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     3. Term of the Agreement. The initial term of this Agreement (the “Term”) shall commence asof the date hereof and, unless earlier terminated or extended in accordance with the provisions ofthis Agreement, shall continue for a period of seven (7) years following the date of theperformance of the first clinical Procedure (as defined in Section 8) performed on the Equipment(the “First Procedure Date”) at the Site (as defined in Section 5.1). The parties agree to amendthis Agreement to memorialize the First Procedure Date upon the performance of the first clinicalProcedure performed on the Equipment. Medical Center’s obligation to make the “Purchased ServicesPayments” to GKF for the Equipment described in Section 8 below shall commence as of the FirstProcedure Date.     4. User License. Medical Center shall apply for and use its reasonable efforts to obtain in atimely manner a User License from the Nuclear Regulatory Commission and, if necessary, from theapplicable state agency authorizing it to take possession of and maintain the Cobalt supplyrequired in connection with the use of the Equipment during the term of this Agreement. MedicalCenter also shall apply for and use its reasonable efforts to obtain in a timely manner all otherlicenses, permits, approvals, consents and authorizations which may be required by state or localgovernmental or other regulatory agencies for the development, construction and preparation of theSite, the charging of the Equipment with its Cobalt supply, the conduct of acceptance tests withrespect to the Equipment, and the use of the Equipment during the Term, as more fully set forth inArticle 2.1 of the LGK Agreement. GKF shall provide assistance to the Medical Center in applyingfor and for obtaining all such licenses, permits, approvals, consents or authorizations. If theapplicable regulatory authorities affirmatively decline to issue a required license, permit,approval, consent or authorization notwithstanding Medical Center’s best efforts to obtain thesame, all parties shall be released from further performance or any obligations or duties arisingunder this Agreement.     5. Delivery of Equipment; Site.          5.1 GKF shall coordinate with Elekta and Medical Center to have the Equipment delivered toMedical Center at the site at which the Model B is currently located, as described in Exhibit 5.1of this Agreement (the “Site”), which delivery is anticipated to be on or before July 2009, subjectto all approvals and User Licenses having been obtained, and provided that, if such delivery dateis in advance of the expiration of the current term of the existing Lease Agreement For A GammaKnife Unit dated June 1, 1998, between GKF and Medical Center (as amended, the “Prior Agreement”),which results in an early termination of the Prior Agreement, then, the parties will negotiate anextension to the Term of this Agreement to offset the effect of such early termination of the PriorAgreement. GKF makes no representations or warranties, and assumes no responsibility or liability,concerning delivery of theEquipment to the Site or the actual date thereof. Medical Center shall bear no risk of lossprior to actual delivery of Equipment to the Site.
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          5.2 Medical Center shall provide access to the Site for the Equipment. GKF at its cost andexpense shall prepare the Site for the Equipment in accordance with Elekta’s guidelines,specifications, technical instructions and site planning criteria (which site planning criteria areattached as Exhibit 5.2 of this Agreement) (collectively the “Site Planning Criteria”). Thelocation of the Site has been agreed upon by Medical Center and GKF as described in Exhibit 5.1 ofthis Agreement.     6. Site Preparation, Deinstallation of Model B and Installation of Equipment.          6.1 GKF, at its cost, expense and risk, shall prepare all plans and specifications required toconstruct and improve the Site for the installation, use and operation of the Equipment during theTerm. The plans and specifications shall comply in all respects with the Site Planning Criteriaand with all applicable federal, state and local laws, rules and regulations. All plans andspecifications prepared by or on behalf of GKF (and all material changes thereto following approvalby Medical Center and Elekta) shall be subject to the written approval of Medical Center and Elektaprior to commencement of construction at the Site. GKF shall provide Medical Center and Elektawith a reasonable period of time for the review and consideration of all plans and specificationsfollowing the submission thereof for approval (and Medical Center shall not unreasonably withholdor delay its approval). Following approval of the plans and specifications by Medical Center andElekta, GKF, at its cost and expense, shall assist Medical Center in obtaining all permits,certifications, approvals or authorizations required by applicable federal, state or local laws,rules or regulations necessary to construct and improve the Site for the installation, use andoperation of the Equipment.          6.2 Based upon the plans and specifications approved by Medical Center and Elekta, GKF, at itscost, expense and risk, shall prepare, construct and improve the Site as necessary for theinstallation, use and operation of the Equipment during the Term, including, without limitation,providing all temporary or permanent shielding required for the charging of the Equipment with theCobalt supply and for its subsequent use, selecting and constructing a proper foundation for theEquipment and the temporary or permanent shielding, aligning the Site for the Equipment, andinstalling all electrical systems and other wiring required for the Equipment. In connection withthe construction of the Site, GKF, at its cost and expense, shall select, purchase and install allradiation monitoring equipment, devices, safety circuits and radiation warning signs required, ifany, at the Site in connection with the use and operation of the Equipment, all in accordance withapplicable federal, state and local laws, rules, regulations or custom.
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          6.3 GKF, at its cost, expense and risk, shall be responsible for the installation of theEquipment at the Site, including the positioning of the Equipment on its foundation at the Site incompliance with the Site Planning Criteria.          6.4 GKF warrants and ensures that, to its best knowledge, upon completion of the preparation,construction and improvement of the Site, including the positioning of the Equipment on itsfoundation at the Site and installation of the Equipment, the Site shall comply in all materialrespects with the Site Planning Criteria and all applicable federal, state and local laws, rulesand regulations, and be safe and suitable for the ongoing use and operation of the Equipment duringthe Term. GKF agrees to indemnify, defend and hold Medical Center harmless from any loss, orclaim, suit or proceeding brought against the Medical Center in connection with or arising fromGKF’s noncompliance with GKF’s warranties and assurances provided under this Section 6.4. It isacknowledged that the existing site and location that are currently being used for the Model Bpursuant to the Prior Agreement (the “Existing Site”) will continue to be used for the Equipmentfollowing the deinstallation and removal of the Model B and GKF’s modifications to the Site toaccommodate the Equipment. Notwithstanding anything to the contrary contained in this Agreement,(a) nothing set forth in this Agreement shall eliminate, modify or limit any or all of MedicalCenter’s representations, warranties and/or obligations set forth in the Prior Agreement withrespect to the Existing Site, all of which shall remain unchanged and in full force and effect, andshall survive the termination or expiration of the Prior Agreement; and (b) GKF makes norepresentation or warranty and assumes no liabilities with respect to the work performed by or onbehalf of Medical Center pursuant to the Prior Agreement in connection with the Existing Site.          6.5 GKF at its cost, expense and risk, shall coordinate with Elekta the deinstallation andremoval of the Model B including unloading and disposing of the cobalt. GKF agrees to provideMedical Center the option to retain its existing headframes and fiducial boxes; and in the eventthat Medical Center exercises this option, GKF also agrees that it shall, at its sole cost andexpense, refurbish the existing headframes.          6.6 GKF shall use its reasonable efforts to satisfy its obligations under this Section 6 in atimely manner. GKF shall keep Medical Center informed on a regular basis of its progress in thedesign of the Site, the preparation of plans and specifications, the construction and improvementof the Site, and the satisfaction of its other obligations under this Section 6. In all events,GKF shall complete all construction and improvement of the Site required for the installation,positioning and testing of the Equipment on or prior to the delivery date described in Section 5.1above. During the Term, Medical Center, at its cost and expense, shall maintain the Site in a goodworking order, condition and repair, reasonable wear and tear excepted.
