CLIENT LEASE [20% RENT SUBSIDY]
Exhibit
10.14
 |
 |
[20%
RENT SUBSIDY]
THIS
LEASE, is made and entered into this 1st
Day
of
September, 2006, by and between FLAGSHIP ENTERPRISE CENTER, INC., an Indiana
not-for-profit corporation Altairnano Technologies, Inc., a Nevada Corporation,
and Tenant an Indiana Limited Liability 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
Enterprise Center Building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Building") and including
all that
certain space, which is on the first floor of the Flagship Enterprise Center
Building
which is designated Suite #113 consisting of 440 square feet as shown
in
Exhibit "A." Because of the special nature of Landlord's building, Landlord
has
the option,
in its sole discretion, to require Tenant to move to comparable space in the
Building during the term of this Lease.
Section
1.02. 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:
Page
1 of
20
|
(a)
|
Central
Office Services.Landlord
shall provide a staffed reception area, access to common areas,
including
scheduled access to conference rooms; access to shared restrooms,
exercise
room and kitchen facilities; a centralized mail area, including
a mailbox
for Tenant; access to centralized
copying and faxing facilities and equipment; Landlord's standard
centralized computer systems and services, including internet access;
and security and janitorial services. Tenant is responsible for
the
cost
of any additional office services required by Tenant. Optional
services
includes
a $20.00 fee per data ▇▇▇▇ used to access broadband and $2.50 per
month fee over 36 months for access to VOIP Power over Ethernet.
In
the
event that Tenant desires to replace or upgrade Landlord's standard
computer systems or services, Tenant must obtain Landlord's prior
written
approval.
Tenant shall pay all costs and fees incurred in connection with
any
replacement or upgrade of Landlord's standard computer systems
or
services.
|
|
(b)
|
Telephone
Infrastructure Services. The
Landlord will assist in arranging Tenant
with local calling area telephone service, telecommunication lines
and
telephone and computer network jacks. Tenant is responsible for
the
cost
of these lines and any other expenses associated with its telephone
service
and equipment, including but not limited to charges associated
with
the installation of additional telephone lines, additional bandwidth
requirements,
long distance charges, and all other expenses. In the event that
Tenant desires to replace or upgrade telephone equipment or service,
Tenant
must obtain Landlord's prior written approval. Tenant shall pay
all
costs
and fees incurred in connection with such replacement or upgrade.
Landlord
shall provide Tenant with monthly invoices reflecting any such
additional
telephone systems and services charges and Tenant shall pay Landlord
for such charges within fifteen (15) days of receipt of each invoice.
|
|
(c)
|
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
1.03. 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.
Page
2 of
20
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 three (3) years (the "Initial
Term"), commencing on the 1st
day
of
September, 2006 (hereinafter referred to as the "Commencement Date") and ending
on the 31st,
day of
August, 2009.
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.
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. Subsidized
Rent. Based
upon negotiations between the parties, Tenant
shall pay, as rent, to Landlord, a sum equal to eighty percent (80%) of the
stipulated
fair market rent of the Leased Premises as set forth in Exhibit "B" ("Subsidized
Rent"). Such Subsidized 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. It is understood, however, that should the
parties
agree to extend the Lease Agreement by one (1) or more Renewal Terms, the
rent
shall be fixed for specified Renewal Terms in amounts no greater than the sums
recited in the Rent Schedule, attached hereto as Exhibit "B."
Page
3 of
20
Section
3.03. Obligation
of Tenant to Relocate in Madison County, Indiana/Provision
for Reimbursement of Subsidy to Landlord. Tenant
agrees that, following termination or expiration of this Lease for any reason
(other than any termination by Landlord during the Initial Term without cause),
Tenant shall maintain its principal
place of business and operations in the State of Indiana for a period of time
at
least
equal to the length of time that Tenant leases space within the Flagship
Enterprise Center (the "Subsidized Term"). If, after termination or expiration
of this Lease, Tenant relocates its principal place of business and operations
outside of Madison County, Indiana prior to expiration of the Subsidized Term,
then Tenant shall pay to Landlord an amount
equal to the difference between (i) the fair market rent for leasing Tenant
Space during Tenant's tenancy at the Flagship Enterprise Center and (ii) the
total amount of rent
paid
by Tenant to Landlord during such tenancy. The "fair market rent" shall be
the
stipulated
fair market rental as set forth in Exhibit "B". The exception to this clause
shall occur
with a change in the ownership of a majority of a tenant's stock; if a majority
interest is acquired by another entity, and that entity requires the relocation
of the company outside of Madison County, Indiana, then this clause shall not
apply to the tenant.
