Exhibit 10.40


 


LEASE AGREEMENT


 


BY
THIS LEASE dated February 1, 2001, VENTURA BUILDING PARTNERSHIP, a
California general partnership, herein called “Lessor,” leases to COASTAL
RADIATION ONCOLOGY MEDICAL GROUP, INC., a California corporation, herein
called “Lessee,” that certain real property, herein called “the Premises,” in
the City of Ventura, County of Ventura, State of California, commonly known as
2841 Cabrillo Drive, Ventura, California, and more particularly described in Exhibit A,
attached hereto.


 


ARTICLE 1.  TERM
OF LEASE


 


Original Term


 


Section 1.01.          This Lease shall be for a
term of fifteen (15) years, commencing on February 1, 2001, and ending on January 31,
2016.


 


Extended Term


 


Section 1.02.          Should Lessee perform all
the terms and conditions of this Lease and provided Lessee is not then in
default under the terms of this Lease, Lessee may extend this Lease for two (2) additional,
separate terms of ten (10) years each, commencing on expiration of the
preceding term, by giving Lessor written notice of Lessee’s desire to extend
the term hereof not less than one hundred eighty (180) days prior to expiration
of the preceding term.  This option to
extend the term of this Lease is personal to Lessee and may not be transferred
by Lessee without Lessor’s prior written consent.


 


Hold Over


 


Section 1.03.          Should Lessee hold over and
continue in possession of the Premises after expiration of the term of this
Lease or any extension thereof, Lessee’s continued occupancy of the Premises
shall be considered a month-to-month tenancy subject to all the terms and
conditions of this Lease, except that the base rent shall be in an amount equal
to 100% of the last monthly rent.  If
Lessee fails to surrender the Premises upon the expiration of this Lease,
Lessee shall indemnify and hold Lessor harmless from all loss or liability,
including without limitation, any claims made by any succeeding tenant founded
on or resulting from such failure to surrender.


 


ARTICLE 2.  RENT


 


Base Rent


 


Section 2.01.          For the first
year of the term hereof, Lessee agrees to pay to Lessor a fixed rental for the
use and occupancy of the Premises of Nineteen Thousand One Hundred Fifty
Dollars ($19,150.00) per month, payable on the first (1st) day of each and
every calendar month commencing on February 1, 2001, at 316 S.  Stratford Avenue, Santa Maria, CA 93454, or
at such other place or places as Lessor may from time to time designate by
written notice delivered to Lessee.


 


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Rent Adjustment


 


Section 2.02.          The Base Rent provided for
in Section 2.01 above shall be increased by three percent (3%) one year
after the commencement of the term hereof and annually thereafter on the same
date each calendar year until November 1, 2001.  Commencing on November 1, 2001 the Base
Rent shall be reduced to Fourteen Thousand Forty One Dollars ($14,041.00) per
month.  On November 1 of each
calendar year thereafter, including any exercised options to extend (“the
adjustment date”) the Base Rent shall be adjusted by three percent (3%) per
year.


 


Base Rent for Extension Terms


 


(a)           In the event Lessee timely
exercises its option to extend the lease term under Section 1.02 above,
then within fifteen (15) days of Lessee’s written notice to Lessor of Lessee’s
exercise of such option, Lessor and Lessee shall meet to establish the Base
Rent for the first year of the Extension Term (“Rent Meeting”).  The Base Rent per square foot of leaseable
area in the Premises for the first year of each extension term shall be the
fair market rental value of the Premises, determined in accordance with the
following formula:


 


Vault Sq. Ft. X (Market
Rent x 2.67) + Medical Sq. Ft X (Market Rent)

(divided by) total leaseable square footage


 


= Base Rent per square foot


 


As
used in the above formula, “Vault Sq. Ft.” means the total square footage of
the treatment vaults, other than any treatment vaults added at the Lessee’s
cost and expense.  “Market Rent” is the
current fair market rent per square foot for medical office space in the City
of Ventura, California on a triple net basis. 
This space will be leased (not subleased) and will be comparable in
size, location and quality to the Premises. 
“Medical Sq. Ft” refers to all leaseable space in the Premises other
than Vault Sq. Ft. “Total leaseable square footage” shall be the total
leaseable square footage in the Premises determined by survey.


 


In
the event that the parties cannot agree on the Market Rent for the first year
of an extension term, then within ten (10) days after the Rent Meeting,
Lessor and Lessee shall each specify in writing to the other party its
determination of such Market Rent Rate. 
If either party fails to submit its written determination in accordance
with this Section, the Base Rent for the extension term shall be the determination
submitted by the other party.


 


(b)           Within ten (10) days
after the parties have exchanged written determinations, Lessor and Lessee
shall mutually select three commercial realtors within the City of Ventura to
determine the Market Rent.  Each such
realtor shall (i) be disinterested; (ii) be qualified to determine
the fair market rental rates for real estate similar to the Premises; and (iii) have
been actively engaged in the leasing of comparable medical space in the City of
Ventura for a period of not less than five (5) continuous years
immediately preceding his or her appointment. 
If Lessor and Lessee are unable to mutually select three such commercial
realtors, then either party, on behalf of both, may request such appointment by
the President of the local chapter of the California Realtors Association.  If such Association is not then in existence,
either party, on behalf of both, may request such appointment by the presiding
judge of the Superior Court of the Judicial District in which the property is
located.  Each such realtor shall submit
their respective 


 


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determinations of Market Rent for the area in
writing to both parties and shall provide the basis for such determination.


 


(c)           The average of the three
written determinations of Market Rent prepared by the realtors so selected
shall be utilized to determine the Base Rent of the Premises for the initial
year of the extension term.  The costs of
the three realtors’ services shall be shared equally by the parties.  The decision of the realtors shall be binding
upon the Lessor and Lessee.


 


(d)           In the event that the
parties have not agreed on the Market Rent or the realtors have not been
selected and the Market Rent determined before the commencement of the
extension term, Lessee shall continue to pay the same lease rate in effect at
the end of the lease year immediately preceding the commencement of the
extension term.  Lessee shall pay such
sum as Base Rent until the initial Base Rent for the extension term is
determined, at which time Lessee shall promptly pay Lessor any additional rent
due by reason of any increase in the Base Rent during the extension term over
the Base Rent previously paid by Lessee. 
If the Base Rent actually paid by Lessee during this period is
ultimately determined to be more than the revised Base Rent as finally
determined as above provided, any such over payment shall constitute a credit
against the revised Base Rent, and that credit shall be applied to the
following month or months until such credit is exhausted.


 


(e)           The Base Rent as above
determined shall be subject to increase at the end of the first lease year of
the extension term in the same manner as provided in Section 2.02 above.


 


Taxes, Utilities and Operating Expenses as Additional Rent


 


Section 2.03.          In addition to the rent
specified in Sections 2.01 and 2.02 above, Lessee shall pay, as additional
rent, all Utilities, Insurance, Personal and Real Property Taxes and
Operating Expenses directly to the vendor or creditor for such items, or
otherwise as set forth in this Section 2.03.  If Lessee fails to pay any such amount,
Lessor may in its sole discretion, advance monies to pay such items, and demand
reimbursement in full from Lessee (referred to as additional rent” herein),
including without limitation any cost, expense, assessment or charge, as well
as interest as provided in this Lease.


 


Utilities


 


(a)           Lessee shall pay, and hold
Lessor and the property of Lessor including the Premises, free and harmless
from, all charges for the furnishing of gas, water, sewer, electricity,
telephone service, garbage and trash removal and other public utilities during
the entire term of this Lease or any extension thereof.  All such charges shall be paid by Lessee
directly to the provider of the service and shall be paid as they become due
and payable but in any event before delinquency.


 


Lessee
agrees that Lessor shall not be liable for damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services) or for diminution in the quality or
quantity of any service when the failure, delay, or diminution is entirely or
partially caused by:


 


(i)            Breakage repairs,
replacements, or improvements;


 


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(ii)           Strike, lockout, or other
labor trouble;


 


(iii)                               Inability to
secure electricity, gas, water, or other fuel at the Building after reasonable
effort to do so;


 


(iv)          Accident or casualty;


 


(v)           Act or default of Lessee or
other parties; or


 


(vi)          Any other cause beyond
Lessor’s reasonable control.


 


Such
failure, delay, or diminution shall not be considered to constitute an eviction
or a disturbance of Lessee’s use and possession of the Premises or relieve
Lessee from paying rent or performing any of its obligations under this
Lease.  Lessor shall not be liable under
any circumstances for a loss of or injury to property or for injury to or
interference with Lessee’s business, including loss of profits through, in connection
with, or incidental to a failure to furnish any of the utilities or services
under this Section 2.03.  Lessor may
comply with mandatory or voluntary controls or guidelines promulgated by any
government entity relating to the use or conservation of energy, water, gas,
light, or electricity or the reduction of automobile or other emissions without
creating any liability of Lessor to Lessee under this Lease as long as
compliance with voluntary controls or guidelines does not materially and
unreasonably interfere with Lessee’s use of the Premises.


