Exhibit 10.53


 


PROFESSIONAL SERVICES AGREEMENT


 


This Professional Services
Agreement (the “Agreement”) is made and entered into as of the first of
January, 2005, by and between Berlin Radiation Therapy Treatment Center, LLC, a
Maryland limited liability company (“BRT”) and Katin Radiation Therapy, P.A,, a
Maryland professional corporation (the “P.A.”).


 


INTRODUCTION


 


1.         BRT operates a radiation
oncology facility, located at 314 Franklin Avenue, Berlin, Maryland 21811 (the “Cancer
Center”).


 


2.         The P.A. has substantial
expertise in the provision of professional radiation oncology services.


 


3.         BRT desires to engage the
P.A., on an independent contractor basis, to be the exclusive provider of
professional medical radiation oncology services for and on behalf of BRT, and
the P. A. desires to accept such engagement, subject to the terms of this
Agreement.


 


THEREFORE, the parties
hereto agree as follows:


 


ARTICLE I - DUTIES AND RESPONSIBILITIES OF THE P.A.


 


1.1       General Description of
Services. Subject to the terms and conditions of this
Agreement, BRT hereby engages the P.A. on an independent contractor basis as
the exclusive provider of the services described below.


 


1.2       Specific Duties and
Responsibilities. The services provided by the P.A. will include the
following:


 


(a)         Licensed Radiation
Oncologist. The P.A, shall, at its cost, provide to BRT one or
more radiation oncologists, licensed in the State of Maryland and board
certified in radiation oncology (the “Physician”), each of whom shall be
participating providers in the Medicare and Maryland Medicaid programs, to
provide professional services to patients at the Cancer Center. BRT shall have
the right to approve the Physician assigned to this position. Further, if BRT
is dissatisfied with the services of the Physician hereunder, BRT shall notify
the P.A. of such dissatisfaction in writing. BRT and the P.A. shall then
consult with each other in good faith to determine whether the performance of
the Physician is capable of being brought to acceptable levels through counsel
and assistance, or whether the Physician should be replaced. Notwithstanding
the foregoing, BRT shall have the ultimate authority to determine whether the
Physician should be replaced; and if BRT makes a request to have the Physician
replaced, the P.A. shall promptly replace the Physician with another duly
licensed radiation oncologist who shall be reasonably satisfactory to BRT. A
list of the Physicians currently engaged by the P.A. is attached hereto as Exhibit A
and shall be periodically updated as necessary.


 


(b)         Licensed Registered Nurse. In addition,
the P.A. shall, at its cost, provide to BRT one or more registered nurses,
licensed in the State of Maryland (the “R.N.”), to provide professional
services to patients at the Cancer Center. BRT shall have the right to approve
the


 

















 


R.N. assigned to this
position. Further, if BRT is dissatisfied with the services of the R.N.
hereunder, BRT shall notify the P.A. of such dissatisfaction in writing. BRT
and the P.A. shall then consult with each other in good faith to determine
whether the performance of the R.N. is capable of being brought to acceptable
levels through counsel and assistance, or whether the R.N. should be replaced.
Notwithstanding the foregoing, BRT shall have the ultimate authority to
determine whether the R.N. should be replaced; and if BRT makes a request to
have the R.N. replaced, the P.A. shall promptly replace the R.N. with another
duly licensed registered nurse who shall be reasonably satisfactory to BRT.


 


(c)         Coordination. The P.A. will
coordinate with BRT the scheduling needs of the Cancer Center so that the work
needs are met in a timely manner satisfactory to BRT. Without limiting the
generality of the foregoing, it is anticipated that the Physician and R.N.
shall during the Term (as hereinafter defined) of this Agreement be physically
present at the Cancer Center to provide radiation oncology services hereunder
on a full-time basis, Monday through Friday, between the hours of 8:00 a.m and
5:00 p.m.


 


(d)         Medical Devices and Supplies. The P.A.
shall be responsible for providing all treatment devices and medical supplies
necessary for the performance of its services required to be performed by it or
its employees under the terms of this Agreement. All sales taxes incurred in
connection with acquiring such equipment and supplies shall be borne by the PA.


