MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement ("Agreement") is made and entered
into as of APRIL 30, 1999 by and between DIALYSIS CORPORATION OF AMERICA, a
Florida corporation ("Manager") and DCA OF VINELAND, LLC, a New Jersey limited
liability company ("Company").
WHEREAS, the Company has been established to construct and develop a
hemodialysis outpatient center ("Facility") to provide all levels of outpatient
dialysis care, including chronic maintenance dialysis, home treatment through
hemodialysis or peritoneal dialysis, inpatient dialysis and related services to
hospitals, nursing homes, managed care facilities, and similar institutions,
laboratory, nutritional and pharmaceutical services, and all other necessary
services to dialysis patients ("Business");
WHEREAS, Manager has experience in providing and is ready, willing and
able to provide administrative and management services to the Company in
connection with the Business ("Management Services" as further defined below).
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. SCOPE OF THE AGREEMENT.
1.1 Generally. Throughout the Term (defined in Section 8) of
this Agreement, the Manager shall have responsibility for the general management
and administration of the day-to-day and all aspects of the Business of the
Company ("Management Services"). The Management Services shall include providing
the following:
(a) coordination in procuring capital equipment and
the financing thereof with respect to the Facility and the Business;
(b) annual capital and operating budgets;
(c) coordination of advertising, promotional, public
relations and other marketing of the services performed at the Facility and by
the Business;
(d) adopting the fee schedule for and approval of
ancillary services rendered by the Business;
(e) decisions regarding the establishment or
maintenance of relationships with institutional health care providers and payors
and approval of managed care contracts;
(f) developing long-term strategic planning
objectives;
(g) assistance in obtaining loans, leases and other
financing for the benefit of the Company;
(h) financial management, including causing annual
financial statements to be prepared for the Company by a "Big Five" or
regionally recognized certified public accounting firm selected by Manager;
(i) bookkeeping, accounting, data processing and
other computer based information services;
(j) maintenance of medical records;
(k) materials management, including purchasing and
stocking of office and medical supplies and, if and as necessary,
pharmaceuticals, and maintenance of equipment and facilities;
(l) administration of or causing to be administered
any welfare, benefit or insurance plan or arrangement of the Business;
(m) human resources management, including
recruitment, hiring, training, supervising, monitoring, disciplining and
terminating of non-physician personnel necessary for the Business;
(n) billing and collection, accounts receivable and
accounts payable processing; see Section 3, below;
(o) utilization, cost and quality management systems;
(p) evaluating, negotiating and administering, on
behalf of the Company, multi-employer welfare trusts, third party administrators
and other third parties, including third party payors, managed health care
entities, institutional health care entities, institutional health care
providers and vendors;
(q) coordination in obtaining malpractice and other
agreed upon general and professional liability insurance coverages as required
by the Business and coverage as may be required by law;
(r) developing, implementing, and supporting relevant
policies, protocols and clinical practice guidelines for the Business;
(s) arranging for necessary legal services except
with respect to any legal dispute between the Company and the Manager; and
(t) performing credentialing support services such as
application processing and information verification.
Management Services do not include diagnostic, therapeutic, Dialysis
Treatments and related professional services as more particularly set forth in
the Medical Director Agreement ("MD Agreement," Exhibit A attached) with respect
to Dialysis Treatments as defined in the MD Agreement to be provided by the
Company.
No provision of this Agreement is intended nor shall it be construed to
permit the Manager to affect, interfere with, or influence the
professional/medical judgment of any physician or member of the professional
staff providing Dialysis Treatments or other Professional Services at or for the
Company. To
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the extent that any act or service required or permitted to the Manger by any
provision of this Agreement may be construed or deemed to constitute the
practice of medicine, the ownership or control of a medical practice or the
operation of a medical or healthcare facility or diagnostic and treatment
center, such provision shall be void ab initio, and the performance of such act
or service by the Manager shall be deemed waived by the Company.
1.2 LICENSE. In order to facilitate the performance of the
Management Services, the Company grants to the Manager an exclusive, irrevocable
license to use any and all of the Company's assets, whether tangible or
intangible, used in the Business or at the Facility, and irrevocably assigns to
the Manager all Net Revenues (as defined in Section 6.2) of the Company for the
Term (as defined in Section 7) of this Agreement, in both cases solely for the
purpose of carrying out the Management Services under the provisions of this
Agreement.
