Exhibit Section
Exhibit (10.2)
MASTER LEASE AGREEMENT
NO. 0031293
THIS MASTER LEASE AGREEMENT is by and between FIRSTAR EQUIPMENT
FINANCE, a division of Firstar Bank, National Association ("Lessor") and
CHAMPION INDUSTRIES, INC. ("Lessee").
1. DEFINITIONS. For purposes of this MLA: (a) "SCHEDULE" shall mean each
Lease Schedule executed by the parties now or hereafter, and all riders,
attachments and documents pertaining thereto; (b) "EQUIPMENT" shall mean all
units of equipment and other property described in the Schedule(s), together
with all accessories, upgrades, additions, substitutions, replacement parts,
tools, software licenses, contract rights, subleases, permits, licenses, chattel
paper, warranty and maintenance agreements and general intangibles pertaining
thereto now or hereafter arising, and all proceeds from any of the foregoing
(including any insurance proceeds); and (c) "MLA" shall mean this Master Lease
Agreement and all Schedules, and any other written agreements by and between
Lessor and Lessee with respect to this MLA, the Schedule(s) or the Equipment
plus any insurance agreements regarding the Equipment, any opinions of counsel,
any disclaimers regarding the Equipment, and any guaranties and/or letters of
credit relating to Lessee's obligations under the MLA, and any amendments to any
of the foregoing. Additional capitalized terms are defined in the Schedule or
herein.
2. LEASE OF EQUIPMENT. Subject to the conditions set forth herein, Lessee
agrees to lease from Lessor the Equipment described in each Schedule. By
executing and delivering a Schedule hereunder to Lessor, Lessee agrees and
acknowledges that all Equipment related thereto has been specifically selected
by and delivered to Lessee, that Lessee has had a reasonable opportunity to
inspect the Equipment, and that Lessee has unconditionally and irrevocably
accepted the Equipment as conforming in all respects based solely on Lessee's
own information and judgment, and Lessee agrees that it will not reject or
revoke its acceptance of the Equipment for any reason. In the event Lessor
orders the Equipment at the direction of Lessee, Lessor shall have no liability
to Lessee for any delay or failure by the manufacturer/vendor to deliver any of
the Equipment to Lessee or the condition of the Equipment. Notwithstanding
anything to the contrary herein, Lessor is not obligated to lease any item of
Equipment to Lessee in the event that Lessee has not obtained the appropriate
license, permit, and certificate as required under federal, state or local
environmental laws.
3. TERM OF LEASE AND RENT. The term of each lease of the Equipment is
described in each Schedule and commences upon the date Lessee accepts the
Equipment in accordance with Section 2 above. The rent for the Equipment is
designated in each Schedule. Lessee shall pay Lessor said rent at the times set
forth in each Schedule and at the office of Lessor (unless Lessor designates in
writing otherwise). In addition, if applicable, Lessee shall pay to Lessor
interim rent, at the daily equivalent, for the actual number of days from the
date of funding to the Commencement Date, as provided for in each Schedule. All
payments received by Lessor shall first be applied to any accrued late charge(s)
and other non-rental obligations owed by Lessee hereunder, and then to any
unpaid rents. All payments hereunder shall be applied to unpaid obligations then
due hereunder at Lessor's discretion. In the event Lessee should fail to pay
Lessor any Rent within ten (10) days of the due date hereof, or any other sum
required to be paid to Lessor within ten ( l 0) days of demand, Lessee shall pay
unto Lessor a late payment charge of the greater of 5 percent of the amount of
such late payment or $25.00. Time is of the essence as to the payment of Rent
and all other monies due Lessor hereunder. THIS MLA AND EACH SCHEDULE ARE
NON-CANCELABLE AND NON-TERMINABLE BY LESSEE, AND LESSEE MAY NOT PREPAY ANY RENTS
OR OTHER OBLIGATIONS HEREUNDER WITHOUT THE WRITTEN CONSENT OF LESSOR.
4. USES, MAINTENANCE, AND MODIFICATION OF EQUIPMENT. (a) Lessee shall use
the Equipment within its recommended capacities and only for the purpose(s) for
which it was designed. Lessee shall comply with all laws, regulations and
ordinances relating to the possession and use of the Equipment including,
without limitation, job safety, health, fire and environmental laws applicable
to the Equipment ("SAFETY LAWS"). At Lessee's expense, Lessee shall maintain the
Equipment in good repair and working order, and shall promptly provide all
parts, upgrades, modifications, environments and software required or
recommended now and hereafter by the manufacturer and supplier of the Equipment
("OEM" and "REQUIRED MODIFICATIONS" respectively) at Lessee's own expense.
Lessor shall have no obligation to deliver, install, test, adjust, maintain or
service the Equipment or provide substitute or replacement Equipment; and Lessee
shall arrange for and bear the full cost of all such matters. At any time upon
Lessor's request, Lessee shall provide Lessor with a satisfactory certificate(s)
from a qualified third party that the Equipment has been properly maintained per
OEM Requirements, contains all Required Modifications and complies with all
applicable Safety Laws. As used herein, "OEM REQUIREMENTS" shall include
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all servicing, modifications and improvements recommended in any manuals,
service bulletins and other publications from the OEM now or hereafter as
revised or supplemented. During the term of each Schedule, a complete and
accurate record of all maintenance, servicing, Required Modifications and
Permitted Modifications to the Equipment will be maintained by Lessee (the
"Service Records"), and the originals of such Service Records shall be Lessor's
property. Upon request during the term of any Schedule, Lessee will allow Lessor
to examine and copy the Service Records.
(b) Without the prior written consent of Lessor and except for Required
Modifications, Lessee shall not make any other modifications, additions or
improvements to the Equipment unless such modifications do not: (i) impair the
originally intended function, capabilities, specifications and performance of
any unit of Equipment; (ii) impair any maintenance agreement(s), warranties or
licenses with respect to any unit of Equipment; (iii) violate any OEM
Requirements; (iv) adversely affect the Equipment's resale value; or (v) cause
any damage to any unit of Equipment upon removal; in each case, as determined by
Lessor ("PERMITTED MODIFICATIONS"). Lessee also grants Lessor a right of first
refusal as to the lease of any Permitted Modifications. Lessee shall remove all
Permitted Modifications upon return of the Equipment without damage to the
Equipment and so as to cause the Equipment to comply with all Safety Laws and
with all OEM Requirements then in effect. All Permitted Modifications and any
other accessories attached to the Equipment not so removed upon return of the
Equipment shall be deemed the sole property of Lessor.
(c) Lessee shall not move Equipment without prior Lessor's consent. In
such event, Lessee agrees to execute all documents as may reasonably be required
by Lessor to effectuate the move of the Equipment.