 


Personal Property Taxes


 


(b)           Lessee shall pay before they
become delinquent all taxes, assessments and other charges levied or imposed by
any governmental entity on the furniture, trade fixtures, equipment and other
personal property placed by Lessee in, on or about the Premises.


 


Real Property Taxes


 


(c)           Lessee shall pay all real
property taxes and general and special assessments on the Premises, including
any increases in such taxes and assessments, before they become delinquent.


 


The
real property taxes and assessments levied against the Premises for the first
and last years of the term hereof shall be prorated between Lessor and Lessee
for purposes of this section as of 12:01 A.M.  on the date of commencement and termination
respectively of this Lease.


 


Lessee
shall have the right, at Lessee’s sole cost and expense, to protest or contest
in good faith the amount of any tax or assessment.  As a condition precedent to Lessee’s right to
protest such taxes or assessments, Lessee shall either pay the disputed amount
and file for refund or deposit with Lessor the disputed amount plus one (1) years
interest at the rate then charged by said county plus any estimated penalty
which Lessor may incur by non-payment. 
Upon such payment or deposit, Lessor shall cooperate with Lessee in
prosecuting such dispute.


 


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Operating Expenses


 


(d)           Lessee shall pay all
Operating Expenses attributable to the occupation and use of the Premises.


 


The
term “Operating Expenses” as used in this Lease shall mean all expenses, costs
and fees attributable to Lessee’s use and occupancy of the Premises under this
Lease, including but not limited to:


 


(i)            Miscellaneous operating
costs, maintenance, security services, replacement for normal wear and tear,
repair, re-striping and resurfacing of paving, insurance (including public
liability and property damage, rent continuation, boiler and machinery and
extended coverage insurance), and cleaning of the Premises and all parts
thereof and all furnishings, fixtures and equipment therein.  The term “Operating Expenses” shall include
the annual amortization of costs (including financing at the then prevailing
rate, if any) of any improvements, equipment, or devices required by any
governmental authority or incurred as a labor saving measure or to reduce
operation or maintenance expenses with respect to the Premises where such costs
are amortized over the useful life thereof.


 


(ii)           Operating Expenses shall
also include licenses, permits, charges and assessments which are levied,
assessed, imposed or collected by any governmental authority or improvement or
assessment district during any calendar year with respect to the Premises and
Lessee’s use and occupancy of the Premises and the land on which the premises
are located, and any improvements, fixtures, equipment and other property of
Lessor, real or personal, used in connection with the operation or maintenance
of the Premises (computed on a cash basis or as if paid in permitted
installments regardless of whether actually so paid), as well as any tax which
shall be levied or assessed in addition to or in lieu of any tax described in
Sections 2.03 (b) or (c) above (it being acknowledged that because of
the passage of laws which limit increases in property taxes, government
agencies may impose fees, charges, assessments or other levies in connection
with services previously furnished without charge or at a lesser charge and
which were previously paid for in whole or in part, directly or indirectly by
real property taxes), any gross excise tax or other similar tax, and any costs
or expenses of contesting any such taxes, licenses, charges or assessments, but
excluding any federal or state income or gift tax or any franchise, capital
stock, estate or Inheritance taxes.


 


Late Charges


 


Section 2.04.          If any installment of rent
or other payment required to be paid by Lessee to Lessor is not paid within ten
(10) days of the date on which it is due, a late charge equal to five percent
(5%) of the late payment shall be due from Lessee to Lessor to compensate
Lessor for the additional administrative work caused by such default and to
compensate Lessor for the loss of use of such defaulted payment.  The late charge herein shall be in addition
to any other remedy which Lessor may have hereunder for such default.


 


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Interest on Late Payments


 


Section 2.05.          If any payment required to
be paid by Lessee to Lessor is not paid within ten (10) days of the date
on which it is due, such payment shall bear interest at the maximum rate
permitted by law from the date it became due until it is paid by Lessee to
Lessor.


 


ARTICLE 3.  USE
OF PREMISES


 


Permitted Use


 


Section 3.01.          The Premises shall, during
the term of this Lease and any extensions thereof, be used for conducting a
medical and radiation oncology business, for related activities and for no
other purpose without the prior written consent of Lessor.


 


Insurance Hazards


 


Section 3.02.          Lessee shall not commit or
permit the commission of any acts on the Premises nor use or permit the use of
the Premises in any manner that will increase the existing rates for or cause
the cancellation of any fire, liability, or other insurance policy insuring the
Premises or the improvements on the Premises.


 


Waste or Nuisance


 


Section 3.03.          Lessee shall not commit or
permit the commission by others of any waste on the Premises; Lessee shall not
maintain, commit, or permit the maintenance or commission of any nuisance as
defined in Section 3479 of the California Civil Code on the Premises; and
Lessee shall not use or permit the use of the Premises for any unlawful
purpose.


 


Hazardous Materials


 


Section 3.04.          Lessee warrants and
represents that during the term hereof, and any extensions thereof, Lessee
shall not use the Premises in any manner that would be in violation of any
federal, state or local law, ordinance or regulation relating to environmental
conditions on, under or about the Premises, including but not limited to soil
and groundwater conditions.  Lessee shall
not use, generate, manufacture, produce, store or dispose of on, under or about
the Premises any hazardous materials, including without limitation, flammable
materials, explosives, asbestos, radioactive materials, hazardous wastes, toxic
substances or related injurious materials, whether injurious by themselves or
in combination with other materials, other than such materials as may be
necessary for Lessee’s normal operations on the Premises.  Lessee shall not dispose of or permit the
disposal of any hazardous materials into the sewer system serving the Premises.


 


As
used in this Section 3.04, the term “Hazardous Material” shall mean any
hazardous or toxic substance, material, or waste at any concentration that is
or becomes regulated by the United States, the State of California, or any
local government authority having jurisdiction over the Building.  Hazardous Material includes:


 


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(a)           Any “hazardous substance,”
as that term is defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) (42 United States Code
sections 9601-9675);


 


(b)           “Hazardous waste,” as that
term is defined in the Resource Conservation and Recovery Act of 1976 (RCRA)
(42 United States Code sections 6901-6992k);


 


(c)           Any pollutant, contaminant,
or hazardous, dangerous, or toxic chemical, material, or substance, within the
meaning of any other applicable federal, state or local law, regulation, ordinance,
or requirement (including consent decrees and administrative orders imposing
liability or standards of conduct concerning any hazardous, dangerous, or toxic
waste, substance, or material, now or hereafter in effect);


 


(d)           Petroleum products;


 


(e)           Radioactive material,
including any source, special nuclear, or byproduct material as defined in 42
United States Code sections 2011-2297g-4;


 


(f)            Asbestos in any form or
condition; and


 


(g)           Polychlorinated biphenyls
(PCBs) and substances or compounds containing PCBs.


 


If,
during the Lease Term (including any extensions), Lessee becomes aware of (i) any
actual or threatened release of any Hazardous Material on, under, or about the
Premises or the Building or (ii) any inquiry, investigation, proceeding,
or claim by any government agency or other person regarding the presence of
Hazardous Material on, under, or about the Premises or the Building, Lessee
shall give Lessor written notice of the release or investigation within five (5) days
after learning of it and shall simultaneously furnish to Lessor copies of any
claims, notices of violation, reports, or other writings received by Lessee
that concern the release or investigation.


 


Lessee
shall, at Lessee’s sole expense and with counsel reasonably acceptable to
Lessor, indemnify, defend, and hold harmless Lessor and Lessor’s shareholders,
directors, officers, employees, partners, affiliates, agents, successors, and
assigns with respect to all losses arising out of or resulting from the release
of any Hazardous Material in or about the Premises or the Building, or the
violation of any Environmental Law, by Lessee or Lessee’s agents, assignees,
sublessees, contractors, or invitees. 
This indemnification applies whether or not the concentrations of any
such Hazardous Material is material, the concentrations exceed state or federal
maximum contaminant or action levels, or any governmental agency has issued a
cleanup order.  This indemnification
includes:


 


(1)           Losses attributable to
diminution in the value of the Premises or the Building;


 


(2)           Loss or restriction of use
of rentable space in the Building;


 


(3)           Adverse effect on the
marketing of any space in the Building; and


 


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(4)           All other liabilities,
obligations, penalties, fines, claims, actions (including remedial or
enforcement actions of any kind and administrative or judicial proceedings,
orders, or judgements), damages (including consequential and punitive damages),
and costs (including attorney, consultant, and expert fees and expenses)
resulting from the release or violation.


