Exhibit 10.12


 


PURCHASE AND SALE AGREEMENT


 


 


by
and between


 


 


21ST CENTURY ONCOLOGY, INC., a Florida corporation;
MARYLAND RADIATION


THERAPY MANAGEMENT SERVICES, INC., a Maryland
corporation; AMERICAN


CONSOLIDATED TECHNOLOGIES, L.L.C., a Michigan limited liability
company


(successor by conversion from American Consolidated
Technologies, a Michigan co-


partnership), and PHOENIX MANAGEMENT COMPANY, LLC, a Michigan
limited


liability company


 


(collectively
“Seller”)


 


 


and


 


 


NATIONWIDE HEALTH PROPERTIES, INC.,

a Maryland corporation


 


(“Buyer”)


 


 


September 30,
2008


 

















 


	
  1.

  	
  PURCHASE AND SALE

  	
   

  	
  1

  
	
  2.

  	
  PURCHASE PRICE

  	
   

  	
  1

  
	
   

  	
  2.1

  	
  Purchase Price

  	
   

  	
  1

  
	
   

  	
  2.2

  	
  Payment of Purchase Price

  	
   

  	
  1

  
	
  3.

  	
  CLOSING

  	
   

  	
  1

  
	
  4.

  	
  COSTS; PRO RATIONS

  	
   

  	
  1

  
	
  5.

  	
  CLOSING CONDITIONS

  	
   

  	
  1

  
	
   

  	
  5.1

  	
  Buyer Conditions

  	
   

  	
  2

  
	
   

  	
  5.2

  	
  Seller Conditions

  	
   

  	
  3

  
	
  6.

  	
  CLOSING DELIVERIES

  	
   

  	
  3

  
	
  7.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
  3

  
	
   

  	
  7.1

  	
  Seller

  	
   

  	
  3

  
	
   

  	
  7.2

  	
  Buyer

  	
   

  	
  5

  
	
  8.

  	
  INDEMNIFICATION

  	
   

  	
  6

  
	
  9.

  	
  NO PERSONAL LIABILITY OR
  THIRD PARTY BENEFICIARIES

  	
   

  	
  6

  
	
  10.

  	
  ATTORNEYS’ FEES

  	
   

  	
  6

  
	
  11.

  	
  REMEDIES CUMULATIVE

  	
   

  	
  6

  
	
  12.

  	
  WAIVERS

  	
   

  	
  7

  
	
  13.

  	
  NOTICES

  	
   

  	
  7

  
	
  14.

  	
  EXCHANGE COOPERATION

  	
   

  	
  7

  
	
  15.

  	
  MISCELLANEOUS

  	
   

  	
  8

  



 


	
  EXHIBIT A

  	
  THE PROPERTY

  
	
   

  	
  Schedule 1

  	
  Legal Description of Land

  
	
   

  	
  Schedule 2

  	
  Excluded Personal Property

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
  CLOSING DELIVERIES AND
  ALLOCATION OF COSTS

  
	
   

  	
  Schedule 1

  	
  Bill of Sale and
  Assignment

  
	
   

  	
  Schedule 2

  	
  Certificate of Non-Foreign
  Status

  
	
   

  	
  Schedule 3

  	
  Closing Certificate

  
	
   

  	
   

  
	
  EXHIBIT C

  	
  CERTAIN DEFINITIONS

  
	
   

  	
   

  
	
  EXHIBIT D

  	
  MASTER LEASE

  



 


i

















 


PURCHASE AND SALE AGREEMENT


 


This Purchase and Sale
Agreement (this, “Agreement”)  is entered into as of September 30,
2008, between 21ST CENTURY ONCOLOGY, INC.,
a Florida corporation; MARYLAND
RADIATION THERAPY MANAGEMENT SERVICES, INC., a Maryland
corporation; AMERICAN CONSOLIDATED TECHNOLOGIES,
L.L.C., a Michigan limited liability company (successor by
conversion from American Consolidated Technologies, a Michigan co-partnership),
and PHOENIX MANAGEMENT COMPANY, LLC, a
Michigan limited liability company (collectively, “Seller”),  and NATIONWIDE HEALTH PROPERTIES, INC., a
Maryland corporation (“Buyer”).  In consideration of the mutual covenants,
agreements and conditions set forth herein and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller agree as follows:


 


1. PURCHASE AND SALE.


 


Seller agrees to sell,
convey and assign each of the properties (each, a “Property” and collectively, the “Properties”)  described
on Exhibit A to Buyer, and Buyer agrees to buy and accept the Properties
from Seller, all in accordance with the terms and conditions of this Agreement.


 


2. PURCHASE PRICE.


 


2.1 Purchase Price. The purchase price to be
paid by Buyer at the Closing (as defined in Section 3) for the
Properties (the “Purchase Price”)  shall be Forty-Two Million Five Hundred
Thousand Dollars ($42,500,000).


 


2.2 Payment of Purchase Price. On the Closing
Date, Buyer shall deposit with First American Title Insurance Company, National
Commercial Services, 111 N Orange Avenue, Suite 1285, Orlando, Florida
32801, Attention: Keren Baki (“Title Company”)
by wire transfer of immediately available United States Federal funds the
amount of the Purchase Price as well as all sums necessary to pay Buyer’s costs
and prorations pursuant to Section 4.


 


3. CLOSING. The “Closing” of the transactions contemplated
by this Agreement shall take place by exchange of documents via overnight
courier, facsimile or other electronic means on or before September 30,
2008 or such later date as the parties may agree in writing (the “Closing Date”).


 


4. COSTS; PRO RATIONS. By the Closing Date the
parties shall pay the costs specified in Section III of Exhibit B.
Since “Tenant” will be responsible
for the Property’s income and expenses under the “Lease” (as such terms are defined on Exhibit B),
they shall not be pro rated.


 


5. CLOSING CONDITIONS. Unless waived in writing by
the party whose obligations are so conditioned, the parties’ respective
obligations under this Agreement are subject to the following conditions:


 


1

















 


5.1 Buyer Conditions. For Buyer:


 


(a) Title Policy. By the Closing Date, (i) Seller shall have delivered to Title Company the
items set forth in Section IA of Exhibit B, and (ii) Buyer shall have received with respect to each
Property (A) a pro forma of an ALTA
Extended Coverage Owner’s Policy of Title Insurance (1970 Form B), dated
as of the Closing Date and with such endorsements as are reasonably requested
by Buyer, with aggregate liability in the amount of the Purchase Price and
insuring title to the fee interest in the Real Property in Buyer, subject only
to those exceptions reasonably approved by Buyer (individually, the “Title Policy” and collectively, the “Title Policies”),  and (B) an
unconditional, irrevocable commitment from Title Company to issue each of the
Title Policies in conformity with the applicable pro forma.


 


(b) No Damage or Taking. Prior to the Closing, there
shall not have occurred (i) any destruction of or damage or loss with
respect to the any of the Properties which Buyer reasonably estimates would in
the aggregate cost more than $250,000 or take longer than sixty (60) days to
repair, restore and replace (but if the Closing occurs anyway, Seller shall
promptly repair such destruction, damage or loss at its sole cost and expense),
or (ii) any actual or threatened taking by eminent domain of any of the
Properties (or consideration thereof by a governmental authority) that would
materially and adversely affect the value or use of such Property.


 


(c) Lease. By the Closing Date, Seller
shall have entered into the Lease.


 


(d) Naples Property. With respect to that certain
Property located in Naples, Florida and pursuant to that certain Lease dated October 25,
2000 between Seller as lessee and North Naples Extension, a Florida general
partnership as lessor (“North Naples”)  (or its appropriate successor or assign)
pertaining to the radiation vault portion of such Property, Seller shall have
exercised its option to purchase the portion of the Property consisting of the
radiation vault from North Naples and, at Closing, Seller shall have the right
to transfer and convey to Buyer a fee simple interest in and to the entirety of
the Property located in Naples, Florida including said radiation vault.


 


(e) Other Conditions. (i) Seller has
performed in all material respects its obligations hereunder (including
delivery of the items from Seller specified in Sections I and II
of Exhibit B); (ii) Seller’s representations and warranties
contained herein shall be true and correct in all material respects on the date
hereof and on the Closing Date; and (iii) none of the following shall have
been done by or with respect to Seller, Tenant, or any Guarantor (as such term
is defined on Exhibit B) or any Affiliate of any of them: (A) a dissolution or liquidation; or (B) since the date of the delivery to Buyer of the
financial information concerning Seller, Tenant, and Guarantor, the occurrence
of any event, condition, or situation that has or could reasonably be expected
to materially and adversely affect the ability of Seller, Tenant, or Guarantor
to fulfill its obligations under this Agreement, the Lease, or the Guaranty,
including, without limitation, the occurrence of a monetary event of default
under any third party financings.


 


2

















 


5.2 Seller Conditions. For Seller:


 


(a) Lease. By the Closing Date, Buyer
shall have entered into the Lease.


 


(b) Other Conditions. (i) Buyer has
performed in all material respects its obligations hereunder (including
delivery of the items from Buyer specified in Sections I and II
of Exhibit B); (ii) Buyer’s
representations and warranties contained herein shall be true and correct in
all material respects on the date hereof and on the Closing Date; and (iii) none of the following shall have
been done by, against or with respect to Buyer or any Affiliate of Buyer: (A) the commencement of a case under
Title 11 of the U.S. Code (as now constituted or hereafter amended) or under
any other applicable bankruptcy or other similar law; (B) the appointment of a trustee or
receiver of any property interest; (C) an
assignment for the benefit of creditors; (D) an
attachment, execution or other judicial seizure of a substantial property
interest; (E) the taking of,
failure to take or submission to any action indicating an inability to meet its
financial obligations as they accrue; or (F) a
dissolution or liquidation.


 


5.3 Failure of Closing Condition. The failure of
any of the conditions set forth in this Section 5 shall not
constitute a default by Seller or Buyer for purposes of this Agreement. In
addition, if a condition set forth in this Section 5 is not
satisfied for any reason, such failure of the condition shall not constitute a
default by Seller or Buyer for purposes of this Agreement and the
non-defaulting party’s sole remedy for such failure of the condition shall be
to elect (i) to waive said condition and proceed with the Closing or (ii) to
terminate this Agreement.


 


6. CLOSING DELIVERIES. At the Closing, the items
set forth in Section II of Exhibit B shall have been
delivered following (a) satisfaction of all
conditions for recordation of the instruments described in Section I
of Exhibit B and (b) confirming
advice from Title Company thereof and that it is prepared to record or file (as
applicable) the documents described in Sections I.A.1 through 3 of Exhibit B,
disburse funds and issue its unconditional, irrevocable commitment to issue the
Title Policies.


 


7. REPRESENTATIONS AND WARRANTIES.


 


7.1 Seller. To induce Buyer to enter
into this Agreement and the Lease, Seller represents and warrants to Buyer as
of the date hereof as follows, which representations and warranties shall
survive the Closing for a period of one (1) year (the “Survival Termination Date”);  provided, however, that if Buyer notifies
Seller, on or before the sixtieth (60th) day following the Survival Termination
Date, of any alleged breach of said representation or warranty occurring prior
to the Survival Termination Date (a “Notice
of Breach”),  and Buyer
thereafter files a lawsuit in connection therewith against Seller within ninety
(90) days following the furnishing of said Notice of Breach, then the
applicable Survival Termination Date shall be extended with respect to said
representation and warranty until the date on which a final judgment is
obtained in said lawsuit, beyond any possibility of appeal. Any references to “Seller’s
Knowledge” set forth below shall mean the actual present knowledge of David N.
T. Watson or Daniel Dosoretz without independent investigation:


 


3

















 


(a) Title;
Brokers, Advisors. Seller has good, marketable and insurable title to,
and the entire right, title, and interest in, each of the Properties. Except
for Patriot Capital Advisors, LLC (“Patriot”),
Seller has not engaged any broker, finder or advisor in connection
with any of the transactions contemplated by this Agreement. All fees and
expenses and other obligations payable to Patriot in connection with or as a result
of Patriot’s engagement by Seller with respect to the transactions contemplated
by this Agreement will be paid by Seller.


 


(b) Utilities;
Physical Condition; Completeness. Each of the Properties has
available to its boundaries adequate utilities (including water supply, storm
and sanitary sewage facilities, telephone, gas, electricity and fire
protection) required to operate it for the existing usage. To Seller’s
Knowledge, each of the Properties has been constructed in a good, workmanlike
and substantial manner, free from material defects and in accordance with all
applicable laws, moratoria, initiatives, referenda, ordinances, rules,
regulations, standards, orders and other governmental requirements, where the
failure to abide thereby would have a material adverse effect on the Property
or either party (collectively, “Laws”).
To Seller’s Knowledge, each of the Properties and its operation and use comply
with all applicable CC&R’s and other applicable use or maintenance
requirements. To Seller’s Knowledge, neither the zoning nor any other right to
construct upon or to use any Property is to any extent dependent upon or
related to any other real estate or the improvement thereof or payment of any
fees therefor. To Seller’s Knowledge, there are no soil conditions adversely
affecting any Property in any material respect. Except as set forth in the
Phase I Reports, there are and have been no Environmental Activities conducted
from or at any of the Properties in violation, in any material respect, of any
Laws, nor have there been any Hazardous Materials installed or stored in or
otherwise existing at, on, in or under any Property which are or have been at
any time in violation in any material respect of any Laws or in amounts or
concentrations which could reasonably be expected to result in material
liability under any Laws (as such terms are defined on Exhibit C).
All of the Properties are, and prior to the Closing Seller shall use its best
efforts to maintain each of them, in good condition and repair and free from
material defects, except for ordinary wear and tear.


 


(c) Compliance.
Neither Seller nor, to Seller’s Knowledge, any other party is in
default with respect to any of their material obligations or liabilities
pertaining to the Properties where the failure to abide thereby would have a
material adverse effect on the Properties (or the business conducted thereon)
or either party. Seller has obtained all consents, approvals, licenses, Permits
and other permissions required to consummate the transactions contemplated
herein and to use and operate each Property for its current and intended use
where the failure to obtain would have a material adverse effect on the
Properties (including the business conducted thereon) or the transactions
contemplated herein (i) from
any limited or general partner, shareholder, member or other person with any
interest in Seller, (ii) under
the Lease or any certificate of need, mortgage, easement, covenant,
restriction, management, loan or other agreement, or other instrument affecting
any Property and which is presently in effect or binding upon Seller or any
Property, and (iii) under all
applicable Laws. Either a certificate of need or similar certificate required
to operate the Property for its intended use is in full force and effect or no
such certificate is so required. To Seller’s Knowledge (x) the
transactions contemplated herein will in no way jeopardize or threaten the
validity of any such certificate, (y) no
government agency or representative thereof has commenced or is contemplating
an investigation of whether, or considers that, the operation or use of any
Property for its current


 


4

















 


and intended use has failed
or will fail to comply with any Law, and (z) there
are no unsatisfied requests from any tenant, lender, insurance carrier,
government authority or other person for repairs, restorations or alterations
with regard to any Property. To Seller’s Knowledge, the Warranties are in full
force and effect with no defaults and have not been assigned by Seller.


 


(d) Authority. This Agreement and all
related agreements, instruments and other documents (collectively, the “Transaction Documents”) to be executed by
Seller in connection with the transaction contemplated herein are, and on the
Closing Date will be, duly authorized, executed and delivered by, and binding
in accordance with their respective terms upon, Seller. No Transaction Document
or transaction contemplated thereby breaches, invalidates, cancels, makes
inoperative, or results in the acceleration or maturity of, any agreement,
document, instrument, right or interest affecting or relating to Seller or any
Property. Each of the entities comprising Seller is a valid entity duly
organized, validly existing and in good standing under the laws of the state of
its formation, is duly qualified to do business in the state(s) where such
entity owns a Property, and has the power and authority to enter into the
Transaction Documents and to consummate the transactions contemplated thereby.


 


(e) Litigation; Condemnation. There are no (i) material actions, suits or
proceedings pending or, to Seller’s Knowledge, threatened before or by any
governmental authority or other person, against or affecting Seller or any
Property or (ii) existing,
proposed or, to Seller’s Knowledge, threatened eminent domain or similar
proceedings which, in either case, would affect or question Seller’s title to,
or use of any Land or Improvements or any portion thereof.


 


(f) Licensing. Each Property is in compliance
in all material respects with all licensing and other laws applicable to the
current use and operation of the Properties. Each Property is in full
compliance with all Medicare, Medicaid and other third-party payor
certification requirements and Seller is not aware, with respect to the
operation of the Properties, of any failure on behalf of Seller or any of its
Affiliates to comply with the applicable provisions of the Medicare
Anti-Kickback Law, 42 U.S.C. 1320a-7(b), and the Stark Self-Referral Prohibition
Act, 42 U.S.C. 1385nn et. seq.


 


(g) Accuracy of Information. To Seller’s Knowledge, all
documents and other data or information prepared by Seller and provided to
Buyer in connection herewith, are true, correct and complete in all material
respects.


 


7.2 Buyer. Buyer represents and
warrants to Seller that: (a) The
Transaction Documents to be executed by Buyer are, and on the Closing Date will
be, duly authorized, executed and delivered by, and binding in accordance with
their respective terms on Buyer. No Transaction Document or transaction
contemplated thereby breaches, invalidates, cancels, makes inoperative or
interferes with, or results in the acceleration or maturity of, any agreement,
document, instrument, right or interest affecting or relating to Buyer; (b) Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland and duly qualified to do business in the state(s) where each
Property is located, and has the power and authority to enter into the
Transaction Documents and to consummate the transactions contemplated thereby
and nothing prohibits or restricts the right or ability of Buyer to close such


 


5

















 


transactions and carry out
the terms thereof. Buyer has not engaged any broker or finder in connection
with any of the transactions contemplated by this Agreement.


 


8. INDEMNIFICATION. Each party (the “Indemnifying Party”)  shall hold harmless, indemnify and defend
the other party and its officers, directors, employees, advisors, accountants,
attorneys, partners, shareholders and any other person having a direct or
indirect ownership interest in it (each an “Indemnified
Party”) from and against any obligation, liability, lien,
encumbrance, loss, damage, “Cost” or
“Expense”
(which include reasonable attorneys’ fees and costs (including expert fees)),
related to any actions, suits or judgments incident to any of the matters
covered hereby) or claim (including any claim for damage to property or injury
to or death of any person) (collectively, “Claims”) that (a) results from any breach or default
by the Indemnifying Party of any of its representations, warranties, or
covenants contained in this Agreement or any other Transaction Document or (b) with respect to the Properties,
arises out of the grossly negligent or intentional act or omission of
Indemnifying Party to the extent it so arises. The Indemnified Party shall
notify the Indemnifying Party of any Claim against the Indemnified Party within
one hundred eighty (180) days after
it has notice of such Claim, but failure to give such notice shall in no case
prejudice its rights under this Agreement unless the Indemnifying Party shall
be prejudiced by such failure and then only to the extent it is so prejudiced.
If the Indemnifying Party fails to discharge or undertake to defend the
Indemnified Party against such Claim, then the Indemnified Party may settle it
and the liability of the Indemnifying Party hereunder shall be conclusively
established by such settlement (including any settlement consideration and the
reasonable Costs and Expenses incurred by the Indemnified Party).
Notwithstanding anything else to the contrary in this Agreement, the rights of
an Indemnified Party to enforce the indemnification obligations contained in
this Section 8 with respect to any representation or warranty of an
Indemnifying Party contained in this Agreement shall be in accordance with the
provisions regarding the extension of the Survival Termination Date contained
in Section 7.1.


 


9. NO PERSONAL LIABILITY OR THIRD PARTY BENEFICIARIES. In addition to
any limitation on liability provided by Law or any other agreement or
instrument, no advisor, trustee, director, officer, employee, accountant,
attorney, beneficiary, shareholder, partner, participant or agent of or in
Buyer or Seller shall have any personal liability, directly or indirectly,
under or in connection with any Transaction Document or amendment thereof. The
parties, their respective successors and assigns and all third parties shall
look solely to the applicable party’s or Buyer’s assets for the payment of any
claim or any performance, and the parties hereby waive all such personal
liability. This Agreement is made and entered into solely for the protection
and benefit of the parties and their successors and permitted assigns. No other
person shall have any right of action hereunder.


 


10. ATTORNEYS’ FEES. If any legal action or
proceeding (or appeal thereof) is commenced to interpret, enforce or recover
damages for the breach of any term of or obligation arising out of this
Agreement, the non-prevailing party shall reimburse the prevailing party for
all of its related reasonable Costs and Expenses.


 


11. REMEDIES CUMULATIVE. No remedy
provided in this Agreement is intended to be exclusive of, and instead shall be
in addition to and cumulative with, any other remedy now or hereafter provided
or permitted by Law, in equity or otherwise. It is expressly


 


6

















 


understood that nothing
herein shall be construed to relieve Seller of any liability that it may have
to Buyer under any Law relating to Hazardous Materials, including any claims
arising out of any Environmental Activities described in the Phase I Reports.


 


12. WAIVERS.
No waiver of any breach of this Agreement shall be deemed to be a
waiver of any other breach, and no acceptance of payment or performance after
any breach shall be deemed to be a waiver of such or any other breach or of any
representation or warranty hereunder, whether or not such breach is then known.
No failure or delay to exercise any right a party may have by reason of any
default hereof shall operate as a waiver of such default or as a modification
of this Agreement or prevent its exercise of any right while the default
continues. If for any reason any item required to be delivered hereunder shall
not be timely delivered and the party entitled thereto delivers a written
request therefor within six (6) months following
the Closing Date, then the other party shall remain obligated to promptly make
such delivery. Except as otherwise expressly provided herein, any waiver,
approval or consent of a party may be given or withheld in its absolute
discretion


 


13. NOTICES. All notices
and demands, certificates, requests, consents, approvals and other similar
instruments under this Agreement shall be in writing and sent by personal
delivery, U.S. certified or registered mail (return receipt requested, postage
prepaid) or FedEx or similar generally recognized overnight carrier regularly
providing proof of delivery, addressed as follows:


 


	
  If to
  Seller:

  	
  If to
  Buyer:

  
	
   

  	
   

  
	
  c/o Radiation Therapy
  Services, Inc.

  	
  Nationwide Health
  Properties, Inc.

  
	
  2234 Colonial Boulevard

  	
  610 Newport Center Drive,
  Suite 1150

  
	
  Fort Myers, Florida 33907

  	
  Newport Beach, California
  92660

  
	
  Attn: David Watson

  	
  Attn: President and
  General Counsel

  
	
  Facsimile: (239) 931-7380

  	
  Facsimile: (949) 759-6887

  
	
   

  	
   

  
	
  With a
  copy to:

  	
  With a
  copy to:

  
	
   

  	
   

  
	
  Kirkland & Ellis
  LLP

  	
  Sherry Meyerhoff
  Hanson & Crance LLP

  
	
  200 East Randolph Drive

  	
  610 Newport Center Drive,
  Suite 1200

  
	
  Chicago, Illinois
  60601

  	
  Newport Beach, California
  92660

  
	
  Attn: John G.
  Caruso, Esq.

