Exhibit 10.9
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the or this “Sublease”) is entered into as of the 3 day of November, 2018, by and between Intuitive Health of Hamilton County, LLC, a Delaware limited liability company having an address at 5700 Granite Parkway, Suite 455, Plano, Texas 75024 (“Sublessor”) and Riverview Health, an Indiana county hospital having an address of 395 Westfield Road, Noblesville, Indiana 46060 (“Subtenant”).
WITNESSETH:
WHEREAS, EQ Hazel Development, LLC, an Indiana limited liability company; Thomas W. Moore, Trustee of the Joan M. Moore Trust dated December 2, 2016; and Four Moore Investments, LLC, as tenants in common (collectively, the “Landlord”), and Sublessor, as tenant/lessee, entered into a Lease Agreement of even date herewith (the “Lease”), a copy of which is set forth on Exhibit “A” attached hereto and incorporated herein by reference for all purposes (and which has been examined by Subtenant), pursuant to which Landlord leased to Sublessor all the land and the improvements to be constructed thereon (collectively, the “Premises”) described in the Lease as, including, without limitation, a building containing approximately 10,922 square feet (the “Building”); and
WHEREAS, Sublessor desires to sublet to Subtenant and Subtenant desire to sublet from Sublessor the entire Premises (the “Subleased Premises”).
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and promises contained in this Sublease and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in further consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
1. Sublease. Sublessor hereby rents and sublets the Subleased Premises to Subtenant, to have and to hold the same unto Subtenant, its successors and assigns for the term of this Sublease, subject to the terms and provisions hereof. Except as otherwise provided herein, Subtenant shall hold the Subleased Premises pursuant and subject to the same terms, conditions, covenants and agreements contained in the Lease and shall perform all such functions as are required to be performed by Sublessor, as tenant/lessee therein, as to the Subleased Premises and accruing during the Term (hereinafter defined). Except as otherwise provided herein, Subtenant hereby expressly assumes and agrees to keep, observe, perform and be bound by all of the conditions, covenants, and agreements contained in the Lease on the part of Sublessor to be kept, observed and performed pertaining to the Subleased Premises and accruing during the Term. This Sublease is and shall be subordinate to the Lease and to the matters to which the Lease is or shall be subject and subordinate. Except as otherwise provided herein, all of the terms and provisions of the Lease which are applicable to or binding upon Sublessor, as tenant/lessee thereunder, pertaining to the Subleased Premises and accruing during the Term, shall also be applicable to or binding upon Subtenant in the same manner as if such terms and provisions had been set forth in full herein. Except as otherwise provided herein, all provisions of the Lease pertaining to the Subleased Premises, accruing during the Term and that inure to the benefit of the Landlord, shall inure to the benefit of and be enforceable by Sublessor as against Subtenant.
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Sublessor grants to Subtenant the right to receive all of the services and benefits with respect to the Subleased Premises that are to be provided by the Landlord under the Lease. Subtenant acknowledges the following provisions of the Lease shall not apply to this Sublease: (i) Section 5.6 (“Expansion Right”) of the Lease; (ii) any rights specifically reserved by Landlord under the Lease; (iii) the right of Sublessor to have access at all reasonable times to the Subleased Premises upon reasonable prior written notice to Subtenant (as provided for in the Lease but no notice shall be required in an emergency); (iv) Subtenant’s possession and use of the Subleased Premises shall at all times be subject to such rights set forth in the foregoing items (i) and (ii); and (v) it has no rights to exercise any right to extend, renew or right of first offer or refusal or otherwise to expand the Subleased Premises or to receive any tenant improvement allowance or to exercise any termination rights afforded Sublessor under the Lease. Subtenant hereby releases Sublessor from all liability in connection with Landlord’s and/or Sublessor’s exercise of the rights set forth in the foregoing items (i) and (ii). All terms having their initial letters capitalized and not defined herein shall have the meanings set forth in the Lease. Notwithstanding any provision contained in the Lease to the contrary, the following shall apply with respect to the Subleased Premises:
(a) Term: The term (the “Term”) of this Sublease shall commence upon the Commencement Date described in the Lease (the “Commencement Date”) and shall continue through the Initial Term described in the Lease, unless earlier terminated by operation of law, the terms of the Lease or this Sublease or as may be extended as expressly provided below in this subparagraph (a). The Term of this Sublease shall not be extended or renewed by, nor shall Subtenant be entitled to the benefit of, any extension or renewal of the Lease pursuant to the terms thereof except as follows:
Renewal Options: If Sublessor exercises one or more Renewal Option as described in the Lease the Term of this Sublease shall be deemed to have been automatically extended for such periods. All references to the Term shall include the term of the Sublease as so extended by an Option, as applicable, described in the Lease.
