FIRST AMENDMENT TO FACILITY USE AGREEMENT
THIS FIRST AMENDMENT ("Amendment") TO THE FACILITY USE AGREEMENT is
made and entered into as of July __, 2000 (the "Effective Date"), by and among
Caster One, L.L.C., a Delaware limited liability company, (hereinafter referred
to as "Newco"), Xxxxxx Xxxxxx, M.D. (hereinafter referred to as "Provider") and
Caster Eye Center Medical Group, a California professional corporation
(hereinafter referred to as "Caster PC"). Newco, Provider and Caster PC shall be
referred to collectively as the "Parties".
RECITALS:
WHEREAS, the Parties entered into that certain Facility Use Agreement
(the "Agreement"), dated as of March 1, 2000, by and among Newco, Provider and
Caster PC, that allows Caster PC and Provider to use Newco's facilities in
connection with providing Refractive Surgery and related services;
WHEREAS, the Billing Staff of Newco, as defined hereafter, shall assume
responsibility of billing and collecting on behalf of Newco and the remittance
of payment of the Professional Fee and the unreimbursed reimbursable expenses to
Provider and Caster PC;
WHEREAS, the Parties concur that the assumption by Newco of its
responsibility for billing and collecting, in accordance with the terms of the
Agreement, as further clarified by the terms of this Amendment, is in the best
interest of the Parties;
WHEREAS, the Parties further concur that the Agreement should be
amended to provide that Newco shall retain the Facility Usage Fee from amounts
collected by it, while remitting the Professional Fee and the unreimbursed
reimbursable expenses to Provider and Caster PC;
NOW, THEREFORE, for and in consideration of the recitals above and the
mutual covenants and conditions contained herein, the parties hereto agree to
amend the Agreement as follows:
STATEMENT OF AMENDMENT
1. Section 3.3 of the Agreement is amended by the addition, immediately
after the first paragraph, of the following two (2) paragraphs:
Newco billing staff ("Billing Staff") located in the office at
0000 Xxxxxxxx Xxxx., Xxxxx 000X, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 shall
furnish all billing and collecting services to Provider and Caster PC.
On a day of the week designated by Provider in consultation with Newco,
Provider shall furnish to Billing Staff, in a form satisfactory to
Newco, a procedure data sheet (the "Data Sheet") for the week ending
upon close of business on the previous day (the "Billing Week"). Such
Data Sheet shall enumerate each procedure performed by Provider during
the Billing Week; the total fee charged for the procedure, as
determined by Provider; the name, address and telephone number of the
patient; and any additional information required by Billing Staff for
purposes of proper and timely billing for Provider's professional
medical services in the performance of Refractive Surgery and related
services.
Provider and Caster PC hereby designate Newco as their billing
agent during the term of the Agreement, and Newco hereby accepts such
assignment. Billing Staff shall maintain complete and accurate records
of charges billed and amounts collected, and shall furnish Provider
with copies of all billing statements issued on Provider's behalf, as
well as copies of bank receipts for all payments deposited in an
account designated by Newco. When payments are received, Billing Staff
shall be responsible for recording and depositing the receipts in
Newco's account and making payment to Provider of the agreed upon
amounts constituting compensation for Provider's professional services,
which shall be calculated as described in Section 4.1(a) or 4.1(b) as
the case may be (the "Professional Fee"). The Parties acknowledge and
agree that the entire amount of the Professional Fee shall, in each
case, represent fair market value for Refractive Surgery and related
services performed by Provider and shall include no additional payment
for any other purpose.
2. Section 4.1 of the Agreement is hereby restated in its entirety as
follows:
Section 4.1 Facility Fees. Subject to modification in the
manner prescribed by Section 8.9 of Newco's Limited Liability Company
Agreement, the fees payable to Newco by Caster PC and Provider in
return for use of the Facilities made available by Newco hereunder (the
"Facility Usage Fee") shall be determined on a per procedure basis. The
Facility Usage Fee shall be remitted by Billing Staff on a weekly basis
to an account designated by Newco, less the unreimbursed reimbursable
expenses, pursuant to Section 4.2, incurred by Caster PC and Provider
during the same time period as the procedures were performed on which
the current Facility Usage Fee was based. The amount of the Facility
Usage Fee with respect to any procedure shall be determined in
accordance with the following:
(a) As long as Caster PC's standard, undiscounted fee
charged to the patient (determined without reference
to the fee charged for any single procedure, the
"Patient Fee") has at all prior times remained
between the amounts of $2,400 per procedure and
$2,275 per procedure, the Facility Usage Fee with
respect to any one procedure shall equal (i) the
amount actually collected for such procedure minus
(ii) $400.