1.3 APPLICABLE LAw. The Manager shall use its best efforts to
comply with all applicable federal and state laws, statutes, rules and
regulations, including without limitation those relating to Medicare and
Medicaid reimbursement and any other applicable governmental rules or the
guidelines governing the standards for administering a dialysis business.
2. DUTIES AND RESPONSIBILITIES OF THE COMPANY.
2.1 COMPLETION OF FACILITy. The Company shall complete
construction and development of the Facility and shall be responsible for all
necessary improvements to the space occupied by the Facility for the efficient
operation of a FIFTEEN (15) station hemodialysis outpatient Facility, all in
compliance with applicable building codes, zoning requirements, and other
governmental (federal, state and local) agencies', bureaus' and commissions'
regulations, as of the completion date.
2.2 CONSTRUCTION FINANCING. The Company shall be responsible
for all costs necessary to complete the Facility and any improvements in
accordance with Section 2.1 and to obtain licensing and a certificate of
occupancy.
2.3 LICENSING. The Company shall obtain all permits,
authority, Medicare provider numbers, consents and licenses, including, without
limitation, zoning approvals, variances and use or occupancy permits necessary
to conduct the Business at the Facility.
3. BILLING AND COLLECTION. The Manager shall, on behalf of the Company,
accomplish all the billing and collection activities required in connection with
the Business, whether for the Facility, homecare or inpatient services. The
Company hereby appoints the Manager for the Term of this Agreement to be its
true and lawful attorney-in-fact to take the following actions and for the
following purposes for and on behalf of and in the name of the Company:
(a) xxxx and collect all charges and reimbursements
for the Business;
(b) take possession of and endorse any and all
instruments received as payment for services from the Business and for accounts
receivable from the Business;
(c) deposit all collections directly into the Company
Account (as defined in Section 6.3) and make withdrawals from such Company
Account in accordance with this Agreement; and
(d) initiate the institution of legal proceedings to
collect any accounts and monies owed to the Company, and to enforce the rights
of the Company as creditor in connection with the
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Business, and to contest adjustments and denials by governmental agencies or
their fiscal intermediaries as third-party payors.
The Manager shall use its best efforts to (a) issue bills for all
services of the Business within thirty (30) days of the date services are
rendered and (b) collect for all such services as promptly as may be reasonably
practicable.
4. PAYMENT OF EXPENSES AND COSTS. The Manager shall pay all expenses,
including, without limitation, obligations under the Facility lease (Exhibit B
attached), fees as required in the MD Agreement (Exhibit A attached), the
Management Fee (as defined below), employee wages and benefits, including
vacation pay, employer and employee contributions to a 401(k) or other
retirement plan for the benefit of the Company employees, sick pay, health care
expenses, income taxes, unemployment insurance, social security, or any other
withholding pursuant to any applicable law or government requirement, the
Company's employees' professional dues, claims and obligations associated with
and on behalf of the Business (collectively "Operating Expenses") as they become
due from the Net Revenues of the Company, and the Manager may use any amounts
deposited in the Company Account or as transferred to the Manager Account (as
defined in Section 6.3) to pay amounts due hereunder. Notwithstanding anything
in this Agreement to the contrary, the Manager has no obligation to make any
payments for or on behalf of the Company from its or other sources or resources
except from the Net Revenues of the Company; although the Manager may, but is
not obligated to, provide funding, financing, loans, advances and guarantees to,
for and on behalf of the Company.
5. USE OF FACILITIES. The Company shall make the premises of the
Facility available to the Manager and its employees to the extent necessary to
perform the Management Services and will not interfere with the Manager's use of
such premises, provided said use does not interfere with the Business.
