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Exhibit 10.20
LABORATORY MANAGEMENT
AGREEMENT
by and between
KIDNEY CARE, INC.
and
RENAL CARE GROUP, INC.
Effective Date: February 12, 1996
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LABORATORY MANAGEMENT AGREEMENT
by and between
KIDNEY CARE, INC., AND RENAL CARE GROUP, INC.
TABLE OF CONTENTS
ARTICLE 1.
DEFINITIONS........................................................ 1
1.2 KCI.......................................................... 1
1.3 Laboratory................................................... 1
1.4 Professional Services........................................ 2
1.5 Pathologists................................................. 2
1.6 Laboratory Services.......................................... 2
1.7 Term......................................................... 2
ARTICLE 2.
RCG'S DUTIES....................................................... 2
2.1 Management Services.......................................... 2
2.2 Professional Services........................................ 2
2.3 Personnel.................................................... 2
2.3-1 Management and Clerical Personnel..................... 2
2.3-2 Technical Health Care Personnel....................... 3
2.4 Equipment Maintenance........................................ 3
2.5 Supplies..................................................... 3
2.6 Quality Assurance and Utilization Review..................... 3
2.7 Financial Services........................................... 3
2.7-1 Billing and Collection....................................... 3
2.7-2 Financial Matters..................................... 4
(a) Annual Budget..................................... 4
(b) Accounting and Financial Records.................. 4
(c) Access............................................ 4
2.8 Compliance With Laws, Rules, and Regulations.................. 4
2.9 Records and Reports Produced by RCG........................... 5
2.10 Insurance..................................................... 5
2.11 Indemnity..................................................... 5
2.11-1 RCG Indemnity......................................... 5
2.11-2 KCI Indemnity......................................... 6
ARTICLE 3.
KCI'S DUTIES....................................................... 6
3.1 Space and Facilities.......................................... 6
3.2 Equipment..................................................... 6
3.3 Insurance..................................................... 6
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3.4 Licensure and Certification............................................... 6
ARTICLE 4.
MANAGEMENT FEE................................................................. 6
4.1 Amount of Management Fee.................................................. 6
4.2 Payment of Management Fee................................................. 7
ARTICLE 5.
TERM AND TERMINATION........................................................... 7
5.1 Term...................................................................... 7
5.2 Termination............................................................... 7
5.2-1 Termination by Agreement........................................... 7
5.2-2 Damage or Condemnation of Laboratory............................... 7
5.2-3 Bankruptcy......................................................... 7
5.2-5 Default............................................................ 8
5.2-6 Termination Due to Legislative or Administrative Changes........... 8
5.2-7 Termination Due to Exercise of Purchase Option..................... 8
5.3 Effect of Termination in General.......................................... 8
5.4 Effect of Termination Pursuant to Purchase Option......................... 8
ARTICLE 6.
GENERAL PROVISIONS.............................................................. 9
6.1 Relationship of Parties.................................................... 9
6.2 Delegation and Assignment.................................................. 9
6.3 Notices.................................................................... 9
6.4 Amendments................................................................. 10
6.5 Governing Law.............................................................. 10
6.6 Severability............................................................... 10
6.7 Legal Costs................................................................ 10
6.8 Force Majeure.............................................................. 10
6.9 Nonwaiver.................................................................. 11
6.10 Interpretation............................................................. 11
6.11 Documents.................................................................. 11
6.12 Warranty of Authority...................................................... 11
6.13 Cooperation and Fair Dealing............................................... 11
6.14 Ambiguities................................................................ 11
6.15 Representations............................................................ 11
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LABORATORY MANAGEMENT AGREEMENT
THIS LABORATORY MANAGEMENT AGREEMENT is entered into this _____ day of April,
1996, effective as of February 12, 1996 ("Effective Date"), by and between
KIDNEY CARE, INC., a Mississippi not-for-profit corporation ("KCI"), and RENAL
CARE GROUP, INC., a Delaware corporation ("RCG").
