AMENDED LEASE AGREEMENT
SECTION I
PARTIES
This document serves as an amendment to that certain lease agreement dated
July 1, 2000 between XXXXXXX XXXXX & XXXXXXX XXXXXX REAL ESTATE PARTNERSHIP with
an address at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 as Landlord, and DIAMOND
TRIUMPH AUTO GLASS, INC., with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx, 00000, as Tenant for certain leased premises located at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 as described in more detail below.
SECTION II
DESCRIPTION OF LEASED PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
certain premises containing approximately 51,000 sq. ft. of office space and
approximately 148,080 sq. ft. of warehouse space located at 000 XXXXXXXX XXXXXX,
XXXXXXXX, XX 00000 which premises shall hereafter be referred to as the Premises
and the related parking spaces located in the lot across the street from the
Premises and approximately 7,000 sq. ft. of garage space located at the rear
section of said lot. The aforementioned Premises together with the parking lot
shall hereafter collectively be referred to as the Premises and are more fully
described in Exhibit A attached hereto and incorporated to be reference herein.
SECTION III
TERM
The Premises are leased for a term to commence on NOVEMBER 1, 2003 and to
end on DECEMBER 31, 2005.
OPTION TO RENEW
The parties agree that this lease shall be renewed, upon the same terms
and conditions, for additional two (2) year periods, unless this lease is
terminated by either the Landlord or Tenant by such party providing written
notice at least sixty (60) days prior to the expiration of the then current
lease period.
SECTION IV
RENT
The total annual rent is the sum of $465,740 ($2.26/sq.ft. per annum)
which sum is payable in equal monthly installments, of $38,812 in advance, on
the 1st day of each calendar month during the Term. In addition, the Landlord
and Tenant acknowledge and agree that effective each January 1st of each
calendar year rental period that the annual rent shall be increased by four
percent (4%) for each such calendar year. As such, the annual rent shall be
increased as of January 1, 2004 and each January 1st thereafter.
The Landlord and Tenant acknowledge and agree that the annual rent shall be
subject to adjustment during any option or renewal period. The failure of the
Landlord to increase the annual rent during any renewal period shall not
prohibit the Landlord from subsequently adjusting or increasing the rent during
a subsequent renewal period.
SECTION V
USE AND OCCUPANCY
Tenant shall use and occupy the Premises primarily as a warehouse for
automobile windshields and other related glass products and also a portion as a
Corporate office headquarters. Landlord represents that the Premises may
lawfully be used for such purpose and in the event such use is prohibited by any
zoning law or ordinance during the term that the Tenant shall have the right to
terminate its obligations hereunder by thirty (30) days written notice to
Landlord.
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SECTION VI
PLACE FOR PAYMENT OF RENT
Tenant shall pay rent to Landlord at Landlord's above stated address, or
at such other place as Landlord may designate in writing.
SECTION VII
CARE AND REPAIR OF PREMISES
Tenant shall commit no act of waste and shall take good care of the
Premises and the fixtures and appurtenances therein, and shall, in the use and
occupancy of the Premises, conform to all laws, orders, and regulations of the
federal, state and municipal governments as relate solely to Tenant's use,
manner or use of occupancy of the Premises and Tenant's obligations hereunder
shall not extend to conditions pre-existing the commencement of the term of this
Lease.
Not later than the last day of the term, Tenant shall, at Tenant's
expense, remove all of Tenant's personal property and those improvements made by
fixtures, cabinet work, movable paneling, partitions and the like; repair all
injury done by or in connection with the installation or removal of the property
and shall restore the premises to the same good order and condition in which
they were at the commencement of this Lease, reasonable wear, and damage by
fire, the elements or the agents, servants, visitors or licensees of Landlord
excepted.
SECTION VIII
ALTERATIONS, ADDITIONS OR IMPROVEMENTS
Tenant shall not, without first obtaining the consent of Landlord, make
any structural alterations, or improvements in, to or about the Premises.
