EXHIBIT 10.27
Master Lease Agreement
Lease No.: 03737
THIS MASTER LEASE AGREEMENT ("Lease") is made this 26th day of July, 2005, by
and between PNC LEASING, LLC ("Lessor"), a subsidiary of PNC Bank, National
Association (the "Bank"), with an address at 0000 Xxxxxxxxx Xx., Xxxxx 000,
Xxxxxx, XX 00000, and MEDIA SCIENCES, INC. ("Lessee") with its principal place
of business at 0 Xxxxxxxx Xx., Xxxxxxx, XX 00000.
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, all the machinery, equipment and other personal property (individually
an "Item of Equipment" and collectively the "Equipment") described in Schedules
of Leased Equipment which may be executed by Lessor and Lessee and attached
hereto or incorporated herein by reference ("Schedules"). "Equipment" shall mean
the Equipment described in a specific Schedule, unless the context clearly
indicates otherwise. The disposition of any rights or obligations of either
party under this Lease in conjunction with any Schedule shall not affect the
rights and/or obligations with either party under any other Schedule, so long as
Lessee is not in default under 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 Lessor may proceed with its remedies against Lessee in
accordance with paragraph 24 herein, with respect to any particular Schedule or
all Schedules. The terms of this Lease are also modified by any one or more
Supplements which are attached to and which make reference to this Lease (a
"Supplement"). A Supplement contains terms and conditions applicable to the type
of equipment leasing product described therein. 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", if more than one counterpart of such
Schedule is executed), 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 (if any) shall be marked and considered a
"Duplicate". Facsimiles will be considered "originals" upon receipt and
countersignature by Lessor for all evidentiary purposes including any
requirement of a "writing" under applicable Statute of Frauds provisions. 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 Lessor's counterpart of
the numbered Schedule.
2. TERM. The obligations under this Lease begin with Lessor's written acceptance
and shall end upon full performance and observance of all terms, conditions and
covenants of the Lease and any extensions. The rental term for Equipment begins
on the date indicated on the related Schedule and shall end on the last day of
the term stated in such Schedule. Lessee may not terminate the Lease or any
Schedule prior to the last day of the term. Any interim rental term shall be set
forth in any such Schedule.
3. RENT. The rent, including interim rental payments, for the Equipment shall be
the amount stated in the applicable Schedule (the "Rent"). Rent is an absolute
obligation of Lessee due 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 shall be payable
to Lessor at X.X. Xxx 00000 Xxxxxx, XX 00000-0000, or at such other place as
Lessor or its assigns may designate in writing to Lessee.
4. DELINQUENT RENT PENALTY. If any Rent or other amount due is not paid when
due, Lessee agrees to pay a delinquent rent penalty of five percent (5%) on the
amount of such Rent or other amount due, but not exceeding the lawful maximum,
if any. Delinquent interest at a rate per annum equal to the rate publicly
announced by the Bank from time to time as its prime rate shall be payable on
demand with respect to all such delinquent amounts. Interest shall accrue
whether or not judgment has been entered.
5. ADVANCES . Before the beginning date of the base lease term, Lessor may in
its sole discretion make such advances, deposits and reimbursements as may be
required for purchase of the Equipment. Before Lessor makes any advance, Lessee
agrees to sign and deliver a Progress Payment Addendum and any other documents
Lessor may reasonably request, such as certified resolutions, incumbency
certificates or other evidence of authority and opinions of counsel in form and
substance reasonably satisfactory to Lessor.
6. DELIVERY AND INSTALLATION. Lessee will select the Equipment and the supplier,
and in reliance thereon, Lessor will order the Equipment, or Lessor may, at its
option, accept from Lessee an assignment of any existing purchase order. Lessor
shall not be liable for loss or damage for any reason, such as 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. If the cost of any Item of Equipment differs from the price set forth in
the purchase order, the periodic rental shall be changed to fully reflect any
such difference.
7. WARRANTY OF LESSEE'S QUIET POSSESSION. Lessor covenants, subject to the
disclaimer of warranties set forth immediately below, that so long as Lessee
faithfully performs this Lease, Lessee may quietly possess and use the Equipment
without interference by Lessor, or by any party claiming by or through Lessor.
8. DISCLAIMER OF WARRANTIES . LESSEE ACKNOWLEDGES AND AGREES THAT (i) THE
EQUIPMENT AND EACH PART THEREOF IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE
SELECTED BY AND ACCEPTABLE TO LESSEE, (ii) LESSEE IS SATISFIED THAT THE
EQUIPMENT AND EACH PART THEREOF IS SUITABLE FOR ITS RESPECTIVE PURPOSE, (iii)
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 LESSOR, AND (v) 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) LESSOR'S TITLE
THERETO, OR (C) ANY OTHER MATTER WHATSOEVER, IT BEING AGREED THAT ALL SUCH
RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY 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. Lessee's recourse for breach of any representation or warranty of the
vendor or 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, applicable to any of the
Equipment, which is enforceable by Lessor in its own name, provided, however,
that (a) Lessee is not in default and (b) Lessor shall not be obligated to
resort to litigation n 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.
9. NATURE OF EQUIPMENT. The Equipment shall remain personal property even if it
is 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 or entity having an encumbrance or lien upon the real property where
any of the Equipment is located, a waiver of any lien, encumbrance or interest
which such third party 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 do everything 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 to enter upon the premises where the
Equipment is located for the purpose of inspection. Provided 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 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; (ii) permit anyone other than authorized and competent personnel
to operate the Equipment; nor (iii) terminate the use of the Equipment prior to
the last day of the term indicated in the applicable Schedule.
12. ALTERATIONS. Without Lessor's prior written consent, Lessee shall make no
alterations, modifications or attachments to the Equipment which impair its
economic value, economic and useful life, or functional utility. All
alterations, modifications and attachments made to the Equipment must be removed
without damaging the functional capabilities or economic value of the Equipment
upon the termination of the Lease. If not so removed, they shall automatically
become Lessor's property. Under no circumstances shall any such alteration,
modification or attachment be subject to third party financing or encumbered by
Lessee or result in the creation of a mechanic's or materialman's lien, except
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 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, regulations or
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 Lessor's
expense pursuant to any applicable law. 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) Lessee will bear all risk of loss, damage, theft or destruction,
partial or complete, to the Equipment 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 t o 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 xxxxx 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 the proceeds of any insurance or
compensation received by Lessor, by reason of such partial loss.
(e) Lessor shall not be obligated to undertake the collection of any
claim against any person for either total or partial loss of 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 agrees to indemnify each of Lessor, its
directors, officers and employees and each legal entity, if any, who controls
Lessor (the "Indemnified Parties") and to hold each Indemnified Party harmless
from and against any and all claims, damages, losses, liabilities and expenses
(including all fees and charges of internal or external counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with or arising out of the matters referred
to in the Lease or any related document by any person, entity or governmental
authority (including any person or entity claiming derivatively on behalf of
Lessee), whether (a) arising from or incurred in connection with any breach of a
representation, warranty or covenant by Lessee, (b) 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 (c) arising out of or
resulting from any suit, action, claim, proceeding or governmental
investigation, pending or threatened, whether based on statute, regulation or
order, or tort, or contract or otherwise, before any court or governmental
authority, which arises out of or relates to the Lease or any related document;
provided, however, that the foregoing indemnity agreement shall not apply to
claims, damages, losses, liabilities and expenses solely attributable to an
Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this Lease,
payment of any amounts due and assignment of any rights hereunder. Lessee may
participate at its expense in the defense of any such action or claim.
