Exhibit 10.46**EQUIPMENT LEASE AGREEMENT**     **THIS EQUIPMENT LEASE AGREEMENT**(“Agreement”) is made and entered into on March 21, 2003, byand between **GK FINANCING, LLC,**a California limited liability company (“GKF”), and NorthernWestchester Hospital Center, a not for profit corporation (“Hospital”), with reference to thefollowing facts:**R E C I T A L S**     WHEREAS, Hospital wants to lease a Leksell Stereotactic Gamma Unit, model C with AutomaticPositioning System manufactured by Elekta Instruments, Inc., (hereinafter referred to as the“Equipment”); and     WHEREAS, GKF is willing to lease the Equipment which GKF has acquired from Elekta Instruments,Inc., a Georgia corporation (hereinafter referred to as “Elekta”), to Hospital, pursuant to theterms and conditions of this Agreement.**A G R E E M E N T**     **NOW, THEREFORE,**in consideration of the mutual covenants, conditions and agreements set forthherein, and for such other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, the parties hereto agree as follows:     1. Lease. Subject to and in accordance with the covenants and conditions set forth inthis Agreement, GKF hereby leases to Hospital, and Hospital hereby leases from GKF, the Equipment.The Equipment to be leased to Hospital pursuant to this Agreement shall include the Gamma Knifetechnology as specified in Exhibit 1, including all hardware and software related thereto.     2. LGK Agreement. Simultaneously with the execution of this Agreement, Hospital andElekta shall enter into that certain LGK Agreement (the “LGK Agreement”), a copy of which isattached hereto as Exhibit 1. Hospital shall perform, satisfy and fulfill all of its obligationsarising under the LGK Agreement when and as required thereunder. Hospital acknowledges that GKF isa third party beneficiary of the LGK Agreement and, in that capacity, GKF shall be entitled toenforce Hospital’s performance, satisfaction and fulfillment of its obligations thereunder.     3. Term of the Agreement. The initial term of this Agreement (the “Term”) shallcommence as of the date hereof and, unless earlier terminated or extended in accordance with theprovisions of this Agreement, shall continue for a period of ten (10) years following the date ofthe performance of the first clinical Gamma Knife procedure (the “First Procedure Date”) at theSite. Hospital’s obligation to make the rental payments to GKF for the Equipment described in * Confidential material has been omitted in accordance with rule 24b-2.
 

