Exhibit
10.32


 


LEASE AGREEMENT




Between


 


CORPOREX INVERNESS, LLC




LANDLORD


 


and


 


OnCURE MEDICAL CORP.


 


TENANT


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  PREMISES

  	
   

  
	
  2.

  	
  TERM

  	
   

  
	
  3.

  	
  CONDITION OF AND IMPROVEMENTS TO PREMISES

  	
   

  
	
  4.

  	
  OCCUPANCY PRIOR TO TERM

  	
   

  
	
  5.

  	
  SECURITY DEPOSIT

  	
   

  
	
  6.

  	
  BASE RENT

  	
   

  
	
  7.

  	
  ESCALATION OF BASE RENT

  	
   

  
	
  8.

  	
  ADDITIONAL RENT

  	
   

  
	
  9.

  	
  SERVICES AND UTILITIES

  	
   

  
	
  10.

  	
  USE OF PREMISES

  	
   

  
	
  11.

  	
  PARKING

  	
   

  
	
  12.

  	
  CONTINUANCE OF OCCUPANCY

  	
   

  
	
  13.

  	
  REPAIRS/RESTORATION

  	
   

  
	
  14.

  	
  ALTERATIONS

  	
   

  
	
  15.

  	
  FIXTURES AND UNAUTHORIZED USE OF PREMISES

  	
   

  
	
  16.

  	
  WARRANTY OF QUIET ENJOYMENT

  	
   

  
	
  17.

  	
  INTERRUPTION OF SERVICE

  	
   

  
	
  18.

  	
  RIGHTS RESERVED BY LANDLORD

  	
   

  
	
  19.

  	
  FIRE OR OTHER CASUALTY

  	
   

  
	
  20.

  	
  INSURANCE

  	
   

  
	
  21.

  	
  INDEMNIFICATION

  	
   

  
	
  22.

  	
  BROKER’S COMMISSION

  	
   

  
	
  23.

  	
  SUBORDINATION AND ATTORNMENT

  	
   

  
	
  24.

  	
  ASSIGNMENT AND SUBLETTING

  	
   

  
	
  25.

  	
  EMINENT DOMAIN

  	
   

  
	
  26.

  	
  ESTOPPEL CERTIFICATE

  	
   

  
	
  27.

  	
  DEFAULT; REMEDIES UPON DEFAULT

  	
   

  
	
  28.

  	
  HOLDING OVER

  	
   

  
	
  29.

  	
  REDELIVERY OF PREMISES

  	
   

  
	
  30.

  	
  CUMULATIVE REMEDIES

  	
   

  
	
  31.

  	
  INTEREST ON PAST DUE OBLIGATIONS

  	
   

  
	
  32.

  	
  ATTORNEYS’ FEES

  	
   

  
	
  33.

  	
  NOTICES

  	
   

  
	
  34.

  	
  LANDLORD’S LIABILITY

  	
   

  
	
  35.

  	
  INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS

  	
   

  
	
  36.

  	
  WAIVERS

  	
   

  
	
  37.

  	
  SEVERABILITY

  	
   

  
	
  38.

  	
  RECORDING

  	
   

  
	
  39.

  	
  BINDING EFFECT

  	
   

  
	
  40.

  	
  AUTHORITY

  	
   

  
	
  41.

  	
  CONFLICT

  	
   

  



 

















 


TABLE
OF CONTENTS


 


	
  42.

  	
  GOVERNING LAW; FORUM

  
	
  43.

  	
  JOINT AND SEVERAL OBLIGATIONS

  
	
  44.

  	
  INTENTIONALLY DELETED

  
	
  45.

  	
  MECHANIC’S LIEN

  
	
  46.

  	
  FINANCIAL STATEMENTS

  
	
  47.

  	
  JOINT VENTURE

  
	
  48.

  	
  HAZARDOUS SUBSTANCES

  
	
  49.

  	
  RIGHT OF FIRST REFUSAL

  
	
  50.

  	
  RIGHT OF FIRST OFFER

  
	
  51.

  	
  RENEWAL OPTION

  
	
  52.

  	
  ADDITIONAL EXHIBITS

  
	
  53.

  	
  FURNITURE

  
	
  54. STORAGE SPACE

  



 


EXHIBITS


 


	
  A.

  	
  PREMISES

  
	
  B.

  	
  DEVELOPED PARCEL

  
	
  C.

  	
  ALTERATIONS AND IMPROVEMENTS

  
	
  D.

  	
  SCHEDULE OF RENT

  
	
  E.

  	
  CLEANING, JANITOR AND ROUTINE MAINTENANCE SERVICE

  
	
  F.

  	
  RULES AND REGULATIONS

  
	
  G.

  	
  PARKING

  
	
  H.

  	
  FURNITURE INVENTORY LIST

  
	
  I. FORM OF LANDLORD’S
  WAIVER AND CONSENT

  



 


2

















 


LEASE
AGREEMENT


 


188
INVERNESS DRIVE WEST OFFICE BUILDING

ENGLEWOOD, COLORADO


 


THI LEASE AGREEMENT, hereinafter known as the “Lease,”
entered into effect this 29th day of November, 2007, between
Corporex Inverness, LLC, a Colorado limited liability company, whose principal
place of business is 1125 17th Street, Suite 2300, Denver,
CO 80202, hereinafter known as “Landlord,” and OnCURE Medical Corp., a Delaware
corporation, whose principal place of business is 188 Inverness Drive West, Suite 650,
Englewood, CO 80112, hereinafter known as “Tenant.”


 


WITNESSETH:


 


In
consideration of the rent hereafter reserved and the covenants herein
contained, each party to this Lease hereby agrees:


 


(1)          PREMISES:


 


Landlord does hereby lease and demise to the Tenant
and Tenant does hereby take and rent from Landlord, the following premises:


 


Premises located on the 6’h floor known as Suite 650
of the office building located at 188 Inverness Drive West, Englewood, Colorado
80112, which, subject to adjustment in accordance with the terms below, shall
contain approximately 13,000 rentable square feet as identified in the
Preliminary Plans (as defined in Exhibit C) (the “Premises”). That
portion which is leased to Tenant is designated on the floor plan attached as Exhibit “A”
and is hereinafter known as the “Premises”. The entire building, of which the
Premises form a part, is hereinafter known as the “Building”. The Building and
other buildings which comprise Corporex Center at 188 Inverness Drive West, if
any, are situated upon a tract of land hereinafter known as the “Developed
Parcel,” which is more particularly described in Exhibit “B”. Landlord and
Tenant hereby acknowledge and agree that the actual rentable area of the
Premises shall be verified in accordance with the method of measurement
described below and shall be identified in the Final Plans (as defined in Exhibit C).
For purposes of this Lease, the actual rentable area of the Premises shall be
determined by Landlord and shall be calculated as follows: the total usable
area of the Premises determined according to the Building Owners and Managers
Association International Standard Method for Measuring Floor Space in Office
Buildings (ANSI/BOMA Z 65.1, 1996) multiplied by a factor of fifteen percent
(15%) (the “Final Square Footage”). Upon determination of the Final
Square Footage, the parties shall enter into an amendment to this Lease
confirming the Annual and Monthly Base Rents identified in Exhibit D and
Tenant’s Proportionate Share as defined in Article 8(a) below.


 

















 


(2)          TERM:


 


The term of this lease shall be for five (5) years,
and Tenant shall commence to pay rent for the Premises, on the earlier of the
date Tenant takes occupancy of the Premises in accordance with Paragraph 4 for
the purposes of doing business therein, or the later to occur of (i) March 1,
2008, or (ii) the date the Tenant Improvements described in Exhibit C
are Substantially Completed, as that term is defined in Exhibit C (the “Commencement
Date”). The term of this Lease shall be for sixty (60) months commencing upon
the Commencement Date (the “Term”); provided, however, in the event the Term
shall end on any day other than the last day of the final calendar month of the
Term, the Term shall be deemed to terminate on the last day of such month,
subject however to the terms of Paragraph (3) and further subject to any
of the conditions or covenants of this Lease or pursuant to law.


 


(3)          CONDITIONS OF AND
IMPROVEMENTS TO PREMISES:


 


(a) Immediately upon
full execution of this Lease by all parties hereto, Landlord shall commence any
alterations or improvements to the Premises indicated on the Final Plans as
described on Exhibit “C.” Subject to Force Majeure as defined below,
Landlord shall proceed diligently with said work and use its best efforts to
complete same by March 1, 2008, if this Lease is fully executed and Tenant
has provided Landlord with all required drawing approvals by November 30,
2007; but, if the alterations or improvements are not Substantially Completed
or if the Premises are not available for occupancy by said date, Tenant shall
have no claim against Landlord due to such delay, excepting only that subject
to Tenant’s early occupancy of the Premises pursuant to the terms of Paragraph
4 of this Lease, the Term of this Lease shall not commence until the Tenant
Improvements (as defined in Exhibit C) in the Premises is Substantially
Complete such that Tenant may occupy the Premises and conduct its business
therein, and the term shall expire sixty (60) months thereafter.
Notwithstanding the foregoing to the contrary, if the Tenant Improvements is
not Substantially Completed on or before April 30, 2008, then Tenant shall
have the right to terminate this Lease upon written notice delivered to
Landlord within ten (10) days thereafter. Failure of the Tenant to deliver
said written notice of termination shall operate as a waiver of the right to
terminate. “Substantial Completion” of construction of the Landlord’s
Work shall be defined as the date upon which the Landlord’s architect or other
consultant engaged by Landlord determines that the Landlord’s Work has been
substantially completed in accordance with the Final Plans (as defined in Exhibit C),
except for such items that constitute minor defects or adjustments which can be
completed after occupancy without causing any material interference with Tenant’s
use of the Premises (so called “Punch List” items). Any failure or delay
in (a) the issuance of a Certificate of Occupancy, Temporary Certificate
of Occupancy or other evidence of government approval, or (b) the timely
completion of the alterations or improvements to the Premises required to be
completed by Landlord hereunder, resulting from a Tenant Delay (as defined in Exhibit C)
or Tenant’s failure to complete any work to be performed by Tenant at the


 

















 


Premises or other delays in completion caused by
Tenant and/or its employees, agents, or contractors, including without
limitation, Tenant’s early access to the Premises as permitted pursuant to
Paragraph 4 of this Lease, shall not be a basis to delay the Commencement Date.


 


Immediately after the actual Commencement Date of
this Lease has been determined, if at variance with Paragraph (2), Landlord and
Tenant shall execute a written instrument fixing the commencement and
termination dates of this Lease.


 


Tenant taking possession shall be conclusive
evidence that Premises were then in good
order and satisfactory condition, except for the completion of Punch List
items, if any.


 


Notwithstanding anything else to the contrary in
this Paragraph (3), if Landlord is unable to complete the Tenant Improvements
due to Tenant Delay (as defined in Exhibit C), then the Term of this Lease
shall not be delayed.


 


Tenant shall not be responsible for payment of
Monthly Base Rent (defined below) for any period prior to the Commencement
Date.


 


As used herein “Force Majeure” shall mean the
occurrence of any event, including, without limitation, strikes, lock-outs,
labor troubles, inability to procure materials, failure of power, governmental
laws or regulations, riots, terrorist acts, war or any other action(s) which
prevents, hinders or delays the performance by either Landlord or Tenant of any
obligation imposed upon it pursuant to the Lease and/or this Paragraph (3). If
either Landlord or Tenant shall be delayed, hindered or prevented from
performance of any of its obligations pursuant to the Lease or this Paragraph (3) by
reason of Force Majeure, the time for performance of such obligation shall be
extended for a period equivalent to the period of such delay.


 


(4) OCCUPANCY
PRIOR TO TERM:


 


If permitted by law, Tenant may at no cost to Tenant
and without decreasing the rent abatement period described in Exhibit D,
with Landlord’s prior approval which shall be deemed given by Landlord’s
execution of this Lease, access the Premises for the period thirty (30) days
prior to the Commencement Date to begin installation of Tenant’s cabling,
wiring, work stations and similar fixtures and equipment; provided, however,
Tenant’s activities shall not disrupt, delay or interfere with Landlord’s
obligations to complete the Tenant Improvements in the Premises pursuant to
this Lease, and further provided, Tenant shall carry and keep in full force and
effect insurance reasonably required by Landlord during such period of early
access. If permitted by law, Landlord may allow Tenant to occupy and conduct
business in the Premises prior to the Commencement Date, in which case, Tenant
shall carry and keep in full force and effect the insurance required under Paragraph
20 of this Lease and the Commencement Date shall be the date upon which Tenant
first occupies and conducts its business on the Premises. Except as set forth
herein, if Tenant occupies the Premises on a day other than


 

















 


the first day of the month, the Monthly Base Rent
provided for in Paragraph (6) and the Additional Rent provided for in
Paragraph (8) shall be adjusted and prorated so that Tenant shall only pay
rent for the actual number of days in the month. Tenant shall also comply with
all other terms and provisions of this Lease in the same manner as if the Term
had, in fact, commenced.


