COMMERCIAL LEASE This Lease, made and entered into, this 12th day of October, 2007 by and between Pershing Properties, LLC
Exhibit
10.13
|
This
Lease, made and
entered into, this 12th day of October,
2007
by
and
between Pershing
Properties, LLC
|
||
|
Parties
|
hereinafter
called Lessor/Landlord and
Hereinafter
called Lessee/Tenant
WITNESSETH,
That the said Lessor for and in consideration of the rents, covenants
and
Agreements hereinafter mentioned and hereby agreed to be paid, kept
and
performed by Said Lessee, or Lessees, successors and assigns, has
leased
and by these presents does lease To said Lessee the following described
premises, situated in the
County of
St.
Louis
State
of Missouri, to-wit:
|
|
|
Premises
|
7386
Pershing
Sf.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Approximately
1,800 square feet on the first floor and approximately 700 square
feet
basement storage area subject to dampness.
|
|
|
Use
of
Premises
|
To
have and to hold the same, subject to the conditions herein contained,
and
for no other purpose or business than that of
General
office
|
|
|
Term
and
Rental
|
for
and during the term of Three
Years
commencing
on the First day available for
occupancy
and
ending on the Last day of October
2010 (expected to be Nov. 15, 2007)
At
the yearly rental of Twenty One Thousand
Six Hundred and No/100 ($21,600.00) Dollars
payable
in advance in equal monthly installments of One Thousand Eight
Hundred and No/100 ($1,800.00) Dollars
If
the monthly rent which is due on the first of the month is not received
in
Agents office by the fifth day of the month, then a penalty of 5%
of
monthly rent must be included.
on
the First day of
each and every month during the said term.
|
|
|
Assignment
or
Sub-Letting
|
This
lease is not assignable, nor shall said premises or any part thereof
be
sublet, used or permitted to be used for any purpose other that above
set
forth without the written consent of the Lessor endorsed hereon;
and if
this lease is assigned or the premises or any part thereof sublet
without
the written consent of the Lessor, or if the Lessee shall become
the
subject of a court proceeding in bankruptcy or liquidating receivership
or
shall make an assignment for the benefit of creditors, this lease
may be
such fact or unauthorized act be cancelled at the option of the Lessor.
Any assignment of this lease or subletting of said premises or any
part
thereof with the written consent of the Lessor shall not operate
to
release the Lessee from the fulfillment on Lessee’s part of the covenants
and agreements herein contained to be by said Lessee performed, nor
authorize any subsequent assignment or subletting without the written
consent of the Lessor.
|
|
|
Repairs
and
Alterations
|
All
repairs and alterations deemed necessary by Lessee shall be made
by said
Lessee at Lessee’s costs and expense with the consent of Lessor; and all
repairs and alterations so made shall remain as a part of the realty;
all
plate and other glass now in said demised premises is at the expense
of
said Lessee.
The
Lessor reserves the right to prescribe the form, size, character
and
location of any and all awnings affixed to and all signs which may
be
placed or painted upon any part of the demised premises, and the
Lessee
agrees not to place any awning or sign on any part of the demised
premises
without the written consent of the Lessor, or to bore or cut into
any
column, beam or any part of the demised premises without the written
consent of Lessor. The Lessee and all holding under said Lessee agrees
to
use reasonable diligence in the care and protection of said premises
during the term of this lease, to keep the water pipes, AND sewer
drains
in good order and repair and to surrender said premises at the termination
of this lease in substantially the same and in as good condition
as
received, ordinary war and tear expected.
The
Lessee agrees to keep said premises in good order and repair and
free from
any nuisance or filth upon or adjacent thereto, and not to use or
permit
the use of the same or any part thereof for any purpose forbidden
by law
or ordinance now in force or hereafter enacted in respect to the
use
occupancy of said premises. The Lessor or legal representatives may,
at
all reasonable hours, enter upon said premises for the purpose of
examining the condition thereof and making such repairs as Lessor
may see
fit to make.