 


This indemnification shall survive the expiration or termination of
this Lease.


 


If
the presence of any Hazardous Material brought onto the Premises or the
Building by Lessee or Lessee’s employees, agents, contractors, or invitees
results in contamination of the Building, Lessee shall promptly take all
necessary actions to remove or remediate such Hazardous Materials, whether or
not they are present at concentrations exceeding state or federal maximum
concentration or action levels, or any governmental agency has issued a cleanup
order, at Lessee’s sole expense, to return the Premises or the Building to the
condition that existed before the introduction of such Hazardous Material.  Lessee shall first obtain Lessor’s approval
of the proposed removal or remedial action. 
This provision does not limit the indemnification obligation set forth
in Section 3.04.


 


Compliance With Law


 


Section 3.05.          Lessee shall at Lessee’s own
cost and expense comply with all statues, ordinances, regulations, existing use
permits and requirements of all governmental entities, both federal and state
and county or municipal, relating to Lessee’s use and occupancy of the Premises
whether such statutes, ordinances, regulations, and requirements be now in
force or hereinafter enacted.  The
judgment of any court of competent jurisdiction, or the admission by Lessee in
a proceeding brought against Lessee by any government entity, that Lessee has
violated any such statute, ordinance, regulation, or requirement shall be
conclusive as between Lessor and Lessee and shall be grounds for termination of
this Lease by Lessor.  Lessor agrees that
any requirements of the Municipal, State, or Federal authorities which require
alteration of Lessor’s building shall not be the responsibility of Lessee,
unless required because of an act of Lessee or a use of the Premises by Lessee.


 


ARTICLE 4.  ALTERATIONS
AND REPAIRS


 


Maintenance


 


Section 4.01.          Lessee shall at his own cost
and expense keep and maintain all portions of the Premises as well as all
improvements on the Premises and all facilities appurtenant to the Premises,
including but not limited to electrical, plumbing, heating and air
conditioning, sewage systems, roof and outer walls in good order and repair and
in as safe and clean a condition as they were when received by Lessee from
Lessor, reasonable wear and tear excepted.


 


Should
Lessee fail to maintain the Premises as set forth above, Lessor may, at Lessor’s
option, perform or contract for the performance of such maintenance for and on
behalf of Lessee.  In such event, Lessee
shall promptly on written demand of Lessor reimburse Lessor for all cost and
expense incurred by Lessor in performing Lessee’s obligations hereunder plus
interest at the maximum rate permitted by law from the date expended by Lessor
to the date of repayment by Lessee.


 


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Alterations and Liens


 


Section 4.02.          Lessor and Lessee agree that
from time to time during the term of this Lease, Lessee may desire alterations,
changes and additions in and to the interior of the Premises and to the
Building that are necessary or convenient to the operation of its business at
the Premises.


 


Non-structural Changes


 


(a)           Lessee may, at its own
expense, make nonstructural changes to the interior of the Premises (e.g.  revisions to interior decor, carpeting,
painting, wall covering, etc.) provided that the value of the Premises shall
not be diminished thereby.  Further
provided, that any non-structural changes exceeding $5,000 in total cost must
first be approved by the Lessor prior to commencement of such changes.


 


Structural Changes


 


(b)           If Lessee desires either (i)
interior changes to the Premises of a structural nature (e.g.  relocating interior walls); or (ii) changes
to the facade or exterior walls or roof, or (iii) desires the addition of
square footage to the Premises (i.e. 
addition of Medical square footage or Vault square footage) then Lessee
shall submit detailed plans and specifications for any proposed alteration or
improvement to the Premises for Lessor’s review and approval.  The Lessor shall have the option to approve
or deny the request for structural changes in writing within 30 (thirty) days
of receipt of such request, in the reasonable discretion of the Lessor.  The failure of the Lessor to disapprove or
object to such plans and specifications or any substantial changes therein
within said thirty (30) days, shall constitute Lessor’s disapproval of the
same.  Subsequent to such approval, minor
changes in work or materials not affecting the general character of the
improvements need not be approved by Lessor but a copy of the altered plans and
specifications reflecting such changes must be promptly given to Lessor.  If approved, the Lessor shall have the option
to pay for the changes, or not, in its sole discretion.  If the Lessor chooses to pay for the changes,
then the parties shall meet immediately to negotiate an adjustment to the Base
Rent to go into effect at the completion of the alterations.  If the Lessor chooses not to pay for the
alterations, the Lessee has the option to proceed with the alterations, in its
sole discretion and at its expense, without paying any amount of rent for the
added square footage for the remaining Original Term, only the expenses
attributable to the additional space.


 


Supervision of Alterations


 


(c)           All structural changes to
the Premises involving load bearing walls which require Lessor’s approval shall
be made under the supervision of a licensed architect or licensed structural
engineer in accordance with the detailed plans and specifications submitted to
Lessor as above provided.


 


Notices of Non-Responsibility


 


(d)           Lessee shall provide Lessor
with at least twenty (20) days written notice prior to commencing any
alteration, addition or change to the Premises requiring Lessor’s approval and 


 


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Lessor shall have the right to enter the Premises to
post Notices of Non-Responsibility as provided by law.


 


Quality of Work; Ownership


 


(e)           All work with respect to any
alteration, addition or change must be performed in a good and workmanlike
manner and diligently prosecuted to completion to the end that the Premises
shall at all times be a complete unit, except during the period of work.  Furthermore, any and all alterations,
additions, improvements, and fixtures, except furniture and trade fixtures,
made or placed in or on the Premises by Lessee or any other person shall on
expiration or sooner termination of this Lease become the property of Lessor
and remain on the Premises; provided, however, that Lessor shall
have the option on expiration or sooner termination of this Lease of requiring
Lessee, at Lessee’s sole cost and expense, to remove any or all such
alterations, additions, improvements, or fixtures from the Premises (excluding
vaults).  All such changes, alterations,
and improvements shall be performed and completed strictly in accordance with
the laws and ordinances relating thereto, and in such a manner as not to impede
access to the Premises.


 


Lessee
shall not be the cause or object of any liens or allow such liens to exist,
attach to, be placed on, or encumber Lessor’s or Lessee’s interest in the
Premises, Building, or Real Property by operation of law or otherwise.  Lessee shall not suffer or permit any lien of
mechanics, material suppliers, or others to be placed against the Premises,
with respect to work or services performed or claimed to have been furnished to
Lessee or the Premises.  If any such lien
attaches or Lessee receives notice of any such lien, Lessee shall cause the
lien to be immediately released and removed of record.  Despite any other provision of this Lease, if
the lien is not released and removed within 10 (ten) days after Lessor delivers
notice of the lien to Lessee, Lessor may immediately take all action necessary
to release and remove the lien, without any duty to investigate the validity of
it.  All expenses (including reasonable
attorney fees) incurred by Lessor in connection with the lien shall be
considered additional rent under this Lease and be immediately due and payable
by Lessee.


 


Additional Requirements


 


(f)            If Lessee pays for the
changes, the following provisions shall apply to such changes:


 


(i)            The exterior of the
improvements shall be compatible with the design and appearance of the Premises
as it exists at the time of execution of this Lease.


 


(ii)           All work required in the
construction of the structural changes, including any site preparation work,
utility installations as well as actual construction shall be performed only
pursuant to a contract entered into by Lessee with a competent general
contractor and sub-contractors duly licensed as such under the Laws of the
State of California, with proof of adequate liability and workers compensation
insurance.


 


(iii)          The approval by Lessor of
any plans and specifications under this paragraph refers only to the conformity
of such plans and specifications to the general architectural plan for the
Building.  By approving such plans and
specifications, Lessor assumes 


 


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no liability or responsibility therefor and for any
defect in any structure constructed from such plans or specifications.


 


Inspection by Lessor


 


Section 4.03.          Lessee shall permit Lessor
or his agents to enter into and upon the Premises during business hours for the
purpose of inspecting the same, or for the purpose of posting notices of
non-responsibility for alterations, additions or repairs or for the purpose of
placing upon the property in which the Premises are located any usual or
ordinary “for sale” signs, without any rebate of rent and without any liability
to Lessee for any loss of occupation or quiet enjoyment of the Premises thereby
occasioned.  Lessee shall permit Lessor,
at any time within one hundred eighty (180) days prior to the expiration of
this Lease, to place upon the Premises any usual or ordinary “to let” or “to
lease” signs, provided that such entries made by Lessor hereunder shall not
unreasonably interfere with the conduct of Lessee’s business.


