Exhibit 10.40


 


FIRST AMENDMENT TO LEASE


 


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


 


WITNESSETH:


 


WHEREAS, Landlord and Tenant
are parties to that certain Lease dated February 1, 2003 (the “Lease”),
for certain premises containing approximately 5,746 square feet located on the
real property 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 commencing 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 on page 10 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 commencing on page 15
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.


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally
left blank; 

signatures on following page.]


 


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


 


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LEHIGH RADIATION
  ASSOCIATES, 

  a Florida partnership

  
	
  Witness 1:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
  Signature

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Daniel E. Dosoretz, MD

  
	
  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


 


A parcel of land lying in Section 30,
Township 44 South, Range 27 East, Lee County, Florida, being more particularly
described as follows:


 


Commencing at the Southeast
corner of said Section 30; thence North 02 o23’ 20” West along the East Section line
of said Section 30, a distance of 386.49 feet to a point on a curve on the
Northerly right-of-way line of Lee Boulevard, said point being on  a curve to the left, having a radius  of 1,326.24 feet a Delta angle of 29° 20’02”
a chord distance of 671.61 feet and a chord bearing of North 86  °51’ 45” West; thence along said curve an
arc distance of 679.00 feet to a point  on a curve
and the point of beginning of a tract of land herein
described:


 


Thence continue along said
curve having a radius of 1,326.24 feet a Delta angle  of 01 °04’ 05” a chord distance of 24.72 feet and a chord
beating South 77 °56’ 11” West; thence along said curve an arc distance of
24.72 feet to the point of tangency; thence South 77 °24” 09” West a distance
of 150.90 feet; thence North 12 °35’ 51” West a distance of 300.00 feet; thence
North 77 °24’ 09” East a distance of 150.90 feet to the beginning of a curve to
the right having a radius of 1,626.24 feet, a Delta angle of 01 °04’ 05”, a
chord of 30.31 feet; a chord bearing of North 77 °56’ 11” East; thence along
said curve an arc distance of 30.31 feet; thence South 11 °31’ 46” East, a
distance of 300.00 feet to the northerly right-of-way line of Lee Boulevard and
the point of beginning.


 


Less and except the
following described parcel:


 


A strip of land lying over
and across the Southerly 9 feet (as measured at right angles or along radial
lines) of the lands described, in Official Records Book 1806 at Page 3337
of the Public Records of Lee County, Florida and being contiguous with the
Northerly right-of-way line of Lee Boulevard, lying in Section 30,
Township 44 South, Range 27 East, Lee County, Florida. Further described in
Official Records Book 1843, Page 3729 and 3730, of the Public Records of
Lee Country, Florida.


 


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LEASE


 


THIS LEASE (“Lease”) is made
and entered into as of the 1st day of February, by and between, LEHIGH
RADIATION ASSOCIATES, a Florida Partnership, (“Landlord”), and 21ST CENTURY
ONCOLOGY, INC., a Florida corporation, (“Tenant”).


 


W I T N E S S E T H:


 


TERMS


 


Premises. Landlord
hereby demises and leases to Tenant and Tenant hereby hires and rents from
Landlord the Premises upon the terms, covenants and conditions set forth
herein, which Premises has a Floor Area containing the approximate square
footage of 5,746 square feet. The legal description of the property is attached
as Exhibit A.


 


Use. The Premises
are to be used for a medical office and 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, February 1, 2003.


 


Length of the Term. The term of this
lease period is for ten (10) years. The starting date of this lease is February 1,
2003 and the ending date is January 31, 2013.


 


RENT


 


Rent. Minimum Rent
shall be $16,800.00 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 Minimum Rent shall
commence to accrue on the Commencement Date. The first such monthly
installments of Minimum Rent shall be due and payable to Landlord no later than
the Commencement Date and each subsequent monthly installment shall be due and
payable to Landlord on the first day of each and


 

















 


every month following the
Commencement Date during the Term hereof. If the Commencement Date is a date
other than the first day of the month, Minimum Rent and other charges for the
period commencing with and including the Commencement Date through the first
day of the following month shall be prorated at the rate of one-thirtieth
(1/30) of the monthly Minimum Rent per day.


 


In addition, monthly
payments will be made of the real estate taxes, real estate assessments and
insurance on the property. This amount will be of 1/12 of the bill for real
estate and assessment taxes and 1/12 of the bill on insurance. Estimated
figures for taxes and insurance monthly rate will be produced within ten (10) days
after the signing of this Lease. Each year Landlord will produce any insurance,
real estate tax and assessment bills to the Tenant to show how the estimated
taxes and insurance were computed as additional rent. This will be Additional
Rent. Florida sales tax will be paid on the Additional Rent.


 


(2a)      There will be an increase in
the Minimum Rent starting on the first anniversary of the lease if the Consumer
Price Index increases. On February 1, 2004, 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 1998 as a base of 100. On each anniversary date their
will be a rent adjustment based on the percentage increase in the Consumer
Price Index. The minimum will never be less than $16,800.00. 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 other
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
$201,600.00 for each year, unless changed by the increase in the Consumer Price
Index.


 


(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.


 


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(5)        Real Estate tax and
insurance will be included as Additional Rent each and every month. 1/12 of
real estate tax bill and assessments and 1/12 per month of the insurance bill
will be added as Additional Rent each and every month. This must also include
sales tax.


 


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 2234 Colonial Boulevard, Fort Myers, Florida.


 


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.


 


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NET
LEASE


 


Net Lease. This Lease
shall be deemed and construed to be a net Lease and, except as herein otherwise
expressly provided, the Landlord shall receive the fixed Minimum Rent and
Additional Rent and all other payments hereunder to be made by the Tenant
absolutely free from any charges, assessments, imposition, expenses or
deductions of any kind and every kind or nature whatsoever. Tenant is to pay
for all real estate tax and assessments on any and all taxes of any type of
nature. Tenant is to pay for all insurance and any and all costs for repairs,
replacements, maintenance and improvements. Tenant will also pay any and all
expenses for common areas, utilities, and association fees required by the
complex. Tenant will pay for any and all condominium fees required by the
Condominium Association. 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 contrasts for air conditioner and cleaning services, etc.


 


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 two 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 FIVE HUNDRED THOUSAND
DOLLARS ($500,000) / ONE MILLION DOLLARS ($1,000,000) per injury and accident,
respectively; property damage insurance in an amount not less than ONE HUNDRED
THOUSAND DOLLARS ($100,000); and worker’s compensation insurance in the maximum
amount permitted under Florida law.


 


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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 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.


 


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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 occupancy or use by Tenant of the Leased Premises or any part
therof, 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


 


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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, 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 proceeding s 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


 


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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.


 


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.


 


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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.


 


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 material men (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


 


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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 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


 


10

















 


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 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


 


11

















 


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. § 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 ADA within the Premises. Any Alterations to the
Premises made by or on behalf of Tenant for the purpose of complying with the
ADA or which otherwise require compliance with the ADA shall be done in
accordance with this Lease; provided, that Landlord’s consent to such
Alterations shall not constitute either Landlord’s assumption, in whole or in
part, of Tenant’s responsibility for compliance with the ADA, or representation
or confirmation by Landlord that such Alterations comply with the provisions of
the ADA.


 


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.


 


12

















 


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. § 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 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,


 


13

















 


retain an independent
engineer or other qualified consultant or, expert acceptable to Landlord, to
conduct, at Tenant’s expense, an environmental audit of the Premises and
immediate surrounding areas, and the scope of work to be performed by such
engineer, consultant, or expert shall be approved in advance by Landlord, and
all of the engineer’s, consultant’s or expert’s work product shall be made
available to Landlord, (f) at Landlord’s request from time to time,
executed affidavits, representations and the like concerning Tenant’s best
knowledge, and belief regarding the presence of Hazardous Materials in the
Premises, (g) reimburse to Landlord, upon demand, the reasonable cost of
any testing for the purpose of ascertaining if there has been any Release of
Hazardous Materials in the Premises, if such testing is required by any
governmental agency or Landlord’s Mortgagee, (h) upon expiration or
termination of this Lease, surrender the Premises to Landlord free from the
presence and contamination of any Hazardous Materials. Tenant shall indemnify,
protect, defend (by counsel reasonably acceptable to Landlord), and hold
Landlord and free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses and expenses (including attorneys’
fees) or death of or injury to any person or damage to any property whatsoever,
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.


 


14

















 


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.


 


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 I s personal property, movable trade fixtures
and inventory. Similar notifications shall be given to Landlord not less than
thirty (30) days prior to the commencement of any proposed alterations,
additions or improvements to the Premises. If Tenant fails to comply, with the
foregoing provisions, any loss or damage Landlord shall sustain by reason
thereof shall be borne by Tenant and shall be paid immediately by Tenant upon
receipt of a bill therefore and evidence of such loss, and in addition to any
other rights or remedies reserved by Landlord under this Lease, Landlord’s
obligations


 


15

















 


under this Article to
repair, replace and/or rebuild the Premises shall be deemed inapplicable, and
in lieu thereof, Landlord may, at its election, either restore or require
Tenant to restore the Premises to the condition which existed prior to such
loss, and in either case Tenant shall pay the cost of such restoration.


 


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


 


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


 


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


 


(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.


 


16














 


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
damage, including, without limitation, all exterior signs, trade fixtures,
equipment, display cases, furniture, furnishings and other installations of personalty
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.


 


17

















 


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 under Section 1.5 of this Lease shall be
reduced by a fraction, the numerator of which shall be the gross area of the
premises so taken by the condemning authority and the denominator of which
shall be the gross area of the Premises on the date immediately prior to the
effective date of such taking.


 


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.


 


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


 


18

















 


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.


 


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


 


19

















 


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 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


 


20

















 


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) Landlord may re-let
the Premises or any part thereof, alone or together with other


 


21

















 


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.


