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Exhibit
10.2
LEASE
THIS LEASE
(“Lease”) is made and entered into as of the 17th day
of August, 2007, by and between, Marco Island Radiation Enterprise,
LLC whose business address is 2234 Colonial Blvd. Fort Myers, FL
33907 (“Landlord”), and 21 st Century Oncology, Inc. whose business address is 2234 Colonial
Blvd. Fort Myers, FL 33907
(“Tenant”).
WITNESSETH
:
ARTICLE 1
TERMS
1.1 Premises .
Landlord hereby demises and leases to Tenant and Tenant hereby
hires and rents from Landlord the premises located at 8625 Collier
Blvd. Naples, FL 34114-3550, 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 6,877 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 on or about the 17th day of August, 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 on or about the 16th day
of August, 2027 (“Expiration Date”).
ARTICLE 2
RENT
2.1 Rent . Minimum
rent shall be Thirty Seven Thousand Two Hundred Sixteen Dollars and
Sixty-Seven Cents (37,216.67) 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 applicable taxes,
assessments and insurance on the Premises. This amount will be 1/12
of the bill for annual real
estate and assessment taxes and 1/12 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 Chase Manhattan Bank,
N.A. 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 therefor.
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 for all
real estate taxes and assessments and any and all taxes of any
nature applicable to the Premises. Tenant is to pay for all
insurance and any and all costs for repairs, replacements,
maintenance and improvements. Tenant will also pay its pro rata
share of any and all expenses for common areas, utilities, and
association fees, if any. Tenant also is responsible
for:
3.1.1 It’s
proportionate share of any parking lot repairs, maintenance and
replacements.
3.1.2 Any security, pest
control or contrasts for air conditioner and cleaning services,
etc. for it’s demised space.
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, then
Tenant shall have Two (2) options to renew this Lease (each an
“Option”) for consecutive Ten (10) 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 nor more than Nine (9) months prior
to the date of expiration of the Term of this Lease or the then
expiring option period. Other than Base Rent due under the Option
Term(s), any renewal pursuant to this Option shall be on the same
terms and conditions as contained in this Lease.
4.1.1 In the event that
Tenant exercises its option to extend the term of this lease, the
Landlord shall provide written notice to Tenant of the amount
which, in Landlord’s reasonable opinion, represents the Fair
Market Rent for the upcoming Option Term. Tenant shall have twenty
(20) days from receipt of said written notice to respond to
Landlord in writing as to whether or not Tenant agrees with
Landlord’s determination of the Fair Market Rent.
Tenant’s failure to respond within said twenty (20) day
period shall be deemed to be Tenant’s agreement with the
Landlord’s determination of Base Rent. In the event Tenant
disagrees with the Landlord’s determination, the following
procedure shall be used in determining Fair Market Rent for the
Option Term:
The parties shall jointly
choose an impartial real estate appraiser who shall review the
market comparables and provide a written assessment of the Fair
Market Rent for the Premises. This written assessment shall
determine the Base Rent for the Option Term and shall be final and
binding; however, under no circumstance will the Base Rent for the
Option Term be less than the Base Rent for then current Lease
year.
4.1.2 In the event that
Landlord and Tenant cannot agree on an impartial real estate
appraiser within Sixty (60) days of Tenant’s notice of
dissent, or if the mutually selected real estate appraiser cannot
provide a written assessment within Forty-Five (45) days of
Landlord and Tenant’s joint request, either the Tenant or
Landlord may terminate the Lease by providing written notice to the
other, failing which, this Lease shall become a month-to-month
lease upon the expiration of the current Lease term.
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/Commonwealth of Florida, and
Employer’s Liability Insurance in the limits required by the
laws of the State/Commonwealth of Florida 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 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.
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. Tenant is to maintain and repair parking and at
tenant’s expense. Landlord shall provide not less than
[ ]
parking spaces within the parking area, which Landlord warrants
meets all parking requirements of any governmental authority, which
shall include not less than 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, 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.
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 th
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