Landlord shall not unreasonably withhold consent.
SECTION IX
PROHIBITION AGAINST ACTIVITIES INCREASING
FIRE INSURANCE RATES
Tenant shall not do or suffer anything to be done on the Premises, which
will cause an increase in the cost of fire insurance on the building. If Tenant
shall cause the cost of fire insurance to increase Tenant will be responsible
for the incremental increase in said costs.
SECTION X
ACCUMULATION OF WASTE OR REFUSE MATTER
Tenant shall not permit the accumulation of waste or refuse matter on the
leased Premises or anywhere in or near the building.
SECTION XI
ASSIGNMENT OR SUBLEASE
Tenant shall not, without first obtaining the consent of the Landlord,
assign this Lease, in whole or in part, or sublet the Premises or any part of
such Premises. Landlord expressly covenants that such consent shall not be
unreasonably withheld. The Landlord and Tenant acknowledge and agree that in the
event the Tenant effectuates a sale of substantially all of the assets or
attempts to effectuate the transfer of the leasehold interest herein in
conjunction with a consolidation, merger or pooling of interests of Tenant, that
this lease at the Landlord's sole option, may either be terminated or the lease
may be extended and Landlord at his election may renegotiate the rent at the
time of such transfer or sale.
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SECTION XII
UTILITIES
Tenant will pay for all electricity for the Premises herein leased and all
other utilities serving the Premises.
SECTION XIII
DAMAGES TO BUILDING
If the building is damaged by fire or any other cause, the Landlord will
promptly make such repairs as are reasonably necessary. In the event said
repairs are not promptly made, then the Tenant may, but shall not be obligated,
to make said repairs and deduct the cost of same from rent which may thereafter
become due. In the event such damage prevents or hinders the Tenant from
conducting its business on the Premises, then the Tenant may, upon five (5) days
written notice, terminate this Lease. Upon said termination, the Tenant's
obligation hereunder shall cease as of date of such termination notice.
In any case in which use of the Premises is affected by damage to the
building, there shall be either an abatement or an equitable reduction in rent
depending on the period for which, and the extent to which, the Premises are
unusable for the purposes for which the Premises are leased under this
agreement.
SECTION XIV
CONDITION OF THE PREMISES
The Landlord represents that upon the commencement of the term of this
Lease the plumbing, heating, ventilating, air conditioning systems and
electrical systems shall be in proper working order, and the roof shall be free
of leaks. It shall be the Tenant's responsibility to properly maintain the
plumbing, heating, ventilating, air conditioning and electrical systems in the
Premises, however, nothing contained herein shall obligate the Tenant to replace
these systems. The Landlord shall be solely responsible for maintaining the
structural integrity of the building, including but not limited to the
foundation and bearing walls, as well as the roof and all exterior portions of
the building and Premises.
SECTION XV
AUTHORITY
The parties hereto represents that they have full authority to enter into
this agreement, and to bind the respective parties hereto. The Landlord
represents that it is the sole owner of the leased Premises.
SECTION XVI
BROKERAGE COMMISSION
The Landlord and Tenant represent and acknowledge that the contracting
party shall be solely responsible for any real estate brokerage commission that
the Landlord or Tenant directly contracted with a third party, which may be due
as a result of such party directly contracting with a third party for such
services.
SECTION XVII
WAIVERS OF SUBROGATION
In the event of loss or damage to the building, the Premises and/or any
contents, each party shall look first to any insurance in its favor before
making any claim against the other party; and , to the extent possible without
additional cost, each party shall obtain, for each policy of such insurance,
provisions permitting waiver of any claim against the other party for loss or
damage within the scope of such insurance, and each party, to such extent
permitted, for itself or its insurers, waives all such insured claims against
the other party.
However, the Landlord and Tenant agree to indemnify and hold harmless each
other from any losses or damages arising under the terms of this Agreement,
arising from the intentional acts or gross negligence of the other party.