RECITALS
WHEREAS, KCI owns a clinical laboratory facility ("Laboratory") located
in Jackson, Mississippi and desires to arrange for the timely and
cost-effective operation and management of its Laboratory; and
WHEREAS, as part of the arrangements, KCI desires that a pathologist
serve as Medical Director of its Laboratory who is properly qualified to assume
professional and clinical responsibility for the services furnished through the
Laboratory; and
WHEREAS, RCG has available expertise in the management, administration,
and supervision of clinical reference laboratory businesses and is ready,
willing and able to manage and operate the Laboratory; and
WHEREAS, KCI and RCG desire to have a clear written understanding of
their responsibilities and expectations, and therefore enter into this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, terms and conditions contained herein, the parties agree as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings ascribed thereto unless otherwise clearly required by the context in
which such term is used.
1.1 AGREEMENT. The term "Agreement" shall mean this Laboratory
Management Agreement and any amendments thereto as may be from time to time
adopted as hereinafter provided.
1.2 KCI. The term "KCI" shall mean Kidney Care, Inc., a
Mississippi not-for-profit corporation.
1.3 LABORATORY. The term "Laboratory" shall mean the laboratory
facility owned by KCI, which is located at 000X Xxxxxxxx Xxxx Xxxxx in Jackson,
Mississippi.
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1.4 PROFESSIONAL SERVICES. The term "Professional Services" shall
mean services furnished by pathologists, which shall include both medical
direction and professional medical services.
1.5 PATHOLOGISTS. The term "Pathologists" shall mean the
physicians rendering Professional Services as herein provided for or
contemplated, each of which shall: (1) be licensed to practice medicine; and
(2) maintain board certification or eligibility for certification by the
American Board of Pathology.
1.6 LABORATORY SERVICES. The term "Laboratory Services" shall mean
anatomic and clinical pathology services and other laboratory services relevant
to the provision of care for patients with End Stage Renal Disease, such as
water/dialysate testing.
1.7 TERM. The term "Term" shall mean the contract period provided
for under Section 5.1 of this Agreement.
ARTICLE 2.
RCG'S DUTIES
2.1 MANAGEMENT SERVICES. RCG shall provide business,
administrative, and full management services for KCI related to the operation
of the Laboratory, including, without limitation, day-to-day management
services, billing and collection services, financial record keeping and
reporting services, scheduling services, supervision of personnel, and other
business office services.
2.2 PROFESSIONAL SERVICES. RCG shall arrange for the provision of
clinical oversight services required in connection with the Laboratory Services
furnished through the Laboratory, which services will include the provision of
a Pathologist to serve as Medical Director of the Laboratory in compliance
with all licensure and certification requirements. RCG shall also arrange for
the provision of professional medical services by a Pathologist that are
required for Laboratory Services furnished through the Laboratory.
2.3 PERSONNEL.
2.3-1 Management and Clerical Personnel. RCG shall
employ or otherwise retain, and shall be responsible for selecting,
training, supervising, scheduling and terminating, all management
and clerical personnel as RCG deems reasonably necessary and
appropriate for RCG's performance of its duties under this
Agreement. RCG shall have sole responsibility for determining the
salaries, wages, and fringe benefits of all such management and
clerical personnel, for paying such salaries and wages and providing
such fringe benefits, for reimbursing travel, lodging, and ancillary
expenses incurred by such personnel in the course of fulfilling RCG's
duties under this Agreement, and for establishing and implementing
human resource policies for all such personnel. RCG shall also have
sole responsibility for withholding, as required by law, any sums for
income tax,
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unemployment insurance, social security, or any other withholding
required by applicable federal or state law. RCG shall
appoint an Administrative Director who shall be responsible for
administering the day-to-day operations of the Laboratory, and whose
duties shall include supervision of nonphysician personnel,
administrative and fiscal management, planning, scheduling and
budgeting.