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          6.7 Notwithstanding anything to the contrary contained in this Agreement, GKF’s responsibilityfor all costs and expenses incurred in connection with Section 6.1, 6.2, and 6.3 shall not exceed *in the aggregate. All costs and expenses in excess of * shall be the responsibility of MedicalCenter.     7. Marketing Support. GKF, in coordination with Medical Center, shall provide Medical Centerwith marketing support for the service to be provided by Medical Center using the Equipment. Notless than ninety (90) days prior to the First Procedure Date and the commencement of eachsucceeding twelve (12) month period during the Term, GKF and Medical Center shall develop amutually agreed upon marketing budget and plan (“Plan”) for the clinical service to be supported bythe Equipment for the succeeding twelve (12) month period of the Term. Once approved, the Planshall be implemented by Medical Center in accordance with its terms. If Medical Center has notapproved or disapproved of the Plan within sixty (60) days following its receipt, Medical Centershall be deemed to have approved the same. All advertisements, brochures and other marketingmaterials pertaining to the Plan shall be subject to review and written approval by Medical Centerand GKF prior to their use. Medical Center and GKF shall discuss the Plan on a regular basis notless than once per quarter. Medical Center’s and any Medical Center subsidiary’s or relatedcorporation’s name, trademarks, service marks, or other identifying names, marks, images ordesignations shall be and remain the sole and exclusive property of Medical Center, but which maybe used in any written pre-approved marketing materials without payment of any license or royaltyfee. As funds are expended by Medical Center in accordance with the Plan, Medical Center shallsubmit invoices (together with documentary evidence supporting the invoices) for its expenditurespaid to third parties and, promptly following the receipt of such invoices, GKF shall reimburseMedical Center for * of approved expenditures, provided that such portion to be reimbursed by GKFshall not exceed an average of * annually during the term of the Agreement. It is acknowledged bythe parties that such expenses to be reimbursed by GKF as provided in Section 7 have been includedin GKF’s calculation of Medical Center’s Purchased Services Payments so as to allow GKF to recoversuch GKF expenses during the Term of this Agreement.     8. Purchased Services Payments.          (a) The parties have negotiated this Agreement at arm’s length based upon reasonable andjointly derived assumptions regarding the capacity for clinical services available from theEquipment, Medical Center’s capabilities in providing high quality radiation oncology services,market dynamics, GKF’s risk in providing the Equipment, and the provision to GKF of a reasonablerate of return on its investment in support of the Equipment. Based thereon, the Parties believethat the “Purchased Services Payments” as defined below represent fair market value for the use ofthe Equipment, the deinstallation and removal of the Model B, the preparation, construction andimprovement of the Site, and the marketing support and other services to be provided
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by GKF to Medical Center hereunder. Medical Center undertakes no obligation to perform anyminimum number of Procedures on the Equipment, and the use of the Equipment for the performance ofProcedures is wholly based upon the independent judgment of physicians who order such Procedures tomeet the medical needs of their patients.          (b) In consideration for and as compensation to GKF for deinstallation and removal of theModel B, the preparation, construction and improvement of the Site, installation and use of theEquipment, the Equipment modification allowance referenced in Section 13.1 below, and marketingsupport and the other additional services to be provided by GKF under this Agreement, MedicalCenter shall pay to GKF, on a monthly basis, the applicable “Purchased Services Payments” (asdefined below) for each “Procedure” that is performed by Medical Center or its representatives oraffiliates, whether on an inpatient or outpatient basis, and irrespective of whether the Procedureis performed on the Equipment or using any other equipment or devices, including but not limited toany “Additional GK Leksell Unit” (defined below). Notwithstanding the foregoing, and for theavoidance of doubt, if at any time in addition to the Equipment, Medical Center purchases, leasesor otherwise acquires from any third party the use of a Leksell Gamma Knife unit(s) of any modeltype or configuration (an “Additional GK Leksell Unit”), then, in addition to the PurchasedServices Payments that are payable to GKF for Procedures performed using the Equipment as set forthabove, Medical Center shall pay to GKF the Purchased Services Payments on a monthly basis for anyand all Procedures performed using the Additional GK Leksell Unit, and/or any other equipment ordevices, whether on an inpatient or outpatient basis. The parties acknowledge that the PurchasedServices Payments represent fair market value for the use of the Equipment as described in thisAgreement. As used herein:               (i) “Procedure” means any treatment that involves stereotactic, external, single fraction,conformal radiation, commonly called radiosurgery, that may include one or more isocenters duringthe patient treatment session, delivered to any site(s) superior to the foramen magnum.“Procedure” shall expressly exclude (1) any procedures which the Equipment is unable to perform orwhich, in the opinion of Elekta, the Equipment is not designed or reasonably suitable to perform;and/or (2) any fractionated procedures for a single tumor involving more than a single fraction(commonly called fractionated stereotactic radiotherapy) where such fractionated treatment ismedically indicated.               (ii) “Purchased Services Payments” shall be equal to the applicable percentage of the“Technical Component Collections” relating to each Procedure as set forth in Exhibit 8 attachedhereto performed using the Equipment, any Additional GK Leksell Unit and/or any other equipment ordevices during the Term of this Agreement.
