PACKAGING MANAGEMENT ASSOCIATES, INC.
MASTER LEASE AGREEMENT Master Lease Number:___________
This MASTER LEASE AGREEMENT made as of NOVEMBER __, 1995, by and between
PACKAGING MANAGEMENT ASSOCIATES, INC. ("Lessor") and TEAR DROP PUTTER
CORPORATION ("Lessee"),
WHEREAS, Lessor and Lessee desire to enter into this Master Lease Agreement
to enable Lessee to Lease certain equipment from Lessor by the mutual execution
of one or more schedules to this agreement, all on the terms and subject to the
conditions herein provided;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee, intending to be
legally bound, hereby agree as follows:
1. LEASE. Lessor leases to Lessee, and Lessee leases from Lessor, the equipment
specified in any equipment schedule which shall be executed by Lessor and Lessee
on or after the date hereof (hereinafter called an "Equipment Schedule"), (any
such equipment being hereinafter called "Equipment" and all of the Equipment
taken together being hereinafter collectively called "the Equipment"). All
replacements, parts, repairs, additions, accessions and accessories now or
hereafter incorporated therein or affixed thereto shall immediately become the
property of the Lessor and shall be deemed to be part of the Equipment for all
purposes of this Lease. The term this "Lease" or this "Agreement" as used herein
shall refer to this Master Lease Agreement together with any and all Equipment
Schedules, and the provisions of all such Schedules are, as of their respective
dates, incorporated herein by this reference and deemed for all purposes to be
set forth at length herein.
2. FINANCE LEASE. IN THE EVENT THAT ARTICLE 2a OF THE UNIFORM COMMERCIAL CODE
HAS BEEN ADOPTED IN THE JURISDICTION WHOSE LAWS GOVERN THIS LEASE, AND SUCH
ARTICLE IS DEEMED TO APPLY TO THIS LEASE, THEN THIS LEASE IS INTENDED TO BE A
"FINANCE LEASE" WITHIN THE MEANING OF SUCH ARTICLE. IN SUCH EVENT, THIS LEASE
SHALL NOT BECOME EFFECTIVE UNLESS AND UNTIL LESSEE SHALL APPROVE LESSOR'S
PURCHASE ORDER OR OTHER CONTRACT EVIDENCING LESSOR'S PURCHASE OF THE EQUIPMENT.
NO WARRANTIES. THE EQUIPMENT LEASED HEREUNDER IS LEASED AS-IS. LESSOR NOT
BEING THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT NOR AN AGENT OF EITHER,
MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER
IN REGARD TO THE EQUIPMENT. LESSOR HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS
AND WARRANTIES IN REGARD TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, THOSE
OF MERCHANTABILITY OR FITNESS FOR USE OR FITNESS FOR ANY PARTICULAR PURPOSE OR
OF QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY OR PERFORMANCE. LESSOR
FURTHER DISCLAIMS ANY WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT.
Lessee acknowledges that it has made the selection of each item of Equipment
and of the supplier thereof (the "Supplier"). Such selection was based upon
Lessee's own judgment, and Lessee expressly disclaims any reliance upon
statements made by Lessor. Lessee is aware that Lessor is not in a position to
have any special knowledge, or greater knowledge than Lessee, in regard to the
design, inspection, selection or operation of the Equipment. Lessee further
acknowledges that the Equipment will be shipped directly to Lessee and that
Lessor will have no opportunity to inspect, and will not inspect the Equipment,
and that Lessor will not assist Lessee in inspecting, maintaining or servicing
the Equipment, Lessee acknowledges that Lessor is acquiring the Equipment solely
for purposes of this Lease. Lessor agrees to order the Equipment from the
Supplier thereof, but shall not be liable for specific performance of this Lease
or for damages if for any reason the Supplier delays or fails to fill the order
or to properly install the Equipment or if the Equipment is not accepted by
Lessee.
Lessor hereby informs Lessee that Lessee may have rights under Lessor's
Purchase Order or other contract evidencing Lessor's purchase of the Equipment.
Lessee shall be entitled to whatever rights in regard to the Equipment which
Lessor or Lessee may have against any person other than the Lessor, including
any rights against the Supplier and/or the manufacturer of the Equipment, to the
extent permitted by law. Lessee may contact such Supplier for a description of
such rights.
No agency relationship exists or shall be deemed to exist between Lessor and
any manufacturer, the Supplier or Lessee. No salesman, representative or agent
of any manufacturer or the Supplier is authorized to waive or alter any term or
condition ot this Lease. No representation in regard to the Equipment, this
Lease, or any other matter by any manufacturer or the Supplier shall in any way
affect Lessee's duty to perform the obligations set forth in this Lease and any
Equipment Schedule.
3. TERM AND CONTINUATION; BASIC AND ADDITIONAL RENT; ADVANCE RENT AND SECURITY
DEPOSITS; LATE CHARGE. This Lease shall commence on the date hereof and shall
continue in effect until the term applicable to each and every item of Equipment
in accordance with each applicable Equipment Schedule (each such term being
hereinafter called an "Equipment Term") shall have expired in accordance with
its terms: provided that this Lease shall not terminate except as expressly
provided herein until each and every term, condition and covenant hereof shall
have been fully and satisfactorily observed and performed. Each Equipment Term
shall commence on the earlier of the date the Equipment specified in the
corresponding Equipment Schedule is delivered to and accepted by Lessee, as
evidenced by the execution by Lessee of a Delivery and Acceptance Certificate
(hereinafier called an "Acceptance Certificate") (the "Equipment Acceptance
Date") or on such Rental Commencement Date as may be specified in such Equipment
Schedule, and shall continue for the term set forth therein. Lessee shall
execute an Acceptance Certificate upon delivery to and acceptance of Equipment
by Lessee. If Lessee shaft not accept any item of Equipment. Lessee shall take
all steps necessary to preserve any rights of the Lessor or Lessee against the
Supplier, including, without limitation, refusal to accept delivery and
revocation of acceptance; if Lessee shall not take such steps, Lessee shall be
deemed to have accepted such item of Equipment for all purposes of this Lease
and Lessee's obligations hereunder shall commence. If a Supplier shall duly
tender delivery and any necessary installation of Equipment in any undamaged
condition and Lessee shall not accept such delivery and/or installation, Lessor
shall be entitled to retain the full amount of any security deposits as
liquidated damages for breach of a bargain.
During the Lease Term, Lessee agrees to pay Lessor, as basic rent,
aggregate rentals equal to the sum of all rental payments (including any
security deposits) specified in any Equipment Schedule. The first monthly
payment of basic rent (other than any security deposits) for any item of
Equipment is due on the Equipment Acceptance Date for such Equipment, unless a
different Rental Commencement Date is specified in the applicable Equipment
Schedule, in which case the first payment of basic rent (other than any security
deposits) is due on the Rental Commencement Date specified in such Schedule, and
the remaining rents are due on the same day of each consecutive month
thereafter. Any security deposits shall be due and payable upon the execution
of an Equipment Schedule by Lessee. Lessee shall also pay to Lessor, as
additional rent, amounts equal to any fees, taxes, insurance premiums or other
expenses or disbursements incurred by Lessor in its sole discretion to protect
Lessor's interest in the Equipment or to maintain or restore compliance with the
terms of this Lease. All such additional rent shall be due and payable from
Lessee on demand.
All sums due hereunder including without limitation late charges and any
interest assessed shall be hereinafter referred
to any obligations of Lessee due at the time each such payment is received by
Lessor.
Lessee hereby acknowledges that late payment by Lessee to Lessor of Rent
will cause Lessor to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include,
but are not limited to, substantial processing, accounting and collection costs.
Accordingly, if any installment of Rent shall not be received by Lessor or
Lessor's Assignees within ten (10) days after such amount is due, Lessee shall
pay to Lessor a late charge as specified in each Equipment Schedule. The parties
hereby agree that the amount of such late charge represents a reasonable
estimate of the cost that Lessor would incur in processing each delinquent
payment by Lessee and that such fate charge shall be paid to Lessor as
liquidated damages for each delinquent payment. The parties further agree that
the payment of late charges and the payment of interest provided herein are
distinct and separate from one another in that the payment of interest is to
compensate Lessor for the use of Lessor's money by Lessee while the payment of a
late charge is to compensate Lessor for the additional administrative expense
incurred by Lessor in handling and processing delinquent payments. Acceptance of
any late charge or interest shall not constitute a waiver of default with
respect to the overdue amount, or prevent Lessor from exercising any other
available rights and remedies.
All payments provided for in this Lease shall be payable at Lessor's place
of business or at such other place as Lessor shall direct.
No payment by Lessee or receipt by Lessor of a lesser amount than the Rent
herein stipulated shall be deemed to be other than on account of such Rent, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as Rent be deemed an accord and satisfaction, and Lessor may
accept such check or payment without prejudice to Lessor's right to recover the
balance of such Rent or pursue any other remedy provided by this Lease.
