Exhibit
10.28


 


AGREEMENT

FOR

PHYSICIAN OFFICE SPACE AND SERVICES


 


LEASE
OF OFFICE SPACE


 


AGREEMENT dated October 1, 2004, by and between
THE HIGHLANDS-CASHIERS HOSPITAL, INC. a NORTH CAROLINA nonprofit
corporation (herein called “Landlord”), Post Office Box 190, Highlands, North
Carolina 28741, and North Carolina
Radiation Therapy Management Services, Inc., Charles C. Thomas, MD
(herein called “Tenant”), 445 Biltmore
Ave., Suite G102, Asheville, North Carolina, 28801.


 


1. Witnesseth:


 


That in consideration of the
rents to be paid and the covenants and agreements to be performed by the
parties intending to be legally bound hereby, Landlord does hereby lease and
rent under the terms and conditions set forth herein, the following premises in
Highlands, North Carolina:


 


These premises are
specifically located in the Jane Woodruff
Building. Such space shall be suitable for the practice of
medicine by the tenant. The location of the office space will be identified by
the Landlord in a separate form, Addendum A, to the Tenant and will become an
attachment to this Agreement.


 


2. Term:


 


Landlord demises the above
premises commencing October 1, 2004
and terminating September 30,
2005.


 


3. Rent:


 


The Tenant agrees to pay,
and the Landlord agrees to accept as rental for the term of this Business Lease
as described above, the sum of Four
Hundred Sixty-Eight Dollars and Seventy-Two Cents  payable in
twelve (12) monthly installments of $52.56
each, which includes the additional charges indicated in Addendum B. The first successive payment is
due and payable on the first day of each and every month hereafter throughout
the term of the lease and any extensions and/or renewals thereof.


 

















 


4. Rental
Adjustments:


 


The Landlord has the option
to adjust rents with a 30-day notice to Tenant. Adjustments to rent are made by
the Landlord based on fair market value studies. Landlord is obligated by law
to charge fair market value for rent. After any fair market value rate study
which indicates rents need to be increased, Landlord will increase rents to
comply in full with laws and regulations related to but not limited to statutes
and regulations prohibiting fraud and abuse, kickbacks and self referrals.


 


5. Use
of Premises


 


It is agreed and understood
between the parties hereto that the premises will be used solely for a
physician’s office.


 


6. Assignment
and Subletting


 


Tenant will not assign this
lease or sublet the premises or any portion thereof without the prior written
consent of Landlord. If consent is granted, the original tenant shall conform
to all Federal and state law related to sublease including Stark Law, [42 CFR
411.357(b)] and the Anti-Kickback Statute’s safe harbor, [42 CFR 1001.952(b)].
The sublease must be at fair market value and can’t be linked to volume of
referrals or business generated between the two parties that are covered by
Medicare or Medicaid. Tenant shall renew sublease agreement upon each contract
renewal. Contact the Physician Services Manager for a sublease agreement.


 


7. Utilities


 


Landlord will be responsible
for all charges for water, electricity, and all other utilities consumed or
used in connection with the premises, with the exception of charges incurred
incident to the installation and use of the telephone, which charges will be
the responsibility of Tenant. It is expressly agreed that Landlord will not be
responsible for the temporary or other failure of the supply of any utilities.
Additionally, Landlord will provide basic janitorial services for the premises,
as well as for the building maintenance. Tenants will not be permitted to
utilize the services of third party janitorial or maintenance services. See
addendum’s C and D.


 


8. Indemnification
and Insurance


 


During the term of this
lease or any renewal thereof, Tenant shall indemnify and save Landlord free and
harmless from and against any and all claims and demands, whether for injuries
to persons and loss of life or damage to property, arising out of the use and
occupancy of the premises by Tenant, by any of Tenant’s employees, servants,
agents, licenses, or invitees, or by any other person or persons holding under
Tenant. Tenant will procure and keep in effect during the term
hereof-comprehensive general liability insurance in the sum of $300,000.00
combined single limit coverage for personal injuries and liability resulting
from any one occurrence or casualty. Tenant shall deliver copies of said
policies to Landlord. Likewise, during the term of this lease or any renewal
thereof, Landlord will keep the improvements on the property in which the premises
are situated


 

















 


insured against loss or
damage by fire, windstorm, and the risks covered by the usual extended coverage
endorsement for the benefit of Landlord and Tenant, as their interests may
appear, in an amount equal to the reasonable value thereof, or such lesser
amount as Tenant may approve in writing. Landlord will pay the premiums on such
insurance and will on demand provide Tenant with copies of the insurance
policy. Please note that the Tenant is responsible for obtaining insurance to cover
their personal property.


 


9. Compliance
with laws; Prohibited Acts; Restrictions


 


Tenant will, at Tenant’s
expense, promptly comply with all laws, orders, regulations, and ordinances of
all governmental authorities and agencies affecting the premises unless such
compliance is clearly the obligation of Landlord. Tenant will not, by omission
or commission, cause injury to the premises or cause or permit a nuisance to
exist on the premises. The Tenant will not cause or permit the obstruction of
sidewalks, walls, passageways, or any areas used in common with other tenants
of Landlord, or with Landlord, except with Landlord’s permission. The Tenant
will not use or occupy the premises in a manner that would constitute a
violation of the laws, ordinances, or regulations of the State of North
Carolina or the Government of the United States, or any of their departments,
agencies or political subdivisions.


 


10. Equipment
and Fixtures


 


Any equipment, fixtures, and
other property installed in or attached to the premises by Tenant will remain
the property of Tenant, and Landlord agrees that Tenant will have the right at
any time to remove such equipment, fixtures, and other property so installed or
attached to the premises. Tenant covenants and agrees to repair, at Tenant’s
own cost and expense, all such damage as may be caused to the premises by
reason of the installation or removal of equipment, fixtures, and other
property installed or attached to the premises.


 


11. Repairs
and Maintenance


 


Landlord will be responsible
for and will pay for all repairs and maintenance of the premises. Tenant agrees
to maintain and keep the premises in good order and repair and at the end of
the term, or sooner termination of this lease, to surrender the premises in as
good an order and condition as when received, reasonable wear and tear and acts
of God excepted.


 


12. Improvements


 


The Tenant will not make any
alterations, additions, or improvements to the premises without the written
consent of Landlord, and any such alterations, additions, or improvements shall
be at Tenant’s expense. The Hospital shall coordinate the contracting of
services concerning information technology, data equipment, line companies or
installation of lines, telephone system and/or permanent structural changes. All
requests


 

















 


for alterations, additions
or improvements, must be made in writing on request forms available in the
Physician Services Manager’s office. The Landlord will review any and all
requests. Approval of all requests and subsequent completion will be at the
sole discretion of the Landlord. Any permanent alterations, additions, or
improvements will become the sole property of Landlord upon the expiration of
this lease.


 


13. Damage
to Premises


 


All damage or injury done to
the premises by Tenant or by any person who may be in or upon the premises with
the expressed or implied consent of Tenant will be paid for by the Tenant.
Tenant will occupy the premises at Tenant’s own risk and agree that all
dangerous places and defects upon the premises, excepting any that may be
structural, will be remedied, made secure, and kept in such condition by
Tenant.


 


14. Inspection
by Landlord


 


The Landlord will have the
right to enter upon the premises upon reasonable notice and at all reasonable
hours for purposes of inspecting the same or to make any repairs deemed by
Landlord essential to the premises or necessary to protect Landlord’s
interests. If Landlord deems repairs to be necessary which are the obligation
of Tenant to make pursuant to this lease, Landlord will make such repairs and
shall not be responsible to Tenant for any loss or damage that may accrue to
Tenant’s stock or business by reason thereof, and if Landlord makes or causes
to be made such repairs, Tenant agrees that Tenant will on demand pay to Landlord
the cost thereof, and if Tenant shall default in such payment, Landlord shall
have the remedies provided in the following 2 paragraphs: Default &
Additional Remedies.


 


15. Default


 


If the rent or any part
thereof shall be in arrears, Landlord may at Landlord’s option declare the
lease at an end and reenter and repossess the premises holding Tenant liable
for any rental due, or also at the option of Landlord, take possession of the
premises and rent the same for the account of Tenant, holding Tenant liable for
any deficiency in rental arising during the term of this lease or any renewal
thereof should such breach occur subsequent to Tenant’s having exercised any
right to renew under the terms of this lease.


 


In the event of a breach of
any of such terms and conditions on the part of Tenant, other than payment of
rent, Landlord shall send written notice to Tenant by mail of such breach or
default. Should Tenant fail to make all due effort to cure such default within
thirty (30) days of the mailing of such notice, Landlord may at Landlord’s
option declare the lease at an end and reenter and repossess the premises
and/or re-let the premises, holding Tenant liable for such breach or default,
and for any deficiency in rental which may ensue during the term of this lease
or any renewal thereof. Upon such termination, Tenant shall remain liable for
the remainder of the rent reserved under this lease, and Landlord may re-let
the premises on the same or any other reasonable terms, applying the rent
received against Tenant’s liability and holding Tenant liable for the balance,
if any. Any overage,


 

















 


however, shall belong to
Landlord. If rent is not paid within 30 days from the due date, a late fee of
15% of your monthly lease amount is due along with the rent payment.


 


16. Additional
Remedies


 


In addition to the remedies
provided Landlord in the preceding paragraph, if Tenant will default in any
payment or expenditure, other than rent, required to be paid or expended by
Tenant under the terms hereof, Landlord may at Landlord’s option, after giving
written notice to Tenant, make such payment or expenditures in which event the
amount thereof shall be payable as additional rental to Landlord by Tenant with
the next ensuing rental installment, and on default in such payment Landlord
will have the same remedies as on default in payment of rent.


 


17. Landlord’s
Expenses


 


In the event Landlord will,
during the period covered by this lease, obtain possession of the premises by
reentry, summary proceedings, or otherwise, Tenant agrees to pay Landlord the
expenses incurred in obtaining possession of the premises, including reasonable
attorneys’ fees, all expenses and commissions which may be paid in and about
re-letting of the same, and all other damages.


 


18. Restoration
Due to Casualty


 


If during the term of this
lease, all or a portion of the premises shall be totally or substantially
destroyed by fire, the elements, acts of God, or other causes beyond the
control of Tenant, and the premises shall as a result be rendered un-tenantable,
then Landlord, within a reasonable time thereafter, shall have the option of (1) repairing,
restoring or rebuilding the premises in such a manner as to again be rendered
tenantable, during which period Tenant shall be released from all rental payments,
or (2) declaring the lease to be null and void for the balance of the term
following such destruction or any renewals thereof.


 


19. Eminent
Domain


 


If the whole or a
substantial part of the premises shall be taken for any public or quasi-public
use, under any stature or by right of eminent domain or private purchase in
lieu thereof by a public body vested with the power of eminent domain, then,
when possession shall be taken hereunder of the premises, or a substantial part
thereof, the term and options, if any, hereby demised and all rights and
obligations of Tenant hereunder shall immediately cease and terminate and the
rent shall be adjusted as of the time of such termination and Tenant shall have
no claim against Landlord for the value of the un-expired term hereof. Landlord
shall be entitled to the entire award in any condemnation proceeding or other
proceeding for taking for public or quasi-public use, including without
limitation, any award made for the value of the leasehold estate created by this
lease. No award for any partial or entire taking shall be apportioned, and
Tenant hereby assigns to Landlord any award that may be made in a condemnation
or other taking,


 

















 


together with any and all
rights of Tenant now or hereafter arising to all or a part of the award;
provided, however, that nothing contained herein shall be deemed to give
Landlord any interest in, or require Tenant to assign to Landlord, any award
made to Tenant specifically for Tenant’s relocation expenses, the taking of
personal property and fixtures belonging to Tenant, or the interruption of, or
damage to, Tenant’s business.


 


20. Signs


 


No signs will be placed on
or about the exterior of the premises unless they shall have been examined and
approved by Landlord and shall have been approved in writing by relevant
governmental authority where such approval is required.


 


21. Medicaid
and Medicare Provisions


 


The parties intend that this
Agreement and all transaction hereunder comply in full with all laws and
regulations related to the Medicare and Medicaid programs, including but not
limited to statutes and regulations prohibiting fraud and abuse, kickbacks and
self-referrals. The parties specifically acknowledge and agree that any benefit
which the Landlord or any entity affiliated with Landlord, or which Tenant or
any physician employed by or associated with Tenant may directly or indirectly
receive hereunder in no way requires, is in no way contingent upon, and is in
no way intended to induce, the referral of any patient to (i) Landlord or
any other entity affiliated with Landlord, or (ii) Tenant or to any
physician employed by or associated with Tenant. In addition, there is no
requirement that Landlord or any entity affiliated with Landlord, or Tenant,
make referrals to, be in a position to make or influence referrals to or
otherwise generate business for (i) Landlord or any other entity
affiliated with Landlord, or (ii) Tenant or any physician employed by or
associated with Tenant as the condition for receiving such benefit.


 


22. Easements,
Encumbrances, and Restrictions


 


The parties hereto agree to
be bound by all the existing easements, encumbrances, and restrictions relating
to the premises. This lease and all rights of the parties hereto are subject
and subordinate to the liens of all deeds of trust or mortgages that may now or
hereafter affect the premises, and to any and all renewals, modifications, and
extensions of such deeds of trust or mortgages. Tenant will upon the request of
Landlord and at the Landlord’s expense, sign, acknowledge, and deliver to
Landlord any and all instruments that may be necessary or proper to subordinate
this lease and all rights herein to the liens of any such deeds of trust or
mortgages, and each renewal, modification, or extension thereof.


 


23. Rights
Cumulative


 


It is agreed that each and
every one of the rights, remedies, and benefits provided by this lease shall be
cumulative, and will not be exclusive of any other right, remedy, or benefit
allowed by law.


 

















 


24. Non-Waiver


 


One or more waiver of any
covenant or condition by Landlord will not be construed as a waiver of a
further breach of the same covenant or condition.


 


25. Holding
Over


 


It is agreed that in the
event of Tenant’s holding over after the termination of this lease, thereafter
the tenancy shall be from month to month in the absence of a written agreement
to the contrary. During hold over periods, all elements of this contract apply.


 


26. Provisions
Binding


 


It is mutually covenanted,
understood, and agreed by and between the parties hereto that each of the
expressions, phrases, terms, conditions, provisions, stipulations, promises,
agreements, admissions, requirements, and obligations of this lease shall
extend to and bind inure to the benefit not only of the parties hereto but each
and every one of the heirs, personal representatives, successors, and assigns
of the parties hereto and to any subtenant, and wherever in this lease a
reference to either of the parties hereto is made, such reference shall be
deemed to include, wherever appropriate, the heirs, personal representatives,
successors, assigns, and subtenants of that party. The words “assigns” and “subtenant”
have been included in this paragraph as a contingency, and shall not be
interpreted to alter or modify the prohibition against assignment or subletting
set out in the paragraph on Assignment and Subletting hereof.


 


27. Captions


 


The captions as to contents
of particular paragraphs herein are inserted only for convenience, and are not
to be construed as a limitation in the scope of the particular paragraphs to
which they refer.


 


28. Notices


 


Whenever under this lease a
provision is made for notice of any kind, it shall be deemed sufficient service
thereof if such notice is in writing addressed to the respective party to this lease
at the address set forth herein and deposited in the mail with postage prepaid
or delivered personally to the respective party.


 


29. Applicable
Law


 


This lease shall be
construed in accordance with the laws of the State of North Carolina.


 

















 


30. Amendment
or Modification:


 


No amendment or additions to
this Agreement shall be binding unless in writing and signed by both parties.
In the event that information or notification is received by a party, which
indicates that this Agreement does not conform with law or the rules or
standards of any third party payers, governmental agencies, or other agencies
which may have control over the Hospital/practitioner contracts or control over
any part of this Agreement or the services hereunder, the parties agree to
negotiate in good faith such amendments or modifications to this Agreement as
are necessary to conform the Agreement with law or the rules or standards
of any third party payers or agencies referred to above.


 


31. Contract
Cancellation:


 


Cancellation of this
contract may be requested by either party, at any time during the contract
term. Notice must be given in written form to the parties listed in the lease
agreement no later than 90 days prior to the requested termination date. It is
understood that the parties involved cannot embark on a new lease arrangement
during the original contract period for the same location. During this period
the “Tenant” agrees to allow the “Landlord” to show said office space to
perspective tenants. Landlord must notify the Tenant at least 24 hours in
advance and will be respectful of the Tenants business operations. The Tenant
agrees to fulfill any and all financial obligations in full by the last day of
the occupancy of the location listed in Addendum A. This paragraph does not
replace or diminish the conditions described in Paragraph 15 — Default, or
Paragraph 16 — Additional Remedies.


 














 


PHYSICIAN
SERVICES


 


In addition to the Lease of
Physician Office Space as described under Section A of this Agreement,
Tenant may elect to purchase additional services from the Landlord to support
Tenant’s Physician Practice. These services are to be provided as long as the
Tenant’s lease with Highlands Cashiers Hospital is in force and will be
provided in the leased space occupied by the Tenant. Tenant may terminate these
services in whole or in part with 30 days prior notice. Note: Sublease
contracts with providers other than Highlands Cashiers Hospital do not qualify
for the below services.


 


Services that can be
provided:


 


1.                         Long distance
telephone service at cost. (see separate policy)


 


2.                         Supplies as
ordered by Tenant at cost plus 10%. (see separate policy)


 


3.                         Physician
computer billing system. Cost for this service is to be set at the Hospital’s
current cost for providing such computer service. (see separate contract)


 


To select additional
services required by Tenant, Tenant should circle the number identifying the
service and initial and date each service requested. Landlord will bill the
Tenant each month for the services provided.


 


Separate contracts with full
service explanations and responsibilities are to be secured and attached to
this document.


 

















 


IN WITNESS WHEREOF, the
parties hereto have signed this lease under seal as of the date first written
above.


 


 


	
   

  	
  THE HIGHLANDS-CASHIERS
  HOSPITAL, INC.

  
	
   

  	
  Landlord

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
  Jim Graham, Administrator

  



 


 


	
  (Corporate Seal)

  	
   

  
	
   

  	
  Attest:

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
  Joan Cabe

  Assistant Secretary

  



 


 


	
   

  	
  Name of Tenant:

  	
  Authorized Signatory

  
	
   

  	
   

  	
  Print

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature of Tenant:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  5/27/05

  	
   

  
						



 

















 


Addendum A


 


Location and use of office


 


	
  Tenant:

  	
  North
  Carolina Radiation Therapy Management Services, Inc.

  
	
   

  	
  Dr. Charles
  C. Thomas

  



 


The lease space consist of 1,104 sq. ft, located at:


 


171
Hospital Drive, Suite 600

Highlands, NC 28741


 


This space
consists of: 4 exam rooms, 1 office, 2 bathrooms, 1 business office, 1 common
work area, 1 kitchen and a patient waiting area.


 


The above office space will
be made available to you:


 


Every First
and Third Tuesday of each month for half a day — 8:00 a.m. to 12:00 p.m.


 


October — 5th & 19th 

November — 2nd & 16th 

December — 7th & 21st 

January — 4th & 18th 

February — 1st & 15th


March — 1st & 15th 

April — 5th & 19th 

May — 3rd & 17th 

June — 7th & 21st 

July — 5th & 19th 

August — 2nd
& 16th


September — 6th & 20th


 


Any changes of lease space
or alterations in previously agreed upon days of use and or times of use, must
be approved by the Landlord and will necessitate a change to the existing
contract. Monthly lease rates are based upon fair market value as required by
Federal statute


[42 CFR 411.357 (a)]


This contract “FMV” is set
at $9.20 per sq ft.


 

















 


Addendum B


 


Highlands-Cashiers Hospital

Jane Woodruff Building

Highlands, NC


 


Visiting physicians leasing
office space at the Jane Woodruff Building will be charged additional fee’s to
cover basic medical & office supplies in addition to basic telephone service.
If a physician desires the services of an office scheduler the additional fee
noted below will be added.


 


The per day fee’s are as
follows:


 


	
  Basic
  Office & Medical Supplies

  	
  = $5.00/ Day

  	
   

  
	
  *See
  attached for a listing of items supplied

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone
  Service

  	
  = $8.50/ Day

  	
   

  
	
  *This includes basic
  service only — long distance charges will be billed separately

  
	
   

  	
   

  	
   

  
	
  Total    

  	
  = $13.50/Day

  	
  $6.75/Half Day

  
	
   

  	
   

  	
   

  
	
  Office
  Scheduler

  	
  = $40.00/Day

  	
   

  
	
  *See
  separate contract

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Total        

  	
  = $53.50/Day

  	
  $26.75/Half
  Day

  



 


The above fees will be added
to the monthly lease statement and carry the same obligations to the tenant as
described in section (15 and 16) of the main contract.


 


$
             x
              days/month=
$
                      /month
additional fees.


 

















 


FIRST AMENDMENT TO LEASE


 


This FIRST AMENDMENT TO
LEASE dated December 31, 2009 (this “Amendment”), is by and between 445
PARTNERS LLC (successor-in-interest to 445 Biltmore Center) (“Lessor”), and
NORTH CAROLINA RADIATION ENTERPRISES, LLC (successor-in-interest to St. Joseph’s
Regional Cancer Center) (“Lessee”).


 


WITNESSETH:


 


WHEREAS, Lessor and Lessee
are parties to that certain Lease dated October 4, 1996 (the “Lease”), for
certain real property commonly known as 445 Biltmore Center, Suites G-102,
[G-102 extension, G-108 and G-109, Asheville, North Carolina; and


 


WHEREAS, Lessor and Lessee
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, Lessor and Lessee hereby agree as follows:


 


1.                         Removal of
Personal Property. Section 14 of the Lease is hereby amended by:


 


(a)                     in the first and second
lines of such section, deleting the phrase “so long as Lessee is not then in
default,”; and


 


(b)                    deleting the last sentence
of such section in its entirety.


 


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


 


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


 


4.                         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.


 


5.                         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 Lessor and
Lessee. In the event of a conflict between the terms and conditions of the
Lease and this Amendment, the terms of this Amendment shall prevail.


 


6.                         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.


 


1

















 


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


 


 


	
   

  	
  LESSOR:

  
	
   

  	
   

  
	
   

  	
  445 PARTNERS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosorett

  
	
   

  	
  Name:

  	
  DANIEL E. DOSORETT, MD

  
	
   

  	
  Its:

  	
   

  



 


 


	
   

  	
  LESSEE:

  
	
   

  	
   

  
	
   

  	
  NORTH CAROLINA RADIATION
  ENTERPRISES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan J Carey

  
	
   

  	
  Name:

  	
  Bryan J Carey

  
	
   

  	
  Its:

  	
  EVP & CFL

  



 


2














Exhibit 10.29(a)


 


FIRST
AMENDMENT TO LEASE


 


This FIRST AMENDMENT TO
LEASE dated December 31, 2009 (this “Amendment”), is by and between 445
PARTNERS LLC (successor-in-interest to 445 Biltmore Center) (“Lessor”), and
NORTH CAROLINA RADIATION ENTERPRISES, LLC (successor-in-interest to St. Joseph’s
Regional Cancer Center) (“Lessee”).


 


WITNESSETH:


 


WHEREAS,
Lessor and Lessee are parties to that certain Lease dated October 4, 1996
(the “Lease”), for certain real property commonly known as 445 Biltmore Center,
Suites G-102, [G-102 extension, G-108 and G-109, Asheville, North Carolina; and


 


WHEREAS,
Lessor and Lessee 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, Lessor and Lessee hereby agree as follows:


 


1.        Removal of Personal Property. Section 14
of the Lease is hereby amended by:


 


(a)                     in the first and second
lines of such section, deleting the phrase “so long as Lessee is not then in
default,”; and


 


(b)                    deleting the last sentence
of such section in its entirety.


 


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


 


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


 


4.        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.


 


5.        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 Lessor and Lessee. In the
event of a conflict between the terms and conditions of the Lease and this
Amendment, the terms of this Amendment shall prevail.


 


6.        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.


 


1

















 


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


 


 


	
   

  	
   

  	
   

  	
  LESSOR:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  445 PARTNERS LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  LESSEE:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NORTH CAROLINA RADIATION
  ENTERPRISES, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
   

  	
  Its:

  	
  EVP & CFO

  



 


2

















 


NORTH
CAROLINA RADIATION THERAPY

MANAGEMENT SERVICES, INC.

c/o Radiation Therapy Services, Inc.

2234 Colonial Boulevard

Fort Meyers, Florida 33907


 


March 21,
2006


 


CERTIFIED MAIL, RETURN
RECEIPT REQUESTED


 


and


 


VIA FACSIMILE


 


445 Partners LLC

c/o Archerd-Bell Investment Group, LLC

1075 Hendersonville Road

Suite 200

P.O. Box 5411

Asheville, NC 28813


 


Re:                 Notice of Exercise of Option
to Extend

Lease of Suite G-102,445 Biltmore Center, Asheville, NC


 


Gentlemen:


 


Reference is made to that
certain Lease, dated October 4,1996, between 445 Partners LLC (successor
to 445 Biltmore Center), as landlord, and North Carolina Therapy Management
Services, Inc. (successor to St Joseph’s Regional Cancer Center), as
tenant (‘Tenant”), as the same may have been amended or modified (collectively,
the “Lease”). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Lease.


 


This letter shall serve as
Tenant’s written notice of its election to extend the term of the Lease for one
(1) separate and successive ten (10) year period. Accordingly, kindly
provide Tenant with the Base Rental at least thirty (30) days prior to the
commencement of the renewal term in accordance with the provisions of Article 3
of the Lease.


 


Please be guided
accordingly.


 


	
   

  	
   

  	
   

  	
   

  	
  NORTH CAROLINA RADIATION
  THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David M. Koeninger

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President - Chief
  Financial Officer

  



 

















 


445
Condominium Developers, LLC

PO Box 709

Asheville, NC 28802


 


Mr. David M. Koeninger

North Carolina Radiation Therapy

Management Services, Inc.

2234 Colonial Boulevard

Fort Meyers, Florida 33907


 


RE:                 Option to Extend

Lease of Suite G-102

445 Biltmore Center

Asheville, NC


 


Dear Mr. Koeninger:


 


In your letter dated March 21,
2006 you provided notice of your election to extend the term of the lease
referenced above for one successive ten year period.


 


Before I quote you a base
rate let me review a couple of items in question. Your lease is dated October 4,
1996 with a term of 10 years from the Commencement Date. The Commencement Date
was tied to commencement of a lease with Regional Oncology Associates for space
on the first floor. According to our records, this date is May 1, 1997.


 


The lease also indicated
various square footage amounts that total 10,850 square feet. The Lease
Assignment Agreement dated January 1, 2002 reflects 11,533 square feet. We
have recently had an architect measure the space at 11,504.58 usable sq feet.


 


In accordance with Article 3
of the Lease, the base rate for the option term shall be the fair market rental
rate. We have recently renewed a lease for Mission Hospital at fair market
rental rate of $18.50 per usable square foot. Applying this rate to the
11,504.58 square feet would result in annual base rent of $212,834.73 annually
plus the common area maintenance expenses. The lease limits the renewal
increase to the CPI over the lease term. This would result in a base rate of
$16.80 (9/1996 CPI of 157.8 8/2006 CPI of 203.9) (Rate of $13.00 X
203.9/157.8). This is an annual base rent of $193,276.94.


 


Please contact me before the
end of your lease term on April 30, 2007 so that we may prepare and
execute a lease amendment for the renewal period.


 


	
  Very truly yours,

  	
   

  
	
  /s/ Charles W. Archerd

  	
   

  
	
  Charles W. Archerd

  	
   

  



 

















 


445
Condominium Developers, LLC

PO Box 709

Asheville, NC 28802


 


Mr. David M. Koeninger

North Carolina Radiation Therapy

Management Services, Inc.

2234 Colonial Boulevard

Fort Meyers, Florida 33907


 


RE:                 Option to Extend

Lease of Suite G-102

445 Biltmore Center

Asheville, NC


 


Dear Mr. Koeninger:


 


In your letter dated March 21,
2006 you provided notice of your election to extend the term of the lease
referenced above for one successive ten year period.


 


Before I quote you a base
rate let me review a couple of items in question. Your lease is dated October 4,
1996 with a term of 10 years from the Commencement Date. The Commencement Date
was tied to commencement of a lease with Regional Oncology Associates for space
on the first floor. According to our records, this date is May 1, 1997.


 


The lease also indicated
various square footage amounts that total 10,850 square feet. The Lease
Assignment Agreement dated January 1, 2002 reflects 11,533 square feet. We
have recently had an architect measure the space at 11,504.58 usable sq feet.


 


In accordance with Article 3
of the Lease, the base rate for the option term shall be the fair market rental
rate. We have recently renewed a lease for Mission Hospital at fair market
rental rate of $18.50 per usable square foot. Applying this rate to the
11,504.58 square feet would result in annual base rent of $212,834.73 annually
plus the common area maintenance expenses.


 


Please contact me before the
end of your lease term on April 30, 2007 so that we may prepare and
execute a lease amendment for the renewal period.


 


	
  Very truly yours,

  	
   

  
	
  /s/ Charles W. Archerd

  	
   

  
	
  Charles W. Archerd

  	
   

  



 

















 


PERSONAL
& CONFIDENTIAL


 


LEASE


 


BETWEEN


 


445
BILTMORE CENTER


 


AND


 


ST.
JOSEPH’S REGIONAL CANCER CENTER


 

















 


	
  STATE
  OF NORTH CAROLINA

  	
   

  
	
   

  	
  LEASE
  AGREEMENT

  
	
  COUNTY
  OF BUNCOMBE

  	
   

  



 


THIS LEASE, made and entered
into this 4TH DAY OF OCTOBER, 1996, by and between 445 Biltmore Center, a North
Carolina Limited Partnership (hereinafter called the “Lessor”), and ST. JOSEPH’S
REGIONAL CANCER CENTER, a North Carolina General Partnership, (hereinafter
called “Lessee”);


 


W
I T N E S S E T H;


 


1.        Premises. The Lessor hereby
Leases unto the Lessee, and the Lessee hereby Leases from the Lessor, upon
terms and conditions hereinafter set forth, 10,850 square feet (comprised of
the following Suites - G-102 4,611 s.f.; G-109 4,747 s.f.; G-108 590 s.f.; and,
G-102 extension 902 s.f.) of the Ground floor of the 44 5 Biltmore Center
professional office Building (hereinafter called the “Building”), located at
Biltmore Avenue, Asheville, North Carolina. The Leased space is shown on Exhibit VI
attached hereto and made a part hereof and is called the “Premises”.


 


2.        Acceptance of Premises. Lessor
has made no representation of promises with respect to the Building, Premises,
or this agreement except as set forth herein and Lessee’s entry to the Premises
shall constitute acceptance thereof.


 


3.        Term. Lessor and Lessee shall be
bound hereunder “upon the execution hereof and the term hereof shall continue
in force for a period of ten (10) years after the Commencement Date, as


 

















 


hereinafter defined.


 


The Lessee shall have the
option to extend the term of this Lease for one (1) separate and
successive ten (10) year period by giving written notice of the renewal at
least six (6) months prior to the expiration of the then current Lease
term. The Lessor shall have the right any time prior to 30 days from the
commencement thereof to increase the “Base Rental” as specified in Section 6(a) hereof
to reflect a fair market rental rate for the building. In no event shall the
said increase be greater than the increase in the cost of living index for “all
items” as established by the Consumer Price Index (Urban Consumer - 1982 = 100)
published by the United States Bureau of Labor Statistics computed by
calculating the increase in said index for the sixth month preceding the month
in which any extension term is to commence, over said index for the sixth month
preceding the month of the original Commencement Date. (If such Consumer Price
Index shall be discontinued, the parties hereto shall thereafter accept
comparable statistics on the cost of living by an agency of the United States
Government or other responsible financial reports, or, if the parties cannot
agree upon a selection, one shall be chosen by arbitration.)


 


4.        Commencement Date. The
Commencement Dates shall be as follows:


 


Suites G-102, 4, 611 s.f., G-108,
590 s.f., G-109, 4,747 s.f., will commence as soon as the Lessor
commences the lease with Regional Oncology Associates for the First Floor of
the


 


2

















 


NORTH
CAROLINA RADIATION THERAPY

MANAGEMENT SERVICES, INC.

c/o Radiation Therapy Services, Inc.

2234 Colonial Boulevard

Fort Meyers, Florida 33907


 


March 21,
2006


 


CERTIFIED MAIL, RETURN
RECEIPT REQUESTED


 


and


 


VIA FACSIMILE


 


445 Partners LLC

c/o Archerd-Bell Investment Group, LLC

1075 Hendersonville Road

Suite 200

P.O. Box 5411

Asheville, NC 28813


 


Re:                 Notice of Exercise of Option
to Extend

Lease of Suite G-102, 445 Biltmore Center, Asheville, NC


 


Gentlemen:


 


Reference is made to that
certain Lease, dated October 4, 1996, between 445 Partners LLC (successor
to 445 Biltmore Center), as landlord, and North Carolina Therapy Management
Services, Inc. (successor to St. Joseph’s Regional Cancer Center), as
tenant (“Tenant”), as the same may have been amended or modified (collectively,
the “Lease”). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Lease.


 


This letter shall serve as
Tenant’s written notice of its election to extend the term of the Lease for one
(1) separate and successive ten (10) year period. Accordingly, kindly
provide Tenant with the Base Rental at least thirty (30) days prior to the
commencement of the renewal term in accordance with the provisions of Article 3
of the Lease.


 


Please be guided accordingly.


 


	
   

  	
   

  	
   

  	
   

  	
  NORTH CAROLINA RADIATION
  THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David M. Koeninger

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President - Chief
  Financial Officer

  
								



 

















 


	
  

  	
  U.S.
  Department of Labor

  	
  

  
	
  Bureau of
  Labor Statistics

  
	
  Bureau
  of Labor Statistics Data

  



 


	
  www.bls.gov 

  	
  Advanced Search | A-Z Index

  



 


BLS Home |
Programs & Surveys | Get Detailed Statistics | Glossary | What’s New |
Find It! In DOL


 


	
  Change
  Output

  	
  From: 1996

  	
   To: 2006

  	
   

  	
  GO

  	
   

  	
   

  	
   

  
	
  Options:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o 
  include graphs NEW!

