Tennessee-Knoxville-810 Innovation Drive Lease Agreement - CTI Molecular Imaging Inc. and CTI Pet Systems Inc.
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LEASE AGREEMENT
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CTI MOLECULAR IMAGING, INC.,
as Landlord,
and
CTI PET SYSTEMS, INC.,
as Tenant.
Dated: November 1, 2002
Premises:
810 Innovation Drive
Knoxville, Tennessee 37932
830 Corridor Park Boulevard
Knoxville, Tennessee 37932
835 Innovation Drive
Knoxville, Tennessee 37932
3100 Stock Creek Boulevard
Rockford, Tennessee 37853
10516 Lexington Drive
Knoxville, Tennessee 37932
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TABLE OF CONTENTS
ARTICLE 1 REFERENCE DATA AND DEFINITIONS......................................... 1
ARTICLE 2 DEMISED PREMISES AND TERM.............................................. 2
Section 2.1. Demised Premises................................................ 2
Section 2.2. Term........................................................... 3
ARTICLE 3 RENT................................................................... 3
Section 3.1. Basic Rent..................................................... 3
Section 3.2. Additional Rent................................................ 3
Section 3.3. Past Due Rent.................................................. 3
Section 3.4. Basic Rent Adjustment.......................................... 3
ARTICLE 4 NET LEASE.............................................................. 4
Section 4.1. Net Lease...................................................... 4
ARTICLE 5 IMPOSITIONS............................................................ 5
Section 5.1. Impositions.................................................... 5
Section 5.2. Exclusions from Impositions.................................... 5
Section 5.3. Tax Receipts................................................... 5
Section 5.4. Tax Consents................................................... 6
ARTICLE 6 CONDUCT OF BUSINESS BY TENANT.......................................... 6
Section 6.1. Use of Demised Premises........................................ 6
Section 6.2. Compliance with Laws and Requirements of Public Authorities.... 7
ARTICLE 7 INSURANCE............................................................. 7
Section 7.1. Hazard Insurance............................................... 7
Section 7.2. Other Insurance................................................ 7
Section 7.3. Insurers and Policies.......................................... 8
Section 7.4. Rental Insurance............................................... 8
Section 7.5. Additional Insured............................................. 9
Section 7.6. Loss Payee..................................................... 9
Section 7.7. Concurrent and Blanket Insurance............................... 9
ARTICLE 8 REPAIRS, ALTERATIONS AND MECHANICS' LIENS............................. 9
Section 8.1. Repairs........................................................ 9
Section 8.2. Alterations by Tenant.......................................... 9
Section 8.3. Alterations by Landlord........................................ 10
Section 8.4. Mechanics' Liens............................................... 11
ARTICLE 9 BUILDING SERVICES...................................................... 11
Section 9.1. Building Services.............................................. 11
Section 9.2. Electricity.................................................... 11
Section 9.3. Interruption of Services....................................... 12
ARTICLE 10 LANDLORD'S RIGHT TO CURE.............................................. 13
Section 10.1. Landlord's Right to Cure...................................... 13
ARTICLE 11 INDEMNITY............................................................. 13
Section 11.1. Tenant's Indemnity and Landlord's Non-Liability............... 13
Section 11.2. Tenant's Waiver of Subrogation................................ 15
Section 11.3. Landlord's Indemnity and Tenant's Non-Liability............... 15
Section 11.4. Landlord's Waiver of Subrogation.............................. 16
ARTICLE 12 DAMAGE BY CASUALTY.................................................... 16
Section 12.1. Notice........................................................ 16
Section 12.2. Restoration of Improvements................................... 16
ARTICLE l3 EMINENT DOMAIN........................................................ 17
Section 13.1. Taking of Demised Premises.................................... 17
Section 13.2. Surrender..................................................... 17
Section 13.3. Rent Adjustment for Partial Taking............................ 17
Section 13.4. Awards........................................................ 17
Section 13.5. Reconstruction................................................ 17
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ARTICLE 14 ACCESS................................................................ 18
Section 14.1. Access to Demised Premises.................................... 18
ARTICLE 15 ASSIGNMENT AND SUBLETTING............................................. 18
Section 15.1 Consent Required............................................... 18
ARTICLE 16 BANKRUPTCY............................................................ 19
Section 16.1 Bankruptcy..................................................... 19
Section 16.2. Measure of Damages............................................ 19
ARTICLE 17 TENANT'S DEFAULT...................................................... 19
Section 17.1. Events of Default............................................. 19
Section 17.2. Damages....................................................... 20
Section 17.3. Waiver of Jury Trial.......................................... 21
ARTICLE 18 SURRENDER............................................................. 21
Section 18.1. Possession.................................................... 21
Section 18.2. Tenant's Property............................................. 21
Section 18.3. Merger........................................................ 21
Section 18.4. Payments After Termination.................................... 22
ARTICLE 19 CONDITION OF DEMISED PREMISES......................................... 22
Section 19.1. Condition of Demised Premises................................. 22
ARTICLE 20 REMEDIES CUMULATIVE................................................... 22
Section 20.1. No Waiver..................................................... 22
ARTICLE 21 ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT....................... 22
Section 21.1. Estoppel Certificate.......................................... 22
Section 21.2. Subordination................................................. 23
Section 21.3. Attornment.................................................... 23
ARTICLE 22 QUIET ENJOYMENT....................................................... 23
Section 22.1. Quiet Enjoyment............................................... 23
ARTICLE 23 NOTICES............................................................... 23
Section 23.1. Notices....................................................... 24
ARTICLE 24 MISCELLANEOUS PROVISIONS.............................................. 24
Section 24.1. Survival of Tenant's Obligation............................... 24
Section 24.2. Applicable Law and Construction............................... 24
Section 24.3. Parties Bound................................................. 24
Section 24.4. No Representations by Landlord................................ 24
Section 24.5. Brokers....................................................... 25
Section 24.6. Severability.................................................. 25
Section 24.7. Definition of Landlord........................................ 25
Section 24.8. Exculpatory Clause............................................ 25
Section 24.9. No Recording.................................................. 25
Section 24.10. Entire Agreement; Modification............................... 25
ARTICLE 25 OPTION TO RENEW....................................................... 26
Section 25.1. Option to Renew............................................... 26
LIST OF EXHIBITS TO LEASE AGREEMENT.............................................. 28
EXHIBIT A TO LEASE AGREEMENT..................................................... 29
EXHIBIT B TO LEASE AGREEMENT..................................................... 35
EXHIBIT C TO LEASE AGREEMENT..................................................... 36
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LEASE AGREEMENT
This Lease Agreement ("LEASE") is made between Landlord and Tenant
named in ARTICLE 1 as of the date set forth therein. Landlord and Tenant, in
consideration of the covenants contained herein, agree as follows:
ARTICLE 1
REFERENCE DATA AND DEFINITIONS
The following are definitions of terms used in this Lease, and
each reference in this Lease to any of the following subjects shall be construed
to incorporate the data, terms, covenants and provisions stated for that subject
in this ARTICLE 1:
DATE OF EXECUTION November 1, 2002
OF LEASE:
LANDLORD: CTI Molecular Imaging, Inc.
a Delaware corporation
LANDLORD'S 810 Innovation Drive
ADDRESS FOR Knoxville, Tennessee 37932
RENT AND
NOTICES:
TENANT: CTI PET Systems, Inc.
a Tennessee corporation
TENANT'S ADDRESS 810 Innovation Drive
FOR NOTICES: Knoxville, Tennessee 37932
LAND: The Land described on EXHIBIT A hereto.
DEMISED PREMISES: The portion of the buildings, structures and
improvements located upon the Land (the "BUILDINGS")
occupied from time to time by Tenant, and the
nonexclusive right to occupy and use Common Areas, as
described on EXHIBIT B hereto.
TENANT'S PRO RATA The number of square feet occupied by Tenant divided
SHARE: by the total space in the Buildings. As of the
Commencement Date, the total space in the Buildings
will be 277,007 square feet. Upon completion of the
additional mezzanine space in Buildings 2 and 3 at
810 Innovation Drive the total space will be 290,007
square feet.
COMMENCEMENT DATE: January 1, 2003.
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EXPIRATION DATE: December 31, 2012.
TERM: Ten years.
RENEWAL TERM: Two successive terms for five years each.
BASIC RENT: Eleven dollars ($11.00) per square foot per year for
office space, and eight dollars ($8.00) per square
foot per year for manufacturing space, and four
dollars ($4.00) per square foot per year for
warehouse space at 10516 Lexington Drive plus
Tenant's Pro Rata Share of eleven dollars ($11.00)
per square foot per year for Common Areas of the
Building, from the Commencement Date until the
Expiration Date, subject to adjustment pursuant to
SECTION 3.4.
BASIC RENT ADJUSTMENT: Increase by 100% of increase in Consumer Price Index
increase, not to exceed 3% per year, at the end of
years 3,6 and 9, as provided in SECTION 3.5.
CPI DATES: The end of the month during which the expiration of
three, six and nine years from the Commencement Date
occurs.
BUSINESS DAY: A day on which banks in Knoxville, Tennessee are
opened for business.