5. OWNERSHIP AND INSPECTION OF EQUIPMENT. (a) The Equipment shall at all
times remain the exclusive property of Lessor. Lessee shall have no right, title
or interest in the Equipment except as expressly set forth herein or under the
Schedule. Lessee shall give Lessor immediate notice of any attempt by third
parties to seize any unit of Equipment. Lessee shall not change or remove any
insignia, lettering or identification on the Equipment; and shall keep for
safe-keeping any manuals, drawings, specifications, computer disks, maintenance
agreements and service records or any other written information regarding the
Equipment (and any associated hardware or software). Lessor may supply Lessee
with labels or other markings evidencing Lessor's interest in the Equipment and
Lessee shall promptly affix same to the Equipment in a prominent place. Lessee
shall maintain the Equipment as removable personal property notwithstanding the
fact that the Equipment (or any part thereof) may become attached to, imbedded
in, or resting on any real property or any building thereon. At any time during
Lessee's ordinary business hours, Lessor, or its agents, upon reasonable notice,
shall have the right to enter the premises where the Equipment is located to
inspect and/or test the Equipment, and show the Equipment to prospective
purchasers and lessees; and Lessee shall cooperate with Lessor in conducting
such activities. At any time during the term of any Schedule, Lessee will make
the Equipment available for mechanical inspection by the OEM (or other qualified
maintenance providers) at Lessor's expense except that Lessee shall bear the
cost of such inspection as follows: (i) as provided in Section 11 below; or (ii)
if such inspection discloses any material violation of the OEM Requirements as
reasonably determined by Lessor. Lessee will remove the Equipment from operation
for an adequate period of time to complete each such inspection provided that
such inspections do not materially interfere with Lessee's business. Any
Equipment not found to be in compliance with the OEM's Requirements will be
brought into compliance by Lessee at Lessee's expense within fifteen (15) days
of the inspection to the satisfaction of the Lessor.
(b) If the Equipment is taken out of operation by Lessee for more than
thirty (30) days, Lessee shall take all measures prescribed by the OEM and
Lessor to place the Equipment in long term storage. During the storage period,
Lessee will keep the Equipment under power (unless otherwise agreed in writing
by Lessor) and follow the recommendation of the OEM relative to maintenance of
the Equipment. Lessee will notify Lessor in writing forty-five (45) days in
advance of its intent to place any Equipment in storage. At any time, Lessor, or
its agent, shall have the right to enter the premises where the Equipment is
being stored to inspect and/or test the Equipment, and show the Equipment to
prospective purchasers and lessees; and Lessee shall cooperate with Lessor in
conducting such activities.
6. LOSS OF AND DAMAGE TO THE EQUIPMENT (STIPULATED LOSS VALUE). Until
such time as Lessor accepts physical surrender of the Equipment from Lessee in
writing, Lessee hereby assumes the entire risk of loss and damage to the
Equipment from every cause whatsoever (notwithstanding the existence of any
insurance on
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the Equipment in favor of Lessor). If any unit of Equipment is damaged, Lessee
shall place such Equipment in good repair and working order to the satisfaction
of Lessor and OEM requirements. If any unit of Equipment is determined by Lessor
in its sole discretion to be lost, stolen or damaged beyond repair, Lessee shall
(at Lessor's option): (i) replace such Equipment with equipment of equivalent
value, utility and characteristics, or (ii) pay Lessor in cash the greater of
the Fair Market Value (as defined below) of such Equipment determined by Lessor
on any reasonable basis or the "STIPULATED LOSS VALUE" for such unit of
Equipment as set forth in the Schedule plus any and all unpaid rents, late
charges, taxes and other amounts due. Upon Lessee's payment in good funds of the
amount required, this MLA shall terminate with respect to such unit of Equipment
and Lessee shall (subject to the rights of any insurer) be deemed the owner of
such Equipment "AS IS" and "WHERE IS" WITHOUT ANY WARRANTY (EXPRESS OR IMPLIED)
BY LESSOR WITH RESPECT TO ANY MATTER WHATSOEVER (INCLUDING MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE). "FAIR MARKET VALUE" shall mean the amount of
money to be paid for the Equipment by a fully informed and willing buyer/user
(including a lessee in possession) from a fully informed and willing seller
assuming: (a) an arm's length transaction with neither party under the
compulsion to buy or sell; and (b) the Equipment is valued on a fully assembled
and operational basis (including therein all necessary deinstallation,
reinstallation and engineering costs) and is in the condition required be this
MLA, and shall be determined by Lessor in its reasonable discretion.
7. INSURANCE. a) Lessee shall insure the Equipment to Lessor's
satisfaction against all risks of loss and damage, and shall carry comprehensive
public liability and property damage insurance satisfactory to Lessor as
provided herein and in each Schedule. Lessee shall pay the premiums for all such
insurance, and shall deliver to Lessor one or more insurance certificates or
other satisfactory written evidence of the required insurance coverage at the
time Lessee accepts the Equipment, and annually thereafter. Lessor shall be
listed as additional insured and/or loss payee as the case may be for all
insurance policies required hereby on the insurance certificate(s) provided to
Lessor. Lessor shall have the exclusive right, and Lessee hereby appoints Lessor
as Lessee's attorney-in-fact (coupled with an interest), to make and settle any
claims under, receive any payments on, and execute and endorse any documents,
checks or drafts respecting any insurance (and proceeds therefrom) regarding the
Equipment. In the event any insurance proceeds are paid or payable with respect
to any unit of Equipment, such insurance proceeds shall be applied (at Lessor's
option) toward: (i) the replacement, restoration or repair of such Equipment; or
(ii) satisfaction of Lessee's obligations hereunder.
b) Lessee agrees to give prompt written notice to Lessor, (within five (5)
days) as to any damage to, or loss of, the Equipment or material damage or
personal injury caused by the Equipment. Lessee shall, at its own expense and
cost, have the duty and responsibility to make all proofs of loss and take all
other steps necessary to effect collections from underwriters for any loss under
any of the above mentioned policies. If the Equipment is to be subleased or used
by others (subject to Lessor's prior written approval), a special insurance
endorsement may be required to permit such use. Lessee further agrees that the
property insurer must be licensed to do business in the state of Equipment
domicile and have a Best's Key Rating of at least "B+".
8. PAYMENT OF TAXES, FEES & LESSOR'S EXPENSES. (a) Lessee shall keep the
Equipment free and clear of all security interests, liens, encumbrances and
claims of any kind; and Lessee shall promptly pay all municipal, state and
federal taxes (including unitary taxes, receipts taxes, and apportionment
taxes), assessments and/or charges (including any governmental charges to audit
Lessor's records regarding this MLA or due Equipment except Lessor's income tax
records) which may now or hereafter be imposed regarding the acquisition,
ownership, lease, sale, possession, use or transfer of the Equipment; excluding
any applicable federal, state taxes imposed on or measured by Lessor's general
income except to the extent provided in each Schedule. Lessor shall include the
Equipment, except as otherwise directed by Lessor, on Lessor's personal property
tax return and Lessee shall reimburse Lessor, upon demand, for all taxes paid by
Lessor with respect thereto. At Lessee's own expense, Lessee shall obtain,
prepare and deliver to Lessor: (i) all returns and/or filings required by
applicable law pertaining to such governmental taxes, assessments, and/or
charges; and (ii) all licenses, certificates, registrations and/or permits
required for the ownership, possession and/or use of the Equipment
("CERTIFICATES"). Lessee shall maintain and renew all such Certificates, and
shall take all necessary steps necessary to avoid the cancellation, suspension
and/or revocation of such Certificates, and/or any material adverse amendment
thereto.
