FLAGSHIP BUSINESS ACCELERATOR TENANT LEASE
Exhibit 10.1
 |
 |
FLAGSHIP
BUSINESS ACCELERATOR TENANT LEASE
_______________________
THIS
LEASE, is made and entered into this 1st
Day
of
July, 2007, by and between FLAGSHIP ENTERPRISE CENTER, INC., an Indiana
not-for-profit corporation (hereinafter called "Landlord"), and ALTAIR
Nanotechnologies, a Nevada Corporation (hereinafter called
"Tenant").
Witnesseth
That:
Article
I.
Leased
Premises.
Section
1.01. Lease
and Description of Premises,
Landlord, for and in consideration of the rent, covenants, agreements and
conditions stated herein, does hereby lease to Tenant and Tenant does hereby
lease from Landlord the following described premises (hereinafter referred
to as
the "Leased Premises") situated in the Flagship Business Accelerator Building
located at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Building") and including all that certain
space, which is on the second floor of the Flagship Enterprise Center Building
which is designated as Xxxxx # 000, Xxxxx # 000, xxx Xxxxx # 000 consisting
of
30,000 square feet of space as shown in Exhibit "A."
Section
1.02. First
Right of Refusal for Additional Space.
Tenant
has expressed interest in as much as 10,000 Square Feet of additional space
in
the building. Accordingly, Landlord agrees to give tenant a one-time first
right
of refusal with 30 days written notice. Tenant agrees that once refused in
writing by tenant this right shall expire.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
1 of
17
Section
1.03. Additional
Consideration to Tenant/Use of Equipment and Shared Services.
As
additional consideration of Tenant's payment of rent as herein below provided,
Landlord shall provide Tenant with the following equipment and/or
services:
(a) Parking.
Landlord
shall provide Tenant with access to parking facilities, which
shall be subject to availability and Landlord's parking facilities policies.
Handicapped parking is made available for those tenant/visitors with
a
handicap parking pass only, all others may be towed or ticketed.
Section
1.04. Examination
and Inspection of Leased Premises/Renovation Expenses.
Tenant
acknowledges that it has had the opportunity to examine and inspect and has
examined and inspected the Leased Premises. Tenant accepts the Leased Premises
in their current "as is" condition, subject to the responsibility of the
Landlord to effect repairs and maintenance as below provided.
As
per
the negotiations heretofore completed between the parties, Landlord, prior
to
the inception of this Lease, has renovated and improved the Leased Premises.
As
to such renovations and improvements, Landlord has paid or will pay the total
cost of such renovations and improvements.
Section
1.05. Additional Leasehold Improvements. Landlord agrees to provide the first
$
110,000 in additional leasehold improvements at no cost to Tenant. Such
improvements are at the sole discretion of and are subject to prior written
approval by Tenant.
Article
II.
Lease
Term
Section
2.01. Initial
Lease Term.
Unless
sooner terminated under the provisions hereof, the term of this Lease shall
be
for a period of five (5) years (the "Initial Term"), commencing on the
1St
day
of
July, 2007 (hereinafter referred to as the
"Commencement
Date") and ending on the 30th
Day of
June, 2012.
Section
2.02. Lease
Renewal.
This
Lease may be renewed for subsequent terms of one (1) year (each a "Renewal
Term") on such terms as are mutually agreed to by the parties. Provided,
however, the rent to be charged by Landlord during certain specified Renewal
Terms shall be no greater than as set forth in paragraph 3.02 below. The term
of
this Lease, including the Initial Term and any Renewal Term(s), is referred
to
in this Lease as the "Term."
Section
2.03. Provisions
for Negotiation_ of Renewal.
The
parties shall commence negotiations for a Renewal Term no sooner than ninety
(90) days before the expiration of the existing Term and such negotiations
shall
be completed no later than thirty (30) days before the expiration of the
existing Term.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
2 of
17
Section
2.04. Holding
Over.
In the
event Tenant remains in possession of the Leased Premises after the expiration
of the Initial Term and/or expiration of a renewal term, without the execution
of a lease extension agreement or exercise of a renewal option, Tenant shall
be
deemed to be occupying the Leased Premises as a tenant from month to month
and
all terms of the Lease shall continue unabated, excepting for the length of
term
as herein specified. Such month to month tenancy may at any time be terminated
by either party upon thirty (30) days written notice given to the other
party.
Article
III.
Rental
Payments.
Section
3.01. Rent.
Based
upon negotiations between the parties, Tenant shall pay, as rent, to Landlord,
a
sum equal to the stipulated fair market rent of the Leased Premises as set
forth
in Exhibit "B" ("Rent"). Such Rent shall be increased from each successive
annual anniversary date of the lease as shown in Exhibit °B".
