EXHIBIT 10.25
XXXXXX-XXXXXXXXX PARTNERS
-------------------------
WAREHOUSE/DISTRIBUTION/MANUFACTURING
------------------------------------
AGREEMENT OF LEASE
------------------
THIS LEASE made this 7th day of November, 1997, by and between XXXXXX-
XXXXXXXXX PARTNERS LTD., hereinafter referred to as the Lessor, and PRESTOLITE
POWER CORPORATION, hereinafter referred to as Lessee. The Lessee's business
enterprise is organized as a Corporation and is admitted to do business in the
State of Ohio.
W I T N E S S E T H:
The Lessor does hereby lease and let to the Lessee and the Lessee
accepts from the Lessor under the terms and conditions of this Lease, the
following described Premises:
40,000 square feet of a building which contains 160,000 square feet
more or less at 0000-0000 Xxxxxxxxx Xxx, Xxxx, Xxxx 00000 hereinafter referred
to as the Leased Premises.
ARTICLE 1. TERM.
TO HAVE AND TO HOLD unto the Lessee for a term of nine (9) years, one
(1) month commencing on the 1st day of October 1997, and ending on the 31st day
of October 2006, both dates inclusive. Provided however, the Lessee is granted
a right to terminate the Leased Premises in accordance with Article 35.
ARTICLE 2. LEASED PREMISES.
The Leased Premises, as shown on Exhibit A hereto attached, are
delivered to the Lessee in their existing condition which the Lessee has
examined and finds in a condition suitable to its use and purpose.
ARTICLE 3. POSSESSION. INTENTIONALLY OMITTED.
ARTICLE 4. RENT.
Section 1. Lessee shall pay to the Lessor as Annual Rent for the
---------
Leased Premises for the first five (5) Lease years the sum of ONE HUNDRED FIFTY-
EIGHT THOUSAND AND NO/100 DOLLARS ($158,000.00) which shall be paid in equal
monthly installments of THIRTEEN THOUSAND ONE HUNDRED SIXTY-SIX AND 67/100
DOLLARS ($13,166.67), due and payable on the first day of each month, in
advance, without demand. Lessee shall pay to the Lessor as Annual Rent for the
Leased Premises for years 6 through 9th year, one month the sum of ONE HUNDRED
SIXTY-EIGHT THOUSAND AND NO/100 DOLLARS $168,000.00) which shall be paid in
equal monthly installments of FOURTEEN THOUSAND AND NO/100 DOLLARS ($14,000.00)
due and payable on the first day of each month, in advance, without demand.
Checks should be made payable to Xxxxxx-Xxxxxxxxx Partners Ltd. and sent c/o
Xxxxxx-Xxxxxxxxx Group, Xxxx Xxxxxx Xxx 000, Xxxxxx, Xxxx 00000-0000. Said rent
shall be paid to the Lessor, or to the duly authorized agent of the Lessor, at
its office during business hours. If the commencement date of this Lease is
other than the first day of the month, any rental adjustment or additional rents
hereinafter provided for shall be prorated accordingly. The Lessee will pay the
rent as herein provided, without deduction whatsoever, and without any
obligation of the Lessor to make demand for it. Any installment of rent
accruing hereunder and any other sum payable hereunder, if not paid when due,
shall bear interest at the rate of eighteen percent (18%) per annum until paid.
4
ARTICLE 5. SECURITY DEPOSIT. INTENTIONALLY OMITTED.
ARTICLE 6. COMMON AREA.
For the purpose of this Lease, common area shall be defined as all of
the property described herein that is not actually occupied by the building.
The Lessee shall have the use in common with other Lessees to the parking areas
and driveways for ingress and egress to the Leased Premises. The Lessee shall
have no right to use the common area for storage purposes and trash shall be
stored only in approved containers in the common area. The Lessor shall
maintain the common area and keep the same in good order and repair, including
landscaping, snow and ice removal, parking/drive/sidewalk sweeping, maintenance
and repairs, signage maintenance and repairs and electric maintenance and
repairs. Lessor and Lessee acknowledge that the costs for the foregoing,
together with exterior lighting and certain other costs, are included in the
Annual Rent and Lessee shall have no additional obligation with respect thereto.
ARTICLE 7. USE OF LEASED PREMISES.
Section 1. The Leased Premises shall be used and occupied only for
---------
office purposes and/or warehousing and distribution of materials of light or
ordinary hazard, for manufacturing operations and laboratory space and for no
other purpose or purposes without the written consent of the Lessor.
Section 2. The Lessee shall operate its business in a safe and proper
---------
manner as is normal, considering the uses of the Leased Premises above provided;
and shall not manufacture, store, display or maintain any products or materials
that will endanger the Leased Premises; shall do nothing that would increase the
cost of insurance on the building or invalidate existing policies; shall not
obstruct the sidewalks; shall not use the plumbing for any other purpose than
for which it was constructed; shall not make or permit any noise and/or odor
objectionable to the public or adjacent occupants; shall not create a nuisance
on the Leased Premises; and shall commit no waste.
Section 3. The Lessee shall abide by all police and fire regulations
---------
concerning the operation of its business; shall store all trash, rubbish, and
debris in closed containers; and shall practice all proper procedures and
methods that are common to its business enterprise. The Lessee shall maintain a
minimum temperature in the Leased Premises of 55 degrees F.
ARTICLE 8. REPAIRS.
Section 1. Lessor shall keep the foundations, exterior walls (except
---------
plate glass or glass or other breakable materials used in structural portions)
and roof in good repair.
Section 2. Generally, the Lessee shall, at its expense, maintain the
---------
mechanical equipment servicing the Leased Premises. Lessee shall use a
mechanical contractor satisfactory to Lessor. The Lessee shall replace any hot
water heater as the need should arise with the same type and quality servicing
the Leased Premises. The Lessor shall replace, as needed, the heating and air
conditioning equipment, provided the unit has been serviced annually, and the
cost of replacement shall be prorated over the warranty period for such
equipment, and further prorated among the Lessee benefiting from such equipment;
the result of such proration to be an annual share of cost to Lessee, and the
Lessee will pay one-twelfth thereof for each month during the remaining term and
renewals of this Lease.
Section 3. Lessor shall not be liable for any damage done or
---------
occasioned by or from the electrical system, the heating and/or air condition
system, the plumbing and sewer system in, above, upon or about the Leased
Premises nor for damage occasioned by water, snow or
5
ice being upon or coming through the roof, trapdoor, walls, windows, doors or
otherwise, except as above provided. The Lessee shall reimburse the Lessor the
cost of all repairs to the Leased Premises, fixtures and appurtenances
necessitated by the fault of the Lessee, its agents, employees or guests and
shall reimburse the Lessor for the cost of repair, at or before the end of the
term or sooner if so requested by Lessor, all injury done by the installation or
removal of furniture or other property.
Section 4. Except as provided in Sections 1, 2, and 3 of this
---------
Article, Lessor shall not be obligated to make repairs, replacements or
improvements of any kind upon said Leased Premises, or any equipment facilities
or fixtures therein contained, which shall at all times be kept in good order,
conditions and repair by Lessee, and in a clean, sanitary and safe condition and
in accordance with all applicable laws, ordinances and regulations of any
governmental authority having jurisdiction. Lessee shall permit no waste,
damage, or injury to the Leased Premises.
Section 5. Lessee shall forthwith at its own cost and expense replace
---------
with glass of the same kind and quality any cracked or broken glass, including
plate glass or glass or other breakable materials used in structural portions,
and any interior and exterior windows and doors in the Leased Premises.
ARTICLE 9. INSTALLATIONS AND ALTERATIONS.
Section 1. Lessee shall not make any alterations or additions to the
---------
Leased Premises without first procuring Lessor's written consent and delivering
to Lessor the plans and specifications and copies of the proposed contracts and
necessary permits, and shall furnish indemnification against liens, costs,
damages and expenses as may be reasonably required by Lessor. All alterations,
additions, improvements and fixtures, other than trade fixtures, which may be
made or installed by either of the parties hereto upon the Leased Premises and
which in any manner are attached to the floors, walls or ceilings, at the
termination of this Lease shall become the property of Lessor, unless Lessor
requests their removal, and shall remain upon and be surrendered with the Leased
Premises as a part thereof, without damage or injury; any linoleum or other
floor covering of similar character which may be cemented or otherwise
adhesively affixed to the floor shall likewise become the property of Lessor,
all without compensation or credit to Lessee.
Section 2. The Lessee shall not erect or install any signage
---------
without first procuring Lessor's written consent.
Section 3. The Lessee shall have no rights to use and shall not use
---------
the roof of the Leased Premises for any purpose without the written consent of
the Lessor. The Lessee shall not use the roof for storage, for any activity
that will result in traffic on the roof, for anything that will penetrate the
roof, use the roof as an anchor or otherwise damage the roof. The consent of
the Lessor must be in writing for each specific use and must also approve the
method of installation of the permitted use. Should the Lessee break this
covenant, the Lessee shall be responsible for any damages caused to the roof or
other parts of the building and shall assume the cost of maintaining and
repairing the roof during the term of the Lease, including any renewals.
ARTICLE 10. INDEMNIFICATION.
Except to the extent of the negligence or misconduct of Lessor, Lessee
agrees to indemnify and hold Lessor harmless against and from any and all
claims, damages, costs, and expenses, including reasonable attorney's fees,
arising out of Lessee's use or occupancy of the Leased Premises. Except to the
extent of Lessee's negligence or misconduct, Lessor agrees to indemnify and hold
Lessee harmless against and from any and all claims, damages, costs, and
expenses,
6
including reasonable attorney's fees, arising out of Lessor's failure to perform
its duties and obligations as owner or agent of the owner of the property of
which the Leased Premises is a part.
ARTICLE 11. INSURANCE.
