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Exhibit 4.22
AGREEMENT OF LEASE
AGREEMENT OF LEASE, made as of the 15th day of December, 2000, between
CROWN/XXXXXXXX REALTY CORP., a New York Corporation with offices at 00
Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000, XXX (hereinafter referred to as
"Landlord"), and HYDROGENICS USA, INC., a Delaware Corporation with offices at
0000 XxXxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0, Xxxxxx (hereinafter
referred to as "Tenant"), and
WHEREAS, Landlord is the owner of the premises known generally as 00 Xxxx
Xxxx Xxxxx, Xxxx, Xxx Xxxx 00000, being a 9600 square foot commercial building
(844+/- office and 8756+/- warehouse) with approximately one acre of land
(hereinafter the "Demised Premises").
W I T N E S S E T H :
1. DEMISED PREMISES:
1.01 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, the Demised Premises.
2. TERM:
2.01 The initial term of this Lease shall be for three (3) years, and
fifteen (15) days commencing on the 15th day of December, 2000, and terminating
on the 31st day of December, 2003, (hereinafter the "Initial Term").
2.02 Provided that this Lease has not been terminated pursuant to any
of the provisions contained herein and that the Tenant is not in default of any
of the provisions hereof, the Tenant may elect to extend the term of this Lease
for an additional three (3) year term (hereinafter the "Option Term") by giving
the Landlord ninety (90) days written notice prior to the expiration of the
Initial Term.
3. RENT:
3.01 Commencing on January 1, 2001, Tenant agrees to pay the Landlord
rent monthly, in advance, as follows:
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(a) $4,560.00 (USD) per month during the Initial Term; and
(b) $4,760.00 (USD) per month during the Option Term, if
exercised by Tenant.
3.02 Upon the execution of this Lease, the Tenant shall pay to the
Landlord the sum of $9,120.00 which shall represent prepayment of $4,560.00 for
the rent for January, 2001, plus a security deposit in the sum of $4,560.00
which shall be held by the Landlord as security for the faithful performances of
the Tenant's obligations under this lease.
4. USE OF PREMISES:
4.01 Tenant may use and occupy the Demised Premises for the purposes of
operating Tenant's business of the manufacture, assembly, testing and
distribution of power source systems together with activities related thereto
and any other legal purpose permitted by the Town of Rush and the County of
Monroe.
5. TAXES:
5.01 The Tenant agrees to pay, as additional rent, all real property
taxes, water and sewer rents, rates and charges, and assessments, which may be
levied or assessed against the Demised Premises by any lawful authority for the
period of the Initial Term of this Lease or any extended term hereof. The real
property taxes, water and sewer rents, rates and charges shall be adjusted.
Current taxes, water and sewer rents and assessment will be prorated and
adjusted between Landlord and Tenant as of the date of the commencement of the
term of the Lease. Should the State of New York or any political subdivision
thereof or any governmental authority having jurisdiction thereof or any
governmental authority having jurisdiction thereover, impose a tax and/or
assessment (other than a tax on the income of the Landlord, or any tax on the
paid-up capital of the Landlord, or inheritance or franchise tax, or any similar
tax which is personal to the Landlord and not in the nature of a real estate
tax) upon or against the rental payable by Tenant to Landlord, or any other tax
which is intended in whole or in part as a substitute for the current method of
real
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estate taxation, such tax and/or assessment shall be deemed to constitute a tax
and/or assessment against the Demised Premises for the purpose of this Article.
5.02 The Tenant shall have the right to challenge any tax assessment
against the Demised Premises by grievance or certiorari proceedings. Such
challenges shall be at Tenant's expense. The Landlord agrees to cooperate with
the Tenant in any such challenge of tax assessment and to execute all documents
necessary or appropriate to assist the Tenant in such proceedings.
