Exhibit 10.8
AGREEMENT
AGREEMENT made this 24th day of November 1997 (the "Effective Date")
by and between NASSAU RADIOLOGICAL GROUP, P.C., a New York professional service
corporation having an office at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000
"Licensor") and MOLECULAR RADIATION MANAGEMENT, INC., a New York corporation
having its office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Licensee").
W I T N E S S E T H:
WHEREAS, Licensor leases space at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxx Xxxx, 00000 (the "765 Premises") for Licensor's provision of medical and
other health care services pertaining to the practice of radiology (the
"Radiology Services"), pursuant to a lease by and between Xxxxxxx Commercial
Associates ("Xxxxxxx Commercial") and Licensor, dated May 1995, a copy of which
lease is available for review at the Licensor's office first above referenced
(the "765 Lease");
WHEREAS, Licensor leases space at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxx Xxxx, 00000 (the "700 Premises") for Licensor's provision of medical and
other health care services pertaining to the practice of radiology (the
"Radiology Services"), pursuant to a lease by and between Xxxxx Hotel Company
("Xxxxx Hotel") and Licensor, dated September 16, 1991, and Amendment dated
January 22, 1993, a copy of which lease is available for review at the
Licensor's office first above referenced (the "700 Lease" and together with the
765 Lease, collectively, the "Leases");
WHEREAS, Licensor operates equipment which is located at the 765
Office (as defined below), which includes the specific radiology equipment
identified on Exhibit A-1 (the "765 Equipment");
WHEREAS, Licensor operates equipment which is located at the 700
Office (as defined below), which includes the specific radiology equipment
identified on Exhibit A-2 (the "700 Equipment" and together with the 765
Equipment, collectively, the "Equipment") for use in its radiology practice,
which Equipment is either leased or owned by Licensor, copies of which leases
are available for review at the Licensor's office first above referenced (the
leases under which the Equipment is leased collectively being the "Equipment
Leases");
WHEREAS, Licensee is a New York corporation engaged in the business
of providing or arranging for the provision of office facilities, equipment and
management or administrative services to persons and entities engaged in the
practice of
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medicine and has entered into a management agreement with Xxxxxxx X. Order, P.C.
("Order"), to provide office facilities, equipment and management services
(collectively "Management Services") in connection with Order's performance of
Radiology Services;
WHEREAS, Licensee desires to license from Licensor and Licensor
desires to license to Licensee on a part-time basis (i) a portion of the 765
Premises and 700 Premises, including the shared use of common areas, as
described on Exhibits B-1 and B-2 hereto (the portion of the 765 Premises so
licensed, the "765 Office," the portion of the 700 Premises so licensed, the
"700 Office," and the 765 Office and the 700 Office, collectively the
"Offices"), and (ii) the Equipment on an exclusive basis during the Rental Time
(as defined in Section 1.1 hereof) to facilitate the provision of Management
Services to Order, pursuant to the terms and conditions described herein; and
WHEREAS, Licensor will provide Licensee with certain supplies (the
"Supplies") and services (the "Services"), as set forth on Exhibit C hereto, to
facilitate Licensee's provision of Management Services to Order within the
Offices, pursuant to the terms and conditions described herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, it is mutually agreed by the parties hereto as
follows:
1. Use and Maintenance of Offices and Equipment.
1.1 Licensor hereby licenses to Licensee and Licensee hereby
licenses from Licensor the Offices and Equipment, for the provision by Licensee
of Management Services to Order relating to the Order's performance of Radiology
Services, during such hours and on such days as set forth on Exhibit D hereto
and such other periods of time during normal business hours to which Licensor
and Licensee mutually agree, it being understood that upon Licensee's request
for such additional hours, Licensor shall use its reasonable efforts to make the
Offices and Equipment available during such hours after giving due consideration
to Licensor's need to use the Offices and Equipment for its own purposes.
Licensee shall, in turn consistent with the terms and conditions hereof, make
the Offices and Equipment available to Order, for provision of Radiology
Services. The total time that Licensee or Order utilizes the Offices is referred
to as, the "Rental Time." During the Rental Time, Licensee shall have exclusive
use of the Equipment to be operated, solely by employees and agents of Licensee
or Order who are qualified to use such Equipment. Additionally, during the term
of this Agreement, Licensor shall provide Licensee with the Supplies and the
Services.
1.2 Licensee shall ensure that the Radiology Services provided
by Order in the Offices are provided solely by licensed physicians, and/or
qualified
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technicians working under the general supervision of such physicians, who are
employed or engaged by Order.
