EXHIBIT 10.9
LEASE
THIS LEASE ("Lease") is made and entered into as of the 1st day of May
2002, by and between, BRADENTON RADIATION ASSOCIATES, a Florida general
partnership ("Landlord"), and 21ST CENTURY ONCOLOGY, INC., a Florida
corporation, ("Tenant").
W I T N E S S E T H:
TERMS
Premises. Landlord hereby demises and leases to Tenant and Tenant
hereby hires and rents from Landlord the Premises upon the terms, covenants and
conditions set forth herein, which Premises has a Floor Area containing the
approximate square footage of 6,882 square feet. The legal description of the
property is attached as Exhibit A.
Use. The Premises are to be used for a medical office and radiation
therapy center.
Commencement of Term. The commencement of the Term of this Lease under
which Tenant shall be obligated to commence payment of Minimum Rent and
Additional Rent shall be the Rent Commencement Date, May 1, 2002.
Length of the Term. The term of this lease period is for ten (10)
years. The starting date of this lease is May 1, 2002 and the ending date is
April 30, 2012.
RENT
Rent. Minimum Rent shall be $19,581.97 per month plus Florida sales
tax. Tenant shall pay to Landlord without previous demand thereof and without
any abatement, reduction, setoff or deduction whatsoever, the Minimum Rent
(together with any applicable sales tax and local taxes if the same are ever
required by law), payable in equal monthly installments, in advance, on the
first day of each and every calendar month throughout the Term of this Lease.
The Minimum Rent shall commence to accrue on the Commencement Date. The first
such monthly installments of Minimum Rent shall be due and payable to Landlord
no later than the Commencement Date and each subsequent monthly installment
shall be due and payable to Landlord on the first day of each and
every month following the Commencement Date during the Term hereof. If the
Commencement Date is a date other than the first day of the month, Minimum Rent
and other charges for the period commencing with and including the Commencement
Date through the first day of the following month shall be prorated at the rate
of one-thirtieth (1/30) of the monthly Minimum Rent per day.
In addition, monthly payments will be made of the real estate taxes,
real estate assessments and insurance on the property. This amount will be of
1/12 of the xxxx for real estate and assessment taxes and 1/12 of the xxxx on
insurance. Estimated figures for taxes and insurance monthly rate will be
produced within ten (10) days after the signing of this Lease. Each year
Landlord will produce any insurance, real estate tax and assessment bills to the
Tenant to show how the estimated taxes and insurance were computed as additional
rent. This will be Additional Rent. Florida sales tax will be paid on the
Additional Rent.
(2a) There will be an increase in the Minimum Rent starting on the
first anniversary of the lease if the Consumer Price Index increases. On May 1,
2003, the minimum rent specified in this lease shall be subject to increase in
accordance with changes in the Consumer Price Index for Urban Wage Earners and
Clerical Workers (CPI-W) as promulgated by the Bureau of Labor Statistics of the
United States Department of Labor, using the year 1998 as a base of 100. On each
anniversary date their will be a rent adjustment based on the percentage
increase in the Consumer Price Index. The minimum will never be less than
$19,581.97. If the Consumer Price Index goes down the rent will not change for
that year. Consumer Price Index increases will apply on the anniversary date of
each year of the lease term or renewal term. The percentage increase in the
Consumer Price Index will increase the minium rent for that year.
(2b) In the event that the Consumer Price Index ceases to incorporate
significant number of items, or if a substantial change is made in the method of
establishing such Consumer Price Index shall be adjusted to the figure that
would have resulted had no change occurred in the manner of computing such
Consumer Price Index, or a successor or substitute index, is not available, a
reliable governmental or other nonpartisan publication, evaluating the
information for use in determining the Consumer Price Index, shall be used in
lieu of such Consumer Price Index.
(3) The annual minium Rent is $234,983.64 for each year, unless changed
by the increase in the Consumer Price Index.
(4) Any increase in the Consumer Price Index after the first year of
the Lease and every year thereafter will be added to the Minimum Rent.
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(5) Real Estate tax and insurance will be included as Additional Rent
each and every month. 1/12 of real estate tax xxxx and assessments and 1/12 per
month of the insurance xxxx will be added as Additional Rent each and every
month. This must also include sales tax.
Late Charge. Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the monthly payment of Minimum Rent, Additional Rent and any
other payment or charge due hereunder if any such amount is received by Landlord
more than five (5) days after the same shall be due, such amount being the
agreed upon liquidated damages solely to defray the additional administrative
expenses incurred by Landlord in processing such payment.
Interest on Past Due Rent. If Tenant shall fail to pay, when the same
is due and payable, Minimum Rent, or Additional Rent, such unpaid amounts shall
bear interest from the due date thereof to the date of payment, at the prime
interest rate of the Chase Manhattan Bank, N.A. as of such due date, plus three
percent (3%) ("Default Date").
Definition of Rent. The term "Rent" shall refer collectively to Minimum
Rent and Additional Rent. The term "Additional Rent" is sometimes used herein to
refer to any and all other sums payable by Tenant hereunder, including, but not
limited to, parking charges and sums payable on account of default by Tenant.
All Rent shall be paid by Tenant without offset, demand or other credit, and
shall be payable only in lawful money of the United States of America which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment. All sums payable by Tenant hereunder by check shall be
obtained against a financial institution located in the United States of
America. The rent shall be paid by Tenant to 0000 Xxxxxxxx Xxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx.
Rent Taxes. In addition to Minimum Rent and Additional Rent, Tenant
shall and hereby agrees to pay to Landlord each month a sum equal to any sales
tax, tax on rentals and any other similar charges now existing or hereafter
imposed, based upon the privilege of leasing the space leased hereunder or based
upon the amount of rent collected therefor.
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NET LEASE
Net Lease. This Lease shall be deemed and construed to be a net Lease
and, except as herein otherwise expressly provided, the Landlord shall receive
the fixed Minimum Rent and Additional Rent and all other payments hereunder to
be made by the Tenant absolutely free from any charges, assessments, imposition,
expenses or deductions of any kind and every kind or nature whatsoever. Tenant
is to pay for all real estate tax and assessments on any and all taxes of any
type of nature. Tenant is to pay for all insurance and any and all costs for
repairs, replacements, maintenance and improvements. Tenant will also pay any
and all expenses for common areas, utilities, and association fees required by
the complex. Tenant will pay for any and all condominium fees required by the
Condominium Association. Tenant also is responsible for:
1) To pay for Parking lot repairs, maintenance and replacements.
2) To pay for and install outside and inside lighting for
parking.
3) To pay for any security, pest control or contrasts for air
conditioner and cleaning services, etc.
