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LEASE AGREEMENT

Lease Agreement

LEASE AGREEMENT | Document Parties: BASIN WATER, INC. | Craft Real Estate, LLC | Craft Real Property, LLC | MPT, Inc You are currently viewing:
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BASIN WATER, INC. | Craft Real Estate, LLC | Craft Real Property, LLC | MPT, Inc

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Title: LEASE AGREEMENT
Date: 9/17/2007
Industry: Water Utilities     Law Firm: Latham Watkins     Sector: Utilities

LEASE AGREEMENT, Parties: basin water  inc. , craft real estate  llc , craft real property  llc , mpt  inc
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Exhibit 10.26

LEASE AGREEMENT

This Lease Agreement (the “ Lease ”) is made as of the 14th day of September, 2007, by and between Craft Real Property, LLC, a Tennessee limited liability company (the “ Landlord ”) and Basin Water – MPT, Inc., a Delaware corporation (the “ Tenant ”).

ARTICLE 1. DESCRIPTION OF PREMISES

1.1 Premises . Landlord hereby leases to Tenant and Tenant leases from Landlord, pursuant to the terms, conditions and uses herein set forth, (a) that certain real property located at 2070 Airways Boulevard, Memphis, Tennessee and more particularly described in Exhibit A (the “ Land ”); and (b) all buildings, structures, and other improvements and appurtenances located on the Land (the “ Building ” and, together with the Land, the “ Premises ”).

ARTICLE 2. TERM

2.1 Lease Term . The term of this Lease will be for five (5) years commencing on September 14, 2007 (the “ Commencement Date ”) and ending on September 13, 2012 (“ Initial Lease Term ”). Tenant has five (5) consecutive three (3) year options to extend the Lease Term, as further described in Section 2.2 (each a “ Renewal Term ” and, together with the Initial Lease Term, the “ Lease Term ”) upon the same terms and conditions applicable during the Initial Lease Term.

2.2 Options To Extend . Tenant shall have the option to extend the term of this Lease for five (5) consecutive three (3)-year periods. Tenant shall exercise the option by delivery of written notice to Landlord not less than thirty (30) days prior to the expiration of the initial term and, if exercised, the expiration of each renewal term, of this Lease. If said notice is not delivered within said time period(s), this option shall terminate.

ARTICLE 3. RENT

3.1 Base Rent . Tenant shall pay to Landlord an annual rental in the amount of Eighty One Thousand Nine Hundred and no/100 Dollars ($81,900) payable in equal monthly installments of Six Thousand Eight Hundred Twenty-Five and no/100 Dollars ($6,825) per month, in lawful money of the United States payable in advance on the first day of each month of the Lease Term; provided , however , that if the Commencement Date occurs on any day other than the first day of a calendar month, Base Rent for the partial month commencing on the Commencement Date shall paid on the date hereof. Said monthly installments shall hereinafter be referred to as the “ Base Rent .” For purposes of this Lease, “ Rent ” shall mean the Base Rent plus any other charges due Landlord by Tenant under this Lease. During the Initial Lease Term, the Base Rent shall not be subject to any increases. In the event that the Tenant elects to extend the Lease Term, the Base Rent may be increased based on the fair rental value of properties in the Premise’s neighborhood; provided, however , such Base Rent shall not be increased by more than five percent (5%) from the previous Lease Term.

 


3.2 Additional Rent . In addition to Base Rent, Tenant shall pay Landlord (or the appropriate third party, as applicable), as additional rent under this Lease, reimbursement for all of Landlord’s costs and expenses in maintaining and operating the Premises, including, without limitation, (a) utilities in accordance with Section 6.2 ; (b) insurance in accordance with Section 8.2 ; and (c) real estate taxes in accordance with Article 9 . Except where this Lease provides otherwise, Tenant shall pay all Additional Rent within fifteen (15) business days after receipt of an invoice and such supporting backup documentation as may be reasonably requested by Tenant from time to time.

ARTICLE 4. USE

4.1 Permitted Use of Premises . The Premises may be used and occupied by Tenant, any subtenant of Tenant or their respective agents, employees, licensees or invitees, for any and all businesses or activities which the Premises may be engaged under applicable law. Tenant need not operate the Premises or conduct business of any nature in the Premises, or use or operate the Premises in any particular manner. Tenant may discontinue operation of the Premises at any time or from time to time and Tenant may vacate the Premises.

ARTICLE 5. DEVELOPMENT, ALTERATIONS AND ADDITIONS

5.1 Construction . Landlord hereby acknowledges that Tenant may desire to develop the Premises by constructing additional buildings, offices, facilities, warehouses, or other improvements thereon. At Tenant’s sole cost and expense, Tenant may perform any alteration, construction, demolition, development, expansion, reconstruction, redevelopment, repair, restoration, or other work affecting any or all of the Premises, including new construction (“ Construction ”), with Landlord’s prior written consent which shall not be unreasonably withheld. Tenant shall pay for all Construction when and as required by the parties that perform such Construction; provided , however , Tenant reserves the right to contest, in it sole and absolute discretion, any and all costs payable in connection with such Construction. Tenant may defer payment of the contested obligation pending outcome of such contest. All improvements that Tenant constructs on the Land shall become part of the Premises, but shall not be subject to Additional Rent. The buildings shall be designed, constructed and completed in accordance with applicable law and when completed shall comply in all material respects with all laws, ordinances, rules, regulations and orders of all Governmental Authorities applicable thereto, and all recorded CC&Rs applicable to the Premises.

5.2 Application and Approvals . Tenant shall apply to each applicable governmental agency, authority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Premises (“ Governmental Authority ”) for such licenses, permits, approvals, consents, certificates, rulings, variances, authorizations, or amendments to any of the foregoing as shall be necessary under any law for the commencement, performance, or completion of any Construction, or the use, occupancy, maintenance, or operation of the Premises (collectively, “ Approvals ”) as any Construction shall require. Upon Tenant’s request, Landlord shall, without cost to Landlord, promptly join in and execute any agreement, application, certificate, document, or submission (or amendment of any of the foregoing) necessary or appropriate for any Construction, including any application for any building permit, certificate of occupancy, utility service or hookup, easement, covenant,

 

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condition, restriction, subdivision plat, or such other instrument (collectively, “ Applications ”) as Tenant requests, and otherwise cooperate with Tenant in obtaining Approvals. Landlord grants to Tenant a power of attorney, coupled with an interest, and therefore irrevocable, to sign on Landlord’s behalf any Application that this Lease requires Landlord to sign. Promptly upon Tenant’s request and without charge (except reimbursement of Landlord’s reasonable attorneys’ fees), Landlord shall furnish all information in its possession that Tenant reasonably requests for any Application. Landlord assumes no liability by cooperating with any Construction.

5.3 Landlord Nonopposition . Landlord shall not appear in opposition to any Application brought, sought, or defended by Tenant before any Governmental Authority arising out of any Application consistent with this Lease.

5.4 Trade Fixtures . Tenant may install trade fixtures, machinery or other trade equipment in conformance with the ordinances of all applicable duly constituted public authorities. Tenant shall have the absolute right before the end of the Lease Term to repair or remove any Tenant owned equipment or machinery from the Premises.

5.5 Personal Property . Landlord waives all rights in Tenant’s personal property, including without limitation, Tenant’s inventory, stock-in-trade, trade fixtures, and removable equipment and fixtures. Landlord agrees to execute, upon request and deliver the executed original to Tenant within ten (10) days after receipt of written request, a confirmation of such waiver in such form as is satisfactory to Tenant or Tenant’s lenders.

ARTICLE 6. UTILITIES AND SERVICES

6.1 Utilities . Tenant shall make all arrangements for and pay for all water, sewer, gas, heat, light, power, telephone service and any other service or utility Tenant requires at the Premises. Landlord shall not be liable for any failure or interruption of any utility service being furnished to the Premises, and no such failure or interruption shall entitle Tenant to terminate this Lease.

6.2 Landlord Service . In the event that any utilities are furnished by Landlord, Tenant shall pay to Landlord the cost thereof in the manner set forth in Section 3.2 . Tenant’s cost shall be the total cost shown on utility meters servicing the Premises and any extraordinary use which may be made by Tenant.

ARTICLE 7. INDEMNIFICATION

7.1 Indemnity of Landlord . Tenant hereby agrees to indemnify, defend (with attorneys approved by Landlord), protect, and hold Landlord and Landlord’s agents, employees, directors, officers, managers, members, partners, affiliates, independent contractors and property managers (“ Landlord’s Agents ”), harmless from any and all liabilities, costs, expenses and losses by reason of injury to person or property (“ Losses ”), caused by, arising out of, or related to, the condition of the Premises or the use or occupancy of the Premises by Tenant, its agents, directors, officers, managers, members, partners, affiliates, independent contracts and property managers, or invitees (“ Tenant’s Agents ”), including without limitation, any liability for injury to the person or property of Tenant or Tenant’s Agents, but excepting any Loss resulting from

 

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the willful breach of the Lease by Landlord or the gross negligence or willful misconduct of Landlord or Landlord’s Agents. Tenant’s obligation hereunder shall survive the termination of this Lease with respect to any claims or liability arising in connection with any event occurring prior to such termination. This paragraph does not apply to Hazardous Materials Law and Hazardous Materials Discharges, which are covered elsewhere.

