Exhibit 10.47


 


FIRST AMENDMENT TO LEASE


 


This
FIRST AMENDMENT TO LEASE dated December 31, 2009 (this “Amendment”), is by and
between THERIAC ENTERPRISES OF CASA GRANDE, LLC (“Landlord”), and ARIZONA
RADIATION THERAPY MANAGEMENT SERVICES, INC. (“Tenant”).


 


WITNESSETH:


 


WHEREAS,
Landlord and Tenant are parties to that certain Lease dated March 12, 2007 (the
“Lease”), for certain real property commonly known as 1281 E. Cottonwood Lane,
Casa Grande, Arizona 85222, as more particularly described on Exhibit A,
attached hereto and made a part hereof; and


 


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


 


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


 


1.        Tenant’s
Insurance. The first clause of the
last sentence of Section 5.2(b) of the Lease is hereby deleted in its entirety
and replaced with the following:


 


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


 


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


 


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


 


(b)       in
the fifth line of the second paragraph, deleting the word “further”;


 


(c)       in
the seventeenth line of the second paragraph, deleting the word “subordinate”
and replacing it with “waive”;


 


(d)       in
the twenty-first line of the second paragraph, deleting the words “with Lender”;
and


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally
left blank;

signatures on following page.]


 


2

















 


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


 


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THERIAC
  ENTERPRISES OF CASA GRANDE, LLC

  
	
  Witness
  1:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Margarita Suarez

  	
   

  	
  By:

  	
  /s/
  Daniel E. Dosoretz, M.D.

  
	
  Signature

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, M.D.

  
	
   

  	
   

  	
  Its:

  	
   

  
	
  Margarita
  Suarez

  	
   

  	
   

  
	
  Printed
  Name

  	
   

  	
   

  



 


 


	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARIZONA
  RADIATION THERAPY MANAGEMENT SERVICES, INC.

  
	
  Witness
  2:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Authorized Signatory

  	
   

  	
  By:

  	
  /s/
  Bryan J. Carey

  
	
  Signature

  	
   

  	
  Name:

  	
  Bryan
  J. Carey

  
	
   

  	
   

  	
  Its:

  	
  EVP
  & CFO

  
	
  Authorized Signatory

  	
   

  	
   

  
	
  Printed
  Name

  	
   

  	
   

  



 


3

















 


EXHIBIT A


 


	
  Subject
  Property:

  	
   

  	
  A
  parcel of land being the East 285.50 feet of the North 400.15 Feet of the
  Northwest Quarter of Section 21, Township 6 South, Range 6 East of the Gila
  and Salt River Base and Meridian, Pinal County, EXCEPT the Bast 3S feet and
  the North 50 feet thereof.

  



 


4

















 


LEASE


 


THIS
LEASE (“Lease”) is made and entered into as of the 12th day of March, 2007, by and
between, Theriac Enterprises of Casa Grande, LLC, whose business address is
2234 Colonial Boulevard, Fort Myers, Florida 33907 (“Landlord”), and Arizona
Radiation Therapy Management Services Inc. whose business address is 2234
Colonial Blvd. Fort Myers, Florida 33907 (“Tenant”).


 


W I T N E S S E T H:


 


ARTICLE 1 

TERMS


 


1.1      Premises. Landlord hereby demises and leases to Tenant and Tenant hereby hires
and rents from Landlord the premises located within 1281 E. Cottonwood Lane,
Casa Grande, Arizona 85222 (the “Building”), and more particularly described in
Exhibit A to this Agreement (“Premises”) upon the terms, covenants and
conditions set forth herein, which Premises has a floor area containing the
approximate square footage of 9,943 square feet.


 


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


 


1.3      Commencement
of Term. The commencement of the Term of this Lease
under which Tenant shall be obligated to commence payment of Minimum Rent and
Additional Rent shall be the 12th day of March, 2007 (“Commencement Date”).


 


1.4      Length
of the Term. The term of this lease
period is for ten years (10) years (“Term”). The starting date of this lease is
the Commencement Date and, unless this Lease is renewed in accordance with
Article 4 below, the ending date is the 28th day of February, 2017 (“Expiration
Date”).


 


1.5      Tenant’s
Proportionate Share. Tenant shall be
responsible for its proportionate share (the “Tenant’s Proportionate Share”) of
all operating costs, taxes, assessments, insurance and all other expenses
related to the Building based on the rentable square footage of the Premises
divided by the rentable square footage for the Building, which is currently
69.94% (9,943 s.f./14,216 s.f.).