  	
   

  	
  More Formatting Options  

  	
   

  	
   

  



 


Data
extracted on: September 25, 2006 (12:49:57 PM)


 


Consumer
Price Index - All Urban Consumers


 


	
  Series Id: CUUR0000SA0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Not
  Seasonally Adjusted

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Area: U.S. city average

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item: All items

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base Period: 1982-84=100

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Year

  	
   

  	
  Jan

  	
   

  	
  Feb

  	
   

  	
  Mar

  	
   

  	
  Apr

  	
   

  	
  May

  	
   

  	
  Jun

  	
   

  	
  Jul

  	
   

  	
  Aug

  	
   

  	
  Sep

  	
   

  	
  Oct

  	
   

  	
  Nov

  	
   

  	
  Dec

  	
   

  	
  Annual

  	
   

  	
  HA

  	
   

  
	
  1996

  	
   

  	
  154.4

  	
   

  	
  154.9

  	
   

  	
  155.7

  	
   

  	
  156.3

  	
   

  	
  156.6

  	
   

  	
  156.7

  	
   

  	
  157.0

  	
   

  	
  157.3

  	
   

  	
  157.8

  	
   

  	
  158.3

  	
   

  	
  158.6

  	
   

  	
  158.6

  	
   

  	
  156.9

  	
   

  	
  15

  	
   

  
	
  1997

  	
   

  	
  159.1

  	
   

  	
  159.6

  	
   

  	
  160.0

  	
   

  	
  160.2

  	
   

  	
  160.1

  	
   

  	
  160.3

  	
   

  	
  160.5

  	
   

  	
  160.8

  	
   

  	
  161.2

  	
   

  	
  161.6

  	
   

  	
  161.5

  	
   

  	
  161.3

  	
   

  	
  160.5

  	
   

  	
  15

  	
   

  
	
  1998

  	
   

  	
  161.6

  	
   

  	
  161.9

  	
   

  	
  162.2

  	
   

  	
  162.5

  	
   

  	
  162.8

  	
   

  	
  163.0

  	
   

  	
  163.2

  	
   

  	
  163.4

  	
   

  	
  163.6

  	
   

  	
  164.0

  	
   

  	
  164.0

  	
   

  	
  163.9

  	
   

  	
  163.0

  	
   

  	
  16

  	
   

  
	
  1999

  	
   

  	
  164.3

  	
   

  	
  164.5

  	
   

  	
  165.0

  	
   

  	
  166.2

  	
   

  	
  166.2

  	
   

  	
  166.2

  	
   

  	
  166.7

  	
   

  	
  167.1

  	
   

  	
  167.9

  	
   

  	
  168.2

  	
   

  	
  168.3

  	
   

  	
  168.3

  	
   

  	
  166.6

  	
   

  	
  16

  	
   

  
	
  2000

  	
   

  	
  168.8

  	
   

  	
  169.8

  	
   

  	
  171.2

  	
   

  	
  171.3

  	
   

  	
  171.5

  	
   

  	
  172.4

  	
   

  	
  172.8

  	
   

  	
  172.8

  	
   

  	
  173.7

  	
   

  	
  174.0

  	
   

  	
  174.1

  	
   

  	
  174.0

  	
   

  	
  172.2

  	
   

  	
  17

  	
   

  
	
  2001

  	
   

  	
  175.1

  	
   

  	
  175.8

  	
   

  	
  176.2

  	
   

  	
  176.9

  	
   

  	
  177.7

  	
   

  	
  178.0

  	
   

  	
  177.5

  	
   

  	
  177.5

  	
   

  	
  178.3

  	
   

  	
  177.7

  	
   

  	
  177.4

  	
   

  	
  176.7

  	
   

  	
  177.1

  	
   

  	
  17

  	
   

  
	
  2002

  	
   

  	
  177.1

  	
   

  	
  177.8

  	
   

  	
  178.8

  	
   

  	
  179.8

  	
   

  	
  179.8

  	
   

  	
  179.9

  	
   

  	
  180.1

  	
   

  	
  180.7

  	
   

  	
  181.0

  	
   

  	
  181.3

  	
   

  	
  181.3

  	
   

  	
  180.9

  	
   

  	
  179.9

  	
   

  	
  17

  	
   

  
	
  2003

  	
   

  	
  181.7

  	
   

  	
  183.1

  	
   

  	
  184.2

  	
   

  	
  183.8

  	
   

  	
  183.5

  	
   

  	
  183.7

  	
   

  	
  183.9

  	
   

  	
  184.6

  	
   

  	
  185.2

  	
   

  	
  185.0

  	
   

  	
  184.5

  	
   

  	
  184.3

  	
   

  	
  184.0

  	
   

  	
  18

  	
   

  
	
  2004

  	
   

  	
  185.2

  	
   

  	
  186.2

  	
   

  	
  187.4

  	
   

  	
  188.0

  	
   

  	
  189.1

  	
   

  	
  189.7

  	
   

  	
  189.4

  	
   

  	
  189.5

  	
   

  	
  189.9

  	
   

  	
  190.9

  	
   

  	
  191.0

  	
   

  	
  190.3

  	
   

  	
  188.9

  	
   

  	
  18

  	
   

  
	
  2005

  	
   

  	
  190.7

  	
   

  	
  191.8

  	
   

  	
  193.3

  	
   

  	
  194.6

  	
   

  	
  194.4

  	
   

  	
  194.5

  	
   

  	
  195.4

  	
   

  	
  196.4

  	
   

  	
  198.8

  	
   

  	
  199.2

  	
   

  	
  197.6

  	
   

  	
  196.8

  	
   

  	
  195.3

  	
   

  	
  19

  	
   

  
	
  2006

  	
   

  	
  198.3

  	
   

  	
  198.7

  	
   

  	
  199.8

  	
   

  	
  201.5

  	
   

  	
  202.5

  	
   

  	
  202.9

  	
   

  	
  203.5

  	
   

  	
  203.9

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20

  	
   

  



 


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Privacy & Security Statement | Linking to Our Site | Accessibility


 


	
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  9/25/2006

  



 


1














 


PERSONAL
& CONFIDENTIAL


 


LEASE


 


BETWEEN


 


445
BILTMORE CENTER


 


AND


 


ST.
JOSEPH’S REGIONAL CANCER CENTER


 

















 


LEASE


 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Premises

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Acceptance of Premises

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Term

  	
  1

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Commencement Date

  	
  2

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions of the Premises

  	
  3

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Rent

  	
  3

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Improvements

  	
  7

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Lessor’s Obligations

  	
  8

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Repairs

  	
  9

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Loss or Damage and
  Insurance

  	
  9

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Use of Premises

  	
  10

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Enjoyment of Premises

  	
  10

  
	
   

  	
   

  	
   

  
	
  13.

  	
  SubLease or Assignment

  	
  11

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Removal of Personal
  Property

  	
  11

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Personal Property Risk

  	
  12

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Lessee’s Obligation to
  Occupy and Lessor’s Consent to Vacate

  	
  12

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Default

  	
  13

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Governmental Requirements

  	
  16

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Condemnation

  	
  16

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Fire or Casualty

  	
  16

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Inspection

  	
  17

  
	
   

  	
   

  	
   

  
	
  22.

  	
  Subordination to Mortgages

  	
  18

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Signs and Hallways

  	
  18

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Notices

  	
  19

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Rules and Regulations

  	
  19

  
	
   

  	
   

  	
   

  
	
  26.

  	
  Staff Privileges and
  Compliance with Directives

  	
  19

  
	
   

  	
   

  	
   

  
	
  27.

  	
  Rights and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  Parties

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  Approval

  	
   

  
	
   

  	
   

  	
   

  
	
  31.

  	
  Memorandum of Lease

  	
   

  
	
   

  	
   

  	
   

  
	
  32.

  	
  Controlling Law

  	
   

  
	
   

  	
   

  	
   

  
	
  33.

  	
  Notice to Lessor

  	
   

  
	
   

  	
   

  	
   

  
	
  34.

  	
  Waiver of Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  35.

  	
  No Broker

  	
   

  
	
   

  	
   

  	
   

  
	
  36.

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  37.

  	
  Easements, Restrictions,
  and Right-of-Way

  	
   

  
	
   

  	
   

  	
   

  
	
  38.

  	
  Stamp Tax or Sales Tax on
  Lease

  	
  23

  
	
   

  	
   

  	
   

  
	
  39.

  	
  Lessor’s Liability

  	
  23

  
	
   

  	
   

  	
   

  
	
  40.

  	
  Lessor’s Performance of
  Lessee’s Covenants

  	
  23

  
	
   

  	
   

  	
   

  
	
  41.

  	
  Lessee’s Taxes

  	
  24

  
	
   

  	
   

  	
   

  
	
  42.

  	
  Entire Agreement

  	
  24

  
	
   

  	
   

  	
   

  
	
  43.

  	
  Electricity

  	
  24

  
	
   

  	
   

  	
   

  
	
  44.

  	
  Limitation of Use

  	
  24

  
	
   

  	
   

  	
   

  
	
  45.

  	
  Quiet Use of Premises

  	
  25

  
	
   

  	
   

  	
   

  
	
  46.

  	
  Holding Over by Lessee

  	
  25

  
	
   

  	
   

  	
   

  
	
  47.

  	
  Ethical Practices

  	
  25

  



 

















 


	
  STATE
  OF NORTH CAROLINA

  	
   

  
	
   

  	
  LEASE
  AGREEMENT

  
	
  COUNTY
  OF BUNCOMBE

  	
   

  



 


THIS LEASE, made and entered
into this 4TH DAY OF OCTOBER, 1996, by and between 445 Biltmore Center, a North
Carolina Limited Partnership (hereinafter called the “Lessor”), and ST. JOSEPH’S
REGIONAL CANCER CENTER, a North Carolina General Partnership, (hereinafter
called “Lessee”);


 


W
I T N E S S E T H;


 


1.        Premises. The Lessor hereby
Leases unto the Lessee, and the Lessee hereby Leases from the Lessor, upon
terms and conditions hereinafter set forth, 10,850 square feet (comprised of
the following Suites - G-102 4,611 s.f.; G-109 4,747 s.f.; G-108 590 s.f.; and,
G-102 extension 902 s.f.) of the Ground floor of the 445 Biltmore Center
professional office Building (hereinafter called the “Building”), located at
Biltmore Avenue, Asheville, North Carolina. The Leased space is shown on Exhibit VI
attached hereto and made a part hereof and is called the “Premises”.


 


2.        Acceptance of Premises. Lessor
has made no representation of promises with respect to the Building, Premises,
or this agreement except as set forth herein and Lessee’s entry to the Premises
shall constitute acceptance thereof.


 


3.        Term. Lessor and Lessee shall be
bound hereunder upon the execution hereof and the term hereof shall continue in
force for a period of ten (10) years after the Commencement Date, as


 

















 


hereinafter defined.


 


The Lessee shall have the
option to extend the term of this Lease for one (1) separate and
successive ten (10) year period by giving written notice of the renewal at
least six (6) months prior to the expiration of the then current Lease
term. The Lessor shall have the right any time prior to 30 days from the
commencement thereof to increase the “Base Rental” as specified in Section 6(a) hereof
to reflect a fair market rental rate for the building. In no event shall the
said increase be greater than the increase in the cost of living index for “all
items” as established by the Consumer Price Index (Urban Consumer - 1982 = 100)
published by the United States Bureau of Labor Statistics computed by
calculating the increase in said index for the sixth month preceding the month
in which any extension term is to commence, over said index for the sixth month
preceding the month of the original Commencement Date. (If such Consumer Price
Index shall be discontinued, the parties hereto shall thereafter accept
comparable statistics on the cost of living by an agency of the United States
Government or other responsible financial reports, or, if the parties cannot
agree upon a selection, one shall be chosen by arbitration.)


 


4.        Commencement Date. The
Commencement Dates shall be as Follows:


 


Suites G-102, 4,611 s.f., G-108,
590 s.f., G-109, 4,747 s.f., will commence as soon as the Lessor
commences the lease with Regional Oncology Associates for the First Floor of
the


 


2

















 


Biltmore Center. The rent
will commence according to this Lease except for the that portion of Suite G-102
that requires upfitting, to be agreed upon by the parties, the rent for this
area will be due the earlier of the agreed upon construction time or the
issuance of the City of Asheville Certificate of Occupancy.


 


Suite G-102 Extension, 902 s.f.,
shall commence upon the issuance of a Certificate of Occupancy by the City of
Asheville or upon initial consumption of utilities, which ever occurs sooner.


 


5.        Conditions of the Premises. The
Lessee shall at all times keep the Premises and all adjoining areas and utility
installations in a neat, orderly condition and in good order, replacement,
maintenance (including painting as needed, light bulbs, and replacement of
broken glass) and repair, except the portions thereof to be repaired by the
Lessor as provided herein. Lessee shall perform all such obligations in a
workmanlike manner and allow no liens to attach. Upon the expiration or other
termination of the Lease, Lessee shall quit and surrender the Premises to the
Lessor in the same condition as at the commencement of the original term,
natural wear and tear only expected. Lessee shall deliver all keys to the
Premises to Lessor at the expiration or other termination thereof.


 


6.        Rent. The Lessee shall pay the
Lessor without demand or offset at the Lessor’s office or at such other place
as the Lessor may from time to time designate in writing, Base Rental and


 


3

















 


Additional Rental during the
Lease term as follows:


 


A.     Base Rental. Effective as of the
Commencement Date and continuing for the full term of this Lease, Lessee shall
pay the following:


 


Suite G-102 4,611 s.f., Fifty-Nine
Thousand Nine Hundred and Forty-Three and 0/100 ($59,943.00) Dollars per annum
payable in the amount of Four Thousand Nine Hundred Ninety-Five and 25/100
($4,995.25) Dollars per month.


 


Suite G-109 4,747 s.f., Fifty-Two
Thousand Two Hundred Seventeen and 0/100 ($52,217.00) Dollars per annum payable
in the amount of Four Thousand Three Hundred Fifty-One and 41/100 ($4,351.41)
Dollars per month through July 31, 1998. Commencing August 1, 1998
the base rent shall be Sixty-One Thousand Seven Hundred Eleven and 0/100
($61,711.00) Dollars per annum payable in the amount of Five Thousand One
Hundred Forty-Two and 58/100 ($5,142.58) Dollars per month through the
remainder of the initial ten (10) year term.


 


G-108, 590 s.f., Seven
Thousand Three Hundred and Seventy-Five Dollars ($7,375.00) per annum payable
in the amount of Six Hundred Fourteen and 58/100 ($614.58) per month through July 31,
1998.


 


Commencing August 1,
1998 the base rent shall be Seven Thousand Six Hundred Seventy and 0/100
($7,670.00) Dollars per annum payable in the amount of Six Hundred Thirty-Nine
and 16/100 ($639.16) per month through the remainder of the


 


4

















 


initial ten (10) year
term.


 


G-102 Extension, 902 s.f., Three
Thousand One Hundred Twenty-Nine and 94/100 ($3,129.94) per annum payable in
the amount of Two Hundred Sixty and 82/100 per month through the term of the
initial lease or until such time as the Land Lease and Easement is increased.


 


Base Rentals shall be paid
by Lessee to Lessor in advance of the first day of each month. All rentals due
for the period prior to the Commencement Date shall be paid in advance.


 


B.        Additional Rental. Lessee shall
pay to Lessor as additional rental (“Additional Rental” sometimes referred to
as “Cost Pass Through” (“CPT” in every day language) Lessee’s share (as
hereinafter defined) of the increase each year in Operating Expense (as
hereinafter defined) over the Base Operating Expense (as hereinafter defined). “Lessee’s
share shall equal that portion of such increase that the square footage of the
Premises bears to all space available for lease in the Building. The term “Operating
Expense” shall include all Lessor’s costs of operation, replacement and
maintenance of the Building for each year including, but not limited to, all ad
valorem taxes, premiums for insurance, management costs, utility charges,
Building and parking lot security expense, parking lot maintenance expenses,
janitorial and maintenance expenses, but shall not include the cost of capital
improvements (such definition shall in no way increase Lessor’s obligations
hereunder). The term “Base Operating Expense” shall


 


5

















 


mean the sum of $3.00 per
square foot per calendar year. As soon as practical after December 31 of
each calendar year, the Lessor shall deliver to the Lessee (i) a statement
of Operating Expenses for the fiscal year just ended, (ii) a computation
of Lessee’s share of such Operating Expenses, and (iii) a statement of
Additional Rentals, if any, payable by Lessee, hereinafter called the “Notice
of Payment of Additional Rentals”. Lessee shall pay such Additional Rentals
within ten (10) days after receipt of Notice of Payment of Additional
Rentals. At Lessor’s option, Lessor may estimate the Additional Rentals and
bill the Lessee monthly in advance for such Additional Rentals; and Lessee
shall pay the same to Lessor in advance, at the same time and together with the
monthly Base Rentals. If such monthly billing is elected by Lessor, and Lessee’s
share of the Operating Expenses for the applicable calendar year exceeds the
Additional Rentals paid by Lessee for such calendar year, Lessee shall pay such
excess within ten (10) days after receipt of Notice of Payment of
Additional Rentals. If Lessee’s Share of the Operating Expenses for the
applicable calendar year is less than the Additional Rentals paid by Lessee for
such calendar year, Lessor shall immediately credit and reduce Lessee’s current
Additional Rental payments accordingly. All Additional Rentals for the calendar
year in which the lease term terminates shall be due and payable upon receipt
of Notice of Payment of Additional Rentals even if such Notice is received
after the lease termination date. With respect to the Additional Rentals,
within sixty (60) days from the end of each calendar year,


 


6

















 


Lessee upon reasonable
notice to Lessor, may have access to Lessor’s records to verify, at Lessee’s
expense, the Operating Expenses for the applicable calendar year.


 


The base operating expense
for the 902 square foot vault (G-102 Extension) shall be $3.47 less ad valorem
taxes per square foot per annum. Ad valorem taxes shall be paid directly by the
Lessee.


 


7.        Improvements and Alterations. The
Lessee shall have no right to make improvements or alterations on the Premises,
except in conformity with the following conditions:


 


A.     No improvements or alterations shall at any time be made which
shall effect the structure, impair the structural soundness or diminish the
value to the Building.


 


B.     No improvements or alterations shall be made at any time without
first obtaining the Lessor’s written approval of the plans and specifications
therefor, but such approval shall not be unreasonably withheld by the Lessor.
The Lessee shall furthermore first obtain the Lessor’s written approval before
any modification or changes are made in such plans and specifications after
Lessor’s approval thereof.


 


C.     No improvements or alterations shall be undertaken until Lessee
shall have procured and paid for all required municipal and other governmental
permits and authorizations of the various municipal departments and government
subdivisions having jurisdiction.


 


7














 


D.     All work done in connection with any improvements or alterations
shall be done by a properly licensed contractor who has been approved by the
Lessor. All work shall be performed in a good and workmanship manner and in
compliance with all Building and zoning laws, and with all other laws,
ordinances, rules, regulations and requirements of any federal, state or
municipal government or agency having jurisdiction and shall be promptly paid
for and completed free of all mechanic’s or materialmen’s liens. No work shall
be commenced until Lessee shall have delivered lien waivers to Lessor signed by
all contractors of Lessee.


 


E.      Any improvement or alteration to the Premises, except movable
furniture, trade fixtures and medical equipment, shall at once become the
absolute property (except Lessee shall list Leasehold improvements for ad
valorem taxes) of the Lessor and remain upon and be surrendered with the
Premises as a part thereof at the termination of the Lease without disturbance
or injury. The exception to this section shall be that contained in Exhibit IV
Paragraph 2.


 


8.        Lessor’s Obligations. The Lessor
shall furnish, to the extent it is able, a reasonable amount of electric power,
janitorial service, water and heat and air conditioning sufficient in the Lessor’s
judgment, to keep the Premises comfortable for use and occupancy. The Lessor
shall not be liable for failure to furnish or delay in furnishing elevator
services, electric power, heat, air conditioning, water or janitorial service,
when such failure is caused by the need for repairs, a strike or labor


 


8

















 


controversy, a riot, the
inability to secure fuel for the Building, any accident or casualty,
unauthorized act or default by janitors, other tenants or employees of Lessor,
or any cause beyond the reasonable control of the Lessor. No failure shall
constitute eviction or constructive eviction.


