MANAGEMENT AGREEMENT - PRIVATE
This Agreement is entered into this 30th day of September, 1997, by and
between NEWCARE HOSPITAL CORPORATION, or its assigns, a Nevada corporation
("NewCare"), and TRI-CITY HEALTH CENTRE, INC. (the "Hospital"), a Texas non-
profit corporation located in Dallas, Texas.
RECITALS
WHEREAS, NewCare is a corporation which provides management assistance
and other administrative services to health care institutions; and
WHEREAS, the Hospital is a private, non-profit hospital comprised of a
general acute medical/surgical hospital, offering alcohol and drug treatment
services, psychiatric services, and various clinics, and Hospital is seeking
management assistance which will enhance revenue, decrease costs, improve cash
flow, and generally improve the operational efficiency of the Hospital; and
WHEREAS, the Hospital, through its Board of Directors, wishes to engage
NewCare, and NewCare wishes to provide services to the Hospital under the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties agree as follows:
TERM.
The term of this Agreement ("Term") shall commence on October 1, 1997
and shall terminate on September 30, 2002. Either NewCare or Hospital may
terminate this Agreement without cause or penalty, effective September 30,
2000, by giving written notice of termination to the other party at least
ninety (90) days prior to that date.
RETENTION OF AUTHORITY BY HOSPITAL; REPRESENTATIONS AND WARRANTIES.
Control Retained by Hospital. In providing services and expertise
hereunder, NewCare shall from time to time make recommendations to the
Hospital's Board of Directors (the "Board") regarding the business, policies,
operations, and assets of the Hospital; provided, however, that the Hospital,
through the Board, shall retain all decision-making authority and shall
exercise control over the business, policies, operation, and assets of the
Hospital, in accordance with the Hospital's Charter and Bylaws. NewCare shall
perform the services described in this Agreement in accordance with such of
the policies and directives of the Hospital as may be from time to time
provided to it in writing.
NewCare Reliance on Board Policies. The Board shall communicate in
writing all policies and directives to NewCare, and NewCare shall rely on and
assume the validity of communications from, and shall report to, the Board.
All matters requiring professional medical judgments shall remain the
responsibility of the Hospital's Board and the Hospital's Medical Staff and
allied health professionals. NewCare may rely on the recommendations of the
Hospital's Medical Staff (and their designated committees and departmental
chairmen) relative to the quality of professional services provided by
individuals with clinical privileges, and on the Board and the Medical Staff,
or any jointly appointed or Board appointed committee or representative as to
the adequacy and proper state of repair of all medical equipment and the
professional competency, training, and requisite supervision of nurses,
medical technicians, and other Medical Staff. NewCare shall have no
responsibility for such judgments.
The relationship between NewCare and the Hospital created by this
Agreement is one of principal and agent. The Hospital and NewCare are not
partners, joint venturers, or independent contractors, and it is agreed that
NewCare is acting solely as the agent of the Hospital in performing services
to be provided by NewCare within the scope of this Agreement.
Representations of the Hospital. The Hospital represents the following
to be true:
This Agreement has been duly authorized, executed, and delivered by the
Board as the governing body of the Hospital and represents the legal, valid,
and binding agreement of the Hospital and is enforceable against the Hospital
in accordance with its terms.
The execution, delivery, and performance of this Agreement by the
Hospital and consummation by it of the transactions contemplated hereby do
not: (a) require the consent, waiver, approval, license, or authorization of
any person or public authority which has not heretofore been obtained; (B)
violate any provision of law applicable to Hospital; (C) conflict with or
result in a default under, or create, any lien upon any of the property or
assets of Hospital pursuant to any agreement or instrument; or (D) violate any
judicial or administrative decree, regulation, or any other restriction of any
kind or character to which Hospital or Board is a party or by which Hospital
or any of its assets may be bound.
MANAGEMENT ASSISTANCE OF NEWCARE.
