PNC LEASING CORP PNCBANK
Master Lease Agreement Lease No. 1447
This Master Lease Agreement ("Lease") is made this 20th day of April, 1999, by
and between PNC LEASING CORP (the "Lessor"), a subsidiary of PNC Bank, National
Association (the "Bank"), with an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and THE JUDGE GROUP, INC. (the "Lessee") with its address at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, all the machinery, equipment a other personal property (individually an
"Item of Equipment" and collectively the "Equipment") described in Schedules of
Leased Equipment which are or may from time to time hereafter be executed by
Lessor and Lessee and attached hereto or incorporated herein by reference
("Schedules") upon the terms and conditions set forth in this Lease. When used
herein the term "Equipment" shall be deemed to refer to the Equipment described
in a specific Schedule, unless the context clearly indicates otherwise. The
invalidation, fulfillment, waiver, termination, or other disposition of any
rights or obligations of either the Lessee or Lessor, or both of them, arising
from the execution of this Lease in conjunction with any Schedule shall not
affect the status of the rights and/or obligations with either or both of the
parties arising from the execution of this Lease in conjunction with any other
Schedule, so long as the Lessee has not defaulted under the terms and conditions
of this Lease or any Schedule. In the event of any such default by Lessee,
Lessor may declare this Lease and any Schedule to be in default hereunder and
the Lessor may proceed with its remedies against the Lessee in accordance with
paragraph 24 herein, with respect to any particular Schedule or all Schedules.
An executed counterpart of this Lease (including any Schedules, supplements,
amendments, addenda or riders thereto) or a photocopy thereof, together with an
executed original of any numbered Schedule marked "Lessor", shall be the
original "lease" for the Equipment described in such Schedule and together they
shall constitute a separate and enforceable lease. All other executed
counterparts of such numbered Schedule shall be marked and considered a
"Duplicate". To the extent this Lease constitutes chattel paper, as that term is
defined in the Uniform Commercial Code as adopted and in effect in the
Commonwealth of Pennsylvania ("UCC"), no security interest in the Lease may be
created through the transfer of possession of any counterpart other than the
Lessor copy of the numbered Schedule.
2. TERM. The obligations of the parties under this Lease commence upon the
written acceptance hereof by Lessor and shall end upon full performance and
observance of each and every term, condition and covenant set forth in this
Lease and any extensions hereof. The rental term for Equipment listed in each
Schedule shall commence on the date indicated on such Schedule and shall
terminate on the last day of the term stated in such Schedule. Any interim
rental term shall also be set forth in any such Schedule as
appropriate.
3. RENT. The rent, including interim rental payments, for the Equipment
described in each Schedule shall be the amount stated in such Schedule. Rent is
an absolute obligation of Lessee due upon the inception of each base or interim
rental term and payable as specified in each applicable Schedule irrespective of
any claims, demands, set-offs, actions, suits or proceedings that Lessee may
have or assert against Lessor or any vendor of Equipment. Rent and interim rent
shall be payable to Lessor at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
or at such other place as Lessor or its assigns may designate in writing to
Lessee from time to time.
4. DELINQUENT RENT PENALTY. If any rent or interim rent installment or other
amount due hereunder is not paid when due, Lessee agrees to pay a delinquent
rent penalty of five percent (5%) on, and in addition to, the amount of such
rent or other amount due hereunder, but not exceeding the lawful maximum, if
any. Such delinquent interest shall be payable upon demand. Interest shall
accrue at said rate whether or not judgment hereon has been entered.
5. ADVANCES. From time to time prior to the commencement date of the base lease
term, and subject to the conditions of this paragraph 5, Lessor shall, upon
request by Lessee, make such advances, deposits and reimbursements as may be
required for payment for, and purchase of, the Equipment. Lessee shall provide
written confirmation to Lessor, as Lessor may request, approving payments as
called for, as well as confirming the receipt of the Equipment by Lessee as it
is delivered to Lessee. Each request for an advance shall constitute, as of the
date made, a certification by Lessee that Lessee shall have performed and
complied with all agreements and conditions required under this Lease, and at
the time of such advance, no condition or event exists which constitutes an
Event of Default hereunder. Notwithstanding the foregoing, under no
circumstances whatsoever shall Lessor be required or obligated to guarantee
payment to any vendor or supplier.
All advances made by Lessor shall bear interest from the date of
funding until the commencement of the base term of the lease in accordance with
the respective Schedule and Supplement thereto.
Before Lessor shall make any advance hereunder, Lessee agrees to sign
and deliver to Lessor such instruments and documents as Lessor may reasonably
request, including, but not limited to, certified resolutions, incumbency
certificates or other evidence of authority and opinions of counsel in form and
substance reasonably satisfactory to Lessor.
Lessee acknowledges and agrees that in no event will Lessor be under
any obligation to advance funds (i) in an amount higher than that set forth in
any ancillary document hereto, (ii) beyond the date set forth in any ancillary
documents hereto, (iii) if the Equipment is not as represented to Lessor,
including but not limited to, of a make, model and condition as expected, and in
accordance with specifications presented to Lessor by Lessee, (iv) upon the
occurrence of an Event of Default under this Lease, (v) in the event of the
commencement of any foreclosure or forfeiture proceeding, execution or
attachment against any Equipment lease hereunder, (vi) in the event of any
material adverse change in the business, assets, operations, financial condition
or results of operations of Lessee or any Guarantor hereunder, (vii) in the
event that any representation or warranty made by the Lessee or any Guarantor to
Lessor is false, erroneous or misleading in any material respect. Upon the
occurrence of an Event of Default, all advances made together with accrued
interest and other amounts due thereon shall be immediately due and payable
without demand or notice of any kind. The making of any advance by Lessor under
this paragraph 5 shall not constitute a commitment to make any other advance
prior to the commencement date of the base lease term, nor a waiver of any
condition precedent to the making of further advances at the commencement of the
base lease term.
6. DELIVERY AND INSTALLATION. Lessee will select the type, quantity and supplier
of the Equipment, and in reliance thereon, the Equipment will then be ordered by
Lessor from such supplier, or Lessor may at its option elect to accept from
Lessee an assignment of any existing purchase order. Lessor shall not be liable
for loss or damage occasioned by any cause, circumstance or event of whatsoever
nature, including, but not limited to, failure of or delay in delivery, delivery
to wrong location, delivery of improper equipment or property other than the
Equipment, defects in or damage to the Equipment, governmental regulations,
strikes embargoes or other causes, circumstances or events whether of a like or
unlike nature. In the event that the cost of any Item of Equipment differs from
the price set forth in the purchase order therefor, the periodic rental shall be
changed accordingly to fully reflect any such difference.
7. WARRANTY OF LESSEE'S QUIET POSSESSION. Lessor warrants and covenants that so
long as Lessee faithfully performs this Lease, Lessee, subject to the disclaimer
of warranties set forth immediately below, may quietly possess and use the
Equipment without interference by the Lessor, or by any party claiming by or
through the Lessor.
8. DISCLAIMER OF WARRANTIES. THE LESSEE ACKNOWLEDGES AND AGREES THAT (i) THE
EQUIPMENT AND EACH PART THEREOF IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE
SELECTED BY AND ACCEPTABLE THE LESSEE, (ii) THE LESSEE IS SATISFIED THAT THE
EQUIPMENT AND EACH PART THEREOF IS SUITABLE FOR ITS RESPECTIVE PURPOSE, (iii)
THE LESSOR IS NOT A MERCHANT, MANUFACTURER OR A DEALER IN PROPERTY OF SUCH KIND,
(iv) THE EQUIPMENT AND EACH PART THEREOF IS LEASED HEREUNDER SUBJECT TO ALL
APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS NOW IN EFFECT OR HEREAFTER ADOPTED
AND IN THE STATE AND CONDITION WHEN THE SAME FIRST BECAME SUBJECT TO THIS LEASE,
WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND BY THE LESSOR, AND (v) THE LESSOR
LEASES THE EQUIPMENT, AS IS, WITHOUT WARRANTY OR REPRESENTATION EITHER EXPRESS
OR IMPLIED, AS TO (A) THE CONDITION, FITNESS, DESIGN, QUALITY, CAPACITY,
WORKMANSHIP, OPERATION, AND MERCHANTABILITY OF THE EQUIPMENT, (B) THE LESSOR'S
TITLE THERETO, OR (C) THE ABILITY OF ANY EQUIPMENT WHICH CONTAINS OR MAY BE
AFFECTED BY COMPUTER APPLICATIONS OR MICROPROCESSOR CHIPS TO RECOGNIZE AND
PROPERLY PERFORM DATESENSITIVE FUNCTIONS INVOLVING DATES PRIOR TO AND AFTER
DECEMBER 31, 1999, I.E., "YEAR 2000 COMPLIANT," OR (D) ANY OTHER MATTER
WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISK, AS AMONG THE LESSOR AND THE
LESSEE, ARE TO BE BORNE BY THE LESSEE, AND THE BENEFITS OF ANY AND ALL IMPLIED
WARRANTIES AND REPRESENTATIONS OF LESSOR ARE HEREBY WAIVED BY LESSEE. Lessor is
not responsible or liable for any direct, indirect, incidental, or consequential
damage to, or loss resulting from, the installation, operation, or use of the
Equipment or any product manufactured thereby. The Lessee's recourse for breach
of any representation or warranty of the vendor supplier is limited to such
vendor or supplier. Lessee will be subrogated to Lessor's claims, if any,
against the manufacturer or supplier of the Equipment for breach of any warranty
or representation and, upon written request from Lessee, Lessor shall take all
reasonable action requested by Lessee to enforce any such warranty, express or
implied, issued on or applicable to any of the Equipment, which is enforceable
by Lessor in its own name, provided, however, that (a) Lessee is not in default
under this Lease and (b) Lessor shall not be obligated to resort to litigation
to enforce any such warranty unless Lessee shall pay all expenses in connection
therewith. Notwithstanding the foregoing, Lessee's obligations to pay the
rentals or otherwise under this Lease shall be and are absolute and
unconditional. All proceeds of any such warranty recovery from the manufacturer
or supplier of the Equipment shall first be used to repair the affected
Equipment.
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9. NATURE OF EQUIPMENT. The Equipment shall remain personal property,
notwithstanding the manner in which it may be affixed to any real property.
Lessee shall obtain and cause to be recorded, where appropriate, at its own
expense, from each landlord, owner, mortgagee or any person having an
encumbrance or lien upon the real property where the Equipment is located, a
waiver of any lien, encumbrance or interest which such person might have or
hereafter obtain or claim with respect to the Equipment. Lessee, at its expense,
will protect and defend Lessor's title to the Equipment and will otherwise take
all action required to keep the Equipment free and clear of all claims, levies,
liens and encumbrances. Lessor assumes no liability and makes no representation
as to the treatment by Lessee of this Lease, the Equipment, or the rental
payments for financial accounting or tax purposes.
10. LESSOR'S RIGHT OF INSPECTION. Lessor, or its authorized agents, shall have
the right during normal business hours enter upon the premises where the
Equipment is located (to the extent Lessee can permit) for the purpose of
inspection. Provide No Event of Default has occurred and is continuing, Lessor
shall provide Lessee prior notice of such inspection.
11. USE OF EQUIPMENT. Lessee represents that it is leasing the Equipment for a
business or commercial purpose and not for personal, family or household use.
Lessee must use the Equipment in a careful and proper manner in conformity with
(i) all statutes and regulations of each governmental authority having
jurisdiction over the Lessee and/or the Equipment and its use, and (ii) all
policies of insurance relating to the Equipment and/or its use. In addition,
Lessee shall not (i) use the Equipment in any manner that would impair the
applicability of manufacturer's warranties or render the Equipment unfit for its
originally intended use; nor (ii) permit anyone other than authorized and
competent personnel to operate the Equipment.
12. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall make
no alterations, modifications or attachments to the Equipment which impair the
economic value, economic and useful life, or functional utility of the
Equipment. All alterations, modifications and attachments of whatsoever kind or
nature made to the Equipment must be removed without damaging the functional
capabilities or economic value of the affected Equipment upon the termination of
the Lease. Under no circumstances shall any such alteration, modification or
attachment be encumbered by Lessee or result in the creation of a mechanic's or
materialman's lien, excepting as may arise by operation of law pending payment
within ordinary business terms.
13. MAINTENANCE AND REPAIRS. At its expense Lessee shall maintain, operate,
repair and make all modifications to the Equipment in a manner consistent with
Lessee's general practice and in accordance with good industry practice,
manufacturer's warranty requirements and specifications and Lessee's established
operation, maintenance and repair programs, without discrimination as to leased
equipment, so as to keep the Equipment in good working order, and so as to
comply with all applicable laws or applied governmental actions and so as not to
incur liability (whether or not there is a lack of compliance) under any
environmental law or otherwise account for any release of, or exposure to, any
hazardous material. Lessor shall not be required to maintain, repair or replace
the Equipment or part thereto and Lessee hereby waives the right, however
arising, to (i) require Lessor to maintain, repair or replace any of the
Equipment or part thereto, or (ii) make repairs at the expense of the Lessor
pursuant to any applicable law at any time in effect. Lessor may review Lessee's
established operating procedures and maintenance records to assure compliance
with this section. Upon installation, title to replacement parts shall pass to
Lessor, and be deemed part of the Equipment.
14. RISK OF LOSS, DAMAGE AND THEFT.
(a) All risk of loss, damage, theft or destruction, partial or
complete, to the Equipment incurred or occasioned by any cause, circumstance or
event of whatever nature will be borne by Lessee from and after delivery of the
Equipment to a carrier FOB point of origin, whether the terms of shipment
require or authorize the Equipment to be shipped by carrier, to be delivered to
Lessee's place or places of business, or provide that Lessee accept possession
of or title to the Equipment at any other location. Lessee shall promptly notify
Lessor of any theft of or loss or damage to the Equipment.
(b) Neither total nor partial loss of use or possession of the
Equipment shall ▇▇▇▇▇ the rent.
(c) The Equipment shall be deemed subjected to total loss (i) if it has
disappeared regardless of the reason for disappearance or (ii) if it has
sustained physical damage and the estimated cost of repair exceeds 75% of its
fair market value on the date of damage Lessee's duty to pay rent for the
Equipment subjected to total loss shall be discharged by paying to Lessor, on
demand, all accrued but unpaid rent for such Equipment as of the date of
disappearance or damage, plus the greater of: (i) Lessor's book value of the
Equipment, which shall be deemed to be the Equipment's cost as set forth in the
applicable Schedule minus straight-line depreciation based on recognized
physical life prorated to the date of disappearance or damage, or (ii) the fair
market value of the Equipment as of the date of disappearance or damage. The
amount of applicable insurance proceeds, if any, actually received by Lessor
shall be subtracted from the amount for which Lessee is liable under this
paragraph 14.
(d) Lessee shall cause the Equipment subjected to partial loss to be
restored to original capability. Lessor shall, upon receiving satisfactory
evidence of restoration, promptly pay to Lessee, or such other party as Lessee
shall direct, the proceeds of any insurance or compensation received by Lessor,
by reason of such partial loss.
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(e) Lessor shall not be obligated to undertake the collection of any
claim against any person for either total or partial loss the Equipment. After
Lessee discharges its obligations to Lessor under either paragraph 14(c) or
14(d) above, Lessee may, for Lessee's own account, proceed to recover from third
parties and shall be entitled to retain any amount recovered. Lessor shall
supply Lessee with any necessary assignment of claim.
15. INDEMNIFICATION.
(a) Non-Tax Liability. Lessee assumes liability for, and hereby agrees
to indemnify, protect and hold harmless, Lessor, its agents, servants,
employees, officers, successors and assigns (an "Indemnified Party") from and
against any and all liabilities, obligations. losses, damages, injuries, claims,
demands, penalties, actions, environmental hazards, incidence or risks, costs
and expenses, including reasonable attorney's fees, of whatsoever kind and
nature, arising out of (i) the manufacture, installation, use, condition
(including, but not limited to, latent and other defects and whether or not
discoverable by Lessee or Lessor), operation, ownership, selection, delivery,
leasing, removal or return of the Equipment, regardless of where, how and by
whom operated, or (ii) any failure on the part of Lessee to perform or comply
with any covenant or condition of this Lease.
(b) Direct Tax Costs. Lessee agrees to indemnify, protect, and hold
harmless each Indemnified Party, from and against any and all taxes, license
fees, assessments and other governmental charges, fees, fines or penalties of
whatsoever kind or character and by whomsoever payable, which are levied,
assessed, imposed or incurred during the lease term, (i) on or relating to the
Equipment, including any tax on the sale, ownership, use, leasing, shipment,
transportation, delivery or operation thereof, (ii) on the exercise of any
option, election or performance of any obligation by the Lessee hereunder, (iii)
of the kind generally referred to in items (i) and (ii) above which may remain
unpaid as of the date of delivery of the Equipment to the Lessee irrespective of
when the same may been levied, assessed, imposed or incurred, and (iv) by reason
of all gross receipts and like taxes on or measured by rents payable hereunder
levied by any state or local taxing authority having jurisdiction where the
Equipment is located. The Lessee agrees to comply with all state and local laws
requiring the filing of ad valorem tax returns relating to the Equipment. Any
statements for such taxes received by the Lessor shall be promptly forwarded to
the Lessee. This subparagraph shall not be deemed to obligate the Lessee to pay
(i) any taxes, fees, assessments and charges which may have been included in the
Lessor's cost of the Equipment as set forth in Schedule(s) hereto, or (ii) any
income or like taxes against the Lessor on or measured by the net income from
the rents payable hereunder. The Lessee shall not be obligated to pay any amount
under this subparagraph so long as it shall, at its expense and in good faith
and by appropriate proceedings, contest the validity or the amount thereof
unless such contest would adversely affect the title of the Lessor to the
Equipment or would subject the Equipment to forfeiture or sale. The Lessee
agrees to indemnify each Indemnified Party against any loss, claim, demand and
expense including legal expense resulting from such nonpayment or contest.
