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Exhibit 10.3
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") made and entered into as
of this 1st day of February, 1995, by and between AMPOINT, a division of Xxxx
Corporation, an Ohio corporation ("Lessor"), and GLASSTECH, INC., an Ohio
corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor desires to lease to Lessee and Lessee desires
to lease and take from Lessor the premises identified on Exhibit "C" (the
"Premises") and consisting of approximately 43,200 square feet of space located
in Xxxxxxxx 0, Xxxx 3, at 350 "J" Street, in that certain industrial park
located in Perrysburg Township, Wood County, Ohio, and commonly known as Ampoint
Industrial Complex (the "Complex") upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the rents herein reserved,
the other terms and conditions hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, Lessor and Lessee hereby agree as follows:
SECTION 1. PREMISES.
Upon the terms and conditions hereinafter set forth, Lessor
hereby leases to Lessee and Lessee hereby hires and takes from Lessor the
Premises. In addition, Lessee shall have the non-exclusive right during the Term
(as hereinafter defined) for Lessee and its agents, employees, and invitees to
use those parking areas adjacent to the Premises and which are designated on
Exhibit "A," for the purpose of passenger vehicle (and truck) parking, subject
to Section 4.
SECTION 2. TERM.
The term of this Lease (the "Term"), shall commence on
February 1, 1995, and unless sooner terminated as hereinafter provided, shall
end at 11:59 p.m. on January 31, 1998.
SECTION 3. RENT AND SURVIVAL OF OBLIGATIONS.
3.1 Lessee shall pay Lessor as base rent (the "Base Rent") for
the Premises during the Term of this Lease the total sum of Two Hundred Fifty
Two Thousand, Seven Hundred Twenty Dollars ($252,720), payable in monthly
installments as set forth on Exhibit "B," each in advance on the first day of
each calendar month, in lawful money of the United States of America at the
address of Lessor specified for notices to Lessor in Section 34 or at such other
place designated from time to time by written notice from Lessor to Lessee,
except that the first monthly installment shall be paid at the signing of this
Lease. To the extent that the Term commences on a day other than the first day
or ends other than on the last day of a calendar month, Base Rent for such month
shall be prorated based on the number of days of such month which are included
in the Term divided by the total number of days in such month.
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3.2 In addition to the Base Rent, during the Term Lessee shall
pay to Lessor promptly (and in no event later than twenty (20) days after
written request therefor from Lessor or such shorter period provided herein) any
and all charges, costs and expenses of every kind and nature whatsoever, other
than the Base Rent, payable by Lessee to Lessor, pursuant to this Lease
("Additional Rent"). For the purposes of this Lease, the term "Rent" shall mean
Base Rent and Additional Rent.
3.3 In the event real estate taxes and assessments payable
with respect to the Premises exceed such taxes and assessments paid with respect
to the 1994 calendar year, Lessee shall pay as Additional Rent thereafter the
entire increase in such real property taxes and assessments attributable to the
Premises during the entire period of the Term.
3.4 The covenant and obligation of Lessee to pay Rent
hereunder shall be unconditional and independent of any other covenant or
condition imposed on either Lessor or Lessee whether under this Lease, at law,
or in equity.
3.5 Any Rent or other amounts payable by Lessee to Lessor
which are not paid on or before the date provided in this Lease (or, in the case
of amounts due pursuant to Sections 18 or 21, from the date paid, advanced, or
expended by Lessor) shall bear interest at a rate equal to the lesser of: (a)
the highest rate permitted by law or (b) two percent (2%) per annum above the
prime rate published from time to time in the WALL STREET JOURNAL.
3.6 Any and all covenants and obligations of Lessee pursuant
to this Lease which are not or may not be fully observed and performed by Lessee
prior to the termination or expiration of this Lease (by lapse of time or
otherwise) shall survive such termination or expiration unless and except to the
extent hereafter expressly released by Lessor in writing.
SECTION 4. USE OF PREMISES.
4.1 Lessee shall occupy and use the Premises ceramic casting,
manufacturing, storage, and for no other purpose whatsoever. Lessee shall not
use, occupy, or permit the Premises or any portion thereof to be used or
occupied for any illegal purpose or for any business, use or purpose deemed by
Lessor to be disreputable or inconsistent with the character, quality, or
operation of the Complex as warehouse, distribution, or office facilities.
Lessee, in its use and occupancy of the Premises, shall not permit storage or
the accumulation of debris of any kind whatsoever on the exterior of the
building of which the Premises are a part.
4.2 Lessee shall, in its use and occupancy of the Premises and
in the exercise of its rights and the observance and performance of its
covenants and obligations hereunder, comply at its sole expense with all laws,
rules, regulations, orders, permits, and other requirements imposed by federal,
state, or local authorities having competent jurisdiction over the subject
matter thereof (collectively, "Applicable Legal Requirements") and with the
requirements of all policies of insurance of whatsoever nature which Lessor or
Lessee are required or permitted to maintain pursuant to this Lease
(collectively, "Insurance Requirements") and shall perform all construction of
and maintenance, repairs, alterations, additions and
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improvements to the Premises permitted or required by this Lease in a
first-class and workmanlike manner.
4.3 In its use and occupancy of the Premises, Lessee, its
agents, employees, and invitees shall observe faithfully and comply strictly
with the reasonable rules and regulations set by Lessor with respect to the
Premises as such rules and regulations exist on the date of execution of this
Lease and as the same may be amended from time to time hereafter.
