Exhibit 10.43


 


LEASE


 


THIS LEASE (“Lease”) is made
and entered into as of the
                  
day of June, 2005, by and between, ARIZONA RADIATION ENTERPRISES, LLC, an
Arizona limited liability company, whose business address is 7337 East Thomas
Road, Scottsdale, Maricopa County, Arizona (“Landlord”), and ARIZONA RADIATION
THERAPY MANAGEMENT SERVICES, INC., an Arizona corporation, c/o 2234
Colonial Blvd. Fort Myers, Fl. 33097 (“Tenant”).


 


WITNESSETH:


 


ARTICLE 1


TERMS


 


1.1 Premises.
Landlord hereby demises and leases to Tenant and Tenant hereby hires and rents
from Landlord the premises located at 7337 East Thomas Road, Scottsdale,
Arizona, (“Premises”) upon the terms, covenants and conditions set forth
herein, which Premises has a Floor Area containing the approximate square
footage of 6,204 square feet.


 


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


 


1.3 Commencement of Term.
The commencement of the Term of this Lease under which Tenant shall be
obligated to commence payment of Minimum Rent and Additional Rent shall be on
or about June 1, 2005 (“Commencement Date”). The commencement and ending
of the term will be placed in an addendum to the lease after the certificate of
occupancy is issued.


 


1.4 Length of the Term.
The term of this lease period is for Seven years (7) years (“Term”). The
starting date of this lease is the Commencement Date and, unless this Lease is
renewed in accordance with Article 4 below, the ending date is on or about
May 31, 2012 (“Expiration Date”).


 


ARTICLE 2


RENT


 


2.1 Rent. Minimum
rent shall be $16,949.77 per month plus applicable rental tax (“Minimum Rent”).
Tenant shall pay to Landlord without previous demand thereof and without any
abatement, reduction, setoff or deduction whatsoever, the Minimum Rent
(together with any applicable sales tax and local taxes if the same are ever
required by law), payable in equal monthly installments, in advance, on the
first day of each and every calendar month throughout the Term of this Lease.
The Minimum Rent shall commence to accrue on the Commencement Date. The first
such monthly installments of Minimum Rent shall be due and payable to Landlord
no later than the Commencement Date and each subsequent monthly installment
shall be due and payable to Landlord on the first day of each and every month
following the Commencement Date during the Term hereof. If the Commencement
Date is a date other than the first day of the month, Minimum Rent and other
charges for the period commencing with and including the Commencement Date
through the first day of the following month shall be prorated at the rate of
one-thirtieth (1/30) of the monthly Minimum Rent per day.


 


In addition, Tenant shall
pay as Additional Rent monthly payments of applicable taxes, assessments and
insurance on the property . This amount will be of 1/12 of the bill for real
estate


 

















 


and assessment taxes and
1/12 of the bill on insurance. Estimated figures for taxes and insurance
monthly rate will be produced within ten (10) days after the signing of
this Lease. Each year Landlord will produce any insurance, real estate tax and
assessment bills to the Tenant to show how the estimated taxes and insurance
were computed as Additional Rent.


 


2.1.1 There will be an
increase in the Minimum Rent starting on the first anniversary of the lease if
the Consumer Price Index increases. Minimum Rent specified in this lease shall
be subject to increase in accordance with changes in the Consumer Price Index
for Urban Wage Earners and Clerical Workers (CPI-W) as promulgated by the
Bureau of Labor Statistics of the United States Department of Labor, using the
year 2005 as a base of 100. On each anniversary date there will be a rent
adjustment based on the percentage increase in the Consumer Price Index. If the
Consumer Price Index goes down the rent will not change for that year. Consumer
Price Index increases will apply on the anniversary date of each year of the
Commencement Date. The percentage increase in the Consumer Price Index will
increase the minimum rent for that year.


 


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


 


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


 


2.3    Interest
on Past Due Rent. If Tenant shall fail to pay, when the same is due and
payable, Minimum Rent, or Additional Rent, such unpaid amounts shall bear
interest from the due date thereof to the date of payment, at the prime
interest rate of the Chase Manhattan Bank, N.A. as of such due date, plus 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 at 2234 Colonial Blvd., Fort Myers, FL 33907.


 


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


 


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ARTICLE 3


NET LEASE


 


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


 


3.1.1 Parking lot repairs,
maintenance and replacements.


 


3.1.2 Installation of
outside and inside lighting for parking.


 


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


 


ARTICLE 4 

OPTION TO RENEW


 


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


 


ARTICLE 5 

INSURANCE AND INDEMNITY


 


5.1 Liability Insurance.
Tenant shall, during the entire term hereof, keep in full force and effect
bodily injury and public liability insurance in an amount not less than FIVE
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 Arizona law.


 


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


 


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


 


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


 


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


 


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


 


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The defaulting party shall
also pay all costs, expenses and reasonable attorney’s fees that may be
incurred or paid by the other party in enforcing the covenants and agreements
in this Lease.


 


ARTICLE 6 

UTILITIES


 


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


 


ARTICLE 7 

SUBORDINATION AND ATTORNMENT


 


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


 


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


 


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


 


ARTICLE 8


ASSIGNMENT AND SUBLETTING


 


Tenant may not assign this
lease in whole or in part, nor sublet all or any portion of the Premises,
without the prior written consent of Landlord in each instance. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. It is
understood that Landlord may refuse to grant consent to any assignment or
subletting by Tenant with or without cause and without stating in its refusal
to grant such consent the reasons for which it refuses to grant such consent
and may not, under any circumstances, be required or compelled to grant such
consent. No assignment, under letting, occupancy or collection shall be deemed
acceptance of the assignee,


 


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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 Premises, and all right
and interest of the Landlord in this Lease, may be conveyed, assigned or
encumbered at the sole discretion of the Landlord at any time.


 


ARTICLE 9

FACILITIES


 


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


 


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ARTICLE 10


TENANTS FIXTURES AND IMPROVEMENTS


 


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


 


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


 


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right or remedy of Landlord,
Landlord may bond or discharge the same by paying the amount claimed to be due,
and the amount so paid by Landlord, including reasonable attorneys’ fees
incurred by Landlord either in defending against such lien or in procuring the
bonding or discharge of such lien, together with interest thereon at the
Default Rate, shall be due and payable by Tenant to Landlord as Additional
Rent.


 


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


 


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


 


ARTICLE 11 

MAINTENANCE AND REPAIR OF PREMISES


 


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


 


ARTICLE 12 

SIGNS


 


On or before the
Commencement Date, Tenant will at its sole cost and expense purchase and cause
to be installed upon the exterior of the Premises a sign which in all respects
conforms to the criteria established by Landlord. However, Tenant will not
install said sign without first obtaining Landlord’s written approval thereof.
Thereafter, Tenant will not place or suffer to be


 


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placed or maintain on any
portion of the exterior (including windows) of the Premises any sign, awning,
canopy or advertising matter or other thing of any kind, without first
obtaining Landlord’s written approval and consent. Without limitation as to the
foregoing, Landlord specifically reserves the right at any time during the term
of this Lease to require Tenant to remove from the Premises any sign(s) situated
thereon and to replace same with a sign or signs which in all respects conform
to a sign standard designated by Landlord, all of which will be performed at
Tenant’s sole cost and expense. Tenant agrees to maintain any such sign,
awning, canopy, decoration, lettering, advertising matter or other thing as may
be approved in good condition and repair at all times and to repaint or replace
such signs from time to time when reasonably necessary and to illuminate such
signs in accordance with standards established by Landlord from time to time,
including hours of illumination. All signs in addition must be conform to code
and local ordinances rules, laws and regulations.


 


ARTICLE 13 

WASTE AND GOVERNMENTAL REGULATIONS


 


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


 


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


 


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


 


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


 


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ARTICLE 14 

HAZARDOUS MATERIALS


 


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


 


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


 


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Premises and any other
property of whatever nature to their condition existing prior to Tenant’s
Hazardous Materials Activity.


 


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


 


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


 


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


 


ARTICLE 15

DESTRUCTION OF PREMISES


 


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


 


Tenant agrees to notify
Landlord in writing not less than thirty (30) days prior, to the date Tenant
opens for business in the Premises of the actual cost of all permanent
leasehold improvements and betterments installed or to be installed by Tenant
in the Premises (whether same have been paid for entirely or partially by
Tenant), but exclusive of Tenant’s personal property, movable trade fixtures
and inventory. Similar notifications shall be given to Landlord not less than
thirty (30) days prior to the commencement of any proposed alterations,
additions or improvements to the Premises. If Tenant fails to comply, with the
foregoing provisions, any


 


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loss or damage Landlord
shall sustain by reason thereof shall be borne by Tenant and shall be paid
immediately by Tenant upon receipt of a bill therefore and evidence of such
loss, and in addition to any other rights or remedies reserved by Landlord
under this Lease, Landlord’s obligations under this Article to repair,
replace and/or rebuild the Premises shall be deemed inapplicable, and in lieu
thereof, Landlord may, at its election, either restore or require Tenant to
restore the Premises to the condition which existed prior to such loss, and in
either case Tenant shall pay the cost of such restoration.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


annoyance occasioned by any
damage, destruction, repair or restoration. If Minimum Rent is abated there
shall be all corresponding and appropriate reduction made to the Minimum Annual
Volume.