OPTION TO RENEW
Option to renew. Provided that Tenant is not, and at no time has been,
in default during the Term under any of the covenants, terms, conditions, and
provisions of this Lease, then Tenant shall have the option to renew this Lease,
for two separate five (5) year option periods, provided that, in order to
exercise this Option to Renew, Tenant is required to give to Landlord written
notice thereof not less than six (6) months before the date of expiration of the
Term of this Lease or during any option period. Any renewal pursuant to this
Option shall be on the same terms and conditions as are contained in this Lease.
INSURANCE AND INDEMNITY
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.
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Landlord may require such insurance coverage to be increased after the first
five years of the term of this Lease, provided that such increase shall not
cause the required limits of coverage to exceed those then commonly prevailing
in the marketplace for similar situations. The policy(s) shall name Landlord,
any person, firms or corporations designated by Landlord, and Tenant as insured,
and shall contain a clause that the insurer will not cancel or change the
insurance without first giving the Landlord twenty (20) days prior notice. The
insurance shall be in an insurance company licensed by the State of 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 same from insurance carriers as
Landlord may deem proper, irrespective that a lesser premium for such insurance
coverage may have been obtained from another insurance carrier, and Tenant shall
pay as additional rent, upon demand of Landlord, any and all premiums, costs,
charges and expenses incurred or expended by Landlord in obtaining such
insurance. Notwithstanding shall procure insurance coverage required of Tenant
hereunder, Landlord shall in no manner be liable to Tenant for any insufficiency
or failure of coverage with regard to such insurance or any loss to Tenant
occasioned thereby, and additionally, the procurement of such insurance by
Landlord shall not relieve Tenant of its obligations under this Lease to
maintain insurance coverage in the types and amounts herein specified, and
Tenant shall nevertheless hold Landlord harmless from any loss or damage
incurred or suffered by Landlord from Tenant's failure to maintain such
insurance.
Plat 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 insurance covering all the plate
glass of the Leased Premises, in amounts satisfactory to Landlord. The policy
shall name Landlord as additional insured and shall contain a clause that the
insurer will not cancel or change the insurance without first giving the
Landlord twenty (20) days prior notice. A copy of the policy together with the
declarations page therefore shall be delivered to Landlord prior to the
commencement of the term of this Lease.
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Increases 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.
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 any part thereof, 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 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 indemnifying party shall be made a party to any
litigation commenced by or against the other party , then such other party shall
protect and hold the indemnified party harmless and pay all costs and attorney's
fees incurred by the indemnified party in connection with such litigation, and
any appeals thereof. The defaulting party shall also pay all costs, expenses and
reasonable attorney's fees that may be incurred or paid by the other party in
enforcing the covenants and agreements in this Lease.
UTILITIES
Utilities. Tenant shall be solely responsible for and shall promptly
pay all charges for water, gas, electricity, garbage, and any other utility used
and consumed in the 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
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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 non-metered
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.
SUBORDINATION AND ATTORNMENT
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 of, and to all advances made or hereafter to be made upon the
security thereof. This Section shall be self-operative and no further instrument
of subordination shall be required by any mortgagee, but Tenant agrees upon
request of Landlord, from time to time, to promptly execute and deliver any and
all documents evidencing such subordination, and failure to do so shall
constitute a default under this Lease.
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.
Financing Agreements. Tenant shall not enter into, execute or deliver
any financing agreement that can be considered as having priority to any
mortgage or deed of trust that Landlord may have placed upon the Leased
Premises.
ASSIGNMENT AND SUBLETTING
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
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Tenant with or without cause and without stating in its refusal to grant such
consent the reasons for which it refuses to grant such consent and may not,
under any circumstances, be required or compelled to grant such consent. No
assignment, under letting, occupancy or collection shall be deemed acceptance of
the assignee, subtenant or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of the covenants on the part of Tenant herein
contained. This prohibition against any assignment or subleasing by operation of
law, legal process, receivership, bankruptcy or otherwise, whether voluntary or
involuntary and a prohibition against any encumbrance of all and any part of
Tenant's leasehold interest. Tenant shall remain fully liable on this Lease and
shall not be released from performing any of the terms, covenants and conditions
hereof or any rents or other sums to be paid hereunder. Tenant acknowledges and
agrees that any and all right and interest of the Landlord in and to the 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.
FACILITIES
Control of Common Areas by Landlord. All automobile parking areas,
driveways, entrances and exits thereto, and other facilities furnished by
Landlord in or near the Center, including employee parking areas, the truck way
or ways, loading docks, package pick-up stations, pedestrian sidewalks and
ramps, landscaped areas, exterior stairways, and other areas and improvements
provided by Landlord for the general use, in common, of tenants, their officers,
agents, employees and customers, shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from time
to time to establish, modify and enforce reasonable rules and regulations with
respect to all facilities and areas mentioned in this Article. Landlord shall
have the right to construct, maintain and operate lighting facilities on all
said areas and improvements; from time to time to change the area, level,
location and arrangement of parking areas and other facilities hereinabove
referred to and to restrict parking by tenants, their officers, agents and
employees to employee parking areas. Landlord shall not have any duty to police
the traffic in the parking areas. There are about_________________parking spaces
available to Tenant. Tenant is to maintain and repair parking and at tenant's
expense.
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TENANT'S FIXTURES AND IMPROVEMENTS
Alterations by Tenant. Tenant shall not make any alterations,
renovations, improvements or other installations (collectively "Alterations")
in, on or to any part of the Premises (including, without limitation, any
alterations of the front, signs, structural alterations, or any cutting or
drilling into any part of the Premises or any securing of any fixture,
apparatus, or equipment of any kind to any part of the Premises) unless and
until Tenant shall have caused plans and specifications therefor to have been
prepared, at Tenant's expense, by an architect or other duly qualified person
and shall have obtained Landlord's approval thereof. Tenant shall submit to
Landlord detailed drawings and plans of the proposed Alterations at the time
Landlord's approval is sought. If such approval is granted, Tenant shall cause
the work described in such plans and specifications to be performed, at its
expense, promptly, efficiently, competently and in a good and workmanlike manner
by duly qualified and licensed persons or entities approved by Landlord, using
first grade materials,. without interference with or disruption to the
operations of tenants or other occupants of the Center. All such work shall
comply with all applicable codes, rules, regulations and ordinances. The Tenant
shall at all times maintain fire insurance with extended coverage in an amount
adequate to cover the cost of replacement of all alterations, decorations,
additions or improvements to the Premises by Tenant in the event of fire or
extended coverage loss. Tenant shall deliver to the Landlord certificates of
such fire insurance policies which shall contain a clause requiring the insurer
to give the Landlord ten (10) days notice of cancellation of such policies.