(b) Lessee shall promptly pay all costs, charges, expenses and
obligations of every kind and nature (including reasonable attorneys' fees of
outside and in-house counsel) incurred by or on behalf of Lessor regarding the
importation, shipment, delivery, possession, use, lease, tax treatment, return,
repossession, storage and transfer of
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any unit of Equipment whenever and however arising, and for any termination
and/or amendment of this MLA or any Schedule, and for the exercise of any rights
or remedies with respect to MLA. In the event Lessee fails to procure or
maintain the insurance required under Section 7 above, or fails to promptly pay
any amounts required to be paid by Lessee herein, Lessor shall have the right
(but shall not be obligated) to procure such insurance and/or pay such amounts
on behalf of Lessee. In such event, Lessee shall promptly reimburse Lessor for
the amount thereof on demand. If Lessee fails to pay any amount(s) when due
hereunder, such amount(s) shall accrue interest until paid at 18% per annum or
the highest rate permitted by law (whichever is lower).
9. WARRANTIES. (a) Lessee warrants that it is duly organized and in good
standing under the laws of its state of organization; that Lessee is qualified
to do business in those states where the Equipment is located; that the
execution of this MLA and each Schedule has been duly authorized; and that the
execution and performance of this MLA and each or any Schedule by Lessee will
not cause Lessee to be in default under any material agreements or in violation
of any applicable laws.
(b) LESSEE REPRESENTS TO LESSOR THAT LESSEE HAS SELECTED THE TYPE,
QUANTITY AND SUPPLIER OF THE EQUIPMENT; AND THAT THE EQUIPMENT IS OF A DESIGN,
SIZE, QUALITY AND CAPACITY REQUIRED BY LESSEE, AND IS SUITABLE FOR LESSEE'S
PURPOSES. LESSOR IS NOT A MANUFACTURER OR SUPPLIER OF THE EQUIPMENT NOR AN AGENT
OF THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, AND LESSOR DOES NOT ENDORSE OR
PROMOTE ANY ITEM OF EQUIPMENT. NO REPRESENTATIONS OR PROMISES MADE BY ANY
MANUFACTURER, SUPPLIER OR DISTRIBUTOR OF THE EQUIPMENT SHALL BE BINDING ON
LESSOR. LESSOR MAKES NO WARRANTY OR REPRESENTATION (EITHER EXPRESS OR IMPLIED)
TO LESSEE AS TO THE FITNESS POR A PARTICULAR PURPOSE, QUALITY, DESIGN,
CONDITION, CAPACIIY, SAFETY, SUITABILITY, MERCHANTABILITY OR PERPORMANCE OF THE
EQUIPMENT (INCLUDING ITS CONFORMITY WITH APPLICABLE LAW AND REGULATIONS), TITLE
TO THE EQUIPMENT, OR ANY OTHER MATTER WHATSOEVER. LESSEE AGREES THAT THE
EQUIPMENT IS LEASED "AS IS" AND "WHERE IS" AND THAT ALL RISKS REGARDING THE
EQUIPMENT ARE TO BE BORNE SOLELY BY LESSEE INCLUDING, WITHOUT LIMITATION, ANY
LOSSES OR DAMAGES DUE TO ACTS OF GOD, STRIKES, GOVERNMENTAL ACTION OR
OBSOLESCENCE. LESSOR SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER PARTY FOR ANY
CLAIM OR MATTER PERTAINING TO THE EQUIPMENT WHATSOEVER INCLUDING, WITHOUT
LIMITATION, ANY LOSS OR DAMAGE (DIRECT, INDIRECT OR CONSEQUENTIAL) FROM BUSINESS
INTERRUPTION, LOSS OF PROFITS, NONDELIVERY OR LATE DELIVERY OF THE EQUIPMENT,
IMPROPER INSTALLATION OR DESIGN OF THE EQUIPMENT, FAILURE OR IMPROPER OPERATION
OF THE EQUIPMENT, BREACH OF ANY WARRANTY OR REPRESENTATION MADE BY THE OEM OF
THE EQUIPMENT, OR ANY INJURY TO PERSONS OR PROPERTY. LESSOR MAKES NO
REPRESENTATIONS, WARRANTIES OR PROMTSES WITH REGARD TO THE TAX OR ACCOUNTING
TREATMENT OF THIS MLA OR AN LEASE SCHEDULE, OR THE INTERESTS OF LESSOR AND
LESSEE AS REGARDS THE EQUIPMENT.
(c) Lessee acknowledges that it has reviewed and approved all contracts
and agreements pertaining to Lessor's acquisition of the Equipment prior to
leasing the Equipment, and that Lessee accepts the terms and limitations of any
warranties, licenses and/or OEM Requirements contained therein. To the extent
assignable by Lessor, all warranties and licenses made by the OEM of the
Equipment are hereby assigned to Lessee for the lease term applicable to such
Equipment. At Lessee's sole expense and in Lessee's own name only, Lessor hereby
authorizes Lessee to enforce any such warranties or licenses made with respect
to the Equipment upon written notice to Lessor; and Lessor is under no
obligation to enforce any warranties or license regarding the Equipment.
Notwithstanding the foregoing, Lessee shall not commence any legal proceedings
to enforce any warranty or license except upon the prior written consent of
Lessor (which consent shall not be unreasonably withheld). Lessor makes no
representations or warranties as to the existence, sufficiency or enforceability
of any warranties or licenses regarding the Equipment; and Lessee's sole remedy
for any defect in or nonconformity of the Equipment is against the OEM thereof.
10. INDEMNITY. Notwithstanding the existence of any insurance in favor of
Lessor, Lessee shall promptly defend, indemnify and save Lessor harmless from
and against: (a) any and all loss of or damage to the Equipment; and (b) any
claim, action, demand, proceeding, or liability for any damage, loss, injury,
cost or expense (including reasonable attorney's fees) which Lessor may be
subject to: (i) relating to the construction, importation, exportation,
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delivery, installation, ownership, sale, lease, transfer, storage,
nonacceptance, rejection, return, or repossession of the Equipment (or any part
thereof); (ii) resulting from the use, maintenance, repair, replacement,
operation or condition of the Equipment (or any part thereof); (iii) arising by
reason of any act or omission of Lessee or Lessee's violation of any law,
regulation or ordinance pertaining to the Equipment; (iv) as a result of any
claim for patent, copyright, trademark or other proprietary right infringement
relating to the Equipment or the use thereof; (v) as a result of any tort,
negligence or strict liability claim respecting the Equipment and/or the use
thereof (including, without limitation, any contribution and/or subrogation
claims relating thereto); or (vi) as a result of any third party claim to the
Equipment. The foregoing collectively called the "INDEMNITY CLAIMS." Lessee
agrees to give Lessor prompt written notice of any Indemnity Claims described in
this Section 10. Notwithstanding the foregoing, Lessee shall not be obligated to
indemnify Lessor for any Indemnity Claim to the extent actually and proximately
caused by the willful misconduct of Lessor.
11. RETURN OF EQUIPMENTIRETURN REQUIREMENTS. (a) Absent termination of
this MLA (or any Schedule) by default, Lessee will advise Lessor in writing of
its decision to return the Equipment at least one hundred eighty (180) days
prior to the end of the scheduled termination of each Schedule. Within thirty
(30) days after such notification, Lessee will make the Equipment comply with
OEM Requirements and available for examination by prospective buyers and/or
lessees, and inspection by Lessor. Upon the termination or cancellation of this
MLA or of any Schedule for any reason and at Lessee's expense, Lessee shall
disassemble, prepare for shipment and load the Equipment under the supervision
of Lessor (or a party designated by Lessor), so that it may be transported in a
manner consistent with the OEM's Requirements, industry standards and the
Lessor's guidelines except in the event Lessee properly effectuates its purchase
and/or reletting of the Equipment as provided for herein. If Lessee does not
purchase the Equipment or renew a Schedule, Lessee will store and maintain the
Equipment, at Lessee's expense for up to twelve (12) months after the
termination date of such Schedule at a location and under conditions reasonably
satisfactory to Lessor. Subsequent to any period of storage and at Lessor's
request, Lessee shall ship the Equipment including any tooling, attachments,
replacements and accretions, at Lessee's expense, to any location designated by
Lessor in the continental U.S. per the requirements set forth in this Section.