 


ARTICLE 2 

RENT


 


2.1      Rent. Minimum rent shall be Thirty Wine Thousand Eighty Three Dollars and
Thirty Nine Cents ($39,083.39) per month (“Minimum Rent”). Tenant shall pay to
Landlord without previous demand thereof and without any abatement, reduction,
setoff or deduction whatsoever, the Minimum Rent (together with any applicable
sales tax and local taxes if the same are ever required by law), payable in
equal monthly installments, in advance, on the first day of each and every
calendar month throughout the Term of this Lease. The Minimum Rent shall
commence to accrue on the Commencement Date. The first such monthly
installments of Minimum Rent shall be due and payable to Landlord no later than
the Commencement Date and each subsequent monthly installment shall be due and
payable to Landlord on the first day of each and every calendar month following
the Commencement Date during the Term hereof. If


 

















 


the
Commencement Date is a date other than the first day of the month, Minimum Rent
and other charges for the period commencing with and including the Commencement
Date through the first day of the following month shall be prorated at the rate
of one-thirtieth (1/30) of the monthly Minimum Rent per day.


 


In
addition, Tenant shall pay as Additional Rent monthly payments of Tenant’s
Proportionate Share of all applicable taxes, assessments and insurance on the
Building. This amount will be Tenant’s Proportionate Share times l/12th of the
bill for annual real estate and assessment taxes and 1/12th of the annual bill
on insurance. Estimated figures for taxes and insurance monthly rate will be
produced within ten (10) days after the signing of this Lease. Each year
Landlord will produce any insurance, real estate tax and assessment bills to
the Tenant to show how the estimated taxes and insurance were computed as
Additional Rent. In the event of any overage or underage due to the actual
amounts owed and the payments made based on the estimated amounts during any
Lease year, Landlord shall reimburse to Tenant the amount of any overage paid
by Tenant or Tenant shall pay to Landlord the amount of any underage due from
Tenant in either case within thirty (30) days of the delivery of the bills to
Tenant as herein provided.


 


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


 


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


 


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


 


2.3      Interest
on Past Due Rent. If Tenant shall fail to
pay, when the same is due and payable, Minimum Rent, or Additional Rent, such
unpaid amounts shall bear interest from the due date thereof to the date of
payment, at the prime interest rate of the JPMorgan Chase Bank as of such due
date, plus fifteen percent (15%) (“Default Date”).


 

















 


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


 


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


 


ARTICLE 3 

NET LEASE


 


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


 


3.1.1
Its proportionate share of any parking lot repairs, maintenance and
replacements.


 


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


 


ARTICLE 4 

OPTION TO RENEW


 


4.1      Option
to renew. Provided that Tenant is
not then in default under any of the covenants, terms, conditions, and
provisions of this Lease beyond any applicable notice and cure period, then
Tenant shall have three (3) options to renew this Lease (each an “Option”) for
consecutive five (5) year option periods, provided that, in order to exercise
this Option, Tenant is required to give to Landlord written notice thereof not
less than six (6) months before the date of expiration of the Term of this
Lease or the then expiring option period. Any renewal pursuant to this Option
shall be on the same terms and conditions as are contained in this Lease.


 


ARTICLE 5 

INSURANCE AND INDEMNITY


 


5.1      Landlord’s
Insurance. At all times during the
Term, Landlord will carry and maintain:


 

















 


(a)    Fire
and extended coverage insurance covering the Building in which the Premises is
located, its equipment, and the Common Areas;


 


(b)    Bodily
injury and property damage insurance; and


 


(c)    Such
other insurance as Landlord reasonably determines from time to time.


 


The
insurance coverage and amounts in this Section 5.1 will be determined by
Landlord, based on coverages carried by prudent owners of comparable buildings
in the vicinity of the Premises.


 


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


 


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


 


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


 


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


 


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


 


5.3      Forms
of Policies. All policies of
liability insurance which Tenant is obligated to maintain according to this
Lease (other than any policy of worker’s compensation insurance) will name
Landlord and such other persons or firms as Landlord specifies from time to
time as additional named insureds. Original or copies of original policies and
certificates of insurance on the most current ACORD form (together with copies
of the endorsements naming Landlord and


 

















 


any
others specified by Landlord as additional insureds) and evidence of the
payment of all premiums of such policies will be delivered to Landlord prior to
the earlier of the Commencement Date or Tenant’s occupancy of the Premises and
from time to time at least thirty (30) days prior to the expiration of the term
of each such policy. Tenant’s insurer shall have a Best Rating of at least A
and be assigned a financial size category of at least Class X as rated in the
most recent edition of “Best’s Key Rating Guide” for insurance companies. All
liability policies maintained by Tenant will contain a provision that Landlord
and any other additional insureds, although named as an insured, will
nevertheless be entitled to recover under such policies for any loss sustained
by Landlord and such other additional insureds, its agents, and employees as a
result of the acts or omissions of Tenant. All such policies maintained by
Tenant will provide that they may not be terminated or amended except after
thirty (30) days’ prior written notice to Landlord. All required insurance
policies maintained by Tenant must be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord carries or
may carry.