Section 1. Lessee shall not carry any stock of goods or do anything
---------
in or about said Leased Premises which will in any way tend to increase
insurance rates on said Leased Premises or the building in which the same are
located. If Lessor shall consent to such use, Lessee agrees to reimburse Lessor
on a pro rata basis for any increase in premiums for insurance against loss by
fire or extended coverage risks resulting from the business carried on in the
Leased Premises by Lessee. If Lessee installs any electrical equipment that
overloads the power lines to the building, Lessee shall at its own expense make
whatever changes are necessary to comply with the requirements of insurance
underwriters and insurance rating bureaus and governmental authorities having
jurisdiction.
Section 2. Lessee agrees to procure and maintain a policy or policies
---------
of insurance, at its own costs and expense, insuring from all claims, demands or
actions for injury to or death of one or more persons in any one accident and
for damages to property in an aggregate amount of not less than $2,000,000.00
made by or on behalf of any person or persons, firm or corporation, arising
from, related to, or connected with the conduct and operation of Lessee's
business in the Leased Premises. Lessor shall be named an Additional Insured
Party in said policy. Such insurance shall be primary relative to any other
valid and collectible insurance. Said insurance shall not be subject to
cancellation except after at least thirty (30) days prior written notice to
Lessor, and the policy or policies, or duly executed certificate or certificates
for the same, together with satisfactory evidence of the payment of the premium
thereon, shall be deposited with Lessor at the commencement of the term and
renewals of such coverage. If Lessee fails to comply with such requirement,
Lessor may obtain such insurance and keep the same in effect, and Lessee shall
pay Lessor the premium cost thereof upon demand.
Section 3. All property which may be upon said Leased Premises during
---------
the term hereof or any renewal thereof shall be at and upon the sole risk and
responsibility of Lessee except Lessor shall maintain adequate casualty coverage
with respect to the building.
ARTICLE 12. DAMAGE BY FIRE OR OTHER CASUALTY.
Section 1. If the Leased Premises shall be destroyed or so injured by
---------
any cause as to be unfit, in whole or in part, for occupancy and such
destruction or injury could reasonably be repaired within three (3) months from
the happening of such destruction or injury, then Lessee shall not be entitled
to surrender possession of the Leased Premises nor shall Lessee's liability to
pay rent under this Lease cease without mutual consent of the parties hereto,
but in case of any such destruction or injury Lessor shall repair the same with
all reasonable speed and shall complete such repairs within three (3) months
from the happening of such injury, and if during such period Lessee shall be
unable to use all or any portion of the Leased Premises, a proportionate
allowance shall be made to Lessee from the rent corresponding to the time during
which and to the portion of the Leased Premises of which Lessee shall be so
deprived of the use on account thereof.
Section 2. If such destruction or injury cannot reasonably be
---------
repaired within three (3) months from the happening thereof, Lessor shall notify
Lessee within ten (10) days after the happening of such destruction or injury
whether or not Lessor will repair or rebuild. If Lessor elects not to repair or
rebuild, this Lease shall be terminated. If Lessor shall elect to repair or
rebuild, Lessor shall specify the time within which such repairs or
reconstruction will be complete, and Lessee shall have the option,
7
within ten (10) days after the receipt of such notice, to elect either to
terminate this Lease and further liability hereunder, or to extend the term of
the Lease by a period of time equivalent to the time from the happening of such
destruction or injury until the Leased Premises are restored to their former
condition. In the event Lessee elects to extend the term of the Lease, Lessor
shall restore the Leased Premises to their former condition within the specified
time in the notice, and Lessee shall not be liable to pay rent for the period
from the time of such destruction or injury until the Leased Premises are so
restored to their former condition.
ARTICLE 13. EMINENT DOMAIN.
Section 1. If the whole or substantially all of the Leased Premises
---------
hereby leased shall be taken by a public authority under the power of eminent
domain, then the term of this Lease shall cease as of the day possession shall
be taken by such public authority, and the rent shall be paid up to that date
with a proportionate refund by Lessor of such rent as shall have been paid in
advance.
Section 2. If less than substantially all of the floor area of the
---------
Leased Premises shall be so taken, the term of this Lease shall cease only on
the parts so taken as of the day possession shall be taken by such public
authority, and the rent shall be paid up to that day with a proportionate refund
by Lessor of such rent as may have been paid in advance, and thereafter the
minimum rent shall be equitably abated, and Lessor shall at its own cost and
expense make all necessary repairs or alterations as to constitute the remaining
Leased Premises a complete architectural unit.
Section 3. All damages awarded for such taking under the power of
---------
eminent domain, whether for the whole or a part of the Leased Premises, shall be
the property of Lessor whether such damages shall be awarded as compensation for
diminution in value of the leasehold or to the fee of the Leased Premises;
provided, however, that the Lessor shall not be entitled to any separate award
made to Lessee for loss of business, depreciation to and cost of removal of
stock and fixtures.