6. MANAGEMENT FEE.
6.1 COMPENSATION. In consideration of the Management Services,
the Company agrees to pay the Manager, to be calculated monthly in arrears, a
management fee ("Management Fee") equal to eleven (11%)percent of Net Revenues
(as defined in Section 6.2) up to One Million ($1,000,000) Dollars; nine (9%)
percent of Net Revenues in excess of One Million ($1,000,000) Dollars up to Two
Million ($2,000,000) Dollars; and six (6%) percent of Net Revenues in excess of
Two Million ($2,000,000) Dollars. The Manager shall be entitled to withdraw from
the Company Account or the Manager Account amounts necessary to pay the
Operating Expenses (defined in Section 4).
6.2 NET REVENUES. Net Revenues shall be determined in
accordance with generally accepted accounting principles and shall mean all
amounts billed by the Manager for services rendered by the Business and the
Company, less contractual adjustments and administrative allowances and less
appropriate allowances for bad debts.
6.3 COMPANY ACCOUNT. The Company shall establish and control a
bank account at a bank in _______, __________, or other location to be mutually
agreed upon by the parties ("Bank") acceptable to the Manager ("Company
Account"). In that connection and throughout the time the Manager is providing
Management Services, the Company hereby appoints the Manager as the Company's
true and lawful agent and attorney-in-fact, and grants the Manager a special
limited power of attorney, and the Manager hereby accepts such special, limited
power of attorney and appointment, to deposit in the Company Account all funds,
fees, and revenues generated by the Company and the Business and collectible by
the Manager. The Company shall execute any and all additional documents required
by the Bank where the Company Account is held to effectuate the power of
attorney granted herein. The Company also agrees to establish the Company
Account with the Bank under terms which
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provide that the entire balance of the Company Account at the close of each
working day may be transferred to a bank account of the Manager reasonably
acceptable to the Company ("Manager Account") by means to be designated by the
Manager. The Company shall not revoke such daily transfer to the Manager
Account, other than upon the occurrence of a material default by the Manager
which results in the Company's termination of this Agreement. The Manager shall
pay the Operating Expenses from funds in the Manager Account as required under
the terms of this Agreement.
6.4 LOSSES. In the event the Business incurs a Net Operating
Loss (defined as an excess of Operating Expenses over Net Revenues), the Manager
shall at the Company's request fund all such Net Operating Losses during the
Term of this Agreement, and all accrued Net Operating Losses shall bear interest
at prime plus two percent (2%) per annum from the date funded by the Manager
("Accrued Interest"). The Manager shall be entitled to deduct from any Net
Revenues of the Company the amount of any Net Operating Losses funded by and
owed to the Manager by the Company together with Accrued Interest until paid in
full. Any unpaid Net Operating Losses and Accrued Interest accrued by the date
of termination of this Agreement shall become due and payable upon such
termination.
6.5 ARMS-LENGTH BARGAINING. The Management Fee paid by the
Company to the Manager has been determined by the parties through good faith and
arm's-length bargaining. No amount paid hereunder is intended to be, nor shall
it be construed to be, an inducement or payment for referral of, or for
recommending referral of, patients by the Company to the Manager (or to any
Manager affiliate) or by the Manager (or by any Manager affiliate) to the
Company. In addition, the Management Fee does not include any discount, rebate,
kickback, or other reduction in charges, and the Management Fee is not intended
to be, nor shall it be construed to be, an inducement or payment for referral,
or recommendation of referral, of patients by the Company to the Manager (or to
any Manager affiliate) or by the Manager (or by any Manager affiliate) to the
Company.
7. TERM.
7.1 TERM. The Term of this Agreement shall be ten (10) years
commencing on the first date on which the Facility receives patients for
treatment (the "Commencement Date") and ending on the tenth (10th) anniversary
of the Commencement Date (the "Term"), unless earlier terminated pursuant to
Section 7.2.
7.2 TERMINATION BY EITHER PARTY.
7.2.1 BREACH. Either party may terminate this
Agreement if the other party breaches this Agreement and such breach is not
cured to the reasonable satisfaction of the nonbreaching party within sixty (60)
days after the receipt of written notice of the default (the "Default Notice"),
or in the case of a breach which cannot be cured within such time period, the
breaching party has not made a good faith effort to attempt to cure such default
within such time period.
