Exhibit 10.58


 


When recorded, return to:


 


Timothy S. Shaw, Esq.

Kirk Pinkerton, P.A.

50 Central Avenue, Suite 700

Sarasota, FL 34236


 


[SPACE
ABOVE FOR RECORDER’S USE ONLY]


 


FIVE- PARTY AGREEMENT


 


This
Five-Party Agreement (this “Agreement”)  dated effective May 5, 2009 is made by and
among CENTRAL MASSACHUSETTS COMPREHENSIVE CANCER CENTER, LLC, a Massachusetts
limited liability company (“CMCC”),
HARRINGTON MEMORIAL HOSPITAL, INC., a Massachusetts nonprofit corporation (“Harrington”), THERIAC ENTERPRISES OF HARRINGTON,
LLC, a Florida limited liability company (“Theriac”)
and BANK OF AMERICA, N.A., a national banking association (“Lender”). This Agreement is further joined
by and consented to by ALLIANCE ONCOLOGY, LLC, a Delaware limited liability
company (“Alliance”)


 


A.                                  Lender is the
owner of a Note (herein, as it may have been or may be from time to time
renewed, extended, amended, supplemented, or restated, called the “Note”)  dated
May 5, 2009, executed by Theriac payable to the order of Lender, in the principal
face amount of $7,040,000.00, bearing interest and payable as therein provided,
secured by, among other things, a Leasehold Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing (herein, as it may have been or
may be from time to time renewed, extended, amended or supplemented, called the
“Mortgage”), recorded or to be
recorded in the Worcester District Registry of Deeds, Massachusetts, covering,
among other property, the land (the “Land”)
described in Exhibit “A” which is attached hereto and incorporated herein by
reference, and the improvements (“Improvements”)
constructed thereon (such Land and Improvements being herein together called
the “Property”);


 


B.                                    CMCC is the
tenant under that certain Ground Lease from Harrington, dated effective
September 16, 2008 (herein, as it may from time to time be renewed, extended,
amended or supplemented, called the “Ground
Lease”), leasing the Demised Premises (including the Land) as
defined in the Ground Lease.


 


C.                                    Theriac is the
sub-tenant under that certain Construction Sublease from CMCC, dated effective
September 16, 2008 (herein, as it may from time to time be renewed, extended,
amended or supplemented, called the “Construction
Sublease”),  leasing the
Demised Premises (including the Land) and also obtaining the right to develop
and construct a medical building


 


1

















 


upon the Land (the “Project”
or “Building”) (collectively the Land, Property, Improvements, Project and
Building being herein together called the “Premises”).


 


D.                                   CMCC is the
sub-subtenant under a lease from Theriac dated effective September 16, 2008
(herein, as it may from time to time be renewed, extended, amended or
supplemented, called the “Facility Lease”),
leasing the first floor of the Building (said portion being herein referred to
as the “Facility Premises”); and


 


E.                                     Harrington is
the sub-subtenant under a lease from Theriac dated effective September 15, 2008
(herein, as it may from time to time be renewed, extended, amended or
supplemented, called the “Office Lease”),
leasing the second floor of the Building (said portion being herein referred to
as the “Office Premises”); and


 


F.                                     Pursuant to an
Implementation and Transfer Agreement (“ITA”), dated January 9, 2008, to which
Alliance is a party, Alliance acquired various rights including the right to
acquire an interest in CMCC and the right to an assignment of CMCC’s rights
under the Facility Lease.


 


NOW, THEREFORE, in
consideration of the mutual agreements herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:


 


1.                                      Subordination by CMCC. CMCC agrees and
covenants that the Facility Lease and the rights of CMCC thereunder, all of
CMCC’s right, title and interest in and to the Facility Premises, are and shall
be subject, subordinate and inferior to (a) the Mortgage and the rights of
Lender thereunder, and all right, title and interest of Lender in the Facility
Premises, and (b) all other security documents now or hereafter securing
payment of any indebtedness of Theriac to Lender which covers or affects the
Premises (the “Security Documents”).


 


CMCC further acknowledges
and agrees that any right CMCC has to mortgage or otherwise encumber CMCC’s
leasehold interest in the Premises under the Ground Lease shall be subject,
subordinate and inferior to (a) the Mortgage and the rights of Lender
thereunder, and all right, title and interest of Lender in the Premises, and
(b) all other Security Documents, now or hereafter securing payment of any
indebtedness of Theriac to Lender which cover or affect the Premises.


 


2.                                      Subordination by Harrington. Harrington
agrees and covenants that the Office Lease and the rights of Harrington
thereunder, all of Harrington’s right, title and interest in and to the Office
Premises, are and shall be subject, subordinate and inferior to (a) the
Mortgage and the rights of Lender thereunder, and all right, title and interest
of Lender in the Premises, and (b) all other Security Documents now or
hereafter securing payment of any indebtedness of Theriac to Lender which cover
or affect the Premises.


 


Harrington further agrees
and covenants that any financing sought by Harrington under Article XIV
(Section 14.1) of the Ground Lease shall be subject, subordinate and inferior
to (a)


 


2

















 


the Mortgage and the rights
of Lender, and all right, title and interest of Lender in the Premises, and (b)
all other Security Documents now or hereafter securing payment of any
indebtedness of Theriac to Lender which cover or affect the Premises.


 


3.                                      Non-Disturbance of CMCC. Lender agrees
that so long as the Facility Lease is in full force and effect and CMCC is not
in default in the payment of rent, additional rent or other payments or in the
performance of any of the other terms, covenants or conditions of the Facility
Lease on CMCC’s part to be performed (beyond the period, if any, specified in
the Facility Lease within which CMCC may cure such default):


 


a.                                      CMCC’s
possession of the Facility Premises under the Facility Lease shall not be
disturbed, diminished, terminated or interfered with by Lender in the exercise
of any of its foreclosure rights under the Mortgage, or conveyance in lieu of
foreclosure; and


 


b.                                     Lender will not
join CMCC as a party defendant for the purpose of terminating CMCC’s interest
and estate under the Facility Lease in any proceeding for foreclosure of the
Mortgage.


 


4.                                      Non-Disturbance of Harrington. Lender agrees
that so long as the Office Lease is in full force and effect and Harrington is
not in default in the payment of rent, additional rent or other payments or in
the performance of any of the other terms, covenants or conditions of the
Office Lease on Harrington’s part to be performed (beyond the period, if any,
specified in the Office Lease within which Harrington may cure such default):


 


a.                                      Harrington’s
possession of the Office Premises under the Office Lease shall not be
disturbed, diminished, terminated or interfered with by Lender in the exercise
of any of its foreclosure rights under the Mortgage, or conveyance in lieu of
foreclosure; and


 


b.                                     Lender will not
join Harrington as a party defendant for the purpose of terminating Harrington’s
interest and estate under the Office Lease in any proceeding for foreclosure of
the Mortgage.