 


(5)          SECURITY DEPOSIT:


 


Tenant shall deposit with Landlord upon execution
hereof by Tenant and Landlord the sum of Eighty Six Thousand One Hundred Twenty
Four Dollars and no/100 ($86,124.99), which sum is the equivalent of the
Monthly Base Rent for the first three months of the initial Lease Term, as
security for Tenant’s faithful performance of Tenant’s obligations hereunder as
well as for any repairs and/or the cost of removal and/or storage of any
furniture, fixtures, equipment or other personal property upon termination or
expiration of this Lease (the “Security Deposit”). Unless otherwise expressly
provided below, if Tenant fails to pay rent or other charges due hereunder
after any applicable grace or cure period, or otherwise defaults with respect
to any provision of this Lease, Landlord may use, apply or retain all or any
portion of said deposit for the payment of any rent or other charge in default
or for the payment of any other sum to which Landlord may become obligated by
reason of Tenant’s default, or to compensate Landlord for any loss or damage
which Landlord may suffer thereby. Said Security Deposit shall not earn
interest thereon for the benefit of Tenant. No trust relationship is created
herein between Landlord and Tenant with respect to said Security Deposit.
Notwithstanding the foregoing, provided there is no uncured Default by Tenant
with respect to any provision of this Lease, Landlord shall refund to Tenant
that portion of the Security.Deposit not otherwise applied by Landlord in
accordance with the terms of this Paragraph 5, totaling one month of the
Monthly Base Rent within thirty (30) days following the commencement of the
twelfth (12th) month of the
Lease Term and again within thirty (30) days following the commencement of the
twenty-fourth (24th) month of the
Lease Term. The amount of any remaining Security Deposit shall be applied by
Landlord to the Monthly Base Rent due during the thirty-seventh (37) month of
the Lease Term The amount of any remaining Security Deposit, if any, shall be
returned to Tenant within sixty (60) days following expiration or termination
of this Lease.


 


(6)          BASE RENT:


 


(a) As Annual Base Rent
for the use and occupancy of the Premises during the initial term, Tenant shall
pay to Landlord rent pursuant to the schedule attached as Exhibit “D.”


 


The Annual Base Rent is to be payable in equal
monthly installments, (the “Monthly Base Rent”) in advance on the first day of
each and every month during the initial or extended Term of this Lease, except
that Tenant shall pay the first installment of Monthly Base Rent upon the
execution of this Lease.


 

















 


(b)         Tenant agrees to pay as
supplemental base rent for the use of said Premises an amount equal to eight
percent (8%) of any Monthly Base Rent payment which is not received by Landlord
within five (5) business days of the date said Monthly Base Rent is due.
Said supplemental base rent shall be in addition to any other amounts due under
this Lease.


 


(c)          Rent shall be mailed by
Tenant to Landlord at Landlord’s principal place of business or at such other
place as Landlord may designate in writing. Rent shall be payable in accordance
with the terms of this Lease, and unless otherwise expressly set forth herein,
without deduction or setoff or prior demand thereof by Landlord, and
irrespective of the terms of any notice or complimentary invoice which Landlord
may or may not elect to provide to Tenant. All payments shall be in U.S. dollars,
in cash or by check, all checks subject to collection.


 


(7)
ESCALATION OF BASE RENT:


 


(a)          At the beginning of and for
each Lease Year, as hereinafter defined, commencing with the first month of the
second Lease Year, the Annual Base Rent (and the corresponding Monthly
Base Rent as defined in Paragraph (6)(a) and set forth in Exhibit “D”)
shall be adjusted in accordance with the terms of Exhibit “D”.


 


(b)         As used herein, the term “Lease
Year” shall be as defined in Exhibit “D.”


 


(8)
ADDITIONAL RENT:


 


(a)          If, in any calendar year or
partial calendar year during the Term hereof (or renewal periods, if any) the
Operating Expenses, as hereinafter defined, of the Building and the Developed
Parcel should exceed Seven Dollars and 51/100 ($7.51) per rentable square foot
of area therein (being the Operating Expenses per rentable square foot in 2007)
(such excess being hereinafter referred to as the “Operating Expense
Differential”), then as Additional Rent for that year, or partial calendar
year, Tenant shall pay its Proportionate Share of the Operating Expense
Differential all in accordance with the terms herein. “Proportionate Share”
shall be 5.2035% (13,000 rentable square feet in the Building divided by
249,828 rentable square feet in the Building). Notwithstanding the foregoing to
the contrary, Tenant shall not be required to pay its Proportionate Share of
Operating Expenses for the months of March, April and May, 2008.


 


(b)         At the Commencement Date, or
prior to or at the commencement of any calendar year during the Term, Landlord
shall deliver to Tenant a written estimate of any Additional Rent (such expense
being hereinafter referred to as “Estimated Operating Expense Differential”)
which may be due hereunder during the calendar year in which this Lease
commences or for any such succeeding calendar year as the case may be. For each
month, Tenant shall pay 1/12 of the amount of the Estimated Operating Expense
Differential for that particular calendar year in addition to the Monthly Base
Rent.


 

















 


(c)  Landlord shall
deliver to Tenant statements showing the actual Operating Expenses of the
Building and the Developed Parcel and Tenant’s Proportionate Share thereof
(hereinafter referred to as “Statement of Actual Adjustment”) within
one-hundred twenty (120) days after the end of any calendar year in which
Estimated Operating Expense Differential was paid by Tenant or due Landlord
under the provisions hereof, provided, however, any delay in delivery of such
Statement of Actual Adjustment shall not be grounds for any claim by or on
behalf of Tenant. Within thirty (30) days after the delivery by Landlord to
Tenant of such Statement of Actual Adjustment, Tenant shall pay to Landlord the
amount by which the actual adjustment exceeds the amount paid by Tenant as
Estimated Operating Expense Differential during said previous calendar year, or
Landlord shall credit Tenant the amount by which the Estimated Operating
Expense Differential exceeded the Statement of Actual Adjustment, or in the
event this Lease shall have expired, Landlord will remit to Tenant the excess
within said thirty (30) day time frame. Within sixty (60) days after receipt of
the Statement of Actual Adjustment, Tenant, at its own cost and expense and at
the offices of the Landlord in Denver, Colorado, where books and records for
the Building are maintained or at such other place as Landlord may reasonably
designate in Denver, Colorado, may examine Landlord’s books and records
relating to the Operating Expenses to determine the accuracy of the statement
in question. The cost of any audit, including the costs and expenses of
services provided by Landlord’s employees or representatives, reasonable
administrative costs, costs of copies, and such, shall be borne and paid by
Tenant unless such audit determines that Landlord’s statement has overcharged
Tenant by more than five percent (5%). If Landlord and Tenant cannot mutually
agree upon a settlement of a disputed overcharge within ten (10) days of
Tenant’s review, the parties shall select a mutually acceptable independent,
certified public accountant to review the records at Tenant’s expense, and the
decision of such accountant shall be final and binding upon the parties.
Landlord shall pay the fee of such independent accountant and reimburse Tenant
for Tenant’s reasonable costs and expenses (not to exceed Two Thousand Five
Hundred Dollars ($2,500.00)) in the event such accountant determines that
Landlord’s statement has overcharged Tenant by more than five percent (5%);
provided, however, under no circumstances shall Landlord pay any fees, costs or
expenses relative to an audit performed on a contingency basis. Tenant shall
pay the fee of such independent accountant and reimburse Landlord for Landlord’s
costs and expenses of such audit in all other events. In any event (whether the
audit shows an overcharge or an undercharge), the Tenant’s share of Operating
Expense Differential shall be adjusted to correspond with the figures
determined in the audit. Further, Tenant shall have no right to audit the books
and records of Landlord during any period that Tenant is in default under the
terms of this Lease beyond any applicable grace or cure period. Tenant, its
agents and representatives, agree that all information of any nature or kind
provided or disclosed by Landlord during any such audit shall be held in strict
confidence.


 

















 


(d)         The computations set forth
in this Paragraph shall be made on a calendar year basis except if this Lease
commences on a day other than the first day of a calendar year or terminates on
a day other than the last day of a calendar year, in such event the
computations shall be made on the basis of the proportion that the number of
days that this Lease was in effect for such calendar years bears to 365.


 


(e)          For the purposes of this
Lease, Operating Expenses shall mean any and all commercially reasonable costs
paid or incurred in connection with the operation, servicing, maintenance and
repair of the Building and the Building’s proportionate share of Operating
Expenses incurred in connection with the maintenance, repair and cleaning of
areas within the Developed Parcel, which shall include, but not be limited to
the following:


 


(i) All real estate
taxes, assessments, governmental levies, county taxes or any other governmental
charge, ordinary or extraordinary, unforeseen as well as foreseen, of any kind
or nature whatsoever which are or may be assessed or imposed upon the Building
and the Developed Parcel or upon rents collected by Landlord under the laws of
the United States, Arapahoe County or the State of Colorado, as a substitute in
whole or in part for taxes payable or hereinafter imposed on the Building and
the Developed Parcel or resulting from or due to any change in method of
taxation, but excluding any income, franchise, excise, corporation, estate,
inheritance, succession, capital stock or transfer tax levied on Landlord to
the extent that it is not a substitute in whole or in part for real estate
taxes. For purposes of this paragraph, real estate taxes, assessments,
governmental levies, county taxes or any other governmental charge shall be
prorated to the Tenant based on the period of time indicated on the tax bill
rather than the period of time in which it was paid. For example, if real
estate taxes for Lease Year 1 are actually paid by Landlord in Lease Year 2
(i.e. the billing is in arrears) Tenant shall remain responsible via an
Operating Expense adjustment for its proportionate share of the amount paid in
Lease Year 2 indicated for the Lease Year 1 period. The foregoing shall also
apply with respect to any other Operating Expenses paid in arrears.


 


(ii) Compensation provided in the form of
wages, salaries, fees and such other compensation and benefits (including
insurance, welfare, pension or similar fund payments, retirement, vacation,
holiday, sick pay and other fringe benefits) as well as any adjustments thereto
for the following classes of employees, employees of agents, or agents of
Landlord performing services rendered in connection with the management,
operation and maintenance of the Developed Parcel and/or the Building, and to
the extent time is shared by such employee, the compensation attributed to such
employee shall be equitably allocated;


 


a.             Building Manager;


 

















 


b.             Assistant Building
Manager(s);


 


c.             clerical and accounting
staff;


 


d.             window cleaners, porters,
janitors, cleaners, dusters, sidewalk shovelers and miscellaneous handymen;


 


e.             security personnel,
gardeners, caretakers and persons engaged in patrolling and protecting the
Building;


 


f.              engineers, mechanics,
electricians, plumbers and persons engaged in the operating and maintenance of
the heating, air conditioning, ventilating, plumbing, electrical and elevator
systems of the Building; and


 


g.             carpenters, plasterers,
painters and other persons engaged in connection with the management, operating
and maintenance of the Building.


 


(iii)         The uniforms of employees
specified in subdivision (ii) above and the cleaning, pressing and
replacement thereof.


 


(iv)        Payroll taxes, including
federal and state unemployment taxes and social security taxes and any other
such taxes that may be created, payable in connection with the employment of
any of the employees specified in subdivision (ii) above.


 


(v) Premiums and other charges incurred by
Landlord with respect to the following insurance (listed below) on employees
specified in subdivision (ii) above, and on the Building and the Developed
Parcel as required by Paragraph (20), and, if Landlord elects to self insure
some or all of the risks as would normally be covered by insurance, an amount
deemed by Landlord in its reasonable discretion to be equal to the amount which
would have been incurred if insurance had been purchased (but, in any event, in
an amount consistent with amounts paid for other comparable Class A office
buildings in the Denver Metro Area):


 


a.             fire; extended coverage,
including windstorm, hail, explosion, riot, rioting attending a strike, civil
commotion, aircraft, vehicle and smoke; all risk; and terrorism;


 


b.             public liability;


 


c.             elevator;


 






 










 


d.                                      boiler damage,
water damage, legal liability, and pilferage on equipment and materials for the
Building and the Developed Parcel;


 


e.                                       workmen’s
compensation as required under applicable state law and employer’s liability
for the employees specified in subdivision (ii) above;


 


f.                                         health,
accident, disability and group life on employees enumerated in subdivision (ii) above
as therein qualified; and


 


g.                                      other insurance
which Landlord reasonably deems necessary for a first class office building
would carry or which the holder of any mortgage affecting the Building or the
Building and the Developed Parcel might require to be carried under the terms
of such mortgage.


 


(vi)                              Costs or
premiums incurred for electricity, steam, gas, water or other utilities or fuels
required in connection with the operation and maintenance of the Building and
the Developed Parcel.


 


(vii)                           Water and sewer
charges.


 


(viii)                        Repairs or
maintenance of the Building and the Developed Parcel and the cost, repair or
replacement of supplies, tools, communication devices (including those
incidental to monitoring of systems from remote locations) materials and
equipment used in connection therewith.


 


(ix)                                Charges of any
independent contractor incurred in connection with operating, maintaining or repairing
the Building and its appurtenances, including inspection and servicing of
elevator, electrical, plumbing and mechanical equipment, energy management
systems and security monitoring systems; and the furnishing of cleaning and
janitorial services, base concierge services, if any, and the cost of
materials, tools, supplies and equipment used in connection thereof.


 


(x)                                   Sales, use and
excise taxes on goods and services purchased or provided by Landlord to
properly manage, operate and maintain the Building and the Developed Parcel.


 


(xi)                                License, permit
and inspection fees.


 


(xii)                             Auditor’s fees
for public accounting with respect to the Building and/or the Developed Parcel.


 

















 


(xiii)  Legal fees
of outside or special counsel retained by Landlord in connection with
proceedings for the reduction of real estate taxes, labor relations, or other
matters to the extent that the same shall be of general benefit to all tenants
in the Building.


 


(xiv)                         Cost of
telephone, telegraph, postage, stationery supplies and other materials required
for routine operation of the Building Manager’s office.


 


(xv)                            Association
dues.


 


(xv)  Commercially
reasonable management fees not exceeding three percent (3%) of the of gross
rental income derived solely from the Building.


 


(xvi)                         Restroom keys,
security passes, directory strips, control cards.


 


(xvii)                      Amortization of
capital improvements which will improve Building operating efficiencies or
which may be required by governmental authorities, amortized with interest at
the rate of ten percent (10%) per annum over the useful life of the capital
improvement.


