EXHIBIT 10.18
MANAGEMENT SERVICES AGREEMENT
BY AND BETWEEN
CASTLE DENTAL CENTERS OF CALIFORNIA, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
AND
▇▇▇▇▇▇▇ DENTAL CORPORATION,
A CALIFORNIA PROFESSIONAL CORPORATION
EFFECTIVE FEBRUARY 27, 2001
TABLE OF CONTENTS
Page No.
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ARTICLE I. DEFINITIONS 1
Section 1.1 Act............................................................ 2
Section 1.2 Adjusted Gross Revenue......................................... 2
Section 1.3 Adjustments.................................................... 2
Section 1.4 Ancillary Revenue.............................................. 2
Section 1.5 Base Management Fee............................................ 2
Section 1.6 Budget......................................................... 2
Section 1.7 Business Manager............................................... 2
Section 1.8 Business Manager Expense....................................... 2
Section 1.9 Confidential Information....................................... 2
Section 1.10 Center......................................................... 3
Section 1.11 Dental Services................................................ 3
Section 1.12 Dentist........................................................ 3
Section 1.13 GAAP........................................................... 3
Section 1.14 Management Fee................................................. 3
Section 1.15 Management Services............................................ 3
Section 1.16 Management Services Agreement.................................. 3
Section 1.17 Office Expense................................................. 4
Section 1.18 PC............................................................. 4
Section 1.19 PC Account..................................................... 5
Section 1.20 PC Expense..................................................... 5
Section 1.21 Performance Fee................................................ 5
Section 1.22 Practice Providers............................................. 5
Section 1.23 Practice Territory............................................. 5
Section 1.24 Professional Services Revenues................................. 5
Section 1.25 Representatives................................................ 5
Section 1.26 Shareholder.................................................... 5
Section 1.27 State.......................................................... 5
Section 1.28 Term........................................................... 5
ARTICLE II. APPOINTMENT AND AUTHORITY OF BUSINESS MANAGER......................... 5
Section 2.1 Appointment.................................................... 5
Section 2.2 Authority...................................................... 6
Section 2.3 Patient Referrals and Payments................................. 6
Section 2.4 Internal Management of PC...................................... 6
Section 2.5 Practice of Dentistry.......................................... 6
ARTICLE III. COVENANTS AND RESPONSIBILITIES OF BUSINESS MANAGER................... 7
Section 3.1 Centers and Equipment.......................................... 7
Section 3.2 Dental Supplies................................................ 8
Section 3.3 Support Services............................................... 8
Section 3.4 Quality Assurance, Risk Management, and Utilization Review..... 8
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Section 3.5 Licenses and Permits........................................... 8
Section 3.6 Personnel...................................................... 8
Section 3.7 Contract Negotiations.......................................... 9
Section 3.8 Billing and Collection......................................... 9
Section 3.9 PC Account..................................................... 10
Section 3.10 Fiscal Matters................................................. 10
Section 3.11 Reports and Records............................................ 12
Section 3.12 Recruitment of Practice Providers.............................. 12
Section 3.13 Business Manager's Insurance................................... 13
Section 3.14 No Warranty.................................................... 13
ARTICLE IV. COVENANTS AND RESPONSIBILITIES OF PC.................................. 13
Section 4.1 Organization and Operation..................................... 13
Section 4.2 PC Personnel................................................... 13
Section 4.3 Professional Standards......................................... 14
Section 4.4 Dental Services................................................ 14
Section 4.5 Peer Review/Quality Assurance.................................. 14
Section 4.6 PC's Insurance................................................. 15
Section 4.7 Name, Trademark................................................ 15
Section 4.8 Peer Review.................................................... 15
Section 4.9 Records........................................................ 16
Section 4.10 Indemnification................................................ 16
ARTICLE V. FINANCIAL ARRANGEMENT.................................................. 16
Section 5.1 Definitions.................................................... 16
Section 5.2 Management Fee................................................. 16
Section 5.3 Adjustments.................................................... 16
Section 5.4 Reasonable Value............................................... 17
Section 5.5 Payment of Management Fee...................................... 17
Section 5.6 Accounts Receivable............................................ 17
Section 5.7 Disputes Regarding Fees........................................ 18
ARTICLE VI. TERM AND TERMINATION.................................................. 18
Section 6.1 Initial and Renewal Term....................................... 18
Section 6.2 Termination.................................................... 18
Section 6.3 Effects of Termination......................................... 19
ARTICLE VII. MISCELLANEOUS........................................................ 20
Section 7.1 Administrative Services Only................................... 20
Section 7.2 Status of Contractor; Agency................................... 20
Section 7.3 Notices........................................................ 20
Section 7.4 Governing Law.................................................. 21
Section 7.5 Assignment..................................................... 21
Section 7.6 Arbitration.................................................... 21
Section 7.7 Waiver of Breach............................................... 23
Section 7.8 Enforcement.................................................... 23
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Section 7.9 Gender and Number.............................................. 23
Section 7.10 Additional Assurances.......................................... 23
Section 7.11 Consents, Approvals, and Exercise of Discretion................ 23
Section 7.12 Force Majeure.................................................. 24
Section 7.13 Severability................................................... 24
Section 7.14 Divisions and Headings......................................... 24
Section 7.15 Amendments and Management Services Agreement Execution......... 24
Section 7.16 Entire Management Services Agreement........................... 24
Section 7.17 Waiver of Trial by Jury........................................ 24
EXHIBITS
Exhibit A PC's Affidavit
Exhibit B Security Agreement
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MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT is made and entered into effective as
of February 27, 2001, by and between CASTLE DENTAL CENTERS OF CALIFORNIA,
L.L.C., a Delaware limited liability company ("Business Manager"), and ▇▇▇▇▇▇▇
DENTAL CORPORATION, a California professional corporation ("PC").
RECITALS
This Management Services Agreement is made with reference to the
following facts:
A. PC is a validly existing California professional corporation,
formed for and engaged in the practice of dentistry and the provision of dental
services to the general public in and around the Los Angeles, California
metropolitan area through individual dentists who are licensed to practice
dentistry in the State of California and who are employed or otherwise retained
by PC.
B. Business Manager is a validly existing Delaware limited
liability company, which has been duly formed to manage the business aspects of
the dental practice of PC.
C. PC desires to focus its energies, expertise and time on the
practice of dentistry and on the delivery of dental services to patients, and to
accomplish this goal it desires to delegate the increasingly more complex
business functions of its dental practice to persons with business expertise.
D. PC wishes to engage Business Manager to provide such management,
administrative and business services as are necessary and appropriate for the
day-to-day administration of the nondental aspects of PC's dental practice in
the Practice Territory (as defined below), and Business Manager desires to
provide such services all upon the terms and conditions hereinafter set forth.
E. PC and Business Manager have determined a fair market value for
the services to be rendered by Business Manager, and based on this fair market
value, have developed a formula for compensation for Business Manager that will
allow the parties to establish a relationship permitting each party to devote
its skills and expertise to the appropriate responsibilities and functions.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinabove and hereinafter set forth, the parties agree as follows:
ARTICLE I. DEFINITIONS
For the purposes of this Management Services Agreement, the following
terms shall have the following meanings ascribed thereto, unless otherwise
clearly required by the context in which such term is used.
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Section 1.1 Act. The term "Act" shall mean Sections 1600 through 1808
of the Business and Professions Code of the State of California, as amended, and
all corresponding regulations.
Section 1.2 Adjusted Gross Revenue. The term "Adjusted Gross Revenue"
shall mean the sum of Professional Services Revenue and Ancillary Revenue.
Section 1.3 Adjustments. The term "Adjustments" shall mean any
adjustments on an accrual basis for uncollectible accounts, third party payor
contractual adjustments, discounts, workers' compensation adjustments,
professional courtesies, and other reductions in collectible revenue that result
from activities that do not result in collectible charges.
Section 1.4 Ancillary Revenue. The term "Ancillary Revenue" shall mean
all other revenue actually recorded each month (net of Adjustments) that is not
Professional Services Revenues, and shall include the proceeds of key person
life and disability insurance as provided for in Section 3.14 below.
Section 1.5 Base Management Fee. The term "Base Management Fee" shall
mean the amount set forth in Section 5.1.
Section 1.6 Budget. The term "Budget" shall mean an operating budget
and capital expenditure budget for each fiscal year as prepared by Business
Manager and adopted by PC.
Section 1.7 Business Manager. The term "Business Manager" shall mean
Castle Dental Centers of California, L.L.C., a Delaware limited liability
company, or any entity that succeeds to the interests of Castle Dental Centers
of California, L.L.P., a Delaware limited liability company, and to whom the
obligations of Business Manager are assigned and transferred.
Section 1.8 Business Manager Expense. The term "Business Manager
Expense" shall mean an expense or cost incurred by the Business Manager and for
which the Business Manager, and not PC, is financially liable other than
expenses incurred by Business Manager that directly benefit PC which may be
allocated to Office Expense consistent with the Budget.
