EXHIBIT 10.28
EQUIPMENT SUBLEASE AGREEMENT #4
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This Equipment Sublease Agreement (the "Agreement") is made and entered
into as of the Effective Date, by and between Quest Manufacturing, Inc.
("Quest") and Silicon Film, Inc. ("SF"). Quest and SF are sometimes referred to
singularly as a "Party" or collectively as the "Parties."
RECITALS
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WHEREAS, Quest desires to sublease certain equipment, as described in
the attached EXHIBIT A, to SF;
WHEREAS, SF will compensate Quest according to the terms and conditions
set forth in this Agreement.
TERMS AND CONDITIONS
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NOW, THEREFORE, in consideration of the mutual obligations and promises
and additional consideration set forth herein, the Parties agree as follows:
1. AGREEMENT TO LEASE. Quest hereby leases to SF, and SF leases and rents from
Quest, the computer hardware, peripherals and software more fully described on
the attached EXHIBIT A (the "Equipment"). The Equipment shall include all
replacement parts, repairs, upgrades, additions, modifications and accessories.
2. TERM. Subject to the conditions provided for below, this Agreement, and the
lease of the Equipment, shall be for a term of 36 months, the first scheduled
payment, after any payments done at the signing of this agreement, will commence
on April 1, 2004, with a last payment due on January 1, 2007.
3. LEASE PAYMENT. At the signing of this Agreement SF agrees to pay Quest
document fees in the amount of $0. At the signing of this Agreement SF agrees to
pay Quest two advanced payments in the amount of $2590.08. During the Term of
this Agreement, SF agrees to pay on the 1st day of each calendar month, a lease
payment for the Equipment in the amount of $1360.91 (the "Rental Payment).
4. TERMINATION. This Agreement shall terminate upon any one of the following
Events of Termination:
(a) EXPIRATION. This Agreement may terminate on account of
expiration of the Term.
(b) FAILURE TO PAY. If SF remains more than sixty (60) days
behind payment for any monthly Rental Payment, Quest may terminate the Agreement
immediately and without further notice or opportunity to cure. In such event, SF
agrees to deliver the Equipment in good condition to Quest and agrees to pay any
accrued and unpaid Rental Payments due under the full term of the lease,
Interest, and Late Fees, etc. charged to Quest by the financial institution to
which Quest has signed the primary lease for the equipment.
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(c) BANKRUPTCY. Either Party may terminate this Agreement
immediately upon notice to the other if the other Party becomes insolvent or
bankrupt, assigns all or a substantial part of its business or assets for the
benefit of creditors, permits the appointment of a receiver for its business or
assets, becomes subject to any legal proceeding relating to insolvency,
reorganization or the protection of creditors' rights or otherwise ceases to
conduct business in the normal course.
5. TITLE TO THE EQUIPMENT. Quest shall at all times retain title to the
Equipment. All documents of title and evidence of delivery shall be retained by
Quest. SF agrees not to remove any lettering or insignia on the Equipment which
may denote title in Quest. Quest may cause this Agreement to be filed and
recorded, or cause financing statements to be filed as permitted by law. SF
shall protect and defend Quest's title, at all times keeping the Equipment free
from any legal process and/or encumbrances whatsoever, including, but not
limited to, liens, attachments, levies and executions, and shall give Quest
written notice as soon as practicable of any such lien. SF agrees to indemnify
Quest for any loss caused by the failure of SF to take action as provided
herein.
6. INSTALLATION. Quest agrees to install the Equipment at its own expense upon
SF's premises by itself or a third-party. Quest shall not be responsible for any
loss, damage or injury arising out of such installation or use of the Equipment.
7. MAINTENANCE. SF agrees that it will, at its own cost and expense, maintain
the Equipment in good operating condition, and protect the same from
deterioration, normal wear and tear excepted. SF covenants to use the Equipment
only in furtherance of its business operations and will not modify or alter the
Equipment without the written consent of Quest, which shall not be unreasonably
withheld.
8. INSURANCE. Quest agrees to name SF as an additional insured under its
policies of insurance covering property damage to the Equipment. Quest agrees to
give SF at least thirty (30) days' notice prior to cancellation of any such
insurance policies.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. SF agrees and acknowledges that
Quest makes no warranty of any nature whatsoever, whether express or implied, as
to the suitability of the Equipment for SF's business use. QUEST HEREBY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE AND SF ACKNOWLEDGES THE REASONABLENESS OF THIS DISCLAIMER.
10. DECLARATION OF INSOLVENCY. Upon any event of termination set forth in
Section 4(c), Quest shall have the right to enter the premises of SF (or
anywhere the Equipment may be found) and take possession of the same and remove
the same, upon which all rights of SF will terminate absolutely. Quest's right
to possession under this Section 10 shall inure to its benefit without demand or
legal process and without being guilty of trespass or conversion.
11. DELIVERY UPON TERMINATION. Upon termination or expiration of this Agreement,
SF shall deliver with all expenses prepaid to Quest the Equipment to an address
designated by Quest complete and in good condition, normal wear and tear
excepted.
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12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement will be governed by the
internal law of the State of Illinois, without regard to choice of law rules.
Exclusive venue for any dispute arising out of this Agreement, or the Parties'
performance under this Agreement, shall lie in the Circuit Court of DuPage
County, Illinois, and each Party acknowledges that this is a reasonable choice
of forum.
(b) AMENDMENTS AND WAIVER. The provisions of this Agreement
may be amended or waived only with the prior written consent of an authorized
representative of each Party.
(c) COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the Parties and supersedes and preempts any
prior understandings, agreements or representations by or among the Parties,
written or oral, which may have related to the subject matter hereof in any way.
(d) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the Parties.
(e) SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by the Parties and their
respective representatives, contractors, successors and assigns.
(f) FURTHER ASSURANCES. The Parties agree to cooperate fully
and to execute any and all supplementary documents and to take all additional
actions that may be necessary or appropriate to give full force and effect to
the terms and intent of this Agreement.
(g) ATTORNEYS' FEES. In any action or dispute arising out of
this Agreement, the prevailing Party shall be entitled to recover from the other
Party its reasonable attorneys' fees, costs and expert witness fees, in addition
to any other rights and remedies available to it at law or in equity.
(h) EFFECTIVE DATE. The effective date of this Agreement shall
be March 1, 2004 (the "Effective Date").
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IN WITNESS WHEREOF, the Parties have executed the foregoing Agreement
on and as of the Effective Date.
Quest Manufacturing, Inc. Silicon Film Technologies, Inc.
By: /S/ XXXX X. XXXXXXX By: /S/ XXXXXXXXX X. XXXXXX
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Name: Xxxx X. Xxxxxxx Name: Xxxxxxxxx X. XxXxxx
Its: President & CEO Its: President
Date: 3/18/04 Date: 3/18/04
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Reference Quest Financial Pacific Lease
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EXHIBIT A
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Lease Agreement executed as of February 13, 2004
between Quest Manufacturing, Inc.
and Financial Pacific Leasing, LLC
