PNC LEASING CORP
PNCBANK
Master Lease Agreement Lease No. 436
This Master Lease Agreement ("Lease") is made this 27th day of January, 1997, by
and between PNC LEASING CORP (the "Lessor"), a subsidiary of PNC Bank, National
Association (the "Bank"), with an address at Two PNC Plaza, 13th Floor, 000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and THE CARBIDE/GRAPHITE GROUP,
INC. (the "Lessee") with its address at Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxx, XX 00000.
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, all the machinery, equipment and other personal property (individually
an "Item of Equipment" and collectively the "Equipment") described in Schedules
of Leased Equipment which are or may from time to time hereafter be executed by
Lessor and Lessee and attached hereto or incorporated herein by reference
("Schedules") upon the terms and conditions set forth in this Lease. When used
herein the term "Equipment" shall be deemed to refer to the Equipment described
in a specific Schedule, unless the context clearly indicates otherwise. The
invalidation, fulfillment, waiver, termination, or other disposition of any
rights or obligations of either the Lessee or Lessor, or both of them, arising
from the execution of this Lease in conjunction with any Schedule shall not
affect the status of the rights and/or obligations with either or both of the
parties arising from the execution of this Lease in conjunction with any other
Schedule, so long as the Lessee has not defaulted under the terms and conditions
of this Lease or any Schedule. In the event of any such default by Lessee,
Lessor may declare this Lease and any Schedule to be in default hereunder and
the Lessor may proceed with its remedies against the Lessee in accordance with
paragraph 23 herein, with respect to any particular Schedule or all Schedules.
An executed counterpart of this Lease (including any Schedules, supplements,
amendments, addenda or riders thereto) or a photocopy thereof, together with an
executed original of any numbered Schedule marked "Lessor", shall be the
original "lease" for the Equipment described in such Schedule and together they
shall constitute a separate and enforceable lease. All other executed
counterparts of such numbered Schedule shall be marked and considered a
"Duplicate". To the extent this Lease constitutes chattel paper, as that term is
defined in the Uniform Commercial Code as adopted and in effect in the
Commonwealth of Pennsylvania ("UCC"), no security interest in the Lease may be
created through the transfer of possession of any counterpart other than the
Lessor copy of the numbered Schedule.
2. TERM. The obligations of the parties under this Lease commence upon the
written acceptance hereof by Lessor and shall end upon full performance and
observance of each and every term, condition and covenant set forth in this
Lease and any extensions hereof. The rental term for Equipment listed in each
Schedule shall commence on the date indicated on such Schedule and shall
terminate on the last day of the term stated in such Schedule. Any interim
rental term shall also be set forth in any such Schedule as appropriate.
3. RENT. The rent, including interim rental payments, for the Equipment
described in each Schedule shall be the amount stated in such Schedule. Rent is
an absolute obligation of Lessee due upon the inception of each base or interim
rental term and payable as specified in each applicable Schedule irrespective of
any claims, demands, set-offs, actions, suits or proceedings that Lessee may
have or assert against Lessor or any vendor of Equipment. Rent and interim rent
shall be payable to Lessor at X.X. Xxx 000000, Xxxxxxxxxx, XX 00000-0000, or at
such other place as Lessor or its assigns may designate in writing to Lessee
from time to time.
4. DELINQUENT RENT PENALTY. Each rent or interim rent installment or other
amount due hereunder not paid when due shall bear interest from such due date
until paid at the highest contractual rate enforceable against Lessee under
applicable law but never at a rate higher than five percent (5%) of the amount
due. Such delinquent interest shall be payable upon demand. Interest shall
accrue at said rate whether or not judgment hereon has been entered.
5. DELIVERY AND INSTALLATION. Lessee will select the type, quantity and supplier
of the Equipment, and in reliance thereon, the Equipment will then be ordered by
Lessor from such supplier, or Lessor may at its option elect to accept from
Lessee an assignment of any existing purchase order. Lessor shall not be liable
for loss or damage occasioned by any cause, circumstance or event of whatsoever
nature, including, but not limited to, failure of or delay in delivery, delivery
to wrong location, delivery of improper equipment or property other than the
Equipment, defects in or damage to the Equipment, governmental regulations,
strikes, embargoes or other causes, circumstances or events whether of a like or
unlike nature. In the event that the cost of any Item the Equipment differs from
the price set forth in the purchase order therefor, the monthly rental shall be
changed accordingly to fully reflect any such difference.
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6. WARRANTY OF LESSEE'S QUIET POSSESSION. Lessor warrants and covenants that so
long as Lessee faithfully performs this Lease, Lessee, subject to the disclaimer
of warranties set forth immediately below, may quietly possess and use the
Equipment without interference by the Lessor, or by any party claiming by or
through the Lessor.