  	
  Attn: Frank
  Crance, Esq.

  
	
  Facsimile: (312) 861-2200

  	
  Facsimile: (949) 719-1212

  



 


A party may designate a
different address by notice as provided above. Any notice or other instrument
so delivered (whether accepted or refused) shall be deemed to have been given
and received on the date of delivery established by U.S. Post Office return
receipt or the carrier’s proof of delivery or, if not so delivered, upon its
receipt. Delivery to any officer, general partner or principal of a party shall
be deemed delivery to such party.


 


14. EXCHANGE COOPERATION. Either party
may wish to use all or part of the Property as a part of a like-kind exchange
of property with an accommodator or other third party. In connection therewith,
each party shall have the right to assign its interest in this Agreement, or


 


7

















 


to cause title to the
Property to be taken by, the accommodator or other third party participating in
such exchange. If either party assigns its interest in this Agreement to
effectuate an exchange, such party shall promptly notify the other party and
such party shall, at no additional out-of-pocket expense to itself, reasonably
cooperate with the exchanging party to effectuate such exchange. The exchanging
party hereby indemnifies and agrees to hold the other party harmless from and
against any additional claims and liabilities arising as a result of the other
party participating in any such exchange.


 


15. MISCELLANEOUS. Since each
party has been represented by counsel and this Agreement has been freely and
fairly negotiated, all provisions shall be interpreted according to their fair
meaning and shall not be strictly construed against any party. Each party will,
whenever and as often as it shall be reasonably requested by the other, cause
to be executed, acknowledged or delivered such further instruments and
documents as may be required to carry out the intent and purpose of this
Agreement. Time is of the essence and whenever action must be taken (including
the giving of notice or the delivery of documents) hereunder during a certain
period of time or by a particular date that ends or occurs on a Saturday,
Sunday or federal holiday, then such period or date shall be extended until the
immediately following business day. Whenever the words “including,” “include”
or “includes” are used in this Agreement, they should be interpreted in a non-exclusive
manner as though the words “without limitation,” immediately followed. Whenever
the words “affiliate,” “business day,” “control” or “person” are used in this
Agreement, they shall have the meanings given to them in Exhibit C.
The titles and headings in this Agreement are for convenience of reference only
and shall not in any way affect the meaning or construction of any provision.
Unless otherwise expressly provided, references to any “Section” mean a section
of this Agreement (including all subsections) or to any “Exhibit” or “Schedule”
mean an exhibit or schedule attached hereto. This Agreement (which includes any
Exhibits and schedules attached hereto) (a) contains
the entire agreement of the parties as to the subject matter hereof and
supersedes all prior or contemporaneous verbal or written agreements or
understandings, (b) may be
executed in several facsimile or other electronic counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
document, (c) may only be
amended by a writing executed by the parties, (d) may
not be assigned or otherwise transferred by a party without the prior written
consent of the other party, in which event the transferee shall assume in
writing (but the transferor shall not thereby be released from) all of the
transferor’s obligations hereunder (any assignment or transfer without such
consent shall be invalid and unenforceable and no such consent shall be
construed as a consent to any other assignment or transfer), (e) subject to the limitations on
assignment contained in subclause (d) above,
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties and (f) shall
be governed by and construed and enforced in accordance with the internal laws
of the State of California, without regard to the conflict of laws rules thereof.
Notwithstanding anything herein which may be construed to the contrary, Buyer
may nominate any entity at Closing in whom title to the Property is to vest. If
more than one Person is Seller hereunder, their liability and obligations
hereunder shall be joint and several.


 


[Signatures on Following Page]


 


8














 


	
   

  	
   

  	
  Signed, Sealed and Delivered 

  
	
  “BUYER”

  	
   

  	
  in the presence of:

  
	
   

  	
   

  	
   

  
	
  NATIONWIDE
  HEALTH PROPERTIES, 

  	
   

  	
  /s/ Signatory

  
	
  INC.,

  	
   

  	
  Witness Signature

  
	
  a Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
  Signatory

  
	
   

  	
   

  	
  Print Witness Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Abdo H. Khoury

  	
   

  	
  /s/ Signatory

  
	
  Name:

  	
  Abdo H. Khoury

  	
   

  	
  Witness Signature

  
	
  Title:

  	
  Chief Financial &
  Portfolio Officer

  	
   

  	
   

  
	
   

  	
  Executive Vice President

  	
   

  	
  Signatory

  
	
   

  	
   

  	
   

  	
  Print Witness Name

  



 


 


	
  “SELLER”

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  21st
  CENTURY ONCOLOGY, INC.,

  	
   

  	
  Signed, Sealed and Delivered

  
	
  a Florida corporation

  	
   

  	
  in the presence of:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Signatory

  
	
  By:

  	
  /s/ David N.T. Watson

  	
   

  	
  Witness Signature

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
  Signatory

  
	
   

  	
   

  	
   

  	
  Print Witness Name

  
	
   

  	
   

  	
   

  	
   

  
	
  MARYLAND RADIATION THERAPY

  	
   

  	
  /s/ Christina Rivera

  
	
  MANAGEMENT SERVICES, INC.,

  	
   

  	
  Witness Signature

  
	
  a
  Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Christina Rivera

  
	
   

  	
   

  	
   

  	
  Print Witness Name

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David N.T. Watson

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  PHOENIX
  MANAGEMENT

  	
   

  	
   

  
	
  COMPANY,
  LLC, a Michigan limited

  	
   

  	
   

  
	
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David N.T. Watson

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AMERICAN
  CONSOLIDATED

  	
   

  	
   

  
	
  TECHNOLOGIES,
  L.L.C.,

  	
   

  	
   

  
	
  a Michigan limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David N.T. Watson

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  	
   

  



 


S-1

















 


THE TITLE
COMPANY IS MADE A PARTY HERETO SOLELY AS TO ITS OBLIGATIONS TO CONSUMMATE THE
CLOSING PURSUANT TO THE TERMS SET FORTH HEREIN:


 


“TITLE
COMPANY”


 


 


FIRST
AMERICAN TITLE INSURANCE COMPANY


 


	
  By:

  	
  /s/ Authorized Signatory

  	
   

  	
   

  
	
  Name:

  	
  Authorized Signatory

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


S-2

















 


EXHIBIT A


 


THE PROPERTY


 


The  “Properties”
are comprised of all the following property now or on the Closing
Date:


 


(a)                     The following “Real Properties”: (i) each “Land” more particularly described on Schedule 1
attached hereto; (ii) the “Improvements”, which mean all property
which is attached or appurtenant thereto (“Fixtures”)  and all buildings, improvements and
structures, including parking lots and structures, roads, drainage and other
utility structures and other so-called “infrastructure” improvements; and (iii) all rights, titles and interests
which pass by operation of law with the conveyance of the fee simple estate in
such Land and Improvements; and


 


(b)                     The following “Personal Property”, excluding, however,
the personal property described on Schedule 2 attached hereto: the “Intangible Property”, which means (i) to the extent legally transferable
by Seller, all permits, licenses, approvals, entitlements and other
governmental and utility service provider and other quasi-governmental
authorizations, including any certificates of occupancy, that Seller now holds
in connection with the ownership, planning, development, construction, use,
operation or maintenance of any Property for the purposes described in the
Lease, and all amendments, modifications, supplements, general conditions and
addenda thereto (“Permits”), (ii) to the extent legally
transferable by Seller, all expressed or implied material warranties,
representations and guaranties with respect to any Property that Seller now
holds or is the beneficiary (“Warranties”), (iii) Seller’s rights in and to all
drawings, plans, specifications, blueprints, studies, structural reviews, and
engineering, soil, seismic, geologic, architectural and other reports relating
solely to any Property and all amendments, modifications, supplements, general
conditions and addenda thereto (“Plans and
Specifications”), (iv) Seller’s
legal and equitable claims, causes of action and rights against the architects,
engineers, designers, contractors, subcontractors, suppliers and materialmen
and any other party who has supplied labor, services, materials or equipment,
directly or indirectly, in connection with the design, planning, marketing,
construction, manufacturing or operation of any of the Properties; (v) any contracts of sale affecting
any of the Properties and all deposits in connection therewith, (vi) Seller’s rights in or under the
casualty and liability insurance policies covering any of the Properties, and (vii) all of Seller’s rights in any,
water rights and reservations, and zoning rights related to any of the Real
Properties.


 


Exhibit A-1

















 


Schedule 1 to Exhibit A


 


Legal Description of each Land


 


[See Attached]


 


Schedule 1 to Exhibit A


 














 


Legal Description


 


(Fort Myers)


 


Real property in the County
of Lee, State of Florida, described as follows:


 


A tract or parcel of land
lying in the Southwest 1/4 of the Southeast 1/4 of Section 26, and the
Northwest 1/4 of the Northeast 1/4 of Section 35, Township 45 South, Range
24 East, Lee County, Florida, which tract or parcel is described as follows:


 


Commencing at the East
quarter, quarter section corner on the line dividing said Sections 26 and 35,
run Westerly along said section line for 75 feet to a concrete monument on the
Westerly line of the right-of-way of Canal “I” of the former Iona Drainage
District and the point of beginning of the lands herein described. From said
point of beginning, run Southwesterly along the Westerly side of said right-of-way,
for 327 feet; thence run Northwesterly perpendicular to said right-of-way line,
for 406.35 feet to the point on the Southeasterly right-of-way line of a County
Road sometimes known as the Iona Cutoff Road or Gladiolus Drive; thence run
Northeasterly to Easterly along the arc of a curve to the right of radius
666.78 feet and along said Southeasterly right-of-way line, for 555.11 feet to
a point of tangency on the line 40 feet North of and parallel with said section
line between Sections 26 and 35; thence run East along said parallel line for
10.78 feet to a concrete monument on the Westerly right-of-way line of said
Canal “I”; thence run Southeasterly along said right-of-way line for 42.27 feet
to the point of beginning.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Cape Coral)


 


Real property in the County
of Lee, State of Florida, described as follows:


 


Lots 18, 19, 20, 21, 22, 23,
24, 25 and 26, Block 799, Cape Coral Unit 22, according to plat thereof
recorded in Plat Book 14, Pages 1 to 16 incl., Public Records of Lee
County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Naples)


 


Real property in the County
of Collier, State of Florida, described as follows:


 


All of Tract B3, as shown on
the Plat of Southwest Professional Health Park, according to the plat thereof
as recorded in Plat Book 28, Pages 53 and 54, of the public records
of Collier County, Florida.


 


Together with non-exclusive
appurtenant easements as created by that certain Declaration of Restrictions of
Southwest Professional Health Park recorded in Official Records Book 2327, Page 2959;
as amended in Official Records Book 3145, Page 2725, of the Public
Records of Collier County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Port Charlotte)


 


Real property in the County
of Charlotte, State of Florida, described as follows:


 


Lots 1 and 2, Block 4, Port
Charlotte Plaza Section Six, according to plat thereof recorded in Plat
Book 15, Page 50, Public Records of Charlotte County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Arcadia)


 


Real property in the County
of DeSoto, State of Florida, described as follows:


 


PARCEL 1:


 


All of Lots 14 and 16, Block
“G”, Gilchrist’s and Baldwin’s Subdivision of Arcadia, a subdivision according
to the map or plat thereof recorded in Plat Book 1, Page 66, of the Public
Records of DeSoto County, Florida.


 


PARCEL 2:


 


The South 1/2 of Lot 7 and
all of Lots 9, 11, 13, 15 and 17, Block “G”, Gilchrist’s and Baldwin’s
Subdivision of Arcadia, a subdivision according to the map or plat thereof
recorded in Plat Book 1, Page 66, of the Public Records of DeSoto County,
Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Sarasota)


 


Real property in the County
of Sarasota, State of Florida, described as follows:


 


Commence at the Northwest
corner of the Southeast 1/4 of Section 21, Township 36 South, Range 18
East, Sarasota County, Florida; thence South 00° 15’39” West, along the West
line of said Southeast 1/4, 40.00 feet to the South right-of-way line of
Fruitville Road (State Road No. 780) for the Point of Beginning; thence
continue South 00° 15’39” West, along said West line of the Southeast 1/4,
391.00 feet to the Southwest corner of those certain lands as described in
Official Records Book 1679, Page 352, of the public records of Sarasota
County, Florida; thence South 89° 42’41” East, parallel with the North line of
said Southeast 1/4, and also along the South line of said lands, 205.00 feet to
the Southeast corner of said lands; thence North 00° 15’39” East, parallel with
the West line of said Southeast 1/4, and also along the East line of said lands
described in Official Records Book 1679, Page 352, and the East line of
the lands of, or formerly of Silva, and also along the East line of those
certain lands described in Official Records Book 1554, Page 834, of the
public records of Sarasota County, Florida, 388.69 feet to the South
right-of-way of said Fruitville Road, said point being the Southeast corner of
lands described in Order of Taking per Official Records Book 1933, Page 2371
(Parcel 122); thence Westerly, along said right-of-way and also along the arc
of a curve, concave to the South, and having a radius of 3760.72 feet, a
distance of 50.05 feet to the West line of lands described in Official Records
Book 1554, Page 834; thence North 00° 13’13” East, along said West line,
0.92 feet; thence North 89° 42’41” West, along a line that is 40 feet South of,
and parallel with the North line of said Southeast 1/4,155.00 feet to the Point
of Beginning.


 


Together with that certain
easement for ingress and egress as created in that certain Easement recorded in
Official Records Book 2155, Page 1520, Public Records of Sarasota County,
Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Englewood)


 


Real property in the County
of Sarasota, State of Florida, described as follows:


 


Lots 2 and 3, Englewood
Medical Center, according to plat thereof recorded in Plat Book 35, Pages 20
through 20-C, of the Public Records of Sarasota County, Florida, being in Section 32,
Township 40 South, Range 20 East.


 


Together with non-exclusive
appurtenant easements as created by that certain Declaration for Englewood
Medical Center Association, Inc. recorded in Official Records Book 2313, Page 2264,
as amended in Official Records Book 2463, Page 2175, and Official Records
Instrument Number 200414288, Public Records of Sarasota County, Florida.


 


AND


 


Together with that certain
easement for use of the existing stormwater retention and treatment facilities
as granted in that certain Stormwater Retention Easement Agreement recorded in
Official Records Instrument Number 2007072409, Public Records of Sarasota
County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Venice)


 


Real property in the County
of Sarasota, State of Florida, described as follows:


 


Lots 11 and 12, Venice
Avenue Commercial Subdivision, according to the plat thereof recorded in Plat Book
33, Pages 21 through 21D, of the Public Records of Sarasota County,
Florida.


 


Together with non-exclusive
appurtenant easements as created by that certain Declaration of Covenants and
Restrictions of Venice Avenue Commercial Subdivision recorded in Official
Records Book 2211, Page 2443, as amended in Official Records Book 2258, Page 1480,
Public Records of Sarasota County, Florida.


 


AND


 


Together with that certain
easement for ingress and egress and driveway purposes as created in that
certain Cross Easement recorded in Official Records Instrument Number
1998154256, Public Records of Sarasota County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Key West)


 


Real property in the County
of Monroe, State of Florida, described as follows:


 


A part of Tract 5 as shown
on “Plat of Survey of Lands on the Island of Key West, Monroe County, Florida”
recorded in Plat Book 3, Page 35 of the public records of Monroe County,
Florida, and described as follows:


 


Commencing at the Northeast
corner of said Tract 5; thence South 84 degrees 14’ 40” West 30 feet along the
Southerly right-of-way line of North Roosevelt Boulevard to the Point of
Beginning; thence South 05 degrees 45’ 20” East for a distance of 150.00 feet
to a point; thence South 84 degrees 14’ 40” West 70.00 feet to a point; thence
North 05 degrees 45’ 20” West for a distance of 150.00 feet to the North
boundary of said Tract 5; thence North 84 degrees 14’ 40” East along the North
boundary line of said Tract 5 for a distance of 70.00 feet to the Point of
Beginning.


 


Together with that certain
non-exclusive perpetual easement for vehicular and pedestrian ingress and
egress as created in that certain Easement Agreement recorded in Official
Records Book 2053, Page 1646, Public Records of Monroe County, Florida.


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Berlin, MD)


 


All of those lots or parcels
of land located in Worcester County, Maryland, and more particularly described
as follows:


 


All that property lying and
being situate in the Town of Berlin, in the Third Election District, Worcester
county, Maryland, being more particularly designated and distinguished as Unit
Number 200, in “Phase Two Berlin Professional Center, a Commercial Condominium”
a condominium which has been established by Condominium Declaration and By-Laws
made by Milford Street Associates, Inc., dated January 3,1994, and
recorded among the Land records of Worcester County, Maryland, in liber R.H.O. No. 2011,
folio 382, et seq., and amended by First Amendment dated October 6,1994,
and recorded in Liber R.H.O. No. 2099, folio 335, et seq., all as said
Unit and Condominium are defined in the Declaration as shown on those certain
plats described and recorded with Declaration in Plat Book R.H.O. No. 140,
folio 27, et seq., and including an undivided percentage interest in the common
elements of said condominium as more particularly referred to and specified
with respect to the unit in the Declaration and as shown on the aforesaid
Condominium Plats.


 


Schedule 1 to Exhibit A


 














 


Legal Description


 


(Monroe, MI)


 


Real property in the
Township of Frenchtown, County of Monroe, State of Michigan, described as
follows:


 


Part of Private Claims
53 and 652, described as: Commencing 1498.02 feet North 24 degrees 30 minutes
East from the intersection of the centerline of North Macomb Street and the
South line of Lemerand Street extended; thence North 65 degrees 40 minutes 00
seconds West 549.00 feet; thence North 24 degrees 30 minutes 00 seconds East
107.00 feet; thence South 65 degrees 40 minutes 00 seconds East 549.00 feet to
the centerline of Macomb Street; thence South 24 degrees 30 minutes West 107.00
feet to the point of beginning.


 


Re: 1085 N. Macomb Street


 


Tax Item No.:
58-07-053-031-00


 


Schedule 1 to Exhibit A


 

















 


Legal Description


 


(Madison Heights, MI)


 


Real property in the City of
Madison Heights, County of Oakland, State of Michigan, described as follows:


 


Part of the Northeast
1/4 of Section 12, Town 1 North, Range 11 East, City of Madison Heights,
Oakland County, Michigan, described as follows: Beginning at point of distance
North 01 degrees 13 minutes 00 seconds East, 1426 feet and North 88 degrees 39
minutes 00 seconds West, 60 feet from the East corner; thence North 88 degrees
39 minutes 00 seconds West, 278.99 feet; thence North 01 degrees 13 minutes 00
seconds East, 128.50 feet; thence South 88 degrees 39 minutes 00 seconds East,
278.99 feet; thence South 01 degrees 13 minutes 00 seconds West, 128.50 feet to
the point of beginning.


 


Re:
30365 Dequindre Avenue


 


Tax
Item No.: 25-12-227-038


 


Schedule 1 to Exhibit A


 

















 


Schedule 2 to Exhibit A


 


Excluded Personal Property


 


1. All furnishings,
equipment, tools, machinery, trade fixtures, appliances and other tangible
personal property (other than the Fixtures) owned by Seller (including computer
equipment, food, supplies, linens, clothing, medical records, vehicles and any
personal property owned by patients, tenants and invitees of any Property).


 


Schedule 2 to Exhibit A


 

















 


EXHIBIT B


 


CLOSING DELIVERIES AND ALLOCATION OF COSTS


 


I. Deliveries
to Title Company.


 


A.                         Deliveries by Seller. Prior to the Closing, Seller
shall cause to be delivered to Title Company:


 


1.                         A duly executed
and acknowledged special or limited warranty “Deed”
in a form reasonably approved by Buyer conveying each Land and
related Improvements to Buyer (or an Affiliate of Buyer).


 


2.                         Payoff letters
from the holders or claimants of, or with respect to, any encumbrance or
monetary lien affecting any Property.


 


3.                         Any and all
transfer declarations or disclosure documents, duly executed by the appropriate
parties, required in connection with any Deed by any state, city or county
agency having jurisdiction over any Property or the transactions contemplated
hereby.


 


B.                         Deliveries by Buyer. Buyer shall cause to be
delivered to Title Company:


 


1.                         At the Closing,
an amount equal to the Purchase Price plus Buyer’s share of any closing costs
or prorations pursuant to Section 4 by wire transfer to Title
Company in same day available funds, with irrevocable written direction to disburse
the same to the Seller at Closing in accordance with the terms of this
Agreement.


 


II. Deliveries
to Parties.


 


The parties shall cause to
be delivered the following, all of which shall be in form and substance
acceptable to the receiving party, and each of which shall be dated the Closing
Date, duly executed by the delivering (or other appropriate) party and
acknowledged by a notary public where applicable.


 


A.                         Deliveries by Seller. Seller shall cause to be
delivered to Buyer:


 


1.                         A “Bill of Sale” for the Personal Property in the form of Schedule
1 attached hereto.


 


2.                         A “Certificate of Non-Foreign Status” in the form of Schedule
2 attached hereto.


 


3.                         The related Lease between
Buyer, as landlord, and Seller, as “Tenant” in
the form attached to the Agreement as Exhibit “D” (the “Lease”).


 


Exhibit B-1

















 


4.                         The “Lease  Guaranty” from Radiation Therapy Services, Inc., a
Florida corporation (“Guarantor”) guaranteeing
Tenant’s obligations under the Lease.


 


5.                         Any prorated rent under the
Lease for the period from the Closing Date through the end of the calendar
month in which the Closing occurs plus the first full month’s rent
payment under the Lease.


 


6.                         A “Closing Certificate” in the form of Schedule 3 attached
hereto.


 


7.                         Certificates of insurance
for the Property as are required pursuant to the Lease, showing Buyer as an
additional insured and loss payee, with appropriate provisions for prior notice
to Buyer in the event of cancellation or termination of such policies.


 


8.                         Such evidence of the due
execution, delivery and authorization of documents executed by Seller in
connection with this Agreement and the transactions contemplated hereunder as
Buyer may reasonably request.


 


9.                         Such other documents and
instruments as may be reasonably requested by Buyer or Title Company in order
to consummate the transactions described in this Agreement.


 


B.                         Deliveries by Buyer. Buyer shall cause to be
delivered to Seller:


 


1.                         The Lease.


 


2.                         Such evidence of the due
execution, delivery and authorization of documents executed by Buyer in
connection with this Agreement and the transactions contemplated hereunder as
Seller may reasonably request.


 


3.                         Such other documents and
instruments as may be reasonably requested by Seller or Title Company in order
to consummate the transactions described in this Agreement.


 


C.                      Deliveries
by Both Buyer and Seller. Buyer and Seller shall
jointly deliver all notices of change of ownership or other similar notices
required by any governmental or quasi-governmental authority or agency having
jurisdiction over any of the Properties or any activities occurring on any of
the Properties or deemed reasonably advisable by Buyer.


 


III. Allocation
of Closing Costs.


 


A.                         Seller’s
Costs. Seller shall pay all of the following:


 


1.                         Any and all state, municipal
or other documentary, transfer, sales or use taxes payable in connection with
the delivery of any instrument or document provided in or contemplated by this
Agreement, any agreement


 


Exhibit B-2

















 


or commitment described or
referred to herein or the transactions contemplated herein.


