{"id":42635,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/operating-agreement-pitney-bowes-credit-corp-and-imagistics.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"operating-agreement-pitney-bowes-credit-corp-and-imagistics","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/operating-agreement-pitney-bowes-credit-corp-and-imagistics.html","title":{"rendered":"Operating Agreement &#8211; Pitney Bowes Credit Corp. and Imagistics International Inc."},"content":{"rendered":"<pre>                               OPERATING AGREEMENT\n\n\n                                     BETWEEN\n\n\n                         PITNEY BOWES CREDIT CORPORATION\n\n\n                                       AND\n\n\n                          IMAGISTICS INTERNATIONAL INC.\n\n\n\n                               DATED AND EFFECTIVE\n\n                             AS OF NOVEMBER 1, 2001\n\n\n                               OPERATING AGREEMENT\n\nTHIS OPERATING AGREEMENT dated and effective as of November 1, 2001 is made by\nand between PITNEY BOWES CREDIT CORPORATION, a Delaware corporation (\"PBCC\"),\nand IMAGISTICS INTERNATIONAL INC. a Delaware corporation (\"Imagistics\").\n\nWHEREAS, Imagistics is in the business, inter alia, of marketing certain\nequipment, products or services to creditworthy entities; and\n\nWHEREAS, PBCC is in the business, inter alia, of providing financing to third\nparties for the acquisition of equipment by rental, lease or lease-purchase, and\nPBCC and Imagistics have agreed to enter into a business relationship pursuant\nto which PBCC will provide financing to selected customers of Imagistics to\nfacilitate each such customer's acquisition of Equipment by Lease; and\n\nWHEREAS, the parties desire to set forth in this Agreement the definitive terms\nand conditions on which PBCC will provide financing to Lessees through\nImagistics' account executives, customer service representatives and other\nemployees or agents (\"Marketers\").\n\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency\nof which are acknowledged, and intending legally to be bound, Imagistics and\nPBCC hereby agree as follows:\n\n1. CERTAIN DEFINITIONS; INTERPRETATION. (a) Unless the context otherwise clearly\nrequires, the following terms have the respective meanings set forth below for\nall purposes of this Agreement:\n\n\"Acceptance Certificate\" shall have the meaning assigned to such term in Section\n7(c) hereof.\n\n\"Aggrieved Party\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"Agreement\" means this Operating Agreement between PBCC and Imagistics, together\nwith all exhibits and attachments hereto, as each may be supplemented and\namended from time to time in accordance with the terms hereof.\n\n\"Business Day\" means any day of the week except Saturday, Sunday or any\nstatutory or civic holiday on which banks in New York, New York or Stamford,\nConnecticut are permitted or required to close.\n\n\"Credit Request\" means a fully completed request for financing under the\nFinancing Program, made by Imagistics on behalf of a customer of Imagistics, and\ncontaining information relating to such customer's financial status, credit\nhistory, form of organization and such other matters as may be deemed necessary\nby PBCC to evaluate such customer's participation in the Financing Program.\n\n\n\"Defaulting Party\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"EMA Contract\" shall have the meaning assigned to such term in Section 12(a)\nhereof.\n\n\"Effective Date\" means the later of the date set forth above and the date on\nwhich all of the legal and regulatory conditions precedent to the separation of\nImagistics from Pitney Bowes Inc. have been satisfied.\n\n\"Equipment\" means all of the items of equipment, firmware and software leased to\na customer of Imagistics pursuant to a Lease, as more fully described in such\nLease.\n\n\"Fair Market Value\" shall have the meaning assigned to such term in Section 16\nhereof.\n\n\"Financing Program\" means the business relationship established by this\nAgreement, whereby PBCC will be the primary exclusive provider of financing for\nthe acquisition by Lessees of Equipment, pursuant to the leasing programs set\nforth in Exhibit B, which may be modified from time to time by mutual agreement\nof the parties.\n\n\"LCR Purchase Price\" shall have the meaning assigned to such term in Section 11\nhereof.\n\n\"Lease\" means each of the rental, lease or lease-purchase contracts, together\nwith all schedules, exhibits and attachments thereto, entered into from time to\ntime by PBCC, as lessor, and a customer of Imagistics, as lessee.\n\n\"Lessee\" means each customer of Imagistics who obtains financing from PBCC for\nits acquisition of Equipment pursuant to a Credit Request provided to PBCC by\nImagistics.\n\n\"Marketers\" shall have the meaning assigned to such term in the recitals hereof.\n\n\"Responsible Officer\" means an individual employee of a party who is\nspecifically authorized by such party to enter into agreements and make\ndecisions on behalf of such party. The parties acknowledge and agree that a\nResponsible Officer may be authorized only to the extent that an agreement or\ndecision relates to a particular subject matter or for a limited dollar amount.\nEach party shall designate in writing to the other the name of the designating\nparty's Responsible Officer(s).\n\n\"Standard of Conduct\" shall have the meaning assigned to such term in Section 22\nhereof.\n\n\"Targeted Service Levels\" shall have the meaning assigned to such term in\nSection 19 hereof.\n\n\"Technical Services\" shall have the meaning assigned to such term in Section 9\nhereof.\n\n\"Termination Event\" shall have the meaning assigned to such term in Section 23\nhereof.\n\n\"Transition Period\" means, with respect to the performance of any of the\nobligations of a party hereunder, the period from the Effective Date through\nDecember 31, 2001 or such later date as the parties may agree is applicable to a\nspecific obligation.\n\n\n                                        2\n\n\n     (b) The following rules of interpretation apply: (i) the term \"including\"\nand its derivatives mean \"including, without limitation\" unless the context\nclearly states otherwise; (ii) words importing the singular include the plural\nand vice versa; (iii) words of the masculine gender shall be deemed to include\nthe correlative words of the feminine gender; (iv) words importing persons\ninclude firms, associations, limited liability companies, partnerships, trusts,\ncorporations and other legal entities, including public bodies, as well as\nnatural persons; and (v) all references to a number of days mean calendar days,\nunless expressly indicated otherwise.\n\n2. TERM; RELATIONSHIP. (a) This Agreement will begin on the date set forth above\nand will continue for a period of five years from the Effective Date, unless\nearlier terminated in accordance with the terms hereof or extended by mutual\nagreement of the parties. Except as may be provided in Exhibit A hereto, the\nterms of this Agreement will only apply to Leases entered into after the\nEffective Date hereof.\n\n     (b) Either party may terminate this Agreement, effective as of any date\nwhich falls not less than twelve months after the Effective Date, by giving not\nless than three months prior written notice to the other of its election to so\nterminate this Agreement.\n\n     (c) It is understood and agreed that at no time will this Agreement be\ndeemed to create a partnership, joint venture, syndication, employment contract\nor any other relationship between the parties other than that of independent\ncontractors. Neither party shall have the power to obligate or bind the other\nparty. The parties agree that it is their intention that PBCC be the primary\nexclusive provider of financing to customers of Imagistics during the term of\nthis Agreement, it being understood and agreed that PBCC shall have a right of\nfirst refusal to offer financing to customers of Imagistics for all Leases of\nEquipment, as well as for all other programs and services from time to time\noffered by Imagistics; provided, however, that PBCC shall have no right of first\nrefusal with respect to financing extended to a customer who has an alternative\nfinancing source other than PBCC and has requested that it receive financing\nfrom such alternative source Further, it is the intention of the parties that\nthe terms on which PBCC offers lease financing to prospective Lessees,\nincluding, without limitation, the pricing, service standards, advances with\nrespect to charges for equipment maintenance, fees, charges, residual values and\ncredit approvals and rates, will, taken as a whole, be competitive with those\noffered by other lessors financing similar equipment under similar\ncircumstances; provided, however, that anything to the contrary contained herein\nnotwithstanding, the failure of PBCC to offer competitive pricing as aforesaid\nshall not constitute a Termination Event: (i) during the Transition Period; (ii)\nunless the same is material with respect to the Financing Program; and (iii)\nuntil such time as the Chief Executive Officers of Pitney Bowes Inc. and\nImagistics shall have conferred and been unable to reach a satisfactory\nresolution with respect to the relevant issues.\n\n     (d) Each of the parties acknowledges and agrees that: (i) it will use\ncommercially reasonable efforts to cause the Financing Program established by\nthis Agreement to be successful and mutually beneficial to both parties; (ii) it\nwill deal openly and fairly with the other party in good faith; and (iii) it\nwill cause its Responsible Officers to establish clear objectives and\nresponsibilities with respect to the Financing Program.