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EXHIBIT 10.18
AMBULATORY SURGERY CENTER
SERVICES AGREEMENT
THIS AMBULATORY SURGERY CENTER SERVICES AGREEMENT (the "Agreement") is
made this 20th day of March, 2000, (the "Commencement Date"), by and between
IOI MANAGEMENT SERVICES OF LOUISIANA, INC., a Louisiana corporation ("IOI"),
and WESTBANK AMBULATORY CARE CENTER, LLC, a Delaware limited liability company
("Westbank").
RECITALS
WHEREAS, IOI provides development, administrative and related business
services to ambulatory surgery centers;
WHEREAS, Westbank is a Delaware limited liability company established
to operate an ambulatory surgery center (the "ASC") in the State of Louisiana;
WHEREAS, Westbank desires to retain IOI to provide certain
development, administrative and related business services to the ASC and IOI
desires to provide such services, as set forth in this Agreement; and
WHEREAS, the parties desire to enter into this Agreement to set forth
the understandings, rights and responsibilities of the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, mutually agree as follows:
TERMS AND CONDITIONS
1. RECITALS. The Recitals set forth above are true and correct as
stated and are incorporated herein by reference.
2. DEFINED TERMS. Certain capitalized terms used herein are defined
where indicated in Section 16 of this Agreement.
3. RELATIONSHIP OF THE PARTIES.
3.1 ENGAGEMENT OF IOI. Westbank hereby appoints and engages IOI, as of
the Commencement Date, to provide the IOI Services to the ASC during the Term,
and IOI accepts such appointment and engagement, in accordance with the terms
and conditions of this Agreement. During the Term, IOI shall be the exclusive
provider to Westbank and the ASC of services the same or similar to the IOI
Services and, during the Term, no individual or entity, other than IOI, shall
provide to Westbank or the ASC any services the same or similar to any of the
IOI Services.
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3.2 PROVISION OF HEALTH CARE SERVICES. IOI is not a health care
provider. The IOI Services offered by IOI are limited to the "business" aspects
of operating the ASC and do not include clinical activities or the provision of
health care goods or services. All medical services are the sole responsibility
of Westbank, the ASC and/or the physicians and other personnel (collectively,
the "Medical Staff") who render medical services at the ASC. Westbank shall
have exclusive authority and control over all aspects of the ASC that
constitute determinations that are required by law to be decided or determined
by a licensed ambulatory surgery center. Any delegation of authority by
Westbank to IOI that would require or permit IOI to render health care goods or
services or which require the ownership of an ambulatory surgery center license
shall be prohibited and deemed ineffective, and IOI shall have no authority
with respect to such matters.
3.3 INDEPENDENT CONTRACTORS. IOI and Westbank acknowledge and agree
that the relationship between them is that of independent contracting parties.
IOI is an independent contractor providing the IOI Services, and Westbank is an
independent business purchasing the IOI Services from IOI for fair market
value. Nothing contained herein shall be construed as creating a partnership,
joint venture, or employment relationship between IOI and Westbank.
3.4 PATIENT REFERRALS. The benefits to Westbank and IOI pursuant to
this Agreement do not require, are not payment for, and are in no way
contingent upon the admission, recommendation, referral or any other
arrangement for: (i) the use of any item of service offered by IOI or any
medical practice or medical facility that, from time to time, may be or become
affiliated with IOI; or (ii) the referral of patients or arrangements for
patient relationships or related fees or compensation by or among the parties.
THERE IS ABSOLUTELY NO INTENT FOR IOI TO GENERATE, AND IOI IS NOT IN ANY MANNER
BEING COMPENSATED TO GENERATE, REFERRALS OF PATIENTS FOR THE ASC. WESTBANK HAS
RETAINED IOI TO PROVIDE CERTAIN SERVICES RELATED TO THE BUSINESS ASPECTS OF THE
ASC SO THAT WESTBANK AND THE ASC MAY FOCUS ON DELIVERING PROFESSIONAL MEDICAL
SERVICES.
3.5 ASC REVENUES. None of the cash collected by Westbank or the ASC or
any of the Medical Staff is the property of IOI, and IOI will have no interest
therein or right thereto, other than the security interest described in Section
7.4.
4. IOI SERVICES.
4.1 GENERAL. During the Term, IOI will provide certain non-medical
services to the ASC which are intended to assist and support the ASC in
achieving its business objectives. The "IOI Services" are those services
described in Section 4 and IOI's portion of those services described in Section
6 of this Agreement; provided that the IOI Services shall be limited to
business matters as opposed to clinical matters relating to the provision of
health care goods or services or the professional relationship between a
physician and a patient.
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4.2 SCOPE OF SERVICES AGREEMENT. The IOI Services offered by IOI shall
be designed to assist the existing management, staff, independent contractors,
employees and professionals of Westbank that render services in connection with
the ASC. The IOI Services shall not replace or supercede existing management,
staff, independent contractors, employees, and professionals of Westbank.
4.3 LEASE OF PREMISES. During the Term, IOI will lease, sublease or
otherwise provide or arrange for the provision to Westbank of the premises
located at 0000 Xxxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the "Premises").
IOI will arrange for the provision of all reasonably necessary and appropriate
utilities, building services and supplies, including but not limited to all
water, gas, heat, air conditioning, power, light, janitorial and maintenance
services at the Premises.
4.4 MASTER LEASE. The Premises are subject to that certain lease (the
"Master Lease") by and between IOI and Marrero Shopping Center, Inc., a
Louisiana corporation (the "Landlord"), a copy of which is attached hereto as
Exhibit 4.4. All of IOI's obligations hereunder regarding the Premises are
subject to the terms and conditions of the Master Lease. Westbank hereby
agrees, and shall cause all of its employees and agents to agree, to be bound
by the terms and conditions of the Master Lease during the Term, which apply to
the lessee thereunder.
4.5 LEASE OF EQUIPMENT. During the Term, IOI will lease, sublease or
otherwise provide or arrange for the provision to Westbank of certain
furniture, fixtures and equipment (the "Equipment"), as agreed upon by IOI and
Westbank, to be used by Westbank at the Premises for the operation of the ASC.
"Equipment" shall include all original and new equipment. Westbank hereby
accepts such Equipment "AS IS."
4.6 MAINTENANCE OF EQUIPMENT. IOI will maintain the Equipment, at the
sole expense of Westbank, in reasonably good condition and repair, reasonable
wear and tear excepted. IOI will refurbish, replace or add additional
Equipment, at the sole expense of Westbank, as agreed upon by Westbank and IOI,
from time to time. IOI's provision of any Equipment that is leased to IOI is
subject to the terms and conditions of all applicable leases and Westbank
hereby agrees, and shall cause all of its employees and agents to agree, to be
bound by the terms and conditions of any such leases.
4.7 NO WARRANTY. WESTBANK ACKNOWLEDGES THAT IOI MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE FITNESS, SUITABILITY OR ADEQUACY
OF THE PREMISES OR ANY EQUIPMENT LEASED OR PROVIDED PURSUANT TO THIS AGREEMENT
FOR THE OPERATION OF AN AMBULATORY SURGERY CENTER OR FOR ANY OTHER PARTICULAR
PURPOSE.