Mechanic's Liens. No work performed by Tenant pursuant to this Lease,
whether in the nature of erection, construction, alteration or repair, shall be
deemed to be for the immediate use and benefit of Landlord so that no mechanic's
or other lien shall be allowed against the estate of Landlord by reason of any
consent given by Landlord to Tenant to improve the Premises. Tenant shall place
such contractual provisions as Landlord may request in all contracts and
subcontracts for Tenant's improvements assuring Landlord that no mechanic's
liens will be asserted against Landlord's interest in the Premises or the
property of which the Premises are a part. Said contracts and subcontracts shall
provide, among other things, the following: That notwithstanding anything in
said contracts or subcontracts to the contrary, Tenant's contractors,
subcontractors, suppliers and materialmen (hereinafter collectively referred to
as "Contractors") will perform the work and/or furnish the required materials on
the sole credit of Tenant; that no lien for labor or materials will be filed or
claimed by the Contractors against Landlord's interest in the Premises or the
property of which the
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Premises are a part; that the Contractors will immediately discharge any such
lien filed by any of the Contractor's suppliers, laborers, materialmen or
subcontractors; and that the Contractors will indemnify and save Landlord
harmless from any and all costs and expenses, including reasonable attorney's
fees, suffered or incurred as a result of any such lien against Landlord's
interest that may be filed or claimed in connection with or arising out of work
undertaken by the Contractors. Tenant shall pay promptly all persons furnishing
labor or materials with respect to any work performed by Tenant or its
Contractors on or about the Premises. If any mechanic's or other liens shall at
any time be filed against the Premises or the property of which the Premises are
a part by reason of work, labor, services or materials performed of furnished,
or alleged to have been performed or furnished, to Tenant or to anyone holding
the Premises through or under Tenant, and regardless of whether any such lien is
asserted against the interest of Landlord or Tenant, Tenant shall cause the same
to be discharged of record or bonded to the satisfaction of Landlord within
thirty (20) days of notice of such lien. If Tenant shall fail to cause such lien
to be so discharged or bonded after being notified of the filing thereof, then,
in addition to being an Event of Default and any other right or remedy of
Landlord, Landlord may bond or discharge the same by paying the amount claimed
to be due, and the amount so paid by Landlord, including reasonable attorneys'
fees incurred by Landlord either in defending against such lien or in procuring
the bonding or discharge of such lien, together with interest thereon at the
Default Rate, shall be due and payable by Tenant to Landlord as Additional Rent.
Tenant's Leasehold Improvements and Trade Fixtures. All leasehold
improvements as distinguished from trade fixtures and apparatus) installed in
the Premises at any time, whether by or on behalf of Tenant or by or on behalf
of Landlord, shall not be removed from the Premises at any time, unless such
removal is consented to in advance by Landlord; and at the expiration of this
Lease (either on the Expiration Date or upon such earlier termination as
provided in this Lease), all such leasehold improvements shall be deemed to be
part of the Premises, shall not be removed by Tenant when it vacates the
Premises, and title thereto shall vest solely in Landlord without payment of any
nature to Tenant.
All trade fixtures and apparatus (as distinguished from leasehold
improvements) owned by Tenant and installed in the Premises shall remain the
property of Tenant and shall be removable at any time, including upon the
expiration of the Term; provided Tenant shall not at such time be in default of
any terms or covenants of this Lease, and provided further, that Tenant shall
repair any damage to the Premises caused by the removal of said trade fixtures
and apparatus and shall restore the Premises to
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substantially the same condition as existed prior to the installation of said
trade fixtures and apparatus and shall restore the Premises to substantially the
same condition as existed prior to the installation of said trade fixtures and
apparatus.
MAINTENANCE AND REPAIR OF PREMISES
Maintenance by Tenant. Tenant shall at all times keep in good order,
condition and repair (which shall include the providing of replacements where
necessary) the entire Premises, including, without limitation, the roof, the
exterior and all glass and show window moldings; and all partitions, doors,
interior walls, fixtures, equipment and appurtenances thereto, including
lighting, heating and plumbing fixtures and any air conditioning system and
sprinkler system situated within and/or servicing the Premises. Said maintenance
by Tenant shall include, without limitation, periodic painting as is reasonably
necessary. All cutting and patching of the roof area required for any reason
whatsoever shall be performed by the Landlord's roofing subcontractor. In the
event that Tenant causes such work to be performed by anyone other than the
Landlord's roofing subcontractor, Landlord will have the right, at Tenant's sole
cost and expense and without notice to Tenant, to cause said work and the roof
area affected thereby to be inspected and/or repaired by Landlord's roofing
subcontractor. All repairs, replacements, or maintenance of any item or any type
of the Premises is the responsibility of the Tenant and to be paid for by
tenant.
SIGNS
On or before the Commencement Date, Tenant will at its sole cost and
expense purchase and cause to be installed upon the exterior of the Premises a
sign which in all respects conforms to the criteria established by Landlord.
However, Tenant will not install said sign without first obtaining Landlord's
written approval thereof. Thereafter, Tenant will not place or suffer to be
placed or maintain on any portion of the exterior (including windows) of the
Premises any sign, awning, canopy or advertising matter or other thing of any
kind, without first obtaining Landlord's written approval and consent. Without
limitation as to the foregoing, Landlord specifically reserves the right at any
time during the term of this Lease to require Tenant to remove from the Premises
any sign(s) situated thereon and to replace same with a sign or signs which in
all respects conform to a sign standard designated by Landlord, all of which
will be performed at Tenant's sole cost and expense. Tenant agrees to maintain
any such sign, awning, canopy, decoration, lettering, advertising matter or
other thing as may be approved in good condition and repair at all times and to
repaint or replace such signs from time to
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time when reasonably necessary and to illuminate such signs in accordance with
standards established by Landlord from time to time, including hours of
illumination. All signs in addition must be conform to code and local ordinances
rules, laws and regulations
WASTE AND GOVERNMENTAL REGULATIONS
Nuisance or Waste. Tenant shall not commit or suffer to be committed
any waste upon the Premises or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the building in which the
Premises may be located, or in the Center.
Compliance with Laws. Tenant, at its sole cost, will promptly comply
with all applicable laws, guidelines, rules, regulations and requirements,
whether of federal, state, or local origin, applicable to the Premises, and the
Center, including, but not limited to, the Americans with Disabilities Act, 42
U.S.C. Section 12101 et seq, and those for the correction, prevention and
abatement of nuisance, unsafe conditions, or other grievances arising from or
pertaining to the use or occupancy of the Premises or the Center. Tenant at its
sole cost and expense shall be solely responsible for taking any and all
measures which are required to comply with the requirements of the ADA within
the Premises. Any Alterations to the Premises made by or on behalf of Tenant for
the purpose of complying with the ADA or which otherwise require compliance with
the ADA shall be done in accordance with this Lease; provided, that Landlord's
consent to such Alterations shall not constitute either Landlord's assumption,
in whole or in part, of Tenant's responsibility for compliance with the ADA, or
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA.
