1010-00003 · Arbor Health Technologies Inc · Contract Template Remediation

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FACILITY ACCESS AGREEMENT

DRAFT — Prepared for Discussion Purposes

By and Between

ARBOR HEALTH TECHNOLOGIES INC.

a Delaware corporation

("AHT" or "Facility Owner")

and

MERIDIAN DIAGNOSTICS LLC

a Connecticut limited liability company

("Meridian" or "User")

Dated as of [__], 2023

Prepared by:

Calderwood & Harkness LLP One Federal Street, 30th Floor Boston, Massachusetts 02110

Matter Number: 1010-00003

DRAFT — Subject to review and approval by Linden & Pryor LLP on behalf of Meridian Diagnostics LLC (Thomas Beckett, Partner, 750 Main Street, Suite 1400, Hartford, CT 06103).

This Agreement is intended to supersede and replace the Services Agreement dated March 1, 2021, between Arbor Health Technologies Inc. and Meridian Diagnostics LLC.

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RECITALS

WHEREAS, Arbor Health Technologies Inc. ("AHT") is a corporation duly organized and existing under the laws of the State of Delaware, with its principal offices located at 200 Concord Avenue, Suite 400, Cambridge, Massachusetts 02138, and is engaged in the business of operating twenty-three (23) outpatient clinics branded as "Arbor Health Clinics" across the Commonwealth of Massachusetts, the State of Connecticut, the State of Rhode Island, and the State of New Hampshire, providing primary care, specialty care, and ancillary services including diagnostic imaging to patients throughout the New England region;

WHEREAS, Meridian Diagnostics LLC ("Meridian") is a limited liability company duly organized and existing under the laws of the State of Connecticut, with its principal offices located at 88 Trumbull Street, Hartford, Connecticut 06103, Employer Identification Number 82-4019673, and is engaged in the business of providing mobile magnetic resonance imaging ("MRI") and advanced diagnostic imaging services to healthcare facilities and their patients throughout New England; Meridian is owned by Dr. Franklin Osei, a licensed radiologist, who holds a sixty percent (60%) membership interest and serves as Managing Member, and Gerald Pratt, who holds a forty percent (40%) membership interest;

WHEREAS, AHT and Meridian previously entered into a Services Agreement dated March 1, 2021 (the "Prior Agreement"), pursuant to which Meridian agreed to provide mobile MRI and advanced diagnostic imaging services at four (4) AHT clinic locations, and Meridian agreed to pay AHT a per-scan facility access fee of One Hundred Eighty-Five Dollars ($185.00) per scan performed at the AHT clinic locations;

WHEREAS, under the Prior Agreement, Meridian performed approximately four thousand two hundred (4,200) scans during fiscal year 2022, resulting in aggregate facility access fees of approximately Seven Hundred Seventy-Seven Thousand Dollars ($777,000) paid by Meridian to AHT during such fiscal year; during the same period, AHT physicians generated approximately Two Million Eight Hundred Thousand Dollars ($2,800,000) in patient referrals to Meridian for mobile MRI and advanced diagnostic imaging services;

WHEREAS, AHT undertook a comprehensive compliance self-assessment in 2022 and early 2023, including a review of its physician referral practices and financial arrangements with third-party service providers, and as a result of that self-assessment, AHT's General Counsel, Patricia Yamamoto, and AHT's Chief Compliance Officer, Derek Huang, identified the per-scan fee structure under the Prior Agreement as presenting potential compliance risks under applicable federal and state healthcare fraud and abuse laws;

WHEREAS, the parties desire to restructure the Prior Agreement to convert the per-scan facility access fee to a fixed monthly facility rental payment determined at fair market value, in order to conform the arrangement to the applicable requirements of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (the "AKS"), the Physician Self-Referral Law, 42 U.S.C. § 1395nn (the "Stark Law"), the space rental safe harbor set forth at 42 C.F.R. § 1001.952(b), the equipment rental safe harbor set forth at 42 C.F.R. § 1001.952(c), the Stark Law space rental exception set forth at 42 C.F.R. § 411.357(a), and the Stark Law equipment rental exception set forth at 42 C.F.R. § 411.357(b);

WHEREAS, the restructuring is intended to ensure that the rental payments under this Agreement are set in advance, are consistent with fair market value, are not determined in a manner that takes into account the volume or value of any referrals or other business generated between the parties, and are commercially reasonable even in the absence of any referrals or other business between the parties; and

WHEREAS, each party has had the opportunity to consult with its own legal counsel regarding the terms and conditions of this Agreement, and each party enters into this Agreement voluntarily and with full knowledge of its rights and obligations hereunder;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE I — DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Article I shall have the meanings assigned to them elsewhere in this Agreement.

Section 1.1 — "Affiliate" shall mean, with respect to any party, any entity directly or indirectly controlling, controlled by, or under common control with such party. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, an entity shall be deemed to control another entity if it owns, directly or indirectly, fifty percent (50%) or more of the voting equity interests of such other entity.

Section 1.2 — "AKS" shall mean the federal Anti-Kickback Statute, codified at 42 U.S.C. § 1320a-7b(b), together with all implementing regulations, including without limitation the safe harbor regulations set forth at 42 C.F.R. § 1001.952, as the same may be amended, supplemented, or replaced from time to time.

Section 1.3 — "Annual FMV Recertification" shall mean the process described in Section 4.3 of this Agreement for the annual recertification of the fair market value of the Fixed Monthly Rental by an Independent Appraiser.

Section 1.4 — "Clinic Locations" or "Designated Premises" shall mean the four (4) AHT clinic locations identified and described in Exhibit A attached hereto at which Meridian is authorized to provide the Services in accordance with this Agreement, including the specified parking and docking areas for Meridian's mobile MRI unit, patient waiting and preparation areas, and utility access points, each as more particularly described in Exhibit A.

Section 1.5 — "Commencement Date" shall have the meaning set forth in Section 3.1 of this Agreement.

Section 1.6 — "Effective Date" shall mean the date first written above on the cover page of this Agreement.

Section 1.7 — "Equipment" shall mean the mobile MRI and advanced diagnostic imaging equipment described in Exhibit B attached hereto, which is owned or leased by Meridian and which Meridian brings to the Designated Premises for the purpose of providing the Services. Equipment shall include all ancillary equipment, coils, power systems, patient monitoring equipment, and other accessories described in Exhibit B.

Section 1.8 — "Fair Market Value" or "FMV" shall mean the value in arm's-length transactions, consistent with the general market value of the rental of space or equipment (as applicable), not taking into account the volume or value of any referrals or other business generated between the parties, as determined by an Independent Appraiser in accordance with Section 4.3 of this Agreement. For purposes of this definition, "general market value" means the price that an asset or service would bring as the result of bona fide bargaining between well-informed buyers and sellers who are not otherwise in a position to generate business for the other party at the time of the agreement, consistent with the meaning assigned to such term under the Stark Law regulations at 42 C.F.R. § 411.351.

Section 1.9 — "Federal Healthcare Program" shall have the meaning set forth in 42 U.S.C. § 1320a-7b(f), and shall include, without limitation, the Medicare program under Title XVIII of the Social Security Act, the Medicaid program under Title XIX of the Social Security Act, the TRICARE program, and any other plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government.

Section 1.10 — "Fixed Monthly Rental" shall mean the fixed monthly amount payable by Meridian to AHT for access to and use of the Designated Premises, as set forth in Section 4.1 of this Agreement and Exhibit C attached hereto.

Section 1.11 — "Independent Appraiser" shall mean a qualified independent valuation professional engaged pursuant to Section 4.3 of this Agreement to determine the Fair Market Value of the Fixed Monthly Rental. The initial Independent Appraiser shall be Northbridge Valuation Advisors LLC, located at 1600 Market Street, Suite 2800, Philadelphia, Pennsylvania 19103 (Sandra Kilpatrick, Managing Director).

Section 1.12 — "OIG" shall mean the Office of Inspector General of the United States Department of Health and Human Services.

Section 1.13 — "Permitted Use" shall have the meaning set forth in Section 5.2 of this Agreement.

Section 1.14 — "Prior Agreement" shall mean the Services Agreement dated March 1, 2021, by and between AHT and Meridian, as such agreement may have been amended, modified, or supplemented prior to the Effective Date.

Section 1.15 — "Referral" shall mean the referral of a patient by an AHT physician, employed provider, or other healthcare professional associated with AHT for services performed by Meridian, including but not limited to mobile MRI scans and other advanced diagnostic imaging procedures.

Section 1.16 — "Services" shall mean the mobile MRI and advanced diagnostic imaging services provided by Meridian using the Equipment at the Designated Premises in accordance with this Agreement.

Section 1.17 — "Stark Law" shall mean the Physician Self-Referral Law, codified at 42 U.S.C. § 1395nn, and implementing regulations at 42 C.F.R. § 411.350 et seq., as the same may be amended, supplemented, or replaced from time to time.

Section 1.18 — "Term" shall mean the period described in Article III of this Agreement, including the Initial Term and any Renewal Term(s).

Section 1.19 — "Use Schedule" shall mean the schedule of dates and times during which Meridian is permitted to access and use the Designated Premises for the provision of the Services, as set forth in Exhibit D attached hereto and as may be updated in accordance with Section 5.3 of this Agreement.

ARTICLE II — TERMINATION OF PRIOR AGREEMENT; SUPERSESSION

Section 2.1 — Termination of Prior Agreement. Upon the occurrence of the Commencement Date, the Prior Agreement dated March 1, 2021, by and between AHT and Meridian, shall be deemed terminated and superseded in its entirety by this Agreement. From and after the Commencement Date, neither party shall have any rights or obligations under the Prior Agreement, except as expressly provided in this Article II. The parties acknowledge that the termination and supersession of the Prior Agreement is an integral part of the compliance restructuring contemplated by this Agreement.

Section 2.2 — Cessation of Per-Scan Fees. All per-scan facility access fees of One Hundred Eighty-Five Dollars ($185.00) per scan payable by Meridian to AHT under the Prior Agreement shall cease to accrue as of the close of business on the day immediately preceding the Commencement Date. From and after the Commencement Date, no further per-scan fees shall accrue or be payable under the Prior Agreement, and the sole compensation payable by Meridian to AHT for access to and use of the Designated Premises shall be the Fixed Monthly Rental as set forth in Article IV and Exhibit C of this Agreement.

Section 2.3 — Payment of Outstanding Per-Scan Fees. Meridian shall pay to AHT any outstanding per-scan facility access fees that accrued under the Prior Agreement through and including the day immediately preceding the Commencement Date. Such payment shall be due and payable within thirty (30) days of the Commencement Date. Within ten (10) business days of the Commencement Date, AHT shall provide Meridian with a final reconciliation statement setting forth the total number of scans performed and the aggregate per-scan fees accrued under the Prior Agreement through the day immediately preceding the Commencement Date. Meridian shall have fifteen (15) business days following receipt of such reconciliation statement to review and raise any objections; if no objections are raised within such period, the reconciliation statement shall be deemed accepted.

Section 2.4 — Surviving Obligations. Neither party shall have any further obligations under the Prior Agreement from and after the Commencement Date, except for (a) Meridian's obligation to pay any outstanding per-scan fees as provided in Section 2.3 above, (b) any indemnification obligations that arose under the Prior Agreement prior to the Commencement Date with respect to events occurring prior to the Commencement Date, and (c) any confidentiality obligations under the Prior Agreement that, by their terms, survive the termination of the Prior Agreement. For the avoidance of doubt, no provision of the Prior Agreement shall survive the Commencement Date except as expressly set forth in this Section 2.4.