(c) Indemnity Payment. The amount payable pursuant to subparagraphs
15(a) and 15(b) shall be payable upon demand of the Lessor accompanied by a
statement describing in reasonable detail such loss, liability, injury, claim,
expense or tax and setting forth the computation of the amount so payable.
(d) Survival. The indemnities and assumptions of liabilities and
obligations provided for in this paragraph 15 shall continue in full force and
effect notwithstanding the expiration or other termination of this Lease.
16. LESSEE'S ASSIGNMENT. Without the prior written consent of the Lessor, Lessee
shall not assign, bail, sublease, hypothecate, transfer or dispose of the
Equipment or any interest in this Lease nor impair the Lessor's title to the
Equipment. Lessee shall not assign this Lease, nor shall this Lease or any
rights under this Lease or in the Equipment inure to the benefit of any trustee
in bankruptcy, receiver, creditor, or other successor of Lessee whether by
operation of law or otherwise.
17. LESSOR'S ASSIGNMENT. All rights of Lessor hereunder, in the rent and in the
Equipment may be assigned, pledged, mortgaged. transferred, or otherwise
disposed of, either in whole or in part, without notice to Lessee. No such
assignee shall be obligated to perform any duty, covenant, or condition required
to be performed by Lessor under the terms of this Lease unless such assignee
expressly assumes such obligations. Lessor shall remain liable to Lessee
hereunder to perform such duty, covenant, and condition unless such assignee
expressly assumes Lessor's obligations, in which event Lessee hereby releases
Lessor from such obligations. Such assignee shall have all rights, powers and
remedies given to Lessor by this Lease, and shall be named as lender loss payee
or co-insured under all policies of insurance maintained pursuant to paragraph
18 hereof. If Lessor assigns this Lease or the monies due or to become due
hereunder or any other interest herein, Lessee agrees not to assert against
Lessor's assignee any defense, set-off, recoupment, claim or counterclaim which
Lessee may have against Lessor, whether arising under this Lease or any other
transaction between Lessor and Lessee. Subject to paragraph 16 hereof and this
paragraph 17, this Lease inures to the benefit of, and is binding upon, the
heirs, legatees, personal representatives, successors and assigns of the parties
hereto.
18. INSURANCE. Lessee will at its own expense insure the Equipment in compliance
with the terms and conditions of the Schedule. in form and in an amount
satisfactory to Lessor with insurance carriers approved by Lessor. The proceeds
of any insurance claim due to the theft or loss of or damage to the Equipment
shall be applied as provided in paragraph 14 hereof. In addition to the
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compliance with the terms and conditions of the Schedule and the other terms and
conditions of this paragraph 18, the Lessee shall comply with the following
conditions:
(a) Lessee, prior to the inception of the term, shall deliver to
Lessor all required policies of insurance or, in the alternative, other proper
evidence of insurance, which shall be sufficiently detailed to advise Lessor of
all types of coverage and inclusions;
(b) Lessee shall cause each insurer to agree by endorsement to the
policies that each insurer will give at minimum thirty (30) days' written notice
to Lessor before any policy will be altered or cancelled for any reason,
including, without limitation, failure of the Lessee to pay premiums;
(c) All coverage must be in effect upon delivery, or when Lessee
assumes the risk of loss, whichever is earlier, and will provide coverage
without geographic limitation;
(d) All policies must provide that the Lessor is an additional insured
for all aspects of general liability insurance, and is lender loss payee for all
aspects of insurance relating to the theft or loss of or damage to the
Equipment;
(e) Lessee will furnish renewal policies or renewal evidence of
insurance listing Lessor as an additional insured and lender loss payee, as
required by this Lease, no later than thirty (30) days prior to the expiration
of any insurance required hereby.
19. ADDITIONAL DOCUMENTS. If Lessor shall so request, Lessee shall execute and
deliver to Lessor such documents, including UCC financing and continuation
statements, as Lessor shall deem necessary or desirable for purposes of
continuing this Lease or recording or filing to protect the interest of Lessor
in the Equipment. Any such filing or recording shall not be deemed evidence of
any intent to create a security interest. All filing fees and expenses shall be
borne by the Lessee.
20. FURNISHING FINANCIAL INFORMATION. During the term of this Lease and any
extensions or renewals hereof, Lessee will furnish to Lessor:
(a) Within 30 days after the end of each of the first three quarterly
periods of Lessee's fiscal year, a balance sheet, statement of cash flows and a
statement of income of Lessee as of the close of such quarterly period from the
beginning of the fiscal year to the date of such statement, prepared in
accordance with generally accepted accounting principles, consistently applied,
and in such reasonable detail as Lessor may request, certified as true, complete
and correct by an authorized officer of the Lessee.
(b) As soon as practicable, but in any event within 90 days after the
end of each fiscal year, a copy of its annual audit certified without
qualification by a certified public accountant selected by Lessee and
satisfactory to Lessor.
(c) In a timely manner such financial statements, reports and other
information as the Lessee shall send from time to time to its stockholders
and/or file with the Securities and Exchange Commission and/or other materials
which Lessor shall reasonably request.
21. INCORPORATION OF COVENANTS BY REFERENCE. Any and all affirmative, negative
and financial covenants which may be set forth in any credit agreement, loan
agreement, promissory note, guaranty or other agreement, instrument or document
entered into between Lessee (or any of its affiliates) as borrower and any
affiliate of Lessor, as tender (whether directly as a lender to the Lessee or as
one lender in a bank syndicate agreeing to lend to the Lessee, or as holder of a
participation in a loan by another lender to the Lessee) (the "Loan Documents"),
are hereby incorporated herein by this reference as if set forth herein at
length, as any of the foregoing may be amended or supplemented from time to time
(the "Incorporated Provisions"). Any amendments, modifications, waivers or other
changes in the terms of any of the Incorporated Provisions shall automatically
constitute an amendment to this Lease without any need for further action or
documentation. If any Loan Document terminates or otherwise ceases to be in full
force and effect (a "Termination"), all of the Incorporated Provisions of such
Loan Document shall survive the Termination and shall continue in full force and
effect as a part of this Lease. At any time after a Termination, Lessee shall
promptly upon Lessor's request execute and deliver to Lessor an amendment to
this Lease, which amendment will expressly incorporate into this Lease all or
any number of the Incorporated Provisions of the terminated Loan Document as
Lessor in its sole discretion shall select, as such Incorporated Provisions are
in effect immediately prior to the date of Termination.
22. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. If Lessee fails to promptly
perform any of its obligations under this Lease, Lessor may perform the same for
the account of Lessee without waiving Lessee's failure as a default. All sums
paid or expense or liability incurred by Lessor in such performance (including
reasonable legal fees) together with interest thereon at the highest contract
rate enforceable against Lessee, but never at a higher rate than fifteen percent
(15%) per annum simple interest, shall be payable by the Lessee upon demand as
additional rent.