If any Option Term is so exercised all terms and conditions of this Sublease shall apply during the Option Terms except that there shall be no further rights of renewal or extension and the annual base rent shall be determined as determined in accordance with the Lease.
(b) Annual Base Rent: The annual base rent shall be the product of the Rent described in the Lease multiplied by 1.15 and shall be payable from and after the Commencement Date throughout the Term.
(c) Additional Rent: As additional rent, Subtenant shall, within thirty (30) days of receipt of an invoice therefor from Sublessor, pay Sublessor the product of 1.15 multiplied by the amount of: (i) all Tax Expenses described in the Lease; (ii) all personal property taxes for Subtenant’s furnishings, fixtures and equipment (“Subtenant’s Personalty”); (iii) all of Sublessor’s costs to maintain, repair and improve the Subleased Premises described in Paragraph 4 hereinbelow; (iv) all utility bills for the Subleased Premises, including, without limitation, electricity, heat, gas, water, sewer, sprinkler, and telecom and data services; and (v) all costs of insurance maintained by Sublessor with
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respect to the Subleased Premises and Subtenant’s Personalty; and (vi) without duplication of all other additional rent being paid hereunder, any other amounts payable by Sublessor under the Lease.
(d) Rent/Late Charges: All amounts described in the foregoing subparagraphs (b) and (c) are collectively referred to herein as “Rent”. Except as set forth above, Rent for a partial month shall be prorated on a daily basis using a thirty (30) day month. Rent shall be paid without notice or demand, and without deduction, abatement (except to the extent Rent may be abated under the Lease with respect to the Subleased Premises), counterclaim or setoff of any amount or for any reason. Rent shall be paid to Sublessor in lawful money of the United States at the address of Sublessor set forth above or to such other person and/or at such other address as Sublessor may from time to time designate by notice to Subtenant. No payment by Subtenant or receipt of payment by Sublessor of any amount less than the amount stipulated to be paid hereunder shall be deemed other than on account of the earliest stipulated Rent; nor shall any endorsement or statement on any check or letter be deemed an accord and satisfaction, and Sublessor may accept any check or payment without prejudice to Sublessor’s right to recover the balance due or to pursue any other remedy available to Sublessor. If payment of any Rent shall not have been paid by the seventh (7") day after the date on which such amount was due and payable a charge equal to the amount described in Section 3.3 of the Lease shall be due and payable by Subtenant. Said charges are hereinafter referred to as “Late Charges”. The Late Charges for any month shall be payable on the first day of the following month, and if Subtenant defaults in the payment of any Late Charges, Sublessor shall have (in addition to all other remedies) the same rights as provided in this Sublease (including the provisions incorporated by reference) for nonpayment of Rent. Nothing in this subparagraph (d) contained and no acceptance of Late Charges by Sublessor shall be deemed to extend or change the time for payment of Rent.
(e) Security Deposit: None.
(f) Sublessor’s Rights: Any non-liability provisions in the Lease for the benefit of the Landlord shall be deemed to inure to the benefit of Sublessor and any other person intended to be benefited by said provision. Any right of the Landlord under the Lease of access or inspection and any right of the Landlord under the Lease to do work in the Subleased Premises or in the Building and any other rights of the Landlord under the Lease and respective rules and regulations shall be deemed to inure to the benefit of Sublessor and any other person intended to be benefited by said provision, for the purpose of incorporation by reference in this Sublease.
(g) Subtenant’s Representations: Subtenant represents that (i) it has full power, authority and right to execute and deliver this Sublease and to observe and perform the provisions hereof, and the execution and delivery of this Sublease and the obligations of Subtenant hereunder have been duly authorized by all necessary action on the part of Subtenant, and (ii) this Sublease has been duly executed and delivered by Subtenant and, constitutes legal, valid and binding obligations of Subtenant, enforceable against it in accordance with the terms hereof.
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(h) Confidentiality: Subtenant and Sublessor acknowledge that each is a health care entity that must protect and maintain the confidentiality of its patient information, documents and files which are stored in both physical and electronic form in and about the Premises and the Subleased Premises (“Confidential Information”). Notwithstanding anything to the contrary in this Sublease, Subtenant and Sublessor shall maintain, and shall use its best efforts to cause their respective agents, employees and invitees to maintain, the confidentiality of all Confidential Information, including, but not limited to, Confidential Information which may be located in any areas of the Subleased Premises to which Sublessor shall have access and any common areas to which Subtenant has access or on or along Subtenant’s path of necessary travel through the Premises.
