AGREEMENT OF SUBLEASE, dated as of September 30, 1997 between KOSZEGI
INDUSTRIES, INC., an Indiana Corporation, having an office at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxx ("SUBLESSOR") and AMPLACO GROUP, INC., a New York
Corporation, having an office at 000 Xxxx 000xx Xxxxxx, Xxxxx, Xxx Xxxx
("SUBLESSEE").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement of Lease dated as of February 28,
1989, between XXXXXX X. XXXXXX ("LANDLORD"), as landlord, and KOSZEGI PRODUCTS,
INC., as tenant, (the "LEASE") a copy of which has heretofore been delivered to
Sublessee, Sublessor leases space comprised of approximately 74,450 square feet
at the facility located in the County of St. Xxxxxx, City of South Bend,
Indiana, as more particularly described in the Lease (the "PREMISES");
WHEREAS, Sublessor and Sublessee are parties to an Asset Purchase
Agreement dated September 5, 1997, which agreement provided for, among other
things, Sublessee's use of a portion of the Premises for conducting the
business being conveyed under the Asset Purchase Agreement; and
WHEREAS, Sublessee wants to sublet from Sublessor and Sublessor wants
to sublet to Sublessee a portion of the space covered by the Lease, consisting
of approximately _________ square feet, which is designated by cross hatching
on the floor
plan annexed hereto (the "SUBLET PREMISES"), on the terms and conditions
hereinafter set forth.
NOW THEREFORE, Sublessor, for and in consideration of the rents,
covenants and agreements hereinafter reserved and contained on the part of
Sublessee to be paid, kept and performed, does hereby sublet and demise unto
Sublessee, and Sublessee does hereby take and hire from Sublessor upon and
subject to the terms, covenants and conditions hereinafter expressed, which
Sublessee agrees to keep and perform, the Sublet Premises.
TO HAVE AND TO HOLD the same unto Sublessee and its successors and
permitted assigns, for a term to commence as of the date hereof (the "TERM
COMMENCEMENT DATE"), and to expire at 12:00 noon on January 31, 1999 (the
"EXPIRATION DATE"), subject to the Lease and all ground or underlying leases
and mortgages to which the Lease is or may hereafter be subject and subordinate
pursuant to the terms thereof, and upon the rentals, terms, covenants,
conditions and provisions herein set forth.
AND the parties hereto hereby agree to the foregoing and as follows:
1. MONTHLY PAYMENTS. The parties agree that the Sublet Premises
constitutes 26.76% of the Premises (the "SUBLESSEE'S SHARE"). Sublessee shall
be responsible for Sublessee's Share of all costs payable by Sublessor under
the Lease, including without limitation rent, property taxes, electricity and
insurance ("SUBLESSEE'S CHARGES"). Each
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month Sublessor will give a written statement of Sublessee's Charges, which
must be paid in full within three (3) days of delivery of the statement, either
by certified bank check or, at Sublessor's request, by wire transfer.
2. CANCELLATION. The term shall commence on the Term Commencement
Date, and shall expire on the Expiration Date. The foregoing notwithstanding,
Sublessee shall have the right to terminate this Sublease by giving notice to
Sublessor at the address written above. Such right shall be exercisable only
upon the date which is thirty (30) days from the date notice is given;
provided, however, that Sublessee shall hold harmless and indemnify Sublessor
and its parent company from and against liabilities, claims, suits, demands,
judgments, actions and expenses, inclusive of attorneys' fees, disbursements
and court costs in connection with the early termination of any employees or
the violation of any applicable local, state, county or federal regulations, as
a result of or in connection with such termination.
3. CONDITION OF PREMISES. Sublessee acknowledges that it has inspected
the Sublet Premises and is satisfied with the condition of the Sublet Premises
and agrees to accept the Sublet Premises in its present condition.
4. USE; COMPLIANCE WITH LAWS. Sublessee shall use the Sublet Premises
for manufacturing purposes in accordance with the Lease for the conduct of its
business and for no other purpose. Sublessee shall comply with all building,
zoning, fire and other governmental laws, ordinances, regulations or rules
applicable to the Sublet Premises.