ARTICLE III — TERM AND RENEWAL

Section 3.1 — Initial Term. This Agreement shall have an initial term of three (3) years (the "Initial Term"), commencing on the Commencement Date. The Commencement Date shall be the date that is the first day of the calendar month immediately following the later of (a) the Effective Date and (b) the date on which AHT receives the initial Fair Market Value opinion from the Independent Appraiser (Northbridge Valuation Advisors LLC) as contemplated by Section 4.1 and Exhibit C. The Commencement Date shall be inserted into this Agreement upon execution by both parties. Unless earlier terminated in accordance with the provisions of this Article III, the Initial Term shall expire at 11:59 p.m. Eastern Time on the third anniversary of the Commencement Date.

Section 3.2 — Renewal. Following the expiration of the Initial Term, this Agreement may be renewed for successive periods of one (1) year each (each, a "Renewal Term"), upon the mutual written agreement of the parties. Any such renewal must be executed by both parties not less than ninety (90) days prior to the expiration of the then-current Term (whether the Initial Term or a Renewal Term). Each renewal shall be subject to the completion of the Annual FMV Recertification described in Section 4.3 of this Agreement, and the Fixed Monthly Rental for any Renewal Term shall be set at the Fair Market Value as determined by the most recent Annual FMV Recertification. No renewal shall be effective unless and until both parties have executed a written renewal agreement or amendment, and the Annual FMV Recertification has been completed in accordance with Section 4.3.

Section 3.3 — No Holdover. Meridian shall not have the right to use, occupy, or access the Designated Premises or any other AHT facilities following the expiration or earlier termination of this Agreement without a duly executed renewal or extension in writing. Any unauthorized use of the Designated Premises by Meridian following the expiration or earlier termination of this Agreement shall not create a new term, holdover tenancy, tenancy at will, or tenancy at sufferance, and AHT shall be entitled to exercise all rights and remedies available at law or in equity to regain possession of the Designated Premises, including without limitation the right to seek injunctive relief. During any period of unauthorized holdover use, Meridian shall be obligated to pay AHT a use and occupancy charge equal to one hundred fifty percent (150%) of the then-applicable Fixed Monthly Rental, prorated on a daily basis, in addition to any other damages to which AHT may be entitled.

Section 3.4 — Termination for Cause. Either party may terminate this Agreement upon sixty (60) days' prior written notice to the other party if the other party commits a material breach of any representation, warranty, covenant, or obligation under this Agreement, and such breach remains uncured after the expiration of a thirty (30)-day cure period following receipt of written notice from the non-breaching party specifying the nature and extent of the breach in reasonable detail. If the nature of the breach is such that it cannot reasonably be cured within thirty (30) days, the breaching party shall not be deemed in default if it commences cure within such thirty (30)-day period and thereafter diligently pursues cure to completion within a reasonable period not to exceed an additional thirty (30) days.

Section 3.5 — Termination for Compliance Reasons. Either party may terminate this Agreement immediately upon written notice to the other party if the terminating party reasonably determines, in good faith and after consultation with legal counsel, that the continuation of the arrangement contemplated by this Agreement would violate, or would create a material risk of violating, the AKS, the Stark Law, or any other applicable federal, state, or local law or regulation governing healthcare fraud and abuse, physician self-referrals, or anti-kickback prohibitions, including without limitation the Connecticut referral fee prohibition set forth in Conn. Gen. Stat. § 20-7a(d) and the Massachusetts anti-kickback law set forth in M.G.L. c. 175H, § 3. A party exercising its rights under this Section 3.5 shall provide the other party with a written statement setting forth, in reasonable detail, the basis for its determination, subject to the protections of the attorney-client privilege and work-product doctrine.

Section 3.6 — Termination for Exclusion or Debarment. Either party may terminate this Agreement immediately upon written notice to the other party if the other party, or any owner, officer, director, manager, or key employee of the other party, is excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or is convicted of a criminal offense related to the provision of healthcare items or services, the neglect or abuse of a patient, fraud, theft, embezzlement, financial misconduct, or obstruction of a healthcare investigation. The parties acknowledge that continued performance under this Agreement with an excluded or debarred party or individual could expose the non-excluded party to significant legal, financial, and regulatory liability, and that immediate termination in such circumstances is therefore appropriate and necessary. Each party shall promptly notify the other party, in writing, upon learning that any such exclusion, debarment, suspension, or conviction has occurred or is reasonably anticipated.

ARTICLE IV — RENTAL PAYMENTS AND FAIR MARKET VALUE

Section 4.1 — Fixed Monthly Rental. In consideration of AHT's grant to Meridian of the right to access and use the Designated Premises in accordance with the Use Schedule, Meridian shall pay to AHT a Fixed Monthly Rental in the amount of $[__] per month (the "Fixed Monthly Rental"). The Fixed Monthly Rental for the initial year of the Initial Term is set forth in Exhibit C attached hereto, as determined by the Independent Appraiser, Northbridge Valuation Advisors LLC (Sandra Kilpatrick, Managing Director), 1600 Market Street, Suite 2800, Philadelphia, Pennsylvania 19103, which has been retained by AHT to provide an independent Fair Market Value opinion for this facility access arrangement.

The parties acknowledge and agree that the Fixed Monthly Rental replaces the prior per-scan fee structure of One Hundred Eighty-Five Dollars ($185.00) per scan that was in effect under the Prior Agreement. The Fixed Monthly Rental is intentionally structured as a fixed amount that does not vary with, and is not determined by reference to, the volume or value of referrals, services rendered, scans performed, patients treated, revenues generated, or any other business generated between the parties, their Affiliates, or their respective physicians, employees, or agents. The Fixed Monthly Rental shall remain in effect for each year of the Term, subject to adjustment only through the Annual FMV Recertification process set forth in Section 4.3 below.

Section 4.2 — Payment Terms. The Fixed Monthly Rental shall be due and payable on the first business day of each calendar month during the Term. If the Commencement Date falls on a day other than the first day of a calendar month, the Fixed Monthly Rental for the partial month in which the Commencement Date occurs shall be prorated on a per diem basis (based on the number of days remaining in such month divided by the total number of days in such month) and shall be due and payable on the Commencement Date.

All payments of the Fixed Monthly Rental shall be made by wire transfer or Automated Clearing House ("ACH") transfer to the bank account designated by AHT in writing. AHT shall provide Meridian with its wire transfer and ACH instructions in writing prior to the Commencement Date, and shall provide Meridian with not less than thirty (30) days' prior written notice of any change in such instructions.

Any payment of the Fixed Monthly Rental not received by AHT within ten (10) business days of the applicable due date shall bear interest from the due date until paid at a rate equal to the lesser of (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or (b) the maximum rate of interest permitted by applicable law. The accrual of interest on late payments shall not constitute a waiver of AHT's right to declare a material breach of this Agreement pursuant to Section 3.4 in the event of repeated or prolonged payment defaults.

Section 4.3 — Annual FMV Recertification.

(a) Timing and Engagement of Appraiser. Not less than sixty (60) days prior to each anniversary of the Commencement Date (whether during the Initial Term or any Renewal Term), AHT shall cause an Independent Appraiser to prepare an updated Fair Market Value opinion for the Fixed Monthly Rental. The initial Independent Appraiser shall be Northbridge Valuation Advisors LLC, or such other qualified independent appraiser as AHT may designate from time to time with reasonable advance notice to Meridian. The Independent Appraiser shall be an individual or firm with demonstrated expertise in the valuation of healthcare-related real estate and equipment rental arrangements, and shall not have a financial interest in, or affiliation with, either party that would compromise its independence or objectivity.

(b) Methodology. The FMV opinion shall be based on comparable rental data for similar premises and similar equipment access arrangements in the applicable geographic markets in which the Designated Premises are located, taking into account factors such as the size and condition of the Designated Premises, the frequency and duration of Meridian's access under the Use Schedule, the availability of comparable space in the relevant market, and the nature and scope of the utility and infrastructure access provided by AHT. The FMV opinion shall not take into account the volume or value of referrals or other business generated between the parties, and shall be prepared in accordance with applicable professional valuation standards, including the Uniform Standards of Professional Appraisal Practice (USPAP), to the extent applicable.

(c) Adjustment of Fixed Monthly Rental. If the updated FMV opinion results in a Fair Market Value that differs from the then-current Fixed Monthly Rental, the Fixed Monthly Rental shall be adjusted to the amount set forth in the updated FMV opinion, effective as of the applicable anniversary date of the Commencement Date. The parties shall execute an amendment or addendum to this Agreement, in substantially the form attached hereto as Exhibit F, reflecting the adjusted Fixed Monthly Rental amount and confirming that all other terms and conditions of this Agreement remain in full force and effect.

(d) Dispute Resolution. If the parties cannot agree on the adjusted Fixed Monthly Rental within thirty (30) days following delivery of the updated FMV opinion to both parties, either party may terminate this Agreement upon sixty (60) days' prior written notice to the other party. During such sixty (60)-day notice period, the Fixed Monthly Rental shall continue at the rate in effect immediately prior to delivery of the updated FMV opinion. In the alternative, either party may request that a second Independent Appraiser, mutually selected by the parties, prepare an additional FMV opinion at the requesting party's expense, provided that such request is made within fifteen (15) days following delivery of the initial updated FMV opinion; in such case, the Fixed Monthly Rental shall be adjusted to the average of the two FMV opinions, unless the parties otherwise agree in writing.

(e) Retention of FMV Opinions. Each FMV opinion prepared pursuant to this Section 4.3, together with all supporting documentation and work papers, shall be retained by AHT for a period of not less than seven (7) years from the date of such opinion, and shall be made available to Meridian for inspection and copying upon reasonable request. Meridian shall also retain a copy of each FMV opinion for not less than seven (7) years from the date of such opinion.

Section 4.4 — No Additional Fees or Remuneration. Except for the Fixed Monthly Rental as set forth in this Article IV, neither party shall pay, offer, solicit, or receive any fee, payment, discount, rebate, refund, remuneration, or other consideration of any kind, whether in cash or in kind, directly or indirectly, in connection with this Agreement, the use of the Designated Premises, the provision of the Services, or the referral of patients between the parties. For the avoidance of doubt, no per-scan fee, per-procedure fee, percentage-of-revenue fee, per-patient fee, or other variable fee or payment tied to the volume or value of services rendered, scans performed, patients treated, or referrals made shall apply under this Agreement. This prohibition extends to any fee, payment, or consideration that is not set forth in this Agreement and Exhibit C hereto, whether characterized as a management fee, administrative fee, marketing fee, or otherwise.

Section 4.5 — Commercially Reasonable. The parties acknowledge and agree that the Fixed Monthly Rental and the other terms and conditions of this Agreement are commercially reasonable, reflect Fair Market Value as determined by the Independent Appraiser, would be entered into by like parties in an arm's-length transaction under comparable circumstances, and are not conditioned upon or intended to induce, reward, or compensate, directly or indirectly, the referral of patients, the generation of business, or the ordering of any item or service reimbursable by any Federal Healthcare Program or any other payor. The parties further acknowledge that the arrangement contemplated by this Agreement would be commercially reasonable even in the absence of any referrals or other business between the parties.

ARTICLE V — DESIGNATED PREMISES AND PERMITTED USE

Section 5.1 — Designated Premises. Subject to the terms and conditions of this Agreement, AHT hereby grants to Meridian the non-exclusive right (unless designated as exclusive in the Use Schedule) to access and use the designated areas at the four (4) AHT clinic locations identified and described in Exhibit A attached hereto (each, a "Clinic Location" and collectively, the "Designated Premises") solely for the Permitted Use described in Section 5.2 and in accordance with the Use Schedule set forth in Exhibit D attached hereto. AHT operates twenty-three (23) outpatient clinics across Massachusetts, Connecticut, Rhode Island, and New Hampshire; the four (4) Designated Premises represent the specific Clinic Locations at which Meridian has been authorized to provide Services, as identified in Exhibit A. Specific addresses and descriptions of the Designated Premises are set forth in Exhibit A, subject to confirmation by the parties prior to execution.