\n\n3. EQUIPMENT. (a) The Equipment to be financed by PBCC pursuant to the terms of\nthis\n\n\n                                       3\n\n\nAgreement consists of copiers, multifunctional copiers and facsimile machines,\nincluding those offered or sold by or through Imagistics, together with related\nsoftware, peripherals and system configurations, including trade-ins, upgrades\nand other enhancements thereto or thereof, and such other products and services\nas may from time to time be agreed in writing by PBCC and Imagistics. Any such\nother products and services offered or sold by or through Imagistics will be\nsubject to the general terms and conditions of this Agreement, but separate\nprovisions relating to credit criteria, Lease terms and pricing will be\nestablished by the parties with respect to the financing thereof within sixty\n(60) days after Imagistics gives PBCC notice of its decision to offer such other\nproducts and services.\n\n     (b) Upon request, PBCC may, in its sole discretion, extend the Financing\nProgram to include other vendors' equipment, products or services not otherwise\nconstituting \"Equipment\" but being acquired or refinanced simultaneously with\nthe Equipment. If Imagistics, through acquisition, expansion or otherwise,\nengages in different or additional Equipment, service or product areas, PBCC\nshall have the right, but not the obligation, to be the primary exclusive\nprovider of financing for all such activities pursuant to the terms of this\nAgreement, unless PBCC elects in writing not to do so.\n\n     (c) Prior to their execution and delivery of this Agreement, the parties\nhad conducted business together pursuant to various programs that are superseded\nby this Agreement. Annexed to this Agreement as Exhibit A are certain provisions\nsetting forth the agreement of the parties as to how they will conduct their\nbusiness during the Transition Period.\n\n4. MARKETING; LEASE TRAINING. Imagistics will, from time to time, solicit the\ninterest of prospective Lessees in the Equipment. Imagistics' means of\nsolicitation may include, by way of example and not as limitation, the use of\nmass mailing, direct marketing by its Marketers, web-enabled marketing, and the\nuse of third-party alliances. PBCC shall have no obligation to solicit Lessees.\nUpon the request of Imagistics, PBCC will provide training in leasing and\nfinancing alternatives to Imagistics' Marketers, on such terms and conditions as\nmay be determined by mutual agreement of the parties. All marketing and\npromotional materials developed by the marketing group of Imagistics and\ndistributed to its sales force for use in connection with the Financing Program,\nincluding sales materials provided to its Marketers, and inserts to be included\nin Lessees' invoices, must be approved in advance by PBCC. PBCC will have no\nliability with respect to the use by any Marketer of any materials not approved\nby PBCC, nor any obligation to honor any commitments purportedly incurred as a\nresult of the use of such materials.\n\n5. CREDIT REQUESTS; CRITERIA AND PRICING. (a) Upon Imagistics' identification of\na prospective Lessee, Imagistics will provide PBCC with a Credit Request with\nrespect to such Lessee, in form and substance satisfactory to PBCC, containing\nall requested information relating to the prospective Lessee and detailing the\nspecific Equipment in which such Lessee has an interest. All non-public\ninformation contained in any Credit Request will be held in confidence by\nImagistics and PBCC and will not be disclosed to any party other than for the\nspecific purpose of evaluating a prospective Lessee's suitability for\nparticipation in the Financing Program. Except as otherwise permitted by the\nterms of this Agreement, neither Imagistics nor PBCC will share any lists of\nunique prospective or actual Lessees with any\n\n\n                                       4\n\n\nunrelated third party, or with any affiliate that competes directly with the\nproducts or services offered by the other party, without the prior written\nconsent of the other.\n\n     (b) PBCC will, in its sole discretion, establish credit criteria for\nevaluating the Lessees seeking financing under the Financing Program. All Lessee\nCredit Requests will be reviewed promptly upon PBCC's receipt of all requested\ninformation (which may include information concerning company ownership,\ncorporate structure and the like, in addition to credit information). PBCC may\nfrom time to time enter into strategic alliances with other financing sources\nthat provide financing for lessees such as the Lessees, and PBCC may, at its\noption, refer any Credit Request to such a financing source, it being\nunderstood, however, that the referral of such Credit Request to such a\nfinancing source shall not release PBCC from its obligations hereunder with\nrespect to such Credit Request and any financing furnished with respect thereto\nnor shall it alter the rights and obligations of Imagistics with respect\nthereto; provided, further, that PBCC may not refer any Credit Request to a\nfinancing source that is a captive finance company of a competitor of\nImagistics. Unless otherwise specifically agreed in writing by PBCC, all credit\napprovals will expire sixty (60) days following the date of approval. Credit\nRequests formally rejected by a Responsible Officer of PBCC in writing may be\nrestructured by Imagistics for resubmission to PBCC or may be submitted by\nImagistics, at its option, to a third party financing source.\n\n     (c) PBCC reserves the right, in its sole and absolute discretion, to\ndecline to provide financing to any prospective Lessee. By way of example and\nnot as limitation, PBCC may decline to provide financing to any Lessee (i) whose\nCredit Request is incomplete in any respect, (ii) whose credit does not meet the\nestablished criteria for the applicable level of financial exposure, (iii) that\nfails or refuses to execute and deliver all required Lease or credit\ndocumentation, or (iv) the financing of which may expose PBCC to additional\nlicensing or other regulatory requirements in any jurisdiction. Except for any\nliabilities arising pursuant to Section 13 hereof, PBCC will have no liability\nwhatsoever for any loss, costs or expenses incurred or sustained by Imagistics,\nany Marketer or any Lessee arising as a result of PBCC's denial of financing to\nany Lessee.\n\n     (d) The pricing of each Lease will be determined by PBCC in its sole\ndiscretion and may vary from time to time based on the term of the Lease or\nother financing arrangement, the creditworthiness of the Lessee, the\nthen-prevailing interest rate environment, the estimated useful life and\nresidual value of the Equipment, transaction size and such other criteria as\nPBCC may select. PBCC will provide Imagistics from time to time with a schedule\nsetting forth the current pricing criteria and Lease rates. PBCC may change its\npricing criteria and Lease rates at any time in its sole discretion, upon not\nless than forty-five (45) days' prior written notice to Imagistics of any such\nchanges. PBCC will not knowingly structure the pricing of any Lease so that the\nimplicit rate thereunder would constitute a rate in excess of that permitted by\napplicable law.\n\n     (e) PBCC covenants and agrees that, provided (i) no event of default exists\nunder any Lease between PBCC and a Lessee and (ii) such Lessee meets PBCC's then\napplicable credit criteria for the applicable level of financial exposure, PBCC\nwill provide additional financing to such Lessee throughout the term of this\nAgreement, whether for new Equipment, upgrades\n\n\n                                       5\n\n\nand\/or replacements, all on terms acceptable to PBCC in its sole discretion.\n\n6. TRANSACTION FEES. PBCC may elect to impose on prospective Lessees certain\nfees, as determined from time to time, including such items as credit review,\ndocumentation, filing fees, loss waiver, and third party financing, which fees\nmust be commensurate with standard industry practices. All such fees will be\nsolely for the account of PBCC. PBCC will provide Imagistics with a schedule\ndetailing all such fees, which may be changed at any time in PBCC's sole\ndiscretion upon not less than seventy-five (75) days' prior written notice to\nImagistics.\n\n7. DOCUMENTATION. (a) All documentation to be used by Imagistics in connection\nwith the Financing Program will be provided by PBCC. Each Lease shall: (i)\nexcept as otherwise prohibited by law, contain an evergreen clause pursuant to\nwhich the term of the Lease shall automatically be extended from time to time\nfor additional one year periods unless the Lessee or PBCC gives written notice\nto the other that the term will not be so extended not less than sixty (60) days\nprior to the date as of which the Lease term is then scheduled to expire; and\n(ii) make the Lessee responsible for any loss, damage or destruction of the\nEquipment occurring after the delivery of the same to the Lessee's site. Annexed\nto this Agreement as Exhibit C is a list of current Financing Program documents.\nUnless specifically agreed in writing by PBCC, all Leases will be documented as\nnoncancellable (\"hell-or-high-water\") net leases, with fixed terms of a length\nto be determined by PBCC and Imagistics for each Equipment or product line,\ncontaining industry-standard terms and conditions. The documentation will be in\nthe name of PBCC as owner and lessor. When Imagistics ceases to use the \"Pitney\nBowes\" name, PBCC will modify the form of Lease, the form of Acceptance\nCertificate and any other Financing Program documents the preparation of which\nis its responsibility, at its expense, as necessary to reflect a \"private label\"\nname selected by Imagistics to be used exclusively by Imagistics and PBCC in\nconnection with the financing program, it being understood and agreed that\nPBCC's agreement to modify such documentation will only apply to documentation\nrelating to Leases which are entered into after Imagistics gives PBCC notice of\nthe \"private label\" name so selected by Imagistics.