4. NET LEASE; NONCANCELLABLE LEASE; ABSOLUTE OBLIGATION. Lessee agrees and
acknowledges that this Lease is a fully net lease, and that the full amount of
all payments made by Lessee hereunder shall be net to Lessor without subtraction
or abatement for any reason whatsoever. Notwithstanding any provision of this
Lease or of any other instrument or agreement, or any presumption of any present
or future law to the contrary, except as expressly provided herein, this Lease
shall not terminate or lapse, and Lessee's obligations under this Lease shall be
noncancellable, absolute and unconditional and shall not be affected or abated
for any purpose, or as a result or in virtue of any cause or circumstances of
any character whatsoever, including, without limitation: (i) any delay whether
indefinite, material or otherwise in shipment or delivery; (ii) any claim,
counterclaim, demand, recoupment, defense, setoff or indebtedness of any kind or
nature that Lessee may have or assert against Lessor or any affiliate against
any supplier or manufacturer of the Equipment, or any part thereof or therefor,
or against any other person; (iii) any unavailability of Equipment for any
reason, or any lack, invalidity or defect in the title, design, condition,
operation or fitness for use of the Equipment; (iv) any act of God, fire, flood,
war, government regulation, direction or request, accident or labor dispute; (v)
any loss, destruction or interruption in the right or ability to use the
Equipment; (vi) any inadequacy or failure of consideration; (vii) any insecurity
in regard to the Lessor's performance hereunder (whether based upon reasonable
grounds or otherwise); (viii) any failure of inability to the Lessor or any
other person to perform any permitted or required action under this Lease;
(ease) any bankruptcy, insolvency, reorganization, liquidation or similar
proceeding by or against Lessor or any other person; (x) the falsehood,
misleading character or breach of any representation or warranty; (xi) the
failure of Lessor to perform any covenant or agreement contained herein, or any
other act or omission of Lessor under this Lease or any other agreement at any
time existing between Lessor and any other person and the Lessee; or (xii) the
lack or right, power or authority of Lessor to enter into this Lease.
Lessee hereby waives, to the extent permitted by law, all right to
terminate, cancel, revoke or quit this Lease, except in accordance with the
express terms of this Lease. If for any reason this Lease shall be invalid,
unenforceable or void (including, without limitation, if this Lease or any
Equipment Schedule shall be invalid, void or unenforceable in whole or part as a
result of impossibility or impracticality of performance or frustration of the
purpose of this Lease) or if this Lease shall be terminated in whole or in part
by operation of law or otherwise (except as expressly provided in this Lease).
Lessee nonetheless agrees to pay to Lessor an amount equal to each rental
payment at the time such payment would have become due and payable (including,
without limitation, upon the exercise of any of Lessor's remedies under Section
15 of this Lease) in accordance with the terms of this Lease had this Lease not
been frustrated, invalidated or terminated in whole or in part.
5. OWNERSHIP; QUIET ENJOYMENT; IDENTIFICATION; NO LESSEE ASSIGNMENT. Lessee
transfers to Lessor all right, title and interest, including any and all
ownership interest, which Lessee may have in or to the Equipment. Lessee
represents and warrants that it has the legal right to make such transfer and
that such transfer does not constitute a transfer of all or substantially all of
the assets of Lessee, and that such transfer does not constitute all or a
portion of a "bulk transfer" under the Uniform Commercial Code. It is agreed
between the parties hereto that Lessor shall be the owner of, and hold title to,
the Equipment for all purposes throughout each Equipment Term. Any provision
hereof to the contrary notwithstanding, or right, title or interest in or to the
Equipment shall pass to Lessee other than, conditioned upon Lessee's compliance
with and fulfillment of the terms and condition of this lease, the right to
maintain possession and quiet enjoyment of, and use the Equipment as the Lessee
thereof the Lease Term. Lessor may require markings to be affixed to the
Equipment indicating Lessor's interest. LESSEE AGREES NOT TO SELL, MORTGAGE,
HYPOTHECATE, GRANT A SECURITY INTEREST IN, ASSIGN, SUBLET OR OTHERWISE ENCUMBER
OR SUFFER ALIEN UPON OR AGAINST ANY INTEREST IN THIS LEASE OR THE EQUIPMENT OR
TO ALTER OR REMOVE THE EQUIPMENT FROM ITS LOCATION OF INSTALLATION AS SET FORTH
IN THE APPLICABLE EQUIPMENT SCHEDULE. ANY ATTEMPT TO SO SELL, MORTGAGE,
HYPOTHECATE, GRANT A SECURITY INTEREST IN, ASSIGN, SUBLET OR OTHERWISE ENCUMBER
OR SUFFER A LIEN UPON OR AGAINST ANY INTEREST IN THIS LEASE OR THE EQUIPMENT
SHALL BE NULL, VOID AND WITHOUT FORCE OR EFFECT. LESSEE SHALL KEEP THE EQUIPMENT
FREE AND CLEAR OF ALL CLAIMS, LIENS AND ENCUMBRANCES WHATSOEVER.
6. LAWS AND REGULATIONS; TAXES. Lessee agrees to comply with all laws,
regulations and orders relating or pertaining to the Equipment or to this lease
and to notify Lessor of, and to pay to or on behalf of Lessor as and when due,
all license and registration fees and all taxes, assessments, levies, imposts,
duties, and charges of any kind or nature whatsoever, together with any and all
penalties, additions to tax, fines or interest thereon (collectively, "taxes,
fees or other charges") imposed upon Lessor or Lessee by any Federal, state or
local government or taxing authority upon or with respect to the Equipment or
upon the purchase, ownership, delivery, financing, leasing, possession, use,
operation, return or other disposition thereof. There shall be excluded from the
preceding sentence any taxes, fees or other charges based on, or measured by the
net income of Lessor ("Lessor income taxes"). Lessee hereby agrees to indemnify
and hold Lessor harmless from and to defend Lessor against any and all liens,
liabilities, losses, damages (including indirect, special, consequential,
extraordinary or punitive damages), penalties, claims, injuries, investigations,
proceedings, arbitrations, actions, suits, costs, expenses and disbursements
(including reasonable attorney's fees and costs of investigation) arising out of
or pertaining to any taxes, fees or other charges other than Lessor income
taxes. Lessee further agrees that, with respect to any payment or indemnity by
Lessee hereunder, such payment or indemnity shall include any amount necessary
to indemnify and hold Lessor harmless on an after-tax from and against all taxes
required to be paid with respect to such payment or indemnity under the laws of
any Federal, state or local government or taxing authority.
Lessee shall not be responsible under this paragraph for any tax upon the
Equipment with respect to any period following the actual return of the
Equipment at the end of each Equipment term.
7. CONSTRUCTION; TRUE LEASE; SECURITY INTEREST. It is hereby stipulated (i)
that this Agreement shall be construed to be a "true" lease and not a "lease
intended as security" within the meaning of subsection (37) of Section 1-201 of
the Uniform Commercial Code as in effect in the jurisdiction whose laws govern
this Agreement (the "UCC") and, therefore, (ii) that this Agreement is not
subject to Article 9 of such UCC. Such stipulations shall, in accordance with
subsection (2)(b) of Section 1-102 of the UCC, be enforced as the intention and
agreement of the parties and shall further, in accordance with subsections (3)
and (4) of Section 1-102 of the UCC, be so enforced notwithstanding any contrary
provision or presumption of the UCC or of any other
jurisdiction shall notwithstanding the foregoing, determine that this Agreement
is a "lease intended as security" within the meaning of subsection 1-20(37) of
the UCC or shall otherwise determine that the Lessee has any right, title or
interest in the Equipment other or greater than Lessee's interest in the
Equipment as the Lessee thereof pursuant to the express provisions of this
Agreement, then Lessee hereby grants to Lessor as of the date of this Agreement
security interest in all Lessee's right, title and interest in and to the
Equipment as security for all of Lessee's obligations to Lessor of every kind
and nature, whether direct or indirect, absolute or contingent, matured or
unmatured, and whether now in existence or arising hereafter (including, without
limitation, Lessee's obligations of payment and performance arising pursuant to
this Agreement). Any such security interest shall be conclusively presumed and
deemed to have "attached" as of the date of this Agreement and to have been
"perfected" under Article 9 of the UCC by any filing(s) placing notice of this
Agreement on the public record.
8. INDEMNIFICATION. Lessee hereby agrees to indemnify and hold Lessor, its
agents, officers, employees, successors and assigns harmless from and against
any and all liens, liabilities, losses, damages (including, without limitation,
indirect, special, consequential, extraordinary or punitive damages), penalties,
claims, injuries, investigations, proceedings, arbitrations, actions and suits,
costs, expenses and disbursements (including, without limitation, attomey's fees
and costs of investigation) of whatever kind and nature (including, without
limitation, costs and expenses incurred by Lessor in defending claims,
investigations, proceedings, arbitrations, actions and suits brought against
Lessor by Lessee arising out of or in connection with this Lease) in contract,
tort or otherwise, including, without limitation, actions based upon negligence
and/or "products liability" and/or breach of warranty and/or strict or absolute
liability of or by any person, including, without limitation, Lessor (and Lessee
shall give notice to Lessor of and, at its sole expense, defend any and all such
claims, investigations, proceedings, arbitrations, actions or suits), in any way
emanating from, arising out of, resulting from or otherwise connected with the
selection, modification, purchase, inspection. acceptance or rejection of the
Equipment, the ownership of the Equipment, or the transportation, delivery,
lease, financing, possession, maintenance, use condition (including, without
limitation, latent, or other defect, in design or otherwise, whether or not
discoverable by Lessor or Lessee, and any claim for patent trademark or
copyright infringement) return or operation of the equipment by whomever used or
operated, or in any way emanating from, arising out of, resulting from or
otherwise connected with the condition of the Equipment when sold, leased or
otherwise disposed of by, or after use by, Lessee or any sublessee. This
indemnity and the indemnities provided in Section 6 hereof shall continue in
full force and effect notwithstanding any termination of this Lease.