7. DISCLAIMER OF WARRANTIES. THE LESSEE ACKNOWLEDGES AND AGREES THAT (i) THE
EQUIPMENT AND EACH PART THEREOF IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE
SELECTED BY AND ACCEPTABLE TO THE LESSEE, (ii) THE LESSEE IS SATISFIED THAT THE
EQUIPMENT AND EACH PART THEREOF IS SUITABLE FOR ITS RESPECTIVE PURPOSE, (iii)
THE LESSOR IS NOT A MERCHANT, MANUFACTURER OR A DEALER IN PROPERTY OF SUCH KIND,
(iv) THE EQUIPMENT AND EACH PART THEREOF IS LEASED HEREUNDER SUBJECT TO ALL
APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS NOW IN EFFECT OR HEREAFTER ADOPTED
AND IN THE STATE AND CONDITION WHEN THE SAME FIRST BECAME SUBJECT TO THIS LEASE,
WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND BY THE LESSOR, AND (v) THE LESSOR
LEASES THE EQUIPMENT, AS IS, WITHOUT WARRANTY OR REPRESENTATION EITHER EXPRESS
OR IMPLIED, AS TO (A) THE CONDITION, FITNESS, DESIGN, QUALITY, CAPACITY,
WORKMANSHIP, OPERATION, AND MERCHANTABILITY OF THE EQUIPMENT, (B) THE LESSOR'S
TITLE THERETO, OR (C) ANY OTHER MATTER WHATSOEVER, IT BEING AGREED THAT ALL SUCH
RISKS, AS AMONG THE LESSOR AND THE LESSEE, ARE TO BE BORNE BY THE LESSEE, AND
THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF LESSOR ARE
HEREBY WAIVED BY LESSEE. Lessor is not responsible or liable for any direct,
indirect, incidental, or consequential damage to, or loss resulting from, the
installation, operation, or use of the Equipment or any product manufactured
thereby. The Lessee's recourse for breach of any representation or warranty of
the vendor or supplier is limited to such vendor or supplier. Lessee will be
subrogated to Lessor's claims, if any, against the manufacturer or supplier of
the Equipment for breach of any warranty or representation and, upon written
request from Lessee, Lessor shall take all reasonable action requested by Lessee
to enforce any such warranty, express or implied, issued on or applicable to any
of the Equipment, which is enforceable by Lessor in its own name, provided,
however, that (a) Lessee is not in default under this Lease and (b) Lessor shall
not be obligated to resort to litigation to enforce any such warranty unless
Lessee shall pay all expenses in connection therewith. Notwithstanding the
foregoing, Lessee's obligations to pay the rentals or otherwise under this Lease
shall be and are absolute and unconditional. All proceeds of any such warranty
recovery from the manufacturer or supplier of the Equipment shall first be used
to repair the affected Equipment.
8. NATURE OF EQUIPMENT. The Equipment shall remain personal property,
notwithstanding the manner in which it may be affixed to any real property.
Lessee shall obtain and cause to be recorded, where appropriate, at its own
expense, from each landlord, owner, mortgagee or any person having an
encumbrance or lien upon the real property where the of Equipment is located, a
waiver of any lien, encumbrance or interest which such person might have or
hereafter obtain or claim with respect to the Equipment. Lessee, at its expense,
will protect and defend Lessor's title to the Equipment and will otherwise take
all action required to keep the Equipment free and clear of all claims, levies,
liens and encumbrances. Lessor assumes no liability and makes no representation
as to the treatment by Lessee of this Lease, the Equipment, or the rental
payments for financial accounting or tax purposes.
9. LESSOR'S RIGHT OF INSPECTION. Lessor, or its authorized agents, shall have
the right during normal business hours to enter upon the premises where the
Equipment is located (to the extent Lessee can permit) for the purpose of
inspection. Provided no Event of Default has occurred and is continuing, Lessor
shall provide Lessee prior notice of such inspection.
10. USE OF EQUIPMENT. Lessee represents that it is leasing the Equipment for a
business or commercial purpose and not for personal, family or household use.
Lessee must use the Equipment in a careful and proper manner in conformity with
(i) all statutes and regulations of each governmental authority having
jurisdiction over the Lessee and/or the Equipment and its use, and (ii) all
policies of insurance relating to the Equipment and/or its use. In addition,
Lessee shall not (i) use the Equipment in any manner that would impair the
applicability of manufacturer's warranties or render the Equipment unfit for its
originally intended use; nor (ii) permit anyone other than authorized and
competent personnel to operate the Equipment.
11. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall make
no alterations, modifications or attachments to the Equipment which impair the
economic value, economic and useful life, or functional utility of the
Equipment. All alterations, modifications and attachments of whatsoever kind or
nature made to the Equipment must be removed without damaging the functional
capabilities or economic value of the affected the Equipment upon the
termination of the Lease. Under no circumstances shall any such alteration,
modification or attachment be encumbered by Lessee or result in the creation of
a mechanic's or materialman's lien, excepting as may arise by operation of law
pending payment within ordinary business terms.
12. MAINTENANCE AND REPAIRS. At its expense Lessee shall maintain, operate,
repair and make all modifications to the Equipment in a manner consistent with
Lessee's general practice and in accordance with good industry practice,
manufacturer's warranty requirements and specifications and Lessee's established
operation, maintenance and repair programs, without discrimination as to
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leased equipment, so as to keep the Equipment in good working order, and so as
to comply with all applicable laws or applicable governmental actions and so as
not to incur liability (whether or not there is a lack of compliance) under any
environmental law or otherwise account for any release of, or exposure to, any
hazardous material. Lessor shall not be required to maintain, repair or replace
the Equipment or part thereto and Lessee hereby waives the right, however
arising, to (i) require Lessor to maintain, repair or replace any of the
Equipment or part thereto, or (ii) make repairs at the expense of the Lessor
pursuant to any applicable law at any time in effect. Lessor may review Lessee's
established operating procedures and maintenance records to assure compliance
with this section. Upon installation, title to replacement parts shall pass to
Lessor, and be deemed part of the Equipment.