72.2 BANKRUPTCY OR CESSATION OF BUSINESs. Either
party may terminate this Agreement immediately upon the occurrence of any of the
following events with regard to the other party:
(a) the making of a general assignment for
the benefit of creditors;
(b) the filing of a voluntary petition or
the commencement of any proceeding by either party for any relief under any
bankruptcy or insolvency laws, or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganization, composition or extension;
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(c) the filing of any involuntary petition
or the commencement of any proceeding by or against either party for any relief
under any bankruptcy or insolvency laws, or any laws relating to the relief of
debtors, readjustment of indebtedness, reorganization, composition or extension,
which such petition or proceeding is not dismissed within sixty (60) days of the
date on which it is filed or commenced; or
(d) suspension of the transaction of the
usual business of either party for a period in excess of sixty (60) days;
7.2.3 AT-WILL TERMINATION. Manager may terminate this
Agreement at any time, with or without cause, by giving the Company not less
than sixty (60) days' prior written notice. The Company may terminate this
Agreement with or without cause, at the end of the initial Term or at the end of
any Renewal Term by giving the Manager not less than ninety (90) days' prior
written notice of its intent to terminate the Agreement at the end of such Term.
7.2.4 IMMEDIATE TERMINATION BY MANAGER. The Manager
may terminate this Agreement immediately upon written notice to the Company in
the event of termination or breach (after any cure period) by the Company for
any reason of any written agreement between the Manager and the Company.
7.2.5 TERMINATION UPON MUTUAL AGREEMENT. The parties
may terminate this Agreement at any time upon execution of a writing signed by
all parties.
7.3 EFFECT OF TERMINATIOn. Upon termination or expiration of
this Agreement for any reason:
(a) the Manager shall have the right to obtain and
retain any amounts owed to Manager under Section 6 hereof as of the date of such
termination or expiration;
(b) the Company shall return to the Manager any and
all property of the Manager which may be in the Company's possession or under
the Company's control;
(c) the Manager shall return to the Company any and
all property of the Company which may be in the possession or control of the
Manager including all records relating to the Business and the provision of
healthcare through the Business, including medical records, corporate, personnel
and financial records maintained for the Business and any and all information
concerning the patients of the Company; provided that Manager shall be entitled
to retain a copy of such records and information to complete billing and
collection functions authorized by this Agreement, to comply with audit and
investigations by third party payors, or as necessary for the benefit of the
Company, or as may be required by law.
8. BOOKS AND RECORDS.
8.1 OWNERSHIP OF RECORDS. All business records and information
relating exclusively to the business and activities of either party shall be the
property of that party, irrespective of identity of the party responsible for
producing or maintaining such records and information.
8.2 RECORDS. During the Term of this Agreement, the Manager
shall keep correct and complete records of accounts and financial transactions
of the Company and the Business and the Company shall have access to such
records at all times.
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8.3 MANAGER'S PROPRIETARY RECORDS. The Company hereby
recognizes and acknowledges that all records, files, reports, protocols,
policies, manuals, databases, processes, procedures, computer systems, materials
and other documents used by the Manager (or by any Manager affiliate) in
rendering the Management Services, or relating to the operations of the Manager
(or of any Manager affiliate), belong to and shall remain the property of the
Manager, and constitute proprietary information and trade secrets that are
valuable, special, and unique assets of the Manager's business. The Company
shall not, and shall ensure that the P.A. and each of its physicians shall not,
during or after the Term of this Agreement, disclose any proprietary information
or trade secrets of the Manager (or of any Manager affiliate) to any other firm,
person, corporation, association, or other entity for any reason or purpose
whatsoever, without the written consent of the Manager (or of any Manager
affiliate).
8.4 ACCESS TO BOOKS AND RECORDS. The Manager, on behalf of the
Company, shall make this Agreement and the books, documents, and records of the
Business available to the Secretary of Health and Human Services, to the
Comptroller General, or their duly authorized representatives to the extent
required by section 952 of the Omnibus Budget and Reconciliation Act of 1980 (as
may be amended, updated or superceded). The Manager shall notify the Company in
writing of any such request for access to such documents and shall provide the
Company with copies of such request and all materials described in such request
within ten (10) days after the Manager's receipt of such request.