 


Surrender of Premises


 


Section 4.04.          On expiration or sooner
termination of this Lease, or any extensions or renewals of this Lease, Lessee
shall promptly surrender and deliver the Premises to Lessor in as good
condition as they are on at the date of possession, reasonable wear and tear
excepted.


 


ARTICLE 5.  INDEMNITY
AND INSURANCE


 


Hold-Harmless Clause


 


Section 5.01.          To the fullest extent
permitted by law, Lessee, on its behalf and on behalf of its successors and
assignees, waives all claims (in law, equity, or otherwise) against Lessor, its
officers, directors, principals, agents, successors, assignees and agent
arising out of, knowingly and voluntarily assumes the risk of, and agrees that
Lessor shall not be liable to Lessee for any of the following acts or failure
to act set forth in paragraphs (a) to (c) below.  Lessor shall not be liable under this clause
regardless of whether the liability results from any active or passive act,
error, omission, or negligence of any of the Lessor; or is based on claims in
which liability without fault or strict liability is imposed or sought to be
imposed on any of the Lessor.  This
exculpation clause shall not apply to claims against Lessor to the extent that
a final judgment of a court of competent jurisdiction establishes that the
injury, loss, damage, or destruction was proximately caused by Lessor’s fraud,
willful injury to person or property, or violation of law.


 


(a)           The death or injury of any
person or persons, including Lessee or any person who is an employee or agent
of Lessee, or by reason of the damage to or destruction of any property,
including property owned by Lessee or any person who is an employee or agent of
Lessee, and caused or allegedly caused by either the condition of the Premises,
or some act or omission of Lessee or of some agent, contractor, employee,
servant, sublessee, or concessionaire of Lessee on the Premises;


 


(b)           Any work performed on the
Premises or materials furnished to the Premises at the instance or request of
Lessee or any agent or employee of Lessee;


 


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(c)           Lessee’s failure to perform
any provision of this Lease or to comply with any requirement imposed on Lessee
or the leased Premises by any duly authorized governmental agency or political
subdivision.


 


Liability Insurance


 


Section 5.02.          Lessee shall, at its own
cost and expense, obtain and maintain during the entire term of this Lease and
any renewals or extensions thereof, a broad form comprehensive coverage policy
of public liability insurance issued by an insurance company or companies rated
by Best as A+ or better and authorized to conduct insurance business in the
State of California and insuring Lessee and Lessor against loss or liability
caused by or connected with Lessee’s occupation and use of the Premises under
this Lease in amounts not less than:


 


(a)           $1,000,000,00 combined
single limit for injury to or death as a result of any accident or incident.


 


(b)           $2,000,000.00 for damage to
or destruction of any property of others.


 


Such
public liability insurance, and property damage insurance shall insure
performance by Lessee of the indemnity provisions of Section 5.01 above.  Both parties shall be named as co-insured,
and the policy shall contain cross liability endorsements, if available.  The policy shall be primary insurance for all
claims under it and provide that any insurance carried by Lessor is strictly
excess, secondary, and noncontributing with any insurance carried by
Lessee.  Lessee may provide such
insurance under a single policy or under one or more separate policies.


 


Every
three (3) years, Lessor may increase the amount of public liability and
property damage insurance coverage required hereunder, if at that time the
existing coverage is not adequate in the opinion of Lessor’s insurance broker
or lender(s).


 


Fire and Casualty Insurance


 


Section 5.03.          Lessee shall, at Lessee’s
sole cost and expense, at all times during the term hereof, and any extensions
thereof, keep all buildings, improvements and other structures on the Premises
insured for their full replacement cost against loss or destruction by fire and
the perils, including vandalism and malicious mischief, commonly covered under
standard extended coverage endorsements in Ventura County, California.  Lessor shall be named as an additional
insured on all such policies and the policies shall contain a cross-liability
endorsement.


 


“Full
replacement cost” as used herein shall mean the actual cost of replacement for
the buildings and other improvements on the Premises, as determined from time
to time by Lessor.  Upon notification to
Lessee in writing of Lessor’s determination of full replacement cost, Lessee
shall, within thirty (30) days of such written notice, increase the amount of
the insurance carried to the amount stated in the notice.


 


Business Interruption Insurance


 


Section 5.04.          Lessee shall, at all times
during the term of this Lease and any extensions thereof, maintain at Lessee’s
sole cost and expense a policy of business interruption insurance, 


 


12

















 


ensuring the rent provided for in this Lease will be
paid to Lessor for a period not less than one (1) year in the event the
Premises are destroyed or damaged so as to render operation of Lessee’s
business impossible or impractical by any casualty insured against by standard
fire and extended coverage insurance.


 


Lessee’s Personal Property


 


Section 5.05.          Lessee shall, at all times
during the term of this Lease and any extensions thereof, maintain at Lessee’s
sole cost and expense an insurance policy issued by a company acceptable to
Lessor insuring for their full insurable value all furniture, fixtures,
equipment and alterations or improvements made to the Premises by Lessee
against loss or destruction by fire and the perils commonly covered under the
standard extended coverage endorsement to fire insurance policies in Ventura
County.  Any loss payable under such
insurance shall be payable to Lessee and shall be used to repair or replace
such furniture, fixtures, equipment and alterations and improvements.


 


Cancellation Clause


 


Section 5.06.          Any policy of insurance
required to be obtained and maintained by Lessee under this Article shall be
written by insurance companies authorized to do business in the State of
California.  Each such policy of
insurance shall expressly provide that it cannot be cancelled for any reason or
altered in any manner unless at least thirty (30) days prior written notice has
been given to Lessor by the insurance company.


 


Deposit of Insurance with Lessor


 


Section 5.07.          Lessee shall, prior to
taking possession of the Premises and promptly thereafter when any such policy
is replaced, rewritten, or renewed, deliver to Lessor a true and correct copy
of each insurance policy required by this Article of this Lease or a
certificate executed by the insurance company or companies or their authorized
agent evidencing such policy or policies.


 


Lessor’s Right to Procure Insurance


 


Section 5.08.          If at any time Lessee fails
to procure or maintain the insurance required by this Article, Lessor may
obtain that insurance and pay the premiums on it for the benefit of
Lessee.  Any amounts paid by Lessor to
procure or maintain insurance pursuant to this section shall be immediately due
and repayable to Lessor by Lessee with the next then due installment of rent
under this Lease.  Failure to repay at
that time any amount expended by Lessor shall be considered the same as a
failure to pay rent and a default by Lessee under this Lease.


 


Lessor’s Indemnity


 


5.09.  Lessor expressly agrees to indemnify,
protect, defend and hold Lessee harmless from all claims arising from any
breach or default in the performance of any obligation to be performed by
Lessor under the terms of this Lease and from and against all costs, loss,
damage, legal expenses and liabilities incurred in connection with such claim
or any action or proceeding brought thereon. 
Notwithstanding anything to the contrary herein, any claim for indemnity



 


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brought
by the Lessee under this provision shall be limited to Lessor’s interest in the
Premises, and Lessee shall not have recourse to any other assets of Lessor or
to the assets of any partner of Lessor for such claim.


 


ARTICLE 6.  SIGNS
AND TRADE FIXTURES


 


Installation and Removal of Trade Fixtures


 


Section 6.01.          Lessee shall have the right
at any time and from time to time during the term of this Lease and any renewal
or extension of such term, at Lessee’s sole cost and expense, to install and
affix in, to, or on the Premises such items, herein called “trade fixtures,”
for use in Lessee’s trade or business as Lessee may, in its sole discretion,
deem advisable.  Any and all such trade
fixtures that can be removed without structural damage to the Premises or any
building or improvement on the Premises shall remain the property of the Lessee
and may be removed by Lessee at any time or times prior to the expiration or
sooner termination of this Lease.


 


Unremoved Trade Fixtures


 


Section 6.02.          Any trade fixtures described
in this Article that are not removed from the Premises by Lessee within ten
(10) days after the expiration or sooner termination, regardless of cause, of
this Lease shall be deemed abandoned by Lessee and shall automatically become
the property of Lessor as owner of the real property to which they are affixed,
unless Lessor notifies Lessee, in writing, of Lessor’s election to have Lessee
remove such trade fixtures and to repair any damage caused thereby.  Upon such election by Lessor to require
Lessee to remove such trade fixtures, Lessee shall have fifteen (15) days from
the date of such notice in which to remove such trade fixtures and repair any
damage caused by such removal.  If Lessee
fails to remove such trade fixtures and repair any such damage, Lessor may do
so at Lessee’s sole cost and expense, including any costs of storing such property.  Such costs and expenses, if incurred by
Lessor for Lessee’s benefit, shall be promptly, upon written demand therefor,
reimbursed to Lessor by Lessee, together with interest at the maximum rate
permitted by law from the date expended by Lessor to the date of reimbursement
by Lessee.