7.2 Landlord Indemnification . Landlord agrees to indemnify, defend (with attorneys approved by Tenant), protect, and hold Tenant and Tenant’s Agents harmless from any and all loss, cost, damage, expense and liability (including without limitation court costs and reasonable attorneys’ fees) incurred in connection with or arising from any Losses caused by the gross negligence or willful misconduct of Landlord and/or any of Landlord’s Agents. The obligations of Landlord under this Section 7.2 shall survive the termination of this Lease with respect to any claims or liability arising in connection with any event occurring prior to such termination. This paragraph does not apply to Hazardous Materials Law and Hazardous Materials Discharges, which are covered elsewhere.

7.3 Claims for Indemnification . If any indemnitee under Sections 7.1 or 7.2 above (an “ Indemnitee ”) shall believe that such Indemnitee is entitled to indemnification pursuant to this Article 7 in respect of any Losses, such Indemnitee shall give the appropriate indemnifying party (each, as applicable, an “ Indemnifying Party ”) prompt written notice thereof. Any such notice shall set forth in reasonable detail and to the extent then known the basis for such claim for indemnification. The failure of such Indemnitee to give notice of any claim for indemnification promptly shall not adversely affect such Indemnitee’s right to indemnity hereunder except to the extent that such failure adversely affects the right of the Indemnifying Party to assert any reasonable defense to such claim.

7.4 Defense of Claims . In connection with any claim which may give rise to indemnity under this Article 7 resulting from or arising out of any claim or proceeding against an Indemnitee by a person that is not a party hereto, the Indemnifying Party shall (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or proceeding. The Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly perform resolution thereof. Without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, the Indemnifying Party will not enter into any settlement of, or any claim or proceeding which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. Without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, the Indemnitee will not enter into any settlement or any claim or proceeding which would lead to liability or create any financial or other obligation on the part of the Indemnifying Party unless the Indemnifying Party has, after written notice, failed or refused to acknowledge responsibility for or defend such claim or proceeding within a reasonable period of time after notice is provided pursuant to Section 7.3 . If the Indemnifying Party fails to discharge or undertake to defend against such liability, upon receipt of written notice from the Indemnitee of such failure, the Indemnifying Party shall have thirty (30) days to cure such failure by prosecuting such a defense. If the Indemnifying Party

 

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fails to do so within such cure period, then the Indemnitee may settle the same and the Indemnifying Party’s liability to the Indemnitee shall be conclusively established by such settlement provided that such settlement is entered into on commercially reasonable terms and conditions, the amount of such liability to include both the settlement consideration and the costs and expenses (including attorneys’ fees) incurred by the Indemnitee in effecting such settlement.

ARTICLE 8. INSURANCE

8.1 Insurance . Tenant shall maintain a policy or policies of insurance protecting Landlord against the following:

8.1.1 Fire and other perils normally included within the classification of fire and extended coverage, together with insurance against vandalism and malicious mischief, to the extent of the full replacement cost of the Premises.

8.1.2 Tenant obtain and keep in force a Commercial General Liability policy of insurance protecting Tenant and Landlord as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Tenant shall add Landlord as an additional insured by means of an endorsement at least as broad as the insurance carrier’s “additional insured-managers or landlord of Premises” endorsement and coverage shall also be extended to include damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an “insured contract” for the performance of Tenant’s indemnity obligations under this Lease.

8.1.3 All insurance policies this Lease requires shall be issued by carriers that are lawfully doing business in the state of Tennessee. Tenant may provide any insurance under a “blanket” or “umbrella” insurance policy, provided that (a) such policy or a certificate of such policy shall specify the amount(s) of total insurance allocated to the Premises, and (b) such policy otherwise complies with this Lease.

8.2 Failure to Provide Insurance . Tenant acknowledges that any failure on its part to obtain or maintain the insurance required under Sections 8.1 will expose Landlord to risk and potentially cause Landlord to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. In the event Tenant does not maintain the insurance required under this Article 8 , Landlord may, in Landlord’s sole and absolute discretion, obtain such insurance and Tenant shall pay Landlord as Additional Rent all costs and expenses in connection with such policy or policies of insurance.