(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 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 Lessee irrespective of
when the same may have 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. 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 taxes received by Lessor shall be promptly forwarded to
Lessee. This subparagraph shall not be deemed to obligate Lessee to pay (i) any
taxes, fees, assessments and charges which may have been included in Lessor's
cost of the Equipment as set forth in Schedule(s) hereto, or (ii) any income or
like taxes against Lessor on or measured by the net income from the Rents
payable hereunder. 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 Lessor to the Equipment or would
subject the Equipment to forfeiture or sale. 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 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 of this paragraph 15 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
16. LESSEE'S ASSIGNMENT. Without Lessor's prior written consent, Lessee shall
not assign, bail, sublease, hypothecate, transfer or dispose of the Equipment or
any interest in this Lease nor impair Lessor's title to the Equipment. No
assignment, whether or not with Lessor's consent, shall release Lessee or any
guarantor from any of its respective obligations or otherwise materially
adversely affect any rights or remedies of Lessor under the Lease. Any attempted
assignment without Lessor's written consent shall be void and of no effect.
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 Rents 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, 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, in an amount and subject
to deductibles, 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 compliance with the terms and conditions of the Schedule and the
other terms and conditions of this paragraph 18, 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 other proper binding 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 Lessee's failure 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 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;
(f) Lessee appoints Lessor its attorney-in-fact to apply any insurance
proceeds received with respect to the Equipment.
19. FURTHER ASSURANCES . Lessee agrees that if the location of any Equipment
changes from the location listed on the applicable Schedule, or if Lessee
changes its name or form or jurisdiction of organization (or if a natural person
or general partnership, changes his, her or its principal residence), or
establishes a name in which it may do business, Lessee will immediately notify
Lessor of the additions or changes. If Lessor shall so request, Lessee shall
execute and deliver to Lessor such documents, including UCC financing, amendment
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. By its signature hereon, Lessee hereby authorizes
Lessor to execute and file against Lessee any such UCC financing, amendment and
continuation statements. 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 Lessee.
20. FURNISHING FINANCIAL INFORMATION. During the term of this Lease and any
extensions or renewals hereof, Les see will furnish to Lessor:
(a) Within 45 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 ("Financial Statements") 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 Lessee.
(b) As soon as practicable, but in any event within 120 days after the
end of each fiscal year, a copy of Lessee's annual audited Financial Statements,
certified without qualification by an independent certified public accountant of
recognized standing.
(c) In a timely manner such financial statements, reports and other
information as 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 lender (whether directly as a lender to Lessee or as one
lender in a bank syndicate agreeing to lend to Lessee, or as holder of a
participation in a loan by another lender to 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. Notwithstanding the foregoing, any such changes to any
Incorporated Provision which operate to waive or prevent the occurrence of a
default or Event of Default under any Loan Document shall not be effective
unless consented to in writing by Lessor in its sole discretion.
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 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
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 which continues for a period of ten (10) days following the date when
due;
(b) Lessee shall (i) fail to perform any covenant or requirement
relating to insurance or environmental matters, (ii) fail to keep the Equipment
free and clear of any claims, levies, liens and encumbrances; (iii) fail to
prevent the Equipment from being subjected to a foreclosure or forfeiture
proceeding, execution or attachment; or (iv) terminate the Lease or any Schedule
prior to the last day of the term;
(c) Death or judicial declaration of incompetency of Lessee, if an
individual, or death or judicial declaration of incompetency of an individual
partner or member, if Lessee is a partnership or limited liability company;
(d) The filing by or against Lessee of any proceeding in bankruptcy,
receivership, insolvency, reorganization, liquidation, conservatorship, or
similar proceeding (and in the case of any such proceeding instituted against
Lessee, such proceeding is not dismissed or stayed within 30 days of the
commencement thereof, provided that Lessor shall not be obligated to advance
additional funds during such period);
(e) Lessee shall make an assignment for the benefit of creditors, or
any levy, garnishment, attachment or similar proceeding is instituted against
any property of Lessee held by or deposited with Lessor;
(f) A final judgment for the payment of money in excess of $75,000 is
rendered against Lessee, or any attachment proceedings are instituted with
respect to any significant portion of 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) Lessee, or any affiliate of 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 lender
to Lessee or as one lender in a bank syndicate agreeing to lend to Lessee or
Lessee's affiliate, or as holder of a participation in a loan by another lender
to Lessee or lessee's affiliate), 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) Lessee shall make or permit any material change in the nature of
its business as carried on as of the date hereof, in the composition of its
current executive management, or in its equity ownership;
(i) Any event described in subparagraphs 23(c) through 23(h) hereof
shall occur with respect to any guarantor or any other party liable for payment
or performance of this Lease;
(j) Any certificate, statement, representation, warranty or financial
statement 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 of
this document or such Schedule;
(k) 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";
(l) Lessee shall fail to perform any non-monetary covenant, obligation,
term or condition of this Lease not described in this Paragraph 23 which failure
continues for a period of thirty (30) days following the earlier of the date
when Lessee becomes aware of such failure or the date of written notice thereof
to Lessee by Lessor.
24. REMEDIES . Upon the occurrence of any Event of Default hereunder, the rights
and duties of the parties shall be as set forth in 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 Lessee, Lessor may terminate this Lease as
to any or all of the Schedules then in effect;
(b) Lessor may demand that Lessee return the Equipment to Lessor
whereupon Lessee shall promptly deliver the Equipment to Lessor to the place or
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 Lessee's premises 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,
Lessee shall promptly pay to 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 judgment on such claim or the
date of payment of such sum by Lessee.
(d) In its sole discretion, Lessor may sell or release the Equipment or
any 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. Lessee shall be
liable for any deficiency.
(e) If an Event of Default described in Paragraph 23(d) occurs, or if
this Lease is rejected in any bankruptcy or other proceeding described in that
paragraph, then this Lease and Lessor's obligation to advance any additional
funds shall terminate automatically without the need for any written notice from
Lessor, and Lessor at its option may treat such automatic termination as an
exercise of any early termination, purchase option or early buyout option set
forth in any applicable Supplement or Schedule.
(f) 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 Lessor's right to
repossess any or all of the Equipment.
(g) Lessor's remedies shall be available to Lessor's successors and
assigns, shall be in addition to all other remedies provided to it under the UCC
(specifically, the remedies set forth in 13 Pa. C.S. xx.xx. 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 HEA
RING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY LESSOR IN THE EVENT OF
A DEFAULT HEREUNDER BY LESSEE.