Section
3.02. Rent
During Renewal Terms.
The
rental payments for any Renewal Term shall be in the monetary sum mutually
agreed to by the parties prior to the commencement of the Renewal
Term.
Section
3.03. Tenant's
Payment of Utilities.
Tenant
shall pay all usage and other monthly charges for all utility services rendered
or furnished to or based upon or in connection with the Leased Premises,
including, but not limited to, electricity, gas, water/sewage, or other utility
or service.
Section
3.05. Payment
of Taxes on Real Estate and Personal Property.
Landlord
covenants and agrees to assume and pay all real estate taxes, if any, incurred
and/or assessed against the real estate and improvements located on the Leased
Premises. Tenant covenants and agrees to assume and pay all personal property
taxes incurred and/or assessed against the personal property owned by Tenant
located on the Leased Premises.
Section
3.06. Past
Due Payments.
In the
event any rental payment or other payment owing from Tenant to Landlord pursuant
to this Lease shall become overdue for a period in excess of ten (10) days,
a
late charge in the amount of five percent (5%) of such overdue payment shall
be
paid by Tenant to Landlord, which late charge shall be payable upon demand.
Said
late charge shall be in addition to and not in lieu of any other remedy Landlord
may have and any fee, charge, payment and advancements landlord may be entitled
to hereunder or by law. In the event any rental payment or other payment owing
from Tenant to Landlord pursuant to this Lease shall become overdue for a period
in excess of twenty-five (25) days, such unpaid amounts shall bear interest
from
the due date thereof to the date of payment at the rate of one and one-half
percent (1 ½ %)
per
month.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
3 of
17
Section
3.07. Place
of Payments.
All
payments required to be paid, and all statements required to be rendered by
Tenant to Landlord shall be delivered to Landlord at its address set forth
in
Section 15.01 hereof or to such other address as Landlord specifies to tenant
in
accordance with such Section.
Article
IV.
Use
and Occupancy.
Section
4.01. Use
of
Leased Premises.
The
Leased Premises in the office area shall be used solely as office or laboratory
research space. The Leased Premises in the manufacturing area shall be used
as
manufacturing, research or lab space. Tenant will have full access to and use
of
Tenant Space, and the right to use and access all common areas within the
Building on an "as available" basis, subject to the Flagship Enterprise Center's
Building Rules and Regulations, as amended or modified from time to time, which
are incorporated by reference into this Lease. Tenant hereby acknowledges
receipt of the current Building Rules and Regulations. Landlord shall provide
to
Tenant written notice of any amendments or modifications to the Building Rules
and Regulations, which shall be effective with respect to Tenant after such
notice has been given. Tenant will not have access to any other areas within
the
Building, including but not limited to the space of other tenants and Landlord's
executive offices.
Section
4.02. Prohibition
Against Waste and Unlawful Uses.
Tenant
shall not commit or allow any waste or damage to be committed on any portion
of
the Leased Premises. Tenant shall not occupy or use or permit any portion of
the
Leased Premises to be occupied or used for any business or purpose which is
unlawful, disreputable or deemed to be hazardous, or permit anything to be
done
which would in any way significantly increase the cost of insurance coverage
on
the Leased Premises or its contents.
Section
4.03. Prohibition
Against Use or Storage of Hazardous Materials.
Tenant
shall not maintain, store or use any other hazardous materials upon the Leased
Premises without Landlord's written consent. Hazardous materials shall mean
any
hazardous, toxic or radioactive substance, matter, material or waste which
is or
becomes regulated by any federal, state or local law, ordinance, order, rule,
regulations, code or other governmental restriction or requirement and includes,
without limitation, asbestos, petroleum products and the terms hazardous
substance and hazardous waste as defined in CERCLA and RCRA, as each may be
amended. If any hazardous materials are necessary for the carrying on of
tenant's business operations, notice of existence of such materials must be
given to Landlord, and Tenant shall retain such licenses as may be required
to
handle, transport and dispose of such materials in accordance with local, state
and federal rules, regulations and laws.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
4 of
17
Section
4.04. Environmental
Responsibility.
Tenant
must supply Landlord Material Safety Data Sheets for all chemicals used by
Tenant. Tenant must comply with the OSHA and EPA requirements. Noise levels
created by Tenant's machinery must not exceed a limit of 85 decibels or such
noise level required by the applicable zoning ordinance, whichever is lower.
Tenant shall defend and hold Landlord harmless from all fines, penalties and
costs relating to any violation or noncompliance with such laws and
regulations.
Section
4.05. Prohibition
Against Excessive Floor Loads.
