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EXHIBIT 10.1
CENTER FOR THE MEDICAL ARTS AT CORAL SPRINGS
STANDARD
LEASE AGREEMENT
Dated as of November 28, 1989
Between: XXXXXXXXX AND XXXXXX ASSOCIATES LIMITED PARTNERSHIP,
as Landlord
AND
UNIVERSITY RADIOTHERAPY ASSOCIATES, LTD.,
As Tenant
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CENTER FOR THE MEDICAL ARTS AT CORAL SPRINGS
STANDARD
LEASE AGREEMENT
THIS LEASE, made as of the 28th day of November, 1989, by XXXXXXXXX AND BOINIS
ASSOCIATES LIMITED PARTNERSHIP, a Florida limited partnership (herein called
"Landlord"), and UNIVERSITY RADIOTHERAPY ASSOCIATES, LTD., a Florida limited
partnership (herein called "Tenant").
SUMMARY OF LEASE PROVISIONS
The following constitutes a summary of certain of the provisions of this Lease,
and is set forth solely to facilitate reference by the parties to such Lease
provisions. In the event of any conflict between the terms set forth in this
summary and the terms set forth in any Section of this Lease, the latter shall
be deemed to control.
(a) Landlord's Address: 0000 Xxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxxx,
Xxxxxxx 00000.
(b) Xxxxxx'x Xxxxxxx: Xxxxx 000, Xxx Xxxx Corporate Center, 0000 Xxxxx Xxxxx
Xxxx 0, Xx. Xxxxxxxxxx, Xxxxxxx 00000.
(c) Tenant's Trade Name: N/A
(d) Lease Guarantee: $250,000 Guarantee of Lease Obligations; full guarantee of
construction loan; each in form of pledged investor notes or letter of
credit or similar collateral acceptable to Landlord.
(e) Rental Commencement Date: date CO is issued.
(f) Lease Term: ten (10) years after the Rental Commencement Date, with two 10
year renewal options.
(g) Premises: Suite No. 101, located within Building No. 2101.
(h) Leasable Area of the Premises: Approximately 4,000-5,000 square feet.
(i) Fixed Minimum Annual Rent (excluding sales tax payable thereon) shall be
calculated by multiplying the actual leasable square footage of the Leased
Premises by the following rates:
Lease Year 1 $11.50/SF Lease Year 6 $19.00/SF
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Lease Year 2 $13.50/SF Lease Year 7 $20.00/SF
Lease Year 3 $15.50/SF Lease Year 8 $21.00/SF
Lease Year 4 $17.00/SF Lease Year 9 $22.50/SF
Lease Year 5 $17.00/SF Lease Year 10 $23.00/SF
First Renewal term - increased annually by the greater of 4% or CPI,
subject to 7% maximum annual increase.
Second Renewal term - increased annually by CPI.
together with all applicable sales taxes thereon.
(j) Security Deposit: $-0-
(k) Leasing Brokerage: CMA Marketing, Inc.
(l) Permitted Use of Premises: Cancer treatment center.
(m) Proportionate Share: Tenant's Proportionate Share of Center Common Area
Assessments shall be calculated by dividing the actual leasable square
footage of the Leased Premises by 106,975 square feet, and of Building
Assessments shall be calculated by dividing the actual leasable square
footage of the Leased Premises by the total leasable square footage of the
Building.
(n) Tenant Improvement Allowance: Landlord will improve Leased Premises as per
agreed upon plans and specifications, provided that Tenant shall be
responsible for all costs and expenses in excess of $50.00 per square foot;
provided, however, that Landlord shall make the Loan described herein.
(o) Landlord Loan: In the event and to the extent that the costs of Tenant's
leasehold improvements exceed the $50/SF allowance, Landlord agrees that,
so long as Tenant pays 40% of such excess in cash as and when due, Landlord
will lend the remaining 60% to Tenant at 10.5% interest (the "Loan"). The
Loan shall be repaid in 60 equal, consecutive monthly installments,
commencing on the Rental Commencement Date, shall be represented by
Tenant's note, and shall be secured by a pledge of personal recourse
investor notes or a letter of credit or other collateral acceptable to
Landlord, in any event equal to the amount of the Loan from time to time
outstanding.
W I T N E S S E T H:
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ARTICLE I
PREMISES AND TERM
Section 1.01 Leased Premises.
(a) In consideration of the rents, covenants and agreements hereafter
reserved and contained on the part of Tenant to be observed and performed, the
Landlord demises and leases to the Tenant, and Tenant rents from Landlord, those
certain premises now existing or hereafter to be erected in Coral Springs,
Broward County, Florida, and being designated as Xxxxx 000 xx Xxxxxxxx Xx. 0000
(herein called the "Building") located within the Center For The Medical Arts At
Coral Springs (herein called the "Center"), which premises consist of
approximately 4,000-5,000 square feet (herein called the "Leased Premises"). The
site plan for the Center is attached hereto as Exhibit "A" and made a part
hereof. The Building is located upon that real property (herein called the
"Property") legally described in Exhibit "B" attached hereto and made a part
hereof. The approximate square footage area stated above shall be revised and
certified by the architect based upon the final plans approved by Landlord and
Tenant, and such revised figure shall be used in the calculation of rent and
other sums as appropriate under this Lease. No deduction or exclusion from
leasable square footage shall be made in computing any rents by reason of
columns, stairs or other interior construction, obstruction or equipment, and
all dimensions shall be measured from the center line of interior walls and/or
from the exterior face of exterior walls. The square footage of the Leased
Premises as so calculated by the architect, as well as any other areas within
the Center or the Building, may hereinafter be called "square footage," "actual
square footage," leasable square footage," "total leasable square footage,"
"actual leasable square footage" or any similar term, all of which shall have
the same meaning and be calculated in the aforesaid manner.
(b) Landlord reserves the right to make such amendments, changes and
revisions to the site plan (including any buildings shown thereon) as Landlord,
in its sole discretion, may deem proper.
(c) The use and occupation by Tenant of the Leased Premises shall
include the nonexclusive use, in common with others entitled thereto, of the
Building Common Areas and the Center Common Areas, as herein defined, subject to
the provisions concerning such areas as specified in this Lease.
Section 1.02 Length of Term.
The term of this Lease shall be for ten (10) years following the Rental
Commencement Date as provided hereinafter. Tenant shall have the option to renew
this Lease for an additional term of ten (10) years and, if exercised, an
additional option to renew this Lease for another term of ten (10) years, each
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such option exercisable by Tenant giving Landlord written notice of its intent
to renew at least nine (9) months prior to expiration of the then current term;
provided, however, that Tenant shall not then be in default nor previously have
been in default hereunder.
Section 1.03 Commencement of Rent and Term.
The term of this Lease ("Term Commencement Date") shall commence on the
date hereof. The commencement of Tenant's obligation to pay rent ("Rental
Commencement Date") shall occur on the earlier of the following dates: (a) the
date that a certificate of occupancy has been issued for the Leased Premises and
Landlord's Work (as defined below) is completed (excluding purchase items), but
specifically excluding the installation of any medical or related equipment of
Tenant, which shall be Tenant's sole responsibility, or (b) the date upon which
Tenant commences the operation of its business within the Leased Premises. Under
no circumstances, however, may Tenant enter into possession of the Leased
Premises prior to receipt by Tenant from Landlord of the notice that the Leased
Premises are ready for occupancy or otherwise upon the express written consent
of Landlord and subject to any terms of such consent, except as permitted by
Section 1.04(d) below. If the Rental Commencement Date occurs on a day other
than the first day of a month, the Tenant shall pay rent for the fractional
month between the Rental Commencement Date and the first day of the following
month, on a per diem basis (calculated on the basis of a thirty day month),
payable on the Rental Commencement Date. Any rent payment hereunder for any
other fractional month shall likewise be calculated and paid on such per diem
basis.
Section 1.04 Construction of Improvements; Time of Performance.
(a) Landlord agrees that, promptly after its receipt of plans and
specifications from Tenant's architect for Tenant's leasehold improvements,
Landlord will (i) notify Tenant in writing of any objections to such plans and
specifications, and (ii) taking such objections into account, submit to Tenant a
written guaranteed maximum price bid for the general construction contract with
a fixed date of completion for all work covered thereby, together with a
critical path therefor. Tenant shall have the right to solicit bids from third
party general contractors and accept same if it so desires, subject to
Landlord's reasonable approval as to the creditworthiness and reputation of the
contractor selected. In the event that Tenant obtains a more favorable bid from
a third party contractor, Landlord agrees to use its best efforts to meet such
bid if desired by Tenant; provided, however, that if Landlord is unable to do so
and Landlord and Tenant cannot agree upon a satisfactory compromise, and Tenant
still desire to have Landlord perform the work, Landlord agrees that it will
meet the completion date for the improvements determined to be reasonable,
without the need
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for payment of overtime charges, by an independent third party contractor or
architect mutually selected by Landlord and Tenant; provided that such
completion date shall in no event be later than that set forth in Landlord's
original bid. Landlord shall not, however, be required to change the amount of
its bid from that originally submitted.
(b) Anything in this Lease to the contrary notwithstanding, the
Landlord shall not be deemed in default with respect to failure to perform any
of the terms, covenants and conditions of this Lease if such failure to perform
shall be due to any cause beyond the control of the Landlord, including without
limitation acts of God, governmental delays or moratoriums, strikes,
unavailability of materials or shipment delays or delays by Tenant's architects.
Any delay resuLting from any cause beyond Landlord's reasonable control shall
correspondingly extend the time of performance by Landlord. Tenant agrees that
it will, promptly after execution hereof, provide its architect all necessary
information to prepare the final plans and use its best efforts to expedite
delivery of its proposed plans to Landlord for its review and approval. Further,
Tenant shall make its equipment selections and other decisions (including those
regarding interior finish and color) on a timely basis so as not to hinder the
progress of the leasehold improvements.