2. Possession of Subleased Premises: As of the Commencement: Date, Subtenant shall accept the Subleased Premises “as is”, “where is” and “with all faults” and in its then-current condition, subject only to those representations and warranties regarding the Subleased Premises as are received by Sublessor from the Landlord under the Lease, which Subtenant may cause Sublessor to seek to enforce against the Landlord upon a written request from Subtenant. Other than the representations and warranties passed through from the Landlord under the Lease, Sublessor makes no other representation or warranty, express or implied, of any kind regarding the Subleased Premises, including, without limitation, the size of the Subleased Premises. Except as otherwise explicitly granted in an equipment lease or other subsequent written contract between Sublessor and Subtenant, Sublessor shall have no obligation to furnish, render or supply any work, labor, services, material, fixtures, equipment or decorations to make the Subleased Premises ready for Subtenant’s occupancy or grant any construction or improvement allowances or free or reduced rent. Subtenant shall be conclusively presumed to have accepted the Subleased Premises in the condition existing on the date Subtenant first takes possession and to have waived all claims against Sublessor relating to such condition; provided, that Subtenant’s ongoing right to cause Sublessor to seek to enforce the Landlord’s representations and warranties regarding the Subleased Premises under the Lease against the Landlord shall not be waived by Subtenant’s acceptance of the Subleased Premises.
3. Use. Subtenant shall use the Subleased Premises only for the purposes set forth in the Lease. Subtenant shall not do or suffer anything to be done upon the Subleased Premises which shall cause an injury to the Subleased Premises, or violate any zoning, building, health, safety or other code or ordinance of any federal, state or local unit of government which has jurisdiction over the Subleased Premises and Subtenant shall hold Sublessor harmless against any and all costs, expenses, losses or damages incurred, suffered, or imposed on Sublessor to the extent as a result of use of the Subleased Premises by Subtenant in violation of any such laws or in default (beyond applicable grace and cure periods) of the terms of the Lease.
4, Maintenance. Subtenant shall be responsible for maintaining and keeping the Subleased Premises in good repair and in a clean and orderly condition and, in addition, shall assume all obligations of Sublessor under the Lease related to the maintenance and repair of the Subleased Premises. Upon expiration of the Term hereof, Subtenant shall deliver the Subleased Premises to Sublessor, broom clean and in the same condition as at the Commencement Date, ordinary wear and tear and casualty damage excepted. While Sublessor shall have no obligations whatsoever to
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perenne pen ie pen np NRT t NA e TERNAL A IE
Subtenant with respect to the Subleased Premises beyond those expressly provided in this Sublease and Subtenant shall have no obligations to maintain and repair the Subleased Premises in excess of the obligations of Sublessor as set forth in the Lease, Sublessor shall, on Subtenant’s behalf, arrange for routine, seasonal and periodic maintenance of the Subleased Premises as may be necessary or additionally desired by Subtenant. In addition, upon receipt of notice from Subtenant of the need for a repair or improvement to the Subleased Premises, Sublessor shall cause such repair or improvement to be made. Subtenant shall pay Sublessor for such maintenance, repair and improvements as described in Paragraph 1(c) hereinabove. Sublessor shall not be responsible for any failure or interruption, for any reason whatsoever, except any intentional actions of Sublessor, of the services or facilities that may be appurtenant to or supplied at the Building by the Landlord under the Lease or otherwise, including, without limitation, heat, air conditioning, water, electricity, elevator service and cleaning service, if any; and no failure to furnish, or interruption of, any such services or facilities shall give rise to any (a) abatement, diminution or reduction of Subtenant’s obligations under this Sublease except to the extent of any abatement, diminution or reduction of the Sublessor’s obligations under the Lease with respect to the Subleased Premises, (b) constructive eviction, whether in whole or in part or (c) liability on the part of Sublessor (except as otherwise provided herein in the event of intentional acts of Sublessor).
5. Personal Property Taxes. Sublessor, on behalf of Subtenant, shall pay all taxes of any kind whatsoever becoming due with respect to Subtenant’s Personalty.
6. Telephone/Computer_ Lines and Subtenant Utilities/Services. Sublessor shall, on Subtenant’s behalf, provide Subtenant with computer and telephone equipment required by Subtenant. Subtenant shall provide Sublessor with appropriate information to enable Sublessor to contract with third parties to obtain such equipment and telephone, data and internet service to the Building. The cost of such equipment, telephone, data and internet service used by Subtenant as well as all utilities used or consumed on the Subleased Premises shall be paid to Sublessor as described in Paragraph 1(c) hereinabove.