 


(xviii)                   Such other expenses and
costs of any nature whatsoever, whether or not herein mentioned as are
customary in the commercial real estate market where the Premises are located,
which would be construed as an operating expense by Landlord in its
commercially reasonable discretion and in accordance with sound commercial real
estate accounting practices.


 


(f)            Notwithstanding anything
contained in Subparagraph (e), no expense incurred for the following shall be
included in Operating Expenses.


 


(i)                                     Any repairs to
the Building including the Premises where the occurrence causing the damage or
loss necessitating repair is reimbursed by insurance carried by, or required to
be carried by, Landlord.


 


(ii)                                  Leasing or
procuring new tenants including leasing commissions paid to agents of Landlord
or other brokers.


 


(iii)                               Renovating
space for new tenants or in renovating space vacated by any tenant.


 


(iv)                              Income, capital
stock, estate or inheritance taxes payable by Landlord, provided the same shall
not have been levied as a substitute for or supplement to real property taxes.


 


(v)                                 Cost of
utilities charged to tenants and any portion of Landlord’s payroll, material
and contract costs of other services charged to tenants.


 

















 


(vi)                              Costs incurred
by Landlord for Tenant’s alterations.


 


(vii)                           Cost of
painting and decorating the premises of other tenants. 


 


(viii)                        Depreciation of
the Building or Developed Parcel.


 


(ix)                                Cost of capital
improvements (except as set forth in (e)(xviii) above).


 


(x)                                   Interest on
debt or amortization payments on any mortgage or mortgages or deed of trust.


 


(xi)                                Any cost or
expense of any nature whatsoever which Landlord shall incur in connection with
the operation of the Building which is specifically reimbursed to the Landlord
from any source, charged directly to the tenant on whose behalf it is incurred
(whether or not the same shall fmally be paid), or for which Landlord is
otherwise compensated or recoups such expense by way of setoff, reduction of
recovery allowed, or otherwise.


 


(xii)                             Fees for
negotiating leases, collecting rents, evicting tenants or costs incurred in
legal proceedings with or against any tenant or to enforce the provisions of
this Lease.


 


(xiii)                          the cost of the
initial construction of the Building or any additions to the Building
subsequent to the date of original construction or any improvements,
alterations or refurbishing of space leased to other tenants of the Building.


 


(xiv)                         cost of any
work or service performed for any tenant (including Tenant) at such tenant’s
cost, or in excess of the services provided to Tenant by Landlord pursuant to
the terms of this Lease.


 


(xv)                            cost of
correcting defects in design or construction of the Building.


 


(xvi)                         any expenses
for repairs or maintenance which are covered by warranties and service
contracts, to the extent such maintenance and repairs are made at no cost to
Landlord.


 


(xvii)                      legal expenses,
accounting expenses or other professional fees arising out of the ownership or
sale of the Building or the construction of the improvements on the land or the
enforcement of the provisions of any lease affecting the land or the Building,
including this Lease


 

















 


(xviii)                   costs paid to any affiliates
or parties related to Landlord for services or materials in excess of the
amount which would be paid to an unrelated third party at market prices for
such services or materials


 


(xix)                           the cost of
overtime or other expense to Landlord in curing its defaults.


 


(xx)                              any amounts payable
by Landlord by way of indemnity for damages or which constitute a fine or
penalty, including interest or penalties for any late payment.


 


(xxi)                           repairs or
construction necessitated by violations of laws in effect and requiring
compliance as of the date of this Lease.


 


(xxii) charitable,
lobbying, special interest or political contributions.


 


(g)      If at any time
during the term of this Lease the occupancy of the Building is less than one
hundred percent (100%) of its capacity, then for the purpose of this Paragraph,
the Operating Expenses per rentable square foot of rentable floor space shall
nevertheless be computed as if the Building were the greater of: (i) ninety-five
percent (95%) occupied, or (ii) the actual occupancy rate.


 


(h)    The obligations of Landlord
and Tenant under this Paragraph shall survive the expiration or other
termination of this Lease.


 


(i)        All costs and expenses which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be
deemed additional rent, and, in the event of nonpayment, Landlord shall have
all the rights and remedies herein provided for in case of nonpayment of rent.


 


(j)        In no event will the Annual
Base Rent be reduced below the amount in Paragraph (6) and (7) as a
result of any adjustments pursuant to this Paragraph.


 


(9)                                  SERVICES AND UTILITIES:


 


(a) The Landlord hereby
covenants and agrees to maintain in good condition and repair the foundation,
floors, roof, elevators, exterior masonry walls of the Building and all common
areas in the Building and on the Developed Parcel, as well as sewer, water and
other pipes and conduits located beyond the boundaries of the Premises; and to
make all repairs becoming necessary by reason of any structural defects in the
Building; provided, however, that Landlord shall not be required to make any
repairs necessitated by reason of any act or omission of Tenant, its officers,
agents, employees, visitors, or anyone claiming under Tenant, or caused by any
alteration, addition, or improvement made by Tenant or anyone claiming under
Tenant, and that if Landlord does make any such repairs Tenant shall promptly,
upon demand, reimburse to Landlord the cost thereof.


 

















 


(b) The Landlord shall
maintain, operate and repair heating, ventilation, air conditioning, plumbing
and sprinkler systems (hereinafter known as the “Systems”) and shall provide:


 


(i)                  Heating, ventilating and air
conditioning in the Premises at the temperature required for reasonably
comfortable occupancy of the Premises during Normal Business Hours (that is,
daytime hours of 7:00 a.m. through 6:00 p.m. weekdays and 8:00 a.m.
to 1:00 p.m. on Saturdays, excluding Sunday and Holidays (New Years Day,
Thanksgiving Day, Memorial Day, Independence Day, Christmas Day and Labor
Day)). Because of Systems requirements, if Tenant shall require air
conditioning or heating service at any other time, Landlord shall furnish such “after
hours” air conditioning or heating service upon reasonable advance notice from
Tenant and Tenant shall pay the actual cost incurred by Landlord therefore
which is currently estimated to be $75.00 per hour. A minimum charge for two (2) hours
of “after hours” service will be made for any such service.


 


Use of the Premises (or any
part thereof) in a manner exceeding the designed conditions therefor for air
conditioning services, or rearrangement of partitioning which interferes with
normal operation of the Systems, or use of computer or data processing machines
may require changes in the Systems service for the Premises.


 


Such changes so occasioned
for the Premises shall be made by Tenant at its expense but subject to Landlord’s
reasonable approval. Tenant agrees to cooperate through the use of lowered or
closed Venetian blinds or other window coverings whenever required for proper
operation of the Systems.


 


(ii)               Cold water for drinks,
lavatory and toilet purposes and hot water for lavatory purposes.


 


(c) The Landlord shall
provide electricity consumed in the Premises for normal lighting, air
conditioning and operation of the Tenant’s normal office equipment only.
However, Landlord shall not be liable in any way to Tenant for any failure or
default in supply or character of electric current furnished to the Premises.
Notwithstanding the foregoing, if the interruption is due to the negligence or
intentional misconduct of Landlord and lasts for two (2) consecutive
business days, Tenant shall have the right to abate the monthly Basic Annual
Rent payable hereunder on a per diem basis for each day that such interruption
continues due to the negligence or intentional misconduct of Landlord, and if
such interruption continues for thirty (30) days, Tenant, upon written notice
to Landlord delivered at any time after such thirtieth (30th) day and before the service
is restored, shall have the right to terminate this Lease. Landlord shall
supply the Premises with required lamps, bulbs, ballast, starters, and
replacements thereof in the ordinary


 

















 


course of business, with
Tenant’s cooperation, through proper communication of need for said replacement
items. Tenant’s use of electric current in the Premises shall not at any time
exceed the capability of the electrical conductors and equipment in or
otherwise servicing the Premises. Tenant shall not make or perform or permit
any alterations to wiring, installations, lighting fixtures or other electrical
facilities in any manner without the prior written consent of Landlord which
consent shall not be unreasonably withheld, conditioned or delayed. In each
instance, should Landlord grant any such consent for additional risers or other
equipment required thereof, such equipment shall bO installed by Landlord or
Landlord’s approved agent and the cost thereof shall be paid by Tenant upon
Landlord’s demand.


 


(d)                            Tenant will not
install or operate in the Premises any heavy duty electrical equipment or
machinery, without first obtaining prior written consent of Landlord which
consent shall not be unreasonably withheld, conditioned or delayed. Subject to
the terms of this Lease, Landlord may make periodic inspections of the Premises
at reasonable times to determine that Tenant’s electrically operated equipment
and machinery complies with the provisions of this section and to review for
excessive heat generation.


 


Upon reasonable grounds
therefor, Landlord may require that one or more separate meters be installed to
record the consumption or use of electricity, or shall have the right to cause
a reputable independent electrical engineer to survey and determine the
quantity of electricity consumed by such excessive use. The actual cost of any
such survey or meters and of installation, maintenance and repair thereof shall
be paid for by Tenant. Tenant agrees to pay Landlord (or the utility company,
if direct service is provided by the utility company), promptly upon demand
therefor, for all such electric consumption and demand as shown by said meters,
or a flat monthly charge determined by the survey, as applicable, at the rates
charged for such service by the local public utility company.


 


(e)                             Landlord shall
not be liable for its failure to maintain comfortable atmospheric conditions in
all or any portion of the Premises due to heat generated by any equipment or
machinery installed by Tenant (with or without Landlord’s consent) that exceeds
generally accepted engineering design practices for normal office purposes. If
Tenant desires additional cooling to offset excessive heat generated by such
equipment or machinery, Tenant shall pay for auxiliary cooling equipment and
its operating costs including without limitation electricity, gas, oil and water,
and/or pay for excess electrical consumption by the existing cooling system, as
appropriate.


 


(f)                                    The Landlord
shall also provide the cleaning services detailed on Exhibit


 

















 


(10) USE OF PREMISES:


 


(a) Tenant, its
officers, agents, employees, guests, customers, clients, patients, contractors
and invitees (business or otherwise) shall use and occupy the Premises for
general business offices and for no other purpose without the prior consent of
Landlord which consent shall not be unreasonably withheld, conditioned or
delayed.


 


(b)                                 Tenant, at its
expense, shall comply with all Federal, State, County and City laws,
ordinances, rules and regulations affecting the use or occupancy of the
Premises by Tenant or the business at any time transacted by Tenant.


 


(c)                                  As of the
Commencement Date of this Lease, the Premises and the Tenant Improvements shall
be in compliance with all applicable laws, ordinances, rules and
regulations of governmental authorities.


 


(d)                                 Tenant, its
officers, agents, employees, guests, customers, clients, patients, contractors
and invitees (business or otherwise) shall comply with all the Rules and
Regulations which have been adopted by Landlord, attached as Exhibit “F,”
(and such reasonable changes or additions thereto) for the protection and
welfare of the Building, the Developed Parcel and other tenants. Landlord shall
enforce such rules and regulations in a uniform and non-discriminatory
manner as to all tenants in the Building.


 


(e) Tenant acknowledges
that Landlord has advised it that it may enter into a telecommunications and
related services agreement with a third party provider relative to the
Building. Such services, including but not limited to local and long distance
telephone, telex and PBX services, may be used by Tenant, along with other
tenants of the Building in a shared network, at Tenant’s election. Landlord
shall have no obligation to Tenant with respect to such services, whether or
not Landlord has entered into a contractual arrangement with such third party
provider concerning such services or has consented to the provision of such
services.


 


(11)                            PARKING:


 


Parking will be provided to
Tenant in accordance with Exhibit “G” attached hereto.


 


(12)                            CONTINUANCE OF OCCUPANCY:


 


Intentionally left blank.


 


(13) REPAIRS/RESTORATION:


 


(a) Tenant shall at its
expense keep in good order, condition, and repair the interior of the Premises,
excluding such items as Building HVAC equipment, structural systems and
lighting. However, Tenant shall pay for any and all damage caused by negligence
of Tenant, its officers, agents, employees, guests, customers,


 

















 


clients, patients,
contractors, and invitees (business or other) within the Premises, the
Building, common areas of the Building or Developed Parcel.


 


(b)                       If Tenant fails
to maintain and repair the Premises as required by Subparagraph (13)(a),
Landlord may, on ten (10) days prior written notice (except that no notice
shall be required in case of emergency), enter the Premises and perform such
maintenance or repair on behalf of Tenant unless during such ten (10) day
time frame, Tenant commences making such repairs and diligently prosecutes the
same to completion. In such case, Tenant shall reimburse Landlord for all costs
incurred in performing such maintenance or repair promptly upon demand.


 


(c)                        Upon the
expiration or termination of this Lease, Tenant shall, unless otherwise
directed by Landlord, in addition to any and all payments and obligations to
Landlord herein, restore the Premises (other than the Tenant Improvements
described in Exhibit C and subject to Article 15 below), the common
areas of the Premises, and/or the Developed Parcel to a marketable state at
Tenant’s sole cost and expense, by removing any Tenant-installed improvements
unique to the tenancy. By way of example, Tenant’s responsibilities shall
include: removal of all telecommunication, computer system, data processing
system, interne, and similar cabling and wiring installed within, or above the
ceilings of, the Premises; removal of all raised computer and data processing floors,
liebert units, separate air conditioning units, cooling systems, generators,
special security equipment, key systems on elevators and related wiring and
facilities; removal of communicating stairways and floor reconstruction in
openings; removal of all fixtures and special equipment, or other special
training, computer rooms, telecommunication or storage rooms, and
reinstallation of suspended ceiling and lighting and repair of all floors and
walls and wall covering/painting; removal of all roof or ground mounted
equipment and conduits and restoration of same to conditions reasonably
acceptable to Landlord. All such restoration shall be completed within thirty
(30) days following Tenant’s vacation of the Premises.