23. EVENTS OF DEFAULT. Any of the following events or conditions shall
constitute an event of default ("Event of Default") hereunder and entitle the
Lessor, at its option, to avail itself of the remedies more fully set forth in
paragraph 24 hereof:
(a) Non-payment by Lessee of any rent or other amount provided for in
this Lease;
(b) Failure of the Lessee to perform any of the non-monetary
covenants, obligations, terms or conditions of this Lease;
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(c) Death or judicial declaration of incompetency of Lessee, if an
individual, or death or judicial declaration of incompetency of an individual
partner, if Lessee is a partnership;
(d) The Lessee shall commence a voluntary case or other proceeding
seeking liquidation. reorganization, or other relief with respect to itself or
its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect, or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of or
the taking possession by any official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of its
creditors, or shall fail to pay its debts as they become due, or shall take any
corporate action authorizing any of the foregoing;
(e) An involuntary case or other proceeding should be commenced
against Lessee seeking liquidation, reorganization, or other relief with respect
to it or its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of thirty (30) days;
(f) A final judgment for the payment of money in excess of $25,000 is
rendered against the Lessee, or any attachment proceedings is instituted with
respect to any significant portion of the Lessee's assets or property, and the
same shall remain undischarged for a period of thirty (30) days during which
execution shall not be effectively stayed:
(g) The Lessee, or any guarantor of the Lease, or any affiliate of the
Lessee, shall default in the payment of principal and/or interest when due
(whether by acceleration or otherwise) or shall default in the performance of
any obligation or indebtedness owed to the Bank or to any subsidiary or
affiliate of the Bank (whether directly as a tender to the Lessee or as one
lender in a bank syndicate agreeing to lend to the Lessee, or as holder of a
participation in a loan by another lender to the Lessee), which obligation shall
remain in default for lack of performance or which indebtedness shall remain
unpaid and unsatisfied following the conclusion of any applicable grace period
in respect to such obligation or indebtedness;
(h) Any event described in subparagraphs 23(c) through 23(g) hereof
shall occur with respect to any guarantor or any other party liable for payment
or performance of this Lease;
(i) Any certificate, statement, representation, warranty or financial
statement heretofore or hereafter furnished pursuant to or in connection with
this Lease by or on behalf of Lessee or any guarantor or other party liable for
payment or performance of this Lease is false in any material respect at the
time as of which the facts therein set forth were stated or certified, or omits
any substantial contingent or unliquidated liability or claim against Lessee or
any such guarantor or other party, or, upon the date of execution of this
document or any Schedule, there shall have been any materially adverse change in
any of the facts disclosed by any such certificate, statement, representation or
warranty, which shall not have been disclosed in writing to Lessor at or prior
to the time of execution this document or such Schedule;
(j) An event of default shall have occurred under any other lease
agreement wherein Lessor is, at the time of such default, the "lessor" and
Lessee is the "lessee".
24. REMEDIES. Upon the happening of any Event of Default hereunder, the rights
and duties of the parties shall be as set forth this paragraph. Lessor may
elect, in its sole discretion, to do one or more of the following upon the
occurrence of an Event of Default, and at any time thereafter:
(a) Upon written notice to the Lessee terminate this Lease as to any
or all of the Schedules then in effect;
(b) Demand that Lessee return the Equipment to the Lessor whereupon
Lessee shall promptly deliver the Equipment to Lessor at that place or those
places designated by Lessor. If Lessee does not so deliver the Equipment, Lessee
shall make the Equipment available for retaking and authorizes Lessor, its
employees and agents to enter the premises of the Lessee and any other premises
(insofar as Lessee can permit) for the purpose of retaking. In the event of
retaking, Lessee expressly waives all rights to possession and all claims for
injuries to persons or property suffered through or loss caused by retaking. Any
repossession accomplished under this paragraph 24(b) shall not release Lessee
from liability for damages of Lessor sustained by reason of Lessee's default
hereunder.
(c) Lessor may revoke Lessee's privilege of paying rent in
installments causing acceleration of all remaining rents through the remaining
term of the Lease, and, upon Lessor's demand, as liquidated damages, and not as
a penalty, the Lessee shall promptly pay to the Lessor the aggregate of (i) all
rent accrued and unpaid prior to the date of such Event of Default, (ii) all
future rent due through the end of the basic term or through the end of the
current renewal term, as the case may be, (iii) all costs and expenses incurred
by Lessor in the repossession, recovery, storage, repair, inspection, appraisal,
refurbishing, sale, release or other disposition of the Equipment, (iv)
reasonable attorney's fees and costs, including any fees or costs incurred by
Lessor in defending any action relating to this Lease or participating in any
bankruptcy or insolvency proceeding to which Lessee is a party, or otherwise
incurred due to Lessee's default, (v) the estimated residual value of the
Equipment as of the end of the current term of the Lease, and (vi) any claim for
indemnity, if any, in favor of Lessor hereunder. In the event that any court
having jurisdiction shall determine that in calculating damages hereunder as a
result of a default by Lessee that sums payable in the future under the Lease
must be discounted to present value, the discount rate to be applied in such
case shall equal the discount rate of the Federal Reserve Bank of Cleveland then
in effect on the earlier of the date of entry of judgement on such claim or the
date of payment of such sum by Lessee.
6
(d) In its sole discretion, Lessor may sell or release the Equipment
or and part thereof, at public auction or by private sale or lease at such time
or times and upon such terms as Lessor may determine, free and clear of any
rights of Lessee and, if notice thereof is required by law, any notice in
writing of such sale or lease by Lessor to Lessee given not less than ten (10)
days prior to the date thereof shall constitute reasonable notice thereof to
Lessee. All proceeds of the sale or releasing, or both, less (i) all expenses
incurred in retaking the Equipment, making, necessary repairs to the Equipment
and enforcing this Lease, (ii) all damages that Lessor shall have sustained by
reason of Lessee's default, and (iii) reasonable attorney's fees and expenses
shall be credited against Lessee's liability hereunder as and when received by
Lessor. Sums in excess of Lessee's liability shall belong to Lessor. The Lessee
shall be liable for any deficiency.
(e) The provisions of this paragraph 24 shall not prejudice Lessor's
right to recover or prove damages for unpaid rent accrued prior to default, or
bar an action for a deficiency as herein provided, and the bringing of an action
with an entry of judgment against Lessee shall not bar the Lessor's right to
repossess any or all of the Equipment.
(f) Lessor's remedies shall be available to Lessor's successors and
assigns, shall be in addition to all other remedies provide to it under the UCC
(specifically, the remedies set forth in 13 Pa. C.S.ss.ss.2A523(a), (b) and (c)
or by any other applicable law, and may be exercised concurrently or
consecutively. LESSEE WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO JUDICIAL
HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY LESSOR IN THE EVENT
OF A DEFAULT HEREUNDER BY LESSEE. LESSEE HEREBY WAIVES ANY RIGHT TO DEMAND A
JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY THE LESSOR OR
THE LESSEE IN CONNECTION WITH THIS LEASE.
(g) No express or implied waiver by Lessor of any default(s) by Lessee
shall constitute a waiver of any other default(s) by Lessee or waiver of any of
Lessor's rights.
(h) The Lessee has reviewed the areas within its business and
operations which could be adversely affected by, and has developed or is
developing a program to address on a timely basis the risk that certain computer
applications used by the Lessee may be unable to recognize and perform properly
date-sensitive functions involving dates prior to and after December 31, 1999
(the "Year 2000 Problem"). The Year 2000 Problem will not result, and is not
reasonably expected to result, in any material adverse effect on the business,
properties, assets, financial condition, results of operations or prospects of
the Lessee, or the ability of the Lessee to duly and punctually pay or perform
its obligations hereunder and under the other Lease Documents.
25. LESSEE REPRESENTATIONS AND WARRANTIES. In order to induce Lessor to enter
into this Lease and to lease the Equipment to Lessee, Lessee represents and
warrants, as of the date hereof, and as of the date of execution of each
Schedule hereunder, that:
(a) The Lessee is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
with corporate power and authority to conduct its business as such business is
presently being conducted, to own or hold property under lease and to enter into
and perform its obligations under this Lease. The Lessee is duly qualified to do
business and is in good standing as a foreign corporation in all states where
its failure to so qualify would have a material adverse effect on its ability to
perform its obligations under this Lease.
(b) The execution, delivery, and performance by the Lessee of this
Lease and all related instruments and the consummation by the Lessee of the
transactions contemplated hereby: (i) have been duly authorized by all necessary
corporate action on the part of the Lessee, (ii) do not require any stockholder
approval or the consent of any trustee or holder of any indebtedness or
obligation of the Lessee (or, if so required, such approval or consent has been
obtained), (iii) do not and will not result in any material violation of any
term of any agreement, instrument, judgment, decree, franchise, permit, order,
law, statute, rule, or governmental regulation presently applicable to it, (iv)
is not in conflict with and does not constitute a default under any of the terms
or provisions of, or subject the leased Equipment or any part thereof to any
lien of, any indenture, mortgage, lease, contract, or other agreement or
instrument (other than this Lease) to which the Lessee is a party or by which it
or its property is bound or affected, and (v) does not and will not contravene
Lessee's articles of incorporation and by-laws.
(c) The execution, delivery, and performance by the Lessee of this
Lease and all related instruments and documents does not require any consent,
authorization, or approval of, any filing of or registration with, or other
action in respect to any federal, state, governmental authority or agency, or,
if so required, the same have been obtained.
(d) This Lease and all related instruments and documents have been
duly executed and delivered by the Lessee, and assuming the due authorization,
execution, and delivery by the other party thereto, constitute legal, valid, and
binding agreements the Lessee enforceable against the Lessee in accordance with
their terms.