 


Signs


 


Section 6.03.          Lessee may place and
maintain, or permit any other person to place and maintain any sign on the
Premises providing such sign is in compliance with then existing governmental
regulations.  Lessee may not place any
decoration, lettering, or advertising matter on the glass of any exterior show
window of the Premises.  Lessee shall
maintain such sign at all times during this Lease in good appearance and
repair.  On expiration or sooner
termination of this Lease, all such signs not removed from the Premises by
Lessee on such expiration or termination of this Lease may, without liability,
be destroyed by Lessor.


 


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ARTICLE
7.  DAMAGE, DESTRUCTION OR CONDEMNATION


 


Duty to Repair or Restore


 


Section 7.01.          If any improvements,
including the buildings and other structures, located on the Premises are
damaged or destroyed during the term of this Lease or any extension thereof,
the damage shall be repaired as follows:


 


(a)           If the damage or destruction
is caused by a peril against which fire and extended coverage insurance is
required to be carried under this Lease, Lessee shall repair that damage as
soon as reasonably possible and restore the Premises and improvements to
substantially the same condition as existed before the damage or destruction,
regardless of whether the insurance proceeds are sufficient to cover the actual
cost of repair or restoration.  If
insurance required to be carried by Lessee under this Lease has lapsed or not
been carried, Lessee shall be solely responsible for the full cost and expense
of necessary repairs and restoration.


 


(b)           If the damage or destruction
is caused by a peril against which insurance is not required to be carried by
this Lease, Lessor, subject to Lessor’s right to terminate this Lease described
in Section 7.02, shall repair that damage as soon as reasonably possible and
restore the Premises to substantially the same condition as existed before the
damage or destruction.


 


(c)           Whether the damage of
destruction is caused either by a peril against which fire and extended
coverage insurance is required by this Lease to be carried or by a peril
against which insurance is not required to be carried by this Lease, Lessee
expressly waives any right under Civil Code Sections 1931-1933 to terminate
this Lease for damage or destruction to the Premises.


 


Termination of Lease for Certain Losses


 


Section 7.02.          (a)  Notwithstanding any other provision of this
Lease, if any improvements located on the Premises are damaged or destroyed to
such extent it will cost more than $100,000.00 to repair or replace them, and
the damage or destruction is caused by a peril against which insurance is not
required to be carried by this Lease, Lessor may terminate this Lease by giving
Lessee written notice of the termination. 
The notice must be given within slit/ (60) days after the occurrence of
the damage or destruction.


 


(b)           Lessee or Lessor shall have
the right to terminate this Lease under either of the following circumstances:


 


(i)            If the Premises are damaged
or destroyed from any cause whatsoever, insured or uninsured, and the laws then
in effect do not permit the repair or restoration of the Premises provided for
in this Article; or


 


(ii)           If the Premises are damaged
or destroyed from any cause whatsoever, insured or uninsured, during the last
year of the term of this Lease or any extension thereof (provided Lessee has
not elected before the date of damage or destruction to extend the term of this
Lease in accordance with Section 1.02).


 


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(c)           Either party may terminate
this Lease by giving written notice of termination to the other party not later
than fourteen (14) days after the right to terminate accrues, and such
termination shall be effective as of the date of the notice of
termination.  In the event of a
termination under subsection (b), Lessee shall not be entitled to collect any
insurance proceeds attributable to insurance policies covering the Premises or
improvements except those proceeds attributable to Lessee’s personal property
and trade fixtures.


 


(d)           If this Lease is terminated
pursuant to either subsection (a) or (b) above, the rent and other sums payable
by Lessee to Lessor under this Lease shall be prorated as of the termination
date.  If any such sums have been paid in
advance by Lessee, Lessor shall refund them to Lessee for the unexpired period
for which the payment has been made.


 


Time for Construction of Repairs


 


Section 7.03.          Any and all repairs and
restorations of improvements required by this Article shall be commenced by
Lessor or Lessee, as the case may be, within a reasonable time after the
occurrence of the damage or destruction requiring the repairs or restoration;
shall be diligently pursued after being commenced; and shall be completed
within a reasonable time after the loss. 
If Lessor is required under this Lease to perform the repairs and
restoration, Lessor shall cause the repairs and restoration to be completed
within 180 days after the occurrence of the event causing destruction or Lessee
shall have the right to terminate this Lease, unless the delays are caused by
events outside the control of Lessor.


 


Insurance Proceeds


 


Section 7.04.          If the damage or destruction
is caused by a peril against which fire and extended coverage insurance is
required to be carried and maintained under this Lease by Lessee, the proceeds
of insurance shall be paid directly to the parties for the purpose of making
the necessary repairs to the Premises as required under this Lease.


 


Abatement of Rent


 


Section 7.05.          In the event of repair,
replacement or restoration as herein provided, the Base Rent payable under this
Lease shall be abated proportionately with the degree to which Lessee’s use of
the Premises is impaired, from the date of the damage until completion of
repairs plus one (1) calendar month. 
Lessee shall not be entitled to any compensation of damages for loss in
the use of all or part of the Premises and/or for any inconvenience or annoyance
occasioned by such damage, repair, replacement or reconstruction.


 


Total Condemnation


 


Section 7.06.          Should, during the term of
this Lease or any renewal or extension thereof, title and possession of all of
the Premises be taken under the power of eminent domain by any public or
quasi-public agency or entity, this Lease shall terminate as of 12:01 A.M.  on the date actual physical possession of the
Premises is taken by the agency or entity exercising the power of eminent
domain and both Lessor and Lessee shall thereafter be released from all
obligations, except those specified in Section 7.10 of this Lease, under this
Lease.


 


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Termination Option for Partial Condemnation


 


Section 7.07.          Should, during the term of
this Lease or any extension thereof, title and possession of only a portion of
the Premises be taken under the power of eminent domain by any public or
quasi-public agency or entity, Lessee may, at Lessee’s option, terminate this
Lease if more than 35 percent of the floor space or more than 55 percent in
value of the Premises is taken under the power of eminent domain.  Lessee shall exercise its option by giving
written notice to Lessor within 30 days after actual physical possession of the
portion subject to the eminent domain power is taken by the agency or entity
exercising that power.  This Lease shall
terminate as of 12:01 A.M.  on the date
the notice is deemed given to Lessor but the rent specified in Article 2 of
this Lease shall be reduced in the manner specified in Section 7.08 below from
the date of taking to the date of termination of the lease.


 


Partial Condemnation Without Termination


 


Section 7.08.          Should Lessee fail to
exercise the option described in Section 7.06 of this Lease or should the
portion of the Premises taken under the power of eminent domain be insufficient
to give rise to the option described in Section 7.07 of this Lease, then, in
that event:


 


(a)           This Lease shall terminate
as to the portion of the Premises taken by eminent domain as of 12:01 A.M.  on the day, herein called the “date of
taking,” actual physical possession of that portion of the Premises is taken by
the agency or entity exercising the power of eminent domain;


 


(b)           The rent specified in
Article 2 of this Lease shall, after the date of taking, be reduced by an
amount that bears the same ratio to the rent specified in Article 2 of this
Lease as the square footage floor space of the portion of said premise taken
under the power of eminent domain bears to the total square footage floor space
of the Premises as of the date of this Lease; and


 


(c)           Lessor, at Lessor’s own cost
and expense, will remodel and reconstruct the building remaining on the portion
of the Premises not taken by eminent domain into a single efficient
architectural unit as soon after the date of taking, or before, as can be
reasonably done; provided, however, that the rent specified in
this Lease shall not be abated or reduced, except as provided in subparagraph
(b) of this section, during such remodeling and reconstruction.


 


Condemnation Award


 


Section 7.09.          Should, during the term of
this Lease or any renewal or extension thereof, title and possession of all or
any portion of the Premises be taken under the power of eminent domain by any
public or quasi-public agency or entity, the portion of the compensation or
damages for the taking awarded to each of the parties to this Lease, Lessor and
Lessee, shall belong to and be the sole property of the party Lessor or Lessee,
to whom it is awarded.  Lessee shall be
entitled to that portion of the compensation or damages awarded for the eminent
domain taking that represents (i) reasonable value of Lessee’s rights under
this Lease for the unexpired term of this Lease and (ii) the cost or loss
sustained by Lessee because of the removal of Lessee’s trade fixtures,
equipment and furnishings from the portion of the Premises taken by eminent
domain.


 


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Arbitration of Condemnation Award


 


Section 7.10.          Should separate awards not
be made to Lessor and Lessee for the taking by eminent domain of all or any
portion of the Premises, and should Lessor and Lessee be unable to agree on the
manner the total award is to be divided between them pursuant to Section 7.09
of this Lease, the proper division of the award between Lessor and Lessee shall
be settled by arbitration as provided in Section 9.03.