13. RISK OF LOSS, DAMAGE AND THEFT.
(a) All risk of loss, damage, theft or destruction, partial or complete, to the
Equipment incurred or occasioned by any cause, circumstance or event of
whatever nature will be borne by Lessee from and after delivery of the
Equipment to a carrier FOB point of origin, whether the terms of shipment
require or authorize the Equipment to be shipped by carrier, to be
delivered to Lessee's place or places of business, or provide that Lessee
accept possession of or title to the Equipment at any other location.
Lessee shall promptly notify Lessor of any theft of or loss or damage to
the Equipment.
(b) Neither total nor partial loss of use or possession of the Equipment shall
xxxxx the rent.
(c) The Equipment shall be deemed subjected to total loss (i) if it has
disappeared regardless of the reason for disappearance or (ii) if it has
sustained physical damage and the estimated cost of repair exceeds 75% of
its fair market value on the date of damage. Lessee's duty to pay rent for
the Equipment subjected to total loss shall be discharged by paying to
Lessor, on demand, all accrued but unpaid rent for such Equipment as of the
date of disappearance or damage, plus the greater of: (i) Lessor's book
value of the Equipment, which shall be deemed to be the Equipment's cost as
set forth in the applicable Schedule minus straight-line depreciation based
on recognized physical life prorated to the date of disappearance or
damage, or (ii) the fair market value of the Equipment as of the date of
disappearance or damage. The amount of applicable insurance proceeds, if
any, actually received by Lessor shall be subtracted from the amount for
which Lessee is liable under this paragraph 13.
(d) Lessee shall cause the Equipment subjected to partial loss to be restored
to original capability. Lessor shall, upon receiving satisfactory evidence
of restoration, promptly pay to Lessee, or such other party as Lessee shall
direct, the proceeds of any insurance or compensation received by Lessor,
by reason of such partial loss.
(e) Lessor shall not be obligated to undertake the collection of any claim
against any person for either total or partial loss of the Equipment. After
Lessee discharges its obligations to Lessor under either paragraph 13(c) or
13(d) above, Lessee may, for Lessee's own account, proceed to recover from
third parties and shall be entitled to retain any amount recovered. Lessor
shall supply Lessee with any necessary assignment of claim.
(f) Notwithstanding anything to the contrary contained herein, so long as no
Event of Default has occurred and is continuing, Lessee shall have the
right, in connection with Minor Partial Losses, to (i) deal exclusively
with insurance carriers, (ii) settle or compromise claims and (iii)
receive, hold and use proceeds from insurance for the purpose of repairing
the Equipment to a condition resulting in the Equipment being of
substantially equal value after completion of such repairs to the value of
the Equipment prior to the Minor Partial Losses. Minor Partial Losses shall
be losses for which the Lessee reasonably estimates that no more than
$500,000.00 of insurance proceeds will be available for repair of the
Equipment.
14. INDEMNIFICATION.
(a) Non-Tax Liability. Lessee assumes liability for, and hereby agrees to
indemnify, protect and hold harmless, Lessor, its agents, servants,
employees, officers, successors and assigns (an "Indemnified Party") from
and against any and all liabilities, obligations, losses, damages,
injuries, claims, demands, penalties, actions, environmental hazards,
incidents or risks, costs and expenses, including reasonable attorney's
fees, of whatsoever kind and nature, whether or not known or unknown to
Lessor, at any time prior to the earlier of (a) the expiration of the lease
term or (b) return of the Equipment to the Lessor pursuant to the terms of
this Lease, (referred to herein collectively as "Losses" and individually
as a "Loss") arising out of the foregoing (i) the manufacture,
installation, use, condition (including, but not limited to, latent and
other defects and whether or not discoverable by Lessee or Lessor),
operation, ownership, selection, delivery, leasing, removal or return of
the Equipment, regardless of where, how and by whom operated, for any Loss
arising, or (ii) any failure on the part of Lessee to perform or comply
with any covenant or condition of this Lease.
(b) Direct Tax Costs. Lessee agrees to indemnify, protect, and hold harmless
each Indemnified Party, from and against any and all taxes, license fees,
assessments and other governmental charges, fees, fines or penalties of
whatsoever kind or character and by whomsoever payable, which are levied,
assessed, imposed or incurred during the lease term, (i) on or relating to
the Equipment, including any tax on the sale, ownership, use, leasing,
shipment, transportation, delivery or operation thereof, (ii) on the
exercise of any option, election or performance of any obligation by the
Lessee hereunder, (iii) of the kind generally referred to in items (i) and
(ii) above which may remain unpaid as of the date of delivery of the
Equipment to the Lessee irrespective of when the same may have been levied,
assessed, imposed or incurred, and (iv) by reason of all gross receipts and
like taxes on or measured by rents payable hereunder levied by any state or
local taxing authority having jurisdiction where the Equipment is located.