 


22

















 


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”.


 


23

















 


(7)        The parties agree that
Landlord is entitled to adequate assurance of future performance of the terms
and provisions of this Lease in the event of an assignment under the provisions
of the Bankruptcy Code. For purposes of any such assumption or assignment of
this Lease, the parties agree that the term “adequate assurance” shall include,
without limitation, at least the following: (i) any proposed assignee must
have, as demonstrated to Landlord’s satisfaction, a net worth (as defined in
accordance with generally accepted accounting principles consistently applied)
in an amount sufficient to assure that the proposed assignee will have the
resources to meet the financial responsibilities under this Lease, including
the payment of all Rent; the financial condition and resources of Tenant are
material inducements to Landlord entering into this Lease; (ii) any
proposed assignee must have engaged in the Use described in Section 1.11
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


 


24

















 


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.


 


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


 


25

















 


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.


 


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 between 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.


 


26














 


	
  Landlord:

  	
  Tenant:

  
	
  LeHigh Radiation
  Associates

  	
  21st Century Oncology, Inc.

  
	
  1120 Lee Blvd.

  	
  2234 Colonial Blvd.

  
	
  LeHigh, FL 33936

  	
  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.


 


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, other than CMA Marketing, Inc., and the commission to
said broker shall be borne by Landlord. Notwithstanding the foregoing, Tenant
agrees to indemnify, defend and save the Landlord harmless from all liabilities
arising from claims by any real estate broker or agent claiming through Tenant.
Such indemnity of Tenant shall include, without limitation., all of attorneys,
fees incurred in connection therewith.


 


27

















 


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 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.


 


28

















 


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 term of this Lease against any leasehold
interest or personal property of any kind, owned by or placed in, upon or about
the Premises by the Tenant.


 


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.


 


29

















 


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.


 


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.


 


VENUE


 


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


 


IN WITNESS WHEREOF, the
undersigned has hereunto set his hand and seal on
              
day of
                                                ,
2003.


 


	
  Signed,
  sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Authorized Signatory

  	
   

  	
  LANDLORD:
  

  
	
  Signature

  	
   

  	
  LEHIGH
  RADIATION ASSOCIATES,

  
	
   

  	
   

  	
  a
  Florida Partnership,

  
	
  Authorized
  Signatory

  	
   

  	
   

  
	
  Print
  Name

  	
   

  	
  /s/
  Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel E. Dosoretz, Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Jennifer M. Hobaugh

  	
   

  	
  TENANT:

  
	
  Signature

  	
   

  	
  21ST
  CENTURY ONCOLOGY, INC.,

  
	
   

  	
   

  	
  a
  Florida Corporation

  
	
  Jennifer
  M. Hobaugh

  	
   

  	
   

  
	
  Print
  Name

  	
   

  	
  /s/
  Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel
  E. Dosoretz, President

  



 

















 


EXHIBIT “A”


 


A parcel of land lying in Section 30,
Township 44 South, Range 27 East, Lee County, Florida, being more particularly
described as follows:


 


Commencing at the Southeast
corner of said Section 30; thence North 02 °23’ 20” West along the East Section line
of said Section 30, a distance of 386.49 feet to a point on a curve on the
Northerly right-of-way line of Lee Boulevard, said point being on a curve to
the left, having a radius of 1,326.24 feet a Delta angle of 29 ° 20’02” a chord
distance of 671.61 feet and a chord bearing of North 86 °51’ 45” West; thence
along said curve an arc distance of 679.00 feet to a point on a curve and the
point of beginning of a tract of land herein described:


 


Thence continue along said
curve having a radius of 1,326.24 feet a Delta angle of 01 ° 04’ 05” a chord
distance of 24.72 feet and a chord bearing South 77 ° 56’ 11” West; thence
along said curve an arc distance of 24.72 feet to the point of tangency; thence
South 77 ° 24’ 09” West a distance of 150.90 feet; thence North 12 ° 35’ 51”
West a distance of 300.00 feet; thence North 77 °24’09” East a distance of
150.90 feet to the beginning of a curve to the right having a radius of
1,626.24 feet, a Delta angle of 01 °04’05”, a chord of 30.31 feet; a chord
bearing of North 77 °56’ 11” East; thence along said curve an arc distance of
30.31 feet; thence South 11 °31’ 46 “East, a distance of 300.00 feet to the
northerly right-of-way line of Lee Boulevard and the point of beginning.


 


Less and except the following
described parcel:


 


A strip of land lying over
and across the Southerly 9 feet (as measured at right angles or along radial
lines) of the lands described in Official Records Book 1806 at Page 3337
of the Public Records of Lee County, Florida and being contiguous with the
Northerly right-of-way line of Lee Boulevard, lying in Section 30,
Township 44 South, Range 27 East, Lee County, Florida. Further described in
Official Records Book 1843, Page 3729 and 3730, of the Public Records of
Lee County, Florida.