4.8 FACILITY FEES. IOI will assist Westbank in reviewing, evaluating,
and negotiating facility fees.
4.9 SELECTION OF AGENTS OF WESTBANK. IOI may assist Westbank in
identifying, selecting and engaging independent contractors, consultants, and
vendors to
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provide goods or services to the ASC at the expense of Westbank. In such event,
the terms, conditions and compensatory arrangements between Westbank and such
independent contractors, consultants and vendors will be subject to and
controlled by agreements directly between Westbank and said third parties.
4.10 CONSULTANTS AND INDEPENDENT CONTRACTORS. IOI may, at its
discretion, provide the IOI Services to the ASC through IOI employees and
through independent contractors, vendors and consultants affiliated with and
compensated by IOI.
4.11 COMPLIANCE WITH LLC AGREEMENT. IOI shall comply with and abide by
that certain Limited Liability Company Agreement of Westbank (the "LLC
Agreement"), as may be amended from time to time. In particular, IOI
acknowledges that pursuant to the LLC Agreement, the Management Board, as
defined in the LLC Agreement, holds and possesses certain powers and rights
with respect to Westbank and IOI agrees that it shall take no actions which are
reserved in the LLC Agreement for the Management Board.
5. DUTIES AND RESPONSIBILITIES OF WESTBANK AND THE ASC. During the
Term, Westbank and the ASC shall have the following duties and
responsibilities:
5.1 PROVISION OF HEALTH CARE SERVICES. Westbank shall operate the ASC
on a full-time basis on the Premises and, in conjunction with the Medical
Staff, shall be responsible for the medical care of the patients of the ASC and
shall provide professional medical services to such patients in a manner that
is in accordance with the prevailing standards and practices in the community
and in compliance with all applicable laws and regulations.
5.2 USE OF PREMISES AND EQUIPMENT. Westbank shall use the Premises and
the Equipment leased, subleased or otherwise provided or arranged for by IOI
pursuant to this Agreement solely in the conduct of the ASC, and shall not use
the Premises or any Equipment for any reason other than the provision of health
care and surgical services at the ASC. Westbank agrees to comply with all
federal, state and local laws, rules and regulations governing and regulating
the use of the Premises and the Equipment, and shall have no right, title or
interest in the Premises and the Equipment, other than as set forth herein.
5.3 MEDICAL DIRECTOR. Westbank shall appoint an individual who will be
responsible for the overall administration of the medical aspects of the ASC
(the "Medical Director"). Westbank and IOI shall mutually determine any and all
compensation, payroll taxes, fringe benefits, bonuses, disability insurance,
workers' compensation insurance and any other benefits of the Medical Director.
The Medical Director shall: (a) establish clinical standards and oversee the
performance of such standards; (b) advise Westbank and IOI regarding the
effectiveness and productivity of new medical services and equipment; and (c)
such other duties as may be required hereunder or in any agreement between
Westbank and the Medical Director.
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5.4 MEDICAL STAFF. Westbank shall admit new physicians (the "Medical
Staff Physicians") to the Medical Staff of the ASC to render the surgical and
other medical services at the ASC. Westbank shall ensure that each such Medical
Staff Physician shall maintain: (i) an unrestricted license to practice
medicine in the State of Louisiana; (ii) good standing with the medical board
of the State of Louisiana; (iii) a Federal Drug Enforcement Administration
certificate; (iv) a State of Louisiana controlled dangerous substance
certificate without restrictions; (v) such hospital medical staff memberships
and clinical privileges appropriate to his or her specialty, as determined by
Westbank and sufficient to meet the requirements of payors; (vi) his or her
skills through continuing education and training; (vii) professional liability
insurance for his or her specialty in such amounts as agreed upon by IOI and
Westbank from time to time; and (viii) such other requirements as are
reasonably requested by the ASC of its Medical Staff.
5.5 MEDICAL STAFF RECRUITMENT. Westbank will recruit members to the
Medical Staff of the ASC and will carry out such administrative functions as
may be appropriate for such recruitment, including advertising for and
identifying potential candidates, examining and investigating the credentials
of such potential candidates, arranging interviews with such potential
candidates, and interviewing and making the ultimate decision as to whether to
admit such individual to the Medical Staff of the ASC. Any expenses incurred in
the recruitment of Medical Staff of the ASC, including, but not limited to,
employment agency fees, relocation expenses and interviewing expenses shall be
expenses of Westbank.
5.6 COMPLIANCE OF MEDICAL STAFF. Westbank shall ensure that at all
times during the Term, each Medical Staff Physician complies with the bylaws of
the Medical Staff and the rules and regulations of the ASC. The rendition of
all medical services, the fee schedules for the provision of medical services,
the supervision of all personnel rendering medical services at the ASC, and the
billing and collecting for such services shall be the sole and exclusive
responsibility of Westbank.
5.7 DISCIPLINARY ACTIONS. If any disciplinary actions or professional
liability actions are initiated against any Medical Staff Physician or any
physician extender or other personnel of the ASC, Westbank shall promptly
inform IOI of such action and the underlying facts and circumstances.
5.8 RETENTION OF PERSONNEL. Westbank shall employ or otherwise retain
or contract with all personnel necessary for the effective operation of the
ASC, including, but not limited to, the Medical Staff Physicians, anesthesia
personnel, floor nurses, operating room nurses, operating room technicians,
laboratory technicians, radiology technicians, and pre-and post-operative
nurses, secretaries, receptionists and such other personnel, if any, as may be
determined by IOI and Westbank to be necessary or appropriate for the operation
of the ASC. Westbank shall make all hiring and termination decisions, establish
and pay all wages, salaries and compensation, determine staffing levels,
individual work hours, personnel policies and employee benefit programs for all
personnel providing services on behalf of Westbank and the ASC which services
shall be supervised by Westbank.
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5.9 EMPLOYMENT COMPENSATION. Westbank shall be responsible for the
payment of all compensation and benefits payable to all employees and
independent contractors who render services on behalf of the ASC, including all
applicable vacation pay, sick leave, retirement benefits, social security,
workers' compensation, health, life or disability insurance or any other
employee benefits of any kind or nature.
5.10 PRACTICE EXPENSES. Westbank shall be solely responsible for the
payment of all expenses of every type and nature whatsoever related to the
operations of the ASC and Westbank, including without limitation, the cost of
all utilities and other expenses related to the use of the Premises that are
not included as part of the rent under the Master Lease, the costs of all
medical supplies, inventory, office supplies, linens, stationery, forms,
secretarial supplies, paging devices, postage, duplication equipment and
facsimile machines. Westbank shall pay all such expenses as they come due,
including without limitation, the ASC Services Fee. Westbank shall not pay any
distributions to its members until the ASC Services Fee is paid in full to IOI.
5.11 BILLING AND COLLECTING. Westbank shall provide billing and
collection services for all fees payable with respect to the ASC's provision of
services, equipment, devices and supplies to patients of the ASC, including,
but not limited to, technical and ancillary services (e.g., facility fees) and
all professional anesthesia medical services, including global fees as set
forth in Section 6.6.
