EXHIBIT 10.22
AGREEMENT OF SALE
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THIS AGREEMENT OF SALE (this "Agreement"), is effective as of the 23rd
day of June, 1999, by and between MECHANICAL TECHNOLOGY INCORPORATED ("MTI") a
New York Corporation ("Seller"), and PLUG POWER, LLC, a Delaware Limited
Liability Company ("Purchaser").
W I T N E S S E T H:
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1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Nine Million Seven Hundred Thousand and No/100 Dollars
($9,700,000.00) (the "Purchase "Price"), that certain property commonly known as
000 Xxxxxx-Xxxxxx Xxxx and 000 Xxxxxx-Xxxxxx Xxxx in the Town of Colonie,
Latham, New York and more particularly described as follows, subject only to the
"Permitted Exceptions" (hereinafter defined);
1.1. that certain tract of real estate consisting of approximately 35.6 acres,
on which is situated two (2) office/manufacturing buildings, which real estate
is legally described in the attached Exhibit A, together with any and all and
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singular easements, covenants, agreements, rights, privileges, tenements,
hereditaments, rights of way, licenses, interests and appurtenances of any kind
thereunto now or hereafter owned by Seller and belonging or appertaining thereto
including, but not limited to, all right, title and interest of Seller in and to
any adjacent vaults, alleys, strips or gores of land, and any air, zoning or
development rights appurtenant thereunto and all right, title and interest of
Seller in and to any land lying in the bed of any street, highway, alley, road
access way, easement of avenue (whether open, closed or proposed) within, in
front of, behind, aside or otherwise adjoining the real estate legally described
in Exhibit A, and all right, title and interest of Seller in and to any award
made of to be made as a result or in lieu of condemnation (subject to the
provisions of Paragraph 6 hereof) (collectively the "968 Land"); and
1.1.2 that certain tract of real estate consisting of approximately .37
acres, on which is situated one (1) house, which real estate is legally
described in the attached Exhibit B, together with any and all and singular
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easements, covenants, agreements, rights, privileges, tenements, hereditaments,
rights of way, licenses, interests and appurtenances of any kind thereunto now
or hereafter owned by Seller and belonging or appertaining thereto including,
but not limited to, all right, title and interest of Seller in and to any
adjacent vaults, alleys, strips or gores of land, and any air, zoning or
development rights appurtenant thereunto and all right, title and interest of
Seller in and to any land lying in the bed of any street, highway, alley, road
access way, easement of avenue (whether open, closed or proposed) within, in
front of, behind, aside or otherwise adjoining the real estate legally described
in Exhibit B, and all right, title and interest of Seller in and to any award
made of to be made as a result or in lieu of condemnation (subject to the
provisions of Paragraph 6 hereof) (collectively the "950 Land"), (the "968 Land"
and the "950 Land" collectively the "Land");
1.2. all right, title and interest of Seller in and to all of the buildings,
structures and other improvements now or hereafter in, on, over or under the
Land, and to any award for damage to such buildings and improvements or any part
thereof by reason of casualty, exclusive of any furniture, furnishings,
fixtures, equipment, machinery or other personal property (subject to the
provisions of Paragraph 6 hereof) (collectively, the "Improvements"; the Land
and Improvements being collectively referred to as the "Premises"); and
1.3 all right, title and interest of Seller in and to all existing contracts,
permits, guarantees, bonds, certificates of occupancy, warranties, surveys, blue
prints, drawings, plans and specifications, to the extent available and in
Seller's possession or control (excluding computer software) related to the
Premises (the "Contracts").
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. On the "Closing Date" (as hereinafter defined), the Purchase Price,
adjusted in accordance with the prorations, shall be paid as follows:
a) Purchaser shall transfer shares of Purchaser's class A membership
interest units (the "Class A Shares") in an amount equal to $4,697,782 based
upon a par unit valuation of $6.67 per unit;
b) Purchaser shall assume all obligations of Seller under that certain
installment sale agreement by and between Seller and the Town of Colonie
Industrial Development Agency (the "XXX"), dated December 1, 1998, (the
"Installment Sale Agreement") and all other obligations of Seller in connection
with the Land, Premises and Contracts; and
c) Seller shall transfer all remaining research credits as is defined in
Purchaser's Limited Liability Company Agreement, dated June 27, 1997, as
amended.
3. TITLE COMMITMENT, SURVEY AND APPRAISAL
3.1. Attached hereto Exhibit E is a copy of a title commitment for an
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owners' standard title insurance policy issued by D'Agostino, Hoblock, Xxxxxxxx
& Xxxxxx, P.C. as agent for the Chicago Title Insurance Company (such company is
hereinafter referred to as "Initial Title Insurer") dated June 10, 1999 for the
Premises (the "Title Commitment"). For purposes of this Agreement, "Permitted
Exceptions" shall mean: (a) those matters listed on Exhibit F attached hereto;
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(b) general real estate taxes, assessments, special assessments, special
district taxes and related charges not yet due and payable; and (c) matters
caused by the actions of Purchaser. On the Closing Date, as a condition to
Purchaser's obligations hereunder, Seller shall deliver to Purchaser a 1992 ATLA
title policy in conformance with the previously delivered "Title Commitment",
subject to
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Permitted Exceptions (the "Title Policy"). Purchaser shall pay for the premiums
for the Title Policy and Purchaser shall pay for the premiums for any
endorsements to, or extended coverage on the Title Policy.
3.2 Purchaser has received a survey of the Premises prepared by C.T. Male &
Associates, dated November 30, 1998.
3.3. The obligation of Purchaser to pay various costs set forth in Paragraphs
3.1 and 3.2 shall survive the consummation of the within transaction (the
"Closing") and termination of this Agreement unless this Agreement is terminated
by reason of Seller's default.
3.4. Purchaser has received an appraisal of the Premises prepared for Key
Bank dated, October 31, 1998 (the "Appraisal").
4. PAYMENT OF CLOSING COSTS.
4.1 Purchaser shall pay for the costs of the documentary or transfer stamps to
be paid with reference to the "Deed" (hereinafter defined) and all other stamps,
intangible, transfer, documentary, recording, sales tax and surtax imposed by
law with reference to any other sale documents delivered in connection with the
sale of the Premises to Purchaser.
5. CONDITION OF TITLE.
5.1 Seller agrees to convey fee simple title to the Premises to Purchaser by a
warranty deed (the "Deed") in recordable form.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY
6.1 Except as provided in the indemnity provisions contained in Paragraph 7 of
this Agreement, Seller shall bear all risk of loss with respect to the Premises
up to the time title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Premises by fire or other casualty that is neither the direct nor indirect fault
of Purchaser, prior to the Closing Date, repair of which would cost less than or
equal to $500,000 (as reasonably determined by Seller in good faith) Purchaser
shall not have the right to terminate its obligations under this Agreement by
reason thereof, but Seller shall have the right to elect to either repair and
restore the Premises (in which case the Closing shall be adjourned by up to 90
days until completion of such restoration) or to assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of such fire or
casualty and allow as a credit against the Purchase Price an
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amount equal to the applicable insurance deductible. Seller shall promptly
notify Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Premises by fire or other casualty not caused either directly or
indirectly by Purchaser, prior to the Closing Date, repair of which would cost
in excess of $500,000 (as reasonably determined by Seller in good faith), then
this Agreement may be terminated at the option of Purchaser, which option shall
be exercised, if at all, by Purchaser's written notice thereof to Seller within
fifteen (15) business days after Purchaser receives written notice of such fire
or other casualty, and Seller's determination of the amount of such damages, and
upon the exercise of such option by Purchaser this Agreement shall become null
and void, and neither party shall have any further liability or obligations
hereunder except for those obligations expressly stated to survive termination.
In the event that Purchaser does not exercise the option set forth in the
preceding sentence, the Closing shall take place on the scheduled Closing Date
and Seller shall deliver, assign and transfer to Purchaser on the Closing Date
all insurance proceeds theretofore received by Seller and all of Seller's right,
title and interest in and to all insurance proceeds payable to Seller on account
of the fire or casualty and allow as a credit against the Purchase Price an
amount equal to the applicable insurance deductible. In the event of damage to
the Premises by fire or other casualty that is caused either directly or
indirectly by Purchaser, Purchaser shall proceed to closing on the Closing Date
set forth herein. Any insurance proceeds due to Seller in connection with the
Premises shall be paid in the following priority: (1) to compensate Seller for
its loss; (2) the remainder, if any, to Purchaser.
6.2 If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Premises or the taking or closing of any right of
access to the Premises, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Premises shall:
(i) adversely and materially impair access to the Premises; (ii) adversely and
materially impair the use of the Premises; or (iii) affect the value of the
Premises in an amount greater than $100,000 (hereinafter collectively referred
to as a "Material Event"), Purchaser may:
6.2.l terminate this Agreement by written notice to Seller, in which event all
rights and obligations of the parties hereunder with respect to the closing of
this transaction will cease; or
6.2.2 proceed with the Closing, in which event Seller shall deliver, transfer
and assign to Purchaser all amounts previously paid to Seller on account thereof
and all of Seller's right, title and interest in and to any award payable in
connection with such condemnation or eminent domain proceedings.
