Exhibit
10.22


 


THIRD
AMENDMENT TO LEASE


 


This THIRD AMENDMENT TO
LEASE dated December 31, 2009 (this “Amendment”), is by and between
THERIAC ENTERPRISES OF HARRINGTON, LLC, a Florida limited liability company (“Landlord”),
and CENTRAL MASSACHUSETTS COMPREHENSIVE CANCER CENTER, LLC, a Florida limited
liability company (“Tenant”).


 


WITNESSETH:


 


WHEREAS, Landlord and Tenant
are parties to that certain Lease dated September 16, 2008, as amended by
that certain Blanket Amendment to Lease dated as of May 5, 2008, as
amended by that certain Second Amendment to Lease dated as of July 1, 2008
(collectively, the “Lease”), for certain real property commonly known as 100
South Street, Second Floor, Southbridge, Massachusetts; 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. The first
clause of the last sentence of Section 5.1.3 of the Lease is hereby
deleted in its entirety and replaced with the following:


 


All policy proceeds will be
used to equip and furnish the Premises as Tenant reasonably deems necessary to
operate the business from the Premises;


 


2.                         Tenant’s
Leasehold Improvements and Trade Fixtures; Landlord’s Lien Waiver. Section 10.3.1
of the Lease is hereby amended by:


 


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


 


(b)                    in the fifth line of such
section, deleting the word “further”;


 


(c)                     in the eighteenth line of
such section, deleting the word “subordinate” and replacing it with “waive”;


 


(d)                    in the twenty-third line of
such section, deleting the words “with Lender”; and


 


(e)                     in the twenty-third through
twenty-fifth lines of such section, deleting the following: “, for so long as
any lender or financier holds any lien, encumbrance of security interest in and
to Tenant’s trade fixtures, equipment, furniture, inventory and apparatus,”.


 


1

















 


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


 


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


 


5.                         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.


 


6.                         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.


 


7.                         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:

  
	
   

  	
   

  	
   

  
	
   

  	
  THERIAC ENTERPRISES OF
  HARRINGTON, LLC, a Florida limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan D Carey

  
	
   

  	
  Name:

  	
  Bryan D Carey

  
	
   

  	
  Its:

  	
  EVP & CFO

  



 


3

















 


SECOND
AMENDMENT TO LEASE


 


This Second Amendment To
Lease, effective as of July 1, 2008 (the “Amendment”) modifies that
certain Lease dated September 16, 2008, as amended by that certain Blanket
Amendment To Lease dated as of May 5, 2008 (the “Lease”) between
Theriac Enterprises of Harrington, LLC, a Florida limited liability company (“Landlord”)
and Central Massachusetts Comprehensive Cancer Center, LLC, a Massachusetts
limited liability company (“Tenant”). Landlord and Tenant agree as
follows:


 


1.                         Terms. This Amendment supplements and modifies the terms of
the Lease and shall be construed as part of that Lease, and the term “Lease”,
wherever used, shall be deemed to include the following terms and conditions.
In the event of any conflict between the terms of this Amendment and the terms
of the Lease, the terms of this Amendment shall control.


 


2.                         Modification. The following provisions within the Lease are modified
as set forth below:


 


Section 1.5
is hereby deleted in its entirety and replaced with the following:


 


1.5 Length of the Term.
The initial term of this Lease is for a period of fifteen (15) years (the “Term”)
beginning on the first day of the month immediately following the Commencement
Date and expiring on the last day of the one hundred eightieth (180th) month thereafter (the “Expiration
Date”), unless extended pursuant to Article 4 below.


 


Section 4.1
is hereby deleted in its entirety and replaced with the following:


 


4.1 Option to Renew.
Provided Tenant has not assigned this Lease nor sublet the Premises, and
provided that Tenant is not in default at the time of giving notice or at the
expiration of the existing Term, Tenant shall have three (3) five (5) year
option(s) to extend the term of this Lease on the same terms and
conditions; including, without limitation, the annual increase in Base Rent as
set forth in Section 2.3 above. In order to exercise this option, the
Tenant must provide written notice of its intent to exercise this Option to
Renew not more than two hundred and seventy (270) days prior to or less than
one hundred eighty (180) days prior to the expiration of the existing Lease
Term.


 


3.                         Effect. Except as modified by this Amendment, each and every
one of the terms, conditions and provisions contained within the Lease shall
continue and remain in full force and effect.


 


[Signature page to follow]


 


1

















 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
  Theriac
  Enterprises of Harrington, LLC, a Florida limited liability company

  
	
   

  	
   

  	
   

  
	
  /s/
  Maria M. Suarez

  	
   

  	
  BY:
  DDM, LLC, a Florida limited liability company

  
	
  Print: 

  	
  Maria
  M. Suarez

  	
   

  	
  Its:
  Manager

  
	
   

  	
   

  	
   

  
	
  /s/
  Debra Sovich

  	
   

  	
  By: Cheda, LLC, a Florida limited liability
  company

  
	
  Print: 

  	
  Debra
  Sovich

  	
   

  	
  Its: Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
   

  	
  Daniel
  E. Dosoretz, its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  10/16/09

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  Witnesses:



  	
   

  	
  Central Massachusetts
  Comprehensive Cancer Center, LLC,

  a Massachusetts limited liability company

  
	
   

  	
   

  	
   

  
	
  /s/ Joseph Biscardi

  	
   

  	
  By: 

  	
  /s/ Jeff Pakrosnis

  
	
  Print: 

  	
  Joseph Biscardi

  	
   

  	
   

  	
  Jeff Pakrosnis, its
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Simon Benson

  	
   

  	
  Date: 

  	
  10/8/09

  
	
  Print: 

  	
  Simon Benson

  	
   

  	
   

  



 


2

















 


BLANKET
AMENDMENT TO LEASES


 


This is a Blanket Amendment
(“Amendment”), dated effective May 5, 2008, amending the following
Leases:


 


(i) that certain Ground
Lease dated September 16, 2008 (the “Ground Lease”) between
Harrington Memorial Hospital, Inc., a Massachusetts nonprofit corporation
(“Harrington”), and Central Massachusetts Comprehensive Cancer Center,
LLC, a Massachusetts limited liability company (“CMCC”);


 


(ii) that certain
Construction Sublease dated September 16, 2008 (the “Construction
Sublease”) by and between Harrington, CMCC and Theriac Enterprises of
Harrington. LLC, a Florida limited liability company (“Theriac”);


 


(iii) that certain
Lease dated September 16, 2008 (the “CMCC Lease”) between Theriac
and CMCC; and


 


(iv) that certain Lease
dated September 15, 2008 (the “Harrington Lease”) between Theriac
and Harrington.