5.12 COMPLIANCE WITH STATUTES. Westbank shall comply with any and all
federal, state and local statutes, regulations, rules, orders or other
requirements that affect the ASC and/or its operations, including without
limitation ASC's billing, coding and collection practices and systems. Westbank
shall obtain and maintain all licenses and accreditations as are necessary for
the provision of medical and health care services and the operation of an
ambulatory surgery center once the ASC is operational.
5.13 COMPLIANCE. With respect to legal compliance issues, Westbank
understands and agrees that Westbank shall be solely responsible for complying
with, and ensuring its compliance with, all applicable federal and state laws,
rules and regulations, including without limitation, all Medicare, Medicaid,
billing and coding laws, rules and regulations. Although Westbank and the ASC
may consult with IOI regarding compliance issues, the parties hereby explicitly
acknowledge and agree that it shall be Westbank's sole responsibility to comply
with, and to determine whether Westbank and the ASC are in compliance with, any
applicable Medicare or Medicaid laws, rules or regulations or any other
applicable federal or state laws, rules or regulations.
5.14 SUPPORT OF IOI. Westbank shall, and shall cause the Medical Staff
to, encourage, support and xxxxxx the reputation and image of IOI within the
medical community and health care industry.
5.15 COMPLIANCE WITH AGREEMENT. Westbank shall comply with all of the
terms and provisions of this Agreement, including the obligation to pay the ASC
Services Fees, on a timely basis. Additionally, Westbank shall cause all of the
Owners to comply with all provisions of this Agreement which apply to such
Owners, including the restrictive covenants set forth in Section 10.
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6. JOINT RESPONSIBILITIES OF IOI AND WESTBANK
6.1 QUALITY AND UTILIZATION MANAGEMENT. Westbank and IOI acknowledge
and agree that a quality and utilization management program for determining the
medical necessity and appropriateness of care rendered by the ASC provides
controls and protections that assist to prevent potential overutilization with
any fee for service arrangement, including, but not limited, to those
reimbursable under federal health insurance programs and also provides
essential data to Westbank and IOI for the purposes of managing the ASC and
negotiating, administering and maintaining payor contracts, if any. Westbank
and IOI agree to develop and implement a quality and utilization management
program in accordance with recommendations made by IOI and Westbank or as may
be required under payor contracts, if any. Westbank shall ensure that the
Medical Staff complies with the standards, protocols and practice guidelines
established by such programs. IOI is authorized by Westbank to prepare and
distribute reports of such ASC program activities to employees of, and
consultants to, Westbank and IOI and to payors and such other persons as IOI
deems necessary in order for IOI to carry out its obligations hereunder.
6.2 PEER REVIEW. Westbank and IOI shall cooperate to develop, from
time to time, peer review procedures for the Medical Staff Physicians. Westbank
shall provide IOI with prompt notice of any material quality of care concerns
relating to Medical Staff Physicians or any other individuals providing
services on behalf of the ASC. Westbank shall implement such corrective actions
that Westbank determines are necessary or appropriate to comply with the then
current peer review procedures, community standards, and laws. Westbank shall
comply with, and shall cause the Medical Staff Physicians to comply with, and
participate in, all peer review programs of IOI or any entity with whom IOI and
Westbank contracts, including, but not limited to, payors.
6.3 MANAGED CARE CONTRACTING. To the extent permitted by applicable
law, IOI shall assist Westbank in locating, reviewing, evaluating, and
negotiating payor contracts on behalf of the ASC; provided, however, Westbank
and IOI shall work together to implement controls (including attempting to
ensure that payor contracts have utilization review and quality assurance
programs) to help ensure that overutilization of services does not occur with
respect to the services rendered at the ASC. Notwithstanding anything to the
contrary herein, IOI may negotiate and enter into payor contracts in its own
name, or in the name of other ambulatory surgery centers or medical practices
which IOI manages, pursuant to which such entities other than Westbank will
render services.
6.4 MANAGED CARE CONTRACT ADMINISTRATION. IOI shall assist Westbank
with payor contracts on behalf of the ASC as follows: (i) assist Westbank in
determining eligibility of patients for coverage prior to the provision of
medical or other services; (ii) assist in reconciling retroactive denials of
eligibility; (iii) assist in the administration of the authorization processes
established by Westbank or payors; (iv) serve as a liaison with payors; (v)
submit or obtain data and reports in accordance with payor contracts; (vi)
assist in resolving any grievances between Westbank and payors; and (vii)
assist in resolving enrollee or member grievances.
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6.5 COOPERATION AND COMPLIANCE OF MEDICAL STAFF PHYSICIANS. Westbank
shall ensure that the Medical Staff Physicians participate in various aspects
of the managed care arrangements of the ASC as required by the applicable payor
contracts. The professional services provided by the ASC and the Medical Staff
shall at all times be provided in accordance with applicable standards, laws
and regulations applying to the medical profession. The ASC and the Medical
Staff shall comply with all payor contracts.
6.6 GLOBAL OR PACKAGE PRICING. If IOI, on behalf of Westbank, enters
into negotiations with a payor to enter into an agreement which provides for
global or package pricing for ambulatory surgery professional and facility
services, IOI and Westbank shall determine the professional component and the
facility component, as the case may be, respectively, of the global or package
pricing prior to entering into such payor agreement.
7. ASC SERVICES FEE.
7.1 GENERAL. In consideration of the IOI Services that IOI will
provide to Westbank hereunder, Westbank shall timely pay to IOI the ASC
Services Fee, as defined on Exhibit A, for each calendar month or part thereof
during the Term. Each monthly installment of the ASC Services Fee shall be paid
by Westbank to IOI on or before the fifteenth (15th) day of each calendar month
during the Term and the first calendar month after the Term, with respect to
the IOI Services provided during the prior month. The parties agree that the
ASC Services Fee is a fair and reasonable payment by Westbank for the IOI
Services provided by IOI based upon the nature and amount of services to be
rendered to Westbank. The ASC Services Fee to be paid by Westbank to IOI
pursuant to this Agreement represents fair market value, negotiated
compensation for valuable services.
7.2 AUTOMATIC DEDUCTION. Westbank hereby grants to IOI a limited power
of attorney that IOI may use at any time to automatically deduct each due and
owing installment of the ASC Services Fee from the ASC's designated bank
account. Appropriate automatic withdrawal forms required by the ASC's banking
institution will be executed by Westbank prior to or after the Commencement
Date, as may be required from time to time by the ASC's bank.
7.3 LATE FEE. Any payment received after the date on which it is due
shall be late and a late fee (the "Late Fee") shall accrue at the rate of one
and one-half percent (1.5%) of the past due payment per month, commencing on
the due date for such past due payment. The Late Fee shall be automatically
added to the monthly payment for each calendar month or portion of a calendar
month that the payment remains late.