 


(e)         Compliance with BRT Policies
and Procedures. The P.A. in providing services hereunder shall
comply with the rules, regulation and policies of BRT, Each Physician shall
make any and all decisions pertaining or related to the practice of medicine
and the care and treatment of patients under such Physician’s care.
Notwithstanding any provision herein to the contrary, each Physician shall
perform all services with respect to the diagnosis and treatment of patients in
such manner as such Physician, in the independent exercise of his or her
medical judgment, deems to be in the best interests of the patients.


 


(f)          Billing and Collection. All fees and
charges for services performed by the P.A, or its employees hereunder, shall be
billed by BRT in BRT’s name and shall be deposited in a bank account maintained
by BRT. The P.A. shall not bill any patient or third party payor any amount for
services performed or provided by the P.A. hereunder. The P.A. hereby
irrevocably assigns and grants to BRT the right to bill all patients and third
party payors for, and to collect all fees and charges payable in connection
with, all services personally performed or provided by the P.A. hereunder. The P.A.
shall take such actions and shall execute and deliver to BRT all such documents
and instruments as BRT may deem necessary or advisable to carry out the
provisions of this Section.


 


The P.A. hereby appoints BRT
to be its true and lawful attorney-in-fact to execute, deliver or endorse
checks, applications for payment, insurance claim forms, or other documents and
instruments, and to take such other action, as BRT shall reasonably determine,
to fully collect, secure, or realize all sums lawfully due to BRT, for services
personally performed or provided by the P.A. hereunder.


 


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(g)         Exclusivity. The parties
agree and acknowledge that the P.A. shall be the exclusive provider of
professional radiation therapy services to the LLC. In no event during the Term
of this Agreement shall the LLC engage any other party to provide professional
radiation therapy services on its behalf.


 


ARTICLE II - RELATIONSHIP OF PARTIES; MALPRACTICE
INSURANCE


 


2.1       P.A. Control. BRT shall
neither have nor exercise any control or direction over the methods by which
the P.A., any Physician or its other professional employees shall perform their
respective professional functions. The P.A. shall have the exclusive authority
to assign its Physician and other professional and non-professional employees
to perform specific duties and to assign cases and responsibilities. BRT shall
have no control over, or right to interfere with, the means employed by P.A,
and its Physician in the performance of their medical duties under this
Agreement.


 


2.2       Independent Contractor
Relationship, The relationship between BRT and the P.A. is an
independent contractor relationship. Neither BRT nor its officers, directors,
shareholders, employees, or agents are employees or agents of the P.A., and
neither the P.A. nor its officers, directors, shareholders, employees, or
agents are employees or agents of BRT. None of the provisions of this Agreement
shall be construed to create a relationship of agency, representation, joint
venture, partnership, association, ownership, control, or employment, or other
affiliation or like relationship, between the parties hereto other than that of
independent parties contracting solely for the purpose of effectuating this
Agreement. Each party hereto agrees and acknowledges that such party has no
right or authorization, express or implied, to act for the other party or to
incur, assume, or create any obligation or liability on behalf of the other
party or make any representations or warranties concerning the other party, or
bind the other party in any manner, whatsoever.


 


2.3       Employment Taxes and
Benefits. Each party hereto shall be solely responsible for
and shall comply with all state and federal laws pertaining to employment
taxes, income tax withholding, unemployment compensation contributions, and
other employment related statutes applicable to that party. Neither BRT, its
employees, or independent contractors, nor the P.A,, its employees, or
independent contractors, shall claim against the other for worker’s
compensation, sick leave, vacation pay, retirement benefits, social security
benefits, or any other employee benefits, all of which will be the respective
and sole responsibility of the respective parties. Without limiting the generality
of the foregoing, the P.A. shall be responsible for the actual cost of all
benefits, including base salary and overtime, fringe benefits, business, health
and disability insurance and worker’s compensation insurance relative to the
Physician.