 


2.                         Any and all
broker’s fees or similar fees claimed by any party employed by Seller in
connection with the transactions contemplated herein.


 


3.                         Seller’s legal,
accounting and other professional fees and expenses and the cost of all
opinions, certificates, instruments and documents required to be delivered, or
to cause to be delivered, by Seller hereunder, including the cost of all
performances by Seller of its obligations hereunder.


 


4.                         With respect to
those Properties located in Michigan, all expenses of or related to the
issuance of the Title Policy for such Properties. With respect to those
Properties located in Florida, one-half (1/2) of all expenses of or related to
the issuance of the Title Policy for such Properties.


 


5.                         One-half (1/2)
of all escrow fees and charges.


 


B.                         Buyer’s Costs. Buyer shall pay all of the following:


 


1.                         Any and all broker’s fees or
similar fees claimed by any party employed by Buyer in connection with the
transactions hereunder, provided, however, Buyer shall not be
deemed to have employed any party by merely receiving information concerning
Seller, the Property or related to the transactions contemplated hereunder or
by executing any agreement to hold such information confidential.


 


2.                         All costs of
any ALTA surveys, site inspections or environmental audits required by Buyer
and relating to the Property.


 


3.                         Buyer’s legal,
accounting and other professional fees and expenses and the cost of all
certificates, instruments and documents required to be delivered by Buyer
hereunder, including the cost of all performances by Buyer of its obligations
hereunder.


 


4.                         With respect to
the Property located in the state of Maryland, all expenses of or related to
the issuance of the Title Policy for such Property. With respect to those
Properties located in Florida, one-half (1/2) of all expenses of or related to
the issuance of the Title Policy for such Properties. With respect to all
Properties, any endorsements to any Title Policy.


 


5.                         The charges for
or in connection with the recording and/or filing of any instrument or document
provided herein or contemplated by this Agreement (excluding any memoranda of
lease or subordination agreements requested by Seller) or any agreement or
document described or referred to herein


 


Exhibit B-3

















 


6.      One-half (1/2) of all escrow fees and
charges.


 


Exhibit B-4

















 


Schedule 1 to Exhibit B


 


BILL OF SALE AND ASSIGNMENT


 


THIS BILL
OF SALE AND ASSIGNMENT is made as of September 30, 2008, by
21ST CENTURY ONCOLOGY, INC., a Florida corporation; MARYLAND RADIATION
THERAPY MANAGEMENT SERVICES, INC., a Maryland corporation; AMERICAN
CONSOLIDATED TECHNOLOGIES, L.L.C., a Michigan limited liability company
(successor by conversion from American Consolidated Technologies, a Michigan
co-partnership), and PHOENIX MANAGEMENT COMPANY, LLC, a Michigan limited liability
company; (collectively, “Seller”),
in favor of NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation (“Buyer”),  pursuant to the Purchase and Sale
Agreement dated as of September 30, 2008, between Buyer and Seller (each
capitalized term used herein but not otherwise defined shall have the meaning
given the term in such Agreement) with respect to the Real Properties as
defined in such Agreement.


 


FOR VALUE
RECEIVED, receipt of which is hereby acknowledged, Seller does
hereby grant, bargain, sell, convey, assign, transfer, set over, deliver to and
vest in Buyer, its successors and assigns forever, all of Seller’s right, title
and interest in and to all of the Fixtures and the Personal Property. Seller
hereby represents and warrants to Buyer that it is the owner of all right,
title and interest in and to such property, that the property is free and clear
of all liens, charges and encumbrances and that it has full right, power and
authority to sell the property and to make this Bill of Sale and Assignment.
Seller shall warrant and forever defend title to such property for Buyer.


 


IN WITNESS
WHEREOF, Seller has executed this document as of the date
first above written.


 


“SELLER”


 


[SELLER
SIGNATURE BLOCK]


 


Schedule 1 to Exhibit B


 

















 


Schedule 2 to Exhibit B


 


CERTIFICATE OF NON-FOREIGN STATUS


 


21ST CENTURY ONCOLOGY, INC.,
a Florida corporation; MARYLAND RADIATION THERAPY MANAGEMENT SERVICES, INC.,
a Maryland corporation; AMERICAN CONSOLIDATED TECHNOLOGIES, L.L.C., a Michigan
limited liability company (successor by conversion from American Consolidated
Technologies, a Michigan co-partnership), and PHOENIX MANAGEMENT COMPANY, LLC,
a Michigan limited liability company (collectively, “Seller”),  is the
owner of certain real properties located at
                                                      
                                                                                            
which it is selling to NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland corporation (“Buyer”),
under that certain Purchase and Sale Agreement dated as of September 30,
2008 (the “Agreement”).


 


Section 1445 of the
Internal Revenue Code of 1986, as amended (the “Code”)  provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. To inform Buyer that withholding of tax will
not be required when the above-referenced real property is transferred pursuant
to the Agreement, the undersigned hereby certifies the following on behalf of
Seller:


 


1.                  Seller is not a foreign
corporation, foreign partnership, foreign trust, or foreign estate, as those
terms are defined in the Code and the Income Tax Regulations promulgated
thereunder;


 


2.                          Seller is not a
“disregarded entity” as defined in §1445-2(b)(2)(iii);


 


3.                          Seller’s U.S.
employer identification number is
                            ;
and


 


4.                          Seller’s office
address is
                                .


 


Seller understands that this
Certificate may be disclosed to the Internal Revenue Service by Buyer and that
any false statement contained herein could be punished by fine, imprisonment,
or both.


 


Under penalty of perjury I
declare that I have examined this Certificate and to the best of my knowledge
and belief it is true, correct and complete, and I further declare that I have
authority to sign this document on behalf of Seller.


 


Dated as of: September 30,
2008


 


“SELLER”


 


[SELLER
SIGNATURE BLOCK]


 


Schedule 2 to Exhibit B


 

















 


Schedule 3 to Exhibit B


 


CLOSING CERTIFICATE


 


THIS
CLOSING CERTIFICATE is made as of September 30, 2008, by 21ST
CENTURY ONCOLOGY, INC., a Florida corporation; MARYLAND RADIATION THERAPY
MANAGEMENT SERVICES, INC., a Maryland corporation; AMERICAN CONSOLIDATED
TECHNOLOGIES, L.L.C., a Michigan limited liability company (successor by
conversion from American Consolidated Technologies, a Michigan co-partnership),
and PHOENIX MANAGEMENT COMPANY, LLC, a Michigan limited liability company
(collectively, “Seller”),  to NATIONWIDE
HEALTH PROPERTIES, INC., a Maryland corporation (“Buyer”).


 


Pursuant to Section 5.1(e)(ii) of
the Purchase and Sale Agreement dated as of September 30, 2008, between
Seller and Buyer (the “Agreement”),  Seller hereby represents and warrants to
Buyer that each and all of the representations and warranties of Seller
contained in the Agreement are true and correct in all material respects as of
the date hereof as if made on and as of the date hereof.


 


IN WITNESS
WHEREOF, the undersigned has executed this Certificate as of
the date first above written.


 


“SELLER”


 


[SELLER
SIGNATURE BLOCK]


 


Schedule 3 to Exhibit B


 














 


EXHIBIT C


 


CERTAIN DEFINITIONS


 


ENVIRONMENTAL
DEFINITIONS


 


“Environmental
Activities” shall mean the use, generation, transportation,
handling, discharge, production, treatment, storage, release or disposal of any
Hazardous Materials at any time to or from any Land or any Improvements or
located on or present on or under any Land or any Improvements.


 


“Hazardous
Materials” shall mean (a) any
petroleum products and/or by-products (including any fraction thereof),
flammable substances, explosives, radioactive materials, hazardous or toxic
wastes, substances or materials, known carcinogens or any other materials,
contaminants or pollutants as to which liability or standards of conduct are
imposed under Laws relating to Hazardous Materials, which pose a hazard to any
Property or to persons on or about such Property or cause any Property to be in
violation of any Law relating to Hazardous Materials; (b) asbestos in any form which is
friable; (c) urea
formaldehyde in foam insulation or any other form; (d) transformers or other equipment which contain
dielectric fluid containing levels of poly chlorinated biphenyls in excess of
fifty (50) parts per million or any other more restrictive standard then
prevailing; (e) medical
wastes and biohazards; (f) radon
gas; and (g) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority because of its dangerous or deleterious
properties or characteristics or would pose a hazard to the health and safety
of the occupants of any Property or the owners and/or occupants of property
adjacent to or surrounding such Property, including, without limitation, any
materials or substances that are listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) as amended from time
to time.


 


“Phase I
Reports” shall mean, collectively, the Phase I site
assessments prepared by Vertex Environmental Services, Inc. at Buyer’s
request during its due diligence investigations.


 


OTHER
DEFINITIONS


 


“Affiliate”
shall mean with respect to any Person, any other Person which Controls,
is Controlled by or is under common Control with the first Person.


 


“Business
Day” shall mean a day other than Saturday, Sunday or any day on which
banking institutions in the State of California are authorized by law or other
governmental action to close. All other references to “days” in this Agreement
shall refer to calendar days.


 


“Control” shall mean, as
applied to any Person, the possession, directly or indirectly, of the power to
direct the management and policies of that Person, whether through ownership,
voting control, by contract or otherwise.


 


“Person” shall mean any
individual, partnership, association, corporation, limited liability company or
other entity.


 


Exhibit C-1

















 


“CC&R’s” shall mean
covenants, conditions and restrictions or similar use, maintenance or ownership
obligations encumbering or binding upon any Real Property.


 


Exhibit C-2

















 


EXHIBIT D


 


MASTER LEASE


 


Attached


 


D-1

















 


MASTER LEASE


 


This “Master Lease” is entered into as of September 30,
2008 (the “Effective Date”)  between NATIONWIDE
HEALTH PROPERTIES, INC., a Maryland corporation (“Landlord”),  and 21ST CENTURY ONCOLOGY, INC.,
a Florida corporation; MARYLAND
RADIATION THERAPY MANAGEMENT SERVICES, INC., a Maryland
corporation; PHOENIX MANAGEMENT COMPANY, LLC,
a Michigan limited liability company, and AMERICAN CONSOLIDATED TECHNOLOGIES, L.L.C., a Michigan limited
liability company (successor by conversion from American Consolidated
Technologies, a Michigan co-partnership) (collectively, “Tenant”),
for the real properties and improvements thereon (collectively, the “Facilities”) set forth on Schedule 1,
as legally described on Exhibit A, (the “Premises”), each used as a radiation or oncology related
medical office building (individually as so utilized, as such utilization may
be changed pursuant to Section 7.1  (a), and collectively,
the “Business”).  Pursuant to its concurrent Guaranty,
Radiation Therapy Services, Inc., a Florida corporation (“Guarantor”)  has guaranteed Tenant’s obligations hereunder. In
consideration of the mutual covenants, conditions and agreements set forth
herein, Landlord hereby leases the Premises to Tenant for the Term upon the
terms and conditions provided below. Certain capitalized terms used in this
Master Lease are defined on Exhibit E.


 


RECOGNITION OF MASTER LEASE;

IRREVOCABLE WAIVER OF CERTAIN RIGHTS


 


Tenant and Landlord each
acknowledge and agree that this Master Lease constitutes a single, indivisible
lease of the entire Premises, and the Premises constitutes a single economic
unit. The Minimum Rent, Additional Rent, other amounts payable hereunder and
all other provisions contained herein have been negotiated and agreed upon
based on the intent to lease the entirety of the Premises as a single and
inseparable transaction, and such Minimum Rent, Additional Rent, other amounts
and other provisions would have been materially different had the parties
intended to enter into separate leases or a divisible lease. Any Event of
Default under this Master Lease shall constitute an Event of Default as to the
entire Premises.


 


Tenant and Guarantor each
acknowledge and agree that Landlord is entering into this Master Lease as an
accommodation to Tenant and Guarantor. Each of the entities comprising Tenant
and Guarantor, in order to induce Landlord to enter into this Master Lease, to
the extent permitted by law:


 


A. Agrees,
acknowledges and is forever estopped from asserting to the contrary that the
statements set forth in the first sentence of this Section are true,
correct and complete;


 


B. Agrees,
acknowledges and is forever estopped from asserting to the contrary that this
Master Lease is a new and de novo lease, separate and distinct from any other
lease between any of the entities comprising Tenant and any of the entities
comprising Landlord that may have existed prior to the date hereof;


 


C. Agrees,
acknowledges and is forever estopped from asserting to the contrary that this
Master Lease is a single lease pursuant to which the collective Premises are
demised as a whole to Tenant;


 


D-2

















 


D. Agrees, acknowledges
and is forever estopped from asserting to the contrary that if, notwithstanding
the provisions of this Section, this Master Lease were to be determined or
found to be in any proceeding, action or arbitration under state or federal
bankruptcy, insolvency, debtor-relief or other applicable laws to constitute
multiple leases demising multiple properties, such multiple leases could not,
by the debtor, trustee, or any other party, be selectively or individually
assumed, rejected or assigned; and


 


E. Forever
knowingly waives and relinquishes any and all rights under or benefits of the
provisions of the Federal Bankruptcy Code Section 365 (11 U.S.C. § 365),
or any successor or replacement thereof or any analogous state law, to
selectively or individually assume, reject or assign the multiple leases
comprising this Master Lease following a determination or finding in the nature
of that described in the foregoing Section D.


 


16. Term. The “Term” of this Master Lease is the Initial
Term plus all Renewal Terms, and
a “Lease Year” is the twelve (12) month period commencing on October 1
of each year of the Term; provided, however, that the first Lease
Year shall commence on September 30, 2008 and end on September 30,
2009. The “Initial Term” commences
on September 30, 2008 and ends on September 30, 2028, and may be
extended for four (4) separate “Renewal
Terms” of five (5) years each
if: (a) at least twelve (12), but
not more than fifteen (15) months prior
to the end of the then current Term, Tenant delivers to Landlord a “Renewal Notice” that it desires to
exercise its right to extend this Master Lease for one (1) Renewal Term;
and (b) there is no Event of Default on the date Landlord receives the
Renewal Notice (the “Exercise Date”) or on the last day
of the then current Term.


 


17. Rent. During the
Term, Tenant shall pay Landlord “Rent” consisting
of “Minimum Rent” plus “Additional
Rent” determined as provided in this Section 2;
provided, the Rent for any Lease Year shall not be less than one hundred percent (100%) of the Rent for
the previous Lease Year. The Rent for any month that begins or ends on other
than the first or last day of a calendar month shall be prorated based on
actual days elapsed.


 


17.1 Initial
Term Rent. During the Initial Term, “Minimum Rent” is $3,318,476.49 annually, payable in advance
in twelve (12) equal monthly installments. Commencing with the second (2nd) Lease Year and continuing
thereafter during the Term (excluding the first Lease Year of any Renewal
Term), Tenant agrees to pay “Additional Rent”
to Landlord monthly in advance together with the payment of Minimum
Rent. Such Additional Rent (which shall be expressed as an annual amount but
shall be payable in equal monthly installments) shall be equal to the sum of (a) the
Additional Rent for the immediately preceding Lease Year, and (b) the
product of (i) the Minimum Rent and Additional Rent (if any) due for the
immediately preceding Lease Year and (ii) three percent (3.0%).


 


17.2 Renewal
Term Rent. To establish a fair market Minimum Rent for the
Premises during the Renewal Terms, the Minimum Rent for the first three (3) Renewal
Terms shall be reset and expressed as an annual amount equal to the greater of:
(i) one hundred three percent (103%) of the Minimum Rent and Additional
Rent due for the immediately preceding Lease Year, or (ii) the Fair Market
Rent of the Premises on the Exercise Date as established pursuant to Exhibit C,
provided, however, in no event shall the Minimum Rent for the Premises during
the first Lease Year of such Renewal Term(s) be greater than one hundred
ten percent


 


D-3

















 


(110%) of the Minimum Rent
and Additional Rent for the immediately preceding Lease Year. The Minimum Rent
for the Premises during the fourth Renewal Term, if any, shall be reset and
expressed as an annual amount equal to the Fair Market Rent of the Premises on
the Exercise Date. Commencing with the second (2nd) Lease Year of a Renewal Term and continuing each
Lease Year of such Renewal Term thereafter, “Additional
Rent” shall be calculated as provided in Section 2.1 and
as so calculated shall be payable in monthly installments throughout the
remainder of such Renewal Term.


 


17.3 Payment
Terms. All Rent and other payments to Landlord shall be
paid by wire transfer or ACH (Automated
Clearing House) only.  Minimum
Rent and Additional Rent shall be paid in advance in equal monthly installments
on or before the first (1st)Business
Day of each calendar month.


 


17.4 Absolute
Net Lease.  All
Rent payments shall be absolutely net to Landlord, free of any and all Taxes,
Other Charges, and operating or other expenses of any kind whatsoever, all of
which shall be paid by Tenant. Tenant shall continue to perform its obligations
under this Master Lease even if Tenant claims that it has been damaged by
Landlord. Thus, Tenant shall at all times remain obligated under this Master
Lease without any right of set-off, counterclaim, abatement, deduction,
reduction or defense of any kind. Tenant’s sole right to recover damages against
Landlord under this Master Lease shall be to prove such damages in a separate
action.


 


18. Late
Charges. The late payment of Rent or other amounts due will
cause Landlord to lose the use of such money and incur administrative and other
expenses not contemplated under this Master Lease. While the exact amount of
the foregoing is extremely difficult to ascertain, the parties agree that as a
reasonable estimate of fair compensation to Landlord, if any Rent or other
amount is not paid within (i) five (5) days after the due date for
such payment, then Tenant shall thereafter pay to Landlord on demand a late charge equal to three percent (3%) of such delinquent
amounts, and (ii) ten (10) days after the due date for
such payment, such unpaid amount shall accrue
interest from such date at the “Agreed
Rate” of five percent (5%) plus the prime rate of interest
as published in the Wall Street Journal on
the eleventh (11th) day after the due date for such payment.


 


19. Security
Deposit. Except as set forth herein, Tenant shall not be
required to deposit a security deposit with Landlord. Notwithstanding the
foregoing, if, at any time, Guarantor’s Debt to Equity Ratio (as defined in Exhibit E)
exceeds 1.50 to 1.00 then within ten (10) Business Days of receipt of
Landlord’s written request Tenant and Landlord shall enter into a Letter of
Credit Agreement substantially in the form attached hereto as Exhibit G
(the “Letter of Credit Agreement”),  pursuant to which Tenant shall deposit
with Landlord one (1) or more letters of credit in an undrawn face amount
equal to two (2) months of the then Rent as a “Security Deposit” against the faithful performance by Tenant
of this Master Lease. The Security Deposit may again be reduced to zero upon
Guarantor’s Debt to Equity Ratio for any two (2) consecutive calendar
quarters being less than 1.50 to 1.00 as evidenced by (a) Guarantor
providing Landlord with financial statements conforming to the requirements set
forth in Exhibit F demonstrating that Guarantor’s Debt to Equity
Ratio for any two (2) consecutive quarters is less than 1.50 to 1.00 and (b) Guarantor
delivering to Landlord an officer’s certificate executed by Guarantor’s chief
financial officer (or similar financial officer) certifying that such financial


 


D-4

















 


statements have been
prepared in accordance with generally accepted accounting principles and
accurately present the financial position of Guarantor. Upon the satisfaction
of the foregoing requirements, then the Security Deposit shall be reduced to
zero (subject to Guarantor’s Debt to Equity Ratio at any time again exceeding
1.50 to 1.00 in which case Tenant and Guarantor shall once again be required to
comply with the provisions of this Section 4, including, without
limitation, entering into a new Letter of Credit Agreement with Landlord) and (i) Landlord
and Tenant shall have no further liability to each other under the then
existing Letter of Credit Agreement and (ii) within ten (10) Business
Days after Guarantor provides Landlord with the financial statements and
officer’s certificate evidencing Guarantor’s Debt to Equity Ratio for any two (2) consecutive
quarters being less than 1.50 to 1.00, Landlord shall rescind in writing and
return the then existing letter(s) of credit to the issuer.


 


20. Taxes
and Other Charges. At the end of the Term, all Taxes and Other
Charges shall be prorated. If Tenant has prepaid any Taxes or Other Charges for
periods extending beyond the end of the Term, Landlord shall, within forty-five
(45) days of the expiration of the Term, reimburse Tenant for such Taxes and
Other Charges, which obligation shall survive the expiration or earlier
termination of this Lease. Landlord shall promptly forward to Tenant copies of
all bills and payment receipts for Taxes or Other Charges received by it.
Subject to Section 5.1 and Landlord’s obligations to make payments from
the Tax Impound pursuant to Section 5.2 below, Tenant shall pay and
discharge (including the filing of all required returns), prior to delinquency
or imposition of any fine, penalty, interest or other cost (“Penalty”) the following: (i) “Taxes”, consisting of any
property (real and personal) and other taxes and assessments levied or assessed
with respect to this Master Lease or any portion of the Premises, including,
without limitation, any state or county occupation tax, transaction privilege,
franchise taxes, business privilege, rental tax or other excise taxes, and
other assessments levied or assessed against the Premises, Tenant’s interest therein
or Landlord (with respect to this Master Lease and/or the Premises, but
excluding any local, state or federal income tax based upon the net income or
excess profits of Landlord, any capital gains tax imposed on Landlord in
connection with the sale of all or any portion of the Premises to any Person
and any transfer tax or stamps for Landlord’s transfer of any interest in any
portion of the Premises to any Person other than Tenant or any of its
Affiliates), which shall be borne by Landlord, and (ii) “Other Charges”, consisting of any utilities and
other costs and expenses of the Business and operation, possession or use of
any portion of the Premises and all other charges, obligations or deposits
assessed against any portion of the Premises during the Term. Tenant may pay
all of any portion of the Taxes or the Other Charges in permitted installments
(whether or not interest accrues on the unpaid balance) when due and before any
Penalty. Tenant will furnish to Landlord, promptly after demand therefor, proof
of payment of Taxes and Other Charges which are paid by Tenant.


 


20.1 Protests. Each party
has the right, but not the obligation, in good faith to protest or contest (a “Protest”) in whole or in part (i) the amount or payment of any Taxes
or Other Charges and (ii) the
existence, amount or validity of any Lien (as defined in Section 8.1) by
appropriate proceedings sufficient to prevent its collection or other
realization and the sale, forfeiture or loss of any portion of the Premises or
Rent to satisfy it (so long as, in the case of any Protest or contest by
Tenant, Tenant provides Landlord with reasonable security to assure the
foregoing, which security may take the form of a title indemnity (in a form
reasonably acceptable to Landlord and from a national title company reasonably
acceptable to Landlord) or payment of the amount due the lien claimant),
provided that if as a result of any Protest initiated by


 


D-5

















 


Landlord, such Taxes, Other
Charges or the amount of any Lien increases above the protested amount, such
increase shall be borne exclusively by Landlord. Each party shall diligently
prosecute any such Protest initiated by it at its sole cost and expense. In
connection with any Protest that Tenant is diligently pursuing regarding Taxes,
subject to Landlord’s obligation to make payments from the Tax Impound pursuant
to Section 5.2, Tenant shall pay the Taxes that are the subject of
such Protest before the imposition of any Penalty. In connection with any
Protest that Tenant is diligently pursuing regarding any Other Charges or
Liens, Tenant shall pay such Other Charges or pay such Liens (or otherwise
cause them to be removed) before any part of the Premises or any Rent therefrom
or interest therein is in any danger of being sold, forfeited, attached or
lost. At Tenant’s sole cost and expense, Landlord will cooperate fully in any
Protest that involves an amount assessed against it and, at Tenant’s request,
in the case of any Protest in which Tenant is prohibited from solely
prosecuting such proceedings by applicable law.


