Exhibit 10.5


 


LEASE AGREEMENT

BETWEEN

J.W. GIBSON CONSTRUCTION COMPANY

AND

TMA/EBERLINE

601-B SCARBORO ROAD

OAK RIDGE, TN 37830


 


1.  PARTIES


 


THIS INDENTURE OF
LEASE, made and entered into this the 24th day of October, 2000, by and between
J.W. GIBSON CONSTRUCTION COMPANY, of Oak Ridge, Anderson County, Tennessee,
hereinafter called “Lessor”, and Eberline Analytical Corp., of Albuquerque,
Bernalillo County, New Mexico, hereinafter called “Lessee”.


 


2.  CONSIDERATION


 


That each of the
aforesaid parties hereto acknowledges the receipt of one dollar and other
valuable considerations paid by Lessee to Lessor, and that they and each of
them, in further consideration of the engagements and mutual covenants of the
other as herein stated agree as follows:


 


3.  PREMISES


 


A.            The Lessor has and does hereby
grant, demise and lease unto the said Lessee, those certain premises (the “Premises”) consisting of
approximately 10,000 square feet of administrative, laboratory and storage type
space within the entire building situated upon approximately 1.85 acres of land
being approximately 16.5% of Lessor’s parcel and being addressed as 601-A
Scarboro Road, Oak Ridge, TN. Demised premises is furthermore set out in the
attached “Exhibit A”.


 


B.            Lessee, its employees, guests, and invitees
shall have the right of common usage for egress to and egress from the
premises.


 


C.            During the duration of the lease,
Lessee may install, at Lessee’s own expense, any improvements desired or needed
by the Lessee, inside or outside of the respective buildings located on
premises subject to Lessor approval, which approval shall not be unreasonably
withheld.


 


D.            Upon the expiration of the lease
either at its normal termination, at the end of any extension, termination
because of default or early termination pursuant to Article 6, the Lessee
shall immediately quit the Premises. All improvements except trade fixtures
shall remain and the Lessee shall repair any material damage to Premises
excepting normal wear and tear, fire, explosion, extended coverage endorsement
perils as defined by the standard insurance company policy form and events
beyond the control of Lessee. Trade fixtures are defined as items of personal
property used by Lessee in its business operations and shall specifically
exclude partitions, heating and air-conditioning equipment, water fountains,
toilets, plumbing and electrical equipment and the like which although
installed by Lessee are nevertheless a usual fixture and/or appurtenance to the
building. If any structural damage is


 





















 


caused in removing
trade fixtures, Lessee shall promptly repair such damage. If applicable, Lessee
specifically promises to remove radioactive and/or contaminated materials from
the Premises at the expiration of the lease to the extent necessary to have the
premises declared acceptable for unrestricted use as defined by the State of
Tennessee Department of Health and Environment, Division of Radiological
Health.


 


E.             Notice is hereby given the Lessor
shall not, under any circumstances; be liable to pay for any work, labor or
services rendered or materials furnished to or for the account of Lessee or
anyone holding the Premises or any part thereof by, through or under Lessee
upon or in connection with the Premises, and that no mechanics’ or other lien
for work, labor or services rendered or material furnished to or for the
account of Lessee or anyone holding the Premises or any part thereof by,
through or under Lessee, shall under any circumstances, attach to or affect the
Premises or any part thereof or the interest of Lessor therein. All such work,
labor, services or material shall be rendered or furnished at the expense of
Lessee, and Lessee shall be solely and wholly responsible therefor and shall
hold Lessor and the Premises harmless against the same.


 


F.             Lessee shall not suffer or permit
any liens to stand against the Premises or any part thereof, or the interest of
Lessor therein, by reason of any work, labor, services or material done for or
supplied to, or claimed to have been done for or supplied to, Lessee or anyone
holding the premises, or any part thereof, through or under Lessee. If Lessee
shall fail to discharge any such liens within sixty (60) days after demand from
Lessor, then in addition to any other right or remedy of Lessor, Lessor may,
but shall not be obligated to, discharge the same in any manner permitted by
law.


 


Any amount paid or
deposited by Lessor for such purpose and all legal and other expenses of
Lessor, including attorney fees incurred in procuring the discharge of such
lien, with all necessary disbursements in connection therewith, together with
interest at the prime rate of interest charged by Bank of Boston, plus 2 % per
annum (the “Default Rate”) from the date of payment of deposit shall become due
and payable forthwith by Lessee to Lessor.


 


4.  PURPOSE


 


The demised
Premises are leased by Lessor to Lessee for the purpose of routine office,
administrative, and analytical type uses and any use deemed appropriate to the
operation of Lessee’s business. Any such uses shall comply fully with any
current zoning regulations or any amendments thereof.


 


5.  TERM


 


A.            The initial term of this lease shall
be for a term of 5 consecutive years, beginning October 1, 2000, unless
sooner terminated as provided for herein.


 


B.            Lessee shall have the right and
option to extend said lease term for a period of an additional 5 year term at a
mutually agreeable rental rate, as determined not later than 120 days prior to
lease expiration by providing Lessor with written notice of intent to do same,
such notice to be provided to Lessor at the address where basic rents are paid
not less than ninety (90) days and not more that one hundred eighty (180) days
before the expiration of the term of this lease.


 


C.            Lessor agrees to keep Lessee in
peaceable, uninterrupted possession of Premises so long as Lessee complies with
and performs all of the terms, covenants and conditions of this Lease
Agreement.


 


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6.  RIGHT TO TERMINATE NOT EXCLUSIVE


 


The right of the
Lessor to terminate this Lease Agreement as herein set forth is in addition to
and not in exhaustion of such other rights that the Lessor has or causes of
action that may accrue to the Lessor because of Lessee’s failure to fulfill,
perform or observe the obligations, agreements, or covenants of this Lease
Agreement, and the exercise or pursuit by the Lessor of any of the rights or
causes of action accruing hereunder shall not be in exhaustion of such other
rights or causes of action that the Lessor might otherwise have.


 


7.  RENTAL


 


A.            Lessee shall and hereby agrees to
pay to Lessor at Lessor’s office or such place as Lessor may from time to time,
designate in writing, an annual base rental of $84,996 Dollars. The rent shall
be in equal monthly installments, each installment being 1/12th of the annual
base rental. The monthly rate shall be $7.083 Dollars.


 


B.            In addition to the base rental,
Lessee shall pay Lessor the direct cost of all real property taxes net of any
abatement, real property insurance, and other real property assessments net of
any abatement prorated in accordance with the effective fractional space
defined in Article 3. Lessor shall submit to Lessee paid receipts or
similar documentation of these costs prior to December 31st of each year
of this lease term and Lessee agrees to reimburse Lessor within 30 days of the
receipt of the billing. Expenses for the first and last year of the lease shall
be apportioned between Lessor and Lessee based on actual period of occupation.


 


The term “Real
Estate Taxes”
shall in no event be deemed to include any income, excess profits, excise,
franchise, estate, succession, inheritance, gift, mortgage lien, documentary
stamp or transfer taxes. If Lessor shall obtain any abatement, refund or rebate
in Real Estate Taxes theretofore paid by Lessee under this Lease, Lessor shall
promptly forward to Lessee Lessee’s Pro Rata Share thereof, less Lessee’s Pro
Rata Share of the cost obtaining the same. Lessor covenants and agrees that it
shall timely and fully pay to the applicable taxing authority all Real Estate
Taxes levied against the Property. Lessee shall not, in any event be liable for
any interest or penalty charges payable by Lessor with respect to the Real
Estate Taxes. Notwithstanding anything to the contrary contained in this Lease,
in the event that Lessee is obligated to pay any portion of any betterment or
special assessment Lessee’s payments shall be calculated as if such assignment were
amortized on a straight-line basis consistent with generally accepted
accounting principles consistently applied (“GAAP”), such that Lessee shall pay
a total amount equal to Lessee’s Pro Rata Share of such assessment multiplied by a
fraction, the numerator of which is the number of years remaining in the Tern
and the denominator of which is the greater of (a) the number of years in
the entire Tern or (b) the number of years for amortization indicated by
GAAP.