 


The Ground Lease,
Construction Sublease, CMCC Lease, and Harrington Lease shall be collectively
referred to as the “Leases”. Harrington, CMCC and Theriac agree as
follows:


 


1.                         Terms. This Amendment supplements and modifies the terms of
the Leases and shall be construed as part thereof, and the term “Leases”,
wherever used, shall be deemed to include the following terms and conditions.
In the event of any conflict between the terms of this Amendment and the terms
of the Leases, the terms of this Amendment shall control.


 


2.                         Modification. The Leases are hereby modified as follows:


 


The legal description for
the “Land” attached as Exhibit A to the Ground Lease, which is referred to
as the “Demised Premises” in the Construction Sublease and the “Land” in the
CMCC Lease and Harrington Lease, is hereby replaced with the legal description
attached hereto as Exhibit A-1.


 


3.                         Effect. Except as modified by this Amendment, each and
every one of the terms, conditions and provisions contained within the Leases
shall continue and remain in full force and effect.


 


[Signature
page(s) to follow]


 

















 


	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  HARRINGTON:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Harrington Memorial
  Hospital, Inc., a Massachusetts nonprofit corporation

  
	
   

  	
   

  	
   

  
	
  /s/ James Bunnell

  	
   

  	
  By: 

  	
  /s/ Edward Moore

  
	
  Print: 

  	
  James Bunnell

  	
   

  	
  Print: 

  	
  Edward Moore 

  
	
   

  	
   

  	
   

  	
  Its: 

  	
  CEO/President

  
	
  /s/ James Bunnell

  	
   

  	
   

  	
   

  
	
  Print: 

  	
  James Bunnell

  	
   

  	
  Date: 

  	
  5-12-09

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By: 

  	
  /s/ [Illegible]

  
	
  Print: 

  	
  Authorized Signatory

  	
   

  	
  Print: 

  	
  [Illegible]

  
	
   

  	
   

  	
   

  	
  Its: 

  	
  Treasurer

  
	
  /s/ Authorized Signatory

  	
   

  	
   

  	
   

  
	
  Print: 

  	
  Authorized Signatory

  	
   

  	
  Date:

  	
  5-12-09

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CMCC:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Central Massachusetts
  Comprehensive Cancer Center, LLC,

  a Massachusetts limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: New England Radiation
  Therapy Management Services, Inc.,

  a Massachusetts corporation, as its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ James E. Bunnell

  	
   

  	
  By:

  	
  /s/ David NT Watson

  
	
  Print: 

  	
  James E. Bunnell

  	
   

  	
  Print:

  	
  David NT Watson

  
	
   

  	
   

  	
   

  	
  Its:

  	
  Vice President

  
	
  /s/ Jelena Ahlborn

  	
   

  	
   

  	
   

  
	
  Print: 

  	
  Jelena Ahlborn

  	
   

  	
  Date:

  	
  5/26/09

  



 


2

















 


	
   

  	
   

  	
   

  	
  THERIAC:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Theriac Enterprises of
  Harrington, LLC, a Florida limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ James e. Bunnell

  	
   

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

  
	
  Print:

  	
  James e. Bunnell

  	
   

  	
   

  
	
  

  /s/ Jelena Ahlborn

  	
   

  	
  By:
  Cheda LLC, a Florida limited liability company, its Managing Member

  
	
  Print: 

  	
  Jelena Ahlborn

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
   

  	
  Daniel E. Dosoretz, its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
  5/9/09

  



 


3

















 


EXHIBIT A-l


 


LEGAL
DESCRIPTION OF LEASE AREA


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5














 


Execution
Copy


 


LEASE


 


THIS LEASE (“Lease”)
is made and entered into as of the “Effective Date” (as defined in Section 23.17
below), by and between, Theriac Enterprises of Harrington, LLC, a Florida
limited liability company, whose business address is 5292 Summerlin Commons
Way, Suite 1103, Attn: Cathy Newkirk Fort Myers, Florida 33907 (‘‘Landlord”),
and Central Massachusetts Comprehensive Cancer Center, LLC, a Florida limited
liability company having its principal office at 2234 Colonial Blvd., Fort
Myers, Florida 33907 (“Tenant”).


 


Reference is made to that
certain Ground Lease (the “Ground Lease”) dated September 9, 2008 by and
between Harrington Memorial Hospital, Inc., a Massachusetts nonprofit
corporation, having its principal office at 100 South Street, Southbridge,
Massachusetts (“Harrington”) as the ground landlord (the “Ground Lease
Landlord”) and Tenant as the ground tenant with respect to a certain 2.1554
acre parcel of land located in Southbridge, Massachusetts more fully described
in the Ground Lease (the “Land”);


 


Reference is further made to
that certain Construction Sublease (the “Construction Sublease”) dated
as of even date by and between Tenant as the sublessor and Landlord as the
sublessee pursuant to which Landlord acquired the right to develop, finance and
construct on the Land a building containing 20,045 square feet of useable area
(the “Building”) together with a parking area and other improvements
related thereto (the “Improvements”) all pursuant to Plans and
Specifications referred to and defined in the Construction Sublease. The Land,
Building and Improvements are sometimes referred to herein as the “Project”,
The parties acknowledge that Landlord’s rights to the Premises derive from its
interest as the subtenant under the Construction Sublease. If at any time after
the execution of this Lease, the Construction Sublease is terminated (a “Sublease
Termination”) but the Ground Lease remains in full force and effect by virtue
of the Tenant curing any default thereunder caused by the Sublease Termination,
Tenant shall thereafter be deemed to be the Landlord under this Lease, or, at
Tenant’s election, the interests shall be merged such that the Tenant shall
have the right to possession of the Premises subject and pursuant to the terms
and conditions of the Ground Lease.