(c) In the event that Tenant selects a third party to perform the
leasehold improvements constituting Landlord's Work (as defined below), Landlord
shall, within ten (10) business days after notification of such selection,
deposit the Allowance (as defined below) in an escrow account with an escrow
agent mutually agreeable to Landlord and Tenant. Disbursements shall be made
from the escrow fund in accordance with draw requests jointly signed by Landlord
and Tenant and accompanied by appropriate partial releases. Draws shall be made
no more frequently than monthly, shall be made on the basis of work in place and
materials properly stored on site (except specially ordered items), and shall be
subject to 10% retainage.
(d) Tenant, its employees and agents shall have access to the Leased
Premises prior to the Rental Commencement Date for purposes of siting and
installing equipment and training personnel, subject to reasonable limitations
imposed by Landlord and/or the contractor to assure job safety and compliance
with OSHA and other governmental requirements.
ARTICLE II
RENT
Section 2.01 Rent.
(a) The annual rent during the term of this Lease shall be payable by
the Tenant, on a triple net basis in equal monthly
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installments, together with all sales, use or other taxes thereon, on the first
day of each month, in advance, at Landlord's address set forth in the preamble
hereof, or at such other place designated by Landlord, without any prior demand
therefor and without any deduction, holdback or setoff whatsoever (except that,
with respect to punchlist items relating to Landlord's Work and/or Landlord's
repair obligations hereunder, if Landlord fails to perform such work within 30
business days after written notification, Tenant may perform such work directly
and offset the cost thereof against base rental hereunder), and shall be
calculated by multiplying the actual leasable square footage of the Leased
Premises by the following rental rates:
PERIOD RATE
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Lease Year 1 $11.50/SF
Lease Year 2 $13.50/SF
Lease Year 3 $15.50/SF
Lease Year 4 $17.00/SF
Lease Year 5 $17.00/SF
Lease Year 6 $19.00/SF
Lease Year 7 $20.00/SF
Lease Year 8 $21.00/SF
Lease Year 9 $22.50/SF
Lease Year 10 $23.00/SF
(b) For Lease Years during the renewal term(s), Tenant shall pay rent,
on a triple net basis, in accordance with the following: for each Lease Year of
the renewal term(s), the base rent shall be the base rent in effect for the
preceding Lease Year, increased by the CPI Factor (as defined below). For the
Lease Years during the first renewal term, the base rental rate shall be
increased by an amount (the "CPI Factor") equal to the greater of (x) 4%, or (y)
the percentage equal to a fraction, the numerator of which is the Index (as
defined below) for the month immediately preceding the new Lease Year and the
denominator of which is the Index for the month immediately preceding the first
month of the preceding Lease Year, subject to a maximum increase from any one
Lease Year to the next of 7%. For the Lease Years during the second renewal
term, there shall be no minimum or maximum CPI Factor. The term "Index" shall
mean the Consumer Price Index, All Items and Major Group Figures for All Urban
Consumers (CPI-U 1967 = 100), published by the Bureau of Labor Statistics of the
United States Department of Labor (the "Bureau"). If the compilation and/or
publication of the Index shall be transferred to any other department, bureau or
agency of the United States Government, or if the Bureau shall adopt a successor
Index, the Index published by such successor, department, bureau or agency shall
be adopted and used as a standard for computing adjustments in accordance with
the foregoing. In the event no Index is published for the dates in question, (i)
during the first renewal term, the base rent shall be increased by an amount
equal to five and one-half percent
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(5.5%) of the base rent payable with respect to the preceding Lease Year, and
(ii) during the second renewal term, the base rent shall be revised to equal the
then fair market rental as mutually agreed upon by the parties or, if they
cannot agree, as determined by an independent third party mutually agreed upon
by them. If such a third party cannot be agreed upon, each party shall select an
independent third party knowledgeable in commercial real estate leasing, and the
two so selected shall select a third, who alone shall determine the fair market
rental value (or formula to derive same) for the renewal term.
The term "Lease Year" as used herein shall mean consecutive twelve
month periods commencing on the Rent Commencement Date.
Section 2.02 Late Charge.
Any payment of rent or additional rent not received within ten (10)
business days after its stated due date shall bear a late charge of five percent
(5%) of the amount due. After the declaration of an Event of Default by
Landlord, all sums remaining unpaid shall bear interest at the default rate of
eighteen percent (18%) per annum until paid in full.
Section 2.03 Tenant to Bear Proportionate Share of Assessments Center Common
Areas.
(a) Tenant shall pay to Landlord, in addition to all other rent
specified herein, and as additional rent, its Proportionate Share of assessments
made for expenses incurred in operating and maintaining the Center Common Areas,
which assessments shall be hereinafter referred to as the "Center Common Area
Assessments". Tenant's Proportionate Share of Center Common Area Assessments for
all purposes under this Lease shall be calculated by dividing Tenant's square
footage by 106,975 square feet, provided that such latter figure may be
increased or decreased as necessary to reflect the actual total square footage
of all buildings constructed in the Center at final build-out.
(b) For the purpose of this Section, the "Center Common Area
Assessments" means the total cost and expense incurred in owning, operating and
maintaining the Center Common Areas. The items and charges comprising Center
Common Area Assessments shall include, without limitation, costs and expenses
for the following: gardening an landscaping, public liability and property
damage insurance, real property taxes, special improvement assessments, and any
and all other taxes, fees, or impositions by any governmental agency or
authority against the Center Common Areas, repairs, line painting, paving and
resurfacing, lighting, electricity, sewer and water allocable to the Center
Common Areas, sign maintenance, sanitary control, removal of trash, rubbish,
garbage and other refuse from the Center Common Areas (but not from the Leased
Premises), depreciation on and reasonable reserves for machinery and equipment
used in such
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maintenance, janitorial services for the Center Common Areas, service and
maintenance agreements for the Center Common Areas, and any reasonable
management fee for maintenance and operation of the Center. The management
company may be affiliated with Landlord, but in no event shall its fees exceed
those prevailing in the local market.
(c) Landlord shall estimate on an annual basis Tenant's Proportionate
Share of the Center Common Area Assessments and Tenant shall pay one-twelfth
(1/12) thereof monthly in advance, together with each monthly payment of rent.
After the end of each calendar year Landlord shall furnish Tenant a statement of
the actual Center Common Area Assessments, and there shall be an adjustment
between Landlord and Tenant, with payment to or repayment by Landlord, within 30
days after the date of delivery of the statement reflecting such adjustment, as
the case may require, to the end that Landlord shall receive the entire amount
of Tenant's annual share for such period. Tenant covenants and agrees that
Tenant shall remain liable for and shall pay its Proportionate Share of Center
Common Area Assessments in the amounts and times as set forth herein,
notwithstanding any termination of this Lease by reason of any default of
Tenant, subject to mitigation in the event that the Leased Premises are relet.
Section 2.04 Tenant to Bear Proportionate Share of Building Assessments.
(a) Tenant shall pay to Landlord, as further additional rent, Tenant's
Proportionate Share of all Building Assessments, as hereinafter defined. For the
purpose of this Section, the Building Assessments shall mean the total cost and
expense incurred in operating and maintaining the Building Common Areas,
excluding any maintenance thereof within the Center Common Area Assessments. The
items and charges comprising the Building Assessments shall include public
liability and property damage insurance, real property taxes, special
improvement assessments, and any and all other taxes, fees or impositions by any
governmental agency or authority imposed against the Building repairs, lighting,
electricity, sewer and water allocable to the Building Common Areas, removal of
trash, rubbish, garbage and other refuse from the Building Common Areas (but not
from the Leased Premises), janitorial services for the Building Common Areas,
service and maintenance agreements for the Building Common Areas, and the cost
of security equipment and personnel, if such equipment and personnel are
employed. Tenant's Proportionate Share of Building Assessments shall be
calculated by dividing Tenant's square footage by the total square footage of
the Building.
(b) Landlord shall estimate on an annual basis Tenant's Proportionate
Share of the Building Assessments and Tenant shall pay one-twelfth (1/12)
thereof monthly and in advance, together
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with each monthly payment of rent. After the end of each calendar year Landlord
shall furnish Tenant a statement of the actual Building Assessments, and there
shall be an adjustment between Landlord and Tenant, with payment to or repayment
by Landlord, within 30 days after the date of delivery of the statement
reflecting such adjustment, as the case may require, to the end that Landlord
shall receive the entire amount of Tenant's annual share for such period. Tenant
covenants and agrees that Tenant shall remain liable for and shall pay its
Proportionate Share of Building Assessments in the amounts and times set forth
herein, notwithstanding any termination of this Lease by any reason of any
default of Tenant, subject to mitigation in the event the Leased Premises are
relet.
Section 2.05 Sales Taxes, Personal Property Taxes.
Tenant shall pay before delinquency all personal property taxes and
assessments on the furniture, fixtures, equipment, and other property of Tenant
located in the Leased Premises and on additions and improvements in the Leased
Premises belonging to Tenant. Tenant shall also pay, as additional rent, all
sales taxes or impositions in lieu thereof assessed by governmental authority
against the annul rent, percentage rent (if applicable), and additional rent,
even though the taxing statute or ordinance may purport to impose such sales tax
against the Landlord. The payment of all sales tax (whether on base rent,
additional rent or otherwise) shall be made by Tenant on a monthly basis,
concurrently with payment of installments of annual rent and shall not be
subject to any other limitation herein.
Section 2.06 Additional Rent.