\n\n     (b) Imagistics will prepare the Lease documents for execution by the\nLessee, using the forms provided by PBCC. In addition to the Lease, each Lessee\nwill be required to provide evidence of its authority to enter into the Lease,\nevidence of the authority of the person signing on its behalf and, if requested\nby PBCC, UCC-1 financing statements in favor of PBCC (or written consent to\nPBCC's execution of such financing statements on the Lessee's behalf) and\nevidence of acceptable insurance coverage naming PBCC as an additional insured\nand loss payee, and PBCC shall be solely responsible, and shall use commercially\nreasonable efforts, to obtain such documents. Imagistics shall have no authority\nto make any substantive changes to the forms of Lease documents, and PBCC will\nuse commercially reasonable efforts to assist Imagistics in those circumstances\nin which a Lessee seeks to negotiate any substantive terms and conditions of the\nLease. Only the forms of documentation provided by PBCC will be accepted by PBCC\nfor financing, and, unless specifically approved in advance in writing by a\nResponsible Officer of PBCC, no agreement, document, certificate, side letter or\nother communication (whether written or oral) that alters in any way the\nstandard terms and conditions of the Lease in any respect will constitute a part\nof the Lease, nor will PBCC honor, or have any obligation whatsoever to honor,\nany such terms or conditions, as so altered, and Imagistics will be solely\n\n\n                                       6\n\n\nresponsible for any loss, cost or expense that PBCC suffers or incurs as a\nresult of the alteration of any such terms or conditions not so specifically\napproved by PBCC.\n\n     (c) PBCC will prepare an acceptance certificate (the \"Acceptance\nCertificate\") for execution by the Lessee upon satisfactory installation of the\nEquipment by Imagistics or another authorized Equipment installer. The\nAcceptance Certificate will evidence the Lessee's irrevocable acceptance of the\nEquipment being financed. The term of the Lease will begin on the date set forth\nas the \"Lease Commencement Date\" in such Acceptance Certificate. It is the\nresponsibility of PBCC to obtain the executed Acceptance Certificate from the\nLessee, and PBCC shall use commercially reasonable efforts to obtain the same,\nbut Imagistics agrees that, upon request, it will use commercially reasonable\nefforts to assist PBCC in obtaining such Acceptance Certificate.\n\n8. PURCHASE DOCUMENTS; OWNERSHIP. (a) Upon the Lessee's execution of the Lease\nand related documentation, PBCC may, at its option, enter directly into a\npurchase agreement with the vendor of the Equipment (which may be Imagistics or\na third party vendor) or accept an assignment of an existing purchase agreement\nbetween such vendor and either Imagistics or the Lessee. Each such agreement\nwill provide that title to the Equipment will pass from the vendor directly to\nPBCC, free and clear of all liens, claims and encumbrances whatsoever, that the\nvendor will be relieved of all risk of loss, damage or destruction of the\nEquipment once the Equipment has been installed and that PBCC will be the\nbeneficiary of all warranties made by the vendor of the Equipment.\n\n     (b) All right, title and interest in and to the Equipment financed by PBCC\nshall be vested solely in PBCC as owner, free and clear of all liens, claims and\nencumbrances whatsoever, and to the extent, if any, that any tax benefits may\naccrue to an owner of equipment such as the Equipment, all of such benefits\nshall be for the account of PBCC. In filing its tax returns and maintaining its\nbooks and records, Imagistics shall take no position that is contrary to the\nforegoing, nor shall it take or omit to take any action, which act or omission\nresults in the disqualification of any Equipment from, or the recapture of, or a\nchange in the time at which PBCC may claim, all or any portion of such tax\nbenefits. PBCC does not make, nor shall it be deemed to have made, any\nrepresentation or warranty to Imagistics with respect to the tax or accounting\ntreatment of any transaction contemplated by this Agreement.\n\n9. INSTALLATION; MAINTENANCE AND REPAIR. Imagistics will be solely responsible\nfor the timely and satisfactory delivery and installation of the Equipment at\nthe Lessee's site. From and after the delivery of the Equipment to the Lessee's\nsite and throughout the term of the Lease, any requests from the Lessee for\nadditional services to correct any installation or operating problems and any\nrequests for maintenance and\/or repairs to the Equipment or any other equipment\nleased in connection therewith (together, such installation, operations,\nmaintenance and\/or repair, the \"Technical Services\") shall be the sole\nresponsibility of Imagistics, and PBCC shall have no liability whatsoever to\nprovide, or cause to be provided, nor shall it have any liability in any way\nrelating to the provision or performance of, any Technical Services relating to\nthe Equipment or to any other equipment leased in connection therewith.\nImagistics agrees to provide, or cause its Marketers or other authorized\nTechnical Services providers to provide, any and all such Technical Services to\neach Lessee upon request\n\n\n                                       7\n\n\nor in accordance with any Technical Services contract entered into with respect\nto the Equipment. No failure of Imagistics or any other party to provide\nTechnical Services to any Lessee shall entitle such Lessee to delay, withhold or\notherwise offset or modify the fixed payments of rent due under its Lease with\nPBCC.\n\n10. INVOICES AND FUNDING. Imagistics will provide, or if it is not the vendor of\nthe Equipment, will cause the vendor to provide, a detailed invoice in PBCC's\nname describing the Equipment and the purchase price therefor (including\napplicable taxes, if any) and certifying that all such Equipment has been\ndelivered to the Lessee, was inspected and installed to the Lessee's\nsatisfaction and is functioning in accordance with its published specifications,\nas the same may be modified by specific agreement between the Lessee and\nImagistics. Upon receipt of the Equipment invoice, PBCC will remit the purchase\nprice of the Equipment directly to Imagistics or, if the Equipment is being\nfurnished by a vendor other than Imagistics, such other vendor, as directed by\nImagistics to an account established by Imagistics or such other vendor, which\naccount of Imagistics may be changed from time to time by written notice from\nImagistics' Responsible Officer to PBCC. The parties will agree from time to\ntime as to any additional compensation arrangements.\n\n11. LEASE CANCELLATION REQUESTS. If, within thirty (30) days following the\npayment by PBCC of the purchase price of any Equipment, the Lessee requests a\nlease cancellation alleging missing, malfunctioning, nonconforming or\nnonfunctioning Equipment, PBCC will give Imagistics written notice of such fact\ncontaining: (i) such information with respect to the problem(s) raised by the\nLessee of which PBCC has received notice from the Lessee; and (ii) the LCR\nPurchase Price, which shall be the amount that Imagistics will be required to\nremit to PBCC should such the Lease be cancelled. Imagistics will have twenty\n(20) Business Days from its receipt of such notice to correct such Equipment\ndeficiency to Lessee's satisfaction at Imagistics' own cost and expense. If\nImagistics fails or refuses to do so within such timeframe, Imagistics will\npurchase the Equipment from PBCC for a purchase price (the \"LCR Purchase Price\")\nequal to (i) the sum of (x) the amount paid by PBCC in respect of the purchase\nprice of the Equipment, (y) any additional compensation paid by PBCC to\nImagistics in respect of such Lease and (z) any EMA Contract advances or other\namounts paid by PBCC to Imagistics in respect of such Lease, plus (ii) interest\non such total amount for the number of days elapsed between the date of funding\nand the date of such purchase, calculated at a rate per annum agreed to from\ntime to time by the parties, less (iii) any Lease payments actually received by\nPBCC from the Lessee and permitted to be retained by PBCC (i.e., not paid back,\nor required to be paid back, to the Lessee or paid over to Imagistics), such\namount to be paid no later than the tenth day after the expiry of such twenty\n(20) Business Day period. Upon receipt of such amount, PBCC will convey the\nEquipment to Imagistics on an \"as is, where is\" basis, without recourse or\nwarranty, other than as to the absence of liens created by PBCC (other than the\nLease, if Imagistics and the Lessee elect to continue the Lease).\nNotwithstanding anything contained herein to the contrary, if, within thirty\n(30) days following the payment by PBCC of the purchase price of any Equipment,\na Lessee requests the cancellation of a Lease for any reason, PBCC shall notify\nImagistics of such request and shall, upon the request of Imagistics, agree to\nthe cancellation of the Lease, whereupon Imagistics shall be required to pay to\nPBCC the LCR Purchase Price within ten days after such cancellation, and receipt\nof said payment shall be PBCC's sole and exclusive remedy for such cancellation.