 


20.2 Impound.
Tenant shall include with each Minimum Rent payment a deposit of one-twelfth (l/12th) of the amount required to discharge the annual
amount of real property Taxes secured by a Lien encumbering any portion of the
Premises (“Real Property Taxes”)
as and when they become due (the “Tax
Impound”).  The
amounts held by Landlord in the Tax Impound shall be applied by Landlord
directly to the payment of the Taxes in a timely fashion and prior to the
imposition of any Penalty, and, except if resulting from insufficient funds in
the Tax Impound, if any Penalty results from Landlord’s failure to timely make
any such payment, such Penalty shall be paid by Landlord. The Tax Impound shall
be calculated on the basis of the most recent available levy applied to the
most recent available assessment of Real Property Taxes. The Tax Impound shall
not be held by Landlord in trust or as an agent of Tenant, but rather shall be
applied by Landlord to the Taxes. The Tax Impound shall earn interest on an
annual basis based upon the average interest earned during such year by
Landlord on its cash deposits. Interest earned on the Tax Impound for a given
Lease Year shall, at Tenant’s election either (a) be
paid to Tenant within thirty (30) days of the end of the Lease Year, or (b) in the case of (i) a Lease Year that is not the final
Lease Year, be credited against the amount of Tax Impound due from Tenant to
Landlord for the first month (or additional month(s) if such credit
exceeds the amount of Tax Impound due for such first month) of the subsequent
Lease Year, or in the case of (ii) the
final Lease Year, paid to Tenant within thirty (30) days of the expiration of
the Term or earlier termination of this Master Lease. If at any time within thirty (30) days prior to the due date the
Tax Impound shall be insufficient for the payment of the obligation in full,
Tenant shall within ten (10) days after
demand deposit the deficiency with Landlord. If the Tax Impound is in excess of
the actual obligation, at Tenant’s election any excess funds shall either (x) be paid to Tenant within thirty (30) days of the
end of the Lease Year, or (y) in the
case of (1) a Lease Year that
is not the final Lease Year, be credited against the amount of Tax Impound due
from Tenant to Landlord for the first month (or additional month(s) if
such credit exceeds the amount of the Tax Impound due for such first month) of
the subsequent Lease Year, or in the case of (2) the
final Lease Year, paid to Tenant within thirty (30) days of the expiration of
the Term or earlier termination of this Master Lease. Tenant shall forward to
Landlord or its designee all Tax bills, bond and assessment statements as soon
as they are received and receipts for payment of all Taxes required to be paid
by Tenant. If Landlord transfers this Master Lease, it shall transfer the Tax
Impound, and all interest earned thereon, to the transferee, and Landlord shall
thereafter have no liability of any kind with respect thereto.


 


D-6

















 


21. Insurance.
All insurance provided for in this Master Lease shall (i) be maintained under valid and
enforceable policies issued by insurers licensed and approved to do business in
the state(s) where the applicable Facility or portion of the Premises is
located and having general policyholders and financial ratings of not less than
“A-” and “X”, respectively, in the then current Best’s Insurance Report, (ii) name Landlord as an additional
insured and, for the casualty policy referenced in Section 6(a), as
the owner and loss payable beneficiary, (iii) be
on an “occurrence” basis, (iv) cover
all of Tenant’s operations at the applicable Facility or portion of the
Premises, (v) provide that
the policy may not be canceled except upon not less than thirty (30) days prior written notice to
Landlord and (vi) be primary
and provide that any insurance with respect to any portion of the Premises
maintained by Landlord is excess and noncontributing with Tenant’s insurance.
The parties hereby waive as to each other all rights of subrogation (other than
with respect to Worker’s Compensation Coverage described below) which any
insurance carrier, or either of them, may have by reason of any provision in
any policy issued to them, provided such waiver does not thereby invalidate
such policy. Original policies or satisfactory insurer certificates evidencing
the existence of the insurance required by this Master Lease and showing the
interest of Landlord shall be provided to it prior to the commencement of the
Term or, for a renewal policy, not less than five
(5) days prior to the expiration date of the policy being
renewed. If Landlord is provided with a certificate, it may demand that Tenant
provide a complete copy of the related policy within fifteen (15) days. Tenant may satisfy the insurance
requirements hereunder through coverage under a so-called blanket policy or
policies of insurance carried and maintained by Tenant; provided, however, that
the coverage afforded Landlord will not be reduced or diminished or otherwise
be different from that which would exist under a separate policy meeting all
other requirements of this Master Lease by reason of the use of such blanket
policy of insurance. During the Term, Tenant shall maintain the following
insurance and any claims thereunder shall be adjudicated by and at the expense
of it or its insurance carrier:


 


(a) Fire
and Extended Coverage with respect to each Facility against loss or
damage from all causes under standard “all risk” property insurance coverage
with an agreed amount endorsement (such that the insurance carrier has accepted
the amount of coverage and has agreed that there will be no co-insurance
penalty), without exclusion for fire, lightning, windstorm, explosion, smoke
damage, vehicle damage, sprinkler leakage, flood, vandalism, earthquake,
malicious mischief or any other risks normally covered under an extended
coverage endorsement, in amounts that are not less than the actual replacement
value of such Facility and all Tenant Personal Property associated therewith
(including the cost of compliance with changes in zoning and building codes and
other laws and regulations, demolition and debris removal and increased cost of
construction). Additionally, if any Facility contains steam boilers, steam
pipes, steam engines, steam turbines or other high pressure vessels, insurance
with an agreed amount endorsement (such that the insurance carrier has accepted
the amount of coverage and has agreed that there will be no co-insurance
penalty), covering the major components of the central heating, air
conditioning and ventilating systems, boilers, other pressure vessels, high
pressure piping and machinery, elevators and escalators, if any, and other
similar equipment installed in the Facility, in an amount equal to one hundred
percent (100%) of the full replacement cost of the Facility, which policies
shall insure against physical damage to and loss of occupancy and use of the
Facility arising out of an accident or breakdown covered thereunder.
Notwithstanding any provision to the contrary herein, insurance coverage for
earthquake shall be limited to One Million Dollars ($1,000,000) in the
aggregate for the entire Premises and, with respect to the


 


D-7

















 


portion of the Premises
located in Key West, Florida, the insurance coverage for flood shall not be
less than the maximum limit allowable under the National Flood Insurance
Program. Further, the flood insurance coverage stated herein concerning actual
replacement value of such Facility and all Tenant Personal Property shall only
apply to the Facilities located in Englewood, Florida, Venice, Florida, Fort
Myers, Florida, and Naples, Florida, and that flood coverage associated with Tenant
Personal Property for these Florida locations shall be limited to One Million
Dollars ($1,000,000) each location in excess of the limit provided under the
National Flood Insurance Program for these Florida locations.


 


(b) Commercial
General Public Liability Coverage with respect to each
Facility (including products liability and broad form coverage) against claims
for bodily injury, death or property damage occurring on, in or about such
Facility, affording the parties protection of not less than One Million Dollars
($1,000,000)  per occurrence and Three Million Dollars ($3,000,000) in the aggregate, which
maximum aggregate limit may be satisfied with the combination of commercial
general public liability coverage and excess and/or umbrella coverage;


 


(c) Professional
Liability Coverage with respect to each Facility for damages for
injury, death, loss of service or otherwise on account of professional services
rendered or which should have been rendered, in a minimum amount of One Million
Dollars ($1,000,000) per
occurrence and Three Million Dollars ($3,000,000)
in the aggregate;


 


(d) Worker’s
Compensation Coverage with respect to each Facility for injuries
sustained by Tenant’s employees in the course of their employment and otherwise
consistent with all applicable legal requirements;


 


(e) Business
Interruption and Extra Expense Coverage with respect to each
Facility for loss of rental value for a period not less than one (1) year, covering perils
consistent with the requirements of Section 6(a) and providing
that any covered loss thereunder shall be payable to the Landlord as its
interests may appear, and (A) including either an agreed amount
endorsement or a waiver of any co-insurance provisions, so as to prevent
Tenant, Landlord and any other insured thereunder from being a co-insurer, or (B) if
such insurance contains a co-insurance provision, with a limit greater than or
equal to ten (10) times the amount of annual Minimum Rent and Additional
Rent then payable under this Master Lease; and


 


(f) Deductibles/Self-Insured
Retentions for the above policies shall not be greater than One
Hundred Twenty Five Thousand Dollars ($125,000).
At such times and only so long as policies of insurance with
deductibles or self-insured retentions not greater than One Hundred Twenty Five
Thousand Dollars ($125,000) are generally not available to operators of
businesses similar to that then being conducted at the Premises at commercially
reasonable rates, as determined by Landlord in its reasonable judgment, the
deductibles or self-insured retentions on the policies of insurance required
hereunder may be in such greater amount, as determined by Landlord in its
reasonable judgment, that would result in the applicable policies being
available at commercially reasonable rates, not to exceed Two Hundred Fifty
Thousand Dollars ($250,000). Notwithstanding the foregoing, with respect to
windstorm/hail coverage, the deductibles/self-insured retentions for a Facility
shall be equal to the greater of (i) such
amounts permitted under the preceding two sentences, (ii) with respect to only those Facilities located in


 


D-8














 


the State of Florida,
$250,000, and (iii) five
percent (5%) of the total insurable value of the applicable Facility.


 


22. Use,
Regulatory Compliance and Preservation of Business.


 


22.1 Permitted
Use.


 


(a) Tenant shall
use, operate and occupy each Facility as a radiation or oncology related
medical office building and treatment center, and for ancillary services
relating thereto, but for no other purpose; provided, however, that Tenant may,
with the written approval of Landlord (subject to the succeeding sentence, to
be granted or withheld in the exercise of its sole and absolute discretion)
change the use of a Facility to a different use so long as Tenant shall
continue to use, operate and occupy such Facility for a use in the medical
services industry. Landlord, upon the written request of Tenant, shall approve
a change in the use of a Facility if the following conditions are met: (i) the proposed change in use is for
a use in the medical services industry, (ii) Tenant
has obtained and provided to Landlord appraisals (prepared by an appraiser
reasonably acceptable to Landlord) that take into account the proposed change
in use and that demonstrate to Landlord’s reasonable satisfaction that the fair
market value of such Facility after the change in use will equal or exceed the
portion of Landlord’s Investment allocable to such Facility, and (iii) Tenant has obtained or agrees to
obtain prior to such change in use all licenses, certificates, permits and all
other approvals required by law in connection with operating the Facility for
the proposed new use. Tenant shall operate each Facility and the Business
conducted thereon in a manner consistent with all applicable laws.


 


(b) Tenant shall
continuously and uninterruptedly use, operate and occupy each Facility throughout
the Term; provided, however, that (i) Tenant
may close down the operations of a Facility in connection with Tenant’s
refurbishing, upgrading, or changing the permitted use of such Facility for a
commercially reasonable amount of time required to complete such refurbishment,
upgrades, or change in use; but in no event shall such period of time exceed
two hundred seventy (270) days, and (ii) subject
to the Tenant’s restoration obligations contained in this Master Lease, Sections
17 and 18, a Facility may
be temporarily closed down to the extent and for the period of time such
Facility is untenantable by reason of fire or other casualty or condemnation.


 


(c) Notwithstanding
Tenant’s continuous use obligation contained in Section 7.1 (b),
Tenant may elect to discontinue operations at up to two (2) Facilities at
any one time during the Term provided that, except as expressly stated herein,
there shall be no abatement or reduction of Rent and provided further that: (i) effective on the date two hundred
and seventy (270) days after such closure, with respect to each Facility that
Tenant elects to so close, the amount of annual Minimum Rent then payable by
Tenant under this Master Lease shall be increased by an amount equal to the
Facility Closure Rent Increase (as defined below), (ii) on the date that is twelve (12) months from the date
after such initial Facility Closure Rent Increase and provided such Facility
remains closed, the amount of annual Minimum Rent then payable by Tenant under
this Master Lease shall again be increased by an amount equal to the Facility
Closure Rent Increase, (iii) Tenant
shall give written notice to Landlord within ten (10) days after Tenant
elects to cease operation, (iv) Tenant
shall provide adequate protection and maintenance of any Facility during any
period of vacancy, and (v) Tenant
shall comply with all


 


D-9

















 


applicable laws and comply
with the terms and conditions of this Master Lease other than the continuous
use covenant set forth in Section 7.1(b). As used herein “Facility Closure Rent Increase” shall mean
an amount equal to the product of (x) a fraction, the numerator of which
is Landlord’s Investment and the denominator of which is twelve (12) and (y) one-half
of one percent (0.5%). If at anytime during the Term of this Master Lease, a
Facility that was closed resulting in a Facility Closure Rent Increase pursuant
to this Section 7.l(c) is re-opened or is no longer included
as part of the Premises pursuant to Sections 17,  18, 24,
or otherwise, upon the date such Facility is re-opened or no longer included in
the Premises, annual Minimum Rent shall be reduced by any Facility Closure Rent
Increase imposed in connection with the closure of such Facility.


 


22.2 Regulatory
Compliance. Tenant, each Facility and the other portions of
the Premises shall comply in all material respects with all licensing and other
laws and all CC&R’s and other use or maintenance requirements applicable to
the Business conducted thereon and, to the extent applicable, all Medicare,
Medicaid and other third-party payor certification requirements, including
timely filing properly completed cost and other required reports, timely paying
all expenses shown thereon, and ensuring that each Facility, to the extent
required in connection with the then permitted use pursuant to Section 7.1
(a), continues to be fully certified for participation in Medicare and
Medicaid throughout the Term. Further, Tenant shall not commit any act or
omission that would in any way violate any certificate of occupancy affecting
any Facility. All inspection fees, costs and charges associated with a change
of such licensure or certification shall be borne solely by Tenant. In
addition, Tenant shall operate each Facility in full compliance with the
applicable provisions of the Medicare Anti-Kickback Law, 42 U.S.C. 1320a-7(b),
and the Stark Self-Referral Prohibition Act, 42 U.S.C. 1395nn et. seq., as the
same may be modified, supplemented or replaced from time to time, and all
regulations promulgated thereunder from time to time.


 


22.3 Quiet
Enjoyment. So long as no Event of Default has occurred and is
continuing, Landlord covenants that Tenant may peaceably and quietly have, hold
and enjoy the Premises for the Term, free of any claim or other action not
caused or created by Tenant, subject to Sections 17 or 18.


 


22.4 Right
of First Opportunity. So long as Landlord is not
in default under this Master Lease, in the event that at any time during the
Term Tenant, or an Affiliate, elects to enter into a sale-leaseback transaction
with respect to a Target Facility and market such opportunity to any third
party that is not an employee, investor, owner, or Affiliate of Tenant (the “Right of First Opportunity Event”), the
following provisions shall apply:


 


(a) “Target
Facility” shall mean a healthcare facility or facilities of
comparable (or superior) type, use and quality to the Facilities.


 


(b) Tenant shall
provide Landlord with written notice of the Right of First Opportunity Event
and Tenant’s proposed terms on which it or its Affiliate intends to market the
Target Facility and a general description of the Target Facility (the “Opportunity Notice”). Landlord shall have
a period of fifteen (15) Business Days (the “Protected
Period”) to offer the basic terms and conditions under which
Landlord would agree to purchase the Target Facility and enter into a lease for
the Target Facility on substantially the same terms as this Master Lease


 


D-10

















 


(the “Target Transaction”),  which Tenant may accept or reject in its
sole and absolute discretion or for any reason or no reason at all. In the
event Tenant does not accept Landlord’s proposed Target Transaction, then
Tenant shall be free to market and sell the Target Facility to any other person
or entity.


 


23. Acceptance,
Maintenance, Upgrade, Alteration and Environmental.


 


23.1 Acceptance
“AS IS”; No Liens. Tenant acknowledges that it or an Affiliate
has been in possession of and operating the Premises prior to the date of this
Master Lease and is presently engaged in operations like the Business conducted
at each Facility in the state where such Facility is located and has expertise
in such industry and, in deciding to enter into this Master Lease, has not relied
on any representations or warranties, express or implied, of any kind from
Landlord with respect to the Premises. Tenant has examined the condition of
title to and thoroughly investigated the Premises, has selected the Premises to
its own specifications, has concluded that, as of the date hereof, no
improvements or modifications are required to be made by Landlord in order to
conduct the Business thereon, and accepts them on an “AS IS” basis and assumes
all responsibility and cost for the correction of any observed or unobserved
deficiencies or violations. It is expressly
understood and agreed that any inspection by or on behalf of the Landlord of
the business conducted at the Premises or of the Premises is for Landlord’s
sole and exclusive benefit and is not directly or indirectly for the benefit
of, nor should be relied in any manner upon by, Tenant, its subtenants or any
other third party. Subject to its right to Protest set forth in Section 5.1,
Tenant shall not cause or permit any lien, levy or attachment to be placed or
assessed against any portion of the Premises or the operation thereof (a “Lien”)  other
than “Permitted Exceptions” as described on Exhibit D, and any
mortgage, lien, encumbrance, or other charge created by or resulting solely
from any act or omission of Landlord.


 


23.2 Tenant’s
Maintenance Obligations. Tenant shall (i) keep and maintain the Premises in
good appearance, repair and condition and maintain proper janitorial services, (ii) promptly make all repairs
(interior and exterior, structural and nonstructural, ordinary and
extraordinary, foreseen and unforeseen) necessary to keep each Facility in good
and lawful order and condition and in substantial compliance with all
applicable requirements and laws relating to the business conducted thereon,
including, if applicable certification for participation in Medicare and
Medicaid, and (iii) keep and
maintain all Landlord and Tenant Personal Property in good condition, ordinary
wear and tear, casualty and condemnation excepted, and repair and replace such
property consistent with prudent industry practice.


 


23.3 Upgrade
Expenditures. On or before the date that is thirty (30) days
after the expiration of each Lease Year, Tenant shall provide to Landlord
documentation and other evidence demonstrating to Landlord’s reasonable
satisfaction that Tenant has, during the preceding Lease Year, expended an
amount equal to or exceeding the CapEx Amount, multiplied by the aggregate
rentable square footage of the Facilities on the last day of the preceding Lease
Year, for Upgrade Expenditures relating to the Premises. As used herein the “CapEx Amount” shall mean an amount equal
to One Dollar ($1.00) (as adjusted at the end of each Lease Year for increases
since the Effective Date in the CPI). “Upgrade
Expenditures” means expenditures in commercially reasonable amounts
to Persons not affiliated with Tenant for (i) upgrades
or improvements to each Facility that have the effect of maintaining or
improving such Facility,


 


D-11

















 


including new or replacement
wallpaper, tiles, window coverings, lighting fixtures, painting, upgraded
landscaping, carpeting, architectural adornments, common area amenities and the
like, including, without limitation, capital improvements or repairs (including
repairs or replacements of the roof, structural elements of the walls, parking
area or the electrical, plumbing, HVAC or other mechanical or structural
systems), and (ii) other improvements to each Facility as reasonably
approved by Landlord, which shall include those matters, if any, that Landlord
has approved in writing as of the Effective Date based on descriptions and
budgets that Tenant has provided prior thereto. As used herein, “CPI” shall mean the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index for All
Urban Wage Earners and Clerical Workers, United States Average, Subgroup “All
Items” (1982-1984 = 100).


 


23.4 Alterations
by Tenant. Tenant may alter, improve, exchange, replace,
modify or expand (collectively, “Alterations”)
the Premises from time to time as it may determine is desirable for the
continuing and proper use and maintenance of the Premises; provided, that any
Alterations in excess of Two Hundred Fifty
Thousand Dollars ($250,000) with respect to any individual Facility
in any rolling twelve (12) month period
shall require Landlord’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; provided further, that any
Alterations to the Premises must satisfy the requirements set forth in Sections
4.04 (2) and (3) of Revenue Procedure 2001-28,2001-191.R.B. 1156. All
Alterations shall immediately become a part of the Premises and the property of
Landlord subject to this Master Lease, and the cost of all Alterations or other
purchases, whether undertaken as an on-going licensing, Medicare, Medicaid or
other regulatory requirement, or otherwise shall be borne solely by Tenant. All
Alterations shall be done in a good and workmanlike manner in compliance in all
material respects with all applicable laws and the insurance required under
this Master Lease. If an Alteration changes the rentable square footage of a
Facility, Tenant shall promptly provide Landlord notice of the same and upon
delivery of such notice, Schedule 1 shall be deemed amended to reflect
such revised rentable square footage for the applicable Facility.


 


23.5 Hazardous
Materials. Tenant’s use of the Premises shall comply in all
material respects with all Hazardous Materials Laws. If any Environmental
Activities occur or are suspected to have occurred in material violation of any
Hazardous Materials Laws or if Tenant has received written notice of any
Hazardous Materials Claim against any portion of the Premises, Tenant shall
promptly remedy any such violation or claim to the reasonable satisfaction of
Landlord and in accordance in all material respects with all applicable
governmental authorities, as required by Hazardous Materials Laws. Tenant and
Landlord shall promptly advise one another in writing upon receiving written
notice of (a) any
Environmental Activities in material violation of any Hazardous Materials Laws;
(b) any Hazardous Materials
Claims against Tenant or Landlord in connection with the Premises (or any
portion of the Premises); (c) any
remedial action taken by Tenant or Landlord in response to any Hazardous
Materials Claims or any Hazardous Materials on, under or about any portion of
the Premises in material violation of any Hazardous Materials Laws; (d) any occurrence or condition on or
in the vicinity of any portion of the Premises of which Tenant or Landlord, as
applicable, has actual knowledge and that materially increases the risk that
any portion of the Premises will be exposed to Hazardous Materials; and (e) all material communications to or
from Tenant, any governmental authority or any other Person relating to
Hazardous Materials Laws or Hazardous Materials Claims with respect to any
portion of the Premises, including copies thereof. Notwithstanding any other
provision of this Master Lease, if any Hazardous Materials are


 


D-12

















 


discovered on or under any
portion of a Facility in violation of any Hazardous Materials Law, the Term
shall be automatically extended with respect to such Facility only and this
Master Lease shall remain in full force and effect with respect to such
Facility only until the earlier to occur of (i) the
completion of all remedial action or monitoring, as reasonably approved by
Landlord, in accordance with all Hazardous Materials Laws, or (ii) the date specified in a written
notice from Landlord to Tenant terminating this Master Lease (which date may be
subsequent to the date upon which the Term was to have expired).
Notwithstanding the foregoing, unless the Initial Term of this Master Lease is
renewed pursuant to Section 1, above, in no event shall the
provisions of this Section 8.5 extend the Term for a Facility
beyond September 29, 2038 as to such Facility; provided, however, that
Tenant’s obligations to complete all remedial action or monitoring pursuant to
this Section 8.5 shall survive any such termination of the Term.
Landlord shall have the right, at Tenant’s sole cost and expense (including,
without limitation, Landlord’s reasonable attorneys’ fees and costs) and with
counsel chosen by Landlord, to join and participate in, as a party if it so
elects, any legal proceedings or actions initiated in connection with any
Hazardous Materials Claims.


