Exhibit 10.33


 


FIRST AMENDMENT TO LEASE


 


This
FIRST AMENDMENT TO LEASE dated December 31, 2009 (this “Amendment”), is by
and between BONITA RADIATION ASSOCIATES, a Florida general partnership (“Landlord”),
and 21ST CENTURY ONCOLOGY, INC., a Florida corporation (“Tenant”).


 


WITNESSETH:


 


WHEREAS,
Landlord and Tenant are parties to that certain Lease dated January 8,
2001 (the “Lease”), for certain real property commonly known as 8991 Brighton
Lane, Bonita Springs, Florida, as more particularly described on Exhibit A,
attached hereto and made a part hereof; 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.                                      Insurance and
Indemnity. The third sentence of the “Liability Insurance” Section on
page 4 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
Fixtures and Improvements. The “Tenant’s Leasehold Improvements and
Trade Fixtures” Section commencing on page 9 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 fifth
line of the second paragraph, deleting the word “further.”


 


3.                                      Destruction of
Premises. The third paragraph of the “Damage and Destruction”
Section on page 14 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.                                      Option to
Purchase the Property. The “Option to Purchase the Property” Section on
page 27 of the Lease is hereby deleted in its entirety.


 


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


 


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


 


7.                                      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.


 


8.                                      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.


 


9.                                      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:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BONITA RADIATION
  ASSOCIATES, a

  
	
   

  	
   

  	
  Florida general
  partnership

  
	
  Witness 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
  Signature

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
   

  	
  Its:

  	
   

  
	
  Authorized Signatory

  	
   

  	
   

  
	
  Printed Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  21ST CENTURY
  ONCOLOGY, INC., a

  Florida corporation

  
	
  Witness 2

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
  Signature

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
  Its:

  	
  EVP & CFO

  
	
  Authorized Signatory

  	
   

  	
   

  	
   

  
	
  Printed Name

  	
   

  	
   

  	
   

  



 


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EXHIBIT A


 


Lot 7, Replat of Tract B and
C, Section 28, Commercial Community, according to plat thereof recorded in
Plat Book 60, Page 6, of the Public Records of Lee County, Florida.


 


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LEASE


 


LANDLORD: BONITA RADIATION
ASSOCIATES, a Florida general partnership


 


TENANT: 21ST CENTURY
ONCOLOGY, INC., a Florida corporation


 


PREMISED BEING RENTED: 8991
Brighton Lane, Bonita Springs, Florida, with the following legal description:


 


Lot
7, Replat of Tract B and C, Section 28, Commercial Community, according to
plat thereof recorded in Plat

Book 60, Page 6, of the Public Records of Lee County, Florida.


 


This will be a net, net, net
lease and rental which covers taxes, insurance, repairs and replacements which
Tenant will pay.


 


NUMBER OF SQUARE FEET BEING
RENTED:


 


The number of square feet
being rented is 10,000 square feet at the rate of $34.52 per square foot.


 


MINIMUM RENT:


 


The first year’s rent will
be $345,200.00. The monthly rent will be $28,766.67 per month, plus Florida
Sales Tax, subject to increases with adjustments after the first year and any
increase in the Consumer Price Index.


 


ADDITIONAL RENT:


 


Tenant to pay for all real
property taxes, real property assessments, storm water or any other type of
assessments. Tenant to pay for its own insurance. Tenant to pay for all repairs
and replacements. Tenant to pay for common costs and common maintenance costs
based upon the square footage that they occupy in the building. This will all
be additional rent. The figures can be computed so that this additional rent,
plus sales tax, will be added on each month to the minimum rent aforementioned.
Tenant to pay for all taxes on its equipment and improvements.


 


CONSTRUCTION:


 


Landlord will erect a radiation
therapy center on the premises being leased. No rent to be paid by Tenant until
construction is completed and a certificate of occupancy is issued to the
Landlord. Tenant to have the right to inspect the premises prior to accepting
delivery of same. All this will be considered as part of the lease. The
radiation therapy center will be owned by the Tenant. If any improvements have
to be made both parties will agree who will pay for the same and there will be
an addendum attached to the lease. This page is considered part of the
lease.


