MECHANICAL TECHNOLOGY INCORPORATED/PLUG POWER, L.L.C.
LEASE FOR BUILDING 3
THIS AGREEMENT made this 10th day of June, 1998, between Mechanical
Technology, Incorporated, a New York corporation, as Landlord, and Plug Power,
L.L.C., a Delaware Limited Liability company, as Tenant.
WITNESSETH: The Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord the building (the "Building") known as Xxxxxxxx 0, 000
Xxxxxx-Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx (the "Premises") and more fully described
on the floor plan designated as Exhibit "A" attached hereto, for the term of
ten (10) years, to commence on the first day of October, 1998, and to end on the
30th day of September, 2008, unless terminated earlier, as provided below
("Term") with an option for Tenant to extend the lease for an additional five
(5) years, to commence on the first day of October, 2008, and to end on the
30th day of September, 2013 ("Option Term").
1. RENT. Tenant shall pay the annual rent equal to $4.00 per square
foot ("Rent") commencing October 1, 1998 for each year during the Term. Such
annual rent shall be made in equal monthly installments of $17,690 in advance on
or before the first day of each and every month during the Term.
Tenant shall have the option to extend the lease for an additional five
years at the end of the Term. Tenant shall pay an annual rent equal to seventy
percent (70%) of the Then-Current Fair Market Rent (as defined below) for
similar properties commencing October 1, 2008 for each year during the Option
Term. Such annual rent shall be made in equal monthly installments in advance
on or before the first day of each and every month during the Option Term.
The Then-Current Fair Market Rent shall be determined by a qualified real estate
professional ("Agent") agreed to by Landlord and Tenant. If Landlord and Tenant
cannot agree upon an Agent, then each of Landlord and Tenant shall select an
Agent, each Agent shall prepare a report justifying their proposed rental rate,
and the Then-Current Fair Market Rent shall become the average of the two fair
market rental rates proposed.
All rent shall be on a triple net basis such that this Lease shall
yield to Landlord the full amount of the installments thereof throughout the
Term and the Option Term, if applicable, without deduction. Tenant shall be
responsible for payment of (1) the total number of square feet in Building 3,
divided by the total number of square feet of all MTI buildings ("Occupancy
Ratio") multiplied by the total property, school and other taxes payable with
respect to the buildings (less any taxes or assessment only related to the value
of the land owned by Landlord) provided, however, that if Building 3 is
reassessed (either individually or as a part of the property), such that the
total tax burden increases then, Landlord, at its option, may have the building
appraised, at its expense, and then Tenant shall be responsible for payment of
the appraisal value of Building 3 divided by the appraisal value of all MTI
buildings multiplied by the then-current assessed value of the buildings; (2)
the property, school and other taxes allocated to four acres of land; (3) the
Occupancy Ratio multiplied by the sewer and water charges due or payable in
connection with the land and buildings on the MTI property; (4) all costs for
liability insurance, fire insurance, heat, air-conditioning, gas, electricity,
oil, maintenance and interior repair, janitorial services, garbage collection,
fire extinguishers, sprinkler system, building security and window cleaning of
the Premises (excluding structural defects to the roof and exterior structure
of the Building). All rent shall be paid to Landlord without notice, demand,
counterclaim, setoff, deduction or defense, and nothing shall suspend, defer,
diminish, xxxxx or reduce any rent, except as otherwise specifically provided
in this Lease.
2. LANDLORD DUTIES. Landlord at its sole cost and expense shall be
responsible for the following: cleaning and maintenance of common areas, snow
removal, cleaning and maintenance of roadway, walks, and parking areas and the
care and maintenance of landscaping and grounds. As used in this Lease, the
term "common areas" means driveways, walkways, trash facilities, and all other
areas and facilities that are provided and designated from time to time by
Landlord for the general nonexclusive use and convenience of Tenant with
Landlord and other Tenants and their respective employees, invitees, licensees,
or other visitors. Landlord grants Tenant, its employees, invitees, licensees
and other visitors a nonexclusive license for the Term to use the common areas
in common with others entitled to use the common areas, subject to the terms
and conditions of this Lease. Without advance written notice to Tenant, and
without any liability to Tenant in any respect, provided Landlord will take no
action permitted under this paragraph in such a manner as to materially impair
or adversely affect Tenant's substantial benefit and enjoyment of the Premises,
Landlord will have the right to:
1) Temporarily close any of the common areas for
maintenance, alteration or improvement purposes; and
2) Change the size, use, shape or nature of any such
common areas, so long as it does not materially interfere
or adversely impact Tenant's business.
