EXHIBIT 10
Loan Agreement
THIS LOAN AGREEMENT (the "Agreement"), is entered into as of December 16, 2004,
between Media Sciences, Inc., a New Jersey corporation, and Cadapult Graphic
Systems, Inc., a New Jersey corporation (collectively, the "Borrower"), with an
address at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, and PNC BANK, NATIONAL
ASSOCIATION (the "Bank"), with an address at Xxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000.
The Borrower and the Bank, with the intent to be legally bound, agree
as follows:
1. Loan. The Bank has made or may make one or more loans (collectively,
the "Loan") to the Borrower subject to the terms and conditions and in reliance
upon the representations and warranties of the Borrower set forth in this
Agreement. The Loan is or will be evidenced by a promissory note or notes of the
Borrower and all renewals, extensions, amendments and restatements thereof (if
one or more, collectively, the "Note") acceptable to the Bank, which shall set
forth the interest rate, repayment and other provisions, the terms of which are
incorporated into this Agreement by reference.
The credit facility covered by this Agreement is a revolving line of
credit under which the Borrower may request and the Bank, subject to the terms
and conditions of this Agreement and the Loan Documents (as defined below),
will: (i) accept and discount drafts drawn by the Borrower on the Bank (each a
"Bankers' Acceptance") subject to an aggregate sub-limit on Bankers' Acceptances
of $500,000.00, and (ii) make direct advances, from time to time until the
Expiration Date, in the aggregate amount at any time outstanding not to exceed
$3,000,000.00 (the "Line of Credit"). The "Expiration Date" means November 30,
2006, or such later date as may be designated by the Bank by written notice to
the Borrower. The Borrower acknowledges and agrees that in no event will the
Bank be under any obligation to extend or renew the Line of Credit beyond the
Expiration Date.
(a) Bankers' Acceptances.
(i) Each request for a Bankers' Acceptance must be accompanied by a certificate
signed by the Borrower in form and substance satisfactory to the Bank. The
availability of Bankers' Acceptances and direct borrowings under the Line of
Credit shall be reduced by the face amount of each Bankers' Acceptance issued
and outstanding (whether or not honored). Unless approved by the Bank, each
Bankers' Acceptance shall have a maturity date of not more than one hundred and
eighty (180) days from the date of its creation and, in no event, beyond the
Expiration Date.
(ii) The Bank shall discount each Bankers' Acceptance by deducting from the face
amount of the draft: (a) a discount determined by applying the Bank's Discount
Rate (as hereinafter defined) to such face amount for the period from acceptance
to maturity; and (b) an acceptance commission equal to two hundred twenty five
(225) basis points (2.25%) of the face amount of such draft for the period from
acceptance to maturity; both calculated on the basis of a year of three hundred
sixty (360) days and shall make the net amount available to the Borrower by
crediting the Borrower's demand deposit account with the Bank. The Borrower
agrees to immediately repay the face amount of the Bankers' Acceptance when it
is honored by the Bank. "Discount Rate" means the Bank's prevailing discount
rate for bankers' acceptances having face amounts and maturities comparable to
those of the draft to be discounted, as determined by the Bank on the date of
discount.
(iii) Neither the Bank nor any of its directors, officers, or employees shall be
liable for any action taken or omitted under or in connection with any Bankers'
Acceptance, any draft to which a Bankers' Acceptance relates or any document(s)
relating or pertaining to a Bankers' Acceptance. The Bank shall be entitled to
act (and shall be fully protected against any claim of loss by the Borrower
occasioned by the lack, or claimed lack, of authenticity or authority of the
issuance of any draft or signature thereon, in acting) upon any oral or written
communication or instrument reasonably believed by the Bank to be genuine and
correct and to have been made by a proper person.
(iv) The Borrower further agrees that, in the event that any Bankers'
Acceptance shall not, in the reasonable opinion of the Bank, meet all the
requirements for "eligible" Bankers' Acceptances under Section 13 of the Federal
Reserve Act (the "Act") or any change in the applicable law, the Borrower shall
indemnify the Bank against any loss or expense incurred by the Bank, directly or
indirectly, arising out of such ineligibility including, without limitation, any
cost of maintaining reserves in respect of such Bankers' Acceptance and any loss
or expense resulting from the illiquidity of the market for ineligible bankers'
acceptances. If the Bank sustains or incurs any such costs, expenses or losses,
it shall from time to time notify the Borrower of the amount determined in good
faith by the Bank (which good faith determination shall be conclusive absent
manifest error) to be necessary to indemnify the Bank for such loss or expense.
Such amount shall be due and payable by the Borrower to the Bank on demand.
(b) Direct Borrowings.
(i) Direct borrowings will bear interest at a rate per annum which is
at all times equal to the Prime Rate plus three quarters of one percent (.75%).
Interest will be calculated based on the actual number of days that principal is
outstanding over a year of 360 days. 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 of interest 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 on this Note will change automatically without
notice to the Borrower, effective on the date of any such change. In no event
will the rate of interest hereunder exceed the maximum rate allowed by law.
(ii) A request for advance made by telephone must be promptly confirmed
in writing by such method as the Bank may require. The Borrower authorizes the
Bank to accept telephonic requests for advances, and the Bank shall be entitled
to rely upon the authority of any person providing such instructions. The
Borrower hereby indemnifies and holds the Bank harmless from and against any and
all damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees and expenses) which may arise or be created by the acceptance of
such telephone requests or making such advances. The Bank will enter on its
books and records, which entry when made will be presumed correct, the date and
amount of each advance, as well as the date and amount of each payment made by
the Borrower.
2. Security. The security for repayment of the Loan shall include but
not be limited to the collateral, guaranties and other documents heretofore,
contemporaneously or hereafter executed and delivered to the Bank (the "Security
Documents"), which shall secure repayment of the Loan, the Note and all other
loans, advances, debts, liabilities, obligations, covenants and duties owing by
the Borrower to the Bank 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 Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
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, whether or not (i) evidenced by any note,
guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension
of credit, opening of a letter of credit, loan, equipment lease or guarantee,
(v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, or (vii) arising out of overdrafts on deposit or other accounts or
out of electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Bank to receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account, or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository or other similar arrangements; and any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection and otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses
(hereinafter referred to collectively as the "Obligations"). Unless expressly
provided to the contrary in documentation for any other loan or loans, it is the
express intent of the Bank and the Borrower that all Obligations including those
included in the Loan be cross-collateralized and cross-defaulted, such that
collateral securing any of the Obligations shall secure repayment of all
Obligations and a default under any Obligation shall be a default under all
Obligations.
This Agreement, the Note, the Security Documents and all other
agreements and documents executed and/or delivered pursuant hereto, as each may
be amended, modified, extended or renewed from time to time, are collectively
referred to as the "Loan Documents." Capitalized terms not defined herein shall
have the meanings ascribed to them in the Loan Documents.
3. Representations and Warranties. The Borrower hereby makes the
following representations and warranties, which shall be continuing in nature
and remain in full force and effect until the Obligations are paid in full, and
which shall be true and correct except as otherwise set forth on the Addendum
attached hereto and incorporated herein by reference (the "Addendum"):
3.1. Existence, Power and Authority. If not a natural person,
the Borrower is duly organized, validly existing and in good standing under the
laws of the State of its incorporation or organization and has the power and
authority to own and operate its assets and to conduct its business as now or
proposed to be carried on, and is duly qualified, licensed and in good standing
to do business in all jurisdictions where its ownership of property or the
nature of its business requires such qualification or licensing. The Borrower is
duly authorized to execute and deliver the Loan Documents, all necessary action
to authorize the execution and delivery of the Loan Documents has been properly
taken, and the Borrower is and will continue to be duly authorized to borrow
under this Agreement and to perform all of the other terms and provisions of the
Loan Documents.
3.2. Financial Statements. If the Borrower is not a natural
person, it has delivered or caused to be delivered to the Bank its most recent
balance sheet, income statement and statement of cash flows, or if the Borrower
is a natural person, its personal financial statement and tax returns (as
applicable, the "Historical Financial Statements"). The Historical Financial
Statements are true, complete and accurate in all material respects and fairly
present the financial condition, assets and liabilities, whether accrued,
absolute, contingent or otherwise and the results of the Borrower's operations
for the period specified therein. The Historical Financial Statements have been
prepared in accordance with generally accepted accounting principles ("GAAP")
consistently applied from period to period, subject in the case of interim
statements to normal year-end adjustments and to any comments and notes
acceptable to the Bank in its sole discretion.
3.3. No Material Adverse Change. Since the date of the most
recent Financial Statements (as hereinafter defined), the Borrower has not
suffered any damage, destruction or loss, and no event or condition has occurred
or exists, which has resulted or could result in a material adverse change in
its business, assets, operations, condition (financial or otherwise) or results
of operation.
3.4. Binding Obligations. The Borrower has full power and
authority to enter into the transactions provided for in this Agreement and has
been duly authorized to do so by appropriate action of its Board of Directors if
the Borrower is a corporation, all its general partners if the Borrower is a
partnership or otherwise as may be required by law, charter, other
organizational documents or agreements; and the Loan Documents, when executed
and delivered by the Borrower, will constitute the legal, valid and binding
obligations of the Borrower enforceable in accordance with their terms.
3.5. No Defaults or Violations. There does not exist any Event
of Default under this Agreement or any default or violation by the Borrower of
or under any of the terms, conditions or obligations of: (i) its partnership
agreement if the Borrower is a partnership, its articles or certificate of
incorporation, regulations or bylaws if the Borrower is a corporation or its
other organizational documents as applicable; (ii) any indenture, mortgage, deed
of trust, franchise, permit, contract, agreement, or other instrument to which
it is a party or by which it is bound; or (iii) any law, ordinance, regulation,
ruling, order, injunction, decree, condition or other requirement applicable to
or imposed upon it by any law, the action of any court or any governmental
authority or agency; and the consummation of this Agreement and the transactions
set forth herein will not result in any such default or violation or Event of
Default.
3.6. Title to Assets. The Borrower has good and marketable
title to the assets reflected on the most recent Financial Statements, free and
clear of all liens and encumbrances, except for (i) current taxes and
assessments not yet due and payable, (ii) assets disposed of by the Borrower in
the ordinary course of business since the date of the most recent Financial
Statements, and (iii) those liens or encumbrances, if any, specified on the
Addendum.
3.7. Litigation. There are no actions, suits, proceedings or
governmental investigations pending or, to the knowledge of the Borrower,
threatened against the Borrower, which could result in a material adverse change
in its business, assets, operations, condition (financial or otherwise) or
results of operations and there is no basis known to the Borrower for any
action, suit, proceeding or investigation which could result in such a material
adverse change. All pending and threatened litigation against the Borrower is
listed on the Addendum.
3.8. Tax Returns. The Borrower has filed all returns and
reports that are required to be filed by it in connection with any federal,
state or local tax, duty or charge levied, assessed or imposed upon it or its
property or withheld by it, including income, unemployment, social security and
similar taxes, and all of such taxes have been either paid or adequate reserve
or other provision has been made therefor.
3.9. Employee Benefit Plans. Each employee benefit plan as to
which the Borrower may have any liability complies in all material respects with
all applicable provisions of the Employee Retirement Income Security Act of 1974
(as amended from time to time, "ERISA"), including minimum funding requirements,
and (i) no Prohibited Transaction (as defined under ERISA) has occurred with
respect to any such plan, (ii) no Reportable Event (as defined under Section
4043 of ERISA) has occurred with respect to any such plan which would cause the
Pension Benefit Guaranty Corporation to institute proceedings under Section 4042
of ERISA, (iii) the Borrower has not withdrawn from any such plan or initiated
steps to do so, and (iv) no steps have been taken to terminate any such plan.
3.10. Environmental Matters. The Borrower is in compliance, in
all material respects, with all Environmental Laws (as hereinafter defined),
including, without limitation, all Environmental Laws in jurisdictions in which
the Borrower owns or operates, or has owned or operated, a facility or site,
stores Collateral, arranges or has arranged for disposal or treatment of
hazardous substances, solid waste or other waste, accepts or has accepted for
transport any hazardous substances, solid waste or other wastes or holds or has
held any interest in real property or otherwise. Except as otherwise disclosed
on the Addendum, no litigation or proceeding arising under, relating to or in
connection with any Environmental Law is pending or, to the best of the
Borrower's knowledge, threatened against the Borrower, any real property which
the Borrower holds or has held an interest or any past or present operation of
the Borrower. No release, threatened release or disposal of hazardous waste,
solid waste or other wastes is occurring, or to the best of the Borrower's
knowledge has occurred, on, under or to any real property in which the Borrower
holds or has held any interest or performs or has performed any of its
operations, in violation of any Environmental Law. As used in this Section,
"litigation or proceeding" means any demand, claim notice, suit, suit in equity,
action, administrative action, investigation or inquiry whether brought by a
governmental authority or other person, and "Environmental Laws" means all
provisions of laws, statutes, ordinances, rules, regulations, permits, licenses,
judgments, writs, injunctions, decrees, orders, awards and standards promulgated
by any governmental authority concerning health, safety and protection of, or
regulation of the discharge of substances into, the environment.
3.11. Intellectual Property. The Borrower owns or is licensed
to use all patents, patent rights, trademarks, trade names, service marks,
copyrights, intellectual property, technology, know-how and processes necessary
for the conduct of its business as currently conducted that are material to the
condition (financial or otherwise), business or operations of the Borrower.
3.12. Regulatory Matters. No part of the proceeds of the Loan
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time in
effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors.
3.13. Solvency. As of the date hereof and after giving effect
to the transactions contemplated by the Loan Documents, (i) the aggregate value
of the Borrower's assets will exceed its liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities), (ii) the Borrower will
have sufficient cash flow to enable it to pay its debts as they become due, and
(iii) the Borrower will not have unreasonably small capital for the business in
which it is engaged.
3.14. Disclosure. None of the Loan Documents contains or will
contain any untrue statement of material fact or omits or will omit to state a
material fact necessary in order to make the statements contained in this
Agreement or the Loan Documents not misleading. There is no fact known to the
Borrower which materially adversely affects or, so far as the Borrower can now
foresee, might materially adversely affect the business, assets, operations,
condition (financial or otherwise) or results of operation of the Borrower and
which has not otherwise been fully set forth in this Agreement or in the Loan
Documents.