The Equipment will meet all return requirements and be clean and free of all
foreign and/or hazardous material, to the satisfaction of Lessor, prior to
shipment.
(b) Upon return, the Equipment shall (i) be in compliance with this MLA,
all OEM Requirements and Safety Laws, have all Required Modifications; and (ii)
be in such mechanical condition that the Equipment can immediately be
reassembled in its original configuration (as originally invoiced to Lessor),
placed into service by an operator without the need for any modifications,
mechanical repairs, replacement parts, and operate per the OEM Requirements,
each as determined in the reasonable opinion of the Lessor. All of the foregoing
are the "RETURN REQUIREMENTS." At least fifteen (15) days prior to return of the
Equipment, Lessor may elect to have a qualified service technician inspect the
Equipment and submit a written report as to the Equipment's condition and
compliance with the Return Requirements at Lessee's expense. Lessee will remove
the Equipment from operation for an adequate period of time, in the opinion of
Lessor, for the purpose of completing such inspection. Any items of Equipment
not found to be in compliance with the Return Requirements will be brought into
compliance by Lessee prior to return of the Equipment at Lessee's expense.
Lessee will return to Lessor the originals of all operator's manuals,
maintenance manuals, drawings, computer software and manuals, Service Records
and any other materials regarding the Equipment (including any revisions to such
materials published during the term of the each Schedule). The Service Records
must be legible and contain all the required servicing maintenance and
modification information on the Equipment, or Lessor may cause a qualified
technician to reconstruct any deficient Service Records at Lessee's expense.
(c) If for any reason Lessee shall fail to return any unit of Equipment
as specified herein, Lessee shall pay to Lessor rent equal to 150% of the Base
Rate set forth in the applicable Schedule(s) for each month or fraction thereof
that such Equipment remains unreturned ("POST-TERMINATION RENT"). Lessee agrees
that such Post-Termination Rent is not a penalty, but liquidated damages for
Lessor's inability to take possession of the Equipment for reletting or resale,
and for the increased risk of damage to and loss of the Equipment. Acceptance by
Lessor of any Post-Termination Rent shall not constitute a renewal of this MLA
or the applicable Schedule, nor a waiver of any default under this MLA or the
applicable Schedule, nor a waiver of any of Lessor's rights and remedies.
12. DEFAULT. Any of the following shall constitute an event of default
hereunder: (a) Lessee's failure to pay any amounts when due hereunder; (b) the
unauthorized removal of any unit of Equipment from the
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location(s)described in the Schedule(s); (c) Lessee's unpermitted assignment of
any interest in this MLA or in the Equipment; (d) Lessee (or any guarantor of
Lessee's obligations hereunder) making an assignment for the benefit of its
creditors, or becoming subject to any proceedings under the U.S. Bankruptcy Code
or any state reorganization, receivership, insolvency or dissolution
proceedings; (e) the filing of any lien, levy, attachment or judgment affecting
the Equipment which has not been released or stayed on appeal within ten (10)
business days of Lessee's knowledge thereof, or for which a bond satisfactory to
Lessor in the full amount of such lien, levy attachment or judgment has not been
obtained
in favor of Lessor within ten (10) business days of Lessee's knowledge thereof;
(f) Lessee's failure to cure any breach of any other provision of this MLA
within ten (10) business days of Lessee's knowledge thereof or of Lessee's
receipt of Lessor's written notice thereof (whichever occurs earlier); (g)
Lessee (or any guarantor of Lessee's obligations hereunder) making any
misrepresentations to Lessor now or hereafter; (h) Lessee being in default under
any other agreement with Lessor or any of its affiliates or under any material
third party agreement which has not been cured as provided; (i) any adverse
material change in Lessee's financial condition or business operations (or that
of any guarantor of Lessee's obligations hereunder), or any material change in
the ownership of Lessee in Lessor's reasonable determination; or (j) Lessee or
any guarantor dies; or (k) Lessee or any guarantor sells, transfers or disposes
of all or substantially all of its assets or property or a material-portion
thereof, or merges with any other entity, or engages in any form of corporate
reorganization or recapitalization without the prior written consent of Lessor;
(l) Lessee's failure to comply with any covenant, condition or obligation
related to this MLA; or (m) Lessee fails to maintain, throughout the term of
this MLA, all significant accounts (including, without limitation, all
significant operating accounts, demand and time deposit accounts, certificate of
deposit accounts and safekeeping accounts) and/or other banking relationships
currently established between Lessee and Lessor. Upon an event of default, this
MLA and each Schedule shall automatically terminate unless otherwise agreed in
writing by Lessor.
13. REMEDIES/ADDITIONAL COLLATERAL. (a) Upon the occurrence of an event
of default hereunder (and regardless of Lessor's termination of this MLA),
Lessor shall have the non-exclusive option to (i) declare the present value of
the aggregate Rents or the Stipulated Loss Values payable under any or all of
the Schedules immediately due and payable; (ii) declare all other amount(s) due
Lessor hereunder immediately due and payable; (iii) declare the present value of
the Residual Value of all the Equipment to be immediately due and payable (the
"RESIDUAL VALUE" of the Equipment for these purposes is deemed to be the greater
of twenty percent (20%) of the Equipment's original cost or the Fair Market
Value of the Equipment at the end of the originally scheduled lease term
determined by Lessor in any reasonable manner; (iv) take possession of the
Equipment and remove same from its existing location(s) without further notice
to or consent of Lessee, and store and/or dispose (by public sale or otherwise)
of the Equipment at its existing location(s) at no charge to Lessor; (v) collect
from Lessee all expenses associated with enforcing remedies hereunder including
but not limited to reasonable attorney fees, repossession, transportation,
storage and remarketing expenses; or (vi) assert any other remedies available to
Lessor at law or in equity (including, without limitation, under the Uniform
Commercial Code). For purposes of computing present value hereunder, the
discount rate shall be a rate per annum equal to the lowest published Ask Yield
of any U.S. Treasury Bond, Note or Xxxx set forth in The Wall Street Journal,
Treasury Bonds, Notes and Bills section, having a maturity date closest to the
originally scheduled termination date of the applicable Schedule. Any return
and/or repossession of the Equipment shall not waive or impair any of Lessor's
rights or remedies. Except as otherwise provided for herein or by law, all
amount(s) due Lessor after an event of default shall be due and payable without
any further notice or demand by Lessor, and without regard to any action taken
by Lessor regarding the Equipment. All amounts payable herein by Lessee after
the occurrence of an event of default shall bear interest until paid at the rate
of 18% per annum or the highest rate permitted by law (whichever is lower).
