Exhibit 10.36
LEASE
THIS AGREEMENT, entered into this 8th day of August 1991 between Montbell
Associates, having its principal office at 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000, hereinafter referred to as Landlord; and H-Power Corp., 00
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 000000; hereinafter referred to as the Tenant.
WITNESSETH:
That the Landlord hereby demises unto the Tenant and the Tenant hereby
hires and takes from Landlord for the term and on the rental hereinafter
specified, the premises in the City of Belleville, County of Essex, State of New
Jersey, commonly known as 00 Xxxxxxxxxx Xxxxxx (0xx Xxxxx).
TO HAVE AND TO HOLD the Leased Premises, approximately 7,500 square feet,
unto Tenant, its successors and assigns, for the term of five (5) years,
commencing on the 1st day of September, 1991 (the "Commencement Date"), and end
at 8:00 pm, Eastern Standard Time, July 31, 1996 after said commencement, unless
this Lease shall be sooner terminated as hereinafter provided.
The term, Leased Premises, shall be defined as that section of the
building shown on Exhibit "A", which represents 4.75% of the total rentable
space of the complex of which the Leased Premises is a part.
1 ANNUAL RENT:
(a) Tenant agrees to pay to Landlord an annual rental as set forth in
Schedule "A". Said rent to be paid in equal monthly installments in advance on
the first day of each and every month.
(b) If Tenant moves into or takes possession of the Leased Premises prior
to the Commencement Date, It shall not pay a pro rata portion of the rent from
such time to the Commencement Date, the actual Commencement Date being unchanged
from that set forth above, provided Tenant shall provide Landlord with the first
month's rent and a certificate of insurance as set forth in Section 8 hereof.
2 TAXES:
(a) The Landlord agrees to pay the real estate taxes assessed against the
property for the calender year 1992, that being considered base period taxes. A
copy of the most recent tax xxxx is attached hereto.
(b) The parties agree that the Tenant shall pay all increases in the real
estate taxes assessed in excess of said base period. Landlord shall furnish
Tenant with a copy of the tax xxxx for proof of increase. The increase shall
then be due and payable as taxes are due and payable.
(c) Landlord and Tenant agree that Tenant's total share of the real estate
taxes shall be based on the Tenant's pro rata share of occupancy. Tenant's pro
rata share of occupancy is 4.75%.
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(d) Tenant further agrees to pay all other taxes levied against the Leased
Premises, special assessments, water and sewer charges and other charges levied
against the land and buildings which comprise the Leased Premises.
3 USE OF PREMISES:
Tenant shall use the Lease Premises for the development and manufacture of
fuel cell systems plus hydrogen generation, clean up and storage systems and for
no other purpose other than that connected with Its business.
4 MAINTENANCE AND OPERATION OF LEASED PREMISES:
Except as provided in section (f) below, Tenant agrees that Tenant, at its
expense will:
(a) Pay for all water, gas, fuel, and electricity used or consumed by It
in the Leased Premises directly to the public utility providing the same and
maintain in good working order all plumbing, electrical, heating, ventilating
and air conditioning systems. Landlord represents that all said utilities are
separately metered.
(b) The Tenant agrees to observe and comply with all laws, ordinances,
rules and regulations of the Federal, state, county and municipal authorities
applicable to the business to be conducted by the Tenant in the Leased Premises,
including the making of structural and non-structural alterations due to the
Tenant's occupancy. If any of such laws, ordinances, rules and regulations shall
require structural changes which would have been necessary irrespective of the
nature of the tenancy, then in such event, the same shall be complied with by
the Landlord. Tenant agrees not to do or permit to be done at any time during
the Term anything in the Leased Premises, or keep anything therein, which will
increase the rate of fire insurance premiums on the improvements or any part
thereof, or on the property kept therein, above the present rate.
(c) Operate and maintain in good condition the buildings and building
equipment installed on the Leased Premises by Landlord, making all necessary
interior repairs thereto, and repainting when necessary except as provided in
section 8, if the necessity therefor is caused by fire or other casualty.
(d) Replace all glass in windows and doors which may be broken or cracked
subsequent to the commencement of this Lease.
(e) Keep sidewalks, parking lots and driveways abutting the Leased
Premises in good and safe repair and free and clean from ice, snow and debris
within a ten (10) foot radius of the building.