 


Lessee’s Waiver


 


Section 7.11.          Lessee agrees that its
rights to terminate this Lease due to partial condemnation are governed by this
Section.  Lessee waives all rights it may
have under California Code of Civil Procedure section 1265.13, or otherwise, to
terminate this Lease based on a partial condemnation.


 


ARTICLE 8.  DEFAULT,
ASSIGNMENT, AND TERMINATION


 


Subleasing or Assigning as Breach


 


Section 8.01.          Lessee shall not encumber,
assign, or otherwise transfer this Lease, any right or interest in this Lease,
or any right or interest in the Premises or any of the improvements that may
now or hereafter be constructed or installed on the Premises without the
express written consent of Lessor first had and obtained.  Neither shall Lessee sublet the Premises or
any part thereof or allow any other person, other than Lessee’s patrons,
agents, servants, and employees, to occupy the Premises or any part thereof
without the prior written consent of Lessor. 
The consent of Lessor to any assignment of Lessee’s interest in this
Lease or the subletting by Lessee of the Premises or parts of the Premises
shall not be unreasonably withheld.  A
consent by Lessor to one assignment, one subletting, or one occupation of the
Premises by another person shall not be deemed to be a consent to any
subsequent assignment, subletting, or occupation of the Premises by another
person.  Any encumbrance, assignment,
transfer, or subletting without the prior written consent of Lessor, whether it
be voluntary or involuntary, by operation of law or otherwise, is void and
shall, at the option of Lessor, terminate this Lease.  Notwithstanding the above, Lessee may assign
or sublease the Premises, or portions thereof, to a subsidiary, affiliate or
parent of Lessee.  Such permitted
assignment shall not relieve Lessee or any person who has personally guaranteed
Lessee’s performance of this Lease from any liability under this Lease or any
such guarantee.


 


Lessee’s Default


 


Section 8.02.          The occurrence of any one or
more of the following events shall constitute a default under this Lease by
Lessee:


 


(a)           Non-curable Defaults:  (i) 
The vacation or abandonment of any substantial portion of the Premises
by Lessee for a period of five (5) business days or longer,


 


(ii)           Any involuntary transfer of
Lessee’s interest in this Lease or any voluntary transfer, attempted or actual,
of Lessee’s interest in this Lease, without Lessor’s prior written consent, in
violation of Section 8.01;


 


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(iii)          If the leasehold interest of
Lessee is levied upon under execution or is attached by process of law and said
levy or attachment is not promptly released;


 


(iv)          If:  (1) 
all or substantially all of the Lessee’s assets are placed in the hands
of a receiver or trustee, and such receivership or trusteeship continues for a
period of sixty (60) days, or


 


(2)           if Lessee makes an
assignment for the benefit of creditors or is adjudicated a bankrupt, or


 


(3)           if Lessee institutes any
proceedings under any provision of the Bankruptcy Code or under any other act
relating to the subject of bankruptcy wherein Lessee seeks to be adjudicated a
bankrupt, be discharged of its debts, or effect a plan of liquidation,
composition, arrangement or reorganization, or


 


(4)           if any involuntary
proceeding is filed against Lessee under any such bankruptcy laws and Lessee
consents thereto or acquiesces therein by pleading or default,


 


then
any such act shall be deemed a breach of this Lease, and neither this Lease nor
any interest in and to the Premises shall become an asset in any of such
proceedings and, in any such event, and in addition to any and all rights or
remedies of Lessor hereunder or provided by law, this Lease shall terminate
automatically as of the date on which any one or more of the above-described
occurrences takes place.  In such event,
it shall be lawful for Lessor to re-enter the Premises and take possession
thereof and remove all persons and all of Lessee’s personal property, fixtures,
equipment, alterations, improvements and utility installations therefrom, and
Lessee shall have no further claim to the Premises or under this Lease.  Nothing contained herein shall limit or
prejudice the right of Lessor to recover damages by reason of any such
termination equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount is greater, equal to, or less than
the amount of damages recoverable under the provisions of this Article.  However, the foregoing provisions in this
Article shall be subject to the Bankruptcy Code, as heretofore and hereafter
amended.


 


(b)           Curable Defaults:  (i) 
The failure by Lessee to make any payment of Basic Rent, Additional Rent
or any other payment required to be made by Lessee hereunder as and when due
and which shall continue for a period of ten (10) business days after written
notice thereof from Lessor to Lessee; provided  however, any such
notice shall be in lieu of, and not in addition to, any notice required under
the California Code of Civil Procedure or any other law, regulation or
ordinance; or


 


(ii)           The failure by Lessee to
observe or perform any non-monetary covenants, conditions or provisions of this
lease to be observed or performed by Lessee, Other than the aforementioned
non-curable defaults, within thirty (30) days after Lessee has been given
written notice of such failure. 
Notwithstanding the foregoing, if Lessee cannot reasonably cure such
default within thirty (30) days, Lessee shall not be in default hereunder so
long as Lessee commences to cure the default within such thirty (30) day period
and thereafter diligently and in good faith pursues such cure to completion.


 


19














 


Lessors Default


 


Section 8.03.          (a)  Lessor shall be in
default if it fails or refuses to perform any provision of this Lease that it
is obligated to perform and such failure continues for thirty (30) days after
written notice thereof from Lessee detailing such failure.  Notwithstanding the foregoing, if Lessor
cannot reasonably cure such default within thirty (30) days, Lessor shall not
be in default hereunder so long as Lessor commences to cure the default within
such thirty (30) day period and thereafter diligently and in good faith pursues
such cure to completion.


 


(b)           If Lessor is in default
hereunder, and as a consequence Lessee recovers a money judgment against
Lessor, such judgment shall be satisfied only out of the proceeds of sale
received on execution of the judgment and levy against the right, title, and
interest of Lessor in the Premises, and out of rent or other income from such
real property receivable by Lessor or out of the consideration received by
Lessor from the sale or other disposition of all or any part of Lessor’s right,
title, and interest in the Premises. 
Neither Lessor, nor any partner, agent, officer, director or employee of
Lessor shall be personally liable for any portion of such a judgment.


 


Abandonment


 


Section 8.04.          If Lessee vacates or
abandons the Premises, this Lease shall continue in effect unless and until
expressly terminated by Lessor, and Lessor shall have all of the remedies
provided by this Lease or by law, including without limitation, the right to
maintain Lessee’s right to possession and to recover Rent as it becomes due
hereunder.  Lessor shall not be deemed to
have terminated this Lease other than by written notice of termination from
Lessor.  At any time subsequent to
vacation or abandonment of the Premises by Lessee, Lessor may give notice of
termination and shall thereafter have all of the rights hereinafter set forth.


 


Termination


 


Section 8.05.          Following the occurrence of
any default, Lessor shall have the right, so long as the default continues, to
terminate this Lease by written notice to Lessee setting forth:  (a) the default; (b) the
requirements to cure it; and (c) a demand for possession, which shall be
effective in accordance with the notice provisions specified in Section 9.04.


 


Possession


 


Section 8.06.          Following termination under Section 8.05,
without prejudice to any other remedies Lessor may have by reason of Lessee’s
default or of such termination, Lessor may then or at any time thereafter, (a) peaceably
re-enter the Premises, or any part thereof, upon voluntary surrender by Lessee,
or expel or remove Lessee therefrom and any other persons occupying them, using
such legal proceedings as are then available; (b) repossess and enjoy the
Premises, or relet the Premises or any part thereof for such term or terms,
which may be for a term extending beyond the Term, at such rental or rentals
and upon such other terms and conditions as Lessor in its sole discretion shall
determine, with the right to make reasonable alterations and repairs to the
Premises; and (c) remove all personal property therefrom.  Lessee hereby expressly waives any and all
rights of redemption granted by or under any present or future law in the event
of Lessee’s being evicted or dispossessed for any cause, or in the event of
Lessor’s obtaining 


 


20

















 


possession of the Premises, or by reason of the
violation by Lessee of any of the items, covenants or conditions, of this
Lease, or otherwise.


 


Recovery


 


Section 8.07.          Following termination under Section 8.05,
Lessor shall have all the rights and remedies of a Lessor provided by Section 1951.2
of the California Civil Code.  The amount
of damages which Lessor may recover following termination shall include:  (a) the worth at the time of the award
of the unpaid Rent which had been earned at the time of termination; (b) the
worth at the time of the award of the amount by which the unpaid Rent which
would have been earned after termination until the time of the award exceeds
the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of the award of the amount
by which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of rental loss Lessee proves could be reasonably avoided;
and (d) any other amount necessary to compensate Lessor for all detriment
proximately caused by Lessee’s failure to perform its obligations under this
Lease.  The “worth at the time of the
award” of the amounts referred to in (a) and (b) above shall be
computed by allowing interest at the maximum rate permitted by law.  The “worth at the time of the award” of the
amount referred to in (c) above shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one (1%) percent.