NewCare, through its CEO and CFO, and working with the personnel and
resources of the Hospital, will provide the following management assistance
during the Term of this Agreement. NewCare shall follow the policies and
directives of the Board or any committee thereof in discharging its duties
hereunder. Nothing in this Agreement is intended to alter, weaken, displace,
or modify the responsibility of the Board of the Hospital's direction and
control as set forth in the Hospital's Charter and Bylaws.
Hospital Personnel Matters. Except for the Key Personnel described in
Section 4 below, all Hospital personnel shall be employees or independent
contractors of the Hospital and shall be subject to the Hospital's personnel
policies. NewCare, as agent for the Hospital, shall assist in the enforcement
and administration of the personnel policies established by the Hospital and
communicated in writing to NewCare in hiring, managing, and discharging
Hospital employees; provided, however, that matters with respect to
professional competency shall be determined with the assistance of the
appropriate Hospital or Medical Staff committee. Furthermore, NewCare shall
assist the Hospital and its personnel director in determining the number and
qualifications of employees required for the efficient operation of the
Hospital and in establishing and revising wage scales, employee benefit
packages, in-service training programs, staffing schedules, and job
descriptions, all in order to accomplish the goals and objectives of the
Hospital and in accordance with policies and procedures established by the
Board.
Budgets. If requested by the Board during the Term of this Agreement,
NewCare shall assist with the preparation of an annual operating budget,
annual capital expenditures budget (if appropriate), and annual cash flow
projections, all designed to meet the goals and objectives of the Board. In
addition, as requested by the Board, NewCare will supply any appropriate
revisions to the foregoing to reflect material changes during the fiscal year.
If applicable, NewCare shall also compile, subject to the review of the Board,
any information the Hospital may be required to provide for the purpose of
rate review. Once the Board approves said operating budget, NewCare shall be
entitled to proceed with expenditures contemplated thereby without further
Board approval; provided, however, that the Board may modify said budget from
time to time by written resolution, which modification shall then become the
new authorization for expenditures.
Accounting. NewCare shall supervise the Hospital's accounting system
and shall supervise the preparation of monthly and annual balance sheets and
statements of income and loss. Annual statements shall be due following the
close of each fiscal year during the Term of this Agreement. Any fees charged
by the Hospital's independent auditors shall be the responsibility of the
Hospital.
Charges. NewCare shall supervise the issuance of bills and the
collection of accounts, in accordance with charge schedules and collection
policies established by the Board. NewCare shall be entitled to obtain on
behalf of the Hospital the assistance of one or more collection agencies, as
approved by the Board. NewCare shall carry out Board policy and exercise
reasonable care in managing the accounts and available cash of the Hospital by
maintaining accounts and/or certificates of deposit with a financial
institution or institutions authorized by the Hospital and by informing the
Hospital of the availability of any excess cash. The permitted investment of
any excess cash shall be made by NewCare only upon the written direction of
the Board.
Payments. NewCare shall exercise reasonable care in supervising the
application of the Hospital's funds to the timely payment of Hospital's
liabilities and other obligations. It is specifically agreed and understood,
however, that NewCare's obligations under this paragraph are subject to
availability of funds to make such payments. Nothing contained herein shall
obligate NewCare to make any such payments from its own funds or resources or
to advance any monies whatsoever to the Hospital. NewCare shall not be liable
either primarily or as guarantor for debts of the Hospital.
Expenditures. NewCare may reasonably rely on recommendations given to
NewCare by the Board or its designee as to the ordering of medical equipment
and supplies used in the diagnosis and treatment of patients. Under
purchasing policies established by the Board, NewCare shall have the authority
to commit the Hospital's funds for the purchase or lease of supplies, goods,
and services reasonably necessary to the operation of the Hospital and to
cause the Hospital to negotiate, enter into, administer, and terminate
contracts therefor.
Purchasing Program.