(f) Landlord agrees to maintain and repair the roof and structural
portions of the building. Landlord shall commence such repairs as It deems
reasonably necessary within three (3) days written notice by Tenant that said
repairs are needed.
If such damage is the result of the negligence or willfull and wanton
misconduct of the Tenant, Landlord shall make such repairs as It deems
reasonably necessary and Tenant shall reimburse Landlord for Its time and
material to make such repairs.
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5 TENANT'S EQUIPMENT AND FIXTURES:
(a) Tenant at Its expense shall have the right to install, maintain, and
remove in, on or about the Leased Premises all such equipment, furniture and
fixtures as It deems necessary or desirable in connection with the operation of
Its business in the Leased Premises, all of which shall remain the property of
Tenant. Tenant shall pay the cost of repairing any damage to the building on the
Leased Premises occasioned by any such removal of Tenant's equipment by Tenant.
(b) If the Tenant shall not have removed all such equipment, furniture and
fixtures installed by It in the Leased Premises at the termination of this Lease
for any cause, Landlord shall have the right to remove the same and store the
same, and Tenant upon written demand shall pay to Landlord Its cost of removal,
restoration of any damage done to the building in connection therewith and
charges for storage. If Tenant shall not take delivery of the same and pay such
costs, including storage costs, for the period of 15 days after any such
expiration or other termination of this Lease, then Landlord may sell the same
at public or private sale and apply the net proceeds of said sale to its
aforesaid costs, including reasonable attorneys' fees paying over to Tenant any
net proceeds remaining after payment of same.
6 INTERIOR ALTERATIONS BY TENANT AND LANDLORD'S ALTERATIONS:
Tenant, at Its expense, may make alterations and additions to the interior
of the Leased Premises which It deems necessary or desirable in connection with
the operation of Its business therein; provided however, that no changes shall
be made in the electric, plumbing, air conditioning or heating systems which
will cause an overloading of such systems or of the sewage outlets to the city
sewers or septic or other sanitary system installed on the Leased Premises or
necessitate any additions to the heating system. All such alterations shall be
made in accordance with the requirements of the building code of the
municipality in which the Leased Premises are located and other governmental
authorities having jurisdiction and, to the extent applicable, with the
regulations of the Board of Fire Underwriters. Tenant shall not permit any
mechanics' or other liens to stand against the property of which the Leased
Premises is a part for work or material furnished to Tenant, provided that
Tenant shall not be in default pursuant to this provision so long as It is
contesting the validity thereof by appropriate legal action diligently pursued
and an appropriate surety bond is posted.
Nothing herein contained shall be construed as a consent on the part of
the Landlord to subject the Landlord's property to liability under the
mechanic's lien law of the State of New Jersey, or any lien law or any lien or
charge whatsoever.
No structural changes shall be made by Tenant without the written consent
of the Landlord, which consent shall not be unreasonably withheld. Landlord
hereby approves of attached plan detailing Tenant's proposed improvements.
7 ASSIGNMENT:
The Tenant shall not sublet the Leased Premises or any portion thereof, or
assign this Lease without the prior written consent of the Landlord, which
consent shall not be unreasonably withheld.
In the event that the Landlord shall consent to an assignment or
subletting or an assignment or subletting shall take place because the Landlord
has not consented within 15 days, then all rents
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in excess of those payments due from Tenant to Landlord pursuant to this Lease
shall be paid to Landlord as Additional Rent. On demand, any assignee or
subtenant shall make payments directly to Landlord.
8 FIRE AND OTHER CASUALTIES:
(a) Tenant at Its expense, throughout the term of this Lease and for the
mutual benefit of the Landlord and Tenant, shall maintain general liability
insurance against claims for bodily injury or death and property damage
occurring upon, in or about the Leased Premises, affording protection to a limit
of not less than $1,000,000.00 Combined Single Limit Per Accident or Occurrence.
(b) The insurance provided for in this section shall be affected under
valid and enforceable policies issued by insurers of recognized responsibility
and acceptable to Landlord and Landlord's mortgagee, and such policies shall
name Landlord and Tenant as the assureds as their respective interests may
appear. The Landlord shall be named as an additional insured under all insurance
policies required herein.
(c) Tenant shall furnish Landlord, upon written request from Landlord,
from time to time certificates evidencing the policies of insurance required by
It pursuant to this section and shall deliver certified copies of such policies
to Landlord's mortgagee if required by it.
