**Exhibit 10.49****EQUIPMENT LEASE AGREEMENT**     **THIS EQUIPMENT LEASE AGREEMENT**(“Agreement”) is made and entered into on May 28, 2004, by andbetween **GK FINANCING, LLC,**a California limited liability company (“GKF”), and Mercy Health Center,an Oklahoma not for profit corporation (“Hospital”), with reference to the following 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., as specified in Exhibit A of the LGKAgreement (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 latest approvedGamma Knife technology available as of the date of this Agreement (i.e., model C with AutomaticPositioning System), including all standard 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 A. 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 the
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Site. Hospital’s obligation to make the payments to GKF for the Equipment described inSection 8 below shall commence as of 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. GKF shall reimburse Hospital for its direct costs toobtain a User License and any other licenses, permits, approvals, consents and authorizationsrequired by this Section 4 upon presentation of invoices. In the event Hospital’s application toobtain a User License and any other licenses, permits, approvals, consents and authorizationsrequired to operate the Equipment is denied after Hospital has used its best efforts, thisAgreement shall automatically terminate and all parties shall be released from the furtherperformance of any obligations or duties arising under this Agreement. Costs under this Section 4shall be defined as “Startup Costs”.     5. Delivery of Equipment; Site.          5.1 GKF shall coordinate with Elekta and Hospital to have the Equipment delivered to Hospitalat (the “Site”) on or prior to the delivery date agreed upon by Hospital and Elekta in the LGKAgreement. GKF makes no representations or warranties concerning delivery of the Equipment to theSite or the actual date thereof.          5.2 Subject to Section 6 below, Hospital at its cost and expense, shall provide a safe,convenient Site for the Equipment. The location of the Site shall be subject to the prior approvalof GKF.     6. Site Preparation and Installation of Equipment.          6.1 GKF, at its cost and expense, shall prepare all plans and specifications required toprepare, construct and improve the Site for the installation, use and operation of the Equipmentduring the Term. The plans and specifications (i) shall be approved by Hospital, which approvalshall not be unreasonably withheld or delayed; (ii) shall comply in all respects with the SitePlanning Criteria attached as Exhibit E to the LGK Agreement (collectively the “Site PlanningCriteria”); and (iii) to the extent required by applicable law, shall be submitted to all state andfederal agencies for their review and approval. GKF, at its cost and expense, shall obtain allpermits, certifications, approvals or authorizations required by applicable federal, state
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or local laws, rules or regulations necessary to prepare, construct and improve the Site asprovided above.          6.2 GKF, at its cost and expense, shall prepare, construct and improve the Site as necessaryfor the installation, use and operation of the Equipment during the Term, including, withoutlimitation, providing all temporary or permanent shielding required for the charging of theEquipment with the Cobalt supply and for its subsequent use, selecting and constructing a properfoundation for the Equipment and the temporary or permanent shielding, aligning the Site for theEquipment, and installing all electrical systems and other wiring required for the Equipment. Inconnection with the construction of the Site, GKF, at its cost and expense, shall select, purchaseand install all radiation monitoring equipment, devices, safety circuits and radiation warningsigns required at the Site in connection with the use and operation of the Equipment. GKF shall beresponsible for the shipment, storage, placement and removal of all Cobalt and depleted Cobalt inaccordance with all State and Federal regulations. Any depleted Cobalt supply shall be properlydisposed of by GKF at such time as GKF shall deem necessary, in GKF’s sole and absolute judgment.          6.3 In addition to construction and improvement of the Site, GKF, at its cost and expense,shall be responsible for the installation of the Equipment at the Site, including the positioningof the Equipment on its foundation at the Site in compliance with the Site Planning Criteria.          6.4 During the Term, GKF, at its cost and expense, shall maintain the Site in a good workingorder, condition and repair, reasonable wear and tear excepted.     7. Marketing Support. Not less than ninety (90) days prior to the First ProcedureDate and the commencement of each succeeding twelve (12) month period during the Term, GKF andHospital shall jointly develop an annual marketing plan, budget and timeline, which shall beimplemented by Hospital with the support of GKF, based on the approved budget and timeline.Hospital’s approval of such plan, budget and timeline shall not be unreasonably withheld ordelayed. If Hospital has not approved or disapproved the same within thirty (30) days followingits receipt, Hospital shall be deemed to have approved the same. GKF shall be * responsible forany out-of-pocket marketing expenses paid to unrelated third parties that are included in themarketing plan budget. Any marketing efforts conducted independently by Hospital shall be atHospital’s expense, and subject to coordination with GKF. Hospital’s approval of such plan, budgetand timeline shall not unreasonably withheld or delayed.     8. Lease Payments.          8.1 In consideration for and as compensation to GKF for (i) the lease of the Equipment by GKFto Hospital pursuant to this Agreement; (ii) payment of Startup Costs; (iii) the preparation by GKFof all plans and specifications required to prepare, construct and improve the Site for theinstallation, use and operation of the Equipment; (iv) the preparation, construction andimprovement of the Site as necessary for the installation, use and operation of