9. INDEMNIFICATION.
9.1 GENERALLY. Except to the extent paid from the proceeds of
available insurance policies, each party (and it affiliates) agrees to indemnify
and hold harmless the other party (and its affiliates) against any loss, cost,
suit, claim, action, cause of action, damage, obligation, contract, demand,
liability, judgment, verdict, settlement or expense (including reasonable
attorneys' and other constancy fees and court costs) arising out of any act or
omission of the indemnifying party, its employees, agents or affiliates that
occurs in connection with this Agreement
9.2 NOTICE OF CLAIMS, ETC. Upon obtaining knowledge of facts
causing it to believe that it has or will have a claim for indemnification
against the other party under this Agreement such party (the "Indemnified
Party") shall promptly give the other party (the "Indemnifying Party") written
notice of such claim. The Indemnifying Party shall have thirty (30) days from
the receipt of such notice (the "Defense Notice Period") to notify the
Indemnified Party whether or not it desires to defend the Indemnified Party
against such claim or demand. All costs and expenses incurred by the
Indemnifying Party in defending such claim or demand shall be a liability of,
and shall be paid by, the Indemnifying Party. In the event that the Indemnifying
Party notifies the Indemnified Party during the Defense Notice Period that it
desires to defend the Indemnified Party against such claim or demand then,
except as hereinafter provided, the Indemnifying Party shall have the right to
defend the Indemnified Party by appropriate proceedings using legal counsel
reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing,
the Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, settle, compromise or offer to settle or compromise any such
claim or demand on a basis that would result in the imposition of a consent
order, injunction, decree or agreement that would restrict or affect the future
activity or conduct of the Indemnified Party. The Indemnified Party may
participate in, but not control, any such defense or settlement at its sole cost
and expense. The Indemnified Party shall fully cooperate with the Indemnifying
Party and the Indemnifying Party shall cooperate fully with the Indemnified
Party in the reasonable conduct of any claim contest, action, legal proceeding,
negotiation or settlement governed by this Section 9.2. Upon receiving notice
required by this Section 9.2, if the Indemnifying Party does not elect to
participate in contesting or settling the claim, the Indemnifying Party shall be
estopped from challenging the reasonableness of any contest or settlement of the
claim undertaken by the Indemnified Party.
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9.3 OFFSET. The Manager is hereby authorized upon written
notice to the Company to offset or apply any funds of the Company which the
Manager holds from time to time or which the Manager owes to the Company against
or to any amounts owed by the Company to the Manager under this Agreement;
provided, however, if within ten (10) days of such written notice the Company
objects thereto, such funds shall be placed with an escrow agent pursuant to a
mutually acceptable escrow agreement until any dispute with respect thereto is
finally resolved through binding arbitration.
10. MISCELLANEOUS.
10.1 ARBITRATION. Any disputes arising under this Agreement
shall be determined by arbitration in Cumberland County, the State of New Jersey
in accordance with the rules of the American Arbitration Association
("Association") then in effect, by a single arbitrator selected by mutual
agreement of the parties or, if the parties are unable to agree on an
arbitrator, by the Association; provided that this Section 10.1 shall not
restrict the right of either party to institute a legal proceeding to enable
such party to obtain temporary injunctive relief during the pendency of any such
arbitration. A determination of the dispute by the arbitrator shall be final and
binding on the parties to the extent permitted by law. The cost of the
arbitration, including attorneys' or other consultancy fees, shall be borne by
the non-prevailing party.
10.2 STATUS OF PARTIES. In the performance of all work, duties
and obligations under this Agreement, it is mutually understood and agreed that
each party is at all times acting and performing as an independent contractor
with respect to the other and that no relationship of partnership, joint venture
or employment is created by this Agreement. Each party shall be solely
responsible for and shall comply with all state and federal law pertaining to
employment taxes, income withholding, unemployment compensation contribution and
other employment related statutes applicable to that party, provided that the
Manager shall be responsible for administering and taking all reasonable steps
necessary or appropriate for the performance of such items of the Company.