 


23.6 Medical
Waste. Tenant shall be responsible for all Medical Waste
disposal for each Facility, which disposal shall be provided by a licensed
medical waste hauler and shall comply in all material respects with all
applicable laws, rules, regulations and orders. If Tenant elects to provide
Medical Waste disposal services to the subtenants in a Facility, such services
shall be provided in compliance in all material respects with all applicable
laws, rules, regulations and orders.


 


23.7 Immediate
Repairs. On or before the date that is ninety (90) days
after the Effective Date (the “Outside Date”),
Tenant shall, at its sole cost and expense, complete those repairs
and replacements identified and further described on Exhibit I
attached hereto and incorporated herein by reference (the “Immediate Repairs”).  On or before the Outside Date Tenant shall
provide Landlord with documentation reasonably acceptable to Landlord
evidencing that the Immediate Repairs have been completed in accordance with
the provisions of this Section 8.7. All Immediate Repairs shall be
done in a good and workmanlike manner in compliance in all material respects
with all applicable laws and the insurance required under this Master Lease.


 


24. Tenant
Property.


 


24.1 Tenant
Property. Tenant may obtain and install all items of
furniture, fixtures, trade fixtures, supplies and equipment as Tenant
determines are reasonably necessary or reasonably appropriate to operate the
Premises (“Tenant Personal Property”).  As used herein, “Tenant Intangible Property” means all the following at any
time owned by Tenant in connection with its use of any portion of the Premises:
Medicare, Medicaid and other accounts and proceeds thereof; rents, profits,
income or revenue derived from such operation or use; all documents, chattel
paper, instruments, contract rights (including all leases with subtenants and
contracts with employees and third-parties), deposit accounts, general
intangibles and choses in action; refunds of any Taxes or Other Charges; if
applicable, licenses and permits necessary or desirable for Tenant’s use of any
portion of the Premises, any applicable certificate of need, occupancy or other
similar certificate, and the exclusive right to transfer, move or apply for the
foregoing and manage the business conducted at any portion of the Premises; and
the right to use


 


D-13

















 


the names set forth on Schedule
1 and any other trade or other name now or hereafter associated with its
operation of the Premises.


 


24.2 Schedule
of Tenant Property. Upon the execution of this Master Lease by
Tenant, Tenant shall deliver to Landlord a schedule of all lenders, purchase
money equipment financiers, equipment lessors, and other parties who, other
than Tenant, have any liens, security interests, ownership interests, or other
similar interests in and to any Tenant Personal Property with a value of or
exceeding Two Hundred Fifty Thousand Dollars ($250,000) (the “Tenant Property Schedule”).  The Tenant Property Schedule shall be in a
form reasonably acceptable to Landlord and shall include: (i) the name, address, and other
contact information for the agent or lead bank (“Agent Bank”)  in
connection with Tenant’s senior credit facility, and (ii) a detailed breakdown, by Facility, of each
applicable item of Tenant Personal Property, its age, useful economic life, and
estimated value, and any lenders, purchase money equipment financiers,
equipment lessors, or other parties who have a lien, security interest,
ownership interest, or other similar ownership interest in such item and the
contact information for any and all such parties. Tenant shall be required to
deliver to Landlord an updated Tenant Property Schedule upon the commencement
of each Lease Year and in connection with any change or replacement of Agent
Bank.


 


24.3 Waiver
of Landlord’s Lien. Landlord hereby waives any statutory or
common law lien that may be granted or deemed to be granted to Landlord in
Tenant Personal Property or Tenant Intangible Property. In addition, Landlord
agrees that, upon the request of any Person that shall be providing senior
secured financing to Tenant, or a purchase money equipment financier or
equipment lessor of Tenant, Landlord shall, at Tenant’s sole cost and expense,
negotiate in good faith for the purpose of executing and delivering a
commercially reasonable waiver or subordination of Landlord’s statutory lien
rights, if any, and a consent and agreement with respect to the respective
rights of Landlord and such Person regarding the security interests in, and the
timing and removal of, any Tenant Personal Property or Tenant Intangible
Property which such Person has a secured interest (the “Collateral”), in form and substance
reasonably acceptable to Landlord and such Person, so long as such waiver and
agreement (i) provides for
the indemnification of Landlord against any claims by Tenant or any Person
claiming through Tenant, and against any physical damage caused to the
Premises, in connection with the removal of any of the Collateral by such
Person, (ii) provides for a
reasonable, but limited, time frame for the removal of such Collateral by such
Person after the expiration of which same shall be deemed abandoned, and (iii) provides for the per diem
payment of Rent due hereunder by such Person for each day following the date of
the expiration or termination of this Master Lease that Landlord permits such
Person’s Collateral to remain in the Premises.


 


25. Financial,
Management and Regulatory Reports. Tenant shall provide
Landlord with the reports listed in Exhibit F at the time described
therein, and such other information about it or the operations of the Premises
and the Business as Landlord may reasonably request from time to time,
including such information reasonably requested in connection with a financing
of the Premises sought by Landlord. All financial information provided shall be
prepared in accordance with generally accepted accounting principles
consistently applied and shall be submitted electronically in the form of
unrestricted, unlocked “.xls” spreadsheets (or, if restricted or locked, Landlord
has been provided with all necessary


 


D-14

















 


passwords and access keys
required to fully access or extract the subject data therefrom) created using
Microsoft Excel (2003 or newer editions). In the event Tenant fails to provide
Landlord with the reports listed in Exhibit F within the time
periods specified therein, Tenant shall have a grace period of five (5) Business
Days after receipt of written notice of such failure from Landlord to provide
such reports, after which Tenant will be assessed with a $500 administrative
fee, which administrative fee shall be immediately due and payable to Landlord.


 


26. Representations
and Warranties. Each party represents and warrants to the other
that: (i) this Master Lease
and all other documents executed or to be executed by it in connection herewith
have been duly authorized and shall be binding upon it; (ii) it is duly organized, validly
existing and in good standing under the laws of the state of its formation and
is duly authorized and qualified to perform this Master Lease within the state(s) where
any portion of the Premises is located; and (iii) neither
this Master Lease nor any other document executed or to be executed in
connection herewith violates the terms of any other agreement of such party.


 


27. Events
of Default. The occurrence of any of the following events will
constitute an “Event of Default”
on the part of Tenant, and there shall be no cure period therefor except as
otherwise expressly provided:


 


(a) Tenant’s
failure to pay any Rent within two (2) Business Days of when due;


 


(b) Tenant’s
failure to pay when due Taxes, any Other Charges or other payments required to
be made by Tenant under this Master Lease, which failure continues for ten (10) days
after receipt of written notice from Landlord of such failure;


 


(c) (i) Except as
permitted in accordance with the provisions of Section 7.1(c), the
suspension or material limitation of any license, or, if applicable, the
certification of any portion of the Premises for provider status under Medicare
or Medicaid which would have a material adverse affect on the operation of any
Facility for the then permitted use pursuant to Section 7.1(a);
provided, however if any such suspension or material limitation is curable by
Tenant it shall not constitute an Event of Default if Tenant promptly commences
to cure such breach and thereafter diligently pursues such cure to the
completion thereof within the lesser of (x) the
time period in which the applicable governmental agency has given Tenant to
undertake corrective action or (y) one
hundred eighty (180) days after the occurrence of any such suspension or
material limitation; (ii) except
as permitted in accordance with the provisions of Section 7.1(c),
the revocation of any license or, if applicable, the certification of any
portion of the Premises for provider status under Medicare or Medicaid which
would have a material adverse affect on the operation of any Facility for the
then permitted use pursuant to Section 7.1  (a); (iii) the discontinuance of operations
at any Facility, except as may be permitted pursuant to Sections 7.1 or 24.5;
(iv) the failure to maintain
any certificate of need or other similar certificate or license required to
operate any Facility for the then permitted use in accordance with the
provisions of Section 7.1, which failure would have a material
adverse affect on the operation of any Facility; or (v) the use of any material portion of the Premises other
than as permitted pursuant to Section 7.1;


 


D-15

















 


(d) A default
beyond any applicable cure period by Tenant (i) under
the Letter of Credit Agreement or with respect to any obligation in excess of
one million dollars ($1,000,000) under any other lease, agreement or obligation
between Tenant and Landlord or any of Landlord’s Affiliates, or (ii) in any payment of principal or
interest on any obligations of borrowed money having an original principal
balance of one hundred million dollars ($100,000,000) or more in the aggregate,
or in the performance of any other provision contained in any instrument under
which any such obligation is created or secured (including the breach of any
covenant thereunder), (x) if
such payment is a payment at maturity or a final payment, or (y) if an effect of such default is to
cause, or permit any Person to cause, such obligation to become due prior to
its stated maturity;


 


(e) A default
beyond any applicable cure period by any Guarantor under the Guaranty;


 


(f) Any material
misrepresentation by Tenant under this Master Lease or in any written report,
notice or communication made pursuant hereto from Tenant to Landlord with
respect to Tenant, any Guarantor, or the Premises;


 


(g) The failure to
perform or comply with the provisions of Sections 6 or 16;


 


(h) (i) Tenant shall
generally not pay its debts as they become due, or shall admit in writing its
inability to pay its debts generally, or shall make an assignment of all or
substantially all of its property for the benefit of creditors; or (ii) a receiver, trustee or liquidator
shall be appointed for Tenant or any Facility if such appointment is not
discharged within sixty (60) days after
the date of such appointment; (iii) the
filing by Tenant of a voluntary petition under any federal bankruptcy or state
law to be adjudicated as bankrupt or for any arrangement or other debtor’s
relief; or (iv) the
involuntary filing of such a petition against Tenant by any other party unless
such petition is dismissed within ninety
(90) days after filing; or


 


(i) The failure to
perform or comply with any other provision of this Master Lease not requiring
the payment of money unless Tenant cures it either (i) within thirty (30)
days after receipt of written notice from Landlord of such failure
or (ii) if such default
cannot with due diligence be so cured because of the nature of the default or
delays beyond the control of Tenant and cure after such period will not have a
materially adverse effect upon any Facility, then such default shall not
constitute an Event of Default if Tenant uses its best efforts to cure such
default by promptly commencing and diligently pursuing such cure to the
completion thereof and cures it within one
hundred eighty (180) days after such notice from Landlord.


 


28. Remedies. Upon the
occurrence and during the continuance of an Event of Default, Landlord may
exercise all rights and remedies under this Master Lease and the laws of the
state(s) where the Premises are located that are available to a lessor of
real and personal property in the event of a default by its lessee. Landlord
shall have no duty to mitigate damages unless required by applicable law and
shall not be responsible or liable for any failure to relet any of the Premises
or to collect any rent due upon any such reletting. Tenant shall pay Landlord,
immediately upon demand, all expenses incurred by it in obtaining possession
and reletting any of the Premises, including reasonable fees, commissions and
costs of attorneys, architects, agents and brokers.


 


D-16

















 


28.1 General. Without
limiting the foregoing, Landlord shall have the right (but not the obligation)
to do any of the following upon and during the continuance of an Event of
Default: (a) sue for the
specific performance of any covenant of Tenant as to which it is in breach; (b) enter upon any portion of the
Premises, terminate this Master Lease, dispossess Tenant from the Premises, by
any available legal process, and/or collect money damages by reason of Tenant’s
breach, including the acceleration of (i) all
Minimum Rent and Additional Rent which would have accrued after such
termination, discounted at an annual rate equal to the then-current U.S.
Treasury Note rate for the closest comparable term and taking into account any
obligation on behalf of Landlord to mitigate its damages to the extent required
by law, and (ii) all
obligations and liabilities of Tenant under this Master Lease which survive the
termination of the Term; (c) elect
to leave this Master Lease in place and sue for Rent and other money damages as
the same come due; and (d) (before
or after repossession of the Premises pursuant to clause (b) above and
whether or not this Master Lease has been terminated) relet any portion of the
Premises to such tenant(s), for such term(s) (which may be greater or less
than the remaining balance of the Term), rent, conditions (which may include
concessions or free rent) and uses as it may determine in its sole discretion
and collect and receive any rents payable by reason of such reletting.


 


28.2 Remedies
Cumulative; No Waiver. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing at law or in
equity. Any notice or cure period provided herein shall run concurrently with
any provided by applicable law. No failure of Landlord to insist at any time
upon the strict performance of any provision of this Master Lease or to
exercise any option, right, power or remedy contained herein shall be construed
as a waiver, modification or relinquishment thereof as to any similar or
different breach (future or otherwise) by Tenant. Landlord’s receipt of any
rent or other sum due hereunder (including any late charge) with knowledge of
any breach shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision of this Master Lease shall be effective unless
expressed in a writing signed by it.


 


28.3 Performance
of Tenant’s Obligations. If Tenant at any time
shall fail to make any payment or perform any act on its part required to be
made or performed under this Master Lease, then Landlord may, without waiving
or releasing Tenant from any obligations or default hereunder, make such
payment or perform such act for the account and at the expense of Tenant, and
enter upon any portion of the Premises for the purpose of taking all such
action as may be reasonably necessary. No such entry shall be deemed an
eviction of Tenant. All sums so paid by Landlord and all necessary and
incidental costs and expenses (including reasonable attorneys’ fees and
expenses) incurred in connection with the performance of any such act by it,
together with interest at the Agreed Rate from the date of the making of such
payment or the incurring of such costs and expenses, shall be payable by Tenant
to Landlord upon Landlord’s written demand therefor.


 


28.4 Limited
Remedy Event of Defaults. Notwithstanding anything
to the contrary herein contained, or any other provisions of this Master Lease
or any other concurrent transaction document, if Landlord is exercising
remedies due solely to the Events of Default described in clauses (c), (d), (e),
(f) or (i) of Section 12 (“Limited
Remedy Events of Default”),


 


D-17

















 


the aggregate amount Tenant
shall be required to pay to Landlord from and after the date of the occurrence
of such Limited Remedy Event of Default (the “Occurrence
Date”) shall be limited to the sum of (i) (A) 89.9% of the fair market value of the
Premises as of the commencement date less (B) the sum of the present value
as of the Effective Date (using an annual discount rate equal to fifteen and
65/100 percent (15.65%)) of all Minimum Rent and Additional Rent received as of
the Occurrence Date, (ii) any
amounts of Taxes and Other Charges which are due and payable or have accrued
under this Master Lease through the Occurrence Date, and (iii) any amounts of Taxes and Other
Charges which are due and payable or have accrued under this Master Lease after
the Occurrence Date while or so long as the Tenant remains in possession of the
Premises after any Limited Remedy Event of Default that relates to insurance,
utilities, repairs, maintenance, environmental maintenance, remediation and
compliance and other customary costs and expenses of operating and maintaining
the Premises in substantial compliance with the terms of this Master Lease.


 


29. Provisions
on Termination.


 


29.1 Surrender
of Possession. On the expiration of the Term or earlier
termination or cancellation of this Master Lease (the “Termination Date”), Tenant shall deliver
to Landlord or its designee possession of (a) the
Premises (or portion thereof if the expiration, termination, or cancellation of
this Master Lease is not with respect to the entire Premises) in broom clean
condition and in as good a condition as existed at the date of their possession
and occupancy pursuant to this Master Lease, except as repaired, replaced,
rebuilt, restored, altered or added to as permitted or required by the
provisions of this Master Lease, ordinary wear and tear, casualty and
condemnation excepted, (b) all
subtenant leases and security deposits, all documentation related to the
subtenants (including financials and past correspondence) and copies of all
Tenant’s books and records relating solely to the Premises, and (c) plans, specifications, drawings or
similar materials in connection with the applicable Facility or Facilities.


 


29.2 Removal
of Tenant Personal Property. Provided that no Event of
Default then exists, in connection with the surrender of the Premises, Tenant
may remove from the Premises in a workmanlike manner all Tenant Personal
Property, leaving the Premises in good and presentable condition and
appearance, including repair of any damage caused by such removal. Title to any
Tenant Personal Property which is not removed by Tenant as permitted above upon
the expiration of the Term shall, at Landlord’s election, vest in Landlord;
provided, however, that Landlord may remove and store or dispose at Tenant’s
expense any or all of such Tenant Personal Property which is not so removed by
Tenant without obligation or accounting to Tenant.


 


29.3 Holding
Over. If Tenant shall for any reason remain in
possession of any portion of the Premises after the Termination Date, such
possession shall be a month-to-month tenancy during which time Tenant shall pay
as rental on the first (1st)
Business Day of each month one
and one-half (11⁄2 ) times the total of the monthly Minimum Rent
payable with respect to the last Lease Year plus
Additional Rent allocable to the month, all additional charges
accruing during the month and all other sums, if any, payable by Tenant
pursuant to this Master Lease. Nothing contained herein shall constitute the
consent, express or implied, of Landlord to


 


D-18














 


the holding over of Tenant
after the Termination Date, nor shall anything contained herein be deemed to
limit Landlord’s remedies.


 


29.4 Survival.  All covenants, indemnities and other
obligations of Tenant under this Master Lease which arise on or prior to the
Termination Date or which specifically survive the expiration or termination by
their own terms shall survive the Termination Date.


 


30. Certain
Landlord Rights.


 


30.1 Entry
and Examination of Records. Landlord and its
representatives may enter any portion of the Premises at any reasonable time
upon not less than twenty-four (24) hours written notice to Tenant (which
notice may be transmitted in the form of electronic mail or other similar
electronic means) to inspect the Premises for compliance with this Master
Lease, to exhibit the Premises for sale, lease or mortgaging, or for any other
reasonable purpose; provided that no such notice shall be required in the event
of an emergency, upon and during the continuance of an Event of Default or to
post notices of non-responsibility under any mechanic’s or materialman’s lien
law. No such entry shall unreasonably interfere with Tenant or any subtenants
in a Facility or the business operated thereon. During normal business hours
(and upon reasonable notice), Tenant will permit Landlord and its
representatives (coordinated through Landlord) to examine and make abstracts
from any of Tenant’s books and records (other than materials protected by the
attorney-client privilege and materials which such person may not disclose
without violation of a confidentiality obligation binding upon it); provided
that, so long as no Event of Default has occurred and is continuing, Landlord
shall not be entitled to exercise the foregoing rights more than once, in the
aggregate, in any calendar year.


 


30.2 Grant
Liens. Any Lien or other encumbrance now existing and
securing any borrowing or other means of financing or refinancing or otherwise
shall provide for the recognition of this Master Lease and all Tenant’s rights
hereunder. Subject to the foregoing sentence and Sections 7.3 and 23,
without the consent of Tenant, Landlord may from time to time, directly or
indirectly, create or otherwise cause to exist any Lien, title retention
agreement or other encumbrance upon the Premises, or any portion thereof or
interest therein (including this Master Lease), whether to secure any borrowing
or other means of financing or refinancing or otherwise. Upon the request of
Landlord, Tenant shall subordinate this Master Lease to the Lien of any such
encumbrance so long as (a) such
encumbrance provides that it is subject to the rights of Tenant under this
Master Lease and that so long as no Event of Default shall exist beyond any
applicable cure period, Tenant’s occupancy shall not be disturbed if any Person
takes possession of the applicable portion of the Premises through foreclosure
proceedings or otherwise and (b) is
otherwise in form and substance reasonably acceptable to Tenant.


 


30.3 Estoppel
Certificates. At any time upon not less than ten (10) days prior written request
by either Landlord or Tenant (the “Requesting
Party”) to the other party (the “Responding
Party”), the Responding Party shall have an authorized
representative execute, acknowledge and deliver to the Requesting Party or its
designee a written statement certifying (a) that
this Master Lease, together with any specified modifications, is in full force
and effect, (b) the dates to
which Rent and additional charges have been paid, (c) that no default currently exists on the part of the
Responding Party, and to the Responding Party’s actual knowledge, on


 


D-19

















 


the part of the Requesting
Party or specifying any such default and (d) as
to such other matters as the Requesting Party may reasonably request.


 


30.4 Conveyance
Release. If Landlord or any successor owner shall transfer
any portion of the Premises in accordance with this Master Lease, they shall
thereupon be released from all future liabilities and obligations hereunder
arising or accruing from and after the date of such conveyance or other
transfer, which instead shall thereupon be binding upon the new owner.


 


31. Assignment
and Subletting.


 


31.1 No
Assignment or Subletting. Without the prior written
consent of Landlord, which may be withheld or conditioned at its sole
discretion, this Master Lease shall not, nor shall any interest of Tenant
herein, be assigned or encumbered by operation of law, nor shall Tenant
voluntarily or involuntarily assign, mortgage, encumber or hypothecate any
interest in this Master Lease or sublet any portion of the Premises. Any
foregoing acts without such consent shall be void and shall, at Landlord’s sole
option, constitute an Event of Default giving rise to Landlord’s right, among
other things, to terminate this Master Lease. An assignment of this Master
Lease by Tenant shall be deemed to include: (a) entering
into a management or similar agreement relating to the operation or control of
any portion of the Premises with a Person that is not an Affiliate of Tenant;
or (b) any change (voluntary
or involuntary, by operation of law or otherwise, including the transfer,
assignment, sale, hypothecation or other disposition of any equity interest in
Tenant) in the Person that ultimately exert effective Control over the
management of the affairs of Tenant or Guarantor as of the date hereof;
provided that an initial public offering of Tenant or Guarantor shall not be
deemed to be an assignment of the Master Lease so long as thereafter less than twenty-five percent (25%) of the voting
stock of Tenant or Guarantor, as applicable, is held by any Person or related
group that did not have such ownership before the initial public offering.


 


31.2 Permitted
Assignments and Sublets.


 


(a) Notwithstanding
Section 16.1 above, Tenant may, without Landlord’s prior written
consent, assign this Master Lease or sublet the Premises or any portion thereof
to an Affiliate of Tenant or any Guarantor if all of the following are first
satisfied: (i) such Affiliate
fully assumes Tenant’s obligations hereunder; (ii) Tenant
remains fully liable hereunder and any Guarantor remains fully liable under its
guaranty; (iii) the use of
the applicable portion of the Premises shall comply with Section 7.1.
above; (iv) Landlord shall be
provided the proposed form and content of all documents for such assignment or
sublease on or before the date that is twenty (20) days prior to such
assignment or sublease, and (v) Landlord
shall be provided executed copies of all such documents within fifteen (15)
Business Days after such assignment or sublease.