4. Affirmative Covenants. The Borrower agrees that from the date of
execution of this Agreement until all Obligations have been paid in full and any
commitments of the Bank to the Borrower have been terminated, the Borrower will:
4.1. Books and Records. Maintain books and records in
accordance with GAAP and give representatives of the Bank access thereto at all
reasonable times, including permission to examine, copy and make abstracts from
any of such books and records and such other information as the Bank may from
time to time reasonably request, and the Borrower will make available to the
Bank for examination copies of any reports, statements and returns which the
Borrower may make to or file with any federal, state or local governmental
department, bureau or agency.
4.2. Interim Financial Statements; Certificate of No Default.
See Addendum.
4.3. Annual Financial Statements. See Addendum.
4.4. Payment of Taxes and Other Charges. Pay and discharge
when due all indebtedness and all taxes, assessments, charges, levies and other
liabilities imposed upon the Borrower, its income, profits, property or
business, except those which currently are being contested in good faith by
appropriate proceedings and for which the Borrower shall have set aside adequate
reserves or made other adequate provision with respect thereto acceptable to the
Bank in its sole discretion.
4.5. Maintenance of Existence, Operation and Assets. Do all
things necessary to (i) maintain, renew and keep in full force and effect its
organizational existence and all rights, permits and franchises necessary to
enable it to continue its business as currently conducted; (ii) continue in
operation in substantially the same manner as at present; (iii) keep its
properties in good operating condition and repair; and (iv) make all necessary
and proper repairs, renewals, replacements, additions and improvements thereto.
4.6. Insurance. Maintain, with financially sound and reputable
insurers, insurance with respect to its property and business against such
casualties and contingencies, of such types and in such amounts, as is customary
for established companies engaged in the same or similar business and similarly
situated. In the event of a conflict between the provisions of this Section and
the terms of any Security Documents relating to insurance, the provisions in the
Security Documents will control.
4.7. Compliance with Laws. Comply with all laws applicable to
the Borrower and to the operation of its business (including without limitation
any statute, ordinance, rule or regulation relating to employment practices,
pension benefits or environmental, occupational and health standards and
controls).
4.8. Bank Accounts. Establish and maintain at the Bank the
Borrower's primary depository accounts.
4.9. Financial Covenants. Comply with all of the financial and
other covenants, if any, set forth on the Addendum, and cause Media Sciences
International, Inc. to comply with such covenants.
4.10. Additional Reports. Provide prompt written notice to the
Bank of the occurrence of any of the following (together with a description of
the action which the Borrower proposes to take with respect thereto): (i) any
Event of Default or any event, act or condition which, with the passage of time
or the giving of notice, or both, would constitute an Event of Default (a
"Default"), (ii) any litigation filed by or against the Borrower, (iii) any
Reportable Event or Prohibited Transaction with respect to any Employee Benefit
Plan(s) (as defined in ERISA) or (iv) any event which might result in a material
adverse change in the business, assets, operations, condition (financial or
otherwise) or results of operation of the Borrower.
5. Negative Covenants. The Borrower covenants and agrees that from the
date of this Agreement until all Obligations have been paid in full and any
commitments of the Bank to the Borrower have been terminated, except as set
forth in the Addendum, the Borrower will not, without the Bank's prior written
consent:
5.1. Indebtedness. Create, incur, assume or suffer to exist
any indebtedness for borrowed money other than: (i) the Loan and any subsequent
indebtedness to the Bank; (ii) open account trade debt incurred in the ordinary
course of business and not past due; and (iii) indebtedness in respect of
purchase money financings of personal property.
5.2. Liens and Encumbrances. Except as provided in Section
3.6, create, assume, incur or permit to exist any mortgage, pledge, encumbrance,
security interest, lien or charge of any kind upon any of its property, now
owned or hereafter acquired, or acquire or agree to acquire any kind of property
subject to any conditional sales or other title retention agreement, except
liens securing purchase money indebtedness permitted pursuant to Section 5.1
above.
5.3. Guarantees. Guarantee, endorse or become contingently
liable for the obligations of any person, firm, corporation or other entity,
except in connection with the endorsement and deposit of checks in the ordinary
course of business for collection.
5.4. Loans or Advances. Purchase or hold beneficially any
stock, other securities or evidences of indebtedness of, or make or have
outstanding, any loans or advances to, or otherwise extend credit to, or make
any investment or acquire any interest whatsoever in, any other person, firm,
corporation or other entity, except investments disclosed on the Borrower's
Historical Financial Statements or acceptable to the Bank in its sole
discretion.
5.5. Merger or Transfer of Assets. Liquidate or dissolve, or
merge or consolidate with or into any person, firm, corporation or other entity,
or sell, lease, transfer or otherwise dispose of all or any substantial part of
its property, assets, operations or business, whether now owned or hereafter
acquired.
5.6. Change in Business, Management or Ownership. Make or
permit and cause each Guarantor under the Security Documents not to make or
permit, any change in its form of organization, the nature of its business as
carried on as of the date hereof, or in the individual serving as President
and/or Chief Executive Officer.
5.7. Dividends. Declare or pay any dividends on or make any
distribution with respect to any class of its equity or ownership interest, or
purchase, redeem, retire or otherwise acquire any of its equity other than to
pay any dividends on or make any distribution with respect to the parent of
Borrower, Media Sciences International, Inc., a Delaware corporation.
5.8. Acquisitions. Make acquisitions of all or substantially
all of the property or assets of any person, firm, corporation or other entity.
6. Events of Default. The occurrence of any of the following will be
deemed to be an Event of Default:
6.1. Covenant Default. The Borrower and/or Media Sciences International, Inc.
shall default in the performance of any of the covenants or agreements contained
in this Agreement which calls for the payment of money when such money is due or
the Borrower fails to keep, observe or perform any of the other undertakings,
conditions, stipulations, agreements, covenants or obligations of the Borrower
as set forth in this Agreement, and such failure continues for twenty (20) days
after the receipt of written notice from the Bank; provided, however the
aforesaid notice and cure period applicable to non-monetary defaults shall not
apply with respect to the financial covenants set forth in the Addendum.
6.2. Breach of Warranty. Any Financial Statement,
representation, warranty or certificate made or furnished by the Borrower to the
Bank in connection with this Agreement shall be materially false, incorrect or
incomplete when made.
6.3. Other Default. The occurrence of an Event of Default as
defined in the Note or any of the Loan Documents.
Upon the occurrence of an Event of Default, the Bank will have all rights and
remedies specified in the Note and the Loan Documents and all rights and
remedies (which are cumulative and not exclusive) available under applicable law
or in equity.
7. Conditions. The Bank's obligation to make any advance under the Loan
is subject to the conditions that as of the date of the advance:
7.1. No Event of Default. No Event of Default or event which
with the passage of time, the giving of notice or both would constitute an Event
of Default shall have occurred and be continuing;
7.2. Authorization Documents. The Bank shall have received
certified copies of resolutions of the board of directors, the general partners
or the members or managers of any partnership, corporation or limited liability
company that executes this Agreement, the Note or any of the other Loan
Documents; or other proof of authorization satisfactory to the Bank; and
7.3. Receipt of Loan Documents. The Bank shall have received
the Loan Documents and such other instruments and documents which the Bank may
reasonably request in connection with the transactions provided for in this
Agreement, which may include an opinion of counsel in form and substance
satisfactory to the Bank for any party executing any of the Loan Documents.
8. Expenses. The Borrower agrees to pay the Bank, upon the execution of
this Agreement, and otherwise on demand, all costs and expenses incurred by the
Bank in connection with the preparation, negotiation and delivery of this
Agreement and the other Loan Documents, and any modifications thereto, and the
collection of all of the Obligations, including but not limited to enforcement
actions, relating to the Loan, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions or proceedings arising out
of or relating to this Agreement, including reasonable fees and expenses of
counsel (which may include costs of in-house counsel), expenses for auditors,
appraisers and environmental consultants, lien searches, recording and filing
fees and taxes. Notwithstanding the foregoing, the Bank has agreed to be
responsible for the costs and expenses incurred by the Bank on or prior to the
date hereof in connection with the preparation, negotiation and delivery of this
Agreement and the other Loan Documents, lien searches, recording and filing
fees.
9. Increased Costs. On written demand, together with written evidence
of the justification therefor, the Borrower agrees to pay the Bank all direct
costs incurred and any losses suffered or payments made by the Bank as a
consequence of making the Loan by reason of any change in law or regulation, or
the interpretation thereof, imposing any reserve, deposit, allocation of capital
or similar requirement (including without limitation, Regulation D of the Board
of Governors of the Federal Reserve System) on the Bank, its holding company or
any of their respective assets.
10. Miscellaneous.
10.1. 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.
10.2. Preservation of Rights. No delay or omission on the
Bank'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 Bank s action or inaction impair any such right or power. The Bank's
rights and remedies hereunder are cumulative and not exclusive of any other
rights or remedies which the Bank may have under other agreements, at law or in
equity.
10.3. Illegality. If any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, it shall not affect
or impair the validity, legality and enforceability of the remaining provisions
of this Agreement.
10.4. Changes in Writing. No modification, amendment or waiver
of, or consent to any departure by the Borrower from, any provision of this
Agreement will be effective unless made in a writing signed by the party to be
charged, 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
Borrower will entitle the Borrower to any other or further notice or demand in
the same, similar or other circumstance.
10.5. Entire Agreement. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
10.6. Counterparts. This Agreement may be signed in any number
of counterpart copies and by the parties hereto on separate counterparts, but
all such copies shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart.
Any party so executing this Agreement 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.
10.7. Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the Borrower and the Bank and their respective
heirs, executors, administrators, successors and assigns; provided, however,
that the Borrower may not assign this Agreement in whole or in part without the
Bank's prior written consent and the Bank at any time may assign this Agreement
in whole or in part.
10.8. Interpretation. In this Agreement, unless the Bank and
the Borrower otherwise agree in writing, the singular includes the plural and
the plural the singular; words importing any gender include the other genders;
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";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Agreement; and references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications to such instruments, but only to the extent such amendments and
other modifications are not prohibited by the terms of this Agreement. Section
headings in this Agreement are included for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose. Unless
otherwise specified in this Agreement, all accounting terms shall be interpreted
and all accounting determinations shall be made in accordance with GAAP. If this
Agreement is executed by more than one party as Borrower, the obligations of
such persons or entities will be joint and several.
10.9. No Consequential Damages, Etc. The Bank will not be
responsible for any damages, consequential, incidental, special, punitive or
otherwise, that may be incurred or alleged by any person or entity, including
the Borrower and any Guarantor, as a result of this Agreement, the other Loan
Documents, the transactions contemplated hereby or thereby, or the use of the
proceeds of the Loan.
10.10. Assignments and Participations. At any time, without
any notice to the Borrower, the Bank may sell, assign, transfer, negotiate,
grant participations in, or otherwise dispose of all or any part of the Bank's
interest in the Loan. The Borrower hereby authorizes the Bank to provide,
without any notice to the Borrower, any information concerning the Borrower,
including information pertaining to the Borrower's financial condition, business
operations or general creditworthiness, to any person or entity which may
succeed to or participate in all or any part of the Bank's interest in the Loan.
10.11. Governing Law and Jurisdiction. This Agreement has been
delivered to and accepted by the Bank and will be deemed to be made in the State
where the Bank's office indicated above is located. THIS AGREEMENT WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS
LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court in the
county or judicial district where the Bank's office indicated above is located;
provided that nothing contained in this Agreement will prevent the Bank from
bringing any action, enforcing any award or judgment or exercising any rights
against the Borrower individually, against any security or against any property
of the Borrower within any other county, state or other foreign or domestic
jurisdiction. The Bank and the Borrower agree that the venue provided above is
the most convenient forum for both the Bank and the Borrower. The Borrower
waives any objection to venue and any objection based on a more convenient forum
in any action instituted under this Agreement.
10.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE BANK
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER AND THE BANK ACKNOWLEDGE
THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Agreement, 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.
WITNESS / ATTEST: Media Sciences, Inc.
____________________________________ By:________________________________
(SEAL)
Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, President
Secretary
WITNESS / ATTEST: Cadapult Graphic Systems, Inc.
____________________________________ By:________________________________
(SEAL)
Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, President
Secretary
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx
Title: Vice President
Committed Line of Credit Note
$3,000,000.00 December 16, 2004
FOR VALUE RECEIVED, Media Sciences, Inc., a New Jersey corporation, and Cadapult
Graphic Systems, Inc., a New Jersey corporation (collectively, the "Borrower"),
with an address at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, promises to pay to the
order of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), in lawful money of the
United States of America in immediately available funds at its offices located
at Xxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000, or at such
other location as the Bank may designate from time to time, the principal sum of
THREE MILLION AND 00/100 DOLLARS ($3,000,000.00) (the "Facility") or such lesser
amount as may be advanced to or for the benefit of the Borrower hereunder,
together with interest accruing on the outstanding principal balance from the
date hereof, all as provided below.
1. Credit Facility/Charges The credit facility covered by this Note is a
revolving line of credit under which the Borrower may request and the Bank,
subject to the terms and conditions of this Agreement and the Loan Documents (as
defined below), will: (i) accept and discount drafts drawn by the Borrower on
the Bank (each a "Bankers' Acceptance") subject to an aggregate sub-limit on
Bankers' Acceptances of $500,000.00, and (ii) make direct advances, from time to
time until the Expiration Date, in the aggregate amount at any time outstanding
not to exceed $3,000,000.00 (the "Line of Credit"). The "Expiration Date" means
November 30, 2006, or such later date as may be designated by the Bank by
written notice to the Borrower. The Borrower acknowledges and agrees that in no
event will the Bank be under any obligation to extend or renew the Line of
Credit beyond the Expiration Date.
(a) Bankers' Acceptances.
(i) Each request for a Bankers' Acceptance must be accompanied by a certificate
signed by the Borrower in form and substance satisfactory to the Bank. The
availability of Bankers' Acceptances and direct borrowings under the Line of
Credit shall be reduced by the face amount of each Bankers' Acceptance issued
and outstanding (whether or not honored). Unless approved by the Bank, each
Bankers' Acceptance shall have a maturity date of not more than one hundred
eighty (180) days from the date of its creation and, in no event, beyond the
Expiration Date.
(ii) The Bank shall discount each Bankers' Acceptance by deducting from the face
amount of the draft: (a) a discount determined by applying the Bank's Discount
Rate (as hereinafter defined) to such face amount for the period from acceptance
to maturity; and (b) an acceptance commission equal to two hundred twenty five
(225) basis points (2.25%) of the face amount of such draft for the period from
acceptance to maturity; both calculated on the basis of a year of three hundred
sixty (360) days and shall make the net amount available to the Borrower by
crediting the Borrower's demand deposit account with the Bank. The Borrower
agrees to immediately repay the face amount of the Bankers' Acceptance when it
is honored by the Bank. "Discount Rate" means the Bank's prevailing discount
rate for bankers' acceptances having face amounts and maturities comparable to
those of the draft to be discounted, as determined by the Bank on the date of
discount.
