Exhibit 10.46


 


FIRST
AMENDMENT TO LEASE


 


This FIRST AMENDMENT TO
LEASE dated December 31, 2009 (this “Amendment”), is by and between
THERIAC ENTERPRISES OF LITTLESTOWN, LLC (“Landlord”), and 21ST CENTURY ONCOLOGY OF PENNSYLVANIA, INC. (“Tenant”).


 


WITNESSETH:


 


WHEREAS, Landlord and Tenant
are parties to that certain Lease dated February 7, 2007 (the “Lease”),
for certain real property commonly known as 41 S. Columbus Avenue, Littlestown,
Pennsylvania; and


 


WHEREAS, Landlord and Tenant
desire to amend certain provisions of the Lease upon and subject to the terms
and conditions set forth herein.


 


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


 


1.                         Worker’s
Compensation. The second sentence of the second paragraph of Section 5.2
of the Lease is hereby deleted in its entirety and replaced with the following:


 


The liability insurance
policy (other than any policy of worker’s compensation insurance) shall name
Landlord, any person, firms or corporations designated by Landlord, and Tenant
as insured, and shall contain a clause that the insurer will not cancel or
change the insurance without first giving the Landlord twenty (20) days’ prior
notice.


 


2.                         Tenant’s
Leasehold Improvements and Trade Fixtures. Section 10.3 of the
Lease is hereby amended by:


 


(a)                     in the third
and fourth lines of the second paragraph, deleting the phrase “provided Tenant
shall not at such time be in default of any terms or covenants of this Lease,
and”; and


 


(b)                    in the fourth
line of the second paragraph, deleting the word “further.”


 


3.
                      Damage and
Destruction. The third paragraph of Section 15.1 of the
Lease is hereby deleted in its entirety and replaced with the following:


 


Tenant covenants and agrees
to (i) equip and furnish the Premises as Tenant reasonably deems necessary
to operate the business from the Premises and (ii) reopen for business in
the Premises within thirty (30) days after notice from Landlord that the
Premises are ready for re-occupancy.


 


4.
                      Defined Terms. Capitalized
terms used herein but not defined herein shall have the meanings ascribed to
them in the Lease.


 


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5.
                      Governing Law. This
Amendment and the Lease shall be governed by and construed in accordance with
the laws of the State of Florida.


 


6.
                      Amendment. Neither this
Amendment nor any terms hereof may be amended, supplemented or modified except
by a written instrument executed by the parties hereto. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.


 


7.
                      Full Force and
Effect. The Lease shall continue in full force and effect except as modified
by this Amendment, and the Lease is hereby ratified and confirmed by Landlord
and Tenant. In the event of a conflict between the terms and conditions of the
Lease and this Amendment, the terms of this Amendment shall prevail.


 


8.
                      Counterparts. This
Amendment may be executed in counterparts, each of which shall be an original,
but all of which shall constitute one and the same Amendment.


 


[Remainder of page intentionally left blank;

signatures on following page.]


 


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IN WITNESS WHEREOF, Landlord
and Tenant have caused this Amendment to be duly executed as of the day, month
and year first above written.


 


 


	
   

  	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  THERIAC ENTERPRISES OF
  LITTLESTOWN, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Name:

  	
  DANIEL E. DOSORETZ, MD

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  21ST CENTURY ONCOLOGY OF PENNSYLVANIA, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
   

  	
  Its:

  	
  EVP & CFO

  



 


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LEASE


 


THIS LEASE (“Lease”) is made
and entered into as of the 7th day of February, 2007, by and between, Theriac
Enterprises of Littlestown, LLC, whose business address is 2234 Colonial
Boulevard, Fort Myers, FL 33907 (“Landlord”), and 21st Century
Oncology of Pennsylvania, Inc. whose business address is 2234 Colonial
Boulevard, Fort Myers, FL 33907(“Tenant”).


 


WITNESSETH:


 


ARTICLE 1

TERMS


 


1.1                        Premises.
Landlord hereby demises and leases to Tenant and Tenant hereby hires and rents
from Landlord the premises located at 41 S Columbus Ave. Littlestown,
Pennsylvania,(“Premises”) upon the terms, covenants and conditions set forth
herein, which Premises has a floor area containing the approximate square
footage of 4,532 square feet.


 


1.2                        Use.
The Premises are to be used for a medical office and radiation therapy center.


 


1.3                        Commencement
of Term. The commencement of the Term of this Lease under which Tenant
shall be obligated to commence payment of Minimum Rent and Additional Rent
shall be on or about the 1st day of March, 2007 (“Commencement Date”).


 


1.4                        Length of
the Term. The term of this lease period is for ten (10) years (“Term”).
The starting date of this lease is the Commencement Date and, unless this Lease
is renewed in accordance with Article 4 below, the ending date is on or
about the 1st day of March, 2017 (“Expiration Date”).


 


ARTICLE 2

RENT


 


2.1                        Rent.
Minimum rent shall be eleven thousand Four Hundred Seven Dollars and Fifty
Cents ($11,407.50) per month (“Minimum Rent”). Tenant shall pay to Landlord
without previous demand thereof and without any abatement, reduction, setoff or
deduction whatsoever, the Minimum Rent (together with any applicable sales tax
and local taxes if the same are ever required by law), payable in equal monthly
installments, in advance, on the first day of each and every calendar month
throughout the Term of this Lease. The Minimum Rent shall commence to accrue on
the Commencement Date. The first such monthly installments of Minimum Rent
shall be due and payable to Landlord no later than the Commencement Date and each
subsequent monthly installment shall be due and payable to Landlord on the
first day of each and every month following the Commencement Date during the
Term hereof. If the Commencement Date is a date other than the first day of the
month, Minimum Rent and other charges for the period commencing with and
including the Commencement Date through the first day of the following month
shall be prorated at the rate of one-thirtieth (1/30) of the monthly Minimum
Rent per day.


 


In addition, Tenant shall
pay as Additional Rent monthly payments of applicable taxes, assessments and
insurance on the property. This amount will be of 1/12 of the bill for real
estate and assessment taxes and 1/12 of the bill on insurance. Estimated
figures for taxes and insurance monthly rate will be produced within ten (10) days
after the signing of this Lease. Each year


 

















 


Landlord will produce any
insurance, real estate tax and assessment bills to the Tenant to show how the
estimated taxes and insurance were computed as Additional Rent.


 


2.1.1                  There will be
an increase in the Minimum Rent starting on the first anniversary of the lease
if the Consumer Price Index increases. Minimum Rent specified in this lease
shall be subject to increase in accordance with changes in the Consumer Price
Index for Urban Wage Earners and Clerical Workers (CPI-W) as promulgated by the
Bureau of Labor Statistics of the United States Department of Labor, using the
year of the Commencement Date as a base of 100. On each anniversary date there
will be a rent adjustment based on the percentage increase in the Consumer
Price Index. If the Consumer Price Index goes down the rent will not change for
that year. Consumer Price Index increases will apply on the anniversary date of
each year of the Commencement Date. The percentage increase in the Consumer
Price Index will increase the minimum rent for that year.


 


2.1.2                  In the event
that the Consumer Price Index ceases to incorporate significant number of
items, or if a substantial change is made in the method of establishing such
Consumer Price Index shall be adjusted to the figure that would have resulted
had no change occurred in the manner of computing such Consumer Price Index, or
a successor or substitute index, is not available, a reliable governmental or
other nonpartisan publication, evaluating the information for use in
determining the Consumer Price Index, shall be used in lieu of such Consumer
Price Index.


 


2.2                            Late Charge.
Tenant shall pay to Landlord a late charge equal to five percent (5%) of the
monthly payment of Minimum Rent, Additional Rent and any other payment or
charge due hereunder if any such amount is received by Landlord more than five (5) days
after the same shall be due, such amount being the agreed upon liquidated
damages solely to defray the additional administrative expenses incurred by
Landlord in processing such payment.


 


2.3                            Interest on
Past Due Rent. If Tenant shall fail to pay, when the same is due and
payable, Minimum Rent, or Additional Rent, such unpaid amounts shall bear
interest from the due date thereof to the date of payment, at the prime
interest rate of the Chase Manhattan Bank, N.A. as of such due date, plus Five
percent (5%) (“Default Date”).