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               (iii) “Technical Component Collections” means the total amount actually collected by MedicalCenter or its representatives or affiliates during each month from any and all payor sources,including, without limitation, patients, insurance companies, state or federal government programsor any other third party payors, including, without limitation, all copayments and deductibles, asreimbursement for the technical component of all services (including, but not limited to, treatmentplanning and delivery, imaging, medical supplies, pharmacy, laboratory, and recovery room)pertaining to each Procedure performed on the Equipment, any Additional GK Leksell Unit and/or anyother equipment or devices during the term of this Agreement. The technical fees to be billed foreach Procedure (on an individual basis and not collectively) that is performed utilizing theEquipment, any Additional GK Leksell Unit and/or any other equipment or devices during the Term ofthis Agreement shall be an amount which is economically justifiable based upon GKF’s directoperating expenses and its total project costs, together with a return thereon. For all Proceduresthat are performed utilizing the Equipment, any Additional GK Leksell Unit and/or any otherequipment or devices, Medical Center shall consult in advance with GKF from time to time regardingthe amount of such technical fees to be billed by Medical Center. Subject to compliance with thestandard described in the preceding sentence, Medical Center and GKF shall mutually agree on thesetting or revision of the amount of, or portion comprising, such technical fees on no more than anannual basis to ensure that such fees remain consistent with fair market value, and the acceptanceof the technical fee component amounts with third party payors prior to their implementation.          (c) On or before the fifteenth (15) day and the last day of each month (or portion thereof)during the term of this Agreement, Medical Center shall inform GKF in writing as to (i) the numberof Procedures performed during that month utilizing the Equipment (and, if applicable, anyAdditional GK Leksell Unit and/or any other equipment or devices); and (ii) the Technical ComponentCollections during that month. Medical Center shall submit claims for reimbursement to theappropriate payors for each Procedure within thirty (30) days after the patient receiving thetreatment is discharged. If no Technical Component Collections are received during any month,then, no Purchased Services Payments shall be owing by Medical Center to GKF for that month.During the Term of this Agreement, Medical Center shall, by the thirtieth (30th) day of each month,remit GKF’s aggregate Purchased Services Payment for the immediately preceding month, and, for aperiod of twenty-five (25) months following the termination or expiration of this Agreement (the“Collections Run-Out Period”), Medical Center shall, by the thirtieth (30th) day of each suchmonth, continue to remit GKF’s aggregate Purchased Services Payment pertaining to TechnicalComponent Collections received during the Collections Run-Out Period as applicable to Proceduresperformed during the Term. All or any portion of a Purchased Services Payment which is not paid infull within sixty (60) days after its due date shall bear interest at the rate of one percent (1%)per month (or the maximum monthly interest rate permitted to be charged by law
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between an unrelated, commercial borrower and lender, if less) until the unpaid PurchasedServices Payment together with all accrued interest thereon is paid in full. If GKF shall at anytime accept a Purchased Services Payment from Medical Center after it shall become due, suchacceptance shall not constitute or be construed as a waiver of any or all of GKF’s rights underthis Agreement, including the rights of GKF set forth in Section 20 hereof.          (d) Within thirty (30) days after the close of each month, Medical Center shall provide GKFwith a patient de-identified written report indicating the status of billings and collections foreach Procedure performed during that month using the Equipment, any Additional GK Leksell Unitand/or any other equipment or devices, including, without limitation, the amount of the claimsubmitted and the amount received for each such Procedure. Upon request by GKF, Medical Centershall furnish to GKF information regarding reimbursement rates from any or all payor sources forProcedures (applicable to procedures performed either on an inpatient or outpatient basis). Ifsuch reimbursement rates should change at any time or from time to time after the date hereof, ineach instance, Medical Center shall provide written notice thereof to GKF within five (5) days ofMedical Center receiving notice thereof.          (e) Within ten (10) days after Medical Center’s receipt of written request by GKF, GKF shallhave the right to audit all applicable books and records during normal business hours to verify thenumber of Procedures performed and Technical Component Collections received by Medical Center orits agents, representatives or affiliates, utilizing the Equipment, any Additional GK Leksell Unitand/or any other equipment or devices, and Medical Center shall provide GKF (or cause GKF to beprovided) with access to such books and records; provided that any patient names or identifiers orother confidential and Protected Health Information (as defined and required by state and federallaw) shall not be disclosed.          (f) The provisions of this Section 8 shall survive the termination or expiration of thisAgreement.     9. Use of the Equipment.          9.1 The Equipment shall be used by Medical Center only at the Site and shall not be removedtherefrom. Medical Center shall use the Equipment only in the regular and ordinary course ofMedical Center’s business operations and only within the capacity of the Equipment as determined byElekta’s specifications. Medical Center shall not use nor permit the Equipment to be used in anymanner nor for any purpose which, in the opinion of Elekta or GKF, the Equipment is not designed orreasonably suitable.          9.2 Notwithstanding anything to the contrary contained in this Agreement, this is an agreementof purchasing a service only. Nothing herein shall be construed as conveying to Medical Center anyright, title or interest in or to the
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Equipment, except for the express right to use the Equipment granted herein to Medical Centerduring the Term. All Equipment shall remain personal property (even though said Equipment mayhereafter become attached or affixed to real property) and the title thereto shall at all timesremain exclusively in GKF.          9.3 During the Term, upon the request of GKF, Medical Center shall promptly affix to theEquipment an identifying label supplied by GKF indicating GKF’s ownership of the Equipment, andshall keep the same affixed for the entire Term. Medical Center hereby authorizes GKF to causethis Agreement or any statement or other instrument showing the interest of GKF in the Equipment tobe filed or recorded, or refiled or re-recorded, with all governmental agencies consideredappropriate by GKF. Medical Center also shall promptly execute and deliver, or cause to beexecuted and delivered, to GKF any statement or instrument reasonably requested by GKF for thepurpose of evidencing GKF’s interest in the Equipment, including UCC financing statements and otherrelevant statements and waivers with respect to rights in the Equipment from any owners ormortgagees of any real estate where the Equipment may be located.          9.4 At Medical Center’s cost and expense, Medical Center shall (a) protect and defend GKF’sownership of and title to the Equipment from and against all persons claiming against or throughMedical Center, (b) at all times keep the Equipment free from any and all liens, encumbrances,attachments, levies, executions, burdens, charges or legal processes imposed against MedicalCenter, (c) give GKF immediate written notice of any matter described in clause (b), and (d) in themanner described in Section 22 below indemnify GKF harmless from and against any loss, cost orexpense (including reasonable attorneys’ fees) with respect to any of the foregoing.     10. Additional Covenants of Medical Center. In addition to the other covenants of MedicalCenter contained in this Agreement, Medical Center shall, at its cost and expense:          10.1 Provide properly trained professional, technical and support personnel and suppliesrequired for the proper performance of Gamma Knife procedures utilizing the Equipment. In thisregard, Medical Center shall make reasonable efforts to maintain on staff a minimum of two (2)Gamma Knife trained teams comprised of neurosurgeons, radiation oncologists and physicists. TheGamma Knife shall be available for use by all credentialed neurosurgeons, radiation oncologists andphysicists.          10.2 Direct, supervise and administer the provision of all services relating to theperformance of Procedures utilizing the Equipment in accordance with all applicable laws, rules andregulations.