If
the cost of insurance to said Lessor on said premises shall be increased
by reason of the occupancy and use of said demised premises by said
Lessee
or other person under said Lessee, all such increase over the existing
rate shall be paid by said Lessee to said Lessor on demand. The Lessee
agrees to pay double rent for each day the Lessee, or an one holding
under
the Lessee, shall retain the demised premises after the termination
of
this lease, whether by limitation or forfeiture.
|
|
|
Damage
To
Tenants
Property
|
Lessor
shall not be liable to said Lessee or any other person or corporation,
including employees, for any damage to their person or property caused
by
water, rain, snow, frost, fire, storm and accidents, or by breakage,
stoppage or leakage of water, gas, heating and sewer pipes or plumbing,
upon, about or adjacent to said premises.
The
destruction of said building or premises by fire, or the elements,
or such
material injury thereto as to render said premises unquestionably
untenantable for 90 days, shall at the option of said
Lessor or Lessee produce and work a termination of this
lease.
If
the Lessor and Lessee cannot agree as to whether said building or
premises
are unquestionably untenantable for 90 days, the fact
shall be determined by arbitration; the Lessor and the Lessee shall
each
choose an arbitrator within five days after either has notified the
other
in writing of such damage, the two so chosen, before entering on
the
discharge of their duties, shall elect a third, and the decision
of any
two of such arbitrators shall be conclusive and binding upon both
parties
hereto.
If
it is determined by arbitration, or agreement between the Lessor
and the
Lessee, that said building is not unquestionably untenantable for
90 days, then said Lessor must restore said building
at
Lessor’s own expense, with all reasonable speed and promptness, and I such
case a just and proportionate part of said rental shall be abated
until
said premises have been restored.
Failure
on the part of the Lessee to pay any installment of rent or increase
in
insurance rate promptly as above set out, as and when the same becomes
due
and payable, or failure of the Lessee promptly and faithfully to
deep and
perform each and every covenant, agreement and stipulation herein
on the
part of the Lessee to be kept and performed, shall at the option
of the
Lessor cause the forfeiture of this lease.
Possession
of the within demised premises and all additions and permanent
improvements thereof shall be delivered to Lessor upon ten days’ written
notice that Lessor has exercised said option, and thereupon Lessor
shall
be entitled to and may take immediate possession of the demised premises,
any other notice or demand being hereby waived.
Any
and all notices to be served by the Lessor upon the Lessee for any
breach
of covenant of this lease, or otherwise, shall be served upon the
Lessee
in person, or left with anyone in charge of the premises, or posted
upon
some conspicuous part of said premises.
Said
Lessee will quit and deliver up the possession of said premises to
the
Lessor or Lessor’s heirs, successors, agents or assigns, when this lease
terminates by limitation or forfeiture, with all window glass replaced,
if
broken, and with all keys, locks, bolts, plumbing fixtures, elevator,
sprinkler, boiler and heating appliances in as good order and condition
as
the same are now, or may hereafter be made by repair in compliance
with
all covenants of this lease, save only the wear thereof from reasonable
and careful use.
|
|
|
Re-Entry
|
But
it is hereby understood, and Lessee hereby covenants with the Lessor,
that
such forfeiture, annulment or voidance shall not relieve the Lessee
from
the obligation of the Lessee to make the monthly payments of rent
hereinbefore reserved, at the times and in the manner aforesaid;
and in
case of any such default of the Lessee, the Lessor mar re-let the
said
premises as the agent for and in the name of the Lessee at any rental
readily obtainable, applying the proceeds and avails thereof, first,
to
the payment of such expense as the Lessor may be put to in re-entering,
and then to the payment of said rent as the same may from time to
time
become due, and toward the fulfillment of the other covenants and
agreements of the Lessee herein contained, and the balance, if any,
shall
be paid to the Lessee; and the Lessee hereby covenants and agrees
that if
the Lessor shall recover or take possession of said premises as aforesaid,
and be unable to re-let and rent the same so as to realize a sum
equal to
the rent hereby reserved, the Lessee shall and will pay to the Lessor
any
and all loss of difference of rent for the residue of the term. The
Lessee
hereby give to the Lessor the right to place and maintain its usual
“for
rent” signs upon the demised premises, in the place that the same are
usually displayed on property similar to that herein demised, for
the last
thirty days of this lease.
