COLLOCATION AGREEMENT
BY AND BETWEEN
BARNET XXXXXXX EYE CENTER, P.L.L.C.
AND
PRIME/BDEC ACQUISITION, L.L.C.
COLLOCATION
AGREEMENT
This COLLOCATION AGREEMENT ("Agreement"), effective as of the 1st day of
September, 1999 (the "Effective Time"), is by and between BARNET XXXXXXX EYE
CENTER, P.L.L.C., an Arizona professional limited liability company ("BDEC"),
and PRIME/BDEC ACQUISITION, L.L.C., a Delaware limited liability company
("Company").
W I T N E S S E T H:
WHEREAS, the Company has been organized for the purpose of providing
facilities, equipment and non-physician personnel for the performance by
physicians of Refractive Surgery (as defined herein), for the marketing,
scheduling and management of Refractive Surgery, for the credentialing and
scheduling of physicians to perform Refractive Surgery and for the billing,
collecting and accounting for the use of the facility, equipment and
non-physician personnel (the "Business");
WHEREAS, BDEC has owned or leased assets for the performance by physicians
of Refractive Surgery, including, without limitation, certain space located in a
building at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 and certain space
located in a building at 000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxx (individually a
"Facility" and collectively the "Facilities") and in connection with each
Facility, equipment, instruments, computer software used in connection with the
equipment, certain leases and contracts, the leasehold improvements, furniture,
fixtures and other fixed assets and items of personal property used primarily in
or materially relied on for the performance of Refractive Surgery (the
"Equipment and Personalty");
WHEREAS, BDEC employs non-physician personnel (the "BDEC Employees") with
expertise and experience in assisting physicians in the performance of
Refractive Surgery, in credentialing and scheduling physicians for the
performance of Refractive Surgery in the Facilities, in performing the
scheduling of patients for Refractive Surgery in the Facilities, in performing
marketing, accounting, billing and collection services for the use of the
Facilities and in managing the Facilities and all non-physician aspects of
Refractive Surgery in the Facilities (the "Support Services");
WHEREAS, BDEC employs physician and non-physician executives (the
"Managers") with expertise and experience in the management of the Facilities,
the Equipment and Personalty, the Support Services and all other elements of a
Refractive Surgery center (the "Management Services");
WHEREAS, BDEC, Prime Medical Operating, Inc.("Prime") and others entered
into that certain Contribution Agreement dated effective September 1, 1999 (the
"Contribution Agreement"), pursuant to which Prime, BDEC and others have
participated in a series of transactions that were completed simultaneously with
the execution and delivery of this Agreement, in which transactions the Company
became the owner of the Equipment and Personalty and the business conducted
therewith, excluding the practice of medicine, and in which transactions BDEC
agreed to provide to the Company the Facility and the Management Services and
Support Services on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby forever acknowledged and confessed, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Agreement shall mean this Collocation Agreement between the Company and
BDEC and any amendments hereto as may from time to time be adopted as
hereinafter provided.
1.2 BDEC shall mean Barnet Xxxxxxx Eye Center, P.L.L.C.
1.3 Buildings shall mean Building P and Building T.
1.4 Building P shall mean the building located at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, and known generally as the Barnet Xxxxxxx Eye Center.
1.5 Building T shall mean the building located at 000 Xxxx Xxxxx Xxxx,
Xxxxxx, Arizona, and known generally as the Barnet Xxxxxxx Eye Center.
1.6 Business shall mean the provision of facilities, equipment and
non-physician personnel for the performance by physicians of Refractive Surgery
(as defined herein), the marketing, scheduling and management of Refractive
Surgery, the credentialing and scheduling of physicians to perform Refractive
Surgery and the billing, collecting and accounting for the use of the facility,
equipment and non-physician personnel.
1.7 Business Expense shall mean all out-of-pocket costs and expenses
incurred by BDEC solely and exclusively in the performance of its duties and
obligations under, and in accordance with, this Agreement. Business Expense
shall also include that portion (allocated based on the relative percentage
amount of each such employee's time spent working directly on the Business of
the Company) of salaries, wages and benefits for those personnel employed by
BDEC to provide services hereunder, but only to the extent such employees (i)
work directly on the Business of the Company and (ii) are either listed on
Exhibit B hereto or are subsequently employed to replace such listed employees
or are added in the same service categories related to the Business as
corresponds to the service categories applicable to the employees listed on
Exhibit B. Business Expense shall also include a reasonable allocation of the
out-of-pocket costs incurred by BDEC related to hiring such personnel.