Landlord, at its sole cost and expense, shall be responsible for the care and
maintenance of 1) the exterior of the building and 2) the roof, plumbing and
electricity on the non-laboratory side of the fire wall. Provided, however,
that Landlord shall not be responsible for any maintenance that is due to the
negligence or neglect of Tenant.
3. OBLIGATION OF LANDLORD REGARDING IMPROVEMENTS. Landlord shall
have the following obligations with respect to alterations and improvements of
the Premises that are necessary to the operation of Tenant's business.
(a) Landlord shall provide to Tenant the amount of $2,000,000
as a "Tenant Improvement Allowance" which shall be drawn down by Landlord from
an XXX facility, as needed to reimburse Tenant for alterations and improvements
to the Premises in a manner as more fully set forth below.
(b) Landlord acknowledges that Tenant has heretofore made
certain alterations and improvements to the Premises that are necessary to the
operation of Tenant's business, and that Tenant has paid the amount of
approximately $800,000 to make such alterations and improvements and Tenant
shall continue to make alterations and improvements to the property. Landlord
agrees to reimburse or advance such funds to Tenant out of the Tenant
Improvements Allowance for such alterations and improvements on or before the
first to occur of i) funding of Landlord's XXX financing ("Lender") for the
project; ii) cash flow need by Tenant as determined by Tenant in its sole
discretion, after July 15, 1998, or iii) August 15, 1998.
(c) Landlord further agrees to reimburse or advance such funds
to Tenant out of the Tenant Improvements Allowance for additional alterations
and improvements to the Premises that are necessary to the operation of Tenant's
business and acceptable to Tenant on or before March 31, 1999 or such later date
as may be approved by Tenant. Tenant shall be solely responsible for
determining what alterations and improvements it deems necessary to the
operation of its business and shall be solely responsible for arranging such
alterations and improvements, including the hiring of appropriate contractors to
perform the work. With respect to of any aspect of such work, Tenant shall have
its architect or builder prepare a requisition in the form required by the AIA
form ("Requisition") and such other documentation as required by Landlord's
Lender to Landlord, and Landlord shall reimburse Tenant upon funding to Landlord
by its Lender for the work. All reimbursements shall be made within 10 business
days of approval of the Requisition by Lender. The parties acknowledge and agree
that Landlord's total financial responsibility for all alterations and
improvements relating specifically to Tenant's business shall not exceed the
amount of $2,000,000, which amount includes the reimbursement amount of $800,000
or such larger amount provided for in subsection (a) above.
(d) Tenant shall be entitled to offset any unreimbursed amount
against the rent due under this Lease if any invoiced amount is funded by Lender
and not paid by Landlord to Tenant within 10 business days of such invoice.
Offset is not Tenant's exclusive remedy.
(e) Landlord shall assist Tenant in obtain any permits,
authorizations, certificates of occupancy, or related documentation necessary
for the completion and/or final approval of any alterations and improvements
made by Tenant to the Premises as provided herein.
4. OCCUPANCY. Tenant shall use and occupy the Premises for no purpose
other than the conduct of Tenant's business.
5. PARKING. Landlord and Tenant shall cooperate to assure that
sufficient parking is available to Tenant, at Landlord's cost. Tenant will be
entitled to use the parking spaces around the Building in common with other
Tenants during the Term subject to the rules and regulations set forth herein,
and any amendments or additions to them. The Tenant uses the parking spaces at
its own risk, and the Landlord will not be liable for loss or damage to any
vehicle or any contents of such vehicle or accessories to any such vehicle, or
any property left in any of the parking areas.
6. REQUIREMENTS OF LAW. Tenant shall promptly execute and comply with
all statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and City Government and of any and all their departments and
bureaus applicable to Tenant's particular use of the Premises, for the
correction, prevention, and abatement of nuisances or other grievances, in,
upon, or connected with the Premises during the Term and the Option Term.