The
provisions of the addendums attached hereto are incorporated herein
by
reference. Exhibit A, Exhibit B and Exhibit
C
Lessee
will be responsible for their own gas and electric and maintenance
of
interior of space to include replacing light bulbs and cleaning.
Lessee
will be allowed to use trash service of building (University City)
as long
as the amount of trash is not excessive. If it becomes excessive
the
Lessee must pay for their own trash service.
Their
will be an annual adjustment of the base rent on the anniversary
date of
lease of 3% per year.
Parking
for space will be used in conjunction with other tenants of the building.
Four (4) spaces.
Lessee
must obtain an occupancy permit from University City otherwise lease
shall
become null and void.
Lessee
will have option of renewing this lease for an additional 2 years
providing Lessee notifies Lessor in writing 90 days prior to the
expiration of primary term - all terms & conditions remain the
same.
First
rental payment is due when Lessee received occupancy permit.
|
|
|
No
Constructive
Waiver
|
No
waiver of any forfeiture, by acceptance of rent or otherwise, shall
waive
any subsequent cause of forfeiture, or breach of any condition of
this
lease; nor shall any consent by the Lessor to any assignment or subletting
of said premises, or any part thereof, be held to waive or release
any
assignee or sub-lessee from any of the foregoing conditions or covenants
as against him or them; but every such assignee and sub-lessee shall
be
expressly subject thereto.
Whenever
the word “Lessor” is used herein it shall be construed to include the
heirs, executors, administrators, successors, assigns or legal
representatives of the Lessor; and the word “Lessee” shall include the
heirs, executors, administrators, successors, assigns or legal
representative of the Lessee and the words Lessor and Lessee shall
include
single and plural, individual or corporation, subject always to the
restrictions herein contained, as to subletting or assignment of
this
lease.
IN
WITNESS WHEREOF, the said parties aforesaid have duly executed the
foregoing instrument or caused the same to be executed the day and
year
first above written.
|
|
|
Pershing
Properties LLCLessor
|
||
|
/s/
|
||
|
/s/
President 10/16/07
|
||
|
Cleantech
Biofuels, Inc. Lessee
|
||
STATE
OF MISSOURI
of
}
ss.
On
this
_________ day of __________________ in the year _____, before me
_________________________________________________________,
a Notary Public in and for said state, personally appeared
____________________________________, known to me to be the person[s) described
in and who executed the within Commercial Lease, and acknowledged to me that
he/she executed the same as his/her/their free act and deed for the purposes
therein stated.
IN
TESTIMONY, I set my hand and affixed my official seal in the City or
County and State aforesaid, on the day and year above written.
|
Notary
Public
|
|
|
My
term expires:
|
STATE
OF MISSOURI
of
}
On
this ___________ day of
_______________________________________, 20_____,
before me, ____________________________________,
a
Notary Public in and for said state,personally
appeared, _________________________________, who being by me
duly sworn, did say that he/she is the _____________________ of
______________________________, a Corporation of the
State of _____________________________, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation,
by
authority of its Board of Directors; and said _______________________
acknowledges said instrument to be the free act and deed of said
corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the _______________________ And State aforesaid, the day and
year first above written.
|
Notary
Public
|
|
|
My
term expires:
|
STATE
OF MISSOURI
of
}
On
this ___________ day of
_______________________________________, 20_____,
before me, ____________________________________,
a
Notary Public in and for said state,personally
appeared, _________________________________, who being by me
duly sworn, did say that he/she is the _____________________ of
______________________________, a Corporation of the
State of _____________________________, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation,
by
authority of its Board of Directors; and said _______________________
acknowledges said instrument to be the free act and deed of said
corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the _______________________ And State aforesaid, the day and
year first above written.
|
Notary
Public
|
|
|
My
term expires:
|
EXHIBIT
“A”
ADDENDUM
THIS
ADDENDUM TO COMMERCIAL LEASE IS entered into by and between
Pershing Properties LLC Hereinafter called “Lessor”, and
Cleantech Biofuels, Inc. hereinafter called
“Lessee”,
and is part of a Lease Agreement of even date, attached hereto, with respect
to
certain “Leased Premises” defined therein. To the extent that the provisions
contained in this Addendum are inconsistent with or conflict with the
pre-printed provisions of the Commercial Lease attached hereto, the provisions
of this Addendum shall control and govern the rights of the
parties.
