EXHIBIT 10.4
LEASE AGREEMENT
1) PARTIES. THIS LEASE, dated the 27TH day of OCTOBER, 1997, by and between THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, (hereinafter "Lessor"),
and CHAMPION INDUSTRIES. INC. D/B/A UPTON PRINTING, (hereinafter "Lessee"),
WITNESSETH:
In consideration of the rental stated herein and their mutual covenants, Lessor
leases to Lessee and Lessee leases from Lessor, on the terms and conditions
herein, the Premises, situated in Xxxxxxxxx Xxxxxx, Louisiana, and described
more particularly as follows:
APPROXIMATELY 11,250 SQ.FT. OF OFFICE/WAREHOUSE, 0000 XXXXXXXXX XXXXXXX,
XXXXXXXX X-0, XXXXXX 000-000, XXXXXXX, XX 00000 (SEE ATTACHED EXHIBIT"A")
2) TERM. The term of this Lease is THREE (3) year(s), commencing NOVEMBER 1,
1997 and expiring OCTOBER 31, 2000; provided, however, that if Lessee takes
occupancy sooner than the commencement date, the commencement date shall be the
date of occupancy, the Lease shall commence upon Lessee's acceptance and the
term will run from the first of the following month for the number of years set
out above.
3) RENTAL. Lessee agrees to pay to Lessor, without deduction, set off, prior
notice, or demand, rental during said term payable on the first day of each
month in advance monthly installments of THREE THOUSAND NINE HUNDRED
THIRTY-SEVEN AND 50/100------($3,937.50) dollars. One monthly installment of
rent shall be due and payable on the date of execution of this Lease by Lessee
for the first month's rent and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding the
"commencement date" during the demised term; provided, that if the "commencement
date" should be a date other than the first day of a calendar month, the monthly
rental set forth above shall be prorated to the end of that calendar month, and
all succeeding installments of rent shall be payable on or before the first day
of each succeeding calendar month during the demised term.
On the date of execution of this Lease by Lessee, there shall be due and
199
payable by Lessee a security deposit in an amount equal to one monthly rental
installment to be held for the performance by Lessee of Lessee's covenants and
obligations under this Lease, it being expressly understood that the deposit
shall not be considered an advance payment of rental or a measure of Lessor's
damage in case of default by Lessee. Upon the occurrence of any event of default
by Lessee or breach by Lessee of Lessee's covenants under this Lease, Lessor
may, from time to time, without prejudice to any other remedy, use the security
deposit to the extent necessary to make good any arrears of rent and/or any
damage, injury, expense or liability caused to Lessor by the event of default or
breach of covenant, any remaining balance of the security deposit to be returned
by Lessor to Lessee upon termination of this Lease.
All rental due under this Lease is payable to the order of THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, but delivered to Lessor or Lessor's
Agent at the address designated for notice in Article 26.
4) LATE CHARGES. Lessee's failure to pay rent promptly may cause Lessor to incur
unanticipated costs. The exact amount of such costs is impractical or extremely
difficult to ascertain. Such costs may include, but are not limited to
processing and accounting charges and late charges which may be imposed on
Lessor by any ground lease, any rent payment within ten (10) days after it
becomes due, Lessee shall pay Lessor a late charge equal to ten percent (10%) of
the overdue amount. The parties agree that such late charge represents a fair
and reasonable estimate of the costs Lessor will incur by reason of such
payment.
5) IMPROVEMENTS TO BE MADE; DELIVERY OF PREMISES. If Lessor is to make any
improvements prior to Lessee's occupancy, a separate Schedule A shall be
attached and initialed by each party setting out the agreed improvements; in
such event Lessor shall proceed diligently to make such improvements and the
Premises shall be deemed acceptable when such improvements are made. If no
Schedule A is attached, Lessee shall be deemed to have accepted the Premises in
their existing condition. Lessee shall in no event be liable for any latent
defects. Should Lessor's delay be reasonably preventable, Lessee's remedy shall
be to terminate this Lease should Lessor still fail after notice to complete the
work with dispatch. Any improvements desired by Lessee not included in Schedule
A shall be at Lessee's cost and a delay arising from their completion will not
delay the commencement of the Lease.
6) TAXES. In addition to the rental provided for hereinabove, Lessee shall pay
each month one-twelfth of his prorata portion (based upon the ratio which the
total number of square feet covered by this Lease bears to the total number of
200
square feet in the center) of the real estate taxes and assessments general and
special, levied or imposed, with respect to said multiple occupancy buildings
which for the purposes hereof shall be deemed to include related parking
facilities and all the improvements to said buildings, as estimated by Lessor.