Any and all sums of money or charges required to be paid by Tenant
under this Lease other than annual rent shall be considered "additional rent"
whether or not the same be so designated and Landlord shall have all rights to
enforce due and timely payment by Tenant of additional rent as are available to
Landlord with regard to annual rent.
ARTICLE III
COMMON AREAS
Section 3.01 Use of Building Common Areas and Center Common Areas.
The use and occupation by Tenant of the Leased Premises shall include
the nonexclusive use, in common with others entitled thereto, of the elevators,
stairways, halls, waiting areas and other areas for the nonexclusive use of
tenants, and agents, employees, customers, patients and invitees of Tenants,
within the Building (hereinafter collectively "Building Common
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Areas") as such Building Common Areas now exist or as may hereafter be
constructed for the benefit of or as a part of the Building, and other
facilities as may be designated from time-to-time by Landlord, subject, however,
to the terms and conditions of this Lease and the rules and regulations for the
use thereof as prescribed from time to time by the Landlord. Additionally, the
use by Tenant of the Leased Premises shall include the nonexclusive use as
aforesaid, of all areas within the exterior boundaries of the Center which are
not building sites or are not now or hereafter held for lease or occupation by
Landlord, its successors or assigns, or used by other persons entitled to
exclusive occupation thereof, including the following as they may from time to
time exist: all automobile parking areas, driveways and entrances and exits
thereto employee parking areas, loading docks, pedestrian sidewalks and ramps,
landscaped areas, retaining walls, exterior stairways, open and enclosed courts,
lakes and ponds, and other areas and improvements for the general use, in
common, by Tenants within the Center (herein collectively called "Center Common
Areas") as such Center Common Areas now exist or as may hereafter be constructed
for the benefit of or as a part of the Center, and other facilities as may be
designed from time to time by the Landlord, subject however to the terms and
conditions of this Lease and to the rules and regulations for the use thereof as
prescribed from time to time by Landlord.
Section 3.02 Control of Center Common Areas.
Tenant acknowledges that the Center Common Areas shall at all times be
subject to the exclusive control and management of Landlord. The Landlord shall
have the right to do and perform such acts in and to the Center Common Areas and
improvements thereon as, in the use of good business judgment, it shall
determine to be advisable with a view to the improvement of the convenience and
use thereof by authorized users of the Center Common Areas. The Landlord shall
have the full right and authority to employ all personnel and to make all
reasonable rules and regulations as it may deem proper, pertaining to the proper
operation and maintenance of the Center Common Area.
The Tenant agrees to cooperate with the Landlord and to permit it to
accomplish any such maintenance, repairs, alterations, additions or
construction. The purpose of the site plan attached hereto as Exhibit "A" is to
show only the approximate location and extent of the Center Common Areas.
Section 3.03 Control of Building Common Areas by Landlord.
All Building Common Areas shall at all times be subject to the
exclusive control and management of Landlord. Landlord shall have the full right
and authority to employ all personnel and to make all reasonable rules and
regulations as Landlord may deem proper, pertaining to the proper operation and
maintenance of the Building Common Areas.
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ARTICLE IV
CONSTRUCTION OF LEASED PREMISES
Section 4.01 Landlord's Work.
Landlord agrees that it will supply, at its sole expense, all work and
materials necessary to deliver the Leased Premises to Tenant in accordance with
plans and specifications prepared by Tenant's architect, which plans and
specifications shall be mutually agreed upon by Landlord and Tenant, as more
particularly described and set forth on Exhibit "C," annexed hereto and made a
part hereof ("Landlord's Work"), provided that (i) Tenant shall supply all plans
and specifications at its sole expense, (ii) Tenant shall be responsible for all
costs of Landlord's Work in excess of $50.00 per actual leasable square foot
(the "Allowance"), and (iii) no medical or related equipment or special fixtures
or any personal or mixed real and personal property of any kind, or installation
of any of the foregoing, shall be deemed or construed to be included in
Landlord's Work, and Tenant shall be solely responsible therefor. Landlord's
contributions toward leasehold improvements required hereby shall be strictly
limited to hard costs of leasehold improvements. Notwithstanding the foregoing,
Tenant may elect to have Landlord's Work performed by a third party contractor
pursuant to Section 1.04 above.
Section 4.02 (a) Tenant's Work.
Tenant agrees to perform all work other than Landlord's Work at its own
cost and expense, as particularly described in Exhibit "D" annexed hereto
("Tenant's Work"), which is necessary to make the Leased Premises conform with
Tenant's plans as approved by Landlord.
(b) Mechanics' Liens.
Nothing contained in this Lease shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability under
the Mechanics' Lien Law of the State of Florida, it being expressly understood
that the Landlord's estate shall not be subject to such liability. Tenant shall
strictly comply with The Mechanics' Lien Law of the State of Florida as set
forth in Florida Statutes, Chapter 713. In the event that a mechanics' claim of
lien is filed against the Property in connection with any work performed by or
on behalf of the Tenant (other than Landlord's Work), the Tenant shall satisfy
such claim, or shall transfer same to security, within ten business (10) days
from the date of filing. In the event that the Tenant fails to satisfy or
transfer such claim within said ten business (10) day period, the Landlord may
do so and thereafter charge the Tenant, as additional rent, all costs incurred
by the Landlord in connection with the satisfaction or
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transfer of such claim, including attorneys' fees. Further, the Tenant agrees to
indemnify, defend and save the Landlord harmless from and against any damage or
loss incurred by the Landlord as a result of any such mechanics' claim of lien.
This Section shall survive the termination of this Lease.
Section 4.03 Landlord Loan for Tenant Improvements.
In the event and to the extent that the costs of Landlord's Work exceed
the Allowance, Landlord agrees that, simultaneously with Tenant's infusion of
40% of such excess into the hard cost of improvements to the Leaned Premises
from its own funds, Landlord shall make a loan to Tenant in an amount equal to
60% of the amount by which the costs of Landlord's Work exceed the Allowance
(the "Loan"), the proceeds of which shall be available solely and only for the
purpose of paying the hard costs of leasehold improvements. No portion of the
Loan proceeds shall be used for medical equipment, furniture or other personal
property or working capital. The Loan shall be repaid in sixty (60) equal
monthly installments, with interest at 10.5% per annum, commencing on the Rental
Commencement Date, subject to automatic acceleration and maturity in the event
of termination of this Lease or any default hereunder. Payments on the Loan
shall not be deemed to constitute additional rent for any purpose hereunder.
Tenant agrees to execute and deliver a promissory note substantially in the form
of Exhibit "C-1" hereto to evidence its obligations with respect to the Loan.
The Loan shall be disbursed in construction draws, each to be made
simultaneously with Tenant's payment of its 40% share of each corresponding draw
request. Interest on the Loan shall accrue only on the amount outstanding from
time to time.
ARTICLE V
CONDUCT OF BUSINESS BY TENANT
Section 5.01 Use of Premises.
Tenant shall occupy the Leased Premises without delay upon commencement
of the term of this Lease, and covenants to continuously conduct the
after-stated business therein. Tenant shall use the Leased Premises solely and
for the exclusive purpose of conducting the business of a cancer treatment
center. Tenant shall not use, permit or suffer the use of the Leased Premises
for any other business or purpose. Tenant shall not sell, display or advertise
any merchandise or service not specifically permitted by this Section. Tenant
further agrees to conduct its business in the Leased Premises under the name of
University Radiotherapy Associates, Ltd. or under any other name or trade name
except such as may include the word "Radiation".
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Section 5.02 Exclusivity.
Landlord shall not lease or approve a sublet of any other premises in
Center the primary purpose of which is to be used for an outpatient radiation
therapy center.
Nothing in this Section, however, shall prevent tenant physicians in
the Center from operating a physician office specializing in cancer treatment,
including the use of such in- office ancillary equipment as such physician may
desire.
ARTICLE VI
SECURITY DEPOSIT
[Intentionally deleted.]
ARTICLE VII
SIGNS AND ALTERATIONS
Section 7.01 Installation by Tenant.
Tenant shall not make or cause to be made any alterations, or install
or cause to be installed any exterior signs, exterior lighting, shades or
awnings or make any changes to the Leased Premises (collectively, "Alterations,"
provided that such term shall not include any items of personal property)
without first obtaining Landlord's written approval and consent, which will not
be withheld unreasonably. Tenant shall present to the Landlord plans and
specifications for work at the time approval is sought.
Section 7.02 Responsibility Regarding Alterations.
All Alterations made by the Tenant, or made by the Landlord on the
Tenant's behalf by agreement under this Lease, shall remain the property of the
Tenant for the term of this Lease, or any extension or renewal hereof. The
Tenant shall at all times maintain fire insurance with extended coverage in the
name of the Landlord and the Tenant, in an amount adequate to cover the cost of
replacement of all Alterations in the event of fire or extended coverage loss.
Tenant shall deliver to the Landlord copies 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. Alterations of Tenant shall not be
removed from the Leased Premises during the term of this Lease without the prior
consent in writing from the Landlord. Upon expiration of this Lease, the Tenant
shall remove all Alterations other than that rose constituting Landlord's Work
or previously approved in writing by Landlord, and restore the Leased Premises,
as provided hereinafter. If the Tenant fails to remove such Alterations and
restore the Leased Premises, then upon the expiration of this Lease, or any
renewal thereof, and
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upon the Tenant's removal from the Leased Premises, all such Alterations shall
become the property of the Landlord and in such event, should Landlord so elect,
Landlord may restore the Leased Premises to its original condition, for which
cost the Tenant shall be responsible and shall pay promptly to Landlord upon
demand. If any of the building materials constituting any part of the Leased
Premises shall be determined to be toxic or radioactive, or otherwise require
disposal in accordance with any environmental codes, Tenant shall bear all costs
of disposal of such materials (but Landlord shall continue to bear all costs of
removal other than disposal). The provisions of this Section shall survive the
termination or expiration of this Lease.