\n\n\n                                       8\n\n\n12. EMA CONTRACTS; ADVANCES BY PBCC. (a) If Imagistics and the Lessee enter into\na maintenance, service and supply contract (an \"EMA Contract\"), Imagistics will,\nin the event that Imagistics requests PBCC to pay to Imagistics the amount of\nEMA Contract charges payable under a Lease before it actually receives the\npayment of EMA Contract charges from the Lessee, assign to PBCC all of\nImagistics' rights under the EMA Contract, but none of its obligations. The\nLease shall contain a provision which states that Lessee acknowledges that PBCC\nis entitled to collect from the Lessee all amounts payable by the Lessee under\nsuch EMA Contract. Each EMA Contract will set forth in detail the nature and\namount of any charges thereunder to be included on the Lessee's invoice. All EMA\nContract base charges will be invoiced together with the Lessee's regularly\nscheduled Lease payments, either separately stated or included as a component of\nthe rent payment due. The failure of a Lessee to make timely payment of any such\nEMA Contract charges will constitute a default under both the EMA Contract and\nthe Lease, as to which PBCC will have all of the same rights and remedies that\nit has with respect to any other Lease default. PBCC may charge the Lessee for\nlate fees or interest on any unpaid EMA Contract charges in accordance with the\nterms of the applicable EMA Contract or the Lease, as applicable. Imagistics\ncovenants and agrees that it will fully perform all of its obligations under\neach EMA Contract.\n\n     (b) As an administrative convenience to Imagistics, PBCC agrees that,\nduring the term of this Agreement, Imagistics may invoice PBCC quarterly in\nadvance for an amount equal to the aggregate amount of EMA Contract charges\nscheduled to be paid by a Lessee during such quarter, and PBCC will pay\nImagistics an amount equal to such aggregate EMA Contract charges. PBCC shall\nhave no obligation to pay Imagistics any such amounts with respect to any Lease\nthe rent payments or EMA Contract charges under which are 60 days in arrears at\nthe time such advance is scheduled to be made to Imagistics until such rent\npayments or EMA Contract charges are brought current by the Lessee. Imagistics\nshall, upon demand by PBCC, reimburse PBCC for any advances of EMA Contract\ncharges made to Imagistics by PBCC and not collected by PBCC from a Lessee, and\nPBCC shall be entitled to set off the obligation of Imagistics to reimburse PBCC\nfor such advances against PBCC's obligation to make further advances of EMA\nContract charges hereunder, it being understood and agreed that the provisions\nof this sentence shall survive the termination or expiration of this Agreement.\nFollowing its advance to Imagistics of EMA Contract charges under a Lease, PBCC\nwill be entitled to retain all EMA Contract charges received from a Lessee\nduring the applicable quarter, together with any late fees or interest thereon.\n\n     (c) The parties acknowledge and agree that the provisions of this Section\n12 are subject to periodic review by PBCC and Imagistics as payment trends and\ncredit risks are identified in the portfolio of Leases originated and financed\nhereunder.\n\n13. INDEMNIFICATION. Imagistics shall indemnify and hold harmless PBCC, its\nstockholders, officers, directors, representatives, and employees (each, an\n\"Indemnitee\") from and against any and all claims, actions, suits, proceedings,\ncosts, expenses, damages, losses and liabilities, including reasonable fees and\nexpenses of counsel, arising out of, connected with, or resulting from: (i) the\nbreach by Imagistics of any representation, warranty, covenant or agreement made\nby it or binding on it hereunder; (ii) the failure by Imagistics to perform its\nobligations hereunder; (iii) the Equipment or any other equipment leased under\nany Lease,\n\n\n                                       9\n\n\nincluding without limitation the manufacture, delivery, installation or return\nto Imagistics of the Equipment or said equipment or otherwise on account of any\npersonal injury or death or damage to property occasioned by the Equipment or\nsaid equipment; (iv) the failure of the Equipment or any other equipment leased\nunder any Lease to conform to any relevant specifications therefor or the breach\nby Imagistics of any representation or warranty made with respect to the\nEquipment or said equipment; (v) the negligence or misconduct of employees,\nservants or agents of Imagistics, including any Marketer; (vi) the provision of,\nor failure of Imagistics, any Marketer or any other Technical Services provider\nto provide, Technical Services with respect to the Equipment or said equipment,\nas required by and in accordance with the terms of an EMA Contract; or (vii) any\ninfringement or alleged infringement of the intellectual property rights of any\nthird party occasioned by the operation of the Equipment or any of said\nequipment (\"Infringement\"). Notwithstanding the foregoing: (x) the obligation of\nImagistics to indemnify PBCC for claims based on the failure of Equipment or any\nother equipment leased under any Lease to conform to relevant specifications, on\nany breach by Imagistics of any representation or warranty made with respect to\nEquipment or said equipment or on misrepresentation(s) by an Imagistics' sales\nrepresentative in the procurement of a Lease shall only arise if: (1) a lawsuit\nbased on such misrepresentation(s) is filed by a Lessee against PBCC; or (2) a\ndefense based on such misrepresentation(s) is asserted by a Lessee in a lawsuit\nbrought by PBCC against such Lessee to enforce the terms of the Lease; and (y)\nexcept as provided in Section 12(b) of this Agreement and except to the extent\nthat a court concludes that the payment default was the result of an event of\nthe type specified above in this paragraph for which Imagistics is obligated to\nprovide indemnification, PBCC will have no recourse to Imagistics for any\npayment default under any Lease; provided, however, that, so long as PBCC has\ntaken commercially reasonable steps to obtain the first payment from a Lessee\nwithin sixty (60) days from the due date therefor, with respect to all Lessees\nother than Lessees under a Trade-Up Lease (as described below), Imagistics\nagrees to indemnify PBCC for any loss (such loss to be the LCR Purchase Price)\nresulting from a Lessee's failure to pay the first scheduled rent payment under\nits Lease within sixty (60) days from the due date for such payment, it being\nunderstood and agreed that the return for insufficient funds, or any other event\nwhich prevents the final payment, of any check drawn by a Lessee to discharge\nits obligation in respect of the first scheduled rent payment under its Lease\nshall constitute a failure to pay such first scheduled rent payment.\n\nPBCC agrees to promptly notify Imagistics in writing of any matters in respect\nto which the foregoing indemnity may apply, and Imagistics shall be relieved of\nits obligations under this Section 13 to the extent it is prejudiced by PBCC's\nfailure to timely notify it of such matter. Provided that Imagistics has\nacknowledged its obligation to provide indemnification as aforesaid, Imagistics\nshall have the exclusive right to control and conduct the defense and settlement\nof all such claims or actions. PBCC agrees to provide such assistance, at\nImagistics' expense, as may be reasonably required by Imagistics in connection\nwith such settlement or defense.\n\nIn the case of any Infringement or alleged Infringement, if final judgment shall\nbe obtained enjoining PBCC's use or operation of the Equipment or equipment, as\nthe case may be, or any part thereof, by reason of such Infringement or, if in\nImagistics' opinion, the Equipment or equipment, as the case may be, is likely\nto become subject to a claim of Infringement, Imagistics shall, at its sole\nexpense and option: (a) modify the Equipment or equipment, as the case may be,\n\n\n                                       10\n\n\nso that it becomes non-infringing without materially altering its capacity or\nperformance; (b) procure for PBCC the right to continue to use the Equipment or\nequipment, as the case may be: or (c) substitute for the infringing Equipment or\nequipment, as the case may be, other equipment having a capability equivalent to\nsuch Equipment or equipment. If Imagistics is unable to take any of the measures\nspecified in (a) through (c) above, then Imagistics will remove the infringing\nEquipment or equipment, at its sole cost and expense, and shall pay to PBCC the\nFair Market Value thereof plus any applicable taxes. Imagistics shall have no\nliability with respect to any such claim or action to the extent caused by the\ncombination, operation or use of the Equipment with any equipment, device, or\nalteration to the Equipment not made or authorized in writing by Imagistics.\n\nPBCC shall indemnify and hold harmless Imagistics, its stockholders, officers,\ndirectors, representatives, and employees from and against any and all claims,\nactions, suits, proceedings, costs, expenses, damages and liabilities, including\nreasonable fees and expenses of counsel, arising out of, connected with, or\nresulting from: (i) the breach by PBCC of any representation, warranty, covenant\nor agreement made by it or binding on it hereunder; (ii) the failure by PBCC to\nperform its obligations hereunder; or (iii) any denial of financing to an\napplicant where such denial violates applicable law. The provisions of this\nSection 13 shall survive the termination or expiration of this Agreement.\n\n14. TRADE-UPS, SUBSTITUTIONS AND COMPETITIVE BUY-OUTS. (a) So long as no event\nof default exists under an existing Lease (including a default under any lease\nfinanced by PBCC on behalf of Imagistics prior to the Effective Date), PBCC, at\nthe request of a Lessee or Imagistics, may agree to certain modifications to a\nLease and the Equipment subject thereto. Such modifications may involve (i) an\naddition to and\/or modification of such Equipment, accomplished by a change in\nsize, capacity, utility, speed or power that shall not require the removal of\nthe original Equipment from Lessee's premises (a \"retained base in-place\" or\n\"RBI\" trade-up; for purposes of this Agreement, a \"Trade-Up\"), (ii) a deletion\nfrom or replacement of all or any portion of said Equipment (a \"pick-up\"\ntrade-up; for purposes of this Agreement, an \"Equipment Substitution\"), or (iii)\na purchase or substitution of equipment offered by a competitive vendor in order\nto lease Equipment to the Lessee (a \"Competitive Buy-Out\").