Tenant
shall not overload the floors of the Tenant Space beyond their designed
weight-bearing capacity, Landlord reserves the right to direct the positioning
of all heavy equipment, furniture and fixtures that Tenant desires to place
in
the Tenant Space so as to distribute weight properly. Landlord may require
the
removal of any equipment, furniture or fixtures that exceeds appropriate weight
limits for the Tenant Space.
Section
4.06. Condition,
Alterations and Additions.
Tenant's
acceptance of the Leased Premises on the Commencement Date shall be as is,
where
is and without warranty of any kind as to zoning, condition, fitness for
Tenant's business purpose or otherwise. Tenant assumes sole responsibility
for
examining the Leased Premises prior to the Commencement Date to assure itself
of
the Leased Premises' compliance with this Lease and Tenant's business purpose.
Tenant
shall make no leasehold improvements, alterations or additions to any part
of
the Leased Premises without the prior written consent of Landlord.
All
such
improvements, alterations and additions, excepting only unattached and movable
trade fixtures, shall be the sole property of Landlord.
Section
4.07. Signage.
Tenant
may place a sign on the exterior of the south wall of the building. All signage,
whether installed inside the structure on the Leased Premises or on the exterior
thereof, shall be subject to the written approval of Landlord which will not
be
unreasonably withheld.
Article
V.
Maintenance
and Repairs.
Section
5.01. Maintenance.
Landlord, at Landlord's expense, shall keep the foundation, walls and other
structural parts, including the roof, of the building in reasonable order,
condition and repair; provided, however, Landlord shall not be responsible
for
making any repairs or replacements occasioned by any act or negligence of
Tenant, its employees, contractors, agents, invitees, licensees or
concessionaires. Tenant shall keep, maintain, replace and repair the Leased
Premises and every part thereof in good order, condition and repair, including,
but not limited to, interior and exterior electrical, mechanical and utility
equipment and systems; fixtures; and interior walls, floors and
ceilings.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
5 of
17
Section
5.02. Payment
of Cleaning & Janitorial Service Expenses.
Tenant
shall assume and pay all expenses for routine/customary cleaning and janitorial
services to keep the Leased Premises in a clean and orderly condition. Should
Tenant fail in this responsibility, Landlord reserves the right, but shall
not
be obligated, to cause the Leased Premises to be cleaned and charges therefore
would be assessed to Tenant. Tenant shall assume and pay all expenses for
routine/customary cleaning and janitorial services to keep the Common Areas
within the Building in a clean and orderly condition. Tenants are responsible
for picking up after themselves in the common areas of the
Building.
Section
5.03. Landlord's
Provision of Snow Removal and Lawn Care.
As
additional consideration for Tenant's payment of Monthly Rental Payments,
Landlord, during the Initial Term and any Renewal Term, shall provide snow
removal for Tenant's parking and walkways and shall further provide lawn care
and landscaping services to the area surrounding the Leased
Premises.
Section
5.04. Notice.
Tenant
shall give Landlord prompt written notice of the need for any maintenance,
replacement or repairs which Landlord is obligated to make under foregoing
Section 5.01 and of any material damage to the Leased Premises or any part
thereof.
Section
5.05. Access
to Leased Premises.
Landlord
and its agents may retain a pass key to the Leased Premises and shall have
the
right to enter the Leased Premises at any and all times to service and inspect
the Leased Premises. During the period beginning sixty (60) days prior to the
expiration of the Initial Term or any Renewal Term (unless Landlord has already
agreed to extend the Term of this Lease), Landlord's staff may enter the Leased
Premises to show the Leased Premises to prospective tenants.
Article
VI.
Insurance
and Indemnification.
Section
6.01. Public
Liability Insurance: Tenant.
Tenant,
at Tenant's expense, shall maintain in full force and effect throughout the
Lease Term a policy of general public liability insurance naming Landlord as
an
additional insured and covering any and all claims for injuries to or death
of
persons and damage to property occurring in or upon the Leased Premises, in
an
amount not less than One Million Dollars ($1,000,000.00) for injury to or death
of any one person; Two Million Dollars ($2,000,000.00) for injury to or death
of
more than one person in the same accident or occurrence; and Five Hundred
Thousand Dollars ($500,000.00) for damaged property arising out of any one
accident or occurrence.
Section
6.02. Insurance
on Tenant's Property.
All of
Tenant's fixtures, equipment, merchandise or other personal property shall
be
kept at Tenant's sole risk and expense, and Tenant, at Tenant's expense, shall
maintain in full force and effect throughout the Lease Term fire and extended
coverage insurance on its fixtures, equipment, merchandise and other personal
property in or upon the Leased Premises for its full insurable value on a
replacement cost basis, if obtainable, and if not obtainable, for the full
amount of the estimated cash value for such property.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
6 of
17
Section
6.03. Insurance
on Leased Premises.