IN
CONSIDERATION OF the rents paid by Lessee and the mutual covenants
contained herein, the parties agree as follows:
Section
1. Payments. All rental payments are to be made to Lessor at such
address as Lessor shall from time to time designate. If Lessee shall fail to
pay; when the same is due and payable, any rent or any additional rent, such
unpaid amounts shall bear interest from the due date of payment at the rate
of
_5_% of the only rental
amount.
Section
2. Security Deposits. Concurrently with the execution of this
Lease, Lessee shall deliver to Lessor a sum of Three Thousand Six
Hundred and No/100 ($3,600.00) ($1,200.00) as
security for Lessee’s performance of the covenants and conditions of this Lease.
The deposited money may be co-mingled with other funds of Lessor and Lessor
shall not be liable for interest. If Lessee shall default with respect to any
covenant or condition of this Lease, including but not limited to the payment
of
rent, Lessor may apply all or part of the security deposit to the payment of
any
sum in default or any other sum which Lessor may be required to spend b reason
of Lessee’s default. Should Lessee comply with all of the covenants and
conditions of this Lease, the security deposit or any balance thereof shall
be
returned to Lessee at the expiration of the term thereof.
Section
3. Utilities. Lessor shall not be responsible for any
discontinuation or interruption of any utility service and any such
discontinuation or interruption of any utility service and any such
discontinuation or interruption shall not give either party the right to
terminate this Lease or cause the rent or additional rent provided herein to
be
abated. Lessor may, with notice to Lessee, or without notice in the case of
an
emergency, cut off and discontinue gas, water, electricity and any or all other
utilities whenever such discontinuance is necessary in order to make repairs
or
alterations. No such action by Lessor shall be construed as an eviction or
disturbance of possession or as an election by Lessor to terminate this Lease,
nor shall Lessor be in any way responsible or liable for such
action.
Section
4. Insurance; Indemnity; Liability: Tenant shall comply with all
insurance regulations so the lowest fire, lightening, explosion, extended
coverage and liability insurance rates may be obtained; and nothing shall be
done or kept in or on the premises by Tenant or which will cause cancellation
of
any such insurance or which will cause an increase for the premium for any
such
insurance on the premises on any contents located therein, over the premium
usually charged for the proper use of the premises as permitted by the Lease.
On
demand, Tenant shall reimburse Landlord for insurance premiums if so provided
in
the paragraph captioned “Basic Terms” prorated on a daily basis for any partial
year.
Tenant
shall at all times indemnify, defend and hold harmless Landlord from all loss,
liability, cost or damages that may occur or be claimed with respect to any
person, entity or property, on or about the premises or to the property itself
resulting from any act or omission of Tenant, its agents, employees, invitees
or
any person on the premises related to Tenant’s use, occupancy, non-use or
possession of the premises and any and all loss, cost, liability or expense
resulting therefrom except to the extent cause by Landlord’s misconduct or
negligence. Tenant shall maintain the premises in a safe and careful
manner.
Tenant
shall maintain adequate insurance on its personal property used or kept in
the
premises and shall maintain comprehensive public liability insurance with a
responsible insurance company licensed to do business in Missouri; and
satisfactory to Landlord, properly protecting and indemnifying Landlord in
an
amount of not less than One Million Dollars ($1,000,000) for injury to or death
of any one person, Three Million Dollars ($3,000,000) for personal injury to
or
death of two or more persons arising out of any one occurrence and not less
than
One Hundred Thousand Dollars (100,000) with respect to property damage. Tenant
shall furnish Landlord with a certificate or certificates of insurance covering
such insurance so maintained by Tenant.
