LEASE AGREEMENT
Exhibit 10.8
THIS LEASE AGREEMENT is made this 4th day of May, 2010 by and between the Finger Lakes Economic Development Center, hereinafter referred to as “Landlord”, and Greencell, Inc. hereinafter referred to as “Tenant.”
WITNESSETH:
1. PREMISES & TITLE
1.1 For and in consideration of the payment of the rental and performance of the covenants and agreements hereinafter set forth, Landlord leases to Tenant, and Tenant accepts from Landlord, the premises located at 1 Keuka Business Park, in the Town of Jerusalem, State of New York, and consisting of production space of 9,900 square feet, along with 4,100 square feet of office space to be shared with SenCer, INC., as agreed upon with SenCer, Inc., which may be used for common purposes between the two companies, in the building known as the Canandaigua Building and also suite #210 of the Keuka Business Park and more fully shown on Exhibit A, attached hereto and incorporated herein by this reference (“the Leased Premises”). Nothing about the fact that Tenant may agree to use some space in common with the aforesaid SenCer, Inc. shall relieve Tenant of any of its responsibilities and obligations under this lease.
1.2 Landlord warrants that it has title to the Leased Premises, and that it has the right to lease the same for the term of this Lease. Landlord covenants that Tenant, upon the payment of the rent herein stipulated and the performance of all the covenants and agreements hereunder, shall have the peaceful and quiet possession, use and enjoyment of the Leased Premises, without hindrance on the part of the Landlord or any party claiming by, through or under it, for the term of this Lease.
1.3 This lease is and shall be subordinate at all times to any mortgage or mortgages which may now be or at any time hereafter shall be placed upon or made a lien upon the said leased premises or any part thereof and to any extension, spreading, or modification thereof, The Tenant will, without expense to the Landlord, promptly execute and deliver on demand such further and additional instrument or instruments in proper form for recording subordinating this lease to any such mortgage or mortgages as shall be requested by the Landlord or by any mortgage or proposed mortgage. The Tenant hereby appoints the Landlord the attorney-in-fact of the Tenant revocable to execute and deliver any such instrument or instruments for and on behalf of and in the name of the Tenant.
1.4 The TENANT represents that TENANT has inspected and examined the premises and accepts them in their present condition. Prior to the commencement of this Lease, Landlord and Tenant shall prepare and sign an inspection report which shall establish the condition of the Leased Premises at the commencement of the Lease.
2. TERM
2.1 The term of this Lease shall be for a period commencing on May 1, 2010 and terminating at midnight on April 30, 2011.
2.2 Tenant shall have the option to cancel this Lease Agreement without penalty only under the following conditions:
1) Tenant is relocating to another facility inside Xxxxx County, and
2) Tenant gives at least 90 days notice of such relocation.
3. RENTAL
3.1 Tenant covenants and agrees to pay to Landlord for the use and occupancy of the Leased Premises according to the following schedule, commencing on April 1, 2010:
| Lease Dates |
Monthly Rental Payment | ||
| 5/1/2010-4/30/2011 |
$ | 4,450 | |
3.2 The monthly payments to be made at the FLEDC office at 0 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxx, Xxx Xxxx.
3.3 Late payments will be billed 7% interest per annum starting on the 15th of the month, retroactive to the first of that month, for each month overdue.
4. UTILITIES
4.1 Landlord shall provide water and sewer utility services for the leased premises. All telecommunications systems are the responsibility of the tenant.
4.2 Tenant is responsible at their own expense for heating and electrical costs associated with the leased space in Canandaigua Building through direct xxxxxxxx with the Penn Yan Municipal Utilities Board and NYSEG.
Tenant shall pay $450/month as a utility allowance over the term of the lease for Suite 210 in Keuka Business Park payable in the same terms as Section 3 above.
The landlord and tenant shall annually review estimated utility costs and make adjustments to the monthly payment, provided both parties are in agreement, and sign an addendum to be added to this lease agreement.
4.3 In the event of any problem with the electrical service, the Tenant shall first notify the Landlord and will not contact the Penn Yan Municipal Utilities Board without Landlord’s prior approval.