(e) There are no pending actions or proceedings to which Lessee is a
party, and there are no other pending or threatened actions or proceedings of
which Lessee has knowledge, before any court, arbitrator, or administrative
agency, which either individually or in the aggregate, would materially
adversely affect the financial condition of Lessee, or the ability of Lessee to
perform its obligation hereunder. Further, Lessee is not in default under any
material obligations for the payment of borrowed money, for the deferred
purchase price of property or for the payment of any rent which, either
individually or in the aggregate, would have the same such effect.
7
(f) Under the laws of the state(s) in which the Equipment is to be
located, the Equipment consists solely of personal property.
(g) The financial statements of Lessee (copies of which have been
furnished to Lessor) have been prepared in accordance with generally accepted
accounting principles consistently applied, and accurately and completely
present Lessee's financial condition and the results of its operations as of the
date of and for the period covered by such statements, and since the date of
such statements there has been no material adverse change in such conditions or
operations.
(h) The address stated on page one of this Lease is the chief place of
business and chief executive office of Lessee; and the Lessee does not conduct
business under a trade, assumed, or fictitious name.
26. FINANCE LEASE.
(a) Acknowledgment. The Lease is intended as a "Finance Lease" as that
term is defined in Section 2A103 of the UCC. Lessee acknowledges that Lessor
has not selected, manufactured or supplied the Equipment; that Lessor has
acquired the Equipment at the direction of the Lessee and solely for the purpose
of leasing the Equipment to the Lessee; and that (i) Lessee has selected the
supplier or vendor of the Equipment, (ii) as provided in paragraph 8, Lessee is
entitled to directly enforce against the supplier or vendor of the Equipment,
any and all warranties and promises made to the Lessor by the supplier or
vendor, and (iii) Lessee may communicate directly with the vendor or supplier to
obtain a complete and accurate statement of all such warranties or promises,
including any disclaimers or limitations thereof.
(b) Waiver of Certain of Lessee's Remedies. In recognition that this
is a Finance Lease and that the Lessor has not sold, selected or delivered the
Equipment to the Lessee and has made no warranties or representations in respect
thereto, to the extent permitted by applicable law, Lessee, for itself and for
its successors and assigns, hereby waives any and all rights or remedies
afforded a lessee by Sections 2A503 through 2A522 inclusive, of the UCC,
including, without limitation, Lessee's right to (i) cancel, terminate or
repudiate this Lease or any Schedules hereto; (ii) reject or revoke acceptance
of the Equipment; (iii) recover damages from Lessor for any breach of warranty
or representation in respect to the Equipment; (iv) assert any security interest
in the Equipment in Lessee's possession or control; (v) deduct, recoup or offset
of any claimed damages due to Lessor's default; (vi) accept partial delivery of
the Equipment or to "cover" by purchasing or leasing replacement equipment;
(vii) recover any general, incidental or consequential damages (including
without limitation, expenses and commissions in connection with the inspection,
receipt, caring for, storing, repair or disposal of any Equipment; or (viii)
assert a claim by way of replevin, detinue, sequestration, claim, delivery, or
the like, for an Equipment.
27. GOVERNING LAW AND CONSENT OF JURISDICTION. This Lease has been delivered and
accepted in the Commonwealth of Pennsylvania. The laws and decisions of said
Commonwealth (including, without limitation, as to the statute of limitations)
will govern and control the construction, enforceability, validity and
interpretation of this Lease, and of all agreements, instruments and documents,
heretofore, now or hereafter executed by Lessee and delivered to Lessor
pertaining or relating to this Lease or the transactions contemplated herein.
The parties agree that any action or proceeding arising out of or relating to
this Lease may be commenced in the Court of Common Pleas of Allegheny County,
Pennsylvania, or in the United States District Court for the Western District of
Pennsylvania and Lessee agrees that, in addition to any other manner of service
prescribed by law or rule of court, a summons and complaint commencing an
action or proceeding in either such Court shall be properly served upon Lessee
and shall confer personal jurisdiction if served personally or by United States
registered mail, return receipt requested, to the Lessee at the address
indicated on the first page of the Lease.
28. CONFLICT OF PROVISIONS. In the event of any conflict of provisions between
any Schedule and this document or between any Schedule and any other document,
the provisions of the Schedule shall control.
29. AMENDMENTS AND WAIVERS. This document, the Schedule(s), the Addendum(s),
Supplements(s) and the Acceptance(s) executed by Lessor and Lessee constitute
the entire agreement between Lessor and Lessee with respect to the Equipment and
the subject matter of this Lease. No term or provision of this Lease may be
changed, waived, amended or terminated except by a written agreement signed by
both Lessor and Lessee, except that Lessor may insert on the appropriate
Schedule the serial numbers of the Equipment after delivery thereof. No express
or implied waiver by Lessor of any Event of Default hereunder shall in any way
be, or be construed to be, a waiver of any future and/or subsequent Event of
Default whether similar in kind or otherwise.
30. NOTICES. Except as otherwise provided in paragraph 27 above, service of all
notices under this Lease shall be sufficient if given personally, sent via
facsimile with confirmation of receipt, sent via overnight courier, or sent
certified mail, return receipt requested, to the party involved at its
respective address set forth in the most recent Schedule relating hereto, or at
such address as such party may otherwise provide in writing from time to time.
Any such notice mailed to such address shall be effective when deposited in the
United States mail, duty addressed with first-class postage prepaid.
8
31. MISCELLANEOUS.
(a) Whenever the context of this Lease requires, the neuter gender
includes the masculine and feminine, and the singular number includes the
plural. Whenever the word Lessor is used herein, it shall include all assignees
of Lessor. If there is more the one Lessee named in this Lease, the liability of
each shall be joint and several.
(b) The titles to the paragraphs of this Lease are solely for the
convenience of the parties, shall not be deemed to constitute a part hereof, and
are not an aid in the interpretation of the document.
(c) Time is of the essence in the performance of this Lease and each
and all of its provisions.
(d) If any provision of this Lease is held invalid or unenforceable,
the remaining provisions will not be affected thereby, and to this end, the
provisions of this Lease are declared severable.
(e) As used herein "Lessee," if there be more than one, shall mean all
Lessees, or each of them, and in such case they are jointly and severally bound.
32. SECURITY INTEREST. If the Lease is deemed at any time to be a lease intended
as security, Lessee hereby grants to the Lessor a security interest in the
Equipment to secure all sums due hereunder, as well as any other obligations or
sums due by Lessee to Lessor, whether now existing or hereafter contracted for
or hereafter arising.
WITNESS the due execution hereof with the intent to be legally bound.
ATTEST/WITNESS: THE JUDGE GROUP, INC. -- LESSEE
By: /s/ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ----------------------------------
Title: Admin. Asst. Title: CFO
---------------------------- -------------------------------
Accepted at Berwyn, Pennsylvania by:
PNC LEASING CORP - LESSOR
By:
--------------------------------
Title:
-----------------------------
Cross Collateralization PNC LEASING CORP
Agreement PNCBANK
THIS CROSS COLLATERALIZATION AGREEMENT (this "Agreement") is made this 20th day
of April, 1999, by and among THE JUDGE GROUP, INC. (the "Grantor"), PNC BANK,
NATIONAL ASSOCIATION (the "Bank") and PNC LEASING CORP (the "Lessor").