 


WITNESSETH:


 


ARTICLE 1

TERMS


 


1.1 Premises.
Landlord hereby demises and leases to Tenant and Tenant hereby hires and rents
from Landlord the second floor of the Building to be constructed by Landlord on
the Land, which Premises shall contain approximately 10,949 gross square feet,
as more particularly described in Exhibit A to this Lease, upon the
terms, covenants and conditions set forth below, and deliver the Premises in
the condition set forth in the Construction Sublease. During the period of
building construction but prior to commencement of the Term of this Lease, upon
the Tenant’s reasonable advance request and Landlord approval, which shall not
be unreasonably withhold, Tenant, and its employees, contractors and agents,
shall have reasonable access to the


 

















 


Building and Premises for purposes of planning or commencing any of its
pre-occupational work on the Premises not otherwise the responsibility of the
Landlord, so long as such entry shall not disrupt or delay construction of the
Building.


1.2 Tenant’s Proportionate Share. The “Tenant’s
Proportionate Share” of the Building is projected to be fifty-four and
62/100 percent (54.62%) based on the rentable square footage of the Premises
divided by the rentable square footage of the Building. For purposes of the
foregoing, “rentable square footage” is defined as the dedicated and usable
space within the Premises, plus a pro rata allocation
of any common areas. Upon completion of the Building, the Landlord and Tenant
shall remeasure the rentable square footage of each demised premises within the
building and determine the final Tenant’s Proportionate Share.


 


1.3 Use. The Premises
are to be used for medical office and ancillary services.


 


1.4 Commencement of Term.
The date on which Tenant shall take possession of and become responsible for
insuring and maintaining the Premises, and further, be obligated to commence
payment of Additional Rent (the “Commencement Date”) shall be the date a
Certificate of Occupancy is issued (by local governmental entity) for the
Building shell (the “Completion Date”).


 


1.5 Length of the Term.
The term of this Lease is for a period of thirty (30) years (the “Term”)
beginning on first day of the month immediately following the Commencement Date
and expiring on the last day of the three hundred and sixtieth (360th ) month thereafter (the “Expiration Date”).


 


ARTICLE 2

RENT


 


2.1 Base Rent. Base
rent for the Premises (“Base Rent”) shall be established as soon as
possible after the Completion Date based on the following:


 


2.1.1 Landlord shall engage
an impartial appraiser licensed in Massachusetts specializing in the evaluation
of oncology treatment centers, reasonably acceptable to both Landlord and
Tenant, who shall determine the Fair Market Rental Value of the Premises (“FMV”)
based on the terms of this Lease. In addition, Landlord’s independent
accountant shall determine and certify to Tenant the total cost of developing
the underlying land and constructing the Building and Project (which shall
include, but not be limited to, hard and soft construction costs, legal fees
for the negotiation of the several leases and related documents, the financing
documents, and the construction contract and any related documents, accounting
fees, financing costs and any other costs related to the Project), along with
any carrying costs, including, but not limited to, any third party debt and
insurance premium costs, paid by the Landlord between the Completion Date and
the Commencement Date (the “Construction Costs”), which Construction
Costs are anticipated to be approximately Eight Million Five Hundred Thousand
Dollars ($8,500,000.00). The first year’s Base Rent shall be calculated using
the higher of (i) the FMV or (ii) the Construction Costs less the
Specialty Costs (as hereinafter defined) times the Tenant’s Proportionate Share
plus the Specialty Costs times eight and one-half


 


2

















 


percent (8.50%). “Specialty
Costs” shall mean (i) the actual and demonstrated costs incurred by
Landlord in constructing the Building, Premises and improvements that were
necessary specifically for the Building to house a radiation therapy facility,
including without limitation, the concrete bunker, wall linings, and other
Building design elements for the radiation therapy facility; and, (ii) the
actual and demonstrated costs incurred by Landlord in the construction and
completion of the Premises in accordance with the requirements of this Lease,
which are in excess of the costs which would have been incurred to finish the
Premises to the same “shell” level of finish required of Landlord with respect
to the Premises covered by the second floor space lease of even date between
Landlord and Harrington, which costs are anticipated to be approximately One
Million Five Hundred Thousand Dollars ($1,500,000.00). By way of example only,
the Base Rent calculated in accordance with subsection (ii) above
utilizing the anticipated costs would be determined as follows: $8,500,000.00 -
$1,500,000,00 = $7,050,000.00 x 54.62% = $3,823,400.00 + $1,500,000.00 =
$5,323,400.00 x 8.5% = $452,489.00 per annum or $41.32 per gross square foot.


 


2.1.2
Upon determination of the FMV, the Construction Costs and the Specialty Costs,
the Landlord shall promptly provide the Tenant a copy of the FMV appraisal as
well as the Landlord’s accountant’s detailed summary of the calculation of the
Construction Costs and the Specialty Costs. The Tenant shall have the right, at
its own expense, to retain its own accountant or auditor to review all of the
Landlord’s receipts and other proof of expenditures to confirm the calculation
of the Construction Costs and the Specialty Costs. If Tenant’s accountant
determines that the audited Construction Costs calculation is at variance with
the original calculation by Five Percent (5%) or greater, Landlord shall have
the option to either (i) average the costs of Landlord’s accounting and
Tenant’s accounting; or (ii) electing to have Landlord and Tenant select a
mutually acceptable independent auditor who shall be given full access to all
of the Landlord’s books and records related to the Construction Costs. The
independent auditor’s determination of the actual Construction Costs shall be
final; in addition, both Landlord and Tenant shall share the costs of such
independent auditor equally.