 


9.        Repairs. The Lessor shall have no
duty to the Lessee to make any repairs or improvements to the Building except
structural repairs necessary for safety and tenantability providing Lessee
promptly notifies Lessor of the need therefor. The Lessor shall not be required
to make, and Lessee shall make any such repairs made necessary by the act or
neglect of the Lessee, its agents, employees or visitors.


 


10.      Loss or Damage and Insurance. The
Lessor shall not be liable for any damage to persons or property in the
Premises or in or about the Building, whether caused by Acts of God, gas smoke,
steam, electricity, wind, ice, rain, snow, water or otherwise. Lessor shall not
be liable for any damage to persons or property sustained by Lessee or others
howsoever arising whether due to the Premises or any part thereof being out of
repair, or due to the happening of any accident in or about the Building, or
due to any negligence of any tenant or occupant of the Building or any other
person or otherwise. The Lessee shall indemnify the Lessor and hold it harmless
from any and all claims, liability and loss, including attorneys fees and
costs, for personal injuries or property damage sustained or claimed to have
been sustained by any person or property in, upon or about the Premises whether
arising


 


9

















 


from the Lessee’s conduct of
business on the Premises, the negligence, misconduct or breach of any provision
of this Lease by the Lessee, his agents, servants or employees, or any other
person entering upon Leased Premises under express or implied invitation of the
Lessee or otherwise. Lessee shall pay for and keep in force a liability
insurance policy with a minimum $500,000 single limit in companies satisfactory
to Lessor covering Lessee’s business operations on the Premises, naming Lessor
as an additional insured thereunder and with a duplicate original thereof to be
delivered to Lessor. In addition Lessee shall pay for and keep in force fire
insurance with extended coverage insuring to their full insurable value all of
Lessee’s personal property, fixtures and equipment, and copies of such
insurance shall be delivered to Lessor.


 


11.      Use of Premises. The Premises shall
be used and occupied by the Lessee solely for the purpose of a medical office.
The Lessee shall not use the premises in any manner which will increase the
premium rate for any kind of insurance affecting the Building in which the
Premises are located, and if, because of anything done or caused to be done,
permitted or omitted by the Lessee, the premium rate for any kind of insurance
affecting such Building shall be raised, then, in such event, the amount of the
increase in premium which the Lessor shall be thereby obligated to pay for
insurance shall be paid by the Lessee to the Lessor on demand as additional
rental.


 


12.      Enjoyment of Premises. The Lessee,
on paying the rental and keeping and performing the agreements and covenants
herein


 


10

















 


contained, shall be
undisturbed by Lessor subject, however, to the terms of this Lease.


 


13.      SubLease or Assignment. The Lessee
shall not, without the written consent of the Lessor, assign this Lease or
sublet the Premises or any part hereof. Should Lessor’s permission therefore be
given, any rent or other amounts received by Lessee as a Sublessor or Assignor
in excess of the amounts due to Lessor shall be the property of the Lessor and
shall be promptly delivered to Lessor as additional rental. It is expressly
understood and agreed by Lessee that Lessee’s reputation constitutes
substantial consideration for Lessor’s entering herein. Lessor’s consent
hereunder may be withheld in its sole discretion.


 


14.      Removal of Personal Property. So
long as Lessee is not then in default, the Lessee may, at the termination
hereof, remove all personal property and movable trade fixtures which Lessee
has placed in the Premises, provided Lessee repairs all damages to the Premises
caused by such removal and the Premises are placed in the condition as existed
at the Commencement Date. If the Lessee shall fail to remove all such property
from the Premises upon the termination of this Lease for any cause whatsoever,
the Lessor may, at its option, remove the same in any manner that the Lessor
may choose and store it at Lessee’s expense without liability to the Lessee for
loss thereof. In such event, the Lessee shall pay to Lessor on demand any and
all expenses incurred in such removal, including court costs, attorney’s fees,
and storage charges for the length of time the same shall be in the Lessor’s
actual or


 


11

















 


Constructive possession.
Alternatively, the Lessor may, at its option deem the property abandoned and
immediately become the owner thereof or, without notice, and without legal
process, sell the property or any part thereof at a public or private sale for such
price as the Lessor may obtain, and apply the proceeds of the sale first to the
expenses incident to removal and sale of said property and then to any amounts
due under this Lease. Should notice of sale be required by laws, then three (3) days
notice shall be deemed commercially reasonable and sufficient. If the Lessee is
in default, the Lessor shall have a lien on said personal property and movable
trade fixtures as security for all sums due from the Lessee to the Lessor and
shall have the right to sell said property as above provided unless there is
then a legally enforceable lien on the same superior to the rights of the
Lessor in said property.


 


15.      Personal Property Risk. All
personal property brought into the Premises by the Lessee shall be at the risk
of the Lessee only, and Lessor shall not be liable for theft thereof or any
damage thereto howsoever occasioned whether by an act of tenants, other
occupants of the Building, any other person or otherwise.


 


16.      Lessee’s Obligation to Occupy and
Lessor’s Consent to Vacate. The Lessee shall occupy the Premises upon the
Commencement Date of this Lease as stated in the Section 4 hereof. The
Lessee shall not abandon or vacate the Premises during the term of the Lease
without the prior consent of the Lessor.


 


12

















 


17.      Default


 


A.     Any one and all of the following events shall constitute an
Event or Default.


 


i.           If Lessee files a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act or voluntarily takes advantage of
any such act or makes an assignment for the benefit of creditors;


 


ii.          If involuntary proceedings under any bankruptcy law,
insolvency or receivership action shall be instituted against Lessee or if a
receiver or trustee shall be appointed for all or substantially all of the
property of Lessee, and such proceedings are not dismissed, or the receivership
or trusteeship vacated, within ten (10) days after the institution or
appointment;


 


iii.         If Lessee fails to pay rentals to the Lessor or fails to pay
any other charges when due, and does not make the payment within five (5) days
after written notice thereof. For the purposes hereof, such other charges shall
constitute additional rentals;


 


iv.         If Lessee fails to fully perform and comply with all
conditions of Lease Agreement and such failure of performance continues for a
period of ten (10) days after notice thereof;


 


v.          If Lessee vacates or abandons the Premises;


 


vi.         If the interest of Lessee is transferred or assigned to any
other person, firm or corporation except as herein permitted;


 


13

















 


vii.        If Lessor, in any three (3) months of any Lease Year,
give any notice to Lessee pursuant to subsection iii and iv
above, notwithstanding Lessee’s cure of default within the allowable period or
periods.


 


viii.       If Lessee loses their license to practice or is otherwise
unable to practice full time for a period exceeding 90 days in one calendar
year.


 


B.     Upon the occurrence of any Event of Default as set forth above,
Lessor shall have at its option any one or more the following rights:


 


i.           To cancel and terminate the Lease Agreement and all
interests of the Lessee hereunder by giving notice of such cancellation and
termination not less than ten (10) days prior to the effective date of
such termination. Upon the expiration of said ten (10) day period, the
Lessee shall have no further rights under this Lease Agreement; and/or


 


ii.          To make any payment required of Lessee herein or correct
any condition required” to be corrected by Lessee, and Lessor shall have the
right to enter the Premises for the purpose of correcting any such condition
and to remain on the Premises until the complete correction of such condition.
However, no expenditure by Lessor on behalf of Lessee shall be deemed to waive
or release Lessee’s breach hereof and Lessor shall retain all rights to proceed
against Lessee as set forth herein; and/or


 


iii.         To reenter the Premises immediately with or without Order of
Court and without being guilty of trespass, remove


 


14

















 


the property and personnel
of Lessee and store such property in a public warehouse or such other location
selected by Lessor, all at the expense of Lessee. After such reentry, Lessor
shall have the right to terminate this Lease Agreement by giving ten (10) days
notice of termination to Lessee, but without such notice, the reentry by Lessor
shall not terminate this Lease Agreement. On termination, Lessor may recover
from Lessee all damages resulting from Lessee’s breach, including the cost of
recovery of the Premises and placing them in satisfactory condition, the value
of the balance of this Lease over the reasonable rental value of the Premises
for the remainder of the Term, all of which sums shall be immediately payable
to Lessor from Lessee; and/or


 


iv.         To relet the Premises or any part thereof for any term, with
or without terminating the Lease, and at such rentals and on such other terms
as Lessor may select including the right to grant free rental, and to alter and
repair the Premises as Lessor deems necessary. Should Lessor relet the
Premises, Lessee shall pay all expense of reletting including brokers’ or
finders’ fees and such reasonable attorneys’ fees as Lessor may incur. Lessor
shall apply the rent received from reletting in the following order: (1) To
expenses of reletting; (2) To Lessee’s indebtedness to Lessor other than
for rentals; and (3) To rentals due to the future; and/or


 


v.          To accelerate the rentals with or without entry; and/or


 


15

















 


vi.         To collect reasonable attorney fees actually incurred and
not exceeding fifteen (15%) percent of the amounts due from the Lessee to the
Lessor hereunder, together with court costs incurred in enforcing the rights of
the Lessor hereunder; and/or


 


vii.        All other rights and remedies provided by law for a Lessor
with a defaulting Lessee including all such money damages as Lessor shall be
entitled to pursuant to the law of damages.


 


18.      Governmental Requirements. The
Lessee shall, at its own expense, promptly comply with all rules, regulations,
statutes, ordinances, and requirements of any legally constituted public
authority in connection with Lessee’s occupancy of the Premises.


 


19.      Condemnation. If the whole or any
part of the Premises shall be taken by any public authority under the power of
eminent domain, then this Lease shall terminate as to the part taken on the
date possession of that part is surrendered (or as of the date of Judgment of
Order, if earlier) and any unearned rent paid or credited in advance shall be
refunded. The Lessee shall not be entitled to receive any part of any award or
awards arising out of such condemnation whether for the value of this
Leasehold, Leasehold improvements or otherwise. The Lessee may at its own
expense commence independent proceedings against the public authority
exercising the power of eminent domain to prove and establish any other damage
Lessee may have incurred.


 


20.      Fire or Casualty. If the Premises
shall be partially or completely damaged or destroyed by fire or other
casualty, Lessor


 


16

















 


shall have the right to
terminate this Lease Agreement. If said option to terminate is not exercised by
Lessor, Lessor shall, as soon as reasonably possible, effect the required
repairs and reconstruction of the Premises and during such time as said repairs
or reconstruction are being made, the rentals hereinabove provided shall be
abated from the date Lessee makes the Premises available to Lessor to effect
such repairs and construction, but only to the extent and in the proportion
that the Premises are untenantable for the normal use thereof by Lessee. Any
other provisions contained herein notwithstanding, the Lessor shall be required
and obligated to effect repairs and reconstruction only to the extent of any
sums of money, if any, which are received by Lessor under Lessor’s insurance
coverage as a direct result of said fire or other casualty.


 


21.      Inspection. The Lessor shall have
the right to enter and grant licenses to others to enter the Premises at any
time during all reasonable hours to examine the same or to make such repairs,
additions or alterations as may be deemed necessary for the safety, comfort or
preservation thereof, or of the Building and to exhibit the Premises to
prospective tenants, mortgagees or purchasers and for the purpose of removing
placards, signs, fixtures, alterations or additions which do not conform to the
terms of this Lease or to the rules and regulations of the Building. No
such entry shall constitute actual or constructive eviction.


 


17














 


22.      Subordination to Mortgages. This
Lease Agreement and the rights of Lessee are subordinate to and shall be
subordinate to the lien of any first mortgage or deed of trust (hereinafter
called “Mortgage”) whether such Mortgage is currently a lien on the Premises or
hereafter becomes a lien on the Premises and no further agreements or documents
shall be required to render this Lease the Lessee’s rights subordinate to such
Mortgage. At Lessee’s request and at Lessee’s expense, Lessor shall endeavor to
obtain for Lessee a non-disturbance agreement in recordable form providing in
substance that Lessee’s tenancy shall not be disturbed nor affected by any
default under the Mortgage provided that Lessee is not in default under any of
the terms, conditions and covenants hereof. Lessee shall at all times upon
request of Lessor promptly furnish documents stating that this Lease is in full
force and effect, that no defaults of the Lessor exist, and such other matters
as are customarily contained in what is known as an “estoppel letter” or a “good-standing
letter”. Should Lessee fail to deliver such documents within ten (10) days
of Lessor’s request thereof, Lessor shall be deemed Lessee’s attorney-in-fact
for the purpose of executing such documents in the name of Lessee unless Lessee
has within such period provided written notice to Lessor or Lessee’s claim of
Lessor’s default.


 


23.      Signs and Hallways. The Lessee
shall not paint or place signs or other advertising material upon the Premises
except with the consent of the Lessor. Lessee shall place no benches, chairs,
or other items on the hallways or other areas of the Building or


 


18

















 


Premises.


 


24.      Notices. Any notice required or
allowed by this Lease to be given to either the Lessor or the Lessee must be in
writing and shall only be deemed delivered upon deposit in the United States
Mail sent via “Certified” or “Registered” mail, postage prepaid and properly
addressed to the parties as follows:


 


	
  Lessee:

  	
  Mrs. Charlene R.
  Thomas, MHA

  
	
   

  	
  Administrator

  
	
   

  	
  St. Joseph’s Regional
  Cancer Center

  
	
   

  	
  445 Biltmore Center,
  Suite G-102

  
	
   

  	
  Asheville, N. C. 28801

  



 


	
  Lessor:

  	
  Ken M. Michalove,
  Executive Vice President

  
	
   

  	
  Mountain Health
  Services, Inc.

  
	
   

  	
  Managing General Partner -
  445 Biltmore

  
	
   

  	
  Center Limited Partnership

  
	
   

  	
  445 Biltmore Center

  
	
   

  	
  445 Biltmore Avenue,
  Suite G-101

  
	
   

  	
  Asheville, N. C. 28801

  



 


25.      Rules and Regulations. The
Lessor has made, and from time to time shall make, rules and regulations
for the government of the Premises. These rules and regulations whether
now in existence or hereafter made, are, and shall be, part of this Lease and
binding upon the Lessee to the same extent as if set out herein and copies
thereof shall be delivered to the Lessee.


 


26.      Staff Privileges and Compliance with
Directives. Lessee acknowledges that he or, if Lessee is a professional
association, the shareholders of Lessee, of if Lessee is a partnership, the
partners of Lessee, have staff privileges in good standing at the St. Joseph’s
Hospital and further covenants to retain the same during the term of this
Lease. Lessee covenants and agrees to abide by the Ethical and Religious
Directives for Catholic Health


 


19

















 


easement, restriction or
rights-of-way shall prohibit the use of the Premises as intended pursuant to Section 11
above.


 


38.      Stamp Tax or Sales Tax on Lease.
Should any governmental or quasi-governmental authority having jurisdiction
over the Premises declare or otherwise assess any tax on Leases or Leaseholds
whether designated as a stamp tax, sales tax or otherwise, then in any of such
events, all taxes declared or charged shall be the obligation of the Lessee and
shall be paid by Lessee to such authority or shall be paid to Lessor in reimbursement
and as additional rental.


 


39.      Lessor’s Liability. Notwithstanding
anything to the contrary contained herein, in the event of any breach hereof by
Lessor or failure of Lessor to perform any of its obligations hereunder, Lessor
shall have no personal liability for such matters but Lessee shall look solely
to Lessor’s interest in the Premises for satisfaction. Lessor shall upon any
sale of its interest in the Premises be relieved of further performance
hereunder. Lessee by execution hereof attorns to any such subsequent purchaser.


 


40.      Lessor’s Performance of Lessee’s
Covenants. Should Lessee, after seven (7) days’ notice from the
Lessor, fail to do any of the things required to be done by it under the
provisions of this Lease, Lessor, in addition to any and all other rights and
remedies, may (but shall not be required to) do the same or cause the same to
be done, and the reasonable amount of any money expended by Lessor in
connection therewith shall constitute additional rental due from Lessee to
Lessor and shall be payable as


 


23

















 


rental on the date for
payment of rentals immediately following such expenditure. In addition to the
foregoing, Lessee shall pay as further additional rental twenty percent (20%)
of the amount due Lessor under this Section 40 as a service and overhead
fee.


 


41.      Lessee’s Taxes. Lessee shall
promptly list for taxes and pay the taxes on all personal property placed by
Lessee on the Premises prior to the delinquency date thereof. In addition,
Lessee shall pay all ad valorem taxes assessed against the building addition
designated herein as G-102 Extension. Copies of all receipts marked “paid”
shall be delivered to Lessor prior to the delinquency date.


 


42.      Entire Agreement. This Lease
agreement contains the entire understanding and agreement between Lessor and
Lessee, and all prior negotiations and understandings are merged herein.


 


43.      Electricity, Water and Sewer.
Lessor may request that the electric, water and sewer utility companies
determine if Lessee is utilizing more electricity, water and sewer service than
the Building average per square foot for all tenants after Lessee occupies the
space. If the utilization is greater, Lessee shall pay the difference in the
averages multiplied by the number of square feet in the Premises to the Lessor
on a monthly basis.


 


44.      Limitation of Use. The use of the
Premises by Lessee shall only be described in Section 11 hereof. The
Lessee agrees that it will add additional equipment, capacity and/or scope of
services rendered only with the prior written consent of Lessor.


 


24

















 


45.      Quiet Use of Premises. Lessor
represents and warrants that it has full right and authority to enter into this
Lease and that Lessee, upon paying the rental herein set forth and performing
its other covenants and agreements herein set forth, shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof without hindrance
of molestation from Lessor or any third party claiming through Lessor, subject
to the terms and provisions of this Lease.


 


46.      Holding Over By Lessee. Lessee
shall not acquire any right of interest in the Premises by remaining in
possession after termination of this Lease. During any such period of holding
over, Lessee shall be a tenant at will subject to all other obligations imposed
upon it by this Lease. However, this Lease shall be deemed to have been
extended for an additional one-year period if (at any time after ten (10) days
from the termination of this Lease, but before Lessee vacates the Lease
Premises) Lessor notifies Lessee of Lessor’s election that the holding over
shall result in such an extension. During any such extension the terms of this
Lease, including rent at the rate then applicable as provided in Section 6A
and 6B of this Lease, shall remain in full force and effect during said
extended term of this Lease.