WITNESSETH THAT:
WHEREAS, the Grantor and the Bank have entered into, or may hereafter
enter into, certain financing arrangements, as evidenced by one or more
promissory notes, loan agreements or other agreements, instruments and documents
(collectively, the "Loan Documents"); and
WHEREAS, the Grantor's obligations to the Bank under the Loan
Documents are secured by one or more mortgage liens, Uniform Commercial Code
security interests, pledges of personal property or other collateral security
arrangements in the Grantor's real or personal property, as set forth in the
Loan Documents (the "Loan Collateral"); and
WHEREAS, the Grantor and the Lessor have entered into, or may
hereafter enter into, one or more equipment leasing transactions pursuant to one
or more Lease Agreements, Equipment Schedules and related agreements,
instruments and documents (collectively, the "Lease Documents"); and
WHEREAS, the Grantor's obligations to the Lessor under the Lease
Documents are secured by the Lessor's ownership interest in, and by a Uniform
Commercial Code security interest granted by the Grantor to the Lessor in, the
equipment that is leased to the Grantor pursuant to the Lease Documents (the
"Lease Collateral"); and
WHEREAS the Bank and the Lessor are affiliates under the common
control of PNC Bank Corp; and
WHEREAS, the parties hereto desire to further secure all obligations
of the Grantor to both the Bank and the Lessor (collectively, the "Secured
Parties") with both the Loan Collateral and the Lease Collateral;
NOW, THEREFORE, in consideration of the mutual undertakings described
herein, and other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto covenant and agree as follows:
1. Security for Financing Arrangements. The obligations secured by the
Loan Collateral and by the Lease Collateral shall include all loans, advances,
debts, liabilities, obligations, covenants and duties owing by the Grantor to
the Bank or the Lessor (whether held jointly or severally), of any kind or
nature, present or future, whether or not evidenced by any note, guaranty, lease
or other instrument, whether arising under any agreement, instrument or
document, whether or not for the payment of monies, whether arising by reason of
an extension of credit, opening of a letter of credit, loan, guarantee, lease or
in any other manner, whether arising out of overdrafts on deposits or other
accounts or electronic funds transfers (whether through automatic clearing
houses or otherwise) or out of the non-receipt of or inability to collect funds
or otherwise not being made whole in connection with depository transfer check
or other similar arrangements, whether direct or indirect (including those
acquired by assignment or participation), absolute or contingent, joint or
several, due or to become due, now existing or hereafter arising, and any
amendments, extensions, renewals or increases and all costs and expenses of the
Bank or the Lessor incurred in the documentation, negotiation, modification,
enforcement, collection or otherwise in connection with any of the foregoing,
including reasonable attorney's fees and expenses (collectively, the
"Obligations").
2. Effect on Loan Documents and Lease Documents. This Agreement is
deemed incorporated into each of the Loan Documents and the Lease Documents. To
the extent that any term or provision of this Agreement is or may be deemed
expressly inconsistent with any term or provision in any Loan Document or any
Lease Document, the terms and provisions hereof shall control. The Grantor
hereby confirms and ratifies each of the liens, security interests, mortgages or
pledges granted in the Loan Collateral and the Lease Collateral, all of which
shall continue unimpaired and in full force and effect. Except as modified
hereby, the terms and provisions of the Loan Documents and the Lease Documents
remain unchanged and in full force and effect. Except as expressly provided
herein, this Agreement shall not constitute an amendment, waiver, consent or
release with respect to any provision of the Loan Documents or the Lease
Documents, a waiver of any default or Event of Default thereunder, or a waiver
or release of any of the Secured Parties' rights and remedies (all of which are
hereby reserved). The Grantor hereby ratifies and confirms the confession of
judgment and waiver of jury trial provisions (if applicable) contained in the
Loan Documents or the Lease Documents.
3. Further Assurances. At any time and from time to time, upon demand
of either Secured Party, the Grantor will give, execute, file and record any
notice, financing statement, continuation statement, instrument, document or
agreement that such Secured Party may consider necessary or desirable to create,
preserve, continue, perfect or validate the cross-collateralized security
interests granted hereunder or to enable such Secured Party to exercise or
enforce its rights hereunder, under the Loan Documents or under the Lease
Documents with respect to such security interests.
4. Rights and Obligations Absolute. All rights of the Secured Parties
and the security interests hereunder and the obligations of the Grantor
hereunder and under the Loan Documents and the Lease Documents shall be absolute
and unconditional and will not be affected by any amendment, renewal, waiver of
or increase in the Obligations, any surrender, exchange, acceptance, compromise
or release by the Secured Parties of any other party, or any guarantee or any
security held by either of them for any of the Obligations, by any delay or
omission of the Secured Parties in exercising any right or power with respect to
any of the Obligations or any guarantee or collateral held by either of them for
any of the Obligations, by any failure of the Secured Parties to take any steps
to perfect or maintain their lien or security interest in or to preserve their
rights to any security or other collateral for any of the Obligations or any
guarantee, by any irregularity, unenforceability or invalidity of any of the
Obligations or any part thereof or any security or other guarantee thereof, or
by any other circumstance which might otherwise constitute a defense available
to or a discharge of the Grantor or a third party pledgor. Nothing herein shall
prevent or otherwise limit either Secured Party from exercising all remedies
otherwise permitted by applicable law or under the terms of the documents
evidencing the Obligations owed to such Secured Party.
5. Obligations of Secured Parties Regarding Enforcement of Remedies.
Either of the Secured Parties may exercise their remedies against the Loan
Collateral or the Lease Collateral at any time following the occurrence of an
Event of Default (as defined in any Loan Document or any Lease Document),
without the consent of the other Secured Party. All proceeds received upon any
exercise of remedies against the Loan Collateral shall be applied first to the
Obligations owed to the Bank under the Loan Documents and thereafter to the
Obligations owed to the Lessor under the Lease Documents. All proceeds received
upon any exercise of remedies against the Lease Collateral shall be applied
first to the Obligations owed to the Lessor under the Lease Documents and
thereafter to the Obligations owed to the Bank under the Loan Documents. Nothing
herein shall require either Secured Party to declare an Event of Default or to
enforce its remedies under the Loan Documents or the Lease Documents at any
time, but each Secured Party shall notify the other Secured Party when any such
action is taken. Neither of the Secured Parties shall be under any obligation to
▇▇▇▇▇▇▇▇ any assets in favor of the Grantor or any other person or entity or
against or in payment of any or all of the Obligations due the Secured Parties.
6. Repayments or Recovery from Secured Parties. If any demand is made
at any time upon either Secured Party for the repayment or recovery of any
amount received by it in payment or on account of any of the Obligations and if
such Secured Party repays all or any part of such amount by reason of any
judgment, decree or order of any court or administrative body or any settlement
or compromise of any such demand, then (a) the Grantor will be and remain liable
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never been received originally by such Secured Party and (b) if one
Secured Party realized upon the Loan Collateral or the Lease Collateral and paid
over a portion of the proceeds to the other Secured Party in accordance with
Section 5 hereof, the Secured Party receiving such proceeds from the Secured
Party which originally received such proceeds shall restore to the Secured Party
which originally received such proceeds the amount required to be restored,
without interest. The provisions of this section will be and remain effective
notwithstanding any contrary action which may have been taken by the Grantor in
reliance upon such payment, and any such contrary action so taken will be
without prejudice to the Secured Parties' rights under this Agreement, the Loan
Documents and the Lease Documents, and will be deemed to have been conditioned
upon such payment having become final and irrevocable.
7. Changes in Writing. No modification, amendment or waiver of any
provision of this Agreement nor consent to any departure by the Grantor
therefrom will be effective unless made in a writing signed by the Secured
Parties, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on the
Grantor in any case will entitle the Grantor to any other or further notice or
demand in the same, similar or other circumstance.
8. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
9. Counterparts. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts, but all
such copies shall constitute one and the same instrument.
10. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the Grantor and the Secured Parties and their respective
heirs, executors, administrators, successors and assigns; provided, however,
that the Grantor may not assign this Agreement in whole or in part without the
Secured Parties' prior written consent and either Secured Party at any time may
assign this Agreement in whole or in part.
11. Interpretation. In this Agreement, unless the parties otherwise
agree in writing, the singular includes the plural and the plural the singular;
the word "or" shall be deemed to include "and/or", the words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; references to sections or exhibits are to those of this
-2-
Agreement unless otherwise indicated; and references to agreements and other
contractual instruments shall be deemed to include all subsequent amendments and
other modifications to such instruments, but only to the extent such amendments
and other modifications are not prohibited by the terms of this Agreement.
Section headings in this Agreement are included for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose. If
this Agreement is executed by more than one party as the Grantor, the
obligations of such persons or entities will be joint and several.
WITNESS the due execution hereof as a document under seal, as of the date first
written above.
WITNESS/ATTEST: THE JUDGE GROUP, INC.
By: /s/ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -----------------------------------
Print Name: Admin. Asst. Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------ --------------------------
Title: CFO
--------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
(SEAL)
Print Name:
---------------------------
Title:
--------------------------------
PNC LEASING CORP
By:
-----------------------------------
(SEAL)
Print Name:
---------------------------
Title:
--------------------------------
-3-
CONSENT OF GUARANTOR
The undersigned guarantor hereby consents to the provisions of the
foregoing Cross Collateralization Agreement and confirms and agrees that the
undersigned's obligations under the Guaranty and Suretyship Agreement dated
April 20, 1999 (the "Guaranty"), relating to some or all of the Obligations of
the Grantor mentioned in the foregoing Cross Collateralization Agreement shall
be unimpaired by the Cross Collateralization Agreement and that the undersigned
has no defenses or set offs against the Bank, the Lessor or their respective
officers, directors, employees, agents or attorneys with respect to the Guaranty
and that all of the terms, conditions and covenants in the Guaranty remain
unaltered and in full force and effect and are hereby ratified and confirmed.