 

















 


LEASE


 


THIS
LEASE (“Lease”) is made and entered into as of the 8th day of January, 2001, by
and between, BONITA RADIATION ASSOCIATES, a Florida general partnership, (“Landlord”)
and 21ST CENTURY ONCOLOGY, INC., a Florida corporation, (“Tenant”)


 


W
I T N E S S E T H:


 


TERMS


 


General.
Pursuant to an agreement between Tenant and Landlord, Landlord shall
reconstruct the building currently on the property into a radiation center.
Pursuant to an agreement between the parties, Landlord shall retain ownership
of the building. Tenant has agreed to lease the building from the Landlord, and
Landlord has agreed to lease the building to Tenant, pursuant to this written
lease agreement.


 


Property.
Landlord hereby demises and leases to Tenant and Tenant hereby hires and rents
from Landlord the Property upon the terms, covenants and conditions set forth
herein, which Property has a Floor Area containing the approximate square
footage of 10,000 square feet. The legal description of the entire property
located at 8991 Brighton Lane, Bonita Springs, Florida is:


 


Lot
7, Replat of Tract B and C, Section 28, Commercial Community, according to
plat thereof recorded in Plat

Book 60, Page 6, of the Public Records of Lee County, Florida.


 


Use.
The Property in this Lease is to be used for a radiation therapy center.


 


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 the Rent Commencement Date. The
Landlord is currently renovating the building. When the Landlord obtains a
Certificate of Occupancy for the building a Commencement Date will be
determined. At that time, an Addendum will be prepared to show the Commencement
Date and the date the lease expires. Construction will take several months.
Tenant pays no rent until the parties sign an Addendum to lease the
aforementioned.


 


Length
of the Term. The term of this lease period is for ten (10) years starting
on the Commencement Date, which will be determined when the Landlord obtains a
Certificate of Occupancy from the City of Bonita Springs or Lee County.


 


RENT


 


Rent.
Minimum Rent shall be TWENTY-EIGHT THOUSAND SEVEN HUNDRED SIXTY-SIX and 67/100
DOLLARS ($28,766.67) per month plus Florida sales tax. 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 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.


 


(2a)                          There will be
an increase in the Minimum Rent starting on the first anniversary of the lease
if the Consumer Price Index increases. The 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 2000 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. The
minimum will never be less than $28,766.67. 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 lease term or renewal
term. The percentage increase in the Consumer Price Index will increase the
minium rent for that year.


 


(2b)                          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 ether
nonpartisan publication, evaluating the information for use in determining the
Consumer Price Index, shall be used in lieu of such Consumer Price Index.


 


(3)                                 The annual
minium Rent is THREE HUNDRED FORTY-FIVE THOUSAND TWO HUNDRED and 00/100 DOLLARS
($345,200.00), for each year, unless changed by the increase in the Consumer
Price Index.


 


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(4)                                 Any increase in
the Consumer Price Index after the first year of the Lease and every year
thereafter will be added to the Minimum Rent.


 


(5)                                 Real Estate tax
and insurance will be included as Additional Rent each and every month.


 


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.


 


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 three
percent (3%) (“Default Date”).


 


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 to 21st Century Oncology, Inc.,
at 2234 Colonial Blvd., Fort Myers, FL 33907.


 


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 therefor.


 


NET LEASE


 


Net
Lease. This Lease shall be deemed and construed to be a net-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


 


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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 type of nature. Tenant is to pay for all insurance
and any and all costs for repairs, replacements, maintenance and improvements.
Tenant also is responsible for :


 


1)                                     To pay for
parking lot repairs, maintenance and replacements.


 


2)                                     To pay for and
install outside and inside lighting for parking.


 


3)                                     To pay for any
security, pest control or contracts for air conditioner and cleaning services, etc.
Copies of any and all contracts shall be furnished to the Landlord.


 


OPTION TO RENEW


 


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 the option to renew this Lease, for three
separate five (5) year option periods, provided that, in order to exercise
this Option to Renew, 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.


 


INSURANCE AND INDEMNITY


 


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
THREE MILLION ($3,000,000.00) / ONE MILLION DOLLARS ($1,000,000.00) per injury
and accident, respectively; property damage insurance in an amount not less
than ONE MILLION DOLLARS ($1,000,000.00); and worker’s compensation insurance
in the maximum amount permitted under Florida 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 Florida 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


 


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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.


 


Plat
Glass Insurance. The replacement of any plate glass damaged or broken from any
cause whatsoever in and about the Leased 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 Leased 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.


 


Increases
in Fire Insurance Premium. Tenant agrees that it will not keep, use or sell in
or upon the Leased 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 Leased 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 Leased Premises or
resulting from Tenant’s use of the leased Premises, whether or not Landlord has
consented to the same.


 


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 Leased Premises, or any part
thereof, or the


 


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occupancy or use by Tenant
of the Leased 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 Leased Premises or in the Center 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.