 


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


 


5.5      Indemnification. Tenant shall indemnify, defend and save Landlord harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or destruction
of property arising from or out of any occurrence in, upon or at the Premises, or
any part thereof, or the occupancy or use by Tenant of the Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Tenant, its
agents, contractors, employees, servants, lessees or concessionaires, except
which result from Landlord’s gross negligence or willful misconduct. Landlord
shall indemnify, defend and save Tenant harmless from and against any and all
claims, actions, damages, liability and expense in connection with loss of
life, personal injury and/or damage to or destruction of property arising from
or out of any occurrence in, upon or at the Premises occasioned in whole or in
part by any negligent act or omission by Landlord, its agents, contractors,
employees, servants or concessionaires. In case the indemnifying party shall be
made a party to any litigation commenced by or against the other party, then
such other party shall protect and hold the indemnified party harmless and pay
all costs and attorney’s fees incurred by the indemnified party in connection
with such litigation, and any appeals thereof. The defaulting party shall also
pay all costs, expenses and reasonable attorney’s fees that may be incurred or
paid by the other party in enforcing the covenants and agreements in this
Lease.


 

















 


ARTICLE 6 

UTILITIES


 


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


 


ARTICLE 7 

SUBORDINATION AND ATTORNMENT


 


7.1      Subordination. Tenant hereby subordinates its rights hereunder to the lien of any
ground or underlying leases, any mortgage or mortgages, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the Premises and to all advances made or hereafter to be made upon the security
thereof so long as the lessor or mortgagee or other lien holder thereunder
agrees not to disturb Tenant’s possession of the Premises or rights under this
Lease so long as Tenant is not in default hereunder. This Section shall be
self-operative and binding upon Tenant and any such lessor, mortgagee or other
lien holder, and no further instrument of subordination shall be required by
any mortgagee, but Tenant agrees upon request of Landlord, from time to time,
to promptly execute and deliver any and all documents evidencing such
subordination and non-disturbance, and failure to do so shall constitute a
default under this Lease.


 


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


 


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


 


ARTICLE 8 

ASSIGNMENT AND SUBLETTING


 


Except
as herein provided, Tenant may not assign this lease in whole or in part, nor
sublet all or any portion of the Premises, without the prior written consent of
Landlord in each instance, which shall not be unreasonably withheld or delayed
and shall be deemed granted if not given or denied in writing within thirty
(30) days from Tenant’s written request therefor. Further, notwithstanding the
foregoing, such consent shall not be required if such assignment or sublease is
from Tenant to a wholly owned subsidiary of Tenant or to a wholly owned
subsidiary of Tenant’s parent, if any. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment or subletting.


 






 










 


No
assignment, under letting, occupancy or collection shall be deemed acceptance
of the assignee, subtenant or occupant as Tenant, or a release of Tenant from
the further performance by Tenant of the covenants on the part of Tenant herein
contained. This prohibition against any assignment or subleasing is by
operation of law, legal process, receivership, bankruptcy or otherwise, whether
voluntary or involuntary. Landlord by its acceptance hereof acknowledges that
Tenant may mortgage or collaterally assign its interest in and to this Lease
and the leasehold estate created hereunder to institutional lenders providing
financing to Tenant, to Tenant’s parent, if any, or to any subsidiary or
affiliate of Tenant. Tenant shall remain fully liable on this Lease and shall
not be released from performing any of the terms, covenants and conditions
hereof or any rents or other sums to be paid hereunder. Tenant acknowledges and
agrees that any and all right and interest of the Landlord in and to the
Premises, and all right and interest of the Landlord in this Lease, may be
conveyed, assigned or encumbered at the sole discretion of the Landlord at any
time. In addition, notwithstanding the foregoing to the contrary, Tenant shall
have the right to license or sublet all or any portion of the Premises to a
physician, physician group, professional corporation or other entity licensed
to practice medicine in the State of Arizona or to such other individuals or
entities providing health-related services, without first obtaining Landlord’s
prior consent.


