, and changes during the year ended December 31, 2015 is presented below:
Weighted | ||||||||
Average | ||||||||
Number | Grant-Date | |||||||
Nonvested Options | of Options | Fair Value | ||||||
Nonvested at December 31, 2014 | 536,000 | $ | 1.23 | |||||
Granted | 20,000 | $ | 1.15 | |||||
Vested | (15,000 | ) | $ | 1.10 | ||||
Forfeited | (9,000 | ) | $ | 1.23 | ||||
Nonvested at December 31, 2015 | 532,000 | $ | 1.18 |
21
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 9 – Shareholders’ Equity (continued)
At December 31, 2015, there was approximately $479,000 of unrecognized compensation cost related to non-vested share-based compensation arrangements granted under the Plan. This cost is expected to be recognized over a period of approximately four years.
The Company’s stock-based awards to employees are calculated using the Black-Scholes options valuation model. The Black-Scholes model was developed for use in estimating the fair value of traded options which have no vesting restrictions and are fully transferable. In addition, the Black-Scholes model requires the input of highly subjective assumptions including the expected stock price volatility. The Company’s stock-based awards have characteristics significantly different from those of traded options, and changes in the subjective input assumptions can materially affect the present value estimates. For these reasons, management believes that the existing models do not necessarily provide a reliable single measure of the fair value of its stock-based awards to employees.
The fair value of the Company’s option grants issued during 2015, 2014 and 2013 were estimated using assumptions for expected life, volatility, dividend yield, forfeiture rate, and risk-free interest rate which are specific to each award as summarized in the following table. The estimated fair value of the Company’s options is amortized over the period during which the optionee is required to provide service in exchange for the award, usually the vesting period.
The fair value of the Company’s option grants under the Plan in 2015, 2014 and 2013 was estimated using the following assumptions:
Repurchase of Common Stock, Common Stock Warrants and Stock Options
In 1999 and 2001, the Board of Directors approved resolutions authorizing the Company to repurchase up to a total of 1,000,000 shares of its own stock on the open market, which the Board reaffirmed in 2008. There were no shares of the Company repurchased during 2015. During 2014, the Company repurchased approximately 1,000 shares of its stock on the open market. There were no shares of the Company repurchased during 2013. There are approximately 72,000 shares remaining under this repurchase authorization.
Note 10 – Retirement Plan
The Company has a defined-contribution retirement plan (the “Retirement Plan”) that allows for a matching safe harbor contribution. For 2015, the Board of Directors elected to match participant deferred salary contributions up to a maximum of 4% of the participant’s annual compensation. Discretionary profit sharing contributions are allowed under the Retirement Plan in years that the Board does not elect a safe harbor match. The Company has accrued approximately $27,000 for the estimated safe harbor matching contribution for the year ended December 31, 2015. The Company contributed $39,000 and $41,000 to the Retirement Plan for the safe harbor match for the years ended December 31, 2014 and December 31, 2013, respectively.
22
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 11 – Operating Leases
The Company leases office space and equipment under operating leases expiring at various dates through 2016 and 2018. The Company is in the process of procuring new office space and there will be future rent expense associated with this space. Future minimum payments under non-cancelable operating leases, net of expected sublease income, having initial terms of more than one year consisted of the following:
Year ending December 31, | ||||
2016 | $ | 96,000 | ||
2017 | 30,000 | |||
2018 | 32,000 | |||
Thereafter | - | |||
$ | 158,000 |
Payments for repair and maintenance agreements incorporated in operating lease agreements are not included in the future minimum operating lease payments shown above.
Net rent expense was $295,000, $301,000, and $549,000 for the years ended December 31, 2015, 2014 and 2013, respectively, and includes the above operating leases as well as month-to-month rental and certain executory costs. Total rent expense was recognized net of sublease income of $191,000, $173,000, and $116,000 for the years ended December 31, 2015, 2014 and 2013. In 2013, the Company subleased a portion of its existing office space through the remainder of its lease term at a rate lower than its lease rate, resulting in a cumulative loss of $115,000. This loss will be amortized against total rent expense over the term of the sublease and it is included in total rent expense for 2015.
Note 12 – Commitments and Contingencies
As of December 31, 2015, the Company has commitments to purchase three MEVION S250 PBRT systems for $34,200,000. The Company has $5,000,000 in non-refundable deposits toward the purchase of these three PBRT systems from Mevion. The non-refundable deposits are recorded in the Consolidated Balance Sheets as deposits and construction in progress. The Company’s first synchrocyclotron was delivered to UF Health Cancer Center at Orlando Health in late 2014. During 2015, the synchrocyclotron was installed and tested and it is expected that the first patient will be treated in second quarter 2016. The Company’s second and third PBRT units will not begin construction until the Company identifies satisfactory placement sites. There is a cash payment of approximately $6,700,000 due in January 2016 for the first PBRT system. In January 2016, the Company secured lease financing of approximately $8,400,000 and payment of $6,700,000 was remitted to Mevion. The financing company also reimbursed the Company approximately $1,100,000 in previously remitted progress payments to Mevion and freight costs. An additional payment of approximately $600,000 is due to Mevion in two installments during 2016 which will be paid using the remaining proceeds from the January 2016 lease financing.
The remaining two PBRT projects do not have anticipated delivery dates. The timing of progress payments for PBRT contracts two and three are dependent upon future events and the Company has some flexibility to delay the due dates of these commitments. Approximately $25,800,000 of these commitments are not expected to start becoming due until 2017 or later and the Company is in discussions with lenders to finance the remaining two proton systems. There are no cash requirements for these commitments in the next 12 months.
As of December 31, 2015, the Company has commitments to purchase one Gamma Knife Perfexion system, one Cobtalt-60 reload, and is scheduled to install one Gamma Knife Model 4C system, which the Company previously financed and owns. Total Gamma Knife commitments as of December 31, 2015 are $3,650,000. The Model 4C unit is scheduled to be installed in mid-2016 at the Company’s new customer site in Peru. There are cash requirements for the Peru commitment in the next 12 months of approximately $600,000. The Company believes that cash flow from cash on hand and operations will be sufficient to cover this payment. The Perfexion unit is for a site yet to be determined and it is the Company’s intent to finance this unit. The Cobalt-60 reload is for an existing site and it is the Company’s intent to finance this reload. There can be no assurance that financing will be available for the Company’s current or future projects, or at terms that are acceptable to the Company.
23
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 12 – Commitments and Contingencies (continued)
The Company estimates the following commitments for each of the equipment systems, with expected timing of payments as follows as of December 31, 2015:
2016 | Thereafter | Total | ||||||||||
Proton Beam Unit | $ | 8,400,000 | $ | 25,800,000 | $ | 34,200,000 | ||||||
Gamma Knife Units | 3,650,000 | - | 3,650,000 | |||||||||
Total Commitments | $ | 12,050,000 | $ | 25,800,000 | $ | 37,850,000 |
Note 13 – Note, Warrant, & Common Stock Purchase Agreement
The Company entered into a common stock purchase agreement (the “Purchase Agreement”) with three members of the Company’s Board of Directors, to sell, in a private offering, an aggregate of 650,000 shares of the Company’s common stock, no par value, for gross proceeds of approximately $1,600,000. The private offering closed on June 12, 2014. The Shares are restricted securities and may not be offered or sold absent registration under the Securities Act of 1933. Pursuant to the terms of the Purchase Agreement, the Company has agreed to provide demand registration rights with respect to the Shares, with certain limited exceptions. The Company filed its Form S-3 registration statement on May 29, 2015. Pursuant to the terms of the Purchase Agreement, the Company has also granted the Investors a one-year preemptive right to participate pro rata in future issuances of the Company’s common stock.
In October 2014, the Company entered into a Note and Warrant Purchase Agreement (the “Note and Warrant Purchase Agreement”) with four members of the Company’s Board of Directors to issue an aggregate of $1,000,000 in principal amount of promissory notes (the “Notes”) and warrants (the “Warrants”) to purchase an aggregate of 200,000 shares of the common stock, no par value (the “Common Stock”), of the Company (the “Notes and Warrants Offering”). The Notes will bear interest at a rate of 15.0% per annum and mature October 22, 2017. Interest only payments are due monthly with the option to prepay the outstanding principal on or after December 31, 2015. The Company is required to prepay the outstanding principal within five days of the next milestone payment to Mevion, if that occurs before the maturity date. The Warrants expire three years after their initial issuance date and may be exercised for a purchase price equal to $2.20 per share of Common Stock, the closing price per share of the Company’s Common Stock on the New York Stock Exchange MKT on the date preceding the date of the Note and Warrant Purchase Agreement. The Company, upon funding of its milestone payment to Mevion, paid-off the Notes in February 2016.
Concurrently with the Note and Warrant Purchase Agreement, the Company entered into a common stock purchase agreement (the “Common Stock Purchase Agreement”) with one member of the Company’s Board of Directors to sell, in a private offering, 100,000 shares of the Company’s Common Stock (the “Private Placement Shares”), for gross proceeds of $220,000 (the “Common Stock Offering” and, together with the Notes and Warrants Offering, the “Private Offering”). The Common Stock Purchase Agreement contains terms and conditions that are customary for a transaction of this type.
The Company received gross proceeds of $1,220,000 in the Private Offering, which were used, together with cash on hand, to make two payments of $1,000,000 each to Mevion as deposits pursuant to the terms of purchase commitments with Mevion.
Note 14 –Related Party Transactions
The Company’s Gamma Knife and IGRT businesses in Turkey were operated through EWRS Turkey. GKF owned indirectly 70% of EWRS Turkey, through its 70% ownership of EWRS LLC. The remaining 30% ownership of EWRS LLC was held by EMKA LLC (“EMKA”). EMKA is owned and operated by Mert Ozyurek (“Mr. Ozyurek”) who also sits on the Board of Directors of the Company. Mr. Ozyurek operates a foreign company called Ozyurek A.S. Prior to the sale of EWRS Turkey in 2014, the Company purchased its two Gamma Knife units from Ozyurek A.S. and had contracts for service and maintenance on the machines. In addition, the Company reimbursed EMKA its share of marketing fees in its attempt to achieve the earn-out from the sale of EWRS Turkey. The Company believes all its transactions with Mr. Ozyurek were arm’s-length transactions.
24
American Shared Hospital Services |
Notes to Consolidated Financial Statements |
Note 14 – Significant Related Party Transactions (continued)
The Company’s Gamma Knife business is operated through its 81% indirect interest in its GKF subsidiary. The remaining 19% of GKF is owned by a wholly owned U.S. subsidiary of Elekta, which is the manufacturer of the Gamma Knife. Since the Company purchases its Gamma Knife units from Elekta, there are significant related party transactions with Elekta such as equipment purchases, commitments to purchase equipment, deposits for such equipment purchases, and costs to maintain the equipment. The Company believes that all its transactions with Elekta are arm’s-length transactions. At December 31, 2015, the Company had commitments to purchase one Gamma Knife Perfexion system and one Cobalt-60 reload from Elekta, as discussed in Note 12 – Commitments and Contingencies.
The Company entered into a Purchase Agreement in 2014 to sell 650,000 shares of the Company’s common stock for proceeds of approximately $1,600,000 with three members of the Company’s Board of Directors. Also in 2014, the Company entered into a Note and Warrant Purchase Agreement with four members of the Company’s Board of Directors to issue $1,000,000 in principal amount of Notes and Warrants to purchase 200,000 shares of the Company’s common stock. Concurrently with the Note and Warrant Purchase Agreement, the Company entered into Common Stock Purchase Agreement with one member of the Company’s Board of Directors to sell 100,000 shares of the Company’s Common Stock for $220,000. The Company believes all its transactions with the members of the Company’s Board of Directors were arm’s-length transactions. See Note 13 – Note, Warrant, & Common Stock Purchase Agreement for additional information.
The Company has a common stock investment in Mevion which is recorded on the balance sheet as of December 31, 2015 at its fair value of approximately $579,000. In addition to the equity interest, the Company has purchased one MEVION S250 PBRT machine from Mevion, and has $2,000,000 in non-refundable deposits towards the purchase of two additional MEVION S250 machines. The Company believes all of its transactions with Mevion were arm’s-length transactions. See Note 4 – Investment in Equity Securities for additional information.
Note 15 – Major Customers
The Company’s revenue was provided by seventeen customers in 2015, twenty customers in 2014 and nineteen customers in 2013. In 2015, one customer accounted for more than 10% of total revenue. In 2014 no one customer accounted for more than 10% of revenue. In 2013, two customers each accounted for approximately 10% of total revenue. At December 31, 2015 and 2014, three customers each accounted for more than 10% of total accounts receivable.
Note 16 – Subsequent Events
On January 14, 2016 the Company entered into a definitive lease agreement for financing of its MEVION S250 at UF Health Cancer Center at Orlando Health. The proceeds of this financing of approximately $8,400,000 were used to pay down the $1,000,000 Note with four members of the Company’s Board of Directors, reimburse the Company for freight costs associated with the MEVION S250, and to fund one of the remaining milestone payments of approximately $6,700,000. An additional payment of approximately $600,000 is due to Mevion in 2016 which will be paid using the remaining proceeds from the lease financing – See Note 12, Commitments and Contingencies and Note 13, Note Warrant, & Common Stock Purchase Agreement. The customer contract, ownership interest in Orlando, and receivables of the MEVION S250 are pledged as collateral for the lease agreement. The lease agreement is guaranteed by the Company and there are certain restrictions on cash distributions from Orlando to the Company.
25
Exhibit 10.1h
EIGHTH AMENDMENT AGREEMENT
This Eighth Amendment Agreement (“Eighth Amendment”) is made and entered into this 28 day of April, 2010, but effective as of April 28, 2010 (the “Effective Date”), by and between AMERICAN SHARED RADIOSURGERY SERVICES, Inc. (“ASRS”) and GKV INVESTMENTS, INC. (“GKV”).
WHEREAS , ASRS and GKV are parties to that certain Operating Agreement for GK Financing, LLC dated as of October 17, 1995, as amended by seven amendments thereto (the “Operating Agreement”):
WHEREAS , ASRS and GKV desire to further amend the Operating Agreement in certain respects;
NOW, THEREFORE , in consideration of the mutual promises and covenants contained herein, and for other valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Defined Terms . All capitalized terms used herein which are defined in the Operating Agreement shall have the meaning set forth in the Operating Agreement.
2. Amendment to Operating Agreement . Effective as of the Effective Date of this Eighth Amendment, the parties agree that the following sections of the Operating Agreement are amended as follows:
A. | Article I, Section 1.16 O(i) of the Operating Agreement entitled “Territory” is hereby amended by deleting that section in its entirety and substituting in lieu thereof the following: |
“O(i). “ Territory ” shall mean the United States of America and Brazil. Provided, however, notwithstanding anything to the contrary contained herein, the Territory shall also include such additional site locations in countries outside of the United States of America and Brazil (collectively, “Other Countries”) as may be authorized from time to time upon unanimous written consent of the (i) Members and (ii) Policy Committee (the “Consent”). The authorization of a site location in any Other Countries shall be limited only to the specific transaction that is approved pursuant to the Consent. For the avoidance of doubt, each transaction in all Other Countries shall require a separate Consent even if the transaction is within the same country as another transaction for which a Consent was previously issued. Upon mutual execution of the Consent, the same shall be incorporated into the records of the Company.”
B. | The first sentence of Paragraph 3.9 of the Operating Agreement (as amended by the Seventh Amendment Agreement dated as of October 18, 2008) is hereby deleted and replaced with the following: “The Company’s sole business shall be to act as a non-exclusive alternative financing provider of EII and EISA to health care institutions in the Territory acquiring Gamma Knife Units.” |
This Eighth Amendment may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement and shall become effective (subject to the immediately preceding paragraph) when one or more counterparts have been signed by each of the parties and delivered to the other party. Except as explicitly amended by the Eighth Amendment, the provisions of the Operating Agreement shall remain in full force and effect.
IN WITNESS WHEREOF , the parties hereto have hereunto set their hands and seals as of the date first above written.
GKV INVESTMENTS, INC. | AMERICAN SHARED RADIOSURGERY SERVICES, INC. |
By: /s/ Mark Symons | By: /s/ Ernest A. Bates |
Title: Senior Vice President | Title: President and CEO |
Exhibit 10.1i
NINTH AMENDMENT AGREEMENT
This Ninth Amendment Agreement (“Ninth Amendment”) is made and entered into effective as of the 16 th day of May, 2011 (the “Effective Date”), by and between AMERICAN SHARED RADIOSURGERY SERVICES, INC. (“ASRS”) AND GKV INVESTMENTS, INC. (“GKV”).
WHEREAS , ASRS and GKV are parties to that certain Operating Agreement for GK Financing, LLC dated as of October 17, 1995, as amended by eight amendments thereto (as amended, the “Operating Agreement”):
WHEREAS , ARS and GKV desire to further amend the Operating Agreement as set forth herein;
NOW, THEREFORE , in consideration of the mutual promises and covenants contained herein, and for other valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings as set forth in the Operating Agreement.
2.
Amendment
to Paragraph 3.9 of the Operating Agreement
. Effective as of the Effective Date of this Ninth Amendment, the parties
agree that Paragraph 3.9 of the Operating Agreement (captioned “Business Purpose of the Company”) shall be
amended as follows:
(a) The first and second sentences of Paragraph 3.9 of the Operating Agreement are hereby deleted and replaced with the following:
“The business of the Company shall be to act as a non-exclusive alternative financing provider of Elekta AB, EII, EISA and their respective affiliates and distributors (collectively, the “Elekta Parties”) to health care institutions and other entities (collectively, “End Users”) in the Territory acquiring Gamma Knife units and related stereotactic radiosurgery (SRS) and stereotactic radiation therapy (SRT) equipment which from time to time is included in the Elekta product portfolio (collectively, “Equipment”). As an alternative financing provider, (i) the Company, either directly or indirectly through the Company’s wholly or partially-owned subsidiary(ies), (A) may purchase the Equipment from any of the Elekta Parties, and (B) may enter into leases, joint ventures, partnerships and/or other agreements or arrangements with End Users for the use of Equipment, pursuant to which the Company will be reimbursed, directly or indirectly, based on the usage of the Equipment, revenues or profits generated therefrom, or other alternative financing arrangement with the End Users, and/or (ii) the Company may guarantee indebtedness of its wholly or partially owned subsidiary(ies) that is incurred by such subsidiary(ies) to purchase the Equipment from Elekta Parties.”
(b) All references to “Gamma Knife” in clauses A through H, inclusive, of Paragraph 3.9 of the Operating Agreement shall mean and be deemed to refer to the Equipment.
(c) Counterparts . This Ninth Amendment may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement and shall become effective on the Effective Date.
(d) Full Force and Effect . Except as explicitly amended by this Ninth Amendment, the provisions of the Operating Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF , the parties hereto have hereunto set their hands and seals as of the date first above written.
GKV INVESTMENTS, INC. | AMERICAN SHARED RADIOSURGERY SERVICES, INC. |
By: /s/ Mark Symons | By: /s/ Ernest A. Bates |
Title: Senior Vice President | Title: President and CEO |
Exhibit 10.2
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS LEASE AGREEMENT FOR A GAMMA KNIFE UNIT dated as of October 29, 1996, (hereinafter, referred to as the “Agreement”) is entered into between GK Financing, LLC, a California Limited Liability Company, (hereinafter referred to as “GKF”), and METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD. dba SOUTHWEST TEXAS METHODIST HOSPITAL, a Texas corporation, (hereinafter referred to as “Hospital'').
RECTALS
WHEREAS, Hospital wants to lease a LekselI Stereotactic Gamma Unit distributed by Elekta Instruments, Inc., (hereinafter referred to as the “Equipment”) and desires from GKF certain marketing and administrative support related to utilization of said 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 and is willing to provide to Hospital its marketing and administrative capabilities; and.
NOW, therefore, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Hospital and Elekta . GKF hereby leases the Equipment to the Hospital on the terms and conditions hereinafter set forth. Hospital agrees that simultaneously with the execution of this Agreement it shalI execute that certain LGK Agreement with Elekta, (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Hospital agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement.
2. Delivery of the Equipment and Site preparation . GKF shall arrange to have the Equipment delivered to Hospital, at _____________ (the “Site”) in coordination with Elekta. The Equipment shall be the latest Gamma Knife technology available at the date of this Agreement, including all hardware and software options. GKF shall exert its best faith efforts to expedite the delivery of the Equipment to a site mutually agreeable to GKF and Hospital in accordance with the terms and conditions of the Purchase Agreement for the Equipment by and between GKF and Elekta. Notwithstanding the preceding sentence, it is understood and agreed that GKF has made no representations and warranties to Hospital concerning actual delivery dates or schedules for the Equipment at the Site. GKF shall coordinate with Hospital the estimated delivery date of equipment.
Hospital shall provide a safe, convenient and properly prepared Site, at its own expense, in accordance with all of the Equipment manufacturer's (Elekta's) guidelines, specifications, technical instruments and Site Planning Criteria (which Site Planning Criteria are attached hereto as Exhibit B and incorporated herein by this reference), which criteria shall include Elekta's estimated delivery schedule when and as received by GKF, on Hospital controlled property for the proper performance of Gamma Knife procedures. Site location shall be acceptable to GKF. Hospital shall prepare at its sole cost and expense the requisite site plans and specifications and shall submit them to Elekta and GKF for approval before implementation of such plans. Hospital shall apply for, in a timely manner and use its best efforts to obtain as soon as reasonably possible thereafter a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance tests, and the use of the Equipment all as more fully set forth in Article 2.1 of the LGK Agreement.
3. Gamma Knife Service Term . GKF agrees to provide to Hospital, and Hospital agrees to accept and utilize from GKF, the Equipment pursuant to the terms of this Agreement for a term (the “Gamma Knife Service Term”) commencing on the day (the “Commencement Date”) that the first procedure using the Equipment is performed on a patient of the Hospital for which payment is due GKF from the Hospital pursuant to the provisions of Section 6 of this Agreement, and ending on that date which is ten (10) years thereafter, unless terminated earlier in accordance with the terms of this Agreement. Hospital shall be liable to GKF for the payments referred to in Paragraph 6 below, as applicable, upon the Commencement Date.
4. Costs of Site Preparation: Costs of Installation . Hospital's obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in accordance with such plans and specifications, being in full compliance with Elekta's Site Planning Criteria. Hospital shall at its own expense and risk, prepare, construct and make ready the Site as necessary, for the installation of the Equipment, including, but not limited to, providing any temporary and/or permanent shielding for the charging of the equipment and its use, selecting and preparing a proper foundation for the Equipment and for such shielding and walls, as well as proper alignment of the Site and wiring. Hospital shall be responsible for the positioning of the Equipment on its foundation at the Site in compliance with Elekta's Site Planning criteria (attached as Exhibit B).
Hospital shall also at its own expense select, purchase and install all radiation monitoring equipment and devices, safety circuits and radiation warning signs needed for the Equipment at the Site, according to all applicable federal, state and local laws and regulations.
Hospital warrants that the Site will be prepared in compliance with the Site Planning Criteria.
Hospital shall be liable to GKF for any damage to the Equipment caused by (a) defects in construction of the Site or defects in the positioning of the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by Hospital with respect to the Site; or (c) negligent or intentional acts of omission or commission by Hospital or any of its officers, agents, physicians, and employees in connection with the Site preparation; or (d) operation of the Equipment at the Site.
Hospital warrants that it shall utilize its reasonable efforts to fulfill on an timely basis its obligations under this Paragraph 4. Hospital further warrants that it shall on a regular basis keep GKF informed of Hospital's progress in fulfilling its obligations pursuant to this Paragraph 4. Should Hospital not have all Site preparations completed by the delivery date (which delivery date the parties shall negotiate in good faith and document) plus a sixty (60) day grace period such that the Site is acceptable for positioning and installation of the Equipment, Hospital shall reimburse GKF at an interest rate of Bank of America's prime rate plus 2% on GKF's Equipment cost until the site is prepared to allow positioning and installation of the Equipment. Should the Equipment not be delivered by the delivery date plus a sixty (60) day grace period, other than by reasons of force majeure (see Section 27(c)) or Hospital's failure to complete Site preparations necessary for the positioning and installation of the Equipment, GKF shall reimburse Hospital at an interest rate of bank of America's prime rate plus two percent (2%) on Hospital's costs in constructing and finishing out the Site until the Equipment is delivered.
5. Marketing Support GKF will assist and provide financial marketing support to Hospital of at least $250,000 during the first five (5) years of this project, subject to approval by Hospital.
6. Per Procedure Payments . As its sole consideration for the lease of the Equipment and the provision of marketing and administrative support, Hospital shall pay GKF the per procedure payment of eight thousand five hundred dollars ($8,500) for each procedure that is performed on Hospital's patients using the Equipment during the first five (5) years of this Agreement.
The fee per procedure during Years Six (6) through Ten (10) shall be determined on an annual basis as follows.
Years 6 and 7 | ||||
Annual Procedures | Fee Per Procedure | |||
1 through 100 | $ | 8,200 | ||
101 through 125 | $ | 7,000 | ||
126 through 150 | $ | 6,000 | ||
Each procedure after 150th | $ | 5,000 |
Years 8 through 10 | ||||
Annual Procedures | Fee Per Procedure | |||
1 through 100 | $ | 7,000 | ||
101 through 125 | $ | 6,000 | ||
126 through 150 | $ | 5,000 | ||
Each procedure after 150th | $ | 4,000 |
If at any time during the initial term of this Agreement the total number of procedures equals 1,400, Hospital shall pay GKF a per procedure payment of $4,000 for each procedure in excess of 1,400 procedures.
If no procedures are performed utilizing the Equipment, no charges shall be incurred by Hospital.
A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session. Hospital shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively. Hospital shall pay the procedures invoiced within thirty (30) days after being invoiced. Interest shall accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days.
Billing statements, as provided above, will set forth two components of the charges. The equipment-related component will equal sixty-eight (68%) percent of the total fee per procedure and the administrative component will equal thirty-two (32%) percent of the total fee per procedure.
7. Use of the Equipment . The Equipment may be used at Hospital only at the Site identified and shall not be removed therefrom. Hospital shall not use nor permit the Equipment to be used by any personnel who are not properly trained or in any manner nor for any purpose for which Elekta or GKF has notified the Hospital the Equipment is not designed or reasonably suitable. Hospital shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF.
8. Additional Covenants of Hospital . In addition to the other covenants made by Hospital, Hospital shall at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment. Hospital will have on staff a minimum of two (2) Gamma Knife trained teams of neurosurgeons, radiation therapists and physicists. Parties acknowledge that physicians, radiation therapists and physicists are not employees of the Hospital and are independent contractors.
(b) Notwithstanding any requirements to the contrary or the absence of any requirements in the bylaws, rules and regulations of Hospital's medical staff, Hospital shall cause all neurosurgeons, radiation therapists and physicists that may use the Equipment as contemplated in this Agreement to obtain and maintain, at no expense to GKF, throughout the Gamma Knife Service Term, a policy or policies of insurance insuring their respective risks of professional medical liability incurred in connection with providing professional services utilizing the Equipment as contemplated in this Agreement, in amounts for each such person which shall be not less than $500,000 per incident and $1,000,000 in the annual aggregate. Upon expiration of the Gamma Knife Service Term or its earlier termination in accordance with the terms of this Agreement, if occurrence coverage has not been carried, Hospital shall cause, at no cost to GKF, professional liability tail coverage to be obtained and maintained with respect to each such person with the same limits as in effect on the last day of the term of this Agreement, such tail coverage policy or policies to cover such person's risks of professional medical liability arising during the Gamma Knife Service Term. Also, upon the expiration or termination of any such policy prior to the expiration of the Gamma Knife Service Term or its earlier termination, Hospital shall cause, at no cost to GKF, a substitute policy or tail coverage to be obtained and maintained with the same limits as in effect on the date of expiration or termination, such substitute policy or tail coverage to cover any such person's risk of professional medical liability arising during the Gamma Knife Service Term. Prior to the commencement of the Gamma Knife Service Term or before a neurosurgeon, radiation therapists or physicist first uses the Equipment, and annually, thereafter (i.e., upon policy renewal), Hospital shall provide GKF (or cause neurosurgeons, radiation therapists and physicists to provide GKF) with certificates of insurance or other written evidence with respect to each such policy. Hospital shall also cause all such neurosurgeons, radiation therapists and physicists to provide GKF with written notice of any change to such coverage throughout the Gamma Knife Service Term.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Indemnify GKF as herein provided:
(i) Hospital shall fully indemnify, hold harmless and/or reimburse GKF (and its members and their respective officers, directors, agents, employees and affiliates) for any loss, liability, damage, penalty, action, claim, cost or expense (including reasonable attorneys' fees) (hereinafter collectively referred to as “damages”) which GKF may suffer or incur which are solely caused by Hospital's Site preparation and the Equipment's positioning, if the Site preparation or the Equipment's positioning was not done in compliance with Elekta's Site Planning Criteria. Except as relates to Site plans, specifications and positioning plans reviewed and approved by GKF and/or Elekta, or construction of other Site preparation done in compliance with Elekta's Site Planning Criteria, Hospital shall be liable for any damages to the Equipment caused by (a) defects in construction of the Site or defects in positioning of the Equipment at the Site: (b) defects arising out of materials or parts provided, modified or designed by Hospital with respect to the Site: (c) negligent or intentional acts of omission or commission by Hospital or any of its officers, agents or employees in connection with the Site preparation; or (d) negligent operation of the Equipment at the Site. However, neither the review and approval of Site plans, specifications and/or positioning plans by GKF and/or Elekta, nor the construction of any other Site preparation, shall relieve hospital 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.
(ii) Hospital shall fully indemnify, hold harmless and/or reimburse (including reasonable attorneys fees) GKF (and its members and their respective officers, directors, agents employees and affiliates), on a prompt basis for any and all damages to the Equipment (including any violation by Hospital, its agents, officers, employees, successors and assigns, or by any physician-users of the Equipment, of the Services Agreement described in Section 15 hereof) to the extent such damages are caused by the negligent or wrongful acts or omissions of Hospital, its agents, officers, employees, successor or assigns or by any physician-users of the Equipment. In the event the Equipment is destroyed or rendered unusable, this indemnification shall extend up to the full replacement value of the Equipment at the time of its destruction less salvage value, if any.
(iii) Hospital shall fully indemnify, hold harmless and/or reimburse GKF (and its members and their respective officers, directors, agents, employees and affiliates) for any damages which GKF may suffer or incur as a result of Hospital's breach or alleged breach of this Lease Agreement.
(iv) Hospital shall fully indemnify, hold harmless and/or reimburse GKF (and its members and their respective officers, directors, agents, employees and affiliates) for any damages, claims, judgments and liabilities by or to third parties (plus litigation costs incurred and reasonable attorneys fees) which GKF may suffer or incur resulting from injury to or death of any person or physical loss or damage to property arising out of the negligent operation or negligent medical use of the Equipment by or for Hospital (but which is not attributable to defective materials, workmanship or manufacture of the Equipment), the defective maintenance of the Equipment by or for Hospital (but only to the extent not performed by or on behalf of Elekta), the failure of the Site to comply with the Site Planning Criteria, or the training referred to in Section 3.2 of the LGK Agreement. It is agreed that non-employee physician/users of the Equipment are independent of the Hospital and are not acting by or for the Hospital.
(e) Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.) and marketing support from an administrative and clinical (i.e. seminars by neurosurgeons and radiation therapists to referring physicians, etc.) standpoint for this service.
(f) Keep and maintain the Equipment and Site fully protected, secure and free from unauthorized access or use by any person.
9. Additional Covenants, Representations and Warranties of GKF . In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to Hospital that, upon delivery of the Equipment to Hospital, GKF shall use its reasonable commercial efforts to require that Elekta meets its contractual obligations to GKF and in putting the Equipment, as required by the LGK Purchase Agreement, into good, safe and serviceable condition and fit for its intended use in accordance with the manufacturer's specifications, guidelines and field modification instructions.
(c) GKF represents and warrants that throughout the term of this Agreement, Hospital shall enjoy the use of the Equipment, free of the rights of any other persons except for those rights reserved by GKF or the right of access granted to Elekta under the LGK Agreement or under the LGK Purchase Agreement with GKF.
(d) During the entire term of this Agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 15 hereof. GKF represents and warrants that during the entire term of this agreement and any subsequent extensions thereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and/or Elekta's warranties to GKF. ln no event, however, shall the warranty obligations of GKF to Hospital with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment. Hospital and GKF acknowledge that Exhibit D of that certain LGK Purchase Agreement, dated as of October 11, 1995, by and between Elekta and GKF (the “LGK Purchase Agreement”) sets forth the warranties with respect to the Equipment granted by Elekta to GKF, which warranties are identical in form and content to the warranties provided by Elekta to Hospital in Exhibit D of the LGK Agreement. Hospital is an intended third-party beneficiary of the warranties granted by Elekta to GKF in Exhibit D of the LGK Purchase Agreement and Hospital shall be entitled to enforce the obligations of Elekta thereunder directly.
10. Ownership/Title . It is expressly understood that Hospital shall acquire no right, title or interest in or to the Equipment, other than the leasehold interests conveyed hereunder, including, the right to the possession and use of the same in accordance with the terms of this Agreement, except as outlined under Paragraph 17. Hospital shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Hospital shall, at GKF's request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
GKF may at its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a financing lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a financing lease title shall vest with the lessor until GKF exercises its buy-out option. In addition, should GKF finance the equipment, said Agreement may be used as collateral against the loan. Hospital's right to possess and use the Equipment hereunder shall be subject to the interest of GKF's financing entities, if any. GKF shall instruct any such financing entities to notify (the “Default Notice”) GKF and Hospital in writing within ten (10) business days after any payment defaults by GKF to any financing entity with respect to the Equipment at the Site (each, a “Payment default”). If GKF has not provided Hospital with reasonably satisfactory evidence that it has cured any such Payment Default within twenty (20) business days after Hospital's receipt of the Default Notice, Hospital shall have the right to cure any such Payment Default by paying to any such financing entity, as appropriate, the amount of the Payment Default and providing GKF with reasonably satisfactory written evidence of any such payment. Any amounts paid by Hospital to any such financing entity pursuant to the provisions of this Section 10 shall be offset against amount due GKF from the Hospital pursuant to Paragraph 6 of this Agreement. Except as otherwise specifically provided in this Paragraph 10, Hospital shall have no rights of set off against amounts due GKF form the Hospital pursuant to this agreement or otherwise.
11. Cost of Use of the Equipment . Except as is otherwise provided herein, Hospital shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment.
12. Taxes . GKF shall pay any personal property and sales and use taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for taxes, if any, assessed on the basis of net income, gross income or gross receipts of Hospital.
13. Maintenance and Inspections . GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a good state of repair, reasonable wear and tear excepted.
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to Hospital's operations. In the event the Equipment is improperly used by Hospital or its employees, agents, officers, physicians, or any other non-GKF or non-Elekta individual GKF may service or repair the same as needed and such expense shall be paid by Hospital, unless the repair is covered by the Service Agreement described in Paragraph 15 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of Hospital's failure or neglect to do so shall not deprive GKF of any of its rights, remedies or actions against Hospital for damages caused by such failure or neglect.
14. Equipment Modifications/Additions/Upgrades . The parties agree that the necessity and financial responsibility for future modifications/additions/upgrades to the Equipment, including the reloading of the Cobalt-60 source, shall be discussed and mutually agreed to by GKF and Hospital.
15. Service Agreement . GKF warrants that it shall simultaneously with the execution of this Agreement enter into a Service Agreement with Elekta. Service Agreement shall be at GKF's sole expense.
16. Intentionally omitted
17. Options
(a) Hospital shall have the option, exercisable as set forth below, to:
(i) Renegotiate this Agreement on terms mutually agreeable to GKF for a specified renewal term taking into account the first ten (10) years of activity of the Equipment at the Site. Pursuant to Paragraph 17(a)(ii), if terms and conditions of Agreement extension are not executed by both parties by the end of the 114th month, this Agreement shall terminate. Both parties shall negotiate in good faith on the terms and conditions of an extension of this Agreement.
(ii) Terminate this Agreement. lf Hospital fails to renew the Equipment Term at the end of the initial term, GKF shall, at its sole expense remove the Gamma Knife within a reasonable period of time after the expiration of the ten (10) year initial Term. Hospital shall cooperate in good faith in such removal.
(iii) Purchase the Equipment from GKF at a price equal to $1.00 if at least one thousand four hundred (1,400) paid procedures have been performed during the ten (10) year initial Equipment Term. Hospital shall also be eligible to purchase the Equipment on an agreed upon formula, if Hospital performs at least one thousand three hundred (1,300) but less than one thousand four hundred (1,400) procedures during the ten (10) year initial Equipment Term. The formula will stipulate that Hospital has the option to purchase the Equipment for a price equal to the difference between 1,400 and the actual number of paid procedures, if the number of paid procedures is greater than 1,300 procedures, multiplied by $4,400 (i.e. 1,400 procedures minus 1,380 paid procedures times $4,400 equals $88,000.) This purchase price is contingent upon Hospital paying for the cost to reload the Cobalt on this Equipment during approximately the eighth year of the original Equipment Term of this Agreement, if required. The Equipment Term shall be extended by the number of business days the Equipment is not available for clinical use during Cobalt reloading.
(iv) Purchase the Equipment from GKF at a price equal to 80% of its Fair Market Value. Should Hospital pay for the cost to reload the Cobalt on this Equipment during the original Equipment Term of this Agreement, increase in Equipment value attributed to Cobalt reloading will be excluded from determining the Equipment's Fair Market Value.
Hospital shall exercise one (1) of the four (4) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California, 94111, by registered mail, postmarked on or before the end of the ninth (9th) year of the ten (10) year initial Equipment Term of this Agreement. Any such notice shall be sufficient if it states in substance that Hospital elects to exercise its option and states which of the four (4) options referred to above Hospital is exercising.
18. No Warranties by GKF . Hospital warrants that as of the Commencement Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a 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's stated purposes. GKF SUPPLIES THE EQUIPMENT “AS IS” AND 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, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks as between GKF and Hospital, shall be borne by Hospital. Hospital agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. GKF will use reasonable commercial efforts to enforce any and all warranties made by Elekta on behalf of Hospital during the ten (10) year initial Equipment Term and any extensions hereof. Hospital agrees that GKF shall not be responsible for the delivery, installation, or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage resulting from the installation, operation or use of the Equipment or otherwise. Hospital expressly waives any right or claim 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.
19. Events of Default and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Hospital fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Hospital.
(b) Hospital attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) Hospital shall fail to observe or perform any of the other obligations required to be observed or performed by Hospital hereunder and such failure shall continue for twenty (20) days after written notice thereof to Hospital by GKF, unless Hospital has cured or is attempting to cure such failure during such period. So long as Hospital is diligently attempting to cure its failure to observe or perform any of its obligations, in good faith, such failure shall not constitute an Event of Default hereunder, unless such failure results in material damage or loss to GKF.
(d) 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 or directors shalI take any action looking to its dissolution or liquidation.
(e) 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'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.
Upon the occurrence of an Event of Default, GKF may at its option do any or all of the following: (i) by notice to Hospital, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Hospital and Hospital hereby agrees to return the Equipment to GKF at Hospital's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Hospital to GKF through the end of the Equipment Term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments and incorporating an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Hospital shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event that Hospital shall have paid to GKF the liquidated damages referred to in (ii) above, GKF hereby agrees to 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 ten (10) year initial Equipment Term (after deduction of all expenses incurred by GKF (including costs of unloading, shipping, installing, and reloading the equipment); said amount never to exceed the amount of the liquidated damages paid by Hospital). Hospital agrees that GKF shall have no obligation to sell the Equipment. Hospital shall in any event remain fully liable for reasonable damages as provided by law 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. Hospital hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
20. IInsurance .
(a) During the ten (10) year initial Equipment Term of this Agreement (and any successive terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. Hospital shall be named as an additional insured under the all risk and hazard insurance policy maintained by GKF to the extend to its leasehold interest. Evidence of such insurance coverage shall be furnished by GKF to Hospital upon written request. During the ten (10) year initial Equipment Term of this Agreement, Hospital shall, at its own cost and expense keep in effect public liability and professional liability insurance policies concerning the possession and operation-of the Equipment by Hospital. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $5,000,000 in aggregate per year. GKF and its members, successors and assigns, shall be named as additional insureds under the liability and professional liability policies maintained by Hospital. Evidence of such insurance coverages shall be furnished by Hospital to GKF upon written request, by no later than the Commencement Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Hospital shall give to GKF immediate notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, GKF at its sole cost and expense shall promptly replace the Equipment. 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 promptly repaired.
21. Notices . Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Craig K. Tagawa, C.E.0. |
Four Embarcadero Center, Suite 3620
San Francisco,
CA 94111
To Hospital: | James C. Scoggin, Jr. , CEO |
Southwest Texas Methodist Hospital
7700 Floyd Curl Drive
San
Antonio, TX 78229
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
22. lntegration/Supersedure . This Agreement together with all exhibits and addenda attached hereto contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
23. Waivers . To the extent that GKF fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice GKF's rights to pursue any of those remedies at any future time and shall not constitute a waiver of GKF's rights. To the extent that Hospital fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice Hospital1s rights to pursue any of those remedies at any future time and shall not constitute a waiver of Hospital's rights.
24. Assignments . This Agreement is binding upon and shalI inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that Hospital may not assign its rights or obligations under this Agreement without the express written consent of GKF (which consent shall not be unreasonably withheld). Hospital shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF; which consent shall not be unreasonably withheld. No permitted assignment or sublease shall relieve Hospital of any of its obligations hereunder. For purposes of this Section 24, a reorganization, recapitalization, merger, or other business combination or restructuring of Hospital shall not be considered an assignment of this Agreement, so long as Methodist Healthcare System of San Antonio, Ltd., retains at least a fifty percent (50%) direct or indirect ownership interest in the Hospital.
25. Amen d ments. This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
26. Record-Keeping Requirements . To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Hospital by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Hospital by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
27. Miscellaneous Provisions .
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) Force Majeure . Failure to perform any obligation hereunder (except for the payment of money) 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.
(d) Governing Law . The Agreement will be governed by Texas law.
(e) Dispute Resolution . Should a dispute arise out of this contract, the parties to the dispute shall first attempt to resolve it through direct discussions in the spirit of mutual cooperation. If the parties' attempts to resolve their disagreements through negotiation fail, the dispute shall be mediated by a mutually acceptable third-party to be chosen by the disputing parties within thirty (30) days after written notice by one of them demanding mediation. The disputing parties shall share the cost of the mediation equally. By mutual agreement the parties may postpone mediation until each has completed some specified but limited discovery about the dispute. By mutual agreement the parties may use a nonbinding form of dispute resolution other than mediation. Any nonbinding dispute resolution process conducted under the terms of this section shall be confidential within the meaning of Tex. Civ. Prac. and Rem. Code sec. 154.053 and 154.073. ln the event that neither a negotiated or mediated resolution is obtained within the time periods provided by this section, the parties may pursue any available legal or equitable remedy.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
SOUTHWEST TEXAS | GK FINANCING, LLC |
METHODIST HOSPITAL | |
By: /s/ James C. Scoggin, Jr. | By: /s/ Craig K. Tagawa |
James C. Scoggin, Jr. | Craig K. Tagawa |
Chief Executive Officer | Chief Executive Officer |
Exhibit 10.2a
ADDENDUM TO
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
1. GKF shall participate jointly with Hospital in the design, development and construction contract solicitation required in connection with the preparation of the Site for the Equipment. In this regard:
(a) GKF and Hospital have identified and approved Garza, Bomberger and Associates as the architectural firm to be engaged by Hospital to develop the design, layout, and plans and specifications for the Site. GKF shall assist Hospital with, and the Hospital shall regularly consult with GKF with regard to, the design or layout of the Site and all matters related to the preparation of the plans and specifications.
(b) GKF also shall participate with Hospital in the identification and review of possible construction, engineering and/or design firms (general contractors and/or any subcontractors) to be engaged by Hospital to construct the Site. GKF shall have the right to interview all construction, engineering and/or design firms proposed by Hospital or GKF for the project. All bids to perform the construction, engineering and/or design work for the Site shall be submitted to GKF for review prior to Hospital’s selection thereof. The construction, engineering and/or design firm(s) finally selected by Hospital to perform the work and its bid shall be subject to the written approval of GKF, which approval shall not be unreasonably withheld, conditioned or delayed.