7. TENANT ALTERATIONS AND IMPROVEMENTS: TRADE FIXTURES; TENANT REPAIRS:
In addition to those alterations and improvements provided for in Section 3
above, Tenant shall have the right to adapt from time to time the Premises to
its use and, in that connection, shall have the right to install manufacturing
facilities, laboratory facilities, test centers, showcases, counters,
electrical, telephone and other communications connections and other trade
fixtures necessary to accommodate Tenant's business operation. Tenant shall
obtain prior consent from Landlord for any major Tenant alterations and
improvements and any alterations, improvements or work of any kind with
respect to the roof, which consent shall not be unreasonably withheld. All
Tenant alterations and improvements must be done in good, workmanlike and
orderly fashion, and shall be of such nature that as not to affect the safety
or structural soundness of the Building. Tenant shall not make any alterations
or improvements to the roof that are inconsistent with or void Landlord's
warranty for the roof. Landlord's warranty shall permit the use of multiple
contractors.
Any and all alterations, improvements, additions and partitions,
including the installation of trade fixtures, which may be made by Landlord or
by Tenant upon the Premises, shall be the sole and absolute property of
Landlord and shall remain upon and be surrendered with the Premises, as a part
thereof, at the termination of this Lease (whether by default or otherwise),
without disturbance, molestation or injury, with the exception that any such
alterations, improvements, additions, partitions, or trade fixtures which
relate specifically to Tenant's business may be removed from the Premises by
Tenant upon termination of the Lease, provided that Tenant can accomplish such
removal without damage to the Premises.
Subject to all other terms of this Lease, Tenant shall take good care of
the Premises and fixtures, make good any injury or breakage done by Tenant or
Tenant's agents, employees or visitors, and shall quit and surrender the
Premises, at the end of the Term, or the Option Term (as applicable) in as good
condition as the reasonable use thereof will permit.
8. ASSIGNMENT. Tenant, successors, heirs, executors or administrators
shall not assign this agreement, or underlet or underlease the Premises, or any
part thereof, without Landlord's prior consent in writing. Notwithstanding any
such permitted sublease, Tenant shall remain fully and primarily liable for the
payment of all rent and additional rent, and the performance of all the terms,
covenants and conditions contained in this Lease Agreement, jointly and
severally with such assignee or sublessee. Tenant shall not occupy, or permit
or suffer the Premises to be occupied for any business or purpose deemed
disreputable or extra-hazardous, under the penalty of damages and forfeiture,
and in the event of a breach thereof, the Term herein shall immediately cease
and determine at the option of Landlord as if it were the expiration of the
original Term.
9. SIGNS. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the Premises
or Building without the prior written approval and consent of Landlord, which
shall not be unreasonably withheld. Should Landlord deem it necessary to remove
the same in order to paint, alter, or remodel any part of the Building,
subject to Tenant's prior approval, Landlord may remove and replace same at
Landlord's expense. Landlord shall supply the exterior monument sign for the
Building to which Tenant may affix its name. All costs associated with affixing
Tenant's name to the exterior monument sign or Tenant's entry door shall be
borne by Tenant. Tenant must have its name placed on its entry door within one
month of its occupancy date. Any temporary signage may be displayed only on
prior written approval by Landlord, which approval shall not be unreasonably
withheld. All signage must conform to applicable Town of Colonie Sign Law.
10. DEFAULT OF TENANT. Each of the following shall be an "Event of
Default" under this Lease:
(a) any failure of Tenant to pay any rent when due and such
failure continues uncured for fifteen (15) days after Landlord gives Tenant
notice of such failure;
(b) any failure of Tenant to perform any other of the terms,
conditions or covenants of this Lease to be performed by Tenant and such failure
continues uncured for thirty (30) days after written notice from Landlord
specifying such failure, except that in cases where Tenant cannot reasonably
cure within said thirty (30) day period, only if Tenant fails to commence to
cure within such thirty (30) day period and thereafter to diligently continue
to cure the same until fully corrected; and
(c) if both (i) Tenant's estate created by this Lease shall
be taken upon execution, attachment or other process of law, and any such
execution, attachment or other process be not vacated or set aside within thirty
(30) days thereafter, or if Tenant shall be adjudged as bankrupt, or if Tenant
shall file a voluntary petition in bankruptcy, or if an involuntary petition in
bankruptcy be filed and not vacated or set aside within ninety (90) days
thereafter, and (ii) there otherwise occurs an Event of Default as specified in
subparagraphs "(a)" and "(b)" above.