SECTION 5. ENVIRONMENTAL MATTERS,
5.1 Lessee shall not cause or permit: (i) the presence of any
Hazardous Materials (as hereinafter defined) at, in or on the Premises, or (ii)
the release on or in, or other contamination of, the Premises with any Hazardous
Materials. Lessee shall indemnify, defend, and hold Lessor harmless from and
against any and all liability, damage, claims, causes of action, suits,
proceedings, costs and expenses (including without limitation reasonable
attorneys' and consultants' fees) of every kind or nature (collectively,
"Liabilities and Costs"), including, but not limited to, any liability under or
pursuant to any Environmental Laws (as hereinafter defined), arising from or
related to, or alleged to have arisen from or related to, the use, handling,
generation, storage, treatment, disposal, transportation or release of any
Hazardous Materials by, or permitted or authorized by, Lessee or its agents,
employees, or invitees. The provisions of this Section 5 shall survive the
termination or expiration of this Lease.
5.2 As used in this Section 5: (i) the term "Hazardous
Materials" shall mean asbestos or asbestos-containing materials, polychlorinated
byphenyls, urea formaldehyde, or waste, materials, chemicals or other substances
the use, disposal, storage, generation or treatment of which is governed or
regulated by any Environmental Laws; and (ii) the term "Environmental Laws"
shall mean any Applicable Legal Requirements now in effect or hereinafter
enacted, published, promulgated or issued relating to any Hazardous Materials,
health and safety, or pollution or protection of the environment.
SECTION 6. UTILITIES AND SERVICES.
6.1 During the Term, Lessor shall provide water, fire lines,
and sanitary sewer services to the Premises and shall charge Lessee therefor as
Additional Rent on the same basis and rate from time to time generally charged
for similar volume, or rate of water, or sewage to other tenants of the Complex
receiving such services and being separately charged therefor. Lessee shall
neither take nor suffer or permit any act, whether of commission or omission,
which would or might change, alter or modify the type or composition or which
would or might materially increase the volume or accelerate the rate of flow of
the sanitary sewage to be transported from the Premises from that existing on
the commencement date of the Term (without limiting the generality of the
foregoing, Lessee shall not use, suffer, or permit the use of, the sanitary
sewer system serving the Premises for the transportation of any materials,
chemicals or substances other than lavatory wastes). Notwithstanding anything to
the contrary in this Section 6.1, Lessor may at any time: (a) dedicate, sell, or
otherwise transfer to any governmental or quasi-governmental authority or other
person or entity the sanitary sewer system serving the Premises, or (b) elect to
have said water, fire lines or sewer services provided to the Premises by a
third party, in either of which events Lessee shall thereafter pay all charges
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therefor directly in the same manner provided for other utilities in Section 6.2
and Lessor shall have no further obligation pursuant to this Section 6.1 with
respect thereto.
6.2 Lessee shall pay as and when due and payable, directly to
the utility or third party providing the same, all charges for all gas,
electricity, telephone and other utilities, security systems, garbage collection
and similar services used or consumed in the Premises during the Term (other
than services provided by Lessor pursuant to Section 6.1).
SECTION 7. CONDITION OF PREMISES.
Lessee acknowledges and agrees that prior to the execution of
this Lease Lessee has inspected the Premises, that Lessee accepts the Premises
"as is," and that there have been no representations or warranties made by or on
behalf of Lessor with respect to the Premises or with respect to the suitability
of the Premises for the conduct of Lessee's business. The taking of possession
of the Premises by Lessee shall conclusively establish that the Premises were at
that time in satisfactory condition, order, and repair.
SECTION 8. LIABILITY OF LESSOR.
8.1 Neither Lessor nor any of its agents, employees, directors
or officers shall be liable for any injury, damage, or loss of any nature
whatsoever to persons or property (whether of Lessee or any other person)
occurring in, upon, or about the Premises, even if such injury, damage, or loss
arises out of or is due to or is asserted or alleged to arise out of or be due
to any act (whether of commission or omission) of Lessor or any of its agents,
employees, directors or officers; excepting any physical injury to persons or
physical damage to tangible property of third parties (expressly excluding
Lessee) caused solely by the negligence or willful misconduct of Lessor or
Lessor's employees acting within the scope of their employment. The liability of
Lessor under this Lease shall in any event be strictly limited to the interest
of Lessor in the Complex, and Lessor shall not be liable, either personally or
otherwise, for any deficiency.
8.2 Lessor shall not be responsible for and Lessee shall not
be entitled to any compensation or any abatement or diminution of Rent (or the
release from any of its other covenants or obligations under this Lease) or be
considered to be evicted due to any suspension, interruption or termination of
utilities or other services to the Premises, the necessity or desirability of
any maintenance, repairs, alterations, additions, improvements or replacements
in or to the Premises or the Complex, the existence, imposition or enforcement
of any Applicable Legal Requirements or Insurance Requirements, or the existence
pursuant to Section 26 of any event of force majeure.
SECTION 9. INDEMNIFICATION OF LESSOR BY LESSEE.
Lessee shall indemnify, defend, and hold Lessor harmless from
and against any and all Liabilities and Costs (including without limitation
claims for injury to any person or damage to property of Lessor, Lessee, or any
third party), whenever arising on or after the date hereof arising out of or due
to, or asserted or alleged to arise out of or be due to, any act (whether of
commission or omission) of Lessee or any of its agents, employees, or invitees
with respect to the Premises or in the exercise of Lessee's rights or the
observance or performance
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of Lessee's covenants and obligations under this Lease (or in breach or excess
thereof) or the use or occupancy of the Premises by Lessee or any of its agents,
employees, or invitees, whether or not any such Liabilities or Costs are
asserted by an agent, employee, or invitee of Lessee, and whether or not any
such Liabilities or Costs are based upon negligence; provided, however, that
Lessee shall not be responsible to indemnify, defend or hold Lessor harmless
with respect to any Liabilities or Costs caused solely by the negligence or
willful misconduct of Lessor or Lessor's employees acting within the scope of
their employment. Lessor shall have the right (but shall have no obligation) to
conduct its own defense with attorneys of its own selection, and Lessor shall
have the absolute right to approve or disapprove in its sole discretion any
settlement or compromise proposed by Lessee with any third party relating to any
claim asserted against or alleged liability of Lessor.
