Exhibit Section
Exhibit (10.3)
THIS LEASE IS NON-CANCELABLE FOR THE TERM INDICATED.
PLEASE READ THIS AGREEMENT IN ITS ENTIRETY BEFORE SIGNING.
AGREEMENT NO.
000-0000000-000
COMMERCIAL LEASE AGREEMENT
LESSEE Champion Industries, Inc. VENDOR Southeastern Offset Equipment
(Lessee hereby 0000 0xx Xxxxxx 0000 Xxxxxxx 00 Xxxx
warrants that the Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, X.X. 00000
tradestyle name used
in this lease to refer
to the lessee's company
is true and correct)
Upton Printing Company
EQUIPMENT LOCATION (If different from billing address above): 000 Xxxxxxxxxx Xx., Xxx Xxxxxxx, XX
QUANTITY DESCRIPTION: MODEL NO., CATALOG NO. OR OTHER IDENTIFICATION
(1) Used Heidelberg Speedmaster, mode1 102-2P, Serial Number 537775.
SCHEDULE OF PAYMENTS DURING ORIGINAL TERM OF LEASE ADVANCE RENTALS PAYABLE AT THE SIGNING OF LEASE
$21,588.90
Number of Months 48 Monthly Payments $10,794.45 Representing the first month
and last 1 month's rent
GUARANTY
Commence Lessor to enter into this Lease the undersigned
unconditionally guarantees to Lessor the prompt payment PERSONAL GUARANTY
when due of all Lessee's obligations to Lessor under the (READ THIS SECTION CAREFULLY
Lease. Lessor shall not be required to proceed against BEFORE SIGNING)
Lessee or the Equipment or enforce any other remedy before
proceeding against the undersigned. The undersigned agrees
to pay all attorney's fees and other expenses incurred by
Lessor by reason of default by the Lessee or the undersigned.
The undersigned waives notice of acceptance hereof, and of all
other notices or demands of any kind to which the undersigned
may be entitled. The undersigned consents to any extensions or
modification granted to Lessee and the release and/or compromise
of any obligations hereunder. This is a continuing Guaranty and
shall not be discharged or affected by death of the undersigned,
shall bind the heirs, administrators, representatives, successors
and assigns, and may be enforced by or for the benefit of any
assigned or successor of Lessor. The undersigned consents to the
jurisdiction of the federal or State courts located in the state
and county in which is located the chief executive office of the
holder of the Lessor's interest in this lease.
Signature X____________________________ Signature X____________________________
(no title) (Personal Guarantor) (no title)
Res. Address X________________________ Res. Address X________________________
Res. Phone X________________________ Res. Phone X________________________
Date X________________________ Date X________________________
Exhibit (10.3)-p1
Exhibit Section
Exhibit (10.3)
CERTIFICATE OF ACKNOWLEDGMENT AND ACCEPTANCE OF LEASED EQUIPMENT Signatures
Lessee hereby acknowledges receipt of the Equipment described in its Lessor Leasing One Corporation
Lease with Lessor (the Lessor "Equipment") and accepts the Equipment -----------------------
after full inspection therefore as satisfactory for all purposes of
the Lease. Signature
By____________________Date_______
Furthermore, Lessee acknowledges that the purchase order and or Lessor
equipment invoice from the vendor has been reviewed for accuracy and Title
_________________________________
completeness.
Signature X /s/ Xxxx X. Xxx Lessee Champion Industries, Inc.
--------------- -------------------------
Title X Vice President and CFO Signature X /s/ Xxxx X. Xxx Date 4/19/01
---------------------- ---------------- -------
Lessee
Delivery Date X 4/19/01 Title X Vice President and CFO
------- ----------------------
See continuing pages for the terms and conditions which are part of this lease.
IMPORTANT: Vendor and its representatives are not the agents of the Lessor.
This lease is for business purposes only-for commercial entities.
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from
the Lessor, all machinery, equipment and other property (collectively the
"Equipment" and individually the "item", or "Item of Equipment") described in
(a) the schedule executed by the parties concurrently herewith and made a part
hereof, and (b) any schedule or schedules hereinafter executed by the parties
hereto and made a part hereof (collectively the "Schedules" and individually,
a "Schedule").
2. TERM. The term of this lease with respect to each item of Equipment,
(the Term), shall commence on the date which is described on the Lease
Agreement and or, any Schedule attached hereto, and shall date on the last day
of the period of months so stated in the Lease Agreement or Schedule, unless
earlier terminated.
3. RENT. The rent for each item of Equipment during the term (the
"Rent") shall be payable, in the amounts and at the times and place set forth
in the Schedule, or to such other person, or at such other place as Lessor may
from time to time designate in writing .
4. ADDITIONAL PAYMENT. Lessee shall pay, in addition to rent, any
amounts as set forth on a Schedule B, (if any), on the dates described
therein.
5. NET LEASE: Obligation to Pay Rent Unconditional. This is a net
lease. All rent and other sums payable by Lessee including the payments due
under Schedule B, (it any), or as defined in the Lease Agreement, shall be
paid promptly when due without notice or demand of any character. Lessees
obligation for the payment of rent is and shall be absolute and unconditional
and shall not be subject to any reduction, offset, counter-claim, abatement,
suspension, deferment or diminution for any reason whatsoever, including
without limitation any destruction or damage to the Equipment or any item
thereof, any limitation of or interference with the use or possession of the
Equipment, or any Item or any component thereof (including any such limitation
or interference arising out of any defect in Lessor's title to the Equipment),
condemnation or requisition of the Equipment or any component thereof, any
termination of this lease prior to the expiration of the term, or any other
occurrence or circumstance (whether similar or dissimilar to those enumerated)
which prevents Lessee from using, possessing or enjoying the Equipment Lessee
waives (a) any and all existing and future claims and offsets against Rent or
other payments due to Lessor under this Lease (b) all rights now or hereafter
conferred by statute or otherwise to terminate or surrender this Lease or the
Equipment or any component of the Equipment, and (c) any abatement,
suspension, determent, diminution or reduction of any Rent or other sums
payable hereunder on account of any such occurrence.