2.3-2 Technical Health Care Personnel. RCG shall employ or
otherwise retain, and shall be responsible for selecting,
training, supervising, scheduling, and terminating all
technical health care personnel as RCG deems reasonably
necessary and appropriate to provide Laboratory Services
pursuant to this Agreement. RCG shall have sole responsibility
for determining the salaries, wages, and fringe benefits of
all such technical health care personnel, for paying such
salaries and wages and providing such fringe benefits, and for
establishing and implementing human resource policies for all
such technical health care personnel. RCG shall also have sole
responsibility for withholding, as required by law, any sums
for income tax, unemployment insurance, social security, or any
other withholding required by applicable federal or state law.
Technical health care personnel retained by RCG shall have
applicable licensure, experience, and training necessary to
provide the Laboratory Services. RCG shall appoint a
Laboratory Supervisor who shall be responsible for the
provision of clinical supervision (in conjunction with the
Medical Director) in compliance with all licensure and
certification requirements.
2.4 EQUIPMENT MAINTENANCE. RCG shall maintain all equipment
located in the Laboratory, which is provided by KCI in accordance with Section
3.2 hereof. The equipment shall be maintained by RCG in good and operable
condition, ordinary wear excepted.
2.5 SUPPLIES. RCG shall furnish all laboratory, office, and other
supplies necessary for the operation of the Laboratory and the provision of
services by personnel employed or otherwise retained by RCG pursuant to this
Agreement.
2.6 QUALITY ASSURANCE AND UTILIZATION REVIEW. RCG shall participate
in the development, implementation, and periodic review of quality assurance,
risk management, and utilization review programs to assure the consistency and
quality of all Laboratory Services provided through the Laboratory. RCG shall
also develop and periodically review a manual for the Laboratory setting forth
general policies, procedures, and protocols applicable to the provision of
Laboratory Services. RCG will participate with KCI in the formation and
maintenance of a laboratory service committee ("Committee"). The Committee
will oversee the operations of the Laboratory, including the quality assurance
and utilization review programs.
2.7 FINANCIAL SERVICES.
2.7-1 Billing and Collection. On behalf of and for the
account of KCI, RCG shall establish and maintain credit and billing
and collection policies and procedures, and shall be responsible for
the billing and collection of fees for Laboratory Services. RCG shall
advise and consult with KCI regarding the fees established by KCI
for Laboratory
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Services. In connection with the billing and collection services to be provided
hereunder, RCG shall xxxx patients, third-party payors, and contact purchasers,
in KCI's name and on KCI's behalf, for all Laboratory Services provided through
the Laboratory. RCG shall also collect and receive, in KCI's name and on KCI's
behalf, all accounts receivable generated by such xxxxxxxx and deposit all
amounts collected into the KCI Account, which account shall be established and
maintained by KCI.
2.7-2 Financial Matters.
(a) Annual Budget. Within thirty (30) days of execution of
this Agreement, RCG shall prepare, in consultation with
KCI, and deliver to KCI an operational budget for the
Laboratory setting forth an estimate of the KCI revenues and
expenses (including, without limitation, all costs associated
with the services provided by RCG hereunder). RCG shall use
its best efforts to perform its duties and obligations under
this Agreement such that the actual revenues, costs, and
expenses are consistent with the budget.
(b) Accounting and Financial Records. RCG shall establish and
administer accounting procedures, controls, and systems
for the development, preparation, and safekeeping of records
and books of accounts relating to the business and financial
affairs of KCI, all of which shall be prepared and maintained
on an accrual basis according to generally accepted accounting
principles. RCG shall prepare and deliver to KCI monthly
financial statements reflecting the financial status of KCI in
respect of the provision of Laboratory Services, which shall
include a balance sheet, a statement of income and expenses, and
a statement of cash flow. Additionally, RCG shall prepare and
deliver to KCI such other financial statements or records as
RCG may from time to time deem appropriate or as KCI may from
time to time reasonably request.
