Form 10-Q AMERICAN SHARED HOSPITAL For: Jun 30
Exhibit 10.1
[*****] Text Omitted for Confidential Treatment. The redacted information has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
FIRST AMENDMENT TO
Lease AGREEMENT for a gamma knife unit (perfexion upgrade)
This First Amendment to the Lease Agreement for a Gamma Knife Unit (Perfexion Upgrade) (“First Amendment”) is made and entered into effective as of April 23, 2020 (the “First Amendment Effective Date”) between Tufts Medical Center, Inc. (“Medical Center”) and GK Financing, LLC (“GKF”).
R E C I T A L S:
A.Whereas, Medical Center and GKF entered into a Lease Agreement for a Gamma Knife Unit (Perfexion Upgrade) dated July 30, 2013 (“Agreement”); and
B.Whereas, by a letter dated January 15, 2020, Medical Center previously expressed its intent to terminate the Agreement effective April 22, 2020 (the “Termination Notice”), which is also the expiration date of the Term of the Agreement (the “Original Expiration Date”);
C.Whereas, Medical Center expects to obtain new gamma knife equipment from a third party vendor (the “Replacement Equipment”) as early as the summer of 2020 but no later than April 2021, and until such time as set forth below, Medical Center desires to continue to lease the Perfexion from GKF pursuant to the terms of the Agreement;
Now, Therefore, for and in consideration of the recitals above and the mutual covenants and conditions contained herein, Medical Center and GKF agree as follows:
1.Unless otherwise defined herein, capitalized terms used herein shall have the same meanings given to them in the Agreement.
2.The Termination Notice is hereby rescinded and the Term of the Agreement is hereby extended without interruption commencing from the Original Expiration Date until such time that the Replacement Equipment has been installed by Medical Center (the “Extension Period”) at which point the Agreement will terminate.
3.GKF shall de-install and remove the Perfexion on a mutually agreed upon date which shall be determined based upon collaboration with the Medical Center’s vendor and the third party security organizations. For the avoidance of doubt, pursuant to Section 4.4 of the Agreement, the parties are each responsible for their respective pro rata share of the costs and expenses related to third party security organizations, which third party security organization costs and expenses shall be allocated pro rata between the parties based on the time of the third party security organizations spent on deinstallation and removal of the Perfexion relative to the installation of the new gamma knife equipment. It is acknowledged that, in connection with the deinstallation and removal of the Perfexion
Exhibit 10.1
[*****] Text Omitted for Confidential Treatment. The redacted information has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
and the installation of the new gamma knife equipment, the parties may agree to utilize one or more of the same contractors for both deinstallation and installation (a “Shared Contractor”), subject however, to mutual agreement by the parties of the allocation of such Shared Contractor’s fees and costs between deinstallation and installation, which allocation is to be provided in advance in writing to the parties by the Shared Contractor. If the parties mutually agree in their respective sole discretion to use the Shared Contractor, then, (i) GKF shall be solely responsible for payment of the agreed-upon portion of Shared Contractor’s fees and costs allocated solely to the deinstallation and removal of the Perfexion, and (ii) Medical Center shall be solely responsible for payment of the agreed-upon portion of Shared Contractor’s fees and costs allocated solely to the installation of the new gamma knife equipment; provided that, in accordance with Section 4.4 of the Agreement, Medical Center shall remain responsible, at Medical Center's cost and expense, to provide GKF with Medical Center personnel (including Medical Center physicists) and services upon request and as reasonably required by GKF to oversee, supervise and assist with such de-installation and removal. In the event the parties do not agree on the use of a Shared Contractor, the parties will then have the right to use their own contractor.
4.Medical Center shall communicate expected timelines to GKF in writing not less than sixty (60) days prior to the designated de-installation date of the Perfexion, and the Parties shall cooperate to ensure a smooth transition of gamma knife equipment.
5.During the Extension Period, Medical Center shall pay to GKF the applicable per procedure payment as specified in Exhibit A to this First Amendment for the use of the Perfexion; provided that, during the Extension Period, there shall be no adjustments to the per procedure payment described in Sections 7.(a), 7.(b) and 7.(c) of the Agreement.