(d) If the Leased Premises is totally destroyed by fire or other casualty
or is damaged by fire or other casualty to the extent of 50% or more, this Lease
at the Landlord's or Tenant's option shall terminate; in the event of such
termination, Tenant shall have six (6) months to procure other reasonably
suitable quarters and any unearned rent paid or credited in advance shall be
refunded. If so terminated, Landlord shall be entitled to the insurance proceeds
collectible by reason of such damage or destruction. If not so terminated, then
the Landlord forthwith and with due diligence shall repair and restore such
buildings to their condition immediately prior to such damage and the rent shall
be abated proportionately during the period of restoration.
(e) The Tenant shall reimburse Landlord for the amount any increase in
premiums over base year 1991 (at its pro rata share of 4.75%) for fire, extended
coverage, and Landlord's liability coverage including flood insurance, if any,
consistent with its current insurance policy covering the complex of which the
Leased Premises is a part, and which is attached hereto as an exhibit.
9 UNAVAILABILITY OF FIRE INSURANCE:
If, because of Tenant's occupancy, it shall be impossible to obtain fire
insurance on the buildings and improvements on the Leased Premises in an amount
and in the form and in fire insurance companies licensed in the State of New
Jersey, then after providing Tenant with written notice that such insurance is
unattainable, Tenant shall have fifteen (15) days to procure such insurance
policy's reasonably acceptable to the Landlord. In the event Tenant fails to
obtain such insurance within said 15 day term the Landlord may, if Landlord so
elects, at any time thereafter, terminate Lease and the term thereof on giving
the Tenant thirty (30) days written notice of Landlord's intention to do so,
and, upon giving such notice, this Lease and the Term thereof shall terminate
and come to an end.
If any of the policies of insurance that are provided to be obtained and
maintained by Tenant or Landlord cannot be obtained and/or kept in force because
of Tenant's use of the Leased Premises,
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and Tenant shall fail to commence to cure, remedy and correct the condition
which makes it impossible to obtain and keep in force said policies within
thirty (30) days after written notice given by Landlord to Tenant, and Tenant
fails, neglects or refuses to proceed diligently to cure such condition,
Landlord may terminate this Lease by giving at least thirty (30) days notice of
such termination to Tenant, and this Lease shall terminate at the expiration of
said thirty (30) days with the same force and affect as if that were the
original expiration date thereof, and Tenant shall be and remain liable to
Landlord for all damages and losses suffered by it in the same manner as if this
Lease were terminated for any other default of Tenant. In lieu of exercising
such right of termination, Landlord may, at its option, obtain such policies at
regular or increased rates and pay the premiums thereof and Tenant shall
reimburse Landlord for the amount of such premium upon demand, and if not paid,
the amount thereof, together with interest at two (2%) percent per month, shall
be added to the amount of the next month's rent as additional rent.
If, due to the Tenant's use of the Leased premises, the insurance rates
are increased on the entire building, contents and liability, the Tenant shall
reimburse the increased cost to the Landlord and other tenants for their
increased cost. Landlord, on request of Tenant, shall provide the Tenant with
any insurance documentation which pertains to rate changes.
10 NON-LIABILITY OF LANDLORD LANDLORD INDEMNITY:
(a) The Landlord shall not be responsible for the loss of or damage to
property for any cause whatsoever including, but not limited to, water damage,
or injury to persons, including Tenant, occurring in or about the Leased
Premises by reason of any existing or future condition, defect, matter or thing
in the Leased Premises or for the acts, Commissions or negligence of other
persons or tenants in and about the Leased Premises. The Tenant agrees to
indemnify and save the Landlord harmless from all claims and liability for loss
of or damage to property, or injuries to persons occurring in or about the
Leased Premises due to the negligent acts or Commissions of Tenant, Its
servants, agents, employees or invitees. Tenant's obligations pursuant to this
Section 10(a) shall be satisfied provided that it obtains insurance as set forth
in Section 8.
11 SURRENDER:
At the expiration or termination of this Lease, Tenant shall surrender
immediate possession of the Leased Premises, together with all alterations,
improvements and additions thereto made by Tenant as permitted hereby, to
Landlord in broom clean and as good condition as when delivered, reasonable wear
and tear excepted. Provided Landlord delivers notice to Tenant thirty (30) days
prior to expiration of the term, Tenant shall remove, in a good and workmanlike
manner, any alterations, improvements or additions.