Lessee releases Lessor from any requirement to post a bond or surety regarding
any repossession or disposition of the Equipment. Lessee grants the Lessor a
security interest and right of setoff against all deposits, account balances and
credits with or due from the Lessor (and/or its affiliates) now existing or
hereafter arising, and all proceeds thereof.
b) FOR GOOD AND VALUABLE CONSIDERATION, LESSEE AGREES THAT ALL OF ITS
OBLIGATIONS UNDER THE MLA ARE PART OF ALL EXISTING AND FUTURE OBLIGATIONS
COVERED BY ANY SECURITY AGREEMENT(S), COLLATERAL AGREEMENT(S), AND MORTGAGE(S)
EXECUTED BY LESSEE NOW OR HEREAFTER IN FAVOR OF FIRSTAR BANK, NATIONAL
ASSOCIATION, OR ANY OTHER FIRSTAR ENTITY AND ALL COLLATERAL DESCRIBED THEREIN,
AND ALL SUCH AGREEMENTS ARE AMENDED BY THIS MLA ACCORDINGLY WITHOUT FURTHER
AMENDMENT.
Exhibit (10.2)-p6
Exhibit Section
Exhibit (10.2)
c) In the event Lessor accepts in writing the return of any unit of
Equipment, Lessor shall use its reasonable efforts thereafter to sell and/or
re-let such Equipment, and Lessee agrees that such attempt shall fully satisfy
Lessor's obligation to mitigate its damages. After deducting all expenses of
retaking, repairing, holding, transporting, meeting the Return Requirements,
selling and/or reletting the Equipment, the net proceeds (if any) from such sale
or re-letting by Lessor shall be applied against Lessee's obligations hereunder
(without regard to the fact that each Schedule constitutes a separate lease of
Equipment). The proceeds of any sale, re-lease or other disposition (if any)
shall be applied in the following priorities: (i) First, to pay all Lessor's
costs, charges and expenses in taking, removing, holding, meeting the Return
Requirements, selling, re-leasing and disposing of the Equipment; (ii) second,
to the extent not previously paid by Lessee (or by a guarantor of Lessee's
obligations hereunder) to pay Lessor all amounts due from Lessee hereunder;
(iii) third, to reimburse to Lessee (or any guarantor) any sums previously paid
as damages to Lessor by Lessee (or such guarantor); and (iv) lastly, any surplus
and all other amounts attributable to the Equipment shall be retained by Lessor
(except Lessee shall be entitled to such surplus to the extent Lessee has paid
any damages requested by Lessor under Section 13(a)(iii) above and the Schedule
provides Lessor is entitled to such surplus). Lessor shall have the right to
seek a deficiency from Lessee notwithstanding Lessor's repossession or
abandonment of the Equipment, or Lessor's sale or reletting the Equipment to a
third party and Lessor shall determine the present value of any future committed
lease payments due from a third party lessee in its reasonable opinion. After an
event of default, Lessee hereby irrevocably appoints Lessor as its
attorney-in-fact (coupled with an interest) to do all things necessary to
carryout Lessee's obligations under this MLA and with respect to the Equipment.
All remedies granted to Lessor herein and at law are cumulative, and may be
exercised concurrently or separately. No right or remedy is exclusive of any
other right or remedy. Notwithstanding any repossession, reletting or sale of
any unit of Equipment by Lessor and/or termination of this MLA, Lessee shall
remain fully liable for the performance of its obligations herein. In the event
that any Schedule is determined to be a transaction intended to create a
security interest within the meaning of UCC-Article 9, then Lessor shall have
all of the rights and remedies provided by UCC-Article 9 plus the other remedies
provided for herein.
14. ASSIGNMENT. This MLA shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the parties hereto (whether by
operation of law or by agreement) except as provided for herein. Any or all of
Lessor's rights and obligations under this MLA (or any part thereof) and/or any
or all of the Lessor's rights and interest in the Equipment (or any part
thereof), may be sold, assigned or pledged to a third party ("ASSIGNEE") without
notice to or the consent of Lessee. Lessee agrees that any Assignee may enforce
its rights independent of the rights of Lessor or any other Assignee under this
MLA and the applicable Schedule. Lessee acknowledges that any such sale,
assignment or pledge of any or all of Lessor's rights and/or obligations
hereunder and/or rights and interests in the Equipment shall not be deemed to
materially change Lessee's duties or obligations hereunder nor increase the
burdens or risks imposed on Lessee for purposes of Article 2A of the Uniform
Commercial Code. No breach or default by Lessor hereunder shall excuse the full
and timely performance by Lessee of its obligations under this MLA or any
Schedule to Assignee of Lessor. Lessee agrees to execute a written
acknowledgment of the matters set forth herein in favor of (and to the
satisfaction of such successor or assignee) upon request. LESSEE SHALL NOT
ASSIGN, TRANSFER, OR PLEDGE ANY RIGHT, INTEREST OR OBLIGATION UNDER THIS MLA (OR
ANY PART THEREOF) OR ANY RIGHT OR INTEREST IN THE EQUIPMENT (OR ANY PART
THEREOF), NOR PERM1T THE EQUIPMENT (OR ANY SCHEDULE) TO BE SUBLEASED OR USED BY
ANY PARTY OTHER THAN LESSEE AND ITS EMPLOYEES. ANY SUCH UNPERMITTED ASSIGNMENT,
TRANSFER, PLEDGE, OR USE SHALL BE DEEMED A DEFAULT HEREUNDER. TO THE EXTENT THIS
MLA OR ANY SCHEDULE IS ASSIGNABLE OR ASSUMABLE BY OPERATION OF LAW WITHOUT THE
CONSENT OF LESSOR, THIS MLA AND ALL SCHEDULES MUST BE ASSIGNED AND/OR ASSUMED
TOGETHER IN THEIR ENTIRETY. At Lessor's sole discretion (and without notice to
or consent of Lessee), Lessor may sell a participation in this MLA and any
Schedule and may distribute information regarding Lessee and this MLA to
potential participants.
15. NET LEASE/FINANCE LEASE. a) THIS MLA CONSTITUTES A NET LEASE, AND LESSEE'S
OBLIGATION TO PAY THE RENTS AND OTHER AMOUNTS DUE HEREUNDER (AND THE CONTINUING
EFFECTIVENESS AND ENFORCEABILITY OF THIS MLA) ARE ABSOLUTE, UNCONDITIONAL AND
INDEPENDENT OBLIGATIONS NOT SUBJECT TO ABATEMENT, DIMINUTION, SUSPENSION,
DEFERMENT, REDUCTION OR OFFSET FOR ANY REASON INCLUDING WITHOUT LIMITATION: (1)
ANY CLAIMS OF LESSEE AGAINST LESSOR, OR THE OEM OF THE EQUIPMENT; (2) ANY DEFECT
IN, DAMAGE TO, OR LOSS OR DESTRUCTION OF ANY UNIT OF EQUIPMENT HOWEVER
Exhibit (10.2)-p7
Exhibit Section
Exhibit (10.2)
ARISING; OR (3) ANY INTERFERENCE WITH LESSEES USE OF ANY UNIT OF EQUIPMENT BY
ANY THIRD PARTY (INCLUDING ANY GOVERNMENTAL BODY). IT IS THE EXPRESS INTENTION
OF THE PARTIES HERETO THAT ALL RENTS AND OTHER AMOUNTS PAYABLE BY LESSEE TO
LESSOR HEREUNDER SHALL CONTINUE TO BE PROMPTLY AND UNCONDITIONALLY PAID IN ALL
EVENTS.
b) Lessee acknowledges that this MLA constitutes a "finance lease" under UCC
Article 2A in all respects, and that Lessor's sole obligations to Lessee
hereunder is not to interfere with Lessee's quiet enjoyment of the Equipment so
long as Lessee is not in default hereunder. Subject to the foregoing sentence
and to the extent permitted by law, Lessee unconditionally and irrevocably
waives any and all rights and remedies against Lessor at law or in equity
(including, without limitation, any rights and remedies granted Lessee under
Article 2A of the Uniform Commercial Code and/or the right to reject any
Equipment or repudiate this MLA).
c) In the event any lease transaction covered by this MLA is deemed to be a
"secured transaction", Lessee grants Lessor a security interest and lien on all
Equipment and other property related to such transaction contemporaneous with
Lessee's entering into such transaction with Lessor, and the Lessor shall have
all the rights of a secured party under UCC Article 9 as to such transaction.