(iii) Neither the Bank nor any of its directors, officers, or employees shall be
liable for any action taken or omitted under or in connection with any Bankers'
Acceptance, any draft to which a Bankers' Acceptance relates or any document(s)
relating or pertaining to a Bankers' Acceptance. The Bank shall be entitled to
act (and shall be fully protected against any claim of loss by the Borrower
occasioned by the lack, or claimed lack, of authenticity or authority of the
issuance of any draft or signature thereon, in acting) upon any oral or written
communication or instrument reasonably believed by the Bank to be genuine and
correct and to have been made by a proper person.
(iv) The Borrower further agrees that, in the event that any Bankers' Acceptance
shall not, in the reasonable opinion of the Bank, meet all the requirements for
"eligible" Bankers' Acceptances under Section 13 of the Federal Reserve Act (the
"Act") or any change in the applicable law, the Borrower shall indemnify the
Bank against any loss or expense incurred by the Bank, directly or indirectly,
arising out of such ineligibility including, without limitation, any cost of
maintaining reserves in respect of such Bankers' Acceptance and any loss or
expense resulting from the illiquidity of the market for ineligible bankers'
acceptances. If the Bank sustains or incurs any such costs, expenses or losses,
it shall from time to time notify the Borrower of the amount determined in good
faith by the Bank (which good faith determination shall be conclusive absent
manifest error) to be necessary to indemnify the Bank for such loss or expense.
Such amount shall be due and payable by the Borrower to the Bank on demand.
(b) Direct Borrowings.
(i) Direct borrowings will bear interest at a rate per annum which is
at all times equal to the Prime Rate plus three quarters of one percent (.75%).
Interest will be calculated based on the actual number of days that principal is
outstanding over a year of 360 days. 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 of interest 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 on this Note will change automatically without
notice to the Borrower, effective on the date of any such change. In no event
will the rate of interest hereunder exceed the maximum rate allowed by law.
(ii) A request for advance made by telephone must be promptly confirmed
in writing by such method as the Bank may require. The Borrower authorizes the
Bank to accept telephonic requests for advances, and the Bank shall be entitled
to rely upon the authority of any person providing such instructions. The
Borrower hereby indemnifies and holds the Bank harmless from and against any and
all damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees and expenses) which may arise or be created by the acceptance of
such telephone requests or making such advances. The Bank will enter on its
books and records, which entry when made will be presumed correct, the date and
amount of each advance, as well as the date and amount of each payment made by
the Borrower.
2. Payment Terms. Payment shall be made in the amounts and on the dates required
in the Loan Documents that relate to each Bankers' Acceptance. Accrued interest
on direct borrowings will be due and payable on the 1st day of each month,
beginning with the payment due on January 1, 2005. The outstanding principal
balance and any accrued but unpaid interest shall be due and payable on the
Expiration Date.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the Borrower's
deposit account at the Bank for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Bank may choose, in its
sole discretion.
3. Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within fifteen (15) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to the lesser of five
percent (5%) of the amount of such payment or $150.00 (the "Late Charge"). Such
fifteen (15) day period shall not be construed in any way to extend the due date
of any such payment. Upon maturity, whether by acceleration, demand or
otherwise, and at the Bank's option upon the occurrence of any Event of Default
(as hereinafter defined) and during the continuance thereof, amounts outstanding
under this Note shall bear interest at a rate per annum (based on the actual
number of days that principal is outstanding over a year of 360 days) which
shall be five percentage points (5%) in excess of the interest rate in effect
from time to time under this Note but not more than the maximum rate allowed by
law (the "Default Rate"). The Default Rate shall continue to apply whether or
not judgment shall be entered on this Note. Both the Late Charge and the Default
Rate are imposed as liquidated damages for the purpose of defraying the Bank's
expenses incident to the handling of delinquent payments, but are in addition
to, and not in lieu of, the Bank's exercise of any rights and remedies
hereunder, under the other Loan Documents or under applicable law, and any fees
and expenses of any agents or attorneys which the Bank may employ. In addition,
the Default Rate reflects the increased credit risk to the Bank of carrying a
loan that is in default. The Borrower agrees that the Late Charge and Default
Rate are reasonable forecasts of just compensation for anticipated and actual
harm incurred by the Bank, and that the actual harm incurred by the Bank cannot
be estimated with certainty and without difficulty.
4. Prepayment. The direct borrowing indebtedness evidenced by this Note
may be prepaid in whole or in part at any time without penalty. Notwithstanding
the foregoing, if the Facility is terminated by the Borrower before the
Expiration Date, the Borrower shall pay the Bank a termination fee of $15,000;
provided, however, if termination occurs after the first anniversary of this
Note, the termination fee will be waived if sixty (60) days advance notice is
provided to the Bank.
5. Other Loan Documents. This Note is issued in connection with a letter
agreement or loan agreement between the Borrower and the Bank, dated on or
before the date hereof, and the other agreements and documents executed and/or
delivered in connection therewith or referred to therein, the terms of which are
incorporated herein by reference (as amended, modified or renewed from time to
time, including, without limitation all instruments heretofore and hereafter
delivered that relate to each Bankers' Acceptance, collectively the "Loan
Documents"), and is secured by the property (if any) described in the Loan
Documents and by such other collateral as previously may have been or may in the
future be granted to the Bank to secure this Note.
6. Events of Default. The occurrence of any of the following events will be
deemed to be an "Event of Default" under this Note: (i) the nonpayment of any
principal, interest or other indebtedness under this Note when due; (ii) the
occurrence of any event of default or any default and the lapse of any notice or
cure period, or any Obligor's failure to observe or perform any covenant or
other agreement, under or contained in any Loan Document or any other document
now or in the future evidencing or securing any debt, liability or obligation of
any Obligor to the Bank; (iii) the filing by or against any Obligor of any
proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship or similar proceeding (and, in the case of any such proceeding
instituted against any Obligor, such proceeding is not dismissed or stayed
within 30 days of the commencement thereof, provided that the Bank shall not be
obligated to advance additional funds hereunder during such period); (iv) any
assignment by any Obligor for the benefit of creditors, or any levy,
garnishment, attachment or similar proceeding is instituted against any property
of any Obligor held by or deposited with the Bank; (v) a default with respect to
any other indebtedness of any Obligor for borrowed money, if the effect of such
default is to cause or permit the acceleration of such debt; (vi) the
commencement of any foreclosure or forfeiture proceeding, execution or
attachment against any collateral securing the obligations of any Obligor to the
Bank; (vii) the entry of a final judgment against any Obligor and the failure of
such Obligor to discharge the judgment within ten (10) days of the entry
thereof; (viii) any material adverse change in any Obligor's business, assets,
operations, financial condition or results of operations; (ix) any Obligor
ceases doing business as a going concern; (x) any representation or warranty
made by any Obligor to the Bank in any Loan Document or any other documents now
or in the future evidencing or securing the obligations of any Obligor to the
Bank, is false, erroneous or misleading in any material respect; (xi) if this
Note or any guarantee executed by any Obligor is secured, the failure of any
Obligor to provide the Bank with additional collateral if in the Bank's opinion
at any time or times, the market value of any of the collateral securing this
Note or any guarantee has depreciated below that required pursuant to the Loan
Documents or, if no specific value is so required, then in an amount deemed
material by the Bank; (xii) the revocation or attempted revocation, in whole or
in part, of any guarantee by any Obligor; or (xiii) the death, incarceration,
indictment or legal incompetency of any individual Obligor or, if any Obligor is
a partnership or limited liability company, the death, incarceration, indictment
or legal incompetency of any individual general partner or member. As used
herein, the term "Obligor" means any Borrower and any guarantor of, or any
pledgor, mortgagor or other person or entity providing collateral support for,
the Borrower's obligations to the Bank existing on the date of this Note or
arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances or otherwise extend credit hereunder; (b) if
an Event of Default specified in clause (iii) or (iv) above shall occur, the
outstanding principal balance and accrued interest hereunder together with any
additional amounts payable hereunder shall be immediately due and payable
without demand or notice of any kind; (c) if any other Event of Default shall
occur, the outstanding principal balance and accrued interest hereunder together
with any additional amounts payable hereunder, at the Bank's option and without
demand or notice of any kind, may be accelerated and become immediately due and
payable; (d) at the Bank's option, this Note will bear interest at the Default
Rate from the date of the occurrence of the Event of Default; and (e) the Bank
may exercise from time to time any of the rights and remedies available under
the Loan Documents or under applicable law.
7. Right of Setoff. In addition to all liens upon and rights of setoff against
the Borrower's money, securities or other property given to the Bank by law, the
Bank shall have, with respect to the Borrower's obligations to the Bank under
this Note and to the extent permitted by law, a contractual possessory security
interest in and a contractual right of setoff against, and the Borrower hereby
grants the Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank, all of the Borrower's right, title and
interest in and to, all of the Borrower's deposits, moneys, securities and other
property now or hereafter in the possession of or on deposit with, or in transit
to, the Bank 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 Borrower. 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 Bank, although the Bank may enter such setoff on its
books and records at a later time.
8. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal
entity, if any, who controls, is controlled by or is under common control with
the Bank, and each of their respective directors, officers and employees (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 and preparation therefor) which
any Indemnified Party may incur or which may be asserted against any Indemnified
Party by any person, entity or governmental authority (including any person or
entity claiming derivatively on behalf of the Borrower), in connection with or
arising out of or relating to the matters referred to in this Note or in the
other Loan Documents or the use of any advance hereunder, whether (a) arising
from or incurred in connection with any breach of a representation, warranty or
covenant by the Borrower, or (b) 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; provided, however, that
the foregoing indemnity agreement shall not apply to any 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 Note, payment of any advance
hereunder and the assignment of any rights hereunder. The Borrower may
participate at its expense in the defense of any such action or claim.
9. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder ("Notices") must be in writing
(except as may be agreed otherwise above with respect to borrowing requests) 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 paragraph. No delay or omission
on the Bank'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 Bank's action or inaction impair any such right or power. The
Bank's rights and remedies hereunder are cumulative and not exclusive of any
other rights or remedies which the Bank may have under other agreements, at law
or in equity. No modification, amendment or waiver of, or consent to any
departure by the Borrower from, any provision of this Note will be effective
unless made in a writing signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. The Borrower agrees to pay on demand, to the extent permitted by law, all
costs and expenses incurred by the Bank in the enforcement of its rights in this
Note and in any security therefor, including without limitation reasonable fees
and expenses of the Bank's counsel. If any provision of this Note is found to be
invalid, illegal or unenforceable in any respect by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and indorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or entities
hereunder will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Bank and its successors and assigns;
provided, however, that the Borrower may not assign this Note in whole or in
part without the Bank's written consent and the Bank at any time may assign this
Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court in the county or judicial district where the Bank's office
indicated above is located; provided that nothing contained in this Note will
prevent the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Borrower individually, against any security or
against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.
10. Authorization to Obtain Credit Reports. By signing below, each Borrower who
is an individual provides written authorization to the Bank or its designee (and
any assignee or potential assignee hereof) to obtain the Borrower's personal
credit profile from one or more national credit bureaus. Such authorization
shall extend to obtaining a credit profile in considering this Note and
subsequently for the purposes of update, renewal or extension of such credit or
additional credit and for reviewing or collecting the resulting account.
11. Joint and Several Liability. Media Sciences, Inc., and/or Cadapult Graphic
Systems,Inc. may request credit under this Note. Regardless of who requests
credit hereunder, all obligations hereunder shall be joint and several.
12. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, 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, Inc.
____________________________________ By:_______________________________
(SEAL)
Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, President
Secretary
WITNESS / ATTEST: Cadapult Graphic Systems, Inc.
____________________________________ By:_______________________________
(SEAL)
Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, President
Secretary
ADDENDUM to that certain Loan Agreement dated December 16, 2004 between Media
Sciences, Inc. and Cadapult Graphic Systems, Inc., as the Borrower, and PNC
Bank, National Association, as the Bank. Capitalized terms used in this Addendum
and not otherwise defined shall have the meanings given them in the Agreement.
Section numbers below refer to the sections of the Agreement.
3.6 Title to Assets. Describe additional liens and encumbrances below:
None.
..
3.7 Litigation. Describe pending and threatened litigation, investigations,
proceedings, etc. below:
None.
4.2/4.3 Financial Statements. The Bank shall be provided with the following
financial information:
(a) Quarterly unaudited consolidated financial statements
of Media Sciences International, Inc. within 45 days of
quarter end.
(b) Annual audited consolidated and consolidating financial
statements of Media Sciences International, Inc. within
120 days of year end.
(c) Accounts receivable agings of each Borrower, and
accounts payable agings of each Borrower, in form
acceptable to the Bank, within 45 days of the end of
each quarter.
(d) Management prepared inventory report of each Borrower,
in form acceptable to the Bank, within 45 days of the
end of each quarter.
(e) Management prepared warranty activity report of each
Borrower, in form acceptable to the Bank, within 45
days of the end of each quarter.
(f) Certification by Xxxxxxx Xxxxx, attached to a true and
complete copy of each annual and quarterly report filed
with the Securities and Exchange Commission, that
states that he has reviewed and signed such report,
within 45 days of filing.
(g) The Bank shall have the right to conduct an annual
field exam of the Borrower's and Media Sciences
International, Inc.'s books and records and operations,
including but not limited to accounts receivable and
inventory reports. The related expenses shall be for
the account of the Bank unless there has been an Event
of Default, in which case all such expenses shall be
for the account of the Borrower.
FINANCIAL COVENANTS
(a) Media Sciences International, Inc. will maintain as of
the end of each fiscal quarter a ratio of Funded Debt
to EBITDA of not more than 2.50 to 1.00. Measured on a
rolling four quarter basis commencing with quarter
ending 6/30/05. (for quarter ending 12/31/04 and
3/31/05 it will be measured on fiscal year to date
basis with EBITDA annualized)
(b) Media Sciences International, Inc. will maintain as of
the end of each fiscal quarter a ratio of Cash Flow to
Cash Uses of not less than 1.0 (Measured on a rolling
four quarter basis)
As used herein:
"Current Maturities" means the scheduled payments of
principal on all indebtedness for borrowed money having an
original term of more than one year (including but not
limited to amortization of capitalized lease obligations),
as shown on the Guarantor's financial statements as of one
year prior to the date of determination.