Notwithstanding the foregoing, Business Expense shall not include any portion of
the salaries, wages or benefits related to any personnel employed or otherwise
retained or contracted by BDEC who work in any of the following departments or
fall within any of the following categories: (a) accounting, (b) accounts
receivable, (c) purchasing, (d) practice operations, (e) management information
systems and facilities support, (f) human resources, (g) credentialing, or (h)
executive management. Furthermore, Business Expense shall not include any rent
or other costs or expenses incurred by BDEC pursuant to the Base Leases. For
illustration purposes, the parties agree that Business Expense for the Phoenix
Refractive Surgery center based on the pro forma annualized facility model
attached hereto as Exhibit A for the first full year of the Term of this
Agreement would be $1,663,638, being the sum of the categories on Exhibit A
marked with an asterisk. It is the intention of the parties that Business
Expense be consistent with the methodology reflected in Exhibit A.
1.8 Company shall mean Prime/BDEC Acquisition, L.L.C.
1.9 Facility and Facilities shall have the meaning given to it in the
recitals to this Agreement.
1.10 Premises P shall mean the Facility and other space located in Building
P to which the right to use is granted in Section 2.3 hereof.
1.11 Premises T shall mean the Facility and other space located in Building
T to which the right to use is granted in Section 2.3 hereof.
1.12 Refractive Surgery shall mean, collectively, any current and/or future
surgical procedures intended to correct myopia, hyperopia or astigmatism of the
eye, excluding procedures aimed only at restoring accommodation (presbyopia) and
procedures to treat only cataracts, glaucoma, oculoplastics or retinal
abnormality.
1.13 Services Fee shall mean BDEC's compensation established and described
in Article VI hereof.
1.14 State shall mean the State of Arizona.
1.15 Term shall mean the initial and any renewal periods of duration of
this Agreement as described herein.
ARTICLE II
RIGHT TO USE THE PREMISES
2.1 Base Lease. Section 2.3 contains a grant of a right to use Premises P
and Premises T and is subject and subordinate to the terms and conditions of
those certain leases as amended ("Base Leases") pursuant to which BDEC leases
the Building P and Building T.
2.2 Users of Buildings. Building P and Building T are used for multiple
activities, including, but not limited to, Refractive Surgery, office and clinic
activities of BDEC physicians and other professionals, an ambulatory surgery
center ("ASC") and marketing, accounting, management and other administrative
activities. The various activities in each Building do not necessarily have
specific or identified space and, in some instances, more than one activity uses
a space at the same time or at different times. BDEC designates, schedules and
modifies the location and the times that each activity can use space in the
Buildings.
2.3 Grant of Right to Use. In consideration of Company's payment to
BDEC of the Purchase Price, as defined in the Contribution Agreement, and on the
terms and conditions of this Agreement, BDEC hereby grants to the Company the
non-exclusive right to use for Refractive Surgery the spaces in the Buildings
where the Equipment and Personalty are located at the times during regular
business hours and in the manner designated by BDEC (but in no event less than
forty percent (40%) of the of the business hours during each week), which might
require the using of such space while the same or adjoining space is being used
by an ASC or on a cooperative schedule with an ASC. BDEC also grants to the
Company the non-exclusive right to use and to permit its guests and invitees to
use the common areas in accordance with the Base Leases. Notwithstanding that
the foregoing grants are non-exclusive, BDEC covenants and agrees that it will
not allow any person or entity, other than the Company, to utilize any space in
the Buildings, any Equipment and Personalty or any BDEC Employees for purposes
of conducting any component of the Business.
2.4 Term and Conditions of Grant. The grants set forth in Section 2.3 above
are each for the term and on the conditions, requirements, covenants, rules and
regulations of the Base Leases and subject to Company's paying its allocated
portion of the rent, common area charges and other payments required of BDEC
under the Base Leases.
2.5 Maintenance of Base Leases. Throughout the Term of this Agreement, BDEC
covenants and agrees to maintain all Base Leases in full force and affect,
without any breach or default by BDEC thereunder.
ARTICLE III
APPOINTMENT AND AUTHORITY OF BDEC
3.1 Appointment. The Company hereby appoints BDEC as its sole and exclusive
agent for the management and performance of day-to-day operations of the
Business in the Facilities, using the Equipment and Personalty, through the
provision of Management Services and Support Services, as defined herein, and
BDEC hereby accepts such appointment, subject at all times to the provisions of
this Agreement.