Access. NewCare will offer the Hospital access to any volume purchasing
program in which NewCare participates (the "Purchasing Program"), subject to
the requirements of the Purchasing Program. Under the Purchasing Program,
participating hospitals may have access to discounted prices on goods and
services. The Hospital may choose to participate in the Purchasing Program or
not, but if the Hospital chooses to participate in the Purchasing Program, the
Hospital must execute a written letter of understanding with the Purchasing
Program under which the Hospital agrees to comply with the requirements of the
Purchasing Program.
Administrative Fees. The Hospital acknowledges that NewCare and the
Purchasing Program may receive administrative fees from vendors in connection
with certain products that are purchased, licensed or leased by Hospital under
the Purchasing Program, including, without limitation, administrative fees for
providing marketing, distribution and promotion services to the Hospital.
Such administrative fees will equal 3% or less of the purchase price of the
goods or services provided by the participating vendor. NewCare shall
disclose to the Hospital in writing, on an annual basis, and to the Secretary
of Health and Human Services upon his or her request, the administrative fees
NewCare and the Purchasing Program receive as a result of Hospital's
purchases.
LIMITATION OF WARRANTIES. NewCare MAKES NO AND HEREBY DISCLAIMS ANY
WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
WITH REGARD TO ANY GOODS OR SERVICES PURCHASED OR USED BY THE HOSPITAL UNDER
THE PURCHASING AGREEMENTS.
Management Plan and Report. NewCare shall submit to the Board for its
review and approval an annual management plan (the "Management Plan") designed
to implement the goals and objectives of the Hospital which will set forth the
efforts, methods, and resources to be used by NewCare and the timetable to be
observed to achieve such goals and objectives. Upon acceptance of any
Management Plan, the Board hereby agrees to use its best efforts, and to cause
the Medical Staff to use their best efforts, to take or cooperate with the
actions recommended (to the extent such actions are within the control of the
Hospital, the Board, or the Medical Staff and not wholly within the control of
NewCare).
Limitations on NewCare's Duties. NewCare shall not have the authority
to:
enter into or terminate contracts with physicians on behalf of the
Hospital, except as the Board may specifically authorize from time to time,
but NewCare shall have the authority on behalf of the Hospital to negotiate
and administer such contracts.
enter into or terminate contracts with outside consultants on
behalf of the Hospital, except as the Board may specifically authorize from
time to time, but NewCare shall have the authority on behalf of the Hospital
to negotiate and administer such contracts.
purchase capital assets without the prior approval of the Board
unless such approval is deemed granted as part of an approved annual budget or
within Board policies and procedures.
enter into any leases which extend beyond the then current initial
or renewal term of this Agreement without the prior approval of the Board
unless such approval is deemed granted as part of an approved annual budget.
enter into collective bargaining agreements covering or purporting
to cover employees of the Hospital without approval of the Board.
Capital Improvement Loan. Provided the Option Agreement of even date
herewith is approved by the Attorney General of Texas, NewCare agrees to make
available to Hospital during the first twelve (12) months of this Agreement an
amount not to exceed TWO MILLION DOLLARS ($2,000,000) for the purpose of
making capital improvement expenditures in such amount and for such purposes
as Hospital and NewCare may agree. Any such amounts so advanced will be
evidenced by a promissory note bearing interest at a rate equal to the rate
paid by NewCare when borrowing funds (such rate currently being prime plus 3%)
and be repayable in full within sixty (60) months. The repayment of principal
and interest related to the Capital Improvement Loan shall be subordinate to
the payment of principal and interest on any tax exempt debt of the Hospital
then outstanding.
KEY PERSONNEL
Obligation to Provide. NewCare shall provide the Hospital with the
services of a hospital administrator ("CEO") and, beginning on the 20th day of
this Agreement (or earlier, if the Board so agrees), a controller ("CFO"),
each of whom shall be acceptable to the Hospital on a continuing basis. All
persons employed by NewCare whose full-time services are furnished to the
Hospital under this section are referred to as "Key Personnel". All Key
Personnel shall be employees of NewCare throughout the Term of this Agreement.