"EBITDA" means net income plus interest expense plus income
tax expense plus depreciation plus amortization.
"Funded Debt" means all borrowed debt including senior
borrowed debt and subordinated debt.
"Tangible Net Worth" means stockholder's equity in the
Guarantor less any advances to affiliated parties less all
items properly classified as intangibles, in accordance with
GAAP.
"Unfunded Capital Expenditures" Represents the difference
between actual capital expenditures and term financing, the
proceeds of which were used to purchase such capital
expenditures. In effect, this represents capital
expenditures which were purchased with operating cash flow.
"Cash Flow" means Net Income After Taxes plus Depreciation,
plus Interest Expense, minus Nonrecurring Gains, plus
Nonrecurring Losses, plus Non-cash Expenses, minus Dividend
Distributions, plus Capital Contributions.
"Cash Uses" means Prior year's CMLTD (current maturities of
long term debt) including capital lease payments, plus
current year's interest expense, plus Unfunded Capital
Expenditures.
Security Agreement
THIS SECURITY AGREEMENT (this "Agreement"), dated as of this 16th day of
December, 2004, is made by Cadapult Graphic Systems, Inc., a New Jersey
corporation, (the "Grantor"), with an address 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX
00000, in favor of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address
at Xxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
Under the terms hereof, the Bank desires to obtain and the Grantor desires
to grant the Bank security for all of the Obligations (as hereinafter defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be legally bound,
hereby agree as follows:
1. Definitions.
(a) "Collateral" shall include all personal property of the Grantor,
including the following, all whether now owned or hereafter acquired or arising
and wherever located: (i) accounts (including health-care-insurance receivables
and credit card receivables); (ii) securities entitlements, securities accounts,
commodity accounts, commodity contracts and investment property; (iii) deposit
accounts; (iv) instruments (including promissory notes); (v) documents
(including warehouse receipts); (vi) chattel paper (including electronic chattel
paper and tangible chattel paper); (vii) inventory, including raw materials,
work in process, or materials used or consumed in Grantor's business, items held
for sale or lease or furnished or to be furnished under contracts of service,
sale or lease, goods that are returned, reclaimed or repossessed; (viii) goods
of every nature, including stock-in-trade, goods on consignment, standing timber
that is to be cut and removed under a conveyance or contract for sale, the
unborn young of animals, crops grown, growing, or to be grown, manufactured
homes, computer programs embedded in such goods and farm products; (ix)
equipment, including machinery, vehicles and furniture; (x) fixtures; (xi)
agricultural liens; (xii) as-extracted collateral; (xiii) commercial tort
claims, if any, described on Exhibit "A" hereto; (xiv) letter of credit rights;
(xv) general intangibles, of every kind and description, including payment
intangibles, software, computer information, source codes, object codes, records
and data, all existing and future customer lists, choses in action, claims
(including claims for indemnification or breach of warranty), books, records,
patents and patent applications, copyrights, trademarks, tradenames,
tradestyles, trademark applications, goodwill, blueprints, drawings, designs and
plans, trade secrets, contracts, licenses, license agreements, formulae, tax and
any other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies; (xvi) all supporting obligations of all of the
foregoing property; (xvii) all property of the Grantor now or hereafter in the
Bank's possession or in transit to or from, or under the custody or control of,
the Bank or any affiliate thereof; (xviii) all cash and cash equivalents
thereof; and (xix) all cash and noncash proceeds (including insurance proceeds)
of all of the foregoing property, all products thereof and all additions and
accessions thereto, substitutions therefor and replacements thereof.
(b) "Obligations" shall include all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Grantor and/or Media Sciences,
Inc., a New Jersey corporation and/or Media Sciences International, Inc., a
Delaware corporation to the Bank 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 Grantor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
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, whether or not (i) evidenced by any note,
guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension
of credit, opening of a letter of credit, loan, equipment lease or guarantee,
(v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, (vii) arising out of overdrafts on deposit or other accounts or
out of electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Bank to receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account, or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository or other similar arrangements; and any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection and otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses.
(c) "UCC" means the Uniform Commercial Code, as adopted and enacted and as
in effect from time to time in the State whose law governs pursuant to the
Section of this Agreement entitled "Governing Law and Jurisdiction." Terms used
herein which are defined in the UCC and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the UCC. To the extent the
definition of any category or type of collateral is modified by any amendment,
modification or revision to the UCC, such modified definition will apply
automatically as of the date of such amendment, modification or revision.
2. Grant of Security Interest. To secure the Obligations, the Grantor, as
debtor, hereby assigns and grants to the Bank, as secured party, a continuing
lien on and security interest in the Collateral.
3. Change in Name or Locations. The Grantor hereby agrees that if the location
of the Collateral changes from the locations listed on Exhibit "A" hereto and
made part hereof, or if the Grantor changes its name, its type of organization,
its state of organization (if Grantor is a registered organization), its
principal residence (if Grantor is an individual), its chief executive office
(if Grantor is a general partnership or non-registered organization) or
establishes a name in which it may do business that is not listed as a tradename
on Exhibit "A" hereto, the Grantor will immediately notify the Bank in writing
of the additions or changes.
4. Representations and Warranties. The Grantor represents, warrants and
covenants to the Bank that: (a) all information, including its type of
organization, jurisdiction of organization, chief executive office, and (for
individuals only) principal residence are as set forth on Exhibit "A" hereto and
are true and correct on the date hereof; (b) the Grantor has good, marketable
and indefeasible title to the Collateral, has not made any prior sale, pledge,
encumbrance, assignment or other disposition of any of the Collateral, and the
Collateral is free from all encumbrances and rights of setoff of any kind except
the lien in favor of the Bank created by this Agreement; (c) except as herein
provided in Paragraph 6 below, the Grantor will not hereafter without the Bank's
prior written consent sell, pledge, encumber, assign or otherwise dispose of any
of the Collateral or permit any right of setoff, lien or security interest to
exist thereon except to the Bank; (d) the Grantor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein; (e) each account and general intangible, if included in
the definition of Collateral, is genuine and enforceable in accordance with its
terms and the Grantor will defend the same against all claims, demands, setoffs
and counterclaims at any time asserted; and (f) at the time any account or
general intangible becomes subject to this Agreement, such account or general
intangible will be a good and valid account representing a bona fide sale of
goods or services by the Grantor and such goods will have been shipped to the
respective account debtors or the services will have been performed for the
respective account debtors, and no such account or general intangible will be
subject to any claim for credit, allowance or adjustment by any account debtor
or any setoff, defense or counterclaim.
5. Grantor's Covenants. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the Bank, by or
through any of its officers, agents, attorneys, or accountants, to examine or
inspect the Collateral, and obtain valuations and audits of the Collateral, at
the Grantor's expense, wherever located; provided, however, any exam of the
Grantor's books and records and operations that the Bank may conduct shall be at
the expense of the Grantor only if there has been an Event of Default (as
defined below). The Grantor shall do, obtain, make, execute and deliver all such
additional and further acts, things, deeds, assurances and instruments as the
Bank may require to vest in and assure to the Bank its rights hereunder and in
or to the Collateral, and the proceeds thereof, including waivers from
landlords, warehousemen and mortgagees. The Grantor agrees that the Bank has the
right, at any time after the occurrence of an Event of Default and without
notice to the Grantor, to notify (on invoices or otherwise) account debtors and
other obligors or payors on any Collateral of its assignment to the Bank, and
that all payments thereon should be made directly to the Bank, and that the Bank
has full power and authority to collect, compromise, endorse, sell or otherwise
deal with the Collateral in its own name or that of the Grantor;
(b) keep the Collateral in good order and repair at all times and
immediately notify the Bank of any event causing a material loss or decline in
value of the Collateral, whether or not covered by insurance, and the amount of
such loss or depreciation;
(c) only use or permit the Collateral to be used in accordance with all
applicable federal, state, county and municipal laws and regulations; and
(d) have and maintain insurance at all times with respect to all Collateral
against risks of fire (including so-called extended coverage), theft, sprinkler
leakage, and other risks (including risk of flood if any Collateral is
maintained at a location in a flood hazard zone) as the Bank may require, in
such form, in such amount, for such period and written by such companies as may
be satisfactory to the Bank in its sole discretion. Each such casualty insurance
policy shall contain a standard Lender's Loss Payable Clause issued in favor of
the Bank under which all losses thereunder shall be paid to the Bank as the
Bank's interests may appear. Such policies shall expressly provide that the
requisite insurance cannot be altered or canceled without at least thirty (30)
days prior written notice to the Bank and shall insure the Bank notwithstanding
the act or neglect of the Grantor. Upon the Bank's demand, the Grantor shall
furnish the Bank with duplicate original policies of insurance or such other
evidence of insurance as the Bank may require. In the event of failure to
provide insurance as herein provided, the Bank may, at its option, obtain such
insurance and the Grantor shall pay to the Bank, on demand, the cost thereof.
Proceeds of insurance may be applied by the Bank to reduce the Obligations or to
repair or replace Collateral, all in the Bank's sole discretion.
6. Negative Pledge; No Transfer. The Grantor will not sell or offer to sell or
otherwise transfer or grant or allow the imposition of a lien or security
interest upon the Collateral (except for sales of inventory , collections of
accounts, and sale or other disposal of equipment which is obsolete, in the
Grantor's ordinary course of business), will not allow any third party to gain
control of all or any part of the Collateral, and will not use any portion
thereof in any manner inconsistent with this Agreement or with the terms and
conditions of any policy of insurance thereon.
7. Covenants for Accounts. If accounts are included in the definition of
Collateral:
(a) The Grantor will, on the Bank's demand, make notations on its books and
records showing the Bank's security interest and make available to the Bank
shipping and delivery receipts evidencing the shipment of the goods that gave
rise to an account, completion certificates or other proof of the satisfactory
performance of services that gave rise to an account, a copy of the invoice for
each account and copies of any written contract or order from which an account
arose. The Grantor shall promptly notify the Bank if an account becomes
evidenced or secured by an instrument or chattel paper and upon the Bank's
request, will promptly deliver any such instrument or chattel paper to the Bank,
including any letter of credit delivered to the Grantor to support a shipment of
inventory by the Grantor.
(b) The Grantor will promptly advise the Bank whenever an account debtor
refuses to retain or returns any goods from the sale of which an account arose
in an aggregate amount more than $50,000.00 and will comply with any
instructions that the Bank may give regarding the sale or other disposition of
such returns. From time to time with such frequency as the Bank may request, the
Grantor will report to the Bank all credits given to account debtors on all
accounts.
(c) The Grantor will immediately notify the Bank if any account arises out
of contracts with the United States or any department, agency or instrumentality
thereof, and will execute any instruments and take any steps required by the
Bank so that all monies due and to become due under such contract shall be
assigned to the Bank and notice of the assignment given to and acknowledged by
the appropriate government agency or authority under the Federal Assignment of
Claims Act.
(d) At any time after the occurrence of an Event of Default, and without
notice to the Grantor, the Bank may direct any persons who are indebted to the
Grantor on any Collateral consisting of accounts or general intangibles to make
payment directly to the Bank of the amounts due. The Bank is authorized to
collect, compromise, endorse and sell any such Collateral in its own name or in
the Grantor's name and to give receipts to such account debtors for any such
payments and the account debtors will be protected in making such payments to
the Bank. At any time after the occurrence of an Event of Default ,upon the
Bank's written request, the Grantor will establish with the Bank and maintain a
lockbox account ("Lockbox") with the Bank and a depository account(s) ("Cash
Collateral Account") with the Bank subject to the provisions of this
subparagraph and such other related agreements as the Bank may require, and the
Grantor shall notify its account debtors to remit payments directly to the
Lockbox. Thereafter, funds collected in the Lockbox shall be transferred to the
Cash Collateral Account, and funds in the Cash Collateral Account shall be
applied by the Bank, daily, to reduce the outstanding Obligations.
8. Further Assurances. By its signature hereon, the Grantor hereby
irrevocably authorizes the Bank to execute (on behalf of the Grantor) and file
against the Grantor one or more financing, continuation or amendment statements
pursuant to the UCC in form satisfactory to the Bank, and the Grantor will pay
the cost of preparing and filing the same in all jurisdictions in which such
filing is deemed by the Bank to be necessary or desirable in order to perfect,
preserve and protect its security interests. If required by the Bank, the
Grantor will execute all documentation necessary for the Bank to obtain and
maintain perfection of its security interests in the Collateral. At the Bank's
request, the Grantor will execute, in form satisfactory to the Bank, a Rider to
Security Agreement - Copyrights (if any Collateral consists of registered or
unregistered copyrights), a Rider to Security Agreement - Patents (if any
Collateral consists of patents or patent applications), a Rider to Security
Agreement - Trademarks (if any Collateral consists of trademarks, tradenames,
tradestyles or trademark applications). If any Collateral consists of letter of
credit rights, electronic chattel paper, deposit accounts or supporting
obligations not maintained with the Bank or one of its affiliates, or any
securities entitlement, securities account, commodities account, commodities
contract or other investment property, then at the Bank's request the Grantor
will execute, and will cause the depository institution or securities
intermediary upon whose books and records the ownership interest of the Grantor
in such Collateral appears, to execute such Pledge Agreements, Notification and
Control Agreements or other agreements as the Bank deems necessary in order to
perfect, prioritize and protect its security interest in such Collateral, in
each case in a form satisfactory to the Bank. Notwithstanding the foregoing, the
Bank has agreed to be responsible for the costs and expenses incurred by the
Bank on or prior to the date hereof in connection with the preparation,
negotiation and delivery of this Security Agreement and the other Loan
Documents, lien searches, recording and filing fees.
9. Events of Default. The Grantor shall, at the Bank's option, be in default
under this Agreement upon the happening of any of the following events or
conditions (each, an "Event of Default"): (a) any Event of Default (as defined
in any of the Obligations); (b) 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; (c)
demand by the Bank under any of the Obligations that have a demand feature; (d)
the failure by the Grantor to perform any of its obligations under this
Agreement which calls for the payment of money when such money is due or the
failure by the Grantor to keep, observe or perform any of the other
undertakings, conditions, stipulations, agreements, covenants or obligations of
the Grantor as set forth in this Agreement, and such failure continues for
twenty (20) days after the receipt of written notice from the Bank; (e) falsity,
inaccuracy or material breach by the Grantor of any written warranty,
representation or statement made or furnished to the Bank by or on behalf of the
Grantor; (f) an uninsured material loss, theft, damage, or destruction to any of
the Collateral, or the entry of any judgment against the Grantor and the failure
of the Grantor to discharge the judgment within twenty (20) days of the entry
thereof or any lien against or the making of any levy, seizure or attachment of
or on the Collateral; (g) the failure of the Bank to have a perfected first
priority security interest in the Collateral; (h) any indication or evidence
received by the Bank that the Grantor may have directly or indirectly been
engaged in any type of activity which, in the Bank's discretion, might result in
the forfeiture of any property of the Grantor to any governmental entity,
federal, state or local; or (i) if the Bank otherwise deems itself insecure.