25. LESSEE REPRESENTATIONS AND WARRANTIES . In order to induce Lessor to enter
into this Lease and to lease the Equipment to Lessee, Lessee re presents and
warrants, as of the date hereof, and as of the date of execution of each
Schedule hereunder, that:
(a) If not a natural person, Lessee is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization with
full 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. Lessee is duly qualified to do
business and is in good standing as a foreign entity 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) Lessee has full power and authority to enter into the transactions
provided for in this Lease and has been duly authorized to do so by all
necessary and appropriate action and, when executed and delivered by Lessee,
this Lease will constitute the legal, valid and binding obligations of Lessee,
enforceable in accordance with its terms.
(c) The execution, delivery, and performance by Lessee of this Lease
and all related instruments and the consummation by Lessee of the transactions
contemplated hereby: (i) do not require any stockholder approval or the consent
of any trustee or holder of any indebtedness or obligation of Lessee or 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, such approval o r consent has been obtained), (ii) 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) are not in conflict
with and do 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 Lessee is a party or by which it or its property is bound or
affected, and (v) do not and will not contravene Lessee's articles of
incorporation and by-laws or other organizational documents.
(d) 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 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 would have the same such effect.
(e) Under the laws of the state(s) in which the Equipment is to be
located, the Equipment consists solely of personal property.
(f) Lessee's financial statements (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.
(g) The address stated on page one of this Lease is the chief place of
business and chief executive office of Lessee; and 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, manufacture d or supplied the Equipment; that
Lessor has acquired the Equipment at the direction of Lessee and solely for
the purpose of leasing the Equipment to 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 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 Lessor has not sold, selected or delivered the
Equipment to 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 any Equipment.
27. GOVERNING LAW AND JURISDICTION. This Lease has been delivered and accepted
and will be deemed to be made in the State where Lessor's office indicated above
is located. THIS LEASE AND ALL AGREEMENTS, INSTRUMENTS AND DOCUMENTS HERETOFORE,
NOW OR HEREAFTER EXECUTED BY LESSEE AND DELIVERED TO LESSOR RELATING TO THIS
LEASE OR THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE WHERE LESSOR'S OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS
CONFLICT OF LAWS RULES. Lessee hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the county or judicial district
where Lessor's office indicated above is located; provided that nothing
contained in this Lease will prevent Lessor from bringing any action, enforcing
any award or judgment or exercising any rights against Lessee individually,
against any security or against any of Lessee's property within any other
county, state or other foreign or domestic jurisdiction. Lessor and Lessee agree
that the venue provided above is the most convenient forum for both parties.
Lessee waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Lease.
28. NOTICES . All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder ("Notices") must be in writing
and will be effective upon receipt. Notices may be given in any manner to which
the parties may separately agree, including electronic mail. Without limiting
the foregoing, first-class mail, facsimile transmission and commercial courier
service are hereby agreed to as acceptable methods for giving Notices.
Regardless of the manner in which provided, Notices may be sent to a party's
address as set forth above or to such other address as any party may give to the
other for such purpose in accordance with this section.
29. 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 this Lease is executed by more than one party as Lessee, the
obligations of such persons or entities will be joint and several.
(b) 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 Lease. Section
headings in this Lease are included for convenience of reference only
and shall not constitute a part of this Lease for any other purpose.
Unless otherwise specified in this Lease, all accounting terms shall be
interpreted and all accounting determinations shall be made in
accordance with GAAP.
(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) If there is any conflict between the terms of any Schedule and this
document or between any Schedule and any other document, the terms of the
Schedule shall control.
(f) Lessee will reimburse Lessor for Lessor's expenses (including the
reasonable fees and expenses of Lessor's outside and in-house counsel) in
connection with any amendments or modifications to this Lease or any related
document, and in connection with any collection or enforcement actions hereunder
or thereunder. If, at any time during the term of this Lease, Lessee requests
that Lessor take any action, provide any information or documents or execute any
agreements or other documents by reason of Lessor's having an interest in the
Equipment, then (i) Lessor may refuse in its sole discretion to comply with any
such request that does not arise in the ordinary course of an equipment leasing
transaction; and (ii) if Lessor agrees to comply with any such request, Lessee
agrees to advance to Lessor, or reimburse Lessor for, all reasonable expenses
incurred in complying with such request by Lessor or by any third party acting
on Lessor's behalf.
(g) This document, the Schedule(s), the Supplement(s), the
Addendum(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 and supersede all other prior agreements and
understandings whether oral or written between the parties with respect to the
subject matter hereof. This Lease may not 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 but shall be effective
only in the specific instance and for the purpose for which given. No Notice to
Lessee in any case will entitle Lessee to any other or further Notice in the
same, similar or other circumstance.
(h) Lessee hereby authorizes Lessor to make appropriate announcements
of the leasing arrangements entered into between Lessor and Lessee, including
but not limited to announcements which are commonly known as tombstones, in such
publications and to such selected parties as Lessor deems appropriate in its
sole and absolute discretion. Lessee shall not issue any press releases or other
public disclosures, either written or oral, of the existence or terms of this
Lease without Lessor's prior written consent; provided, that the foregoing shall
not prohibit Lessee from making any disclosures to or filings with any
governmental authority, or from disclosing this Lease to Lessee's accountants,
attorneys and other agents or to Lessee's lenders, or from reflecting the terms
of this Lease in any financial or accounting statements or reports made public
in the ordinary course of Lessee's business.
30. SECURITY INTEREST. If the Lease is deemed at any time to be a lease intended
as security, Lessee hereby grants to 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.
31. COUNTERPARTS. This Lease 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. Delivery of an executed counterpart of a
signature page to this Lease by facsimile transmission shall be effective as
delivery of a manually executed counterpart. Any party executing this Lease by
facsimile transmission shall promptly deliver a manually executed counterpart,
provided that any failure to do so shall not affect the validity of the
counterpart executed by facsimile transmission.
32. WAIVER OF JURY TRIAL. EACH OF LESSOR AND LESSEE HEREBY WAIVES ANY RIGHT TO
DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY
LESSOR OR LESSEE IN CONNECTION WITH THIS LEASE OR ANY TRANSACTION RELATED
HERETO. LESSEE AND LESSOR ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
Lessee acknowledges that it has read and understood all the provisions of this
Lease, including the waiver of jury trial, and has been advised by counsel as
necessary or appropriate.
WITNESS the due execution hereof with the intent to be legally bound.