 


5.                                      Attornment by CMCC.


 


a.                                      CMCC covenants
and agrees that in the event of foreclosure of the Mortgage, whether by power
of sale or by court action, or upon a transfer of the Premises by conveyance in
lieu of foreclosure (the purchaser at foreclosure or the transferee in lieu of
foreclosure, including Lender if it is such purchaser or transferee, being
herein called “New Owner”), CMCC
shall attorn to the New Owner as CMCC’s new landlord under the Facility Lease,
and agrees that the Facility Lease shall continue in full force and effect as a
direct lease between CMCC and New Owner upon all of the terms, covenants,
conditions and agreements set forth in the Facility Lease and this Agreement,
except for


 


3

















 


provisions which are
impossible for New Owner to perform; provided, however, that in no event shall
the New Owner be:


 


(i)                                    liable for any
act, omission, default, misrepresentation, or breach of warranty, of any
previous landlord (including Theriac) or obligations accruing prior to New
Owner’s actual ownership of the Premises;


 


(ii)                                 subject to any
offset, defense, claim or counterclaim which CMCC might be entitled to assert
against any previous landlord (including Theriac);


 


(iii)                              bound by any
payment of rent, additional rent or other payments, made by CMCC to any
previous landlord (including Theriac) for more than one (1) month in advance,
except with respect to any security deposit, prepaid escalations and any other
funds turned over to New Owner;


 


(iv)                             bound by any
amendment, or modification of the Facility Lease hereafter made, or consent, or
acquiescence by any previous landlord (including Theriac) under the Facility
Lease to any assignment or sublease hereafter granted, without the written
consent of Lender; or


 


(v)                                liable for any
deposit that CMCC may have given to any previous landlord (including Theriac)
which has not, as such, been transferred to New Owner.


 


b.                                     The provisions
of this Agreement regarding attornment by CMCC shall be self-operative and
effective without the necessity of execution of any new lease or other document
on the part of any party hereto or the respective heirs, legal representatives,
successors or assigns of any such party. CMCC agrees, however, to execute and
deliver upon the request of New Owner, any instrument or certificate upon the
same terms and conditions of the Facility Lease which in the reasonable
judgment of New Owner may be necessary or appropriate to evidence such
attornment, including a new lease of the Facility Premises as provided herein.


 


6.                                      Attornment by Harrington.


 


a.                                      Harrington
covenants and agrees that in the event of foreclosure of the Mortgage, whether
by power of sale or by court action, or upon a transfer of the Premises by
conveyance in lieu of foreclosure, Harrington shall attorn to the New Owner as
Harrington’s new landlord under the Office Lease, and agrees that the Office
Lease shall continue in full force and effect as a direct lease between Harrington
and New Owner upon all of the terms, covenants, conditions and agreements set
forth in the Office Lease and this Agreement, except for provisions which are
impossible for New Owner to perform; provided, however, that in no event shall
the New Owner


 


4

















 


be:


 


(i)                                    liable for any
act, omission, default, misrepresentation, or breach of warranty, of any
previous landlord (including Theriac) or obligations accruing prior to New
Owner’s actual ownership of the Premises;


 


(ii)                                 subject to any
offset, defense, claim or counterclaim which Harrington might be entitled to
assert against any previous landlord (including Theriac);


 


(iii)                              bound by any
payment of rent, additional rent or other payments, made by Harrington to any
previous landlord (including Theriac) for more than one (1) month in advance,
except with respect to any security deposit, prepaid escalations and any other
funds turned over to New Owner;


 


(iv)                             bound by any
amendment, or modification of the Office Lease hereafter made, or consent, or
acquiescence by any previous landlord (including Theriac) under the Office
Lease to any assignment or sublease hereafter granted, without the written
consent of Lender; or


 


(v)                                liable for any
deposit that Harrington may have given to any previous landlord (including
Theriac) which has not, as such, been transferred to New Owner.


 


b.                                     The provisions
of this Agreement regarding attornment by Harrington shall be self-operative
and effective without the necessity of execution of any new lease or other
document on the part of any party hereto or the respective heirs, legal
representatives, successors or assigns of any such party. Harrington agrees,
however, to execute and deliver upon the request of New Owner, any instrument or
certificate upon the same terms and conditions of the Office Lease which in the
reasonable judgment of New Owner may be necessary or appropriate to evidence
such attornment, including a new lease of the Office Premises as provided
herein.


 


7.                                      Estoppel Certificate. CMCC and Harrington agree
to execute and deliver from time to time, upon the request of Theriac or of any
holder(s) of any of the indebtedness or obligations secured by the Mortgage, a
certificate regarding the status of the Ground Lease, Construction Sublease,
Facility Lease and/or Office Lease consisting of statements, if true (or if
not, specifying why not), (a) that the applicable lease is in full force and
effect, (b) the date through which rentals have been paid, (c) the date of the
commencement of the term of the applicable lease, (d) the nature of any
amendments or modifications of the the applicable lease, (e) to the tenant’s
knowledge no default, or state of facts which with the passage of time or
notice (or both) would constitute a default, exists under the applicable lease,
(f) to the tenant’s


 


5

















 


knowledge, no setoffs,
recoupments, estoppels, claims or counterclaims exist against Theriac, and (g)
such other matters as may be reasonably requested.


 


8.                                      Acknowledgment and Agreement by CMCC. Notwithstanding the terms of the Construction
Sublease, the Office Lease or the Facility Lease to the contrary, CMCC
acknowledges and agrees as follows:


 


a.              CMCC
acknowledges that the Mortgage contains an assignment of leases and rents. CMCC
hereby expressly consents to such assignment and agrees that such assignment
shall, in all respects, be superior to any interest CMCC has in the
Construction Sublease or Facility Lease of the Premises subject to the provisions
of this Agreement. CMCC shall not amend or modify either the Construction
Sublease or Facility Lease without the prior written consent of Lender, which
shall not be unreasonably withheld. CMCC shall not cancel either the
Construction Sublease or Facility Lease without the prior written consent of
Lender, which shall not be unreasonably withheld, except in connection with an
exercise of remedies after an event of default pursuant to the terms of the
applicable Construction Sublease or Facility Lease. CMCC shall not prepay any
rents or other sums due under the Facility Lease for more than one (1) month in
advance of the due date therefor, except for a security deposit or rent
escalation, if any.


 


b.             CMCC
acknowledges that Lender, in making any disbursements to Theriac, is under no
obligation or duty to oversee or direct or control the application of the
proceeds of such disbursements, and Lender will incur no obligation or
liability to CMCC in the event such proceeds are used by Theriac for purposes other
than improvement of the Premises, or payments to CMCC under the Construction
Sublease.


 


c.              CMCC
acknowledges that Lender is under no obligation or duty with respect to
construction of the Project, as detailed in the Construction Sublease,
including but not limited to any responsibilities of Theriac under the GC
Contract (as defined in the Construction Sublease). Furthermore, CMCC
acknowledges that Lender does not make any representation, warranty or covenant
to CMCC regarding the construction of the Project by Theriac.