ARTICLE 2
DEMISED PREMISES AND TERM
SECTION 2.1. DEMISED PREMISES. Landlord does hereby lease unto Tenant,
and Tenant does hereby lease from Landlord, the Demised Premises, upon and
subject to the covenants, agreements, terms, conditions, limitations, exceptions
and reservations of this Lease. Landlord and Tenant may, from time to time, by
agreement, change the configuration and size of the Demised Premises, and Rent
will be adjusted accordingly; provided, however, that the configuration of the
Demised Premises shall not during the Initial Term be changed in such a manner
that the Demised Premises is less than forty percent (40%) of the aggregate
space in the Buildings, exclusive of Common Areas. The configuration and size of
the Demised Premises shall be determined and measured by Landlord quarterly, as
of the beginning of each fiscal quarter of Landlord (October 1, January 1, April
1, and July 1) and Rent payable by Tenant hereunder shall be adjusted
accordingly for such quarter based upon the size of the Demised Premises, at the
Rent rates provided for herein. The Demised Premises shall include all space
within the Buildings occupied by Tenant and all space reserved for or assigned
for occupancy by Tenant. The availability of space in the Buildings for
occupancy by Tenant or reservation or assignment for Tenant shall be determined
by Landlord, provided that the minimum space available to Tenant at all times
shall be forty percent (40%) of the aggregate space in the
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Buildings, exclusive of Common Areas and, provided, further, that Landlord shall
not move Tenant from any space occupied by Tenant without Tenant's prior
approval. Landlord and Tenant agree that if Landlord further expands its
facilities at 810 Innovation Drive, whether by expanding the existing Buildings
there or by adding additional Buildings, or at 830 Corridor Park Boulevard by
acquiring additional space there, Tenant shall have the opportunity to negotiate
with Landlord with respect to the possibility of Tenant taking additional space
in such expansion area.
SECTION 2.2. TERM. The Term shall commence on the Commencement Date and
shall terminate on the Expiration Date.
ARTICLE 3
RENT
SECTION 3.1. BASIC RENT. Commencing on the Commencement Date, Tenant
shall pay to Landlord at the address set forth in ARTICLE 1, or at such other
place designated by Landlord in writing, without any prior demand therefor, the
Basic Rent set forth in ARTICLE 1, subject to adjustment as provided in SECTION
3.4. Except as may otherwise be set forth in ARTICLE 1, Basic Rent shall be due
and payable in equal monthly installments in lawful currency of the United
States of America and in arrears on the last day of each and every calendar
month thereafter during the term of this Lease based upon the space occupied by
Tenant during the month.
SECTION 3.2. ADDITIONAL RENT. Any sums or charges to be paid by Tenant
pursuant to the provisions of this Lease, other than the Basic Rent, shall be
designated as "ADDITIONAL RENT" and shall be payable within five Business Days
after Landlord gives written notice that payment is due, unless otherwise
provided in this Lease. Payment shall be made at the location specified in
ARTICLE 1, unless otherwise designated by Landlord in writing Landlord shall
have the same rights against Tenant for default in payment of Additional Rent as
for default in payment of the Basic Rent. As used in this Lease, the term "RENT"
shall mean Basic Rent and Additional Rent.
SECTION 3.3. PAST DUE RENT. If Tenant shall fail to pay any Rent before
the fifth business day after such Rent is due and payable, Tenant agrees to pay
as Additional Rent each day after such fifth day that the Rent remains unpaid a
charge (the "LATE CHARGE") which shall be 3% of the amount of such unpaid Rent
divided by 30. The Late Charge shall accrue and be payable daily until the
unpaid Rent (including the Late Charge) is paid. Tenant agrees that such amounts
are not a penalty, but are a reasonable amount to reimburse Landlord for the
loss of the use of the funds and the additional administrative costs resulting
from late payments.
SECTION 3.4. BASIC RENT ADJUSTMENT. (a) On each of the CPI Dates (as
defined in ARTICLE 1), the Basic Rent payable thereafter shall be increased by
an amount equal to the product of (i) the CPI Factor (as defined below)
multiplied by (ii) the Basic Rent payable immediately preceding such date;
provided, however, that the adjustment to the Basic Rent shall only be made if
the CPI Factor is a positive number.
(b) The term "CPI FACTOR" shall mean the lesser of (i) one hundred
percent (100%) of the percentage increase, if any, between (A) the Consumer
Price Index for All Urban
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Consumers, All Items U. S. Cities Average (1982-84=100), published by the Bureau
of Labor Statistics, United States Department of Labor (the "CPI"), for the
December which (I) in the case of the first CPI Date immediately precedes the
Commencement Date, (II) in the case of the second CPI Date, immediately precedes
the first CPI Date, and (III) in the case of the third CPI Date, immediately
precedes the second CPI Date, and (B) the CPI for the December immediately
preceding the then current CPI Date, or (ii) three percent (3%) per year.
(c) In the event the relevant CPI shall hereafter be converted to
a different standard reference base, the determination of the increase in Basic
Rent shall be made with the use of such conversion factor, formula or table for
converting the relevant CPI as may be published by the Bureau of Labor
Statistics, United States Department of Agriculture, or, if said Bureau shall
not publish the same, then with the use of such conversion factor, formula or
table as may be published by Prentice Hall, Inc., or, failing such publication,
by any other nationally recognized publisher of similar statistical information.
In the event the relevant CPI shall cease to be published, then, for the
purposes of this SECTION 3.4, there shall be substituted for the CPI such other
index selected by Landlord as comparable as possible to the CPI.
(d) Within thirty (30) days following the publication of the
relevant CPI or the substitute therefore following the CPI Date, Landlord shall
submit to Tenant a statement setting forth the CPI Factor and the adjustment to
Basic Rent as a result thereof. Commencing as of the first day of such ensuing
Lease Year and on the first day of each month thereafter, Tenant shall pay to
Landlord the increased Basic Rent in the manner provided in SECTION 3.1 of this
Lease. The failure of Landlord to submit the statement required pursuant to this
SECTION 3.4 shall not prejudice Landlord's right to thereafter render such a
statement, but Tenant shall not be required to pay such adjustment until such
statement is rendered.
ARTICLE 4
NET LEASE
SECTION 4.1. NET LEASE. (a) This Lease shall be deemed and construed to
be a "net lease", and Tenant shall pay to Lessor, absolutely net throughout the
term of this Lease, the Rent and other payments hereunder, free of any charges,
assessments, impositions or deductions of any kind (including, without being
limited to, any sales tax on Rent) and without abatement, deduction or set-off
except as otherwise expressly provided herein, and under no circumstances or
conditions, whether now existing or hereafter arising, or whether beyond the
present contemplation of the parties, shall Landlord be expected or required to
make any payment of any kind whatsoever or be under any other obligation or
liability hereunder except as herein otherwise expressly set forth or as may be
required by law.
(b) Except to the extent expressly provided for herein, no
happening, event, occurrence or situation during the term of this Lease, whether
foreseen or unforeseen, and however extraordinary, shall permit Tenant to quit
the Demised Premises or surrender or terminate this Lease or shall relieve
Tenant from any of the covenants, agreements, terms, provisions, conditions and
limitations contained herein on its part to be observed, performed or complied
with, and Tenant waives any rights now or hereafter conferred upon it by
statute, proclamation, decree or order, or otherwise, to quit the Demised
Premises, or any part thereof, to
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surrender or terminate this Lease or to claim any abatement, diminution,
reduction or suspension of the Rent and other charges payable hereunder on
account of any such happening, event, occurrence or situation.
ARTICLE 5
IMPOSITIONS
SECTION 5.1. IMPOSITIONS. Tenant shall, within thirty (30) days after
notice from Landlord, pay to Landlord Tenant's Pro Rata Share of all real estate
taxes, sales taxes, assessments, water and sewer rates, rents or charges, use or
occupancy taxes, vault charges, license or permit fees and any other
governmental levies or charges, general or special, ordinary or extraordinary,
foreseen or unforeseen, of any kind and nature whatsoever (said taxes,
assessments, water and sewer rates or charges, vault charges, license or permit
fees and other governmental levies or charges being hereinafter referred to as
"IMPOSITION"), which are assessed, levied, confirmed, imposed or become a lien
upon the Land and Building or become payable, during the term of this Lease;
provided, however, that, if by law any such Imposition is payable or may at the
option of the taxpayer be paid in installments (whether or not interest shall
accrue on the unpaid balance of such Imposition), Tenant may pay the same (and
any accrued interest on the unpaid balance of such Imposition) in installments
and shall pay only such installments as may become due during the term of this
Lease as the same respectively become due and before any fine, penalty, interest
or cost may be added thereto for the non-payment of any such installment and
interest; and provided further, that any Imposition relating to a fiscal period
which is included within the term of this Lease and a part of which is included
in a period of time after the expiration of the term of this Lease, other than a
termination of this Lease pursuant to ARTICLE 17 shall (whether or not such
Imposition shall be assessed, levied, confirmed, imposed or become a lien upon
the Demised Premises, or shall become payable, during the term of this Lease) be
adjusted between Landlord and Tenant as of the expiration of the term of this
Lease, so that Tenant shall pay that portion of such Imposition which that part
of such fiscal period included in the period of time after the expiration of
this Lease bears to such fiscal period and Landlord shall pay the remainder
thereof.
SECTION 5.2. EXCLUSIONS FROM IMPOSITIONS. Nothing contained in this
Lease shall require Tenant to pay any franchise, corporate, estate, inheritance,
succession, capital levy or stamp tax of Landlord (an "EXCLUDED TAX"), and no
Excluded Tax shall be deemed to be included within the term Imposition;
provided, however, that (a) the foregoing shall not exclude from Impositions
excise, sales, gross receipts and similar taxes imposed upon the Rent and (b) if
under the laws of the State of Tennessee or any political subdivision thereof an
Excluded Tax is hereafter levied or assessed against Landlord or the Rent, in
lieu of or as a substitution in whole or in part for taxes assessed or imposed
by said State, or any political subdivision thereof, on land and buildings, the
same shall be deemed to be included within the term Imposition, and Tenant shall
(but to the extent only that such tax or excise, so far as ascertainable, is in
lieu of or in substitution for one or more Impositions) pay and discharge such
Excluded Tax in accordance with the provisions of SECTION 5.1 in respect of the
payment of Impositions.