(c) Access. KCI shall have the right, at KCI's Expense, at
all reasonable times during normal business hours to
audit, examine, and make copies of books of account maintained
by RCG concerning the operation of the Laboratory.
2.8 COMPLIANCE WITH LAWS, RULES, AND REGULATIONS. All services provided
hereunder by RCG shall be performed in compliance with the certification
standards required by federal law under the Clinical Laboratory Improvement
Amendments of 1988 ("CLIA"), the State of Mississippi's licensure requirements,
the applicable standards for laboratories participating in the Medicare and
Medicaid programs, all other applicable laws and regulations, ethical and
professional standards, and the reasonable policies of KCI. RCG and KCI shall
use their best efforts to ensure that the Laboratory continuously maintains
status as a Medicare and Medicaid provider, CLIA certification, and
satisfactory performance on other appropriate laboratory surveys
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and testing programs.
2.9 RECORDS AND REPORTS PRODUCED BY RCG. RCG shall maintain a
record of specimens received by the Laboratory and an appropriate system for
identification of each specimen. Reports of all Laboratory Services performed
on such specimens shall be furnished to KCI and the requesting parties on a
timely basis taking into consideration the specific needs and circumstances of
each occasion and the requirements of any contractual agreements. RCG shall
retain or cause to be retained in a readily retrievable manner duplicate copies
of the reports of all Laboratory Services performed. All records, reports,
slides, tissue blocks, samples, and specimens shall be and remain joint property
of KCI, RCG, and of the Pathologists providing Professional Services with
respect thereto. All such property shall be created, maintained, and disposed
of by RCG in accordance with KCI policies, the requirements of CLIA, the
Medicare and Medicaid programs, and all applicable laws (including laws
governing confidentiality of patient information).
2.10 INSURANCE. During the Term or any extended Term of this
Agreement, and for the period of the applicable statute of limitations
thereafter (for which statute of limitations RCG's liability may be satisfied by
purchasing appropriate "tail" coverage), RCG shall continuously provide and
maintain for itself and all employees or agents providing Laboratory Services
under this Agreement, professional malpractice insurance and broad form
comprehensive public liability insurance with a responsible company authorized
to do business in the State of Mississippi, with policy limits which shall be
continuously sufficient to protect against the probable amounts of potential
judgments, and which shall initially with respect to malpractice insurance be in
an amount not less than $1,000,000 per occurrence and $3,000,000 in the
aggregate. RCG shall provide to KCI, initially after signing this Agreement
and thereafter periodically upon KCI's request, reasonable evidence of such
insurance and shall inform KCI of any proposed materially adverse changes in
such coverage at least thirty days prior to such proposed changes becoming
effective.
2.11 INDEMNITY.
2.11-1 RCG Indemnity. RCG shall indemnify, defend, protect,
and hold harmless KCI, its officers, trustees, agents, employees,
and independent contractors, upon written demand from and
against all claims, losses, liabilities, damages, awards, judgments,
assessments, costs, and expenses of any kind or nature, including
reasonable attorneys' fees, arising out of or in any manner related to
(i) RCG's failure to satisfy or perform its obligations and duties
arising under this Agreement, (ii) RCG's negligence, illegal or
wrongful misconduct, or intentional acts or omissions in connection
with the performance of its obligations and duties pursuant to this
Agreement, or (iii) the compensation, employment, retention or
termination of the persons furnishing services on behalf of RCG
pursuant to this Agreement, including, without limitation, all
compensation or salaries, employee benefits, federal and state
withholding taxes, compliance with federal and state wage-hour
obligations, and other applicable taxes and contributions to government
mandated employment related insurance and similar programs.