7.4 SECURITY INTEREST. To secure Westbank's obligations to IOI
hereunder, Westbank hereby grants to IOI a security interest, to the extent
permitted by applicable laws, in all property, if any, that Westbank may now
own or may hereafter acquire (the
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"Collateral") and related to the ASC including, without limitation, the
following: (a) all inventory, whether now owned or hereafter acquired; (b) all
equipment, machinery, tools, fixtures, furnishings, leasehold improvements,
furniture, vehicles or goods, whether now owned or hereafter acquired; (c) all
accounts receivable, accounts, contracts, contract rights, chattel paper, and
choses in action, now or hereafter due or owing to Westbank; (d) all general
intangibles, now or hereafter owned, including, without limitation, books and
records, notes, instruments, licenses, and trade names; (e) all insurance
policies and proceeds thereof; and (f) all proceeds and products of the
foregoing. Westbank shall execute such financing statements and other documents
as shall be necessary to perfect (and maintain the perfection of) said security
interest. Upon a material default hereunder or other breach by Westbank that
results in the termination of this Agreement, or upon non-payment of any amount
owed by Westbank hereunder, IOI shall be entitled to exercise all rights and
remedies under Louisiana law, including without limitation, all rights and
remedies of a secured party under the Louisiana Uniform Commercial Code. ASC
shall not sell, assign, transfer or encumber any of the Collateral without
IOI's prior written consent.
8. RECORDS, RECORDKEEPING, LICENSE.
8.1 ACCESS TO INFORMATION. Westbank hereby authorizes and grants to
IOI full and complete access to all information, instruments and documents of
Westbank or in Westbank's possession and which relate to the ASC which may be
reasonably requested by IOI to perform its obligations hereunder, and shall
disclose and make available to representatives of IOI for review and
photocopying all such books, agreements, documents and records.
8.2 OWNERSHIP AND INSPECTION OF RECORDS. At all times during and after
the Term, all patient medical records shall be and remain the sole property of
Westbank. All such patient medical records shall be prepared and maintained in
accordance with all applicable laws regarding confidentiality and retention.
The patient medical records shall be maintained and kept at the Premises and
upon termination of this Agreement, all such patient medical records shall be
and remain in the possession of Westbank. To the extent permitted by applicable
law, IOI shall be permitted to retain true and complete copies of such records.
8.3 STORAGE OF RECORDS. Westbank agrees to store all records in its
possession, including but not limited to patient medical records, at its sole
cost and expense, for a minimum of seven (7) years from the date of the last
activity recorded in such records. At the end of the seven (7) year period,
Westbank shall be entitled to dispose of such records as it deems necessary or
appropriate; provided, however, Westbank shall provide prior written notice to
IOI of Westbank's intent to dispose of such records and shall provide IOI with
a thirty (30) calendar day period, from the date that such notice is given by
Westbank, for IOI to take control of or copy any or all of the records to be
disposed of by Westbank, at the sole cost and expense of IOI.
8.4 LICENSE OF ASC NAME AND LOGO. Westbank hereby grants to IOI the
nonexclusive right, license and privilege to use the ASC's name and logo, if
any, and the
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name "WESTBANK AMBULATORY CARE CENTER, LLC" alone or as a portion of or in
connection with the corporate name of IOI during the Term, and subject to all
of the terms and conditions provided herein. IOI may include its name and the
names of Westbank and the ASC and the Medical Staff Physicians on any
letterhead, professional announcements, brochures, promotional materials,
private placements, public offerings, and the like relating to IOI.
8.5 PROPRIETARY PROPERTY. IOI is and shall be the sole owner and
holder of all right, title and interest to the proprietary property of IOI
consisting of all copyright, service xxxx and trademark rights and interests in
the logo, business information and other systems, forms, form contracts, policy
manuals, marketing and public relations materials relating to the ASC,
excluding any logos purchased or created solely by Westbank. Westbank agrees
that it shall not at any time knowingly harm, misuse or bring into disrepute
the proprietary property of IOI.
9. TERM OF AGREEMENT.
9.1 TERM. The term (the "Initial Term") of this Agreement shall
commence on the Commencement Date and shall expire on the last day of the
twenty-fifth (25th) year after the Commencement Date, unless earlier terminated
in accordance with this Agreement.
9.2 EXTENSION. Upon expiration of the Initial Term, this Agreement
shall be extended for successive periods of five (5) years each (each, an
"Extension Term"), unless either Westbank or IOI provides the other with
written notice of its desire not to renew, not less than ninety (90) days prior
to the end of the Initial Term or the applicable Extension Term, or unless
sooner terminated as set forth herein. All of the terms and conditions of this
Agreement applicable to the Initial Term shall apply to each Extension Term,
unless Westbank and IOI mutually agree in writing to alter any such terms and
conditions. The "Term" of this Agreement shall mean the Initial Term and any
Extension Terms.
9.3 TERMINATION BY WESTBANK. Westbank may terminate this Agreement
"for cause," subject to the notice and cure provisions and other provisions set
forth in Section 9.5(b). For purposes of termination of this Agreement by
Westbank, "for cause" shall mean:
(a) IOI materially defaults in the performance of a material
obligation or a material duty imposed by this Agreement;
(b) IOI voluntarily files a petition in bankruptcy or makes a
general assignment for the benefit of creditors; or
(c) A law firm with nationally recognized expertise in health care
law, acceptable to IOI, issues an opinion to the parties that states that a
material provision of this Agreement is in violation of applicable law, or a
court or regulatory agency enters an order finding a material provision of this
Agreement to be in violation of applicable law;
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and provisions cannot be amended pursuant to Section 14 of the Agreement to
cure such violation in the opinion of said health care law firm.
9.4 TERMINATION BY IOI. IOI may terminate this Agreement at any time
"for cause" subject to the notice and cure provisions and other provisions set
forth in Section 9.5(b) and 9.5(c), as applicable. For purposes of termination
of this Agreement by IOI, "for cause" shall mean:
(a) Westbank fails to timely pay any ASC Services Fee or any
monthly installment of the ASC Services Fee due under this Agreement;
(b) Westbank fails to timely pay any principal or interest due
under any loan or other financing agreement between IOI and Westbank or between
Westbank and any third party secured by or arranged for by IOI;
(c) Westbank makes a misrepresentation or breaches any warranty in
this Agreement, or Westbank defaults in the performance of an obligation or
duty imposed by this Agreement;
(d) Westbank is suspended or prohibited from participating in the
Medicare or Medicaid Programs or is excluded from entering into health care
provider agreements with any material portion of the managed care or health
care insurance industry;
(e) Westbank allows a physician to be on the Medical Staff who
does not comply with the requirements for membership in the Medical Staff;
(f) Westbank ceases to engage in the provision of health care
services or voluntarily files a petition in bankruptcy, consents to an
involuntary petition in bankruptcy, suffers any decree or order adjudicating
Westbank bankrupt, approving its reorganization, or appointing a receiver,
trustee or liquidation of Westbank, or makes a general assignment for the
benefit of its creditors; or
(g) A law firm with nationally recognized expertise in health care
law, acceptable to IOI, issues an opinion to the parties that states that a
material provision of this Agreement is in violation of applicable law, or a
court or regulatory agency enters an order finding a material provision of this
Agreement to be in violation of applicable law; and provisions cannot be
amended pursuant to Section 14 of this Agreement to cure such violation in the
opinion of said health care law firm.