SECTION 10. INSURANCE.
10.1 At all times during the Term, Lessor at its sole expense
shall maintain fire and extended coverage insurance on a replacement cost basis
with such co-insurance and deductible provisions as Lessor may elect from time
to time covering the Premises; provided, however, that any such policy or
policies shall not insure the contents of the Premises which are the property of
any party other than Lessor or any improvements or installations made by Lessee.
Lessor may at its sole election obtain such insurance under a blanket insurance
policy or policies which cover not only the Premises but other properties. All
claims under such policies may be adjusted and all proceeds thereof shall be
received by and belong to Lessor only and Lessee shall have no rights thereto or
interest therein.
10.2 At all times during the Term, Lessee shall maintain at
its sole expense commercial general liability insurance (including without
limitation broadened coverage provisions insuring liability for explosion,
collapse, and damage to underground property) against claims for personal
injury, bodily injury, wrongful death and property damage occurring upon, in or
about the Premises or the Complex endorsed to cover all contractual and other
liabilities of Lessee pursuant to this Lease, affording at a minimum insurance
protection with a combined single limit of not less than $3,000,000. Such
insurance shall be underwritten by a reputable insurance company licensed to do
business in the State of Ohio and reasonably approved by Lessor. Lessor (and at
Lessor's request any mortgagees of the Premises) shall be named as an additional
insured on each such policy with the same single limit of coverage any
additional premium therefor to be paid by Lessee. Each such policy of insurance
shall to the extent obtainable at no extra premium provide: (a) that any claim
shall be payable notwithstanding any act, whether of commission or omission,
negligent or otherwise, of Lessor or Lessee, or of any agent, employee, or
invitee of either of them, which act might otherwise result in the forfeiture of
the insurance afforded by such policy and (b) that the policy will not be
canceled or modified to reduce coverage as to risk, amount or named insured
without at least fifteen (15) days prior written notice to both Lessor and
Lessee. Certificates evidencing such insurance and all replacements thereof
shall be delivered to Lessor prior to the commencement of the Term, and
thereafter, promptly and in no event later than fifteen (15) days prior to the
expiration of the policy being replaced. All certificates of insurance must
indicate thirty (30) days of cancellation or non-renewal to be provided to
Lessor.
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SECTION 11. WAIVER OF SUBROGATION.
Each policy of insurance required by either Sections 10. 1 or
10.2 shall provide an unconditional waiver and release by the insurer of any and
all claims and rights (including without limitation any and all rights of
subrogation) which said insurer might otherwise have against Lessor or Lessee,
as the case may be, for any casualty or liability insured by said insurance even
if such casualty or liability shall be caused or contributed to by any act
(whether of commission or omission, negligent or otherwise) of Lessor or Lessee,
as the case may be, or its agents, employees, invitees, or anyone for whom it
may be responsible (any additional premium or expense for which shall be paid by
Lessee or in the case of the insurance provided in Section 10.1 reimbursed to
Lessor by Lessee).
SECTION 12. DAMAGE AND DESTRUCTION.
12.1 In the event of any damage to or destruction of the
Premises or any portion thereof (or any building of which the Premises may then
be part) by fire or other casualty ("Damage or Destruction"), Lessor shall have
the obligation, to the extent and only to the extent of any recovery under the
fire and extended coverage insurance maintained by Lessor from time to time with
respect to the Premises, to repair or restore the Premises (as applicable) as
promptly and reasonably as possible (after first allowing a sufficient period
for the exercise of any right pursuant to Section 12.2). There shall be no
abatement or diminution of Rent with respect to any deprivation of Lessee of the
use or occupancy of the Premises or of any common areas of the Premises
whatsoever in connection with any such Damage or Destruction for the period in
which any portion of the Premises is unusable.
12.2 Notwithstanding anything contained in Section 12.1 to the
contrary, in the event of any Damage or Destruction which, in the judgment of a
reputable architect (the "Architect") selected by Lessor within thirty (30) days
thereof, cannot reasonably be repaired or restored within a period of six (6)
months of the occurrence of such Damage or Destruction, Lessor and (only in the
event of Damage or Destruction to the Premises) Lessee shall each have the right
to terminate this Lease by notice to the other party within ten (10) days after
notice of the determination by the Architect. Lessor may (but shall have no
obligation to) request a determination by the Architect unless Lessee shall,
within five (5) days after any Damage or Destruction occurs with respect to the
Premises request in writing to Lessor that such determination be made, in which
event such determination shall be made at Lessee's expense. In the event of the
termination of this Lease pursuant to this Section 12.2: (a) such termination
shall be effective sixty (60) days after the giving of such notice to terminate,
(b) there shall be no abatement or diminution of Rent prior to the date of such
termination, and (c) Lessor shall have no obligation to repair or restore the
Premises.
SECTION 13. EMINENT DOMAIN.
13.1 If the Premises shall be permanently taken as a result of
or in lieu of condemnation or eminent domain, this Lease shall terminate upon
the transfer of title in connection therewith.