Section 7.03 Signs, Awnings and Canopies.
(a) Tenant will not place or permit to be placed or maintained on any
exterior door, wall or window of the Leased Premises any sign, awning or canopy,
or advertising matter or other thing of any kind, and will not place or maintain
any decoration, letter or advertising matter on the glass of any window or door,
nor will any illuminated sign be placed in the window display area of the Leased
Premises without first obtaining Landlord's written approval and consent, which
may be arbitrarily withheld.
ARTICLE VIII
REPAIRS AND MAINTENANCE OF LEASED PREMISES
Section 8.01 Responsibility of Landlord.
(a) Landlord agrees to repair and maintain in good order and condition,
ordinary wear and tear excepted, the roof, roof drains, outside walls,
foundation is and structural portions (both interior and exterior) of the Leased
Premises. There is explacement of broken plate or window glass (except in case
of accepted from the preceding covenant, however: (i) repair or redamage by fire
or other casualty covered by Landlord's fire and extended coverage insurance
policy); (ii) repair of damage caused by Tenant, its employees, agents,
contractors, customers, licensees or invitees; and (iii) interior repainting and
redecoration. Landlord shall have no obligation to repair until a reasonable
time after the receipt by Landlord of written notice of the need for repairs.
Tenant waives the provision of any law, or any right Tenant may have under
common law, permitting Tenant to make repair at Landlord's expense, except in
the case of emergency or imminent threat of harm to person or property or in the
event Landlord fails to make required repairs within 30 business days after
written notice from Tenant of the need therefor. Such repair and maintenance
obligations of Landlord shall be included in and constitute a portion of
Building Assessments defined herein.
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(b) Except as hereinabove provided in Subsection (a), Landlord shall
not be obligated or required to make any other repairs, and all other portions
of the Leased Premises shall be kept in good repair and condition by Tenant, and
at the end of the term of this Lease, Tenant shall deliver the Leased Premises
to Lessor in good repair and condition, reasonable wear arising from Tenant's
permitted use of the Leased Premises as specified herein excepted.
(c) Landlord will furnish a portable fire extinguisher for the Leased
Premises, to be used solely for the Leased Premises. Tenant agrees that the
extinguisher shall not be removed from the Leased Premises, and shall be
available to the fire inspector at all times as required by local fire
ordinances and kept in a location readily accessible to persons within the
Leased Premises.
(d) Landlord will furnish and install new air conditioning unit(s) for
the Leased Premises as its sole expense if the present unit(s) wear out or
otherwise require replacement, provided that Tenant can demonstrate that it has
complied with its maintenance obligations as set forth in Section 8.02 below.
Section 8.02 Responsibilities of Tenant.
(a) Without limiting the generality of the foregoing Subsection, Tenant
agrees to repair and maintain in good and operational order and condition the
non-structural interior portions of the Leased Premises, including the doors,
windows, plate and window glass, floor coverings, plumbing, heating, air
conditioning, electrical and sewerage system, facilities and appliances. Tenant,
at its sole cost, shall maintain the air conditioning unit(s) and duct(s) for
the Leased Premises in good and operational condition and repair throughout the
term of this Lease. As a part of its air conditioning maintenance obligation,
Tenant shall enter into an annual contract with an air conditioning repair firm,
fully licensed to repair air conditioning units in the State of Florida, which
firm shall regularly service and inspect the air conditioning unit(s), perform
emergency and extraordinary repairs on the air conditioning unit(s) and keep a
detailed record of all air conditioning unit services performed on the Leased
Premises and prepare a yearly service report to be furnished to the Tenant at
the end of each calendar year. Tenant shall furnish to Landlord, at the end of
each calendar year, a copy of said yearly service report. Not later than thirty
(30) days prior to the Rental Commencement Date of this Lease and annually
thereafter, Tenant shall furnish to Landlord a copy of the air conditioning
maintenance contract described above. Tenant shall also furnish proof that the
premium for the maintenance contract has been paid within 30 days after its
payment thereof. Nothing stated hereinabove shall limit Tenant's obligation to
maintain the air condition unit(s) in good condition and repair throughout the
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term of this Lease. In the event that a heating or air conditioning unit shall
service space in addition to the Leased Premises, Tenant shall be obligated to
pay only its proportionate share of all maintenance and repair costs of such
unit and the required maintenance contract thereon. Tenant further agrees that
Landlord may, at its sole option, enter into a master maintenance agreement for
the entire Building or for the entire Center, and if Landlord so elects, the
costs of such agreement shall be included in the Center Common Area Assessments
or Building Assessments, as appropriate.
(b) After the completion of Landlord's Work and installation of the
equipment prior to the Rental Commencement Date, Tenant will not install any
equipment which exceeds the capacity of the utility lines leading into the
Leased Premises or the Building.
(c) Tenant, its employees, or agents, shall not xxxx, drill or in any
way deface any walls, ceilings, partitions, floors, wood, stone, plaster or
drywall or ironwork, other than to hang pictures, diplomas, mirrors or other
lightweight items, without Landlord's written consent.
(d) Tenant shall comply with the requirement of all laws, orders,
ordinances and regulations of all governmental authorities and will not permit
any waste of the Leased Premises or the Building Common Areas or Center Common
Areas to be committed and will take good care of and keep in a neat, clean and
sanitary condition, the Leased Premises at all times.
(e) If Tenant refuses or neglects to repair properly as required
hereunder and to the reasonable satisfaction of Landlord as soon as reasonably
possible after written demand, Landlord may make such repairs without liability
to Tenant for any loss or damage that may occur to Tenant's merchandise,
fixtures, or other property, or to Tenant's business by reason thereof, and upon
completion thereof. Tenant shall pay as additional rent Landlord's cost for
making such repairs (including reasonable overhead), upon presentation of a xxxx
therefor. Said xxxx shall include interest at fifteen (15%) percent on said cost
from the date of completion of repairs by Landlord. In the event that Landlord
shall undertake any maintenance or repair in the course of which it shall be
determined that such maintenance or repair work was made necessary by the
negligence or willful act of Tenant or any of its employees or agents or that
the maintenance or repair is, under the terms of this Lease, the responsibility
of Tenant, Tenant shall pay Landlord's costs therefor plus overhead and interest
as above provided in this Section.
(f) Tenant shall give Landlord prompt written notice of any accident,
fire or damage occurring on or to the Leased Premises, and of any lawsuits filed
against Tenant with regard to same.
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(g) Neither Landlord nor Landlord's agents or servants shall be liable
for any damages caused by fire, rain, wind or other cause beyond Landlord's
control, other than damages resulting from Landlord's failure to timely meet its
repair obligations under Section 8.01(a) above.
(h) All property belonging to Tenant or any occupant of the Leased
Premises or the Building shall be there at the risk of Tenant or such other
person only, and Landlord shall not be liable for damage thereto or theft or
misappropriation thereof.
(i) At the expiration of the tenancy hereby created, Tenant shall
surrender the Leased Premises in the same condition as the Leased Premises were
in upon delivery of possession thereof to the Tenant under this Lease,
reasonable wear arising from Tenant's permitted use of the Leased Premises as
specified herein excepted, and shall surrender all keys for the Leased Premises
to Landlord.
ARTICLE IX
INSURANCE AND INDEMNITY
Section 9.01 Liability Insurance.
Tenant shall, during the entire term hereof, keep in full force and
effect bodily injury and public liability insurance in an amount not less than
FIVE HUNDRED THOUSAND DOLLARS ($500,000)/ONE MILLION DOLLARS ($1,000,000) per
injury and accident, respectively; property damage insurance in an amount not
less than ONE HUNDRED THOUSAND DOLLARS ($100,000); and worker's compensation
insurance in the maximum amount permitted under Florida law. Landlord may
require such insurance coverage to be increased after the first five years of
the term of this Lease, provided that such increase shall not cause the required
limits of coverage to exceed those then commonly prevailing in the marketplace
for similar situations. The policy(s) shall name Landlord, any person, firms or
corporations designated by Landlord, and Tenant as insured, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving the Landlord thirty business (30) days prior written notice. The
insurance shall be in an insurance company licensed by the State of Florida and
a copy of the policy or a certificate of insurance shall be delivered to
Landlord prior to the commencement of the term of this Lease. In no event shall
the limits of said insurance policies be considered as limiting the liability of
Tenant under this Lease. In the event that Tenant shall fail to obtain or
maintain in full force and effect any insurance coverage required to be obtained
by Tenant under this Lease, Landlord may procure came from such insurance
carriers as Landlord may deem proper, irrespective that a lesser premium for
such insurance coverage may have been obtained from another insurance carrier,
and Tenant shall pay as additional rent, upon
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demand of Landlord, any and all premiums, costs, charges and expenses incurred
or expended by Landlord in obtaining such insurance. Notwithstanding the
foregoing sentence, in the event Landlord shall procure insurance coverage
required of Tenant hereunder, Landlord shall in no manner be liable to Tenant
for any insufficiency or failure of coverage with regard to such insurance or
any loss to Tenant occasioned thereby, and additionally, the procurement of such
insurance by Landlord shall not relieve Tenant of its obligations under this
Lease to maintain insurance coverage in the types and amounts herein specified,
and Tenant shall nevertheless hold Landlord harmless from any loss or damage
incurred or suffered by Landlord from Tenant's failure to maintain such
insurance.
Section 9.02 Plate Glass Insurance.
The replacement of any plate glass damaged or broken from any cause
whatsoever in and about the Leased Premises shall be Tenant's responsibility.