In January of each year, Lessor shall furnish Lessee with a statement setting
forth the amount of tax levied against the land, buildings and improvements, the
Lessee's share of said tax, and the amount paid by the Lessee to pay for said
tax during the prior year. Said statement shall include a copy of the tax bills
for the year and a check or xxxx for any over or under payment for said taxes.
In addition to all other payments required to be paid by Lessee to Lessor,
Lessee shall pay in the same manner as set forth in the preceding paragraph all
rents, sales and use taxes, if any, levied or imposed with respect to the leased
Premises or this Lease and all such levies of ad valorem or other property taxes
or taxes assessed with respect to property ownership, as amended or modified,
which are not presently in effect and with which it would be chargeable as a
consequence of the ownership of the demised Premises if in fact it were the
owner thereof in fee simple at the time of such assessment of levy.
7) KIND OF BUSINESS. Lessee shall occupy the Premises throughout the full term
of the Lease, and the principal business to be conducted is STORAGE & WHOLESALE
DISTRIBUTION OF PRINTED FORMS AND RELATED OFFICE USE . Lessee agrees to comply
with (and to indemnify Lessor from any violations of) all laws or ordinances,
including the Occupational Safety and Health Act of 1970, relative to Lessee's
use of the Premises.
8) COMPLIANCE WITH LAWS & REGULATIONS. Lessee shall at its own cost and expense
obtain any and all licenses and permits necessary of any such use. Lessee shall
comply with all governmental laws, ordinances and regulations applicable to
Lessee's use of the Premises, and shall promptly comply with all governmental
orders and directives for the corrections, preventions and abatement of
nuisances in, upon, or connected with Premises, all at Lessee's sole expense.
Without Lessor's prior written consent, Lessee shall not receive, store or
otherwise handle any product, material or merchandise which is explosive or
highly inflammable, or considered to be Hazardous Material (see Article 9f
below). Lessee will not permit the Premises to be used for any purpose or in any
manner which would render the insurance thereon void or the insurance risk more
hazardous. Lessee shall also be responsible for making any modifications and
repairs to the facility at Lessee's expense which are imposed or required by any
governmental authority as a result of Lessee's use and/or occupancy of the
Premises. Said repairs and/or modifications shall be approved
201
by the Lessor.
9) ENVIRONMENTAL.
(a) LESSOR'S REPRESENTATION. As of the date of this Lease, Lessor represents to
Lessee, to the best of Lessor's knowledge based solely on the Environmental
Reports dated July, 1991; March, 1992; and, January, 1994 that the Lessor has
not disposed, stored or used Hazardous Materials (as hereinafter defined) in the
Building, other than those that are in compliance with law.
(b) LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
i) Lessee represents, warrants and covenants that (1) the Premises will
not be used for any dangerous, noxious or offensive trade or business
and that it will not cause or maintain a nuisance there, (2) it will
not bring, generate, treat, store, use or dispose of Hazardous
Materials at the Premises, (3) it shall at all times comply with all
Environmental Laws (as hereinafter defined) and shall cause the
Premises to comply, and (4) Lessee will keep the Premises free of any
lien imposed pursuant to any Environmental Laws.
ii) Premises for purposes of this Article shall mean the Building and
the Property including parking areas.
iii) REPORTING REQUIREMENT. Lessee warrants that it will promptly
deliver to the Lessor, (1) copies of any documents received from the
United States Environmental Protection Agency and/or any state, parish
or municipal environmental or health agency concerning Lessee's
operations upon the Premises, (2) copies of any documents submitted by
the Lessee to the United States Environmental Protection Agency and/or
any state, parish or municipal environmental or health agency
concerning its operations on the Premises, including but not limited to
copies of permits, licenses, annual filings, registration forms and,
(3) upon the request of Lessor, Lessee shall provide Lessor with
evidence of compliance of Environmental Laws.
iv) TERMINATION, CANCELLATION, SURRENDER. At the expiration or earlier
termination of this Lease, Lessee shall surrender the Premises to
Lessor
202
free of any and all Hazardous Materials and in compliance with all
Environmental Laws. Lessor may require, at Lessee's sole expense at the
end of the term, a clean-site certification, environmental audit or
site assessment.
v) Subject to the provisions of this Article and to the prior written
consent by Lessor which may be given or withheld in Lessor's sole
discretion, Lessee shall be entitled to use and store only those
Hazardous Materials that are necessary for Lessee's business, provided
that such usage and storage is in full compliance with all applicable
Environmental Laws.
vi) Lessee shall not be entitled to install any tanks under, on or
about the Premises for the storage of hazardous Materials without the
express written consent of Lessor, which may be given or withheld in
Lessor's sole discretion.