6. INSURANCE:
6.01 The Landlord shall procure and pay for the cost, during the term
hereof, of insurance on the building only for fire, extended coverage, vandalism
and malicious mischief for not less than the full insurable value thereof. The
Tenant shall procure insurance for the improvements located on the Demised
Premises and all appurtenances thereto including Tenant's merchandise, trade
fixtures, furnishings, equipment and personal property for not less than the
full insurable value thereof. The Landlord shall be named as an additional
insured on said policy of insurance.
6.02 Tenant agrees to carry public liability insurance on the Demised
Premises during the term hereof, covering both Tenant and Landlord as insureds
with terms and companies reasonably satisfactory to Landlord, but in any event
including coverage for Tenant's indemnity to Landlord contained in Article "20"
of this Lease, for limits of not less than One Million ($1,000,000.00) Dollars
for personal injury or death arising out of any one occurrence and providing
that Landlord and Tenant shall be given a minimum of thirty (30) days written
notice by the insurance company prior to cancellation, termination or change in
such insurance. Tenant also agrees to carry property damage insurance in the
amount of not less than Five Hundred Thousand ($500,000.00) Dollars for damage
to property arising out of any one occurrence.
6.03 Tenant shall provide Landlord with copies of the policies or
certificates evidencing that such insurance is in full force and effect and
stating the terms thereof.
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6.04 Landlord and Tenant each hereby release the other, and their
respective employees, agents and every person claiming by, through, or under
either of them, from any and all liability or responsibility (to the other or
anyone claiming by, through, or under them by way of subrogation or otherwise)
for any loss or damage to any property (real or personal) caused by fire or any
other insured peril covered by any insurance policies for the benefit of either
party, even if such loss or damage shall have been caused by the fault or
negligence of the other party, their employees or agents, provided, however,
this release shall be in force and effect only with respect to loss or damage
occurring during such time as the releasor's policies of insurance covering such
loss or damage shall contain a clause to the effect that this release shall not
affect said policies or the right of the releasor to recover thereunder.
Landlord and Tenant shall each request the issuers of their respective insurance
to issue such policies to contain appropriate provisions for waiver of
subrogation by such insurers with respect to claims against Landlord and Tenant
and their respective employees, agents and persons claiming by or through either
of them. If such insurer shall require the payment of an additional premium to
issue such insurance, the party procuring such insurance shall not be required
to obtain such waiver, if obtainable, unless the party against whom such waiver
is sought pays the additional premium.
7. MAINTENANCE:
7.01 Upon commencement of this Lease, the Demised Premises will be in a
clean, sanitary and safe condition. Tenant shall keep and maintain the Demised
Premises in a clean, sanitary and safe condition. The Tenant shall provide for
its own trash and rubbish removal. The Tenant shall provide and pay for snow
plowing of driveways and parking areas. The Landlord warrants that at the
inception date of this Lease and for ninety (90) days thereafter, all HVAC and
utility systems shall be in good working order at the Landlord's expense. During
the term of the Lease, the Tenant shall keep and maintain the HVAC system and
all other utility systems of the Demised Premises in good working order at the
Tenant's expense.
8. ALTERATIONS:
8.01 Tenant may not make any major installations, alterations or
additions in or to the Demised Premises without consent of Landlord, which
consent shall not be unreasonably
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withheld. All alterations, improvements and installations made by Tenant shall
be at its sole cost and expense. Minor installations, alterations, or additions
in or to the Demised Premises may made without the consent of the Landlord. All
work shall be done in a good and workmanlike manner and in conformity with the
building laws and regulations of the appropriate municipal and state
authorities. All shelving, partitions, fixtures, trade fixtures, machinery and
other equipment and property installed by Tenant, shall remain the property of
the Tenant and may upon termination of this Lease, be removed by Tenant. Any
injury or damage caused to the Demised Premises by such removal shall be
promptly repaired by Tenant and said Demised Premises restored substantially to
the condition as the same were at the commencement of this Lease. If any such
property not removed from the Demised Premises prior to termination of this
Lease, then, upon the termination of this Lease, such property shall immediately
become the property of the Landlord.