10.3 FORCE MAJEURE. Neither party shall be deemed to be in
default of this Agreement if such party is prevented from performing any
obligation hereunder for any reason beyond its control, including but not
limited to, Acts of G-d, war, civil commotion, fire, flood or casualty, labor
difficulties, shortages of or inability to obtain labor, materials or equipment,
governmental regulations or restrictions, or unusually severe weather. In any
such case, the parties agree to negotiate in good faith with the goal of
preserving this Agreement and the respective rights and obligations of the
parties hereunder, to the extent reasonably practicable. It is agreed that for
purposes of this Agreement financial inability shall not be deemed to be a
matter beyond a party's reasonable control.
10.4 NOTICES. Any notice, demand, approval, consent or other
communication to be given hereunder by either party to the other shall be deemed
to be received by the intended recipient (a) when delivered personally, (b) the
day following delivery to a nationally recognized overnight courier service with
proof of delivery, (c) by facsimile or e-mail transmission provided such is
substantiated by personal or mail delivery, or (d) three (3) days after mailing
by certified mail, postage prepaid with return receipt requested, in each case
addressed to the parties as set forth below:
If to the Company: DCA of Vineland, LLC
Attn: Xxxxx Xxxxxxx, Vice President
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If to the Manager: Dialysis Corporation of America
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, President
Any party may change the address for notice by notifying the other party, in
writing, of the new address.
10.5 ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the subject matter of this Agreement. This Agreement may not be
changed orally, and may only be amended by an agreement in writing signed by
both parties, which shall be attached hereto.
10.6 NO RIGHTS IN THIRD PARTIES. This Agreement is not
intended to, nor shall it be construed to, create any rights in any third
parties, including the P.A., any physicians employed or engaged by the Company
or the P.A. in connection with the Business.
10.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
10.8 SEVERABILITY. If any provision of this Agreement shall be
held by a court or administrative agency of competent jurisdiction to be
contrary to law, or in a written opinion to the Manager by legal counsel
knowledgeable in healthcare matters retained by the Manager, that provision will
be enforced to the maximum extent permissible, and the remaining provisions of
this Agreement will remain in full force and effect, unless to do so would
result in either party not receiving the benefits of its bargain.
10.9 RIGHTS UNAFFECTED. No amendment, supplement or
termination of this Agreement shall affect or impair any rights or obligations
that had previously matured under this Agreement.
10.10 SUCCESSORS. This Agreement shall be binding upon and
shall inure to the benefit of the parties, their respective heirs, executors,
administrators and assigns.
10.11 FURTHER ACTIONS. Each of the parties hereto agrees that
it shall hereafter execute and deliver such additional instruments and undertake
such additional acts as may be required or useful to carry out the intent and
purpose of this Agreement and as are not inconsistent with the terms hereof.
10.12 COMPLIANCE WITH LAW.
10.12.1 CHANGE IN LAW. In the event of any material
change in, or interpretation or enforcement of, any federal or state law or
regulation (including state or federal anti-kickback statutes and Medicare or
Medicaid reimbursement principles) that would make either the Management Fee or
this Agreement unlawful, or if performance by a party of any duties under this
Agreement is deemed illegal by any court or administrative agency or in a formal
opinion rendered to either party by outside legal counsel of national standing,
the affected party shall have the right to require that the other party
renegotiate the affected terms of this Agreement with the goal of placing the
parties in as similar a position as possible to their respective positions in
this Agreement. To the maximum extent possible, any such amendment shall
preserve the underlying economic and financial arrangements between the Company
and the Manager. Unless the parties otherwise mutually agree in writing, such
renegotiated terms shall be effective not later than twenty (20) days after
receipt of written notice of such request for renegotiation. If the parties fail
to reach an agreement within thirty (30) days of the request for renegotiation,
the matter shall be submitted to binding arbitration upon the request of either
party, and
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through the arbitration process an equitable modification shall be implemented
based on all of the facts and circumstances or the Agreement will terminate in
accordance with Section 7.3.
10.12.2 COMPLIANCE WITH LAW. The parties shall (a)
cooperate with one another in the fulfillment of their respective obligations
under this Agreement, (b) comply with the requirements of law and with all
ordinances, statutes, regulations, directives, orders, or other lawful
enactments or pronouncements of any federal, state, municipal, local or other
lawful authority applicable to the Business, and (c) comply with the
requirements of any insurance company insuring the Facility or the parties
against liability for accident or injury in or upon the premises in which the
Facility is located.