 


If Tenant fails to remove
such extraordinary Tenant finishes and improvements and restore the Premises,
common areas and/or Developed Parcel within the time period provided above,
Landlord may cause such items to be removed and the Premises, common areas
and/or Developed Parcel restored, in which event Tenant shall be obligated to
reimburse Landlord for all costs incurred by Landlord in performing such
removal and restoration plus a fee of five percent (5%) of the actual third
party costs incurred by Landlord to cover Landlord’s overhead immediately upon
demand.


 


(d) Notwithstanding
anything in the foregoing to the contrary, to the best of Landlord’s knowledge,
as of the Commencement Date: (1) the heating, ventilation, air
conditioning, electrical, plumbing and other systems contained within or
servicing the Premises and the Building are in good working condition and
repair; (2) the Premises are, as of the Commencement Date, in substantial
compliance with all federal, state and local laws, rules and regulations
(including,


 

















 


without limitation, the
Americans with Disabilities Act) (collectively, “Applicable Laws”), and
mechanical, electrical codes and administrative measures relating to the
operation of the Premises, the Building and the Real Property, including,
without limitation, zoning and building ordinances of the City of Englewood,
County of Douglas, Colorado; (3) there is no litigation or other
proceeding, including without limitation a taking or condemnation, pending or
threatened against or relating to Landlord’s interest in the Premises or the
Building; (4) there are no material physical, mechanical, or structural
defects to or on the Premises or the Building, and (5) there are no
Hazardous Substances (as defined in Article 48) located in the Premises,
the Building or the Developed Parcel. Landlord shall disclose to Tenant any
Hazardous Substances located on, under or about the Premises, the Building or
the Developed Parcel of which Landlord becomes aware of as of the effective
date hereof other than customary office cleaning products used in the ordinary
conduct of business by office tenants and which are used in a manner that
complies with all federal, state, and local laws, regulations, and ordinances.


 


(e) Landlord represents
and warrants that (i) to the best of Landlord’s knowledge, as of the
Commencement Date, there have been no written complaints regarding the indoor
air quality anywhere in the Building or otherwise related to the HVAC system, (ii) to
the best of Landlord’s knowledge, as of the Commencement Date, there are no
indoor air pollution and/or air quality problems that are in violation of
Applicable Laws in the Building, and (iii) Landlord will notify Tenant in
writing if any indoor air quality or environmental problem that is in violation
of any Applicable Laws is discovered by Landlord in the Building, and to the
extent required by Applicable Laws, will undertake to correct such problem in
the manner required by Applicable Laws. If, during the Lease Term, Tenant
discovers and reports to Landlord, in writing, its discovery that either the
Premises or the Building is affected by indoor air pollution and/or air quality
problems in violation of Applicable Laws, Landlord shall investigate the
reported problem. If the existence of any such problem is either experienced by
Landlord or confirmed by Landlord’s personnel or consultants engaged by
Landlord to exist, and such existence of any problem is in violation of
Applicable Laws and such Applicable Laws require Landlord to remediate,
Landlord shall remedy any such violation in accordance with Applicable Laws. In
the event Landlord is required to address the problem pursuant to Applicable
Laws and is unable to address the problem within the time periods required
under Applicable Laws, Tenant, may, upon prior written notice to Landlord,
elect to terminate this Lease and thereafter to be fully relieved of and from
all obligations hereunder, except any such obligation that otherwise may
expressly survive this Lease.


 


For purposes of this
Paragraph 13, to the “best of Landlord’s knowledge” shall mean the actual
knowledge of Kim Koehn, without independent investigation.


 














 


(14) ALTERATIONS:


 


No alterations, modifications, additions or
installations to the Premises the cost of which exceeds Five Thousand Dollars
($5,000.00) in any one instance shall be made unless the Landlord shall first
have given written approval of the plans and specifications thereof, which
approval will not be unreasonably withheld, conditioned or delayed and shall
have been protected, to the Landlord’s satisfaction, against any cost or damage
incidental thereto. Prior to any approved construction, Tenant shall first have
secured all necessary building and other permits. Tenant agrees to make such
alterations, modifications, additions or installations to the Premises as may
be required by building, OSHA, or other applicable regulations or local codes in
the jurisdiction in which the Premises are located, if the need therefore
arises as a result of Tenant’s particular manner of use of the Premises or as a
result of any change in applicable law after the Commencement Date. Tenant
shall further assure, in connection therewith, that any such alterations,
modifications, additions or installations are constructed in full compliance
with ADA standards. No alterations, modifications, additions or installations
shall be made which in any way conflict with the reasonable requirements of
Landlord’s insurance company. All such alterations, modifications, additions,
or installations, when made, shall become, unless the Landlord elects otherwise
as provided in Paragraph (15) hereof, the property of the Landlord and shall
remain upon and be surrendered with said Premises as a part thereof at the end
of the Term.


 


(15)                       FIXTURES AND UNAUTHORIZED
USE OF PREMISES:


 


Tenant shall not without Landlord’s prior written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed, attach any fixtures in or to the Premises or change, alter, or make
additions to the Premises nor permit any annoying sound device, install any
additional locks, overload any floor or deface the Premises. Any attached
fixtures or any alterations, additions, or improvements made or attached by
Tenant shall on the expiration or termination of this Lease, if requested by
Landlord at the time of their installation by Tenant, be promptly removed at
Tenant’s expense, and the Premises restored by Tenant at its expense to its
original condition, ordinary wear and tear and casualty excepted. Any such
fixture, alteration, addition and/or improvement not requested to be moved
shall remain on the Premises and shall become and remain the property of Landlord.
All Tenant’s fixtures, installations, and personal property not removed from
the Premises within five (5) calendar days following the expiration or
termination of the Term and not required by Landlord to have been removed as
provided in this Paragraph shall be conclusively presumed to have been
abandoned by Tenant, and title thereto shall pass to Landlord under this Lease
as by a bill of sale.


 


(16)                       WARRANTY OF QUIET ENJOYMENT:


 


Tenant, upon paying the rents and keeping and
performing the covenants of this Lease to be performed by Tenant, shall
peacefully and quietly hold, occupy, and enjoy said Premises during the Term or
any renewal thereof.


 

















 


(17)
INTERRUPTION OF SERVICE:


 


Landlord does not warrant that any services to be
provided by Landlord will be free from interruption due to causes beyond
Landlord’s reasonable control. Unless caused by the negligence or intentional
misconduct of Landlord, its agents, employees or contractors, the temporary
interruption of services or unavoidable delay in the making of repairs shall
not be deemed an eviction or disturbance of Tenant’s use and possession nor
render Landlord liable to Tenant for damage by abatement of rent or otherwise
nor relieve Tenant from performance of its obligations under this Lease.


 


(18)
RIGHTS RESERVED BY LANDLORD:


 


Landlord shall have the following rights exercisable
without liability to Tenant:


 


(a)                             To change the
name or street address of the Building upon a minimum of ten (10) business
days notice to Tenant, provided, however, in such event, Landlord shall
reimburse Tenant for the actual costs incurred by Tenant to replace any
existing stock of stationery, letter head, marketing materials and business
cards;


 


(b)                            To have pass
keys to the Premises to be used according to the terms of this Lease;


 


(c)                             To require all
persons entering or leaving the Building during such hours as Landlord may from
time to time reasonably determine to identify themselves to a security person
by registration or otherwise, and to establish their right to enter or leave,
and to exclude or expel any peddler, solicitor or beggar at any time from the
Developed Parcel or the Building;


 


(d)                            To approve the
weight, size and location of safes, computers, and other heavy articles or
equipment in and about the Premises and to require all such items and other
office furniture and equipment to be moved in and out of the Building only at
such times and in such manner as Landlord shall reasonably direct and in all
events at Tenant’s sole risk and responsibility;


 


(e) Landlord may, at
its expense, relocate the Tenant’s Premises to alternate premises on or above
the fourth floor of the Building in order to facilitate leasing of the Building
and/or construction and/or alterations of the Building; the relocated premises
shall have comparable tenant finish build out and comparable views to that
portion of the Premises being relocated and shall provide for a similar right
to Tenant to the First Refusal Right as defined in Article 49 hereof and
the Right of First Offer as defined in Article 50 all as determined in
Tenant’s reasonable opinion. Landlord shall provide at least ninety (90) days
prior written notice of such relocation, and shall reimburse Tenant for its
reasonable moving and installment expenses, including voice and data cabling
and a reasonable quantity of printable stationary, envelopes and business cards
within thirty (30) days of the presentation of invoices. Notwithstanding the
foregoing, Landlord may not relocate the Tenant’s Premises at any time during
the last year of the Lease Term and may only exercise its relocation rights
hereunder only once during the Lease Term. Within ten (10) business days
following the relocation, Tenant shall enter


 

















 


into an appropriate Lease amendment relocating the
Premises effective as of the relocation date. The Monthly Base Rent shall not
be adjusted upward if the relocation space is larger than the original Premises
but may be adjusted downward on a per square foot of rentable area basis if the
relocation space is smaller than the original Premises.


 


(t) Subject to
applicable law with regard to the protection of private medical records,
Landlord or its agents shall have the right to enter the Premises at reasonable
times and upon reasonable prior notice for the purpose of inspecting the same,
showing the same to prospective purchasers or lenders, making such alterations,
repairs, improvements or additions to the Premises as Landlord may deem
necessary or desirable. Landlord may at any time place on or about the
Premises, the Building or the Developed Parcel any ordinary “For Sale” or “For
Lease” signs; and


 


(g)                            Within six (6) months
prior to the date of the expiration of this Lease, Landlord or its agents shall
have the right to enter the Premises at all reasonable times for the purpose of
exhibiting the Premises to prospective tenants;


 


(h)                            At any time
after the completion of the Building, Landlord shall have the right to change
the arrangement or location of such of the following as are not contained
within the Premises or any part thereof: entrances, signs, passageways, doors
and doorways, corridors, stairs, toilets and other like public service portions
of the Building; provided, however, that in no event shall Landlord make any
change which shall diminish the area of the Premises, make any change which
shall interfere with the access to the Premises from and through the Building,
parking or change the character of the Building from that of a first-class
office building.


 


(19)
FIRE OR OTHER CASUALTY:


 


Should the Premises be damaged or destroyed by any
cause and such damage or destruction be of such a nature that it may be
repaired or restored within a period of one hundred twenty (120) days after the
occurrence, then this Lease shall not terminate, but it shall be the obligation
of Landlord to repair or restore the Premises as nearly as possible to its
condition prior to such damage or destruction, and the Landlord shall proceed
promptly to make such repairs or restoration; provided, however, that such
repairs or restoration can be made by Landlord for an amount not in excess of
the amount recovered or the amount self-insured for by Landlord on the fire,
extended coverage and all risk insurance. There shall be an equitable abatement
of rent during the period that the Premises may be wholly or partially
unavailable for use by Tenant for the operation of its business.


 


Should the damage or destruction be of a character
that will not permit repair or restoration of the Premises within the one
hundred twenty (120) days after the occurrence thereof, or if the cost of such
repair or restoration exceeds Landlord’s insurance recovery, either Landlord or
Tenant shall have the privilege of canceling the unexpired Term of this


 

















 


Lease upon giving written notice to the other within
forty-five (45) days after such destruction. If such notice is given,
termination shall be effective on the date of the casualty.


 


(20)
INSURANCE:


 


(a)                              Landlord shall
keep the Building insured against loss by fire or other casualty . with both
extended coverage and all risk coverage in an amount determined by the
Landlord. In the event that the Landlord’s cost of premiums on such insurance
increases solely due to the hazardous nature of the use and occupancy by Tenant
of the Premises, then the entire increase in such insurance cost shall be paid
by Tenant in a lump sum upon receipt of invoice from Landlord.


 


(b)                                 Landlord shall
maintain public liability insurance for the common areas and the exterior of
the Building, as well as the sidewalks and the parking lot on the Developed
Parcel.


 


(c)                              Tenant shall,
at all times during the Term, at its own expense, carry and keep in full force
and effect in companies reasonably satisfactory to Landlord, public liability
insurance in form satisfactory to Landlord, with limits of (a) at least
ONE MILLION DOLLARS ($1,000,000.00) for bodily injury, including death, and
property damage, and (b) at least TWO MILLION DOLLARS ($2,000,000.00)
aggregate. Tenant shall also carry Worker’s Compensation insurance for all of
Tenant’s employees working in the Premises, in an amount sufficient to comply
with applicable laws or regulations.


 


(d)                             All property in
the Premises, in the Building or on the Developed Parcel, belonging to Tenant,
its agents, employees, or invitees or to any other person, shall be there at
the risk of Tenant or such other person only, and unless caused by the
negligence or intentional misconduct of Landlord, its agents, employees or
contractors, Landlord shall not be liable for damage thereto or theft,
misappropriation or loss thereof. In furtherance of this provision, Tenant
shall, during the entire Term, keep in full force and effect insurance upon all
property situated in the Premises owned by Tenant or for which Tenant is
legally liable and also upon fixtures and improvements installed in the
Premises by or on behalf of Tenant. Such policies shall be for an amount of not
less than one hundred percent (100%) of the full replacement cost with
protection against (at a minimum) fire or other casualty, with both extended
coverage and all risk coverage.