ARTICLE 14. ASSIGNMENT OR SUBLETTING.
Section 1. Lessee shall not assign or in any manner transfer this
---------
Lease or any interest therein, nor sublet said Leased Premises or any part or
parts thereof, nor permit occupancy by anyone with, through, or under it,
without the previous written consent of Lessor which consent shall not be
unreasonably withheld. It IS AGREED HOWEVER, THAT THE LESSOR HEREBY GIVES ITS
CONSENT THAT LESSEE MAY ASSIGN THIS LEASE TO THERMAL ARC AT ANYTIME DURING THE
LEASE TERM BUT ONLY IF PRESTOLITE IS NOT THEN IN DEFAULT THEREUNDER AND XXXXXX-
XXXXXXXXX (AND ITS LENDER) HAVE REASONABLY APPROVED THE CREDITWORTHINESS OF
THERMAL ARC (AND ITS PARENT, THERMADYNE HOLDINGS CORPORATION). Consent by
Lessor to one or more assignments of this Lease or to one or more sublettings of
the Leased Premises shall not operate as a waiver of Lessor's rights under this
Article to any subsequent assignment or subletting. No assignment shall release
Lessee of any of its obligations under this Lease or be construed or taken as a
waiver of any of Lessor's rights or remedies hereunder.
Section 2. Neither this Lease nor any interest therein, nor any
---------
estate thereby created, shall pass to any trustee or receiver in bankruptcy or
any assignee for the benefit of creditors or by operation of law.
Section 3. Provided that the Lessee with Lessor's consent assigns or
---------
sublets part or all of the Leased Premises at a rental that exceeds the current
rental herein reserved, the Lessor shall be entitled to receive as additional
rental one-half of such excess of the current rental. The Lessee shall remit
one-half of such excess within five (5) days after receipt by it.
8
ARTICLE 15. ACCESS TO LEASED PREMISES.
The Lessor shall retain duplicate keys to all of the doors of the
Leased Premises to be used by the Lessor, so long as the Lessee is not in
default, only in the case of emergencies. The Lessor or its agents shall have
the right to enter upon the Leased Premises at all reasonable hours for the
purpose of inspecting the same or of making repairs, additions or alterations
thereto or to the building in which the same are located with prior notice to
Lessee. The Lessor shall have the right, upon reasonable notice, to show the
Leased Premises to prospective Lessees, purchasers or others. Lessor shall not
be liable to Lessee in any manner for any expense, loss or damage by reason
thereof, nor shall the exercise of such right be deemed an eviction or
disturbance of Lessee's use or possession.
ARTICLE 16. ATTORNMENT.
In the event the Leased Premises are sold or transferred due to any
foreclosure sale or sales, judicial proceedings, or voluntary conveyance in lieu
of such foreclosure, or in the event the Premises are transferred by any
mortgagee in a sale, exchange or otherwise, this Lease shall continue in full
force and effect, and Lessee agrees, upon request, to attorn to and acknowledge
the foreclosure purchaser or purchasers at such sale, or other party succeeding
to the interest of Lessor, as Lessors hereunder. This Lease will, upon request
of any person owning or succeeding to the interest of Lessor, automatically
become a direct lease between said owner or successor and Lessee, without change
in the terms or the provisions of this Lease. Upon request by said owner or
successor in interest, Lessee shall execute and deliver an instrument or
instruments confirming such attornment.
If the successor Lessor requests such attornment, then so long as
Lessee shall faithfully discharge the obligations on its part to be kept and
performed under the terms of this Lease, Lessee's tenancy will not be disturbed
nor this Lease affected by any default under any mortgage. Lessee agrees that
this Lease shall remain in full force and effect even though default in the
mortgage may occur.
ARTICLE 17. LIMITATION UPON LIABILITY.
Notwithstanding any other provision of this Lease, Lessee agrees to
look solely to Lessor's interest in the Building (subject to any mortgage on the
Building) for the recovery of any judgment requiring the payment of money by
Lessor; it being agreed that Lessor, and if Lessor is a partnership, its
partners whether general or limited, or if Lessor is a corporation, its
directors, officers, or shareholders, shall never be personally liable for any
such judgment, and no other assets of the Lessor shall be subject to levy,
execution or other procedures for the satisfaction of Lessee's judgment. The
provision contained in the foregoing sentence is not intended to, and shall not,
limit any right that Lessee might otherwise have to obtain injunctive relief
against Lessor or Lessor's successors in interest, or to maintain any other
action not involving the personal liability of Lessor, or to maintain any suit
or action in connection with enforcement or collection of amounts which may
become owing or payable under or on account of insurance maintained by Lessor.
ARTICLE 18. LESSOR'S SUCCESSORS.
The term "Lessor" as used in this Lease shall be limited to mean and
include only the owner or owners, at the time, of the fee of the Building, their
successors and assigns, so that in the event of any sale or sales of the
Building, the previous Lessor shall be entirely released with respect to the
performance of all subsequently accruing covenants and obligations on the part
of Lessor. The retention of fee ownership by a lessor of the Building or of the
land on which it is located under an underlying lease which is now or hereafter
in effect, shall not be deemed to impose on such underlying
9
lessor any liability, initial or continuing, for the performance of the
covenants and obligations of Lessor.