Exhibit (10.3)-p2
Exhibit Section
Exhibit (10.3)
6. LESSEE'S INSPECTION: Conclusive Presumptions. Lessee shall inspect
each Item of Equipment within forty-eight (48) hours after receipt thereof.
Unless within such period of time Lessee gives written notice to Lessor
specifying any detect in or any other proper objection to the Equipment,
Lessee agrees that it shall be conclusively presumed, as between Lessor and
Lessee, that Lessee has fully inspected and acknowledged that the Equipment is
in good condition and repair, and that Lessee is satisfied with and has
accepted the Equipment in such good condition and repair and as satisfactory
in all aspects for the purposes of this Lease.
7. USES AND LOCATION. (a) Lessee shall use the Equipment in a careful
and proper manner, only in the normal and ordinary course of Lessee's
business, and Lessee shall comply with, and shall use the Equipment in
accordance with, (1) all state, federal and local laws, rules, regulations,
statutes and ordinances applicable to Lessor relating to the use, possession,
operation, licensing, registration, maintenance or inspection of the
Equipment, (2) any insurance policies in effect with respect to the Equipment,
(3) any warranties of any manufacturer with respect to the Equipment or any
component thereof, and (4) the operating instructions furnished by
manufactures or other suppliers of the Equipment.
(b) Lessor shall have the right to inspect the Equipment and observe
its use during normal business hours and any other reasonable time and to
enter into and upon the premises where the Equipment may be located for such
purpose. Lessee shall maintain possession of each Item of Equipment at, and
shall not remove any item of Equipment from, its location as shown on the
Schedule (if any) or as defined the lease without Lessors prior written
consent. Lessee shall give Lessor immediate notice of any attachment or other
judicial process affecting any Item of Equipment and whenever requested by
Lessor of the exact location of each Item of Equipment.
8. TITLE AND RETURN. (a) The Equipment is, and at all times shall
remain, the sole and exclusive property of Lessor. Lessee shall have no
right, title or interest in the Equipment except as expressly set forth in
this Lease.
(b) Upon expiration or earlier termination of this Lease with respect
to each Item of Equipment, unless there has been a Casualty Occurrence (as
defined in paragraph 14 below) to such Item, Lessee shall return such Item of
Equipment to Lessor in good repair, condition and working order, ordinary wear
and tear resulting from proper use thereof alone excepted, by packing,
creating and loading such Item of Equipment at Lessee's cost and expense on
board such carrier as Lessor and Lessee shall agree and shipping the
Equipment, freight prepaid and, insured to any destination specified by Lessor
which is located in the continental United States. Lessee agrees to pay to
Lessor, upon return of the Equipment, a re-stocking fee of 7.5% of the
original cost.
9. MARKING. It at any time Lessor supplies Lessee with labels, plates
or other marketing, stating that the Equipment is owned by Lessor, Lessee
shall affix such markings to and keep them on a permanent and prominent place
on the Equipment. Lessee shall not allow the name of any person, association
or corporation to be placed on any Item of Equipment as designation that might
be interpreted as a claim to ownership, provided that Lessee may cause any
Item of Equipment to be lettered with its corporate name and/or corporate
symbol as an appropriate and convenient way to identify Lessee's interests
under this Lease.
10. MAINTENANCE AND REPAIRS. Lessee, at its own cost and expense, shall
(a) maintain and keep the Equipment and all components thereof in good repair,
condition and working order and in good condition as to appearance and
mechanical performance, ordinary wear and tear from authorized use excepted,
(b) make all reasonable and necessary repairs, (c) purchase replacements for
and replace worn or defective components of the Equipment, so as to keep the
Equipment in good mechanical and wrong order, and (d) cause the Equipment and
all components thereof to meet the applicable standards of any applicable
governmental agency with jurisdiction over Lessor, Lessee or the Equipment
whether or not such requirements, by their terms, are normally imposed upon
Lessee. Lessee shall pay for any and all repacement parts and components
required by this section, and all such replacement parts and components shall
be free and clear of all liens and encumbrances. Title to all such replacement
parts and components shall immediately pass to Lessor upon installation
thereof.
11. ALTERATIONS. Without the prior written consent of Lessor, Lessee
shall not make any alterations, additions or improvements to the Equipment
except that Lessee shall make any alteration or addition to the Equipment
which is required by any governmental authority having relevant jurisdiction,
if such alteration or addition is required to comply with health, safety or
environmental standards. All additions and improvements of whatsoever kind or
nature made to the Equipment shall belong to and become the property of Lessor
upon the expiration, or earlier termination of this lease.
Exhibit (10.3)-p3
Exhibit Section
Exhibit (10.3)
12. NO WARRANTIES BY LESSOR. Lessee has selected both (a) the Equipment
and (b) the manufacturer or other supplier from whom lessor is to purchase it.
