EXHIBIT 10.54
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT (this "Lease") is between XXXXXX FINANCIAL LEASING,
INC., a Delaware corporation ("Lessor"), with an office address at 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 and IBIS TECHNOLOGY CORPORATION, a
Massachusetts corporation with its address and principal place of business at 00
Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Lessee") which parties hereby
agree as follows:
1. LEASING OF EQUIPMENT: Subject to the terms and conditions set forth
below, Lessor agrees to lease to Lessee and Lessee agrees to hire from Lessor
the equipment (the "Equipment;" a unit or part thereof being sometimes
hereinafter referred to as an "Item") described in any Master Lease Schedule
hereto, now or hereafter executed by the parties (each, a "Schedule"). Nothing
contained herein shall obligate either party to execute any Schedule subsequent
to the date hereof. The Equipment shall be delivered and installed at the
location specified or referred to in the applicable Schedule. The Equipment
shall be deemed to have been accepted by Lessee for all purposes under this
Lease as of the Acceptance Date (defined below) shown on the executed Delivery
and Acceptance Certificate (an "Acceptance Certificate") with respect to such
Equipment. Any modifications to this Lease contained in any Schedule shall be
controlling, but only with respect to the Equipment described in such Schedule.
Until and unless a Schedule is sold, assigned or otherwise transferred by
Lessor, or Lessor and Lessee expressly agree otherwise in writing, this Lease,
all Riders hereto or to any Schedule, now or hereafter executed by the parties
(each, a "Rider"), and all Schedules shall constitute one lease, and reference
to this Lease shall include all such Riders and Schedules. In the event that a
Schedule is sold, assigned or otherwise transferred by Lessor, such Schedule and
all Riders thereto shall be deemed to be a separate lease, which shall include
and incorporate each term and condition in this Lease and all Riders hereto. As
used herein, "Equipment Cost" shall have the same meaning and value as set forth
in each applicable Schedule.
2. TERM, RENT AND PAYMENT: (a) The term of this Lease for each respective
item (the "Term") shall commence on the date set forth in the Acceptance
Certificate therefor (the "Acceptance Date") and, unless sooner terminated
pursuant to Section 9 or 17, shall continue for the period specified as the
"Term" in the applicable Schedule. If any Term shall be extended or this Lease
is renewed pursuant to an extension or renewal option, the word "Term" shall
include all such extensions and renewals, and all provisions of this Lease shall
apply during all extension and renewal periods, except as may be specifically
provided otherwise in any Rider, Schedule or other written agreement applicable
thereto.
(b) Lessee agrees to pay to Lessor's order basic rent for each item in
the amount therefor set forth in the applicable Schedule ("Basic Rent"), plus a
per diem, pro-rata portion of the periodic Basic Rent for any interim period
("Interim Rent") from the Acceptance Date through the day immediately preceding
the "Commencement Date" set forth in the applicable Schedule. (Unless otherwise
stated in the applicable Schedule, the "Commencement Date" shall be the first
day of the first calendar month immediately following the Acceptance Date).
Interim Rent for items covered by a particular Schedule shall be due on the
Commencement Date.
The first Basic Rent payment for items covered by a particular Schedule shall be
due on the day of the period specified in such Schedule. Subsequent Basic Rent
payments for the items described in the applicable Schedule shall be due on the
same day of each applicable period thereafter. Any payment due on a day which is
not a business day shall be made on the following business day.
(c) Basic Rent, Interim Rent and all other amounts payable to Lessor
under any provision of this Lease (collectively, "Rent") shall, unless Lessor
otherwise directs, be paid to Lessor at its office address set forth above and
shall be deemed received when good funds are received by Lessor. Lessee agrees
to pay Lessor on demand an administrative and rate charge on all Rent not paid
within 10 days of the date due hereunder equal to the lesser of: (i) 5% of the
amount not timely paid or (ii) the maximum rent permitted by applicable law.
3. DISCLAIMER: LESSOR IS NEITHER THE MANUFACTURER NOR SELLER OF THE
EQUIPMENT, AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO THE EQUIPMENT, ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED. LESSEE UNDERSTANDS AND AGREES THAT NO WARRANTY IS TO BE IMPLIED WITH
RESPECT TO THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, THE FITNESS OF
THE EQUIPMENT FOR A PARTICULAR PURPOSE, THE ACCURACY OF THE DESCRIPTION OF THE
EQUIPMENT, OR WITH RESPECT TO INFRINGEMENT, INTERFERENCE OR THE LIKE, LESSOR
SHALL NOT BE LIABLE IF, FOR WHATEVER REASON, THE EQUIPMENT IS DELAYED OR NOT
DELIVERED TO LESSEE.
4. QUIET ENJOYMENT: So long as no Event of Default (as defined below)
exists, Lessor will not interfere with Lessee's quiet enjoyment and use of the
Equipment during the Term therefor.
5. NET LEASE: NO SET-OFF: This Lease is a net lease and Lessee shall not
be entitled to any abatement or reduction of, or set-off against, any Rent by
reason of any (i) past, present or future claim against Lessor or any
successor or assignee of Lessor or any supplier of any item or any other
person; (ii) defect in or damage to, or loss, prohibition, restriction on
use, damage or destruction of, any item (except as expressly provided
otherwise in Section 9) from whatever cause, or (iii) other cause whatsoever,
whether similar or dissimilar to the foregoing, it being the intention of the
parties that all Rent shall continue to be payable in all events in the
manner and at the times specified in this Lease and that Lessee's obligation
to pay Rent shall be absolute and unconditional unless the obligation to pay
the same shall be terminated pursuant to the express provisions of this Lease.
6. USE, LOCATION AND POSSESSION: LIENS: (a) Lessee shall use each item in a
careful and proper manner and for the use contemplated by the manufacturer
thereof and in compliance with all applicable laws, rules, and regulations and
the provisions of the insurance required to be maintained hereunder and the
terms of any manufacturer's warranty. Each item shall at all times be kept at
the location specified in the applicable Schedule unless Lessor has given prior
written consent to a change in location. Lessee shall at all times keep each
item in its possession and control.