 


UTILITIES


 


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 Leased Premises. In the event that such utilities charges, or any portion
thereof shall be separately metered for the Leased 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 Leased Premises, tenant shall pay to Landlord
its pro rata share of such non-metered charges, which pro rata share shall be
equal to Tenant’s Proportionate Share of Building Assessments. 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 Leased
Premises.


 


SUBORDINATION AND ATTORNMENT


 


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
Property, the Center, and Building of which the Leased Premises is a part of
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,


 


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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.


 


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 Leased
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.


 


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 Leased Premises.


 


ASSIGNMENT AND SUBLETTING


 


Tenant
may not assign this lease in whole or in part, nor sublet all or any portion of
the Leased 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 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 Leased Premises, the
Building and the Property, 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.


 


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FACILITIES


 


Control
of Common Areas by Landlord, All automobile parking areas, driveways, entrances
and exits thereto, and other facilities furnished by Landlord in or near the
Center, 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. There are about
                          
parking spaces available to Tenant. Tenant is to maintain and repair parking
and at Tenant’s expense.


 


TENANT’S FIXTURES AND IMPROVEMENTS


 


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 therefor 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, without
interference with or disruption to the operations of tenants or other occupants
of the Center. 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.


 


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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 (20) 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.


 


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


 


9

















 


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.


 


MAINTENANCE AND REPAIR OF PREMISES


 


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.


 


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


 


10

















 


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


 


WASTE AND GOVERNMENTAL REGULATIONS


 


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, or in the Center.


 


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, and the Center, including,
but not limited to, the Americans with Disabilities Act, 42 U.S.C. Section 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 or the Center. 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 ADR 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.


 


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 Leased Premises, and shall faithfully
observe in the use of the Leased 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.


 


11














 


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 therefor should ever arise. Notice of
such rules and regulations and amendments and supplements thereto, if any,
shall be given to the Tenant.


 


HAZARDOUS MATERIALS


 


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. Section 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 or the Center and remediate and pay for any resultant damage to
property, 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, the Center Common Area 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


 


12

















 


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,
including, without limitation, the Center Common Area, arising from or caused
in whole or in part, directly or indirectly, by the presence in or about the
Center 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.


 


Disclosure
Warning and Notice Obligations. Tenant shall comply with all laws, ordinances
and regulations in the State where the Premises is located 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 Center or the Premises.


 


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 Lease 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.


 


13

















 


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.


 


DESTRUCTION OF PREMISES


 


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 Center 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 is 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.


 


14

















 


Notwitnstanamg
anytnmg to the contrary contained in tnis 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:


 


(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)           If by fire or other casualty the
Premises are damaged or destroyed to the extent of twenty five-percent (25%) or
more of the replacement cost thereof, or the Center is damaged or destroyed to
the extent of twenty-five per cent (25%) or more of the replacement cost
thereof, 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.


 


(d)           Any or all of the buildings or Common
Areas of the Center are damaged (whether or not the Premises are damaged) to
such an extent that, in the sole judgment of Landlord, the Center cannot be
operated as an economically viable unit.


 


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 20;
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 or Percentage Rent shall remain in full
force and nothing in the Section shall be construed to abate Additional
Rent or Percentage 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


 


15

















 


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.


 


EMINENT DOMAIN


 


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.


 


Partial
Condemnation of Premises. A. 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.


 


B.            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 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.


 


Total
Condemnation of Parking Area. If the whole of the common parking areas in the
Center 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

















 


Partial
Condemnation of Parking Area. If twenty (20%) percent or more of the common
parking areas in the Center 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 in the Center 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, Percentage 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, Percentage Rent, or any Additional Rent payable under this
Lease for the balance of the term hereof.


 


DEFAULTS


 


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 for space in the Center 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.


 


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 in which the Center is located.


 


17

















 


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, Percentage 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.


 


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.


 


LANDLORD’S REMEDIES FOR TENANT’S DEFAULT.


 


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
where the Center is located:


 


1.             Terminate this Lease and Tenant’s
right of possession; or


 


2.             Terminate Tenant’s right to
possession but not the Lease and/or proceed in accordance with any and all
provisions of paragraph B below.