9. USE; PERSONAL PROPERTY; INSPECTION. Lessee, at its own cost and expense, will
cause the Equipment to be operated in accordance with applicable manufacturer's
manuals or instructions by competent and duly qualified personnel only, in
accordance with applicable governmental regulations, if any, and for business
purposes only. Lessee shall at all times keep the Equipment free and clear of
any lien, levy, attachment, encumbrance or charge of any kind whatsoever
(including, without limitation, those referred to in Section 6 hereof), and
shall immediately give Lessor written notice of any of the foregoing.
The Equipment is and shall always remain personal property irrespective of
any use, manner of attachment to realty or classification for taxation or
regulatory purposes. Lessee shall not cause or permit the Equipment to be used
or located in such a manner that it might be deemed affixed to realty under
applicable law without obtaining the prior written consent of Lessor. Upon any
request for such consent, or at any other time, Lessor may demand, and Lessee
shall thereupon obtain, the written agreement of the owner and the mortgagee, if
any, of such realty as to the right, title and interest of Lessor in the
Equipment and waiver or, as Lessor may agree, subordination of the rights of
such owner and mortgagee.
Lessor shall have the right from time to time during normal business hours
to enter upon Lessee's premises or elsewhere for the purpose of confirming the
existence, condition, and proper maintenance of the Equipment.
10. RISK OF LOSS. Lessee assumes and shall be solely responsible for the entire
risk of use and operation of the Equipment, and for each and every cause or
hazard, and any and all loss and damage to any or all of the Equipment, whether
arising through operation or otherwise. Such responsibility shall commence upon
delivery of the Equipment to Lessee. Lessee further agrees to give Lessor prompt
notice of any damage to, or loss or destruction of, the Equipment, or any part
thereof. In the event of any damage to, or partial destruction of the Equipment,
Lessee, at its sole cost and expense, shall promptly repair the Equipment,
restoring it to at least its condition prior to such damage or partial
destruction and at least the condition in which it was required to be assuming
Lessee had met all its obligations in regard to maintenance of the Equipment. In
the event of the total loss, or theft or, as determined in the sole judgment of
Lessor, complete destruction or damage beyond repair to the Equipment, or if
obsolescence shall, as determined in the sole judgment of Lessor, render the
repair of the Equipment not economically justifiable. Lessee shall pay to Lessor
with respect thereto the sum of (a) all amounts then due and payable hereunder,
including, without limitation, all rent theretofore accrued and unpaid
hereunder, plus (b) the then net present value (discounted at eight percent (8%)
per annum of (i) the aggregate amount of rent and other amounts payable
hereunder for and with respect to the unexpired portion of the Lease Term, and
(ii) the anticipated residual value of the Equipment at the end of the Lease
Term If there shall be appended hereto a Schedule of Stipulated Values, then
Lessee shall, instead of the amount required by clause (b) of this paragraph,
pay to Lessor the Stipulated Value of the Equipment as provided in such Schedule
as of the date of such loss, theft, destruction or damage.
For purposes of this Section 10 and Section 15 of this Lease, except as set
forth in the applicable Equipment Schedule, the anticipated residual value of
the Equipment upon expiration of the Lease Term shall be determined as follows:
The anticipated life of the Equipment shall be deemed to be equal to the class
life of equipment of the classification into which the Equipment falls in
accordance with the class life system utilized to determine depreciation
allowances pursuant to Section 168 of the Internal Revenue Code. The anticipated
residual value of the Equipment shall be computed by assuming that the Equipment
depreciates from the date that it was new on a straight-line basis to a zero
salvage value over the period of such anticipated life and employing a half year
convention.
Provided no event of default has occurred under this lease, any proceeds of
insurance received by Lessor with respect to any loss, damage or destruction
from policies of insurance maintained by Lessee shall be applied to reimburse
Lessee for costs incurred and paid by Lessee in repairing damaged Equipment or
credited against the total amount payable to Lessor with regard to the
Equipment, as the case may be, as provided in this Section 10.
11. INSURANCE. Lessee shall obtain, and maintain for the entire term of this
Lease until the actual return of each item of Equipment by Lessee pursuant to
Section 17 hereof, from financially second insurance carriers, property damage
and liability insurance and insurance against loss or damage to the Equipment,
including, without limitation, loss by fire (including so-called extended
coverage), theft, "mysterious disappearance," collision, earthquake, flood and
such other risks of loss as are customarily insured against on the type of
Equipment leased hereunder by businesses of the type in which Lessee is engaged,
in such amount, in such form and with such insurance carriers as shall be
satisfactory to Lessor; provided, however, that (i) the amount of insurance
(without deductible or co-insurance) against loss or damage to the Equipment
shall not be less than the greater of the fair market value or the amount
payable in the event of a total loss pursuant to Section 10 hereof; (ii) the
amount of Lessee's liability insurance shall under no circumstances be less than
$500,000.00; (iii) if any insurance requirements shall be separately scheduled,
the amounts of property damage and/or liability insurance shall not be less than
the amounts slated in the insurance Schedule attached to this Lease; and (iv)
all insurance carrier(s) shall have a Best rating of or exceeding A. Each
insurance policy shall name Lessor or Lessor's designee as an additional insured
and loss payee, and shall contain a clause requiring the insurance carrier to
give Lessor at least ten (10) days' written notice of any alteration in the
terms of such policy or of the cancellation thereof. Lessee shall from time to
time furnish to Lessor such evidence of insurance as Lessor shall require,
including, without limitation, a copy of Lessee's insurance policy(s) with
appropriate endorsement(s), an insurance "binder" and a certificate of insurance
coverage as in effect; provided, however, that Lessor shall be under no duty
either to ascertain the existence of or to examine such evidence of insurance or
to advise Lessee in the event of such insurance coverage shall not comply with
the requirements hereof; no failure to so advise Lessee shall constitute a
waiver of the requirements of this Section 11. Lessor may, but shall have no
obligation to purchase insurance as required by this Section (or to take any
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interest in the Equipment) with the entire cost thereof (including, without
limitation, any charges assessed by Lessor for such service) borne by Lessee,
whenever Lessor shall not be reasonably satisfied as to the amount (including
deductible and insurance amount) or type of coverage maintained, the terms or
conditions of such coverage or the carrier(s) by whom such coverage is
underwritten.
12. MAINTENANCE; REPAIRS. Lessee, at its own cost, and expense, shall keep the
equipment in good repair, condition and working order, shall keep the Equipment
appropriately protected from the elements, and shall furnish all required parts
and servicing (including any contract service necessary) to maintain the benefit
of any warranty of the manufacturer). All such parts shall immediately become
the property of Lessor and part of the Equipment for all purposes hereof.
13. FINANCIAL STATEMENTS. So long as this Lease is in effect, Lessee shall
furnish current financial statement satisfactory to Lessor as to form,
preparation and content, but which shall include at least an annual statement
prepared by Lessee's independent public accountants (which annual statement
shall be prepared at least as a review by such accountants, and shall be
certified by such accountants if it constitutes an audit) delivered to Lessor
not later than 120 days after the end of Lessees fiscal year; which financial
statements shall be in comparative form for such fiscal year and prior fiscal
year(s), provided, however, that if Lessee is registered pursuant to Section 12
of the Securities Exchange Act of 1034, as amended, and if Lessee shall furnish
to Lessor within thirty (30) days of their filing, all quarterly and annual
reports filed by Lessee with the Securities and Exchange Commission pursuant to
the requirements of said Act, Lessee shall not be required to delivery any other
financial statements under this Section 13. Each financial statement (or report)
submitted by Lessee to Lessor pursuant to the provisions of this Section 13
shall be accompanied by a certificate signed by the chief executive officer, the
chief financial officer of Lessee, certifying (i) that such financial statement
(or the financial statement which was included in such report) was prepared in
accordance with generally accepted accounting principles consistently applied
and fairly and accurately presents the Lessee's financial condition and results
of operations for the period to which it pertains, and (ii) that no event of
default has occurred under this Lease during the period to which such financial
statement pertains. Should an event of default occur hereunder, Lessor shall
also have the right (i) to demand, and Lessee agrees to provide, quarterly
statements in comparative form for the reporting quarter for the portion of the
year then ended and for the comparable period(s) of the prior fiscal year(s).
and (ii) upon reasonable prior notice, to inspect the books and records of
Lessee, wherever maintained, which right to inspect shall include the right to
copy and abstract from said books and records and to make photocopies of said
books and records and to converse with Lessee's officers, employees and agents
and its independent public accountants.