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(b) Lessee shall keep each item free and clear of all claims, liens,
pledges, rights of others or other encumbrances, and shall not create, incur,
assume or suffer to exist any thereof in, on, of or to any item (collectively
"Liens"), other than those arising by, through or under Lessor ("Lessor Liens").
(c) Lessor shall have the right as owner, but not the obligation, at
all reasonable times, upon twenty-four hours notice to Lessee, to enter upon the
premises where the Equipment is located or used to inspect the Equipment and
Lessee's records relating thereto. Such inspections shall be for, among other
things, determining whether Lessee is properly complying with its obligations
hereunder. Neither Lessee nor any third party may rely upon any such inspections
by Lessor and Lessor shall not be obligated to inform Lessee or any third party
of the result of any such inspection. Any inspection that is not followed by a
notice of an Event of Default then existing and Lessor's failure to inspect the
Equipment or to discover any information regarding the Equipment shall not
constitute a waiver of any of Lessor's rights hereunder.
7. MAINTENANCE AND SERVICE; IMPROVEMENTS: (a) Lessee shall, at its expense,
at all times maintain, service and repair each item as would a prudent owner of
such item, and in any event so as to keep each item in good operating condition,
ordinary wear and tear excepted, in compliance with all applicable laws, rules,
regulations, and manufacturer's recommended basic warranty, extended warranty
and/or maintenance program requirements, and as otherwise may be required to
enforce warranty claims against each vendor and manufacturer of each item. To
the extent that Lessee's maintenance, repair or servicing standards exceed the
foregoing, then Lessee shall keep each item in at least as good condition as
other comparable equipment owned or used by Lessee. In addition, Lessee shall,
at its expense, comply with all maintenance requirements set forth by Lessor in
any applicable Rider now or hereafter executed by the parties. Lessee shall, if
at any time requested to do so by Lessor, affix in a prominent position on each
item plates, tags or other identifying labels showing ownership thereof by
Lessor.
(b) Any alterations or modifications with respect to any item that may
be required at any time during the Term therefor to comply with any applicable
law or any governmental or other rule or regulation shall be made by Lessee, at
its expense, and shall thereupon become the property of Lessor.
(c) Unless required pursuant to Subsection (b), Lessee shall not,
without Lessor's prior consent, affix or install any accessory, equipment, or
device on, or modify, any item if such addition or modification will impair the
original function or use thereof or cannot be readily removed without causing
damage to such item. Further, Lessee shall not, without Lessor's prior written
consent, affix or install any item to or in any other personal property, or to
or in any real property so that such item shall constitute a fixture. Upon
Lessor's request, Lessee shall obtain and deliver to Lessor disclaimers or
waivers from all owners and/or mortgages of real estate in which any item is
located in form and content acceptable to Lessor.
8. NO AGENCY: Lessee acknowledges that it alone has selected the Equipment
and the supplier(s) thereof; that it has reviewed and approved each written
supply contract and purchase order covering the Equipment, or has been advised
by Lessor in writing of the identity
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of each supplier; that it may have rights under each such supply contract and
purchase order; and that it may contact each supplier for a description of any
such rights and/or suppliers warranty. Nothing herein contained shall be
construed to deprive Lessee of whatever rights Lessee may have against parties
other than Lessor or Lessor's assignee, such as the supplier or manufacturer of
any item, and Lessee agrees to look solely to such third parties with respect to
any and all claims concerning the Equipment. So long as no Event of Default
exists, Lessee may pursue such claims for the mutual benefit of Lessor and
Lessee in accordance with their interests in the Equipment. Without in any way
limiting any other provision in this Lease, Lessor shall not in any event be
liable for any consequential damages hereunder or with respect to any item. No
supplier is the agent of Lessor and no employee of any supplier is authorized to
waive, supplement or otherwise alter any provision of this Lease. Lessee and
Lessor hereby agree that they intend this Lease to be a "Finance Lease" as
defined by Article 2A of the Uniform Commercial Code (the "UCC"). Lessee
acknowledges that Lessee has reviewed and approved any written "Supply Contract"
covering the Equipment from any "Supplier" (as those terms are defined in
Article 2A of the UCC).
9. RISK OF DAMAGE AND LOSS: Lessee assumes and shall be solely responsible
for the entire risk of any item being lost, destroyed, damaged, stolen,
confiscated or condemned, from whatever source, until the date such item is
returned and accepted by Lessor (the "Return Date") in accordance with Section
12. In the event of damage to any item, Lessee, at its expense, shall promptly
repair the same, restoring it to the condition required to be maintained
hereunder. If any item is lost, destroyed, stolen, damaged in such a way that it
is not commercially reasonable to repair it (or such repairs are not completed
within 60 days of the damage or by the end of the Term with respect thereto,
whichever is shorter), confiscated or condemned (each, an "Event of Loss"), then
Lessee shall pay to Lessor the Stipulated Loss Value (as defined below) of such
item and all other Rent owing with respect to such item, which such payment
shall be due on the first to occur of (i) the end of the Term with respect
thereto or (ii) the sooner of (A) 60 days after such Event of Loss or (B) the
second Basic Rent payment date with respect to such item following such Event of
Loss. Lessor and Lessee shall execute a Stipulated Loss Value Rider applicable
to each item and the Stipulated Loss Value for each tem shall be as set forth
therein (the "Stipulated Loss Value").
Upon due payment by Lessee of all such amounts, this Lease shall
terminate with respect to such item and Lessor shall transfer title thereto to
Lessee, without representation or warranty other than as to Lessor Liens. So
long as no Event of Default exists, any proceeds of insurance required hereunder
received by Lessor with respect to any damage or Event of Loss respecting any
Equipment shall be paid to Lessee to the extent necessary to reimburse Lessee
for costs incurred and paid by Lessee in repairing the same or shall be credited
against amounts payable by Lessee with respect to the Equipment involved.