SECTION 5.3. TAX RECEIPTS. Landlord shall prepare and timely file all
required returns in respect of the Impositions to be paid by Tenant pursuant to
this ARTICLE 5. Landlord shall
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promptly furnish to Tenant copies of all tax returns, official receipts of the
appropriate taxing authority, or other evidence evidencing the payment of
Impositions and Tenant shall pay its Pro Rata Share thereof as provided in
SECTION 5.1 above.
SECTION 5.4. TAX CONSENTS. Tenant shall have the right, subject to
Landlord's prior consent, which consent will not be unreasonably withheld or
delayed, to contest the amount or validity, in whole or in part, of any
Imposition by appropriate proceedings. Landlord shall not unreasonably withhold
its consent to joining in any such proceeding or permitting the same to be
brought in its name provided that the same is required by law or any rule or
regulation in order to make such contest effective. Landlord shall not be
subjected to any liability for the payment of any costs or expenses in
connection with any such proceeding, and Tenant shall indemnify and save
harmless Landlord from any such costs or expenses related to the Demised
Premises. Tenant shall be entitled promptly to any refund of any such Imposition
and penalties or interest thereon which have been paid by Tenant, or which have
been paid by Landlord and for which Landlord has been fully reimbursed,
notwithstanding the expiration of this Lease prior to payment of said refund.
Notwithstanding the foregoing, Landlord shall additionally have the right to
contest the amount or validity, in whole or in part, of any Imposition by
appropriate proceedings. The provisions of this SECTION 5.4 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 6
CONDUCT OF BUSINESS BY TENANT
SECTION 6.1. USE OF DEMISED PREMISES. Tenant shall use the Demised
Premises during the full term of this Lease solely for general office use, use
for light manufacturing and uses ancillary thereto and for any other lawful
purpose.
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SECTION 6.2. COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC
AUTHORITIES.
(a) At all times during the term of this Lease, Tenant shall give
prompt notice to Landlord of any notice Tenant receives of any violation of any
law or requirement of any governmental authority affecting the Demised Premises,
and, at its sole cost and expense, Tenant shall immediately comply with all laws
and requirements of governmental authorities, including any violation, order or
duty imposed upon Tenant, arising from or relating to the Demised Premises,
whether now existing or hereafter enacted and whether ordinary or extraordinary,
foreseen or unforeseen, including but not limited to matters relating to toxic
wastes, hazardous or dangerous materials or other similar substances. Tenant, at
its expense, shall comply with all easements, restrictive covenants and matters
affecting the Demised Premises.
(b) Tenant shall not do, permit or suffer any act or thing to be
done which is injurious to the Demised Premises, which is immoral, a nuisance,
contrary to law or in violation of the certificate of occupancy issued for the
Building or which would result in the cancellation of, or any increase in
premiums for, insurance maintained hereunder with respect to the Demised
Premises.
(c) Tenant agrees that it shall not keep, use, sell or offer for
sale in or upon the Demised Premises any article which may be prohibited by any
then available standard forms of fire insurance policies with extended coverage.
(d) Tenant shall pay all costs, expenses, fines, penalties or
damages (including, without limitation, professional fees and disbursements)
which may be imposed upon Landlord by reason of Tenant's failure to comply with
the provisions of this SECTION 6.2.
(e) The provisions of this SECTION 6.2 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 7
INSURANCE
SECTION 7.1. HAZARD INSURANCE. Landlord shall obtain such reasonable
hazard insurance on the Land, Building and Demised Premises as Landlord deems
appropriate. Tenant shall pay to Landlord Tenant's Pro Rata Share of the cost of
such insurance within ten days after receipt of an invoice or bill therefor from
Landlord. Except as expressly provided herein, Landlord shall not be responsible
for obtaining insurance on any of Tenant's property, whether located within the
Demised Premises or otherwise.
SECTION 7.2. OTHER INSURANCE. Until such time as Tenant elects to
arrange for and provide such insurance itself, at its own cost and expense,
Landlord, at its sole cost and expense, shall maintain insurance for the mutual
benefit of Landlord and Tenant against:
(a) loss of rental from the Demised Premises, under a rental value
insurance policy covering risk of loss due to the occurrence of any of the
hazards insured against by Landlord under SECTION 7.1 (if insurance covering
such hazards is generally available) in an amount
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sufficient to prevent Landlord or Tenant from becoming co-insurers and, in any
event, in an amount not less than the aggregate requirements for the Term of
this Lease including any extensions hereof, including Renewal Terms which become
effective pursuant to ARTICLE 25 of this Lease, for (i) Rent, (ii) Impositions
and (iii) premiums on insurance required to be carried pursuant to this Article;
(b) claims for bodily injury, death or property damage under a
policy of comprehensive public liability insurance, with such limits as may
reasonably be required by Landlord from time to time, but not less than
$3,000,000 in respect of injuries to or death of any one person and not less
than $5,000,000 in respect of injuries to or death of any number of persons in
any one occurrence and not less than $1,000,000 in respect of property damage.
Tenant shall also maintain for the mutual benefit of Landlord and Tenant excess
("umbrella") liability policies with total coverage of not less than
$10,000,000;
(c) hazard insurance covering Tenant's personal property located
within the Demised Premises, in such amounts as may be agreed by Landlord and
Tenant.
Until and unless Tenant elects to provide such insurance itself, the cost of
insurance provided by Landlord under this Section 7.2 shall be treated as a
common expense of the Buildings, and Tenant shall pay to Landlord Tenant's Pro
Rata share of the cost of such insurance within ten days after receipt of an
invoice or bill therefor from Landlord. Tenant may, upon ninety (90) days
advance notice to Landlord, elect to arrange for and provide such insurance
itself, at Tenant's sole cost and expense.
SECTION 7.3. INSURERS AND POLICIES. All insurance provided for under
this Lease shall be effected under valid enforceable policies issued by
responsible, well-rated insurers licensed to do business in the State of
Tennessee. Upon the execution of this Lease certificates evidencing such
insurance coverage shall be delivered to Landlord. At least 30 days prior to the
expiration date of any policy, the renewal certificates for such insurance shall
be delivered by Tenant to Landlord. All such policies shall contain agreements
by the insurers that (a) any loss shall be payable, notwithstanding any act or
negligence of Landlord or Tenant which might otherwise result in forfeiture of
said insurance, (b) such policies shall not be canceled except upon 30 days
prior written notice to each named insured and loss payee and (c) the coverage
afforded thereby shall be affected by the performance of any work in or about
the Demised Premises. All such policies shall additionally comply with the
requirements of SECTION 11.2.
SECTION 7.4. RENTAL INSURANCE. The rental value policy referred to in
SECTION 7.2(A) shall name Landlord as the loss payee thereunder. Upon receipt of
the same, Landlord shall apply the proceeds of such rental value insurance paid
to it first to the payment of Rent and then to the payment of Impositions and
insurance premiums and other items of Additional Rent becoming due during
restoration of the Demised Premises and any balance of such proceeds remaining
after payment of said sum shall be paid to Tenant; provided, however, that, if
Tenant shall then be in default hereunder, Landlord may retain such balance
until the default is cured by Tenant and provided, further, that, if this Lease
shall be terminated, whether by reason of the casualty related to the rental
insurance payment or otherwise, Landlord may retain any balance for its own
account.
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SECTION 7.5. ADDITIONAL INSURED. Except as provided in SECTION 7.4, all
policies of insurance required herein shall name Landlord as an additional
insured as its interests may appear.
SECTION 7.6. LOSS PAYEE. The loss, if any, under all policies of the
character referred to in SECTION 7.1 shall be payable to Landlord.
SECTION 7.7. CONCURRENT AND BLANKET INSURANCE. Tenant shall not take
out separate insurance concurrent in form or contributing in the event of loss
with that required in this ARTICLE 7 to be furnished by Tenant unless Landlord
is also included therein as an additional insured, with loss payable as provided
in this Lease. Tenant shall immediately notify Landlord of the taking out of any
such separate insurance and shall deliver certificates in respect thereof to
Landlord as provided in SECTION 7.3 hereof. Nothing in this Article shall
prevent Tenant from taking out insurance of the kind and in the amount provided
for under SECTION 7.2 hereof under a blanket insurance policy or policies which
can cover other properties owned or operated by Tenant as well as the Demised
Premises.
ARTICLE 8
REPAIRS, ALTERATIONS AND MECHANICS' LIENS
SECTION 8.1. REPAIRS. (a) Landlord, at its expense, shall make all
necessary or appropriate repairs, interior or exterior, structural or otherwise,
ordinary or extraordinary, foreseen or unforeseen to keep the Land and Building
in good order and repair. Tenant shall pay to Landlord Tenant's Pro Rata share
of the cost of such repairs within ten business days after receipt of an invoice
or bill therefor from Landlord. Tenant, at its expense, shall at all times
maintain the Demised Premises in a sightly and attractive manner.
(b) Tenant shall not permit or cause any waste, damage or injury
to the Demised Premises or any part thereof.