 


C.            It is expressly understood and
agreed that no act, practice or custom on the part of Lessor with respect to
giving notice to Lessee of the time that monthly rental payments are due shall
ever be construed as an obligation on the part of Lessor to give such notice to
Lessee.


 


D.            The burden of proof of payment of
the rental or any other sum due Lessor hereunder shall be on the Lessee.


 


E.             The first payment of rent shall be
due on the first day of the month following the month that the obligations
expressed herein become effective, and subsequent payments due on the like day
of subsequent months.


 


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8.  ASSIGNMENT AND SUBLETTING


 


Lessee covenants
and agrees not to assign this Lease Agreement or sublet the demised Premises or
any part of same, or in any other manner transfer the lease agreement,
leasehold or demised Premises, without the written consent of the Lessor, which
consent shall not be unreasonably withheld.


 


Notwithstanding
anything to the contrary contained in this Lease, Lessee shall have the right
to make, without Lessor’s consent, any assignment of this Lease or subletting
of all or any portion of the Premises to (a) a parent, subsidiary, or
division of Lessee, (b) any entity with which or into which Lessee may
consolidate or merge, or ( c ) any entity acquiring all or substantially all of
the assets of Lessee. In the event of any such assignment, Lessee shall
promptly and within 10 days give notice to Lessor of any such assignment.


 


In the event Lessor
consents to a subletting or assignment, Lessee shall, nevertheless, remain
liable for the payment to Lessor of all slims due Lessor hereunder, and remain
responsible for compliance with all of the terms and conditions of this Lease
Agreement. Any consent given by Lessor to a subletting or an assignment shall
not be deemed a consent to a subsequent subletting or assignment.


 


9.  LAWFUL AND MORAL USE


 


Lessee covenants
that the demised Premises shall, during the term of this Lease Agreement, be
used only and exclusively for lawful and moral purposes, and that no part of
the demised Premises shall be used by Lessee or any persons holding by, through
or under Lessee in any manner whatsoever for any purpose(s) which violate the
laws of the United States, the State of Tennessee, the County of Anderson, the
ordinance of the City of Oak Ridge, or the laws of any other applicable governmental
authority; and the Lessee shall save and hold Lessor harmless for all loss,
cost, expenses and damages incurred by Lessor or which Lessor should become
liable for an account of any such violation.


 


10.  INTERPRETATION AND CONSTRUCTION


 


This lease shall be
interpreted under the laws of the State of Tennessee.


 


11.  ENTIRE AGREEMENT


 


This lease contains
all the agreements and conditions made between the parties hereto, and no
representations or statements claimed to have been made and not herein contained
shall vary or modify this contract in any way and this lease cannot be modified
except as the parties agree in writing.


 


12.  CONDEMNATION


 


If the whole or
substantially the whole of the Premises shall be lawfully condemned or taken in
any manner for any public or quasi public use or purpose, this tease shall
terminate as of the date of the taking. If less than the whole or substantially
the whole Premises are taken and it is still feasible for Lessee to operate its
business, the base rental shall be diminished by the amount representing the
part of said rent properly applicable to the portion of the Premises which may
be so taken and the Lessor shall at his expense proceed with reasonable
diligence to repair, alter and restore the remaining part of the Premises to
substantially its former condition to the extent that the same may be feasible.
The Lessor shall be entitled to receive the award in any condemnation
proceeding, including any award for the value of any unexpired term of this
lease and Lessee shall have no claim against Lessor or against the proceeds of


 


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the condemnation.
Nothing contained herein shall affect Lessee’s right to a separate award for it’s
trade fixtures and moving expenses.


 


13.  NUISANCES


 


Lessee covenants
not to create or allow any nuisance to exist in, from, on or about the demised
Premises, and Lessee covenants to immediately at his expense abate any such
nuisance that may arise when requested by Lessor to do so.