6.3 Purchaser shall then notify Seller, within ten (10) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise its
rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed, if
necessary, until Purchaser makes such election. If Purchaser fails to make an
election within such ten (10) business day period, Purchaser shall be deemed to
have elected to exercise its rights under Paragraph 6.2.1. Except as otherwise
provided in this Agreement, if between the date of this
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Agreement and the Closing Date, any condemnation or eminent domain proceedings
are initiated which do not constitute a Material Event, Purchaser shall be
required to proceed with the Closing, in which event Seller shall deliver,
transfer and assign to Purchaser all of Seller's right, title and interest in
and to any award payable in connection with such condemnation or eminent domain
proceedings.
7 INSPECTION, ENVIRONMENTAL WARRANITES AND CONDITIONS PRECEDENT TO CLOSING
7.1 In connection with Purchaser's review of the Premises, Seller agrees to
deliver to Purchaser copies of the most recent tax and insurance bills, utility
account numbers, and service contracts.
7.2 Seller makes no representations or warranties concerning Purchaser's use,
storage, disposal, treatment or handling of hazardous or toxic wastes (the
"Purchaser's Use"). The Seller hereby makes the following representations,
warranties; and covenants concerning Hazardous Substances: (i)(A) Except for
Purchaser's Use, no portion of the Premises or any property owned by the Seller
which is adjacent to the Premises is being used, or has ever been used at any
previous time to generate, treat, store, handle or dispose of hazardous or toxic
substances, as such term is defined by applicable federal, state or local laws
and regulations relating to hazardous waste, except in compliance with
Environmental Laws (hereinafter defined); (B) To the best of Seller's knowledge,
the soil and surface water and ground water which are a part of the Premises are
free from any solid wastes, hazardous or toxic substances or contaminant and any
discharge of sewage or effluent; and (C) To the best of Seller's knowledge, no
lien has been attached to the Premises, or any revenues therefrom as a result of
a violation of any federal, state or local laws and regulations governing
hazardous waste removal and clean-up, nor are there any governmental, judicial
or administrative actions with respect to environmental matters pending, or the
best of the Seller's knowledge threatened, which involve the Premises; (ii)
Except for Purchaser's Use, there have been no summons, citations, directives,
letters or other written communication received from any federal, state or local
agency charged with the enforcement of any environmental protection laws or
regulations which has resulted from the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of hazardous substances, as such term is
currently defined by applicable federal, state and local laws or regulations
relating to hazardous waste at the Premises; (iii) Except for Purchaser's Use,
the Premises are in compliance in all material respects with all applicable
federal, state, or local laws and regulations, including, without limitation,
those relating to hazardous and toxic substances and other environmental laws.
7.2.1 Except for Purchaser's Use, the Seller agrees to comply in all material
respects with all applicable laws, rules, regulations, and orders, relating to
hazardous waste applicable to the Premises.
7.2.2 At no expense to the Purchaser, the Seller shall promptly supply the
Purchaser with any written notices, correspondence and submissions made by the
Seller to the New
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York State Department of Environmental Conservation, the United States
Environmental Protection Agency, the United States Occupational Safety and
Health Administration, or any other local, state or federal authority that
regulates wastes. This shall not include routine correspondence or submissions
to any agency or authority.
7.2.3 Except for any claims, actions, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses (including, without
limitation, attorney and consultant fees, investigations or laboratory fees,
court costs and litigation expenses of whatever kind or nature known or unknown,
contingent or otherwise) arising out of or in any way related to Purchaser's use
of the Premises, the Seller agrees to defend, indemnify and hold harmless
Purchaser, its employees, agents, officers and directors from and against any
claims, actions, demands, penalties, fines, liabilities, settlements, damages,
costs or expenses (including, without limitation, attorney and consultant fees,
investigations or laboratory fees, court costs and litigation expenses of
whatever kind or nature known or unknown, contingent or otherwise) arising out
of or in any way related to: (i) the past or present disposal, release or
threatened release of any hazardous or toxic substances on the Premises; (ii)
any personal injury (including wrongful death or property damage, real or
personal) arising out of or related to such hazardous or toxic substances; (iii)
any lawsuit brought or threatened, settlement reached or government order given
relating to such hazardous or toxic substances; and/or (iv) any violation of
law, order, regulation, requirement, or demand of any government authority,
which are based upon or in any way related to such hazardous or toxic
substances.
7.2.4. The Seller knows of no on-site or off-site locations where hazardous or
toxic substances from the operation of any improvement or otherwise have been
stored, treated, recycled or disposed of.
7.2.5 The provisions of this Section shall be in addition to any other
obligations and liabilities the Seller may have to the Purchaser or Purchaser
may have to Seller at common law, and shall survive the transactions
contemplated herein;
7.2.6. Purchaser shall indemnify and hold harmless Seller for any claims,
actions, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, attorney and consultant fees,
investigations or laboratory fees, court costs and litigation expenses of
whatever kind or nature known or unknown, contingent or otherwise) arising out
of or in any way related to Purchaser's Use of the Premises.
7.2.7. The term "Environmental Laws" shall include all federal, state and
local statutes, codes, regulations, rules, ordinances, orders, standards,
permits, licenses, policies and requirements (including consent decrees,
judicial decisions and administrative orders) relating to the protection,
preservation, remediation or conservation of the environment or worker health or
safety, all as amended or reauthorized, or as hereafter amended or reauthorized,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. (S) 9601 et seq., the
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Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 6901 et seq.,
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the Emergency Planning and Community Right-to-Know Act ("Right-to-Know Act"), 42
U.S.C. (S) 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. (S) 7401 et seq.,
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the Federal
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Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. (S) 1251 et seq.
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the Toxic Substances Control Act ("TSCA"), 15 U.S.C. (S) 2601 et seq., the
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Safe Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. (S) 300f et
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seq., the Atomic Energy Act ("AEA"), 42 U.S.C. (S) 2011 et seq., the
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Occupational Safety and Health Act ("OSHA"), 29 U.S.C. (S) 651 et seq., and the
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Hazardous Materials Transportation Act (the "Transportation Act"), 49 U.S.C. (S)
1802 et seq.
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7.2.8. The term "hazardous substance" shall include, without limit, any
substance or material defined in 42 U.S.C. Section 9601 (as the same may be
amended from time to time), the Hazardous Materials Transportation Act (as
amended from time to time), and the New York Environmental Conservation Law or
the Resource Conservation and Recovery Act (as each may be amended from time to
time) and in any regulations adopted or publications promulgated pursuant to any
of the foregoing.
7.3 Seller has provided to Purchaser the following existing report: Phase I
Environmental Site Assessment, prepared for Seller and Key Bank by Rust
Environment & Infrastructure, dated July, 1998 (the "Existing Report").
Purchaser hereby releases Seller and the Affiliates of Seller from any liability
whatsoever with respect to the Existing Report, or, including, without
limitation, the accuracy and/or completeness of the Existing Report.
Furthermore, Purchaser acknowledges that it will be purchasing the Premises with
all faults disclosed in the Existing Report. Notwithstanding anything contained
herein to the contrary, the terms of this Paragraph 7.3 shall survive the
Closing and the delivery of the Deed and termination of this Agreement.
7.4 If Purchaser's consultants reasonably determine that, based upon their
examination of the Existing Report, a Phase II examination is necessary with
respect to all or part of the Premises, Purchaser may elect to perform a Phase
II examination, at Purchaser's sole expense. Purchaser may also elect to
examine the structural, mechanical, electrical, HVAC, plumbing and other
physical characteristics and condition of the new building constructed in 1998,
commonly known as Building One ("Building One"); and the compliance of Building
One with all housing, zoning, land-use, subdivision, life safety, and fire
codes, and codes with respect to access for persons with disabilities,
including, without limitation, the Americans with Disabilities Act, together
with building and construction laws and regulations restricting or regulating or
otherwise affecting the use, occupancy or enjoyment of the Premises. Such
examinations will be completed not later than June 18, 1999, and if not
completed will be deemed waived. The successful assignment to, and assumption
by the Purchaser of Seller's obligations under the Installment Sale Agreement
including, but not limited to Seller's debt of approximately Six Million Dollars
($6,000,000) of XXX Taxable Industrial Development Revenue Bonds (the "XXX
Loan"), is a condition precedent to Closing ("Condition Precedent"). Purchaser
has a commitment to provide a back-up letter of credit from Key Bank N.A. (the
"Key Term Sheet") to secure the XXX Loan. Purchaser agrees to complete the
assignment and assumption of the XXX Loan on terms not less favorable than those
set forth on the Key Term Sheet.
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8. CLOSING.
8.1 The Closing shall take place when the foregoing Conditions Precedent have
occurred, and the following conditions have been met, but not later than July 6,
1999 (the "Closing Date"), at which xxxx Xxxxxx shall deliver possession of the
Premises to Purchaser. Notwithstanding anything contained herein to the
contrary, Purchaser shall have the right to extend the Closing Date for a period
not to exceed two (2) weeks. In the event that the Conditions Precedent do not
occur, or the following conditions are not met due to Seller's Default, the
provisions set forth in Section 11 of this Agreement shall take effect. Prior
to the release of the Purchase Price to Seller, Purchaser shall receive the
Title Policy or marked-up commitment dated the date of the Closing Date.
8.2. On or prior to the Closing Date, Seller and Purchaser shall execute and
deliver to one another a joint closing statement and such other documents as may
be reasonably required by the Title Insurer in order to consummate the
transaction as set forth in this Agreement.