Tenant shall, during the entire term hereof, keep in full force and effect a
policy of plate glass amounts satisfactory to Landlord. The policy shall name
insurance covering all the plate glass of the Leased Premises, Landlord as
additional insured and shall contain a clause that the insurer will not cancel
or change the insurance without first giving the Landlord thirty business (30)
days prior written notice. A copy of the policy together with the declarations
page therefore shall be delivered to Landlord prior to the commencement of the
term of this Lease.
Section 9.03 Increase in Fire Insurance Premium.
Tenant agrees that it will not keep, use or sell in or upon the Leased
Premises any article, machinery or equipment which may be prohibited by the
standard form of fire and extended risk insurance policy. Tenant agrees to pay
any increase in premiums for fire and extended coverage insurance that may be
charged during the term of this Lease on the amount of such insurance which may
be carried by Landlord on the Leased Premises or the building of which it is a
part, resulting from the type of merchandise, machinery or equipment sold or
kept by Tenant in the Leased Premises or resulting from Tenant's use of the
Leased Premises, whether or not Landlord has consented to the same.
Section 9.04 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 Leased
Premises, or the occupancy or use by Tenant of the Leased Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Tenant, its
agents, contractors, employees, servants, lessees
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or concessionaires. Landlord shall indemnify, defend and save Tenant harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or destruction of
property arising from or out of any occurrence in, upon or at the Leased
Premises or in the Center occasioned in whole or in part by any negligent act or
omission by Landlord, its agents, contractors, employees, servants or
concessionaires. In case the indemnified party shall be made a party to any
litigation commenced by or against the indemnifying 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 indemnifying party shall also pay all
costs, expenses and reasonable attorney's fees that may be incurred or paid by
the indemnified party in enforcing the covenants and agreements in this Lease.
ARTICLE X
UTILITIES
Section 10.01
Tenant shall be solely responsible for and shall promptly pay all
charges for water, gas, electricity or any other utility used or consumed in the
Leased Premises. In the event that such utilities charges, or any portion
thereof, shall be separately metered for the Leased 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 Leased Premises, Tenant shall pay to Landlord
its pro rata share of such nonmetered charges, which pro rata share shall be
equal to Tenant's Proportionate Share of Building Assessments. 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 Leased
Premises.
ARTICLE XI
SUBORDINATION AND ATTORNMENT
Section 11.01 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 Property, the Center, and Building of which the Leased Premises is a
part, and
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to all advances made or hereafter to be made upon the security thereof. This
Section shall be self-operative and no further instrument of subordination shall
be required by any mortgagee, but Tenant agrees upon request of Landlord, from
time to time, to promptly execute and deliver any and all documents evidencing
such subordination, and failure to do so shall constitute a default under this
Lease.
Section 11.02 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
Leased 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, provided that
no such attornment shall act or be construed as a waiver of any default by
Landlord or its successors, and any such successors shall take subject to
Tenant's claims hereunder.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
Section 12.01 Consent Required.
Tenant may not assign this Lease in whole or in part, nor sublet all or
any portion of the Leased Premises, without the prior written consent of
Landlord in each instance. The consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment or subletting. It is understood that Landlord may
refuse to grant consent to any assignment or subletting by Tenant with or
without cause and without stating in its refusal to grant such consent the
reasons for which it refuses to grant such consent and may not, under any
circumstances, be required or compelled to grant such consent, except that
Landlord agrees not to withhold its consent to any assignment where the
assignee's use of the Leased Premises will not change and such assignee's
business reputation and credit strength are, in Landlord's reasonable opinion,
at least as good as those of Tenant. No assignment, underletting, occupancy or
collection shall be deemed acceptance of the assignee, subtenant or occupant as
Tenant, or a release of Tenant from the further performance by Tenant of the
covenants on the part of Tenant herein contained. This prohibition against
assignment or subletting shall be construed to include prohibition against any
assignment or subleasing by operation of law, legal process, receivership,
bankruptcy or otherwise, whether voluntary or involuntary and a prohibition
against any encumbrance of all and any part of Tenant's leasehold interest.
Tenant shall remain fully liable on this Lease and shall not be released from
performing any of the terms, covenants
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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 Leased Premises, the Building and the Property, 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.
Section 12.02 Significant Change of Ownership.
Tenant represents that the ownership and power to bind it belongs to
and is vested in the corporate general partners executing this Lease, and that
the ownership and power to vote a majority of each such general partner's
capital stock is vested in the officer or officer executing this Lease or
members of his or their immediate family. If there shall occur any change in the
ownership of, and/or power to vote, the majority of the outstanding capital
stock of either general partner of Tenant, whether such change of ownership is
by sale, assignment, bequest, inheritance, operation of law or otherwise,
without the prior written consent of Landlord (which will not be withheld
unreasonably), then Landlord shall have the option to terminate this Lease upon
thirty (30) days' notice to Tenant. Notwithstanding the restrictions on transfer
or assignment contained in this Article XII, nothing in this Lease shall
restrict the sale, assignment or other transfer of substantially all of the
assets of Tenant, including this Lease, to either of the General Partners.
ARTICLE XIII
WASTE, GOVERNMENTAL REGULATIONS
Section 13.01 Waste or Nuisance.
Tenant shall not commit or suffer to be committed any waste upon the
Leased Premises, Building Common Areas or Center Common Areas, or any nuisance
or other act or thing which may disturb the quiet enjoyment of any other tenant
in the Building or Center, or which may adversely affect Landlord's fee interest
in the Leased Premises or in the Building.
Section 13.02 Governmental Regulations.
Tenant shall, at Tenant's sole cost and expense, comply with all
regulations of all county, municipal, state, federal and other applicable
governmental authorities, now in force, or which may hereafter be in force,
pertaining to Tenant or its use of the Leased Premises, and shall faithfully
observe in the use of the Leased Premises all municipal and county ordinances
and state and federal statutes now in force or which may hereafter be in force.
Tenant shalt indemnify, defend and save Landlord harmless from penalties, fines,
costs, expenses suits, claims, or damages
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resulting from Tenant's failure to perform its obligations in this Section.
ARTICLE XIV
Section 14.01 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 therefor should ever arise. Notice of
such rules and regulations and amendments and supplements thereto, if any, shall
be given to the Tenant.
ARTICLE XV
DESTRUCTION OF LEASED PREMISES
Section 15.01 Total or Partial Destruction.
If the Leased Premises shall be damaged by fire, the elements,
unavoidable accident or other casualty, without the fault of Tenant, but are not
thereby rendered untenantable in whole or in part, Landlord shall at its own
expense cause such damage, except to Tenant's equipment and trade fixtures, to
be repaired, and the rent and other charges payable by Tenant hereunder shall
not be abated. If by reason of such occurrence, the Leased Premises shall be
rendered untenantable only in part, Landlord shall, subject to the approval of
any mortgagee of Landlord, at its own expense cause the damage, except to
Tenant's equipment and trade' fixtures, to be repaired, and the annual rent
meanwhile shall be abated proportionately as to the portion of the Leased
Premises rendered untenantable. For purposes of this Article XIV, the Leased
Premises shall be considered rendered untenantable in part if and to the extent
Tenant is unable to continue its business therein in the same manner as
conducted immediately prior to such damage or destruction. If the Leased
Premises shall be rendered wholly untenantable by reason of such occurrence, the
Landlord shall, subject to the approval of any mortgagee of Landlord, at its own
expense cause such damage, except to Tenant's equipment and trade fixtures, to
be repaired, and the annual rent meanwhile shall be abated in whole except that
Landlord shall have the right, to be exercised by notice in writing delivered to
Tenant within thirty (30) days after said occurrence, to elect not to
reconstruct the destroyed Leased Premises, and in such event this Lease and the
tenancy hereby created shall cease as of the date of the said occurrence.
Nothing in this Section shall be construed to permit any abatement in whole or
in part in additional rent nor annual rent if such damage is caused by an act or
omission of Tenant.
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Section 15.02 Destruction of Building.
In the event that fifty (50% percent or more of the rentable area of
the Building hall be damaged or destroyed by fire or other cause,
notwithstanding any other provisions contained herein and that the Leased
Premises may be unaffected by such fire or other cause, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within thirty
(30) days after said occurrence, to elect to cancel and terminate this Lease.
Upon the giving of such notice to Tenant, the term of this Lease shall expire by
lapse of time upon the sixtieth day after such notice is given, and Tenant shall
vacate the Leased Premises and surrender the same to Landlord.
Section 15.03 Damage Near End of Term.
If the Leased Premises are destroyed or damaged during the last
eighteen (18) months of the term of this Lease and the estimated cost of repair
exceeds fifty percent (50%) of the annual rent then remaining to be paid by
Tenant for the balance of the term, Landlord may at its option cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to Tenant of its election to do so within sixty (60) days after
the date of occurrence of such damage; provided, however, that if Tenant
notifies Landlord in writing of its irrevocable exercise of its option to renew
this Lease in accordance with the next renewal option (if any) under Section
1.02 hereof, within 15 days after Landlord's notice to Tenant, Landlord's option
and election to cancel and terminate this Lease shall be rendered null and void,
the term shall be extended, and repairs shall be made hereunder. If Landlord
shall not so elect to terminate this Lease, the repair of such damage shall be
governed by this Article.
Section 15.04 Reconstruction of Improvements.
In the event of any reconstruction of the Leased Premises under this
Article, said reconstruction shall be in substantial conformity with the
provisions of Exhibit "C" hereof to the extent of the work as therein set forth
as "Landlord's Work". Tenant, at its sole cost and expense, shall be responsible
for the repair and restoration of all items set forth as "Tenant's Work" in
Exhibit "D" and the replacement of its stock in trade, trade fixtures,
furniture, furnishings and equipment. Tenant shall commence the installation of
fixtures, equipment, and merchandise hereof promptly upon delivery to it of
possession of the Leased Premises and shall diligently prosecute such
installation to completion.