9.5 EFFECTIVE DATE OF TERMINATION. The effective date (the "Termination
Date") of any termination of this Agreement shall be as follows:
(a) Upon expiration of the Term pursuant to Section 9.2; or
(b) Upon the expiration of the sixty (60) day period following the
terminating party's provision of notice of termination to the other party;
provided, however, that in the event this Agreement is being terminated "for
cause", the Agreement
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shall not terminate if the event of cause is curable and has been completely
cured during such sixty (60) day period or, if the breach is of a type that
cannot be completely cured during such sixty (60) day period, the breaching
party has commenced to cure such breach prior to the end of the sixty (60) day
notice period and is diligently prosecuting such cure to completion. The
non-terminating party may challenge the termination within said sixty (60) day
period by delivering to the terminating party a written notice that includes,
without limitation: (i) an assertion that the event of cause did not occur; or
(ii) an assertion that the event of cause has been cured as provided herein. In
such event the parties shall attempt to mutually agree upon whether the breach
existed or whether the breach has been cured, as applicable. In the event that
the parties cannot mutually agree upon the rebutted matter, the matter of
termination shall be resolved in accordance with Section 13 of this Agreement;
or
(c) Upon the date that IOI provides notice of termination to
Westbank if IOI is terminating this Agreement pursuant to Section 9.4(a) or
9.4(b). Notwithstanding anything herein to the contrary, IOI shall have the
right to immediately terminate this Agreement by providing notice to Westbank
upon the occurrence of any event described in Section 9.4(a) or 9.4(b).
9.6 EFFECT OF TERMINATION. Upon the Termination Date, this Agreement
shall be terminated and the parties shall comply with the following:
(a) Each party shall provide the other party with reasonable access
to books and records owned by it or in such party's possession and that are
relevant to this Agreement or reasonably necessary to assist the other party in
satisfying reporting or contractual obligations or for any other proper purpose;
(b) All ASC Services Fees and Late Fees, if any, due to IOI
pursuant to this Agreement shall be immediately paid in full by Westbank on the
Termination Date;
(c) Westbank shall cease using the name "IOI" or representing any
affiliation with IOI as of the Termination Date;
(d) All property and materials owned by the other party shall be
redelivered to that party by the party in possession on the Termination Date;
(e) If IOI chooses, in its sole discretion, for Westbank to accept
assignment of the lease for the Premises or any of the Equipment, or any other
lease or sublease for any other good or service whatsoever that was entered into
by IOI with respect to the provision of the IOI Services or otherwise related to
IOI's provision of the IOI Services on behalf of Westbank or the ASC, Westbank
shall accept such assignment; and
(f) If the cause of the termination of this Agreement is related in
any way whatsoever to any action of the Landlord, any breach by the Landlord
under the Master Lease, any action whatsoever of any lessor of any item of
Equipment, or any breach by any lessor under the lease for any item of
Equipment, then IOI shall not be
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liable or responsible to Westbank hereunder for any damages of any type or
nature whatsoever, related to the inability of Westbank to use the Premises or
the Equipment or to receive any or all of the IOI Services.
9.7 TERMINATION NOT ALLOWED. If the Premises or any item of Equipment
becomes unavailable for use by Westbank due to any action whatsoever of the
Landlord, any breach by the Landlord under the Master Lease, any action
whatsoever of any lessor of any item of Equipment, any breach by any lessor
under the lease for any item of Equipment, or any action by any other entity or
individual other than IOI, such unavailability shall not be deemed grounds for
termination of this Agreement by Westbank if Westbank continues to operate an
ambulatory surgery center or similar business. In such event, IOI shall provide
the IOI Services to Westbank for the remainder of the Term at such new location
or through the use of new Equipment and Westbank shall continue to owe to IOI
the ASC Services Fee as set forth herein; provided, however, the Real Estate
Lease Fee and the Equipment Lease Fee components of the ASC Services Fee shall
be decreased or increased, as applicable, to reflect the cost to IOI of the
actual real estate and equipment that IOI is then providing to Westbank in each
applicable month and shall not be based on the costs that IOI previously
incurred with respect to the Premises and the Equipment in the months prior to
such event. Additionally, in such event, IOI shall not be liable or responsible
to Westbank hereunder for any damages of any type or nature whatsoever related
to the inability of Westbank to use the Premises or any item of Equipment or to
receive any or all of the IOI Services related thereto.
10. RESTRICTIVE COVENANTS.
10.1 NONCOMPETITION. During the Term, other than through the ASC,
Westbank and each Owner of equity in Westbank shall not, without the prior
written consent of IOI, directly or indirectly own, manage, operate, control or
participate in any manner in the ownership, management, operation or control of,
or serve as a partner, employee, principal, agent, consultant or otherwise with,
or have any financial interest in, or aid or assist any other person or entity
in the conduct of any ambulatory surgery center or any medical practice that
provides any physician-office surgery services or procedures at such practice's
facilities that could be performed at an ambulatory surgery center, where such
ambulatory surgery center or medical practice performs services in the
Territory. "Owner" shall mean the owner of equity in Westbank and each principal
of an owner of equity in Westbank that is not an individual. "Territory" shall
mean any place within a fifty (50) mile radius of the ASC. As indicated above,
these noncompetition provisions shall cease to apply to an individual or entity
once such individual or entity is no longer an "Owner" of Westbank.
Notwithstanding anything to the contrary in this Section 10, the provisions of
this Section 10 shall not prohibit an Owner from serving as a medical director
as long as such Owner is not the medical director of an ambulatory surgery
center, outpatient surgery center, or like type center or department.
10.2 NONSOLICITATION. During the Term and for a period of two (2) years
following an Owner's ceasing to be an Owner (if Westbank is still operating the
Ambulatory Surgery Center during such period), neither Westbank nor any Owner
shall
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employ or offer employment to any person who is employed by IOI during the
Term, without the prior written consent of IOI; provided, however, that if an
individual was an employee of such Owner immediately prior to becoming an
employee of IOI, then this nonsolicitation provision shall not apply to prohibit
such individual from resuming employment with such Owner.
10.3 CONFIDENTIALITY OF RECORDS. Westbank and each Owner shall keep
secret and confidential, and agrees to keep secret and confidential, all
information acquired relating to the following (all such information being
hereinafter referred to as "Confidential Business Information"): (a) the
financial condition and other information relating to the business of IOI,
including without limitation, its rates for services, its operations and
contracts, and its business plans and arrangements; (b) the systems, products,
plans, services, marketing, sales, administration and management procedures,
trade relations or practices, techniques and practices heretofore or hereafter
acquired, developed and/or used by IOI; and (c) in connection with IOI's
clients, customers, suppliers, vendors, lenders, and independent contractors,
the provisions and terms of any agreements or proposed agreements between IOI
and any of such individuals or entities. Westbank and each Owner, and each agent
or principal thereof, shall at no time disclose any such Confidential Business
Information to any person, firm, corporation, association or other entity, or
use the same in any manner other than in connection with the business and
affairs of IOI. Notwithstanding the foregoing, the term "Confidential Business
Information" shall not include the following: (v) any information which was
independently developed by a party without the use of the Confidential Business
Information; (w) any information which is or becomes available in the public
domain during the term of this Agreement; (x) any information which is ordered
to be released by requirement of a governmental agency or court of law; (y) any
information provided to a party's professional advisers (i.e., attorneys and
accountants); and (z) any information independently made lawfully available to a
party as a matter of right by a third party. Westbank and each Owner agrees that
these confidentiality covenants shall apply while an individual or entity is an
Owner and also at all times thereafter. Westbank and each Owner shall under no
circumstances use such Confidential Business Information in any way reasonably
perceived as detrimental to IOI.