(c) LESSOR'S RIGHT OF ACCESS AND INSPECTION.
i) Lessor shall have the right but not the obligation, at all times
during the term of this Lease to (1) inspect the Premises, (2) conduct
tests and investigations and take samples to determine whether Lessee
is in compliance with the provisions of this Article, and (3) request
lists of all hazardous Materials used, stored or located on the
Premises. If such tests, inspections and/or samples are conducted by
Lessor as a result of Lessee's violations of the provisions of Article
9 of this Lease, the Lessee shall bear the cost of said tests,
inspections and/or samples.
ii) Lessee will cooperate with Lessor and allow Lessor and Lessor's
representatives access to any and all parts of the Premises and to the
records of Lessee with respect to the Premises for inspection purposes
at any time. In connection therewith, Lessee hereby agrees that Lessor
or Lessor's representatives may perform any testing upon or of the
Premises that Lessor deems reasonably necessary for the evaluation of
environmental risks, costs, or procedures, including soils or other
sampling or coring.
(d) VIOLATIONS - ENVIRONMENTAL DEFAULTS.
i) Lessee shall give to Lessor immediate verbal and follow-up written
notice of any presence, disposal, escape, migration leakage, spillage,
discharge, emission release, threatened release, handling or
transportation of Hazardous Materials in, on, at, under, from, in the
203
vicinity of, affecting or related to the Premises or any part thereof.
Lessee covenants to promptly investigate, clean up and otherwise
remediate any spill, release or discharge of Hazardous Materials on,
at, from or adjacent to the Premises at Lessee's sole cost and expense;
such investigation, clean up and remediation to be performed in
accordance with all Environmental Laws. Lessee shall return the
Premises to the condition existing prior to the introduction of any
such Hazardous Materials.
ii) In the event of (1) a violation of any Environmental Law, (2) a
release, spill or discharge of a Hazardous Substance on or from the
Premises, or (3) the discovery of any environmental condition requiring
response which violation, release, or condition is attributable to the
acts or omissions of Lessee, its agents, employees, representatives,
invitees, licensees, sublessees, customers, or contractors, or (4) an
emergency environmental condition (together "Environmental Defaults"),
Lessor shall have the right, but not the obligation, to immediately
enter the Premises, to supervise and approve any actions taken by
Lessee to address the violation, release, or environmental condition,
or if the Lessor deems it necessary, then Lessor may perform, at
Lessee's expense, any lawful actions necessary to address the
violation, release, or environmental condition.
iii) Lessor has the right but not the obligations to cure any
Environmental Defaults, has the right to suspend some or all of the
operations of the Lessee until it has determined to its sole
satisfaction that appropriate measures have been taken, and has the
right to terminate the Lease upon the occurrence of any Environmental
Defaults.
(e) ADDITIONAL RENT. Any expenses which the Lessor incurs, which are to be at
Lessee's expense pursuant to this Article, will be considered Additional Rent
under this Lease and shall be paid by Lessee on demand by Lessor.
(f) DEFINITIONS.
i) "HAZARDOUS MATERIALS" shall mean, (1) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 ("RCRA"),
as amended from time to time; (2) "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. ss.9601, ET. SEQ.) ("CERCLA"), as amended from
time to time; (3) hazardous waste, hazardous materials, toxic
substances or hazardous substances as defined in Governmental
Requirements (defined below) now existing or hereafter enacted; (4)
204
asbestos containing materials; (5) polychlorinated biphenyls; (6)
radioactive materials; (7) chemicals known to cause cancer or
reproductive toxicity; (8) spilled or leaked petroleum products,
distillates or fractions; (9) any substance the presence of which on
the Property is prohibited by any Governmental Requirements; and (10)
any substance for which any Governmental Requirements requires a permit
or special handling in its use, collection, storage, treatment, or
disposal.
ii) "ENVIRONMENTAL LAWS" means any and all federal, state and local
laws, statutes, rules, regulations, permits, licenses and all other
legal requirements regulating or imposing liability or standards of
conduct concerning, any hazardous, toxic, or dangerous waste, substance
or material or the protection of human health or the environment,
including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transportation, handling, reporting, licensing, permitting,
investigation or remediation of Hazardous Materials. Environmental Laws
include, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss.9601, ET.
SEQ.)("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C.
1801 ET SEQ.), the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 ET SEQ.) ("RCRA"), the Federal Water Pollution Control Act, (33
U.S.C. ss.1251, ET SEQ.), the Clean Air Act, (42 U.S.C. ss.7401, ET
Seq.), the Toxic Substances Control Act, (15 U.S.C. ss.2601 ET SEQ.),
the Safe Drinking Water Act, (42 U.S.C. ss.300 ET SEQ.), the
Environmental Protection Agency's regulations relating to underground
storage tanks (40 C.F.R. Parts 280 and 281), any so-called "Superfund"
or "Superlien" law, and the Louisiana Environmental Quality Act, La.