 


14.  SUBORDINATION


 


This lease shall be
subordinate to any first mortgage and extensions thereto, now or hereafter
placed upon the land upon which the Premises are located and in the event of
foreclosure of such first mortgage, the exercise of a power of sale thereunder,
or deed in lieu of foreclosure, Lessee shall attorn to and recognize such
purchaser, foreclosure, sale or other transfer as the Lessor; provided that in
each case such shall not disturb Lessee’s right to possession or its other
rights hereunder so long as Lessee complies with the terms of this lease.


 


15.  INSURANCE


 


A.            Lessee covenants and agrees that,
during the term of this lease, it will carry, at its expense, property
insurance covering against loss or damage of Lessee’s improvements on the
Premises and such insurance shall be in the kind and amounts customarily
maintained by Lessee for such property.


 


B.            Lessee covenants and agrees to
carry, during the term of the lease, at Lessee’s expense:


 


1.             Workers Compensation Insurance on
Lessee’s employees; and


 


2.             Public liability and property
damage insurance coverage insuring Lessee with minimum coverage limits for
public liability insurance of $2,000,000 for one person in respect to one
accident and for more than one person in respect to any one accident, and for
property damage insurance a limit of $2,000,000 each accident. Lessor will be
included as an additional insured but only as regards to liability arising out
of the fault or negligence of Lessee in its use or occupancy of the Premises.


 


C.            Lessee covenants and agrees not to
do or permit anything to be done or anything to remain on the Premises, not to
permit any business, trade, or occupation to be carried on in the Premises,
which causes or may cause an increase or additional premium for the fire and extended
coverage insurance on the Premises without the written consent of Lessor, and
if Lessee’s actions do cause an increase in the premium, Lessee shall pay such
additional premiums.


 


Lessee agrees to
obtain, at its expense, adequate insurance related to the nature of the
business. Certificates of nuclear liability insurance will be provided upon
request.


 


D.            Lessee agrees to deliver to Lessor
on the inception date and on renewal date of each such policy of insurance that
Lessee is required to carry by the terms of this Lease Agreement the usual
certificate issued by the insurance carriers certifying that such insurance is
in full force and that all such policies shall not be canceled without ten (10) days
written notice to Lessor.


 


E.             If the Premises shall be so damaged
or destroyed by fire or other causes within the insurance coverage of Lessor’s
standard fire and extended coverage insurance policy and Lessor cannot


 


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repair or rebuild
same within ninety (90) days from the date of such damage or destruction, this
lease shall terminate and the Lessee shall be allowed an abatement of all rent
from the date of such damage or destruction. If the Premises shall be so
damaged or destroyed by fire or other causes within the insurance coverage of
Lessor’s standard fire and extended insurance coverage policy that it can be
repaired within ninety (90) days of the date of such damage or destruction,
then this lease shall not terminate and the Premises shall be repaired by the
Lessor, at its own expense, and the rent shall abate until such repair or
rebuilding is completed and possession of the Premises or so much thereof as
shall have become untenable is returned to the Lessee; provided that subject to
Force Majeure, if the reparation and rebuilding is not so completed within said
Ninety (90) day period, Lessee may terminate this lease by notice given within
one hundred twenty (120) days of such damage or destruction.


 


F.             If the Premises shall be damaged or
destroyed by causes not within the coverage of the Lessor’s above-mentioned
fire and extended coverage insurance and not arising out of the Lessee’s use
and occupancy, then rent will abate and if Lessor does not within thirty (30 )
days after such damage or destruction commence to repair or rebuild the demised
Premises, either party may terminate this Lease Agreement by notice to the
other of said termination. If the Lessor repairs or rebuilds the demised
Premises, this Lease Agreement shall not so terminate, provided Lessor
diligently pursues and completes same within ninety (90) days form the
commencement of repair or rebuilding subject to delays beyond Lessor’s
reasonable control. Until rebuilding or repairs are completed the rent shall be
abated.


 


G.            In the event of repair or
rebuilding, the terms of this Lease Agreement shall be extended for a period
equal to such period of rent abatement.


