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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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