Section
3.04. Landlord's
Payment of Utilities. Landlord
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. Provided, however, should Tenant's use of the
Leased
Premises cause an unreasonable or unexpected use of any utility or utility
service, Landlord reserves the right, after written notice to Tenant, to charge
such excessive utility use and the charges therefore to Tenant.
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 1/2%) per
month.
Page
4 of
20
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.
Landlord
may relocate Tenant to comparable space within the Building at Landlord's
sole
discretion. 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.
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.
Page
5 of
20
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.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.
Article
V.
Maintenance
and Repairs.
Section
5.01. Maintenance
by Landlord. 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. Landlord shall also 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.
Section
5.02. Payment
of Cleaning & Janitorial Service Expenses. Tenant
shall assume
and pay ail 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. Landlord
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
kitchen area.
Page
6 of
20
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.
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.
Page
7 of
20
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.
Page
8 of
20
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 replacement
value of the Building (exclusive of the foundation) in its condition just prior
to
the
occurrence of the damage, Landlord may, no later than the sixtieth
(60th)
day
following
such damage, give Tenant notice that it elects to terminate this Lease. if
such
notice
shall be given:
Page
9 of
20
|
(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;
|
Page
10
of 20
|
(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;
|
|
(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 reset 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.
Page
11
of 20
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
Xl.
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
XII.
Covenant
of Quiet Enjoyment.
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
XIII.
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;
|
Page
12
of 20
|
(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. In 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.
Page
13
of 20
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:
|
Altairnano
Technologies, Inc.
|
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Attention:
Chief Financial Office
|
|
To
Landlord:
|
Flagship
Enterprise Center, Inc.
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
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.
Page
14
of 20
Article
XVI.
Compliance
With Economic Development Administration ("EDA"1
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.
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.
Page
15
of 20
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.
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
1st, day
of
August, 2006.
|
Altairnano
Technologies, Inc.
|
Flagship
Enterprise Center
|
|
|
LESSEE
|
LESSOR
|
|
|
BY:
 |
By:
 |
|
|
Chief
Financial Officer
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Executive Director
|
Page
16
of 20
EXHIBIT
"A"
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
Page
17
of 20
Page
18
of 20
RENT
SCHEDULE
Subsidized
Rent /
20%
Subsidy
|
1st
12
|
2nd
12
|
3rd
12
|
4th
12
|
5th
12
|
|
|
months
|
months
|
months
|
months
|
months
|
|
|
Stipulated Fair
Market
Rent*
|
$21.00
|
$22.00
|
$23.00
|
$24.00
|
$25.00
|
|
20%
Rent Subsidy*
|
$
4.20
|
$
4.40
|
$
4.60
|
N/A
|
N/A
|
|
Monthly
Rent*
|
$
16.80
|
$
17.60
|
$
18.40
|
$24.00
|
$25.00
|
*Rent
expressed in annual rental per square foot of Leased Space
Rent
Calculation
During
the first 12 months of this Lease, Tenant shall pay to Landlord, with respect
to
each
calendar year or fractional calendar year, as the case may be, total rental
payments in the monthly sum of Seven Hundred Seventy Dollars ($ 770.00),
being the sum of: (a) Subsidized
Rent of Six Hundred Sixteen Dollars ($ 616.00) [being the product
of
$
16.80, the subsidized annual rent per square foot, and 440
square feet, the area of the Leased Premises,
divided by 12 months]; and (b) common area monthly rent of One Hundred
Fifty Four Dollars ($ 154.00),
representing a surcharge of twenty-five percent (25%) of the basic monthly
rent
to cover
the
Landlord's cost of maintaining and improving the common areas within the
building.
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:
|
$
807.00 / Month
|
|
3rd
12
Months:
|
$
843.00 / Month
|
|
4th
12
Months
|
$
1,100.00 / Month
|
|
5th
12
Months
|
$
1,146.00 / Month
|
Page
19
of 20
EXHIBIT
"C"
EDA
FORMS
(ALREADY
ON FILE WITH
FEC)
Page
20 of 20