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          10.3 Provide reasonable and customary marketing materials (i.e. brochures, announcements,etc.) together with administrative and physician support (e.g.,seminars for physicians by neurosurgeons and radiation therapists, in accordance with MedicalCenter’s policies and procedures, etc.) for the Equipment to be operated by the Medical Center.The obligation to provide marketing materials and administration and physician support shall beincluded in, and not in addition to, the annual marketing budget referenced in Section 7 above.          10.4 Keep and maintain the Equipment and the Site fully protected, secure and free fromunauthorized access or use by any person to the extent that Medical Center provides security forits other radiation oncology services.          10.5 Operate a fully functional radiation therapy department at the Site or Affiliate sitewhich shall include the Equipment.     11. Additional Covenants of GKF. In addition to the other covenants of GKF contained in thisAgreement, GKF, at its cost and expense, shall:          11.1 Use its best efforts to require Elekta to meets its contractual obligations to GKF andMedical Center upon delivery of the Equipment and put the Equipment, as soon as reasonablypossible, into good, safe and serviceable condition and fit for its intended use in accordance withthe manufacturer’s specifications, guidelines and field modification instructions.          11.2 Cause Medical Center to enjoy the use of the Equipment, free of the rights of any otherpersons except for those rights reserved by GKF or granted to Elekta under the LGK Agreement.          11.3 Cover the tuition costs for up to ten (10) Perfexion training slots for physicians andphysicists who will be using the Equipment. Travel and entertainment associated with trainingshall not be the responsibility of GKF.     12. Maintenance of Equipment; Damage or Destruction of Equipment.          12.1 During the Term and except as otherwise provided in this Agreement, GKF, at its cost andexpense, shall (a) maintain the Equipment in good operating condition and repair, reasonable wearand tear excepted, and (b) maintain in full force and effect an Advanced Service Agreement withElekta (“Service Agreement”) and any other service or other agreements required to fulfill GKF’sobligation to repair and maintain the Equipment under this Section 12. Medical Center shallpromptly notify GKF in the event of any damage or destruction to the Equipment or of any requiredmaintenance or repairs to the Equipment, regardless of whether such repairs or maintenance arecovered or not covered by the Service Agreement. GKF shall pursue all remedies available to itunder the Service Agreement and under any warranties made by Elekta with respect to the Equipmentso that the Equipment will at all times during the
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Term of this Agreement be free from defects in design, materials and workmanship and willconform to Elekta’s technical specifications concerning the Equipment.          12.2 GKF and Elekta shall have the right to access the Equipment for the purpose of inspectionand the performance of repairs at all reasonable times, upon reasonable advance notice and with aminimum of interference or disruptions to Medical Center’s regular business operations.          12.3 Medical Center shall be liable for, and in the manner described in Section 22 below shallindemnify GKF from and against, any damage to or destruction of the Equipment caused by the misuse,improper use, or other intentional and wrongful or negligent acts or omissions of Medical Center’sofficers, employees, agents, contractors and physicians. In the event the Equipment is damaged asa result of the misuse, improper use, or other intentional and wrongful or negligent acts oromissions of Medical Center’s officers, employees, agents, contractors and/or physicians, to theextent such damage is not covered by the Service Agreement or any warranties or insurance, GKF mayservice or repair the Equipment as needed and the cost thereof shall be paid by Medical Center toGKF immediately upon written request together with interest thereon at the rate of one percent (1%)per month (or the maximum monthly interest rate permitted to be charged by law between anunrelated, commercial borrower and lender, if less) and reasonable attorneys’ fees and costsincurred by GKF in collecting such amount from Medical Center. Any work so performed by GKF shallnot deprive GKF of any of its rights, remedies or actions against Medical Center for such damages.          12.4 If the Equipment is rendered unusable as a result of any physical damage to ordestruction of the Equipment, Medical Center shall give GKF written notice thereof. GKF shalldetermine, within thirty (30) days after it is given written notice of such damage or destruction,whether the Equipment can be repaired. In the event GKF determines that the Equipment cannot berepaired (a) subject to Section 12.3 above, GKF, at its cost and expense, shall replace theEquipment as soon as reasonably possible taking into account the availability of replacementequipment from Elekta, Elekta’s other then existing orders for equipment, and the then existinglimitations on Elekta’s manufacturing capabilities, (b) the Term of this Agreement shall beextended for the period of time the Equipment is unusable, and (c) this Agreement shall continue infull force and effect as though such damage or destruction had not occurred. In the event GKFdetermines that the Equipment can be repaired, GKF shall cause the Equipment to be repaired as soonas reasonably possible thereafter. Medical Center shall fully cooperate with GKF to effect thereplacement of the Equipment or the repair of the Equipment (including, without limitation,providing full access to the Site) following the damage or destruction thereof.     13. Alterations and Upgrades to Equipment.
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          13.1 Medical Center shall not make any modifications, alterations or additions to theEquipment (other than normal operating accessories or controls) without the prior written consentof GKF. Medical Center shall not, and shall not permit any person other than representatives ofElekta or any other person authorized by GKF to, effect any inspection, adjustment, preventative orremedial maintenance, or repair to the Equipment without the prior written consent of GKF. Allmodifications, alterations, additions, accessories or operating controls incorporated in or affixedto the Equipment (herein collectively called “additions” and included in the definition of“Equipment”) shall become the property of the GKF upon termination of this Agreement. Included inthis Agreement is an Equipment modification allowance of * for modifications that are mutuallyagreed upon by the parties hereto. Equipment modification costs in excess of * shall be theresponsibility of Medical Center.          13.2 The necessity and financial responsibility for modifications, additions or upgrades tothe Equipment, including the reloading of the Cobalt-60 source, shall be mutually agreed upon byGKF and Medical Center. If (a) GKF and Medical Center agree to reload the Cobalt-60 source (i.e.,on or around the end of the fifth (5th) year of the Term), and (b) GKF pays the reloadcosts associated therewith up to * then, notwithstanding any provisions to the contrary herein, theinitial Term shall be automatically extended for an additional three (3) years. Cobalt-60 reloadcosts in excess of * shall be the responsibility of Medical Center. Alternatively, Medical Centermay elect to pay the entire costs of the Cobalt-60 reload in which case the Term of the Agreementshall remain unchanged.          13.3 All software upgrades provided at no charge to GKF under the terms of its maintenanceagreement with Elekta shall be provided at no charge to Medical Center. All other software upgradesshall be the responsibility of Medical Center, and shall not be included as part of the Equipmentmodification allowance.     14. Financing of Equipment by GKF. GKF, in its sole discretion, may finance the Equipment.Financing may be in the form of an installment loan, a capitalized lease or other commerciallyavailable debt or financing instrument. If GKF finances the Equipment through an installment loan,GKF shall be required to provide the Equipment as collateral for the loan. If GKF finances theEquipment through a capitalized lease, title shall vest with the lessor until such time as GKFexercises its buy-out option under the lease, if any. If required by the lender, lessor or otherfinancing entity (the “Lender”), GKF may assign its interest under this Agreement as security forthe financing. Medical Center’s interest under this Agreement shall be subordinate to theinterests of the Lender.     15. Equipment Operational Costs. Except as otherwise expressly provided in this Agreement,Medical Center shall be responsible and liable for all costs and expenses incurred, directly orindirectly, in connection with the operation and use of the Equipment during the Term, including,without limitation, but subject to Section 11.3 above, the
