Exhibit 10.49
▇▇▇▇ WHOLESALERS, CINCINNATI
This agreement of Lease made this 1ST DAY OF SEPTEMBER by and between ▇▇▇▇
WHOLESALERS, INC. (Hereinafter collectively called "Lessors") and ▇▇▇▇
WHOLESALERS, CINCINNATI (Hereinafter called "Lessee").
WITNESSETH:
1. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to
lease from Lessor the real estate described in Exhibit A attached hereto
together with all improvements located thereon.
2. The term of Lease shall be ten (10) years commencing with the 1ST DAY OF
SEPTEMBER, 1992 and ending with the 31ST DAY OF AUGUST, 2002.
3. Lessee shall pay to lessor as rent for the lease premises the sum of TWO
HUNDRED SIXTY THOUSAND - FOUR HUNDRED DOLLARS ($260,400) a year, payable in
advance on the first day of every month during the term hereof in installments
of TWENTY-ONE THOUSAND DOLLARS SEVEN HUNDRED DOLLARS ($21,700).
4. In addition to said rental as provided above:
a. The lessee covenants and agrees to pay promptly when due, all taxes
and assessments of every kind and nature levied, assessed or payable upon the
real estate and improvements thereon, which are the subject of this Lease,
together with all business taxes, assessments, levies, license fees, water
rents, sewer rents, excises, franchises, penalty and charges, of whatever nature
of kind which are now or may hereafter be levied, assessed, charged or imposed
or become payable during the term of this Lease by any government of political
body, corporation or unit, or which may become alien upon the property, or upon
the leasehold interest, or which are, or may hereafter be levied, assessed or
charged by reason of the use or occupancy of the premises under this lease.
b. Lessee covenants and agrees that during the term of this Lease it
will, at Lessee's own cost and expense, carry "all risk" insurance on the
demised premises in an amount not less than the full replacement value of all
structures erected on said premises, insuring said structures against loss,
destruction or damage by fire or other casualty. The proceeds of such insurance
shall be payable to Lessors. In addition, Lessee shall carry public liability
insurance indemnifying Lessors in an amount satisfactory to Lessors.
c. Lessee covenants that it will, during the term of this Lease, at its
own expense, keep and maintain the demised premises and all structures erected
thereon and all appurtenances thereto in good and substantial repair, both
exterior and interior and including any parking area or driveways, and that it
will indemnify and save harmless the Lessor from and against all liens, claims
or damages by reason of any repairs or improvements which may be made by the
Lessee on said premises, and Lessee further covenants to surrender the premises
at the end of the term in as good condition as they are at the date of the
commencement of the term or may be put thereafter, ordinary wear and tear
excepted.
5. It is the intention and purpose of the parties thereto to create by
this instrument a Lease of the kind commonly known as "Carefree" to the Lessor.
Accordingly, the Lessee agrees to bear, pay for and discharge not only such
items as it has specifically agreed by the prior provisions of this Lease to
bear, pay and discharge, but also all other costs, charges and expenses of every
kind and nature whatsoever which must be borne, paid and discharged in order to
accomplish the purpose and objects of this Lease, namely:
a. That the Lessor shall receive from the Lessee, without diminution on
account of any matter or thing whatsoever except such as shall arise from breach
by the Lessor of any covenant or covenants of the Lessor contained herein, the
rentals agreed to be paid by the Lessee;
b. That the Lessor shall be subjected to no expense whatsoever on
account of any matter or thing connected with or arising from the leased
premises or this Lease during the term hereof, except matters connected with or
arising from the covenants of the Lessor contained herein; and
c. That the Lessor at the expiration of or sooner termination of this
Lease, shall receive possession of the leased premises and the improvements
thereon in accordance with the covenants of the Lessee contained herein and free
and clear of all claims, liens, charges and encumbrances expect those to which
the lease premises are now subject, or which may be placed thereon by the
Lessor, or which shall arise because of breach by the Lessor of any covenant or
covenants of the Lessor contained herein.
6. The terms and provisions of this Lease shall inure to and be binding
upon the respective successors and assigns of the Lessee and the Lessor. This
Lease contains the entire agreement of the parties, and no representations,
inducements, promises or agreements, oral or otherwise not embodied herein shall
be of any force or effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands on the day
and year aforesaid.
SIGNED AND ACKNOWLEDGED LESSOR:
IN THE PRESENCE OF:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., President
▇▇▇▇ WHOLESALERS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇ WHOLESALERS, INC.
LESSEE:
▇▇▇▇ WHOLESALERS, CINCINNATI
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. President
▇▇▇▇ WHOLESALERS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇ WHOLESALERS, INC.