1.3 Licensee shall not make any alterations, installations,
improvements, or additions, structural or non-structural, in or to the Offices
or Equipment.
1.4 Subject to the Leases and Equipment Leases, Licensee
hereby agrees that the Offices and Equipment will be used in compliance with any
and all statutes, laws, ordinances, and regulations of any governmental agency
applicable to the use of the Offices and/or Equipment and will at all times (a)
be used for the provision of the Management Services or the Radiology Services
provided by Order, and all services incidental thereto, solely during the Rental
Time and (b) in the case of the Equipment, shall be and remain in the Offices.
1.5 Licensee shall take reasonable care of the Offices and
Equipment and the fixtures and appurtenances therein or thereto. Licensor shall
clean, maintain and take good care of the Offices and the Equipment and shall
make all necessary repairs to the Offices and Equipment and comply with all
legal requirements regarding the maintenance and safety of the Equipment. If any
such repairs have been made necessary by misuse or neglect by Licensee or
Licensee's or Order's employees, agents, patients, or visitors, such repairs
shall be made by Licensor at Licensee's sole cost and expense.
2. Sign and Directory. Licensor shall have Licensee's and Order's
respective names posted on the directory located at the Premises and shall
permit Licensee and/or Order to display an appropriate sign identifying the
Offices as an office of Licensee and/or Order.
3. Patient Records. Licensee may store patient records of Order in
the Offices, separate and apart from those of Licensor. Licensee and Order shall
be solely responsible for the security and confidentiality of any and all of
Order's patient records in the Offices. Neither Licensee nor its employees or
agents shall have any access to Licensor's files, and Licensee shall have no
responsibility for such records.
4. License Fee.
4.1 Licensee shall pay Licensor an annual license fee set
forth on Exhibit E for the use of the Offices and Equipment and the provision of
the Supplies and Services (the "License Fee"), to be paid in equal monthly
installments on the first day of each month; provided, however, the rent payable
for the period from the Effective Date through January 31, 1998, shall be
payable on February 1, 1998.
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4.2 The License Fee shall be paid to Licensor in lawful money
of the United States at Licensor's address set forth at the head of this
Agreement or to such other person and/or at such other address as Licensor may
from time to time designate by notice to Licensee. No payment by Licensee or
receipt by Licensor of any lesser amount than the amount of the Licensee Fee
stipulated to be paid hereunder shall be deemed other than on account of the
earliest stipulated License Fee; nor shall any endorsement or statement on any
check or letter be deemed an accord and satisfaction. Licensor may accept any
check or payment without prejudice to Licensor's right to recover the balance
due or to pursue any other remedy available to Licensor.
5. Term. The term of this Agreement shall begin on the Effective
Date and shall continue for two (2) years therefrom, unless terminated earlier
pursuant to Section 12 hereof.
6. Renewal. This Agreement shall be renewed for additional one (1)
year terms upon the same terms, covenants, and conditions as are in this
Agreement unless either party shall give the other party at least sixty (60)
days' written notice prior to the end of the initial term or any renewal term,
as the case may be, of its intent not to renew, in which event the Agreement
shall terminate at the end of such initial term or renewal term.
7. Indemnity and Insurance.
7.1 Licensee agrees to indemnify and hold Licensor and
Landlord harmless from and against all claims of whatever nature arising from
any act, omission, or negligence of Licensee or Order, including but not limited
to malpractice claims, or Licensee's or Order's contractors, patients,
sublicensees, agents, servants, or employees occurring during the term hereof in
or about the Offices. This indemnity and hold harmless agreement shall include
indemnity against all costs, reasonable attorney fees, expenses, and liabilities
(collectively, "Damages") incurred in or in connection with any such claim or
proceeding brought thereon and the defense thereof.
7.2 Licensee shall maintain in full force and effect during
the term hereof and at its sole cost and expense a policy of general liability
insurance under which Licensee, Licensor, and Landlord are named as the insureds
and Order shall maintain professional liability insurance covering Order and its
physicians and its other employees and agents. Each such policy of insurance
shall provide coverage limit; of liability One Million Dollars ($1,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the aggregate. Licensee
shall take all actions necessary to maintain the general liability insurance,
and shall cause Order to take all actions necessary to maintain professional
liability insurance, in each case as may be required by law, including the
payment of applicable surcharges, and filing of all necessary reports. If
professional liability insurance is maintained by Order on a "claims made"
basis, Licensee shall cause Order to maintain, "tail" or "prior acts" coverage
to cover claims made after the
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termination of such insurance and Licensee shall be responsible for any Damages
incurred by Licensor resulting in whole or in part from the failure of Licensee
to cause such coverage to be maintained by Order.