10. INSURANCE: Lessee shall, at its expense, at all times through the
Return Date (i) keep the Equipment insured against all risks of loss or damage
from every cause whatsoever in an amount not less than the greater of fair
market value or the Stipulated Loss Value thereof, and (ii) obtain liability
insurance, including automobile coverage if the Equipment includes motor
vehicles, respecting the Equipment covering liability for bodily injury,
including death, and property damage, in an amount of at least $5 million per
occurrence or such greater amount
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as may comply with general industry standards, or such greater amount as Lessee
may maintain, or in such other amounts as Lessor may from time to time
reasonably require.
Lessor shall be the sole named loss-payee with respect to damage or
loss to the Equipment with no provision for co-insurance and shall be named as
an additional insured on the liability insurance. All insurance shall be with
insurers and in form satisfactory to Lessor, have a deductible not to exceed
$50,000 per occurrence, or such other amount as Lessor may from time to time
require; shall provide for at least 30 days' prior written notice to Lessor
before any cancellation or material modification thereof; shall waive any claim
for premium against Lessor; and shall provide that Lessor will be insured
regardless of any breach by Lessee of any representation, warranty or covenant
in any such policy or any application therefor. Lessee shall deliver to Lessor
certificates of insurance and other evidence satisfactory to Lessor evidencing
the insurance required hereby, and at Lessor's request Lessee will furnish
copies of such policies to Lessor. In the case of renewals, evidence of renewal
shall be delivered to Lessor at least 5 days prior to expiration of the current
policy.
In the event Lessee fails to provide Lessor with evidence of the
insurance coverage required by this Lease, Lessor may purchase insurance at
Lessee's expense to protect Lessor's interests in the Equipment. This insurance
may, but need not, protect Lessee's interests. The coverage purchased by Lessor
may not pay any claim made by Lessee or any claim that is made against Lessee in
connection with the Equipment. Lessee may later cancel any insurance purchased
by Lessor, but only after providing Lessor with evidence that Lessee has
obtained insurance as required by this Lease. If Lessor purchases insurance for
the Equipment, Lessee will be responsible for the costs of that insurance,
including interest and other charges imposed by Lessor in connection with the
placement of the insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to the
Rent. The costs of the insurance may be more than the cost of insurance Lessee
is able to obtain on its own.
11. ACCEPTANCE: By its execution of any Acceptance Certificate, Lessee
warrants and agrees that the Equipment covered thereby conforms to the
specifications and requirements of Lessee and that, as between Lessee and
Lessor, it was delivered in good repair and that Lessee has unconditionally
accepted it hereunder "AS IS" and "WITH ALL FAULTS" as of the Acceptance Date.
12. RETURN OF EQUIPMENT: Upon the expiration or earlier termination or
cancellation of this Lease with respect to any item, except in the case of
retention by Lessee upon purchase of the Equipment in accordance with any
applicable Rider now or hereafter executed by the parties, Lessee shall, at its
own cost and expense, promptly return such item to Lessor to such location as
Lessor may specify, for acceptance by Lessor in the condition required to be
maintained hereunder or in the condition specified in any applicable Rider now
or hereafter executed by the parties. Lessee shall pay for any repairs required
to place the Equipment in such condition. In the event Lessee shall not
surrender up and redeliver any item to Lessor as herein required or shall not
timely pay the purchase price for any item under any applicable Rider now or
hereafter executed by the parties, then the Term with respect to all of the
items of Equipment covered by the Schedule covering the item in question shall
continue (and, without limiting Lessee's other obligations, Lessee shall pay to
Lessor Basic Rent for all such items of Equipment
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at the highest rate payable during the Term) until the item is duly returned,
restored to the proper condition and accepted by Lessor or the purchase price is
paid in accordance with the applicable Rider.
13. GENERAL TAX INDEMNITY: Lessee agrees to pay and indemnify, on an
after-tax basis, Lessor against all income, sales, use, personal property, ad
valorem, value added, leasing, stamp or other taxes, levies, imposts, fees,
duties, charges or withholdings of any nature, including all license and
registration fees, together with any penalties, fines or interest thereon
(collectively, "Impositions") arising out of the transactions contemplated by
this Lease (including the acquisition of any item prior to the Acceptance Date)
and imposed against Lessor, Lessee, this Lease (including any Rent) or the
Equipment or any item by the United States or any state or political subdivision
thereof or any foreign government or taxing authority, excluding, however, any
Impositions based on or measured by the net income of Lessor imposed by the
United States or any state or political subdivision thereof. Lessee will notify
Lessor of the need to file any reports and returns relating to any Imposition at
least 60 days before the due date thereof and will remit any amounts payable in
connection therewith to Lessor 10 days before payment is due. Lessor shall
prepare and file all returns, and pay all Impositions, unless Lessor directs
Lessee otherwise. In the event that Lessor pays any such Impositions, Lessee
will on demand reimburse Lessor for the full amount paid by Lessor therefor.
Lessor shall have no obligation to contest or refuse to pay any Imposition.
Lessee acknowledges that in some jurisdictions Impositions may not be billed,
audited, assessed or due until after this Lease has terminated and agrees that
in such event Lessee will remain liable for such Impositions notwithstanding
such termination. Lessor makes no warranty, express or implied, regarding
Lessee's tax or accounting treatment of this Lease.