2. As soon as reasonably possible after Hospital enters into the principal contracts for the design, preparation and construction of the Site (i.e., design/layout, architectural engineering and general construction), Hospital shall determine in writing the aggregate costs and expenses previously incurred and shall estimate the aggregate costs and expenses to be subsequently incurred by Hospital to design, plan, prepare, construct and complete the Site for the Equipment (the “Site Preparation Costs”) based upon the amounts reflected in said contracts. A copy of the written determination shall be delivered by Hospital to GKF. If the aggregated Site Preparation Costs set forth in the written determination are Nine Hundred Fifty Thousand ($950,000.00) or less, Hospital shall be responsible for the payment of all Site Preparation Costs. If the aggregate Site Preparation Costs set forth in the written determination are more than Nine Hundred Fifty Thousand Dollars ($950,000.00), GKF shall reimburse Hospital in the manner set forth in Section 3 below for the amount of Site Preparation Costs set forth in the written documentation in excess of Nine Hundred Fifty Thousand Dollars ($950,000.00) (the “Excess Site Preparation Amount”).
3. If GKF is required to reimburse Hospital the Excess Site Preparation Costs:
(a) Concurrent with the payment of any invoices or periodic installments for Site Preparation Costs, Hospital shall deliver to GKF a copy of all invoices or statements, a copy of all evidences of payment (e.g., copies of checks), an accounting of the aggregated Site Preparation Costs, and a comparison of the estimated Site Preparation Costs (as set forth in the written determination) to the actual Site Preparation Costs paid by Hospital. The inadvertent failure of Hospital to provide the foregoing documentation will not affect Hospital’s right to reimbursement hereunder, so long as such documentation is provided to GKF promptly upon request by GKF. When the aggregate Site Preparation Costs paid by Hospital, exceed Nine Hundred Fifty Thousand Dollars ($950,000.00), Hospital shall itemize and request in writing that GKF reimburse Hospital for such excess costs. GKF shall reimburse the Hospital for the excess costs up to the Excess Site Preparation Amount not more than (30) days after the written request for reimbursement and other items described herein are delivered by Hospital to GKF.
(b) Modifications or additions to the Site Preparation Costs, including change orders, shall be subject to written approval of GKF, which approval shall not be unreasonably withheld, conditioned or delayed.
(c) Hospital shall regularly report to GKF on the status of the preparation and construction of the Site. Upon reasonable advance request by GKF, GKF shall have the right to visit and inspect the Site to review the progress of construction.
4. Except as otherwise set forth in this Addendum, all of the provisions of the Lease Agreement remain in full force and effect.
GK Financing, LLC, a California limited liability company |
Methodist Healthcare System of San
Antonio, LTD., dba Southwest Texas
|
By: /s/ Craig K. Tagawa Craig K. Tagawa |
By: /s/ James C. Scoggin, Jr. James C. Scoggin, Jr. |
Chief Executive Officer | Chief Executive Officer |
Dated: October 31, 1996 | Dated: October 31, 1996 |
Exhibit 10.2b
ADDENDUM TWO TO
LEASE AGREEMENT FOR
A GAMMA KNIFE UNIT
This Addendum Two executed as of October 16, 1997, amends that certain Lease Agreement for a Gamma Knife Unit (“Agreement”) executed as of October 31, 1996 between Methodist Healthcare System of San Antonio, LTD. d.b.a. Southwest Texas Methodist Hospital (“Hospital”) and GK Financing, LLC (“GKF”).
Whereas Paragraph 8(b) of the Agreement stipulates that Hospital shall cause all neurosurgeons, radiation therapists and physicists that may use the Equipment as contemplated in this Agreement to obtain and maintain at no expense to GKF, throughout the Gamma Knife Service Term, a policy or policies of insurance insuring their respective risks of professional medical liability incurred in connection with providing professional services utilizing the Equipment as contemplated in this Agreement, in amounts for such person which shall be not less than $500,000 per incident and $1,000,000 in the annual aggregate.
Now, therefore, GKF and Hospital agree that the amounts stated in Paragraph 8(b) shall be amended to stipulate $200,000 per incident and $600,000 in the annual aggregate.
Except as otherwise set forth in this Addendum Two, all of the provisions of the Agreement remain in full force and effect.
GK Financing, LLC A California Limited Liability Company |
Methodist Healthcare System of San Antonio, LTD., d.b.a. Southwest Texas Methodist Hospital A Texas Limited Partnership |
||
By: |
/s/ Craig K. Tagawa Craig K. Tagawa Chief Executive Officer |
By: |
/s/ James C. Scoggin James C. Scoggin, Jr. Chief Executive Officer |
Dated: 10/9/97 | Dated: 10/16/97 |
Exhibit 10.2c
AMENDMENT TO
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This AMENDMENT TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Amendment”) is made effective December 13, 2003 (the “Effective Date”), by and between Methodist Healthcare System of San Antonio, Ltd., d/b / a Southwest Texas Methodist Hospital, a Texas Corporation (“Hospital”), and GK Financing, LLC, a California limited liability company (“GKF”).
RECITALS
WHEREAS, on October 29, 1996, GKF and Hospital executed a Lease Agreement for a Gamma Knife Unit, and an Addendum dated October 31, 1996 (collectively, the “Original Lease”);
WHEREAS, the parties desire to amend the terms and provisions of the Original Lease as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meaning set forth in the Original Lease.
2. Lease Extension . The original ten (10) year Gamma Knife Service Term set forth in Paragraph 3 of the Original Lease shall be extended for an additional two (2) years plus the number of days the Equipment is not available for clinical use during Cobalt reloading (the “Cobalt Reloading Period”). The Commencement Date of the Gamma Knife Service Term was March 17, 1998, and the Cobalt Reloading Period consisted of twenty-two (22) days. Accordingly, the date on which the Gamma Knife Service Term expires shall be extended from March 16, 2008 to April 7, 2010, (which includes the Cobalt Reloading Period).
3. Cobalt Reload . The existing Cobalt-60 was removed from, and new Cobalt-60 reloaded into, the Equipment during the Cobalt Reloading Period commencing on or about December 13, 2003 . The costs to remove and reload Cobalt - 60 on the Equipment shall be the sole responsibility of GKF.
4. Paragraph 5 of the Original Lease shall be deleted in its entirety.
5. Marketing Support . Paragraph 6 of the Original Lease shall be deleted in its entirety and replaced with the following :
Per Procedure Payments . As its sole consideration for the lease of the Equipment and the provision of administrative support, Hospital shall pay GKF the per procedure payment of eight thousand five hundred dollars ($8,500) for each procedure that is performed using the Equipment during the first five (5) years of this Agreement starting from the Commencement Date (i.e. , from March 17 , 1 998 through March 16, 2003).
“The per procedure payments during the sixth (6th) year of this Agreement as extended by the Cobalt Reloading Period ( i.e., from March 17, 2003 through April 7, 2004) shall be determined as follows:
“Annual Procedures | Per Procedure Payment |
1-100 | $8,200 |
101-125 | $7,000 |
1 26- 150 | $6,000 |
151 + | $5,000 |
“The per procedure payments during the seventh (7th) year of this Agreement and during each subsequent year thereafter through the expiration of this Agreement ( i.e . , from April 8, 2004 through April 7, 2010) shall be determined as follows:
“Annual Procedures | Per Procedure Payment |
1-150 | $5,242 (or $5,800 if applicable pursuant to Section 8(e) below) |
151 + | $4,000 |
“Notwithstanding anything to the contrary set forth herein, (a) for purposes of determining the per procedure payment, the number of annual procedures performed shall be reset t o zero (0) on March 17, 2003, on April 8, 2004, and on each April 3th thereafter through the expiration of this Agreement ; and (b) there shall be no retroactive adjustment of the per procedure payment irrespective of whether the number of procedures performed reaches a l ower per procedure payment le ve l. For example, if 155 procedures are performed during the eighth year, Hospital would pay $5,242 for each of the first 150 procedures, and $4,000 for each of the next five procedures (i.e. , for procedures 151 through 15 5).
“If no procedures are performed utilizing the Equipment, no charges sha ll be incurred by Hospital.
“A procedure shall be defined as a sing le patient treatment session that may include one or more isocenters during that session. Hospital shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively. Hospital shall pay the procedures invoiced within thirty (30) days after being invoiced. Interest shall accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days . ”
6. | Paragraph 8(e) of the Original Lease shall be deleted in its entirety and replaced with the following : |
(e) | Use best efforts to develop and implement an ongoing marketing program that is specific to the Equipment (the “Marketing Program”), which shall include, without limitation (i) providing reasonable and customary marketing materials (i.e. , brochures, announcements, seminars for physicians by neurosurgeons and radiation therapists, etc.) for the Gamma Knife service to be operated by the Hospital; and (ii) employing an individual, who shall be employed only after consultation with GKF, whose primary responsibility shall be to provide marketing services for the Gamma Knife service to be operated by the Hospital (the “Marketing Employee”). All of the costs and expenses of the Marketing Program, including, without limitation, all compensation paid to the Marketing Employee, shall be borne solely by Hospital. |
The Marketing Program including, without limitation, all advertisements, brochures and other marketing materials, shall be subject to review by GKF prior to their use. Hospital and GKF shall discuss the Marketing Program on a regular basis, which shall be not less than once per month. In the event Hospital materially fai ls to provide marketing efforts under the Marketing Program generally consistent with the level and scope of such efforts, as made by Hospital during its 2003 fiscal year, and such material failure continues for at least thirty (30) calendar days, GKF at is option may either (i) terminate this Agreement upon providing Hospital with thirty (30) calendar days written notice ; or (ii) upon providing fifteen (15) calendar days written notice to Hospital, increase the per procedure payments owed by Hospital from $5,242 per procedure to $5,800 per procedure for each of the first one hundred fifty (150) procedures during the seventh (7th) year of this Agreement and during each subsequent year thereafter through the expiration of this Agreement (i.e. , from April 8, 2004 through April 7, 2010) subject to the procedures set forth in Section 6 of this Agreement.
6. | Paragraph 17 of the Original Lease shall be deleted in its entirety and replaced with the following: |
“17. | Options . |
“(a) Hospital shall have the option, exercisable as set forth below to:
“(i) Renegotiate this Agreement on terms mutually agreeable to GKF for a specified renewal term taking into account the first twelve (12) years of activity of the Equipment at the Site . Pursuant to Paragraph 17(a)(ii), if terms and conditions of an extension are not executed by both parties by the end of the eleventh (11th) year of the Gamma Knife Service Term (as extended by the Cobalt Reloading Period (i.e., April 7, 2009), this Agreement shall terminate. Both parties shall negotiate in good faith on the terms and conditions of an extension of this Agreement.
“(ii) Terminate this Agreement. If Hospital fails to renew this Agreement as provided in Paragraph 17(a)(i) above, GKF shall, at its sole expense remove the Gamma Knife within a reasonable period of time after the expiration of the Gamma Knife Service Term . Hospital shall cooperate in good faith in such removal.
“(iii) Purchase the Equipment from GKF at the end of the Gamma Knife Service Term, at a price equal to One Dollar ($1.00) if at least one thousand seven hundred (1,700) paid procedures have been performed during the Gamma Knife Service Term.
“(iv) Purchase the Equipment from GKF at the end of the Gamma Knife Service Term at a price equal to 80% of its Fair Market Value. Should Hospital pay for the cost to reload the Cobalt on the Equipment during the original Gamma Knife Service Term, any increase in Equipment value attributed to Cobalt reloading will be excluded from determining the Equipment's Fair Market Value.
“Hospital shall exercise one (1) of the four ( 4) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3700, San Francisco, California, 94111, by certified mail, return receipt requested, postmarked on or before the end of the eleventh (11th) year of the Gamma Knife Service Term (as extended by the Cobalt Reloading Period (i.e., April 7, 2009). Any such notice shall be sufficient if it states in substance that Hospital elects to exercise its option and states which of the four (4) options referred to above Hospital is exercising.
7. Full Force and Effect . Except as otherwise amended hereby or provided herein, all of the terms and provisions of the Original Lease shall remain in full force and effect. Notwithstanding the foregoing, to the extent of any conflict or inconsistency between the terms and provisions of this Amendment and that of the Original Lease, the terms and provisions of this Amendment sha ll prevail and control.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the Effective Date.
“HOSPITAL” | “GKF” | |||
Methodist Healthcare System of San Antonio, Ltd, d/b/a Southwest Texas Methodist Hospital |
GK Financing, LLC | |||
By: | / s / Craig K. Tagawa | |||
By: | / s / James C. Scoggin, Jr. | Craig K. Tagawa | ||
Name: | James C. Scoggin, Jr. | Chief Executive Officer | ||
Title: | Executive Vice President | |||
Approved as to Form: | ||||
By: | / s / Elizabeth Henry | |||
Elizabeth Henry | ||||
General Counsel |
Exhibit 10.3
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT on April 10, 1997 (hereinafter referred to as the “Agreement”) is entered into between GK FINANCING, LLC, a California Limited Liability Company (hereinafter referred to as “GKF”) and YALE-NEW HAVEN AMBULATORY SERVICES CORPORATION, a Connecticut Corporation (hereinafter referred to as “Yale”).
RECITALS
WHEREAS, Yale wants to lease a Leksell Stereotactic Gamma Unit, also known as the Leksell Gamma Knife Model 23004 (B-type) which is technically specified in “Exhibit A” to the LGK Agreement (hereinafter defined) which is “Exhibit A” to this Lease Agreement, all of which technical specifications are incorporated herein and referred to collectively as the “Equipment” from GKF and further desires from GKF certain marketing support related to promotion and utilization of said Equipment; and
WHEREAS, GKF is willing to purchase the Equipment distributed by Elekta, Inc., a Georgia corporation (hereinafter referred to as “Elekta”) and lease the Equipment to Yale pursuant to the terms and conditions of this Agreement and is further willing to provide to Yale marketing support.
NOW THEREFORE , in consideration of the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Yale and Elekta . Yale agrees that simultaneously with the execution of this Agreement it shall enter into that certain LGK Agreement with Elekta and GKF (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as “Exhibit A” and incorporated herein by reference. Yale agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement.
2. Certificate of Need . The parties hereto acknowledge that the installation and use of the Equipment by Yale is conditional upon the issuance of a Certificate of Need (hereinafter “CON”) by the Connecticut Commission on Hospitals and Health Services. Yale will use all reasonable efforts to obtain a CON, however, in the event a CON is denied or its issuance is conditioned upon circumstances or events beyond Yale1s reasonable control , then in such event this Agreement shall be rendered null and void and all parties shall thereafter be excused from performing any obligation or duty hereunder.
3. Delivery of the equipment and Site Preparation . GKF shall arrange to have the Equipment delivered to Yale and installed at Temple Medical Center, New Haven, Connecticut (the “Site”) in coordination with Elekta. Elekta shall be responsible for transporting the Equipment from F.O.B. loading dock to the Site and the subsequent positioning of the Equipment, as well as, construction of the temporary hot cell to facilitate charging of the Equipment with its cobalt supply. Elekta has provided Yale with a written estimate for the costs associated with transporting, installing and positioning the Equipment on Site, as well as, construction of the temporary hot cell to facilitate charging of the Equipment with its cobalt supply. Actual costs of transporting, installing and positioning the Equipment shall be reimbursed by Yale. GKF shall use its best faith efforts to expedite the delivery of the Equipment in accordance with the terms and conditions of the Purchase Agreement for the Equipment by and between GKF and Elekta. Notwithstanding the preceding sentence, it is understood and agreed that GKF has made no representations or warranties to Yale concerning actual delivery dates or schedules for the Equipment at the Site. GKF shall coordinate with Yale the estimated delivery date of Equipment.
Yale shall prepare and provide the Site, at its own expense, in accordance with Elekta's Site Planning Criteria (which Site Planning Criteria are attached to the LGK Agreement as “Exhibit B” thereto and incorporated herein by reference) pursuant to site plans and specifications to be prepared by Yale and submitted to Elekta and GKF for prior written approval.
Yale shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance tests, and the use of the Equipment all as more fully set forth in Article 2.1 of the LGK Agreement.
4. Term. The term of this Agreement (the “Term”) shall commence as of the date hereof and unless earlier terminated in accordance with the provisions of this Agreement, shall continue for the period of ten (10) years following the date of performance of the first billed Gamma Knife procedure at the Site (the “First Procedure Date”). Yale shall become liable to GKF for the GKF monthly reimbursement as hereinafter defined in paragraph 7 upon the First Procedure Date.
5. Costs of Site Preparation: Costs of Installation . Yale shall, at its own expense , prepare, construct and make ready the Site in accordance with the Site plans previou s ly approved by Elekta and GKF pursuant to paragraph 3 hereof, for the installation of the Equipment.
Yale shall, at its own expense, select, purchase, install and maintain all radiation monitoring equipment and 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 the Site Planning Criteria and the applicable federal , state and local laws and regulations.
Yale warrants that upon completion of the Site, it will comply with the Site Planning Criteria and the site plans and specifications referred to in paragraph 3 above.
Yale shall be liable for any damages to the Equipment caused by:
(a) Its failure to construct the Site in accordance with the plans and specifications referred to in paragraph 3 above and the Site Planning Criteria; or
(b) Negligent or intentional acts of omission or commission by Yale or any of its officers, agents, physicians or employees in connection with the construction of the Site.
Yale shall utilize its best efforts to fulfill on an expeditious basis its obligations under this paragraph 5, and keep GKF informed of Yale's progress in fulfilling its obligations pursuant to this paragraph 5. Should Yale not have all Site preparations complete by the mutually agreed upon delivery date specified by a separate agreement between the parties, plus a sixty (60) day grace period such that the Site is acceptable for positioning and installation of the Equipment, Yale shall reimburse GKF at an interest rate of Bank of America's prime rate plus two percent (2%) on GKF's equipment cost from such agreed delivery date until the Site is prepared to allow positioning and installation of the Equipment. Should GKF not deliver the Equipment to Yale on the later of the above scheduled delivery date plus a sixty (60) day grace period or when Site is ready to accept the Equipment, GKF shall reimburse Yale at an annual interest rate of Bank of America's prime rate plus two percent (2%) on its actual cost expended to prepare the Site until the Equipment is installed at the Site.
6. Marketing Support . GKF will provide marketing support for the Gamma Knife service in coordination with Yale.
7. Reimbursement to GKF . As its sole consideration for the Lease of the Equipment and GKF's provision of certain marketing and administrative support service, Yale shall pay GKF as follows:
GKF shall receive a pro-rata share of net technical component revenues associated with Gamma Knife treatment less Direct Operating Expenses associated with providing Gamma Knife treatment. All Direct Operating Expenses incurred by GKF and Yale shall be paid from the net technical component revenues prior to any reimbursement distributions to GKF hereunder. Direct Operating Expenses shall include the following expenses incurred by Yale: fees payable to a consulting physicist, professional fees, management fees directly related to the operation of the Equipment, space rent, utilities, Registered Nurse cost allocation, insurance, billing cost allocation, direct support staff cost allocation, marketing costs and direct sundry expenses. Direct Operating Expenses shall also include the following expenses incurred by GKF: maintenance and repairs, personal property taxes, sales and use tax, insurance and direct sundry expenses.
The amount due to GKF hereunder shall be determined and paid on a monthly basis throughout the initial Te1m and any successive Terms, and thereafter to the extent any technical component revenues associated with Gamma Knife treatments during the Term or any successive Term of the Lease are received subsequent to termination of the Lease. Within ten days after the last day of each calendar month of the initial Term and any successive terms (and upon the te1mination or expiration of the initial Term or any subsequent term with respect to a period shorter than a calendar month) each party shall submit to the other a statement setting forth such party's portion of the Direct Operating Expenses, and the parties shall calculate the Direct Operating Expenses with respect to such month (or portion thereof). The parties shall also calculate the net technical component of revenues (determined on a cash basis) with respect to cash receipts for Gamma Knife treatments paid in such month; and within ten days after the conclusion of such month or p01tion thereof Yale shall provide to GKF all revenue data necessary to perform such calculation. The GKF shares of such revenues for such month (or portion thereof) is referred to herein as the 11 GKF Monthly Reimbursement”.
The pro-rata share of net technical component revenues less Direct Operating Expenses due GKF (The GKF Monthly Reimbursements) shall be computed as a percentage of GKF's equipment acquisition cost (Equipment cost, sales tax and customs and duty) to the total project cost (GKF's equipment cost plus Yale's cost to prepare the Site and install the Equipment in accordance with paragraph 5 plus Yale's cost to obtain the CON and any other needed regulatory approval for the Gamma Knife) plus Yale's pre-opening marketing costs, after Elekta's Fifty Thousand and 00/100 ($50,000.00) Dollar marketing contribution to this project (refer to Section 8.5 of “Exhibit A”). The GKF Monthly Reimbursement shall be due and payable by Yale fifteen (15) days after GKF submits to Yale its statement setting forth its portion of Direct Operating Expenses for such month.
On or before the First Procedure Date, the parties shall execute a preliminary amendment to this paragraph 7 setting forth GKF's equipment cost, Yale's cost to install the Equipment and Yale's cost to obtain the CON for the Gamma Knife and Yale's pre-opening marketing costs. Each party shall first provide to the other documentary proofs of expenditure to justify the amounts claimed for such costs. A final cost accounting of these aforementioned costs shall be completed and documented in a final amendment to this paragraph 7 no later than six months after the First Procedure Date.
The technical fees to be billed for Gamma Knife procedures performed from time to time during the term of this Agreement shall be an amount which is economically justifiable based upon each party's Direct Operating Expenses (as described hereinabove), the total project costs (as described hereinabove) together with a return thereon, utilization of the Equipment and payments made by third party payers to Yale from time to time for Gamma Knife procedures. Yale shall consult with GKF from time to time regarding the amount of the technical foes to be billed by Yale for Gamma Knife procedures and any revisions thereto; however, subject to compliance with the standard described in the preceding sentence, Yale shall not be required to obtain the consent of GKF to set or revise the amount of the technical fees.
With respect to any period for which net technical component revenues associated with Gamma Knife treatment are equal to or less than Direct Operating Expenses associated with providing Gamma Knife treatment, GKF shall be entitled to no reimbursement other than for Direct Operating Expenses incurred by GKF, to the extent available. Further, the excess of Direct Operating Expenses over net technical component revenues for any such period shall be paid when incurred by Yale to the extent of the Yale Percentage, as hereinafter defined in paragraph 11 and by GKF to the extent of the GKF Percentage as hereinafter defined in paragraph t 1.
Throughout the initial Term and any successive terms, and thereafter until final settlement of all amounts owed to or claimed by either party under this Agreement, each party shall have the right to inspect, audit and copy the other party's books and records which relate to the accounting for and calculation of revenues from the provision of Gamma Knife procedures, Direct Operating Expenses, project cost, Yale's cost to install the Equipment and Yale's cost to obtain the CON for the Gamma Knife and GKF's equipment acquisition cost.
8. Use of the Equipment . The Equipment may be used by Yale only at the Site and shall not be removed therefrom. Yale shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF, which consent shall not be unreasonably withheld. No permitted assignment or sublease shall relieve Yale of any of its obligations hereunder. Yale shall not use nor permit the Equipment to be used in any manner nor for any purpose for which the Equipment is not designed or reasonably suitable. Yale shall not permit any liens whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. Yale shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Yale shall at GKF's request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
9. Additional Covenants of Yale . In addition to the other covenants made by Yale, Yale shall, at its own cost and expense:
(a) | Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment. |
(b) | Monitor all patients' condition and treatment. |
(c) | Fully comply with all of its obligations under the LGK Agreement. |
(d) | To the extent any loss realized by GKF is not fully covered by insurance, indemnify GKF as herein provided: |
(i) | Yale shall indemnify, hold harmless and/or reimburse GKF on a prompt basis for any and all damage to the Equipment, reasonable wear and tear excepted (including any dan1age relating to or arising out of violations by Yale, its agents, officers, physicians, employees, successors and assigns of the Services Agreement described in paragraph 16 hereof), together with reasonable attorney fees incurred by GKF to establish or enforce its right to indemnity hereunder, to the extent the damage (or a portion thereof) is caused by the negligent or wrongful acts or omissions of Yale, its agents, officers, directors, physicians, employees, successors or assigns. Yale shall not be obligated to indemnify GKF hereunder to the extent the damage (or a portion thereof) is caused by the negligent or wrongful acts or omissions of GKF or its agents, officers, directors, employees, successors or assigns. In the event the Equipment is destroyed or rendered unusable, this indemnification shall extend up to the full replacement value of the Equipment at the time of its destruction less salvage value , if any. |
(ii) | Yale shall indemnify, hold harmless and/or reimburse GKF for any loss, claim, liability or damage (collectively “damages”) which GKF may suffer or incur, and for reasonable attorneys fees incurred by GKF to defend itself against such damages or to establish or enforce its rights to indemnity hereunder with respect to the events or occurrences described in Section 7.3 of the LGK Agreement to the same extent that Yale agrees to indemnify Elekta thereunder. Notwithstanding the foregoing in no event shall liability of Yale hereunder cause or result in a recovery in favor of GKF which is duplicative of any damages paid directly to Elekta. |
(iii) | Yale shall indemnify, hold harmless and/or reimburse GKF for any damages (as defined in sub-part (ii) above) and for reasonable attorneys fees incurred by GKF to defend itself against such damages or to establish or enforce its right to indemnity hereunder which GKF may suffer or incur as a result of Yale's breach of the LGK Agreement. Notwithstanding the foregoing in no event shall liability of Yale hereunder cause or result in a recovery in favor of GKF which is duplicative of any damages paid directly to Elekta. |
(e) | Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.) and marketing support. |
10. Additional Covenants, Representations and Warranties of GKF . In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) | GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF. |
(b) | GKF represents and warrants to Yale that, upon delivery of the Equipment to Yale, GKF shall use its best faith efforts to require that Elekta places the Equipment in service, as soon as possible , consistent with all reasonable safety precautions, in accordance with the manufacturer's specifications, guidelines and field modification instructions. |
(c) | GKF represents and warrants that throughout the term of this Agreement, Yale shall peaceably enjoy the use of the Equipment, free of the rights of any other persons except for those rights reserved by GKF in this Agreement or granted to Elekta under the LGK Agreement or under Elekta's Purchase Agreement with GKF, a full and complete copy of which has been provided to Yale and incorporated as an exhibit to the LGK Agreement. |
(d) | During the entire term of this Agreement and subsequent extensions thereof: GKF shall maintain at its sole cost the Equipment to Elekta's specifications and shall maintain in full force and effect: (1) the Service Agreement referenced in paragraph 16 hereof and (2) any other service or other agreements required to fulfill GKF's obligations to Yale pursuant to this paragraph 10(d). Unless Yale elects in its sole discretion to pursue any warranty claim directly against Elekta, GKF represents and warrants that during the entire term of this agreement and any subsequent extensions hereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the Equipment's specifications and/or Elekta's warranties to GKF. In no event, however, shall the warranty obligation of GKF to Yale with respect to the Equipment be greater or more extensive than Elekta’s warranty obligations to GKF with respect to the Equipment. |
11. Ownership / Title . Except as hereinafter provided, it is expressly understood that Yale shall acquire no right, title or interest in or to the Equipment, other than the right to quietly and peacefully possess and use the same in accordance with the terms of the Agreement. Upon termination of this Agreement (whether by expiration or early termination) Yale shall be granted a percentage ownership interest in the Equipment equal to the percentage that Yale's co s t to install the Equipment at the Site, Yale's cost to obtain the CON for the Gamma Knife and Yale's preopening marketing costs is to the total project cost (the “Yale Percentage”). Upon termination of this Agreement, GKF shall be granted an ownership interest in those leasehold improvements at the Site which can be removed on termination of this Agreement without any damage to the Site equal to the percentage that GKF’s equipment cost is to the total project cost (the “GKF Percentage”). The total project cost for the purposes of this paragraph shall be equal to GKF's equipment cost (equipment acquisition cost, sales tax and customs and duty) plus Yale's cost to install the Equipment at the Site, its cost to obtain the CON for the Gamma Knife and Yale's pre-opening marketing costs. The grant of an ownership interest to Yale under this paragraph shall be subject to the condition that , at the termination of the Agreement, Yale must pay a percentage of the total cost to relocate the Equipment equal to the Yale percentage. Yale's ownership interest in the Equipment shall be subject to a security interest in the Equipment of any and all entities that provide financing to GKF with respect to the Equipment.
The Equipment may be subject to a security interest in favor of Elekta to secure the purchase price for the Equipment due to Elekta. Upon payment of the full purchase price to Elekta and release of its security interest, GKF may in its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a capitalized lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan , GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease title shall vest with the lessor until GKF exercises its buy-out option. Yale's interest shall be subject to the interests of Elekta and thereafter any financing entity. GK F , as a condition of this Agreement, shall provide to Yale complete copies of all financing documents prior to execution and shall cause Elekta and any subsequent financing entity to notify Yale within ten (10) business days of any payment defaults on the loan / lease agreement for the Equipment installed at the Yale Site (Payment Default). In the event of a Payment Default by GKF, GKF's Monthly Reimbursement shall not be paid to GKF until the Payment Default i s cured. Unless Yale exercises its right of assumption of the GKF financing as hereinafter provided, Yale shall pay all withheld Monthly Reimbursement payments to GKF forthwith upon receiving written notice from the secured party that Payment Default has been cured by GKF. In the event a Payment Default remains uncured by GKF for a period of thirty (30) days after written notice thereof is received by Yale, Yale in its sole discretion, may cure the Payment Default by paying the amount owing to the holder of any security interest in the Equipment (“Secured Party”), and assuming and agreeing to be bound by all terms and covenants of the financing: provided that (i) in the event GKF's financing covers Leksell Gamma Knife units other than the Equipment that is the subject of this Agreement, the financing assumed by Yale shall be limited to the portion thereof that relates to the Equipment; (ii) the amount of the financing assumed by Yale shall not exceed the amount of the original purchase price of the Equipment as set forth in Elekta's Purchase Agreement with GKF (exclusive of any interest, late fees or other costs or charges that may have been imposed by the Secured Party and added to the outstanding principal balance thereunder); (iii) such financing assumed by Yale shall not be cross-defaulted with any other collateral security other than the Equipment, this Agreement or any property or other interests related thereto; and (iv) Yale shall give written notice to GKF and the Secured Party upon the exercise of its election to satisfy the Payment Default and assume the financing. The Secured Party must enter into an estoppel and subordination agreement with Yale at or prior to the time GKF enters into any financing of the Equipment (other than with respect to Elekta which shall enter into such estoppel and subordination agreement with Yale within sixty (60) days following the execution of this Agreement by the parties) wherein the Secured Party's rights in the Equipment shall be fully subordinate and subject to the rights of Yale to cure any such default and assume GKF's obligations under the financing as set forth above (subject to the reasonable approval by the Secured Party of Yale's financial status); provided that, in the event Yale does not elect to cure such default and assume and agree to be bound by all terms and covenants of such financing within thirty (30) days after notice of a Payment Default is received by Yale as set forth above, the Secured Party shall thereupon be entitled to exercise all of its 1ights as a secured party pursuant to the terms and provisions of its financing documents. In the event Yale exercises its right of assumption upon default by GKF, all rights of redemption in and to the Equipment shall thereafter vest solely in Yale, and GKF shall have no further right to any payments under paragraph 7 hereof. Further, in the event of default by GK.F and the exercise by Yale of its right of assumption of the GKF financing as hereinabove provided, GKF shall have waived all right, title and interest in and to the GKF Percentage and to any and all equity it may have previously had in and to the Equipment, and Yale shall have no obligation to resell the Equipment or take any action to preserve or protect such equity in the Equipment as GKF may have. The exercise by Yale of any rights or remedies it may have hereunder shall be deemed to be commercially reasonable.
11.1. Right of First Refusal . If, at any time or from time to time during the terms of this Agreement, Yale desires to purchase, lease or otherwise acquire one or more additional Leksell Gamma Knife units for use or operation within the State of Connecticut , Yale shall provide to GKF no less than sixty (60) days prior written notice of its intended purchase, lease or acquisition (the “Option Notice”). In the event Yale's desire is to lease any such Leksell Gamma Knife, for sixty (60) days following GKF's receipt of the Option Notice, GKF shall have the exclusive option and right to purchase, lease or acquire such Leksell Gamma Knife and to lease such Leksell Gamma Knife to Yale on the same terms and conditions as are set forth in this Agreement. In the event Yale's desire is to acquire any such Leksell Gamma Knife other than by lease, for sixty (60) days following GK.F's receipt of the Option Notice, GKF shall have the exclusive option and right to so acquire such Leksell Gamma Knife jointly with Yale. Exercise of the foregoing option by GKF shall be accomplished by giving written notice of exercise (the “Exercise Notice”) to Yale dated on or before the expiration of sixty (60) days following receipt of the Option Notice by GKF. Within ninety (90) days following receipt of the Exercise Notice by Yale, (i) with respect to the lease of such Leksell Gamma Knife by Yale, GKF and Yale shall enter into a lease agreement on the same terms and conditions as are set forth in this Agreement, or (ii) with respect to the acquisition of such Leksell Gamma Knife other than by lease, GKF and Yale shall enter into such other agreement pertaining to such acquisition on terms and conditions as shall be mutually agreed upon between GKF and Yale, provided that in the event the parties are unable to agree upon the terms and conditions of such other agreement within such 90-day period, the pa1iies shall submit the matter to arbitration as set forth in Section 29(e) below. In the event GKF fails to exercise its option within such sixty (60) day period, Yale may purchase, lease or acquire such Leksell Gamma Knife independent of GKF , provided that such purchase, lease or acquisition shall be limited only to the Leksell Gamma Knife unit referenced in the Option Notice. The parties agree that a violation of the terms of this Section 11.1 may be enforced by way of an action for preliminary and permanent injunctive relief since monetary damages may be difficult to ascertain.
12. Cost of Use of the Equipment . Except as is otherwise provided herein and subject to Yale's 1ight to charge Direct Operating Expenses against technical component revenues under paragraph 7 above, Yale shall bear the entire cost of the operation of the Equipment during the Term of thi s Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. Yale shall be fully responsible and liable for all acts and/or omissions of such professional, technical and support personnel.
13. Taxes . GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, including sales and use tax, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of Yale.
14. Maintenance and Inspections . GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a good state of repair consistent with Elekta's specifications and the intended use of the Equipment, reasonable wear and tear excepted. Yale shall be liable to GK.F for all damage to the Equipment caused by the misuse, negligence, improper use or other intentional or negligent acts or omissions of Yale's employees, officers, agents and physicians (not employed by GKF or Elekta).
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to Yale's operations. In the event the Equipment is improperly used by Yale or its employees, agents , officers and physicians, GKF may service or repair the same as needed and such expense shall be paid by Yale, unless the repair is covered by the Service Agreement described in paragraph 16 hereof.
15. Equipment Modifications / Additions / Upgrades . The parties agree that the necessity and financial responsibility for modifications / additions / upgrades to the Equipment, including the reloading for the Cobalt-60 source, shall be discussed and mutually decided by GKF and Yale. If GKF and Yale agree to reload the Cobalt-60 source (in approximately Year 8 of the initial Term), GKF and Yale shall share in the expenses of this Cobalt-60 reload in the same proportions as they share in revenues and expenses as calculated under paragraph 7. If a reloading of the Equipment occurs, the original term shall be extended by eight (8) years less the number of years remaining in the original term.
16. Service Agreement . GKF warrants that it shall simultaneously with the execution of this Agreement enter into and be solely responsible for the costs of a Service Agreement with Elekta (the “Service Agreement”), a copy of which is annexed to Elekta's Purchase Agreement with GKF as “Exhibit F11 GKF shall obtain from Elekta the right to assign GKF's rights under the Service Agreement to Yale, which assignment shall be made upon Yale's written request for the same. In no event shall such assignment relieve GKF from its obligation to pay all costs associated with the Service Agreement.
17. Termination . The Agreement may be terminated after the initial eighteen (18) month period of service, and after each subsequent twelve (12) month period of service, upon mutual agreement by the parties.
18. Options to Extend Agreement .
(a) Yale shall have the option at the end of the ten (10) year initial Term to:
(1) Extend the term of the lease under this Agreement for
an additional term of five (5) years under the same terms and conditions as are set forth herein.
(2) Terminate this Agreement. If Yale terminates this Agreement at the end of the initial Tem1, GKF shall remove the Gamma Knife within an agreed upon period of time after the expiration of the (10) year initial Term.
Yale shall exercise one (1) of the two (2) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California 94111, by certified mail, postmarked on or before the end of the ninth (9th) year of the initial Term of this Agreement. Any such notice shall be sufficient if it states in substance that Yale elects to exercise its option and states which of the two (2) options referred to above Yale is exercising.
19. No Warranties by GKF . As of the First Procedure Date, Yale shall have thoroughly inspected the Equipment. Provided that all manufacturer's warranties are assigned to Yale with the written consent of Elekta and without waiving any rights Yale has under this Agreement to require GKF to provide a Service Agreement to service and maintain the Equipment, Yale agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. Any and all warranties made by Elekta will be enforced by GKF in its good faith best efforts on behalf of Yale during the ten ( 10) year initial Term hereof.
GKF SUPPLIES THE EQUIPMENT “AS IS” AND NOT BEING THE MANUFACTURER OF THE EQUIPMENT OR THE MANUFACTURER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE EQUIPMENTS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR THE LIKE.
GKF shall not be liable for any direct, indirect or consequential losses or damages resulting from operation or use of the Equipment by Yale.
20. Events of Default by Yale and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) | Yale fails to make payment required pursuant to Paragraph 7 when due and such default continues for a period of thirty (30) days after written notice thereof from GKF or its assignee is given to Yale. |
(b) | Yale attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein. |
(c) | Yale shall fail to observe or perform any of the other obligations required to be observed or performed by Yale hereunder and such failure shall continue uncured for twenty (20) days after the expiration of a reasonable time necessary to cure such default has lapsed and written notice thereof has been received by Yale; |
(d) | Yale ceases doing business, 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. |
(e) | Within sixty (60) days after the commencement of any proceedings against Yale seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under m1y present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Yale'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. |
Upon the occurrence of an Event of Default, GKF may, at its option, do any or all of the following: (i) by notice to Yale, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Yale and Yale hereby agrees to return the Equipment to GKF at Yale's sole cost and expense; (ii) recover from Yale, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Yale to GKF through the end of the then current Agreement term less the reasonable salvage value of the Equipment discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior twelve (12) months' lease payments with an annual five percent (5%) increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Yale shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event that Yale shall have paid to GKF the liquidated damages referred to in (ii) above, GKF hereby agrees to pay to Yale 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 expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Yale). Yale agrees that GKF shall have no obligation to sell the Equipment. Yale shall, in any event, remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to all court costs and reasonable attorney's fees.
21. Events of Default by GKF and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) | GKF fails to enter into and maintain in force the Service Agreement as required under paragraph 16 hereof. |
(b) | Elekta or any successor Secured Party declares GKF in default of any financing agreements entered into by GKF to finance the acquisition of the Equipment. |
(c) | GKF fails to observe or perform any other obligation required to be observed or performed by GKF hereunder and such failure shall continue uncured for twenty days after the expiration of a reasonable time necessary to cure such default has lapsed and written notice thereof has been received by GKF. |
(d) | GKF ceases doing business, 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. |
(e) | 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. |
Upon the occurrence of an Event of Default described in subparagraph (b) above, Yale's exclusive remedy shall be that described in paragraph 11 above. Upon the occurrence of any other Event of Default, Yale may, at its option, do any or all of the following: (i) by notice to GKF terminate this Agreement as to the Equipment and, in such event, GKF shall remove the Equipment at GKF's sole cost and expense or, in the absence of removal by GKF within a reasonable period of time after written request therefor, Yale may remove the Equipment with all due care and store the Equipment at GKF's sole cost and expense; and (ii) recover from GKF such reasonable damages as may be realized by Yale as a result of such breach or default. GKF shall also be liable for all costs and expenses incurred by Yale on account of any such default, including but not limited to all court costs and reasonable attorney's fees. Except as provided in the first sentence of this paragraph, the rights afforded Yale hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
22. | Insurance. |
(a) During the initial Term (and any successive terms) GK.F shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. During the initial Term of this Agreement (and any successive terms), Yale shall, at its own cost and expense, keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by Yale. Said policies shall be in the amounts of not less than $1,000,000.00 per occurrence and $5,000,000.00 in aggregate per year. Yale and GKF, their successors and assigns, shall be named as additional insureds and/or loss payees on the insurance policies maintained hereunder by the other party. All policies shall provide for a waiver of the right of subrogation as to each additional insured. Evidence of such insurance coverages shall be furnished by both parities to the other party upon written request, by no later than the First Procedure Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Yale shall give to GKF immediate notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GK.F determines that the Equipment cannot be repaired, GKF , at its sole cost and expense (subject to Yale's obligations elsewhere in this Agreement) shall promptly replace the Equipment. This Agreement shall continue in full force and effect as though such damage or destrncti9n had not occurred. In the event GKF determines that the Equipment can be repaired, GKF shall cause the Equipment to be promptly repaired.
23. Notices . Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Craig K. Tagawa, C.E.O. |
Four Embarcadero Center, Suite 3620
San Francisco, CA 94111
To Yale: | Alvin Greenberg, M.D., Administrator |
Yale New Haven Ambulatory Services Corporation 229 George Street
New Haven, CT 06510
or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
24. Integration / Supersedure . This Agreement contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
25. Waivers . To the extent that GKF fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice GKF's rights to pursue any of those remedies at any future time and shall not constitute a waiver of GKF's rights.
26. Assignments . This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this agreement without the express written consent of the other (which consent shall not be unreasonably withheld).
27. Amendments . This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
28. Record Keeping Requirements . To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Yale by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand and 00/100 [$10,000.00] Dollars or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by Yale, it being understood that, inasmuch as Yale is entering into this Agreement in reliance on GKF’s reputation and expertise, that Yale shall be the sole judge of the reputation and expertise of the proposed delegatee, and only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Yale by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relief GKF from liability hereunder.
29. Miscellaneous Provisions .
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) 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.
(d) Choice of Law. This Agreement shall be governed by, and construed, enforced and interpreted in accordance with the laws of the State of Connecticut and the laws of the United States of America applicable to transactions within the State of Connecticut.
(e) Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration to be conducted in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and Judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
YALE – NEW HAVEN AMBULATORY SERVICES CORPORATION |
GK FINANCING, LLC |
BY: /s/ Bart Price | BY: /s/ Craig K. Tagawa |
CRAIG K. TAGAWA | |
Its: President | Chief Executive Officer |
Exhibit 10.3a
ADDENDUM TO
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (the “Addendum”) is made effective as of October 25, 2005 (the “Effective Date”), and is entered into by and between YALE-NEW HAVEN AMBULATORY SERVICES CORPORATION, a Connecticut corporation (“Yale”), and GK FINANCING, LLC, a California limited liability company (“GKF”), with reference to the following recitals.
RECITALS
A. On April 10, 1997, GKF and Yale entered into a Lease Agreement For A Gamma Knife Unit (the “Lease”).
B. Section 15 of the Lease provides that the parties may discuss and mutually agree upon the upgrading or reloading of the Equipment.
C. The parties have agreed to upgrade and reload the Equipment, and desire to amend the terms of the Lease to set forth the terms and conditions of such upgrading and reloading of the Equipment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Extension of Lease Term . Notwithstanding Section 15 of the Lease, in consideration for the “Upgrade and Reload” (as defined below), the Term of the Lease is hereby extended to the earlier to occur of the following dates: (a) the date on which the Equipment is ready to be accepted for installation at the new Yale-New Haven Cancer Center currently being planned for construction (which acceptance date is anticipated to be July 1, 2009) ; or (b) January 1, 2010; provided that in no event shall GKF have any obligation to remove, relocate and/or reinstall the Equipment and/or the leasehold improvements to or at the new Yale-New Haven Cancer Center and/or to repair or restore the existing Site. All references in the Lease to the “Term” shall be deemed to refer to the Term as extended hereby.