7.3 The insurance coverage to be obtained and maintained
pursuant to Section 7.2 hereof shall be evidenced by a duplicate original or
certificate of such insurance, which shall be delivered to Licensor together
with evidence of payment of premiums.
7.4 Licensor agrees to indemnify and hold Licensee and Order
harmless from and against all claims of whatever nature arising from any act,
omission, or negligence of Licensor, including but not limited to malpractice
claims, or Licensor's or its contractors, patients, sublicensees (other than
Licensee or Order), agents, servants, or employees occurring during the term
hereof in or about the Offices. This indemnity and hold harmless agreement shall
include indemnity against all Damages incurred in or in connection with any such
claim or proceeding brought thereon and the defense thereof.
7.5 Licensor shall maintain in full force and effect during
the term hereof and at its sole cost and expense a policy of general liability
insurance under which Licensor, Licensee, and Order are named as the insureds
and a professional liability insurance covering Licensor and its physicians and
its other employees and agents. Each such policy of insurance shall provide
coverage limits of liability One Million Dollars ($1,000,000) per occurrence and
Three Million Dollars ($3,000,000) in the aggregate. Licensor shall take all
actions necessary to maintain the general and professional liability insurance,
in each case as may be required by law, including the payment of applicable
surcharges, and filing of all necessary reports. If professional liability
insurance is maintained by Licensor on a "claims made" basis, Licensor shall
maintain, "tail" or "prior acts" coverage to cover claims made after the
termination of such insurance.
7.6 The insurance coverage to be obtained and maintained
pursuant to Section 7.5 hereof shall be evidenced by a duplicate original or
certificate of such insurance, which shall be delivered to Licensee together
with evidence of payment of premiums.
8. Liens. Licensee shall not cause any mortgages, liens, security
interests, charges, encumbrances, or claims to be levied against the Offices or
the Equipment.
9. Assignment, Mortgage, and Sublet. Licensee shall not assign,
transfer by operation of law or otherwise, mortgage, pledge, or encumber this
Agreement or sublicensee the whole or any part of the Offices or the Equipment.
No assignmentor sublicensee subject to this Section 9 shall relieve Licensee
from any of its obligations hereunder.
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10. Representations, Warranties and Covenants of Licensee.
10.1 Licensee hereby represents and warrants to Licensor as
follows:
(a) To Licensee's knowledge, Order is duly authorized
to practice medicine in the State of New York. Licensee shall notify Licensor
immediately if and when Licensee learns, is advised of, or has reason to know
that such authorization of Order is suspended, revoked, or in any way
restricted.
(b) To Licensee's knowledge, all employees and agents
of Order who are providing Radiology Services in the Offices are duly licensed
to practice medicine or otherwise properly licensed in the State of New York to
perform such services. Licensee shall notify Licensor immediately if and when
Licensee learns, is advised of, or has reason to know that any of such licenses
are suspended, revoked, or in any way restricted.
11. Representations and Warranties of Licensor.
11.1 Licensor represents and warrants to Licensee as follows:
(a) Each of the Leases and the Equipment Leases is in
full force and effect, the rent payable under the Leases and Equipment Leases is
paid to date; there are no outstanding defaults or conditions that, with the
passage of time and notice, would give rise to a default under either the Leases
or the Equipment Leases and all consents under the Leases and Equipment Leases
required in connection with Licensor's execution, delivery and performance of
this Agreement have been obtained;
(b) The Equipment is in good working order, reasonable
wear and tear excepted.