8.3. On the Closing Date, Seller shall execute and acknowledge (if
appropriate) and deliver to Purchaser the following:
8.3.1. A Warranty Deed (in the form of Exhibit G attached hereto), subject only
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to the Permitted Exceptions expressly consented to by the Purchaser;
8.3.2. An assignment of the Contracts and the intangible property, if any;
8.3.3. All documents necessary or convenient to effectuate the assumption by
Purchaser of Seller's obligations under the Installment Sale Agreement and the
Bank Documents as that term is defined in the Installment Sale Agreement;
8.3.4. All documents and instruments reasonably required by the Title Insurer
to issue the Title Policy;
8.3.5. Possession of the Premises to Purchaser;
8.3.6. Evidence of the termination of any and all management and leasing
agreements affecting the Premises, other than Permitted Exceptions;
8.3.7. Plans and specifications of the Improvements within the possession or
control of Seller prepared in connection with the construction, maintenance,
repair, management or operation of the Premises;
8.3.8. All lease files and expense records maintained at the Premises by or on
behalf of Seller in connection with the Premises;
8.3.9. The keys in Seller's possession to all entrance doors, tenant spaces,
offices and store rooms;
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8.3.10. An opinion of counsel as to the following: (i) Seller's due
incorporation; (ii) Seller's power, authority, and due authorization to enter
into this Agreement and to consummate the transactions contemplated herein; and
(iii) no action, suit, proceeding, inquiry or investigation before any court,
public board or body is pending or, to Seller's knowledge, threatened, wherein
an unfavorable decision, ruling or finding would materially and adversely affect
the validity or enforceability of this Agreement.
8.4. On the Closing Date Purchaser shall deliver: (i) $4,697,782 worth of
Purchaser's Class A Shares at $6.67 per share; (ii) the assignment documents
related to the XXX Loan; (iii) the lease for Building One, top floor, the term
of which shall run to December 31, 1999 and the lease for Building One, bottom
floor, the term of which shall run to December 31, 2000, in the form attached
hereto as Exhibit C; and (iv) an opinion of counsel as to the authority of
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Purchaser to enter into the transactions contemplated by this Agreement and to
issue the Class A Shares and assume the XXX Loan contemplated hereby.
9. [RESERVED]
10. PURCHASER'S DEFAULT.
IF THIS SALE IS NOT COMPLETED BECAUSE OF PURCHASER'S DEFAULT, PURCHASER SHALL
(i) COMPLETE CONSTRUCTION OF THE PREMISES AND SELLER SHALL CREDIT THE PURCHASER
AS PRE-PAID LEASE PAYMENTS ALL EXPENDITURES ASSOCIATED WITH THE CONSTRUCTION;
(ii) ENTER INTO A LONG-TERM LEASE WITH SELLER FOR THE PREMISES (OTHER THAN
BUILDING ONE); AND (iii) ISSUE $4,697,782 WORTH OF PURCHASER'S CLASS A SHARES AT
$6.67 PER SHARE IN EXCHANGE FOR CASH.
11. SELLER'S DEFAULT.
IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S DEFAULT, AND PURCHASER HAS
COMMENCED CONSTRUCTION ON THE PREMISES: (i) THE PURCHASER SHALL COMPLETE
CONSTRUCTION OF THE PREMISES AND THE SELLER SHALL CREDIT THE PURCHASER AS PRE-
PAID LEASE PAYMENTS ALL EXPENDITURES ASSOCIATED WITH THE CONSTRUCTION; (ii)
SELLER WILL EXECUTE A LEASE IN THE FORM ATTACHED HERETO AS EXHIBIT D; AND (iii)
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SELLER SHALL PURCHASE IN CASH $4,697,782 WORTH OF PURCHASER'S CLASS A SHARES AT
$6.67 PER SHARE.
12. PRORATIONS.
12.1. The items described in this Paragraph shall be prorated between the
parties on a per diem basis (on the basis of actual calendar days in the
relevant calendar year) so that credits and charges preceding, or on 11:59 pm on
the day preceding the Closing Date,
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shall be allocated to Seller and credits and charges for the period after 11:59
pm on the day preceding the Closing Date and all days thereafter shall be
allocated to Purchaser.
12.1.1 Real Estate and Personal Property Taxes and Special Assessments.
General real estate and personal property taxes payable for all calendar years
prior to the year in which Closing occurs shall be paid by Seller. General real
estate and personal property taxes payable for the calendar year in which
Closing occurs shall be prorated between Seller and Purchaser on the Closing
Date, with taxes attributable to the day of Closing to be paid by Purchaser. If
the Closing shall occur before the tax rate and assessment is fixed, the
apportionment of such general real estate personal property taxes at the Closing
shall be upon the basis of the latest tax rate applied to the most recently
assessed value of the Premises. Purchaser shall receive a credit against the
Purchase Price equal to Seller's prorated portion of such estimated general real
estate and personal property taxes payable for the calendar year in which the
Closing occurs. Seller shall pay on or before Closing the full amount of any
bonds or assessments against the Premises including interest payable therewith,
including any bonds or assessments that may be payable after the Closing Date as
a result of or in relation to the construction or operation of any improvements
or any public improvements that took place, or for which any assessment was
levied prior to the Closing Date. Purchaser shall pay the full amount of any
bonds or assessments incurred after the Closing Date that are not subject to the
immediately preceding sentence. Purchaser shall notify Seller in writing
promptly after such information is available to Purchaser in the event
Purchaser's credit described above is insufficient to pay Seller's share of the
actual general real estate or personal taxes for the calendar year in which
Closing occurs, and Seller shall promptly pay such deficiency to Purchaser
together with, if payment is not made within thirty (30) days after delivery of
such notification, interest thereon at the lesser of two percent (2%) over the
"prime rate" (as announced from time to time in the Wall Street Journal) per
annum or the maximum rate allowed by law, from the date Purchaser notified
Seller of the deficiency. In the event Purchaser's credit described above is in
excess of Seller's share of the actual general real estate or personal property
taxes for the calendar year in which Closing occurs, Purchaser shall promptly
pay such excess to Seller together with, if payment is not made within thirty
(30) days after the delivery of such notification, interest thereon at the
lesser of two percent (2%) over the "prime rate" (as announced from time to time
in the Wall Street Journal) per annum or the maximum rate allowed by law, from
the date Purchaser notified Seller of the excess.
12.1.2. Utility and fuel charges, including, without limitation, charges for
water, electricity, gas, gasoline, steam, oil and telephones used in connection
with the heating, cooling, lighting, maintenance and operation of the Premises
and any personal property included therein or used in connection therewith shall
be prorated as of the Closing Date. Seller shall obtain readings of all utility
meters no earlier than 30 days prior to Closing Date.
12.1.3. Annual fees for those permits and licenses disclosed in Exhibit J shall
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be prorated as of the Closing Date.
12.2. The interest on the XXX Loan shall be prorated as of the Closing Date.
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12.2.1. All other reasonable expenses normal to the operation and maintenance
of the Premises which require payments either in advance or in arrears for
periods which begin prior to the Closing Date or end thereafter shall be
apportioned between Seller and Purchaser as of 11:59 P.M. on the day preceding
the Closing Date.
12.3. Seller shall prepare or cause to be prepared statements in reasonable
detail showing separately each item prorated or adjusted pursuant to this
Agreement and a detailed reconciliation showing separately each item prorated or
adjusted pursuant to this Agreement and a detailed reconciliation of the
Prorations and Adjustments, such statements to be delivered three (3) business
days prior to the Closing and adjusted as necessary at the Closing. The parties
shall mutually agree after review thereof by Purchaser that such closing
statement accurately reflects the method of proration set forth in this
Agreement.