14. INCOME TAX INDEMNIFICATION: (a) Lessee acknowledges that Lessor is the
owner of the Equipment for state law and Federal income tax purposes and that
the most accelerated depreciation or cost recovery deductions on the full amount
of the Equipment cost will be available to Lessor. Lessee acknowledges that
Lessor intends to claim and take the depreciation deductions ("Depreciation
Deductions") with respect to the Equipment in accordance with Section 168 of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) Lessee represents, warrants and covenants as follows:
(i) Lessor will not be required to include any amount in its income in
connection with any item for any taxable year or part thereof during the Term
respecting such item other than (A) Interim Rent and Basic Rent, as such Rent
accrues in accordance with the terms hereof, (B) any amount constituting gain
recognized with respect to or by reason of the sale or other disposition of such
item upon the termination of this Lease with respect thereto, (C) any amount
payable to Lessor to the extent such amount is required to be determined by
reference to the income tax affect to Lessor of the receipt thereof, (D) any
amount specifically identified as interest, and (E) any other amount with
respect to which Lessor shall be entitled to a contemporaneous and equal
offsetting deduction (any amount so includable in Lessor's income other than as
contemplated in clauses (A) through (E) above being referred to herein as
"Inclusion"); and
(ii) Each item will constitute the Classification of Property specified in
the applicable Schedule within the meaning of Section 168(c) of the Code and
Lessor will be entitled to
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Depreciation Deductions with respect to its basis in the Equipment (which basis
shall equal 100% of the Equipment Cost for each item) in accordance with such
Classification of property.
(c) If for any reason whatsoever, including any act or omission of
Lessee or the inaccuracy of any representation or warranty of Lessee herein or
in connection with the transactions contemplated hereby:
(i) Lessor shall lose or lose the right to claim, or be advised or
determines that it would be imprudent, improper or inadvisable to claim, or
there shall be disallowed or recaptured, all or any portion of the anticipated
Depreciation Deductions,
(ii) Lessor shall suffer an Inclusion, or
(iii) Any foreign tax credit of Lessor shall be reduced, disallowed or
recaptured,
(any such loss, disallowance, reduction, recapture or inclusion being
hereinafter called a "Tax Loss"), then 30 days after written notice to Lessee by
Lessor that any Tax Loss has occurred, Lessee shall pay Lessor, as an indemnity
payment, a lump sum amount which, after deduction of all Federal, state and
local taxes required to be paid by Lessor in respect of the receipt of such
payment, shall provide Lessor with not less than the same net after-tax return
that Lessor would have realized if such Tax Loss had not occurred, including any
interest and penalties payable by Lessor attributable to such Tax Loss. In
computing Lessee's liability under this Section, the Federal, state and local
taxes payable by Lessor shall be based upon the highest marginal corporate tax
rate in effect for the taxable year in which the Tax Loss occurred.
(d) Lessee shall not be liable for indemnification respecting a Tax
Loss occurring solely as a result of: (i) Lessor being subject to the
application of the mid-quarter convention of Section 168(d)(3) of the Code, (ii)
Lessor making any election to claim the Depreciation Deductions in a manner less
rapid than contemplated by the definition thereof, (iii) Lessor failing to have
sufficient taxable income to utilize the Depreciation Deductions, (iv) Lessor
being subject to the "alternative minimum tax" of Section 55 of the Code, or (v)
a voluntary transfer or other voluntary disposition by the Lessor of any
interest in any Equipment or this Lease when no Event of Default exists.
(e) For the purpose of this Section the term "Lessor" shall include any
affiliated group within the meaning of Section 1504 of the Code of which Lessor
is a member, if consolidated returns are filed for such affiliated group for
Federal tax purposes, and a Tax Loss shall be deemed to have occurred upon the
earliest of:
(i) The happening of any event which may cause such Tax Loss,
(ii) The payment by Lessor to the taxing authority of the tax increase
resulting from such Tax Loss, or
(iii) The adjustment of the tax return of Lessor to reflect such Tax Loss.
15. GENERAL INDEMNIFICATION: Lessee hereby agrees to indemnify, save,
protect, defend and keep harmless Lessor, and its agents, directors, employees,
successors and
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assigns, from and against any and all losses, damages (including indirect,
special or consequential damage), harm, expenses, including legal fees (and a
reasonable allocation of the compensation, costs and expenses of internal
counsel, based upon time spent), penalties, injuries, claims, actions and suits,
of whatsoever kind and nature, in contract, tort of otherwise, whether caused by
the active or passive negligence of Lessor (excluding, however, Lessor's gross
negligence or willful misconduct) or otherwise and including Lessor's strict
liability in tort, in any way arising out of, related to or in connection with
the selection, modification, purchase, acceptance, rejection, ownership,
delivery, lease, possession, maintenance, use, condition (including latent or
other defects, whether or not discoverable by Lessor or Lessee, and any claim
for patent, trademark or copyright infringement), return of, or operation of any
item prior to its Return Date or relating to any default by Lessee or Event of
Default.