The Designated Premises at each Clinic Location shall include, as applicable and as more particularly described in Exhibit A: (a) specified parking and docking areas for Meridian's mobile MRI unit, of sufficient size and configuration to accommodate the safe positioning and operation of the mobile MRI unit; (b) patient waiting and preparation areas designated for use by Meridian's patients during the times specified in the Use Schedule; (c) utility access points, including electrical power connections, water supply (if applicable), and any other utility connections necessary for the safe and effective operation of Meridian's Equipment; and (d) reasonable ingress and egress to and from the parking and docking areas, patient areas, and utility access points.

Section 5.2 — Permitted Use. The Designated Premises shall be used by Meridian solely for the purpose of providing mobile MRI and advanced diagnostic imaging services using Meridian's Equipment, and for no other purpose (the "Permitted Use"). Without limiting the generality of the foregoing:

(a) Meridian shall not use the Designated Premises for any purpose that violates applicable law, including without limitation federal and state healthcare fraud and abuse laws, the AKS, the Stark Law, HIPAA, and any applicable state licensing and accreditation requirements.

(b) Meridian shall not sublease, sublicense, assign, or otherwise permit any third party to use, occupy, or access the Designated Premises or any portion thereof, without the prior written consent of AHT, which consent may be withheld in AHT's sole and absolute discretion.

(c) Meridian shall not use the Designated Premises in any manner that would interfere with AHT's operations, patient care activities, or the use of adjacent or shared spaces by AHT or other authorized users of the Clinic Locations.

(d) Meridian shall comply with all reasonable rules, regulations, and policies of AHT applicable to the Clinic Locations, including safety protocols, infection control policies, visitor and vendor access policies, and parking regulations, as communicated to Meridian in writing from time to time.

Section 5.3 — Use Schedule. Meridian's access to and use of the Designated Premises shall be limited to the specific days of the week and hours of the day set forth in the Use Schedule attached hereto as Exhibit D. The Use Schedule shall be set in advance for each calendar year and shall not be modified more frequently than annually, except by the mutual written agreement of both parties. The parties shall use commercially reasonable efforts to finalize the Use Schedule for each calendar year not later than November 1 of the preceding calendar year.

The Use Schedule shall specify, for each Clinic Location: (i) the day(s) of the week on which Meridian may access and use the Designated Premises; (ii) the hours of the day during which Meridian may access and use the Designated Premises (start time and end time); and (iii) whether Meridian's use during such periods is exclusive (meaning Meridian has sole access to the Designated Premises during such periods) or non-exclusive or shared (meaning AHT or other authorized parties may also access and use portions of the Designated Premises during such periods). The Use Schedule shall be reasonable and consistent with the operational needs of AHT's Clinic Locations and Meridian's provision of the Services.

Section 5.4 — Condition of Premises. AHT shall deliver the Designated Premises to Meridian in good condition and in a state of repair suitable for the Permitted Use as of the Commencement Date. Throughout the Term, AHT shall be responsible for the maintenance and repair of the structural components of the Designated Premises, including the roof, exterior walls, foundation, and building systems (including HVAC, electrical, plumbing, and fire suppression systems), to the extent that such components are part of the Clinic Location buildings. AHT shall also be responsible for ensuring that the utility access points at the Designated Premises are maintained in good working order and are capable of providing adequate electrical power and other utilities necessary for the safe operation of Meridian's Equipment, in accordance with the specifications set forth in Exhibit B.

Meridian shall be responsible for maintaining its Equipment in safe and proper working order at all times, and for any damage to the Designated Premises, the Clinic Location buildings, or any AHT property caused by Meridian's use of the Designated Premises, by the installation, operation, or removal of Meridian's Equipment, or by the acts or omissions of Meridian's employees, agents, contractors, or invitees. Upon the expiration or earlier termination of this Agreement, Meridian shall remove all of its Equipment from the Designated Premises and shall restore the Designated Premises to their condition as of the Commencement Date, ordinary wear and tear excepted.

Section 5.5 — Compliance with Laws. All use of the Designated Premises by Meridian shall comply with all applicable federal, state, and local laws, regulations, codes, ordinances, and orders, including without limitation: (a) healthcare licensure and accreditation requirements applicable to the provision of diagnostic imaging services; (b) zoning and land use regulations applicable to the Clinic Locations; (c) building codes, fire codes, and safety regulations; (d) environmental laws and regulations, including those governing the use, storage, and disposal of hazardous materials; (e) the AKS, the Stark Law, and all other applicable healthcare fraud and abuse laws; and (f) HIPAA and all other applicable privacy and security laws. Meridian shall obtain and maintain, at its sole cost and expense, all licenses, permits, certifications, and accreditations required for the provision of the Services at the Designated Premises.

ARTICLE VI — EQUIPMENT

Section 6.1 — Meridian Equipment. Meridian shall provide and maintain, at its sole cost and expense, all Equipment necessary to perform the Services at the Designated Premises, as described in Exhibit B attached hereto. All Equipment brought by Meridian to the Designated Premises shall be owned or leased by Meridian, and AHT shall have no ownership interest in, or right, title, or claim to, any of Meridian's Equipment. Meridian shall be solely responsible for the transportation, installation, calibration, maintenance, repair, and removal of its Equipment at each Clinic Location. Meridian represents and warrants that all Equipment used at the Designated Premises shall be maintained in compliance with all applicable federal, state, and local laws, regulations, and industry standards, including without limitation the requirements of the U.S. Food and Drug Administration ("FDA"), applicable accreditation standards (such as those of the American College of Radiology), and manufacturer specifications.

Section 6.2 — AHT Equipment. To the extent that Meridian uses, or proposes to use, any equipment owned or leased by AHT at or in connection with the Designated Premises (including without limitation any patient monitoring equipment, computer systems, or network infrastructure), such use shall be governed by a separate written equipment rental agreement between the parties. Any such equipment rental agreement shall be structured to conform to the requirements of the Stark Law equipment rental exception set forth at 42 C.F.R. § 411.357(b) and the AKS equipment rental safe harbor set forth at 42 C.F.R. § 1001.952(c), including without limitation the requirements that (a) the rental agreement is set out in writing and signed by the parties, (b) the agreement specifies the equipment covered by the agreement, (c) the equipment rental is set in advance, is consistent with Fair Market Value in arm's-length transactions, and does not take into account the volume or value of any referrals or other business generated between the parties, and (d) the agreement would be commercially reasonable even if no referrals were made between the parties. Meridian shall not use any AHT equipment without a duly executed equipment rental agreement meeting the foregoing requirements.

Section 6.3 — Equipment Insurance. Meridian shall maintain, at its sole cost and expense, throughout the Term of this Agreement, insurance coverage for all Equipment brought to the Designated Premises, including the following minimum coverages:

(a) Commercial General Liability Insurance. Commercial general liability insurance covering bodily injury, personal injury, and property damage arising out of or related to Meridian's use of the Designated Premises and the operation of Meridian's Equipment, with minimum limits of not less than $[__] per occurrence and $[__] in the aggregate.

(b) Equipment and Property Insurance. "All-risk" or special form property insurance covering Meridian's Equipment against loss, damage, or destruction, in an amount not less than the full replacement cost of such Equipment.

(c) Additional Insured Requirement. AHT shall be named as an additional insured on Meridian's commercial general liability insurance policy. Meridian shall provide AHT with certificates of insurance evidencing the required coverages and the additional insured endorsement within ten (10) business days of the Commencement Date and annually thereafter upon renewal of such policies.

Meridian's insurance obligations under this Section 6.3 are in addition to, and not in limitation of, Meridian's insurance obligations under Article IX of this Agreement.

ARTICLE VII — COMPLIANCE REPRESENTATIONS AND COVENANTS

Section 7.1 — AKS and Stark Compliance Intent. The parties acknowledge and agree that this Agreement is intended to comply with, and to satisfy all applicable requirements of, the following federal healthcare regulatory provisions:

(a) The AKS space rental safe harbor, as set forth at 42 C.F.R. § 1001.952(b);

(b) The AKS equipment rental safe harbor, as set forth at 42 C.F.R. § 1001.952(c), to the extent applicable to any equipment use contemplated by this Agreement or any separate equipment rental agreement executed pursuant to Section 6.2;

(d) The Stark Law equipment rental exception, as set forth at 42 C.F.R. § 411.357(b), to the extent applicable to any equipment use contemplated by this Agreement or any separate equipment rental agreement executed pursuant to Section 6.2; and

(e) Any other applicable federal or state safe harbor, exception, or regulatory provision governing rental or lease arrangements in the healthcare context.

The parties agree to interpret and perform this Agreement in a manner consistent with the foregoing provisions at all times. To the extent that any provision of this Agreement is found to be inconsistent with, or fails to satisfy the requirements of, any of the foregoing safe harbors or exceptions, the parties shall negotiate in good faith and use commercially reasonable efforts to amend this Agreement to achieve compliance, as further provided in Section 15.3 of this Agreement.

Section 7.2 — No Referral Inducement. Neither the Fixed Monthly Rental nor any other term, condition, provision, or obligation of this Agreement is intended to, or shall be construed to, induce, reward, compensate, or pay for, directly or indirectly, the referral of patients, the generation of business, the ordering of any item or service, or the recommending or arranging for the ordering of any item or service, that is reimbursable, in whole or in part, by any Federal Healthcare Program or any other third-party payor. The parties expressly disclaim any intent to induce or reward referrals through the arrangement contemplated by this Agreement, and each party agrees that it shall not, directly or indirectly, offer, pay, solicit, or receive any remuneration (as defined in the AKS) in connection with this Agreement, except as expressly authorized herein and consistent with applicable law.

Section 7.3 — Rental Not Based on Referrals. The Fixed Monthly Rental has been determined, and shall at all times be maintained, in a manner that does not take into account the volume or value of any referrals or other business generated between the parties, their respective Affiliates, or their respective physicians, employed providers, independent contractors, employees, or agents. The parties acknowledge that the restructuring of the prior per-scan fee arrangement into a fixed monthly rental was undertaken specifically to eliminate any nexus between the compensation paid under this Agreement and the volume or value of referrals or other business between the parties.

Section 7.4 — Independence of Medical Judgment. Nothing in this Agreement shall be construed to limit, restrict, interfere with, or otherwise affect the independent medical judgment of any AHT physician, employed provider, or independent contractor physician, or any Meridian physician (including Dr. Franklin Osei), in making referral decisions, ordering diagnostic tests or imaging studies, recommending treatments, or otherwise exercising professional clinical judgment. All referral decisions by AHT physicians and other providers shall be based solely on the clinical needs of the patient, taking into account the physician's professional assessment of the most appropriate diagnostic or treatment modality, and shall not be influenced by the existence of this Agreement, the financial terms hereof, or any other financial or business consideration. Neither party shall take any action to direct, require, influence, or incentivize any physician or provider to refer patients to, or order services from, the other party.

Section 7.5 — Representations by AHT. AHT hereby represents and warrants to Meridian as follows:

(a) Organization and Good Standing. AHT is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is qualified to do business and in good standing in each of the Commonwealth of Massachusetts, the State of Connecticut, the State of Rhode Island, and the State of New Hampshire.

(b) Authority. AHT has full corporate power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by AHT have been duly authorized by all necessary corporate action, including the approval of AHT's Board of Directors pursuant to Board Resolution No. 2023-01-004, adopted on January 24, 2023, which authorized the compliance self-assessment and remediation engagement, including the restructuring of the Prior Agreement.

(c) Non-Exclusion. Neither AHT nor any of its employed physicians (currently one hundred forty-seven (147) W-2 physicians and thirty-eight (38) independent contractor/medical director physicians), officers, directors, or key employees has been excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or has been convicted of a criminal offense described in 42 U.S.C. § 1320a-7(a).

(d) Compliance Review. AHT's General Counsel, Patricia Yamamoto, and AHT's Chief Compliance Officer, Derek Huang, have reviewed this Agreement and have approved the terms and conditions hereof for regulatory compliance purposes, including compliance with the AKS, the Stark Law, and applicable state healthcare fraud and abuse laws.

(e) No Conflicts. The execution, delivery, and performance of this Agreement by AHT do not and will not conflict with, violate, or result in a breach of any agreement, instrument, order, judgment, decree, or applicable law to which AHT is a party or by which AHT or its properties are bound.

Section 7.6 — Representations by Meridian. Meridian hereby represents and warrants to AHT as follows:

(a) Organization and Good Standing. Meridian is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Connecticut.

(b) Ownership. Meridian's current members are Dr. Franklin Osei, who holds a sixty percent (60%) membership interest and serves as Managing Member, and Gerald Pratt, who holds a forty percent (40%) membership interest. Meridian shall promptly notify AHT in writing of any change in its ownership structure, including any transfer, sale, assignment, pledge, or encumbrance of any membership interest, any issuance of new membership interests, or any change in the identity of the Managing Member or any individual with management authority.

(c) Non-Exclusion. Neither Meridian nor any of its owners, officers, managers, employees, or agents has been excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or has been convicted of a criminal offense described in 42 U.S.C. § 1320a-7(a).

(d) Legal Counsel. Meridian has consulted with its legal counsel, Linden & Pryor LLP (Thomas Beckett, Partner, 750 Main Street, Suite 1400, Hartford, Connecticut 06103), regarding the terms and conditions of this Agreement, and has had the opportunity to review and negotiate the provisions hereof with the assistance of such counsel.

(e) Authority. Meridian has full limited liability company power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Meridian have been duly authorized by all necessary limited liability company action, including the consent of all members.

(f) No Conflicts. The execution, delivery, and performance of this Agreement by Meridian do not and will not conflict with, violate, or result in a breach of Meridian's Operating Agreement, any agreement, instrument, order, judgment, decree, or applicable law to which Meridian is a party or by which Meridian or its properties are bound.

Section 7.7 — Annual Compliance Certification. Each party shall provide to the other an annual written certification, on or before each anniversary of the Commencement Date, confirming the certifying party's continued compliance with the representations and warranties set forth in Sections 7.5 and 7.6, as applicable. Such annual certification shall be in substantially the form attached hereto as Exhibit E and shall include, at a minimum, confirmation of: (a) the certifying party's continued good standing and authority; (b) the non-exclusion, non-debarment, and eligibility of the certifying party and its owners, officers, directors, managers, and key employees to participate in Federal Healthcare Programs; (c) any material changes in the certifying party's ownership structure (with respect to Meridian, including the current membership interests of Dr. Franklin Osei and Gerald Pratt); and (d) the certifying party's continued compliance with the AKS, the Stark Law, and all applicable state healthcare fraud and abuse laws. Failure to deliver the annual compliance certification within thirty (30) days following the applicable anniversary date shall constitute a material breach of this Agreement.

Section 7.8 — Compliance with State Laws. In addition to the federal laws referenced elsewhere in this Agreement, the parties shall comply with all applicable state laws governing healthcare referrals, fee-splitting, anti-kickback prohibitions, and related matters, including without limitation: (a) the Connecticut referral fee prohibition set forth in Conn. Gen. Stat. § 20-7a(d), which prohibits licensed health care providers from paying or receiving any form of remuneration for the referral of patients; and (b) the Massachusetts anti-kickback law set forth in M.G.L. c. 175H, § 3, to the extent applicable to the parties' activities in the Commonwealth of Massachusetts. The parties acknowledge that certain state laws may impose requirements that are more stringent than, or in addition to, the requirements of the AKS and the Stark Law, and the parties shall comply with such additional state requirements to the fullest extent applicable.

Section 7.9 — Access to Books and Records. To the extent required by applicable law, including 42 U.S.C. § 1395x(v)(1)(I) and the regulations at 42 C.F.R. Part 420, Subpart D, Meridian shall, upon the written request of the Secretary of the United States Department of Health and Human Services, the Comptroller General of the United States, or their duly authorized designees, make available for inspection, examination, and copying such of Meridian's books, documents, electronic records, and other records as may be necessary to verify the nature and extent of the costs of the services provided under this Agreement. Meridian shall comply with any such request within the time period specified in the request. This obligation shall survive the expiration or earlier termination of this Agreement for a period of four (4) years from the date of the furnishing of the last services under this Agreement, or such longer period as may be required by applicable law. AHT shall have a corresponding obligation to make its books, documents, and records available to the extent required by applicable law.

ARTICLE VIII — REFERRAL TRACKING AND MONITORING

Section 8.1 — AHT Referral Tracking. AHT shall maintain accurate and complete records of all referrals made by AHT physicians and other AHT-affiliated providers to Meridian for mobile MRI and advanced diagnostic imaging services at the Designated Premises. Such records shall include the identity of the referring physician, the date of referral, the patient identifier (de-identified or coded to the extent required by applicable privacy laws), the type of imaging service referred, and the Clinic Location at which the referred service was provided. AHT shall monitor referral patterns on a quarterly basis and shall review such data for compliance with AHT's Revised Physician Referral and Self-Referral Policy, as adopted and amended by AHT's compliance department from time to time. AHT's Chief Compliance Officer, Derek Huang, or his designee, shall be responsible for conducting such monitoring and for reporting any unusual or potentially non-compliant referral patterns to AHT's General Counsel.

Section 8.2 — Meridian Reporting. Meridian shall provide to AHT, on a quarterly basis, a written report of all Services provided at the Designated Premises during the preceding calendar quarter. Such quarterly report shall include, at a minimum: (a) the total number of scans performed at each Clinic Location; (b) a breakdown of scans by service type (e.g., MRI, advanced diagnostic imaging); (c) a summary of payor mix (e.g., Medicare, Medicaid, commercial insurance, self-pay), presented in the aggregate and by Clinic Location; and (d) any other information reasonably requested by AHT for compliance monitoring purposes. Each quarterly report shall be delivered to AHT within thirty (30) days following the end of the applicable calendar quarter. The quarterly reports shall not include individually identifiable patient information except as permitted by applicable law and any applicable Business Associate Agreement between the parties.

Section 8.3 — Prohibition on Use of Referral Data in Rental Determination. Neither party shall use referral volume data, projected referral data, revenue data, scan volume data, or any other data reflecting the volume or value of business generated between the parties in determining, adjusting, or renegotiating the Fixed Monthly Rental. Any renegotiation, adjustment, or modification of the Fixed Monthly Rental must be based solely on an updated Fair Market Value opinion prepared by a qualified Independent Appraiser in accordance with Section 4.3 of this Agreement, and shall comply with the requirements of the AKS safe harbors and Stark Law exceptions referenced in Section 7.1. The quarterly reports provided under Section 8.2 are intended solely for compliance monitoring purposes and shall not be used for any purpose related to the determination of the Fixed Monthly Rental.

ARTICLE IX — INSURANCE AND INDEMNIFICATION

Section 9.1 — Meridian Insurance Requirements. Meridian shall procure and maintain, at its sole cost and expense, throughout the Term of this Agreement (including any Renewal Term), the following insurance coverages:

(a) Commercial General Liability Insurance. Commercial general liability insurance, including coverage for premises liability, products-completed operations liability, and contractual liability, with minimum limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate. AHT shall be named as an additional insured on such policy.

(b) Professional Liability Insurance. Professional liability (malpractice) insurance covering Meridian and its physicians, technologists, and other clinical personnel providing Services at the Designated Premises, with minimum limits of not less than One Million Dollars ($1,000,000) per claim and Three Million Dollars ($3,000,000) in the aggregate. If such professional liability insurance is written on a "claims-made" basis, Meridian shall maintain tail coverage for a period of not less than three (3) years following the expiration or earlier termination of this Agreement.

(c) Workers' Compensation Insurance. Workers' compensation insurance in the amounts required by the laws of each state in which Meridian's employees perform Services under this Agreement, together with employer's liability insurance with minimum limits of not less than Five Hundred Thousand Dollars ($500,000) per accident.

(d) Automobile Liability Insurance. Automobile liability insurance covering all owned, hired, and non-owned vehicles used by Meridian in connection with the provision of Services, with minimum limits of not less than One Million Dollars ($1,000,000) combined single limit per accident.

Meridian shall provide AHT with certificates of insurance evidencing the required coverages and endorsements prior to the Commencement Date and annually thereafter upon renewal of such policies. All insurance policies maintained by Meridian pursuant to this Section 9.1 shall be issued by insurance companies rated "A-" or better by A.M. Best Company. Each such policy shall provide that it may not be cancelled or materially changed without at least thirty (30) days' prior written notice to AHT.

Section 9.2 — AHT Insurance Requirements. AHT shall maintain, at its sole cost and expense, throughout the Term of this Agreement, its existing property insurance and commercial general liability insurance covering the Designated Premises and the Clinic Locations, in amounts consistent with AHT's customary insurance program and in compliance with the requirements of any mortgage, lease, or other agreement applicable to the Clinic Locations. AHT shall provide Meridian with certificates of insurance evidencing such coverages upon reasonable request.

Section 9.3 — Mutual Indemnification. Each party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its respective officers, directors, managers, members, employees, agents, successors, and permitted assigns (collectively, the "Indemnified Parties") from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising out of or related to:

(a) any breach by the Indemnifying Party of any representation, warranty, covenant, or obligation under this Agreement;

(b) any negligent act or omission or willful misconduct of the Indemnifying Party or any of its officers, directors, managers, members, employees, agents, or contractors in connection with this Agreement or the performance of obligations hereunder; or

(c) any violation by the Indemnifying Party of any applicable federal, state, or local law, regulation, or ordinance, including without limitation the AKS, the Stark Law, HIPAA, and applicable state healthcare fraud and abuse laws.

The obligations of the Indemnifying Party under this Section 9.3 shall be conditioned upon the Indemnified Party providing the Indemnifying Party with (i) prompt written notice of any claim or proceeding giving rise to an indemnification obligation, (ii) reasonable cooperation in the defense of such claim, and (iii) the right to control the defense and settlement of such claim, provided that the Indemnifying Party shall not settle any claim in a manner that imposes any obligation or liability on the Indemnified Party without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld.

Section 9.4 — Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the other party for any consequential, incidental, special, indirect, exemplary, or punitive damages arising out of or related to this Agreement or the performance or non-performance of obligations hereunder, regardless of whether such damages are based on contract, tort, strict liability, or any other theory, and regardless of whether such party has been advised of the possibility of such damages. This limitation shall not apply to (a) a party's indemnification obligations under Section 9.3 with respect to third-party claims, (b) a party's breach of its confidentiality obligations under Article X, or (c) a party's willful misconduct or fraud.

ARTICLE X — CONFIDENTIALITY

Section 10.1 — Confidential Information. Each party (the "Receiving Party") acknowledges that, in connection with the negotiation, execution, and performance of this Agreement, it may receive or have access to confidential and proprietary business information of the other party (the "Disclosing Party"), including without limitation financial information, business plans, pricing information, patient volume data, referral data, operational strategies, and trade secrets (collectively, "Confidential Information"). The Receiving Party shall: (a) maintain all Confidential Information of the Disclosing Party in strict confidence; (b) not disclose any Confidential Information to any third party except as expressly permitted herein; and (c) use the Disclosing Party's Confidential Information solely for the purposes contemplated by this Agreement. The Receiving Party shall protect the Disclosing Party's Confidential Information using at least the same degree of care that it uses to protect its own confidential information of like nature, but in no event less than a reasonable degree of care. Patient information, including Protected Health Information as defined under HIPAA, shall be maintained in accordance with all applicable privacy and security laws, including HIPAA and the HITECH Act, and any applicable Business Associate Agreement between the parties.