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SECTION XVIII
EMINENT DOMAIN
If the entire Premises or any part of the Premises or any estate therein,
or any other part of the building materially affecting Tenant's use of the
Premises, be taken by eminent domain, then at the Tenant's option, this Lease
shall terminate on the date when title vests pursuant to such taking. The rent,
and any additional rent, shall be apportioned as of the termination date, and
any rent paid for any period beyond such date shall be repaid to Tenant. Tenant
shall not be entitled to any part of the award for such taking or any payment in
lieu of such payment, but Tenant may file a claim for any taking of fixtures and
improvements owned by Tenant, and for moving expenses.
SECTION XIX
LANDLORD'S REMEDIES ON DEFAULT
If Tenant defaults in the payment of rent, or any additional rent or
defaults in the performance of any of the other covenants or conditions of this
agreement, Landlord may give Tenant notice of such default and if Tenant does
not cure any rent, or additional rent, default within seven (7) days, or other
default within ten (10) days, after giving of such notice (or if such other
default is of such nature that it cannot be completely cured within such period,
or if Tenant does not commence such good faith curing within such ten (10) days
notice period and thereafter proceed with reasonable diligence and in good faith
to cure such default), then Landlord may terminate this lease on not less than
seven (7) days; notice to Tenant. On the date specified in the notice, the term
of this Lease shall terminate and Tenant shall then quit and surrender the
Premises to Landlord. If this Lease shall been so terminated by Landlord,
Landlord may, at any time thereafter, resume possession of the Premises by any
lawful means and remove Tenant or other occupants and their effects.
SECTION XX
EFFECT OF FAILURE TO INSIST ON STRICT COMPLIANCE WITH CONDITIONS
The failure of either party to insist on strict performance of any
covenant or condition of this agreement, or to exercise any option herein
contained, shall not be construed as a waiver of such covenant, condition, or
option in any other instance. This Lease cannot be modified or terminated
orally.
SECTION XXI
COLLECTION OF RENT FROM ANY OCCUPANT
If the Premises are sublet or occupied by anyone other than Tenant, and
Tenant is in default under this agreement, or if this Lease is assigned by
Tenant, Landlord may collect rent from the assignee, subtenant, or occupant, and
apply the net amount collected to the rent herein reserved. No such collection
shall be deemed a waiver of the covenant herein against assignment and
subletting, or the acceptance of such assignee, subtenant, or occupant as
Tenant, or a release of Tenant from further performance of the covenants herein
contained.
SECTION XXII
LANDLORD'S RIGHT TO CURE TENANT'S BREACH
If Tenant breaches any covenant or condition of this Lease, Landlord may,
on reasonable notice to Tenant, (except that no notice need be given in case of
emergency), cure such breach at the expense of Tenant and the reasonable amount
of all expenses, including attorneys' fees, incurred by Landlord in so doing,
(whether paid by Landlord or not), shall be deemed additional rent payable on
demand.
SECTION XXIII
MECHANICS' LIEN
Tenant shall, within thirty days (30) after notice from Landlord,
discharge or post security for, any mechanics' liens for materials or labor
claimed to have been furnished to the Premises on Tenant's behalf.
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SECTION XXIV
NOTICES
Any notice by either party to the other shall be in writing and shall be
deemed to have been duly given only if delivered personally, or sent by
certified mail in an addressed postpaid envelope; if to Tenant, Diamond Triumph
Auto Glass, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx, 00000, Attn: Xxxx
Xxxxxx, CEO, with copy to Xxxx Xxxxxx, President; if to Landlord, at Landlord's
address as set forth above to the attention of Xxxxxxx Xxxxxx or Xxxxxxx Xxxxx;
or to either, at such other address as Tenant or Landlord respectively, may
designate in writing. Notice shall be deemed to have been duly given, if
delivered personally, upon delivery, and if mailed, upon the receipt of such
certified mail.
