AGREEMENT OF LEASE COMMENCING AS OF JULY 1, 2006 BETWEEN WHITE PROPERTIES NO. II, LLC AND CHAMPION INDUSTRIES, INC. REGARDING A PORTION OF 120 HILLS PLAZA, CHARLESTON, WEST VIRGINIA.
Exhibit
10.1
AGREEMENT
OF LEASE COMMENCING AS OF JULY 1, 2006 BETWEEN WHITE PROPERTIES NO. II, LLC
AND CHAMPION INDUSTRIES, INC. REGARDING A PORTION OF 000 XXXXX XXXXX,
XXXXXXXXXX, XXXX XXXXXXXX.
THIS
LEASE, Made and entered into in duplicate this 27th day of June, 2006, by and
between WHITE
PROPERTIES NO. II, LLC, a
West
Virginia limited liability company, party of the first part, hereinafter
referred to as "Lessor", and CHAMPION
INDUSTRIES, INC., a
West
Virginia corporation, party of the second part, hereinafter referred to as
"Lessee".
NOW,
THEREFORE, THIS AGREEMENT WITNESSETH: That for and in consideration of the
undertakings and agreements of the Lessee hereinafter set out and subject to
the
terms and provisions hereinafter contained, the Lessor does hereby let, lease
and demise unto the Lessee and the Lessee does hereby accept such let, lease
and
demise of all those certain premises containing 22,523 square feet, more or
less, in Lessor’s Building (formerly occupied by Xxxx Department Store) situate
at 000 Xxxxx Xxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx, which premises are outlined
in
blue on Annexus A, all of which may hereinafter be referred to as the “Demised
Premises”, “Leased Premises” or “Premises”, together with the nonexclusive right
to use in common with the Lessor and all others that the Lessor has heretofore
and may hereafter grant the right of user the portions of the Lessor’s Parking
Lot that are designated for parking use in the plan attached to this lease
as
Annexus B, subject to reasonable rules and regulations covering the use of
Lessor’s Parking Lot as Lessor may from time to time promulgate and communicate
to Lessee in writing, subject, however, to Lessor’s right to prescribe from time
to time areas in Lessor’s Parking Lot that Lessee’s employees, agents,
contractors, customers, representatives and visitors may not park (“Lessor’s
Parking Lot”), all of which may hereinafter be referred to as the “Nonexclusive
Demised Premises”, “Nonexclusive Leased Premises” or “Nonexclusive
Premises”.
Lessor’s
Property means Lessor’s Building, the separate tax lot or parcel of land on
which Lessor’s Building is located and all other improvements that are located
on that parcel of land, but not Lessor’s Parking Lot.
1. INITIAL
TERM:
The
initial term of this lease is for a period of five (5) years beginning at 12:01
a.m. on July 1, 2006, and terminating at 12:00 p.m. on June 30,
2011.
Lessor
grants Lessee the right to enter the Leased Premises prior to said beginning
date for the permissive purposes of installing its fixtures and preparing the
Premises for its occupancy (but not for any other purposes, e.g., the purpose
of
doing business), in which event, Lessee shall be responsible for all utility
charges to the Premises. If the Lessee shall have occupied the Leased Premises
for any purpose other than installing its fixtures and preparing the Premises
for its occupancy, e.g., for the purpose of doing business, prior to said
beginning date, the term of this lease shall be increased to cover said
additional days and rent for that period shall be paid on a proportionate basis,
i.e., $322.00 per day, and Lessee shall comply with all other costs, charges
and
obligations placed on it during the initial term hereof for said additional
days.
Lessor
shall not be liable to Lessee for any of Lessee's business losses occasioned
by
any delay in delivering possession of the Premises.
2. RENTAL:
During
the initial term of this lease, Lessee shall pay to Lessor, at the address
set
forth in paragraph 22, a total rental of Five Hundred Seventy-Nine Thousand
Nine
Hundred Sixty Dollars ($579,960.00) payable without demand in monthly
installments of Nine Thousand Six Hundred Sixty-Six Dollars ($9,666.00) each,
in
advance, beginning on July 1, 2006, and continuing thereafter on the first
day
of each succeeding calendar month until said sum of Five Hundred Seventy-Nine
Thousand Nine Hundred Sixty Dollars ($579,960.00) has been fully paid. All
rental and all other sums of money, however described, payable to Lessor
pursuant to this lease shall be paid without setoff, recoupment, counterclaim
or
deduction.
3. EXTENSION
TERMS:
If the
Lessee shall have kept and performed each and all of its covenants and
conditions, it shall have the right to extend this lease for three (3)
consecutive terms, the first extension term for three (3) years and the second
and third extension terms for five (5) years each, said first extension term
beginning at the expiration of the initial term hereof, i.e., at 12:00 midnight
on June 30, 2011, and terminating at 12:00 midnight on June 30, 2014, said
second extension term beginning at the expiration of the first extension term,
i.e., at 12:00 midnight on June 30, 2014, and terminating at 12:00 midnight
on
June 30, 2019, and said third extension term beginning at the expiration of
the
second extension term, i.e., at 12:00 midnight on June 30, 2019, and terminating
at 12:00 midnight on June 30, 2024; provided that at least one hundred eighty
(180) days prior to the expiration of the initial term and at least one hundred
eighty (180) days prior to the expiration of the said first and second extension
terms, if exercised as aforesaid, the Lessee notifies the Lessor, in writing,
of
its election so to do, and all covenants and agreements herein agreed to be
kept
and performed by Lessee shall continue throughout each such extension term,
if
exercised as aforesaid, except rental. It shall be a condition of Lessee's
right
to exercise the option to extend herein that Lessee is in compliance with all
the terms and conditions of this lease both at the time of Lessee's exercise
of
this option and at the time the extension term is scheduled to commence; and
this condition may be waived by Lessor at its sole discretion and may not be
used by Lessee as a means to negate the effectiveness of Lessee's exercise
of
this option.
If
the
Lessee exercises its right to extend this lease, as aforesaid, then the Lessee
shall pay to Lessor rental as follows:
Rental
for the First Extension Term:
For
the
period July 1, 2011, through June 30, 2014, a total rental of Three Hundred
Seventy-One Thousand Six Hundred Twenty-Eight Dollars ($371,628.00) payable
in
monthly installments of Ten Thousand Three Hundred Twenty-Three Dollars
($10,323.00) each, in advance, beginning on July 1, 2011, and continuing
thereafter on the first day of each succeeding calendar month until said sum
of
Three Hundred Seventy-One Thousand Six Hundred Twenty-Eight Dollars
($371,628.00) has been fully paid.
Rental
for the Second Extension Term:
For
the
period July 1, 2014, through June 30, 2016, a total rental of Two Hundred
Forty-Seven Thousand Seven Hundred Fifty-Two Dollars ($247,752.00) payable
in
monthly installments of Ten Thousand Three Hundred Twenty-Three Dollars
($10,323.00) each, in advance, beginning on July 1, 2014, and continuing
thereafter on the first day of each succeeding calendar month until said sum
of
Two Hundred Forty-Seven Thousand Seven Hundred Fifty-Two Dollars ($247,752.00)
has been fully paid; and for the period July 1, 2016, through June 30, 2019,
a
total rental of Four Hundred Five Thousand Three Hundred Ninety-Six Dollars
($405,396.00) payable in monthly installments of Eleven Thousand Two Hundred
Sixty-One Dollars ($11,261.00) each, in advance, beginning on July 1, 2016,
and
continuing thereafter on the first day of each succeeding calendar month until
said sum of Four Hundred Five Thousand Three Hundred Ninety-Six Dollars
($405,396.00) has been fully paid.
