LEASE AGREEMENT
THIS LEASE, made and entered effective as of the 1st day of October, 1997,
by and between MEDCATH OF TUCSON, L.L.C., a North Carolina limited liability
company (the "Lessor"), and CCT, L.L.C., a North Carolina limited liability
company (the "Lessee").
W I T N E S E T H:
Lessor hereby leases unto Lessee, and Lessee hereby leases from the Lessor,
upon the terms and conditions hereinafter set forth, approximately 7,840 square
feet of space of the Lessor's facility known as the Tucson Heart Hospital
(hereinafter called the "Building"), located in Tucson, Arizona in which
location Lessee shall own and operate cardiac catheterization laboratories (the
"Premises").
ARTICLE 1
TERM OF LEASE
Section 1.1 Term. The term of this Lease ("Term") shall commence upon the
execution hereof and shall continue in force for a period of five (5) years
after the Rent Commencement Date, as defined herein.
Section 1.2 Acceptance of Premises. Lessor has made no representations or
promises with respect to the Building, Premises or this Lease except as set
forth herein.
Section 1.3 Option to Renew. Provided Lessee is not in default of any
provisions of this Lease at the expiration of the current Term, the Term of this
Lease shall be automatically renewed and continue in force for a period of
fifteen (15) consecutive one (1) year option terms, unless either party gives
written notice of termination to the other no later than sixty (60) days prior
to the expiration of the then current Term.
Section 1.4 Surrender of the Premises. The Lessee shall keep the Premises
in good order and repair, except the portions thereof to be repaired by the
Lessor as provided herein, and upon the expiration or other termination of this
Lease, quit and surrender the Premises to the Lessor in the same condition as at
the commencement of the term, natural wear and tear only excepted.
ARTICLE 2
RENT
Section 2.1 Commencement. The Rent Commencement Date shall be the day the
Tucson Heart Hospital is first open for business and is entitled to receive
Medicare certification. Upon request of either party hereto, Lessor and Lessee
agree to execute and deliver a written declaration expressing the Rent
Commencement Date.
Section 2.2 Rent. Lessee shall pay to Lessor at the Lessor's office or at
such place as Lessor may from time to time designate in writing, Base Rent, as
described herein, and Additional Rent, as described herein, (collectively
referred to from time to time as "Rent") during the lease term as follows:
Section 2.3 Base Rent. Beginning with the Rent Commencement Date, and
continuing for the full term of this Lease, Lessee shall pay to Lessor an amount
of One Hundred Sixty-Four Thousand and Six Hundred Forty Dollars ($164,640) per
year, (the "Base Rent"), one-twelfth (1/12) of which shall be paid in advance on
the first day of each month and shall be prorated for any portion of a month at
the beginning or end of the lease Term.
Section 2.4 Additional Rent. In addition to the foregoing Base Rent, Lessee
shall pay as additional rent Fourteen Thousand Four Hundred Seven Dollars
($14,407) per month for the Additional Services. The Additional Rent shall be
due and payable by Lessee to Lessor in advance on the first day of each month
during the Term.
Notwithstanding anything in this Lease to the contrary, in the event any
payment of Base Rent or Additional Rent is more than thirty (30) days past due,
such past due amount shall bear interest at the rate of eighteen percent (18%)
per annum (or the highest lawful rate allowable if less than 18%) until paid in
full, with said interest to be due and payable by Lessee to Lessor, upon written
demand.
ARTICLE 3
CONDITION OF IMPROVEMENTS
Section 3.1. Alterations or Improvements by Lessor. Lessor shall upfit the
Premises in accordance with the plans and specifications mutually agreed upon by
Lessor and Lessee (the "Lessor's Work"). Upon completion of Lessor's Work,
Lessor shall deliver the Premises to Lessee in move-in condition. Lessor and
Lessee shall cooperate with one another so that all of Lessee's cardiac
catheterization equipment can be timely and properly installed in the Premises.
Section 3.2 Additional Services. Lessor shall furnish the Premises with the
following "Additional Services": linen and laundry service, utilities, hotel
services (janitorial services, routine maintenance, etc.), management
information systems, telephones and facility and maintenance supplies for which
Lessee shall pay to Lessor the Additional Rent.
The Lessor shall not be liable for failure to furnish or delay in
furnishing Additional Service when such failure is caused by circumstances
beyond Lessor's reasonable control including, but not limited to, special
equipment requirements of Lessee, a strike or labor controversy, a riot, the
inability to secure fuel for the Building, any accident or casualty.
Section 3.3 Alterations or Improvements by Lessee. The Lessee shall have
the rights, from time to time, to make improvements or alterations to the
Premises, subject to the following conditions:
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(a) No material improvement or alteration shall at any time be made
which shall impair the structural soundness or diminish the value of the
Building.
(b) No improvement or alteration shall be undertaken until the Lessee
shall have procured and paid for all required municipal and other
governmental permits and authorizations of the various municipal
departments and governmental subdivisions having jurisdiction.
(c) All work done in connection with any improvements or alterations
shall be done in a good and workmanlike manner and in compliance with all
building and zoning laws, and with all other laws, ordinances, rules, and
requirements of any federal, state or municipal government or agency having
jurisdiction and shall be completed free of all mechanics or materialmen's
liens.
(d) Any improvement or alteration to the Premises, except moveable
furniture, trade fixtures, medical equipment, and any cabinets placed by
Lessee in the leased Premises, shall at once become the absolute property
of the Lessor and remain upon and be surrendered with the Premises as a
part thereof at the termination of this Lease without disturbance or
injury.
Section 3.4 Repairs. Lessor shall be responsible for routine repairs or
improvements to the Building.
Lessee shall not cause or permit any waste, damage, or injury to the
Premises. Lessee, at its sole expense, shall keep the Premises as now or
hereafter constituted with all improvements made thereto in good condition
(reasonable wear and tear excepted).
Lessee shall indemnify the Lessor against all costs, expenses, liabilities,
losses, damages, suits, fines, penalties, claims, and demands, including
reasonable counsel fees, because of Lessee's failure to comply with the last
preceding paragraph, and the Lessee shall not call upon the Lessor for any
disbursement or outlay whatsoever in connection therewith, and expressly
releases and discharges the Lessor of and from any liability therefor.
Section 3.5 Inspection. Lessor shall have the right to enter and grant
licenses to others to enter the Premises at any time during all reasonable hours
and upon the approval of Lessee to examine the same or to make such repairs,
additions or alterations as may be deemed necessary for the safety, comfort or
preservation thereof, or of the Building and to exhibit the Premises to
prospective tenants or purchasers and for the purpose of removing placards,
signs, fixtures, alterations or additions which do not conform to the terms of
this Lease or to the rules and regulations of the Building; provided, however
that such activities will not unreasonably interfere with Lessee's operation of
its cardiac laboratory.
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ARTICLE 4
USE OF PREMISES
Section 4.1 Use of Premises. The Premises shall be used and occupied by the
Lessee solely for the purpose of operating cardiac catheterization laboratories.
Section 4.2 Enjoyment of Premises. The Lessee, on paying the Base Rent,
Additional Rent and any other rent sums due under Article 2 hereof and keeping
and performing the agreements and covenants herein contained, shall have the
peaceful and quiet enjoyment of the Premises for the term hereof subject,
however, to the provisions of this Lease.
Section 4.3 Removal of Personal Property. The Lessee may remove all
personal property which Lessee has placed in the Premises, provided Lessee
repairs all damages to the Premises caused by such removal. If the Lessee shall
fail to remove all such property from the Premises upon the termination of this
Lease for any cause whatsoever, the Lessor may, at its option, remove the same
in any manner that the Lessor shall and store it without liability to the Lessee
for loss thereof. In such event, the Lessee shall pay to Lessor on demand any
and all expenses incurred in such removal, including court costs, attorney's
fees, and storage charges for the length of time the same shall be in the
Lessor's possession. Alternatively, the Lessor may, at its option, without
notice, and without legal process, sell the property or any part thereof at a
private sale for such price as the Lessor may obtain, and apply the proceeds of
the sale to any amounts due under this Lease and the expenses incident to
removal and sale of said property.
