FIRST AMENDMENT TO PURCHASED
SERVICES AGREEMENT
This FIRST
AMENDMENT TO PURCHASED SERVICES AGREEMENT (this “First
Amendment”) is effective as of the 1st day of April, 2009,
and is entered into by and between GK FINANCING, LLC, a California
limited liability company (“GKF”), or its wholly owned
subsidiary whose obligations hereunder shall be guaranteed by GKF,
and UNIVERSITY OF SOUTHERN CALIFORNIA, a California nonprofit
public benefit corporation (“Hospital”).
A. On
March 5, 2008, GKF and USC University Hospital, Inc.
(“USC University Hospital”), entered into a certain
Purchased Services Agreement.
B. Pursuant
to a certain letter dated effective as of March 31, 2009, GKF
agreed to the transfer and assignment to Hospital of all of USC
University Hospital’s right, title and interest in, under and
to the Purchased Services Agreement. The Purchased Services
Agreement, as assigned to and assumed by Hospital, is referred to
herein as the “Agreement.”
C. GKF and
Hospital desire to amend the Agreement as set forth
herein.
NOW THEREFORE, for
valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereby amend the Agreement as
follows:
1.
Defined Terms . Unless otherwise defined herein, the
capitalized terms used herein shall have the same meanings set
forth in the Agreement.
2.
Amendment to Section 7 . Section 7 of the
Agreement (Marketing Support) is hereby deleted in its entirety and
replaced with the following:
“7.
Marketing . Hospital shall determine whether and how to
market the services provided using the Equipment. The parties shall
discuss and mutually agree on marketing activities that promote the
Equipment and the Hospital services related to the Equipment to the
mutual benefit of both parties. If such joint marketing is
undertaken, the parties will determine an appropriate allocation of
the costs of the marketing based on the relative benefit each
receives.”
3.
Amendment to Section 8(b) . Section 8(b) of the
Agreement is hereby deleted in its entirety and replaced with the
following:
“(b) In
consideration for and as compensation to GKF for deinstallation and
removal of the Model C, the preparation, construction and
improvement of the Site, installation of the Equipment and the
other additional services to be provided by GKF under this
Agreement, Hospital shall pay to GKF, on a monthly basis, the
applicable per Procedure payments set forth in Exhibit 8 of
this Agreement (the “Purchased
-1-
Services
Payments”) for each “Procedure” that is performed
using the Equipment at the Site, whether on an inpatient or
outpatient basis, and irrespective of the actual amounts billed or
collected, if any, pertaining to such procedures. As used herein, a
“Procedure” means any treatment that involves
stereotactic, external, single fraction, conformal radiation,
commonly called radiosurgery, that may include one or more
isocenters during the patient treatment session, delivered to any
site(s) superior to the foramen magnum.”
4. New
Section 9.5 . The following is hereby added as a new
Section 9.5 to the Agreement:
“(a) At
all times during the term of the Agreement subsequent to the
effective date of this First Amendment, Hospital represents and
warrants that any and all Procedures performed or to be performed
within the “Southern California Region” (as defined
below) by Hospital, its representatives and/or affiliates
(including, without limitation, USC/Norris Comprehensive Cancer
Center), whether on an inpatient or outpatient basis, shall be
performed using the Equipment at the Site, except that the
foregoing representation and warranty shall not apply (i) to
the performance of any Procedures using the existing Cyberknife
equipment, as presently configured, upgraded or replaced (the
“Cyberknife”), so long as the Procedures using such
Cyberknife are performed at the USC/Norris Comprehensive Cancer
Center; (ii) to the performance of any Procedures outside the
Southern California Region; (iii) to the activities of
Hospital-affiliated physicians at facilities not owned or operated
by Hospital or its affiliates; or (iv) if the Equipment ceases
to represent the prevailing standard of care for Procedures, as
determined in accordance with Section 9.5(c) below (the
“Equipment Use Representation”). As used herein, the
“Southern Califor
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