The undersigned hereby certifies that the representations and warranties made in
the Guaranty are true and correct. The undersigned hereby ratifies and confirms
the confession of judgment and waiver of jury trial provisions (if applicable)
contained in the Guaranty.
WITNESS the due execution hereof as a document under seal, as of April 20, 1999,
intending to be legally bound hereby.
WITNESS/ATTEST: THE JUDGE GROUP, INC.
By: /s/ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -----------------------------------
(SEAL)
Print Name: Admin. Asst. Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------ --------------------------
Title: CFO
--------------------------------
-4-
PNC LEASING CORP PNCBANK
Berwyn, Pennsylvania
Schedule of Leased Equipment Schedule Number: 01447-001
(First Amendment Tax Lease) Master Lease Agreement No.: 1447
Master Lease Agreement Date: April 20, 1999
LESSEE: The Judge Group, Inc. SUPPLIER: The Judge Group, Inc.
Two Bala Plaza, Suite 405 Two Bala Plaza, Suite 405
Bala Cynwyd, PA 19004 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. SCHEDULE. This Schedule of Lease Equipment ("Schedule") is hereby made a
part of the Lease referenced above between the undersigned Lessor and
between the undersigned Lessee. All terms and conditions of said Lease
are incorporated herein by reference.
2. EQUIPMENT. The Equipment which is subject to the Lease is described on
the supplement attached hereto and incorporated herein ("Supplement"),
and includes all cash and non-cash proceeds and products (including
without limitation insurance proceeds) of the Equipment, and all
additions and accessions thereto, substitutions therefor and replacements
thereto.
3. TITLE OF EQUIPMENT. At Lessee's request, Lessor has purchased the
Equipment as a buyer in the ordinary course of business for value. Title
to the Equipment leased hereunder shall remain with the Lessor at all
times. Lessee shall have no right, title or interest in or to the
Equipment except as expressly set forth in the Lease.
4. EQUIPMENT LOCATION. The Equipment shall be located at the address stated
in Supplement and shall not be removed without Lessor's prior written
consent.
5. INTERIM RENTAL TERM. The interim rental term of the Lease as respects the
Equipment described herein shall commence on the date of Lessor's first
advance of funds for the purchase of the Equipment and shall terminate on
the day before the commencement of the base lease term.
6. INTERIM RENT. Interim rent shall be calculated at the Bank's Prime Rate
of interest on the amount funded by Lessor from time to time, for the
number of days outstanding from each funding date until the lease
commencement date ("Interim Rent"), plus applicable taxes, if any.
Interim Rent shall be due and payable monthly during the interim rental
term, upon receipt by Lessee of Lessor's invoice therefor.
7. LEASE TERM. The base term of the Lease as respects the Equipment is set
forth in the Supplement.
8. RENT. The Lessee agrees to pay basic rent for the Equipment in the amount
and on the dates set forth in Supplement, plus applicable taxes, if any.
9. DEPRECIATION RECOVERY PERIOD. For purposes of Sections 168(e)(3) and
168(c) of the Code (as defined hereafter), the Equipment constitutes five
(5) year recovery property.
10. TAX INDEMNIFICATION.
(a) Tax Assumptions. This Lease has been entered into on the basis that
Lessor is entitled to such federal, state and local income tax
deductions, credits and other benefits (the "Tax Benefits") as are
provided to an owner of property including, without limitation: (A) the
Recovery Deductions (as defined herein); and (B) the interest deduction
under the Internal Revenue Code of 1986, as amended (the "Code") in the
full amount of any interest paid or accrued by Lessor, using Lessor's
method of tax accounting, for any indebtedness incurred by Lessor in
financing its purchase of the Equipment (the "Interest Deductions").
(b) Tax Representations. Lessee represents and warrants to Lessor (the
"Tax Representations") that: (A) for purposes of Sections 168(e)(3) and
168(c) of the Code, each Item of Equipment constitutes an asset described
in the "property class" and applicable recovery period" as designated
herein in paragraph 9; (B) the Lessor shall be entitled to claim federal,
state and local depreciation deductions (the "Recovery Deductions") which
are based upon, and will fully recover, the total cost of each Item of
Equipment, including, for federal income tax purposes, modified
accelerated cost recovery system deductions computed pursuant to Code
Section 168(b)(1)(A) and (B) and 168(e)(3) based upon 100% of Lessor's
original cost of each Item of Equipment; (C) each Item of Equipment is
not "limited use property" within the meaning of Revenue Procedure 76-30
Page 1 of 4
1976-2 Cum. Bull. 647), and no improvements, changes, additions, or alterations
made by or at the request of Lessee will cause such Item of Equipment to be
"limited use property"; (D) this Lease, including any and all Schedules,
constitutes a "true lease" for federal, state and local income tax purposes and
Lessor will be the "true owner" of each Item of Equipment entitled to claim the
Recovery Deductions and other Tax Benefits anticipated by Lessor hereunder; (E)
each Item of Equipment is reasonably estimated to have an economic useful life
of at least 125% of the initial term of the Lease and have an economic value of
at least 20% of Lessor's original cost of the Item of Equipment at the
expiration of the lease term; (F) each Item of Equipment does not and will not
require any improvements, modifications, alterations or additions in order to
render it complete for its intended use by Lessee; (G) Lessor will not realize
any taxable income as a result of any improvements, modifications, alterations
or additions to the Equipment or any Item of Equipment made by anyone other than
Lessor; (H) all amounts includable in the gross income of Lessor with respect to
each Item of Equipment and all deductions allowable to Lessor with respect to
each Item of Equipment will be treated as derived from, or allocable to, sources
within the United States; and (I) Lessee will maintain sufficient records to
verify such use which records will be furnished to Lessor within 30 days after
receipt of a demand therefor.
(c) Tax Indemnity. If for any reason whatsoever, including, without limitation,
the falsehood or inaccuracy of any Tax Representation (excluding only a failure
of Lessor to claim properly or timely the Recovery Deductions or Interest
Deductions for the appropriate year, or the failure of Lessor to have sufficient
taxable income to benefit from the Recovery Deductions or Interest Deductions):
(A) Lessor shall lose, shall not have or shall lose the right to claim or there
shall be disallowed, eliminated, reduced, or recaptured with respect to Lessor,
for federal, state or local income tax purposes, all or any portion of the Tax
Benefits with respect to an Item of Equipment; or (B) the Lessor's anticipated
net after-tax economic and accounting yields and periodic net after-tax cash
flows over the term of the applicable Schedule (based upon the same assumptions
used by Lessor in originally evaluating the Lease and applicable Schedule at the
commencement of the term of the applicable Schedule) (the Lessor's "Anticipated
Economics") is adversely affected due to (1) any income or deductions with
respect to any Item of Equipment being treated as derived from, or allocable to,
sources without the United States, or (ii) enactments of new income tax
legislation or amendments and other changes to the Code or any other state or
local income tax law, including the promulgation of regulations and judicial or
administrative rulings with respect thereto; or (C) the Lessor shall be required
to include any amount in its taxable income as a result of any improvements,
modifications, alterations or additions to any Item of Equipment made by anyone
other than Lessor (an occurrence of an event under (A), (B) and/or (C) being
referred to individually or collectively as a "Loss"); then, at the option of
the Lessor, (x) the rent over the remainder of the term of the applicable
Schedule shall, on and after the next succeeding rent payment date, after
written notice to Lessee by Lessor that a Loss has occurred, be increased by
such amount which, in the sole opinion of Lessor, after deduction of all taxes
owed by Lessor to any governmental or taxing authority as a result of such
increase in rent, will cause Lessor's actual net after-tax economic and
accounting yields and periodic net after-tax cash flows over the term of the
applicable Schedule (the Lessor's "Actual Economics) to equal the Lessor's
Anticipated Economics that would have been available if such Loss had not
occurred, and Lessee shall forthwith pay to Lessor, on demand, an amount which,
after deduction of all taxes owed by Lessor to any governmental or taxing
authority as a result of the receipt of such amount, shall be equal to the
amount of any penalties, interest or additions to tax which may be assessed by
any governmental or taxing authority against Lessor attributable to the Loss, or
(y) after written notice to Lessee by Lessor that a Loss has occurred, Lessee
shall pay to Lessor, upon demand, in a lump sum, an amount which, after
deduction of all taxes owed to any governmental or taxing authority by Lessor as
a result of the receipt of such lump sum payment, will cause Lessor's Actual
Economics to be equal to the Lessor's Anticipated Economics that would have been
available if such Loss had not occurred plus an amount which, after deduction of
all taxes owed by Lessor to any governmental or taxing authority as a result of
the receipt of such amount, shall be equal to the amount of any penalties,
interest, or additions to tax which may be assessed by any governmental or
taxing authority against Lessor attributable to the Loss.