The Lessee agrees to comply with all state and local laws requiring the
filing of ad valorem tax returns relating to the Equipment. Any statements
for such taxes received by the Lessor shall be promptly forwarded to the
Lessee. This subparagraph shall not be deemed to obligate the Lessee
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to pay (i) any taxes, fees, assessments and charges which may have been
included in the Lessor's cost of the Equipment as set forth in Schedule(s)
hereto, or (ii) any income or like taxes against the Lessor on or measured
by the net income from the rents payable hereunder or capital stock,
franchise or similar tax. The Lessee shall not be obligated to pay any
amount under this subparagraph so long as it shall, at its expense and in
good faith and by appropriate proceedings, contest the validity or the
amount thereof unless such contest would adversely affect the title of the
Lessor to the Equipment or would subject the Equipment to forfeiture or
sale. The Lessee agrees to indemnify each Indemnified Party against any
loss, claim, demand and expense including legal expense resulting from such
nonpayment or contest.
(c) Indemnity Payment. The amount payable pursuant to subparagraphs 14(a) and
14(b) shall be payable upon demand of the Lessor accompanied by a statement
describing in reasonable detail such loss, liability, injury, claim,
expense or tax and setting forth the computation of the amount so payable.
(d) Survival. The indemnities and assumptions of liabilities and obligations
provided for in this paragraph 14 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
(e) Notwithstanding anything to the contrary contained herein, the
indemnifications provided in this Section 14 shall apply only as to those
Losses which occur prior to the earlier of (i) the return of the Equipment
to Lessor and (ii) the expiration of the Lease term (the "Indemnification
Period"); provided, however, nothing contained in this Subsection shall
limit the right of the Lessor to seek indemnification after the expiration
of the Lease term or the return of the Equipment to Lessor so long as the
Loss giving rise to a right of indemnification occurred during the
Indemnification Period.
15. LESSEE'S ASSIGNMENT. Without the prior written consent of the Lessor, which
shall not be unreasonably withheld or delayed, Lessee shall not assign, bail,
sublease, hypothecate, transfer or dispose of the Equipment or any interest in
this Lease nor impair the Lessor's title to the Equipment. In the event of a
proposed sublease, the Lessee shall be permitted to sublease all, but not less
than all, of the Equipment to a third party provided that Lessee has received
the prior written consent of Lessor, not to be unreasonably withheld or delayed,
as to the sublessee and as to all terms and conditions of the sublease and
provided that Lessee shall not be released or discharged from any of its
obligations hereunder. Lessee shall not assign this Lease, nor shall this Lease
or any rights under this Lease or in the Equipment inure to the benefit of any
trustee in bankruptcy, receiver, creditor, or other successor of Lessee whether
by operation of law or otherwise. Notwithstanding the preceding provisions of
this paragraph 15, provided that Lessee shall be the surviving entity and
continue to be in compliance with all terms, including, without limitation, all
financial covenants of this Lease immediately after such event, any transfer of
its rights and obligations hereunder resulting from the following events shall
be permitted without the consent of Lessor: (i) consolidations or mergers of
other entities into the Lessee or a subsidiary of the Lessee or (ii)
non-substantive intra- corporate restructuring such as a corporate name change
which does not negatively impact the ability of the Lessee to perform its
obligations hereunder or (iii) a transfer of Lessee's rights and interest
hereunder to an affiliate of Lessee, where both Lessee and the affiliate remain
liable for all obligations under the Lease.
16. LESSOR'S ASSIGNMENT. All rights of Lessor hereunder, in the rent and in the
Equipment may be assigned, pledged, mortgaged, transferred, or otherwise
disposed of, either in whole or in part, without notice to Lessee. No such
assignee shall be obligated to perform any duty, covenant, or condition required
to be performed by Lessor under the terms of this Lease unless such assignee
expressly assumes such obligations. Lessor shall remain liable to Lessee
hereunder to perform such duty, covenant, and condition unless such assignee
expressly assumes Lessor's obligations, in which event Lessee hereby releases
Lessor from such obligations. Such assignee shall have all rights, powers and
remedies given to Lessor by this Lease, and shall be named as lender loss payee
or co-insured under all policies of insurance maintained pursuant to paragraph
17 hereof. If Lessor assigns this Lease or the monies due or to become due
hereunder or any other interest herein, Lessee agrees not to assert against
Lessor's assignee any defense, set-off, recoupment, claim or counterclaim which
Lessee may have against Lessor, whether arising under this Lease or any other
transaction between Lessor and Lessee. Subject to paragraph 15 hereof and this
paragraph 16, this Lease inures to the benefit of, and is binding upon, the
heirs, legatees, personal representatives, successors and assigns of the parties
hereto.