13.2 If any of the following events occur: (a) any portion,
but less than all of the Premises (or any building of which the Premises may
then be a part), shall be permanently
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taken as a result of or in lieu of condemnation or eminent domain and as a
result of such event structural alterations or reconstruction of a portion of
the Premises are necessary or desirable in Lessor's judgment, or (b) as a result
of any such event specified in Subsection 13.2(a) hereof or as a result of any
other portion or portions of the Complex being so taken or as a result of all or
any portion of the Premises or the Complex being temporarily so taken, the area
of the Premises (as the case may be) remaining after such taking (taking into
consideration the period of time involved if a temporary taking), is such as to
render continued operation of either the Premises or the Complex economically
unfeasible by Lessor, then Lessor may at its sole option terminate this Lease by
notice given to Lessee within thirty (30) days after the latter of the
following: (i) the date upon which the proposed taking by such entity as a
result of or in lieu of condemnation or eminent domain becomes final or (ii) the
date upon which title to or possession of such portion of the Premises or
Lessee's interest in such portion of the Premises transfers to such entity. If
any of the foregoing events shall have occurred and this Lease is not terminated
by Lessor pursuant to this Section 13.2, this Lease shall be and remain in full
force and effect for the balance of the Term except that Base Rent shall xxxxx
in the proportion which that portion of the Premises of which Lessee is so
deprived (if any, and only for the period of deprivation in the event of a
temporary taking) bears to the entire Premises.
13.3 Lessor shall be entitled to receive the entirety of any
and all proceeds, awards, damages, or other compensation received in connection
with such taking and Lessee shall have no right to share in such proceeds,
awards, damages, or other compensation. Lessee hereby forever assigns to Lessor
all right, title, and interest which Lessee may now or hereafter have in any
such proceeds, awards, damages, or other compensation whatsoever; provided,
however, that nothing in this Section 13 shall preclude Lessee from separately
claiming or receiving from any such person, if legally payable, compensation for
the taking of Lessee's tangible property and for Lessee's removal and relocation
costs to the extent that the same are specifically and separately awarded by not
otherwise.
SECTION 14. LIENS AND ENCUMBRANCES.
Lessee shall not suffer or permit any lien or encumbrance
whatsoever to exist upon the Premises or the Complex or any of Lessee's right,
title, or interest in this Lease by reason of any act (whether of commission or
omission) of Lessee or any of its agents, employees, or invitees. If any such
lien or encumbrance suffered or permitted by Lessee shall at any time exist; (a)
Lessee shall cause any such lien or encumbrance suffered or permitted by Lessee
to be removed by bonding or discharge within fifteen (15) days after notice from
Lessor to do so, and (b) Lessee shall at Lessee's sole cost and expense defend
Lessor against any action, suit or proceeding which may be brought thereon for
the enforcement of the same, and shall indemnify, defend, and hold Lessor, the
Premises and the Complex, harmless from and against any and all Liabilities and
Costs and all judgments, liens, or charges arising by reason of or in connection
with any such action, suit, or proceeding.
SECTION 15. MAINTENANCE AND REPAIR.
15.1 Lessor shall, at its sole expense (except to the extent
chargeable to Lessee pursuant to Section 6.1) make all repairs necessary to
maintain in as good condition as on the date hereof the roof, gutters and
downspouts, foundation, floor slab, exterior walls (excluding
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windows, window frames, doors, door checks, door jams, overhead doors and
operators, door and window locks and hardware, and all glass), and structural
supporting columns. Lessor shall have no obligation to make any such repairs
until the expiration of a reasonable period of time after written notice that
such repair is needed is received by Lessor from Lessee. Lessor shall to the
extent reasonably feasible make all repairs required to be made by Lessor in
such a manner as will not unreasonably interfere with Lessee's use and occupancy
of the Premises. Lessor shall not be liable or responsible for any injury or
inconvenience to or interference with Lessee's use or occupancy of the Premises
or Lessee's business arising from the making of any repairs, alterations,
additions, or improvements in or to the Premises or to any fixtures,
appurtenances, or equipment therein and there shall be no abatement or
diminution of Rent by virtue of any such repairs, alterations, additions, or
improvements. Nothing in this Section 15.1 shall relieve Lessee from any
liability to Lessor pursuant to this Lease for any damage to the Premises or the
Complex caused by Lessee or any of its agents, employees, or invitees.
15.2 Lessee shall at its sole expense take good care of the
Premises and the fixtures, appurtenances, and equipment therein and shall keep
the same in good order and condition, excepting only normal wear and tear and
those matters as to which Lessor has the obligation to repair pursuant to
Section 12.1 or Section 15.1. Lessee shall not permit the accumulation of
garbage, rubbish, or other waste upon, in, or about the Premises.
15.3 Lessee shall at its sole cost and expense replace plate
glass and glass in doors in the Premises and shall repair or replace windows,
window frames, door checks, door jams, door and window locks and hardware,
overhead doors and operators, and any door operators in the Premises. In the
event Lessee substitutes tangible personal property or fixtures for any portion
of the Premises, the personal property or fixtures so substituted shall be
included under this Lease as part of the Premises.
SECTION 16. ALTERATIONS.
Lessee shall have the right at its sole expense to make from
time to time non-structural alterations, additions, improvements, and
replacements in and to the Premises; provided, however, that Lessee shall have
first obtained the written consent of Lessor in each instance. Lessee shall
comply with all terms and conditions established by Lessor in connection with
Lessor's consent. Lessee shall have no right to make any structural alterations,
additions, improvements, or replacements in or to the Premises.
SECTION 17. POSSESSION AND REMOVAL OF PROPERTY.