12 HOLDING OVER:
Any holding over by Tenant after the expiration of the Term of this Lease
shall not operate except by written agreement to extend or renew this Lease or
to imply or create a new Lease, but in such case, Landlord's rights shall be
limited to either immediate termination of Tenant's occupancy or the treatment
of the Tenant's occupancy as a month-to-month tenancy, then the Tenant shall pay
fixed monthly rental of DOUBLE the Lease rental charged during the final month
of the Lease in addition to other charges set forth in this Lease only if the
Tenant remains without the written
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consent of the Landlord and only if such holding over jeopardizes the Landlord's
ability to procure another Tenant.
13 QUIET ENJOYMENT:
Landlord agrees that the Tenant, upon paying the rent and keeping the
agreements of this Lease on Its part to be kept and performed, shall have
peaceable and uninterrupted possession of the Leased Premises during the term of
this Lease.
14 REMEDIES ON DEFAULT:
This Lease and the term thereof are subject to limitation that if at any
time during such term any one or more of the following events (herein called an
"Event of Default") shall occur:
(a) If Tenant makes an assignment for the benefit of creditors; or
(b) If a decree or other order by a court having jurisdiction shall have
been entered adjucating the Tenant a bankrupt or insolvent, or approving a
properly filed petition seeking, under the Federal Bankruptcy Laws or any other
similar applicable Federal or State Law, the reorganization of Tenant or the
composition, extension or arrangement of the liabilities of Tenant, and such
decree or order continues undischarged for thirty days; or if a decree or order
by the court for the appointment of a receiver or trustee or assignee in
bankruptcy or insolvency of Tenant or of substantially all of Its properties
shall have been entered and such decree or other order shall have remained in
force undischarged for ninety days; or
(c) If Tenant institutes proceedings for a decree or order of the kind
mentioned in subsection (b) or files a consent to any such decree mentioned in
subsection (b); or if Tenant admits in writing to Its inability to pay Its debts
as they become due; or
(d) If Tenant assigns, mortgages or encumbers this Lease, except with the
prior written consent of the Landlord, or sublets the whole or any portion
thereof, except as permitted pursuant to the provisions of this Lease, or if
this Lease shall be transferred or pass to any person, firm or corporation by
operation of law;
(e) If Tenant fails to pay any installment of rent by the fifteenth day
after receipt of written notice from the Landlord; or
(f) If Tenant fails to Pay any other sum required to be paid by Tenant
hereunder and such failure shall continue for the period of five days after
receipt of notice from the Landlord; or
(g) If Tenant fails to perform or observe any other requirements of this
Lease not hereinbefore in this section specifically referred to and such failure
continues for forty five days after receipt of notice thereof from Landlord and
if Tenant fails to commence the performance or observance of such other
requirement within said forty five days and to diligently proceed therewith;
then, upon the happening of any one or more of such Events of Default,
Landlord, at its election, without demand or notice and without declaring said
term ended, if it so elects, may re-enter the Leased Premises, either with or
without occupying the same again and may repossess and enjoy the Leased
Premises, without the termination of said term (if Landlord elects not to
terminate
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the same) or such reentry working a forfeiture of the rents to be paid by Tenant
or the agreements to be performed by Tenant during the balance of the term of
this Lease. The commencement of a proceeding or suit in forcible entry and
detainer, or in ejectment, or other action of recovery of possession of the
Leased Premises after default by Tenant, Landlord shall relet the Leased
Premises at the highest rental reasonably obtainable, the Tenant shall remain
liable for and pay to the Landlord for the remainder of the term of this Lease,
upon each rent day specified for the payment of the monthly installments of the
fixed annual rent, the difference between the rent collected by Landlord for
reletting the Leased Premises, after deducting therefrom expenses of preparing
Leased Premises for renting, brokerage commissions and legal fees in connection
therewith, and the fixed annual rent hereinabove reserved for the balance of the
term of this Lease or at the option of the Landlord the rent due for the
remainder of the term together with all expenses and commissions incurred by
Landlord.