10.13 NON-ASSIGNMENT. The Company may not assign this
Agreement except with the prior written approval of the Manager. The Manager may
assign its rights hereunder to any person that is an affiliate of the Manager
and to any lending institution, for security purposes or as collateral, from
which the Manager obtains financing or to any purchaser of the Manager or of
substantially all of the assets of the Manager, or to any person with which the
Manager may merge or consolidate.
10.14 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original Agreement but all
of which together shall constitute one and the same instrument.
10.15 ATTORNEYS' FEES. If legal action is commenced by either
party to enforce or defend its rights under this Agreement, the prevailing party
in such action shall be entitled to recover its costs and reasonable attorneys'
fees in addition to any other relief granted.
10.16. CONFIDENTIALITY. Except for disclosure to its
attorneys, accountants, bankers, underwriters or lenders, or as necessary or
desirable for conduct of business, neither party hereto shall disseminate or
release to any third party any information regarding any provision of this
Agreement, or any financial information regarding the other (past, present or
future) that was obtained by the other in the course of negotiation of this
Agreement or in the course of the performance of this Agreement, without the
other party's written approval; provided, however, the foregoing shall not apply
to information which (i) is generally available to the public other than as a
result of a breach of any confidentiality provisions, (ii) becomes available on
a non-confidential basis from a source other than the other party, or its
affiliates or agents, which source was not itself bound by a confidentiality
agreement, or (iii) which is required to be disclosed by law, including
securities laws, or pursuant to court order.
10.17 REMEDIES CUMULATIVE; SURVIVABILITY. Except as otherwise
stated in the Agreement, no remedy set forth in this Agreement or otherwise
conferred upon or reserved to any party shall be considered exclusive of any
other remedy available to any party, but the same shall be distinct, separate
and cumulative and may be exercised from time to time as often as occasion may
arise or as may be deemed expedient. Pursuit of any remedy set forth in this
Agreement shall not preclude pursuit of any other remedy provided in this
Agreement, or constitute a waiver of any amount due from a defaulting party
under this Agreement or of any damages accruing by reason of the violation of
any of its terms, provisions and covenants. No waiver of any violation shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants contained in this Agreement, and
forbearance to enforce one or more of the remedies provided on an event of
default shall not be deemed or construed to constitute a waiver of such default
or of any other remedy provided for in this Agreement. The termination of this
Agreement shall not affect the remedies and rights of a party hereunder with
respect to a breach of this Agreement occurring on or before such termination.
10.18 LANGUAGE CONSTRUCTION. The language in all parts of this
Agreement shall be construed, in all cases, according to its fair meaning, and
not for or against either party hereto. The parties acknowledge that each party
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and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
10.19 USE OF CERTAIN TERMS. The definitions and terms used in
this Agreement apply equally to both the singular and the plural; any provision
shall include the corresponding masculine, feminine and neuter; the words
"include" and "including" shall be deemed to be followed by the phrase "without
limitation"; the terms "hereof" and "herein" shall refer to the particular
document in which such term appears.
10.20 HEADINGS. The article and section headings used in this
Agreement are for purposes of convenience only. They shall not be construed to
limit or extend the meaning of any part of this Agreement.
10.21 AUTHORITY. Any person signing this Agreement on behalf
of any entity hereby represents and warrants in its individual capacity that it
has full authority to do so on behalf of such entity.
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute this Agreement as of the date first above written.
DCA OF VINELAND, LLC,
a New Jersey limited liability company ("Company")
/s/ XXXXXXX X. XXXXXXX
-------------------------------------------
By: XXXXXXX X. XXXXXXX
Its: Vice President
DIALYSIS CORPORATION OF AMERICA,
a Florida corporation ("Manager")
/s/ XXXX XXXXXXXXX
-------------------------------------------
By: XXXX XXXXXXXXX
Its: President
Reviewed, acknowledged and accepted:
VINELAND DIALYSIS PROFESSIONALS, LLC
/s/ XXXXX XXXXXXX
------------------------------------
By: XXXXX XXXXXXX, M.D.
Its: President
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