9. REPAIRS:
9.01 The Tenant shall take good care of the Demised Premises, maintain
same and shall, at Tenant's own cost and expense, make all repairs, both
interior and exterior, excluding only repairs to the roof, foundations, floor
pad, exterior walls and other structural elements, and repairs to be made by the
Landlord as set out in Sections 7.01 and 10.01 hereof, all of which shall be the
Landlord's responsibility at the Landlord's expense. At the end or other
expiration of the term hereof, Tenant shall deliver up the Demised Premises in
good order and condition, damage by elements, repairs required by the Landlord,
and normal wear and tear excepted. In the event that HVAC, plumbing or other
fixed mechanicals require replacement, Landlord and Tenant shall each be
responsible for fifty (50%) percent of the cost of replacement. In the event
repairs are required by the Landlord, the Tenant shall notify the Landlord of
the nature of such repairs. If the repairs are not made as set out in Section
9.02 hereof, the Tenant may make such repairs and seek reimbursement from the
Landlord, failing which, the Tenant may deduct the cost thereof from the rent
payable under this Lease.
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9.02 All repairs to be made pursuant to this Lease shall be made promptly
as and when necessary and in a good and workmanlike manner, all materials used
to be of a quality at least equal to that of the materials being repaired.
10. DESTRUCTION BY FIRE OR OTHER CASUALTY:
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10.01 In the event the Demised Premises are hereafter damaged or destroyed
or rendered partially untenantable for their accustomed use by fire or other
casualty insured under the coverage which Landlord is obligated to carry
pursuant hereto, the Landlord shall promptly repair said premises and restore
the same to substantially the condition in which they were immediately prior to
the happening of such casualty and from the date of such casualty until the
Demised Premises are so repaired and restored, monthly rental payments and all
other charges and items of additional rental payable hereunder shall xxxxx to
the extent that the Demised Premises are rendered untenable. In the event fifty
percent (50%) or more of the Demised Premises be hereafter destroyed or rendered
untenantable by fire or other casualty (based upon the cost to replace the
premises damaged or destroyed as compared with the physical value of the
improvements on the Demised Premises immediately prior to such fire or other
casualty as shown by certificate of Landlord's architect), then the Tenant shall
have the right to terminate this Lease effective as of the date of such
casualty, by giving to the Landlord, within ninety (90) days after the happening
of such casualty, written notice of such termination. If said notice be given
within said ninety (90) day period, this Lease shall terminate and monthly
rental and all other charges and items of additional rental shall xxxxx as of
the date of fire or other casualty.
11. SIGNS:
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11.01 The Tenant shall have the right to place any sign or signs on the
outside of the Demised Premises as shall meet the requirements of municipal
codes, regulations and authorities. The Tenant shall remove any sign or signs on
the outside of the Demised Premises on the expiration or termination of this
Lease.
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12. UTILITIES:
12.01 The Tenant shall pay all utilities on the Demised Premises during
the term of the Lease.
13. ASSIGNMENT OF LEASE:
13.01 Tenant may not sublet or assign this Lease without the Landlord's
consent which consent shall not be unreasonably withheld. Notwithstanding any
permitted assignment or subletting, no further assignment or subletting may be
made without Landlord's consent and, in all events, Tenant shall remain fully
and primarily liable for the payment of all rent, additional rent and the
performance of all of the terms, covenants and conditions contained herein
jointly and severally with such assignee or sublessee. Landlord's dealing with
an assignee or sublessee shall not affect the continued liability of the Tenant
under this Lease. Notwithstanding the foregoing, the Tenant shall have the
right without the consent of the Landlord to assign this Lease or sublet the
whole or part of the Demised Premises to a corporate parent, subsidiary, or
another company owned by the corporate parent of the Tenant, provided that, the
Tenant provides Landlord with an executed copy of any such assignment or
sublease.