3.2 Authority. Consistent with the provisions of this Agreement,
directions given by the Company and operating and capital budgets established by
the Company, BDEC shall have the responsibility and commensurate authority to
provide, or cause to be provided, personnel, business and administrative
services for the Company, which shall include those services set forth in
Article III hereof. BDEC is hereby expressly authorized to provide all such
services in whatever manner BDEC, in good faith, deems appropriate and
consistent with commercially reasonable standards to meet the day-to-day
requirements of the business functions of the Company or related to the
Business. The authority of BDEC shall extend no further than is expressly
provided herein, and shall not be extended by implication or otherwise.
Notwithstanding anything contained herein to the contrary, BDEC shall have no
authority to speak on behalf of, or to bind, the Company with respect to any
third party.
3.3 Retained Authority. The Company shall at all times retain the ultimate
responsibility for the operation of the Business and, except as delegated to
BDEC herein or by resolution of Company's managers, shall retain the authority
and power and to make all decisions with respect to its assets and rights.
3.4 Nature of Relationship. The parties acknowledge and agree that no
partnership or other form of entity, or any joint and several liability, is
intended to be created by or between them by the execution or operation of this
Agreement, and none of the foregoing should be implied.
ARTICLE IV
COVENANTS OF BDEC
4.1 Management and Support Services. BDEC shall provide the Management
Services and Support Services necessary to operate the Business as it was
operated by BDEC prior to the Effective Time, including, but not limited to the
following:
4.1.1 Marketing and Scheduling. BDEC shall conduct marketing efforts for
the Facility and shall schedule patient treatment in the Facility, in the manner
that such services were performed prior to the Effective Time.
4.1.2 Physician Matters. BDEC shall credential physicians to perform
Refractive Surgery in the Facility and shall schedule physicians to use the
Facility in the manner that such services were performed prior to the Effective
Time.
4.1.3 Supplies. As agent for the Company, BDEC shall obtain all reasonable
medical, office, and other supplies, including stationery and forms, and shall
ensure that the Company is at all times adequately stocked with such supplies as
are reasonably necessary and appropriate for the operation of the Business.
4.1.4 Licenses and Permits. BDEC shall coordinate all development and
planning processes, and apply for and use BDEC's best efforts to obtain and
maintain all federal, state, and local licenses and regulatory permits required
for or in connection with the operation of the Business.
4.1.5 Contract Negotiations. BDEC shall negotiate, either directly or on
the Company's behalf, as appropriate, all contractual arrangements with third
parties as are reasonably necessary and appropriate for the Business.
4.1.6 Financial Matters. BDEC shall establish and administer accounting
procedures, controls, and systems for the development, preparation, and
safekeeping of records and books of accounts relating to the Company, all of
which shall be prepared and maintained in accordance with generally accepted
accounting principles consistently applied. BDEC shall prepare and deliver to
the Company, and each of its members, within thirty (30) days after the end of
each fiscal year of the Company, a balance sheet, a profit and loss statement,
and a statement of sources and applications of funds and changes in working
capital reflecting the financial status of the Company and as of the end of such
prior fiscal year, all of which shall be prepared in accordance with generally
accepted accounting principles consistently applied. Additionally, BDEC shall
prepare and deliver to the board of managers of the Company, and each of the
Company's members, monthly financial statements within ten (10) days after the
end of each month, and shall prepare and deliver to the board of managers of the
Company, and each of the Company's members, such other financial statements or
records as BDEC may from time to time deem appropriate or as the board of
managers of the Company, or its members, may reasonably request. On or before
ninety (90) days prior to the end of each fiscal year of the Company, BDEC will
prepare and deliver to the board of managers of the Company, and each of the
Company's members, a proposed operating budget of projected expenses and
revenues of the Company for the next fiscal year of the Company, and
representatives of BDEC shall make themselves reasonably available to the board
of managers and the members of the Company to explain such proposed budget and
the underlying assumptions.
4.1.7 Billing and Collection. BDEC shall be solely responsible for billing
and collecting for all services provided by Company and for the use of the
Facility and Equipment and Personalty. Company shall be entitled to all monies
collected by BDEC on behalf of Company.