5. USE OF LEASED PREMISES
5.1 Tenant covenants and agrees that the leased premises shall be used solely and exclusively for the purpose of production, assembly, warehousing, and distribution of composite material known as “UltraTemp”.
5.2 Tenant agrees to conduct its business solely within its leased premises. Use of additional space will require prior written consent of Landlord.
5.3 Tenant shall not obstruct any of the roadways extending through the Leased Premises.
5.4 Tenant shall observe and comply with all laws, statutes, ordinances, rules, regulations, orders and/or directives or governmental authorities pertaining to the manner in which Tenant uses the leased premises. Tenant shall also observe and comply with all reasonable rules and regulations which Landlord may make from time to time for the management, safety, care, and cleanliness of the building and grounds, the parking of vehicles and the preservation of good order therein as well as for the convenience of other occupants and tenants of the building. The violations of any such rules and regulations shall be deemed a material breach of this Lease by Tenant
5.5 Tenant is strictly prohibited from bringing any chemicals or toxic materials onto the premises except those materials which will be used directly in the conduct of Tenant’s business as described above (5.1), and in such cases, must be properly stored, dispensed and disposed of in accordance with all applicable regulations.
6. SIGNS
Tenant shall not have the right to place signs, lights, poles, or mail boxes in or about the Leased Premises without the prior written consent of Landlord. If that consent is granted, Tenant agrees to remove all such signs, lights and poles prior to expiration of this Lease, repairing any damage to leased premises caused by such removal, and during the term of this Lease to maintain the same in good condition and repair.
7. ALTERATIONS, REPLACEMENTS AND IMPROVEMENTS
7.1 Tenant may not make any alterations, additions or improvements to the Leased Premises without the prior written consent of Landlord. If such consent is granted and unless expressly agreed otherwise in writing, Tenant agrees to remove all such alterations, replacements and improvements prior to expiration of this Lease, repairing any damage to the leased premises caused by such removal, and during the term of this Lease to maintain the same in good condition and repair.
7.2 Any such alterations, additions or improvements, unless expressly agreed otherwise, may be removed by Tenant at any time, provided that Tenant shall repair any damage to the Leased Premises caused by such removal.
8. REPAIR AND MAINTENANCE
8.1 LANDLORD’S REPAIR AND MAINTENANCE. Landlord at its cost shall maintain the following:
a. The structural parts of the building and other improvements, that are part of the leased premises which structural parts include the foundations, bearing and exterior walls, subflooring and roof.
b. The unexposed electrical, plumbing and sewage systems, including, without limitation, those portions of the systems lying outside the premises.
c. The Landlord shall have all snow and ice removed from the sidewalks leading to the premises as soon as practicable, and see that snow from the parking area is properly and reasonably removed and that all refuse and garbage is removed from the collection area.
d. The Landlord shall maintain the common areas, parking areas, hallways and stairs and restrooms, in a safe, clean and orderly condition.
8.2 T’ENANT’S REPAIRS AND MAINTENANCE. Tenant at its cost shall perform the following:
a. Any construction, modification and/or improvements made to the leased premise will be at the expense of the Tenant (unless otherwise agreed), and will require the approval of the Landlord. Any improvements or modifications performed by, or on behalf of, the Tenant will, at the option of the Landlord, remain as part of the Keuka Business Park at the conclusion of the lease term.
b. Except as provided in paragraph 8.1 above, Tenant at its cost shall maintain the leased premises, including all janitorial care of the office and restroom facilities associated with this space, and at the expiration of the term of this Lease Agreement, or prior termination, Tenant shall surrender the leased premises to Landlord in the same condition as received, normal wear and tear, damage from the elements, fire or other casualty, damage Landlord is required to repair hereunder, or damage from the negligence or willful misconduct of Landlord, its agents or employees, excepted.
c. Tenant also agrees to maintain outdoor areas affected by the operations of the business in an orderly fashion, including, but not limited to, stacking and disposal of pallets, trash and recycling areas, employee litter and damage to the facilities.