Governmental Regulations. Tenant shall, at Tenant's sole costs and
expense, comply with all regulations of all county, municipal, state, federal
and other applicable governmental authorities, not in force or which may
hereafter be in force, pertaining to Tenant or its use of the 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
hereinafter be in force. Tenant shall indemnify, defend and save Landlord
harmless from penalties, fines, costs, expenses suits, claims, or damages
resulting from Tenant's failure to perform its obligations in this Section.
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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.
HAZARDOUS MATERIALS
Hazardous Materials. Tenant shall not use or allow the Premises to be
used for the Release, storage, use, treatment, disposal or other handling of any
Hazardous Materials, without the prior consent of Landlord. The term "Release"
shall have the same meaning as is ascribed to it in the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq., as amended, ("CERCLA"). The term "Hazardous Materials" means (i) any
substance defined as a "hazardous substance" under CERCLA, (ii) petroleum,
petroleum products, natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas, and (iii) any other substance or 'material deemed to be
hazardous, dangerous, toxic, or a pollutant under any federal, state, or local
law, code, ordinance or regulation ("Hazardous Materials Laws").
Tenant shall: (a) give prior notice to Landlord of any activity or
operation to be conducted by Tenant at the Premises which involves the Release,
use, handling, generation, treatment, storage, or disposal of any Hazardous
Materials ("Tenant's Hazardous Materials Activity"), (b) comply with all
federal, state, and local laws, codes, 'ordinances, regulations, permits and
licensing conditions governing the Release, discharge, emission, or disposal of
any Hazardous Materials and prescribing methods for or other limitations on
storing, handling, or otherwise managing Hazardous Materials, (c) at its own
expense, promptly contain and remediate any Release of Hazardous Materials
arising from or related to Tenant's Hazardous Materials Activity in the Premises
or the Center and remediate and pay for any resultant damage to property,
persons, and/or the environment, (d) give prompt notice to Landlord, and all
appropriate regulatory, authorities, of any Release of any Hazardous Materials
in the Premises, the Center the Center Common Area arising from or related to,
Tenant's Hazardous Materials Activity, which Release is not made pursuant to and
in conformance with the terms of any permit or license duly issued by
appropriate governmental authorities, any such notice to include a description
of "measures taken or proposed to be taken by Tenant to contain and remediate
the Release and any resultant damage to property, persons, or the environment,
(e) at Landlord's request, which shall not be more frequent than once per
calendar year,
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retain an independent engineer or other qualified consultant or, expert
acceptable to Landlord, to conduct, at Tenant's expense, an environmental audit
of the Premises and immediate surrounding areas, and the scope of work to be
performed by such engineer, consultant, or expert shall be approved in advance
by Landlord, and all of the engineer's, consultant's or expert's work product
shall be made available to Landlord, (f) at Landlord's request from time to
time, executed affidavits, representations and the like concerning Tenant's best
knowledge, and belief regarding the presence of Hazardous Materials in the
Premises, (g) reimburse to Landlord, upon demand, the reasonable cost of any
testing for the purpose of ascertaining if there has been any Release of
Hazardous Materials in the Premises, if such testing is required by any
governmental agency or Landlord's Mortgagee, (h) upon expiration or termination
of this Lease, surrender the Premises to Landlord free from the presence and
contamination of any Hazardous Materials. Tenant shall indemnify, protect,
defend (by counsel reasonably acceptable to Landlord), and hold Landlord and
free and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses and expenses (including attorneys' fees) or death of or
injury to any person or damage to any property whatsoever, including, without
limitation, the Center Common Area, arising from or caused in whole or in part,
directly or indirectly, by the presence in or about the Center of any of
Tenant's Hazardous Materials Activity or by Tenant's failure to comply with any
Hazardous Materials Law regarding Tenant's Hazardous Materials Activity or in
connection with any removal, remediation, clean up, restoration and materials
required hereunder to return the Premises and any other property of whatever
nature to their condition existing prior to Tenant's Hazardous Materials
Activity.
Disclosure Warning and Notice Obligations. Tenant shall comply with all
laws, ordinances and regulations in the State where the Premises is located
regarding the disclosure of the presence or danger of Tenant's Hazardous
Materials. Tenant acknowledges and agrees that all reporting and warning
obligations required under the Hazardous Materials Laws with respect to Tenant's
Hazardous Materials Activity are the sole responsibility of Tenant, whether or
not such Hazardous Materials Laws permit or require Landlord to provide such
reporting or warnings, and Tenant shall be solely responsible for complying with
such Hazardous Materials Laws regarding the disclosure of, the presence or
danger of Tenant's Hazardous Materials Activity. Tenant shall immediately notify
Landlord, in writing, of any complaints, notices, warnings, reports or asserted
violations of which Tenant becomes aware relating to Hazardous Materials on or
about the Premises. Tenant shall also immediately notify Landlord if Tenant
knows or has reason to believe Tenant's Hazardous Materials have or will be
released in or about the Center or the Premises.
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Environmental Tests and Audits. Tenant shall not perform or cause to be
performed, any Hazardous Materials surveys, studies, reports or inspection,
relating to the Premises without obtaining Landlord's advance written consent,
which consent may be withheld in Landlord's sole discretion. At any time prior
to the expiration of the Lease Term, Landlord shall have the right to enter upon
the Premises in order to conduct appropriate tests and to deliver to Tenant the
results of such tests to demonstrate that levels of any Hazardous Materials in
excess of permissible levels has occurred as a result of Tenant's use of the
Premises.
Survival/Tenant's Obligations. The respective rights and obligations of
Landlord and Tenant under this Article shall survive the expiration or
termination of this Lease.
DESTRUCTION OF PREMISES
Damage and Destruction. If all or any part of the Premises shall be
damaged or destroyed by fire or other casualty, this Lease shall continue in
full force and effect, unless terminated as hereinafter provided, and Landlord
shall repair, restore or rebuild the Premises to the condition existing at the
time of the occurrence of the loss, provided, however, Landlord shall not be
obligated to commence such repair, restoration or rebuilding until insurance
proceeds are received by Landlord, and Landlord's obligation hereunder shall be
limited to the proceeds actually received by Landlord under any insurance policy
or policies, if any, less those amounts (i) which have been required to be
applied towards the reduction of any indebtedness secured by a mortgage covering
the Center or any portion thereof, and (ii) which are used to reimburse Landlord
for all costs and expenses, including but not limited to attorneys' fees,
incurred by Landlord to recover any such insurance proceeds.