ARTICLE 19. LESSEE'S DEFAULT.
Section 1. The Lessee, ten (10) days after receipt of written notice,
---------
shall be considered in default of this Lease upon failure to pay when due the
rent or any other sum required by the terms of the Lease. The Lessee, thirty
(30) days after receipt of written notice, shall be considered in default of
this Lease upon failure to perform any term, covenant or condition of this
Lease; the commencement of any action or proceeding for the dissolution,
liquidation or reorganization under the Bankruptcy Act, of Lessee, or for the
appointment of a receiver or trustee of the Lessee's property; the making of any
assignment for the benefit of creditors by Lessee; the suspension of business;
or the abandonment of the Leased Premises by the Lessee.
Section 2. In the event of default of this Lease by Lessee, then
---------
Lessor, besides other rights or remedies it may have, shall have the immediate
right of reentry with or without prior notice, and may remove all persons and
property from the Leased Premises; such property may be removed and stored in
any other place in the building in which the Leased Premises are situated, or in
any other place, for the account of, and at the expense and at the risk of
Lessee. Lessee hereby waives all claims for damages which may be caused by the
reentry of Lessor. Should Lessor elect to reenter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease, or it may
without terminating this Lease relet said Leased Premises or any part thereof
for such term or terms and at such rental or rentals and upon such other terms
and conditions as Lessor may deem advisable, with the right to make alterations
and repairs to said Leased Premises for the purpose of rerental. Should such
rentals received from such reletting during any month be less than required to
be paid by Lessee as defined above, then Lessee shall immediately pay such
deficiency to Lessor.
Section 3. No such reentry or taking possession of said Leased
---------
Premises by Lessor shall be construed as an election on its part to terminate
this Lease, unless a written notice of such intention be given to Lessee or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach or act of
default. Should Lessor at any time terminate this Lease for any breach or act of
default, in addition to any other remedy it may have, it may recover from Lessee
all damages it may incur by reason of such breach or act of default, including
the cost of recovering the Leased Premises, legal fees, and including the worth
at the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Leased Premises for the
remainder of the stated term.
ARTICLE 20. SURRENDER OF LEASED PREMISES.
Section 1. If Lessee holds possession of the Leased Premises after
---------
the termination of this Lease for any reason, Lessee shall pay Lessor 150% the
last monthly rent provided for herein for each month or a portion of a month
that Lessee holds over, together with all other charges due hereunder. Such
payment of rent shall not create any Lease arrangement whatsoever between Lessor
and Lessee, unless expressly agreed to in writing by Lessor. It is further
understood that during such period that Lessee holds over, the Lessor retains
all of Lessor's rights under this Lease, including damages as a result of the
termination of this Lease and the right to immediate possession of the Leased
Premises. This paragraph shall not be construed to grant Lessee permission to
hold over.
10
Section 2. At the expiration of the tenancy created hereunder,
---------
whether by lapse of time or otherwise, Lessee shall surrender the Leased
Premises broom clean, free of tire marks, free of all debris and in good
condition and repair, reasonable wear and loss by fire or other unavoidable
casualty excepted.
Section 3. Prior to surrender of the Leased Premises, the Leased
---------
Premises will be reviewed by a representative of the Lessor and Lessee to
determine if there is any deferred maintenance or unrepaired damage which the
Lessee was responsible to perform. In the event that there is such deferred
maintenance and/or unrepaired damage, Lessor may effect such maintenance and
repairs, and Lessee will pay the cost thereof.
Section 4. Upon the expiration of the tenancy hereby created, if
---------
Lessor so requests in writing, Lessee shall promptly remove any additions,
fixtures and installations placed in the Leased Premises by Lessee that is
designated in said request, and repair any damage occasioned by such removals at
its own expense, and in default thereof, Lessor may effect such removals and
repairs, and Lessee shall pay Lessor the cost thereof, with interest at the rate
of eight (a) percent per annum from the date of payment by Lessor
ARTICLE 21. SUBORDINATION.
This Lease shall be subject to and subordinate at all times to the
lien of any mortgages, now or hereafter made on the Leased Premises, and to all
advances made or hereafter to be made thereunder. The Lessee agrees to execute
a subordination agreement should Lessor's lender request same so long as the
lender provided the Lessee standard nondisturbance language reasonably
acceptable to the Lessee.
ARTICLE 22. NOTICE.
All notices under this Lease may be personally delivered; sent by
courier service, with receipt; or mailed to the address shown by certified mail,
return receipt requested. The effective date of any mailed notice shall be one
(1) day after delivery of the same to the United States Postal Service.
Lessor: Xxxxxx-Xxxxxxxxx Partners Ltd.