10. Remedies. Upon the occurrence of any such Event of Default and at any time
thereafter, the Bank may declare all Obligations secured hereby immediately due
and payable and shall have, in addition to any remedies provided herein or by
any applicable law or in equity, all the remedies of a secured party under the
UCC. The Bank's remedies include, but are not limited to, the right to (a)
peaceably by its own means or with judicial assistance enter the Grantor's
premises and take possession of the Collateral without prior notice to the
Grantor or the opportunity for a hearing, (b) render the Collateral unusable,
(c) dispose of the Collateral on the Grantor's premises, (d) require the Grantor
to assemble the Collateral and make it available to the Bank at a place
designated by the Bank, and (e) notify the United States Postal Service to send
the Grantor's mail to the Bank. Unless the Collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Bank will give the Grantor reasonable notice of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made. The requirements of
commercially reasonable notice shall be met if such notice is sent to the
Grantor at least ten (10) days before the time of the intended sale or
disposition. Expenses of retaking, holding, preparing for disposition, disposing
or the like shall include the Bank's reasonable attorneys' fees and legal
expenses, incurred or expended by the Bank to enforce any payment due it under
this Agreement either as against the Grantor, or in the prosecution or defense
of any action, or concerning any matter growing out of or connection with the
subject matter of this Agreement and the Collateral pledged hereunder. The
Grantor waives all relief from all appraisement or exemption laws now in force
or hereafter enacted.
11. Power of Attorney. The Grantor does hereby make, constitute and appoint any
officer or agent of the Bank as the Grantor's true and lawful attorney-in-fact,
with power, at any time after the occurrence of an Event of Default, to (a)
endorse the name of the Grantor or any of the Grantor's officers or agents upon
any notes, checks, drafts, money orders, or other instruments of payment or
Collateral that may come into the Bank's possession in full or part payment of
any Obligations; (b) xxx for, compromise, settle and release all claims and
disputes with respect to, the Collateral; and (c) sign, for the Grantor, such
documentation required by the UCC, or supplemental intellectual property
security agreements; granting to the Grantor's said attorney full power to do
any and all things necessary to be done in and about the premises as fully and
effectually as the Grantor might or could do. The Grantor hereby ratifies all
that said attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest, and is irrevocable.
12. Payment of Expenses. At its option, the Bank may discharge taxes, liens,
security interests or such other encumbrances as may attach to the Collateral,
may pay for required insurance on the Collateral and may pay for the
maintenance, appraisal or reappraisal, and preservation of the Collateral, as
determined by the Bank to be necessary. The Grantor will reimburse the Bank on
demand for any payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Bank.
13. 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.
14. Preservation of Rights. No delay or omission on the Bank'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 Bank's action or
inaction impair any such right or power. The Bank's rights and remedies
hereunder are cumulative and not exclusive of any other rights or remedies which
the Bank may have under other agreements, at law or in equity.
15. Illegality. If any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, it shall not affect or impair the
validity, legality and enforceability of the remaining provisions of this
Agreement.
16. Changes in Writing. No modification, amendment or waiver of, or consent to
any departure by the Grantor from, any provision of this Agreement will be
effective unless made in a writing signed by the Bank, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Grantor will entitle the Grantor to
any other or further notice or demand in the same, similar or other
circumstance.
17. Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
18. Counterparts. This Agreement may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument. Delivery of an executed
counterpart of signature page to this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart. Any party so
executing this Agreement 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.
19. Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of the Grantor and the Bank and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Grantor may
not assign this Agreement in whole or in part without the Bank's prior written
consent and the Bank at any time may assign this Agreement in whole or in part.
20. Interpretation. In this Agreement, unless the Bank and the Grantor otherwise
agree in writing, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; 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"; references to articles, sections (or
subdivisions of sections) or exhibits are to those of this Agreement; and
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications to such instruments,
but only to the extent such amendments and other modifications are not
prohibited by the terms of this Agreement. Section headings in this Agreement
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose. Unless otherwise specified in this
Agreement, all accounting terms shall be interpreted and all accounting
determinations shall be made in accordance with GAAP. If this Agreement is
executed by more than one Grantor, the obligations of such persons or entities
will be joint and several.
21. Indemnity. The Grantor agrees to indemnify each of the Bank, each legal
entity, if any, who controls the Bank and each of their respective directors,
officers and employees (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 and
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party by any person, entity or governmental
authority (including any person or entity claiming derivatively on behalf of the
Grantor), in connection with or arising out of or relating to the matters
referred to in this Agreement or the Obligations, whether (a) arising from or
incurred in connection with any breach of a representation, warranty or covenant
by the Grantor, or (b) 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; provided, however, that the foregoing indemnity
agreement shall not apply to any 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 Agreement, payment of the Obligations and
assignment of any rights hereunder. The Grantor may participate at its expense
in the defense of any such claim.
22. Governing Law and Jurisdiction. This Agreement has been delivered to and
accepted by the Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS AGREEMENT WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, EXCEPT
THAT THE LAWS OF THE STATE WHERE ANY COLLATERAL IS LOCATED (IF DIFFERENT FROM
THE STATE WHERE SUCH OFFICE OF THE BANK IS LOCATED) SHALL GOVERN THE CREATION,
PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER ON SUCH PROPERTY OR
ANY INTEREST THEREIN. The Grantor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the county or judicial district
where the Bank's office indicated above is located; provided that nothing
contained in this Agreement will prevent the Bank from bringing any action,
enforcing any award or judgment or exercising any rights against the Grantor
individually, against any security or against any property of the Grantor within
any other county, state or other foreign or domestic jurisdiction. The Bank and
the Grantor agree that the venue provided above is the most convenient forum for
both the Bank and the Grantor. The Grantor waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE BANK IRREVOCABLY WAIVES
ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GRANTOR AND THE BANK ACKNOWLEDGE THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
The Grantor acknowledges that it has read and understood all the provisions of
this Agreement, 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.
WITNESS / ATTEST:
Cadapult Graphic Systems, Inc.
____________________________________ By:_________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT "A"
TO SECURITY AGREEMENT
1. Grantor's form of organization (i.e., corporation, partnership, limited
liability company):
corporation
2. Grantor's State of organization, if a registered organization (i.e.,
corporation, limited partnership or limited liability company):
New Jersey
3. Grantor's principal residence, if a natural person or general partnership:
N/A
4. Address of Grantor's chief executive office, including the County:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
5. Grantor's EIN, if not a natural person:
00-0000000
6. Grantor's SSN, if a natural person:
N/A
7. Grantor's organizational ID# (if any exists):
N/A
8. Address for books and records, if different:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
9. Addresses of other Collateral locations, including Counties, for the past
five (5) years:
Alpha Warehousing, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
10. Name and address of landlord or owner if location is not owned by the
Grantor:
Allendale Associates, 00 Xxxxx 00, Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
JVNJ REALTY CORP, 0000 Xxxx Xxxxx Xxxxxxxxx, #0000, Xxxxxx, Xxxxxxx 00000
11. Other names or tradenames now or formerly used by the Grantor:
N/A
12. List of all existing Commercial Tort Claims (by case title with court and
brief description of claim):
N/A
Security Agreement
THIS SECURITY AGREEMENT (this "Agreement"), dated as of this 16th day of
December, 2004, is made by Media Sciences, Inc., a New Jersey corporation, (the
"Grantor"), with an address 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, in favor of
PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address at Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
Under the terms hereof, the Bank desires to obtain and the Grantor desires
to grant the Bank security for all of the Obligations (as hereinafter defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be legally bound,
hereby agree as follows:
1. Definitions.
(a) "Collateral" shall include all personal property of the Grantor,
including the following, all whether now owned or hereafter acquired or arising
and wherever located: (i) accounts (including health-care-insurance receivables
and credit card receivables); (ii) securities entitlements, securities accounts,
commodity accounts, commodity contracts and investment property; (iii) deposit
accounts; (iv) instruments (including promissory notes); (v) documents
(including warehouse receipts); (vi) chattel paper (including electronic chattel
paper and tangible chattel paper); (vii) inventory, including raw materials,
work in process, or materials used or consumed in Grantor's business, items held
for sale or lease or furnished or to be furnished under contracts of service,
sale or lease, goods that are returned, reclaimed or repossessed; (viii) goods
of every nature, including stock-in-trade, goods on consignment, standing timber
that is to be cut and removed under a conveyance or contract for sale, the
unborn young of animals, crops grown, growing, or to be grown, manufactured
homes, computer programs embedded in such goods and farm products; (ix)
equipment, including machinery, vehicles and furniture; (x) fixtures; (xi)
agricultural liens; (xii) as-extracted collateral; (xiii) commercial tort
claims, if any, described on Exhibit "A" hereto; (xiv) letter of credit rights;
(xv) general intangibles, of every kind and description, including payment
intangibles, software, computer information, source codes, object codes, records
and data, all existing and future customer lists, choses in action, claims
(including claims for indemnification or breach of warranty), books, records,
patents and patent applications, copyrights, trademarks, tradenames,
tradestyles, trademark applications, goodwill, blueprints, drawings, designs and
plans, trade secrets, contracts, licenses, license agreements, formulae, tax and
any other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies; (xvi) all supporting obligations of all of the
foregoing property; (xvii) all property of the Grantor now or hereafter in the
Bank's possession or in transit to or from, or under the custody or control of,
the Bank or any affiliate thereof; (xviii) all cash and cash equivalents
thereof; and (xix) all cash and noncash proceeds (including insurance proceeds)
of all of the foregoing property, all products thereof and all additions and
accessions thereto, substitutions therefor and replacements thereof.
(b) "Obligations" shall include all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Grantor and/ or Cadapult Graphic
Systems, Inc., a New Jersey corporation and/ or Media Sciences International,
Inc., a Delaware corporation to the Bank 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 Grantor, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), 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, whether or not (i) evidenced by any
note, guaranty or other instrument, (ii) arising under any agreement, instrument
or document, (iii) for the payment of money, (iv) arising by reason of an
extension of credit, opening of a letter of credit, loan, equipment lease or
guarantee, (v) under any interest or currency swap, future, option or other
interest rate protection or similar agreement, (vi) under or by reason of any
foreign currency transaction, forward, option or other similar transaction
providing for the purchase of one currency in exchange for the sale of another
currency, or in any other manner, (vii) arising out of overdrafts on deposit or
other accounts or out of electronic funds transfers (whether by wire transfer or
through automated clearing houses or otherwise) or out of the return unpaid of,
or other failure of the Bank to receive final payment for, any check, item,
instrument, payment order or other deposit or credit to a deposit or other
account, or out of the Bank's non-receipt of or inability to collect funds or
otherwise not being made whole in connection with depository or other similar
arrangements; and any amendments, extensions, renewals and increases of or to
any of the foregoing, and all costs and expenses of the Bank incurred in the
documentation, negotiation, modification, enforcement, collection and otherwise
in connection with any of the foregoing, including reasonable attorneys' fees
and expenses.
(c) "UCC" means the Uniform Commercial Code, as adopted and enacted and as
in effect from time to time in the State whose law governs pursuant to the
Section of this Agreement entitled "Governing Law and Jurisdiction." Terms used
herein which are defined in the UCC and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the UCC. To the extent the
definition of any category or type of collateral is modified by any amendment,
modification or revision to the UCC, such modified definition will apply
automatically as of the date of such amendment, modification or revision.
2. Grant of Security Interest. To secure the Obligations, the Grantor, as
debtor, hereby assigns and grants to the Bank, as secured party, a continuing
lien on and security interest in the Collateral.
3. Change in Name or Locations. The Grantor hereby agrees that if the location
of the Collateral changes from the locations listed on Exhibit "A" hereto and
made part hereof, or if the Grantor changes its name, its type of organization,
its state of organization (if Grantor is a registered organization), its
principal residence (if Grantor is an individual), its chief executive office
(if Grantor is a general partnership or non-registered organization) or
establishes a name in which it may do business that is not listed as a tradename
on Exhibit "A" hereto, the Grantor will immediately notify the Bank in writing
of the additions or changes.
4. Representations and Warranties. The Grantor represents, warrants and
covenants to the Bank that: (a) all information, including its type of
organization, jurisdiction of organization, chief executive office, and (for
individuals only) principal residence are as set forth on Exhibit "A" hereto and
are true and correct on the date hereof; (b) the Grantor has good, marketable
and indefeasible title to the Collateral, has not made any prior sale, pledge,
encumbrance, assignment or other disposition of any of the Collateral, and the
Collateral is free from all encumbrances and rights of setoff of any kind except
the lien in favor of the Bank created by this Agreement; (c) except as herein
provided in Paragraph 6 below, the Grantor will not hereafter without the Bank's
prior written consent sell, pledge, encumber, assign or otherwise dispose of any
of the Collateral or permit any right of setoff, lien or security interest to
exist thereon except to the Bank; (d) the Grantor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein; (e) each account and general intangible, if included in
the definition of Collateral, is genuine and enforceable in accordance with its
terms and the Grantor will defend the same against all claims, demands, setoffs
and counterclaims at any time asserted; and (f) at the time any account or
general intangible becomes subject to this Agreement, such account or general
intangible will be a good and valid account representing a bona fide sale of
goods or services by the Grantor and such goods will have been shipped to the
respective account debtors or the services will have been performed for the
respective account debtors, and no such account or general intangible will be
subject to any claim for credit, allowance or adjustment by any account debtor
or any setoff, defense or counterclaim.