15 SUBORDINATE TO MORTGAGES AND DEEDS OF TRUST:
This Lease is subject and is hereby subordinated to all present and future
mortgages, deeds of trust or encumbrances affecting the Leased Premises. The
Tenant agrees to execute such instruments which may be deemed necessary or
desirable by the Landlord to further affect the subordination of this Lease to
any such mortgage, deed of trust or encumbrance. Landlord covenants that it
shall not permit any default under said mortgage and that in the event of such
default, Tenant shall have the right to cure the same and deduct the cost of
curing such default from the rent due hereunder.
16 NET LEASE:
This is a "Net" Lease and the Landlord shall not be required to provide
any services or maintenance contracts do any act in connection with the Leased
Premises, except as expressly provided herein including but not limited to
furnishing heat, water and power and Landlord shall not be liable for any
failure of any supply or electric current or of any service by any utility, nor
for injury or damage to person (including death) or property caused by or
resulting from steam, gas, electricity, water, rain or snow which may be or leak
from any part of the Leased Premises, or from any pipes, appliances or plumbing
works of the same, or from interference with light or other appurtenances,
hereditaments or easements, however caused, and the rent reserved hereunder
shall be paid to Landlord without any claim on the part of the Tenant for
dimunition or abatement except as expressly provided herein, and the fact that
the Tenants use and occupancy of the Leased Premises shall be disturbed or
prevented from any cause whatsoever shall not in any way suspend, xxxxx or
reduce the rentals to be paid hereunder.
17 CONDEMNATION OR EMINENT DOMAIN:
If the entire property or any substantial part thereof wherein the Leased
Premises are located shall be taken by public or quasi-public authority under
any power of eminent domain or condemnation, or in the event of a conveyance in
lieu thereof, this Lease shall terminate upon the actual possession by the
condemning authority and the Tenant may pursue Its own claim against the
condemning authority so long as said claim does not interfere with the
Landlord's award.
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18 RENT SECURITY:
To secure the covenants and promises of the Tenant contained herein the
Tenant herewith deposits (on signing of this Lease) the sum of $5,625.00 said
sum shall be returned to the Tenant at the expiration of the term hereof,
without interest, provided the Tenant has performed in accordance with the terms
hereof. In the event repairs are necessary, beyond ordinary wear and tear, then
said sum or a portion thereof, may be used by the Landlord to make such repairs
and the balance remaining shall be returned to the Tenant provided that Landlord
shall not otherwise be obligated to make such repairs as otherwise set forth in
Section 4(b) of this Lease. The security deposited herein shall not be
mortgaged, assigned or encumbered by the Tenant without the written consent of
the Landlord. If Landlord applies any part of said sum to cure any default of
Tenant, Tenant shall, upon demand, deposit with Landlord the amount so applied
so that the Landlord may have the full deposit on hand at all times during the
term of the Lease provided that Landlord gives reasonable written notice to the
Tenant. Tenant hereby waives any future law or laws which may require the
Landlord to segregate the aforementioned security or pay interest on said
security deposit. In addition to the security deposit upon signing of this
agreement the Tenant deposits with the Landlord a sum equal to the first month's
rent which shall be held by the Landlord and shall be applied toward the rent to
be paid in accordance with this Lease.
19 NOTICES:
All notices hereunder shall be in writing and sent by hand or fax
confirmed by United States certified mail, postage prepaid:
(a) If to Landlord at 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(b) If to Tenant at the Leased Premises, or in either case, at such other
address as either party by written notice to the other party shall furnish.
20 SIGNS:
No signs shall be affixed to or placed upon any exterior part of the
Leased Premises by Tenant, except in such manner and of such size, design and
color as shall be in conformity with all applicable laws and approved in advance
by Landlord in writing, which consent shall not be unreasonably withheld or
delayed.
21 INTEREST ON DEFAULT:
(a) In the event Tenant fails to make any payment of Rent ten (10) days
after written notice that it is due, or fails within ten (10) days after notice,
to take any other action required of it under this Lease, TIME BEING OF THE
ESSENCE, which action is then taken by Landlord, Tenant shall pay to Landlord as
Additional Rent the greater of (i) 5% of the amount of Rent or monies expended
by Landlord to cure any such default of the Tenant, or (ii) $500.00, which sum
is deemed reasonable by the parties to compensate the Landlord for additional
costs and not as a penalty.