Lessor makes no warranty, expressed or implied, as to any matter whatsoever,
including without limitation the design or the condition of the equipment, its
merchantability or its fitness for any particular purpose, and, as to lessor,
lessee leases the Equipment "as is". Lessor has only the title to the
Equipment that was conveyed to Lessor by Lessor's predecessor in title, and
that title is free from liens and encumbrance created by Lessor, Lessor makes
no other warranty with respect to title to the Equipment. If any item of
Equipment or all the Equipment is not property installed, does not operate as
represented or warranted by its manufacturer, or is unsatisfactory for any
reason, Lessee shall make any claim on account thereof directly against which
manufacturer and shall. nevertheless, pay Lessor all rents payable under this
Lease. Lessor hereby agrees to assign to Lessee, solely for the purpose of
making and prosecuting any such claim, all of the rights which Lessor has
against such Manufacturer for breach of warranty or other representation
representing the Equipment. Lessor shall not be liable for any direct or
consequential damages incurred by Lessee as a result of any branch of warranty
or representation with respect to the Equipment and Lessor shall not be liable
to Lessee for loss of use of the Equipment, or for any interruption in
Lessee's business occasioned by Lessee's inability to use the Equiprnent, for
any reason whatsoever. The provisions of this paragraph are intended to be a
complete exclusion and negation of any express or implied warranties by Lessor
with respect to the Equiprnent, whether arising under the Uniform Commercial
Code or under any other law now or hereafter in effect, or otherwise.
13. INSURANCE. Lessee shall provide, maintain and pay for (a} insurance
against a loss or theft of or damage to the Equipment for the amount of the
applicable Casualty Payment from time to time, naming Lessor as a loss-payee
or mortgagee, and (b) public liability and property damage insurance, naming
Lessor as an additional insured. All such insurance which Lessee is required
by this Lease to maintain shall provide that any loss thereunder shall be
payable notwithstanding any action, inaction, breach or warranty or condition,
breach of declarations, misrepresentation or negligence of Lessee, its
employees or agents. Each such policy shall contain an agreement by the
insurer that notwithstanding lapse of any policy for any reason, or rights of
cancellation by the insurer or any cancellation by Lessee, such policy shall
continue in full force for the benefit of the Lessor, for at least thirty (30)
days after written notice thereof to Lessor, and no alteration in any such
policy shall be made except upon thirty (30) days written notice of such
proposed alteration to Lessor and written approval by Lessor. If lessee fails
to acquire any policy of insurance required to be maintained pursuant to this
paragraph, or fails to renew or replace any such policy at least twenty (20)
days prior to the expiration thereof, or fails to keep any such policy in full
force and effect, Lessor shall have the option (but not the obligation) to pay
the premiums on any such policy of insurance or to procure new insurance in an
amount type, coverage and terms satisfactory to Lessor. Any amounts paid
therefore by Lessor shall be immediately due and payable to Lessor by Lessee
upon demand by Lessor. No exercise by Lessor of such option shall in any way
affect the provisions of this Lease, including the provisions that failure by
Lessee to maintain the prescribed insurance shall constitute an Event of
Default. Lessee hereby assigns to Lessor al sums which become payable under
any insurance covering the Equiprnent, directs any insurer to pay any and all
such proceeds to Lessor, and authorizes the Lessor to act as Lessee's
attorney-in-fact to make claim for, receive payment of, and execute and
endorse all documents, checks or drafts for loss or damage under any such
Insurance Policy. The proceeds of such insurance, at the option of the Lessor,
shall be applied (1) toward the replacement or repair of the Equipment or (2)
toward payment of the obligations of Lessee hereunder.
14. CASUALTY. For purposes of this Lease, "Casualty Occurrence" shall
mean any of the following events:
(a) The Equipment or any item of Equipment no longer operates in the
manner and for the purposes originally contemplated for any reason, and it is
not made so to operate by repairs or installation of replacement parts in
accordance with paragraph 10 of this Lease within sixty (60) days from the
time the Equipment ceased to operate.
(b) Any Item of Equipment is requisitioned, condemned or taken over by
any governmental authority under the power of eminent domain or otherwise for
a definite period which exceeds the then remaining term of this Lease, or for
an indefinite period of time.
(c) Any Item of Equipment suffers any damage which, in good faith
judgment of the Lessor would require the expenditure of an amount equal to or
greatest than fifty percent of equipment cost for that Item of Equipment (as
shown on the Schedule, if any) to repair or restore it to its condition and
operating capacity immediately prior to suffering such damage.
(d) Any Item of Equipment is lost, stolen or commandeered.
Exhibit (10.3)-p4
Exhibit Section
Exhibit (10.3)
15. CASUALTY PAYMENT. If all or any item of Equiprnent suffers a
Casualty Occurrence, Lessee shall promptly notify Lessor within (3) three
business days of such an event. Lessee shall pay Lessor, on the date of the
next schedule lease payment (a) all rents, taxes, late fees due prior to such
an event; (b) an amount equal to the Stipulated Loss Value as stated on the
Stipulated Loss Schedule as prepared by Lessor if applicable; (c) any
insurance proceeds or portions thereof necessary to satisfy all monies due
Lessor. Upon timely remittance of all monies due Lessor, this lease shall
terminate and Lessee thereupon shall become entitled to such item or items of
Equipment, as is-where is, without warranty, express or implied.
16. TAXES AND GENERAL COVENANTS. Lessee agrees to pay when due, all
sales, use, property, excise, license and registration, duties, ad valorem and
assessment charges or fees of any nature whatsoever (Except for any taxes
based upon Lessors net income) however designated, now and hereafter imposed
by any governmental entity, whether based upon the rent or the Equipment or
the purchase delivery, ownership, easing use, possession or return thereof.
Any fees, taxes or other charges paid by Lessor upon failure of Lessee to make
such payments shall at Lessor's demand become immediately due from Lessee to
Lessor. Lessor shall not be obligated to transfer title to the Equiprnent
until proof has been provided by Lessee that such fees, taxes or other charges
have been paid.
Lessor reserves the right, upon notice to Lessee, to pay property taxes
imposed on Equipment, which is leased pursuant to a fair market value "true
lease." If so paid, Lessor will xxxx Lessee for the tax, which shall become an
obligation of Lessee under this lease.