13. [RESERVED]
14. [RESERVED]
15. BROKER. Each of the parties hereto represents and warrants that no
broker commission, finder fee or advisory fee is due and payable in connection
with this transaction by reason of any act of the representing party. Purchaser
and Seller shall indemnify, defend and hold the other party hereto harmless from
any claim whatsoever (including without limitation, reasonable attorney's fees,
court costs and costs of appeal) from anyone claiming by or through the
indemnifying party any fee, commission or compensation on account of this
Agreement, its negotiation or the sale hereby contemplated. The indemnifying
party shall undertake its obligations set forth in this Paragraph 15 using
attorneys selected by the indemnifying party and reasonably acceptable to the
indemnified party. The provisions of this Paragraph 15 will survive the Closing
and delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1 Seller's Representations and Warranties. Seller hereby represents and
warrants to Purchaser, as follows:
16.1.1 This Agreement is in all respects a valid and legally binding
obligation, enforceable in accordance with its respective terms;
16.1.2. Seller is a New York corporation, duly organized and validly existing
under the laws of the State of New York. Seller has the power and authority to
enter into this Agreement, to perform its obligations under this Agreement, and
to consummate the transactions contemplated herein. The execution and delivery
hereof and the
11
performance by Seller of its obligations hereunder will not violate or
constitute an event of default under any material term or material provision of
any agreement, document, instrument, judgment, order or decree to which Seller
is a party or by which Seller is bound. No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under federal or state bankruptcy
laws is pending against or contemplated by Seller;
16.1.3. Seller has caused all actions required to be taken by or on behalf of
Seller to authorize Seller to make, deliver and carry out the terms of this
Agreement. No consent to the execution, delivery and performance of this
Agreement by Seller is required from any partner, board of directors,
shareholder, creditor, investor, judicial or administrative body, government
authority (excluding any governmental authority solely applicable to Purchaser)
or other person or entity, other than any such consent which already has been
unconditionally given. This Agreement is a valid and binding obligation of
Seller, enforceable in accordance with its terms, except as the same may be
affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or
equitable principles relating to or limited the rights of contracting parties
generally;
16.1.4. The execution and delivery of this Agreement by the Seller does not, and
the performance and observance by the Seller of its obligations thereunder will
not, contravene or result in a breach of (i) the Seller's corporate charter or
by-laws, (ii) any governmental requirements, or (iii) any decree or judgment
binding on the Seller, or (iv) any agreement or instrument binding on the Seller
or any of its properties, nor will the same result in the creation of any lien
or security interest under any such agreement or instrument;
16.1.5. There are no legal actions, suits, or other legal or administrative
proceedings, including condemnation cases, pending or, to the best of Seller's
knowledge, threatened against or affecting the Premises and Seller, or affecting
the validity or enforceability of this Agreement or which will affect the
Seller's ability to carry-out its obligations under this Agreement, at law or in
equity or before or by any government authority, other than the Albany-Shaker
Road extension project. Seller is not aware of any facts presently existing or
which, with the passage of time or the giving of notice, or both, which might
result in any such action, suit or other proceeding, except as disclosed to
Purchaser;
16.1.6. That there exist no violations of law or municipal ordinances affecting
Building One. Notwithstanding the foregoing, Seller covenants to cure any and
all such violations affecting Building One prior to the Closing Date;
16.1.7. The utility services necessary and sufficient for the operation of
Building One for its current use are presently available to the Premises through
dedicated public rights of way or through perpetual private easements, including
but not limited to water supply, storm and sanitary sewer, gas, electric and
telephone facilities and drainage;
16.1.8. That neither Building One nor any portion thereof is now damaged or
injured as a result of any fire, explosion, flood or other casualty or has been
the subject of any taking, and to the knowledge of the Seller, no taking is
pending or contemplated;
12
16.1.9. That all federal, state and other tax returns of the Seller required by
law to be filed have been filed, that all federal, state and other taxes,
assessments and other governmental charges upon the Seller or their properties
that are due have been paid, or are being challenged through appropriate means,
and that the Seller has set aside on their books, provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods for which
such returns have been filed;
16.1.10. (a) To Seller's knowledge, there are no service contracts, landscaping
contracts, maintenance agreements or other contracts for the provision of labor,
services, materials or supplies to or for the benefit of the Premises which will
affect or be obligations of Purchaser or of the Premises or any portion thereof
following the Closing Date, other than those listed on Exhibit H, (the "Service
---------
Contracts"), to Seller's knowledge, true and complete copies of which have been
provided to Purchaser; (b) to Seller's knowledge, except as shown on the copies
of the Service Contracts heretofore delivered there are no amendments to said
Service Contracts; and (c) to Seller's knowledge, no material uncured default
exists under any Service Contract;
16.1.11. Except as set forth on Exhibit I hereto, to Seller's knowledge, Seller
---------
has not received any written notice from any Governmental Authority that
Building One is in violation of any law, regulation, ordinance, order or other
requirements materially affecting the Premises or any portion thereof, which
notice remains uncured;
16.1.12. To Seller's knowledge, Seller has not received any written notice that
the Premises or any portion thereof is or will be imminently subject to or
affected by any condemnation, eminent domain or similar proceedings;
16.1.13. Building One is free and clear of any and all mechanics and other
liens. All contractors, subcontractors, laborers and materialmen performing work
upon or furnishing labor or materials to improve or benefit Building One at
Seller's request have been or will be paid in full by the Seller. Accordingly,
Seller agrees to indemnify and hold Purchaser harmless from any claims,
liabilities, damages or expenses that Purchaser, or its successors and assigns,
may incur by reason of any mechanic's, materialmen's, or similar liens being
lodged against Building One for work performed or materials furnished by or at
the request of Seller prior to the Closing Date. Seller will execute the
necessary affidavits and indemnities required by the title insurance company to
eliminate from the title policy or abstract of title any exception for unfiled
mechanic's liens;
16.1.14. To the best of Seller's knowledge, Building One is free from latent
defects;
16.1.15. The occupancy of Building One is within the current zoning;
16.1.16. The Premises are, as of the Closing Date, free of all encumbrances,
except the Permitted Exceptions;
16.1.17. All oil burners and other fuel-burning devices in Building One comply
with all applicable federal, state, and municipal governmental or quasi-
governmental bodies having jurisdiction as well as any applicable insurance or
fire underwriter requirements.
13
Where required, all heating devices have been properly upgraded to comply with
all pollution control laws, orders, rules and regulations, and certificates of
operation current as of the Closing Date will be delivered to Purchaser;
16.1.18. There are no tenancies affecting the Premises other than those
occupancies identified in the Permitted Exceptions;
16.1.19. The Premises consist of two (2) parcels and there is sufficient parking
with respect to Building One to meet all applicable zoning or other codes;
16.1.20. Purchaser shall have for itself, its successors and assigns,
unrestricted access by foot or by any vehicle to and from the Premises, to and
from any all unrestricted access streets, highways, alleys and ways bordering
the Premises;
16.1.21. To Seller's knowledge, there are no options or rights of first refusal
affecting the Premises or Seller's rights to complete the transactions
contemplated by this Agreement;
16.1.22. Seller has not received any written notice from any insurance company
requiring or recommending that Seller make any repairs or perform any work on or
at the Land or Building One, which has not been completed;
16.1.23. To Seller's knowledge, annexed hereto as Exhibit J is a true, accurate
---------
and complete copy of the Certificate of Occupancy in Seller's possession for
Building One;
16.1.24. To Seller's knowledge, annexed hereto as Exhibit K is a true, accurate
---------
and complete schedule of the permits and licenses (collectively, "Permits") in
Seller's possession for Building One. To Seller's knowledge, Seller has received
no notice of revocation, which revocation has not been cured or rescinded, from
any issuer of a Permit, and, Seller has no knowledge of any facts which would
lead Seller to believe that said permits will not be re-issued in the ordinary
course;
16.1.25. That the rights of way for all roads necessary for the full utilization
of Building One for its current use has either been acquired by the Seller, the
appropriate governmental authority or have been dedicated for public use and
accepted by such governmental authority to assure the complete construction and
installation thereof prior to the date upon which access to Building One via
such roads shall be necessary. All curb cuts, driveway permits and traffic
signals necessary for access to Building One are existing or have been fully
approved by the appropriate government authority;
16.1.26. The Premises have not been acquired with any proceeds from a
transaction or activity that would cause the Premises to be subject to
forfeiture, and the Seller does not know of any act or omission by any prior
owner, that would cause the Premises to be subject to forfeiture pursuant to any
law, rule or regulation.
14
16.2. Purchaser hereby represents and warrants to Seller as follows:
16.2.1. Purchaser is a Limited Liability Company, duly organized, validly
existing and in good standing under the laws of the State of Delaware; Purchaser
has the power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated herein;
neither the execution and delivery hereof by Purchaser nor the performance by
Purchaser of Purchaser's obligations hereunder will violate or constitute an
event of default under any material terms or material provision of any decree to
which Purchaser is a party or by which Purchaser is bound. No petition in
bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or
petition seeking reorganization or arrangement or other action under federal or
state bankruptcy laws is pending against or contemplated by Purchaser;
16.2.2. All action required to be taken by or on behalf of Purchaser to
authorize Purchaser to execute and deliver this Agreement have been duly taken
and all action required to be taken by or on behalf of Purchaser to authorize
Purchaser to carry out the terms of this Agreement and the transactions
contemplated hereby; including assumption of the Installment Sale Agreement and
the XXX Loan represented thereby, pursuant to the terms of the Key Term Sheet,
will be taken not later than July 6, 1999, subject to extension at the option of
the Purchaser, which extension shall not exceed two (2) weeks. No consent to the
execution, delivery and performance of this Agreement by Purchaser is required
from any partner, member, board of directors, shareholder, creditor, investor,
judicial or administrative body, Governmental Authority or other Person, other
than any such consents which already have been unconditionally given. This
Agreement is a valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except as the same may be affected by bankruptcy,
insolvency, moratorium or similar laws, or by legal or equitable principles
relating to or limiting the rights of contracting parties generally.
16.2.3. This Agreement is in all respects a valid and legally binding
obligation, enforceable in accordance with its respective terms;
16.2.4. The execution and delivery of this Agreement by the Purchaser does not,
and the performance and observance by the Purchaser of its obligations
thereunder will not, contravene or result in a breach of (i) the Purchaser's
certificate of formation or operating agreement; (ii) any governmental
requirements, or (iii) any decree or judgment binding on the Purchaser. The
execution and delivery hereof and the performance by Purchaser of its
obligations hereunder will not violate or constitute an event of default under
any material term or material provision of any agreement, document, instrument,
judgment, order or decree to which Purchaser is a party or by which Purchaser is
bound. No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement or other
action under federal or state bankruptcy laws is pending against or contemplated
by Purchaser;
16.2.5. There are no legal actions, suits, or other legal or administrative
proceedings, pending or, to the best of Purchaser's knowledge, threatened
against or affecting Purchaser, or affecting the validity or enforceability of
the Agreement or which will
15
affect the Purchaser's ability to carry-out its obligations under this
Agreement, at law or in equity or before or by any government authority.
Purchaser is not aware of any facts presently existing or which, with the
passage of time or the giving of notice, or both, that might result in any such
action, suit or other proceeding, except as disclosed to Purchaser.
16.3 On the Closing Date, Seller shall tender possession of the Premises to
Purchaser in accordance with this Agreement.