14. COMPLIANCE WITH LAWS:
14.01 The Tenant shall comply with all laws, orders and regulations of
federal, state, county and municipal authorities, and with any direction
pursuant to law of any public officer thereof, which shall impose any violation,
order or duty upon Landlord or Tenant resulting from the use and occupancy of
the Demised Premises by Tenant. Tenant shall have the right, upon giving notice
to Landlord, to contest any obligations imposed upon Tenant pursuant to the
provisions of this Article, and to defer compliance during the pendency of such
contest, provided that the failure of Tenant to so comply will not subject
Landlord to prosecution or criminal penalty. Landlord shall comply with any such
laws, orders, regulations, directions and rules in respect to the Demised
Premises, other than those imposing an obligation upon Tenant as aforesaid,
subject however, to the right of Landlord similarly to contest as aforesaid and
defer compliance during the pendency of such contest.
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15. SUBORDINATION:
15.01 This instrument shall not be a prior lien against said Demised
Premises with respect to any mortgage that is now or that hereafter may be
placed against the Demised Premises and upon the recording of such mortgage or
mortgages, the same shall have preference and precedence and be superior and
prior in lien to this Lease, irrespective of the date or recording of the same
and the Tenant agrees to execute any such instrument, without cost, which may be
deemed necessary or desirable to further effect the subordination of this Lease
to any such mortgage. A refusal to execute such instrument shall entitle the
Landlord, or the Landlord's assigns and legal representatives to the option of
cancelling this Lease without incurring any expense or damage and the term
hereby granted is expressly limited accordingly. The foregoing subordination is
conditioned upon the Landlord securing a non-disturbance agreement (as
hereinafter defined) with any current or future lender holding a mortgage upon
the Demised Premises. The term "non-disturbance agreement" as used in this
Article shall mean an agreement in recordable form between the Tenant and the
holder of a mortgage lien, which shall provide, in substance, that the Tenant
shall attorn to any such mortgagee and that as long as Tenant is not in default
under this Lease beyond any period given to Tenant to cure such default, such
holder will not name or join Tenant as a party defendant or otherwise in any
suit, action or proceeding to enforce, nor will this Lease be terminated or
otherwise affected by enforcement of, any rights given to such holder pursuant
to the terms, covenants or conditions contained in such mortgage, or any other
documents held by such holder or any rights given to such holder as a matter of
law. However, at the election of the holder of any first mortgage on the Demised
Premises this Lease shall be prior and superior to the lien of any such
mortgage.
16. WAIVER OF REDEMPTION:
16.01 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
dispossessed or removed from the Demised Premises because of default by Tenant
pursuant to the covenants or agreements contained in this Lease.
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17. DEFAULT
17.01 (a) It is expressly understood and agreed that in case the Demised
Premises shall be deserted or vacated, or if default be made in the payment of
the rent or additional rent or any part thereof as hereinafter specified, or if,
without the consent of the Landlord, the Tenant shall sell, assign, or mortgage
this Lease, or if default be made in the performance of any of the covenants and
agreements other than the payment of rent or additional rent in this Lease
contained on the part of the Tenant to be kept and performed, after thirty (30)
days written notice to cure same, or if the Tenant shall refuse to comply with
any of the statutes, ordinances, rules, orders, regulations and requirements of
the Federal, State and Local Governments or of any and all their Departments or
Bureaus, applicable to the Demised Premises, the Landlord may on the occasion of
such default, if the Landlord so elects, and may at any time thereafter
terminate this Lease and the terms hereof, on giving to the Tenant thirty (30)
days notice to cure such default, except in the case of non-payment of rent or
additional rent said notice shall require a cure within ten (10) days, and if
such default is not so cured, this Lease and the term hereof shall expire and
come to an end on the date fixed in such notice as if the said date were the
date originally fixed in this Lease for the expiration hereof, or Landlord may
dispossess or remove Tenant or any other occupant of the Demised Premises by
summary proceedings or otherwise, and remove their effects and hold the Demised
Premises as if this Lease had not been made, but without prejudice to Landlord's
remedies, on account thereof as set forth in paragraph (b) below. In the event
of any default, except for non-payment of rent or additional rent, which cannot
be cured within the thirty (30) day period provided for herein, said period
shall be extended provided Tenant has commenced a cure within said thirty (30)
day period and is diligently pursuing such cure.