R.S. 30:2001, ET SEQ., as such laws have been amended or supplemented.
(g) SURVIVAL. The provisions of this Article shall survive the expiration or
earlier termination of this Lease.
10) ALTERATIONS. All alterations, replacements and improvements made upon the
Premises during the Lease, including lighting, electrical wiring, office
partitions, all heating and air conditioning, shall be done only with the prior
express written consent of Lessor and shall become the property of Lessor upon
expiration of the Lease. However, those certain trade fixtures, machinery and
equipment installed by Lessee solely for use in his business shall remain the
property of Lessee; such trade fixtures, machinery and equipment installed by
Lessee shall be removed at the expiration of the Lease, provided the Lease not
then be in default and provided the Premises be returned to the same
205
conditions as when let, ordinary wear and tear, act of God or other casualty
excepted. No consent of Lessor for Lessee to make improvements or repairs to the
Premises shall be deemed to permit Lessor's interest to become subject to labor
or material liens.
11) DELIVERY AT END OF LEASE. At expiration of this Lease, Lessee shall
redeliver to Lessor the Premises in good order and condition, clear of all goods
and broom cleaned and shall make good all damages to the Premises, usual wear
and tear damage by the elements excepted, and shall remain liable for holdover
rent until the Premises with keys shall be returned to such order to Lessor. No
demand notice of such delivery shall be necessary.
12) LIEN FOR PAYMENT OF RENTAL. Lessee hereby agrees that Lessor shall have the
rights provided for protection of interests under Louisiana law, and in addition
shall have a possessory lien on all goods located upon the Premises for payment
of all rental and other sums due by Lessee to Lessor by reason of this Lease.
13) ASSIGNMENT AND SUB-LETTING. The Lease may not be assigned, and the Premises
may not be sublet, partially or fully, without prior written consent of Lessor.
Even in the event of permitted assignment or subletting, Lessee acknowledges
that it shall remain fully responsible for compliance with all terms of the
Lease. Any sublessee occupying any part of this space shall, by the act of
subletting formally or informally, assume all obligations of Lessee, whether or
not Lessor knew of or approved or disapproved of such subletting.
14) INSOLVENCY, ETC. AS DEFAULT. In the event of Lessee's bankruptcy,
receivership, insolvency, attachment by law of its contents, or assignment for
the benefit of creditors, or Lessee's failure to maintain a going business in
the Premises; Lessor may immediately upon written notice to Lessee declare a
default in the Lease.
15) DEFAULT BY LESSEE. Should Lessee fail to pay any of the rentals provided for
herein, or should Lessee fail to comply with any of the other obligations of
this Lease, within ten (10) days from the mailing, by Lessor of notice demanding
same, Lessor shall have the right, at Lessor's option (a) to cancel this Lease,
in which event there shall be due to Lessor as liquidated damages, a sum equal
to the amount of the guaranteed rent for one year, or alternatively at Lessor's
option to be reimbursed all actual cost incurred in reentering, renovating and
reletting said Premises; (b) to accelerate all rentals due for the unexpired
remaining term of this Lease and declare same immediately due and payable; or
(c) to xxx for the rents in intervals or as
206
the same accrues. The foregoing provisions are without prejudice to any remedy
which might otherwise be used under the laws of Louisiana for arrears of rent or
breaches of contract, or to any lien to which Lessor may be entitled.
If Lessee has taken steps to cure any default not curable in ten (10) days, such
additional reasonable time as is necessary to cure such default shall be granted
Lessee.
Should Lessor terminate this Lease as provided in this article, Lessor may
reenter said Leased Premises and remove all persons, or personal property,
without legal process, and all claims for damages by reason of such reentry are
expressly waived.
Lessor's failure to strictly and promptly enforce these conditions shall not
operate as a waiver of Lessor's right, Lessor hereby expressly reserving the
right to always enforce prompt payment of rent, or to cancel this Lease
regardless of any indulgences or extensions previously granted.
In the event Lessee defaults in the performance of any of the terms, covenants,
agreements or conditions contained in this Lease and Lessor places the
enforcement of this Lease, or any part thereof, or the collection of any rent
due or to become due hereunder, or recovery of the possession of the Leased
Premises in the hands of an attorney, or files suit upon the same, Lessee agrees
to pay reasonable attorney's fees incurred by Lessor.
16) RIGHT TO SHOW SIGN. Lessor shall be permitted to keep or exhibit inside the
show window, or on the exterior of the Premises a "for lease" sign for 90 days
prior to expiration of the Lease and shall have the right to enter the space at
reasonable hours for the purpose of showing the same.
17) RIGHT OF ENTRY. Lessor may enter the Premises at reasonable times to inspect
same, to make repairs and alterations, or to run pipe or electric wire, as
Lessor may deem necessary and appropriate, provided Lessor will not unduly
inconvenience Lessee's business.