4.1.8 Information Systems. BDEC shall provide and maintain the information
systems it deems necessary to operate the Business. BDEC shall have reasonable
discretion to select hardware and software, provided such hardware and software
shall be adequate to operate the Business in a commercially reasonable manner,
and BDEC shall be responsible for training employees to operate any such
systems.
4.1.9 Legal Actions. As requested by the Company, BDEC shall advise and
assist the Company in instituting or defending legal actions or proceedings by
or against third parties arising out of the Business, including, without
limitation, those actions necessary for the protection and continued operation
of the Company. BDEC shall have no authority to initiate, compromise or settle
any legal action in the name of the Company, or to confess a judgment in the
name of, or on behalf of, the Company.
4.1.10 Insurance. (a) BDEC shall obtain and maintain professional and
comprehensive general liability insurance and other insurance covering Company
for the risks and in the amounts typically carried by others in the same
business as Company.
(b) BDEC shall obtain and maintain appropriate workers' compensation
coverage for BDEC's personnel and shall carry professional and comprehensive
general liability insurance covering all BDEC personnel in amounts that BDEC
deems necessary, the cost of which insurance shall be a Business Expense.
4.2 Personnel. BDEC shall employ or otherwise retain, and shall be
responsible for interviewing, selecting, hiring, training, supervising,
scheduling, and terminating, non-physician personnel as BDEC deems reasonably
necessary and appropriate for the performance of Management Services and Support
Services. Such personnel may include temporary or "floater" personnel who are
retained by BDEC to substitute for permanent personnel. BDEC shall have sole
responsibility for determining the salaries, wages, and fringe benefits of all
such personnel, for paying such salaries and wages, and for providing such
fringe benefits, and for withholding, as required by law, any sums for income
tax, unemployment insurance, social security, or any other withholding required
by applicable law or governmental requirement. BDEC shall have sole discretion
in decisions regarding the termination of personnel employed by BDEC to provide
services to the Company. BDEC shall indemnify the Company and the Compan s
managers and members and hold them harmless from and against any claim or cause
of action which alleges or is based upon any act or omission by BDEC or its
owners, managers, directors, officers or employees with respect to any employee
or former employee of BDEC. This indemnity obligation shall survive any
termination or expiration of this Agreement.
4.2.1 Non-Exclusivity. In recognition of the fact that the personnel
retained by BDEC to provide services pursuant to this Agreement may from time to
time perform services for others, this Agreement shall not prevent BDEC from
performing such services for others or restrict BDEC from using such personnel
in the performance of services for other parties which are not in the same
business as Company.
4.2.2 Equal Employment Opportunity. Without limitation of any
provision set forth herein, BDEC expressly agrees, for itself and on behalf of
the Company, to abide by any and all applicable federal and/or State equal
employment opportunity statutes, rules, and regulations, including, without
limitation, Title VII of the Civil Rights Act of 1964, the Equal Employment
Opportunity Act of 1972, the Age Discrimination in Employment Act of 1967, the
Equal Pay Act of 1963, the National Labor Relations Act, the Fair Labor
Standards Act, the Rehabilitation Act of 1973, the Occupational Safety and
Health Act of 1970, and the Americans with Disabilities Act, all as may from
time-to-time be modified or amended.
4.2.3 Labor Reports. BDEC shall for its own account or on behalf of the
Company, as appropriate, prepare, maintain, and file all requisite reports and
statements regarding income tax withholdings, unemployment insurance, social
security, workers' compensation, equal employment opportunity, or other reports
and statements required with respect to personnel provided by BDEC pursuant to
this Agreement and with respect to all personnel employed or otherwise retained
by the Company.
4.3 Conduct of Business. BDEC represents and warrants to the Company that
it is authorized to enter into and perform this Agreement and its duties
hereunder without the consent or approval of any third party which has not been
obtained. BDEC covenants and agrees to provide all of the services required of
it hereunder, and to perform all of its obligations hereunder, in a commercially
reasonable manner and in compliance with all applicable laws and legal
requirements.
ARTICLE V
COVENANTS OF COMPANY
5.1 Notices to BDEC. Company will give BDEC timely notice of operating and
capital budgets approved by the Company and directions or requests that it has
with respect to the conduct of the Business or the manner in which BDEC performs
its duties hereunder in order that BDEC shall have an opportunity to comply with
such budgets, directions or requests.
5.2 Invoices and Payment. BDEC shall deliver to the board of managers of
the Company, and to each of the members of the Company, monthly invoices setting
forth the Services Fee, Use Fees, and expense reimbursement due BDEC for the
immediately preceding month, together with such supporting documentation as
shall be reasonably necessary to document the calculation and incurrence of such
amounts in accordance with the terms of this Agreement. The Company will pay, or
authorize BDEC in writing to pay, the invoiced amounts properly due within ten
(10) days after receipt of such invoice, unless any of such amounts are
contested in good faith.
ARTICLE VI
FINANCIAL ARRANGEMENT
6.1 Amount of Services Fee. As compensation (the "Services Fee") for the
Management Services and Support Services to be rendered hereunder, BDEC shall be
entitled to receive from the Company an amount equal to Two percent (2%) of the
Company's Net Revenues (as hereinafter defined).
6.2 Determination of Net Revenues. For purposes of Section 6.1, "Net
Revenues" shall mean the total operating revenues of the Company net of revenue
deductions which include without limitation an allowance for contractual
allowances, discounts, professional fees, co-management fees and staff managed
fees and other uncollectible amounts, all as determined in accordance with the
methodology used in the preparation of Exhibit A hereto and otherwise in
accordance with generally accepted accounting principles consistently applied.
For illustration purposes, the parties agree that Net Revenues for the Phoenix
Refractive Surgery center based on the pro forma annualized facility model
attached hereto as Exhibit A for the first full year of the Term of this
Agreement would be $5,968,627.
6.3 Business Expenses. In addition to the Services Fee described in Section
6.1, the Company shall reimburse BDEC, upon submission by BDEC of an invoice and
necessary supporting documentation, for any Business Expense properly incurred
by BDEC in accordance with this Agreement.
6.4 Use Payment. Company agrees to pay (the "Use Payment") to BDEC on a
monthly basis as compensation for BDEC's grant to Company of the right to use
the Premises and common areas of the Buildings. The Use Payment for the Premises
in Building P shall be twelve percent (12%), and for the Premises in Building T
shall be thirty-six percent (36%) of the rent and all other costs and expenses
incurred by BDEC pursuant to the Base Lease for each of the respective building.
The Use Payment shall be paid in advance and shall be due and payable on the
first day of each month during the Term.
ARTICLE VII
TERM AND TERMINATION
7.1 Term. This Agreement shall be effective for an initial period (the
"Term") commencing on the Effective Date and ending September 1, 2004.
7.2 Termination. The Company may terminate this Agreement immediately upon
the occurrence of one of the following events:
(1) the dissolution or bankruptcy of BDEC; or
(2) after the expiration of a ninety (90) day period in which BDEC has
failed to remedy its failure to perform its duties under this Agreement after
having received written notice from the Company of BDEC's failure to perform its
duties under this Agreement, which notice must specify the failure to perform.
7.3 Termination by Agreement. In the event the Company and BDEC shall
mutually agree in writing, this Agreement may be terminated on the date
specified in such written agreement.
7.4 Effects of Termination. Upon termination of this Agreement, as
hereinabove provided, no party shall have any further obligations hereunder
except for (i) obligations accruing prior to the date of termination, and (ii)
obligations, promises, or covenants set forth herein that are expressly made to
extend beyond the Term, including, without limitation, payment of accrued money
due under Article VI, if any, and the authority and limited power of attorney
granted to BDEC herein, which shall survive until such time as such obligations,
promises, or covenants shall be fully paid and satisfied (all of which
provisions shall survive the expiration or termination of this Agreement).
Notwithstanding anything to the contrary herein, upon termination of this
Agreement for any reason, all accrued Service Fees, Business Expenses and Use
Payments, if any, shall become immediately due and payable to BDEC without
demand or notice.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices. Any notice, request, demand, instruction, communication, or
other document required, permitted, or desired to be given hereunder shall be in
writing and, except as otherwise provided for herein, shall be deemed
effectively given: (a) on receipt if delivered personally or by commercial
courier service or if sent by prepaid telex, telegram, by facsimile or by other
instantaneous electronic transmission device, or (b) on the fifth day after
deposit (unless a different date is shown on the return receipt) if sent postage
prepaid registered or certified United States mail, return receipt requested, as
follows:
Company: Prime/BDEC Acquisition, L.L.C.
0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx X-000
Xxxxxx, Xxxxx 00000
Attn.: President
Facsimile: (000) 000-0000
BDEC: Barnet Xxxxxxx Eye Center, P.L.L.C..
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
or to such other address, or to the attention of such other person or officer,
as either party may by written notice designate.