Section 4.5 Signs. Lessee may place signs upon corridor doors of the
Premises.
ARTICLE 5
ASSIGNMENT AND SUBLETTING
Section 5.1 Assignment and Subletting. The Lessee shall not assign this
Lease or sublet the Premises or any part thereof, without the written consent of
the Lessor, which consent shall not be unreasonably withheld. The Premises shall
be used and occupied by the assignee or sublessee solely for the purpose of
operating cardiac catheterization laboratories and the assignee or sublessee
shall meet and be capable of meeting all terms and conditions of Lease and shall
agree in writing to be bound by all terms and conditions contained herein and
provided that any consents by third parties such as lenders have been obtained.
Section 5.2 Transfer of Lessor's Interest. In the event of the sale,
assignment or transfer by the Lessor of its interest in the Building or in this
Lease (other than a collateral assignment to secure a debt of the Lessor) to a
successor in interest who expressly assumes the obligations of the Lessor under
this Lease, the Lessor shall be released and discharged from all of its
covenants and obligations under this Lease, except obligations which have
accrued prior to any sale, assignment or transfer, and Lessee agrees to look
solely to the Lessor's successor in interest for performance of such
obligations. The Lessor's assignment of the Lease or of its interest in the
Building shall not affect the Lessee's obligations under this Lease. The Lessee
shall attorn and look to the Lessor's assignee, as landlord, provided the Lessee
has first received written notice of
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the assignment of the Lessor's interest. The Lessor shall have the right to
freely sell, assign or otherwise transfer its interest in the Building and/or
this Lease.
ARTICLE 6
DAMAGE OR DESTRUCTION TO THE PREMISES
Section 6.1 Loss or Damage and Insurance. The Lessor shall not be liable
for any damage to property in the Premises or on or near the Building caused by
gas, smoke, steam, electricity, ice, rain, or snow which may leak from any part
of the Building, or from pipes, appliances or plumbing works. The Lessor shall
not be liable for any damage to persons or property sustained by Lessee or
others due to the Building or any part thereof being out of repair or due to the
happening of accident in or about the Building or due to any negligence of any
tenant or occupant of the Building, or any other person, other than the Lessor
or its agents. Notwithstanding the foregoing, the Lessor shall be liable for
failure to make repair in the event Lessor has been notified of the need for
repair or otherwise has knowledge of the need of repair but has been negligently
dilatory and without cause in its failure to make repair.
Lessee shall indemnify, hold harmless and defend Lessor from and against
any and all claims, actions, damages, liability and expense, including, but not
limited to, attorney's and other professional fees, in connection with loss of
life, personal injury and/or damage to property arising from or out of the
occupancy or use by Lessee of the Premises or any part thereof or any other part
of the Building, occasioned wholly or in part by any act or omission of Lessee,
its officers, agents, contractors, employees or invitees.
During the term of this Lease, Lessee will carry and maintain, at its
expense (a) public liability insurance including, but not limited to, insurance
against assumed or contractual liability under this Lease, with respect to the
Premises, to afford protection with limits which are reasonably acceptable to
Lessor respect to property damage; (b) all-risks property and casualty
insurance, written at replacement cost value and with replacement cost
endorsement, covering all of Lessee's personal property in the premises
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture and other property removable by Lessee under the provisions of this
Lease) and all leasehold improvements installed in the Premises by or on behalf
of Lessee; and (c) if and to the extent required by law, worker's compensation
or similar insurance in form and amounts required by law. If Lessee shall fail
to perform its obligations to maintain the required insurance, Lessor may
perform the same and the cost thereof shall be deemed additional rent and shall
be payable upon Lessor's demand.
The Lessor shall keep the Building insured against loss or damage by fire,
in an amount not less than ninety percent (90%) of the full insurable value as
determined from time to time (or in such other amounts and under such other
policies as may be required to comply with any laws of the State of Arizona. The
term "full insurable value" shall mean actual replacement cost (exclusive of the
cost of excavation, foundations, and footings below the basement floor) without
deduction for physical depreciation. Such insurance shall be issued by
financially responsible insurers duly authorized to do business in Arizona.