(b) In the event of such dispossession, termination or removal and
notwithstanding such action or the termination of this Lease: (i) the Tenant
shall be liable forthwith to pay the rent and additional rent payable under this
Lease up to the date of such dispossession, removal or termination, (ii)
Landlord shall use reasonable efforts to re-let the Demised Premises, or any
part
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or parts thereof, either in the name of Landlord or otherwise, for a term or
terms which may, at the option of Landlord, be less than or exceed the period
which would otherwise have constituted the balance of the term of this Lease and
may grant concessions or free rent for a reasonable time; (iii) Tenant shall pay
to Landlord as liquidated damages for the failure of Tenant to observe and
perform the covenants and agreements of Tenant under this Lease, any deficiency
between the rent and additional rent payable by Tenant under this Lease and the
net amount, if any, of the rents collected on account of the Lease or Leases of
the Demised Premises for each month of the period which would otherwise have
constituted the balance of the term of this Lease, (iv) amounts received by
Landlord after reletting shall first be applied against Landlord's expenses
incurred in any reletting, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due under
this Lease, the amount which Tenant is obligated to pay under the terms of this
Lease (Tenant's liability prior to any such reletting and such recovery not in
any way to be diminished as a result of the fact that such reletting might be
for a rent higher than the rent provided for in this Lease); when and if such
expenses have been completely recovered, the amounts received from reletting by
Landlord as have not previously been applied shall be credited against Tenant's
obligations as of each day when a payment would fall due under this Lease, and
only the net amount thereof shall be payable by Tenant. Landlord may make such
reasonable alterations, replacements and decorations in the Demised Premises as
Landlord considers advisable and necessary for the purpose of reletting the
Demised Premises, and the making of such alterations and decorations shall not
operate or be construed to release Tenant from liability under this Lease. The
failure of Landlord to re-let the Demised Premised or any part thereof shall not
release or affect the liability of Tenant for damages under this Lease, however,
Landlord shall use reasonable efforts to re-let the Demised Premises. Landlord
shall in no event be liable in any way whatsoever for inability to re-let the
Demised Premises or, in the event that the Demised Premises are re-let, for
inability to collect the rent under such reletting.
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(c) If after default of payment of rent, or violation of any other
provision of this Lease, the Tenant moves out or is dispossessed and fails to
remove any trade fixture or other property prior to such said dispossession,
removal, or termination of Lease, then in any such events, the said fixtures and
properties shall be deemed abandoned by the said Tenant and shall become the
property of the Landlord.
18. CURING DEFAULT:
18.01 If Tenant shall default in the observance or performance of any
covenant or agreement of this Lease on the part of Tenant to be observed or
performed, beyond any period given to Tenant to cure such default, Landlord may
perform the same for the account of Tenant, and if Landlord makes any
expenditures or incurs any obligation for the payment of money in connection
therewith, including, but not limited to, reasonable attorneys' fees in
instituting, prosecuting or defendant any action or proceeding, such
expenditures paid, or obligations incurred, with interest and costs, shall be
deemed to be additional rent and shall be paid by Tenant to Landlord within ten
(10) days of rendition to Tenant of any xxxx or statement therefor.
19. EMINENT DOMAIN:
19.01 The Landlord warrants to the Tenant that at the inception date of
this Lease, the Landlord has no knowledge of any, actual or proposed,
acquisition or condemnation of the Property or Demised Premises.
19.02 If the whole or part of building or black top of the Demised
Premises shall be acquired or condemned by Eminent Domain for any public or
quasi-public use or purpose, then in that event, the term of this Lease shall
cease and terminate from the date of title vesting in such proceeding. Further,
if so much of the Demised Premises shall be so taken that continued operation
of the Tenant's business would be uneconomical which shall include an inability
of the Tenant to occupy the amount of space needed to carrying on its
operations, the Tenant shall have the right to terminate this Lease by giving
notice to the Landlord of his desire to do so not later than thirty (30) days
after the effective date of such Taking.