NewCare shall determine the amount and nature of and shall pay compensation
(as hereinafter described) to the Key Personnel for all services rendered by
them in connection with this Agreement. Nevertheless, the selection of Key
Personnel and their replacements shall be subject to the Board's approval,
which shall not be unreasonably withheld.
Covenant Not to Hire. Until one year following the termination or
expiration of the Term of this Agreement, the Hospital will not, and will not
permit any of its Affiliates to, employ or offer to employ any individual who
has been employed, at any time during the Term of this Agreement, by NewCare
unless (i) such Key Personnel were employees of the Hospital immediately prior
to their becoming Key Personnel or (ii) NewCare gives its written consent
thereto, which consent shall be within the sole discretion of NewCare.
Likewise, NewCare will not, and will not permit any of its Affiliates to,
employ or offer to employ any Hospital personnel, other than the Key
Personnel, until one year following the termination or expiration of the Term
of this Agreement unless the Hospital gives its written consent thereto. The
parties recognize and agree that monetary damages are not an adequate remedy
for a breach by a party of this covenant not to hire employees of the other
party. The parties agree that irreparable damage will result to a party and
its business from a breach of this covenant by the other party and that in the
event of a breach or a threatened breach of this covenant, in addition to
monetary damages, the injured party shall be entitled to an injunction
enjoining the other party from violating this covenant.
Reimbursement of Compensation. In addition to NewCare's management fee
hereunder, the Hospital shall, upon receipt of invoice, reimburse NewCare for
the costs and expenses associated with NewCare's provision of the Key
Personnel, including their salaries, taxes, fringe benefits, and business
expenses. The amount of salary reimbursable hereunder shall be subject to the
Board's approval, which shall not be withheld if the salary is within the
range for similar hospitals covered by the NewCare compensation program. The
term "fringe benefits" as used herein shall include all fringe benefits which
are or may become standard for administrative or managerial personnel of
NewCare (such as health insurance, disability insurances, life insurance,
retirement plans and, with respect to the CEO, automobile and automobile
expenses). The Hospital shall also reimburse NewCare for the interim living
expenses of the CEO and CFO, which include local lodging, food, local
transportation, other out-of-pocket expenses, and two trips home per month.
It is specifically understood and agreed that reimbursable compensation
for Key Personnel shall be considered a payroll obligation of the Hospital for
purposes of setting priorities for payments of Hospital obligations.
FEES AND EXPENSES.
Amount. The Hospital shall pay NewCare a base fee of $100,000 per month
during the term of this Agreement. In addition, the Hospital shall pay
NewCare a performance incentive during the term of this Agreement, if earned,
in an amount not to exceed a cumulative total of four percent (4%) of net
revenues billed per month, which will be based upon the accomplishment of
various objective measures of NewCare's performance which comply in all
respects with the requirements of U.S. Treasury Rev. Proc. 93-19 and Rev.
Proc. 97-13.
Expenses. In addition to NewCare's fee, the Hospital shall reimburse
NewCare for the expenses of the Key Personnel described in Section 4, as well
as the actual expenses of travel, lodging, meals, local transportation, and
other out-of-pocket expenses incurred by all NewCare other personnel and
consultants providing services under this Agreement. The Hospital shall have
no obligation to reimburse NewCare for entertainment expenses incurred by its
employees which are not related to the business of the Hospital. NewCare
shall use all reasonable measures to control expenses (such as using Holiday
Inn-level accommodations) and will submit detailed documentation to the
Hospital for all such expenses.
When Due. The base fees will be paid in equal monthly installments in
advance. Any performance incentive earned by NewCare during the term of this
Agreement shall be due and payable within 30 days of NewCare's presentation to
the Board of documentation of the accomplishment of the required goals. All
reimbursable expenses shall be due and payable within 14 days of the date of
invoice. The Hospital agrees to pay NewCare interest, at the rate of twelve
percent (12%) per annum, on all fees and reimbursable expenses not paid when
due, said interest to accrue from the date originally due until payment is
made. The Hospital agrees to be responsible for payment of all reasonable
legal fees and collection fees incurred by NewCare for collection of all past
due fees and reimbursable expenses. The base fee and performance incentive
shall be subordinate to the payment of principal and interest on any tax
exempt debt of the Hospital then outstanding.