Landlord
shall maintain in full force and effect throughout the Lease Term broad form
fire and extended coverage insurance on the Leased Premises and Landlord's
fixtures, equipment and personal property, in, on or about the Leased Premises,
for their full insurable value on a replacement cost basis, if obtainable,
and
if not obtainable, for the full amount of its actual cash value.
Section
6.04. Waiver
of Subrogation.
Each of
the parties hereto hereby waivers and releases any and all rights of recovery
which it might have against the other for any loss or damage, whether or not
caused by any alleged negligence of the other party, its agents, licensees
or
invitees, to the extent that such loss or damage is or would be
covered
by any insurance required to be maintained under this Lease. Each policy of
insurance required under this Lease shall contain an endorsement to such effect,
so long as such endorsement is available. Should either Landlord or Tenant
be
unable to procure such an endorsement, the other party shall be relieved of
carrying insurance with such an endorsement and the foregoing provisions for
waiver of right of recovery against the other (right of subrogation) shall
be of
no further force or effect.
Section
6.05. Tenant's
Indemnification.
Unless
caused or contributed to by the gross negligence or willful misconduct of
Landlord, its agents or employees, Tenant assumes all risks and responsibilities
for accidents, injuries or damages to person or property and agrees to indemnify
and hold Landlord harmless from any and all claims, liabilities, losses, costs
and expenses (including attorneys' fees) arising from or in connection with
its,
use or control of the Leased Premises and any improvements thereon during the
Lease Term or Tenant's breach of any term, covenant, condition or agreement
to
be observed by Tenant under this Lease. Tenant shall be liable to Landlord
for
any damages caused by gross negligence or willful misconduct to the Leased
Premises and for gross negligence or willful misconduct done by Tenant or any
person coming on the Leased Premises by the license or invitation of Tenant,
express or implied (except Landlord, its agents or employees).
Section
6.06. Tenant's
Waiver of Claims.
Landlord
shall not be liable for, and Tenant waives all claims against Landlord for,
any
injuries, damages (including, but not limited to, consequential damages) or
losses of or to person, property or otherwise, sustained by Tenant and not
covered by insurance, unless resulting from Landlord's gross negligence or
willful misconduct. All property of Tenant kept or stored in, upon or about
the
Leased Premises shall be so kept or stored at the sole risk of Tenant; and
Tenant shall hold Landlord harmless from any claims, costs or expenses,
including attorneys' fees, arising out of damage thereto, unless such claim
arises out of grossly negligent or willful misconduct on the part of Landlord,
its agents and employees.
Section
6.07. Certificates
of Insurance.
For each
type of insurance which Landlord or Tenant are required to maintain under this
Lease, each shall furnish the other an endorsed copy of such insurance policy
showing that each such type of insurance is in full force and effect and not
cancelable without thirty (30) days prior written notice to the other
party.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
7 of
17
Article
VII.
Eminent
Domain.
Section
7.01. Legal
Effect.
If the
whole or any part of the Leased Premises is taken for public or quasi-public
use
by a governmental or other authority having the power of eminent domain, or
shall be conveyed to any such authority in lieu of such taking, and if such
taking or conveyance shall cause the remaining part of the Leased Premises
to be
untenantable and inadequate for Tenant's Business, then Landlord or Tenant
may,
at their option, terminate this Lease as of the date Tenant is required to
surrender possession of the Leased Premises by giving the other party notice
of
such termination. If a part of the Leased Premises shall be taken or conveyed,
but the remaining part is tenantable and adequate for Tenant's Business (as
reasonably determined by Tenant, and with notice of such determination given
to
Landlord within fifteen (15) days of any such taking), then this Lease shall
be
terminated as to the part taken or conveyed as of the date Tenant surrenders
possession thereof; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed
tenantable; and the rent shall be reduced in proportion to the part of the
Leased Premises so taken or conveyed.
Section
7.02. Payment
of Award.
All
compensation awarded for such taking or conveyance shall be the sole property
of
Landlord, without any deduction therefrom for any present or future estate
of
Tenant, and Tenant hereby assigns to Landlord all its right, title and interest
in and to any such award; provided, however, Tenant shall have the right to
recover from such taking authority, but not from Landlord, such compensation
as
may be awarded to Tenant on account of moving and relocation expenses and
depreciation to and removal of Tenant's property.
Article
VIII.
Destruction
and Damage.
Section
8.01. Damage
by casualty.