6.Full Force and Effect. Except as amended by this First Amendment, all of the terms and provisions of the Agreement shall remain unchanged and in full force and effect and, together with this First Amendment, represent the entire agreement of the parties with respect to the Perfexion and its use by Medical Center. Unless the context requires otherwise, all references in the Agreement to (i) the “Agreement” shall be deemed to mean the Agreement as amended by this First Amendment; and (ii) the “Term” shall be deemed to refer to the Term, as extended pursuant to this First Amendment. To the extent any of the terms of the Agreement conflict with the terms of this First Amendment, the terms and provisions of this First Amendment shall prevail and control. Nothing set forth in this First Amendment shall relieve either party from any or all of its obligations under the Agreement, including, without limitation, Medical Center’s obligation to pay per procedure payments through the Term, as extended hereby, and GKF’s obligations under Section 4 of the Agreement.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed under seal by their duly authorized representatives.
Exhibit 10.1
[*****] Text Omitted for Confidential Treatment. The redacted information has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
| GK FINANCING, LLC | TUFTS MEDICAL CENTER, INC. | |||||||
/s/ Craig K. Tagawa | /s/ Kristine M. Hanscom | |||||||
| By: Craig K. Tagawa | By: Kristine M. Hanscom | |||||||
| Its: Chief Executive Officer | Its: Sr. VP & Chief Financial Officer | |||||||
Exhibit 10.1
[*****] Text Omitted for Confidential Treatment. The redacted information has been excluded because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Exhibit A
PER PROCEDURE PAYMENTS
| Annual Procedures Performed During the Extension Period. | Non-Medicare Fee Per Procedure | Medicare Fee Per Procedure1 | ||||||
| [*****] | [*****] | [*****] | ||||||
| [*****] | [*****] | [*****] | ||||||
| [*****] | [*****] | [*****] | ||||||
| [*****] | [*****] | [*****] | ||||||
Notwithstanding anything to the contrary set forth herein, (a) for purposes of determining the per procedure payment, the number of annual procedures performed shall be reset to zero (0) on each anniversary of the First Amendment Effective Date; (b) for purposes of determining the applicable per procedure payment tier, non-Medicare and Medicare procedures will be grouped chronologically as they are performed; and (c) there shall be no retroactive adjustment of the per procedure payment irrespective of whether the number of procedures performed during any fiscal year reaches a lower per procedure payment level. For example, if during an annual measuring period, [*****] procedures are performed (of which [*****] are non-Medicare procedures and [*****] are Medicare procedures), then, (i) for each of the first [*****] procedures performed (irrespective of the number of non-Medicare and Medicare procedures comprising the first [*****] procedures), Medical Center would pay [*****] for each non-Medicare procedure and [*****] for each Medicare procedure; and (ii) for each of the next [*****] procedures performed (irrespective of the number of non-Medicare and Medicare procedures comprising the next [*****] procedures), Medical Center would pay [*****] for each non-Medicare procedure and [*****] for each Medicare procedure.
Exhibit 31.1
CERTIFICATION
I, Ray Stachowiak, as interim president and chief executive officer of American Shared Hospital Services, certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Shared Hospital Services;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| August 14, 2020 | |||||
| /s/ Ray Stachowiak | |||||
| Ray Stachowiak | |||||
| Interim President and CEO | |||||
Exhibit 31.2
CERTIFICATION
I, Craig K. Tagawa., as chief financial officer of American Shared Hospital Services, certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Shared Hospital Services;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| August 14, 2020 | |||||
| /s/ Craig K. Tagawa | |||||
| Craig K. Tagawa | |||||
| Chief Financial Officer | |||||
Exhibit 32.1
CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The certification set forth below is being submitted in connection with the Quarterly Report on Form 10-Q of American Shared Hospital Services for the quarterly period ended June 30, 2020 (the “Report”) for the purpose of complying with Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code.
Ray Stachowiak, the Interim President and Chief Executive Officer and Craig K. Tagawa, the Chief Financial Officer of American Shared Hospital Services, each certifies that, to the best of his knowledge:
1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of American Shared Hospital Services.
August 14, 2020
| /s/ Ray Stachowiak | |||||
| Ray Stachowiak | |||||
| Interim President and CEO | |||||
| /s/ Craig K. Tagawa | |||||
| Craig K. Tagawa | |||||
| Chief Financial Officer | |||||