DUTY TO COOPERATE.
The parties acknowledge that the parties' mutual cooperation is critical
to the ability of NewCare to perform its duties hereunder successfully and
efficiently. Accordingly, each party agrees to cooperate with the other fully
in formulating and implementing goals and objectives which are in the
Hospital's best interest.
OWNERSHIP OF INFORMATION; CONFIDENTIALITY.
NewCare Systems. NewCare retains all ownership and other rights in all
systems, manuals, computer software, materials, and other information, in
whatever form, provided by or developed by NewCare in the performance of its
obligations hereunder (hereinafter collectively referred to as "Systems").
The Hospital shall maintain the confidentiality of the Systems and shall not
duplicate or permit the duplication of any portion of the Systems. Any
Systems specifically developed for, or tailored for, the Hospital may be
retained by the Hospital following the termination of this Agreement.
NewCare Purchasing Agreements. The Hospital will not disclose the terms
or prices of any NewCare Purchasing Agreement to any third party unless
specifically authorized in writing to do so by NewCare.
Hospital Information. During the Term of this Agreement the Hospital
shall give NewCare full access to the Hospital, its facilities, and its
records. NewCare shall maintain the confidentiality of patient records,
charges, wages, marketing strategies, and other confidential information
regarding the Hospital, its patients, employees, and physicians, except to the
extent that disclosure is required by law. Further, NewCare will maintain the
confidentiality of the Hospital's proprietary computer systems, manuals, and
other proprietary information owned by or licensed to the Hospital and will
not disclose or permit disclosure of such information without the Hospital's
consent.
LICENSING; ACCREDITATION.
The Hospital shall take all steps reasonably necessary to keep the
Hospital fully licensed and, if eligible, duly accredited by the Joint
Commission for Accreditation of Healthcare Organizations or the American
Osteopathic Association, and NewCare shall cooperate in said endeavors. The
Hospital shall do nothing willful to jeopardize Medicare, Medicaid, or other
third-party reimbursement arrangements. Both the Hospital and NewCare shall
use all reasonable efforts to abide by all relevant laws, ordinances, rules,
and regulations of state, local, or federal governments.
INSURANCE.
Hospital. The Hospital has and shall maintain throughout the Term of
this Agreement the following minimum insurance coverage:
Comprehensive General Liability $1,000,000 per occurrence
$3,000,000 aggregate
Hospital Professional Liability $1,000,000 per occurrence
$3,000,000 aggregate
Directors' and Officers' Liability $1,000,000
Fidelity Bond $ 500,000
Immediately upon the effective date of this Agreement, the Hospital
shall cause NewCare to be named as an additional insured, with respect to this
Agreement, under the comprehensive general and hospital professional liability
policies. Its rights to invoke the protection of such policies shall be
severable from and independent of the Hospital's rights, and these policies
shall not be terminable or non-renewable except upon thirty (30) days prior
written notice to NewCare. Upon request, the Hospital shall give to NewCare a
copy of the endorsements naming NewCare as an additional insured. Such
insurance policies shall also contain endorsements which reflect the primary
liability of the Hospital's insurance carrier for all covered losses provided
for in this Section 9, notwithstanding any insurance which may be maintained
by NewCare or any Affiliate thereof covering such loss and provide for
extended coverage or "tail" insurance.
NewCare. NewCare has and shall maintain throughout the Term of this
Agreement, insurance with at least the limits of coverage listed in subsection
9(a) above, including Fidelity Insurance in an amount no less than $500,000
insuring against dishonesty and other wrongdoing by its employees, officers
and directors. Upon request, NewCare will furnish evidence of such insurance
to the Board.
ACCESS TO BOOKS AND RECORDS.