14. EVENTS OF DEFAULT. An event of default shall occur hereunder if (i) Lessee
fails to pay, as and when due, any installment of Rent or any other payment
required hereunder; or (ii) Lessee fails to maintain insurance, or, as and when
requested by Lessor, to supply (or cause the carrier(s) to supply) evidence of
insurance, in each case as required by Section 11 hereof, or fairs to deliver or
cause to be delivered unqualified financial statements complying in form and
substance with Section 13 hereof, or (iii) Lessee fails to perform or observe
any other covenant or agreement to be performed or observed by it hereunder
orbreaches any warranty contained herein or made in connection herewith, and
such failure or breach continues unremedied for five (5) days after written
notice thereof to Lessee; or (iv) Lessee or any guarantor of this Lease makes
any representation or warranty herein or in connection herewith which proves, in
the sole judgment of Lessor, to be incorrect or materially misleading; or (v)
entry of any judgment, issuance of any garnishment or attachment against any
property of Lessee; or (vi) Lessee fails to pay as and when due any indebtedness
of Lessee, whether or not to Lessor (unless in the case of indebtedness to a
person other than Lessor, Lessee actively contests the same in good faith,
having posted, in the sole judgment of Lessor, adequate security for the payment
thereof) arising independently of this Lease; or (vii) Lessee defaults under any
material agreement to which it is party; or (viii) Lessee removes or attempts to
remove from its location of installation as provided in the applicable Equipment
Schedule, or sells or attempts to sell, or mortgages, hypothecates, grants and
security interest in, assigns, sublets, encumbers, or suffers a lien upon or
against any prior written consent of Lessor or fails to keep any Equipment in
Lessee or any guarantor of this Lease becomes insolvent or bankrupt or makes an
assignment of the benefit of creditors or files a voluntary petition in
bankruptcy or an involuntary petition in bankruptcy is filed against it, which
petition is not dismissed within thirty (30) days, or consents to the
appointment of a Trustee or Receiver or Liquidator or any thereof shall be
appointed for Lessee or for a substantial part of its property with or without
its consent; or (x) Lessee or any guarantor of this Lease suffers, in the
judgment of Lessor, a material adverse change in its financial condition,
business or operations from the date hereof; or (xi) at any time Lessor believes
in good faith that the prospect of Lessee's payment or performance in accordance
with the provisions of this Lease is impaired, or that any of the Equipment is
at risk.
Any amount due from Lessee to Lessor hereunder which is not paid within ten
(10) days after such amount is due shall bear interest at the lesser of (i)
fifteen (15%) percent per annum or (ii) the maximum rate per annum which Lessor
is permitted by law to charge (the "Default Interest Rate") from the date such
payment is due until paid.
15. REMEDIES. Lessee acknowledges that Lessor is fully entitled to the benefit
of its bargain. Such benefit to Lessor under the Lease includes, without
limitation, the value of rental payments for the full term of the Lease as and
when due and Lessor's residual interest in the Equipment upon expiration of each
Equipment Term. Should an event of default occur under this Lease, some or all
of Lessor's benefit may be lost or impaired. As a result, Lessee agrees and
acknowledges upon the occurrence of an event of default to pay to Lessor the
benefit of its bargain including the present value Lessor's profit and any and
all amount necessary to fully compensate Lessor for any loss or damage to
Lessor's residual interest in the Equipment and that the liquidated damage
provisions set forth in this Section 15 are reasonable in light of the
anticipated harm to be caused to Lessor by such an event of default.
In particular, and not in limitation of the foregoing, upon the occurrence
of any event of default, or at any time thereafter, Lessor may, in its sole
discretion, do any one or more of the following: (i) terminate this Lease; (ii)
declare all sums due and to be become due hereunder for the full term of the
Lease immediately due and payable; (iii) demand that Lessee (and Lessee agrees
that it will) return any or all Equipment to Lessor in the condition required by
Section 17 hereof: (iv) without demand or legal process, enter the premises
where any Equipment is located and take immediate possession of and remove the
same, or render the same unusable, without liability of Lessor or its agents for
any damages whatsoever resulting from any such action; (v) use Lessee's place of
business for the purpose of displaying and/or disposing of the Equipment (all at
no expense to Lessor); (vi) by written notice to Lessee, demand that Lessee (and
Lessee agrees that it will) assemble the Equipment and make it available to
Lessor at a place designated by Lessor which is reasonably convenient to Lessor
and Lessee; (vii) retain all prior payments; (viii) sell, lease or otherwise
dispose of any or all of the Equipment at public or private sale or in any other
commercially reasonable anner in bulk or in parcels and with or without having
the Equipment (and to the extent permitted by applicable law. Lessee waivers
any right to any proceeds with respect thereto); (ease) immediately and without
notice or other action set off against any of Lessee's liabilities to Lessor any
money owed by Lessor or any affiliate of Lessor in any capacity to Lessee,
whether or not due, and such right of set-off shall be deemed to have been
exercised and a charge against any such money shall be deemed to have been made
immediately upon the occurrence of an event of default through actual book
entries may be made at some time subsequent thereto (for purposes of this
Section 15, the term "affiliate" refers to any corporation under common
ownership with Lessor); (x) recover from Lessee, and Lessee agrees that it will
pay (as liquidated damages for loss of a bargain and not as a penalty), the sum
of the contractual value at the time of payment to Lessor of:
(A) any and all amounts then due and payable under the Lease; plus
(B) all amounts not then due and payable which are to become due and
payable under the Lease for the remainder of the Lease Term plus
(C) the anticipated residual value of the Equipment upon expiration of the
Lease Term:
or (xi) exercise any right or remedy which may be available to it under any
applicable law or proceed by court action to enforce the terms hereof or to
recover damage for the breach hereof.
For purposes of subclause A of clause (x), contractual value shall be
computed at the Default interest Rate (as denied in Section 14 hereof) on all
sums from the date due under this Lease until paid. For purposes of subclauses
(B) and (C) of clause (x), contractual value shall be computed as the net
present value at the time of payment to Lessor (discounted at the rate of eight
percent (8%) per annum). For purposes of subclause (C) of clause (x), except as
set forth in the applicable Equipment Schedule, the anticipated residual value
of the Equipment upon expiration of each Equipment Term shall be determined in
accordance with the procedure set forth in Section 10 of this Lease.
Lessee shall be liable for any and all costs and expenses incurred by Lessor
in connection with any event of default hereunder or the exercise of any of
Lessor's rights or remedies, including (without limitation) any and all legal
fees and expenses, transportation and other repossession expenses, storage
expenses and expenses incurred in connection with restoring the Equipment to the
condition required pursuant to Section 17 hereof or necessary to render the
Equipment marketable. Lessee shall also be responsible for any and all
incidental and/or consequential damages suffered by Lessor as a result of an
event of default hereunder.
In the event Lessor shall dispose of the Equipment after default and
repossession by sale, release or otherwise, Lessee shall receive a credit for
the proceeds of such disposition, net of any sales commissions and other costs
and expenses incurred by Lessor in connection with such disposition. In the
event such disposition is by re-lease, the proceeds of such disposition shall be
deemed to be equal to the net present value at the time of re-lease (discounted
at the rate per annum of three percent (3%) in excess of the rate which United
States National Bank of Oregon from time to time identifies as its prime rate as
in effect on the date of such re-lease), including the anticipated fair market
value of the Equipment upon the expiration of the term of such release computed
in accordance with the procedure set forth in Section 10 of this Lease.
No remedy referred to in this Section 15 is intended to be exclusive but
each shall be cumulative and in addition to any other remedy referred to above
or otherwise available to Lessor under applicable law or in equity. To the
extent permitted by applicable law, Lessee hereby waives any rights now or
hereafter conferred by statute or otherwise which may require Lessor to sell,
lease or otherwise use any Equipment in mitigation of Lessor's damages (as set
forth in this Section 15 or otherwise), or which may give the Lessee the right
to treat this Lease as terminated or which may otherwise limit or modify any of
Lessors rights or remedies hereunder.
16. NOTICES. Any notices or demands required to be given herein shall be given
to the parties in writing by United States first class mail (express, certified
or otherwise) at the parties respective principal places of business as set
forth in the applicable Equipment Schedule or to such other addresses as the
parties may hereafter substitute by written notice given in the manner
prescribed in this paragraph.
17. RETURN OF EQUIPMENT. Upon the expiration of each Equipment Term in
accordance with the corresponding Equipment Schedule, or upon the demand of
Lessor as set forth in Section 15 hereof, Lessee, at its own risk and expense,
will immediately pack and/or crate the Equipment specified in such Schedule for
shipment by a common carrier or such other transportation as Lessor may require,
to such location as Lessor shall designate, and return such Equipment to Lessor
in the same condition as when delivered to Lessee at the commencement of this
Lease, ordinary wear and tear excepted. Upon the termination of this Lease at
the end of such Equipment Term and receipt of such Equipment, Lessor shall
return Lessee's security deposit as set forth in such Equipment Schedule, net of
any amounts necessary to restore such Equipment to the condition required
hereunder.
18. FILINGS; FURTHER ASSURANCES. Lessee will execute, acknowledge and deliver in
recordable or fileable form any document or instrument, including, without
limitation, any financing statement, fixture filing, continuation statement or
mortgage, or any amendment to any of the foregoing, as required by Lessor to
carry out the intent and purposes of this Lease, including, without limitation,
to place notice of this Lease on the public record or to perfect or maintain any
security interest created pursuant to Section 7 hereof in full force and effect.
Lessee hereby grants Lessor a power of attorney, and appoints Lessor, Lessee's
attorney-in-fact, to sign Leasee's name on, and to execute on Leasee's behalf
any such document or instrument. Lessee will also promptly execute and deliver
to Lessor such further documents and take such further actions as Lessor may
request in order to more effectively carry out such intent and purposes. Any
filing made under the Uniform Commercial Code or similar law in any jurisdiction
shall provide notice on the public record of this Lease and all of Lessor's
right, title and interest in and to the Equipment. No such filing shall be a
factor in any determination as to whether this Agreement is a "lease intended as
security" within the meaning of subsection (37) of Section 1-201 of the UCC or
shall suggest, admit or constitute evidence that Lessee has any right, title or
interest in or to the Equipment other than as the lessee thereof pursuant to the
express provisions of this Agreement.
19. LESSOR NOT LIABLE FOR CONSEQUENTIAL DAMAGES. Lessor shall not be liable for
any incidental or consequential damages under any circumstances whatsoever,
including, without limitation, any failure of Lessor to comply with the
provisions of this Lease.
20. MISCELLANEOUS. THIS LEASE, ANY AMENDMENT HERETO OR MODIFICATION HEREOF AND
ANY WAIVER OF ANY CONDITION OR PROVISION CONTAINED HEREIN SHALL NOT BE VALID
UNLESS IN WRITING AND SIGNED BY THE PARTY TO BE CHARGED THEREBY. NO FAILURE ON
THE PART OF LESSOR TO EXERCISE, OR DELAY IN EXERCISING, ANY RIGHT, POWER,
PRIVILEGE OR REMEDY HEREUNDER SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER, PRIVILEGE OR REMEDY HEREUNDER
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF FOR THE EXERCISE OF ANY OTHER
RIGHT, POWER, PRIVILEGE OR REMEDY. NO WAIVER OF ANY EVENT OF DEFAULT HEREUNDER
SHALL CONSTITUTE A WAIVER OF ANY OTHER EVENT OF DEFAULT HEREUNDER, OR A WAIVER
OF ANY RIGHT, POWER, PRIVILEGE OR REMEDY OF LESSOR HEREUNDER.
This Lease is intended to take effect as a sealed instrument and shall be
binding upon and inure to the benefit of the parties hereto and their permitted
successors and assigns. Any term, clause or provision of this Lease which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining terms or clauses of such provision or the remaining provisions
hereof; and any prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such term, clause or provision in any other
jurisdiction. Lessee agrees and acknowledges that time is of the essence with
respect to the performance of its obligations under this Lease, including,
without limitation, its obligations to promptly make all payments required
hereunder. All amounts due Lessor hereunder, including, without limitation,
amounts due to reimburse Lessor for payments made by Lessor in accordance with
the provisions hereof, shall bear interest at the Default Interest Rate from the
date due until paid. The Lessee further agrees and acknowledges that the Lessee
has no right to prepay or renew this Lease. The captions in this Lease are for
convenience only and shall not define or limit any of the terms hereof. Unless
otherwise provided in the applicable Equipment schedule, this Lease shall in all
respects be governed by, and construed in accordance with, the laws of the state
or commonwealth in which the Equipment is located as specified in Recital (f) of
each Equipment Schedule. Lessee agrees that any action arising out of this
Lease may be litigated under the laws of such state or commonwealth, and
submitted to the jurisdiction of such state or commonwealth, and submitted to
the jurisdiction or such state or commonwealth, and that service of process by
certified mail, return receipt requested, will be sufficient to confer personal
jurisdiction over the Lessee in such state or commonwealth.
Lessee acknowledges that it has received a copy of this Lease. should
Lessee so request, Lessee shall be entitled to receive an additional copy
hereof.
By Lessee's execution of this Lease Lessee assigns to Lessor any and all
rights Lessee may have under any purchase order(s) issued by Lessee insured to
the Equipment. This Lease copy to come-- copy to come--- copy to come--- copy
to come-
until it shall have been approved by Lessor and executed at one of Lessor's
headquarters offices by an authorized officer of Lessor.
21. REPRESENTATIONS AND WARRANTIES BY LESSEE. If Lessee is a corporation, Lessee
represents and warrants that (i) it is duly-organized, validly-existing and in
good standing in the state of its incorporation and is qualified to do business
wherever such qualification is required; (ii) it has the lawful corporate power
and authority to conduct its business, own its assets and to execute, deliver
and comply with the provisions of this Lease, any Equipment Schedule and any
related documentation: and (iii) the execution and delivery of this Lease and
compliance by Lessee with the provisions hereof have been duly authorized by all
necessary corporate action. If Lessee is an individual or a partnership, Lessee
represents and warrants that Lessee has the legal capacity to enter into this
Lease. Lessee represents and warrants that the execution, delivery and
compliance with the provisions of this Lease do not and will not violate the
provisions of any applicable law or government regulation.
Lessee represents and warrants that it is not in default of any evidence of
indebtedness, loan agreement, capital lease, security instrument or other
material agreement to which Lessee is party, and that the execution and delivery
of this Lease any Equipment Schedule and any related documentation does not and
will not constitute or result in any such default. Lessee is not a party to any
agreement which has or could have a material adverse effect on Lessee's ability
to satisfy its obligations under this Lease. Lessee represents and warrants that
(i) it has filed all Federal, State, and local tax returns required under
applicable law and paid all taxes, charges and fines and assessments shown on
such returns or otherwise imposed upon or assessed against Lessee when due; (ii)
there are no judgments outstanding against Lessee or pending actions or
proceedings before any court or administrative body which result or could result
in a material adverse change in Lessee's business or financial affairs; and
(iii) no consent of shareholders or of any public or governmental authority or
agency is necessary in connection with the execution, delivery or compliance
with the provisions of this Lease and any related documentation.
22. TRANSFER OF ASSETS; MERGER. Lessee will not transfer or dispose of all of
its assets, or any substantial portion thereof, to any person or entity
(including, without limitation, to a corporation wholly or partially owned or
controlled by Lessee) other than in the ordinary course of its business (and, if
Lessee is a corporation, will not merge or consolidate with or into another
corporation, liquidate or dissolve), unless (a) Lessor shall have been notified
at least thidy (30) days prior to any such event; (b) Lessor shall have
consented in writing to such event; and (c) the transferee of such assets or
surviving or successor corporation, as the case may be, shall, by the execution
of a written instrument, assume all the obligations of Lessee to Lessor.
23. NO REPRESENTATIONS OR AGREEMENTS BY LESSOR AS TO INCOME TAX TREATMENT OR
BENEFITS. No representation or warranty is or has been made by Lessor as to the
treatment for Federal, state or local income tax purposes of this Lease or the
Equipment herewith. Lessor has not agreed to take or refrain from taking any
action whatsoever in regard to such treatment.
24. ASSIGNMENT BY LESSOR, LESSEE ACKNOWLEDGES THAT LESSOR MAY SELL OR ASSIGN ITS
INTEREST IN THE EQUIPMENT OR THIS LEASE WITHOUT ANY OTHER OR FURTHER CONSENT BY
LESSEE. LESSEE AGREES THAT IN THE EVENT OF THE ASSIGNMENT OF THIS LEASE, LESSEE
SHALL, UPON THE DIRECTION OF LESSOR, PAY DIRECTLY AND PROMPTLY TO LESSOR'S
ASSIGNEE WITHOUT ABATEMENT, DEDUCTION OR SETOFF, ALL AMOUNTS WHICH BECOME DUE
HEREUNDER, AND THAT, UPON THE ASSIGNMENT OF THIS LEASE, LESSOR'S ASSIGNEE SHALL
HAVE ANY AND ALL RIGHTS, IMMUNITIES AND DISCRETIONS OF LESSOR HEREUNDER, AND
SHALL BE ENTITLED TO EXERCISE ANY REMEDIES OF LESSOR HEREUNDER, AND ALL
REFERENCES HEREIN TO LESSOR SHALL INCLUDE LESSOR'S ASSIGNEE (EXCEPT THAT,
NOTWITHSTANDING ANY PROVISIONS OR PRESUMPTION OF APPLICABLE LAW, SUCH ASSIGNMENT
SHALL NOT CONSTITUTE A DELEGATION OF LESSOR'S OBLIGATIONS HEREUNDER, AND LESSOR
SHALL CONTINUE TO BE CHARGEABLE WITH SUCH OBLIGATIONS, AND ASSIGNEE SHALL NOT BE
CHARGEABLE WITH ANY OBLIGATIONS OR LIABILITIES HEREUNDER OR IN RESPECT HEREOF)
AND LESSEE FURTHER (AND NOT IN LIMITATION OF THE FOREGOING) COVENANTS AND AGREES
THAT IT WILL NOT ASSERT AGAINST LESSOR'S ASSIGNEES ANY DEFENSE, COUNTERCLAIM OR
SETOFF WHICH LESSEE MAY HAVE AGAINST LESSOR.
25. ENTIRE AGREEMENT. This Agreement, any Equipment Schedule, and any related
documents and instruments executed in connection herewith on or after the date
hereof by authorized officers of Lessee and Lessor, represent the entire
agreement of the parties hereto with regard to the subject matter hereof and is
intended to be a complete and exclusive statement of such agreement. Any and all
prior understandings or agreements with regard to such subject matter are merged
heroin and superseded hereby. There are no understandings, agreements,
representations or warranties, express or implied, except as expressly provided
in this Lease, any Equipment Schedule or in such related documents and
instruments.