9. LIABILITY INSURANCE & INDEMNITY
9.1 Tenant shall at all times during the term hereof, at its own expense, maintain a commercial general liability insurance policy with a One Million Dollar ($1,000,000) combined single limit for any one (1) occurrence, insuring the Landlord and Tenant against all liability for damages to person or property in or about the Leased Premises. Tenant shall provide to Landlord a current Certificate of Insurance, with the Landlord listed as an additional insured.
9.2 Tenant shall indemnify and hold Landlord harmless against any and all claims and demands arising from the negligence of the Tenant, its officers, agents and/or employees, as well as those arising from Tenant’s failure to comply with any covenant of this Lease on its part to be performed, and shall at its own expense defend the Landlord against any and all suits or actions arising out of such negligence, or failure to comply, actual or alleged, and all appeals therefrom and shall satisfy and discharge any judgment which may be awarded against Landlord in any such suit or action.
9.3 Landlord shall maintain in effect at all times insurance against damage or loss to the leased premises. Insurance on tenant’s contents or business operation shall be the responsibility of the tenant.
9.4 Tenant covenants and agrees to pay Landlord an amount equal to the escalation in insurance premiums on the Landlord’s premises arising out of the occupancy of the Tenant.
10. WAIVER OF SUBROGATION
10.1. The Tenant agrees to waive their rights of recovery against the landlord that the Tenant may have for any loss or damage to the Tenant’s property including property the Tenant is responsible for covered under any property insurance contract. It further agreed that the Tenant shall send their insurance agent a copy of this lease to prevent any confusion should there be a loss.
11. DESTRUCTION AND/OR CONDEMNATION OF THE PREMISES
11.1 In case of the total or such partial loss of the Leased Premises through fire, other casualty and/or condemnation, as shall make it impracticable for Tenant’s use as set forth in Paragraph 4.1, this Lease may be terminated at the option of either party on written notice to the other, and in that case, Tenant shall not be liable for any rent after the date of Tenant’s removal from the Leased Premises.
11.2 If the Lease is not terminated pursuant to Paragraph 10.1, then the rent shall be equitably adjusted to reflect the portion of the Leased Premises that are no longer available for Tenant’s use.
12. ASSIGNMENT OR SUBLEASE
Tenant shall not have the right to assign this Lease or sublet the Leased Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld.
13. ACCESS TO LEASED PREMISES
Landlord shall have the right to enter the Leased Premises at all reasonable hours for the purpose of making any repairs, alterations, additions or improvements to the Leased Premises. All such repairs, alterations, additions and improvements shall be done in a manner so as not to unreasonably interfere with Tenant’s use of the Leased Premises. During the repair period, Tenant’s liability for rent and other sums payable by Tenant hereunder shall be reduced by that amount which bears the same ratio to said rent and such other sums as the area of the Leased Premises rendered unsuitable by such repair work for the normal operation of Tenant’s business bears to the entire area of the Leased Premises.
14. DEFAULT BY TENANT
14.1 The following shall be deemed a default by Tenant under the terms of the Lease (“Event of Default”):
a. The failure by Tenant to pay any rent or other sum of money due hereunder within ten (10) days after written notice from Landlord that such payment has not been made;
b. The failure by Tenant to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice from Landlord of such default, unless such default is of a nature that it cannot practicably be cured within a thirty (30) day period and Tenant is proceeding with due diligence to cure such default;
c. The making by Tenant of an assignment for the benefit of creditors;
d. The filing of a petition by or against Tenant for adjudication as a bankrupt under the Bankruptcy Act, as now or hereafter amended or supplemented, or for reorganization within the meaning of Chapter XI of the Bankruptcy Act, or the commencement of any action or proceeding for the dissolution or liquidation of Tenant, whether instituted by or against Tenant, or for the appointment of a receiver or trustee of the property of Tenant, provided that no such filing or proceeding instituted by a third party shall be regarded as a default hereunder if Tenant shall promptly move to have the same dismissed, rescinded or rendered inoperative and Tenant prosecutes such action with due diligence and continues to perform and discharge all of the covenants and obligations on its part to be performed or discharged under this Lease during the pendency of such proceedings.