Section 10.2 — Permitted Disclosures. Notwithstanding the foregoing, this Agreement and its terms are confidential and shall not be discl

FACILITY ACCESS AGREEMENT
DRAFT — Prepared for Discussion Purposes
By and Between
ARBOR HEALTH TECHNOLOGIES INC.
a Delaware corporation
("AHT" or "Facility Owner")
and
MERIDIAN DIAGNOSTICS LLC
a Connecticut limited liability company
("Meridian" or "User")
Dated as of [__], 2023
Prepared by:
Calderwood & Harkness LLP One Federal Street, 30th Floor Boston, Massachusetts 02110
Matter Number: 1010-00003
DRAFT — Subject to review and approval by Linden & Pryor LLP on behalf of Meridian Diagnostics LLC (Thomas Beckett, Partner, 750 Main Street, Suite 1400, Hartford, CT 06103).
This Agreement is intended to supersede and replace the Services Agreement dated March 1, 2021, between Arbor Health Technologies Inc. and Meridian Diagnostics LLC.
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RECITALS
WHEREAS, Arbor Health Technologies Inc. ("AHT") is a corporation duly organized and existing under the laws of the State of Delaware, with its principal offices located at 200 Concord Avenue, Suite 400, Cambridge, Massachusetts 02138, and is engaged in the business of operating twenty-three (23) outpatient clinics branded as "Arbor Health Clinics" across the Commonwealth of Massachusetts, the State of Connecticut, the State of Rhode Island, and the State of New Hampshire, providing primary care, specialty care, and ancillary services including diagnostic imaging to patients throughout the New England region;
WHEREAS, Meridian Diagnostics LLC ("Meridian") is a limited liability company duly organized and existing under the laws of the State of Connecticut, with its principal offices located at 88 Trumbull Street, Hartford, Connecticut 06103, Employer Identification Number 82-4019673, and is engaged in the business of providing mobile magnetic resonance imaging ("MRI") and advanced diagnostic imaging services to healthcare facilities and their patients throughout New England; Meridian is owned by Dr. Franklin Osei, a licensed radiologist, who holds a sixty percent (60%) membership interest and serves as Managing Member, and Gerald Pratt, who holds a forty percent (40%) membership interest;
WHEREAS, AHT and Meridian previously entered into a Services Agreement dated March 1, 2021 (the "Prior Agreement"), pursuant to which Meridian agreed to provide mobile MRI and advanced diagnostic imaging services at four (4) AHT clinic locations, and Meridian agreed to pay AHT a per-scan facility access fee of One Hundred Eighty-Five Dollars ($185.00) per scan performed at the AHT clinic locations;
WHEREAS, under the Prior Agreement, Meridian performed approximately four thousand two hundred (4,200) scans during fiscal year 2022, resulting in aggregate facility access fees of approximately Seven Hundred Seventy-Seven Thousand Dollars ($777,000) paid by Meridian to AHT during such fiscal year; during the same period, AHT physicians generated approximately Two Million Eight Hundred Thousand Dollars ($2,800,000) in patient referrals to Meridian for mobile MRI and advanced diagnostic imaging services;
WHEREAS, AHT undertook a comprehensive compliance self-assessment in 2022 and early 2023, including a review of its physician referral practices and financial arrangements with third-party service providers, and as a result of that self-assessment, AHT's General Counsel, Patricia Yamamoto, and AHT's Chief Compliance Officer, Derek Huang, identified the per-scan fee structure under the Prior Agreement as presenting potential compliance risks under applicable federal and state healthcare fraud and abuse laws;
WHEREAS, the parties desire to restructure the Prior Agreement to convert the per-scan facility access fee to a fixed monthly facility rental payment determined at fair market value, in order to conform the arrangement to the applicable requirements of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (the "AKS"), the Physician Self-Referral Law, 42 U.S.C. § 1395nn (the "Stark Law"), the space rental safe harbor set forth at 42 C.F.R. § 1001.952(b), the equipment rental safe harbor set forth at 42 C.F.R. § 1001.952(c), the Stark Law space rental exception set forth at 42 C.F.R. § 411.357(a), and the Stark Law equipment rental exception set forth at 42 C.F.R. § 411.357(b);
WHEREAS, the restructuring is intended to ensure that the rental payments under this Agreement are set in advance, are consistent with fair market value, are not determined in a manner that takes into account the volume or value of any referrals or other business generated between the parties, and are commercially reasonable even in the absence of any referrals or other business between the parties; and
WHEREAS, each party has had the opportunity to consult with its own legal counsel regarding the terms and conditions of this Agreement, and each party enters into this Agreement voluntarily and with full knowledge of its rights and obligations hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I — DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Article I shall have the meanings assigned to them elsewhere in this Agreement.
Section 1.1 — "Affiliate" shall mean, with respect to any party, any entity directly or indirectly controlling, controlled by, or under common control with such party. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, an entity shall be deemed to control another entity if it owns, directly or indirectly, fifty percent (50%) or more of the voting equity interests of such other entity.
Section 1.2 — "AKS" shall mean the federal Anti-Kickback Statute, codified at 42 U.S.C. § 1320a-7b(b), together with all implementing regulations, including without limitation the safe harbor regulations set forth at 42 C.F.R. § 1001.952, as the same may be amended, supplemented, or replaced from time to time.
Section 1.3 — "Annual FMV Recertification" shall mean the process described in Section 4.3 of this Agreement for the annual recertification of the fair market value of the Fixed Monthly Rental by an Independent Appraiser.
Section 1.4 — "Clinic Locations" or "Designated Premises" shall mean the four (4) AHT clinic locations identified and described in Exhibit A attached hereto at which Meridian is authorized to provide the Services in accordance with this Agreement, including the specified parking and docking areas for Meridian's mobile MRI unit, patient waiting and preparation areas, and utility access points, each as more particularly described in Exhibit A.
Section 1.5 — "Commencement Date" shall have the meaning set forth in Section 3.1 of this Agreement.
Section 1.6 — "Effective Date" shall mean the date first written above on the cover page of this Agreement.
Section 1.7 — "Equipment" shall mean the mobile MRI and advanced diagnostic imaging equipment described in Exhibit B attached hereto, which is owned or leased by Meridian and which Meridian brings to the Designated Premises for the purpose of providing the Services. Equipment shall include all ancillary equipment, coils, power systems, patient monitoring equipment, and other accessories described in Exhibit B.
Section 1.8 — "Fair Market Value" or "FMV" shall mean the value in arm's-length transactions, consistent with the general market value of the rental of space or equipment (as applicable), not taking into account the volume or value of any referrals or other business generated between the parties, as determined by an Independent Appraiser in accordance with Section 4.3 of this Agreement. For purposes of this definition, "general market value" means the price that an asset or service would bring as the result of bona fide bargaining between well-informed buyers and sellers who are not otherwise in a position to generate business for the other party at the time of the agreement, consistent with the meaning assigned to such term under the Stark Law regulations at 42 C.F.R. § 411.351.
Section 1.9 — "Federal Healthcare Program" shall have the meaning set forth in 42 U.S.C. § 1320a-7b(f), and shall include, without limitation, the Medicare program under Title XVIII of the Social Security Act, the Medicaid program under Title XIX of the Social Security Act, the TRICARE program, and any other plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government.
Section 1.10 — "Fixed Monthly Rental" shall mean the fixed monthly amount payable by Meridian to AHT for access to and use of the Designated Premises, as set forth in Section 4.1 of this Agreement and Exhibit C attached hereto.
Section 1.11 — "Independent Appraiser" shall mean a qualified independent valuation professional engaged pursuant to Section 4.3 of this Agreement to determine the Fair Market Value of the Fixed Monthly Rental. The initial Independent Appraiser shall be Northbridge Valuation Advisors LLC, located at 1600 Market Street, Suite 2800, Philadelphia, Pennsylvania 19103 (Sandra Kilpatrick, Managing Director).
Section 1.12 — "OIG" shall mean the Office of Inspector General of the United States Department of Health and Human Services.
Section 1.13 — "Permitted Use" shall have the meaning set forth in Section 5.2 of this Agreement.
Section 1.14 — "Prior Agreement" shall mean the Services Agreement dated March 1, 2021, by and between AHT and Meridian, as such agreement may have been amended, modified, or supplemented prior to the Effective Date.
Section 1.15 — "Referral" shall mean the referral of a patient by an AHT physician, employed provider, or other healthcare professional associated with AHT for services performed by Meridian, including but not limited to mobile MRI scans and other advanced diagnostic imaging procedures.
Section 1.16 — "Services" shall mean the mobile MRI and advanced diagnostic imaging services provided by Meridian using the Equipment at the Designated Premises in accordance with this Agreement.
Section 1.17 — "Stark Law" shall mean the Physician Self-Referral Law, codified at 42 U.S.C. § 1395nn, and implementing regulations at 42 C.F.R. § 411.350 et seq., as the same may be amended, supplemented, or replaced from time to time.
Section 1.18 — "Term" shall mean the period described in Article III of this Agreement, including the Initial Term and any Renewal Term(s).
Section 1.19 — "Use Schedule" shall mean the schedule of dates and times during which Meridian is permitted to access and use the Designated Premises for the provision of the Services, as set forth in Exhibit D attached hereto and as may be updated in accordance with Section 5.3 of this Agreement.
ARTICLE II — TERMINATION OF PRIOR AGREEMENT; SUPERSESSION
Section 2.1 — Termination of Prior Agreement. Upon the occurrence of the Commencement Date, the Prior Agreement dated March 1, 2021, by and between AHT and Meridian, shall be deemed terminated and superseded in its entirety by this Agreement. From and after the Commencement Date, neither party shall have any rights or obligations under the Prior Agreement, except as expressly provided in this Article II. The parties acknowledge that the termination and supersession of the Prior Agreement is an integral part of the compliance restructuring contemplated by this Agreement.
Section 2.2 — Cessation of Per-Scan Fees. All per-scan facility access fees of One Hundred Eighty-Five Dollars ($185.00) per scan payable by Meridian to AHT under the Prior Agreement shall cease to accrue as of the close of business on the day immediately preceding the Commencement Date. From and after the Commencement Date, no further per-scan fees shall accrue or be payable under the Prior Agreement, and the sole compensation payable by Meridian to AHT for access to and use of the Designated Premises shall be the Fixed Monthly Rental as set forth in Article IV and Exhibit C of this Agreement.
Section 2.3 — Payment of Outstanding Per-Scan Fees. Meridian shall pay to AHT any outstanding per-scan facility access fees that accrued under the Prior Agreement through and including the day immediately preceding the Commencement Date. Such payment shall be due and payable within thirty (30) days of the Commencement Date. Within ten (10) business days of the Commencement Date, AHT shall provide Meridian with a final reconciliation statement setting forth the total number of scans performed and the aggregate per-scan fees accrued under the Prior Agreement through the day immediately preceding the Commencement Date. Meridian shall have fifteen (15) business days following receipt of such reconciliation statement to review and raise any objections; if no objections are raised within such period, the reconciliation statement shall be deemed accepted.
Section 2.4 — Surviving Obligations. Neither party shall have any further obligations under the Prior Agreement from and after the Commencement Date, except for (a) Meridian's obligation to pay any outstanding per-scan fees as provided in Section 2.3 above, (b) any indemnification obligations that arose under the Prior Agreement prior to the Commencement Date with respect to events occurring prior to the Commencement Date, and (c) any confidentiality obligations under the Prior Agreement that, by their terms, survive the termination of the Prior Agreement. For the avoidance of doubt, no provision of the Prior Agreement shall survive the Commencement Date except as expressly set forth in this Section 2.4.
ARTICLE III — TERM AND RENEWAL
Section 3.1 — Initial Term. This Agreement shall have an initial term of three (3) years (the "Initial Term"), commencing on the Commencement Date. The Commencement Date shall be the date that is the first day of the calendar month immediately following the later of (a) the Effective Date and (b) the date on which AHT receives the initial Fair Market Value opinion from the Independent Appraiser (Northbridge Valuation Advisors LLC) as contemplated by Section 4.1 and Exhibit C. The Commencement Date shall be inserted into this Agreement upon execution by both parties. Unless earlier terminated in accordance with the provisions of this Article III, the Initial Term shall expire at 11:59 p.m. Eastern Time on the third anniversary of the Commencement Date.
Section 3.2 — Renewal. Following the expiration of the Initial Term, this Agreement may be renewed for successive periods of one (1) year each (each, a "Renewal Term"), upon the mutual written agreement of the parties. Any such renewal must be executed by both parties not less than ninety (90) days prior to the expiration of the then-current Term (whether the Initial Term or a Renewal Term). Each renewal shall be subject to the completion of the Annual FMV Recertification described in Section 4.3 of this Agreement, and the Fixed Monthly Rental for any Renewal Term shall be set at the Fair Market Value as determined by the most recent Annual FMV Recertification. No renewal shall be effective unless and until both parties have executed a written renewal agreement or amendment, and the Annual FMV Recertification has been completed in accordance with Section 4.3.