LESSEE'S INITIALS AS TO SECTION 25:____________
IN WITNESS WHEREOF, the Lessor and the Lessee have each caused this Master
Lease Agreement to be duly executed as of the day and year first above written.
[SEAL]
ATTEST OR WITNESS: TEAR DROP PUTTER CORPORATION
[Lessee]
By:
-------------------------------------- -------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: SECRETARY Title: PRESIDENT
--------------------------------------------------------------------------------
[SEAL]
Attest: PACKAGING MANAGEMENT
ASSOCIATES, INC.
By:
-------------------------------------- -------------------------------
PACKAGING MANAGEMENT ASSOCIATES, INC. GUARANTY [INDIVIDUAL]
MASTER LEASE NO.___________________
In order to induce PACKAGING MANAGEMENT ASSOCIATES, INC. (hereinafter called the
("Lessor") to enter into the Master Lease Agreement dated as of NOVEMBER _______
____________, 1995 (said Master Lease Agreement, together with any and all
schedules and riders thereto, being hereinafter called the "Lease Agreement")
with, or otherwise directly or indirectly making equipment available to TEAR
DROP PUTTER CORPORATION (hereinafter called the "Lessee"), and/or to induce
Lessor to grant to Lessee such renewals, extensions, forbearances, releases of
collateral or other relinquishments of rights, whether in connection with the
Lease Agreement or otherwise, as Lessor may in its sole discretion deem
advisable, and in consideration of any equipment lease agreements or other
agreements heretofore or hereafter entered into between Lessor and Lessee (any
and all such equipment lease agreements, including the Lease Agreement, entered
into between Lessee and Lessor together with any and all schedules and riders
thereto and any and all other instruments or agreements including, without
limitation, security agreements, pledge agreements and assignments, executed and
delivered by Lessee in connection therewith, being hereinafter collectively
called the "Guaranteed Agreements"), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
EACH OF THE UNDERSIGNED (EACH OF WHOM IS HEREINAFTER CALLED A "GUARANTOR"),
INTENDING TO BE LEGALLY BOUND, HEREBY JOINTLY AND SEVERALLY GUARANTEES THE FULL,
PROMPT, COMPLETE AND FINAL PAYMENT AND PERFORMANCE OF ALL THE LESSEE'S
OBLIGATIONS PURSUANT TO THE LEASE AGREEMENT OR ANY OF THE OTHER GUARANTEED
AGREEMENTS OR IN ANY WAY ARISING THEREFROM AND ANY AND ALL OTHER OBLIGATIONS AND
LIABILITIES OF LESSEE TO LESSOR, WHETHER NOW IN EXISTENCE OR ARISING HEREAFTER,
AND WHETHER DIRECT OR INDIRECT, CONTINGENT OR ABSOLUTE, OBLIGATIONS OR
UNMATURED, SECURED OR UNSECURED, AND HOWEVER CONTRACTED OR ARISING (ALL SUCH
OBLIGATIONS AND LIABILITIES BEING HEREINAFTER CALLED THE "OBLIGATIONS").
Each Guarantor hereby promises to pay Lessor when due, on demand, all
indebtedness of any kind or nature emanating from the Lease Agreement, any of
the other Guaranteed Agreements or the Obligations (including, without
limitation, if an event of default shall occur under the Lease Agreement or any
of the other Guaranteed Agreements, payment on demand of all unpaid sums to
become due under the defaulted Agreement for the entire term thereof), whether
now or hereafter arising and however and whenever evidenced (all such
indebtedness being hereinafter called the "Indebtedness"); and each Guarantor
agrees to indemnify and hold Lessor harmless from and against any and all
losses, liabilities and costs emanating from any failure of Lessee to fully,
promptly and completely satisfy the Obligations and pay the indebtedness (such
losses, liabilities and costs being referred to hereinafter as the
"Indemnities"). For purposes hereof, (i) "losses, liabilities and costs" shall
include (without limitation), all losses, liabilities, obligations, claims,
demands, judgments, costs and expenses of whatever kind or nature (including,
without limitation, attorneys' fees) and (ii) "emanating" from an event or cause
shall include (without limitation) in any way directly or indirectly being
caused by or in any other way arising out of such event or cause.
Each Guarantor hereby waives any notice of default or nonpayment or of late or
inadequate satisfaction in regard to the Obligations and the Indebtedness. In
particular (and not in limitation of the foregoing), each Guarantor hereby
agrees that in enforcing this Guaranty the Lessor shall not be required (i) to
demand payment of the amount due (known as "demand"; (ii) to present for payment
any evidence of any of the Indebtedness or the Obligations (known as
"presentment" or "presentment for payment"); (iii) to give notice that amounts
due have not been paid (known as "notice of dishonor"); or (iv) to obtain an
official certification of nonpayment (known as "protest") or to give any
Guarantor notice of any such "protest"; and each Guarantor hereby waives demand,
presentment, presentment for payment, notice of dishonor, protest and notice of
protest, as aforesaid. Each Guarantor hereby further waives notice of
acceptance hereof and any and all other notices to which such Guarantor may be
entitled. Each Guarantor hereby consents and agrees that without any further
notice to, or assent by Guarantor, the liability of Lessee or any guarantor of
the Obligations or Indebtedness may from time to time, in whole or in part, be
extended, renewed, continued, amended, modified, composed, accelerated,
supplemented, compromised, settled or released in Lessor's sole discretion, and
that any collateral for any of the Obligations or Indebtedness or for any
guaranty thereof (including this Guaranty) may from time to time, in whole or
part, be exchanged, sold or surrendered in Lessor's sole discretion. Each
Guarantor hereby agrees that no such extension, renewal, continuation,
amendment, modification, composition, acceleration, supplement, compromise,
settlement, release, exchange, sale or surrender shall in any way impair, affect
or release the liability of any Guarantor hereunder or constitute a waiver of
any of Lessor's rights hereunder.
This Guaranty is unlimited, absolute, irrevocable and unconditional and shall
continue in full force and effect until all the Obligations, Indebtedness and
Indemnities shall have been fully, completely and finally satisfied and paid.
The obligations of each Guarantor hereunder shall continue and survive the
repossession of any equipment or other property leased pursuant to the Lease
Agreement Or any of the other Guaranteed Agreements (or any property in which
the Lessor has a security interest securing any of the Obligations, Indebtedness
or Indemnities) whether or not any such repossession constitutes an "election of
remedies" against the Lessee or any other person. Each Guarantor agrees to be
obligated hereunder notwithstanding any termination of the Lease Agreement in
whole or part by operation of law or any unenforceability or invalidity of the
Lease Agreement or any of the other Guaranteed Agreements for any reason
whatsoever (including without limitation, invalidity or voidness ab initio
and/or partial or complete unenforceability as a result of imposeibility or
impracticability of performance or frustration of the purpose of the Lease
Agreement or any of the other Guaranteed Agreements). The obligations of the
Guarantors hereunder shall not be subject to any abatement, setoff, defense or
counterclaim for any cause whatsoever.
Each Guarantcr hereby agrees that its obligations hereunder are direct and
primary and that the Lessor may proceed directly and in the first instance
against each or any Guarantor or combination of Guarantors and have its remedy
hereunder without first being obliged to resort to any other right or remedy or
security for any of the Obligations, Indebtedness or Indemnities; and each
Guarantor hereby waives any right to require the Lessor to proceed against the
Lessee or to proceed against any other Guarantor or to proceed against any other
guarantor of the Obligations or Indebtedness, or to proceed against any security
held from the Lessee or to pursue any other action in Lessor's power whatsoever.
If there shall be any securities for any of the Obligation or Indebtedness, or
for the obligations of any Guarantor hereunder, or for the obligations of any
other guarantor of any of the Obligations or Indebtedness, the Lessor may
proceed against and/or enforce any or all of such securities in whatever order
in may, in its sole discretion, deem appropriate. Any amount(s) received by the
Lessor from whatever source and applied by it to any of the Obligations,
Indebtedness, or Indemnities shall be applied in such order of applications as
Lessor shall from time to time, in its sole discretion, elect.
In the event of any default in regard to any Guarantor's obligations hereunder,
or in the event of death, incompetency, termination, dissolution or insolvency
of the Lessee, or if a receiver, liquidator or conservator be appointed for any
part of the property or assets of the Lessee, or if the Lessee makes an
assignment for the benefit of creditors, or if the Lessee shall file a voluntary
petition in bankruptcy or any involuntary petition in bankruptcy shall be filed
against it (whether or not any such event occurs at a time when any of the
Obligations or Indebtedness is otherwise due and payable, and whether or not any
such event gives rise to an enforceable legal right on the part of Lessor to
demand payment of or collect any sums from Lessee or to accelerate the maturity
of any sums to become due and payable thereafter), then, and in any such case,
each Guarantor agrees to pay to Lessor, upon demand, the full amount which would
be payable hereunder by such Guarantor if all the Obligations and Indebtedness
including, but not limited to, any remaining payments owing pursuant to the
Lease Agreement or any of the other guaranteed Agreements, were then due and
payable.
Notwithstanding any provisions hereof or any provision of any other instrument
or agreement, or any presumption of applicable law or principle of legal
construction to the contrary: (i) nothing shall discharge or satisfy and
Guarantor's obligations hereunder except full, complete and final payment and
satisfaction of all the Obligations, Indebtedness and Indemnities; (ii) each
Guarantor hereby waives any and all defenses to its obligations hereunder
including, without limitation, any defense arising by reason of any cessation of
the Lessee's business or any bankruptcy insolvency or business
Guarantor shall have any right of subrogation, and each Guarantor hereby waives
any and all rights of subrogation it may have, to enforce any right or remedy
which the Lessor has or may hereafter have against the Lessee, and waives the
benefits of, and any and all rights to participate in, any security or
securities now or hereafter held by Lessor.
Each Guarantor hereby represents and warrants to Lessor that all information
concerning such Guarantor, including (without limitation) financial statements
and other financial information, furnished to Lessor in connection with the
Lease Agreement or any of the other Guaranteed Agreements, was true, complete
and accurate as of the date of delivery thereof to Lessor, and that all such
information remains true, complete and accurate, and that there have been no
material adverse changes in such Guarantor's financial condition as of the date
hereof. In the event of any breach of any Guarantor's representations and
warranties herein or any material adverse change in the financial condition of
any Guarantor, upon the request of Lessor, such Guarantor shall promptly furnish
to Lessor such additional security for the performance of such Guarantor's
obligations hereunder as Lessor may reasonably request.
No notice of termination of this Guaranty shall be effective unless and until
such notice shall be in writing and executed by Guarantor and shall have been
received at Lessor's principal corporate headquarters at 00 X.X. 00xx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, XX 00000; provided, however, that in the event of such
notice, this Guaranty shall continue in full force and effect with regard to all
Obligations and Indebtedness created, existing or arising prior to the date of
such receipt. No modification hereof or amendment hereto and no waiver of any
term or provision hereof shall be valid unless in writing and signed by an
authorized officer of Lessor. No delay or failure on the part of Lessor in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by Lessor of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or remedy. No action
of Lessor permitted hereunder shall invalidate or in any way impair this
Guaranty. No waiver of any right or remedy hereunder shall constitute a waiver
of any other or further right or remedy hereunder.
Each Guarantor hereby consents and agrees that without any further notice to, or
assent by Guarantor, this guaranty may be assigned by Lessor and reassigned, in
the sole discretion of the Lessor or its assignee. As used herein, the term
"Lessor" includes the Lessor and any successor or assign of the Lessor. This
Guaranty shall be binding upon each Guarantor, and upon the legal successors,
representatives, and assigns of such Guarantor. Each and every waiver made
herein by any Guarantor is and shall be deemed to be and construed as an
absolute, irrevocable and unconditional waiver of the right waived.
This Guaranty is intended to be legal, valid, binding and enforceable in
accordance with its terms. Whenever possible, each term and provision of this
Guaranty shall be interpreted so as to be effective and to effectuate its intent
under applicable law. If any term or provision of this Guaranty shall be
unenforceable, invalid or prohibited in any jurisdiction under applicable law,
such term or provision shall be ineffective in such jurisdiction, but only to
the extend of such unenforceability, invalidity or prohibition, and the
remainder of such term or provision, and the other terms and provisions of the
Guaranty, shall not thereby be affected or impaired in such jurisdiction, nor
shall any of the terms or provision of the Guaranty be thereby affected or
impaired in any way in any other jurisdicticn.
This Guaranty is deemed made and delivered in the State whose laws govern the
Lease Agreement. Each Guarantor agrees that this Guaranty shall be governed by
the construed in accordance with the laws of such State, and that service of
process by certified mail, return receipt requested, will be sufficient to
confer personal jurisdiction over such Guarantor for purposes of litigating any
actions arising hereunder in the courts of such State.
This Guaranty is in addition to, and not in limitation or derogation of, any and
all other guaranties of the Obligations or Indebtedness executed by any
Guarantor. In the event of any conflict between the provisions of this Guaranty
and those of any such other guaranty, the provisions of this Guaranty shall
govern.
Each Guarantor hereby agrees and acknowledges that time is of the essence with
regard to the performance of such Guarantor's obligations hereunder. This
Guaranty shall take effect as a sealed instrument.
THE LIABILITY OF THE GUARANTORS HEREUNDER IS JOINT AND SEVERAL. THIS GUARANTY IS
JOINT AND SEVERAL AND WITH ANY AND ALL OTHER GUARANTEES OF ANY OF THE OBLIGATION
OR INDEBTEDNESS. ANY ONE GUARANTOR, OR ANY GROUP OR COMBINATION OF GUARANTORS
(IF MORE THAN ONE), MAY BE REQUIRED TO SATISFY ALL THE OBLIGATIONS AND
INDEBTEDNESS.
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
executed and delivered this 30th day of June, 1996.
*The liability of the guarantor hereunder is limited to $41,520.99.
Witness: XXXX XXXXXXX
/s/ R Slucker /s/ R Slucker
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Print Name: As an individual
Witness:
------------------------------ --------------------------------
Print Name: As an individual
PACKAGING MANAGEMENT ASSOCIATES, INC. GUARANTY [INDIVIDUAL]
Master Lease No. _______________________
In order to induce PACKAGING MANAGEMENT ASSOCIATES, INC. (hereinafter called
the ("Leseor") to enter into the Master Lease Agreement dated as of NOVEMBER
______________, 1995 (said Master Lease Agreement, together with any and all
schedules and riders thereto, being hereinafter called the Agreement") with, or
otherwise directly or indirectly making equipment available to TEAR DROP PUTTER
CORPORATION (hereinafter called the "Lessee"), and/or to induce Lessor to grant
to Lessee such renewals, extensions, forbearances, releases of collateral or
other relinquishments of rights, whether in connection with the Lease Agreement
or otherwise, as Lessor may in its sole discretion deem advisable, and in
consideration of say equipment lease agreements or other agreements heretofore
or hereafter entered into between Lessor and Lessee (any end all such equipment
lease agreements, including the Lease Agreement, entered into between Lessee and
Lessor together with any and all schedules and riders thereto and any and all
other instruments or agreements including, without limitation, security
agreements, pledge agreements end assignments, executed end delivered by Lessee
in connection therewith, being hereinafter collectively called the "Guaranteed
Agreements"), and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, EACH OF THE UNDERSIGNED (EACH OF
WHOM IS HEREINAFTER CALLED A "GUARANTOR"), INTENDING TO BE LEGALLY SOUND, HEREBY
JOINTLY AND SEVERALLY GUARANTEES THE FULL, PROMPT, COMPLETE AND FINAL PAYMENT
AND PERFORMANCE OF ALL THE LESSEE'S OBLIGATIONS PURSUANT TO THE LEASE AGREEMENT
OR ANY OF THE OTHER GUARANTEED AGREEMENTS OR IN ANY WAY ARISING THEREFROM AND
ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES OF LESSEE TO LESSOR, WHETHER NOW
IN EXISTENCE OR ARISING HEREAFTER, AND WHETHER DIRECT OR INDIRECT, CONTINGENT OR
ASSOLUTE, MATURED OR UNMATURED, SECURED OR UNSECURED, AND HOWEVER CONTRACTED OR
ARISING (ALL SUCH OBLIGATIONS AND LIABILITIES BEING HEREINAFTER CALLED THE
"OBLIGATIONS").
Each Guarantor hereby promises to pay Lessor when due, on demand, all
indebtedness of any kind or nature emanating from the Lease Agreement, any of
the other Guaranteed Agreements or the Obligations (including, without
limitation, if an event of default shall occur under the Lease Agreement or any
of the other Guaranteed Agreements, payment on demand of all unpaid sums to
become due under the defaulted Agreement for the entire term thereof), whether
now or hereafter arising and however and whenever evidenced (all such
indebtedness being hereinafter called the "Indebtedness"); and each Guarantor
agrees to indemnify and hold Lessor harmless from and against any and all
losses, liabilities and costs emanating from any failure of Lessee to fully,
promptly and completely satisfy the Obligations and pay the indebtedness (such
losses, liabilities and costs being referred to hereinafter as the
"Indemnities"). For purposes hereof, (i) "losses, liabilities and costs" shall
include (without limitation), all losses, liabilities, obligations, claims,
demands, Judgments, costs end expenses of whatever kind or nature (including,
without limitation, attorneys fees) and "emanating" from an event or cause shall
include (without limitation) in any way directly or indirectly being caused by
or in ANY other way arising out of such event or cause.