 


d.             CMCC
acknowledges that in the event of a casualty upon the Premises, Theriac’s
obligations regarding any reconstruction of the Building or Improvements (as
defined in the Facility Lease) located upon the Premises shall be limited to the
extent of any available insurance proceeds. Furthermore, in the event the
Lender or New Owner and CMCC enter into a new lease for the Facility Premises,
based upon the default of Theriac or for any reason whatsoever, any requirement
for reconstruction of the Building or Improvements shall not be binding upon
the Lender or the New Owner except to the extent insurance proceeds are
available. In the event insurance proceeds are payable based upon any such
casualty,


 


6

















 


whether Theriac or the
Lender is the tenant under the Construction Sublease with CMCC, any insurance
proceeds shall first be paid to Lender as trustee. The Lender, as trustee,
shall then disburse the proceeds in accordance with the terms herein. In the
event of any excess insurance proceeds, the proceeds shall first be paid to the
Lender in the amount of any outstanding amounts secured by the Mortgage.


 


e.              CMCC agrees
that in the event of any condemnation proceeding affecting all or a portion of
the Premises, the Lender shall be permitted to participate in the proceedings.
CMCC further agrees that as a first charge against any award for an eminent
domain taking of any portion of the Premises, there shall be delivered to the
Lender an amount sufficient, if available, to pay and discharge in full all
obligations of Theriac to the Lender secured by the Mortgage encumbering the
condemned portion of the Premises. Without modifying the first priority for
proceeds to be in favor of the Lender, the balance, if any, of such award shall
be allocated as provided in the Ground Lease, In the event of a partial taking,
and upon the written consent of all of the parties to restore the Premises
remaining after the taking, the condemnation proceeds are to be held by the
Lender as trustee, with first priority for proceeds being in favor of the
Lender and any excess proceeds should be divided between the parties.


 


f.                CMCC
acknowledges that Lender has no responsibility whatsoever to pay any taxes,
assessments or operating expenses related to the Demised Premises, Building,
Premises, Property or Improvements.


 


g.             Notwithstanding
the terms of the Construction Sublease, CMCC acknowledges that in the event
Lender or New Owner and CMCC enter into a new lease for the Premises upon
termination of the Construction Sublease or otherwise, and notwithstanding
Lender’s agreements per Section 3 herein, Lender agrees to obtain CMCC’s
written consent prior to subletting of the Premises, which such consent shall
not be unreasonably withheld. Furthermore, so long as a hospital and adjacent
medical campus are being operated on the property adjacent to the Premises,
Lender and CMCC acknowledge that Lender shall have the right and obligation to
sublet the Premises for health care related services that remain consistent
with Harrington’s not-for-profit status and its adjacent medical campus. Prior
to entering into any sublease of the Premises, Lender shall first obtain the
written consent of CMCC, which if the proposed use remains consistent with the
restrictions provided for herein, such consent shall not be unreasonably
withheld.


 


h.             From and after
the date hereof, in the event of any act or omission by Theriac which would
give CMCC the right, either immediately or after the lapse of time, to terminate
the Construction Sublease or Facility Lease, or to claim a partial or total
eviction, or give rise to any right of offset or claim for damages under the
Construction Sublease or Facility Lease, CMCC will not exercise any such right
(i) until it has given written notice (a “Cure Notice”) of such act or omission
to


 


7

















 


the Lender consistent with
Section 17.2 of the Facility Lease; and (ii) until the same period of time as
is given to Theriac under the applicable lease to cure such act or omission,
plus thirty (30) days, shall have elapsed following such giving of a Cure
Notice to Lender and following the time when Lender shall have become entitled
under the Mortgage to remedy the same. In no event will CMCC exercise any such
right less than thirty (30) days after receipt of a Cure Notice by Lender or
prior to the passage of such longer period of time as may be necessary to cure
or remedy such default, act, or omission including such period of time necessary
to obtain possession of the Premises, Office Lease or Facility Premises and
thereafter cure such default, act or omission, during which period of time
Lender shall be permitted to cure or remedy such default, act or omission.
Lender shall have no duty or obligation to cure or remedy any breach or
default. It is specifically agreed that CMCC shall not, as to Lender, require
cure of any such default which is personal to Theriac, and therefore not
susceptible to cure by Lender.


 


i.                 In the event of
termination of the Construction Sublease or Facility Lease, upon an event of
default which has not been cured, CMCC shall, except as hereinafter provided,
enter into a new lease upon and subject to the same terms as the existing lease
with the Lender for the remainder of the term of the applicable lease,
effective as of the date of such termination of the lease, at the rent and upon
the covenants, agreements, terms, provisions and limitations herein contained
provided the Lender makes written request for such new lease within sixty (60)
days from the date of such termination. The Lender, either as the tenant or
landlord, as applicable, under such new lease, shall have the same rights,
title and interest in and to the Buildings and Improvements on the Premises as
Theriac had under the Facility Lease or Construction Sublease, as applicable.
If the Lender becomes the holder of Theriac’s interest in the Construction
Sublease, its liability extends only so long as it is the holder of the tenant
interest under the Construction Sublease and it shall be released of all
further liability from and after the date of any sale or assignment of such
tenant interest. For purposes of this section, the term “Lender” includes the
Lender’s nominee. If the Lender becomes the holder of Theriac’s interest in the
Facility Lease, its liability extends only so long as it is the holder of the
landlord’s interest under the Facility Lease and it shall be released of all
further liability from and after the date of any sale or assignment of such landlord
interest.


 


j.                 In the event
that Lender notifies CMCC of a default by Theriac under the Mortgage, Note, or
Security Documents and demands that CMCC pay its rent and all other sums due
under the Facility Lease directly to Lender, CMCC shall honor such demand and
pay the full amount of its rent and all other sums due under the Facility Lease
directly to Lender, without offset, or as otherwise required pursuant to such
notice beginning with the payment next due after such notice of default,
without inquiry as to whether a default actually exists under the Mortgage,
Note, Security Documents or otherwise in connection with the Loan, and


 


8

















 


notwithstanding any contrary
instructions of or demands from Theriac.


 


k.              CMCC shall use
reasonable efforts to send a copy of any notice or statement under the
Construction Sublease, Office Lease or Facility Lease to Lender at the same
time such notice or statement is sent to Theriac if such notice or statement
has a material impact on the economic terms, operating covenants or duration of
either lease.


 


l.                 In accordance
with the terms of Section 11.1 of the Facility Lease, CMCC shall be liable to
keep in good order, condition and repair the entire Building and Project,
excepting out only the Office Premises. CMCC agrees that CMCC shall be liable
for CMCC’s proporational share of any costs of maintenance, replacement and
repair of the Building and Project as defined in Section 11.1 of the Facility
Lease.


 


m.           CMCC agrees
that for any insurance policy that CMCC is required to obtain, either as a
landlord or as tenant under the Ground Lease, Construction Sublease or Facility
Lease, such policies shall include a standard mortgagee indorsement in favor of
the Lender (either as loss payee or additional insured dependent on the form of
insurance policy). CMCC agrees that all policies shall be noncancellable
without at least thirty (30) days prior written notice to the Lender.