SECTION 8.2. ALTERATIONS BY TENANT. Tenant, at its expense, may make
such alterations, additions and improvements to the Demised Premises as are
necessary or desirable for the conduct of its business; provided, however, that
Tenant shall not make any alterations, additions or improvements in or to the
Demised Premises which (a) affect the exterior or structure of the Demised
Premises or the Building's electrical, plumbing, mechanical or HVAC systems or
(b) reduce the value or utility of the Building, without Landlord's prior
written consent in each instance, such consent not to be unreasonably withheld
or delayed, and subject to such reasonable conditions and requirements as
Landlord may reasonably impose. Prior to making any alterations, additions,
installations or improvements, at its expense, Tenant shall obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and deliver
duplicates of all such permits, approvals and certificates to Landlord. Tenant
shall comply with the requirements of SECTION 6.2 in making any alterations,
additions, installations or improvements. Tenant shall carry, or cause Tenant's
contractors and sub-contractors to carry, such workmen's compensation, general
liability, builders' risk, personal and property damage insurance as Landlord
may
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reasonably require. Tenant shall maintain a complete and current set of
"as-built" plans and specifications for the Demised Premises and shall deliver
copies thereof to Landlord not later than 30 days after the completion of any
alteration, addition or improvement to the Demised Premises. Any approved or
permitted alterations by Tenant shall be surrendered to Landlord as provided in
ARTICLE 18 hereof upon expiration of this Lease.
SECTION 8.3. ALTERATIONS BY LANDLORD. (a) Tenant may request that
Landlord construct alterations, additions and improvements to the Demised
Premises. In such event, Landlord shall provide an architect and engineer
licensed by the State of Tennessee to prepare architectural, mechanical,
electrical and plumbing plans and specifications for the construction of such
improvements in accordance with general directions from Tenant. The plans and
specifications shall include (i) a schematic plan indicating the location of all
partitions and doors, a general furniture and equipment layout, and the location
and requirement of electrical, telephone and plumbing; and (ii) final plans
consisting of all plans and specifications necessary to construct the
improvements, including mechanical and electrical working drawings, which will
be certified by the architect or engineer and will be in a form which building
permits can be readily obtained and shall comply with applicable local laws,
ordinances, codes and regulations; the final plans shall contain all mechanical
and electrical working drawings. Tenant's plans shall be subject to Landlord's
approval. If Landlord disapproves of any of Tenant's Plans, Landlord shall
advise Tenant of the reasons for withholding approval. After being so advised by
Landlord, Tenant shall submit revised Tenant's Plans incorporating the
reasonably required revisions for Landlord's approval.
(b) Prior to commencing construction of the improvements, Landlord
shall submit to Tenant a written estimate of all costs to complete the
improvements. Tenant shall either approve or specify its objections to the
estimate within three (3) business days after receipt thereof. If Tenant
disapproves the estimate, Landlord and Tenant shall jointly agree to changes to
Tenant's plans that will achieve the Tenant's desired results and Landlord shall
submit a revised estimate, and the parties shall follow this procedure until the
estimate is finally approved by Tenant. Tenant shall not unreasonably withhold
or delay its approval of the estimate. Landlord shall not be obligated to
proceed with the Tenant improvements until Tenant approves the estimate in
writing.
(c) Upon Tenant's approval of the plans and estimate, and
following the receipt of the appropriate permits, Landlord shall proceed with
the construction of Tenant improvements. Contractors selected by Landlord shall
construct the Tenant improvements at Landlord's expense.
(d) Tenant shall reimburse Landlord for all of the actual costs
incurred by Landlord for the plans and improvements, plus interest at a rate
equal to the rate then paid by Landlord on its working capital line of credit.
Tenant shall pay such costs as Additional Rent in equal monthly installments
sufficient to fully repay Landlord by the end of the Term. Tenant shall be
obligated to pay Landlord for such costs even if the Tenant improvements are not
completed due to some fault of Tenant, or if Tenant breaches this Lease, or
otherwise terminates this Lease prior to the Termination Date.
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(e) In the event Tenant breaches this Lease, or otherwise
terminates this Lease prior to the Termination Date, Landlord shall have the
option to accelerate all remaining unpaid installments of the foregoing
improvement costs, which amount shall immediately become due and payable without
presentment, demand, protest, or notice of any kind, all of which Tenant waives.
If Landlord exercises its option to require that such costs be immediately paid,
then in such event and from the date of the occurrence of such acceleration,
notwithstanding any other provisions herein to the contrary, such costs shall
bear interest at a rate equal to the highest rate allowed by applicable law. In
addition, Tenant shall pay to Landlord, upon demand, all expenses and costs,
including, but not limited to, reasonable attorneys' fees, that the Landlord
incurs in collecting or attempting to collect the accelerated balance of the
costs.
SECTION 8.4. MECHANICS' LIENS. Tenant shall (a) pay before delinquency
all costs and expenses of work done or caused to be done by Tenant in the
Demised Premises; (b) keep the title to the Demised Premises and every part
thereof free and clear of any lien or encumbrance in respect of such work; and
(c) indemnify and hold harmless Landlord against any claim, loss, cost, demand
(including reasonable legal fees), whether in respect of liens or otherwise,
arising out of the supply of material, services or labor for such work. Tenant
shall immediately notify Landlord of any lien, claim of lien or other action of
which Tenant has or reasonably should have knowledge and which affects the title
to the Demised Premises or any part thereof, and shall cause the same to be
removed or bonded within thirty (30) days (or such additional time as Landlord
may consent to in writing). If Tenant shall fail to remove same within said time
period, Landlord may take such action as Landlord deems necessary to remove the
same and the entire cost thereof shall be immediately due and payable by Tenant
to Landlord and such amount shall bear interest at the lower of the prime rate
published from time to time in the Money Rates section of the Wall Street
Journal plus four percent (4%) or the maximum rate permitted by law (the
"DEFAULT RATE") from the date Landlord makes such payment. The provisions of
this SECTION 8.4 shall survive the expiration or earlier termination of this
Lease.
ARTICLE 9
BUILDING SERVICES
SECTION 9.1. BUILDING SERVICES. Landlord shall be responsible for
obtaining all services to the Demised Premises reasonably necessary for Tenant's
occupancy thereof, including, without being limited to, all water, heat, air
conditioning, ventilation, electricity, sewerage, elevator service, janitorial
service, waste removal service and landscaping services. Tenant shall pay to
Landlord Tenant's Pro Rata Share of the cost of such services within ten (10)
business days after receipt of an invoice or bill therefor from Landlord.
Landlord shall provide such services in accordance with the Building and
Environmental Control Standard Operating Procedure attached hereto as EXHIBIT C,
as such Standard Operating Procedure may be amended from time to time by
agreement of Landlord and Tenant.
SECTION 9.2. ELECTRICITY. Tenant shall not use the Building's electric
distribution systems in excess of the capacity for which such systems were
designed. Tenant shall not, without Landlord's prior written consent in each
instance (which consent shall not be unreasonably withheld or delayed), make any
alterations or additions to the electric system of the Building
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existing at the commencement of the Term. If Landlord grants such consent, the
cost of all additional risers and other equipment required therefor shall be
paid by Tenant.
SECTION 9.3. INTERRUPTION OF SERVICES. Landlord shall not be
responsible for any interruption of services to the Demised Premises and does
not covenant that Building services will be free from interruptions caused by
repairs, improvements, changes of service, alterations, strikes, lockouts, labor
controversies, accidents, inability to obtain fuel, water or supplies,
government regulation, earthquakes or any other cause, whether similar or
dissimilar. No such interruption of service shall be deemed a constructive
eviction or disturbance of Tenant's use and possession of the Demised Premises
or any part thereof, or otherwise render Landlord liable to Tenant for damages,
by abatement of rent or otherwise, or otherwise relieve Tenant from performance
of Tenant's obligations under this Lease unless such interruption or stoppage is
due to Landlord's gross negligence or willful misconduct. Tenant hereby waives
and releases all claims against Landlord for damages for interruption or
stoppage of Building services.
SECTION 9.4 BUILDING AND ENVIRONMENTAL CONTROL. Landlord shall use
commercially reasonable efforts, within the capabilities of the existing
heating, ventilating and air conditioning systems servicing the Demised
Premises, to maintain within that portion of the Demised Premises designated as
manufacturing space building and environment conditions within the parameters
set forth in the Building and Environment Control Standard Operating Procedure
attached hereto as EXHIBIT C, as such Standard Operating Procedure may be
amended from time to time by agreement of Landlord and Tenant (the "ENVIRONMENT
STANDARDS"). If Tenant determines that Landlord is regularly failing to maintain
the Environment Standards, Tenant shall notify Landlord in writing of the
condition that fails to meet the required Environment Standards, and Landlord
shall promptly use commercially reasonable efforts to remedy the situation. If
Landlord reasonably determines that modifications of building heating,
ventilating and air conditioning systems serving the Demised Premises are
necessary in order to remedy the failure to meet the Environment Standards,
Landlord shall so advise Tenant in writing. Tenant shall determine whether it
wishes to have the modifications made, and notify Landlord of such determination
within thirty (30) days after the notice from Landlord. If Tenant elects to have
the proposed modifications made, Landlord shall make the modifications at
Tenant's expense. Tenant shall promptly reimburse Landlord for the costs of the
modifications, including design, construction and other related costs, upon the
submission of invoices for such costs by Landlord. If Tenant elects to decline
to have the proposed modifications made, Landlord shall be relieved of
responsibility for any failure to maintain the Environment Standards that
reasonably could be expected to have been avoided had the proposed modifications
been made. Except as provided above with respect to situations in which Landlord
determines that modifications of building systems are necessary and tenant
declines to have such modifications made, if Landlord regularly fails to
maintain the Environment Standards, within the reasonable capabilities of the
building heating, ventilating and air conditioning systems serving the Demised
Premises, for a period of sixty (60) days after written notice to Landlord from
Tenant, Landlord shall indemnify Tenant for any actual losses sustained by
Tenant after such sixty (60) days period directly caused by such failure.