(b) Lessee shall keep the Equipment, free and clear of all levies,
liens and encumbrances. Upon Lessor's request, Lessee shall execute,
acknowledge and deliver in recordable form any documents or other instruments
with respect to the Equipment or this Lease as the Lessor may consider
necessary or desirable to comply with the filing or recording requirements of
any jurisdiction.
(c) Within fifteen (15) days of availability, and in any event within
one hundred twenty (120) days after the end of each fiscal year, Lessee shall
furnish to Lessor a balance sheet of Lessee and the related statement of
operations, changes in financial position and profit and loss, showing sources
and uses of income for which fiscal year, all in reasonable detail and stating
in comparative form the figures as of the end of the year and for previous
corresponding period. If requested by Lessor, such financial statements shall
be audited, or certified by an independent certified public accountant
satisfactory to Lessor, accompanied audit opinion (in form and substance
satisfactory to Lessor) of such certified public accountant, and must be
signed by an officer of Lessee.
17. REPRESENTATION AND WARRANTIES OF THE LESSEE. The lessee represents and
warranties as follows:
(a) If Lessee is a corporation, it is duly incorporated, validly
existing, and in good standing under the laws of the state of its
Incorporation. If lessee is a partnership, it is a general or limited
partnership duly and validly existing under the laws of the same of the state
of its organization. Lessee is duly qualified to do business in, and, if
necessary, is in good standing under the laws of the state where the Equipment
will be located, and indicated in the Schedule or as defined in the lease.
(b) Lessee has full right, power and authority to carry on its business
as now conducted and to hold property under lease and to enter into and
perform its obligation under this lease.
(c) The Lease has been duty authorized, executed and delivered by the
Lessee, and is a legal, valid and binding obligation of Lessee, enforceable
against Lessee in accordance with its terms.
(d) Lessee's execution and delivery of this Lease and its performance
of its obligations hereunder (1) will not be inconsistent with the Lessee's
partnership certificate or articles of Incorporation or bylaws (as the case
may be), (2) do not and will not contravene any law, governmental rule or
regulation, judgment or order applicable to the Lessee, and (3) do not and
will not contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument to which Lessee is a part of
which is bound.
(e) Neither the consent or approval of, nor the giving of notice to,
registration with or taking an, action in respect of or by any federal, state
or local government agency, or instrumentality is required with respect to the
Lessee's execution, delivery and performance of this lease.
(f) No material adverse change in the condition, financial or
otherwise, of Lessee has occurred from that existing on the date of the
financial statements delivered by Lessee to Lessor.
Exhibit (10.3)-p5
Exhibit Section
Exhibit (10.3)
(g) Lessee has disclosed to Lessor all actions, suits, litigations,
investigations, or proceedings of or before any court, arbiter or governmental
authority that is pending or, to the knowledge of Lessee, asserted which would
have a material affect on the business operations, financial conditions,
properties or assets of Lessee.
18. INDEMNITY.
(a) Lessee shall indemnity against, and hold Lessor harmless from, any
and all claims, actions, damages (including reasonable attorney's fees),
obligations, liabilities and liens (including any of the foregoing arising or
imposed without Lessor's fault or negligence, or in connection with latent or
other defects or under the doctrine of "strict liability"), imposed or
incurred by or asserted against Lessor or its successors or assigns, arising
out of the manufacture, purchase, lease, possession, operation, condition
return or use of the Equipment, or by operation of law. Lessee shall give
Lessor prompt written notice of any matter hereby indemnified against and
agrees that upon written notice by Lessor of the assertion of such a claim,
action, damage, obligation, liability or lien, Lessee shall assume full
responsibility for the defense thereof. This paragraph 18 shall survive the
expiration or other termination of this Lease.
(b) This Lease has been entered into on the basis that Lessor shall be
entitled, with respect to each item of Equipment, to such deductions, credits
and other benefits as are provided by the United States Internal Revenue Code
(of 1986) as it may have been amended to the date hereof (the "Code"), to an
owner of property (herein which benefits are called "Tax Benefits"), including
without limitation (A) depreciation deductions for cost recovery allowed
pursuant to Section 168 of the Code of Equipment Cost of each Item of
Equipment, (B) deductions with respect to interest payable with respect to any
indebtedness incurred by Lessor in connections with the acquisition of the
Item of Equipment, and (C) amortization of expenses or costs incurred by
Lessor in acquiring the Equipment of this Lease.
(2) Notwithstanding anything to the contrary contained in this Lease,
Lessee represents and warrants that (A) at the time Lessor becomes the owner
of the Equipment and at the time the Equipment becomes subject to this Lease,
the Equipment will be property which is eligible for the depreciation
deductions allowed by Section 168 of the Code, (B) Lessor's adjusted basis in
the Equipment will equal or exceed the Equipment Cost (as defined in the
equipment invoice(s)), (C) Lessee shall maintain sufficient records to verify
the facts represented in this subparagraph, and upon request of Lessor, Lessee
shall provide to Lessor, written records establishing such facts, (D) each
item of Equipment is either 3,5,7 or 10 year property, as defined by the Code.
(3) The Lease has also been entered into on the following assumptions
(the "Assumptions"): (A) Lessee will not, at any time during the term of the
Lease, use or fail to use any of the Equipment in such a way or in such
locations as to disqualify it as property eligible for the depreciation
deductions allowed by Section 168 of the Code; (B) for federal income tax
purposes all amounts includable in, and all deductions allowable from Lessor's
gross income with respect to the equipment will be treated as derived from or
allocated to sources within the United States; (C) there will not be included
in Lessor's gross income for federal income tax purposes any amount of any
addition, modification or improvement of the Equipment or any item of
Equipment by Lessee; (D) none of the Equipment is or will be "limited use
property" as that phrase is defined in Revenue Procedure 76-30, 1976-2 C. B.