SECTION XXV
LANDLORD'S RIGHT TO INSPECTION, REPAIR AND MAINTENANCE
The Landlord may during the term, at reasonable times and upon adequate
notice have access to the Premises (except that no notice need be given in case
of emergency), for the purpose of inspection or the making of such repairs,
replacements or additions in, to, on and about the Premises or the building.
SECTION XXVI
INTERRUPTION OF SERVICE OR USE
Interruption or curtailment of any service maintained in the building, if
caused by strikes, mechanical difficulties, or any causes beyond Landlord's
control, whether similar or dissimilar to those enumerated, shall not entitle
Tenant to any claim against Landlord or to any abatement in rent, and shall not
constitute constructive or partial eviction, unless Landlord fails to take such
measures as may be reasonable in the circumstances to restore the service
without undue delay. If the Premises are rendered untenantable in whole or in
part, for a period of more than three (3) business days, by the interruption or
curtailment of any such services or the making of repairs, replacements, or
additions, other than those made with Tenant's consent or caused by misuse or
neglect by Tenant's agents, servants, visitors, or licensees, there shall be a
proportionate abatement of rent during the period of such untenantability. If
the Premises shall remain untenantable for twenty (20) days, the Tenant may at
its option terminate this Lease.
SECTION XXVII
LANDLORD'S RIGHT TO SHOW PREMISES
Landlord may show the Premises to prospective purchasers and mortgagees
and during the two (2) months prior to termination of this Lease, to prospective
tenants, during business hours upon reasonable notice to Tenant.
SECTION XXVIII
EFFECT OF OTHER REPRESENTATIONS
No representations or promises shall be binding on the parties to this
agreement except those representations and promises contained herein or in some
future writing signed by the party making such representations or promises.
SECTION XXIX
QUIET ENJOYMENT
Landlord covenants that if, and so long as, Tenant pays the rent, and any
additional rent as herein provided, Tenant shall peaceably and quietly have,
hold and enjoy the Premises for the entire term herein mentioned, subject to the
provisions of this Lease. If the Tenant's rights pursuant to this paragraph are
materially and substantially impaired and remain so impaired, upon ten (10) days
written notice to the Landlord the Tenant shall have the right to terminate this
lease.
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SECTION XXX
SIGNS
Tenant shall have the right, at its expense, to erect on the exterior of
the Premises its standard signs, which signs shall be structurally sound and in
conformity with existing municipal regulations
SECTION XXXI
LIABILITY INSURANCE
Tenant shall during the entire term hereof, keep in full force and effect,
a policy of public and general liability insurance including umbrella liability
insurance and property insurance and workers compensation liability insurance
with respect to the Premises, and the business operated by Tenant and any
subtenants of Tenant in the Premises, in which the limits of such pubic and
general liability coverage including umbrella liability coverage shall not be
less than Five Million ($5,000,000.) Dollars, combined bodily injury and
property damage. Such policy shall include the Landlord as an additional
insured. The Tenant acknowledges and agrees that the Tenant shall bear the
premium cost of the above referenced insurance maintained by the Tenant.
The Tenant and Landlord further acknowledge that the Tenant shall obtain
property insurance for the Premises, including the real property thereon.
However, the Landlord acknowledges that the Landlord shall reimburse the Tenant
for the Premises cost related to the real property coverage obtained by the
Tenant for the Premises.
SECTION XXXII
ENVIRONMENTAL INDEMNITY BY LANDLORD
Landlord will indemnify Tenant and save it harmless from and against any
failure on the part of the Landlord or any prior owner of the Premises or on the
part of any prior occupant of the Premises to comply with the provisions of any
local, state or federal hazardous waste or environmental laws, including, but
not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. 1801-1812; and the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901-6987 (hereinafter
collectively referred to as the "Hazardous Waste Laws").