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2.11-2 KCI Indemnity. KCI shall indemnify, defend, protect,
and hold harmless RCG, its officers, trustees, agents, employees, and
independent contractors, upon written demand from and against all
claims, losses, liabilities, damages, awards, judgments, assessments,
costs, and expenses of any kind or nature, including reasonable
attorneys' fees, arising out of or in any manner related to (i) KCI's
failure to satisfy or perform its obligations and duties arising under
this Agreement, (ii) KCI's negligence, illegal or wrongful misconduct,
or intentional acts or omissions in connection with the performance of
its obligations and duties pursuant to this Agreement, or (iii) the
compensation, employment, retention or termination of the persons
furnishing services on behalf of KCI pursuant to this Agreement,
including, without limitation, all compensation or salaries, employee
benefits, federal and state withholding taxes, compliance with federal
and state wage hour obligations, and other applicable taxes and
contributions to government mandated employment related insurance and
similar programs.
ARTICLE 3.
KCI'S DUTIES
3.1 SPACE AND FACILITIES. KCI shall provide the current Laboratory
space for RCG's use in providing services under this Agreement. KCI shall
provide such space with heat, cooling, light, water, security, physical plant
requirements, special utility lines as reasonably required, reasonably
necessary fixtures, and reasonable housekeeping, laundry, maintenance, and
garbage services.
3.2 EQUIPMENT. KCI shall provide the equipment listed in Exhibit
1, which is currently located in the Laboratory. KCI shall consider and
evaluate all reasonable requests by RCG for the purchase of new equipment or
the update of the equipment listed on Exhibit 1, deemed necessary and
appropriate for the provision of Laboratory Services in the Laboratory. Upon
its sole discretion, KCI shall purchase or lease such additional equipment.
3.3 INSURANCE. KCI shall continuously maintain insurance, in such
amounts as KCI in its sole discretion shall determine, to cover losses arising
from all reasonably insurable risks, including damage to property, plant and
equipment, general liability and malpractice risks.
3.4 LICENSURE AND CERTIFICATION. KCI shall apply for and maintain
all licensures and certifications relating to operation of the Laboratory,
including, but not limited to, CLIA certification, and certification as a
provider under the Medicare and Medicaid programs.
ARTICLE 4.
MANAGEMENT FEE
4.1 AMOUNT OF MANAGEMENT FEE. KCI agrees to pay RCG a fixed annual
fee of $250,000 for services furnished under this Agreement. KCI shall also
reimburse RCG for Direct Expenses incurred by RCG in providing services under
this Agreement. The term "Direct Expenses" shall mean: (1) payroll expenses
associated with the technical health care, management
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and clerical personnel provided by RCG in accordance with Section 2.3-2
hereunder; (2) expenses incurred in providing laboratory supplies; and (3)
costs incurred in maintaining the equipment listed on Exhibit 1, as may be
added to from time to time pursuant to Section 3.2 hereof.
4.2 PAYMENT OF MANAGEMENT FEE. KCI shall pay RCG the monthly pro
rata amount of the fixed annual fee specified in Section 4.1 above by the 10th
day of the month for services furnished during the month then ended. RCG shall
invoice KCI on a monthly basis for all Direct Expenses incurred in the month
then ended, which invoices shall separately state the amount of Direct Expenses
that are payroll expenses associated with technical health care, management and
clerical personnel provided by RCG in accordance with Section 2.3-2 hereunder.
KCI shall pay the portion of such invoices relating to Direct Expenses that are
payroll costs within five (5) business days of receipt and the balance of such
invoices within ten (10) business days of receipt.
ARTICLE 5.
TERM AND TERMINATION
5.1 TERM. This Agreement shall be effective as of the Effective
Date and shall continue for an initial Term of one (1) year, unless sooner
terminated pursuant to Section 5.2 hereof. At the expiration of the initial
Term, and at the expiration of each renewal Term (if any) of this Agreement,
this Agreement shall be automatically renewed for a further Term of one (1)
year, unless at least ninety (90) days prior to the date of such expiration
either party has provided written notice to the other party stating an intent
not to renew.
5.2 TERMINATION.
5.2-1 Termination by Agreement. In the event KCI and RCG
shall mutually agree in writing, this Agreement may be terminated on
the date specified in such written agreement.