647; and (E) Lessor anticipates receiving a profit from the transaction apart
from the value of or benefits obtained from the tax deductions, allowances,
credits, and other tax attributes arising from the Lease and Lessor's
ownership of the equipment.
(4) If for any reason or in any circumstances whatsoever, except as
specifically set forth below, any of the assumptions shall fail to occur, any
of Lessee's enjoyment thereof delayed so that Lessor's After Tax Yields (as
defined below) shall be reduced as a result of such occurrence so that they
are less than the Expected Yields (as defined below), (herein, a "Loss of Tax
Benefits") then:
(A) Lessee shall pay to Lessor, on each succeeding date on which an
Installment of Rent is due, after written notice to Lessee by Lessor of which
loss of Tax Benefits, such amounts as after deduction of all taxes required to
be paid by Lessor, thereon, shall cause Lessor's after tax economic and
accounting yields and cash flows (computed on the same assumptions, including
without limitation the tax rates utilized by Lessor in originally evaluating
this transaction) (the "After Tax Yields") to equal the after tax yields that
would have been realized by Lessor if Lessor had been entitled to utilize all
other Tax Benefits as and when original contemplated (the "Extended Yields"),
and the Expected Yields had not been reduced
(B) In addition to the payments required by subparagraph (A) of this
subparagraph (4), Lessee shall pay to Lessor upon demand (i) an amount which,
after deduction of all taxes required to be paid by Lessor then it shall be
equal to the amount of interest and penalties (including, without limitation,
any additions to tax because of underpayment of eliminated tax)
Exhibit (10.3)-p6
attributable to such Loss of Tax Benefits, which may be assigned against
Lessor by the United States of America, and (ii) all expenses (including,
without limitation, reasonable attorney's fees and court costs) incurred by
the Lessor in contesting whether through administrative proceedings within the
Internal Revenue Service or in any court of competent jurisdiction the Loss of
Tax Benefits.
(C) Lessee and Lessor shall amend the Lease to increase the Stipulated
Loss Values, it applicable, so as to preserve Lessor's Expected Yields.
(5) A Loss of Tax Benefits shall be deemed to have occurred upon the
earliest of (A) issuance of a written opinion by Lessor's counsel that there
has been (or upon the occurrence of a specified event, will be) a Loss of Tax
Benefits, or (D) agreement with the United States Internal Revenue Service by
the Lessor with respect to a Loss of Tax Benefits, or (C) payment of taxes,
interest or penalties with respect to a Loss of Tax Benefits, or (D) filing by
Lessor of a return which reflects a greater amount of tax owing, or a lesser
amount of refund, as a result of Loss of Tax Benefits, or (E) any court
decision (including a decision of the tax court of the United States) which is
not appealed with respect to a Loss of Tax Benefits, or (F) the happening of
any event which causes a Loss of Tax Benefits, or (G) Lessor's receipt from a
taxing authority of preliminary notice of deficiency or a statutory notice of
deficiency with respect to a Loss of Tax Benefits.
(6) Lessee shall not be obligated to pay any reimbursement for loss of
Tax Benefits required in this lease to the extent that the cause of the Loss
of Tax Benefits results solely from one or more of the following events: (A) a
disqualifying disposition due to the sale of the equipment or the Lease
thereof by Lessor prior to and not in connection with or as a result of any
event of default; (B) failure by Lessor to claim on a timely basis the tax
benefits in Lessor's tax return; (C) a failure of Lessor to have sufficient
liability for tax to utilize fully the tax benefits; and (D) a foreclosure of
any person holding through Lessor a 1ien on the equipment which foreclosure
results solely from an act of Lessor; (E) any act, error or omission by Lessor
in the preparation and timing of any tax returns; or (F) the happening of a
casualty occurrence and payment of a casualty payment pursuant to paragraph 15
of this Lease.
(7) Lessee agrees that neither it nor any affiliate of Lessee or any
permitted successor, or sublessee or assignee or Lessee (the "Lessee Group"),
directly or indirectly, will at any time take any action, or file any returns
or other documents inconsistent with the foregoing, and Lessee and the members
of the Lessee group shall file such returns, take such actions and execute
such documents as may be reasonable and necessary to provide Lessor with the
Tax Benefits.
(8) All of Lessor's rights and privileges arising out of this paragraph
18 shall survive the expiration or other termination of this Lease. Any
amounts required to be paid under this paragraph which cannot be paid on the
dates on which Rent would become due because of the expiration or other
termination of this Lease shall be due upon demand by the party claiming that
such payment is due.
19. EVENTS OF DEFAULT. The occurrence of any of the following events (each of
them an "Event of Default") shall constitute a default under this base:
(a) Failure of Lessee to pay any installment of Rent or any other sum
required by this Lease to be paid by Lessee within ten (10) consecutive
calendar days after such payment first became due.
(b) Failure of Lessee to observe, perform or comply with any term,
obligation, covenant or condition contained in this Lease or any Schedule
other than the obligation referred to in subparagraph (a) above within fifteen
(15) calendar days after the failure.
(c) Any attempted sale encumbrance by Lessee of the Equipment or any
term of Equipment.
(d) Failure of Lessee to contest a lien or encumbrance known to Lessee
and asserted against the Equipment or any Item of Equipment.
(e) Failure to maintain any insurance required under paragraph 13 of
this Lease.
(f) Lessee ceases to do business as a going concern.