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Section 6.2 Condemnation. If the whole or any part of the Premises shall be
taken by any public authority under the power of eminent domain, then the terms
of this Lease shall cease as to the part taken on the date possession of that
part is surrendered and any unearned rent for such part paid or credited in
advance shall be refunded. The Lessee shall not be entitled to receive any part
of any award or awards that may be made or received by the Lessor. The Lessee
may at its own expense commence independent proceedings against the public
authority exercising the power of eminent domain to prove and establish any
other damage Lessee may have incurred.
Section 6.3 Casualty. If all or any part of the Premises is damaged or
destroyed by fire or other casualty, through no fault of Lessee, insured under
the standard fire insurance policy with approved standard extended coverage
endorsement applicable to the Premises and Building, the Lessor shall, except as
otherwise provided herein (but only to the extent the holder of the mortgage
lien on the building permits release of the insurance proceeds), repair and
rebuild the Premises with reasonable diligence, and if there is a substantial
interference with the operation of the Lessee's laboratory in the Premises
requiring the Lessee temporarily to close its laboratory, the rental shall be
equitably apportioned for the duration of such repairs in proportion to the
extent to which there is interference with the operation of the Lessee's
laboratory. Notwithstanding the foregoing provisions, in the event the Premises
shall be damaged by fire or other insured casualty due to the fault or neglect
of the Lessee, or the Lessee's servants, employees, contractors, agents,
visitors, or licensees, then, without prejudice to any other rights and remedies
of the Lessor, and provided the damage is repaired by the Lessor, there shall be
no apportionment or abatement of any rent. Except to the extent provided for in
this paragraph, neither the rent payable by the Lessee nor any of the Lessee's
other obligations under any provision of this Lease shall be affected by any
damage to or destruction of the Premises by any cause whatsoever, and the Lessee
hereby expressly waives any and all additional rights it might otherwise have
under any law or statute.
ARTICLE 7
DEFAULT
Section 7.1 Defaults. In the event (i) the Lessee defaults in the payment
of rent for a period of ten (10) days after receipt of notice by Lessor of such
default; (ii) the Premises are vacated; (iii) the Lessee fails to comply with
any term of this Lease (other than payment of rent) or any of the rules and
regulations now or hereafter established for the government of the Building;
(iv) any proceeding, whether voluntary of involuntary, is instituted for the
Lessee because of his insolvency or the Lessee becomes insolvent or makes a
transfer in fraud of creditors; or (v) the Lessee makes an assignment for the
benefit of creditors; then, in any such event, the Lessor may (i) terminate this
Lease by giving written notice to Lessee, and declare the entire amount of rent
which would become due, immediately due and payable; (ii) take possession of the
Premises and enter the leased Premises as agent of the Lessee and relet them for
such rent as is obtainable by reasonable effort and collect the deficiency from
the Lessee plus collect all costs of reletting, including lease commissions,
attorney's fees and upfitting costs which Lessor deems necessary for a new
tenant; or (iii) pursue any other remedies which may be provided by law;
provided, however, that should any event or condition described in items (ii) -
(v) of this section occur, such event or condition shall not constitute a
default should such event or
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condition be cured to the satisfaction of Lessor within thirty (30) days from
the occurrence of such event or condition, or a reasonable period of time in
addition thereto if circumstances are such that the default cannot be reasonably
cured within thirty (30) days and the Lessee promptly takes action to cure such
default and pursues such action with due diligence.
Section 7.2 Rights and Remedies. All rights and remedies of the Lessor
herein shall be cumulative, and none shall be exclusive of any other, or of any
rights and remedies allowed by law, and pursuit of any one of said rights or
remedies does not preclude pursuit of any one or more of the other of said
rights or remedies.