In the
event of a fire or other casualty in the Leased Premises, Tenant shall give
prompt notice thereof to Landlord. If the Leased Premises shall be partially
destroyed by fire or other casualty so as to render the Leased Premises
partially or wholly untenantable, the Rent shall be abated on the basis of
leasable square footage remaining and occupied thereafter, until such time
as
the Leased Premises are made fully fit for use by Tenant; provided, however,
that if gross negligence or willful misconduct of Tenant, or its agents,
employees or invitees shall have contributed to the cause of such fire or other
casualty, the Rental shall not be abated during the period of restoration of
the
Leased Premises.
Section
8.02. Restoration;
Partial or Total Destruction of Building.
In the
event the Building shall be partially or totally destroyed by fire or other
casualty, the same shall be repaired as soon as is reasonably possible, at
the
expense of Landlord, unless Landlord shall elect to terminate this Lease as
hereinafter provided. If damage to the Leased Premises is to such extent that
the cost of restoration, as estimated by Landlord will exceed fifty percent
(50%) of the replacement value of the Leased Premises (including the building
standard improvements) or thirty percent (30%) of the
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
8 of
17
| (a) |
This
Lease shall
terminate on the twentieth (20th)
day following the giving of
said notice;
|
| (b) |
Tenant
shall surrender possession of the Leased Premises on or before such
termination date; and
|
| (c) |
The
rental provided hereunder shall be apportioned as of the date of
such
termination and any Rental paid for any period beyond said date shall
be
refunded to Tenant.
|
Unless
Landlord so elects to terminate this Lease, Landlord shall proceed with the
restoration of the Leased Premises and/or the Building as soon as reasonably
possible. If the damage to the Building as the result of any casualty is such
that the Leased Premises cannot be used by Tenant for Tenant's Business for
a
period of three (3) or more months, as estimated by Landlord, either Landlord
or
Tenant may cancel and terminate this Lease by giving notice of such termination
to the other party within thirty (30) days after the date of such casualty.
In
such event of termination, all Rental shall be apportioned as of the date of
such termination and any Rental paid for any period beyond said date shall
be
refunded to Tenant. In no event, however, shall Tenant have the right to cancel
or terminate this Lease if the gross misconduct or willful neglect of Tenant,
or
its agents, employees or invitees shall have contributed to the cause of such
casualty.
Article
IX.
Events
of Default and Remedies.
Section
9.01. Events
of Default.
The
occurrence of any one (1) or more of the following events shall be deemed to
be
an "Event of Default":
| (a) |
The
failure of Tenant to pay any installment of rent within thirty (30)
days
after its due date;
|
| (b) |
The
failure of Tenant to perform any other of its covenants under this
Lease
or to comply with the Building Rules and Regulations within thirty
(30)
days after
written notice or demand therefore is served upon Tenant by
Landlord;
|
| (c) |
The
making by Tenants of an assignment for the benefit of
creditors;
|
| (d) |
The
levying of a writ of execution or attachment on or against the Leased
Premises or Tenant's interest therein as the property of Tenant,
and the
same not being released or discharged within sixty (60) days
thereafter;
|
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
9 of
17
| (e) |
The
institution of proceedings in a court of competent jurisdiction for
the
reorganization, liquidation, voluntary or involuntary dissolution
of
Tenant, or for its adjudication as a bankrupt or insolvent, or for
the
appointment of a receiver of the property of Tenant, and said proceedings
are not dismissed within sixty (60) days after the institution of
said
proceedings; or
|
| (f) |
A
mechanic's lien or similar lien upon the Leased Premises or the building
is asserted of record in connection with work allegedly done in or
about
the Leased Premises at the request or instance of Tenant, and the
same is
not removed by Tenant, or adequate security for the satisfaction
thereof
deposited with Landlord, within forty-five (45) days from the date
any
such lien was filed in the office of the Recorder of Madison County,
Indiana.
|
Section
9.02 Remedies.
Upon the
occurrence of an Event of Default, Landlord shall have the option
to:
| (a) |
Re-enter
the Leased Premises with or without process of law, using such
means
as may be necessary to remove all persons and property
therefrom;
and/or
|
| (b) |
Exercise
any other right or remedy available to Landlord at law or in equity
in
addition to or as an alternative to any of the other rights and remedies
of
Landlord herein specified upon the occasion of any such Event of
Default.
|
In
the
event that subsequent to an Event of Default, landlord should relet the Leased
Premises or a portion thereof during the balance of the Term of this Lease,
the
proceeds of such reletting, after deduction of all reasonable costs incurred
by
Landlord in connection with repossession and reletting of the Leased Premises
(including without limitation, all legal fees, leasing commissions, remodeling
costs and similar expenses) shall be applied to satisfaction of Tenant's
obligations hereunder. Landlord shall have the right to file suit to recover
any
sums which have fallen due under this Lease from time to time on one (1) or
more
occasions without being obligated to wait until the expiration of the Term
of
this Lease. Alternatively, in the event Landlord should elect to terminate
this
Lease, Landlord shall be entitled to recover forthwith as damages from Tenant
a
sum of money equal to: (i) the cost of recovering possession of the Leased
Premises, (ii) the unpaid Rent owed at the time of such termination; (iii)
the
balance of the Rent for the remainder of the term; and (iv) any other sum of
money or damages owed by Tenant to Landlord, less the fair market rental value
of the Leased Premises for the remainder of the term of this Lease.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
10
of 17
Article
X.