Provided, however, that Landlord's responsibility for such damages shall be
limited to an amount equal to the amount of Basic Rent due hereunder for the
lease year during which the failure to maintain the Environment Standards
occurs. Landlord shall not be liable to Tenant for lost profits or other
consequential or special damages. Provided that Landlord otherwise
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maintains the Demised Premises in a tenantable condition, Tenant's sole remedy
for failure to maintain the Environment Standards shall be as set forth in this
SECTION 9.4.
ARTICLE 10
LANDLORD'S RIGHT TO CURE
SECTION 10.1. LANDLORD'S RIGHT TO CURE. If Tenant shall at any time
fail to (a) pay any Imposition in accordance with the provisions of ARTICLE 5,
(b) to take out, pay for, maintain or deliver any of the insurance policies
provided for in ARTICLE 7, (c) to perform any maintenance or repair required by
SECTION 8.1, (d) to cause any lien of the character referred to in SECTION 8.4
to be discharged as therein provided, or (e) shall fail to perform any other act
on its part to be performed under this Lease and such failure shall continue for
a period of thirty (30) days after notice thereof, specifying such failure,
shall have been given to Tenant or, in the case of a failure which cannot with
due diligence be remedied by Tenant within thirty (30) days, if Tenant shall
fail to proceed as promptly as may reasonably be possible after the service of
such notice and with all due diligence to remedy the failure or shall thereafter
fail to prosecute the remedying of such failure with all due diligence, the
Landlord may, but shall not be obligated to do so, and without further notice or
demand upon Tenant and without waiving or releasing Tenant from any obligations
of Tenant in this Lease contained, (i) pay any Imposition payable by Tenant
pursuant to the provisions of ARTICLE 5, (ii) take out, pay for and maintain any
of the insurance policies provided for in ARTICLE 7, (iii) perform any
maintenance or repair required by SECTION 8.1, (iv) discharge any lien of the
character referred to in SECTION 8.4, or (v) perform any other act on Tenant's
part to be performed as in this Lease provided; provided, however, that, if
Tenant's failure shall have created a situation which, in the reasonable opinion
of Landlord, threatens imminent loss or impairment of Landlord's estate
hereunder or Landlord's interest in the Demised Premises or imminent loss or
damage to persons or property, or threatens civil and/or criminal penalties to
Landlord, the Landlord may act immediately and without prior written notice to
Tenant but Landlord shall attempt to give Tenant such notice as is reasonable
under the circumstances. All reasonable sums so paid by Landlord and all
necessary incidental and reasonable costs and expenses paid or incurred by
Landlord in connection with the performance of any such act by Landlord,
together with interest thereon from the date of making of such expenditure by
Landlord at the Default Rate, shall be payable by Tenant to Landlord on demand.
ARTICLE 11
INDEMNITY
SECTION 11.1. TENANT'S INDEMNITY AND LANDLORD'S NON-LIABILITY. (a)
Neither Landlord nor Landlord's agents, employees, contractors, officers,
directors, shareholders, partners or principals (disclosed or undisclosed) shall
be liable to Tenant or Tenant's agents, employees, contractors, officers,
directors, shareholders, partners or principals (disclosed or undisclosed)
invitees or licensees or any other occupant of the Demised Premises, and Tenant
shall save Landlord, its successors and assigns, and their respective agents,
employees, contractors, officers, directors, shareholders, partners and
principals (disclosed or undisclosed) harmless from any loss, cost, liability,
claim, damage, expense (including reasonable attorneys' fees and disbursements),
penalty or fine incurred in connection with or arising from any injury to
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Tenant or to any other person or for any damage to, or loss (by theft or
otherwise) of, any of Tenant's property or of the property of any other person,
irrespective of the cause of such injury, damage or loss (including the acts or
negligence of any tenant or of any owners or occupants of adjacent or
neighborhood property or caused by operations in construction of any private,
public or quasi-public work) unless, subject to SECTION 24.8 hereof, due to the
gross negligence or willful misconduct of Landlord or Landlord's agents or
employees. However, even if such loss or damage is caused by the gross
negligence or willful misconduct of Landlord, its agents or employees, Tenant
waives, to the full extent permitted by law, any claim for consequential damages
(including, without limitation, lost profits) in connection therewith. To the
extent of Tenant's insurance coverage, Landlord, and its agents and employees,
shall not be liable, for any loss or damage to any person or property due to the
gross negligence of Landlord, its agents or employees.
(b) No (i) performance by Landlord, Tenant or others of any
repairs, improvements, alterations, additions, installations, substitutions,
betterments or decorations in or to the Demised Premises, (ii) failure of
Landlord or others to make any such repairs or improvements, (iii) damage to the
Demised Premises or Tenant's property, (iv) any injury to any persons, caused by
other tenants or persons in the Building, or by operations in the construction
of any private, public, or quasi-public work, or by any other cause, (v) latent
defect in the Building or the Demised Premises, or (vi) inconvenience or
annoyance to Tenant or injury to or interruption of the Tenant's business by
reason of any of the events or occurrence referred to in the foregoing
subdivisions (i) through (v) shall impose any liability on Landlord to Tenant,
other than, subject to SECTION 24.8, such liability as may be imposed upon
Landlord by law for Landlord's gross negligence.
(c) Tenant hereby indemnifies and holds harmless Landlord and
Landlord's agents, employees, contractors, officers, directors, shareholders,
partners or principals (disclosed or undisclosed) from any loss, cost,
liability, claim, damage, expense (including reasonable attorneys' fees and
disbursements), penalty or fine incurred in connection with or arising from (i)
any default by Tenant in the performance of any of the terms of this Lease on
Tenant's part to be performed, or (ii) the use or occupancy or manner of use or
occupancy of the Demised Premises by Tenant or any person claiming under Tenant,
or (iii) any acts, omissions or negligence of Tenant or any such person, or the
contractors, agents, employees, invitees, licensees, assignees or sublessees of
Tenant or any such person, (iv) any accident, injury or damage whatsoever caused
to any person or to the property of any person and occurring in or about the
Demised Premises, resulting or claimed to have resulted from an act or omission
of Tenant, or the contractors, agents, employees, invitees, licensees, assignees
or sublessees of Tenant, or (v) any claim made against Landlord or other
obligation, liability, cost or expense incurred by Landlord with respect to
toxic wastes, hazardous or dangerous materials or other similar substances
affecting the Demised Premises, whether such substances affect the Demised
Premises as the result of acts or omissions occurring before or during the term
of this Lease. Tenant's obligations under this SECTION 11.1 shall survive the
expiration or earlier termination of this Lease. Tenant shall pay to Landlord as
Additional Rent, within five Business Days after submission of Landlord to
Tenant of bills or statements therefor, sums equal to all losses, costs,
liabilities, claims, damages, fines, penalties and expenses referred to in this
SECTION 11.1.
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(d) The provisions of this SECTION 11.1 shall survive the
expiration or earlier termination of this Lease.
SECTION 11.2. TENANT'S WAIVER OF SUBROGATION. Tenant shall procure an
appropriate clause in, or endorsement to, each of its policies for fire and
extended coverage insurance, pursuant to which the insurance company waives
subrogation or consents to waiver of its right of recovery against Landlord.
Tenant shall not make any claim against or seek to recover from the Landlord for
any loss or damage to its property or the property of others covered by such
fire or extended coverage insurance.
SECTION 11.3. LANDLORD'S INDEMNITY AND TENANT'S NON-LIABILITY. (a)
Neither Tenant nor Tenant's agents, employees, contractors, officers, directors,
shareholders, partners or principals (disclosed or undisclosed) shall be liable
to Landlord or Landlord's agents, employees, contractors, officers, directors,
shareholders, partners or principals (disclosed or undisclosed) invitees or
licensees or any other occupant of the Demised Premises, and Landlord shall save
Tenant, its successors and assigns, and their respective agents, employees,
contractors, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) harmless from any loss, cost, liability, claim,
damage, expense (including reasonable attorneys' fees and disbursements),
penalty or fine incurred in connection with or arising from any injury to
Landlord or to any other person or for any damage to, or loss (by theft or
otherwise) of, any of Landlord's property or of the property of any other
person, irrespective of the cause of such injury, damage or loss (including the
acts or negligence of any tenant or of any owners or occupants of adjacent or
neighborhood property or caused by operations in construction of any private,
public or quasi-public work) unless due to the gross negligence or willful
misconduct of Tenant or Tenant's agents or employees. However, even if such loss
or damage is caused by the gross negligence or willful misconduct of Tenant, its
agents or employees, Landlord waives, to the full extent permitted by law, any
claim for consequential damages (including, without limitation, lost profits) in
connection therewith. To the extent of Landlord's insurance coverage, Tenant,
and its agents and employees, shall not be liable, for any loss or damage to any
person or property due to the gross negligence of Tenant, its agents or
employees.
(b) No (i) performance by Tenant, Landlord or others of any
repairs, improvements, alterations, additions, installations, substitutions,
betterments or decorations in or to the Demised Premises, (ii) failure of Tenant
or others to make any such repairs or improvements, (iii) damage to the Demised
Premises or Landlord's property, (iv) any injury to any persons, caused by other
tenants or persons in the Building, or by operations in the construction of any
private, public, or quasi-public work, or by any other cause, (v) latent defect
in the Building or the Demised Premises, or (vi) inconvenience or annoyance to
Landlord or injury to or interruption of the Landlord's business by reason of
any of the events or occurrence referred to in the foregoing subdivisions (i)
through (v) shall impose any liability on Tenant to Landlord, other than,
subject to SECTION 24.8, such liability as may be imposed upon Tenant by law for
Tenant's gross negligence.