Section 7.3 Costs of Suit. If Lessee or Lessor shall bring an action for
any relief against the other, declaratory or otherwise, arising out of this
Lease, including any suit by Lessor for the recovery of rent or possession of
the Premises, the prevailing party shall be entitled to recover all reasonable
costs and expenses associated with such action, including reasonable attorneys'
fees, from the nonprevailing party, with the court or other tribunal hearing
such action to make such determinations.
ARTICLE 8
HAZARDOUS WASTE
Section 8.1 Hazardous Waste. Lessee warrants, represents and covenants to
Lessor that:
(a) Lessee's use of the Premises will at all times comply with and
conform to all laws, statutes, ordinances, rules and regulations of any
governmental, quasi-governmental or regulatory authority ("Laws") which
relate to the transportation, storage, placement, handling, treatment,
discharge, generation, production or disposal (collectively "Treatment") of
any waste, waste products, radioactive waste, poly-chlorinated biphenyls,
asbestos, hazardous materials of any kind, and any substance which is
regulated by any law, statute, ordinance, rule or regulation (collectively
"Waste"). Lessee further covenants that it will not engage in or permit any
party to engage in any Treatment of any Waste on or which affects the
Premises, unless said Treatment complies with and conforms to all Laws
relating to such Waste.
(b) Immediately upon receipt of any Notice, as hereinafter defined,
from any party, Lessee shall deliver to Lessor a true, correct and complete
copy of any written Notice or a true, correct, and complete report of any
nonwritten Notice. Additionally, Lessee shall notify Lessor immediately
after having knowledge of any Treatment of Waste, which does not comply
with or conform to all Laws relating to such Waste or any Spill, as
hereinafter defined, of Waste in or affecting the Premises. "Notice" shall
mean any note, notice, or report of any of the following:
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(i) any suit, proceeding, investigation, order, consent order,
injunction, writ, award, or action related to or affecting or
indicating the Treatment of any Waste in or affecting the Premises;
(ii) any spill, contamination, discharge, leakage, release or
escape of any Waste in or affecting the Premises, whether sudden or
gradual, accidental or anticipated, or of any other nature
(hereinafter "Spill");
(iii) any dispute relating to Lessee's or any other party's
Treatment of any Waste or any Spill in or affecting the Premises;
(iv) any claims by or against any insurer related to or arising
out of any Waste or Spill in or affecting the Premises;
(v) any recommendations or requirements of any governmental or
regulatory authority, insurer or board of underwriters relating to any
Treatment of Waste or a Spill in or affecting the Premises;
(vi) any legal requirement or deficiency related to the Treatment
of Waste or any Spill in or affecting the Premises; or
(vii) any tenant, licensee, concessionaire, manager, or other
party or entity occupying or using the premises or any part thereof
which has engaged in or engages in the Treatment of any Waste in or
affecting the Premises.
(c) In the event that (i) Lessee has caused, suffered or permitted,
directly or indirectly, any Spill in or affecting the Premises, or (ii) any
Spill of any Waste has occurred on the Premises during the term of this
Lease, then Lessee shall immediately take all of the following actions:
(i) notify Lessor, as provided herein;
(ii) take all steps necessary or desirable, in Lessor's
reasonable opinion, to clean up such Spill and any contamination
related to the Spill, all in accordance with the requirements, rules
and regulations of any state or federal environmental department or
agency having jurisdiction over the Spill;
(iii) fully restore the Premises to its condition prior to the
Spill;
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(iv) allow Lessor or its agents and any state or federal
environmental department or agency having jurisdiction thereof to
monitor and inspect all cleanup and restoration related to such Spill;
and
(v) at the written request of Lessor, post a bond or obtain a
letter of credit for the benefit of Lessor (drawn upon a company or
bank satisfactory to Lessor) or deposit an amount of money in an
escrow account under Lessor's name upon which bond, letter of credit
or escrow Lessee may draw, and which bond, letter of credit or escrow
shall be in an amount sufficient to meet all of Lessee's obligations
under this Article 8. Lessor shall have the unfettered right to draw
against the bond, letter of credit or escrow in its discretion in the
event that Lessee is unable or unwilling to meet its obligations under
this paragraph or, if Lessee fails to post a bond or obtain a letter
of credit or deposit such cash as is required herein, then Lessor, at
Lessee's cost and expense, may, but shall have no obligation, do so
for the benefit of Lessee and do those things which Lessee is required
to do under this Section 8.1(c)(ii), (iii) and (iv).