All alterations, additions, improvements and replacements made
by Lessee in and to the Premises as permitted or required by this Lease
(including without limitation Sections 15.2 and 16) shall become the property of
Lessor automatically upon construction or installation in the Premises and
without any payment to Lessee. Upon or before the termination or expiration of
this Lease, Lessee shall have the right to remove all of its furniture and other
personal property located upon, in, or about the Premises; provided, however,
that Lessee shall at its own expense repair any damage or injury caused to the
Premises by such removal. At the request of Lessor and at Lessee's sole expense,
Lessee shall remove any alterations, additions, improvements, and replacements
made by Lessee in and to the Premises as permitted or required
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by this Lease and shall restore the Premises to their condition prior to the
time such alterations, additions, improvements, or replacements were made.
SECTION 18. LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS.
If Lessee shall at any time fail or refuse to perform any of
its covenants or obligations hereunder, Lessor shall have the right upon five
(5) days' prior notice to Lessee, but shall not be obligated, to perform such
covenant or obligation without waiving or releasing Lessee from any liability.
All sums paid, advanced, or expended by Lessor pursuant to this Section 18 shall
be repaid to Lessor by Lessee on demand.
SECTION 19. SUBORDINATION AND ATTORNMENT; ESTOPPEL
CERTIFICATE.
This Lease is subject and subordinate to any and all mortgages
and other financings (and modifications) and to any dedication to any
governmental or quasi-governmental authority of a fee interest or easement in
the Premises for public rights of way, public utilities and related facilities,
or any similar purpose which may now or hereafter affect the Premises. Lessee
shall execute such estoppel certificates, attornments, and other instruments in
connection therewith as reasonably requested by Lessor or any such mortgagee or
other holder. The holder of any interest to which this Lease is subordinate or
any such purchaser or transferee shall not be (a) subject to any offsets or
deficiencies which Lessee might be entitled to assert against Lessor, (b) bound
by any payment of rent by Lessee to Lessor for more than one (1) month in
advance, or (c) bound by any amendment or modification to this Lease made
without the consent of such mortgagee or other holder. The provisions of this
Section 19 shall be self-operative, and no further instrument of subordination
shall be required by the mortgagee or other holder of any interest to which this
Lease is subordinate. Lessee agrees, however, whenever requested to do so upon
reasonable notice by Lessor, to execute such instruments and documents
reasonably necessary or desirable to confirm the provisions of this Section 19.
SECTION 20. SIGNS.
Lessee shall not place, install, affix, or permit any sign of
any nature on the exterior or in the windows of the Premises without first
obtaining the written consent of Lessor. All such approved signs shall be
installed and maintained by Lessee in compliance with all Applicable Legal
Requirements. Lessee shall pay all expenses and all license and permit fees
relating to the installation and maintenance of authorized signs and shall pay
all expenses for removal and costs of repairs resulting therefrom.
SECTION 21. SURRENDER OF PREMISES.
21.1 Upon the expiration or termination of this Lease (by
lapse of time or otherwise), Lessee shall deliver up and surrender the Premises
to Lessor, together with all additions, alterations, improvements and
replacements thereto (whether the same shall have been made by Lessor or Lessee
and without compensation or credit whatsoever to Lessee) in broom clean
condition and in good order and repair, normal wear and tear which Lessee is not
obligated under this Lease to repair only excepted, failing which Lessor may
restore the Premises to such condition, order, and repair at Lessee's sole
expense payable by Lessee to Lessor within ten (10) days after the date upon
which Lessee receives an invoice from Lessor. In connection with such delivery
and surrender of the Premises, Lessee shall subject to Section
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17 hereof remove all personal property located upon, in or about the Premises
whether belonging to Lessee or any person claiming under or through Lessee and
any such personal property not so removed by Lessee upon the termination of this
Lease (or in the case of any termination of this Lease by Lessor other than by
lapse of time within ten (10) business days after notice of such termination)
shall be considered abandoned by Lessee and Lessor may dispose of the same as it
deems expedient without any liability therefor to Lessee or any third party, at
Lessee's sole expense, payable by Lessee to Lessor within ten (10) days after
the date upon which Lessee receives an invoice from Lessor. Lessee shall deliver
up and surrender the Premises to Lessor at the end of the Term of this Lease
without notice of any kind and Lessee hereby waives all right to any such notice
as may be provided under any present or future laws.
21.2 Upon the expiration or termination of this Lease (by
lapse of time or otherwise), Lessee shall, if no Event of Default (as
hereinafter defined) then exists, have the right prior to such expiration or
termination to remove any trade fixtures owned by Lessee installed upon, in or
about the Premises and Lessee shall promptly repair and restore the Premises to
their condition prior to the time such trade fixtures were so installed. In any
event, Lessee shall at Lessee's sole expense remove any and all such trade
fixtures at Lessor's request and shall so repair and restore the Premises.
SECTION 22. RIGHT OF LESSOR TO CHANGE PUBLIC PORTIONS OF
PROJECT.
At any time Lessor shall have the right in its sole and
absolute discretion: (a) to change and to relocate the common areas of the
Complex from time to time; provided, however, that in no event shall Lessor make
any change which shall diminish the area of the Premises or which shall
unreasonably deprive Lessee of access to the Premises, and (b) to change the
name of the Complex from time to time hereafter and Lessor shall have no
obligation for any loss or damage to Lessee by reason thereof.
SECTION 23. HOLDOVER.
23.1 If, at the expiration of the Term, Lessee continues to
occupy the Premises with the written consent of Lessor, Lessee shall be a tenant
from month to month at a monthly base rent equivalent to 150% of Base Rent paid
by Lessee at the expiration of the then Term of this Lease, subject to all of
the other terms and conditions of this Lease and Lessee shall perform all of
Lessee's covenants and obligations hereunder (including without limitation all
obligations to pay Additional Rent as provided herein).