 
Section 8 below shall commence as of the date of performance of the first clinical Gamma Knifeprocedure (the **“**First Procedure Date)”.     4. User License.          4.1 Hospital shall apply for and obtain in a timely manner a User License from the NuclearRegulatory Commission and, if necessary, from the applicable state agency authorizing it to takepossession of and maintain the Cobalt supply required in connection with the use of the Equipmentduring the term of this Agreement. Hospital also shall apply for and obtain in a timely manner allother licenses, permits, approvals, consents and authorizations which may be required by state orlocal governmental or other regulatory agencies for the development, construction and preparationof the Site, the charging of the Equipment with its Cobalt supply, the conduct of acceptance testswith respect to the Equipment, and the use of the Equipment during the Term, as more fully setforth in Article 2.1 of the LGK Agreement. The effectiveness of the agreement is subject to theprior approval of the installation of the Equipment by the New York State Department of Health andthe satisfaction by the Hospital of all its remaining obligations to obtain approvals set forth inthis Section 4. Hospital, at its cost and expense, shall obtain all permits, certifications,approvals or authorizations required by applicable federal, state or local laws, rules orregulations necessary to construct and improve the Site for the installation, use and operation ofthe Equipment.     5. Delivery of Equipment; Site.          5.1 GKF shall coordinate with Elekta and Hospital to have the Equipment delivered to Hospitalat 400 East Main Street Mt. Kisco NY (the “Site”) on or prior to the delivery date agreed upon byHospital and Elekta in writing. GKF makes no representations or warranties concerning delivery ofthe Equipment to the Site or the actual date thereof.          5.2 Hospital, at its cost and expense, shall provide a safe, convenient and properly preparedSite for the Equipment in accordance with Elekta’s guidelines, specifications, technicalinstructions and site planning criteria (which site planning criteria are attached as Exhibit B tothe LGK Agreement) (collectively the “Site Planning Criteria”). GKF has reviewed and approved the“Site Planning Criteria” and the location of the site.     6. Site Preparation and Installation of Equipment.          6.1 Hospital, at its cost, expense and risk, shall prepare all plans and specificationsrequired to construct and improve the Site for the installation, use and operation of the Equipmentduring the Term (**“**Hospital Plan”, as set forth on Exhibit 6.1 of this agreement) The HospitalPlan, to the best of GKF’s knowledge comply in all respects with the Site Planning Criteria**.**Withrespect to the Hospital Plan, GKF makes no representations regarding the compliance with applicablefederal, state or local laws or regulations, including building codes, or those portions of theSite Planning Criteria relating to the load bearing capacity of the floor of the treatment room andto radiation protection. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
          The Hospital Plan has been reviewed and approved by GKF and Elekta and all material changesthereto shall be subject to the written approval of GKF and Elekta. Hospital shall provide GKF andElekta with a reasonable period of time for the review and consideration of all material changes tothe Hospital Plan following submission thereof for approval.          6.2 Based upon the Hospital Plan approved by GKF and Elekta, Hospital, at its cost, expenseand risk, shall prepare, construct and improve the Site as necessary for the installation, use andoperation of the Equipment during the Term, including, without limitation, providing all temporaryor permanent shielding required for the charging of the Equipment with the Cobalt supply and forits subsequent use, selecting and constructing a proper foundation for the Equipment and thetemporary or permanent shielding, aligning the Site for the Equipment, and installing allelectrical systems and other wiring required for the Equipment. In connection with theconstruction of the Site, Hospital, at its cost and expense, shall select, purchase and install allradiation monitoring equipment, devices, safety circuits and radiation warning signs required atthe Site in connection with the use and operation of the Equipment, all in accordance withapplicable federal, state and local laws, rules, regulations or custom.          6.3 In addition to construction and improvement of the Site, Hospital, at its cost, expenseand risk, shall be responsible for the installation of the Equipment at the Site, including thepositioning of the Equipment on its foundation at the Site in compliance with the Site PlanningCriteria.          6.4 Upon completion of construction, the Site shall (a) comply in all material respects withthe Hospital Plan and all applicable federal, state and local laws, rules and regulations, and (b)be safe and suitable for the ongoing use and operation of the Equipment during the Term.          6.5 Hospital shall use its reasonable efforts to satisfy its obligations under this Section 6in a timely manner. Hospital shall provide information to GKF as reasonably requested by GKFconcerning site preparation, the progress in the design of the Site, the preparation of plans andspecifications, the construction and improvement of the Site, and the satisfaction of its otherobligations under this Section 6. In all events, Hospital shall complete all construction andimprovement of the Site required for the installation, positioning and testing of the Equipment onor prior to the delivery date described in Section 5.1 above. If the Site is not complete as ofthe delivery date described in Section 5.1 above plus a sixty (60) day grace period (other than byreasons of force majeure as provided in Section 23.16 below) (the “late completion date”), Hospitalshall reimburse GKF for its out-of-pocket financing costs incurred with respect the Equipment atthe Bank of America prime interest rate (which rate is sometimes referred to by the Bank as its“reference rate”) plus 2% based upon GKF’s cost of the Equipment for the period between the latecompletion date and the date that the Site is completed to the extent necessary to allow for theinstallation, positioning and testing of the Equipment. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
          6.6 During the Term, Hospital, at its cost and expense, shall maintain the Site in a goodworking order, condition and repair, reasonable wear and tear excepted.          6.7 Hospital shall be liable for, and shall indemnify GKF in the manner described in Section22 below from and against, all damage to the Equipment caused by (a) defects in construction of theSite or in installation or positioning the Equipment at the Site ; (b) defects arising out ofmaterials or parts provided, modified or designed by Hospital for or with respect to the Site,except any defects rising from the Equipment ; (c) negligent or wrongful acts or omissions byHospital or any of its officers, directors, agents, contractors (or their subcontractors), oremployees in connection with the construction and preparation of the Site ; and (d) negligent orwrongful operation of the Equipment at the Site. Further, neither the review and approval of Siteplans, specifications and/or positioning plans by GKF and/or Elekta, nor the construction of anyother Site preparation, shall relieve Hospital for liability for damages to the Equipment caused bythe failure to comply with applicable federal, state or local laws or regulations, includingbuilding codes, or those portions of the Site Planning Criteria relating to the load bearingcapacity of the floor of the treatment room and to radiation protection.     7. Educational Support. Hospital shall provide community education (e.g.,seminars) tophysicians concerning the Equipment and Gamma Knife procedures and community education tophysicians. Not less than ninety (90) days prior to the First Procedure Date and the commencementof each succeeding twelve (12) month period during the Term, GKF and Hospital shall develop amutually agreed upon educational budget and plan for the succeeding twelve (12) month period of theTerm. Once approved, the educational budget and plan shall be implemented by Hospital inaccordance with its terms. As funds are expended by Hospital in accordance with the educationalbudget and plan, Hospital shall submit invoices (together with documentary evidence supporting theinvoices) for its expenditures and, promptly following the receipt of such invoices, GKF shallreimburse Hospital for * of the expenditures up to an annual maximum of *. It is acknowledged bythe parties that such expenses to be reimbursed by GKF as provided in this Section 7 have beenincluded in GKF’s calculation of Hospital’s Lease Payments so as to allow GKF to recover such GKFreimbursed expenses during the Term of this Agreement.     8. Payment Terms          8.1 Per Procedure Payments. As rent for the lease of the Equipment to Hospitalpursuant to this Agreement, Hospital shall pay to GKF the sum as set forth in Exhibit 8 of thisAgreement. (the “Lease Payment”). Hospital shall pay the Lease Payment for each “Procedure” thatis completed by the Hospital or its representatives or affiliates at the Site, as defined inSection 5.1, irrespective of whether the Procedure is performed on the Equipment or using any otherequipment or devices. As used herein, the term a “Procedure” means any treatment usingexternal, single fraction, conformal radiation, commonly called stereotactic radiosurgery, that mayinclude one or more isocenters during the patient treatment session, delivered to any site(s)superior to the foramen magnum. Hospital’s obligation to make Lease Payments pursuant to thisSection shall be expressly limited by Section 8.2, 8.3 and 8.4 hereof. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
               If no Procedures are performed by Hospital or any other person utilizing the Equipment or anyother equipment devices at the Hospital**,**Hospital shall not owe any Lease Payment to GKF. GKFshall submit an invoice to Hospital on the fifteenth (15th) and the last day of each calendar month(or portion thereof) for the actual number of Procedures performed during the first and second halfof the calendar month, respectively. The Hospital shall pay invoices received during the initialthree (3) months following the First Procedure Date within sixty (60) days after receipt of suchinvoices by the Hospital. For invoices received by the Hospital following the initial three (3)months following the First Procedure Date, the Hospital shall pay invoices within thirty (30) daysafter submission by GKF to Hospital. All or any portion of an invoice which is not paid in fullwithin forty-five (45) days after submission (with respect to invoices provided after the intialthree (3) months following the First Procedure Date) or seventy (75) days after submission (withrespect to invoices provided during the initial three (3) months following the First ProcedureDate) shall bear interest at the rate of the lesser of one percent (1.0%) per month (or the maximummonthly interest rate permitted to be charged by law between an unrelated, commercial borrower andlender, if less) until the unpaid rent invoice together with all accrued interest thereon is paidin full. If GKF shall at any time accept a Lease Payment from Hospital after it shall become due,such acceptance shall not constitute or be construed as a waiver of any or all of GKF’s rightsunder this Agreement, including the rights of GKF set forth in Section 20 hereof.               Within ten (10) days after Hospital’s receipt of written request by GKF, GKF shall have theright to audit Hospital’s books and records (including, without limitation, the books and recordspertaining to any other radiosurgery equipment or devices) relating solely to the Hospital’sprovision of Procedures to verify the number of Procedures that have been performed by Hospital,and Hospital shall provide GKF with access to such books and records; provided that any patientnames or identifiers shall not be disclosed. GKF shall not have access to nor shall it directly orindirectly access any “ Patient Health Information” as such terms are defined by HIPAA. GKF agreesthat it shall execute such documents and agreements as may be reasonably required by Hospital toassure compliance with HIPAA.               In the event a Procedure is not completed due to a technical problem with the Equipment, theHospital will not be charged a Lease Payment for such Procedure.          8.2 Adjustment to Lease Payment Due to Increase/Decrease in the Reimbursement Rate.               (a) If the “Reimbursement Rate” in effect on any “Reset Date” is * less than the “Base Rate”(as such quoted terms are defined in Section 8.2(e) below), Hospital shall inform GKF in writingwithin ninety (90) days after the applicable Reset Date and shall provide GKF with the informationused in calculating such Reimbursement Rate. Within thirty (30) days after GKF’s receipt of suchnotice, the parties shall meet to renegotiate in good faith the Lease Payments payable by Hospitalunder this Agreement. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
                    In determining the renegotiated Lease Payment, any reduction or increase thereto may or maynot be (and is not required to be) in proportion to the reduction to the Reimbursement Rate.Furthermore, any reduction to the Lease Payment will be calculated to provide Hospital with“Operating Income” (as defined below) at a break even level as a result of such reduction (i.e.,any reduction shall not exceed the amount required to achieve such “Break Even Level”. The term“Break Even Level” is defined herein as zero dollars ($0) in Operating Income (as defined inSection 8.2(e) hereof) arising from the operation of the Equipment; provided that no Lease Paymentreduction shall be imposed that would result in negative Operating Income to GKF in accordance withsubsection 8.2(e) below. If the Lease Payment proposed by Hospital would result in negativeOperating Income to GKF, then (i) Hospital shall have the recourse to arbitration as provided inSection 8.2(c) below, and (ii) this Agreement shall remain unchanged and in full force and effectuntil outcome of arbitration, if any.               (b) Each of GKF and Hospital shall permit the other party and its representatives to inspectits books and records pertaining to the Equipment in order to verify such Operating Income. AllHIPAA regulations will be applied in the inspection of Hospital’s books and GKF agrees that itshall execute such documents and agreement as may be reasonably required by Hospital to assurecompliance with HIPAA.               (c ) If the Hospital and GKF are unable to reach an agreement on the new Lease Payment rate,then GKF and Hospital shall within ten (10) days of their failure to reach an agreement inaccordance with the last sentence of Section 8.2(a), then GKF and Hospital shall each appoint anarbitrator within ten (10) days of their failure to reach an agreement in accordance with the timeframes set forth in Section 8.2(a). Such arbitrators shall appoint a third arbitrator within ten(10) days after their appointment. The arbitrators shall have not less than ten (10) yearsexperience in medical equipment financing, be in good standing with the American ArbitrationAssociation or other comparable organization, and have no prior relationship, attorney/client orotherwise, with any of the parties. The parties shall present all necessary information concerningthe dispute to the arbitrators within thirty (30) days following the arbitrator’s appointment.Such arbitrators shall review the information presented by both parties and shall render a decisionwithin thirty (30) days of his of her appointment. The arbitrator’s decision, which shall be madeby majority or unanimously, shall be based on a determination of an equitable apportioning of theeconomic losses resulting to the Hospital as a result of the decrease in the Reimbursement Rateamong the Hospital and GKF, and taking into account the capital investment made by the parties.The arbitrators’ decision shall be binding upon the parties and non-appealable. The fees andexpenses of the arbitrator shall be shared equally between the parties. The foregoing arbitrationprocedure shall apply only to disagreements arising from this Section 8.2 and not to any otherdisputes or disagreements arising from this Agreement.               (d) If the parties mutually agree on a renegotiated Lease Payment or if a renegotiated LeasePayment is determined by the arbitrator as set forth above, then such renegotiated Lease Paymentshall become effective on the date that is three (3) months following the applicable Reset Date,and Exhibit 8.2 hereto shall be deemed automatically amended as of such date. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
               (e) As used in this Section 8.2, (i) the “Reimbursement Rate” means the average aggregatetechnical component reimbursement for Gamma Knife Procedures received by Hospital from all payorsources in effect as of any Reset Date; (ii) the “Base Rate” means the average aggregate technicalcomponent reimbursement for Gamma Knife Procedures received by Hospital from all payor sources ineffect on the date which is one (1) year after the First Procedure Date**;**provided that, if theLease Payment is renegotiated by the parties at any time or from time-to-time pursuant to thisSection 8.2, then, immediately following the implementation of the renegotiated Lease Payment, theBase Rate shall become the Reimbursement Rate in effect as of the Reset Date that immediatelyprecedes the implementation of such renegotiated Lease Payment; (iii) the “Reset Date” means thedate which is two (2) years after the First Procedure Date of this Agreement and each annualanniversary date thereafter and (iv) “Operating Income” with respect to either party, means therevenues generated by such party from the Equipment less such party’s corresponding directoperating expenses related to the Equipment, including, without limitation, applicable interest anddepreciation expenses on the Equipment and Site improvements, but excluding physician professionalfees and direct or indirect administrative overhead expenses.               (f) If the Lease Payment is reduced at any time or from time-to-time pursuant to this Section8.2, and thereafter, the Reimbursement Rate in effect on any Reset Date increases by * or more overthe then-effective Base Rate, then, for each such increase, the Lease Payment shall also beincreased in proportion to the percentage increase in the Reimbursement Rate; provided that in noevent shall the increased Lease Payment exceed the Lease Payment in effect on the First ProcedureDate.          8.3 New Technology. Except for Section 8.3(d) below, this Section 8.3 shall onlybecome applicable (i) on or after the date that is * after the First Procedure Date (the “* YearDate”), and (ii) if the average number of Procedures actually performed using the Equipment duringthe twelve (12) month period immediately preceding the * Year Date was not less than * Procedures(collectively, the “New Technology Preconditions”). If both of the New Technology Preconditionshave been satisfied, the following provisions shall apply:               (a) If at any time on or after the * Year Date, “New Technology” becomes commerciallyavailable to perform Procedures which Hospital desires to purchase or lease, Hospital shall,promptly provide written notice thereof to GKF (the “New Technology Notice”). As used herein, “NewTechnology” shall mean a treatment modality for providing Procedures which uses medical technologynot commercially available as of the First Procedure Date, but which subsequently becomescommercially available.               (b) If, within ninety (90) days following GKF’s receipt of the New Technology Notice, theparties are unable to agree in good faith on the lease payment or sale price or other materialterms for the New Technology, Hospital may lease or purchase the New Technology from any otherperson or entity; provided that, prior to entering into any lease or purchase agreement withanother person or entity for the New Technology, Hospital shall first provide written notice to GKFsetting forth the equipment to be used, the amount to be paid, the payment of and (if applicable)the term of such proposal transaction (the “Option Notice”). GKF shall have thirty (30) daysfollowing its receipt of the Option Notice (the “Option Period”) within which to agree or declineto lease or sell the New Technology to Hospital on the same terms as * Confidential material has been omitted in accordance with rule 24b-2.
 