5.2-2 Damage or Condemnation of Laboratory. In the event
that the Laboratory is totally or substantially destroyed by fire,
explosion, flood, windstorm, hail, earthquake, hurricane, tornado, or
other casualty or act of God, or in the event all or a substantial
portion of the Laboratory and the premises on which it is situated are
taken or to be taken by condemnation or eminent domain proceeding, then
either KCI or RCG may by written notice to the other immediately
terminate this Agreement.
5.2-3 Bankruptcy. In the event that either KCI or RCG
becomes insolvent, or if any petition under federal or state law
pertaining to bankruptcy or insolvency or for a reorganization or
arrangement or other relief from creditors shall be filed by or against
either such party, or if any assignment, trust, mortgage, or other
transfer shall be made of all or a substantial part of the property of
either such party, or if either such party shall make or offer a
composition in its debts with its creditors, or if a receiver, trustee,
or similar officer or creditor's committee shall be appointed to take
charge of any property of or to operate or wind up the affairs of
either such party, then the other party may, by
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written notice, immediately terminate this Agreement.
5.2-4 Nonpayment. In the event that KCI fails to make and
continues to fail to make for thirty (30) or more business days,
payment in accordance with Section 4.2 above, RCG shall have the option
and right to terminate this Agreement upon thirty (30) calendar days'
notice to KCI without waiving any other rights or remedies RCG may
have.
5.2-5 Default. In the event any party shall give written
notice to the other that such other party has substantially defaulted
in the performance of any material duty or material obligation (which
obligation must be for the benefit of the party giving notice) imposed
upon it by this Agreement, and such default shall not have been cured
within thirty (30) days following the giving of such written notice, the
party giving such written notice shall have the right to immediately
terminate this Agreement unless the defaulting party, within said
thirty (30) day period, shall have made a good faith effort to initiate
corrective action, and it is contemplated that such corrective action
will be completed within the following thirty (30) day period.
5.2-6 Termination Due to Legislative or Administrative
Changes. In the event that there shall be a change in federal or state
law, the Medicare or Medicaid statutes, regulations, or general
instructions (or in the application thereof), the adoption of new
legislation or regulations applicable to this Agreement, or the
initiation of an enforcement action with respect to legislation,
regulations, or instructions applicable to this Agreement, any of which
affects the continuing viability or legality of this Agreement or the
ability of either party to obtain reimbursement for services provided
by that party, then either party may by notice propose an amendment to
conform this Agreement to existing laws. If notice of such a change or
an amendment is given and if RCG and KCI are unable within thirty (30)
days thereafter to agree upon the amendment, then either party may
terminate this Agreement by giving thirty (30) days written notice to
the other, unless a sooner termination is required by law or
circumstances.
5.2-7 Termination Due to Exercise of Purchase Option. In the
event RCG exercises its option to purchase the Laboratory, set forth in
Section 3.7 of that certain Amended and Restated Transfer Agreement,
dated November 14, 1995, between RCG and KCI, this Agreement shall
terminate upon the transfer of the Laboratory to RCG.
5.3 EFFECT OF TERMINATION IN GENERAL. Unless otherwise provided in
this Agreement, upon termination neither party shall have any further
obligations hereunder, except for (i) obligations arising prior to the date of
termination which remain unsatisfied as of the date of termination and (ii)
obligations or covenants which expressly or necessarily extend beyond the Term
of this Agreement, including the obligations for the payment of the fees to RCG
through the date of termination in the manner described in Section 4 above.
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5.4 EFFECT OF TERMINATION PURSUANT TO PURCHASE OPTION. In the
event this Agreement is terminated pursuant to Section 5.2-7 hereof, RCG agrees
to acquire or assume responsibility for any item of equipment purchased or
leased by KCI pursuant to Section 3.2 hereof in accordance with the following:
(i) with respect to all equipment purchased by KCI pursuant to Section 3.2
hereof, RCG agrees to pay KCI the cost incurred by KCI in acquiring such
equipment, less accumulated depreciation determined in accordance with
generally accepted accounting principles; and (ii) with respect to all
equipment leased by KCI pursuant to Section 3.2 hereof, RCG agrees to assume
all remaining lease payments, including reimbursing KCI for the pro rata
portion of any lease payments covering periods exceeding the termination date
of this Agreement, and KCI agrees to assign all such leases to RCG.