 


2.4                            Definition
of Rent. The term “Rent” shall refer collectively to Minimum Rent and
Additional Rent. The term “Additional Rent” is sometimes used herein to refer
to any and all other sums payable by Tenant hereunder, including, but not
limited to, parking charges and sums payable on account of default by Tenant.
All Rent shall be paid by Tenant without offset, demand or other credit, and
shall be payable only in lawful money of the United States of America which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment. All sums payable by Tenant hereunder by check shall be
obtained against a financial institution located in the United States of
America. The rent shall be paid by Tenant at
2234 Colonial Boulevard, Fort Myers, FL 33907.


 


2.5                            Rent Taxes.
In addition to Minimum Rent and Additional Rent, Tenant shall and hereby agrees
to pay to Landlord each month a sum equal to any sales tax, tax on rentals and
any other similar charges now existing or hereafter imposed, based upon the
privilege of leasing the space leased hereunder or based upon the amount of
rent collected therefore.


 

















 


ARTICLE 3

NET LEASE


 


3.1                        Net Lease.
This Lease shall be deemed and construed to be a triple net lease and, except
as herein otherwise expressly provided, the Landlord shall receive the fixed
Minimum Rent and Additional Rent and all other payments hereunder to be made by
the Tenant absolutely free from any charges, assessments, imposition, expenses
or deductions of any kind and every kind or nature whatsoever. Tenant is to pay
for all real estate tax and assessments on any and all taxes of any We of
nature. Tenant is to pay for all insurance and any and all costs for repairs,
replacements, maintenance and improvements. Tenant will also pay any and all
expenses for common areas, utilities, and association fees, if any. Tenant also
is responsible for:


 


3.1.1                                                 Parking lot
repairs, maintenance and replacements.


 


3.1.2                                                 Installation
of outside and inside lighting for parking.


 


3.1.3                                                             Any security,
pest control or contrasts for air conditioner and cleaning services, etc.


 


ARTICLE 4

OPTION TO RENEW


 


4.1                        Option to
renew. Provided that Tenant is not, and at no time has been, in default
during the Term under any of the covenants, terms, conditions, and provisions
of this Lease, then Tenant shall have three (3) options to renew this
Lease (each an “Option”) for consecutive five (5) year option periods,
provided that, in order to exercise this Option, Tenant is required to give to
Landlord written notice thereof not less than six (6) months before the
date of expiration of the Term of this Lease or during any option period. Any
renewal pursuant to this Option shall be on the same terms and conditions as
are contained in this Lease.


 


ARTICLE 5

INSURANCE AND INDEMNITY


 


5.1                        Liability
Insurance. Tenant shall, during the entire term hereof, keep in full force
and effect bodily injury and public liability insurance in an amount not less
than FIVE HUNDERED THOUSAND DOLLARS ($500,000) / ONE MILLION DOLLARS
($1,000,000) per injury and accident, respectively; property damage insurance
in an amount not less than ONE HUNDRED THOUSAND DOLLARS ($100,000).


 


5.2                        Workers
Compensation. Tenant shall, during the entire term hereof, keep in full
force worker’s compensation insurance in the maximum amount permitted under
California law.


 


Landlord may require such
insurance coverage to be increased after the first five years of the term of
this Lease, provided that such increase shall not cause the required limits of
coverage to exceed those then commonly prevailing in the marketplace for
similar situations. The policy(s) shall name Landlord, any person, firms
or corporations designated by Landlord, and Tenant as insured, and shall
contain a clause that the insurer will not cancel or change the insurance
without first giving the Landlord twenty (20) days prior notice. The insurance
shall be in an insurance company licensed by the State of California and a copy
of the policy or a certificate of insurance shall be delivered to Landlord
prior to the commencement of the term of


 

















 


this Lease. In no event
shall the limits of said insurance policies be considered as limiting the
liability of Tenant under this Lease. In the event that Tenant shall fail to
obtain or maintain in full force and effect any insurance coverage required to
be obtained by Tenant under this Lease, Landlord may procure same from
insurance carriers as Landlord may deem proper, irrespective that a lesser
premium for such insurance coverage may have been obtained from another
insurance carrier, and Tenant shall pay as additional rent, upon demand of
Landlord, any and all premiums, costs, charges and expenses incurred or
expended by Landlord in obtaining such insurance. Notwithstanding shall procure
insurance coverage required of Tenant hereunder, Landlord shall in no manner be
liable to Tenant for any insufficiency or failure of coverage with regard to
such insurance or any loss to Tenant occasioned thereby, and additionally, the
procurement of such insurance by Landlord shall not relieve Tenant of its
obligations under this Lease to maintain insurance coverage in the types and
amounts herein specified, and Tenant shall nevertheless hold Landlord harmless
from any loss or damage incurred or suffered by Landlord from Tenant’s failure
to maintain such insurance.


 


5.3                        Plate Glass
Insurance. The replacement of any plate glass damaged or broken from any
cause whatsoever in and about the Premises shall be Tenant’s responsibility.
Tenant shall, during the entire term hereof, keep in full force and effect a
policy of plate glass insurance covering all the plate glass of the Premises,
in amounts satisfactory to Landlord. The policy shall name Landlord as
additional insured and shall contain a clause that the insurer will not cancel
or change the insurance without first giving the Landlord twenty (20) days prior
notice. A copy of the policy together with the declarations page therefore
shall be delivered to Landlord prior to the commencement of the term of this
Lease.


 


5.4                        Increases
in Fire Insurance Premium. Tenant agrees that it will not keep, use or sell
in or upon the Premises any article, machinery or equipment which may be
prohibited by the standard form of fire and extended risk insurance policy.
Tenant agrees to pay any increase in premiums for fire and extended coverage
insurance that may be charged during the term of this Lease on the amount of
such insurance which may be carried by Landlord on the Premises or the building
of which it is a part, resulting from the type of merchandise, machinery or
equipment sold or kept by Tenant in the Premises or resulting from Tenant’s use
of the Premises, whether or not Landlord has consented to the same.


 


5.5                        Indemnification.
Tenant shall indemnify, defend and save Landlord harmless from and against any
and all claims, actions, damages, liability and expense in connection with loss
of life, personal injury and/or damage to or destruction of property arising
from or out of any occurrence in, upon or at the Premises, or any part thereof,
or the occupancy or use by Tenant of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, servants, lessees or concessionaires. Landlord shall indemnify,
defend and save Tenant harmless from and against any and all claims, actions,
damages, liability and expense in connection with loss of life, personal injury
and/or damage to or destruction of property arising from or out of any
occurrence in, upon or at the Premises occasioned in whole or in part by any
negligent act or omission by Landlord, its agents, contractors, employees,
servants or concessionaires. In case the indemnifying party shall be made a
party to any litigation commenced by or against the other party, then such
other party shall protect and hold the indemnified party harmless and pay all costs
and attorney’s fees incurred by the indemnified party in connection with such
litigation, and any appeals thereof. The defaulting party shall also pay all
costs, expenses and reasonable attorney’s fees that may be incurred or paid by
the other party in enforcing the covenants and agreements in this Lease.


 

















 


ARTICLE 6

UTILITIES


 


6.1                        Utilities.
Tenant shall be solely responsible for and shall promptly pay all charges for
water, gas, electricity, garbage, and any other utility used and consumed in
the Premises. In the event that such utilities charges, or any portion thereof
shall be separately metered for the Premises, tenant shall pay such meter
charges directly to the utility company supplying such service. In the event,
however, that such utilities charges, or any portion thereof, shall not be
separately metered for the Premises, tenant shall pay to Landlord its pro rata
share of such non-metered charges. If any such charges are not paid when due,
Landlord may, at its option pay the same, and any amount so paid by Landlord
shall thereupon become due to Landlord from tenant as additional rent. In no
event, however, shall Landlord be liable for an interruption or failure in the
supply of any such utilities to the Premises.