23.2 If, at the expiration of the Tenn or other termination of
this Lease, Lessee continues to occupy the Premises without the written consent
of Lessor or if no new agreement shall have been entered into by the parties
hereto, Lessee shall be a tenant at will only and such continued occupancy shall
not defeat Lessor's right to possession of the Premises at any time with or
without notice. In such event, Lessee shall pay to Lessor all damages sustained
by reason of Lessee's retention or possession of the Premises after such
expiration.
SECTION 24. DEFAULT.
24.1 Any of the following shall constitute an event of default
by Lessee under this Lease ("Event of Default"):
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a. the failure of Lessee to pay Rent or any other
amounts payable by Lessee hereunder at the time and
in the manner provided herein;
b. the failure of Lessee to perform any other covenant
or obligation or to comply with any other term or
condition imposed upon Lessee under this Lease, if
such failure shall continue for a period of ten (10)
days after Lessee receives written notice thereof
from Lessor;
c. if Lessee becomes insolvent (either in the bankruptcy
sense or equity sense), makes an assignment for the
benefit of creditors, applies for the appointment of
a trustee, liquidator, or receiver of any substantial
part of its assets, or commences any proceeding
relating to itself under any bankruptcy,
reorganization, arrangement, or similar law; or
d. if any such application is filed, any such proceeding
is commenced against Lessee and Lessee indicates its
consent thereto, or an order is entered appointing
any such trustee, liquidator, or receiver, or
approving a petition in any such proceeding and with
such order remaining in effect for sixty (60) days.
24.2 If an Event of Default shall have occurred, then, in
addition to all other rights and remedies which Lessor may have whether
hereunder, at law, or in equity, Lessor may by three (3) days' prior notice to
Lessee terminate this Lease or without terminating this Lease and without notice
re-enter the Premises by summary proceedings or otherwise and in any event may
dispossess Lessee. No re-entry or taking of possession of the Premises by Lessor
shall be construed as an election on Lessor's part to terminate this Lease,
unless a written notice of such intention is given to Lessee. Lessee agrees to
be and remain liable for: (a) all Rent and other charges and sums due hereunder;
and (b) all Liabilities and Costs that may be based upon any breach of or
default under any of the terms, covenants, obligations, and conditions of this
Lease by Lessee which liability shall survive the termination of this Lease, the
re-entry of Lessor, and the issuance of any action to secure possession of the
Premises. Lessor shall have the right to maintain successive actions against
Lessee for recovery of all Liabilities and Costs or for said Rent and other
charges and sums payable hereunder as and when said Rent and other charges and
sums are payable hereunder and Lessor shall not be required to wait to begin
such actions or legal proceedings until the date this Lease would have expired.
In the event of re-entry, Lessor may, on behalf of Lessee, or, if this Lease is
terminated, on its own behalf, without being obliged to do so in either event,
relet the Premises, in whole or in part, for any period for any sum (including
without limitation any rental concession and rent-free occupancy) which it may
deem reasonable to any tenant which it may deem suitable and satisfactory and
for any use and purpose which it may deem appropriate. In the event of
reletting, Lessor may apply the rent therefrom first to the payment of its
expenses (including without limitation attorneys' fees) in reletting the
Premises or any part thereof, commissions, and the repair, improvement and
alteration of the Premises or the portions so leased, and then to the payment of
Rent and all other charges and sums due from Lessee hereunder, Lessee remaining
liable for any deficiency. The failure of Lessor to relet, or if relet, to
collect the rent under such reletting, shall not
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release or affect Lessee's liability hereunder for all Liabilities and Costs.
Lessee waives all right and privilege of redemption of the Premises or
continuation of this Lease which it might otherwise have hereunder, at law, or
in equity after an Event of Default.
SECTION 25. RIGHT OF ACCESS.
25.1 Lessor, any mortgagee or holder of any interest in the
Premises or the Complex, and their agents and employees shall have the right to
enter any portion of the Premises at all reasonable times for the purpose of
examining and inspecting the Premises, for any purpose whatsoever related to the
safety and preservation of the Premises, exhibiting the same to any prospective
purchaser or mortgagee or tenant, making such repairs, replacements,
alterations, or improvements to the Premises or the Complex as Lessor may deem
necessary or desirable, and performing or carrying out any of Lessor's rights
under this Lease.
25.2 Lessor shall have the right to erect, use, and maintain
in and through the Premises plumbing and electrical pipes, conduits, wire,
heating, ventilating, and air-conditioning ducts serving the Complex as Lessor
shall deem necessary or desirable in and through the Premises providing that
installation will not unreasonably interfere with Lessee's use of the Premises.
SECTION 26. FORCE MAJEURE.
Lessor shall have no responsibility or liability whatsoever
for and shall be excused from the observance or performance of any covenant or
obligation of Lessor hereunder (including without limitation Lessor's
obligations pursuant to Section 6.1 hereof) to the extent that the same is
rendered impossible, impracticable or economically unfeasible in whole or in
part, by an act of God (including without limitation lightning, storm, flood,
tornado or earthquake); fire; explosion; Applicable Legal Requirements
(including without limitation any prohibition or restriction upon the charges
which may be made by Lessor to Lessee or other tenants or third parties
receiving the types of services contemplated by Section 6.1 hereof); strikes;
lockouts; shortages of labor, fuel or materials; acts of the public enemy; war
(declared or undeclared); riot or insurrection; the discontinuation, suspension,
or interruption of or interference with any utility service supplied to Lessor
or Lessee by any third party; or any other cause or circumstance beyond the
control of Lessor. In no event shall any such delay or hindrance in or
prevention from the performance of any such covenant or obligation constitute a
termination of this Lease or the eviction of Lessee from the Premises. Lessor
shall in no event be required to settle or compromise any strike, lockout or
other labor difficulties or disputes, the resolution thereof being within the
sole discretion of Lessor.