 


ARTICLE 9

FACILITIES


 


9.1      Control
of Common Areas by Landlord.
All automobile parking areas, driveways, entrances and exits thereto, and other
facilities furnished by Landlord at or near the Premises, including employee
parking areas, the truck way or ways, loading docks, package pick-up stations,
pedestrian sidewalks and ramps, landscaped areas, exterior stairways, and other
areas and improvements provided by Landlord for the general use, in common, of
tenants, their officers, agents, employees and customers, shall at all times be
subject to the exclusive control and management of Landlord, and Landlord shall
have the right from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in this Article.
Landlord shall have the right to construct, maintain and operate lighting
facilities on all said areas and improvements; from time to time to change the
area, level, location and arrangement of parking areas and other facilities
hereinabove referred to and to restrict parking by tenants, their officers,
agents and employees to employee parking areas. Landlord shall not have any
duty to police the traffic in the parking areas. Landlord shall provide not
less than 55 parking spaces within the parking area, which Landlord warrants
meets all parking requirements of any governmental authority, which shall
include not less than 5 handicapped spaces.


 


ARTICLE 10 

TENANT’S FIXTURES AND IMPROVEMENTS


 


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


 

















 


Landlord
detailed drawings and plans of the proposed Alterations at the time Landlord’s
approval is sought. If such approval is granted, Tenant shall cause the work
described in such plans and specifications to be performed, at its expense,
promptly, efficiently, competently and in a good and workmanlike manner by duly
qualified and licensed persons or entities approved by Landlord, using first
grade materials. All such work shall comply with all applicable codes, rules,
regulations and ordinances. The Tenant shall at all times maintain fire
insurance with extended coverage in an amount adequate to cover the cost of
replacement of all alterations, decorations, additions or improvements to the Premises
by Tenant in the event of fire or extended coverage loss. Tenant shall deliver
to the Landlord certificates of such fire insurance policies, which shall
contain a clause requiring the insurer to give the Landlord ten (10) days
notice of cancellation of such policies.


 


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


 


10.3    Tenant’s
Leasehold Improvements and Trade Fixtures; Landlord’s Lien Waiver. All leasehold improvements (as distinguished from trade fixtures and
apparatus) installed in the Premises at any time, whether by or on behalf of
Tenant or by or on behalf of Landlord, shall not be removed from the Premises
at any time, unless such removal is consented to in advance by


 

















 


Landlord;
and at the expiration of this Lease (either on the Expiration Date or upon such
earlier termination as provided in this Lease), all such leasehold improvements
shall be deemed to be part of the Premises, shall not be removed by Tenant when
it vacates the Premises, and title thereto shall vest solely in Landlord
without payment of any nature to Tenant.


 


All
trade fixtures, equipment, furniture, inventory, and apparatus (as
distinguished from leasehold improvements) owned by Tenant and installed in the
Premises shall remain the property of Tenant and shall be removable at any
time, including upon the expiration of the Term; provided Tenant shall not at
such time be in default of any terms or covenants of this Lease, and provided
further, that Tenant shall repair any damage to the Premises caused by the
removal of said trade fixtures and apparatus and shall restore the Premises to
substantially the same condition as existed prior to the installation of said
trade fixtures and apparatus and shall restore the Premises to substantially
the same condition as existed prior to the installation of said trade fixtures
and apparatus. Landlord acknowledges that Tenant may from time to time or at
any time grant security interests in and to its trade fixtures, equipment,
furniture, inventory and apparatus in order to secure financing provided to
Tenant. Landlord consents to Tenant’s granting one or more security interests
in and to Tenant’s trade fixtures, equipment, furniture, inventory and
apparatus and covenants and agrees that any security interest in and to the
Tenant’s trade fixtures, equipment, furniture, inventory and apparatus in favor
of any lender or financier thereof shall be superior to any interest which
Landlord may at any time have in and to Tenant’s trade fixtures, equipment,
furniture, inventory and apparatus and Landlord, for itself, its successors
and/or assigns, does hereby subordinate any and all liens, encumbrances and/or
security interests which it has or may have in and to Tenant’s trade fixtures,
equipment, furniture, inventory and apparatus, whether expressly created in
this Lease or any other instrument by and between Landlord and Tenant, or by
virtue of any statute or under common law. Landlord covenants and agrees with
Lender that, for so long as any lender or financier holds any lien, encumbrance
of security interest in and to Tenant’s trade fixtures, equipment, furniture,
inventory and apparatus, Landlord will not assert against any of Tenant’s trade
fixtures, equipment, furniture, inventory and apparatus any statutory, common
law, contractual, or possessory lien or security interest, including without
limitation any right of levy or destraint for rent, all of which Landlord does
hereby waive and subordinate. Landlord agrees that any such lender or financier
may enter upon the Premises at any time or from time to time, during normal
business hours, so long as Tenant is in possession of the Premises, without
charge, to inspect or remove any of Tenant’s trade fixtures, equipment,
furniture, inventory and apparatus therefrom. Landlord covenants and agrees
that Landlord will not hinder or delay any such lender’s or financier’s actions
in enforcing its liens, security interests, and remedies with respect to Tenant’s
trade fixtures, equipment, furniture, inventory and apparatus.


 


ARTICLE 11 

MAINTENANCE AND REPAIR OF PREMISES


 


11.1    Maintenance
by Tenant. Tenant shall at all
times keep in good order, condition and repair (which shall include the
providing of replacements where necessary) the entire Premises and the interior
portions of the Building (excepting only the interior portions of the Building
being leased by other parties) including, without limitation, the roof, the
exterior and all glass and show window moldings; and all partitions, doors,
interior walls, fixtures, equipment and appurtenances thereto, including
lighting, heating and plumbing fixtures serving the Premises only and any air
conditioning system and sprinkler system situated within and/or servicing the
Premises, reasonable and ordinary wear and tear excepted. Said maintenance by


 

















 


Tenant
shall include, without limitation, periodic painting as is reasonably
necessary. All cutting and patching of the roof area required for any reason
whatsoever for Tenant’s use and occupancy of the Premises shall be performed by
the Landlord’s roofing subcontractor. In the event that Tenant causes such work
to be performed by anyone other than the Landlord’s roofing subcontractor,
Landlord will have the right, at Tenant’s sole cost and expense and without
notice to Tenant, to cause said work and the roof area affected thereby to be
inspected and/or repaired by Landlord’s roofing subcontractor. All repairs,
replacements, or maintenance of any item or any type of the Premises, other
than building structure and any capital improvements thereto, is the
responsibility of the Tenant and to be paid for by Tenant. Tenant shall be
entitled to recover from Landlord the costs of all repairs made by Tenant to
the roof and interior portions of the Building (excepting those repairs made
solely for the benefit of the Tenant and/or Premises) less the Tenant’s
Proportionate Share. Landlord shall endeavor to collect the amounts due from
the other tenant(s) within the Building upon receipt of the paid invoices
from Tenant; however, Landlord shall not be liable for any such amounts unless
and until the other tenant(s) within the Building have provided such sums
due to Landlord.


 


11.2    Maintenance
by Landlord. Other than maintenance
obligations of Tenant as provided in Section 11.1, Landlord shall be
responsible for all other maintenance to the Premises, the building in which
the Premises are located and all common and parking areas, including without
limitation all structural elements of the building, all capital improvements,
all common plumbing facilities, and paving and striping of the parking areas.


 


ARTICLE 12

SIGNS


 


On
or before the Commencement Date, Tenant will at its sole cost and expense
purchase and cause to be installed upon the exterior of the Premises a sign
which in all respects conforms to the criteria established by Landlord.
However, Tenant will not install said sign without first obtaining Landlord’s
written approval thereof, which shall not be unreasonably withheld or delayed
and shall be deemed granted if written approval or rejection thereof has not
been received within thirty (30) days of Tenant’s written request therefore.
Thereafter, Tenant will not place or suffer to be placed or maintain on any
portion of the exterior (including windows) of the Premises any sign, awning,
canopy or advertising matter or other thing of any kind, without first
obtaining Landlord’s written approval and consent. Without limitation as to the
foregoing, Landlord specifically reserves the right at any time during the term
of this Lease to require Tenant to remove from the Premises any sign(s) situated
thereon which have not been approved pursuant to the foregoing provisions and
to replace same with a sign or signs which in all respects conform to a sign
standard designated by Landlord, all of which will be performed at Tenant’s
sole cost and expense. Tenant agrees to maintain any such sign, awning, canopy,
decoration, lettering, advertising matter or other thing as may be approved in
good condition and repair at all times, reasonable and ordinary wear and tear
excepted, and to repaint or replace such signs from time to time when
reasonably necessary and to illuminate such signs in accordance with standards
established by Landlord from time to time, including hours of illumination. All
signs in addition must be conform to code and local ordinances rules, laws and
regulations.