(d) Lessee hereby agrees that it will indemnify, defend, save and hold
harmless the Lessor and Lessor's members and the officers, directors and
employees of said members (collectively "Indemnified Parties") against and
from, and to reimburse the Indemnified Parties with respect to, any and all
damages, claims, liabilities, losses, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses, court costs,
administrative costs, costs of appeals and all clean up, administrative,
fines, penalties and enforcement costs of applicable governmental agencies)
which may be incurred by or asserted against the Indemnified Parties by
reason or arising out of: (i) the breach of any representation or
undertaking of Lessee under this Article 8, or (ii) the Treatment of any
Waste by Lessee or any tenant, licensee, concessionaire, manager, or other
party occupying or using the Premises, in or affecting the Premises, or
(iii) any Spill governed by the terms of this Article 8, or (iv) the
presence of any Waste upon the Premises, whether or not caused by Lessee.
(e) The obligations of Lessee under this Article 8 shall survive any
termination or satisfaction of this Lease.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Mortgages. This Lease is and shall remain subject and
subordinate to all mortgages trust affecting the Premises and the Lessee shall
promptly execute and deliver to the Lessor such documents as the Lessor may
request, showing the subordination of this Lease to such mortgage, and in
default of the Lessee's doing so, the Lessor shall be and hereby is authorized
and empowered to execute such documents in the name and as the act and deed of
the Lessee. This authority is coupled with an interest and is irrevocable.
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Section 9.2 Rules and Regulations. The Lessor has made, or from time to
time shall make, rules and regulations for the government of the Building. These
rules and regulations are, or shall be, a part of this Lease and binding upon
the Lessee to the same extent as if set out herein and copies thereof shall be
delivered to the Lessee.
Section 9.3 Brokers. The parties warrant that they have had no dealings
with any real estate broker or agent in connection with the negotiations of this
Lease that would give rise to a valid claim for commission.
Section 9.4 Estoppel Certificates. Lessee agrees to provide Lessor within
five (5) days of a written request therefor a certificate in form and substance
satisfactory to Lessor stating (i) that this Lease is in full force and effect;
(ii) the commencement date and term of this Lease; (iii) the date through which
rent has been paid; (iv) that there are no defaults existing under this Lease,
or, if any default exists, specifying such default and the actions required to
cure such default; and (v) such other matters as Lessor may reasonably require.
Section 9.5 Severability. If any term of this Lease is declared to be
illegal or unenforceable, the unaffected terms shall remain in full force and
effect.
Section 9.6 Successors and Assigns. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
Section 9.7 Parties. The words "Lessor" and "Lessee" as used herein shall
include the parties to the Lease, whether singular or plural, masculine or
feminine, or corporate, partnership, limited liability company or other entity
and their heirs, personal representatives, successors and assigns.
Section 9.8 Waivers. No covenant, term or condition hereof shall be deemed
waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term or condition shall
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other covenant, term or condition of this Lease. Acceptance by Lessor of
any performance by Lessee after the time the same shall have become due shall
not constitute a waiver by Lessor of the breach or default of any covenant, term
or condition of this Lease unless otherwise expressly agreed to by Lessor in
writing.
Section 9.9 Approval. This Lease is subject to the approval of the lender
or lenders which provide the financing on the property in which the Premises are
located and shall be modified or altered to embody any terms required by said
company or companies. All such modifications shall be reasonably approved by
Lessee.
Section 9.10 Memorandum of Lease. This Lease shall not be recorded. At the
request of either party, the Lessor and Lessee shall execute a short form or
memorandum of lease in
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Maricopa County, Arizona. Lessee shall pay the recording charges and shall be
responsible for payment of all lease stamps applicable to this Lease.
Section 9.11 Controlling Law. This Lease is entered into in Arizona and
shall be enforced and construed in accordance with the laws thereof.