 


H.            Lessee shall in case of any damage
or destruction not otherwise known to Lessor, give immediate notice thereof to
the Lessor. Lessor shall within thirty (30) days after such damage or
destruction give written notice to Lessee whether Lessor can or will repair and
restore within the time period as herein provided. Failure to give such notice
shall be deemed notice that Lessor cannot or will not repair and restore.


 


I.              Lessor agrees to maintain fire and
extended coverage insurance at the full replacement cost of the building.
Lessor agrees to deliver to Lessee on this inception date and on renewal date
of each such policy of insurance that Lessor is required to carry by the terms
of this Lease Agreement the usual certificate issued by the insurance carriers
certifying that such insurance is in full force and that all such policies
shall not be canceled without ten (10) days written notice to Lessee.


 


16.  DAMAGES. ACCIDENTS. ETC.


 


Notwithstanding
anything to the contrary contained in this Lease, Lessee shall indemnify and
hold harmless Lessor from and against any and all damages, liabilities,
actions, causes of action, suits, claims, demands, losses, costs and expenses (
including without limitation reasonable attorneys’ fees and disbursements and
court costs ) to the extent arising from or in connection with the negligence
or willful misconduct of Lessee, its agents, employees, representatives or
contractors.


 


Notwithstanding
anything to the contrary contained in this Lease, Lessor shall indemnify and
hold harmless Lessee, its parent, subsidiaries and affiliates, and their
respective officers, directors, shareholders and employees, from and against
any and all damages, liabilities, actions, causes of action, suites, claims
demands, losses, costs and expenses (including without limitation reasonable
attorneys’ fees and disbursements and court costs ) to the extent arising from
or in connection with the negligence or willful misconduct of Lessor, its
agents, employees, representatives or contractors.


 


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The party seeking
indemnification under this Section (the ‘Indemnified Party”) shall provide
prompt written notice of any third party claim to the party from whom
indemnification is sought (the “Indemnifying Party”). The Indemnifying Party
shall then have ten (10) days to elect, by written notice to the
Indemnified Party, to assume, at the Indemnifying Party’s expense, exclusive
control of the defense of such claim. The Indemnified Party agrees to cooperate
reasonably with the Indemnifying Party in connection with the performance of
the Indemnifying Party’s obligations under this Section.


 


Notwithstanding
anything to the contrary contained in this Lease, in no event shall either
party be liable to the other for any indirect, special, consequential or
incidental damages (including without limitation damages for loss of use of
facilities or equipment, loss of goodwill or loss of revenue other than the
rent, additional rent and other charges payable by Lessee under, this Lease)
regardless of whether such party has been informed of the possibility of such
damages or is negligent.


 


The provisions of
this Section shall survive the expiration or earlier termination of this
Lease.


 


17.  INSOLVENCY, ETC. OF LESSEE


 


In the event of
insolvency or bankruptcy of the Lessee, or the filing of any petition under any
provision of the Bankruptcy Act or State insolvency laws against Lessee,
whether voluntarily or involuntarily, or in the event of a partial or general
assignment by Lessee for the benefit of Lessee’s creditors, or in the event
Lessee files a petition for an arrangement or composition under the provisions
of the Bankruptcy Act, Lessor shall have the right and privilege to immediately
terminate this Lease Agreement and declare the then remaining unpaid balance of
the rental due for the remainder of the term, as if same were not terminated,
immediately due and payable. Lessor shall have the right with or without legal
process to immediately reenter into possession of the Premises.


 


Without limiting
the preceding paragraphs, no interest of Lessee in this lease shall be
assignable by operation of law. Each of the following acts shall be considered
an involuntary assignment:


 


A.            If Lessee is adjudicated bankrupt or
insolvent, makes an assignment for the benefit of creditors, or institutes a
proceeding under the Bankruptcy Act in which Lessee is the bankrupt; and


 


B.            If a writ of attachment or execution
is levied on this lease and such attachment is not removed within forty-five
(45) days of such levy; and


 


C.            If, in any proceeding or action to
which Lessee is a party, a receiver is appointed with authority to take
possession of the Premises and the appointment of such receiver is not vacated
within forty-five (45) days after such appointment.