3. Upgrade and Cobalt Reload of the Equipment . Subject to the terms and conditions set forth below, GKF shall upgrade the Equipment to a Leksell Gamma Knife Model 4C (the “Model 4C”) and reload the Equipment (as upgraded) with new cobalt-60 (the “Upgrade and Reload”), which Upgrade and Reload shall be performed at the Site and shall include any required installation and rigging. The Upgrade and Reload shall be subject to the following:
a. All actual costs and expenses (without markup or inclusion of administrative overhead) pertaining to the upgrade of the Equipment to the Model 4C shall be paid and/or reimbursed solely by Yale as and when incurred, including, without limitation, any costs and expenses pertaining to Site preparation, installation, rigging and/or obtaining of “Permits” (as defined below), irrespective of whether incurred in connection with the upgrade and/or the reloading of the Equipment. Yale shall be solely responsible for obtaining all licenses, permits, approvals, consents and authorizations necessary and appropriate for the Upgrade and Reload, including, without limitation, the proper handling of the cobalt-60 (collectively, the “Permits”). It is acknowledged that, as of October 13, 2005, GKF has paid $58, 352 toward the costs of the upgrade, which amount shall be refunded by Yale to GKF within ten (10) days following the execution of this Addendum.
b. Except as provided in subsection 3.a above, all actual costs and expenses incurred by the parties (without markup or inclusion of administrative overhead) pertaining to the reloading of the Equipment shall be borne by GKF and Yale as and when incurred, in the same proportions as net technical revenues are currently allocated under the Lease as in effect immediately prior to the execution of this Addendum, i.e. : seventy-four and eighty-one hundredths percent (74.81%) by GKF and twenty-five and nineteen hundredths percent (25,19%) by Yale. It is acknowledged that, as of October 13, 2005, GKF and Yale have paid $58,856 and $19,144, respectively, toward the costs of reloading.
c. If applicable, a party shall pay or reimburse any amount owed to the other party in accordance with the foregoing allocations within ten (10) days following receipt of a written statement from the other party. Each party shall have the right to inspect, audit and copy the other party’s books and records pertaining to the costs and expenses incurred in connection with the Upgrade and Reload.
d. Yale, at Yale’s sole cost and expense, shall provide GKF with Yale personnel (including Yale physicists) and services upon request and as required by GKF, among other things, to oversee, supervise and assist with construction and compliance with local, state and federal regulatory requirements and with nuclear regulatory compliance issues and the calibration of the Model 4C.
e. The Upgrade and Reload shall be performed by GKF as soon as practical after the Permits have been obtained. The timing and procedure for the Upgrade and Reload shall be as mutually agreed upon between the parties which is anticipated but not guaranteed to be performed in or around December 2005.
f. Immediately following the Upgrade and Reload, all references in the Lease to the “Equipment” shall be deemed to mean the Model 4C. Notwithstanding anything to the contrary contained herein, GKF makes no representation or warranty to Yale concerning the Upgrade and Reload, and GKF shall have no obligation to pay any damages to Yale resulting therefrom.
4. Lease Payment to GKF .
a. In consideration for the payment by Yale of all costs and expenses pertaining to the upgrade of the Equipment as set forth above, effective from and after the date on which the first billed Procedure is performed using the Model 4C (as reloaded) (the “New First Procedure Date”) through the duration of the Term of the Lease (as extended), GKF’s pro-rata share of net technical component revenues associated with Gamma Knife treatment less Direct Operating Expenses associated with providing Gamma Knife treatment (the “GKF Percentage”), as set forth in Section 7 of the Lease, shall be amended to equal approximately sixty-four and thirty-five hundredths percent (64.35%), subject to adjustment for actual installation costs incurred by Yale in connection with the upgrade of the Equipment (without markup or inclusion of administrative overhead), as reasonably approved by both parties.
b. Notwithstanding the New Procedure Date, the compensation payable to GKF for the lease of the Equipment pertaining to Procedures performed prior to the New First Procedure Date, shall be calculated and paid in accordance with the same GKF Percentage in effect immediately prior to this Addendum (i.e., 74.81%), irrespective of whether the technical component revenues or Direct Operating Expenses pertaining to such Procedures are collected or paid after the New First Procedure Date.
c. Notwithstanding anything to the contrary set forth in the Lease, following the termination or expiration of the Lease, and within ten (10) days following the end of each month (or portion thereof) thereafter, Yale shall continue to pay compensation to GKF for Procedures performed during the Term of the Lease until all technical fees billed for all such Procedures have been collected by Yale, its agents, representatives or affiliates or until the date that is eighteen
(18) months following the termination or expiration of the Lease (as extended), whichever occurs first (the “Post- Termination Period”) ; provided that, for purposes of calculating the compensation to be paid to GKF during the Post- Termination Period, no Direct Operating Expenses shall be deemed to have been incurred by either party during such period.
5. No Responsibility for Additional Upgrades or Reloading . It is understood by the parties that GKF is not responsible for any additional upgrades, hardware, cobalt reloading, software changes and/or other modifications to the Model 4C except as expressly set forth herein or otherwise agreed upon in writing by Yale and GKF.
6. Option To Purchase GKF’s Ownership Interest In The Equipment .
a. Upon the expiration of the Term of the Lease (as extended), Yale shall have the option to purchase GKF’s ownership interest in the Equipment (the “Purchase Option”) for a purchase price of One Million Dollars ($1,000,000) (the “Option Purchase Price”). The Option Purchase Price shall be paid in full in cash to GKF upon the expiration of the Term of the Lease (as extended), upon which GKF shall quitclaim all of its right, title and interest to Yale, on an “as is, where is” basis, without representation or warranty, with all faults. Upon the expiration or termination of the Lease, it is understood that GKF shall have no obligation with respect to the removal, relocation, reinstallation and/or repair of the Equipment and/or the leasehold improvements.
b. The Purchase Option may be exercised by Yale by giving GKF written notice thereof, which notice shall be received by GKF not less than ninety (90) days prior to the expiration of the Term of the Lease (as extended). Such written notice may be delivered by hand or sent by certified mail, return receipt requested to GKF at the following address: GK Financing, LLC, Four Embarcadero Center, Suite 3700, San Francisco, CA 94111, Attn: Mr. Craig K. Tagawa, Chief Executive Officer.
c. Concurrently with the execution of this Addendum, Yale shall deposit with GKF the sum of (One Hundred Thousand Dollars ($100,000) (the “Deposit”), which Deposit shall be credited towards the payment of the Option Purchase Price, if applicable. If the Purchase Option is not exercised by Yale, then, within ten (10) days following the expiration of the Lease, GKF shall return the Deposit to Yale. The Deposit shall not bear interest and may be commingled with GKF’s general funds.
7. Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum.
8. Full Force and Effect . Except as amended and/or supplemented by this Addendum, all of the terms and provisions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the date first written above.
GK FINANCING, LLC |
YALE-NEW HAVEN AMBULATORY
SERVICES CORPORATION |
|||
By: | /s/ Craig K. Tagawa | By: | /s/ Marna Borgstrom | |
Name: | Craig K. Tagawa | Name: | Marna Borgstrom | |
Title: | Chief Executive Officer | Title: | President/CEO |
Exhibit 10.3b
ASSIGNMENT, ASSUMPTION AND AMENDMENT OF LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ASSIGNMENT, ASSUMPTION AND AMENDMENT OF LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Amendment”) is made effective as of the close of business on June 30, 2006 (the “Amendment Effective Date”) and is entered into by and among Yale-New Haven Ambulatory Services Corporation , a Connecticut corporation (“ASC”), Yale-New Haven Hospital, Inc. a/k/a Yale-New Haven Hospital, a Connecticut corporation (“YNHH”) and GK Financing, LLC, a California limited liability company (“GKF”).
RECITALS
WHEREAS, on April 10, 1997 GKF and ASC entered into a Lease Agreement For A Gamma Knife Unit (the “Lease”), which Lease was amended pursuant to an Addendum dated as of October 25, 2005 (the “Addendum”) (the Lease, as amended by the Addendum, is hereinafter referred to as the “Amended Lease”) ;
WHEREAS, YNHH is an affiliate of ASC, and ASC desires to transfer and assign its interest in the Amended Lease (as further amended hereby) to YNHH; and
WHEREAS, ASC, YNHH and GKF desire to further amend the Amended Lease with respect to reimbursement paid to GKF and certain other provisions and to effect such transfer and assignment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. | Definitions . All capitalized terms used but not defined herein have the meanings given thereto in the Amended Lease. The lease arrangement as amended and assigned to YNHH hereby is referred to as the “Assigned Lease.” |
2. | Additional Amendments to the Amended Lease. GKF and ASC agree to amend the Amended Lease as follows: |
a. | As of the Amendment Effective Date, Section 7 of the Lease (captioned “Reimbursement to GKF”) and Section 4 of the Addendum (captioned “Lease Payment to GKF”) are deleted and of no further force or effect. |
b. | From and after the Amendment Effective Date, YNHH shall pay to GKF the monthly “Lease Payments” (as defined below), plus , if applicable, the “Additional Payments” (as defined below). The Lease Payments shall be payable within thirty (30) days after the conclusion of each calendar month in which the applicable procedures were performed. In addition to the Lease Payments and the Additional Payments, YNHH shall pay to GKF quarterly payments in an amount equal to one quarter of YNHH’s reasonable projection of the total property tax, service and support agreement and insurance obligations due on the Equipment and paid by GKF for each “Contract Year” (as defined below). Within thirty (30) days after the end of each Contract Year, the sum of such quarterly projected payments made by YNHH shall be reconciled against the actual amounts of such expenses, and YNHH or GKF shall, within thirty (30) days thereafter, make a “true up” payment to the other as appropriate. Through the term of the Assigned Lease, and thereafter until final settlement of all amounts owed to or claimed by either party under the Assigned Lease, each party shall have the right at reasonable times and upon reasonable advance notice to inspect, audit and copy the other party’s books and records which relate to scheduling and billing of, and reimbursement for, Gamma Knife procedures, the Lease Payments and Additional Payments, and the service, insurance and property tax expenses associated with the Equipment. Notwithstanding the foregoing, the compensation payable to GKF pertaining to procedures performed prior to the Amendment Effective Date shall be calculated and paid by ASC in accordance with Section 4 of the Amended Lease. |
i. | As used herein: |
(A) | “Lease Payment” shall mean and be equal to Five Thousand Five Hundred Dollars ($5,500) multiplied by each and every procedure performed after the Amendment Effective Date during the applicable calendar month using the Equipment, irrespective of (1) whether the procedure is performed by YNHH, its representatives or affiliates, or any other person or entity; or (2) the actual amounts billed or collected, if any, pertaining to such procedures. |
(B) | “Affiliate” shall mean as to any YNHH and/or ASC, (1) any Person which, directly or indirectly, is in control of, is controlled by, or is under common control with such YNHH and/or ASC, or (2) any Person who is a director or officer (aa) of YNHH and/or ASC, (bb) of any subsidiary of YNHH and/or ASC, or (cc) of any Person described in clause (1) above. For purposes of this definition, control of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities, by contract or otherwise. |
Without limiting the generality of the foregoing, “Affiliate” shall expressly include the Yale-New Haven Delivery Network and all of its constituent entities, including, without limitation, Yale-New Haven Hospital, Yale-New Haven Children’s Hospital, Yale-New Haven Psychiatric Hospital, Yale-New Haven Ambulatory Services Corp (Temple Medical Center), Yale-New Haven Independent Practice Association (IPA), Yale-New Haven Physician Hospital Organization (PHO), and Medical Center Pharmacy.
Notwithstanding the foregoing, “Affiliate” shall expressly exclude (aaa) the Bridgeport Delivery Network, comprised of Bridgeport Hospital, Ahlbin Rehabilitation Centers, United Visiting Nurse Association and Bridgeport Hospital Foundation, and (bbb) the Greenwich Delivery Network comprised of Greenwich Hospital, Greenwich Physicians Association, Inc., and Greenwich Hospital Hospice services.
(C) | “Contract Year” shall mean each successive twelve (12) month period commencing from the First Procedure Date. |
(D) | “Person” shall mean any individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity of whatever nature. |
ii. | If (A) at any time, YNHH, ASC and/or any of their respective Affiliates purchases, leases or otherwise acquires, directly or indirectly, an ownership or other interest in one or more additional Leksell Gamma Knife units (each, an “Additional Unit”) for use or operation within the State of Connecticut in addition to the Equipment; and (B) at any time or from time-to-time thereafter, the number of procedures performed using the Equipment during any Contract Year is less than two hundred forty (240), which 240 procedures shall be prorated if the Contract Year is less than 365 days (a “Shortfall Contract Year”), then, in addition to the Lease Payments payable to GKF for procedures performed using the Equipment, YNHH shall pay to GKF an additional amount (each, an “Additional Payment”) equal to the sum of Five Thousand Five Hundred Dollars ($5,500) multiplied by each procedure performed using the Additional Unit(s) during the corresponding Shortfall Contract Year, up to an aggregate of two hundred forty (240) procedures (prorated if the subject Contract Year is less than 365 days) combined between procedures performed using the Equipment and procedures performed using the Additional Unit(s), irrespective of (1) whether such procedures are performed by YNHH, its representatives or affiliates, or any other person or entity; or (2) the actual amounts billed or collected, if any, pertaining to any such procedures. The Additional Payments shall be paid by YNHH to GKF quarterly in an amount equal to one quarter of YNHH’s reasonable projection of the aggregate Additional Payment for the then current Contract Year. Within thirty (30) days after the end of each Contract Year, the sum of such quarterly projected payments made by YNHH shall be reconciled against the actual Additional Payment payable for the subject Contract Year, and YNHH or GKF shall, within thirty (30) days thereafter, make a “true up” payment to the other as appropriate. Nothing set forth herein shall limit or place a ceiling on the number of procedures that may be performed using the Equipment or on the Lease Payment that is payable in connection with procedures performed using the Equipment. |
iii. | For example, if Additional Unit(s) have been acquired: |
1. | Assuming 200 procedures are performed using the Equipment during a Contract Year and another 100 procedures are performed in the same Contract Year using the Additional Unit(s), then, the aggregate Lease Payments for that Contract Year would equal $1,100,000 (i.e., 200 x $5,500), and the Additional Payment for that Contract Year would equal $220,000 (i.e., 40 x $5,500). |
2. | Assuming 100 procedures are performed using the Equipment during a Contract Year and another 100 procedures are performed in the same Contract Year using the Additional Unit(s), then, the aggregate Lease Payments for that Contract Year would equal $550,000 (i.e., 100 x $5,500), and the Additional Payment for that Contract Year would equal $550,000 (i.e., 100 x $5,500). |
3. | Assuming 150 procedures are performed using the Equipment during a Contract Year and zero (0) procedures are performed in the same Contract Year using the Additional Unit(s), then, the aggregate Lease Payments for that Contract Year would equal $825,000 (i.e., 150 x $5,500), and the Additional Payment for that Contract Year would equal $0 (i.e., 0 x $5,500). |
4. | Assuming 250 procedures are performed using the Equipment during a Contract Year and zero (0) procedures are performed in the same Contract Year using the Additional Unit(s), then, the aggregate Lease Payments for that Contract Year would equal $1,375,000 (i.e., 250 x $5,500), and the Additional Payment for that Contract Year would equal $0 (i.e., $0 x $5,500). |
c. | Section 11.1 (captioned “Right of First Refusal”) of the Lease is hereby deleted and of no further force or effect. |
d. | YNHH and GKF agree to implement Section 6 (captioned “Marketing Support”) of the Lease in accordance with the following paragraph: |
Marketing Support . YNHH shall provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.), marketing support, and administrative and physician support for this clinical service (i.e. seminars by neurosurgeons and radiation oncologists to interested physicians and the like). Not less than ninety (90) days prior to each anniversary of the Amendment Effective Date, GKF and YNHH shall develop a mutually agreed upon marketing budget and plan for the clinical service to be supported by the Equipment for the succeeding twelve (12) month period of the Term. Once mutually approved, the marketing budget and plan shall be implemented in accordance with its terms. As funds are expended by YNHH in accordance with the marketing budget and plan, YNHH shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse YNHH for fifty percent (50%) of the expenditures up to an annual maximum reimbursement by GKF of Fifty Thousand Dollars ($50,000). It is acknowledged by GKF and YNHH that the expenses to be reimbursed by GKF as provided in this Section have been reflected in the calculation of the per procedure payment to be paid to GKF by YNHH pursuant to the first sentence of Section 2.b of this Amendment, and shall not be taken into account in calculating any obligations of GKF or YNHH in connection with the payments for property tax, the service and support agreement and insurance obligations contemplated by such Section 2.b.
3. | Assignment and Assumption . |
a. | ASC hereby (i) transfers, sells, assigns and sets over to YNHH all of ASC’s right, title and interest in, under and to the Assigned Lease to YNHH, its successors and assigns, from and after the Amendment Effective Date for the entire balance of the term of the Assigned Lease, subject to the terms, covenants and conditions therein contained; and (ii) agrees to keep, carry out and perform of all of the terms, covenants and conditions of the Amended Lease to be performed by “Yale” thereunder and arising or accruing at any time prior to the Amendment Effective Date. |
b. | ASC hereby agrees to defend, indemnify and hold YNHH harmless from and against any loss, cost, damage or expense arising out of or in connection with the Amended Lease accruing up through the Amendment Effective Date. |
c. | YNHH hereby (i) accepts such assignment, assumes the Assigned Lease, and agrees to keep, carry out and perform of all of the terms, covenants and conditions of the Assigned Lease to be performed by “Yale” thereunder and arising or accruing from and after the Amendment Effective Date, and (ii) agrees to defend, indemnify and hold ASC harmless from and against any loss, cost, damage or expense arising out of or in connection with the Assigned Lease accruing from and after the Amendment Effective Date. |
d. | GKF hereby (i) consents to such assignment of the Assigned Lease and the assumption of the Assigned Lease by YNHH; and (ii) agrees to release ASC from any claim under the Amended Lease or the Assigned Lease first accruing from and after the Amendment Effective Date. |
4. | Address of YNHH for Notices . For the purposes of any notices required by the Assigned Lease, YNHH’s address and contact shall be: |
Yale-New Haven Hospital
20 York Street
New Haven, CT 06510
Fax: (203) 688-6886
Attn.: John Skelly, VP Finance
5. | Governing Law . This Amendment shall be governed by and construed under the laws of the State of Connecticut, without reference to its principles of conflicts of law. |
6. | Counterparts . This Amendment may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all of which counterparts shall together constitute the same instrument. |
7. | Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Amendment. |
8. | Successors . This Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. |
9. | Full Force and Effect . Except as amended by this Amendment, all of the terms and provisions of the Amended Lease shall remain in full force and effect. |
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day first written above.
YALE-NEW HAVEN AMBULATORY | GK FINANCING, LLC |
SERVICES CORPORATION | |
By: /s/ Gayle Capozzalo | By: /s/ Ernest A. Bates, M.D. |
Its: Executive VP, Strategy and System Development | Its: Policy Committee Member |
YALE-NEW HAVEN HOSPITAL, INC. | |
By: /s/ John Skelly | |
Its: VP of Finance |
Exhibit 10.7
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT on May 28, 1999, (hereinafter, referred to as the “Agreement”) is entered into between GK Financing, LLC, a California Limited Liability Company, (hereinafter referred to as “GKF”), and Froedtert Memorial Lutheran Hospital, a non-profit Wisconsin corporation, (hereinafter referred to as “Medical Center”).
RECITALS
WHEREAS, Medical Center wants to lease a Leksell Stereotactic Gamma Unit 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 Medical Center, pursuant to the terms and conditions of this Agreement.
NOW, therefore, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Medical Center and Elekta. Medical Center agrees that simultaneously with the execution of this Agreement it shall execute that certain LGK Agreement with Elekta, (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Medical Center agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement. Medical Center shall indemnify and hold harmless GKF in the event that GKF suffers any loss, damage, claim or expense (including reasonable attorneys' fees) solely as a result of Medical Center's breach or alleged breach of the LGK Agreement.
2. Delivery of the Equipment and Site preparation. GKF shall arrange to have the Equipment delivered to Medical Center, at Froedtert Memorial Lutheran Hospital, 9200 W. Wisconsin Avenue, Milwaukee, Wisconsin, 53226 (the “Site”) in coordination with Elekta.
Medical Center shall provide a Site, at its own expense, in accordance with all of the Equipment manufacturer's (Elekta's) guidelines, specifications, technical instruments and Site Planning Criteria (which Site Planning Criteria are attached hereto as Exhibit B and incorporated herein by this reference), which criteria shall include Elekta's estimated delivery schedule when and as received by GKF, on Medical Center controlled property (The “Site”) for the proper performance of Gamma Knife procedures. Site location shall be reasonably acceptable to GKF. Medical Center shall prepare at its sole cost and expense the requisite site plans and specifications and shall submit them to Elekta and GKF for approval. Medical Center shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance Tests, and the use of the Equipment all as more fully set forth in the LGK Agreement.
3. Commencement of Term. The Term (hereinafter defined) of this Agreement shall commence upon successful completion of the Acceptance Tests and the performance of the first clinical Gamma Knife procedure at the Site (the “Commencement Date”). Medical Center shall become liable to GKF for the payments referred to in Paragraph 6 herein below upon the Commencement Date.
4. Costs of Site Preparation; Costs of Installation. Medical Center's obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in accordance with such plans and specifications, being in full compliance with Elekta's Site Planning Criteria. Medical Center shall at its own expense and risk, prepare, construct and make ready the Site as necessary, for the installation of the Equipment, including, but not limited to, providing any temporary and/or permanent shielding for the charging of the equipment and its use, selecting and preparing a proper foundation for the Equipment and for such shielding and walls, as well as proper alignment of the Site and wiring. Medical Center shall be financially responsible for the positioning of the Equipment on its foundation at the Site.
Medical Center shall also at its own expense select, purchase and install all radiation monitoring equipment and devices, safety circuits and radiation warning signs needed for the Equipment at the Site, required by all applicable federal, state and local laws and regulations.
Upon completion of the Site, Medical Center shall warrant that the Site will be safe and suitable for its use of the Equipment. Medical Center shall fully indemnify and hold harmless GKF from any and all loss, liability, damage, expense or claim (including attorneys' fees) which GKF may suffer and incur and which relate to the Site and the Equipment's positioning thereon.
Medical Center shall be responsible for any damage to the Equipment caused by (a) defects in construction of the Site or defects in the positioning of the Equipment at the Site by Medical Center; (b) defects arising out of materials or parts provided, modified or designed by Medical Center with respect to the Site; or (c) negligent or intentional acts of omission or commission by Medical Center or any of its officers, agents, physicians, and employees in connection with the Site preparation or operation of the Equipment at the Site.
Medical Center warrants that it shall utilize its best efforts to fulfill on an expeditious basis its obligations under this Paragraph 4. Medical Center further warrants that it shall on a regular basis keep GKF informed of Medical Center's progress in fulfilling its obligations pursuant to this Paragraph 4. GKF shall deliver the Equipment to the Medical Center's designated loading dock on July 1, 1999. Should GKF fail to deliver the Equipment no later than thirty (30) days after July 1, 1999 GKF shall pay Medical Center $100,000. Should Medical Center not have all site preparations completed by the delivery date specified by a separate agreement plus a sixty (60) day grace period such that the site is acceptable for positioning and installation of the equipment, Medical Center shall reimburse GKF at an interest rate of Bank of America's prime rate plus 2% on GKF's equipment cost until the Site is prepared to allow positioning and installation of the equipment.
5. Term of the Equipment. GKF agrees to provide to Medical Center the Equipment pursuant to the terms of this Agreement, for a term of ten (10) years from the Commencement Date as described in Paragraph 3 hereinabove (the “Term”), unless terminated earlier as provided herein.
6. Per Procedure Payments. Medical Center shall pay to GKF a per procedure payment of for the use of the Equipment pursuant to Exhibit I. A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session. Medical Center shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively. Medical Center shall pay the procedures invoiced within thirty (30) days after receipt of the invoice. Interest shall begin to accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days. After twenty four (24) months of service, and every twelve (12) months thereafter, the parties agree to review and renegotiate the payment provisions of this paragraph, including consideration of payment as a percentage of the Medical Center's reimbursement (although GKF shall be under no obligation to change such payment provisions).
7. Use of the Equipment. The Equipment may be used by Medical Center only at the location stated above and shall not be removed therefrom. Medical Center shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF which consent shall not be unreasonably withheld. Medical Center may, however, permit the equipment to be used by trained personnel that are not employees of Medical Center. No permitted assignment or sublease shall relieve Medical Center of any of its obligations hereunder. Medical Center shall not use nor permit the Equipment to be used in any manner nor for any purpose for which, in the opinion of Elekta, the Equipment is not designed or reasonably suitable. Medical Center shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. Medical Center shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Medical Center shall, at GKF's reasonable request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
8. Additional Covenants of Medical Center. In addition to the other covenants made by Medical Center, Medical Center shall at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment (subject to Elekta's obligation to provide training of Medical Center personnel, as provided in the LGK Agreement).
(b) Assume all medical and financial responsibility for the overseers' monitoring of all patients' medical condition and treatment.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Indemnify GKF as herein provided: (i) Medical Center hereby agrees to fully indemnify and/or reimburse (including reasonable attorneys' fees) GKF on a prompt basis for any and all damage to the Equipment (including any violations by Medical Center, its agents, officers, physicians, employees, successors and assigns of the Service Agreement described in Paragraph 15 hereof) to the extent such damages are caused by the negligent or wrongful acts or omissions of Medical Center, its agents, officers, physicians and employees and are in excess of insurance proceeds recovered by GKF. In the event the Equipment is destroyed or rendered unusable, this indemnification 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. (ii) Medical Center hereby further agrees to indemnify and hold GKF, its agents, officers, employees, successors and assigns, harmless from and against any and all claims, liabilities, obligations, losses, damages, injuries, penalties, actions, costs and expenses (including reasonable attorneys' fees) for all events and/or occurrences described in Article 7.3 of the LGK Agreement to the same extent that Medical Center agrees to indemnify Elekta thereunder. Medical Center further agrees to fully indemnify and hold harmless GKF for any loss, damage, claim, or expense (including reasonable attorneys' fees) GKF may suffer or incur as a result of Medical Center's breach or breach alleged in litigation with regard to the LGK Agreement. GKF shall give prompt notice to Medical Center of any claim and Medical Center at its option and expense may assume the primary defense of the claim. Any compromise or settlement shall require the prior written consent of GKF which consent shall not be unreasonable withheld.
(e) Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.), marketing support, and an administrative and physician (i.e. seminars by neurosurgeons and radiation oncologists to referring physicians, etc.) commitment to this clinical service. Medical Center and GKF personnel shall jointly develop and agree upon a marketing plan and budget. Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve (12) month period of the Term. As funds are expended by Medical Center shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse Medical Center for fifty percent (50%) of the expenditures up to the limit of Fifty Thousand Dollars ($50,000.00), unless said limit is waived by GKF.
9. Additional Covenants, Representations and Warranties of GKF. In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to Medical Center that, upon delivery of the Equipment to Medical Center, GKF shall use its best faith efforts to require that Elekta meets its contractual obligations to GKF and in putting the Equipment, as soon as 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.
(c) GKF represents and warrants that throughout the term of this Agreement, subject to the second paragraph of section 10 below it has good marketable title to the equipment, and Medical Center shall 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.
(d) During the entire term of this agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 15 hereof; and (ii) any other service or other agreements required to fulfill GKF's obligations to Medical Center under this Agreement. GKF represents and warrants that during the entire term of this agreement and any subsequent extensions thereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that Elekta fully performs its obligations under the Service Agreement and that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and/or Elekta's warranties to GKF. In no event, however, shall the warranty obligations of GKF to Medical Center with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment.
10. Ownership/Title. It is expressly understood that Medical Center shall acquire no right, title or interest in or to the Equipment, other than the right to the possession and use of the same in accordance with the terms of this Agreement.
GKF may at its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a capitalized lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease title shall vest with the lessor until GKF exercises its buy-out option. In addition, should GKF finance the Equipment, said agreement may be used as collateral against the loan. In all of the foregoing situations, GKF shall use its best efforts to cause the entity financing the equipment to agree not to disturb the rights of the Medical Center under this Agreement so long as the Medical Center does not default on its obligations hereunder. In the event the financial entity forecloses on GKF's interest in the equipment of this Agreement and said foreclosure is not cured within 45 days and the financing entity elects not to assume GKF's obligations, Medical Center may elect to purchase the equipment for its fair market value or principal balance, whichever is higher.
11. Cost of Use of the Equipment. Except as is otherwise provided herein, Medical Center shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. Medical Center shall be fully responsible and liable for all acts and/or omissions of such professional, technical and support personnel.
12. Taxes. GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of Medical Center.
13. Maintenance and Inspections. GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a good state of repair, reasonable wear and tear excepted. Medical Center shall be responsible for all damage to the Equipment caused by the misuse, negligence, improper use or other intentional or negligent acts or omissions of Medical Center's employees, officers, agents, and physicians.
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting and repairing the same at all reasonable times and upon reasonable prior written notice and shall use all reasonable efforts not to interfere with Medical Center's use of the Equipment. In the event the Equipment is improperly used by Medical Center or its employees, agents, officers, and physicians, GKF may service or repair the same as needed and such expense shall be paid by Medical Center, unless the repair is covered by the Service Agreement described in Paragraph 15 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of Medical Center's failure or neglect to do so shall not deprive GKF of any of its rights, remedies or actions against Medical Center for damages caused by such failure or neglect. If, thirty (30) days after giving of written notice by Medical Center, GKF fails to make the repairs it is required to make under this Agreement, Medical Center may make the repairs. GKF shall reimburse Medical Center for the cost of the repairs within thirty (30) days, following receipt of Medical Center's invoice.
14. Equipment Modifications/Additions/Upgrades. The parties agree that the necessity and financial responsibility for modifications/additions/upgrades to the Equipment, including the reloading of the Cobalt-60 source, shall be discussed and mutually decided by GKF and Medical Center. If GKF and Medical Center agree to reload the Cobalt-60 source (in approximately year 8 of the initial term), GKF shall be responsible for the expenses relate to the Cobalt-60 reloading and Medical Center shall be responsible for any site costs associated with the Cobalt-60 reload. If the reloading of the Equipment occurs, the original term shall be extended for 8 years less the number of years remaining in the original term. GKF shall reimburse Medical Center for the cost of the repairs within thirty (30) days, following receipt of Medical Center's invoice.
15. Service Agreement. GKF warrants that it shall simultaneously with the execution of this Agreement enter into a Service Agreement with Elekta in the form of Exhibit C attached to this Agreement.
16. Termination If, after the initial twenty-four (24) month period of service, and subsequent 12 month periods of service, Medical Center does not provide GKF with a reasonable economic justification to continue providing Gamma Knife services hereunder, then and in that event, GKF shall have the option of terminating this Agreement upon the giving of written notice to Medical Center of said termination not less than ninety (90) days prior to GKF's designated termination date.
17. Options to Extend Agreement.
(a) Medical Center shall have the option at the end of the ten (10) year initial Term to:
(i) Renegotiate this Agreement for a five (5) year renewal term.
(ii) Terminate this Agreement. If Medical Center terminates this Agreement at the end of the initial term, GKF shall remove the Gamma Knife within an agreed upon period of time after the expiration of the ten (10) year initial Term not in excess of 90 days.
Medical Center shall exercise one (1) of the two (2) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California, 94111, by registered mail, postmarked on or before the end of the ninth (9th) year of the ten (10) year initial Term of this Agreement. Any such notice shall be sufficient if it states in substance that Medical Center elects to exercise its option and states which of the two (2) options referred to above Medical Center is exercising.
18. No Warranties by GKF. Medical Center warrants that as of the Commencement Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a size, design, capacity and manufacture selected by it; and (c) satisfied itself that to the best of its knowledge the Equipment is suitable for Medical Center's stated purposes. GKF SUPPLIES THE EQUIPMENT “AS IS” AND 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, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks as between GKF and Medical Center, shall be borne by Medical Center. Medical Center agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. Any and all warranties made by Elekta will be in its good faith best efforts enforced by GKF on behalf of Medical Center during the ten (10) year initial Term hereof. Medical Center agrees that GKF shall not be responsible for the delivery, installation, or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage resulting from the installation, operation or use of the Equipment or otherwise. Medical Center 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.
19. Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) Medical Center shall fail to observe or perform any of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for thirty (30) days after written notice thereof to Medical Center by GKF provided, however, that if the nature of the default is such that it cannot reasonably be cured within the thirty (30) day period, the Medical Center shall not be deemed to be in default if it shall commence to cure the default within the thirty (30) day period and diligently effect the cure within a period not exceeding an additional thirty (30) days;
(d) Medical Center 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.
(e) Within sixty (60) days after the commencement of any proceedings against Medical Center 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 Medical Center'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.
Upon the occurrence of an Event of Default, GKF may at its option do any or all of the following: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with a five percent (5%) increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law 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.
Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
20. Insurance.
(a) During the ten (10) year initial Term of this Agreement (and any successive terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. During the ten (10) year initial Term of this Agreement, Medical Center shall, at its own cost and expense keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by Medical Center. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $5,000,000 in aggregate per year. Medical Center and GKF, their successors and assigns, shall be named as additional insureds and/or loss payees on the insurance policies maintained hereunder by the other party. Evidence of such insurance coverages shall be furnished by both parties to the other party upon written request, by no later than the Commencement Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Medical Center shall give to GKF prompt notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, subject to section 8(d), GKF at its sole cost and expense shall promptly replace the Equipment. This Agreement shall continue in full force and effect as though such damage or destruction had not occurred except that the term of the Agreement shall be extended by the time the Equipment was rendered unusable. In the event GKF determines that the Equipment can be repaired, GKF shall cause the Equipment to be promptly repaired, subject to section 8(d).
21. Notices. Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Chief Executive Officer |
Four Embarcadero Center, Suite 3620 | |
San Francisco, CA 94111 | |
To Medical Center: | Chief Executive Officer |
Froedtert Memorial Lutheran Hospital | |
9200 W. Wisconsin Avenue | |
Milwaukee, WI 53226 |
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
22. Integration/Supersedure. This Agreement contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
23. Waivers. To the extent that either party fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice that party's rights to pursue any of those remedies at any future time and shall not constitute a waiver of rights.
24. Assignments. This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this Agreement without the express written consent of the other (which consent shall not be unreasonably withheld).
25. Amendments. This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
26. Record-Keeping Requirements. To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Medical Center by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by Medical Center, it being understood that, inasmuch as Medical Center is entering into this Agreement in reliance on GKF's reputation and expertise, that Medical Center shall be the sole judge of the reputation and expertise of the proposed delegee, and only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Medical Center by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
27. Miscellaneous Provisions.
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) 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.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
Medical Center | GK Financing, LLC |
By: /s/ William B. Petasnick | By: /s/ Craig K. Tagawa |
President & CEO | Chief Executive Officer |
Froedtert Memorial Lutheran Hospital | |
Exhibit 1
PER PROCEDURE PAYMENTS
Annual Procedures Performed | Fee Per Procedure | |||
1-75 | $ | 8,250 | ||
76-125 | $ | 8,000 | ||
126-150 | $ | 7,750 | ||
151+ | $ | 7,000 |
Note: Procedure counts will revert to zero on each anniversary of the Commencement Date.
Exhibit 10.7d
FIRST AMENDMENT TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This FIRST AMENDMENT TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Amendment”) is dated as of the 29th day of December, 2008, and is entered into between GK FINANCING, LLC, a California limited liability company (“GKF”), and FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC., a non-profit Wisconsin corporation (“Medical Center”), with reference to the following facts:
Recitals
A. GKF and Medical Center are parties to a certain Lease Agreement for a Gamma Knife Unit dated May 28, 1999, which has been amended by letter addendum (as amended, the “Agreement”).
B. Pursuant to Section 14 of the Agreement, the parties desire to upgrade the Equipment from a Leksell Gamma Knife Model B Unit to a Leksell Gamma Knife Model C Unit, and to amend the Agreement, on the terms set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby amend the Agreement as follows:
Agreement
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Agreement.
2. Upgrade of the Equipment .
a. GKF shall upgrade the existing Equipment to a Leksell Gamma Knife Model C with Automatic Positioning System manufactured by Elekta Instruments, Inc (the “Model C”), and which will continue to be located at the existing Site ( i.e ., Froedtert Memorial Lutheran Hospital, 9200 W. Wisconsin Avenue, Milwaukee, Wisconsin 53226) (the “Upgrade”). GKF shall be responsible for the costs of implementing changes to the Site which are required to support the Model C. However, Medical Center will provide Medical Center personnel and services upon request and as required by GKF to perform the Upgrade at no cost to GKF. Such personnel and services shall include, but not be limited to, oversight supervision and assistance by Medical Center with construction and compliance with building requirements, and by Medical Center physicists with nuclear regulatory compliance issues and the calibration of the Model C. It is anticipated but not guaranteed that the Upgrade will occur in or around the first half of 2009, provided that all Permits have been obtained.
b. The Upgrade will be performed by GKF after all appropriate licenses, permits, approvals, consents and authorizations (collectively, the “Permits”) have been obtained by Medical Center at Medical Center’s cost for the Upgrade, including, without limitation, the proper handling of the cobalt-60 during the Upgrade. The timing and procedure for the Upgrade shall be as mutually agreed upon between the parties. Notwithstanding anything to the contrary set forth herein, the Upgrade shall not include loading new cobalt-60 sources. Furthermore, GKF is not responsible for any additional hardware, cobalt reloading, software changes and/or other modifications to the Model C except as agreed upon in writing by Medical Center and GKF. Upon completion of the Upgrade, all references in the Agreement to the “Equipment” shall be to the Model C.
3. Per Procedure Payments . In consideration of the Upgrade, effective on the date the Model C becomes operational to perform clinical treatments, Exhibit 1 of the Agreement (Per Procedure Payments) shall be deleted in its entirety and replaced with Exhibit 1 attached hereto.
4. Extension of Term . In view of the Upgrade, the term of the Agreement shall be extended by the number of days the Equipment (and the Model C) will not be available for clinical use during the Upgrade process. The parties confirm that the Commencement Date (as defined in the Agreement) is December 15, 1999, and that, pursuant to letter addendum between the parties (pertaining to the prior reload of the cobalt 60 source), the term of the Agreement expires on December 15, 2014 (which does not take into account the further extension based on the Upgrade).
5. Full Force and Effect . Except as amended by this Amendment, all of the terms and provisions of the Agreement shall remain in full force and effect. Notwithstanding the foregoing, to the extent of any conflict or inconsistency between the terms and provisions of this Amendment and that of the Agreement, the terms and provisions of this Amendment shall prevail and control.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first written above.
GKF: | Medical Center: |
GK FINANCING, LLC | FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC. |
By: /s/ Ernest A. Bates, M.D. | /s/ Blaine J. O’Connell |
Title: Policy Committee Member | Title: Sr. VP Finance and CFO |
Exhibit 1
PER PROCEDURE PAYMENTS
Annual Paid Procedures Performed | Fee Per Procedure | |||
1-100 | $ | 9,500 | ||
101-150 | $ | 7,750 | ||
151+ | $ | 7,000 |
Notwithstanding anything to the contrary set forth herein, (a) for purposes of determining the per Procedure payment, the number of annual Procedures performed shall be reset to zero (0) at the commencement of each anniversary of the Commencement Date; (b) for Procedure count purposes, any patient treatment provided on a fractionated basis shall count as one (1) Procedure; and (c) there shall be no retroactive adjustment of the per Procedure payment irrespective of whether the number of Procedures performed reaches a lower per Procedure payment level. For example, if 140 procedures are performed during a particular year, Medical Center would pay $9,500 for each of the first 100 Procedures, and $7,750 for each of the next Forty procedures (i.e., for Procedures 101 through 140).
If no Procedures are performed utilizing the Equipment, no charges shall be incurred by Medical Center.
As used in the Agreement, a “Procedure” shall mean any treatment, whether performed on an inpatient or outpatient basis, 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, that is performed by Medical Center or its representatives or affiliates, irrespective of whether the Procedure is performed on the Model C or using any other equipment or devices.
Within ten (10) days after Medical Center’s receipt of written request by GKF, GKF shall have the right to audit Medical Center’s books and records (including, without limitation, the books and records pertaining to any other radiosurgery equipment or devices) to verify the number of Procedures that have been performed by Medical Center, and Medical Center shall provide GKF with access to such books and records; provided that any patient names or identifiers shall not be disclosed.
Exhibit 10.7e
SECOND AMENDMENT TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This SECOND AMENDMENT TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Second Amendment”) is dated as of the 16 th day of May, 2013, and is entered into between GK FINANCING, LLC, a California limited liability company (“GKF”), and FROEDTERT MEMORIAL LUTHERAN HOSPITAL, INC., a non-profit Wisconsin corporation (“Medical Center”), with reference to the following facts:
RECITALS
A. | GKF and Medical Center are parties to a certain Lease Agreement for a Gamma Knife United dated May 28, 1999, which Lease Agreement was amended by letter addendums and by a First Amendment dated December 29, 2008 (as amended, the “Agreement”). |
WHEREAS, the parties desire to further amend the terms and provisions of the Agreement as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby amend the Agreement as follows:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Agreement.
2. Per Procedure Payment . In consideration of implementation of the American Tax Payer Relief Act of 2012, effective on May 1, 2013, Exhibit 1 of the Agreement (Per Procedure Payments) shall be deleted in its entirety and replaced with Exhibit 1 attached hereto. Provided, however, if Section 634 is modified or repealed, Medical Center shall pay to GKF the non-Medicare fee per procedure payment for Medicare procedures effective the date of the modification or repeal of Section 634.
3. Full Force and Effect . Except as amended by this Second Amendment, all of the terms and provisions of the Agreement shall remain in full force and effect. Notwithstanding the foregoing, to the extent of any conflict or inconsistency between the terms and provisions of this Second Amendment and that of the Agreement, the terms and provisions of this Second Amendment shall prevail and control.
[Signatures continued on next page]
IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first written above.
GKF: | Medical Center: | |||
GK FINANCING, LLC | FROEDTERT MEMORIAL LUTHERAN | |||
HOSPITAL, INC. | ||||
By: | /s/ Ernest A. Bates, MD | By: | /s/ Jeffrey Van De Kreeke | |
Name: | Ernest A. Bates, MD | Name: | Jeffrey Van De Kreeke | |
Title: | Policy Committee Member | Title: | VP – Finance |
Exhibit 1
PER PROCEDURE PAYMENTS
Annual Paid Procedures
Performed |
Non-Medicare
Fee Per Procedure |
Medicare
Fee Per Procedure |
||||||
1-100 | $ | 9,500 | $ | 9,200 | ||||
101-150 | $ | 7,750 | $ | 7,450 | ||||
151+ | $ | 7,000 | $ | 6,700 |
Notwithstanding anything to the contrary set forth herein, (a) for purposes of determining the per procedure payment, the number of annual procedures performed shall be reset to zero (0) on each anniversary of the first day of the first full month after the Effective Date of this Agreement; (b) for purposes of determining the applicable per procedure payment tier, non-Medicare and Medicare procedures will be grouped chronologically as they are performed; and (c) there shall be no retroactive adjustment of the per procedure payment irrespective of whether the number of procedures performed during any fiscal year reaches a lower per procedure payment level. For example, if during an annual measuring period, 120 procedures are performed (of which 70 are non-Medicare procedures and 50 are Medicare procedures), then, (i) for each of the first 100 procedures performed (irrespective of the number of non-Medicare and Medicare procedures comprising the first 100 procedures), Medical Center would pay $9,500 for each non-Medicare procedure and $9,200 for each Medicare procedure; and (ii) for each of the next 20 procedures performed (irrespective of the number of non-Medicare and Medicare procedures comprising the next 20 procedures), Medical Center would pay $7,750 for each non-Medicare procedure and $7,450 for each Medicare procedure.
If no Procedures are performed utilizing the Equipment, no charges shall be incurred by Medical Center.
As used in the Agreement, a “Procedure” shall mean any treatment, whether performed on an inpatient or outpatient basis, 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, that is performed by Medical Center or its representatives or affiliates, irrespective of whether the Procedure is performed on the Model C or using any other equipment or devices.
Within then (10) days after Medical Center’s receipt of written request by GKF, GKF shall have the right to audit Medical Center’s books and records (including, without limitation, the books and records pertaining to any other radiosurgery equipment or devices) to verify the number of Procedures that have been performed by Medical Center, and Medical Center shall provide GKF with access to such books and records; provided that any patient names or identifiers shall not be disclosed.
Exhibit 10.8
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT (hereinafter referred to as the “Agreement”), dated December 11, 1996, is entered into between GK FINANCING, LLC, a California Limited Liability Company (hereinafter referred to as “GKF ” ), and THE COMMUNITY HOSPITAL GROUP, INC., dba JFK MEDICAL CENTER, a New Jersey corporation (hereinafter referred to as “JFK”).
RECITALS
WHEREAS, JFK wants to lease a Leksell Stereotactic Gamma Unit, Model 23004, Type B, manufactured by Elekta Instruments, Inc. (hereinafter referred to as the “Equipment”);
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 JFK pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between JFK and Elekta . JFK agrees that simultaneously with the execution of this Agreement it shall execute that certain LGK Agreement with Elekta (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as Exhibit 1 and incorporated herein by this reference. JFK agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement. JFK shall fully indemnify and hold harmless GKF in the event that GKF suffers any loss, damage, claim or expense (including reasonable attorneys ' fees) solely as a result of JFK ' s breach of the LGK Agreement. Subject to the consent of Elekta, GKF hereby sublicenses the LGK Software (as said term is defined in the LGK Agreement) to JFK.