7. Insurance. Sublessor shall, on Subtenant’s behalf, insure Subtenant’s Personalty on a full replacement cost basis. Subtenant shall provide the general liability insurance to the same extent that, and will procure and maintain such other insurance in connection therewith as, Sublessor is required to maintain under the Lease. All of Subtenant’s insurances shall be primary and non- contributory with any policies maintained by Sublessor and Landlord. Certificates for such general liability insurance shall name Sublessor, Landlord, and such other parties as Sublessor shall request and shall be provided to Sublessor prior to any entry into the Subleased Premises and thereafter as required by the Lease. Each party hereby waives claims against the other (and Subtenant hereby waives such claims against Landlord) for property damage and each party shall obtain from its insurance carrier a waiver of its right of subrogation.
8, Assignment and Sub-Subletting. Except for Permitted Transfers described in Section 16.2 of the Lease, Subtenant shall not, by operation of law or otherwise, assign, convey, mortgage, pledge, encumber or in any other manner transfer (whether voluntary or otherwise) this Sublease or any interest therein, or sub-sublet the Subleased Premises or any part thereof or
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grant any concession or license or otherwise permit the use or occupancy of all or part thereof (collectively, “Transfer”) without the written consent of Sublessor. Provided Subtenant is not in default under this Sublease beyond the expiration of applicable notice and cure periods, and subject to Sublessor’s rights and Subtenant’s obligations pursuant to Paragraphs 8(b) and 8(c) hereinbelow, Sublessor shall not unreasonably withhold its consent to any proposed sub- subletting of all the Subleased Premises or an assignment of the Sublease. Without limiting the generality of the immediately preceding sentence, it is specifically agreed that it shall be reasonable for Sublessor to withhold its consent consistent with Section 16.1.1 of the Lease. Any Transfer, Sublessor’s consent thereto, the listing or posting of any name other than the Subtenant’s, or Sublessor’s collection or acceptance of rent from any transferee shall not be construed either as waiving or releasing Subtenant from any of its liabilities or obligations under this Sublease, as a principal and not as a guarantor or surety, or as relieving Subtenant or any transferee from the obligation of obtaining Sublessor’s prior written consent to any subsequent Transfer. As security for this Sublease, Subtenant hereby assigns to Sublessor the rent due from any transferee. For any period during which Subtenant is in default under this Sublease beyond the expiration of applicable notice and cure periods, Subtenant hereby authorizes and irrevocably directs each such transferee to pay said rent directly to Sublessor upon receipt of notice from Sublessor specifying same. Sublessor’s collection of such rent shall not be construed as an acceptance of such transferee as sub-subtenant. Subtenant shall pay to Sublessor an administrative fee equal to one thousand dollars ($1,000.00) plus all other expenses (including, without limitation, actual reasonable attorneys’ fees) incurred by Sublessor and Landlord in connection with the Subtenant’s request for Sublessor to give its consent to any transfer and Sublessor’s receipt of such sum shall be a condition to Sublessor providing such consent. Any Transfer shall, at Sublessor’s option, be effected on forms reasonably approved by Sublessor and Landlord. Subtenant shall deliver to Sublessor a fully-executed copy of each agreement evidencing a Transfer, and any document required by Sublessor evidencing Sublessor’s consent thereto, within ten (10) business days after Subtenant’s execution thereof.
(a) If at any time during the Term, Subtenant desires to Transfer this Sublease or all of the Subleased Premises, then in connection with Subtenant’s request to Sublessor for its consent thereto, Subtenant shall give notice to Sublessor in writing (“Subtenant’s Request Notice”) containing: the identity of the proposed assignee, subtenant or other party and a description of its business; the terms of the proposed assignment, subletting or other transaction (together with a copy of the proposed transfer document for same); the commencement date of the proposed assignment, subletting or other transaction (“Proposed Sub-sublease Commencement Date”); the most recent financial statement or other evidence of financial responsibility of such proposed transferee, and a certification executed by Subtenant and such party stating whether or not any premium or other consideration is being paid for the Transfer or other transaction.
(bv) ‘If any Transfer (whether by operation of law or otherwise, including without, limitation, an assignment pursuant to the provisions of the Bankruptcy Code or any other insolvency law) results in the payment of any amount in excess of the Rent and other charges due under this Sublease, then whether such excess be in the form of an increased monthly or annual rental, a lump sum payment, payment for the sale, transfer or lease of Subtenant’s fixtures, leasehold improvements, furniture and other personal property (in excess of the fair market value of such furniture and property), or any other form,
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Subtenant shall pay to Sublessor any such excess or other premium applicable to the Transfer after deduction of Subtenant’s reasonable transaction costs, which amount shall be paid by Subtenant to Sublessor as Rent upon such commercially reasonable terms as shall be specified by Sublessor and in no event later than ten (10) days after any receipt thereof by Subtenant. Acceptance by Sublessor of any payments due under this subparagraph (c) shall not be deemed to constitute approval by Sublessor of any Transfer, nor shall such acceptance waive any rights of Sublessor hereunder. Sublessor shall have the right to inspect and audit Subtenant’s books and records relating to any Transfer.