Upon the written request of the Secretary of Health and Human Services,
the Comptroller General, or any of their duly authorized representatives,
NewCare will make available those contracts, books, documents, and records
necessary to certify the nature and extent of the costs of providing services
under this Agreement. Such inspection shall be available up to 4 years after
the rendering of such services. If NewCare carries out any of the duties of
this Agreement through a subcontract with a value of $10,000 or more over a
12-month period with a related individual or organization, NewCare agrees to
include this requirement in any such subcontract. This section is included
pursuant to and is governed by the requirements of Public Law 96-499, Sec.
952, and the regulations promulgated thereunder.
BREACH.
In the event of a breach of any obligation or covenant under this
Agreement, other than the obligation to pay money, the nonbreaching party
shall give the breaching party written notice of the specifics of the breach,
and the breaching party shall have a 30 day cure period (the "Cure Period") in
which to cure the breach. Only if the breach is not cured within the
applicable Cure Period shall the nonbreaching party be entitled to pursue any
remedies it may have by reason of the breach. A waiver of any breach of this
Agreement shall not constitute a waiver of any future breaches of this
Agreement, whether of a similar or dissimilar nature.
TERMINATION OF AGREEMENT.
This Agreement may be terminated prior to the expiration of the Term
only as follows and as set forth in Section 1 above, and any such termination
shall not affect any rights or obligations arising prior to the effective date
of termination:
Breach. In the event of a breach of this Agreement which is not cured
within the Cure Period set forth in Section 11, "Breach", or in the event of a
breach as to which no Cure Period is provided by this Agreement, the
nonbreaching party may terminate this Agreement upon no less than 30 days'
notice; provided that in the event that the Hospital fails to make any payment
to NewCare when due, NewCare may terminate this Agreement immediately upon
notice to the Hospital and may cease providing services to the Hospital unless
such failure to pay is solely the result of those certain subordination
provisions contained herein. These remedies shall be in addition to any other
remedy available at law or in equity. Failure to terminate this Agreement
shall not waive any breach of this Agreement.
Representations. Either party may terminate this Agreement upon 30 days
written notice in the event any representation made by the other party herein
is found to be untrue in any respect which would have a material adverse
effect upon the financial condition or business operations of the other party
or would have a material adverse effect upon the ability of the Hospital or
NewCare to perform under this Agreement.
Casualty. In the event that the physical plant housing the Hospital is
destroyed or is so damaged that it is reasonably anticipated that the Hospital
will not within 90 days commence repair or reconstruction with a view toward
resuming full operation, then either party may terminate this Agreement upon
no less than 30 days notice, provided that such notice is given within 30 days
following the destruction or damage.
Insolvency. NewCare may terminate this Agreement upon 30 days notice in
the event the Hospital becomes insolvent or fails to pay, or admits in writing
its inability to pay, its debts as they mature; or a trustee, receiver or
other custodian is appointed for the Hospital for all or a substantial part of
the Hospital's property and is not discharged within 30 days; or any
bankruptcy reorganization, debt, arrangement, or other proceeding under any
bankruptcy or insolvency law or any dissolution or liquidation proceeding is
instituted by or against the Hospital and if instituted against the Hospital
is consented to or acquiesced in by the Hospital or remains for 60 days
undismissed; or any warrant or attachment is issued against any substantial
portion of the property of the Hospital which is not released within 30 days
of service.
Reorganization. In the event that the Hospital undergoes a
reorganization which materially alters NewCare's duties or is reasonably
anticipated to have a material effect on NewCare's ability to perform
satisfactorily its duties hereunder, then NewCare may terminate this Agreement
upon no less than 30 days notice given no later than 60 days following the
effective date of the reorganization.
Litigation. NewCare may terminate this Agreement upon 30 days written
notice in the event there is entered against the Hospital one or more
judgments or decrees which would have a material adverse effect upon the
financial condition or business operations of the Hospital or the Hospital's
ability to perform under this Agreement.
Licenses. NewCare may terminate this Agreement upon 30 days written
notice in the event any material license or certification required by Hospital
to operate cannot be obtained or is suspended, terminated, or revoked.