 


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


 


ARTICLE 16 

EMINENT DOMAIN


 


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


 


16.2 Partial Condemnation
of Premises.


 


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


 


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


 


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


 


16.4 Partial Condemnation
of Parking Area. If twenty (20%) percent or more of the common parking
areas at or near the Premises shall be acquired or condemned by eminent domain
for any public or quasi-public use or purpose, then the Tenant shall have the
option to


 


13

















 


cancel and terminate this
Lease upon notice thereof given to the Landlord within ninety (90) days after
the vesting of title in such proceeding.


 


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


 


ARTICLE 17 

DEFAULTS


 


17.1 Events of Default By
Tenant. If (1) Tenant vacates, abandons or surrenders all or any part
of the Premises prior to the expiration of the Term of the Lease or (2) Tenant
fails to fulfill any of the terms or conditions of this Lease or any other
lease heretofore made by Tenant for space in the Premises or (3) the
appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant’s assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant’s assets located
at the Premises, or of Tenant’s interest in this Lease, occurs, or (4) Tenant
or any of its successors or assigns or any guarantor of this Lease (“Guarantor”)
should file any voluntary petition in bankruptcy, reorganization or
arrangement, or an assignment for the benefit of creditors or for similar
relief under any present or future statute, law or regulation relating to
relief of debtors, or (5) Tenant or any of its successors or assigns or
any Guarantor should be adjudicated bankrupt or have an involuntary petition in
bankruptcy, reorganization or arrangement filed against it, or (6) Tenant
shall permit, allow or suffer to exist any lien, judgment, writ, assessment,
charge, attachment or execution upon Landlord’s or Tenant’s interest in this
Lease or to the Premises, and/or the fixtures, improvements and furnishings
located thereon; then, Tenant shall be in default hereunder.


 


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


 


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


 


17.4 Landlord’s Default.
If Tenant asserts that Landlord has failed to meet any of its obligations under
this Lease, Tenant shall provide written notice (“Notice of Default”) to


 


14

















 


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


 


ARTICLE 18 

LANDLORD’S REMEDIES FOR TENANT’S DEFAULT.


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


amount, if any, of the rents
collected on account of the lease or leases of the Premises for each month of
the period which would otherwise have constituted the balance of the Term.


 


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


 


18.3 Waiver of Jury Trial.
To the extent permitted by law, Tenant hereby waives: (a) jury trial in
any action or proceeding regarding a monetary default by Tenant and/or Landlord’s
right to possession of the Premises, and (b) in any action or proceeding
by Landlord for eviction where Landlord has also filed a separate action for
damages, Tenant waives the right to interpose any counterclaim in such eviction
action. Moreover, Tenant agrees that it shall not interpose or maintain any
counterclaim in such damages action unless it pays and continues to pay all
Rent, as and when due, into the registry of the court in which the damages
action is filed.


 


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


 


16

















 


ARTICLE 19

BANKRUPTCY PROVISIONS


 


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


 


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


 


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


 


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


 


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


 


19.2.4 The debtor or trustee
may only assign this Lease if (i) it is assumed and the assignee agrees to
be bound by this Lease, (ii) adequate assurance of future performance by
the assignee is provided, whether or not there has been a default under this
Lease, and (iii) the debtor or trustee has received Landlord’s prior
written consent pursuant to the provisions of this Lease. Any consideration
paid by any assignee in excess of the rental reserved in this Lease shall be
the sole property of, and paid to, Landlord.