16.4. Seller covenants and agrees that from and after the date of this
Agreement until the Closing Date or earlier termination of this Agreement:
16.4.1 Seller will not, without the prior written consent of Purchaser, enter
into any new employment, management, service, maintenance or union agreements
relating to the Premises or renew or extend any contracts, unless such new
agreements and such contracts, as renewed or extended, will be cancelable by
Purchaser on not more than thirty (30) days prior notice without any costs for
such cancellation;
16.4.2. No alterations to the physical condition of the Premises will be made
without the prior written consent of Purchaser, except for (a) work required (if
any) to be performed by Seller at the request of Purchaser, and (b) restoration
work in connection with a casualty;
16.4.3. All necessary diligence will be used to keep in full force and effect
(or to renew, when necessary) all Permits, except Permits in the control or the
responsibility of the Purchaser;
16.4.4. Seller shall promptly notify Purchaser of any written notices received
by Seller from any governmental authority regarding the violation of any law
relating to Building One.
17. INDEMNIFICATION, SUBROGATION
17.1(a) The Seller shall at all times prior to the Closing Date protect and hold
the Purchaser and any director, member, officer, employee, servant or agent
thereof and persons under the Purchaser's control or supervision (collectively,
the "Purchaser's Indemnified Parties" and each a "Purchaser Indemnified Party")
harmless of, from and against any and all claims (whether in tort, contract or
otherwise), demands, expenses and liabilities for losses, damage, injury and
liability of every kind and nature and however caused, and taxes (of any kind
and by whomsoever imposed), resulting from, arising out of or in any way related
to the breach by Seller of its representations and warranties set forth in this
Agreement, other than, with respect to each Purchaser Indemnified Party, losses
arising from the gross negligence or willful misconduct of such Purchaser
Indemnified Party. The Purchaser's Indemnified Parties, jointly or severally,
shall not be liable for any damage or injury to the person or property of the
Seller or its respective directors, officers, partners, employees, agents or
servants or persons under the control or supervision of the Seller or any other
Person who may be about the Premises, due to any
16
breach by Seller of its representations and warranties set forth herein, other
than, with respect to any Purchaser Indemnified Party, the gross negligence or
willful misconduct of such Purchaser Indemnified Party. Each Purchaser
Indemnified Party, as the case may be, shall promptly notify the Seller in
writing of any claim or action brought against such Purchaser Indemnified Party
in which indemnity may be sought against the Purchaser pursuant to this Section;
such notice shall be given in sufficient time to allow the Purchaser to defend
or participate in such claim or action, but the failure to give such notice in
sufficient time shall not constitute a defense hereunder nor in any way impair
the obligations of the Seller under this Section.
(b) The indemnification and protections set forth in this Section shall
be extended to the Purchaser and its members, directors, officers, employees,
agents and servants and persons under the Purchaser's control or supervision.
17.2(a) The Purchaser shall at all times prior to the Closing Date protect and
hold the Seller and any director, member, officer, employee, servant or agent
thereof and persons under the Seller's control or supervision (collectively, the
"Seller's Indemnified Parties" and each a "Seller Indemnified Party") harmless
of, from and against any and all claims (whether in tort, contract or
otherwise), demands, expenses and liabilities for losses, damage, injury and
liability of every kind and nature and however caused, and taxes (of any kind
and by whomsoever imposed), resulting from, arising out of or in any way related
to the breach by Purchaser of its representations and warranties set forth in
this Agreement, other than, with respect to each Seller Indemnified Party,
losses arising from the gross negligence or willful misconduct of such Seller
Indemnified Party. The Seller's Indemnified Parties, jointly or severally, shall
not be liable for any damage or injury to the person or property of the
Purchaser or its respective directors, officers, partners, employees, agents or
servants or persons under the control or supervision of the Purchaser or any
other Person who may be about the Premises, due to any breach by Purchaser of
its representations and warranties set forth herein, other than, with respect to
any Seller Indemnified Party, the gross negligence or willful misconduct of such
Seller Indemnified Party. Each Seller Indemnified Party, as the case may be,
shall promptly notify the Purchaser in writing of any claim or action brought
against such Seller Indemnified Party in which indemnity may be sought against
the Seller pursuant to this Section; such notice shall be given in sufficient
time to allow the Seller to defend or participate in such claim or action, but
the failure to give such notice in sufficient time shall not constitute a
defense hereunder nor in any way impair the obligations of the Purchaser under
this Section.
(b) The indemnification and protections set forth in this Section shall
be extended to the Seller and its members, directors, officers, agents and
servants and persons under the Seller's control or supervision.
17.3 A waiver of subrogation shall be obtained by the Seller from its insurance
carrier and, consequently, the Seller waives any and all right to claim or
recover against Purchaser, its officers, employees, agents and representatives,
for loss of or damage to the Seller, the Premises, the Seller's property or the
property of others under the Seller's
17
control from any cause insured against or required to be insured against by the
provisions of this Agreement.
18. TIME OF ESSENCE. Time is of the essence with respect to each and every
covenant, agreement and obligation of the Seller under this Agreement, subject
to Purchaser's right to extend the Closing Date to a date no later than July __,
1999 as specifically set forth in Paragraph 8 herein.
19. NOTICES. Any notice or demand which either party hereto is required or may
desire to give or deliver to or make upon the other party shall be in writing
and may be personally delivered or given or made by overnight courier such as
Federal Express, by facsimile transmission addressed as follows:
TO SELLER: Mechanical Technology Incorporated
---------
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
TO PURCHASER: Plug Power, L.L.C.
------------
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
and one copy to: Xxxxxxxx & Xxxxx, P.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
subject to the right of either party to designate a different address for itself
by notice similarly given. Any notice or demand so given shall be deemed to be
delivered or made on the next business day or if sent by overnight courier, or
the same day as given if personally delivered or if sent by facsimile
transmission and received by 5:00 p.m. Eastern Standard Time. Any such notice,
demand or document may be given by each party's attorneys.
20. EXECUTION OF AGREEMENT AND LEASE. Purchaser will execute two (2) copies of
this Agreement, and forward them to Seller for execution. Seller will forward
one (1) copy of the executed Agreement to Purchaser.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of New York.
18
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. AMENDMENT. No provision of this Agreement or of any documents or instruments
entered into, given or made pursuant to this Agreement may be amended, charged,
waived, discharged, or terminated except by an instrument in writing signed by
the party against whom enforcement of the amendment, change, waiver, discharge
or termination is sought.
26. PARTIES. The covenants and agreements herein contained shall extend to and
be obligatory upon the heirs, executors, administrators, successors and assigns
of the respective parties hereto.
27. NUMBER AND GENDER OF WORDS. Words of any gender used in this Agreement shall
be held and construed to include any other gender , and words of a singular
number shall be held to include the plural and vice versa, unless the context
requires otherwise.
28. THIRD PARTIES. Nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their respective
heirs, executors, administrators, successors and assigns, any rights or remedies
under or by reason of this Agreement.
29. FURTHER ASSURANCE. Each of Seller and Purchaser will, at any time and from
time to time after the Closing Date, upon the request of the other, execute,
acknowledge and deliver or will cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers, conveyance, and
assurance as may reasonably be required to consummate the transactions described
herein. The provisions of this Paragraph shall survive the Closing.
19
30. EXHIBITS. All exhibits described in this Agreement and attached hereto are
by this reference incorporated fully herein. The term "this Agreement" shall be
considered to include all such exhibits.
31. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provisions shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provisions had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or buy it severance from this Agreement. Furthermore, in
lieu of such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
32. INTERPRETATION. The parties agree that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
hereto.
33. NO WAIVER. No failure of any party to exercise any power given such party
hereunder to insist upon strict compliance by the other party with its
obligations hereunder shall constitute a waiver of such party's right thereafter
to demand strict compliance with the terms of this Agreement.
34. ATTORNEYS' FEES. In the event of a dispute in connection with this
Agreement involving an action for damages in which the prevailing party recovers
a final judgment, the prevailing party shall be entitled to reasonable
attorneys' fees and all other expenses of litigation, up to an aggregate maximum
amount of $100,000.00 for all actions for damages arising under this Agreement,
and the attorneys' fees and all other expenses of litigation shall be included
in and made part of any such judgment.
35. WAIVER OF JURY TRIAL. The Seller hereby waives trial by jury in any
litigation in any court with respect to, in connection with, or arising out of
this Agreement, or any instrument or document delivered in connection with the
transaction, or the validity, protection, interpretation, collection or
enforcement thereof, or the relationship between the Seller and Purchaser, or
any other claim or dispute howsoever arising between the Seller and Purchaser.
20
IN WITNESS WHEREOF, Seller and Purchaser respectively have signed this
Agreement, and this Agreement is effective as of the date first written above.
MECHANICAL TECHNOLOGY INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
PLUG POWER, L.L.C.