Section 1.9 Confidential Information. The term "Confidential
Information" shall mean any information of Business Manager or PC, as
appropriate (whether written or oral), including all notes, studies, patient
lists, information, forms, business or management methods, marketing data, fee
schedules, or trade secrets of the Business Manager or of PC, as applicable,
whether or not such Confidential Information is disclosed or otherwise made
available to one party by the other party pursuant to this Management Services
Agreement. Confidential Information shall also include the terms and provisions
of this Management Services Agreement and any transaction or document executed
by the parties pursuant to this Management Services Agreement. Confidential
Information does not include any information that (i) is or becomes generally
available to and known by the public (other than as a result of an unpermitted
disclosure directly or indirectly by the receiving party or its affiliates,
advisors, or
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Representatives); (ii) is or becomes available to the receiving party on a
nonconfidential basis from a source other than the furnishing party or its
affiliates, advisors, or Representatives, provided that such source is not and
was not bound by a confidentiality agreement with or other obligation of secrecy
to the furnishing party of which the receiving party has knowledge at the time
of such disclosure; or (iii) has already been or is hereafter independently
acquired or developed by the receiving party without violating any
confidentiality agreement with or other obligation of secrecy to the furnishing
party.
Section 1.10 Center. The term "Center" (collectively referred to as
"Centers") shall mean any office space, clinic, facility, including satellite
facilities, that Business Manager shall own or lease or otherwise procure for
the use of PC, as allowed by law, in the provision of Dental Services pursuant
to this Management Services Agreement.
Section 1.11 Dental Services. The term "Dental Services" shall mean
dental care and services, including but not limited to the practice of general
dentistry, orthodontics and all related dental care services provided by PC
through PC's Practice Providers that are retained by or professionally
affiliated with PC.
Section 1.12 Dentist. The term "Dentist" shall mean each
individually licensed professional who is employed or otherwise retained by or
associated with PC, each of whom shall meet at all times the qualifications
described in Section 4.2 and Section 4.3.
Section 1.13 GAAP. The term "GAAP" shall mean generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity or other
practices and procedures as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of the determination. For purposes of this Management Services Agreement, GAAP
shall be applied on an accrual basis in a manner consistent with the historic
practices of the person to which the term applies.
Section 1.14 Management Fee. The term "Management Fee" shall
mean Business Manager's compensation established as described in Article V
hereof.
Section 1.15 Management Services. The term "Management Services"
shall mean the business, administrative, and management services to be provided
for PC, including without limitation the provision of equipment, supplies,
support services, non-Practice Provider personnel, office space, management,
administration, financial recordkeeping and reporting, and other business office
services.
Section 1.16 Management Services Agreement. The term "Management
Services Agreement" shall mean this Management Services Agreement by and between
PC and Business Manager and any amendments hereto as may be adopted as provided
in this Management Services Agreement.
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Section 1.17 Office Expense. The term "Office Expense" shall
mean all operating and nonoperating expenses incurred by the Business Manager or
PC in the provision of services to or by PC. Office Expense shall not include
any expense that is a PC Expense or a Business Manager Expense. Without
limitation, Office Expense shall include:
(a) the salaries and benefits of all employees of Business Manager
at the Centers and the salaries and benefits of the non-Practice Provider
employees of PC, but not the salaries, benefits, or other direct costs of the
Practice Providers;
(b) the direct cost of any employee or consultant that provides
services at or in connection with the Centers for improved clinic performance,
such as management, billing and collections, business office consultation,
accounting and legal services;
(c) reasonable recruitment costs and out-of-pocket expenses of
Business Manager or PC directly related to the recruitment of additional
Practice Providers of PC;
(d) professional liability insurance expenses for Practice Providers
and comprehensive, general liability and workers' compensation insurance
covering the Centers and employees of PC and Business Manager at each Center;
(e) the expense of using, leasing, purchasing or otherwise procuring
each Center and related equipment, including depreciation;
(f) the cost of capital (whether as actual interest on indebtedness
incurred on behalf of PC or as reasonable imputed interest on capital advanced
by Business Manager, which shall be equal to the average cost of borrowing by
Business Manager from its primary commercial lender as reflected on its most
recent published financial statements) to finance or refinance obligations of
PC, purchase dental or nondental equipment, or finance new ventures of PC;
(g) the Base Management Fee;
(h) the reasonable out-of-pocket travel expenses associated with
attending meetings, conferences, or seminars to benefit PC;
(i) the reasonable costs and expenses associated with marketing,
advertising and promotional activities to benefit PC; and
(j) the cost of dental supplies (including but not limited to drugs,
pharmaceuticals, products, substances, items, or dental devices), office
supplies, inventory, and utilities other than those dental supplies or dental
inventory owned by PC on the date of this Management Services Agreement.
Section 1.18 PC. The term "PC" shall mean ▇▇▇▇▇▇▇ Dental Corporation, a
California professional corporation.
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Section 1.19 PC Account. The term "PC Account" shall mean the bank
account of PC established as described in Sections 3.8 and 3.9.
Section 1.20 PC Expense. The term "PC Expense" shall mean an expense
incurred by the Business Manager or PC that is consistent with the Budget and
for which PC, and not the Business Manager, is financially liable. PC Expense
shall include such items as Practice Provider salaries, benefits, and other
direct costs (including professional dues, subscriptions, continuing dental
education expenses, and travel costs for continuing dental education or other
business travel but excluding business travel requested by Business Manager,
which shall be an Office Expense).
Section 1.21 Performance Fee. The term "Performance Fee" shall mean the
amount payable to the Business Manager, if any, determined under Section 5.2, as
a Management Fee based upon the Business Manager achieving certain
pre-determined performance criteria.
Section 1.22 Practice Providers. The term "Practice Providers" shall
mean the Dentists and other individuals who are employees of PC or otherwise
under contract with PC to provide dental or dental, hygienic or other assistance
or services to patients of PC or otherwise required by the Act to be employees
of PC to provide services to patients of the practice.
Section 1.23 Practice Territory. The term "Practice Territory" shall
mean the geographic area within a radius of ten (10) miles of any current or
future facility from which PC provides Dental Services in California,
representing the specific geographic boundaries of the dental practice conducted
by PC within its particular urban, metropolitan area.
Section 1.24 Professional Services Revenues. The term "Professional
Services Revenues" shall mean the sum of all professional fees actually recorded
each month on an accrual basis under GAAP (net of Adjustments) as a result of
Dental Services and related services rendered by the shareholders and Practice
Providers of PC.
Section 1.25 Representatives. The term "Representatives" shall mean a
party's officers, directors, employees, or other agents or representatives.
Section 1.26 Shareholder. The term "Shareholder" shall mean ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, D.D.S., an individual licensed to practice dentistry in the State and
the owner of all of the capital stock of PC.
Section 1.27 State. The term "State" shall mean the State of
California.
Section 1.28 Term. The term "Term" shall mean the initial and any
renewal periods of duration of this Management Services Agreement as described
in Section 6.1.
ARTICLE II. APPOINTMENT AND AUTHORITY OF BUSINESS MANAGER
Section 2.1 Appointment. PC hereby appoints Business Manager as its
sole and exclusive agent for the management, and administration of the business
functions and business
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affairs of PC, and Business Manager hereby accepts such appointment, subject at
all times to the provisions of this Management Services Agreement.
Section 2.2 Authority. Consistent with the provisions of this
Management Services Agreement, Business Manager shall have the responsibility
and commensurate authority to provide Management Services for PC. Subject to the
terms and conditions of this Management Services Agreement, Business Manager is
hereby expressly authorized to provide the Management Services in any reasonable
manner Business Manager deems appropriate to meet the day-to-day requirements of
the business functions of PC. Business Manager is also expressly authorized to
negotiate and execute on behalf of PC contracts that do not relate to the
provision of Dental Services. PC shall give Business Manager thirty (30) days
prior notice of PC's intent to execute any agreement obligating PC to perform
Dental Services or otherwise creating a binding legal obligation on PC. The
parties acknowledge and agree that PC, through its Dentists, shall be
responsible for and shall have complete authority, responsibility, supervision,
and control over the provision of all Dental Services and other professional
health care services performed for patients, and that all diagnoses, treatments,
procedures, and other professional health care services shall be provided and
performed exclusively by or under the supervision of Dentists as such Dentists,
in their sole discretion, deem appropriate. Business Manager shall have and
exercise absolutely no control or supervision over the provision of Dental
Services.
Section 2.3 Patient Referrals and Payments. Business Manager and PC
agree that the benefits to PC hereunder do not require, are not payment for, and
are not in any way contingent upon the referral, admission, or any other
arrangement for the provision of any item or service offered by Business Manager
to patients of PC or its shareholders, officers, directors, employees,
contractors or agents in any facility, laboratory or health care operation
controlled, managed, or operated by Business Manager nor are such benefits in
any way contingent upon the recommendation, referral or any other arrangement
for the provision of any item or service offered by PC or any of its Practice
Providers, employees, contractors or agents. Further, Business Manager and PC
agree that the payment of monies hereunder in no way represents the division,
sharing, splitting or other allocation of fees for Dental Services between PC
and Business Manager.
Section 2.4 Internal Management of PC. Matters involving the internal
management, control, or finances of PC, including specifically the allocation of
professional income among the shareholders and Practice Providers of PC, tax
planning, and investment planning, shall remain the exclusive responsibility of
PC and the shareholders of PC.
Section 2.5 Practice of Dentistry. The parties acknowledge that
Business Manager is not authorized or qualified to engage in any activity that
may be construed or deemed to constitute the practice of dentistry nor shall
Business Manager now or in the future be regarded as practicing dentistry within
the meaning of Section 1625 of the Act. To the extent any act or service herein
required by Business Manager should be construed by a court of competent
jurisdiction or by the State Board of Dental Examiners to constitute the
practice of dentistry, the requirement to perform that act or service by
Business Manager shall be deemed waived and unenforceable and shall not
constitute a breach or default by Business Manager under this Agreement, and the
parties shall take the actions contemplated by Section 6.2(d) hereof.
