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EXHIBIT 10.5
L E A S E
---------
THIS LEASE AGREEMENT, made and entered into this 1st day of
December, 1980, by and between ADVENTIST HEALTH SYSTEM/SUNBELT, INC., a
corporation d/b/a MEDICAL CENTER HOSPITAL, LESSOR, herein called MEDICAL CENTER,
and ONCOLOGY ASSOCIATES AT PUNTA GORDA, INC., LESSEE, herein called ONCOLOGY:
RECITALS
MEDICAL CENTER, on 31 DECEMBER 1976, as Lessor, did enter into a
certain agreement with XXXXXX X. XXXXXX, M.D., as Lessee, leasing unto Lessee
certain lands and a portion of the building thereon, situate in Punta Gorda,
Florida. Thereafter, on 2 June 1977, said agreement was by Lessee assigned and
set over to ONCOLOGY. The said agreement required Lessee to erect and equip on
the leased lands a building to be utilized for supplying certain medical
treatment and diagnostic facilities; and the said building has in fact been
erected and equipped, and is providing the services for which it was built. The
parties to said agreement, recognizing the need to expand the said facilities
and services, and desiring to alter their contractual relationship, have agreed
to redraft and supersede the agreement of 31 December 1976, so as better to
provide health care services and facilities to the people of this area.
NOW, THEREFORE,
WITNESSETH: The parties hereto, for and in consideration of the
covenants herein contained, agree:
1. That the foregoing RECITALS are true and correct and are adopted
as a part of this agreement.
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2. The MEDICAL CENTER does let and lease unto ONCOLOGY all that
certain tract of land, together with the buildings thereon, all as described on
Exhibit A.
3. The term of this lease is 46 years, commencing December 1, 1980,
and the rental is as follows:
(a) The rental, payable in advance on the first day of each month,
shall be $700.00 per month during the first year of the term. Thereafter, the
rent shall be adjusted for each successive year by a sum computed by multiplying
the increase of decrease in the Consumers Price Index (CPI) of the U.S.
Department of Commerce by the Monthly rental rate for the immediately preceding
calendar year. Provided, however, that the rental shall never be less than
$700.00 per month.
4. ONCOLOGY shall have the right at its expense to erect additional
equipment deemed by ONCOLOGY to be necessary, but plans therefore shall be
submitted to the approved by MEDICAL CENTER, which shall not unreasonably
withhold such approval. The rent shall not be increased or decreased by reason
of any such construction.
5. ONCOLOGY shall--
(a) Pay all real and personal property taxes, if any, on the
demised premises and all structures now or hereafter situated thereon;
(b) Pay for all utilities, and cleaning of the building;
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(c) At its expense maintain and keep in good repair all
structures now or hereafter on the demised lands, subject, however, to normal
wear and obsolescence;
(d) At its expense maintain fire, windstorm and other casualty
insurance on the premises to the full insurable value thereof, together with
public liability and property damage insurance in the minimum limits of
$1,000,000 per person or $3,000,000 per incident or accident, such insurance to
indemnify both parties hereto as their respective interest may appear. ONCOLOGY
shall annually, on or before the anniversary date of such insurance, furnish to
MEDICAL CENTER certificate or certificates of insurers attesting to the
existence and continued validity of such insurance coverage. The insurance shall
always be maintained in a company or in companies acceptable to MEDICAL CENTER;
(e) Deliver up possession of the premises, with all structures
thereon, to MEDICAL CENTER at the termination of the term, and title to all
structures and other improvements shall thereupon vest in fee simple in MEDICAL
CENTER;
(f) Permit no liens or other encumbrances to be placed upon the
said premises (except with the written approval of MEDICAL CENTER, and in the
event a lien shall be asserted, to cause the same to be promptly satisfied, or
promptly take such other action as shall be required to eliminate the same;
(g) At its expense, pay for all modifications and alterations in
the structures now on the premises; but to
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undertake no such modifications or alterations without first obtaining the
approval in writing of MEDICAL CENTER;
(h) Utilize the demised premises, including all structures now or
hereafter placed thereon for medical treatment and diagnostic facilities, and
for offices of physicians and business offices; which uses shall be compatible
with the services, facilities and activities of MEDICAL CENTER.
6. (a) MEDICAL CENTER reserves the exclusive option at any time,
after the lease has been in effect for twenty-five (25) years, to terminate the
same upon payment in full to ONCOLOGY of a sum equal to the excess of the fair
market value of the leasehold interest, exclusive of the land value, at the date
of exercise of the option over $60,000. The fair market value shall be
determined by an appraisal to be performed by an MAI or such other qualified and
properly licensed person as shall be agreed upon by the parties. If the parties
shall not agree on the appraiser within 10 days prior to the end of the year
next prior to the end of the rental period, then each shall appoint a qualified
appraiser, the two thus named shall appoint a third, and the appraisal amount
agreed to by the three (or a majority of them) shall be binding upon the
parties. If either party refuses or fails to appoint an appraiser, the other may
select one after 15 days' prior notice in writing to the defaulting party, who
shall be bound by the appraisal result.
