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Services Payments”) for each “Procedure” that is performed using theEquipment at the Site, whether on an inpatient or outpatient basis, andirrespective of the actual amounts billed or collected, if any, pertainingto such procedures. As used herein, a “Procedure” means any treatment thatinvolves stereotactic, external, single fraction, conformal radiation,commonly called radiosurgery, that may include one or more isocenters duringthe patient treatment session, delivered to any site(s) superior to theforamen magnum.”     4. New Section 9.5. The following is hereby added as a new Section 9.5 to theAgreement:“(a) At all times during the term of the Agreement subsequent to theeffective date of this First Amendment, Hospital represents and warrantsthat any and all Procedures performed or to be performed within the“Southern California Region” (as defined below) by Hospital, itsrepresentatives and/or affiliates (including, without limitation, USC/NorrisComprehensive Cancer Center), whether on an inpatient or outpatient basis,shall be performed using the Equipment at the Site, except that theforegoing representation and warranty shall not apply (i) to the performanceof any Procedures using the existing Cyberknife equipment, as presentlyconfigured, upgraded or replaced (the “Cyberknife”), so long as theProcedures using such Cyberknife are performed at the USC/NorrisComprehensive Cancer Center; (ii) to the performance of any Proceduresoutside the Southern California Region; (iii) to the activities ofHospital-affiliated physicians at facilities not owned or operated byHospital or its affiliates; or (iv) if the Equipment ceases to represent theprevailing standard of care for Procedures, as determined in accordance withSection 9.5(c) below (the “Equipment Use Representation”). As used herein,the “Southern California Region” shall mean the California counties ofImperial, Los Angeles, Orange, Riverside, San Bernardino, Santa Barbara andVentura.“(b) Notwithstanding anything to the contrary contained in this Agreement,in the event of a breach of the Equipment Use Representation at any time orfrom time-to-time, for any reason or for no reason, then, within thirty (30)days following the occurrence thereof, Hospital shall pay to GKF asliquidated damages for the loss of the benefit from the Equipment UseRepresentation and not as a penalty, an amount equal to * that is performedusing any other equipment or devices (other than the Equipment), including,without limitation, any other Leksell Gamma Knife unit(s) of any model typeor configuration (provided that no such liquidated damages shall bepayable for any Procedures performed using the Cyberknife). Such liquidateddamages (i) shall be payable for all Procedures performed anywhere withinthe Southern California Region using such other equipment or devices byHospital or its representatives or affiliates, whether on an inpatient oroutpatient basis, and irrespective of
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the actual amounts billed or collected, if any, pertaining to suchProcedures; (ii) shall be in addition to any Purchased Services Paymentsthat are payable to GKF for Procedures performed using the Equipment as setforth herein; and (iii) shall be the sole and exclusive remedy for anybreach of the Exclusive Use Representation and shall not apply to any otherbreach of this Agreement. Hospital and GKF acknowledge that the liquidateddamages formula set forth in this Section constitutes a reasonable method tocalculate GKF’s damages resulting from a breach of the Equipment UseRepresentation under the circumstances existing as of the date of this FirstAmendment.“(c) A determination as to whether the Equipment ceases to represent theprevailing standard of care for Procedures may be requested in writing byeither party at any time on or after the fifth (5th) anniversaryof the First Procedure Date and not more than once during any twelve monthperiod commencing from the fifth (5th) anniversary of the FirstProcedure Date. The Equipment shall be deemed not to represent theprevailing standard of care for the performance of Procedures if it isdetermined in accordance with the procedures set forth in this Section9.5(c) that it is not medically appropriate to use the Equipment to performany and all Procedures (other than due to a temporary unavailability of theEquipment to perform Procedures, e.g., for servicing or Cobaltreloading of the Equipment, if any). The prevailing standard of care forthe performance of Procedures shall not mean the best or a better standardof care, but rather is an accepted standard of care within the radiosurgerycommunity. Within ten (10) days following a party’s receipt of a requestfrom the other party, each party shall designate a practicing neurosurgeonwho shall have not less than ten (10) years experience in the performance ofradiosurgical procedures using various radiosurgical devices, including theGamma Knife. Within ten (10) days of such designation, each such designeeshall mutually agree upon and designate a third neurosurgeon having the samequalifications as described above and who shall have no relationship ormedical staff privileges with either Hospital or GKF. The three (3)designated physicians shall have thirty (30) days within which to determinewhether the Equipment does not represent the prevailing standard of care forProcedures based on the standard set forth in this Section 9.5(c). Anydetermination that the Equipment does not represent the prevailing standardof care for Procedures based on the standard set forth in this Section9.5(c) must be in writing and signed by not less than two (2) of the three(3) physician designees. If the requisite number of physician designeesfails to make such determination as provided above, then, the Equipmentshall be deemed to continue to represent the prevailing standard of care forProcedures based on the standard set forth in this Section 9.5(c), and theparty requesting the determination shall be required to promptly reimbursethe other party for any reasonable costs or expenses incurred by the otherparty in connection with such determination. If the requisite number ofphysician designees makes the
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determination that the Equipment does not represent the prevailing standardof care for Procedures as provided above, then, (i) from and after the dateof such determination, Hospital, its representatives and affiliates, mayperform Procedures without using the Equipment without being in breach ofthe Equipment Use Representation; and (ii) the party not requesting thedetermination shall be required to promptly reimburse the other party forany reasonable costs or expenses incurred by the other party in connectionwith such determination.”     5. Amendment to Exhibit 8. Based in part on GKF’s lowered marketing expensecommitment pursuant to this First Amendment, Exhibit 8 to the Agreement is hereby deleted in itsentirety and replaced with Exhibit 8 attached to this First Amendment.     6. Other. In connection with the assignment of the Agreement from USC UniversityHospital to USC, if required by the third party financing company which holds a security interestin the Equipment, Hospital shall promptly execute and deliver a consent to sublease for the purposeof evidencing the Lender’s interest in the Equipment and/or this Agreement.     7. Full Force and Effect. Except as amended by this First Amendment, all of the termsand provisions of the Agreement shall remain in full force and effect. Notwithstanding theforegoing, to the extent of any conflict or inconsistency between the terms and provisions of thisFirst Amendment and that of the Agreement, the terms and provisions of this First Amendment shallprevail and control.     IN WITNESS WHEREOF, the parties have executed this First Amendment effective as of the datefirst written above.           **GKF:** **Hospital:**               GK FINANCING, LLC UNIVERSITY OF SOUTHERN CALIFORNIA           By: /s/ Craig K. Tagawa By: /s/ Clare H Shinnerl                 Craig K. Tagawa