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costs and expenses required to provide trained physicians, professionals, and technical andsupport personnel, supplies and other items required to properly operate the Equipment and performProcedures.     16. Taxes. GKF shall pay all sales or use taxes imposed or assessed in connection with theuse or purchase of the Equipment and all personal property taxes imposed, levied or assessed on theownership and possession of the Equipment during the Term. Unless Medical Center provides GKF witha tax exemption certificate, all other taxes, assessments, licenses or other charges imposed,levied or assessed on the Equipment during the Term for which Medical Center is not expresslyexempt, shall be paid by Medical Center before the same shall become delinquent, whether such taxesare assessed or would ordinarily be assessed against GKF or Medical Center; provided, however,Medical Center shall not be required to pay any federal, state or local income, franchise,corporation or excise taxes imposed upon GKF’s net income realized from the Purchased ServicesPayments of the Equipment. In case of a failure by either party to pay any taxes, assessments,licenses or other charges when and as required under this Section, the other party may pay all orany part of such taxes, in which event the amount paid by such paying party shall be immediatelypayable to the paying party upon written request together with interest thereon at the rate of atthe rate of one percent (1%) per month (or the maximum monthly interest rate permitted to becharged by law between an unrelated, commercial borrower and lender, if less).     17. No Warranties by GKF. Medical Center warrants that as of the First Procedure Date, itshall have (a) thoroughly inspected the Equipment to the best of their knowledge, (b) determinedthat to the best of its knowledge the Equipment is consistent with the size, design, capacity andmanufacture selected by it, and (c) satisfied itself that to the best of its knowledge theEquipment is suitable for Medical Center intended purposes and is good working order, condition andrepair. GKF will work with **Medical Center**in good faith to remedy any problems identified inwriting by **Medical Center**during **Medical Center’s inspection.**GKF SUPPLIES THE EQUIPMENT UNDERTHIS AGREEMENT IN ITS “AS IS” CONDITION. GKF, NOT BEING THE MANUFACTURER OF THE EQUIPMENT OR THEMANUFACTURER’S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO THEEQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, DESIGN, CONDITION,DURABILITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE. As betweenGKF and Medical Center, Medical Center shall bear all risks with respect to the foregoingwarranties. Notwithstanding the foregoing, GKF shall use its best efforts to ensure that allbenefits under the manufacturer’s warranty shall run to the Medical Center. GKF shall not beliable for any direct, indirect and consequential losses or damages suffered by Medical Center orby any other person, and Medical Center expressly waives any right to hold GKF liable hereunderfor, any claims, demands and liabilities arising out of or in connection with the
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design, manufacture, possession or operation of the Equipment, including**,**without limitation,injury to persons or property resulting from the failure of, defective or faulty design, operation,condition, suitability or use of the Equipment. All warranty or other similar claims with respectto the Equipment shall be made by Medical Center solely and exclusively against Elekta and anyother manufacturers or suppliers, but shall in no event be asserted against GKF. In this regardand with prior written approval of GKF, Medical Center may, in GKF’s name, but at Medical Center’ssole cost and expense, enforce all warranties, agreements or representations, if any, which mayhave been made by Elekta or manufacturers, suppliers or other third parties regarding the Equipmentto GKF or Medical Center. GKF shall not be responsible for the delivery or operation of theEquipment or for any delay or inadequacy of either or both of the foregoing.     18. Termination for Economic Justification. If, following the initial twenty four (24) monthsafter the First Procedure Date and following each subsequent 12 month period thereafter during theTerm, based upon the utilization of the Equipment and other factors considered relevant by GKF inthe exercise of its reasonable discretion, within a reasonable period of time after GKF’s writtenrequest, Medical Center does not provide GKF with a reasonable economic justification to continuethis Agreement and the utilization of the Equipment at the Medical Center, then and in that event,GKF shall have the option to terminate this Agreement by giving a written notice thereof to MedicalCenter not less than one hundred eighty (180) days prior to the effective date of the terminationdesignated in GKF’s written notice. Without limiting the generality of the foregoing, for purposesof this Section, “reasonable economic justification to continue this Agreement” shall not be deemedto exist (and GKF shall have the option to terminate this Agreement) if, during the twelve (12)month period immediately preceding the issuance of GKF’s written notice of termination, the “NetCash Flow” is negative. As used herein, “Net Cash Flow” shall mean, for the applicable period, (a)the aggregate Purchased Services Payments actually received by GKF during such period, minus (b)the sum of the aggregate (i) debt service on the Equipment, (ii) maintenance expenses, (iii)marketing support, and (iv) Equipment-related personal property taxes and insurance during suchperiod.     19. Options to Extend Agreement. As of the end of the Term, Medical Center shall have theoption either to:          19.1 Extend the Term of this Agreement for a specified period of time and upon such otherterms and conditions as may be agreed upon by GKF and Medical Center;          19.2 Terminate this Agreement as of the expiration of the Term. Upon the expiration of theTerm and within a reasonable time thereafter, GKF, at its cost and expense, may enter upon the Siteunder Medical Center supervision and remove the Equipment.
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          19.3 Medical Center may elect to purchase the Equipment from GKF for the fair market valueamount (as mutually agreed upon by the parties) as of the expiration date of Term, payable in cash(or other immediately available federal funds), at the end of the Term.Medical Center shall exercise one (1) of the three (3) options referred to above by giving anirrevocable written notice thereof to GKF at least one (1) year prior to the expiration of theinitial Term. Any such notice shall be sufficient if it states in substance that Medical Centerelects to exercise its option and states which of the three (3) options referred to above MedicalCenter is exercising. If Medical Center fails to exercise the option granted herein at least one(1) year prior to the expiration of the initial Term, the option shall lapse and this Agreementshall expire as of the end of the initial Term. Further, if Medical Center exercises the optionspecified in Section 19.1 above and the parties are unable to mutually agree upon the length of theextension of the Term or any other terms or conditions applicable to such extension prior to theexpiration of the Term, this Agreement shall expire as of the end of the initial Term.     20. Events of Default and Remedies.          20.1 Medical Center Event of Default. The occurrence of any one of the following shallconstitute a Medical Center event of default under this Agreement (a “Medical Center Event ofDefault”):               20.1.1 Medical Center fails to pay any Purchased Services Payment when due pursuant toParagraph 8 above and such failure continues for a period of thirty (30) days after written noticethereof is given by GKF or its assignee to Medical Center; however, if Medical Center cures thePurchased Services Payment default within the applicable thirty (30) day period, such default shallnot constitute an Event of Default.               20.1.2 Medical Center attempts to remove, sell, transfer, encumber, assign, sublet or partwith possession of the Equipment or any items thereof, except as expressly permitted herein.               20.1.3 Medical Center fails to observe or perform any of its covenants, duties or obligationsarising under this Agreement or the LGK Agreement and such failure continues for a period of thirty(30) days after written notice thereof by GKF to Medical Center; however, if Medical Center curesthe default within the applicable thirty (30) day period or if the default reasonably requires morethan thirty (30) days to cure, Medical Center commences to cure the default during the initialthirty (30) day period and Medical Center diligently completes the cure within sixty (60) daysfollowing the end of the thirty (30) day period, such default shall not constitute a Medical CenterEvent of Default; provided that the foregoing cure periods shall not apply to a Medical CenterEvent of Default under Subsections 20.1.1 or 20.1.2.