 
stated in the Option Notice. If GKF agrees to lease or sell the New Technology to Hospital onthe same terms as stated in the Option Notice, GKF shall provide written notice of the same toHospital, and the parties shall promptly enter into a lease or sale of the New Technology on suchterms as stated in the Option Notice. If GKF declines to lease or sell the New Technology toHospital on the terms as stated on the Option Notice, GKF shall provide written notice of, same toHospital (or, if GKF fails to provide such written notice, GKF shall be deemed to have declined tolease or sell such New Technology) and Hospital shall have one hundred twenty days (120) daysfollowing its receipt of GKF’s notice of declination (the “Post-Option Period”) within which toenter into a lease or purchase of the New Technology in accordance with the terms of the OptionNotice. Hospital shall provide GKF with a certification of its officer promptly following the fullexecution of such lease or purchase agreement which certification shall set forth that Hospital hasentered into a lease or purchase agreement for the New Technology which lease or purchase agreementcontains the terms set forth in the Option Notice, as well as any and all additional terms notnoted in the Option Notice and contains no additional substantive terms not stated in the OptionNotice. If Hospital does not enter into a lease or purchase agreement for the New Technologycontaining the terms substantially similar to the terms set forth in the Option Notice within thePost-Option Period, or if any of the terms set forth in the Option Notice are supplemented,deleted, changed or otherwise modified in any way, the process of requiring a new Option Notice,Option Period and Post-Option Period shall be repeated in accordance with the terms set forth inthis Section 8.3(b)               (c) From and after the date on which the Hospital first uses the New Technology, Hospitalwill not be obligated to pay Lease Payments to GKF for Procedures that are performed on the NewTechnology. In consideration for the foregoing concession made by GKF, Hospital agrees toguarantee a minimum payment (the “Minimum New Technology Payment”) to GKF for each 365-day periodduring the Term of this Agreement commencing from and after the date on which the first procedureis performed on the New Technology, the New Technology order date (each such 365-day period isreferred to as a “New Technology Payment Period”). The Minimum New Technology Payment shall beequal to the Lease Payment then in effect multiplied by *. Thus, for each New Technology PaymentPeriod, GKF shall be entitled to the greater of: (a) the Lease Payment then in effect, multipliedby the number of Procedures that are performed using the Equipment and any other equipment ordevices (other than the New Technology) during such New Technology Payment Period, or (b) theMinimum New Technology Payment (the “New Technology Lease Payment”)**.**The foregoing shall applyirrespective of whether * Procedures are actually performed using the Equipment during the NewTechnology Payment Period, and/or whether the New Technology is acquired by Hospital throughpurchase or lease (from GKF or any other entity). To the extent applicable, within thirty (30)days following the close of each New Technology Payment Period, Hospital shall pay to GKF theshortfall between the Lease Payments made to GKF during such New Technology Payment Period and theMinimum New Technology Payment.               (d) Nothing set forth in this Section 8.3 shall be deemed or construed to prohibit thepurchase or lease by Hospital of any New Technology at any time prior to or after the Five YearDate or otherwise require the Hospital to comply with Section 8.3 (a) or (b). Subject to Section8.4(b) below, if Hospital purchases or leases any New Technology without first having satisfied allof the New Technology Preconditions, then, Hospital’s obligation set forth in Section 8.1 above topay Lease Payments for all Procedures, irrespective of whether the * Confidential material has been omitted in accordance with rule 24b-2.
 

 
Procedure is performed on the Equipment or using any other equipment or devices, including,without limitation, the New Technology, shall remain in full force and effect until the expirationor termination of this Agreement.     8.4 Obsolescence.               (a) If at any time on or after the * Year Date, should the Equipment at any time be deemed tobe obsolete (as determined in accordance with Section 8.4(d) below), the Hospital shall only berequired to pay GKF the greater of the following : (i) the then current Lease Payment (as may bemodified on each Reset Date as set forth in Section 8.2) for each Procedure performed on theEquipment, or (ii) an amount, on an annual basis, equal to * multiplied by the then effectiveLease Payment ( as may be modified on each Reset Date as set forth in Section 8.2). Payments owedunder clause (ii) of the immediately prior sentence shall be paid by the Hospital within thirty(30) days following each annual anniversary of the date on which the first Procedure is performedon new equipment after it was determined that the Equipment is obsolete.                    Notwithstanding the foregoing, in the event the Equipment is deemed to be obsolete hereunder,if GKF and the Hospital enter into an agreement whereby GKF provides Alternative Equipment to theHospital, then from and after the date on which the Hospital first uses the Alternative Equipmentprovided by GKF, the Hospital’s payment obligation shall be limited to the Hospital’s obligation topay GKF an equal amount to (i) the then effective Lease Payment (as may be modified on each ResetDate as set forth in Section 8.2) for those Procedures performed using the Equipment plus (ii) thepayments required to be made for the use of the Alternative Equipment in accordance with theagreement governing such Alternative Equipment between the Hospital and GKF.               (b) Notwithstanding the foregoing, if the Equipment becomes obsolete on or after the * YearDate, and Hospital has already purchased or leased (or subsequently purchases or leases) NewTechnology, the Obsolescence Lease Payment shall supersede Hospital’s obligation to pay LeasePayments for all Procedures (whether performed on the Equipment or on any other equipment ordevices, including, without limitation, the New Technology).               (c) If at any time on or after the * Year Date, the Equipment becomes obsolete as determinedabove, GKF shall have the option in its sole discretion to terminate this Agreement by giving awritten notice thereof to Hospital not less than ninety (90) days prior to the effective date ofthe termination designated in GKF’s written notice. In the event GKF elects to terminate theAgreement based on such obsolescence, GKF will be responsible at its sole cost and expense forremoving the Equipment and transporting it from the Hospital.               (d) A determination as to whether the Equipment is obsolete may be requested in writing byHospital at any time on or after the * Year Date and not more than once during any twelve-monthperiod commencing from the * Year Date. The Equipment shall be deemed to be obsolete if it isdetermined that another piece of equipment (but not a combination of different types of equipment)is more medically appropriate to use than the Equipment to perform Procedures to treat * or greaterof the following indications : *. If GKF does not agree * Confidential material has been omitted in accordance with rule 24b-2.
 