WITNESS/ATTEST: MEDIA SCIENCES, INC., LESSEE
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx (SEAL)
------------------------ ------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxx
------------------------ ------------------------------
Title: Vice President and Controller Title: President
------------------------ ------------------------------
Federal Tax I.D. # 00-0000000
Accepted at Berwyn, Pennsylvania by:
PNC LEASING, LLC, LESSOR
By: _____________________________(SEAL)
Name:_________________________________
Title: _______________________________
Guaranty and Suretyship Agreement
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and entered
into as of this _________ day of ________________________, 2005, by MEDIA
SCIENCES INTERNATIONAL, INC. (the "Guarantor"), with an address at 0 Xxxxxxxx
Xx., Xxxxxxx, XX 00000 in consideration of all rents and other sums reserved in
any and all leases between PNC LEASING, LLC (the "Lessor"), with an address at
0000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxx, XX 00000, and MEDIA SCIENCES, INC. (the
"Lessee"), and all schedules and supplements thereto, whether now or hereafter
made a part of said leases (collectively referred to as the "Lease"), the
receipt and sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby guarantees, and becomes surety
for, the prompt payment and performance of all rents and other sums reserved in
the Lease, all of Lessee's other obligations under the Lease, and all other
loans, advances, debts, liabilities , obligations, covenants and duties owing by
the Lessee to the Lessor or to any other direct or indirect subsidiary of The
PNC Financial Services Group, Inc., of any kind or nature, present or future
(including any interest accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to the Lessee, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding),
whether or not evidenced by any note, guaranty or other instrument, whether
arising under any agreement, instrument or document, whether or not for the
payment of money, whether arising by reason of an extension of credit, opening
of a letter of credit, loan, equipment lease or guarantee, under any interest or
currency swap, future, option or other interest rate protection or similar
agreement, or in any other manner, whether arising out of overdrafts on deposit
or other accounts or electronic funds transfers (whether through automated
clearing houses or otherwise) or out of the Lessor's 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 Lessor incurred in the documentation, negotiation, modification,
enforcement, collection or otherwise in connection with any of the foregoing,
including reasonable attorneys' fees and expenses (hereinafter referred to
collectively as the "Obligations"). If the Lessee defaults under any such
Obligations, the Guarantor will pay the amount due to the Lessor.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of
collection and the Lessor shall not be required, as a condition of the
Guarantor's liability, to make any demand upon or to pursue any of its rights
against the Lessee, or to pursue any rights which may be available to it with
respect to any other person who may be liable for the payment of the
Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty and will
remain in full force and effect until all of the Obligations have been
indefeasibly paid in full, and the Lessor has terminated this Guaranty. This
Guaranty will remain in full force and effect even if there are no amounts
outstanding under the Obligations at a particular time or from time to time.
This Guaranty will not be affected by any surrender, exchange, acceptance,
compromise or release by the Lessor of any other party, or any other guaranty or
any security held by it for any of the Obligations, by any failure of the Lessor
to take any steps to perfect or maintain its lien or security interest in or to
preserve its rights to any security or other collateral for any of the
Obligations or any guaranty, or by any irregularity, unenforceability or
invalidity of any of the Obligations or any part thereof or any security or
other guaranty thereof. The Guarantor's obligations hereunder shall not be
affected, modified or impaired by any counterclaim, set-off, deduction or
defense based upon any claim the Guarantor may have against the Lessee or the
Lessor, except payment or performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to the
Lessee from time to time, notice of default, diligence, presentment, notice of
dishonor, protest, demand for payment, and any defense based upon the Lessor's
failure to comply with the notice requirements of the applicable version of
Uniform Commercial Code ss. 9-504 are hereby waived. The Guarantor waives all
defenses based on suretyship or impairment of collateral.
The Lessor at any time and from time to time, without notice to or the consent
of the Guarantor, and without impairing or releasing, discharging or modifying
the Guarantor's liabilities hereunder, may (a) change the manner, place, time or
terms of payment or performance of or interest rates on, or other terms relating
to, any of the Obligations; (b) renew, substitute, modify, amend or alter, or
grant consents or waivers relating to any of the Obligations, any other
guaranties, or any security for any Obligations or guaranties; (c) apply any and
all payments by whomever paid or however realized including any proceeds of any
collateral, to any Obligations of the Lessee in such order, manner and amount as
the Lessor may determine in its sole discretion; (d) settle, compromise or deal
with any other person, including the Lessee or the Guarantor, with respect to
any Obligations in such manner as the Lessor deems appropriate in its sole
discretion; (e) substitute, exchange or release any security or guaranty; or (f)
take such actions and exercise such remedies hereunder as provided herein.
3. Repayments or Recovery from the Lessor. If any demand is made at any time
upon the Lessor for the repayment or recovery of any amount received by it in
payment or on account of any of the Obligations and if the Lessor repays all or
any part of such amount by reason of any judgment, decree or order of any court
or administrative body or by reason of any settlement or compromise of any such
demand, the Guarantor 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 the Lessor. The provisions of this section will be and remain
effective notwithstanding any contrary action which may have been taken by the
Guarantor in reliance upon such payment, and
any such contrary action so taken will be without prejudice to the Lessor's
rights hereunder and will be deemed to have been conditioned upon such payment
having become final and irrevocable.
4. Financial Statements. During the term of this Guaranty and any extensions or
renewals hereof, the Guarantor will furnish to the Lessor:
(a) Within 45 days after the end of each of the first three quarterly
periods of the Guarantor's fiscal year, a balance sheet and statement of income
of the Guarantor (the "Financial Statements") 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 the Lessor may request,
certified as true, complete and correct by an authorized officer of the
Guarantor;
(b) As soon as practicable, but in any event within 120 days after the
end of each fiscal year of undersigned, a copy of the Guarantor's annual audited
Financial Statements, certified without qualification by an independent
certified public accountant of recognized standing;
(c) In a timely manner such financial statements, reports and other
information as the Guarantor shall send from time to time to its stockholders
and/or file with the Securities and Exchange Commission and/or other materials
which the Lessor shall reasonably request.
5. Enforceability of Obligations. No modification, limitation or discharge of
the Obligations arising out of or by virtue of any bankruptcy, reorganization or
similar proceeding for relief of debtors under federal or state law will affect,
modify, limit or discharge the Guarantor's liability in any manner whatsoever
and this Guaranty will remain and continue in full force and effect and will be
enforceable against the Guarantor to the same extent and with the same force and
effect as if any such proceeding had not been instituted. The Guarantor waives
all rights and benefits which might accrue to it by reason of any such
proceeding and will be liable to the full extent hereunder, irrespective of any
modification, limitation or discharge of the liability of the Lessee that may
result from any such proceeding.
6. Events of Default. The occurrence of any of the following shall be an "Event
of Default" hereunder: (i) any Event of Default (as defined in any of the
Obligations); (ii) any default under any of the Obligations that does not have a
defined set of "Events of Default" and the lapse of any notice or cure period
provided in such Obligations with respect to such default; (iii) demand by the
Lessor under any of the Obligations that have a demand feature; (iv) the
Guarantor's failure to perform any of its obligations hereunder; (v) the
falsity, inaccuracy or material breach by the Guarantor of any written warranty,
representation or statement made or furnished t o the Lessor by or on behalf of
the Guarantor; or (vi) the termination or attempted termination of this
Guaranty. Upon the occurrence of any Event of Default, (a) the Guarantor shall
pay to the Lessor the amount of the Obligations; or (b) on demand of the Lessor,
the Guarantor shall immediately deposit with the Lessor, in U.S. dollars, all
amounts due or to become due under the Obligations, and the Lessor may at any
time use such funds to repay the Obligations; or (c) the Lessor in its
discretion may exercise with respect to any collateral any one or more of the
rights and remedies provided a secured party under the applicable version of the
Uniform Commercial Code; or (d) the Lessor in its discretion may exercise from
time to time any other rights and remedies available to it at law, in equity or
otherwise.