Tenant agrees to notify Landlord in writing not less than thirty (30)
days prior, to the date Tenant opens for business in the Premises of the actual
cost of all permanent leasehold improvements and betterments installed or to be
installed by Tenant in the Premises (whether same have been paid for entirely or
partially by Tenant), but exclusive of. Tenant I s personal property, movable
trade fixtures and inventory. Similar notifications shall be given to Landlord
not less than thirty (30) days prior to the commencement of any proposed
alterations, additions or improvements to the Premises. If Tenant fails to
comply, with the foregoing provisions, any loss or damage Landlord shall sustain
by reason thereof shall be borne by Tenant and shall be paid immediately by
Tenant upon receipt of a xxxx therefore and evidence of such loss, and in
addition to any other rights or remedies reserved by Landlord under this Lease,
Landlord's obligations
15
under this Article to repair, replace and/or rebuild the Premises shall be
deemed inapplicable, and in lieu thereof, Landlord may, at its election, either
restore or require Tenant to restore the Premises to the condition which existed
prior to such loss, and in either case Tenant shall pay the cost of such
restoration.
Tenant covenants and agrees to repair or replace Tenant's fixtures,
furniture, furnishings, floor coverings, equipment and stock in trade and reopen
for business in the Premises within thirty (30) days after notice from Landlord
that the Premises are ready for re-occupancy.
No damage or destruction to the Premises shall allow Tenant to
surrender possession of the Premises nor affect Tenant's liability for the
payment of rents or charges or any other covenant herein contained, except as
may be specifically provided in this Lease.
Notwithstanding anything to the contrary contained in this Section or
elsewhere in this Lease, Landlord, at its option, may terminate this Lease by
giving Tenant notice thereof within one hundred and eighty (180) days from the
date of the casualty if:
(a) The Premises or the building in which the Premises are
located shall be damaged or destroyed as a result of an occurrence which is not
covered by Landlord's insurance; or
(b) The Premises shall be damaged or destroyed during the last
two (2) years of the Term or any renewals thereof; or
(c) If by fire or other casualty the Premises are damaged or
destroyed to the extent of twenty five-percent (25%) or more of the replacement
cost thereof, or the Center is damaged or destroyed to the extent of twenty-five
per cent (25%) or more of the replacement cost thereof, Landlord will have the
option of terminating this Lease or any renewal thereof by serving written
notice upon Tenant and any prepaid Rent or Additional Rent will be prorated as
of the date of destruction and the unearned portion of such Rent will be
refunded to Tenant without interest.
(d) Any or all of the buildings or Common Areas of the Center
are damaged (whether or not the Premises are damaged) to such an extent that, in
the sole judgment of Landlord, the Center cannot be operated as an economically
viable unit.
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If the Premises shall be damaged or destroyed and in the event that
Landlord has elected to continue this Lease, Landlord and Tenant shall commence
their respective obligations under this Article as soon as is reasonably
possible and prosecute the same to completion with all due diligence.
Except where the damage or destruction results from the wrongful or
negligent act or omission of Tenant, the Minimum Rent shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of any damage, repair or restoration provided for in
this Article 20; provided further, that in the event Landlord elects to repair
any damages as herein contemplated, any abatement of Minimum Rent shall end ten
(10) days after notice by Landlord to Tenant that the Premises have been
repaired. Tenant shall continue the operation of its business on the Premises
during any such period to the extent reasonably practicable from the standpoint
of prudent business management, and any obligation of Tenant under the Lease to
apply charges reserved as Additional Rent or Percentage Rent shall remain in
full force and nothing in the Section shall be construed to xxxxx Additional
Rent or Percentage Rent. Except for the abatement of Minimum Rent hereinabove
provided, Tenant shall not be entitled to any compensation or damage for loss in
the use of the whole or any part of the Premises and/or any inconvenience or
annoyance occasioned by any damage, destruction, repair or restoration. If
Minimum Rent is abated there shall be all corresponding and appropriate
reduction made to the Minimum Annual Volume.
Unless this Lease is terminated by Landlord, Tenant shall repair,
restore and re-fixture all parts of the Premises not insured under any insurance
policies insuring Landlord in a manner and to a condition equal to that existing
prior to its destruction or damage, including, without limitation, all exterior
signs, trade fixtures, equipment, display cases, furniture, furnishings and
other installations of personalty of Tenant. The proceeds of all insurance
carried by Tenant on its property and improvements shall be held in trust by
Tenant for the purpose of said repair and replacement. Tenant shall give to
Landlord prompt written notice of, any damage to or destruction of any portion
of the Premises resulting from fire or other casualty.
EMINENT DOMAIN
Total Condemnation of Premises. If the whole of the Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then the Term of this Lease shall cease and terminate as of the date of
title vesting in such proceeding and all rentals shall be paid up to that date.
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Partial Condemnation of Premises. A. If twenty (20%) percent or more of
the Premises shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, then the Tenant shall have the option to cancel and
terminate this Lease upon notice thereof given to the Landlord within ninety
(90) days after the vesting of title in such proceeding.
B. In the event that less than ten (10%) percent of the
Premises shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, or in the event ten (10%) percent or more of the
Premises shall have been so taken, and Tenant shall not elect to terminate this
Lease as set forth above, then the Landlord shall promptly restore the Premises
to a condition reasonably comparable under the circumstances to its condition at
the time of such condemnation, less the portion lost in the taking; and this
Lease shall thereafter continue in full force and effect. In such event of a
partial taking, described hereinabove, from the effective date that physical
possession is taken by the condemning authority through the end of the term of
this Lease, the annual Minimum Rent payable by Tenant to Landlord under Section
1.5 of this Lease shall be reduced by a fraction, the numerator of which shall
be the gross area of the premises so taken by the condemning authority and the
denominator of which shall be the gross area of the Premises on the date
immediately prior to the effective date of such taking.
Total Condemnation of Parking Area. If the whole of the common parking
areas in the Center shall be acquired or condemned by eminent domain for any
public or quasi-public use or purpose, then the term of this Lease shall cease
and terminate as of the date of title vesting in such proceeding.
Partial Condemnation of Parking Area. If twenty (20%) percent or more
of the common parking areas in the Center shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, then the Tenant
shall have the option to cancel and terminate this Lease upon notice thereof
given to the Landlord within ninety (90) days after the vesting of title in such
proceeding.
If less than twenty (20%) percent of the parking areas in the Center
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purpose, or if more than twenty (20%) percent of the parking areas shall
be so acquired or condemned, but Tenant shall not elect to cancel and terminate
this Lease, then the Landlord shall restore the parking areas to a condition
reasonably comparable under the circumstances to its condition at the time of
such condemnation, less the portion lost in
18
the taking. In such event, this Lease shall be and remain in full force and
effect and no reduction of Minimum Rent, Percentage Rent or any Additional Rent
payable by Tenant under this Lease shall be allowed in such circumstances, but
Tenant shall continue to pay the full Minimum Rent, Percentage Rent, or any
Additional Rent payable under this Lease for the balance of the term hereof.