17. INSURANCE. Lessee will at its own expense insure the Equipment in compliance
with the terms and conditions of the Schedule, in form satisfactory to Lessor
with insurance carriers approved by Lessor. The proceeds of any insurance claim
due to the theft or loss of or damage to the Equipment shall be applied as
provided in paragraph 13 hereof. In addition to the compliance with the terms
and conditions of the Schedule and the other terms and conditions of this
paragraph 17, the Lessee shall comply with the following conditions:
(a) Lessee, prior to the inception of the term, shall deliver to Lessor all
required policies of insurance or, in the alternative, other proper
evidence of insurance, which shall be sufficiently detailed to advise
Lessor of all types of coverage and inclusions;
(b) Lessee shall cause each insurer to agree by endorsement to the policies
that each insurer will give at minimum thirty (30) days' written notice to
Lessor before any policy will be altered or cancelled for any reason,
including, without limitation, failure of the Lessee to pay premiums;
(c) All coverage must be in effect upon delivery, or when Lessee assumes the
risk of loss, whichever is earlier, and will provide coverage without
geographic limitation;
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(d) All policies must provide that the Lessor is an additional insured for all
aspects of general liability insurance, and is lender loss payee for all
aspects of insurance relating to the theft or loss of or damage to the
Equipment;
(e) Lessee will furnish renewal policies or renewal evidence of insurance
listing Lessor as an additional insured and lender loss payee, as required
by this Lease, no later than thirty (30) days prior to the expiration of
any insurance required hereby.
18. ADDITIONAL DOCUMENTS. If Lessor shall so request, Lessee shall execute and
deliver to Lessor such documents, including UCC financing and continuation
statements, as Lessor shall deem necessary or desirable for purposes of
continuing this Lease or recording or filing to protect the interest of Lessor
in the Equipment. Any such filing or recording shall not be deemed evidence of
any intent to create a security interest. All filing fees and expenses shall be
borne by the Lessee.
19. FURNISHING FINANCIAL INFORMATION. During the term of this Lease and any
extensions or renewals hereof, Lessee will furnish to Lessor:
(a) Within 30 days after the end of each of the first three quarterly periods
of Lessee's fiscal year, a balance sheet, statement of cash flows and a
statement of income of Lessee as of the close of such quarterly period from
the beginning of the fiscal year to the date of such statement, prepared in
accordance with generally accepted accounting principles, consistently
applied, and in such reasonable detail as Lessor may request, certified as
true, complete and correct by an authorized officer of the Lessee.
(b) As soon as practicable, but in any event within 90 days after the end of
each fiscal year, a copy of its annual audit certified without
qualification by a certified public accountant selected by Lessee and
satisfactory to Lessor.
(c) In a timely manner such financial statements, reports and other information
as the Lessee shall send from time to time to its stockholders and/or file
with the Securities and Exchange Commission and/or other materials which
Lessor shall reasonably request. Lessee shall also promptly notify Lessor
of any material adverse change in Lessee's financial condition.
20. INCORPORATION OF COVENANTS BY REFERENCE. Any and all affirmative, negative
and financial covenants which may be set forth in any credit agreement, loan
agreement, promissory note, guaranty or other agreement, instrument or document
entered into between Lessee (or any of its affiliates) as borrower and any
affiliate of Lessor, as lender (the "Loan Documents"), are hereby incorporated
herein by this reference as if set forth herein at length, as any of the
foregoing may be amended or supplemented from time to time (the "Incorporated
Provisions"). Any amendments, modifications, waivers or other changes in the
terms of any of the Incorporated Provisions shall automatically constitute an
amendment to this Lease without any need for further action or documentation. If
any Loan Document terminates or otherwise ceases to be in full force and effect
(a "Termination"), all of the Incorporated Provisions of such Loan Document
shall survive the Termination and shall continue in full force and effect as a
part of this Lease. At any time after a Termination, Lessee shall promptly upon
Lessor's request execute and deliver to Lessor an amendment to this Lease, which
amendment will expressly incorporate into this Lease all or any number of the
Incorporated Provisions of the terminated Loan Document as Lessor in its sole
discretion shall select, as such Incorporated Provisions are in effect
immediately prior to the date of Termination.
21. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. If Lessee fails to promptly
perform any of its obligations under this Lease, Lessor may perform the same for
the account of Lessee without waiving Lessee's failure as a default. All sums
paid or expense or liability incurred by Lessor in such performance (including
reasonable legal fees) together with interest thereon at the highest contract
rate enforceable against Lessee, but never at a higher rate than fifteen percent
(15%) per annum simple interest, shall be payable by the Lessee upon demand as
additional rent.
22. EVENTS OF DEFAULT. Any of the following events or conditions shall
constitute an event of default ("Event of Default") hereunder and entitle the
Lessor, at its option, to avail itself of the remedies more fully set forth in
paragraph 23 hereof:
(a) Non-payment by Lessee of any rent or other amount provided for in this
Lease when due and such failure shall continue for a period of ten (10)
days;
(b) Failure of the Lessee to perform any of the non-monetary covenants,
obligations, terms or conditions of this Lease and, if remediable, such
failure shall continue unremedied for a period of thirty (30) days of
either (i) Lessee becoming aware of any such failure or (ii) written notice
from Lessor as to any such failure, provided, however that this thirty (30)
day grace period shall not be applicable to any failure whatsoever as to
(x) any and all environmental or insurance obligations under the terms of
the Lease or any Schedule, including, but not limited to, Paragraph 17
above or (y) as to defaults which can not be remedied by corrective action
by Lessee, as determined by Lessor in its sole discretion; provided further
if Lessor determines that such default is remediable but cannot reasonably
be cured within such 30 day period, then in such event Lessor shall notify
Lessee that Lessee shall not be in default hereunder so long as Lessee
commences corrective action and employs its best efforts to prosecute the
same to completion within a time period designated by Lessor, which shall
be no more than ninety (90) days unless Lessor in its sole discretion
permits a longer period of time for completion under the circumstances.