16. ADDITIONAL DOCUMENTS AND INFORMATION. Lessee shall execute and deliver to
Lessor such other documents as Lessor may reasonably deem necessary to evidence
or protect Lessor's interests in the Equipment and Lessor's rights under this
MLA. Lessee authorizes Lessor to file, at Lessor's option, any such instruments
(including financing statements and certificates of title) without Lessee's
signature and if such signature is required by law, Lessee appoints Lessor as
Lessee's attorney-in-fact to execute such items, in Lessee's name without
restriction, and Lessor's expenses with respect thereto shall be payable by
Lessee upon demand. Upon request by Lessor, Lessee shall verify in writing the
exact location of the Equipment and identify any unit of Equipment moved since
the date of any previous verification, and provide Lessor with maintenance
information regarding the Equipment. Lessee shall furnish Lessor with (a)
audited year end financial statements from a public accounting firm reasonably
satisfactory to Lessor within one hundred twenty (120) days after the end of its
fiscal year, and (b) company prepared quarterly financial statements within
forty-five (45) days of the end of each quarter, and such other financial
information as Lessor may from tune to time request. Lessee hereby warrants and
represents that all financial statements heretofore and hereafter delivered to
Lessor by or upon behalf of Lessee have been and will be prepared in accordance
with generally accepted accounting principles consistently applied, and all
statements and data submitted to Lessor in connection with this MLA and each
Schedule shall be complete and accurate in all respects.
17. GOVERNING LAW & CONSTRUCTION. (a) This MLA and each Schedule shall be
construed without regard to any presumption or rule requiring construction
against the party causing this MLA to be drafted. If more than one Lessee is
named in this MLA (or any Schedule), the liability of such Lessees shall be
joint and several. If any provision of this MLA or the application thereof to
any party is held invalid or unenforceable for any reason, the other provisions
of this MLA and their application shall be unaffected thereby, and shall remain
in full force and effect. No delay on the part of Lessor in exercising any
right, power, or remedy hereunder shall operate as a waiver thereof, and no
single or partial exercise of any right, power or remedy by Lessor hereunder
shall preclude any further exercise thereof (or the exercise of any other right,
power, or remedy). THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS MLA
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA (IRRESPECTIVE OF SUCH
STATE'S CHOICE OF LAWS RULES). THE PARTIES AGREE THAT THE MLA AND EACH SCHEDULE
ARE DEEMED TO BE EXECUTED, EFFECTIVE AND PERFORMED IN THE STATE OF MINNESOTA BY
VIRTUE OF LESSOR EXECUTING AND ACCEPTING THE MLA AND EACH
SCHEDULE IN SUCH STATE AND ALL RENTAL PAYMENTS BEING PAID TO LESSOR IN SUCH
STATE. ALL CLAIMS AND OTHER MATTERS RELATING TO THIS MLA AND THE EQUIPMENT (AS
BETWEEN LESSOR AND LESSEE) SHALL BE HEARD IN ANY STATE OR FEDERAL COURT LOCATED
IN HENNEPIN COUNTY, MINNESOTA; AND THE PARTIES HEREBY CONSENT TO THE PERSONAL
JURISDICTION OF SUCH COURTS, AND WA1VE TRIAL BY JURY. Nothing in this section
shall affect or impair Lessor's right to serve legal process in any manner or
Lessor's right to bring any action or proceeding against Lessee or the Equipment
in the courts of any other jurisdiction. THIS MLA AND EACH SCHEDULE REPRESENTS
THE ENTIRE AGREEMENT OF THE PARTIES AND THEIR PROVISIONS SHALL NOT BE
Exhibit (10.2)-p8
Exhibit Section
Exhibit (10.2)
MODIFIED, SUPPLEMENTED OR WAIVED IN ANY MANNER EXCEPT BY THE WRITTEN CONSENT OF
THE PARTIES.
(b) ALL OF LESSEE'S OBLIGATIONS TO LESSOR NOW EXISTING OR HEREAFTER
ARISING UNDER THE MLA AND ALL SCHEDULES HERETO ARE SECURED BY ALL THE EQUIPMENT
COVERED BY THIS MLA (TO THE EXTENT NOT OWNED BY LESSOR), NOTWITHSTANDING THE
INDEPENDENCE OF THE INDIVIDUAL SCHEDULES OR THE DATE OF THEIR EXECUTION.
18. NOTICES. The giving of all notices required herein shall be
sufficient if made in writing and delivered personally, sent via facsimile
(transmission confirmed) or mailed to the party involved at the address
hereinafter set forth below (or at such other address as each party may provide
in writing). If mailed, such notice shall be deemed given when deposited in the
U.S. mail fully addressed with postage prepaid.
19. SURVIVAL OF OBLIGATIONS. The indemnity and reimbursement
obligations set forth in this MLA shall survive termination of this MLA and each
Schedule, and satisfaction of Lessee's obligations hereunder.
Dated and accepted this ____day of _______, 20__. Accepted this 12th day of
January, 2001.
LESSEE: LESSOR:
CHAMPION INDUSTRIES, INC. FIRSTAR EQUIPMENT
FINANCE, A DIVISION OF
0000-00 XXXXX XXX FIRSTAR BANK, NATIONAL
ASSOCIATION
XXXXXXXXXX, XX 00000 000 XXXXXXX 000 XXXXX,
XXXXX 000
XX. XXXXX XXXX, XX 00000
By: /s/ Xxxx X. Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
--------------- -----------------------
Print Name: Xxxx X. Xxx Print Name: Xxxxxx X. Xxxxxxxxx
----------- -------------------
Title: Vice President and CFO Title:
---------------------- ------------------------
LEASE SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT NO. 0031293 ("MLA")
BY AND BETWEEN FIRSTAR EQUIPMENT FINANCE,
A DIVISION OF FIRSTAR BANK, NATIONAL ASSOCIATION.("LESSOR")
AND THE UNDERSIGNED LESSEE ("LESSEE")
A. LEASE TYPE: FINANCE LEASE
B. EQUIPMENT LEASED: Lessee confirms that the Equipment described in
Attachment A hereto has been delivered to Lessee; that the Equipment is of the
size, design, capacity and manufacture selected by Lessee and meets the
provisions of any purchase agreements pursuant to which Lessor has acquired
title the Equipment and Lessee irrevocably accepts said Equipment "as-is,
where-is" for all purposes of the MLA as of the date executed by Lessee.
Exhibit (10.2)-p9
Exhibit Section
Exhibit (10.2)
C. TOTAL EQUIPMENT COST: $4 l 5,454.69.
D. TERM: The term of this Lease Schedule ("Schedule") commences on JANUARY
20, 2001, ("Commencement Date") and expires on JANUARY 20, 2006 ("Base Term").