DEFAULTS
Events of Default By Tenant. If (1) Tenant vacates, abandons or
surrenders all or any part of the Premises prior to the expiration of the Term
of the Lease or (2) Tenant fails to fulfill any of the terms or conditions of
this Lease or any other lease heretofore made by Tenant for space in the Center
or (3) the appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant's assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant's assets located at
the Premises, or of Tenant's interest in this Lease, occurs, or (4) Tenant or
any of its successors or assigns or any guarantor of this Lease ("Guarantor")
should file any voluntary petition in bankruptcy, reorganization or arrangement,
or an assignment for the benefit of creditors or for similar relief under any
present or future statute, law or regulation relating to relief of debtors, or
(5) Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy,
reorganization or arrangement filed against it, or (6) Tenant shall permit,
allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Landlord's or Tenant's interest in this Lease or to
the Premises, and/or the fixtures, improvements and furnishings located thereon;
then, Tenant shall be in default hereunder.
Tenant's Grace Periods. If (1) Tenant fails to pay Rent or Additional
Rent within five (5) days after notice from Landlord of delinquency or (2)
Tenant fails to cure any other default within ten (10) days after notice faith),
then Landlord shall have such remedies as are provided under this Lease and/or
under the laws of the State in which the Center is located.
Repeated Late Payment. Regardless of the number of times of Landlord's
prior acceptance of late payments and/or late charges, (i) if Landlord notifies
Tenant twice in any 6-month period that Minimum Rent, Percentage Rent or any
Additional Rent has not been paid when due, then any other late payment within
such 6-month period shall automatically constitute a default hereunder without
the necessity of notice and (ii) the mere acceptance by Landlord of late
payments in the past shall not, regardless of any applicable laws to the
contrary, thereafter be deemed to waive Landlord's right to strictly enforce
this Lease, including Tenant's obligation to make payment of Rent on the exact
day same is due, against Tenant.
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Landlord's Default. If Tenant asserts that Landlord has failed to meet
any of its obligations under this Lease, Tenant shall provide written notice
("Notice of Default") to Landlord specifying the alleged failure to perform, and
Tenant shall send by certified mail, return receipt requested, a copy of such
Notice of Default to any and all mortgage holders, provided that Tenant has been
previously advised of the addresses) of such mortgage holder(s). Landlord shall
have a thirty (30) day period after receipt of the Notice of Default in which to
commence curing any non-performance by Landlord, and Landlord shall have as much
time thereafter to complete such cure as is necessary so long as Landlord's cure
efforts are diligent and continuous. If Landlord has not begun the cure within
thirty (30) days of receipt of the Notice of Default, or Landlord does not
thereafter diligently and continuously attempt to cure, then Landlord shall be
in default under this Lease. If Landlord is in default under this Lease, then
the mortgage holder(s) shall have an additional thirty (30) days, after receipt
of a second written notice from Tenant, within which to cure such default or, if
such default cannot be cured within that time, then such additional time as may
be necessary so long as their efforts are diligent and continuous.
LANDLORD'S REMEDIES FOR TENANT'S DEFAULT.
Landlord's Options. If Tenant is in default of this Lease, Landlord
may, at its option, in addition to such other remedies as may be available under
the law of the State where the Center is located:
1. Terminate this Lease and Tenant's right of possession; or
2. Terminate Tenant's right to possession but not the Lease and/or
proceed in accordance with any and all provisions of paragraph B below.
Landlord's Remedies. Landlord may without further notice reenter the
Premises either by force or otherwise and dispossess Tenant by summary
proceedings or otherwise, as well as the legal representatives) of Tenant and/or
other occupants) of the Premises, and remove their effects and hold the
Premises as if this Lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end; and/or at Landlord's option.
All Rent and all Additional Rent for the balance of the Term will, at
the election of Landlord, be accelerated and the present worth of same for the
balance of the Lease Term, net of amounts actually collected by Landlord, shall
become immediately due thereupon and be paid, together with all expenses of
every nature which Landlord may incur such as (by way of illustration and not
limitation) those for attorneys' fees, brokerage, advertising, and refurbishing
the Premises in good order or preparing them
20
for re-rental. For purposes of this clause (2), "present worth" shall be
computed by discounting such amount to present worth at a discount rate equal to
one percentage point above the discount rate then in effect at the Federal
Reserve Bank nearest to the location of the Center. If such termination shall
take place after the expiration of two or more Lease Years, then, for purposes
of computing the accelerated Rent, the Annual Percentage Rent payable with
respect to each Lease Year following termination (including the Lease Year in
which such termination shall take place) shall be conclusively presumed to be
equal to the average Annual Percentage Rent payable with respect to each
complete Lease Year preceding termination. If such termination shall take place
before the expiration of two Lease Years, then, for purposes of computing the
accelerated Rent, the Annual Percentage Rent payable with respect to each Lease
Year following termination (including the Lease Year in which such the unexpired
Term shall be conclusively presumed to be a sum equal to twenty-five percent
(25%) of the annual Minimum Rent due and payable during such unexpired Term;
and/or at Landlord's option.
Landlord may re-let the Premises or any part thereof, either in the
name of Landlord or otherwise, for a term or terms which may at Landlord's
option be less than or exceed the period which would otherwise have constituted
the balance of the Lease Term, and may grant concessions or free rent or charge
a higher rental than that reserved in this Lease; and/or at Landlord's option,
Tenant or its legal representatives will also pay to Landlord as
liquidated damages any deficiency between the Rent and all Additional Rent
hereby reserved and/or agreed to be paid and the net amount, if any, of the
rents collected on account of the lease or leases of the Premises for each month
of the period which would otherwise have constituted the balance of the Lease
Term.
If Landlord exercises the remedy above, and provided that Tenant has
paid Landlord the accelerated Rent as required by this paragraph, Landlord shall
remit to Tenant on a monthly basis until the Expiration Date any amounts
actually collected by Landlord as a result of a re-letting remaining after
subtracting therefrom all reasonable costs paid by Landlord to secure a
replacement tenant including reasonable marketing/leasing costs, fees and
commissions, and costs of preparing improvements and refurbishment to the
Premises for the replacement tenant. In no event shall the total amount paid to
Tenant pursuant to the preceding sentence exceed the accelerated Rent paid by
Tenant to Landlord. If this Lease is terminated pursuant to Section 23.5(A) (2)
Landlord may re-let the Premises or any part thereof, alone or together with
other
21
premises, for such term or terms (which may be greater or less than the period
which otherwise would have constituted the balance of the Term) and on such
terms and conditions (which may include concessions or free rent and alterations
of the Premises) as Landlord, in its sole discretion, may determine, but
Landlord shall not be liable for nor shall Tenant's obligations hereunder be
diminished by reason of, any failure by Landlord to re-let the Premises or any
failure by Landlord to collect any rent due upon such re-letting.