7. Right of Setoff. In addition to all liens upon and rights of setoff against
the Guarantor's money, securities or other property given to the Lessor by law,
the Lessor shall have, with respect to the Guarantor's obligations to the Lessor
under this Guaranty and to the extent permitted by law, a contractual possessory
security interest in and a contractual right of setoff against, and the
Guarantor hereby assigns, conveys, delivers, pledges and transfers to the Lessor
all of the Guarantor's right, title and interest in and to, all of the
Guarantor's deposits, moneys, securities and other property now or hereafter in
the possession of or on deposit with, or in transit to, the Lessor or any other
direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether
held in a general or special account or deposit, whether held jointly with
someone else, or whether held for safekeeping or otherwise, excluding, however,
all XXX, Xxxxx, and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the Guarantor. Every
such right of setoff shall be deemed to have been exercised immediately upon the
occurrence of an Event of Default hereunder without any action of the Lessor,
although the Lessor may enter such setoff on its books and records at a later
time.
8. Collateral. This Guaranty is secured by the property described in any
collateral security documents which the Guarantor executes and delivers to the
Lessor and by such other collateral as previously may have been or may in the
future be granted to the Lessor to secure any obligations of the Guarantor to
the Lessor.
9. Costs. To the extent that the Lessor incurs any costs or expenses in
protecting or enforcing its rights under the Obligations or this Guaranty,
including reasonable attorneys' fees and the costs and expenses of litigation,
such costs and expenses will be due on demand, will be included in the
Obligations and will bear interest from the incurring or payment thereof at the
rate of fifteen percent (15%) per annum or, if less, the highest rate permitted
by applicable law.
10. Postponement of Subrogation. Until the Obligations are indefeasibly paid in
full, the Guarantor postpones and subordinates in favor of the Lessor any and
all rights which the Guarantor may have to (a) assert any claim against the
Lessee based on subrogation rights with respect to payments made hereunder, and
(b) any realization on any property of the Lessee, including participation in
any marshalling of the Lessee's assets.
11. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and
a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Lessor and the Guarantor set forth
above or to such other address as one may give to the other in writing for such
purpose.
12. Preservation of Rights. No delay or omission on the Lessor's part to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the
Lessor's action or inaction impair any such right or power. The Lessor's rights
and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Lessor may have under other agreements, at law or in equity.
The Lessor may proceed in any order against the Lessee, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
13. Illegality. In case any one or more of the provisions contained in this
Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
14. Changes in Writing. No modification, amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom will be
effective unless made in a writing signed by the Lessor, 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 Guarantor in any case will entitle
the Guarantor to any other or further notice or demand in the same, similar or
other circumstance.
15. Entire Agreement. This Guaranty (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, between the
Guarantor and the Lessor with respect to the subject matter hereof; provided,
however, that this Guaranty is in addition to, and not in substitution for, any
other guarantees from the Guarantor to the Lessor.
16. Successors and Assigns. This Guaranty will be binding upon and inure to the
benefit of the Guarantor and the Lessor and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Guarantor
may not assign this Guaranty in whole or in part without the Lessor's prior
written consent and the Lessor at any time may assign this Guaranty in whole or
in part.
17. Interpretation. In this Guaranty, unless the Lessor and the Guarantor
otherwise agree in writing, the singular includes the plural and the plural the
singular; references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute referred to; 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";
and references to sections or exhibits are to those 1of this Guaranty unless
otherwise indicated. Section headings in this Guaranty are included for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose. If this Guaranty is executed by more than one party as
Guarantor, the obligations of such persons or entities will be joint and
several.
18. Indemnity. The Guarantor agrees to indemnify each of the Lessor, its
directors, officers and employees and each legal entity, if any, who controls
the Lessor (the "Indemnified Parties") and to hold each Indemnified Party
harmless from and against any and all claims, damages, losses, liabilities and
expenses (including all fees and charges of internal or external counsel with
whom any Indemnified Party may consult and all expenses of litigation or
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party as a result of the execution of or
performance under this Guaranty; provided, however, that the foregoing indemnity
agreement shall not apply to claims, damages, losses, liabilities and expenses
solely attributable to an Indemnified Party's gross negligence or willful
misconduct. The indemnity agreement contained in this Section shall survive the
termination of this Guaranty. The Guarantor may participate at its expense in
the defense of any such claim.
19. Governing Law and Jurisdiction. This Guaranty has been delivered to and
accepted by the Lessor and will be deemed to be made in the State where the
Lessor's office indicated above is located. THIS GUARANTY WILL BE INTERPRETED
AND THE RIGHTS AND LIABILITIES OF THE LESSOR AND THE GUARANTOR DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE LESSOR'S OFFICE INDICATED ABOVE
IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Guarantor hereby
irrevocably consents to the exclusive jurisdiction of any state or federal court
in the county or judicial district where the Lessor's office indicated above is
located; provided that nothing contained in this Guaranty will prevent the
Lessor from bringing any action, enforcing any award or judgment or exercising
any rights against the Guarantor individually, against any security or against
any property o f the Guarantor within any other county, state or other foreign
or domestic jurisdiction. The Guarantor acknowledges and agrees that the venue
provided above is the most convenient forum for both the Lessor and the
Guarantor. The Guarantor waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this Guaranty.
20. Equal Credit Opportunity Act. If the Guarantor is not an "applicant for
credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974
("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to
provide credit support for the Obligations, and (ii) the Guarantor was not
required to execute this Guaranty in violation of Section 202.7(d) of the ECOA.
21. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT THE
GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELAT ING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN CONNECTION WITH
THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE
GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNT ARY.
The Guarantor acknowledges that it has read and understood all the provisions of
this Guaranty, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
WITNESS / ATTEST: MEDIA SCIENCES INTERNATIONAL, INC.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -------------------------------
(SEAL)
Print Name: Xxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
--------------------- -----------------------
Title: Vice President and Controller Title: President
-------------------------------- ----------------------------
(Include title only if an officer of
entity signing to the right)
EIN #: ___________________________
Supplement to Master Lease Agreement
(First Amendment Tax Lease)
Lessee: MEDIA SCIENCES, INC.
Supplement Date: July 26, 2005
Master Lease Agreement No.: 03737
Master Lease Agreement Date: July 26, 2005
1. SUPPLEMENT. This Supplement to Master Lease Agreement ("Supplement") is
hereby made a part of the Lease referenced above between the
undersigned Lessor and Lessee. All terms and conditions of said Lease
are incorporated herein by reference.
2. EQUIPMENT. The Equipment which is subject to the Lease is or will be
described on one or more Schedule(s) of Leased Equipment which make
reference to the Lease and this 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 thereof.
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 the applicable Schedule and shall not be removed without
Lessor's prior written consent.
5. INTERIM RENT TERM. The interim rent term of the Lease as respects any
Equipment described in the applicable Schedule shall commence on the
earlier of (a) the date of Lessor's first advance of funds for the
purchase of such Equipment and (b) the date of Lessee's acceptance of
such Equipment, and shall terminate on the day before the commencement
of the base lease term for such Schedule.