(c) Landlord hereby indemnifies and holds harmless Tenant and
Tenant's agents, employees, contractors, officers, directors, shareholders,
partners or principals (disclosed or undisclosed) from any loss, cost,
liability, claim, damage, expense (including reasonable
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attorneys' fees and disbursements), penalty or fine incurred in connection with
or arising from (i) any default by Landlord in the performance of any of the
terms of this Lease on Landlord's part to be performed, or (ii) any acts,
omissions or negligence of Landlord or any such person, or the contractors,
agents, employees, invitees, licensees or assignees of Landlord or any such
person, (iii) any accident, injury or damage whatsoever caused to any person or
to the property of any person and occurring in or about the Demised Premises,
resulting or claimed to have resulted from an act or omission of Landlord, or
the contractors, agents, employees, invitees, licensees or assignees of
Landlord, or (iv) any claim made against Tenant or other obligation, liability,
cost or expense incurred by Tenant with respect to toxic wastes, hazardous or
dangerous materials or other similar substances affecting the Demised Premises,
caused by Landlord, or its contractors, agents, employees, invitees, licensees
or assignees, whether such substances affect the Demised Premises as the result
of acts or omissions occurring before or during the term of this Lease.
Landlord's obligations under this SECTION 11.3 shall survive the expiration or
earlier termination of this Lease. Tenant shall pay to Landlord as Additional
Rent, within five Business Days after submission of Landlord to Tenant of bills
or statements therefor, sums equal to all losses, costs, liabilities, claims,
damages, fines, penalties and expenses referred to in this SECTION 11.3.
(d) The provisions of this SECTION 11.3 shall survive the
expiration or earlier termination of this Lease.
SECTION 11.4. LANDLORD'S WAIVER OF SUBROGATION. Landlord shall procure
an appropriate clause in, or endorsement to, each of its policies for fire and
extended coverage insurance pursuant to which the insurance company waives
subrogation or consents to waiver of its right of recovery against Tenant.
Landlord shall not make any claim against or seek to recover from the Tenant for
any loss or damage to its property or the property of others covered by such
fire or extended coverage insurance.
ARTICLE 12
DAMAGE BY CASUALTY
SECTION 12.1. NOTICE. Upon Tenant's knowledge thereof, Tenant shall
give immediate written notice to Landlord of any damage caused to the Demised
Premises by fire or other casualty.
SECTION 12.2. RESTORATION OF IMPROVEMENTS. (a) In the event the Demised
Premises are damaged by fire or other casualty, Landlord shall, unless this
Lease is terminated as hereinafter provided, proceed with reasonable diligence
and continuity and at its sole cost and expense to repair the Demised Premises
to at least their condition prior to the fire or other casualty.
(b) If the Demised Premises shall be (i) totally destroyed or (ii)
so substantially damaged that Tenant, in the good faith judgment of its Board of
Directors, determines that the Demised Premises cannot reasonably be rebuilt in
a reasonable period of time (which shall be at least six months) given the needs
of Tenant's business, then in either such event Tenant may elect by written
notice to Landlord given within 60 days after the occurrence of such casualty,
to terminate this Lease, effective thirty days after the giving of notice to
Landlord; provided,
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however, that such election shall only be effective provided Tenant is not on
the date of the giving of notice of its election to terminate this Lease or upon
the date set for termination in default under this Lease, subject to any
applicable notice and cure provisions.
ARTICLE L3
EMINENT DOMAIN
SECTION 13.1. TAKING OF DEMISED PREMISES. If during the Term of this
Lease all of the Demised Premises shall be taken for any public or quasi-public
use under any statute or by right of eminent domain, or purchased under threat
of such taking, this Lease shall automatically terminate on the date on which
the condemning authority takes possession of the Demised Premises (hereinafter
called the "DATE OF SUCH TAKING"). If so much of the Demised Premises (but less
than all) is taken as shall render the Demised Premises untenantable in Tenant's
reasonable judgment, Tenant shall have the right to terminate this Lease by
giving written notice to the Landlord of termination within 30 days after the
Date of Such Taking.
SECTION 13.2. SURRENDER. On the date of any termination under SECTION
13.1, Tenant shall immediately surrender to Landlord the Demised Premises and
all interests therein under this Lease and Tenant shall pay Landlord Rent
through the date of termination (or through the Date of Such Taking if such date
shall not be the same as the date of termination). Landlord may re-enter and
take possession of the Demised Premises and remove Tenant therefrom.
SECTION 13.3. RENT ADJUSTMENT FOR PARTIAL TAKING. If any portion of the
Demised Premises (but less than the whole thereof) is so taken, and the Demised
Premises shall remain tenantable for Tenant's purposes, and this Lease shall not
terminate as above provided, the Rent thereafter payable under this Lease shall
be adjusted pro rata by Landlord in order to account for the resulting
reduction, if any, in the area of the Demised Premises.
SECTION 13.4. AWARDS. Upon any taking or purchase described in this
ARTICLE L3, Landlord shall be entitled to receive and retain the entire award or
consideration for the affected lands and improvements, and Tenant shall not have
nor advance any claim against Landlord or, except as provided in the immediately
following sentence, anyone else for the value of its property or its leasehold
estate under this Lease, or for the costs or removal or relocation, or business
interruption expense or any other damages arising out of such taking or
purchase. Nothing herein shall give Landlord any interest in or preclude Tenant
from seeking and recovering on its own account a separate award form the
condemning authority attributable to the taking or purchase of Tenant's trade
fixtures, or the removal or relocation of its business and effects, or the
interruption of its business provided that Landlord's award is not diminished
thereby. If any such award made or compensation paid to either party
specifically includes an award or amount for the other, the party first
receiving the same shall promptly account therefor to the other.
SECTION 13.5. RECONSTRUCTION. If this Lease shall not terminate as
above provided, Landlord shall proceed with reasonable diligence and continuity
and at its sole cost and expense (except as hereinafter provided) to repair the
Demised Premises to as nearly their condition prior to the taking or purchase as
feasible.
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ARTICLE 14
ACCESS
SECTION 14.1. ACCESS TO DEMISED PREMISES. Landlord and Landlord's
agents shall have the right (but shall not be obligated) to enter the Demised
Premises in any emergency at any time, and to perform any acts related to the
safety, protection or preservation thereof of the Building, if not performed by
Tenant. At other reasonable times, and upon reasonable notice, Landlord may
enter the Demised Premises upon prior notice to Tenants (a) to examine and make
such repairs and replacements as Landlord may deem necessary or reasonably
desirable to the Demised Premises, (b) for the purpose of complying with laws,
regulations and other requirements of governmental authorities or the provisions
of this Lease, or (c) for the purposes of showing the same to prospective
purchasers or mortgagees of the Building, and during the last six months of the
term for the purpose of showing the same to prospective tenants. If Tenant is
not present to open and permit an entry into the Demised Premises in an
emergency, Landlord or Landlord's agents may enter the same whenever such entry
may be necessary or permissible by master key, provided reasonable care is
exercised to safeguard Tenant's property. Such entry shall not render Landlord
or its agents liable therefor, nor in such event shall the obligations of Tenant
hereunder be affected.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
SECTION 15.1 CONSENT REQUIRED. (a) Tenant shall not, voluntarily or
involuntarily, by operation of law or otherwise, assign, mortgage, pledge,
encumber or in any manner transfer this Lease in whole or in part, nor sublet
all or any part of the Demised Premises, without the prior written consent of
Landlord in each instance, such consent not to be unreasonably withheld, and any
attempt to do any of such acts without such consent shall be null and void and
of no effect. Except as provided below with respect to the exercise by Landlord
or Siemens Medical Systems, Inc. ("Siemens") of their respective rights under
the put/call described below, a transfer of control of Tenant, including,
without being limited to, a transfer of stock or partnership interest or the
merger, consolidation, sale of all or substantially all of the other assets of
Tenant or other corporate or other reorganization of Tenant (whether or not
Tenant shall be the surviving entity), shall be deemed an assignment under this
Lease and shall be subject to all the provisions of this Article, including the
requirement of obtaining Landlord's prior consent. The consent by Landlord to
any assignment, mortgage, pledge, encumbrance, transfer or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment, mortgage, pledge, encumbrance, transfer or subletting.
Notwithstanding the foregoing, the exercise by Landlord of its right to put its
shares of Tenant to Siemens, or the exercise by Siemens of its right to call the
shares of Tenant of Landlord, under the Stock Purchase, Reorganization and Joint
Venture Agreement among Landlord, Siemens and others relating to Tenant dated as
of December 10, 1987, as amended, shall not constitute an assignment of this
Lease and this Lease shall in such event remain in full force and effect.
(b) If this Lease be assigned, or if the Demised Premises or any
part thereof be sublet or occupied by anyone other than Tenant, Landlord may
collect Rent from the assignee,
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subtenant or occupant, and apply the net amount collected to the Rent herein
reserved, but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained.
(c) Notwithstanding any assignment, mortgage, pledge, encumbrance,
transfer or sublease of this Lease, Tenant shall remain fully liable for the
performance of all of the terms, covenants, obligations and conditions of this
Lease and shall not be released therefrom.
(d) Notwithstanding any other provision of this ARTICLE 15, Tenant
may assign this Lease to any affiliate of Landlord, provided Landlord remains
liable for such affiliate's performance, including payment of rent, hereunder.