By: /s/ Xxxx Mittlema
--------------------------
Name: Xxxx Mittlema
Title: President and Chief Executive Officer
21
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
22
EXHIBIT C
PLUG POWER, L.L.C./MECHANICAL TECHNOLOGY INCORPORATED
LEASE FOR SPACE LOCATED IN BUILDING 1
THIS AGREEMENT made this _____ day of July, 1999, between Plug Power,
L.L.C., a Delaware Limited Liability company, as Landlord, and Mechanical
Technology, Incorporated, a New York corporation, as Tenant, and
WITNESSETH: The Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the top floor of the building known as Building 1 (the
"Building"), located on approximately 35.6 acres of land at 000 Xxxxxx-Xxxxxx
Xxxx, Xxxxxx, Xxx Xxxx (the "Premises") and more fully described on the floor
plan designated as Exhibit "A" attached hereto (the "Top Floor Space"), for the
term of approximately six (6) months, to commence on July ___, 1999, and to end
on December 31, 1999, unless terminated earlier, as provided below (the "Top
Floor Term"). The Tenant may terminate the Lease for the Top Floor Space at any
time prior to the expiration of the Top Floor Term by providing the Landlord
with thirty (30) days prior written notice of termination;
WITNESSETH: The Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the bottom floor of the Building and more fully described on the
floor plan designated as Exhibit "B" attached hereto (the "Bottom Floor Space"),
for the term of approximately eighteen (18) months, to commence on July ___,
1999, and to end on December 31, 2000, unless terminated earlier, as provided
below (the "Bottom Floor Term"). (The Top Floor Term and the Bottom Floor Term,
collectively, the "Term"). The Tenant may terminate the Lease for the Bottom
Floor Space at any time prior to the expiration of the Bottom Floor Term by
providing the Landlord with thirty (30) days prior written notice of
termination;
1. RENT. Tenant shall pay the annual rent equal to $17.00 per square
foot gross for office space in the Top Floor Space (the "Top Floor Rent"),
commencing as of the closing of the transfer of the XXX debt to Plug Power from
MTI. The rent for the Top Floor Space shall be made in equal monthly
installments of Nine Thousand Eight Hundred and Ninety-One Dollars and 17/100
($9,891.17) in advance on or before the first day of each and every month during
the Top Floor Term.
Tenant shall pay the annual rent equal to $10.00 per square foot gross for
manufacturing/laboratory/office space actually occupied (the "Bottom Floor
Rent") commencing ___________, 1999. The rent for the Bottom Floor Space shall
be made in equal monthly installments of Nine Thousand Six Hundred and Seventy-
One Dollars and 67/100 ($9,671.67) in advance on or before the first day of each
and every month during the Bottom Floor Term.
-24-
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. If Tenant surrenders any space in Building 1 during the term of this
Agreement, Tenant's rent shall be adjusted downward based on the amount of
usable space actually occupied. Landlord shall be responsible for payment of
property, school and other taxes, sewer and water charges, heat, air-
conditioning, gas, electricity, oil, maintenance and repair, cleaning/janitorial
services, and garbage removal. Tenant shall be responsible for its own internal
security system.
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 Building,
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. Provided, however, that Landlord shall not be responsible for any
maintenance that is due to the negligence or neglect of Tenant.
3. OCCUPANCY. Tenant shall use and occupy the Building for no purpose
other than the conduct of Tenant's business.
4. 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
-25-
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.
5. 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 Tenant's particular use of the Premises during the Term.
6. TENANT ALTERATIONS AND IMPROVEMENTS: TRADE FIXTURES; TENANT REPAIRS:
Tenant shall obtain prior consent from Landlord for any major Tenant alterations
and improvements and any alterations, improvements or work of any kind. 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.
Any and all alterations, improvements, additions and partitions, including
the installation of trade fixtures, which may be made by Landlord upon the
Premises or the Building, 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 or the
Building by Tenant upon termination of the Lease, provided that Tenant can
accomplish such removal without damage to the Premises or the Building. Any and
all improvements, additions and partitions, including the installation of Trade
Fixtures made by Tenant, shall remain the sole and absolute property of Tenant.
Subject to all other terms of this Lease, Tenant shall take good care of
the Premises, the Building, 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 and the Building, at the end of the Term, in as good
condition as the reasonable use thereof will permit.
7. ASSIGNMENT. Tenant, successors, heirs, executors or administrators
shall not assign this agreement, or underlet or underlease the Building, 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 or the Building 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
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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.
8. 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 Premises, Landlord
may remove and replace same at Landlord's expense. Landlord shall not remove the
existing "MTI" sign in front of the building until Tenant has vacated the
Premises. Landlord shall supply the exterior monument sign for the Building to
which Tenant may affix its name. All signage must conform to applicable Town of
Colonie Sign Law.
9. 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 specifi ed in subparagraphs
"(a)" and "(b)" above.
10. REMEDIES. Upon an event of Default, Landlord may immediately, or at
any time thereafter, re-enter the Premises and the Building and remove all
persons and all or any property therefrom, either by summary dispossession
proceedings, or by any suitable action or proceeding at law, and repossess and
enjoy the Premises and the Building together with all additions, alterations and
improvements. In any such case, Landlord may either relet the Building or any
part or parts thereof for Landlord's own account, or may at Landlord's option,
relet the Building 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,
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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 Building for Landlord's own account, then, whether
or not the Building 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 Building or any action to recover Rent
or damages hereunder.
11. ACCESS TO BUILDING. Tenant agrees that Landlord and Landlord's agents
and other representatives shall have the right to enter into and upon the
Building, 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.
12. 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.
13. 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 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
Building is 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 Building untenantable, in whole or in part, there
shall be an apportionment of the Rent until the
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damage has been repaired. Consideration shall be given to delays caused by
strikes, adjustment of insurance and other causes beyond Landlord's control.
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 Building 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.
14. 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.
15. LIABILITY. Tenant 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 (i) be caused by or be due
to the negligence of Tenant, its agents or employees, or (ii) is attributable to
a breach of a representation or warranty of Tenant under that certain Agreement
of Sale dated as of June __, 1999 by and between Landlord, as purchaser, and
Tenant as seller, relating to the conveyance of the Premises.
16. INDEMNIFICATION. Except for any injury or damage to persons or
property on the Premises or Building 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 18, 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:
-29-
1) the use or occupancy of the Premises and Building by Tenant or any
person claiming under Tenant;
2) any activity, work or thing done or permitted by Tenant in or about
the Premises or the Building;
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 or the Building 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.
17. 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 Three
Million Dollars ($3,000,000). 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.
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Certificate of insurance, naming the Landlord as additional insured, will
be delivered to the Landlord prior to the Tenant's occupancy of the Building.
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.
18. LIABILITY INSURANCE. Tenant shall carry public liability insurance in
the amounts of not less than One Million Dollars ($1,000,000) per accident or
occurrence on account of injury to persons and Two Million Dollars ($2,000,000)
aggregate on account of injury to the Building or property of others and shall
name Landlord as an additional insured therein and shall furnish to Landlord a
certificate of said insurance.
19. 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
Building 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 Building 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.
20. 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.
21. SUBORDINATION. This instrument shall not be a lien against the
Premises or the Building with respect to any bank, insurance company or other
lending institution mortgages that are now on or that hereafter may be placed
against the Premises or the Building, 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 may be 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
-31-
representatives, to cancel this Lease without incurring any expense or damage
and the Term hereby granted is expressly limited accordingly.
22. 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.
23. 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 Building without hindrance or
disturbance by Landlord or those claiming by, through or under Landlord, or any
other person or entity whatsoever.
24. 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.
25. NOTICES. Any notice given Tenant shall be in writing and sent by
registered or certified mail to Tenant at:
Mechanical Technology, Incorporated
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
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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:
Plug Power, L.L.C.
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.
26. 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.
27. 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
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.
-33-
IN WITNESS WHEREOF, Landlord and Tenant respectively have signed and sealed
this Lease as of the day and year first above written.
PLUG POWER, L.L.C.
By: ______________________________
Name:
Title:
MECHANICAL TECHNOLOGY, INCORPORATED
By: ______________________________
Its:
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
EXHIBIT D
MECHANICAL TECHNOLOGY INCORPORATED/PLUG POWER, L.L.C.
LEASE FOR THE PREMISES LOCATED AT 000 XXXXXX-XXXXXX XXXX
THIS AGREEMENT made this _____ day of July, 1999, between Mechanical
Technology Incorporated, a New York corporation, as Landlord, and Plug Power,
L.L.C., a Delaware Limited Liability company, as Tenant, and
WITNESSETH: That pursuant to an Agreement of Sale dated June ___, 1999,
Plug Power, L.L.C. (the "Tenant") agreed to purchase and Mechanical Technology
Incorporated (the "Landlord") agreed to sell that certain property commonly
known as 000 Xxxxxx-Xxxxxx Xxxx in the Town of Colonie, Latham, New York, which
consists of approximately 35.6 acres, on which is situated two (2)
office/manufacturing buildings (the "Premises").
WITNESSETH: That the transfer as contemplated in the Agreement of Sale
cannot be completed;
WITNESSETH: The Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the building to be constructed by Tenant at 000 Xxxxxx-Xxxxxx
Xxxx, commonly known as Building 2 ("Building 2"), as more fully described in
Exhibit A attached hereto, for the term of twenty (20) years, to commence on
________, 1999, and to end on December 31, 2019, unless terminated earlier, as
provided below ("Term"), upon the following terms and conditions;
1. RENT. Tenant shall pay an annual base rent of Five Dollars and 40/100
($5.40) per square foot for the use of Building 2 and the use of approximately
four (4) acres of land on which Building 2 and the parking associated with
Building 2 shall be located (the "Land"). Tenant and Landlord have agreed that
the Base Rent shall be calculated on the basis of Fifty Thousand (50,000) square
feet ($270,000 per annum) (the "Base Rent"), commencing _________, 1999, for
the Term of the Lease. In addition to the Base Rent, the Tenant shall pay the
additional Expenses (as hereinafter defined), relating to Building 2.
"Expenses" shall include Utilities; Taxes; Parking; Landscaping; Snow Removal;
and Garbage Removal. ("Base Rent" and "Expenses," collectively "Lease
Payments"). For purposes of this Agreement, except where otherwise indicated,
"Pro Rata Share" shall be determined by multiplying the applicable Expense by
the following ratio:
-36-
Number of employees of Tenant*
--------------------------------------------------------------------------------
Number of employees of Tenant + Number of employees of Landlord*
*The "Number of employees of Tenant" and the "Number of employees of Landlord"
shall mean the number of employees working a single shift, in a single day.
