Exhibit 10.27


 


FIRST AMENDMENT TO LEASE


 


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


 


WITNESSETH:


 


WHEREAS,
Landlord and Tenant are parties to that certain Lease dated June 1, 2005 (the “Lease”),
for certain real property commonly known as 7337 East Thomas Road, Scottsdale,
Arizona; and


 


WHEREAS,
Landlord and Tenant desire to amend certain provisions of the Lease upon and
subject to the terms and conditions set forth herein.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Landlord and Tenant hereby agree as follows:


 


1.                       Liability
Insurance. The second sentence of the second paragraph of
Section 5.1 of the Lease is hereby deleted in its entirety and replaced with
the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally left blank;

signatures on following page.]


 


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


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  ARIZONA RADIATION
  ENTERPRISES, LLC, an Arizona limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
  Its:

  	
  EVP & CFO

  



 


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LEASE


 


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


 


WITNESSETH:


 


ARTICLE 1


TERMS


 


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


 


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


 


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


 


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


 


ARTICLE 2


RENT


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


2.3                                 Interest on Past Due Rent. If Tenant shall fail to pay, when the
same is due and payable, Minimum Rent, or Additional Rent, such unpaid amounts
shall bear interest from the due date thereof to the date of payment, at the
prime interest rate of the Chase Manhattan Bank, N.A. as of such due date, plus
three percent (3%) (“Default Date”).


 


Definition of Rent. The term “Rent” shall refer collectively to Minimum
Rent and Additional Rent. The term “Additional Rent” is sometimes used herein
to refer to any and all other sums payable by Tenant hereunder, including, but
not limited to, parking charges and sums payable on account of default by
Tenant. All Rent shall be paid by Tenant without offset, demand or other
credit, and shall be payable only in lawful money of the United States of
America which shall be legal tender in payment of all debts and dues, public
and private, at the time of payment. All sums payable by Tenant hereunder by
check shall be obtained against a financial institution located in the United
States of America. The rent shall be paid by
Tenant at 2234 Colonial Blvd., Fort Myers, FL 33907.


 


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


 


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ARTICLE 3

NET LEASE


 


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


 


3.1.1                        Parking lot repairs, maintenance and replacements.


 


3.1.2                        Installation of outside and inside lighting for
parking.


 


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


 


ARTICLE 4


OPTION TO RENEW


 


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


 


ARTICLE 5


INSURANCE AND INDEMNITY


 


5.1                                 Liability Insurance. Tenant shall, during the entire term
hereof, keep in full force and effect bodily injury and public liability
insurance in an amount not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) /
ONE MILLION DOLLARS ($1,000,000) per injury and accident, respectively;
property damage insurance in an amount not less than ONE HUNDRED THOUSAND
DOLLARS ($100,000); and worker’s compensation insurance in the maximum amount
permitted under Arizona law.


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 6

UTILITIES


 


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


 


ARTICLE 7


SUBORDINATION AND ATTORNMENT


 


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


 


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


 


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


 


ARTICLE 8


ASSIGNMENT
AND SUBLETTING


 


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


 


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subtenant or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of the covenants on the part of
Tenant herein contained. This prohibition against any assignment or subleasing
by operation of law, legal process, receivership, bankruptcy or otherwise,
whether voluntary or involuntary and a prohibition against any encumbrance of
all and any part of Tenant’s leasehold interest. Tenant shall remain fully
liable on this Lease and shall not be released from performing any of the
terms, covenants and conditions hereof or any rents or other sums to be paid
hereunder. Tenant acknowledges and agrees that any and all right and interest
of the Landlord in and to the Premises, and all right and interest of the
Landlord in this Lease, may be conveyed, assigned or encumbered at the sole
discretion of the Landlord at any time.


 


ARTICLE 9


FACILITIES


 


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


 


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ARTICLE 10

TENANTS FIXTURES AND IMPROVEMENTS


 


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


 


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


 


7

















 


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


 


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


 


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


 


ARTICLE 11


MAINTENANCE AND REPAIR OF PREMISES


 


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


 


ARTICLE 12


SIGNS


 


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


 


8

















 


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


 


ARTICLE 13


WASTE AND GOVERNMENTAL REGULATIONS


 


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


 


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


 


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


 


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


 


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ARTICLE 14


HAZARDOUS MATERIALS


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 15


DESTRUCTION OF PREMISES


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


ARTICLE 16

EMINENT DOMAIN


 


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


 


16.2                           Partial Condemnation of Premises.


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


ARTICLE 17

DEFAULTS


 


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


 


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


 


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


 


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


 


14

















 


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


 


ARTICLE 18


LANDLORD’S REMEDIES FOR TENANT’S DEFAULT.


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


16














 


ARTICLE 19

BANKRUPTCY PROVISIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


ARTICLE 20


LIMITATIONS OF LANDLORD’S LIABILITY


 


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


 


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ARTICLE 21


ACCESS BY LANDLORD


 


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


 


ARTICLE 22


QUIET ENJOYMENT


 


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


 


ARTICLE 23


MISCELLANEOUS


 


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


 


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


 


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23.3                           Notices.


 


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


 


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


 


	
  Landlord:

  	
  Tenant:

  
	
  ARIZONA RADIATION

  	
  ARIZONA

  
	
  ENTERPRISES, LLC

  	
  RADIATION

  
	
  C/o DDM, LLC

  	
  THERAPY

  
	
   

  	
  MANAGEMENT

  
	
   

  	
  SERVICES, INC

  
	
  2234 Colonial Blvd.

  	
  2234 Colonial Blvd.

  
	
  Fort Myers, Fl. 33097

  	
  Fort Myers, Fl. 33097

  



 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


ARTICLE 24


TENANT’S PROPERTY


 


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


 


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


 


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


 


ARTICLE 25


HOLDING OVER SUCCESSORS


 


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


 


ARTICLE 26


ATTORNEY FEES AND COSTS


 


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


 


22

















 


ARTICLE 27


VENUE


 


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


 


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


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  Arizona Radiation Enterprises, LLC, an Arizona
  limited liability company

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Dr. Daniel E. Dosoretz, Manager

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: David Koeninger, Vice-President

  



 


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