Section 9.12 Captions. The captions of the paragraphs of this Lease and its
Exhibits are for convenience only and are not a part of this Lease, and do not
in any way limit or amplify the terms or provisions of this Lease, and shall not
be considered in the construction or interpretation of any provision hereof.
Section 9.13 Relationship. The parties agree that Lessor shall in no event
be construed or held, by virtue of this Lease, to be an agent, partner, member
or associate of the Lessee in the conduct of any of Lessee's business, nor shall
Lessor be liable for any debts incurred by Lessee in the conduct of Lessee's
business.
Section 9.14 Entire Agreement. This Lease, together with any later written
modifications or amendments thereto, shall constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede any prior or contemporaneous agreements or understandings, whether
written or oral, which the parties, their agents or representatives may have had
relating to the subject matter hereof. No modification, alteration or waiver of
any term, condition or covenant of this Lease shall be valid unless in writing,
dated and signed by the Lessor and the Lessee.
Section 9.15 Corporate Authority. Each individual executing this Lease on
behalf of Lessee limited liability company represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of said company in
accordance with a duly adopted resolution of the managers of said company or in
accordance with the operating agreement of said company, and that this Lease is
binding upon said company in accordance with its terms. Lessee shall deliver to
Lessor, within thirty (30) days after execution of this Lease, a certified copy
of a resolution of the managers of said company authorizing or ratifying the
execution of this Lease.
Section 9.16 Notices. Any written notice required or allowed by this Lease
to be given to either the Lessor or the Lessee shall be deemed given upon
receipt by certified or registered mail, postage prepaid, properly addressed to
the parties as follows:
Lessee: CCT, L.L.C.
c/o MedCath Incorporated
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President - Diagnostics Division
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Lessor: Tucson Heart Hospital
0000 X. Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
with a copy to: MedCath of Tucson, L.L.C.
c/o MedCath Incorporated
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President - Hospital Division
Section 9.17 Limitation of Lessor's Liability. Notwithstanding anything in
this Lease to the contrary, the Lessee agrees that it shall look solely to the
estate and property of the Lessor in the Building in which the Premises are
located for the collection of any judgment (or other judicial process) requiring
the payment of money by the Lessor for any default or breach by the Lessor of
any of its obligations under this Lease, subject, however, to the prior rights
of the holder of any mortgage encumbering the Building. No other assets of the
Lessor shall be subject to levy, execution or other judicial process for the
satisfaction of the Lessee's claim. This provision shall not be deemed,
construed or interpreted to be or constitute an agreement, express or implied
between the Lessor and the Lessee that the Lessor's interest in the Building
shall be subject to impressment of an equitable lien or otherwise.
Section 9.18 Bankruptcy. To the extent permitted by applicable law, Lessee
shall not, without the prior written consent of the holder of any mortgage or
owner, elect to treat the Lease as terminated under Section 365(h)(1) of the
Bankruptcy Code. Any such election made without the prior written consent of
such party shall be void.
Section 9.19 Notice to Lessor. Notwithstanding anything in this Lease to
the contrary, Lessee agrees that it will not terminate this Lease or withhold
any rentals due hereunder because of Lessor's default in the performance hereof
until Lessee has first given written notice to the Lessor and to the holder of
any mortgage and to the owner specifying the nature of such default by the
Lessor and allowing the Lessor, such mortgage holder and owner, or any of them,
thirty (30) days after date of such notice to cure such default or a reasonable
period of time in addition thereto if circumstances are such that said default
cannot reasonably be cured within said thirty (30) day period and the Lessor,
such mortgage holder, or the owner promptly takes action to cure such default
and pursues such action with due diligence.
12
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed under seal, all as of the day and year first above written.
LESSOR:
MEDCATH OF TUCSON, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President, Tucson Heart Hospital
LESSEE:
CCT, L.L.C.
By: Southern Arizona Heart, Inc.
By: /s/ R. Xxxxxxx Xxxxx, Jr.
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Name: R. Xxxxxxx Xxxxx, Jr.
-------------------------------------
Title: Assistant Secretary
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