 


2.4       Medical Malpractice
Insurance. During the Term of this Agreement, the P.A. shall
obtain and maintain, at its expense, medical malpractice liability insurance
for the P.A. and the Physician with a carrier licensed to do business in the
State of Maryland and with limits not less than $1,000,000 per occurrence and
$3,000,000 in the aggregate. The P.A. shall provide BRT with certificates of
insurance evidencing the insurance coverage required under this Section 2.5
upon execution of this Agreement. The P.A. shall promptly notify BRT of any
cancellation, reduction, or other material changes in the amount or scope of
any coverage required under this Section 2,5. If this Agreement terminates
for any reason, the P.A. shall, at its


 


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cost and expense, continue
to maintain such medical malpractice liability insurance coverage for the
applicable statute of limitations for personal injury relative to the services
provided hereunder; or if this Agreement terminates for any reason, or if such
medical malpractice liability insurance coverage terminates for any reason, the
P.A. shall, at its cost and expense, purchase, or arrange to purchase, either (a) an
extended reporting endorsement with respect to such medical malpractice
liability insurance (i.e., tail insurance) for the maximum period that may be
purchased from its insurer, or (b) “prior acts” coverage from a new
insurer reasonably acceptable to BRT with a retroactive date on or prior to the
date the P.A. or the Physician began providing services hereunder, and the P.A.
shall maintain such “prior acts” coverage for the applicable statute of
limitations for personal injury relative to the services provided hereunder.


 


2.5       Third Party Contracts. The P.A.
agrees to use best efforts to become credentialed in connection with third
party payor contracts, including but not limited to contracts with governmental
payors, insurers, and managed care organization such as health maintenance
organizations (“HMOs”), preferred provider organizations (“PPOs”) or
independent practice associations (“IPAs”) with which the LLC contracts.


 


ARTICLE III - COMPENSATION


 


3.1       Fees. Subject to
the provisions of Section 3.3 hereof, the P.A. shall be entitled to
receive, for each year of this Agreement, compensation for its services under
this Agreement equal to twenty-four percent (24%) of BRT’s annual “Net Global
Collections.”


 


For purposes of this
Agreement, “Net Global Collections” means the fees and charges actually
collected by BRT during the applicable year that are attributable to radiation
oncology services performed or provided by the P.A. hereunder at the Cancer
Center, less refunds to patients and third party payors, and offsets,
overpayments, recoupments, and re-application of revenues in order to address
adjustments by third party payors, including, without limitation, Medicare or
Medicaid.


 


3.2       Annual Evaluation. BRT and the
P.A. shall meet within thirty (30) days of the expiration of each twelve (12)
month period of the term of this Agreement for purposes of discussing the
adequacy of the fees payable hereunder.


 


ARTICLE IV - COMPLIANCE WITH LAWS


 


Each party hereto shall,
during the Term of this Agreement, comply with all applicable federal, state,
and local laws, rules, and regulations, in connection with the performance of
its obligation hereunder and the conduct of its business, including, without
limitation, federal and state statutes, rules, and regulations which prohibit
presenting or causing to be presented a false claim for payment, making a false
statement or using a false record in order to obtain any benefit or payment,
soliciting or receiving any remuneration (including any kickback, bribe, or
rebate), directly or indirectly, in cash or in kind, or offering to pay or
receive such remuneration, in return for referring an individual to any person
or entity for the furnishing or arranging for the furnishing of any item or
service for which payment may be made in whole or in part by a state or federal
healthcare program or any other person or entity, including, without
limitation, the Medicare and Medicaid programs, or in return for purchasing,
leasing, or ordering or arranging


 


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for, or recommending,
purchasing, leasing, or ordering any good, facility, service, or item for which
payment may be made in whole or in part by a state or federal healthcare
program or any other person or entity, including, without limitation, the
Medicare and Medicaid programs, or referring a patient for “designated health
services” (as defined in 42 U.S.C. § 1395nn, as the same may be amended from
time to time (or any corresponding provisions of succeeding law)) to a person
or entity with which the referring physician has a financial relationship.