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the Equipment; (v) the installation by GKF of the Equipment at the Site; (vi) the marketing ofthe services to be provided using the Equipment; (vii) the cost of the individual referenced inSection 11.3 below; and (viii) the maintenance by GKF of the Site in a good working order,condition and repair, on a monthly basis, Hospital shall pay the “Lease Payment” to GKF for each“Procedure” that is performed on any and all patients admitted to Hospital, on an inpatient oroutpatient basis, irrespective of whether (a) the Procedure is performed on the Equipment or usingany other equipment or devices; or (b) the Procedure is performed by Hospital, its representativesor affiliates or by any other person or entity.          (1) The “Lease Payment” shall be equal to (a) * of the “Technical ComponentCollections” relating to each Procedure, less (b) Hospital’s aggregate “Additional CostComponent,” if any, relating to those Procedures performed using the Equipment during thecorresponding month.          (2) “Technical Component Collections” means (a) the total amount actually collected byHospital or its representatives or affiliates during each month from any and all payorsources, including, without limitation, patients, insurance companies, state or federalgovernment programs or any other third party payors, as reimbursement for the technicalcomponent of each Procedure performed on the Equipment or using any other equipment ordevices, plus (b) any and all other amounts actually collected by Hospital or itsrepresentatives or affiliates during such month from any and all payor sources, including,without limitation, patients, insurance companies, state or federal government programs orany other third party payors, which amounts are related to “Extended Inpatient Days” (asdefined below) following a Procedure that is performed using the Equipment or using anyother equipment or devices, including, without limitation, any outlier payments. Thetechnical fees to be billed for Procedures performed utilizing the Equipment during the Termof this Agreement shall be an amount which is economically justifiable based upon GKF’sdirect operating expenses and its total project costs, together with a return thereon.Hospital shall consult and mutually agree with GKF from time to time regarding the amount ofthe technical fees to be billed by Hospital for Procedures that are performed utilizing theEquipment and any revisions thereto. Subject to compliance with the standard described inthe preceding sentence, Hospital and GKF shall mutually agree on the setting or revision ofthe amount of the technical fees on no less than an annual basis, and the acceptance of thetechnical fee component amounts with third party payors prior to their implementation.          (3) An Additional Cost Component shall apply and be calculated if (a) unexpectedcomplications arise (e.g., stroke, heart attack) during the performance of aProcedure using the Equipment such that the patient remains hospitalized for ExtendedInpatient Days; and (b) the Extended Inpatient Days and the Procedure are included **as**partof the same reimbursement claim. Where applicable, the “Additional Cost Component” relatingto a Procedure utilizing the Equipment shall be equal to (i) the number of **covered (by thirdparty payor)**Extended Inpatient Days for that Procedure, multiplied by (ii) the“Additional Cost Per Diem.” Notwithstanding anything to the contrary contained herein,there shall be no deduction from the Lease Payment for any
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Additional Cost Component incurred where the Procedure is performed using any equipmentor devices other than the Equipment.          (4) The “Additional Cost Per Diem” shall be equal to the quotient of (i) fifty percent(50%) of the Technical Component Collections from the subject Procedure performed on theEquipment that results in Extended Inpatient Days, divided by (ii) the then-current MedicareGeometric Mean Length of Stay for the Diagnostic Related Group (DRG) under which suchdischarge was billed (or could have been billed to Medicare), as such Geometric Mean Lengthof Stay is set forth in the Federal Register.          (5) “Procedure” shall mean any treatment, whether performed on an inpatient oroutpatient basis, that involves stereotactic, external, single fraction, conformalradiation, commonly called Radiosurgery, that may include one or more isocenters during thepatient treatment session, delivered to any site(s) superior to the foramen magnum.          (6) “Extended Inpatient Days” shall mean the number of days after the date of Procedureduring which the patient was properly classified as an inpatient, where all servicesperformed during such period are included as part of the same reimbursement claim. The dateof discharge shall not be included in the number of Extended Inpatient Days.No Lease Payment for any Procedure shall be payable by Hospital to GKF unless and until theTechnical Component Collections corresponding to such Procedure have been actually collected by theHospital and/or its representatives or affiliates. On a monthly basis and by the 25th of thefollowing month, Hospital shall remit GKF’s aggregate Lease Payment for the preceding month**.**It is acknowledged that the portion comprised of * of the Technical Component Collections relatingto each Procedure that is not paid as part of the Lease Payment is a good faith estimate of thecosts and expenses that will be incurred by Hospital during the corresponding month for servicesand personnel associated with the performance of Procedures, including, without limitation, costsand expenses for registered nurses, radiation technicians, recovery room, Hospital daily charges,ventilator daily charges, MRI procedures, CT procedures, angiography procedures, the physicist,laboratory services, pharmacy items, billing and collection services, other direct operating costs,and physical space. Such costs and expenses shall not include (i) Lease Payments, (ii) physicianand other professional fees, and/or (iii) direct or indirect administrative overhead expenses.Such percentage shall not be increased, reduced or otherwise modified regardless of whetherHospital’s actual costs and expenses are higher or lower than the amount estimated.Notwithstanding the foregoing, on each anniversary date of this Agreement, the parties shall meetto review the percentage of the Technical Component Collections that are payable as part of theLease Payment, and any adjustments thereto must be mutually agreed upon by the parties in writing.Upon request by GKF, Hospital shall promptly furnish GKF with written documentation substantiatingHospital’s costs.