 


47.      Ethical Practices. It is expressly
understood and agreed by Lessee that Lessee’s reputation constitutes substantial
consideration for Lessor’s entering this agreement. Lessee covenants and agrees
to perform its business in an ethical manner and prohibit activities on the
Premises not in keeping with ethical


 


25

















 


religious directives for
Catholic health care facilities.


 


26

















 


IN WITNESS WHEREOF, the
Lessor has executed this agreement by an officer duly authorized to execute,
seal and deliver this agreement for and on behalf of the Lessor, and the Lessee
has executed, sealed and delivered this agreement or has caused this agreement
to be executed, sealed and delivered by this officer or general partner
thereunto authorized (whatever applicable), this the day and year first above
written.


 


 


	
  ATTEST:

  	
   

  	
  Lessor 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  445 Biltmore Center

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Authorized
  Signatory

  	
   

  	
  By:

  	
  /s/ Kenneth M. Michalove

  
	
   

  	
   

  	
   

  	
   

  	
  Kenneth M. Michalove

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS

  	
   

  	
   

  	
  Lessee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Authorized
  Signatory

  	
   

  	
  By:

  	
  /s/ G. John Coli

  
	
   

  	
   

  	
   

  	
   

  	
  G. John Coli

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS

  	
   

  	
   

  	
  Lessee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Authorized
  Signatory

  	
   

  	
  By:

  	
  /s/ Charles C. Thomas

  
	
   

  	
   

  	
   

  	
   

  	
  Charles C. Thomas, II,
  M.D.

  
						



 


27

















 


	
  STATE OF NORTH CAROLINA

  	
   

  
	
   

  	
  LESSOR

  
	
  COUNTY OF BUNCOMBE

  	
   

  



 


I, a Notary Public of said
State and County, do hereby certify that Kenneth M. Michalove, Exe. Vice
President personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.


 


WITNESS my hand and Notarial
Seal, this 4th day of October, 1996.


 


 


	
   

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
  NOTARY PUBLIC

  



 


 


My Commission Expires


 


	
  My Commission Expires
  9-14-2000

  	
   

  



 


28

















 


	
  STATE
  OF NORTH CAROLINA

  	
   

  
	
   

  	
  LESSEE

  
	
  COUNTY
  OF BUNCOMBE 

  	
  G. John Coli

  



 


I, a Notary Public of said
State and County, do hereby certify that G. John Coli personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.


 


WITNESS my hand and Notarial
Seal, this 4th day of October, 1996.


 


 


	
   

  	
  NOTARY PUBLIC

  
	
   

  	
  /s/ Authorized Signatory

  



 


My Commission Expires


 


	
  My Commission Expires
  9-14-2000

  	
   

  



 


STATE OF NORTH CAROLINA


 


29














 


	
  COUNTY OF PUNCOMBE

  	
   

  	
  LESSEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Charles C.
  Thomas, II, M.D.

  



 


I, a Notary Public of said
State and County, do hereby certify that Charles C Thomas II personally
appeared before me this day and acknowledged the due execution of the foregoing
instrument.


 


Witness my hand and Notarial
Seal, this 4th day of October, 1996.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Authorized Signatory

  
	
   

  	
  Notary Public

  



 


My Commission Expires


 


	
  7-18-99

  	
   

  



 


30

















 


Exhibits


 


I          Letter to G. John Coli and
Charlene R. Thomas June 3, 1996


 


II         Memorandum to Charlene R.
Thomas - July 22, 1996


 


III        Memorandum to G. John Coli
and Charlene R. Thomas - September 9, 1996


 


IV        Memorandum to G. John Coli
and Charlene Thomas - September 12, 1996


 


V         Ethical and Religious
Directives for Catholic Health Care Facilities


 


VI        Floor Plan for offices and
accelerator vault


 

















 


Exhibit I


 


	
  BILTMORE
  CENTER

  	
  

  	
  445 BILTMORE AVENUE ASHEVILLE, NORTH CAROLINA 28801

  



 


June 3,
1996


 


G. John Coli, Ph.D.,

President & COO

St. Joseph’s Health Services Corporation

345 Biltmore Avenue

Asheville, N. C. 28801


 


Mrs. Charlene R.
Thomas, MHA

Administrator

St. Joseph’s Regional Cancer Center (SJRCC)

Suite G-109, 445 Biltmore Center

Asheville, N. C. 28801


 


Dear John and Charlene:


 


Based on the information
that I have received from you regarding SJRCC space needs for the future, I
am making you the following offer subject to the approval of the Finance
Committee and Board. For purposes of this proposal “Lessor” shall be the 445
Biltmore Center Limited Partnership and “Lessee” shall be SJRCC.


 


Lessor:


 


Lease G-102, 4,611 s.f.,
commencing seven days from the date we receive notice from Regional Oncology
Associates (ROA) that they have vacated the space and moved to their permanent
offices on the first floor.


 


Lease G-109 and G-108 as
described under the Lessee section.


 


Provide the services of
Ernie Peterson as project manager and Mountain Health Services General
Contractor license to do the following: pass through with a 10% add on, the
cost for subcontract work and materials; analyze bids and give his
recommendation to you for your final selection; review and approve invoices for
the project and recommend payment of same to you; and, make sure the job is
completed on time.


 


Due to the commitments we
have made and plan to make with regard to tenants that are not in the St.
Joseph’s family; and, in keeping with the requirement we have made of the
Mission+St. Joseph’s System, I will be recommending that the Lessee pay
all of their moving and costs of upfitting.


 

















 


Lessee:


 


Effective with the
commencement date of the lease for G-102 agree to an initial lease term of 10
years for G-102, G-109 and G-108 for a total of 9,948 s.f. with an option to
renew for 10 years.


 


Agree to the lease rates for
the initial term as follows:


 


G-102 (4,611
s.f.) $13.00 s.f. plus cost pass through;


G-109 (4,747
s.f.) $11.00 s.f. plus cost pass through until July 31, 1998 and $ 13.00
s.f. plus cost pass through thereafter; and,


G-108 (
590 s.f.) $11.00 s.f. plus cost pass through until July 31, 1998 and $
13.00 s.f. plus cost pass through thereafter.


 


Agree to the option to renew
for a base rate of the “market rate” for the building at that time, plus cost
pass through for 9,948 s.f.


 


Comply with the conditions
of the standard form 445 Biltmore Center Limited Partnership lease.


 


Execute Mountain Health
Service’s standard agreement between Contractor and Owner for the upfitting of
the offices.


 


Provide personal signature
guarantees for the lease of appropriate parties.


 


Pay for architect,
engineering and upfitting.


 


With your concurrence to
this proposal, I will present this to the Finance Committee on June 17,
1996. Please sign one of the attached copies and return it to me as soon as
possible.


 


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Ken M. Michalove

  
	
   

  	
   

  	
  Ken M. Michalove,
  Executive Vice President 

  Mountain Health Services, Inc.

  
	
   

  	
   

  	
  Managing General Partner

  
	
   

  	
   

  	
  445 Biltmore Center
  Limited Partnership

  



 


I concur in this offer, as ammended
in the attached memorandums dated Sept. 9, 1996 and Sept. 12, 1996.


 


	
  /s/
  G. John Coli

  	
   

  	
  10/15/96

  	
   

  	
   

  
	
  G.
  John Coli, Ph. D.

  	
   

  	
  Date

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Charles C. Thomas

  	
   

  	
  9/16/1996

  	
   

  	
   

  
	
  Charles
  C. Thomas, III, M.D.

  	
   

  	
  Date

  	
   

  	
   

  



 

















 


Exhibit II


 


Memorandum


 


	
  To:

  	
  Charlene Thomas

  
	
   

  	
   

  
	
  From:

  	
  Ken Michalove

  	
  Date: July 22, 1996

  
	
   

  	
   

  	
   

  
	
  Subject:

  	
  SJRCC Lease

  



 


Charlene, when we met on June 14,
1996 we discussed your questions regarding the proposed lease between 445
Biltmore Center and SJRCC. For reference sake I have attached a copy of the
letter we referred to during our meeting.


 


In an effort to have a
proposal to present to the Finance Committee on August 19, 1996 I would
like to have a signed copy of the lease that I sent June 14 by August 5.
The following modifications will be made to that lease:


 


The lease for G-102, 4,611
s.f., will commence as soon as the Biltmore Center commences the lease with ROA
for the first floor. The rent will be due according to the lease except for the
following amount of square feet. On that portion of the 4,611 s.f. that
requires upfitting, to be agreed upon by the parties, the rent will be due the
earlier of the agreed upon construction time or the issuance of the Certificate
of Occupancy.


 


G-108, which is the old
private dining room for Cafe 445 now used by SJRCC as a conference room &
library, will be part of the square footage included in the continuing lease
agreement.


 


SJRCC shall contract with
Mountain Health Services, Inc. and sign the standard form contract for
project management of the upfitting. The cost to SJRCC for these services will
be the actual sub-contract work and materials plus 10%, excluding architect
fees. Ernie Peterson will do the following: analyze bids and give you his
recommendation for final approval; review and approve invoices for the project
and recommend payment of same to you; and, make sure the job is completed on
schedule. Enclosed is a copy of the Mountain Health Services standard contract.


 


As I mentioned to you, I
am not at liberty to discuss the arrangements we have with other tenants
regarding their leases. However, as I suggested you can contact Marge Beazley
to see if she wants to release that information. As it stands under the
proposal that I made to SJRCC, the Lessor expects SJRCC to pay all upfitting
costs including architect fees.


 


In addition, Lessee would
pay for any moving costs associated with the consolidation of the offices.


 


We cannot put a cap on cost
pass through. However, in the past 12 years they have averaged 3 to 5 percent.


 

















 


In the option to renew, I
will change the section to read as follows: “ . . . . . at least six (6) months
prior to the expiration of the then current Lease term. The Lessor shall have
the right any time prior to 30 days from the commencement thereof to increase
the “Base Rental” as specified in Section 6 (a) hereof to reflect a
fair market rate for the building. In no event shall the said increase be
greater than the increase in the cost of living index for “all items” as
established by the Consumer Price Index (Urban Consumer - 1982 = 100) published
by the United States Bureau of Labor Statistics computed by calculating the
increase in said index for the sixth month preceding the month in which any
extension term is to commence, over said index for the sixth month preceding
the month of the original Commencement Date. (If such Consumer Price Index
shall be discontinued, the parties hereto shall thereafter accept comparable
statistics on the cost of living by an agency of the United States Government
or other responsible financial reports, or, if the parties cannot agree upon a
selection, one shall be chosen by arbitration.)”


 


We will meet at the
appropriate time to make sure that architect, engineering and upfitting costs
that effect SJRCC and ROA are appropriately assigned.


 


This memo, my letter to
Dr. Thomas and Dr. Coli of June 3 and the proposed lease will
constitute the documents that I will submit to the Finance Committee on August 19.


 


Per your request, I
will recommend to the Finance Committee that we waive the personal signature
guarantees.


 


If you have any questions,
please let me know. Otherwise, I would appreciate it if you would have
Dr. Thomas and Dr. Coli sign the June 3 proposal.


 


Thanks for your help in
getting this completed.


 


CT714.96


 

















 


AGREEMENT
BETWEEN OWNER AMD CONTRACTOR


 


AGREEMENT


 


made as of the
                        
day of                 
in the year of Nineteen Hundred and Ninety
                          .


 


BETWEEN THE OWNER:


 


 


	
  AND THE CONTRACTOR:

  	
  Mountain Health
  Services, Inc.

  
	
   

  	
  Suite G-101, 445
  Biltmore Ave.

  
	
   

  	
  Asheville. N.C. 28801

  



 


 


THE PROJECT:


 


The Owner and the Contractor
agree as set forth below.


 

















 


ARTICLE 1

THE WORK


 


1.1       The Contractor shall
coordinate and supervise all subcontractors furnishing materials and performing
the Work as required by the Contract Documents. In addition, the Contractor
shall supply additional labor and materials at Contractor’s cost, as needed and
required by the Contract Documents.


 


ARTICLE 2

TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


 


2.1       The Work to be performed
under this Contract shall be commenced immediately and, subject to authorized
adjustments and availability of custom cabinets. Substantial Completion shall
be achieved not later than
                        .


 


ARTICLE 3

CONTRACT SUM


 


3.1       The Owner shall pay the
Contractor in current funds for the performance of the Work, subject to
additions and deductions by Change Order as provided in the Contract Documents,
the Contract Sum of
                                                        
(S              ).


 


3.2       The Contract Sum is
determined as follows: Per the Contractor’s review of the plans and
specifications as approved by the Owners. It is noted that allowances for floor
and wall coverings labor was used due to the lack of sufficient information to
price upgrade materials the Owner may select.


 


ARTICLE 4

PROGRESS PAYMENTS


 


4.1       The Owner shall make
progress payments on account of the Contract Sum to the Contractor as provided
in the Contract Documents and based upon 95%
of the cost of labor and materials incorporated in the work and
materials suitably stored on the site for the period ending the last day of the
month as follows: Requests for payment submitted to the Owner by the first of
the month shall be paid to the Contractor not later than the 7th day of the
following month. The final 5%  retainage
will be paid in accordance with paragraph 5.1 of this agreement.


 

















 


ARTICLE 5

FINAL PAYMENT


 


5.1       Final payment, constituting
the entire unpaid balance of the Contract Sum, shall be paid by the Owner to
the Contractor when the Work has been completed, the Contract fully performed,
and the Work accepted by the Owner.


 


ARTICLE 6

ENUMERATION OF CONTRACT DOCUMENTS


 


6.1       The Contract Documents,
which constitute the entire agreement between the Owner and the Contractor, are
listed in Article 7 and, except for Modifications issued after the execution
of this Agreement, are enumerated as follows:


 


GENERAL
CONDITIONS


 


ARTICLE 7

CONTRACT DOCUMENTS


 


7.1       The Contract Documents
consist of this Agreement, the Drawings, the Specifications, all Addenda issued
prior to the execution of this Agreement, and all Modifications issued after
execution of the contract such as Change Orders, written interpretations and
written orders for changes in the Work. The Contract Documents constitute the
entire agreement between the Owner and Contractor with reference to the Work.
The intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Work. The Contract Documents are
complementary, and what is required by any one shall be as binding as if
required by all. Work not covered in the Contract Documents will not be
required unless it is consistent therewith and reasonably inferable therefrom
as being necessary to produce the intended results.


 

















 


7.2       By executing the Contract,
the Contractor represents that he has visited the site and familiarized himself
with the local conditions under which the Work is to be performed.


 


7.3       The Work comprises the
completed construction required by the Contract Documents and includes all
labor necessary to produce such construction, and all materials and equipment
incorporated or to be incorporated in such construction.


 


ARTICLE 8

OWNER


 


8.l        The Owner shall furnish all
surveys and a legal description of the site when, required.


 


8.2       Except as provided in
Paragraph 9.5, the Owner shall secure and pay for necessary approvals,
easements, assessments and charges required for the construction, use or
occupancy of permanent structures or permanent changes in existing facilities.


 


8.3       If the Contractor fails to
correct defective Work or persistently fails to carry out the Work in
accordance with the Contract Documents, the Owner, by written order, may order
the Contractor to stop the Work, or any portion thereof, until the cause for
such order has been eliminated; however, this right of the Owner to stop the
Work shall not give rise to any duty on the part of the Owner to exercise this
right for the benefit of the Contractor or any other person or entity.


 


ARTICLE 9

CONTRACTOR


 


9.1       The Contractor shall
supervise and direct the Work, using his best skill and attention and he shall
be solely responsible, for all construction means, methods, techniques,
sequences and procedures for coordinating all portions of the Work under the
Contract.


 


9.2       Unless otherwise
specifically provided in the Contract Documents, the Contractor shall provide
and pay for all labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation, and other facilities and
services necessary for the proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Work.


 


9.3       The Contractor shall at all
times enforce strict discipline and good order among his employees and shall
not employ on the work any unfit person or anyone not skilled in the task


 














 


9.4       The Contractor warrants to
the Owner that all materials and equipment incorporated in the Work will be new
unless otherwise specified, and that all work will be of good quality, free
from faults and defects under normal use, service and maintenance, and in
conformance with the Contract Documents. Such warranty shall remain in effect
for a period of one (1) year after acceptance of the Work by the Owner
except as to items which are warranted by the manufacturer thereof direct to
Owner or as to which warranties have been validly assigned by Contractor to
Owner. All Work not conforming to these requirements may be considered
defective.


 


9.5       Unless otherwise provided in
the Contract Documents, the Contractor shall pay all sales, consumer, use and
other similar taxes which are legally enacted at the time bids are received,
and shall secure and pay for the building permit and for all other permits and
governmental fees, licenses and inspections necessary for the proper execution
and completion of the Work.


 


9.6       The Contractor shall give
all notices and comply with all laws, ordinances, rules, regulations, and
lawful orders of any public authority bearing on the performance of the Work.


 


9.7       The Contractor shall be
responsible to the Owner for the acts and omissions of his employees,
Subcontractors and their agents and employees, and other persons performing any
of the Work under a contract with the Contractor.


 


9.8       The Contractor shall review,
approve and submit all Shop Drawings, Product Data and Samples required by the
Contract Documents. The Work shall be in accordance with approved submittals.


 


9.9       The Contractor at all times
shall keep the premises free from accumulation of waste materials or rubbish
caused by his operations. At the completion of the Work he shall remove all his
waste materials and rubbish from and about the Project as well as his tools,
construction equipment, machinery and surplus materials.


 


9.10     The Contractor shall pay all
royalties and license fees. He shall defend all suits or claims for
infringement of any patent rights and shall save the Owner harmless from loss
on account thereof.


 

















 


9.11     To the fullest extent
permitted by law, the Contractor shall indemnify and hold harmless the Owner
and his agents and employees from and against all claims, damages, losses and
expenses, including but not limited to attorney’s fees arising out of or
resulting from the performance of the Work, provided that any such claim,
damage, loss or expense (1) is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other
than the Work itself) including the loss of use resulting therefrom, and (2) is
casused in whole or in part by any negligent act or omission of the Contractor,
any Subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, regardless of whether or not
it is caused in part by a party indemnified hereunder. Such obligation shall
not be construed to negate, abridge, or otherwise reduce any other right or
obligation of indemnity which would otherwise exist as to any party or person
described in this Paragraph 9.11. In any and all claims against the Owner or
any of his agents or employees by any employee of the Contractor, any Subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable the indemnification obligation under this Paragraph
9.11 shall not be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for the Contractor or any
Subcontractor under worker’s or workmen’s compensation acts, disability benefit
acts or other employee benefit acts.