10.4 NOT APPLICABLE. The restrictions set forth in this Section 10
shall not be deemed: (i) to prevent Westbank or any Owner from acquiring through
market purchases and owning, solely as an investment, less than five percent
(5%) in the aggregate of the equity securities of any class of any issuer whose
shares are listed or admitted for trading on any United States national
securities exchange or are quoted on the National Association of Securities
Dealers Automated Quotations Systems, or any similar system of automated
dissemination of quotations of securities prices in common use, so long as the
ASC or such Owner is not a member of any "control group" (within the meaning of
the rules and regulations of the Securities and Exchange Commission) of any such
issuer; and (ii) to prohibit IOI from providing any services to Westside
Orthopaedic Clinic, a Louisiana professional corporation.
10.5 THIRD-PARTY BENEFICIARIES. All Affiliates of IOI, all successors
and assigns of IOI, and all successors and assigns of Affiliates of IOI are
third-party
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beneficiaries of the restrictive covenants contained in this Section 10 and the
provisions of this Section 10 are intended for the benefit of, and may be
enforced by any Affiliates of IOI, any of IOI's successors and assigns, or any
of the successors and assigns of any Affiliates of IOI.
10.6 SEVERABILITY. The covenants in this subsection are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth herein are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the maximum scope, duration and territory that
the court deems reasonable, and the Agreement shall thereby be reformed.
11. INDEMNIFICATION. Westbank hereby indemnifies, protects, and holds
harmless IOI and the Affiliates of IOI, and their shareholders, members,
officers, directors, employees, agents, successors and assigns, from and against
any and all losses, damages (direct and consequential), injuries, claims,
demands, costs, and expenses of whatsoever nature, including legal expenses at
any level of trial, appeal or arbitration, arising out of or in connection with
or incidental to: (a) any breach of this Agreement or misrepresentation herein
by Westbank or any Owner; (b) the conduct of Westbank's business; (c) the
performance of medical services at the ASC; or (d) the performance of any
intentional act, negligent act, willful act or omission to act by Westbank or
any Owner during the Term. The provisions of this Section 11 shall survive the
termination or expiration of this Agreement and shall be in addition to, and not
in limitation of, any other rights or remedies available to the indemnitee at
law or in equity, under this Agreement or otherwise.
12. INSURANCE.
12.1 INSURANCE TO BE MAINTAINED BY WESTBANK. During the Term, Westbank
shall maintain general liability insurance, property insurance, and
comprehensive professional liability insurance covering the ASC and all
ancillary professional personnel, with such carrier limits and coverages as
agreed upon by IOI and Westbank; provided, however, such professional liability
insurance shall provide coverage in at least those amounts and at least for such
periods as are required under applicable law. Westbank shall name IOI as a
co-insured on all professional liability policies obtained by Westbank during
the Term.
12.2 INSURANCE TO BE MAINTAINED BY IOI. During the Term, IOI shall
maintain comprehensive general liability insurance covering IOI and its
operations related to Westbank with such limits and coverages and with such
insurers as may be selected by IOI in its sole discretion.
12.3 TAIL INSURANCE. After the Term, Westbank shall purchase and
maintain extended reporting insurance coverage or prior acts coverage that names
Westbank and IOI as co-insureds, covering any professional liability claims made
which relate to services rendered at the ASC during the Term. Such insurance
policies shall provide
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minimum coverage in the per occurrence and aggregate amounts equal to the
amounts of coverage insuring the ASC on the date immediately proceeding the
applicable termination date.
13. DISPUTE RESOLUTION.
13.1 DISPUTES. All controversies, claims, rebutted matters and matters
of difference between the parties (collectively "Disputes") with respect to the
matters covered by this Agreement (expressly including but not by limitation,
matters relating to termination, payment or non-payment of the ASC Services
Fee), other than injunctions imposed to enforce the restrictive covenants set
forth in Section 10, shall be resolved in accordance with this Section.
13.2 NOTICE. In the event a party believes a Dispute exists, such party
shall notify the other party in writing specifying the nature of the Dispute.
Within fifteen (15) days after receipt of such notice, the parties shall meet to
discuss and attempt to resolve the Dispute.
13.3 MEDIATION. If the Dispute is not resolved as a result of the
meeting or if such meeting is for any reason not held, either party may schedule
a follow-up meeting (the "Second Meeting") at which an independent and neutral
mediator will be present and will preside. The mediator shall be a professional
mediator who is a member of a local, state or national mediation association or
society. The Second Meeting shall occur at the date set by the scheduling party
in the city of the party that instituted the Dispute resolution procedure at the
time and place designated by the scheduling party.
13.4 ARBITRATION. If, as a result of the first meeting or Second
Meeting or otherwise, the parties cannot resolve the Dispute, the Dispute shall
be submitted to arbitration (the "Arbitration") in Xxxxxxxxx Xxxxxxx, Louisiana
to be conducted according to the American Health Lawyers Association Alternative
Dispute Resolution Service, Rules of Procedure for Arbitration, from time to
time in force ("AHLA Arbitration Rules).
13.5 BINDING. This agreement to submit to Arbitration and to be bound
by the findings of Arbitration shall be specifically enforceable. Arbitration
may proceed in the absence of any party if notice as required under the AHLA
Arbitration Rules is given to such party. The parties agree to abide by all
awards rendered in such Arbitration proceeding. Such awards rendered pursuant to
Arbitration shall be final and binding on all parties. Any award or final
determination rendered pursuant to an Arbitration proceeding may be filed with
the clerk of one or more courts, state or federal, having jurisdiction over the
party against whom such award is rendered as a basis of judgment and the
issuance of execution or collection. No party shall be considered to be in
default under this Agreement during the pendency of Dispute resolution pursuant
to this Section.
13.6 EFFECTIVE AGREEMENT. Pending completion of Dispute resolution in
accordance with this Section, this Agreement shall remain in effect, including
but not by way of limitation, the obligation and duty of IOI to provide IOI
Services on behalf of
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Westbank and the duty and obligation of Westbank to timely pay the ASC Services
Fees as provided in this Agreement; provided, however, that if the parties
receive an opinion of health care counsel as described in Section 9.3(c) or
Section 9.4(g), then the parties shall not be required to comply with the
applicable provision deemed to be in violation of law.
13.7 EXPENSES. Each party shall bear its own expenses of any Dispute
resolution including Arbitration under this Section.
14. LEGAL EVENTS. In the event that any state or federal law, rule or
regulation, now existing or enacted or promulgated after the date hereof, is
interpreted by judicial decision, by applicable regulatory agency or by IOI
health care legal counsel in such a manner as to indicate that this Agreement or
any provision of this Agreement is in violation of such law, rule or regulation,
Westbank and IOI shall immediately work together to amend this Agreement as may
be necessary to cause the applicable provision of this Agreement to be in
compliance with such law, rule or regulation while preserving to the fullest
extent possible the underlying economic and financial arrangements between
Westbank and IOI without unnecessary substantial economic detriment to either
party. Should the parties be unable to agree to such amendment, the inability of
the parties shall be deemed to be a Dispute as defined in Section 13 of this
Agreement that shall be resolved in accordance with the mechanisms set forth for
Dispute resolution in Section 13.