16. DEFAULT: Each of the following shall constitute an event of default (an
"Event of Default") hereunder:
(a) Lessee shall fail to make any payment of Rent within ten (10)
calendar days after the same shall become due and payable;
(b) Lessee or any guarantor of all or any part of Lessee's obligations
under this Lease (a "Guarantor") shall fail to pay or perform, as and when due
(including any applicable grace period), any obligations to Lessor or any of its
affiliates arising under or in connection with this Lease, including, but not
limited to, Lessee's obligation under Sections 6, 7, 9 and 10 hereof, or arising
under any other document or instrument including, but not limited to, any
document or instrument executed in connection with any other presently existing
or future loans, leases or other credit arrangements from Lessor or any of its
affiliates in favor of Lessee, or otherwise;
(c) Lessee or any Guarantor shall make any representation or warranty,
respectively, in this Lease or in any certificate or statement furnished at any
time hereunder or in connection with this Lease which proves to have been untrue
or misleading in any material respect when made or furnished;
(d) Lessee or any Guarantor shall file a voluntary petition in
bankruptcy or a voluntary petition or answer seeking liquidation,
administration, reorganization, arrangement, readjustment of its debts, or for
any other relief under the Bankruptcy Code, or under any other act or law
pertaining to insolvency or debtor relief, whether state, federal, or foreign,
now or hereafter existing; or Lessee or any Guarantor shall enter into any
agreement indicating its consent to, approval or, or acquiescence in, any such
petition or proceeding; or Lessee or any Guarantor shall apply for or permit the
appointment by consent or acquiescence of a receiver, custodian administrator,
or trustee for all or a substantial part of its property; or Lessee or any
Guarantor shall make an assignment for the benefit of creditors; or Lessee or
any Guarantor shall be unable or shall fail to pay its debts generally as such
debts become due; or Lessee or any Guarantor shall admit, in writing, its
liability or failure to pay its debts generally as such debts become due;
(e) There shall have been filed against Lessee or any Guarantor an
involuntary petition in bankruptcy or seeking liquidation, administration,
reorganization, arrangement, readjustment of its debts or for any other relief
under the Bankruptcy Code, or under any other
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act or law pertaining to insolvency or debtor relief, whether state, federal or
foreign, now or hereafter existing, or Lessee or any Guarantor shall suffer or
permit the involuntary appointment of a receiver, custodian, administrator, or
trustee for all or a substantial part of its property; or Lessee or any
Guarantor shall suffer or permit the issuance of a warrant of attachment,
diligence, execution or similar process against all or any substantial part of
its property, unless, in each other case, such petition, appointment or process
is fully bonded against, vacated or dismissed within forty-five (45) days from
its effective date, but not later than ten (10) days prior to any proposed
disposition of any assets pursuant to any such proceeding;
(f) The occurrence of any default in the payment or performance, and
the subsequent acceleration, of any debt or other obligations (including, but
not limited to, capital lease obligations or any corporate guaranty) either (i)
owed by Lessee to any other person or entity unaffiliated with Lessor, with an
outstanding principal balance in excess of $1,000,000.00, whether now or
hereafter existing or (ii) owed by any Guarantor to any other person or entity
unaffiliated with Lessor, with an outstanding principal balance in excess of
$1,000,000.00, whether now or hereafter existing;
(g) There shall be a change in the beneficial ownership and control,
directly or indirectly, of the majority of the outstanding voting securities or
other interests entitled (without regard to the occurrence of any contingency)
to elect or appoint members of the board of directors or other managing body of
Lessee or Guarantor such that any one person or entity, directly or indirectly
controls greater than 50% of the voting stock and/or controls greater than 50%
of the rights to elect more than 80% of the board of directors or other managing
body of Lessee or Guarantor (a "change of control"), or there is any merger,
consolidation, dissolution, liquidation, winding up or sale or other transfer of
all or substantially all of the assets of Lessee or Guarantor pursuant to which
there is a change of control or cessation of Lessee or Guarantor or their
businesses;
(h) The occurrence of any event described as a Default or an Event of
Default in any applicable Rider now or hereafter executed by the parties;
(i) There is a material adverse change in Lessee's or any Guarantor's
financial condition since the first Acceptance Date.
17. REMEDIES: (a) Upon the occurrence of any Event of Default, then, to the
extent permitted by applicable law, Lessor shall have the right to exercise any
one or more of the following remedies:
(i) To proceed by appropriate court action to enforce performances by
Lessee of its obligations hereunder or to recover damages for breach thereof;
(ii) To take possession of any item, wherever located, without notice,
legal process, prior judicial hearing, or liability for trespass or other damage
(WHICH RIGHTS LESSEE HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY WAIVES) and
thereafter hold, sell, operate or lease such item free of claims of Lessee,
except as set forth below;
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(iii) By notice to Lessee, to terminate or cancel this Lease and declare
all Rent then owing to Lessor hereunder immediately due and payable (whereupon
Lessee shall promptly pay the same);
(iv) To demand immediate payment of the Stipulated Loss Value of the
Equipment as liquidated damages for the remaining term (whereupon Lessee shall
promptly pay the same); and
(v) To pursue any other remedy available to Lessor at law or in equity.
(b) Lessor and Lessee agree that an amount equal to the Stipulated Loss
Value of the Equipment represents a reasonable return for the use of the
Equipment and for the depreciation thereof, and shall be the basis for
liquidated damages for the remaining term for which Lessee shall be liable to
Lessor upon the occurrence of an Event of Default. Any amounts realized by
Lessor on account of the Equipment subsequent to Lessor's taking possession
thereof pursuant to Section 17(a)(ii) shall, after reimbursement to Lessor of
all its expenses incurred in connection therewith, including legal fees (and a
reasonable allocation of the compensation, costs and expenses of internal
counsel based upon time spent), be credited to amounts of Stipulated Loss Value
and all other Rent owing by Lessee hereunder or, if such Stipulated Loss Value
and all other Rent has been paid, paid to Lessee.
(c) If Lessor elects not to sell, re-lease, or otherwise dispose of all
or any part of the Equipment, and holds such Equipment for Lessee for the
remaining Term, Lessor may recover, in addition to all Rent accrued and unpaid
as of the date of Lessor's recovery of possession of the Equipment, the present
value, as of such date, of the Rent for the remainder of the Term respecting
such Equipment (which Term shall include, for this purpose, to the extent
applicable, any agreed upon extensions and renewals which would, in the absence
of an Event of Default, automatically extend the Term upon Lessee's failure to
exercise any option to purchase contained in any addenda or Rider hereto).
Present value shall be computed using a discount rate equal to the Prime Rate in
effect on the Acceptance Date.
(d) If Lessor sells, leases, or otherwise disposes of all or any part
of the Equipment, Lessor may recover from Lessee, in addition to any Rent
accrued and unpaid as of the date of Lessor's recovery of possession of the
Equipment, the present value computed by using a discount rate equal to the
Prime Rate in effect on the Acceptance Date, of the difference between (i) the
Rent for the remainder of the Term respecting such Equipment (which Term shall
include, for this purpose, to the extent applicable, any agreed upon extensions
and renewals which would, in the absence of an Event of Default, automatically
extend the Term upon Lessee's failure to exercise any option to purchase
contained in any addenda or Rider hereto) and (ii) except in the case of a
substantially similar lease, the market rent for such period of time determined
by Lessor in its sole discretion, or (iii) in the case of a lease of Equipment
which is substantially similar to this Lease, the total rent for the lease term
of such substantially similar lease.