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19.03 In the event of a Taking of the Demised Premises or any part
thereof, Landlord shall have and hereby reserves and excepts, and Tenant hereby
grants and assigns to Landlord, all rights to recover for damages to the Demised
Premises, and the leasehold interest hereby created, and to compensation accrued
or hereafter to accrue by reason of such Taking, as aforesaid, and by way of
confirming the foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign, to Landlord all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceedings any claims permitted by law to
recover for relocation expenses, loss of business, or depreciation to, or cost
of removable trade fixtures, furniture and other personal property belonging to
Tenant, or any alterations which are of the nature that would remain the
property of Tenant, provided that such action shall not affect the amount of
compensation otherwise recoverable by Landlord from the Taking Authority.
20. INDEMNIFICATIONS:
20.01 Tenant does hereby covenant and agree with said Landlord that it
will indemnify and save harmless Landlord from and against any and all
liability, damage, penalties or judgments arising from injury to person or
property sustained by anyone in and about the Demised Premises resulting from
any act or acts of omission or commission of Tenant, or Tenant's officers,
agents, servants, employees, contractors, or assignees.
20.02 Landlord does hereby covenant and agree with said Tenant that it
will indemnify and save harmless Tenant from and against any and all liability,
damage, penalties or judgments arising from injury to person or property
sustained by anyone in and about the Demised Premises resulting from any act or
acts of omission or commission of Landlord, or Landlord's officers, agents,
servants, employees, contractors, or assignees.
20.03 The Parties' obligation to indemnify the other under Sections 20.01
and 20.02 hereof shall survive the termination of the lease.
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21. END OF TERM:
21.01 Upon expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the Demised Premises, broom clean,
in good order and condition, reasonable wear and tear and damage by fire or
other casualty excepted.
22. QUIET ENJOYMENT:
22.01 The Landlord covenants and agrees that Tenant may peaceably and
quietly enjoy the Demised Premises, subject, however, to the covenants and
agreements contained in this Lease.
23. NO WAIVER:
23.01 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or agreement contained in
this Lease shall not prevent a similar subsequent act from constituting a
default under this Lease. This Lease contains the entire agreement between the
parties, and cannot be changed, modified, or amended unless such change,
modification or amendment is in writing and signed by the party against whom
enforcement of such change, modification or amendment is sought.
23.02 No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a lesser amount
with an endorsement or statement thereon, or upon any letter accompanying such
check, that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
24. MEMORANDUM OF LEASE:
24.01 Upon request of either party to this Lease, Landlord and Tenant
agreed to execute and deliver a memorandum of this Lease and a memorandum of any
modification of this Lease, in recordable form, containing the information
required by Section 291-c and 291-cc of the Real Property Law of the State of
New York.
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25. INSPECTION OF PREMISES:
25.01 The Tenant agrees that the Landlord and its agents and/or
representative shall have the right to enter into and upon the Demised
Premises, or any part thereof, upon reasonable advance notice and at all
reasonable hours for the purpose of examining the same, or making such repairs
or alterations therein as may be necessary for the safety and preservation
thereof.
25.02 The Tenant also agrees to permit during the last six (6) months
of the term of this Lease, the Landlord or the Landlord's agents to show the
Demised Premises to persons wishing to lease the same.
26. NOTICES:
26.01 Any notice or demand required to be given under this Lease, or
pursuant to any law or governmental regulations, by Landlord to Tenant or by
Tenant to Landlord shall be in writing. Unless otherwise required by law of
governmental regulations, any such notice or demand shall be deemed given upon
receipt by the party or refusal to accept delivery if sent by registered or
certified mail, enclosed in a secure postage prepaid wrapper, addressed (i) to
Landlord, at the address of Landlord first hereinabove set forth, or such other
address or addresses as Landlord may designate by notice to Tenant, together
with a copy to Xxxxx & Xxxxxxxx, P.C. 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx; or (ii) to Tenant, at the address
of Tenant first hereinabove set forth or such other address or addresses as
Tenant may designate by notice to Landlord, together with a copy of such notice
to Hydrogenics USA, Inc., 0000 XxXxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0,
Xxxxxx, Attention: Xxxxxxxx Xxxxx.