Section 15.05 Termination.
Upon any termination of this Lease under any of the provisions of this
Article, the parties shall be released thereby
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without further obligation to the other party coincident with the surrender of
possession of the Leased Premises to the Landlord except for items which have
theretofore accrued and are then unpaid.
ARTICLE XVI
EMINENT DOMAIN
Section 16.01 Total Condemnation.
If the whole of the Leased Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use of purpose, then the term of
this Lease shall cease and terminate as of the date of title vesting in the
condemning governmental body or other authority pursuant to such proceeding and
all rentals and other charges shall be paid up to that date and Tenant shall
have no claim against Landlord for the value of any unexpired term of this
Lease. A sale by Landlord to any authority having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings are
pending, shall be deemed a taking under the power of eminent domain for all
purposes under this Article.
Section 16.02 Partial Condemnation.
If a part of the Leased Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, and such partial
taking or condemnation shall render the Leased Premises unsuitable for Tenant to
continue its business in substantially the same manner as prior to the partial
taking, then the term of this Lease shall cease and terminate as of the date of
title vesting in the condemning governmental body or other authority pursuant to
such proceeding and Tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease. In the event of a partial taking or
condemnation which is not extensive enough to render the Leased Premises
unsuitable for Tenant to continue its business in substantially the same manner
as prior to the partial taking, then Landlord shall promptly restore the Leased
Premises to a condition comparable to its condition at the time of such
condemnation less the portion lost in the taking, and this Lease shall continue
in full force and effect except that the annual rent and additional rent shall
be reduced in proportion to the portion of the Leased Premises lost in the
taking.
Section 16.03 Damage Awards.
In the event of any condemnation or taking as hereinbefore provided,
whether whole or partial, the Tenant shall not be entitled to any part of the
award, as damages or otherwise, for such condemnation and Landlord is to receive
the full amount of
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such award, except for that portion of the award reasonably attributable to
leasehold improvements paid for by Tenant, Tenant's business interruption and
Tenant's property in the Leased Premises, such allocation to be made, however,
only after Landlord shall have recouped in full its costs to construct and
improve the property taken. The Tenant hereby expressly waives any right or
claim to any part of any such award except as expressly permitted above.
Although all damages in the event of any condemnation are to belong to the
Landlord (except as provided above) whether such damages are awarded as
compensation for diminution in value of the leasehold or the fee of the Leased
Premises, Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures, leasehold improvements and equipment from the Leased
Premises.
ARTICLE XVII
DEFAULT OF TENANT
Section 17.01 Events of Default.
Upon the happening of one or more of the events set forth below in (a)
to (i), inclusive (any of which is referred to hereinafter as an "Event of
Default"), the Landlord shall have any and all rights and remedies hereinafter
set forth:
(a) In the event Tenant should fail to pay any one or more of said
monthly installments of annual rent, percentage rent (if applicable), any other
stuns required to be paid hereunder as additional rent, or any payment with
respect to the Loan, within five business (5) days after Tenant'? receipt of
written notice from Landlord of such failure;
(b) In the event Tenant shall fail to open the Leased Premises for
business within forty-five (45) days after receiving notice from Landlord that
the Leased Premises are ready for occupancy;
(c) In the event a petition in bankruptcy under any present or future
bankruptcy laws (including but not limited to reorganization proceedings) be
filed by or against the Tenant and such petition is not dismissed within thirty
(30) days from the filing thereof, or in the event Tenant is adjudged a
bankrupt;
(d) In the event an assignment for the benefit of creditors is made by
Tenant;
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(e) In the event of an appointment by any court of a receiver or other
court officer of Tenant's property and such receivership is not dismissed within
thirty (30) days from such appointment;
(f) In the event Tenant removes, attempts to remove, or permits to be
removed from the Leased Premises, except in the usual course of trade or
replacement purposes or to allow for a change in the conduct of Tenant's
business, the equipment, machinery, fixtures, furniture, effects or other
property of the Tenant brought thereon and subject to Landlord's statutory lien;
(g) In the event Tenant, before the expiration of the term of this
Lease, and without the written consent of the Landlord, vacates the Leased
Premises or abandons the possession thereof, or uses the same for purposes other
than the purposes for which the same are hereby leased, or ceases to use the
Leases Premises for the purposes herein contained;
(h) In the event an execution or other legal process is levied upon the
goods, furniture, equipment, fixtures, effects or other property of Tenant
brought on the Leased Premises, or upon the interest of Tenant in this Lease,
and the same is not satisfied or dismissed within ten (10) days from such levy;
(i) In the event Tenant fails to maintain the pledge of collateral,
letter of credit or other security for this Lease or the Loan in strict
compliance with the requirements of Section 20.14 below or otherwise breaches
any of the terms of the Collateral Pledge and Assignment Agreement of even date
between Landlord and Tenant; or
(j) In the event Tenant violates any other term, condition covenant,
rules or regulations herein on the part of Tenant to be performed, and fails to
remedy the same within fifteen (15) days after written notice thereof is given
by Landlord to Tenant unless the nature of such default is that it cannot
reasonably be cured within such period, in which case Tenant shall have such
period (in no event to exceed sixty (60) days) as is reasonably necessary to
cure such default, so long as Tenant shall commence curative efforts immediately
upon receipt of notice and diligently pursue same to completion.
Section 17.02 Remedies of Landlord.
(a) If any Event of Default occurs, the Landlord shall have the right,
at the option of Landlord, to terminate this Lease upon sixty (60) days written
notice to Tenant, and to thereupon re-enter and take possession of the Leased
Premises. If any Event of Default occurs, Landlord shall have the right, at its
option, from time to time, without terminating this Lease, to reenter and relet
the Leased Premises, or any part thereof, as the agent and for the account of
Tenant upon such terms and
- 27 -
28
conditions as Landlord may deem advisable or satisfactory, in which event the
rents received on such reletting shall be applied first to the expenses of such
reletting and collection including but not limited to, necessary renovation and
alterations of the Leased Premises, reasonable attorney's fees, any real estate
commissions paid, and thereafter toward payment of all sums due or to become due
Landlord hereunder, and if a sufficient sum shall not be thus realized or
secured to pay such sums and other charges, (i) at Landlord's option, Tenant
shall pay Landlord any deficiency monthly, notwithstanding Landlord may have
received rental in excess of the rental stipulated in this Lease in previous or
subsequent months, and Landlord may bring an action therefor as such monthly
deficiency shall arise, or (ii) at Landlord's option, the entire deficiency,
which is subject to ascertainment for the remaining term of this Lease, shall be
immediately due and payable by Tenant. Nothing herein, however, shall be
construed to require Landlord to re-enter and relet in any event. The Landlord
shall not, in any event, be required to pay Tenant any surplus of any sums
received by Landlord on a reletting of said Leased Premises in excess of the
rent provided in this Lease.
(b) If any Event of Default occurs, the Landlord shall have the right,
at its option, to declare all rent (or any portion thereof) for the entire
remaining term, and other indebtedness owing by Tenant to Landlord, if any,
immediately due and payable without regard to whether possession of the Leased
Premises shall have been surrendered to or taken by Landlord, and may commence
action immediately thereupon and recover judgment therefor.
(c) If any Event of Default occurs, the Landlord, In addition to other
rights and remedies it may have, shall have the right to remove all or any part
of the Tenant's property from the Leased Premises and any property removed may
be stored in any public warehouse or elsewhere at the cost of, and for the
account of Tenant and the Landlord shall not be responsible for the care or
safekeeping thereof whether in transport, storage or otherwise, and the Tenant
hereby waives any and all claim against Landlord for loss. destruction and/or
damage or injury which may be occasioned by any of the aforesaid acts.
(d) No such re-entry or taking possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention is given to Tenant.
Notwithstanding any such reletting without termination, Landlord may at all
times thereafter elect to terminate this Lease for such previous default. Any
such re-entry shall be allowed by Tenant without hindrance, and Landlord shall
not be liable in damages for any such reentry, or guilty of trespass or forcible
entry.
(e) Any rent which may be due Landlord, whether by acceleration or
otherwise, as herein provided in this Article,
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29
shall include annual rent and any other rents, costs and expenses denominated as
additional rent in this Lease.
(f) In the event Tenant remains in possession of the Leased Premises
after the expiration of the tenancy created hereunder, and without the execution
of a new Lease, Tenant, at the option of Landlord, shall be deemed to be
occupying the Leased Premise as a tenant at sufferance at n monthly rental equal
to two (2) times the annual rent payable during the last month of the lease
term. In addition to the annual rent, Tenant shall pay, without diminution, all
percentage rent (if any) and other additional rent, as required by this Lease,
and such tenancy shall be subject to all the other conditions, provisions and
obligations of this Lease.
(g) It is expressly agreed that the forbearance on the part of the
Landlord in the institution of any suit or entry of judgment for any part of the
rent herein reserved to the Landlord, including but not limited to any
unliquidated percentage rent then due, shall in no wise serve as a defense
against nor prejudice a subsequent action for such rent. The Tenant hereby
expressly waives Tenant's right to claim a merger or waiver of such subsequent
action In any previous suit or in the judgment entered therein. Furthermore, it
is expressly agreed that claims for liquidated annual rent and those for any
unliquidated percentage rent (if any) may be regarded by the Landlord, if it so
elects, as separate and independent claims capable of being separately assigned.
(h) Any and all rights, remedies and options given in this Lease to
Landlord shall be cumulative and in addition to and without waiver of, or in
derogation of, any right or remedy given to it under any law now or hereafter in
effect.
Section 17.03 Waiver.