 


2.1.3
Tenant shall pay the Base Rent to Landlord without previous demand thereof and
without any abatement, reduction, setoff or deduction whatsoever except for any
adjustment or reduction warranted as a result of an audit of the Construction
Costs (as set forth in Sections 2.1.2 and 2.1.3 above) or any adjustment that
may be applicable under the Side Agreement Concerning Capital Costs of the
instant date entered into by and between the Tenant and CMCC and consented to
by the Landlord. The Base Rent (together with any applicable sales tax and
local taxes if the same are ever required by law), shall be payable in equal
monthly installments, in advance, on the first day of each and every calendar
month throughout the Term of this Lease. The Base Rent shall commence to accrue
on the date which is ninety (90) days following the Commencement Date (the “Rent
Commencement Date”). The first such monthly installment of Base Rent shall
be due and payable to Landlord no later than the Rent Commencement Date and
each subsequent monthly installment shall be due and payable to Landlord on the
first day of each and every calendar month following the Rent Commencement Date
during the Term hereof. If the Rent Commencement Date is a date other than the
first day of the month, Base Rent and other charges for the period commencing
with and including the


 


3

















 


Rent Commencement Date
through the first day of the following month shall be prorated at the rate of
one-thirtieth (1/30) of the monthly Base Rent per day.


 


2.2 Additional Rent.
In addition, Tenant shall pay monthly as Additional Rent payments equal to
Tenant’s Proportionate Share of the Landlord’s reasonable estimate of the
applicable taxes, assessments and insurance on the Building, except as
otherwise provided below. This amount will be l/12th of anticipated bill for
annual real estate and assessment taxes and 1/12th of the estimated annual bill
on insurance. The 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. In the event of any overage or underage due to the actual
amounts owed and the payments made based on the estimated amounts during any
Lease year, Landlord shall reimburse to Tenant the amount of any overage paid
by Tenant or Tenant shall pay to Landlord the amount of any underage due from
Tenant in either case within thirty (30) days of the delivery of the bills to
Tenant as herein provided.


 


2.3 Annual Increase in
Base Rent. There will be an increase in the Base Rent starting on the first
anniversary of this Lease. Base Rent specified in this Lease shall be increased
by three percent (3.0%) each year of the Term. On each anniversary date of the
Commencement Date, Base Rent for the upcoming year will be determined by
multiplying the immediately preceding year’s Base Rent times one hundred three
percent (103.0%).


 


2.4 Late Charge.
Tenant shall pay to Landlord a late charge equal to five percent (5%) of the
monthly payment of Base 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.


 


2.5 Interest on Past Due
Rent. If Tenant shall fail to pay, when the same is due and payable, Base
Rent, or Additional Rent, such unpaid amounts shall bear interest from the due
date thereof to the date of payment, at the lower of (i) the prime interest
rate of the JPMorgan Chase Bank as of such due date, plus ten percent (10%); or
(ii) the maximum amount permitted to be charged under Massachusetts law (“Default
Rate”).


 


2.6 Definition of Rent.
The term “Rent” shall refer collectively to Base 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 delivered by Tenant to: 5292
Summerlin Commons Way, Suite 1103, Attn: Cathy Newkirk Fort Myers, Florida
33907.


 


2.7 Rent Taxes. In
addition to Base 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


 


4

















 


other similar charges now
existing or hereafter imposed, based upon the privilege of leasing the space
leased hereunder or based upon the amount of rent collected therefore.


 


ARTICLE 3

NET LEASE


 


3.1 Net Lease. This
Lease shall be deemed and construed to be a triple net lease and, except as
herein otherwise expressly provided, the Landlord shall receive the fixed Base
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
the Tenant’s Proportionate Share of all real estate taxes and assessments and
any and all taxes of any nature applicable to the Building. In addition, Tenant
is to pay the Tenant’s Proportionate Share of all insurance and any and all
costs for repairs, replacements, maintenance and improvements to the Building,
expenses for common areas, utilities and association fees, if any. Tenant also
is responsible for:


 


3.1.1
Tenant’s Proportionate Share of any parking lot repairs, maintenance and
replacements.


 


3.1.2
The entire amount due for security, pest control or contracts for air
conditioning and cleaning services, etc., if any, for the Premises.


 


3.1.3
The Tenant’s Proportionate Share of any Imposition and Operating expenses
payable under the Ground Lease as passed on by the Ground Lease Landlord to the
Landlord.


 


3.1.4
If separately metered Tenant shall arrange for and pay 100% of the utilities
used within the Premises, otherwise Tenant’s share of any utility charge to be
paid to the Landlord shall be based on a reasonable estimation of Landlord of
the higher utility costs to be used by the Tenant in the operation of the
radiation oncology facility that may be in excess of the Tenant’s Proportionate
Share.


 


ARTICLE 4


OPTION TO RENEW


 


4.1.1 Intentionally
Omitted.


 


ARTICLE 5


INSURANCE AND INDEMNITY


 


5.1 Insurance. At all
times during the Term, Tenant will carry and maintain, at Tenant’s expense, on
an occurrence basis, the following insurance, in the amounts and on the forms
specified below or such other amounts and on such other forms as Landlord may
from time to time reasonably request, with insurance companies satisfactory to
Landlord:


 


5.1.1
Fire and extended coverage insurance insuring the full replacement cost of the
Building in which the Premises is located, its equipment, and the Common Areas
(as more particularly described in the Ground Lease) which Tenant shall secure;


 


5

















 


5.1.2
Comprehensive general liability insurance, together with a broad form
comprehensive general liability endorsement, covering bodily injury to or
personal injury to or death of any person, or more than one (1) person, or
for damage to property in an amount of not less than $1 million combined single
limit each Occurrence/General Aggregate and including a per location General
Aggregate endorsement. All such insurance will be written on the most current
occurrence ISO Commercial General Liability Form including without
limitation, personal injury and contractual liability coverage for the
performance by Tenant of the indemnity agreements set for in this Lease, which
insurance shall include a waiver of subrogation rights in favor of Landlord and
include Landlord and Ground Lease Landlord as additional insureds;