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ARTICLE III. COVENANTS AND RESPONSIBILITIES OF BUSINESS MANAGER
During the Term, Business Manager shall provide all Management Services
as are necessary and appropriate for the day-to-day administration of the
business aspects of PC's operations, including without limitation those set
forth in this Article III in accordance with all law, rules, regulations and
guidelines applicable to the provision of Management Services.
Section 3.1 Centers and Equipment.
(a) Subject to Section 3.1(b), as necessary and appropriate, taking
into consideration the professional concerns of PC, Business Manager shall in
its reasonable discretion lease, acquire or otherwise procure Centers in a
location or locations reasonably acceptable to PC and shall permit PC to use
each such Center pursuant to this Management Services Agreement, by sublease or
otherwise as required by law.
(b) PC shall not enter into any lease or sublease with respect to a
Center without Business Manager's prior consent. In the event PC is the lessee
of any Center under a lease with an unrelated and nonaffiliated lessor, Business
Manager may require PC to assign such lease to Business Manager upon receipt of
consent from the lessor and Business Manager shall permit PC to use such Center
pursuant to this Management Services Agreement, by sublease or otherwise as
required by law. PC shall use its best efforts to assist in obtaining the
lessor's consent to the assignment. Upon request, PC shall execute any
instruments and shall take any acts that Business Manager may deem necessary to
accomplish the assignment of the lease. Any expenses incurred in the assignment
shall be Office Expenses.
(c) Business Manager shall provide all nondental equipment,
fixtures, office supplies, furniture and furnishings deemed reasonably necessary
by Business Manager for the operation of each Center and reasonably necessary
for the provision of Dental Services pursuant to this Management Services
Agreement, by lease, sublease or otherwise as required by law.
(d) Business Manager shall provide, finance, or cause to be provided
or financed dental related equipment as required by PC. PC shall have final
authority in all dental equipment selections, and Business Manager shall have no
authority in regard to dental equipment selection issues. Business Manager may,
however, advise PC on the relationship between its dental equipment decisions
and the overall administrative and financial operations of the practice. All
dental and nondental equipment acquired for the use of PC shall be owned by
Business Manager.
(e) Business Manager shall be responsible for the repair and
maintenance of each Center, consistent with Business Manager's responsibilities
under the terms of any lease or other use arrangement, and for the repair,
maintenance, and replacement of all equipment other than such repairs,
maintenance and replacement necessitated by the negligence or willful misconduct
of PC, its Dentists or other personnel employed by PC, the repair or replacement
of which shall be a PC Expense and not an Office Expense.
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Section 3.2 Dental Supplies. Business Manager shall order, procure,
purchase and provide on behalf of and as agent for PC all dental supplies
necessary and appropriate for the practice of PC in the reasonable discretion of
PC unless otherwise prohibited by federal and/or State law. Furthermore,
Business Manager shall ensure that each Center is at all times adequately
stocked with the dental supplies that are necessary and appropriate for the
operation of PC and required for the provision of Dental Services. The ultimate
oversight, supervision and ownership for all dental supplies is and shall remain
the sole responsibility of PC. As used in this provision the term "dental
supplies" shall mean all drugs, pharmaceuticals, products, substances, items or
devices whose purchase, possession, maintenance, administration, prescription or
security requires the authorization or order of a licensed health care provider
or requires a permit, registration, certification or other governmental
authorization held by a licensed health care provider as specified under any
federal and/or State law.
Section 3.3 Support Services. Business Manager shall provide or
arrange for all printing, stationery, forms, postage, duplication or
photocopying services, and other support services as are reasonably necessary
and appropriate for the operation of each Center and the provision of Dental
Services therein.
Section 3.4 Quality Assurance, Risk Management, and Utilization
Review. Business Manager shall, upon the request of PC, assist PC in PC's
establishment of procedures to ensure the consistency, quality, appropriateness
and necessity of Dental Services provided by PC, and shall provide
administrative support for PC's overall quality assurance, risk management, and
utilization review programs. Business Manager shall perform these tasks in a
manner to ensure the confidentiality and nondiscoverability of these program
actions to the fullest extent allowable under State and federal law.
Section 3.5 Licenses and Permits. Business Manager shall, on behalf of
and in the name of PC, coordinate all development and planning processes, and
apply for and use reasonable efforts to obtain and maintain all federal, State,
and local licenses and regulatory permits required for or in connection with the
operation of PC and equipment (existing and future) located at each Center,
other than those relating to the practice of dentistry or the administration of
drugs by Dentists retained by or associated with PC.
Section 3.6 Personnel. Business Manager shall, consistent with the
Budget, employ or otherwise retain and shall be responsible for selecting,
hiring, training, supervising, and terminating, all management, administrative,
clerical, secretarial, bookkeeping, accounting, payroll, billing and collection
and other non-Practice Provider personnel as Business Manager deems reasonably
necessary and appropriate to enable Business Manager to perform its duties and
obligations under this Management Services Agreement. All such personnel
employed by Business Manager at each Center shall be reasonably acceptable to PC
and the Business Manager shall consult with PC on the individual who is hired as
PC's office manager. Business Manager shall, consistent with the Budget, have
sole responsibility for determining the salaries and providing such fringe
benefits, and for withholding, as required by law, any sums for income tax,
unemployment insurance, social security, or any other withholding required by
applicable law or governmental requirement.
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Section 3.7 Contract Negotiations. Business Manager shall advise PC
with respect to and negotiate, either directly or on PC's behalf, as appropriate
and allowed by law, all contractual arrangements between PC and third parties as
are reasonably necessary and appropriate for PC's provision of Dental Services,
including, without limitation, negotiated price agreements with third party
payors, alternative delivery systems, or other purchasers of group health care
services, provided that the payor with whom each contractual arrangement is
entered into agrees to pay an amount for PC's professional services thereunder
equal to or greater than the minimum rate that PC shall specify to Business
Manager.
Section 3.8 Billing and Collection. On behalf of and for the account
of PC, Business Manager shall establish and maintain credit and billing and
collection policies and procedures, and shall timely ▇▇▇▇ and collect all
professional and other fees for all Dental Services provided by PC, or Practice
Providers employed or otherwise retained by PC. Business Manager shall advise
and consult with PC regarding the fees for Dental Services provided by PC; it
being understood, however, that PC shall establish the fees to be charged for
Dental Services and that Business Manager shall have no authority whatsoever
with respect to the establishment of such fees. In connection with the billing
and collection services to be provided hereunder, and throughout the Term (and
thereafter as provided in Section 6.3), PC hereby grants to Business Manager a
special power of attorney and appoints Business Manager as PC's exclusive true
and lawful agent and attorney-in-fact, and Business Manager hereby accepts such
special power of attorney and appointment, for the following purposes:
(a) To ▇▇▇▇ PC's patients, in PC's name and on PC's behalf, for all
Dental Services provided by PC to patients.
(b) To ▇▇▇▇, in PC's name and on PC's behalf, all claims for
reimbursement or indemnification from Blue Shield/Blue Cross, insurance
companies and all other third party payors or fiscal intermediaries for all
covered billable Dental Services provided by PC to patients.
(c) To collect and receive in Business Manager's name and for
Business Manager's account all accounts receivable of PC purchased by Business
Manager, and to deposit such collections in an account selected by Business
Manager and maintained in Business Manager's name.
(d) To collect and receive, in PC's name and on PC's behalf, all
accounts receivable generated by such ▇▇▇▇▇▇▇▇ and claims for reimbursement that
have not been purchased by Business Manager, to administer such accounts
including, but not limited to, (i) extending the time of payment of any such
accounts for cash, credit or otherwise; (ii) discharging or releasing the
obligors of any such accounts; (iii) suing, assigning or selling at a discount
such accounts to collection agencies; or (iv) taking other measures to require
the payment of any such accounts.
(e) To deposit all amounts collected under clause (d) above into PC
Account which shall be and at all times remain in PC's name. PC covenants to
transfer and deliver to Business Manager for deposit into PC Account (or, with
respect to accounts receivable purchased by Business Manager, Business Manager's
account) all funds received by PC from patients or third
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party payors for Dental Services. Upon receipt by Business Manager of any funds
from patients or third party payors or from PC pursuant hereto for Dental
Services, Business Manager shall immediately deposit those that relate to
accounts receivable covered by clause (d) above into PC Account. Business
Manager shall disburse such deposited funds to creditors and other persons on
behalf of PC, maintaining records of such receipt and disbursement of funds in
accordance with Section 3.9(b).
(f) To take possession of, endorse in the name of PC, and deposit
into the PC Account any notes, checks, money orders, insurance payments, and any
other instruments received in payment for Dental Services that relate to
accounts receivable covered by clause (d) above.
(g) To sign checks, drafts, bank notes or other instruments on
behalf of PC, and to make withdrawals from the PC Account for payments specified
in this Management Services Agreement.
Upon request of Business Manager, PC shall execute and deliver to the financial
institution wherein the PC Account is maintained, such additional documents or
instruments as may be necessary to evidence or effect the special and limited
power of attorney granted to Business Manager by PC pursuant to this Section 3.8
or pursuant to Section 3.9 of this Management Services Agreement. The special
and limited power of attorney granted herein shall be coupled with an interest
and shall be irrevocable except with Business Manager's written consent. The
irrevocable power of attorney shall expire on the later of when this Management
Services Agreement has been terminated, when all accounts receivable purchased
by Business Manager have been collected, or when all Management Fees due to
Business Manager have been paid. If Business Manager assigns this Management
Services Agreement in accordance with its terms, then PC shall execute a power
of attorney in favor of the assignee including substantially the same terms set
forth in this Section 3.8.