14.2 Upon the occurrence of an Event of Default, Landlord shall have the immediate right of re-entry and possession of the Leased Premises, which right shall remain continuous until such time as Tenant shall have cured such Event of Default. Notwithstanding such re-entry and possession of the Leased Premises by Landlord, Tenant shall remain liable for the rent and other sums payable hereunder whether or not the Leased Premises are relet by Landlord an for all expenses which Landlord may incur in re-entering the Leased Premises and repairing and maintaining the same less such proceeds, if any, which may result from the reletting of the Leased Premises.
14.3 Additionally, upon the occurrence of any Event of Default, Landlord shall have the right to terminate this Lease by written notice of such intention to Tenant. In the event Landlord elects to terminate this Lease, Tenant’s liability for rent and other sums payable hereunder and to perform any other term, condition, covenant or agreement on its part to be performed under this Lease shall cease and terminate as to any period subsequent to the date on which Landlord delivers to Tenant written notice of such termination. Tenant shall remain liable, however, for all rent and the performance of all terms conditions and agreements relating to matters prior to the date of such termination.
14.4 Additionally, the parties agree that any default by the co-tenant, SenCer, Inc. can be treated by Landlord as a default by Tenant as though it was Tenant’s own default. Tenant will be given the opportunity to cure such default under the terms of this Agreement. Failure of Tenant to successfully cure said default shall give Landlord the right to implement any remedy authorized under the terms of this agreement.
15. REMEDIES CUMULATIVE
No mention in this Lease of any specific right or remedy shall preclude either party from exercising any other right or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity.
16. WAIVER
The failure of either party to insist in any one or more instances upon a strict performance of any covenant of this Lease or the waiver by either party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver or relinquishment of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, term or condition of this Lease shall be deemed to have been waived by either party unless waived by written instrument.
17. HOLDING OVER
Any holding over by Tenant, with Landlord’s written consent, after expiration of this Lease shall operate and be construed as a tenancy from month to month on the same terms, covenants, conditions, provisions and agreements contained in this Lease, except the monthly rent payment shall increase by 100%.
18. NOTICES
All notices as required by any of the terms and conditions of this Lease shall be deemed given when the notice is prepared, adequately addressed and deposited in the United States mail, postage prepaid. Notices to Landlord and Tenant are adequately addressed as follows:
| Landlord: | Finger Lakes Economic Development Center 0 Xxxxx Xxxxxxxx Xxxx, Xxxxx 000 Xxxx Xxx, XX 00000 | |
| Tenant: | 0 Xxxxx Xxxxxxxx Xxxx Xxxx Xxx, XX 00000 | |
19. MECHANICS’ LIENS
Tenant shall pay all costs for construction done by it or caused to be done by it in the leased premises as permitted by this Lease Agreement. Tenant shall keep the building, other improvements, and land of which the leased premises are a part free and clear of all mechanics’ liens resulting from construction done by or for Tenant. Tenant shall have the right to contest the correctness or the validity of any such lien, if immediately on demand by Landlord, Tenant procures and records a lien release bond issued by a corporation authorized to issue surety bonds in an amount equal to one and one-half times the amount of the claim of the lien.
20. ATTORNEYS’ FEES
If either party becomes a party to any litigation concerning this Lease Agreement, the leased premises, or the building or other improvements in which the leased premises are located, by reason of any act or omission of the other party or its authorized representatives, and not by any act or
omission of the party that becomes a party to that litigation or any act or omission of its authorized representatives, the party that causes the other party to become involved in the litigation shall be liable to that party for reasonable attorneys’ fees and court costs incurred by it in the litigation.
If either party commences an action against the other party arising out of or in connection with this Lease Agreement, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys’ fees and costs of suit.
21. SUCCESSORS AND ASSIGNS
This Lease and all its provisions shall be binding upon the heirs, administrators, executors, successors and assigns of the parties hereof.
IN WITNESS WHEREOF, the respective parties have executed this instrument as of the day and year first hereinabove written.
| LANDLORD: | ||||
| Finger Lakes Economic Development Center | ||||
| By: |
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| Name/Title/Date | ||||
| TENANT: Greencell, Inc. | ||||
| By: |
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| Name/Title/Date | ||||