 


5.1.3
Insurance covering all of Tenant’s furniture and fixtures, machinery,
equipment, and any other personal property owned and used in Tenant’s business
and found in on, or about the Premises, and any leasehold improvements to the
Premises in an amount not less than the full replacement cost under Standard
Fire and Extended Coverage Policy and all other risks of direct physical loss
as insured against under Special Form (“all risk of direct physical loss”
coverage). All such insurance will be written on the most current ISO
Commercial Property Form. All policy proceeds will be used for the repair or
replacement of the property damaged or destroyed; except, however, if this
Lease ceases under the provisions of Article 15, Tenant will be entitled
to any proceeds resulting from damage to Tenant’s furniture and fixtures,
machinery, equipment, and any other personal property;


 


5.1.4
Worker’s compensation insurance insuring against and satisfying Tenant’s
obligations and liabilities under the worker’s compensation laws of the
Commonwealth of Massachusetts, and Employer’s Liability Insurance in the limits
required by the laws of the Commonwealth of Massachusetts, but in an amount not
less than $500,000.00 aggregate;


 


5.1.5
Such other insurance (including without limitation plate glass insurance), in
such amounts as Landlord or its lender may reasonably require of Tenant upon
thirty (30) days’ prior written notice.


 


5.2 Forms of Policies.
All policies of liability insurance which Tenant is obligated to maintain
according to this Lease (other than any policy of worker’s compensation
insurance) will name Landlord and such other persons or firms as Landlord
specifies from time to time as additional insured’s. Certificates of insurance
on the most current ACORD  form
(together with copies of the endorsements naming Landlord and any others
specified by Landlord as additional insured’s) and evidence of the payment of
all premiums of such policies will be delivered to Landlord prior to the
earlier of the Commencement Date or Tenant’s occupancy of the Premises and from
time to time at least thirty (30) days prior to the expiration of the term of
each such  policy. Tenant’s
insurer shall have a Best Rating of at least “A-” and be assigned a financial
size category of at least Class X as rated in the most recent edition of “Best’s
Key Rating Guide” for insurance companies. All liability policies maintained by
Tenant will contain a provision that Landlord and any other additional insured’s,
although named as an insured, will nevertheless be entitled to recover under
such policies for any loss sustained by Landlord and such other additional
insured’s, its agents, and employees as a result of the acts or omissions of
Tenant. All


 


6

















 


such policies maintained by
Tenant will provide that they may not be terminated or amended except after
thirty (30) days’ prior written notice to Landlord. AH required insurance
policies maintained by Tenant must be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord carries or
may carry.


 


5.3 Waiver of Subrogation.
Landlord and Tenant each waive any and all rights to recover against the other,
or against the officers, directors, shareholders, partners, joint venturers,
employees, agents, customers, invitees, or business visitors of such other
party, for any loss or damage to such waiving party arising from any cause
covered by any property or other insurance required to be carried by such party
pursuant to this Article 5 or any other property insurance actually
carried by such party. Landlord and Tenant from time to time will cause their
respective insurers to issue appropriate waiver of subrogation rights
endorsements to all property insurance policies carried in connection with the
Premises or the Building in which the Premises are located, or the contents
thereof. Tenant agrees to cause all other occupants of the Premise claiming by,
under, or through Tenant to execute and deliver to Landlord such a waiver of
claims and to obtain such waiver of subrogation rights endorsements.


 


5.4 Indemnification.
Tenant shall indemnify, defend and save Landlord and Ground Lease 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 except which result from
Landlord’s gross negligence or willful misconduct. Landlord shall indemnify,
defend and save Tenant and Ground Lease 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 occasioned in whole
or in part by any negligent act or omission by Landlord, its agents,
contractors, employees, servants or concessionaires. In case the indemnifying
party shall be made a party to any litigation commenced by or against the other
party, then such other party shall protect and hold the indemnified party
harmless and pay all costs and attorney’s fees incurred by the indemnified
party in connection with such litigation, and any appeals thereof. The
defaulting party shall also pay all costs, expenses and reasonable attorney’s
fees that may be incurred or paid by the other party in enforcing the covenants
and agreements in this Lease.


 


ARTICLE 6

UTILITIES


 


6.1 Utilities. Tenant
shall be solely responsible for and shall promptly pay all charges for water,
gas, electricity, garbage, and any other utility used and consumed in the
Premises. 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, unless due to the gross negligence or willful
misconduct of Landlord.


 


7

















 


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 provided that the lessor or mortgagee or other lien holder thereunder
agrees not to disturb Tenant’s possession of the Premises or rights under this
Lease so long as Tenant is not in default hereunder beyond any applicable
notice and cure period, provided that Landlord makes best efforts to secure for
Tenant a usual and customary non-disturbance agreement from any leasehold
mortgagee. This Section shall be self-operative and binding upon Tenant
and any such lessor, mortgagee or other lien holder, 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 non-disturbance, 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 on the Premises to any mortgage or deed of
trust that Landlord may have placed upon the Premises.


 


ARTICLE 8


ASSIGNMENT AND SUBLETTING


 


Except as herein provided,
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 and
Ground Lease Landlord. Further, notwithstanding the foregoing, such consent
shall not be required if such assignment or sublease is from Tenant to a wholly
owned subsidiary of Tenant or to a wholly owned subsidiary of Tenant’s parent,
if any, provided that the Ground Lease Landlord has been consulted and is
satisfied with the entity or entities guarantying the assignee’s performance
under this Lease. The consent by Landlord or Ground Lease Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment or subletting. 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 assignment or subleasing includes those by operation
of law, legal process, receivership, bankruptcy or otherwise, whether voluntary
or involuntary. Landlord, by its acceptance hereof, acknowledges that Tenant
may mortgage or collaterally assign its interest in and to this Lease and the
leasehold estate created hereunder to institutional lenders providing financing
to Tenant, to Tenant’s parent, if any, or to any subsidiary or affiliate of
Tenant provided that in the event of a foreclosure sale any purchaser of such
interest must be approved


 


8

















 


in advance by the Landlord
and Ground Lease Landlord. Notwithstanding any permitted assignment or transfer
of this Lease or subletting of the Premises, 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, if any, 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 located within the Demised Premises under
the Ground Lease. Landlord shall not have any duty to police the traffic in the
parking areas.