11. REMEDIES. Upon an event of Default, Landlord may immediately, or
at any time thereafter, re-enter the Premises and remove all persons and all or
any property therefrom, either by summary dispossess proceedings, or by any
suitable action or proceeding at law, and repossess and enjoy the Premises
together with all additions, alterations and improvements. In any such case,
Landlord may either relet the Premises or any part or parts thereof for
Landlord's own account, or may at Landlord's option, relet the Premises or any
part or parts thereof, as the agent of Tenant, and receive the Rents therefor,
applying the same first to the payment of such expenses as Landlord may have
incurred, and then to the fulfillment of the covenants of Tenant herein, and
the balance, if any, at the expiration of the Term, shall be paid to Tenant.
In the event that the Term shall terminate by summary proceedings or otherwise,
and if Landlord shall not relet the Premises for Landlord's own account, then,
whether or not the Premises be relet, Tenant shall remain liable for, and Tenant
hereby agrees to pay to Landlord, until the time when this Lease would have
expired but for such termination or expiration, the equivalent of the amount
of all of the Rent and "additional Rent" reserved herein, less the avails of
reletting, if any, and the same shall be due and payable by Tenant to Landlord
on the several Rent days above specified; that is, upon each of such Rent days
Tenant shall pay to Landlord the amount of deficiency then existing. Tenant
hereby expressly waives any and all right of redemption in case Tenant shall
be dispossessed by judgment or warrant of any court or judge, and Tenant waives
and will waive all right to trial by jury in any summary proceedings hereafter
instituted by Landlord against Tenant in respect to the Premises or any action
to recover Rent or damages hereunder.
12. ACCESS TO PREMISES. Tenant agrees that Landlord and Landlord's
agents and other representatives shall have the right to enter into and upon
the Premises, or any part thereof, at all reasonable hours and upon twenty-four
(24) hours reasonable notice (except in the case of emergencies) for the purpose
of examining the same, or for making such repairs, alterations, additions, or
improvements therein as may be necessary or deemed advisable by Landlord.
13. ADDITIONAL BUILDINGS. Landlord acknowledges that Tenant may
desire to construct a manufacturing facility on the land upon which the Premises
is located. Landlord agrees to enter into good faith negotiations with Tenant
with respect to Landlord's construction of such building or Landlord's land for
use and occupancy by Tenant as a manufacturing facility, or, alternatively, a
long-term ground lease permitting Tenant's construction of such a facility,
provided, that Landlord's obligation to enter such negotiation shall be
contingent upon Tenant providing evidence of the availability of financing such
a project.
14. TENANT'S RIGHT OF FIRST REFUSAL. If (i) Landlord receives a bona
fide offer for the lease of all or any portion of the first floor of Building 2
not then leased by Tenant or Xxxxxx-Xxxxxx Technologies, Inc. (the "Space"), or
(ii) Landlord desires to offer the space for lease, Landlord shall give Tenant
the right of first refusal to lease the space, at the rent and on the terms and
conditions of the offer, in accordance with the following:
(a) The right of first refusal will be extended by Landlord
giving Tenant written notice of the particular offer received or made by
Landlord, together with a detailed summary of the offer, requiring Tenant to
sign an appropriate amendment to this Lease subjecting the space to this Lease
at the rent and for the term set forth in the offer, within 30 days after the
mailing of such notice.
(b) In a case arising under clause (i) above of this
paragraph, if Tenant does not sign an amendment to this Lease for the space
within the 30-day period, Landlord will have the right to accept the offer
received free of the rights of Tenant under this paragraph, except as stated
in subparagraph (d) of this paragraph.