 


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


 


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


 


17

















 


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


 


ARTICLE 20 

LIMITATIONS OF LANDLORD’S LIABILITY


 


The term “Landlord” as used
in this Lease, so far as covenants or obligations on the part of the Landlord
are concerned shall be limited to mean and include only a ground lessee if the
named Landlord herein is holding the premises under a ground lease for so long
as the named Landlord is the holder of such ground lease interest or the owner
or owners of the fee simple of the Premises; and in the event of transfer or
transfers of either the ground leasehold interest to any other person or the
transfer of title to the fee premises to any person, the Landlord herein named
(and in the case of subsequent transfers or conveyances the then grantor or
assignor), shall be automatically freed and relieved from and after the date of
such transfer or conveyance or assignment of all liability as respects the performance
of any covenant or obligation on the part of the Landlord contained in this
Lease thereafter to be performed, it being the intention of the parties that
the covenants and obligations to be observed and performed by the-Landlord
shall be binding upon the Landlord only during and in respect of its period of
ownership of either a leasehold interest, or a fee interest as the case may be.
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
Tenant shall, subject to prior rights of any mortgagee of the Premises, look
solely to the estate and property of Landlord in the Premises for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants and conditions of this Lease to be observed
and/or performed by Landlord, and no other assets of Landlord or any principal
of Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant’s remedies.


 


18

















 


ARTICLE 21 

ACCESS BY LANDLORD


 


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


 


ARTICLE 22 

QUIET ENJOYMENT


 


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


 


ARTICLE 23 

MISCELLANEOUS


 


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


 


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


 


19

















 


23.3 Notices.


 


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


 


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


 


	
  Landlord:

  	
  Tenant:

  
	
  ARIZONA
  RADIATION

  	
  ARIZONA

  
	
  ENTERPRISES,
  LLC

  	
  RADIATION

  
	
  C/o
  DDM, LLC

  	
  THERAPY

  
	
   

  	
  MANAGEMENT

  
	
   

  	
  SERVICES, INC

  
	
  2234
  Colonial Blvd.

  	
  2234 Colonial Blvd.

  
	
  Fort
  Myers, Fl. 33097

  	
  Fort Myers, Fl. 33097

  



 


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


 


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


 


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


 


23.6 Broker’s Commission.
The Tenant represents and warrants to Landlord that it has dealt with no real
estate broker, agent, salesperson or finder in connection with this Lease or
the Premises. Notwithstanding the foregoing, Tenant agrees to indemnify, defend
and save the Landlord harmless from all liabilities arising from claims by any
real estate broker or agent


 


20














 


claiming through Tenant.
Such indemnity of Tenant shall include, without limitation, all of attorneys,
fees incurred in connection therewith.


 


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


 


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


 


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


 


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


 


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


 


21

















 


ARTICLE 24


TENANT’S PROPERTY


 


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


 


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


 


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


 


ARTICLE 25


HOLDING OVER SUCCESSORS


 


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


 


ARTICLE 26


ATTORNEY FEES AND COSTS


 


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


 


22

















 


ARTICLE 27


VENUE


 


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


 


IN WITNESS WHEREOF, the
undersigned has hereunto set his hand and seal on
                  
day of June, 2005.


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Arizona Radiation
  Enterprises, LLC, an Arizona limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: DDM LLC, a Florida
  limited liability company, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Dr. Daniel E.
  Dosoretz, Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Arizona Radiation Therapy
  Management Services, Inc., an Arizona corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: David Koeninger,
  Vice-President

  
					



 


23

















 


FIRST
AMENDMENT TO LEASE


 


This FIRST AMENDMENT TO
LEASE dated December 31, 2009 (this “Amendment”), is by and between
ARIZONA RADIATION ENTERPRISES, LLC, an Arizona limited liability company (“Landlord”),
and ARIZONA RADIATION THERAPY MANAGEMENT SERVICES, INC., an Arizona
corporation (“Tenant”).


 


WITNESSETH:


 


WHEREAS, Landlord and Tenant
are parties to that certain Lease dated June 1, 2005 (the “Lease”), for
certain real property commonly known as 7337 East Thomas Road, Scottsdale,
Arizona; 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. Liability Insurance.
The second sentence of the second paragraph of Section 5.1 of the Lease is
hereby deleted in its entirety and replaced with the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1

















 


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


 


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.]


 


2

















 


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:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARIZONA RADIATION
  ENTERPRISES, LLC, an Arizona limited liability company

  
	
  



  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARIZONA RADIATION THERAPY MANAGEMENT
  SERVICES, INC., an Arizona corporation

  
	
   

  	
   

  	
   

  
	
  



  	
   

  	
  By: 

  	
  

  /s/ Bryan J. Carey

  
	
   

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
  Its:

  	
  EVP& CEO

  



 


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