18) SIGNS. Unless otherwise agreed in this Lease, Lessee shall not be permitted
to place any signs on the Premises without Lessor's prior written approval. Upon
termination of this Lease, Lessee shall remove any sign, advertisement or notice
painted on or affixed to the leased Premises and restore the place it occupied
to the condition in which it existed as of the date of this Lease. Upon Lessee's
failure to do so, Lessor may do so at Lessee's expense.
207
19) CONDITION AND UPKEEP OF PREMISES. Lessee will at Lessee's sole expense keep
and maintain in good repair the entire leased Premises including without
limitation interior walls, floors, ceilings, ducts, utilities, air conditioning,
heating, lighting, sprinkler and plumbing, termite and pest extermination, and
also including the loading dock, stairs and any parking area exclusively used by
Lessee. Lessor shall be responsible only to maintain the roof, foundations, and
outside walls (not including doors and floors or stairs). Where contractors' or
manufacturers' warranties are applicable and the Lessee advises the Lessor in
writing of the need for such repair, the Lessor, at its option, will enforce
such warranties for Lessee's benefit or assign such warranties to Lessee for
Lessee to enforce.
However, Lessor shall not be obliged to make any repair unless it shall be
notified in writing by Lessee of the need of such repair and shall have had a
reasonable period of time to make such repair and shall not be liable to make
any repair occasioned by Lessee's acts within the Premises. Lessor shall not be
liable for any damage or loss in consequence of leaks, stoppage of water, sewer
or drains or any other defects about the building and Premises, unless it shall
have failed to repair the defect within a reasonable time following written
demand of Lessee to do so.
It is specifically acknowledged that safety and replacement of the plate glass
are Lessee's responsibility, as well as keeping pipes from freezing in the
winter.
20) COMMON AREA MAINTENANCE. Lessee shall be responsible for maintaining the
common areas used in conjunction with the leased Premises in a clean condition.
Should Lessor, in its sole business judgment, decide to contract for the
services of maintaining the common areas, Lessee shall pay as additional rent
Lessee's prorata share of the cost of such services. Said additional rent shall
be paid in monthly installments of one-twelfth of the estimated annual cost
attributed to Lessee. In January of each year, Lessor shall furnish Lessee a
statement setting forth Lessee's actual prorata portion of said costs. Said
statement shall include a check or xxxx for any over or under payment for said
maintenance items and shall include, but not be limited to, all parking areas,
access roads and facilities in or at the Premises including driveways, loading
docks and areas, sidewalks, ramps, landscaped and planting areas, lighting
facilities, signs and all other areas and improvements for the general use, in
common, of Lessees, their officers, agents, employees and customers. Lessor
shall have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to all such facilities and areas;
to change truck routes provided the leased Premises are adequately
208
served by the new route; to restrict parking by Lessees, their officers, agents
and employees to designated areas; and to do and perform such other acts as
Lessor shall, in the use of its business judgment, determine to be advisable
with a view to the improvement of the convenience and use thereof by Lessees,
their officers, agents, employees and customers.
21) FIRE AND CASUALTY CLAUSE. In case the said Premises shall be so damaged by
fire or other cause as to be rendered untenantable and necessary repairs cannot
be made within 180 days, this Lease shall terminate as of the time the Premises
were rendered untenantable. However, if the damage is such that repairs can be
completed within 180 days, Lessor agrees to make such repairs promptly, and to
allow Lessee an abatement in rent for such time as the Premises remains
untenantable. If the loss occurs in the last 18 months of the original term or
extension thereof, either party may terminate this Lease effective the date of
the casualty by giving the other party written notice of such election within 30
days of the loss. In the event of partial loss, the rent shall be abated by that
proportion of the Leased Premises rendered unfit for use.
22) INSURANCE AND INDEMNITY. (a) Liability and Property Damage: Lessee shall at
all times during the full term of this Lease and during the full term of any
holdovers or other rental agreements, carry and maintain at its own cost and
expense, Broad Form Commercial General Liability Insurance against claims for
personal injury or injuries, including death and property damage occurring in,
on or about the leased Premises, such insurance to afford protection to the
limit of not less than $1,000,000.00 Dollars in respect to each person, and to
the limit of not less than $1,000,000.00 in respect to any one occurrence
causing bodily injury or death, and to the limit of, not less than $500,000.00
in respect to property damage. Lessee shall furnish Lessor with a duplicate
certificate or certificates of such insurance policy or policies and such
insurance policy shall name Lessor as an additional insured thereunder. All such
insurance shall be procured from a responsible insurance company or companies
reasonably satisfactory to Lessor and authorized to do business in the state
where the leased Premises are located and may be obtained by Lessee by
endorsement on its blanket insurance policies, provided that the insurance
company or companies are satisfactory to Lessor. All such policies shall provide
that the same may not be canceled or altered except upon ten (10) days prior
written notice to Lessor. Lessor makes no representation that the limits of
liability specified to be carried by Lessee under the terms of this Lease are
adequate to protect Lessee against Lessee's undertaking under this Section, and
in the event Lessee believes that any such insurance coverage called for under
this Lease is insufficient, Lessee shall provide, at its own expense, such
209
additional insurance as Lessee deems adequate.