Each Guarantor hereby waives any notice of default or nonpayment or of late or
inadequate satisfaction in regard to the Obligations and the Indebtedness. In
particular (and not in limitation of the foregoing), each Guarantor hereby
agrees that in enforcing this Guaranty the Lessor shall not be required (i) to
demand payment of the amount due (known as "demand"; (ii) to present for payment
any evidence of any of the Indebtedness or the Obligations (known as
"presentment" or "presentment for payment"); (iii) to give notice that amounts
due have not been paid (known as "notice of dishonor"); or (iv) to obtain an
official certification of nonpayment (known as "protest") or to give any
Guarantor Notice of any such "protest"; and each Guarantor hereby waives demand,
presentment, presentment for payment, notice of dishonor, protest and notice of
protest, as aforesaid. Each Guarantor hereby further waives notice of
acceptance hereof and any and all other notices to which such Guarantor may be
entitled. Each Guarantor hereby consents and agrees that without any further
notice to, or assent by Guarantor, the liability of Lessee or any guarantor of
the Obligations or Indebtedness may from time to time, in whole or in part, be
extended, renewed, continued, amended, modified, composed, accelerated,
supplemented, compromised, settled or released in Lessor's sole discretion, and
that any collateral for any of the Obligations or Indebtedness or for any
guaranty thereof (including this Guaranty) may from time to time, in whole or
part, be exchanged, sold or surrendered in Lessor's sole discretion. Each
Guarantor hereby agrees that no such extension, renewal, continuation,
amendment, modification, composition, acceleration, supplement, compromise,
settlement, release, exchange, sale or surrender shall in any way impair, affect
or release the liability of any Guarantor hereunder or constitute a waiver of
any of Lessor's rights hereunder.
This Guaranty is unlimited, absolute, irrevocable and unconditional and shall
continue in full force and effect until all the Obligations, Indebtedness and
Indemnities shall have been fully, completely and finally satisfied and paid.
The obligations of each Guarantor hereunder shall continue and survive the
repossession of any equipment or other property leased pursuant to the Lease
Agreement or any of the other Guaranteed Agreements (or any property in which
the Lessor has a security interest securing any of the Obligations, Indebtedness
or Indemnities) whether or not any such repossession constitutes an "election of
remedies" against the Lessee or any other person. Each Guarantor agrees to be
obligated hereunder notwithstanding any termination of the Lease Agreement in
whole or part by operation of law or any unenforceabiltty or invalidity of the
Lease Agreement or any of the other Guaranteed Agreements for any reason
whatsoever (including without limitation, invalidity or voidness ab initio
and/or partial or complete unenforceability as a result of impossibility or
impracticability of performance or frustration of the purpose of the Lease
Agreement or any of the other Guaranteed Agreements). The obligations of the
Guarantors hereunder shall not be subject to any abatement, setoff, defense or
counterclaim for any cause whatsoever.
Each Guarantor hereby agrees that its obligations hereunder are direct and
primary and that the Lessor may proceed directly and in the first instance
against each or any Guarantor or combination of Guarantors and have its remedy
hereunder without first being obliged to resort to any other right or remedy or
security for any of the Obligations, Indebtedness or Indemnitiee; and each
Guarantor hereby waives any right to require the Lessor to proceed against the
Lessee or to proceed against any other Guarantor or to proceed against any other
guarantor of the Obligations or Indebtedness, or to proceed against any security
held from the Lessee or to pursue any other action in power whatsoever.
If there shall be any securities for any of the Obligation or Indebtedness, or
for the obligations of any Guarantor hereunder, or for the obligations of any
other guarantor of any of the Obligations or Indebtedness, the Lessor may
proceed against and/or enforce any or all of such securities in whatever order
in may, in its sole discretion, deem appropriate. Any amount(s) received by the
Lessor from whatever source and applied by it to any of the Obligations,
Indebtedness, or Indemnities shall be applied in such order of application as
Lessor shall from time to time, in its sole discretion, elect.
In the event of any default in regard to any guarantor's obligations hereunder,
or in the event of death, incompetency, termination, dissolution or insolvency
of the Lessee, or if a receiver, liquidator or conservator be appointed for any
part of the property or assets of the Lessee, or if the Lessee makes an
assignment for the benefit of creditors, or if the Lessee shall file a voluntary
petition in bankruptcy or any involuntary petition in bankruptcy shall be filed
against it (whether or not any such event occurs at a time when any of the
Obligations or Indebtedness is otherwise due and payable, and whether or not any
such event gives rise to an enforceable legal right on the part of Lessor to
demand payment of or collect any sums from Lessee or to accelerate the maturity
of any sums to become due and payable thereafter), then, and in any such case,
each Guarantor agrees to pay to Lessor, upon demand, the full amount which would
be payable hereunder by such Guarantor if all the Obligations and Indebtedness
including, but not limited to, any remaining payments owing pursuant to the
Lease Agreement or any of the other guaranteed Agreements, were then due and
payable.
Notwithstanding any provision hereof or any provision of any other instrument or
agreement, or any presumption of applicable law or principle of legal
construction to the contrary: (i) nothing shall discharge or satisfy any
Guarantor's obligations hereunder except full, complete and final payment and
satisfaction of all the Obligations, Indebtedness and Indemnities; (ii) each
Guarantor hereby waives any and all defenses to its obligations hereunder
including, without limitation, any defense
Guarantor shall have any right of subrogation, and each Guarantor hereby waives
any and all rights of subrogation it may have, to enforce any right or remedy
which the Lessor has or may hereafter have against the Lessee, and waives the
benefits of, and any and all rights to participate in, any security or
securities now or hereafter held by Lessor.
Each Guarantor hereby represents and warrants to Lessor that all information
concerning such Guarantor, including (without limitation) financial statements
and other financial information, furnished to Lessor in connection with the
Lease Agreement or any of the other Guaranteed Agreements, was true, complete
and accurate as of the date of delivery thereof to Lessor, and that all such
information remains true, complete and accurate, and that there have been no
material adverse changes in such Guarantor's financial condition as st the date
hereof. In the event of any breach of any Guarantor's representations and
warranties heroin or any material adverse change in the financial condition of
any Guarantor, upon the request of Lessor, such Guarantor shall promptly furnish
to Lessor such additional security for the performance of such Guarantor's
obligations hereunder xx Xxxxxx may reasonably request,
No notice of termination of this Guaranty shall be effective unless and until
such notice shall be in writing and executed by Guarantor and shall have been
received at Lessor's principal corporate headquarters at 00 X.X. 00xx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, XX 00000; provided, however, that in the event of such
notice, this Guaranty shall continue in full force and effect with regard to all
Obligations and Indebtedness created, existing or arising prior to the date of
such receipt. No modification hereof or amendment hereto and no waiver of any
term or provision hereof shall be valid unless in writing and signed by an
authorized officer of Lessor. No delay or failure on the part of Lessor in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by Lessor of any right or remedy shall preclude any other or
further exercise thereof or the exercise of any other right or remedy. No action
of Lessor permitted hereunder shall invalidate or in any way impair this
Guaranty. No waiver of any right or remedy hereunder shall constitute a waiver
of any other or further right or remedy hereunder.
Each Guarantor hereby consents and agrees that without any further notice to, or
assent by Guarantor, this guaranty may he assigned by Lessor and reassigned, in
the sole discretion of the Lessor or its assignee. As used herein, the term
"Lessor" includes the Lessor and any successor or assign of the Lessor. This
Guaranty shall be binding upon each Guarantor, and upon the legal successors,
representatives, and assigns of such Guarantor. Each and every waiver made
heroin by any Guarantor iS and shall be deemed to be and construed as an
absolute, irrevocable and unconditional waiver of the right waived.
This Guaranty is intended to be legal, valid, binding and enforceable in
accordance with its terms. Whenever possible, each term and provision of this
Guaranty shall be interpreted so as to be effective and to effectuate its intent
under applicable law. If any term or provision of this Guaranty shall he
unenforceable, invalid or prohibited in any Jurisdiction under applicable law,
such term or provision shall be ineffective in such Jurisdiction, but only to
the extend of such unenforceability, invalidity or prohibition, and the
remainder of such term or provision, and the other terms and provisions of the
Guaranty, shall not thereby be affected or impaired in such Jurisdiction, nor
shall any of the terms or provision of the Guaranty be thereby affected or
impaired in any way in any other Jurisdiction.
This Guaranty is deemed made and delivered in the State whose laws govern the
Lease Agreement. Each Gearantor agrees that this Guaranty shall be governed by
the construed in accordance with the laws of such State, and that service of
process by certified mail, return receipt requested, will be sufficiant to
confer personal Jurisdiction over such Gearenter for purposes of litigating any
actions arising hereunder in the courts of such State.
This Guaranty is in addition to, and not in limitation or derogation of, any and
all other guaranties of the Obligations or Indebtedness executed by any
Guarantor. In the event of any conflict between the provisions of this Guaranty
and those of any such other guaranty, the provisions of this Guaranty shall
govern.
Each Guarantor hereby agrees and acknowledges that time is of the essence with
regard to the performance of such Guarantor's obligations hereunder. This
Guaranty shall take effect as a sealed instrument.
THE LIABILITY OF THE GUARANTORS HEREUNDER IS JOINT AND SEVERAL. THIS GUARANTY IS
JOINT AND SEVERAL AND WITH ANY AND ALL OTHER GUARANTEES OE ANY OF THE OBLIGATION
OR INDEBTEDNESS. ANY ONE GUARANTOR, OR ANY GROUP OR COMBINATION OF GUARANTORS
{IF MORE THAN ONES, MAY BE REQUIRED TO SATISFY ALL THE OBLIGATIONS AND
INDEBTEDNESS.
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
executed and delivered this ________ DAY OF _____________________, 19____.
*The liability of the guarantor hereunder is limited to $32,570.00.
Witness XXXX XXXXXXX
/s/ Xxxxxxxx ???? /s/ Xxxx Xxxxxxx
----------------------------------- ---------------------------------------
Print Name: As an individual
Witness:
----------------------------------- ---------------------------------------
Print Name: As an individual