Section
5. Increase in Taxes or Insurance. Lessee agrees to pay to Lessor,
as additional rent, an amount equal to Lessee’s share of any increase in the
amount of real estate taxes and assessments over and above the amount of such
taxes and assessments for the calendar year, if any, and Lessee’s share of any
increase in the cost of insurance over and above the cost of insurance for
the
policy year 2006, if any. Such payments shall be paid by
Lessee to Lessor within thirty (30) days following written notice by Lessor
to
Lessee that such amount is due and payable.
“Lessee’s
Share” as used in this Paragraph shall be based on the ratio which the number of
square feet of area in the Leased Premises bears to the total number of rentable
square feet of area in the property of which the Leased Premises are a part.
For
the purpose of this Lease, Lessee’s Share is: 16.6%. If
the term of this Lease shall terminate other than on the last day of a calendar
year, any excess for such final year shall be prorated based on the number
of
months of tenancy during such year.
“Real
Estate Taxes” as used in the Paragraph shall include all governmental taxes,
levies, and assessments with respect to the Leased Premises or the property
of
which the Leased Premises are a part.
“Insurance”
as used in this Paragraph means the insurance maintained by Lessor insuring
against loss or damage by fire and against all other risks of a similar or
dissimilar nature as are covered by endorsement commonly known as “supplemental
or extended coverage” in amounts not less than one hundred percent ( 1 00%) of
the full replacement value of the property of which the Leased Premises are
a
part, fixtures and contents. Any increase shall be an increased insurance cost
to be paid by Lessee.
Section
6. Tax on Leased Premises. Lessee shall be responsible for and
shall pay before delinquency all municipal, county or state taxes assessed
during the term of this Lease against any leasehold interest or personal
property of any kind, owned by or placed in, upon or about the Leased Premises
by the Lessee.
Section
7. Maintenance and Repair. Lessee shall be responsible for and
shall perform, as it shall be necessary to keep the Leased Premises in good
order, condition and repair. If Lessee refuses or neglects to repair property
as
required hereunder, and to the reasonable satisfaction of Lessor as soon as
reasonably possible after written demand, Lessor may make such repairs without
liability to Lessee for any loss or damage that may occur to Lessee’s
merchandise, fixtures or other property and Lessee shall pay Lessor’s costs for
making such repairs, upon presentation of a ▇▇▇▇ therefore, as additional rent.
Lessor will maintain all mechanical systems.
Section
8. Lessee’s Property. At the termination of this Lease, Lessee
agrees to remove such of Lessee’s equipment, goods and effects as are not
permanently affixed to the Leased Premises, to remove such of the alterations
and additions made by Lessee as Lessor may request, alterations made by Lessee,
to restore the Leased Premises to its original condition as Lessor may request;
and except for such alterations and additions which Lessor may request Lessee
to
remove, which theretofore shall be removed by Lessee, Lessee shall peaceably
yield up the Leased Premises and all alterations and additions thereto,
including but not limited to, all fixtures, furnishings, floor coverings, and
equipment which are permanently affixed to the Leased Premises, and all air
conditioning, heating and cooling equipment serving the Leased Premises, which
shall thereupon become the property of Lessor, clean and in good order, repair
and condition, normal wear and tear expected. Lessee reserves the right to
remove all trade fixtures, attached or unattached, from the
premises.
Section
9. Condition of Leased Premises. Lessee accepts the Leased Premises
and the property of which the Leased Premises are a part in their present
condition thereof or as to the use or occupancy which may be made
thereof.
Section
10. Personal Property. Landlord shall not be liable for any loss or
damage to any merchandise, inventory, goods, fixtures, improvements or personal
property in or about the premises, unless the cause of such loss or damage
is
the result of Landlord’s negligence or intentional act.