Notwithstanding the above, it shall be an event of default hereunder for
any such non-monetary obligation to occur twice in any twelve month period
during the term hereof;
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(c) The Lessee shall commence a voluntary case or other proceeding seeking
liquidation, reorganization, or other relief with respect to itself or its
debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect, or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the
appointment of or the taking possession by any official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of its creditors, or shall fail to pay its debts
as they become due, or shall take any corporate action authorizing any of
the foregoing;
(d) An involuntary case or other proceeding should be commenced against Lessee
seeking liquidation, reorganization, or other relief with respect to it or
its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of thirty (30) days;
(e) A final judgment for the payment of money in excess of $One Million Dollars
($1,000,000.00) is rendered against the Lessee, or any attachment
proceedings is instituted with respect to any significant portion of the
Lessee's assets or property, and the same shall remain undischarged for a
period of thirty (30) days during which execution shall not be effectively
stayed;
(f) The Lessee, or any guarantor of the Lease, or any affiliate of the Lessee,
shall default in the payment of principal and/or interest when due (whether
by acceleration or otherwise) or shall default in the performance of any
obligation or indebtedness owed to the Bank or to any subsidiary or
affiliate of the Bank, which obligation shall remain in default for lack of
performance or which indebtedness shall remain unpaid and unsatisfied
following the conclusion of any applicable grace period in respect to such
obligation or indebtedness;
(g) Any event described in subparagraphs 22(c) through 22(g) hereof shall occur
with respect to any guarantor or any other party liable for payment or
performance of this Lease;
(h) Any certificate, statement, representation, warranty or financial statement
heretofore or hereafter furnished pursuant to or in connection with this
Lease by or on behalf of Lessee or any guarantor or other party liable for
payment or performance of this Lease is false in any material respect at
the time as of which the facts therein set forth were stated or certified,
or omits any substantial contingent or unliquidated liability or claim
against Lessee or any such guarantor or other party, or, upon the date of
execution of this document or any Schedule, there shall have been any
materially adverse change in any of the facts disclosed by any such
certificate, statement, representation or warranty, which shall not have
been disclosed in writing to Lessor at or prior to the time of execution of
this document or such Schedule;
(i) An event of default shall have occurred under any other lease agreement
wherein Lessor is, at the time of such default, the "lessor" and Lessee is
the "lessee".
23. REMEDIES. Upon the happening of any Event of Default hereunder, the rights
and duties of the parties shall be as set forth in this paragraph. Lessor may
elect, in its sole discretion, to do one or more of the following upon the
occurrence of an Event of Default, and at any time thereafter:
(a) Upon written notice to the Lessee terminate this Lease as to any or all of
the Schedules then in effect;
(b) Demand that Lessee return the Equipment to the Lessor whereupon Lessee
shall promptly deliver the Equipment to Lessor at that place or those
places designated by Lessor. If Lessee does not so deliver the Equipment,
Lessee shall make the Equipment available for retaking and authorizes
Lessor, its employees and agents to enter the premises of the Lessee and
any other premises (insofar as Lessee can permit) for the purpose of
retaking. In the event of retaking, Lessee expressly waives all rights to
possession and all claims for injuries to persons or property suffered
through or loss caused by retaking. Any repossession accomplished under
this paragraph 23(b) shall not release Lessee from liability for damages of
Lessor sustained by reason of Lessee's default hereunder.
(c) Lessor may revoke Lessee's privilege of paying rent in installments causing
acceleration of all remaining rents through the remaining term of the
Lease, and, upon Lessor's demand, as liquidated damages, and not as a
penalty, the Lessee shall promptly pay to the Lessor the aggregate of (i)
all rent accrued and unpaid prior to the date of such Event of Default,
(ii) all future rent due through the end of the basic term or through the
end of the current renewal term, as the case may be, (iii) all costs and
expenses incurred by Lessor in the repossession, recovery, storage, repair,
inspection, appraisal, refurbishing, sale, release or other disposition of
the Equipment, (iv) reasonable attorney's fees and costs, including any
fees or costs incurred by Lessor in defending any action relating to this
Lease or participating in any bankruptcy or insolvency proceeding to which
Lessee is a party, or otherwise incurred due to Lessee's default, (v) the
estimated residual value of the Equipment as of the end of the current term
of the Lease, and (vi) any claim for indemnity, if any, in favor of Lessor
hereunder.
(d) In its sole discretion, Lessor may sell or release the Equipment or any
part thereof, at public auction or by private sale or lease at such time or
times and upon such terms as Lessor may determine, free and clear of any
rights of Lessee and, if notice thereof is required by law, any notice in
writing of such sale or lease by Lessor to Lessee given not less than ten
(10) days prior to the date thereof shall constitute reasonable notice
thereof to Lessee. All proceeds of the sale or releasing, or both, less (i)
all expenses incurred in retaking the Equipment, making necessary repairs
to the Equipment and enforcing this Lease, (ii) all damages that Lessor
shall have sustained by reason of Lessee's default, and (iii) reasonable
attorney's fees and expenses shall be credited against Lessee's liability
hereunder as and when received by Lessor. Sums in excess of Lessee's
liability shall belong to Lessor. The Lessee shall be liable for any
deficiency.