(c) In a case arising under clause (ii) above of this
paragraph, if Tenant fails to accept or rejects the offer within the 30-day
period, Landlord will be entitled for a period of 180 days to lease the space
on the same terms stated in the notice to Tenant. If Landlord does lease the
space during the 180-day period, the right granted Tenant under this paragraph
will automatically terminate, except as stated in subparagraph (d) of this
paragraph.
(d) If Landlord does not lease the space pursuant to
subparagraph (b) above strictly in accordance with the offer presented to, and
rejected by, Tenant, or does not lease the space during the 180-day period
referred to in subparagraph (c) above, or if upon leasing the space to a third
party, such lease terminates or the space becomes vacant while this Lease is
still in force, Landlord may not subsequently lease the space without Landlord's
compliance with this paragraph. Tenant's right of first refusal to lease the
space will continue throughout the term of this Lease with respect to any space
available for lease from time to time.
(e) Any space leased by Tenant will be added to the Premises
as of the date provided in the offer, and the Rent will be adjusted to reflect
the rent provided to be paid in accordance with the offer. Tenant shall execute
amendments to this Lease to reflect additions to the Premises resulting from the
exercise of this right of first refusal to lease. Tenant's lease of any space
pursuant to this right of first refusal will be on all the terms and conditions
set forth in this Lease except as to rent, which will be that set forth in the
offer. Except as stated in this Section, Landlord is under no obligation to
offer for lease all or any portion of the space to Tenant or any other person.
15. INABILITY TO PERFORM. Except as set forth herein, this Lease and
the obligation of Tenant to pay Rent hereunder and perform all of the other
covenants and agreements hereunder on part of Tenant to be performed shall in
no way be affected, impaired or excused because Landlord is unable to supply or
is delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repairs, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures or Landlord is prevented or delayed from so doing, by reason of
governmental preemption in connection with any National Emergency declared by
the President of the United States or in connection with any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the condition of supply and demand which have been or are
affected by war or other emergency.
16. DESTRUCTION. In the case of damage, by fire or other action of
the elements, to the Building, without the fault of Tenant or of Tenant's agents
or employees, if the damage is so extensive as to amount practically to the
total destruction of the Premises or of the Building, or if Landlord shall
within a reasonable time decide not to rebuild, this Lease shall cease and come
to an end, and the Rent shall be apportioned to the time of the damage. In all
other cases where the Premises are damaged by fire without the fault of Tenant
or of Tenant's agents or employees, Landlord promptly shall repair the damage
after notice of damage, and if the damage has rendered the Premises
untenantable, in whole or in part, there shall be an apportionment of the Rent
until the damage has been repaired. Consideration shall be given to delays
caused by strikes, adjustment of insurance and other causes beyond Landlord's
control. Landlord is not required to repair or replace any equipment,
fixtures, furnishings or decorations, unless originally installed by Landlord.
If the fire or other casualty is caused by an act or negligence of
Tenant, Tenant's employees or invitees, then all repairs will be made at
Tenant's expense and Tenant must pay the full rent with no adjustment. The cost
of the repairs will be added rent.
Landlord has the right to demolish or rebuild the Building if there is
substantial damage by fire or other casualty. Landlord or Tenant may cancel
this Lease within 30 days after the substantial fire or casualty by giving
Landlord/Tenant notice of Landlord's/Tenant's intention to demolish or rebuild.
The Lease will end 30 days after Landlord's/Tenant's cancellation notice to
Landlord/Tenant. Tenant must deliver the Premises to Landlord on or before the
cancellation date in the notice and pay all Rent due to the date of the fire or
casualty. If the Lease is canceled, Landlord is not required to repair the
Premises or Building. The cancellation does not release the Tenant or Landlord
of liability in connection with the fire or casualty. This section is intended
to replace the terms of New York Real Property Law Section 227.
17. CONDEMNATION. Should the land whereon all or part of the Building
stands be condemned for public use, then in that event, upon the taking of the
same for such public use, this Lease shall become null and void, and the Term
shall cease and come to an end upon the date when the same shall be taken and
the Rent and all other charges shall be apportioned as of said date. Tenant
shall have no claim against Landlord for the value of any unexpired Term of
this Lease. No part of any award, however, shall belong to Tenant, except as
permitted by law.