Unless sooner terminated as set forth in the MLA and at Lessor's option, this
Schedule shall be automatically renewed (at Lessor's option) in its entirety on
a semiannual basis ("Renewal Term") unless Lessee gives Lessor written notice of
non-renewal one hundred eighty (180) days prior to the expiration of the Base
Term of this Schedule (and of any Renewal Term).
E. RENT: As rent for the Equipment described in this Schedule, Lessee
shall pay Lessor 60 consecutive rent payments of $8,322.00 ("Rent"), plus any
applicable use tax. The first Rent payment shall be due on JANUARY 20, 2001 and
the remaining Rent payments shall be due on the same day of every month
thereafter during the Base Term of this Schedule (and any Renewal Term).
F. LOCATION: The Equipment shall be domiciled at the locations attached
hereto as Attachment A and shall not be removed therefrom without the prior
written consent of Lessor.
G. LEASE RENEWAL OR PURCHASE: Provided Lessee shall have complied with all
terms and conditions of the MLA and provided Lessee shall not be in default as
defined in Section 12 the MLA, Lessee shall, at least one hundred eighty (180)
days prior to the expiration of the Base Term (or any Renewal Term) of the MLA,
notify Lessor of its intent to exercise one of the following options (except as
provided in Section D above):
1. PURCHASE: Lessee hereby gives notice to Lessor of its intention to
purchase the Equipment at the end of the Base Term. Lessee and Lessor
hereby agree that all and not less than all of the Equipment will be
purchased on an "AS IS, WHERE-IS" basis at a cost of $1.00 at the
expiration of the Base Term. Payment for the purchase of the
Equipment must be received by certified check or wire transfer on or
before the expiration date of the Base Term with any applicable sales
tax. Lessee shall pay all taxes, fees, costs, expenses, and other
charges of any kind pertaining to its purchase of the Equipment and
shall be purchased "AS IS WHERE IS" WITH NO WARRANTIES (EXPRESSED OR
IMPLIED) AS TO ANY MA1TER WHATSOEVER, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THAT NO
SECURITY INTEREST, LIEN OR ENCUMBRANCE AGAINST SUCH EQUIPMENT HAS
BEEN CREATED BY OR THROUGH LESSOR; or
2. RENEWAL: In the event this Schedule has been renewed by Lessee as
provided in Section D herein, Lessee shall pay to Lessor a rental
payment equal to that set forth in Section E herein during the
Renewal Term. This rental payment shall be due and payable on the
same day of each month, as was established in Section D above during
the Renewal Term. In all other respects, this Schedule and the MLA
shall remain unchanged, and in full force and effect, during the
Renewal Period.
H. ADDITIONAL INSURANCE REQUIREMENTS:
1. PROPERTY OR PHYSICAL DAMAGE INSURANCE will be "comprehensive" or "all
risk" coverage. Insured values must be equal to the greater of the
Equipment cost or the Fair Market Value of the Equipment at all
times, and valuation of loss must be on a replacement cost basis.
Such policy providing insurance for damage to the Equipment shall
name "Firstar Bank, National Association and/or its assigns" as loss
payee as Lessor's interest may appear and shall not have a deductible
amount in excess of $5,000 or other policy limitations unsatisfactory
to Lessor without the express written consent of Lessor.
2. GENERAL AND/OR AUTO LIABILITY INSURANCE shall have minimum limits of
$1,000,000 general aggregate, $1,000,000 per occurrence, $1,000,000
per personal injury and $1,000,000 per products - completed
operations aggregate and shall have no deductible without the
express written consent of Lessor. Such policy must include (a)
Lessee as the named insured; (b) "broad form" general liability
coverage or similar form (including, but not limited to, premises
and operations, products and completed operations, employees as
insureds, blanket contractual liability, personal injury and
advertising liability), with owners and contractors coverage, if
necessary; (c) thirty (30) day prior written
Exhibit (10.2)-p10
Exhibit Section
Exhibit (10.2)
notice of cancellation, non-renewal or adverse material change must
be given to Lessor by the insurer and/or the agent.
I. STIPULATED LOSS VALUE: The Stipulated Loss Values during the Base Term
(and any Renewal Term) of this Schedule for each unit of Equipment lost, stolen,
destroyed or damaged beyond repair as determined by Lessor ("Stipulated Loss
Values") are set forth in Attachment B hereto.
J. ADDITIONAL PROVISIONS: The Lessee and Lessor further agree as follows:
None.
K. INCORPORATION BY REFERENCE/ORAL MODIFICATIONS: The MLA executed by Lessee
is incorporated herein in its entirety, and Lessee hereby reaffirms all of the
representations and warranties contained in said MLA. This Schedule constitutes
a separate and independent lease of property from any other Lease schedule. If
any provisions of this Schedule conflict with any provisions of the MLA, the
provisions of this Schedule shall prevail.
LESSEE: LESSOR:
CHAMPION INDUSTRIES, INC. FIRSTAR EQUIPMENT
FINANCE, A DIVISION OF
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
--------------- -----------------------
Print Name: Xxxx X. Xxx Print Name: Xxxxxx X. Xxxxxxxxx
----------- -------------------
Title: Vice President and CFO Title: Vice President
---------------------- --------------
Date: 1/17/01 Date: 1/12/01
------- -------
Exhibit (10.2)-p11
Exhibit Section
Exhibit (10.2)
ATTACHMENT A
EQUIPMENT DESCRIPTION
EQUIPMENT DESCRIPTION ORIGINAL COST EQUIPMENT DOMICILE
--------------------- ------------- ------------------
COUNTY
------
(2) COLOR 20 1/2 X 29 1/8 OFFSET PRINGT PRESS $223,552.75 0000 XXXXXXX XXXX
XXXXXXXX
WITH ALL STANDARD EQUIPMENT AND XXXXXXXXXX, XX 00000
ACCESSORIES
(2) MAXI TOPAZ BOARD 23,944.66
(0) 000XXX XXXX INICJET PROOFER 14't X 21" IMAGE 45,821.62
SIZE W/ NEW FX INCLUDES: MACBETH
SPRECTORNLINE SPECTROL SPECTROSCAN,
PROOFER INSTALLABLE, CYE-K-70921 ARCSV
ADV BKU SW, CYE X-00000 XXXXX XX XX XXXX,
XXX0000X0X 2940 SCSI CARD, #ADP-J-65880
290U2W W/ MAC KTI, #FDSK6700 18.2GB DISC
DRIVE
(1) IS 90 DESKSD SERVER DUL PT3, 00MHZ, 512MB, 54,977.22
3-9.1GB, EXTRM Z-SHBY783AAU010lA, (1) AGFA
APIS PCI INTERFACE, (2) FMEM23400 256MB RAM
UPGRADE, (1) FOPT4230 21" COLOR MNTR, (1)
APOG BLT 103 APC IMP, AD, EX (1) INRIP TRAP
TAIPN SW, (1) ECRL 8000 TAIPAN / TRADE, (1) ASF
COBRA TO TAIPAN RIP UPG, (1) TAIPAN 3.1 WITH
PAC BOARD SN; 022010001134 AND (1) COLOR
CENTRAL FOR WIND / INTEL NT VERSION, (2)
FSDK 7200 9.0GB 7200 RPM DISK
(1) IN90 RACK MOUNT INIERSISTE F/ WINDOWS 67,158.44
NT, (1) NT SERVER SW, (1) 100MHZ 256 MB ECC, (2)
4.3GB UW SCSI DISK, (1) 15" COLOR MONITOR, (l)
IR12-L R2RK UW-2CHN, (6) 18.2GB 14.6" 7200 RAM,
(1) 2.0KVA XXXXXXXX XXX0 (1) 40U-I9' EXPN PACK,
(1) IN RACK USER INTF K, (1) RACK MOUNT
KEYBD, K, (1) S6KX2 FAX/ DATA/ V.MD, (1) GNTC II
1000 BASE SX, (1) PRESTIGE PRIME 3-YR FOR
SERVER, (1) TD -260MT, 450MHZ, 64M, (1)
INTERSITE F/W, (1) 128MB RAM UPGRADE, (10 17"
COLOR MONITOR, (1) KEYBOARD ENGLISH, (1)
PRESITGE PRIME 2-YR, (I) 500 XX XXX0 TAPE
LIBRARY, (1) AIT RACK MOUNT KIT, (1) EPSON 740
INKIET, (1) CABLE / PER FOOT, (3) PIMAC
G3/450MHZ /1 289G
TOTAL EQUIPMENT COST: $415,454.69
NOTE: THIS EQUIPMENT DESCRIPTION IS NOT ALL INCLUSIVE
Lessee initials /s/ XX Xxxxxx initials /s/ MI
------ ------
Exhibit (10.2)-p12
Exhibit Section
Exhibit (10.2)
ATTACHMENT B
STIPULATED LOSS VALUES
THIS ATTACHMENT B is to that certain Lease Schedule No. 001 between Firstar
Equipment Finance, a division of Firstar Bank, National Association ("Lessor")
and CHAMPION INDUSTRIES, INC. ("Lessee"). Terms defined in the MLA and Schedule
shall have the same meanings when used herein. Stipulated Loss Values are
calculated by multiplying original Equipment Cost by the Stipulated Loss Value
Percentage as of the preceding Rent payment date.