(g) Lessee shall be in default if, (1) Lessee is unable financially, to
pay its debts as they become due, (2) admit its inability to pay its debts
generally as they become due, (3) be insolvent, either in that its liabilities
exceed its assets, or in that
Exhibit (10.3)-p7
Exhibit Section
Exhibit (10.3)
it is unable to pay its debts as they become due, (4) make a general
assignment for the benefit of creditors, (5) file a petition in bankruptcy, or
admit (by answer, default or otherwise) the material allegations of any
petition in bankruptcy filed against it under the Federal Bankruptcy Laws (as
in effect of the date of this Lease or as they may be amended from time to
time), or under any other law for the relief of debtors or for the discharge,
arrangement or compromise of debtors' debts or (6) consent to the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequester or other
official with similar powers of Lessee or a substantial part of its assets.
(h) A petition shall be filed against Lessee in proceedings under the
Federal Bankruptcy Law (as in effect at the date of this Lease, or they be
amended from time to time), or under any other laws for the relief of debtors
or for the discharge, arrangement or compromise of debtor's debts, or any
order shall be rendered by any court of competent, jurisdiction appointing a
receiver, trustee, or liquidator of Lessee or of all or part of Lessee's
assets, and such petition or order is not dismissed or stayed within sixty
(60) consecutive calendar days after entry thereof.
20. REMEDIES. Upon the occurrence of any Event of Default, and any time
thereafter, Lessor may at its option exercise any one or more of the following
remedies:
(a) Declare the entire amount of all unpaid Rent under this Lease
(including Installments of Rent which would otherwise have become due after
the Event of Default) and the amounts set forth in Schedule B, if any, to be
due and payable immediately.
(b) Terminate this Lease as to any or all Items of Equipment, whereupon
all rights of Lessee to the use of that Equipment shall absolutely cease and
terminate but Lessee shall remain liable upon all of Lessee's obligations
under this lease. Any such termination shall occur only by written notice by
Lessor to Lessee. Any such termination shall not impair Lessor's right to
exercise the other remedies set out herein.
(c) Take possession of the Equipment after terminating this Lease as
provided in subparagraph (b) of this paragraph, and for this purpose may enter
upon any premises of Lessee without any liability for such entry.
(d) All the Equipment or any other Item of Equipment, with or without
taking possession of it, at public auction or private sale at such time and
upon such terms as Lessor may determine, free and clear of any rights of
Lessee. In such case Lessor may recover from Lessee the difference between (1)
the sum of (A) the present value of the rent required under this Lease after
the Event of Default, (B) the present value of the fair market value which the
Equipment would have had at the normal expiration of the Lease had there been
no event of default (as determined by an independent appraiser acceptable to
Lessor), and (C) all of the other payments due to Lessor under this Lease as
of the date of sale including, but not limited to amounts due pursuant to
paragraph 18 of this Lease, and the proceeds of any sale of such Equipment
(which proceeds have been reduced by the reasonable expenses incurred by the
Lessor in the retaking of possession, preparation for sale, and sale of such
Equipment. To the extent that it does not duplicate amounts credited to Lessee
and deducted from amounts Lessor may recover under the preceding sentence,
Lessee shall be entitle, in mitigation of damages, to the net proceeds of any
such sale after deduction from such proceeds of all costs, charges and
expenses incurred by Lessor in the exercise of its remedies under this
paragraph 20, up to the amount paid by Lessee under the preceding sentence.
(e) Lease the Equipment, or any Item of Equipment, with or without
taking possession of it, for such period and rental, and to such persons as
Lessor may elect. In such case, Lessor may recover from the Lessee the greater
of:
(1) the aggregate of (A) the present value of the aggregate of the Rent
required under this Lease for the term of this Lease remaining after the Event
of Default, and (B) all of the other payments due to Lessor this Lease as of
the date of the new lease, including, but not limited to amounts due pursuant
to paragraphs 4 and 18 of this Lease, less the present value of the contractor
for rent for the Equipment to become due under the terms of the new lease for
the period beginning on the date the event of default occurred and ending on
the date the Term would have expired had there been no Event of Default, or
(2) the aggregate of (A) the present value of the aggregate of the rent
required under this Lease for the term remaining after the Event of Default,
and (B) all of the other payments due to Lessor under this Lease as of the
date of the new lease, including but not limited to amounts due pursuant to
paragraph 4 and 18 hereof, less the present value of the fair rental value (as
determined by an independent appraiser acceptable to Lessor) of such Equipment
for the period beginning on the date the Term would have expired if there had
been an Event of Default.
Exhibit (10.3)-p8
Exhibit Section
Exhibit (10.3)
(3) To the extent that it does not duplicate amounts credited to Lessee
and deducted from amounts Lessor may recover under subparagraphs (1) and (2)
of this subparagraph (e). Lessee shall be entitled, in consideration of
damages, to the net present value of the contracted for rent under any new
lease for the period beginning on the date the Event of Default occurred and
ending on the date this Lease would have terminated had there been no Event of
Default (discounted at the interest rate at which a new Lessee could borrow
funds on a secured basis for a term equivalent to the term of the new lease),
after deduction from such present value of all costs, charges and expenses,
including attorney fees, incurred by Lessor in the exercise of Lessor's
remedies under this paragraph 20, up to the amount paid by Lessee under this
subparagraph (e).
(f) Pursue any other remedy at law or in equity.