Mail: X.X. Xxx 000
Xxxxxx, Xxxx 00000-0000
Courier: 0000 Xxxxxx-Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxx 00000
Lessee: Prestolite Power Corporation
Mail: Attn: I. Xxxxxx Xxxxxx
0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Either party may from time to time designate in writing other addresses.
ARTICLE 23. WAIVER OF SUBROGATION.
The Lessor and Lessee waive all rights, each against the other, for
damages caused by fire or other perils covered by insurance where such damages
are sustained in connection with the occupancy of the Leased Premises.
ARTICLE 24. ESTOPPEL CERTIFICATE.
The Lessee agrees to execute an Estoppel Certificate within ten (10)
days of receipt of a written request by Lessor for the benefit of any purchaser
and/or prospective Lender designated by Lessor as well as Lessor's present
Lender; that wherein the Lessee acknowledges the terms and conditions of this
Lease. The Lessor
11
agrees to similarly execute such estoppel certificates and acknowledgments as
Lessee's lender may from time to time request.
ARTICLE 25. RENT DEMAND.
Every demand for rent due wherever and whenever made shall have the
same effect as if made at the time it falls due and at the place of payment, and
after the service of any notice or commencement of any suit, or final judgment
therein, Lessor may receive and collect any rent due, and such collection or
receipt shall not operate as a waiver of nor affect such notice, suit or
judgment.
ARTICLE 26. NO REPRESENTATION BY LESSOR.
Lessor and its agent have made no representations or promises with
respect to the Leased Premises or the building of which the same form a part
except as herein expressly set forth.
ARTICLE 27. WAIVER OF BREACH.
No waiver of any breach of the covenants, provisions or conditions
contained in this Lease shall be construed as a waiver of the covenant itself or
any subsequent breach itself, and if any breach shall occur and afterwards be
compromised, settled or adjusted, this Lease shall continue in full force and
effect as if no breach had occurred, unless otherwise agreed. The acceptance of
rent hereunder shall neither be or construed to be a waiver of any breach of any
term, covenant or condition of this Lease.
ARTICLE 28. QUIET ENJOYMENT.
Lessor hereby covenants and agrees that if Lessee shall perform all
the covenants and agreements herein stipulated to be performed on Lessee's part,
Lessee shall at all times during the continuance hereof have the peaceable and
quiet enjoyment and possession of the Leased Premises without any manner of let
or hindrance from Lessor or any person or persons lawfully claiming the Leased
Premises except as otherwise provided for herein.
ARTICLE 29. ENVIRONMENTAL PROVISIONS.
Section 1. The Lessor, to the best of its knowledge, represents to
---------
the Lessee that no toxic, explosive or other dangerous materials or hazardous
substances have been concealed within, buried beneath, released on or from, or
removed from and stored off-site of the Property upon which the Leased Premises
is constructed.
Section 2. Lessee shall at all times during the term of this Lease
---------
comply with all applicable federal, state, and local laws, regulations,
administrative rulings, orders, ordinances, and the like, pertaining to the
protection of the environment, including but not limited to, those regulating
the handling and disposal of waste materials. Further, during the term of this
Lease, neither Lessee nor any agent or party acting at the direction or with the
consent of Lessee shall treat, store, or dispose of any "hazardous substance,"
as defined in Section 101 (14) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), or petroleum (including crude
oil or any fraction thereof) on or from the Property.
Section 3. Lessee shall fully and promptly pay, perform, discharge,
---------
defend, indemnify and hold harmless Lessor from any and all claims, orders,
demands, causes of action, proceedings, judgments, or suits and all liabilities,
losses, costs or expenses (including, without limitation, technical consultant
fees, court costs, expenses paid to third parties and reasonable legal fees) and
damages arising out of, or as a result of, (I) any "release" as defined in
Section 101 (22) of CERCLA, of any "hazardous substance," as defined in Section
101 (14) of CERCLA, or petroleum, (including crude oil or any fraction
12
thereof) or placed into, on or from the Property at any time after the date of
this Lease by Lessee, its agents, or employees; (ii) any contamination of the
Property's soil or groundwater or damage to the environment and natural
resources of the Property the result of actions occurring after the date of this
Lease, whether arising under CERCLA or other statutes and regulations, or common
law by Lessee, its agents, or employees; and (iii) any toxic, explosive or
otherwise dangerous materials or hazardous substances which have been buried
beneath, concealed within or released on or from the Property after the date of
this Lease by Lessee, its agents, or employees.
ARTICLE 30. INTERPRETATION.
Section 1. Wherever either the word "Lessor" or "Lessee" is used in
---------
the Lease, it shall be considered as meaning the singular and/or neuter pronouns
as used herein, and the same shall be construed as including all persons and
corporations designated respectively as Lessor or Lessee in the heading of this
instrument wherever the context requires.
Section 2. If any clause, sentence, paragraph, or part of this Lease
---------
shall for any reason be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not effect, impair, or invalidate the remainder of
this Lease, but be confined in its operation to the clause, sentence, paragraph,
or part thereof directly involved in the controversy in which such judgment
shall have been rendered, and in all other respects said Lease shall continue in
full force and effect.