SECTION 27. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy specified herein or otherwise conferred
upon or reserved to Lessor or Lessee, as the case may be, shall be considered
exclusive of any other right or remedy, but the same shall be cumulative and
shall be in addition to every other right and remedy whether hereunder, at law,
or in equity, and every such right and remedy may be exercised by Lessor or
Lessee as the case may be from time to time and as often as occasion may arise
or as may be deemed expedient.
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SECTION 28. WAIVER.
No waiver by either party to this Lease of any default or
breach by the other party in the performance of any of the covenants or
obligations of such other party under this Lease shall be deemed to have been
made unless contained in writing executed by the party waiving the breach or
default. No such consent or waiver shall be deemed or construed to be a consent
to or waiver of any other such breach or default. Failure or delay on the part
of either party hereto to complain of any act (whether of commission of
omission) of the other party hereto or to declare a breach of or default under
this Lease, irrespective of how long such failure or delay continues, shall not
constitute a waiver by such party hereto of its rights hereunder. No acceptance
by Lessor of any payment of Rent or other amount due or owing under this Lease
shall be deemed a waiver of any default or breach by Lessee in the performance
of any of Lessee's covenants or obligations under this Lease. The receipt by
Lessor of less than the full Rent due under this Lease shall not be construed to
be other than a payment on account of Rent then due under this Lease, nor shall
any statement on Lessee's check or any letter accompanying Lessee's check be
deemed an accord and satisfaction with respect to any such Rent, and Lessor may
accept such payment without prejudice to Lessor's right to recover the balance
of Rent due or to pursue any other rights and remedies provided in this Lease,
at law, or in equity. No act (whether of commission or omission) of Lessor or
Lessor's agents, employees, directors or officers during the Term of this Lease
shall be deemed an acceptance of the surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by Lessor.
SECTION 29. MORTGAGEE'S APPROVALS, CONSENT AND REQUIREMENTS.
Any provisions of this Lease requiring the approval or consent
of Lessor shall not be deemed to have been unreasonably withheld if any
mortgagee or other holder of an interest in the Premises or any portion thereof
shall refuse or withhold its approval or consent thereto. Any requirement of
Lessor pursuant to this Lease which is imposed pursuant to the direction of any
mortgagee of the Premises or any portion thereof shall be deemed to have been
reasonably imposed by Lessor if made in good faith.
SECTION 30. SUCCESSORS AND ASSIGNS.
This Lease shall be binding upon and shall inure to the
benefit of Lessor and Lessee and their respective heirs, administrators,
executors, successors, and permitted assigns.
SECTION 31. THIRD PARTY RIGHTS.
Nothing herein expressed or implied is intended to or shall be
construed to confer upon or give to any person or entity other than the parties
hereto any right or remedy under or by reason of this Lease.
SECTION 32. TIME OF THE ESSENCE,
Time is of the essence of this Lease and each and every term
and condition hereof.
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SECTION 33. BROKERS.
Lessee represents and warrants to Lessor that it has
negotiated this Lease solely and directly with Lessor and that no other person
or entity assisted in or brought about on Lessee's behalf the negotiation of
this Lease in the capacity of broker, agent, finder or originator. Lessee agrees
to indemnify and hold harmless Lessor from any Liabilities and Costs that may be
based upon or may be asserted or alleged to be based upon any broker's or
agent's commission or finder's or originator's fee or any other compensation to
any person or entity with respect to the transaction contemplated by this Lease
where such Liabilities and Costs arise out of or are asserted or alleged to
arise out of any act (whether of commission or omission) of Lessee or any of its
agents, employees, officers and directors.
SECTION 34. NOTICES.
34.1 All notices and other communications required or
permitted hereunder to be given by either party to the other party shall be in
writing and shall be deemed to have been given if delivered personally to a
corporate officer or managing agent of such other party or two (2) days after
mailed by certified or registered mail, postage prepaid, return receipt
requested, and addressed to such other party as follows:
If to Lessor: AMPOINT
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxxx
If to Lessee: GLASSTECH, INC.
000 0xx Xxxxxx - Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
or to such other address or representative as may be designated from time to
time by such other party by notice given in the manner provided in this Section
34.1 or with respect to Lessee by leaving said notice at the Premises.
34.2 In the event that the Premises or any part thereof are
now or at any time hereafter during the Term subject to a mortgage or other
interest and provided that Lessee has been notified in writing of the name and
address of the holder thereof, Lessee shall, as long as said mortgage interest
shall exist, simultaneously with the giving of any notice to Lessor give a copy
of said notice to the mortgagee or other holder of said interest.
SECTION 35. FLOOR LOAD.
Lessee shall not place or permit to be placed upon any floor
of the Premises any item of any nature or items the aggregate weight of which
shall exceed the floor's rated floor load limit of one thousand pounds (1,000
lbs.) per square foot.
SECTION 36. ASSIGNMENT AND SUBLETTING.
Lessee shall not assign or in any manner transfer this Lease
or any estate or interest therein or sublet the Premises or any part thereof
without the prior written consent of
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Lessor in each instance, which consent shall not be unreasonably withheld.
Notwithstanding any assignment or subletting, Lessee shall at all times remain
fully responsible and liable for the performance of all of Lessee's covenants
and obligations under this Lease. Lessee shall not mortgage, pledge or otherwise
encumber its interest or estate in this Lease or in the Premises. The consent of
Lessor to any assignment, subletting, or transfer shall not constitute a waiver
of Lessor's right to consent to any subsequent assignment, subletting, or
transfer.
SECTION 37. QUIET ENJOYMENT.
