Exhibit 10.1
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement (this "Amendment") is entered
into as of the 26th day of July, 2004, by and between Xxxxxxx Xxxxxx Real Estate
Company, an Ohio corporation ("Lessor"), and Rocky Shoes & Boots, Inc., an Ohio
corporation ("Lessee").
RECITALS
A. Lessor and Lessee entered into that certain Lease Agreement dated as of
May 1, 1998, which was amended in that Amended and Restated Lease Agreement
dated March 1, 2002 (collectively, the "Lease"), whereby Lessee agreed to lease
from Lessor the shoe factory located at 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx
and the parking lot located at 00-00 Xxxxx Xxxxxx in Nelsonville, Ohio and more
particularly described on Exhibit A (the "Leased Premises");
B. Lessee is operating the Leased Premises under a Renewal Option, which
commenced March 1, 2004 and expires February 28, 2005;
X. Xxxxxx and Lessee now desire to amend the Lease to change the Rent, to
amend the terms and conditions of the Option to Purchase the Leased Premises and
to otherwise modify the Lease as herein provided, all on and subject to the
terms and conditions hereof.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Lease: The term "Lease" shall hereinafter be meant to include both the
Lease and this Amendment.
2. Section 13.01, Renewal Option, of Article 13, OPTION TO RENEW OR EXTEND,
is hereby deleted in its entirety and replaced with the following:
13.01 If the Lessee is not then in default of its obligation to pay
rent or of any other obligations hereunder, Lessee shall have
the right to renew this Lease for Renewal Terms of one year
beginning on March 1, 2004, under the same terms and
conditions as this Lease; provided, however, that the monthly
base Rent during the Renewal Terms shall be increased to an
amount equal to 104% of the base Rent of the immediately
preceding Lease year, except that the monthly base rent during
the Renewal Option beginning March 31, 2004 and expiring
February 28, 2005 shall be Five Thousand Dollars ($5,000.00).
Lessee may exercise the options to renew by giving Lessor
written notice thereof at least six months prior to the
expiration of the Initial Term and each subsequent Renewal
Term;
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3. Article 14, Option to Purchase Leases Premises, is hereby deleted in its
entirety and replaced with the following:
Article 14. Purchase and Sale
14.1 Lessor agrees to sell and convey to Lessee and Lessee agrees
to buy and pay for the Leased Premises on or before January
31, 2005.
14.2 Lessor agrees at the time of closing to convey fee simple
title to the Leases Premises to Lessee by general warranty
deed subject to (a) zoning ordinances affecting the Leased
Premises, (b) ad valorem taxes not yet due and payable and (c)
such other matters as may be agreed to in writing by the
Lessee.
14.3 The purchase price (the "Purchase Price") of the Leased
Premises shall be Five Hundred Five Thousand Dollars and
00/100 ($505,000.00), and shall be paid by Lessee's certified
check, bank check or wire transfer at the closing of the sale
of the Leased Premises.
14.4 Lessor warrants and represents to Lessee that as of the date
hereof and as of the date of closing:
a. Lessor is the owner of good and marketable fee simple
title to the Leased Premises, free and clear of all
liens, easements, restrictions, options, reservations,
mortgages, security titles and interest, covenants,
conditions, rights of way, licenses, permits,
encumbrances, leases, tenancies, claims of lessees in
possession and rights of any kind, except for matters
set forth in Exhibit B attached hereto and incorporated
herein by reference (the "Permitted Encumbrances").
b. So long as this agreement remains in force, Lessor will
not lease, rent or convey all or any portion of the
Leased Premises or any interest therein, or enter into
any agreement granting to any person or entity any right
with respect to the Leased Premises, or any portion
thereof, without first obtaining the written consent of
Lessee.
x. Xxxxxx is not now a party to any litigation,
investigation or other proceeding nor to the knowledge
of Lessor is any such litigation, investigation or
proceeding threatened, which relates to the Leased
Premises, directly or indirectly, or Lessor's right to
sell the Leased Premises.
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x. Xxxxxx has no knowledge of any pending, threatened or
contemplated condemnation proceedings, which will or may
affect the Leased Premises in any, respect whatsoever.
x. Xxxxxx has no notice of and is not aware of any
violation of any laws, ordinances, orders, restrictive
covenants or other requirements affecting the Leased
Premises, and there are no violations of record of any
of the foregoing.
f. There are no commitments to governmental authorities or
agencies or utilities or quasi govern- mental entities,
which affect the Lease Premises and no conditions of
zoning of the Leased Premises, which have not been
completed, fulfilled.
g. There are no taxes, assessments or levies of any type
(except ad valorem taxes for year 2004) relating to the
Leased Premises which are presently due and payable or
which may become a lien or other charge against any part
of the Leased Premises.
h. The improvements (if any) are within the boundary lines
of the Leased Premises described in Exhibit A and there
are no encroachments on the Leased Premises of any
adjoining landowner.
i To the best of Lessor's knowledge, the Leased Premises
has never been used as a landfill to receive solid
waste, whether or not hazardous and has never been used
for the disposal, storage or treatment of any waste,
trash, garbage, industrial by-product, chemical or
hazardous substance of any nature, including without
limitation radioactive materials, PCBs, asbestos,
pesticides, herbicides, pesticide or herbicide
containers, untreated sewage, industrial process sludge
or any "hazardous substance" as such term is defined in
the following sources as amended from time to time: (i)
the Resource and Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901 et seq. ("RCRA"); (ii) the
Hazardous Material Transportation Act, 49 U.S.C. Section
1801, et. seq. ("HMTA"); (iii) the Comprehensive
Environmental Response Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 et. seq. ("CERCLA"); (iv)
applicable laws of the jurisdiction where the Leased
Premises is located, and (v) any federal, state or local
statutes, regulations, ordinances, or rules or orders
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issued or promulgated under or pursuant to any of those
laws or otherwise by any department, agency or other
administrative, regulatory or judicial body. The Leased
Premises does not contain asbestos insulation or
electrical transformers cooled by phenylchlorobenzene or
biphenyls. Lessor hereby agrees to indemnify Lessee for
any liability, costs, damage, loss, claim, expense or
cause of action (including but not limited to attorneys'
fees and court costs) incurred by or threatened against
Lessee as a result of a breach of any of the warranties
or representations contained in this paragraph.
14.5 Prior to the closing, Lessee may, but is not obligated,
deliver to Lessor, at its sole discretion and cost, a boundary
survey (the "Survey") of the Leased Premises, prepared by a
surveyor licensed in Ohio.
14.6 At closing, Lessor's title to the Leased Premises shall
be good and marketable and free and clear of all liens and
encumbrances except: (a) the lien of real estate taxes not
then due and payable, (b) easements of record which do not
interfere with Lessee's proposed use, and (c) all applicable
zoning and building laws, ordinances and regulations. Lessee
shall secure and Lessor shall pay for a preliminary title
insurance commitment and, after the date of closing, an
owner's title insurance policy with extended coverage or
comparable form issued by a title insurance company selected
by Lessee (the "Title Company") in the amount of the purchase
price. The title policy shall insure title to the Leased
Premises (including all access, parking and utility easements)
in Lessee, free and clear of all liens and encumbrances,
except as limited above. If title shall prove defective,
Lessor shall perfect the same promptly, but if title cannot be
perfected by closing, Lessee may terminate this contract or
may, at its election, take title as it then is (with the right
to deduct from the purchase price liens or encumbrances of a
definite or ascertainable amount), upon giving written notice
of such election to Lessor. Marketable title as used herein
shall mean title which the Title Company will insure at its
regular rates, subject only to standard exceptions and matters
referred to in this paragraph.
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14.7 The purchase and sale herein shall be closed on or before
January 31, 2005.
14.8 At the closing, each party shall execute and deliver all
documents necessary to effect and complete the closing.
14.9 Lessor shall pay all conveyance or other taxes payable in
connection with the recordation of the general warranty deed.
14.10 Lessee shall pay all costs of recording the general warranty
deed and all other documents related to the transaction.
14.11 Rent shall be prorated as of the date of closing. Any other
prepaid rent previously paid by Lessee to Lessor will be
credited to Lessee against the Purchase Price.
14.12 At the closing, the Lessor shall convey the Leased Premises by
general warranty deed and deliver such general warranty deed
to the Lessee at the closing. At the closing, Lessor shall
deliver to Lessee an affidavit in form reasonably satisfactory
to Lessee certifying that Lessor is not a "non-foreign person"
which would subject Lessor to withholding tax provisions under
Section 1445 of the Internal Revenue Code of 1986 as amended.
At closing, Lessor will deliver a lien waiver, acceptable to
Lessee and Lessee's title insurer.
14.13 Ad valorem taxes on the Leased Premises for the year in which
the purchase and sale hereunder is closed shall be prorated as
of the end of the day of the closing on a calendar year basis.
In the event tax bills have not been issued for the year of
closing, taxes shall be prorated based on the previous year's
tax xxxx. All income received and expenses incurred with
respect to the Leased Premises shall also be prorated as of
the date of the closing and appropriate payments or credits
made at closing. Lessor shall deliver possession of the Leased
Premises to the Lessee on or before the date of closing.
4. Each party represents to the other that it has had no dealings with any
realtor, broker or agent in connection with the negotiation of this
Amendment and each agrees to indemnify and hold the other harmless from
and against the claims of or liability to any other realtor, broker or
agent claiming by, through or on behalf of such party with respect to this
Amendment.
5. The Lease, as amended, constitutes the entire agreement of the Lessor and
Lessee with respect to the matters stated in the Lease and may not be
amended or modified unless such amendment or modification shall be in
writing and signed by Lessor and Lessee.
6. The Lease shall be governed in all respects by the laws of the State of
Ohio.
7. This Amendment may be executed in one or more counterparts, each of which
shall be
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deemed to be an original, and all of which, when taken together, shall
constitute one agreement binding upon the parties thereto.
8. Except as amended or modified hereby, all terms, covenants and conditions
of the Lease as heretofore in effect, shall remain in full force and
effect through the term as extended, and, as amended and modified hereby,
all of the terms, covenants and conditions of the Lease are hereby
ratified and confirmed in all respects. In the event of any conflict
between the terms of this Amendment and the terms of the original Lease,
the terms of this Amendment shall control.
9. All capitalized terms used herein, and not otherwise defined, shall have
the meanings ascribed to said terms in the Lease.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Lease Agreement effective as of the date first set forth above.
LESSOR: LESSEE:
XXXXXXX XXXXXX REAL ESTATE ROCKY SHOES & BOOTS, INC.,
COMPANY, an Ohio corporation an Ohio corporation
By: /s/ Xxxxxxxx Xxxxxx Xxxxx By: /s/ Xxxxx X. XxXxxxxx
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Xxxxxxxx Xxxxxx Xxxxx Xxxxx X. XxXxxxxx
President Vice President and Chief Financial
Officer
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