Section 3.3 — No Holdover. Meridian shall not have the right to use, occupy, or access the Designated Premises or any other AHT facilities following the expiration or earlier termination of this Agreement without a duly executed renewal or extension in writing. Any unauthorized use of the Designated Premises by Meridian following the expiration or earlier termination of this Agreement shall not create a new term, holdover tenancy, tenancy at will, or tenancy at sufferance, and AHT shall be entitled to exercise all rights and remedies available at law or in equity to regain possession of the Designated Premises, including without limitation the right to seek injunctive relief. During any period of unauthorized holdover use, Meridian shall be obligated to pay AHT a use and occupancy charge equal to one hundred fifty percent (150%) of the then-applicable Fixed Monthly Rental, prorated on a daily basis, in addition to any other damages to which AHT may be entitled.
Section 3.4 — Termination for Cause. Either party may terminate this Agreement upon sixty (60) days' prior written notice to the other party if the other party commits a material breach of any representation, warranty, covenant, or obligation under this Agreement, and such breach remains uncured after the expiration of a thirty (30)-day cure period following receipt of written notice from the non-breaching party specifying the nature and extent of the breach in reasonable detail. If the nature of the breach is such that it cannot reasonably be cured within thirty (30) days, the breaching party shall not be deemed in default if it commences cure within such thirty (30)-day period and thereafter diligently pursues cure to completion within a reasonable period not to exceed an additional thirty (30) days.
Section 3.5 — Termination for Compliance Reasons. Either party may terminate this Agreement immediately upon written notice to the other party if the terminating party reasonably determines, in good faith and after consultation with legal counsel, that the continuation of the arrangement contemplated by this Agreement would violate, or would create a material risk of violating, the AKS, the Stark Law, or any other applicable federal, state, or local law or regulation governing healthcare fraud and abuse, physician self-referrals, or anti-kickback prohibitions, including without limitation the Connecticut referral fee prohibition set forth in Conn. Gen. Stat. § 20-7a(d) and the Massachusetts anti-kickback law set forth in M.G.L. c. 175H, § 3. A party exercising its rights under this Section 3.5 shall provide the other party with a written statement setting forth, in reasonable detail, the basis for its determination, subject to the protections of the attorney-client privilege and work-product doctrine.
Section 3.6 — Termination for Exclusion or Debarment. Either party may terminate this Agreement immediately upon written notice to the other party if the other party, or any owner, officer, director, manager, or key employee of the other party, is excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or is convicted of a criminal offense related to the provision of healthcare items or services, the neglect or abuse of a patient, fraud, theft, embezzlement, financial misconduct, or obstruction of a healthcare investigation. The parties acknowledge that continued performance under this Agreement with an excluded or debarred party or individual could expose the non-excluded party to significant legal, financial, and regulatory liability, and that immediate termination in such circumstances is therefore appropriate and necessary. Each party shall promptly notify the other party, in writing, upon learning that any such exclusion, debarment, suspension, or conviction has occurred or is reasonably anticipated.
ARTICLE IV — RENTAL PAYMENTS AND FAIR MARKET VALUE
Section 4.1 — Fixed Monthly Rental. In consideration of AHT's grant to Meridian of the right to access and use the Designated Premises in accordance with the Use Schedule, Meridian shall pay to AHT a Fixed Monthly Rental in the amount of $[__] per month (the "Fixed Monthly Rental"). The Fixed Monthly Rental for the initial year of the Initial Term is set forth in Exhibit C attached hereto, as determined by the Independent Appraiser, Northbridge Valuation Advisors LLC (Sandra Kilpatrick, Managing Director), 1600 Market Street, Suite 2800, Philadelphia, Pennsylvania 19103, which has been retained by AHT to provide an independent Fair Market Value opinion for this facility access arrangement.
The parties acknowledge and agree that the Fixed Monthly Rental replaces the prior per-scan fee structure of One Hundred Eighty-Five Dollars ($185.00) per scan that was in effect under the Prior Agreement. The Fixed Monthly Rental is intentionally structured as a fixed amount that does not vary with, and is not determined by reference to, the volume or value of referrals, services rendered, scans performed, patients treated, revenues generated, or any other business generated between the parties, their Affiliates, or their respective physicians, employees, or agents. The Fixed Monthly Rental shall remain in effect for each year of the Term, subject to adjustment only through the Annual FMV Recertification process set forth in Section 4.3 below.
Section 4.2 — Payment Terms. The Fixed Monthly Rental shall be due and payable on the first business day of each calendar month during the Term. If the Commencement Date falls on a day other than the first day of a calendar month, the Fixed Monthly Rental for the partial month in which the Commencement Date occurs shall be prorated on a per diem basis (based on the number of days remaining in such month divided by the total number of days in such month) and shall be due and payable on the Commencement Date.
All payments of the Fixed Monthly Rental shall be made by wire transfer or Automated Clearing House ("ACH") transfer to the bank account designated by AHT in writing. AHT shall provide Meridian with its wire transfer and ACH instructions in writing prior to the Commencement Date, and shall provide Meridian with not less than thirty (30) days' prior written notice of any change in such instructions.
Any payment of the Fixed Monthly Rental not received by AHT within ten (10) business days of the applicable due date shall bear interest from the due date until paid at a rate equal to the lesser of (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or (b) the maximum rate of interest permitted by applicable law. The accrual of interest on late payments shall not constitute a waiver of AHT's right to declare a material breach of this Agreement pursuant to Section 3.4 in the event of repeated or prolonged payment defaults.
Section 4.3 — Annual FMV Recertification.
(a) Timing and Engagement of Appraiser. Not less than sixty (60) days prior to each anniversary of the Commencement Date (whether during the Initial Term or any Renewal Term), AHT shall cause an Independent Appraiser to prepare an updated Fair Market Value opinion for the Fixed Monthly Rental. The initial Independent Appraiser shall be Northbridge Valuation Advisors LLC, or such other qualified independent appraiser as AHT may designate from time to time with reasonable advance notice to Meridian. The Independent Appraiser shall be an individual or firm with demonstrated expertise in the valuation of healthcare-related real estate and equipment rental arrangements, and shall not have a financial interest in, or affiliation with, either party that would compromise its independence or objectivity.
(b) Methodology. The FMV opinion shall be based on comparable rental data for similar premises and similar equipment access arrangements in the applicable geographic markets in which the Designated Premises are located, taking into account factors such as the size and condition of the Designated Premises, the frequency and duration of Meridian's access under the Use Schedule, the availability of comparable space in the relevant market, and the nature and scope of the utility and infrastructure access provided by AHT. The FMV opinion shall not take into account the volume or value of referrals or other business generated between the parties, and shall be prepared in accordance with applicable professional valuation standards, including the Uniform Standards of Professional Appraisal Practice (USPAP), to the extent applicable.
(c) Adjustment of Fixed Monthly Rental. If the updated FMV opinion results in a Fair Market Value that differs from the then-current Fixed Monthly Rental, the Fixed Monthly Rental shall be adjusted to the amount set forth in the updated FMV opinion, effective as of the applicable anniversary date of the Commencement Date. The parties shall execute an amendment or addendum to this Agreement, in substantially the form attached hereto as Exhibit F, reflecting the adjusted Fixed Monthly Rental amount and confirming that all other terms and conditions of this Agreement remain in full force and effect.
(d) Dispute Resolution. If the parties cannot agree on the adjusted Fixed Monthly Rental within thirty (30) days following delivery of the updated FMV opinion to both parties, either party may terminate this Agreement upon sixty (60) days' prior written notice to the other party. During such sixty (60)-day notice period, the Fixed Monthly Rental shall continue at the rate in effect immediately prior to delivery of the updated FMV opinion. In the alternative, either party may request that a second Independent Appraiser, mutually selected by the parties, prepare an additional FMV opinion at the requesting party's expense, provided that such request is made within fifteen (15) days following delivery of the initial updated FMV opinion; in such case, the Fixed Monthly Rental shall be adjusted to the average of the two FMV opinions, unless the parties otherwise agree in writing.
(e) Retention of FMV Opinions. Each FMV opinion prepared pursuant to this Section 4.3, together with all supporting documentation and work papers, shall be retained by AHT for a period of not less than seven (7) years from the date of such opinion, and shall be made available to Meridian for inspection and copying upon reasonable request. Meridian shall also retain a copy of each FMV opinion for not less than seven (7) years from the date of such opinion.
Section 4.4 — No Additional Fees or Remuneration. Except for the Fixed Monthly Rental as set forth in this Article IV, neither party shall pay, offer, solicit, or receive any fee, payment, discount, rebate, refund, remuneration, or other consideration of any kind, whether in cash or in kind, directly or indirectly, in connection with this Agreement, the use of the Designated Premises, the provision of the Services, or the referral of patients between the parties. For the avoidance of doubt, no per-scan fee, per-procedure fee, percentage-of-revenue fee, per-patient fee, or other variable fee or payment tied to the volume or value of services rendered, scans performed, patients treated, or referrals made shall apply under this Agreement. This prohibition extends to any fee, payment, or consideration that is not set forth in this Agreement and Exhibit C hereto, whether characterized as a management fee, administrative fee, marketing fee, or otherwise.
Section 4.5 — Commercially Reasonable. The parties acknowledge and agree that the Fixed Monthly Rental and the other terms and conditions of this Agreement are commercially reasonable, reflect Fair Market Value as determined by the Independent Appraiser, would be entered into by like parties in an arm's-length transaction under comparable circumstances, and are not conditioned upon or intended to induce, reward, or compensate, directly or indirectly, the referral of patients, the generation of business, or the ordering of any item or service reimbursable by any Federal Healthcare Program or any other payor. The parties further acknowledge that the arrangement contemplated by this Agreement would be commercially reasonable even in the absence of any referrals or other business between the parties.
ARTICLE V — DESIGNATED PREMISES AND PERMITTED USE
Section 5.1 — Designated Premises. Subject to the terms and conditions of this Agreement, AHT hereby grants to Meridian the non-exclusive right (unless designated as exclusive in the Use Schedule) to access and use the designated areas at the four (4) AHT clinic locations identified and described in Exhibit A attached hereto (each, a "Clinic Location" and collectively, the "Designated Premises") solely for the Permitted Use described in Section 5.2 and in accordance with the Use Schedule set forth in Exhibit D attached hereto. AHT operates twenty-three (23) outpatient clinics across Massachusetts, Connecticut, Rhode Island, and New Hampshire; the four (4) Designated Premises represent the specific Clinic Locations at which Meridian has been authorized to provide Services, as identified in Exhibit A. Specific addresses and descriptions of the Designated Premises are set forth in Exhibit A, subject to confirmation by the parties prior to execution.
The Designated Premises at each Clinic Location shall include, as applicable and as more particularly described in Exhibit A: (a) specified parking and docking areas for Meridian's mobile MRI unit, of sufficient size and configuration to accommodate the safe positioning and operation of the mobile MRI unit; (b) patient waiting and preparation areas designated for use by Meridian's patients during the times specified in the Use Schedule; (c) utility access points, including electrical power connections, water supply (if applicable), and any other utility connections necessary for the safe and effective operation of Meridian's Equipment; and (d) reasonable ingress and egress to and from the parking and docking areas, patient areas, and utility access points.
Section 5.2 — Permitted Use. The Designated Premises shall be used by Meridian solely for the purpose of providing mobile MRI and advanced diagnostic imaging services using Meridian's Equipment, and for no other purpose (the "Permitted Use"). Without limiting the generality of the foregoing:
(a) Meridian shall not use the Designated Premises for any purpose that violates applicable law, including without limitation federal and state healthcare fraud and abuse laws, the AKS, the Stark Law, HIPAA, and any applicable state licensing and accreditation requirements.
(b) Meridian shall not sublease, sublicense, assign, or otherwise permit any third party to use, occupy, or access the Designated Premises or any portion thereof, without the prior written consent of AHT, which consent may be withheld in AHT's sole and absolute discretion.
(c) Meridian shall not use the Designated Premises in any manner that would interfere with AHT's operations, patient care activities, or the use of adjacent or shared spaces by AHT or other authorized users of the Clinic Locations.
(d) Meridian shall comply with all reasonable rules, regulations, and policies of AHT applicable to the Clinic Locations, including safety protocols, infection control policies, visitor and vendor access policies, and parking regulations, as communicated to Meridian in writing from time to time.
Section 5.3 — Use Schedule. Meridian's access to and use of the Designated Premises shall be limited to the specific days of the week and hours of the day set forth in the Use Schedule attached hereto as Exhibit D. The Use Schedule shall be set in advance for each calendar year and shall not be modified more frequently than annually, except by the mutual written agreement of both parties. The parties shall use commercially reasonable efforts to finalize the Use Schedule for each calendar year not later than November 1 of the preceding calendar year.
The Use Schedule shall specify, for each Clinic Location: (i) the day(s) of the week on which Meridian may access and use the Designated Premises; (ii) the hours of the day during which Meridian may access and use the Designated Premises (start time and end time); and (iii) whether Meridian's use during such periods is exclusive (meaning Meridian has sole access to the Designated Premises during such periods) or non-exclusive or shared (meaning AHT or other authorized parties may also access and use portions of the Designated Premises during such periods). The Use Schedule shall be reasonable and consistent with the operational needs of AHT's Clinic Locations and Meridian's provision of the Services.
Section 5.4 — Condition of Premises. AHT shall deliver the Designated Premises to Meridian in good condition and in a state of repair suitable for the Permitted Use as of the Commencement Date. Throughout the Term, AHT shall be responsible for the maintenance and repair of the structural components of the Designated Premises, including the roof, exterior walls, foundation, and building systems (including HVAC, electrical, plumbing, and fire suppression systems), to the extent that such components are part of the Clinic Location buildings. AHT shall also be responsible for ensuring that the utility access points at the Designated Premises are maintained in good working order and are capable of providing adequate electrical power and other utilities necessary for the safe operation of Meridian's Equipment, in accordance with the specifications set forth in Exhibit B.
Meridian shall be responsible for maintaining its Equipment in safe and proper working order at all times, and for any damage to the Designated Premises, the Clinic Location buildings, or any AHT property caused by Meridian's use of the Designated Premises, by the installation, operation, or removal of Meridian's Equipment, or by the acts or omissions of Meridian's employees, agents, contractors, or invitees. Upon the expiration or earlier termination of this Agreement, Meridian shall remove all of its Equipment from the Designated Premises and shall restore the Designated Premises to their condition as of the Commencement Date, ordinary wear and tear excepted.
Section 5.5 — Compliance with Laws. All use of the Designated Premises by Meridian shall comply with all applicable federal, state, and local laws, regulations, codes, ordinances, and orders, including without limitation: (a) healthcare licensure and accreditation requirements applicable to the provision of diagnostic imaging services; (b) zoning and land use regulations applicable to the Clinic Locations; (c) building codes, fire codes, and safety regulations; (d) environmental laws and regulations, including those governing the use, storage, and disposal of hazardous materials; (e) the AKS, the Stark Law, and all other applicable healthcare fraud and abuse laws; and (f) HIPAA and all other applicable privacy and security laws. Meridian shall obtain and maintain, at its sole cost and expense, all licenses, permits, certifications, and accreditations required for the provision of the Services at the Designated Premises.
ARTICLE VI — EQUIPMENT
Section 6.1 — Meridian Equipment. Meridian shall provide and maintain, at its sole cost and expense, all Equipment necessary to perform the Services at the Designated Premises, as described in Exhibit B attached hereto. All Equipment brought by Meridian to the Designated Premises shall be owned or leased by Meridian, and AHT shall have no ownership interest in, or right, title, or claim to, any of Meridian's Equipment. Meridian shall be solely responsible for the transportation, installation, calibration, maintenance, repair, and removal of its Equipment at each Clinic Location. Meridian represents and warrants that all Equipment used at the Designated Premises shall be maintained in compliance with all applicable federal, state, and local laws, regulations, and industry standards, including without limitation the requirements of the U.S. Food and Drug Administration ("FDA"), applicable accreditation standards (such as those of the American College of Radiology), and manufacturer specifications.
Section 6.2 — AHT Equipment. To the extent that Meridian uses, or proposes to use, any equipment owned or leased by AHT at or in connection with the Designated Premises (including without limitation any patient monitoring equipment, computer systems, or network infrastructure), such use shall be governed by a separate written equipment rental agreement between the parties. Any such equipment rental agreement shall be structured to conform to the requirements of the Stark Law equipment rental exception set forth at 42 C.F.R. § 411.357(b) and the AKS equipment rental safe harbor set forth at 42 C.F.R. § 1001.952(c), including without limitation the requirements that (a) the rental agreement is set out in writing and signed by the parties, (b) the agreement specifies the equipment covered by the agreement, (c) the equipment rental is set in advance, is consistent with Fair Market Value in arm's-length transactions, and does not take into account the volume or value of any referrals or other business generated between the parties, and (d) the agreement would be commercially reasonable even if no referrals were made between the parties. Meridian shall not use any AHT equipment without a duly executed equipment rental agreement meeting the foregoing requirements.
Section 6.3 — Equipment Insurance. Meridian shall maintain, at its sole cost and expense, throughout the Term of this Agreement, insurance coverage for all Equipment brought to the Designated Premises, including the following minimum coverages:
(a) Commercial General Liability Insurance. Commercial general liability insurance covering bodily injury, personal injury, and property damage arising out of or related to Meridian's use of the Designated Premises and the operation of Meridian's Equipment, with minimum limits of not less than $[__] per occurrence and $[__] in the aggregate.
(b) Equipment and Property Insurance. "All-risk" or special form property insurance covering Meridian's Equipment against loss, damage, or destruction, in an amount not less than the full replacement cost of such Equipment.
(c) Additional Insured Requirement. AHT shall be named as an additional insured on Meridian's commercial general liability insurance policy. Meridian shall provide AHT with certificates of insurance evidencing the required coverages and the additional insured endorsement within ten (10) business days of the Commencement Date and annually thereafter upon renewal of such policies.
Meridian's insurance obligations under this Section 6.3 are in addition to, and not in limitation of, Meridian's insurance obligations under Article IX of this Agreement.
ARTICLE VII — COMPLIANCE REPRESENTATIONS AND COVENANTS
Section 7.1 — AKS and Stark Compliance Intent. The parties acknowledge and agree that this Agreement is intended to comply with, and to satisfy all applicable requirements of, the following federal healthcare regulatory provisions:
(a) The AKS space rental safe harbor, as set forth at 42 C.F.R. § 1001.952(b);
(b) The AKS equipment rental safe harbor, as set forth at 42 C.F.R. § 1001.952(c), to the extent applicable to any equipment use contemplated by this Agreement or any separate equipment rental agreement executed pursuant to Section 6.2;
(c) The Stark Law space rental exception, as set forth at 42 C.F.R. § 411.357(a);
(d) The Stark Law equipment rental exception, as set forth at 42 C.F.R. § 411.357(b), to the extent applicable to any equipment use contemplated by this Agreement or any separate equipment rental agreement executed pursuant to Section 6.2; and
(e) Any other applicable federal or state safe harbor, exception, or regulatory provision governing rental or lease arrangements in the healthcare context.
The parties agree to interpret and perform this Agreement in a manner consistent with the foregoing provisions at all times. To the extent that any provision of this Agreement is found to be inconsistent with, or fails to satisfy the requirements of, any of the foregoing safe harbors or exceptions, the parties shall negotiate in good faith and use commercially reasonable efforts to amend this Agreement to achieve compliance, as further provided in Section 15.3 of this Agreement.
Section 7.2 — No Referral Inducement. Neither the Fixed Monthly Rental nor any other term, condition, provision, or obligation of this Agreement is intended to, or shall be construed to, induce, reward, compensate, or pay for, directly or indirectly, the referral of patients, the generation of business, the ordering of any item or service, or the recommending or arranging for the ordering of any item or service, that is reimbursable, in whole or in part, by any Federal Healthcare Program or any other third-party payor. The parties expressly disclaim any intent to induce or reward referrals through the arrangement contemplated by this Agreement, and each party agrees that it shall not, directly or indirectly, offer, pay, solicit, or receive any remuneration (as defined in the AKS) in connection with this Agreement, except as expressly authorized herein and consistent with applicable law.
Section 7.3 — Rental Not Based on Referrals. The Fixed Monthly Rental has been determined, and shall at all times be maintained, in a manner that does not take into account the volume or value of any referrals or other business generated between the parties, their respective Affiliates, or their respective physicians, employed providers, independent contractors, employees, or agents. The parties acknowledge that the restructuring of the prior per-scan fee arrangement into a fixed monthly rental was undertaken specifically to eliminate any nexus between the compensation paid under this Agreement and the volume or value of referrals or other business between the parties.
Section 7.4 — Independence of Medical Judgment. Nothing in this Agreement shall be construed to limit, restrict, interfere with, or otherwise affect the independent medical judgment of any AHT physician, employed provider, or independent contractor physician, or any Meridian physician (including Dr. Franklin Osei), in making referral decisions, ordering diagnostic tests or imaging studies, recommending treatments, or otherwise exercising professional clinical judgment. All referral decisions by AHT physicians and other providers shall be based solely on the clinical needs of the patient, taking into account the physician's professional assessment of the most appropriate diagnostic or treatment modality, and shall not be influenced by the existence of this Agreement, the financial terms hereof, or any other financial or business consideration. Neither party shall take any action to direct, require, influence, or incentivize any physician or provider to refer patients to, or order services from, the other party.
Section 7.5 — Representations by AHT. AHT hereby represents and warrants to Meridian as follows:
(a) Organization and Good Standing. AHT is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is qualified to do business and in good standing in each of the Commonwealth of Massachusetts, the State of Connecticut, the State of Rhode Island, and the State of New Hampshire.
(b) Authority. AHT has full corporate power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by AHT have been duly authorized by all necessary corporate action, including the approval of AHT's Board of Directors pursuant to Board Resolution No. 2023-01-004, adopted on January 24, 2023, which authorized the compliance self-assessment and remediation engagement, including the restructuring of the Prior Agreement.
(c) Non-Exclusion. Neither AHT nor any of its employed physicians (currently one hundred forty-seven (147) W-2 physicians and thirty-eight (38) independent contractor/medical director physicians), officers, directors, or key employees has been excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or has been convicted of a criminal offense described in 42 U.S.C. § 1320a-7(a).
(d) Compliance Review. AHT's General Counsel, Patricia Yamamoto, and AHT's Chief Compliance Officer, Derek Huang, have reviewed this Agreement and have approved the terms and conditions hereof for regulatory compliance purposes, including compliance with the AKS, the Stark Law, and applicable state healthcare fraud and abuse laws.
(e) No Conflicts. The execution, delivery, and performance of this Agreement by AHT do not and will not conflict with, violate, or result in a breach of any agreement, instrument, order, judgment, decree, or applicable law to which AHT is a party or by which AHT or its properties are bound.
Section 7.6 — Representations by Meridian. Meridian hereby represents and warrants to AHT as follows:
(a) Organization and Good Standing. Meridian is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Connecticut.