Section
11. Hazardous Substances. Tenant covenants and warrants that Tenant
will at all times comply with and conform to all laws, statutes, ordinances,
rules and regulations of any governmental or regulatory authorities which relate
to the transportation, storage, placement, handling, treatment, discharge,
generation, production or disposal of any waste, petroleum product, waste
products, radioactive waste, polychlorinated byphenyls, asbestos, hazardous
materials of any kind, and any substances which are regulated by any law,
statue, ordinance, rule or regulation. Tenant further agrees it will indemnify,
defend, save and hold harmless Landlord and Landlord’s officers, directors,
shareholders, employees and agents and their respective heirs, successors and
assigns against and from any and all damages, claims, liabilities, loss, costs
and expenses incurred by or asserted against the indemnified parities by reason
of or arising out of the breach of any of the representations or undertakings
contained in this section.
Section
12. Eminent Domain. If the premises or any substantial part thereof
shall be taken by any competent authority under the power of eminent domain
or
be acquired for any public or quasi-public use or purpose, this Lease shall
terminate upon the date when the possession of the premises or the part thereof
so taken shall be required for such use or purpose and without apportionment
of
the award, and Tenant shall have no claim against Landlord for the value of
any
unexpired lease term. If any condemnation proceeding shall be instituted in
which it is sought to take or damage any part of Landlord’s building or the land
under it or if the grade of any street or alley adjacent to the building is
changed by any competent authority and such change of grade makes it necessary
or desirable to remodel the building to conform to the changed grade, Landlord
shall have the right to cancel this Lease after having given written notice
of
cancellation to Tenant no less than ninety (90) days prior to the date of
cancellation designated in the notice. In either case, rent at the then current
rate shall be apportioned as of the date of the termination. No money or other
consideration shall be payable by Landlord to Tenant for the right of
cancellation and Tenant shall have no right to share in the condemnation award
or in any judgment for damages caused by the taking or change of grade. Nothing
in this paragraph shall preclude an award being made to Tenant for loss of
business or depreciation to and cost of removal of equipment or fixtures.
Landlord shall advise Tenant upon receipt of any notice received by Landlord
concerning any condemnation.
SECTION
13. DEFAULT AND REMEDIES. If: (a) Tenant fails to comply with any
material term of this Lease; (b) Tenant deserts or vacates the premises; (c)
any
petition is filed by or the bankruptcy law; (d) Tenant becomes insolvent or
makes a transfer in fraud of creditors; (e) or Tenant makes an assignment for
the benefit of creditors; or (f) a receiver is appointed for Tenant or any
of
the assets of Tenant, then in any of such events, Tenant shall be in default
and
Landlord shall have the option to do anyone or more of the following: upon
thirty (30) days’ prior written notice, excepting the payment of rent or
additional rent for which no demand or notice shall be necessary, in addition
to
and not in limitation of any other remedy permitted by law, to enter upon the
premises or any part thereof either with or without process of law, and to
expel, remove and put out Tenant or any other persons who might be thereon,
together with all personal property found therein; and, Landlord may terminate
this Lease or it may from time to time, without termination this Lease, rent
the
premises or any part thereof for such term or terms (which may be for a term
extending beyond the lease term) and at such rent and upon such terms s Landlord
in its sole discretion may deem advisable, with the right to repair, renovate,
remodel, redecorate, alter and change the premises. At the option of Landlord,
rents received by Landlord from such reletting shall be applied first to the
payment of any indebtedness from tenant to Landlord other than rent and
additional rent due hereunder; second, to payment of any costs and expenses
of
such reletting, including, without limitation, attorneys’ fees, advertising fees
and brokerage fees, and to the payment, exclusive of renovation for a new
tenant, of any repairs, renovation, remodeling, rent, and interest, due and
payable under this Lease, and, if after applying such rents against the rent
and
additional rent and interest Tenant must pay Landlord under this Lease there
remains a possession of the premises shall be construed as an election on
Landlord’s part to terminate or accept a surrender of this Lease unless Landlord
gives Tenant a prior written notice of such thereafter elect to terminate this
Lease for such previous breach and default. Should Landlord at any time
terminate this Lease by reason of any default, in addition to any other remedy
it may have, it may recover from Tenant the worth at the time of such
termination of the excess of the amount of rent and additional rent reserved
in
this Lease for the balance of the lease term over the then reasonable rental
value of the premises for the same period. The parties shall have the right
and
remedy to seek redress in the courts at any times to correct or remedy any
default by injunction or otherwise, without such result being deemed a
termination of or acceptance of surrender of this Lease, and Landlord, whether
this Lease has been terminated or not, shall have the absolute right by court
action or other wise to collect any and all amounts of unpaid rent or unpaid
additional rent or any other sums due from Tenant to Landlord under this Lease
which were or are unpaid at the date of termination. If either party uses an
attorney to enforce its rights or to collect any amount payable under this
Lease, then in each case the prevailing party shall receive reasonable
attorneys’ fees and expenses incurred by it from the other party.
