Exhibit 10.25


 


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


 


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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 Kent 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


 


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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


 


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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;


 


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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


 


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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. All 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
toss 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 Premises 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 patty, 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.


 


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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


 


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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


 


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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 fixtures,
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 Hen, 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 fixtures, 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 fast 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 staring,
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 “Older 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.

  	
   

  	
   

  
	
  1715
  Monroe Street

  	
   

  	
  111 Great Neck Road

  
	
  Fort
  Myers, FL 33901

  	
   

  	
  Great Neck, NY 11021

  
	
  Attn:
  Bruce E. Sands, Esq.

  	
   

  	
  Attn: Norton Travis, 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.


 


22

















 


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,


 


23

















 


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.


 


24

















 


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

  



 


25

















 


EXHIBIT A


 


Legal
Description: