Exhibit Section
Exhibit (10.1)
THIS AGREEMENT OF LEASE is made as of the 21st day of August, 1996,
between XXXXXX X. XXXXXX and XXXXXX X. XXXXXX, XX., hereinafter jointly called
"Lessor," and CM ACQUISITION CORP., an Ohio corporation, hereinafter called
"Lessee."
1. Demise of Premises. Lessor hereby demises and leases to Lessee and
Lessee hereby accepts and leases from Lessor, for the term and upon the terms
and condition hereinafter net forth, the real property described in Exhibit A
attached hereto and incorporated herein by reference (hereinafter called
"Premises" or "Demised Premises"), together with all improvements now existing
thereon.
2. Term and Renewal. The term of this lease shall be sixty (60) months
commencing on September 1, 1996, and ending at 11:59 p.m. on August 31, 2001,
both dates inclusive, unless sooner terminated as hereinafter provided or unless
renewed as hereinafter provided. Provided that Lessee shall have complied with
all the terms and conditions of this lease, Lessee shall have the option to
renew this lease for two (2) successive additional periods of sixty (60) months
each after the expiration of the original term or the first renewal term, as
applicable, on the same terms and conditions, except for increased rent as
provided in Section 3, as herein provided for the initial term. Such option to
renew shall be exercised by Lessee giving written notice to Lessor of its
exercise of an option at least six (6) months before the end of the original or
renewal term.
3. Rent. Lessee shall pay to Lessor, as rental for the occupation and
use of the Premises for and during the original term hereof, a total rental of
$486,000.00 payable monthly in advance in equal installments of $8,100.00 each,
the first of such installments being payable on the lst day of September, 1996,
and the remaining installments being due and payable on the lst day of each
calendar month thereafter during the original term hereof. Lessee shall pay to
Lessor, as rental for the occupation and use of the Premises for and during the
first renewal term, if this lease in renewed, a total rental of $510,300.00
payable monthly in advance in equal installments of $8,505.00 each, and for and
during the second renewal term, if this lease is renewed for such term, a total
rental of $535,815.00 payable monthly in advance in equal installments of
$8,930.25 each. All rental shall be payable to Lessor at 0000 Xxxxxxx Xxx Xxxx,
Xxxxxxxxxx, Xxxx 00000, or at such other place as Lessor may direct in writing.
4. Net Rent. It is the intention of the Lessor and the Lessee that the
rent herein specified shall be net to the Lessor in each month during the term
of this lease; that all costs, expenses, and obligations of every kind relating
to the Demised Premise, except as may be specifically otherwise provided in this
Lease, which may arise or become due during the term of this lease shall be paid
by the Lessee; and that the Lessor shall be indemnified by the Lessee against
such costs, expenses and obligation. Without limiting the generality of the
foregoing provision, the parties agree that:
a. Lessee shall promptly pay all taxes and assessments against or
allocated to the Premises as and when they become due for tax periods after the
signing of this Lease. Lessee will pay all taxes and assessment levied against
the equipment, buildings, or other property which is now located on or which
Lessee may erect, install or have located on the Premises. Taxes for the current
year shall be prorated between Lessor and Lessee as of the date of commencement
of this Lease.
b. In the event the Premises are assessed as a separate tax parcel and
Lessee fails to pay the entire real estate tax xxxx when due, Lessor may, but
shall not be obligated to, pay the tax xxxx and the amount so paid together with
interest at the rate of eighteen (181) percent per annum from the date of
payment shall be deemed additional rent due hereunder and shall be paid by
Lessee not later than the date the next installment of rent shall become due
hereunder.
c. Lessee, at its own cost and expense, covenants and agrees to keep
the Premise, including any improvements and betterments now existing or which
may be made to the Premises, fully insured during the term of this lease against
loss or damage by fire and other casualty; such insurance to be written by an
insurance company or companies authorized to do business in the State of Ohio
for the full insurable replacement value of the Premises, including
improvements. Lessee covenants and agrees that Lessor and Lessee shall be named
as insured parties on such policies as their interest may appear, and that
Lessee shall procure endorsements on the policies required to be maintained by
it under the provisions of this paragraph wherein and whereby the insurance
company will agree that the Lessor will be given thirty (30) days' advance
written notice of any cancellation or reduction of insurance under any such
policy and that copies of all endorsements issued after the date of such policy
will be forwarded to Lesssor.
In the event that Lessee fails to pay for such fire and other casualty
insurance when the premiums are due, Lessor may, but shall not be obligated to,
pay the premium necessary to prevent the lapse of existing policies or obtain
and pay the premium for replacement policies, and the amount so paid together
with interest at the rate of eighteen percent (18%) per
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Exhibit (10.1)
annum from the date of payment shall be deemed additional rent due hereunder and
shall be paid by Lessee not later than the date the next installment of rent
shall become due hereunder.
5. Lien for Rent. Lessee covenants and agrees that Lessor shall have
and is hereby given a lien upon the leasehold estate herein created and upon all
of the property of Lessee of every kind and character which shall come upon the
Demised Premises at any time during the term of this lease or any extension
hereof to secure the payment of all of the rent and other sums whatsoever which
are or shall become due Lessor under the terms of this lease and such lien shall
be paramount to any other liens placed or suffered thereon by Lessee. For the
purpose of enforcing such lien, Lessor shall have and is hereby given the right
to distrain for all of such rent and other sums in the manner and form as
provided by the lawn of the State of Ohio. The lien and right given Lessor in
this paragraph shall be cumulative and in addition to all other rights and
remedies which it now has or may hereafter have under this lease and the laws of
the State of Ohio.
6. Construction and Alterations by Lessee. Lessee may after having
first obtained the written consent of Lessor, which consent shall not be
unreasonably withheld or delayed and at Lessee's full cont and expense alter or
construct improvements upon the Demised Premises, or make alterations or site
improvements such as utility extensions, final grading, paving, curbs,
sidewalks, landscaping, etc., to the Demised Premises, such as may be necessary
or incidental to the purposes and uses for which the Premises are leased. All
such improvements shall become a part of the Demised Premises and shall be the
sole property of Lessor upon the termination of this Lease. Such alterations
shall not impair the roof, exterior brick and block walls, supporting walls or
foundations.
a. Mechanic's and Material Liens. The Lessor shall not be liable for
any labor or materials furnished to the Lessee and the mechanic's or other lien
for such labor and materials shall not attach to or affect the Lessor's interest
Demised Premises. The Lessee hereby agrees to pay any mechanic's or other lien,
or to discharge any such lien by bond or deposit or provide an escrow deposit
sufficient for that purpose upon request of the Lessor, and failing to do so,
the Lessor may, without having an obligation to do so, upon giving fifteen (15)
days written notice to the Lessee, pay or discharge the same and the amount so
paid or deposited together with interest at the rate of eighteen (18%) percent
per annum shall be deemed additional rent due hereunder and payable when the
next installment of rent shall become due.
b. The Lessee shall be responsible for obtaining all required licenses,
approvals or permits for any of the construction, alteration or installation
allowed by this lease. Lessee shall be solely responsible for all work in
connection with the alterations and construction and shall be solely responsible
for assuring that all work is completed in a good and workmanlike manner and in
conformity with all federal, state and local laws and regulations, including,
without limitation, the Americans With Disabilities Act, and shall indemnify and
hold Lessor harmless from any loss, cost or expense, including attorney fees,
in, arising out of, or relating to, Lessee's failure to comply with the
provisions of this paragraph 6.
c. Upon full compliance with all terms hereof, and at the termination
hereof, Lessee shall have the right and obligation to remove any and all of its
furniture, furnishings, or equipment then located on the Premises and to dispose
of the same. Lessee agrees that such removal of personal property shall occur
prior to the termination or cancellation of this lease or any extension thereof.
7. Permissible Use. The Lessee shall during the continuance of this
lease, conduct upon said Demised Premises a printing and/or office supply and
furniture business and shall neither use nor suffer the same to be used for any
other purpose without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld. Lessee shall conduct and manage the Demised
Premises in proper and orderly manner and will not allow the Demised Premises or
any part thereof to be used for any illegal or immoral purpose and will not
carry on or permit upon said Demised Premises any offensive, noisy, or dangerous
trade, business, manufacture or occupation of a nuisance. Lessee shall not alter
the drainage of the Premises.
Lessor hereby represents and warrants to the best of their knowledge
that (i) no "Hazardous Substances", as defined hereinafter, have been
discharged, dispersed, released, stored, treated, generated, disposed of or
allowed to escape on the Premises prior to the date of this Lease; (ii) the
operations of the business of The Xxxxxx Company (the "Company") on the Demised
Premises and the building in which it is conducted conform with all applicable
restrictive covenants, deeds and restrictions and all applicable Federal, state
and local laws, ordinances and regulations (including those relating to zoning
and environmental protection), and such buildings and operations do not encroach
upon, and are not encroached upon by, property of others; and all buildings or
operations of Company and the business that are subject to the Occupational
Safety and Health Act of 1970, as amended, comply with employee working
conditions as prescribed by such Act; (iii) the Demised Premises have no
underground storage tanks, either empty or containing any liquid, including but
without limitation solvents, fuel or waste oil, on any premises used in its
business; (iv) Company has obtained all permits, licenses and other
authorizations and filed all notices which are required to be obtained or filed
by Company for the operation of its business on the Demised Premises under
Federal, state and local laws relating to pollution, protection of the
environment or waste
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Exhibit (10.1)
disposal ("Environment Laws"); (v) the Company is in compliance in all respects
(a) will all terms and conditions of all required permits, licenses and
authorizations; and (b) all other applicable limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Environmental Laws or contained in any law,
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved there under; (vi) there are no past or present
events, conditions, circumstances, activities, practices, incidents, actions or
plans which may interfere with or prevent continued compliance in all respects,
or which may give rise to any common law or statutory liability, or otherwise
form the basis of any claim, action, suit, proceeding, hearing or investigation,
based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, release or threatened release into the environment, of any pollutant,
contaminant, waste or hazardous or toxic material with respect to the Demised
Premises, the Company or its businesses, properties or plants; and (vii) the
properties and plants of Company do not contain asbestos or PCBs in any form.
The Lessor shall, at their expense, take all necessary remedial
action(s) in response to the presence of any "Hazardous Substances" (an defined
hereinafter) in, on, under or about the Premises which occurred prior to the
date of this lease. The Lessor shall be solely responsible for, and shall
indemnify and hold harmless the Lessee, its directors, officers, employees,
agents, successors and assigns from and against any loss, cost, expense or
liability of any kind directly or indirectly arising out of or attributable to
the use, generation, storage, release, threatened release, discharge, disposal,
or presence of Hazardous Substances in, on, under or about the Premises which
occurred prior to the date of this lease, including, without limitation: (i) all
foreseeable consequential damages; (ii) the costs of any required or necessary
repair, cleanup or detoxification of the Premises, and the preparation and
implementation of any closure, remedial or other required plans; and (iii) all
reasonable costs and expenses incurred by the Lessee in connection with any of
the matters addressed in this paragraph, including but not limited to reasonable
attorney's fees and experts' fees.
Lessee hereby represents and warrants that, except for materials
customarily used in Lessee's normal course of business which shall be used and
disposed of in compliance with all applicable Environmental Laws and
regulations, no "Hazardous Substances", as defined hereinafter, will be
discharged, dispersed, released, stored, treated, generated, disposed of, or
allowed to escape on the Premises during the term of this lease or any renewal
hereof. For purposes of this lease, "Hazardous Substances" shall mean and
include those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency ("EPA")
and the list of toxic pollutants designated by Congress or the EPA or defined by
or in or pursuant to The Comprehensive Environmental Remediation, Compensation
and Liability Act ("CERCLA"), The Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. *6901 et seq., 42 U.S.C. *9601 et seq., or any other
Federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect. The Lessee shall, at its expense, take
all necessary remedial action(s) in response to the presence of any Hazardous
Substances in, on, under or about the Premises attributable to its occupancy
hereunder. The Lessee shall be solely responsible for, and shall indemnify and
hold harmless the Lessor, its directors, officers, employees, agents, successors
and assigns from and against any loss, cost, expense or liability of any kind
directly or indirectly arising out of or attributable to the use, generation,
storage, release, threatened release, discharge, disposal, or presence of
Hazardous Substances in, on, under or about the Premises during the term of this
lease or any renewal hereof, including, without limitation, all reasonable costs
and expenses incurred by the Lessor in connection with any of the matters
addressed in this paragraph, including but not limited to reasonable attorney's
fees and experts' fees.
8. Condition/Maintenance of Premises. Lessor warrants and represents to
the best of their knowledge that at the commencement of this lease the Premises
shall be in compliance with all material laws, rules and regulation affecting
the Premises or its use and that there is no adverse fact known to Lessor
relating to the physical, mechanical or structural condition of the Premises or
any portion thereof which has not been specifically disclosed to Lessee and not
incurred by other than ordinary wear and tear. The Lessor shall at its own
expense maintain and make all necessary repairs and replacements to the
fundamental structure of the Demised Premises, meaning the roof, exterior brick
and block walls, supporting walls, and foundations, unless the need for same
shall be caused by the negligence of Lessee, its employees, agents or invitees.
Such repairs and replacements, interior and exterior, ordinary as well an
extraordinary, shall be made promptly as and when necessary. All other repairs
to or maintenance of the Demised Premises shall be made by Lessee at its sole
cost and expense, and shall be made promptly as and when necessary. All repairs
and replacements shall be in quality and class at least equal to the original
work. Upon written notice by one party to the other that such maintenance,
repairs or replacements which are the responsibility of the other party are
necessary, and the failure of said other party to effect such maintenance,
repairs or replacements or commence work thereon (which work will be duly
prosecuted) within fifteen (15) days after such written notice is given, the
party giving notice shall have the right to make such repairs or replacements as
are specified in the notice at the expense of the other party and obtain
reimbursement from said other party for the cost thereof, including but not
limited to the right of the Lessor to collect such costs as additional rent and
the right of the Lessee to set off such costs against rentals.
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Exhibit (10.1)
9. Compliance with Laws. The Lessee at its sole expense shall comply
with all material laws, orders, and regulations of federal, state, county, and
municipal authorities, and with any direction of any public officer, pursuant to
law, which shall impose a duty upon the Lessor or the Lessee with respect to the
Demised Premises. The Lessee, at its sole expense, shall obtain all licenses or
permits which may be required for the conduct of its business within the
provisions of this Lease, or for the making of any permitted repairs,
alterations, improvements or additions, and the Lessor, where necessary, will
join with the Lessee in applying for all such permits or licenses.
10. Utilities. Lessor warrants that there is electricity, gas,
telephone, water and sewer available at the Premises in quantities sufficient
for the present use of the Premises. Lessor shall not be required to furnish any
utility or similar service to the Premises, including but not limited to, steam,
gas, water, heat or electricity. Except when due to the negligence of Lessor,
Lessor shall not be liable for any failure of any utility service or for injury
to person (including death) or damage to property resulting from steam, gas,
water, heat, electricity, rain or snow which may flow or leak from any part of
the leased property or from any pipes, appliances or plumbing works, from the
street or subsurface or from any other place, or for interference with light or
other easements however caused. Lessee shall pay all charges for utility
service, including but not limited to, steam, gas, water, heat, electricity and
other services used in or about or supplied to the Premises and shall indemnify
Lessor against any liability on such account.
11. Indemnity. Lessee during the term of this lease will indemnify
Lessor against and hold Lessor harmless from all claims, demands and/or causes
of action including all costs, expenses and attorneys fees of Lessor incident
thereto for (1) injury to or death of any person or loss of or damage to any
property, including the Premises, (2) failure by Lessee to perform any covenant
required to be performed by Lessee hereunder, (3) failure to comply with any
requirements of any governmental authority, (4) any mechanic's lien or security
agreement filed against the Premises, any equipment therein or any materials
used in the construction or alteration of any building or improvement thereon,
where such claims, demands, and/or cause of action arise from or are incidental
to the use of the Premises by Lessee, its officers, agents, servants, employees
and/or invitees.
12. Insurance. Lessee agrees that it will, at its cost and expense,
obtain and keep in force and effect in the names of both Lessor and Lessee, as
their respective interests may appear, general liability insurance against any
and all claims for personal injury or property damage occurring in, upon or
about the Premises during the term of this lease. Such insurance shall be
maintained for the purpose of protecting Lessor and Lessee pursuant to the
indemnity contained in the foregoing Section 11, but shall not be in
satisfaction of the indemnity obligations stated herein, and shall have limits
of liability of not less than Three Million Dollars ($3,000,000) for injuries to
any number of persons in any one accident or occurrence or for damage to
property in any one accident or occurrence. Lessee agrees that it will, at its
cost and expense, obtain and keep in force and effect in the names of Lessor and
Lessee, as their respective interests may appear, a standard fire and extended
coverage insurance policy or policies protecting the Premises from loss or
damage within the coverage of such insurance policy or policies for its full
insurable replacement value. Lessee will furnish to Lessor appropriate and
acceptable evidence of its compliance with the provisions of this paragraph,
such as certificates of insurance or copies of the policies. Such certificates
or policies shall provide that such insurance will not be cancelled or
materially amended unless thirty (30) days prior written notice of such
cancellation or amendment is given to Lessor. The minimum limits of the policies
of insurance required to be carried by Lessee under this Lease, shall be subject
to increase for the remaining term, if Lessor, in the exercise of it reasonable
judgment shall deem the same necessary for its adequate protection. Within sixty
(60) days after demand therefore by Lessor, Lessee, shall furnish Lessor with
evidence that it has complied with such demand for increased insurance.
13. Eminent Domain. If all the Premises or a substantial portion
thereof is taken by condemnation or under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein called
condemnation"), then either party may at its option terminate this lease as of
the date the condemning authority takes title or possession, whichever occurs
first, after giving thirty (30) days written notice to the other party of the
exercising of such option.
If any other taking (of the Premises or otherwise) adversely and
substantially affects Lessee's use, access, or rights of ingress or egress of or
to the Premises, then Lessee may elect to terminate this lease as of the date
the condemning authority takes possession. Lessee's election to terminate shall
be made in writing within thirty (30) days after Lessor has given Lessee written
notice of the taking (or in the absence of such notice, within fifteen (15) days
after the condemning authority has taken possession). If Lessee does not
terminate this lease in accordance with this section, this lease shall remain in
full force and effect as to the portion of the Premises remaining, except that
rent shall be reduced in the proportion that the area taken diminishes the value
and use of the Premises to Lessee. In addition, Lessor, at its expense, if the
lease is not terminated, shall promptly repair any damage to the Premises caused
by condemnation and restore the remainder of the Premises to the reasonable
satisfaction of Lessee.
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Exhibit Section
Exhibit (10.1)
Any award or payment made upon condemnation of all or any part of the
Premises shall be the property of Lessor, whether such award or payment made as
compensation for the taking of the fee or as severance damages; provided Lessee
shall be entitled to seek an award or payment for loss of or damage to Lessee's
trade fixtures, removable personal property, and additions, alterations and
improvements made to the Premises by Lessee, and for its loss of business or any
other consequential or special damages, such as Lessee's relocation and moving
expenses, provided that such award does not impair Lessor's ability to recover
its claim or the amount thereof. Lessor shall give notice to Lessee within ten
(10) days after receipt of notification from any condemning authority of its
intention to take all or a portion of the Premises. Notwithstanding anything,
expressed or implied, to the contrary contained in this Lease, Lessee, at its
own expense, may in good faith contest any such award for loss of or damage to
Lessee's trade fixtures, removable personal property, and additions, alterations
and improvements made to the Premises by Lessee, and for its loss of business or
any other consequential or special damages, such as Lessee's relocation and
moving expenses
14. Fire or Other Casualty Losses. In the event the Premises are
damaged or destroyed or rendered partially untenantable for their then use by
fire or other casualty without the fault of Lessee, Lessor shall repair and/or
rebuild the same as promptly as possible, provided that the proceeds from
Lessee's insurance policies are available to Lessor and sufficient in amount to
fully pay all costs of repair or rebuilding. Lessor's obligation hereunder is
merely to restore the Premises to substantially the same condition as existed
immediately prior to the happening of the casualty and shall not extend to the
repair or replacement of any improvements, additions, fixtures, installations or
exterior signs of the Lessee. If as a result of such partial destruction or
damage there is substantial interference with the operation of Lessee's business
in the Premises, the rent payable under this lease shall be abated in the
proportion that the portion of the Premises destroyed or rendered untenantable
bears to the total Premises. Such abatement shall continue for the period
commencing with such damage or destruction and ending with the completion by the
Lessor of the work of repair and/or reconstruction, if Lessor is obligated to
complete such work. If the damage or casualty was caused by the negligence or
fault of the Lessee, its employees, agents or invitees, there shall be no
abatement of rent. Notwithstanding the foregoing, in the event that fifty
percent (50%) or more of the Premises or fifty percent (5O%) or more of the
building situate on the Premises are destroyed or rendered untenantable by fire
or other casualty, either party shall have the option to terminate this lease
effective as of the date of such casualty and Lessor may in such event retain
the casualty insurance proceeds. The terminating party shall give the other
party notice of termination within forty-five (45) days after the happening of
such casualty. If neither party elects to terminate this lease, Lessor shall
repair and/or rebuild the Premises as promptly an possible as set forth above,
subject to any delay from causes beyond its reasonable control and the terms of
this lease shall continue in full force and effect, subject to equitable
abatement of rent as set forth above and subject to the insurance proceeds
covering the cost of such repair and/or rebuilding.
15. Assignment or. Subletting. Lessee shall not assign, transfer,
mortgage, or pledge this lease and will not sublet the Premises or any part
thereof without first obtaining the Lessor's written approval, which shall not
be unreasonably withheld or delayed. Lessor reserves the right to sell its
interest in the Premises and to assign or transfer this lease upon the condition
that in such event this lease shall remain in full force and effect, subject to
the performance by Lessee of all the terms, covenants and condition on its part
to be performed, and upon the further condition that such assignee or transferee
(except an assignee or transferee merely for security) agrees to be bound to
perform all terms, covenants and conditions of this lease. Upon any such sale,
assignment or transfer, other than merely as security, Lessee agrees to look
solely to the assignee or transferee with respect to all matters in connection
with this lease and Lessor shall be released from any further obligations
hereunder.
16. Events of Default by Lessee. In the event that the rent, or any,
part thereof, of any additional rental or other payment shall not be paid on any
day when such payment is due and such default shall continue for a period of ten
(10) days after written notice by Lessor to Lessee; or if Lessee should fail in
the performance of, breach or permit the violation of any of the covenants,
conditions, terms, or provisions contained in this lease which on the part of
the Lessee ought to be observed, performed or fulfilled and shall fail to cure
or make good such failure, breach or violation within thirty (30) days after
written notice and demand from Lessor; or if the Demised Premises or any part
thereof shall be abandoned; or if Lessee shall be disposed therefrom by or under
the authority of anyone other than Lessor; or if Lessee shall file any petition
or institute any proceeding under an insolvency or bankruptcy act (or any
amendment or addition thereto hereafter made) seeking to effect an arrangement
or its reorganization or composition with its creditors; or if in any
proceedings based on the insolvency of Lessee or relating to bankruptcy
proceedings, a receiver or trustee shall be appointed for Lessee or the Demised
Premises and be not discharged within ninety (90) days or if the Lessee's estate
created hereby shall be taken in execution or by any process of law; or if
Lessee shall admit in writing its inability to pay its obligations generally as
they become due, then, at the option of Lessor, this lease and everything herein
contained on the part of the Lessor to be kept and performed shall cease,
terminate and be at an end, and Lessor shall be entitled to have again and
repossess the Premises as its former estate and Lessee shall be put out. This
remedy of forfeiture shall be deemed cumulative and in addition to all other
remedies provided by law. In the event Lessor exercises its option to terminate
this lease, repossess the Premises and put Lessee out as
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Exhibit Section
Exhibit (10.1)
herein provided, this shall not relieve Lessee from its obligations to pay rent
provided to be paid herein for the remainder of the term of this lease and
Lessee shall remain liable to Lessor for any costs or expenses incurred by
Lessor in reletting the Premises and for the difference between the rent
received upon such reletting and the rent herein specified to be paid by Lessee
for the term hereof.
17. Surrender of Premises. Upon expiration of the term of this Lease or
any renewal term, or the sooner termination of this Lease or repossession of the
Premises as herein provided, the Lessee shall peaceably surrender possession of
the Premises in as good order and condition as they now are, reasonable wear and
tear excepted, and shall deliver all keys to the Premises to Lessor.
18. Right of Access of the Lessor. The Lessee further covenants and
agrees that the Lessor may have access to the Demised Premises at all reasonable
times and upon reasonable notice for the purpose of the examining or exhibiting
the same for sale.
19. Notices. All notices permitted or required to be given hereunder
shall be effectual if in writing signed by the party given notice and sent by
certified or registered U.S. mail, postage prepaid, to the other parties at the
following addresses:
Lessor: Mr. and Xxx. Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxx Xxx Xxxx
Xxxxxx Xxxx, Xxxx 00000
Copy to: Xxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Lessee: CM Acquisition Corp.
c/o Champion Industries, Inc.
P. O. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Copy To: Xxxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
20. Broker. Lessee and Lessor covenant, warrant and represent that
there was no broker instrumental in consummating this lease and that no
conversations or prior negotiations were held with any broker concerning the
renting of the Demised Premises. Lessee and Lessor each agree to hold the other
harmless against any claim for brokerage commission arising out of any
conversations or negotiations had by Lessee or Lessor with any broker.
21. Title and Warranty/Subordination. Lessor covenants and agrees with
Lessee that Lessor is the lawful owner of the Premises and that they are free
and clear of all other liens, claims and encumbrances whatsoever, except the
permitted encumbrances described below, zoning requirements, covenants,
conditions, easements and restrictions of record and non-delinquent taxes and
assessments, and Lessor will defend the same against all other claims
whatsoever. Lessor further covenants and agrees that Lessee by paying the rents
and observing and keeping the covenants of this lease on its part to be kept,
shall peaceably and quietly hold, occupy and enjoy the Premises during the term
herein created, or any extension.
Upon request by the Lessor, Lessee shall subordinate its rights
hereunder to the lien of any mortgage or deed of trust, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the Premises, and to all advance made or hereafter to be made upon the
security thereof and will attorn to the mortgagee or beneficiary or their
assigns in the event of foreclosure; provided, however, that a condition
precedent to Lessee's attornment and requirement to subordinate hereunder shall
be that Lessee, upon any default in the terms of such financing by Lessor, shall
have the right to pay the rental due hereunder directly to the mortgagee,
trustee or beneficiary of such deed of trust or other persons to whom Lessor may
be obligated under such financing and, so long as Lessee does so pay the rentals
as herein provided and perform all of its obligations pursuant to this lease,
thin lease and all Lessee's rights and options hereunder shall remain in full
force and effect as to such mortgagee, trustee or beneficiary or other financing
obligee of Lessor. Lessee shall, upon request of any party-in-interest, execute
within ten (10) days of Lessee's receipt, such instruments or certificates to
carry out the intent of this paragraph. Provided, however, that nothing
contained in such instruments or certificates required by
Exhibit (10.1)-p6
Exhibit Section
Exhibit (10.1)
Lessor or other party-in-interest shall be in derogation of any rights granted
to Lessee hereunder, nor expand Lessee's obligations hereunder.
22. Zoning; Permits. Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease and all terms, covenants and conditions hereof are
in all respects subject and subordinate to all zoning restrictions affecting the
Premises, and the Lessee shall be bound by such restrictions. The Lessor does
not warrant that any licenses or permits which may be required for Lessee's
business to be conducted on the Premises will be granted, or if granted will be
continued in effect or renewed. Any failure to obtain licenses or permits or any
revocation thereof or failure to renew shall not release Lessee from continuing
performance of this Lease.
23. Default by Lessor. In the event the Lessor shall fail for a period
of thirty (30) days after written notice to comply with, keep and perform any of
the agreements herein contained on its part to be complied with, kept or
performed, then at the option of the Lessee this lease may be immediately
terminated, but without prejudice to any right of action or remedy which might
otherwise be used by Lessee to enforce its lawful rights in relation to any
antecedent breach or covenant or agreement herein contained. Waiver of any
default shall not be construed as a waiver of any subsequent default or
condition of the lease to which such default related.
24. Miscellaneous.
a. Wherever the words "Lessor" and "Lessee" appear in this lease,
they shall include the parties and their respective sublessee
heirs, devisees, executors, administrators, successors and
assigns, and the provisions of this agreement are binding upon
them. Those words as may be used herein, shall be construed to
include the plural as well as the singular; and the necessary
grammatical changes required to make the provisions apply to
either corporations, partnerships, other entities, or
individuals, masculine or feminine, shall in all cases be
assumed as though fully expressed. The neuter gender has been
used herein for convenience only.
b. This lease expresses the entire agreement between the parties
hereto. No amendments, modification, or waiver of any
provision hereof shall be valid unless in writing and signed
by all of the parties hereto.
c. This agreement shal1 be construed in accordance with the laws
of the State of Ohio.
d. If any provisions or paragraphs or part thereof of this
agreement are held invalid or unenforceable, such invalidity
or unenforceability shall not affect the validity or enforce
ability of the other portions hereof, all of which provisions
are hereby declared severable.
e. This lease shal1 not be recorded. However, the parties hereto
mutually agree, upon the written request of either one to the
other, to execute a memorandum of this lease in recordable
form as per Exhibit "B" for filing and recording in the Office
of the Recorder of Xxxxxxxx County, Ohio.
Exhibit (10.1)-p7
Exhibit Section
Exhibit (10.1)
IN WITNESS WHEREOF, the parties do hereunto set their hands to multiple
copies hereof, each of which shall constitute an original, by their respective
officers thereunto duly authorized all as of the day and year hereinabove set
forth.
Witness as to Lessor: LESSOR:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- --------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
/s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
XXXXXX X. XXXXXX, XX.
Dated: August 21st 1996
----
Witness as to Lessee: LESSEE:
/s/ Xxxxx Xxxx CM ACQUISITION CORP.,
----------------------------
an Ohio corporation
/s/ Xxx Xxxxx
---------------------------
Dated: August 21st 1996 By /s/ Xxxxxx Worth
---- ----------------------------
Its President
----------------------
Exhibit (10.1)-p8
Exhibit Section
Exhibit (10.1)
8TATE OF MI )
) SS:
COUNTY OF EMMET )
The foregoing instrument was acknowledged before me, a Notary Public in
and for the State of MI this 9th day of August 1996, by Xxxxxx X. Xxxxxx, Xx.
and Xxxxxx X. Xxxxxx.
Xxxxxx X. Xxxxxxxx
------------------
Notary Public, State of MI
STATE OF OHTO )
) SS:
COUNTY OF XXXXXXXX )
BE IT REMEMBERED that on this 21st day of August, 1996, before me, the
Subscriber, Notary Public in and for said county and state, personally appeared
/s/Xxxxxx X. Worth III President, of CM ACQUISTION CORP. the corporation whose
name is subscribed to and which executed the foregoing instrument, and for
themselves and as such officers and for and on behalf of said instrument by
authority of the Board of Directors, and on behalf of said corporation; and that
the signing and execution of said instrument is their free and voluntary act and
deed, their free act and deed as such officers, and the free and voluntary act
and deed of said corporation, for the uses and purposes in said instrument
mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
Notarial Seal on the day and year last aforesaid.
