Attached files
EXHIBIT
10.2
AGREEMENT
OF LEASE BETWEEN ADJ CORPORATION AND CHAMPION PUBLISHING, INC.
THIS AGREEMENT OF LEASE is made as of
the 27th day of October, 2009, 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 real property commonly known as 3000
Washington Street West, Charleston, WV 25312, and more particularly described in
Exhibit A attached hereto and incorporated herein by reference (hereinafter
called "Premises" or "Demised Premises"), together with all improvements now
existing thereon. Lessee is occupying and has heretofore occupied the
Premises and acknowledges the same to be in adequate condition at the
commencement of this Lease.
2. Term. The
term of this lease shall be sixty (60) months commencing on November 1,
2009, and ending at 11:59 p.m. on October 31, 2014, both dates inclusive,
unless sooner terminated as hereinafter provided or unless renewed as
hereinafter provided. Provided that Lessee shall have complied with
all the terms and conditions of this lease, Lessee shall have the option to
renew this lease for one (1) successive, additional period of sixty (60) months
after the expiration of the original term hereof, in such instance, with the
exception of increased rental as set forth in Section 3 below, on the same terms
and conditions as herein provided. Such option to renew shall be
exercised by Lessee's giving written notice to Lessor of its exercise of the
option at least six (6) months before the end of the original term.
3. Rent. Lessee
shall pay to Lessor, as rental for the occupation and use of the Premises for
and during the original term hereof, a total rental of $750,000.00 payable
monthly in advance in equal installments of $12,500.00 each for the initial 60
months hereof, the first of such installments being payable on the 1st day of
November, 2009, and the remaining installments being due and payable on the 1st
day of each calendar month thereafter during the original term
hereof.
Lessee shall pay to Lessor, as rental
for the use and occupancy of the premises for and during the renewal term, if
any, for each month, due and payable on the 1st day of each calendar month
during the renewal term, a monthly rental determined as follows:
The monthly rental shall be determined
in accordance with the cost of living changes in the "Consumer Price Index for
All Urban Consumers - U.S. City Average - All Items," 1982-4 = 100, as published
by the Bureau of Labor Statistics, United States Department of Labor, and
hereinafter referred to as the "BLS Consumers' Price Index."
The "BLS Consumers' Price Index" figure
for the month of November, 2009, is hereby fixed and established as the base
index figure and the figure for the month of October, 2014 shall be used to
determine the amount of increase. The monthly rental shall be
determined by dividing $12,500 (the monthly rental for the period commencing
November 1, 2009, and ending October 30, 2014) by the base index figure
aforesaid and then multiplying that amount by the sum of the base index figure
plus the difference between the index figure for the month of October, 2014
and the base index figure. In no event however shall the adjustment
be less than $250 (i.e. the monthly rental for the renewal term shall be at
least $12,750).
In the
event that at any time during the original term or the renewal term the United
States Bureau of Labor Statistics shall discontinue the issuance of "BLS
Consumers' Price Index" then in such event the parties hereto agree to use any
other standard nationally recognized cost of living index then issued and
available, which is published by the United States Government.
The rent
for the original term and the renewal term shall be subject to an additional
increase over the rental amount otherwise set forth in this paragraph 3 based on
the increase, if any, in the monthly principal and interest payment due on
Lessor’s financing (currently with JP Morgan Chase Bank) over
$11,500. Lessor shall advise Lessee, in writing, of any increase in
rental resulting from this adjustment of Lessor’s financing as soon as such
adjustment is known. The resulting increase in rent payable under
this Lease shall be effective after the date of such written
notice.
All rental shall be payable to Lessor
at Post Office Box 1754, Huntington, West Virginia, 25718, or at such other
place as Lessor may direct in writing.
4. Net
Rent. It is the intention of the Lessor and the Lessee
that the rent herein specified shall be net to the Lessor in each month during
the term of this lease; that all costs, expenses, and obligations of every kind
relating to the Demised Premises, except as may be specifically otherwise
provided in this Lease, which may arise or become due during the term of this
lease shall be paid by the Lessee; and that the Lessor shall be indemnified by
the Lessee against such costs, expenses and obligations. Without
limiting the generality of the foregoing provision, the parties agree
that:
a. Lessee
shall promptly pay all taxes and assessments against or allocated to the
Premises as and when they become due for tax periods after the signing of this
Lease. Lessee will pay all taxes and assessments levied against the
equipment, buildings, or other property which is now located on or which Lessee
may erect, install or have located on the Premises. Taxes for the
current year shall be prorated between Lessor and Lessee as of the date of
commencement of this Lease.
b. In
the event the Premises are assessed as a separate tax parcel and Lessee fails to
pay the entire real estate tax bill when due, Lessor may, but shall not be
obligated to, pay the tax bill and the amount so paid together with interest at
the rate of eighteen (18%) percent per annum from the date of payment shall be
deemed additional rent due hereunder and shall be paid by Lessee not later than
the date the next installment of rent shall become due hereunder.
c. Lessee,
at its own cost and expense, covenants and agrees to keep the Premises,
including any improvements and betterments now existing or which may be made to
the Premises, fully insured during the term of this lease against loss or damage
by fire and other casualty; such insurance to be written by an insurance company
or companies authorized to do business in the State of West Virginia for the
full insurable replacement value of the Premises, including
improvements. Lessee covenants and agrees that Lessor and Lessee
shall be named as insured parties on such policies as their interests may
appear, and that Lessee shall procure endorsements on the policies required to
be maintained by it under the provisions of this paragraph wherein and whereby
the insurance company will agree that the Lessor will be given fifteen (15)
days' advance written notice of any cancellation or reduction of insurance under
any such policy and that copies of all endorsements issued after the date of
such policy will be forwarded to Lessor.
In the event that Lessee fails to pay
for such fire and other casualty insurance when the premiums are due, Lessor
may, but shall not be obligated to, pay the premium necessary to prevent the
lapse of existing policies or obtain and pay the premium for replacement
policies, and the amount so paid together with interest at the rate of eighteen
percent (18%) per annum from the date of payment shall be deemed additional rent
due hereunder and shall be paid by Lessee not later than the date the next
installment of rent shall become due hereunder.
5. Lien for
Rent. Lessee covenants and agrees that Lessor shall have
and is hereby given a lien upon the leasehold estate herein created and upon all
of the property of Lessee of every kind and character which shall come upon the
Demised Premises at any time during the term of this lease or any extension
hereof to secure the payment of all of the rent and other sums whatsoever which
are or shall become due Lessor under the terms of this lease and such lien shall
be paramount to any other liens placed or suffered thereon by
Lessee. For the purpose of enforcing such lien, Lessor shall have and
is hereby given the right to distrain for all of such rent and other sums in the
manner and form as provided by the laws of the State of West
Virginia. The lien and right given Lessor in this paragraph shall be
cumulative and in addition to all other rights and remedies which it now has or
may hereafter have under this lease and the laws of the State of West
Virginia.
6. 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 workman-like 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.
7. Permissible
Use. The Lessee shall during the continuance of this lease,
conduct upon said Demised Premises a printing and/or office supply and furniture
business and shall neither use nor suffer the same to be used for any other
purpose without the prior written consent of the Lessor, which consent shall not
be unreasonably withheld. Lessee shall conduct and manage the Demised
Premises in proper and orderly manner and will not allow the Demised Premises or
any part thereof to be used for any illegal or immoral purpose and will not
carry on or permit upon said Demised Premises any offensive, noisy, or dangerous
trade, business, manufacture or occupation of a nuisance. Lessee
shall not alter the drainage of the Premises. Lessee
acknowledges that it has for some time been in possession of the Premises and
understands and agrees that if Lessee's actions have created or hereafter 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 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.
§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.
8. 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 shall be responsible for maintaining
the condition of the pavement, sidewalks and parking areas on the Premises and
shall keep the same free of ice and snow or any other
obstruction. The Lessee shall be solely liable for any damage claimed
to have resulted from a defective condition of the Premises.
Lessor shall not be required to furnish
any services or facilities or to make any repair or alteration in or to the
Demised Premises whatsoever. Lessee hereby assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Premises. Lessee further agrees that it will
commit no waste on the Premises.
9. 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.
10. Utilities. Lessor
shall not be required to furnish any utility or similar service to the Premises,
including but not limited to, steam, gas, water, heat or
electricity. Except when due to the negligence of Lessor, Lessor
shall not be liable for any failure of any utility service or for injury to
person (including death) or damage to property resulting from steam, gas, water,
heat, electricity, rain or snow which may flow or leak from any part of the
leased property or from any pipes, appliances or plumbing works, from the street
or subsurface or from any other place, or for interference with light or other
easements however caused. Lessee shall pay all charges for utility
service, including but not limited to, steam, gas, water, heat, electricity and
other services used in or about or supplied to the Premises and shall indemnify
Lessor against any liability on such account.
11. Indemnity. Lessee
during the term of this lease will indemnify Lessor against and hold Lessor
harmless from all claims, demands and/or causes of action including all costs,
expenses and attorneys fees of Lessor incident thereto for (1) injury to or
death of any person or loss of or damage to any property, including the
Premises, (2) failure by Lessee to perform any covenant required to be performed
by Lessee hereunder, (3) failure to comply with any requirements of any
governmental authority, (4) any mechanic's lien or security agreement filed
against the Premises, any equipment therein or any materials used in the
construction or alteration of any building or improvement thereon, where such
claims, demands, and/or causes of action arise from or are incidental to the use
of the Premises by Lessee, its officers, agents, servants, employees and/or
invitees.
12. Insurance. Lessee
agrees that it will, at its cost and expense, obtain and keep in force and
effect in the names of both Lessor and Lessee, as their respective interests may
appear, general liability insurance against any and all claims for personal
injury or property damage occurring in, upon or about the Premises during the
term of this lease. Such insurance shall be maintained for the
purpose of protecting Lessor and Lessee pursuant to the indemnity contained in
the foregoing Section 11, but shall not be in satisfaction of the indemnity
obligations stated herein, and shall have limits of liability of not less than
Two Million Dollars ($2,000,000) for injuries to any number of persons in any
one accident or occurrence or for damage to property in any one accident or
occurrence. Lessee agrees that it will, at its cost and expense,
obtain and keep in force and effect in the names of Lessor and Lessee, as their
respective interests may appear, a standard fire and extended coverage insurance
policy or policies protecting the Premises from loss or damage within the
coverage of such insurance policy or policies for its full insurable replacement
value. Lessee will furnish to Lessor appropriate and acceptable
evidence of its compliance with the provisions of this paragraph, such as
certificates of insurance or copies of the policies. Such
certificates or policies shall provide that such insurance will not be canceled
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.
13. 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 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.
14. Fire or Other Casualty
Losses. In the event the Premises are damaged or destroyed or
rendered partially untenantable for their then use by fire or other casualty
without the fault of Lessee, Lessor shall repair and/or rebuild the same as
promptly as possible, provided that the proceeds from Lessee's insurance
policies are available to Lessor and sufficient in amount to fully pay all costs
of repair or rebuilding. Lessor's obligation hereunder is merely to
restore the Premises to substantially the same condition as existed immediately
prior to the happening of the casualty and shall not extend to the repair or
replacement of any improvements, additions, fixtures, installations or exterior
signs of the Lessee. If as a result of such partial destruction or
damage there is substantial interference with the operation of Lessee's business
in the Premises, the rent payable under this lease shall be abated in the
proportion that the portion of the Premises destroyed or rendered untenantable
bears to the total Premises. Such abatement shall continue for the
period commencing with such damage or destruction and ending with the completion
by the Lessor of the work of repair and/or reconstruction, if Lessor is
obligated to complete such work. If the damage or casualty was caused
by the 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.
15. Assignment or
Subletting. Lessee shall not assign, transfer, mortgage,
or pledge this lease and will not sublet the Premises or any part thereof
without first obtaining the Lessor's written approval. Lessor reserves the right
to sell its interest in the Premises and to assign or transfer this lease upon
the condition that in such event this lease shall remain in full force and
effect, subject to the performance by Lessee of all the terms, covenants and
condition on its part to be performed, and upon the further condition that such
assignee or transferee (except an assignee or transferee merely for security)
agrees to be bound to perform all terms, covenants and conditions of this
lease. Upon any such sale, assignment or transfer, other than merely
as security, Lessee agrees to look solely to the assignee or transferee with
respect to all matters in connection with this lease and Lessor shall be
released from any further obligations hereunder.
16. Events of
Default. In the event that the rent, or any part thereof, of
any additional rental or other payment shall not be paid on any day when such
payment is due and such default shall continue for a period of ten (10) days
after written notice by Lessor to Lessee; or if Lessee should fail in the
performance of, breach or permit the violation of any of the covenants,
conditions, terms, or provisions contained in this lease which on the part of
the Lessee ought to be observed, performed or fulfilled and shall fail to cure
or make good such failure, breach or violation within thirty (30) days after
written notice and demand from Lessor; or if the Demised Premises or any part
thereof shall be abandoned; or if Lessee shall be 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.
17. Surrender of
Premises. Upon expiration of the term of this Lease or any
renewal term, or the sooner termination of this Lease or repossession of the
Premises as herein provided, the Lessee shall peaceably surrender possession of
the Premises in as good order and condition as they now are, reasonable wear and
tear excepted, and shall deliver all keys to the Premises to
Lessor.
18. Right of Access of the
Lessor. The Lessee further covenants and agrees that the
Lessor may have access to the Demised Premises at all reasonable times and upon
reasonable notice for the purpose of the examining or exhibiting the same for
sale.
19. Notices. All
notices permitted or required to be given hereunder shall be effectual if in
writing signed by the party given notice and sent by certified or registered
U.S. mail, postage prepaid, to the other parties at the following
addresses:
Lessor: Post
Office Box 1754
Huntington, West
Virginia 25718
Lessee: Post
Office Box 2968
Huntington, West Virginia
25728
20. Broker. Lessee
and Lessor covenant, warrant and represent that there was no broker instrumental
in consummating this lease and that no conversations or prior negotiations were
held with any broker concerning the renting of the Demised
Premises. Lessee and Lessor each agree to hold the other harmless
against any claim for brokerage commission arising out of any conversations or
negotiations had by Lessee or Lessor with any broker.
21. Title and
Warranty/Subordination. Lessor covenants and agrees with
Lessee that Lessor is the lawful owner of the Premises and that they are free
and clear of all other liens, claims and encumbrances whatsoever, except the
permitted encumbrances described below, zoning requirements, covenants,
conditions, easements and restrictions of record and non-delinquent taxes and
assessments, and Lessor will defend the same against all other claims
whatsoever. Lessor further covenants and agrees that Lessee by paying
the rents and observing and keeping the covenants of this lease on its part to
be kept, shall peaceably and quietly hold, occupy and enjoy the Premises during
the term herein created, or any extension.
Upon request by the Lessor, Lessee
shall subordinate its rights hereunder to the lien of any mortgage or deed of
trust, or the lien resulting from any other method of financing or refinancing,
now or hereafter in force against the Premises, and to all 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.
22. Zoning;
Permits. Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease and all terms, covenants and conditions hereof are
in all respects subject and subordinate to all zoning restrictions affecting the
Premises, and the Lessee shall be bound by such restrictions. The
Lessor does not warrant that any licenses or permits which may be required for
Lessee's business to be conducted on the Premises will be granted, or if granted
will be continued in effect or renewed. Any failure to obtain
licenses or permits or any revocation thereof or failure to renew shall not
release Lessee from continuing performance of this Lease.
23. 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.
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24.
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Option to Purchase
Land. Lessee shall have the option to purchase the
Premises
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at any
time during this Lease on the terms and conditions hereinafter set
forth:
a. Exercise of
Option. This option may be exercised by the Lessee only
by giving Lessor written notice of its intent to exercise this option via
certified mail, return receipt requested. This notice must be given to the
Lessor at the address provided herein or such other address as Lessor may advise
Lessee in writing. The option given herein must be exercised by the Lessee, if
at all, prior to 90 days before the end of the original 60 month term of this
Lease or any renewal thereof (the "Exercise Period"). If not exercised within
the Exercise Period, the option expires and is of no further force or
effect. Should this Lease be terminated prior to the termination
date, this option shall likewise and at the same time be
terminated.
b. Condition to Exercise of
Option. The option provided herein can only be exercised by
the Lessee at a time when this Lease is still in force and effect and the Lessee
is not in default under any of the terms hereof.
c. Closing. Closing of
said purchase shall occur at such date as the Lessor and Lessee may agree which
is not more than thirty (30) days following Lessor’s receipt of Lessee’s written
notice as set forth in (a) above. The Closing shall take place at
such a time and place as the parties may agree or at such place in the City of
Huntington, West Virginia, as may be designated by the Lessor. The
Lease shall continue in effect during the period between Lessee's exercise of
the option and Closing and the Lessee shall continue to pay to Lessor the Rent
and all other payments required hereunder and shall comply with all other
provisions of this Lease notwithstanding the exercise of the option or the
expiration of the term prior to Closing. Closing under this option to
purchase shall be contingent upon Lessee's acts or omissions not resulting in a
default under this Lease during the period between the exercise of the option
and Closing.
d. Purchase
Price. The purchase price for the Premises shall be $1,520,000
(the "Purchase Price").
e. Payment of Purchase
Price. The total Purchase Price shall be payable in cash or
certified funds at Closing, together with all Rent and other sums then due and
payable under this Lease to and including the date of purchase.
f. At
Closing, Lessor will deliver to the Lessee a deed conveying the Land with
covenants of General Warranty free and clear of all liens and encumbrances other
than liens of taxes, covenants, restrictions, easements and other matters of
record and any liens and encumbrances created, suffered or imposed upon the
Premises by or with the acquiescence of Lessee. Lessor shall pay the transfer
taxes associated with such deed. Lessee agrees to purchase and accept
the Premises as is, where is with all faults. Any unpaid obligations
of Lessee to Lessor shall survive the termination of this Lease which shall
occur upon delivery of the Deed at Closing.
g. It
is understood and agreed by and between the parties hereto that in the event the
Lessee exercises this option to purchase the Premises and this transaction is
closed, Lessee is responsible under the terms of this Lease for the payment of
all ad valorem real property taxes, assessments and fees assessed against the
Premises prior to Closing and all such post-Closing taxes, assessments and fees
will continue to be assumed by the Lessee.
h. It
is understood and agreed by and between the parties hereto that this option and
any contract created by the exercise hereto shall be governed by the laws of the
State of West Virginia.
25. Miscellaneous.
a. Wherever
the words "Lessor" and "Lessee" appear in this lease, they shall include the
parties and their respective sublessee heirs, devisees, executors,
administrators, successors and assigns, and the provisions of this agreement are
binding upon them. Those words as may be used herein, shall be
construed to include the plural as well as the singular; and the necessary
grammatical changes required to make the provisions apply to either
corporations, partnerships, other entities, or individuals, masculine or
feminine, shall in all cases be assumed as though fully
expressed. The neuter gender has been used herein for convenience
only.
b. This
lease expresses the entire agreement between the parties hereto. No
amendments, modification, or waiver of any provision hereof shall be valid
unless in writing and signed by all of the parties hereto.
c. This
agreement 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:
_______________,
2009 By:____________________________
Its:____________________________
LESSEE:
CHAMPION INDUSTRIES,
INC.,
a West Virginia
corporation
Dated:
_______________,
2009 By:____________________________
Its:____________________________
STATE OF
WEST VIRGINIA,
COUNTY OF
CABELL, TO-WIT:
The foregoing instrument was
acknowledged before me this ____ day of
_______________,
2009, by _____________________________, ________________ of ADJ
Corp., a
West Virginia corporation, on behalf of said corporation.
My commission expires:
____________________________________.
___________________________________
NOTARY PUBLIC
[SEAL]
STATE OF
_________________,
COUNTY OF
_______________, TO-WIT:
The foregoing instrument was
acknowledged before me this ____ day of
_______________,
2009, by _________________________, ___________________ of
Champion
Industries, Inc., a West Virginia corporation, on behalf of said
corporation.
My commission expires:
____________________________________.
___________________________________
NOTARY PUBLIC
[SEAL]
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