 

















 


ARTICLE 13 

WASTE AND GOVERNMENTAL REGULATIONS


 


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


 


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


 


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


 


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


 


ARTICLE 14 

HAZARDOUS MATERIALS


 


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


 

















 


same
meaning as is ascribed to it in the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended, (“CERCLA”).
The term “Hazardous Materials” means (i) any substance defined as a “hazardous
substance” under CERCLA, (ii) petroleum, petroleum products, natural gas,
natural gas liquids, liquefied natural gas, and synthetic gas, and (iii) any
other substance or material deemed to be hazardous, dangerous, toxic, or a
pollutant under any federal, state, or local law, code, ordinance or regulation
(“Hazardous Materials Laws”).


 


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


 


14.2    Disclosure
Warning and Notice Obligations.
Tenant shall comply with all laws, ordinances and regulations in the State of
Arizona regarding the disclosure of the presence or


 

















 


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


 


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


 


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


 


ARTICLE 15 

DESTRUCTION OF PREMISES


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


If
the Premises shall be damaged or destroyed and in the event that neither party
has elected to terminate this Lease as aforesaid, Landlord and Tenant shall
commence their respective obligations under this Article as soon as is
reasonably possible and prosecute the same to completion with all due
diligence.


 


The
Minimum Rent shall be abated proportionately with the degree to which Tenant’s
use of the Premises is impaired during the period of any damage, repair or
restoration provided for in this Article; provided further, that in the event
Landlord elects to repair any damages as herein contemplated, any abatement of
Minimum Rent shall end thirty (30) days after written notice by Landlord to
Tenant that the Premises have been repaired. Tenant shall continue the
operation of its business on the Premises during any such period to the extent
reasonably practicable from the standpoint of prudent business management, and
any obligation of Tenant under the Lease to apply charges reserved as
Additional Rent shall remain in full force and nothing in the Section shall
be construed to abate Additional Rent. Except for the abatement of Minimum Rent
hereinabove provided, Tenant shall not be entitled to any compensation or
damage for loss in the use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned


 

















 


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


 


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


 


ARTICLE 16 

EMINENT DOMAIN


 


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


 


16.2    Partial
Condemnation of Premises.


 


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


 


16.2.2       In
the event that less than twenty (20%) percent of the Premises shall be acquired
or condemned by eminent domain for any public or quasi-public use or purpose,
or in the event twenty (20%) percent or more of the Premises shall have been so
taken, and Tenant shall not elect to terminate this Lease as set forth above,
then the Landlord shall promptly restore the Premises to a condition reasonably
comparable under the circumstances to its condition at the time of such
condemnation, less the portion lost in the taking; and this Lease shall
thereafter continue in full force and effect. In such event of a partial
taking, described hereinabove, from the effective date that physical possession
is taken by the condemning authority through the end of the term of this Lease,
the annual Minimum Rent payable by Tenant to Landlord under this Lease shall be
reduced by a fraction, the numerator of which shall be the gross area of the
premises so taken by the condemning authority and the denominator of which
shall be the gross area of the Premises on the date immediately prior to the
effective date of such taking.


 


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


 


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


 

















 


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


 


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


 


ARTICLE 17

DEFAULTS


 


17.1    Events
of Default By Tenant. If (1) Tenant
abandons or surrenders all or any part of the Premises prior to the expiration
of the Term of the Lease or (2) Tenant fails to pay Rent or Additional
Rent within five (5) days after notice from Landlord of delinquency, (3) Tenant
fails to fulfill any of the terms or conditions of this Lease or any other
lease heretofore made by Tenant for space in the Premises and the same is not
cured within thirty (30) days after written notice thereof from Landlord,
unless the same cannot be cured within said thirty (30) day period, in which
case Tenant shall have such additional time as is reasonably necessary to cure
such default, not to exceed ninety (90) days in any and all events, provided
that Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes the same to completion, or (4) the
appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant’s assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant’s assets located
at the Premises, or of Tenant’s interest in this Lease, occurs, and in the case
of an involuntary appointment only, the same is not dismissed within ninety
(90) days from said appointment, or (5) Tenant or any of its successors or
assigns or any guarantor of this Lease (“Guarantor”) should file any voluntary
petition in bankruptcy, reorganization or arrangement, or an assignment for the
benefit of creditors or for similar relief under any present or future statute,
law or regulation relating to relief of debtors, or (6) Tenant or any of
its successors or assigns or any Guarantor should be adjudicated bankrupt or
have an involuntary petition in bankruptcy, reorganization or arrangement filed
against it and the same not be dismissed within ninety (90) days of the date of
the filing thereof, or (7) Tenant shall permit, allow or suffer to exist
any lien, judgment, writ, assessment, charge, attachment or execution upon
Landlord’s or to the Premises, and/or the fixtures, improvements and
furnishings located thereon, except as otherwise permitted herein; then, Tenant
shall be in default hereunder.