ARTICLE 6.
GENERAL PROVISIONS
6.1 RELATIONSHIP OF PARTIES. RCG is and shall continue to be an
independent contractor for all services furnished pursuant to this Agreement by
RCG and its employees. RCG and its employees shall provide services hereunder
free of any direction or control by KCI, in a manner consistent with current
standards of practice. This agreement shall not expressly or by implication
create any employer/employee, joint venture or partnership relationship between
KCI and RCG or its employees. This Agreement shall not directly or by
implication obligate KCI to withhold income taxes for RCG or any of its
employees, or to provide employee benefits or coverage of any type for RCG or
its employees.
6.2 DELEGATION AND ASSIGNMENT. Except as expressly provided
herein, neither party shall delegate its duties or assign its rights under this
Agreement, in whole or in part, without the prior written consent of the other
party. Any attempt to do so without such consent shall be void and without
effect. Subject to the foregoing, the provisions of this Agreement and the
obligations arising hereunder shall extend to, be binding upon, and inure to
the benefit of the parties hereto and their respective heirs, successors,
assigns and legal representatives.
6.3 NOTICES. All notices, requests, demands or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be given to the party for whom the notice is intended
either (i) by personal delivery to the address for that party to which notices
are to be addressed (in which case such notice shall be deemed given on the
date of delivery), (ii) by consigning the same for prepaid delivery with a
responsible national courier service (e.g., Federal Express or other similar
service) (in which case such notice shall be deemed given on the business day
next following the date of consignment with the courier service), or (iii) by
telefax followed by a copy sent in either other manner specified in this
Section (in which case such notice shall be deemed given on the date on which
such telefax is sent), and properly sent to the following addresses and/or
telefax numbers:
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If to RCG:
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
If to KCI:
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Chief Executive Officer
A party to this Agreement may change its address for purposes of this Section
6.3 by giving written notice to the other party in the manner specified in this
Section 6.3.
6.4 AMENDMENTS. Any amendment hereto must be in writing and signed
by both parties hereto in order to be effective.
6.5 GOVERNING LAW. This Agreement and all rights, duties, and
obligations hereunder shall be construed and interpreted in accordance with the
internal laws, and not the law of conflicts, of the State of Mississippi
applicable to agreements made and to be wholly performed within the State.
Each party hereby agrees to submit to the jurisdiction and venue of any state
or federal court in Xxxxx County, Mississippi.
6.6 SEVERABILITY. Nothing contained in this Agreement shall be
construed so as to require the commission of an act contrary to law and
whenever there is any conflict between any provision of this Agreement and any
present statute, law, ordinance, or regulation contrary to which the parties
have no legal right to contract, the latter shall prevail, but in such event,
the provisions of this Agreement affected shall be curtailed and limited only
to the extent necessary to bring it within the requirements of the law and to
carry out the purposes of this Agreement.
6.7 LEGAL COSTS. In any dispute arising out of an alleged breach
of this Agreement, the prevailing party shall be awarded reasonable costs and
attorneys fees, in addition to its judgment or award.
6.8 FORCE MAJEURE. Neither party shall be liable nor deemed to be
in default for any delay or failure in performance under this Agreement or
other interruption of service or employment deemed resulting, directly or
indirectly, from acts of God, civil or military authority, riots or civil
disobedience, acts of public enemy, war, accidents, fires, explosions,
earthquakes, floods, failure of transportation, machinery, supplies or
utilities, vandalism, strikes or other work interruptions beyond the reasonable
control of any party. However, the parties shall make good faith efforts to
perform under this Agreement in the event of any such circumstances.