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               20.1.4 Medical Center ceases doing business as a going concern, makes an assignment for thebenefit of creditors, admits in writing its inability to pay its debts as they become due, files avoluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petitionseeking for itself any reorganization, arrangement, composition, readjustment, liquidation,dissolution or similar arrangement under any present or future statute, law or regulation or filesan answer admitting the material allegations of a petition filed against it in any such proceeding,consents to or acquiesces in the appointment of a trustee, receiver, or liquidator of it or of allor any substantial part of its assets or properties, or it or its shareholders shall take anyaction looking to its dissolution or liquidation.               20.1.5 Within sixty (60) days after the commencement of any proceedings against Medical Centerseeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief underany present or future statute, law or regulation, such proceedings shall not have been dismissed,or if within thirty (30) days after the appointment without Medical Center consent or acquiescenceof any trustee, receiver or liquidator of it or of all or any substantial part of its assets andproperties, such appointment shall not be vacated.               20.1.6 Medical Center is suspended or terminated from participation in the Medicare program.          20.2 GKF Event of Default. The occurrence of any one of the following shall constitute a GKFevent of default under this Agreement (a “GKF Event of Default”):               20.2.1 GKF causes Medical Center’s quiet enjoyment and use of the Equipment pursuant to thisAgreement to be materially interfered with (other than by reason of a Medical Center Event ofDefault or in connection with servicing, maintenance or repairs as contemplated in this Agreement),and GKF fails to cure such default within thirty (30) days after written notice thereof is given byMedical Center or its assignee to GKF; however, if GKF cures such default within the applicablethirty (30) day period, such default shall not constitute an GKF Event of Default.               20.2.2 GKF fails to pay or reimburse Medical Center for any monies payable by GKF to MedicalCenter pursuant to this Agreement and such failure continues for a period of thirty (30) daysafter written notice thereof is given by Medical Center or its assignee to GKF; however, if GKFcures the default within the applicable thirty (30) day period, such default shall not constitute aGKF Event of Default.               20.2.3 GKF fails to maintain in full force and effect the Service Agreement or any otherservice or other agreements required to fulfill GKF’s obligation to repair and maintain theEquipment under Section 12 above, and such failure continues
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for a period of fifteen (15) days after written notice thereof is given by Medical Center orits assignee to GKF; however, if GKF cures the default within the applicable fifteen (15) dayperiod, such default shall not constitute a GKF Event of Default.               20.2.4 GKF fails to observe or perform any of its covenants, duties or obligations arisingunder this Agreement and such failure continues for a period of thirty (30) days after writtennotice thereof by Medical Center to GKF; however, if GKF cures the default within the applicablethirty (30) day period or if the default reasonably requires more than thirty (30) days to cure,GKF commences to cure the default during the initial thirty (30) day period and GKF diligentlycompletes the cure within sixty (60) days following the end of the thirty (30) day period, suchdefault shall not constitute a GKF Event of Default; provided that the foregoing cure periods shallnot apply to a GKF Event of Default under Subsections 20.2.1, 20.2.2, or 20.2.3.               20.2.5 GKF ceases doing business as a going concern, makes an assignment for the benefit ofcreditors, admits in writing its inability to pay its debts as they become due, files a voluntarypetition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking foritself any reorganization, arrangement, composition, readjustment, liquidation, dissolution orsimilar arrangement under any present or future statute, law or regulation or files an answeradmitting the material allegations of a petition filed against it in any such proceeding, consentsto or acquiesces in the appointment of a trustee, receiver, or liquidator of it or of all or anysubstantial part of its assets or properties, or it or its shareholders shall take any actionlooking to its dissolution or liquidation.               20.2.6 Within sixty (60) days after the commencement of any proceedings against GKF seekingreorganization, arrangement, readjustment, liquidation, dissolution or similar relief under anypresent or future statute, law or regulation, such proceedings shall not have been dismissed, or ifwithin thirty (30) days after the appointment without GKF consent or acquiescence of any trustee,receiver or liquidator of it or of all or any substantial part of its assets and properties, suchappointment shall not be vacated.          20.3 Upon the occurrence of a Medical Center Event of Default or a GKF Event of Default, thenon-breaching party may at its option do any or all of the following:               20.3.1 By written notice to GKF, Medical Center may at its option immediately terminate thisAgreement as to the Equipment, wherever situated, but only upon the occurrence of a GKF Event ofDefault under Subsections 20.2.1 20.2.2 and/or 20.2.3. As a result of such termination, MedicalCenter may, at its option and upon written notice to GKF, demand that GKF immediately enter uponthe Site and remove the Equipment at GKF’s sole cost and expense. For the avoidance of doubt,Medical Center
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shall not have the right to terminate this Agreement by reason of a GKF Event of Default,other than due to the occurrence of a GKF Event of Default under Subsections 20.2.1 20.2.2 and/or20.2.3.               20.3.2 By written notice to Medical Center, GKF may at its option immediately terminate thisAgreement as to the Equipment, wherever situated, but only upon the occurrence of any of theMedical Center Events of Default as set forth in Subsections 20.1.1, 20.1.2, 20.1.6 and/ornoncompliance with Sections 10.1 and/or 10.5 above (which noncompliance has not been cured withinthe periods set forth in Section 20.1.3 above) (collectively, the “Termination Defaults”). For theavoidance of doubt, but without limiting GKF’s rights under Section 18 above (Termination forEconomic Justification), GKF shall not have the right to terminate this Agreement by reason of aMedical Center Event of Default, other than due to the occurrence of any Termination Default. As aresult of such termination pursuant to any Termination Default, GKF may (a) provide reasonablenotice to Medical Center of its intention to remove the Equipment, and upon such date as providedby notice, GKF may then enter upon the Site and remove the Equipment in a manner and at a time thatcauses least amount of disruption to patient care, or, at Medical Center’s election, Medical Centershall remove and return the Equipment to GKF, but in either event at Medical Center’s sole cost andexpense; and (b) recover from Medical Center as liquidated damages for the loss of the bargainrepresented by this Agreement and not as a penalty an amount equal to the present value of theunpaid estimated future Purchased Services Payments to be made by Medical Center to GKF through theend of the Term discounted at the rate of nine percent (9%), which liquidated damages shall becomeimmediately due and payable. The unpaid estimated future Purchased Services Payments shall bebased on the prior twelve (12) months Purchased Services Payments made by Medical Center to GKFhereunder with an annual four (4%) percent increase thereof through the end of the Term. MedicalCenter and GKF acknowledge that the liquidated damages formula set forth in this Sectionconstitutes a reasonable method to calculate GKF’s damages resulting from any Termination Defaultand under the circumstances existing as of the date of this Agreement.               20.3.3 With respect to all other Medical Center Events of Default, GKF may:               A. Sell, dispose of, hold, use or lease the Equipment, as GKF in its sole and absolutediscretion may determine (and GKF shall not be obligated to give preference to the sale, lease orother disposition of the Equipment over the sale, lease or other disposition of similar Equipmentowned or leased by GKF).               B. Exercise any other right or remedy which may be available to GKF under the UniformCommercial Code or any other applicable law or proceed by appropriate court action, withoutaffecting GKF’s title or right to possession of theEquipment, to enforce the terms hereof or to recover damages for the breach hereof or tocancel this Agreement as to the Equipment.
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               20.3.3 Upon termination of this Agreement or the exercise of any other rights or remediesunder this Agreement or available under applicable law following a Medical Center Event of Default,Medical Center shall, without further request or demand, pay to GKF all Purchased Services Paymentsand other sums owing under this Agreement. In the event that Medical Center shall pay theliquidated damages referred to in Section 20.3.2 above to GKF, GKF shall pay to Medical Centerpromptly after receipt thereof all rentals or proceeds received from the reletting or sale of theEquipment during the balance of the initial Term (after deduction of all costs and expenses,including reasonable attorneys fees and costs, incurred by GKF as a result of the Event ofDefault), said amount never to exceed the amount of the liquidated damages paid by Medical Center.However, Medical Center acknowledges that GKF shall have no obligation to sell the Equipment.Medical Center shall in any event remain fully liable for all damages as may be provided by law andfor all costs and expenses incurred by GKF on account of such default, including but not limitedto, all court costs and reasonable attorneys’ fees.               20.3.4 Subject to Section 17 above, each party shall in any event remain fully liable to theother non-defaulting party for all damages as may be provided by law and for all costs and expensesincurred by the non-defaulting party on account of such default, including but not limited to, allcourt costs and reasonable attorneys’ fees.               20.3.5 Subject to Sections 20.3.1 and 20.3.2 above (regarding limitations on the right toterminate this Agreement), the rights and remedies afforded a non-defaulting party under thisAgreement shall be deemed cumulative and not exclusive, and shall be in addition to any otherrights or remedies available to the non-defaulting party provided by law or in equity.     21. Insurance.          21.1 During the Term, GKF shall, at its cost and expense, purchase and maintain in effect anall risk property and casualty insurance policy covering the Equipment. The all risk property andcasualty insurance policy shall be for an amount not less than the replacement cost of theEquipment. Medical Center shall be named as an additional insured party on the all risk propertyand casualty insurance policy to the extent of its interest in the Equipment arising under thisAgreement. The all risk property and casualty insurance policy maintained by GKF shall beevidenced by a certificate of insurance or other reasonable documentation which shall be deliveredby GKF to Medical Center upon request following the commencement of this Agreement and as of eachannual renewal of such policy during the Term.