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(e) The provisions of this paragraph 23 shall not prejudice Lessor's right to
recover or prove damages for unpaid rent accrued prior to default, or bar
an action for a deficiency as herein provided, and the bringing of an
action with an entry of judgment against Lessee shall not bar the Lessor's
right to repossess any or all of the Equipment.
(f) Lessor's remedies shall be available to Lessor's successors and assigns,
shall be in addition to all other remedies provided to it under the UCC
(specifically, the remedies set forth in 13 Pa. C.S.ss.ss.2A523(a), (b) and
(c) or by any other applicable law, and may be exercised concurrently or
consecutively. LESSEE WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO JUDICIAL
HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY LESSOR IN THE
EVENT OF A DEFAULT HEREUNDER BY LESSEE. LESSEE HEREBY WAIVES ANY RIGHT TO
DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY
THE LESSOR OR THE LESSEE IN CONNECTION WITH THIS LEASE.
(g) No express or implied waiver by Lessor of any default(s) by Lessee shall
constitute a waiver of any other default(s) by Lessee or waiver of any of
Lessor's rights.
(h) Should Lessor exercise its right to accelerate rental amounts due hereunder
as a result of an Event of Default by Lessee, such sums payable in the
future shall be discounted to a present value, as of the date on which the
default occurred, using as the discount rate the discount rate of the
Federal Reserve Bank of Cleveland provided that such payment shall occur
within ten (10) business days of the demand.
24. LESSEE REPRESENTATIONS AND WARRANTIES. In order to induce Lessor to enter
into this Lease and to lease the Equipment to Lessee, Lessee represents and
warrants, as of the date hereof, and as of the date of execution of each
Schedule hereunder, that:
(a) The Lessee is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation with
corporate power and authority to conduct its business as such business is
presently being conducted, to own or hold property under lease and to enter
into and perform its obligations under this Lease. The Lessee is duly
qualified to do business and is in good standing as a foreign corporation
in all states where its failure to so qualify would have a material adverse
effect on its ability to perform its obligations under this Lease.
(b) The execution, delivery, and performance by the Lessee of this Lease and
all related instruments and the consummation by the Lessee of the
transactions contemplated hereby: (i) have been duly authorized by all
necessary corporate action on the part of the Lessee, (ii) do not require
any stockholder approval or the consent of any trustee or holder of any
indebtedness or obligation of the Lessee (or, if so required, such approval
or consent has been obtained), (iii) do not and will not result in any
material violation of any term of any agreement, instrument, judgment,
decree, franchise, permit, order, law, statute, rule, or governmental
regulation presently applicable to it, (iv) is not in conflict with and
does not constitute a default under any of the terms or provisions of, or
subject the leased Equipment or any part thereof to any lien of, any
indenture, mortgage, lease, contract, or other agreement or instrument
(other than this Lease) to which the Lessee is a party or by which it or
its property is bound or affected, and (v) does not and will not contravene
Lessee's articles of incorporation and by-laws.
(c) The execution, delivery, and performance by the Lessee of this Lease and
all related instruments and documents does not require any consent,
authorization, or approval of, any filing of or registration with, or other
action in respect to any federal, state, governmental authority or agency,
or, if so required, the same have been obtained.
(d) This Lease and all related instruments and documents have been duly
executed and delivered by the Lessee, and assuming the due authorization,
execution, and delivery by the other party thereto, constitute legal,
valid, and binding agreements of the Lessee enforceable against the Lessee
in accordance with their terms.
(e) There are no pending actions or proceedings to which Lessee is a party, and
there are no other pending or threatened actions or proceedings of which
Lessee has knowledge, before any court, arbitrator, or administrative
agency, which either individually or in the aggregate, would materially
adversely affect the financial condition of Lessee, or the ability of
Lessee to perform its obligation hereunder. Further, Lessee is not in
default under any material obligations for the payment of borrowed money,
for the deferred purchase price of property or for the payment of any rent
which, either individually or in the aggregate, would have the same such
effect.
(f) It is intended that under the laws of the state(s) in which the Equipment
is to be located, the Equipment consists solely of personal property for
all purposes and Lessee hereby covenants not to take any action
inconsistent with this intent;
(g) The financial statements of Lessee (copies of which have been furnished to
Lessor) have been prepared in accordance with generally accepted accounting
principles consistently applied, and accurately and completely present
Lessee's financial condition and the results of its operations as of the
date of and for the period covered by such statements in all material
respects, and since the date of such statements there has been no material
adverse change in such conditions or operations.
(h) The address stated on page one of this Lease is the chief place of business
and chief executive office of Lessee; and the Lessee does not conduct
business under a trade, assumed, or fictitious name.
25. FINANCE LEASE.
(a) Acknowledgment. The Lease is intended as a "Finance Lease" as that term is
defined in Section 2A103 of the UCC. Lessee acknowledges that Lessor has
not selected, manufactured or supplied the Equipment; that Lessor has
acquired the Equipment
Page 7 of 9
at the direction of the Lessee and solely for the purpose of leasing the
Equipment to the Lessee; and that (i) Lessee has selected the supplier or
vendor of the Equipment, (ii) as provided in paragraph 7, Lessee is
entitled to directly enforce against the supplier or vendor of the
Equipment, any and all warranties and promises made to the Lessor by the
supplier or vendor, and (iii) Lessee may communicate directly with the
vendor or supplier to obtain a complete and accurate statement of all such
warranties or promises, including any disclaimers or limitations thereof.