Subordination.
Section
10.01. Subordination.
Upon
request by Landlord, this Lease shall become subordinate to the lien of a
mortgage given by Landlord, if such mortgage provides that Tenant's rights
under
this Lease and possession of the Leased Premises shall not be disturbed as
long
as it performs its duties hereunder. Tenant shall enter into any confirming
subordination and non-disturbance agreement such mortgagee may reasonably
require.
Article
X1.
Assignment
and Subletting.
Section
11.01. Assignment and Subletting.
Tenant
shall not assign or encumber this Lease or any interest herein, or sublet the
Leased Premises or any part thereof, or permit the use of the Leased Premises
or
any part thereof by any party other than Tenant, without the prior written
consent of Landlord.
Article
Al.
Covenant
of Quiet Enioyment.
Section
12.01. Covenant
of Quiet Enjoyment.
Landlord
covenants and warrants that it has all necessary right, title and interest
in
the Leased Premises to enter into this Lease and grant tenant the rights herein.
Landlord agrees that if Tenant performs all the covenants and agreements herein
provided to be performed by Tenant, Tenant shall, at all times during the Lease
Term, have the peaceable and quiet enjoyment of possession of the Leased
Premises without any manner of hindrance from Landlord or any persons claiming
under Landlord subject to the terms of any mortgage to which this Lease is
subordinate or subordinated to.
Article
X111.
Termination
of Lease and Surrender of Leased Premises.
Section
13.01. Termination.
This
Lease shall Terminate upon any one (1) of the following
occurrences:
| (a) |
Upon
expiration of ten (10) days following written notice by Landlord
to
Tenant, if Tenant continues to be in default in the performance of
obligations of this Lease required to be performed by
Tenant;
|
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
11
of 17
| (b) |
Upon
expiration of the Initial Term or any Renewal Term where no extension
of the Initial Term or Renewal Term has been
negotiated;
|
| (c) |
Upon
expiration of thirty (30) days following written notice by one party
to
the other during any holdover
period;
|
| (d) |
Upon
expiration of thirty (30) days following written demand by Landlord
to
Tenant, if Tenant continues to be more than Five Hundred Dollars
($500.00)
in arrears in the payment of monies due and owing Landlord's list
of
recommended Preferred Providers as listed in the Flagship Enterprise
Center Building Rules and Regulations as amended from time to time,
for
services rendered to Tenant.
|
| (e) |
Upon
expiration of thirty (30) days following written notice of Landlord's
Board of Director's written findings that Tenant, despite written
notice
and provision of a ninety (90) day period to cure, continues by its
conduct to:
|
| (i.) |
depart
in a material and significant manner from its business intentions,
as originally submitted to Landlord at commencement of
the Initial Term;
|
| (ii.) |
fail
to exercise due diligence in the execution of its business plan and/or
pursuit of its business objectives;
|
| (iii.) |
be
absent from the Building for protracted periods without appropriate
excuse
or justification;
|
| (iv.) |
violate
the terms and provisions of the Articles of Incorporation of the
Flagship
Enterprise Center, Inc.
|
Section
13.02. Surrender.
At the
termination or expiration of this Lease, Tenant shall deliver the Tenant Space
in good order and repair, ordinary wear and tear excepted. Tenant shall not
be
required to surrender any of Tenant's trade fixtures, equipment or personal
property, unless permanently affixed to the Tenant Space, provided that any
trade fixtures, equipment or personal property of Tenant not removed within
forty-eight (48) hours following the termination or expiration of this Lease
shall be deemed abandoned and shall become the sole and exclusive property
of
the Landlord. Tenant shall repair any damage to the Tenant Space caused by
removal of any trade fixtures, equipment, or personal property of Tenant. [n
no
event will Tenant have the right to hold over past the termination of this
Lease. Tenant acknowledges that time is of the essence and that it is of
critical importance for Landlord to have possession of the Tenant Space upon
the
termination or expiration of this Lease. In the event Tenant does not vacate
the
Tenant Space as required in this Lease, Landlord shall be entitled to any and
all remedies at law or in equity, including, without limitation, the right
to
change locks on the building, remove all trade fixtures, equipment or personal
property from the Tenant Space and/or to demolish all improvements in the Tenant
Space, all which shall be without any liability or claim against Landlord,
which
are hereby waived by Tenant.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
12
of 17
Article
XIV.