The waiver by Landlord of any default of any term, condition or
covenant herein contained shall not be a waiver of such term, condition or
covenant, or any subsequent default of the same or any other term, condition or
covenant herein contained. The consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent to or approval of any subsequent
similar act by Tenant. The receipt of rent after default or condition broken, or
delay on the part of Landlord to enforce any right hereunder, shall not be
deemed a waiver of any preceding default by Tenant of any term, covenant or
condition of this Lease, or a waiver of the right of of Landlord to annul this
Lease or to re-enter the Leased Premises or to relet same.
- 29 -
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Section 17.04 Legal Expenses.
In the event that it shall become necessary for either party to employ
the services of an attorney to interpret or enforce any of its rights under this
Lease or to collect any sums due to it under this Lease or to remedy the breach
of any covenant of this Lease on the part of the other party to be kept or
performed, regardless of whether suit be brought, the losing party shall pay to
the prevailing party such reasonable fee as shall be charged by the prevailing
party's attorney for such services. Should suit be brought for the recovery of
possession of the Leased Premises, or for rent or any other sum due Landlord
under this Lease, or be either party because of the default of any covenants
under this Lease, the losing party shall pay to the prevailing party all costs
and expenses of such suit and any appeal thereof or post-judgment proceedings in
connection therewith, including a reasonable attorney's fee.
ARTICLE XVIII
ACCESS BY LANDLORD
Section 16.01 Right of Entry.
Landlord and Landlord's agents shall have the right to enter the Leased
Premises at all reasonable times to examine the same, and to show them to
prospective purchasers, mortgagees or tenants 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
the Leased Premises that may be required therefor without the same constituting
an eviction of Tenant in whole or in part, and the rent reserved shall in no
manner xxxxx while said repairs, alterations, improvements, or additions are
being made unless Tenant is prevented from operating in the Leased Premises in
whole~or in part, in which event annual rent shall be proportionately abated
during said period. Notwithstanding the foregoing, Landlord shall use its best
efforts not to interfere with Tenant's conduct of business at the Leased
Premises. If Tenant shall not be personally present to open and permit entry
into the Leased Premises, at any time, when for any reason an entry therein
shall be necessary to address an emergency situation, Landlord or Landlord's
agents may enter the same without in any manner affecting the obligations and
covenants of this Lease.
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ARTICLE XIX
LANDLORD'S COVENANT
Section 19.01 Quiet Enjoyment.
Upon payment by the Tenant of the rents and other charges herein
provided, and upon the observance and performance of all the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased 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.
Section 19.02 Zoning; Soil Bearing.
Landlord represents, warrants and covenants to and with Tenant that,
under present laws and regulations, the use of the Leased Premises as an
outpatient cancer treatment center is permitted by all applicable zoning codes
and ordinances. Landlord further represents, warrants and covenants that the
site can bear the load of the contemplated improvements or, if it cannot,
Landlord will provide sufficient load bearing capacity at its sole cost and
expense.
ARTICLE XX
MISCELLANEOUS
Section 20.01 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.
Section 20.02 Entire Agreement.
This lease and the Exhibits attached hereto and forming a part thereof
as if fully set forth herein, constitute all covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Leased
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 Leased Premises or the Building except
as herein expressly set forth, and all representations, either oral or written,
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32
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.
Section 20.03 Notices.
(a) 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.
(b) 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 Leased Premises or at such other address as Tenant shall
designate by written notice, or by delivery by Landlord to the Leased Premises
or to such other address. Prior to the commencement of the term hereof such
notice may be given by Landlord by such mail or by delivery at the following
address:
University Radiotherapy Associates, Ltd.
Suite 316, New Town Corporate Center
0000 Xxxxx Xxxxx Xxxx 0
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxx
(c) 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.
Section 20.04 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 assignee 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
- 32 -
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(unless same would adversely affect Tenant's rights hereunder) and, in the event
Landlord sells its interest in the Building and the purchaser assumes Landlord's
obligations and covenants, Landlord shall thereupon be relieved of all further
obligations hereunder.
Section 20.05 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.
Section 20.06 Brokers 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 Leased Premises, other than CMA Marketing, Inc., and the commission
to said broker shall be borne by Landlord. 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
other than CMA Marketing, Inc. Such indemnity of Tenant shall include, without
limitation, all of attorneys' fees incurred in connection therewith.
Section 20.07 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.
Section 20.08 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 designata, 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
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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
Tenants 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 Leased 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 and 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 provisions 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.
Section 20.09 Submission to Condominium.
Tenant acknowledges and agrees that the Building may at any time during
the term hereof be submitted to condominium ownership, and that such submission
shall not constitute a default of Landlord under this Lease or in any manner
release Tenant from any payment or obligation under this Lease. Tenant further
agrees to accept performance of all or certain of the duties of Landlord herein
by the condominium association having jurisdiction of the Building, and to abide
by all restrictions, limitations and conditions imposed by such condominium
association or the articles of incorporation, by-laws, or rules and regulations
thereof; provided however, that the Leased Premises shall at all times during
the term hereof be usable for the permitted uses of Tenant hereunder and upon
the terms and conditions set forth herein.
Section 20.10 Recording.
Tenant shall not record this Lease, or any memorandum or short form
thereof, without the written consent and joinder of Landlord.
Section 20.11 Liability of Landlord.
Tenant shall look solely to the estate and property of the Landlord in
the Building for the collection of any judgment, or in connection with any other
judicial process, requiring the
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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.
Section 20.12 Arbitration.
The parties hereto agree to submit any disputes arising hereunder to
binding arbitration in Florida, by a single arbitrator mutually selected by
Landlord and Tenant, absent agreement, by a single arbitrator selected by
agreement of two independent parties, one chosen by Landlord and the other
chosen by The Florida Arbitration Code shall govern all such proceedings.
Section 20.13 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.
Section 20.14 Lease Guarantee and Construction Loan Guarantee.
(a) LEASE GUARANTEE. Simultaneously with the execution and delivery
hereof, Tenant shall pledge and deliver to Landlord collateral to secure its
obligations hereunder in an amount not less than $250,000 pursuant to a
Collateral Pledge and Assignment Agreement in the form of Exhibit "E" hereto.
Landlord agrees that collateral comprised of personal recourse investor notes
from the limited partners of the Tenant shall be an acceptable form of
collateral so long as the form and substance of such notes are substantially as
set forth in Exhibit "F" hereto. Tenant shall further have the right to replace
any collateral delivered hereunder with substitute collateral (such as a letter
of credit, certificates of deposit or the like) in form, and from a source,
acceptable to Landlord in its discretion. The lease guarantee shall be
maintained throughout the term of this Lease, and Tenant acknowledges and agrees
that any failure to maintain the collateral required hereby in strict accordance
with the provisions hereof and of the Collateral Pledge and Assignment Agreement
shall, at the option of Landlord, constitute an event of default hereunder.
(b) CONSTRUCTION LOAN GUARANTEE. Simultaneously with the execution and
delivery of a construction agreement for improvement of the Leased Premises,
Tenant shall pledge and deliver to Landlord additional collateral of the same
type or types as described in the preceding subparagraph (a) in an amount equal
to the principal amount of the Loan as finally established in accordance with
the provisions of Section 4.03 above. The
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amount of collateral pledged pursuant to this subparagraph (b) shall be
decreased during the term of the Lease as Loan repayments are made, such that
the principal amount of such collateral remains equal to the outstanding
principal amount of the Loan.
Section 20.15 Joint and Several Liability.
In the event that more than one person or entity shall execute this
Lease as "Tenant", each such party expressly agrees that its liabilities and
obligations hereunder shall be joint and several.
Section 20.16 Not an Offer.
This Lease shall not be binding on Landlord for any purpose or in any
way until executed by Landlord, nor shall it constitute an offer from Landlord
to Tenant; rather, upon execution by Tenant, this Lease shall constitute an open
offer by Tenant to Landlord acceptable only by Landlord's execution and delivery
of a fully signed Lease to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, or
have caused the same to be executed as of the day and year first above written.
LANDLORD:
Signed, sealed and delivered
in the presence of: XXXXXXXXX AND XXXXXX
ASSOCIATES LIMITED
PARTNERSHIP, a Florida Limited
Partnership
/s/ By: /s/ Xxxxx Xxxx Xxxxxx
------------------------------ ---------------------------------
Xxxxx Xxxx Xxxxxx,
Managing Partner
------------------------------
(As to Landlord)
- 36 -
37
TENANT:
UNIVERSITY RADIOTHERAPY
ASSOCIATES, LTD., a Florida
Limited Partnership
By: CTI of West Broward, Inc.,
General Partner
/s/ By: /s/ Xxxxxxx X. Xxxxx
------------------------------- --------------------------
/s/ Its: President
------------------------------- -------------------------
(As to Tenant)
By: West Broward Oncology
Services, Inc., a Florida
corporation, General
Partner
/s/ By: /s/
------------------------------- ---------------------------
/s/ Its: President
------------------------------- -------------------------
(As to Tenant)
-37-
38
FIRST ADDENDUM TO STANDARD LEASE AGREEMENT
DATED AS OF NOVEMBER 28, 1989
BETWEEN
XXXXXXXXX AND XXXXXX ASSOCIATES LIMITED PARTNERSHIP ("Landlord")
AND
UNIVERSITY RADIOTHERAPY ASSOCIATES, LTD. ("Tenant")
THIS FIRST ADDENDUM is made and entered into as of the 25th day of May,
1990 between Landlord and Tenant for purposes of modifying and amending the
above-referenced lease (the "Original Lease" hereinafter, the Original Lease as
modified and amended by this First Addendum, shall be referred to as the
"Lease").