EFFECTS OF TERMINATION.
In the event of the termination of this Agreement for any reason,
NewCare shall immediately be paid all fees theretofore earned and reimbursed
for all expenses incurred for which reimbursement is required under this
Agreement and otherwise. This remedy shall be in addition to any other remedy
available at law or in equity. The termination of this Agreement for any
reason shall be without prejudice to any payments or obligations which may
have accrued or become due hereunder prior to the date of termination or which
may become due after such termination. If either party commences legal action
alleging any violation of this Agreement, the non-prevailing party shall pay
all costs and reasonable attorneys' fees incurred by the prevailing party in
connection with such action.
INDEMNIFICATION AND HOLD HARMLESS.
The provisions of this Section 14 shall survive the termination or
expiration of this Agreement. The Hospital shall defend, indemnify, and save
NewCare and its directors, officers, employees, representatives, agents and
attorneys harmless from and against any and all liability and expenses of any
kind, including without limitation attorneys fees and expenses arising from
claims by third parties in connection with the activities or operation of the
Hospital unless such liability resulted from (1) the sole negligence of
NewCare outside the scope of its authority under this Agreement or (2) the
willful misconduct or gross negligence of NewCare in the provision of services
under this Agreement. Such defense will be carried out by counsel
satisfactory to NewCare.
NOTICES.
All notices permitted or required by this Agreement shall be deemed
given when in writing and delivered personally or deposited in the United
States mail, postage prepaid, return receipt requested, addressed to the other
party at the address set forth below or such other address as the party may
designate in writing:
To NewCare: NewCare Hospital Corporation
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
To the Hospital: Tri-City Health Centre, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Chairman, Board of Directors
ASSIGNMENT.
NewCare may assign its rights hereunder without the prior written
consent of the Hospital.
BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their heirs, executors, administrators, assigns,
subtenants, successors in interest, and successors in ownership, operation, or
control of the Hospital.
LIMITATION OF LIABILITY.
NewCare's liability, if any, for loss or damages arising out of any
breach by NewCare of the provisions hereof shall in no event exceed the
aggregate fees paid NewCare by Hospital hereunder.
WAIVER OF TRIAL BY JURY.
Each party hereto hereby irrevocably waives any and all rights it may
have to demand that any action, proceeding or counterclaim arising out of or
in any way related to this Agreement or the relationships of the parties
hereto be tried by jury. This waiver extends to any and all rights to demand
a trial by jury arising from any source including, but not limited to, the
Constitution of the United States or any state therein, common law or any
applicable statute or regulations. Each party hereto acknowledges that it is
knowingly and voluntarily waiving its right to demand trial by jury.
CONFIDENTIALITY OF AGREEMENT.
NewCare and the Hospital agree that the terms and conditions of this
Agreement shall remain confidential, except with regard to the parties'
attorneys. Neither NewCare nor the Hospital shall distribute this Agreement,
or any part thereof, to any third party unless required by law to do so.
MISCELLANEOUS
Headings. Section heading are for convenience of reference only and
shall not be used to construe the meaning of any provision of this Agreement.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one agreement.
Severance. Should any part of this Agreement be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
validity and enforceability of the remaining portions.
Authority. Each individual signing this Agreement warrants that such
execution has been duly authorized by the party for which he or she is
signing. The execution and performance of this Agreement by each party has
been duly authorized by all applicable laws and regulations and all necessary
corporate action, and this Agreement constitutes the valid and enforceable
obligation of each party in accordance with its terms.
Law. This Agreement shall be construed in accordance with the laws of
the State of Texas.
Amendment. This Agreement may not be modified except in a written
document executed by the party to be charged.
Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto and supersedes all prior agreements and representations
with respect to the subject matter hereof.
ATTEST: TRI-CITY HEALTH CENTRE, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
Title:_________________________ Xxxxxxx Xxxxxxx
Chairman, Board of Directors
NEWCARE HOSPITAL CORPORATION
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
Title:_________________________ Title: President