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Sublessee shall not do or permit anything to be done in or about the Sublet
Premises, or bring or keep anything in the Sublet Premises that may increase
Sublessor's or Landlord's fire and extended coverage insurance premium, damage
the Premises, constitute waste, or be a nuisance, public or private, or a
menace or other disturbance to neighbors or other occupants of the Premises.
5. ALTERATIONS. Sublessee shall not make any alterations in or to the
Sublet Premises of any nature except in accordance with the relevant articles
of the Lease and with the consent and approval of Landlord and Sublessor and as
otherwise required therein. Any expense incurred by Sublessee in connection
with any such alterations or consent thereto shall be borne solely by
Sublessee.
6. REPAIRS. Sublessee agrees to maintain the Sublet Premises in a
neat, clean and sanitary condition, and keep same in good repair, in accordance
with the terms of the Lease.
7. INDEMNIFICATION. Sublessee shall hold harmless and indemnify
Landlord, Sublessor their parent companies and subsidiaries of whatever tier
and their agents and employees, from and against any and all liability, claims,
suits, demands, judgments, actions and expenses, inclusive of attorneys' fees,
disbursements and court costs, as a result of injury, including death, to all
persons whether employees of Sublessee or otherwise, or property damage,
arising out of, or in connection with Sublessee's use of the Sublet Premises
and shall maintain at all times Comprehensive General Liability Insurance,
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including Personal Injury Liability, in such amount as may reasonably be
required by Sublessor or Landlord from time to time but not less than
$1,000,000.00 per occurrence, and $1,000,000.00 aggregate in respect of bodily
injury or death, and $100,000 per occurrence for property damage, such policy
to name Sublessor and Landlord as additional insureds, and to provide that in
the event of cancellation or material change in the policy, 30 days' notice
will be given to such parties, at the address hereinabove stated or at such
other address as they shall hereafter designate by notice to Sublessee. Such
insurance shall be effected under a valid and enforceable policy issued by
insurers of recognized responsibility, licensed to do business in the state of
Indiana and reasonably acceptable to Sublessor. The original or duplicate
counterpart of such policy or a certificate of insurance issued by the carrier
shall be delivered to Sublessor, provided that any certificate must be
accompanied by an endorsement to the original policy which names Landlord and
Sublessor as additional insureds and provides for 30 days' notice of
cancellation or material change to Sublessor.
8. INCORPORATION OF LEASES' TERMS. To the extent not otherwise
inconsistent with the agreements and understandings expressed in this Sublease
or applicable to the original parties to the Lease, all of the terms, covenants
and conditions of the Lease, including all amendments thereto, (excluding,
however, Paragraphs 1, 3 (C)-(F), and 28) are hereby incorporated herein by
reference on the following understandings:
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(a) The term "LANDLORD" as used therein shall refer to
Sublessor, its successors and assigns, and the term "TENANT" as used
therein shall refer to Sublessee, its successors and permitted
assigns.
(b) In any article referring to a period of time in which
"TENANT" must act or respond, such time period shall automatically be
reduced by three (3) days.
(c) In any case where "LANDLORD" reserves the right to enter
the Sublet Premises such right shall inure to the benefit of Landlord
and Sublessor.
(d) With respect to any work, services or repairs, or the
performance of other obligations required of Landlord under the Lease,
Sublessor's sole obligation shall be to request the same from
Landlord. Sublessee at its option may, in its own name conduct such
proceedings as may be required to obtain from Landlord any such work,
services, repairs or other obligations, and Sublessor shall cooperate
with Sublessee in connection therewith, including execution of such
documents as may be required.
(e) Sublessee hereby agrees to assume the obligations of
"TENANT" under the Lease insofar as they relate to the Sublet
Premises, shall perform and comply with the terms, covenants and
conditions of the Lease as incorporated herein and shall not do or
suffer or permit anything to be done which would result in a default
under or cause the Lease to be terminated or forfeited.
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9. ASSIGNMENT AND/OR SUBLETTING. (a) Sublessee shall have neither the
right to assign this Sublease nor the right to sublet the Sublet Premises or
any part thereof without the prior consent of Sublessor and Landlord. A
transfer of more than a 50% beneficial interest in Sublessee, whether such
transfer occurs at one time or in a series of related transactions, shall be
deemed an assignment of this Sublease requiring the consent of Sublessor and
the Landlord.