 


9.                                      Acknowledgment and Agreement by Harrington. Notwithstanding the terms of the Ground Lease, the
Facility Lease or the Office Lease, Harrington acknowledges and agrees as
follows:


 


a.              Harrington
acknowledges that the Mortgage contains an assignment of leases and rents.
Harrington hereby expressly consents to such assignment and agrees that such
assignment shall, in all respects, be superior to any interest Harrington has
in the Office Lease of the Premises subject to the provisions of this
Agreement. Harrington shall not amend or modify any provision of the Office Lease
without the prior written consent of Lender, which shall not be unreasonably
withheld. Harrington shall not cancel the Office Lease without the prior
written consent of Lender, which shall not be unreasonably withheld, except in
connection with an exercise of remedies after an event of default pursuant to
the terms of the Office Lease. Harrington shall not prepay any rents or other
sums due under the Office Lease for more than one (1) month in advance of the
due date therefor, except for a security deposit or rent escalation, if any.


 


b.             Harrington
acknowledges that Lender, in making any disbursements to Theriac, is under no
obligation or duty to oversee or direct or control the application of the
proceeds of such disbursements, and Lender will incur no obligation or
liability to Harrington in the event such proceeds are used by Theriac for
purposes other than improvement of the Premises.


 


c.              Harrington
acknowledges that Lender has no responsibility whatsoever to pay any


 


9

















 


taxes, assessments or
operating expenses related to the Demised Premises, Premises, Property,
Building or Improvements.


 


a.              Harrington
acknowledges that in the event of termination of the Ground Lease and Lender
and Harrington enter into a new lease for the Premises, Lender agrees to obtain
Harrington’s written consent prior to subletting of the Premises, which such
consent shall not be unreasonably withheld. Furthermore, so long as a hospital
and adjacent medical campus are being operated on the property adjacent to the
Premises, Lender and Harrington acknowledge that Lender shall have the right
and obligation to sublet the Premises for health care related services that
remain consistent with Harrington’s not-for-profit status and its adjacent
medical campus. Prior to entering into any sublease of the Premises, Lender
shall first obtain the written consent of Harrington, which if the proposed use
remains consistent with the restrictions provided for herein, such consent
shall not be unreasonably withheld.


 


d.             Harrington
acknowledges that in the event of termination of the Ground Lease and Lender or
Lender’s successors or assigns succeed to the rights of CMCC, and in the event
Lender and Harrington enter into a new lease for the Premises, upon the same
terms and conditions of the Ground Lease and Construction Sublease, Harrington
shall have no right to acquire ownership in Lender as provided in Paragraph 6.1
of the Ground Lease.


 


e.              Harrington
acknowledges that Section 15 of the Construction Sublease provides that “[i]n
the event that CMCC is in default under the Ground Lease and Harrington has
elected to terminate the Ground Lease, then Harrington shall provide written
notice of such termination and [the Construction Sublease] and the Ground Lease
shall merge...” By execution hereof, Harrington acknowledges that in the event
Harrington terminates the Ground Lease, Harrington shall comply with the
requirement for a new lease per the terms of Section 9(h) below. Notwithstanding anything herein to the
contrary, Harrington agrees to notify Lender in writing in advance of any
termination of the Ground Lease for any reason whatsoever.


 


f.                From and after
the date hereof, in the event of any act or omission by Theriac which would
give Harrington the right, either immediately or after the lapse of time, to
terminate the Office Lease, or to claim a partial or total eviction, or give
rise to any right of offset or claim for damages under the Office Lease,
Harrington will not exercise any such right (i) until it has given written
notice (a “Cure Notice”) of such act or omission to the Lender consistent with
Section 17.2 of the Office Lease; and (ii) until the same period of time as is
given to Theriac under the Office Lease to cure such act or omission, plus
thirty (30) days, shall have elapsed following such giving of a Cure Notice to
Lender and following the time when Lender shall have become entitled under the
Mortgage to remedy the same. In no event will Harrington exercise any such
right less than thirty (30) days after


 


10














 


receipt of a Cure Notice by
Lender or prior to the passage of such longer period of time as may be
necessary to cure or remedy such default, act, or omission including such
period of time necessary to obtain possession of the Office Premises and
thereafter cure such default, act or omission, during which period of time
Lender shall be permitted to cure or remedy such default, act or omission.
Lender shall have no duty or obligation to cure or remedy any breach or
default. It is specifically agreed that Harrington shall not, as to Lender,
require cure of any such default which is personal to Theriac, and therefore
not susceptible to cure by Lender.


 


g.             In the event of
termination of the Office Lease or the Ground Lease, upon an event of default
which has not been cured, or in the event the Ground Lease and Construction
Sublease merge, Harrington shall, except as hereinafter provided, enter into a
new lease upon the same terms and conditions with the Lender for the remainder
of the term of the applicable lease, effective as of the date of such
termination of the lease, at the rent and upon the covenants, agreements,
terms, provisions and limitations herein contained provided the Lender makes
written request for such new lease within sixty (60) days from the date of such
termination. The Lender, either as the tenant or landlord, as applicable, under
such new lease, shall have the same rights, title and interest in and to the
Buildings and Improvements as Theriac had under the Office Lease or as CMCC had
under the Ground Lease, as applicable. For purposes of this section, the term “Lender”
includes the Lender’s nominee. If the Lender becomes the holder of Theriac’s
interest in the Office Lease, its liability extends only so long as it is the
holder of the landlord’s interest under the Office Lease and it shall be
released of all further liability from and after the date of any sale or
assignment of such landlord interest.


 


h.             In the event
that Lender notifies Harrington of a default by Theriac under the Mortgage, Note,
or Security Documents and demands that Harrington pay its rent and all other
sums due under the Office Lease directly to Lender, Harrington shall honor such
demand and pay the full amount of its rent and all other sums due under the
Office Lease directly to Lender, without offset, or as otherwise required
pursuant to such notice beginning with the payment next due after such notice
of default, without inquiry as to whether a default actually exists under the
Mortgage, Note, Security Documents or otherwise in connection with the Loan,
and notwithstanding any contrary instructions of or demands from Theriac.


 


i.                 Harrington
shall use reasonable efforts to send a copy of any notice or statement under
the Ground Lease or Office Lease to Lender at the same time such notice or
statement is sent, if such notice or statement has a material impact on the
economic terms, operating covenants or duration of either lease.


 


j.                 In accordance
with the terms of Section 11.1 of the Office Lease, Harrington shall be
liable to keep in good order, condition and repair the entire Building and


 


11

















 


Project, excepting out only
the Facility Lease. Harrington agrees that Harrington shall be liable for
Harrington’s proporational share of any costs of maintenance, replacement and
repair of the Building as defined in Section 11.1 of the Office Lease.


 


k.              Harrington
agrees that in the event of any condemnation proceeding affecting all or a
portion of the Premises, the Lender shall be permitted to participate in the
proceedings. Harrington further agrees that as a first charge against an award
for an eminent domain taking of any portion of the Premises, there shall be
delivered to the Lender an amount sufficient to pay and discharge, if available,
in full all obligations of Theriac to the Lender secured by the Mortgage
encumbering the condemned portion of the Premises. Without modifying the first
priority for proceeds to be in favor of the Lender, the balance, if any, of
such award shall be allocated as provided in the Ground Lease. In the event of
a partial taking, and upon the written consent of all of the parties to restore
the Premises remaining after the taking, the condemnation proceeds are to be
held by the Lender as trustee, with first priority for proceeds being in favor
of the Lender and any excess proceeds should be divided between the parties.