(e) Time of performance of Lessee's obligations hereunder is of the
essence. All remedies of Lessor hereunder are cumulative, and may, to the extent
permitted by law, be exercised concurrently or separately, and the exercise of
any one remedy shall not be deemed to be an election of such remedy to the
exclusion of any other remedy or to preclude the exercise of
10
any other remedy at any other time. However, Lessor is entitled to only one
satisfaction. Failure on the part of Lessor to exercise, or delay in exercising,
any right or remedy hereunder or Lessor's failure at any time to require
performance by Lessee of any of the provisions hereof shall not operate as a
waiver thereof; nor shall any single or partial exercise by Lessor of any right
or remedy hereunder preclude any other further exercise thereof or the exercise
of any other right or remedy. Lessee shall be liable for all charges, costs,
expenses and attorneys' fees incurred by Lessor (including a reasonable
allocation of the compensation costs and expenses of internal counsel, based
upon time spent): (i) in defending or protecting its interests in the Equipment,
or any item or part thereof, (ii) in the negotiation, execution, delivery,
administration, amendment or enforcement of this Lease or the collection of any
Rent hereunder, (iii) in any lawsuit or other legal proceeding in any way
connected with this Lease, including, but not limited to, any contract or tort
or other actions, any arbitration or other alternative dispute resolution
proceeding, all appeals and judgment enforcement actions and any bankruptcy
proceeding (including, but not limited to, any relief from stay and/or adequate
protection motions, each collateral disputes, assumption/rejection motions and
disputes or objections to any proposed disclosure statement or reorganization
plan). Lessee acknowledges and agrees that the preceding sentence shall survive
and not be merged with any judgment in connection with any exercise of any
remedy by Lessor provided hereunder. Lessee shall pay to Lessor interest on any
overdue payments under Section 13, 14 or 15 or amounts due under this Section 17
after demand therefor and until paid at a rate per annum equal to the lesser of
five percent (5%) above the Prime Rate then in effect or the maximum amount
permitted to be charged by Lessor by applicable law.
18. ASSIGNMENT. (a) Lessor may sell, assign or otherwise transfer all or
any part of its right, title and interest in and to the Equipment and/or this
Lease or in any Schedule executed in connection herewith, to a third-party
assignee, subject to the terms and conditions of this Lease including, but not
limited to, the right to the quiet enjoyment by Lessee as set forth in Section 4
above. Any such assignee may assume all of the rights and obligations of Lessor
in connection with the Equ8ipment or any Schedules sold, assigned or otherwise
transferred, in which case Lessor shall be relieved therefrom. To the extent of
any such assumption of obligations, all references to Lessor herein shall
thereafter mean such assignee.
(b) LESSOR may also pledge, mortgage or grant a security interest in
the Equipment and assign this Lease as collateral. Each such pledgee, mortgagee,
lien holder or assignee shall have any and all rights as may be assigned by
Lessor but none of the obligations of Lessor hereunder. Any pledge, mortgage or
grant of security interest in the Equipment of collateral assignment of this
Lease shall be subject to the terms and conditions hereof including, but not
limited to, the right to the quiet enjoyment of the Equipment by Lessee as set
forth in Section 4 above. If Lessor grants a security interest in all or any
part of any Schedule, any Equipment covered thereby and/or any sums payable
thereunder, only the original of the Schedule held by Lessor shall be effective
to transfer Lessor's rights therein.
(c) Lessee shall not be relieved of any of its obligations hereunder by
reason of any such sale, assignment, or other transfer referred to in Subsection
(a) above, or any pledge, mortgage, grant of security interest or collateral
assignment referred to in Subsection (b) above, all of which such obligations
shall remain absolute and unconditional, including, but not limited to, Lessee's
obligations to pay Rent as set forth in Section 5 above. Lessee agrees that it
will not
11
assert against any purchasor, pledgee, mortgagee, lien holder or assignee
(collectively, an "Assignee") any defense, counterclaim or offset that Lessee
may have against Lessor and Lessee acknowledges that any such assignment or
other transfer by Lessor, or any such pledge, mortgage, grant of security
interest or collateral assignment by Lessor, shall not materially change
Lessee's duties or obligations under the Lease nor materially increase the
burdens or risks imposed on Lessee. Upon the written request of Lessor, Lessee
shall acknowledge all such obligations to the Assignee with such acknowledgment
shall be in such form and substance as Lessor or any such Assignee may require,
consistent with their normal business practices.
(d) LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR
PLEDGE ANY OF ITS INTEREST IN THIS LEASE OR ANY OF THE EQUIPMENT, WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR. ANY SUCH SALE, TRANSFER, ASSIGNMENT, SUBLEASE,
CONVEYANCE, OR PLEDGE, WHETHER BY OPERATION OF LAW OR OTHERWISE, WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR, SHALL BE VOID.
19. REPORTS: (a) Lessee will immediately notify Lessor of::
(i) Each Event of Loss or accident involving or allegedly involving any
Item;
(ii) Any Lien (other than a Lessor Lien) which shall have attached to any
Item; or
(iii) The occurrence of any Event of Default of event which, with the lapse
of time or giving of notice or both could become an Event of Default.
(b) Lessee and each Guarantor shall, as soon as practicable, and in any
event within sixty (60) days after the end of each fiscal quarter, furnish to
Lessor its unaudited financial statements including in each instance, balance
sheets, Income statements, and statements of cash flow, on a consolidated and
consolidating basis, as appropriate, and separate profit and loss statements as
of end for the quarterly period then ended and for its fiscal year to date,
prepared in accordance with generally accepted accounting principles,
consistently applied, and Lessee and any Guarantor hereunder shall, as soon as
practicable, and in any event within ninety (90) days after the end of each
fiscal year, furnish to Lessor its annual audited financial statements,
including balance sheets, income statements and statements of cash flow for the
fiscal year then ended, on a consolidated and consolidating basis, as
appropriate, which have been prepared by its independent accountants. Such
audited financial statements shall be accompanied by the independent
accountant's opinion, which opinion shall be in form generally recognized as
"unqualified".
20. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and
warrants to Lessor that on the date hereof and on the date of execution of each
Schedule:
(a) Lessee has full power, authority and legal right to enter into and
to perform its obligations under this Lease and all related documents
(collectively the "Documents"), is in good standing under the law of its
jurisdiction of incorporation and is duly qualified to do business and in good
standing wherever necessary to carry on its present business and operations,
including the jurisdiction(s) where the Equipment is or is to be located.
12
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements of Lessee, enforceable
against it in accordance with their terms.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality, or any person, with respect to
the entry into or performance by Lessee of the Documents except such as have
already been obtained.
(d) The entry into and performance by Lessee of its obligations under
the Documents will not (i) violate any judgment, order, law or regulation
applicable to Lessee or any provision of Lessee's Certificate of Incorporation
or By-laws; or (ii) result in any breach of, constitute a default under or
result in the creation of any Lien, pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Lessee is a
party.
(e) There is no existing Event of Default under this Lease or any
existing default in connection with any indenture, mortgage, deed of trust, bank
loan or credit agreement or other instrument to which Lessee is a party.
(f) There are no suits or proceedings pending or threatened in any
court or by any governmental agency against or affecting Lessee, which, if
adversely determined, would have a material adverse effect on the ability of
Lessee to fulfill its obligations under this Lease or its financial condition or
prospects.
(g) Each balance sheet, income statement, and statement of cash flow
delivered to Lessor has been prepared in accordance with generally accepted
accounting principles, and since the date of the most recent such balance sheet,
income statement, and statement of cash flow, there has been no material adverse
change in the financial condition or prospects of Lessee.
(h) The Equipment will at all times be used for commercial or business
purposes.
21. MISCELLANEOUS, JURY WAIVER, GOVERNING LAW, JURISDICTION, VENUE: (a)
Nothing herein contained shall give or convey to Lessee any right, title or
interest in and to any Equipment leased hereunder except as a lessee. Should
Lessor permit the use of any Equipment beyond the specified Term thereof, the
obligations of the Lessee hereunder shall continue (including the obligation to
pay the Basic Rent at the highest rate applicable during the Term with respect
thereto) and such permissive use shall not be construed as renewal of the Term
thereof nor as a waiver of any right or continuation of any obligation of Lessor
hereunder. Lessee's obligations pursuant to Section 11, 12, 13, 14 and 15 shall
survive the expiration or earlier termination of this Lease and Lessee shall
remain liable therefore. Equipment shall at all times remain personal property
of Lessor notwithstanding any affixation to the real estate.
(b) The Equipment subject hereto is and at all times shall be and
remain the sole and exclusive property of Lessor, and Lessee shall have no
right, title or interest therein or thereto, except as expressly set forth in
this Lease. As a precaution, Lessee hereby also grants
13
hereto, Lessor a first priority continuing lien and security interest in the
Equipment subject thereto and the proceeds thereof to secure any obligation of
Lessee under this Lease, each Schedule hereunder, any other agreement between
Lessor and Lessee. Lessee further agrees that Lessee's obligations hereunder are
additionally secured by all security interests, liens and encumbrances
heretofore, now or hereafter granted by Lessee to Lessor under any instrument,
whether or not related to this Lease. Lessee agrees to execute any instrument or
instruments necessary or expedient for filing, recording, perfecting, or
notifying of the Interest of Lessor in the Equipment upon request of, and as
determined by, Lessor. Lessee hereby specifically authorizes Lessor to file
financing statements not signed by Lessee or to execute same for an on behalf of
Lessee as Lessee's attorney-in-fact, irrevocable and coupled with an interest,
fur such purposes.
(c) To the extent permitted by applicable law, Lessee hereby waives any
and all rights and remedies conferred upon a lessee by such applicable law
(including but not limited to Article 2A of the UCC) to: (i) cancel this Lease;
(ii) repudiate this Lease; (iii) reject the Equipment; (iv) revoke acceptance of
the Equipment; (v) recover damages from Lessor for any breaches of warranty or
for any other reason; (vi) claim, grant or permit a security interest in the
Equipment in Lessee's possession or control for any reason; (vii) deduct all of
any part of any claimed damages resulting from Lessor's default, if any, under
this Lease; (viii) accept partial delivery of the Equipment; (ix) "Cover" by
making any purchase of lease of, or contract to purchase or lease, Equipment in
substitution of that due from Lessor; (x) recover any general, special,
incidental or consequential damages, for any reason whatsoever; and (xi) obtain
specific performance, replevin, detinue, sequestration, claim and deliver or the
like for any Equipment identified to this Lease. To the extent permitted by
applicable law, Lessee also hereby waives any rights now or hereafter conferred
by statute or otherwise which may require Lessor to sell, lease or otherwise use
any Equipment in mitigation of Lessor's damages as set forth in Section 17 of
this Lease or which may otherwise limit or modify any of Lessor's rights or
remedies under Section 17.
Any action by Lessee against Lessor for any default by Lessor under
this Lease, including breach of warranty or indemnity, shall be commenced within
one (1) year after any such cause of action accrues. LESSOR AND LESSEE EACH
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING HEREFROM OR IN
RELATION HERETO.
(d) All notices hereunder shall be in writing and shall be delivered by
hand, by overnight courier or by certified or registered mail, return receipt
requested, to each party at its address set forth below, as such address may be
changed by such notice. All notices shall be deemed given when received, when
delivery is refused or when the same are returned for failure to be called for.