\n\n     (b) Provided (i) no event of default exists under any Lease or other\nagreement between the Lessee and PBCC and (ii) the Lessee meets the then\napplicable credit criteria for the applicable level of financial exposure, PBCC\nwill enter into a new or amended Lease with such Lessee, on such terms and\nconditions as may then be customary for financings under this Agreement. In the\ncase of Trade-Ups, any new Lease will include both the existing Equipment and\nthe Equipment provided pursuant to the Trade-Up. Should an existing lease cover\nmore than a single unit of equipment, the lessee shall have the option of adding\nthe equipment not provided pursuant to the Trade-Up or Equipment Substitution,\nas the case may be, to the new Lease, or keeping it under the existing lease.\n\n     (c) Imagistics and PBCC will from time to time establish mutually agreeable\npricing criteria for Trade-Up Leases and Equipment Substitution Leases to\naccount for the inclusion in the new Lease of the remaining payments due under\nthe existing Lease and any EMA Contract charges, as well as the payments due\nwith respect to such Trade-Up or Equipment Substitution,\n\n\n                                       11\n\n\nas the case may be. If a Lessee requests a Lease buy-out quotation from PBCC in\norder to replace Equipment with equipment offered by a competitive vendor, PBCC\nwill notify Imagistics in writing via e-mail or facsimile within one (1)\nBusiness Day of such request in order to enable Imagistics to take appropriate\nmarketing steps, and PBCC shall mail such buy-out quotation to Lessee five (5)\nBusiness Days after Imagistics has received such notice from PBCC.\n\n15. LEASE ADMINISTRATION. (a) As owner and lessor, PBCC will administer all\nLeases financed pursuant to this Financing Program, including booking the Leases\non PBCC's lease administration system, billing and collecting rents, monitoring\ncollections and, to the extent permitted by applicable law, reporting and\nremitting applicable sales or use taxes (if any). PBCC will provide Imagistics\nwith periodic reports with respect to the Leases and the Lessees; attached as\nExhibit D is a list of such reports. Imagistics will provide PBCC with any\ninformation or technical assistance reasonably deemed necessary by PBCC to\neffect the Lease transactions contemplated by this Agreement or to enable PBCC\nto administer the Lease portfolio.\n\n     (b) Imagistics will have no right or obligation to administer any Lease, to\naccept payments thereunder, to monitor collections or to exercise any remedies\nupon a default. Imagistics will not purport to amend, alter, modify, release,\nwaive or discharge any term or condition of the Lease without the prior written\nconsent of a Responsible Officer of PBCC, which may be given or withheld in\nPBCC's sole discretion, and any such action by Imagistics in the absence of such\nconsent shall be void and of no effect. During the term of this Agreement,\nImagistics will retain \"query\" and \"view only\" access to PBCC's lease\nadministration systems.\n\n     (c) PBCC may sell its portfolio of Leases to a third party provided: (i)\nsuch third party is not a competitor or a captive finance company of a\ncompetitor of Imagistics; and (ii) the third party agrees to be bound by the\nterms and conditions of this Agreement as they pertain to the Leases, which\nterms and conditions shall remain in full force and effect as set forth herein;\nprovided, however, that if the Agreement is terminated by PBCC pursuant to\nSection 2(b) hereof or by Imagistics pursuant to Section 24 hereof, PBCC will\ngive notice in writing to Imagistics of any definitive offer made by a third\nparty to purchase the portfolio during the six-month period following such\ntermination, such notice to be given within ten days after receipt by PBCC of\nsuch definitive offer, and Imagistics or its designee shall have the right to\nmatch the terms of the offer made by any such third party during the sixty-day\nperiod following the receipt by Imagistics of such notice from PBCC by\nsubmitting a definitive offer to purchase on the same terms as that previously\nsubmitted by such third party during such sixty-day period. In the event\nImagistics or such designee, as the case may be, elects to match such definitive\noffer, PBCC will sell the portfolio to Imagistics or such designee, as the case\nmay be, on the terms offered by such third party to PBCC. The terms of clause\n(i) above shall survive the termination or expiration of this Agreement unless\nthis Agreement is terminated by PBCC pursuant to Section 24 hereof.\n\n16. RIGHTS ON LESSEE DEFAULT. (a) Upon the occurrence of an event of default\nunder any Lease or any separate EMA Contract, PBCC shall have all of the rights\nand remedies available to it as lessor or otherwise thereunder and under any\napplicable law. PBCC will give Imagistics notice of any Lease as to which PBCC\nintends to exercise its right to repossess the\n\n\n                                       12\n\n\nEquipment, and Imagistics will have the right, but not the obligation, to\npurchase the Equipment at the Fair Market Value thereof upon such repossession\nor the surrender thereof by the Lessee plus any applicable taxes. The term \"Fair\nMarket Value\" as used in this Agreement means, as of the date on which the same\nis being calculated, the greater of: (i) the book value of the Equipment; and\n(ii) the cash purchase price (exclusive of any taxes) that would be obtained in\nan arms' length transaction between a knowledgeable seller under no compulsion\nto sell and a knowledgeable buyer (other than a used equipment dealer or a\nlessee in possession) under no compulsion to purchase.\n\n     (b) Following any such event of default, Imagistics will, at PBCC's request\nand expense, arrange to deinstall, pack, insure and transport such Equipment to\nImagistics' facilities or such other location as PBCC shall designate. Upon\nPBCC's request, Imagistics will store the Equipment at its facilities, in the\ncondition in which it was received from the Lessee's site, without charge for a\nperiod ending on the day which falls thirty (30) days after the later of: (i)\nthe day on which PBCC has received written notice from Imagistics that\nImagistics will not purchase the Equipment; and (ii) the day on which Imagistics\nhas received the Equipment at its facilities, and thereafter PBCC shall pay to\nImagistics storage charges at the rate of $2.50 per day per unit of Equipment.\nImagistics will give written notice to PBCC as to whether or not it will\npurchase the Equipment within twenty (20) Business Days following its receipt of\nsuch Equipment at its facilities or its inspection of the Equipment at such\nother location, whichever is earlier. The failure to give such notice within\nsuch period shall be deemed to be an election to not purchase the Equipment. If\nImagistics elects to purchase the Equipment, it will pay PBCC the Fair Market\nValue thereof (plus applicable taxes, if any) within five (5) Business Days\nfollowing its notice to PBCC of its election to purchase the Equipment. If\nImagistics does not exercise its right to purchase the Equipment, it will\ncontinue to store such Equipment at the rate set forth above for a period of 180\ndays.\n\n17. END OF LEASE TERM. (a) PBCC will give Imagistics written notice of the\nimpending termination of each Lease not less than nine (9) months prior to its\nscheduled termination date (the \"EOL Date\"). In addition to its customary Lease\nadministration duties, PBCC will initiate Lessee retention efforts no earlier\nthan thirty (30) days prior to the EOL Date and will advise Imagistics of the\nresults of such efforts. If prior to the EOL Date, the Lessee does not elect to\nacquire the Equipment, extend the Lease or exercise such other options as may be\navailable to it under the terms of the Lease, PBCC will give Imagistics notice\nof the availability of the Equipment for purchase, and Imagistics will have the\nright, but not the obligation, to purchase the Equipment on or after such EOL\nDate at the Fair Market Value thereof plus any applicable taxes.\n\n     (b) At the end of the Lease term, Imagistics will, at PBCC's request and\nexpense, arrange to deinstall, pack, insure and transport such Equipment to\nImagistics' facilities or such other location as PBCC shall designate, and shall\npick up the Equipment at the Lessee's site within thirty (30) days after PBCC's\nrequest. Upon PBCC's request, Imagistics will store the Equipment at its\nfacilities, in the condition in which it was received from the Lessee's site,\nwithout charge for a period ending on the day which falls thirty (30) days after\nthe later of: (i) the day on which PBCC has received written notice from\nImagistics that Imagistics will not purchase the Equipment; and (ii) the day on\nwhich Imagistics has received the Equipment at its\n\n\n                                       13\n\n\nfacilities, and thereafter PBCC shall pay to Imagistics storage charges at the\nrate of $2.50 per day per unit of Equipment. Imagistics will give written notice\nto PBCC as to whether or not it will purchase the Equipment within twenty (20)\nBusiness Days following its receipt of such Equipment at its facilities or its\ninspection of the Equipment at such other location, whichever is earlier. The\nfailure to give such notice within such period shall be deemed to be an election\nto not purchase the Equipment. If Imagistics elects to purchase the Equipment,\nit will pay PBCC the Fair Market Value thereof (plus applicable taxes, if any)\nwithin five (5) Business Days following its notice to PBCC of its election to\npurchase the Equipment. If Imagistics does not exercise its right to purchase\nthe Equipment, it will continue to store such Equipment at the rate set forth\nabove for a period of 180 days.