 


An involuntary
assignment shall constitute a default by Lessee and Lessor shall have the right
to terminate this lease, in which case the lease shall not be treated as an
asset of Lessee.


 


18.  COVENANT TO SURRENDER


 


Upon the expiration
or termination of this lease. Lessee shall quit and surrender the Premises to
Lessor in good condition and repair, normal wear and tear, acts of God, the
elements and casualty damage excepted.


 


19.  RIGHT OF ENTRY: INSPECTION AND SHOWING


 


With reasonable
notice to Lessee, Lessor or Lessor’s agent shall have the right to enter the
Premises during Lessee’s normal business hours to examine the same and to show
them to prospective mortgagees or purchasers of the Premises during the term
thereof, and during the last four (4) months of the term to show them to
prospective lessees. With reasonable notice to Lessee, Lessor or Lessor’s agent


 


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may also enter the
Premises for the purpose of inspecting for damages or for making any repairs
required to be made by it under the terms of this lease, and also to make any
repairs required to be made by Lessee under this lease and which Lessee has not
made or refuses to make. With reasonable notice to Lessee and when accompanied
by Lessor or Lessor’s agent, any mortgagee of the Premises shall have the right
to inspect the Premises during Lessee’s normal business hours. Any such entry
may be made without Lessor or Lessor’s agents being deemed guilty of trespass
and without the same constituting any eviction of Lessee, in whole or in part.
Nothing herein contained shall be deemed or construed to impose on Lessor any
obligation, responsibility or liability whatsoever, for the care, supervision
or repair of the Premises or any part thereof other than as herein provided.
Lessor or Lessor’s agents shall also be allowed to take all material and
necessary tools and equipment into and upon the Premises that may be required
for the aforesaid repairs and the rent reserved shall in no way abate while any
such repairs are being made.


 


19.  DEFAULT


 


A.            All covenants and agreements herein
made and obligations assumed are to be construed also as conditions and are
upon the express condition that if Lessee shall fail to pay when due any one of
the aforesaid installments of rent or any other monetary obligations hereunder,
or if Lessee shall fail or refuse to perform or observe any of the covenants,
agreements or obligations herein made or assigned by said Lessee, and if such
default is continued for ten (10) days (in the case of rent or other
monetary obligations) or sixty (60) days (in the case of other covenants,
agreements or obligations herein made or assumed by Lessee) after Lessee’s
receipt of written notice from Lessor specifying the respects in which Lessee
is in default hereof, then and thenceforth so long as such default is not
cured, in any of said events, (i) this Lease Agreement may be terminated
at the option of the Lessor, and said Lessor may immediately at or anytime
thereafter,(ii) re-enter into possession of the Premises, or any part
thereof in the name of the whole, with or without resort to legal process from
any court, and (iii) to declare the then remaining unpaid balance of the
total rental due for the remainder of the term, as if the same were not so
terminated, immediately due and payable.


 


B.            If Lessee is dispossessed form the
Premises and this lease is terminated by Lessor under the provisions of
paragraph A of this article 20, Lessor may, at its option, relet same for
such period or period as Lessor deems advisable (whether for the entire residue
of the term or for a shorter or longer period) and upon the best rent and terms
that Lessor, by the exercise of reasonable diligence, is able to obtain.
Whether or  not
the Premises are relet, Lessee shall remain liable hereunder, until the time
originally fixed for expiration of the term hereof, for the rent reserved hereunder
less the net avails of any reletting, if any, after deducting therefrom all
expenses incurred by Lessor of obtaining possession (including reasonable
attorney’s fees), reletting, collection and necessary repairs and alterations;
and the same shall be due and payable by Lessee on the first day of each month
from and after the first day of each of said months from and after such date,
Lessee will, upon receiving a statement of the net avails of releasing, if any,
pay to the Lessor the amount of deficiency than existing. Notwithstanding the
foregoing, Lessor agrees to use commercially reasonable efforts to relet the
premises and mitigate its damages.