Waiver of Jury Trial. To the extent permitted by law, Tenant hereby
waives: (a) jury trial in any action or proceeding regarding a monetary default
by Tenant and/or Landlord's right to possession of the Premises, and (b) in any
action or proceeding by Landlord for eviction where Landlord has also filed a
separate action for damages, Tenant waives the right to interpose any
counterclaim in such eviction action. Moreover, Tenant agrees that it shall not
interpose or maintain any counterclaim in such damages action unless it pays and
continues to pay all Rent, as and when due, into the registry of the court in
which the damages action is filed.
Waiver of Rights of Redemption. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises, by reason of the violation by
Tenant of any of the covenants or conditions of this Lease or otherwise.
BANKRUPTCY PROVISIONS
Event of Bankruptcy. If this Lease is assigned to any person or entity
pursuant to the provisions of the United States Bankruptcy Code, 11 U.S.C.
Section 101 et seq. (the "Bankruptcy Code"), any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord, and shall not constitute the property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and
all monies or other considerations constituting Landlord's property under this
Section not paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and shall be promptly paid or delivered to Landlord. Any person or
entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have assumed all
of the obligations arising under this Lease on and after the date of such
assignment.
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Additional Remedies. In addition to any rights or remedies hereinbefore
or hereinafter conferred upon Landlord under the terms of this Lease, the
following remedies and provisions shall specifically apply in the event Tenant
is in default of this Lease:
(1) In all events, any receiver or trustee in bankruptcy shall
either expressly assume or reject this Lease within sixty (60) days following
the entry of an "Order for Relief" or within such earlier time as may be
provided by applicable law.
(2) In the event of an assumption of this Lease- by a debtor or by
a trustee, such debtor or trustee shall within fifteen (15) days after such
assumption (i) cure any default or provide adequate assurance that defaults will
be promptly cured; (ii) compensate Landlord for actual pecuniary loss or provide
adequate assurance that compensation will be made for actual monetary loss,
including, but not limited to, all attorneys' fees and costs incurred by
Landlord resulting from any such proceedings; and (iii) provide adequate
assurance of future performance.
(3) Where a default exists under this Lease, the trustee or debtor
assuming this Lease may not require Landlord to provide services or supplies
incidental to this Lease before its assumption by such trustee or debtor, unless
Landlord is compensated under the terms of this Lease for such services and
supplies provided before the assumption of such Lease.
(4) The debtor or trustee may only assign this Lease if (i) it is
assumed and the assignee agrees to be bound by this Lease, (ii) adequate
assurance of future performance by the assignee is provided, whether or not
there has been a default under this Lease, and (iii) the debtor or trustee has
received Landlord's prior written consent pursuant to the provisions of this
Lease. Any consideration paid by any assignee in excess of the rental reserved
in this Lease shall be the sole property of, and paid to, Landlord.
(5) Landlord shall be entitled to the fair market value for the
Premises and the services provided by Landlord (but in no event less than the
rental reserved in this Lease) subsequent to the commencement of a bankruptcy
event.
(6) Any security deposit given by Tenant to Landlord to secure the
future performance by Tenant of all or any of the terms and conditions of this
Lease shall be automatically transferred to Landlord upon the entry of an "Order
of Relief".
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(7) The parties agree that Landlord is entitled to adequate
assurance of future performance of the terms and provisions of this Lease in the
event of an assignment under the provisions of the Bankruptcy Code. For purposes
of any such assumption or assignment of this Lease, the parties agree that the
term "adequate assurance" shall include, without limitation, at least the
following: (i) any proposed assignee must have, as demonstrated to Landlord's
satisfaction, a net worth (as defined in accordance with generally accepted
accounting principles consistently applied) in an amount sufficient to assure
that the proposed assignee will have the resources to meet the financial
responsibilities under this Lease, including the payment of all Rent; the
financial condition and resources of Tenant are material inducements to Landlord
entering into this Lease; (ii) any proposed assignee must have engaged in the
Use described in Section 1.11 for at least five (5) years prior to any such
proposed assignment, the parties hereby acknowledging that in entering into this
Lease, Landlord considered extensively Tenant's permitted use and determined
that such permitted business would add substantially to the tenant balance in
the Center, and were it not for Tenant's agreement to operate only Tenant's
permitted business on the Premises, Landlord would not have entered into this
Lease, and that Landlord's operation of the Center will be materially impaired
if a trustee in bankruptcy or any assignee of this Lease operates any business
other than Tenant's permitted business; (iii) any assumption of this Lease by a
proposed assignee shall not adversely affect Landlord's relationship with any of
the remaining tenants in the Center taking into consideration any and all other
"use" clauses and/or "exclusivity" clauses which may then exist under their
leases with Landlord; and (iv) any proposed assignee must not be engaged in any
business or activity which it will conduct on the Premises and which will
subject the Premises to contamination by any Hazardous Materials.
LIMITATIONS OF LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of the Landlord are concerned shall be limited to mean
and include only a ground lessee if the named Landlord herein is holding the
premises under a ground lease for so long as the named Landlord is the holder of
such ground lease interest or the owner or owners of the fee simple of the
Premises; and in the event of transfer or transfers of either the ground
leasehold interest to any other person or the transfer of title to the fee
premises to any person, the Landlord herein named (and in the case of subsequent
transfers or conveyances the then grantor or assignor), shall be automatically
freed and relieved from and after the date of such transfer or conveyance or
assignment of all liability as respects the performance of any covenant or
obligation on the part of the
24
Landlord contained in this Lease thereafter to be performed, it being the
intention of the parties that the covenants and obligations to be observed and
performed by the-Landlord shall be binding upon the Landlord only during and in
respect of its period of ownership of either a leasehold interest, or a fee
interest as the case may be. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that Tenant shall, subject to prior rights of any
mortgagee of the Center, look solely to the estate and property of Landlord in
the Center for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms, covenants and conditions of this
Lease to be observed and/or performed by Landlord, and no other assets of
Landlord or any principal of Landlord shall be subject to levy, execution or
other procedures for the satisfaction of Tenant's remedies.
ACCESS BY LANDLORD
Landlord or Landlord's agents shall have the right to enter the
Premises at all times to examine the same and to show them to prospective
purchasers of the building, and to make such repairs, alterations, improvements
or additions as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon said premises that may be required
therefor, without the same constituting an eviction of Tenant in whole or in
part and the Rent reserved shall in no way xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. During the six (6) month
period prior to the expiration of the term of this Lease or any renewal term,
Landlord may exhibit the Premises to prospective tenants or purchasers, and
place upon the premises the usual notices "To Let" or "For Sale" which notices
Tenant shall permit to remain thereon without molestation. Nothing herein
contained, however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever, for the care, maintenance,
or repair of the Premises or any part thereof, except as otherwise herein
specifically provided. Landlord to give Tenant reasonable notice during business
hours prior to any entry.