8.3 Notices to Landlord . On the Commencement Date, and no later than 10 days before any insurance required under this Article 8 expires or is cancelled, Tenant shall deliver to Landlord certificates of insurance evidencing Tenant’s maintenance of all insurance required under this Article 8 , in each case providing coverage for at least one year from the date

 

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delivered. Upon receipt of each policy of insurance evidencing insurance required under this Article 8 , Tenant shall promptly deliver a copy of any such policy of insurance to Landlord. In the event of any dispute regarding Tenant’s compliance with the insurance requirements of this Lease, Landlord may at Landlord’s option obtain a certificate from Tenant’s insurance broker confirming such compliance. In addition to the obligations under this Section 8.3 , Tenant shall direct the insurance carrier to give Landlord 10 days’ prior written notice of cancellation or nonrenewal of any insurance required under this Article 8 .

ARTICLE 9. TAXES

9.1 Personal Property Taxes . Tenant shall pay prior to delinquency all taxes, assessments, license fees, and other public charges levied, assessed or imposed or which become payable during the term of this Lease upon any trade fixtures, furnishings, equipment and all other personal property of Tenant installed or located in the Premises. Whenever possible, Tenant shall cause said trade fixtures, furnishings, equipment and personal property to be separately assessed.

9.2 Real Estate Taxes . Landlord shall provide Tenant the real estate tax bills in its possession at least 45 days before such taxes are due and payable. Tenant shall pay to Landlord at least 20 days before due any and all real estate taxes, as defined in Section 9.3 , assessed or imposed, or which become a lien upon or become chargeable against or payable in connection with the Premises directly to the taxing authority. Within five business days after such payment, Tenant shall provide Landlord evidence of such payment in a form reasonably acceptable to Landlord. Real estate taxes for the last year of the term of this Lease shall be prorated between Landlord and Tenant as of the expiration date of the term.

9.3 Definition of Taxes . For purposes of this Lease, “real estate taxes” shall also include each of the following:

9.3.1 Any form of assessment, license fee, license tax, bond or improvement bond, business license tax, commercial rental tax, levy, charge, penalty, or tax, imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, drainage or other improvement or special district thereof, as against any legal or equitable interest of Landlord in the Premises, personal property or the real property of which the Premises constitute a part;

9.3.2 Any assessment, tax, fee, levy or charge in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included with the definition of real estate tax. It is the intention of Tenant and Landlord that all such new and increased assessments, taxes, fees, levies and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of real estate tax for purposes of this Lease;

9.3.3 Any tax allocable to or measured by the area of the Premises or the rental payable hereunder, including without limitation, any gross income tax or excise tax levied by the State, any political subdivision thereof, city, or federal government, with respect to the receipt of such rental, or upon or with respect to the possession, leasing, operating, management,

 

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maintenance, alteration, repair, use of occupancy by Tenant of the Premises, or any portion thereof;

9.3.4 Any tax, fee, levy, assessment or charge, or any increase therein: (a) imposed by reason of events occurring during the term of this Lease, and (b) levied or assessed on machinery or equipment, if any, provided by Landlord to Tenant pursuant to this Lease; and

9.3.5 “Real estate taxes” shall not include Landlord’s federal or state income, franchise, inheritance or estate taxes.

9.4 Contest . Notwithstanding anything to the contrary in this Lease, Tenant shall have the exclusive right to contest, at its sole cost, by appropriate legal proceedings diligently conducted in good faith, the amount or validity of any real estate taxes; the valuation, assessment, or reassessment (whether proposed, phased, or final) of the Premises for real estate taxes; and the amount of any such tax (any of the foregoing, a “ Contest ”). Tenant may defer payment or performance of the contested obligation pending outcome of the Contest, provided that Tenant causes the following conditions (collectively, the “ Contest Conditions ”) to remain satisfied:

9.4.1 No Liability . Such deferral or noncompliance creates no material risk of a lien, charge, or other liability of any kind against the Premises, unless Tenant has given Landlord a bond, letter of credit, or other security reasonably satisfactory to Landlord equal to the reasonably estimated amount of such lien, charge, or other liability.

9.4.2 No Forfeiture . Such deferral or noncompliance will not place the Premises in material danger of being forfeited or lost.

9.4.3 No Tax Deed . If, at any time, payment of any real estate taxes is necessary to prevent the imminent (i.e., within 30 days) delivery of a tax deed to the Land for nonpayment, then Tenant shall pay or cause to be paid the sums in sufficient time to prevent delivery of such deed.

9.4.4 Named Parties . If Landlord has been named as a party in any action, then Tenant shall cause Landlord to be removed as such party and Tenant substituted in Landlord’s place, if permissible under the circumstances.

9.5 Landlord Obligations and Protections . Landlord need not join in any Contest unless (a) Tenant has complied with the Contest Conditions; and (b) such Contest must be initiated or prosecuted in Landlord’s name. In such case, Landlord shall cooperate, as Tenant reasonably requests, to permit the Contest to be prosecuted in Landlord’s name. Landlord shall give Tenant any documents, deliveries, and informati


 
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