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EXHIBIT 10.1
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE is made as of the 1st day of January, 1999,
between ADJ CORP., a West Virginia corporation, hereinafter called "Lessor," and
CHAMPION INDUSTRIES, INC., a West Virginia 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 conditions hereinafter set forth, the second floor, consisting of
approximately 8,400 square feet, and the front entry lobby area, consisting of
approximately 400 square feet (the "Demised Premises" or "Premises") of the
building situate upon the real property located on Industrial Lane in Xxxx
Industrial Park, Xxxxx 0, Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx, described
on Exhibit A attached hereto and made a part hereof ("the Building"), together
with the right to use, in common with others, the existing paved parking,
entryways and public stairways. Lessee acknowledges that Lessor retains the
right to apportion designated areas of the paved parking among its Building
tenants. Lessee further acknowledges the Premises and Building to be in adequate
condition at the commencement of this Lease.
Lessee acknowledges that Lessor has/will have a separate tenant for the
first floor of the Building whose net lease will provide that the first floor
tenant is responsible for all taxes, utilities, insurance, maintenance and
repair of the Building, except as specifically set forth herein to be an
obligation of the second floor Lessee. Thus, reference in this Lease Agreement
to the Lessor being obligated to pay for or provide any tax, utility, insurance,
maintenance or repair shall be read to include the payment or provision of such
by the first floor tenant.
2. Term. The term of this lease shall be sixty (60) months commencing
on January 1, 1999, and ending at 11:59 p.m. on December 31, 2003, both dates
inclusive, unless sooner terminated as hereinafter provided or unless renewed.
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 $390,000.00 payable monthly in advance in equal installments of $6,500.00
each for the original term of 60 months hereof, the first of such installments
being payable on the 1st day of January, 1999, and the remaining installments
being due and payable on the 1st day of each calendar month thereafter.
All rental shall be payable to Lessor at Xxxx Xxxxxx Xxx 0000,
Xxxxxxxxxx, Xxxx Xxxxxxxx, 00000, or at such other place as Lessor may direct in
writing.
4. 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 laws of the State of West Virginia. The lien and right given
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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 West Virginia.
5. Construction and Alterations by Lessee. Lessee may after having
first obtained the written consent of Lessor, and at Lessee's full cost and
expense alter or construct improvements upon the Demised Premises, or make
alterations or site improvements 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, at the option of Lessor, become a part of
the Demised Premises and shall be the sole property of Lessor upon the
termination of this Lease.
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 effect the
Lessor's interest in the 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.
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 within ten (10) days after the termination or cancellation of this
lease or any extension thereof. Lessee shall notify Lessor in writing thirty
(30) days prior to termination of this lease by its terms or within five (5)
days after cancellation of this lease by Lessor or Lessee of its election to
remove said property or said property may, at Lessor's option, be and become the
property of Lessor. If Lessor shall elect not to retain the property it may be
removed by Lessor at Lessee's expense.6. Permissible Use. The Lessee shall
during the continuance of this lease, use said Demised Premises for office
administration purposes 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. Lessee agrees that if Lessee's actions have the
effect of creating a nuisance or interference with the lawful rights of any
other parties or may constitute a violation of any law, ordinance, rule,
regulation or the like, then Lessee shall be responsible for
Exhibit (10.1)-p2
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taking all corrective action in relation thereto and with respect to which
Lessor shall cooperate at Lessee's sole cost and expense.
Lessee hereby represents and warrants that no "Hazardous
Substances", as defined hereinafter, have been or will be discharged, dispersed,
released, stored, treated, generated, disposed of, or allowed to escape on the
Premises. 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 42 U.S.C. Section 9601 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. 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, 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 Lessor in connection with any of the matters addressed
in this paragraph, including but not limited to reasonable attorney's fees. The
Lessee shall, upon the request of Lessor, provide the Lessor with a bond or
letter of credit, in form and substance satisfactory to the Lessor, in an amount
sufficient to cover the cost of any required remedial action.
7. Maintenance of Premises. Lessee shall maintain all portions of the
Premises and adjoining areas in a clean, orderly, sanitary condition, free of
any unlawful obstructions. Lessee hereby assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Premises except that Lessor shall be responsible for any
repairs or replacement to the fundamental structure (roof, exterior walls,
foundation) or utility systems (air conditioning/heat system, plumbing systems,
electrical circuitry). Lessee further agrees that it will commit no waste on the
Premises.
8. Compliance with Laws. The Lessee at its sole expense shall comply
with all 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 any 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.
9. Utilities. Lessor shall provide, at its cost, the following
utility and related services, if required: gas, water, electricity and refuse
removal. 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,
Exhibit (10.1)-p3
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from the street or subsurface or from any other place, or for interference with
light or other easements however caused.
10. 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 causes of action arise from or are
incidental to the use of the Premises by Lessee, its officers, agents, servants,
employees and/or invitees.
11. 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 10, but shall not be in
satisfaction of the indemnity obligations stated herein, and shall have limits
of liability of not less than One Million Dollars ($1,000,000) 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 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 fifteen (15) 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 its
reasonable judgment shall deem the same necessary for its adequate protection.
Within sixty (60) days after demand therefor by Lessor, Lessee, shall furnish
Lessor with evidence that it has complied with such demand for increased
insurance.
12. Eminent Domain. In the event the entire Premises, or such portion
thereof as will make the Premises unsuitable for the purposes leased, shall be
taken by eminent domain or threat of eminent domain, the term of this lease
shall terminate on the date Lessee is required to surrender possession. In the
event that only a part of the Premises shall be so taken, then (i) if
substantial structural alteration or reconstruction of the improvements upon the
Premises shall, in the reasonable opinion of Lessor be necessary or appropriate
as a result of such taking, Lessor may, at its option, terminate this lease as
of the date Lessee surrenders possession of such portion of the Premises by
notifying Lessee in writing of such termination within sixty (60) days following
the date on which Lessor shall have received final notice of such taking, or
(ii) if Lessor does not elect to terminate this lease as aforesaid, this lease
shall be and remain unaffected by any such taking, except that the rent shall be
equitably abated in the proportion that the taken premises bears to the entire
Premises. In the event of termination of this lease as hereinabove provided,
rental and other charges shall be paid to the date Lessee surrenders possession
and any such payments made beyond that date shall be refunded by Lessor to
Lessee. In the event of any taking, in whole or in part, by eminent domain
Exhibit (10.1)-p4
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proceedings or threat of eminent domain proceedings, the entire award shall be
the property of the Lessor. Notwithstanding the foregoing provision, Lessee
shall have the right to make a separate claim with the condemning authority for
the value of Lessee's moving or relocation expenses, provided, however, that
such separate claim shall not reduce or adversely affect the amount of Lessor's
award.
13. 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. 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 fault of the
Lessee, 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 (50%) or more of the buildings situate on
the Premises are destroyed or rendered untenantable by fire or other casualty,
Lessor shall have the option to terminate this lease effective as of the date of
such casualty and retain the insurance proceeds by giving to the Lessee within
forty-five (45) days after the happening of such casualty written notice of such
termination. If Lessor does not elect to terminate this lease, Lessor shall
repair and/or rebuild the Premises as promptly as 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.
14. 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. 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.
15. Events of Default. 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)
Exhibit (10.1)-p5
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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 dispossessed
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 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.
16. 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.
17. 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.
18. 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: Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Lessee: Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
19. 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.
20. 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
Exhibit (10.1)-p6
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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 advances 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, this 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 Lessor or other party-in-interest shall
be in derogation of any rights granted to Lessee hereunder, nor expand Lessee's
obligations hereunder.
21. 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.
22. 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.
23. 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.
Exhibit (10.1)-p7
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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 shall be construed in accordance with the
laws of the State of West Virginia.
d. If any provisions or paragraphs or part thereof of this
agreement are held invalid or unenforceable, such invalidity or unenforceability
shall not effect the validity or enforceability of the other portions hereof,
all of which provisions are hereby declared severable.
e. This lease shall 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 for filing and recording
in the Office of the Clerk of the County Commission of the county in which the
Demised Premises are located.
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.
LESSOR:
ADJ CORP.,
a West Virginia corporation
Dated: _______________, 1999 By:________________________________
Its:____________________________
LESSEE:
CHAMPION INDUSTRIES, INC.,
a West Virginia corporation
Dated: _______________, 1999 By:________________________________
Its President
Exhibit (10.1)-p8
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XXXXX XX XXXX XXXXXXXX,
XXXXXX OF XXXXXX, TO-WIT:
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1999, by _________________________,
________________________________ of ADJ Corp., a West Virginia corporation, on
behalf of said corporation.
My commission expires: ____________________________________.
-----------------------------------
NOTARY PUBLIC
[SEAL]
STATE OF WEST VIRGINIA,
COUNTY OF ______, TO-WIT:
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1999, by _________________________, President of Champion
Industries, Inc., a West Virginia corporation, on behalf of said corporation.
My commission expires: ____________________________________.
-----------------------------------
NOTARY PUBLIC
[SEAL]
Exhibit (10.1)-p9