(c) All restrictions and obligations imposed pursuant to this Sublease on Subtenant shall be deemed to extend to any transferee, and Subtenant shall cause such person or entity to comply with such restrictions and obligations. Any assignee shall be deemed to have assumed obligations as if such assignee had originally executed this Sublease and at Sublessor’s request shall execute promptly a document confirming such assumption. Each sub-sublease is subject to the condition that if the Term is terminated or Sublessor succeeds to Subtenant’s interest in the Subleased Premises by voluntary surrender or otherwise, at Sublessor’s option, the sub-subtenant shall be bound to Sublessor for the balance of the term of such sub-sublease and shall attorn to and recognize Sublessor as its sublandlord under the then executory terms of such sub-sublease.
(d) ‘If Sublessor grants its consent or in the event of a Transfer not requiring Sublessor’s consent, Subtenant shall not undertake a Transfer without first also complying with the provisions of Article 16 of the Lease. Obtaining the consent of the Landlord required under the Lease shall be the obligation of the Subtenant and Subtenant shall hold Sublessor harmless from any failure by the Landlord to grant its consent. In the event that Subtenant attempts or purports to Transfer all or a part of the Subleased Premises to any other party in violation of the terms of this Paragraph 8, such action shall constitute a default under the terms of this Sublease, entitling Sublessor to exercise all remedies provided at law, in equity or under this Sublease. Notwithstanding any Transfer, Subtenant shall remain primarily liable for, and shall not be relieved of, its obligations under this Sublease and a consent to one Transfer shall not constitute a consent to a further Transfer or waiver of the provisions of this Paragraph 8.
9. Alterations. Except as provided in Article 5 of the Lease, Subtenant shall not make or cause, suffer or permit the making of any alteration, addition, change, replacement, installation or addition (collectively “Alterations”) in or to the Subleased Premises without first obtaining the prior written consent of Sublessor in each instance, which consent Sublessor may withhold in _ its sole and absolute discretion. Upon the expiration or earlier termination of the Term, Subtenant shall, at its sole cost and expense, remove all of its signage and any Alterations made by Subtenant (either without Sublessor’s consent or, if made with Sublessor’s consent and, at the time of giving such consent, Sublessor required such removal). If Sublessor grants its consent, Subtenant shall then comply with the provisions of Article 5 of the Lease which is a condition of Sublessor’s consent and, in all events, (and notwithstanding the terms of the Consent) Subtenant shall be solely responsible for all fees and charges imposed by Landlord in connection with any Alterations (including, without limitation, the Initial Alterations) proposed by Subtenant. In the event that the Landlord (or any designee of the Landlord) shall succeed to Sublessor’s interest
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under this Sublease (whether by reason of a termination of the Lease or other exercise of the Landlord’s rights under the Lease), then the foregoing provisions of this Paragraph 9 shall be of no force and effect, and Subtenant’s rights hereunder shall instead be governed by the provisions of Article 5 of the Lease.
10. Default. The occurrence of any of the following events as a result of Subtenant’s acts or omissions shall constitute an event of default entitling Sublessor to exercise those rights specified in the Lease as available to the Landlord thereunder and any rights provided by law:
(a) failure to pay any installment of Rent as and when the same shall become due and payable and such failure continues for five (5) days after notice from Sublessor thereof; provided, however, Sublessor shall not be required to give such notice more than twice in any twelve (12) month period during the Term; or
(b) breach of any other term, condition or covenant of this Sublease and such breach continues for a period of 30 days after written notice to Subtenant unless such breach is not susceptible of cure within such 30-day period in which event no default shall occur if Subtenant commences cure within such 30-day period and thereafter proceeds in good faith and diligence to effect such cure; provided, however, Sublessor shall not be required to give such written notice more than twice during any twelve (12) month period during the Term with respect to each such specific breach.
11. Sublessor’s Right to Cure Defaults of Subtenant. If Subtenant shall fail to fulfill any of its obligations under this Sublease, Sublessor may, but shall not be obligated to, fulfill any obligations of Subtenant hereunder and if Sublessor shall incur any costs in doing so, such costs shall be additional Rent due from Subtenant on the first to occur of demand, or the date of the next Rent payment, together with interest at the annual rate of the Wall Street Journal’s then highest “prime rate” plus three percent (3%) or the highest rate allowed by law, whichever is less, from the date expended until the date repaid.