 


Additional Remedies


 


Section 8.08.          In addition to the foregoing
remedies, Lessor shall, so long as this Lease is not terminated, have the right
to remedy any default of Lessee, to maintain or improve the Premises without
terminating this Lease, to incur expenses on behalf of Lessee in seeking a new
sublessee, or to cause a receiver to be appointed to administer the Premises
and new or existing subleases, and to add to the Rent payable hereunder all of
Lessor’s reasonable costs in so doing, with interest at the maximum rate
permitted by law.


 


Other


 


Section 8.09.          If Lessee causes or
threatens to cause a breach of any of the covenants, agreements, terms or
conditions contained in this Lease, Lessor shall be entitled to retain all sums
held by Lessor, by any trustee or in any account provided for herein, to enjoin
such breach or threatened breach, and to invoke any right and remedy allowed at
law or in equity or by statute or otherwise as though re-entry, summary
proceedings and other remedies were not provided for in this Lease.


 


Cumulative


 


Section 8.10.          Each right and remedy of
Lessor provided for in this Lease shall be cumulative and shall be in addition
to every other right or remedy provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise, and shall not preclude
the simultaneous or later exercise by Lessor of any or all other rights or
remedies provided for in this Lease or now or hereafter existing in law or in
equity or by statute or otherwise.


 


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No Waiver


 


Section 8.11.          No failure by Lessor or
Lessee to insist upon the strict performance of any term hereof or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial payment of Rent during the continuance of any such breach shall
constitute a waiver of any such breach or of any such term.  Efforts by Lessor to mitigate the damages
caused by Lessee’s breach of this Lease shall not be construed to be a waiver
of Lessor’s right to recover damages under this Article.  Nothing in this Article affects the
right of Lessor to indemnification by Lessee for liability arising prior to the
termination of this Lease for personal injuries or property damage.


 


Written Action


 


Section 8.12.          No act or thing done by
Lessor or its agents during the Term hereof shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
premises shall be valid unless made in writing and signed by Lessor.  Neither the reference in this Lease to any
particular remedy nor the pursuit of any particular remedy shall preclude
Lessor from any other remedy Lessor might have, either at law or in equity.


 


Replacement of Statutory Notice Requirements


 


Section 8.13.          When this Lease requires
service of a notice, that notice shall replace rather than supplement any
equivalent or similar statutory notice, including any notices required by Code
of Civil Procedure section 1161 or any similar or successor statute.  When a statute requires service of a notice
in a particular manner, service of that notice (or a similar notice required by
this Lease) in the manner required by Section 9.04 shall replace and
satisfy the statutory service-of-notice procedures, including those required by
Code of Civil Procedure section 1162 or any similar or successor statute.


 


Continuation of Lease in Effect


 


Section 8.14.          Lessor shall have the remedy
described in Civil Code section 1951.4, which provides that, when a Lessee has
the right to sublet or assign (subject only to reasonable limitations), the
Lessor may continue the lease in effect after the Lessee’s breach and
abandonment and recover Rent as it becomes due. 
Accordingly, if Lessor does not elect to terminate this Lease on account
of any default by Lessee, Lessor may enforce all of Lessor’s rights and
remedies under this Lease, including the night to recover all Rent as it
becomes due.


 


Efforts To Relet


 


Section 8.15.          For purposes of this Article 8,
Lessee’s right to possession shall not be considered to have been terminated by
Lessors efforts to relet the Premises, by Lessor’s acts of maintenance or
preservation with respect to the Premises, or by appointment of a receiver to
protect Lessor’s interests under this Lease. 
This list is merely illustrative of acts that may be performed by Lessor
without terminating Lessee’s right to possession.


 


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ARTICLE 9.  MISCELLANEOUS


 


Force Majeure - Unavoidable Delays


 


Section 9.01.          Should the performance of
any act required by this Lease to be performed by either Lessor or Lessee be
prevented or delayed by reason of an act of God, strike, lockout, labor
troubles, inability to secure materials, restrictive governmental laws or
regulations, or any other cause except financial inability, not the fault of
the party required to perform the act, the time for performance of the act will
be extended for a period equivalent to the period of delay and performance of
the act during the period of delay will be excused; provided, however,
that nothing contained in this section shall excuse the prompt payment of rent
or other sums by Lessee as required by this Lease or the performance of any act
rendered difficult solely because of the financial condition of the party,
Lessor or Lessee, required to perform the act.


 


Attorney’s Fees


 


Section 9.02.          (a)  Should any
litigation be commenced between the parties to this Lease concerning the
Premises, this Lease, or the rights and duties of either in relation thereto,
the party, Lessor or Lessee, prevailing in such litigation shall be entitled,
in addition to such other relief as may be granted in the litigation, to a
reasonable sum as and for his attorney’s fees in such litigation which shall be
determined by the court in such litigation or in a separate action brought for
that purpose.


 


(b)           If Lessor is made a party
defendant to any litigation concerning this Lease or the leased Premises or the
occupancy thereof by Lessee, then Lessee shall hold Lessor harmless from all
liability by reason of said litigation, including reasonable attorney’s fees
and expenses incurred by Lessor in any such litigation, whether or not any such
litigation is prosecuted to judgment, provided  however, it is
agreed between Lessor and Lessee that if the litigation referred to in this Section arises
out of no act, fault, or negligence of the Lessee, there shall be no obligation
on the part of Lessee to hold harmless the Lessor from said litigation.


 


(c)           If Lessee breaches any term
of this Lease, Lessor may employ an attorney or attorneys to protect Lessor’s
rights hereunder, and in the event of such employment following any breach by
Lessee, Lessee shall pay Lessor reasonable attorney’s fees and expenses
incurred by Lessor, whether or not an action is actually commenced against
Lessee by reason of said breach.


 


Arbitration of Disputes


 


Section 9.03.          IF ANY DISPUTE ARISES BETWEEN
LESSOR AND LESSEE CONCERNING THE PREMISES, ANY PROVISION OF THIS LEASE OR THE
RIGHTS AND DUTIES OF EITHER IN REGARD THERETO, THE DISPUTE SHALL BE SETTLED BY
ARBITRATION AS PROVIDED IN THIS SECTION. 
EACH PARTY SHALL APPOINT AN ARBITRATOR AND GIVE THE OTHER PARTY WRITTEN
NOTICE OF THE NAME AND ADDRESS OF ARBITRATOR WITHIN FIVE (5) DAYS AFTER
WRITTEN DEMAND TO DO SO HAS BEEN SERVED ON THE PARTY MAKING THE APPOINTMENT BY
THE OTHER PARTY TO THIS LEASE.  THE TWO
APPOINTED ARBITRATORS, SHALL WITHIN TEN (10) DAYS AFTER THEIR 


 


23

















 


APPOINTMENT, APPOINT A THIRD
ARBITRATOR.  THE WRITTEN DECISION OF ANY
TWO OF THE THREE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE ON BOTH PARTIES TO
THIS LEASE.  THE ARBITRATORS MAY APPORTION
THE COSTS AND EXPENSES OF THE ARBITRATION PROCEEDING, INCLUDING ATTORNEY’S
FEES AND ARBITRATION FEES, BETWEEN THE PARTIES TO THIS AGREEMENT IN ANY MANNER
DEEMED REASONABLE BY TWO OF THE THREE ARBITRATORS.  THE ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION.


 


NOTICE:  BY INITIALING IN THE SPACE BELOW YOU ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION
OF DISPUTES” PROVISION ABOVE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MAY HAVE TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. 
BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION
OF DISPUTES” PROVISION.  IF YOU REFUSE TO
SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE.  YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.


 


WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION
TO NEUTRAL ARBITRATION.


 


	
  LESSOR’S
  INITIALS:

  	
  /s/

  	
   

  	
  LESSEE’S
  INITIALS:

  	
  /s/

  



 


Notices


 


Section 9.04.          All notices to be given to
Lessee shall be given in writing personally or by depositing the same in the
United States mail, postage prepaid, and addressed to Lessee at the Premises,
whether or not Lessee has departed from, abandoned or vacated the Premises.  All notices to be given to Lessor shall be
given in writing personally or by depositing the same in the United States
mail, postage prepaid, and addressed to the Lessor at 316 South Stratford
Avenue, Santa Maria, CA, 93454, or such other place or places as may be
designated from time to time by Lessor.