STATE OF OHIO )
) SS
COUNTY OF ▇▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 1ST DAY OF SEPTEMBER, 1992 before me, the
subscriber, a Notary Public in and for said County and State, personally came
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Lessors in the foregoing Lease, and
acknowledge the signing of said instrument to be their voluntary act and deed
for the uses and purposes herein mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my notarial seal
on the day and year last above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
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NOTARY PUBLIC
STATE OF OHIO )
) SS
COUNTY OF ▇▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 1ST DAY OF SEPTEMBER, 1992, before me, the
subscriber, a Notary Public in and for said County and State, personally came
the above named Lessee, ▇▇▇▇ WHOLESALERS, LYNCHBURG by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
its President and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ its Vice President who acknowledged the
signing of the foregoing Lease to be the voluntary act and deed of said
corporation as such Lessee, and of themselves as the duly authorized officers
thereof, for the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have here unto set my hand and affixed my
notarial seal on the day and year last above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
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NOTARY PUBLIC
ASSIGNMENT AND ASSUMPTION AND MODIFICATION OF LEASE AGREEMENT
This Assignment and Assumption of Lease Agreement (the "Agreement") made
this 19th day of February, 1999 by and among ▇▇▇▇ Wholesalers, Inc. (the
"Lessor") (which may be known in the future as MAE Holding Company), ▇▇▇▇
Wholesalers of Cincinnati, Inc. a/k/a ▇▇▇▇ Wholesalers, Cincinnati (the
"Assignor") and ▇▇▇▇▇▇ Products Ltd. (the "Assignee") (which may in the future
do business under the name of ▇▇▇▇ Wholesalers, Inc.).
WHEREAS, Assignor is the Lessee under that certain lease dated September
1, 1992 (the "Lease") by and between the Lessor and Assignor for premises
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ and as more particularly
described in the Lease;
WHEREAS, the Lessor and Assignee have entered into that certain asset
purchase agreement (the "Purchase Agreement") dated as of December 22, 1998; and
WHEREAS, pursuant to the Purchase Agreement and this Agreement, Assignee
is assuming Assignor's interest as Lessee in the Lease; and
WHEREAS, Lessor, Assignor and Assignee desire to modify certain terms of
the Lease; and
WHEREAS, Assignor desires to assign its interest under the Lease to
Assignee, and Assignee desires to accept such assignment on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereby amend and modify the terms of the
Lease as follows below; and
NOW, THEREFORE, in consideration of their mutual covenants hereafter set
forth and other good and valuable consideration paid by Assignee to Assignor,
the receipt of which is hereby acknowledged by Assignor, Assignor assigns,
grants, transfers and sets over all of its right, title, claim and interest in
and under the Lease to Assignee and its successors and assigns.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
from the date hereof, subject to the terms and conditions contained in the
Lease.
1. Assignor hereby assigns all of its right, title and interest in the Lease
to Assignee, and Assignee hereby assumes the performance and observance of all
the terms, covenants and conditions of the Lease to be performed or observed by
Assignor from and after the date hereof.
2. Paragraph 4 b. is deleted in its entirety and the following substituted
therefor:
"Lessee covenants and agrees that during the term of this Lease
it will, at Lessee's own cost and expense, carry extended coverage "all risk"
insurance on the demised premises in an amount not less than the full
replacement value of all structures erected on said premises, insuring said
structures against loss, destruction or damage by fire or other casualty. Lessee
shall also carry comprehensive general liability insurance for bodily or
personal injury to, illness of, or death of persons and damage to property
occurring in on, or about the demised premises with limits which are
commercially reasonable. All of Lessee's insurance policies shall name Lessor as
an additional insured. If demised premises shall be damaged or destroyed by fire
or other casualty, then Lessee, at its sole cost and expense shall repair and
restore the same to such condition as approximately existed immediately prior to
such loss, damage or destruction. Lessee's repair and restoration shall be
subject to then applicable legal requirements.
If an event of casualty occurs within two (2) years of the expiration of the
term of this Lease, the Lessee may elect not to repair and restore the demised
premises and to cancel and terminate the Lease. Such election shall be made
within thirty (30) days from the date of casualty. In the event Lessee elects to
terminate the Lease, Lessee shall assign its insurance proceeds to the Lessor
provided that the insurance proceeds are sufficient to repair and restore the
demised premises.
3. Paragraph 4 c. of the Lease is hereby amended by adding the following
thereto:
"Lessor shall make necessary repairs and replacements to the roof
and to the structural portions of the foundation and exterior walls of the
demised, provided that the repairs are not made necessary by the act or omission
of Lessee, its employees, agents or invitees, nor by reason of Lessee's making
repairs, alterations and improvements to the Building. In addition, Lessor's
obligation shall be limited to all such costs in excess of $10,000.00 during any
calendar year. For example, if the roof is in need of repair or replacement and
the costs therefor is $30,000.00, Lessee shall be responsible for $10,000.00 of
the cost, and Lessor shall be responsible for $20,000.00 of the cost. After the
completion of any such repair, Lessee shall pay its share of such costs within
ten (10) days after receipt of invoice from Lessor."
4. Lessor, Assignor and Assignee further agree to the addition of the
following provisions to the Lease:
7. That at any time and from time to time, Lessee's interest
under this Lease may be assigned and re-assigned upon notice to the Lessor but
without requiring the Lessor's consent thereto provided that the Assignee
remains liable under the Lease.
8. In addition to any other covenants or obligations of Lessor
under this Lease, Lessor covenants and agrees as follows: That Assignee, upon
payment of the rent above reserved, and upon the due performance of the
covenants and agreements herein contained, shall and may at all times peaceably
and quietly have, hold and enjoy the demised premises for the remaining Term of
this Lease without any manner or hindrance or molestation from Lessor or anyone
claiming under Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day, month and year first above written.
ASSIGNOR:
▇▇▇▇ WHOLESALERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
ASSIGNEE:
▇▇▇▇▇▇ PRODUCTS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President & CEO
CONSENTED TO:
▇▇▇▇▇▇
▇▇▇▇ WHOLESALERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President