(b) Waiver of Certain of Lessee's Remedies. In recognition that this is a
Finance Lease and that the Lessor has not sold, selected or delivered the
Equipment to the Lessee and has made no warranties or representations in
respect thereto, to the extent permitted by applicable law, Lessee, for
itself and for its successors and assigns, hereby waives any and all rights
or remedies afforded a lessee by Sections 2A503 through 2A522 inclusive, of
the UCC, including, without limitation, Lessee's right to (i) cancel,
terminate or repudiate this Lease or any Schedules hereto; (ii) reject or
revoke acceptance of the Equipment; (iii) recover damages from Lessor for
any breach of warranty or representation in respect to the Equipment; (iv)
assert any security interest in the Equipment in Lessee's possession or
control; (v) deduct, recoup or offset of any claimed damages due to
Lessor's default; (vi) accept partial delivery of the Equipment or to
"cover" by purchasing or leasing replacement equipment; (vii) recover any
general, incidental or consequential damages (including without limitation,
expenses and commissions in connection with the inspection, receipt, caring
for, storing, repair or disposal of any Equipment; or (viii) assert a claim
by way of replevin, detinue, sequestration, claim, delivery, or the like,
for any Equipment.
26. GOVERNING LAW AND CONSENT OF JURISDICTION. This Lease has been delivered and
accepted in the Commonwealth of Pennsylvania. The laws and decisions of said
Commonwealth (including, without limitation, as to the statute of limitations)
will govern and control the construction, enforceability, validity and
interpretation of this Lease, and of all agreements, instruments and documents,
heretofore, now or hereafter executed by Lessee and delivered to Lessor
pertaining or relating to this Lease or the transactions contemplated herein.
The parties agree that any action or proceeding arising out of or relating to
this Lease may be commenced in the Court of Common Pleas of Allegheny County,
Pennsylvania, or in the United States District Court for the Western District of
Pennsylvania and Lessee agrees that, in addition to any other manner of service
prescribed by law or rule of court, a summons and complaint commencing an action
or proceeding in either such Court shall be properly served upon Lessee and
shall confer personal jurisdiction if served personally or by United States
registered mail, return receipt requested, to the Lessee at the address
indicated on the first page of the Lease.
27. CONFLICT OF PROVISIONS. In the event of any conflict of provisions between
any Schedule and this document or between any Schedule and any other document,
the provisions of the Schedule shall control.
28. AMENDMENTS AND WAIVERS. This document, the Schedule(s), the Addendum(s) and
the Acceptance(s) executed by Lessor and Lessee constitute the entire agreement
between Lessor and Lessee with respect to the Equipment and the subject matter
of this Lease. No term or provision of this Lease may be changed, waived,
amended or terminated except by a written agreement signed by both Lessor and
Lessee, except that Lessor may insert on the appropriate Schedule the serial
numbers of the Equipment after delivery thereof. No express or implied waiver by
Lessor of any Event of Default hereunder shall in any way be, or be construed to
be, a waiver of any future and/or subsequent Event of Default whether similar in
kind or otherwise.
29. NOTICES. Except as otherwise provided in paragraph 26 above, service of all
notices under this Lease shall be sufficient if given personally, sent via
facsimile with confirmation of receipt, sent via overnight courier, or sent
certified mail, return receipt requested, to the party involved at its
respective address set forth in the most recent Schedule relating hereto, or at
such address as such party may otherwise provide in writing from time to time.
Any such notice mailed to such address shall be effective when deposited in the
United States mail, duly addressed with first-class postage prepaid.
30. MISCELLANEOUS
(a) Whenever the context of this Lease requires, the neuter gender includes the
masculine and feminine, and the singular number includes the plural.
Whenever the word Lessor is used herein, it shall include all assignees of
Lessor. If there is more than one Lessee named in this Lease, the liability
of each shall be joint and several.
(b) The titles to the paragraphs of this Lease are solely for the convenience
of the parties, shall not be deemed to constitute a part hereof, and are
not an aid in the interpretation of the document.
(c) Time is of the essence in the performance of this Lease and each and all of
its provisions.
(d) If any provision of this Lease is held invalid or unenforceable, the
remaining provisions will not be affected thereby, and to this end, the
provisions of this Lease are declared severable.
(e) As used herein "Lessee," if there be more than one, shall mean all Lessees,
or each of them, and in such case they are jointly and severally bound.
Page 8 of 9
31. SECURITY INTEREST. If the Lease is deemed at any time to be a lease intended
as security, Lessee hereby grants to the Lessor a security interest in the
Equipment to secure all sums due hereunder, as well as any other obligations or
sums due by Lessee to Lessor, whether now existing or hereafter contracted for
or hereafter arising.
WITNESS the due execution hereof with the intent to be legally bound.
ATTEST/WITNESS:
THE CARBIDE/GRAPHITE GROUP, INC., LESSEE
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
Title: Title: Chairman and CEO
Accepted at Pittsburgh, Pennsylvania by:
PNC LEASING CORP - LESSOR
By: /s/ R. Xxxxxxx Xxxxx
Title: Vice President
0788/U.60
final
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