ARTICLE 16
BANKRUPTCY
SECTION 16.1 BANKRUPTCY. If at any time alter the execution and
delivery of this Lease, there shall be tiled by or against Tenant in any court
pursuant to any statute either of the United States or of any State a petition
in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee or conservator of all or a portion of Tenant's property, or
if Tenant makes an assignment for the benefit of creditors, this Lease, at the
option of Landlord to be exercised within sixty (60) days after notice of the
happening of any one or more of such events, may be canceled and terminated, and
in any such event of termination neither Tenant nor any person claiming through
or under Tenant or by virtue of any statute or of an order of any court shall be
entitled to possession or to remain in possession of the Demised Premises but
shall forthwith quit and surrender the Demised Premises, and Landlord, in
addition to the other rights and remedies granted by virtue of any other
provision in this Lease or by virtue of any statute or rule of law, may retain
as damages any Rent, security deposit, or moneys received by it from Tenant or
others on behalf of Tenant.
SECTION 16.2. MEASURE OF DAMAGES. In the event of the termination of
this Lease pursuant to SECTION 16.1, Landlord shall be entitled to the same
rights and remedies as set forth in ARTICLE 17.
ARTICLE 17
TENANT'S DEFAULT
SECTION 17.1. EVENTS OF DEFAULT. This Lease and the term and estate
hereby granted are subject to the limitation that:
(a) Whenever Tenant shall have failed to pay any installment of
Rent, or any portion thereof when the same shall be due and payable, and Tenant
shall have failed to pay same for a period of ten business days after notice of
such payment from Landlord; or
(b) Whenever Tenant shall have failed to comply with, shall have
violated or shall be in default in the performance of any other provision of
this Lease and Tenant shall have failed to
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cure such default within fifteen (15) business days after notice from Landlord
of such noncompliance, violation or default (in the case of a default which
cannot with due diligence be cured within a period of ten days, Tenant shall
have such additional time, not to exceed sixty (60) days, to cure same as may
reasonably be necessary, provided Tenant commences curing such default within
the ten day period and proceeds promptly, effectively, continuously and with due
diligence to cure such default after receipt of said notice and Landlord, in its
reasonable judgment determines that the passage of such additional time shall
not subject the Landlord, the Premises, any third party or any other physical
property to any risk or liability); or
(c) Whenever Tenant shall abandon the Demised Premises; or
(d) Whenever Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises and/or the Building and such lien is
not discharged or removed or bonded within thirty (30) days of its imposition;
then regardless and notwithstanding the fact that Landlord has or may have some
other remedy under this Lease or by virtue hereof, or in law or in equity,
Landlord may give to Tenant a notice ("TERMINATION NOTICE") of intention of
Landlord to end the term of this Lease specifying a day not less than five
business days thereafter and, upon giving the Termination Notice, this Lease and
the term and estate hereby granted shall expire and terminate upon the day so
specified in the Termination Notice as fully and completely and with the same
force and effect as if the day so specified were the Expiration Date and all
rights of Tenant shall terminate and Tenant shall remain liable for damages as
hereinafter provided. From and after any date upon which Landlord is entitled to
give a Termination Notice, Landlord, without further notice, may enter upon,
re-enter, possess and repossess itself of the Demised Premises, by appropriate
legal proceedings, and may dispossess and remove Tenant and all other persons
and property from the Demised Premises and may have, hold and enjoy the Demised
Premises and the right to receive all rental and other income of and from the
same. As used in this Lease the words "enter" and "re-enter" are not restricted
to their technical legal meanings. Upon and after such entry into possession
Landlord shall use commercially reasonable efforts to re-let the Demised
Premises, or any part thereof, for the account of Tenant, to any person, firm or
corporation, other than Tenant, for such Rent, for such time and upon such terms
as Landlord, in Landlord's sole discretion, shall determine, and Landlord shall
not be required to accept any tenant offered by Tenant or to observe any
instruction given by Tenant about such re-letting.
SECTION 17.2. DAMAGES. (a) Tenant covenants and agrees that in the
event of the expiration or termination of this Lease or re-entry by Landlord,
under any of the provisions of this ARTICLE 17 or pursuant to law, by reason of
default hereunder on the part of Tenant after the expiration of any applicable
notice and cure periods, Tenant shall pay to Landlord, as damages with respect
to this Lease, sums equal to the Rent which would have been payable by Tenant
had this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the days specified in this Lease following such
termination or such re-entry and until the expiration date of the Lease
provided, however, that if the Demised Premises shall be leased or re-let during
said period, Landlord shall credit Tenant with the net rent, if any, received by
Landlord from such leasing or re-letting, such net rent to be determined by
first deducting from the gross rents as and when received by Landlord from such
leasing or re-letting the reasonable
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expenses incurred or paid by Landlord in terminating this Lease or of reentering
the Demised Premises and of securing possession thereof, as well as the
reasonable expense of leasing and re-letting, including altering and preparing
any portion of the Demised Premises for new tenants, brokers' commissions and
all other expenses properly chargeable against the Demised Premises and the
rental therefrom; but in no event shall Tenant be entitled to receive any excess
of such net rents over the Rent payable by Tenant to Landlord hereunder.
(b) Suit or suits for the recovery of any and all damages, or any
installments thereof, provided for hereunder may be brought by Landlord from
time to time at its election, and nothing contained herein shall be deemed to
require Landlord to postpone suit until the date when the term of this Lease
would have expired if it had not been terminated under the provisions of this
ARTICLE 17, or under provisions of any law, or had Landlord not re-entered the
Demised Premises.
(c) Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any damages to which
Landlord may lawfully be entitled in any case other than those particularly
provided for above.
SECTION 17.3. WAIVER OF JURY TRIAL. The parties hereto shall and they
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Demised Premises, and/or
any claim of injury or damage.
ARTICLE 18
SURRENDER
SECTION 18.1. POSSESSION. Upon the expiration or earlier termination of
this Lease, Tenant shall immediately quit and surrender possession of the
Demised Premises in as good a state and condition as they were when entered
into, reasonable wear and tear and casualty damage (other than that which Tenant
is obligated to repair) and approved or permitted alterations excepted. Upon
such surrender, all right, title and interest of Tenant in the Demised Premises
shall cease.
SECTION 18.2. TENANT'S PROPERTY. After the expiration or other
termination of the Lease all of Tenant's trade fixtures, personal property, and
improvements remaining in the Demised Premises shall be deemed conclusively to
have been abandoned by Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by Landlord without notice or obligation to compensate
Tenant or to account therefor, and Tenant shall pay to Landlord on written
demand all costs incurred by Landlord in connection therewith.
SECTION 18.3. MERGER. The voluntary or other surrender of this Lease by
Tenant or the cancellation of this Lease by mutual agreement of Tenant and
Landlord shall not work a merger, but shall, at Landlord's option, terminate all
or any subleases and subtenancies or operate as an assignment to Landlord of all
or any subleases or subtenancies. Landlord's option hereunder
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shall be exercised by notice to Tenant and all known sublessee or subtenants in
the Demised Premises or any part thereof.
SECTION 18.4. PAYMENTS AFTER TERMINATION. No payments of money by
Tenant to Landlord after the expiration or other termination of the Term or
after the giving of any notice (other than a demand for payment of money) by
Landlord to Tenant, shall reinstate, continue or extend the term or make
ineffective any notice given to Tenant prior to the payment of such money. After
the service of notice or the commencement of a suit, or after final judgment
granting Landlord possession of the Demised Premises, Landlord may receive and
collect any sums of Rent due under this Lease, and the payment thereof shall not
make ineffective any notice, or in any manner effect any pending suit or any
judgment theretofore obtained.
ARTICLE 19
CONDITION OF DEMISED PREMISES
SECTION 19.1. CONDITION OF DEMISED PREMISES. Tenant acknowledges that
the Demised Premises shall be delivered in "as is" condition and that any
additional work required to be performed shall be performed at Tenant's sole
cost and expense.
ARTICLE 20
REMEDIES CUMULATIVE
SECTION 20.1. NO WAIVER. No waiver by Landlord or Tenant of a breach of
any covenant, agreement, obligation or condition of this Lease shall be
construed to be waiver of any future breach of the same or any other covenant,
agreement, obligation or condition hereof. No receipt of money by Landlord from
Tenant after notice of default, or after the termination of this Lease or the
commencement of any suit or final judgment of possession of the Demised
Premises, shall reinstate, continue or extend the term of this Lease or affect
any notice, demand or suit. The rights and remedies hereby created are
cumulative, and the use of one remedy shall not be construed to exclude or waive
the right to the use of another, or exclude any other right or remedy allowed by
law.
ARTICLE 21
ESTOPPEL CERTIFICATE, SUBORDINATION, ATTORNMENT
SECTION 21.1. ESTOPPEL CERTIFICATE. Tenant shall at any time upon the
request of Landlord, execute and deliver in form prepared by Landlord, an
estoppel certificate certifying: The Commencement Date; the Expiration Date; the
date to which Rent has been paid; that this Lease is in full force and effect
and has not been modified or amended (or if modified or amended, describing the
same) and that to Tenant's knowledge there are no defenses or offsets thereto or
defaults of Landlord under this Lease (or if any be claimed, describing the
same); and such other matters as Landlord may reasonably request. Tenant's
failure to deliver such certificate within 10 days of the demand therefore shall
be a default hereunder; provided, however, that Tenant shall not be required to
execute and deliver more than two such estoppel certificates during any calendar
year.