(b) Ownership. Meridian's current members are Dr. Franklin Osei, who holds a sixty percent (60%) membership interest and serves as Managing Member, and Gerald Pratt, who holds a forty percent (40%) membership interest. Meridian shall promptly notify AHT in writing of any change in its ownership structure, including any transfer, sale, assignment, pledge, or encumbrance of any membership interest, any issuance of new membership interests, or any change in the identity of the Managing Member or any individual with management authority.
(c) Non-Exclusion. Neither Meridian nor any of its owners, officers, managers, employees, or agents has been excluded, debarred, suspended, or otherwise declared ineligible to participate in any Federal Healthcare Program, or has been convicted of a criminal offense described in 42 U.S.C. § 1320a-7(a).
(d) Legal Counsel. Meridian has consulted with its legal counsel, Linden & Pryor LLP (Thomas Beckett, Partner, 750 Main Street, Suite 1400, Hartford, Connecticut 06103), regarding the terms and conditions of this Agreement, and has had the opportunity to review and negotiate the provisions hereof with the assistance of such counsel.
(e) Authority. Meridian has full limited liability company power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Meridian have been duly authorized by all necessary limited liability company action, including the consent of all members.
(f) No Conflicts. The execution, delivery, and performance of this Agreement by Meridian do not and will not conflict with, violate, or result in a breach of Meridian's Operating Agreement, any agreement, instrument, order, judgment, decree, or applicable law to which Meridian is a party or by which Meridian or its properties are bound.
Section 7.7 — Annual Compliance Certification. Each party shall provide to the other an annual written certification, on or before each anniversary of the Commencement Date, confirming the certifying party's continued compliance with the representations and warranties set forth in Sections 7.5 and 7.6, as applicable. Such annual certification shall be in substantially the form attached hereto as Exhibit E and shall include, at a minimum, confirmation of: (a) the certifying party's continued good standing and authority; (b) the non-exclusion, non-debarment, and eligibility of the certifying party and its owners, officers, directors, managers, and key employees to participate in Federal Healthcare Programs; (c) any material changes in the certifying party's ownership structure (with respect to Meridian, including the current membership interests of Dr. Franklin Osei and Gerald Pratt); and (d) the certifying party's continued compliance with the AKS, the Stark Law, and all applicable state healthcare fraud and abuse laws. Failure to deliver the annual compliance certification within thirty (30) days following the applicable anniversary date shall constitute a material breach of this Agreement.
Section 7.8 — Compliance with State Laws. In addition to the federal laws referenced elsewhere in this Agreement, the parties shall comply with all applicable state laws governing healthcare referrals, fee-splitting, anti-kickback prohibitions, and related matters, including without limitation: (a) the Connecticut referral fee prohibition set forth in Conn. Gen. Stat. § 20-7a(d), which prohibits licensed health care providers from paying or receiving any form of remuneration for the referral of patients; and (b) the Massachusetts anti-kickback law set forth in M.G.L. c. 175H, § 3, to the extent applicable to the parties' activities in the Commonwealth of Massachusetts. The parties acknowledge that certain state laws may impose requirements that are more stringent than, or in addition to, the requirements of the AKS and the Stark Law, and the parties shall comply with such additional state requirements to the fullest extent applicable.
Section 7.9 — Access to Books and Records. To the extent required by applicable law, including 42 U.S.C. § 1395x(v)(1)(I) and the regulations at 42 C.F.R. Part 420, Subpart D, Meridian shall, upon the written request of the Secretary of the United States Department of Health and Human Services, the Comptroller General of the United States, or their duly authorized designees, make available for inspection, examination, and copying such of Meridian's books, documents, electronic records, and other records as may be necessary to verify the nature and extent of the costs of the services provided under this Agreement. Meridian shall comply with any such request within the time period specified in the request. This obligation shall survive the expiration or earlier termination of this Agreement for a period of four (4) years from the date of the furnishing of the last services under this Agreement, or such longer period as may be required by applicable law. AHT shall have a corresponding obligation to make its books, documents, and records available to the extent required by applicable law.
ARTICLE VIII — REFERRAL TRACKING AND MONITORING
Section 8.1 — AHT Referral Tracking. AHT shall maintain accurate and complete records of all referrals made by AHT physicians and other AHT-affiliated providers to Meridian for mobile MRI and advanced diagnostic imaging services at the Designated Premises. Such records shall include the identity of the referring physician, the date of referral, the patient identifier (de-identified or coded to the extent required by applicable privacy laws), the type of imaging service referred, and the Clinic Location at which the referred service was provided. AHT shall monitor referral patterns on a quarterly basis and shall review such data for compliance with AHT's Revised Physician Referral and Self-Referral Policy, as adopted and amended by AHT's compliance department from time to time. AHT's Chief Compliance Officer, Derek Huang, or his designee, shall be responsible for conducting such monitoring and for reporting any unusual or potentially non-compliant referral patterns to AHT's General Counsel.
Section 8.2 — Meridian Reporting. Meridian shall provide to AHT, on a quarterly basis, a written report of all Services provided at the Designated Premises during the preceding calendar quarter. Such quarterly report shall include, at a minimum: (a) the total number of scans performed at each Clinic Location; (b) a breakdown of scans by service type (e.g., MRI, advanced diagnostic imaging); (c) a summary of payor mix (e.g., Medicare, Medicaid, commercial insurance, self-pay), presented in the aggregate and by Clinic Location; and (d) any other information reasonably requested by AHT for compliance monitoring purposes. Each quarterly report shall be delivered to AHT within thirty (30) days following the end of the applicable calendar quarter. The quarterly reports shall not include individually identifiable patient information except as permitted by applicable law and any applicable Business Associate Agreement between the parties.
Section 8.3 — Prohibition on Use of Referral Data in Rental Determination. Neither party shall use referral volume data, projected referral data, revenue data, scan volume data, or any other data reflecting the volume or value of business generated between the parties in determining, adjusting, or renegotiating the Fixed Monthly Rental. Any renegotiation, adjustment, or modification of the Fixed Monthly Rental must be based solely on an updated Fair Market Value opinion prepared by a qualified Independent Appraiser in accordance with Section 4.3 of this Agreement, and shall comply with the requirements of the AKS safe harbors and Stark Law exceptions referenced in Section 7.1. The quarterly reports provided under Section 8.2 are intended solely for compliance monitoring purposes and shall not be used for any purpose related to the determination of the Fixed Monthly Rental.
ARTICLE IX — INSURANCE AND INDEMNIFICATION
Section 9.1 — Meridian Insurance Requirements. Meridian shall procure and maintain, at its sole cost and expense, throughout the Term of this Agreement (including any Renewal Term), the following insurance coverages:
(a) Commercial General Liability Insurance. Commercial general liability insurance, including coverage for premises liability, products-completed operations liability, and contractual liability, with minimum limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate. AHT shall be named as an additional insured on such policy.
(b) Professional Liability Insurance. Professional liability (malpractice) insurance covering Meridian and its physicians, technologists, and other clinical personnel providing Services at the Designated Premises, with minimum limits of not less than One Million Dollars ($1,000,000) per claim and Three Million Dollars ($3,000,000) in the aggregate. If such professional liability insurance is written on a "claims-made" basis, Meridian shall maintain tail coverage for a period of not less than three (3) years following the expiration or earlier termination of this Agreement.
(c) Workers' Compensation Insurance. Workers' compensation insurance in the amounts required by the laws of each state in which Meridian's employees perform Services under this Agreement, together with employer's liability insurance with minimum limits of not less than Five Hundred Thousand Dollars ($500,000) per accident.
(d) Automobile Liability Insurance. Automobile liability insurance covering all owned, hired, and non-owned vehicles used by Meridian in connection with the provision of Services, with minimum limits of not less than One Million Dollars ($1,000,000) combined single limit per accident.
Meridian shall provide AHT with certificates of insurance evidencing the required coverages and endorsements prior to the Commencement Date and annually thereafter upon renewal of such policies. All insurance policies maintained by Meridian pursuant to this Section 9.1 shall be issued by insurance companies rated "A-" or better by A.M. Best Company. Each such policy shall provide that it may not be cancelled or materially changed without at least thirty (30) days' prior written notice to AHT.
Section 9.2 — AHT Insurance Requirements. AHT shall maintain, at its sole cost and expense, throughout the Term of this Agreement, its existing property insurance and commercial general liability insurance covering the Designated Premises and the Clinic Locations, in amounts consistent with AHT's customary insurance program and in compliance with the requirements of any mortgage, lease, or other agreement applicable to the Clinic Locations. AHT shall provide Meridian with certificates of insurance evidencing such coverages upon reasonable request.
Section 9.3 — Mutual Indemnification. Each party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its respective officers, directors, managers, members, employees, agents, successors, and permitted assigns (collectively, the "Indemnified Parties") from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising out of or related to:
(a) any breach by the Indemnifying Party of any representation, warranty, covenant, or obligation under this Agreement;
(b) any negligent act or omission or willful misconduct of the Indemnifying Party or any of its officers, directors, managers, members, employees, agents, or contractors in connection with this Agreement or the performance of obligations hereunder; or
(c) any violation by the Indemnifying Party of any applicable federal, state, or local law, regulation, or ordinance, including without limitation the AKS, the Stark Law, HIPAA, and applicable state healthcare fraud and abuse laws.
The obligations of the Indemnifying Party under this Section 9.3 shall be conditioned upon the Indemnified Party providing the Indemnifying Party with (i) prompt written notice of any claim or proceeding giving rise to an indemnification obligation, (ii) reasonable cooperation in the defense of such claim, and (iii) the right to control the defense and settlement of such claim, provided that the Indemnifying Party shall not settle any claim in a manner that imposes any obligation or liability on the Indemnified Party without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld.
Section 9.4 — Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the other party for any consequential, incidental, special, indirect, exemplary, or punitive damages arising out of or related to this Agreement or the performance or non-performance of obligations hereunder, regardless of whether such damages are based on contract, tort, strict liability, or any other theory, and regardless of whether such party has been advised of the possibility of such damages. This limitation shall not apply to (a) a party's indemnification obligations under Section 9.3 with respect to third-party claims, (b) a party's breach of its confidentiality obligations under Article X, or (c) a party's willful misconduct or fraud.
ARTICLE X — CONFIDENTIALITY
Section 10.1 — Confidential Information. Each party (the "Receiving Party") acknowledges that, in connection with the negotiation, execution, and performance of this Agreement, it may receive or have access to confidential and proprietary business information of the other party (the "Disclosing Party"), including without limitation financial information, business plans, pricing information, patient volume data, referral data, operational strategies, and trade secrets (collectively, "Confidential Information"). The Receiving Party shall: (a) maintain all Confidential Information of the Disclosing Party in strict confidence; (b) not disclose any Confidential Information to any third party except as expressly permitted herein; and (c) use the Disclosing Party's Confidential Information solely for the purposes contemplated by this Agreement. The Receiving Party shall protect the Disclosing Party's Confidential Information using at least the same degree of care that it uses to protect its own confidential information of like nature, but in no event less than a reasonable degree of care. Patient information, including Protected Health Information as defined under HIPAA, shall be maintained in accordance with all applicable privacy and security laws, including HIPAA and the HITECH Act, and any applicable Business Associate Agreement between the parties.
Section 10.2 — Permitted Disclosures. Notwithstanding the foregoing, this Agreement and its terms are confidential and shall not be discl

FACILITY ACCESS AGREEMENT

ARBOR HEALTH TECHNOLOGIES INC.

MERIDIAN DIAGNOSTICS LLC

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