 


(b) Notwithstanding
Section 16.1 above, Landlord’s consent shall not be required for
any assignment of this Master Lease or change of Control of Tenant or Guarantor
if the consolidated net worth of the successor Tenant (in the case of an
assignment) or Tenant (in the case of a change of Control of Tenant), as
applicable (such entity “Resulting Tenant”)
or, successor Guarantor (in the case of an assignment) or Guarantor (in the
case of a change of


 


D-20

















 


Control of Guarantor), as
applicable (such entity, “Resulting Guarantor”)
immediately after the effectiveness of the assignment or change of Control is
equal to or greater than Three Hundred Million Dollars ($300,000,000) (such
assignment or change of Control, a “Strong
Tenant/Guarantor Transfer”), and each of the following conditions is
met: (i) Resulting Tenant
and/or Resulting Guarantor, or the officers, directors or managers thereof or
of the Person that controls Resulting Tenant or Resulting Guarantor, as
applicable, has sufficient operating experience and history with respect to the
Business of the Facilities as had Tenant or Guarantor, as applicable (or the
officers, directors or managers thereof or of the Person that controls Tenant
or Guarantor) immediately prior to the Strong Tenant/Guarantor Transfer, or has
retained a management company with such expertise to manage the Facilities; (ii) after a Strong Tenant/Guarantor
Transfer, the Resulting Tenant and/or Resulting Guarantor, if different than
the Tenant or Guarantor immediately prior to such Strong Tenant/Guarantor
Transfer, shall assume all of the obligations of Tenant under the Lease and
Guarantor under the Guaranty accruing subsequent to the effective date of such
Strong Tenant/Guarantor Transfer by a written instrument in form and substance
reasonably satisfactory to Landlord (the “Lease/Guaranty
Assumption”); and (iii) no
Event of Default shall have occurred and be continuing hereunder. A Person shall
be deemed to have “sufficient operating
experience and history” if, immediately prior to the Strong
Tenant/Guarantor Transfer, such Person (together with its Affiliates and/or
officers, directors and managers) (x) operated
or managed (whether directly or through its operating subsidiary(ies)) at least
twelve (12) facilities engaged in the Business of the Facilities (or the number
of such facilities operated and/or managed by Guarantor, whichever is less) and
(y) has been in the business
of operating or managing such facilities for at least three (3) years (or for such period
as Guarantor has been in such business, whichever is less). Upon delivery of
the Lease/Guaranty Assumption, Landlord shall release Tenant from any liability
under the Lease and Guarantor from any liability under the Guaranty first
accruing from and after the effective date of such Strong Tenant/Guarantor
Transfer.


 


(c) Notwithstanding
Section 16.1 above, Tenant may, (i) without
Landlord’s prior written consent, sublet portions of a Facility in the ordinary
course of Tenant’s business to subtenants of such Facility for customary uses
ancillary to Tenant’s permitted use including, pharmacy, physical therapy, and
sundry providers, and (ii) subject
to Landlord’s prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, sublet all or any portion of the Premises, in
each case using a form of sublease reasonably approved by Landlord.


 


(d) Notwithstanding
Section 16.1 above and subject to Tenant’s obligations pursuant to Section 9.2,
Tenant shall have the right from time to time during the Term hereof and
without Landlord’s further approval, written or otherwise, to grant and assign
a security interest in Tenant’s interest in all Tenant Personal Property or
other property of Tenant that is not a part of the Premises to Tenant’s
lenders. In addition, Tenant may grant and assign a mortgage or other security
interest in Tenant’s interest in this Master Lease to Tenant’s lenders in
connection with Tenant’s financing of Tenant’s interest in this Master Lease
provided that: (i) Tenant
pays all reasonable costs, expenses and charges of Landlord incident to the
granting of any such mortgage or other security interest, including Landlord’s
reasonable attorneys’ fees and expenses and (ii) Landlord
has approved, in its reasonable discretion, the form of leasehold mortgage
pursuant to which Tenant is granting a leasehold mortgage or other security
interest in this Master Lease.


 


D-21

















 


(e) Tenant hereby
acknowledges that an assignment, subleasing or other transfer of the Premises
or a portion thereof under this Section 16 will cause Landlord to
incur administrative and other expenses not contemplated under this Master
Lease. Accordingly, prior to or concurrently with an assignment, sublease or
other transfer of the Premises or a portion thereof pursuant to Section 16.1
or Sections 16.2, Tenant shall reimburse Landlord for any and all
reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees) incurred by Landlord in connection with such assignment,
sublease, or other similar transfer.


 


(f) In no event
shall Tenant sublet any portion of the Premises on any basis such that the
rental to be paid by the sublessee would be based, in whole or in part, on
either the income or profits derived by the business activities of the
sublessee, or any other formula, such that any portion of the sublease rental
received by Landlord would fail to qualify as “rents from real property” within
the meaning of Section 856(d) of the U.S. Internal Revenue Code, or
any similar or successor provision thereto.


 


32. Damage
by Fire or Other Casualty. Tenant shall promptly
notify Landlord of any material damage or destruction of any portion of the
Premises and diligently repair or reconstruct such portion of the Premises in a
good and workman like manner to a like or better condition than existed prior
to such damage or destruction in accordance with Section 8.4. So
long as no Event of Default exists, any award of insurance proceeds up to and
including One Hundred Thousand Dollars ($100,000) shall be paid directly to
Tenant. In the event that any award of net insurance proceeds payable with
respect to the casualty are in excess of One Hundred Thousand Dollars
($100,000), such insurance proceeds (i) shall
be paid directly to Landlord and (ii) if
no Event of Default exists, shall be made available to Tenant for the repair or
reconstruction of the applicable portion of the Premises subject to the
following disbursement requirements:


 


(a) prior to
commencement of restoration, the architects, contracts, contractors, plans and
specifications, payment and performance bond from the general contractor for
the work and a budget for the restoration shall have been approved by Landlord,
which approval shall not be unreasonably withheld, delayed, or conditioned;


 


(b) Tenant shall
possess such additional funds which Landlord reasonably determines are needed
to pay all costs of the repair or restoration and such Tenant funds shall be
made available by Tenant as required to pay for the costs of the restoration;


 


(c) at the time of
any disbursement, except as permitted pursuant to Section 5.1, no
mechanics’ or materialmen’s liens shall have been filed against any of the
Premises and remain undischarged;


 


(d) disbursements
shall be made from time to time (within reasonable time frames to perform and
complete the restoration, but not more frequently than monthly) in an amount
not exceeding the cost of the restoration completed since the last
disbursement, upon receipt of (i) satisfactory
evidence, including architects’ certificates, of the stage of completion, the
estimated total cost of completion and performance of the restoration to date
in a good and workmanlike manner in accordance with all material respects with
the contracts, plans and


 


D-22

















 


specifications, (ii) waivers of liens, and (iii) contractors’ and subcontractors’
sworn statements as to completed work and the cost thereof for which payment is
requested; and


 


(e) each request
for disbursement shall be accompanied by a certificate of Tenant, signed by an
officer of Tenant, describing the restoration for which payment is requested,
stating the cost incurred in connection therewith, stating that Tenant has not
previously received payment for such restoration and, upon completion of the
restoration, also stating that the restoration has been fully completed and
complies with the applicable requirements of this Master Lease.


 


If such proceeds are
insufficient, Tenant shall provide the required additional funds; if such
proceeds are more than sufficient, the surplus shall belong and be paid to
Tenant upon completion of the restoration in accordance with the requirements
of this Master Lease. Tenant shall not have any right under this Master Lease,
and hereby waives all rights under applicable law, to abate, reduce or offset
rent by reason of any damage or destruction of any portion of the Premises of
any amount by reason of an insured or uninsured casualty.


 


If at any time during the
last two (2) years of the Term, fire or other casualty shall render the
whole or any portion of a Facility untenable and such Facility (or any portion
thereof) cannot reasonably be expected to be repaired within two hundred
seventy (270) days from the date of such event, then Tenant, by notice in
writing to Landlord within ninety (90) days from the date of such damage or
destruction, may terminate this Master Lease with respect to such Facility
effective upon a date within thirty (30) days from the date of such notice in
which event (i) the insurance
proceeds payable with respect to the casualty to such Facility (except to the
extent related to Tenant Personal Property) shall be paid to Landlord, and (ii) this Master Lease shall be deemed
terminated as to such Facility and Minimum Rent and Additional Rent due
hereunder shall be reduced by the product of (x) the
amount of the then current Minimum Rent and Additional Rent, and (y) a fraction, the numerator of which
is the portion of Landlord’s Investment allocated to such Facility and the
denominator of which is Landlord’s Investment.


 


33. Condemnation. Except as
provided to the contrary in this Section 18, this Master Lease
shall not terminate and shall remain in full force and effect in the event of a
taking or condemnation of the Premises, or any portion thereof, and Tenant
hereby waives all rights under applicable law to abate, reduce or offset Rent
by reason of such taking. If during the Term all or substantially all (a “Complete Taking”)
or a smaller portion (a “Partial Taking”) of any Facility
is taken or condemned by any competent public or quasi-public authority, then (a) in the case of a Complete Taking,
Tenant may at its election made within thirty
(30) days of the effective date of such Taking, terminate this
Master Lease with respect to such Facility and the current Rent shall be
equitably abated as of the effective date of such termination, or (b) in the case of a Partial Taking,
the Rent shall be abated to the same extent as the resulting diminution in Fair
Market Value of the applicable portion of the Premises. The resulting
diminution in Fair Market Value on the effective date of a Partial Taking shall
be as established pursuant to Exhibit C. In the event this Master
Lease is terminated as to any Facility under this Section 18, then
the Minimum Rent and Additional Rent due hereunder shall be reduced by the
product of (i) the amount of
the then current Minimum Rent and Additional Rent, and (ii) a fraction, the numerator of
which is the portion of Landlord’s Investment allocated to such Facility and
the denominator of which is Landlord’s Investment. Landlord alone shall be
entitled to receive and


 


D-23

















 


retain any award for a
taking or condemnation other than a temporary taking; provided, however.
Tenant shall be entitled to submit its own claim in the event of any such
taking or condemnation with respect to the value of (u) Tenant’s leasehold interest in any portion of the
Premises, (v) the relocation
costs incurred by Tenant as a result thereof, (w) Tenant
Personal Property, (x) other
tangible property, (y) moving
expenses, and/or (z) loss of
business, if available. In the event of a temporary taking of less than all or
substantially all of the Premises, Tenant shall be entitled to receive and
retain any and all awards for the temporary taking and the Minimum Rent and
Additional Rent due under this Master Lease shall be not be abated
during the period of such temporary taking.


 


34. Indemnification. Tenant agrees
to protect, indemnify, defend and save harmless Landlord, its directors,
officers, shareholders, agents and employees (each an “Indemnitee”) from and against any and all
foreseeable or unforeseeable liability, expense, loss, cost, deficiency, fine,
penalty or damage (including punitive but excluding consequential damages) of
any kind or nature, including reasonable attorneys’ fees, from any suits,
claims or demands, on account of any matter or thing, action or failure to act
arising out of or in connection with (unless caused by an Indemnitee) this
Master Lease, the Premises or the operations of Tenant on any portion of the
Premises, including (a) the
breach by Tenant of any of its representations, warranties, covenants or other
obligations hereunder, (b) any
Protest, and (c) all known
and unknown Environmental Activities on any portion of the Premises, Hazardous
Materials Claims or violations by Tenant of a Hazardous Materials Law with
respect to any portion of the Premises, except to the extent such Environmental
Activities, Hazardous Materials Claims or violations arise out of any negligent
or willful act or omission of Landlord or its affiliates, employees or agents.
Upon receiving knowledge of any suit, claim or demand asserted by a third party
that Landlord believes is covered by this indemnity, it shall promptly give
Tenant written notice of such matter. If Landlord does not elect to defend the
matter with its own counsel at Tenant’s expense, Tenant shall then defend
Landlord at Tenant’s expense (including Landlord’s reasonable attorneys’ fees
and costs) with legal counsel reasonably satisfactory to Landlord and Tenant’s
insurer. The obligations of Tenant under this Section 19 shall
survive any termination, expiration, or rejection in bankruptcy of this Master
Lease, but only with respect to matters that arose, occurred, or existed prior
to such termination, expiration, or rejection.


 


35. Disputes. If any party
brings any action to interpret or enforce this Master Lease, or for damages for
any alleged breach, the prevailing party shall be entitled to reasonable
attorneys’ fees and costs as awarded by the court in addition to all other
recovery, damages and costs. EACH PARTY
HEREBY WAIVES ANY RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER IN CONNECTION WITH ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MASTER LEASE, INCLUDING
RELATIONSHIP OF THE PARTIES, TENANT’S USE AND OCCUPANCY OF ANY PORTION OF THE
PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE RELATING TO THE FOREGOING OR THE
ENFORCEMENT OF ANY REMEDY.


 


36. Notices. All notices
and demands, certificates, requests, consents, approvals and other similar
instruments under this Master Lease shall be in writing and sent by personal
delivery, U. S. certified or registered mail (return receipt requested, postage
prepaid) or FedEx or


 


D-24

















 


similar generally recognized
overnight carrier regularly providing proof of delivery, addressed as follows:


 


	
  If to Tenant:

  	
   

  
	
   

  	
   

  
	
  c/o
  Radiation Therapy Services, Inc.

  	
  Nationwide Health
  Properties, Inc.

  
	
  2234
  Colonial Boulevard

  	
  610 Newport Center Drive,
  Suite 1150

  
	
  Fort
  Myers, Florida 33907

  	
  Newport Beach, California
  92660

  
	
  Attn:
  David Watson

  	
  Attn: President and CFO

  
	
  Facsimile:
  (239) 931-7380

  	
  Facsimile: (949) 759-6887

  
	
   

  	
   

  
	
  With a copy to:

  	
  With a
  copy to:

  
	
   

  	
   

  
	
  Kirkland &
  Ellis LLP

  	
  Sherry Meyerhoff
  Hanson & Crance LLP

  
	
  200
  East Randolph Drive

  	
  610 Newport Center Drive,
  Suite 1200

  
	
  Chicago, Illinois
  60601

  	
  Newport Beach, California
  92660

  
	
  Attn:
  John G. Caruso, Esq.

  	
  Attn: Kevin
  Sherry, Esq.

  
	
  Facsimile:
  (312) 861-2200

  	
  Facsimile: (949) 719-1212

  



 


A party may designate a
different address by notice as provided above. Any notice or other instrument
so delivered (whether accepted or refused) shall be deemed to have been given
and received on the date of delivery established by U.S. Post Office return
receipt or the carrier’s proof of delivery or, if not so delivered, upon its
receipt. Delivery to any officer, general partner or principal of a party shall
be deemed delivery to such party. Notice to any one co-Tenant shall be deemed
notice to all co-Tenants.


 


37. Miscellaneous. Since each party
has been represented by counsel and this Master Lease has been freely and
fairly negotiated, all provisions shall be interpreted according to their fair
meaning and shall not be strictly construed against any party. While nothing
contained in this Master Lease should be deemed or construed to constitute an
extension of credit by Landlord to Tenant, if a portion of any payment made to
Landlord is deemed to violate any applicable laws regarding usury, such portion
shall be held by Landlord to pay the future obligations of Tenant as such
obligations arise and if Tenant discharges and performs all obligations
hereunder, such funds will be reimbursed (without interest) to Tenant on the
Termination Date. If any part of this Master Lease shall be determined to be
invalid or unenforceable, the remainder shall nevertheless continue in full
force and effect. Time is of the essence, and whenever action must be taken
(including the giving of notice or the delivery of documents) hereunder during
a certain period of time or by a particular date that ends or occurs on a
Saturday, Sunday or federal


 


D-25

















 


holiday, then such period or
date shall be extended until the immediately following Business Day. Whenever
the words “including”, “include” or “includes” are used in this Master Lease,
they shall be interpreted in a non-exclusive manner as though the words “without
limitation” immediately followed. Whenever the words day or days are used in
this Master Lease, they shall mean “calendar day” or “calendar days” unless
expressly provided to the contrary. The titles and headings in this Master
Lease are for convenience of reference only and shall not in any way affect the
meaning or construction of any provision. Unless otherwise expressly provided,
references to any “Section” mean a section of this Master Lease (including all
subsections), to any “Exhibit” or “Schedule” mean an exhibit or schedule
attached hereto or to “Medicare” or “Medicaid” mean such programs and shall
include any successor program. If more than one Person is Tenant hereunder,
their liability and obligations hereunder shall be joint and several. Promptly
upon the request of either party and at its expense, the parties shall prepare,
enter into and record a suitable short form memorandum of this Master Lease.
This Master Lease (a) contains
the entire agreement of the parties as to the subject matter hereof and
supersedes all prior or contemporaneous verbal or written agreements or
understandings, (b) may be
executed in one or more facsimile or electronic counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
document, (c) may only be
amended by a writing executed by the parties, (d) shall
inure to the benefit of and be binding upon the successors and permitted
assigns of the parties, (e) shall
be governed by and construed and enforced in accordance with the internal laws
of the State of California, without regard to the conflict of laws rules thereof,
provided that the law of the State in which each Facility is located (each a “Situs State”)  shall govern procedures for enforcing, in
the respective Situs State, provisional and other remedies directly related to
such Facility and related personal property as may be required pursuant to the
law of such Situs State, including without limitation the appointment of a
receiver; and, further provided that the law of the Situs State also applies to
the extent, but only to the extent, necessary to create, perfect and foreclose
the security interests and liens created under this Master Lease, and (f) incorporates by this reference any
Exhibits and Schedules attached hereto.


 


38. Right
of First Refusal.


 


(a) During the Term
and subject to the terms and conditions and except as otherwise expressly
provided in this Section 23, Tenant shall have a right of first
refusal to purchase all of the Subject Facilities (as defined below) that are
the subject of a Third Party Offer (as defined below). Within five (5) Business
Days of Landlord’s decision to accept a Third Party Offer (or its acceptance of
such offer subject to the right of first refusal granted herein) Landlord shall
deliver to Tenant a written notice (the “Offer
Notice”) (i) stating
that Landlord is prepared to accept (or has already accepted subject to the
right of first refusal granted herein) the applicable Third Party Offer, (ii) identifying the Subject
Facilities, and (iii) describing
the material terms and conditions (including purchase price and earnest money
deposit) under which the third party proposes to purchase the Subject
Facilities.


 


(b) As used herein,
the following terms shall have the following meanings:


 


(1) “Third Party Offer” shall mean a written offer,
proposal, letter of intent or similar instrument setting forth the material
terms and conditions under which a third party


 


D-26

















 


which is not an Affiliate of
Landlord proposes to enter into a purchase of all or a portion of the Premises.


 


(2) “Subject Facilities” shall mean that
portion of the Premises (or those Facilities) that are the subject of the
purchase proposal contained in the Third Party Offer.


 


(c) Tenant shall
have fifteen (15) Business Days from its receipt of an Offer Notice to elect to
purchase the Subject Facilities by delivery of written notice of such election
to Landlord (the “Purchase Notice”).
For the avoidance of doubt, Tenant may only elect to purchase all of the
Subject Facilities and may not elect to purchase some but not all of the Subject
Facilities.


 


(d) Landlord and
Tenant shall have a period of thirty (30) days from Landlord’s receipt of the
Purchase Notice (the “Purchase Agreement
Period”) to negotiate in good faith a purchase and sale agreement
and related documentation necessary to complete the disposition of the Subject
Facilities (the “Purchase Documentation”).
The Purchase Documentation shall contain the purchase price, earnest money
deposit, and other material terms and conditions contained in the Third Party
Offer. In the event Landlord and Tenant enter into the Purchase Documentation
within the Purchase Agreement Period, then the transaction that is the subject
of such Purchase Documentation shall be consummated within thirty (30) days of
the execution thereof (the “Closing Date”).


 


(e) In the event
that (i) Tenant does not
timely provide the Purchase Notice, (ii) Landlord
and Tenant are unable to agree upon the Purchase Documentation within the
Purchase Agreement Period, or (iii) following
execution of the Purchase Documentation, the transaction that is the subject
thereof is not consummated on or before the Closing Date as a result of a
default by Tenant in its obligations under the Purchase Documentation, then
Landlord shall be free to sell the Subject Facilities to the third party who
submitted the Third Party Offer on terms not materially more favorable to the
acquiring party than are set forth in the applicable Third Party Offer. If such
sale is not consummated within one hundred eighty (180) days following the
Purchase Agreement Period, or if at any time Landlord agrees with such third
party to modify the terms of the proposed transaction in a manner materially
more favorable to the third party, Tenant’s right of first refusal as granted
herein shall be reinstituted and Landlord shall give Tenant prompt written
notice of the same.


 


(f) Notwithstanding
anything in this Section 23 which may be construed or interpreted
to the contrary, the terms of this Section 23 (including the right
of first refusal granted herein) shall not apply to any of the following: (i) any sale, transfer, or other
disposition of the Premises or any portion thereof to any Affiliate, parent, or
subsidiary of Landlord or to a joint venture entity, relationship, partnership
or similar business arrangement in which Landlord or any of Landlord’s
Affiliates is the managing member or general partner and holds at least a
twenty-five percent (25%) equity ownership interest, (ii) to any merger, business combination, or similar
transaction involving all or substantially all of the assets of Landlord and
its Affiliates, or (iii) any
judicial or non-judicial foreclosure sale or deed in lieu of foreclosure
pursuant to any mortgage or deed of trust now or hereafter encumbering the
Premises or any portion thereof in favor of an unaffiliated third party


 


D-27

















 


(g) In the event
Tenant purchases the Subject Facilities pursuant to this Section 23,
this Master Lease shall terminate as to the Subject Facilities and the Minimum
Rent and Additional Rent due hereunder shall be reduced by the product of (i) the amount of the then current
Minimum Rent and Additional Rent, and (ii) a
fraction, the numerator of which is the portion of Landlord’s Investment
allocable to the Subject Facilities and the denominator of which is Landlord’s
Investment.