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          21.2 During the Term, Medical Center shall, at its cost and expense, self-insure (subject toGKF’s reasonable approval pursuant to Section 21.5 below) or purchase, and maintain in effectgeneral liability and professional liability insurance coverage/policies covering the Site(together with all premises where the Site is located) and the use or operation of the Equipment byMedical Center or its officers, directors, agents, employees, contractors or physicians. Thegeneral liability and professional liability insurance policies shall provide coverage in amountsnot less than One Million Dollars ($1,000,000.00) per occurrence and Five Million Dollars($5,000,000.00) annual aggregate. GKF shall be named as additional insured party on the generalliability and professional liability insurance coverage/policies to be maintained hereunder byMedical Center. The coverage/policies to be maintained by Medical Center hereunder shall beevidenced by a certificate of insurance or other reasonable documentation which shall be deliveredby Medical Center upon request to GKF no later than the First Procedure Date and as of each annualrenewal of such policies during the Term. Notwithstanding anything to the contrary herein, subjectto Section 6.4 above and any contributory fault by Medical Center and/or its employees,contractors, affiliates, agents or representatives, neither Medical Center nor its insurer shall beliable to GKF for any injury or loss to persons or property caused by the failure or malfunction ofthe Equipment itself or the improper installation of the Equipment or the improper installationand/or cleaning of hydraulic hoses in connection with the installation of new Equipment; but, as toimproper installation of the Equipment, such liability shall be that of and remain with GKF; and asto the Equipment itself, the liability shall be that of and remain with the manufacturer under theLGK Agreement.          21.3 During the construction of the Site and prior to the First Procedure Date, MedicalCenter, at its cost and expense, shall self-insure (subject to GKF’s reasonable approval pursuantto Section 21.5 below) or purchase, and maintain a general liability insurance policy whichconforms with the coverage amounts and other requirements described in Section 21.2 above and whichnames GKF as an additional insured party. The policy to be maintained by Medical Center hereundershall be evidenced by a certificate of insurance or other reasonable documentation which shall bedelivered by Medical Center to GKF prior to the commencement of any construction at the Site.          21.4 During the Term, Medical Center and GKF shall purchase and maintain all workerscompensation insurance to the maximum extent required by applicable law.          21.5 If Medical Center elects to self-insure, within twenty (20) days following the datehereof, Medical Center shall submit to GKF, in writing, information on Medical Center’s proposedself-insurance program and obtain GKF’s approval of the program, which approval shall not beunreasonably withheld. If GKF does notdisapprove of such self-insurance program within thirty (30) days following its receipt ofsuch information, GKF shall be deemed to have given its approval.
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     22. Indemnification.          22.1 Medical Center shall be liable for and shall indemnify, defend, protect and hold GKF andits members, managers, officers, employees, agents and contractors (collectively “GKF”) harmlessfrom and against all losses, claims, damages, liabilities, assessments, deficiencies, actions,proceedings, orders, judgments, liens, costs and other expenses (including reasonable attorney’sfees) of any nature or kind whatsoever asserted against or incurred by GKF (collectively “Damages”)which in any manner arise out of or relate to (a) the failure by Medical Center to fully perform,observe or satisfy its covenants, duties or obligations contained in this Agreement or in the LGKAgreement; (b) negligent, intentional or wrongful acts or omissions by Medical Center or any of itsofficers, directors, agents, contractors (or their subcontractors), or employees in connection withthe use and operation of the Equipment during the Term; (c) defects arising out of materials orparts provided, modified or designed by Medical Center for or with respect to the Site; (d) themaintenance of the Site during the Term by Medical Center; (e) Damages to the Equipment caused bythe negligent or wrongful acts or omissions of Medical Center, its agents, officers, employees orcontractors (if the Equipment is destroyed or rendered unusable, subject to Section 22.7 below,this indemnity shall extend up to (but not exceed) the full replacement value of the Equipment atthe time of its destruction less salvage value, if any); (f) the events or occurrences described inArticle 7.3 of the LGK Agreement to the same extent that Medical Center agrees to indemnify Elektathereunder (other than with respect to the failure of the Site to comply with the Site PlanningCriteria or defective maintenance of the Equipment under the Service Agreement); and (g) any othermatters for which Medical Center has specifically agreed to indemnify GKF pursuant to thisAgreement.          22.2 GKF shall be liable for and shall indemnify, defend, protect and hold Medical Center andits directors, members, managers, officers, employees, agents and contractors (collectively“Medical Center”) harmless from and against all losses, claims, damages, liabilities, assessments,deficiencies, actions, proceedings, orders, judgments, liens, costs and other expenses (includingreasonable attorney’s fees) of any nature or kind whatsoever asserted against or incurred byMedical Center (collectively “Damages”) which in any manner arise out of or relate to (a) thefailure by GKF to fully perform, observe or satisfy its covenants, duties or obligations containedin this Agreement; (b) negligent, intentional or wrongful acts or omissions by GKF or any of itsofficers, directors, agents, contractors (or their subcontractors), or employees in connection withthe installation or removal of the Equipment, (c) the failure by GKF to maintain the Equipment asprovided in this Agreement; and (d) any other matters for which GKF has specifically agreed toindemnify Medical Center pursuant to this Agreement.
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          22.3 Upon the occurrence of an event for which GKF or Medical Center is entitled toindemnification under this Agreement (“Indemnitee”), such party shall give written notice thereofto the other party setting forth the type and amount of Damages. If the indemnity relates to aThird Party Claim (as defined in Section 22.4 below), the matter shall be subject to Section 22.4below. If the indemnity relates to any Damages other than a Third Party Claim, not more thanthirty (30) days after written notice is given, the indemnifying party shall acknowledge itsobligation in writing to the Indemnitee to indemnify hereunder and pay the Damages in full to theIndemnitee.          22.4 GKF or Medical Center, as Indemnitee, shall give written notice to the other party asIndemnitor as soon as reasonably possible after the Indemnitee has knowledge of any third partyclaim or legal proceedings (“Third Party Claim”) for which the Indemnitee is entitled toindemnification under this Section 22. Indemnitor shall (a) immediately assume, at its sole costand expense, the defense of the Third Party Claim with legal counsel approved by the Indemnitee(which approval will not be unreasonably withheld, delayed or conditioned), and (b) as soon asreasonably possible after Indemnitee’s written notice is given to the Indemnitor, acknowledge inwriting to Indemnitee its obligation to indemnify Indemnitee in accordance with the terms of thisAgreement. If either party as the Indemnitor fails to assume the defense of a Third Party Claim orfails to timely acknowledge in writing its obligation to indemnify the Indemnitee, then, theIndemnitee may assume the defense of the Third Party Claim in the manner described in Section 22.5below. Each party shall cooperate with the other in the defense of any Third Party Claim. Anysettlement or compromise of a Third Party Claim to which either party is a party shall be subjectto the express written approval of the other party, which approval shall not be unreasonablywithheld, delayed or conditioned as long as an unconditional term of the settlement or compromiseis the full and absolute release of the Indemnitee from all Damages arising out of the Third PartyClaim. Either party as Indemnitee, at its own cost and expense, may participate on its own behalfwith legal counsel of its own selection in the defense of any Third Party Claim which may have amaterial impact on it.          22.5 If either party having the obligation as Indemnitor fails to promptly assume the defenseof any Third Party Claim, the Indemnitee may assume the defense of the Third Party Claim with legalcounsel selected by the Indemnitee, all at the Indemnitor’s cost and expense. The defense of anaction by an Indemnitee under this Section 22.5 shall not impair, limit or otherwise restrictIndemnitor’s indemnification obligations arising under this Section 22 or Indemnitee’s right toenforce such obligations.          22.6 The indemnity obligations under this Section 22 shall expire on the expiration of theapplicable statute of limitations relating to the underlying claim that is the subject of theindemnification claim. Any indemnification obligation shall be in proportion to the amount ofresponsibility found attributable to the Indemnitor.