(d) Calculations. All calculations of Lessor's Actual Economics with respect to
a Loss shall be determined on the basis of the assumption that Lessor will be
subject to federal, state and local corporate income tax rates at the maximum
statutory rate. Any written notice that any Loss has occurred pursuant to this
paragraph 10 shall be accompanied by a written statement from Lessor describing
in reasonable detail such Loss and the computations of the amounts payable,
either in a lump sum or revised rent payments as set forth above, which
computation shall be binding and conclusive upon Lessee, absent manifest error.
(e) Interest. Upon failure to pay any indemnification amount when due, by demand
or otherwise, such unpaid obligation shall bear interest at a per annum rate
equal to the prime rate of interest as announced, from time to time, by the
Bank.
(f) Consolidated Return. As used in this paragraph 10, the term "Lessor" shall
include any successor or assign of Lessor and any member of an affiliated group
of which Lessor is, or may become, a member if consolidated, joint or combined
returns are filed for such affiliated group for federal, state or local income
tax purposes.
(g) Survival. The indemnities and assumptions of liabilities and obligations
provided for in this paragraph 10 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
Page 2 of 4
11. END OF TERM OPTIONS.
(a) Provided that no Event of Default will have occurred and is
continuing, on the expiration of the base lease term, at its option,
Lessee may purchase all of the Lessor's right, title and interest in and
to all, but not less than all of the Equipment described in this
Schedule. On the last day of the base lease term, the Lessee shall pay to
the Lessor an amount equal to the greater of (I) the fair market value of
the Equipment determined in accordance with the provisions of paragraph
11(b), or (ii) the percent of the Equipment Cost stated in the Supplement
hereto. In order to exercise its option, Lessee shall notify Lessor in
writing of its intention to exercise such option at least 180 days prior
to the expiration of the base lease term. Lessee will deliver to the
Lessor, on or before the expiration of the base lease term, an appraisal
of the Equipment as described in subparagraph 11(b), together with the
payment of the purchase price in immediately available funds. Thereupon,
the Lessor shall convey the Equipment to the Lessee on an as-is, where-is
basis without representation or warranty whatsoever, except that the
Equipment shall be conveyed free and clear of any liens or encumbrances
created due to or through the acts or omissions of the Lessor.
(b) As used in paragraph 11(a), "fair market value" of the Equipment
shall be the value of the Equipment as of the last day of the base term
of the Lease, as determined by an independent appraiser selected by the
Lessee and retained at Lessee's expense. The report of the appraiser
shall be in writing and delivered to the Lessor on or before the
expiration of the base lease term.
(c) In the event that the Lessee does not purchase the Equipment in
accordance with paragraph 11(a) above, then (I) Lessee shall continue to
pay rent for the remainder of the base lease term in the amount set forth
in the Supplement hereto, and (ii) this Schedule shall automatically be
extended for an additional term (the "Renewal Term") as stated in the
Supplement hereto, without further action on the part of the Lessor or
the Lessee. At the expiration of the Renewal Term and conditioned that no
Event of Default shall have occurred and be continuing, the Lessee may
either (i) purchase the Equipment at the fair market value as of the last
day of the Renewal Term as determined in accordance with paragraph 13
herein, or (ii) return the Equipment to the Lessor in accordance with
paragraph 12 herein.
12. RETURN OF EQUIPMENT. Lessee shall give Lessor written notice a minimum of
six (6) months prior to the expiration of this Lease of its intent to
return the Equipment. Upon the expiration or earlier termination of this
Lease, Lessee shall return each Item of Equipment, freight and insurance
prepaid, to Lessor (or Lessor's nominee) at a location designated by
Lessor. If requested by Lessor, Lessee will provide 180 days free storage
at the Equipment's location at the expiration of the term. During the
storage period, Lessee shall maintain the Equipment in operating
condition for the purpose of on-site inspections by prospective buyers
and shall keep the Equipment insured in accordance with paragraph 18 of
the Lease. The Equipment and all parts thereto shall be free and clear of
all liens (other than Lessor liens), and shall be free of all advertising
or insignia and residual materials, cleaned, painted, complete with no
missing components or attachments, and fully operational and able to
perform its described task effectively, without repair or overhaul,
within the original tolerances and specifications set by the
manufacturer. Any and all costs of dismantling, packing, and removing of
the Equipment shall also be paid by Lessee. If the Equipment is returned
in a condition other than that described, Lessor may commission an
independent appraiser, licensed professional engineer, or manufacturer
technical representative, obtained by Lessor at Lessee's cost and
expense, to determine the extent of costs to return the Equipment to the
condition required herein. Lessee shall promptly advance payment for all
necessary repairs. Lessee's obligations to pay for repairs shall be
reduced by any proceeds of insurance which Lessor has received due to the
damage to the Equipment. If Lessee fails to provide timely notice of
return or fails to return the Equipment at the end of the base lease term
or any renewal thereof to the designated location, and does not exercise
the renewal or purchase options provided for herein (if any), then this
Lease, at Lessor's option, will be deemed extended on a month-to-month
basis for a minimum renewal term of three (3) months, with rent due on
the first of each month at the rate applicable during the base lease or
renewal term just ended.
13. FAIR MARKET VALUE AND ESTIMATED USEFUL LIFE. In all circumstances, except
where Lessee has elected to purchase the Equipment pursuant to paragraph
11(a), fair market value, fair market rental value and estimated useful
life of the Equipment shall be determined by an appraiser of recognized
standing selected by mutual agreement of the Lessor and Lessee. The
appraiser shall determine the fair market value of the Equipment on its
in place value without reduction or consideration of the cost of
dismantling, preparation for shipping or transportation of the Equipment.
The appraiser's decision shall be binding on the parties. If the Lessor
and Lessee are not able to agree on an appraiser, then each party shall
select an appraiser, and the two appraisers shall select a third
appraiser. The two appraisals which are closest in dollar amount and/or
estimated life, as the case may be, shall be averaged to determine the
fair market value or rental or the estimated useful life, as the case may
be, which determination shall be binding upon the parties. If Lessee has
given Lessor notice of Lessee's intentions to exercise its purchase or
renewal option, and the parties have obtained an appraisal of the
Equipment as provided for herein, Lessee shall be bound by the appraisal
and shall purchase the Equipment, or renew the Lease, as the case may be,
at the value determined by the appraisal. If Lessee fails or refuses to
cooperate in the appointment of an appraiser, the value determined by the
appraiser chosen by the Lessor shall be final and binding. The cost of
the appraisal(s) shall be borne by the Lessee.
Page 3 of 4
14. MARKING OF EQUIPMENT. At Lessor's request, Lessee shall ▇▇▇▇ the
Equipment in a distinct and conspicuous manner with the name of the
Lessor followed by the words "Owner and Lessor" or other appropriate
words designated by Lessor. Lessee shall not alter, deface or remove any
of Lessor's ownership identification plates or markings on the Equipment
and, upon Lessor's request, Lessee shall affix or re-affix such
identification.
15. INSURANCE. In addition to the requirements contained in paragraph 18 of
the Lease, the following insurance requirements shall apply:
Liability Coverage:
(a) General liability including/comprehensive form:
premises/operations; products/completed operations; contractual
liability; independent contractors; broad form property damage;
personal injury; and collapse hazard.
(b) Bodily Injury and Property Damage Combined Single Limit Per
Occurrence: $1,000,000.00
(c) Fire-legal liability-custody, care or control, each occurrence:
$100,000.00
Property Coverage:
(a) All risk of physical loss; Equipment must be insured for at least
the total original cost.
16. COVENANTS. By executing and delivering to Lessor, the Lessee Acceptance
Certificate, Lessee warrants, covenants and agrees that (a) Lessee has
received all of the Equipment described in this Schedule at the location
described in paragraph 4 hereof; (b) Lessee has duly inspected and
accepts such Equipment without reservation; (c) Lessee is unconditionally
bound to pay to Lessor the total rent and other payments due under the
Lease, whether or not the Equipment described herein may now or hereafter
become unsatisfactory in any respect; and (d) notwithstanding anything
contained herein, Lessor and Lessee shall continue to have all rights
which either of them might otherwise have with respect to the Equipment
described herein against any manufacturer or seller of the Equipment or
any part thereof.
17. ADDITIONAL PROVISIONS. (a) This Supplement is incorporated herein by
reference; (b) Lessee grants Lessor the right to insert the Equipment
description and payment dates, amounts, and terms in the Supplement at
the time of commencement of the basic lease term.
WITNESS the due execution hereof with the intent to be legally bound this 20th
day of April, 1999.
Lessor: PNC LEASING CORP Lessee: THE JUDGE GROUP, INC.
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Title: CFO
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