21. PRESENT VALUES: REMEDIES NOT EXCLUSIVE. For purposes of
subparagraphs (d) and (e) of paragraph 20 of this Lease, all present values
shall be calculated on the basis of a discount at an annual rate of six (6)
percent compounded on the dates Rent would otherwise have been payable under
this Lease. No right or remedy conferred if this Lease is exclusive of any
other right or remedy conferred herein or by law; but all such remedies are
cumulative of every other right or remedy conferred hereunder or at law or in
equity, by statute or otherwise, and may be exercised concurrently or
separately from time to time. ~
22. SECURITY. Lessee may, at Lessor's request, deposit with Lessor a
"Deposit" amount as setforth in the Lease Agreement or Schedule, if any, as
security for its payment of rent and of the other amounts hereunder, and
performance of its other obligations under this Lease (if an amount is filled
in the Schedule under "Deposit"). Lessor may, but shall not be obligated to
apply such deposit (or any part thereof) to cure any Event of Default
hereunder, in which event Lessee shall promptly restore the deposit to the
full amount originally deposited. The remaining balance of the deposit shall
be returned to Lessee upon the termination hereof or the period set forth in
Schedule B, if any, if no Event of Default has occurred.
23. LESSOR'S EXPENSES. Lessee shall pay Lessor all costs and expenses,
including attorney's fees and court costs, incurred by Lessor in exercising
any of its rights or remedies hereunder or enforcing any of the terms,
conditions, or provisions hereof.
24. ASSIGNMENT. (a) Without Lessor's prior written consent, Lessee
shall not (1) assign, transfer, pledge or hypothecate the Lease, the Equipment
or any Items thereof, or any interest therein, or (2) sublet or lend the
Equipment or any Items thereof to be used by anyone other than Lessee or
Lessee's employees. Consent to any one of the foregoing acts applies only in
the given instance and is not a consent to any subsequent like acts by Lessee
or any other person.
(b) Lessee's interest herein may not be assigned or transferred by
operation of Law.
(c) Lessor may assign this Lease or mortgage the Equipment or both in
whole or in part, without notice to Lessee. If Lessee is given notice of which
assignment, Lessee shall (if Lessor requests)) acknowledges receipt thereof in
writing. Each such assignee or mortgagee shall have all of the rights, but
none of the Obligations, of Lessor under this Lease. Lessee agrees that it
shall not assert against an assignee and/or mortgage any defense, counterclaim
or offset that Lessee may have against Lessor. Lessee agrees and understands
that the waiver of defense provision contained in the next preceding sentence
imposes upon Lessee all the risks that might be associated with any failure by
Lessor to perform all obligation that it might have under this Lease, and
obligates Lessee to pay to the assignee all Rents and other sums due under
this Lease absolutely, unconditionally and in all events, despite any
occurrence which might cause this Lease to be terminated (either as a matter
of law or otherwise) or prevent Lessee from enjoying the use of any Item of
Equipment or all of the Equipment, or reduce its value or utility to Lessee.
Notwithstanding any such assignment, Lessor agrees that Lessee may quietly
enjoy the use of the Equipment subject to and so long as Lessee complies with,
all the terms and conditions of this Lease. Subject to the foregoing, this
lease inures to the benefit of and is binding upon the heirs, legatees,
personal representatives, successors and assigns of the parties hereto.
25. PERSONAL PROPERTY. The Equipment is, and at all times shall be and
remain, personal property notwithstanding that the Equipment or any Item
thereof may now be, or hereafter become, in any manner affixed or attached to,
or imbedded in, or permanently resting upon, real property or any improvement
thereon, or attached in any manner to what is permanent as by means of cement,
plaster, nails, bolts, screws or otherwise and notwithstanding the provisions
of any lease, mortgage or other instrument attaching any such real property.
At its own cost and expense, Lessee shall take all actions that may be
necessary or desirable to cause the Equipment and each component thereof to
retain its character as personal property.
Exhibit (10.3)-p9
Exhibit Section
Exhibit (10.3)
26. LATE CHARGE. If Lessee fails to pay any installment or rent or any
other sum to be paid by Lessee to Lessor within ten (10) days after the due
date thereof, Lessee shall pay Lessor a late charge equal to (a) 5% of such
installment as a service charge, and (b) interest on such unpaid installment
or other amount at the rate of 17% per annum or, it there is a maximum
contract rate fixed by law, then at such rate, computed from the date the
installment first came due until it is paid in full.
27. NON-WAIVER. No covenant or condition of this Lease can be waived
except by the written consent of Lessor. Forbearance or indulgence by Lessor
in any regard whatsoever, shall not constitute a waiver of the covenant or
condition to be performed by Lessee to which such forbearances or indulgences
may apply, and until complete performance by Lessee of such covenant or
condition, Lessor shall be entitled to invoke any remedy available to Lessor
under this Lease or by law or in equity despite such forbearance or
indulgence.
28. ENTIRE AGREEMENT. This instrument and the Schedules (including
Schedule B, if any) constitute the entire agreement between Lessor and Lessee
and shall not be amended, altered or changed except by written agreement
signed by the parties.
29. NOTICES. Service of all notices under this Lease shall be
sufficient if given personally or mailed to the party involved at its
respective address or at such address as such party may provide in writing
from time to time. Any such notice mailed to such address shall be enforced
when deposited in the United States mail, duly addressed and with first class
postage pre-paid.
30. GENDER NUMBER. Whenever the context of this Lease requires, the
masculine gender includes the feminine of neuter, and the singular number
includes the plural, and whenever the word "Lessor" is used herein, it shall
include all assignees of Lessor. If there is more than one Lessee named in
this Lease, the liability of each shall be joint and several.
31. TITLES. The titles of the paragraphs of this Lease are solely for
the convenience of the parties, and are not an aid in the interpretation of
the instrument.
32. TIME. Time is of the essence of this Lease and each and all of its
provisions.
33. GOVERNING LAW. The validity, construction and performance of this
Lease shall be governed by the laws (including the conflict of laws rules) of
the Commonwealth of Kentucky.