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          22.7 The indemnification obligations set forth in this Agreement are intended to supplement,and not supersede, supplant or replace, any coverage for Damages which may be available under anyinsurance policies that may be maintained by GKF or Medical Center. In the event any Damages maybe covered by insurance policies, the parties shall exercise good faith and use their best effortsto obtain the benefits of and apply the available insurance coverage to the Damages subject toindemnification under this Agreement. In the event that an insurer provides coverage under aninsurance policy on the basis of a “reservation of rights”, the indemnification obligations underthis Agreement shall apply to all Damages which are finally determined as not being covered underthe insurance policy.     23. Miscellaneous.          23.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of theparties hereto and their respective successors and assigns. Medical Center shall not assign thisAgreement or any of its rights hereunder or sublease the Equipment without the prior writtenconsent of GKF, which consent shall not be unreasonably withheld; provided, however that theMedical Center may assign this Agreement without prior written consent of GKF to an entitycontrolled by, controlling, or under common control with the Medical Center **and**which entity is theholder of the general acute care hospital license for the facility at which the Equipment islocated, and provided further, that such entity shall have credit rating **and**financial positionequivalent to or higher than that of Medical Center as reasonably determined by GKF**.**Unlessotherwise agreed to in writing by GKF, an assignment or sublease shall not relieve Medical Centerof any liability for performance of this Agreement during the remainder of the Term. Any purportedassignment or sublease made without GKF’s prior written consent shall be null, void and of no forceor effect**.**          23.2 Agreement to Perform Necessary Acts. Each party agrees to perform any further acts andexecute and deliver any further documents which may be reasonably necessary or otherwise reasonablyrequired to carry out the provisions of this Agreement.          23.3 Validity. If for any reason any clause or provision of this Agreement, or theapplication of any such clause or provision in a particular context or to a particular situation,circumstance or person, should be held unenforceable, invalid or in violation of law by any courtor other tribunal of competent jurisdiction, then the application of such clause or provision incontexts or to situations, circumstances or persons other than that in or to which it is heldunenforceable, invalid or in violation of law shall not be affected thereby, and the remainingclauses and provisions hereof shall nevertheless remain in full force and effect.
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          23.4 Attorney’s Fees and Costs. In the event of any action, arbitration or other proceedingsbetween or among the parties hereto with respect to this Agreement, the non-prevailing party orparties to such action, arbitration or proceedings shall pay to the prevailing party or parties allcosts and expenses, including reasonable attorneys’ fees, incurred in the defense or prosecutionthereof by the prevailing party or parties. The party which is a “prevailing party” shall bedetermined by the arbitrator(s) or judge(s) hearing the matter and shall be the party who isentitled to recover his, her or its costs of suit, whether or not the matter proceeds to a finaljudgment, decree or determination. A party not entitled to recover his, her or its costs of suitshall not recover attorneys’ fees. If a prevailing party or parties shall recover a decision,decree or judgment in any action, arbitration or proceeding, the costs and expenses awarded to suchparty may be included in and as part of such decision, decree or judgment.          23.5 Entire Agreement; Amendment. This Agreement together with the Exhibits attached heretoconstitutes the full and complete agreement and understanding between the parties hereto concerningthe subject matter hereof and shall supersede any and all prior written and oral agreements withregard to such subject matter. This Agreement may be modified or amended only by a writteninstrument executed by all of the parties hereto.          23.6 Number and Gender. Words in the singular shall include the plural, and words in aparticular gender shall include either or both additional genders, when the context in which suchwords are used indicates that such is the intent.          23.7 Effect of Headings. The titles or headings of the various paragraphs hereof are intendedsolely for convenience or reference and are not intended and shall not be deemed to modify, explainor place any construction upon any of the provisions of this Agreement.          23.8 Counterparts. This Agreement may be executed in one or more counterparts by the partieshereto. All counterparts shall be construed together and shall constitute one agreement.          23.9 Governing Law. This Agreement shall be interpreted and enforced in accordance with theinternal laws, and not the law of conflicts, of the State of Ohio applicable to agreements made andto be performed in that State by a court of competent jurisdiction sitting in Montgomery County,Ohio. The parties waive, to the fullest extent they may effectively do so, the defense of aninconvenient or inappropriate forum to the maintenance of any action or proceeding, and waive anydefense based on lack of personal jurisdiction of any such party.
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          23.10 Exhibits. All exhibits attached hereto and referred to in this Agreement are herebyincorporated by reference herein as though fully set forth at length.          23.11 Ambiguities. The general rule that ambiguities are to be construed against the draftershall not apply to this Agreement. In the event that any provision of this Agreement is found tobe ambiguous, each party shall have an opportunity to present evidence as to the actual intent ofthe parties with respect to such ambiguous provision.          23.12 Representations. Each of the parties hereto represents (a) that no representation orpromise not expressly contained in this Agreement has been made by any other party hereto or by anyof its agents, employees, representatives or attorneys; (b) that this Agreement is not beingentered into on the basis of, or in reliance on, any promise or representation, expressed orimplied, other than such as are set forth expressly in this Agreement; (c) that it has beenrepresented by counsel of its own choice in this matter or has affirmatively elected not to berepresented by counsel; (d) it is duly organized, validly existing and in good standing under thelaws of the jurisdiction of its organization, (e) it has full power and authority to execute,deliver and perform this Agreement, and (f) the execution, delivery and performance of thisAgreement has been duly authorized by all necessary corporate or other similar action.          23.13 Non-Waiver. No failure or delay by a party to insist upon the strict performance of anyterm, condition, covenant or agreement of this Agreement, or to exercise any right, power or remedyhereunder or under law or consequent upon a breach hereof or thereof shall constitute a waiver ofany such term, condition, covenant, agreement, right, power or remedy or of any such breach orpreclude such party from exercising any such right, power or remedy at any later time or times.          23.14 Notices. All notices, requests, demands or other communications required or permittedto be given under this Agreement shall be in writing and shall be delivered to the party to whomnotice is to be given either (a) by personal delivery (in which case such notice shall be deemed tohave been duly given on the date of delivery), (b) by next business day air courier service (e.g.,Federal Express or other similar service) (in which case such notice shall be deemed given on thebusiness day following deposit with the air courier service), or (c) by United States mail, firstclass, postage prepaid, registered or certified, return receipt requested (in which case suchnotice shall be deemed given on the third (3rd) day following the date of mailing), and properlyaddressed as follows:          To GKF:  Craig K. Tagawa