 


(e) All public
liability insurance policies maintained by Tenant shall name the Landlord
Parties (as hereinafter defined) as additional parties insured, and shall
contain a provision that the same may not be canceled or materially changed without
giving to the Landlord at least thirty (30) days written notice prior to
expiration or cancellation of any such policy. For purposes of this Section, “Landlord
Parties” shall mean Landlord, any lender whose loan is secured by a lien
against the Building or the Developed Parcel, any manager of the Building or


 

















 


Developed Parcel and the respective affiliates,
subsidiaries, successors, assigns, heirs, officers, directors, shareholders,
partners, members, employees, agents and contractors of said Landlord, lender
and Building/Developed Parcel Manager. Tenant shall furnish to Landlord a
certified certificate of insurance for each insurance policy. Furthermore,
renewals of such insurance policies shall be presented to Landlord at least
thirty (30) days before the expiration of such insurance coverages.


 


(f)                               Landlord and
Tenant, for themselves and their respective insurers, agree to and do hereby
release each other of and from any and all claims, demands, actions and causes
of action that each may have or claim to have against the other for loss or
damage to the property of the other, both real and personal, caused by or
resulting from casualties insured against, or, if there is no insurance, caused
by or resulting from casualties customarily insurable under ordinary fire
insurance policies with both extended and all risk coverage, notwithstanding
that any such loss or damage may be due to or result from the negligence of
either of the parties hereto or their respective employees or agents.


 


(g)                            Landlord, its agents
and employees shall not be liable for losses or damages as a result of any
injury to any person or damage to property (except for damage to the Building
itself) sustained by Tenant, by Tenant’s agents or employees, by any occupant
of the Premises, the Building or the Developed Parcel, or by any other person,
occurring or resulting directly or indirectly from any existing or future
condition, defect, matter, or thing in the Premises, in the Building or on the
Developed Parcel or from equipment or appurtenance therein or from accident or
from any occurrence, act, or from negligence or omission of any tenant,
occupant or any other person; but nothing in this Subparagraph (g) shall
be deemed to relieve Landlord from liability for damages for bodily injuries to
any person caused by or resulting from the negligence or intentional misconduct
of Landlord, its agents, employees or contractors.


 


(21)
INDEMNIFICATION:


 


Unless caused by the negligence or intentional
misconduct of Landlord, its employees, agents or contractors, Tenant shall
indemnify and hold Landlord (and any mortgagee of Landlord) harmless from and
against all claims, actions, lawsuits, damages, liabilities, expenses and costs
(including reasonable attorneys’ fees) for any loss of life, bodily injury or
property damage caused by or resulting from: 1) the use or occupancy of the
Premises, the Building, or the Developed Parcel by the Tenant, its officers,
agents, employees, invitees, guests, assignees or subtenants; 2) any occurrence
within the Premises; 3) a breach of this Lease by the Tenant; or 4) any
negligent act or omission or misconduct caused wholly or in part by the Tenant,
its officers, agents, employees, invitees, guests, assignees or subtenants.
Nothing in this Paragraph shall require Tenant to indemnify Landlord for damage
to the Building, to the extent released in Paragraph (20)(f) of this
Lease.


 

















 


Landlord shall indemnify and hold Tenant (and any
mortgagee of Tenant) harmless from and against all claims, actions, lawsuits,
damages, liabilities, expenses and costs (including reasonable attorneys’ fees)
for any loss of life, bodily injury or property damage caused by or resulting
from any negligent act or omission or misconduct caused wholly or in part by
the Landlord, its officers, agents, employees, invitees, guests, or assignees,
in the Premises, the office Building or the Developed Parcel. Nothing in this
Paragraph shall require Landlord to indemnify Tenant for damage to the
Building, the Premises or its contents, to the extent released in Paragraph
(20)(f) of this Lease.


 


(22)                       BROKER’S COMMISSION:


 


Landlord shall pay a real estate commission for
services rendered in procuring Tenant as a prospect for the Premises per the
terms of a separate agreement. Landlord and Tenant agree that no broker or
finder has been involved in the transaction described in this Lease other than
Red Hawk Properties, Inc., who has acted as Tenant’s leasing agent and
whose fees and commissions shall be paid by Landlord. Further, Landlord and
Tenant agree that in the event any broker, salesman or other person that is not
otherwise covered by this Lease makes any claim for any commission or fee based
upon items or interests contemplated by this Lease that is not otherwise
covered by this Lease the party through whom said broker, salesman or other
person makes it claims shall indemnify and hold harmless the other party from
said claim and all liabilities, costs and expenses relating thereto, including
reasonable attorney’s fees, which may be incurred by such other party in
connection with such claims.


 


(23)                            SUBORDINATION AND
ATTORNMENT:


 


(a)                             The Tenant
accepts this Lease subject and subordinate to any mortgage, deed of trust, or
any other hypothecation or security now or hereafter placed upon the Developed
Parcel and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof.
If any mortgagee shall elect to have this Lease prior to the lien of its
mortgage, and shall give written notice thereof to Tenant, this Lease shall be
deemed prior to such mortgage, whether this Lease is dated prior or subsequent
to the date of said mortgage, or the date of recording thereof. With respect to
security devices entered into by Landlord after the execution of this Lease,
Tenant’s subordination of this Lease shall be subject to receiving assurance (“non-disturbance
agreement”) from the Lender that Tenant’s possession and this Lease, including
any options to extend the term hereof, will not be disturbed so long as Tenant
is not in default hereof and attorns to the lender and/or record owner of the
Premises. Landlord agrees to use commercially reasonable effort to obtain such
non-disturbance agreement from the Lender on Lender’s standard form, which
commercially reasonable efforts shall in no event require the expenditure of
any costs by Landlord, including attorney’s fees.


 


(b)                                 Although the
provisions of Paragraph (23)(a) shall be self operative, Tenant agrees,
upon reasonably request of Landlord or Landlord’s lender, to execute any


 

















 


documents required to effectuate any attornment, a
subordination or to make this Lease prior to the lien of any mortgage. Tenant’s
failure to execute such documents within 10 days after written demand shall
constitute a material default by Tenant hereunder.


 


(c) If by reason of a
default under the mortgage upon the Developed Parcel, the interest of Landlord
in the Developed Parcel is terminated, the Tenant will attorn to the holder of
such mortgage (or to any person or entity to which the Developed Parcel is
conveyed by such holder) and will recognize such holder, person or entity as
Tenant’s landlord under this Lease. Tenant agrees to execute and deliver, at
any time and from time to time, upon the request of Landlord or of the Landlord’s
lender any instrument which may be necessary or appropriate to evidence such
attornment. Tenant further waives the provision of any statute or rule of
law now or hereafter in effect which may give or purport to give Tenant any
right of election to terminate this Lease or to surrender possession of the
Premises in the event any proceeding is brought by Landlord’s lender to
terminate the interest of the Landlord in the Developed Parcel, and agrees that
this Lease shall not be affected in any way whatsoever by any such proceeding.


 


(24)
ASSIGNMENT AND SUBLETTING:


 


Tenant shall not assign, mortgage or encumber this
Lease nor sublet or permit the Premises or any part thereof to be used by
others, without the prior written consent of Landlord in each instance which
consent shall not be unreasonably withheld, conditioned or delayed. The consent
by Landlord to an assignment or subletting shall not be construed to relieve
Tenant from obtaining the consent of the Landlord to any further assignment or
subletting. The consent by Landlord will not be given unless: a) the subtenant
or assignee assumes the Tenant’s obligations under this Lease; and b) unless
otherwise agreed, Tenant remains liable for all its obligations under this
Lease, including extensions or renewals provided for herein. Nor will consent
be given if Tenant is in default under this Lease. Tenant shall notify Landlord
of the name of each proposed assignee or subtenant and shall provide
information to Landlord pursuant to the fmancial standing of the proposed
assignee or subtenant.


 


In no event shall a proposed subtenant or assignee
be an existing tenant, subtenant or assignee of the Building or any other
building located on the Developed Parcel. In no event shall the proposed
subtenant or assignee be a person or entity with whom Landlord or its agent is
negotiating and to or from whom Landlord, or its agent, has given or received
any written or oral proposal within the past one hundred twenty (120) days
regarding a lease of space in the Building or any other building located on the
Developed Parcel.


 


Landlord reserves the right to require as additional
rent, fifty percent (50%) of any subtenant or assignee rent which is in excess
of the base rent and additional rent then being paid by Tenant pursuant to this
Lease, and any other profit or gain realized by


 

















 


Tenant from such assignment or subletting. All sums
payable hereunder by Tenant shall be paid as additional rent upon receipt by
Tenant or upon request by Landlord.


 


Tenant agrees to pay and reimburse Landlord for any
actual and reasonable administrative costs and expenses, including attorneys’
fees, incurred by Landlord in the review and approval and/or in the granting of
any consent to any assignment or subletting of any part or all of the Premises
by Tenant not to exceed Two Thousand Dollars ($2,000.00).


 


Notwithstanding anything contained herein to the
contrary, Tenant may assign its entire interest under this Lease or sublet the
Premises to any entity controlling or controlled by or under common control
with Tenant or to any successor to Tenant by purchase, merger, consolidation or
reorganization (hereinafter, collectively, referred to as “Permitted Transfer”)
without the consent of Landlord, provided: (1) Tenant is not in default
under this Lease; (2) if such proposed transferee is a successor to Tenant
by purchase, said proposed transferee shall acquire all or substantially all of
the stock or assets of Tenant’s business or, if such proposed transferee shall
acquire all or substantially all of the stock or assets of Tenant’s business
or, if such proposed transferee is a successor to Tenant by merger,
consolidation or reorganization, the continuing or surviving corporation shall
own all or substantially all of the assets of Tenant; (3) such proposed
transferee operates the business in the Premises for the Permitted Use and no
other purpose; and (4) Tenant shall give Landlord written notice at least
thirty (30) days prior to the effective date of the proposed purchase, merger,
consolidation or reorganization.


 


Notwithstanding anything to the contrary contained
in this Lease, unless otherwise expressly provided below, Landlord shall have
the option to exclude from the Premises covered by this Lease (“recapture”),
the space proposed to be sublet or subject to an assignment, effective as of the proposed commencement date of
such sublease or assignment provided, however, if Landlord elects to recapture
as to such portion of the Premises, Tenant shall have the right within fifteen
(15) days after notice of Landlord’s exercise of its right to terminate to
withdraw Tenant’s request for such consent and remain in possession of the
Premises under the terms and conditions hereof. If Landlord elects to
recapture, Tenant shall surrender possession of the space proposed to be
subleased or subject to the assignment to Landlord on the effective date of
recapture of such space from the Premises, such date being the termination date
for such space. Effective as of the date of recapture of any portion of the
Premises pursuant to this section, the Monthly Base Rent, rentable square
footage of the Premises and the Tenant’s Proportionate Share shall be adjusted
accordingly. Landlord’s recapture right hereunder for space proposed to be
sublet shall be expressly limited to subleases of 1,000 rentable square feet or
more of the total Premises. It is expressly acknowledged and agreed to by the
parties hereto that Landlord’s recapture rights hereunder for space subject to
an assignment shall be unlimited and shall apply to any assignment hereunder,
except for a Permitted Transfer.


 

















 


(25)
EMINENT DOMAIN:


 


Tenant agrees that if the Premises, or any part
thereof, shall be taken or condemned for public or quasi-public use or purpose
by any competent authority, Tenant shall have no claim against Landlord and
shall not have any claim or right to any portion of the amount that may be
awarded as damages or paid as a result of any such condemnation, whether such
amount be awarded for diminution in value to the leasehold or to the fee. Except
as otherwise provided below relative to separate claims of Tenant, it is agreed
that the full amount of such award, if any, made by the taking authorities
shall be paid to and retained by Landlord, free of any claim by Tenant to any
portion thereof, and all rights of Tenant to damages therefor, if any, are
hereby assigned by Tenant to Landlord; provided, however, that any compensation
awarded Tenant for Tenant’s personal property and moving costs, shall be and
remain the property of Tenant. In the event that all or substantially all of
the Premises shall be taken or condemned by any governmental authority, then
the Term shall cease and terminate from the date on which the Tenant is
required, by such taking authority, to surrender possession of said Premises
and the Tenant shall not have nor make any claim against Landlord for the value
of any unexpired Term. In the event that a portion of the Premises shall be
taken or condemned by any governmental authority, then this Lease shall
continue in full force and effect, and Rent shall abate in an amount which
bears the same ratio to the Annual Base Rent as the value of the floor space
taken bears to the value of the total floor space of the Premises. All rentals
and other sums payable by Tenant hereunder shall be adjusted to the date on
which Tenant is required, by the taking authority, to surrender possession of
the Premises or portion of the Premises so taken. Nothing contained herein
shall prevent Tenant from seeking a separate award, at Tenant’s own costs and
expense, from the condemning authority for moving expenses and business
interruption costs or the taking of Tenant’s fixtures or other personal
property in the Premises owned by Tenant provided Tenant’s claim does not
interfere with or reduce Landlord’s award.


 


(26)
ESTOPPEL CERTIFICATE/LANDLORD’S WAIVER AND CONSENT:


 


(a)                             Tenant shall at
any time upon not less than fifteen (15) days’ prior written notice from
Landlord execute, acknowledge and deliver to Landlord a statement in writing: (i) certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease as so
modified, is in full force and effect) and the date to which rent and other
charges are paid in advance, if any, and (ii) acknowledging that there are
no uncured defaults on the part of Landlord hereunder, or specifying such
defaults if any are claimed. Such statement shall be in a form as Landlord,
purchaser or mortgagee shall reasonably require. Any such statement may be
conclusively relied upon by any prospective purchaser or mortgagee of the
Premises.