(b) In the event the Tenant fails to pay Rent when due, or fails, after
notice, to take any action required of It under this Lease, which action is then
taken by Landlord, Tenant shall pay to Landlord interests at the rate of two
(2%) per cent per month, or the then highest amount allowed by law, on Rent or
monies expended by the Landlord to cure any default of the Tenant, said interest
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to run from the date same becomes due from Tenant until the date of payment. No
interest shall be due provided Rent is paid on or before the tenth day after it
is due.
22 FINANCIAL STATEMENTS:
After the first anniversary of the commencement date of the term, Tenant
shall, if required by Landlord's mortgagee or any future mortgagee, or
prospective purchaser, submit, without cost to the Landlord, Tenant's financial
statement. Tenant shall also, without cost to Landlord, submit to any
prospective mortgagee or purchaser such statements as it may have, as and when
required by Landlord or Landlord's mortgagee, or prospective mortgagee or
prospective purchaser.
23 RESERVATION OF TITLE:
Tenant may not consent to the reservation of any title to property by any
conditional vendor to any property which may be affixed to the Leased Premises
so as to become a part thereof (excluding trade fixtures and trade machinery and
equipment used in Tenant's business), wholly or in any portion, without material
injury to the Leased Premises. Landlord hereby states that the reservation of
any such title by any conditional vendor or similar party shall be null and
void.
24 CERTIFICATE OF OCCUPANCY:
If required, Landlord shall obtain a Certificate of Occupancy permitting
the use of the Leased Premises by Tenant in accordance with the terms of this
Lease, provided that Tenant shall cooperate fully with the Landlord in obtaining
said Certificate of Occupancy.
25 LANDLORD'S COVENANTS AND REPRESENTATIONS:
Landlord covenants, represents and warrants that:
(a) Landlord has title to the Leased Premises and has the full right and
power to execute and perform this Lease and to grant the estate demised herein,
and that Tenant, on payment of the rent herein reserved and performing the
covenants and agreements hereof, shall peaceably and quietly have, hold and
enjoy the Leased Premises and all rights, appurtenances and privileges belonging
or in anywise appertaining thereto during the Lease term without molestation or
hindrances of any persons whomsoever.
(b) The Leased Premises complies with all zoning requirements and is free
of any known building fire or other violations.
(c) At the commencement of the term, the Leased Premises will be in a good
state of repair, and all heating, ventilating and air-conditioning systems, as
well as plumbing and electrical systems, shall be in good working order.
(d) Landlord agrees to perform improvements as per Schedule "B" prior to
the commencement of the term.
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26 LEASE PROVISIONS NOT EXCLUSIVE:
The rights and remedies of the Landlord contained in this Lease are not
intended to be exclusive but as additional to all other rights and remedies the
Landlord would otherwise have by law.
27 DELIVERY OF LEASE:
No rights are to conferred upon the Tenant except that Tenant shall have
the right to store equipment within the Leased Premises until this Lease has
been signed by the Landlord and an executed copy of the Lease has been delivered
to the Tenant.
28 ENTIRE AGREEMENT:
This Lease contains all agreements between the parties hereto. No
representatives or agent of Landlord or Tenant's authorized to make any
representations or alter or modify this Lease or any of the options in this
Lease contained and provided for in any way. Any additions, alterations,
changes, or modifications to or in this Lease or any agreements hereafter made
or conditions created, to be binding upon the parties hereto, must be in writing
and signed by said parties, and it is agreed that none of the provisions of this
Lease, including this provision, can be waived, except by writing duly signed by
the parties hereto.
29 RIGHT TO INSPECT AND EXHIBIT:
The Landlord, or its agent, shall have the right to enter the Leased
Premises at reasonable hours, given reasonable notice to the Tenant in the day,
and at night in the case of an emergency, to examine the same, or to make such
repairs, additions or alterations as it shall deem necessary for safety,
preservation or restoration of the improvements, or the safety or convenience of
the occupants or users thereof (there being no obligation however, unless
expressly set forth herein, on the part of the Landlord to make any such
repairs, additions or alterations), or to exhibit the same to prospective
purchasers, and to put upon the Leased Premises a suitable "For Sale" or "To
Let" sign for six (6) months prior to the end of this Lease. For six (6) months
prior to the expiration of the Term, the Landlord, or its agents, may similarly
exhibit the Leased Premises to prospective tenants.