5. Grantor's Covenants. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the Bank, by or
through any of its officers, agents, attorneys, or accountants, to examine or
inspect the Collateral, and obtain valuations and audits of the Collateral, at
the Grantor's expense, wherever located; provided, however, any exam of the
Grantor's books and records and operations that the Bank may conduct shall be at
the expense of the Grantor only if there has been an Event of Default (as
defined below). The Grantor shall do, obtain, make, execute and deliver all such
additional and further acts, things, deeds, assurances and instruments as the
Bank may require to vest in and assure to the Bank its rights hereunder and in
or to the Collateral, and the proceeds thereof, including waivers from
landlords, warehousemen and mortgagees. The Grantor agrees that the Bank has the
right, at any time after the occurrence of an Event of Default and without
notice to the Grantor, to notify (on invoices or otherwise) account debtors and
other obligors or payors on any Collateral of its assignment to the Bank, and
that all payments thereon should be made directly to the Bank, and that the Bank
has full power and authority to collect, compromise, endorse, sell or otherwise
deal with the Collateral in its own name or that of the Grantor;
(b) keep the Collateral in good order and repair at all times and
immediately notify the Bank of any event causing a material loss or decline in
value of the Collateral, whether or not covered by insurance, and the amount of
such loss or depreciation;
(c) only use or permit the Collateral to be used in accordance with all
applicable federal, state, county and municipal laws and regulations; and
(d) have and maintain insurance at all times with respect to all Collateral
against risks of fire (including so-called extended coverage), theft, sprinkler
leakage, and other risks (including risk of flood if any Collateral is
maintained at a location in a flood hazard zone) as the Bank may require, in
such form, in such amount, for such period and written by such companies as may
be satisfactory to the Bank in its sole discretion. Each such casualty insurance
policy shall contain a standard Lender's Loss Payable Clause issued in favor of
the Bank under which all losses thereunder shall be paid to the Bank as the
Bank's interests may appear. Such policies shall expressly provide that the
requisite insurance cannot be altered or canceled without at least thirty (30)
days prior written notice to the Bank and shall insure the Bank notwithstanding
the act or neglect of the Grantor. Upon the Bank's demand, the Grantor shall
furnish the Bank with duplicate original policies of insurance or such other
evidence of insurance as the Bank may require. In the event of failure to
provide insurance as herein provided, the Bank may, at its option, obtain such
insurance and the Grantor shall pay to the Bank, on demand, the cost thereof.
Proceeds of insurance may be applied by the Bank to reduce the Obligations or to
repair or replace Collateral, all in the Bank's sole discretion.
6. Negative Pledge; No Transfer. The Grantor will not sell or offer to sell or
otherwise transfer or grant or allow the imposition of a lien or security
interest upon the Collateral (except for sales of inventory , collections of
accounts in the Grantor's ordinary course of business, and sale or other
disposal of equipment which is obsolete), will not allow any third party to gain
control of all or any part of the Collateral, and will not use any portion
thereof in any manner inconsistent with this Agreement or with the terms and
conditions of any policy of insurance thereon.
7. Covenants for Accounts. If accounts are included in the definition of
Collateral:
(a) The Grantor will, on the Bank's demand, make notations on its books and
records showing the Bank's security interest and make available to the Bank
shipping and delivery receipts evidencing the shipment of the goods that gave
rise to an account, completion certificates or other proof of the satisfactory
performance of services that gave rise to an account, a copy of the invoice for
each account and copies of any written contract or order from which an account
arose. The Grantor shall promptly notify the Bank if an account becomes
evidenced or secured by an instrument or chattel paper and upon the Bank's
request, will promptly deliver any such instrument or chattel paper to the Bank,
including any letter of credit delivered to the Grantor to support a shipment of
inventory by the Grantor.
(b) The Grantor will promptly advise the Bank whenever an account debtor
refuses to retain or returns any goods from the sale of which an account arose
in an aggregate amount more than $50,000.00 and will comply with any
instructions that the Bank may give regarding the sale or other disposition of
such returns. From time to time with such frequency as the Bank may request, the
Grantor will report to the Bank all credits given to account debtors on all
accounts.
(c) The Grantor will immediately notify the Bank if any account arises out
of contracts with the United States or any department, agency or instrumentality
thereof, and will execute any instruments and take any steps required by the
Bank so that all monies due and to become due under such contract shall be
assigned to the Bank and notice of the assignment given to and acknowledged by
the appropriate government agency or authority under the Federal Assignment of
Claims Act.
(d) At any time after the occurrence of an Event of Default, and without
notice to the Grantor, the Bank may direct any persons who are indebted to the
Grantor on any Collateral consisting of accounts or general intangibles to make
payment directly to the Bank of the amounts due. The Bank is authorized to
collect, compromise, endorse and sell any such Collateral in its own name or in
the Grantor's name and to give receipts to such account debtors for any such
payments and the account debtors will be protected in making such payments to
the Bank. At any time after the occurrence of an Event of Default ,upon the
Bank's written request, the Grantor will establish with the Bank and maintain a
lockbox account ("Lockbox") with the Bank and a depository account(s) ("Cash
Collateral Account") with the Bank subject to the provisions of this
subparagraph and such other related agreements as the Bank may require, and the
Grantor shall notify its account debtors to remit payments directly to the
Lockbox. Thereafter, funds collected in the Lockbox shall be transferred to the
Cash Collateral Account, and funds in the Cash Collateral Account shall be
applied by the Bank, daily, to reduce the outstanding Obligations.
8. Further Assurances. By its signature hereon, the Grantor hereby
irrevocably authorizes the Bank to execute (on behalf of the Grantor) and file
against the Grantor one or more financing, continuation or amendment statements
pursuant to the UCC in form satisfactory to the Bank, and the Grantor will pay
the cost of preparing and filing the same in all jurisdictions in which such
filing is deemed by the Bank to be necessary or desirable in order to perfect,
preserve and protect its security interests. If required by the Bank, the
Grantor will execute all documentation necessary for the Bank to obtain and
maintain perfection of its security interests in the Collateral. At the Bank's
request, the Grantor will execute, in form satisfactory to the Bank, a Rider to
Security Agreement - Copyrights (if any Collateral consists of registered or
unregistered copyrights), a Rider to Security Agreement - Patents (if any
Collateral consists of patents or patent applications), a Rider to Security
Agreement - Trademarks (if any Collateral consists of trademarks, tradenames,
tradestyles or trademark applications). If any Collateral consists of letter of
credit rights, electronic chattel paper, deposit accounts or supporting
obligations not maintained with the Bank or one of its affiliates, or any
securities entitlement, securities account, commodities account, commodities
contract or other investment property, then at the Bank's request the Grantor
will execute, and will cause the depository institution or securities
intermediary upon whose books and records the ownership interest of the Grantor
in such Collateral appears, to execute such Pledge Agreements, Notification and
Control Agreements or other agreements as the Bank deems necessary in order to
perfect, prioritize and protect its security interest in such Collateral, in
each case in a form satisfactory to the Bank. Notwithstanding the foregoing, the
Bank has agreed to be responsible for the costs and expenses incurred by the
Bank on or prior to the date hereof in connection with the preparation,
negotiation and delivery of this Security Agreement and the other Loan
Documents, lien searches, recording and filing fees.
9. Events of Default. The Grantor shall, at the Bank's option, be in default
under this Agreement upon the happening of any of the following events or
conditions (each, an "Event of Default"): (a) any Event of Default (as defined
in any of the Obligations); (b) 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; (c)
demand by the Bank under any of the Obligations that have a demand feature; (d)
the failure by the Grantor to perform any of its obligations under this
Agreement which calls for the payment of money when such money is due or the
failure by the Grantor to keep, observe or perform any of the other
undertakings, conditions, stipulations, agreements, covenants or obligations of
the Grantor as set forth in this Agreement, and such failure continues for
twenty (20) days after the receipt of written notice from the Bank; (e) falsity,
inaccuracy or material breach by the Grantor of any written warranty,
representation or statement made or furnished to the Bank by or on behalf of the
Grantor; (f) an uninsured material loss, theft, damage, or destruction to any of
the Collateral, or the entry of any judgment against the Grantor and the failure
of the Grantor to discharge the judgment within twenty (20) days of the entry
thereof or any lien against or the making of any levy, seizure or attachment of
or on the Collateral; (g) the failure of the Bank to have a perfected first
priority security interest in the Collateral; (h) any indication or evidence
received by the Bank that the Grantor may have directly or indirectly been
engaged in any type of activity which, in the Bank's discretion, might result in
the forfeiture of any property of the Grantor to any governmental entity,
federal, state or local; or (i) if the Bank otherwise deems itself insecure.
10. Remedies. Upon the occurrence of any such Event of Default and at any time
thereafter, the Bank may declare all Obligations secured hereby immediately due
and payable and shall have, in addition to any remedies provided herein or by
any applicable law or in equity, all the remedies of a secured party under the
UCC. The Bank's remedies include, but are not limited to, the right to (a)
peaceably by its own means or with judicial assistance enter the Grantor's
premises and take possession of the Collateral without prior notice to the
Grantor or the opportunity for a hearing, (b) render the Collateral unusable,
(c) dispose of the Collateral on the Grantor's premises, (d) require the Grantor
to assemble the Collateral and make it available to the Bank at a place
designated by the Bank, and (e) notify the United States Postal Service to send
the Grantor's mail to the Bank. Unless the Collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Bank will give the Grantor reasonable notice of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made. The requirements of
commercially reasonable notice shall be met if such notice is sent to the
Grantor at least ten (10) days before the time of the intended sale or
disposition. Expenses of retaking, holding, preparing for disposition, disposing
or the like shall include the Bank's reasonable attorneys' fees and legal
expenses, incurred or expended by the Bank to enforce any payment due it under
this Agreement either as against the Grantor, or in the prosecution or defense
of any action, or concerning any matter growing out of or connection with the
subject matter of this Agreement and the Collateral pledged hereunder. The
Grantor waives all relief from all appraisement or exemption laws now in force
or hereafter enacted.
11. Power of Attorney. The Grantor does hereby make, constitute and appoint any
officer or agent of the Bank as the Grantor's true and lawful attorney-in-fact,
with power, at any time after the occurrence of an Event of Default, to (a)
endorse the name of the Grantor or any of the Grantor's officers or agents upon
any notes, checks, drafts, money orders, or other instruments of payment or
Collateral that may come into the Bank's possession in full or part payment of
any Obligations; (b) xxx for, compromise, settle and release all claims and
disputes with respect to, the Collateral; and (c) sign, for the Grantor, such
documentation required by the UCC, or supplemental intellectual property
security agreements; granting to the Grantor's said attorney full power to do
any and all things necessary to be done in and about the premises as fully and
effectually as the Grantor might or could do. The Grantor hereby ratifies all
that said attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest, and is irrevocable.
12. Payment of Expenses. At its option, the Bank may discharge taxes, liens,
security interests or such other encumbrances as may attach to the Collateral,
may pay for required insurance on the Collateral and may pay for the
maintenance, appraisal or reappraisal, and preservation of the Collateral, as
determined by the Bank to be necessary. The Grantor will reimburse the Bank on
demand for any payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Bank.
13. 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.
14. Preservation of Rights. No delay or omission on the Bank'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 Bank's action or
inaction impair any such right or power. The Bank's rights and remedies
hereunder are cumulative and not exclusive of any other rights or remedies which
the Bank may have under other agreements, at law or in equity.
15. Illegality. If any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, it shall not affect or impair the
validity, legality and enforceability of the remaining provisions of this
Agreement.
16. Changes in Writing. No modification, amendment or waiver of, or consent to
any departure by the Grantor from, any provision of this Agreement will be
effective unless made in a writing signed by the Bank, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Grantor will entitle the Grantor to
any other or further notice or demand in the same, similar or other
circumstance.
17. Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
18. Counterparts. This Agreement may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument. Delivery of an executed
counterpart of signature page to this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart. Any party so
executing this Agreement 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.
19. Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of the Grantor and the Bank and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Grantor may
not assign this Agreement in whole or in part without the Bank's prior written
consent and the Bank at any time may assign this Agreement in whole or in part.
20. Interpretation. In this Agreement, unless the Bank and the Grantor otherwise
agree in writing, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; 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"; references to articles, sections (or
subdivisions of sections) or exhibits are to those of this Agreement; and
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications to such instruments,
but only to the extent such amendments and other modifications are not
prohibited by the terms of this Agreement. Section headings in this Agreement
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose. Unless otherwise specified in this
Agreement, all accounting terms shall be interpreted and all accounting
determinations shall be made in accordance with GAAP. If this Agreement is
executed by more than one Grantor, the obligations of such persons or entities
will be joint and several.
21. Indemnity. The Grantor agrees to indemnify each of the Bank, each legal
entity, if any, who controls the Bank and each of their respective directors,
officers and employees (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 and
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party by any person, entity or governmental
authority (including any person or entity claiming derivatively on behalf of the
Grantor), in connection with or arising out of or relating to the matters
referred to in this Agreement or the Obligations, whether (a) arising from or
incurred in connection with any breach of a representation, warranty or covenant
by the Grantor, or (b) 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; provided, however, that the foregoing indemnity
agreement shall not apply to any 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 Agreement, payment of the Obligations and
assignment of any rights hereunder. The Grantor may participate at its expense
in the defense of any such claim.
22. Governing Law and Jurisdiction. This Agreement has been delivered to and
accepted by the Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS AGREEMENT WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, EXCEPT
THAT THE LAWS OF THE STATE WHERE ANY COLLATERAL IS LOCATED (IF DIFFERENT FROM
THE STATE WHERE SUCH OFFICE OF THE BANK IS LOCATED) SHALL GOVERN THE CREATION,
PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER ON SUCH PROPERTY OR
ANY INTEREST THEREIN. The Grantor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the county or judicial district
where the Bank's office indicated above is located; provided that nothing
contained in this Agreement will prevent the Bank from bringing any action,
enforcing any award or judgment or exercising any rights against the Grantor
individually, against any security or against any property of the Grantor within
any other county, state or other foreign or domestic jurisdiction. The Bank and
the Grantor agree that the venue provided above is the most convenient forum for
both the Bank and the Grantor. The Grantor waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE BANK IRREVOCABLY WAIVES
ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GRANTOR AND THE BANK ACKNOWLEDGE THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
The Grantor acknowledges that it has read and understood all the provisions of
this Agreement, 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.
WITNESS / ATTEST:
Media Sciences, Inc.