2. Certificate of Need (CON) . It is understood that JFK requires a CON to install and operate the Equipment. JFK will work diligently toward receipt of a CON for the Equipment and the provision of services related thereto. This Agreement shall become null and void in the event JFK does not receive a CON for the Equipment and the provision of services related thereto after using its best efforts to do so.
3. Delivery of the Equipment and Site Preparation . GKF shall arrange in coordination with Elekta to have the Equipment delivered to JFK at 65 James Street, Edison, New Jersey (the “Site”) on a date specified in a separate written agreement of the parties. GKF shall exert its best efforts to expedite the delivery of the Equipment in accordance with the terms and conditions of the Purchase Agreement for the Equipment by and between GKF and Elekta, a copy of which is attached hereto as Exhibit 2. Unless otherwise agreed upon in writing by GKF and JFK, the Equipment to be delivered to JFK on the delivery date shall be the Leksell Gamma Knife unit, Model 23004, Type B, described in the LGK Agreement. Notwithstanding the foregoing, it is understood and agreed that GKF has made no representations and warranties to JFK concerning actual delivery date or schedule for the Equipment at the Site .
JFK shall provide a safe and properly prepared Site, at its own expense, in accordance with all of Elekta ' s technical instruments (if any), written specifications (if any) and Site Planning Criteria (which Site Planning Criteria are attached as Exhibit B to the LGK Agreement (Exhibit l attached hereto) and incorporated herein by this reference) . Any written specifications not attached as an exhibit to this Agreement shall be delivered to JFK in a timely fashion in order to permit JFK to take such specifications into account i n the planning for the preparation of the Site. The location of the Site shall be acceptable to GKF. JFK shall prepare, at its sole cost and expense, the requisite plans and specifications for the Site and shall submit them to Elekta and GKF for approval, which approval shall not be unreasonably withheld, conditioned or delayed. JFK shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt supply, the conduct of acceptance tests, and the use of the Equipment, all as more fully set forth in Article 2.1 of the LGK Agreement.
4. Term of the Agreement . The initial term of this Agreement (the “Term”) shall commence as of the date hereof and, unless earlier terminated in accordance with the provisions of this Agreement or extended pursuant to Paragraphs 15 or 18 below, shall continue for a period of ten (10) years following the date of the performance of the first clinical Gamma Knife procedure at the Site (the “ First Procedure Date”). JFK shall become liable to GKF for the payments referred to in Paragraph 7 herein below upon the First Procedure Date.
5. Costs of Site Preparation: Costs of Installation . JFK ' s obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in . accordance with such plans and specifications, being in full compliance with Elekta ' s Site Planning Criteria. JFK shall, at its own expense and risk, prepare, construct and make ready the Site as necessary for the installation of the Equipment, including, but not limited to, providing any temporary and / or permanent shielding for the charging of the Equipment and its use, selecting and preparing a proper foundation for the Equipment and the shielding, properly aligning the Site, and installing all wiring . JFK shall be financially responsible for the positioning of the Equipment on its foundation at the Site.
JFK shall, at its own expense and risk, select, purchase, install and maintain all radiation monitoring equipment and 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 and regulations.
Upon completion of the Site, JFK shall warrant that the Site will be safe and suitable for the use of the Equipment. JFK shall fully indemnify and hold harmless GKF (and its members and their respective officers, directors, agents, employees and affiliates) for any loss, liability, damage, action, claim, cost or expense (including reasonable attorneys' fees) which GKF may suffer or incur which is caused solely by JFK ' s preparation of the Site and the positioning of the Equipment not having been done in compliance with Elekta ' s Site Planning Criteria .
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Except to extent attributable to JFK ' s compliance with Elekta's Site Planning Criteria, JFK shall be liable for any damages to the Equipment caused by (a) defects in construction of the Site or defects in positioning of the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by JFK with respect to the Site; (c) negligent or intentional acts of omission or commission by JFK or any of its officers, agents physicians or employees in connection with the Site preparation; or (d) negligent operation of the Equipment at the Site. However, the review and approval of Site plans, specifications and / or positioning plans by GKF and/or Elekta shall not relieve JFK from 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.
JFK warrants that it shall utilize its best efforts to fulfill on an expeditious basis its obligations under this Paragraph 5 . JFK further warrants that it shall on a regular basis keep GKF informed of JFK ' s progress in fulfilling its obligations pursuant to this Paragraph 5. Should JFK not have all Site preparations completed so that the Site is acceptable for positioning and installation of the Equipment by the scheduled delivery date specified in a separate written agreement plus a sixty (60) day grace period (the “late completion date ” ), JFK shall reimburse GKF upon written request for GKF ' s actual financing costs (which financing costs shall not exceed interest at the prime interest rate of Citibank, N.A. plus 2%) based upon GKF ' s cost of the Equipment for the period between the late completion date and the date that the Site is completed in order to allow for the positioning and installation of the Equipment. As of the date of this Agreement, GKF's estimated financing costs based upon the costs of the Equipment is approximately Thirty Thousand Dollars ($30,000 . 00) per month, which amount may be subject to increase or decrease based upon subsequent changes in the prime interest rate.
If the Equipment is not delivered by the scheduled delivery date specified in a separate written agreement plus a sixty (60) day grace period (other than by reasons of force majeure as provided in Paragraph 27 below) (the “late delivery date ” ), GKF shall reimburse JFK upon written request for JFK ' s actual financing costs (which financing costs shall not exceed interest at the prime interest rate of Citibank, N.A. plus 2%) based upon JFK ' s direct costs incurred to prepare and construct the Site for the Equipment for the period between the late delivery date and the date the Equipment is actually delivered to the Site.
6. [Intentionally Omitted]
7. Per Procedure Payments . Except as set forth in this Paragraph 7, JFK shall pay to GKF a per procedure payment of Nine Thousand Five Hundred Dollars ($9,500) for the use of the Equipment. A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session . JFK shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively . JFK shall pay the procedures invoiced within forty- five (45) days after being invoiced by GKF. Interest shall begin to accrue at the rate of 1- 1/2% per month on all invoices remaining unpaid after sixty (60) days . JFK acknowledges that its current Medicare reimbursement rate for DRG 1 is Fourteen Thousand Three Hundred Nineteen Dollars ($14,3 1 9) . If at any time the Medicare reimbursement rate paid to JFK for DRG 1 shall be less than Eleven Thousand Five Hundred Dollars ($11,500), JFK and GKF shall renegotiate the per procedure payment rate set forth hereinabove to reflect JFK ' s reduced Medicare reimbursement rate for DRG I . As consideration for GKF ' s renegotiation of the per procedure payment rate, at that time, JFK and GKF shall review and adjust the technical fee amounts then being charged or billed by JFK for all Gamma Knife procedures (i.e., procedures performed for Medicare patients and non-Medicare patients).
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As a means to permit JFK to perform charity care for persons who require Gamma Knife procedures, who are not covered by Medicare, Medicaid or private insurance programs (whether indemnity, preferred provider, health maintenance organization, etc.) and who do not have the means to pay for such procedures based upon state adopted standards of indigency, GKF shall waive the per procedure payment described in this Paragraph 7 for one (1) Gamma Knife procedure for each twenty-five (25) Gamma Knife procedures performed under this Agreement by JFK for which a per procedure payment is made to GKF in the manner described herein. JFK shall be solely responsible (and GKF shall not in any manner be or become responsible) to determine (a) whether any person described herein requires a Gamma Knife procedure, (b) who shall receive a Gamma Knife procedure hereunder if more than one (1) person described herein requires a Gamma Knife procedure, and (c) whether any person meets the standards of indigency. JFK shall provide reasonable written documentation evidencing satisfaction of the conditions set forth herein to GKF at or prior to the time of payment in order for GKF to waive the per procedure payment for charity care purposes. Except as set forth herein, JFK shall pay to GKF the per procedure payment set forth in this Paragraph 7 for each Gamma Knife procedure regardless of the ability of the patient to pay for such services or the amount of reimbursement or payment received by JFK for such procedure.
8. Use of the Equipment . The Equipment may be used by JFK only at the Site and shall not be removed therefrom. JFK shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF; which consent shall not be unreasonably withheld or delayed. No assignment or sublease shall relieve JFK of any of its obligations hereunder. JFK shall not use nor permit the Equipment to be used in any manner nor for any purpose for which, in the opinion of Elekta or GKF, the Equipment is not designed or reasonably suitable . JFK shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. JFK shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. JFK shall, at GKF ' s request, affix to the Equ ipment tag s, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
9. Additional Covenants of JFK . In addition to the other covenants made by JFK, JFK shall, at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supp lie s required for the proper performance of medical procedures utilizing the Equ ipment.
4
(b) Protect and hold GKF harmless from and against all medical and financial responsibility for the diagnosis, treatment and care of JFK ' s patients.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Fully indemnify, hold harmless and / or reimburse GKF on a prompt basis
as follows:
(i) From and against any and all damages to the Equipment (including any damages arising out of or related to violations by JFK, its agents, officers, physicians, employees, successors and assigns of the Service Agreement described in Paragraph 16 hereof), together with reasonable attorneys fees incurred by GKF to establish or enforce its right to indemnity hereunder, to the extent such damages are caused by the negligent or wrongful acts or omissions of JFK, its agents, officers, physicians, employees, successors and assigns. In the event the Equipment is destroyed or rendered unusable, this indemnification 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.
(ii) From and against any and all claims, liabilities, obligations, losses, damages, injuries, penalties, actions, costs and expenses (including reasonable attorneys' fees) for all events and / or occurrences described in Article 7.3 of the LGK Agreement to the same extent that JFK agrees to indemnify Elekta thereunder.
The indemnification obligations of JFK under this Paragraph 9(d) shall exclude any claims or damages arising out of or related to GKF ' s breach of its obligations under the Purchase Agreement, Elekta's breach of its obligations under the LGK Agreement, or any defects in . the Site Planning Criteria.
(e) Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.), marketing support, and an administrative and physician (i.e. seminars by neurosurgeons and radiation therapists to referring physicians, etc.) commitment to this clinical service. Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve ( 12) month period during the Term, JFK shall submit for approval to GKF a proposed marketing budget and plan for the clinical service to be supported by the Equipment for the succeeding twelve (12) month period of the Term. GKF shall not unreasonably withhold, delay or condition its approval of the marketing budget and plan, and the same shall be deemed approved by GKF unless, within thirty (30) days after receipt thereof, GKF notifies JFK in writing of its exceptions thereto. In such event, the parties shall promptly confer to resolve such exceptions and any other disagreements related to the marketing budget and plan . Once approved, the marketing budget and plan shall be implemented by JFK in accordance with its terms . As funds are expended by JFK in accordance with the marketing budget and plan, JFK shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse JFK for fifty percent (50%) of the expenditures up to the limit of Fifty Thousand Dollars ($50,000.00) per year.
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10. Additional Covenants, Representations and Warranties of GKF . In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to JFK that, upon delivery of the Equipment to JFK, GKF shall use its best faith efforts to require that Elekta meets its contractual obligations to GKF and to put the Equipment, as soon as 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.
(c) GKF represents and warrants that throughout the Term of this Agreement, JFK shall 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 or under Elekta's Purchase Agreement with GKF.
(d) During the entire Term of this Agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 16 hereof; and (ii) any other service or other agreements required to fulfill GKF 's obligations to JFK pursuant to this Paragraph 10(d). GKF represents and warrants that during the entire Term of this Agreement and any subsequent extensions thereof it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and / or Elekta's warranties to GKF. In no event, however, shall the warranty obligations of GKF to JFK with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment.
(e) GKF shall fully indemnify and hold harmless JFK in the event that JFK suffers any loss, damage, claim or expense (including reasonable attorneys ' fees) solely as a result of GKF ' s breach of the Purchase Agreement or GKF ' s failure to enforce the Service Agreement (but only to the extent that the primary obligation to enforce the Service Agreement is not assigned by GKF to JFK pursuant to Paragraph 16 below).
11. Ownership/Title . It is expressly understood that JFK shall acquire no right, title or interest in or to the Equipment, other than the right to the possession and use of the same in accordance with the terms of this Agreement.
GKF may at its sole discretion finance the Equipment. Financing maybe in the form of an installment loan, a capitalized lease or other commercially available debt or financing instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease, tit le shall vest with the lessor until GKF exercises its buy- out option. 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. JFK ' s interest under this Agreement shall be subject to the interests of the Lender.
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GKF and JFK acknowledge that GKF has not finalized the principal terms and conditions of its financing agreement, lease or loan (collectively a “financing agreement”) with the Lender in connection with the Equipment subject to this Agreement. GKF shall notify JFK when it receives a firm written commitment from the Lender setting forth the principal terms and conditions of the financing agreement for the Equipment subject to this Agreement. lf the firm written commitment received from the Lender contains a cross -d efault provision as one of the principal terms and conditions of the financing agreement (a) GKF shall so notify JFK as a part of the written notice given to JFK in accordance with the preceding sentence, and (b) during the thirty (30) day period after such written notice is given to JFK, JFK shall have the right to terminate this Agreement by giving a written notice of termination to GKF. If JFK exercises its right of termination, this Agreement shall terminate as of the end of such thirty (30) day period, all parties shall thereafter be excused from the performance of any obligations or duties hereunder, and neither GKF or JFK shall have any recourse (whether legal, equitable or otherwise) against the other for any claims in any manner arising out of or related to such termination . If JFK does not exercise its right of termination during such thirty (30) day period, this Agreement shall continue in full force and effect in accordance with the provisions hereof
GKF shall instruct the Lender to notify JFK within ten (10) days of any payment defaults by GKF under the financing agreement for the Equipment installed at the Site (a “Payment Default “ ). In the event of a Payment Default, if GKF has not provided reasonably satisfactory evidence to JFK that it has cured the Payment Default within twenty (20) days after JFK's receipt of the default notice from the Lender, JFK may, in its sole discretion, cure the default on behalf of GKF by payment of the amounts due directly to the Lender and, in such event, JFK may offset subsequent payments owing to GKF pursuant to Paragraph 7 above (i.e., the per procedure payments) against the amount paid b y JFK to the Lender until JFK is reimbursed in full. Once it is reimbursed in full, JFK shall again make all payments to GKF when and as required pursuant to Paragraph 7. above.
12. Cost of Use of the Equipment . Except as is otherwise provided herein, JFK shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. JFK shall be fully responsible and liable for all acts and / or omissions of such professional, technical and support personnel.
13. Taxes . GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local Government, levied or based on this A gr eement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of JFK.
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14. Maintenance and Inspections . Subject to the assignment of its rights under the Service Agreement to JFK pursuant to Paragraph 16 below and the responsibilities of Elekta thereunder, GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a goo d state of repair, reasonable wear and tear excepted. A maintenance schedule for the Equipment is attached hereto as Exhibit 3. JFK shall be liable to GKF for all damage to the Equipment caused by the misuse, negli ge nce, improper use or other intentional or negligent acts or omissions of JFK ' s employees, officers, agents, and ph ys icians . JFK 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 that is not covered by the Service A gr eement described in Paragraph 16 below.
GKF and Elekta shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to JFK ' s operations. In the event the Equipment is improperly used by JFK or its employees, agents, officers, and physicians, GKF may service or repair the same as needed and such expense shall be paid by JFK, unless the repair is covered by the Service Agreement described in Paragraph 16 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of JFK's failure or ne g lect to do so shall not deprive GKF of any of its ri g hts, remedies or actions against JFK for damages caused by such failure or neglect.
15. Equipment Modifications / Addition s/U pgrades . The necessit y and financial responsibility for modifications, additions or upgrades to the Equipment, includin g the reloading of the Cobalt-60 source, shall be mutually agreed upon by GKF and JFK. In the event GKF and JFK agree to reload the Cobalt-60 source (i.e., in approximately the eighth (8th) year of the Term), GKF shall pay the costs associated therewith and, notwithstanding any provision s to the contrary herein, the initial Term shall be extended for an additional five (5) years (i.e., the Term is extended from 10 to 15 years).
16. Service Agreement . GKF warrants that, simultaneously with the execution of this Agreement, it shall enter into a Service Agreement with Elekta (the “Serv ice Agreement”), a copy of which is attached as Exhibit F to the LGK Agreement (attached hereto as Exhibit 1) and incorporated herein by this reference. Following the execution thereof and subject to the consent of Elekta, GKF shall assign to JFK in writing all of its rights arising under the Service Agreement, including the right to enforce the provisions thereof directly against Elekta. By virtue of said assignment, GKF shall be relieved of all responsibility and shall not in any manner be or become liable for the performance of the Service Agreement by Elekta or any other person. Notwithstanding the assignment, GKF shall continue to use its best efforts to cause Elekta to perform its obligations under the Service Agreement in a timely manner.
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17. Termination . If, after the initial twenty-four (24) month following the First Procedure Date and each subsequent twelve (12) month period thereafter, as soon as reasonably possible following a written request therefor, JFK has not provided GKF with a reasonable economic justification for GKF to continue to provide the Equipment pursuant to this Agreement (which reasonable economic justification may include, but not be limited to, JFK's utili za tion of the Equipment, GKF ' s acquisition costs, financing costs, and service and maintenance costs for the Equipment, and a reasonable return on GKF ' s investment), GKF shall have the option to terminate this Agreement by giving a written notice of termination to JFK not less than ninety (90) days prior to the termination date designated in GKF's written notice . If JFK objects to GKF's notice of termination, JFK shall give written notice of its objections to GKF not less than sixty (60) days prior to GKF's designated termination date. In such event, the parties shall confer to attempt to resolve JFK's objections. If the parties cannot resolve the objections, the matter shall be submitted to arbitration in the manner described in Paragraph 29(d) below . Notwithstanding the foregoing, in the event that GKF elects to terminate this Agreement in the manner provided herein, JFK shall have the option to purchase the Equipment from GKF on the termination date on the same terms as described in Paragraph 18(a)(ii) below by giving written notice to GKF of the exercise of its option not less than thirty (30) days prior to the designated termination date . The purchase price for the Equipment shall be payable by JFK to GKF in cash on the designated termination date.
18. Options to Extend Agreement .
(a) JFK shall have the option at the end of the initial Term to :
(i) Renegotiate this Agreement for a specified renewal term taking into account the use (e.g., number of procedures, etc.) of the Equipment at the Site during the initial Term .
(ii) Purchase the Equipment from GKF for cash (or other immediately available funds) at its then fair market value (based upon the “ in use” value of the Equipment), but excluding any value attributable to the Site, as determined by a qualified independent appraiser or appraisal company agreed upon by GKF and JFK. The qualified independent appraiser or appraisal company (or its principals or employees) shall be a member of a nationally recognized appraisal society or association of business appraisers and have at least five (5) years experience in the appraisal of Gamma Knife equipment and other similar high technology medical equipment. If GKF and JFK are unable to agree upon the selection of an independent appraiser, each shall name two (2) qualified independent appraisers (i.e., a total four (4) named appraisers), the name of each designated independent appraiser shall be written in black ink on a blank sheet of white paper (i.e., one name on each sheet of paper), each sheet of paper shall be placed in an identical blank white envelope and sealed (i.e . , four (4) separate envelopes) and the then serving Chief Executive Officer of JFK shall randomly pick one of the envelopes in the presence of a representative of GKF . The name of the independent appraiser in the envelope picked by the Chief Executive Officer shall serve for purposes hereof.
(iii) Terminate this Agreement. If JFK terminates this Agreement at the end of the initial term, GKF shall remove the Equipment from the Site not more than ninety (90) days after the expiration of the initial Term.
JFK shall exercise one (1) of the three (3) options referred to above, by mailing an irrevocable written notice thereof to GKF at the address provided pursuant to Paragraph 23 below by registered mail, postmarked 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 JFK elects to exercise its option and states which of the three (3) options referred to above JFK is exercising.
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19. No Warranties by GKF . JFK warrants that as of the First Procedure Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a size, design, capacity and manufacture selected by it; and (c) satisfied itself that to the best of its knowledge the Equipment is suitable for JFK's stated purposes. GKF SUPPLIES THE EQUIPMENT “AS IS ”. 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 MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks, as between GKF and JFK, shall be borne by JFK. JFK agrees to look solely to the Elekta or to the other suppliers of the Equipment (and its software) for any and all warranty claims. To the extent Elekta makes any warranties with respect to the Equipment for the benefit of GKF which are not also made for the benefit of , or are not directly enforceable by , JFK under the LGK Agreement, GKF shall assign to JFK in writing all of its rights arising under said warranties, including the right to enforce the provisions thereof directly against Elekta. Assignment of GKF ' s warranty rights shall be subject to the consent of Elekta. By virtue of said assignment, GKF shall be relieved of all responsibility and shall not in any manner be or become liable for the performance of the warranties by Elekta or any other person. Notwithstanding the assignment, GKF shall continue to use its best efforts to cause Elekta to perform its warranty obligations in a timely manner. GKF shall not be responsible for the delivery, installation or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage suffered or incurred by JFK resulting from the installation, operation or use of the Equipment or otherwise. JFK 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.
20. Events of Default by JFK and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) JFK fails to pay any installment of semi-monthly procedure payments when due pursuant to Paragraph 7. above and such default continues for a period of thirty (30) days after written notice thereof from GKF or its assignee is given to JFK;
(b) JFK attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) JFK shall fail to observe or perform any other material obligations required to be observed or performed by JFK hereunder and such failure shall continue uncured for thirty (30) days after written notice thereof to JFK by GKF; however, if a breach or failure reasonably requires more than thirty (30) days to cure, then an Event of Default shall not occur if JFK commenced to cure the breach or failure during the initial thirty (30) day period and diligently pursues the cure to completion as soon as reasonably possible following the end of the initial thirty ( 30) day period;
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(d) JFK 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; or
(e) Within sixty (60) days after the commencement of any proceedings against JFK 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 JFK '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.
Upon the occurrence of an Event of Default, GKF may at its option do any or all of the following: (i) by notice to JFK, terminate this Agreement as to the Equipment, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause JFK and JFK hereby agrees to return the Equipment to GKF at JFK ' s so le cost and expense; (ii) recover from JFK as liquidated damages for the loss of the bargain and not as a penalty an amount equal to the present value of the unpaid estimated future lease payments to be made by JFK to GKF through the end of the Term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable and which unpaid estimated future lease payments shall be based on the prior twelve ( 12) months lease payments with an annual five (5%) percent increase; or (iii) sell, dispose of, hold, use or lease the Equipment, as GKF in its sole 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 then owned or leased by GKF). In any event, JFK shall, without further demand, pay to GKF an amount equal to all sums due and payable under Paragraph 7 above for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event that GKF elects to terminate this Agreement in the manner provided herein because of an Event of Default, JFK shall have the option to purchase the Equipment from GKF on the termination date by giving written notice to GKF of the exercise of the option not more than thirty (30) days after the date of the occurrence of the Event of Default. In the event JFK exercises the option during the applicable period, the purchase price to be paid by JFK to GKF for the Equipment shall be an amount equal to the fair market value of the Equipment determined in the same manner as described in Paragraph l 8(a) (ii) above as if the purchase occurred on the expiration of the Term (i . e., the fair market value at the end of 10 years). The purchase price for the Equipment shall be payable by JFK to GKF in cash not more than thirty (30) days following the exercise of the option. The payment of the purchase price by JFK to GKF under this paragraph shall be in addition to, and not supplant or replace, any damages or other amounts for which JFK may be liable to GKF under this Agreement as a result of the Event of Default, including, without limitation, the damages described in subpart (ii) of the preceding paragraph.
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In the event JFK shall have paid to GKF the liquidated damages amount referred to in subpart (ii) of the second preceding paragraph, GKF shall pay to JFK 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 expenses incurred by GKF, said amount never to exceed the amount of the liquidated damages paid by JFK); however, GKF shall not be required to pay to JFK any amount received by GKF as a result of the exercise of the option to purchase pursuant to the immediately preceding paragraph . GKF shall use its reasonable efforts to sell or relet the Equipment; however, GKF shall have no obligation to sell or relet the Equipment . JFK shall in any event remain fully liable for reasonable damages as 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. JFK hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
21. Events of Default by GKF and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) GKF shall fail to observe or perform any of its material obligations required to be observed or performed by GKF hereunder and such failure shall continue uncured for thirty (30) days after written notice thereof by JFK to GKF; however, if a breach or failure reasonably requires more than thirty (30) days to cure, then an Event of Default shall not occur if GKF commenced to cure the breach or failure during the initial thirty (30) day period and diligently pursues the cure to completion as soon as reasonably possible following the end of the initial thirty (30) day period;
(b) Lender declares GKF in default under any financing agreements entered into by GKF to finance the acquisition of the Equipment (subject to the lapse of all applicable cure periods without the remedy of the default by GKF);
(c) 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; or
(d) 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.
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Upon the occurrence of an Event of Default, JFK may at its option do any or all of the following: (i) by notice to GKF, terminate this Agreement as to the Equipment and, in such event, GKF shall remove the Equipment at GKF's sole cost and expense or, in the absence of removal by GKF within a reasonable period of time after a written request therefor, for JFK to remove the Equipment with all due care and store the Equipment at GKF's sole cost and expense; or (ii) to recover from GKF such damages as may be realized by JFK from the loss of the bargain . GKF shall in any event remain fully liable for reasonable damages as 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. However, GKF shall not in any manner be or become liable to JFK for any consequential damages arising out of or resulting from the Event of Default. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Notwithstanding the foregoing, in the event that GKF elects to terminate this Agreement in the manner provided herein as a result of an Event of Default, JFK shall have the option to purchase the Equipment from GKF on the same terms as described in Paragraph 18(a)(ii) above by giving written notice to GKF of the exercise of its option not more than thirty (30) days after the date of the occurrence of the Event of Default. The purchase price for the Equipment shall be payable by JFK to GKF in cash not more than thirty (30) days following the exercise of the option.
22. Insurance .
(a) During the Term of this Agreement (and any renewal terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. JFK shall be named as an additional insured party on the all risk and hazard insurance policy to the extent of its interest in the Equipment arising under this Agreement. The all risk and hazard insurance policy maintained by GKF shall be evidenced by a certificate of insurance or other reasonable documentation which shall be delivered by GKF to JFK upon request following the commencement of this Agreement and as of each annual renewal of such policy during the Term.
(b) During the Term of this Agreement, JFK shall, at its own cost and expense, keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by JFK. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $5,000,000 annual aggregate. GKF shall be named as additional insured party on the insurance policies to be maintained hereunder by JFK. The policies to be maintained by JFK hereunder shall be evidenced by a certificate of insurance or other reasonable documentation which shall be delivered by JFK to GKF no later than the First Procedure Date and as of each annual renewal of such policies during the Term. As an alternative to providing the insurance policies described herein, JFK may protect against the risks covered by public liability and professional liability insurance policies through a reasonably funded self-insurance program. In the event JFK elects to provide the coverage described herein through a self- insurance program, upon the commencement of the Term and as of each commencement of each twelve (12) month period thereafter, JFK shall provide written documentation to GKF evidencing (a) the establishment and existence of the self-insurance program, (b) the reasonable funding of the self - insurance program based upon the risks described herein and the other risks intended to be covered by the program, and (c) GKF ' s rights as a party entitled to protection from the self-insurance program for the risks described herein.
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(c) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, JFK shall give to GKF immediate notice thereof. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, GKF, at its sole cost and expense, shall replace the Equipment as soon as reasonably possible based upon the availability of replacement equipment from Elekta and within the limits of Elekta ' s manufacturing capabilities. The replacement equipment shall be the same or a similar model (based upon the models for the Gamma Knife units then manufactured by Elekta) as the Equipment subject to this Agreement. 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.
23. Notices . Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Mr. Craig K. Tagawa |
Chief Executive Officer | |
GK Financing, LLC | |
Four Embarcadero Center, Suite 3620 | |
San Francisco, CA 94111 | |
To JFK: | Mr. Scott Gebhard |
Senior Vice President | |
JFK Health Systems | |
65 James Street | |
Edison, NJ | |
08818-3059 | |
With copies to: | Sean Patrick Murphy, Esq . |
Vice President and General Counsel | |
JFK Health Systems | |
80 James Street | |
Edison, NJ 08818-3059 |
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Mr. Ray Fredericks | |
Senior Vice President & Chief Financial Officer JFK Health Systems | |
80 James Street | |
Edison, NJ 0881 8-3059 |
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
24. Integration . This Agreement and all Exhibits attached hereto contain the full and entire agreement between the parties hereto , and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
25. Waivers . To the extent that a party fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such failure or decision not to act shall not prejudice such party's rights to pursue any of those remedies at any future time and shall not constitute a waiver of its rights.
26. Assignments . This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this Agreement without the express written consent of the other (which consent shall not be unreasonably withheld ).
27. Amendments . This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties .
28. Record-Keeping Requirements . To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authori z ed representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by JFK by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by JFK, it being understood that, inasmuch as JFK is entering into this Agreement in reliance on GKF's reputation and expertise, that JFK shall be the sole judge of the reputation and expertise of the proposed delegee, and only through a subcontractor which provides that, until the expiration of four ( 4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by JFK by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
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29. Miscellaneous Provisions .
(a) Validity . The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) Attorneys Fees . In the event of any claim or controversy arising hereunder, the prevailing part y in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled. The prevailing party shall be determined by the arbitrators pursuant to an arbitration conducted in accordance with Paragraph 29 (d) below .
(c) 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 commence performance of their respective obligations under this Agreement.
(d) Arbitration . An y controversy or claim between the parties arising out of or relating to this Agreement shall be submitted to arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association, with the arbitration to be conducted in Washington, D.C. The award of the arbitrators shall be final and binding upon the parties hereto . Judgment upon the award issued by the arbitrators may be entered in any court of competent jurisdiction.
(e) Confidentiality . GKF and JFK shall keep the terms and conditions of this Agreement strictly confidential and neither party shall (except as required by applicable law, regulation or legal process, and only after compliance with the remainder of this paragraph), without the prior written consent of the other party, (i) disclose any of the terms and conditions of this Agreement in any manner whatsoever, and (b) will not use any of the terms and conditions of this Agreement in any manner whatsoever other than in connection with the performance of their respective obligations hereunder. In the event that either GKF or JFK is, or any of its representatives are, requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the terms and conditions of this Agreement, such party shall notify the other party promptly so that it may seek a protective order or other appropriate remedy or, in its discretion, waive compliance with the terms of this paragraph. In the event that no protective order or other remedy is obtained, or a party waives compliance with the terms of this paragraph, the party will furnish only that portion of the terms and conditions of this Agreement which it is advised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such terms and conditions.
[SIGNATURE PAGE AND EXHIBITS FOLLOW]
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IN WITNESS HEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
The Community Hospital Group, Inc. | GK Financing, LLC, | |||
dba JFK Medical Center, | a California limited Liability Company | |||
a New Jersey corporation | ||||
By : | /s/ John P. Mcgee /s/ J . Scott Gebhardt | By: | /s/ Craig K. Tagawa | |
John P. Mcgee, President and CEO | Craig K. Tagawa, CEO | |||
J. Scott Gebhrdt, Senior VP-Operations [Print Name and Title] |
[Print Name and Title] |
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EXHIBIT 1
LGK AGREEMENT
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EXHIBIT 2
PURCHASE AGREEMENT
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EXHIBIT 3
MAINTENANCE SCHEDULE
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Exhibit 10.8a
ADDENDUM ONE
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM ONE TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Addendum”) is dated on January 9, 2008, but is made effective as of July 1, 2002, between The Community Hospital Group, Inc., dba JFK Medical Center, a New Jersey corporation (“JFK”), and GK Financing, LLC, a California limited liability company (“GKF”).
RECITALS
WHEREAS, on or about December 11, 1996, GKF and JFK executed a Lease Agreement for a Gamma Knife Unit (the “Original Lease”);
WHEREAS, effective July 1, 2002, the parties verbally agreed to modify certain terms of the Original Lease, but inadvertently neglected to execute a document memorializing the same; and
WHEREAS, the parties desire to enter into this Addendum in order to memorialize their verbal agreement effective July 1 2002, to modify terms of the Original Lease.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Defined Terms. Unless otherwise defined herein, the capitalized terms used herein shall have the same meaning set forth in the Original Lease.
2. Per Procedure Payments. In recognition of the decreases in the Medicare reimbursement rates which occurred after the Original Lease was entered into, and pursuant to Section 7 of the Original Lease, the per procedure payment for the use of the Equipment shall be reduced from the per procedure rate set forth in the Original Lease of Nine Thousand Five Hundred Dollars ($9,500) per procedure, to the following amounts:
(a) From July I, 2002 through and including December 31, 2002, the per procedure payment payable by JFK to GKF shall be equal to Nine Thousand Dollars ($9,000) per procedure.
(b) From and after January I, 2003, the per procedure payment payable by JFK to GKF shall be Eight Thousand Five Hundred Dollars ($8,500) per procedure.
3. Marketing Support. The last sentence of Section 9(e) of the Original Lease shall be deleted in its entirety and replaced with the following:
“As funds are expended by JFK in accordance with the marketing budget and plan, JFK shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GK.F shall reimburse JFK for fifty percent (50%) of the expenditures up to the GKF limit of One Hundred Thousand Dollars ($100,000) per year.”
4. Full Force and Effect. Except as otherwise amended hereby or provided herein, all of the terms and provisions of the Original Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the date first written above.
GKF: | JFK: |
GK FINANCING, LLC | THE COMMUNITY HOSPITAL GROUP, INC., dba JFK MEDICAL CENTER |
By: /s/ Ernest A. Bates, M.D. | By: /s/ J. Scott Gebhard |
Policy Committee Member | Name: J. Scott Gebhard |
Title: EVP/COO |
Exhibit 10.8b
ADDENDUM TWO
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM TWO TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Addendum”) is dated effective as of January 9, 2008, between The Community Hospital Group, Inc., dba JFK Medical Center, a New Jersey corporation (“JFK”), and GK Financing, LLC, a California limited liability company (“GKF').
RECITALS
WHEREAS, on December 11, 1996, GKF and JFK executed a Lease Agreement for a Gamma Knife Unit (the “Original Lease”), which lease agreement was amended by a certain Addendum One dated effective as of July l, 2002 (such Lease Agreement, as amended by such Addendum One, is referred to herein as the “Lease”); and
WHEREAS, the parties desire to further amend the terms and provisions of the Lease as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Extension of Lease Term .
a. It is acknowledged that the First Procedure Date under the Lease was April 25, 2000, and therefore, pursuant to Section 4 of the Lease, the initial Term of the Lease will expire at 11:59 p.m. on April 24, 2010.
b. In consideration of the “Reload” of the cobalt-60 source as described below, the Term of the Lease as set forth in Section 4 thereof, is hereby extended for an additional five (5) year period (the “Extension”), which Extension shall commence at 12:00 a.m. on April 25, 2010, and shall continue until 11:59 p.m. on April 24, 2015, at which time the Term shall expire.
c. All references in the Lease to the “Term” shall be deemed to refer to the Term, as extended by the Extension.
3. Cobalt Reload of the Equipment . Section 15 of the Lease is hereby deleted in its entirety and replaced with the following:
“15.1 Cobalt Reload . Subject to the terms and conditions set forth below, (a) GKF, at GKF’s cost and expense, shall reload the Equipment with new cobalt-60 that meets the manufacturer's radioactivity level specifications (the “Reload”), which Reload shall be performed at the Site and shall include any required installation and rigging; and (b) GKF shall use its commercially reasonable efforts to perform the Reload in first quarter 2008, subject to scheduling availability. It is anticipated that the Equipment will be unavailable to perform procedures for approximately four (4) weeks due to the Reload process.
“15.2 JFK Support . In connection with the Reload, JFK, at JFK's cost and expense, shall provide GKF with JFK personnel (including JFK's physicists) and services upon request and as required by GKF, among other things, to oversee, supervise and assist with construction and compliance with local, state and federal regulatory requirements and with nuclear regulatory compliance issues and the calibration of the Equipment.
“15.3 Permits . Notwithstanding the foregoing, the Reload shall be performed by GKF only after all necessary and appropriate licenses, permits, approvals, consents and authorizations, including, without limitation, the proper handling of the cobalt-60 (collectively, the “Permits”), have been obtained by JFK at JFK's sole cost and expense (other than any filing or registration fees which shall be paid for by GKF). The timing and procedure for such Reload shall be as mutually agreed upon between the parties. Notwithstanding anything to the contrary contained in this Agreement, GKF makes no representation or warranty to JFK concerning the Reload, and GKF shall have no obligation or liability to pay any damages to JFK resulting therefrom, including, without limitation, any lost revenues or profits during the period of time that the Equipment is unavailable to perform procedures due to the Reload process.”
4. Per Procedure Payment . Commencing from and after the first procedure performed using the Equipment following the completion of the cobalt-60 Reload, the per procedure payment for the use of the Equipment as set forth in Section 7 of the Lease shall be equal to Eight Thousand Dollars ($8,000) per procedure.
5. No Responsibility for Additional Upgrades or Reloading . It is understood by the parties that GKF is not responsible for any additional upgrades, hardware, cobalt reloading, software changes and/or other modifications to the Equipment, except as expressly set forth herein or otherwise agreed upon in writing by JFK and GKF.
6. Assignment by GKF to Subsidiary . GKF may, at any time, assign all of its rights and obligations under the Lease (as now or hereafter amended) to its wholly-owned subsidiary whose obligations thereunder shall be guaranteed by GKF.
7. Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum Two.
8. Full Force and Effect . Except as amended by this Addendum Two, all of the terms and provisions of the Lease shall remain in full force and effect, including, without limitation, the charity care provisions set forth in Section 7 of the Lease.
IN WITNESS WHEREOF, the parties have executed this Addendum Two effective as of the date first written above.
GKF : | JFK : |
GK FINANCING, LLC | THE COMMUNITY HOSPITAL GROUP, INC., dba JFK MEDICAL CENTER |
By: /s/ Ernest A. Bates, M.D. | By: /s/ J. Scott Gebhard |
Policy Committee Member | Name: J. Scott Gebhard |
Title: EVP/COO 1/9/08 |
Exhibit 10.9
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT on June 3, 1999, (hereinafter, referred to as the “Agreement” ) is entered into between GK Financing, LLC, a California Limited Liability Company, (hereinafter referred to as “GKF”), and Sunrise Hospital and Medical Center, LLC, d/b/a as Sunrise Hospital and Medical Center, a Nevada corporation, (hereinafter referred to as “Medical Center'').
RECITALS
WHEREAS, Medical Center wants to lease a Leksell Stereotactic Gamma Unit 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 Medical Center, pursuant to the terms and conditions of this Agreement.
NOW, therefore, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Medical Center and Elekta . Medical Center agrees that simultaneously with the execution of this Agreement it shall execute that certain LGK Agreement with Elekta, (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Medical Center agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement. Medical Center shall fully indemnify and hold harmless GKF in the event that GKF suffers any loss, damage, claim or expense (including attorneys' fees) solely as a result of Medical Center's breach or alleged breach of the LGK Agreement.
2. Delivery of the Equipment and Site preparation . GKF shall arrange to have the Equipment delivered to Medical Center, at ____________ (the “Site”) in coordination with Elekta. GKF shall exert its best faith efforts to expedite the delivery of the Equipment in accordance with the terms and conditions of the Purchase Agreement for the Equipment by and between GKF and Elekta. Notwithstanding the preceding sentence, it is understood and agreed that GKF has made no representations and warranties to Medical Center concerning actual delivery dates or schedules for the Equipment at the Site.
Medical Center shall provide a safe, convenient and properly prepared Site, at its own expense, in accordance with all of the Equipment manufacturer's (Elekta's) guidelines, specifications, technical instruments and Site Planning Criteria (which Site Planning Criteria are attached hereto as Exhibit B and incorporated herein by this reference),which criteria shall include Elekta’s estimated delivery schedule when and as received by GKF, on Medical Center controlled property (The “Site”) for the proper performance of Gamma Knife procedures. Site location shall be acceptable to GKF. Medical Center shall prepare at its sole cost and expense the requisite site-plans and specifications and shall submit them to Elekta and GKF for approval. Medical Center shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance tests, and the use of the Equipment all as more fully set forth in Article 2.1of the LGK Agreement.
3. Commencement of Term . The Term (hereinafter defined) of this Agreement shall commence upon the performance of the first clinical Gamma Knife procedure at the Site (the “Commencement Date”). Medical Center shall become liable to GKF for the payments referred to in Paragraph 6 herein below upon the Commencement Date.
4. Costs of Site Preparation: Costs of Installation . Medical Center's obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in accordance with such plans and specifications, being in full compliance with Elekta's Site Planning Criteria. Medical Center shall at its own expense and risk, prepare, construct and make ready the Site as necessary, for the installation of the Equipment, including, but not limited to, providing any temporary and/or permanent shielding for the charging of the equipment and its use, selecting and preparing a proper foundation for the Equipment and for such shielding and walls, as well as proper alignment of the Site and wiring. Medical Center shall be financially responsible for the positioning of the Equipment on its foundation at the Site.
Medical Center shall also at its own expense select, purchase and install all radiation monitoring equipment and devices, safety circuits and radiation warning signs needed for the Equipment at the Site, according to all applicable federal, state and local laws, regulations, recommendations or custom.
Upon completion of the Site, Medical Center shall warrant that the Site will be safe and suitable for its use of the Equipment. Medical Center shall fully indemnify and hold harmless GKF from any and all loss, liability, damage, expense or claim (including attorneys' fees) which GKF may suffer and incur and which relate to the Site and the Equipment's positioning thereon.
Medical Center shall be liable to GKF for any damage to the Equipment caused by (a) defects in construction of the Site or defects in the positioning of the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by Medical Center with respect to the Site; or (c) negligent or intentional acts of omission or commission by Medical Center or any of its officers, agents, physicians, and employees in connection with the Site preparation or operation of the Equipment at the Site.
Medical Center warrants that it shall utilize its best efforts to fulfill on an expeditious basis its obligations under this Paragraph 4. Medical Center further warrants that it shall on a regular basis keep GKF informed of Medical Center's progress in fulfilling its obligations pursuant to this Paragraph 4. Should Medical Center not have all site preparations completed by the delivery date specified by a separate agreement plus a sixty (60) day grace period such that the site is acceptable for positioning and installation of the equipment, Medical Center shall reimburse GKF at an interest rate of Bank of America's prime rate plus 2% on GKF's equipment cost until the site is prepared to allow positioning and installation of the equipment.
5. Term of the Equipment . GKF agrees to provide to Medical Center the Equipment pursuant to the terms of this Agreement, for a term of ten (10) years from the Commencement Date as described in Paragraph 3 herein above (the “Term”), unless terminated earlier as provided herein.
6. Per Procedure Payments . Medical Center shall pay to GKF a per procedure payment as specified in Exhibit B for the use of the Equipment. A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session. Medical Center shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively. Medical Center shall pay the procedures invoiced within thirty (30) days after being invoiced. Interest shall begin to accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days.
(a) lf the “Reimbursement Rate” in effect on any “Reset Date” is twenty-five percent (25%) greater or less than the “Base Rate,” Medical Center shall inform GKF in writing within thirty (30) days after the applicable Reset Date and shall provide GKF with the information used in calculating such Reimbursement Rate. Within thirty (30) days after GKPs receipt of such notice, the parties shall meet to renegotiate in good faith the per procedure payments payable by Medical Center under this Agreement.
(b) In determining the renegotiated per procedure payment any reduction or increase thereto may or may not be in proportion to the reduction or increase to the Reimbursement Rate. Furthermore, any reduction to the per procedure payment will be calculated to provide Medical Center with Operating Income estimated at a break even level as a result of such reduction; provided that no per procedure payment shall be imposed if it would result in negative Operating Income to GKF in accordance with subsection (c) below. Medical Center shall permit GKF to inspect Medical Center's books and records pertaining to the Equipment in order to verify such Operating Income.
(c) If the per procedure payment proposed by Medical Center would result in negative “Operating Income” (as defined below) to GKF, then, GKF shall have no recourse to arbitration as provided in this Section 6. In such event, this Agreement shall remain unchanged and in full force and effect. GKF shall permit Medical Center to inspect GKF's books and records pertaining to the Equipment in order to verify such Operating Income.
(d) If the per procedure payment proposed by Medical Center would not result in GKF incurring negative Operating Income, but the parties are unable to agree in good faith on a renegotiated per procedure payment, then, GKF and Medical Center shall jointly appoint an arbitrator who shall have not less than ten (10) years experience in medical equipment financing, in good standing with the American Arbitration Association or other comparable organization, and who shall have no prior relationship, attorney/client or otherwise, with any of the parties. Such arbitrator shall review the information presented by both parties and shall render a decision within thirty (30) days of his or her appointment. In rendering a decision, the arbitrator shall be bound by the guidelines set forth in this Section, including, without limitation; the parameters for renegotiated per procedure payments as set forth in subsection (a), (b), (c), above and this subsection (d). The arbitrator's decision shall be binding upon the parties and non-appealable. The fees and expenses of the arbitrator shall be shared equally between the parties. The foregoing arbitration procedure shall apply only to disagreements arising from this subsection (d) and not to any other disputes or disagreements arising from this Agreement.