 


17.2    Landlord’s
Default. If Tenant asserts that Landlord has failed
to meet any of its obligations under this Lease, Tenant shall provide written
notice (“Notice of Default”) to Landlord specifying the alleged failure to
perform, and Tenant shall send by certified mail, return receipt requested, a copy
of such Notice of Default to any and all mortgage holders, provided that Tenant
has been previously advised of the addresses) of such mortgage holder(s).
Landlord shall have a thirty (30) day period after receipt of the Notice of
Default in which to commence curing any non-performance by Landlord, and
Landlord shall have as much time thereafter to complete such cure as is
necessary so long as Landlord’s cure efforts are diligent and continuous, if
Landlord has not begun the cure within thirty (30) days of receipt of the
Notice of Default, or


 














 


Landlord
does not thereafter diligently and continuously attempt to cure, then Landlord
shall be in default under this Lease. If Landlord is in default under this
Lease, then the mortgage holder(s) shall have an additional thirty (30)
days, after receipt of a second written notice from Tenant, within which to
cure such default or, if such default cannot be cured within that time, then
such additional time as may be necessary so long as their efforts are diligent
and continuous.


 


ARTICLE 18

LANDLORD’S REMEDIES FOR TENANT’S DEFAULT.


 


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


 


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


 


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


 


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


 


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


 


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


 


If
Landlord exercises the remedy above, and provided that Tenant has paid Landlord
the accelerated Rent as required by this Section, Landlord shall remit to
Tenant on a monthly basis until the Expiration Date any amounts actually
collected by Landlord as a result of are letting remaining after subtracting
therefrom all reasonable costs paid by Landlord to secure a replacement tenant
including reasonable marketing/leasing costs, fees and commissions, and costs
of preparing improvements and refurbishment to the Premises for the replacement
tenant.


 

















 


In
no event shall the total amount paid to Tenant pursuant to the preceding
sentence exceed the accelerated Rent paid by Tenant to Landlord. If this Lease
is terminated, Landlord may re-let the Premises or any part thereof, alone or
together with other premises, for such term or terms (which may be greater or
less than the period which otherwise would have constituted the balance of the
Term) and on such terms and conditions (which may include concessions or free
rent and alterations of the Premises) as Landlord, in its sole discretion, may
determine, but Landlord shall not be liable for nor shall Tenant’s obligations
hereunder be diminished by reason of, any failure by Landlord to re-let the
Premises or any failure by Landlord to collect any rent due upon such
re-letting.


 


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


 


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


 


ARTICLE 19 

BANKRUPTCY PROVISIONS


 


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


 


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


 


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


 


19.2.2       In
the event of an assumption of this Lease by a debtor or by a trustee, such
debtor or trustee shall within fifteen (15) days after such assumption (i) cure
any default or provide adequate assurance that defaults will be promptly cured;
(ii) compensate Landlord for


 

















 


actual
pecuniary loss or provide adequate assurance that compensation will be made for
actual monetary loss, including, but not limited to, all attorneys’ fees and
costs incurred by Landlord resulting from any such proceedings; and (iii) provide
adequate assurance of future performance.


 


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


 


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


 


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


 


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


 


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


 

















 


ARTICLE 20 

LIMITATIONS OF LANDLORD’S LIABILITY


 


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


 


ARTICLE 21 

ACCESS BY LANDLORD


 


Landlord
or Landlord’s agents shall have the right to enter the Premises at all
reasonable times and, except in the case of emergency, on not less than
forty-eight (48) hours prior notice to Tenant, to examine the same and to show
them to prospective purchasers of the building, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon
said Premises that may be required therefore, without the same constituting an
eviction of Tenant in whole or in part and the Rent reserved shall in no way
abate while said repairs, alterations, improvements, or additions are being
made, by reason of loss or interruption of business of Tenant, or otherwise.
During the six (6) month period prior to the expiration of the term of
this Lease or any renewal term, unless Tenant shall have exercised its then
right to renew the term of this Lease, Landlord may exhibit the Premises to
prospective tenants or purchasers, and place upon the premises the usual
notices “To Let” or “For Sale” which notices Tenant shall permit to remain
thereon without molestation. Nothing herein contained, however, shall be deemed
or construed to impose upon Landlord any obligation, responsibility or
liability whatsoever, for the care, maintenance, or repair of the Premises or
any part thereof, except as otherwise herein specifically provided. Landlord
shall give Tenant reasonable notice during business hours prior to any entry.
Landlord acknowledges that Tenant is a health care provider subject to the
Health Insurance Portability and Accountability Act (HIPAA) of 1996 and in
accordance therewith, Tenant is required to maintain the privacy of its
patients. Landlord agrees to use commercially reasonable efforts to avoid
contact with such confidential patient records or other information when access
to the Premises by Landlord is permitted hereunder, and Landlord shall be
accompanied by an


 

















 


agent
or employee of Tenant when entering the Premises in accordance with the terms
of this Lease.