 


ARTICLE V - TERM AND TERMINATION


 


5.1       Term. The term of
this Agreement shall commence on April 1, 2005 and shall continue in
effect for an initial term of thirty-six (36) months. Unless sooner terminated
in accordance with the provisions of this Article V, this Agreement shall
be renewed for successive twelve (12) month terms thereafter unless either
party gives notice to the other in writing at least ninety (90) days in advance
of the then expiring term of its intention not to renew the Agreement.


 


5.2       Termination by Either Party. This
Agreement may be terminated by either party upon written notice to the other
party (the “Other Party”) for any of the following reasons:


 


(a)         upon the filing of a
petition in an involuntary action by, or upon the entry of an order or decree
in an involuntary action against, the Other Party, under the Bankruptcy Code or
any successor statute thereto;


 


(b)         institution by the Other
Party of proceedings, other than under the Bankruptcy Code, of any nature under
any laws of the United States or of any state, whether a now existing or
subsequently enacted or amended, for the relief of debtors wherein such Other
Party is seeking relief as a debtor;


 


(c)         a general assignment of all
or substantially all of its assets by the Other Party for the benefit of
creditors;


 


(d)         a proposed plan or
arrangement or other action by the Other Party’s creditors taken as a result of
a general meeting of the creditors of such Other Party;


 


(e)         upon the issuance of a final
order or decree of any court or governmental agency having jurisdiction over
the parties which order or decree requires the termination of this Agreement;
or


 


(f)          In the event that the Other
Party or any of its officers, directors or Physicians providing services under
this Agreement becomes ineligible to participate or is barred from
participation in the Medicare or Medicaid programs.


 


5.3       Termination by BRT.


 


(a)         BRT may terminate this
Agreement upon the failure by the P.A. to observe or perform any of its
covenants, agreements, warranties, or representations contained in this
Agreement if such failure shall remain uncured for a period of thirty (30)
calendar days after written notice thereof specifying such failure has been
given to the P.A.


 


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(b)         BRT may immediately
terminate this Agreement in the event Michael Katin, M.D. is no longer the sole
shareholder of the P.A.


 


5.4       Termination by the P.A. The P.A. may
terminate this Agreement upon failure by BRT to observe or perform any of its
agreements, covenants, warranties, or representations contained in this
Agreement if such failure shall remain uncured for a period of thirty (30) days
after written notice thereof, specifying such failure, has been given to BRT.


 


5.5       Prospective Legal Events. Notwithstanding
anything to the contrary contained in this Agreement, if: (a) the
performance by either party hereto of any term, covenant, condition or
provision of this Agreement could in the reasonable opinion of counsel for BRT
or the P.A., be deemed to jeopardize (i) the license of BRT, or (ii) participation
by either party in the Medicare Program, the Medicaid Program, or any other
government sponsored health care program, or any other health care program; or (iii) for
any other reason such performance should be deemed, in the reasonable opinion
of counsel for BRT or the P.A., to be in violation of any federal or state law,
rule, regulation, or ordinance, or otherwise deemed to be actually illegal or
likely illegal, BRT and the P.A, will promptly meet and attempt to
re-negotiate, in good faith, an amendment to this Agreement so as to bring this
Agreement into compliance with such law, rule or regulation, or otherwise
remove the alleged violation. To the maximum extent possible, any such
amendment shall preserve the underlying economic and financial arrangements
between the parties hereto.


 


If within thirty (30)
calendar days of the commencement of such negotiations (the “Negotiation Period”),
BRT and the P.A. have been unable to reach an agreement regarding an amendment
which shall bring this Agreement into compliance with such law, rule, or
regulation, or otherwise remove such violation, and preserve the underlying
economic and financial arrangements between the parties hereto, then either
party may, within thirty (30) calendar days after the expiration of the
Negotiation Period, elect to terminate this Agreement by giving written notice
to the other which notice shall specify a termination date which shall be on
the last day of a month. This Agreement shall automatically terminate upon the
termination date specified in such notice, with all obligations and
responsibilities of each party to the other hereunder terminating, except that
each party shall be fully liable and responsible for any obligations which have
accrued prior to the effective date of such termination.


 


5.6       Rights and Remedies.


 


(a)         Upon expiration or sooner
termination of this Agreement, all obligations of each party to the other under
this Agreement shall cease, except such termination shall not relieve either
party of any obligation to the other in accordance with this Agreement with
respect to services performed prior to such termination.


 


(b)         In the event of any breach
by either party of this Agreement and the failure to cure it within the requisite
grace period, the non-breaching party shall be entitled to any relief to which
it may be entitled at law or in equity.


 


5.7       Medical Records. All medical
records, case records, case histories, notes, plans of care, financial records,
and all other records and information relating in any way to any patient


 


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who receives services at the
Cancer Center shall at all times belong to and remain the property of BRT, and
shall be located at the Cancer Center, and BRT shall be the records owner
thereof. If this Agreement terminates for any reason, the P.A. shall, and shall
cause the Physician, to promptly return to BRT all such records that the P.A.
or the Physician may then have, or at any time thereafter discover to be, in
their possession. During the Term of this Agreement and thereafter, the P.A. or
its representative shall on reasonable advance notice have reasonable access
during normal business hours to review and copy, at its expense, the medical
records of all patients of the Cancer Center who have received services from
the Physician.


 


5.8       Access to Books and Records. Upon the
written request of the Secretary of the Department of Health and Human Services
or the Comptroller General or any other duly authorized representative thereof,
the P.A. shall make available for inspection those contracts, books, documents,
and records necessary to verify the nature and extent of the cost of providing
its services hereunder. Such inspection shall be available for up to four (4) years
after such services are rendered. If the P.A. carries out any of its duties
hereunder through subcontract with a value of Ten Thousand Dollars ($10,000.00)
or more over a twelve (12) month period with a related individual or
organization, the P.A. agrees to include this requirement in such subcontract.
If a written request for inspection from the Secretary of the Department of
Health and Human Services or the Comptroller General or any other duly
authorized representative thereof is served on the P.A., the P.A. will use its
reasonable best efforts to notify the Center in writing prior to responding to
the request.


 


ARTICLE VI - COVENANT NOT-TO-COMPETE


 


6.1       (a)      The
P.A. covenants and agrees that during the term of this Agreement and for a
period of twenty-four (24) months following the expiration or other termination
of this Agreement (or any renewal thereof), neither it nor any of its employees
or shareholders shall: (i) engage in the practice of radiation oncology or
engage in the ownership, operation or management of a radiation oncology
practice or facility (a “Competing Business”) within 25 miles of the Cancer
Center (the “Service Area”); (ii) whether as owner, stockholder, partner,
member, director or consultant in any Competing Business in the Service Area; (iii) for
its or their own account or the account of others, induce any patient of the
Cancer Center to patronize any Competing Business; (iv) canvass or solicit
any business relationship from any patients of the Cancer Center; (v) directly
or indirectly request or advise any patients of the Cancer Center to withdraw,
curtail, or cancel such patient’s business with the Cancer Center; or (vi) urge,
induce, entice or in any manner whatsoever solicit the employees of BRT to
leave BRT’s employ or engage (or cause a third party to engage any individual
who was an employee of BRT within the twelve month (12) period preceding the
termination of this Agreement; provided however, the foregoing shall not be
deemed to prohibit or restrict the P.A., its shareholders or employees from
providing services where currently under agreement to do so with Peninsula
Regional Medical Center in Salisbury, Maryland and Naticoke Health Services in
Seaford, Delaware.


 


(a)         BRT shall also be entitled
to an injunction restraining the P.A. from violating the terms of the
restrictive covenant set forth herein (without the necessity of securing a
bond) and any other legal or equitable remedies available for such breach or
threatened breach.


 


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(b)         If the P.A. violates this
restrictive covenant and BRT brings legal action for injunctive or other
relief, BRT shall not, as a result of the time involved in obtaining the
relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the restrictive covenant shall be deemed to have the
duration specified herein, computed from the date the relief is granted, but
reduced by the time between the period when the restriction began to run and
the date of your first violation of the covenant.