 


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


 


18

















 


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 and all Additional 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 Lease 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 Center. If such termination shall take place after the
expiration of two or more Lease Years, then, for purposes of computing the
accelerated Rent, the Annual Percentage Rent payable with respect to each Lease
Year following termination (including the Lease Year in which such termination
shall take place) shall be conclusively presumed to be equal to the average
Annual Percentage Rent payable with respect to each complete Lease Year
preceding termination. If such termination shall take place before the
expiration of two Lease Years, then, for purposes of computing the accelerated
Rent, the Annual Percentage Rent payable with respect to each Lease Year
following termination (including the Lease Year in which such the unexpired
Term shall be conclusively presumed to be a sum equal to twenty-five percent
(25%) of the annual Minimum Rent due and payable during such unexpired Term;
and/or at Landlord’s option.


 


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
Lease 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 Lease Term.


 


If
Landlord exercises the remedy above, and provided that Tenant has paid Landlord
the accelerated Rent as required by this paragraph, Landlord shall remit to
Tenant on a monthly basis until the Expiration Date any amounts actually
collected by Landlord as a result of a re-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 pursuant to Section 23.5(A) (2)


 


19

















 


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.


 


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.


 


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.


 


BANKRUPTCY PROVISIONS


 


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.


 


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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:


 


(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.


 


(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.


 


(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.


 


(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 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.


 


(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.


 


(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”.


 


(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


 


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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 1.11
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 Center,
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 Center 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 Center 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.


 


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 Center, look solely to the estate and property
of Landlord in the Center 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.


 


22

















 


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 therefor, 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.


 


QUIET ENJOYMENT


 


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 Leased 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.


 


MISCELLANEOUS


 


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

















 


Entire
Agreement. This lease and the Exhibits attached hereto and forming a part
thereof as if fully set forth herein, constitute all covenants, promises,
agreements, conditions and understandings betvjeen Landlord and Tenant concerning
the Leased Premises and the 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 Leased 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.


 


Notices.
(a) 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.


 


(b) 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
Leased Premises or at such other address as Tenant shall designate by written
notice, or by delivery by Landlord to the Leased Premises or to such other
address.


 


	
  Landlord:

  	
   

  	
  Tenant:

  
	
  Bonita Radiation
  Associates

  	
   

  	
  21st Century Oncology, Inc.

  
	
  8991 Brighton Lane

  	
   

  	
  2234 Colonial Blvd.

  
	
  Bonita Springs, FL

  	
   

  	
  Fort Myers, FL 33907

  



 


(c) 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.


 


24

















 


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.


 


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.


 


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 Leased Premises.


 


Partial
Invalidity. If any term, covenant I 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.


 


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


 


25

















 


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
Leased 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.


 


Liability
of Landlord. Tenant shall look solely to the estate and property of the
Landlord in the Building 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.


 


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


 


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.


 


TENANT’S PROPERTY


 


Taxes
on Leasehold. Tenant shall be responsible for and shall pay before delinquency
all municipal, county or state taxes assessed during the terra 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.


 


26

















 


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 piaster, 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, of the Center, or the public, 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.


 


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.


 


HOLDING OVER SUCCESSORS


 


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.


 


OPTION TO PURCHASE THE PROPERTY


 


Option
to Purchase the Property. Tenant shall have the option to purchase the property
after the first 3 years of the lease. Tenant must not be in default to exercise
this option after the third year. Purchase Price of the property, if option is
exercised by the Tenant will be the cost of the property to the Landlord, plus
closing costs at the time of closing, plus the increase in the Consumer Price
Index from January 1, 1999, the beginning of the Lease. Tenant must notify
Landlord by certified mail, if they chose this option to purchase the property
and of the terms and conditions.


 


27

















 


ATTORNEY FEES AND COSTS


 


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.


 


IN
WITNESS WHEREOF, the undersigned has hereunto set his hand and seal on 10th day
of JANUARY 2001.


 


Signed, sealed and delivered in the presence
of:


 


	
  /s/ MARIA M. SUAREZ

  	
   

  	
  LANDLORD:

  
	
  Signature

  	
   

  	
  BONITA RADIATION
  ASSOCIATES,

  a Florida general partnership

  
	
  MARIA M. SUAREZ

  	
   

  	
   

  
	
  Print Name

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel E. Dosoretz,
  Managing Partner

  
	
   

  	
   

  	
   

  
	
  /s/ MARIA M. SUAREZ

  	
   

  	
  TENANT:

  
	
  Signature

  	
   

  	
  21ST CENTURY
  ONCOLOGY, INC.,

  
	
   

  	
   

  	
  a Florida corporation

  
	
  MARIA M. SUAREZ

  	
   

  	
   

  
	
  Print Name

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ James R. Rubenstein

  



 


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