 


ARTICLE 22 

QUIET ENJOYMENT


 


22.1    Landlord’s
Covenant. So long as this Lease
is in full force and effect, Tenant shall peaceably and quietly hold and enjoy
the Premises for the term hereby demised without hindrance or interruption by
Landlord or any other person or persons lawfully or equitably claiming by,
through or under the Landlord, subject, nevertheless, to the terms and
conditions of this Lease.


 


ARTICLE 23
  MISCELLANEOUS


 


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


 


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


 


23.3    Notices.


 


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


 


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


 


	
  Landlord:

  	
   

  	
  Tenant:

  
	
  2234
  Colonial Blvd.

  	
   

  	
  2234
  Colonial Blvd.

  
	
  Fort
  Myers, FL 33907

  	
   

  	
  Fort
  Myers, FL 33907

  



 

















 


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


 


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


 


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


 


23.6    Broker’s
Commission. The Tenant represents
and warrants to Landlord that it has dealt with no real estate broker, agent,
salesperson or finder in connection with this Lease or the Premises.
Notwithstanding the foregoing, Tenant agrees to indemnify, defend and save the
Landlord harmless from all liabilities arising from claims by any real estate
broker or agent claiming through Tenant. Such indemnity of Tenant shall
include, without limitation, all of attorneys, fees incurred in connection
therewith.


 


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


 


23.8    Estoppel
Certificate. Landlord and Tenant
agree that each will, at any time and from time to time, within ten (10) days
following written notice by the other party hereto specifying that it is given
pursuant to this Section, execute, acknowledge and deliver to the party who
gave such notice, or its designate, a statement in writing certifying that this
Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and effect and stating the
modifications), and the date to which the annual rent and any other payments
due hereunder from Tenant have been paid in advance, if any, and stating
whether or not there are defenses or offsets claimed by the maker of the
certificate and whether or not to the best of knowledge of the signer of such
certificate the other party is in default in performance of any covenant
agreement or condition contained in this Lease, and if so, Specifying each such
default of which the maker may have knowledge and if requested, such financial
information concerning Tenant and Tenant’s business operations (and the
Guarantor of this Lease, if this Lease be guaranteed) as may be reasonably
requested by any Mortgagee or


 

















 


prospective
mortgagee or purchaser. The failure of either party to execute, acknowledge and
deliver to the other a statement in accordance with the provisions of this Section within
said ten (10) business day period shall constitute an acknowledgment, by
the party given such notice, which may be relied on by any person holding or
proposing to acquire an interest in the Building or any party thereof or the
Premises or this Lease from or through the other party, that this Lease is
unmodified and in full force and
effect and that such rents have been duly and fully
paid to an including the respective due dates immediately preceding
the date of such notice and shall constitute, as to any person entitled as
aforesaid to rely upon such statements, waiver of any defaults which may exist
prior to the date of such notice; provided, however that nothing contained in
the provision of this Section shall constitute waiver by Landlord of any
default in payment of rent or other charges existing as of the date of such
notice and, unless expressly consented to in writing by Landlord, and Tenant
shall still remain liable for the same.


 


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


 


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


 


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


 


ARTICLE 24 

TENANT’S PROPERTY


 


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


 


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


 


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


 

















 


ARTICLE 25

HOLDING OVER SUCCESSORS


 


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


 


ARTICLE 26 

ATTORNEY FEES AND COSTS


 


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


 


ARTICLE 27 

GOVERNING LAW


 


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


 

















 


IN
WITNESS WHEREOF, the undersigned has hereunto set his hand and seal on 12 day
of March, 2007.


 


 


	
   

  	
   

  	
  LANDLORD:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  	
  /s/ Authorized Signatory

  



 

















 


EXHIBIT A


 


	
  Subject
  Property:

  	
   

  	
  A
  parcel of land being the East 285.50 feet of the North 400.15 Feet of the
  Northwest Quarter of Section 21, Township 6 South, Range 6 East of the
  Gila and Salt River Base and Meridian, Pinal County, EXCEPT the East 35 feet
  and the North 50 feet thereof.