 


l.                 Harrington
agrees that in the event Excess Insurance Proceeds are payable under the terms
of Article XXVIII of the Ground Lease, the terms of the Ground Lease are
hereby modified to provide that the priority of proceeds should be as follows: “First,
to any leasehold mortgagee in the amount of any outstanding amounts secured by
its leasehold mortgage; Second, to Harrington in the amount of any then
outstanding Additional Rent owed; and Third, the balance of the proceeds shall
be split between Harrington and CMCC on a pro-rata basis depending upon when
the termination date occurs in relation to the Term of the Lease”.


 


m.           Harrington
agrees that for any insurance policy that Harrington is required to obtain,
either as a landlord or a tenant under the Ground Lease or Office Lease, such
policies shall include a standard mortgagee indorsement in favor of the Lender
(either as loss payee or additional insured dependent on the form of insurance
policy). Harrington agrees that all policies shall be noncancellable without at
least thirty (30) days prior written notice to the Lender.


 


10.        Acknowledgment and Agreement by Theriac to CMCC. Theriac, as Landlord under the Facility Lease and
Mortgagor under the Mortgage, acknowledges and agrees for itself and its
representatives, successors and assigns, that: (a) this Agreement does not
constitute a waiver by Lender of any of its rights under the Mortgage, Note, or
Security Documents, nor does this Agreement in any way release Theriac from its
obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage, Note, or Security Documents; (b) the
provisions of the Mortgage, Note, and Security Documents remain in full force
and effect and must be complied with by Theriac; and (c) CMCC is hereby
authorized to pay its rent and all other sums due under the Facility Lease
directly to Lender upon receipt of a notice as set forth in Section 8(i)


 


12

















 


above from Lender and that
CMCC is not obligated to inquire as to whether a default actually exists under
the Mortgage, Note and Security Documents. Theriac hereby releases and discharges
CMCC of and from any liability to Theriac resulting from CMCC’s payment to
Lender in accordance with this Agreement. Theriac represents and warrants to
Lender that a true and complete copy of the Facility Lease has been delivered
by Theriac to Lender.


 


11.        Acknowledgment and Agreement by Theriac to Harrington. Theriac, as Landlord under the Office Lease and
Mortgagor under the Mortgage, acknowledges and agrees for itself and its
representatives, successors and assigns, that: (a) this Agreement does not
constitute a waiver by Lender of any of its rights under the Mortgage, Note, or
Security Documents, nor does this Agreement in any way release Theriac from its
obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage, Note, or Security Documents; (b) the
provisions of the Mortgage, Note, and Security Documents remain in full force
and effect and must be complied with by Theriac; and (c) Harrington is
hereby authorized to pay its rent and all other sums due under the Office Lease
directly to Lender upon receipt of a notice as set forth in Section 9(i) above from
Lender and that Harrington is not obligated to inquire as to whether a default
actually exists under the Mortgage, Note and Security Documents. Theriac hereby
releases and discharges Harrington of and from any liability to Theriac
resulting from Harrington’s payment to Lender in accordance with this
Agreement. Theriac represents and warrants to Lender that a true and complete
copy of the Office Lease has been delivered by Theriac to Lender.


 


12.        Option to Purchase by Harrington. CMCC granted
Harrington the option to purchase the CMCC Interests (as defined herein) by an
Option and Purchase Agreement dated effective September 15th, 2008. Furthermore,
Harrington hereby acknowledges that the Theriac Purchase Price (as defined in
the Option and Purchase Agreement), payable to Theriac, is considered a
receivable of the Lender and in the event Lender notifies Harrington to pay the
Theriac Purchase Price directly to Lender, Harrington shall honor such demand
and pay the full amount of the Theriac Purchase Price directly to Lender,
without offset and notwithstanding any contrary instructions of or demands from
Theriac.


 


For purposes of this
section, the “CMCC Interests” shall be defined as follows:


 


(i) CMCC’s right, title
and interest in and to the Demised Premises, and


 


(ii) all of CMCC’s
right, title and interest as tenant under the Ground Lease.


 


In the event Harrington
exercises the option to purchase the CMCC Interests but fails to also exercise
the “Theriac Purchase Option” (as defined in the Option and Purchase
Agreement), Harrington shall thereby only acquire possession of the CMCC
Interests and not possession of the “Theriac Interest” (as defined in the
Option and Purchase Agreement). In such event, Harrington shall agree to the
following terms:


 


13

















 


(a) Theriac shall make
a full and complete attornment to Harrington so as to establish direct privity between
Theriac and Harrington with respect to the Construction Sublease; and


 


(b) All rights and
obligations of Theriac under the Construction Sublease, including without
limitation, Theriac’s rights to quiet possession and enjoyment of the Premises,
shall continue in full force and effect and be enforceable against Harrington
by Theriac with the same force and effect as if the Construction Sublease had
been originally made and entered into directly by and between Harrington, as
lessor thereunder, and Theriac, as lessee.


 


The foregoing provisions
shall apply notwithstanding whether the Construction Sublease or Ground Lease,
as the case may be, may terminate upon the termination of any such leasehold
estate, and shall be self-operative without requiring any further instrument to
give effect to such provisions. Both Theriac and Harrington, however, upon
request of Lender, agree to execute an instrument confirming the foregoing
provisions.


 


13.        Notice regarding Cancellation, Amendment or Modification. All parties hereby agree that there shall be no
surrender, amendment or modification of the Ground Lease, Construction
Sublease, Facility Lease or Office Lease, without the prior written consent of
the Lender, which shall not be unreasonably withheld. All parties further agree
that there shall be no cancellation of the Ground Lease, Construction Sublease,
Facility Lease or Office Lease without the prior written consent of Lender,
which shall not be unreasonably withheld, except in connection with an exercise
of remedies after an event of default pursuant to the terms of the applicable
lease.


 


14.        Lease Status. All parties hereby certify to Lender that
no party to this Agreement has knowledge of any default on the part of any
other party or parties under either the Ground Lease, Construction Sublease,
Office Lease or the Facility Lease, that all leases are bona fide and contain
all of the agreements of the parties thereto with respect to the leasing and
subleasing of the Premises, and that all of the agreements and provisions
therein contained are in full force and effect.


 


15.        Notices. All notices, requests,
consents, demands and other communications required or which any party desires
to give hereunder shall be in writing and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by expedited delivery service with
proof of delivery, or by registered or certified United States mail, postage
prepaid, at the addresses specified at the end of this Agreement (unless
changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein. Notwithstanding the foregoing, no
notice of change of address shall be effective except upon receipt. This Section 15
shall not be construed in any way to affect or impair any waiver of notice or demand
provided in this Agreement or in the Ground Lease, Construction Sublease,
Facility Lease, Office Lease or in any document evidencing, securing or
pertaining to the Mortgage or Note or to require giving of notice or demand to
or upon any person in any situation or for any reason.


 


14

















 


16.        Amendment of Facility Lease to Correct Error in Description. Theriac and CMCC hereby agree that the first
sentence of Paragraph 1.1 of the Facility Lease is hereby modified as follows:
the term “the second floor of the Building” is deleted and amended to read: “the
first floor of the Building”.