D. Xxxx Xxxxxxx
---------------
Notary Public
This Instrument Was Prepared By:
Xxxxxx X. Xxxxxx
Huddleston, Bolen, Xxxxxx, Xxxxxx & Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Exhibit (10.1)-p9
Exhibit Section
Exhibit (10.1)
AGREEMENT OF LEASE
XXXXXX COMPANY
EXHIBIT "A"
Situate in the City of Cincinnati, County of Xxxxxxxx, State of Ohio, and being
particularly described as follows:
Beginning at the Northeast corner of Fifteenth and Providence Streets, thence in
the North line of Fifteenth Street, North 80 [degrees]11' East 25.09 feet to a
point, thence North 10 [degrees]06' West, 90.10 feet to a point in the South
line of Gore Alley, thence in said line South 80 [degrees]11' West, 24.94 feet
to the Southeast corner of Gore Alley and Providence Street, thence in the East
line of Providence Street South 10 [degrees]00' East, 90.10 feet to the place of
beginning.
Exhibit (10.1)-p10
Exhibit Section
Exhibit (10.1)
XXXXXX COMPANY LEASE
Exhibit "B"
This Memorandum of Lease is made as of the ___ day of August, 1996, by
and between Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, Xx., _________________
("Lessor") and CM Acquisition Corp., an Ohio corporation having its principal
place of business at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000 ("Lessee").
WITNESSETH:
Lessor has leased to Lessee and Lessee has leased from Lessor that
certain parcel of real property as described on Exhibit A attached hereto and
made a part hereof, al1 upon and subject to such covenants, terms, conditions
and agreements set forth in a certain Lease between Lessor and Lessee dated
_____________, 1996 ("Lease"), which Lease is incorporated herein by reference.
The term of the Lease shall be for an original term to begin on
September 1, 1996, and shall extend for a period of five (5) years, expiring on
August 3l, 2001 ("Initial Term"), unless sooner terminated or extended as
provided for in the Lease. Pursuant to the Lease, Landlord has granted Tenant
the right and option to extend the Initial Term for two additional terms of five
(5) years each to begin upon the expiration of the Initial Term, the first to
begin on September 1, 200l, and the second to begin on September 1, 2006.
IN WITNESS WHEREOF, this Memorandum of Lease has been executed as of
the day, month and year first above written.
Signed and delivered
in the presence of:
-------------------------- ---------------------------
Witness Lessor
-------------------------- ---------------------------
Witness Lessor
LESSEE: CM Acquisition Corp. an Ohio corporation
By:
-------------------------- ---------------------------
Witness
Its:
-------------------------- ---------------------------
President
Exhibit (10.1)-p11
Exhibit Section
Exhibit (10.1)
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a Notary Public in
and for the State of Ohio, this ___ day of August, 1996, by Xxxxxx X. Xxxxxx,
Xx. and Xxxxxx X. Xxxxxx.
------------------------------------
Notary Public, State of Ohio
STATE 0F OHIO )
) SS:
COUNTY OF XXXXXXXX )
BE IT REMEMBERED that on this ___ day of August, 1996, before me, the
Subscriber, Notary Public in and for said county and state, personally appeared
and, Secretary, of CM Acquisition Corp., the corporation whose name is
subscribed to and which executed the foregoing instrument, and for themselves
and as such officers and for and on behalf of said instrument by authority of
the Board of Directors, and on behalf of said corporation; and that the signing
and execution of said instrument is their free and voluntary act and deed, their
free act and deed as such officers, and the free and voluntary act and deed of
said corporation, for the uses and purposes in said instrument mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my Notarial
Seal on the day and year last aforesaid.
------------------------------------
Notary Public
This Instrument Was Prepared By:
Xxxxxx X. Xxxxxx
Huddleston, Bolen, Xxxxxx, Xxxxxx & Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Exhibit (10.1)-p12
Exhibit Section
Exhibit (10.1)
MEMORANDUM OF LEASE
XXXXXX COMPANY
EXHIBIT "A"
Situate in the City of Cincinnati, County of Xxxxxxxx, State of Ohio, and being
particularly described as follows:
Beginning at the Northeast corner of Fifteenth and Providence Streets, thence in
the North line of Fifteenth Street, North 80 [degrees]11' East 25.09 feet to a
point, thence North 10 [degrees]06' West, 90.10 feet to a point in the South
line of Gore Alley, thence in said line South 80 [degrees]11' West, 24.94 feet
to the Southeast corner of Gore Alley and Providence Street, thence in the East
line of Providence Street South 10 [degrees]00' East, 90.10 feet to the place of
beginning.
Exhibit (10.1)-p13