 


(b)                            Tenant’s
failure to deliver such statement within such time shall be a material default
under this Lease or, at Landlord’s option, Tenant’s failure to furnish such
statement shall be conclusive upon Tenant: (i) that this Lease is in full
force and effect, without modification except as may be represented by
Landlord; (ii) that there are no uncured defaults in Landlord’s
performance nor does Tenant have any existing defenses or offsets, claims or
counterclaims against the enforcement of


 

















 


the Lease by Landlord; (iii) that not more than
one month’s rent has been paid in advance; (iv) that Tenant has no claim
against Landlord for any security or other deposits; (v) that Tenant has
made no agreement with Landlord nor any agent, representative or employee of
Landlord concerning free rent, partial rent, rebate of rental payments or any
other type of rental or other concession, except as expressly set forth in the
Lease; and (vi) that all improvements to be constructed by Landlord, if
any, have been completed and accepted by Tenant and any tenant construction
allowances have been paid in full by Landlord.


 


(c) On or prior to
Tenant taking possession of the Premises, Landlord shall execute the Landlord’s
Waiver and Consent in favor of Tenant’s lender, Merrill Lynch Capital, in the substantially same form as shown on Exhibit I.


 


(27)
DEFAULT: REMEDIES UPON DEFAULT:


 


(a)                             Each of the
following shall be a Default hereunder: (1) the failure of Tenant to pay
when due any installment of Monthly Base Rent, Additional Rent or any other
charge hereunder within five (5) days after written notice from Landlord
advising of such default; (2) the failure of Tenant to timely or fully
perform or observe any other provision of this Lease and the continuation of
such failure for thirty (30) days after Landlord gives Tenant written notice
thereof (provided, however, Tenant shall have no such grace period with respect
to any subordination or estoppel agreement required pursuant to the provisions
of Section 23 and Section 26 hereof or for any items listed in
clauses (3) through (7) herein); (3) the breach by Tenant of any
material representation or warranty in this Lease; (4) the filing by or
against Tenant or any guarantor hereof of any petition in bankruptcy; (5) the
filing of any voluntary or involuntary proceeding instituted to declare Tenant
or any guarantor hereof insolvent or unable to pay its debts as they mature; (6) the
making by Tenant or any guarantor hereof of an assignment for the benefit of
its creditors; or (7) the appointment of a trustee or receiver for Tenant
or any guarantor hereof or for the major part of Tenant’s or guarantor’s
property.


 


(b)                            Upon and after
a Default, Landlord shall have the following remedies in addition to all other
remedies allowed at law or in equity
or elsewhere in this Lease, all of which shall be cumulative and not in the
alternative and any or all of which may be exercised successively or concurrently
and at such time or times as Landlord elects, except as provided to the
contrary below:


 


(i) Without further notice except as required
by applicable laws, Landlord shall have the right to terminate this Lease or to
terminate Tenant’s right to possession of the Premises without terminating this
Lease, but in either event Tenant shall surrender possession of and vacate the
Premises on or before the date specified in Landlord’s notice to Tenant of
either such termination and Landlord shall have the further right to enter the
Premises with or without process of law, retake possession of the


 














 


Premises and expel or remove Tenant (or anyone
occupying the Premises) and its effects therefrom without being liable or
subject to prosecution or any claim for damages therefor. Should Landlord
reenter or take possession pursuant to legal proceedings or any notice provided
for by applicable law, Landlord may, from time to time, without terminating
this Lease, relet the Premises or any part, either alone or in conjunction with
other portions of the Building, in Landlord’s or Tenant’s name but for the
account of Tenant, for such periods (which may be greater or less than the
period which would otherwise have constituted the balance of the Term) and on
such conditions and upon such other terms (which may include commercially
reasonable concessions of free rent and commercially reasonable alterations and
repairs of the Premises) as Landlord, in its reasonable discretion, determines
and Landlord may collect the rents therefor. Subject to applicable law,
Landlord is not in any way responsible or liable for failure to relet the
Premises, or any part thereof, or for any failure to collect any rent due upon
such reletting. If there is other unleased space in the Building, Landlord may
lease such other space without prejudice to its remedies against Tenant. No
such reentry, repossession or notice from Landlord, or any other acts or
omissions of Landlord, including maintenance, preservation, efforts to relet
the Premises, or appointment of a receiver, shall be construed as an election
by Landlord to terminate this Lease unless specific notice of such intention is
given Tenant. Landlord reserves the right following any reentry and/or
reletting to exercise its right to terminate this Lease by giving Tenant
written notice, in which event this Lease will terminate as specified in the
notice. If Landlord takes possession of the Premises without terminating this
Lease, Tenant shall pay Landlord (i) the rent which would be payable if
repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all of Landlord’s actual expenses
incurred in connection with such reletting, including all repossession costs,
brokerage commissions, attorneys’ fees, expenses of employees, alteration, and
repair costs (collectively “Reletting Expenses”). If, in connection with any
reletting, the new lease term extends beyond the Term or the premises covered
thereby include other premises not part of the Premises, a fair apportionment
of the rent received from such reletting and the Reletting Expenses, will be
made in determining the net proceeds received from the reletting. In
determining such net proceeds, rent concessions will also be apportioned over
the term of the new lease. Tenant shall pay such amounts to Landlord monthly on
the days on which the rent would have been payable if possession had not been
retaken, and Landlord is entitled to receive the same from Tenant on each such
day. In the alternative, if Landlord elects hereunder to terminate Tenant’s
right to possession of the Premises without terminating this Lease, Landlord
shall have the right to recover from Tenant within ten (10) days after
Landlord’s demand a sum equal to the entire amount of the Annual Base Rent,
Additional Rent and other charges hereunder for the


 

















 


remainder of the Term. If, due to escalation
mechanisms in this Lease or other factors, the balance of the Annual Base Rent,
Additional Rent and other charges due for the remainder of the Lease term
cannot be precisely determined as of the date of such termination, Tenant shall
pay the amount Landlord reasonably estimates would result from such escalation
mechanisms and other factors. Upon the expiration of the Term or at such
earlier time as may be practicable, Landlord shall determine the actual Annual
Base Rent, Additional Rent and other charges hereunder and Landlord or Tenant
shall pay to the other the resulting excess or deficiency, as the case may be.
If this Lease terminates pursuant to this Section, Tenant remains liable to
Landlord for damages in an amount equal to the present value of this Lease for
the then balance of the Term. The present value shall be determined by
discounting all future excess rent amounts at a rate of eight percent (8%) per
annum. Landlord may collect such damages from Tenant monthly on the days on
which the rent would have been payable if this Lease had not terminated and
Landlord shall be entitled to receive the same from Tenant on each such day.
Alternatively, if this Lease is terminated, Landlord at its option may recover
forthwith against Tenant as damages for loss of the bargain and not as a
penalty an amount equal to the worth at the time of termination of the excess,
if any, of the rent reserved in this Lease for the balance of the Term over the
then Reasonable Rental Value of the Premises for the same period plus all
Reletting Expenses. “Reasonable Rental Value” is the amount of rent Landlord
can obtain for the remaining balance of the Term.


 


(ii)           Landlord shall
have the right but not the duty to perform any of Tenant’s obligations hereunder
which Tenant has not timely and fully performed and to charge to Tenant the
cost of such performance, together with a service charge of ten percent (10%)
of such cost, to compensate Landlord for administrative and other services
associated with such performance.


 


(iii)          Landlord shall
have the right to suspend or discontinue the provision of services to the
Premises and the performance of any other obligation of Landlord hereunder.


 


(iv)  If Landlord is not permitted
to terminate this Lease as provided above because of the provisions of Title 11
of the United States Code relating to bankruptcy, then Landlord shall have the
right to require Tenant as a debtor in possession or any trustee for Tenant,
within no more than fifteen (15) days upon request by Landlord to the
Bankruptcy Court, to assume or reject this Lease and Tenant on behalf of
itself, and any trustee, agrees not to seek or request any extension or
adjournment of any application by Landlord to assume or reject this Lease. In
such event, Tenant or any trustee for Tenant may only assume this Lease if (A) it
cures or provides adequate assurance that the Tenant will promptly cure


 

















 


any default hereunder, (B) compensates or
provides adequate assurance that Tenant will promptly compensate Landlord for
any actual pecuniary loss of Landlord resulting from Tenant’s defaults
hereunder, and (C) provides adequate assurance of performance during the
full Term of all of the Tenant’s obligations under this Lease. In no event
after the assumption of this Lease shall any then-existing default remain
uncured for a period in excess of the earlier of ten (10) days or the time
period set forth herein.


 


(v)  Landlord shall have the
right to recover from Tenant, if Landlord relets or attempts to relet the
Premises, all actual costs and expenses incurred in connection with such
reletting, including without limitation broker’s commissions, advertising
costs, reasonable legal fees for lease preparation and negotiations and the
cost of alterations or improvements to the Leased Premises.


 


(c)           Any property
which may be reasonably removed from the Premises by the Landlord pursuant to
the authority of the Lease or of law to which the Tenant is or may be entitled
may be handled, removed, or stored in a commercial warehouse or otherwise by
the Landlord at the risk, cost, and expense of the Tenant. Landlord shall in no
event be responsible for the value, preservation, or safekeeping thereof. The
Tenant shall pay to the Landlord, upon demand, all expenses incurred in such
removal and all storage charges against such property. Any such property of
Tenant not removed from the Premises or retaken from storage by Tenant within
thirty (30) days after the end of the term of this Lease, however terminated,
shall be conclusively deemed to have been abandoned by Tenant.


 


(d)           If Tenant
violates any of the terms and provisions of this Lease or defaults in any of
its obligations hereunder other than the payment of rent or other sums payable
hereunder, such violation may be restrained or such obligation enforced by
injunction.


 


(e)   Any costs and
expenses incurred by Landlord (including, without limitation, reasonable
attorney’s fees) in enforcing any of its rights or remedies under this Lease
shall be deemed to be Additional Rental and shall be repaid to Landlord by
Tenant within thirty (30) days of written demand.


 


(f)            Acceptance of
partial Rent payment shall not constitute a waiver of any of Landlord’s rights
available under this Lease or at law or equity, including, without limitation,
the right to recover possession of the Premises.


 


(g)           In the event of
a Default by Landlord, beyond all applicable notice and cure periods, or if no
notice and cure period is otherwise expressly provided in this Lease, the
failure of Landlord to commence such cure within thirty (30) days after written
notice from Tenant specifying such failure and thereafter diligently


 

















 


prosecuting the same to completion no later than
ninety (90) days after Tenant’s written notice therefor, then Tenant may, as
its sole and exclusive remedy, recover damages arising as a result of such
default. In no event shall Landlord be liable for consequential damages
incurred by Tenant, including, but not limited to lost profits or interruption
of business as a result of any alleged default by Landlord hereunder.


 


(28)         HOLDING OVER:


 


Tenant shall pay Landlord for each month, or part
thereof, that Tenant retains possession of the Premises or any part thereof
after termination or expiration of the Term of this Lease 125% of the then
current Monthly Base Rent during the first holdover month and 150% of the then
current Monthly Base Rent thereafter. Tenant hereby agrees that if it fails to
surrender the Premises within ninety (90) days from the end of the Term, or any
renewal thereof, Tenant will be liable to Landlord for any and all actual
damages which Landlord shall suffer by reason thereof, and Tenant will
indemnify and hold Landlord harmless against and from all claims and demands
made by any succeeding tenant against Landlord, founded upon delay by Landlord
in delivering possession of the Premises.


 


This Lease shall terminate at the end of the Term
without the necessity of any notice from either Landlord or Tenant to terminate
the same, and Tenant hereby waives notice to vacate or quit the Premises and
agrees that Landlord shall be entitled to the benefit of all provisions of law
respecting the summary recovery of possession of the Premises from a tenant
holding over to the same extent as if statutory notice has been given. If
Tenant holds over upon the expiration of the Lease with Landlord’s consent, but
without any written agreement, such holding over shall be deemed a
month-to-month tenancy at the rate provided above in this Section 28.


 


(29)        REDELIVERY OF
PREMISES:


 


Without limiting the provisions of Section 13
hereof, Tenant shall, on the expiration of this Lease, deliver up the Premises
in as good order and condition as it now is or may be put by Landlord,
reasonable use and ordinary wear and tear thereof and damage by fire or other
unavoidable casualty, condemnation or appropriation excepted. Upon expiration
of this Lease, Tenant shall promptly surrender all keys to the Premises to
Landlord.


 


(30)        CUMULATIVE
REMEDIES:


 


No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.


 


(31)        INTEREST ON
PAST DUE OBLIGATIONS:


 


Any amount owed by Tenant to Landlord which is not
paid when due shall bear interest at the rate of twelve percent (12%) per annum
from the due date of such amount. However, interest shall not be payable on
late charges to be paid by Tenant under this


 

















 


Lease. The payment of interest on such amounts shall
not excuse or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the interest
rate is hereby decreased to the maximum legal interest rate permitted by law.


 


(32)         ATTORNEYS’
FEES:


 


In the event any sums payable to Landlord or Tenant
hereunder are collected at law or through any attorney at law, either Landlord
or Tenant shall pay all attorneys’ fees and expenses and related litigation
costs which the other party incurs in enforcing any obligation of the Lease.


 


Tenant further agrees to pay and reimburse Landlord
for all reasonable costs and expenses (including, without limitation, any costs
and expenses incurred by Landlord for third party providers) in connection with
any consent, review and/or approval requested by Tenant including, without
limitation, any assignments, subleases, name changes, tenant financing and
lease subordination, or other related consents requested by Tenant in an amount
not to exceed Two Thousand Dollars ($2,000.00).