(b) Fire and Extended Coverage: The Lessor shall, at all times during the full
term of this Lease, keep all improvements in and on the demised Premises insured
to the full replacement value thereof against loss by fire and extended coverage
and maintain such insurance at all times as specified herein.
Lessee shall pay each month as additional rent one-twelfth of Lessee's prorata
share of Lessor's insurance premium attributable to the full insurable value of
the improvements covered by this Lease.
Lessee is not to suffer anything to be or remain on or about the Premises nor
carry on nor permit upon the Premises any trade or occupation or suffer to be
done anything which may render an increased or extra premium payable for the
insurance of the Premises against fire and the hazards insured under extended
coverage, unless consented to in writing by the Lessor and if so consented to,
the Lessee shall pay such increased or extra premium within ten days after the
Lessee shall have been advised of the amount thereof.
(c) Placement of Insurance: All of the aforementioned policies of insurance
shall be written and maintained with responsible insurance companies duly
authorized and licensed to do business in and to issue policies in the State of
Louisiana. The policies providing for the protection required in subparagraph
(a) hereof may remain in the possession of Lessee, provided, however, that
Lessee furnish satisfactory evidence to Lessor or the Lessor's mortgagee that
such policy or policies fulfill the requirements of this subparagraph. Lessee
agrees to pay all premiums in full as they become due.
(d) Voiding Insurance: Lessee will not permit the herein demised Premises to be
used for any purpose which would render the insurance thereon void.
(e) INDEMNITY: Lessee shall indemnify defend (with counsel approved by Lessor)
and hold Lessor and Lessor's affiliates, shareholders, directors, officers,
employees and agents harmless from and against any and all claims, judgements,
damages (including consequential damages), penalties, fines, liabilities,
losses, suits, administrative proceedings, costs and expense of any kind or
nature, known or unknown, contingent or otherwise, which arise out of or in
anyway related to the Premises caused by or resulting from the acts or omissions
of Lessee, its agents, employees, representatives, invitees, licensees,
sublessees, customers or contractors during or after the term of this Lease
(including, but not limited to attorneys', consultants, laboratory and expert
fees and including without limitation, diminution in the value of the Building
or Property, damages for the loss or restriction on use of rentable or usable
space or of any amenity of the Building or
210
Project and damages arising from any adverse impact on marketing of space in the
Building), including but not limited to those arising from or related to the
use, presence transportation, storage, disposal, spill, release or discharge of
Hazardous Materials on or about the Premises.
23) LESSOR'S LIABILITY. Should Lessor incur any liability arising under the
terms of this Lease Agreement, subject liability shall be limited only to the
interest of Lessor in the building and the land and the proceeds of any
insurance carried by Lessor and collectible with respect to any such damages and
Lessor shall not be personally liable for any deficiency. In the event the
building is damaged or destroyed, any liability of Lessor for any damages
suffered by Lessee shall be limited to the interest of Lessor in the building,
the land, and the proceeds of insurance from such damage or destruction to the
extent proceeds of such insurance are not used to rebuild or repair the
building, and Lessor shall not be personally liable for any deficiency.
24) UTILITIES. All utility charges on and attached to the Premises shall be paid
by Lessee, including cost of heat, water, electric current, gas garbage pickup,
sewer and special fees. Lessee shall maintain an active electrical connection
through the duration of this Lease with the electric utility company. In the
event the Premises constitute a portion of a multiple occupancy building and a
utility is not separately metered, Lessee will pay a proportionate share of the
cost for that utility, such share calculated on the basis of the space occupied
by Lessee as compared to the entire leased space contained in the building.
25) ATTORNEY'S FEES AND INTEREST. In the event it becomes necessary for Lessor
to employ an attorney to enforce collection of the rents agreed to be paid, or
to enforce compliance with any of the covenants and agreements herein contained,
Lessee shall be liable for reasonable attorney's fees, costs and expenses
incurred by Lessor.
26) NOTICE. Any notice provided for herein will be deemed given when deposited
by certified mail, or actually delivered in person to the parties or their
designated agents at the following addresses or at such other addresses as they
may from time to time direct.
LESSOR: EQUITABLE LIFE ASSURANCE SOCIETY OF THE U.S., X/X XXXXXX X.
XXXXXXXXXXX, 0000 XXXXXXXXX XXX., X.X., XX 00000.
211
LESSEE: CHAMPION INDUSTRIES, INC., C/O XXXX X. XXXXXX, V.P. & CONTROLLER, 0000
XXXXX XXXXXX, XXXXXXXXXX, XX 00000
27) CONDEMNATION. If the leased Premises be subjected to any eminent domain
proceedings, the Lease shall terminate if all of the leased Premises are taken
or if the portion taken is so extensive that the residue is wholly inadequate
for Lessee's purpose. If the taking is partial, then Lessee's rentals shall be
reduced in the proportion which space taken bears to the space originally
leased. In such condemnation proceedings Lessee may claim compensation for
moving expenses and for the taking of any removable installations which by the
terms of this Lease Lessee would be permitted to remove at the expiration of
this Lease, if such award is separately allowed by the condemning authority, but
Lessee shall be entitled to no additional award, it being agreed that all
damages allocable to full fee simple ownership of the entire leased Premises
shall in any event be payable to Lessor.
28) QUIET POSSESSION. Lessor agrees to warrant and defend Lessee in its quiet
and peaceful possession of the Premises so long as the Lease is not in default.
29) REPAIRS AND CLEANLINESS. Lessee shall immediately repair any damages caused
by Lessee that threaten or weaken the structure or detract from the appearance
of the Premises. Lessee shall also maintain a high degree of neatness and
cleanliness in the building and on adjacent grounds, including loading docks,
stairs, parking lots and rail sidings, if any, alongside and in the vicinity of
the building occupied by Lessee. If Lessee does not correct the damages and/or
clean the Premises within five (5) days of written notification by Lessor,
Lessor may proceed with repairs and/or cleanup at Lessee's expense.
30) TRASH. Lessee shall not store merchandise or vehicles or leave trash outside
the leased Premises. All trash shall be kept in metal containers with metal tops
which must be painted, and their design and location on the Premises must be
approved by Lessor. Should Lessee be in default in the requirements of this
provision, Lessor may, after notice to Lessee, remedy such default at Lessee's
expense, and such expense shall be treated as additional rental due under this
Lease by Lessee.
31) LEASE HOLDOVER. Should Lessee remain on the Premises after expiration of
this Lease Agreement, Lessor has the option to interpret such actions as
creating a month-to-month lease at a rental one hundred per cent (100%) higher
than that payable for the last month of the Lease term, or to
212
consider the holding over a trespass. Only a new signed lease or extension
agreement shall deprive Lessor of the choice of action.
32) ENTIRETY OF UNDERSTANDING IN WRITTEN LEASE. It is agreed that the entire
understanding between the parties is set out in the Lease and any riders which
are hereto annexed, that this Lease supersedes and voids all prior proposals,
letters and agreements, oral or written, and that no modification or alteration
of the Lease shall be effective unless evidenced by an instrument in writing
signed by both parties. The law of Louisiana where the Lease Premises are
situated shall apply.
33) WAIVER. Failure of Lessor to declare any default immediately upon occurrence
thereof or delay in taking any action in connection therewith shall not waive
such default, but Lessor shall have the right to declare any such default at any
time; no waiver of any default shall alter Lessee's obligations under the Lease
with respect to any other existing or subsequent default.
34) BINDING ON HEIRS, ETC. It is further agreed by the parties to this Lease
that all of the covenants and agreements enumerated herein shall be binding upon
both parties' legal representatives, heirs and assigns throughout the life of
this instrument.
35) AMERICANS WITH DISABILITIES ACT ("ADA"). Lessee hereby represents that it is
not a public accommodation, as defined in the ADA.
The Lessor shall take whatever steps are necessary to cause the common areas of
the building as hereinafter defined, to meet the requirements of the Title III
of ADA.
The Lessee at its sole cost and expense shall be solely responsible for taking
any and all measures which are required to comply with the requirements of Title
I and/or Title III of the ADA within Lessee's leased Premises. Any Alterations
to the Premises made by Lessee for the purpose of complying with the ADA or
which otherwise require compliance with the ADA shall be done in accordance with
this Lease; provided, that Lessor's consent to such Alterations shall not
constitute either Lessor's assumption, in whole or in part, of Lessee's
responsibility for compliance with the ADA, or representation or confirmation by
Lessor that such Alterations comply with the provisions of the ADA.
Lessee shall indemnify the Lessor for all claims, damages, judgments, penalties,
fines, administrative proceedings, costs, expenses and liability arising from
Lessee's failure to comply with any of the requirements of Title I and/or Title
213
III of the ADA within Lessee's leased Premises.