(e) If the parties mutually agree on a renegotiated per procedure payment or if a renegotiated per procedure payment is determined by the arbitrator as set forth above, then such renegotiated per procedure payment shall become effective on the date that is six (6) months following the applicable Reset Date, and Exhibit B hereto shall be deemed automatically amended as of such date.
(f) Definition of terms: As used herein, (i) the “Reimbursement Rate” shall mean the average technical component reimbursement received by Medical Center from all payor sources in effect as of any Reset Date; (ii) the “Base Rate” shall mean the average technical component reimbursement received by Medical Center from all payer sources in effect on the date which is one year after the Commencement Date; (iii) the “Reset Date” shall mean the date which is two (2) years after the Commencement Date and each anniversary date thereafter; and (iv) “Operating Income” with respect to either party shall mean the revenues generated by such party from the Equipment less such party's corresponding direct operating expenses related to the Equipment, including, without limitation, applicable interest and depreciation expenses on the Equipment and Site improvements, but excluding physician professional fees and direct or indirect administrative overhead expenses.
As a means to permit Medical Center to perform charity care for persons who require Gamma Knife procedures, who are not covered by Medicare, Medicaid or private insurance programs (whether indemnity, preferred provider, health maintenance organization, etc.) and who do not have the means to pay for such procedures based upon state adopted standards of indigency, GKF shall waive the per procedure payment described in this paragraph 6 for one (1) Gamma Knife procedure for each fifty (50) Gamma Knife procedures performed under this Agreement by Medical Center for which a per procedure payment is made to GKF in the manner describe herein. Medical Center shall be solely responsible (and GKF shall not in any manner be or become responsible) to determine (a) whether any person described herein requires a Gamma Knife procedure, (b) who shall receive a Gamma Knife procedure hereunder if more than one (1) person described herein requires a Gamma Knife procedure, and (c) whether any person meets the standards of indigency. Medical Center shall provide reasonable written documentation evidencing satisfaction of the conditions set forth herein to GKF at or prior to the time of payment in order for GKF to waive the per procedure payment set forth in this paragraph 6 for each Gamma Knife procedure regardless of the ability of the patient to pay for such services or the amount of reimbursement or payment received by Medical Center.
Prior to entering into or renewing any third party payor contracts for the provisions of Gamma Knife procedures, Medical Center shall consult with GKF regarding the terms and provisions thereof.
7. Use of the Equipment . The Equipment may be used by Medical Center only at the location stated above and shall not be removed therefrom. Medical Center shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF; which consent shall not be unreasonably withheld. No permitted assignment or sublease shall relieve Medical Center of any of its obligations hereunder. Medical Center shall not use nor permit the Equipment to be used in any manner nor for any purpose for which, in the opinion of Elekta or GKF, the Equipment is not designed or reasonably suitable. Medical Center shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. Medical Center shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Medical Center shall, at GKF's request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
8. Additional Covenants of Medical Center . In addition to the other covenants made by Medical Center, Medical Center shall at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment.
(b) Assume all medical and financial-responsibility for the overseers' monitoring of all patients' medical condition and treatment.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Indemnify GKF as herein provided: (i) Medical Center hereby agrees to fully indemnify and/or reimburse (including attorneys' fees) GKF on a prompt basis for any and all damage to the Equipment (including any violations by Medical Center, its agents, officers, physicians, employees, successors and assigns of the Service Agreement described in Paragraph 15 hereof) to the extent such damages are caused by the negligent or wrongful acts or omissions of Medical Center, its agents, officers, physicians and employees. In the event the Equipment is destroyed or rendered unusable, this indemnification 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. (ii) Medical Center hereby further agrees to indemnify and hold GKF, its agents, officers, employees, successors and assigns, harmless from and against any and all claims, liabilities, obligations, losses, damages, injuries, penalties, actions, costs and expenses (including attorneys' fees) for all events and/or occurrences described in Article 7.3 of the LGK Agreement to the same extent that Medical Center agrees to indemnify Elekta thereunder. Medical Center further agrees to fully indemnify and hold harmless GKF for any loss, damage, claim, or expense (including attorneys' fees) GKF may suffer or incur as a result of Medical Center's breach or breach alleged in litigation with regard to the LGK Agreement.
(e) Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.) and marketing support from an administrative and physician (i.e. seminars by neurosurgeons and radiation therapists to referring physicians, etc.) commitment for this clinical service.
9. Additional Covenants. Representations and Warranties of GKF . In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to Medical Center that, upon delivery of the Equipment to Medical Center, GKF shall use its best faith efforts to require that Elekta meets its contractual obligations to GKF and in putting the Equipment, as soon as 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.
(c) GKF represents and warrants that throughout the term of this Agreement, Medical Center shall 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 or under Elekta's Purchase Agreement with GKF.
(d) During the entire term of this agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 15 hereof; and (ii) any other service or other agreements required to fulfill GKF's obligations to Medical Center pursuant to this Paragraph 9(d). GKF represents and warrants that during the entire term of this agreement and any subsequent extensions thereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and/or Elekta's warranties to GKF. In no event, however, shall the warranty obligations of GKF to Medical Center with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment.
10. Ownership/Title . It is expressly understood that Medical Center shall acquire no right, title or interest in or to the Equipment, other than the right to the possession and use of the same in accordance with the terms of this Agreement.
GKF may at its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a capitalized lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease title shall vest with the lessor until GKF exercises its buy-out option. In addition, should GKF finance the Equipment, said agreement may be used as collateral against the loan.
11. Cost of Use of the Equipment . Except as is otherwise provided herein, Medical Center shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. Medical Center shall be fully responsible and liable for all acts and/or omissions of such professional, technical and support personnel.
12. Taxes . GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of Medical Center.
13. Maintenance and Inspections . GKF agrees to exercise due and proper .care in the maintenance of the Equipment and to keep the Equipment in a good state of repair, reasonable wear and tear excepted. Medical Center shall be liable to GKF for all damage to the Equipment caused by the misuse, negligence, improper use or other intentional or negligent acts or omissions of Medical Center's employees, officers, agents, and physicians.
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to Medical Center's operations. In the event the Equipment is improperly used by Medical Center or its employees, agents, officers, and physicians, GKF may service or repair the same as needed and such expense shall be paid by Medical Center, unless the repair is covered by the Service Agreement described in Paragraph 15 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of Medical Center's failure or neglect to do so shall not deprive GKF of any of its rights, remedies or actions against Medical Center for damages caused by such failure or neglect.
14. Equipment Modifications/Additions/Upgrades . The parties agree that the necessity and financial responsibility for modifications/additions/upgrades to the Equipment, including the reloading of the Cobalt-60 source, shall be discussed and mutually decided by GKF and Medical Center.
15. Service Agreement . GKF warrants that it shall simultaneously with the execution of this Agreement enter into a Service Agreement with Elekta.
16. Termination . If after the initial forty-eight (48) month period of service and during each subsequent twelve (12) month period of service, Medical Center does not provide GKF with a reasonable economic justification to continue providing Gamma Knife services hereunder, then and in that event, on the date which is forty-eight (48) months after the Commencement Date and on each anniversary date thereafter during the term of this Agreement, GKF shall have the option of terminating this Agreement upon the giving of not less than nine (9) months prior written notice to Medical Center. Should GKF elect to terminate this Agreement, GKF shall bear the costs to remove the Equipment from the Medical Center, including the Cobalt-60 sources.
If after the initial sixty (60) month period of service and during each subsequent twelve (12) month period of service, the Gamma Knife program does not provide Medical Center with a reasonable economic justification to continue providing Gamma Knife services, hereunder, then and in that event, on the date which is sixty (60) months after the Commencement Date and on each anniversary date thereafter during the term of this Agreement, Medical Center shall have the option of terminating this Agreement upon the giving of not less than nine (9) months' prior written notice to GKF. Should Medical Center elect to terminate this Agreement as described in this Section 16, Medical Center shall directly pay vendor(s) and other third parties selected by GKF for all costs up to but not to exceed $500,000 to remove the Equipment from the Medical Center, including the unloading of the Cobalt-60 sources, the costs to transport the Equipment to the new site selected by GKF and the costs to reload the Cobalt-60 sources onto the Equipment at the new site.
Reasonable economic justification shall not be deemed to exist if, during any preceding twelve (12) month period, either party's revenues generated from the Equipment are lower than the corresponding direct operating expenses related to the Equipment, exclusive of physician professional fees. Each party agrees that direct and/or indirect administrative overhead expenses will not be deemed operating expenses for purposes of determining the existence of reasonable economic justification. Both parties agree they will utilize their best efforts to maximize revenues from the Gamma Knife program.
All of the terms and provisions of this Section 16 (including, without limitation, the restrictive covenants set forth below) shall survive the termination of this Agreement.
(a) Restrictive Covenant Applicable to GKF . During the term of this Agreement and for a period of two (2) years following the date of any termination by GKF pursuant to this Section 16 (the “GKF Covenant Period”), GKF covenants that it shall not either directly as, or indirectly by or through an entity in which it may be a sole proprietor, partner, member, shareholder, director, officer, employee, manager, independent contractor, joint venturer or in any other manner, lease any Equipment to any party other than Medical Center within Clark County, Nevada; provided that in the event such termination becomes effective on or after the date which is eight (8) years after the Commencement Date, the GKF Covenant Period shall be for the number of months remaining from the date of such termination to the date which is ten (10) years after the Commencement Date; provided further , that in no event shall the GKF Covenant Period exceed two (2) years in the aggregate.
(b) Restrictive Covenant Applicable to Medical Center . During the term of this Agreement and for a period of two (2) years following the date of any termination by Medical Center pursuant to this Section 16 (the “Medical Center Covenant Period”), Medical Center covenants that it shall not either directly as, or indirectly by or through an entity in which it may be a sole proprietor, partner, member, shareholder, director, officer, employee, manager, independent contractor, joint venturer or in any other manner own, purchase, lease, operate or otherwise acquire any Stereotactic Radiosurgery unit or other similar equipment performing similar functions as that of the Equipment for use or operation within Clark County, Nevada; provided that in the event such termination becomes effective on or after the date which is eight (8) years after the Commencement Date, the Medical Center Covenant Period shall be for the number of months remaining from the date of such termination to the date which is ten (10) years after the Commencement Date; provided further , that in no event shall the Medical Center Covenant Period exceed two (2) years in the aggregate.
(c) Coverage of Covenants . If the duration or territorial limitations contained in this Section 16 is deemed overly broad or unenforceable by a court of competent jurisdiction, the covenants shall nevertheless remain in full force and effect subject to such reduced duration or territorial limitation as such court shall deem reasonable under the circumstances.
(d) Injunctive Relief . GKF and Sunrise acknowledge that the covenants and restrictions set forth in this Section 16, (i) are necessary, fundamental and required for the protection of GKF and Medical Center, and (ii) related to matters which are of a unique value to GKF and Medical Center. A breach of any such covenants and restrictions would result in irreparable harm and damage to GKF and Medical Center which would not be adequately compensated by monetary damages. Accordingly, in addition to all other remedies that may be available at law or in equity, GKF and Medical Center shall be entitled to the immediate remedy of a temporary restraining order or preliminary injunction and such other form of temporary or permanent injunctive or equitable relief as may be issued by a court of competent jurisdiction to restrain or enjoin a breach of all or any portion of these covenants and restrictions or to specifically enforce the provisions hereof.
17. Options to Extend Agreement .
(a) Medical Center shall have the option at the end of the ten (10) year initial Term to:
(i) Renew this agreement for an additional five (5) year Term.
(ii) Terminate this Agreement. If Medical Center terminates this Agreement at the end of the initial term, GKF shall remove the Gamma Knife within an agreed upon period of time after the expiration of the ten (10) year initial Term.
(iii) Medical Center shall exercise one (1) of the two (2) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California, 94111, by registered mail, postmarked on or before the end of the ninth (9th) year of the ten (10) year initial Term of this Agreement. Any such notice shall be sufficient if it states in substance that Medical Center elects to exercise its option and states which of the two (2) options referred to above Medical Center is exercising.
18. No Warranties by GKF . Medical Center warrants that as of the Commencement Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a size, design, capacity and manufacture selected by it; and (c) satisfied itself that to the best of its knowledge the Equipment is suitable for Medical Center's stated purposes. GKF SUPPLIES THE EQUIPMENT “AS IS” AND NOT BEING THE MANUFACTURER OF THE EQUIPMENT OR THE MANUFACTURER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO THE EQUIPMENTS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks as between GKF and Medical Center, shall be borne by Medical Center. Medical Center agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. Any and all warranties made by Elekta will be in its good faith best efforts enforced by GKF on behalf of Medical Center during the ten (10) year initial Term hereof. Medical Center agrees that GKF shall not be responsible for the delivery, installation, or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage resulting from the installation, operation or use of the Equipment or otherwise. Medical Center 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.
19. Events of Default and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) Medical Center shall fail to observe or perform any of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for twenty (20) days after written notice thereof to Medical Center by GKF;
(d) Medical Center 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
(e) Within sixty (60) days after the commencement of any proceedings against Medical Center 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 Medical Center'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.
(f) Upon the occurrence of an Event of Default, GKF may at its option do any or all of the following: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. · Medical Center shall in any event remain fully liable for reasonable damages as provided by law 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. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
20. Insurance .
(a) During the ten (10) year initial Term of this Agreement (and any successive terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. During the ten (10) year initial Term of this Agreement, Medical Center shall, at its own cost and expense keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by Medical Center. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $5,000,000 in aggregate per year. Medical Center and GKF, their successors and assigns, shall be named as additional insureds and/or loss payees on the insurance policies maintained hereunder by the other party. Evidence of such insurance coverages shall be furnished by both parties to the other party upon written request, by no later than the Commencement Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Medical Center shall give to GKF immediate notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, GKF at its sole cost and expense shall promptly replace the Equipment. 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 promptly repaired. ·
21. Notices . Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Craig K. Tagawa, C.E.O. | . | |
Four Embarcadero Center, Suite 3620
San Francisco, CA 94111 |
|||
To Medical Center: |
Jerald F. Mitchell, President/CEO |
||
3186 South Maryland Parkway
Las Vegas, NV 89109 |
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
22. Integration/Supersedure . This Agreement contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in writing executed subsequent to the date of this Agreement.
23. Waivers . To the extent that GKF fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice GKF's rights to pursue any of those remedies at any future time and shall not constitute a waiver of GKF's rights.
24. Assignments . This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this Agreement without the express written consent of the other (which consent shall not be unreasonably withheld).
25. Amendments . This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
26. Record-Keeping Requirements . To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Medical Center by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by Medical Center, it being understood that, inasmuch as Medical Center is entering into this Agreement in reliance on GKF's reputation and expertise, that Medical Center shall be the sole judge of the reputation and expertise of the proposed delegee, and only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Medical Center by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
27. Miscellaneous Provisions .
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) 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.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
Medical Center | GK Financing, LLC | |
By: /s/ Jerald F. Mitchell | By: /s/ Craig K. Tagawa | |
Jerald F. Mitchell | Craig K. Tagawa | |
President/Chief Executive Officer | Chief Executive Officer |
Exhibit B
GKF
Columbia Sunrise Hospital and Medical Center Per Procedure Schedule
TERM | ||||
PAYMENT | PER PROCEDURE | |||
Years 1 through 5 | $ | 9,000 | ||
Years 6 through 10 | $ | 8,500 |
Exhibit 10.9a
ADDENDUM
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “A ddendum ”) is effective December 1, 1998 between Sunrise Hospital and Medical Center, LLC, d / b / a as Sunrise Hospital and Medical Center, a Nevada corporation ("Medical Center"), and GK Financing, LLC, a California limited liability company (“GKF”).
RECITALS
WHEREAS, on June 3, 1999, GKF and Medical Center executed a Lease A g reement for a Gamma Knife Unit (the “ Original Lease”);
WHEREAS, the parties desire to amend the terms and provisions of the Original Lease as set forth herein .
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other goo d and valuable consideration, the receipt and sufficiency of which are hereb y acknowledged, the parties agree as follows:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms u se d herein shall have the same meanin g set forth in the Original Lease.
2. Costs of Site Preparation; Costs of Installation . Section 4 of the original lease is hereb y amended as follows:
In the event that Sunrise's Gamma Knife program does not perform at least 85 procedures in its first year of operation, GKF shall reimburse Sunrise for $100,000 of its Gamma Knife installation costs.
In the event that Sunrise's Gamma Knife program doe s not perform at least 85 procedures in its second year of operation, GKF shall reimburse Sunrise for $100,000 of its Gamma Knife installation costs.
3. Full Force and Effect . Except as otherwise amended hereb y or provided herein, all of the terms and provisions of the Ori gina l Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the date first written above.
“MEDICAL CENTER” | Sunrise Hospital and Medical Center |
BY: | / s / Jerald F . Mitchell |
Jerald F. Mitchell, President and Chief Executive Officer | |
“GKF” | GK Financing, LLC |
BY: | / s / Craig K. Tagawa |
Craig K. Tagawa, Chief Executive Officer |
Exhibit 10.9b
ADDENDUM TWO
LEASE AGREEMENT FOR A GAMMA KNIFE
This ADDENDUM TWO TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Addendum”) is dated effective as of January 13, 2007, and is entered into between GK Financing, LLC, a California limited liability company (“GKF”), and SUNRISE HOSPITAL MEDICAL CENTER, LLC d/b/a as Sunrise Hospital Medical Center, [a Nevada corporation] (“Medical Center”), with reference to the following recitals:
Recitals :
A. On January 8, 2001, GKF and Medical Center executed a Lease Agreeme11t for a Gamma Knife Unit which Lease Agreement was amended by a certain Addendum dated June 3, 1999 (such Lease Agreement. as amended by such Addendum, is referred to herein as the "Lease");
B. Section 8 of the Lease obligates Medical Center to provide properly trained professional; technical and support personnel (including without limitation, physicists) for the proper performance of Gamma Knife procedures utilizing the Equipment.
C. Medical Center has requested GKF to provide the services of a medical radiation physicist, and GKF is willing to provide such personnel on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement :
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Provision of a Medical Radiation Physicist .
a. For so long as GKF is under contract with a medical radiation physicist (a ("Physicist") to provide the services set forth in Exhibit A (Specification) attached hereto (the ''Services"), and said physicists is available to provide the services. GKF' shall make available such Physicist to Medical Center to provide the Services. The Services shall be performed at the Site. Medical Center and the physicians performing the Gamma Knife radiosurgery procedure shall have sole responsibility to supervise and direct the Physicist.
b. Physicist shall only perform Services as, when and if requested by Medical Center, which request shall be made telephonically or in writing not less than ten (10) days in advance of the date the Services are requested, unless less days of advance notice is mutually agreed to by both parties.
c. Medical Center shall have sole responsibility to credential Physicist to provide the Services at the Facility, and to verify that Physicist is in compliance with all state and regulatory requirements in connection therewith.
d. Medical Center agrees to reimburse GKF at the per case rates shown Exhibit B (Rates) attached hereto, which rates shall be subject to increase by the amount of any increase to GKF's costs, GKF shall submit a detailed invoice to Medical Center on a monthly basis for Services rendered, and such invoices shall be payable within ten (10) days following receipt.
e. As GKF is making the Physicist available to Medical Center as provided herein only as an accommodation to Medical Center. Medical Center shall release, defend" indemnify, protect and hold harmless GKF, its officers, directors, managers, members, affiliates, employees and agents, and each of them, from any and all liability, obligation, damage, loss, cost, clai1n or demand whatsoever of any kind or nature, including reasonable attorney's fees, and costs arising directly or indirectly from action taken or omissions made by Physicist in the provision of Services. This Section shall survive the termination of this agreement.
f. Nothing set forth herein shall (i) relieve or release Medical Center of its obligation under the Lease to provide properly trained professional, technical and support personnel (including, without limitation, physicists) for the proper performance of Gamma Knife procedures utilizing the Equipment; and/or (ii) obligate GKF to furnish a Physicist to Medical Center except on the terms set forth herein.
3. Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum.
4. Full Force and Effect . Except as amended by this Addendum, all of the terms and provisions of the Lease, including without limitation, the amount of the Lease Payments; shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the date first written above.
“MEDICAL CENTER” Sunrise Hospital and Medical Center
BY: | /s/ Jerald F. Mitchell |
Jerald F. Mitchell, President and | |
Chief Executive Officer |
“GKF” GK Financing, LLC
BY: | /s/ Craig K. Tagawa |
Craig K. Tagawa, Chief Executive Officer |
Exhibit A
SERVICES
Gamma Knife radiosurgery:
• | Perform stereotactic treatment planning for Gamma Knife radiosurgeries. |
• | Operate GK unit during treatment. Assure that all treatment parameters are set correctly and documented. |
• | Calibrate and perform quality assurance on Gamma Knife unit as required by state law and JCAHO (daily, monthly, and annual schedule). |
• | Work with client to select optimum imaging parameters (MRl, CT and/or angiography) appropriate to each case. |
• | Interface with physicians (radiation oncologists and neurosurgeons) to provide necessary physics information for their treatment decisions. |
Exhibit B
RATES
The following fees shall apply:
• | Gamma Knife stereotactic radiosurgery case rate: One Thousand One Hundred Dollars ($1,100.00) per case (multiple fraction cases will be counted as a single case) |
• | Monthly Gamma Knife calibration is included in the per case rate so long as at least one |
(1) case is performed in any month.
• | Annual Gamma Knife calibration and submission of quality controls (one-time annual foe): One Thousand Dollars ($1,000.00) |
The foregoing fees include all expenses and fees associated with procedures, travel and accommodations during scheduled visits.
Exhibit 10.9c
ADDENDUM THREE
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM THREE TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Addendum”) is dated effective as of June 20, 2007, and is entered into between (i) GK FINANCING, LLC, a California limited liability company (“GKF”), and (ii) SUNRISE HOSPITAL AND MEDICAL CENTER, LLC, a Delaware limited liability company that is qualified to do business in the State of Nevada, d/b/a/ Sunrise Hospital and Medical Center (“Medical Center”), with reference to the following recitals:
Recitals :
A. Medical Center owns and operates an acute care hospital facility located at 3186 South Maryland Parkway, Las Vegas, NV 89109.
B. On June 3, 1999, GKF and Medical Center executed a Lease Agreement for a Gamma Knife Unit, which Lease Agreement was amended by a certain Addendum dated effective December 1, 1998, and a certain Addendum Two (“Addendum Two”) dated effective January 17, 2007 (as amended, the “Lease”).
C. The parties desire to further amend the terms and provisions of the Lease as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement :
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Cobalt Reload of the Equipment .
a. Cobalt Reload . Pursuant to Section 14 of the Lease, and subject to the terms and conditions set forth below, (i) GKF, at GKF’s cost and expense, shall reload the Equipment with new cobalt-60 (the “Reload”), which Reload shall be performed at the Site and shall include any required installation and rigging; and (ii) GKF shall use its commercially reasonable efforts to perform the Reload prior to December 31, 2007. It is anticipated that the Equipment will be unavailable to perform procedures for approximately three to four weeks due to the Reload process.
b. Medical Center Support . In connection with the Reload, Medical Center, at Medical Center’s cost and expense, shall provide GKF with Medical Center personnel (including Medical Center physicists) and services upon request and as required by GKF, among other things, to oversee, supervise and assist with construction and compliance with local, state and federal regulatory requirements and with nuclear regulatory compliance issues.
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c. Permits . Notwithstanding the foregoing, the Reload shall be performed by GKF only after all necessary and appropriate licenses, permits, approvals, consents and authorizations, including, without limitation, the proper handling of the cobalt-60 (collectively, the “Permits”), have been obtained by Medical Center at Medical Center’s sole cost and expense. The timing and procedure for the Reload shall be as mutually agreed upon between the parties. Notwithstanding anything to the contrary contained in the Lease and/or this Addendum, GKF makes no representation or warranty to Medical Center concerning the Reload, and GKF shall have no obligation or liability to pay any damages to Medical Center resulting therefrom, including, without limitation, any lost revenues or profits during the period of time that the Equipment is unavailable to perform procedures due to the Reload process
3. Per Procedure Payment .
Notwithstanding anything to the contrary contained in the Lease, for each of the “Increased Rent Procedures” (as defined below), the per procedure payment set forth in Section 6 of the Lease shall be increased to Ten Thousand Two Hundred Dollars ($10,200) from Eight Thousand Five Hundred Dollars ($8,500) per procedure. Immediately following the completion of the last Increased Rent Procedure, the per procedure payment shall return to Eight Thousand Five Hundred Dollars ($8,500) per procedure. As used herein, (i) the term, “Increased Rent Procedures” shall mean the first three hundred (300) procedures performed from and after the completion of the Reload; and (ii) the term “procedure” shall mean each individual treatment session (fraction) 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, whether performed on an inpatient or outpatient basis, using the Equipment and/or any other equipment or devices that are used in lieu of, or as an alternative to, the Equipment. It is acknowledged by the parties that the Increased Rent Procedures are intended to allow GKF to recover its costs to perform the Reload. Nothing set forth herein shall affect the per case reimbursement rates for medical radiation physicist services payable to GKF pursuant to Addendum Two.
4. No Responsibility for Additional Reloading . It is understood by the parties that GKF is not responsible for any additional cobalt reloading, except as expressly agreed upon in writing by Medical Center and GKF. However, if Medical Center and GKF mutually agree in writing to another cobalt reloading of the Equipment, then, the costs for such reloading shall be shared equally between Medical Center and GKF.
5. Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum.
6. Full Force and Effect . Except as amended by this Addendum, all of the terms and provisions of the Lease shall remain in full force and effect.
7. Assignment. Pursuant to Section 24 of the Lease, GKF shall be permitted at any time to assign any and all of its rights and obligations under the Lease to its wholly-owned subsidiary, provided that such all of such assigned obligations shall be guaranteed by GKF.
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IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the date first written above.
GK FINANCING, LLC | SUNRISE HOSPITAL AND MEDICAL CENTER, LLC | |||
By: | /s/ Ernest A. Bates, M.D. | By: | /s/ Steve Otto | |
Ernest A. Bates, M.D. | Name: | Steve Otto | ||
Policy Committee Member | Title: | COO |
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Exhibit 10.9d
ADDENDUM FOUR
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This ADDENDUM FOUR TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Addendum Four”) is dated effective as of February 8, 2010, and is entered into between (i) GK FINANCING, LLC, a California limited liability company (“GKF”), and (ii) SUNRISE HOSPITAL AND MEDICAL CENTER, LLC, a Delaware limited liability company that is qualified to do business in the State of Nevada, d/b/a/ Sunrise Hospital and Medical Center (“Medical Center”), with reference to the following recitals:
Recitals :
A. Medical Center owns and operates an acute care hospital facility located at 3186 South Maryland Parkway, Las Vegas, NV 89109.
B. On June 3, 1999, GKF and Medical Center executed a Lease Agreement for a Gamma Knife Unit, which Lease Agreement was amended by (i) a certain Addendum dated effective December 1, 1998, (ii) a certain Addendum Two (“Addendum Two”) dated effective January 17, 2007, and (iii) a certain Addendum Three (“Addendum Three”) dated effective June 20, 2007 (collectively, and as amended, the “Lease”).
C. The parties desire to further amend the terms and provisions of the Lease as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement :
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Extension of Lease Term . It is acknowledged that the Commencement Date of the Lease was January 8, 2001. The Term of the Lease as set forth in Section 5 of the Lease is hereby extended for an additional two (2) years, which extended Term shall expire on January 8, 2013. All references in the Lease to the “Term” shall be deemed to refer to the Term, as extended hereby.
3. Per Procedure Payments . In consideration of the extension of the Lease Term and notwithstanding anything to the contrary set forth in the Lease, commencing from and after January 8, 2011, Medical Center shall pay to GKF a per procedure payment in the amount of Six Thousand Dollars ($6,000) per procedure. The term “procedure” shall mean each individual treatment session (fraction) 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, whether performed on an inpatient or outpatient basis, using the Equipment and/or any other equipment or devices that are used in lieu of, or as an alternative to, the Equipment. The parties acknowledge that the per procedure payments represent fair market value for the use of the Equipment as described in the Agreement. Nothing set forth herein shall amend or otherwise affect (i) the per procedure payments set forth in Addendum Three which shall remain in effect until January 8, 2011, and (ii) the per case reimbursement rates for medical radiation physicist services payable to GKF pursuant to Addendum Two.
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4. Transfer of Equipment Ownership . If, on the expiration of the Term (as extended), no Event of Default by Medical Center (and no event or condition which with the giving of notice and/or the lapse of time would constitute such an Event of Default) then exists and is continuing under the Lease, then, GKF shall quitclaim to Medical Center all of GKF’s right, title and interest in and to the Equipment on an “as is, where is” basis.
5. No Responsibility for Additional Reloading . It is understood by the parties that GKF is not responsible for any cobalt reloading, except as expressly agreed upon in writing by Medical Center and GKF.
6. Captions . The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum.
7. Full Force and Effect . Except as amended by this Addendum Four, all of the terms and provisions of the Lease and its Addendums shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum Four effective as of the date first written above.
GK FINANCING, LLC | SUNRISE HOSPITAL AND MEDICAL CENTER, LLC | |||
By: | /s/ Ernest A. Bates | By: | /s/ Chris Mowan | |
Ernest A. Bates, M.D. | Name: | Chris Mowan | ||
Policy Committee Member | Title: | COO |
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Exhibit 10.10
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT on November 1, 1999, (hereinafter, referred to as the "Agreement") is entered into between GK Financing, LLC, a California Limited Liability Company, (hereinafter referred to as "GKF"), and Jackson HMA, Inc. d/b/a Central Mississippi Medical Center, a for profit Mississippi corporation, (hereinafter referred to as "Medical Center").
RECITALS
WHEREAS, Medical Center wants to lease a Leksell Stereotactic Gamma Unit 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 Medical Center, pursuant to the terms and conditions of this Agreement.
NOW, therefore, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Medical Center and Elekta. Medical Center agrees that simultaneously with the execution of this Agreement it shall execute that certain LGK Agreement with Elekta, (hereinafter referred to as the "LGK Agreement"), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Medical Center agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement. Medical Center shall fully indemnify and hold harmless GKF in the event that GKF suffers any loss, damage, claim or expense (including attorneys' fees) solely as a result of Medical Center's breach or alleged breach of the LGK Agreement.
2. Certificate of Need (CON). If Medical Center requires a CON to install and operate the Equipment, Medical Center will work diligently toward receipt of a CON for the Equipment and the provision of services related thereto. This Agreement shall become null and void in the event Medical Center does not receive a CON, if required, for the Equipment and the provision of services related thereto after using its best efforts to do so.
3. Delivery of the Equipment and Site preparation. GKF shall arrange to have the Equipment delivered to Medical Center, at 1850 Chadwick Drive, Jackson, Mississippi (the "Site") in coordination with Elekta. GKF shall exert its best faith efforts to expedite the delivery of the Equipment in accordance with the terms and conditions of the Purchase Agreement for the Equipment by and between GKF and Elekta. Notwithstanding the preceding sentence, it is understood and agreed that GKF has made no representations and warranties to Medical Center concerning actual delivery dates or schedules for the Equipment at the Site.
Medical Center shall provide a safe, convenient and properly prepared Site, at its own expense, in accordance with all of the Equipment manufacturer's (Elekta's) guidelines, specifications, technical instruments and Site Planning Criteria (which Site Planning Criteria are attached hereto as Exhibit B and incorporated herein by this reference), which criteria shall include Elekta's estimated delivery schedule when and as received by GKF, on Medical Center controlled property (The "Site") for the proper performance of Gamma Knife procedures. Site location shall be mutually acceptable to both parties. Medical Center shall prepare at its sole cost and expense the requisite site plans and specifications and shall submit them to Elekta and GKF for approval. Medical Center shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance tests, and the use of the Equipment all as more fully set forth in Article 2.1 of the LGK Agreement.
4. Commencement of Term. The Term (hereinafter defined) of this Agreement shall commence upon the performance of the first clinical Gamma Knife procedure at the Site (the "Commencement Date"). Medical Center shall become liable to GKF for the payments referred to in Paragraph 7 herein below upon the Commencement Date.
5. Costs of Site Preparation; Costs of Installation. Medical Center's obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in accordance with such plans and specifications, being in full compliance with Elekta's Site Planning Criteria. Medical Center shall at its own expense and risk, prepare, construct and make ready the Site as necessary, for the installation of the Equipment, including, but not limited to, providing any temporary and/or permanent shielding for the charging of the equipment and its use, selecting and preparing a proper foundation for the Equipment and for such shielding and walls, as well as proper alignment of the Site and wiring. Medical Center shall be financially responsible for the positioning of the Equipment on its foundation at the Site.
Medical Center shall also at its own expense select, purchase and install all radiation monitoring equipment and devices, safety circuits and radiation warning signs needed for the Equipment at the Site, according to all applicable federal, state and local laws, regulations, recommendations or custom.
Upon completion of the Site, Medical Center shall warrant that the Site will be safe and suitable for its use of the Equipment. Medical Center shall fully indemnify and hold harmless GKF from any and all loss, liability, damage, expense or claim (including attorneys' fees) which GKF may suffer and incur and which relate to the Site and the Equipment's positioning thereon.
Medical Center shall be liable to GKF for any damage to the Equipment caused by (a) defects in construction of the Site or defects in the positioning of the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by Medical Center with respect to the Site; or (c) negligent or intentional acts of omission or commission by Medical Center or any of its officers, agents, physicians, and employees in connection with the Site preparation or operation of the Equipment at the Site.
Medical Center warrants that it shall utilize its best efforts to fulfill on an expeditious basis its obligations under this Paragraph 5. Medical Center further warrants that it shall on a regular basis keep GKF informed of Medical Center's progress in fulfilling its obligations pursuant to this Paragraph 5. Should Medical Center not have all site preparations completed by the delivery date specified by a separate agreement plus a sixty (60) day grace period such that the site is acceptable for positioning and installation of the equipment, Medical Center shall reimburse GKF at an interest rate of Bank of America's prime rate plus 2% on GKF's equipment cost until the site is prepared to allow positioning and installation of the equipment.
6. Term of the Equipment. GKF agrees to provide to Medical Center the Equipment pursuant to the terms of this Agreement, for a term of ten (10) years from the Commencement Date as described in Paragraph 4 hereinabove (the "Term"), unless terminated earlier as provided herein.
7. Per Procedure Payments. Medical Center shall pay to GKF a per procedure payment of $8,500 for the use of the Equipment. A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session. Medical Center shall be billed monthly for the actual number of procedures performed during the first and second half of the month, respectively. Medical Center shall pay the procedures invoiced within thirty (30) days after being invoiced. Interest shall begin to accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days.
8. Use of the Equipment. The Equipment may be used by Medical Center only at the location stated above and shall not be removed therefrom. Medical Center shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF. No permitted assignment or sublease shall relieve Medical Center of any of its obligations hereunder. Medical Center shall not use nor permit the Equipment to be used in any manner nor for any purpose for which, in the opinion of Elekta or GKF, the Equipment is not designed or reasonably suitable. Medical Center shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. Medical Center shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Medical Center shall, at GKF's request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
9. Additional Covenants of Medical Center. In addition to the other covenants made by Medical Center, Medical Center shall at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment.
(b) Assume all medical and financial responsibility for the overseers' monitoring of all patients' medical condition and treatment.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Indemnify GKF as herein provided: (i) Medical Center hereby agrees to fully indemnify and/or reimburse (including attorneys' fees) GKF on a prompt basis for any and all damage to the Equipment (including any violations by Medical Center, its agents, officers, physicians, employees, successors and assigns of the Service Agreement described in Paragraph 16 hereof) to the extent such damages are caused by the negligent or wrongful acts or omissions of Medical Center, its agents, officers, physicians and employees. In the event the Equipment is destroyed or rendered unusable, this indemnification 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. (ii) Medical Center hereby further agrees to indemnify and hold GKF, its agents, officers, employees, successors and assigns, harmless from and against any and all claims, liabilities, obligations, losses, damages, injuries, penalties, actions, costs and expenses (including attorneys' fees) for all events and/or occurrences described in Article 7.3 of the LGK Agreement to the same extent that Medical Center agrees to indemnify Elekta thereunder. Medical Center further agrees to fully indemnify and hold harmless GKF for any loss, damage, claim, or expense (including attorneys' fees) GKF may suffer or incur as a result of Medical Center's breach or breach alleged in litigation with regard to the LGK Agreement.
(e) Provide reasonable and customary marketing materials (i.e. brochures, announcements, etc.) and marketing support from an administrative and physician (i.e. seminars by neurosurgeons and radiation therapists to referring physicians, etc.) commitment standpoint for this clinical service.
10. Additional Covenants, Representations and Warranties of GKF. In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to Medical Center that, upon delivery of the Equipment to Medical Center, GKF shall use its best faith efforts to require that Elekta meets its contractual obligations to GKF and in putting the Equipment, as soon as 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.
(c) GKF represents and warrants that throughout the term of this Agreement, Medical Center shall 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 or under Elekta's Purchase Agreement with GKF.
(d) During the entire term of this agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 16 hereof; and (ii) any other service or other agreements required to fulfill GKF's obligations to Medical Center pursuant to this Paragraph 10(d). GKF represents and warrants that during the entire term of this agreement and any subsequent extensions thereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and/or Elekta's warranties to GKF. In no event, however, shall the warranty obligations of GKF to Medical Center with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment.
11. Ownership/Title. It is expressly understood that Medical Center shall acquire no right, title or interest in or to the Equipment, other than the right to the possession and use of the same in accordance with the terms of this Agreement.
GKF may at its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a capitalized lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease title shall vest with the lessor until GKF exercises its buy-out option. In addition, should GKF finance the Equipment, said agreement may be used as collateral against the loan.
12. Cost of Use of the Equipment. Except as is otherwise provided herein, Medical Center shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. Medical Center shall be fully responsible and liable for all acts and/or omissions of such professional, technical and support personnel.
13. Taxes. GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of Medical Center.
14. Maintenance and Inspections. GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a good state of repair, reasonable wear and tear excepted. Medical Center shall be liable to GKF for all damage to the Equipment caused by the misuse, negligence, improper use or other intentional or negligent acts or omissions of Medical Center's employees, officers, agents, and physicians.
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to Medical Center's operations. In the event the Equipment is improperly used by Medical Center or its employees, agents, officers, and physicians, GKF may service or repair the same as needed and such expense shall be paid by Medical Center, unless the repair is covered by the Service Agreement described in Paragraph 15 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of Medical Center's failure or neglect to do so shall not deprive GKF of any of its rights, remedies or actions against Medical Center for damages caused by such failure or neglect.
15. Equipment Modifications/Additions/Upgrades. The parties agree that the necessity and financial responsibility for modifications/additions/upgrades to the Equipment, including the reloading of the Cobalt-60 source, shall be discussed and mutually decided by GKF and Medical Center.
16. Service Agreement. GKF warrants that it shall simultaneously with the execution of this Agreement enter into a Service Agreement with Elekta.
16. Termination If, after the initial twenty-four (24) month period of service, and subsequent 12 month periods of service, Medical Center does not provide GKF with a reasonable economic justification to continue providing Gamma Knife services hereunder, then and in that event, GKF shall have the option of terminating this Agreement upon the giving of written notice to Medical Center of said termination not less than ninety (90) days prior to GKF's designated termination date.
17. Options to Extend Agreement.
(a) Medical Center shall have the option at the end of the ten (10) year initial Term to:
(i) Extend this Agreement for a five (5) year renewal term.
(ii) Terminate this Agreement. If Medical Center terminates this Agreement at the end of the initial term, GKF at its cost shall remove the Gamma Knife within an agreed upon period of time after the expiration of the ten (10) year initial Term.
Medical Center shall exercise one (1) of the two (2) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California, 94111, by registered mail, postmarked on or before the end of the ninth (9th) year of the ten (10) year initial Term of this Agreement. Any such notice shall be sufficient if it states in substance that Medical Center elects to exercise its option and states which of the two (2) options referred to above Medical Center is exercising.
18. No Warranties by GKF. Medical Center warrants that as of the Commencement Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a size, design, capacity and manufacture selected by it; and (c) satisfied itself that to the best of its knowledge the Equipment is suitable for Medical Center's stated purposes. GKF SUPPLIES THE EQUIPMENT "AS IS" AND 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, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks as between GKF and Medical Center, shall be borne by Medical Center. Medical Center agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. Any and all warranties made by Elekta will be in its good faith best efforts enforced by GKF on behalf of Medical Center during the ten (10) year initial Term hereof. Medical Center agrees that GKF shall not be responsible for the delivery, installation, or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage resulting from the installation, operation or use of the Equipment or otherwise. Medical Center 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.
19. Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) Medical Center shall fail to observe or perform any of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for twenty (20) days after written notice thereof to Medical Center by GKF;
(d) Medical Center 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.
(e) Within sixty (60) days after the commencement of any proceedings against Medical Center 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 Medical Center'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.
Upon the occurrence of an Event of Default, GKF may at its option do any or all of the following: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law 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. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
20. Events of Default by GKF and Remedies.
20.1 The occurrence of any one of the following shall constitute an Event of Default hereunder:
20.1.1 GKF shall fail to observe or perform any of its covenants, duties or obligations arising under this Agreement and such failure shall continue for a period of thirty (30) days after written notice thereof is given by Medical Center 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.
20.1.2 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.
20.1.3 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.
20.2 Upon the occurrence of an Event of Default involving GKF, Medical Center may at its option do any or all of the following:
20.2.1 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 or, in the absence of removal by GKF within a reasonable period of time after a written request therefor, Medical Center may remove the Equipment with all due care and store the Equipment at GKF's sole cost and expense.
20.2.2 Seek to recover from GKF such loss as may be realized by Medical Center in the ordinary course of events as a result of the Event of Default.
20.3 GKF shall in any event remain fully liable for reasonable damages as provided by law and for all costs and expenses incurred by Medical Center on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. However, notwithstanding anything to the contrary set forth in this Agreement, GKF shall not in any manner be or become liable to Medical Center for any consequential or incidental damages that may be suffered by Medical Center which arise out of or result from the Event of Default or any breach by GKF of this Agreement. The rights and remedies afforded Medical Center 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.
20.4 Notwithstanding the occurrence of an Event of Default with respect to GKF (including any claim which would otherwise be in the nature of a set-off), Medical Center shall fully perform and pay its obligations hereunder (including payment of all rent). Upon termination of this Agreement or the exercise of any other rights or remedies under this Agreement or applicable law following an Event of Default, Medical Center shall, without further request or demand, pay to GKF all rent payments and other sums owing under this Agreement when and as due.
21. Indemnification.
21.1 Medical Center's Indemnity Agreement. Subject to provisions of this Agreement, Medical Center, for itself and its successors and assigns, hereby indemnifies and holds GKF harmless from and against any loss, cost or expense (including reasonable attorneys' fees) arising out of or relating in any manner to the failure of Hospital to properly perform any of its obligations to be performed under the terms of this Agreement.
21.2 GKF's Indemnity Agreement. Subject to provisions of this agreement, GKF, for itself and its successors and assigns, hereby indemnifies and holds Hospital harmless from and against any loss, cost or expense (including reasonable attorneys' fees) arising out of or relating in any manner to the failure of GKF to properly perform any of its obligations to be performed under the terms of this Agreement.
22. Insurance.
(a) During the ten (10) year initial Term of this Agreement (and any successive terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. During the ten (10) year initial Term of this Agreement, Medical Center shall, at its own cost and expense keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by Medical Center. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $5,000,000 in aggregate per year. University and GKF, their successors and assigns, shall be named as additional insureds and/or loss payees on the insurance policies maintained hereunder by the other party. Evidence of such insurance coverages shall be furnished by both parties to the other party upon written request, by no later than the Commencement Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Medical Center shall give to GKF immediate notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, GKF at its sole cost and expense shall promptly replace the Equipment. 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 promptly repaired.
23. Notices. Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Chief Executive Officer |
GKF Financing, LLC | |
Four Embarcadero Center, Suite 3620 | |
San Francisco, CA 94111 | |
To Medical Center: | Chief Executive Officer |
Central Mississippi Medical Center | |
1850 Chadwick Drive | |
Jackson, Mississippi 39204-3479 |
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
24. Integration/Supersedure. This Agreement contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
25. Waivers. To the extent that GKF fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice GKF's rights to pursue any of those remedies at any future time and shall not constitute a waiver of GKF's rights.