6. INTERIM RENT. During the interim rent term, Lessee shall pay Lessor as
additional Rent ("Interim Rent") for each Item of Equipment, an amount
equal to the product of Lessor's capitalized cost for such Item times
the number of days in the interim rent term times the Daily Lease Rate
Factor provided for in the applicable Schedule. Interim Rent shall be
due and payable monthly in arrears during the interim rent term.
7. PROGRESS PAYMENT TERM. The progress payment term of the Lease as
respects any Equipment described in the applicable Schedule, and which
is covered by a Progress Payment Addendum to the Lease, shall commence
on the earlier of (a) the date of Lessor's first advance of funds for
the purchase of such Equipment and (b) the date of Lessee's acceptance
of such Equipment, and shall terminate on the day before the
commencement of the base lease term for such Schedule.
8. PROGRESS PAYMENTS: Progress Payments shall be calculated at the Bank's
Prime Rate of interest plus or minus the Progress Payment Factor, if
any, provided for in the applicable Schedule, calculated on the basis
of actual days elapsed within a year consisting of 360 days 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
("Progress Payments"), plus applicable taxes, if any. Progress
Payments shall be due and payable monthly during the progress payment
term. As used herein, "Prime Rate" shall mean the rate publicly
announced by the Bank from time to time as its prime rate. The Prime
Rate is not tied to any external rate or index and does not
necessarily reflect the lowest rate of interest actually charged by
the Bank to any particular class or category of customers. If and when
the Prime Rate changes, the Progress Payment Factor and Progress
Payment amounts will change automatically without notice to Lessee,
effective on the date of any such change.
9. LEASE TERM. The base term of the Lease as respects the Equipment is set
forth in the applicable Schedule. Lessee shall not have the option to
terminate the Lease prior to the expiration of the base term. Provided
that no Event of Default exists under the Lease, Lessor may, but shall
not be obligated to, evaluate requests for such early termination in
Lessor's sole discretion. Such evaluations, if made, will be made based
upon the Termination Value Table attached to the applicable Schedule.
10. RENT. The Lessee agrees to pay basic rent for the Equipment in the
amount and on the dates set forth in the applicable Schedule, plus
applicable taxes, if any.
11. 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 in paragraph 10 of the applicable Schedule; (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 (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 did not
place any Item of Equipment in service more than three months prior to
the date when Lessor acquired title to such Item; (J) Lessee did not
enter into any written agreement that was effective on or before
September 11, 2001, in which Lessee agreed to acquire any Item of
Equipment; and (K) Lessee will maintain sufficient records to verify
all of the foregoing representations, 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 (i) 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 11 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 11, 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 11 shall continue in full
force and effect notwithstanding the expiration or other termination of
this Lease.
12. END OF TERM OPTIONS.
(a) Provided that no Event of Default will have occurred and be
continuing, on the expiration of the base lease term under any
applicable Schedule, 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 such Schedule. On the last day of the
base lease term under any applicable Schedule, the Lessee shall pay to
the Lessor an amount equal to the greater of (i) the fair market value
of the Equipment described in the applicable Schedule determined in
accordance with the provisions of subparagraph (b), or (ii) the percent
of the Equipment Cost stated in such Schedule. 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 under any applicable Schedule. 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 (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 subparagraph (a), "fair market value" of the Equipment
described in the applicable Schedule shall be the value of the
Equipment as of the last day of the base term of the Lease, as
determined by an appraiser selected by the Lessor and retained at
Lessee's expense. For purposes of determining the fair market value,
the appraiser shall be instructed to assume that the Equipment is in
the condition required by the terms of the Lease. 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 subparagraph (a), then (i) Lessee shall continue to pay
rent for the remainder of the base lease term in the amount set forth
in the applicable Schedule, and (ii) this Schedule shall automatically
be extended for an additional term (the "Renewal Term") as stated in
the applicable Schedule, 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 this paragraph 10, or (ii) return the Equipment to
the Lessor in accordance with paragraph 11. Lessee shall notify Lessor
of its election to either purchase or return the Equipment not less
than sixty (60) days prior to the expiration of the Renewal Term. If
Lessee fails to so notify Lessor of its election, this Lease will be
deemed extended on a month-to-month basis on the same terms and
conditions until Lessee provides Lessor with written notice of its
election to terminate the Lease not less than sixty (60) days from the
date of such notice.
13. RETURN OF EQUIPMENT. Upon the expiration or earlier termination of
this Lease, Lessee shall return the Equipment described in the
applicable Schedule, 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 to the designated location at the end of the base lease
term or any renewal thereof under the applicable Schedule, and does not
exercise the renewal or purchase options provided for herein (if any),
then, at Lessor's option, the Lease as it relates to the applicable
Schedule will be deemed extended on a month-to-month basis for a
minimum renewal term of three (3) months, with rent due on the day of
each month applicable and at the rate applicable to the base lease or
renewal term just ended.
14. FAIR MARKET VALUE AND ESTIMATED USEFUL LIFE. In all circumstances,
except where Lessee has elected to purchase the Equipment pursuant to
paragraph 12(a), fair market value, fair market rental value and
estimated useful life of the Equipment shall be determined by an
appraiser selected by the Lessor. 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. For purposes of
determining the fair market value, the appraiser shall be instructed
to assume that the Equipment is in the condition required by the terms
of the Lease. The appraiser's decision shall be binding on the
parties. If Lessee has given Lessor notice of Lessee's intention to
exercise its purchase or renewal option, and the Lessor has 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.
The cost of the appraisal shall be borne by the Lessee.
15. MARKING OF EQUIPMENT. At Lessor's request, Lessee shall xxxx 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.
16. 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: $5,000,000. (c) Fire-legal
liability-custody, care or control, each occurrence:
$100,000.
Property Coverage:
(a) All risk of physical loss; Equipment must be
insured for at least the total original cost.
17. COVENANTS. By executing and delivering to Lessor the Lessee Acceptance
Certificate included within each applicable Schedule, Lessee warrants,
covenants and agrees that (a) Lessee has received all of the Equipment
described in such Schedule at the location described in such Schedule;
(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
related Equipment 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 related Equipment against any
manufacturer or seller of such Equipment or any part thereof.
18. ADDITIONAL PROVISIONS. (a) Each applicable Schedule is incorporated
herein by reference; and (b) Lessee grants Lessor the right to insert
the Equipment description and payment dates and terms in each
applicable Schedule at the time of commencement of the base lease term.