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     8.2 Within thirty (30) days following the end of each month (or portion thereof) during theterm of this Agreement, Hospital shall pay the Lease Payments to GKF and shall concurrently informGKF in writing as to the number of Procedures performed during that month utilizing the Equipmentand any other equipment or devices. To facilitate Hospital’s billing and collection for Proceduresperformed, within three (3) business days after any Procedure using the Equipment is performed, theadministrative support individual referenced in Section 11.3 below shall provide Hospital withwritten confirmation of the names of the patients treated. Hospital shall submit claims forreimbursement to the appropriate payors for each Procedure within thirty (30) days after thepatient receiving the treatment is discharged. Such claims shall be submitted under Hospital’sprovider numbers and license, Hospital shall also diligently follow up any unpaid or denied claimsand re-bill and/or contest the same where appropriate so as to maximize Technical ComponentCollections. All or any portion of any Lease Payment which is not paid in full within sixty (60)days after its due date shall bear interest at the annual rate of five percent (5%) in excess ofthe Federal Reserve Discount Rate then in effect as published in the Wall Street Journal or similarpublication (or the maximum monthly interest rate permitted to be charged by law between anunrelated, commercial borrower and lender, if less) until the unpaid Lease Payment, together withall accrued interest thereon is paid in full. If GKF shall at any time accept a Lease Payment fromHospital after it shall become due, such acceptance shall not constitute or be construed as awaiver of any or all of GKF’s rights under this Agreement, including the rights of GKF set forth inSection 20 hereof.          8.3 Within thirty (30) days after the close of each month, Hospital shall provide GKF with awritten report indicating the status of billings and collections for each Procedure performedduring that month, including, without limitation, the amount of the claim submitted, the amountreceived or denied for each such procedure, and copies of the corresponding Explanation of Benefits(“EOB”). Upon request by GKF, Hospital shall furnish to GKF information regarding reimbursementrates from any or all payor sources for Procedures (applicable to Procedures performed either on aninpatient or outpatient basis). If such reimbursement rates should change at any time or from timeto time after the date hereof, in each instance, Hospital shall provide written notice thereof toGKF within five (5) days of Hospital receiving notice thereof. Prior to entering into or renewingany third party payor contracts for the provision of Procedures utilizing the Equipment, Hospitalshall consult with GKF regarding the terms and provisions thereof, including the technicalcomponent reimbursement rates. GKF shall maintain the confidentiality of all information providedto GKF by Hospital with regard to Procedure charges, billing and reimbursement rates.          8.4 The parties acknowledge that the Lease Payments payable to GKF and Hospital’s CostComponent reflect their respective fair market value and are not determined in a manner that takesinto account the volume or the value of any referral or other business generated between theparties.          8.5 Within ten (10) days after Hospital’s receipt of written request from GKF, GKF shall havethe right to audit Hopsital’s books and records (including, without limitation, the
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books and records pertaining to any other Radiosurgery equipment and devices) during normalbusiness hours to verify the Technical Component Collections and Hopsital’s Cost Component, andHospital shall provide GKF with access to such books and records.          8.6 New Technology. Notwithstanding anything to the contrary set forth in Section 8of this Agreement, if, at any time during the term of this Agreement, Hospital purchases or leases“New Technology,” then, from and after the “New Technology Effective Date,” no Lease Payment shallbe payable by Hospital to GKF for any Procedures performed using the New Technology;provided that Hospital shall continue to be responsible for making Lease Payments to GKFfor all other Procedures performed on the Equipment or using any other equipment or devices as setforth in this Section 8. Hospital shall provide GKF with not less than one hundred and eighty(180) days prior written notice of Hospital’s intention to purchase or lease New Technology, whichwritten notice shall include any and all documentation evidencing compliance with the definition ofNew Technology, and which documentation shall be subject to the prior written approval of GKF inits sole but reasonable judgment. As used herein:               (a) “New Technology” shall mean a treatment modality for performing Procedures which (a) usesmedical technology not commercially available as of the date of this Agreement; (b) consists of asingle device and not a combination of different types of equipment; and (c) has been documented inat least (3) articles published in peer-reviewed journals in the United States, using five-yearminimum follow-up studies, to be more medically appropriate than the Equipment to performProcedures in treating 65% or greater of the currently treatable Gamma Knife indications.               (b) “New Technology Effective Date” shall mean the later to occur of (a) the date that isseven (7) years after the First Procedure Date, or (b) the date on which the first clinicalProcedure is performed using the New Technology on a patient admitted to Hospital on an inpatientor outpatient basis.     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 opinion of Elekta or GKF, the Equipment is not designed or reasonablysuitable.          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.