26. Assignments. This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this Agreement without the express written consent of the other (which consent shall not be unreasonably withheld).
27. Amendments. This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
28. Record-Keeping Requirements. To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Medical Center by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by Medical Center, it being understood that, inasmuch as Medical Center is entering into this Agreement in reliance on GKF's reputation and expertise, that Medical Center shall be the sole judge of the reputation and expertise of the proposed delegee, and only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Medical Center by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
29. Miscellaneous Provisions.
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) 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.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
Medical Center | GK Financing, LLC |
By: /s/ Joseph Mullany | By: /s/ Craig K. Tagawa |
Joseph Mullany | Craig K. Tagawa |
Vice President, Mississippi Division | Chief Executive Officer |
By: /s/ Timothy R. Parry | |
Timothy R. Parry | |
Vice President & General Counsel | |
By: /s/ Earl P. Holland | |
Earl P. Holland | |
Vice Chairman & Chief Operating Officer |
Exhibit 10.10c
AMENDMENT THREE
TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
This AMENDMENT THREE TO LEASE AGREEMENT FOR A GAMMA KNIFE UNIT (this “Amendment”) is dated February 23, 2010, but is made effective as of April 30, 2001, and is entered into between GK FINANCING, LLC, a California limited liability company (“GKF”), and JACKSON HMA, LLC d/b/a Central Mississippi Medical Center, a for-profit Mississippi corporation (“Medical Center”), with reference to the following recitals:
Recitals :
A. GKF and Medical Center entered into a Lease Agreement for a Gamma Knife Unit dated November 1, 1999, as amended by (i) an Addendum to Lease Agreement For A Gamma Knife Unit; and (ii) an Addendum Two to Lease Agreement For A Gamma Knife Unit dated as of November, 2006 (as amended, the “Lease”).
B. At the time the Lease was entered into, the parties agreed that GKF would share equally in the costs marketing the Gamma Knife services provided by the Medical Center. However, this obligation was inadvertently omitted from the Lease, which the parties now desire to amend to correct such inadvertent omission.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement :
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meaning set forth in the Lease.
2. Marketing Support . Effective as of the Commencement Date of the Lease ( i.e. , April 30, 2001), Section 9(e) of the Lease is hereby, and shall be deemed to have been, deleted in its entirety and replaced with the following:
“(e) 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 Gamma Knife service to be operated by the Medical Center, subject to the following:
“GKF, in coordination with Medical Center, shall provide Medical Center with marketing support for the Gamma Knife service to be provided by Medical Center. Notwithstanding the preceding sentence or any provision to the contrary herein, GKF shall not engage in any direct or indirect marketing or advertising of the Gamma Knife services to be rendered by Medical Center during the term of this Agreement, without Medical Center’s approval. Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve (12) month period during the Term, GKF and Medical Center shall develop a mutually agreed upon marketing budget and plan (“Plan”) for the clinical service to be supported by the Equipment for the succeeding twelve (12) month period of the Term. Once approved, the Plan shall be implemented by Medical Center in accordance with its terms. If Medical Center has not approved or disapproved of the Plan within thirty (30) days following its receipt, Medical Center shall be deemed to have approved the same. All advertisements, brochures and other marketing materials pertaining to the Plan shall be subject to review and written approval by Medical Center and GKF prior to their use. Medical Center and GKF shall discuss the Plan on a regular basis not less than once per quarter. Medical Center’s and any Medical Center subsidiary’s or related corporation’s name, trademarks, service marks, or other identifying names, marks, images or designations shall be and remain the sole and exclusive property of Medical Center, but which may be used in any approved marketing materials without payment of any license or royalty fee. As funds are expended by Medical Center in accordance with the Plan, Medical Center shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse Medical Center for fifty percent (50%) of approved expenditures. It is acknowledged by the parties that such expenses to be reimbursed by GKF as provided above have been included in GKF’s calculation of Medical Center’s per procedure payments so as to allow GKF to recover such GKF expenses during the Term of this Agreement; provided that, in no event shall the foregoing limit or otherwise affect Medical Center’s obligation to pay the per procedure payments as set forth in this Agreement.”
The parties acknowledge that both parties have been in compliance with the foregoing requirements through the execution of this Amendment.
3. Full Force and Effect . Except as amended by this Amendment, all of the terms and provisions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first written above.
“ GKF ”: | “ Medical Center ”: | ||
GK FINANCING, LLC | JACKSON HMA, LLC d/b/a Central Mississippi Medical Center | ||
By: | /s/ Craig K. Tagawa | By: | /s/ Glen Silverman |
Craig K. Tagawa | Name | Glen Silverman | |
Chief Executive Officer | Title: | CEO |
Exhibit 10.11
LEASE AGREEMENT FOR A GAMMA KNIFE UNIT
THIS AGREEMENT FOR A GAMMA KNIFE UNIT on this 18 th day of February, 2000, (hereinafter, referred to as the “Agreement”) is entered into between GK Financing, LLC, a California Limited Liability Company, (hereinafter referred to as “GKF”), and OSF HealthCare System, an Illinois not-for-profit corporation, owner and operator of Saint Francis Medical Center (hereinafter referred to as “Medical Center”).
RECITALS
WHEREAS, Medical Center wants to lease a new Model C Leksell Stereotactic Gamma Unit Manufactured by Elekta Instruments, Inc., (hereinafter referred to as the “Equipment”); and
WHEREAS, GKF is willing to lease the Equipment which GKF has previously acquired from Elekta Instruments, Inc., a Georgia corporation (hereinafter referred to as “Elekta”), to Medical Center, pursuant to the terms and conditions of this Agreement.
NOW, therefore, in consideration of the foregoing premises and the promises contained herein, the parties hereto hereby agree as follows:
1. Execution of LGK Agreement by and between Medical Center and Elekta . Medical Center agrees that simultaneously with the execution of this Agreement it shall execute that certain LGK Agreement with Elekta, (hereinafter referred to as the “LGK Agreement”), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Medical Center agrees to fulfill all of its obligations under the LGK Agreement and acknowledges that GKF is a third party beneficiary of the LGK Agreement. Medical Center shall fully indemnify and hold harmless GKF in the event that GKF suffers any loss, damage, claim or expense (including attorneys' fees) solely as a result of Medical Center’s breach or alleged breach of the LGK Agreement.
2. Conditions Precedent .
(a) This Agreement is contingent on approval by OSF's Board of Directors.
(b) If Medical Center requires a CON to install and operate the Equipment, Medical Center will work diligently toward receipt of a CON for the Equipment and the provision of services related thereto. In addition, GKF will provide assistance and support to Medical Center in obtaining a CON. The granting of a CON by the Illinois Health Facilities Planning Board is a condition precedent of this Agreement. None of the terms and conditions set forth herein shall become effective until such CON is granted and pursuant to Section 4 herein.
3. Delivery of the Equipment and Site preparation . GKF shall arrange to have the Equipment delivered to Medical Center, at 530 N.E. Glen Oak Ave., Peoria, Illinois (the “Site”) in coordination with Elekta. GKF shall exert its best faith efforts to expedite the delivery of the Equipment. Notwithstanding the preceding sentence, it is understood and agreed that GKF has made no representations and warranties to Medical Center concerning actual delivery dates or schedules for the Equipment at the Site.
Medical Center shall provide a safe, convenient and properly prepared Site, at its own expense, in accordance with all of the Equipment manufacturer's (Elekta's) guidelines, specifications, technical instruments and Site Planning Criteria (which Site Planning Criteria are attached to the LGK Agreement as Exhibit B and incorporated therein), which criteria shall include Elekta's estimated delivery schedule when and as received by GKF, on Medical Center controlled property (The “Site”) for the proper performance of Gamma Knife procedures. Site location shall be acceptable to GKF. Medical Center shall prepare at its sole cost and expense the requisite site plans and specifications and shall submit them to Elekta and GKF for approval. Medical Center shall obtain, in a timely manner, a User License from the Nuclear Regulatory Commission and/or appropriate state agency authorizing it to take possession of the Cobalt Supply and shall obtain such other licenses, permits, approvals, consents and authorizations, which may be required by local governmental or other regulatory agencies for the Site, its preparation, the charging of the Equipment with its Cobalt Supply, the conduct of Acceptance tests, and the use of the Equipment all as more fully set forth in Article 2.1 of the LGK Agreement.
4. Commencement of Term . The Term (hereinafter defined) of this Agreement shall commence upon the successful performance of the first clinical Gamma Knife procedure at the Site (the “Commencement Date”). Medical Center shall become liable to GKF for the payments referred to in Paragraph 7 herein below upon the Commencement Date.
5. Costs of Site Preparation: Costs of Installation . Medical Center's obligations shall include preparation of plans and specifications for the construction and preparation of the Site in such form as will result in the Site, when constructed in accordance with such plans and specifications, being in full compliance with Elekta's Site Planning Criteria. Medical Center shall at its own expense and risk, prepare, construct and make ready the Site as necessary, for the installation of the Equipment, including, but not limited to, providing any temporary and/or permanent shielding for the charging of the equipment and its use, selecting and preparing a proper foundation for the Equipment and for such shielding and walls, as well as proper alignment of the Site and wiring. Medical Center shall be financially responsible for the positioning of the Equipment on its foundation at the Site.
Medical Center shall also at its own expense select, purchase and install all radiation monitoring equipment and devices, safety circuits and radiation warning signs needed for the Equipment at the Site, according to all applicable federal, state and local laws, regulations, recommendations or custom.
Upon completion of the Site, Medical Center shall warrant that the Site will be safe and suitable for its use of the Equipment. Medical Center shall fully indemnify and hold harmless GKF from any and all loss, liability, damage, expense or claim (including attorneys' fees) which GKF may suffer and incur and which relate to the Site, excluding GKF or Elekta's negligence.
Medical Center shall be liable to GKF for any damage to the Equipment caused by (a) defects in construction of the Site or defects in the positioning of the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by Medical Center with respect to the Site; or (c) negligent or intentional acts of omission or commission by Medical Center or any of its officers, agents, physicians, and employees in connection with the Site preparation or operation of the Equipment at the Site.
Medical Center warrants that it shall utilize its best efforts to fulfill on an expeditious basis its obligations under this Paragraph 5. Medical Center further warrants that it shall on a regular basis keep GKF informed of Medical Center's progress in fulfilling its obligations pursuant to this Paragraph 5. Should Medical Center not have all site preparations completed by the delivery date specified by a separate agreement plus a sixty (60) day grace period such that the site is acceptable for positioning and installation of the equipment, Medical Center shall reimburse GKF at an interest rate of Bank of America's prime rate plus 2% on GKF's equipment cost until the site is prepared to allow positioning and installation of the equipment.
6. Term of the Equipment . GKF agrees to provide to Medical Center the Equipment pursuant to the terms of this Agreement, for a term of ten (10) years from the Commencement Date as described in Paragraph 4 hereinabove ( the “Term”) , unless terminated earlier as provided herein.
7. Per Procedure Payments . Medical Center shall schedule use of the Equipment at its sole discretion and shall be obligated to no minimum number of procedures. Medical Center shall pay to GKF a per procedure payment of $8,750 (Eight thousand seven hundred fifty dollars) for procedures 1-100 performed in each year of the Agreement for the use of the Equipment and $8,000 (Eight Thousand Dollars) per procedure for procedures 101 and above during each year of the Agreement for the use of the Equipment. For purposes of per procedure calculation, procedure counts are not cumulative and the procedure count reverts to zero on the “Reset Date” which is one (1) year after the Commencement Date and each anniversary date thereafter. (A procedure shall be defined as a single patient treatment session that may include one or more isocenters during that session. Medical Center shall be billed on the fifteenth (15th) and the last day of each month for the actual number of procedures performed during the first and second half of the month, respectively. Medical Center shall pay the procedures invoiced within thirty (30) days after being invoiced. Interest shall begin to accrue at the rate of 1-1/2% per month on all invoices remaining unpaid after 45 days.
(a) If the “Reimbursement Rate” in effect on any “Reset Date” is twenty-five percent (25%) greater or less than the “Base Rate,” Medical Center shall inform GKF in writing within sixty (60) days of such increase or decrease and shall provide GKF with the information used in calculating such Reimbursement Rate. Within thirty (30) days after GKF's receipt of such notice, the parties shall meet to renegotiate in good faith the per procedure payments payable by Medical Center for patients treated under this Agreement with Medicare as their primary insurer.
(b) In determining the renegotiated per procedure payment any reduction or increase, only for those patients treated who have Medicare as their primary insurer, thereto may or may not be in proportion to the reduction or increase to the Reimbursement Rate. Furthermore, any reduction to the per procedure payment will be calculated to provide Medical Center with Operating Income estimated at a break even level as a result of such reduction; provided that no revised per procedure payment shall be imposed if it would result in negative Operating Income to GKF in accordance with subsection (c) below. Medical Center shall permit GKF to inspect Medical Center's books and records pertaining to the Equipment in order to verify such Operating Income.
(c) If the per procedure payment for patients treated who have Medicare as their primary insurer proposed by Medical Center would result in negative “Operating Income” (as defined below) to GKF, then, GKF shall have no recourse to arbitration as provided in this Section
7. In such event, this Agreement shall remain unchanged and in full force and effect. GKF shall permit Medical Center to inspect GKF's books and records pertaining to the Equipment in order to verify such Operating Income.
(d) If the per procedure payment proposed by Medical Center would not result in GKF incurring negative Operating Income, but the parties are unable to agree in good faith on a renegotiated per procedure payment, then, GKF and Medical Center shall jointly appoint an arbitrator who shall have not less than ten (10) years experience in medical equipment financing, in good standing with the American Arbitration Association or other comparable organization, and who shall have no prior relationship, attorney/client or otherwise, with any of the parties. Such arbitrator shall review the information presented by both parties and shall render a decision within thirty (30) days of his or her appointment. In rendering a decision, the arbitrator shall be bound by the guidelines set forth in this Section, including, without limitation, the parameters for renegotiated per procedure payments as set forth in subsection (a), (b), (c), above and this subsection (d). The arbitrator's decision shall be binding upon the parties and non-appealable. The fees and expenses of the arbitrator shall be shared equally between the parties. The foregoing arbitration procedure shall apply only to disagreements arising from this subsection (d) and not to any other disputes or disagreements arising from this Agreement.
(e) If the parties mutually agree on a renegotiated per procedure payment or if a renegotiated per procedure payment is determined by the arbitrator as set forth above, then such renegotiated per procedure payment shall become one (1) month after such payment rate is reached, and Section 7 hereto shall be deemed automatically amended as of such date.
(f) Definition of terms: As used herein, (i) the “Reimbursement Rate” shall mean the average technical component reimbursement received by Medical Center for the Equipment from all patients treated who have Medicare as their primary insurer in effect as of any Reset Date; (ii) the “Base Rate” shall mean the average technical component reimbursement received by Medical Center for the Equipment from all patients treated who have Medicare as their primary insurer in effect on the date which is one year after the Commencement Date; (iii) the “Reset Date” shall mean the date which is two (2) years after the date of the first procedure and each anniversary date thereafter; and (iv) “Operating Income” with respect to either party shall mean all technical component revenues generated by such party from the Equipment less such party's corresponding direct operating expenses related to the Equipment, including, without limitation, applicable interest and depreciation expenses on the Equipment and Site improvements, but excluding physician professional fees and direct or indirect administrative overhead expenses.
8. Use of the Equipment . The Equipment may be used by Medical Center only at the location stated above and shall not be removed therefrom. Medical Center shall not assign or sublease the Equipment or its rights hereunder without the prior written consent of GKF. No permitted assignment or sublease shall relieve Medical Center of any of its obligations hereunder. Medical Center shall not use nor permit the Equipment to be used in any manner nor for any purpose for which, in the opinion of Elekta or GKF, the Equipment is not designed or reasonably suitable. Medical Center shall not permit any liens, whether voluntary or involuntary, to attach to the Equipment, without the prior written consent of GKF. Medical Center shall have no interest in the Equipment other than the rights acquired as a lessee hereunder and the Equipment shall remain the property of GKF regardless of the manner in which it may be installed or attached at the Site. Medical Center shall, at GKF's request, affix to the Equipment tags, decals, or plates furnished by GKF, indicating GKF's ownership of the Equipment.
9. Additional Covenants of Medical Center . In addition to the other covenants made by Medical Center, Medical Center shall at its own cost and expense:
(a) Provide properly trained professional, technical and support personnel and supplies required for the proper performance of medical procedures utilizing the Equipment.
(b) Assume all medical and financial responsibility for the overseers' monitoring of all patients' medical condition and treatment.
(c) Fully comply with all of its obligations under the LGK Agreement.
(d) Indemnify GKF as herein provided: (i) Medical Center hereby agrees to fully indemnify and/or reimburse (including attorneys' fees) GKF on a prompt basis for any and all damage to the Equipment (including any violations by Medical Center, its agents, officers, physicians, employees, successors and assigns of the Service Agreement described in Paragraph 16 hereof) to the extent such damages are caused by the negligent or wrongful acts or omissions of Medical Center, its agents, officers, physicians and employees. In the event the Equipment is destroyed or rendered unusable, this indemnification shall extend up to (but not exceed) the market value of the Equipment at the time of its destruction less salvage value, if any. For the purposes of this Agreement “market value” shall be the value a willing lessee is willing to pay to a willing lessor for comparable Equipment; however, such value shall be no less than the higher of GKF's net book value of the Equipment or its principal balance on any loan for the Equipment. (ii) Medical Center hereby further agrees to indemnify and hold GKF, its agents, officers, employees, successors and assigns, harmless from and against any and all claims, liabilities, obligations, losses, damages, injuries, penalties, actions, costs and expenses (including attorneys' fees) for all events and/or occurrences described in Article 7.3 of the LGK Agreement to the same extent that Medical Center agrees to indemnify Elekta thereunder. Medical Center further agrees to fully indemnify and hold harmless GKF for any loss, damage, claim, or expense (including attorneys' fees) GKF may suffer or incur as a result of Medical Center's breach of the LGK Agreement.
(e) Provide reasonable and customary marketing materials developed by Medical Center (i.e. brochures, announcements, etc.) and reasonable marketing support from an administrative and physician (i.e. seminars by neurosurgeons and radiation oncologists to referring physicians, etc.) commitment standpoint for this clinical service.
10. Additional Covenants, Representations and Warranties of GKF . In addition to the other covenants, representations and warranties, made by GKF in this Agreement:
(a) GKF represents and warrants that GKF has full power and authority to enter into this Agreement, and that this Agreement does not and will not violate any agreement, contract or instrument binding upon GKF.
(b) GKF represents and warrants to Medical Center that, upon delivery of the Equipment to Medical Center, GKF shall use its best faith efforts to require that Elekta meets its contractual obligations to GKF and in putting the Equipment, as soon as 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.
(c) GKF represents and warrants that throughout the term of this Agreement, Medical Center shall 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 or under Elekta's Purchase Agreement with GKF.
(d) During the entire term of this agreement and subsequent extension thereof, GKF shall maintain in full force and effect: (i) the Service Agreement referenced in Paragraph 16 hereof; and (ii) any other service or other agreements required to fulfill GKF's obligations to Medical Center pursuant to this Paragraph 10(d). GKF represents and warrants that during the entire term of this agreement and any subsequent extensions thereof, that it will fully pursue any and all remedies it may have against Elekta under the Service Agreement to insure that the Equipment will be in conformity with Elekta's warranties so that it is free from defects in design, materials, and workmanship which result in noncompliance with the specifications and/or Elekta's warranties to GKF. In no event, however, shall the warranty obligations of GKF to Medical Center with respect to the Equipment be greater or more extensive than Elekta's warranty obligations to GKF with respect to the Equipment.
(e) GKF represents and warrants that it shall pay the tuition costs of training four (4) of Medical Center's initial core group personnel on the Equipment. Travel and entertainment costs for such personnel are borne by Medical Center.
11. Ownership/Title . It is expressly understood that Medical Center shall acquire no right, title or interest in or to the Equipment, other than the right to the possession and use of the same in accordance with the terms of this Agreement.
GKF may at its sole discretion finance the Equipment. Financing may be in the form of an installment loan or a capitalized lease or other commercially available debt instrument. Should GKF finance the Equipment through an installment loan, GKF shall be required to provide the Equipment as collateral against the loan. Should GKF finance the Equipment through a capitalized lease title shall vest with the lessor until GKF exercises its buy-out option. In addition, should GKF finance the Equipment, said Agreement may be used as collateral against the loan.
12. Cost of Use of the Equipment . Except as is otherwise provided herein, Medical Center shall bear the entire cost of using the Equipment during the Term of this Agreement. This shall include, but not be limited to, providing trained professionals, technical and support personnel and supplies to properly operate the Equipment. Medical Center shall be fully responsible and liable for all acts and/or omissions of such professional, technical and support personnel.
13. Taxes . GKF shall pay any personal property taxes levied against the Equipment and any other taxes or governmental fees or assessments, however denoted, whether of the federal government, any state government or any local government, levied or based on this Agreement or the use of the Equipment except for those taxes, if any, pertaining to the gross income or gross receipts of Medical Center.
14. Maintenance and Inspections . GKF agrees to exercise due and proper care in the maintenance of the Equipment and to keep the Equipment in a good state of repair, reasonable wear and tear excepted. Medical Center shall be liable to GKF for all damage to the Equipment caused by the misuse, negligence, improper use or other intentional or negligent acts or omissions of Medical Center's employees, officers, agents, and physicians.
GKF (and Elekta) shall have the right of access to the Equipment for the purpose of inspecting same at all reasonable times and upon reasonable notice and with a minimum of interference to Medical Center's operations. In the event the Equipment is improperly used by Medical Center or its employees, agents, officers, and physicians, GKF may service or repair the same as needed and such expense shall be paid by Medical Center, unless the repair is covered by the Service Agreement described in Paragraph 15 hereof.
Any work so performed by or in the service or maintenance of the Equipment as a result of Medical Center's failure or neglect to do so shall not deprive GKF of any of its rights, remedies or actions against Medical Center for damages caused by such failure or neglect.
15. Equipment Modifications/Additions/Upgrades . The parties agree that the necessity and financial responsibility for modifications/additions/upgrades to the Equipment, including the reloading of the Cobalt-60 source, shall be the responsibility of GKF, at its expense, as long as the transaction contemplated herein is economically feasible to GKF.
16. Service Agreement . GKF warrants that it shall simultaneously with the execution of this Agreement enter into a Service Agreement with Elekta.
17. Termination . If, after the initial twenty-four (24) month period of service, and subsequent 12 month periods of service, Medical Center does not provide GKF with a reasonable economic justification to continue providing Gamma Knife services hereunder, then and in that event GKF shall have the option of terminating this Agreement upon the giving of written notice to Medical Center of said termination not less than ninety (90) days prior to GKF's designated termination date.
18. Options to Extend Agreement .
(a) Medical Center shall have the option at the end of the ten (10) year initial Term to:
(i) Renegotiate this Agreement for a five (5) year renewal term.
(ii) Terminate this Agreement. If Medical Center terminates this Agreement at the end of the initial term, GKF shall remove the Gamma Knife within an agreed upon period of time after the expiration of the ten (10) year initial Term.
Medical Center shall exercise one (1) of the two (2) options referred to above, by mailing an irrevocable written notice thereof to GKF at Four Embarcadero Center, Suite 3620, San Francisco, California, 94111, by registered mail, postmarked on or before the end of the ninth (9th) year of the ten (10) year initial Term of this Agreement. Any such notice shall be sufficient if it states in substance that Medical Center elects to exercise its option and states which of the two (2) options referred to above Medical Center is exercising.
19. No Warranties by GKF . Medical Center warrants that as of the Commencement Date, it shall have (a) thoroughly inspected the Equipment; (b) determined for itself that all items of the Equipment are of a size, design, capacity and manufacture selected by it; and (c) satisfied itself that to the best of its knowledge the Equipment is suitable for Medical Center's stated purposes. GKF SUPPLIES THE EQUIPMENT “AS IS” AND 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, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks as between GKF and Medical Center, shall be borne by Medical Center. Medical Center agrees to look solely to the manufacturer (Elekta) or to suppliers of the Equipment (and its software) for any and all warranty claims. Any and all warranties made by Elekta will be in its good faith best efforts enforced by GKF on behalf of Medical Center during the ten (10) year initial Term hereof. Medical Center agrees that GKF shall not be responsible for the delivery, installation, or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF shall not be responsible for any direct or indirect consequential loss or damage resulting from the installation, operation or use of the Equipment or otherwise. Medical Center 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. Notwithstanding anything to the contrary set forth above, GKF warrants that the Equipment meets the specifications set forth in the LGK Agreement.
20. Events of Default and Remedies . The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center, unless Medical Center disputes the installment payment, such as, without limitation, an incomplete procedure due to faulty Equipment.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein;
(c) Either party shall fail to observe or perform any of the other obligations required to be observed or performed by such party hereunder and such failure shall continue uncured for twenty (20) days after written notice thereof to the defaulting party by the other party;
(d) Either party 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.
(e) Within sixty (60) days after the commencement of any proceedings against either party 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 such party'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.
(f) Upon the occurrence of an Event of Default by Medical Center, GKF may at its option do any or all of the following: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole 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). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
(g) In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. GKF shall use its best efforts to immediately release the Equipment under reasonable terms and conditions and to provide Medical Center evidence thereof. Medical Center shall in any event remain fully liable for reasonable damages as provided by law 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. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
(h) Upon occurrence of an Event of Default by GKF, the Medical Center shall be entitled to liquidated damages for losses of the bargain and not as a penalty in an amount equal to the cost of the leasehold provided by the Medical Center. GKF shall remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by the Medical Center on account of such default, including but not limited, to all court costs and reasonable attorneys' fees. The rights afforded the Medical Center hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
21. Insurance .
(a) Medical Center shall, at its own cost and expense, require that its Equipment moving, installation and similar contractor(s) (such as rigger, general contractor, etc.) and any sub contractors thereof (together “contractor(s)”), have in effect, at all times while the Equipment is in such contractors' care, custody and control and throughout the course of construction, all risk and hazard insurance coverage. Such insurance coverage shall name GKF and such additional parties as GKF shall designate as Additional Named Insureds. Such insurance coverage shall be for an amount not less than the replacement cost of the Equipment. Medical Center shall further require that such contractor(s) provide a Certificate of Insurance for the coverage required herein to GKF and its designees, if any , prior to the date any such contractor commences activity subject to the requirements of this Section 21(a). Such Certificate(s) of Insurance shall include a provision for thirty (30) days advance notice prior to cancellation or termination of the coverage evidenced thereby.
(b) During the ten (10) year initial Term of this Agreement (and any successive terms) GKF shall, at its own cost and expense, keep in effect an all risk and hazard insurance policy covering the Equipment. The all risk and hazard insurance policy shall be for an amount not less than the replacement cost of the Equipment. During the ten (10) year initial Term of this Agreement, Medical Center shall, at its own cost and expense keep in effect public liability and professional liability insurance policies concerning the operation of the Equipment by Medical Center. Said policies shall be in the amounts of not less than $1,000,000 per occurrence and $3,000,000 in aggregate per year. Evidence of such insurance coverages shall be furnished by both parties to the other party upon written request, by no later than the Commencement Date.
(b) If the Equipment is rendered unusable as a result of any physical damage to, or destruction of, the Equipment, Medical Center shall give to GKF immediate notice. GKF shall determine, within thirty (30) days after the date of occurrence of such damage or destruction, whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot be repaired, GKF at its sole cost and expense shall promptly replace the Equipment. 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 promptly repaired.
22. Notices . Any notices required under this Agreement shall be sent in writing and shall be deemed to have been duly given if delivered by hand or mailed by certified or registered mail to the following addresses:
To GKF: | Chief Executive Officer |
Four Embarcadero Center, Suite 3620 San | |
Francisco, CA 94111 |
To Medical Center: | Keith Steffen |
Administrator | |
Saint Francis Medical Center 530 | |
N.E. Glen Oak Avenue Peoria, IL 61637 |
Or to such other addresses as either party may specify for the reception of notice from time to time in writing to the other party. Any such notice shall be effective only when actually received by the party to whom addressed.
23. Integration . This Agreement contains the full and entire Agreement between the parties hereto, and no oral or written understanding is of any force or effect whatsoever unless expressly contained in a writing executed subsequent to the date of this Agreement.
24. Waivers . To the extent that one party fails or chooses not to pursue any of its remedies under this Agreement or pursuant to applicable law, such shall not prejudice such party's rights to pursue any of those remedies at any future time and shall not constitute a waiver of such party's rights.
25. Assignments . This Agreement is binding upon and shall inure to the benefit of the permitted successors or assigns of the respective parties hereto, except that neither party may assign its rights or obligations under this Agreement without the express written consent of the other (which consent shall not be unreasonably withheld).
26. Amendments . This Agreement shall not be amended or altered in any manner unless such amendment or alteration is in a writing signed by both parties.
27. Record-Keeping Requirements . To the extent required by the regulations promulgated by the Health Care Financing Administration pursuant to Section 952 of the Omnibus Reconciliation Act of 1980, GKF shall:
(a) Until the expiration of four (4) years following the furnishing of services pursuant to this Agreement, GKF agrees to make available upon written request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their duly authorized representatives, this Agreement, any books, documents and records necessary to verify the nature and extent of costs incurred by Medical Center by reason of the activities of GKF under this Agreement; and
(b) If GKF elects to delegate any of its duties under this Agreement (which have a cost or value of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period) to a related organization, GKF may do so only through a subcontractor which is consented to by Medical Center, it being understood that, inasmuch as Medical Center is entering into this Agreement in reliance on GKF's reputation and expertise, that Medical Center shall be the sole judge of the reputation and expertise of the proposed delegee, and only through a subcontractor which provides that, until the expiration of four (4) years following the furnishing of services under such subcontract, the related organization shall make available, on request of the Secretary of Health and Human Services or the U.S. Comptroller General or any of their authorized representatives, the subcontract, and books, documents and records of the nature and extent of costs incurred by Medical Center by reason of activities of such related organization under such subcontract. No delegation by GKF of its duties hereunder shall relieve GKF from liability hereunder.
28. Miscellaneous Provisions .
(a) The invalidity or unenforceability of any portion or provision of this Agreement shall not effect the validity or enforceability of any other portion, nor shall either party's implied or express consent to the breach or waiver of any provision of this Agreement constitute a waiver of such provision as to any subsequent breach.
(b) In the event of any claim or controversy arising hereunder, the prevailing party in such claim or controversy shall be entitled to a reasonable attorneys' fee in addition to whatever other relief said party would be otherwise entitled.
(c) 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.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day and year first above written.
Medical Center: | GKF: | |
OSF HEALTHCARE SYSTEM, an Illinois not-for-profit corporation, owner and operator of Saint Francis Medical Center |
GK FINANCING, LLC a California limited liability company |
|
By: /s/ James M. Moore | By: /s/ Craig K. Tagawa | |
James M. Moore, CEO | Craig K. Tagawa | |
Dated: 4 Feb 00 | Chief Executive Officer | |
Dated: 2/18/00 |
Exhibit 10.12
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT ("Agreement") is made and entered into on September 13, 2001, by and between GK FINANCING, LLC, a California limited liability company ("GKF"), and Mercy Medical Center a non-profit New York corporation ("Hospital"), with reference to the following facts:
RECITALS
WHEREAS, Hospital wants to lease a Leksell Stereotactic Gamma Unit, model C without Automatic Positioning System, manufactured by Elekta Instruments, Inc., a Georgia corporation ("Elekta"); and
WHEREAS, GKF has acquired the Equipment from Elekta, and GKF is willing to lease the Equipment to Hospital pursuant to the terms and conditions of this Agreement.
AGREEMENT
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 Gamma Knife procedure (the "First Procedure Date") at the Site. 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, all other obligations, duties and covenants of GKF and Hospital shall commence as of the date hereof.
4. Certificate of Need; User License.
4.1 GKF acknowledges that Hospital will require a certificate of need ("CON") issued by the applicable state health planning agency in order to install and operate the Equipment at the Site. As soon as reasonably possible following the date of this Agreement, Hospital shall apply for and use its best efforts to obtain in a timely manner a CON for the installation and use of the Equipment at the Site. In the event Hospital's application for a CON is denied, this Agreement shall automatically terminate and all parties shall be released from the further performance of any obligations or duties arising under this Agreement.
4.2 Hospital shall apply for and 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 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 2.2 of the LGK 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") on or prior to the delivery date agreed upon by Hospital and GKF, GKF will notify Hospital in writing of the delivery date provided to them by Elekta. GKF makes no representations or warranties concerning delivery of the Equipment to the Site or the actual date thereof. If, at Hospital's request, the Equipment is delivered FOB to a location other than the Site, Hospital agrees to be responsible for any and all costs incurred in transporting the Equipment to Hospital, including but not limited to insurance, rigging, delivery.
5.2 Hospital, at its cost and expense, shall provide a safe, convenient and properly prepared 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 B to the LGK Agreement) (collectively the "Site Planning Criteria"). The location of the Site shall be subject to the prior approval of GKF.
6. Site Preparation and Installation of Equipment.
6.1 Hospital, 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 Hospital (and all material changes thereto following approval by GKF and Elekta) shall be subject to the written approval of GKF and Elekta prior to commencement of construction at the Site. Hospital shall provide GKF 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 GKF and Elekta, Hospital, at its cost and expense, shall obtain 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 GKF and Elekta, Hospital, 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, Hospital, 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 In addition to construction and improvement of the Site, Hospital, 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. Elekta provides set up of Equipment once installed.
6.4 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 Hospital shall use its best efforts to satisfy its obligations under this Section 6 in a timely manner. Hospital shall keep GKF 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 under this Section 6. In all events, Hospital 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. If the Site is not complete as of the delivery date described in Section 5.1 above plus a sixty (60) day grace period (other than by reasons of force majeure as provided in Section 23 below) (the "late completion date"), Hospital shall reimburse GKF for its out-of-pocket financing costs incurred with respect the Equipment at the Bank of America prime interest rate (which rate is sometimes referred to by the Bank as its "reference rate") plus 2% based upon GKF's cost of the Equipment for the period between the late completion date and the date that the Site is completed to the extent necessary to allow for the installation, positioning and testing of the Equipment.
6.6 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.
6.7 Hospital shall be liable for, and shall indemnify GKF in the manner described in Section 22 below from and against, all damage to the Equipment caused by (a) defects in construction of the Site or in installation or positioning the Equipment at the Site; (b) defects arising out of materials or parts provided, modified or designed by Hospital for or with respect to the Site; (c) 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 construction and preparation of the Site; and (d) negligent or intentional and wrongful operation of the Equipment at the Site. Further, neither the review and approval of Site plans, specifications and/or positioning plans by GKF and/or Elekta, nor the construction of any other Site preparation, shall relieve Hospital 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.
7. Marketing Support. GKF, in coordination with Hospital, shall provide marketing support for the Gamma Knife service to be provided by Hospital. Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve (12) month period during the Term, GKF and Hospital shall develop a mutually agreed upon marketing budget and plan for the clinical service to be supported by the Equipment for the succeeding twelve (12) month period of the Term. Once approved, the marketing budget and plan shall be implemented by Hospital in accordance with its terms. As funds are expended by Hospital in accordance with the marketing budget and plan, Hospital shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse Hospital for fifty percent (50%) of the expenditures up to an annual maximum of Fifty Thousand Dollars ($50,000). It is acknowledged by the parties that such expenses to be reimbursed by GKF as provided in this Section 7 have been included in GKF's calculation of Hospital's Lease Payments so as to allow GKF to recover such GKF reimbursed expenses during the Term of this Agreement.
8. Per Procedure Payments. As rent for the lease of the Equipment to Hospital pursuant to this Agreement and in consideration for GKF's reimbursement of the amounts set forth in Section 7 above, Hospital shall pay to GKF the sum of Eight Thousand Two Hundred Fifty Dollars ($8,250) 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 (the "Lease Payment"). 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.
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 Gamma Knife procedures performed 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. 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 (including, without limitation, the books and records pertaining to any other radiosurgery equipment or devices) to 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, at Hospital's cost and expense. Hospital also shall promptly execute and deliver, or cause to be executed and delivered, to GKF any statement or instrument 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 At Hospital's cost and expense, 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 22 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:
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. The Gamma Knife shall be available for use by all credentialed neurosurgeons and radiation oncologists, subject to Hospital's medical staff bylaws and Board of Trustees approval.
10.2 Direct, supervise and administer all Hospital services in connection with the provision of Gamma Knife procedures.
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 oncologists, etc.) for the Gamma Knife service to be operated by the Hospital.
10.4 Keep and maintain the Equipment and the Site fully protected, secure and free from unauthorized access or use by any person.
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 operating condition and repair, reasonable wear and tear excepted, and (b) maintain in full force and effect a Service Agreement with Elekta 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 that are known to Hospital, 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 22 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, employees, agents, contractors and physicians. 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 officers, employees, agents, contractors and physicians, 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 within thirty (30) days following GKF's written request therefore. If such costs are not paid in full when due, Hospital shall pay GKF interest on such unpaid costs which interest shall accrue from the due date of such costs until paid in full 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) plus 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. 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.
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 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 Gamma Knife procedures. Between Hospital and GKF, Hospital shall be fully liable for, and in the manner described in Section 22 below shall indemnify and hold GKF harmless from and against, all negligent, intentional or wrongful acts or omissions of such physicians, professional, technical and support personnel.
16. Taxes. GKF shall pay all sales or use taxes imposed or assessed in connection with the purchase of the Equipment and all personal property taxes imposed, levied or assessed on the ownership and possession of the Equipment during the Term. All other taxes, assessments, licenses or other charges imposed, levied or assessed on the Equipment during the Term shall be paid by Hospital before the same shall become delinquent, whether such taxes are assessed or would ordinarily be assessed against GKF or Hospital; provided, however, Hospital shall not be required to pay any federal, state or local income, franchise, corporation or excise taxes imposed upon GKF's net income realized from the lease of the Equipment. In case of a failure by Hospital to pay any taxes, assessments, licenses or other charges when and as required under this Section, GKF may pay all or any part of such taxes, in which event the amount paid by GKF shall be immediately payable by Hospital to GKF 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 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.
17. No Warranties by GKF. Hospital warrants that as of the First Procedure Date, it shall have (a) thoroughly inspected the Equipment, (b) determined that 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 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. GKF shall not be liable for any direct, indirect and consequential losses or damages suffered by Hospital or by any other person, and 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 injury to persons or property resulting from the failure of, defective or faulty design, operation, condition, suitability or use of the Equipment. 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. GKF shall not be responsible for the delivery, installation or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing.
18. Termination for Economic Justification. If, following the initial twenty four (24) 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 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 provision of Gamma Knife services 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.
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 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 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 fifteen (15) 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 fifteen (15) 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.
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 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 lease 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.
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. GKF will use good faith efforts to release or resell 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. The terms and provisions of this Section shall survive the expiration or earlier termination of this Agreement.
21. Insurance.
21.1 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.
21.2 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, directors, agents, employees, contractors or physicians. 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 to GKF no later than the First Procedure Date and as of each annual renewal of such policies during the Term.
21.3 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 21.2 above and which names GKF as an additional insured party. 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.
21.4 During the Term, Hospital shall purchase and maintain all workers compensation insurance to the maximum extent required by applicable law.
22. Indemnification.
22.1 Indemnification by Hospital. Hospital shall indemnify, defend, protect and hold GKF and its members, managers, officers, employees, agents and contractors (collectively the "GKF Indemnified Parties") 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 ("collectively "Damages") asserted against or incurred by any of the GKF Indemnified Parties 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) the use and operation of the Equipment during the Term; (c) the design, construction and preparation of the Site by Hospital or the maintenance of the Site during the Term by Hospital; (d) Damages to the Equipment from the defective, faulty or improper design, construction or preparation of the Site or the installation and positioning of the Equipment; (e) Damages to the Equipment (including any Damages arising out of or related to violations by Hospital, its agents, officers, physicians, employees) caused by the negligent or wrongful acts or omissions of Hospital, its agents, officers, physicians, employees or contractors (in the event the Equipment is destroyed or rendered unusable, the 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.
22.2 Indemnification by GKF. GKF shall indemnify, defend, protect and hold Hospital and its members, managers, officers, employees, agents and contractors (collectively the "Hospital Indemnified Parties") harmless from and against all Damages asserted against or incurred by any of the Hospital Indemnified Parties which in any manner arise out of or relate to the failure by GKF to fully perform, observe or satisfy its covenants, duties or obligations contained in this Agreement.
22.3 Upon the occurrence of an event for which any of the GKF Indemnified Parties or the Hospital Indemnified Parties (as applicable, an "indemnified party") are entitled to indemnification under this Agreement, the applicable indemnified party shall give written notice thereof to Hospital or GKF (as applicable, the "indemnifying party") setting forth the type and amount of Damages. If the indemnity relates to a Third Party Claim (as defined in Section 22.4 below), the matter shall be subject to Section 22.4 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 applicable indemnifying party either shall acknowledge in writing to the applicable indemnified party its obligation to indemnify hereunder and pay the Damages in full to such indemnified party or dispute its obligation to indemnify in a written notice delivered to such 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. If the parties are unable to resolve the disagreement within forty-five (45) days after the indemnified party's written notice is given, the indemnified party may seek its legal and equitable remedies to enforce the indemnified party's indemnification obligations hereunder.
22.4 The indemnified party shall give written notice to the indemnifying party as soon as reasonably possible after it 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 22. 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 22.5 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 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.
22.5 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 22.5 shall not impair, limit or otherwise restrict the indemnifying party's indemnification obligations arising under this Section 22 or GKF's right to enforce such obligations.
22.6 The indemnity obligations under this Section 22 shall survive the termination of this Lease with respect to events occurring during or relating to the Term.
22.7 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 the indemnified party. 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.
23. Miscellaneous.
23.1 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. 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.
23.2 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.
23.3 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.
23.4 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.
23.5 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.
23.6 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.
23.7 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.
23.8 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.
23.9 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 California applicable to agreements made and to be performed in that State.
23.10 Exhibits. All exhibits attached hereto and referred to in this Agreement are hereby incorporated by reference herein as though fully set forth at length.
23.11 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.
23.12 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.
23.13 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.
23.14 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), (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: | Craig K. Tagawa |
Chief Executive Officer
GK Financing, LLC
Two Embarcadero Center, Suite 2370
San Francisco, CA 94111
To Hospital: | Vincent DiRubbio |
Mercy Medical Center
President and CEO
1000 N. Village Ave.
Rockville Centre, N.Y., 11570
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.
23.15 Special Provisions Respecting Medicare and Medicaid Patients
23.15.1 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.
23.15.2 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 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.
23.16 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.
24. Notwithstanding any other provision in this contract, the facility remains responsible for ensuring that any service provided pursuant to this contract complies with all pertinent provisions of Federal, State and local statues, rules and regulations.
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/ Craig K. Tagawa
Craig K. Tagawa
Chief Executive Officer
"HOSPITAL" | MERCY MEDICAL CENTER, |
a not-for-profit corporation
By: /s/ Vincent DiRubbio
Vincent DiRubbio
President/CEO
Section 8.
The following bold type shall be substituted for the first sentence. PER PROCEDURE PAYMENTS. AS RENT FOR THE LEASE OF THE EQUIPMENT TO HOSPITAL PURSUANT TO THIS AGREEMENT AND IN CONSIDERATION FOR GKF'S REIMBURSEMENT OF THE AMOUNTS SET FORTH IN SECTION 7 ABOVE, HOSPITAL SHALL PAY TO GKF THE SUM OF eight thousand two hundred fifty dollars ($8,250) FOR "PROCEDURE" one (1) through and including procedure one hundred twenty (120) AND eight thousand dollars ($8,000) FOR PROCEDURE one hundred twenty-one (121) through and including Procedure one hundred forty-nine (149) AND seven thousand five hundred dollars ($7,500) FOR ANY AND ALL PROCEDURES GREATER THAN one hundred forty-nine (149) PERFORMED BY HOSPITAL OR ITS REPRESENTATIVES OR AFFILIATES, IRRESPECTIVE OF WHETHER THE PROCEDURE IS PERFORMED ON THE EQUIPMENT OR USING ANY OTHER EQUIPMENT OR DEVICE (THE "LEASE PAYMENT"). THE CALCULATION FOR THE NUMBER OF PROCEDURES WILL RUN IN TWELVE (12) MONTH CYCLES STARTING WITH THE FIRST PROCEDURE DATE. EACH TWELVE (12) MONTH PERIOD FOLLOWING THE FIRST PROCEDURE DATE WILL BEGIN CALCULATING PROCEDURES FROM ZERO (0).
Exhibit 10.13
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:
RECITALS
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.