 


ACTICLE
10

SUBCONTRACTS


 


10.1     A Subcontractor is a person
or entity who has a direct contract with the Contractor to perform any of the
Work at the site.


 


10.2     Unless otherwise required by
the Contract Documents or in the Bidding Documents, the Contractor, as soon as
practicable after the award of the Contract, shall furnish to the Owner in
writing the names of Subcontractors for each of the principal portions of the
Work. The Contractor shall not employ any Subcontractor to whom the Owner may
have a reasonable objection. The Contractor shall not be required to contract
with anyone to whom he has a reasonable objection. Contracts between the
Contractor and the Subcontractors shall (1) require each Subcontractor, to
the extent of the Work to be performed by the Subcontractor, to be bound to the
Contractor by the terms of the Contract Documents, and to assume toward the
Contractor all the obligations and responsibilities which the Contractor, by
these Documents, assumes toward the Owner and (2) allow to the
Subcontractor the benefit of all rights, remedies and


 

















 


ARTICLE 11

WORK BY OWNER OR BY SEPARATE CONTRACTORS


 


11.1     The Owner reserves the right
to perform work related to the Project with his own forces, and to award
separate contracts in connection with other portions of the Project or other
work on the site under these or similar Conditions of the Contract. If the
Contractor claims that delay or additional cost is involved because of such
action by the Owner, he shall make such claim as provided elsewhere in the
Contract Documents.


 


11.2     The Contractor shall afford
the Owner and separate contractors reasonable opportunity for the introduction
and storage of their materials and equipment and the execution of their work,
and shall connect and coordinate his Work with theirs as required by the
Contract Documents.


 


11.3     Any costs caused by
defective or ill-timed work shall be borne by the party responsible therefor.


 


ARTICLE 12

MISCELLANEOUS PROVISIONS


 


12.1     The Contract shall be
governed by the laws of the State of North Carolina.


 


ARTICLE 13

TIME


 


13.1     All time limits stated in
the Contract Documents are of the essence of the Contract. The Contractor shall
expedite the Work and achieve Substantial Completion within the Contract Time.


 


13.2     The Date of Substantial
Completion of the Work is the date when construction is sufficiently complete
so the Owner can occupy or utilize the Work for the use for which it is
intended.


 


13.3     If the Contractor is delayed
at any time in the progress of the Work by changes ordered in the Work, by
labor disputes, fire, unusual delay in transportation, adverse weather
conditions not reasonably anticipatable, unavoidable casualties, or any causes
beyond the Contractor’s control, then the Contract Time shall be extended by
Change Order for such reasonable time as the Owner may determine.


 

















 


ARTICLE 14

PAYMENTS AND COMPLETION


 


14.1     Payments shall be made as
provided in Article 4 and Article 5 of this Agreement.


 


14.2     Payments may be withheld on
account of (1) defective work not remedied. (2) claims filed, (3) failure
of the Contractor to make payments properly to Subcontractors or for labor,
materials, or equipment, (4) damage to the Owner or another contractor, (5) persistent
failure to carry out the Work in accordance with the Contract Documents.


 


14.3     Final payment Shall not be
due until the Contractor has delivered to the Owner a complete release of all
liens arising out of this Contract or receipts in full covering all labor,
materials, and equipment for which a lien could be filed, or a bond
satisfactory to the Owner indemnifying him against any lien. If any lien
remains unsatisfied after all payments are made, the Contractor shall refund
the Owner all moneys the latter may be compelled to pay in discharging such
lien, including all costs and reasonable attorney’s fees.


 


14.4     The making of final payment
shall constitute a waiver of all claims by the Owner except those arising from (1) unsettled
liens, (2) faulty or defective Work appearing after Substantial
Completion. (3) failure of the Work to comply with the requirements of the
Contract Documents, expressly including Contractor’s Warranty stated in
Paragraph 9.4 hereof, or (4) terms of any special warranties required by
the Contract Documents. The acceptance of final payment by Contractor shall
constitute a waiver of all claims against Owner by the Contractor except those
previously made in writing and identified by the Contractor as unsettled at the
time of the final Payment.


 

















 


ARTICLE 15

PROTECTION OF PERSONS AND PROPERTY


 


15.1     The Contractor shall be
responsible for initiating, maintaining, and supervising all safety precautions
and programs in connection with the Work. He shall take all reasonable
precautions for the safety of, and provide all reasonable protection to prevent
damage, injury or loss to (1) all employees on the Work and other persons
who may be affected thereby, (2) all the Work and all materials and
equipment to be incorporated therein, and (3) other property at the site
or adjacent thereto. He shall give all notices and comply with all applicable
laws, ordinances, rules, regulations and orders of any public authority bearing
on the safety of persons and property and their protection from damage, injury
or loss. The Contractor shall promptly remedy all damage or loss to any
property caused in whole or part by the Contractor, any Subcontractor, or
anyone directly or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable, except damage or loss attributable to the acts
or omissions of the Owner or anyone directly or indirectly employed by either
of them or by anyone for whose acts either of them may be liable, and not
attributable to the fault or negligence of the Contractor. The foregoing
obligations of the Contractor are in addition to. his obligations under
Paragraph 9.11.


 


ARTICLE 16

INSURANCE


 


16.1     Contractor’s liability
insurance shall be purchased and maintained by the Contractor to protect him
from claims under workers’ or workmen’s compensation acts and other employee
benefit acts, claims for damages because of bodily injury, including death, and
from claims for damages, other than to the Work itself, to property which may
arise out of or result from the Contractor’s operations under this Contract,
whether such operations be by himself or by any Subcontractor or anyone
directly or indirectly employed by any of them. This insurance shall be written
for not less than any limits of liability required by law. and shall include
contractual liability insurance applicable to the Contractor’s obligations
under Paragraph 9.11. Certificates of such insurance shall be filed with the
Owner prior to the management of the Work.


 

















 


16.2     The Owner shall be
responsible for purchasing and maintaining his own liability insurance and, at
his option, may maintain such insurance as will protect him against claims
which may arise from operations under the Contract.


 


16.3     The Owner and Contractor
waive all rights against each other for damages caused by fire or other perils
to the extent covered by insurance obtained pursuant to this Article or
any other property insurance applicable to the Work. The Contractor shall
require similar waivers in favor of the Owner and the Contractor by
Subcontractors and Sub-subcontractors.


 


ARTICLE 17

CHANGES IN THE WORK


 


17.1     The Owner, without
invalidating the Contract, may order Changes in the Work consisting of
additions, deletions, or modifications, the Contract Sum and the Contract Time
being adjusted accordingly. All such changes in the Work shall be authorized by
written Change Order signed by the Owner.


 


17.2     The Contract Sum and the Contract
Time may be changed only by the Change Order.


 


17.3     The cost or credit to the
Owner from a change in the Work shall be determined by mutual agreement.


 


ARTICLE 18

CORRECTION OF WORK


 


18.1     The Contractor shall
promptly correct any Work rejected by the Owner as defective or as failing to
conform to the Contract Documents whether observed before or after Substantial
Completion and whether or not fabricated, installed or completed, and shall
correct any Work found to be defective or nonconforming within a period of one (1) year
from the Date of Substantial Completion of the Contract or within such longer
period of time as may be prescribed by law or by the terms of any applicable
special warranty required by the Contract Documents.


 

















 


ARTICLE 19

TERMINATION OF THE CONTRACT


 


19.1     If the Owner fails to make
Payment for a period of thirty (30) days through no fault of the Contractor,
the Contractor may, upon seven additional days’ written notice to the Owner
terminate the Contract and recover from the Owner payment for all Work executed
and for any proven loss sustained upon any materials, equipment, tools, and
construction equipment and machinery, including reasonable profit and damages
applicable to the Project.


 


19.2     If the Contractor defaults
or persistently fails or neglects to carry out the Work in accordance with the
Contract Documents or fails to perform any provision of the Contract, the
Owner, after seven days’ written notice to the Contractor and without prejudice
to any other remedy he may have, may make good such deficiencies and may deduct
the cost thereof from the payment then or thereafter due the Contractor or, at
his option may terminate the Contract and take possession of the site and of
all materials, equipment tools, and construction equipments and machinery
thereon owned by the Contractor and may finish the Work by whatever method he
may deem expedient, and if the unpaid balance of the Contract Sum exceeds the
expense of finishing the Work, such excess shall be paid to the Contractor, but
if such expense exceeds such unpaid balance, the Contractor shall pay the
difference to the Owner.


 

















 


ARTICLE 20

OTHER CONDITIONS OR PROVISIONS


 


This agreement is entered
into as of the day and year first written above.


 


	
  OWNER:

  	
   

  	
  CONTRACTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mountain Health Services, Inc.

  
	
   

  	
   

  	
  General Contractor

  
	
   

  	
   

  	
  445 Biltmore Ave, Suite G-101

  
	
   

  	
   

  	
  Asheville, N.C. 28801

  



 


	
  BY:

  	
   

  	
  BY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Title:

  



 

















 


calculating the increase in
said index for the sixth month preceding the month in which any extension term
is to commence, over said index for the sixth month preceding the month of the
original Commencement Date. (If such Consumer Price Index shall be
discontinued, the parties hereto shall thereafter accept comparable statistics
on the cost of living by an agency of the United States Government or other
responsible financial reports, or, if  the
parties cannot agree upon a selection, one shall be chosen by arbitration.)”


 


I will recommend that we
waive personal signature guarantees.


 


Effective with the
commencement date of the lease for G-102 SJRCC agrees to an initial term of ten
(10) years for G-102, G-109 and G-108 for a total of 9,948 s.f. with an
option to renew for one (l) ten (10) year period.


 


The existing accelerator is
consuming more water and sewer than our average tenant. Therefore, effective
with the commencement date of G-102, SJRCC  shall
pay the cost of water and sewer that exceeds that of the average tenant. SJRCC
shall have the option of retrofitting the accelerator to recycle the water and
thus cut its expenses as it relates to these costs.


 


SJRCC agrees to the lease
rates for the “initial term” as follows:


 


G
–  102 (4,611 s.f.) $13.00 s.f. per annum plus cost pass through;


G
–  109 (4,747 s.f.) $11.00 s.f. per annum plus cost pass through until July 31,
1998 and $13.00 3.f. per annum plus cost pass through thereafter;


G
–  108 (590 s.f.) $11.00 s.f. per annum plus cost pass through until July 31,
1998 and $13.00 s.f. per annum plus cost pass through thereafter.


 


SJRCC agrees, at their
expense, to contract with a North Carolina licensed architect to provide
appropriate drawings for building permits.


 


Vault
Construction and Lease


 


The lease for this space
shall be an addendum to above mentioned lease for the SJRCC offices,
hereinafter referred to as “primary lease”. The principal ingredients of this
addendum shall be as follows:


 


SJRCC shall lease
approximately 1,150 s.f. of an addition that is to be made to the Biltmore
Center. (The actual s.f. to be determined upon completion of the architect
drawings.)


 


The lease shall commence
upon the issuance of a Certificate of Occupancy by the City of Asheville or
upon initial consumption


 

















 


of utilities, which ever
cornea sooner. After the commencement date the lease shall run concurrent with
the SJRCC primary lease and all renewals
thereof.


 


SJRCC shall pay property
taxes on the structure as a leasehold improvement.


 


SJRCC shall pay as rent to
the Biltmore Center, in accordance with the primary lease, $2.08 s.f. as a base
operating expense plus $1.39 s.f. for ground, parking deck and easement
expenses, plus, the then current cost pass through (currently $3.00 s.f). For
example, the lease rate, if commenced today, would be $6.47 s.f. per annum. The
“ground, parking deck and easement” rate is subject to change in accordance
with the provisions of those agreements from time to time.


 


Water, sewer and electricity
will be monitored in the future. In the event it is determined that SJRCC is
consuming more of these utilities than the average tenant SJRCC shall pay the
amount that exceeds that of the average tenant.


 


The Biltmore Center shall
own the structure.


 


SJRCC shall contract with a
North Carolina Licensed General Contractor to do the construction work on the
vault.


 


SJRCC shall provide MHS with
a copy of the contract with the Licensed General Contractor.


 


SJRCC shall contract with a
North Carolina Licensed Architect to provide the plans and specifications.


 


SJRCC shall pay for the
construction of the vault, same shall not be financed by the Biltmore Center or
MHS.


 


Upfitting
and project management


 


The upfitting and project
management shall be broken down into the primary lease for the SJRCC offices
and the lease addendum for the vault as follows:


 


Primary Lease:


 


SJRCC shall sign a standard
MES contract for the general contracting and project management. A copy of the
contract is attached. The cost to SJRCC for these services shall be the actual
sub-contract work and materials plus 10%, excluding architect fees. The
principal services under this contract are: to analyze the sub-contractor bids
and provide you with a recommendation for your approval; review and approve
invoices for the project and recommend payment of same to you; and, make sure
the job is completed on schedule. It is our understanding that the current scope
of the project upfitting is not to exceed $ 30,000.


 














 


I will recommend that the
Biltmore Center pay 50% of the project upfitting, not to exceed $15,000.


 


Addendum:


 


The vault construction has
now become an integral part of the construction schedule for completion of the
Regional Oncology Associates (ROA) project
and the foundation of the Biltmore Center addition. The burden for project
management has been placed on MHS for all of these projects.


 


The Biltmore Center is
responsible for the construction of the shell and foundation and SJRCC is
responsible for the vault. Therefore, I will recommend that SJRCC pay 5%
of the 10% MHS General Contractor fee based on the construction cost of the
vault excluding the architect and engineering cost. To implement this SJRCC
shall sign a contract with MHS to pay 5% of the contractor, sub-contractor and
materials fees associated with the construction of the vault.


 


My preference would be that
we are in agreement on these matters before the presentation is made to the
Finance Committee so that we don’t leave them with the problem of resolving any
differences of opinion that we may have. Therefore, the signatures of
Dr. Coli and Dr. Thomas on one of these duplicate originals, prior to
September 16, will accomplish this purpose.


 


I concur in this offer.


 


	
  /s/ G. John Coli

  	
   

  	
   

  	
  10/14/96

  
	
  G. John Coli, Ph. D.

  	
   

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Charles C. Thomas

  	
   

  	
   

  	
  9/16/96

  
	
  Charles C.
  Thomas, III, M.D.

  	
   

  	
   

  	
  Date

  



 

















 


Exhibit V


 


Ethical and Religious Directives for Catholic Health Care Services


 


National Conference of Catholic Bishops


 

















 


ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


THIS ASSIGNMENT AND
ASSUMPTION AGREEMENT (“Agreement”) is made, entered into and effective as of
the 11 day of January, 2002, by and between Regional Cancer Center (the “Seller”),
on the one hand, and Radiation Therapy Associates of Western North Carolina,
P.A. (the “Buyer”), on the other hand.


 


RECITALS


 


A.       Pursuant to that certain Asset Purchase
Agreement (the “Purchase Agreement”) of even date herewith, between the Seller,
Regional Radiation Oncology, P.A., Haywood Associates Limited Partnership,
Macon Associates, LLC, McDowell Medical Equipment, LLC, Rutherford Medical
Equipment, LLC and Transylvania Associates Limited Partnership, on the one
hand, and the Buyer, Radiation Therapy Services, Inc., a Florida
corporation, and North Carolina Radiation Therapy Management Services, Inc.,
a North Carolina corporation, on the other hand, the Buyer is acquiring certain
assets and assuming certain liabilities of the Seller. All capitalized terms
not otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.


 


B.        In connection with the transactions
contemplated by the Purchase Agreement, the Seller wishes to assign to the
Buyer Seller’s rights, duties and obligations under the agreements and
contracts to which the Seller is a party and which are described on Exhibit A
attached hereto (the “Assumed Contracts”), and under the leases to which the
Seller is a party and which are described on Exhibit B attached
hereto (the “Assumed Leases”), and, to the extent assignment is permitted
pursuant to applicable law, under the licenses, permits and no review letters
described on Exhibit C attached hereto (the “Assumed Licenses and
Permits”), and the Buyer wishes to take such assignment and assume from the
Seller the Assumed Contracts, the Assumed Leases and the Assumed Licenses and
Permits.


 


AGREEMENTS


 


NOW, THEREFORE, in
consideration of the mutual agreements, covenants and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Seller and the Buyer hereby agree as
follows:


 


1.        The Seller does hereby convey, sell,
transfer, assign and deliver unto the Buyer all of Seller’s rights, title,
interests, duties and obligations in, to and under the Assumed Contracts, the
Assumed Leases and, to the extent such assignment is permitted pursuant to
applicable law, the Assumed Licenses and Permits, and the Buyer does hereby
assume and agree to perform and discharge all of the terms, covenants,
conditions and obligations of the Seller under the Assumed Contracts, the
Assumed Leases and the Assumed Licenses and Permits as they relate to periods
from and after the date hereof. The parties agree to execute and deliver such
further instruments and documents, and to take such further actions, as shall
be reasonably necessary to accomplish or confirm the transactions contemplated
hereby.


 


2.        This Agreement may not be amended or
terminated except by a written instrument duly signed by each of the parties
hereto and shall bind and inure to the benefit of, and be enforceable by and
against, the parties hereto and their respective successors and assigns.


 


3.        The provisions of this Agreement are
subject, in all respects, to the terms and conditions of the Purchase
Agreement, the terms of which are incorporated herein by reference.


 

















 


4.        This Agreement shall be governed by and
construed according to the laws of the State of North Carolina (excluding
therefrom any provisions that would result in the application of the laws of
another jurisdiction).


 


5.        This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.


 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed by their duly authorized
officers and representatives, under seal (limited partnerships and limited
liability companies adopting the word “SEAL” as their respective seals), with
the intent that it have the effect of a sealed instrument under the laws of the
State of North Carolina.