 


39.
Economic Substitution.


 


39.1 Provided that
no Event of Default exists on the Option Exercise Date or the Closing Date,
Tenant may offer to purchase an Option Premises (as defined herein) by giving
Landlord written notice thereof (the “Exercise
Notice”) at least sixty (60) days, but not more than one hundred
eighty (180) days, prior to the desired closing date (the date on which such
notice is delivered being the “Option
Exercise Date”) provided that (a) Tenant
provides Landlord with substitute Replacement Premises in accordance with the
requirements set forth below and (b) the
substitution of the Replacement Premises for the Option Premises does not
result in a decrease in the Rent Coverage Ratio from the Rent Coverage Ratio
existing as of the Exercise Date. Landlord may accept or reject such offer to
purchase an Option Premises at Landlord’s sole and absolute discretion. As used
herein, “Option Premises” shall
mean the Facility or Facilities identified as the portion of the Premises that
Tenant elects to be designated as the Option Premises in the Exercise Notice; provided,
however, in no event shall Tenant be entitled to (i) include any Facility in the Option
Premises unless Landlord has owned such Facility for a period of the greater of
(x) two (2) years or (y) the currently recognized “safe-harbor” holding
period for Real Estate Investment Trusts under the rules and regulations
relating to “prohibited transactions” or “dealer sales” under the Internal
Revenue Code of 1986, as amended, and (ii) designate
more than five (5) Facilities as Option Premises during the Term. As used
herein, “Replacement Premises” shall
mean a healthcare facility or facilities, of comparable or superior type, use,
and quality to the Option Premises, and, subject to customary due diligence and
property investigations by Landlord, reasonably acceptable to Landlord to be
added to the Premises demised under this Master Lease in place of the Option
Premises, as of the date of closing. As used herein, “Rent Coverage Ratio” means, as of the date of determination,
the ratio of (A) the
Portfolio EBITDARM for the immediately preceding six calendar months, minus (I) an
assumed management fee equal to five percent (5%) of the gross revenues
generated during such six month period, and (II) one-twelfth
(1/12) of the CapEx Amount multiplied by the aggregate rentable square footage
of the Facilities on the calculation date and further multiplied by the number
of months in the period of determination, to (B) the
total amount of the Minimum Rent and Additional Rent due for such six month
period pursuant to the terms of this Master Lease. As used herein, “Portfolio EBITDARM” means, for any period
of determination, the aggregate net income (or loss) of Tenant for such period
to the extent derived from the collective operation of the Premises, adjusted
to add thereto, to the extent allocable to the Premises, without duplication,
any amounts deducted in determining such net income (or loss) for (a) interest expense, (b) income tax expense, (c) depreciation and amortization
expense, (d) rental expense,
and (e) management fee
expense, in each case determined in conformity with generally accepted
accounting principles, consistently applied. With respect to any Replacement
Premises that has been operating for less than twelve (12) months as of the
Option Exercise Date, Portfolio EBITDARM shall be calculated using a
commercially reasonable estimate of the net income (or loss) of Tenant for such
Replacement Premises during the first year of operations.


 


D-28














 


Such commercially reasonable
estimate of net income (or loss) shall be based on documentation that is
reasonably satisfactory to Landlord and shall be calculated utilizing
accounting and forecasting principles consistently applied and reasonably
satisfactory to Landlord. Notwithstanding anything herein which may be
interpreted to the contrary, Tenant shall be responsible for all costs and
expenses incurred by Landlord or Tenant in connection with the transfer of the
Option Premises to Tenant and the transfer of the Replacement Premises to
Landlord, including, without limitation, all reasonable costs and expenses
incurred by Landlord in connection with its due diligence investigation of the
Replacement Premises (including reasonable attorneys’ fees), documentary
transfer taxes, any title insurance premiums pursuant to Section 24.2(d) below
and any and all recording and escrow fees.


 


39.2 In connection
with the transfer and conveyance of the Replacement Premises from Tenant to
Landlord, the following provisions shall apply. Any capitalized terms used in
this Section 24.2 and not otherwise defined shall have the meanings
given such terms in that certain Purchase and Sale Agreement between Landlord
and Tenant (or its Affiliate) dated as of September 30, 2008 (the “Purchase Agreement”):


 


(a) The closing of
the transfer of the Replacement Premises from Tenant to Landlord shall be
consummated through an escrow established with the Title Company.


 


(b) Landlord’s
obligation to accept the Replacement Premises pursuant to this Section 24
shall be conditioned upon (i) the
satisfaction of those conditions precedent contained in Sections 5.1(a) and
(b) of the Purchase Agreement, together with any additional commercially
reasonable conditions precedent reasonably requested by Landlord, (ii) Tenant providing to Landlord, on
or before the Substitution Closing Date, a certificate (in a form reasonably
acceptable to Landlord) representing and warranting to Landlord that the
representations and warranties contained in Sections 7.1(a) through (g) of
the Purchase Agreement, together with any other commercially reasonable
representations and warranties reasonably requested by Landlord, are accurate
with respect to the Replacement Premises as of the Substitution Closing Date,
and (iii) Landlord and Tenant
delivering to Title Company any additional documents, information, or
instruments reasonably necessary to accomplish the transfer of the Replacement
Premises to Landlord and the transfer of the Option Premises to Tenant.


 


(c) On a date mutually
acceptable to Landlord and Tenant following the satisfaction of the conditions
contained in Section 24.1 above (the “Substitution Closing Date”), Tenant shall convey, at no cost
to Landlord, good and marketable title to the Replacement Premises pursuant to
a deed in a form reasonably acceptable to Landlord. Tenant shall deliver said
deed to the Title Company on the Business Day prior to the Substitution Closing
Date.


 


(d) Concurrently
with the transfer and conveyance of the Replacement Premises to Landlord by
Tenant, at Tenant’s sole cost and expense the Title Company shall be committed
to issue an ALTA Extended Coverage Policy of Title Insurance in favor of
Landlord with respect to the Replacement Premises showing only those exceptions
approved in writing by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed, and which exceptions shall include the lien
of any then non-delinquent taxes and assessments.


 


D-29

















 


(e) There shall be
no proration of income or expenses related to the Replacement Premises.


 


39.3 In connection
with the conveyance of the Option Premises from Landlord to Tenant, the
following provisions shall apply:


 


(a) The closing of
the transfer of the Option Premises from Landlord to Tenant shall be
consummated through an escrow established with the Title Company and shall
occur concurrently with the transfer to Landlord of the Replacement Premises.


 


(b) Landlord shall
convey title to the Option Premises pursuant to the form of deed mutually
acceptable to Landlord and Tenant and in an “as is” condition without
representation or warranty, but free and clear of all liens except Permitted
Exceptions. Landlord shall deliver said deed to the Title Company on the Business
Day prior to the Substitution Closing Date.


 


(c) There shall be
no proration of income or expenses related to the Option Premises.


 


39.4 Landlord and
Tenant hereby acknowledge that either party may consummate the transfer of the
Replacement Premises to Landlord and the Option Premises to Tenant as part of a
so-called like kind exchange pursuant to section 1031 of the Internal Revenue
Code of 1986, as amended, and each party agrees to cooperate with the other
party to accomplish such an exchange, even if such an exchange may result in
the Substitution Closing Date being delayed for up to thirty (30) days as a
result of such an exchange. Notwithstanding the foregoing, the party desiring
such an exchange shall pay any additional costs that would not otherwise have
been incurred by Landlord or Tenant had such party not consummated the transfer
through such an exchange. Neither party shall by this agreement or acquiescence
to such an exchange desired by the other party (i) have its rights under this Section 24
affected or diminished in any manner except as otherwise agreed to herein or (ii) be responsible for compliance
with or be deemed to have warranted to the other party that such party’s
exchange in fact complies with section 1031 of the Internal Revenue Code of
1986, as amended.


 


39.5 During the
Term and subject to the limitations set forth herein, if one or more of the
Facilities becomes uneconomical or unsuitable for continued use in Tenant’s
business, Tenant may, with respect to not more than two (2) uneconomical
Facilities, seek to terminate the Master Lease with respect to such
uneconomical Facility or Facilities (such facility being herein called the “EAP”) in accordance with the conditions
and limitations of this Section 24.5.


 


(a) From time to
time during the Term and provided no Event of Default has occurred and is
continuing, if Tenant shall determine in good faith and deliver to Landlord a
certificate signed by the president or chief financial officer of Tenant
certifying that (i) continued
use and occupancy by Tenant in Tenant’s business at such EAP is no longer
consistent with either the business operation or business strategy of Tenant,
and (ii) Tenant has
determined to abandon the use at such EAP, then Tenant may give Landlord not
less than ninety (90) calendar


 


D-30

















 


days prior written notice
(the “EAP Notice”) that Tenant
intends to arrange a sale of the EAP (“EAP
Sale”) in accordance with the provisions of this Section 24.5.


 


(b) In the case of
an EAP Sale, Tenant must arrange the sale of the EAP on behalf of Landlord on
terms and conditions reasonably acceptable to Landlord, which terms and
conditions shall include, without limitation, the following: (i) a purchase price not less than the
Replacement Value for such EAP, which purchase price shall be payable in
immediately available funds at the closing of the EAP Sale, and (ii) the EAP Sale shall be on an “as
is”, “where is”, “with all faults” basis without any representation or warranty
whatsoever on the part of Landlord. As used herein, “Replacement Value” shall be an amount equal to the greater
of: (1) the then Fair Market
Value, as determined pursuant to Exhibit C, of the EAP, or (2) Landlord’s Investment in the EAP
(minus any net award paid to Landlord for a  taking
pursuant to Section 18). Prior to the closing of the EAP Sale,
Tenant shall deliver to Landlord a covenant and undertaking (“EAP Undertaking”) in a form reasonably
acceptable to Landlord pursuant to which Tenant (w) represents and warrants that Tenant is permanently
abandoning such EAP, (x) covenants
to vacate such EAP prior to the closing of the EAP Sale, (y) covenants not to operate another
radiation treatment center (or whatever the then permitted use of the EAP is at
the time of the EAP Notice) within five (5) miles of such EAP (four (4) miles
with respect to the Facility located in Cape Coral, Florida) for two (2) years
from the date of the EAP Sale, and (z) acknowledges
and agrees that a breach or violation of such EAP Undertaking shall be an
immediate Event of Default under this Master Lease. Upon the sale of the EAP,
this Master Lease shall be deemed terminated as to such EAP and Minimum Rent
and Additional Rent due hereunder shall be reduced by the product of (1) the amount of the then current
Minimum Rent and Additional Rent, and (2) a
fraction, the numerator of which is the portion of Landlord’s Investment
allocable to such EAP and the denominator of which is Landlord’s Investment. If
Landlord elects not to accept an EAP Sale and provided that Tenant has
otherwise complied with all the provisions of this Section 24.5,
the Master Lease with respect to such EAP shall be deemed terminated and
Minimum Rent and Additional Rent due hereunder shall be reduced by the product
of (A) the amount of the then
current Minimum Rent and Additional Rent and (B) a
fraction, the numerator of which is the portion of Landlord’s Investment
allocable to such EAP and the denominator of which is Landlord’s Investment.


 


(c) Notwithstanding
anything else in this Master Lease to the contrary, during the Term, Tenant
shall only be permitted to cause an EAP Sale or cause the termination of the
Master Lease for up to two (2) Facilities. At any time during which there
are two (2) Facilities closed pursuant to the provisions of Section 7.1(c),
Tenant shall not have the right to cause an EAP Sale or cause the termination
of this Master Lease unless (i) the
Facility that Tenant seeks to designate as an EAP is one of the two Facilities
then closed pursuant to Section 7.1(c) or (ii) Tenant continues to operate such
Facility until the closing of the EAP Sale.


 


(d) Tenant shall
pay all charges incident to any transaction pursuant to this Section 24.5,
including Landlord’s attorneys’ fees and expenses together with all prepayment
fees and expenses solely with respect to the applicable Facility, including
attorneys’ fees and expenses due a mortgagee, arising out of such transaction.


 


40. Tax
Treatment; Reporting. Landlord and Tenant each
acknowledge that each shall treat this transaction as a true lease for state
law purposes and shall report this transaction as


 


D-31

















 


a lease for Federal income
tax purposes. For Federal income tax purposes each shall report this Master Lease
as a true lease with Landlord as the owner of the Premises and Tenant as the
lessee of such Premises including: (1) treating Landlord as the owner of
the property eligible to claim depreciation deductions under Section 167
or 168 of the Internal Revenue Code of 1986 (the “Code”) with respect to the
Premises, (2) Tenant reporting its Rent payments as rent expense under Section 162
of the Code, and (3) Landlord reporting the Rent payments as rental
income. For the avoidance of doubt, nothing in this Master Lease shall be
deemed to constitute a guaranty, warranty or representation by either Landlord
or Tenant as to the actual treatment of this transaction for state law purposes
and for federal income tax purposes.


 


D-32

















 


IN WITNESS
WHEREOF, this Master Lease has been executed by Landlord and
Tenant as of the date first written above.


 


TENANT:


 


	
  21st
  CENTURY ONCOLOGY, INC.,

  a Florida corporation

  	
   

  	
  Signed, Sealed and Delivered

  
	
   

  	
   

  	
  in the presence of:

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
  Witness Signature

  
	
   

  	
   

  	
   

  
	
  MARYLAND
  RADIATION THERAPY

  	
   

  	
  Print Witness Name

  
	
  MANAGEMENT
  SERVICES, INC.,

  	
   

  	
   

  
	
  a Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
  Witness Signature

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
  Print Witness Name

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PHOENIX
  MANAGEMENT COMPANY, LLC,

  	
   

  	
   

  
	
  a Michigan limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AMERICAN
  CONSOLIDATED

  	
   

  	
   

  
	
  TECHNOLOGIES,
  L.L.C.,

  	
   

  	
   

  
	
  a Michigan limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


D-S-1

















 


LANDLORD:


 


	
   

  	
   

  	
  Signed, Sealed and Delivered

  
	
  NATIONWIDE
  HEALTH PROPERTIES, INC.,

  	
   

  	
  in the presence of:

  
	
  a Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
  Witness Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Witness Name

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Witness Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Witness Name

  
	
  THE
  GUARANTOR IS MADE A PARTY HERETO SOLELY AS TO ITS ACKNOWLEDGEMENTS AND
  OBLIGATIONS UNDER THE INTRODUCTORY PARAGRAPHS TO THIS MASTER LEASE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTOR:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  RADIATION
  THERAPY SERVICES, INC.,

  	
   

  	
   

  
	
  a Florida corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  Signed, Sealed and Delivered 

  
	
  Name:

  	
  David N.T. Watson

  	
   

  	
  in the presence of:

  
	
  Title:

  	
  Executive Vice President
  and

  	
   

  	
   

  
	
   

  	
  Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  	
  Witness Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Witness Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Witness Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PRINT
  WITNESS NAME

  



 


D-S-2

















 


EXHIBIT A TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


LEGAL DESCRIPTIONS


 


See
attached;


 


includes
all improvements thereon and all appurtenances thereto.


 


D-A-1

















 


EXHIBIT B TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


INTENTIONALLY OMITTED


 


D-B-1

















 


EXHIBIT C
TO EXHIBIT D OF PURCHASE AND SALE AGREEMENT


 


FAIR
MARKET VALUE


 


“Fair
Market Value” or “Fair Market
Rent” means the fair market value (or fair market rent, as
applicable) of the Premises or applicable portion thereof on a specified date
as agreed to by the parties, or failing such agreement within ten (10) days of such date, as
established pursuant the following appraisal process. Each party shall within ten (10) days after written demand by
the other select one MAI Appraiser to participate in the determination of Fair
Market Value or Fair Market Rent, as applicable. For all purposes under this
Master Lease, the Fair Market Value shall be the fair market value of the
Premises or applicable portion thereof unencumbered by this Master Lease.
Within ten (10) days of such
selection, the MAI Appraisers so selected by the parties shall select a third
(3rd) MAI
Appraiser. The three (3) selected MAI Appraisers shall each determine the
Fair Market Value (or, as applicable, Fair Market Rent) of the Premises or
applicable portion thereof within thirty (30) days of the selection of the
third appraiser. To the extent consistent with sound appraisal practices as
then existing at the time of any such appraisal, and if requested by Landlord,
such appraisal shall be made on a basis consistent with the basis on which the
Premises or applicable portion thereof were appraised at the time of their
acquisition by Landlord. Tenant shall pay the fees and expenses of any MAI
Appraiser retained pursuant to this Exhibit.


 


If either party fails to
select a MAI Appraiser within the time period set forth in the foregoing
paragraph, the MAI Appraiser selected by the other party shall alone determine
the fair market value (or, as applicable, fair market rent) of the Premises or
applicable portion thereof in accordance with the provisions of this Exhibit and
the Fair Market Value (or Fair Market Rent) so determined shall be binding upon
the parties. If the MAI Appraisers selected by the parties are unable to agree
upon a third (3rd) MAI Appraiser
within the time period set forth in the foregoing paragraph, either party shall
have the right to apply at Tenant’s expense to the presiding judge of the court
of original trial jurisdiction in the county in which the Premises or
applicable portion thereof are located to name the third (3rd) MAI Appraiser.


 


Within five(5) days after completion of the
third (3rd ) MAI Appraiser’s appraisal, all three (3) MAI
Appraisers shall meet and a majority of the MAI Appraisers shall attempt to
determine the fair market value (or, as applicable, fair market rent) of the
Premises or applicable portion thereof. If a majority are unable to determine
the fair market value (or fair market rent) at such meeting, the three (3) appraisals
shall be added together and their total divided by three (3). The resulting
quotient shall be the Fair Market Value (or, as applicable, Fair Market Rent).
If, however, either or both of the low appraisal or the high appraisal are more
than ten percent (10%) lower or
higher than the middle appraisal, any such lower or higher appraisal shall be
disregarded. If only one (1) appraisal is disregarded, the remaining two (2) appraisals
shall be added together and their total divided by two (2), and the resulting
quotient shall be such Fair Market Value (or, as applicable, Fair Market Rent).
If both the lower appraisal and higher appraisal are disregarded as provided
herein, the middle appraisal shall be such Fair Market Value (or Fair Market
Rent). In any event, the result of the foregoing appraisal process shall be
final and binding.


 


“MAI
Appraiser” shall mean an appraiser licensed or otherwise
qualified to do business in the state(s) where the Premises or applicable
portion thereof are located and who has substantial experience in performing
appraisals of facilities similar to the Premises or applicable portion thereof
and is certified as a member of the American Institute of Real Estate
Appraisers or certified as a SRPA by


 


D-C-1

















 


the Society of Real Estate
Appraisers, or, if such organizations no longer exist or certify appraisers,
such successor organization or such other organization as is approved by
Landlord.


 


D-C-2














 


EXHIBIT D TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


PERMITTED EXCEPTIONS


 


1.                          The standard
printed exceptions, conditions and exclusions from coverage contained in the
standard coverage owner’s title policy then prevailing in use at the title
company that consummates the sale transaction.


 


2.                          Any matters
which an accurate survey of the Premises may show.


 


3.                          Real property
taxes and assessments.


 


4.                          Any matters
shown as title exceptions in the ALTA Owner’s Policy of Title Insurance
obtained by Landlord in connection with its acquisition of the Premises.


 


5.                          Such other
matters burdening the Premises which were created with the consent or knowledge
of Tenant or arising out of Tenant’s acts or omissions.


 


D-D-1

















 


EXHIBIT E TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


CERTAIN DEFINITIONS


 


For purposes of this Master
Lease, the following terms and words shall have the specified meanings:


 


ENVIRONMENTAL
DEFINITIONS


 


“Environmental
Activities” shall mean the use, generation, transportation,
handling, discharge, production, treatment, storage, release or disposal of any
Hazardous Materials at any time to or from any portion of the Premises or
located on or present on or under any portion of the Premises.


 


“Hazardous Materials”
shall mean (a) any
petroleum products and/or by-products (including any fraction thereof),
flammable substances, explosives, radioactive materials, hazardous or toxic
wastes, substances or materials, known carcinogens or any other materials, contaminants
or pollutants as to which liability or standards of conduct are imposed under
Hazardous Materials Laws, which pose a hazard to any portion of the Premises or
to Persons on or about any portion of the Premises or cause any portion of the
Premises to be in violation of any Hazardous Materials Laws; (b) asbestos in any form which is
friable; (c) urea
formaldehyde in foam insulation or any other form; (d) transformers or other equipment which contain
dielectric fluid containing levels of poly chlorinated biphenyls in excess of
fifty (50) parts per million or any other more restrictive standard then
prevailing; (e) medical
wastes and biohazards; (f) radon
gas; and (g) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority because of its dangerous or deleterious
properties or characteristics or would pose a hazard to the health and safety
of the occupants of any portion of the Premises or the owners and/or occupants
of property adjacent to or surrounding any portion of the Premises, including,
without limitation, any materials or substances that are listed in the United
States Department of Transportation Hazardous Materials Table (49 CFR 172.101)
as amended from time to time.


 


“Hazardous
Materials Claims” shall mean any and all enforcement, clean-up,
removal or other governmental or regulatory actions, claims or orders
threatened, completed or instituted pursuant to any Hazardous Material Laws,
together with all claims made or threatened by any third party against any
portion of the Premises, Landlord or Tenant relating to damage, contribution,
cost recovery compensation, loss or injury resulting from any Hazardous
Materials.


 


“Hazardous
Materials Laws” shall mean any laws, ordinances, regulations, rules having
the force and effect of law, or orders relating to the environment, health and
safety, Environmental Activities, Hazardous Materials, air and water quality,
waste disposal and other environmental matters.


 


OTHER
DEFINITIONS


 


“Affiliate”
shall mean with respect to any Person, any other Person which Controls,
is Controlled by or is under common Control with the first Person.


 


“Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which national banks in the City of New York, New York, or in
the municipality wherein the Facility is located are closed.


 


“CC&R’s” shall mean
covenants, conditions and restrictions or similar use, maintenance or ownership
obligations encumbering or binding upon the real property comprising any
Facility.


 


D-E-1

















 


“Control” shall mean, as
applied to any Person, the possession, directly or indirectly, of the power to
direct the management and policies of that Person, whether through ownership,
voting control, by contract or otherwise.


 


“Debt to
Equity Ratio” shall mean the ratio of Total Liabilities to Net
Worth.


 


“Landlord’s
Investment” in the Premises means Forty-Two Million Eight
Hundred Nineteen Thousand Fifty-One and 44/100ths Dollars ($42,819,051.44).


 


“Medical
Waste” shall mean all medical waste as defined by California Health and Safety
Code § 117690, as amended or supplemented. If a Situs State has a comparable
statute that defines “medical waste”, Medical Waste for purposes of all
Facilities in such Situs State shall have the meaning set forth in such
statute.


 


“Net Worth”
means with respect to any Person, the amount by which such Person’s
Total Assets exceeds Total Liabilities.


 


“Person” shall mean any
individual, partnership, association, corporation, limited liability company or
other entity.


 


“Total
Assets” means all assets of a Person determined on a
consolidated basis in accordance with generally accepted accounting principles.


 


“Total
Liabilities” means all liabilities of a Person (excluding
deferred tax liability) determined on a consolidated basis in accordance with
generally accepted accounting principles.


 


D-E-2

















 


EXHIBIT F TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


FINANCIAL, MANAGEMENT AND REGULATORY REPORTS


 


Tenant shall keep adequate
records and books of account with respect to the finances and business of
Tenant generally and with respect to the Premises, in accordance with generally
accepted accounting principles (“GAAP”)
consistently applied.


 


During the Term, Tenant
shall deliver to Landlord, prior to one hundred twenty (120) days after the
close of each fiscal year of Radiation Therapy Services, Inc. or any
Resulting Guarantor (“Holdings”)
annual audited financial statements of Holdings, commencing with the fiscal
year including the date of commencement of the Term, certified by a nationally
recognized firm of independent certified public accountants. In addition,
Tenant shall also furnish to Landlord prior to sixty (60) days after the end of
each of the three remaining quarters, unaudited financial statements and all
other quarterly reports of Holdings, certified by Holdings’ chief financial
officer, and all filings, if any, of Form 10-K, Form 10-Q and other
required filings with the Securities and Exchange Commission pursuant to the
provisions of the Securities Exchange Act of 1934, as amended, or any other
law.