ARTICLE 31. FINANCIAL STATEMENTS.
At Lessor's request, the Lessee, within thirty (30) days of Lessor's
request, shall furnish the Lessor with Lessee's most current annual financial
statements including the Lessee's balance sheet, a consolidated statement of
earnings and retained earnings, and changes in Lessee's financial position for
such year. All such statements shall be certified by an independent certified
public accountant. All such financial statements shall be prepared in
accordance with generally accepted accounting principles which shall be
consistently applied.
ARTICLE 32. AMERICANS WITH DISABILITIES ACT COMPLIANCE.
Lessor shall construct the building and the Leased Premises in
compliance with Americans with Disabilities Act of 1990 as amended ("ADA").
Notwithstanding anything set forth herein to the contrary, Lessor shall be
solely responsible and liable for making any modifications to the exterior of
the Building (including the exterior doors and entrances leading to the Leased
Premises) that may be required to comply with future amendments to the ADA.
Lessee, at its sole cost and expense, shall remove any barriers or provide such
accommodations as may be necessary for the interior of the Leased Premises to
comply with future amendments to the ADA. Any structural alterations or
renovations that the Lessee may make to the Premises, as permitted under this
Lease, shall comply with the accessibility standards and regulations of the ADA.
If the Lessee fails to fulfill its obligations under this Article, the Lessor
may elect to provide the modifications and renovations required pursuant to the
ADA and seek reimbursement from the Lessee. Should the Lessor incur any such
expenses for the obligations of Lessee, the amount of such expenses may, at the
Lessor's option, be added to the rent due from the Lessee under the terms of
this Lease. Lessor and Lessee hereby mutually indemnify and hold each other
harmless against any and all liability, losses, fines or other penalties that
may be incurred or assessed against the other, including reasonable attorney
fees, due to the failure of the other to adhere to their respective obligations
under this Article of the Lease.
13
ARTICLE 33. MEMORANDUM OF LEASE.
It is agreed by both parties that this instrument is not recordable
and if either party should record the same in the Office of the Recorder of
Miami County, Ohio, the recording shall have no effect. When possession of the
Leased Premises has been delivered to Lessee, the parties hereto may execute,
acknowledge and deliver a Memorandum of Lease in recordable form specifying the
terms of this Lease and renewal periods of this Lease. In the event they differ
from the dates herein, the date in the Memorandum shall control.
ARTICLE 34. TIME.
Time is of the essence in this Lease.
ARTICLE 35. RIGHT TO TERMINATE.
Upon the full execution by and between the Lessee and Lessor of a new
lease for 40,000 square feet or more, for a term of five (5) years or more, in
one of Xxxxxx-Xxxxxxxxx'x existing buildings, or a new building constructed by
Xxxxxx-Xxxxxxxxx, Lessor grants to the Lessee the right to terminate this Lease
and shall incur no penalty for exercising this right.
ARTICLE 36. ENTIRE AGENT.
This Lease contains the entire agreement between the parties; it
supersedes all previous understandings and agreements between the parties, if
any, and no oral or implied representation or understandings shall vary its
terms; and it may not be amended except by a written instrument executed by both
parties hereto.
IN WITNESS WHEREOF, the parties hereto set their hands to triplicates
hereof, this 11th day of November 1997, as to Lessor, and this 7th day of
November, 1997, as to Lessee.
14
Signed and acknowledged LESSOR: XXXXXX-XXXXXXXXX PARTNERS LTD.
Signed and acknowledged in LESSOR: XXXXXX-XXXXXXXXX PARTNERS, LTD.
the presence of: an Ohio general partnership
/s/ Xxxxxx X. Xxxxxx BY: /s/ Xxxxx X. Xxxxxx
---------------------------- -------------------------------
ITS: Xxxxx X. Xxxxxx
General Partner
/s/ Xxxxxxxx Xxxxxxxx
----------------------------
LESSEE: PRESTOLITE POWER CORPORATION
/s/ [ILLEGIBLE] BY: I.Xxxxxx Xxxxxx
---------------------------- -------------------------------
ITS: I. Xxxxxx Xxxxxx
President
/s/ [ILLEGIBLE]
----------------------------
STATE OF OHIO, COUNTY OF XXXXXXXXXX, XX:
The foregoing instrument was acknowledged before me this 11th day of November,
1997, by Xxxxx X. Xxxxxx, General Partner on behalf of XXXXXX-XXXXXXXXX
PARTNERS, LTD.
/s/ Xxxxxx X. Xxxxxxx
---------------------
Notary Public
STATE OF Ohio, COUNTY OF Miami, SS:
---- -----
The foregoing instrument was acknowledged before me this 7th day of November,
1997, by I. Xxxxxx Xxxxxx the President of PRESTOLITE POWER CORPORATION, a
corporation, on behalf of said corporation.