Rental
for the Third Extension Term:
For
the
period July 1, 2019, through June 30, 2021, a total rental of Two Hundred
Seventy Thousand Two Hundred Sixty-Four Dollars ($270,264.00) payable in monthly
installments of Eleven Thousand Two Hundred Sixty-One Dollars ($11,261.00)
each,
in advance, beginning on July 1, 2019, and continuing thereafter on the first
day of each succeeding calendar month until said sum of Two Hundred Seventy
Thousand Two Hundred Sixty-Four Dollars ($270,264.00) has been fully paid;
and
for the period July 1, 2021, through June 30, 2024, a total rental of Three
Hundred Eighty-Eight Thousand Five Hundred Twelve Dollars ($388,512.00) payable
in monthly installments of Ten Thousand Seven Hundred Ninety-Two Dollars
($10,792.00) each, in advance, beginning on July 1, 2021, and continuing
thereafter on the first day of each succeeding calendar month until said sum
of
Three Hundred Eighty-Eight Thousand Five Hundred Twelve Dollars ($388,512.00)
has been fully paid.
This
is a
lease for a term and not a lease from year to year or month to month.
Any
holding over by Lessee or retention of the Demised Premises beyond the initial
term of this lease or extension terms of this lease, if exercised as aforesaid,
shall not be construed as renewing or extending this lease in any manner
whatsoever, but it may, at the option of the Lessor, be construed as creating
a
tenancy from month to month, at a monthly rental equal to one hundred
twenty-five percent (125%) of the monthly rental Lessee was paying when the
Lessee's term expired, or extension term expired, if exercised as aforesaid,
payable monthly, in advance, and on the same other terms herein contained
insofar as applicable. This provision does not give Lessee any right to hold
over.
It
is
hereby witnessed, unless in this lease specifically to the contrary provided,
that this lease as between Lessor and Lessee is on an absolute net basis to
the
Lessor, the Lessor being entitled to receive the aforesaid monthly rental as
an
absolute net to Lessor.
4. USE
OF THE PREMISES:
(a) Printing
Facility Use and Restrictions on Use. The Demised Premises shall be used for
the
purpose of office products, office furniture, mail center, data processing
or
print on demand printing facility and of furnishing services incidental thereto
and for no other purpose without the written consent of Lessor first had and
obtained which consent shall not be unreasonably withheld. Lessee agrees that
it
will not use or occupy said Premises or permit the same to be used or occupied
for any use, purpose or business deemed hazardous or deleterious by Lessor
on
account of fire or otherwise; that it will not do, use or permit upon or in
said
Premises anything that will invalidate any policy or policies of insurance
now
or hereafter carried on said building, or that may be dangerous to life or
limb;
that it will not in any manner deface or injure said building or any part
thereof, or overload the floors of the Demised Premises; that it will keep
all
of the sidewalks abutting the Leased Premises free and clear of all obstruction,
foreign matter, ice and snow as the same may from time to time accumulate;
that
it will keep all trash and garbage hauled away from the Demised Premises as
the
same accumulates, and will keep the Premises in a clean and sanitary condition;
that it will not permit any objectionable or loud noises or odor to escape
or be
emitted from said Premises, or do or permit anything to be done thereon in
any
way tending to create a nuisance; and that it will comply with all governmental
and health laws, ordinances and police and fire department requirements and
regulations respecting said Premises and the use of said Premises, now in force
or which may hereafter be in force during the term of this lease, including
without limiting the generality of the foregoing compliance with the
Occupational Safety and Health Act of 1970, as said Act may be amended from
time
to time, and all standards, rules and regulations promulgated thereunder, now
in
force or which may hereafter be in force during the term of this lease. Lessor
represents to the Lessee that to the best of its knowledge and belief the Leased
Premises as constructed and completed will comply with Title III of the
Americans with Disabilities Act of 1990, X.X.000-000 ("xxx XXX Xxx"), as now
in
force. The Lessee agrees to comply with the ADA Act as said Act may be amended
from time to time, and all standards, rules and regulations promulgated
thereunder, now in force or which may hereafter be in force during the term
of
this lease, as the same pertain to both the use of the Premises as well as
the
condition of the Premises, and indemnify, defend and hold harmless the Lessor
for any and all loss, cost, claim or liability of every type and character
that
the Lessor incurs as a consequence of Lessee's breach of, purported breach
of or
noncompliance with the ADA Act, Lessee's obligations under this sentence and
the
following provision of this subparagraph (a) of paragraph 4 as a consequence
of
the Lessee's occupancy or use of the Premises or the condition of the Premises.
Lessee will be responsible to insure that any and all alterations or changes
it
makes in the Premises or its use in the Premises comply with the ADA Act and
will further be responsible for any "path of travel" costs that result from
alterations the Lessee makes. Further, the Lessee will not make any change
in
the use of the Premises so that such change of use will make the Premises a
"place of public accommodation" pursuant to the ADA Act. Lessor will not be
responsible for any unlawful discrimination by the Lessee nor will the Lessor
be
responsible for any change in the Premises to accommodate disabled employees
of
the Lessee, it being understood and agreed that the Lessee is responsible for
making all such physical changes in the Premises required to accommodate its
disabled employees. If any changes in the Premises are required during the
term
hereof to be made to comply with the ADA Act, the Lessor will cooperate with
Lessee in all its efforts to make the building to so comply. Further, Lessee
covenants never to permit the Leased Premises to remain unoccupied and unused
for the purposes authorized in this agreement for a period of thirty (30)
consecutive days, the Leased Premises being available for such use during the
whole of said period. Lessee hereby releases the Lessor from any claims or
actions arising out of the Lessee's use of the Premises.
(b) Lessee's
Responsibility Regarding Hazardous Substances.
(1) Hazardous
Substances. The term "Hazardous Substances", as used in this lease, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer
or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now
or
hereafter enacted or promulgated by any governmental authority.
(2) Lessee's
Restrictions. Except as may be used in the ordinary course of the Lessee’s
business and in compliance with all applicable laws and regulations, Lessee
shall not cause or permit to occur:
(A) Any
violation of any federal, state or local law, ordinance, or regulation now
or
hereafter enacted, related to environmental conditions on, under or about the
Premises and the Nonexclusive Premises, or arising from Lessee's use or
occupancy of the Premises and Nonexclusive Premises, including, but not limited
to, soil and ground water conditions; or
(B) The
use,
generation, release, manufacture, refining, production, processing, storage
or
disposal of any Hazardous Substance on, under or about the Premises and
Nonexclusive Premises, or the transportation to or from the Premises and
Nonexclusive Premises of any Hazardous Substance.
(3) Environmental
Cleanup.
(A) Lessee
shall, at Lessee's own expense, comply with all laws regulating the use,
generation, storage, transportation or disposal of Hazardous Substances
("Laws").
(B) Lessee
shall, at Lessee's own expense, make all submissions to, provide all information
required by, and comply with all requirements of all governmental authorities
(the "Authorities") under the Laws.
(C) Should
any Authority or any third party demand that a cleanup plan be prepared and
that
a cleanup be undertaken because of any deposit, spill, discharge or other
release of Hazardous Substances that occurs during the term of this lease,
at or
from the Premises, or which arises at any time from Lessee's use or occupancy
of
the Premises and Nonexclusive Premises, then Lessee shall, at Lessee's own
expense, prepare and submit the required plans and all related bonds and other
financial assurances; and Lessee shall carry out all such cleanup
plans.
(D) Lessee
shall promptly provide all information regarding the use, generation, storage,
transportation or disposal of Hazardous Substances that is requested by Lessor.
If Lessee fails to fulfill any duty imposed under this subparagraph (3) within
a
reasonable time, Lessor may do so; and in such case, Lessee shall cooperate
with
Lessor in order to prepare all documents Lessor deems necessary or appropriate
to determine the applicability of the Laws to the Premises and Nonexclusive
Premises and Lessee's use thereof, and for compliance therewith, and Lessee
shall execute all documents promptly upon Lessor's request. No such action
by
Lessor and no attempt made by Lessor to mitigate damages under any Law shall
constitute a waiver of any of Lessee's obligations under this subparagraph
(3).
(E) Lessee's
obligations and liabilities under this subparagraph (3) shall survive the
expiration or termination of this lease.
(4) Lessee's
Indemnity.
(A) Lessee
shall indemnify, defend and hold harmless Lessor, the manager of the property,
and their respective officers, directors, beneficiaries, shareholders, partners,
agents and employees, from all fines, suits, procedures, claims and actions
of
every kind, and all costs associated therewith (including attorney's and
consultant's fees) arising out of or in any way connected with any deposit,
spill, discharge or other release of Hazardous Substances that occurs during
the
term of this lease, at or from the Premises, or which arises at any time from
Lessee's use or occupancy of the Premises, or from Lessee's failure to provide
all information, make all submissions, and take all steps required by all
Authorities under the Laws and all other environmental laws.
(B) Lessor’s
Representations Regarding Hazardous Substances.
Lessor
hereby represents and warrants that to the best of Lessor’s knowledge no
“Hazardous Substances”, as defined hereinabove, have been discharged, dispersed,
released, stored, treated, generated, disposed of, or allowed to escape on
the
Premises or Nonexclusive Premises nor shall Lessor, its employees or agents
allow or cause any Hazardous Substances to be discharged, dispersed, released,
stored, treated, generated, disposed of, or allowed to escape on the Premises
or
Nonexclusive Premises. The Lessor 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 or Nonexclusive Premises that were discharged,
dispersed, released, stored, treated, generated or disposed of, or allowed
to
escape on the Premises or Nonexclusive Premises (i) prior to the commencement
of
this lease or (ii) by the Lessor, its employees, agents or invitees. The Lessor
shall be solely responsible for, and shall indemnify and hold harmless the
Lessee, its officers, directors, beneficiaries, shareholders, partners, agents,
employees, successors and assigns from and against all fines, suits, procedures,
claims and actions of every kind, and all costs associated therewith (including
attorney’s and consultant’s fees), arising out of or in any way connected with
any use, generation, storage, release, threatened release, discharge, disposal,
or presence of Hazardous Substances in, on, under or about the Premises or
Nonexclusive Premises prior to the commencement of this lease, or at any time
by
the Lessor, its employees or agents, or from Lessor’s failure to provide all
information, make all submissions, and take all steps required by all
Authorities under the laws and all other environmental laws.
(C) Lessor’s
and Lessee's obligations and liabilities under the above subsections (A) and
(B)
shall survive the expiration or termination of this lease.
5. UTILITIES,
PUBLIC SERVICES, REAL ESTATE TAXES, ETC.:
5.1 The
Lessee covenants that it will furnish and pay for all gas, water, heat, air
conditioning, light and power necessary for the Lessee's enjoyment of its
leasehold estate. The Lessee shall pay for its sanitary sewer charge,
incinerator fee and cost of trash and refuse removal.
5.2 During
each extension term of this lease that is exercised, the Lessee covenants and
agrees to pay to the Lessor twenty-eight and fifteen one hundredths percent
(28.15%), as to Lessor’s Property, and sixteen and sixty-six one hundredths
percent (16.66%), as to Lessor’s Parking Lot, of all (i) ad valorem real estate
taxes, all fire protection and service fees or charges and property and
liability insurance costs, including by way of illustration and not of
limitation, premiums, surcharges, deductibles and taxes (the "Insurance Costs"),
for all insurance coverages carried by Lessor for Lessor's Property and Lessor's
Parking Lot, and (ii) cost of repair and maintenance of all rights of way and
service drives connecting the Lessor's Property and the Lessor's Parking Lot
to
Xxxxxxx Street and the Private Street abutting McDonald's Restaurant, Weight
Watchers and K-Mart connecting Lessor's Building and Lessor's Parking Lot to
Xxxxxxx Street, and of the cost of illumination (including cost of electricity
and repair and replacement of electric wiring and lighting fixtures), repair
and
maintenance of asphaltic concrete, striping, snow removal and cleaning from
time
to time of Lessor's Parking Lot (collectively referred to as "Operating
Expenses"), which may be taxed, charged, assessed, imposed, incurred or agreed
to by Lessor upon the whole of Lessor's Property and Lessor's Parking Lot during
the term of this lease, beginning with the 2011 ad valorem real estate taxes
which will attach as a lien on July 1, 2010, the July 1, 2010 through June
30,
2011 fire protection or service fee or charge and the December 1, 2010 to
December 1, 2011 insurance policies; however, said beginning and ending year
of
the lease extension term taxes, service fee or charge, Insurance Costs, Lessor's
Parking Lot costs and rights of way and service drives and Private Street costs
and repairs (Operating Expenses) shall be prorated between Lessor and Lessee,
e.g., the Lessee shall pay 6/12ths of the 2011 ad valorem real estate taxes,
0/12th of the 2010-11 fire protection or service fee or charge, 5/12ths of
the
2010-11 insurance policies premiums and 6/12ths of the 2011 calendar year
Lessor's Parking Lot, rights of way and service drives and Private Street costs,
and the Lessor shall pay the balance. Lessee agrees to pay to Lessor as an
additional charge each month an administrative charge in an amount equal to
fifteen percent (15%) of all of the foregoing Operating Expenses set forth
in
this subparagraph 5.2. The sum of said Operating Expenses and the fifteen
percent (15%) administrative charge arrived at as aforesaid as of the date
hereof approximates Two Thousand Five Hundred Eighty-Three Dollars ($2,583.00)
per month and Lessee shall pay such sum to Lessor on the first (1st) day of
each
month in advance during each extension term of this lease and holding over
hereunder until such time as Lessor notifies Lessee of a different monthly
sum.
At least once each year the estimated payments shall be credited or debited
to
the year's actual Operating Expenses and the parties shall settle this account
without interest accordingly - refund by Lessor if Lessee has overpaid or
additional payment by Lessee if it has underpaid. Lessee covenants and agrees
to
reimburse Lessor, on demand, for all increase, if any, in Lessor's insurance
premium for Lessor's Building of which the Leased Premises are a part, due
to
Lessee's use of or failure to occupy the Premises. Lessor shall provide Lessee
with a statement from its agent setting forth (i) the amount of the Lessor's
insurance premium (for the above set forth insurance coverages) based on
Lessee's use or failure to occupy, and (ii) the amount of Lessor's insurance
premium as aforesaid if Lessee's use of or failure to occupy the Leased Premises
was not prohibited by Lessor's insurance policy or policies, as the case may
be.
Lessee agrees to pay any and all other public or private services to the
Premises and Lessor's Parking Lot, whether a fee, charge, tax, lien or
otherwise, including without limiting the generality of the foregoing any
additional fire fee, charge or tax levied on account of the Leased Premises
and/or Lessee's occupancy of the Leased Premises, e.g., per tenant fee. In
addition, during each extension term of this lease that is exercised, Lessee
agrees to pay to Lessor all sums of any business and occupation tax on the
rental and other monies payable to Lessor pursuant to this lease or other tax,
whether similar or dissimilar, substituted for and as a replacement of business
and occupation tax levied by the State of West Virginia or any other
governmental body, including by way of illustration and not of limitation the
West Virginia business franchise tax. Lessee alone shall be responsible for
payment of and pay Lessor on demand any type of tax, excise or assessment;
regardless of label or whether in the form of a rental tax, gross receipts
tax,
sales tax, business or occupation tax, use assessments, privilege tax, franchise
tax, or otherwise, except any tax, excise or assessment which in substance
is a
net income or franchise tax that is based solely on Lessor's net income; levied,
assessed or imposed at any time by any governmental authority upon or against
the Demised Premises, Lessor's Parking Lot, the use or occupancy of the Demised
Premises and/or Lessor's Parking Lot, the rents and other charges payable by
Lessee to Lessor, or otherwise with respect to the landlord-tenant relationship.
All sums payable to the Lessor by the Lessee pursuant to the terms of this
subparagraph 5.2 are to be treated as additional rent reserved by the Lessor
and
paid without setoff, recoupment, counterclaim or deduction.
6. ALTERATIONS:
By
executing this lease, Lessor evidences its approval of the plans, specifications
and working drawings of the initial build-out plans of Lessee (Annexus C).
Thereafter, Lessee agrees to make no alterations, erections, additions, or
improvements in or to the Demised Premises and not to place any fixtures in
or
on the Demised Premises without first obtaining the written consent of the
Lessor, which consent shall not be unreasonably withheld. Lessor's approval
of
the plans, specifications and working drawings for Lessee's alterations shall
create no responsibility or liability on the part of Lessor for their
completeness, design sufficiency or compliance with all laws, rules and
regulations of all governmental agencies or authorities. Lessee may remove
all
fixtures it installs or places in or attaches to the Demised Premises, which
removal shall be accomplished so as not to damage the Demised Premises and
shall
be completed prior to the termination of this lease. All property remaining
within the Leased Premises on the day next following the day this lease expires
or terminates shall be deemed to be abandoned and the Lessor may dispose of
such
as Lessor chooses and all reasonable expense incurred by Lessor in disposing
of
such abandoned property within thirty (30) days following termination or
expiration of this lease shall be repaid to Lessor by Lessee within thirty
(30)
days following the mailing of a written statement of such by Lessor to Lessee.
7. SIGNS:
Lessee
agrees not to attach, inscribe, paint or place any signs or structures to or
upon the exterior of said building or within any window or door of the Leased
Premises without first obtaining the written approval of Lessor, which approval
shall not be unreasonably withheld. Anything herein contained to the contrary
notwithstanding, Lessee’s signage shall not exceed its proportionate share of
signage for Lessor’s Building under the City of Charleston zoning ordinance. Its
proportionate share shall be determined by multiplying the total signage square
footage permitted for the Lessor’s Building by a fraction, the numerator shall
be the total square footage of the Leased Premises and the denominator shall
be
the total square footage in the Lessor’s Building. Any and all signs placed on
the Leased Premises by Lessee shall be maintained in compliance with all
applicable governmental laws and regulations, and Lessee shall be responsible
to
Lessor for any damage caused by installation, use or maintenance of its signs.
At the expiration or earlier termination of this lease, Lessee shall remove
all
of its signs and shall repair any damages incidental to this removal, which
covenant shall survive the expiration or termination of this lease.
8. REPAIRS
AND REPLACEMENTS:
Lessee
agrees to make all repairs and replacements to the Demised Premises and
Nonexclusive Demised Premises as may be made necessary by the willfulness,
fault
or neglect of Lessee or its agents, employees, invitees, contractors or
representatives, and the Lessor agrees to be responsible for structural repairs
to the roof, front wall, rear wall and exterior side walls of said Premises
not
occasioned by the willfulness, fault or neglect of Lessee or Lessee's agents,
employees, invitees, contractors or representatives. Lessee further agrees
to
keep the interior of the Demised Premises (including by way of specification
and
not of limitation heating and air conditioning equipment, plumbing fixtures,
water, sewer and gas lines, lighting fixtures and electric wiring and equipment)
in a good and proper state of repair (including replacements when and as prudent
building management practices deem such should be replaced) at all times and
to
surrender the Demised Premises at the expiration of this lease with the interior
thereof in good repair, work order and condition, damage by fire and other
unavoidable casualty, condemnation and appropriation excepted. It is further
witnessed that the Lessee is responsible for repairs and replacements of glass,
doors and windows, including the encasement frames of and appurtenances to
the
glass, doors and windows. It is further understood and agreed that Lessee takes
the Demised Premises and Nonexclusive Demised Premises in its present condition
and that Lessor is to make no repairs, replacements or alterations to the
Demised Premises and Nonexclusive Demised Premises at any time except as it
has
specifically agreed to do in this paragraph.
9. FIRE
PREVENTION SYSTEMS, ETC.:
(a) If
the
National Board of Fire Underwriters or any local Board of Fire Underwriters
or
Insurance Exchange (or other bodies hereafter exercising similar functions)
shall require or recommend the installation of fire extinguishers, a "sprinkler
system," fire detection and prevention equipment (including, but not limited
to,
smoke detectors and heat sensors), or any changes, modifications, alterations,
both structural and nonstructural, or the installation of additional sprinkler
heads or other equipment for any reason attributable to Lessee's use of the
Premises or alterations performed by Lessee; or
(b) If
any
law, regulation, or order or if any bureau, department, or official of the
Federal, State, and/or Municipal Governments shall require or recommend the
installation of fire extinguishers, a "sprinkler system", fire detection and
prevention equipment (including but not limited to, smoke detectors and heat
sensors), or any changes, modifications, alterations (both structural and
nonstructural, or the installation of additional sprinkler heads or other
equipment for any existing sprinkler system, fire extinguishing system, and/or
fire detection system for any reason attributable to Lessee's use of the
Premises or alterations performed by Lessee; or
(c) If
any
such installations, changes, modifications, alterations, sprinkler heads, or
other equipment become necessary to prevent the imposition of a penalty, an
additional charge, or an increase in the fire insurance rate as fixed by said
Board or Exchange, from time to time, or by any fire insurance company as a
result of the use of the Premises,
then
Lessor shall, at Lessor's sole cost and expense, promptly make such
installations within the Premises and make such changes, modifications,
alterations, both structural and nonstructural, or the installation of
additional sprinkler heads or other required or recommended
equipment.
10. LESSOR'S
RIGHT TO EXAMINE PREMISES:
Lessee
agrees to allow the Lessor's agents reasonable free access to the Demised
Premises during reasonable hours for the purpose of examining the same, to
ascertain if the same are in good repair, to make repairs or alterations to
the
Demised Premises and to other portions of Lessor's building, and to exhibit
the
same to prospective tenants; provided, however, Lessor gives Lessee at least
twenty-four (24) hours’ notice and the use of the Demised Premises by Lessee is
not unreasonably interfered with. Lessee agrees that Lessor shall have the
right
to immediate free access to the Demised Premises for repairs to the balance
of
Lessor's building where an emergency exists and Lessor shall be the sole judge
of the existence of an emergency.
11. LESSOR
NOT LIABLE FOR DEFECTS:
In the
absence of willfulness on its part or breach of any of its agreements or
covenants under this lease, Lessor shall not be liable to Lessee or third
parties for any damage or injury to Lessee or third parties or the property
of
either occasioned by or arising out of any defect in or condition of the
Premises or the Nonexclusive Demised Premises, now existing or hereafter
existing, or occasioned by fire, water, explosion, wind, snow, ice or other
casualty, unless said defect is caused by Lessor's gross negligence.
12. INSURANCE
REQUIREMENTS AND INDEMNIFICATION:
12.1 All
insurance policies covering the obligations of Lessee under this lease shall
be
endorsed to provide the Lessor with the same notice of cancellation, material
change, termination or nonrenewal as is provided to the Lessee in those
policies, but not less than thirty (30) days' prior written notice by certified
or registered mail, return receipt requested.
All
insurance policies required by this lease shall be endorsed to provide Lessor
with thirty (30) days' written notice, following procedures required by West
Virginia Department of Insurance, before such insurance can be cancelled as
to
Lessor because of a breach of warranty by the policy holder.
Lessee
agrees to deliver to Lessor a true copy of any notice of cancellation, material
change, termination or nonrenewal Lessee receives within five (5) days following
receipt of any such notice by Lessee.
The
Lessee agrees to obtain and provide on or before the commencement of the initial
term of this lease and keep in force at all times thereafter, the following
insurance and other coverages with respect to the Leased Premises:
Damage
Claims:
(a) Lessee
shall carry Commercial General Liability insurance with the coverage at least
as
broad as Insurance Services Office ("ISO") Commercial General Liability coverage
"occurrence" form CG 00 01 10 01 or its equivalent, without modification, and
which may be written on a manuscript form, with limits of One Million Dollars
($1,000,000.00) combined single limit per occurrence for bodily injury, personal
injury and property damage.
The
following amendments and endorsements to coverage shall be
provided:
(1) The
policy general aggregate shall be amended to apply separately to the Demised
Premises and Nonexclusive Demised Premises, using amendatory language at least
as broad as ISO CG 25 04, without modification.
(2) Lessee's
insurance shall contain an endorsement providing coverage at least equal to
that
of ISO Form 20 26, Additional Insured - Designated Person or Organization,
or
its equivalent, without modification, which shall name the Lessor Parties as
an
additional insured as respects all covered claims arising out of the performance
of this Lease of Premises and shall be primary insurance as respects any such
claims arising out of the performance of this Lease of Premises. Any insurance
maintained by the Lessor Parties shall be excess, secondary and non-contributing
to Lessee's insurance.
(b) Lessee
shall carry at least One Million Dollars ($1,000,000.00) excess or umbrella
liability insurance excess of the Commercial General Liability insurance
described in subparagraph (a), above.
(c) Lessee
shall carry Workers' Compensation insurance, as required by the law of the
State
of West Virginia, covering all employees of Lessee who perform any finish work
or any repair or alteration authorized by this lease or consented to by Lessor
and all other employees of Lessee with respect to whom death or bodily injury
claims could be asserted against Lessee.
(d) Unless
covered under existing insurance policies, before undertaking any alterations,
additions, improvements or construction, Lessee shall obtain, or cause its
sublessee to obtain, at its expense a general liability insurance policy
insuring Lessee and Lessor Parties against any liability which may arise on
account of such proposed alterations, additions, improvements or construction
on
an occurrence basis with the minimum limits set forth in this paragraph
12.
All
such
primary insurance shall be placed with insurers having a Best's rating of no
less than A:VII. All primary insurers shall be admitted to or licensed with
the
Department of Insurance of the State of West Virginia and shall use forms filed
with and approved by the insurance regulator of the State of West
Virginia.
Lessee
shall be responsible for any deductible amount under any coverage or insurance
coverages required by this lease. Lessee shall provide coverage and pay any
increased premium resulting from Lessee's use of the Leased Premises and
Nonexclusive Leased Premises.
Upon
reasonable request, Lessee shall provide the Lessor with a certified true copy
of all insurance policies providing coverage required by this lease. Lessor
may
accept, as an alternative, XXXXX form 25 or comparable-type certificates of
insurance, prepared and signed by an employee of the insurer, describing in
detail all property and liability insurance required by this lease with all
special endorsements required to be provided for the benefit of Lessor attached
thereto, including by way of illustration and not of limitation endorsements
adding the Lessor Parties as an additional insured and agreement by the
insurance company to waive subrogation rights against the Lessor Parties (see
paragraph 13, below) shall be delivered to Lessor at least ten (10) days prior
to the time such insurance is first required to be carried by Lessee and upon
renewals not less than ten (10) days prior to the expiration of any such
policy.
For
the
purposes of this paragraph 12.1, "Lessor Parties" shall mean:
(a) Lessor,
(b) any
lender whose loan is secured by a lien against the Leased Premises,
(c) Leased
Premises Manager, and
(d) the
respective affiliates, subsidiaries, successors, assigns, heirs, officers,
directors, shareholders, partners, members, employees, agents, contractors
and
representatives of Lessor, Lender and Leased Premises Manager.
If
Lessee
fails to provide and maintain insurance as required in this lease, the Lessor
may, at its option, do so and xxxx the Lessee for the premium. Such premiums
shall be immediately due and payable to the Lessor by the Lessee.
No
insurance coverage shall contain a deductible or self-insured retention in
excess of One Thousand Dollars ($1,000.00) without prior written consent of
Lessor. All deductibles and/or retentions shall be paid by, assumed by, for
the
account of, and at the Lessee's sole risk.
12.2 Lessee
hereby agrees to reimburse, indemnify, save harmless and defend, including
paying or causing to be paid the reasonable fees and expenses of counsel
reasonably selected by Lessor, the Lessor from all claims, loss, damage or
injury to persons and property arising out of, from or incident to Lessee's
performance of this Lease of Premises, whether or not resulting from the
negligence of or failure to comply with the terms of this lease by Lessee,
or
its employees, agents, invitees, contractors or representatives.
Lessee
shall reimburse Lessor for any and all damages suffered by the Lessor as a
consequence of the negligence, fault or willfulness of Lessee and Lessee's
agents, employees, invitees, representatives, independent contractors and
others.
13. SUBROGATION:
Each
party shall look first to any insurance in its favor before making any claim
against the other party (including its agents, employees, invitees, contractors
and representatives) for recovery for loss or damage resulting from fire or
other casualty, and to the extent that such insurance is in force and
collectible and to the extent permitted by law, Lessor and Lessee each hereby
releases and waives all right of recovery against the other (including its
agents, employees, invitees, contractors and representatives) or any one
claiming through or under each of them by way of subrogation or otherwise.
The
foregoing release and waiver shall not be in force if either releasors'
insurance policies contain a clause providing that such a release or waiver
shall invalidate the insurance and, also, provided that a policy that provides
that such a release or waiver shall not invalidate the insurance can be obtained
without additional premiums. Lessee hereby agrees to obtain and deliver to
the
Lessor a copy of the endorsement from the Lessee's insurance carrier clearly
indicating that the Lessee's insurance carrier has agreed to waive subrogation
rights against the Lessor.
14. ASSIGNMENT:
The
Lessee covenants for itself and its successors and assigns not to assign this
lease in whole or in part and not to sublet the Leased Premises or any part
thereof without first obtaining the written consent of the Lessor, which shall
not be unreasonably withheld. It shall be a condition to any consent to
subletting or assignment that: (i) at the time of any such proposed subletting
or assignment, Lessee shall not be in default under any of the terms, provisions
or conditions of this lease; (ii) the sublessee or assignee shall intend only
to
occupy the Premises and conduct its business therein in accordance with the
use
set forth in paragraph 4 hereof; (iii) the financial responsibility, suitability
and business character and nature of the proposed occupancy are sufficient
to
equal or exceed that of Lessee; (iv) Lessee and its assignee or sublessee shall
execute, acknowledge and deliver to Lessor a fully executed counterpart of
a
written assignment of lease or sublease, as the case may be, by the terms of
which in case of any assignment, Lessee will assign to such assignee Lessee's
entire interest in this lease, together with all prepaid rents hereunder, and
the assignee will accept said assignment and assume and agree to perform,
directly for the benefit of Lessor, all of the covenants and agreements
contained in this lease on the Lessee's part to be performed hereunder; (v)
sublessee must agree to a waiver of claims against Lessor and the sublessee's
insurer must issue waiver of subrogation rights endorsement to all policies
of
insurance carried in connection with the Leased Premises and the contents
thereof (which waiver must be in form and substance acceptable to Lessor);
and
(vi) notwithstanding any such assignment or subletting under the terms of this
paragraph, Lessee will acknowledge that, notwithstanding such assignment or
sublease and the consent of Lessor thereto, Lessee will not be released or
discharged from any liability whatsoever under this lease and will continue
liable thereon with the same force and effect as though no assignment or
sublease had been made. In the event any such proposed assignment or sublease
provides for, or Lessee otherwise receives, rent, additional rent or other
consideration in excess of that provided for in this lease, Lessee agrees that
in the event Lessor grants its consent, Lessee shall pay Lessor sixty-five
percent (65%) of the amount of such excess as it is received by or becomes
due
to Lessee. Any such consented to or unconsented to assigning or subletting
in
whole or in part shall not relieve the Lessee in any way of its obligations
hereunder. All costs incurred by Lessor in connection with any request for
consent to an assignment or other transfer, including costs of investigation
and
the reasonable fees of Lessor's counsel, up to but not exceeding the total
sum
of One Thousand Dollars ($1,000.00) for each such request, shall be paid by
Lessee to Lessor at the time a request to assign or sublet is delivered in
writing to Lessor. Lessor's consent to one assignment or sublease will not
waive
the requirement of obtaining the Lessor's consent to any subsequent assignment
or sublease. During the term hereof and all extension terms, if exercised,
and
holding over hereunder, if any, the Lessee covenants not to be adjudicated
a
bankrupt, not to file a voluntary petition in bankruptcy, not to permit a
receivership proceeding to be instituted by or against Lessee, not to permit
the
appointment of a receiver for Lessee, not to make or suffer an assignment for
the benefit of creditors and that this lease will not be rejected after filing
a
petition in bankruptcy or insolvency or for reorganization or arrangement under
Federal bankruptcy laws or State insolvency act.
15. DEFAULT
AND REMEDIES:
In the
event the Lessee assigns this lease in whole or in part or sublets the Leased
Premises or any part thereof without the written consent of the Lessor first
had
and obtained, as provided in paragraph 14; or if Lessee files a voluntary
petition in bankruptcy or if receivership proceedings are instituted by or
against Lessee, or if a receiver is appointed for Lessee, or if Lessee makes
an
assignment for the benefit of creditors, or if this lease is rejected after
filing a petition in bankruptcy or insolvency or for reorganization or
arrangement under Federal bankruptcy laws or under any State insolvency act
as
is prohibited in paragraph 14; or if Lessee shall fail to pay any rent or other
charge herein provided for or hereby required when and as the same becomes
due,
as provided in paragraphs 1, 2, 3, 4, 5, 12, 14, 15, 19 and 25, and after ten
(10) days have elapsed from demand for the payment thereof has been made in
writing by Lessor; or if Lessee uses the Premises for any use or purpose not
permitted in paragraph 4, or if Lessee does not comply with its responsibility
regarding hazardous substances as required by paragraph 4, or if Lessee does
not
comply with any governmental or health law, ordinance or police or fire
department requirement or regulation respecting said Premises, including without
limiting the generality of the foregoing, the Occupational Safety and Health
Act
and the Americans with Disabilities Act, all as required by paragraph 4, or
if
Lessee makes alterations, erections, additions or improvements or places
fixtures in the Leased Premises other than as permitted in paragraph 6, or
if
Lessee does not comply with the provisions of paragraph 7 as to signs, or if
Lessee does not make repairs and replacements to the Demised Premises or if
Lessee fails to keep the Leased Premises in a good and proper state of repair
as
required by paragraph 8, or if Lessee does not comply with the fire prevention
system requirements of paragraph 9, or if the Lessee does not permit the Lessor
to examine the Premises as required in paragraph 10, or if Lessee does not
hold
Lessor harmless and indemnify Lessor as required by paragraphs 4, 12 and 15,
or
if Lessee does not carry insurance or deliver policies or certificates as
required by and in conformance with paragraph 12, or if Lessee does not execute
any certificate or instrument as required by paragraphs 23 and 24, or if Lessee
permits or suffers any lien on the Premises in contravention to paragraph 25,
or
if Lessee shall fail to perform or observe any of the other terms, provisions
or
requirements of this instrument, and shall continue in such failure, breach
or
violation for thirty (30) days after notice in writing to perform or observe
the
same has been given by Lessor, unless such failure (default) is of such a nature
that it cannot be cured within said thirty (30) day period, in which event
a
default shall be deemed to have occurred unless Lessee shall commence the curing
of such default within said thirty (30) day period and shall thereafter
diligently and continuously prosecute the curing of such default until
completion, but in no event shall such cure period exceed sixty (60) days;
or if
Lessee fails at any time for a period of thirty (30) consecutive days to occupy
and use the Leased Premises for the purposes allowed by this agreement, the
Premises being available for such use during the whole of such period as is
provided in paragraph 4; then, and in any of such events, the Lessor may, at
its
option, terminate this lease by written notice to that effect to the Lessee,
or
it may, at its option, reenter and repossess the Demised Premises, with or
without force, for the remainder of the term of the lease and rerent or sublet
the same, in whole or in part, for the whole or any part of the unexpired term,
and any rental so obtained shall be credited first to Lessor's reasonable costs
and expenses including but not limited to attorney's fees, insurance, expenses
of reletting, subletting, repairs, brokerage fees, subdividing, alterations
or
renovations of the Leased Premises and then to the obligation of the Lessee
already accrued and thereafter accruing under the provisions of this instrument,
and Lessee shall remain liable for any deficiency.
In
the
event the lease is terminated by the Lessor as above provided, or as provided
in
paragraph 16, below, REPEATED
DEFAULT AND REMEDIES,
Lessor
shall have the right, and Lessee hereby grants it the right, to reenter the
Premises, and to have, repossess and enjoy the same as of its first and former
estate therein.
If
at any
time the Lessor has possession, or is entitled to possession of the Demised
Premises under the provisions hereof, it may shut off heat and water and any
other service from the Demised Premises, may change locks on doors and may
exercise all usual rights of proprietorship over the same.
The
Lessee agrees to indemnify the Lessor for any charge, costs, liability, or
expense, including reasonable attorney's fees, which may be imposed upon,
incurred by, or asserted against Lessor by reason of (i) any failure on the
part
of the Lessee to perform or comply with any covenant required to be performed
or
complied with by the Lessee hereunder, or (ii) the existence of this lease,
and/or their relationship of landlord and tenant. The provisions of this
paragraph shall survive the expiration or termination of this lease and all
extensions, renewals and holdovers hereunder, if any.
In
addition to the rights and remedies hereinbefore specifically given to the
Lessor, it shall in all instances have all rights and remedies afforded
landlords by the laws of the State of West Virginia.
TIME
IS
OF THE ESSENCE FOR THIS AGREEMENT.
16. REPEATED
DEFAULT AND REMEDIES:
Notwithstanding anything to the contrary set forth in this lease, if Lessee
shall fail to pay any rent or any other charge herein provided for or hereby
required when and as the same becomes due, and after five (5) days have elapsed
from demand for the payment thereof has been made in writing by Lessor, as
provided in paragraphs 1, 2, 3, 4, 5, 12, 14, 15, 19 and 25, and any such
default shall be repeated two (2) times in any period of twelve (12) consecutive
months, then, notwithstanding that such defaults shall have each been cured
by
Lessee after notice as provided in this lease, any further similar default
within said twelve (12) month period shall be deemed to be a Repeated Default
without the ability to cure.
In
the
event of a Repeated Default, Lessor, without giving Lessee any notice and
without affording Lessee an opportunity to cure the default, may terminate
this
lease forthwith without notice to Lessee and Lessor may, at its option, avail
itself of any and all remedies set forth in paragraph 15.
17. FIRE:
It is
understood and agreed that in case the improvements on the Demised Premises
shall be destroyed or so damaged by fire or other cause as to render it unfit
for occupancy or use, the Lessor shall have the right to elect whether it will
rebuild or repair the said building in a condition similar to its condition
prior to such casualty and to continue this lease in full force and virtue,
or
whether it will elect to terminate the lease; such election to be made in
writing within thirty (30) days after the loss. If the Lessor shall elect to
repair said Premises, then it shall also notify the Lessee as to the estimated
time required for such repairs, and if it is estimated that said building cannot
be repaired within a period of one hundred fifty (150) days, then the Lessee
shall have the option of terminating this lease by giving the Lessor notice
in
writing within thirty (30) days after receipt of notice of Lessor's election
as
to the repair of the Premises. During the time said Premises shall be unfit
for
occupancy, the rent hereby reserved, or a fair and just proportion thereof,
according to the nature and extent of the damage sustained, shall be suspended
and cease to be payable until the Leased Premises shall be rebuilt or repaired
for occupation and use, or this lease terminated and ended by the Lessor or
the
Lessee as herein provided. If the Lessor is not insured for loss of rental
income coverage, then it is agreed that no suspension or ceasing of rent shall
be required if such unfitness for occupancy is caused by the fault, negligence
or willfulness of the Lessee.
18. EMINENT
DOMAIN:
If the
whole of the Demised Premises and Nonexclusive Demised Premises or any part
thereof is taken under the power of eminent domain or conveyed under the threat
of the power of eminent domain, all sums payable thereunder shall belong to
and
be paid to the Lessor, the Lessee having no right therein, except Lessee shall
be entitled to all sums separately payable to the Lessee for its claim for
compensation or damages based upon its moving costs and loss of business.
Further, if the whole of the Demised Premises and Nonexclusive Demised Premises
or such part of the Demised Premises and Nonexclusive Demised Premises so as
to
substantially interfere with Lessee's use of the Demised Premises and
Nonexclusive Demised Premises is taken under the power of eminent domain, or
conveyed under the threat of the power of eminent domain, then the Lessee may
terminate this lease by giving the Lessor at least thirty (30) days' written
notice prior to such termination date; provided, however, if no notice is given
or if the taking is not substantial (and it shall be conclusively presumed
to be
not substantial if a partial taking and no notice is given) then in any such
event there shall be no abatement of rent reserved hereunder and this lease
shall continue in all respects as to the balance of said property. The notice
provided for above may be given at any time not later than thirty (30) days
next
following physical possession of the Premises and Nonexclusive Premises being
taken, the judgment in a condemnation proceeding becoming final or from the
date
notice by the Lessor is given the Lessee of its voluntary conveying, whichever
occurs first and as the case may be.
19. INTEREST
AND OVERDUE PAYMENT CHARGE:
Any
payment not promptly made by Lessee to the Lessor shall bear interest from
the
date due at two percentage (2%) points per annum above the prevailing prime
interest rate then charged by United Bank, Inc., of Charleston, West Virginia,
to its most credit worthy customers, but not in excess of any applicable
interest rate ceiling, or eight percent (8%) per annum, whichever is the
greater, during the period said payment remains unpaid. Any payment not made
within five (5) days of its due date by Lessee to Lessor shall, in addition
to
interest, bear an overdue payment charge equal to five percent (5%) of the
amount due plus a service fee of Fifteen Dollars ($15.00) per day for each
day
said payment remains unpaid after its due date to reimburse Lessor for its
additional administrative costs. A payment is made on the day it is delivered
to
Lessor.
20. WAIVER:
A waiver
by the Lessor of any default, omission or violation by Lessee shall not be
construed as a waiver of any subsequently occurring default, omission or
violation.
If
at any
time hereafter a dispute shall arise between Lessor and Lessee with respect
to
any amount of money to be paid by either of them to the other under any of
the
provisions of this lease, the party against whom the obligation shall be
asserted shall have the right to make payment "under protest", and if such
party
shall exercise such right, such payment shall not be deemed a voluntary payment
but there shall be deemed reserved to such party the right to institute
appropriate action or proceeding against the other for recovery of the whole
or
such part of said sum as such party shall claim it was not obligated to pay
hereunder. If at any time a dispute shall arise between Lessor and Lessee as
to
any act to be done or work to be performed by either of them on, in or about
the
Leased Premises under any of the provisions of this lease, the party against
whom the obligation to do such act or perform such work shall be asserted,
may
do such act or perform such work and pay the cost thereof "under protest",
and
if such party shall do so, the performance of such act or work and payment
of
such cost shall not be deemed a voluntary performance or voluntary payment,
but
there shall be deemed reserved to such party the right to institute appropriate
action or proceedings against the other for recovery of the whole of such cost
or such part thereof as shall represent the cost of performing the act or work
under which such party shall claim it was not obligated to perform hereunder.
21. ACCORD
AND SATISFACTION:
No
payment by Lessee or receipt or acceptance by Lessor from Lessee of less than
the monthly rent herein stipulated or any other payment herein provided to
be
paid by Lessee to Lessor shall be deemed to be other than a partial payment on
account for any due and unpaid stipulated rent or any other payment herein
provided to be paid by Lessee to Lessor, as the case may be, and no endorsement
or statement on any check or payment of rent or any other payment herein
provided to be paid by Lessee to Lessor, as the case may be, shall be deemed
an
accord and satisfaction.
22. NOTICES:
Unless
herein elsewhere set forth to the contrary for a specified notice, all notices
required or proper under this lease shall be deemed to be properly given when
sent by registered or certified mail, postage prepaid, addressed to the last
address previously furnished by the parties hereto. Until otherwise changed
by
the parties by notice in writing, notices shall be sent as follows:
To
the
Lessor:
White
Properties No. II, LLC
Xxxx
Xxxxxx Xxx 0000
Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000
To
the
Lessee:
Champion
Industries, Inc.
Xxxx
Xxxxxx Xxx 0000
Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000
The
date
of service of such notice shall be the date it is deposited in a postal
receptacle or post office of the United States Postal Service, as the case
may
be.
23. LEASE
SUBORDINATE TO LIEN INDEBTEDNESSES:
This
lease is subject and subordinate to any mortgage or deed of trust which may
now
or hereafter encumber the building and premises of which the Leased Premises
form a part and to all renewals, modifications, consolidations, replacements
and
extensions thereof. This clause shall be self-operative and no further
instrument of subordination need be required by any mortgagee or lender. In
confirmation of such subordination, however, Lessee shall at Lessor's request
execute promptly any appropriate certificate or instrument that Lessor may
request and deliver such to Lessor within fifteen (15) days following receipt
by
Lessee of such certificate or instrument. In the event of the enforcement by
the
trustee or the beneficiary under any such mortgage or deed of trust of the
remedies provided for by law or by such mortgage or deed of trust, Lessee will,
upon request of any person or party succeeding to the interest of Lessor as
a
result of such enforcement, automatically become the lessee of such successor
in
interest without change in the terms or other provisions of such lease;
provided, however, that such successor in interest shall not be bound by (i)
any
payment of rent or additional rent for more than one month in advance except
prepayments in the nature of security for the performance by Lessee of its
obligations under this lease, or (ii) any amendment or modification of this
lease made without the written consent of such trustee or such beneficiary
or
such successor in interest. Upon request by such successor in interest, Lessee
shall execute and deliver an instrument or instruments confirming the attornment
herein provided for.
24. LESSEE
TO EXECUTE ESTOPPEL CERTIFICATE:
At
Lessor's request, Lessee will execute either an estoppel certificate addressed
to any mortgagee or lender of Lessor or a three-party agreement among Lessor,
Lessee and such mortgagee or lender certifying as to such facts (if true) and
agreeing to such notice provisions and other matters as such mortgagee or lender
may reasonably require in connection with Lessor's financing.
25. LIENS
NOT PERMITTED:
Lessee
shall not, at any time, suffer or permit the attachment to the Leased Premises
or Nonexclusive Demised Premises of any lien for work done or materials
furnished in connection with the improvements, maintenance, repair and/or
alterations of the Premises or Nonexclusive Premises by Lessee. If any such
lien
attaches to the Premises or Nonexclusive Premises and is not discharged or
released within sixty (60) days from the date of attachment, Lessor may, at
its
option, pay to the lien claimant the amount of such lien and notify Lessee
of
such payment, in which event such amount shall be immediately due and payable
by
Lessee and shall bear interest as provided in paragraph 19; provided, however,
that if Lessee desires to contest said lien, Lessee shall furnish to Lessor
a
bond written by a surety company licensed to do business in the State of West
Virginia or other security satisfactory to Lessor for an amount of at least
equal to two hundred percent (200%) of the amount of the lien for the Lessor's
protection against all loss or expense on account of such asserted lien during
the period of contest.
26. SPECIAL
AGREEMENT:
It is
understood and agreed that the Leased Premises do not contain an HVAC system.
Lessor agrees that Lessee may (but is not required), at its expense, install
HVAC equipment in the Leased Premises. Lessee may (but is not required), at
its
expense, after execution of this lease, make alterations, erections, additions
or improvements in or to the Demised Premises, but not without first submitting
plans and specifications to the Lessor for the written consent of the Lessor,
which consent shall not be unreasonably withheld or delayed.
27. COVENANTS
OF LESSOR:
Lessor
covenants and agrees that:
(a)
Lessor
has full power and authority to execute and deliver this agreement.
(b)
Lessor
owns good title to the Leased Premises and Lessor shall have good title to
all
improvements to be constructed on the Leased Premises.
(c)
On
or
before the beginning of the term, Lessor will deliver possession of the Premises
to Lessee in good condition and repair, ready for said occupancy and free and
clear of all tenancies and occupancies.
(d)
Lessee,
upon paying the rent and performing Lessee's other obligations herein provided,
shall and may peaceably and quietly have, hold and enjoy the Leased Premises
for
the term hereof.
28. JURISDICTION
AND VENUE:
Lessee
agrees that any suit or action by Lessor against the Lessee in any manner
arising out of this lease or in the breach thereof may be maintained in such
court or courts situate in the State of West Virginia as may have subject matter
jurisdiction thereof. The Lessee appoints the Secretary of State of the State
of
West Virginia to act as agent for the service of process in connection with
any
such suit or action.
29. LIMITATION
OF ACTIONS:
Any
claim, demand, right or defense of any kind by Lessee which is based upon or
arises in any connection with this lease or the negotiations prior to its
execution, shall be barred unless Lessee commences an action thereon, or
interposes in a legal proceeding a defense by reason thereof, within six (6)
months after the date of the inaction or omission or the date of the occurrence
of the event or of the action which the claim, demand or right or defense
relates, whichever applies. In no event shall Lessee have the right to terminate
this lease as a result of Lessor's default, and Lessee's remedies shall be
limited to damages and/or an injunction.
30. WAIVER
OF JURY TRIAL:
Lessor
and Lessee hereby waive their respective right to trial by jury of any cause
of
action, claim, counterclaim or cross-complaint in any action, proceeding and/or
hearing brought by either Lessor against Lessee or Lessee against Lessor on
any
matter whatsoever arising out of, or in any way connected with, this lease,
the
relationship of landlord and tenant, Lessee's use or occupancy of the Premises,
or any claim of injury or damage, or the enforcement of any remedy under any
law, statute or regulation, emergency or otherwise, now or hereafter in effect.
31. NO
PRESUMPTION AGAINST DRAFTER:
Lessor
and Lessee understand, agree and acknowledge that:
(a) This
lease has been freely negotiated by both parties; and
(b) In
any
controversy, dispute or contest over the meaning, interpretation, validity
or
enforceability of this lease or any of its terms or conditions, there shall
be
no inference, presumption or conclusion drawn whatsoever against either party
by
virtue of that party having drafted this lease or any portion thereof.
32. SINGULAR,
PLURAL, GENDER, ETC.:
When
required by the context hereof, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all others.
33. BINDING
THE PARTIES, ETC.:
The
respective rights and obligations provided in this lease shall bind and shall
inure to the benefit of the parties hereto, their legal representatives, heirs,
successors and assigns; provided, however, that no rights shall inure to the
benefit of any successor of Lessee unless Lessor's written consent for the
transfer to such successor has first been obtained as provided in paragraph
14.
WITNESS
the following signatures and seals:
LESSOR:
WHITE
PROPERTIES NO. II, LLC,
a
West
Virginia limited liability company
By
/s/
Xxxx
Xxxxx
Its Manager
LESSEE:
CHAMPION
INDUSTRIES, INC.,
a
West
Virginia corporation
By
/s/
Xxxxx X.
Xxxxxx
Its
President &
COO