____________________________________ By:________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT "A"
TO SECURITY AGREEMENT
1. Grantor's form of organization (i.e., corporation, partnership, limited
liability company):
corporation
2. Grantor's State of organization, if a registered organization (i.e.,
corporation, limited partnership or limited liability company):
New Jersey
3. Grantor's principal residence, if a natural person or general partnership:
N/A
4. Address of Grantor's chief executive office, including the County:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
5. Grantor's EIN, if not a natural person:
00-0000000
6. Grantor's SSN, if a natural person:
N/A
7. Grantor's organizational ID# (if any exists):
N/A
8. Address for books and records, if different:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
9. Addresses of other Collateral locations, including Counties, for the past
five (5) years:
Alpha Warehousing, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
10. Name and address of landlord or owner if location is not owned by the
Grantor:
Allendale Associates, 00 Xxxxx 00, Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
JVNJ REALTY CORP, 0000 Xxxx Xxxxx Xxxxxxxxx, #0000, Xxxxxx, Xxxxxxx 00000
11. Other names or tradenames now or formerly used by the Grantor:
N/A
12. List of all existing Commercial Tort Claims (by case title with court and
brief description of claim):
N/A
Security Agreement
THIS SECURITY AGREEMENT (this "Agreement"), dated as of this 16th day of
December, 2004, is made by Media Sciences International, Inc., a Delaware
corporation, (the "Grantor"), with an address 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX
00000, in favor of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address
at Xxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
Under the terms hereof, the Bank desires to obtain and the Grantor desires
to grant the Bank security for all of the Obligations (as hereinafter defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be legally bound,
hereby agree as follows:
1. Definitions.
(a) "Collateral" shall include all personal property of the Grantor,
including the following, all whether now owned or hereafter acquired or arising
and wherever located: (i) accounts (including health-care-insurance receivables
and credit card receivables); (ii) securities entitlements, securities accounts,
commodity accounts, commodity contracts and investment property; (iii) deposit
accounts; (iv) instruments (including promissory notes); (v) documents
(including warehouse receipts); (vi) chattel paper (including electronic chattel
paper and tangible chattel paper); (vii) inventory, including raw materials,
work in process, or materials used or consumed in Grantor's business, items held
for sale or lease or furnished or to be furnished under contracts of service,
sale or lease, goods that are returned, reclaimed or repossessed; (viii) goods
of every nature, including stock-in-trade, goods on consignment, standing timber
that is to be cut and removed under a conveyance or contract for sale, the
unborn young of animals, crops grown, growing, or to be grown, manufactured
homes, computer programs embedded in such goods and farm products; (ix)
equipment, including machinery, vehicles and furniture; (x) fixtures; (xi)
agricultural liens; (xii) as-extracted collateral; (xiii) commercial tort
claims, if any, described on Exhibit "A" hereto; (xiv) letter of credit rights;
(xv) general intangibles, of every kind and description, including payment
intangibles, software, computer information, source codes, object codes, records
and data, all existing and future customer lists, choses in action, claims
(including claims for indemnification or breach of warranty), books, records,
patents and patent applications, copyrights, trademarks, tradenames,
tradestyles, trademark applications, goodwill, blueprints, drawings, designs and
plans, trade secrets, contracts, licenses, license agreements, formulae, tax and
any other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies; (xvi) all supporting obligations of all of the
foregoing property; (xvii) all property of the Grantor now or hereafter in the
Bank's possession or in transit to or from, or under the custody or control of,
the Bank or any affiliate thereof; (xviii) all cash and cash equivalents
thereof; and (xix) all cash and noncash proceeds (including insurance proceeds)
of all of the foregoing property, all products thereof and all additions and
accessions thereto, substitutions therefor and replacements thereof.
(b) "Obligations" shall include all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Grantor and/or Media Sciences,
Inc., a New Jersey corporation and/or Cadapult Graphic Systems, Inc., a New
Jersey corporation to the Bank 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 Grantor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
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, whether or not (i) evidenced by any note,
guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension
of credit, opening of a letter of credit, loan, equipment lease or guarantee,
(v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, (vii) arising out of overdrafts on deposit or other accounts or
out of electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Bank to receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account, or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository or other similar arrangements; and any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection and otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses.
(c) "UCC" means the Uniform Commercial Code, as adopted and enacted and as
in effect from time to time in the State whose law governs pursuant to the
Section of this Agreement entitled "Governing Law and Jurisdiction." Terms used
herein which are defined in the UCC and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the UCC. To the extent the
definition of any category or type of collateral is modified by any amendment,
modification or revision to the UCC, such modified definition will apply
automatically as of the date of such amendment, modification or revision.
2. Grant of Security Interest. To secure the Obligations, the Grantor, as
debtor, hereby assigns and grants to the Bank, as secured party, a continuing
lien on and security interest in the Collateral.
3. Change in Name or Locations. The Grantor hereby agrees that if the location
of the Collateral changes from the locations listed on Exhibit "A" hereto and
made part hereof, or if the Grantor changes its name, its type of organization,
its state of organization (if Grantor is a registered organization), its
principal residence (if Grantor is an individual), its chief executive office
(if Grantor is a general partnership or non-registered organization) or
establishes a name in which it may do business that is not listed as a tradename
on Exhibit "A" hereto, the Grantor will immediately notify the Bank in writing
of the additions or changes.
4. Representations and Warranties. The Grantor represents, warrants and
covenants to the Bank that: (a) all information, including its type of
organization, jurisdiction of organization, chief executive office, and (for
individuals only) principal residence are as set forth on Exhibit "A" hereto and
are true and correct on the date hereof; (b) the Grantor has good, marketable
and indefeasible title to the Collateral, has not made any prior sale, pledge,
encumbrance, assignment or other disposition of any of the Collateral, and the
Collateral is free from all encumbrances and rights of setoff of any kind except
the lien in favor of the Bank created by this Agreement; (c) except as herein
provided in Paragraph 6 below, the Grantor will not hereafter without the Bank's
prior written consent sell, pledge, encumber, assign or otherwise dispose of any
of the Collateral or permit any right of setoff, lien or security interest to
exist thereon except to the Bank; (d) the Grantor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein; (e) each account and general intangible, if included in
the definition of Collateral, is genuine and enforceable in accordance with its
terms and the Grantor will defend the same against all claims, demands, setoffs
and counterclaims at any time asserted; and (f) at the time any account or
general intangible becomes subject to this Agreement, such account or general
intangible will be a good and valid account representing a bona fide sale of
goods or services by the Grantor and such goods will have been shipped to the
respective account debtors or the services will have been performed for the
respective account debtors, and no such account or general intangible will be
subject to any claim for credit, allowance or adjustment by any account debtor
or any setoff, defense or counterclaim.
5. Grantor's Covenants. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the Bank, by or
through any of its officers, agents, attorneys, or accountants, to examine or
inspect the Collateral, and obtain valuations and audits of the Collateral, at
the Grantor's expense, wherever located; provided, however, any exam of the
Grantor's books and records and operations that the Bank may conduct shall be at
the expense of the Grantor only if there has been an Event of Default (as
defined below). The Grantor shall do, obtain, make, execute and deliver all such
additional and further acts, things, deeds, assurances and instruments as the
Bank may require to vest in and assure to the Bank its rights hereunder and in
or to the Collateral, and the proceeds thereof, including waivers from
landlords, warehousemen and mortgagees. The Grantor agrees that the Bank has the
right, at any time after the occurrence of an Event of Default and without
notice to the Grantor, to notify (on invoices or otherwise) account debtors and
other obligors or payors on any Collateral of its assignment to the Bank, and
that all payments thereon should be made directly to the Bank, and that the Bank
has full power and authority to collect, compromise, endorse, sell or otherwise
deal with the Collateral in its own name or that of the Grantor;
(b) keep the Collateral in good order and repair at all times and
immediately notify the Bank of any event causing a material loss or decline in
value of the Collateral, whether or not covered by insurance, and the amount of
such loss or depreciation;
(c) only use or permit the Collateral to be used in accordance with all
applicable federal, state, county and municipal laws and regulations; and
(d) have and maintain insurance at all times with respect to all Collateral
against risks of fire (including so-called extended coverage), theft, sprinkler
leakage, and other risks (including risk of flood if any Collateral is
maintained at a location in a flood hazard zone) as the Bank may require, in
such form, in such amount, for such period and written by such companies as may
be satisfactory to the Bank in its sole discretion. Each such casualty insurance
policy shall contain a standard Lender's Loss Payable Clause issued in favor of
the Bank under which all losses thereunder shall be paid to the Bank as the
Bank's interests may appear. Such policies shall expressly provide that the
requisite insurance cannot be altered or canceled without at least thirty (30)
days prior written notice to the Bank and shall insure the Bank notwithstanding
the act or neglect of the Grantor. Upon the Bank's demand, the Grantor shall
furnish the Bank with duplicate original policies of insurance or such other
evidence of insurance as the Bank may require. In the event of failure to
provide insurance as herein provided, the Bank may, at its option, obtain such
insurance and the Grantor shall pay to the Bank, on demand, the cost thereof.
Proceeds of insurance may be applied by the Bank to reduce the Obligations or to
repair or replace Collateral, all in the Bank's sole discretion.
6. Negative Pledge; No Transfer. The Grantor will not sell or offer to sell or
otherwise transfer or grant or allow the imposition of a lien or security
interest upon the Collateral (except for sales of inventory, collections of
accounts in the Grantor's ordinary course of business, and sale or other
disposal of equipment which is obsolete), will not allow any third party to gain
control of all or any part of the Collateral, and will not use any portion
thereof in any manner inconsistent with this Agreement or with the terms and
conditions of any policy of insurance thereon.
7. Covenants for Accounts. If accounts are included in the definition of
Collateral:
(a) The Grantor will, on the Bank's demand, make notations on its books and
records showing the Bank's security interest and make available to the Bank
shipping and delivery receipts evidencing the shipment of the goods that gave
rise to an account, completion certificates or other proof of the satisfactory
performance of services that gave rise to an account, a copy of the invoice for
each account and copies of any written contract or order from which an account
arose. The Grantor shall promptly notify the Bank if an account becomes
evidenced or secured by an instrument or chattel paper and upon the Bank's
request, will promptly deliver any such instrument or chattel paper to the Bank,
including any letter of credit delivered to the Grantor to support a shipment of
inventory by the Grantor.
(b) The Grantor will promptly advise the Bank whenever an account debtor
refuses to retain or returns any goods from the sale of which an account arose
in an aggregate amount more than $50,000.00 and will comply with any
instructions that the Bank may give regarding the sale or other disposition of
such returns. From time to time with such frequency as the Bank may request, the
Grantor will report to the Bank all credits given to account debtors on all
accounts.
(c) The Grantor will immediately notify the Bank if any account arises out
of contracts with the United States or any department, agency or instrumentality
thereof, and will execute any instruments and take any steps required by the
Bank so that all monies due and to become due under such contract shall be
assigned to the Bank and notice of the assignment given to and acknowledged by
the appropriate government agency or authority under the Federal Assignment of
Claims Act.
(d) At any time after the occurrence of an Event of Default, and without
notice to the Grantor, the Bank may direct any persons who are indebted to the
Grantor on any Collateral consisting of accounts or general intangibles to make
payment directly to the Bank of the amounts due. The Bank is authorized to
collect, compromise, endorse and sell any such Collateral in its own name or in
the Grantor's name and to give receipts to such account debtors for any such
payments and the account debtors will be protected in making such payments to
the Bank. At any time after the occurrence of an Event of Default, upon the
Bank's written request, the Grantor will establish with the Bank and maintain a
lockbox account ("Lockbox") with the Bank and a depository account(s) ("Cash
Collateral Account") with the Bank subject to the provisions of this
subparagraph and such other related agreements as the Bank may require, and the
Grantor shall notify its account debtors to remit payments directly to the
Lockbox. Thereafter, funds collected in the Lockbox shall be transferred to the
Cash Collateral Account, and funds in the Cash Collateral Account shall be
applied by the Bank, daily, to reduce the outstanding Obligations.
8. Further Assurances. By its signature hereon, the Grantor hereby
irrevocably authorizes the Bank to execute (on behalf of the Grantor) and file
against the Grantor one or more financing, continuation or amendment statements
pursuant to the UCC in form satisfactory to the Bank, and the Grantor will pay
the cost of preparing and filing the same in all jurisdictions in which such
filing is deemed by the Bank to be necessary or desirable in order to perfect,
preserve and protect its security interests. If required by the Bank, the
Grantor will execute all documentation necessary for the Bank to obtain and
maintain perfection of its security interests in the Collateral. At the Bank's
request, the Grantor will execute, in form satisfactory to the Bank, a Rider to
Security Agreement - Copyrights (if any Collateral consists of registered or
unregistered copyrights), a Rider to Security Agreement - Patents (if any
Collateral consists of patents or patent applications), a Rider to Security
Agreement - Trademarks (if any Collateral consists of trademarks, tradenames,
tradestyles or trademark applications). If any Collateral consists of letter of
credit rights, electronic chattel paper, deposit accounts or supporting
obligations not maintained with the Bank or one of its affiliates, or any
securities entitlement, securities account, commodities account, commodities
contract or other investment property, then at the Bank's request the Grantor
will execute, and will cause the depository institution or securities
intermediary upon whose books and records the ownership interest of the Grantor
in such Collateral appears, to execute such Pledge Agreements, Notification and
Control Agreements or other agreements as the Bank deems necessary in order to
perfect, prioritize and protect its security interest in such Collateral, in
each case in a form satisfactory to the Bank. Notwithstanding the foregoing, the
Bank has agreed to be responsible for the costs and expenses incurred by the
Bank on or prior to the date hereof in connection with the preparation,
negotiation and delivery of this Security Agreement and the other Loan
Documents, lien searches, recording and filing fees.
9. Events of Default. The Grantor shall, at the Bank's option, be in default
under this Agreement upon the happening of any of the following events or
conditions (each, an "Event of Default"): (a) any Event of Default (as defined
in any of the Obligations); (b) 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; (c)
demand by the Bank under any of the Obligations that have a demand feature; (d)
the failure by the Grantor to perform any of its obligations under this
Agreement which calls for the payment of money when such money is due or the
failure by the Grantor to keep, observe or perform any of the other
undertakings, conditions, stipulations, agreements, covenants or obligations of
the Grantor as set forth in this Agreement, and such failure continues for
twenty (20) days after the receipt of written notice from the Bank; (e) falsity,
inaccuracy or material breach by the Grantor of any written warranty,
representation or statement made or furnished to the Bank by or on behalf of the
Grantor; (f) an uninsured material loss, theft, damage, or destruction to any of
the Collateral, or the entry of any judgment against the Grantor and the failure
of the Grantor to discharge the judgment within twenty (20) days of the entry
thereof or any lien against or the making of any levy, seizure or attachment of
or on the Collateral; (g) the failure of the Bank to have a perfected first
priority security interest in the Collateral; (h) any indication or evidence
received by the Bank that the Grantor may have directly or indirectly been
engaged in any type of activity which, in the Bank's discretion, might result in
the forfeiture of any property of the Grantor to any governmental entity,
federal, state or local; or (i) if the Bank otherwise deems itself insecure.