(b) It is agreed that Xxxxxx X. Xxxxxx, M.D., and Xxxxxxx X.
Xxxxxx, his wife, are the sole stockholders of ONCOLOGY at the date hereof. In
the event of the death of
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Xxxxxx X. Xxxxxx, M.D., or loss of his medical staff privileges in MEDICAL
CENTER at any time during the term of this lease, MEDICAL CENTER shall purchase
and the stockholders shall sell the entire leasehold interest as provided in (a)
above but only in the event at such time Xxxxxx Xxxxxx, M.D., and Xxxxxxx X.
Xxxxxx, his wife, shall be the owners of all of said stock.
7. If the premises are totally destroyed by fire, this agreement
shall terminate as of the date of destruction, and the parties shall thereafter
be discharged from liability hereunder. If the said premises are partially
destroyed by such casualty, ONCOLOGY shall repair them within 120 days of the
partial destruction. The rent will be reduced to the extent repair operations
interfere with the operations of ONCOLOGY. If the repairs cannot be made within
90 days, and the parties cannot agree on a longer time, either party may
terminate this agreement upon 15 days' notice in writing to the other.
8. MEDICAL CENTER reserves the right to enter on the premises at
reasonable times to inspect them and to perform required maintenance and repairs
to the exterior of the existing office building. MEDICAL CENTER may erect
scaffolding, fences and similar structures, post relevant notices and place
movable equipment in connection with making alterations, additions or repairs,
all without incurring liability to ONCOLOGY for disturbance of quiet enjoyment
of the premises or loss of occupation thereof.
9. ONCOLOGY shall not assign this lease or sublet the premises, or
any right or privilege connected therewith, or allow
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any other person except agents and employees of ONCOLOGY to occupy the premises
or any part thereof without first obtaining the written consent of MEDICAL
CENTER. A consent by MEDICAL CENTER shall not be a consent to a subsequent
assignment, sublease or occupation by other persons. An unauthorized assignment,
sublease or license by ONCOLOGY shall be void. The interest of ONCOLOGY in this
lease is not assignable by operation of law without the written consent of
MEDICAL CENTER.
10. The appointment of a receiver to take possession of the assets
of ONCOLOGY, a general assignment for the benefit of the creditors of ONCOLOGY,
any action taken or allowed to be taken by ONCOLOGY under any bankruptcy act,
the abandonment or vacation of the demised premises by ONCOLOGY, or the failure
of ONCOLOGY to comply with each and every term and condition of this lease shall
constitute a breach of this lease. ONCOLOGY shall have fifteen (15) days after
receipt of written notice from MEDICAL CENTER of any breach to correct the
conditions specified in the notice, or if the corrections cannot be made within
the fifteen (15) day period, ONCOLOGY shall have a reasonable time to correct
the default if action is commenced by ONCOLOGY within fifteen days after receipt
of the notice.
MEDICAL CENTER shall have the right to terminate and cancel this
agreement, as well as all of the right, title or interest of ONCOLOGY hereunder,
upon giving fifteen days notice of the cancellation and termination, in the
event any breach of the terms of this paragraph 11 shall not be cured as herein
required.
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11. The parties understand that the demised premises are presently
encumbered by a first mortgage made by MEDICAL CENTER, and that this lease is
subordinate to the lien thereof.
12. This lease, or a memorandum hereof, may be made a matter of
public record.
IN WITNESS WHEREOF, the Lessor has caused these presents to be
executed in its name by its duly authorized officer, and its corporate seal to
be affixed, and Lessee has caused these presents to be executed in its name by
its President, and its corporate seal to be affixed, the day and year first
above written.
ADVENTIST HEALTH SYSTEM/
Signed, sealed and delivered SUNBELT, INC., a Florida
in the presence of: corporation, d/b/a Medical
Center Hospital
/s/ By:/s/
--------------------------------- ---------------------------------
LESSOR
/s/
---------------------------------
as to Lessor
(CORPORATE SEAL)
ONCOLOGY ASSOCIATES AT PUNTA
GORDA, INC.