/s/ Xxxxxx Xxxxxxx
------------------
Notary Public
15
GUARANTEE
---------
In consideration of the leasing of the Premises at Xxxxxxxxx Xxx,
Xxxx, Xxxx 00000 under a Lease dated November 7, 1997, by XXXXXX-XXXXXXXXX
PARTNERS LTD. (Lessor) to PRESTOLITE POWER CORPORATION (Lessee) the undersigned
Guarantor does hereby unconditionally and continuingly guarantee Lessee's
performance under said Lease, and agree that if Lessee shall become in default
in the payment of rent or the performance of any other term or condition under
said Lease, then upon notice in writing of such fact, they will within ten (10)
days of receipt of such notice cure any existing default and continue to perform
or cause to be performed all obligations of the Lessee under such Lease. In the
event the Guarantor shall so direct, Lessor will thereafter recognize the
Guarantor as Lessee under the Lease. The Guarantor further consents
prospectively to any amendment of such Lease or any election shall not affect
their obligation under this Guarantee. In the event of default, Lessor may look
to the Guarantor for performance of all obligations of Lessee and for recovery
of any loss or damage resulting from such default without the necessity or prior
exhaustion of remedies against Lessee.
Guarantor acknowledge that Lessor entering into this Lease with Lessee
is adequate consideration to Guarantor to give this Guarantee.
IN WITNESS WHEREOF, the Guarantor have/has executed this Guarantee as
of the 7th day of November, 1997.
Witnessed By: By: PRESTOLITE ELECTRIC INCORPORATED
/s/ [ILLEGIBLE] /s/ I.C. Schwab
----------------------- ---------------
/s/ [ILLEGIBLE] Its: Vice President
------------------------ --------------
STATE OF OHIO, COUNTY OF Miami, SS:
The foregoing instrument was acknowledged before me this 7th day of November,
1997, by I. Xxxxxx Xxxxxx, the Vice President of PRESTOLITE ELECTRIC
INCORPORATED.
/s/ Xxxxxx Xxxxxxx
------------------
Notary Public
16
WAREHOUSE/DISTRIBUTION
----------------------
AGREEMENT OF LEASE
------------------
TABLE OF CONTENTS
-----------------
LEASE FOR PRESTOLITE POWER CORPORATION
----------------------------
PROPERTY LOCATED AT 0000-0000 XXXXXXXXX XXXXX, XXXX, XXXX 00000
-------------------------------------------
ARTICLE PAGE
------- ----
ARTICLE 1. TERM...................................... 4
ARTICLE 2. LEASED PREMISES........................... 4
ARTICLE 3. POSSESSION. INTENTIONALLY OMITTED........ 4
ARTICLE 4. RENT...................................... 4
ARTICLE 5. SECURITY DEPOSIT. INTENTIONALLY OMITTED.. 5
ARTICLE 6. COMMON AREA............................... 5
ARTICLE 7. USE OF LEASED PREMISES.................... 5
ARTICLE 8. REPAIRS................................... 5
ARTICLE 9. INSTALLATIONS AND ALTERATIONS............. 6
ARTICLE 10. INDEMNIFICATION........................... 6
ARTICLE 11. INSURANCE................................. 7
ARTICLE 12. DAMAGE BY FIRE OR OTHER CASUALTY.......... 7
ARTICLE 13. EMINENT DOMAIN............................ 8
ARTICLE 14. ASSIGNMENT OR SUBLETTING.................. 8
ARTICLE 15. ACCESS TO LEASED PREMISES................. 9
ARTICLE 16. ATTORNMENT................................ 9
ARTICLE 17. LIMITATION UPON LIABILITY................. 9
ARTICLE 18. LESSOR'S SUCCESSORS....................... 9
ARTICLE 19. LESSEE'S DEFAULT.......................... 10
ARTICLE 20. SURRENDER OF LEASED PREMISES.............. 10
ARTICLE 21. SUBORDINATION............................. 11
ARTICLE 22. NOTICE.................................... 11
ARTICLE 23. WAIVER OF SUBROGATION..................... 11
ARTICLE 24. ESTOPPEL CERTIFICATE...................... 11
ARTICLE 25. RENT DEMAND............................... 12
ARTICLE 26. NO REPRESENTATION BY LESSOR............... 12
ARTICLE 27. WAIVER OF BREACH.......................... 12
ARTICLE 28. QUIET ENJOYMENT........................... 12
ARTICLE 29. ENVIRONMENTAL PROVISIONS.................. 12
ARTICLE 30. INTERPRETATION............................ 13
ARTICLE 31. FINANCIAL STATEMENTS...................... 13
ARTICLE 32. AMERICANS WITH DISABILITIES ACT COMPLIANCE 13
ARTICLE 33. MEMORANDUM OF LEASE....................... 14
ARTICLE 34. TIME...................................... 14
ARTICLE 35. RIGHT TO TERMINATE........................ 14
ARTICLE 36. ENTIRE AGENT.............................. 14
17