 


(33)         NOTICES:


 


All notices required or permitted to be given to
Tenant under this Lease shall be given to it at 188 Inverness Drive West, Suite 650,
Englewood, CO 80112 with a simultaneous copies to:


OnCURE Medical Corp., 610 Newport Center Drive, 350,
Newport Beach, CA 92660, Attention: General Counsel, Facsimile: (949) 721-6134,
and Franke Greenhouse List & Lippitt LLP, Granite Building, Second
Floor, 1228 15th Street, Denver, Colorado 80202, Attn: Thomas
M. List, Esq. Any such notice to Landlord under this Lease shall be given
to it at 1125 17th Street, Suite 2300, Denver, CO 80202,
Facsimile 303 339-9801, Attn.: Property Management. All notices shall be in
writing and sent by certified mail, postage prepaid or hand delivered by
recognized carrier or via facsimile.


 


Notice so mailed shall be effective upon the third
day after its deposit into the mails, or if by personal delivery upon receipt,
or if by fax upon written confirmation of delivery. Notice given in any other
manner shall be effective under this Paragraph (33) only if and when received
by the addressee.


 


(34) LANDLORD’S
LIABILITY:


 


(a)  The term “Landlord”
as used herein shall mean only the owner or owners at the time in question of
the fee title. In the event of any
transfer of such title, Landlord herein named (and in case of any subsequent
transfers, then the grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord’s obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this


 

















 


Lease to be performed by Landlord shall, subject as
aforesaid, be binding on Landlord’s successors and assigns, only during their
respective periods of ownership. Tenant shall attorn to any such purchaser,
grantee, assignee or transferee.


 


(b)  Tenant shall
look solely to the estate and property of Landlord in the Developed Parcel
including the rents and profits derived therefrom for the collection of any
judgment (or other judicial process) requiring the payment of money by Landlord
in the event of any default or breach by Landlord with respect to any of the
terms and provisions of this Lease to be kept, observed, and performed by
Landlord, subject, however, to the prior rights of any mortgagee of all or any
part of the property; no other assets of Landlord shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant’s claim.
Nothing in this Lease shall be construed in any event whatsoever to impose any
personal liability upon the trustees, officers or the shareholders of the
Landlord, or of the general or limited partners comprising the Landlord, as
Landlord herein or otherwise.


 


(35)         INCORPORATION
OF PRIOR AGREEMENTS: AMENDMENTS:


 


This Lease including any exhibits, schedules or
attachments, hereto, contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified in writing only,
signed by the parties in interest at the time of the modification. Except as
otherwise stated in this Lease, Tenant hereby acknowledges that neither any
cooperating broker on this transaction nor the Landlord or any employees or
agents of any of said persons has made any oral or written warranties or
representations to Tenant relative to the condition or use by Tenant of said
Premises, the Building or the Developed Parcel.


 


(36)        WAIVERS:


 


(a)          No waiver by
Landlord of any provision hereof shall be deemed a waiver of any other
provision hereof or of any subsequent breach by Tenant of the same or any other
provision. Landlord’s consent to, or approval of, any act shall not be deemed
to render unnecessary the obtaining of Landlord’s consent to or approval of any
subsequent act by Tenant.


 


(b)         The acceptance
of rent hereunder by Landlord shall not be a waiver of any preceding breach by
Tenant of any provision hereof, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord’s knowledge of such
preceding breach at the time of acceptance of such rent.


 


(37) SEVERABILITY:


 


If any provision of this Lease (or portion thereof)
shall at any time be deemed to be invalid, illegal or unenforceable by any
court of competent jurisdiction, this Lease shall


 

















 


not be invalidated thereby. Any such provision shall
be construed to be valid, legal and enforceable to the fullest extent permitted
by law and this Lease shall be read and construed as if such invalid, illegal
or unenforceable provision had not been contained herein.


 


(38)         RECORDING:


 


This Lease shall not be placed of record; however,
either Landlord or Tenant shall, upon request of the other, execute,
acknowledge and deliver to the other a “short form” memorandum of this Lease
for recording purposes.


 


(39)         BINDING EFFECT:


 


Subject to any provisions hereof restricting
assignment or subletting by Tenant, this Lease shall be binding upon and inure
to the benefit of the parties, their heirs, personal representatives, successors
and assigns.


 


(40)         AUTHORITY:


 


If Tenant is a corporation, trust, general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity and shall, at the execution of this
Lease, deliver to Landlord evidence of such authority satisfactory to Landlord.


 


(41)         CONFLICT:


 


Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provision.


 


(42)         GOVERNING LAW;
FORUM:


 


This Lease is made under and is to be governed by
the laws of the State of Colorado. Any action arising out of this Lease shall
be brought only in a court of competent jurisdiction in Arapahoe County,
Colorado.


 


(43)         JOINT AND
SEVERAL OBLIGATIONS:


 


In case two (2) or more persons or entities
shall constitute the Tenant hereunder, the covenants, obligations, and
agreements herein made binding upon the Tenant, shall be the joint and several
obligations of such persons or entities, and in
the event of the death or dissolution of any one or more of them,
the survivors or survivor shall succeed to all Tenant’s right, title and
interest hereunder.


 

















 


(44) GUARANTORS.


 


Intentionally left blank.


 


(45)         MECHANICS’
LIEN:


 


In the event Tenant performs any alterations in
accordance with Paragraph 14 of this Lease, Tenant will not cause or permit to
stand, through any action taken by it, any mechanics’, laborer’s, materialman’s
or other lien against the Premises or the Building or improvement thereon in
connection with work of any character performed or material furnished to the
Premises. Nothing in this Lease may be construed as creating an agency
relationship between Landlord and Tenant for purposes of performing
alterations, improvements, or repairs. If Tenant in good faith desires to
contest the validity or amount of any such lien Landlord agrees to cooperate in
the institution, defense and maintenance of any such action or proceeding,
provided that Tenant will indemnify and hold Landlord harmless for and from any
and all expenses, costs and liabilities in connection with any such contest.
Any such action or proceeding may be instituted and maintained by Tenant only if
and so long as the enforcement of any such lien, by sale or otherwise, will be
stayed by reason of such action or proceeding or by bond filed or a monetary
deposit paid into court as a part of such action or proceeding. Promptly after
the determination of any such contest adverse to the Tenant and prior to the
enforcement of any such lien, Tenant will pay and discharge the amount of any
such lien, together with any related interest, costs and penalties.


 


(46)         FINANCIAL
STATEMENT:


 


Tenant will provide to Landlord no more often than
one time in any calendar year upon twenty (20) business days written request
Tenant’s latest financial statements (quarterly or annual). Landlord shall be
obligated to sign a non-disclosure agreement prior to its review of Tenant’s
financial statements and may only share such statements with its mortgagee,
prospective mortgagees, purchasers and partners, and attorneys, accountants,
and other advisors of Landlord and each of the foregoing to the extent such
parties have a need to know such information.


 


(47)         JOINT VENTURE:


 


This Lease may not be deemed or construed to create
or establish any relationship of partnership, agency, or joint venture (or any
other similar relationship or arrangement) between Landlord and Tenant.


 


(48)         HAZARDOUS
SUBSTANCES:


 


For the purposes of this Lease, the term “Hazardous
Substance” shall be interpreted broadly to mean (i) petroleum, (ii) asbestos,
(iii) polychlorinated biphenyls, (iv) radioactive materials, (v) radon
gas or (vi) any chemical, material or substance defined as or included in
the definition of “hazardous substances”, “hazardous wastes”, “hazardous
materials”, “extremely hazardous waste”, “restricted hazardous waste” or “toxic
substances” or words of similar impact under any applicable laws, including but
not


 

















 


limited to, the Federal Water Pollution Act, as
amended, 33 U.S.C. ‘1251 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ‘6901 et sea., the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. ‘ 9601 et sea., the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. ‘ 5101 et sea., or any other federal or state laws,
in any amount which: (a) exceeds the “action level”, “maximum allowable
level”, or any similar base level amount which is determined by any
governmental or quasi-governmental authority or health advisory board (or any
similar body) to be the maximum allowable or recommended concentration for the
Hazardous Material in question; (b) results in any investigative or
remedial order or activity by any governmental or quasi-governmental authority;
(c) would constitute a health hazard to occupants of the Property; or (d) would
result in any material disruption or interference with Tenant’s use of the Premises.


 


Tenant warrants and represents that it shall not
use, store, treat, accumulate or transport Hazardous Substances at, on, to or
from the Premises during the Term except in the ordinary conduct of its
business and in a manner that complies with all federal, state, and local laws,
regulations, and ordinances. Tenant additionally warrants and represents that
Tenant’s occupancy of the Premises and its activities thereon shall not cause
or result in any release, leak, discharge, spill, disposal, or emission of
Hazardous Substances at, in, on, from or under the Premises during or following
the Term.


 


Unless caused by the negligence or intentional
misconduct of Landlord, its employees, agents or contractors, Tenant agrees to
indemnify and hold Landlord harmless from any and all claims, damages, fines,
judgments, penalties, costs, liabilities, or losses (including, without
limitation reasonable sums paid for settlement of claims, attorneys fees,
consultant and expert fees) arising during or after the Term from or in
connection with the presence or release of any Hazardous Substances in, on,
under or from the Premises during or after the Term where the presence of such
Hazardous Substances is caused by or arises from Tenant’s occupancy of the
Premises or otherwise from Tenant’s activities. Without limitation of the
foregoing, this indemnification shall include reasonable costs incurred due to
any investigation of the Premises or any containment, mitigation, clean-up,
removal or restoration mandated by a federal, state or local agency or
political subdivision with respect to any such Hazardous Substance present on
or released from the Premises during the Term. The provisions of this paragraph
shall survive the expiration or termination of this Lease.


 


Landlord warrants and represents that, to the best
of its knowledge, any use, storage, treatment, accumulation, or transportation
of Hazardous Substances which has occurred in or on the Developed Parcel prior
to the date hereof has been in compliance with the applicable federal, state,
or local laws, regulations, and ordinances. Landlord additionally warrants and
represents that, to the best of its knowledge, no release, leak, discharge,
spill, disposal, or emission of Hazardous Substances has occurred in, or under the
Developed Parcel prior to the date hereof.


 


Landlord agrees to indemnify and hold the Tenant
harmless from any and all claims, damages, fines, judgments, penalties, costs,
liabilities, or losses (including without


 














 


limitation reasonable sums paid for settlement of
claims, attorneys’ fees, consultant and expert fees) arising during or after
the Term from or in connection with the presence of any Hazardous Substance in
or under the Premises prior to the Term or caused by any party other than
Tenant, its employees, agents or contractors. Without limiting the foregoing,
this indemnification shall include reasonable costs incurred due to any
investigation of the Premises or any clean-up, removal or restoration mandated by
a federal, state or local agency or political subdivision, with respect to any
Hazardous Substance present on the Premises prior to the Term other than such
as may be caused by or arise out of Tenant’s occupancy of the Premises or from
Tenant’s activities. The provisions of this paragraph shall survive the
expiration or termination of this Lease.


 


(49)         RIGHT OF FIRST REFUSAL:


 


Provided no Tenant Default under this Lease has
occurred, or is continuing, at the time Tenant exercises its First Refusal Right (as defined
herein) or upon the commencement of the term for the ROFR Space (as defined
herein), if during the first eighteen (18) months of the initial Term of this
Lease, space on the sixth floor of the Building contiguous to the Premises and
labeled as the ROFR Space on Exhibit A attached hereto consisting of 3,270
rentable square feet is available to lease (hereinafter the “ROFR Space”) prior
to Landlord agreeing to lease the same space to any third party pursuant to a
bona fide letter of intent acceptable to Landlord, Landlord shall offer to
lease all and not a portion of such space to Tenant upon the same terms and
conditions as proposed by such third party (the “First Refusal Right”). The
rental rate for the ROFR Space shall be the same as that proposed by such third
party. Tenant shall have a period of five (5) business days after receipt
of Landlord’s notice in which to accept the Landlord’s offer. If Tenant does
not exercise its rights with respect to the ROFR Space by accepting the terms
in Landlord’s notice prior to the expiration of the foregoing time period, then
Tenant’s First Refusal Right and Landlord’s obligations hereunder shall
automatically terminate and Tenant shall have no further First Refusal Right
hereunder, and Landlord may thereafter lease the ROFR Space to any third party.
If Tenant elects to exercise its rights hereunder by timely accepting the terms
in Landlord’s notice, Landlord and Tenant shall, within fifteen (15) calendar
days after such election, execute and deliver an amendment to this Lease in a
form mutually agreeable to the parties which shall specifically include
comparable furniture at Landlord’s expense as
is to be provided under the terms of this Lease, and as more fully
described in the attached Exhibit H.


Tenant when exercising its First Refusal Right
hereunder must accept all of the ROFR Space offered and may not elect to lease
only a part thereof. It is expressly acknowledged and agreed to by the parties
hereto that Tenant’s First Refusal Right hereunder shall automatically expire
upon the expiration of the eighteenth (18th) month of the initial Lease Term, unless otherwise
terminated in accordance with the terms of this Paragraph 49. The rights
granted to Tenant hereunder are personal to Tenant and shall not be assignable
without Landlord’s prior written consent, which Landlord may hold in its sole
and absolute discretion.