8.2 Governing Law. This Agreement has been executed and delivered in, and
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Texas. Proper venue for any action with respect to this Agreement
shall be Dallas County, Texas.
8.3 Assignment. Except as may be herein specifically provided to the
contrary, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, successors, and
assigns; provided, however, that neither party may assign its rights and
obligations under this Agreement without the prior written consent of the other.
8.4 No Waiver. The failure of either party to insist at any time upon the
strict observance or performance of any provision of this Agreement or to
exercise any right or remedy as provided in this Agreement shall not impair any
right or remedy of such party or be construed as a waiver or relinquishment
thereof with respect to subsequent defaults or breaches. Every right and remedy
given by this Agreement to the parties hereto may be exercised from time to time
and as often as may be deemed xpedient by the appropriate party.
8.5 Consents, Approvals, and Exercise of Discretion. Except as may be
herein specifically provided to the contrary, whenever this Agreement requires
any consent or approval to be given by either party, or either party must or may
exercise discretion, the parties agree that such consent or approval shall not
be unreasonably withheld or delayed, and such discretion shall be reasonably
exercised.
8.6 Severability. In the event any provision of this Agreement is held to
be invalid, illegal, or unenforceable for any reason and in any respect, such
invalidity, illegality, or unenforceability shall not affect the remainder of
this Agreement, if the remainder of this Agreement can be enforced to achieve
its purposes equitably to both parties.
8.7 Divisions and Headings. The division of this Agreement into articles,
sections, and subsections and the use of captions and headings in connection
therewith are solely for convenience and shall not affect in any way the meaning
or interpretation of this Agreement.
8.8 Sales and Use Tax. BDEC and the Company acknowledge and agree that
certain of the services to be provided by BDEC hereunder may be subject to state
sales and use taxes and that BDEC may have a legal obligation to collect such
taxes from the Company and to remit same to the State. The Company agrees to pay
the applicable state sales and use taxes in respect of the portion of the
Services Fee attributable to such services, and grants BDEC the right to
withdraw and disburse from the bank accounts of the Company amounts necessary to
timely and fully pay such taxes.
8.9 Entire Agreement. With respect to the subject matter of this
Agreement, this Agreement supersedes all previous contracts and constitutes the
entire agreement between the parties. Neither party shall be entitled to
benefits other than those specified herein. No oral statements or prior written
material not specifically incorporated herein shall be of any force and effect,
and no changes in or additions to this Agreement shall be recognized unless
incorporated herein by amendment in writing and signed by all parties hereto.
Such amendment(s) shall become effective on the date stipulated in such
amendment(s). The parties specifically acknowledge that, in entering into and
executing this Agreement, the parties rely solely upon the representations and
agreements contained in this Agreement and no others.
8.10 Audit Rights. During the Term of this Agreement and for a period
of two (2) years after any termination or expiration of this Agreement, the
Company and each of its members shall be entitled to audit and inspect the books
and records of BDEC for purposes of determining the propriety of all Business
Expenses, Services Fees and Use Payments charged to the Company under this
Agreement. BDEC agrees to maintain, throughout such period, detailed records
supporting all amounts charged to, or reimbursed by, the Company pursuant to
this Agreement and to cooperate fully with, and to make its employees and
records available during normal business hours to, the auditors or other
representatives of the Company or its members performing such audit. Audit
rights may not be exercised more frequently than once in every eighteen (18)
month period and all costs and expenses associated therewith shall be borne by
the party exercising audit rights unless any such inspection reveals that the
Company has overpaid, by at least $25,000, any amounts which should have been
properly paid or reimbursed to BDEC in accordance with the terms of this
Agreement. BDEC shall be entitled to receive at least thirty (30) days' prior
written notice of the exercise of audit rights prior to the beginning of such
inspection.
[Signature page follows]
SIGNATURE PAGE TO
COLLOCATION AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COMPANY: PRIME/BDEC ACQUISITION, L.L.C.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
BDEC: BARNET XXXXXXX EYE CENTER, P.L.L.C.
By: /s/ Xxxxxx X. Xxxxxx, M.D.
Xxxxxx X. Xxxxxx, M.D., manager
By: /s/ Xxxxx X. Xxxxxxx, M.D.
Xxxxx X. Xxxxxxx, M.D., manager
EXHIBIT A
Pro Forma Annualized
Facility Model
EXHIBIT B
EMPLOYEES