 


ARTICLE 10


TENANT’S FIXTURES AND IMPROVEMENTS


 


10.1 Alterations by
Tenant. Tenant shall not make any alterations, renovations, improvements or
other installations (collectively “Alterations”) in, on or to any part
of the Premises (including, without limitation, any alterations of the front,
signs, structural alterations, or any cutting or drilling into any part of the
Premises or any securing of any fixture, apparatus, or equipment of any kind to
any part of the Premises) unless and until Tenant shall have caused plans and
specifications 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, which shall not be unreasonably withheld or delayed and shall
be deemed granted if not approved or denied in writing within thirty (30) days
of Tenant’s written request therefor. 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


 


9

















 


policies, which shall
contain a clause requiring the insurer to give the Landlord ten (10) days
notice of cancellation of such policies. Notwithstanding the foregoing, Tenant
shall be entitled to make interior, non-structural and/or decorative
alterations without obtaining Landlord’s consent.


 


10.2 Mechanic’s/Construction
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/Construction
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 reasonable satisfaction of Landlord within thirty (30)
days of Tenant’s receipt of notice of such lien. If Tenant shall fail to cause
such lien to be so discharged or bonded after being notified of the filing
thereof, then, in addition to being an Event of Default and any other right or
remedy of Landlord, Landlord may bond or discharge the same by paying the
amount claimed to be due, and the amount so paid by Landlord, including
reasonable attorneys’ fees incurred by Landlord either in defending against
such lien or in procuring the bonding or discharge of such lien, together with
interest thereon at the Default Rate, shall be due and payable by Tenant to
Landlord as Additional Rent.


 


10.3 Tenant’s Leasehold
Improvements and Trade Fixtures; Landlord’s Lien Waiver. 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.


 


10














 


10.3.1
All trade futures, equipment, furniture, inventory, 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. Landlord acknowledges that Tenant may from time to time or at
any time grant security interests in and to its trade fixtures, equipment,
furniture, inventory and apparatus in order to secure financing provided to
Tenant. Landlord consents to Tenant’s granting one or more security interests
in and to Tenant’s trade fixtures, equipment, furniture, inventory and
apparatus and covenants and agrees that any security interest in and to the
Tenant’s trade fixtures, equipment, furniture, inventory and apparatus in favor
of any lender or financier thereof shall be superior to any interest which
Landlord may at any time have in and to Tenant’s trade fixtures, equipment,
furniture, inventory and apparatus and Landlord, for itself, its successors
and/or assigns, does hereby subordinate any and all liens, encumbrances and/or
security interests which it has or may have in and to Tenant’s trade fixtures,
equipment, furniture, inventory and apparatus, whether expressly created in
this Lease or any other instrument by and between Landlord and Tenant, or by
virtue of any statute or under common law. Landlord covenants and agrees with
Lender that, for so long as any lender or financier holds any lien, encumbrance
of security interest in and to Tenant’s trade fixtures, equipment, furniture,
inventory and apparatus, Landlord will not assert against any of Tenant’s trade
fixtures, equipment, furniture, inventory and apparatus any statutory, common
law, contractual, or possessory lien or security interest, including without
limitation any right of levy or destraint for rent, all of which Landlord does
hereby waive and subordinate. Landlord agrees that any such lender or financier
may enter upon the Premises at any time or from time to time, during normal
business hours, so long as Tenant is in possession of the Premises, without
charge, to inspect or remove any of Tenant’s trade futures, equipment,
furniture, inventory and apparatus therefrom. Landlord covenants and agrees
that Landlord will not hinder or delay any such lender’s or financier’s actions
in enforcing its liens, security interests, and remedies with respect to Tenant’s
trade fixtures, equipment, furniture, inventory 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 when necessary) the entire Building and
Project excepting only the area demised to Harrington under the Office Lease.
However, if Tenant shall elect to perform such repair and maintenance
obligations on behalf of Harrington, Tenant shall be entitled to receive
reimbursement from Harrington of Harrington’s Proportionate Share of any
maintenance, replacement and/or repair of the Building and Project, including,
without limitation, the exterior and structural portions of the Building, the
roof, all glass and show window moldings; and all partitions, doors, interior
walls, fixtures, equipment


 


11

















 


and appurtenances thereto,
including lighting, heating and plumbing fixtures and any air conditioning
system and sprinkler system, all parking areas, including paving and striping
of the parking areas, reasonable and ordinary wear and tear excepted. Said
maintenance costs to be reimbursed to Tenant shall include, without limitation,
periodic painting as is reasonably necessary. All cutting and patching of the
roof area required for any reason whatsoever for Tenant’s use and occupancy of
the Premises 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 portion
of the Premises shall be the sole responsibility of the Tenant and to be paid
for by Tenant.


 


11.2 Maintenance by
Landlord. Notwithstanding anything to the contrary contained herein, the
Landlord shall not be responsible for any maintenance to the Building or
Premises.


 


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 reasonable criteria established by Landlord and Ground Lease
Landlord. However, Tenant will not install said sign without first obtaining
Landlord’s and Ground Lease Landlord’s written approval thereof, which shall
not be unreasonably withheld or delayed and shall be deemed granted if written
approval or rejection thereof has not been received within thirty (30) days of
Tenant’s written request therefore. 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 which have not been
approved pursuant to the foregoing provisions 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, reasonable and ordinary wear and tear excepted, 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
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 or nuisance upon
the Premises.