\n\n18. RENEWALS AND EXTENSIONS; REMARKETING. Following the Transition Period, all\nEquipment remarketing will be the responsibility of PBCC, unless otherwise\nagreed by the parties. To facilitate the development by PBCC of its remarketing\ncapabilities, the parties have agreed to provide for Imagistics to engage in\ncertain remarketing efforts with respect to any Leases whose terms are scheduled\nto expire on or before December 31, 2001, all as more fully described in Exhibit\nA hereto.\n\n19. TARGETED SERVICE LEVELS. Each of the parties will use its commercially\nreasonable efforts to ensure that the Financing Program contemplated by this\nAgreement meets objective criteria established by the parties from time to time.\nThe Financing Program objectives and performance standards (the \"Targeted\nService Levels\") will be established by PBCC and Imagistics quarterly.\n\n20. REPRESENTATIONS AND WARRANTIES OF PBCC. PBCC represents and warrants to\nImagistics as follows:\n\n     (a) Due Organization. PBCC is a corporation duly organized and validly\nexisting in good standing under the laws of the State of Delaware, is and will\nremain duly qualified to do business as a foreign corporation in each other\njurisdiction in which the conduct of its business or the ownership of its\nproperty requires it to be so qualified, and has the corporate power and\nauthority to carry on its business as currently conducted, to execute, deliver\nand perform this Agreement and to consummate the transactions contemplated\nhereby.\n\n     (b) Authorized and Binding Obligations. This Agreement constitutes the duly\nauthorized, legal, valid and binding obligation of PBCC, enforceable against\nPBCC in accordance with its terms, except as such enforceability may be limited\nby bankruptcy, insolvency, moratorium and other laws affecting creditors' rights\nand remedies and by the application of equitable principles and remedies.\n\n     (c) Litigation. There is no action, suit, investigation or proceeding by or\nbefore any court, arbitrator, administrative agency or other governmental\nauthority pending or, to the knowledge of PBCC, threatened against or affecting\nPBCC which, if adversely determined, could have a material adverse effect on the\nfinancial condition, business or operations of PBCC or its ability to perform\nunder this Agreement.\n\n     (d) No Breach or Violations. The execution and delivery of this Agreement\ndo not, and\n\n\n                                       14\n\n\nthe performance of and compliance with the terms and provisions hereof will not,\n(i) constitute a breach or violation of the terms, conditions or provisions of,\nnor constitute a default under or conflict with, the certificate of\nincorporation or bylaws of PBCC or any terms, conditions or provisions of any\npromissory note, lease, indenture or other agreement or instrument, stay,\ninjunction, award or decree of any governmental body, administrative agency or\ncourt to which PBCC is a party or by which PBCC or its property may be bound or\n(ii) violate any provision of any law or administrative regulation applicable\nto, or any court decree issued with respect to, PBCC. Neither PBCC nor any of\nits employees or agents has taken any action or omitted to take any action, the\ntaking or omission of which would constitute fraud or a violation of the Foreign\nCorrupt Practices Act or any similar law in any applicable jurisdiction.\n\n21. REPRESENTATIONS AND WARRANTIES OF IMAGISTICS. Imagistics represents and\nwarrants to PBCC as follows:\n\n     (a) Due Organization. Imagistics is a corporation duly organized and\nvalidly existing in good standing under the laws of the State of Delaware, is\nand will remain qualified to do business as a foreign corporation in each other\njurisdiction in which the conduct of its business or the ownership of its\nproperty requires it to be so qualified, and has the corporate power and\nauthority to carry on its business as currently conducted, to execute, deliver\nand perform this Agreement and to consummate the transactions contemplated\nhereby.\n\n     (b) Authorized and Binding Obligations. This Agreement constitutes the duly\nauthorized, legal, valid and binding obligation of Imagistics, enforceable\nagainst Imagistics in accordance with its terms, except as such enforceability\nmay be limited by bankruptcy, insolvency, moratorium and other laws affecting\ncreditors' rights and remedies and by the application of equitable principles\nand remedies.\n\n     (c) Litigation. There is no action, suit, investigation or proceeding by or\nbefore any court, arbitrator, administrative agency or other governmental\nauthority pending or, to the knowledge of Imagistics, threatened against or\naffecting Imagistics which, if adversely determined, could have a material\nadverse effect on the financial condition, business or operations of Imagistics\nor its ability to perform under this Agreement.\n\n     (d) No Breach or Violations. The execution and delivery of this Agreement\ndo not, and the performance of and compliance with the terms and provisions\nhereof will not, (i) constitute a breach or violation of the terms, conditions\nor provisions of, nor constitute a default under or conflict with, the\ncertificate of incorporation or bylaws of Imagistics or any terms, conditions or\nprovisions of any promissory note, lease, indenture or other agreement or\ninstrument, stay, injunction, award or decree of any governmental body,\nadministrative agency or court to which Imagistics is a party or by which\nImagistics or its property may be bound or (ii) violate any provision of any law\nor administrative regulation applicable to, or any court decree issued with\nrespect to, Imagistics.\n\n     (e) Lessee Documents. As a continuing representation throughout the term of\nthis Agreement, with respect to each transaction from time to time proposed by\nImagistics hereunder, (i) all EMA Contract documents are accurate and complete,\nand all modifications, waivers, releases, special terms, understandings,\namendments and\/or agreements (written or oral) between\n\n\n                                       15\n\n\nImagistics and the Lessee, or made by Imagistics to the Lessee, or in any way\nwhatsoever relating to the Lease, the Lessee, the EMA Contract, the Credit\nRequest or the Equipment, have been fully disclosed and provided to PBCC; (ii)\nas of the date set forth in the Imagistics invoice to PBCC, the Equipment\ndescribed in the Lease has been delivered to the Lessee and has been installed;\n(iii) neither Imagistics nor any of its employees or agents has taken any action\nor omitted to take any action, the taking or omission of which would constitute\nfraud or a violation of the Foreign Corrupt Practices Act or any similar law in\nany applicable jurisdiction; (iv) upon payment in full of the purchase price of\nthe Equipment to Imagistics or its designee, PBCC shall have full legal and\nbeneficial title to such Equipment, free and clear of all liens, claims and\nencumbrances, other than the leasehold interest of the Lessee under the Lease;\n(v) Imagistics has performed and, provided that a Lessee is not in default under\nany Lease or any EMA Contract, will continue to perform, in all material\nrespects, its obligations under each EMA Contract except to the extent that\nImagistics' failure to perform is not material and would not adversely affect\nPBCC's rights and interests under any Lease, and no event of default by\nImagistics exists under any EMA Contract which would adversely affect PBCC's\nrights and interests under any Lease; and (vi) to the best knowledge of\nImagistics, no Credit Request contains an untrue statement of a material fact or\nomits to state any material fact necessary in order to make the statements\ntherein not misleading.\n\n22. STANDARD OF CONDUCT. PBCC shall perform its obligations hereunder in\naccordance with applicable law and with standards and procedures customarily\nused by other prudent persons in the business of originating, servicing and\nadministering assets similar to the Leases and, to the extent consistent with\nsuch terms, in the same manner in which, and with the same care, skill, prudence\nand diligence with which, it originates, services and administers leases of\nsimilar credit quality for itself or others, if any, but in any event, with no\nless care, skill, prudence and diligence than the customary and usual standards\nof practice of prudent institutional small and middle ticket equipment finance\nlease companies and, in each case, taking into account its other obligations\nhereunder (the \"PBCC Standard of Conduct\"). Imagistics shall perform its\nobligations hereunder in accordance with applicable law and with standards and\nprocedures customarily used by other prudent persons in the business of selling\nand servicing Equipment and, to the extent consistent with such terms, in the\nsame manner in which, and with the same care, skill, prudence and diligence with\nwhich, it sells and services Equipment for itself or others, if any, but in any\nevent, with no less care, skill, prudence and diligence than the customary and\nusual standards of practice of prudent institutional small and middle ticket\nequipment sales companies and, in each case, taking into account its other\nobligations hereunder (the \"Imagistics Standard of Conduct\"). (the Imagistics\nStandard of Conduct and the PBCC Standard of Conduct are collectively