10. BROKERS. Sublessee represents that it has not negotiated with or
consulted with any real estate brokers or agents in connection with this
Sublease. Sublessee shall indemnify and hold Sublessor harmless from and
against any loss, cost or expense, including attorneys' fees, disbursements,
and court costs, incurred by Sublessor arising out of facts contrary to the
foregoing representation. The provisions of this paragraph shall survive the
expiration or earlier termination of this Sublease.
11. DEFAULT. In the event that Sublessee shall default in any of its
obligations hereunder, including without limitation, its obligations to pay
Sublessee's Charges, and Sublessee has not cured or is not proceeding to cure
such default in accordance with the provisions of the Leases, as modified by
Paragraph 8 of this Sublease, Sublessee shall reimburse Sublessor for all
expenses, including without limitation, reasonable attorneys' fees incurred by
Sublessor in asserting its rights hereunder against Sublessee or any other
party.
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12. WAIVER OF SUBROGATION. Sublessee and Sublessor release each other
and waive any right of recovery against each other for loss or damage to their
respective property, which occurs in or about the Sublet Premises (whether due
to the negligence of either party, their agents, employees, officers,
contractors, licensees, invitees or otherwise), to the extent that such loss or
damage is reimbursed by insurance proceeds. Sublessee agrees that all policies
of insurance obtained in connection with the Sublet Premises shall contain
appropriate waiver of subrogation clauses.
13. LIMITATION OF LIABILITY. The obligations of Sublessor under this
Sublease do not constitute personal obligations of Sublessor or the individual
partners, shareholders, directors, officers, employees or agents of Sublessor,
and Sublessee shall look solely to Sublessor's interest in the Sublet Premises,
and to no other assets of Sublessor, for satisfaction of any liability in
respect of this Sublease, and will not seek recourse against the individual
partners, shareholders, directors, officers, employees or agents of Sublessor
or any of their personal assets for such satisfaction.
14. CASUALTY. If the Sublet Premises shall be partially or totally
damaged or destroyed by fire, casualty or other causes as a consequence of
which Sublessor shall, pursuant to the Lease, become entitled to receive an
abatement of rent with respect to the Sublet Premises, there shall be an
abatement of the rent portion of Sublessee's Charges hereunder in the same
manner. This Sublease shall not be terminated as a consequence of any such
damage or destruction except in the event that the Lease is terminated by
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Landlord pursuant to the provisions of the Lease. Sublessor shall consult with
Sublessee prior to exercising its right to terminate the Lease.
15. NOTICES. All notices, demands, consents, requests or other
communication under this Sublease (a "NOTICE") which may be or are required to
be given hereunder shall be in writing and shall be given by personal delivery,
by telecopy or by mailing the same by registered or certified mail, return
receipt requested, addressed, if to the Sublessor, at the address set forth
above and if to the Sublessee, at the address set forth above or at the address
of the Sublet Premises. Either party may by notice to the other change the
address to which notices to such party shall thereafter be given. Sublessor
shall promptly, upon receipt of any notice from Landlord, deliver a copy of
such notice to Sublessee. All notices shall be deemed given when personally
delivered or telecopied, or 48 hours after having been duly deposited in the
mails.
16. ENTIRE AGREEMENT. This Sublease contains the entire agreement
between the parties and may not be modified except by a written agreement
signed by the party to be charged.
17. LANDLORD'S CONSENT. If Landlord does not consent to this Sublease
within thirty (30) days of the date hereof, the Sublease shall be deemed null
and void, neither party shall have any further rights or obligations hereunder
and Sublessor shall return to Sublessee any Sublessee's Charges paid by
Sublessee.
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18. BINDING EFFECT. The covenants and agreements herein contained
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
19. COUNTERPARTS. This Sublease may be signed in one or more
counterparts, each when taken together shall constitute but one and the same
original.
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this
Sublease as of the day and year first above written.
KOSZEGI INDUSTRIES, INC.
By:
---------------------------
Name:
Title:
AMPLACO GROUP, INC.
By:
---------------------------
Name:
Title:
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