AGREEMENT
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 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.
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 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 One Hundred Thousand Dollars ($100,000.00). 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 Eight Thousand Five Hundred Dollars ($8,500.00) 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 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:
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 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. 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 three (3) years after the First Procedure Date (the “Three Year 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 Three Year Date and not more than once during any twelve month period commencing from the Three Year Date. Within ten (10) days following the other party’s receipt 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 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 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.
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 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.
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.
(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. 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 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 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 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.
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), (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: | Craig K. Tagawa |
Chief Executive Officer GK Financing, LLC | |
Four Embarcadero Center, Suite 3700 | |
San Francisco, CA 94111 | |
To Hospital: | AHS Albuquerque Regional Medical Center, L.L.C. |
P.O. Box 25555 | |
Albuquerque New Mexico 87125 | |
Attn: CEO | |
CC | Ardent Health Services, LLC |
One Burton Hills Blvd., Suite 250 | |
Nashville, Tennessee 37215 | |
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 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 through 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.
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/ Craig K. Tagawa | |
Craig K. Tagawa, | |
Chief Executive Officer | |
“HOSPITAL” | AHS ALBUQUERQUE REGIONAL MEDICAL CENTER, LLC |
By: /s/ Paul Herzog | |
Name: Paul Herzog | |
Title Chief Executive Officer | |
By: /s/ Jamie Hopping | |
Name: Jamie Hopping | |
Title: President |
Exhibit 10.14
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT (“Agreement”) is made and entered into on March 21, 2003, by and between GK FINANCING, LLC, a California limited liability company (“GKF”), and Northern Westchester Hospital Center, a not for profit corporation (“Hospital”), with reference to the following facts:
RECITALS
WHEREAS, Hospital wants to lease a Leksell Stereotactic Gamma 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.
AGREEMENT
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 Gamma Knife procedure (the “First Procedure Date”) at the Site. Hospital’s obligation to make the rental payments to GKF for the Equipment described in Section 8 below shall commence as of the date of performance of the first clinical Gamma Knife procedure (the “ First Procedure Date)”.
4. User License .
4.1 Hospital shall apply for and 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 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. The effectiveness of the agreement is subject to the prior approval of the installation of the Equipment by the New York State Department of Health and the satisfaction by the Hospital of all its remaining obligations to obtain approvals set forth in this Section 4. Hospital, at its cost and expense, shall obtain 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.
5. Delivery of Equipment; Site .
5.1 GKF shall coordinate with Elekta and Hospital to have the Equipment delivered to Hospital at 400 East Main Street Mt. Kisco NY (the “Site”) on or prior to the delivery date agreed upon by Hospital and Elekta in writing. GKF makes no representations or warranties concerning delivery of the Equipment to the Site or the actual date thereof.
5.2 Hospital, at its cost and expense, shall provide a safe, convenient and properly prepared 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 B to the LGK Agreement) (collectively the “Site Planning Criteria”). GKF has reviewed and approved the “Site Planning Criteria” and the location of the site.
6. Site Preparation and Installation of Equipment .
6.1 Hospital, 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 ( “ Hospital Plan”, as set forth on Exhibit 6.1 of this agreement) The Hospital Plan, to the best of GKF’s knowledge comply in all respects with the Site Planning Criteria . With respect to the Hospital Plan, GKF makes no representations regarding the compliance 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.
The Hospital Plan has been reviewed and approved by GKF and Elekta and all material changes thereto shall be subject to the written approval of GKF and Elekta. Hospital shall provide GKF and Elekta with a reasonable period of time for the review and consideration of all material changes to the Hospital Plan following submission thereof for approval.
6.2 Based upon the Hospital Plan approved by GKF and Elekta, Hospital, 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, Hospital, 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 In addition to construction and improvement of the Site, Hospital, 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 Upon completion of construction, the Site shall (a) comply in all material respects with the Hospital Plan 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 Hospital shall use its reasonable efforts to satisfy its obligations under this Section 6 in a timely manner. Hospital shall provide information to GKF as reasonably requested by GKF concerning site preparation, the 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 under this Section 6. In all events, Hospital 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. If the Site is not complete as of the delivery date described in Section 5.1 above plus a sixty (60) day grace period (other than by reasons of force majeure as provided in Section 23.16 below) (the “late completion date”), Hospital shall reimburse GKF for its out-of-pocket financing costs incurred with respect the Equipment at the Bank of America prime interest rate (which rate is sometimes referred to by the Bank as its “reference rate”) plus 2% based upon GKF’s cost of the Equipment for the period between the late completion date and the date that the Site is completed to the extent necessary to allow for the installation, positioning and testing of the Equipment.
6.6 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.
6.7 Hospital shall be liable for, and shall indemnify GKF in the manner described in Section 22 below from and against, all damage to the Equipment caused by (a) defects in construction of the Site or in installation or positioning the Equipment at the Site ; (b) defects arising out of materials or parts provided, modified or designed by Hospital for or with respect to the Site, except any defects rising from the Equipment ; (c) negligent or wrongful acts or omissions by Hospital or any of its officers, directors, agents, contractors (or their subcontractors), or employees in connection with the construction and preparation of the Site ; and (d) negligent or wrongful operation of the Equipment at the Site. Further, neither the review and approval of Site plans, specifications and/or positioning plans by GKF and/or Elekta, nor the construction of any other Site preparation, shall relieve Hospital 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.
7. Educational Support . Hospital shall provide community education (e.g.,seminars) to physicians concerning the Equipment and Gamma Knife procedures and community education to physicians. Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve (12) month period during the Term, GKF and Hospital shall develop a mutually agreed upon educational budget and plan for the succeeding twelve (12) month period of the Term. Once approved, the educational budget and plan shall be implemented by Hospital in accordance with its terms. As funds are expended by Hospital in accordance with the educational budget and plan, Hospital shall submit invoices (together with documentary evidence supporting the invoices) for its expenditures and, promptly following the receipt of such invoices, GKF shall reimburse Hospital for fifty percent (50%) of the expenditures up to an annual maximum of Fifty Thousand Dollars ($50,000). It is acknowledged by the parties that such expenses to be reimbursed by GKF as provided in this Section 7 have been included in GKF’s calculation of Hospital’s Lease Payments so as to allow GKF to recover such GKF reimbursed expenses during the Term of this Agreement.
8. Payment Terms
8.1 Per Procedure Payments . As rent for the lease of the Equipment to Hospital pursuant to this Agreement, Hospital shall pay to GKF the sum as set forth in Exhibit 8 of this Agreement. (the “Lease Payment”). Hospital shall pay the Lease Payment for each “Procedure” that is completed by the Hospital or its representatives or affiliates at the Site, as defined in Section 5.1, irrespective of whether the Procedure is performed on the Equipment or using any other equipment or devices. As used herein, the term a “Procedure” means any treatment using external, single fraction, conformal radiation, commonly called stereotactic radiosurgery, that may include one or more isocenters during the patient treatment session, delivered to any site(s) superior to the foramen magnum. Hospital’s obligation to make Lease Payments pursuant to this Section shall be expressly limited by Section 8.2, 8.3 and 8.4 hereof.
If no Procedures are performed by Hospital or any other person utilizing the Equipment or any other equipment devices at the Hospital , Hospital shall not owe any Lease Payment to GKF. GKF shall submit an 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 during the first and second half of the calendar month, respectively. The Hospital shall pay invoices received during the initial three (3) months following the First Procedure Date within sixty (60) days after receipt of such invoices by the Hospital. For invoices received by the Hospital following the initial three (3) months following the First Procedure Date, the Hospital shall pay invoices within thirty (30) days after submission by GKF to Hospital. All or any portion of an invoice which is not paid in full within forty-five (45) days after submission (with respect to invoices provided after the initial three (3) months following the First Procedure Date) or seventy (75) days after submission (with respect to invoices provided during the initial three (3) months following the First Procedure Date) shall bear interest at the rate of the lesser of one percent (1.0%) 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. If GKF shall at any time accept a Lease 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 (including, without limitation, the books and records pertaining to any other radiosurgery equipment or devices) relating solely to the Hospital’s provision of Procedures to 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. GKF shall not have access to nor shall it directly or indirectly access any “Patient Health Information” as such terms are defined by HIPAA. GKF agrees that it shall execute such documents and agreements as may be reasonably required by Hospital to assure compliance with HIPAA.
In the event a Procedure is not completed due to a technical problem with the Equipment, the Hospital will not be charged a Lease Payment for such Procedure.
8.2 Adjustment to Lease Payment Due to Increase/Decrease in the Reimbursement Rate.
(a) If the “Reimbursement Rate” in effect on any “Reset Date” is fifteen (15%) less than the “Base Rate” (as such quoted terms are defined in Section 8.2(e) below), Hospital shall inform GKF in writing within ninety (90) days after the applicable Reset Date and shall provide GKF with the information used in calculating such Reimbursement Rate. Within thirty (30) days after GKF’s receipt of such notice, the parties shall meet to renegotiate in good faith the Lease Payments payable by Hospital under this Agreement.
In determining the renegotiated Lease Payment, any reduction or increase thereto may or may not be (and is not required to be) in proportion to the reduction to the Reimbursement Rate. Furthermore, any reduction to the Lease Payment will be calculated to provide Hospital with “Operating Income” (as defined below) at a break even level as a result of such reduction (i.e., any reduction shall not exceed the amount required to achieve such “Break Even Level”. The term “Break Even Level” is defined herein as zero dollars ($0) in Operating Income (as defined in Section 8.2(e) hereof) arising from the operation of the Equipment; provided that no Lease Payment reduction shall be imposed that would result in negative Operating Income to GKF in accordance with subsection 8.2(e) below. If the Lease Payment proposed by Hospital would result in negative Operating Income to GKF, then (i) Hospital shall have the recourse to arbitration as provided in Section 8.2(c) below, and (ii) this Agreement shall remain unchanged and in full force and effect until outcome of arbitration, if any.
(b) Each of GKF and Hospital shall permit the other party and its representatives to inspect its books and records pertaining to the Equipment in order to verify such Operating Income. All HIPAA regulations will be applied in the inspection of Hospital’s books and GKF agrees that it shall execute such documents and agreement as may be reasonably required by Hospital to assure compliance with HIPAA.
(c) If the Hospital and GKF are unable to reach an agreement on the new Lease Payment rate, then GKF and Hospital shall within ten (10) days of their failure to reach an agreement in accordance with the last sentence of Section 8.2(a), then GKF and Hospital shall each appoint an arbitrator within ten (10) days of their failure to reach an agreement in accordance with the time frames set forth in Section 8.2(a). Such arbitrators shall appoint a third arbitrator within ten (10) days after their appointment. The arbitrators shall have not less than ten (10) years experience in medical equipment financing, be in good standing with the American Arbitration Association or other comparable organization, and have no prior relationship, attorney/client or otherwise, with any of the parties. The parties shall present all necessary information concerning the dispute to the arbitrators within thirty (30) days following the arbitrator’s appointment. Such arbitrators shall review the information presented by both parties and shall render a decision within thirty (30) days of his of her appointment. The arbitrator’s decision, which shall be made by majority or unanimously, shall be based on a determination of an equitable apportioning of the economic losses resulting to the Hospital as a result of the decrease in the Reimbursement Rate among the Hospital and GKF, and taking into account the capital investment made by the parties. The arbitrators’ decision shall be binding upon the parties and non-appealable. The fees and expenses of the arbitrator shall be shared equally between the parties. The foregoing arbitration procedure shall apply only to disagreements arising from this Section 8.2 and not to any other disputes or disagreements arising from this Agreement.
(d) If the parties mutually agree on a renegotiated Lease Payment or if a renegotiated Lease Payment is determined by the arbitrator as set forth above, then such renegotiated Lease Payment shall become effective on the date that is three (3) months following the applicable Reset Date, and Exhibit 8.2 hereto shall be deemed automatically amended as of such date.
(e) As used in this Section 8.2, (i) the “Reimbursement Rate” means the average aggregate technical component reimbursement for Gamma Knife Procedures received by Hospital from all payor sources in effect as of any Reset Date; (ii) the “Base Rate” means the average aggregate technical component reimbursement for Gamma Knife Procedures received by Hospital from all payor sources in effect on the date which is one (1) year after the First Procedure Date ; provided that, if the Lease Payment is renegotiated by the parties at any time or from time-to-time pursuant to this Section 8.2, then, immediately following the implementation of the renegotiated Lease Payment, the Base Rate shall become the Reimbursement Rate in effect as of the Reset Date that immediately precedes the implementation of such renegotiated Lease Payment; (iii) the “Reset Date” means the date which is two (2) years after the First Procedure Date of this Agreement and each annual anniversary date thereafter and (iv) “Operating Income” with respect to either party, means the revenues generated by such party from the Equipment less such party’s corresponding direct operating expenses related to the Equipment, including, without limitation, applicable interest and depreciation expenses on the Equipment and Site improvements, but excluding physician professional fees and direct or indirect administrative overhead expenses.
(f) If the Lease Payment is reduced at any time or from time-to-time pursuant to this Section 8.2, and thereafter, the Reimbursement Rate in effect on any Reset Date increases by fifteen percent (15%) or more over the then-effective Base Rate, then, for each such increase, the Lease Payment shall also be increased in proportion to the percentage increase in the Reimbursement Rate; provided that in no event shall the increased Lease Payment exceed the Lease Payment in effect on the First Procedure Date.
8.3 New Technology . Except for Section 8.3(d) below, this Section 8.3 shall only become applicable (i) on or after the date that is five (5) years after the First Procedure Date (the “Five Year Date”), and (ii) if the average number of Procedures actually performed using the Equipment during the twelve (12) month period immediately preceding the Five Year Date was not less than one hundred fifty (150) Procedures (collectively, the “New Technology Preconditions”). If both of the New Technology Preconditions have been satisfied, the following provisions shall apply:
(a) If at any time on or after the Five Year Date, “New Technology” becomes commercially available to perform Procedures which Hospital desires to purchase or lease, Hospital shall, promptly provide written notice thereof to GKF (the “New Technology Notice”). As used herein, “New Technology” shall mean a treatment modality for providing Procedures which uses medical technology not commercially available as of the First Procedure Date, but which subsequently becomes commercially available.
(b) If, within ninety (90) days following GKF’s receipt of the New Technology Notice, the parties are unable to agree in good faith on the lease payment or sale price or other material terms for the New Technology, Hospital may lease or purchase the New Technology from any other person or entity; provided that, prior to entering into any lease or purchase agreement with another person or entity for the New Technology, Hospital shall first provide written notice to GKF setting forth the equipment to be used, the amount to be paid, the payment of and (if applicable) the term of such proposal transaction (the “Option Notice”). GKF shall have thirty (30) days following its receipt of the Option Notice (the “Option Period”) within which to agree or decline to lease or sell the New Technology to Hospital on the same terms as stated in the Option Notice. If GKF agrees to lease or sell the New Technology to Hospital on the same terms as stated in the Option Notice, GKF shall provide written notice of the same to Hospital, and the parties shall promptly enter into a lease or sale of the New Technology on such terms as stated in the Option Notice. If GKF declines to lease or sell the New Technology to Hospital on the terms as stated on the Option Notice, GKF shall provide written notice of, same to Hospital (or, if GKF fails to provide such written notice, GKF shall be deemed to have declined to lease or sell such New Technology) and Hospital shall have one hundred twenty days (120) days following its receipt of GKF’s notice of declination (the “Post-Option Period”) within which to enter into a lease or purchase of the New Technology in accordance with the terms of the Option Notice. Hospital shall provide GKF with a certification of its officer promptly following the full execution of such lease or purchase agreement which certification shall set forth that Hospital has entered into a lease or purchase agreement for the New Technology which lease or purchase agreement contains the terms set forth in the Option Notice, as well as any and all additional terms not noted in the Option Notice and contains no additional substantive terms not stated in the Option Notice. If Hospital does not enter into a lease or purchase agreement for the New Technology containing the terms substantially similar to the terms set forth in the Option Notice within the Post-Option Period, or if any of the terms set forth in the Option Notice are supplemented, deleted, changed or otherwise modified in any way, the process of requiring a new Option Notice, Option Period and Post-Option Period shall be repeated in accordance with the terms set forth in this Section 8.3(b)
(c) From and after the date on which the Hospital first uses the New Technology, Hospital will not be obligated to pay Lease Payments to GKF for Procedures that are performed on the New Technology. In consideration for the foregoing concession made by GKF, Hospital agrees to guarantee a minimum payment (the “Minimum New Technology Payment”) to GKF for each 365-day period during the Term of this Agreement commencing from and after the date on which the first procedure is performed on the New Technology, the New Technology order date (each such 365-day period is referred to as a “New Technology Payment Period”). The Minimum New Technology Payment shall be equal to the Lease Payment then in effect multiplied by seventy-five (75). Thus, for each New Technology Payment Period, GKF shall be entitled to the greater of: (a) the Lease Payment then in effect, multiplied by the number of Procedures that are performed using the Equipment and any other equipment or devices (other than the New Technology) during such New Technology Payment Period, or (b) the Minimum New Technology Payment (the “New Technology Lease Payment”) . The foregoing shall apply irrespective of whether 75 Procedures are actually performed using the Equipment during the New Technology Payment Period, and/or whether the New Technology is acquired by Hospital through purchase or lease (from GKF or any other entity). To the extent applicable, within thirty (30) days following the close of each New Technology Payment Period, Hospital shall pay to GKF the shortfall between the Lease Payments made to GKF during such New Technology Payment Period and the Minimum New Technology Payment.
(d) Nothing set forth in this Section 8.3 shall be deemed or construed to prohibit the purchase or lease by Hospital of any New Technology at any time prior to or after the Five Year Date or otherwise require the Hospital to comply with Section 8.3 (a) or (b). Subject to Section 8.4(b) below, if Hospital purchases or leases any New Technology without first having satisfied all of the New Technology Preconditions, then, Hospital’s obligation set forth in Section 8.1 above to pay Lease Payments for all Procedures, irrespective of whether the Procedure is performed on the Equipment or using any other equipment or devices, including, without limitation, the New Technology, shall remain in full force and effect until the expiration or termination of this Agreement.
8.4 Obsolescence.
(a) If at any time on or after the Five Year Date, should the Equipment at any time be deemed to be obsolete (as determined in accordance with Section 8.4(d) below), the Hospital shall only be required to pay GKF the greater of the following : (i) the then current Lease Payment (as may be modified on each Reset Date as set forth in Section 8.2) for each Procedure performed on the Equipment, or (ii) an amount, on an annual basis, equal to seventy-five (75) multiplied by the then effective Lease Payment ( as may be modified on each Reset Date as set forth in Section 8.2). Payments owed under clause (ii) of the immediately prior sentence shall be paid by the Hospital within thirty (30) days following each annual anniversary of the date on which the first Procedure is performed on new equipment after it was determined that the Equipment is obsolete.
Notwithstanding the foregoing, in the event the Equipment is deemed to be obsolete hereunder, if GKF and the Hospital enter into an agreement whereby GKF provides Alternative Equipment to the Hospital, then from and after the date on which the Hospital first uses the Alternative Equipment provided by GKF, the Hospital’s payment obligation shall be limited to the Hospital’s obligation to pay GKF an equal amount to (i) the then effective Lease Payment (as may be modified on each Reset Date as set forth in Section 8.2) for those Procedures performed using the Equipment plus (ii) the payments required to be made for the use of the Alternative Equipment in accordance with the agreement governing such Alternative Equipment between the Hospital and GKF.
(b) Notwithstanding the foregoing, if the Equipment becomes obsolete on or after the Five Year Date, and Hospital has already purchased or leased (or subsequently purchases or leases) New Technology, the Obsolescence Lease Payment shall supersede Hospital’s obligation to pay Lease Payments for all Procedures (whether performed on the Equipment or on any other equipment or devices, including, without limitation, the New Technology).
(c) If at any time on or after the Five Year Date, the Equipment becomes obsolete as determined above, GKF shall have the option in its sole discretion 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. In the event GKF elects to terminate the Agreement based on such obsolescence, GKF will be responsible at its sole cost and expense for removing the Equipment and transporting it from the Hospital.
(d) A determination as to whether the Equipment is obsolete may be requested in writing by Hospital at any time on or after the Five Year Date and not more than once during any twelve-month period commencing from the Five Year Date. The Equipment shall be deemed to be obsolete if it is determined that another piece of equipment (but not a combination of different types of equipment) is more medically appropriate to use than the Equipment to perform Procedures to treat 65% or greater of the following indications : metastatic brain tumors (solitary and multiple), meningiomas, arteriovenous malformations, acoustic neuromas, pituitary tumors, craniopharyngiomas, gliomas, glioblastomas, nasopharyngeal carcinomas, ocular melanomas and trigeminal neuralgia. If GKF does not agree that the Equipment is obsolete, it shall, within ten (10) days following its receipt of such request, notify the other party in writing of the same. Within (10) ten days thereafter, 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, GKF or any of GKF’s members. The three designated physicians shall have thirty (30) days within which to determine whether the Equipment is obsolete based on the standard set forth above in this subsection (d). Any determination of obsolescence must state in writing that the Equipment is obsolete reciting the standard set forth above in this subsection (d), and must be signed by each designee. The determination of two of the three designated physicians shall be required to determine whether the Equipment is obsolete. Each party shall pay their own costs or expenses incurred in connection with any determination under this Section 8.4(d).
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 reasonable 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, at Hospital’s cost and expense. Hospital also shall promptly execute and deliver, or cause to be executed and delivered, to GKF any statement or instrument 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 At Hospital’s cost and expense, 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 22 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:
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 a minimum of one (1) Gamma Knife trained team comprised of one (1) neurosurgeon, one (1) radiation oncologist and one (1) physicist. Hospital will use its reasonable efforts to maintain two teams. In the event the Hospital experiences the loss of physician teams on staff, Hospital will utilize Locum Tenens or temporary physicians (in the same specialty as the replaced physicians) to be trained to operate the Equipment and cover in the interim period. In the Hospital shall be provided with six (6) Elekta Gamma Knife training slots for the training of its two Gamma Knife teams. All travel and entertainment expenses related to training are the responsibility of the Hospital. The Gamma Knife shall be available for use by all credentialed neurosurgeons and radiation oncologists. GKF will provide assistance with additional physicians training on the Equipment as mutually agreed upon by Hospital and GKF.
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 Keep and maintain the Equipment and the Site fully protected, secure and free from unauthorized access or use by any person.
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.
11.3 Restrictive Convenant
(a) During the initial three (3) year period following the First Procedure Date, none of GKF or American Shared Radiosurgery Services (“ASRS”) shall directly or indirectly, within Westchester County lease, sell and/or otherwise own any interest in any Gamma Knife system, whether directly or as a shareholder, partner, equity holder, manager or otherwise
(b) GKF and ASRS acknowledge that: (i) the terms contained in this Section are necessary for the commercially reasonable and proper protection of the Hospital’s interests including without limitation, the Hospital’s substantial investment in the construction and improvement of the Site to accommodate the installation of the Equipment; (ii) each and every covenant and restriction contained in this Section is reasonable in respect of such matter, length of time and geographical area; and (iii) the Hospital is relying on the representations of the parties contained in this Section that they shall abide by and be bound by each of the aforesaid covenants and restrictions.
(c) If any court or tribunal of competent jurisdiction determines that the duration, geographical limit or any other aspect of the provisions of this Section is unenforceable in accordance with its terms in a particular jurisdiction, the provisions of this Section shall not terminate, but shall be deemed amended to the extent required to render them valid and enforceable in such jurisdiction and such court or tribunal is hereby authorized and directed to amend this Agreement only to the extent that such court or tribunal determines such an amendment is necessary to make it valid and enforceable in said jurisdiction.
(d) Each of GKF and ASRS further agree that damages at law would be an insufficient remedy for the Hospital in the event that any of them violate the provisions of this Section, and that the Hospital shall be entitled to, among other remedies, make an application to a court of competent jurisdiction to obtain injunctive relief. Nothing contained herein shall be construed as prohibiting the Hospital from pursuing any other remedies available to the Hospital for a breach or threatened breach of the provisions of this Section, including the recovery of damages from any of GKF and/or ASRS.
(e) The unsuccessful party in judicial proceedings to enforce its rights under this Section shall reimburse the successful party for the reasonable legal fees, costs and disbursements which it incurs as a result of such proceedings.
(f) The restrictive covenants contained in this Section shall automatically terminate and be of no further force and effect upon the termination of this Agreement for any reason.
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 operating condition and repair, reasonable wear and tear excepted, and (b) maintain in full force and effect a Service Agreement with Elekta 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. GKF will comply with HIPPA patient privacy regulations.
12.3 Hospital shall be liable for, and in the manner described in Section 22 below shall indemnify GKF from and against, any damage to or destruction of the Equipment caused by the misuse, improper use or wrongful or negligent acts or omissions of Hospital’s officers, employees, agents, contractors and physicians. In the event the Equipment is damaged as a result of the misuse, improper use, or other wrongful or negligent acts or omissions of Hospital’s officers, employees, agents, contractors and physicians, 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 promptly upon written request together with interest thereon at the rate of one (1.0%) 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. 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. In the event the Hospital is unable to use the equipment after providing written notice to GKF as set forth in this section, the Hospital shall not be obligated to pay any Lease Payment to GKF for Procedures not provided on the Equipment until GKF has remedied the problems set forth in the written notice.
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 seventh (7th) 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 period of two (2) years. It is the intent of the parties that GKF shall be responsible for Equipment related costs and expenses and that Hospital shall be responsible for Site related costs and expenses for modifications, additions or upgrades to the Equipment, including the reloading of the Cobalt-60 source that are mutually agreed upon by GKF and Hospital. GKF shall be responsible for upgrading the Gamma Knife to its most current version or at least to within one release of the current version. In the event Equipment is upgraded, Hospital and GKF will mutually agree to extend the term of contract and/or increase the fee per procedure rate to offset the additional expense to GKF.
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 Gamma Knife procedures.
16. Taxes . GKF shall pay all sales or use taxes imposed or assessed in connection with the purchase of the Equipment and all personal property taxes imposed, levied or assessed on the ownership and possession of the Equipment during the Term. All other taxes, assessments, licenses or other charges imposed, levied or assessed on the Equipment during the Term shall be paid by Hospital before the same shall become delinquent, whether such taxes are assessed or would ordinarily be assessed against GKF or Hospital; provided, however, Hospital shall not be required to pay any federal, state or local income, franchise, corporation or excise taxes imposed upon GKF’s net income realized from the lease of the Equipment. In case of a failure by Hospital to pay any taxes, assessments, licenses or other charges when and as required under this Section, GKF may pay all or any part of such taxes, in which event the amount paid by GKF shall be promptly payable by Hospital to GKF upon written request together with interest thereon at the rate of at the rate of one percent (1.0%) 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.
17. No Warranties by GKF . Hospital warrants that as of the First Procedure Date, it shall have (a) thoroughly inspected the Equipment, (b) determined that 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’s intended purposes and is good working order, condition and repair. 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. GKF shall not be liable for any direct, indirect and consequential losses or damages suffered by Hospital or by any other person, and 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 injury to persons or property resulting from the failure of, defective or faulty design, operation, condition, suitability or use of the Equipment. 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’s 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. GKF shall not be responsible for the delivery, installation or operation of the Equipment or for any delay or inadequacy of any or all of the foregoing. GKF will enforce any warranties provided to it by Elekta.
18. Termination for Economic Justification . If, following the initial twenty four (24) months after the First Procedure Date and following each subsequent 12 month period thereafter during the Term, based upon the utilization of the Equipment 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 provision of Gamma Knife services 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. In the event GKF exercises this Economic Justification clause or terminates the Agreement for any reason other than that the Hospital is in breach of the Agreement, GKF will be responsible at its sole cost and expense for removing the Equipment and transporting it from the Hospital.
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: or shall automatically terminate unless extended by the Hospital in writing.
19.2 At the end of the Term, the Hospital shall have the option to extend the Term of the Agreement for a specified period of time and upon such other terms and conditions as may be agreed upon by GKF and the Hospital. Should the Hospital not exercise such option, this Agreement shall automatically terminate. The Hospital shall exercise such option 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 GKF and Hospital can agree upon the terms of the extension. 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 set forth in the first sentence of this Section 19 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. At the end of the term, this Agreement shall automatically terminate unless it is extended upon the written agreement of GKF and Hospital.
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.
20.1.3 Hospital fails to observe or perform any of its material 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’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.
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’s 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 GKF through the end of the Term discounted at the annual rate of nine percent (9%), which liquidated damages shall become immediately due and payable. Notwithstanding the foregoing, if the Event of Default occurs at any time after the fifth (5th) anniversary of the First Procedure Date, then, the liquidated damages shall be an amount equal to the present value of the unpaid estimated future rent payments to be made by Hospital to GKF for a two (2) year period commencing from and after the date on which the subject Event of Default occurred, or through the end of the Term, whichever time period is less, the sum of which payments shall be discounted at the annual rate of nine percent (9%) and shall be immediately due and payable in full. The unpaid estimated future lease 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 or the two (2) year measuring period, as the case may be. 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 accrued and unpaid 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.
21. Insurance .
21.1 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.
21.2 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, directors, agents, employees, contractors or physicians. 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 Three Million Dollars ($3,000,000.00) 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 to GKF no later than the First Procedure Date and as of each annual renewal of such policies during the Term. Subject to compliance with the requirements set forth in this section, the general liability and professional insurance may be insured through Hospital’s self-insurance program.
21.3 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 21.2 above and which names GKF as an additional insured party. 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.
21.4 During the Term, Hospital shall purchase and maintain all workers compensation insurance to the maximum extent required by applicable law.
22. Indemnification .
22.1 Hospital 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) the use and operation of the Equipment during the Term; (c) the design, construction and preparation of the Site by Hospital or the maintenance of the Site during the Term by Hospital; (d) Damages to the Equipment from the defective, faulty or improper design, construction or preparation of the Site or the installation and positioning of the Equipment; (e) Damages to the Equipment (including any Damages arising out of or related to violations by Hospital, its agents, officers, physicians, employees or contractors of the Service Agreement) caused by the negligent or wrongful acts or omissions of Hospital, its agents, officers, physicians, employees or contractors (in the event the Equipment is destroyed or rendered unusable, subject to Section 22.6 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); and (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. The Hospital shall not indemnify GKF for any costs, expenses, losses, etc. incurred by GKF arising out of the Hospital’s compliance with the Site Planning Criteria provided by GKF, instructions from GKF concerning the use of the Equipment or any instructions from GKF concerning the repair and maintenance of the Equipment.
22.2 Upon the occurrence of an event for which GKF is entitled to indemnification under this Agreement, GKF shall give written notice thereof to Hospital setting forth the type and amount of Damages. If the indemnity relates to a Third Party Claim (as defined in Section 22.3 below), the matter shall be subject to Section 22.3 below. If the indemnity relates to any Damages other than a Third Party Claim, not more than thirty (30) days after GKF’s written notice is given, Hospital either shall acknowledge in writing to GKF its obligation to indemnify hereunder and pay the Damages in full to GKF or dispute its obligation to indemnify in a written notice delivered to GKF. If Hospital disputes the obligation to indemnify, the parties shall meet and negotiate in good faith to mutually resolve the disagreement regarding indemnification.
22.3 GKF shall give written notice to Hospital as soon as reasonably possible after it has knowledge of any third party claim or legal proceedings (“Third Party Claim”) for which GKF is entitled to indemnification under this Section 22. Hospital shall (a) immediately assume, at its sole cost and expense, the defense of the Third Party Claim with legal counsel approved by GKF (which approval will not be unreasonably withheld, delayed or conditioned), and (b) as soon as reasonably possible after GKF’s written notice is given to Hospital, acknowledge in writing to GKF its obligation to indemnify GKF in accordance with the terms of this Agreement. If Hospital fails to assume the defense of a Third Party Claim or fails to timely acknowledge in writing its obligation to indemnify GKF, GKF may assume the defense of the Third Party Claim in the manner described in Section 22.4 below. GKF shall cooperate with Hospital in the defense of any Third Party Claim. Any settlement or compromise of a Third Party Claim to which GKF is a party shall be subject to the express written approval of GKF, which approval shall not be unreasonably withheld, delayed or conditioned as long as an unconditional term of the settlement or compromise is the full and absolute release of GKF from all Damages arising out of the Third Party Claim. GKF, 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 GKF.
22.4 If Hospital fails to promptly assume the defense of any Third Party Claim, GKF may assume the defense of the Third Party Claim with legal counsel selected by GKF, all at Hospital’s cost and expense. The defense of an action by GKF under this Section 22.4 shall not impair, limit or otherwise restrict Hospital’s indemnification obligations arising under this Section 22 or GKF’s right to enforce such obligations.
22.5 The indemnity obligations under this Section 22 shall survive the termination of this Lease with respect to events occurring during or relating to the Term.
22.6 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.
22.7 Hospital and GKF each hereby covenants and agrees that it will defend, indemnify and hold the other party and their respective officers, directors, members, employees and agents at all times harmless from and against any loss, damage and expense (including reasonable attorneys’ fees and other costs of defense) caused by or arising out of: (i) any liability or obligation related to the business of the indemnifying party prior to the date hereof and the commencement of the Program; (ii) any obligation or liability arising from services provided under this Agreement or in connection with the Program by the indemnifying party to the extent any such liability or obligation directly results from the negligence or intentional misconduct of the indemnifying party; or (iii) any obligation or liability resulting from a breach of any provision of this Agreement by the indemnifying party. The obligations of the parties under this Section survive the expiration or earlier termination of this Agreement.
22.8 Any party that intends to enforce an indemnity obligation under this Agreement shall give the indemnifying party written notice of any claim promptly after such claim is made, but the failure to give such notice shall not constitute a waiver or release of the indemnifying party and shall not affect the rights of the indemnified party to recover under this indemnity, except to the extent the indemnified party is materially prejudiced thereby. In connection with any claim giving rise to indemnity under this Section 22 resulting from or arising out of any claim or legal proceeding by a person who is not a party to this Agreement, the indemnifying party, at its sole cost and expense, may, upon written notice to the indemnified party, assume control of the defense of such claim or legal proceeding, to the extent that the indemnifying party admits in writing its indemnification liability to the indemnified party with respect to all material elements thereof. If the indemnifying party assumes the defense of any such claim or legal proceeding, the obligations of the indemnifying party hereunder as to such claim or legal proceeding shall be to take all steps necessary in the defense or settlement thereof and to hold the indemnified party harmless from and against any losses, damages, expenses or liability caused by or arising out of any settlement approved by the indemnifying party and the indemnified party or any judgment in connection with such claim or legal proceeding. Each indemnified party shall cooperate with the indemnifying party in the defense of any such action, the defense of which is assumed by the indemnifying party. Except with the consent of the indemnified party, which consent may be withheld at the indemnified party’s sole discretion, the indemnifying party shall not consent to any settlement or the entry of any judgment arising from any such claim or legal proceeding which, in each case, does not include as an unconditional term thereof the delivery by the claimant or the plaintiff to the indemnified party of a release from all liability in respect thereof. If the indemnifying party does not assume the defense of any claim or litigation, any indemnified party may defend against such claim or litigation in such manner as it may deem appropriate, including but not limited to settling such claim or litigation, after giving notice of the same to the indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnifying party will, promptly after any of the same is incurred, reimburse the indemnified party in accordance with the provisions hereof for all damages, losses, liabilities, costs and expenses incurred by the indemnified party.
23. Miscellaneous .
23.1 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. 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.
23.2 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.
23.3 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.
23.4 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.
23.5 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.
23.6 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.
23.7 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.
23.8 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.
23.9 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 York applicable to agreements made and to be performed in that State. The venue shall be in New York Courts in Westchester County without regard to conflict of law rules.
23.10 Exhibits . All exhibits attached hereto and referred to in this Agreement are hereby incorporated by reference herein as though fully set forth at length.
23.11 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.
23.12 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.
23.13 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.
23.14 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), (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: | Craig K. Tagawa |
Chief Executive Officer | |
GK Financing, LLC | |
Two Embarcadero Hospital, | |
Suite 2370 San Francisco, CA 94111 | |
To Hospital: | Warren Geller Administration |
Northern Westchester | |
Hospital Center 400 | |
East Main Street | |
Mt. Kisco, NY 10549 |
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.
23.15 Special Provisions Respecting Medicare and Medicaid Patients
23.15.1 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.
23.15.2 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 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.
23.16 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.
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/ Craig K. Tagawa | |
Craig K. Tagawa, | |
Chief Executive Officer | |
“Hospital” | Northern Westchester Hospital Center, |
By: /s/ Joel Seligman | |
Joel Seligman | |
President & CEO |
Exhibit 8
As rent for the lease of the Equipment to Hospital pursuant to this Agreement, Hospital shall pay to GKF the sum of $8,500 for each Gamma Knife Procedure one (1) through and including Procedure one hundred (100) and Seven thousand seven hundred fifty dollars ($7,750.00) for each procedure one hundred one (101) through and including one hundred fifty (150) and Seven thousand dollars ($7,000.00) for each Procedure greater the one hundred fifty (150) preformed by Hospital or its representatives or affiliates. The calculation for the number of Procedures will run in twelve (12) month cycles starting with the First Procedure Date. Each twelve-month period following the First Procedure Date will begin calculating Procedures from zero (0).
“GKF” | GK Financing, LLC , |
a California limited liability company | |
By: /s/ Craig K. Tagawa | |
Craig K. Tagawa, | |
Chief Executive Officer | |
“Hospital” | Northern Westchester Hospital Center, |
By: /s/ Joel Seligman | |
Joel Seligman | |
President & CEO |
HIPAA BUSINESS ASSOCIATE ADDENDUM
This Addendum, dated as of March 21, 2003 (“Addendum”), supplements and is made a part of the Services Agreement (as defined below) by and between Northern Westchester Hospital Center (“Covered Entity”) and GK Financing, LLC (“Business Associate”).
WHEREAS, Covered Entity and Business Associate are parties to the Service Agreement pursuant to which Business Associate provides certain services to Covered Entity. In connection with Business Associate’s services, Business Associate creates or receives Protected Health Information from or on behalf of Covered Entity, which information is subject to protection under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”) and related regulations promulgated by the Secretary (“HIPAA Regulations”).
WHEREAS, in light of the foregoing and the requirements of the HIPAA Regulations, Business Associate and Covered Entity agree to be bound by the following terms and conditions:
1. | Definitions . |
1. General . Terms used, but not otherwise defined, in this Addendum shall have the same meaning as those terms in the Privacy Rule.
2. Specific .
a. | Individual . “Individual” shall have the same meaning as the term “individual” in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502(g). |
b. | Privacy Rule . “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E. |
c. | Protected Health Information . “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity. |
d. | Required By Law . “Required by Law “shall have the same meaning as the term “required by law” in 45 CFR 164.501. |
e. | Secretary . “Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee. |
f. | Services Agreement . “Services Agreement” shall mean any present or future agreements, either written or oral, between Covered Entity and Business Associate under which Business Associate provides services to Covered Entity which involve the use or disclosure of Protected Health Information. |
2. | Obligations and Activities of Business Associate . |
a. | Use and Disclosure . Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by the Services Agreement or as Required By Law. |
b. | Appropriate Safeguards . Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by the Services Agreement. Without limiting the generality of the foregoing, Business Associate agrees to protect the integrity and confidentiality of any Protected Health Information it electronically exchanges with Covered Entity. |
c. | Mitigation . Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Addendum. |
d. | Reporting . Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by the Services Agreement of which it becomes aware. |
e. | Agents . Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this Addendum to Business Associate with respect to such information. |
f. | Access to Designated Record Sets . To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to provide access, at the request of Covered Entity, and in the time and manner designated by the Covered Entity, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR 164.524. |
g. | Amendments to Designated Record Sets . To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR 164.526 at the request of Covered Entity or an Individual, and in the time and manner designated by the Covered Entity. |
h. | Access to Books and Records . Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, in a time and manner designated by the Covered Entity or designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule. |
i. | Accountings . Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528. |
j. | Requests for Accountings . Business Associate agrees to provide to Covered Entity or an Individual, in the time and manner designated by the Covered Entity, information collected in accordance with Section 2.i. of this Addendum, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528. |
3. | Permitted Uses and Disclosures by Business Associate . |
a. | Services Agreement . Except as otherwise limited in this Addendum, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Services Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity. |
b. | Use for Administration of Business Associate . Except as otherwise limited in this Addendum, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate. |
c. | Disclosure for Administration of Business Associate . Except as otherwise limited in this Addendum, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that disclosures are Required by Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. |
4. | Permissible Requests by Covered Entity . Except as set forth in Section 3 of this Addendum, Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. |
5. | Miscellaneous . |
a. | Regulatory References . A reference in this Addendum to a section in the Privacy Rule means the section as in effect or as amended. |
b. | Amendment . The Parties agree to take such action as is necessary to amend the Services Agreement from time to time as is necessary for Covered Entity to comply with the requirements of the Privacy Rule and HIPAA. |
c. | Survival . The respective rights and obligations of Business Associate under Section 5.c. of this Addendum shall survive the termination of the Services Agreement. |
d. | Interpretation . Any ambiguity in this Addendum shall be resolved to permit Covered Entity to comply with the Privacy Rule. |
e. | Indemnity . Business Associate agrees to indemnify, defend and hold harmless Covered Entity and its employees, directors/trustees, members, representatives and agents (collectively, the “Indemnitees”) from and against any and all claims (whether in law or in equity), obligations, actions, causes of action, suits, debts, judgments, losses, fines, penalties, damages, expenses (including attorney’s fees), liabilities, lawsuits or costs incurred by the Indemnities which arise or result from a breach of the terms and conditions of this Agreement by Business Associate or its employees or agents. |
f. | Miscellaneous . The terms of this Addendum are hereby incorporated into the Services Agreement. Except as otherwise set forth in Section 6.d. of this Addendum, in the event of a conflict between the terms of this Addendum and the terms of the Services Agreement, the terms of this Addendum shall prevail. The terms of the Agreement which are not modified by this Addendum shall remain in full force and effect in accordance with the terms thereof. The Services Agreement together with this Addendum constitutes the entire agreement between the parties with respect to the subject matter contained herein. |
IN WITNESS WHEREOF , the parties have executed this Addendum as of the date set forth above.
NORTHERN WESTCHESTER
HOSPITAL CENTER |
GK FINANCING,
LLC |
By: | /s/ Joel Seligman | By: | /s/ Craig K. Tagawa | |
Name: | Joel Seligman | Name: | Craig K. Tagawa | |
Title: | President & CEO | Title: | CEO |
Exhibit 10.15
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT (“Agreement”) is made and entered into on May 28, 2004, by and between GK FINANCING, LLC, a California limited liability company (“GKF”), and Mercy Health Center, an Oklahoma not for profit corporation (“Hospital”), with reference to the following facts:
RECITALS
WHEREAS, Hospital wants to lease a Leksell Stereotactic Gamma Unit, model C with Automatic Positioning System, manufactured by Elekta Instruments, Inc., as specified in Exhibit A of the LGK Agreement (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.
AGREEMENT
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 latest approved Gamma Knife technology available as of the date of this Agreement (i.e., model C with Automatic Positioning System), including all standard 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 A. 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 Gamma Knife procedure (the “First Procedure Date”) at the Site. Hospital’s obligation to make the 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 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 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 reimburse Hospital for its direct costs to obtain a User License and any other licenses, permits, approvals, consents and authorizations required by this Section 4 upon presentation of invoices. In the event Hospital’s application to obtain a User License and any other licenses, permits, approvals, consents and authorizations required to operate the Equipment is denied after Hospital has used its best efforts, this Agreement shall automatically terminate and all parties shall be released from the further performance of any obligations or duties arising under this Agreement. Costs under this Section 4 shall be defined as “Startup Costs”.
5. Delivery of Equipment; Site .
5.1 GKF shall coordinate with Elekta and Hospital to have the Equipment delivered to Hospital at (the “Site”) on or prior to the delivery date agreed upon by Hospital and Elekta in the LGK Agreement. GKF makes no representations or warranties concerning delivery of the Equipment to the Site or the actual date thereof.
5.2 Subject to Section 6 below, Hospital at its cost and expense, shall provide a safe, convenient Site for the Equipment. The location of the Site shall be subject to the prior approval of GKF.
6. Site Preparation and Installation of Equipment .
6.1 GKF, at its cost and expense, shall prepare all plans and specifications required to prepare, construct and improve the Site for the installation, use and operation of the Equipment during the Term. The plans and specifications (i) shall be approved by Hospital, which approval shall not be unreasonably withheld or delayed; (ii) shall comply in all respects with the Site Planning Criteria attached as Exhibit E to the LGK Agreement (collectively the “Site Planning Criteria”) ; and (iii) to the extent required by applicable law, shall be submitted to all state and federal agencies for their review and approval. GKF, at its cost and expense, shall obtain all permits, certifications, approvals or authorizations required by applicable federal, state or local laws, rules or regulations necessary to prepare, construct and improve the Site as provided above.