 


	
   

  	
   

  	
   

  	
  SELLER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  REGIONAL CANCER CENTER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Charles C. Thomas

  	
  (SEAL)

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Charles C. Thomas, II

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BUYER:

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  RADIATION THERAPY
  ASSOCIATES OF WESTERN NORTH CAROLINA, P.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Authorized Signatory

  	
  (SEAL)

  
	
  (Asst.) Secretary

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  [Corporate Seal]

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 

















 


Exhibit A

Assumed Contracts


 


(See
attached)


 

















 


Exhibit A


 


Assumed
Contracts


 


1.                          Agreement dated
March 16, 2000 between Mission Saint Joseph’s Health System, Inc. and
Regional Cancer Center.


 


Regional
Cancer Center

Radiation Therapy Associates of WNC, P.A.


 

















 


Exhibit B

Assumed Leases


 


(See
attached)


 

















 


Exhibit B


 


Assumed
Leases


 


1.                          Lease b/w 445
Biltmore Center and St. Joe’s Regional Cancer Center (SJRCC) (10/4/96)


 

















 


Exhibit C

Assumed Licensed and Permits


 


(See
attached)


 














 


PERSONAL
& CONFIDENTIAL


 


LEASE


 


BETWEEN


 


445
BILTMORE CENTER


 


AND


 


ST.
JOSEPH’S REGIONAL CANCER CENTER


 

















 


LEASE


 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Premises

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Acceptance of Premises

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Term

  	
  1

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Commencement Date

  	
  2

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions of the Premises

  	
  3

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Rent

  	
  3

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Improvements

  	
  7

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Lessor’s Obligations

  	
  8

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Repairs

  	
  9

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Loss or Damage and
  Insurance

  	
  9

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Use of Premises

  	
  10

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Enjoyment of Premises

  	
  10

  
	
   

  	
   

  	
   

  
	
  13.

  	
  SubLease or Assignment

  	
  11

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Removal of Personal
  Property

  	
  11

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Personal Property Risk

  	
  12

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Lessee’s Obligation to
  Occupy and Lessor’s Consent to Vacate

  	
  12

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Default

  	
  13

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Governmental Requirements

  	
  16

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Condemnation

  	
  16

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Fire or Casualty

  	
  16

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Inspection

  	
  17

  
	
   

  	
   

  	
   

  
	
  22.

  	
  Subordination to Mortgages

  	
  18

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Signs and Hallways

  	
  18

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Notices

  	
  19

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Rules and Regulations

  	
  19

  
	
   

  	
   

  	
   

  
	
  26.

  	
  Staff Privileges and
  Compliance with Directives

  	
  19

  
	
   

  	
   

  	
   

  
	
  27.

  	
  Rights and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  Parties

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  Approval

  	
   

  
	
   

  	
   

  	
   

  
	
  31.

  	
  Memorandum of Lease

  	
   

  
	
   

  	
   

  	
   

  
	
  32.

  	
  Controlling Law

  	
   

  
	
   

  	
   

  	
   

  
	
  33.

  	
  Notice to Lessor

  	
   

  
	
   

  	
   

  	
   

  
	
  34.

  	
  Waiver of Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  35.

  	
  No Broker

  	
   

  
	
   

  	
   

  	
   

  
	
  36.

  	
  Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  37.

  	
  Easements, Restrictions,
  and Right-of-Way

  	
   

  
	
   

  	
   

  	
   

  
	
  38.

  	
  Stamp Tax or Sales Tax on
  Lease

  	
  23

  
	
   

  	
   

  	
   

  
	
  39.

  	
  Lessor’s Liability

  	
  23

  
	
   

  	
   

  	
   

  
	
  40.

  	
  Lessor’s Performance of
  Lessee’s Covenants

  	
  23

  
	
   

  	
   

  	
   

  
	
  41.

  	
  Lessee’s Taxes

  	
  24

  
	
   

  	
   

  	
   

  
	
  42.

  	
  Entire Agreement

  	
  24

  
	
   

  	
   

  	
   

  
	
  43.

  	
  Electricity

  	
  24

  
	
   

  	
   

  	
   

  
	
  44.

  	
  Limitation of Use

  	
  24

  
	
   

  	
   

  	
   

  
	
  45.

  	
  Quiet Use of Premises

  	
  25

  
	
   

  	
   

  	
   

  
	
  46.

  	
  Holding Over by Lessee

  	
  25

  
	
   

  	
   

  	
   

  
	
  47.

  	
  Ethical Practices

  	
  25

  



 

















 


	
  STATE OF NORTH CAROLINA

  	
   

  
	
   

  	
  LEASE
  AGREEMENT

  
	
  COUNTY OF BUNCOMBE

  	
   

  



 


THIS LEASE, made and entered
into this 4TH DAY OF OCTOBER, 1996, by and between 445 Biltmore Center, a North
Carolina Limited Partnership (hereinafter called the “Lessor”), and ST. JOSEPH’S
REGIONAL CANCER CENTER, a North Carolina General Partnership, (hereinafter
called “Lessee”);


 


W
I T N E S S E T H;


 


1.        Premises. The Lessor hereby
Leases unto the Lessee, and the Lessee hereby Leases from the Lessor, upon
terms and conditions hereinafter set forth, 10,850 square feet (comprised of
the following Suites - G-102 4,611 s.f.; G-109 4,747 s.f.; G-108 590 s.f.; and,
G-102 extension 902 s.f.) of the Ground floor of the 445 Biltmore Center
professional office Building (hereinafter called the “Building”), located at
Biltmore Avenue, Asheville, North Carolina. The Leased space is shown on Exhibit VI
attached hereto and made a part hereof and is called the “Premises”.


 


2.        Acceptance of Premises. Lessor
has made no representation of promises with respect to the Building, Premises,
or this agreement except as set forth herein and Lessee’s entry to the Premises
shall constitute acceptance thereof.


 


3.        Term. Lessor and Lessee shall be
bound hereunder upon the execution hereof and the term hereof shall continue in
force for a period of ten (10) years after the Commencement Date, as


 

















 


hereinafter defined.


 


The Lessee shall have the
option to extend the term of this Lease for one (1) separate and
successive ten (10) year period by giving written notice of the renewal at
least six (6) months prior to the expiration of the then current Lease
term. The Lessor shall have the right any time prior to 30 days from the
commencement thereof to increase the “Base Rental” as specified in Section 6(a) hereof
to reflect a fair market rental rate for the building. In no event shall the
said increase be greater than the increase in the cost of living index for “all
items” as established by the Consumer
Price Index (Urban Consumer - 1982 = 100) published by the United States Bureau
of Labor Statistics computed by calculating the increase in said index for the
sixth month preceding the month in which any extension term is to commence,
over said index for the sixth month preceding the month of the original
Commencement Date. (If such Consumer Price Index shall be discontinued, the
parties hereto shall thereafter accept comparable statistics on the cost of
living by an agency of the United States Government or other responsible
financial reports, or, if the parties cannot agree upon a selection, one shall
be chosen by arbitration.)


 


4.        Commencement Date. The
Commencement Dates shall be as follows:


 


Suites G-102, 4,611 s.f.,G-108,
590 s.f., G-109, 4,747 s.f., will commence as soon as the Lessor
commences the lease with Regional Oncology Associates for the First Floor of
the


 


2

















 


Biltmore Center. The rent
will commence according to this Lease except for the that portion of Suite G-102
that requires upfitting, to be agreed upon by the parties, the rent for this
area will be due the earlier of the agreed upon construction time or the
issuance of the City of Asheville Certificate of Occupancy.


 


Suite G-102 Extension, 902 s.f.,
shall commence upon the issuance of a Certificate of Occupancy by the City of
Asheville or upon initial consumption of utilities, which ever occurs sooner.


 


5.        Conditions of the Premises. The
Lessee shall at all times keep the Premises and all adjoining areas and utility
installations in a neat, orderly condition and in good order, replacement,
maintenance (including painting as needed, light bulbs, and replacement of
broken glass) and repair, except the portions thereof to be repaired by the Lessor
as provided herein. Lessee shall perform all such obligations in a workmanlike
manner and allow no liens to attach. Upon the expiration or other termination
of the Lease, Lessee shall quit and surrender the Premises to the Lessor in the
same condition as at the commencement of the original term, natural wear and
tear only expected. Lessee shall deliver all keys to the Premises to Lessor at
the expiration or other termination thereof.


 


6.        Rent. The Lessee shall pay the
Lessor without demand or offset at the Lessor’s office or at such other place
as the Lessor may from time to time designate in writing, Base Rental and


 


3

















 


Additional Rental during the
Lease term as follows:


 


A.     Base Rental. Effective as of the Commencement Date and
continuing for the full term of this Lease, Lessee shall pay the following:


 


Suite G-102 4,611 s.f., Fifty-Nine
Thousand Nine Hundred and Forty-Three and 0/100 ($59,943.00) Dollars per annum
payable in the amount of Four Thousand Nine Hundred Ninety-Five and 25/100
($4,995.25) Dollars per month.


 


Suite G-109 4,747 s.f., Fifty-Two
Thousand Two Hundred Seventeen and 0/100 ($52,217.00) Dollars per annum payable
in the amount of Four Thousand Three Hundred Fifty-One and 41/100 ($4,351.41)
Dollars per month through July 31, 1998. Commencing August 1, 1998
the base rent shall be Sixty-One Thousand Seven Hundred Eleven and 0/100
($61,711.00) Dollars per annum payable in the amount of Five Thousand One
Hundred Forty-Two and 58/100 ($5,142.58) Dollars per month through the
remainder of the initial ten (10) year term.


 


G-108, 590 s.f., Seven
Thousand Three Hundred and Seventy-Five Dollars ($7,375.00) per annum payable
in the amount of Six Hundred Fourteen and 58/100 ($614.58) per month through July 31,
1998.


 


Commencing August 1,
1998 the base rent shall be Seven Thousand Six Hundred Seventy and 0/100
($7,670.00) Dollars per annum payable in the amount of Six Hundred Thirty-Nine
and 16/100 ($639.16) per month through the remainder of the


 


4

















 


initial ten (10) year
term.


 


G-102 Extension, 902 s.f., Three
Thousand One Hundred Twenty-Nine and 94/100($3,129.94) per annum payable in the
amount of Two Hundred Sixty and 82/100 per month through the term of the
initial lease or until such time as the Land Lease and Easement is increased.


 


Base Rentals shall be paid
by Lessee to Lessor in advance of the first day of each month. All rentals due
for the period prior to the Commencement Date shall be paid in advance.


 


B.        Additional Rental. Lessee shall
pay to Lessor as additional rental (“Additional Rental” sometimes referred to
as “Cost Pass Through” (“CPT” in every day language) Lessee’s share (as
hereinafter defined) of the increase each year in Operating Expense (as
hereinafter defined) over the Base Operating Expense (as hereinafter defined). “Lessee’s
share shall equal that portion of such increase that the square footage of the
Premises bears to all space available for lease in the Building. The term “Operating
Expense” shall include all Lessor’s costs of operation, replacement and
maintenance of the Building for each year including, but not limited to, all ad
valorem taxes, premiums for insurance, management costs, utility charges.
Building and parking lot security expense, parking lot maintenance expenses,
janitorial and maintenance expenses, but shall not include the cost of capital
improvements (such definition shall in no way increase Lessor’s obligations
hereunder). The term “Base Operating Expense” shall


 


5

















 


mean the sum of $3.00 per
square foot per calendar year. As soon as practical after December 31 of
each calendar year, the Lessor shall deliver to the Lessee (i) a statement
of Operating Expenses for the fiscal year just ended, (ii) a computation
of Lessee’s share of such Operating Expenses, and (iii) a statement of
Additional Rentals, if any, payable by Lessee, hereinafter called the “Notice
of Payment of Additional Rentals”. Lessee shall pay such Additional Rentals
within ten (10) days after receipt of Notice of Payment of Additional
Rentals. At Lessor’s option, Lessor may estimate the Additional Rentals and
bill the Lessee monthly in advance for such Additional Rentals; and Lessee
shall pay the same to Lessor in advance, at the same time and together with the
monthly Base Rentals. If such monthly billing is elected by Lessor, and Lessee’s
share of the Operating Expenses for the applicable calendar year exceeds the
Additional Rentals paid by Lessee for such calendar year, Lessee shall pay such
excess within ten (10) days after receipt of Notice of Payment of
Additional Rentals. If Lessee’s Share of the Operating Expenses for the
applicable calendar year is less than the Additional Rentals paid by Lessee for
such calendar year, Lessor shall immediately credit and reduce Lessee’s current
Additional Rental payments accordingly. All Additional Rentals for the calendar
year in which the lease term terminates shall be due and payable upon receipt
of Notice of Payment of Additional Rentals even if such Notice is received
after the lease termination date. With respect to the Additional Rentals,
within sixty (60) days from the end of each calendar year,


 


6

















 


Lessee upon reasonable
notice to Lessor, may have access to Lessor’s records to verify, at Lessee’s
expense, the Operating Expenses for the applicable calendar year.


 


The base operating expense
for the 902 square foot vault (G-102 Extension) shall be $ 3.47 less ad valorem
taxes per square foot per annum. Ad valorem taxes shall be paid directly by the
Lessee.


 


7.        Improvements and Alterations. The
Lessee shall have no right to make improvements or alterations on the Premises,
except in conformity with the following conditions:


 


A.     No improvements or alterations shall at any time be made which
shall effect the structure, impair the structural soundness or diminish the
value to the Building.


 


B.     No improvements or alterations shall be made at any time without
first obtaining the Lessor’s written approval of the plans and specifications
therefor, but such approval shall not be unreasonably withheld by the Lessor.
The Lessee shall furthermore first obtain the Lessor’s written approval before
any modification or changes are made in such plans and specifications after
Lessor’s approval thereof.


 


C.     No improvements or alterations shall be undertaken until Lessee
shall have procured and paid for all required municipal and other governmental
permits and authorizations of the various municipal departments and government
subdivisions having jurisdiction.


 


7














 


D.     All work done in connection with any improvements or alterations
shall be done by a properly licensed contractor who has been approved by the
Lessor. All work shall be performed in a good and workmanship manner and in
compliance with all Building and zoning laws, and with all other laws,
ordinances, rules, regulations and requirements of any federal, state or
municipal government or agency having jurisdiction and shall be promptly paid
for and completed free of all mechanic’s or materialmen’s liens. No work shall
be commenced until Lessee shall have delivered lien waivers to Lessor signed by
all contractors of Lessee.


 


E.      Any improvement or alteration to the Premises, except movable
furniture, trade fixtures and medical equipment, shall at once become the
absolute property (except Lessee shall list Leasehold improvements for ad
valorem taxes) of the Lessor and remain upon and be surrendered with the
Premises as a part thereof at the termination of the Lease without disturbance
or injury.


 


The exception to this
section shall be that contained in Exhibit IV Paragraph 2.


 


8.        Lessor’s Obligations. The Lessor
shall furnish, to the extent it is able, a reasonable amount of electric power,
janitorial service, water and heat and air conditioning sufficient in the Lessor’s
judgment, to keep the Premises comfortable for use and occupancy. The Lessor
shall not be liable for failure to furnish or delay in furnishing elevator
services, electric power, heat, air conditioning, water or janitorial service,
when such failure is caused by the need for repairs, a strike or labor


 


8

















 


controversy, a riot, the
inability to secure fuel for the Building, any accident or casualty,
unauthorized act or default by janitors, other tenants or employees of Lessor,
or any cause beyond the reasonable control of the Lessor. No failure shall
constitute eviction or constructive eviction.


 


9.        Repairs. The Lessor shall have no
duty to the Lessee to make any repairs or improvements to the Building except
structural repairs necessary for safety and tenantability providing Lessee
promptly notifies Lessor of the need therefor. The Lessor shall not be required
to make, and Lessee shall make any such repairs made necessary by the act or
neglect of the Lessee, its agents, employees or visitors.


 


10.      Loss or Damage and Insurance. The
Lessor shall not be liable for any damage to persons or property in the
Premises or in or about the Building, whether caused by Acts of God, gas smoke,
steam, electricity, wind, ice, rain, snow, water or otherwise. Lessor shall not
be liable for any damage to persons or property sustained by Lessee or others
howsoever arising whether due to the Premises or any part thereof being out of
repair, or due to the happening of any accident in or about the Building, or
due to any negligence of any tenant or occupant of the Building or any other
person or otherwise. The Lessee shall indemnify the Lessor and hold it harmless
from any and all claims, liability and loss, including attorneys fees and
costs, for personal injuries or property damage sustained or claimed to have
been sustained by any person or property in, upon or about the Premises whether
arising


 


9

















 


from the Lessee’s conduct of
business on the Premises, the negligence, misconduct or breach of any provision
of this Lease by the Lessee, his agents, servants or employees, or any other
person entering upon Leased Premises under express or implied invitation of the
Lessee or otherwise. Lessee shall pay for and keep in force a liability
insurance policy with a minimum $500,000 single limit in companies satisfactory
to Lessor covering Lessee’s business operations on the Premises, naming Lessor
as an additional insured thereunder and with a duplicate original thereof to be
delivered to Lessor. In addition Lessee shall pay for and keep in force fire
insurance with extended coverage insuring to their full insurable value all of
Lessee’s personal property, fixtures and equipment, and copies of such
insurance shall be delivered to Lessor.


 


11.      Use of Premises. The Premises shall
be used and occupied by the Lessee solely for the purpose of a medical office.
The Lessee shall not use the premises in any manner which will increase the
premium rate for any kind of insurance affecting the Building in which the
Premises are located, and if, because of anything done or caused to be done,
permitted or omitted by the Lessee, the premium rate for any kind of insurance
affecting such Building shall be raised, then, in such event, the amount of the
increase in premium which the Lessor shall be thereby obligated to pay for
insurance shall be paid by the Lessee to the Lessor on demand as additional
rental.


 


12.      Enjoyment of Premises. The Lessee,
on paying the rental and keeping and performing the agreements and covenants
herein


 


10

















 


contained, shall be
undisturbed by Lessor subject, however, to the terms of this Lease.


 


13.      SubLease or Assignment. The Lessee
shall not, without the written consent of the Lessor, assign this Lease or
sublet the Premises or any part hereof. Should Lessor’s permission therefore be
given, any rent or other amounts received by Lessee as a Sublessor or Assignor
in excess of the amounts due to Lessor shall be the property of the Lessor and
shall be promptly delivered to Lessor as additional rental. It is expressly
understood and agreed by Lessee that Lessee’s reputation constitutes
substantial consideration for Lessor’s entering herein. Lessor’s consent
hereunder may be withheld in its sole discretion.