Enforcement
Expenses.
Section
14.01. Enforcement
Expenses.
In the
event that either party hereto shall be successful in enforcing against the
other any remedy, legal or equitable, for a breach of any of the provisions
of
this lease, there shall be included in the judgment or any decree the reasonable
expenses and attorney fees of the successful party against the unsuccessful
party.
Article
XV.
Notices.
Section
15.01. Notices.
All
notices and demands which may or are required to be given by either party to
the
other hereunder shall be in writing and shall be deemed to have been fully
given
two (2) days after being deposited with the United States Postal Service, or
its
successor, as certified or registered mail, postage prepaid, and addressed
as
follows:
|
To
Tenant.
|
ALTAIR
Nanotechnologies, Inc.
|
|
|
000
Xxxxxx Xxx Xxxx,
|
||
|
Xxxxxx
00000
|
||
|
Attention:
Chief Financial Officer
|
||
|
To
Landlord:
|
Flagship
Enterprise Center, Inc.
|
|
|
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
|
||
|
Xxxxxxxx,
Xxxxxxx 00000
|
||
|
Attention:
Executive Director
|
or
to
such other address as either party may designate from time to time for itself
by
notice similarly given. Any notice to be given may also be given by personal
delivery of the written notice to the person in charge of the business
operations at the Leased Premises at the time of such notice, and shall be
deemed effective as of the date such personal delivery is made.
Article
XVI.
Compliance
With Economic Development Administration ("EDA")
Civil
Rights and Nonrelocation Regulations.
Section
16.01. Compliance.
Inasmuch
as Landlord has received benefits and grants from EDA, Tenant agrees that it
shall comply with EDA civil rights requirements, which, in general, prohibit
unlawful discrimination practices in the work place. Also, Tenant agrees that
it
shall comply with EDA nonrelocation regulations, which, in general, prohibit
use
of EDA financial assistance to assist employers from transferring jobs from
one
commuting area to another.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
13
of 17
Section
16.02. Execution
of Certifications.
Tenant
agrees to execute written certifications exhibiting compliance with the matters
set forth in Section 16.01. More specifically, Tenant agrees to timely execute
the Assurances of Compliance with Civil Rights and Other Legal Requirements,
being Exhibit C" attached hereto. Additionally, Tenant agrees to timely execute
Employer's Nonrelocation Certificate, being Exhibit "C" attached
hereto.
Article
XVII.
General
Provisions.
Section
17.01. Relationship
of the
Parties.
Nothing
herein contained shall be deemed or construed by the parties hereto, nor by
any
third party, as creating a relationship of
principal
and agent, partnership or joint venture between the parties hereof, it being
understood and agreed that nothing herein, no any acts of
the
parties hereto, shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
Section
17.02. Provision
for Non-Waiver.
No delay
or omission of the right to exercise any power by either party shall impair
any
such right or power, or shall be construed as a waiver of any default or as
an
acquiescence thereon. One or more waivers of any covenant, term or condition
of
this Lease by either party shall not be construed by the other party as a waiver
of subsequent breach of the same covenant, term or condition. Consent or
approval by either party to or of any act by the other party of a nature
requiring consent or approval shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent similar act.
Section
17.03. Recording
Memorandum of Lease.
Either
party hereto, upon written request of
the
other, shall join in the execution of
a
Memorandum of Lease in proper form for recording or filing in the office of
the
Recorder of
Madison
County, Indiana, which Memorandum shall set forth the existence of terms of
this
Lease, with subordination of the leasehold interest to any mortgage by the
Landlord and such other terms as the parties may mutually agree
upon.
Section
17.04. Law
of
Indiana Governs.
The laws
of the State of Indiana shall govern the validity, performance and enforcement
of
this
Lease. The invalidity or unenforceability of any provision of this Lease shall
not affect or impair any other provision.
Section
17.05. Complete
Agreement.
The
headings of the several articles of sections contained herein are for
convenience only and do not define, limit or construe the contents of such
articles and sections. All negotiations, considerations, representations and
understandings between the parties are incorporated herein and may be modified
or altered only by memorandum in writing signed by the parties
hereto.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
14
of 17
Section
17.06. Agreement
Binding on Successor and Assigns.