 
that the Equipment is obsolete, it shall, within ten (10) days following its receipt of suchrequest, notify the other party in writing of the same. Within (10) ten days thereafter, eachparty shall designate a practicing neurosurgeon or radiation oncologist who shall have not lessthan ten (10) years experience in the performance of radiosurgical procedures using variousradiosurgical devices, including the Gamma Knife. Within ten (10) days of such designation, eachsuch designee shall mutually agree upon and designate a third neurosurgeon or radiation oncologisthaving the same qualifications as described above and who shall have no relationship or medicalstaff privileges with either Hospital, GKF or any of GKF’s members. The three designatedphysicians shall have thirty (30) days within which to determine whether the Equipment is obsoletebased on the standard set forth above in this subsection (d). Any determination of obsolescencemust state in writing that the Equipment is obsolete reciting the standard set forth above in thissubsection (d), and must be signed by each designee. The determination of two of the threedesignated physicians shall be required to determine whether the Equipment is obsolete. Each partyshall pay their own costs or expenses incurred in connection with any determination under thisSection 8.4(d).     9. Use of the Equipment.          9.1 The Equipment shall be used by Hospital only at the Site and shall not be removedtherefrom. Hospital shall use the Equipment only in the regular and ordinary course of Hospital’sbusiness operations and only within the capacity of the Equipment as determined by Elekta’sspecifications. Hospital shall not use nor permit the Equipment to be used in any manner nor forany purpose which, in the reasonable opinion of Elekta or GKF, the Equipment is not designed orreasonably suitable.          9.2 This is an agreement of lease only. Nothing herein shall be construed as conveying toHospital any right, title or interest in or to the Equipment, except for the express leaseholdinterest granted to Hospital for the Term. All Equipment shall remain personal property (eventhough said Equipment may hereafter become attached or affixed to real property) and the titlethereto shall at all times remain exclusively in GKF.          9.3 During the Term, upon the request of GKF, Hospital shall promptly affix to the Equipmentin a prominent place, or as otherwise directed by GKF, labels, plates, insignia, lettering or othermarkings supplied by GKF indicating GKF’s ownership of the Equipment, and shall keep the sameaffixed for the entire Term. Hospital hereby authorizes GKF to cause this Lease or any statementor other instrument showing the interest of GKF in the Equipment to be filed or recorded, orrefiled or re-recorded, with all governmental agencies considered appropriate by GKF, at Hospital’scost and expense. Hospital also shall promptly execute and deliver, or cause to be executed anddelivered, to GKF any statement or instrument requested by GKF for the purpose of evidencing GKF’sinterest in the Equipment, including financing statements and waivers with respect to rights in theEquipment from any owners or mortgagees of any real estate where the Equipment may be located.          9.4 At Hospital’s cost and expense, Hospital shall (a) protect and defend GKF’s ownership ofand title to the Equipment from and against all persons claiming against or * Confidential material has been omitted in accordance with rule 24b-2.
 

 
through Hospital, (b) at all times keep the Equipment free from any and all liens,encumbrances, attachments, levies, executions, burdens, charges or legal processes imposed againstHospital, (c) give GKF immediate written notice of any matter described in clause (b), and (d) inthe manner 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 Hospital. In addition to the other covenants of Hospitalcontained in this Agreement, Hospital 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, Hospital shall maintain a minimum of one (1) Gamma Knife trained team comprised of one (1)neurosurgeon, one (1) radiation oncologist and one (1) physicist. Hospital will use its reasonableefforts to maintain two teams. In the event the Hospital experiences the loss of physician teams onstaff, Hospital will utilize Locum Tenens or temporary physicians (in the same specialty as thereplaced physicians) to be trained to operate the Equipment and cover in the interim period. Inthe Hospital shall be provided with six (6) Elekta Gamma Knife training slots for the training ofits two Gamma Knife teams. All travel and entertainment expenses related to training are theresponsibility of the Hospital. The Gamma Knife shall be available for use by all credentialedneurosurgeons and radiation oncologists. GKF will provide assistance with additional physicianstraining on the Equipment as mutually agreed upon by Hospital and GKF.          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.          10.3 Keep and maintain the Equipment and the Site fully protected, secure and free fromunauthorized access or use by any person.     11. Additional Covenants of GKF. In addition to the other covenants of GKF containedin this Agreement, GKF, at its cost and expense, shall:          11.1 Use its best efforts to require Elekta to meets its contractual obligations to GKF andHospital upon delivery of the Equipment and put the Equipment, as soon as reasonably possible, intogood, safe and serviceable condition and fit for its intended use in accordance with themanufacturer’s specifications, guidelines and field modification instructions.          11.2 Cause Hospital to enjoy the use of the Equipment, free of the rights of any other personsexcept for those rights reserved by GKF or granted to Elekta under the LGK Agreement.          11.3 Restrictive Convenant * Confidential material has been omitted in accordance with rule 24b-2.
 

 
               (a) During the initial three (3) year period following the First Procedure Date, none of GKFor American Shared Radiosurgery Services (“ASRS”) shall directly or indirectly, within WestchesterCounty lease, sell and/or otherwise own any interest in any Gamma Knife system, whether directly oras a shareholder, partner, equity holder, manager or otherwise               (b) GKF and ASRS acknowledge that: (i) the terms contained in this Section are necessary forthe commercially reasonable and proper protection of the Hospital’s interests including withoutlimitation, the Hospital’s substantial investment in the construction and improvement of the Siteto accommodate the installation of the Equipment; (ii) each and every covenant and restrictioncontained in this Section is reasonable in respect of such matter, length of time and geographicalarea; and (iii) the Hospital is relying on the representations of the parties contained in thisSection that they shall abide by and be bound by each of the aforesaid covenants and restrictions.               (c) If any court or tribunal of competent jurisdiction determines that the duration,geographical limit or any other aspect of the provisions of this Section is unenforceable inaccordance with its terms in a particular jurisdiction, the provisions of this Section shall notterminate, but shall be deemed amended to the extent required to render them valid and enforceablein such jurisdiction and such court or tribunal is hereby authorized and directed to amend thisAgreement only to the extent that such court or tribunal determines such an amendment is necessaryto make it valid and enforceable in said jurisdiction.               (d) Each of GKF and ASRS further agree that damages at law would be an insufficient remedy forthe Hospital in the event that any of them violate the provisions of this Section, and that theHospital shall be entitled to, among other remedies, make an application to a court of competentjurisdiction to obtain injunctive relief. Nothing contained herein shall be construed asprohibiting the Hospital from pursuing any other remedies available to the Hospital for a breach orthreatened breach of the provisions of this Section, including the recovery of damages from any ofGKF and/or ASRS.               (e) The unsuccessful party in judicial proceedings to enforce its rights under this Sectionshall reimburse the successful party for the reasonable legal fees, costs and disbursements whichit incurs as a result of such proceedings.               (f) The restrictive covenants contained in this Section shall automatically terminate and beof no further force and effect upon the termination of this Agreement for any reason.     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 a Service * Confidential material has been omitted in accordance with rule 24b-2.
 

 
Agreement with Elekta and any other service or other agreements required to fulfill GKF’sobligation to repair and maintain the Equipment under this Section 12. Hospital shall promptlynotify 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 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 Hospital’s regular business operations. GKF will complywith HIPPA patient privacy regulations.          12.3 Hospital 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 wrongful or negligent acts or omissions of Hospital’s officers, employees, agents,contractors and physicians. In the event the Equipment is damaged as a result of the misuse,improper use, or other wrongful or negligent acts or omissions of Hospital’s officers, employees,agents, contractors and physicians, to the extent such damage is not covered by the ServiceAgreement or any warranties or insurance, GKF may service or repair the Equipment as needed and thecost thereof shall be paid by Hospital to GKF promptly upon written request together with interestthereon at the rate of one (1.0%) per month (or the maximum monthly interest rate permitted to becharged by law between an unrelated, commercial borrower and lender, if less) and reasonableattorneys’ fees and costs incurred by GKF in collecting such amount from Hospital. Any work soperformed by GKF shall not deprive GKF of any of its rights, remedies or actions against Hospitalfor such damages.          12.4 If the Equipment is rendered unusable as a result of any physical damage to ordestruction of the Equipment, Hospital shall give GKF written notice thereof. GKF shall determine,within thirty (30) days after it is given written notice of such damage or destruction, whether theEquipment can be repaired. In the event GKF determines that the Equipment cannot be repaired (a)GKF, at its cost and expense, shall replace the Equipment as soon as reasonably possible takinginto account the availability of replacement equipment from Elekta, Elekta’s other then existingorders for equipment, and the then existing limitations on Elekta’s manufacturing capabilities, and(b) this Agreement shall continue in full force and effect as though such damage or destruction hadnot occurred. In the event GKF determines that the Equipment can be repaired, GKF shall cause theEquipment to be repaired as soon as reasonably possible thereafter. Hospital shall fully cooperatewith GKF to effect the replacement of the Equipment or the repair of the Equipment (including,without limitation, providing full access to the Site) following the damage or destruction thereof.In the event the Hospital is unable to use the equipment after providing written notice to GKF asset forth in this section, the Hospital shall * Confidential material has been omitted in accordance with rule 24b-2.
 