QUIET ENJOYMENT
Landlord's Covenant. Upon payment by the Tenant of the rents and other
charges herein provided, and upon the observance and performance of all the
covenants, terms and conditions on Tenant's part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the
term hereby demised without
25
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.
MISCELLANEOUS
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.
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, 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.
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.
26
Landlord: Tenant:
Bradenton Radiation Associates 21st Century Oncology, Inc.
0000 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx.
Xxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
(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.
Successors. All rights and liabilities herein given to, or imposed
upon, the respective parties hereto shall extend to and bind the several
respective heirs, legal representatives, and permitted successors and assigns of
the said parties; and if there shall be more than one person or party
constituting the Tenant, they shall be bound jointly and severally by the terms,
covenants and agreements herein. No rights, however, shall inure to the benefit
of any assignee of Tenant unless the assignment to such has been approved by
Landlord in writing as provided herein. Nothing contained in this Lease shall in
any manner restrict Landlord's right to assign or encumber this Lease and, in
the event Landlord sells its interest in the Building and the purchaser assumes
Landlord's obligations and covenant, Landlord shall thereupon be relieved of all
further obligations hereunder.
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.
Broker's Commission. The Tenant represents and warrants to Landlord
that it has dealt with no real estate broker, agent, salesperson or finder in
connection with this Lease or the 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. Such indemnity of Tenant shall include,
without limitation., all of attorneys, fees incurred in connection therewith.
27
Partial Invalidity. If any term, covenant I 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.
Estoppel Certificate. Landlord and Tenant agree that each will, at any
time and from time to time, within ten (10) days following written notice by the
other party hereto specifying that it is given pursuant to this Section,
execute, acknowledge and deliver to the party who gave such notice, or its
designate, a statement in writing certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect and stating the modifications), and the date to which
the annual rent and any other payments due hereunder from Tenant have been paid
in advance, if any, and stating whether or not there are defenses or offsets
claimed by the maker of the certificate and whether or not to the best of
knowledge of the signer of such certificate the other party is in default in
performance of any covenant agreement or condition contained in this Lease, and
if so, Specifying each such default of which the maker may have knowledge and if
requested, such financial information concerning Tenant and Tenant's business
operations (and the Guarantor of this Lease, if this Lease be guaranteed) as may
be reasonably requested by any Mortgagee or prospective mortgagee or purchaser.
The failure of either party to execute, acknowledge and deliver to the other a
statement in accordance with the provisions of this Section within said ten (10)
business day period shall constitute an acknowledgment, by the party given such
notice, which may be relied on by any person holding or proposing to acquire an
interest in the Building or any party thereof or the 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 an
including the respective due dates immediately preceding the date of such notice
and shall constitute, as to any person entitled as aforesaid to rely upon such
statements, waiver of any defaults which may exist prior to the date of such
notice; provided, however that nothing contained in the provision of this
Section shall constitute waiver by Landlord of any default in payment of rent or
other charges existing as of the date of such notice and, unless expressly
consented to in writing by Landlord, and Tenant shall still remain liable for
the same.
28
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 payment of money by
Landlord in the event of any default by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and performed by
Landlord, and no other property or estates of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Tenant's
remedies and rights under this Lease. Both parties waive a jury trial if any
litigation arises.
Recordings. Tenant shall not record this Lease, or any memorandum or
short form thereof, without the written consent and joinder of Landlord.
Time of Essence. Tune is of the essence with respect to the performance
of every provision of this Lease in which time of performance is a factor.
TENANT'S PROPERTY
Taxes on Leasehold. Tenant shall be responsible for and shall pay
before delinquency all municipal, county or state taxes assessed during the term
of this Lease against any leasehold interest or personal property of any kind,
owned by or placed in, upon or about the Premises by the Tenant
Personal Property. Landlord shall not be liable for any damage to
property of Tenant or of others located on the Premises, nor for the loss of or
damage to any property of Tenant or of others by theft or otherwise. Landlord
shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, falling piaster, steam, gas, electricity, water, rain, or
snow or leaks from any part of the Premises or from the pipes, appliances or
plumbing works or from the roof, street or subsurface or from any other place or
by dampness or by any other cause of whatsoever nature. Landlord shall not be
liable for any such damage caused by other tenants or persons in the Premises,
occupants of adjacent property, of the Center, or the public, or caused by
operation in construction of any private, public or quasi-public work. All
property of Tenant kept or stored on the Premises shall be so kept or stored at
the sole risk of Tenant only.
Notice by Tenant. Tenant shall give immediate notice to Landlord in
case of fire or accidents in the Premises or in the building of which the
Premises are a part or of defects therein or in any fixtures or equipment.
29
HOLDING OVER SUCCESSORS
Surrender of Premises. At the expiration of the tenancy hereby created,
Tenant shall surrender the Premises in the same condition as the Premises were
in upon the Commencement Date, reasonable wear and tear excepted, and damage by
unavoidable casualty excepted, and shall surrender all keys for the Premises to
Landlord at the place then fixed for the payment of rent and shall inform
Landlord of all combinations on locks, safes and vaults, if any, in the
Premises. Tenant shall remove all its trade fixtures before surrendering the
premises as aforesaid and shall repair any damage to the Premises caused
thereby. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the term of this Lease.
ATTORNEY FEES AND COSTS
Attorney Fees and Costs. In the event of a lawsuit or litigation
concerning this Lease or enforcement of this Lease the prevailing party shall be
entitled to reasonable attorney fees and costs. This will also cover appellant
fees and appellant costs,
VENUE
Venue. In the event of a lawsuit, litigation or interpretation of this
Lease Agreement parties shall be governed by the laws of the State of Florida.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
on ___________day of______________________________________, 2002.
Signed, sealed and delivered
in the, presence of:
/s/ Xxxxx Xxxxxxx LANDLORD:
---------------------------------- BRADENTON RADIATION
Signature ASSOCIATES, a Florida partnership
Xxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ------------------------------------
Print Name Xxxxxx X. Xxxxxxxx, Managing Partner
/s/ Xxxxx X. Xxxxxxxxxxx TENANT:
---------------------------------- 21ST CENTURY ONCOLOGY, INC.
Signature a Florida corporation
Xxxxx X. Xxxxxxxxxxx /s/ XXXXXX X. XXX
---------------------------------- ------------------------------------
Print Name XXXXXX X. XXX, ASSISTANT SECRETARY
EXHIBIT "A"
Xxx 0 xxx 0, XXXXXX & XXXXX-XXXXX XXXXXXXXXX SUBDIVISION,
according to the Plat thereof, recorded in Plat Book 33, Pages
65 and 66, of the Public Records of Manatee County, Florida