 


(c)         The P. A. acknowledges that
the provisions of this paragraph are necessary and reasonable in order to
protect BRT in the conduct of its business, particularly in light of the
difficultly in ascertaining damages in the event of a breach.


 


(d)    If any court or tribunal of
competent jurisdiction determines that the duration, geographical limit or any
other aspect of the above restrictive covenants is unenforceable in accordance
with its terms in a particular jurisdiction, such covenant shall not terminate;
instead, such covenant shall be deemed amended to the extent required to render
it valid and enforceable in such jurisdiction and such court or tribunal is
hereby authorized and directed to amend the non-competition covenant contained
herein only to the extent that such court or tribunal determines such an
amendment is necessary to make it valid and enforceable in said jurisdiction
(with as minimal a change from the covenant as drafted as is legally
permissible).


 


ARTICLE VII - INDEMNIFICATION


 


7.1       BRT’s Obligation. BRT shall,
and does hereby agree to, hold harmless and indemnify the P.A. and its
officers, directors, employees, agents, and shareholders from all liabilities,
costs or expenses, including legal fees and court costs, arising from (i) its
negligent acts or omissions and those of its employees including, but not
limited to, claims of professional malpractice, (ii) services performed by
BRT under this Agreement, or (iii) BRT’s failure to observe or perform any
of covenants, warranties, representations or requirements contained in this
Agreement.


 


7.2       The P.A.’s Obligation. The P.A. shall,
and does hereby agree to, hold harmless and indemnify BRT, its officers,
directors, employees, agents and shareholders from all liabilities, costs, or
expenses, including legal fees and court costs, arising or resulting from (i) its
negligent acts or omissions and those of its employees including, but not
limited to, claims of professional malpractice, (ii) services performed by
the P.A. under this Agreement, or (iii) the P.A.’s failure to observe or
perform any of its covenants, warranties, representations, or requirements
contained in this Agreement.


 


ARTICLE VIII - GENERAL TERMS


 


8.1       Notices. All notices
or other communications that are required or may be given or made pursuant to
this Agreement shall be in writing and shall be: (a) delivered personally,
by hand, or by telefax, or (b) delivered by registered or certified mail,
return receipt requested, through the United States mail, postage prepaid, or (c) delivered
through or by Federal Express, Express Mail, or other expedited mail or package
service, addressed to the parties as follows:


 


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  If to BRT:

  	
  Berlin Radiation Therapy

  
	
   

  	
  Treatment Center, LLC

  
	
   

  	
  2234 Colonial Boulevard

  
	
   

  	
  Fort Myers, Florida 33907

  
	
   

  	
  Attention: David Koeninger

  
	
   

  	
   

  
	
  with a copy to:

  	
  Peninsula Health
  Ventures, Inc.

  
	
   

  	
  100 East Carroll Street

  
	
   

  	
  Salisbury, Maryland 21804

  
	
   

  	
   

  
	
  If to the P.A.:

  	
  Katin Radiation Therapy,
  P.A.

  
	
   

  	
  2234 Colonial Boulevard

  
	
   

  	
  Fort Myers, Florida 33907

  
	
   

  	
  Attention: Michael Katin,
  M.D.

  



 


Any notice or other
communications to be given or that may be given pursuant to this Agreement
shall be deemed to have been given: (a) five (5) calendar days after
the deposit of such notice or communication in the United States mail,
certified, return receipt requested, with proper postage affixed thereto; (b) upon
the first business day after depositing such notice or other communication with
Federal Express, Express Mail, or other expedited mail or package delivery
service guaranteeing delivery no later than the next business day if next day
delivery service has been requested and paid for; or (c) upon delivery if
hand delivered or telefaxed to the appropriate address.