15. GENERAL PROVISIONS.
15.1 ASSIGNMENT. Westbank shall not assign this Agreement without the
prior written consent of IOI. Additionally, this Agreement shall not pass by
operation of law, even if more than fifty percent (50%) of the membership
interests of Westbank are sold or exchanged, or if Westbank becomes a party to a
merger, consolidation or other business combination. IOI shall not assign this
Agreement, without prior written consent of Westbank, except that: (i) IOI shall
have the right to assign, transfer, sell or pledge its rights hereunder to any
Affiliate of IOI; (ii) IOI may assign this Agreement without the consent of
Westbank to a third party as part of a sale of substantially all of IOI's
business; (iii) IOI may assign this Agreement without the consent of Westbank to
any lending institution, for security purposes or as a collateral, from which
IOI obtains financing; and (iv) a merger, consolidation, change in shareholders
or controlling interests, or stock-for-stock exchange by IOI shall not be deemed
to constitute an assignment of this Agreement. "Affiliate of IOI" shall mean,
any corporation, proprietorship, partnership, limited liability company, or any
other business entity whatsoever that, directly or indirectly, owns or controls,
is under common ownership or control with, or is owned or controlled by, IOI.
For the purposes of this definition, the terms "controls" "is controlled by" and
"is under common control with" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity, whether through the ownership of voting securities, by
contract, or otherwise. Neither Westbank nor IOI is an affiliate of the other
for the purposes of this Agreement.
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15.2 AMENDMENTS. This Agreement shall not be modified or amended except
in writing, executed by the parties hereto.
15.3 WAIVER. The waiver of any term or condition of this Agreement must
be in writing and executed by the party being bound thereby. The waiver of any
term or condition of this Agreement shall not be construed as a waiver of any
other term or condition of this Agreement. No party hereto shall by any act
(except by written instrument in accordance with this Section), omission, delay,
indulgence or otherwise be deemed to have waived any right or remedy hereunder
or to have acquiesced in any default in or breach of any of the terms or
conditions of this Agreement. No failure to exercise nor any delay in exercising
on the part of any party hereto, any right, power or privilege hereunder shall
operate as a waiver of this Agreement or any provision hereof. No single or
partial exercise of any right, power or privilege under this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
15.4 NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties
hereto. Neither this Agreement nor any other agreement contemplated hereby shall
be deemed to confer upon any party not a party hereto any rights or remedies
hereunder, whether as third-party beneficiaries or otherwise, except as provided
in Section 10.5.
15.5 ENTIRE AGREEMENT. All of the parties acknowledge and agree that
this Agreement, together with all of its exhibits, which are hereby incorporated
herein and made a part hereof in their entirety by this reference, and all other
documents specifically referenced herein constitute the entire agreement among
the parties regarding the subject matter hereof. This Agreement supersedes all
prior agreements and understandings, representations and warranties, both oral
and written, between the parties with respect to the subject matter hereof.
15.6 GOVERNING LAW. This Agreement and the rights and obligations of
the parties under this Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Louisiana without regard to
conflicts of law principals. The parties hereto agree that any suit, proceeding
or action arising out of this Agreement may be brought only in Xxxxxxxxx
Xxxxxxx, State of Louisiana.
15.7 SEVERABILITY. Subject to Section 14, if any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws effective during the Term, such provision shall be fully severable
and this Agreement shall be construed and enforced as if such illegal, invalid
or unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect, and shall not be
affected by illegal, invalid or unforceable provisions or by their severance
here from.
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15.8 HEADINGS. The paragraph headings set forth in this Agreement are
for convenience of reference only and shall not limit or otherwise affect any of
the terms or provisions hereof.
15.9 DRAFTSMAN. This Agreement shall be construed equally with
reference to both parties regardless of which party may have served as the
draftsman.
15.10 NOTICE. Whenever this Agreement requires or permits any notice,
request or demand from one party to the other, the notice, request or demand
must be in writing to be effective and shall be deemed to be an effective notice
if: (a) personally delivered; (b) delivered by fax or courier to the proper fax
number or address as the case may be; or (c) deposited in U.S. Mail, first
class, postage prepaid and properly addressed to the party at the address
reflected below:
IOI: IOI Management Services of Louisiana, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Copy to: XxXxxxxxx, Will & Xxxxx
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Fax: 000-000-0000
Attention: Xxx X. Xxxxxxx, Esq.
Westbank: Westbank Ambulatory Care Center, LLC
0000 Xxxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
A notice shall be deemed received: (i) if delivered by personal delivery, on
the date delivered; (ii) if delivered by fax, on the date confirmed; (iii) if
delivered by courier, on the date delivered; and (iv) if delivered by U.S.
Mail, three (3) days after mailing.
15.11 COUNTERPARTS. This Agreement may be executed in multiple
counterparts with each counterpart being deemed an original and all together
constituting one (1) instrument.
15.12 REQUIREMENT OF GOOD FAITH. Wherever this Agreement provides for a
determination, decision, selection, consent, approval or adoption by either
party hereto, the determination, decision, selection, consent approval or
adoption by said party shall be made in good faith by said party.
15.13 AUTHORIZED PERSONS. Whenever any consent, approval or
determination of a party is required pursuant to this Agreement, such consent,
approval or determination
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shall be rendered on behalf of the party by the person or persons duly
authorized to do so, which the other party shall be justified in assuming means
any officer of the party rendering such consent, approval or determination, or
such party's board of directors or board of managers.
15.14 FURTHER ASSURANCES. Each party shall, at the reasonable request
of any other party hereto, execute and deliver to such other party all such
further instruments, assignments, assurances and other documents, and take such
actions as such other party may reasonably request in connection with the
carrying out of this Agreement.
15.15 REMEDIES CUMULATIVE. 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 a 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 may be deemed expedient.
15.16 FORCE MAJEURE. No party shall be liable nor deemed to be in
default for any delay or failure in performance under this Agreement or other
interruption of service or employment deemed to result, directly or indirectly,
from acts of God, civil or military authority, acts of public enemy, war,
accidents, fires, explosions, earthquakes, floods, hurricanes, failure of
transportation, vandalism, strikes or other work interruptions beyond the
reasonable control of the party. However, all parties shall make good faith
efforts to perform under this Agreement in the event of any such circumstances.
15.17 ACCESS TO RECORDS. It is acknowledged and agreed by the parties
hereto that IOI and Westbank may be subject to the disclosure provisions
contained in the Social Security Act. In compliance with Section 1861(d)(i) of
the Social Security Act, as amended, either party shall make available upon
request from the Secretary of the Department of Health and Human Services or the
Comptroller General, or any of their duly authorized representatives, this
Agreement and any other documents and records of either party deemed necessary
by the requesting party to verify the nature and the extent of the costs hereof.
If either of such parties carries out any of its obligations hereunder through
subcontractors, pursuant to a contract for a value of TEN THOUSAND AND NO/100
DOLLARS ($10,000) or more, said party shall require such subcontract to contain
a provision allowing similar access. All parties' obligations hereunder and the
terms to be placed in any subcontracts shall provide that such contracts,
subcontracts, books and records shall be made available for a period of four (4)
years after the provision of services specified hereunder or under any of the
subcontracts.