SECTION
14. WAIVER. The rights and remedies of the parties under this
Lease, as well as those provided or accorded by law, shall be cumulative, and
none shall be exclusive of any other rights or remedies hereunder or allowed
by
law. A waiver by either party of any breach or breaches, default or defaults,
of
either party hereunder shall not be deemed to be a continuing waiver of such
breach or default nor as a waiver of or permission, expressed or implied, for
any subsequent breach or default; and it is agreed that the acceptance by
landlord of any installment of rent subsequent to the date the same should
have
been paid hereunder shall in no manner alter or affect the covenant and
obligation of Tenant to pay subsequent installments of rent promptly upon the
due date thereof. No receipt of money by landlord after the termination of
this
Lease in any way shall reinstate, continue or extend the lease
term.
SECTION
15. HOLDING OVER. If Tenant holds over after this Lease or any
renewal or extension thereof expires or terminates, Tenant will pay double
rent
for the entire hold-over period, and, unless Landlord and Tenant enter a written
“hold-over agreement” expressly identified as such, Tenant shall be deemed a
trespasser and shall have no right to the premises whatsoever. Tenant shall
further be liable to Landlord for all direct and consequential damages caused
by
such hold-over and for all attorneys’ fees and expenses incurred by Landlord in
enforcing its rights under this Lease.
SECTION
16. ALTERATIONS. Tenant shall not make any alterations or additions
in or to the premises without the prior written consent of
Landlord.
SECTION
17. UTILITIES OR SERVICES. Tenant shall furnish and pay for all
electricity, gas, water and any services or utilities used in or assessed
against the premises, unless otherwise expressly provided in this
Lease.
SECTION
18. PUBLIC REQUIREMENT. Tenant shall comply with all laws, orders,
ordinances and other public requirements now or hereafter affecting the premises
or the use thereof, including, without limitation, environmental laws and
accessibility laws, and indemnify, defend and hold Landlord harmless from
expense or damage resulting from failure to do so.
SECTION
19. DAMAGE BY CASUALITY. If the premises or any building of which
the premises form a part, shall be destroyed or shall be so damaged by fire
or
other casualty, as to become untenantable, then, at Landlord’s option, this
Lease shall terminate from the date of such damage or destruction and Tenant
shall immediately surrender the premises to Landlord, and Tenant shall pay
rent,
prorated on a daily basis, to the time property became untenantable; provided,
however, that Landlord shall exercise its option to terminate this lease by
written notice to Tenant within twenty (20) days after such damage or
destruction. If landlord does not elect to terminate this lease, then this
Lease
shall continue in full force and Landlord shall repair the premises using
reasonable diligence to put the same in as good a condition as prior to the
damage or destruction, and for the purpose may enter the premises. Rent shall
▇▇▇▇▇ in proportion to the extent and duration of untenantability. In either
event, Tenant shall remove all rubbish, debris, merchandise, furniture,
equipment and other of its personal property within ten (10) days after the
request of the Landlord. If the fire or other casualty does not render the
premises untenantable and unfit for occupancy, then Landlord shall repair the
same using reasonable diligence but rent shall not ▇▇▇▇▇. Tenant shall have
no
claim for compensation or otherwise resulting from the inconvenience or
annoyance arising from such repairs of any portion of any building or the
premises, however occurring.
SECTION
20. ASSIGNMENT AND SUBLETING. Tenant may not assign this Lease or
allow it to be assigned by operation of law or otherwise, or sublet the premises
or any part thereof, or use or permit the premises to be used for any purpose
not permitted by this Lease without the prior written consent of Landlord to
each such assignment, sublease, or change in use, which consent will not be
unreasonably withheld.