 


8.2       Entire Agreement. This
Agreement between BRT and the P.A. contains the entire agreement between the
parties hereto and supersedes all prior agreements between the parties hereto,
whether written or oral, as of the date of this Agreement. The parties
acknowledge and agree that neither of them has made any representations with
respect to the subject matter of such agreements, or any representation
inducing the execution and delivery hereof except such representations as are
specifically set forth herein or therein, and each of the parties hereto
acknowledges that it has relied on its or his own judgment in entering into the
same.


 


8.3       Modification and Waiver. No provision
of this Agreement may be amended, modified, waived, or discharged unless such
amendment, modification, waiver, or discharge is agreed to in writing and
signed by authorized representatives of BRT and the P.A, No waiver by BRT or
the P.A. of any default or breach of any provision of this Agreement by the
other shall be deemed to extent to or operate as a waiver of any prior or
subsequent default or breach of any provision of this Agreement or affect in
any way any right arising by virtue of any prior or subsequent occurrence. No
delay or omission on the part of BRT or the P.A. in exercising any right or
remedy that such party may know or hereafter have hereunder or otherwise at law
or in equity shall operate as a waiver thereof, and no single or partial
exercise by such party of any such right to remedy shall preclude any other
future exercised thereof or the exercise of any other right or remedy.


 


8.4       Binding Effect; Benefit. This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their successors and permitted assigns.


 


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8.5       No Third-Party Beneficiaries. Except as
otherwise provided herein, this Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
successors and permitted assigns.


 


8.6       Severability. Except as
otherwise provided in Article VI hereof, in the event any provision of
this Agreement is rendered invalid or unenforceable by the enactment of any
applicable statute or ordinance or by any regulation duly promulgated by
officers of the United States, or of the State of Maryland acting in accordance
with law, or is declared null and void by any court of competent jurisdiction,
the remainder of the provisions of this Agreement will remain in full force and
effect.


 


8.7       Waiver of Breach. Waiver of a
breach of any provision of this Agreement will not be deemed a waiver of any
other breach of either the same or any different provision of this Agreement.


 


8.8       Assignment. Neither of
the parties may assign this Agreement without the consent of the other party.


 


8.9       Plural. Whenever the
singular is used, it shall include the plural and wherever the plural is used
it shall include the singular.


 


8.10     Approval. Except as
otherwise provided herein, whenever this Agreement requires the approval,
consent or permission of any party hereto, such approval, consent or permission
by such party shall not be unreasonably withheld or delayed and shall be given
in writing and within thirty (30) calendar days of the request (unless a
different time period is specified), specifying the reasons therefor or the
same is approved, consented to, or permitted, as the case may be. In the event
of an emergency requiring approval, such approval request shall be responded to
within twenty-four (24) hours of delivery of the request to the designated
representative of the appropriate party or at the earliest possible time
thereafter. Further, once a consent, approval, etc., has been given, it
may not be rescinded in later submissions covering such matters unless approved
items are materially modified.


 


8.11     Applicable Law. This
Agreement shall be construed under and in accordance with the laws of the State
of Maryland.


 


8.12     Costs of Enforcement. If any action
at law or in equity (including any arbitration or appellate proceeding) is
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to all costs and reasonable legal and accounting fees,
expenses, costs, and disbursements, at all levels of arbitration, litigation,
or appeal, as the case may be, in addition to any other relief to which such
party may be entitled.


 


8.13     Counterparts. This
Agreement may be executed in counterparts, each of which will be deemed to be
an original.


 


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IN WITNESS WHEREOF, the
parties have caused this Agreement to be made and entered into on the date last
below written with the intent to be legally bound.


 


 


	
   

  	
  BERLIN RADIATION THERAPY
  TREATMENT CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Koeninger

  
	
   

  	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KATIN RADIATION THERAPY,
  P.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J. Katin, M.D.

  
	
   

  	
   

  	
  Name:

  	
  Michael J. Katin, M.D.

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


11

















 


EXHIBIT A


 


Licensed
Radiation Oncologists - December 31, 2004


 


Michael J. Katin, M.D.


 


Mark L. Sobczak, M.D.


 


Manoj Jain, M.D.


 


Edward Kiggundu, M.D.


 


12