(b) At all times following any reduction of the
Patient Fee to an amount less than $2,275 per
procedure, or any increase in the Patient Fee to an
amount greater than $2,400 per procedure, the
Facility Usage Fee with respect to any one procedure
shall equal (i) the amount actually collected for
such procedure minus (ii) an amount up to seventeen
and 58/100 percent (17.58%) of such Patient Fee;
provided, however, that in no event shall the
Facility Usage Fee be below the fair market value of
the use of the Facilities in the aggregate.
(c) At the conclusion of the Billing Week, Billing
Staff shall calculate the total Facility Usage Fee
for that week based on the total number of procedures
performed and the charge per procedure. The total
Facility Usage Fee, less the unreimbursed
reimbursable expenses accruing during the Billing
Week, shall constitute Newco's Facility Usage Fee for
such Billing Week.
(d) The differing amounts reflected in subsection
(ii) of each of subsections (a) and (b) above
represent the range of contemplated Professional Fees
for any one procedure. At the conclusion of each
Billing Week, the total Professional Fees allocated
to Provider per procedure during that week, together
with the amount of the unreimbursed reimbursable
expenses incurred during the Billing Week, shall be
remitted to an account designated by Provider.
(e) Notwithstanding the foregoing provisions of this
Section 4.1, or any other contrary provision of any
Transaction Document, Provider shall be entitled to
perform procedures for free and refund amounts paid
for procedures on a limited basis in a manner and to
the extent Provider has done so in the past, or as
otherwise consented to by Newco. The Facility Usage
Fee with respect to such procedures shall be
eliminated, as long as the aggregate Facility Usage
Fee paid hereunder equals or exceeds the fair market
value of the use of the Facilities.
3. Full Force and Effect. With the exception of the above, the Agreement
shall remain in full force and effect in its original form.
4. Consideration. The Parties acknowledge and agree that the Facility
Usage Fee was originally intended, in accordance with the terms of the
Agreement, to cover all of the management and administration services provided
by Newco, which expressly included billing and collecting services as indicated
in the second Recital herein. Accordingly, no additional consideration is
required on account of Newco's undertaking, at the present time, the
responsibility for billing and collecting services on behalf of Provider and
Caster PC, as provided in the Agreement.
5. Miscellaneous.
a. Entire Agreement. This Amendment, together with the Agreement; that certain
Limited Liability Company Agreement dated as of March 1, 2000 by and among
Newco, Prime Refractive, L.L.C., a Delaware limited liability company, and
Caster Eye Center Medical Group, a California professional corporation; and
that certain contribution agreement (the "Contribution Agreement") dated as
of March 1, 2000, by and among Prime Medical Services, Inc., a Delaware
corporation, Prime Refractive, L.L.C., a Delaware limited liability
company, Newco, Provider and Caster PC, supersedes all previous contracts,
agreements and understandings and constitutes the entire agreement of
whatsoever kind or nature existing between or among the parties and
representing the within subject matter, and no party shall be entitled to
benefits other than those specified herein or therein.
b. Counterparts. This Amendment may be executed in two or more counterparts,
each and all of which shall be deemed an original and all of which together
shall constitute but one and the same instrument.
c. All capitalized terms not defined herein shall have the same definitions as
supplied in the Agreement or the Contribution Agreement.
THE PARTIES HERETO have executed this Amendment as of the day and year
first above written.
[SIGNATURES INTENTIONALLY MOVED TO NEXT PAGE]
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Newco: Caster One, L.L.C.
By: ____________________________________________
Xxxxx Xxxxxx, signing as a manager of Newco
and on behalf of Prime, as a member
of Newco
By: ____________________________________________
Xxxxxx Xxxxxx, signing as both a manager
and, on behalf of Caster, PC, as a
member of Newco
Provider: _______________________________________________
Xxxxxx Xxxxxx, M.D.
Caster PC: Caster Eye Center Medical Group
By:
Xxxxxx Xxxxxx, M.D., President