The
covenants, agreements and obligations herein contained shall extend to, bind
and
inure to the benefit not only of the parties hereto, but their respective
personal representatives, heirs, successors and assigns.
Section
17.07. Tenant's
Compliance with Rules and Regulations.
Tenant
agrees to conduct its business and operations so as to comply with the Rules
and
Regulations adopted by the Landlord.
IN
WITNESS WHEREOF, the said parties have hereunto set their hands and seals
this
18th day
of
June,
2007.
|
Tenant
|
Flagship
Enterprise Center, Inc.
|
|
LESSEE
|
LESSOR
|
|
BY.
/s/ Xxxx
Xxxxxxx
|
BY: /s/
Xxxxxx
X.
Xxxxxxxxx
|
|
Xxxxxx
Xxxxxxxxx, CFO
|
Xxxxxx
X. Xxxxxxxxx, Executive Director
|
|
Xxxx
Xxxxxxx
|
|
|
President
& CEO
|
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
15
of 17
EXHIBIT
"A"
Flagship
Business Xxxxxxxxxxx
XXXXX
XXXXXXX - XXXXXX
#
000,
200, and 300
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
16
of 17
EXHIBIT
"B"
RENT
SCHEDULE
|
1st 6
months
|
2nd
6
months
|
2nd 12
months
|
3rd
12
months
|
|
"Linear
Space
|
||||
|
Monthly
Rent*
|
Progression"
See
|
$
3.50
|
$
3.75
|
$
4.00
|
|
Schedule
Below**
|
||||
|
$
3.50
|
*Rent
expressed in annual rental per square foot of Leased Space
Rent
Calculation
Tenant
and Landlord have agreed that Tenant will phase into rented space during the
first
six
months of this lease. This "linear" progression starts with 5,000 square feet
starting on
July 1,
2007 and progresses in subsequent months as follows:
|
July,
2007:
|
$
1,458.00 [$3.50 * 5,000
/
12]
|
|
August,
2007:
|
$
2,917.00 [$3.50 * 10,000 / 12]
|
|
September,
2007:
|
$
4,375.00 [$3.50 * 15,000 / 12]
|
|
October,
2007:
|
$
5.833.00 [$3.50 * 20,000 / 12]
|
|
November,
2007:
|
$
7,292.00 [$3.50 * 25,000 / 12]
|
|
December,
2007:
|
$
8,750.00 [$3.50 * 30,000 / 12]
|
During
the second six months of this Lease [January through June, 2008], Tenant shall
pay to Landlord,
with respect to each calendar year or fractional calendar year, as the case
may
be,
total
rental payments in the monthly sum of Eight Thousand Seven Hundred Fifty Dollars
($
8,750.00), [being the product of $ 3.50, the annual rent per square foot, and
30,000 square
feet,
the area of the Leased Premises, divided by 12 months.
During
subsequent 12 month periods of this Lease, by similar calculation, Tenant shall
pay to Landlord, with respect to each calendar year or fractional calendar
year,
as the case may be, total rental payments as follows:
|
2nd
12
Months:
|
$
9,375.00 / Month
|
4th
12
Months
|
$10,625
/ Month
|
|
|
3rd 12
Months:
|
$
10,000.00 / Month
|
5th
12
Months
|
$10,625
/ Month
|
|
|
(See
attached E-mail.)
|
The
rental payments for the remaining two years of the Initial Lease Term [5 years
ending June 30th,
2012
shall be in the monetary sum mutually agreed to by the parties prior to the
commencement of those years.
070701
Altairnano - Flagship Business Accelerator Lease.doc
Page
17
of 17
From: Art
Xxxxxxxxx [xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx]
Sent: Thursday,
July 05, 2007 11:49 AM
To: Xxxx
Xxxxxxx
Cc: xxxxxx@xxxxxxxxxx.xxx;
Xxxx.Xxxxx@xxxxxxxxxxxxxxxxxxx.xxx; xxxxxxxx@xxxxxxxx.xxx
Subject: RE:
Clarification of our proposed Flagship Accelerator lease rent
calculation
Sensitivity: Confidential
Xxxx,
This
email is to confirm our telephone conversation regarding rent for 30,000 Square
Feet of space in Xxxxx # 000, # 000,
and #
300 in the north end of the Flagship Business Accelerator Building located
at
0000 Xxxxxxxxxx Xxxxx in Anderson, Indiana.
The
$
4.25 / Square Foot rate that you have requested for years four and five [the
fourth and fifth 12 months of the lease]
is
acceptable to The Flagship.
Thank
you
for helping us to clarify this important term.
Best
Regards,
Art.
Xxxxxx
X.
Xxxxxxxxx
Executive
Director,
Flagship
Enterprise Center
Office;
(000) 000-0000