10. Remedies. Upon the occurrence of any such Event of Default and at any time
thereafter, the Bank may declare all Obligations secured hereby immediately due
and payable and shall have, in addition to any remedies provided herein or by
any applicable law or in equity, all the remedies of a secured party under the
UCC. The Bank's remedies include, but are not limited to, the right to (a)
peaceably by its own means or with judicial assistance enter the Grantor's
premises and take possession of the Collateral without prior notice to the
Grantor or the opportunity for a hearing, (b) render the Collateral unusable,
(c) dispose of the Collateral on the Grantor's premises, (d) require the Grantor
to assemble the Collateral and make it available to the Bank at a place
designated by the Bank, and (e) notify the United States Postal Service to send
the Grantor's mail to the Bank. Unless the Collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Bank will give the Grantor reasonable notice of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made. The requirements of
commercially reasonable notice shall be met if such notice is sent to the
Grantor at least ten (10) days before the time of the intended sale or
disposition. Expenses of retaking, holding, preparing for disposition, disposing
or the like shall include the Bank's reasonable attorneys' fees and legal
expenses, incurred or expended by the Bank to enforce any payment due it under
this Agreement either as against the Grantor, or in the prosecution or defense
of any action, or concerning any matter growing out of or connection with the
subject matter of this Agreement and the Collateral pledged hereunder. The
Grantor waives all relief from all appraisement or exemption laws now in force
or hereafter enacted.
11. Power of Attorney. The Grantor does hereby make, constitute and appoint any
officer or agent of the Bank as the Grantor's true and lawful attorney-in-fact,
with power, at any time after the occurrence of an Event of Default, to (a)
endorse the name of the Grantor or any of the Grantor's officers or agents upon
any notes, checks, drafts, money orders, or other instruments of payment or
Collateral that may come into the Bank's possession in full or part payment of
any Obligations; (b) xxx for, compromise, settle and release all claims and
disputes with respect to, the Collateral; and (c) sign, for the Grantor, such
documentation required by the UCC, or supplemental intellectual property
security agreements; granting to the Grantor's said attorney full power to do
any and all things necessary to be done in and about the premises as fully and
effectually as the Grantor might or could do. The Grantor hereby ratifies all
that said attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest, and is irrevocable.
12. Payment of Expenses. At its option, the Bank may discharge taxes, liens,
security interests or such other encumbrances as may attach to the Collateral,
may pay for required insurance on the Collateral and may pay for the
maintenance, appraisal or reappraisal, and preservation of the Collateral, as
determined by the Bank to be necessary. The Grantor will reimburse the Bank on
demand for any payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Bank.
13. 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.
14. Preservation of Rights. No delay or omission on the Bank'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 Bank's action or
inaction impair any such right or power. The Bank's rights and remedies
hereunder are cumulative and not exclusive of any other rights or remedies which
the Bank may have under other agreements, at law or in equity.
15. Illegality. If any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, it shall not affect or impair the
validity, legality and enforceability of the remaining provisions of this
Agreement.
16. Changes in Writing. No modification, amendment or waiver of, or consent to
any departure by the Grantor from, any provision of this Agreement will be
effective unless made in a writing signed by the Bank, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Grantor will entitle the Grantor to
any other or further notice or demand in the same, similar or other
circumstance.
17. Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
18. Counterparts. This Agreement may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument. Delivery of an executed
counterpart of signature page to this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart. Any party so
executing this Agreement 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.
19. Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of the Grantor and the Bank and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Grantor may
not assign this Agreement in whole or in part without the Bank's prior written
consent and the Bank at any time may assign this Agreement in whole or in part.
20. Interpretation. In this Agreement, unless the Bank and the Grantor otherwise
agree in writing, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; 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"; references to articles, sections (or
subdivisions of sections) or exhibits are to those of this Agreement; and
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications to such instruments,
but only to the extent such amendments and other modifications are not
prohibited by the terms of this Agreement. Section headings in this Agreement
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose. Unless otherwise specified in this
Agreement, all accounting terms shall be interpreted and all accounting
determinations shall be made in accordance with GAAP. If this Agreement is
executed by more than one Grantor, the obligations of such persons or entities
will be joint and several.
21. Indemnity. The Grantor agrees to indemnify each of the Bank, each legal
entity, if any, who controls the Bank and each of their respective directors,
officers and employees (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 and
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party by any person, entity or governmental
authority (including any person or entity claiming derivatively on behalf of the
Grantor), in connection with or arising out of or relating to the matters
referred to in this Agreement or the Obligations, whether (a) arising from or
incurred in connection with any breach of a representation, warranty or covenant
by the Grantor, or (b) 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; provided, however, that the foregoing indemnity
agreement shall not apply to any 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 Agreement, payment of the Obligations and
assignment of any rights hereunder. The Grantor may participate at its expense
in the defense of any such claim.
22. Governing Law and Jurisdiction. This Agreement has been delivered to and
accepted by the Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS AGREEMENT WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, EXCEPT
THAT THE LAWS OF THE STATE WHERE ANY COLLATERAL IS LOCATED (IF DIFFERENT FROM
THE STATE WHERE SUCH OFFICE OF THE BANK IS LOCATED) SHALL GOVERN THE CREATION,
PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER ON SUCH PROPERTY OR
ANY INTEREST THEREIN. The Grantor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the county or judicial district
where the Bank's office indicated above is located; provided that nothing
contained in this Agreement will prevent the Bank from bringing any action,
enforcing any award or judgment or exercising any rights against the Grantor
individually, against any security or against any property of the Grantor within
any other county, state or other foreign or domestic jurisdiction. The Bank and
the Grantor agree that the venue provided above is the most convenient forum for
both the Bank and the Grantor. The Grantor waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE BANK IRREVOCABLY WAIVES
ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GRANTOR AND THE BANK ACKNOWLEDGE THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
The Grantor acknowledges that it has read and understood all the provisions of
this Agreement, 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.
WITNESS / ATTEST:
Media Sciences International, Inc.
____________________________________ By:_________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
PNC BANK, NATIONAL ASSOCIATION
By:__________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT "A"
TO SECURITY AGREEMENT
1. Grantor's form of organization (i.e., corporation, partnership, limited
liability company):
corporation
2. Grantor's State of organization, if a registered organization (i.e.,
corporation, limited partnership or limited liability company):
New Jersey
3. Grantor's principal residence, if a natural person or general partnership:
N/A
4. Address of Grantor's chief executive office, including the County:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
5. Grantor's EIN, if not a natural person:
00-0000000
6. Grantor's SSN, if a natural person:
N/A
7. Grantor's organizational ID# (if any exists):
N/A
8. Address for books and records, if different:
00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, XX 00000
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-xxxxxxxxx 2005
9. Addresses of other Collateral locations, including Counties, for the past
five (5) years:
Alpha Warehousing, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
10. Name and address of landlord or owner if location is not owned by the
Grantor:
Allendale Associates, 00 Xxxxx 00, Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
JVNJ REALTY CORP, 0000 Xxxx Xxxxx Xxxxxxxxx, #0000, Xxxxxx, Xxxxxxx 00000
11. Other names or tradenames now or formerly used by the Grantor:
N/A
12. List of all existing Commercial Tort Claims (by case title with court and
brief description of claim):
N/A
Guaranty and Suretyship
Agreement
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of this 16th day of December, 2004, by Media Sciences
International, Inc., a Delaware corporation (the "Guarantor"), with an address
at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, in consideration of the extension of
credit by PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address at Xxx
Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000, to Media Sciences,
Inc., a New Jersey corporation, and Cadapult Graphic Systems, Inc., a New Jersey
corporation (each the "Borrower"), and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby unconditionally
guarantees, and becomes surety for, the prompt payment and performance of all
loans, advances, debts, liabilities, obligations, covenants and duties owing by
the Borrower to the Bank 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 Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
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, whether or not (i) evidenced by any note,
guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension
of credit, opening of a letter of credit, loan, equipment lease or guarantee,
(v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, or (vii) arising out of overdrafts on deposit or other accounts or
out of electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Bank to receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account, or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository or other similar arrangements; and any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection and otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses
(hereinafter referred to collectively as the "Obligations"). If the Borrower
defaults under any such Obligations, the Guarantor will pay the amount due to
the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of
collection and the Bank shall not be required or obligated, as a condition of
the Guarantor's liability, to make any demand upon or to pursue any of its
rights against the Borrower, 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 Bank has terminated this Guaranty. This
Guaranty will remain in full force and effect even if there is no principal
balance 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 Bank of any other party, or any other guaranty or
any security held by it for any of the Obligations, by any failure of the Bank
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 recoupment,
deduction or defense based upon any claim the Guarantor may have (directly or
indirectly) against the Borrower or the Bank, except payment or performance of
the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to
the Borrower from time to time, notice of default, diligence, presentment,
notice of dishonor, protest, demand for payment, and any defense based upon the
Bank's failure to comply with the notice requirements under Sections 9-611 and
9-612 of the Uniform Commercial Code as in effect from time to time are hereby
waived. The Guarantor waives all defenses based on suretyship or impairment of
collateral.
The Bank 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 Borrower in such order, manner and
amount as the Bank may determine in its sole discretion; (d) settle, compromise
or deal with any other person, including the Borrower or the Guarantor, with
respect to any Obligations in such manner as the Bank 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 Bank. If any demand is made at any time
upon the Bank for the repayment or recovery of any amount received by it in
payment or on account of any of the Obligations and if the Bank 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 Bank. 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 Bank's rights hereunder and will be deemed to
have been conditioned upon such payment having become final and irrevocable.
4. Financial Statements. Unless compliance is waived in writing by the Bank
or until all of the Obligations have been paid in full, the Guarantor will
promptly submit to the Bank such information relating to the Guarantor's affairs
(including but not limited to annual financial statements and tax returns for
the Guarantor) or any security for the Guaranty as the Bank may reasonably
request.
In the event that any such information submitted to the Bank has been
prepared by an outside accountant, the same shall be accompanied by a statement
in writing signed by the accountant disclosing that the accountant is aware that
the information prepared by the accountant would be submitted to and relied upon
by the Bank in connection with the Bank's determination to grant or continue
credit.
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 Borrower that may result from any such proceeding.
The Guarantor expressly waives the effect of any statute of limitations or
other limitations on any actions under this Guaranty.
6. Events of Default. The occurrence of any of the following shall be an
"Event of Default": (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
Bank under any of the Obligations that have a demand feature; (iv) the
Guarantor's failure to perform any of its obligations hereunder which calls for
the payment of money when such money is due or the Guarantor's failure to keep,
observe or perform any of the other undertakings, conditions, stipulations,
agreements, covenants or obligations of the Borrower as set forth in this
Agreement, and such failure continues for twenty (20) days after the receipt of
written notice from the Bank; (v) the falsity, inaccuracy or material breach by
the Guarantor of any written warranty, representation or statement made or
furnished to the Bank 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 Bank the amount of the Obligations;
or (b) on demand of the Bank, the Guarantor shall immediately deposit with the
Bank, in U.S. dollars, all amounts due or to become due under the Obligations,
and the Bank may at any time use such funds to repay the Obligations; or (c) the
Bank 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 Bank 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 Bank by
law, the Bank shall have, with respect to the Guarantor's obligations to the
Bank 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 grants Bank a security interest in, and hereby assigns,
conveys, delivers, pledges and transfers to the Bank 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 Bank 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 Bank, although the Bank
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
Bank and by such other collateral as previously may have been or may in the
future be granted to the Bank to secure any Obligations of the Guarantor to the
Bank.
9. Costs. To the extent that the Bank 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 reasonable 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 Default Rate (as defined in any of the Obligations).
10. Postponement of Subrogation. Until the Obligations are indefeasibly
paid in full, expire, are terminated and are not subject to any right of
revocation or rescission, the Guarantor postpones and subordinates in favor of
the Bank or its designee (and any assignee or potential assignee) any and all
rights which the Guarantor may have to (a) assert any claim whatsoever against
the Borrower based on subrogation, exoneration, reimbursement, or indemnity or
any right of recourse to security for the Obligations with respect to payments
made hereunder, and (b) any realization on any property of the Borrower,
including participation in any marshalling of the Borrower's assets.
11. 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 Bank and the Guarantor 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
addresses for the Bank and the Guarantor as set forth above or to such other
address as either may give to the other for such purpose in accordance with this
section.
12. Preservation of Rights. No delay or omission on the Bank'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 Bank's
action or inaction impair any such right or power. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity.
The Bank may proceed in any order against the Borrower, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
13. Illegality. If any provision contained in this Guaranty should be
invalid, illegal or unenforceable in any respect, it shall not affect or impair
the validity, legality and enforceability of the remaining provisions of this
Guaranty.
14. Changes in Writing. No modification, amendment or waiver of, or consent
to any departure by the Guarantor from, any provision of this Guaranty will be
effective unless made in a writing signed by the Bank, 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 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 Bank 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 Bank.
16. Successors and Assigns. This Guaranty will be binding upon and inure to
the benefit of the Guarantor and the Bank 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 Bank's prior
written consent and the Bank at any time may assign this Guaranty in whole or in
part.
17. Interpretation. In this Guaranty, unless the Bank 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 of this Guaranty. 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 Bank, each
legal entity, if any, who controls the Bank and each of their respective
directors, officers and employees (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 and preparation therefor) which any Indemnified Party may incur or
which may be asserted against any Indemnified Party by any person, entity or
governmental authority (including any person or entity claiming derivatively on
behalf of the Guarantor), in connection with or arising out of or relating to
the matters referred to in this Guaranty, whether (a) arising from or incurred
in connection with any breach of a representation, warranty or covenant by the
Guarantor, or (b) 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; provided, however, that the foregoing indemnity
agreement shall not apply to any 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 and assignment of any rights hereunder.
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 Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS GUARANTY WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE BANK AND THE GUARANTOR DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE WHERE THE BANK'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 Bank's office indicated above is located; provided
that nothing contained in this Guaranty will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Guarantor individually, against any security or against any property of 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 Bank 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. Authorization to Obtain Credit Reports. By signing below, each
Guarantor who is an individual provides written authorization to the Bank or its
designee (and any assignee or potential assignee) to obtain the Guarantor's
personal credit profile from one or more national credit bureaus. Such
authorization shall extend to obtaining a credit profile in considering this
Guaranty and subsequently for the purposes of update, renewal or extension of
such credit or additional credit and for reviewing or collecting the resulting
account.
22. 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 RELATING 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
VOLUNTARY.
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.
____________________________________ By:_________________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