 


ARTICLE 7

SUBORDINATION AND ATTORNMENT


 


7.1                        Subordination.
Tenant hereby subordinates its rights hereunder to the lien of any ground or
underlying leases, any mortgage or mortgages, or the lien resulting from any
other method of financing or refinancing, now or hereafter in force against the
Premises and to all advances made or hereafter to be made upon the security
thereof. This Section shall be self- operative and no further instrument
of subordination shall be required by any mortgagee, but Tenant agrees upon
request of Landlord, from time to time, to promptly execute and deliver any and
all documents evidencing such subordination, and failure to do so shall
constitute a default under this Lease.


 


7.2                        Attornment.
In the event any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale under, any mortgage covering the
Premises or in the event a deed is given in lieu of foreclosure of any such
mortgage, Tenant shall attorn to the purchaser, or grantee in lieu of
foreclosure, upon any such foreclosure or sale and recognize such purchaser, or
grantee in lieu of foreclosure, as the Landlord under this Lease.


 


7.3                        Financing
Agreements. Tenant shall not enter into, execute or deliver any financing
agreement that can be considered as having priority to any mortgage or deed of
trust that Landlord may have placed upon the Premises.


 


ARTICLE 8

ASSIGNMENT AND SUBLETTING


 


Tenant may not assign this
lease in whole or in part, nor sublet all or any portion of the Premises,
without the prior written consent of Landlord in each instance. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. It is
understood that Landlord may refuse to grant consent to any assignment or
subletting by Tenant with or without cause and without stating in its refusal
to grant such consent the reasons for which it refuses to grant such consent
and may not, under any circumstances, be required or compelled to grant such
consent. No assignment, under letting, occupancy or collection shall be deemed
acceptance of the assignee, subtenant or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of the covenants on the part of
Tenant herein contained. This prohibition against any assignment or subleasing
by operation of law, legal process, receivership, bankruptcy or otherwise,
whether


 


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voluntary or involuntary and
a prohibition against any encumbrance of all and any part of Tenant’s leasehold
interest. Tenant shall remain fully liable on this Lease and shall not be
released from performing any of the terms, covenants and conditions hereof or
any rents or other sums to be paid hereunder. Tenant acknowledges and agrees
that any and all right and interest of the Landlord in and to the Premises, and
all right and interest of the Landlord in this Lease, may be conveyed, assigned
or encumbered at the sole discretion of the Landlord at any time.


 


ARTICLE 9

FACILITIES


 


9.1                        Control of
Common Areas by Landlord. All automobile parking areas, driveways,
entrances and exits thereto, and other facilities furnished by Landlord at or
near the Premises, including employee parking areas, the truck way or ways,
loading docks, package pick-up stations, pedestrian sidewalks and ramps,
landscaped areas, exterior stairways, and other areas and improvements provided
by Landlord for the general use, in common, of tenants, their officers, agents,
employees and customers, shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce reasonable rules and regulations with
respect to all facilities and areas mentioned in this Article. Landlord shall
have the right to construct, maintain and operate lighting facilities on all
said areas and improvements; from time to time to change the area, level,
location and arrangement of parking areas and other facilities hereinabove
referred to and to restrict parking by tenants, their officers, agents and
employees to employee parking areas. Landlord shall not have any duty to police
the traffic in the parking areas. Tenant is to maintain and repair parking and
at tenant’s expense.


 


ARTICLE 10

TENANT’S FIXTURES AND IMPROVEMENTS


 


10.1                  Alterations
by Tenant. Tenant shall not make any alterations, renovations, improvements
or other installations (collectively “Alterations”) in, on or to any part of
the Premises (including, without limitation, any alterations of the front,
signs, structural alterations, or any cutting or drilling into any part of the
Premises or any securing of any fixture, apparatus, or equipment of any kind to
any part of the Premises) unless and until Tenant shall have caused plans and
specifications therefore to have been prepared, at Tenant’s expense, by an
architect or other duly qualified person and shall have obtained Landlord’s
approval thereof. Tenant shall submit to Landlord detailed drawings and plans
of the proposed Alterations at the time Landlord’s approval is sought. If such
approval is granted, Tenant shall cause the work described in such plans and
specifications to be performed, at its expense, promptly, efficiently,
competently and in a good and workmanlike manner by duly qualified and licensed
persons or entities approved by Landlord, using first grade materials. All such
work shall comply with all applicable codes, rules, regulations and ordinances.
The Tenant shall at all times maintain fire insurance with extended coverage in
an amount adequate to cover the cost of replacement of all alterations,
decorations, additions or improvements to the Premises by Tenant in the event
of fire or extended coverage loss. Tenant shall deliver to the Landlord
certificates of such fire insurance policies, which shall contain a clause
requiring the insurer to give the Landlord ten (10) days notice of
cancellation of such policies.


 


10.2                  Mechanic’s
Liens. No work performed by Tenant pursuant to this Lease, whether in the
nature of erection, construction, alteration or repair, shall be deemed to be
for the


 

















 


immediate use and benefit of
Landlord so that no mechanic’s or other lien shall be allowed against the
estate of Landlord by reason of any consent given by Landlord to Tenant to
improve the Premises. Tenant shall place such contractual provisions as
Landlord may request in all contracts and subcontracts for Tenant’s
improvements assuring Landlord that no mechanic’s liens will be asserted
against Landlord’s interest in the Premises or the property of which the
Premises are a part. Said contracts and subcontracts shall provide, among other
things, the following: That notwithstanding anything in said contracts or
subcontracts to the contrary, Tenant’s contractors, subcontractors, suppliers
and materialmen (hereinafter collectively referred to as “Contractors”) will
perform the work and/or furnish the required materials on the sole credit of
Tenant; that no lien for labor or materials will be filed or claimed by the
Contractors against Landlord’s interest in the Premises or the property of
which the Premises are a part; that the Contractors will immediately discharge
any such lien filed by any of the Contractor’s suppliers, laborers, materialmen
or subcontractors; and that the Contractors will indemnify and save Landlord
harmless from any and all costs and expenses, including reasonable attorney’s
fees, suffered or incurred as a result of any such lien against Landlord’s
interest that may be filed or claimed in connection with or arising out of work
undertaken by the Contractors. Tenant shall pay promptly all persons furnishing
labor or materials with respect to any work performed by Tenant or its
Contractors on or about the Premises. If any mechanic’s or other liens shall at
any time be filed against the Premises or the property of which the Premises
are a part by reason of work, labor, services or materials performed of
furnished, or alleged to have been performed or furnished, to Tenant or to
anyone holding the Premises through or under Tenant, and regardless of whether
any such lien is asserted against the interest of Landlord or Tenant, Tenant
shall cause the same to be discharged of record or bonded to the satisfaction
of Landlord within thirty (30) days of notice of such lien. If Tenant shall
fail to cause such lien to be so discharged or bonded after being notified of
the filing thereof, then, in addition to being an Event of Default and any
other right or remedy of Landlord, Landlord may bond or discharge the same by
paying the amount claimed to be due, and the amount so paid by Landlord,
including reasonable attorneys’ fees incurred by Landlord either in defending
against such lien or in procuring the bonding or discharge of such lien,
together with interest thereon at the Default Rate, shall be due and payable by
Tenant to Landlord as Additional Rent.


 


10.3                  Tenant’s
Leasehold Improvements and Trade Fixtures. All leasehold improvements (as
distinguished from trade fixtures and apparatus) installed in the Premises at
any time, whether by or on behalf of Tenant or by or on behalf of Landlord,
shall not be removed from the Premises at any time, unless such removal is
consented to in advance by Landlord; and at the expiration of this Lease
(either on the Expiration Date or upon such earlier termination as provided in
this Lease), all such leasehold improvements shall be deemed to be part of the
Premises, shall not be removed by Tenant when it vacates the Premises, and
title thereto shall vest solely in Landlord without payment of any nature to
Tenant.


 


All trade fixtures and
apparatus (as distinguished from leasehold improvements) owned by Tenant and
installed in the Premises shall remain the property of Tenant and shall be
removable at any time, including upon the expiration of the Term; provided
Tenant shall not at such time be in default of any terms or covenants of this
Lease, and provided further, that Tenant shall repair any damage to the
Premises caused by the removal of said trade fixtures and apparatus and shall
restore the Premises to substantially the same condition as existed prior to
the installation of said trade fixtures and apparatus and shall restore the
Premises to substantially the same condition as existed prior to the
installation of said trade fixtures and apparatus.