Upon observing and performing the covenants and obligations on
Lessee's part to be observed and performed under this Lease, Lessee shall and
may peaceably and quietly have, hold, and enjoy the Premises during the Term
without any hindrance of any person whomsoever claiming by or through Lessor,
subject, however, to all the terms and provisions of this Lease.
SECTION 38. SEVERABILITY.
If any term or condition of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such term or
condition to any other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
SECTION 39. ENTIRE AGREEMENT: NO ORAL MODIFICATIONS.
Lessor and Lessee acknowledge and agree that as between them
there are no terms, conditions, covenants, obligations, representations, or
warranties, expressed or implied, collateral or otherwise, forming part of or in
any way affecting or relating to this Lease, except as expressly set forth
herein, and that this Lease constitutes the entire agreement between them. This
Lease may not be modified, amended, or supplemented, except by a subsequent
agreement in writing, executed by both Lessor and Lessee.
SECTION 40. APPLICABLE LAW.
This Lease has been executed in the State of Ohio and shall be
governed in all respects by the laws of the State of Ohio.
SECTION 41. EXECUTION.
This Lease shall become effective when it has been signed by a
duly authorized officer or representative of each of the parties and has been
delivered to the other party hereto. This Lease is being executed simultaneously
in multiple counterparts. Each fully executed counterpart shall be deemed an
original and it shall not be necessary in making proof of this Lease to produce
or account for more than one such counterpart.
SECTION 42. CAPTIONS AND EXHIBITS.
The section captions contained in this Lease are for
convenience of reference only and are not intended and shall not be deemed or
construed to limit, enlarge or affect the scope or meaning of this Lease or any
term or condition hereof. Section references are TO the corresponding Sections
of this Lease. All capitalized references to "Exhibit" in this Lease shall mean
the corresponding exhibit attached to, and made a part of, this Lease.
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SECTION 43. MEMORANDUM OF LEASE.
Each of the parties hereto agrees that it shall not publicly
record this Lease. Each of the parties agrees to execute and deliver, upon the
request of the other party hereto, a memorandum of this Lease in form and
substance reasonably satisfactory to each party hereto ("Memorandum of Lease")
which may be publicly recorded by either party.
SECTION 44. RELOCATION
44.1 Lessor shall have the right at any time from the date of
this Lease through the end of the Term, inclusive, to relocate the Premises or
any part thereof to another part of the Complex upon the following conditions:
(1) the Premises or such part thereof as so relocated shall be substantially the
same in size, dimensions, configuration, decor and nature as the Premises or
such part thereof before such relocation, and shall be placed in that condition
by Lessor at its sole cost and expense, (2) Lessor shall give Lessee at least
thirty (30) days written notice of Lessor's intention to so relocate the
Premises or such part thereof, (3) the physical relocation of the personal
property of Lessee upon, in and about the Premises or such part thereof at the
time of such relocation shall be accomplished (a) at the sole cost and expense
of Lessor, and (b) in a manner so as to interrupt and inconvenience Lessee and
its use and occupancy of the premises or such part thereof to the minimum extent
reasonably possible, and (4) if the Premises or such part thereof as so
relocated comprise a greater amount of rentable space than that in the Premises
or such part thereof before such relocation, the Base Rent shall be increased by
a proportion equal to the proportion of such increase in such rentable space.
44.2 Upon the occurrence of any such relocation pursuant to
Section 44.1, the parties hereto shall immediately execute an amendment to this
Lease reflecting the relocation of the Premises and the increase of Base Rent,
if any, and at the request of either party hereto an amendment to the Memorandum
of Lease (as defined in Section 43), if any, which amendment to the Memorandum
of Lease may thereafter be recorded by either party.
SECTION 45. SECURITY DEPOSIT.
($6,840) as security for the full and faithful performance of each of the
obligations and covenants imposed upon Lessee under this Lease. If Lessee shall
default in the payment of Rent or in the performance of any other covenant or
obligation, Lessee hereby authorizes Lessor, at Lessor's election, without
notice and without terminating this Lease, to apply the funds so deposited as
security in the payment of any Rent due hereunder or in remedying any other
default hereunder. Any action taken by Lessor under this Section 45 shall not be
construed to be a waiver of any other rights or remedies of Lessor whether under
this Lease, at law, or in equity, or any of Lessor's rights in case of any
subsequent default to enforce any such right or remedy including without
limitation the rights and remedies set forth in this Section 45. If said
security or any part thereof is used, applied, or retained in curing any such
default, Lessee upon demand shall immediately deposit with Lessor as additional
security an amount in cash equal to the amounts so used, applied, or retained,
and if Lessee shall fail to do so, such failure shall constitute a default under
this Lease, affording Lessor the same rights and remedies as a default in
payment of Rent. Within sixty (60) days after the expiration of the Term,
whether by lapse of time or otherwise, provided Lessee shall not be in default
under this Lease and shall have complied with all of the covenants and
obligations imposed upon Lessee under this Lease,
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including, without limitation, the yielding up of the immediate possession of
the Premises to Lessor, Lessor shall upon being furnished with affidavits and
other satisfactory evidence by Lessee that Lessee has paid all bills incurred by
Lessee in connection with Lessee's performance of all such covenants and
obligations, return to Lessee said sum on deposit or such portion thereof then
remaining on deposit with Lessor hereunder. No interest shall be payable on
Lessee's security deposit, which deposit shall not be held in trust by Lessor
and may be co-mingled with Lessor's other funds.
IN WITNESS WHEREOF, the parties hereto have executed or caused
to be executed this Lease on the day and year first above written.
AMPOINT,
a division of Xxxx Corporation
By: /s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx, President
GLASSTECH, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
V.P. Manufacturing (Title)
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