12. Termination.
12.1 This Agreement shall terminate:
(a) upon the mutual written consent of Licensor and the
Licensee;
(b) upon not less than sixty (60) days' prior written
notice from either the Licensee or the Licensor to the other party;
(c) if an Event of Default (as defined in Section 13
hereof) occurs and the non-defaulting party shall have given the defaulting
party five (5) days' prior written notice of termination, in which event the
Agreement shall terminate on the date specified in such notice;
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(d) if, for any reason, the term of either of the
Leases shall terminate;
(e) if, for any, reason, the term of either of the
Equipment Leases shall terminate;
(f) if either Office is damaged by fire or any other
cause and cannot be repaired within sixty (60) days so that such Office can be
used substantially as set forth in Section 1 hereof;
(g) if the Equipment is damaged by fire or any other
cause and is not repaired or replaced within sixty (60) days;
(h) if either Office or any part thereof or any other
part of the Premises materially affecting Licensee's use of such Office be taken
by virtue of eminent domain, on the date when title vests pursuant to such
taking. Licensee shall not be entitled to any part of the award or any payment
in lieu thereof; or
(i) Order's license to practice medicine is suspended,
revoked or in any way limited or if Order is charged with any violation of state
or federal law involving moral turpitude.
12.2 Upon termination, Licensee shall quit the premises, leave
the Equipment in good condition, normal wear and tear excepted, and remove all
of Order's patient records and any other files of Licensee or Order from the
Offices promptly thereafter.
13. Event of Default. An Event of Default shall occur, if either
Licensor or Licensee:
(a) breaches any of its obligations established
hereunder, if such breach continues for thirty (30) days after receipt by
breaching party of notice specifying such breach; or
(b) becomes insolvent, or admits in writing its
inability to pay its debts as they become due, or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by such party or
if such party is adjudicated a bankrupt, or a xxxx in equity or other proceeding
for the appointment of a receiver for such party is filed, or if proceedings for
reorganization or for composition with creditors under any state or federal law
be instituted by such party, or if the real or personal property of such party
shall be levied upon or sold.
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14. Leases and Equipment Leases.
14.1 Licensee has heretofore reviewed the Leases and the
Equipment Leases.
14.2 This Agreement is subject and subordinate to the Leases
and the Equipment Leases, to all amendments thereof heretofore and hereafter
entered into, and to any termination thereof in accordance with each of their
terms and to all matters to which the Leases and/or the Equipment Leases are
subordinate.
14.3 Licensee covenants and agrees: (a) to perform and observe
all of the terms, covenants, conditions, and agreements of the Leases and the
Equipment Leases on the part of the Licensor to be performed thereunder, to the
extent that the same are not modified or amended by this Agreement; (b) not to
do or suffer anything to be done that would constitute a default under the
Leases or the Equipment Leases or would cause the Leases or the Equipment Leases
to be canceled, terminated, or forfeited by virtue of any rights of
cancellation, termination, or forfeiture reserved under the Leases; and (c) to
indemnify and hold harmless Licensor from and against all claims, liabilities,
losses, and damages of any kind whatsoever that Licensor may incur by reason of,
resulting from, or arising out of any such cancellation, termination, or
forfeiture by the acts or misconduct of Licensee.
14.4 Licensor represents that the copies of the Leases and of
the Equipment Leases is a true and correct copy thereof. Licensor agrees that it
will not voluntarily terminate the Leases or the Equipment Leases prior to the
expiration of the term of this Agreement, amend or modify the Leases or the
Equipment Leases in a manner materially adverse to the rights of Licensee
hereunder, and will make all payments due thereunder and will comply with the
terms thereof and will not default under the Leases or the Equipment Leases so
as to cause the Leases or the Equipment Leases to be terminated.
14.5 To the extent that any provisions of the Leases or
Equipment Leases may conflict or be inconsistent with the provisions of this
Agreement, whether or not any such inconsistency is expressly noted herein, the
provisions of this Agreement shall prevail; provided, however, that in no event
shall any greater rights be conferred upon the Licensee hereunder than are
conferred upon Licensor pursuant to the Leases or the Equipment Leases.
15. Change in Law. In the event that any federal, state, or local
statutes, laws, rules, or regulations, now existing or enacted or promulgated
after the Effective Date, are interpreted by a Governmental Authority (as
defined below) or in a written opinion of independent legal counsel in such a
manner as to indicate that this Agreement may be in violation of any such law,
rule, or regulation, either party hereto may elect to terminate this Agreement
immediately upon the issuance of such interpretation or opinion
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unless the parties hereto amend this Agreement in a manner that conforms with
such law, rule, or regulation. "Governmental Authority" means any and all
governmental, legislative, administrative, judicial, or regulatory agencies,
commissions, boards, bureaus, departments, bodies, instrumentalities, or other
authorities having jurisdiction over any or all of the parties to this Agreement
and/or the transactions contemplated hereby.