26.02 After receiving notice from any person, firm or other entity
that it holds a mortgage which includes the Demised Premises as part of the
mortgaged premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder, and the curing of any of
Landlord's default by such holder shall be treated as performance by Landlord.
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27. CAPTIONS:
27.01 The captions preceding the Articles of this Lease are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope of this Lease nor the intent of any provision of this Lease.
28. SUCCESSOR AND ASSIGNS:
28.01 The covenants and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and the heirs, personal representatives,
successors and assigns of Landlord, and Tenant and its successors and assigns.
No rights, however, shall inure to the benefit of any assignee of Tenant unless
the assignment to such assignee has been approved by Landlord in writing as
provided in Article "13" hereof.
29. MISCELLANEOUS:
29.01 If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
29.02 Notwithstanding anything in this Lease, if either party is bona fide
delayed or hindered in or prevented from the performance of any term, covenant
or act required hereunder by reason of strikes, labour troubles, inability to
procure materials or services, power failure, restrictive governmental laws or
regulations, riots, insurrection, sabotage, rebellion, war, act of God, or other
reason whether of a like nature or not which is not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then the performance of that term, covenant or act is excused for the period of
the delay and the party delayed will be entitled to perform that term, covenant
or act within the appropriate time period after the expiration of that period of
the delay. However, the provisions of this paragraph do not operate to excuse
the Tenant from the prompt payment of rent.
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29.03 Tenant shall store all trash, debris and all other waste materials
in a fireproof container outside the Demised Premises in areas designated by
Landlord.
29.04 The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
Demised Premises and this document becomes effective and binding only upon the
execution and delivery hereof by Landlord and by Tenant. All negotiations,
considerations, representations and understandings between Landlord and Tenant
are incorporated herein and may be modified or altered only by agreement in
writing between Landlord and Tenant, and no act or omission of any employee or
other agent of Landlord shall alter, change or modify any of the provisions
hereof.
30. HAZARDOUS SUBSTANCES:
30.01 (1) The term "Hazardous Substances", as used in this Lease, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
(2) Landlord's Representations. Landlord represents that at
the commencement of this Lease, the Demised Premises are not in violation of any
federal, state or local law, ordinance or regulation related to environmental
conditions. The Landlord shall indemnify, defend, and hold harmless the Tenant
and its officers, directors, beneficiaries, shareholders, partners, agents and
employees from all fines, suits, procedures, claims, and actions of every kind,
and all costs associated therewith (including attorneys' and consultants' fees)
arising out of or in any way connected with any deposit, spill, discharge or
other release of hazardous substances that occurred prior to the commencement of
this Lease and to take all steps required by all Authorities under the laws and
all other environmental laws. The Landlord's obligation herein shall survive the
expiration of this Lease.
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(3) Tenant's Restrictions. Tenant shall not cause or permit to
occur:
(a) Any violation of any federal, state or local law,
ordinance, or regulation now or hereafter enacted, related to environmental
conditions ("Environmental Law") on, under, or about the Demised Premises,
arising from Tenant's use or occupancy of the Demised Premises, including, but
not limited to, soil, and ground water conditions; or
(b) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substance on,
under, or about the Demised Premises by Tenant, or the transportation by Tenant
to or from the Demised Premises of any Hazardous Substance, except if such use,
processing, storage, or testing is in accordance with Environmental Law.
(4) Environmental Clean-up.
(a) Tenant shall, at Tenant's own expense, comply with all
Environmental Law regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances.
(b) Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities") under
Environmental Law.
(c) Should any Authority or any third party demand that a
clean-up plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances at or from
the Demised Premises, which arises out of the Tenant's use or occupancy of the
Demised Premises, then Tenant shall, at Tenant's own expense, prepare and
submit the required plans and all related bonds and other financial assurances;
and Tenant shall carry out all such clean-up plans.