/s/ By:/s/
--------------------------------- ---------------------------------
LESSEE
/s/
---------------------------------
as to Lessor
(CORPORATE SEAL)
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ASSIGNMENT OF LEASE
THIS ASSIGNMENT is made by and between Oncology Associates at Punta
Gorda, Inc., a corporation under the laws of Florida ("Assignor"), and Punta
Gorda Building Associates, ("Assignee"), a Florida partnership, as designee of
Charlotte County Radiation Therapy Regional Center, Inc., under the following
circumstances:
A. Assignor is the tenant under a certain Lease (the "Lease") dated
December 1, 1980, by and between Adventist Health System/Sunbelt, Inc., a
corporation d/b/a Medical Center Hospital ("Hospital") and Assignor, relating to
the real property commonly known as the Oncology Center at 000 X. Xxxxxx xx
Xxxxx Xxxxx, Xxxxxxx.
B. Assignor desires to assign its interests in the Lease to
Assignee, and Assignee desires to assume the interests of Assignor in the Lease.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. For valuable consideration, the receipt of which is
hereby acknowledged, Assignor hereby sells, assigns and transfers to Assignee
all of Assignor's right, title and interest under and in the Lease.
SECTION 2. Assignor covenants that Assignor has performed all of its
obligations under the Lease which are to be performed before the effective time
of this Assignment, and Assignor further agrees to indemnify and hold Assignee
harmless from any and all such obligations.
SECTION 3. Assignee hereby assumes all of the obligations of
Assignor under the Lease which, pursuant to the terms and provisions of said
Lease, are to be performed on and after the effective time of this Assignment;
and Assignee further agrees to indemnify and hold harmless Assignor from any and
all such obligations.
SECTION 4. The effective date of this Assignment shall be August 9,
1990.
SECTION 5. For purposes of notices under the Lease, the address of
the Assignee is 0000 Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx 00000.
SECTION 6. This Assignment shall be binding upon and shall operate
to the benefit of the parties hereto and their respective successors, assigns,
heirs and legal representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the day and year first written above.
Signed and acknowledged ONCOLOGY ASSOCIATES AT PUNTA
in the presence of: GORDA, INC.
/s/ By:/s/ Xxxxxx X. Xxxxxx, M.D.
------------------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx, M.D.
-------------------------------- Its President
/s/ Xxxxxx X. Xxxx
-------------------------------------
Name:
-------------------------------- PUNTA GORDA BUILDING
ASSOCIATES
/s/Xxxxxxx Xxxxxxx By:/s/Xxxxxx X. Xxxxxxxx, M.D.
------------------------------------- ----------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxxxx, M.D.
-------------------------------- Its Authorized Partner
/s/ Xxxxxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxxxxx X. XxXxxx
-------------------------------
STATE OF FLORIDA )
) SS:
COUNTY OF CHARLOTTE )
The foregoing instrument was acknowledged before me this 9th
day of August, 1990, by Xxxxxx X. Xxxxxx, M.D., President of Oncology Associates
at Punta Gorda, Inc., a corporation under the laws of Florida, on behalf of the
corporation.
/S/
----------------------------------------------
Notary Public
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STATE OF FLORIDA )
) SS:
COUNTY OF CHARLOTTE )
The foregoing instrument was acknowledged before me this 9th day of
August, 1990, by Xxxxxx X. Xxxxxxxx, M.D., a general partner of PUNTA GORDA
RADIATION ASSOCIATES, a Florida general partnership, on behalf of the
partnership.
/s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Notary Public
CONSENT TO ASSIGNMENT
The undersigned, MEDICAL CENTER HOSPITAL, as landlord in the Lease
referred to in the foregoing Assignment of Lease, hereby consents to the
Assignment of Lease and releases Oncology Associates at Punta Gorda, Inc., from
its obligations under the Lease which accrue on or after the effective time
specified in Section 4.
ADVENTIST HEALTH SYSTEM/SUNBELT,
INC. d/b/a MEDICAL CENTER HOSPITAL
By:/s/ Xxxxx X. Xxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxx, Xx.
-----------------------------------------
Title: President
----------------------------------------
This instrument prepared by:
Xxxxxx X. Xxxx
Xxxx, Xxxxxxxxxx & Xxxxxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
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Exhibit A - Legal Description
TRIPLE NET LEASE
1. SPACE:
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PUNTA GORDA BUILDING ASSOCIATES, a Florida general partnership, whose
address is 0000 Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx 00000 (the
"Landlord"), subject to the terms hereinafter set forth, does hereby lease to
CHARLOTTE COUNTY RADIATION THERAPY REGIONAL CENTER, INC., whose address is 0000
Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx 00000 (the "Tenant"), the real
property and improvements thereon commonly known as the Oncology Center at 000
X. Xxxxxx xx Xxxxx Xxxxx, Xxxxxxx, as more completely described in Exhibit A
attached hereto (the "Property").
2. TERM:
----
A. INITIAL TERM. The initial term of this Lease shall commence on
August 9, 1990, and shall end at 11:59 p.m. on August 31, 1995, unless extended
pursuant to the terms hereof or unless sooner terminated as hereinafter
provided.
B. RENEWAL OPTIONS. Tenant shall have two (2) successive options to
renew the term of this Lease, each for a renewal period of five (5) years. If at
any time the term of this Lease expires or is terminated, all remaining renewal
options shall be void. Each option shall be exercisable by written notice to
Landlord, given at least six (6) months prior to the time that the term of this
Lease would otherwise have expired. As used in this Lease, the "term" of the
Lease means the initial term and all applicable renewal terms.
3. RENT:
----
A. INITIAL RENT. On the commencement date of this Lease, Tenant shall
pay Landlord rent calculated at the rate of Two Hundred Eighteen Dollars
($218.00) per day, plus applicable Florida sales tax from such commencement date
to and through August 31, 1990.
B. ANNUAL BASE RENT. (i) Commencing on September 1, 1990, Tenant agrees
to pay Landlord as base rent ("Annual Base Rent") the sum of Eighty One Thousand
Dollars ($81,000.00) per annum, plus applicable Florida sales tax, payable
without demand or setoff in lawful money of the United States, in equal monthly
installments of Six Thousand Seven Hundred Fifty Dollars ($6,750.00) each, plus
applicable Florida sales tax in the amount of $405 each month, in advance, on
the first day of each month during the term of this Lease.
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(ii) Effective on September 1, 1991, and on the same day of each year
thereafter during the term of this Lease, the Annual Base Rent shall be adjusted
to reflect any increase in the Consumer Price Index for All Urban Consumers-All
Items (1982-84=100) (All Areas), as published from time to time by the Bureau
of Labor Statistics of the United States Department of Labor ("CPI"); provided,
however, that the Annual Base Rent as adjusted shall not be more than five
percent (5%) (the "Maximum Adjustment Factor") of the Annual Base Rent
immediately preceding any particular adjustment date. If the CPI is discontinued
or not available, Landlord shall designate a comparable index published by a
governmental agency or responsible periodical. The CPI values which shall be
compared in determining the increase in the CPI for any adjustment date shall be
that index most recently published as of 30 days prior to the adjustment date,
and the index for the corresponding month in the preceding year. As an example,
if the effective date for CPI increases were January 1 of each year, the formula
to compute the Annual Base Rent effective January 1, 1995 would be as follows:
ANNUAL BASE RENT for 1995 equals the amount described in I, unless II or III
applies:
I. Annual Base Rent for 1994 times the CPI most recently
published as of December 1, 1994 (probably the CPI
for October, 1994), divided by the CPI for the same
month (in this case, October) in 1993.
II. Annual Base Rent for 1994 times the Maximum
Adjustment Factor, if the amount so computed is less
than the amount computed under I.
III. Annual Base Rent for 1994, if use Of I. would result
in a decrease (i.e., if in this example the CPI for
October 1994 is less than the CPI for October 1993).
C. ADDITIONAL RENT: (i) This is a "net lease" (a "carefree lease" for
Landlord), and Tenant agrees to pay, as Additional Rent, all real estate taxes
and installments of assessments levied against the Property during the term
hereof and all other costs or charges arising in connection with the Property,
including, without limitation, all costs of maintenance, repair, replacement and
insurance. Unless Landlord directs Tenant to make such payments directly to the
taxing authority, all such real estate taxes and assessments shall be paid to
Landlord as Additional Rent at least ten (10) days before the same would become
delinquent.
(ii) If Tenant shall default in performing any of its obligations
hereunder, Landlord, at its option, may cure such
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default and all costs and expenses of Landlord in curing such default or in
resisting any third-party claim (including, without limitation, attorneys' fees)
shall constitute Additional Rent hereunder and shall be due and payable by
Tenant within 10 days after written demand therefor is made by Landlord.
(iii) If any installment of the Annual Base Rent or the Additional
Rent, or any other sum owing by Tenant to Landlord under this Lease, is not paid
when due and payable or within 10 days thereafter, at Landlord's option, a late
charge of 5% of the amount past due shall be immediately due and payable.
(iv) If the present method of real estate taxation or assessment should
be changed so that there would be substituted for the whole or any part of the
real estate taxes or assessments now or hereafter imposed on the Property or any
part thereof, a capital tax or other tax imposed on the rent received by
Landlord from Tenant, such other tax, to the extent that it is so substituted,
shall be included in determining Landlord's real estate tax xxxx for the
relevant years, and shall be paid by Tenant.
4. USE AND CARE OF DEMISED PREMISES:
--------------------------------
A. Tenant shall use and occupy the Property only for medical diagnosis
and treatment and medical and general office purposes, and for accessory uses
customarily incidental thereto. Tenant, at its expense, shall comply with all
laws, ordinances, rules and regulations of governmental authorities having
jurisdiction, and the rules and regulations of the National Board of Fire
Underwriters (or other body exercising similar functions) relating to Tenant's
use and occupancy of the Property. Tenant shall not use or permit the use of the
Property for any illegal purposes.
B. Tenant agrees that the Property shall be used and occupied in a
careful, safe and proper manner, that no nuisance nor any trade or occupation
which is known in insurance as extra or especially hazardous shall be permitted
therein, and that no waste shall be committed or permitted upon the Property.
C. Tenant shall keep the Property in a clean and neat condition and
shall provide its own janitorial service.
5. REPAIRS AND MAINTENANCE:
-----------------------
Tenant, from time to time, at its expense, shall make all necessary
repairs and perform all necessary maintenance to the Property and the land and
building improvements constituting a part thereof, including, without
limitation, all structural repairs and replacements. Landlord's reasonable
determination that repairs or maintenance are necessary shall be binding on
Tenant.
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6. REMODELING AND LIENS:
--------------------
A. Tenant shall make no material alterations in or additions or
improvements to the Property without first obtaining the written consent of
Landlord, and all alterations, additions and improvements made by Tenant shall
become the absolute property of Landlord on the termination of this Lease or the
vacation of the Property by Tenant unless Landlord elects to require Tenant to
remove the same.
B. Any liens filed against the Property in connection with alterations,
renovations, additions or improvements by Tenant or any other liens filed
against the Property by, through or under the Tenant shall be removed by Tenant,
at its expense, within 30 days of filing.
7. UTILITIES:
---------
Tenant, at its expense, shall obtain and pay for all necessary or
required utility and other services for the Property. Landlord shall not be
liable for any damages Tenant may suffer because of any unavailability of or
interruption or other deficiency in such services.
8. INSPECTION:
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Tenant agrees to permit persons authorized by Landlord to inspect the
Property at any reasonable time for any proper purpose, including, without
limitation, review of compliance with Tenant's obligations hereunder and
inspection by a prospective purchaser, mortgagee or tenant of the Property;
however, Landlord shall have no duty to inspect.
9. INDEMNITY AND INSURANCE:
-----------------------
A. Tenant covenants at all times to save Landlord harmless from all
expenses, losses, costs, claims, liability or damages (hereinafter called
"Damages") relating to the Property including, without limitation, Damages that
may occur or be claimed with respect to any party, person or persons, entity,
property or chattels on or about the Property, or to the Property itself
resulting from any act done or omission by or through the Tenant, or resulting
from the Tenant's use, non-use possession of the Property, and any and all
Damages resulting therefrom, except such Damages as may result from and be
caused by the deliberate misconduct or gross negligence of Landlord.
B. (i) Tenant shall obtain and maintain, at Tenant's sole cost and
expense, but for the mutual benefit of Landlord and Tenant, comprehensive
general liability insurance with bodily injury and property damage liability
coverage in an amount to be reasonably determined, from time to time, by
Landlord. Landlord, Tenant and any mortgagee of the Property, shall be the
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named insureds on each such policy(ies). Landlord's determination of the amount
of coverage is for Landlord's benefit, and does not constitute a representation
of sufficiency to Tenant or any third party.
(ii) Tenant, at its expense, shall also obtain fire and extended
coverage insurance for the Property in the amount equal to the replacement cost
of the Property, naming Landlord, Tenant and any mortgagee of the Property as
insureds, as their interests may appear.
(iii) All such policies of insurance shall be written by responsible
and accredited companies of recognized standing authorized to do business in the
State of Florida, shall be written in standard form and shall provide that the
policies shall not be cancelable except upon 30 days written notice to Landlord
and any mortgagee of the Property. In addition such policies shall cover such
loss contingencies and hazards as are commonly covered in policies issued on
similar properties in the area of the Property, or as may otherwise be required
by any mortgagee of the Property. Tenant shall deliver to Landlord a copy of
such policies or insurance binders acceptable to Landlord upon the execution of
this Lease, and a copy of any renewal policy shall be delivered to Landlord and
to any mortgagee of the Property at least 15 days prior to the termination date
of any expiring policy. Such policies shall be delivered endorsed "Premiums
Paid" by the company or agency issuing the same or be accompanied by other
evidence satisfactory to Landlord that the premiums thereon have been paid. Each
and every mortgagee of the Property shall agree to disburse, in accordance with
its standard construction loan practices, amounts it receives from fire and
extended coverage insurance policies for use by Tenant in repairing, rebuilding
or reconstructing the Property in accordance with the obligations of Tenant
hereunder.
10. PERSONAL PROPERTY; LOSS OF BUSINESS:
-----------------------------------
All personal property of every kind and description that may at any
time be in, at or on the Property shall be kept in, at or on the Property at
Tenant's sole risk, or at the risk of those claiming under Tenant. Landlord
shall not be liable for, without limitation, any damage to said personal
property or or any loss secured by the business or occupation of Tenant however
arising, whether from the bursting, overflowing or leaking of water, sewer or
steam pipes, from the heating, air conditioning or plumbing fixtures, from
electric wires, from gas or odors, or whether caused by another person in the
Property or caused in any other manner whatsoever except such as may result from
and be caused by the deliberate misconduct or gross negligence of the Landlord.
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11. DAMAGE BY FIRE OR OTHER CASUALTY:
--------------------------------
A. If the Property is so damaged by fire or other casualty that it
cannot reasonably be repaired within 120 days after the casualty, Landlord, at
its option, may (1) terminate the term of this Lease by written notice to
Tenant, in which event rent shall be prorated as of the date of the fire or
other casualty, if Tenant vacates the Property at that time, or up to such date
thereafter that Tenant vacates the Property, or (2) require Tenant to promptly
repair and reconstruct the Property to substantially the same condition, or
better, as existed immediately prior to such casualty loss. For that purpose,
Landlord shall make available to Tenant the insurance proceeds, if any, relating
to such casualty loss, but Tenant's obligation to repair and reconstruct is not
limited by the amount of insurance proceeds. Landlord may provide for the
payment of such insurance proceeds in a manner which assures Landlord of
satisfactory, lien-free completion of such repair or reconstruction.
B. If the Property is damaged by fire or other casualty but to a lesser
extent than specified in Paragraph A, Tenant shall promptly repair and
reconstruct the Property to substantially the same condition, or better, as
existed immediately prior to such casualty loss. For that purpose, Landlord
shall make available to Tenant the insurance proceeds, if any, relating to such
casualty loss, but Tenant's obligation to repair and reconstruct is not limited
by the amount of insurance proceeds. Landlord may provide for the payment of
such insurance proceeds in a manner which assures Landlord of satisfactory,
lien-free completion of such repair or construction.
C. Rent shall not be abated or reduced during any period in which the
Property is being repaired or reconstructed or is otherwise untenantable, except
after any termination of the Lease as provided in Paragraph A.
12. EMINENT DOMAIN:
--------------
A. If the Property or any part thereof is condemned or appropriated by
any public authority during the term of this Lease in a manner so as to affect
materially and adversely the use thereof by Tenant, Landlord, at its option, may
(1) terminate this Lease by written notice to Tenant, in which event such rent
as shall be due from Tenant to Landlord to the date of the taking of possession
of the Property by the condemning or appropriating authority, if Tenant wholly
vacates the Property at that time, or up to such date thereafter that Tenant
wholly vacates and ceases to use the Property, shall be paid by Tenant to
Landlord at the rate herein provided, or (2) require Tenant to repair and
reconstruct the Property to as nearly as practicable the same condition, or
better, as existed immediately prior to such taking
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of possession, in which event Landlord shall deliver the proceeds relating to
such condemnation or appropriation to Tenant. (Landlord may provide for the
payment of such proceeds in a manner which assures Landlord of satisfactory,
lien-free completion of such repair Or construction.)
B. If the Property or any part thereof is condemned or appropriated by
any public authority during the term of this Lease in a manner which does not
materially and adversely affect the use thereof by Tenant, Tenant shall repair
and reconstruct the Property to as nearly as practicable the same condition, or
better, as existed immediately prior to such taking of possession, in which
event Landlord shall deliver the proceeds relating to such condemnation or
appropriation loss to Tenant. (Landlord may provide for the payment of such
proceeds in a manner which assures Landlord of satisfactory, lien-free
completion of such repair or construction.)
C. As long as the term of this Lease remains in effect, rent shall not
be abated during or after the period in which the Property is being repaired or
reconstructed. Landlord shall be entitled to receive, and except for proceeds to
be delivered to Tenant as provided above, Landlord shall retain as its sole
property, all proceeds of any condemnation award for, or relating to, the
Property (including the leasehold created hereby), but Tenant may make a
separate claim against the condemning authority for the value of its trade
fixtures and costs of relocation.
13. ABANDONMENT:
-----------
Should Tenant abandon the Property, Landlord may enter the same, using
such force as may be necessary, and change the locks on the doors, all without
liability to Tenant. Thereafter Landlord may use the Property for any desired
purpose, with or without terminating this Lease in accordance with provisions of
this Lease concerning default.
14. ABANDONED PROPERTY:
------------------
Should Tenant leave any property in the Property after the termination
of this Lease for whatever cause, or after the abandonment of the Property by
Tenant, then at Landlord's option, (i) such property shall become the sole
property of Landlord without any liability on the part of Landlord to account
for the proceeds from the disposition, if any, of the property, or (ii) Landlord
may remove and destroy or discard such property, and Tenant shall reimburse
Landlord for all expenses incurred in doing so.
15. DEFAULT
------
A. Should Tenant fail to pay any installment of Annual Base Rent, or
any Additional Rent, or any other sum herein
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required to be paid to Landlord within 10 days after such payment is first due
and payable; or should Tenant abandon or vacate the Property before the end of
the term of this Lease; or should Tenant fail to maintain any required
insurance; or should Tenant fail to perform any covenant or to comply with any
condition herein provided to be performed or complied with by it (other than the
payment of money and maintenance of insurance) within 30 days after receipt by
Tenant of written notice thereof from Landlord (or, in the event such failure
can be removed or corrected, but cannot be removed or corrected within such
30-day period, in the event Tenant does not commence to remove or correct such
failure with said 30-day period and thereafter diligently pursue such removal or
correction to completion); or should any proceeding in bankruptcy or under any
State or Federal law relating to the relief of debtors be filed by or against
Tenant; or should a receiver be appointed of any of the property of Tenant so as
to directly affect the fulfillment of the obligations of Tenant hereunder; then
and in any such event (herein called a "default") Landlord, at its option,
immediately or at any time during the continuation of such default may (i)
terminate Tenant's right to possession of the Property without terminating this
Lease, and thereupon Landlord may enter and retake the Property without further
notice or demand and may, without being required to, relet the Property as agent
of Tenant for the balance of the term and receive the rent therefor, applying
the same first to the payment of expenses of such re-entering and reletting and
then to the payment of all rent due or to become due under the terms of this
Lease, and Tenant shall pay any deficiency, or (ii) declare this Lease
terminated. In retaking possession of the Property, Landlord may use such force
as may be necessary so long as the conduct of Landlord does not constitute a
breach of peace.
B. If Tenant is in default hereunder, then, at the option of the
Landlord, the Annual Base Rent for the entire remaining term of this Lease shall
become immediately due and payable and in case Tenant is declared bankrupt or
voluntarily offers to creditors terms of composition, or in case a receiver is
appointed to take charge of and conduct the affairs of Tenant, or if an order
for relief is granted for or against Tenant, such claim for unpaid installments
of rent due under this Lease shall constitute a debt provable in bankruptcy or
receivership.
C. To the maximum extent permitted by law, Tenant covenants and agrees
to pay and discharge all reasonable costs and expenses that shall be incurred by
Landlord, including attorney's fees, in enforcing the covenants and agreements
of this Lease.
16. CUMULATIVE REMEDIES:
--------------------
The remedies to which Landlord may resort under this Lease
are cumulative and are not intended to be exclusive of, and
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19
Landlord shall be entitled to exercise, any other remedy to which Landlord may
be entitled by law or in equity. The failure of Landlord to insist in any one or
more cases on strict performance of any provision of this Lease or to exercise
any right herein contained shall not constitute a waiver in the future of such
right. Acceptance by Landlord of rent or other payment or acceptance of
performance required herein with knowledge of a breach by Tenant of any
provision hereof shall not constitute a waiver of such breach, nor shall any
acceptance of rent or other payment in a lesser amount than herein provided for
operate or be construed in any other manner other than as a payment on account
of the earliest rent or other charge then unpaid by Tenant.
17. SUBLEASE OR ASSIGNMENT:
----------------------
Tenant may not assign this Lease or sublet all or any part of the
Property without the prior written consent of Landlord, which consent shall not
be withheld unreasonably, and approval by Landlord of any such assignment or
subletting shall not relieve Tenant of any obligations hereunder.
18. SURRENDER:
---------
Except as otherwise specifically provided herein, Tenant agrees to
surrender to Landlord the Property upon the expiration or termination of this
Lease, in as good condition and repair as the same shall be at the commencement
of the term provided for herein, ordinary wear and tear excepted. No tenancy of
any duration, other than a tenancy at will, shall be created by Tenant's holding
over beyond the end of said term.
19. TRADE FIXTURES:
--------------
Not later than the expiration or termination of the term of this Lease,
Tenant may remove all of the trade fixtures and signs owned by Tenant which can
be removed without injury to or defacement of the Property, provided all rents
have been paid in full and all damage to the Property is promptly repaired.
20. SUBORDINATION:
-------------
This Lease shall be subordinate to the lien of each and every mortgage
or deed of trust of the Property or any part thereof made by Landlord, whether
previously or hereafter made, unless the holder of any such mortgage or deed of
trust elects by recorded instrument that this Lease shall be prior to such
mortgage or deed of trust. Such subordination shall be self-executing and
effective without any further action by Tenant or Landlord; provided, that
Tenant shall not be required to subordinate its interest under this Lease to the
lien of any mortgage or deed of trust hereafter made unless the mortgagee shall
execute a Subordination, Attornment and Nondisturbance Agreement which shall
provide in substance that this Lease shall not be terminated so long as Tenant
is not in default of its
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20
obligations hereunder and that Tenant shall attorn to such mortgagee or its
successor in interest upon foreclosure or sale. Tenant agrees, from time to
time, immediately upon request by Landlord, promptly to execute such
instruments, certificates and tenant estoppel letters as may be requested by
Landlord to evidence and confirm such subordination and promptly to deliver such
instruments, certificates and letters to mortgagees or prospective mortgagees
designated by Landlord.
21. COVENANT OF QUIET ENJOYMENT:
---------------------------
Landlord covenants that Tenant, having performed its covenants and
obligations herein set forth, shall have quiet and peaceable possession of the
Property on the terms and conditions herein provided, free and clear of any
claim by, from, through or under any person lawfully claiming an interest in the
Property from or through Landlord.
22. BENEFITS:
--------
The terms, provisions and conditions of this Lease shall inure to the
benefit of and be binding upon the respective successors and assigns of Landlord
and Tenant, but no assignment made by Tenant contrary to the provisions of this
Lease shall vest in any assignee any right, title or interest in or to this
Lease or the Property, or any part thereof.
23. NOTIFICATION:
------------
Notices required or permitted to be given under this Lease shall be
sent by registered or certified mail, return receipt requested, postage prepaid,
at the addresses first set forth above, or to such other addresses as may be
designated by either party to the other by like mailing.
24. SEVERABILITY:
------------
If any clause or provision of this Lease is illegal, invalid or
unenforceable, then it is the intention of the parties that the remainder of
this Lease shall not be affected thereby, and in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there shall
be added as a part of this Lease a clause or provision as similar in terms to
such illegal, invalid, or unenforceable clause or provision as may be possible
and be legal, valid and enforceable. If such invalid provision is, in the
reasonable determination of Landlord, essential to this Lease, Landlord has the
right to terminate this Lease on written notice to Tenant.
25. TIME:
----
Time is of the essence with respect to all obligations and rights of
the parties under this Lease.
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21
26. FLORIDA LAW:
-----------
This Lease shall be governed by and construed in accordance with the
laws of the State of Florida.
27. MEMORANDUM OF LEASE:
-------------------
A memorandum of lease in proper form for recording purposes shall be
executed upon request by either party. This Lease shall not be recorded.
IN WITNESS WHEREOF, this Lease has been executed this 11 day of SEPT. ,
1990.
Signed and acknowledged
in the presence of:
(as to Landlord) Landlord:
PUNTA GORDA BUILDING ASSOCIATES,
a Florida general partnership
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
--------------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: Xxxxxx X. Xxxxxxxx, M.d.
------------------- -----------------------
/s/ Xxxxxxx X. Xxxxxxx Title: Partner
--------------------------------- ------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
-------------------
(as to Tenant) Tenant:
CHARLOTTE COUNTY RADIATION THERAPY
REGIONAL CENTER, INC.
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
--------------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: Xxxxxx X. Xxxxxxxx, M.d.
------------------- -----------------------
/s/ Xxxxxxx X. Xxxxxxx Title: Partner
--------------------------------- ------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
-------------------
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22
STATE OF FLORIDA )
) SS:
COUNTY OF CHARLOTTE )
The foregoing instrument was acknowledged before me this 11 day of
SEPT. , 1990, by Xxxxxx X. Xxxxxxxx, M.D., an authorized partner of PUNTA GORDA
BUILDING ASSOCIATES, a Florida general partnership, on behalf of the
partnership.
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Notary Public
STATE OF FLORIDA )
) SS:
COUNTY OF CHARLOTTE )
The foregoing instrument was acknowledged before me this 11 day of
SEPT. , 1990, by Xxxxxx X. Xxxxxxxx, M.D., President of CHARLOTTE COUNTY
RADIATION THERAPY REGIONAL CENTER, INC., a corporation organized under the laws
of the State of Florida, on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Notary Public
This instrument prepared by:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxx, Xxxxxxxxxx & Xxxxxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
(000) 000-0000
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