 


C.            Any item, other than rent, which
Lessee is obligated to pay Lessor hereunder, shall, at the option of Lessor, be
treated as additional rent due hereunder, and Lessor, in addition to any other
rights or remedy Lessor may have shall have the same right and remedies for
non-payment thereof as for non-payment of rent.


 


D.            The specific remedies to which Lessor
or Lessee may resort under the terms of this lease are cumulative and not
intended to be exclusive of any other remedies or means or redress to which
Lessor may be lawfully entitled in case of any breach or threatened breach by
Lessee of any provision of this lease.


 


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E.             In addition to any and all other
rights and remedies to which the parties may be entitled, the parties shall be
entitled to the restraint by injunction of any violation or attempted or threatened
violation of any of the terms, covenants, conditions, provisions or agreements
of this lease.


 


F.             In the event of any action at law
or in equity between Lessor and Lessee to enforce any of the provisions and/or
rights hereunder, the unsuccessful party of this litigation covenants and
agrees to pay to the successful party all costs and expenses, including
reasonable attorney’s fees incurred therein by such successful party, which
shall be included in and as part of such judgment. Should either Lessor or
Lessee by reason of this lease and without fault on its part, be made a party
to any litigation instituted by or against the other, then said party so named
as a party to said litigation shall be entitled to receive from the other party
all costs, expenses and reasonable attorney’s fees incurred in or. in
connection with such litigation.


 


G.            Lessee hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Lessee’s being evicted or dispossessed for any cause, or in the
event of Lessor’s obtaining possession of demised Premises by reason of the
violation by Lessee of any of the covenants and conditions of this lease or
otherwise.


 


21.  REPAIRS AND WARRANTY


 


A.            Lessee will be responsible for repairs
to the cement floor due to cracking, splitting, or disintegration due to
overloading in excess of load design. Any repairs to the roof or exterior walls
arising out of Lessee’s negligent operation will be the responsibility of the
Lessee. Lessee agrees to maintain the Premises in good and neat appearance and
in working order. Lessor agrees to make any repairs arising out of Lessor’s
negligence or breach of its obligations under this lease. Notwithstanding
anything to the contrary contained herein, in no event shall Lessee be
obligated to make or pay for any repairs or replacements which would constitute
items of expense properly chargeable to “capital account” under • GAAP and which are required
as the result of the negligence or willful misconduct of Lessor, its agents,
employees, representatives or contractors, or the failure of Lessor to perform
any of its obligations under this Lease, all in which repairs and replacements
shall be made by Lessor at Lessor’s sole cost and expense. Lessor shall maintain,
at its sole cost and expense, the foundation, floor slab, exterior walls, steel
frame, structural portions, roof, gutters, downspouts, and exterior doors of
the Building, as well as all utility lines, pipes and plumbing serving but
located outside of the Building (including without limitation all underground
utility lines, pipes and plumbing), in good, clean and safe repair, order and
condition. Lessor shall make all repairs and replacements without, to the
extent practicable, interfering with the conduct of Lessee’s business. If
during such repairs or replacements the Premises are wholly or partially
unsuitable for their use as provided in this Lease, there shall be an equitable
abatement of Fixed Rent, Additional Rent and all other charges payable by Lessee
hereunder until such time as such repairs and replacements have been completed.


 


B.            Lessor covenants and agrees to
maintain and keep in good repair the roof, roof structure, gutter, down-spouts,
plumbing, exterior walls and foundation walls and floors unless the repairs are
occurred by the negligent acts of the Lessee. Lessee agrees to restrict access
to any roof area being Lessor’s responsibility to maintain, with any such
access being granted only to a licensed roofing contractor. Violation of this restriction
by Lessee shall immediately upon occurrence relieve Lessor of any stated
maintenance liability.


 


C.            The Lessor shall provide supplier’s
and manufacturer’s warranties that all work performed in the design and
construction of the premises is free form any defect in equipment, material,


 


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design furnished,
or workmanship performed by any of Lessor’s subcontractors or suppliers, as may
still be applicable and appropriate.