Lessor shall indemnify the Lessee for all claims, damages, judgments, penalties,
fines, administrative proceedings, costs, expenses and liability arising from
Lessor's failure to comply with Title III of the ADA within the common areas.
Common areas shall mean all portions of the development not covered by the
buildings, including all service roads, sidewalks, driveways, entry's and
parking areas not primarily used by Lessee.
36) CARPET PROTECTORS. Lessor requires the use of carpet protectors at all desk
areas in order to maintain the carpet in good condition and prevent abnormal
wear.
37) SUBROGATION. Neither the Lessor nor the Lessee shall be liable to the other
for the loss arising out of damage to or destruction of the leased Premises, or
the building or improvements of which the leased Premises are a part thereof,
when such loss is caused by any of the perils which are or could be included
within or are insured against by a standard form of fire insurance with extended
coverage, including sprinkler leakage insurance, if any. All such claims for any
and all loss, however caused, hereby are waived. Said absence of liability shall
exist whether or not the damage or destruction is caused by the negligence of
either Lessor or Lessee or by any of their respective agents, servants or
employees. It is the intention and agreement of the Lessor and the Lessee that
each party shall look to his respective insurance carriers for reimbursement of
any such loss, and further, that the insurance carriers involved shall not be
entitled to subrogation under any circumstances against any party to this Lease.
Neither the Lessor nor the Lessee shall have any interest or claim in the
other's insurance policy or policies, or the proceeds thereof, unless
specifically covered therein as a joint assured.
Each party to this Lease agrees immediately to give to each insurance company,
written notice of the terms of the mutual waivers contained herein, and to have
the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverage by reason of the mutual waivers contained
in this Section.
38) SUBORDINATE TO MORTGAGE. At the option of Lessor's mortgagee, the Lessee
agrees to subordinate this Lease to any mortgage, deed of trust or encumbrance
which the Lessor may have placed, or may hereafter place, on the Premises.
Lessee agrees to execute, on demand, any instrument which may be deemed
necessary or desirable to render such mortgage, deed of trust or
214
encumbrance, whenever made, superior and prior to this Lease.
39) RELOCATION. Lessor reserves the right, at its option, to require Lessee to
move its Leased Premises, and relocate to other space in this property. If
Lessor exercises this option, it shall give Lessee three (3) months prior
written notice; and, Lessor shall provide Lessee with such other space as is
equal to or larger than the Leased Premises, and of the same approximate
quality. Lessor shall pay all actual expenses of such relocation, including
providing Lessee with comparable tenant finish improvements. In such event of
relocation, this Lease shall otherwise continue in full force and effect,
without interruption, as to all of its terms and conditions.
40) LEASING COMMISSION. Lessor and Lessee each warrant and represent that it had
no dealings, with respect to the Demised Premises or this Lease, with any broker
or real estate dealer except for Xxxxxx X. Xxxxxxxxxxx, as agent for Lessor. It
is understood and agreed that Lessor shall be responsible for the payment of any
and all brokers and/or dealers commissions and fees in connection with this
transaction including those commissions and fees which may be earned by Xxxxxx
X. Xxxxxxxxxxx. The Commission Agreement, is attached hereto and forms a part
hereof.
41) It is understood and agreed that this Lease Agreement shall not be binding
until and unless all parties have signed it.
IN WITNESS WHEREOF, the parties have set their hands to duplicate original
copies as to the day and year above written.
LESSOR:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
WITNESSES:
/S/ XXXXXXX X. XXXXXXXX
------------------------
By: Xxxxxxx X. Xxxxxxxx
Investment Officer
LESSEE:
CHAMPION INDUSTRIES, INC. D/B/A
UPTON PRINTING
215
/S/ XXXXX X. XXXXXX
------------------------
By: Xxxxx X. Xxxxxx, Vice President &
Controller for Champion Industries, Inc.
216
SCHEDULE "A"
Space is leased "as-is" with the exception of the following improvements to be
provided by Lessor:
1) Provide separate electric meter;
2) Close in all openings in existing fire wall between tenants; and,
open wall inside office to expose existing glassfront panel.
3) Demolish portion of office to provide access to one dock-high
loading door; raise existing lighting to warehouse roof rafters
and provide circuit wiring from panel.
4) Place all air-conditioning & heating units, plumbing and
electrical fixtures, and doors in good working condition;
Lessor will provide the following improvements at Lessee expense. Lessee to give
Lessor a check in the amount of $1,950.00, with the signing of this Lease, to
cover the cost of these items.
5) ELECTRICAL. Install (5) duplex recepticles in office and warehouse
area (locations by Lessee); Remove (2) 220 volt circuits and
wiring from office walls.
6) FINISH. Install (1) six foot, double-door in office wall (location
by Lessee).
217