 


17.        Amendment of Commencement Date of Ground Lease.
Notwithstanding anything to the contrary contained in the Ground Lease, the
Commencement Date under the Ground Lease shall be the earlier of the effective
date of this Five-Party Agreement or the date a Certificate of Occupancy is
issued by the Town of Southbridge, Massachusetts for either the Building or the
Facility Premises.


 


18.        Amendment of Commencement Date of Construction Sublease, Facility Lease
and Office Lease. Notwithstanding
anything to the contrary contained in the Construction Sublease, Facility Lease
or Office Lease, the Commencement Date under the Construction Lease, Facility
Lease and Office Lease shall be the earlier of the effective date of this
Five-Party Agreement or the date a Certificate of Occupancy is issued by the
Town of Southbridge, Massachusetts for either the Building or the Facility
Premises and the term shall expire on the day before the thirtieth (30th) anniversary of the
Commencement Date.


 


19.        Independent Covenant. All parties
hereby agree that the obligations of each tenant under the Ground Lease,
Construction Sublease, Office Lease and Facility Lease, including the
obligation to pay any Rent and/or Additional Rent, and the obligations of each
respective landlord, are independent and not mutually dependent covenants and
the failure of a landlord to perform any obligation under any of the respective
leases will not justify or empower any tenant to withhold Rent, Additional Rent
or to terminate the respective lease(s).


 


20.        Chapter 363 Asset Sale  - All parties
hereby agree that in the event of a bankruptcy filing by any landlord under the
Ground Lease, Construction Sublease, Office Lease or Facility Lease, such
landlord shall not use an asset sale under Section 363 of the Bankruptcy
Code to void or in any way impair a tenant’s interest in the applicable lease.
Any tenant under any such lease is further prohibited from acquiescing in a
rejection or disafirmance of the lease under Section 365(h) of the
Bankruptcy Code. Any tenant must also agree to timely object to any attempt by
a landlord’s bankruptcy trustee to sell any portion of the Premises free and
clear of any such lease under Section 363(f) of the Code. In
addition, in the event of any such asset sale under Section 363 of the
Bankruptcy Code, Lender shall be entitled to object to any such proceeding.


 


21.        Miscellaneous.


 


a.              This Agreement
supersedes any inconsistent provision of the Ground Lease, Construction
Sublease, Office Lease or Facility Lease.


 


b.             Nothing
contained in this Agreement shall be construed to derogate from or in any way
impair, or affect the lien, security interest or provisions of the Mortgage,
Note, or Security Documents.


 


15

















 


c.              This Agreement
shall inure to the benefit of the parties hereto, their respective successors
and permitted assigns, and any New Owner, and its heirs, personal
representatives, successors and assigns; provided, however, that in the event
of the assignment or transfer of the interest of Lender, all obligations and
liabilities of the assigning Lender under this Agreement shall terminate, and
thereupon all such obligations and liabilities shall be the responsibility of
the party to whom Lender’s interest is assigned or transferred; and provided
further that the interests of CMCC or Harrington under this Agreement may not
be assigned or transferred without the prior written consent of Lender.


 


d.             THIS AGREEMENT
AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION SHALL BE GOVERNED BY THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS AND APPLICABLE UNITED STATES FEDERAL LAW
EXCEPT ONLY TO THE EXTENT, IF ANY, THAT THE LAWS OF THE STATE IN WHICH THE
PREMISES IS LOCATED NECESSARILY CONTROL.


 


e.              The words “herein”,
“hereof, “hereunder” and other similar compounds of the word “here” as used in
this Agreement refer to this entire Agreement and not to any particular section
or provision.


 


f.                This Agreement
may not be modified orally or in any manner other than by an agreement in
writing signed by the parties hereto or their respective successors in
interest.


 


g.             If any
provision of the Agreement shall be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not apply to or affect any other provision hereof, but this Agreement
shall be construed as if such invalidity, illegality, or unenforceability did
not exist.


 


h.             This Agreement
will be recorded in the real property records of Worcester County,
Massachusetts.


 


23.        Dispute
Resolution Provision.


 


This paragraph, including
the subparagraphs below, is referred to as the “Dispute Resolution Provision.”
This Dispute Resolution Provision is a material inducement for the parties
entering into this agreement.


 


(a)         This Dispute
Resolution Provision concerns the resolution of any controversies or claims
between the parties, whether arising in contract, tort or by statute, including
but not limited to controversies or claims that arise out of or relate to: (i) this
agreement (including any renewals, extensions or modifications); or (ii) any
document related to this agreement (collectively a “Claim”). For the purposes
of this Dispute Resolution Provision only, the term “parties” shall include any
parent corporation, subsidiary or


 


16

















 


affiliate of the Lender
involved in the servicing, management or administration of any obligation
described or evidenced by this agreement.


 


(b)        At the request
of any party to this agreement, any Claim shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code)
(the “Act”). The Act will apply even though this agreement provides that it is
governed by the law of a specified state.


 


(c)         Arbitration
proceedings will be determined in accordance with the Act, the then-current rules and
procedures for the arbitration of financial services disputes of the American
Arbitration Association or any successor thereof (“AAA”), and the terms of this
Dispute Resolution Provision. In the event of any inconsistency, the terms of
this Dispute Resolution Provision shall control. If AAA is unwilling or unable
to (i) serve as the provider of arbitration or (ii) enforce any
provision of this arbitration clause, the Lender may designate another
arbitration organization with similar procedures to serve as the provider of
arbitration.


 


(d)        The arbitration
shall be administered by AAA and conducted, unless otherwise required by law,
in any U.S. state where real or tangible personal property collateral for this
credit is located or if there is no such collateral, in the state specified in
the governing law section of this agreement. All Claims shall be determined by
one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000),
upon the request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within ninety (90) days of
the demand for arbitration and close within ninety (90) days of commencement
and the award of the arbitrator(s) shall be issued within thirty (30) days
of the close of the hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional sixty
(60) days. The arbitrator(s) shall provide a concise written statement of
reasons for the award. The arbitration award may be submitted to any court
having jurisdiction to be confirmed and have judgment entered and enforced.


 


(e)         The arbitrator(s) will
give effect to statutes of limitation in determining any Claim and may dismiss
the arbitration on the basis that the Claim is barred. For purposes of the
application of any statutes of limitation, the service on AAA under applicable
AAA rules of a notice of Claim is the equivalent of the filing of a
lawsuit. Any dispute concerning this arbitration provision or whether a Claim
is arbitrable shall be determined by the arbitrator(s), except as set forth at
subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of this agreement.


 


(f)           This paragraph
does not limit the right of any party to: (i) exercise self-help remedies,
such as but not limited to, setoff; (ii) initiate judicial or non-judicial
foreclosure against any real or personal property collateral; (iii) exercise
any judicial or power of sale rights, or (iv) act in a court of law to
obtain an interim remedy, such as but not limited to,


 


17

















 


injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary
remedies.


 


(g)        The filing of a
court action is not intended to constitute a waiver of the right of any party,
including the suing party, thereafter to require submittal of the Claim to
arbitration.