 














 


ARTICLE 11

MAINTENANCE AND REPAIR OF PREMISES


 


11.1                  Maintenance
by Tenant. Tenant shall at all times keep in good order, condition and
repair (which shall include the providing of replacements where necessary) the
entire Premises, including, without limitation, the roof, the exterior and all
glass and show window moldings; and all partitions, doors, interior walls,
fixtures, equipment and appurtenances thereto, including lighting, heating and
plumbing fixtures and any air conditioning system and sprinkler system situated
within and/or servicing the Premises. Said maintenance by Tenant shall include,
without limitation, periodic painting as is reasonably necessary. All cutting
and patching of the roof area required for any reason whatsoever shall be performed
by the Landlord’s roofing subcontractor. In the event that Tenant causes such
work to be performed by anyone other than the Landlord’s roofing subcontractor,
Landlord will have the right, at Tenant’s sole cost and expense and without
notice to Tenant, to cause said work and the roof area affected thereby to be
inspected and/or repaired by Landlord’s roofing subcontractor. All repairs,
replacements, or maintenance of any item or any type of the Premises is the
responsibility of the Tenant and to be paid for by tenant.


 


ARTICLE 12

SIGNS


 


On or before the
Commencement Date, Tenant will at its sole cost and expense purchase and cause
to be installed upon the exterior of the Premises a sign which in all respects
conforms to the criteria established by Landlord. However, Tenant will not
install said sign without first obtaining Landlord’s written approval thereof.
Thereafter, Tenant will not place or suffer to be placed or maintain on any
portion of the exterior (including windows) of the Premises any sign, awning,
canopy or advertising matter or other thing of any kind, without first
obtaining Landlord’s written approval and consent. Without limitation as to the
foregoing, Landlord specifically reserves the right at any time during the term
of this Lease to require Tenant to remove from the Premises any sign(s) situated
thereon and to replace same with a sign or signs which in all respects conform
to a sign standard designated by Landlord, all of which will be performed at
Tenant’s sole cost and expense. Tenant agrees to maintain any such sign,
awning, canopy, decoration, lettering, advertising matter or other thing as may
be approved in good condition and repair at all times and to repaint or replace
such signs from time to time when reasonably necessary and to illuminate such
signs in accordance with standards established by Landlord from time to time,
including hours of illumination. All signs in addition must be conform to code
and local ordinances rules, laws and regulations.


 


ARTICLE 13

WASTE AND GOVERNMENTAL REGULATIONS


 


13.1                  Nuisance or
Waste. Tenant shall not commit or suffer to be committed any waste upon the
Premises or any nuisance or other act or thing which may disturb the quiet
enjoyment of any other tenant in the building in which the Premises may be
located.


 


8

















 


13.2                  Compliance
with Laws. Tenant, at its sole cost, will promptly comply with all
applicable laws, guidelines, rules, regulations and requirements, whether of
federal, state, or local origin, applicable to the Premises, including, but not
limited to, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and
those for the correction, prevention and abatement of nuisance, unsafe
conditions, or other grievances arising from or pertaining to the use or
occupancy of the Premises. Tenant at its sole cost and expense shall be solely
responsible for taking any and all measures which are required to comply with
the requirements of the ADA within the Premises. Any Alterations to the Premises
made by or on behalf of Tenant for the purpose of complying with the ADA or
which otherwise require compliance with the ADA shall be done in accordance
with this Lease; provided, that Landlord’s consent to such Alterations shall
not constitute either Landlord’s assumption, in whole or in part, of Tenant’s
responsibility for compliance with the ADA, or representation or confirmation
by Landlord that such Alterations comply with the provisions of the ADA.


 


13.3                  Governmental
Regulations. Tenant shall, at Tenant’s sole costs and expense, comply with
all regulations of all county, municipal, state, federal and other applicable
governmental authorities, not in force or which may hereafter be in force,
pertaining to Tenant or its use of the Premises, and shall faithfully observe
in the use of the Premises all municipal and county ordinances and state and
federal statutes now in force or which may hereinafter be in force. Tenant
shall indemnify, defend and save Landlord harmless from penalties, fines,
costs, expenses suits, claims, or damages resulting from Tenant’s failure to
perform its obligations in this Section.


 


13.4                  Rules and
Regulations. Landlord reserves the right from time to time to make
reasonable rules and regulations, governing loading of supplies, trash
collection, pest control, parking, noise, electrical overloads and similar
issues of general concern to all tenants in the event that the need therefore
should ever arise. Notice of such rules and regulations and amendments and
supplements thereto, if any, shall be given to the Tenant.


 


ARTICLE 14

HAZARDOUS MATERIALS


 


14.1                  Hazardous
Materials. Tenant shall not use or allow the Premises to be used for the
Release, storage, use, treatment, disposal or other handling of any Hazardous
Materials, without the prior consent of Landlord. The term “Release” shall have
the same meaning as is ascribed to it in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended,
(“CERCLA”). The term “Hazardous Materials” means (i) any substance defined
as a “hazardous substance” under CERCLA, (ii) petroleum, petroleum
products, natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas, and (iii) any other substance or material deemed to be
hazardous, dangerous, toxic, or a pollutant under any federal, state, or local
law, code, ordinance or regulation (“Hazardous Materials Laws”).


 


Tenant shall: (a) give
prior notice to Landlord of any activity or operation to be conducted by Tenant
at the Premises which involves the Release, use, handling, generation,
treatment, storage, or disposal of any Hazardous Materials (“Tenant’s Hazardous
Materials Activity”), (b) comply with all federal, state, and local laws,
codes, ordinances, regulations, permits and licensing conditions governing the
Release, discharge, emission, or disposal of any Hazardous Materials and
prescribing methods for or other limitations on storing, handling, or otherwise
managing Hazardous Materials, (c) at its own expense, promptly contain and


 

















 


remediate any Release of
Hazardous Materials arising from or related to Tenant’s Hazardous Materials
Activity in the Premises and remediate and pay for any resultant damage to
properly, persons, and/or the environment, (d) give prompt notice to
Landlord, and all appropriate regulatory, authorities, of any Release of any
Hazardous Materials in the Premises arising from or related to, Tenant’s
Hazardous Materials Activity, which Release is not made pursuant to and in
conformance with the terms of any permit or license duly issued by appropriate
governmental authorities, any such notice to include a description of “measures
taken or proposed to be taken by Tenant to contain and remediate the Release
and any resultant damage to property, persons, or the environment, (e) at
Landlord’s request, which shall not be more frequent than once per calendar
year, retain an independent engineer or other qualified consultant or, expert
acceptable to Landlord, to conduct, at Tenant’s expense, an environmental audit
of the Premises and immediate surrounding areas, and the scope of work to be
performed by such engineer, consultant, or expert shall be approved in advance
by Landlord, and all of the engineer’s, consultant’s or expert’s work product
shall be made available to Landlord, (f) at Landlord’s request from time
to time, executed affidavits, representations and the like concerning Tenant’s
best knowledge, and belief regarding the presence of Hazardous Materials in the
Premises, (g) reimburse to Landlord, upon demand, the reasonable cost of
any testing for the purpose of ascertaining if there has been any Release of
Hazardous Materials in the Premises, if such testing is required by any
governmental agency or Landlord’s Mortgagee, (h) upon expiration or
termination of this Lease, surrender the Premises to Landlord free from the
presence and contamination of any Hazardous Materials. Tenant shall indemnify,
protect, defend (by counsel reasonably acceptable to Landlord), and hold
Landlord and free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses and expenses (including attorneys’
fees) or death of or injury to any person or damage to any property whatsoever
arising from or caused in whole or in part, directly or indirectly, by the
presence in or about the Premises of any of Tenant’s Hazardous Materials
Activity or by Tenant’s failure to comply with any Hazardous Materials Law
regarding Tenant’s Hazardous Materials Activity or in connection with any
removal, remediation, clean up, restoration and materials required hereunder to
return the Premises and any other property of whatever nature to their
condition existing prior to Tenant’s Hazardous Materials Activity.