A. UTILITIES. Tenant shall arrange for service and pay its actual gas
and electric charges only, based on separate meters to be installed to meter
Tenant's use, exclusive of any use by the Landlord. Tenant shall pay for the
installation of meters in the space actually used by Tenant. Landlord shall pay
for the installation of meters on the space actually used by Landlord.
B. TAXES: Until Building 2 is reassessed, Tenant shall pay its share of
the real property taxes attributable to the former Building 2. For the remainder
of the Lease Term, Tenant shall pay its share of the actual real property taxes
attributable to Building 2, based upon the assessed valuation of Building 2, as
provided by the Town Assessor for the Town of Colonie. Nothing shall prevent the
Tenant from challenging such assessment. Landlord agrees to cooperate in
pursuing any challenge to the assessed value of Building 2.
C. PARKING. Tenant shall pay for its Pro Rata Share of the actual costs
for maintenance of the parking on the Premises.
D. LANDSCAPING. Tenant shall pay for its Pro Rata Share of actual costs
necessary for the basic groundskeeping relating to the Premises.
E. SNOW REMOVAL: Tenant shall pay for its Pro Rata Share of snow removal
expenses. In the event that Tenant adds a second or third shift, in addition to
the employees that work at the Premises on a daily basis, the number of
employees in the second and third shifts, if any, will be added to the number of
employees working at the Premises on a daily basis, in order to calculate the
Tenant's Pro Rata Share of snow removal expenses.
F. GARBAGE REMOVAL: Tenant shall arrange for and pay for waste removal
services for Building 2.
G. To the extent not provided herein, Tenant shall pay its Pro Rata Share
of Landlord's actual expenses relating to Tenant's use of Building 2.
2. LANDLORD DUTIES. Landlord 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
-37-
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.
Tenant, at its sole cost and expense, shall be responsible for the care and
maintenance of Building 2. Provided, however, that Tenant shall not be
responsible for the costs of any maintenance that results from the negligence
of, or is caused by Landlord.
3. OBLIGATION OF LANDLORD TO REIMBURSE TENANT FOR CONSTRUCTION
EXPENDITURES. Landlord shall have the following obligations with respect to
Tenant's construction of Building 2 and other alterations and improvements of
the Premises:
(a) Landlord acknowledges that Tenant has heretofore commenced
construction of Building 2, as more fully described in Exhibit A
attached hereto, and further acknowledges that Tenant shall complete
the construction of Building 2. Landlord will credit Tenant for the
actual costs of the construction of Building 2, as provided herein,
excepting any specialized fit-up. Specialized fit-up shall be
undertaken at Tenant's expense;
(b) Landlord acknowledges that Tenant has heretofore made considerable
expenditures to construct Building 2. Upon execution of this Lease,
Landlord agrees to credit Tenant as pre-paid Lease Payments, all
expenditures associated with the construction of Building 2 to the
date of execution of the Lease;
-38-
(c) Landlord acknowledges that Tenant shall continue to make considerable
expenditures to complete the construction of Building 2 and/or to make
other alterations and improvements to Building 2. Landlord agrees to
credit Tenant as pre-paid Lease Payments, all expenditures associated
with the construction of Building 2, excluding any specialized fit-up;
(d) Tenant acknowledges that Landlord shall own Building 2 and Tenant
shall transfer all of its right, title and ownership interest, subject
to the terms of this Agreement, in Building 2 to Landlord.
4. OCCUPANCY. Tenant shall use and occupy the Premises for no purpose
other than the conduct of Tenant's business. Tenant shall have the right to
terminate this Agreement upon Ninety (90) days prior written notice, with or
without cause.
5. PARKING. Tenant shall pay for its Pro Rata Share of any required
parking lot maintenance, including re-surfacing of the parking lots and lighting
repairs/modification. Tenant shall construct sufficient parking, as defined by
the Town of Colonie Building Code, for the use of Building 2, as well as the
replacement of parking lot space lost upon the construction of Building 2, at
its sole cost and expense. Landlord will be responsible for the maintenance of
such parking lots and will be reimbursed for such maintenance as provided
herein. Tenant will be entitled to use the parking spaces around Building 2, and
Landlord will be responsible for maintaining sufficient parking for the
Premises. 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. Tenant shall provide
Landlord with copies of any government orders or notices that it receives
connected with the Premises. Tenant will not occupy Building 2 until Building 2
complies with local building codes and a temporary certificate of occupancy for
Building 2 has been issued.
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 Building 2 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
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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 2. 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
Building 2 and fixtures, make good any injury or breakage done by Tenant or
Tenant's agents, employees or visitors, and shall quit and surrender Building 2,
at the end of the Term, 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 Building 2, 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, 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
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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 dispossession 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
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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. DEFAULT BY LANDLORD. In the event that the Landlord shall sell or
otherwise dispose of Building 2, Landlord shall apply the proceeds of such sale
(less expenses) to the fulfillment of the covenants of Tenant herein and the
balance, if any, shall be paid to Tenant up to an amount equal to any credit due
to Tenant in consideration for the construction of Building 2 as set forth in
paragraph 3 herein.
In the event of a breach or default or threatened breach or default by the
Landlord of any term or condition of this Agreement, the Tenant, in addition to
any other rights and remedies available at law or in equity and without the
necessity of proving actual damages or posting a bond or similar security, shall
have the immediate right to cancel this Agreement without further obligation to
the Landlord, and shall be entitled to injunctive relief including, but not
limited to, specific performance with respect to the breach or default or
threatened breach or default, and shall also be entitled to receive damages,
including but not limited to consequential, compensatory, and incidental damages
resulting therefrom. A breach or default or threatened breach or default by the
Landlord of any term or condition of this Agreement shall not relieve the
Landlord of its obligations to provide compensation to the Tenant pursuant to
this Agreement. Upon termination of this Agreement resulting from a breach by
the Landlord of any term or condition of this Agreement, in addition to damages,
specific performance and/or other equitable relief, the Landlord shall pay the
Tenant any credit due to Tenant in consideration for the construction of
Building 2 as set forth in paragraph 2 herein.
13. 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.
14. INABILITY TO PERFORM. Except as set forth herein, this Lease and the
obligation of Tenant to pay Lease Payments 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
-42-
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.
15. DESTRUCTION. In the case of damage, by fire or other action of the
elements, to Building 2, 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 Base Rent shall be apportioned to the time of the damage and Tenant
shall be reimbursed for for any prepaid Lease Payments for the remainder of the
Term. 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
Building 2 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 Building 2 if there is
substantial damage by fire or other casualty. Landlord or Tenant may cancel
this Lease within Thirty (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 Thirty (30) days after Landlord's/Tenant's
cancellation notice to Landlord/Tenant. Tenant must deliver the Building 2 to
Landlord on or before the cancellation date in the notice and pay all Lease
Payments due to the date of the fire or casualty, and Tenant shall be reimbursed
for any prepaid Lease Payments for the remainder of the Term. 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.
16. 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
-43-
said date. Tenant shall have no claim against Landlord for the value of any
unexpired Term of this Lease, except for any prepaid Lease Payments for the
remainder of the Term.
17. 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 2 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.
18. 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 20, 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 Building 2
by Tenant or any person claiming under Tenant;
2) any activity, work or thing done or permitted by Tenant in or about
the Premises, or Building 2;
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.
19. 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:
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1) Bodily injury and property damage liability insurance,
with a combined single occurrence limit of not less than Three
Million Dollars ($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 Five Hundred Thousand Dollars ($500,000)
combined bodily injury and property damage.
A 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.
20. LIABILITY INSURANCE. Tenant shall carry public liability insurance in
the amount of One Million Dollars ($1,000,000) per occurrence and Two Million
Dollars ($2,000,000) aggregate covering the Premises and shall name Landlord as
an additional insured therein and shall furnish to Landlord a certificate of
said insurance.
21. 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
Building 2 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 Building 2 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.
-45-
22. 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.
23. 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 may be 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.
24. 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 Lease
Payments 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.
25. 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 Building 2 without hindrance or
disturbance by Landlord or those claiming by, through or under Landlord, or any
other person or entity whatsoever.
26. 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.
27. NOTICES. Any notice given Tenant shall be in writing and sent by
registered or certified mail to Tenant at:
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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.
28. 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.
29. 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
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.
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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: ___________________________
Its:
PLUG POWER, L.L.C.
By: ___________________________
Name:
Title:
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of _________________ in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
___________________________ ____________________________________________,
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.
______________________________
NOTARY PUBLIC
EXHIBIT F
Permitted Exceptions
--------------------
The Permitted Exceptions are listed in Schedule B of the Commitment for
Title Insurance, Exhibit "B" attached hereto.
This Indenture Made the day of June Nineteen Hundred and Ninety-Nine
Between
MECHANICAL TECHNOLOGY INCORPORATED, a Corporation organized under the laws of
the State of New York, located at 000 Xxxxxx-Xxxxxx Xxxx, Xxxx xx Xxxxxxx,
Xxxxxx of Albany and State of New York,
the party of the first part, and
PLUG POWER, LLC, a Limited Liability Corporation organized under the laws of the
State of Delaware, located at 000 Xxxxxx-Xxxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxx of
Albany and State of New York,
the party of the second part.