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6.9 NONWAIVER. Any waiver of any term and condition hereof must be
in writing and signed by the party giving the waiver. A waiver of any of the
terms and conditions hereof shall not be construed as a waiver of any other
terms and conditions hereof. Failure or delay of any party to insist upon
strict performance of any of the provisions if this Agreement, or to exercise
any right or action herein conferred, shall not be construed to be a waiver or
relinquishment of any such right and the same shall be and remain in full force
and effect.
6.10 INTERPRETATION. Titles in this Agreement are not part of this
Agreement and shall have no effect upon the interpretation of any part hereof.
As used in this Agreement the words "herein," "hereof," "hereunder," and
similar expressions refer to this Agreement as a whole and not to any
particular portion hereof, unless the context otherwise clearly requires. As
used herein the masculine gender includes the feminine and neuter genders, and
vice versa, and the singular the plural, and vice versa, where the context
reasonably permits. None of the provisions of the Agreement are for the
benefit of nor shall be enforceable by any third party, including clients,
employees, patients or creditors.
6.11 DOCUMENTS. Each of the parties hereto shall execute and deliver
all documents, papers, and instruments necessary or convenient to carry out the
terms of this Agreement.
6.12 WARRANTY OF AUTHORITY. Each person signing this Agreement
represents and warrants that he is duly authorized and executes this Agreement
on behalf of and as the free and voluntary act and deed of the organization he
purports to represent.
6.13 COOPERATION AND FAIR DEALING. Each party agrees to deal fairly
with the other in good faith in all matters concerning this Agreement, and
without limiting the generality of the foregoing agrees to cooperate in good
faith with the other party so that the purposes of this Agreement may be
served.
6.14 AMBIGUITIES. The general rule that ambiguities are to be
construed against the drafter shall not apply to this Agreement. In the event
that any provision of this Agreement is found to be ambiguous, each party shall
have an opportunity to present evidence as to the actual intent of the parties
with respect to such ambiguous provision.
6.15 REPRESENTATIONS. This Agreement contains the entire
understandings of the parties with respect to the subject-matters of this
Agreement and there are no other written or oral understandings or agreements
between the parties with respect to the subject matters of this Agreement other
than those contained herein. Each party acknowledges (i) that no
representation or promise not expressly contained in this Agreement has been
made by any other party hereto or by any of its agents, employees,
representatives or attorneys; (ii) that this Agreement is not being entered
into on the basis of, or in reliance on, any promise or representation,
expressed or implied, other than such as are set forth expressly in this
Agreement; and (iii) that such party has been represented by legal counsel of
its own choice in the preparation and negotiation of this Agreement, or has
affirmatively elected not to be represented by legal counsel.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on this 8th day of April, 1996.
KCI RCG
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------- ----------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxx
------------------------ -------------------
Title: CEO Title: COO
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EXHIBIT 1
EQUIPMENT LIST
FEBRUARY 12, 1996
EQUIPMENT LIST FOR KCI LABORATORY
1. Two Xxxxxx Call-Dyn 3000 Hematology Analyzers
2. Sysmex R-3000 Reticulocyte Analyzer
3. Hitachi 717 Chemistry Analyzer
4. Hitachi 747 Chemistry Analyzer
5. Varifuge Floor Model Centrifuge
6. Ultra Low Temperature Freezer
7. Microbiology Incubator
8. Nikon Labophot Microscope
9. Two Victory Double Door Refrigerators
10. Office Furniture
11. Xxxxxxx 0000 Slide Stainer
12. Kenmore Kitchen Refrigerator
13. G.E. Turntable Microwave Oven
14. Handtruck
15. Sharp Fax Machine Model FO-1700
16. Xxxxxx Model 6514 Copier
17. Dell Dimension 433SV PC and Monitor
18. Dell Dimension XPS 466V PC and Monitor
19. Okidata Microline 320 Printer
20. Uninterruptible Power Supplies (5)
21. Modulus Laboratory Information System