12. Indemnity. Sublessor shall be liable to Subtenant and any of its agents, employees, servants, or invitees for any damage to persons or property due to the condition, design, or any defect in the Building or its mechanical systems that may exist or subsequently occur solely to the extent and in such dollar amounts as Sublessor receives indemnification or other remedy or recovery from Landlord with respect to the same circumstances or events, and Sublessor agrees to pursue all remedies available to it against Landlord under the Lease. To the fullest extent permitted by applicable law and regardless of any insurance coverage maintained by either party, Subtenant agrees that it will defend, indemnify and hold Sublessor harmless from and against all suits, claims, actions, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses of every kind by reason of any breach or violation of any term or condition on the part of the Subtenant under this Sublease provided, however, if Subtenant is defending Sublessor (and any other indemnified party required to be defended) with reputable counsel selected by Subtenant or Subtenant’s insurer, Subtenant shall not be liable for the separate attorneys’ fees of Sublessor or of any indemnified party in the absence of a manifest conflict of interest. Additionally, and regardless of any insurance coverage maintained by either party, Subtenant agrees to defend, indemnify and hold Sublessor harmless from all suits, claims,
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actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) asserted against the Sublessor on account of injuries to person or damage to property caused, either proximately or remotely, by any act or omission, whether negligent or not, of Subtenant, or any of its agents, servants, employees, contractors, or invitees (while such invitees are on the Subleased Premises) or any other person entering upon the Subleased Premises under or with the expressed or implied invitation of Subtenant, or if any such injury or damage may by any other way arise from or out of the occupancy or use of Subtenant, its agents, servants, employees, contractors or invitees of the Subleased Premises, provided, however, if Subtenant is defending Sublessor (an any other indemnified party required to be defended) with reputable counsel selected by Subtenant or Subtenant’s insurer, Subtenant shall not be liable for the separate attorneys’ fees of Sublessor or of any indemnified party in the absence of a manifest conflict of interest. The foregoing indemnification obligation and any other indemnification obligation by Subtenant contained herein shall not apply to the extent of the negligent acts or omissions or intentional acts of Sublessor, or its employees, agents or representatives. Notwithstanding anything contained herein to the contrary, Subtenant’s obligation to defend, indemnify and/or hold Sublessor or any other party harmless shall be limited in substance by statutes designated to protect and limit Subtenant as an instrumentality of the State of Indiana (e.g., actions and conditions as to which Subtenant is immunized by the Indiana Medical Malpractice Act, Indiana Tort Claims Act, dollar limits stated therein, and the exemption from punitive damages, and the continued ability to defeat claims by reason of contributory negligence or fault of the claimant), such that Subtenant’s liability to indemnify and hold harmless shall not exceed what might have been Subtenant’s liability to claimant if sued directly by claimant and all appropriate defenses had been raised by Subtenant.
13. Notices. All notices, consents, approvals, demands, requests and other communications made or required to be given pursuant hereto shall be in writing and shall be delivered in hand, mailed by United States certified mail, postage prepaid, and return receipt requested, or sent by overnight courier (e.g., Federal Express or similar courier), or sent by email or facsimile and confirmed by delivery via courier or postal service, addressed as follows:
(a) Ifto Sublessor, to: —_Intuitive Health of Hamilton County, LLC 5700 Granite Parkway, Suite 455 Plano, Texas 75024 Attn: President
with a copy to: Foley & Lardner, LLP 111 Huntington Avenue, Suite 2500 Boston, MA 02109 Attn: Michael L. Blau, Esq. and Adria Warren, Esq. E-Mail: MBlau@foley.com and A Warren@foley.com
If to Subtenant, to: Riverview Health 395 Westfield Road Noblesville, IN 46060 Attn: Chief Executive Officer
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E-Mail: swarren@riverview.org
With a copy to: Krieg DeVault LLP 12800 N. Meridian Street, Suite 300 Carmel, IN 46032 Attn: Brian M. Heaton, Esq. E-Mail: bheaton@kdlegal.com
or to such other address for notice as either party shall last have furnished in writing to the party giving the notice. Any such notice or demand shall be deemed to have been duly given or made and to have become effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is directed, at the time of the receipt thereof or the refusal of delivery by such party or the sending of such facsimile and (ii) if sent as aforesaid by U.S. mail, on the third business day following the mailing thereof. Either party may change the address for notices by notice in writing given to the other party in the manner hereinabove described.
(bv) Each party hereto shall promptly give the other party a copy of each notice received from, or sent to, the Landlord and relating to the Subleased Premises.