 
not be obligated to pay any Lease Payment to GKF for Procedures not provided on the Equipmentuntil GKF has remedied the problems set forth in the written notice.     13. Alterations and Upgrades to Equipment.          13.1 Hospital shall not make any modifications, alterations or additions to the Equipment(other than normal operating accessories or controls) without the prior written consent of GKF.Hospital shall not, and shall not permit any person other than representatives of Elekta or anyother person authorized by GKF to, effect any inspection, adjustment, preventative or remedialmaintenance, 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.          13.2 The necessity and financial responsibility for modifications, additions or upgrades to theEquipment, including the reloading of the Cobalt-60 source, shall be mutually agreed upon by GKFand Hospital. In the event GKF and Hospital agree to reload the Cobalt-60 source (i.e., inapproximately the seventh (7th) year of the Term), and GKF pays the costs associated therewith,notwithstanding any provisions to the contrary herein, the initial Term shall be automaticallyextended for a period of * years. It is the intent of the parties that GKF shall be responsiblefor Equipment related costs and expenses and that Hospital shall be responsible for Site relatedcosts and expenses for modifications, additions or upgrades to the Equipment, including thereloading of the Cobalt-60 source that are mutually agreed upon by GKF and Hospital. GKF shall beresponsible for upgrading the Gamma Knife to its most current version or at least to within onerelease of the current version. In the event Equipment is upgraded, Hospital and GKF will mutuallyagree to extend the term of contract and/or increase the fee per procedure rate to offset theadditional expense to GKF.     14. Financing of Equipment by GKF. GKF, in its sole discretion, may finance theEquipment. Financing may be in the form of an installment loan, a capitalized lease or othercommercially available debt or financing instrument. If GKF finances the Equipment through aninstallment loan, GKF shall be required to provide the Equipment as collateral for the loan. IfGKF finances the Equipment through a capitalized lease, title shall vest with the lessor until suchtime as GKF exercises its buy-out option under the lease, if any. If required by the lender,lessor or other financing entity (the “Lender”), GKF may assign its interest under this Agreementas security for the financing. Hospital’s interest under this Agreement shall be subject to theinterests of the Lender.     15. Equipment Operational Costs. Except as otherwise expressly provided in thisAgreement, Hospital shall be responsible and liable for all costs and expenses incurred, directlyor indirectly, in connection with the operation and use of the Equipment during the Term,including, without limitation, the costs and expenses required to provide trained physicians,professionals, and technical and support personnel, supplies and other items required to properlyoperate the Equipment and perform Gamma Knife procedures. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
     16. Taxes. GKF shall pay all sales or use taxes imposed or assessed in connectionwith the purchase of the Equipment and all personal property taxes imposed, levied or assessed onthe ownership and possession of the Equipment during the Term. All other taxes, assessments,licenses or other charges imposed, levied or assessed on the Equipment during the Term shall bepaid by Hospital before the same shall become delinquent, whether such taxes are assessed or wouldordinarily be assessed against GKF or Hospital; provided, however, Hospital shall not be requiredto pay any federal, state or local income, franchise, corporation or excise taxes imposed uponGKF’s net income realized from the lease of the Equipment. In case of a failure by Hospital to payany taxes, assessments, licenses or other charges when and as required under this Section, GKF maypay all or any part of such taxes, in which event the amount paid by GKF shall be promptly payableby Hospital to GKF upon written request together with interest thereon at the rate of at the rateof one percent (1.0%) per month (or the maximum monthly interest rate permitted to be charged bylaw between an unrelated, commercial borrower and lender, if less) and reasonable attorneys’ feesand costs incurred by GKF in collecting such amount from Hospital.     17. No Warranties by GKF. Hospital warrants that as of the First Procedure Date, itshall have (a) thoroughly inspected the Equipment, (b) determined that the Equipment is consistentwith the size, design, capacity and manufacture selected by it, and (c) satisfied itself that tothe best of its knowledge the Equipment is suitable for Hospital’s intended purposes and is goodworking order, condition and repair. GKF SUPPLIES THE EQUIPMENT UNDER THIS AGREEMENT IN ITS “ASIS” CONDITION. GKF, NOT BEING THE MANUFACTURER OF THE EQUIPMENT OR THE MANUFACTURER’S AGENT, MAKESNO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO THE EQUIPMENT’S MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE OR USE, DESIGN, CONDITION, DURABILITY, CAPACITY, MATERIAL ORWORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE. As between GKF and Hospital, Hospital shallbear all risks with respect to the foregoing warranties. GKF shall not be liable for any direct,indirect and consequential losses or damages suffered by Hospital or by any other person, andHospital expressly waives any right to hold GKF liable hereunder for, any claims, demands andliabilities arising out of or in connection with the design, manufacture, possession or operationof the Equipment, including injury to persons or property resulting from the failure of, defectiveor faulty design, operation, condition, suitability or use of the Equipment. All warranty or othersimilar claims with respect to the Equipment shall be made by Hospital solely and exclusivelyagainst persons other than GKF, including Elekta or any other manufacturers or suppliers. In thisregard and with prior written approval of GKF, Hospital may, in GKF’s name, but at Hospital’s solecost and expense, enforce all warranties, agreements or representations, if any, which may havebeen made by Elekta or manufacturers, suppliers or other third parties regarding the Equipment toGKF or Hospital. GKF shall not be responsible for the delivery, installation or operation of theEquipment or for any delay or inadequacy of any or all of the foregoing. GKF will enforce anywarranties provided to it by Elekta. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
     18. Termination for Economic Justification. If, following the initial twenty four(24) months after the First Procedure Date and following each subsequent 12 month period thereafterduring the Term, based upon the utilization of the Equipment within a reasonable period of timeafter GKF’s written request, Hospital does not provide GKF with a reasonable economic justificationto continue this Agreement and the provision of Gamma Knife services at the Hospital, then and inthat event, GKF shall have the option to terminate this Agreement by giving a written noticethereof to Hospital not less than ninety (90) days prior to the effective date of the terminationdesignated in GKF’s written notice. In the event GKF exercises this Economic Justification clauseor terminates the Agreement for any reason other than that the Hospital is in breach of theAgreement, GKF will be responsible at its sole cost and expense for removing the Equipment andtransporting it from the Hospital.     19. Options to Extend Agreement. As of the end of the Term, Hospital 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 Hospital: or shall automatically terminateunless extended by the Hospital in writing.          19.2 At the end of the Term, the Hospital shall have the option to extend the Term of theAgreement for a specified period of time and upon such other terms and conditions as may be agreedupon by GKF and the Hospital. Should the Hospital not exercise such option, this Agreement shallautomatically terminate. The Hospital shall exercise such option by giving an irrevocable writtennotice thereof to GKF at least nine (9) months prior to the expiration of the initial term. Anysuch notice shall be sufficient if it states in substance that Hospital elects to exercise itsoption and GKF and Hospital can agree upon the terms of the extension. If Hospital fails toexercise the option granted herein at least nine (9) months prior to the expiration of the initialTerm, the option shall lapse and this Agreement shall expire as of the end of the initial Term.Further, if Hospital exercises the option set forth in the first sentence of this Section 19 andthe parties are unable to mutually agree upon the length of the extension of the Term or any otherterms or conditions applicable to such extension prior to the expiration of the Term, thisAgreement shall expire as of the end of the initial Term. At the end of the term, this Agreementshall automatically terminate unless it is extended upon the written agreement of GKF and Hospital.     20. Events of Default by Hospital and Remedies.          20.1 The occurrence of any one of the following shall constitute an event of default underthis Agreement (an “Event of Default”):               20.1.1 Hospital fails to pay any rent payment when due pursuant to Paragraph 8 above and suchfailure continues for a period of thirty (30) days after written notice thereof is given by GKF orits assignee to Hospital; however, if Hospital cures the rent payment default within the applicablethirty (30) day period, such default shall not constitute an Event of Default. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
               20.1.2 Hospital attempts to remove, sell, transfer, encumber, assign, sublet or part withpossession of the Equipment or any items thereof, except as expressly permitted herein.               20.1.3 Hospital fails to observe or perform any of its material covenants, duties orobligations arising under this Agreement or the LGK Agreement and such failure continues for aperiod of thirty (30) days after written notice thereof by GKF to Hospital; however, if Hospitalcures the default within the applicable thirty (30) day period or if the default reasonablyrequires more than thirty (30) days to cure, Hospital commences to cure the default during theinitial thirty (30) day period and Hospital diligently completes the cure as soon as reasonablypossible following the end of the thirty (30) day period, such default shall not constitute anEvent of Default.               20.1.4 Hospital ceases doing business as a going concern, makes an assignment for the benefitof 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 Hospitalseeking 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 Hospital’s consent or acquiescence ofany 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 Hospital is suspended or terminated from participation in the Medicare program.          20.2 Upon the occurrence of an Event of Default with respect to Hospital, GKF may at itsoption do any or all of the following:               20.2.1 By written notice to Hospital, immediately terminate this Agreement as to theEquipment, wherever situated. As a result of the termination, GKF may enter upon the Site andremove the Equipment without liability of any kind or nature for so doing or GKF may demand thatHospital remove and return the Equipment to GKF, all at Hospital’s sole cost and expense.               20.2.2 Recover from Hospital as liquidated damages for the loss of the bargain represented bythis Agreement and not as a penalty an amount equal to the present value * Confidential material has been omitted in accordance with rule 24b-2.
 