referred\nto herein as the \"Standard of Conduct\")\n\n23. TERMINATION EVENTS. Upon the occurrence of any of the following events\n(each, a \"Termination Event\") and whether any such Termination Event shall be\nvoluntary or involuntary or come about or be effected by operation of law or\npursuant to or in compliance with any judgment, decree or order of any court or\nany order, rule or regulation of any administrative or governmental body, the\nnon-defaulting party (as the case may be, the \"Aggrieved Party\") may elect to\nterminate this Agreement in accordance with Section 24 hereof:\n\n     (a) a party (the \"Defaulting Party\") fails to comply with the applicable\nStandard of\n\n\n                                       16\n\n\nConduct and such failure continues unremedied for a period of twenty (20) days\n(or such longer period as determined by the Aggrieved Party) after the date on\nwhich written notice of such failure describing the nature of such failure and\nrequesting the same to be remedied shall have been given to the Defaulting Party\nby the Aggrieved Party; or\n\n     (b) the Defaulting Party fails to meet the Targeted Service Levels for two\n(2) consecutive fiscal quarters; or\n\n     (c) the Defaulting Party fails to observe or to perform in any material\nrespect any of its other covenants or agreements set forth herein, which failure\nshall (i) materially and adversely, in the reasonable judgment of the Aggrieved\nParty, affect the rights of the Aggrieved Party hereunder or under any Lease and\n(ii) continue unremedied for a period of thirty (30) days (or such longer period\nas determined by the Aggrieved Party) after the date on which written notice of\nsuch failure requesting the same to be remedied shall have been given to the\nDefaulting Party by the Aggrieved Party; or\n\n     (d) the Defaulting Party fails generally to pay its debts as they become\ndue; or its dissolution, termination of existence, or discontinuance of\nbusiness; or the insolvency, business failure or appointment of a receiver of\nany part of such party's property, or an assignment by such party for the\nbenefit of creditors, or the commencement by or against it of any proceedings\nunder any bankruptcy, reorganization or arrangement laws and, in the case of any\ninvoluntary proceedings, the continuance of such proceedings unstayed and in\neffect for sixty (60) days, or the assumption of custody or control by any court\nof competent jurisdiction over any substantial portion of the Defaulting Party's\nproperty, and the same remaining in force unstayed or unterminated for sixty\n(60) days; or\n\n     (e) the Defaulting Party (i) enters into any transaction of merger or\nconsolidation or any commitment with respect thereto, unless it is the surviving\ncorporation, after giving effect to such merger or consolidation, its tangible\nnet worth is equal to or greater than that which existed immediately prior to\nthe merger or consolidation and the ratio of its debt to tangible net worth is\nnot greater than that which existed immediately prior to the merger or\nconsolidation and the person with whom it merges or consolidates is not a\ncompetitor of the other party; (ii) sells, transfers, or otherwise disposes of\nall or substantially all of its assets; (iii) permits any substantial change in\nthe ownership or control of its capital stock; or (iv) changes the form of\norganization of its business.\n\n24. REMEDIES; WAIVERS. (a) Upon the occurrence of a Termination Event (and\nfollowing any grace period applicable thereto), the Aggrieved Party may\nterminate this Agreement by giving the Defaulting Party not less than thirty\n(30) days' written notice, whereupon all rights of such Defaulting Party under\nthis Agreement (other than such rights as shall have already vested hereunder),\nwhether with respect to the Leases, the Equipment or otherwise, shall terminate\nwithout further action. Notwithstanding the foregoing, each party shall be\nentitled to all amounts payable to it under this Agreement accruing prior to the\ndate of termination of this Agreement, and Imagistics shall be entitled to\nreceive EMA Contract charges accruing after the date of termination of this\nAgreement with respect to Leases entered into during the period commencing on\nthe Effective Date and ending on the date of termination of this Agreement At\nany time thereafter, the Aggrieved Party may proceed by appropriate court\n\n\n                                       17\n\n\naction, either at law or in equity, to enforce performance by the Defaulting\nParty of the applicable covenants of this Agreement or to recover damages for\nthe breach thereof and may exercise any and all other rights accruing to it\nunder any applicable law upon a default by a contracting party.\n\n     (b) Either party may waive in writing any default by the other in the\nperformance of its obligations hereunder and its consequences. Upon any such\nwaiver of a past default, such default shall cease to exist, and any Termination\nEvent arising therefrom shall be deemed to have been remedied for every purpose\nof this Agreement. No such waiver shall extend to any subsequent or other\ndefault or impair any right consequent thereon.\n\n     (c) Neither party shall be liable one to the other, for any special,\nindirect, incidental, punitive, exemplary or consequential damages (including\nwithout limitation loss of profits) arising out of or in connection with this\nAgreement, the Equipment and servicing thereof.\n\n25. NOTICES; RESPONSIBLE OFFICERS. (a) Any demand, notice or instruction to be\ngiven hereunder shall be in writing and addressed to the applicable party at the\naddress stated on the signature page of this Agreement, or at such other address\nas such party may designate from time to time by written notice given in\naccordance with this Section 25. Except as otherwise expressly provided in this\nAgreement, notices hereunder shall be deemed given and effective (i) if\npersonally delivered, upon delivery, (ii) if sent by overnight rapid-delivery\nservice with tracking capabilities, upon receipt; (iii) if sent by facsimile,\ntelex, telecopier, or electronic mail, at such time as the party that sent the\nnotice receives confirmation of receipt by the applicable method of transmittal,\nor (iv) if sent by certified or registered mail, within five (5) days of deposit\nin the mail.\n\n     (b) Each of the parties will designate to the other in writing the names of\none or more Responsible Officers who have authority to act on its behalf,\nspecifying the extent of such authority and any restrictions thereon.\n\n26. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT\nSHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF\nNEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER\nSHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT REGARD TO THE CONFLICT\nOF LAW PROVISIONS OF ANY STATE.\n\n     (b) THE PARTIES HERETO HEREBY AGREE THAT ALL SERVICE OF PROCESS MAY BE MADE\nBY REGISTERED MAIL DIRECTED TO THE ADDRESSES SET FORTH ON THE SIGNATURE PAGE\nHEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETE UPON RECEIPT\nTHEREOF. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION IT MAY HAVE BASED ON\nFORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED\nHEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF DEEMED\nAPPROPRIATE BY A COURT. NOTHING IN THIS SECTION 26 SHALL AFFECT THE RIGHTS OF\nTHE PARTIES HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY\n\n\n                                       18\n\n\nLAW OR AFFECT ANY PARTY'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS\nOF ANY OTHER JURISDICTION.\n\n     (c) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO A\nTRIAL BY JURY IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT OR TORT, OR\nOTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS\nAGREEMENT. INSTEAD, ANY DISPUTE INVOLVING THIS AGREEMENT RESOLVED IN COURT SHALL\nBE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.\n\n27. COUNTERPARTS. This Agreement may be executed in one or more counterparts and\nby the parties hereto on separate counterparts, each of which, when so executed,\nshall be deemed to be an original; such counterparts, taken together, shall\nconstitute one and the same instrument.\n\n28. SEVERABILITY. Any provision of this Agreement that is determined by\ncompetent authority to be prohibited or unenforceable in any jurisdiction will,\nas to such jurisdiction, be ineffective to the extent of such prohibition or\nunenforceability without invalidating the remaining provisions hereof, and any\nsuch prohibition or unenforceability in any jurisdiction will not invalidate or\nrender unenforceable such provision in any other jurisdiction. To the extent\npermitted by applicable law, each of the parties hereto hereby waives any\nprovision of law which renders any provision hereof prohibited or unenforceable\nin any respect.\n\n29. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding\nupon, and inure to the benefit of, the parties hereto and their respective\nsuccessors and permitted assigns, and no other party shall be entitled to rely\non this Agreement as a third party beneficiary hereof; provided, that this\nAgreement and the rights and obligations hereunder are not assignable by\nImagistics without the prior written consent of PBCC, which may be given or\nwithheld in PBCC's sole discretion. This Agreement shall not create in favor of,\nnor give to, any third party, any claim or right of action against Imagistics or\nPBCC. PBCC may sell, assign, encumber, securitize or otherwise transfer to any\nparty who is not a competitor of Imagistics any or all of its interest in the\nEquipment, any Lease, any EMA Contract, and the payments due thereunder, subject\nto the rights of Imagistics pursuant to this Agreement.