30 BENEFITS OF LEASE:
This Lease shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns, subject however, as to Tenant to the
provisions of Section 7 of this Lease.
31 TABLE OF CONTENTS AND CAPTIONS:
The Table of Contents and Captions in this Lease are inserted only as a
matter of convenience and in no way to define, amplify, limit or describe the
scope or intent of this Lease, or the terms, conditions and provisions hereof,
nor as affecting the meaning of the text of any article or section hereof in any
way.
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32 ACCORD AND SATISFACTION:
No payment by Tenant or receipt by Landlord of lesser amount than the rent
stipulated in this Lease shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent to be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
the Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease or by law.
33 CONSENTS TO DEFAULTS:
No consent or waiver, express or implied, by the Landlord, to or of any
breach or default in the performance by the Tenant of Tenant's obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in performance by Tenant hereunder. Failure on the part
of the Landlord to complain of any act or failure to act of the Tenant or to
declare the Tenant in default, irrespective of how long such act or failure
continues, shall not constitute a waiver by the Landlord or its rights
hereunder.
34 DATE OF POSSESSION: OMITTED BY INTENTION
35 MUTUAL WAIVER OF SUBROGATION:
It is covenanted and agreed by and between the Parties hereto that the
Tenant shall relieve the Landlord of all liability or loss or damage to the
Tenant's property, whether real or personal, caused by fire and/or perils
covered in a standard form fire insurance policy with extended coverage, due to
any acts of commission or ommission of Landlord; and Landlord shall relieve the
Tenant of all liability for loss or damage to Landlord's property, whether real
or personal, caused by fire and/or the perils covered in a standard form fire
insurance policy with extended coverage due to any acts of commission or
ommission of Tenant.
36 ENVIRONMENTAL LAWS:
(a) If Tenant receives any notice ("Notice") of the happening of any event
involving the use, spill, discharge or clean-up of any hazardous or toxic
substances or waste, or any oil or pesticide on or about the Leased Premises or
into the sewer and/or waste treatment system operated by the Landlord or any
utility (any such event is hereinafter referred to as a "Hazardous Discharge")
from any person or entity, including the New Jersey Department of Environmental
Protection ("DEP") and Environmental Protection Agency ("EPA"), which Notice is
caused by Tenant's occupancy of the Leased Premises (or any assignee or
sub-tenants use of the Leased Premises), then the Tenant shall give immediate
written notice of same to Landlord, detailing all relevant facts and
circumstances. Tenant's SIC number is __________.
(b) Without limitation to the forgoing, the Landlord shall have the
option, but shall not be obligated, to exercise any of its rights as provided
herein immediately upon Tenant's failure to comply in full with any of the terms
of this Section or Landlord's receipt of any notice from any person or entity
asserting the happening of a Hazardous Discharge and Landlord may take such
action as it deems necessary or advisable to remedy. Tenant's failure to
clean-up, remove or minimize the impact of any such Hazardous Discharge, and all
costs and expenses incurred by the
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Landlord in the exercise of any such rights shall be paid to the Landlord by
Tenant, on demand, all as additional rent.
(c) The occurrence of any of the following events shall constitute an
Event of Default under this Lease:
1. If the Landlord receives its first of a Hazardous Discharge other than
from the Tenant, and the Landlord does not receive a notice (which may be given
in oral or written form, provided same is following with all due dispatch by
written notice given by certified mail, return receipt requested) of such
Hazardous Discharge from Tenant within seventy-two (72) hours of the time Tenant
received said first notice from any governmental agency having jurisdiction.
2. If the DEP, EPA or any other state or federal agency asserts or creates
a first lien upon any or all of the Leased Premises by reason of the occurrence
of a Hazardous Discharge; or
3. If the DEP, EPA or any other state or federal agency asserts a claim
against the Tenant or the Landlord for damages or clean-up costs related to a
Hazardous Discharge. Provided, however, such claim shall not constitute a
default if, within five (5) days of the occurrence giving rise to the claims:
A. The Tenant can prove to the Landlord's satisfaction that Tenant has
commenced and is diligently pursuing either (i) cure or correction of the event
which constitutes the basis for the claim, and continues diligently to pursue
such cure or correction to completion; or (ii) proceedings for an injunction, a
restraining order or other appropriate emergent relief preventing such agency or
agencies from asserting such claim, which relief is granted within ten (10) days
of the occurrence giving rise to the claim and the emergent relief is not
thereafter dissolved or reversed on appeal; and
B. In either of the foregoing events, the Tenant has posted a bond, letter
of credit or other security satisfactory in form, substance and amount to the
Landlord and the agency or entity asserting the claim to secure the proper and
complete cure or correction of the event which constitutes the basis for the
claim.