15.18 SURVIVAL. Any provisions of this Agreement which by their nature
are intended to survive the termination of this Agreement, including without
limitation Sections 9.6, 10, 11, and 12.3, shall survive the termination of this
Agreement.
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16. DEFINITIONS. Each term listed in the left column below shall be
defined in the Section of this Agreement which is identified is the applicable
line of the right column below.
16.1 "Affiliate of IOI" Section 15.1
16.2 "Agreement" Introduction
16.3 "AHLA Arbitration Rules" Section 13.4
16.4 "Arbitration" Section 13.4
16.5 "ASC Collections" Exhibit A, Section 2.2
16.6 "ASC" Second Recital
16.7 "ASC Services Fee" Exhibit A, Section 1
16.8 "Base Services Fee" Exhibit A, Section 2.1
16.9 "Collateral" Section 7.4
16.10 "Commencement Date" Introduction
16.11 "Confidential Business Information" Section 10.3
16.12 "Controls" etc. Section 15.1
16.13 "Disputes" Section 13.1
16.14 "Equipment" Section 4.5
16.15 "Equipment Lease Fee" Exhibit A, Section 2.4
16.16 "Extension Term" Section 9.2
16.17 "Initial Term" Section 9.1
16.18 "IOI" Introduction
16.19 "IOI Services" Section 4.1
16.20 "Late Fee" Section 7.3
16.21 "LLC Agreement" Section 4.11
16.22 "Master Lease" Section 4.4
16.23 "Medical Director" Section 5.3
16.24 "Medical Staff" Section 3.2
16.25 "Medical Staff Physicians" Section 5.4
16.26 "Owner" Section 10.1
16.27 "Premises" Section 4.3
16.28 "Real Estate Lease Fee" Exhibit A, Section 2.3
16.29 "Second Meeting" Section 13.3
16.30 "Term" Section 9.2
16.31 "Termination Date" Section 9.5
16.32 "Territory" Section 10.1
16.33 "Westbank" Introduction
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IN WITNESS WHEREOF, the parties hereto have executed this AMBULATORY
SURGERY CENTER SERVICES AGREEMENT as of the date first above written.
IOI:
IOI MANAGEMENT SERVICES OF
LOUISIANA, INC., a Louisiana corporation
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------------------
Print Name: Xxxx Xxxxxxxxxxx
-----------------------------------------
Its: Chief Operating Officer
-------------------------------------------------
ASC:
WESTBANK AMBULATORY CARE
CENTER, LLC, a Delaware limited liability
company
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------------------
Print Name: Xxxx Xxxxxxxxxxx
-----------------------------------------
Its:
-------------------------------------------------
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EXHIBIT A
ASC SERVICES FEE
1. Calculation of ASC Services Fee. The "ASC Services Fee" with respect to
each calendar month during the Term shall equal the sum of: (i) the Base
Services Fee for such month; plus (ii) the Real Estate Lease Fee for such month;
plus (iii) the Equipment Lease Fee for such month. If the Term begins or ends in
the middle of a calendar month, the ASC Services Fee for the time period prior
to the beginning of the first calendar month during the Term or after the last
full calendar month during the Term, as applicable, shall be pro-rated as
applicable.
2. Definitions.
2.1 Base Services Fee. "Base Services Fee" with respect to each
calendar month during the Term shall equal five percent (5%) of the ASC
Collections received during the immediately prior calendar month.
2.2 ASC Collections. "ASC Collections" shall mean all payments,
whether such payments are partial payments or payments in full, that Westbank
actually receives for ambulatory surgery services and items rendered at or
provided by the ASC, and all other collections generated at or on behalf of
Westbank, regardless of whether such collections are received from patients,
private or prepaid insurance, or other third-party payors, as reduced by
refunds and chargebacks.
2.3 Real Estate Lease Fee.
(a) "Real Estate Lease Fee" shall equal the total sum owed by
IOI to the Landlord, financiers, lenders and any other party during the
applicable calendar month, for rent, common area maintenance fees, taxes,
tenant improvements, principal and interest payments related to loans with
respect to tenant improvements or for any other items, and every other cost or
expense of every type and nature whatsoever, related to the Premises.
(b) Subject to Section 2.3(c), of this Exhibit A, the base
Real Estate Lease Fee for the first twelve (12) calendar months of the Term is
estimated to equal THREE HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($310,000.00),
and shall be payable in twelve (12) equal monthly installments. This figure is
only an estimate of the initial base Real Estate Lease Fee and the total Real
Estate Lease Fee shall be increased pursuant to Section 2.3(c).
(c) At all times during the Term, the Real Estate Lease Fee
shall equal the total amount due from IOI with respect to the Premises. At all
times during the Term, the Real Estate Lease Fee shall be increased at such
times and in the same amounts by which the amounts that IOI must pay to the
Landlord under the Master Lease, or to any other individual or entity, are
increased. Each time the fees under the Master Lease or
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any other agreement are increased, IOI shall provide written evidence of such
increase to Westbank, and thereafter, Westbank shall pay to IOI hereunder such
increased amount. The parties hereby acknowledge and agree that IOI shall not
receive any more, nor any less, as the Real Estate Lease Fee, than the total
amount that IOI must pay with respect to the Premises and that IOI will not
charge any additional fee to administer the lease of the Premises, other than
the sums set forth in the Base Services Fee.
(d) If IOI purchases the Premises at any time during the
Term, or if at any time during the Term, the ASC becomes located on a parcel of
real estate owned by IOI or any Affiliate of IOI, the Real Estate Lease Fee
shall equal the fair market rental value for the Premises, as adjusted from
time to time, as determined by an independent third party appraiser chosen by
IOI at such time.
2.4 Equipment Lease Fee.
(a) "Equipment Lease Fee" shall equal the total amount owed
by IOI to all lessors, financiers, lenders, and all other individuals and
entities for rent, principal and interest payments, maintenance fees, taxes and
every other cost and expense of every type and nature whatsoever, with respect
to all of the Equipment that is leased by IOI to Westbank hereunder during the
applicable month.
(b) Subject to Section 2.4(c) of this Exhibit A, the base
Equipment Lease Fee for the first twelve (12) calendar months of the Term is
estimated to equal TWO HUNDRED SEVENTY THOUSAND AND NO/100 DOLLARS
($270,000.00) and shall be payable in twelve (12) equal monthly installments.
This figure is only an estimate of the initial base Equipment Lease Fee and the
total Equipment Lease Fee shall be increased pursuant to Section 2.4(c).
(c) At all times during the Term, the Equipment Lease Fee
shall be increased at such times and in the same amounts by which the amounts
are increased that IOI must pay to all lessors, financiers, lenders and all
other individuals and entities with respect to all of the Equipment. Each time
any of IOI's fees related to the Equipment are increased, IOI shall provide
written evidence of such increase to Westbank, and thereafter, Westbank shall
pay to IOI such increased amount hereunder. The parties hereby acknowledge and
agree that IOI shall not receive any more, nor any less, as the Equipment Lease
Fee, than the total amount that IOI must pay to all lessors, financiers,
lenders and all other individuals and entities with respect to the Equipment
and IOI will not charge any additional fee to administer the lease of the
Equipment, other than the sums set forth in the Base Services Fee.
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