\n\n30. SURVIVAL. All representations and warranties contained in this Agreement or\nany document or certificate delivered pursuant hereto or thereto or in\nconnection herewith or therewith will survive the execution and delivery of this\nAgreement, and any terms or conditions of this Agreement which by their express\nterms extend beyond the termination or expiration of this Agreement or which by\ntheir nature shall so extend shall survive and continue in full force and effect\nafter any termination or expiration of this Agreement, including, but not\nlimited to, Sections 12(b), 13, 15(c) and 36. Without limiting the generality of\nthe foregoing, each party shall be entitled to all amounts payable to it under\nthis Agreement accruing prior to the date of termination or expiration of this\nAgreement, as the case may be, and Imagistics shall be entitled to receive EMA\nContract charges accruing after the date of termination or expiration of this\nAgreement, as the case may be, with respect to Leases entered into during the\nperiod commencing on the Effective Date and ending on such date of termination\nor expiration\n\n\n                                       19\n\n\n31. NO WAIVER. No delay or failure by either party to exercise or enforce at any\ntime any right or provision of this Agreement shall be considered a waiver\nthereof or of such party's right thereafter to exercise or enforce each and\nevery right and provision of this Agreement. Any waiver of any right hereunder\nin a specific circumstance shall not be deemed a waiver of that right in any\nother circumstances or a waiver of any other right. A waiver to be valid shall\nbe in writing but need not be supported by consideration.\n\n32. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire, full\nand complete agreement between the parties hereto concerning the subject matter\nhereof, and supersedes all prior agreements and negotiations. The terms of this\nAgreement shall not be waived, altered, modified, amended, supplemented or\nterminated in any manner whatsoever except by a written instrument signed by\nPBCC and Imagistics.\n\n33. ATTORNEYS' FEES. If either party hereto institutes an action or other\nproceeding to enforce any rights arising under this Agreement, the party\nprevailing in such action or other proceeding shall be paid all reasonable costs\nand attorneys' fees by the opposing party, such fees to be set by court and not\nby jury.\n\n34. FURTHER ASSURANCES. The parties shall execute any further or additional\ninstruments and they will perform any acts that may become necessary in order to\neffectuate and carry out the purposes of this Agreement.\n\n35. HEADINGS. The descriptive headings of the several sections of this Agreement\nare inserted for convenience only and do not constitute a part of this\nAgreement. The terms and conditions hereof have been negotiated by the parties\nhereto, and in interpreting this Agreement, no rule of construction that any\nambiguity shall be resolved against a drafting party shall apply.\n\n36. PUBLICITY; CONFIDENTIALITY. (a) Each of the parties agrees that any press\nrelease or other public announcements regarding this Agreement shall not be made\nwithout the prior written consent of the other (which consent shall not be\nunreasonably withheld or delayed), except as required by law, in which case the\nother party shall be consulted, to the extent reasonably practicable, as to the\ncontent and timing of such release, announcement or statement to be issued.\n\n     (b) In the performance of this Agreement, the parties may disclose to the\nother non-public, confidential and proprietary information (\"Protected\nInformation\") relating to PBCC's or Imagistics' credit criteria, marketing\nstrategy, transaction structuring, pricing guidelines, financial information,\ninternal costs and expenses or similar non-technical information considered by\nPBCC or Imagistics, respectively, to be of significant commercial value to it.\nTo maximize the benefit derived by the parties through sharing in one another's\nProtected Information, each of the parties agrees that at all times, both during\nthe term of this Agreement and thereafter, it will protect the other's Protected\nInformation from unauthorized dissemination (which shall include dissemination\nto a party's parent, subsidiary or affiliate) and use with the same degree of\ncare that it uses to protect its own like information, and with not less care\nthan is required by the applicable Standard of Conduct. Each of the parties\nshall be responsible for compliance by its directors, officers, employees and\nagents with the provisions of this Section 36(b). Each of PBCC and Imagistics\nmay use the other's Protected Information solely for the purpose of\n\n\n                                       20\n\n\neffecting the Financing Program as set forth in this Agreement and for no other\npurpose. \"Protected Information\" includes confidential or proprietary\ninformation developed, created or discovered by, for or on behalf of a party, or\nwhich became or becomes known by or is conveyed to such party, which has or may\nhave commercial value to such party in the conduct of its leasing business.\n\n     (c) The provisions of this Section 36 shall survive the termination or\nexpiration of this Agreement.\n\n      [Remainder of Page Intentionally Left Blank; Signature Page Follows.]\n\n\n                                       21\n\n\nIN WITNESS WHEREOF, the parties hereto have caused the execution of this\nOperating Agreement by their respective duly authorized representatives as of\nthe date set forth above.\n\nPITNEY BOWES CREDIT CORPORATION\n\nBy:   \/s\/ Bret Thomas\n     ------------------------------------\n     Bret Thomas\n     President - Global Credit Services\n\n     Address and Fax No. for Notices:\n     27 Waterview Drive\n     Shelton, CT  06484\n          Attn: Brett Thomas\n          Fax: (203) 922-4769\n\n\nIMAGISTICS INTERNATIONAL INC.\n\nBy:   \/s\/ Joseph D. Skrzypczak\n     ------------------------------------\n     Joseph D. Skrzypczak\n     Chief Financial Officer\n\nAddress and Fax No. for Notices:\n\n     100 Oakview Drive\n     Trumbull, CT 06611\n          Attn: Joseph D. Skrzypczak\n          Fax: (203) 365-2344\n\nExhibit A - Transition Period Agreement\nExhibit B - Current Leasing Programs\nExhibit C - List of Financing Program Documents\nExhibit D - Required Reports\n\n\n                                       22\n\n\n                                    EXHIBIT A\n\n                          [TRANSITION PERIOD AGREEMENT]\n\nExcept as otherwise provided in the Agreement, the terms of the Agreement will\ntake effect on 11\/1\/01, with the following exceptions:\n\no    All leases in PBCC's existing portfolio for Imagistics equipment which\n     expire on or prior to December 31, 2001 will be subject to the existing\n     \"buy-back\" arrangement in order to give PBCC an opportunity to develop its\n     remarketing capabilities. All such leases expiring thereafter will be\n     subject to the terms of Section 17 of this Agreement.\n\no    Advance funding of EMA Contract charges will commence as systems issues\n     with both parties are resolved, such resolution to occur no later\n     than January 2, 2002. PBCC's IT Department anticipates that the programming\n     will be completed within sixty days after the date Imagistics provides a\n     complete test file.\n\no    PBCC will provide a phase-in schedule for continuous improvement of credit\n     application response time by 11\/30\/01.\n\n\n                                       23\n\n\n                                    EXHIBIT B\n\n                           [CURRENT LEASING PROGRAMS]\n\no    Programs\n     o    90 Day cash conversion\n     o    Cancel\/Supercede - 90 days maximum\n     o    Competitive trade-in\n     o    Cost per copy lease\n\no    Marketing Opportunities such as participation in sales incentive trips will\n     continue to be provided to Imagistics personnel.\n\n\n                                       24\n\n\n                                    EXHIBIT C\n\n                      [LIST OF FINANCING PROGRAM DOCUMENTS]\n\no    Required in connection with all Leases\n     o    Credit Application\n     o    Lease Agreement\no    Required for Leases in excess of $100,000\n     o    Lessee financial statements\no    Required on an as-needed basis\n     o    Competitive Buy-Out Addendum\n     o    \"Water\" letter\n     o    UCC-1 Financing Statement\n\n\n                                       25\n\n\n                                    EXHIBIT D\n\n                               [REQUIRED REPORTS]\n\no    Reports to Imagistics\n     o    18 months or less, by District\n     o    Monthly Reports\n                    o    Statistical Overview\n                    o    Marketing Programs\n                    o    Adds\/Terms\n                    o    Trade Up Success Tracking\n     o    Special report requests agreed to by both parties\n     o    Cycle time reports for lease acceptance turnaround\n\no    Reports to PBCC\n     o    Leasable Sales\n     o    Special report requests agreed to by both parties\n\n\n                                       26\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7831,8530],"corporate_contracts_industries":[9454],"corporate_contracts_types":[9613,9617],"class_list":["post-42635","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imagistics-international-inc","corporate_contracts_companies-pitney-bowes-inc","corporate_contracts_industries-manufacturing__industrial","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42635","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42635"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42635"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42635"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42635"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}