SECTION
21. ESTOPPEL CERTIFICATE. Tenant shall from time to time upon not
less than ten (10) days prior written request by Landlord, deliver to Landlord
a
written certificate stating as follows: that this Lease is unmodified and in
full force, or if modified, that the Lease as modified is in full force, the
dates to which rent or other charges have been paid, and that Landlord is not
in
default under this Lease except for such defaults, if any, described in detail
in such certificate.
SECTION
22. SUBORDINATION. This Lease shall also be subject and subordinate
in law and equity to any existing or future mortgage or deed of trust placed
by
Landlord upon the premises or the property of which the premises form a part.
Upon request, Tenant shall execute any documents reasonably required to confirm
such subordination.
SECTION
23. QUIET POSSESSION. Landlord agrees that if Tenant performs fully
all of its obligations under this Lease, Tenant shall and may peaceably and
quietly have, hold and enjoy their premises; provided that such covenant of
quiet enjoyment shall only bind the named Landlord, its heirs, successors,
or
assigns during such party’s ownership of the premises. Landlord and Tenant
further represent that each has full right, title, power and authority to make,
execute and deliver this Lease.
SECTION
24. SUCCESSORS AND ASSIGNS. All the covenants, agreements and
conditions herein contained shall extend to and be binding upon the respective
successors, heirs, executors, administrators, assigns, receivers or other
personal representatives of the parties to this Lease. Neither this Lease nor
any interest therein shall pass to any trustee or receiver in bankruptcy or
to
any other receiver or assignee for the benefit of creditors by operation of
law
or otherwise. Upon request, Tenant shall attorn to any successor to Landlord
and
shall execute any documents reasonably required to carry out such
attornment.
SECTION
25. ENTIRE AGREEMENT. This Lease supersedes all prior negotiations
and agreements between the parties hereto. The parties have made no
representations, warranties, understandings or agreements other than those
expressly set forth herein.
SECTION
26. AMENDMENTS. This Lease may be amended or modified in whole or
in part only by a written agreement executed in the same manner as this Lease
and making specific reference thereto.
SECTION
27. CONSTRUCTION. Unless the context otherwise requires, when used
in the Lease, the singular includes the plural and vice versa, and the masculine
includes the feminine and neuter and vise versa. A person is deemed to include
an individual or any entity. If any provisions of this Lease be officially
found
to be contrary to law, or void as against public policy or otherwise, such
provisions shall be either modified to conform to the laws or considered
severable with the remaining provisions hereof continuing in full force. The
titles and headings in this Lease are used only to facilitate reference, and
in
no way to define or limit the scope or intent of any of the provisions of this
Lease. This Lease may be executed in two or more counterparts, all of which
taken together shall constitute one instrument. All exhibits attached to this
Lease and signed or initialed by Landlord and tenant are incorporated herein
by
reference. This Lease shall be governed by the internal laws of
Missouri.
SECTION
28. NOTICES. All notices, consents, approvals, requests, waivers,
objections, or other communications (collectively “Notices”) required under this
Lease shall be in writing and shall be served by hand delivery, by prepaid
United States certified mail, return receipt requested, or by reputable
overnight delivery service guaranteeing next-day delivery and providing a
receipt, and addressed to Tenant at the premises or to Landlord where rent
is
payable or at such other address as either party shall designate by written
notice t the other party. Notices shall be deemed effective the day after
mailing or upon the receipt or refusal of either hand delivery or next-day
delivery.
TIMELY
AND EXACT PERFORMANCE IS ESSENTIAL TO THIS LEASE
IN
WITNESS WHEREOF, the parties have executed this Lease on the date(s)
indicated below their respective signature.
|
LANDLORD/LESSOR:
|
TENANT/LESSEE:
|
||||
|
By:
|
By:
|
|
|||
|
Pershing
Properties LLC
|
Cleantech
Biofuels Inc.
|
||||
|
Dated:
|
Dated:
|
/s/
10/16/07
|
|||