 
of the unpaid estimated future rent payments to be made by Hospital to GKF through the end ofthe Term discounted at the annual rate of nine percent (9%), which liquidated damages shall becomeimmediately due and payable. Notwithstanding the foregoing, if the Event of Default occurs at anytime after the fifth (5th) anniversary of the First Procedure Date, then, the liquidated damagesshall be an amount equal to the present value of the unpaid estimated future rent payments to bemade by Hospital to GKF for a two (2) year period commencing from and after the date on which thesubject Event of Default occurred, or through the end of the Term, whichever time period is less,the sum of which payments shall be discounted at the annual rate of nine percent (9%) and shall beimmediately due and payable in full. The unpaid estimated future lease payments shall be based onthe prior twelve (12) months rent payments made by Hospital to GKF hereunder with an annual five(5%) percent increase thereof through the end of the Term or the two (2) year measuring period, asthe case may be. Hospital and GKF acknowledge that the liquidated damages formula set forth inthis Section 20.2.2 constitutes a reasonable method to calculate GKF’s damages resulting from anEvent of Default under the circumstances existing as of the date of this Agreement. The liquidateddamages remedy available under this Section 20.2.2 shall apply if and only to the extent an Eventof Default has occurred under Sections 20.1.1 and/or 20.1.2 above.               20.2.3 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).               20.2.4 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 the Equipment, to enforce the terms hereof or torecover damages for the breach hereof or to cancel this Agreement as to the Equipment.               20.2.5 In addition to the foregoing remedies, Hospital shall be liable to GKF for allreasonable attorneys fees, costs and expenses incurred by GKF as a result of the Event of Defaultor the exercise of GKF’s remedies.     20.3 Upon termination of this Agreement or the exercise of any other rights or remedies underthis Agreement or available under applicable law following an Event of Default, Hospital shall,without further request or demand, pay to GKF all accrued and unpaid rent payments and other sumsowing under this Agreement. In the event that Hospital shall pay the liquidated damages referredto in Section 20.2.2 above to GKF, GKF shall pay to Hospital promptly after receipt thereof allrentals or proceeds received from the reletting or sale of the Equipment during the balance of theinitial Term (after deduction of all costs and expenses, including reasonable attorneys fees andcosts, incurred by GKF as a result of the Event of Default), said amount never to exceed the amountof the liquidated damages paid by Hospital. However, Hospital acknowledges that GKF shall have noobligation to sell the Equipment. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
Hospital 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. The rights and remedies afforded GKF underthis Agreement shall be deemed cumulative and not exclusive, and shall be in addition to any otherrights or remedies to GKF 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. Hospital shall be named as an additional insured party on the all risk property andcasualty 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 Hospital upon request following the commencement of this Agreement and as of each annualrenewal of such policy during the Term.          21.2 During the Term, Hospital shall, at its cost and expense, purchase and maintain in effectgeneral liability and professional liability insurance policies covering the Site (together withall premises where the Site is located) and the use or operation of the Equipment by Hospital orits officers, directors, agents, employees, contractors or physicians. The general liability andprofessional liability insurance policies shall provide coverage in amounts not less than OneMillion Dollars ($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) annualaggregate. GKF shall be named as additional insured party on the general liability and professionalliability insurance policies to be maintained hereunder by Hospital. The policies to be maintainedby Hospital hereunder shall be evidenced by a certificate of insurance or other reasonabledocumentation which shall be delivered by Hospital to GKF no later than the First Procedure Dateand as of each annual renewal of such policies during the Term. Subject to compliance with therequirements set forth in this section, the general liability and professional insurance may beinsured through Hospital’s self-insurance program.          21.3 During the construction of the Site and prior to the First Procedure Date, Hospital, atits cost and expense, shall 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 Hospital hereunder shallbe evidenced by a certificate of insurance or other reasonable documentation which shall bedelivered by Hospital to GKF prior to the commencement of any construction at the Site.          21.4 During the Term, Hospital shall purchase and maintain all workers compensation insuranceto the maximum extent required by applicable law.     22. Indemnification. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
          22.1 Hospital shall indemnify, defend, protect and hold GKF and its members, managers,officers, employees, agents and contractors (collectively “GKF”) harmless from and against alllosses, claims, damages, liabilities, assessments, deficiencies, actions, proceedings, orders,judgments, liens, costs and other expenses (including reasonable attorney’s fees) of any nature orkind whatsoever asserted against or incurred by GKF (collectively “Damages”) which in any mannerarise out of or relate to (a) the failure by Hospital to fully perform, observe or satisfy itscovenants, duties or obligations contained in this Agreement or in the LGK Agreement; (b) the useand operation of the Equipment during the Term; (c) the design, construction and preparation of theSite by Hospital or the maintenance of the Site during the Term by Hospital; (d) Damages to theEquipment from the defective, faulty or improper design, construction or preparation of the Site orthe installation and positioning of the Equipment; (e) Damages to the Equipment (including anyDamages arising out of or related to violations by Hospital, its agents, officers, physicians,employees or contractors of the Service Agreement) caused by the negligent or wrongful acts oromissions of Hospital, its agents, officers, physicians, employees or contractors (in the event theEquipment is destroyed or rendered unusable, subject to Section 22.6 below, this indemnity shallextend up to (but not exceed) the full replacement value of the Equipment at the time of itsdestruction less salvage value, if any); and (f) the events or occurrences described in Article 7.3of the LGK Agreement to the same extent that Hospital agrees to indemnify Elekta thereunder. TheHospital shall not indemnify GKF for any costs, expenses, losses, etc. incurred by GKF arising outof the Hospital’s compliance with the Site Planning Criteria provided by GKF, instructions from GKFconcerning the use of the Equipment or any instructions from GKF concerning the repair andmaintenance of the Equipment.          22.2 Upon the occurrence of an event for which GKF is entitled to indemnification under thisAgreement, GKF shall give written notice thereof to Hospital setting forth the type and amount ofDamages. If the indemnity relates to a Third Party Claim (as defined in Section 22.3 below), thematter shall be subject to Section 22.3 below. If the indemnity relates to any Damages other thana Third Party Claim, not more than thirty (30) days after GKF’s written notice is given, Hospitaleither shall acknowledge in writing to GKF its obligation to indemnify hereunder and pay theDamages in full to GKF or dispute its obligation to indemnify in a written notice delivered to GKF.If Hospital disputes the obligation to indemnify, the parties shall meet and negotiate in goodfaith to mutually resolve the disagreement regarding indemnification.          22.3 GKF shall give written notice to Hospital as soon as reasonably possible after it hasknowledge of any third party claim or legal proceedings (“Third Party Claim”) for which GKF isentitled to indemnification under this Section 22. Hospital shall (a) immediately assume, at itssole cost and expense, the defense of the Third Party Claim with legal counsel approved by GKF(which approval will not be unreasonably withheld, delayed or conditioned), and (b) as soon asreasonably possible after GKF’s written notice is given to Hospital, acknowledge in writing to GKFits obligation to indemnify GKF in accordance with the terms of this Agreement. If Hospital failsto assume the defense of a Third Party Claim or fails to timely * Confidential material has been omitted in accordance with rule 24b-2.
 

 
acknowledge in writing its obligation to indemnify GKF, GKF may assume the defense of theThird Party Claim in the manner described in Section 22.4 below. GKF shall cooperate with Hospitalin the defense of any Third Party Claim. Any settlement or compromise of a Third Party Claim towhich GKF is a party shall be subject to the express written approval of GKF, which approval shallnot be unreasonably withheld, delayed or conditioned as long as an unconditional term of thesettlement or compromise is the full and absolute release of GKF from all Damages arising out ofthe Third Party Claim. GKF, at its own cost and expense, may participate on its own behalf withlegal counsel of its own selection in the defense of any Third Party Claim which may have amaterial impact on GKF.          22.4 If Hospital fails to promptly assume the defense of any Third Party Claim, GKF may assumethe defense of the Third Party Claim with legal counsel selected by GKF, all at Hospital’s cost andexpense. The defense of an action by GKF under this Section 22.4 shall not impair, limit orotherwise restrict Hospital’s indemnification obligations arising under this Section 22 or GKF’sright to enforce such obligations.          22.5 The indemnity obligations under this Section 22 shall survive the termination of thisLease with respect to events occurring during or relating to the Term.          22.6 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 Hospital. In the event any Damages may becovered by insurance policies, the parties shall exercise good faith and use their best efforts toobtain 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.          22.7 Hospital and GKF each hereby covenants and agrees that it will defend, indemnify and holdthe other party and their respective officers, directors, members, employees and agents at alltimes harmless from and against any loss, damage and expense (including reasonable attorneys’ feesand other costs of defense) caused by or arising out of: (i) anyliability or obligation related to the business of the indemnifying party prior to the date hereof and thecommencement of the Program; (ii) any obligation or liability arising from services provided underthis Agreement or in connection with the Program by the indemnifying party to the extent any suchliability or obligation directly results from the negligence or intentional misconduct of theindemnifying party; or (iii) any obligation or liability resulting from a breach of any provisionof this Agreement by the indemnifying party. The obligations of the parties under this Sectionsurvive the expiration or earlier termination of this Agreement.          22.8 Any party that intends to enforce an indemnity obligation under this Agreement shall givethe indemnifying party written notice of any claim promptly after such claim is made, but thefailure to give such notice shall not constitute a waiver or release of the * Confidential material has been omitted in accordance with rule 24b-2.
 