(d) If the Tenant's operations on the Leased Premises now or hereafter
constitute an "Industrial Establishment" subject to the requirements of the New
Jersey Environmental Cleanup Act, N.J.S.A. 13:1k-6 et. seq., and the regulations
pertaining thereto, N.J.A.C. 7:1-3.1 et seq. ("ECRA"), prior to the expiration
or sooner termination of this Lease, Tenant shall comply with all requirements
of ECRA pertaining to an Industrial Establishment closing operations at Its sole
cost and expense to the satisfaction of the DEP and the Landlord. Without
limitation to the foregoing, the Tenant's obligations shall include (i) the
proper filing of the initial notice to the DEP's and the Landlord's satisfaction
of all soil, ground, water and surface water sampling and tests required, by
N.J.A.C. 7:1-37. (ii) the performance to the DEP's and the Landlord's
satisfaction of all soil, ground, water, and surface water sampling tests
required by N.J.A.C. 7:1-3,9. and (iii) the filing of a "negative declaration"
with DEP under N.J.A.C. 7:1-3.12. The Tenant shall immediately provide Landlord
with copies of all correspondence, reports, notices, orders, findings,
declarations and other materials pertinent to Tenant's compliance and DEP's
requirements under ECRA as they are issued or received by the Tenant.
(e) The Tenant hereby agrees to defend (with counsel satisfactory to
Landlord), to indemnify and hold the Landlord harmless from and against any and
all claims, losses, liabilities,
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damage (be they, without limitation, by clean-up costs and reasonable attorney
fees arising by reason of any of the aforesaid or an action against the Tenant
and/or Landlord under this indemnity) arising directly or indirectly from, out
of or by reason of Tenant's failure to comply in full with any of the terms of
this Section 37 or any Hazardous Discharge occurring during the period of this
Lease and any other period of possession of the Leased Premises by the Tenant.
(f) This section shall survive the expiration or sooner termination of
this Lease.
37 INTERPRETATION:
The laws of the State of New Jersey shall govern the validity, performance
and enforcement of this Lease. The invalidity or unenforceability of any
provision hereof shall not affect or impair any other provision.
38 CONSENTS:
Landlord shall not unreasonably withhold or delay its consents to any act
or matter which, pursuant to this Lease, requires its consent.
39 NEGOTIATED LEASE:
This is a negotiated Lease. This Lease shall not be construed against the
Landlord by reason of it being prepared by Landlord, Landlord's agents or
Landlord's attorney's.
40 PROCESSING CHARGE: OMITTED BY INTENTION
41 RIGHT OF FIRST REFUSAL: OMITTED BY INTENTION
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
WITNESS:
by: /s/ Xxxxxx X. Xxxxxxx
----------------------- ---------------------
XXXXXX X. XXXXXXX
MONTBELL ASSOCIATES
Landlord
ATTEST:
by: /s/ Xxxxxx X. Xxxxxx
----------------------- ---------------------
XXXXXX X. XXXXXX
H-POWER CORP.
Tenant
SCHEDULE "A"
RENTAL SCHEDULE
DATE PER SQ. FT. ANNUAL MONTHLY
09/01/91 TO 12/31/91 $1.60 $12,000.00 $1,000.00
01/01/92 TO 07/31/92 4.00 30,000.00 2,500.00
08/01/92 TO 07/31/93 4.25 31,875.00 2,656.25
08/01/93 TO 07/31/94 4.50 33,750.00 2,812.50
08/01/94 TO 07/31/95 4.75 35,625.00 2,968.75
08/01/95 TO 07/31/96 5.00 37,500.00 3,125.00
SCHEDULE "B"
Landlord agrees to perform the following before the commencement of this
Lease.
1. All existing lighting will be in working order.
2. All mechanical shall be in working order.
3. Take out the existing conveyor and put in a staircase leading to the
second floor.
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