 


(h)        Any arbitration
or trial by a judge of any Claim will take place on an individual basis without
resort to any form of class or representative action (the “Class Action
Waiver”). Regardless of anything else in this Dispute Resolution Provision, the
validity and effect of the Class Action Waiver may be determined only by a
court and not by an arbitrator. The parties to this Agreement acknowledge that
the Class Action Waiver is material and essential to the arbitration of
any disputes between the parties and is nonseverable from the agreement to
arbitrate Claims. If the Class Action Waiver is limited, voided or found
unenforceable, then the parties’ agreement to arbitrate shall be null and void
with respect to such proceeding, subject to the right to appeal the limitation
or invalidation of the Class Action Waiver. The Parties acknowledge and agree that under no circumstances will a
class action be arbitrated.


 


(i)            By agreeing to
binding arbitration, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Claim. Furthermore, without
intending in any way to limit this agreement to arbitrate, to the extent any
Claim is not arbitrated, the parties irrevocably and voluntarily waive any
right they may have to a trial by jury in respect of such Claim. This waiver of
jury trial shall remain in effect even if the Class Action Waiver is
limited, voided or found unenforceable. WHETHER
THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE
AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE
RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.


 


24.      Alliance
Joinder and Consent. Each of the
parties hereto accepts and agrees to the Alliance Joinder and Consent and the
provisions thereof. Each of the parties hereto agrees that Alliance Oncology,
LLC, a Delaware limited liability company (“Alliance”) shall have all of the rights
and remedies set forth in that certain Implementation and Transfer Agreement,
dated January 9, 2008, by and among Alliance Imaging, Inc., a
Delaware business corporation, Alliance, Radiation Therapy Services, Inc.,
a  Florida corporation, Harrington
and CMCC (the “ITA”) (including without limitation under Section 7
thereof), notwithstanding any contrary provision in the Ground Lease, the
Construction Sublease, the Facility Lease, the Office Lease, or the Mortgage,
Note, or Security Documents, or any other agreement, but subject to the
provisions of the below Joinder and Consent.


 


(Signature Pages to Follow)


 


18














 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and sealed as of
the date first above written.


 


	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A., a
  national banking association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William R. Schroeder

  
	
   

  	
   

  	
   

  	
  William R. Schroeder

  
	
   

  	
   

  	
   

  	
  As its Senior Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ADDRESS OF LENDER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank of America, N.A.

  13099 U.S. Highway 41 SE, 2nd Floor

  Fort Myers, Florida 33907

  
	
   

  	
   

  	
   

  	
   

  
	
  STATE OF FLORIDA

  COUNTY OF LEE

  	
   

  	
   

  	
   

  



 


The foregoing instrument was
acknowledged before me this 27 day of May, 2009 by William R. Schroeder, as
Senior Vice President of Bank of America, N.A., a national banking association,
on behalf of the association. He is personally known to me or has
produced
                                              
as identification.


 


	
   

  	
   

  	
  /s/ Nancy L. Turner

  
	
   

  	
   

  	
  Printed Name:

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Serial Number (if any):

  
	
   

  	
   

  	
  My Commission Expires:

  



 


[SEAL]


 


19

















 


	
   

  	
   

  	
  CMCC:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CENTRAL MASSACHUSETTS
  COMPREHENSIVE CANCER CENTER, LLC, a Massachusetts limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: New England Radiation
  Therapy Management Services, Inc., a Massachusetts corporation, as its
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David N.T. Watson

  
	
   

  	
   

  	
  Print Name:

  	
  DAVID N.T WATSON

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  	
   

  
	
   

  	
  ADDRESS OF CMCC:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 


COMMONWEALTH
OF MASSACHUSETTS


 


County of LEE, ss: FC


 


On this 27 day of May, 2009,
before me, the undersigned Notary Public, personally appeared DAVID WATSON
proved to me through satisfactory evidence of identification, namely a driver’s
license issued by the STATE OF FC, to be the person whose name is signed on the
preceding document, and acknowledged to me that he signed it voluntarily for
its stated purpose as VP of New England Radiation Therapy Management Services, Inc.,
a Massachusetts corporation, as Manager of Central Massachusetts Comprehensive
Cancer Center, LLC, a Massachusetts limited liability company, on behalf of the
corporation and the company.


 


	
  [SEAL]

  	
   

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  My Commission Expires:
  2/26/12

  



 


20

















 


	
   

  	
  HARRINGTON:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HARRINGTON MEMORIAL
  HOSPITAL, INC., a

  Massachusetts nonprofit corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Edward Moore

  
	
   

  	
   

  	
  Name:

  	
  Edward Moore

  
	
   

  	
   

  	
  Title:

  	
  CEO/President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul R. Jalbert

  
	
   

  	
   

  	
  Print Name:

  	
  PAUL R. JALBERTS

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ADDRESS OF HARRINGTON:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


COMMONWEALTH
OF MASSACHUSETTS


 


County of Worcester, ss:


 


On this 28th day of May 2009, before me, the
undersigned Notary Public, personally appeared Edward Moore, proved to me
through satisfactory evidence of identification, namely a driver’s license
issued by the Commonwealth of Massachusetts, to be the person whose name is
signed on the preceding document, and acknowledged to me that he signed it
voluntarily for its stated purpose as CEO/President of Harrington Memorial
Hospital, Inc., a Massachusetts corporation, on behalf of the corporation.


 


	
  [SEAL]

  	
   

  	
  /s/ Lynn Anne Zollin

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  My Commission Expires:
  APRIL 21, 2011

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [SEAL]

  



 


County of Worcester, ss:


 


On this 29th day of May 2009, before me, the
undersigned Notary Public, personally appeared Paul R. Jalbert proved to me
through satisfactory evidence of identification, namely a  driver’s license issued by the
Commonwealth of Massachusetts, to be the person whose name is signed on the
preceding document, and acknowledged to me that be signed it voluntarily for
its stated purpose as Treasurer of Harrington Memorial Hospital, Inc., a
Massachusetts corporation, on behalf of the corporation.


 


	
   

  	
   

  	
  /s/ Laura L. Ahmed

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  My Commission Expires:
  1/18/2013

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [SEAL]

  



 


21

















 


	
   

  	
  THERIAC:

  
	
   

  	
   

  	
   

  
	
   

  	
  THERIAC ENTERPRISES OF
  HARRINGTON, LLC, a

  Florida limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DDM LLC, a Florida limited
  liability company, As its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  CHEDA, LLC, a Florida
  limited liability company, As its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  As its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  ADDRESS OF THERIAC: 5292
  Summerlin Commons Way, Suite 1103

  Fort Myers, FL 33907

  



 


STATE OF FLORIDA

COUNTY OF LEE


 


The foregoing instrument was
acknowledged before me this 28th day of May,
2009 by Daniel E. Dosoretz, as Manager of Cheda, LLC, a Florida limited
liability company, as Managing Member of DDM LLC, a Florida limited liability
company, as Manager of Theriac Enterprises of Harrington, LLC, a Florida
limited liability company, on behalf of the companies. He is personally
known to me or has produced
                                                    
as identification.