14. Casualty. If the Subleased Premises are damaged by fire or other casualty, and Landlord or Sublessor, pursuant to the terms of the Lease, shall elect to terminate the Lease, this Sublease shall cease and terminate on the date termination of the Lease is effective and Rent shall be equitably apportioned consistent with the terms of the Lease. In all other cases of casualty, if the damage has rendered the Subleased Premises untenantable, in whole or in part, there shall be an apportionment of the Rent in the same manner and to the extent as provided in the Lease and afforded to Sublessor. In no event shall Sublessor have any obligation to repair any portion of the Subleased Premises. Sublessor shall promptly provide to Subtenant a copy of any casualty notices received from or given to Landlord pursuant to the Lease to the extent any such notice affects the Subleased Premises.
15. Condemnation. If the Subleased Premises, or a material part thereof, shall be condemned or taken in any manner for any public or quasi-public use, Sublessor or Subtenant shall have the right to terminate this Sublease on the effective date of such taking by prompt written notice to the other of its desire to terminate this Sublease. Subtenant shall have no right to share in any condemnation award (but shall have the right to file a separate claim with respect to its moving expenses and personal property provided said filing would not result in a reduced award to Sublessor), but shall execute any reasonable documents that may be required to facilitate collection by Sublessor and/or Landlord of any and all such awards. Sublessor shall promptly provide to Subtenant a copy of any taking notices received from or given to Landlord pursuant to the Lease to the extent any such notice affects the Subleased Premises.
16. Estoppel Certificates. Subtenant shall, within ten (10) business days after each and every request by Sublessor, execute, acknowledge and deliver to Sublessor, or any other party designated by Sublessor, a statement in writing (a) certifying that this Sublease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and
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effect as modified, and stating the modifications), (b) specifying the dates to which the Rent has been paid, (c) stating whether or not, to the best knowledge of Subtenant, Sublessor is in default in performance or observance of its obligations under this Sublease, and, if so, specifying each such default, and (d) such other information with respect to this Sublease as Sublessor may reasonably request. Any such statement delivered pursuant to this Paragraph 16 may be relied upon by Landlord, any prospective assignee or transferee of the leasehold estate under the Lease, or any other person designated by Sublessor. Sublessor shall, within ten (10) business days after each and every reasonable request by Subtenant, execute, acknowledge and deliver to Subtenant, or any other party designated by Subtenant, a statement in writing (a) certifying that this Sublease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified, and stating the modifications), (b) specifying the dates to which the Rent has been paid, (c) stating whether or not, to the best knowledge of Sublessor, Subtenant is in default in performance or observance of its obligations under this Sublease, and, if so, specifying each such default, and (d) such other information with respect to this Sublease as Subtenant may reasonably request. Any such statement delivered pursuant to this Paragraph 16 may be relied upon by Landlord, any prospective assignee or transferee of the leasehold estate under the Lease, or any other person designated by Subtenant.
17. Waiver of Jury Trial and Right to Counterclaim. Sublessor and Subtenant hereby waive all right to trial by jury in any summary or other action, proceeding or counterclaim arising out of or in any way connected with this Sublease, the relationship of Sublessor and Subtenant, the Subleased Premises and the use and occupancy thereof, and any claim of injury or damages. Subtenant also hereby waives all right to assert or interpose a counterclaim in any summary proceeding or other action or proceeding to recover or obtain possession of the Subleased Premises unless such counterclaim shall be compulsory according to applicable law.
18. No Waiver. The failure of either party to insist in any one or more cases upon the strict performance or observance of any obligation of the other party hereunder or to exercise any right or option contained herein shall not be construed as a waiver or relinquishment for the future of any such obligation of the bound party or any right or option of the benefited party. Sublessor’s receipt and acceptance of Rent, or Sublessor’s acceptance of performance of any other obligation by Subtenant, with knowledge of Subtenant’s breach of any provision of this Sublease, shall not be deemed a waiver of such breach. No waiver by either party of any term, covenant or condition of this Sublease shall be deemed to have been made unless expressed in writing and signed by the party to be bound by such waiver.
19. Complete Agreement. There are no representations, agreements, arrangements or understandings, oral or written, between the parties relating to the subject matter of this Sublease which are not fully expressed in this Sublease. This Sublease cannot be changed or terminated orally or in any manner other than by a written agreement executed by both parties.
20. Successors and Assigns. The provisions of this Sublease, except as herein otherwise specifically provided, shall extend to, bind and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and permitted assigns.