 


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


 


12

















 


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 Tenant’s 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 as a result of Tenant’s use, other than as set forth below. 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 with respect to
the Tenant’s use of the Premises, or representation or confirmation by Landlord
that such Alterations comply with the provisions of the ADA. Notwithstanding
the foregoing, Landlord shall be solely responsible for all costs associated
with constructing the Building in compliance with the ADA.


 


13.3 Governmental
Regulations. Tenant shall, at Tenant’s sole costs and expense, comply in
all material respects 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 in the event that the need therefore should ever
arise. Notice of such rules and regulations and amendments and supplements
thereto, if any, shall be given to the Tenant.


 


ARTICLE 14


HAZARDOUS
MATERIALS


 


14.1 Hazardous Materials.
Tenant shall not use or allow the Premises to be used for the Release, storage,
use, treatment, disposal or other handling of any Hazardous Materials, without
the prior consent of Landlord and Ground Lease Landlord, except that Tenant may
without Landlord’s prior written consent store, use, treat and handle such
Hazardous Materials as are ordinarily and commonly used in its operation of
medical offices and radiation treatment facilities provided that it does so, and
disposes of same, in accordance and compliance with applicable environmental
laws, rules and regulations (“Tenant’s Hazardous Materials Activity”).
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”).


 


13

















 


14.1.1
Tenant shall: (a) except with respect to Tenant’s Hazardous Materials
Activity, give prior notice to Landlord and Ground Lease Landlord of any other
activity or operation to be conducted by Tenant at the Premises which involves
any other Release, use, handling, generation, treatment, storage, or disposal
of any Hazardous Materials, (b) comply in all material respects 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
written request and upon reasonable cause, 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
reasonably 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 written 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 actual reasonable cost of any testing for the
purpose of ascertaining if there has been any Release of Hazardous Materials in
the Premises as a result of Tenant’s Hazardous Materials Activity, 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 Ground Lease Landlord free and harmless from
and against any and all claims, liabilities, penalties, forfeitures, losses and
expenses (including actual reasonable attorneys’ fees) or death of or injury to
any person or damage to any property whatsoever arising from or caused in whole
or in part, directly or indirectly, by the presence in or about the Premises of
any of Tenant’s Hazardous Materials Activity or by Tenant’s failure to comply
with any Hazardous Materials Law regarding Tenant’s Hazardous Materials
Activity or in connection with any removal, remediation, clean up, restoration
and materials required hereunder to return the Premises and any other property
of whatever nature to their condition existing prior to Tenant’s Hazardous
Materials Activity.


 


14.2 Disclosure Warning
and Notice Obligations. Tenant shall comply with all laws, ordinances and
regulations in the Commonwealth of Massachusetts 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


 


14

















 


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
and Ground Lease 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. Except to the extent required by any governmental authority
having jurisdiction over the Premises or Tenant’s use or occupancy thereof,
including without limitation Tenant’s Hazardous Materials Activity, 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 and Ground Lease Landlord’s advance written consent, which consent
may be withheld in Landlord’s or Ground Lease Landlord’s sole discretion. At
any time prior to the expiration of the Term, Landlord or Ground Lease 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 Hazardous Materials Activity.


 


14.4 Survival of
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


 


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. No damage or destruction to any
portion of the Premises shall allow Tenant to surrender possession of the
Premises, the terms of this Lease shall continue in full force and all rents or
other amounts due hereunder shall not be affected whatsoever.


 


ARTICLE 16


EMINENT
DOMAIN


 


If any part of the Premises
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purpose, the terms of this Lease shall continue in full force and all
rents or other amounts due hereunder shall not be affected whatsoever. Tenant
acknowledges and agrees that Landlord has no liability whatsoever with regard
to any condemnation of any portion of the Premises.


 


ARTICLE 17


DEFAULTS


 


17.1 Events of Default by
Tenant. If


 


15

















 


(1) Tenant
abandons or surrenders all or any part of the Premises prior to the expiration
of the Term of the Lease;


 


(2) Tenant
fails to pay Rent or Additional Rent within five (5) days after receipt of
written notice from Landlord of delinquency;


 


(3) 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 and the same is not
cured within thirty (30) days after written notice thereof from Landlord,
unless the same cannot be cured within said thirty (30) day period, in which
case Tenant shall have such additional time as is reasonably necessary to cure
such default, not to exceed ninety (90) days in any and all events, provided
that Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes the same to completion;


 


(4) 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, and in the case
of an involuntary appointment only, the same is not dismissed within ninety
(90) days from said appointment;


 


(5) 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;


 


(6) 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 and the same not be dismissed within ninety (90)
days of the date of the filing thereof; or


 


(7) Tenant
shall permit, allow or suffer to exist beyond ten (10) business days any
lien, judgment, writ, assessment, charge, attachment or execution upon Landlord’s
interest in the Land or any other property of Landlord’s or to the Premises,
and/or the fixtures, improvements and furnishings located thereon, except as
otherwise permitted herein;


 


then, Tenant shall be in
default hereunder.


 


17.2 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
the Ground Lease Landlord and 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.
However, 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


 


16

















 


continuously attempt to
cure, then Landlord shall be in default under this Lease. If Landlord is in
default under this Lease, then any 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 beyond any applicable notice and cure
period, Landlord may, at its option, in addition to such other remedies as may
be available under the law of the Commonwealth of Massachusetts:


 


(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.


 


18.2.1
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 reasonable
attorneys’ fees, brokerage, advertising, and refurbishing the Premises in good
order or preparing them for re-rental. For purposes of this provision, “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.


 


18.2.2
Landlord shall use commercially reasonable efforts to re-let the Premises or
any part thereof, either in the name of Landlord or otherwise, for a term or
terms which may at Landlord’s option be less than or exceed the period which
would otherwise have constituted the balance of the Term, and may grant
concessions or free rent or charge a higher rental than that reserved in this
Lease; and/or at Landlord’s option, Tenant or its legal representatives will
also pay to Landlord as liquidated damages any deficiency between the Rent and
all Additional Rent hereby reserved and/or agreed to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
Premises for each month of the period which would otherwise have constituted
the balance of the Term.