 


14.2                  Disclosure
Warning and Notice Obligations. Tenant shall comply with all laws,
ordinances and regulations in the State of Pennsylvania regarding the
disclosure of the presence or danger of Tenant’s Hazardous Materials. Tenant
acknowledges and agrees that all reporting and warning obligations required
under the Hazardous Materials Laws with respect to Tenant’s Hazardous Materials
Activity are the sole responsibility of Tenant, whether or not such Hazardous
Materials Laws permit or require Landlord to provide such reporting or
warnings, and Tenant shall be solely responsible for complying with such
Hazardous Materials Laws regarding the disclosure of, the presence or danger of
Tenant’s Hazardous Materials Activity. Tenant shall immediately notify
Landlord, in writing, of any complaints, notices, warnings, reports or asserted
violations of which Tenant becomes aware relating to Hazardous Materials on or
about the Premises. Tenant shall also immediately notify Landlord if Tenant
knows or has reason to believe Tenant’s Hazardous Materials have or will be
released in or about the Premises.


 


14.3                  Environmental
Tests and Audits. Tenant shall not perform or cause to be performed, any
Hazardous Materials surveys, studies, reports or inspection, relating to the
Premises without obtaining Landlord’s advance written consent, which consent
may be withheld in Landlord’s sole discretion. At any time prior to the
expiration of the Term, Landlord shall have the right to enter upon the
Premises in order to conduct appropriate tests and to deliver to


 

















 


Tenant the results of such
tests to demonstrate that levels of any Hazardous Materials in excess of
permissible levels has occurred as a result of Tenant’s use of the Premises.


 


14.4                  Survival/Tenant’s
Obligations. The respective rights and obligations of Landlord and Tenant
under this Article shall survive the expiration or termination of this
Lease.


 


ARTICLE 15

DESTRUCTION OF PREMISES


 


15.1                  Damage and
Destruction. If all or any part of the Premises shall be damaged or
destroyed by fire or other casualty, this Lease shall continue in full force
and effect, unless terminated as hereinafter provided, and Landlord shall
repair, restore or rebuild the Premises to the condition existing at the time
of the occurrence of the loss; provided, however, Landlord shall not be
obligated to commence such repair, restoration or rebuilding until insurance
proceeds are received by Landlord, and Landlord’s obligation hereunder shall be
limited to the proceeds actually received by Landlord under any insurance
policy or policies, if any, less those amounts (i) which have been
required to be applied towards the reduction of any indebtedness secured by a
mortgage covering the Premises or any portion thereof, and (ii) which are
used to reimburse Landlord for all costs and expenses, including but not
limited to attorneys’ fees, incurred by Landlord to recover any such insurance
proceeds.


 


Tenant agrees to notify
Landlord in writing not less than thirty (30) days prior, to the date Tenant
opens for business in the Premises of the actual cost of all permanent
leasehold improvements and betterments installed or to be installed by Tenant
in the Premises (whether same have been paid for entirely or partially by
Tenant), but exclusive of Tenant’s personal property, movable trade fixtures
and inventory. Similar notifications shall be given to Landlord not less than
thirty (30) days prior to the commencement of any proposed alterations,
additions or improvements to the Premises. If Tenant fails to comply, with the
foregoing provisions, any loss or damage Landlord shall sustain by reason thereof
shall be borne by Tenant and shall be paid immediately by Tenant upon receipt
of a bill therefore and evidence of such loss, and in addition to any other
rights or remedies reserved by Landlord under this Lease, Landlord’s
obligations under this Article to repair, replace and/or rebuild the
Premises shall be deemed inapplicable, and in lieu thereof, Landlord may, at
its election, either restore or require Tenant to restore the Premises to the
condition which existed prior to such loss, and in either case Tenant shall pay
the cost of such restoration.


 


Tenant covenants and agrees
to repair or replace Tenant’s fixtures, furniture, furnishings, floor
coverings, equipment and stock in trade and reopen for business in the Premises
within thirty (30) days after notice from Landlord that the Premises are ready
for re-occupancy.


 


No damage or destruction to
the Premises shall allow Tenant to surrender possession of the Premises nor
affect Tenant’s liability for the payment of rents or charges or any other covenant
herein contained, except as may be specifically provided in this Lease.


 


Notwithstanding anything to
the contrary contained in this Section or elsewhere in this Lease,
Landlord, at its option, may terminate this Lease by giving Tenant notice
thereof within one hundred and eighty (180) days from the date of the casualty
if:


 


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(a)   The Premises or the building in which
the Premises are located shall be damaged or destroyed as a result of an
occurrence which is not covered by Landlord’s insurance; or


 


(b)   The Premises shall be damaged or
destroyed during the last two (2) years of the Term or any renewals
thereof; or


 


(c)   The Premises are damaged or destroyed
to the extent of twenty five-percent (25%) or more of the replacement cost
thereof, in which event Landlord will have the option of terminating this Lease
or any renewal thereof by serving written notice upon Tenant and any prepaid
Rent or Additional Rent will be prorated as of the date of destruction and the
unearned portion of such Rent will be refunded to Tenant without interest.


 


If the Premises shall be
damaged or destroyed and in the event that Landlord has elected to continue
this Lease, Landlord and Tenant shall commence their respective obligations
under this Article as soon as is reasonably possible and prosecute the
same to completion with all due diligence.


 


Except where the damage or
destruction results from the wrongful or negligent act or omission of Tenant,
the Minimum Rent shall be abated proportionately with the degree to which
Tenant’s use of the Premises is impaired during the period of any damage,
repair or restoration provided for in this Article; provided further, that in
the event Landlord elects to repair any damages as herein contemplated, any
abatement of Minimum Rent shall end ten (10) days after notice by Landlord
to Tenant that the Premises have been repaired. Tenant shall continue the
operation of its business on the Premises during any such period to the extent
reasonably practicable from the standpoint of prudent business management, and
any obligation of Tenant under the Lease to apply charges reserved as
Additional Rent shall remain in full force and nothing in the Section shall
be construed to abate Additional Rent. Except for the abatement of Minimum Rent
hereinabove provided, Tenant shall not be entitled to any compensation or
damage for loss in the use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by any damage, destruction, repair or
restoration. If Minimum Rent is abated there shall be all corresponding and
appropriate reduction made to the Minimum Annual Volume.


 


Unless this Lease is
terminated by Landlord, Tenant shall repair, restore and re-fixture all parts
of the Premises not insured under any insurance policies insuring Landlord in a
manner and to a condition equal to that existing prior to its destruction or
damage, including, without limitation, all exterior signs, trade fixtures,
equipment, display cases, furniture, furnishings and other installations of
personality of Tenant. The proceeds of all insurance carried by Tenant on its
property and improvements shall be held in trust by Tenant for the purpose of
said repair and replacement. Tenant shall give to Landlord prompt written
notice of, any damage to or destruction of any portion of the Premises
resulting from fire or other casualty.


 


ARTICLE 16

EMINENT DOMAIN


 


16.1                  Total
Condemnation of Premises. If the whole of the Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, then
the Term of this Lease shall cease and terminate as of the date of title
vesting in such proceeding and all rentals shall be paid up to that date.


 


12

















 


16.2                      Partial
Condemnation of Premises.


 


16.2.1            If twenty
(20%) percent or more of the Premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, then the Tenant shall
have the option to cancel and terminate this Lease upon notice thereof given to
the Landlord within ninety (90) days after the vesting of title in such
proceeding.


 


16.2.2            In the event
that less than ten (10%) percent of the Premises shall be acquired or condemned
by eminent domain for any public or quasi-public use or purpose, or in the
event ten (10%) percent or more of the Premises shall have been so taken, and
Tenant shall not elect to terminate this Lease as set forth above, then the
Landlord shall promptly restore the Premises to a condition reasonably
comparable under the circumstances to its condition at the time of such
condemnation, less the portion lost in the taking; and this Lease shall
thereafter continue in full force and effect. In such event of a partial
taking, described hereinabove, from the effective date that physical possession
is taken by the condemning authority through the end of the term of this Lease,
the annual Minimum Rent payable by Tenant to Landlord under this Lease shall be
reduced by a fraction, the numerator of which shall be the gross area of the
premises so taken by the condemning authority and the denominator of which
shall be the gross area of the Premises on the date immediately prior to the
effective date of such taking.


 


16.3                      Total Condemnation of
Parking. If the whole of the common parking areas at or near the Premises
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purpose, then the term of this Lease shall cease and terminate as of the
date of title vesting in such proceeding.


 


16.4                      Partial Condemnation of
Parking Area. If twenty (20%) percent or more of the common parking areas
at or near the Premises shall be acquired or condemned by eminent domain for
any public or quasi-public use or purpose, then the Tenant shall have the
option to cancel and terminate this Lease upon notice thereof given to the
Landlord within ninety (90) days after the vesting of title in such proceeding.


 


If
less than twenty (20%) percent of the parking areas at or near the Premises
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purpose, or if more than twenty (20%) percent of the parking areas shall
be so acquired or condemned, but Tenant shall not elect to cancel and terminate
this Lease, then the Landlord shall restore the parking areas to a condition
reasonably comparable under the circumstances to its condition at the time of
such condemnation, less the portion lost in the taking. In such event, this
Lease shall be and remain in full force and effect and no reduction of Minimum
Rent or any Additional Rent payable by Tenant under this Lease shall be allowed
in such circumstances, but Tenant shall continue to pay the full Minimum Rent
or any Additional Rent payable under this Lease for the balance of the term
hereof.


 


ARTICLE 17

DEFAULTS


 


17.1                      Events of Default By
Tenant. If (1) Tenant vacates, abandons or surrenders all or any part
of the Premises prior to the expiration of the Term of the Lease or (2) Tenant
fails to fulfill any of the terms or conditions of this Lease or any other
lease heretofore made by Tenant


 


13

















 


for space in the Premises or
(3) the appointment of a trustee or a receiver to take possession of all
or substantially all of Tenant’s assets occurs, or if the attachment, execution
or other judicial seizure of all or substantially all of Tenant’s assets
located at the Premises, or of Tenant’s interest in this Lease, occurs, or (4) Tenant
or any of its successors or assigns or any guarantor of this Lease (“Guarantor”)
should file any voluntary petition in bankruptcy, reorganization or
arrangement, or an assignment for the benefit of creditors or for similar
relief under any present or future statute, law or regulation relating to
relief of debtors, or (5) Tenant or any of its successors or assigns or
any Guarantor should be adjudicated bankrupt or have an involuntary petition in
bankruptcy, reorganization or arrangement filed against it, or (6) Tenant
shall permit, allow or suffer to exist any lien, judgment, writ, assessment,
charge, attachment or execution upon Landlord’s or Tenant’s interest in this
Lease or to the Premises, and/or the fixtures, improvements and furnishings
located thereon; then, Tenant shall be in default hereunder.


 


17.2                      Tenant’s Grace Periods.
If (1) Tenant fails to pay Rent or Additional Rent within five (5) days
after notice from Landlord of delinquency or (2) Tenant fails to cure any
other default within ten (10) days after notice faith), then Landlord shall
have such remedies as are provided under this Lease and/or under the laws of
the State of Arizona.


 


17.3                      Repeated Late Payment.
Regardless of the number of times of Landlord’s prior acceptance of late
payments and/or late charges, (i) if Landlord notifies Tenant twice in any
6-month period that Minimum Rent or any Additional Rent has not been paid when
due, then any other late payment within such 6-month period shall automatically
constitute a default hereunder without the necessity of notice and (ii) the
mere acceptance by Landlord of late payments in the past shall not, regardless
of any applicable laws to the contrary, thereafter be deemed to waive Landlord’s
right to strictly enforce this Lease, including Tenant’s obligation to make
payment of Rent on the exact day same is due, against Tenant.


 


17.4                      Landlord’s Default.
If Tenant asserts that Landlord has failed to meet any of its obligations under
this Lease, Tenant shall provide written notice (“Notice of Default”) to
Landlord specifying the alleged failure to perform, and Tenant shall send by
certified mail, return receipt requested, a copy of such Notice of Default to
any and all mortgage holders, provided that Tenant has been previously advised
of the addresses) of such mortgage holder(s). Landlord shall have a thirty (30)
day period after receipt of the Notice of Default in which to commence curing
any non-performance by Landlord, and Landlord shall have as much time
thereafter to complete such cure as is necessary so long as Landlord’s cure
efforts are diligent and continuous, if Landlord has not begun the cure within
thirty (30) days of receipt of the Notice of Default, or Landlord does not
thereafter diligently and continuously attempt to cure, then Landlord shall be
in default under this Lease. If Landlord is in default under this Lease, then
the mortgage holder(s) shall have an additional thirty (30) days, after
receipt of a second written notice from Tenant, within which to cure such
default or, if such default cannot be cured within that time, then such
additional time as may be necessary so long as their efforts are diligent and
continuous.


 


ARTICLE 18

LANDLORD’S REMEDIES FOR TENANT’S DEFAULT.


 


18.1                      Landlord’s Options.
If Tenant is in default of this Lease, Landlord may, at its option, in addition
to such other remedies as may be available under the law of the State of
Pennsylvania:


 

















 


(a)    Terminate this Lease and Tenant’s
right of possession; or


 


(b)    Terminate Tenant’s right to possession
but not the Lease and/or proceed in accordance with any and all provisions of Section 18.2
below.


 


18.2                      Landlord’s Remedies.
Landlord may without further notice reenter the Premises either by force or
otherwise and dispossess Tenant by summary proceedings or otherwise, as well as
the legal representatives) of Tenant and/or other occupants) of the Premises,
and remove their effects and hold the Premises as if this Lease had not been
made, and Tenant hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end; and/or at Landlord’s option.


 


All
Rent for the balance of the Term will, at the election of Landlord, be
accelerated and the present worth of same for the balance of the Term, net of
amounts actually collected by Landlord, shall become immediately due thereupon
and be paid, together with all expenses of every nature which Landlord may
incur such as (by way of illustration and not limitation) those for attorneys’
fees, brokerage, advertising, and refurbishing the Premises in good order or
preparing them for re-rental. For purposes of this clause (2), “present worth”
shall be computed by discounting such amount to present worth at a discount
rate equal to one percentage point above the discount rate then in effect at
the Federal Reserve Bank nearest to the location of the Premises.


 


Landlord
may re-let the Premises or any part thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord’s option be less than or
exceed the period which would otherwise have constituted the balance of the
Term, and may grant concessions or free rent or charge a higher rental than
that reserved in this Lease; and/or at Landlord’s option, Tenant or its legal
representatives will also pay to Landlord as liquidated damages any deficiency
between the Rent and all Additional Rent hereby reserved and/or agreed to be
paid and the net amount, if any, of the rents collected on account of the lease
or leases of the Premises for each month of the period which would otherwise
have constituted the balance of the Term.


 


If
Landlord exercises the remedy above, and provided that Tenant has paid Landlord
the accelerated Rent as required by this Section, Landlord shall remit to
Tenant on a monthly basis until the Expiration Date any amounts actually
collected by Landlord as a result of are letting remaining after subtracting
therefrom all reasonable costs paid by Landlord to secure a replacement tenant
including reasonable marketing/leasing costs, fees and commissions, and costs
of preparing improvements and refurbishment to the Premises for the replacement
tenant. In no event shall the total amount paid to Tenant pursuant to the
preceding sentence exceed the accelerated Rent paid by Tenant to Landlord. If
this Lease is terminated, Landlord may re-let the Premises or any part thereof,
alone or together with other premises, for such term or terms (which may be
greater or less than the period which otherwise would have constituted the
balance of the Term) and on such terms and conditions (which may include
concessions or free rent and alterations of the Premises) as Landlord, in its
sole discretion, may determine, but Landlord shall not be liable for nor shall
Tenant’s obligations hereunder be diminished by reason of, any failure by
Landlord to re-let the Premises or any failure by Landlord to collect any rent
due upon such re-letting.


 


18.3                      Waiver of Jury Trial.
To the extent permitted by law, Tenant hereby waives: (a) jury trial in
any action or proceeding regarding a monetary default by Tenant and/or Landlord’s


 

















 


right to possession of the
Premises, and (b) in any action or proceeding by Landlord for eviction
where Landlord has also filed a separate action for damages, Tenant waives the
right to interpose any counterclaim in such eviction action. Moreover, Tenant
agrees that it shall not interpose or maintain any counterclaim in such damages
action unless it pays and continues to pay all Rent, as and when due, into the
registry of the court in which the damages action is filed.