 


If, for whatever reason, the
financial results of Tenant do not appear, or are not included, in the
consolidated financial statements required to be provided to Landlord pursuant
to the foregoing paragraph, then Tenant shall also deliver to Landlord Tenant’s
financial statements meeting the same requirements and within the same
timeframes as required for Holdings pursuant to the foregoing paragraph.


 


All financial statements
shall be prepared in accordance with GAAP consistently applied. All annual
financial statements shall be accompanied (i) by an opinion of the
accounting firm preparing such statements stating that (A) there are no
qualifications as to the scope of the audit and (B) the audit was
performed in accordance with GAAP and (ii) by the affidavit of the
president or a vice president (or officer, director or manager of a similar position)
of Tenant, dated within five (5) days of the delivery of such statement,
stating that (C) the affiant knows of no Event of Default, or event which,
upon notice or the passage of time or both, would become an Event of Default
which has occurred and is continuing hereunder or, if any such event has
occurred and is continuing, specifying the nature and period of existence
thereof and what action Tenant has taken or proposes to take with respect
thereto and (D) except as otherwise specified in such affidavit, that to
affiant’s knowledge Tenant has fulfilled all of its obligations under this
Master Lease which are required to be fulfilled on or prior to the date of such
affidavit. All financial statements shall be sent via email to Landlord at
financials@nhp-reit.com.


 


On or before the date that
is forty-five (45) days after the end of each calendar quarter, Tenant shall
deliver to Landlord quarterly profit and loss reports concerning the Business
at each Facility and the combined Facilities in this Master Lease. Such reports
shall be in substantially the same form as delivered by Tenant to Landlord in
connection with Landlord’s acquisition of the Premises and shall contain a
level of detail reasonably satisfactory to Landlord. Such reports shall be sent
via email to Landlord at financials@nhp-reit.com.


 


Tenant shall furnish to
Landlord within ten (10) days of receipt written notice of any of the
following: (i) any material violation of any federal, state, or local
licensing or reimbursement certification statute or regulation, including
Medicare or Medicaid, (ii) any suspension, termination or restriction
placed on Tenant or any portion of the Premises or the operation of any portion
of the Business which would have a material adverse effect on the operation of
the Business at a Facility, and (iii) any material violation of any
permit, approval or certification in connection with any portion of the


 


D-F-1

















 


Premises or any portion of
the Business, by any federal, state, or local authority, including Medicare or
Medicaid, if applicable.


 


Tenant shall, on or before
the date that is sixty (60) days prior to the beginning of each fiscal year of
Holdings, provide Landlord with an annual operating budget covering the
operations of Holdings for the forthcoming fiscal year. If, for whatever
reason, the operating budget of Holdings would not include and cover the
operations of Tenant for the forthcoming fiscal year, then Tenant shall deliver
to Landlord, within sixty (60) days after the beginning of Tenant’s fiscal
year, an annual operating budget covering the operations of Tenant for such
fiscal year.


 


D-F-2

















 


EXHIBIT G TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


FORM OF LETTER OF CREDIT AGREEMENT


 


This LETTER OF CREDIT AGREEMENT (this “Agreement”) is dated as of
                                  ,
200  , by and between NATIONWIDE
HEALTH PROPERTIES, INC., a Maryland corporation (“Beneficiary”), and
                                                            ,  a
                                          
(“LC Party”).


 


RECITALS


 


A. The
Beneficiary, as landlord, and
                                        
(“Tenant”),  as tenant, have entered into that certain
Master Lease dated September 30, 2008 (the “Lease”) whereby Beneficiary has
leased to [Tenant/LC
Party] certain property as more particularly described therein. All
initially-capitalized terms used herein and not otherwise defined herein shall
have the same meanings given such terms in the Lease.


 


B. To secure
Tenant’s performance under the Lease, Radiation Therapy Services, Inc., a
Florida corporation (“Guarantor”),
has executed that certain Guaranty of Lease (the “Guaranty”) dated September 30, 2008 guarantying the full
performance by Tenant under the Lease.


 


C. LC Party is [DESCRIBE RELATIONSHIP TO TENANT AND GUARANTOR]. LC
Party derives direct and substantial benefit from the execution and delivery of
the Lease by Tenant and Beneficiary.


 


AGREEMENT


 


NOW,
THEREFORE, for valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:


 


1. Letter
of Credit.


 


(a) Form of Letter of Credit. Within three (3) Business
Days of the date hereof, LC Party shall cause [NAME
OF BANK] (“Issuer”) to issue an irrevocable letter of credit
substantially in the form of Exhibit A attached hereto (the “Letter of Credit”) naming Beneficiary, as
beneficiary. The Letter of Credit shall partially secure the performance by [Tenant/LC Party] under the Lease and the
performance by Guarantor under the Guaranty. As used herein, “Letters of Credit” and “Letter of Credit” shall include the Letter
of Credit and all Supplemental Letters of Credit (as hereinafter defined) and
Replacement Letters of Credit (as hereinafter defined).


 


(b) Letter of Credit Amount. The aggregate
amount of all issued and outstanding Letters of Credit shall, at all times
during the term hereof as provided in Section 5, be
                            
Dollars ($                  )
(the “Letter of Credit


 


D-G-1

















 


Amount”). Each Letter
of Credit shall be for a term of not less than twelve (12) months and shall
remain in effect for at least sixty (60) days after the date upon which the
Term (as defined in the Lease) expires, but subject to termination in
accordance with Section 4 of the Lease.


 


(c) Replacement Letter of Credit. The term “Reissuance Date” shall mean a date thirty
(30) days prior to the expiration date of the then issued and outstanding
Letter of Credit. If a letter of credit is then required pursuant to the Lease,
on or before each Reissuance Date, LC Party shall cause the Issuer to issue a
replacement of the then issued and outstanding Letter of Credit, which
replacement shall be in the form of Exhibit A hereto (the “Replacement Letter of Credit”).


 


(d) Supplemental Letter of Credit.  If all or any portion of any Letter of
Credit is drawn against by Beneficiary, LC Party shall, within two (2) Business
Days after demand by Beneficiary, order Issuer to issue to Beneficiary, at LC
Party’s expense, a replacement or supplementary Letter of Credit in the form of
Exhibit A hereto (a “Supplemental
Letter of Credit”) such that at all times during the term of this
Agreement that a letter of credit is required under the Lease, Beneficiary
shall have the ability to draw on one or more Letters of Credit totaling, in
the aggregate, the Letter of Credit Amount. If Issuer does not issue to
Beneficiary such Supplemental Letter of Credit within seven (7) days after
Beneficiary’s demand to LC Party, it shall be a default by LC Party under this
Agreement and an Event of Default under the Lease.


 


2. Beneficiary’s
Right to Draw.


 


(a) General. Beneficiary shall be
entitled to draw on each Letter of Credit one or more times for the purpose of
compensating Beneficiary for any amounts due to Beneficiary under the Lease by
reason of an Event of Default occurring under the Lease or a default by
Guarantor under the Guaranty. Any amount drawn by Beneficiary shall not be
deemed: (i) to fix or determine the amounts to which Beneficiary is
entitled to recover under the Lease, the Guaranty or otherwise; (ii) to
waive or cure any default under the Lease or the Guaranty; or (iii) to
limit or waive Beneficiary’s right to pursue any remedies provided for in the
Lease or the Guaranty.


 


(b) Replacement Letters of Credit. Upon the
issuance of a Replacement Letter of Credit, Beneficiary shall have the right to
draw solely on such Replacement Letter of Credit and Beneficiary shall have no
right to draw against the Letter of Credit which is replaced by such
Replacement Letter of Credit. If LC Party fails to cause the issuance of a
Replacement Letter of Credit by the Reissuance Date and a letter of credit is
required under the Lease, then Beneficiary shall, in addition to all other
rights and remedies available at law or equity, have the right to draw the full
amount of the then issued and outstanding Letters of Credit, which amount shall
be held as a cash security deposit under the Lease.


 


D-G-2

















 


(c) Supplemental Letters of Credit. If LC Party
fails to cause the issuance of any Supplemental Letter of Credit as required
pursuant to Section l(d) hereof, then Beneficiary shall, in
addition to all other rights and remedies available at law or equity, have the
right to draw the full amount of the then issued and outstanding Letters of
Credit, which amount shall be held as a cash security deposit under the Lease.


 


3. Replacement
of Issuer.


 


(a) Supplemental and Replacement Letters of Credit.  Supplemental Letters of Credit and
Replacement Letters of Credit shall be issued by a financial institution
acceptable to Beneficiary in the exercise of its reasonable discretion, provided,
however, Beneficiary shall have no obligation to approve any financial
institution which does not have net worth, as determined in accordance with
generally accepted accounting principles consistently applied, (“Net Worth”) in excess of Two Hundred Fifty
Million Dollars ($250,000,000.00) (“Issuer’s
Minimum Net Worth”). Any such replacement financial institution
shall be deemed to be the “Issuer” hereunder.


 


(b) Creditworthiness of Issuer.  In the event the Net Worth of Issuer is at
any time less than the Issuer’s Minimum Net Worth or if Issuer shall admit in
writing its inability to pay its debts generally as they become due, shall file
a petition in bankruptcy or a petition to take advantage of any insolvency
statute, shall consent to the appointment of a receiver or conservator of
itself or the whole or any substantial part of its property, shall file a
petition or answer seeking reorganization or arrangement under the Federal
Bankruptcy Laws, shall have a receiver or conservator appointed for it, or if,
in Beneficiary’s reasonable determination, Issuer is not sufficiently
creditworthy or shall become subject to operational supervision by any federal
or state regulatory authority, then within thirty (30) days after a written
demand by Beneficiary, LC Party shall obtain a Replacement Letter of Credit
from another financial institution meeting the criteria set forth in Section 3(a) hereof,
whereupon such replacement financial institution shall be deemed to be the “Issuer” under this Agreement.


 


D-G-3

















 


4. Successors
and Assigns.


 


(a) The rights of Beneficiary
under this Agreement and any outstanding Letter of Credit shall be transferable
and assignable to any assignee of, or successor in interest to, Beneficiary’s
rights under the Lease (including any assignment for security purposes of
Beneficiary’s rights under the Lease, this Agreement or any outstanding Letter
of Credit) and the term “Beneficiary” as
used herein shall refer to Nationwide Health Properties, Inc., and to each
successor and assign of all or any portion of its interest under the Lease. LC
Party and Issuer shall accept and agree to tender performance of their
obligations hereunder and under any outstanding Letter of Credit to any such
successor or assign of which LC Party and Issuer have been given written notice
of by Beneficiary.


 


(b) LC Party shall not have the
right to assign its rights or duties under this Agreement without the prior
written consent of Beneficiary, which consent may be granted or withheld in
Beneficiary’s sole discretion.


 


5. Termination
of Obligation to Provide Letters of Credit.  Except as otherwise set forth in the Lease, the obligation of
LC Party to cause the issuance of any Letters of Credit shall terminate on the
date which is sixty (60) days after the date upon which the Lease Term expires,
other than an expiration or termination of the Lease Term pursuant to an Event
of Default.


 


6. Attorneys’
Fees. If any party brings any action to interpret or
enforce this Agreement, or for damages for any alleged breach thereof, the
prevailing party in any such action shall be entitled to reasonable attorneys’
fees and costs as awarded by the court in addition to all other recovery,
damages and costs.


 


7.  Miscellaneous.  All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. The headings in this Agreement are for the
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement and all rights and duties of Tenant, LC Party
and Beneficiary, arising from or relating in any way to the subject matter of
this Agreement shall be governed by, construed and enforced in accordance with
the laws of the State of California, without regard to the conflict of law rules of
such State. This Agreement may be executed in separate counterparts, each of
which shall be considered as original when such party has executed and
delivered to the other one or more copies of this Agreement. The Recitals set
forth above are hereby incorporated by reference and made a part hereof. LC
Party represents and warrants that the Recitals are true and correct in all
material respects.


 


8. Notices.  All notices and demands, certificates,
requests, consents, approvals and other similar instruments under this
Agreement shall be in writing and sent by personal delivery, U. S. certified or
registered mail (return receipt requested, postage prepaid) or


 


D-G-4

















 


FedEx or similar generally
recognized overnight carrier regularly providing proof of delivery, addressed
as follows:


 


	
  If to L/C Party:

  	
   

  
	
   

  	
   

  
	
  c/o
  Radiation Therapy Services, Inc.

  	
  Nationwide Health
  Properties, Inc.

  
	
  2234
  Colonial Boulevard

  	
  610 Newport Center Drive,
  Suite 1150

  
	
  Fort
  Myers, Florida 33907

  	
  Newport Beach, California
  92660

  
	
  Attn:
  David Watson

  	
  Attn: President and CFO

  
	
  Facsimile:
  (239) 931-7380

  	
  Facsimile: (949) 759-6887

  
	
   

  	
   

  
	
  With a copy to:

  	
  With a
  copy to:

  
	
   

  	
   

  
	
  Kirkland &
  Ellis LLP

  	
  Sherry Meyerhoff
  Hanson & Crance LLP

  
	
  200
  East Randolph Drive

  	
  610 Newport Center Drive,
  Suite 1200

  
	
  Chicago, Illinois
  60601

  	
  Newport Beach, California
  92660

  
	
  Attn:
  John G. Caruso, Esq.

  	
  Attn: Kevin
  Sherry, Esq.

  
	
  Facsimile:
  (312) 861-2200

  	
  Facsimile: (949) 719-1212

  



 


A party may designate a
different address by notice as provided above. Any notice or other instrument
so delivered (whether accepted or refused) shall be deemed to have been given
and received on the date of delivery established by U.S. Post Office return
receipt or the carrier’s proof of delivery or, if not so delivered, upon its
receipt. Delivery to any officer, general partner or principal of a party shall
be deemed delivery to such party.


 


D-G-5














 


EXECUTED as of the date first set
forth above.


 


	
   

  	
   

  	
  “LC PARTY”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “BENEFICIARY”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NATIONWIDE
  HEALTH PROPERTIES,INC.,

  
	
   

  	
   

  	
  a Maryland corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
  ACCEPTED
  AND AGREED TO:

  	
   

  	
   

  
	
   

  	
   

  	
  “TENANT”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                                                                                           ,

  
	
   

  	
   

  	
  a

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “GUARANTOR”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Radiation
  Therapy Services,Inc.,

  
	
   

  	
   

  	
  a Florida corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
						



 


D-G-6

















 


EXHIBIT A to EXHIBIT G TO EXHIBIT D OF
PURCHASE AND SALE AGREEMENT


 


[NAME] BANK


 


IRREVOCABLE LETTER OF CREDIT
NO.                        


 


DATE:                            


 


EXPIRATION DATE:                                


 


Nationwide Health Properties, Inc.

610 Newport Center Drive, Suite 1150

Newport Beach, CA 92660


 


Ladies and Gentlemen:


 


We hereby establish our
Irrevocable Letter of Credit in your favor for the account of
                                                 
                
(“Customer”) available by your
draft(s) on us payable at sight in an amount not to exceed a total of
                                            
Dollars
($                    )
when accompanied by the following documents:


 


1. A certificate which on
its face appears to have been executed by an officer of Nationwide Health
Properties, Inc., a Maryland corporation (“Beneficiary”), stating the amount which Beneficiary is
drawing and that one or more of the following events has occurred: (i) an
Event of Default has occurred under the Master Lease dated September 30,
2008 between Beneficiary and
                                        
(the “Lease”); (ii) a default
under that certain Guaranty of Lease dated September 30, 2008, executed by
Radiation Therapy Services Inc., a Florida corporation for the benefit of
Beneficiary; or (iii) a default has occurred under that certain Letter of
Credit Agreement dated
                                ,
200    , by and between Customer and Beneficiary.


 


2. The original Letter of
Credit must accompany all drafts unless a partial draw is presented, in which
case the original must accompany final draft.


 


This Letter of Credit will
be duly honored by us at sight upon delivery of the statement set forth above
without inquiry as to the accuracy of such statement and regardless of whether
Customer disputes the content of such statement.


 


This Letter of Credit may be
transferred or assigned by Beneficiary to any successor or assign of
Beneficiary’s interests under the Lease or to any lender obtaining a lien or
security interest in the property covered by the Lease. Each draft hereunder by
any assignee or


 


D-G-7

















 


successor shall be
accompanied by a copy of the fully executed documents or judicial orders
evidencing such encumbrance, assignment or transfer.


 


Any draft drawn hereunder
shall be in the form attached hereto as Schedule 1. Partial drawings are
permitted with the amount of the Letter of Credit being reduced, without
amendment, by the amount(s) drawn hereunder.


 


This Letter of Credit shall
expire at 2:00 p.m.,
             time,
on the expiration date set forth above. Notwithstanding the foregoing, this Letter
of Credit shall be automatically extended for additional periods of one year
from the present or each future expiration date unless we have notified you in
writing, not less than sixty (60) days before any such expiration date, that we
elect not to renew this Letter of Credit. Our notice of any such election shall
be sent by express, registered or certified mail to the address shown above.


 


Except so far as otherwise
expressly stated, this Letter of Credit is subject to the “Uniform Customs and
Practices for Documentary Credits (2007 Revision), International Chamber
of Commerce Publication No. 600.” We hereby agree with you and all persons
negotiating such drafts that all drafts drawn and negotiated in compliance with
the terms of this Letter of Credit will be duly honored upon presentment and
delivery of the documents specified above by certified or registered mail to
                                                                                    ,
if negotiated on or before the expiration date shown above.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


D-G-8

















 


SCHEDULE 1
TO EXHIBIT A OF EXHIBIT G TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


SIGHT DRAFT


 


 


	
  TO: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PAY
  TO THE ORDER OF:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF
  BENEFICIARY]

  c/o [NAME OF BANK]

  [ADDRESS OF BANK]

  ABA No. [INSERT ABA NO.]

  for the benefit of [NAME OF
  BENEFICIARY]

  Account No. [INSERT ACCOUNT
  NO.]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  SUM OF:

  	
   

  
	
   

  	
                                                
  Dollars ($                        )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DRAWN
  ON:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Irrevocable
  Letter of Credit No.                     

  
	
   

  	
  dated
                            ,
  200       issued by

  
	
   

  	
                                            
  Bank

  
	
   

  	
   

  
	
   

  	
   

  	
  [BENEFICIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


D-G-9

















 


EXHIBIT H TO EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


INTENTIONALLY OMITTED


 


D-H-1














 


EXHIBIT I OF EXHIBIT D OF PURCHASE AND SALE
AGREEMENT


 


IMMEDIATE REPAIRS


 


	
  Facility

  	
   

  	
  Life 

  Safety/Fire 

  Protection

  	
   

  	
  Landscaping

  	
   

  	
  Paving/

  Curbing 

  Parking

  	
   

  	
  Roofing

  	
   

  	
  Stairs

  	
   

  	
  Exterior 

  Envelope

  	
   

  	
  Exterior 

  Envelope

  	
   

  	
  Total 

  Immediate

  Costs

  	
   

  	
  Description

  	
   

  
	
  Ft. Myers

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cape Coral

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Impact fire control panel and Alarm Systems

  	
   

  
	
  Naples

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Inspect sprinkler system, piping, and appurtenances

  	
   

  
	
  Pt. Charlotte

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Arcadia

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
  $

  	
  1,275

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  2,275

  	
   

  	
  Replace 15 concrete car stops; inspect and refurbish
  fire extinguishers

  	
   

  
	
  Sarasota

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Englewood

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Venice

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
  Inspect sprinkler system, piping, and appurtenances

  	
   

  
	
  Key West

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  800

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,800

  	
   

  	
  Inspect extinguishers, alarm panel, and
  appurtenances; repair cracked stairs

  	
   

  
	
  Berlin

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monroe

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,450

  	
   

  	
  $

  	
  413

  	
   

  	
  $

  	
  1,863

  	
   

  	
  Repair and replace metal face panels and metal
  siding.

  	
   

  
	
  Madison Heights

  	
   

  	
   

  	
   

  	
  $

  	
  1,500

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,500

  	
   

  	
  Repair damaged masonry block landscaping panels.

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  5,000

  	
   

  	
  $

  	
  1,500

  	
   

  	
  $

  	
  1,275

  	
   

  	
   

  	
   

  	
  $

  	
  800

  	
   

  	
  $

  	
  1,450

  	
   

  	
  $

  	
  413

  	
   

  	
  $

  	
  10,438

  	
   

  	
   

  	
   

  



 


D-I-1














 


SCHEDULE 1 TO EXHIBIT D OF PURCHASE AND SALE AGREEMENT


 


FACILITY INFORMATION: FACILITY NAME, ADDRESS,

RENTABLE SQUARE FOOTAGE, ETC.


 


	
  Facility Name

  	
   

  	
  Facility Address

  	
   

  	
  No. of Floors

  	
   

  	
  Total Rentable

  Square Footage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Arcadia,
  Florida

  	
   

  	
  920 N. Mills Avenue 

  Arcadia, Florida 34266

  	
   

  	
  1

  	
   

  	
  7,561

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Berlin,
  Maryland

  	
   

  	
  314 Franklin Avenue,
  Berlin 

  Maryland 21811

  	
   

  	
  1

  	
   

  	
  5,400

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cape
  Coral, Florida

  	
   

  	
  1419 SE 8th Terrace 

  Cape Coral, Florida 33990

  	
   

  	
  1

  	
   

  	
  12,231

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Englewood,
  Florida

  	
   

  	
  571 Medical Drive 

  Englewood, Florida 34223

  	
   

  	
  1

  	
   

  	
  7,800

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ft.
  Myers, Florida

  	
   

  	
  7341 Gladiolus Drive 

  Ft. Myers, Florida 33908

  	
   

  	
  1

  	
   

  	
  9,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Key
  West, Florida

  	
   

  	
  3426 North Roosevelt Road 

  Key West, Florida 33041

  	
   

  	
  2

  	
   

  	
  4,339

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madison
  Heights, Michigan

  	
   

  	
  30365 Dequindre Avenue 

  Madison Heights, Michigan 48071

  	
   

  	
  1

  	
   

  	
  7,344

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monroe,
  Michigan

  	
   

  	
  1085 North Macomb Street 

  Monroe, Michigan 48162

  	
   

  	
  1

  	
   

  	
  9,846

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Naples,
  Florida

  	
   

  	
  1885 SW Health Parkway 

  Naples, Florida 34109

  	
   

  	
  1

  	
   

  	
  7,653

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pt.
  Charlotte, Florida

  	
   

  	
  3185 Harbor Boulevard 

  Pt. Charlotte, Florida 33952

  	
   

  	
  1

  	
   

  	
  11,700

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sarasota,
  Florida

  	
   

  	
  3210 Fruitville Road 

  Sarasota, Florida 34237

  	
   

  	
  1

  	
   

  	
  10,535

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Venice,
  Florida

  	
   

  	
  959 East Venice Avenue 

  Venice, Florida 34292

  	
   

  	
  1

  	
   

  	
  9,621

  	
   

  



 


 


EXHIBIT D Schedule 1-1