Exhibit 10.56
XXXX WHOLESALERS OF NITRO, INC.
This agreement of Lease made this 1st day of JANUARY by and between
XXXXXX X. XXXXXXX, XX., XXXXX XXXXXXXX, XXXXXXX X. XXXXXXX (hereinafter
collectively called "Lessors") and XXXX WHOLESALERS OF NITRO, INC. AN OHIO
CORPORATION (Hereinafter called "Lessee").
W I T N E S S E T H:
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 the Lease shall be five (5) years commencing with the 1st day
of JANUARY, 1995 and ending with the 31st day of DECEMBER, 1999.
3. Lessee shall pay to Lessor as rent for the lease premises the sum of
sixty four thousand, nine hundred and ninety two ($64,992) a year, payable in
advance on the first day of every month during the term hereof in installments
of FIVE THOUSAND, FOUR HUNDRED SIXTEEN DOLLARS ($5,416).
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, penalties 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.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands on the day
and year aforesaid.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: LESSOR:
/s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx,
XXXXXXX - XXXXXXXX - XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
XXXXXXX - XXXXXXXX - XXXXXXX
LESSEE:
Xxxx Wholesalers of Nitro, Inc.
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By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
President
XXXX WHOLESALERS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President
XXXX WHOLESALERS, INC.
STATE OF OHIO )
) SS
COUNTY OF XXXXXXXX )
BE IT REMEMBERED, that, on this 1ST DAY OF JANUARY, 1995, before me, the
subscriber, a Notary Public in and for said county and State, personally came
Xxxxxx X. Xxxxxxx, Xx.; Xxxxx Xxxxxxxx; Xxxxxxx X. Xxxxxxx 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.
Xxxxxxxxx Xxxxx-Xxxxxx
-----------------------------
Notary Public
STATE OF OHIO )
) SS
COUNTY OF XXXXXXXX )
BE IT REMEMBERED, that, on this 1st day of JANUARY, 1995, before me, the
subscriber, a Notary Public in and for said County and State, personally came
the above-named Lessee, Xxxx Wholesalers of NITRO, Inc., by Xxxxxx X. Xxxxxxx,
Xx its President and Xxxxx X. Xxxxxx 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 hereunto set my hand and affixed my notarial
seal on the day and year last above written.
Xxxxxxxxx Xxxxx-Xxxxxx
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Notary Public
Xxxx Wholesalers of Nitro, Inc.
Lease Exhibit A
WITNESSETH: That, in consideration of the rents, covenants and conditions
hereinafter set forth on the part of Lessee to be paid, performed and observed,
Lessor does hereby LET, LEASE and DEMISE unto Lessee all of that certain parcel
of land, together with the improvements thereon and the appurtenances thereunto
belonging, situate in Pocatalico District, Xxxxxx County, West Virginia, being a
part of Xxxx 00 xx Xxxx "X" of the Nitro Reservation as shown on a map
designated as "Map of U.S. explosives Plant C, Showing Plots #1 to #25 Remaining
Unsold" prepared by X.X. Xxxxxx, C.E., dated September 11, 1929, recorded in the
office of the Clerk of the County Court of Xxxxxx County, West Virginia, in Map
Book 2, at pages 30 to 37 inclusive, which tract is more particularly bounded
and described as follows:
Beginning at an old concrete monument located in the northwesterly
right of way line of a 40 foot roadway known as XxXxxxxx Road, which
monument marks the easterly common corner of the parcel herein conveyed
with a 1.67 acre tract of land owned by F.M.C., Inc; thence running N.
68(0) 02' W. 525.00 feet to an iron pin; thence running N. 21(0) 48' E.
398.50 feet to an iron pin; thence running S. 68(0) 12' E. 525.00 feet to
an iron pin located in the northwesterly right of way line of XxXxxxxx
Road; thence running with XxXxxxxx Road, S. 21(0) 48' W. 400.00 feet to
the place of beginning, containing 4.812 acres, as laid out and shown on a
map entitled "Map Showing Part of 92,865 Acre Trace Located in Pocatalico
District, Xxxxxx County, W. Va.", recorded in the office of the Clerk of
the County Court of Xxxxxx County, West Virginia.
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 Xxxxxx X. Xxxxxxx, Xx.,
Xxxxx Xxxxxxxx and Xxxxxxx X. Xxxxxxx (the "Lessor"), Xxxx Wholesalers of
Nitro, Inc. (the "Assignor") and Xxxxxx Products Ltd. (the "Assignee")
(which may in the future do business under the name of Xxxx Wholesalers,
Inc.).
WHEREAS, Assignor is the Lessee under that certain lease dated January 1,
1995 (the "Lease") by and between the Lessor and Assignor for premises located
at XxXxxxxx Road, Nitro, West Virginia 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:
XXXX WHOLESALERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
ASSIGNEE:
XXXXXX PRODUCTS LTD.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
CONSENTED TO:
XXXXXX
XXXX WHOLESALERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