 


D.            With respect to all warranties,
expressed or implied, from Lessor’s subcontractors, manufacturers or suppliers
for work performed and materials furnished for the Premises, the Lessor shall:


 


1.             Obtain all warranties that would be
given in normal commercial practice;


 


2.             Require all warranties to be
executed, in writing for the benefit of the Lessee, if requested by the Lessee,
as may be applicable;


 


3.             Enforce all warranties for the
benefit of the Lessee, if requested by the Lessee.


 


22.  UTILITIES


 


All electricity,
heating, air conditioning, water sewage disposal and waste disposal shall be
furnished by Lessee. Lessee shall pay the cost of water, sewer, electric
current, heating, ventilating and air conditioning used in or supplied to the
Premises at the actual rates charged by the utility company. governmental
entity or individual or company providing such services. Lessor shall provide
separate utility meters for the respective facilities as deemed appropriate.


 


23.  COVENANTS RUN TO HEIRS, SUCCESSORS AND
ASSIGNS


 


It is hereby covenanted
and agreed between the parties hereto that all covenants, conditions,
agreements and undertakings contained in this Lease Agreement shall inure and
extend to and be binding on the heirs, administrators, executors, legal
representatives, successors and assigns of the respective parties hereto as if
they were in every case named and expressed. However, this paragraph is not
intended, nor shall be construed, to permit assignment or transfer of this
lease, whether by contract or operation of law, without compliance with Article 8
of this Lease Agreement.


 


The term “Lessor” and “Lessee” shall be construed
in the singular or plural number accordingly as they respectively represent one
or more than one person.


 


24.  NOTICES


 


All notices
required or provided for under this Lease Agreement shall be given in writing
by registered or certified (return receipt request) U.S. Mail, with the postage
prepaid thereon, and addressed to Lessee at:


 


Eberline Analytical Crop.


Attn: Mike McDougal, Manager


601-A Scarboro Road Oak Ridge, TN 37830


 


to Lessor at:


J.W. Gibson Construction Company


P.O. Box 7027


Oak Ridge, TN 37831-7027


 


with a copy to:


Allied Realty & Management


148 Ridgeway Center


Oak Ridge, TN 37830


 


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25.  TRANSFER OF LESSOR’S RIGHTS


 


Lessor shall have
the right to transfer and assign, in whole or in part, all and every feature of
its rights and obligations hereunder and in the building and property referred
to herein. Such transfers or assignments may be made either to a corporation,
partnership, trust company, group of individuals, and howsoever made, are to be
in all things respected and recognized by Lessee and in the event of a transfer
following commencement of the term hereof upon assumption of Lessor obligations
hereunder by said transferees or assignee, the Lessor, immediately prior to
said transfer or assignment shall be relieved of all further liabilities and
obligations hereunder; provided, however, that Lessee’s rights under the lease
shall remain in effect so long as Lessee is not in default.


 


26.  PROPERTY TAXES


 


Lessee shall be
liable for all personal property taxes which shall be its sole responsibility.
Lessor shall be liable for real property taxes, but shall be reimbursed by
Lessee pursuant to Article 7, Paragraph B herein.


 


27.  RIGHT TO PURCHASE PROPERTY


 


Lessee has the
first right of refusal to purchase the entire property and buildings, as
defined by Exhibit A, or a portion thereof, if divisible. Lessor will
provide Lessee with thirty (30) days written notice of intent to sell and
Lessee has that time to exercise right of first refusal. The purchase price
shall be negotiated between Lessor and Lessee at the time of purchase.


 


 


	
  J. W. Gibson Construction Company

  	
   

  	
  Thermo Nutech

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J.W. Gibson

  	
   

  	
  By:

  	
  /s/ Jeffery Stein

  
	
   

  	
  J.W. Gibson

  	
   

  	
  Jeffery Stein

  
	
   

  	
   

  	
   

  
	
  Title: President

  	
  Title: Vice President

  
	
   

  	
   

  
	
  Date: 10/24/00

  	
  Date: 10/6/00

  
					



 


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