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SECTION 21.2. SUBORDINATION. This Lease is and shall be subject and
subordinate to all ground or underlying leases and deeds of trust which now or
hereafter affect the Demised Premises and/or any ground or underlying leases
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof provided that Landlord procures, for the benefit to Tenant, a
non-disturbance and attornment agreement, in customary form and substance, from
the beneficiary under any such deed of trust or the ground lessor under any
ground lease affecting the Land or the Building or the Demised Premises. Except
as provided in the immediately preceding sentence, the provisions of this
section shall be automatic and shall not require any further action. In
confirmation of such subordination, Tenant will execute and deliver upon demand
of Landlord any and all instruments desired by Landlord subordinating this Lease
to such lease or deed of trust. Landlord is hereby irrevocably appointed and
authorized as agent and attorney-in-fact of Tenant to execute and deliver all
such subordination instruments in the event Tenant fails to execute and deliver
said instruments within 10 days after notice from Landlord requesting the
execution thereof.
SECTION 21.3. ATTORNMENT. If the interest of Landlord shall be acquired
by any Mortgagee (as used herein the term "MORTGAGEE" shall include any holder
of a mortgage or deed of trust encumbering the Demised Premises and any
purchaser of the Demised Premises at foreclosure) by foreclosure or other
proceedings to enforce the rights of the holder of any mortgage or deed of trust
encumbering the Demised Premises, and such Mortgagee succeeds to the interest of
Landlord hereunder, this Lease and the rights of Tenant hereunder shall continue
in full force and effect and shall not be terminated or disturbed except in
accordance with the terms hereof, and Tenant shall be bound to such Mortgagee
under all of the terms, covenants and conditions of this Lease for the balance
of the term then remaining, and extensions or renewals thereof that may be
effected in accordance with the options contained herein, with the same force
and effect as if such Mortgagee were the lessor or landlord hereunder and Tenant
the lessee under the Lease. In such event, Tenant agrees to and does hereby
attorn to such Mortgagee as its lessor, such attornment to be effective and
self-operative immediately upon such Mortgagee succeeding to the interest of
Landlord under the Lease. Tenant shall thereafter pay rent to Mortgagee from and
after the time that Tenant receives written notice from Mortgagee that it has
succeeded to the interest of Landlord under the Lease. The respective rights and
obligations of Tenant and such Mortgagee upon such attornment, to the extent of
the then remaining balance of the term of the Lease and any extension or
renewal, thereof, shall be and are the same as now set forth in this Lease.
ARTICLE 22
QUIET ENJOYMENT
SECTION 22.1. QUIET ENJOYMENT. Landlord covenants and agrees with
Tenant that upon payment by Tenant of the Basic Rent any other charges hereunder
and upon the observance and performance of all of the terms, covenants and
conditions on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the Demised Premises, subject, nevertheless, to the terms and
conditions of this Lease (including, without being limited to, the provisions of
ARTICLE 21).
ARTICLE 23
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NOTICES
SECTION 23.1. NOTICES. Whenever any notice or consent is required or
permitted hereunder, such notice or consent shall be in writing. Any notice or
document required or permitted to be delivered hereunder shall be deemed to be
delivered on the second business day after it is deposited in the United States
Mail, postage prepaid, Registered or Certified Mail, Return Receipt Requested,
addressed to the parties hereto at the addresses set forth in ARTICLE 1, or at
such other addresses as they have theretofore specified by written notice
delivered in accordance herewith, or when actually received if sent by
recognized courier service or by hand delivery.
ARTICLE 24
MISCELLANEOUS PROVISIONS
SECTION 24.1. SURVIVAL OF TENANT'S OBLIGATION. Tenant's obligation to
pay Rent under this Lease shall survive termination of this Lease.
SECTION 24.2. APPLICABLE LAW AND CONSTRUCTION. (a) This Lease shall be
governed by and construed under the laws of the State of Tennessee.
(b) The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
tenant and to either corporations, associations, partnerships or individuals,
males or females, shall in all instances be assumed as though fully expressed.
If there is more than one person or entity who or which are the Tenant under
this Lease, the obligations imposed upon Tenant under this Lease shall be joint
and several. The relationship between Landlord and Tenant created hereunder
shall be that of lessor and lessee and nothing herein shall be construed as
creating any joint venture or partnership. The captions used in this Lease are
for convenience only and do not in any way limit or amplify the terms and
provisions hereof.
SECTION 24.3. PARTIES BOUND. It is agreed that this Lease, and each and
all the covenants and obligations hereof, shall be binding upon and inure to the
benefit of, as the case may be, the parties hereto, their respective heirs,
executors, administrators, successors and assigns, subject to all agreements and
restrictions herein contained with respect to assignment or other transfer of
Tenant's interest herein.
SECTION 24.4. NO REPRESENTATIONS BY LANDLORD. Neither Landlord nor
Landlord's agents have made any representations or promises with respect to the
physical condition of the Demised Premises, permissible uses of Demised
Premises, the expenses of operation or any other matter or thing affecting or
related to the Demised Premises except as herein expressly set forth, and no
rights, easements, or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this Lease. Tenant
has inspected the Demised Premises and is thoroughly acquainted with their
condition, and agrees to accept the same "as is". All understandings and
agreements heretofore made between the parties hereto are merged in this Lease,
which alone fully and completely expresses the agreement between Landlord and
Tenant, and any executory agreement hereafter made shall be ineffective to
change, modify,
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discharge or effect an abandonment of it, in whole or in part, or a surrender of
this Lease or of the Demised Premises or any part thereof or of any interest of
Tenant therein unless such executory agreement is in writing and signed by
Landlord and Tenant.
SECTION 24.5. BROKERS. Tenant warrants that it has had no dealings with
any broker, agent or any other person in connection with the Demised Premises.
Tenant agrees to indemnify and hold harmless Landlord from and against any and
all cost, expense, or liability for commissions or other compensation and
charges claimed by any broker or agent with respect to this Lease on account of
Tenant's acts. The provisions of this SECTION 24.5 shall survive the expiration
or earlier termination of this Lease.
SECTION 24.6. SEVERABILITY. The invalidity or unenforceability of any
provision of this Lease shall not affect or impair the validity of any other
provision.
SECTION 24.7. DEFINITION OF LANDLORD. As used in this Lease, the term
"LANDLORD" shall mean only the owner, or the mortgagee in possession, for the
time being, of the Demised Premises, so that in the event of any sale of the
Demised Premises or of said lease, or in the event of a lease of the Demised
Premises, said Landlord shall be and hereby is entirely freed and relieved of
all covenants and obligations of Landlord hereunder thereafter to be performed
or observed and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
any such purchaser or lessee, that such purchaser or lessee has assumed and
agreed to perform and observe any and all covenants and obligations of Landlord
hereunder.
SECTION 24.8. EXCULPATORY CLAUSE. All separate and personal liability
of Landlord or any officer, director, partner or principal (disclosed or
undisclosed) thereof of every kind or nature, if any, is waived by Tenant, and
by every person now or hereafter claiming by, through or under Tenant; and
Tenant shall look solely to Landlord's estate in the Demised Premises for the
payment of any claim against Landlord.
SECTION 24.9. NO RECORDING. Tenant shall not record this Lease, or any
portion or any reference hereto. In the event Tenant records this Lease, or
permits or causes this Lease, or any portion hereof or reference hereto to be
recorded, this Lease shall terminate at Landlord's option or Landlord may
declare a default hereunder and pursue any and all of its remedies provided in
this Lease. Notwithstanding the foregoing, however, Tenant shall have the right
to record a memorandum of this Lease in form acceptable to Landlord. Not later
than five days after the expiration or earlier termination of this Lease,
Tenant, at his sole cost and expense shall take all necessary actions to remove
or release the Memorandum of Lease from recordation against the Demised
Premises. In the event that Tenant fails to do so in such five days period,
Landlord shall have the right to do so in Tenant's name and Tenant hereby
irrevocably grants Landlord a power of attorney to act on Tenant's behalf for
such purposes.
SECTION 24.10. ENTIRE AGREEMENT; MODIFICATION. This Lease contains the
entire agreement of the parties with respect to the subject matter hereof, and
cannot be amended or modified except by written agreement. This Lease supercedes
all prior leases and related agreements between the parties hereto with respect
to the premises described herein, including,
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but not limited to, the Lease Agreement between Landlord's
predecessor-in-interest, CTI, Inc., and Tenant dated as of August 20, 2000.
ARTICLE 25
OPTION TO RENEW
SECTION 25.1. OPTION TO RENEW. Provided that Tenant is not in default
hereunder beyond any applicable notice and cure periods on the date of the
Notice to Renew (as hereinafter defined) or on the expiration date of the
Initial Term or the first Renewal Term, as the case may be, Tenant shall have
the right to extend the term of this Lease for the Renewal Term(s) described in
ARTICLE 1 hereof, upon the same terms and conditions as are herein provided
except that the Basic Rent during said Renewal Term shall be as set forth in
SECTION 3.4 and there shall be no Landlord's contribution for additional
alterations to the improvements. Such right shall be exercised by Tenant by
giving notice to Landlord at least six months prior to the expiration date of
the applicable term (the "NOTICE TO RENEW"). Time shall be of the essence for
the exercise of such option. Tenant shall have no further right to extend or
renew this Lease.
IN WITNESS WHEREOF, that parties hereto have caused this Lease to be
executed as of the date first above written.
LANDLORD:
CTI MOLECULAR IMAGING, INC.
By: /s/ Terry D. Douglass
--------------------------------------------
Name: Terry D. Douglass, Ph.D
Title: President and Chief Executive Officer
TENANT:
CTI PET SYSTEMS, INC.
By: /s/ Ronald Nutt
--------------------------
Name: Ronald Nutt
Title: President
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