(d) Tenant shall promptly provide all information
regarding the use, generation, storage, transportation, or disposal or
Hazardous Substances that is requested by Owner. If Tenant fails to fulfill any
duty imposed under this Paragraph (3) within a reasonable time, Owner
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may do so; and in such case, Tenant shall cooperate with Owner in order to
prepare all documents Owner deems necessary or appropriate to determine the
applicability of the Laws to be Demised Premises and Tenant's use thereof, and
for compliance therewith, and Tenant shall execute all documents promptly upon
Owner's request. No such action by Owner and no attempt made by Owner to
mitigate damages under any Law shall constitute a waiver of any of Tenant's
obligations under this Paragraph (3).
(e) Tenant's obligations and liabilities under this Paragraph (4)
which arises out of the Tenant's use or occupancy of the Demised Premises, shall
survive the expiration of this Lease.
(f) Should any authority or third party demand that a clean-up
plan be prepared and that a clean-up be undertaken because of any deposit,
spill, discharge or other release of Hazardous Substances of or from the Demised
Premises, which arose prior to the inception of this Lease, the Landlord shall,
at Landlord's expense, prepare and submit the required plans and other related
bonds and other financial assurances and the Landlord shall carry out such
clean-up plans.
(5) Tenant's Indemnity.
(a) Tenant shall indemnify, defend, and hold harmless Landlord
and it's officers, directors, beneficiaries, shareholders, partners, agents, and
employees from all fines, suits, procedures, claims, and actions of every kind,
and all costs associated therewith (including attorneys' and consultants' fees)
arising out of or in any way connected with any deposit, spill, discharge, or
other release of Hazardous Substances that occurs during the term of this Lease,
which arises from Tenant's use or occupancy of the Demised Premises, or from
Tenant's failure to provide all information, make all submissions, and take all
steps required by the Authorities under the Laws and all other environmental
laws.
(b) Tenant's obligations and liabilities under this Paragraph (5)
shall survive the expiration of this Lease.
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31. BROKER'S COMMISSION:
31.01 The parties each represent that the only brokers that either party
has dealt with reference to this Lease are Pyramid Brokerage Company of
Rochester, Inc. of Fairport, New York ("Pyramid"), and RE/MAX 1st Commercial of
Rochester, New York ("RE/MAX"). The Landlord shall pay all commissions due to
Pyramid, which will split equally (50%/50%) with RE/MAX the commissions due
Pyramid under its separate, exclusive listing agreement with the Landlord. Both
parties hereto represent that he has no dealings with any other broker or agent
in connection with this Lease and covenants to hold harmless and indemnify the
other from and against any and all losses, damages and expenses, including
without limitation, court costs and attorneys' fees and disbursements, arising
out of any claims by any other brokers or agents with respect to dealing with
them in connection with this Lease or the negotiation thereof.
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IN WITNESS WHEREOF, the Landlord has signed these presents by its duly
authorized officer and Tenant has caused these presents to be signed by its duly
authorized officer.
CROWN/XXXXXXXX REALTY CORP.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxx, President
HYDROGENICS USA, INC.
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Xxxxxxxx Xxxxx, Secretary
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GUARANTY
FOR VALUE RECEIVED, the undersigned hereby unconditionally guarantee(s) to
any holder of this Lease the full and prompt payment of all obligations and
liabilities of Lessee as evidenced by this Lease when due by acceleration or
otherwise; agree(s) to all the terms and conditions of this Lease; and
consent(s) that from time to time, without notice to the undersigned and without
affecting any liability of the undersigned, that this Lease may be sold,
pledged, assigned or transferred (whether on foreclosure or otherwise), and that
the time for payment under this Lease may by extended or accelerated in whole or
in part, and this Lease may be renewed in whole or in part.
HYDROGENICS CORPORATION
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Xxxxxxxx Xxxxx, Vice President
Corporate Affairs