6.2 GKF, at its cost and expense, 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. GKF shall be responsible for the shipment, storage, placement and removal of all Cobalt and depleted Cobalt in accordance with all State and Federal regulations. Any depleted Cobalt supply shall be properly disposed of by GKF at such time as GKF shall deem necessary, in GKF’s sole and absolute judgment.
6.3 In addition to construction and improvement of the Site, GKF, at its cost and expense, 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 During the Term, GKF, at its cost and expense, shall maintain the Site in a good working order, condition and repair, reasonable wear and tear excepted.
7. Marketing Support . Not less than ninety (90) days prior to the First Procedure Date and the commencement of each succeeding twelve (12) month period during the Term, GKF and Hospital shall jointly develop an annual marketing plan, budget and timeline, which shall be implemented by Hospital with the support of GKF, based on the approved budget and timeline. Hospital’s approval of such plan, budget and timeline shall not be unreasonably withheld or delayed. If Hospital has not approved or disapproved the same within thirty (30) days following its receipt, Hospital shall be deemed to have approved the same. GKF shall be solely responsible for any out-of-pocket marketing expenses paid to unrelated third parties that are included in the marketing plan budget. Any marketing efforts conducted independently by Hospital shall be at Hospital’s expense, and subject to coordination with GKF. Hospital’s approval of such plan, budget and timeline shall not unreasonably withheld or delayed.
8. Lease Payments .
8.1 In consideration for and as compensation to GKF for (i) the lease of the Equipment by GKF to Hospital pursuant to this Agreement; (ii) payment of Startup Costs; (iii) the preparation by GKF of all plans and specifications required to prepare, construct and improve the Site for the installation, use and operation of the Equipment; (iv) the preparation, construction and improvement of the Site as necessary for the installation, use and operation of the Equipment; (v) the installation by GKF of the Equipment at the Site; (vi) the marketing of the services to be provided using the Equipment; (vii) the cost of the individual referenced in Section 11.3 below; and (viii) the maintenance by GKF of the Site in a good working order, condition and repair, on a monthly basis, Hospital shall pay the “Lease Payment” to GKF for each “Procedure” that is performed on any and all patients admitted to Hospital, on an inpatient or outpatient basis, irrespective of whether (a) the Procedure is performed on the Equipment or using any other equipment or devices; or (b) the Procedure is performed by Hospital, its representatives or affiliates or by any other person or entity.
(1) The “Lease Payment” shall be equal to (a) eighty percent (80%) of the “Technical Component Collections” relating to each Procedure, less (b) Hospital’s aggregate “Additional Cost Component,” if any, relating to those Procedures performed using the Equipment during the corresponding month.
(2) “Technical Component Collections” means (a) the total amount actually collected by Hospital or its representatives or affiliates during each month from any and all payor sources, including, without limitation, patients, insurance companies, state or federal government programs or any other third party payors, as reimbursement for the technical component of each Procedure performed on the Equipment or using any other equipment or devices, plus (b) any and all other amounts actually collected by Hospital or its representatives or affiliates during such month from any and all payor sources, including, without limitation, patients, insurance companies, state or federal government programs or any other third party payors, which amounts are related to “Extended Inpatient Days” (as defined below) following a Procedure that is performed using the Equipment or using any other equipment or devices, including, without limitation, any outlier payments. The technical fees to be billed for Procedures performed utilizing the Equipment during the Term of this Agreement shall be an amount which is economically justifiable based upon GKF’s direct operating expenses and its total project costs, together with a return thereon. Hospital shall consult and mutually agree with GKF from time to time regarding the amount of the technical fees to be billed by Hospital for Procedures that are performed utilizing the Equipment and any revisions thereto. Subject to compliance with the standard described in the preceding sentence, Hospital and GKF shall mutually agree on the setting or revision of the amount of the technical fees on no less than an annual basis, and the acceptance of the technical fee component amounts with third party payors prior to their implementation.
(3) An Additional Cost Component shall apply and be calculated if (a) unexpected complications arise ( e.g. , stroke, heart attack) during the performance of a Procedure using the Equipment such that the patient remains hospitalized for Extended Inpatient Days; and (b) the Extended Inpatient Days and the Procedure are included as part of the same reimbursement claim. Where applicable, the “Additional Cost Component” relating to a Procedure utilizing the Equipment shall be equal to (i) the number of covered (by third party payor) Extended Inpatient Days for that Procedure, multiplied by (ii) the “Additional Cost Per Diem.” Notwithstanding anything to the contrary contained herein, there shall be no deduction from the Lease Payment for any Additional Cost Component incurred where the Procedure is performed using any equipment or devices other than the Equipment.
(4) The “Additional Cost Per Diem” shall be equal to the quotient of (i) fifty percent (50%) of the Technical Component Collections from the subject Procedure performed on the Equipment that results in Extended Inpatient Days, divided by (ii) the then-current Medicare Geometric Mean Length of Stay for the Diagnostic Related Group (DRG) under which such discharge was billed (or could have been billed to Medicare), as such Geometric Mean Length of Stay is set forth in the Federal Register.
(5) “Procedure” shall mean any treatment, whether performed on an inpatient or outpatient basis, 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.
(6) “Extended Inpatient Days” shall mean the number of days after the date of Procedure during which the patient was properly classified as an inpatient, where all services performed during such period are included as part of the same reimbursement claim. The date of discharge shall not be included in the number of Extended Inpatient Days.
No Lease Payment for any Procedure shall be payable by Hospital to GKF unless and until the Technical Component Collections corresponding to such Procedure have been actually collected by the Hospital and/or its representatives or affiliates. On a monthly basis and by the 25th of the following month, Hospital shall remit GKF’s aggregate Lease Payment for the preceding month .
It is acknowledged that the portion comprised of twenty percent (20%) of the Technical Component Collections relating to each Procedure that is not paid as part of the Lease Payment is a good faith estimate of the costs and expenses that will be incurred by Hospital during the corresponding month for services and personnel associated with the performance of Procedures, including, without limitation, costs and expenses for registered nurses, radiation technicians, recovery room, Hospital daily charges, ventilator daily charges, MRI procedures, CT procedures, angiography procedures, the physicist, laboratory services, pharmacy items, billing and collection services, other direct operating costs, and physical space. Such costs and expenses shall not include (i) Lease Payments, (ii) physician and other professional fees, and/or (iii) direct or indirect administrative overhead expenses. Such percentage shall not be increased, reduced or otherwise modified regardless of whether Hospital’s actual costs and expenses are higher or lower than the amount estimated.
Notwithstanding the foregoing, on each anniversary date of this Agreement, the parties shall meet to review the percentage of the Technical Component Collections that are payable as part of the Lease Payment, and any adjustments thereto must be mutually agreed upon by the parties in writing. Upon request by GKF, Hospital shall promptly furnish GKF with written documentation substantiating Hospital’s costs.
8.2 Within thirty (30) days following the end of each month (or portion thereof) during the term of this Agreement, Hospital shall pay the Lease Payments to GKF and shall concurrently inform GKF in writing as to the number of Procedures performed during that month utilizing the Equipment and any other equipment or devices. To facilitate Hospital’s billing and collection for Procedures performed, within three (3) business days after any Procedure using the Equipment is performed, the administrative support individual referenced in Section 11.3 below shall provide Hospital with written confirmation of the names of the patients treated. Hospital shall submit claims for reimbursement to the appropriate payors for each Procedure within thirty (30) days after the patient receiving the treatment is discharged. Such claims shall be submitted under Hospital’s provider numbers and license, Hospital shall also diligently follow up any unpaid or denied claims and re-bill and/or contest the same where appropriate so as to maximize Technical Component Collections. All or any portion of any Lease Payment which is not paid in full within sixty (60) days after its due date shall bear interest at the annual rate of five percent (5%) in excess of the Federal Reserve Discount Rate then in effect as published in the Wall Street Journal or similar publication (or the maximum monthly interest rate permitted to be charged by law between an unrelated, commercial borrower and lender, if less) until the unpaid Lease Payment, together with all accrued interest thereon is paid in full. If GKF shall at any time accept a Lease 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.
8.3 Within thirty (30) days after the close of each month, Hospital shall provide GKF with a written report indicating the status of billings and collections for each Procedure performed during that month, including, without limitation, the amount of the claim submitted, the amount received or denied for each such procedure, and copies of the corresponding Explanation of Benefits (“EOB”). Upon request by GKF, Hospital shall furnish to GKF information regarding reimbursement rates from any or all payor sources for Procedures (applicable to Procedures performed either on an inpatient or outpatient basis). If such reimbursement rates should change at any time or from time to time after the date hereof, in each instance, Hospital shall provide written notice thereof to GKF within five (5) days of Hospital receiving notice thereof. Prior to entering into or renewing any third party payor contracts for the provision of Procedures utilizing the Equipment, Hospital shall consult with GKF regarding the terms and provisions thereof, including the technical component reimbursement rates. GKF shall maintain the confidentiality of all information provided to GKF by Hospital with regard to Procedure charges, billing and reimbursement rates.
8.4 The parties acknowledge that the Lease Payments payable to GKF and Hospital’s Cost Component reflect their respective fair market value and are not determined in a manner that takes into account the volume or the value of any referral or other business generated between the parties.
8.5 Within ten (10) days after Hospital’s receipt of written request from GKF, GKF shall have the right to audit Hospital’s books and records (including, without limitation, the books and records pertaining to any other Radiosurgery equipment and devices) during normal business hours to verify the Technical Component Collections and Hospital’s Cost Component, and Hospital shall provide GKF with access to such books and records.
8.6 New Technology . Notwithstanding anything to the contrary set forth in Section 8 of this Agreement, if, at any time during the term of this Agreement, Hospital purchases or leases “New Technology,” then, from and after the “New Technology Effective Date,” no Lease Payment shall be payable by Hospital to GKF for any Procedures performed using the New Technology; provided that Hospital shall continue to be responsible for making Lease Payments to GKF for all other Procedures performed on the Equipment or using any other equipment or devices as set forth in this Section 8. Hospital shall provide GKF with not less than one hundred and eighty (180) days prior written notice of Hospital’s intention to purchase or lease New Technology, which written notice shall include any and all documentation evidencing compliance with the definition of New Technology, and which documentation shall be subject to the prior written approval of GKF in its sole but reasonable judgment. As used herein:
(a) “New Technology” shall mean a treatment modality for performing Procedures which (a) uses medical technology not commercially available as of the date of this Agreement; (b) consists of a single device and not a combination of different types of equipment; and (c) has been documented in at least (3) articles published in peer-reviewed journals in the United States, using five-year minimum follow-up studies, to be more medically appropriate than the Equipment to perform Procedures in treating 65% or greater of the currently treatable Gamma Knife indications.
(b) “New Technology Effective Date” shall mean the later to occur of (a) the date that is seven (7) years after the First Procedure Date, or (b) the date on which the first clinical Procedure is performed using the New Technology on a patient admitted to Hospital on an inpatient or outpatient basis.
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, at GKF’s cost and expense. Hospital also shall promptly execute and deliver, or cause to be executed and delivered, to GKF any statement or instrument 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 At Hospital’s cost and expense, 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, and (c) give GKF immediate written notice of any matter described in clause (b).
10. Additional Covenants of Hospital . In addition to the other covenants of Hospital contained in this Agreement, Hospital shall, at its cost and expense:
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. Hospital shall be provided with six (6) one week Elekta Gamma Knife training sessions for the training of its two (2) Gamma Knife teams. GKF shall also be responsible for the reasonable travel related expenses for the physicians and/or physicists associated with the six (6) Gamma Knife training sessions.
10.2 Direct, supervise and administer the diagnosis, treatment and care of all patients who receive Gamma Knife procedures.
10.3 In consultation with GKF, provide reasonable and customary marketing support in terms of administrative and physician support for the Gamma Knife service to be operated by the Hospital.
10.4 Keep and maintain the Equipment and the Site fully protected, secure and free from unauthorized access or use by any person.
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 Ensure Hospital’s quite enjoyment and 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 or the Purchase Agreement.
11.3 GKF and Hospital shall mutually select an individual to be located at the Site to provide Gamma Knife administrative and marketing support services. The individual’s duties shall include but not be limited to scheduling Gamma Knife patients and coordinating professional and technical personnel and support services to perform said Gamma Knife treatment. This individual shall also verify patient insurance. The individual shall also assist with marketing activities on an as needed basis. This individual is provided by the Hospital and GKF shall reimburse Hospital for the cost of the individual and payment made by GKF to Hospital by the end of the following month. GKF and Hospital shall mutually agree on individual.
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 operating condition and repair, reasonable wear and tear excepted, (b) subject to Hospital’s compliance with its obligations under the LGK Agreement and under Sections 4, 5, 9, 10, 12, 13, and 16 hereunder, cause the equipment to be in compliance with all applicable state and federal regulations, and (c) maintain in full force and effect a Service Agreement with Elekta 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 22 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, employees, agents, contractors and physicians. 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, employees, agents, contractors (other than GKF and Elekta) and physicians, 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. Subject to Section 12.3 above, in the event GKF determines that the Equipment cannot be repaired, at the election of GKF in GKF’s sole and absolute discretion, (a) GKF, at its cost and expense, may 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) in such event, this Agreement shall continue in full force and effect as though such damage or destruction had not occurred. If GKF elects not to replace the Equipment, GKF shall provide written notice of such election to Hospital, and this Agreement shall terminate on the date that is ninety (90) days following the date of such notice. 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. 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 . 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. The parties agree that the necessity for the reloading of the cobalt-60 source, shall be discussed and mutually decided by GKF and Hospital. If GKF reloads the Equipment at its cost, the initial Term of the Agreement shall be extended for three (3) years from a duration of 10 to 13 years.
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 and Hospital shall execute such documentation as the Lender shall reasonably require in furtherance of this Section 14.
15. Equipment Operational Costs . GKF shall be responsible for all costs and expenses for the operation and use of the Equipment. Significant costs and expenses are enumerated in Exhibit 8.1. Between Hospital and GKF, Hospital shall be fully liable for all negligent, intentional or wrongful acts or omissions of Hospital, its officers, directors, employees and agents.
16. Taxes . GKF shall pay all sales or use taxes imposed or assessed in connection with the purchase of the Equipment and all personal property taxes imposed, levied or assessed on the ownership and possession of the Equipment during the Term. All other taxes, assessments, licenses or other charges imposed, levied or assessed on the Equipment during the Term shall be paid by Hospital before the same shall become delinquent, whether such taxes are assessed or would ordinarily be assessed against GKF or Hospital; provided, however, Hospital shall not be required to pay any federal, state or local income, franchise, corporation or excise taxes imposed upon GKF’s net income realized from the lease of the Equipment. In case of a failure by Hospital to pay any taxes, assessments, licenses or other charges when and as required under this Section, GKF may pay all or any part of such taxes, in which event the amount paid by GKF shall be immediately payable by Hospital to GKF 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 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.
17. No Warranties by GKF . Hospital warrants that as of the First Procedure Date, it shall have (a) thoroughly inspected the Equipment, (b) determined that 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’s intended purposes and is good working order, condition and repair. 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. GKF shall not be liable for any direct, indirect and consequential losses or damages suffered by Hospital or by any other person, and 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 injury to persons or property resulting from the failure of, defective or faulty design, operation, condition, suitability or use of the Equipment, or with the accuracy, completeness or suitability of the Site Planning Criteria, including GKF’s good faith compliance therewith. All warranty or other similar claims with respect to the Equipment or the Site Planning Criteria 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’s 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. GKF shall not be responsible for the operation of the Equipment. However, it shall be GKF’s responsibility that the Equipment be properly maintained.
18. Termination for Economic Justification .
18.1 If, following the initial twenty-four (24) 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 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 provision of Gamma Knife services 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.
18.2 Notwithstanding the provisions of Section 18.1, if at any time during the term of this Agreement, Hospital is suspended or terminated from participation in the Medicare program, GKF shall have the option to terminate this Agreement immediately by giving written notice thereof to Hospital.
18.3 As a result of any termination of this Agreement pursuant to this Section 18, GKF may enter upon the Site and remove the Equipment and any improvements made by GKF to the Site without liability of any kind or nature for so doing or GKF may demand that Hospital remove and return the Equipment and such improvements to GKF, all at GKF’s sole cost and expense. GKF shall restore the Site to a similar pre-deinstallation appearance and condition.
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 in writing as may be agreed upon by GKF and Hospital taking into account the use (e.g., number of Gamma Knife procedures, etc.) of the Equipment at the Site during the initial Term and other factors deemed relevant by the parties;
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 Lease 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 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.
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’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.
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 and any improvements made by GKF to the Site without liability of any kind or nature for so doing or GKF may demand that Hospital remove and return the Equipment and such improvements to GKF, all at Hospital’s sole cost and expense. GKF shall restore the Site to a similar predeinstallation appearance and condition.
20.2.2 Recover damages from Hospital as may be awarded by a court of competent jurisdiction for the loss of the bargain represented by this Agreement. For purposes of determining such damages, the parties agree that the following methodology shall be used: (a) the amount of such damages shall be equal to the present value of the unpaid estimated future Lease Payments to be made by Hospital to GKF through the end of the Term discounted at the rate of nine percent (9%) ; and (a) the unpaid estimated future Lease Payments shall be based on the historical trend of payments made by Hospital to GKF hereunder taking into account known factors which could impact the historical trend through the end of the Term. Hospital and GKF acknowledge that the methodology 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. GKF shall use reasonable commercial efforts to mitigate its damages by attempting to sell or lease the Equipment; provided that (i) GKF shall not be obligated to give preference to the sale or lease of the Equipment over the sale, lease or other disposition of similar equipment or improvements owned or leased by GKF, (ii) GKF shall have no obligation to sell or lease any improvements made by GKF to the Site, and (iii) GKF’s inability in good faith to mitigate damages shall not limit or otherwise affect the foregoing methodology for determining damages as set forth in this Section.
20.2.3 Sell, dispose of, hold, use or lease the Equipment or any improvements made by GKF to the Site, 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 or improvements over the sale, lease or other disposition of similar Equipment or improvements 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 or improvements, to enforce the terms hereof or to recover damages for the breach hereof or to cancel this Agreement as to the Equipment.
In addition to the foregoing remedies, Hospital shall be liable to GKF for all 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 Lease Payments and other sums owing under this Agreement. 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. 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.
21. Events of Default by GKF and Remedies .
21.1 The occurrence of any one of the following shall constitute an Event of Default hereunder:
21.1.1 GKF shall fail to observe or perform any of its covenants, duties or obligations arising under this Agreement and such failure shall continue 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.
21.1.2 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.
21.1.3 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 involving GKF, Hospital may at its option do any or all of the following:
21.2.1 By written notice to GKF, immediately terminate this Agreement as to the Equipment and, in such event, GKF shall remove the Equipment, the Cobalt and any improvements made by GKF to the Site, at GKF’s sole cost and expense or, in the absence of removal by GKF within a reasonable period of time after a written request therefore, Hospital may remove the Equipment, the Cobalt and such improvements with all due care and store the same at GKF’s sole cost and expense.
21.2.2 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.
21.3 GKF shall in any event remain fully liable for reasonable damages as 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 (other than attorneys’ fees). However, GKF shall not in any manner be or become liable to Hospital for any consequential or incidental damages that may be suffered by Hospital which arise out of or result from the Event of Default.
21.4 Notwithstanding the occurrence of an Event of Default with respect to GKF (including any claim which would otherwise be in the nature of a set-off), Hospital shall fully perform and pay its obligations hereunder (including payment of all Lease Payments) without set-off or defense of any kind. Upon termination of this Agreement or the exercise of any other rights or remedies under this Agreement or applicable law following an Event of Default, Hospital shall, without further request or demand, pay to GKF all Lease Payments and other sums owing under this Agreement when and as due.
22. Removal of Equipment . Upon expiration of the Term, GKF, at its cost and expense, shall remove the Equipment from the Site not more than ninety (90) days following the last day of the Term; provided that all of GKF’s right, title and interest in and to the improvements made by GKF to the Site pursuant to Section 6 above shall thereupon transfer to Hospital.
23. Insurance .
23.1 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. 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.
23.2 During the Term, Hospital shall, at its cost and expense, purchase and maintain in effect general liability and professional liability insurance policies (or self-insurance coverage) 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, directors, agents, employees, contractors or physicians. The general liability and professional liability insurance policies shall provide coverage (or self-insurance 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 to GKF no later than the First Procedure Date and as of each annual renewal of such policies during the Term.
23.3 During the construction of the Site and prior to the First Procedure Date, GKF, 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 23.2 above and which names Hospital as an additional insured party. The policy to be maintained by GKF hereunder shall be evidenced by a certificate of insurance or other reasonable documentation which shall be delivered by GKF to Hospital prior to the commencement of any construction at the Site.
23.4 | During the Term, Hospital shall maintain all workers compensation insurance as required by applicable law. |
24. Indemnification
24.1 Hospital and GKF each hereby covenants and agrees that it will defend, indemnify and hold the other party and the other party’s officers, directors, members, employees and agents at all times harmless from and against any loss, damage, and expense (including reasonable attorneys’ fees and other costs of defense) caused by or arising out of: (i) any liability or obligation related to the business of the indemnifying party prior to the date hereof; (ii) any obligation or liability arising from services provided under this Agreement by the indemnifying party to the extent any such liability or obligation directly results from the negligence or intentional misconduct of the indemnifying party, it’s employees or agents; or (iii) any obligation or liability resulting from a breach of any provision of this Agreement by the indemnifying party, it’s employees or agents. The obligations of the parties under this Section shall survive the expiration or earlier termination of this Agreement.
24.2 Any party that intends to enforce an indemnity obligation shall give the indemnifying party notice of any claim as soon as possible, but the failure to give such notice shall not constitute a waiver or release of the indemnifying party and shall not affect the rights of the indemnified party to recover under this indemnity, except to the extent the indemnifying party is materially prejudiced thereby. In connection with any claim giving rise to indemnity under this Section resulting from or arising out of any claim or legal proceeding by a person who is not a party to this Agreement, the indemnifying party, at its sole cost and expense, may, upon written notice to the indemnified party, assume control of the defense of such claim or legal proceeding, to the extent that the indemnifying party admits in writing its indemnification liability to the indemnified party with respect to all material elements thereof. If the indemnifying party assumes the defense of any such claim or legal proceeding, the obligation of the indemnifying party hereunder as to such claim or legal proceeding shall be to take all steps necessary in the defense or settlement thereof and to hold the indemnified party harmless from and against any losses, damages, expenses or liability caused by or arising out of any settlement approved by the indemnifying party and the indemnified party or any judgment in connection with such claim or legal proceeding. Each indemnified party shall cooperate with the indemnifying party in the defense of any such action, the defense of which is assumed by the indemnifying party. Except with the consent of the indemnified party, which consent may be withheld at the indemnified party’s sole discretion, the indemnifying party shall not consent to any settlement or the entry of any judgment arising from any such claim or legal proceeding which, in each case, does not include as an unconditional term thereof the delivery by the claimant or the plaintiff to the indemnified party of a release from all liability in respect thereof. If the indemnifying party does not assume the defense of any claim or litigation, any indemnified party may defend against such claim or litigation in such manner as it may deem appropriate, including but not limited to settling such claim or litigation, after giving notice of the same to the indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnifying party will, promptly after any of the same is incurred, reimburse the indemnified party in accordance with the provisions hereof for all damages, losses, liabilities, costs and expenses incurred by the indemnified party.
24.3 The indemnity obligations under this Section shall survive the termination of this Agreement with respect to events occurring during or relating to the Term.
25. Miscellaneous .
25.1 Binding Effect . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign this Agreement nor any of its respective rights hereunder and Hospital shall not sublease the Equipment without the prior written consent of the other party, which consent shall not be unreasonably withheld. An assignment or sublease shall not relieve the assigning party or sublessor of any liability for performance of this Agreement during the remainder of the Term. Any purported assignment or sublease made without the other party’s prior written consent shall be null, void and of no force or effect.
25.2 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.
25.3 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.
25.4 Attorney’s Fees and Costs . In the event of any action, mediation or other proceedings between or among the parties hereto with respect to this Agreement, each party shall pay for their own attorneys’ fees and related costs and expenses, irrespective of which party is deemed to be the prevailing party.
25.5 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.
25.6 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.
25.7 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.
25.8 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.
25.9 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 Oklahoma applicable to agreements made and to be performed in that State.
25.10 Exhibits . All exhibits attached hereto and referred to in this Agreement are hereby incorporated by reference herein as though fully set forth at length.
25.11 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.
25.12 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.
25.13 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.
25.14 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), (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: | Craig K. Tagawa |
Chief Executive Officer | |
GK Financing, LLC | |
Four Embarcadero Center, Suite 3700 | |
San Francisco, CA 94111 | |
To Hospital: | Mark Nafziger |
Senior VP & CFO | |
Mercy Health Center | |
4120 W Memorial Road | |
Oklahoma City, OK 73120 |
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.
25.15 Special Provisions Respecting Medicare and Medicaid Patients
25.15.1 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.
25.15.2 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 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.
25.16 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.
25.17 Independent Contractor Status . With respect to the performance of the duties and obligations arising under this Agreement, nothing in this Agreement is intended nor shall be construed to create a partnership, an employer/employee relationship, a joint venture relationship, or a lease or landlord/tenant relationship between GKF and Hospital.
25.18 Mediation . Except as provided herein, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement may be commenced until the matter has been submitted for non-binding mediation to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), except that if JAMS is no longer in existence or is otherwise unable to appoint a neutral mediator, the parties shall submit the matter for non-binding mediation to the American Arbitration Association (“AAA”), subject to the provisions in this section. Either party may commence mediation by providing to the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with one another in selecting a mediator and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the parties so desire. The provisions of this Section may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom enforcement is ordered.
IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date first set forth above.
“GKF” | “Hospital” | |||
GK FINANCING, LLC, | MERCY HEALTH CENTER, | |||
a California limited liability company | an Oklahoma not for profit corporation | |||
By: | /s/ Craig K. Tagawa | By: | /s/ Mark Nafziger | |
Craig Tagawa | Mark Nafziger | |||
Chief Executive Officer | Senior VP & CFO |
Exhibit 10.15a
ADDENDUM ONE
TO EQUIPMENT LEASE AGREEMENT
This ADDENDUM ONE TO EQUIPMENT LEASE AGREEMENT (this “Addendum”) is dated effective as of December 23, 2011, between Mercy Health Center, an Oklahoma not for profit corporation (“Hospital”), and GK Financing, LLC, a California limited liability company (“GKF”).
Recitals :
WHEREAS, GKF and Hospital are parties to a certain Equipment Lease Agreement dated May 28, 2004 (the “Lease”), which provides in Section 13 thereof, that the parties shall mutually discuss and decide on the necessity for reloading of the Cobalt-60 source in the Equipment; and
WHEREAS, the parties desire to set forth herein their agreement regarding the reloading of the Equipment.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and agreements set forth herein, and for the other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement :
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Lease.
2. Cobalt Reload of the Equipment. The Equipment shall be reloaded with new cobalt-60 that meets the manufacturer’s radioactivity level specifications (the “Reload”), subject to the following terms and conditions:
a. Scheduling and Process for the Reload . The Reload shall be performed at the Site and shall include any required installation and rigging. Subject to scheduling availability, GKF shall use its commercially reasonable efforts to perform the Reload in the first quarter of 2012; provided that the Reload shall be performed only after all necessary and appropriate licenses, permits, approvals, consents and authorizations, including, without limitation, the proper handling of the cobalt-60 (collectively, the “Permits”), have been obtained by Hospital at Hospital’s sole cost and expense (other than any filing, registration or licensing fees which shall be paid 50% by GKF and 50% by Hospital). The timing and procedure for such Reload shall be as mutually agreed upon between the parties. Notwithstanding anything to the contrary contained in this Addendum, GKF makes no representation or warranty to Hospital concerning the Reload, and GKF shall have no obligation or liability to pay any damages to Hospital resulting therefrom, including, without limitation, any lost revenues or profits during the period of time that the Equipment is unavailable to perform procedures due to the Reload process.
b. Hospital Personnel and Services . Upon request and as required by GKF, Hospital, at Hospital’s cost and expense, shall provide GKF with Hospital personnel (including Hospital’s physicists) and services in connection with the Reload, among other things, to oversee, supervise and assist with construction and compliance with local, state and federal regulatory requirements and with nuclear regulatory compliance issues and the calibration of the Equipment.
c. Costs of Reload . The actual costs of the Reload paid or payable to third parties (which is estimated to be between $900,000 and $1,000,000) shall be shared equally between GKF and Hospital. Neither GKF nor Hospital shall be entitled to reimbursement for its own respective personnel costs, internal costs or overhead.
d. Extension of Term for Downtime . The Term of the Lease shall be extended for the period of time that the Equipment is unavailable to perform procedures due to the Reload (which is estimated to take approximately ______ (__) weeks for the Reload).
e. No Additional Responsibilities . It is understood by the parties that GKF is not responsible for any upgrades, hardware, cobalt reloading, software changes and/or other modifications to the Equipment, except as expressly set forth herein or otherwise agreed upon in writing by Hospital and GKF.
3. Captions. The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Addendum.
4. Full Force and Effect. Except as amended by this Addendum, all of the terms and provisions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum One effective as of the date first written above.
GKF: | Hospital: | ||
GK Financing, LLC | Mercy Health Center | ||
An Oklahoma Not for Profit Corporation | |||
By: | /s/ Ernest A. Bates | By: | /s/ Jim R. Gebhart |
Ernest A. Bates, M.D. | Name: | Jim R. Gebhart | |
Policy Committee Member | Title: | President |
Exhibit 10.17a
AMENDMENT TO EQUIPMENT LEASE AGREEMENT
This AMENDMENT TO EQUIPMENT LEASE AGREEMENT (this “Amendment”) is made and entered into effective as of the 3rd day of January, 2012, by and between GK FINANCING, LLC, a California limited liability company (“GKF”), and FORT SANDERS REGIONAL MEDICAL CENTER, a Tennessee not for profit corporation (“Medical Center”), with reference to the following facts:
RECITALS
WHEREAS, GKF and Medical Center have entered into a certain Equipment Lease Agreement dated May 1, 2010 (the “Agreement”); and
WHEREAS, the parties desire to amend the Agreement as set forth herein.
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:
AGREEMENT
1. Defined Terms . Unless otherwise defined herein, the capitalized terms used herein shall have the same meanings set forth in the Agreement.
2. Additional Covenants of Medical Center . The following sentence is hereby added to Section 10.1 of the Agreement (Additional Covenants of Medical Center):
"In recognition of (i) the turnover and/or replacement from time to time of physician and non-physician personnel from the Gamma Knife teams, and (ii) the importance of proper training of Gamma Knife team members, the parties agree that actual tuition costs incurred (but excluding travel costs for physician personnel and entertainment costs for physician and non-physician personnel) related to personnel training shall be reimbursed by GKF to the appropriate physician and non-physician personnel (and not to Medical Center), subject to production of receipts and any reasonably requested documentation, and such costs shall not be deemed to be a Medical Center Direct Operating Expense."
3. Miscellaneous . This Amendment may be executed in separate counterparts and may be delivered by fax or electronic mail, each of which when so executed and delivered shall be an original, but all of which counterparts shall together constitute the same instrument. The captions and paragraph headings used herein are for convenience only and shall not be used in construing or interpreting this Amendment. Except as amended by this Amendment, all of the terms and provisions of the Agreement shall remain in full force and effect. To the extent any of the terms of the Agreement conflict with the terms of this Amendment, the terms and provisions of this Amendment shall prevail and control.
IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the Effective Date.
GKF : | Medical Center : | ||
GK FINANCING, LLC | FORT SANDERS REGIONAL MEDICAL CENTER | ||
By: | /s/ Ernest A. Bates | By: | /s/ Keith N. Altshuler |
Ernest A. Bates, M.D. | Keith N. Altshuler, FACHE | ||
Policy Committee Member | President & Chief Administrative Officer |
Exhibit 10.26
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“ Agreement ”) is made as of « Date », by and between American Shared Hospital Services, a California corporation (the “ Company ”), and « Indemnitee » (“ Indemnitee ”).
WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the corporation.
WHEREAS, the Board of Directors of the Company (the “ Board ”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself.
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future.
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified.
WHEREAS, this Agreement is a supplement to and in furtherance of the Articles of Incorporation and Amended and Restated Bylaws of the Company and any resolutions adopted pursuant thereto and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
WHEREAS, Section 317 of the California Corporation Code (“ CCC ”), expressly recognizes that a corporation has the power to indemnify directors, officers, employees or other agents of the corporation and “shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, to the extent the additional rights to indemnification are authorized in the articles of the corporation”. Thus, Section 317 does not by itself limit the extent to which the Company may indemnify persons serving as its officers and directors;
WHEREAS, Section 2 of the Company’s Articles of Incorporation permits indemnification of directors and officers;
WHEREAS, Article IX of the Company’s Amended and Restated Bylaws empowers the Company to indemnify the Company’s directors to the maximum extent and in the manner permitted by the CCC;
WHEREAS, this Agreement is being entered into pursuant to the foregoing provisions of Section 317 of the CCC and the Amended and Restated Bylaws of the Company;
WHEREAS, Indemnitee does not regard the protection available under the Company’s Articles of Incorporation and Amended and Restated Bylaws and insurance as adequate in the present circumstances, and may not be willing to serve as an officer or director of the Company without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he be so indemnified.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification .
(a) Third Party Proceedings . The Company shall indemnify and hold harmless Indemnitee if Indemnitee is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company, by reason of any action or inaction on the part of Indemnitee while an officer or director or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with such action, suit or proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the Right of the Company . The Company shall indemnify and hold harmless Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company, by reason of any action or inaction on the part of Indemnitee while an officer or director or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) and, to the fullest extent permitted by law, amounts paid in settlement, in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and its shareholders, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company in the performance of Indemnitee’s duty to the Company and its shareholders unless and only to the extent that the court in which such action or suit is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine.
(c) Mandatory Payment of Expenses . To the extent that Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this Section 1 or the defense of any claim, issue or matter therein, Indemnitee shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by Indemnitee in connection therewith.
(d) Witness Expenses . Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her corporate status, a witness in any suit or proceeding to which Indemnitee is not a party, he shall be indemnified against all expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection therewith.
2. Advancement of Expenses; Indemnification Procedure .
(a) Advancement of Expenses . Expenses incurred in defending a civil, criminal, administrative or investigative action, suit or proceeding by Indemnitee shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of Indemnitee to repay such amount if it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Company as authorized by this Agreement (the “ Undertaking ”); provided , however , that the Company shall not be required to advance expenses to Indemnitee in connection with any proceeding (or part thereof) initiated by Indemnitee unless the proceeding was authorized in advance by the Board. Any advances the Company is obligated to make hereunder, subject to the foregoing proviso, shall be paid by the Company to Indemnitee within twenty (20) days following receipt of the Undertaking. Indemnitee shall be entitled to receive interim payments of expenses pursuant to this Section 2(a) unless and until such defense may be finally adjudicated by court order or judgment from which no further right of appeal exists. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay such amounts and without regard to Indemnitee’s ultimate entitlement to indemnification under other provisions of this Agreement. Advances shall include any and all reasonable expenses incurred pursuing an action to enforce this right of advancement, including expense incurred preparing and forwarding statements to the Company to support the advances claimed.
(b) Notice/Cooperation by Indemnitee . Indemnitee shall, as a condition precedent to his or her right to be indemnified under this Agreement, give the Company notice in writing as soon as practicable of any claim made against Indemnitee for which indemnification will or could be sought under this Agreement. Notice to the Company shall be directed to the Chief Executive Officer of the Company at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to Indemnitee). Notice shall be deemed received three (3) business days after the date postmarked if sent by domestic certified or registered mail, properly addressed, otherwise notice shall be deemed received when such notice shall actually be received by the Company. In addition, Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power.
(c) Procedure . Any indemnification and advances provided for in Section 1 shall be made no later than forty-five (45) days after receipt of the written request of Indemnitee. If a claim under this Agreement, under any statute, or under any provision of the Company’s Articles of Incorporation or Amended and Restated Bylaws providing for indemnification, is not paid in full by the Company within forty-five (45) days after a written request for payment thereof has first been received by the Company, Indemnitee may, but need not, at any time thereafter bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 13 of this Agreement, Indemnitee shall also be entitled to be paid for the expenses (including attorneys’ fees) of bringing such action. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any action, suit or proceeding in advance of its final disposition) that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. Indemnitee shall be entitled to receive interim payments of expenses pursuant to Section 2(a) unless and until such defense may be finally adjudicated by court order or judgment from which no further right of appeal exists.
(d) Presumptions and Burdens of Proof . (i) It is the parties’ intention that if the Company contests Indemnitee’s right to indemnification, the question of Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure of the Company (including its Board, any committee or subgroup of the Board, independent legal counsel, or its shareholders) to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual determination by the Company (including its Board, any committee or subgroup of the Board, independent legal counsel, or its shareholders) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the applicable standard of conduct. In making any determination with respect to entitlement to indemnification hereunder, the court shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 2(b) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.
(ii) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is in good faith reliance on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected by the Company. The provisions of this 2(d)(ii)shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
(iii) The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
(e) Notice to Insurers . If, at the time of the receipt of a notice of a claim pursuant to Section 2(b) hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(f) Defense of Claims . The Company shall be entitled to assume the defense of such proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company shall not settle any action, claim, suit or proceeding (in whole or in part) which would impose any expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle any action, claim, suit or proceeding (in whole or in part) which would impose any expense, judgment, fine, penalty or limitation on the Company without the Company’s prior written consent, such consent not to be unreasonably withheld.
3. Additional Indemnification Rights; Nonexclusivity .
(a) Scope . Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by the other provisions of this Agreement, the Company’s Articles of Incorporation, the Company’s Amended and Restated Bylaws or by statute. In the event of any change in any applicable law, statute or rule which narrows the right of a California corporation to indemnify a member of its board of directors or an officer, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights and obligations hereunder.
(b) Nonexclusivity . The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s Articles of Incorporation, its Amended and Restated Bylaws, any agreement, any vote of shareholders or disinterested Directors, the CCC, or otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity while holding such office. The indemnification provided under this Agreement shall continue as to Indemnitee for any action taken or not taken while serving in an indemnified capacity even though he or she may have ceased to serve in such capacity at the time of any action, suit or other covered proceeding.
4. Partial Indemnification . If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the expenses, judgments, fines or penalties actually or reasonably incurred by him or her in the investigation, defense, appeal or settlement of any civil or criminal action, suit or proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines or penalties to which Indemnitee is entitled.
5. Mutual Acknowledgment . Both the Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Company from indemnifying its directors and officers under this Agreement or otherwise. Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s right under public policy to indemnify Indemnitee.
6. Officer and Director Liability Insurance . The Company shall obtain and maintain a policy or policies of insurance with reputable insurance companies providing liability insurance for directors and officers of the Company in their capacities as such (and for any capacity in which any director or officer of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity. In all policies of director and officer liability insurance, Indemnitee shall be named as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s directors, if Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a director of the Company, but is an officer; or of the Company’s key employees, if Indemnitee is not an officer or director, but is a key employee. Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Company determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided or if the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit. However, the Company’s decision whether or not to adopt and maintain such insurance shall not affect in any way its obligations to indemnify its officers and directors under this Agreement or otherwise.
7. Severability . Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. The provisions of this Agreement shall be severable as provided in this Section 7. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.
8. Exceptions . Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee . To indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law, but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors has approved the initiation or bringing of such suit.
(b) Lack of Good Faith . To indemnify Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous.
(c) Insured Claims . To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of officers’ and directors’ liability insurance maintained by the Company.
(d) Claims Under Section 16(b) . To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
(e) Restatement . To indemnify Indemnitee for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”).
(f) Violation of Sarbanes-Oxley Act . To indemnify Indemnitee for payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act).
9. Construction of Certain Phrases .
(a) For purposes of this Agreement, references to the “Company” shall include any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that if Indemnitee is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to “other enterprises,” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
10. Effectiveness . This Agreement shall be deemed to be effective as of the date when this Agreement has been signed by the Indemnitee and an authorized officer or director of the Company.
11. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
12. Successors and Assigns . This Agreement shall be binding upon the Company and its successors and assigns, and shall inure to the benefit of Indemnitee and Indemnitee’s estate, heirs, legal representatives and assigns.
13. Attorney’s Fees . In the event that any action is instituted by Indemnitee under this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be paid all court costs and expenses, including reasonable attorneys, fees, incurred by Indemnitee with respect to such action, unless as a part of such action, the court of competent jurisdiction determines that each of the material assertions made by Indemnitee as a basis for such action were not made in good faith or were frivolous. In the event of an action instituted by or in the name of the Company under this Agreement or to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all court costs and expenses, including attorneys’ fees, incurred by Indemnitee in defense of such action (including with respect to Indemnitee’s counterclaims and cross-claims made in such action), unless as a part of such action the court determines that each of Indemnitee’s material defenses to such action were made in bad faith or were frivolous.
14. Notice . All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted for by the party addressee, on the date of such receipt, or (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third business day after the date postmarked. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by written notice.
15. Choice of Law . This Agreement shall be governed by and its provisions construed in accordance with the laws of the State of California.
16. Modification . This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. All prior negotiations, agreements and understandings between the parties with respect thereto are superseded hereby. This Agreement may not be modified or amended except by an instrument in writing signed by or on behalf of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
AMERICAN SHARED HOSPITAL SERVICES | ||
By: | ||
Title: | ||
(address) |
AGREED TO AND ACCEPTED: | |
INDEMNITEE | |
«Indemnitee» | |
(address) |
Exhibit 21.1
The subsidiaries of American Shared Hospital Services are :
MedLeader.com, Inc.
A California corporation
OR21, Inc.
A California corporation
OR21, LLC
A Washington limited liability company
Long Beach Equipment, LLC
A Delaware limited liability company
American Shared Radiosurgery Services
A California corporation
Subsidiaries of American Shared Radiosurgery Services
GK Financing, LLC
A California limited liability company
Subsidiaries of GK Financing, LLC
Albuquerque GK Equipment, LLC
A Delaware limited liability company
Jacksonville GK Equipment, LLC
A Delaware limited liability company
Instituto de Gamma Knife del Pacifico S.A.C.
A Peruvian company
GK Financing U.K. LTD
An England and Wales private limited company
EWRS, LLC
A Delaware limited liability company
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements (Form S-3 No. 333-204593 and Form S-8 No. 333-170650, No. 333-139446, No. 333-81138, No. 333-73172, and No. 333-08009) of our report dated March 29, 2016, relating to the consolidated financial statements appearing in the Annual Report on Form 10-K of American Shared Hospital Services for the year ended December 31, 2015.
/s/ Moss Adams LLP
San Francisco, California
March 29, 2016
Exhibit 31.1
CERTIFICATION
I, Ernest A. Bates, M.D., as chief executive officer of American Shared Hospital Services, certify that:
1. I have reviewed this annual report on Form 10-K for the period ended December 31, 2015 of American Shared Hospital Services;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any changes in the registrant’s internal control over financial reporting that occurred during registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting .
March 29, 2016 | |
/s/ Ernest A. Bates, M.D. | |
Ernest A. Bates, M.D. | |
Chief Executive Officer |
Exhibit 31.2
CERTIFICATION
I, Craig K. Tagawa, as chief financial officer of American Shared Hospital Services, certify that:
1. I have reviewed this annual report on Form 10-K for the period ended December 31, 2015 of American Shared Hospital Services;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any changes in the registrant’s internal control over financial reporting that occurred during registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting
March 29, 2016 | |
/s/ Craig K. Tagawa | |
Craig K. Tagawa | |
Chief Financial Officer |
Exhibit 32.1
March 29, 2016
Securities and Exchange Commission
450 Fifth Street, N.W
Washington, D.C. 20549
Ladies and Gentlemen:
The certification set forth below is being submitted to the Securities and Exchange Commission solely for the purpose of complying with Rule 13a-14(b) and Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code. This certification is not to be deemed filed pursuant to the Exchange Act and does not constitute a part of the Annual Report on Form 10-K (the “Report”) accompanying this letter.
Ernest A. Bates, M.D., the Chief Executive Officer and Craig K. Tagawa, the Chief Financial Officer of American Shared Hospital Services, each certifies that, to the best of his knowledge:
1. | the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of American Shared Hospital Services. |
/s/ Ernest A. Bates, M.D. | |
Ernest A. Bates, M.D. | |
Chief Executive Officer | |
/s/ Craig K. Tagawa | |
Craig K. Tagawa | |
Chief Financial Officer |