EQUITY CLIENT LEASE [20% RENT SUBSIDY]
Exhibit
10.1
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[20%
RENT SUBSIDY]
THIS
LEASE, is made and entered into this 1st
Day of
October, 2005, by and between FLAGSHIP ENTERPRISE CENTER, INC., an Indiana
not-for-profit corporation (hereinafter called “Landlord”), and ALTAIR
Nanomaterials, Inc., 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 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 as Suites #114, 115, 116, & 117 and Labs #2, 3, & 4
consisting of 4744 square feet of space 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:
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(a)
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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. 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. Landlord shall provide Tenant
with
monthly invoices reflecting any such additional computer systems
and
services charges and Tenant shall pay Landlord for such charges within
fifteen (15) days of receipt of each
invoice.
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1
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(b)
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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.
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(c)
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Parking.
Landlord shall provide Tenant with access to parking facilities,
which
shall be subject to availability and Landlord’s parking facilities
policies
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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.
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
October, 2005 (hereinafter referred to as the “Commencement Date”) and ending on
the 31st
day of
September, 2008.
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.”
2
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.”
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 Madison
County 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 Battery Manufacturing 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 ½%) per month.
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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.
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.
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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 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. 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.
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.
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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.
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.
6
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:
| (a) |
This
Lease shall terminate on the twentieth (20th
)
day following the giving of said
notice;
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| (b) |
Tenant
shall surrender possession of the Leased Premises on or before such
termination date; and
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| (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.
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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.
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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;
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| (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;
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| (c) |
The
making by Tenants of an assignment for the benefit of
creditors;
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| (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
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| (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.
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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.
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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.
8
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
XI.
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;
|
| (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.
|
9
| (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.
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:
10
|
ToTenant:
|
ALTAIR
Nanomaterials, Inc.
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇,
▇▇
▇▇▇▇▇
Attention:
Chief Financial Officer
| 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.
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.
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.
11
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.
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
27th
day
of
September, 2005.
|
ALTAIR NANOMATERIALS, INC.
LESSEE
BY:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
|
FLAGSHIP ENTERPRISE CENTER, INC.
LESSOR
BY:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive
Director
|
12
EXHIBIT
“A”
FIRST
FLOOR DIAGRAM - SUITES 114, 115, 116, & 117 AND LABS 2, 3, &4
13
EXHIBIT
“B”
RENT
SCHEDULE
Subsidized
Rent / 20% Subsidy
|
1st
12
months
|
2nd
12
months
|
3rd
12
months
|
4th
12
months
|
5th
12
months
|
|
|
Stipulated
Fair Market Rent*
|
$20.00
|
$21.00
|
$22.00
|
$23.00
|
$24.00
|
|
20%
Rent Subsidy*
|
$
4.00
|
$
4.20
|
$
4.40
|
N/A
|
N/A
|
|
Monthly
Rent*
|
$
16.00
|
$
16.80
|
$
17.60
|
$23.00
|
$24.00
|
*Rent
expressed in annual rental per square foot of Leased Space
Rent
Calculation
During
the first 12 months of this Lease, Tenant shall pay to Landlord, with respect
to
each calendar year or fractional calendar year, as the case may be, total rental
payments in the monthly sum of Seven Thousand Nine Hundred Seven Dollars ($
7,907), being the sum of: (a) Subsidized Rent of Six Thousand Three Hundred
Twenty Five Dollars ($ 6,325) [being the product of $ 16.00, the subsidized
annual rent per square foot, and 4744 square feet, the area of the Leased
Premises, divided by 12 months]; and (b) common area monthly rent of One
Thousand Five Hundred Eighty One Dollars ($1,581), 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: $
8,302.00 / Month
3rd
12
Months: $
8,697.00 / Month
4th
12
Months $
11,366.00 / Month
5th
12
Months $
11,860.00 / Month
14
EXHIBIT
“C”
EDA
FORMS
15
October
5, 2005
Dr.
▇▇▇▇▇
▇▇▇▇▇
ALTAIR
Nanomaterials, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇▇▇,
This
letter is to confirm our recent discussions regarding rent covered under the
proposed client lease agreement effective October 1st
2005.
The Flagship Enterprise Center board of directors has now authorized the
$100,000 rent credit. This credit will appear on your October rent invoice
and
will be carried forward each month thereafter, until it has been consumed.
In
light of this authorization, please ask ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to sign and return
three original copies of the lease agreement. I will sign the originals and
return one set for your records.
▇▇▇▇,
I
think you know how excited wee are to have you as our newest client. The
Flagship Enterprise Center team looks forward to composing and implementing
the
client support program that enables your team to achieve all of its
goals.
Best
Regards,
Flagship
Enterprise Center
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
Executive
Director
▇-▇▇▇-▇▇▇-▇▇▇▇
ph
▇-▇▇▇-▇▇▇-▇▇▇▇
fax
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
cc: ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
FEC
Board of Directors
16