Tenant shall not be responsible for curing any failure on the part of the
Landlord or any prior owner of the Premises or on the parts of any prior
occupant of the Premises to comply with the provisions of any Hazardous Waste
Laws.
SECTION XXXIII
ENVIRONMENTAL INDEMNITY BY TENANT
Tenant warrants and represents that during Tenant's use and occupancy of
the demised Premises, Tenant shall not utilize any portion of the demised
Premises for the production, disposal, storage treatment, processing or other
handling of waste contamination, PCB's or any other toxic or hazardous
substances and Tenant shall indemnify and hold Landlord harmless for any
violation of Hazardous Waste Laws.
SECTION XXXIV
GROSS LEASE
It is clearly understood that this is a Gross Lease and that the Landlord
shall pay all costs relating to its ownership of the Building and Premises,
including but not limited to, taxes, insurance and like charges other than the
property insurance expense as set for the in Section XXXI above. In addition,
Landlord shall provide all exterior maintenance on the entire building and
Premises and provide snow plowing of the parking lot adjacent to the demised
Premises.
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SECTION XXXV
TENANT'S CERTIFICATION AS TO FORCE AND EFFECT OF LEASE
Tenant shall, from time to time, upon not less than seven (7) days' prior
written request by Landlord, execute, acknowledge, and deliver to Landlord, a
written statement certifying that the Lease is unmodified and in full force and
effect, or that the Lease is in full force and effect as modified and listing
the instruments of modification; the dates to which the rents and other charges
have been paid; and, whether or not to the best of Tenant's knowledge, Landlord
is in default under this Lease and, if so, specifying the nature of the default.
It is intended that any such statement delivered pursuant to this Section may be
relied upon by a prospective purchaser of Landlord's interest or mortgagees of
Landlord's interest or the assignee of any mortgages upon Landlord's interest in
the building.
SECTION XXXVII
SECTION HEADINGS
The Section headings in this Lease are intended for convenience only and
shall not be taken into consideration in any construction or interpretation of
this Lease or any of its provisions.
DATED: OCTOBER 28, 2003
/S/ XXXXXXX XXXXXX /S/ XXXXX X XXXXXXX
---------------------------------------------------- ----------------------
LANDLORD: XXXXXXX XXXXX & XXXXXXX XXXXXX PARTNERSHIP WITNESS:
/S/ XXXXXXX XXXXXX /S/ XXXXX X XXXXXXX
---------------------------------------------------- ----------------------
TENANT: DIAMOND TRIUMPH AUTO GLASS, INC. WITNESS:
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EXHIBIT A (PAGE 1 OF 4)
000 XXXXXXXX XXXXXX, XXXXXXXX, XX 00000
KINGSTON FACILTY OCCUPIED SQUARE FOOTAGE SUMMARY
GARAGE
WAREHOUSE OFFICE REPAIR TOTAL
--------- ------ ------ -----
MOD 1 1ST FLOOR 47,500 7,500 55,000
MOD 1 2ND FLOOR 24,000 41,000 65,000
MOD 2 42,500 2,500 45,000
MOD 3 31,680 31,680
MOD 5 (50% OCCUPANCY) 2,400 2,400
GARAGE REPAIR FACILTY 7,000 7,000
TOTAL UTILIZED SQ FT 148,080 51,000 7,000 206,080
EXHIBIT A (PAGE 2 OF 4)
000 XXXXXXXX XXXXXX, XXXXXXXX, XX 00000
[FIRST FLOOR FLOORPLAN GRAPHIC]
EXHIBIT A (PAGE 3 OF 4)
000 XXXXXXXX XXXXXX, XXXXXXXX, XX
[SECOND FLOOR FLOORPLAN GRAPHIC]
EXHIBIT A (PAGE 4 OF 4)
000 XXXXXXXX XXXXXX, XXXXXXXX, XX
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GARAGE REPAIR FACILITY
7,000 sq. ft.
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