(e) If Lessee fails to perform any of its obligations hereunder Lessor
may, but shall not be obligated to, perform the same (without such performance
constituting a cure or waiver of Lessee's failure to so perform) and Lessee will
on demand reimburse Lessor for all its costs and expenses incurred in connection
therewith.
14
(f) THIS LEASE AND THE RIGHTS AND OBLIGATION OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT OR THE STATE OF
INCORPORATION OR PRINCIPAL PLACE OF BUSINESS OF THE LESSEE. LESSEE, (I) CONSENTS
AT LESSOR'S ELECTION AND WITHOUT LIMITING LESSOR'S RIGHT TO COMMENCE AN ACTION
IN ANY OTHER JURISDICTION, TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURTS
(FEDERAL, STATE OR LOCAL) SITUATED IN XXXX COUNTY, ILLINOIS; (II) WAIVES ANY
OBJECTION TO IMPROPER VENUE AND FORUM NON-CONVENIENS; AND (III) CONSENTS TO
SERVICE OF PROCESS BY CERTIFIED MAIL, POSTAGE PREPAID, TO LESSEE AT ITS ADDRESS
AS SET FORTH HEREIN, WHICH SERVICE SHALL BE DEEMED COMPLETE WITHIN TEN (10) DAYS
AFTER THE DATE OF MAILING THEREOF. If any provision of this Lease shall
contravene or be invalid under applicable law or regulation, such contravention
or invalidity shall not affect the entire Lease, the provisions held to be
invalid to be deemed deleted or modified and the Lease interpreted and construed
as though such invalid provision or provisions were not part hereof or conformed
thereto.
(g) This Lease, together with each Schedule and Rider, constitutes the
entire agreement of the parties with respect to the subject matter hereof, and
supersedes and replaces any prior or contradictory representations, warranties
or agreements by Lessor and Lessee. Unless set forth in a Schedule or Rider,
signed by an authorized manager of Lessor, Lessee shall have no right to
purchase or otherwise acquire title to or ownership of any item of Equipment. No
agent of employee of any supplier or manufacturer is authorized to bind Lessor
to this Lease or any Schedule, or to waive, alter or add to the terms and
conditions printed herein and in any Schedule. This is a non-cancelable Lease
and Lessee's obligations hereunder are absolute and unconditional. This Lease,
any amendments to, variations or modifications of the Lease, any waiver of its
provisions or conditions, any consent hereunder and all Schedules shall not be
valid unless in writing and signed by an authorized officer or manager of
Lessor.
/s/ DLN
-------------------
(LESSEE'S INITIALS)
15
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the 25th day of September, 2001.
XXXXXX FINANCIAL LEASING, INC., IBIS TECHNOLOGY CORPORATION,
a Delaware corporation a Massachusetts corporation
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXX
------------------------------ ----------------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT Title: CFO
Address: 000 Xxxx Xxxxxx Xxxxxx Address: 00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000 Facsimile No.:(000) 000-0000
16
Master Lease Agreement No: 192-0339_______
Master Lease Agreement No.:SEPTEMBER 25, 2001
ADDITIONAL COLLATERAL RIDER
This Additional Collateral Rider is an integral part of the
above-referenced Master Lease Agreement (the "Lease") between Ibis Technology
Corporation, a Massachusetts corporation ("Lessee"), and Xxxxxx Financial
Leasing, Inc., a Delaware corporation ("Lessor"), the terms of which are
incorporated herein by this reference. Capitalized terms used in this Additional
Collateral Rider and not otherwise defined herein shall have the meaning as set
forth in the Lease.
As additional collateral for the obligations of Lessee to Lessor
pursuant to any schedule to the Lease executed from time to time (each a
"Schedule" and collectively the "Schedules"), Lessee hereby grants to Lessor a
continuing first lien and security interest in the equipment ("Additional
Collateral") described on Schedule A attached hereto and made part hereof.
Subject to the provisions of this Additional Collateral Rider, the Additional
Collateral shall be deemed Items of Equipment under the Lease and subject to all
the same terms and conditions. The Additional Collateral shall not include any
Items of Equipment leased under any Schedule during the terms of that Schedule.
Each Schedule shall share parri passu in the Additional Collateral as determined
by the total outstanding obligations under all Schedules at the time of an event
of default and subsequent acceleration under any Schedule. Each Schedule shall
be deemed to include and incorporate the terms and conditions in this Additional
Collateral Rider. The holders of all Schedules must agree on any material
modification to the Lease with regard to the Additional Collateral.
The terms of this Additional Collateral Rider shall supersede and override any
conflicting terms of the Lease relating to the Items of Equipment covered by the
Schedule; otherwise, all of the terms and provisions of the Lease remain in full
force and effect.
Executed and delivered effective as of the date of the Lease.
"LESSOR" "LESSEE"
XXXXXX FINANCIAL LEASING, INC. IBIS TECHNOLOGY CORPORATION
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXX
---------------------------------- --------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXXX
------------------------------- ------------------------
Title: VICE PRESIDENT Title: CFO
------------------------------ -----------------------
17
SCHEDULE A
TO
ADDITIONAL COLLATERAL RIDER
TO
MASTER LEASE AGREEMENT NO. 192-0339 DATED SEPTEMBER 25, 2001
A security interest in all of Lessee's furniture, fixtures, machinery, and
equipment; together with any and all attachments, additions and accessions
thereto and accessories, substitutions, replacements and parts therefor, now
owned, or hereafter acquired by Lessee, and all products, cash proceeds,
non-cash proceeds (including insurance proceeds) thereof.
Lessor will release its interests in one Ibis 1000 implanter Serial Number RT18
("Implanter") upon the sale of such Implanter.
Located at:
32 & 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
"LESSOR" "LESSEE"
XXXXXX FINANCIAL LEASING, INC. IBIS TECHNOLOGY CORPORATION
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXX
-------------------------------- -----------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXXX
----------------------------- -------------------------
Title: VICE PRESIDENT Title: CFO
---------------------------- -------------------------
18