Witnesseth, that the party of the first part, in consideration of ONE and No/100
Dollar ($1.00) lawful money of the United States, and other good and valuable
consideration paid by the party of the second part, does hereby grant and
release unto the party of the second part, the successors and assigns of the
party of the second part forever,
ALL that certain tract, piece or parcel of land with the buildings thereon
erected, situate, lying and being in the Town of Colonie, County of Albany,
State of New York, bounded and described as follows:
BEGINNING at a point in the westerly line of the Xxxxxx-Xxxxxx Xxxx (Xxxxxx
Xxxx Xx. 000) at a point of intersection of the division line between the herein
described lands on the North and the lands now or formerly of Mechanical
Technology, Inc. (Book 2214 Page 845) on the South, and running thence South 79
degrees 44' West 161.40 feet to a point; thence South 11 degrees 59' East 195.00
feet to a point; thence South 11 degrees 36' East 152.84 feet to a point in the
northerly line of lands now or formerly of British American Development Corp.
(Tax ID No. 18.00-1-17.1); thence North 86 degrees 15' West 1,023.97 feet to a
point in the easterly line of lands now or formerly of Xxxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx (Book 2364 Page 652); thence North 19 degrees 17' East 425.54
feet to a point; thence North 42 degrees North 11' West 739.06 feet to a point
in the easterly line of lands now or formerly of Pepper Xxxxx Inc. (Book 2448
Page 600); thence North 35 degrees 40' East 507.58 feet to a point in the
southerly line of lands now or formerly of Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx Xxx
Xxxxxxxx (Book 2331 Page 645); thence North 82 degrees 29' East 271.04 feet to a
point; thence North 80 degrees 11' East 149.78 feet to a point; thence North 74
degrees 23' East 104.24 feet to a point in the southerly line of lands now or
formerly of Xxxxxxx Xxxxxx & Xxxxx Xxxxxx (Book 2235 Page 1139); thence South 56
degrees 05' East 762.30 feet to a point in the westerly line of Albany Shaker
Road (1990 Boundary); thence along the westerly line of
Albany Shaker Road the following four courses; 1) South 20 degrees 58' West
29.21 feet, 2) South 03 degrees 07' West 70.98 feet, 3) South 02 degrees 14'
West 92.82, 4) South 04 degrees 06' East 533.52 feet to the point and place of
beginning;
BEING AND INTENDED TO BE the same premises as were conveyed to the said
Mechanical Technology Incorporated by deed from Industrial Park Development
Corporation dated September ______, 1974 and recorded in the Albany County
Clerk's Office on October 16, 1974 in Book 2089 of Deeds at Page 299.
SUBJECT TO covenants and restrictions of record affecting the premises.
TOGETHER with all right, title and interest, if any, of the party of the
first part in and to any streets and roads abutting the above described premises
to the center lines thereof; TOGETHER with the appurtenances and all the estate
and rights of the party of the first part in and to said premises; TO HAVE AND
TO HOLD the premises herein granted unto the party of the second part, the heirs
or successors and assigns of the party of the second part forever.
AND the party of the first part, in compliance with Section 13 of the Lien
Law, covenants that the party of the first part will receive the consideration
for this conveyance and will hold the right to receive such consideration as a
trust fund to be applied first for the purpose of paying the cost of the
improvement and will apply the same first to the payment of the cost of the
improvement before using any part of the total of the same for any other
purpose.
AND the party of the first part covenants as follows: that said party of
the first part is seized of the said premises in fee simple, and has good right
to convey the same; that the party of the second part shall quietly enjoy the
said premises; that the said premises are free from encumbrances, except as
aforesaid; that the party of the first part will execute or procure any further
necessary assurance of the title to said premises; and that said party of the
first part will forever warrant the title to said premises.
The word "party" shall be construed as if it read "parties" whenever the
sense of this indenture so requires.
IN WITNESS WHEREOF, the party of the first part has duly executed this deed
the day and year first above written.
Corporation: MECHANICAL TECHNOLOGY INCORPORATED
By: __________________________________________
Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
Corporation: PLUG POWER, L.L.C
By: ___________________________________
Xxxx Xxxxxxxxx
Title: Chief Executive Officer
STATE OF NEW YORK
COUNTY OF ALBANY
On this ___ day of ____________, 1999, before me came XXXXXXX X. XXXXXXX,
to me personally known, who being duly sworn, did depose and say that she
resides at Castleton in the County of Rensselaer and that she is the CHIEF
FINANCIAL OFFICER of MECHANICAL TECHNOLOGY INCORPORATED, the corporation
described in and which executed the above instrument, that she signed her name
thereto by order of the Board of Directors of said Corporation.
___________________________________
Notary Public
STATE OF NEW YORK
COUNTY OF ALBANY
On this ___ day of ____________, 1999, before me came XXXX XXXXXXXXX, to me
personally known, who being duly sworn, did depose and say that he resides at
__________ in the County of Albany and that he is the CHIEF EXECUTIVE OFFICER of
PLUG POWER, L.L.C., the Limited Liability Company described in and which
executed the above instrument, that he signed his name thereto by order of the
Board of Directors of said Company.
___________________________________
Notary Public
"EXHIBIT H"
This Indenture Made the day of June Nineteen Hundred and Ninety-Nine
Between
MECHANICAL TECHNOLOGY INCORPORATED, a Corporation organized under the laws of
the State of New York, located at 000 Xxxxxx-Xxxxxx Xxxx, Xxxx xx Xxxxxxx,
Xxxxxx of Albany and State of New York,
the party of the first part, and
PLUG POWER, LLC, a Limited Liability Corporation organized under the laws of the
State of Delaware, located at 000 Xxxxxx-Xxxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxx of
Albany and State of New York,
the party of the second part.
Witnesseth, that the party of the first part, in consideration of ONE and No/100
Dollar ($1.00) lawful money of the United States, and other good and valuable
consideration paid by the party of the second part, does hereby grant and
release unto the party of the second part, the successors and assigns of the
party of the second part forever,
ALL THAT TRACT PIECE OR PARCEL OF LAND, situate in the Town of Colonie,
Albany County, New York, lying along the Westerly side of the Albany-Shaker
Road, and further bounded and described as follows:
BEGINNING at an iron pipe in the westerly line of the Albany-Shaker Road
distant North 11 degrees 21' West, 95 feet from an iron pipe in the
northeasterly corner of the lands now or formerly of Xxxxxx XxXxxx and runs
thence along the westerly side of the Albany-Shaker Road, north 11 degrees 21'
West, 100.0 feet to an elm tree; thence along the southerly line of lands now
or formerly of Xxxx Male, south 80 degrees 22' West, 163.0 feet to an iron pipe,
thence south 11 degrees 21' East, 100.0 feet to an iron pipe; thence through the
lands now or formerly of Xxxxxx XxXxxxx, north 80 degrees 22' East, 163.0 feet
to the point or place of beginning and containing about 0.374 of an acre of
land. The above bearings being as surveyed by C.T. Male Associates, Xxxxxxx X.
Male, Jr. L.S., June 7, 1956.
SUBJECT TO covenants and restrictions of record affecting the premises.
TOGETHER with all right, title and interest, if any, of the party of the
first part in and to any streets and roads abutting the above described premises
to the center lines thereof; TOGETHER with the appurtenances and all the estate
and rights of the party of the first part in and to said premises; TO HAVE AND
TO HOLD the premises herein granted unto the party of the second part, the heirs
or successors and assigns of the party of the second part forever.
AND the party of the first part, in compliance with Section 13 of the Lien
Law, covenants that the party of the first part will receive the consideration
for this conveyance and will hold the right to receive such consideration as a
trust fund to be applied first for the purpose of paying the cost of the
improvement and will apply the same first to the payment of the cost of the
improvement before using any part of the total of the same for any other
purpose.
AND the party of the first part covenants as follows: that said party of
the first part is seized of the said premises in fee simple, and has good right
to convey the same; that the party of the second part shall quietly enjoy the
said premises; that the said premises are free from encumbrances, except as
aforesaid; that the party of the first part will execute or procure any further
necessary assurance of the title to said premises; and that said party of the
first part will forever warrant the title to said premises.
The word "party" shall be construed as if it read "parties" whenever the
sense of this indenture so requires.
IN WITNESS WHEREOF, the party of the first part has duly executed this deed
the day and year first above written.
Corporation: MECHANICAL TECHNOLOGY INCORPORATED
By: __________________________________
Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
Corporation: PLUG POWER, L.L.C
By: __________________________________
Xxxx Xxxxxxxxx
Title: Chief Executive Officer
STATE OF NEW YORK
COUNTY OF ALBANY
On this ____ day of ___________, 1999, before me came XXXXXXX X. XXXXXXX,
to me personally known, who being duly sworn, did depose and say that she
resides at Castleton in the County of Rensselaer and that she is the CHIEF
FINANCIAL OFFICER of MECHANICAL TECHNOLOGY INCORPORATED, the corporation
described in and which executed the above instrument, that she signed her name
thereto by order of the Board of Directors of said Corporation.
________________________
Notary Public
STATE OF NEW YORK
COUNTY OF ALBANY
On this ____ day of __________, 1999, before me came XXXX XXXXXXXXX, to me
personally known, who being duly sworn, did depose and say that he resides at
________ in the County of Albany and that he is the CHIEF EXECUTIVE OFFICER of
PLUG POWER, L.L.C., the Limited Liability Company described in and which
executed the above instrument, that he signed his name thereto by order of the
Board of Directors of said Company.
________________________
Notary Public