19. VEHICLE TITLES . This paragraph applies to all Items of Equipment
which are subject to the motor vehicle titling and registration laws
of any State ("Vehicles"), and in the event of any conflict between
the provisions of this paragraph and the provisions of the Lease or
any document executed and delivered under the Lease, the provisions of
this paragraph shall control. For purposes of administrative and
operational convenience, among other reasons, Lessor and Lessee agree
that all Vehicles shall be titled and registered in Lessee's name,
naming Lessor as first lienholder, pursuant to the applicable motor
vehicle titling and registration laws. The original certificate of
title for each Vehicle, complying with these requirements, shall be
obtained at Lessee's expense and delivered by Lessee to Lessor, and
thereafter shall be held by Lessor for so long as such Vehicle is
subject to the Lease, in order to further confirm and perfect Lessor's
interest in such Vehicle. Notwithstanding that certificates of title,
registrations or other indicia of ownership for any Vehicles may be in
Lessee's name with Lessor named as lienholder pursuant to this
paragraph, Lessor and Lessee agree that equitable and beneficial
ownership of each Vehicle (including ownership for all income tax
purposes) shall be vested in Lessor and to the extent that Lessee may
be deemed to hold nominal title to any Vehicle, such nominal title
shall be record title only and shall be deemed to be held by Lessee as
agent for Lessor and solely for Lessor's use and benefit for so long
as such Vehicle is subject to the Lease. At any time following the
occurrence of an Event of Default or event which, with the passage of
time or the giving of notice or both, would constitute an Event of
Default, Lessor may request that Lessee execute such instruments and
documents as are necessary to transfer record title to any Vehicle
into the name of Lessor or Lessor's nominee. If Lessee does not
promptly comply with any such transfer request by Lessor, then Lessor
may do so in Lessee's name and stead, and for this purpose Lessee does
hereby irrevocably appoint and constitute Lessor as Lessee's true and
lawful attorney in fact, coupled with an interest, with full power to
take the actions described in the immediately preceding sentence.
WITNESS the due execution hereof with the intent to be legally bound.
Lessor: PNC LEASING, LLC Lessee: MEDIA SCIENCES, INC.
By: By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- ------------------------------
Title: Title: President
-------------------------------- ---------------------------
Assignment of Equipment
Purchase Agreements
THIS ASSIGNMENT OF EQUIPMENT PURCHASE AGREEMENTS ("Assignment" ) is made this
26th day of July, 2005 by and between MEDIA SCIENCES, INC. ("Assignor"), and PNC
LEASING, LLC ("Assignee").
RECITALS:
Assignor has entered into certain Equipment Purchase Agreements ("Purchase
Agreements") with the suppliers or manufacturers ("Vendors") of certain
equipment, pursuant to which Vendors agreed to sell to Assignor the equipment
described in the Purchase Agreements ("Equipment") upon the terms and conditions
set forth in the Purchase Agreements. Assignor and Assignee have agreed that
Assignee will purchase the Equipment directly from Vendors and will thereupon
leas e the same to Assignor pursuant to a certain Master Lease Agreement
("Lease") entered into between Assignor and Assignee dated July 26, 2005. In
order for Assignee to purchase the Equipment from Vendors, it will be necessary
for Assignor to assign its right, title and interest in and to the Purchase
Agreements to Assignee.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants
and agreements hereinafter set forth, and with the intent to be legally bound
here by, Assignor and Assignee hereby agree as follows:
1. Assignor hereby sells, assigns, transfers, and sets over unto Assignee
all of Assignor's right, title and interest under, in, to and in
respect to the Purchase Agreements, including (without limitation) the
right (i) to accept and (ii) to take title to the Equipment and be
named as "buyer" in any documents of title, bills of sale, invoices, or
similar documents to be delivered by Vendors in respect of the
Equipment under the respective Purchase Agreements.
2. If any Vendor requires the making of any down payments, progress
payments or other advances, these shall be made by Assignor, unless
otherwise agreed to in writing by Assignee and Assignor. Any such
payments or advances shall be reimbursed to Assignor when and if
Assignee is required to make payment of the purchase price for the
related Equipment pursuant to the Lease including all schedules and
attachments thereto.
3. Assignee hereby accepts this Assignment of Assignor's right, title and
interest in and to the Purchase Agreements, and by this acceptance,
agrees to (a) purchase the Equipment directly from Vendors and (b) pay
the balance of all payments due Vendors, at the time Assignee is
required to make payment of the purchase price to Vendors, pursuant to
the Purchase Agreements; provided, that there has been satisfactory
compliance with the terms and conditions contained in the Lease
relating to the purchase by Assignee of the Equipment; and provided
further, that the Lease is in full force and effect and no default
thereunder has occurred.
4. Notwithstanding the foregoing Assignment, Assignee hereby designates
Assignor to perform all obligations and duties of Assignee under the
Purchase Agreement except (i) the purchase of the Equipment and (ii)
the payment of monies due Vendors under the Purchase Agreements as of
the time of the completion of delivery and acceptance of the
Equipment; provided, however, that Assignor may not enter into any
field orders, change orders, or other amendments, modifications or
supplements to any Purchase Agreement without the written consent or
countersignature of Assignee noted thereon, if such field orders,
amendments or modifications would (i) change the number of items of
Equipment which Assignee is obligated to purchase under any Purchase
Agreement; (ii) increase the aggregate purchase price of the Equipment
to an amount in excess of $1,000,000.00; (iii) postpone beyond April
6, 2006 the time for delivery of the Equipment and successful
completion of the initial tests prior to acceptance of the Equipment
pursuant to the Purchase Agreements; (iv) change or modify in any
material way the performance standards or other requirements for the
Equipment referred to in any Purchase Agreement or related documents;
or (v) result in any rescission, cancellation or termination of any
Purchase Agreement. Assignor agrees to such designation and agrees to
perform such obligations. The obligations of Assignor assumed hereby
shall continue until termination of the Lease or until Assignee
declares a default thereunder.
5. Notwithstanding any contrary provision hereof, (a) Assignor shall at
all times remain liable to Vendors under the Purchase Agreements to
perform all of the duties and obligations of Buyer thereunder to the
same extent as if this Assignment had not been executed; (b) the
exercise by Assignee of any rights assigned hereunder shall not
release Assignor from any of its duties or obligations to any Vendor
under any Purchase Agreement except to the extent that such exercise
by Assignee shall constitute performance of such duties and
obligations, and (c) Assignee shall have no obligation or liability
under any Purchase Agreement by reason of or arising out of this
Agreement or be obligated to perform any obligation or duty of
Assignor under the Purchase Agreements or to make any payments (other
than the obligation of Assignee to pay the purchase price for the
Equipment) or to make any inquiry as to the sufficiency of any payment
received by any Vendor or to present or file any claim or to take any
other action to collect or enforce any claims for any payment assigned
hereunder.
6. If Assignor notifies Assignee that Assignor has determined not to
lease any of the Equipment from Assignee (whether because of breach of
contract on the part of Vendor or otherwise), Assignee hereby
automatically reassigns to Assignor, without recourse and without
representation or warranty of any kind whatsoever, the appropriate
contract rights and Purchase Agreements and releases Assignee's
interests therein. Assignee shall thereupon have no further
obligations, responsibilities or liabilities in connection with said
contract rights, Purchase Agreements and/or Equipment, and Assignor
hereby agrees to indemnify Assignee and hold Assignee harmless from
and against any and all claims, demands, actions or proceedings
arising out of or in any way relating to said contract rights,
Purchase Agreements and/or the Equipment, by whomsoever asserted, and
any and all losses, damage, obligations, liabilities, costs or
expenses (including attorneys' fees) suffered, paid or incurred by
Assignee in connection therewith.