34. INCORPORATION BY REFERENCE. All Schedules, annexes or other
attachments to this Lease as if set out in full at the first place in this
Lease that references is made thereto.
35. FURTHER ASSURANCES. At Lessor's request, from time to time, Lessee
shall sign financing assignments or other documents or instruments necessary
to make public filings reflecting Lessor's ownership of and interest in the
Equipment, and Lessee authorized Lessor to make any such filings that Lessor
may deem appropriate. Such filings and this provision are precautionary only
and do not evidence any intention that this Lease create a security interest.
In addition to the foregoing, Lessee shall provide to Lessor any confirmation
and/or reaffirmation of the representations and warranties contained in
paragraphs 17 and 18 of this Lease from any legal counsel or certified public
accountant acceptable to Lessor as Lessor may require.
36. DOCUMENTATION FEE. Lessee agrees to pay Lessor $250.00 or an
amount determined by Lessor, to offset lease documentation processing costs at
the time of the execution of this Lease.
37. PURCHASE OPTION. Provided thee terms and conditions of this Lease
have bean duly met and fulfilled by the Lessee and no default or other breach
exists, Lessor hereby grants the following option to the Lessee at the timely
expiration of this Lease.
37A. Lessor hereby grants to the Lessee the option to purchase the
leased equipment as described herein, for the sum of $1.00 at the expiration
of the original lease term.
X /s/ Xxxx X. Xxx TITLE: X CFO
--------------- ---
Exhibit (10.3)-p10
Exhibit Section
Exhibit (10.3)
ACKNOWLEDGEMENT OF LESSEE
37B. Lessee has requested, and Lessor agrees to grant that Lessee will
purchase the based Equipment for $__________ at the expiration of the original
1ease term which will be due and payable with the final scheduled payment.
X N/A TITLE: X
--- --------------------
ACKNOWLEDGEMENT BY LESSEE
*37C. Lessor hereby grants to the Lessee the option to purchase the Leased
Equipment as described herein, at the termination of the original term of the
Lease for the Equipment's then, "fair market value."
X N/A TITLE: X
--- ---------------------
ACKNOWLEDGEMENT BY LESSEE
* ("Fair market value", is defined as the value of the leased equipment, at
the time of the scheduled Lease termination date, based upon market condition,
equipment condition and its marketability at that time.)
Exhibit (10.3)-p11
Exhibit Section
Exhibit (10.3)
CORPORATE LEASING RESOLUTION
I hereby certify that I am the duly elected and qualified Secretary of
Champion Industries, Inc., a West Virginia corporation; that the following is
a true and correct copy of resolutions duly adopted by the Board of Directors
of said corporation at a meeting of said Board of Directors convened and held
in accordance with the By-Laws of said corporation on the ____ day of _______,
2001, and that said resolutions are now in full force and effect.
RESOLVED: That any officer of this corporation is hereby authorized and
directed to negotiate, execute and deliver on behalf of this corporation all
lease agreements whereby this corporation will lease from time to time various
items of property to be used in the operation of the business of the
corporation on terms and conditions which shall be determined by said officer
to be advisable and in the best interests of this corporation and the
execution of such lease agreements by said officers shall be conclusive
evidence and approval thereof.
BE IT FURTHER RESOLVED: That the acts of any officer of this Corporation
heretofore taken which conform to the authority granted in the preceding
paragraph are hereby ratified and confirmed.
BE IT FURTHER RESOLVED: That the Secretary be and is hereby authorized to
furnish a certified copy of this resolution.
Executed as of this ______day of _______, 2001.
------------------------------------------
Signature of Secretary
ATTEST:
------------------------------------------
Signature of officer (other than Secretary)
------------------------------------------
Printed Name and Title
SPECIAL PROVISION(s): (THE FOLLOWING SPECIAL PROVISION(s) ARE HEREBY MADE A
PART OF THIS LEASE.)
Exhibit (10.3)-p12
Exhibit Section
Exhibit (10.3)
Certificate
The undersigned, Xxxxxxxx X. Xxxxxxxx, Chairman of the Board of Directors
and Chief Executive Officer of Champion Industries, Inc., a West Virginia
corporation, hereby certifies to Leasing One Corporation that Xxxxx Xxxxxx,
Vice President of Administration of Champion Industries, Inc. is hereby
authorized and empowered, and has full authority, to execute any and all
documents related or incidental to a sale and leaseback of one (1) Heidelberg
Speedmaster Press, and to take any and all acts necessary to effectuate and
consummate such transaction.
Date: CHAMPION INDUSTRIES, INC.,
A West Virginia corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
Chairman of the Board of Directors and
Chief Executive Officer
Exhibit (10.3)-p13
Exhibit Section
Exhibit (10.3)
XXXX-OF-SALE
Seller: Champion Industries, Inc.
For the consideration of ($450,000.00) the receipt of which is hereby
acknowledged, seller hereby assigns, transfers, and sets over to:
Leasing One Corporation
XX Xxx 000
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
the following described personal property:
(1) Used Heidelberg Speedmaster, model 102-2P, s/n 537775.
Seller represents and warrants to Leasing One Corporation that the property is
free and clear of any and all liens, charges, or encumbrances, of whatever
nature whether legal or equitable, and that seller has full right, power,
authority, and legal capacity to sell the property and to execute this
xxxx-of-sale. EQUIPMENT IS SOLD TO BUYERS "AS IS", THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY
DISCLAIMED.
If seller is a corporation, the officer(s) executing this xxxx-of-sale on
behalf of seller has been duly authorized and is empowered to execute this
xxxx-of-sale on seller's behalf.
Seller: Champion Industries, Inc.
Title: /s/ Xxxx X. Xxx CFO
--------------------
Date: 4/19/01
-------
Exhibit (10.3)-p14