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21. Interpretation. This Sublease shall be governed by and construed in accordance with the laws of the State of Indiana. If any provision of this Sublease or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Sublease and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. The captions, headings and titles, if any, in this Sublease are solely for convenience of reference and shall not affect its interpretation. This Sublease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Sublease to be drafted. If any words or phrases in this Sublease shall have been stricken out or otherwise eliminated whether or not any other words or phrases have been added, this Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated were never included in this Sublease and no implication or inference shall be drawn from the fact that said words or phrases were so stricken out or otherwise eliminated. Each covenant, agreement, obligations or other provision of this Sublease shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making same, not dependent on any other provision of this Sublease unless otherwise expressly provided. All terms and words used in this Sublease, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. The word “person” as used in this Sublease shall mean a natural person or persons, a partnership, a corporation, a limited liability company, or any other form of business or legal association or entity. In the event of a conflict or inconsistency between the Lease and this Sublease, this Sublease shall govern and prevail.
22. Exculpation. Sublessor shall have no liability whatsoever for any act or omission to act, by the Landlord or for the failure by Landlord to perform any obligation under the Lease.
23. Holdover. If Subtenant shall hold over possession of the Subleased Premises after the end of the Term hereof, Subtenant shall be deemed to be occupying as a tenant-at-sufferance. In such event, Subtenant shall (i) indemnify and hold harmless Sublessor from and against all direct damages suffered or incurred by Sublessor and (ii) pay Sublessor such increased percentage of the rent, additional rent and all other charges owed by Sublessor pursuant to the Lease during the period of such occupancy. The provisions of this Paragraph 23 shall not constitute a waiver by Sublessor of any re-entry rights of Sublessor available under this Sublease or by law.
24. Indemnities. All of Subtenant’s and Sublessor’s indemnities described and/or incorporated herein shall survive the expiration or earlier termination of this Sublease.
25. Attorneys’ Fees. In the event an action is commenced to enforce or interpret this Sublease, the prevailing party shall recover reasonable attorneys’ fees and costs as provided in this Sublease, or as awarded by the court in which the action is pending, or as awarded by any other court of competent jurisdiction in an action commenced for such purpose.
26. Real Estate Brokers. Subtenant and Sublessor each warrants and represents that it has not dealt with any real estate broker and/or salesman in connection with the negotiation or execution of this Sublease. Subtenant agrees to defend, indemnify and hold harmless the Sublessor from and against any and all costs, expenses, attorneys’ fees or liability for any compensation,
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commission and charges claimed by any real estate broker and/or salesman, due to the acts of Subtenant or Subtenant’s representatives. Sublessor agrees to defend, indemnify and hold harmless the Subtenant from and against any and all costs, expenses, attorneys’ fees or liability for any compensation, commission and charges claimed by any real estate broker and/or salesman due to the acts of Sublessor or Sublessor’s representatives.
27. No Individual Liability. Notwithstanding anything to the contrary in this Sublease contained, in no event shall any of the officers, trustees, directors, partners, owners, beneficiaries, joint venturers, members, stockholders, or other principals or representatives, and the like, disclosed or undisclosed of Sublessor, be personally liable to Subtenant or any other person or entity, for any liability, obligation or matter whatsoever arising under or related, directly to this Sublease, all such liability being specifically limited to Sublessor.
28. Time is of the essence. Time is of the essence with respect to all terms and conditions of this Sublease.
29. OFAC. Subtenant warrants and represents that it is not the subject of any governmental inquiries, investigations or proceedings as to Subtenant’s business practices, with respect to issues related to the Patriot Act, or otherwise. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), U.S. companies are required to ensure that they do not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”), generated by the Office of Foreign Assets Control of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Person”) are updated from time to time. Subtenant hereby acknowledges and agrees that Subtenant’s inclusion on the List as a Blocked Person at any time during the Term shall be an Event of Default hereunder for which Sublessor may terminate this Sublease. The provisions of this Paragraph 30 shall survive termination of this Sublease. Subtenant represents that, (i) neither Subtenant nor any person or entity that directly owns ten percent (10%) or greater equity interest in it nor any of its officers, directors, or managing members is a person or entity (each, a “Prohibited Person”) with whom U.S. Person or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the U.S. Treasury (including those named on OFAC’s Specifically Designated and Blocked Person List) or under Executive Order 13224 (the “Executive Order”) signed on September 24, 2001, and entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit Threaten to Commit, or Support Terrorism”), or other governmental action, and (ii) that throughout the Term of this Sublease, Subtenant shall comply with the Executive Order.
[END OF PAGE. SIGNATURE PAGES FOLLOW IMMEDIATELY]
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EXECUTED as of the day and year first above written.
SUBLESSOR:
INTUITIVE HEALTH OF HAMILTON COUNTY, LLC
SUBTENANT:
RIVERVIEW HEALTH
By: v
Name: Sex C.i2. Title: S(DEOST
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EXHIBIT A
LEASE
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