16. Miscellaneous.
16.1 Notices. All notices, consents, approvals, demands, and
requests that are required or desired to be given by either party to the other
hereunder shall be in writing and shall be sent by United States registered or
certified mail and deposited in a United States post office, return receipt
requested and postage prepaid. All notices, consents, approvals, demands, and
requests pursuant to this Agreement shall be addressed as follows:
To Licensor:
Nassau Radiology Group, P.C.
000 Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, M.D.
President
with copy to:
Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
To Licensee:
Molecular Radiation Management, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxxxx
with copies to:
Xxxxxxx Xxxxxx & Green, P.C Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx 0000 Xxxxxxxx
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New York, New York 10177 Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq. Attn: Xxxx X. Xxxxxxxxxxxx, Esq.
16.2 Headings. Section headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
16.3 Governing Law. This Agreement shall be interpreted and
given effect in accordance with the law of the State of New York (but not the
Conflicts of law).
16.4 Entire Agreement; Amendments. This Agreement expresses
the entire agreement between the parties, and no change, modification or
addition to this Agreement shall be valid unless in writing and signed by each
of the parties hereto.
16.5 Additional Instruments. Each party hereto agrees that it
will execute and deliver such further instruments and take such further action
as may be necessary to discharge, perform, or carry out any of their respective
obligations and agreements hereunder.
16.6 Assignment. Except as otherwise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon all
parties hereto and their respective successors and assigns.
16.7 Severability. In the event any paragraph or provision of
this Agreement is found to be void and unenforceable by a court of competent
jurisdiction the remaining provisions of the Agreement shall nevertheless be
binding upon the parties with the same effect as though the void or
unenforceable part had been severed or released.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
the day and year first set forth above.
LICENSOR
NASSAU RADIOLOGICAL GROUP, P.C.
By:
-----------------------------------------
Name: Xxxx X. Xxxxx, M.D.
Title: President
LICENSEE
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MOLECULAR RADIATION
MANAGEMENT, INC.
By:
-----------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: President
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EXHIBIT A-1
The 765 Equipment consists of the CT Scanner located on the third
floor of the 765 Office and the desk area on the westerly wall of the northeast
corner business office on the third floor and related storage, lighting and
seating.
X-0
XXXXXXX X-0
The 700 Equipment consists of the following:
1. The Siemens Lineator Accelerator 4-6-10MeV
2. The Precision Therapy 3-D Treatment Planner
3. The ISDN and/or T-1 lines for image transfer from 000 Xxxxxxx Xxxxxx to
000 Xxxxxxx Xxxxxx for 3-D Treatment Planner
4. The mold preparation and contour block cutting equipment
5. The treatment simulator
6. The blood count machine
X-0
XXXXXXX X-0
The 765 Office consists of the third floor CT Scanning room and the
northeast xxxxx business office on the third floor, including all of the
foregoing including access to common areas related thereto.
B-1
EXHIBIT B-2
The 700 Office consists of the third office on the first floor along
the eastern wall of the building and the adjacent examining room, the front
desk, kitchen, waiting room area, bathrooms, and the radiation therapy space on
the first floor, all of the foregoing including access to common areas related
thereto.
B-2
EXHIBIT C
(a) The Supplies consist of blood count materials, various and sundry drapes,
needles, intubating materials and other necessary supplies and wheelchairs
and TV polls, as may be required.
(b) The Services consist of non-medical personnel, including support
individuals and radiation therapy technicians who will be supplied during
the Rental Time referenced in Exhibit D.
C-1
EXHIBIT D
(a) The Rental Time at the 700 Office and for the 700 Equipment will be five
morning shifts of two hours daily each week, it being understood and
agreed that the Licensor reserves the right to cause such shifts to be
changed to mid-day or afternoon shifts of two hours upon reasonable notice
to the Licensee.
(b) The Rental Time at the 765 Office and for the 765 Equipment will be two
hours in the morning of each Wednesday of the week, it being understood
and agreed that the Licensor reserves the right to cause such two hour
periods to be changed to mid-day or afternoon periods of two hours and/or
to different days during each week upon reasonable notice to the Licensee.
D-1
EXHIBIT E
The License Fee referred to in Paragraph 4.1 of this Agreement shall
be $177,600 for the two year term of this Agreement, which amount shall be paid
as follows:
(a) $4,300 per month during each of the first twelve (12) months
of this Agreement; and
(b) $10,500 per month (or such other fair and reasonable amount as
the parties may agree upon on an annual basis for the Offices
and Equipment leased hereunder or as same may be expanded)
during each of the second twelve months of this Agreement.
E-1