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          9.3 During the Term, upon the request of GKF, Hospital shall promptly affix to theEquipment in a prominent place, or as otherwise directed by GKF, labels, plates, insignia,lettering or other markings supplied by GKF indicating GKF’s ownership of the Equipment, and shallkeep the same affixed for the entire Term. Hospital hereby authorizes GKF to cause this Lease orany statement or other instrument showing the interest of GKF in the Equipment to be filed orrecorded, or refiled or re-recorded, with all governmental agencies considered appropriate by GKF,at GKF’s cost and expense. Hospital also shall promptly execute and deliver, or cause to beexecuted and delivered, to GKF any statement or instrument requested by GKF for the purpose ofevidencing GKF’s interest in the Equipment, including financing statements and waivers withrespect to rights in the Equipment from any owners or mortgagees of any real estate where theEquipment 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 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 against Hospital, and (c) give GKFimmediate written notice of any matter described in clause (b).     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 on staff a minimum of two (2) Gamma Knife trained teams comprisedof neurosurgeons, radiation oncologists and physicists. Hospital shall be provided with six (6)one week Elekta Gamma Knife training sessions for the training of its two (2) Gamma Knife teams.GKF shall also be responsible for the reasonable travel related expenses for the physicians and/orphysicists associated with the six (6) Gamma Knife training sessions.          10.2 Direct, supervise and administer the diagnosis, treatment and care of all patients whoreceive Gamma Knife procedures.          10.3 In consultation with GKF, provide reasonable and customary marketing support in terms ofadministrative and physician support for the Gamma Knife service to be operated by the Hospital.          10.4 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:
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          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 Ensure Hospital’s quite enjoyment and use of the Equipment, free of the rights of anyother persons except for those rights reserved by GKF or granted to Elekta under the LGK Agreementor the Purchase Agreement.          11.3 GKF and Hospital shall mutually select an individual to be located at the Site to provideGamma Knife administrative and marketing support services. The individual’s duties shall includebut not be limited to scheduling Gamma Knife patients and coordinating professional and technicalpersonnel and support services to perform said Gamma Knife treatment. This individual shall alsoverify patient insurance. The individual shall also assist with marketing activities on an asneeded basis. This individual is provided by the Hospital and GKF shall reimburse Hospital for thecost of the individual and payment made by GKF to Hospital by the end of the following month. GKFand Hospital shall mutually agree on individual.     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, (b) subject to Hospital’s compliance with its obligations under the LGKAgreement and under Sections 4, 5, 9, 10, 12, 13, and 16 hereunder, cause the equipment to be incompliance with all applicable state and federal regulations, and (c) maintain in full force andeffect a Service Agreement with Elekta and any other service or other agreements required tofulfill GKF’s obligation to repair and maintain the Equipment under this Section 12. Hospitalshall promptly notify GKF in the event of any damage or destruction to the Equipment or of anyrequired maintenance or repairs to the Equipment, regardless of whether such repairs or maintenanceare covered 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.          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 other intentional and wrongful or negligent acts or
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omissions of Hospital’s officers, employees, agents, contractors and physicians. In the eventthe Equipment is damaged as a result of the misuse, improper use, or other intentional and wrongfulor negligent acts or omissions of Hospital’s officers, employees, agents, contractors (other thanGKF and Elekta) and physicians, to the extent such damage is not covered by the Service Agreementor any warranties or insurance, GKF may service or repair the Equipment as needed and the costthereof shall be paid by Hospital to GKF immediately upon written request together with interestthereon at the rate of one and one-half percent (1.50%) per month (or the maximum monthly interestrate permitted to be charged by law between an unrelated, commercial borrower and lender, if less)and reasonable attorneys’ fees and costs incurred by GKF in collecting such amount from Hospital.Any work so performed by GKF shall not deprive GKF of any of its rights, remedies or actionsagainst Hospital for 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. Subject to Section 12.3 above, in the event GKF determines that theEquipment cannot be repaired, at the election of GKF in GKF’s sole and absolute discretion, (a)GKF, at its cost and expense, may replace the Equipment as soon as reasonably possible taking intoaccount the availability of replacement equipment from Elekta, Elekta’s other then existing ordersfor equipment, and the then existing limitations on Elekta’s manufacturing capabilities, and (b) insuch event, this Agreement shall continue in full force and effect as though such damage ordestruction had not occurred. If GKF elects not to replace the Equipment, GKF shall providewritten notice of such election to Hospital, and this Agreement shall terminate on the date that isninety (90) days following the date of such notice. In the event GKF determines that the Equipmentcan be repaired, GKF shall cause the Equipment to be repaired as soon as reasonably possiblethereafter. Hospital shall fully cooperate with GKF to effect the replacement of the Equipment orthe repair of the Equipment (including, without limitation, providing full access to the Site)following the damage or destruction thereof.     13. Alterations and Upgrades to Equipment. 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 personother than representatives of Elekta or any other person authorized by GKF to, effect anyinspection, adjustment, preventative or remedial maintenance, or repair to the Equipment withoutthe prior written consent of GKF. All modifications, alterations, additions, accessories oroperating controls incorporated in or affixed to the Equipment (herein collectively called“additions” and included in the definition of “Equipment”) shall become the property of the GKFupon termination of this Agreement. The parties agree that the necessity for the reloading of thecobalt-60 source, shall be discussed and mutually decided by GKF and Hospital. If GKF reloads theEquipment at its cost, the initial Term of the Agreement shall be extended for * years from aduration of 10 to * years.
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     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 and Hospital shall execute such documentation as the Lender shallreasonably require in furtherance of this Section 14.     15. Equipment Operational Costs. GKF shall be responsible for all costs and expensesfor the operation and use of the Equipment. Significant costs and expenses are enumerated inExhibit 8.1. Between Hospital and GKF, Hospital shall be fully liable for all negligent,intentional or wrongful acts or omissions of Hospital, its officers, directors, employees andagents.     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 immediatelypayable by Hospital to GKF upon written request together with interest thereon at the rate of atthe rate of one and one-half percent (1.50%) per month (or the maximum monthly interest ratepermitted to be charged by law between an unrelated, commercial borrower and lender, if less) andreasonable attorneys’ fees and 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 OR
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WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE. As between GKF and Hospital, Hospitalshall bear all risks with respect to the foregoing warranties. GKF shall not be liable for anydirect, indirect and consequential losses or damages suffered by Hospital or by any other person,and Hospital 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, or with the accuracy,completeness or suitability of the Site Planning Criteria, including GKF’s good faith compliancetherewith. All warranty or other similar claims with respect to the Equipment or the Site PlanningCriteria shall be made by Hospital solely and exclusively against persons other than GKF, includingElekta or any other manufacturers or suppliers. In this regard and with prior written approval ofGKF, Hospital may, in GKF’s name, but at Hospital’s sole cost and expense, enforce all warranties,agreements or representations, if any, which may have been made by Elekta or manufacturers,suppliers or other third parties regarding the Equipment to GKF or Hospital. GKF shall not beresponsible for the operation of the Equipment. However, it shall be GKF’s responsibility that theEquipment be properly maintained.     18. Termination for Economic Justification.          18.1 If, following the initial twenty-four (24) months after the First Procedure Date andfollowing each subsequent 12 month period thereafter during the Term, based upon the utilization ofthe Equipment and other factors considered relevant by GKF in the exercise of its discretion,within a reasonable period of time after GKF’s written request, Hospital does not provide GKF witha reasonable economic justification to continue this Agreement and the provision of Gamma Knifeservices at the Hospital, then and in that event, GKF shall have the option to terminate thisAgreement by giving a written notice thereof to Hospital not less than ninety (90) days prior tothe effective date of the termination designated in GKF’s written notice.          18.2 Notwithstanding the provisions of Section 18.1, if at any time during the term of thisAgreement, Hospital is suspended or terminated from participation in the Medicare program, GKFshall have the option to terminate this Agreement immediately by giving written notice thereof toHospital.          18.3 As a result of any termination of this Agreement pursuant to this Section 18, GKF mayenter upon the Site and remove the Equipment and any improvements made by GKF to the Site withoutliability of any kind or nature for so doing or GKF may demand that Hospital remove and return theEquipment and such improvements to GKF, all at GKF’s sole cost and expense. GKF shall restore theSite to a similar pre-deinstallation appearance and condition.     19. Options to Extend Agreement. As of the end of the Term, Hospital shall have theoption either to:
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          19.1 Extend the Term of this Agreement for a specified period of time and upon such otherterms and conditions in writing as may be agreed upon by GKF and Hospital taking into account theuse (e.g., number of Gamma Knife procedures, etc.) of the Equipment at the Site during the initialTerm and other factors deemed relevant by the parties;          19.2 Terminate this Agreement as of the expiration of the Term.          Hospital shall exercise one (1) of the two (2) options referred to above by giving an irrevocablewritten notice thereof to GKF at least nine (9) months prior to the expiration of the initial Term.Any such notice shall be sufficient if it states in substance that Hospital elects to exercise itsoption and states which of the two (2) options referred to above Hospital is exercising. IfHospital fails to exercise the option granted herein at least nine (9) months prior to theexpiration of the initial Term, the option shall lapse and this Agreement shall expire as of theend of the initial Term. Further, if Hospital exercises the option specified in Section 19.1 aboveand the parties are unable to mutually agree upon the length of the extension of the Term or anyother terms or conditions applicable to such extension prior to the expiration of the Term, thisAgreement shall expire as of the end of the initial Term.     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 Lease 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 payment default within the applicablethirty (30) day period, such default shall not constitute an Event of Default.               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 covenants, duties or obligationsarising under this Agreement or the LGK Agreement and such failure continues for a period of thirty(30) days after written notice thereof by GKF to Hospital; however, if Hospital cures the defaultwithin the applicable thirty (30) day period or if the default reasonably requires more than thirty(30) days to cure, Hospital commences to cure the default during the initial thirty (30) day periodand Hospital diligently completes the cure as soon as reasonably possible following the end of thethirty (30) day period, such default shall not constitute an Event 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
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become due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or aninsolvent, files a petition seeking for itself any reorganization, arrangement, composition,readjustment, liquidation, dissolution or similar arrangement under any present or future statute,law or regulation or files an answer admitting the material allegations of a petition filed againstit in any such proceeding, consents to or acquiesces in the appointment of a trustee, receiver, orliquidator of it or of all or any substantial part of its assets or properties, or it or itsshareholders shall take any action 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.     20.2 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 and any improvements made by GKF to the Site without liability of any kind ornature for so doing or GKF may demand that Hospital remove and return the Equipment and suchimprovements to GKF, all at Hospital’s sole cost and expense. GKF shall restore the Site to asimilar pre-deinstallation appearance and condition.               20.2.2 Recover damages from Hospital as may be awarded by a court of competent jurisdictionfor the loss of the bargain represented by this Agreement. For purposes of determining suchdamages, the parties agree that the following methodology shall be used: (a) the amount of suchdamages shall be equal to the present value of the unpaid estimated future Lease Payments to bemade by Hospital to GKF through the end of the Term discounted at the rate of nine percent (9%);and (b) the unpaid estimated future Lease Payments shall be based on the historical trend ofpayments made by Hospital to GKF hereunder taking into account known factors which could impact thehistorical trend through the end of the Term. Hospital and GKF acknowledge that the methodologyset forth in this Section 20.2.2 constitutes a reasonable method to calculate GKF’s damagesresulting from an Event of Default under the circumstances existing as of the date of thisAgreement. GKF shall use reasonable commercial efforts to mitigate its damages by attempting tosell or lease the Equipment; provided that (i) GKF shall not be obligated to givepreference to the sale or lease of the Equipment over the sale, lease or other disposition ofsimilar equipment or improvements owned or leased by GKF, (ii) GKF shall have no obligation to sellor lease any improvements made by GKF to the Site, and (iii) GKF’s inability in good faith tomitigate damages shall not limit or otherwise affect the foregoing methodology for determiningdamages as set forth in this Section.
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               20.2.3 Sell, dispose of, hold, use or lease the Equipment or any improvements made by GKF tothe Site, as GKF in its sole and absolute discretion may determine (and GKF shall not be obligatedto give preference to the sale, lease or other disposition of the Equipment or improvements overthe sale, lease or other disposition of similar Equipment or improvements owned 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 or improvements, to enforce the termshereof or to recover damages for the breach hereof or to cancel this Agreement as to the Equipment.In addition to the foregoing remedies, Hospital shall be liable to GKF for all costs and expensesincurred by GKF as a result of the Event of Default or 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 Lease Payments and other sums owing under thisAgreement. Hospital shall in any event remain fully liable for all damages as may be provided bylaw and for all costs and expenses incurred by GKF on account of such default, including but notlimited to, all court costs. The rights and remedies afforded GKF under this Agreement shall bedeemed cumulative and not exclusive, and shall be in addition to any other rights or remedies toGKF provided by law or in equity.     21. Events of Default by GKF and Remedies.          21.1 The occurrence of any one of the following shall constitute an Event of Defaulthereunder:               21.1.1 GKF shall fail to observe or perform any of its covenants, duties or obligationsarising under this Agreement and such failure shall continue for a period of thirty (30) days afterwritten notice thereof is given by Hospital to GKF; however, if GKF cures the default within theapplicable thirty (30) day period or if the default reasonably requires more than thirty (30) daysto cure, GKF commences to cure the default during the initial thirty (30) day period and GKFdiligently completes the cure as soon as reasonably possible following the end of the thirty (30)day period, such default shall not constitute an Event of Default.               21.1.2 GKF ceases doing business as a going concern, makes an assignment for the benefit ofcreditors, admits in writing its inability to pay its debts as they become due, files a voluntarypetition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking foritself any reorganization, arrangement, composition, readjustment, liquidation, dissolution orsimilar arrangement under any present or future statute, law or regulation or files an answeradmitting the material allegations of a petition filed against it in any such proceeding, consentsto or acquiesces in the appointment of a trustee, receiver, or liquidator
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of it or of all or any substantial part of its assets or properties, or it or its shareholdersshall take any action looking to its dissolution or liquidation.               21.1.3 Within sixty (60) days after the commencement of any proceedings against GKF seekingreorganization, arrangement, readjustment, liquidation, dissolution or similar relief under anypresent or future statute, law or regulation, such proceedings shall not have been dismissed, or ifwithin thirty (30) days after the appointment without GKF’s consent or acquiescence of any trustee,receiver or liquidator of it or of all or any substantial part of its assets and properties, suchappointment shall not be vacated.          21.2 Upon the occurrence of an Event of Default involving GKF, Hospital may at its option doany or all of the following:               21.2.1 By written notice to GKF, immediately terminate this Agreement as to the Equipment and,in such event, GKF shall remove the Equipment, the Cobalt and any improvements made by GKF to theSite, at GKF’s sole cost and expense or, in the absence of removal by GKF within a reasonableperiod of time after a written request therefore, Hospital may remove the Equipment, the Cobalt andsuch improvements with all due care and store the same at GKF’s sole cost and expense.               21.2.2 Seek to recover from GKF such loss as may be realized by Hospital in the ordinarycourse of events as a result of the Event of Default.          21.3 GKF shall in any event remain fully liable for reasonable damages as provided by law andfor all costs and expenses incurred by GKF on account of such default, including but not limitedto, all court costs (other than attorneys’ fees). However, GKF shall not in any manner be orbecome liable to Hospital for any consequential or incidental damages that may be suffered byHospital which arise out of or result from the Event of Default.          21.4 Notwithstanding the occurrence of an Event of Default with respect to GKF (including anyclaim which would otherwise be in the nature of a set-off), Hospital shall fully perform and payits obligations hereunder (including payment of all Lease Payments) without set-off or defense ofany kind. Upon termination of this Agreement or the exercise of any other rights or remedies underthis Agreement or applicable law following an Event of Default, Hospital shall, without furtherrequest or demand, pay to GKF all Lease Payments and other sums owing under this Agreement when andas due.     22. Removal of Equipment. Upon expiration of the Term, GKF, at its cost and expense,shall remove the Equipment from the Site not more than ninety (90) days following the last day ofthe Term; provided that all of GKF’s right, title and interest in and to the improvementsmade by GKF to the Site pursuant to Section 6 above shall thereupon transfer to Hospital.     23. Insurance.
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          23.1 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. 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.          23.2 During the Term, Hospital shall, at its cost and expense, purchase and maintain in effectgeneral liability and professional liability insurance policies (or self-insurance coverage)covering the Site (together with all premises where the Site is located) and the use or operationof the Equipment by Hospital or its officers, directors, agents, employees, contractors orphysicians. The general liability and professional liability insurance policies shall providecoverage (or self-insurance coverage) in amounts not less than One Million Dollars ($1,000,000.00)per occurrence and Five Million Dollars ($5,000,000.00) annual aggregate. GKF shall be named asadditional insured party on the general liability and professional liability insurance policies tobe maintained hereunder by Hospital. The policies to be maintained by Hospital hereunder shall beevidenced by a certificate of insurance or other reasonable documentation which shall be deliveredby Hospital to GKF no later than the First Procedure Date and as of each annual renewal of suchpolicies during the Term.          23.3 During the construction of the Site and prior to the First Procedure Date, GKF, at itscost and expense, shall purchase and maintain a general liability insurance policy which conformswith the coverage amounts and other requirements described in Section 23.2 above and which namesHospital as an additional insured party. The policy to be maintained by GKF hereunder shall beevidenced by a certificate of insurance or other reasonable documentation which shall be deliveredby GKF to Hospital prior to the commencement of any construction at the Site.          23.4 During the Term, Hospital shall maintain all workers compensation insurance **as**requiredby applicable law.     24. Indemnification          24.1 Hospital and GKF each hereby covenants and agrees that it will defend, indemnify and holdthe other party and the other party’s 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) any liability or obligation relatedto the business of the indemnifying party prior to the date hereof; (ii) any obligation orliability arising from services provided under this Agreement by the indemnifying party to theextent any such liability or obligation directly results from the negligence or intentionalmisconduct of the indemnifying party, it’s employees or agents; or (iii) any obligation orliability resulting from a breach of any provision of this Agreement by the
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indemnifying party, it’s employees or agents. The obligations of the parties under thisSection shall survive the expiration or earlier termination of this Agreement.          24.2 Any party that intends to enforce an indemnity obligation shall give the indemnifyingparty notice of any claim as soon as possible, but the failure to give such notice shall notconstitute a waiver or release of the indemnifying party and shall not affect the rights of theindemnified party to recover under this indemnity, except to the extent the indemnifying party ismaterially prejudiced thereby. In connection with any claim giving rise to indemnity under thisSection resulting from or arising out of any claim or legal proceeding by a person who is not aparty to this Agreement, the indemnifying party, at its sole cost and expense, may, upon writtennotice to the indemnified party, assume control of the defense of such claim or legal proceeding,to the extent that the indemnifying party admits in writing its indemnification liability to theindemnified party with respect to all material elements thereof. If the indemnifying party assumesthe defense of any such claim or legal proceeding, the obligation of the indemnifying partyhereunder as to such claim or legal proceeding shall be to take all steps necessary in the defenseor settlement thereof and to hold the indemnified party harmless from and against any losses,damages, expenses or liability caused by or arising out of any settlement approved by theindemnifying party and the indemnified party or any judgment in connection with such claim or legalproceeding. Each indemnified party shall cooperate with the indemnifying party in the defense ofany such action, the defense of which is assumed by the indemnifying party. Except with theconsent of the indemnified party, which consent may be withheld at the indemnified party’s solediscretion, the indemnifying party shall not consent to any settlement or the entry of any judgmentarising from any such claim or legal proceeding which, in each case, does not include as anunconditional term thereof the delivery by the claimant or the plaintiff to the indemnified partyof a release from all liability in respect thereof. If the indemnifying party does not assume thedefense of any claim or litigation, any indemnified party may defend against such claim orlitigation in such manner as it may deem appropriate, including but not limited to settling suchclaim or litigation, after giving notice of the same to the indemnifying party, on such terms asthe indemnified party may deem appropriate. The indemnifying party will, promptly after any of thesame is incurred, reimburse the indemnified party in accordance with the provisions hereof for alldamages, losses, liabilities, costs and expenses incurred by the indemnified party.          24.3 The indemnity obligations under this Section shall survive the termination of thisAgreement with respect to events occurring during or relating to the Term.     25. Miscellaneous.          25.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns. Neither party shall assign thisAgreement nor any of its respective rights hereunder and Hospital shall not sublease the Equipmentwithout the prior written consent of the other party, which consent shall not be unreasonablywithheld. An assignment or sublease shall not relieve the assigning party or
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sublessor of any liability for performance of this Agreement during the remainder of the Term.Any purported assignment or sublease made without the other party’s prior written consent shall benull, void and of no force or effect.          25.2 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.          25.3 Validity. If for any reason any clause or provision of this Agreement, or theapplication of any such clause or provision in a particular context or to a particular situation,circumstance or person, should be held unenforceable, invalid or in violation of law by any courtor other tribunal of competent jurisdiction, then the application of such clause or provision incontexts or to situations, circumstances or persons other than that in or to which it is heldunenforceable, invalid or in violation of law shall not be affected thereby, and the remainingclauses and provisions hereof shall nevertheless remain in full force and effect.          25.4 Attorney’s Fees and Costs. In the event of any action, mediation or otherproceedings between or among the parties hereto with respect to this Agreement, each party shallpay for their own attorneys’ fees and related costs and expenses, irrespective of which party isdeemed to be the prevailing party.          25.5 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.          25.6 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.          25.7 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.          25.8 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.          25.9 Governing Law. This Agreement shall be interpreted and enforced in accordancewith the internal laws, and not the law of conflicts, of the State of Oklahoma applicable toagreements made and to be performed in that State.
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          25.10 Exhibits. All exhibits attached hereto and referred to in this Agreementare hereby incorporated by reference herein as though fully set forth at length.          25.11 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.          25.12 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.          25.13 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.          25.14 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    Four Embarcadero Center, Suite 3700    San Francisco, CA 94111  
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     To Hospital: Mark Nafziger    Senior VP & CFO    Mercy Health Center    4120 W Memorial Road    Oklahoma City, OK 73120  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.          25.15 Special Provisions Respecting Medicare and Medicaid Patients               25.15.1 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.               25.15.2 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.          25.16 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.
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          25.17 Independent Contractor Status. With respect to the performance of the dutiesand obligations arising under this Agreement, nothing in this Agreement is intended nor shall beconstrued to create a partnership, an employer/employee relationship, a joint venture relationship,or a lease or landlord/tenant relationship between GKF and Hospital.          25.18 Mediation. Except as provided herein, no civil action with respect to anydispute, claim or controversy arising out of or relating to this Agreement may be commenced untilthe matter has been submitted for non-binding mediation to the Judicial Arbitration and MediationServices, Inc. (“JAMS”), except that if JAMS is no longer in existence or is otherwise unable toappoint a neutral mediator, the parties shall submit the matter for non-binding mediation to theAmerican Arbitration Association (“AAA”), subject to the provisions in this section. Either partymay commence mediation by providing to the other party a written request for mediation, settingforth the subject of the dispute and the relief requested. The parties will cooperate with oneanother in selecting a mediator and in scheduling the mediation proceedings. The parties covenantthat they will participate in the mediation in good faith, and that they will share equally in itscosts. All offers, promises, conduct and statements, whether oral or written, made in the courseof the mediation by any of the parties, their agents, employees, experts and attorneys, and by themediator, are confidential, privileged and inadmissible for any purpose, including impeachment, inany litigation or other proceeding involving the parties, provided that evidence that isotherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as aresult of its use in the mediation. Either party may seek equitable relief prior to the mediationto preserve the status quo pending the completion of that process. Except for such an action toobtain equitable relief, neither party may commence a civil action with respect to the matterssubmitted to mediation until after the completion of the initial mediation session, or 45 daysafter the date of filing the written request for mediation, whichever occurs first. Mediation maycontinue after the commencement of a civil action, if the parties so desire. The provisions ofthis Section may be enforced by any court of competent jurisdiction, and the party seekingenforcement shall be entitled to an award of all costs, fees and expenses, including attorney’sfees, to be paid by the party against whom enforcement is ordered.     **IN WITNESS WHEREOF**, the parties hereto have caused this Agreement to be executed as of thedate first set forth above.       **“GKF”** **“Hospital”** **GK FINANCING, LLC**, **MERCY HEALTH CENTER**,a California limited liability company an Oklahoma not for profit corporation  By: /s/ Craig K. Tagawa Craig Tagawa