 


	
   

  	
   

  	
  /s/ Catherine A Newkirk

  
	
   

  	
   

  	
  Printed Name:

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Serial Number (if any):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  My Commission Expires:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [SEAL]

  



 


22

















 


JOINDER AND CONSENT


 


ALLIANCE ONCOLOGY, LLC, a
Delaware limited liability company (“Alliance”) hereby consents to the Five
Party Agreement and acknowledges and agrees that in the event Alliance acquires
the Majority Interest in CMCC, pursuant to the terms of the ITA, or is assigned
CMCC’s interest in the Ground Lease, Construction Sublease, and/or Facility
Sublease, or receives a new lease replacing the Facility Lease in accordance
with the ITA, then Alliance shall abide by all of the rights and obligations of
CMCC hereunder and further agrees to be bound by the terms and provisions of
the Ground Lease (If Alliance becomes tenant thereunder), Construction Sublease
(if Alliance becomes sublandlord thereunder), Facility Lease (If Alliance
becomes subtenant thereunder) and this Five Party Agreement. Notwithstanding
the foregoing, in accordance with Section 7.3.3 of the ITA. Alliance shall
not be required to cure any preexisting default under the Facility Lease, the
Mortgage, the Note, the Security Documents or other financing arrangement, or
any equipment lease, as a condition to or if Alliance obtains the Majority
Interest in CMCC, obtains an assignment of the Facility Lease, or obtains a new
lease replacing the Facility Lease.


 


Furthermore, all parties to
the Five Party Agreement, by acceptance hereof, including Alliance, hereby
acknowledge and agree that the term Building Lease under the ITA means and is
one and the same as the Facility Lease and if Alliance exercices it right,
pursuant to Section 7.3.4.1 of the ITA, to acquire CMCC’s interest under
the Building Lease (also known hereunder as the Facility Lease), and if for any
reason the Facility Lease is not then in effect, Alliance shall have the right
to enter into a new lease for the Premises upon substantially the same terms as
were previously entered into by CMCC and Theriac under the Facility Lease. As
consideration, Alliance acknowledges and agrees that such new lease shall be
subject to the terms of the Lender’s Mortgage, as defined in the Five Party
Agreement, but Alliance shall have the benefit of the nondisturbance provisions
of Section 3 of the Five Party Agreement, as if Section 3 applied to
such new lease.


 


	
   

  	
   

  	
  ALLIANCE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ALLIANCE ONCOLOGY, LLC, a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Name:

  	
  Authorized Signatory

  
	
   

  	
   

  	
  Title:

  	
  EVP, GENERAL COUNSEL &
  SECRETARY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ADDRESS Of ALLIANCE:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


STATE OF DISTRICT &

COUNTY OF COLUMBIA


 


The foregoing instrument was
acknowledged before me this 4  day
of June, 2009 by /s/ Authorized Signatory  as
E V P of Alliance Oncology, LLC, a Delaware limited liability company, on
behalf of the company. He/She is  personally
known to me or has produced [Illegible]  as
identification.


 


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  /s/ Mary F. Vincent

  
	
   

  	
   

  	
  Printed Name: MARY F.
  VINCENT

  
	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Serial Number (if any):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  My Commission Expires: March 31,
  2013

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [SEAL]

  



 


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EXHIBIT “A”


 


LEGAL DESCRIPTION OF THE LAND


 


A certain lease area located
within the land of Harrington Memorial Hospital, Inc., Commonwealth of
Massachusetts, County of Worcester in the Town of Southbridge, located on the
easterly side of Sayles Street and shown on a plan entitled “Plan Showing
Improvements Within Lease Area” Harrington Memorial Hospital Sayles Street
Southbridge, MA scale l”=20’ dated April 6, 2009 by Harry R. Feldman, Inc.,
bounded and described as follows:


 


Commencing at the
intersection of the northwesterly sideline of Main Street and the easterly sideline
of Sayles Street, thence running S 22° 09’ 05” W, a distance of 143.90 feet
along the easterly sideline of Sayles Street to the point of beginning.


 


Thence turning and running S
68° 05’ 38” E, a distance of 109.09 feet along land of Southbridge Interfaith
Hospitality Network, Inc. and land of Gladys E. Proper to a point;


 


Thence turning and running S
35° 27’ 08” W, a distance of 25.97 feet along land of Karl E. Langevin and
Claire P. Langevin to a steel rod;


 


Thence turning and running S
48° 20’ 55” E, a distance of 79.50 feet along said land of Langevin to a steel
rod;


 


Thence turning and running S
49° 14’ 38” E, a distance of 100.26 feet along land of Domenica M. DiGregorio
to a point;


 


Thence turning and running S
50° 58’ 33” E, a distance of 97.90 along land of Elaine Derosier to an iron
rod;


 


Thence running S 50° 58’ 33”
E, a distance of 40.01 feet through land of Harrington Memorial Hospital, Inc.
to a point;


 


Thence turning and running S
38° 44’ 17” W, a distance of 98.52 feet through land of said Harrington
Memorial Hospital, Inc. to a point;


 


Thence turning and running S
79° 10’ 48” W, a distance of 68.08 feet to a point;


 


Thence turning and running S
85° 24’ 14” W, a distance of 46.39 feet to a point;


 


Thence turning and running N
73° 05’ 55” W, a distance of 15.89 feet to a point;


 


Thence turning and running N
80° 15’ 50” W, a distance of 59.43 feet to a point;


 


Thence turning and running N
86° 40’ 42” W, a distance of 87.32 feet to a point;


 


Thence turning and running S
87° 34’ 44” W, a distance of 17.63 feet to a point;


 


25

















 


Thence turning and running S
60° 56’ 16” W, a distance of 24.40 feet to a point;


 


Thence turning and running S
46° 16’ 26” W, a distance of 67.26 feet
to a point;


 


Thence turning and running S
04° 02’ 52” E, a distance of 6.50 feet to a point;


 


Thence turning and running S
46° 16’ 26” W, a distance 30.59 feet to a point;


 


Thence turning and running S
64° 12’ 39” W, a distance of 17.36 feet to a point;


 


Thence turning and running N
88° 42’ 31” W, a distance of 18.82 feet to a point;


 


Thence turning and running N
68° 00’ 53” W, a distance of 14.97 feet to a point;


 


Thence turning and running N
54° 20’ 35” W, a distance of 9.51 feet to a point on the easterly sideline of
Sayles Street;


 


The last 14 courses are
through land of Harrington Memorial Hospital, Inc.


 


Thence turning and running N
22° 09’ 05” E, a distance of 255.02 feet along said sideline of Sayles Street
to a drill hole in concrete bound;


 


Thence turning and running S
67° 55’ 15” E, a distance of 150.00 feet along land of Octavio Aguilar to a
steel rod;


 


Thence turning and running N
22° 09’ 05” E, a distance of 50.00 feet along land of Octavio Aguilar to a pk
nail in concrete;.


 


Thence turning and running N
67° 55’ 15” W, a distance of 150.00 feet along land of Octavio Aguilar to a
drill hole on the easterly sideline of Sayles Street;


 


Thence turning and running N
22° 09’ 05” E, a distance of 152.00 feet along the easterly sideline of Sayles
Street to the point of beginning.


 


Containing an area of 94,003
square feet or 2.158 acres.


 


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