7. Assignor does hereby constitute, effective as of the time Assignee has
declared the Lease to be in default, Assignee, its successors and
assigns, Assignor's true and lawful attorney, irrevocably and coupled
with an interest, with full power in the name of Assignor or otherwise,
to ask, require, demand, receive, compound and give acquittance for any
and all monies and claims for money due and to become due under, or
arise out of, any Purchase Agreement, to endorse any checks or other
instruments or orders in connection therewith, or to file any claim or
to take any action or institute any proceedings which Assignee may deem
to be reasonably necessary or advisable.
8. Assignor represents and warrants that the Purchase Agreements are, or
will be, in full force and effect and enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of
creditors' rights, and that Assignor is not, or will not be, in default
thereunder. Assignor further represents and warrants that Assignor has
not assigned or pledged any interest in any Purchase Agreement to any
entities o r individuals other than Assignee, and agrees that it will
not assign or pledge, so long as this Assignment shall remain in
effect, the whole or any part of the rights hereby assigned to any
entity or individual other than Assignee.
9. Assignor agrees that at any time and from time to time, upon Assignee's
written request, Assignor shall promptly and duly execute and deliver
any and all such further instruments and documents and take such
further action as Assignee may reasonably request in order that
Assignee obtain the full benefits of this Agreement.
10. All notices, requests, demands or other communications to or upon
Assignee and Assignor shall be made as provided for in the Lease.
11. Neither this Assignment nor any provision hereof may be changed,
waived, discharged or terminated other than by an instrument in writing
signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
12. This Assignment shall be binding upon Assignor and its successors and
assigns and shall be binding upon and inure to the benefit of Assignee
and its successors and assigns.
13. This Assignment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed with the intent to be legally bound.
Assignee: PNC LEASING, LLC Assignor: MEDIA SCIENCES, INC.
By: By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- ------------------------------
Title: Title: President
-------------------------------- ----------------------------
-2-
Progress Payment Addendum
THIS PROGRESS PAYMENT ADDENDUM ("Addendum") by and between PNC LEASING,
LLC ("Lessor") and MEDIA SCIENCES, INC. ("Lessee") is made to that certain
Master Lease Agreement No. 03737 dated _____________________ ____________, 2005
("Lease") between Lessor and Lessee.
Preliminary Statement. Lessor and Lessee have entered into the Lease
pursuant to which Lessor shall purchase certain machinery and equipment (the
"Equipment") at the request of Lessee and lease such Equipment to Lessee under
the terms and conditions set forth in the Lease. As a condition to the Lease,
upon the commencement of the base lease term, Lessee is required to execute and
deliver to Lessor a Lessee Acceptance Certificate by wh ich Lessee shall
acknowledge the receipt and unconditional acceptance of the Equipment and
confirm that Lessee unconditionally agrees to be bound to pay to Lessor the full
rent as set forth in the Lease and in each Schedule of Leased Equipment that is
attached to and made a part of the Lease. However, prior to Lessee's delivery of
the final acceptance certificate and the commencement of the base lease term,
Lessee has requested that Lessor make certain progress payments to the vendor or
supplier of the Equipment ("Vendor") (or to reimburse Lessee for progress
payments paid to Vendor by Lessee), as called for under the terms of existing
invoices, purchase orders or purchase agreements (true and complete copies of
which have been delivered to Lessor) between Lessee and Vendor ("Purchase
Orders"). Lessor has agreed to advance the progress payments to Vendor, or
reimburse Lessee, upon the terms hereafter set forth:
1. Payment of Installment Purchase Price of the Equipment by Lessor.
Lessor shall pay to Vendor, or reimburse Lessee, the purchase price of the
Equipment in accordance with a schedule of payments agreed to between Lessee and
Vendor or as set forth in the Purchase Orders, which purchase price shall not
exceed $1,000,000.00 in the aggregate. From time to time, 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 by Vendor. All risk of loss or destruction of the
Equipment shall be the sole responsibility of Lessee. All payments made by
Lessor to Vendor or to Lessee hereunder shall bear interest from the date
advanced at an annual interest rate equal to the Prime Rate plus one percentage
point (1%), calculated on the basis of actual days elapsed within a year
consisting of 360 days. As used herein, "Prime Rate" shall mean the rate
publicly announced by PNC Bank, National Association from time to time as its
prime rate. The Prime Rate is not tied to any external rate or index and does
not necessarily reflect the lowest rate of interest actually charged by the Bank
to any particular class or category of customers. If and when the Prime Rate
changes, the rate of interest provided for above will change automatic ally
without notice to Lessee, effective on the date of any such change. In no event
will the rate of interest hereunder exceed the maximum rate allowed by law.
Accrued interest shall become due and payable monthly by Lessee from the date of
the first advance of funds to the basic term commencement date of the Lease.
Lessor shall not be obligated to guarantee payment to any vendor. Lessee agrees
that Lessor will not have to advance funds (i) in an amount higher than that set
forth in any document ancillary to the Lease, (ii) beyond the date set forth in
any document ancillary to the Lease, (iii) if the Equipment is not as
represented to Lessor, such as make, model and condition and in accordance with
specifications presented by Lessee, (iv) following an Event of Default, (v) if
the Equipment is subject to any foreclosure or forfeiture proceeding, execution
or attachment, (vi) if there is any material adverse change in the business,
assets, operations, financial condition or results of operations of Lessee or
any guarantor, (vii) if any representation or warranty made by Lessee or any
guarantor is false, erroneous or misleading in any material respect. The making
of any advance by Lessor under this paragraph 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 when
the base lease term begins.
2. Reimbursement of Lessor by Lessee Under Certain Conditions . If an
Event of Default shall occur under the Lease, or if Lessee has not given its
final acceptance of the Equipment and the base term of the Lease commenced by
April 6, 2006, then all advances made, together with accrued interest and other
amounts due, shall be immediately due and payable without demand or notice of
any kind. Lessee shall repay to Lessor in full all amounts theretofore paid by
Lessor to Vendor and/or Lessee in payment of the purchase price of the Equipment
together with interest on all overdue sums calculated at an annual rate of
interest equal to the delinquent rent penalty set forth in the Lease. Upon the
receipt of such payment, Lessor shall assign to Lessee all of Lessor's right,
title and interest in the Equipment, any open Purchase Orders and in all claims
against Vendor, all without representation or warranty.
3. Lessee's Certification. Lessee certifies that it has performed and
complied with all agreements and conditions of the Lease and that no Event of
Default has occurred or exists under the Lease.
4. Miscellaneous . Any capitalized terms as used in this Addendum which
are not defined herein, shall have the meanings set forth in the Lease.
IN WITNESS WHEREOF, this Addendum is executed this 26th day of July,
2005.
Lessor: PNC LEASING, LLC Lessee: MEDIA SCIENCES, INC.
By: By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- ---------------------------
Title: Title: President
-------------------------------- ------------------------