 


14.      Removal of Personal Property. So
long as Lessee is not then in default, the Lessee may, at the termination
hereof, remove all personal property and movable trade fixtures which Lessee
has placed in the Premises, provided Lessee repairs all damages to the Premises
caused by such removal and the Premises are placed in the condition as existed
at the Commencement Date. If the Lessee shall fail to remove all such property
from the Premises upon the termination of this Lease for any cause whatsoever,
the Lessor may, at its option, remove the same in any manner that the Lessor
may choose and store it at Lessee’s expense without liability to the Lessee for
loss thereof. In such event, the Lessee shall pay to Lessor on demand any and
all expenses incurred in such removal, including court costs, attorney’s fees,
and storage charges for the length of time the same shall be in the Lessor’s
actual or


 


11

















 


constructive possession. Alternatively, the Lessor may, at its
option deem the property abandoned and immediately become the owner thereof or,
without notice, and without legal process, sell the property or any part
thereof at a public or private sale for such price as the Lessor may obtain,
and apply the proceeds of the sale first to the expenses incident to removal
and sale of said property and then to any amounts due under this Lease. Should
notice of sale be required by laws, then three (3) days notice shall be
deemed commercially reasonable and sufficient. If the Lessee is in default, the
Lessor shall have a lien on said personal property and movable trade fixtures
as security for all sums due from the Lessee to the Lessor and shall have the
right to sell said property as above provided unless there is then a legally
enforceable lien on the same superior to the rights of the Lessor in said
property.


 


15.      Personal Property Risk. All
personal property brought into the Premises by the Lessee shall be at the risk
of the Lessee only, and Lessor shall not be liable for theft thereof or any
damage thereto howsoever occasioned whether by an act of tenants, other
occupants of the Building, any other person or otherwise.


 


16.      Lessee’s Obligation to Occupy and
Lessor’s Consent to Vacate. The Lessee shall occupy the Premises upon the
Commencement Date of this Lease as stated in the Section 4 hereof. The
Lessee shall not abandon or vacate the Premises during the term of the Lease
without the prior consent of the Lessor.


 


12

















 


17.      Default


 


A.     Any one and all of the following events shall constitute an
Event or Default.


 


i.           If Lessee files a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act or voluntarily takes advantage of
any such act or makes an assignment for the benefit of creditors;


 


ii.          If involuntary proceedings under any bankruptcy law,
insolvency or receivership action shall be instituted against Lessee or if a
receiver or trustee shall be appointed for all or substantially all of the
property of Lessee, and such proceedings are not dismissed, or the receivership
or trusteeship vacated, within ten (10) days after the institution or
appointment;


 


iii.         If Lessee fails to pay rentals to the Lessor or fails to pay
any other charges when due, and does not make the payment within five (5) days
after written notice thereof. For the purposes hereof, such other charges shall
constitute additional rentals;


 


iv.         If Lessee fails to fully perform and comply with all
conditions of Lease Agreement and such failure of performance continues for a
period of ten (10) days after notice thereof;


 


v.          If Lessee vacates or abandons the Premises;


 


vi.         If the interest of Lessee is transferred or assigned to any
other person, firm or corporation except as herein permitted;


 


13

















 


vii.        If Lessor, in any three (3) months of any Lease Year,
give any notice to Lessee pursuant to subsection iii and iv
above, notwithstanding Lessee’s cure of default within the allowable period or
periods.


 


viii.       If Lessee loses their license to practice or is otherwise
unable to practice full time for a period exceeding 90 days in one calendar
year.


 


B.     Upon the occurrence of any Event of Default as set forth above,
Lessor shall have at its option any one or more the following rights:


 


i.           To cancel and terminate the Lease Agreement and all
interests of the Lessee hereunder by giving notice of such cancellation and
termination not less than ten (10) days prior to the effective date of
such termination. Upon the expiration of said ten (10) day period, the Lessee
shall have no further rights under this Lease Agreement; and/or


 


ii.          To make any payment required of Lessee herein or correct
any condition required to be corrected by Lessee, and Lessor shall have the
right to enter the Premises for the purpose of correcting any such condition
and to remain on the Premises until the complete correction of such condition.
However, no expenditure by Lessor on behalf of Lessee shall be deemed to waive
or release Lessee’s breach hereof and Lessor shall retain all rights to proceed
against Lessee as set forth herein; and/or


 


iii.         To reenter the Premises immediately with or without Order of
Court and without being guilty of trespass, remove


 


14

















 


the property and personnel
of Lessee and store such property in a public warehouse or such other location
selected by Lessor, all at the expense of Lessee. After such reentry, Lessor
shall have the right to terminate this Lease Agreement by giving ten (10) days
notice of termination to Lessee, but without such notice, the reentry by Lessor
shall not terminate this Lease Agreement. On termination, Lessor may recover
from Lessee all damages resulting from Lessee’s breach, including the cost of
recovery of the Premises and placing them in satisfactory condition, the value
of the balance of this Lease over the reasonable rental value of the Premises
for the remainder of the Term, all of which sums shall be immediately payable
to Lessor from Lessee; and/or


 


iv.         To relet the Premises or any part thereof for any term, with
or without terminating the Lease, and at such rentals and on such other terms
as Lessor may select including the right to grant free rental, and to alter and
repair the Premises as Lessor deems necessary. Should Lessor relet the
Premises, Lessee shall pay all expense of reletting including brokers’ or
finders’ fees and such reasonable attorneys’ fees as Lessor may incur. Lessor
shall apply the rent received from reletting in the following order: (1) To
expenses of reletting; (2) To Lessee’s indebtedness to Lessor other than
for rentals; and (3) To rentals due to the future; and/or


 


v.          To accelerate the rentals with or without entry; and/or


 


15

















 


vi.     To collect reasonable attorney fees actually incurred and not
exceeding fifteen (15%) percent of the amounts due from the Lessee to the
Lessor hereunder, together with court costs incurred in enforcing the rights of
the Lessor hereunder; and/or


 


vii.    All other rights and remedies provided by law for a Lessor with a
defaulting Lessee including all such money damages as Lessor shall be entitled
to pursuant to the law of damages.


 


18.      Governmental Requirements. The
Lessee shall, at its own expense, promptly comply with all rules, regulations,
statutes, ordinances, and requirements of any legally constituted public
authority in connection with Lessee’s occupancy of the Premises.


 


19.      Condemnation. If the whole or any
part of the Premises shall be taken by any public authority under the power of
eminent domain, then this Lease shall terminate as to the part taken on the
date possession of that part is surrendered (or as of the date of Judgment of
Order, if earlier) and any unearned rent paid or credited in advance shall be
refunded. The Lessee shall not be entitled to receive any part of any award or
awards arising out of such condemnation whether for the value of this
Leasehold, Leasehold improvements or otherwise. The Lessee may at its own
expense commence independent proceedings against the public authority
exercising the power of eminent domain to prove and establish any other damage
Lessee may have incurred.


 


20.      Fire or Casualty. If the Premises
shall be partially or completely damaged or destroyed by fire or other
casualty, Lessor


 


16

















 


shall have the right to
terminate this Lease Agreement. If said option to terminate is not exercised by
Lessor, Lessor shall, as soon as reasonably possible, effect the required
repairs and reconstruction of the Premises and during such time as said repairs
or reconstruction are being made, the rentals hereinabove provided shall be
abated from the date Lessee makes the Premises available to Lessor to effect
such repairs and construction, but only to the extent and in the proportion
that the Premises are untenantable for the normal use thereof by Lessee. Any
other provisions contained herein notwithstanding, the Lessor shall be required
and obligated to effect repairs and reconstruction only to the extent of any
sums of money, if any, which are received by Lessor under Lessor’s insurance
coverage as a direct result of said fire or other casualty.


 


21.      Inspection. The Lessor shall have
the right to enter and grant licenses to others to enter the Premises at any
time during all reasonable hours to examine the same or to make such repairs,
additions or alterations as may be deemed necessary for the safety, comfort or
preservation thereof, or of the Building and to exhibit the Premises to
prospective tenants, mortgagees or purchasers and for the purpose of removing’
placards, signs, fixtures, alterations or additions which do not conform to the
terms of this Lease or to the rules and regulations of the Building. No
such entry shall constitute actual or constructive eviction.


 


17














 


22.      Subordination to Mortgages. This
Lease Agreement and Che rights of Lessee are subordinate to and shall be
subordinate to the lien of any first mortgage or deed of trust (hereinafter
called “Mortgage”) whether such Mortgage is currently a lien on the Premises or
hereafter becomes a lien on the Premises and no further agreements or documents
shall be required to render this Lease the Lessee’s rights subordinate to such
Mortgage. At Lessee’s request and at Lessee’s expense, Lessor shall endeavor to
obtain for Lessee a non-disturbance agreement in recordable form providing in
substance that Lessee’s tenancy shall not be disturbed nor affected by any
default under the Mortgage provided that Lessee is not in default under any of
the terms, conditions and covenants hereof. Lessee shall at all times upon
request of Lessor promptly furnish documents stating that this Lease is in full
force and effect, that no defaults of the Lessor exist, and such other matters
as are customarily contained in what is known as an “estoppel letter” or a “good-standing
letter”. Should Lessee fail to deliver such documents within ten (10) days
of Lessor’s request thereof, Lessor shall be deemed Lessee’s attorney-in-fact
for the purpose of executing such documents in the name of Lessee unless Lessee
has within such period provided written notice to Lessor or Lessee’s claim of
Lessor’s default.


 


23.      Signs and Hallways. The Lessee
shall not paint or place signs or other advertising material upon the Premises
except with the consent of the Lessor. Lessee shall place no benches, chairs,
or other items on the hallways or other areas of the Building or


 


18

















 


Premises.


 


24.      Notices. Any notice required or
allowed by this Lease to be given to either the Lessor or the Lessee must be in
writing and shall only be deemed delivered upon deposit in the United States
Mail sent via “Certified” or “Registered” mail, postage prepaid and properly
addressed to the parties as follows:


 


	
  Lessee:

  	
  Mrs. Charlene R.
  Thomas, MHA

  
	
   

  	
  Administrator

  
	
   

  	
  St. Joseph’s Regional
  Cancer Center

  
	
   

  	
  445 Biltmore Center,
  Suite G-102

  
	
   

  	
  Asheville, N. C. 28801

  
	
   

  	
   

  
	
  Lessor:

  	
  Ken M. Michalove,
  Executive Vice President

  
	
   

  	
  Mountain Health
  Services, Inc.

  
	
   

  	
  Managing General Partner -
  445 Biltmore

  
	
   

  	
  Center Limited Partnership

  
	
   

  	
  445 Biltmore Center

  
	
   

  	
  445 Biltmore Avenue,
  Suite G-101

  
	
   

  	
  Asheville, N. C. 28801

  



 


25.      Rules and Regulations. The
Lessor has made, and from time to time shall make, rules and regulations
for the government of the Premises. These rules and regulations whether
now in existence or hereafter made, are, and shall be, part of this Lease and
binding upon the Lessee to the same extent as if set out herein and copies
thereof shall be delivered to the Lessee.


 


26.      Staff Privileges and Compliance with
Directives. Lessee acknowledges that he or, if Lessee is a professional
association, the shareholders of Lessee, of if Lessee is a partnership, the
partners of Lessee, have staff privileges in good standing at the St. Joseph’s
Hospital and further covenants to retain the same during the term of this
Lease. Lessee covenants and agrees to abide by the Ethical and Religious
Directives for Catholic Health


 


19

















 


easement, restriction or
rights-of-way shall prohibit the use of the Premises as intended pursuant to Section 11
above.


 


38.      Stamp Tax or Sales Tax on Lease.
Should any governmental or quasi-governmental authority having jurisdiction
over the Premises declare or otherwise assess any tax on Leases or Leaseholds
whether designated as a stamp tax, sales tax or otherwise, then in any of such
events, all taxes declared or charged shall be the obligation of the Lessee and
shall be paid by Lessee to such authority or shall be paid to Lessor in reimbursement
and as additional rental.


 


39.      Lessor’s Liability. Notwithstanding
anything to the contrary contained herein, in the event of any breach hereof by
Lessor or failure of Lessor to perform any of its obligations hereunder, Lessor
shall have no personal liability for such matters but Lessee shall look solely
to Lessor’s interest in the Premises for satisfaction. Lessor shall upon any
sale of its interest in the Premises be relieved of further performance
hereunder. Lessee by execution hereof attorns to any such subsequent purchaser.


 


40.      Lessor’s Performance of Lessee’s
Covenants. Should Lessee, after seven (7) days’ notice from the
Lessor, fail to do any of the things required to be done by it under the
provisions of this Lease, Lessor, in addition to any and all other rights and
remedies, may (but shall not be required to) do the same or cause the same to
be done, and the reasonable amount of any money expended by Lessor in
connection therewith shall constitute additional rental due from Lessee to Lessor
and shall be payable as


 


23

















 


rental on the date for
payment of rentals immediately following such expenditure. In addition to the
foregoing, Lessee shall pay as further additional rental twenty percent (20%)
of the amount due Lessor under this Section 40 as a service and overhead
fee.


 


41.      Lessee’s Taxes. Lessee shall
promptly list for taxes and pay the taxes on all personal property placed by
Lessee on the Premises prior to the delinquency date thereof. In addition,
Lessee shall pay all ad valorem taxes assessed against the building addition
designated herein as G-102 Extension. Copies of ail receipts marked “paid”
shall be delivered to Lessor prior to the delinquency date.


 


42.      Entire Agreement. This Lease
agreement contains the entire understanding and agreement between Lessor and
Lessee, and all prior negotiations and understandings are merged herein.


 


43.      Electricity, Water and Sewer.
Lessor may request that the electric, water and sewer utility companies
determine if Lessee is utilizing more electricity, water and sewer service than
the Building average per square foot for all tenants after Lessee occupies the
space. If the utilization is greater, Lessee shall pay the difference in the
averages multiplied by the number of square feet in the Premises to the Lessor
on a monthly basis.


 


44.      Limitation of Use. The use of the
Premises by Lessee shall only be described in Section 11 hereof. The
Lessee agrees that it will add additional equipment, capacity and/or scope of
services rendered only with the prior written consent of Lessor.


 


24

















 


45.      Quiet Use of Premises. Lessor
represents and warrants that it has full right and authority to enter into this
Lease and that Lessee, upon paying the rental herein set forth and performing
its other covenants and agreements herein set forth, shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof without hindrance
of molestation from Lessor or any third party claiming through Lessor, subject
to the terms and provisions of this Lease.


 


46.      Holding Over By Lessee. Lessee
shall not acquire any right of interest in the Premises by remaining in
possession after termination of this Lease. During any such period of holding
over, Lessee shall be a tenant at will subject to all other obligations imposed
upon it by this Lease. However, this Lease shall be deemed to have been
extended for an additional one-year period if (at any time after ten (10) days
from the termination of this Lease, but before Lessee vacates the Lease
Premises) Lessor notifies Lessee of Lessor’s election that the holding over
shall result in such an extension. During any such extension the terms of this
Lease, including rent at the rate then applicable as provided in Section 6A
and 6B of this Lease, shall remain in full force and effect during said
extended term of this Lease.


 


47.      Ethical Practices. It is expressly
understood and agreed by Lessee that Lessee’s reputation constitutes substantial
consideration for Lessor’s entering this agreement. Lessee covenants and agrees
to perform its business in an ethical manner and prohibit activities on the
Premises not in keeping with ethical


 


25

















 


religious directives for
Catholic health care facilities.


 


26

















 


IN WITNESS WHEREOF, the
Lessor has executed this agreement by an officer duly authorized to execute,
seal and deliver this agreement for and on behalf of the Lessor, and the Lessee
has executed, sealed and delivered this agreement or has caused this agreement
to be executed, sealed and delivered by this officer or general partner
thereunto authorized (whatever applicable) , this the day and year first above
written.


 


 


	
  ATTEST:

  	
   

  	
  Lessor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  445 Biltmore Center

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ Kenneth M. Michalove

  
	
   

  	
   

  	
   

  	
  Kenneth M. Michalove

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
					



 


 


	
  WITNESS

  	
   

  	
  Lessee

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ G. John Coli

  
	
   

  	
   

  	
   

  	
  G. John Coli

  



 


	
  WITNESS

  	
   

  	
  Lessee

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/ Charles C. Thomas

  
	
   

  	
   

  	
   

  	
  Charles C. Thomas, II,
  M.D.

  



 


27

















 


	
  STATE OF NORTH CAROLINA

  	
   

  
	
   

  	
  LESSOR

  
	
  COUNTY OF BUNCOMBE

  	
   

  



 


I, a Notary Public of said
State and County, do hereby certify that Kenneth M. Michalove, Exe. Vice
President personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.


 


WITNESS my hand and Notarial
Seal, this 4th day of October, 1996.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  	
  NOTARY
  PUBLIC

  



 


My Commission Expires


 


	
  My Commission Expires
  9-14-2000

  	
   

  



 


28

















 


	
  STATE OF NORTH CAROLINA

  	
   

  
	
   

  	
  LESSEE

  
	
  COUNTY OF BUNCOMBE

  	
  G. John Coli

  



 


I, a Notary Public of said
State and County, do hereby certify that G. John Coli personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.


 


WITNESS my hand and Notarial
Seal, this 4th day of October, 1996.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  	
  NOTARY
  PUBLIC

  



 


My Commission Expires


 


	
  My Commission Expires
  9-14-2000

  	
   

  



 


STATE OF NORTH CAROLINA


 


29

















 


	
  COUNTY OF PUNCOMBE

  	
   

  
	
   

  	
   

  
	
   

  	
  LESSEE

  
	
   

  	
   

  
	
   

  	
  Charles C.
  Thomas, II, M.D.

  



 


I, a Notary Public of said
State and County, do hereby certify that Charles C. Thomas II personally
appeared before me this day and acknowledged the due execution of the foregoing
instrument.


 


Witness my hand and Notarial
Seal, this 4th day of October, 1996.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  	
  Notary Public

  



 


My Commission Expires


 


	
  7-18-99

  	
   

  



 


30