Section 3.9 PC Account.
(a) Access. Business Manager shall have access to the PC Account
solely for the purposes contemplated hereby. PC shall neither draw checks on the
PC Account nor request Business Manager to do so.
(b) Priority of Payments. Business Manager shall apply on a monthly
basis, except as otherwise stated hereunder, funds that are in the PC Account in
the following order of priority: (i) PC Expenses; (ii) Office Expenses (other
than the Base Management Fee); (iii) Management Fees (both Base Management Fee
and Performance Fee); and (iv) any other expenditures.
Section 3.10 Fiscal Matters.
(a) Annual Budget.
(1) Initial Budget. The initial Budget shall be agreed upon
and approved in writing by the parties before the execution of this
Management Services Agreement. The
10
initial Budget shall include an exhibit setting forth the criteria under
which Business Manager shall be entitled to receive the Performance Fee.
(2) Process for Succeeding Budgets. Annually and at least
thirty (30) days prior to the commencement of each fiscal year of PC,
Business Manager shall prepare and deliver to PC for PC's approval a
proposed Budget, setting forth an estimate of PC's revenues and expenses
for the upcoming fiscal year (including, without limitation, the
Management Fee and Performance Fee associated with the services provided
by Business Manager hereunder). PC shall review the proposed Budget and
either approve the proposed Budget or request any changes within fifteen
(15) days after receiving the proposed Budget. The Budget shall be
adopted by PC after its approval thereof and may be revised or modified
only in consultation with the Business Manager.
(3) Succeeding Budgets; Special Rates. In each succeeding
Budget, unless the parties otherwise mutually agree or are otherwise
precluded by law or regulation, the criteria for the Performance Fee and
Business Manager's right to receive the Performance Fee shall be
continued on the same basis.
(4) Deadlock. In the event the parties are unable to agree
on a Budget by the beginning of the fiscal year, until an agreement is
reached, the Budget for the prior year shall be deemed to be adopted as
the Budget for the current year, with each line item in the Budget (with
the exception of the Base Management Fee and any one-time or
non-recurring expenses included in such prior Budget) increased or
decreased by (i) the percentage by which the Adjusted Gross Revenue in
the current year has increased or decreased compared to the
corresponding period of the prior year; (ii) the increase or decrease
from the prior year in the Consumer Price Index - Health/Medical
Services, Los Angeles, California area; and (iii) the proportionate
increase or decrease in mutually agreed upon personnel costs as measured
by the increase or decrease in full-time-equivalent personnel.
(5) Obligation of Business Manager. Business Manager shall
use commercially reasonable efforts to manage and administer the
operations of PC as herein provided so that the actual revenues, costs
and expenses of the operation and maintenance of PC during any
applicable period of PC's fiscal year shall be consistent with the
Budget.
(b) Accounting and Financial Records. Business Manager shall
establish and administer accounting procedures, controls, and systems for the
development, preparation, and safekeeping of administrative or financial records
and books of account relating to the business and financial affairs of PC and
the provision of Dental Services all of which shall be prepared and maintained
in accordance with GAAP and applicable laws and regulations. Business Manager
shall prepare and deliver to PC, within one hundred twenty (120) days of the end
of each calendar year, a balance sheet and a profit and loss statement
reflecting the financial status of PC in regard to the provision of Dental
Services as of the end of such calendar year, all of which shall be prepared in
accordance with GAAP consistently applied. In addition, Business
11
Manager shall prepare or assist in the preparation of any other financial
statements or records as PC may reasonably request.
(c) Review of Expenditures. PC shall review all expenditures related
to the operation of PC, but PC shall not have the power to prohibit or
invalidate any expenditure that is consistent with the Budget. Business Manager
shall not have any authority to make any expenditures not consistent with the
Budget without PC Consent.
(d) Tax Matters.
(1) In General. Business Manager shall prepare or arrange
for the preparation by an accountant approved in advance by PC (which
approval shall not be unreasonably withheld) of all appropriate tax
returns and reports required of PC.
(2) Sales and Use Taxes. Business Manager and PC acknowledge
and agree that to the extent that any of the services to be provided by
Business Manager hereunder may be subject to any State sales and use
taxes, Business Manager may have a legal obligation to collect such
taxes from PC and to remit same to the appropriate tax collection
authorities. PC agrees to pay in addition to the payment of the
Management Fee, the applicable State sales and use taxes in respect of
the portion of the Management Fees attributable to such services.
Section 3.11 Reports and Records. Business Manager shall establish,
monitor, and maintain procedures and policies for the timely creation,
preparation, filing and retrieval of all dental records generated by PC in
connection with PC's provision of Dental Services; and, subject to applicable
law, shall use its best efforts to ensure that dental records are promptly
available to Dentists and any other appropriate persons. All such dental records
shall be retained and maintained in accordance with all applicable State and
federal laws relating to the confidentiality and retention thereof. All dental
records shall be and remain the property and under the control of PC and shall
be located at the applicable Center so that they are readily available for
patient care, and PC shall remain the custodian thereof and responsible for
their maintenance. Business Manager shall use its reasonable efforts to preserve
the confidentiality of dental records and use information contained in such
records only for the limited purpose necessary to perform the services set forth
herein; provided, however, in no event shall a breach of said confidentiality be
deemed a default under this Agreement.
Section 3.12 Recruitment of Practice Providers. Upon PC's request,
Business Manager shall perform all administrative services reasonably necessary
and appropriate to recruit potential Practice Providers to become employees of
PC. Business Manager shall provide PC with model agreements to document PC's
employment, retention or other service arrangements with such individuals. It
will be and remain the sole and complete responsibility of PC to interview,
select, contract with, supervise, control and terminate all Practice Providers
performing Dental Services or other professional services, and Business Manager
shall have no authority whatsoever with respect to such activities.
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Section 3.13 Business Manager's Insurance. Throughout the Term,
Business Manager shall, as an Office Expense, obtain and maintain with
commercial carriers, through self-insurance or some combination thereof,
appropriate worker's compensation coverage for Business Manager's employed
personnel provided pursuant to this Management Services Agreement, and
professional, casualty and comprehensive general liability insurance covering
Shareholder, Business Manager, Business Manager's personnel, and all of Business
Manager's equipment in such amounts, on such basis and upon such terms and
conditions as Business Manager deems appropriate. Upon the request of PC or
Shareholder, Business Manager shall provide PC with a certificate evidencing
such insurance coverage. Business Manager may also carry, as an Office Expense,
key person life and disability insurance on any shareholder or Dentist employee
of PC in amounts determined reasonable and sufficient by Business Manager.
Business Manager shall be the owner and beneficiary of any such insurance. PC
and Business Manager agree to use their best efforts to have each other named as
additional insureds on the other's respective liability insurance policies at
Business Manager's expense.
Section 3.14 No Warranty. PC acknowledges that Business Manager has not
made and will not make any express or implied warranties or representations that
the services provided by Business Manager will result in any particular amount
or level of dental practice or income to PC.
ARTICLE IV. COVENANTS AND RESPONSIBILITIES OF PC
Section 4.1 Organization and Operation. PC, as a continuing condition
of Business Manager's obligations under this Management Services Agreement,
shall at all times during the Term be and remain legally organized and operated
to provide Dental Services in a manner consistent with all State and federal
laws. PC shall operate and maintain within the Practice Territory a full time
practice of dentistry specializing in the provision of Dental Services. PC shall
be responsible for the management of its practice and the Center, in accordance
with the requirements of the Act.
Section 4.2 PC Personnel.
(a) Dental Personnel. PC shall retain, as a PC Expense and not as an
Office Expense, that number of Practice Providers as are reasonably necessary
and appropriate in the sole discretion of PC for the provision of Dental
Services. Each Dentist retained by PC shall hold and maintain a valid and
unrestricted license to practice dentistry in the State, and shall be competent
in the practice of dentistry, including any subspecialties that the retained
Dentist will practice on behalf of PC. PC shall enter into and maintain with
each such retained Dentist a written employment agreement in a form reasonably
satisfactory to PC and Business Manager and will not commit and permit to remain
outstanding any breach of such employment agreement that would allow the Dentist
to terminate for cause. PC shall be responsible for paying the compensation and
benefits, as applicable, for all Practice Providers or other contracted or
affiliated dentists, and for withholding, as required by law, any sums for
income tax, unemployment insurance, social security, or any other withholding
required by applicable law. Business Manager may, on behalf of PC, establish and
administer the compensation with respect to such individuals in accordance with
the written agreement between PC and each Practice
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Provider. Business Manager shall neither control nor direct any Practice
Provider in the performance of Dental Services for patients.
(b) Employment of Non-Dentist Practice Providers. PC shall employ or
retain, as an Office Expense, all non-dentist Practice Providers, such as dental
assistants, dental hygienists and dental technicians, required under the Act or
otherwise required by law to work under the direct supervision of a Dentist or
who Business Manager and PC determine should work under the direct supervision
of a Dentist. Such non-dentist dental care personnel shall be under PC's
control, supervision and direction in the performance of Dental Services for
patients.
Section 4.3 Professional Standards. As a continuing condition of
Business Manager's obligations hereunder, each Practice Provider must (i) comply
with, be controlled and governed by and otherwise provide Dental Services in
accordance with the code of professional conduct and applicable federal, State
and municipal laws, rules, regulations, ordinances and orders, and the ethics
and standard of care of the dental community wherein any Center is located and
(ii) obtain and retain appropriate dental staff membership with appropriate
clinical privileges at any hospital or health care facility at which Dental
Services are to be provided. Procurement of temporary staff privileges pending
the completion of the dental staff approval process shall satisfy this
provision, provided the Dentist actively pursues full appointment and actually
receives full appointment within a reasonable time. In the event that any
disciplinary, medical malpractice or other actions are initiated or threatened
against any Practice Provider, PC shall immediately inform the Business Manager
of such action and the underlying facts and circumstances subject to such
confidentiality agreement or arrangements as PC and the Business Manager shall
mutually determine at or prior to the time of such disclosure. Deficiencies
discovered in the performance of any personnel or in the quality of professional
services shall be reported immediately to the Business Manager, and appropriate
steps shall be taken by PC at once to remedy such deficiencies.
Section 4.4 Dental Services. PC shall ensure that Dentists and
non-dentist Practice Providers are available to provide Dental Services to
patients. In the event that Dentists are not available to provide Dental
Services coverage, PC shall engage and retain locum tenens coverage as it deems
reasonable and appropriate based on patient care requirements. Dentists retained
on a locum tenens basis shall meet all of the requirements of Section 4.3, and
the cost of providing locum tenens coverage shall be a PC Expense. With the
assistance of the Business Manager, PC and the Dentists shall be responsible for
scheduling Dentist and non-dentist Practice Provider coverage of all dental
procedures. PC shall cause all Dentists to develop and promote PC.
Section 4.5 Peer Review/Quality Assurance. PC shall adopt a peer
review/quality assessment program to monitor and evaluate the quality and
cost-effectiveness of Dental Services provided by dental personnel of PC. Upon
request of PC, Business Manager shall provide administrative assistance to PC in
performing its peer review/quality assurance activities, but only if such
assistance can be provided consistent with maintaining the confidentiality and
nondiscoverability of the processes and actions of the Peer Review/Quality
Assurance process of PC and not be regarded as practicing dentistry under the
Act.
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Section 4.6 PC's Insurance. PC shall, as an Office Expense, obtain and
maintain with commercial carriers acceptable to Business Manager appropriate
worker's compensation coverage for PC's employed personnel, if any, and
professional and comprehensive general liability insurance covering PC,
Shareholder and each of the Dentists PC retains or employs to provide Dental
Services. As an Office Expense, insurance premium costs shall be paid in the
order of priority set forth in Section 3.9(b), which section provides that funds
in the PC Account shall be allocated to Office Expenses before any Management
Fees are paid. The comprehensive general liability coverage shall be in the
minimum amount of One Million Dollars ($1,000,000) for each occurrence and Three
Million Dollars ($3,000,000) annual aggregate; and professional liability
coverage shall be in the minimum amount of One Million Dollars ($1,000,000) for
each occurrence and Three Million Hundred Thousand Dollars ($3,000,000) annual
aggregate. The insurance policy or policies shall provide for at least thirty
(30) days advance written notice to PC from the insurer as to any alteration of
coverage, cancellation, or proposed cancellation for any cause. PC shall cause
to be issued to Business Manager by such insurer or insurers a certificate
reflecting such coverage and shall provide written notice to Business Manager
promptly upon receipt of notice given to Dentist of the cancellation or proposed
cancellation of such insurance for any cause. Upon the termination of this
Management Services Agreement for any reason, PC shall obtain and maintain as a
PC Expense "tail" professional liability coverage, in the amounts specified in
this section for an extended reporting period of 15 years, and Business Manager
shall be responsible for reimbursing PC for the cost of all premiums for "tail"
insurance coverage. In no event shall the professional liability insurance
carrier be replaced or changed without PC Consent and Business Manager Consent.
PC and Business Manager agree to use their best efforts to have each other named
as additional insureds on the other's respective professional liability
insurance at Business Manager's expense.
Section 4.7 Name, Trademark. PC represents and warrants that, as of
the date hereof, PC conducts its professional practice under the name of, and
only under the name of "Castle Dental Centers Dental Group of ▇▇▇▇▇▇▇ Dental
Corporation" and that such name is the name of PC under California law, and that
to its knowledge PC is the sole and absolute owner of such name. PC covenants
and promises that, without the prior written consent of the Business Manager, PC
will not:
(a) take any action or omit to take any action that is reasonably
likely to result in the change or loss of such name;
(b) license, sell, give, or otherwise transfer such name or the
right to use such name to any dental practice, dentist, professional
corporation, or any other entity; or
(c) cease conducting the professional practice of PC under such
name.
Section 4.8 Peer Review. PC shall designate a committee of Dentists to
function as a dental peer review committee to review credentials of potential
recruits, perform quality assurance functions, and otherwise resolve dental
competence issues. The dental peer review committee shall function pursuant to
formal written policies and procedures.
15
Section 4.9 Records. PC will keep or cause to be kept accurate,
complete and timely dental and other records of all patients. The management of
all dental and patient files and records shall comply with the Act regarding
their confidentiality and retention and all files and records shall be located
so that they are readily accessible for patient care, consistent with ordinary
records management practices. Such records shall be sufficient to enable the
Business Manager, on behalf of PC, to obtain payments for services and related
charges and to facilitate the delivery of quality patient care by PC.
Notwithstanding the foregoing, patient dental records shall be and remain the
property of PC and the contents thereof shall be solely the responsibility of
PC.
Section 4.10 Indemnification. PC shall indemnify, hold harmless and
defend Business Manager, its officers, directors and employees, from and against
any and all liability, loss, damage, claim, causes of action and expenses
(including reasonable attorneys' fees), whether or not covered by insurance,
caused or asserted to have been caused, directly or indirectly, by or as a
result of the performance of Dental Services or any other acts or omissions by
PC and/or its shareholders, agents, employees and/or subcontractors (other than
Business Manager) during the term hereof. Business Manager shall indemnify, hold
harmless and defend PC, its officers, directors and employees, from and against
any and all liability, loss, damage, claim, causes of action and expenses
(including reasonable attorneys' fees), caused or asserted to have been caused,
directly or indirectly, by or as a result of the performance of any intentional
acts, negligent acts, or omissions by Business Manager and/or its shareholders,
agents, employees and/or subcontractors (other than PC) during the term of this
Agreement.
ARTICLE V. FINANCIAL ARRANGEMENT
Section 5.1 Definitions. For purposes of this Article V, capitalized
terms used herein shall have the meanings ascribed as follows:
(a) Base Management Fee. The Base Management Fee shall be the
amount, calculated on a monthly basis, that is equal to thirty percent (30%) of
the Adjusted Gross Revenue attributable to the applicable monthly period.
(b) Performance Fee. The Performance Fee shall be the amount,
calculated on a monthly basis, that is calculated in accordance with the
applicable Exhibit to the Budget.
Section 5.2 Management Fee. PC and Business Manager agree to the
compensation set forth herein as being paid to Business Manager in consideration
of a substantial commitment made by Business Manager hereunder and that such
fees are fair and reasonable. Each month, in the priority established by Section
3.9 (b), Business Manager shall be paid the following:
(i) the amount of all Office Expenses (other than the Base
Management Fee) paid by the Business Manager on behalf of PC.
(ii) the Base Management Fee.
(iii) the Performance Fee.
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Section 5.3 Adjustments. If there are not sufficient funds to pay
either or both of the Base Management Fee or the Performance Fee, all unpaid
amounts shall accumulate and carry over from month to month until paid or until
the termination of this Management Services Agreement, in which case such unpaid
amounts shall be immediately due and payable as of the date of termination.
Amounts carried over shall earn interest at the rate of ten percent (10%) per
annum. Furthermore, the amount of the Performance Fee paid will be monitored and
reconciled on an annual basis and any overpayments of the Performance Fee shall
be promptly refunded by the Business Manager.
Section 5.4 Reasonable Value. Payment of the Base Management Fee or
Performance Fee is not intended to be and shall not be interpreted or applied as
permitting Business Manager to share in PC's fees for Dental Services or any
other services, but is acknowledged as the parties' negotiated agreement as to
the reasonable fair market value of the equipment, contract analysis and
support, other support services, purchasing, personnel, office space,
management, administration, strategic management and other items and services
furnished by Business Manager pursuant to this Management Services Agreement,
considering the nature and volume of the services required and the risks assumed
by Business Manager. PC acknowledges that the compensation arrangement is
reasonable under the circumstances noted herein and has executed an Affidavit
attesting to this fact which is attached hereto as Exhibit A and incorporated
herein by this reference.
Section 5.5 Payment of Management Fee. To facilitate the payment of
the Management Fee as provided in Section 5.1 hereof, PC hereby expressly
authorizes Business Manager to make withdrawals of the Management Fee from the
PC Account as such fee becomes due and payable during the Term and thereafter as
provided in Section 6.3.
Section 5.6 Accounts Receivable. To assure that PC receives the entire
amount of professional fees for its services and to assist PC in maintaining
reasonable cash flow for the payment of Office Expenses, Business Manager may,
during the Term, purchase, without recourse to PC for the amount of the
purchase, the accounts receivable of PC arising during the previous month by
transferring the amount set forth below into the PC Account. The consideration
for the purchase shall be an amount equal to the Adjusted Gross Revenue recorded
each month (according to GAAP reflecting adjustments related to the bad debt
reserve). Business Manager shall be entitled to offset Office Expenses
reimbursement due to Business Manager under Section 5.2 above against the amount
payable for the accounts receivable. All collections in respect to such accounts
receivable purchased by Business Manager shall be received by Business Manager
as the agent of PC and shall be endorsed to Business Manager and deposited in a
bank account at a bank designated by Business Manager. To the extent PC comes
into possession of any payments in respect of such accounts receivable, PC shall
direct such payments to Business Manager for deposit in bank accounts designated
by Business Manager. Although it is the intention of the parties that Business
Manager purchase and thereby become the owner of the accounts receivable of PC,
in the event such purchase shall be ineffective for any reason, PC is
concurrently herewith granting to Business Manager a security interest in the
accounts so purchased, together with all proceeds thereof (collectively, the
"Collateral"), and further agrees not to pledge, assign, transfer or convey any
of the Collateral or any proceeds
17
therefrom, without the prior written consent of the Business Manager, except to
affiliates of the Business Manager. Concurrent with the execution of this
Agreement, PC shall execute a Security Agreement, similar in form and content as
that attached hereto as Exhibit B and incorporated herein by this reference in
order that the Business Manager may perfect its interest in the Collateral. PC
expressly agrees to execute and deliver any appropriate UCC-1 Financing
Statement and UCC-1 fixture filings, if so requested in writing by the Business
Manager.
Section 5.7 Disputes Regarding Fees. PC shall not be entitled to a
set-off or reduction in its Management Fees by reason of its belief that
Business Manager has failed to perform its obligations hereunder or otherwise.
ARTICLE VI. TERM AND TERMINATION
Section 6.1 Initial and Renewal Term. The Term of this Management
Services Agreement will be for an initial period of 25 years after the effective
date, and shall be automatically renewed for successive five-year periods
thereafter, provided that neither Business Manager nor PC shall have given
notice of termination of this Management Services Agreement at least 180 days
before the end of the initial term or any renewal term, or unless otherwise
terminated as provided in Section 6.2 of this Management Services Agreement.
Section 6.2 Termination.
(a) Termination By Business Manager. Subject to Section 6.2(c),
Business Manager may only terminate this Management Services Agreement either
without cause upon 90 days' written notice to PC, or upon the occurrence of any
one of the following events which shall be deemed to be "for cause":
(i) The dissolution of PC or the filing of a petition in
voluntary bankruptcy, an assignment for the benefit of
creditors, or other action taken voluntarily or
involuntarily under any State or federal statute for the
protection of debtors and such proceeding or case shall
continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a
period of 60 days;
(ii) PC materially defaults in the performance of any of its
material duties or obligations hereunder, and such
default continues for thirty (30) days after PC receives
notice of the default.
(b) Termination By PC. Subject to Section 6.2(c) PC may only
terminate this Management Services Agreement upon any of the following
occurrences which shall be deemed to be "for cause":
(i) The dissolution of Business Manager or the filing of a
petition in voluntary bankruptcy, an assignment for the
benefit of creditors, or other action taken voluntarily
or involuntarily under any State or federal statute for
the protection of debtors and such proceeding or case
shall continue
18
undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60
days;
(ii) In the event that Business Manager materially defaults
in the performance of any of its material obligations
hereunder and such default continues for 90 days after
Business Manager receives notice of the default.
(c) Termination by Agreement. In the event PC and Business Manager
shall mutually agree in writing, this Management Services Agreement may be
terminated on the date specified in such written agreement.
(d) Legislative, Regulatory or Administrative Change. In the event
there shall be a change in the Act, any federal or State statutes, case laws,
regulations or general instructions, the interpretation of any of the foregoing,
the adoption of new federal or State legislation, or a change in any third party
reimbursement system, any of which are reasonably likely to adversely affect the
manner in which either party may perform or be compensated for its services
under this Management Services Agreement or which shall make this Management
Services Agreement unlawful, the parties shall immediately enter into good faith
negotiations regarding a new service arrangement or basis for compensation for
the services furnished pursuant to this Management Services Agreement that
complies with the law, regulation, or policy and that approximates as closely as
possible the economic position of the parties prior to the change. If good faith
negotiations cannot resolve the matter, it shall be submitted to arbitration as
referenced in Section 7.6; provided however that in the event that the [State
Board of Dental Examiners] issues a final and non-appealable order revoking the
license of any Dentist on the grounds that PC's entering into and performing its
obligations under this Management Services Agreement is unlawful, PC may
terminate this Management Services Agreement upon thirty (30) days prior written
notice.
Section 6.3 Effects of Termination. Upon termination of this
Management Services Agreement, as hereinabove provided, neither party shall have
any further obligations hereunder except for (i) obligations accruing prior to
the date of termination, including, without limitation, payment of the
Management Fees and PC Expenses relating to services provided prior to the
termination of this Management Services Agreement and (ii) obligations,
promises, or covenants set forth herein that are expressly made to extend beyond
the Term, which provisions shall survive the expiration or termination of this
Management Services Agreement for any reason. In effectuating the provisions of
this Section 6.3, PC specifically acknowledges and agrees that Business Manager
shall continue to collect and receive on behalf of PC all cash collections from
accounts receivable in existence at the time this Management Services Agreement
is terminated, it being understood that such cash collections will represent, in
part, compensation to Business Manager for management services already rendered
and compensation on accounts receivable purchased by Business Manager.
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ARTICLE VII. MISCELLANEOUS
Section 7.1 Administrative Services Only. Nothing in this Management
Services Agreement is intended or shall be construed to allow Business Manager
to exercise control or direction over the manner or method by which PC and its
Practice Providers perform Dental Services or other professional health care
services. The rendition of all Dental Services, including, but not limited to,
the prescription or administration of drugs shall be the sole responsibility of
PC and its Dentists, and Business Manager shall not interfere in any manner or
to any extent therewith. Nothing contained in this Management Services Agreement
shall be construed to permit Business Manager to engage in the practice of
dentistry, it being the sole intention of the parties hereto that the services
to be rendered to PC by Business Manager are solely for the purpose of providing
nondental management and administrative services to PC so as to enable PC to
devote its full time and energies to the professional conduct of its dental
practice and provision of Dental Services to its patients and not to
administration, or practice management.
Section 7.2 Status of Contractor; Agency. It is expressly acknowledged
that the parties hereto are independent contractors and that this Management
Services Agreement is intended to constitute Business Manager as PC's agent.
Nothing herein shall be construed to create an employer/employee, partnership,
or joint venture relationship, or to allow either to exercise control or
direction over the manner or method by which the other performs the services
that are the subject matter of this Management Services Agreement or to permit
Business Manager to take any action that would constitute the practice of
dentistry; provided always that the services to be provided hereunder shall be
furnished in a manner consistent with the standards governing such services and
the provisions of this Management Services Agreement. Each party understands and
agrees that (i) the other will not be treated as an employee for federal tax
purposes, (ii) neither will withhold on behalf of the other any sums for income
tax, unemployment insurance, social security, or any other withholding pursuant
to any law or requirement of any governmental body or make available any of the
benefits afforded to its employees, (iii) all of such payments, withholdings,
and benefits, if any, are the sole responsibility of the party incurring the
liability, and (iv) each will indemnify and hold the other harmless from any and
all loss or liability arising with respect to such payments, withholdings, and
benefits, if any.
Section 7.3 Notices. Any notice, demand, or communication required,
permitted, or desired to be given hereunder shall be in writing and shall be
served on the parties at the following respective addresses:
PC: ▇▇▇▇▇▇▇ Dental Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
20
Business Manager: CASTLE DENTAL CENTERS OF CALIFORNIA, L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
or to such other address, or to the attention of such other person or officer,
as any party may by written notice designate. Any notice, demand, or
communication required, permitted, or desired to be given hereunder shall be
sent either (a) by hand delivery, in which case notice shall be deemed received
when actually delivered, (b) by prepaid certified or registered mail, return
receipt requested, in which case notice shall be deemed received five calendar
days after deposit, postage prepaid in the United States Mail, or (c) by a
nationally recognized overnight courier, in which case notice shall be deemed
received one business day after deposit with such courier.
Section 7.4 Governing Law. This Management Services Agreement shall be
governed by the laws of the State of California applicable to agreements to be
performed wholly within the State. California law was chosen by the parties
after negotiation to govern interpretation of this Management Services Agreement
because Los Angeles County, California is the seat of management for Business
Manager. The federal and State courts of Los Angeles County, California shall be
the exclusive venue for any litigation, special proceeding, or other proceeding
between the parties that may arise out of, or be brought in connection with or
by reason of, this Management Services Agreement.
Section 7.5 Assignment. Except as may be herein specifically provided
to the contrary, this Management Services Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective legal
representatives, successors, and assigns; provided, however, that PC may not
assign this Management Services Agreement without the prior written consent of
Business Manager, which consent may be withheld. The sale, transfer, pledge, or
assignment of any of the common shares held by any shareholder of PC or the
issuance by PC of common or other voting shares to any other person, or any
combination of such transactions within a period of one (1) year, such that the
existing shareholder in PC fails to maintain a majority of the voting interests
in PC shall be deemed an attempted assignment by PC, and shall be null and void
unless consented to in writing by Business Manager prior to any such transfer or
issuance. Any breach of this provision, whether or not void or voidable, shall
constitute a material breach of this Management Services Agreement, and in the
event of such breach, Business Manager may terminate this Management Services
Agreement upon twenty-four (24) hours notice to PC.
Section 7.6 Arbitration.
(a) General. The parties shall use good faith negotiation to resolve
any controversy, dispute or disagreement arising out of or relating to this
Management Services Agreement or the breach of this Management Services
Agreement. Any matter not resolved by negotiation shall be submitted to binding
arbitration and such arbitration shall be governed by the terms of this Section
7.6.
21
(b) Scope. Unless otherwise specifically provided herein, the
parties hereto agree that any claim, controversy, dispute or disagreement
between or among any of the parties hereto arising out of or relating to this
Management Services Agreement (other than claims involving any noncompetition
6or confidentiality covenant) shall be governed exclusively by the terms and
provisions of this Section 7.6; provided, however, that the terms and provisions
of this Section 7.6 shall not preclude any party hereto from seeking, or a court
of competent jurisdiction from granting, a temporary restraining order,
temporary injunction or other equitable relief for any breach of (i) any
noncompetition or confidentiality covenant herein or (ii) any duty, obligation,
covenant, representation or warranty, the breach of which may cause irreparable
harm or damage.
(c) Arbitrators. In the event of any claim, controversy, dispute or
disagreement between the parties hereto arising out of or relating to this
Management Services Agreement, and in the further event the parties are unable
to resolve such claim, controversy, dispute or disagreement within thirty (30)
days after notice is first delivered pursuant to Section 7.3, the parties agree
to select arbitrators to hear and decide all such claims under this Section 7.6.
Each party shall select one arbitrator. The two arbitrators so chosen shall then
select a third arbitrator who is experienced in the matter or action that is
subject to such arbitration. If such matter or action involves health-care
issues, then the third arbitrator shall have such qualifications as would
satisfy the requirements of the American Health Lawyers Association Alternative
Dispute Resolution Service. Each of the arbitrators chosen shall be impartial
and independent of all parties hereto. If either of the parties fails to select
an arbitrator within twenty days after the end of such thirty-day period, or if
the arbitrators chosen fail to select a third arbitrator within twenty days,
then any party may in writing request the judge of the United States District
Court for the Central District of California senior in term of service to
appoint the arbitrator or arbitrators and, subject to this Section 7.6, such
arbitrators shall hear all arbitration matters arising under this Section 7.6,
and, in default of such selection, may ask the American Arbitration Association.
(d) Applicable Rules.
(i) Each arbitration hearing shall be held at a place in Los
Angeles, California acceptable to a majority of the
arbitrators. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association to the extent such
rules do not conflict with the terms hereof. The
decision of a majority of the arbitrators shall be
reduced to writing and shall be binding on the parties.
Judgment upon the award(s) rendered by a majority of the
arbitrators may be entered and execution had in any
court of competent jurisdiction or application may be
made to such court for a judicial acceptance of the
award and an order of enforcement. The charges and
expenses of the arbitrators shall be shared equally by
the parties to the hearing.
(ii) The arbitration shall commence within thirty (30) days
after the arbitrators are selected in accordance with
the provisions of this Section 7.6. In fulfilling their
duties with respect to the matter in arbitration, the
arbitrators may consider such matters as, in the opinion
of the arbitrators,
22
are necessary or helpful to make a proper valuation. The
arbitrators may consult with and engage disinterested
third parties to advise the arbitrators. The arbitrators
shall not add any interest factor reflecting the time
value of money to the amount of any award granted under
any arbitration hereunder and shall not award any
punitive damages.
(iii) If any of the arbitrators selected hereunder should die,
resign or be unable to perform his or her duties
hereunder, the remaining arbitrators or such senior
judge (or such judge's successor) shall select a
replacement arbitrator. The procedure set forth in this
Section 7.6 for selecting the arbitrators shall be
followed from time to time as necessary.
(iv) As to the resolution of any claim, controversy, dispute
or disagreement that under the terms hereof is made
subject to arbitration, no lawsuit based on such
resolution shall be instituted by either of the parties
hereto, other than to compel arbitration proceedings or
enforce the award of a majority of the arbitrators.
(v) All privileges under California and federal law,
including attorney-client and work- product privileges,
shall be preserved and protected to the same extent that
such privileges would be protected in a federal court
proceeding applying California law.
Section 7.7 Waiver of Breach. The waiver by either party of a breach
or violation of any provision of this Management Services Agreement shall not
operate as, or be construed to constitute, a waiver of any subsequent breach of
the same or another provision hereof.
Section 7.8 Enforcement. In the event either party resorts to legal
action to enforce or interpret any provision of this Management Services
Agreement, the prevailing party shall be entitled to recover the costs and
expenses of such action so incurred, including, without limitation, reasonable
attorneys' fees.
Section 7.9 Gender and Number. Whenever the context of this Management
Services Agreement requires, the gender of all words herein shall include the
masculine, feminine, and neuter, and the number of all words herein shall
include the singular and plural.
Section 7.10 Additional Assurances. Except as may be herein
specifically provided to the contrary, the provisions of this Management
Services Agreement shall be self-operative and shall not require further
agreement by the parties; provided, however, at the request of either party, the
other party shall execute such additional instruments and take such additional
acts as are reasonable and as the requesting party may deem necessary to
effectuate this Management Services Agreement.
Section 7.11 Consents, Approvals, and Exercise of Discretion. Whenever
this Management Services Agreement requires any consent or approval to be given
by either party, or either party must or may exercise discretion, and except
where specifically set forth to the
23
contrary, the parties agree that such consent or approval shall not be
unreasonably withheld or delayed, and that such discretion shall be reasonably
exercised.
Section 7.12 Force Majeure. Neither party shall be liable or deemed to
be in default for any delay or failure in performance under this Management
Services Agreement or other interruption of service deemed to result, directly
or indirectly, from acts of God, civil or military authority, acts of public
enemy, war, accidents, fires, explosions, earthquakes, floods, failure of
transportation, strikes or other work interruptions by either party's employees,
or any other similar cause beyond the reasonable control of either party unless
such delay or failure in performance is expressly addressed elsewhere in this
Management Services Agreement.
Section 7.13 Severability. The parties hereto have negotiated and
prepared the terms of this Management Services Agreement in good faith with the
intent that each and every one of the terms, covenants and conditions herein be
binding upon and inure to the benefit of the respective parties. Accordingly, if
any one or more of the terms, provisions, promises, covenants or conditions of
this Management Services Agreement or the application thereof to any person or
circumstance shall be adjudged to any extent invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent jurisdiction or an
arbitration tribunal, such provision shall be as narrowly construed as possible,
and each and all of the remaining terms, provisions, promises, covenants and
conditions of this Management Services Agreement or their application to other
persons or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this
Management Services Agreement is in violation of applicable law, then the
parties agree to negotiate in good faith to amend the Management Services
Agreement, to the extent possible consistent with its purposes, to conform to
law.
Section 7.14 Divisions and Headings. The divisions of this Management
Services Agreement into articles, sections, and subsections and the use of
captions and headings in connection therewith is solely for convenience and
shall not affect in any way the meaning or interpretation of this Management
Services Agreement.
Section 7.15 Amendments and Management Services Agreement Execution.
This Management Services Agreement and amendments hereto shall be in writing and
executed in multiple copies on behalf of PC by its President, and on behalf of
Business Manager by any duly authorized officer thereof. Each multiple copy
shall be deemed an original, but all multiple copies together shall constitute
one and the same instrument.
Section 7.16 Entire Management Services Agreement. With respect to the
subject matter of this Management Services Agreement, this Management Services
Agreement and the Option Agreement entered into contemporaneously herewith
supersede all previous contracts and constitutes the entire agreement between
the parties. Neither party shall be entitled to benefits other than those
specified herein. No prior oral statements or contemporaneous negotiations or
understandings, except for the Budget, or prior written material not
specifically incorporated herein shall be of any force and effect, and no
changes in or additions to this Management Services Agreement shall be
recognized unless incorporated herein by amendment as provided herein, such
amendment(s) to become effective on the date stipulated in such amendment(s).
24
The parties specifically acknowledge that, in entering into and executing this
Management Services Agreement, except for the Budget, the parties rely solely
upon the representations and agreements contained in this Management Services
Agreement and no others.
Section 7.17 Waiver of Trial by Jury. With respect to any dispute
arising under or in connection with this Agreement or any related agreement, as
to which legal action nevertheless occurs, each party hereby irrevocably waives
all rights it may have to demand a jury trial. This waiver is knowingly,
intentionally and voluntarily made by the parties and each party acknowledges
that no person acting on behalf of the other party has made any representation
of fact to induce this waiver of trial by jury or in any way modified or
nullified its effect. The parties each further acknowledge that it has been
represented (or has had the opportunity to be represented) in the signing of
this Agreement and in the making of this waiver by independent legal counsel,
selected of its own free will, and that it has had the opportunity to discuss
this waiver with counsel. Each party further acknowledges that it has read and
understands the meaning and ramifications of this waiver provision.
IN WITNESS WHEREOF, PC and Business Manager have caused this Management
Services Agreement to be executed by their duly authorized representatives, all
as of the day and year first above written.
PC: ▇▇▇▇▇▇▇ DENTAL CORPORATION
By:
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., President
BUSINESS MANAGER: CASTLE DENTAL CENTERS OF CALIFORNIA, L.L.C.
By:
-------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chief Executive Officer
25
EXHIBIT A
PC'S AFFIDAVIT
AFFIDAVIT
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., declare:
I am a dentist, duly licensed in the State of California and I practice
through a professional corporation under the name ▇▇▇▇▇▇▇ Dental Corporation
(the "PC").
I have had substantial experience in the practice of the dentistry and
in managing and operating a dental office.
In the course of operating dental offices, I have acquired significant
knowledge as to the overhead costs incurred and gross receipts generated by
similar types of dental offices. Further, I am fully aware of the non-dental,
operational, accounting, billing, financing, management, personnel and similar
requirements of a dental office and the cost factors involved in providing such
management, personnel, accounting, billing, financing, operation and other
services and functions.
I have thoroughly reviewed the Management Services Agreement (the
"Agreement"), which is effective as of February 27, 2001, between PC and Castle
Dental Centers of California, L.L.C., a Delaware limited liability company (the
"Business Manager") concerning the duties, responsibilities and obligations
undertaken by the Business Manager in managing and operating all non-dental
aspects of the Center as contemplated by the Agreement.
I have reviewed the prior operating financial statements of the dental
offices at the following locations: (1) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇; (2) ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (3) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (4) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; and (5) ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and an operating budget and estimated income of
each of the foregoing dental offices, which, in my opinion, can reasonably be
expected from the operation of said offices.
In my opinion, based upon my experience, the Base Management Fee of
Thirty Percent (30%) of "Adjusted Gross Revenue" and the Performance Fee, if
any, to be charged by the Business Manager as contemplated by the Agreement,
will afford it a reasonable but not excessive return for its services rendered
and obligations incurred. In addition, PC's remaining percentage of "Adjusted
Gross Revenue" retained by PC, will provide reasonable earnings for the
performance of dental services.
I declare under penalty of perjury that the foregoing statement is true
and correct to the best of my knowledge and belief.
Executed at Los Angeles, California this ____ day of ________________,
2001.
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
STATE OF CALIFORNIA
________________, ss ________________, 2001
Then personally appeared the above-named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S. and
acknowledged the foregoing Affidavit to be his free act and deed.
[SEAL] --------------------------
Notary Public
My Commission Expires:
EXHIBIT B
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is effective as of the 27th day of February
2001, by ▇▇▇▇▇▇▇ Dental Corporation, a California professional corporation (the
"PC"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇") who is a duly licensed dentist in
the State of California to Castle Dental Centers of California, L.L.C., a
Delaware limited liability company (the "Business Manager") with reference to
the following facts:
WHEREAS, pursuant to a Management Services Agreement (the "Agreement"),
dated as of the date hereof, between PC and the Business Manager, as assurance
and collateral security for the payment of the Management Fees owed to the
Business Manager pursuant to the Agreement and any funds advanced by the
Business Manager to or on behalf of PC pursuant to the Agreement and for the
faithful and timely performance of all the covenants and conditions to be
performed by PC under the Agreement (collectively, the "Obligations") PC agreed
to pledge, grant, bargain, assign and transfer to the Business Manager a
security interest, pursuant to the Uniform Commercial Code of the State, in and
to all accounts receivable of patients of PC, together with all proceeds thereof
(collectively, the "Collateral");
WHEREAS, PC is obligated as a condition to the Business Manager's
performance under the Agreement to execute and deliver this Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. Grant of Security Interest. As and for collateral security for
payment or performance, as the case may be, by PC of the Obligations and any and
all amounts payable under this Security Agreement (collectively, the "Secured
Obligations"), PC hereby pledges, grants, bargains, assigns and transfers to the
Business Manager, and grants to the Business Manager a security interest in, the
Collateral. ▇▇. ▇▇▇▇▇▇▇ shall cause PC to perform fully and on a timely basis
all of PC's obligations under this Security Agreement. The Business Manager may
at its option file a financing statement (Form UCC-1) in order to perfect its
security interest hereunder.
2. Representations and Warranties. PC represents and warrants all
of the accounts receivable constituting a portion of the Collateral of PC
pledged to the Business Manager are and will be validly created obligations of
each of the obligors who incurred same for services actually rendered in the
ordinary course of business of PC. Further, PC represents and warrants that the
Collateral is not subject to any lien, pledge, charge, encumbrance or security
interest or right or option on the part of any third person.
3. Release of Security Interest. Upon the termination of the
Agreement and payment in full of the accrued Management Fees thereunder and any
and all other Secured Obligations, the Business Manager shall release its
security interest hereunder, and will deliver to PC any
1
property forming part of the Collateral delivered to the Business Manager and
then held by the Business Manager hereunder.
4. Realization of Collateral. The Business Manager shall have, with
respect to the Collateral, the rights and obligations of a secured party under
the Uniform Commercial Code as adopted in the state of California (the "State").
Such rights shall include, without limitation, the following:
A. The right, upon default, to have the Collateral, or any
part thereof, transferred to its own name or to the name of its nominee;
B. The right, upon default, to sell, assign or deliver as
much of the Collateral as is reasonably necessary to repay the defaulted
indebtedness (together with expenses attendant upon such sale and repayment), at
public or private sale, as the Business Manager may elect, either for cash or on
credit, without assumption of any credit risk and without demand or
advertisement (unless otherwise required by law).
C. PC hereby irrevocably authorizes the Business Manager to
sign and file financing statements naming PC as the debtor and the Business
Manager as the secured party, at any time with respect to any Collateral,
without the signature of PC. PC hereby irrevocably appoints the Business Manager
as PC's authorized agent and lawful attorney-in-fact, with full authority in the
place and stead of PC and in the name of PC, from time to time in the Business
Manager's discretion, to take any action and to execute any instrument which the
Business Manager may deem necessary or advisable to accomplish the purposes
hereof. The attorney-in-fact granted herein is coupled with an interest and is
irrevocable. Third parties and entities and persons not a party to this Security
Agreement are entitled to rely on this attorney-in-fact and an affidavit of the
Business Manager attesting thereto. The acceptance of this appointment by the
Business Manager shall not obligate it to perform any duty or covenant required
to be performed by PC under or by virtue of the Collateral. Notwithstanding the
foregoing power of attorney, PC shall at any time on the request of the Business
Manager, sign and deliver Financing Statements, security agreements or other
agreements with respect to any Collateral. Upon PC's failure to sign and deliver
said Financing Statements, security agreements or other agreements, the Business
Manager is authorized as the agent of PC to sign and deliver any such
instruments. Upon the request of the Business Manager, PC agrees to pay all
filing fees and to reimburse the Business Manager on demand for all costs and
expenses of any kind (including, without limitation, legal fees) incurred in any
way in connection with the Collateral.
5. Purchase of Collateral. At any private or public sale of the
Collateral or part thereof, the Business Manager may purchase and pay for the
same by cancellation of such portion of the Obligations, equal to the purchase
price and free of any right of redemption on the part of PC. The Business
Manager agrees, however, that PC shall have all rights, including rights of
notice, provided by the Uniform Commercial Code as adopted in the State. In any
case where notice is required, five days' notice shall be deemed reasonable
notice. In the event of any sale hereunder, the Business Manager shall apply the
proceeds in the order set forth below in Paragraph 6 hereof. The Business
Manager may have resort to the Collateral or any portion
2
thereof with no requirements on the part of the Business Manager to proceed
first against any other person or property.
6. Application of Collateral. Proceeds from the sale of the
Collateral or any part thereof shall be applied by the Business Manager in the
following order:
A. To the payment of the costs and expenses of collection
incurred by the Business Manager, including, without limitation, attorneys' fees
and all other reasonable expenses, liabilities and costs;
B. To the payment of the whole amount then owing and unpaid
for advances and/or Management Fees;
C. To the payment in full of all other Obligations of PC
under the Agreement; and
D. To the payment to PC of any surplus then remaining from
such proceeds.
7. Extension of Agreement. No renewal or extension of the
Agreement, no release or surrender of any Collateral given as security in
connection therewith, and no delay in enforcement thereof or in exercising any
right or power with respect thereto or hereunder shall affect the rights of the
Business Manager with respect to the Collateral or any part thereof.
8. Notices. Any notice to be given pursuant to this Agreement shall
be deemed effective the same day when such notice is given personally, or by
telegram, or electronic transmission to the President of the party to whom
notice is being given. Notice by mail shall be deemed effective three days after
deposit in the United States mail, and properly addressed with postage prepaid.
Notices to the Business Manager shall be given at:
Castle Dental Centers of California, L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
or other such addresses as may be delivered by the Business Manager to PC from
time to time in writing.
Notices to PC shall be given at:
▇▇▇▇▇▇▇ Dental Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
3
or other such addresses as may be delivered by PC to the Business Manager from
time to time in writing.
9. Waiver. The waiver by either party to this Security Agreement of
any one or more defaults, if any, on the part of the other party, shall not be
construed to operate as a waiver of the other or future defaults under this
Agreement. This Security Agreement may be amended or modified only by the
written consent of both parties.
10. Additional Documents. PC agrees that it will duly execute and
deliver to the Business Manager any additional documents which may be reasonably
necessary to give effect fully to the security interest granted to the Business
Manager hereunder, including, without limitation, a financing statement on Form
UCC-1.
11. Benefit. This Security Agreement shall inure to the benefit of
and shall be binding upon the respective heirs, successors and assigns of the
parties hereto.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State.
13. Defined Terms. Capitalized terms used in this Security Agreement
which are not defined herein but which are defined in the Agreement, shall have
the respective meanings ascribed therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first herein above written.
PC: Business Manager:
▇▇▇▇▇▇▇ Dental Corporation, Castle Dental Centers of California, L.L.C.,
a California professional corporation a Delaware limited liability company
By: ------------------------------- By: -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S. Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President Title: Chief Executive Officer
▇▇. ▇▇▇▇▇▇▇:
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
4