18. LIABILITY. Landlord is exempt from any and all liability for any
damage or injury to person or property caused by or resulting from steam,
electricity, gas, water, rain, ice or snow, or any leak or flow from or into any
part of said Building or from any damage or injury resulting or arising from any
other cause or happening whatsoever unless said damage or injury be caused by or
be due to the negligence of Landlord.
19. INDEMNIFICATION. Except for any injury or damage to persons or
property on the Premises that is caused by or results from the negligence or
deliberate act of Landlord, its employees or agents, and subject to the
provisions of paragraph 19, Tenant will not hold Landlord, its employees or
agents liable for, and Tenant will indemnify and hold harmless Landlord, its
employees and agents from and against any and all demands, claims, causes of
action, fines, penalties, damages (including consequential damages),
liabilities, judgments and expenses (including without limitation reasonable
attorneys' fees) incurred in connection with or arising from:
1) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person claiming under Tenant;
2) any activity, work or thing done or permitted by Tenant in or
about the Premises, the Building or the Project;
3) any breach by Tenant or its employees, agents, contractors or
invitees of this Lease; and
4) any injury or damage to the person, property or business of
Tenant, its employees, agents, contractors or invitees entering
upon the Premises under the express or implied invitation of
Tenant.
If any action or proceeding is brought against Landlord, its employees
or agents by reason of any such claim for which Tenant has indemnified Landlord,
Tenant, upon written notice from Landlord, will defend the same at Tenant's
expense, with counsel
reasonably satisfactory to Landlord.
20. TENANT'S INSURANCE. At all times during the Term, Tenant will
carry and maintain, at Tenant's expense, the following insurance, in the amounts
specified below or such other amounts as Landlord may from time to time
reasonably request, with insurance companies and on forms satisfactory to
Landlord:
1) Bodily injury and property damage liability insurance,
with a combined single occurrence limit of not less than
$3,000,000 or the appraised value of the Premises, whichever is
greater. All such insurance will be equivalent to coverage
offered by a commercial general liability form, including without
limitation personal injury and contractual liability coverage
for the performance by Tenant of the indemnity agreements set
forth in this Lease;
2) Workers' compensation insurance satisfying Tenant's
obligations and liabilities under the workers' compensation
laws of the State of New York, including employer's liability
insurance in the limits required by the laws of the State of New
York; and
3) If Tenant operates owned, hired or non-owned vehicles on
the project, comprehensive automobile liability at a limit of
liability not less than $500,000 combined bodily injury and
property damage.
Certificate of insurance, naming the Landlord as additional insured,
will be delivered to the Landlord prior to the Tenant's occupancy of the
Premises. All commercial general liability or comparable policies maintained
by Tenant will name Landlord as additional insured. All commercial general
liability and property policies maintained by Tenant will be written as primary
policies, not contributing with and supplemental to the coverage that the
Landlord may carry.
21. LIABILITY INSURANCE. Tenant shall carry public liability
insurance in the amount of One Million Dollars ($ 1,000,000) per person -- Two
Million Dollars ($2,000,000) per occurrence covering the Premises and shall name
Landlord as an additional insured therein and shall furnish to Landlord a
certificate of said insurance.
22. WAIVER OF CLAIMS AND SUBROGATION. Landlord shall be exempt from,
and the Tenant agrees to accept the risk of loss by fire or other casualty
covered by insurance as to the contents, leasehold improvements or fixtures of
the Premises ensuing by reason of fire or other casualty covered by insurance.
Tenant shall be exempt from, and Landlord agrees to accept the risk of loss by
fire or other casualty covered by insurance as to the building, equipment,
fixtures and appurtenances of the Premises during the Term or any renewal
thereof. Landlord and Tenant shall each cause each insurance policy carried by
each respectively, insuring the Building or the Premises, its contents,
Leasehold improvements or fixtures, to be written in a manner so as to provide
that the insurance companies waive all right or recovery by way of
subrogation against the other party in connection with any loss or damage
covered by any such policies.
23. NO WAIVER. The failure of Landlord or Tenant to insist upon a
strict performance of any of the Terms, conditions and covenants herein, shall
not be deemed a waiver of any rights or remedies that Landlord or Tenant may
have, and shall not be deemed a waiver of any subsequent breach or default in
the Terms, conditions and covenants herein contained. This instrument may not
be changed, modified or discharged orally.