 

















 


(50)         RIGHT OF FIRST OFFER:


 


Provided no Tenant Default under this Lease has
occurred, or is continuing, and subject to any pre-existing rights, if any, of
any other tenant in the Building, including, without limitation, existing
extension, expansion, option or modification rights, during the initial Term
hereof and before Landlord offers to lease all of the space in the Building on
the sixth floor (the “ROFO Space”), but specifically excluding the ROFR Space
which shall be governed exclusively by Article 49 above (the “Right of
First Offer”), Landlord shall notify Tenant in writing (“Landlord’s Notice”) of
the availability of the ROFO Space, the square footage of the ROFO Space
available and the rental rate therefor (“Rental Terms”). If within five (5) business
days after Tenant’s receipt of Landlord’s written notice hereunder, Tenant
notifies Landlord in writing of its intent to lease all of the ROFO Space
offered in Landlord’s Notice, then Landlord and Tenant shall execute an
amendment to this Lease, which such amendment shall include the Rental Terms
and which shall specifically include comparable furniture at Landlord’s expense
as is to be provided under the terms of this Lease, as more fully described in
the attached Exhibit H, and be in a form mutually agreeable to the
parties, for all of the ROFO Space within fifteen (15) calendar days after
Landlord’s receipt of Tenant’s notice of intent to lease. If Tenant does not
deliver its notice of intent to lease all of the ROFO Space so offered in
Landlord’s Notice within such five (5) day period, or if Landlord and
Tenant do not enter into a fully executed lease amendment for all of the ROFO
Space offered in Landlord’s Notice within such fifteen (15) day period, then
Tenant’s Right of First Offer to Lease and Landlord’s obligations hereunder
shall terminate for a period of nine (9) months and Landlord will have the
right to lease for a period of nine (9) months the space identified in the
Landlord’s Notice to a third party on the same or any other terms and
conditions, irrespective of whether such terms and conditions are more or less
favorable than those offered to Tenant.


Except as otherwise
expressly provided below, the term for the ROFO Space shall be coterminous with
the term of this Lease. Notwithstanding the foregoing, if Tenant exercises its
Right of First Offer hereunder during the last two (2) years of the
initial Term of this Lease, then the term for the entire Premises (including
the ROFO Space) shall be extended for a period of five (5) additional
years following the expiration of the initial Term, and the rental rate shall
be at the then fair market rental value, as reasonably determined by the
parties in accordance with terms of Paragraph 51 herein.


 


The exercise by Tenant of its rights under this
Paragraph shall not be construed in any way as granting Tenant the right to
vacate the Premises or to terminate the Lease of the Premises unless agreed to
by Landlord in its sole and absolute discretion. The rights granted to Tenant
hereunder are personal to Tenant and shall not be assignable without Landlord’s
prior written consent, which Landlord may hold in its sole and absolute
discretion.


 


(51)
RENEWAL OPTION:


 


Provided that no event of
default or sublease has ever occurred under any term or provision contained in the Lease and no condition exists which
with the passage of time


 

















 


or the giving of notice or both would constitute an
event of default either on the date Tenant exercises its Renewal Option (as
defined herein) or upon the commencement of the Renewal Term (as defined
herein), Tenant shall have the right and option (the “Renewal Option”) to renew
the Lease for the entirety of the Premises for one (1) separate,
additional five (5) year period (“Renewal Term”), by written notice (“Renewal
Notice”) delivered to Landlord no later than nine (9) months prior to the
expiration of the Term under the same terms, conditions and covenants contained
in this Lease, except that (a) no abatements or other concessions, if any,
applicable to the Term shall apply to the Renewal Term; (b) the monthly
Basic Rent shall be equal to the Fair Net Effective Market Rate for comparable Class A
office space being offered in the southeast Denver office submarket as of the
end of the Term as determined by Landlord and Tenant as set forth hereafter (“Fair
Net Effective Market Rate”); (c) Tenant shall have no Renewal Option
beyond the expiration of Renewal Term; and (d) all leasehold improvements
within the Premises shall be provided in their then existing condition (on an “as
is” basis) at the time the Renewal Term commences. Failure by Tenant to provide
the Renewal Notice within the time limits set forth herein shall constitute a
waiver of such Renewal Option. In the event Tenant delivers its Renewal Notice
as set forth above no later than nine (9) months prior to the expiration
of the Term, Landlord and Tenant, upon written notice from Landlord, shall have
a period of sixty (60) days in which to agree on the Fair Net Effective Market
Rate. If they agree within that period, they shall immediately execute an
amendment to the Lease stating the Monthly Base Rent for the applicable Renewal
Term. If after negotiating in good faith Landlord and Tenant shall fail to
agree upon such Fair Net Effective Market Rate within the sixty (60) day
period, then each party shall, within ten (10) days designate by written
notice to the other party one (1) licensed Colorado real estate broker with
appropriate experience and of good reputation, having at least five (5) years’
experience in the southeast Denver office submarket (“Broker(s)”). The two
Brokers so designated shall together determine whether Landlord’s determination
of the Fair Net Effective Market Rate or Tenant’s determination of the Fair Net
Effective Market Rate is closest to the Fair Net Effective Market Rate for the
space in question. Landlord and Tenant shall each require the Brokers to make
such determination and report it in writing to Landlord and Tenant within
twenty (20) days after such selection, and each party shall use its best
efforts to secure such determination within such time period. If the two
selected Brokers agree as to which rate is closest, the rate agreed to shall be
deemed the effective rental rate. If the two selected Brokers fail to agree
pursuant to this procedure, they shall together immediately select a third
Broker who shall then (within ten (10) days of the Brokers’ selection)
determine which rate is closest to the Fair Net Effective Market Rate as
determined by the third Broker. The third Broker shall notify Landlord and
Tenant of the Broker’s determination and the rental rate selected shall be the
effective rental rate. Each party will pay the fee of the Broker selected by it
and one-half (‘/2) of the fee of the third Broker.


 


(52)
ADDITIONAL EXHIBITS:


 


The following exhibits are attached hereto and
incorporated into this Lease, in addition to previously identified Exhibits A,
B, C, D, E, F, G, H and I.


 

















 


(53)         FURNITURE:


 


The Premises currently contain, or shall contain
furniture, fixtures and equipment (“FF&E”) which may be used by Tenant
during the Term. Tenant has provided Landlord with a detailed space plan
identifying the proposed location of each workstation, office or case goods
item together with a list which details the FF&E proposed by Tenant to be
used in the Premises (“Furniture Inventory List”). A copy of the Furniture
Inventory List is attached hereto as Exhibit H and incorporated herein by
reference. All of the furniture identified on the Furniture Inventory List
shall remain the property of Landlord at the end of the Term.


 


(54)         STORAGE SPACE:


 


Landlord shall lease to Tenant, for the Storage
Space Term (as defined below), space within the Building to be used and
occupied by Tenant only as storage space for the FF&E identified in the Furniture Inventory List (“Storage
Space”). The location of the Storage Space shall be determined in Landlord’s
sole and absolute discretion provided that such space is sufficient in size to
store the items listed in the Furniture Inventory List. The Storage Space shall
be made available to Tenant in broom clean condition. Landlord has no
obligation to make any improvement to the Storage Space and Tenant’s use of the
Storage Space shall at all times be in compliance with the provisions of the
Lease.


 


Tenant shall pay Landlord as rent for the Storage
Space (the “Storage Space Rent”) for the first eighteen (18) months of the
initial Term an amount equal $0.00 and for each month thereafter, an amount
equal to $10.00 per square foot of the total Storage Space until the expiration
of the Storage Space Term. The Storage Space Rent shall be payable as and when
Monthly Base Rent is payable, commencing on the date that possession of the
Storage Space is delivered to Tenant. Notwithstanding the foregoing, for
purposes of calculating Tenant’s Proportionate Share, the Storage Space shall
not be included in the rentable area of the Premises.


 


The term for the Storage Space shall commence upon
the date that possession of the Storage Space is delivered to Tenant and shall
expire upon the earlier of the date when: (i) Tenant elects to exercise
its First Refusal Right for the ROFR Space in accordance with Paragraph 49
above, (ii) the term of the Lease has expired or is otherwise terminated
in accordance with the terms of the Lease, and (iii) Tenant notifies
Landlord in writing of its election to terminate its occupancy with respect to
the Storage Space.


Landlord may from time to time upon thirty (30) days
prior written notice to Tenant, relocate any or all of the Storage Space to
other storage areas in the Building (“New Storage Space”) in which event the New Storage Space shall
be deemed to be the Storage Space hereunder. Landlord shall pay the actual and
reasonable expenses of physically moving Tenant’s property to the New Storage
Space.


 

















 


IN WITNESS WHEREOF, Landlord and Tenant have
hereunto executed this Lease as of the day and year first above written.


 


	
   

  	
  LANDLORD

  
	
   

  	
   

  
	
   

  	
  CORPOREX INVERNESS, LLC,

  
	
   

  	
  a Colorado limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  Corporex Colorado, LLC,

  
	
   

  	
   

  	
    a Colorado limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  OnCURE MEDICAL CORP., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  

  
	
   

  	
   

  	
  NAME:

  	
  David S. Chernow 

  
	
   

  	
   

  	
  Its: Chief Executive Officer

  
	
   

  	
   

  	
   

  



 






 










 


FIRST
AMENDMENT TO LEASE AGREEMENT


 


THIS FIRST AMENLIWTT TO LEASE
AGREEMENT (this “Amendment”)
is entered into to be effective this 20th day of March,
2008 (the “Amendment Date”) by and
between CORPOREX INVERNESS, LLC, a Colorado limited liability company (“Landlord”)
and ONCURE MEDICAL CORP., a Delaware corporation (“Tenant”).


 


RECITALS


 


A.                                    WHEREAS, Landlord and Tenant entered into that certain Lease
Agreement dated November 29, 2007 (the “Lease”)
for the use of Suite 650 situated in the office building located
at 188 Inverness Drive West, Englewood, Colorado 80112 (the “Building”), as more particularly described
in the Lease (the “Leased Premises”); and                                      


 


B.                                    WHEREAS, the parties desire to amend the Lease upon and subject
to the terms and conditions set forth in this Amendment.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree to amend the Lease as follows:


 


1.                                       Final Square
Footage. The Final Square Footage (as defined in Section 1
of the Lease) shall hereinafter be 12,985 rentable square feet.


 


2.                                       Proportionate
Share of Operating Expenses. Tenant’s Proportionate Share
(as defined in Section 8(a) of the Lease) shall hereinafter be
5.1976% (12,985 rentable square feet in the Leased Premises divided by 249,828
rentable square feet in the Building).


 


3.                                       Base Rent.. The Exhibit “D”
attached to the Lease is hereby deleted in its entirety and replaced with the
new Exhibit “D” attached to this Amendment.


 


4.                                       Full Force and
Effect. The Lease, as modified herein, remains in full force
and effect and is hereby ratified by Landlord and Tenant. In the event of any
conflict between the Lease and this Amendment, the terms and conditions of this
Amendment shall control.


 


5.                                       Capitalized
Terms. Capitalized terms not defined herein shall have the same meaning given
such term in the Lease.


 


6.                                       Successors and
Assigns. The terms, covenants and conditions contained in
this Amendment shall bind and inure to the benefit of the parties hereto and
their successors and assigns.


 


7.                                  Entire
Agreement. The Lease, as amended by this Amendment, contains
the entire agreement of Landlord and Tenant with respect to the subject matter
hereof, superseding all prior agreements, understandings, discussions and
negotiations, oral or written, regarding the subject matter hereof, and may not
be amended or modified except by an instrument executed in writing by Landlord
and Tenant.


 


8.                                  Modifications. The Lease and
this Amendment may not be amended or modified unless such amendment or
modification shall be in writing and signed by the parties hereto.


 

















 


EXHIBIT “D”


ANNUAL BASE
RENT


 


The
Annual Base Rent for the initial Term of this Lease is as follows:


 


	
  YEAR

  	
   

  	
  ANNUAL BASE RENT

  	
   

  	
  MONTHLY BASE RENT

  	
   

  
	
  Lease Year 1

  	
   

  	
  $26.50/RSF ($ 344,102.50)

  	
   

  	
  $

  	
  28,675.21

  	
   

  
	
  Lease Year 2

  	
   

  	
  $27.50/RSF ($ 357,087.50)

  	
   

  	
  $

  	
  29,757.29

  	
   

  
	
  Lease Year 3

  	
   

  	
  $28.50/RSF ($ 370,072.50)

  	
   

  	
  $

  	
  30,839.38

  	
   

  
	
  Lease Year 4

  	
   

  	
  $29.50/RSF ($ 383,057.50)

  	
   

  	
  $

  	
  31,921.46

  	
   

  
	
  Lease Year 5

  	
   

  	
  $30.50/RSF ($’ 396,042.50)

  	
   

  	
  $

  	
  33,003.54

  	
   

  



 


Notwithstanding
paragraph 7(a) of this Lease, the following periods are defined to be the
Lease Years.


 


	
  Lease Year 1 

  	
  March 1, 2008 through February 28, 2009 

  
	
  Lease Year 2 

  	
  March 1, 2009 through February 28, 2010 

  
	
  Lease Year 3 

  	
  March 1, 2010 through February 28, 2011 

  
	
  Lease Year 4 

  	
  March 1, 2011 through February 29, 2012 

  
	
  Lease Year 5

  	
  March 1, 2012 through February 28, 2013

  



 


Notwithstanding
the Annual and Monthly Base Rents specified above, Tenant shall not be required
to pay its Proportionate Share of Operating Expenses for the months of March, April and
May, 2008. The foregoing abatement is conditioned upon Tenant’s not having
committed a default under the Lease. In the event that Tenant defaults under
this Lease (and such default is not cured within the applicable grace period
provided for in this Lease), Tenant shall immediately pay to Landlord upon
demand a sum equal to the total amount of rent abatement which has been used by
Tenant as of the date of occurrence of such default; and all of the rent
abatement which has not been used by Tenant as of the date of occurrence of
such default shall thereby automatically terminate and become null and void,
and Tenant shall thereafter pay all Rent when due under this Lease, without
regard to the rental abatement provisions of this Lease.