 


18.4                      Waiver of Rights of
Redemption. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by Tenant of any of the
covenants or conditions of this Lease or otherwise.


 


ARTICLE 19

BANKRUPTCY PROVISIONS


 


19.1                      Event of Bankruptcy.
If this Lease is assigned to any person or entity pursuant to the provisions of
the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the “Bankruptcy
Code”), any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord, and shall not
constitute the property of Tenant or of the estate of Tenant within the meaning
of the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord’s property under this Section not paid or delivered to Landlord
shall be held in trust for the benefit of Landlord and shall be promptly paid
or delivered to Landlord. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of such assignment.


 


19.2                      Additional Remedies.
In addition to any rights or remedies hereinbefore or hereinafter conferred
upon Landlord under the terms of this Lease, the following remedies and
provisions shall specifically apply in the event Tenant is in default of this
Lease:


 


19.2.1            In all events,
any receiver or trustee in bankruptcy shall either expressly assume or reject
this Lease within sixty (60) days following the entry of an “Order for Relief
or within such earlier time as may be provided by applicable law.


 


19.2.2            In the event
of an assumption of this Lease by a debtor or by a trustee, such debtor or
trustee shall within fifteen (15) days after such assumption (i) cure any
default or provide adequate assurance that defaults will be promptly cured; (ii) compensate
Landlord for actual pecuniary loss or provide adequate assurance that
compensation will be made for actual monetary loss, including, but not limited
to, all attorneys’ fees and costs incurred by Landlord resulting from any such
proceedings; and (iii) provide adequate assurance of future performance.


 


19.2.3            Where a
default exists under this Lease, the trustee or debtor assuming this Lease may
not require Landlord to provide services or supplies incidental to this Lease
before its assumption by such trustee or debtor, unless Landlord is compensated
under the terms of this Lease for such services and supplies provided before
the assumption of such Lease.


 


19.2.4            The debtor or
trustee may only assign this Lease if (i) it is assumed and the assignee
agrees to be bound by this Lease, (ii) adequate assurance of future
performance by the assignee is provided, whether or not there has been a
default under this Lease, and (iii) the debtor or trustee has


 


16

















 


received Landlord’s prior
written consent pursuant to the provisions of this Lease. Any consideration
paid by any assignee in excess of the rental reserved in this Lease shall be
the sole property of, and paid to, Landlord.


 


19.2.5  Landlord shall be entitled to the fair market
value for the Premises and the services provided by Landlord (but in no event
less than the rental reserved in this Lease) subsequent to the commencement of
a bankruptcy event.


 


19.2.6  Any security deposit given by Tenant to
Landlord to secure the future performance by Tenant of all or any of the terms
and conditions of this Lease shall be automatically transferred to Landlord
upon the entry of an “Order of Relief.”


 


19.2.7  The parties agree that Landlord is entitled to
adequate assurance of future performance of the terms and provisions of this
Lease in the event of an assignment under the provisions of the Bankruptcy
Code. For purposes of any such assumption or assignment of this Lease, the
parties agree that the term “adequate assurance” shall include, without
limitation, at least the following: (i) any proposed assignee must have,
as demonstrated to Landlord’s satisfaction, a net worth (as defined in
accordance with generally accepted accounting principles consistently applied)
in an amount sufficient to assure that the proposed assignee will have the
resources to meet the financial responsibilities under this Lease, including
the payment of all Rent; the financial condition and resources of Tenant are
material inducements to Landlord entering into this Lease; (ii) any
proposed assignee must have engaged in the Use described in Section 1.2
for at least five (5) years prior to any such proposed assignment, the
parties hereby acknowledging that in entering into this Lease, Landlord
considered extensively Tenant’s permitted use and determined that such
permitted business would add substantially to the tenant balance in the Premises,
and were it not for Tenant’s agreement to operate only Tenant’s permitted
business on the Premises, Landlord would not have entered into this Lease, and
that Landlord’s operation of the Premises will be materially impaired if a
trustee in bankruptcy or any assignee of this Lease operates any business other
than Tenant’s permitted business; (iii) any assumption of this Lease by a
proposed assignee shall not adversely affect Landlord’s relationship with any
of the remaining tenants in the building in which the Premises are located,
taking into consideration any and all other “use” clauses and/or “exclusivity”
clauses which may then exist under their leases with Landlord; and (iv) any
proposed assignee must not be engaged in any business or activity which it will
conduct on the Premises and which will subject the Premises to contamination by
any Hazardous Materials.


 


ARTICLE 20

LIMITATIONS OF LANDLORD’S LIABILITY


 


The
term “Landlord” as used in this Lease, so far as covenants or obligations on
the part of the Landlord are concerned shall be limited to mean and include
only a ground lessee if the named Landlord herein is holding the premises under
a ground lease for so long as the named Landlord is the holder of such ground
lease interest or the owner or owners of the fee simple of the Premises; and in
the event of transfer or transfers of either the ground leasehold interest to
any other person or the transfer of title to the fee premises to any person,
the Landlord herein named (and in the case of subsequent transfers or
conveyances the then grantor or assignor), shall be automatically freed and
relieved from and after the date of such transfer or conveyance or assignment
of all liability as respects the performance of any covenant or obligation on
the part of the Landlord contained in this Lease thereafter to be performed, it
being the intention of the parties that the covenants and obligations to be
observed and performed by the-Landlord


 














 


shall be binding upon the
Landlord only during and in respect of its period of ownership of either a
leasehold interest, or a fee interest as the case may be. Anything in this
Lease to the contrary notwithstanding, Tenant agrees that Tenant shall, subject
to prior rights of any mortgagee of the Premises, look solely to the estate and
property of Landlord in the Premises for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms,
covenants and conditions of this Lease to be observed and/or performed by
Landlord, and no other assets of Landlord or any principal of Landlord shall be
subject to levy, execution or other procedures for the satisfaction of Tenant’s
remedies.


 


ARTICLE 21

ACCESS BY LANDLORD


 


Landlord
or Landlord’s agents shall have the right to enter the Premises at all times to
examine the same and to show them to prospective purchasers of the building,
and to make such repairs, alterations, improvements or additions as Landlord
may deem necessary or desirable, and Landlord shall be allowed to take all
material into and upon said premises that may be required therefore, without
the same constituting an eviction of Tenant in whole or in part and the Rent
reserved shall in no way abate while said repairs, alterations, improvements,
or additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise. During the six (6) month period prior to the expiration
of the term of this Lease or any renewal term, Landlord may exhibit the
Premises to prospective tenants or purchasers, and place upon the premises the
usual notices “To Let” or “For Sale” which notices Tenant shall permit to
remain thereon without molestation. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility or
liability whatsoever, for the care, maintenance, or repair of the Premises or
any part thereof, except as otherwise herein specifically provided. Landlord to
give Tenant reasonable notice during business hours prior to any entry.


 


ARTICLE 22

QUIET ENJOYMENT


 


22.1                      Landlord’s Covenant.
Upon payment by the Tenant of the rents and other charges herein provided, and
upon the observance and performance of all the covenants, terms and conditions
on Tenant’s part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully
or equitably claiming by, through or under the Landlord, subject, nevertheless,
to the terms and conditions of this Lease.


 


ARTICLE 23

MISCELLANEOUS


 


23.1                      Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than the rent
herein stipulated to be paid shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord’s right to recover the balance of such rent or pursue any other
remedy provided herein or by law.


 


23.2                      Entire Agreement.
This Lease constitutes all covenants, promises, agreements, conditions and
understandings between Landlord and Tenant concerning the Premises and the


 


18

















 


Building and there are no
covenants, promises, conditions or understandings, either oral or written,
between them other than are herein set forth. Neither Landlord nor Landlord’s
agents have made nor shall be bound to any representations with respect to the
Premises or the Building except as herein expressly set forth, and all
representations, either oral or written, shall be deemed to be merged into this
Lease Agreement. Except as herein otherwise provided, no subsequent alteration
change or addition to this lease shall be binding upon Landlord or Tenant
unless reduced to writing and signed by them.