 
indemnifying party and shall not affect the rights of the indemnified party to recover underthis indemnity, except to the extent the indemnified party is materially prejudiced thereby. Inconnection with any claim giving rise to indemnity under this Section 22 resulting from or arisingout of any claim or legal proceeding by a person who is not a party to this Agreement, theindemnifying party, at its sole cost and expense, may, upon written notice to the indemnifiedparty, assume control of the defense of such claim or legal proceeding, to the extent that theindemnifying party admits in writing its indemnification liability to the indemnified party withrespect to all material elements thereof. If the indemnifying party assumes the defense of any suchclaim or legal proceeding, the obligations of the indemnifying party hereunder as to such claim orlegal proceeding shall be to take all steps necessary in the defense or settlement thereof and tohold the indemnified party harmless from and against any losses, damages, expenses or liabilitycaused by or arising out of any settlement approved by the indemnifying party and the indemnifiedparty or any judgment in connection with such claim or legal proceeding. Each indemnified partyshall cooperate with the indemnifying party in the defense of any such action, the defense of whichis assumed by the indemnifying party. Except with the consent of the indemnified party, whichconsent may be withheld at the indemnified party’s sole discretion, the indemnifying party shallnot consent to any settlement or the entry of any judgment arising from any such claim or legalproceeding which, in each case, does not include as an unconditional term thereof the delivery bythe claimant or the plaintiff to the indemnified party of a release from all liability in respectthereof. If the indemnifying party does not assume the defense of any claim or litigation, anyindemnified party may defend against such claim or litigation in such manner as it may deemappropriate, including but not limited to settling such claim or litigation, after giving notice ofthe same to the indemnifying party, on such terms as the indemnified party may deem appropriate.The indemnifying party will, promptly after any of the same is incurred, reimburse the indemnifiedparty in accordance with the provisions hereof for all damages, losses, liabilities, costs andexpenses incurred by the indemnified party.     23. Miscellaneous.          23.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns. Hospital 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. An assignment or sublease shallnot relieve Hospital of any liability for performance of this Agreement during the remainder of theTerm. Any purported assignment or sublease made without GKF’s prior written consent shall be null,void and of no force or effect.          23.2 Agreement to Perform Necessary Acts. Each party agrees to perform any furtheracts and execute and deliver any further documents which may be reasonably necessary or otherwisereasonably required 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 in * Confidential material has been omitted in accordance with rule 24b-2.
 

 
contexts 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.          23.4 Attorney’s Fees and Costs. In the event of any action, arbitration or otherproceedings between or among the parties hereto with respect to this Agreement, the non-prevailingparty or parties to such action, arbitration or proceedings shall pay to the prevailing party orparties all costs and expenses, including reasonable attorneys’ fees, incurred in the defense orprosecution thereof by the prevailing party or parties. The party which is a “prevailing party”shall be determined by the arbitrator(s) or judge(s) hearing the matter and shall be the party whois entitled 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 attachedhereto constitutes the full and complete agreement and understanding between the parties heretoconcerning the subject matter hereof and shall supersede any and all prior written and oralagreements with regard to such subject matter. This Agreement may be modified or amended only by awritten instrument executed by all of the parties hereto.          23.6 Number and Gender. Words in the singular shall include the plural, and words ina particular 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 areintended solely for convenience or reference and are not intended and shall not be deemed tomodify, explain or 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 theparties hereto. All counterparts shall be construed together and shall constitute one agreement.          23.9 Governing Law. This Agreement shall be interpreted and enforced in accordancewith the internal laws, and not the law of conflicts, of the State of New York applicable toagreements made and to be performed in that State. The venue shall be in New York Courts inWestchester County without regard to conflict of law rules.          23.10 Exhibits. All exhibits attached hereto and referred to in this Agreement arehereby incorporated by reference herein as though fully set forth at length. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
          23.11 Ambiguities. The general rule that ambiguities are to be construed against thedrafter shall not apply to this Agreement. In the event that any provision of this Agreement isfound to be ambiguous, each party shall have an opportunity to present evidence as to the actualintent of the parties with respect to such ambiguous provision.          23.12 Representations. Each of the parties hereto represents (a) that norepresentation or promise not expressly contained in this Agreement has been made by any otherparty hereto or by any of its agents, employees, representatives or attorneys; (b) that thisAgreement is not being entered into on the basis of, or in reliance on, any promise orrepresentation, expressed or implied, other than such as are set forth expressly in this Agreement;(c) that it has been represented by counsel of its own choice in this matter or has affirmativelyelected not to be represented by counsel; (d) it is duly organized, validly existing and in goodstanding under the laws of the jurisdiction of its organization, (e) it has full power andauthority to execute, deliver and perform this Agreement, and (f) the execution, delivery andperformance of this Agreement has been duly authorized by all necessary corporate or other similaraction.          23.13 Non-Waiver. No failure or delay by a party to insist upon the strictperformance of any term, condition, covenant or agreement of this Agreement, or to exercise anyright, power or remedy hereunder or under law or consequent upon a breach hereof or thereof shallconstitute a waiver of any such term, condition, covenant, agreement, right, power or remedy or ofany such breach or preclude such party from exercising any such right, power or remedy at any latertime or times.          23.14 Notices. All notices, requests, demands or other communications required orpermitted to be given under this Agreement shall be in writing and shall be delivered to the partyto whom notice is to be given either (a) by personal delivery (in which case such notice shall bedeemed to have been duly given on the date of delivery), (b) by next business day air courierservice (e.g., Federal Express or other similar service) (in which case such notice shall be deemedgiven on the business day following deposit with the air courier service), or (c) by United Statesmail, first class, postage prepaid, registered or certified, return receipt requested (in whichcase such notice shall be deemed given on the third (3rd) day following the date of mailing), andproperly addressed as follows:       To GKF: Craig K. Tagawa    Chief Executive Officer    GK Financing, LLC    Two Embarcadero Hospital, Suite 2370    San Francisco, CA 94111       To Hospital: Warren Geller    Administration    Northern Westchester Hospital Center    400 East Main Street    Mt. Kisco, NY 10549 * Confidential material has been omitted in accordance with rule 24b-2.
 

 
A party to this Agreement may change his, her or its address for purposes of this Section by givingwritten notice to the other parties in the manner specified herein.          23.15 Special Provisions Respecting Medicare and Medicaid Patients               23.15.1 Hospital and GKF shall generate such records and make such disclosures as may berequired, from time to time, by the Medicare, Medicaid and other third party payment programs withrespect to this Agreement in order to meet all requirements for participation and paymentassociated with such programs, including but not limited to the matters covered by Section1861(v)(1)(I) of the Social Security Act.               23.15.2 For the purpose of compliance with Section 1861(v)(1)(I) of the Social Security Act,as amended, and any regulations promulgated pursuant thereto, both parties agree to comply with thefollowing statutory requirements (a) Until the expiration of four (4) years after the terminationof this Agreement, both parties shall make available, upon written request to the Secretary ofHealth and Human Services or, upon request, to the Comptroller General of the United States, or anyof their duly authorized representatives, the contract, and books, documents and records of suchparty that are necessary to certify the nature and extent of such costs, and (b) if either partycarries out any of the duties of the contract through a subcontract with a value or cost of $10,000or more over a twelve month period, with a related organization, such subcontract shall contain aclause to the effect that until the expiration of four (4) years after the furnishing of suchservices pursuant to such subcontract, the related organization shall make available, upon writtenrequest to the Secretary, or upon request to the Comptroller General, or any of their dulyauthorized representatives the subcontract, and books, documents and records of such organizationthat are necessary to verify the nature and extent of such costs.          23.16 Force Majeure. Failure to perform by either party will be excused in the eventof any delay or inability to perform its duties under this Agreement directly or indirectly causedby conditions beyond its reasonable control, including, without limitation, fires, floods,earthquakes, snow, ice, disasters, acts of God, accidents, riots, wars, operation of law, strikes,governmental action or regulations, shortages of labor, fuel, power, materials, manufacturer delaysor transportation problems. Notwithstanding the foregoing, all parties shall make good faithefforts to perform under this Agreement in the event of any such circumstance. Further, once suchan event is resolved, the parties shall again perform their respective obligations under thisAgreement. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
     **IN WITNESS WHEREOF**, the parties hereto have caused this Agreement to be executed as of thedate first set forth above.     **“GKF”** **GK Financing, LLC**,  a California limited liability company       By: /s/ Craig K. Tagawa         Craig K. Tagawa,    Chief Executive Officer     **“Hospital”** **Northern Westchester Hospital Center,**       By: /s/ Joel Seligman         Joel Seligman    President & CEO * Confidential material has been omitted in accordance with rule 24b-2.
 