1. All initially capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Lease.
2. Section 1.04(c) of the Original Lease is hereby modified and amended
to delete the existing provisions in their entirety, and substitute the
following subsection (c) in lieu thereof:
(c) Landlord shall, within twenty (20) days after its receipt of a draw
request jointly signed by Tenant and its general contractor and
accompanied by appropriate partial releases, fund such draw requests by
cashier's check payable to such payee as Tenant may direct.
Notwithstanding the forgoing, (i) aggregate disbursements funded by
Landlord shall in no event exceed the Allowance, (ii) draw requests
shall be submitted no more frequently than monthly, (iii) draw requests
shall be made on the basis of work in place and materials properly
stored on site (except specially ordered items), and (iv) draw requests
shall be subject to ten percent retainage. In the event of any failure
by Landlord to fund any draw request properly presented hereunder
within the time frame required (time being of the essence hereof),
Tenant may demand that Landlord, within five (5) business days after
receipt of such demand, deposit the remaining balance of the Allowance
in an escrow account with Tenant's attorney, from which all future
disbursements shall be made in accordance with draw requests jointly
signed by Landlord and Tenant and accompanied by appropriate partial
releases. Landlord shall bear all fees and expenses of establishing and
maintaining such escrow. Draws from any such escrow account shall
further be subject to the provisions set forth in clauses (i) through
(iv), inclusive, above. In the event that Landlord fails to honor
Tenant's demand to deposit the balance of the Allowance into the escrow
account within the time frame required (time being of the essence as to
this provision), Tenant shall have the right and option to terminate
the Lease immediately with no further obligations on its part and/or to
pursue such other remedies as may be available under the Lease, at law
or in equity.
39
3. Tenant hereby agrees to release Landlord from any and all
obligations to make the Loan described in Section 4.03 of the Lease.
Consequently Landlord and Tenant agree that said Section 4.03 is hereby declared
null and void and deleted in its entirety.
4. Except as expressly modified and amended by the provisions of this
First Addendum, all terms and provisions of the Original Lease shall remain in
full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First Addendum
to be duly executed as of the day and year first above written.
LANDLORD:
XXXXXXXXX AND BOINIS ASSOCIATES
LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
Managing General Partner
TENANT:
UNIVERSITY RADIOTHERAPY ASSOCIATES,
LTD., a Florida limited partnership
By: CTI of Broward, Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Its: President
------------------------------
By: West Broward Oncology Services,
Inc., General Partner
By: /s/
------------------------------------
Its:
-----------------------------------
40
ASSIGNMENT OF LEASE
THIS AGREEMENT (this "Agreement") is made and entered into as of August
26, 1994, by and between XXXXXXXXX AND BOINIS ASSOCIATES LIMITED PARTNERSHIP, a
Florida limited partnership, now known as BOINIS ASSOCIATES, LTD. ("Lessor"),
CTI OF WEST BROWARD, INC., a Florida corporation, successor to University
Radiotherapy Associates, Ltd. ("Assignor"), and CORAL SPRINGS RADIATION THERAPY
REGIONAL CENTER, INC., a Florida corporation ("Assignee").
BACKGROUND FACTS
A. Assignor is the tenant and Lessor is the landlord pursuant to that
certain Lease Agreement dated November 28, 1989 (as amended, the "Lease"),
relating to suite number 101 (the "Premises") within building number 2101 within
a project commonly known as "The Center For Medical Arts" located at Riverside
Drive in Coral springs, Florida. Assignor's obligations have been partially
secured by certain promissory notes (collectively, the "Notes") delivered by
certain individuals (collectively, the "Makers") on Assignor's behalf.
B. Assignor desires to assign the tenant's interest under the Lease to
Assignee and Assignee desires to assume and be bound by the terms and conditions
of the Lease.
C. Assignor and Assignee desire that Lessor consent to the assignment
of the Lease pursuant to the terms and conditions of this Agreement.
TERMS AND CONDITIONS
In consideration of the mutual promises and covenants herein contained
and other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. BACKGROUND FACTS. The above Background Facts are true and correct
and made a part of this Agreement.
2. ASSIGNMENT. Assignor hereby assigns, sets over and transfers to
Assignee all of its rights, title and interest as tenant under the Lease.
3. RATIFICATION OF LEASE. All of the terms, covenants and conditions of
the Lease are hereby ratified and reaffirmed by all parties to this Agreement.
4. ACCEPTANCE. Assignee hereby accepts the assignment of the tenant's
interest under the Lease and hereby assumes and agrees to be bound by all of its
terms and conditions, a copy of which has been read, received and reviewed by
Assignee. Assignee further agrees and acknowledges having examined the Premises
and
41
the condition of the Premises and agrees to accept possession of the Premises in
"As-Is" condition.
5. RELEASE OF ASSIGNOR AND MAKERS. In consideration of the payment to
Lessor of the sum of $25,000 simultaneously with the execution hereof, Lessor
hereby releases (i) Assignor and its predecessor, University, from all liability
and obligations under the Lease and (ii) Makers, from all liability and
obligations under the Notes.
6. WAIVER. Assignor, Assignee and Lessor hereby stipulate and agree
that they have no claims or actions against each other under the Lease or
otherwise as of the date hereof, and that, as of the date hereof (except as to
any Lease obligations for periods from and after the date hereof), there is no
default or breach under the Lease on the part of Assignor or Lessor which has
not been waived.
7. LESSOR'S CONSENT. Lessor does hereby consent to the assignment of
the Lease to Assignee. The consent granted hereunder shall not constitute the
agreement of Lessor to consent to any future assignments or transfers of the
Lease nor shall it be deemed to be a waiver of the prohibition contained in the
Lease against assignment or transfer. In the event Lessor executes this
Agreement prior to execution thereof by Assignee and Assignor, it is understood
that Lessor's execution shall not be deemed to be effective until Assignor and
Assignee shall have both executed this Agreement, and Lessor is provided with a
fully executed original on or before 12 noon on August 29, 1994.
8. OTHER CONDITIONS. Assignor and Assignee hereby release Lessor, its
agents, officers, directors, successors, and assigns, of and from any and all
claims whatsoever, in law or in equity, which they have or may have arising
prior to the effective date of this Agreement. Moreover, Assignor hereby
represents to Lessor, as a condition to the effectiveness of the release
provided in Section 5 of this Agreement, that Makers have no rights or claims of
any nature or kind against Lessor, and Assignor hereby indemnifies and holds
Lessor harmless from and against the same, including, but not limited to, all
reasonable attorneys fees and court costs incurred by Lessor in defending
against the same.
9. LETTER OF CREDIT. As a condition to the entry into this Agreement,
Assignee is simultaneously causing the delivery to Lessor of an original,
unconditional and irrevocable Letter of Credit, in form and content satisfactory
to Lessor, in its sole discretion (the "Letter of Credit"), issued by
NationsBank of Florida, N.A. (the "Bank") in the original amount of $300,000,
which shall serve as security for the performance of Assignee's obligations
under the Lease. In the event of any default by Assignee under the Lease beyond
any applicable grace or cure period, Lessor, without further notice to or demand
upon
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Assignee, shall have the right to draw upon all or any portion of the funds
evidenced by the Letter of Credit in amounts representing all or any portion of
amounts then owing to Lessor under the Lease. In the event that (i) Lessor
receives written notice from the Bank that the Letter of Credit shall not be
renewed in the full amount thereof, (ii) there is for any other reason less than
30 days remaining prior to the then expiration date of the Letter of Credit or
(iii) Lessor, in its reasonable judgment, determines that the financial ability
of the Bank to fund under the Letter of Credit is in question, then, and in any
of such events, Lessor shall have the right to draw down the full amount of the
Letter of Credit and hold the proceeds thereof as a cash security deposit by
Assignee under the Lease, with the same rights to draw down upon the same as
were previously enjoyed with respect to the Letter of Credit itself. The Letter
of Credit, or such cash security deposit, or such portions of either as may then
be remaining, shall be returned to Assignee only upon the expiration or earlier
termination of the Lease, but then only after all amounts which are owing or
which could become owing to Lessor under the Lease have been fully paid
therefrom to Lessor. Wherever the term "Letter of Credit" is used above, it
shall be deemed to refer to the original Letter of Credit delivered
simultaneously with the execution of this Agreement and each substitute thereof
(whether substitution occurs on account of renewals, reductions after draws have
been made or otherwise).
10. Miscellaneous. This Agreement represents the entire agreement
between the parties and may only be changed by another instrument, in writing,
executed by the party intended to be bound. This Agreement shall be governed and
interpreted by and in accordance with the laws of the State of Florida. In the
event of any litigation arising out of any of the terms or provisions of this
Agreement, the prevailing party shall be entitled to recover all costs and
reasonable attorneys' fees incurred, including those incurred on any appeal.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Witnesses: LESSOR:
BOINIS ASSOCIATES, LTD., a
Florida limited partnership
/s/ Xxxxx X. Indesco By: /s/ Xxxxx Xxxx Xxxxxx
----------------------------- -------------------------------
Name: Xxxxx Xxxx Xxxxxx
----------------------------
its general partner
-----------------------------
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ASSIGNOR:
CTI OF WEST BROWARD, INC., a
Florida corporation
/s/ Xxxxxx X. Xxx By: /s/ X. Xxxxx
--------------------------- ------------------------------
/s/ G. Xxxxx Xxxxxxxxx Name: X. Xxxxx
--------------------------- ----------------------------
Title: President
---------------------------
ASSIGNEE:
CORAL SPRINGS RADIATION
THERAPY REGIONAL CENTER, INC.,
a Florida corporation
/s/ Xxxxxx X. Xxx By: /s/ X. Xxxxxxx
--------------------------- ------------------------------
/s/ G. Xxxxx Xxxxxxxxx Name: X. Xxxxxxx
--------------------------- ----------------------------
Title: Vice President
---------------------------
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