 


23.3                      Notices.


 


23.3.1            Any notice by
Tenant to Landlord must be served by certified mail return requested, addressed
to Landlord at the address first hereinabove given or at such other address as
Landlord may designate by written notice. Tenant shall also provide copies of
any notice given to Landlord to such mortgagees, agents or attorneys of
Landlord as Landlord may direct.


 


23.3.2            After
commencement of the term hereof any notice by Landlord to Tenant shall be
served by certified mail, return receipt requested addressed to Tenant at the
Premises or at such other address as Tenant shall designate by written notice,
or by delivery by Landlord to the Premises or to such other address.


 


	
  Landlord:

  	
  Tenant:

  
	
   

  	
   

  
	
  2234 Colonial Blvd.

  	
  2234 Colonial Blvd.

  
	
  Fort Myers, FL 33907

  	
  Fort Myers, FL 33907

  



 


23.3.3            All notices
given hereunder shall be in writing, and shall be effective and deemed to have
been given only upon receipt by the party to which notice is being given, said
receipt being deemed to have occurred upon hand delivery or posting, or upon
such date as the postal authorities shall show the notice to have been
delivered, refused, or undeliverable, as evidenced by the return receipt.
Notwithstanding any other provision hereof, Landlord shall also have the right
to give notice to Tenant in any other manner provided by law.


 


23.4                      Successors. All
rights and liabilities herein given to, or imposed upon,, the respective
parties hereto shall extend to and bind the several respective heirs, legal
representatives, and permitted successors and assigns of the said parties; and
if there shall be more than one person or party constituting the Tenant, they
shall be bound jointly and severally by the terms, covenants and agreements
herein. No rights, however, shall inure to the benefit of any assignee of
Tenant unless the assignment to such has been approved by Landlord in writing
as provided herein. Nothing contained in this Lease shall in any manner
restrict Landlord’s right to assign or encumber this Lease and, in the event
Landlord sells its interest in the Building and the purchaser assumes Landlord’s
obligations and covenant, Landlord shall thereupon be relieved of all further
obligations hereunder.


 


23.5                      Captions and Section Numbers.  The captions, section numbers, and article
numbers appearing in this Lease are inserted only as a matter of convenience
and in no way define, limit, construe, or describe the scope or intent of such
sections or articles of this Lease nor in any way affect this Lease.


 


19

















 


23.6                      Broker’s Commission.
The Tenant represents and warrants to Landlord that it has dealt with no real
estate broker, agent, salesperson or finder in connection with this Lease or
the Premises. Notwithstanding the foregoing, Tenant agrees to indemnify, defend
and save the Landlord harmless from all liabilities arising from claims by any
real estate broker or agent claiming through Tenant. Such indemnity of Tenant
shall include, without limitation, all of attorneys, fees incurred in
connection therewith.


 


23.7                      Partial Invalidity.
If any term, covenant or condition of this Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Lease the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and enforceable to the fullest extent
permitted by law.


 


23.8                      Estoppel Certificate.
Landlord and Tenant agree that each will, at any time and from time to time,
within ten (10) days following written notice by the other party hereto
specifying that it is given pursuant to this Section, execute, acknowledge and
deliver to the party who gave such notice, or its designate, a statement in
writing certifying that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full
force and effect and stating the modifications), and the date to
which the annual rent and any other payments due hereunder from Tenant have
been paid in advance, if any, and stating whether or not there are defenses or
offsets claimed by the maker of the certificate and whether or not to the best
of knowledge of the signer of such certificate the other party is in default in
performance of any covenant agreement or condition contained in this Lease, and
if so, Specifying each such default of which the maker may have knowledge and
if requested, such financial information concerning Tenant and Tenant’s
business operations (and the Guarantor of this Lease, if this Lease be
guaranteed) as may be reasonably requested by any Mortgagee or prospective
mortgagee or purchaser. The failure of either party to execute, acknowledge and
deliver to the other a statement in accordance with the provisions of this Section within
said ten (10) business day period shall constitute an acknowledgment, by
the party given such notice, which may be relied on by any person holding or
proposing to acquire an interest in the Building or any party thereof or the
Premises or this Lease from or through the other party, that this Lease is
unmodified and in full force and
effect and that such rents have been duly and fully
paid to an including the respective due dates immediately preceding
the date of such notice and shall constitute, as to any person entitled as
aforesaid to rely upon such statements, waiver of any defaults which may exist
prior to the date of such notice; provided, however that nothing contained in
the provision of this Section shall constitute waiver by Landlord of any
default in payment of rent or other charges existing as of the date of such
notice and, unless expressly consented to in writing by Landlord, and Tenant
shall still remain liable for the same.


 


23.9                      Liability of Landlord.
Tenant shall look solely to the estate and property of the Landlord in the
Premises for the collection of any judgment, or in connection with any other
judicial process, requiring the payment of money by Landlord in the event of
any default by Landlord with respect to any of the terms, covenants and
conditions of this Lease to be observed and performed by Landlord, and no other
property or estates of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of Tenant’s remedies and rights
under this Lease. Both parties waive a jury trial if any litigation arises.


 

















 


23.10                Recordings. Tenant
shall not record this Lease, or any memorandum or short form thereof, without
the written consent and joinder of Landlord.


 


23.11                Time of Essence.
Time is of the essence with respect to the performance of every provision of
this Lease in which time of performance is a factor.


 


ARTICLE 24

TENANT’S PROPERTY


 


24.1                      Taxes on Leasehold.
Tenant shall be responsible for and shall pay before delinquency all municipal,
county or state taxes assessed during the term of this Lease against any
leasehold interest or personal property of any kind, owned by or placed in,
upon or about the Premises by the Tenant.


 


24.2                      Personal Property.
Landlord shall not be liable for any damage to property of Tenant or of others
located on the Premises, nor for the loss of or damage to any property of
Tenant or of others by theft or otherwise. Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain, or snow or leaks from any part
of the Premises or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature. Landlord shall not be liable for any such
damage caused by other tenants or persons in the Premises, occupants of
adjacent property, or caused by operation in construction of any private,
public or quasi-public work. All property of Tenant kept or stored on the
Premises shall be so kept or stored at the sole risk of Tenant only.


 


24.3                      Notice by Tenant.
Tenant shall give immediate notice to Landlord in case of fire or accidents in
the Premises or in the building of which the Premises are a part or of defects
therein or in any fixtures or equipment.


 


ARTICLE 25

HOLDING OVER SUCCESSORS


 


25.1                      Surrender of Premises.
At the expiration of the tenancy hereby created, Tenant shall surrender the
Premises in the same condition as the Premises were in upon the Commencement
Date, reasonable wear and tear excepted, and damage by unavoidable casualty
excepted, and shall surrender all keys for the Premises to Landlord at the
place then fixed for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Premises. Tenant shall
remove all its trade fixtures before surrendering the premises as aforesaid and
shall repair any damage to the Premises caused thereby. Tenant’s obligation to
observe or perform this covenant shall survive the expiration or other
termination of the term of this Lease.


 


ARTICLE 26

ATTORNEY FEES AND COSTS


 


26.1                      Attorney Fees and Costs.
In the event of a lawsuit or litigation concerning this Lease or enforcement of
this Lease the prevailing party shall be entitled to reasonable attorney fees
and costs. This will also cover appellant fees and appellant costs.


 

















 


ARTICLE 27

VENUE


 


27.1                      Venue. In the event
of a lawsuit, litigation or interpretation of this Lease Agreement parties
shall be governed by the laws of the State of Florida.


 


IN
WITNESS WHEREOF, the undersigned has hereunto set his hand and seal on 7th day
of February, 2007.


 


	
   

  	
   

  	
  LANDLORD:

  	
  Daniel E. Dosoretz

  
	
   

  	
   

  	
  Theriac Enterprises of
  Littlestown, LLC

  
	
   

  	
   

  	
  By: Daniel E. Dosoretz,
  Managing Member for DDM, LLC, Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  	
  David Koeninger

  
	
   

  	
   

  	
  21st Century Oncology of Pennsylvania Inc.

  
	
   

  	
   

  	
  By: David Koeninger its
  Vice President

  
					



 


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