 
**Exhibit 8**As rent for the lease of the Equipment to Hospital pursuant to this Agreement, Hospital shallpay to GKF the sum of * for each Gamma Knife Procedure * and * for each Procedure * and * for eachProcedure * preformed by Hospital or its representatives or affiliates. The calculation for thenumber of Procedures will run in twelve (12) month cycles starting with the First Procedure Date.Each twelve-month period following the First Procedure Date will begin calculating Procedures fromzero (0).     **“GKF”** **GK Financing, LLC**,  a California limited liability company       By: /s/ Craig K. Tagawa         Craig K. Tagawa,    Chief Executive Officer     **“Hospital”** **Northern Westchester Hospital Center,**       By: /s/ Joel Seligman         Joel Seligman    President & CEO * Confidential material has been omitted in accordance with rule 24b-2.
 

 
**HIPAA BUSINESS ASSOCIATE ADDENDUM**     This Addendum, dated as of March 21, 2003 (“Addendum”), supplements and is made a part of theServices Agreement (as defined below) by and between Northern Westchester Hospital Center (“CoveredEntity”) and GK Financing, LLC (“Business Associate”).     **WHEREAS,**Covered Entity and Business Associate are parties to the Service Agreement pursuantto which Business Associate provides certain services to Covered Entity. In connection withBusiness Associate’s services, Business Associate creates or receives Protected Health Informationfrom or on behalf of Covered Entity, which information is subject to protection under the FederalHealth Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”) andrelated regulations promulgated by the Secretary (“HIPAA Regulations”).     **WHEREAS,**in light of the foregoing and the requirements of the HIPAA Regulations, BusinessAssociate and Covered Entity agree to be bound by the following terms and conditions:**1.** **Definitions****.**     1. General. Terms used, but not otherwise defined, in this Addendum shall have thesame meaning as those terms in the Privacy Rule.     2. Specific. a. Individual. “Individual” shall have the same meaning asthe term “individual” in 45 CFR 164.501 and shall include a person whoqualifies as a personal representative in accordance with 45 CFR 164.502(g).  b. Privacy Rule. “Privacy Rule” shall mean the Standardsfor Privacy of Individually Identifiable Health Information at 45 CFR part 160and part 164, subparts A and E.  c. Protected Health Information. “Protected HealthInformation” shall have the same meaning as the term “protected healthinformation” in 45 CFR 164.501, limited to the information created or receivedby Business Associate from or on behalf of Covered Entity.  d. Required By Law. “Required by Law”shall have the samemeaning as the term “required by law” in 45 CFR 164.501.  e. Secretary. “Secretary” shall mean the Secretary of theDepartment of Health and Human Services or his designee.  f. Services Agreement. “Services Agreement” shall meanany present or future agreements, either written or oral, between CoveredEntity and Business Associate under which Business Associate provides servicesto Covered Entity which involve the use or disclosure of Protected HealthInformation.**2.** **Obligations and Activities of Business Associate****.** * Confidential material has been omitted in accordance with rule 24b-2.
 

 
 a. Use and Disclosure. Business Associate agrees to not use or discloseProtected Health Information other than as permitted or required by the ServicesAgreement or as Required By Law.  b. Appropriate Safeguards. Business Associate agrees to use appropriatesafeguards to prevent use or disclosure of the Protected Health Information other thanas provided for by the Services Agreement. Without limiting the generality of theforegoing, Business Associate agrees to protect the integrity and confidentiality ofany Protected Health Information it electronically exchanges with Covered Entity.  c. Mitigation. Business Associate agrees to mitigate, to the extentpracticable, any harmful effect that is known to Business Associate of a use ordisclosure of Protected Health Information by Business Associate in violation of therequirements of this Addendum.  d. Reporting. Business Associate agrees to report to Covered Entity anyuse or disclosure of the Protected Health Information not provided for by the ServicesAgreement of which it becomes aware.  e. Agents. Business Associate agrees to ensure that any agent, including asubcontractor, to whom it provides Protected Health Information received from, orcreated or received by Business Associate on behalf of Covered Entity agrees to thesame restrictions and conditions that apply through this Addendum to Business Associatewith respect to such information.  f. Access to Designated Record Sets. To the extent that Business Associatepossesses or maintains Protected Health Information in a Designated Record Set,Business Associate agrees to provide access, at the request of Covered Entity, and inthe time and manner designated by the Covered Entity, to Protected Health Informationin a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to anIndividual in order to meet the requirements under 45 CFR 164.524.  g. Amendments to Designated Record Sets. To the extent that BusinessAssociate possesses or maintains Protected Health Information in a Designated RecordSet, Business Associate agrees to make any amendment(s) to Protected Health Informationin a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45CFR 164.526 at the request of Covered Entity or an Individual, and in the time andmanner designated by the Covered Entity.  h. Access to Books and Records. Business Associate agrees to make internalpractices, books, and records, including policies and procedures and Protected HealthInformation, relating to the use and disclosure of Protected Health Informationreceived from, or created or received by Business Associate on behalf of, CoveredEntity available to the Covered Entity, or to the Secretary, in a time and mannerdesignated by the Covered Entity or designated by the Secretary, for purposes of theSecretary determining Covered Entity’s compliance with the Privacy Rule.  i. Accountings. Business Associate agrees to document such disclosures ofProtected Health Information and information related to such disclosures as would berequired for Covered Entity to respond to a request by an Individual for an accountingof disclosures of Protected Health Information in accordance with 45 CFR 164.528. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
 j. Requests for Accountings. Business Associate agrees to provide toCovered Entity or an Individual, in the time and manner designated by the CoveredEntity, information collected in accordance with Section 2.i. of this Addendum, topermit Covered Entity to respond to a request by an Individual for an accounting ofdisclosures of Protected Health Information in accordance with 45 CFR 164.528.3. **Permitted Uses and Disclosures by Business Associate**. a. Services Agreement. Except as otherwise limited in this Addendum,Business Associate may use or disclose Protected Health Information to performfunctions, activities, or services for, or on behalf of, Covered Entity as specified inthe Services Agreement, provided that such use or disclosure would not violate thePrivacy Rule if done by Covered Entity or the minimum necessary policies and proceduresof the Covered Entity.  b. Use for Administration of Business Associate. Except as otherwiselimited in this Addendum, Business Associate may use Protected Health Information forthe proper management and administration of the Business Associate or to carry out thelegal responsibilities of the Business Associate.  c. Disclosure for Administration of Business Associate. Except asotherwise limited in this Addendum, Business Associate may disclose Protected HealthInformation for the proper management and administration of the Business Associate,provided that disclosures are Required by Law, or Business Associate obtains reasonableassurances from the person to whom the information is disclosed that it will remainconfidential and used or further disclosed only as Required by Law or for the purposefor which it was disclosed to the person, and the person notifies the BusinessAssociate of any instances of which it is aware in which the confidentiality of theinformation has been breached.**4.** **Permissible Requests by Covered Entity**. Except as set forth in Section 3 of thisAddendum, Covered Entity shall not request Business Associate to use or disclose ProtectedHealth Information in any manner that would not be permissible under the Privacy Rule if doneby Covered Entity.**5.** **Miscellaneous****.** a. Regulatory References. A reference in this Addendum to a section in thePrivacy Rule means the section as in effect or as amended.  b. Amendment. The Parties agree to take such action as is necessary toamend the Services Agreement from time to time as is necessary for Covered Entity tocomply with the requirements of the Privacy Rule and HIPAA.  c. Survival. The respective rights and obligations of Business Associateunder Section 5.c. of this Addendum shall survive the termination of the ServicesAgreement.  d. Interpretation. Any ambiguity in this Addendum shall be resolved topermit Covered Entity to comply with the Privacy Rule. * Confidential material has been omitted in accordance with rule 24b-2.
 

 
 e. Indemnity. Business Associate agrees to indemnify, defend and holdharmless Covered Entity and its employees, directors/trustees, members, representativesand agents (collectively, the “Indemnitees”) from and against any and all claims(whether in law or in equity), obligations, actions, causes of action, suits, debts,judgments, losses, fines, penalties, damages, expenses (including attorney’s fees),liabilities, lawsuits or costs incurred by the Indemnities which arise or result from abreach of the terms and conditions of this Agreement by Business Associate or itsemployees or agents.  f. Miscellaneous. The terms of this Addendum are hereby incorporated intothe Services Agreement. Except as otherwise set forth in Section 6.d. of thisAddendum, in the event of a conflict between the terms of this Addendum and the termsof the Services Agreement, the terms of this Addendum shall prevail. The terms of theAgreement which are not modified by this Addendum shall remain in full force and effectin accordance with the terms thereof. The Services Agreement together with thisAddendum constitutes the entire agreement between the parties with respect to thesubject matter contained herein.     **IN WITNESS WHEREOF**, the parties have executed this Addendum as of the date set forth above.         **NORTHERN WESTCHESTER**   **GK FINANCING, LLC**          **HOSPITAL CENTER**               By: /s/ Joel Seligman   By: /s/ Craig K. Tagawa         Name: Joel Seligman   Name: Craig K. TagawaTitle: President & CEO   Title: CEO * Confidential material has been omitted in accordance with rule 24b-2.