24. SUBORDINATION. This instrument shall not be a lien against the
Premises in respect to any bank, insurance company or other lending institution
mortgages that are now on or that hereafter may be placed against the Premises,
and that the recording of such mortgage or mortgages shall have preference and
precedence and be superior and prior in lien of this Lease, irrespective of the
date of recording and Tenant agrees to execute any such instrument without cost,
that maybe reasonably necessary or desirable to further effect the subordination
of this Lease to any such mortgage or mortgages, provided any such mortgagee
shall first execute and deliver to Tenant a nondisturbance agreement in a form
reasonably satisfactory to Tenant, by which the mortgagee agrees not to cut off
this Lease in foreclosure. Tenant's refusal to execute such instrument shall
entitle Landlord, or Landlord's assigns and legal representatives, to cancel
this Lease without incurring any expense or damage and the Term hereby granted
is expressly limited accordingly.
25. ESTOPPEL CERTIFICATE. Tenant shall from time to time, upon
Landlord's reasonable request, deliver a written instrument ("Estoppel
Certificate") to Landlord or to any other person or firm specified by Landlord,
duly executed and acknowledged, certifying to the best of its knowledge,
information or belief that this Lease is unmodified and in full force and
effect or, if there has been any modification, that the Lease is in full force
and effect as modified, and stating any and all such modifications; specifying
the dates to which Rent and additional rent provided for herein have been paid,
and whether there exists any default in the performance of any covenant
agreement, term, provision or condition contained in this Lease.
26. QUIET ENJOYMENT. Tenant, upon payment of the rent, additional
rent and other required charges, and the performance by Tenant under this Lease,
shall have the peaceful and quiet enjoyment of the Premises without hindrance
or disturbance by Landlord or those claiming by, through or under Landlord, or
any other person or entity whatsoever.
27. LATE CHARGES. A late charge of five (5%) percent shall be
assessed to any rental payment not made within fifteen (15) days of the due
date and shall be considered additional rent.
28. NOTICES. Any notice given Tenant shall be in writing and sent by
registered or certified mail to Tenant at:
Plug Power, L.L.C.
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Tenant may change the address at which notices shall be given at any time by
like notice to Landlord. Any notices to be given Landlord shall be given in
writing and sent by certified mail to Landlord at:
Mechanical Technology, Incorporated
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Landlord may change the address at which notices shall be given any time by like
notice to Tenant.
29. ATTACHMENTS TO LEASE. The covenants and agreements in the Lease,
addendums, exhibits and attachments shall be binding upon the parties hereto
and upon their respective successors, heirs, executors and administrators.
30. MISCELLANEOUS. Notwithstanding anything to the contrary contained
in this Lease, any monies due Landlord under this Lease in addition to the rent
shall be deemed to be additional rent. Any default on the payment of such
additional rent shall give Landlord the same rights and remedies as are provided
herein with respect to a default in the payment of rent. Tenant's obligations
to pay rent and additional rent shall survive the expiration of the Term, or the
Optional Term, or earlier termination of this Lease.
The failure of Landlord or Tenant to insist upon a strict
performance of any term, covenant or condition herein shall not be deemed
a waiver of any rights or remedies that Landlord or Tenant may have or a waiver
of any subsequent breach or default.
If any provision of this Lease shall be unenforceable or invalid, such
unenforceability or invalidity shall not affect any other provision of this
Lease.
IN WITNESS WHEREOF, Landlord and Tenant respectively have signed and
sealed this Lease as of the day and year first above written.
MECHANICAL TECHNOLOGY, INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
Its: Vice President and Chief Financial Officer
PLUG POWER, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: President & CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 9th day of June in the year 1998 before me, the
undersigned, a Notary Public in and for said State, personally appeared
Xxxxxxx X. Xxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s)
on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ M. Xxxxxx Xxxx
______________________________
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 10th day of June in the year 1998 before me, the
undersigned, a Notary Public in and for said State, personally appeared
Xxxx Xxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s)
on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxx Xxxxx Xxxxxxx
______________________________
NOTARY PUBLIC