Rent Stipulated Rent Stipulated
Payment Loss Value Payment Loss Value
Date Percentage Date Percentage
--------------------------------------------------------------
2/20/01 102.39 8/20/03 57.70
3/20/01 101.06 9/20/03 56.03
4/20/01 99.72 10/20/03 54.35
5/20/01 98.37 11/20/03 52.65
6/20/01 97.02 12/20/03 50.95
7/20/01 95.65 1/20/04 49.23
8/20/01 94.27 2/20/04 47.50
9/20/01 92.88 3/20/04 45.76
10/20/01 91.48 4/20/04 44.01
11/20/01 90.08 5/20/04 42.25
12/20/01 88.66 6/20/04 40.49
1/20/02 87.23 7/20/04 38.71
2/20/02 85.79 8/20/04 36.92
3/20/02 84.34 9/20/04 35.13
4/20/02 82.88 10/20/04 33.23
5/20/02 81.40 11/20/04 31.50
6/20/02 79.91 12/20/04 29.67
7/20/02 78.40 1/20/05 27.84
8/20/02 76.89 2/20/05 25.99
9/20/02 75.36 3/20/05 24.12
10/20/02 73.81 4/20/05 22.25
11/20/02 72.26 5/20/05 20.37
12/20/02 70.69 6/20/05 18.48
1/20/03 69.10 7/20/05 16.58
2/20/03 67.51 8/20/05 14.67
3/20/03 65.90 9/20/05 12.75
4/20/03 64.28 10/20/05 10.82
5/20/03 62.65 11/20/05 8.88
6/20/03 61.01 12/20/05 6.92
7/20/03 59.36
--------------------------------------------------------------
Lessee initials /s/ XX Xxxxxx initials /s/ MI
------ ------
* * STIPULATED LOSS VALUES ARE NOT INTENDED FOR PAYOFF OR BUYOUT PURPOSES, BUT
ONLY AN ESTIMATE OF CASUALTY LOSSES FOR THE EQUIPMENT
Exhibit (10.2)-p13
Exhibit Section
Exhibit (10.2)
CERTIFICATE OF CORPORATE RESOLUTIONS
The undersigned, (Assistant) Secretary of CHAMPION [NDUSTRIES, INC., a
corporation duly incorporated and in good standing under the laws of the State
of West Virginia (hereinafter "Corporation"), does hereby certify to Firstar
Equipment Finance, a division of Firstar Bank, National Association ("Firstar")
as follows:
1. That the undersigned is the duly elected and acting (Assistant) Secretary
of the Corporation;
2. That at a meeting of the Board of Directors of the Corporation, duly
called and convened, at which a quorum was present throughout, the following
resolutions were duly adopted:
RESOLVED, that this Corporation is hereby authorized to enter into a
lease or other financing arrangements with Firstar via a Master Lease Agreement
or a Credit and Security Agreement and/or various other agreements (collectively
"Finance Agreements") with Firstar upon such terms as the officers of this
Corporation deem appropriate. Any officer of this Corporation is hereby
authorized to execute and deliver to Firstar Financing Agreements and, from time
to time, various Lease Schedules, Promissory Notes, and any other documents
deemed necessary or appropriate by Firstar including, without limitation,
amendments to any of the foregoing documents and UCC financing statements; and
to do all things necessary or appropriate to effectuate the agreements between
Corporation and Firstar including, without limitation, pledging and/or granting
a security in such assets of this Corporation as Firstar may require from time
to time. Execution of such documents by any officer shall be conclusive evidence
of such officer's authority, and Firstar shall be under no obligation to make
any additional inquiry of such officer's authority or the genuineness of such
officer's signature.
FURTHERMORE, Corporation hereby ratifies and/or confirms (as the case may
be) all prior actions of its officers as to any of the foregoing.
FURTHER RESOLVED, that at the request of Firstar, any officer of this
Corporation is authorized to sell to Firstar the property described in any
Financing Agreement and related documents; and contemporaneously with such sale,
the Corporation warrants to Firstar that title to such property shall be free
and clear of all security interests, liens, claims, charges and other
encumbrances of any other party and, if applicable, is authorized to lease such
property back from Lessor pursuant to the above described Master Lease
Agreement. Further resolved, that if this Corporation shall be in default under
said Financing Agreements or any other Agreement with Firstar, that any officer
of this Corporation is authorized to surrender to Firstar the property subject
to the Financing Agreements and any assets of this Corporation pledged to
Firstar without the further consent of Board of Directors and/or the
shareholders of this Corporation
FURTHER RESOLVED, that Firstar may rely on these resolutions until the
same have been rescinded by: Corporation and written notice of such rescission
received by Firstar (or its assignee) by certified mail. Such rescission shall
have no effect on the validity of any agreements executed and/or the acts of any
officer or this Corporation undertaken prior to Firstar's receipt of such
notice.
3. That the above-described resolutions are in full force and effect as of
the date of this Certificate of Corporate Resolutions, and have not been amended
or rescinded in any matter. Furthermore, the provisions of said resolution do
not violate any provision of the Articles of Incorporation or the By-Laws of
this Corporation, or applicable law.
IN WITNESS, WHEREOF, the undersigned has caused this Certificate of
Corporate Resolutions to be executed this 22nd day of January, 2001.
(Corporate Seal if Applicable) /s/ Xxxxx X. Xxxxxx
-------------------
(Assistant) Secretary
Exhibit (10.2)-p14