 


18.2.3
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


 


17

















 


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 shall use
commercially reasonable efforts to re-let the Premises or any part thereof,
alone or together with other premises, for such term or terms (which may be
greater or less than the period which otherwise would have constituted the
balance of the Term) and on such terms and conditions (which may include
concessions or free rent and alterations of the Premises) as Landlord, in its
sole discretion, may determine, but Landlord shall not be liable for nor shall
Tenant’s obligations hereunder be diminished by reason of, any failure by
Landlord to re-let the Premises or any failure by Landlord to collect any rent
due upon such re-letting.


 


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


 


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


 


ARTICLE 19


BANKRUPTCY
PROVISIONS


 


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


 


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


 


18

















 


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.”


 


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


 


19

















 


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 the 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 or tenant of the
Project, look solely to the estate and property of Landlord in the Project for
the collection of any judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any default or breach by Landlord
with respect to any of the terms, covenants and conditions of this Lease to be
observed and/or performed by Landlord, and no other assets of Landlord or any
principal of Landlord shall be subject to levy, execution or other procedures
for the satisfaction of Tenant’s remedies.


 


ARTICLE 21


ACCESS
BY LANDLORD


 


Landlord or Landlord’s
agents shall have the right to enter the Premises at all reasonable times and,
except in the case of emergency, on not less than forty-eight (48) hours prior
notice to Tenant, 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


 


20














 


additions are being made, by
reason of loss or interruption of business of Tenant, or otherwise. 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 shall give Tenant reasonable notice during
business hours prior to any entry. Landlord acknowledges that Tenant is a
health care provider subject to the Health Insurance Portability and
Accountability Act (HIPAA) of 1996 and in accordance therewith, Tenant is
required to maintain the privacy of its patients. Landlord agrees to use
commercially reasonable efforts to avoid contact with such confidential patient
records or other information when access to the Premises by Landlord is
permitted hereunder, and Landlord shall be accompanied by an agent or employee
of Tenant when entering the Premises in accordance with the terms of this
Lease.


 


ARTICLE 22


QUIET ENJOYMENT


 


22.1 Landlord’s
Covenant. Upon payment by the Tenant of the rents and other
charges due hereunder, and upon the observance and performance of all of the
covenants, terms and conditions on Tenant’s part to be observed and performed,
and so long as this Lease is in full force and effect, 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. Except as herein otherwise provided, no
subsequent alteration change or addition to this lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.


 


23.3 Notices.


 


23.3.1
Any notice by Tenant to Landlord must be served by certified mail return
requested, addressed to Landlord at the address first hereinabove given or at
such other


 


21

















 


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:

  
	
   

  	
   

  	
   

  
	
  Theriac Enterprises of
  Harrington, LLC 

  	
   

  	
  Central Massachusetts
  Comprehensive 

  
	
  Attn: Cathy Newkirk 

  	
   

  	
  Cancer Center, LLC 

  
	
  5292 Summerlin Commons Way
  

  	
   

  	
  2234 Colonial Blvd. 

  
	
  Suite 1103 

  	
   

  	
  Fort Myers, FL 33907 

  
	
  Fort Myers, FL 33907 

  	
   

  	
  Attn: David N.T. Watson,
  Vice President

  
	
  Phone: 239.936.1904

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  With copies to:

  
	
   

  	
   

  	
   

  
	
  Henderson,
  Franklin, Starnes & Holt, P.A. 

  	
   

  	
  111 Great Neck Road 

  
	
  1715 Monroe Street 

  	
   

  	
  Great Neck, NY 11021 

  
	
  Fort Myers, FL 33901 

  	
   

  	
  Attn: Norton
  Travis, Esq. 

  
	
  Attn: Bruce E.
  Sands, Esq.

  	
   

  	
   

  
	
   

  	
   

  	
  And 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  111 Great Neck Road 

  
	
   

  	
   

  	
  Great Neck, NY 11021 

  
	
   

  	
   

  	
  Attn: Molly M. Rush, Esq.

  



 


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 and Ground
Lease 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.


 


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


 


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provided, however, Tenant
shall be permitted to record a notice of this Lease without inclusion or
reference to any economic terms as allowed under Massachusetts law, provided
the form of the notice is reviewed and approved in advance of filing by the
Landlord.


 


23.10 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.


 


23.11 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.


 


23.12 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. Ground Lease Landlord and 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. Ground Lease
Landlord and 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.


 


23.13 Notice by Tenant.
Tenant shall give immediate notice to Landlord and Ground Lease 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.


 


23.14 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.


 


23.15 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.


 


23.16 Governing Law.
In the event of a lawsuit, litigation or interpretation of this Lease Agreement
parties shall be governed by the laws of the Commonwealth of Massachusetts.


 


23.17 Effective Date.
The “Effective Date” of this Lease is the date this Lease has been
executed by Landlord and Tenant without further modification or amendment.


 


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IN WITNESS WHEREOF, the
undersigned have hereunto set their hands and seals on the dates set forth
below.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  THERIAC ENTERPRISES OF
  HARRINGTON, LLC, a

  
	
   

  	
  Florida limited liability
  company

  
	
   

  	
   

  
	
   

  	
  BY: DDM LLC, a Florida
  limited liability company, its

  
	
   

  	
  Manager

  
	
   

  	
   

  
	
   

  	
  By: Cheda LLC, a Florida
  limited liability company,

  
	
   

  	
  its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Daniel E. Dosoretz, its
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  9/12/08

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  CENTRAL MASSACHUSETTS
  COMPREHENSIVE 

  
	
   

  	
  CANCER CENTER, LLC, A
  Florida limited liability 

  
	
   

  	
  company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Its Manager, New England
  Radiation Therapy 

  
	
   

  	
  Management
  Services, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Jeffrey A. Pakrosnis 

  	
  , its 

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  9/16/08

  



 


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EXHIBIT A


 


Legal
Description: