EXHIBIT 10.4
LEASE
THIS LEASE
(“Lease”) is made and entered into as of the 12
th
day of
March, 2007, by and between, Theriac Enterprises of Casa Grande,
LLC, whose business address is 2234 Colonial Boulevard, Fort Myers,
Florida 33907 (“Landlord”), and Arizona Radiation
Therapy Management Services Inc. whose business address is 2234
Colonial Blvd. Fort Myers, Florida 33907
(“Tenant”).
W I T N E S S E T
H:
ARTICLE 1
TERMS
1.1 Premises . Landlord
hereby demises and leases to Tenant and Tenant hereby hires and
rents from Landlord the premises located within 1281 E. Cottonwood
Lane, Casa Grande, Arizona 85222 (the “Building”), and
more particularly described in Exhibit A to this Agreement
(“Premises”) upon the terms, covenants and conditions
set forth herein, which Premises has a floor area containing the
approximate square footage of 9,943 square feet.
1.2 Use . The Premises are to
be used for a medical office and radiation therapy center and
ancillary services.
1.3 Commencement
of Term . The commencement of the Term of this Lease under
which Tenant shall be obligated to commence payment of Minimum Rent
and Additional Rent shall be the 12 th
day of
March, 2007 (“Commencement Date”).
1.4 Length of the Term . The
term of this lease period is for ten years (10) years
(“Term”). The starting date of this lease is the
Commencement Date and, unless this Lease is renewed in accordance
with Article 4 below, the ending date is the 28th day of February,
2017 (“Expiration Date”).
1.5 Tenant’s Proportionate
Share . Tenant shall be responsible for its proportionate share
(the “Tenant’s Proportionate Share”) of all
operating costs, taxes, assessments, insurance and all other
expenses related to the Building based on the rentable square
footage of the Premises divided by the rentable square footage for
the Building, which is currently 69.94% (9,943 s.f./14,216
s.f.).
ARTICLE 2
RENT
2.1 Rent . Minimum rent shall
be Thirty Nine Thousand Eighty Three Dollars and Thirty Nine Cents
($39,083.39) per month (“Minimum Rent”). Tenant shall
pay to Landlord without previous demand thereof and without any
abatement, reduction, setoff or deduction whatsoever, the Minimum
Rent (together with any applicable sales tax and local taxes if the
same are ever required by law), payable in equal monthly
installments, in advance, on the first day of each and every
calendar month throughout the Term of this Lease. The Minimum Rent
shall commence to accrue on the Commencement Date. The first such
monthly installments of Minimum Rent shall be due and payable to
Landlord no later than the Commencement Date and each subsequent
monthly installment shall be due and payable to Landlord on the
first day of each and every calendar month following the
Commencement Date during the Term hereof. If the Commencement Date
is a date other than the first day of the month, Minimum Rent and
other charges for the period commencing with and including the
Commencement Date through the first day of the following month
shall be prorated at the rate of one-thirtieth (1/30) of the
monthly Minimum Rent per day.
In addition, Tenant shall pay as
Additional Rent monthly payments of Tenant’s Proportionate
Share of all applicable taxes, assessments and insurance on the
Building. This amount will be Tenant’s Proportionate Share
times 1/12th of the bill for annual real estate and assessment
taxes and 1/12th of the annual bill on insurance. Estimated figures
for taxes and insurance monthly rate will be produced within ten
(10) days after the signing of this Lease. Each year Landlord
will produce any insurance, real estate tax and assessment bills to
the Tenant to show how the estimated taxes and insurance were
computed as Additional Rent. In the event of any overage or
underage due to the actual amounts owed and the payments made based
on the estimated amounts during any Lease year, Landlord shall
reimburse to Tenant the amount of any overage paid by Tenant or
Tenant shall pay to Landlord the amount of any underage due from
Tenant in either case within thirty (30) days of the delivery
of the bills to Tenant as herein provided.
2.1.1 There will be an increase in
the Minimum Rent starting on the first anniversary of the lease if
the Consumer Price Index increases over the immediately preceding
year. Minimum Rent specified in this lease shall be subject to
increase in accordance with changes in the Consumer Price Index for
Urban Wage Earners and Clerical Workers (CPI-W) as promulgated by
the Bureau of Labor Statistics of the United States Department of
Labor, using the year of the Commencement Date as a base of 100. On
each anniversary date there will be a rent adjustment based on the
percentage increase in the Consumer Price Index from the
immediately preceding year. If the Consumer Price Index goes down
the rent will not change for that year. Consumer Price Index
increases will apply on the anniversary date of each year of the
Commencement Date. The percentage increase in the Consumer Price
Index will increase the minimum rent for that year.
2.1.2 In the event that the Consumer
Price Index ceases to incorporate significant number of items, or
if a substantial change is made in the method of establishing such
Consumer Price Index shall be adjusted to the figure that would
have resulted had no change occurred in the manner of computing
such Consumer Price Index, or a successor or substitute index, is
not available, a reliable governmental or other nonpartisan
publication, evaluating the information for use in determining the
Consumer Price Index, shall be used in lieu of such Consumer Price
Index.
2.2 Late Charge . Tenant
shall pay to Landlord a late charge equal to five percent
(5%) of the monthly payment of Minimum Rent, Additional Rent
and any other payment or charge due hereunder if any such amount is
received by Landlord more than five (5) days after the same
shall be due, such amount being the agreed upon liquidated damages
solely to defray the additional administrative expenses incurred by
Landlord in processing such payment.
2.3 Interest on Past Due Rent
. If Tenant shall fail to pay, when the same is due and payable,
Minimum Rent, or Additional Rent, such unpaid amounts shall bear
interest from the due date thereof to the date of payment, at the
prime interest rate of the JPMorgan Chase Bank as of such due date,
plus fifteen percent (15%) (“Default
Date”).
2.4 Definition of Rent . The
term “Rent” shall refer collectively to Minimum Rent
and Additional Rent. The term “Additional Rent” is
sometimes used herein to refer to any and all other sums payable by
Tenant hereunder, including, but not limited to, parking charges
and sums payable on account of default by Tenant. All Rent shall be
paid by Tenant without offset, demand or other credit, and shall be
payable only in lawful money of the United States of America which
shall be legal tender in payment of all debts and dues, public and
private, at the time of payment. All sums payable by Tenant
hereunder by check shall be obtained against a financial
institution located in the United States of America. The rent
shall be paid by Tenant at 2234 Colonial Blvd. Fort Myers, FL
33907.
2.5 Rent Taxes . In addition
to Minimum Rent and Additional Rent, Tenant shall and hereby agrees
to pay to Landlord each month a sum equal to any sales tax, tax on
rentals and any other similar charges now existing or hereafter
imposed, based upon the privilege of leasing the space leased
hereunder or based upon the amount of rent collected
therefore.
ARTICLE 3
NET LEASE
3.1 Net Lease . This Lease
shall be deemed and construed to be a triple net lease and, except
as herein otherwise expressly provided, the Landlord shall receive
the fixed Minimum Rent and Additional Rent and all other payments
hereunder to be made by the Tenant absolutely free from any
charges, assessments, imposition, expenses or deductions of any
kind and every kind or nature whatsoever. Tenant is to pay
Tenant’s Proportionate Share of all real estate taxes and
assessments and any and all taxes of any nature applicable to the
Building. Tenant is to pay Tenant’s Proportionate Share of
all insurance and any and all costs for repairs, replacements,
maintenance and improvements, expenses for common areas, utilities,
and association fees, if any. Tenant also is responsible
for:
3.1.1 Its proportionate share of any
parking lot repairs, maintenance and replacements.
3.1.2 The entire amount due for
security, pest control or contracts for air conditioner and
cleaning services, etc., if any, for for the Premises.
ARTICLE 4
OPTION TO RENEW
4.1 Option to renew .
Provided that Tenant is not then in default under any of the
covenants, terms, conditions, and provisions of this Lease beyond
any applicable notice and cure period, then Tenant shall have three
(3) options to renew this Lease (each an “Option”)
for consecutive five (5) year option periods, provided that,
in order to exercise this Option, Tenant is required to give to
Landlord written notice thereof not less than six (6) months
before the date of expiration of the Term of this Lease or the then
expiring option period. Any renewal pursuant to this Option shall
be on the same terms and conditions as are contained in this
Lease.
ARTICLE 5
INSURANCE AND
INDEMNITY
5.1 Landlord’s
Insurance . At all times during the Term, Landlord will carry
and maintain:
(a) Fire and extended coverage
insurance covering the Building in which the Premises is located,
its equipment, and the Common Areas;
(b) Bodily injury and property
damage insurance; and
(c) Such other insurance as Landlord
reasonably determines from time to time.
The insurance coverage and amounts
in this Section 5.1 will be determined by Landlord, based on
coverages carried by prudent owners of comparable buildings in the
vicinity of the Premises.
5.2 Tenant’s Insurance
. At all times during the Term, Tenant will carry and maintain, at
Tenant’s expense, on an occurrence basis, the following
insurance, in the amounts and on the forms specified below or such
other amounts and on such other forms as Landlord may from time to
time reasonably request, with insurance companies satisfactory to
Landlord:
(a) Bodily injury to or personal
injury to or death of any person, or more than one (1) person,
or for damage to property in an amount of not less than $1 million
combined single limit each Occurrence/General Aggregate and
including a per location General Aggregate endorsement. All such
insurance will be written on the most current occurrence ISO
Commercial General Liability Form including without limitation,
personal injury and contractual liability coverage for the
performance by Tenant of the indemnity agreements set for in this
Lease, which insurance shall include a waiver of subrogation rights
in favor of Landlord;
(b) Insurance covering all of
Tenant’s furniture and fixtures, machinery, equipment, and
any other personal property owned and used in Tenant’s
business and found in, on, or about the Premises, and any leasehold
improvements to the Premises in an amount not less than the full
replacement cost under Standard Fire and Extended Coverage Policy
and all other risks of direct physical loss as insured against
under Special Form (“all risk of direct physical loss”
coverage). All such insurance will be written on the most current
ISO Commercial Property Form. All policy proceeds will be used for
the repair or replacement of the property damaged or destroyed;
except, however, if this Lease ceases under the provisions of
Article 15, Tenant will be entitled to any proceeds resulting from
damage to Tenant’s furniture and fixtures, machinery,
equipment, and any other personal property;
(c) Worker’s compensation
insurance insuring against and satisfying Tenant’s
obligations and liabilities under the worker’s compensation
laws of the State of Arizona, and Employer’s Liability
Insurance in the limits required by the laws of the State of
Arizona but in an amount not less than $500,000.00
aggregate;
(d) Such other insurance (including
without limitation plate glass insurance), in such amounts as
Landlord or its lender may reasonably require of Tenant upon thirty
(30) days’ prior written notice.
5.3 Forms of Policies . All
policies of liability insurance which Tenant is obligated to
maintain according to this Lease (other than any policy of
worker’s compensation insurance) will name Landlord and such
other persons or firms as Landlord specifies from time to time as
additional named insureds. Original or copies of original policies
and certificates of insurance on the most current ACORD form
(together with copies of the endorsements naming Landlord and any
others specified by Landlord as additional insureds) and
evidence of the payment of all premiums of such
policies will be delivered to Landlord prior to the earlier of the
Commencement Date or Tenant’s occupancy of the Premises and
from time to time at least thirty (30) days prior to the
expiration of the term of each such policy. Tenant’s insurer
shall have a Best Rating of at least A and be assigned a financial
size category of at least Class X as rated in the most recent
edition of “Best’s Key Rating Guide” for
insurance companies. All liability policies maintained by Tenant
will contain a provision that Landlord and any other additional
insureds, although named as an insured, will nevertheless be
entitled to recover under such policies for any loss sustained by
Landlord and such other additional insureds, its agents, and
employees as a result of the acts or omissions of Tenant. All such
policies maintained by Tenant will provide that they may not be
terminated or amended except after thirty (30) days’
prior written notice to Landlord. All required insurance policies
maintained by Tenant must be written as primary policies, not
contributing with and not supplemental to the coverage that
Landlord carries or may carry.
5.4 Waiver of Subrogation .
Landlord and Tenant each waive any and all rights to recover
against the other, or against the officers, directors,
shareholders, partners, joint venturers, employees, agents,
customers, invitees, or business visitors of such other party, for
any loss or damage to such waiving party arising from any cause
covered by any property or other insurance required to be carried
by such party pursuant to this Article 5 or any other property
insurance actually carried by such party. Landlord and Tenant from
time to time will cause their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all
property insurance policies carried in connection with the Premises
or the Building in which the Premises are located, or the contents
thereof. Tenant agrees to cause all other occupants of the Premises
claiming by, under, or through Tenant to execute and deliver to
Landlord such a waiver of claims and to obtain such waiver of
subrogation rights endorsements.
5.5 Indemnification . Tenant
shall indemnify, defend and save Landlord harmless from and against
any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or
destruction of property arising from or out of any occurrence in,
upon or at the Premises, or any part thereof, or the occupancy or
use by Tenant of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, servants, lessees or concessionaires,
except which result from Landlord’s gross negligence or
willful misconduct. Landlord shall indemnify, defend and save
Tenant harmless from and against any and all claims, actions,
damages, liability and expense in connection with loss of life,
personal injury and/or damage to or destruction of property arising
from or out of any occurrence in, upon or at the Premises
occasioned in whole or in part by any negligent act or omission by
Landlord, its agents, contractors, employees, servants or
concessionaires. In case the indemnifying party shall be made a
party to any litigation commenced by or against the other party,
then such other party shall protect and hold the indemnified party
harmless and pay all costs and attorney’s fees incurred by
the indemnified party in connection with such litigation, and any
appeals thereof. The defaulting party shall also pay all costs,
expenses and reasonable attorney’s fees that may be incurred
or paid by the other party in enforcing the covenants and
agreements in this Lease.
ARTICLE 6
UTILITIES
6.1 Utilities . Tenant shall
be solely responsible for and shall promptly pay all charges for
water, gas, electricity, garbage, and any other utility used and
consumed in the Premises. In the event that such utilities charges,
or any portion thereof, shall be separately metered for the
Premises, Tenant shall pay such meter charges directly to the
utility company supplying such service. In the event, however, that
such utilities charges, or any portion thereof, shall not be
separately metered for the Premises, tenant shall pay to Landlord
its pro rata share of such non-metered charges. If any such charges
are not paid when due, Landlord may, at its option pay the same,
and any amount so paid by Landlord shall thereupon become due to
Landlord from tenant as additional rent. In no event, however,
shall Landlord be liable for an interruption or failure in the
supply of any such utilities to the Premises.
ARTICLE 7
SUBORDINATION AND
ATTORNMENT
7.1 Subordination . Tenant
hereby subordinates its rights hereunder to the lien of any ground
or underlying leases, any mortgage or mortgages, or the lien
resulting from any other method of financing or refinancing, now or
hereafter in force against the Premises and to all advances made or
hereafter to be made upon the security thereof so long as the
lessor or mortgagee or other lien holder thereunder agrees not to
disturb Tenant’s possession of the Premises or rights under
this Lease so long as Tenant is not in default hereunder. This
Section shall be self-operative and binding upon Tenant and any
such lessor, mortgagee or other lien holder, and no further
instrument of subordination shall be required by any mortgagee, but
Tenant agrees upon request of Landlord, from time to time, to
promptly execute and deliver any and all documents evidencing such
subordination and non-disturbance, and failure to do so shall
constitute a default under this Lease.
7.2 Attornment . In the event
any proceedings are brought for the foreclosure of, or in the event
of exercise of the power of sale under, any mortgage covering the
Premises or in the event a deed is given in lieu of foreclosure of
any such mortgage, Tenant shall attorn to the purchaser, or grantee
in lieu of foreclosure, upon any such foreclosure or sale and
recognize such purchaser, or grantee in lieu of foreclosure, as the
Landlord under this Lease.
7.3 Financing Agreements .
Tenant shall not enter into, execute or deliver any financing
agreement that can be considered as having priority on the Premises
to any mortgage or deed of trust that Landlord may have placed upon
the Premises.
ARTICLE 8
ASSIGNMENT AND
SUBLETTING
Except as herein provided, Tenant
may not assign this lease in whole or in part, nor sublet all or
any portion of the Premises, without the prior written consent of
Landlord in each instance, which shall not be unreasonably withheld
or delayed and shall be deemed granted if not given or denied in
writing within thirty (30) days from Tenant’s written
request therefor. Further, notwithstanding the foregoing, such
consent shall not be required if such assignment or sublease is
from Tenant to a wholly owned subsidiary of Tenant or to a wholly
owned subsidiary of Tenant’s parent, if any. The consent by
Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent
assignment or subletting. No assignment,
under letting, occupancy or collection shall be
deemed acceptance of the assignee, subtenant or occupant as Tenant,
or a release of Tenant from the further performance by Tenant of
the covenants on the part of Tenant herein contained. This
prohibition against any assignment or subleasing is by operation of
law, legal process, receivership, bankruptcy or otherwise, whether
voluntary or involuntary. Landlord by its acceptance hereof
acknowledges that Tenant may mortgage or collaterally assign its
interest in and to this Lease and the leasehold estate created
hereunder to institutional lenders providing financing to Tenant,
to Tenant’s parent, if any, or to any subsidiary or affiliate
of Tenant. Tenant shall remain fully liable on this Lease and shall
not be released from performing any of the terms, covenants and
conditions hereof or any rents or other sums to be paid hereunder.
Tenant acknowledges and agrees that any and all right and interest
of the Landlord in and to the Premises, and all right and interest
of the Landlord in this Lease, may be conveyed, assigned or
encumbered at the sole discretion of the Landlord at any time. In
addition, notwithstanding the foregoing to the contrary, Tenant
shall have the right to license or sublet all or any portion of the
Premises to a physician, physician group, professional corporation
or other entity licensed to practice medicine in the State of
Arizona or to such other individuals or entities providing
health-related services, without first obtaining Landlord’s
prior consent.
ARTICLE 9
FACILITIES
9.1 Control of Common Areas by
Landlord . All automobile parking areas, driveways, entrances
and exits thereto, and other facilities furnished by Landlord at or
near the Premises, including employee parking areas, the truck way
or ways, loading docks, package pick-up stations, pedestrian
sidewalks and ramps, landscaped areas, exterior stairways, and
other areas and improvements provided by Landlord for the general
use, in common, of tenants, their officers, agents, employees and
customers, shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from
time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in
this Article. Landlord shall have the right to construct, maintain
and operate lighting facilities on all said areas and improvements;
from time to time to change the area, level, location and
arrangement of parking areas and other facilities hereinabove
referred to and to restrict parking by tenants, their officers,
agents and employees to employee parking areas. Landlord shall not
have any duty to police the traffic in the parking areas. Landlord
shall provide not less than 55 parking spaces within the parking
area, which Landlord warrants meets all parking requirements of any
governmental authority, which shall include not less than 5
handicapped spaces.
ARTICLE 10
TENANT’S FIXTURES AND
IMPROVEMENTS
10.1 Alterations by Tenant .
Tenant shall not make any alterations, renovations, improvements or
other installations (collectively “Alterations”) in, on
or to any part of the Premises (including, without limitation, any
alterations of the front, signs, structural alterations, or any
cutting or drilling into any part of the Premises or any securing
of any fixture, apparatus, or equipment of any kind to any part of
the Premises) unless and until Tenant shall have caused plans and
specifications therefor to have been prepared, at Tenant’s
expense, by an architect or other duly qualified person and shall
have obtained Landlord’s approval thereof, which shall not be
unreasonably withheld or delayed and shall be deemed granted if not
approved or denied in writing within thirty (30) days of
Tenant’s written request therefor. Tenant shall submit to
Landlord detailed drawings and plans of the proposed Alterations at
the time
Landlord’s approval is sought. If such
approval is granted, Tenant shall cause the work described in such
plans and specifications to be performed, at its expense, promptly,
efficiently, competently and in a good and workmanlike manner by
duly qualified and licensed persons or entities approved by
Landlord, using first grade materials. All such work shall comply
with all applicable codes, rules, regulations and ordinances. The
Tenant shall at all times maintain fire insurance with extended
coverage in an amount adequate to cover the cost of replacement of
all alterations, decorations, additions or improvements to the
Premises by Tenant in the event of fire or extended coverage loss.
Tenant shall deliver to the Landlord certificates of such fire
insurance policies, which shall contain a clause requiring the
insurer to give the Landlord ten (10) days notice of
cancellation of such policies.
10.2
Mechanic’s/Construction Liens . No work performed by
Tenant pursuant to this Lease, whether in the nature of erection,
construction, alteration or repair, shall be deemed to be for the
immediate use and benefit of Landlord so that no mechanic’s
or other lien shall be allowed against the estate of Landlord by
reason of any consent given by Landlord to Tenant to improve the
Premises. Tenant shall place such contractual provisions as
Landlord may request in all contracts and subcontracts for
Tenant’s improvements assuring Landlord that no
mechanic’s/Construction liens will be asserted against
Landlord’s interest in the Premises or the property of which
the Premises are a part. Said contracts and subcontracts shall
provide, among other things, the following: That notwithstanding
anything in said contracts or subcontracts to the contrary,
Tenant’s contractors, subcontractors, suppliers and
materialmen (hereinafter collectively referred to as
“Contractors”) will perform the work and/or furnish the
required materials on the sole credit of Tenant; that no lien for
labor or materials will be filed or claimed by the Contractors
against Landlord’s interest in the Premises or the property
of which the Premises are a part; that the Contractors will
immediately discharge any such lien filed by any of the
Contractor’s suppliers, laborers, materialmen or
subcontractors; and that the Contractors will indemnify and save
Landlord harmless from any and all costs and expenses, including
reasonable attorney’s fees, suffered or incurred as a result
of any such lien against Landlord’s interest that may be
filed or claimed in connection with or arising out of work
undertaken by the Contractors. Tenant shall pay promptly all
persons furnishing labor or materials with respect to any work
performed by Tenant or its Contractors on or about the Premises. If
any mechanic’s or other liens shall at any time be filed
against the Premises or the property of which the Premises are a
part by reason of work, labor, services or materials performed of
furnished, or alleged to have been performed or furnished, to
Tenant or to anyone holding the Premises through or under Tenant,
and regardless of whether any such lien is asserted against the
interest of Landlord or Tenant, Tenant shall cause the same to be
discharged of record or bonded to the reasonable satisfaction of
Landlord within thirty (30) days of notice of such lien. If
Tenant shall fail to cause such lien to be so discharged or bonded
after being notified of the filing thereof, then, in addition to
being an Event of Default and any other right or remedy of
Landlord, Landlord may bond or discharge the same by paying the
amount claimed to be due, and the amount so paid by Landlord,
including reasonable attorneys’ fees incurred by Landlord
either in defending against such lien or in procuring the bonding
or discharge of such lien, together with interest thereon at the
Default Rate, shall be due and payable by Tenant to Landlord as
Additional Rent.
10.3 Tenant’s Leasehold
Improvements and Trade Fixtures; Landlord’s Lien Waiver .
All leasehold improvements (as distinguished from trade fixtures
and apparatus) installed in the Premises at any time, whether by or
on behalf of Tenant or by or on behalf of Landlord, shall not be
removed from the Premises at any time, unless such removal is
consented to in advance by Landlord;
and at the expiration of this Lease (either on
the Expiration Date or upon such earlier termination as provided in
this Lease), all such leasehold improvements shall be deemed to be
part of the Premises, shall not be removed by Tenant when it
vacates the Premises, and title thereto shall vest solely in
Landlord without payment of any nature to Tenant.
All trade fixtures, equipment,
furniture, inventory, and apparatus (as distinguished from
leasehold improvements) owned by Tenant and installed in the
Premises shall remain the property of Tenant and shall be removable
at any time, including upon the expiration of the Term; provided
Tenant shall not at such time be in default of any terms or
covenants of this Lease, and provided further, that Tenant shall
repair any damage to the Premises caused by the removal of said
trade fixtures and apparatus and shall restore the Premises to
substantially the same condition as existed prior to the
installation of said trade fixtures and apparatus and shall restore
the Premises to substantially the same condition as existed prior
to the installation of said trade fixtures and apparatus. Landlord
acknowledges that Tenant may from time to time or at any time grant
security interests in and to its trade fixtures, equipment,
furniture, inventory and apparatus in order to secure financing
provided to Tenant. Landlord consents to Tenant’s granting
one or more security interests in and to Tenant’s trade
fixtures, equipment, furniture, inventory and apparatus and
covenants and agrees that any security interest in and to the
Tenant’s trade fixtures, equipment, furniture, inventory and
apparatus in favor of any lender or financier thereof shall be
superior to any interest which Landlord may at any time have in and
to Tenant’s trade fixtures, equipment, furniture, inventory
and apparatus and Landlord, for itself, its successors and/or
assigns, does hereby subordinate any and all liens, encumbrances
and/or security interests which it has or may have in and to
Tenant’s trade fixtures, equipment, furniture, inventory and
apparatus, whether expressly created in this Lease or any other
instrument by and between Landlord and Tenant, or by virtue of any
statute or under common law. Landlord covenants and agrees with
Lender that, for so long as any lender or financier holds any lien,
encumbrance of security interest in and to Tenant’s trade
fixtures, equipment, furniture, inventory and apparatus, Landlord
will not assert against any of Tenant’s trade fixtures,
equipment, furniture, inventory and apparatus any statutory, common
law, contractual, or possessory lien or security interest,
including without limitation any right of levy or destraint for
rent, all of which Landlord does hereby waive and subordinate.
Landlord agrees that any such lender or financier may enter upon
the Premises at any time or from time to time, during normal
business hours, so long as Tenant is in possession of the Premises,
without charge, to inspect or remove any of Tenant’s trade
fixtures, equipment, furniture, inventory and apparatus therefrom.
Landlord covenants and agrees that Landlord will not hinder or
delay any such lender’s or financier’s actions in
enforcing its liens, security interests, and remedies with respect
to Tenant’s trade fixtures, equipment, furniture, inventory
and apparatus.
ARTICLE 11
MAINTENANCE AND REPAIR OF
PREMISES
11.1 Maintenance by Tenant .
Tenant shall at all times keep in good order, condition and repair
(which shall include the providing of replacements where necessary)
the entire Premises and the interior portions of the Building
(excepting only the interior portions of the Building being leased
by other parties) including, without limitation, the roof, the
exterior and all glass and show window moldings; and all
partitions, doors, interior walls, fixtures, equipment and
appurtenances thereto, including lighting, heating and plumbing
fixtures serving the Premises only and any air conditioning system
and sprinkler system situated within and/or servicing the Premises,
reasonable and ordinary wear and tear excepted. Said maintenance by
Tenant shall include, without limitation,
periodic painting as is reasonably necessary.
All cutting and patching of the roof area required for any reason
whatsoever for Tenant’s use and occupancy of the Premises
shall be performed by the Landlord’s roofing subcontractor.
In the event that Tenant causes such work to be performed by anyone
other than the Landlord’s roofing subcontractor, Landlord
will have the right, at Tenant’s sole cost and expense and
without notice to Tenant, to cause said work and the roof area
affected thereby to be inspected and/or repaired by
Landlord’s roofing subcontractor. All repairs, replacements,
or maintenance of any item or any type of the Premises, other than
building structure and any capital improvements thereto, is the
responsibility of the Tenant and to be paid for by Tenant. Tenant
shall be entitled to recover from Landlord the costs of all repairs
made by Tenant to the roof and interior portions of the Building
(excepting those repairs made solely for the benefit of the Tenant
and/or Premises) less the Tenant’s Proportionate Share.
Landlord shall endeavor to collect the amounts due from the other
tenant(s) within the Building upon receipt of the paid invoices
from Tenant; however, Landlord shall not be liable for any such
amounts unless and until the other tenant(s) within the Building
have provided such sums due to Landlord.
11.2 Maintenance by Landlord
. Other than maintenance obligations of Tenant as provided in
Section 11.1, Landlord shall be responsible for all other
maintenance to the Premises, the building in which the Premises are
located and all common and parking areas, including without
limitation all structural elements of the building, all
capita