 


No Merger


 


Section 9.05.          The voluntary or other
surrender of this Lease by Lessee, or a mutual cancellation thereof, shall not
work a merger, and shall, at the option of Lessor, terminate any existing
subleases or subtenancies or may, at the option of Lessor, operate as an
assignment to it of any of such subleases or subtenancies.


 


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Binding on Heirs and Successors


 


Section 9.06.          This Lease shall be binding
on and shall inure to the benefit of the heirs, executors, administrators,
successors, and assigns of the parties hereto, Lessor and Lessee, but nothing
in this section contained shall be construed as a consent by Lessor to any
assignment of this Lease or any interest therein by Lessee except as provided
in Article 8 of this Lease.


 


Partial Invalidity


 


Section 9.07.          Should any provision of this
Lease be held by a court of competent jurisdiction to be either invalid, void,
or unenforceable, the remaining provisions of this Lease shall remain in full
force and effect unimpaired by the holding.


 


Sole and Only Agreement


 


Section 9.08.          This instrument constitutes
the sole and only agreement between Lessor and Lessee respecting the Premises,
the leasing of the Premises to Lessee, or the lease term herein specified, and
correctly sets for the obligations of Lessor and Lessee to each other as of its
date.  Any agreements or representations
respecting the Premises or their leasing by Lessor to Lessee not expressly set
forth in this instrument are null and void.


 


Waiver


 


Section 9.09.          The waiver by Lessor of any
term, covenant or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition on any subsequent breach of the same or any
other term, covenant or condition herein contained.  The subsequent acceptance of rent hereunder
by Lessor shall not be deemed to be a waiver of any preceding breach by Lessee
of any term, covenant or condition of this Lease other than the failure of the
Lessee to pay the particular rental so accepted, regardless of Lessor’s
knowledge of such preceding breach at the time of the acceptance of such rent.


 


Subordination and Non-Disturbance


 


Section 9.10.          (a)  This Lease is
subject and subordinate to all mortgages and deeds of trust which may hereafter
be placed and recorded on the property of which the Premises are a part and to
all renewals, modifications, replacements, and extensions thereof.


 


(b)           The subordination provided
for above is conditioned on and subject to the following:


 


(i)            For each mortgage or deed of
trust, Lessor shall obtain from the mortgagee or beneficiary a non-disturbance
agreement in writing that, in the event of foreclosure, or any sale thereunder,
this Lease shall not be terminated and Lessee’s right to possession under this
Lease shall not be disturbed, provided Lessee is not then in default under this
Lease;


 


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(ii)           In consideration of the
mortgagee’s or beneficiary’s agreement not to disturb Lessee’s possession as
above provided, Lessee hereby agrees to attorn to the purchaser at any
foreclosure, sale or other action or proceeding.


 


(iii)          The subordination described
in this section shall be effective without the necessity of having any further
instruments executed by Lessee, but Lessee agrees to execute on demand any such
further instruments evidencing subordination that Lessor or any mortgagee or
beneficiary may reasonably request.


 


Time of Essence


 


Section 9.11.          Time is expressly declared
to be the essence of this Lease.


 


Accord and Satisfaction


 


Section 9.12.          No payment by Lessee or
receipt by Lessor of a lesser amount than the monthly rent stipulated herein or
any other sum due hereunder from Lessee to Lessor shall be deemed to be
anything other than a payment on account of the earliest sum then due and owing
to Lessor.  No endorsement or statement
on any check of any letter accompanying any check or payment or payment of any
sum(s) due from Lessee to Lessor hereunder shall be deemed to be an accord
and satisfaction, and Lessor may accept and negotiate any such payment without
prejudice to Lessor’s right to recover the balance of such rent or other sum or
to pursue any other remedy provided for in this Lease or by law.


 


Right of First Refusal to Purchase Leased Premises


 


Section 9.13.          (a)  If at any time
during the term of this Lease Lessor receives from any third party a bona fide
offer to purchase the Premises at a price and on terms acceptable to Lessor,
Lessor shall give written notice of the offer to Lessee.  Within thirty (30) days after Lessor gives
Lessee written notice of the third-party offer, Lessee shall have the right to
purchase the Premises at the same price and on the same terms and conditions
set forth in the third-party offer.  To
exercise its right, Lessee must, within the same thirty (30) day period,
deposit in escrow with any title company in Ventura County, California, all
moneys and instruments required by the terms of the offer to be paid or
delivered to Lessor on close of escrow and shall also give Lessor written
notice of the deposit.  In the event
Lessee fails to exercise the option to purchase in accordance with the
provisions of this Section, Lessor may sell the Premises to the third party making
the offer on the same terms and conditions set forth in that offer.  If for any reason the Premises are not sold
to the party making the offer, Lessor shall give Lessee the same right to
purchase the Premises on receiving any subsequent offer from any third party
that is acceptable to Lessor.


 


(b)           Lessee may not assign the
rights granted under this section either separately or together with a transfer
of Lessee’s leasehold interest, and any purported assignment shall be null and
void.


 


(c)           If this property is sold to
any third party during the term of this Lease, then the provisions of this
section shall thereafter be of no further force or effect.


 


26

















 


Bankruptcy


 


Section 9.14.          Should a petition in
bankruptcy be filed by the Lessee, or should Lessee, during the term hereof,
become insolvent or make any assignment for the benefit of creditors, or be
adjudicated bankrupt or insolvent by any Court, or should a receiver or trustee
in bankruptcy be appointed over the business, property and assets of the
Lessee, and the Premises herein lease, or take charge of the Premises herein
demised, or should this lease, by operation of law, devolve upon or pass to any
person or persons other than the Lessee, then upon any of such events, the
Lessor may, at its option, re-enter and take possession of these Premises
herein leased and remove all persons therefrom and terminate the Lease.


 


Estoppel Certificate


 


Section 9.15.          Within ten (10) days
following any written request which Lessor may make from time to time, Lessee
shall execute, acknowledge and deliver to Lessor a statement certifying:  (a) the date of commencement of this
Lease; (b) the fact that this Lease is unmodified and in full force and
effect, or, if there have been modifications hereto, that this Lease is in full
force and effect, and stating the date and nature of such modifications; (c) the
date to which the Rent and other sums payable under this Lease have been paid; (d) that
there are no current defaults under this Lease by either Lessor or Lessee
except as specified in Lessee’s statement; and (e) any other information
Lessor may reasonably require.  Lessor
and Lessee intend that any statement delivered pursuant to this Section may
be relied upon by any encumbrancer, ground Lessee, beneficiary, purchaser or
prospective purchaser of the Property or any interest therein, as well as any
of their assigns.


 


Transfer Of Lessor’s Interest


 


Section 9.16.          Lessor has the right to
transfer all or part of its interest in the Building and Real Property and in this
Lease.  On such a transfer, Lessor shall
automatically be released from all liability accruing under this Lease, and
Lessee shall look solely to that transferee for the performance of Lessor’s
obligations under this Lease after the date of transfer.  Lessor may assign its interest in this Lease
to a mortgage lender as additional security. 
This assignment shall not release Lessor from its obligations under this
Lease, and Lessee shall continue to look to Lessor for the performance of its
obligations under this Lease.


 


Liability Of The Lessor


 


Section 9.17.          Except as otherwise provided
in this Lease or applicable law, for any breach of this Lease the liability of
Lessor (including all persons and entities that comprise Lessor, and any
successor Lessor) and any recourse by Lessee against Lessor shall be limited to
the interest of Lessor and Lessor’s successors in interest in and to the
Building and Real Property.  On behalf of
itself and all persons claiming by, through, or under Lessee, Lessee expressly
waives and releases Lessor from any personal liability for breach of this
Lease.


 


Executed
on the day and date first above written at Ventura, California.


 


27

















 


LESSEE:


 


COASTAL
RADIATION ONCOLOGY MEDICAL GROUP, INC.

a California Corporation


 


	
  by:

  	
  /s/ Thomas D. Fogel, M.D.

  	
   

  
	
   

  	
  THOMAS
  D. FOGEL, M.D., President

  	
   

  
	
   

  	
   

  	
   

  
	
  by:

  	
  /s/ Jonathan R. Stella, M.D.

  	
   

  
	
   

  	
  JONATHAN
  R. STELLA, M.D., Secretary

  	
   

  



 


LESSOR:


 


VENTURA
BUILDING PARTNERSHIP

a California general partnership


 


	
  by:

  	
  /s/ Thomas D. Fogel, M.D.

  	
   

  
	
   

  	
  THOMAS
  D. FOGEL, M.D., Managing Partner

  	
   

  



 


28

















 


EXHIBIT A


 


PARCEL
1:


 


AN
UNDIVIDED INTEREST IN AND TO LOTS 61 AND 62 HELENE PARK TRACT, IN THE CITY
OF SAN BUENAVENTURA, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 1.5, PAGE 48
OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.


 


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