EXHIBIT 10.28
Amstel Lease
Utrecht May 28, 2002
Ref : OPLEASE / 345792.00
By : ▇.▇. ▇▇▇ ▇▇ ▇▇▇▇ / ▇. ▇▇ ▇▇▇▇▇▇ / al
Tel nr. : 030 - 2906 508
Subject: operational lease
Dear ▇▇. ▇▇▇▇▇▇▇▇▇,
It is our pleasure to inform you that we are willing, under the circumstances
and regulations of the general agreement dated May 3, 2002, to buy the following
objects on behalf of you.
Description
Metal working machine, welding robots and installation on behalf of coating,
date of building: 2002.
Fiscal purchase price
E.2.000.000,00 (V.A.T. excluded)
Fixed lease period
60 months
Lease period amount
E.34.832,00 (V.A.T. excluded) per month by payment in advance.
Buy option
During the fixed period of leasing you can buy the object for a by us determined
purchase amount; after the fixed period of leasing you can buy the object for
E.280.000,00 (V.A.T. excluded)
Validity
This quotation is, with regard to the period of leasing, valid till June 5,
2002. If the commencing date of the lease agreement is after the mentioned date
we will stand on our rights to adjust the period of leasing. With regard to the
other parts this quotation is valid till December 31, 2002 unless there is talk
of an unchanged positive development within your company.
Special circumstances
1. Contrary to the mentioned in article 5 of our general agreement you have
the right to rent the object to SFEA SA. For the rest the conditions of
article 5 stay unaltered.
2. The rights of the with SFEA SA made rental agreement should be pledged to
us. For this purpose you should send us a to us convenient rental
agreement.
3. On the leasing agreement article 5 sub. d of the general agreement
operational lease is irrelevant.
4. The guarantee property like written down will be a minimum of 30% of the
balance total. There is equity property and security property. The balance
total will be raised with the off balance duties for the determination of
the mentioned percentage.
5. For executing the lease agreement we would like to receive the following:
o an invoice from SFEA SA on behalf of Amstel Lease Maatschappij
N.V. with mentioned the amount of investment to be raised with
V.A.T.
o a copy of an invoice or invoices from the supplier on behalf of
SFEA SA mentioned with the capital expenditure to be raised with
V.A.T.
o a receipt or receipts of the before mentioned copy invoices or
your request to Amstel Lease Maatschappij N.V. to pay on behalf of
the original supplier so we can pay your invoice.
6. The minimum quantity of a call down needs to be E.500.000,00.
7. SFEA SA will invoice Amstel Lease Maatschappij N.V. Per invoice Amstel
Lease Maatschappij N.V. will charge an amount of E.1.250,00 of handling
cost for the calculated V.A.T. The interest difference Amstel Lease
Maatschappij N.V. will suffer caused by the calculated V.A.T. will be
charged to Brink B.V.
8. We receive a copy of valid identification papers of the entitled signers of
this agreement.
Procedure
If you want to use this quotation we would like to ask you to send us a signed
general agreement together with the quotation. One part legally signed and
returned to us. The invoices of the objects need to be on our name. If these
invoices are found correct by you we will draw up the contracts.
By signing this agreement the agreement dated on March 3, 2002 is no longer
valid.
We hope to have informed you sufficiently in this.
GENERAL TERMS AND CONDITIONS (OPERATIONAL LEASE)
Note: the Dutch text of the Master Agreement and the General Terms and
Conditions (Operational Lease) is binding, the English text is solely provided
for translation purposes.
Unless agreed otherwise in writing, the following General Terms and Conditions
will apply to the lease agreement
1. LEASE AGREEMENT; EQUIPMENT; OWNERSHIP
1. Amstel Lease Maatschappij N.V., hereinafter referred to as Amstel
Lease, and client have concluded a lease agreement under which Amstel
Lease shall make the equipment specified in the lease agreement,
hereinafter referred to as the equipment, available for use by client,
and client shall use the equipment during the agreed period and against
the agreed periodic instalments.
2. Both the equipment and the supplier of the equipment have been chosen
by client personally. Amstel Lease shall pay the supplier the purchase
price. Following transfer of title to the equipment by the supplier to
Amstel Lease, Amstel Lease shall provide the equipment to client for
use. Amstel Lease will remain the owner of the equipment. Client shall
keep the equipment in its possession for Amstel Lease. All fiscal
rights relating to the equipment will also accrue to Amstel Lease. The
client shall refrain from making any claim with respect to the fiscal
rights. The client shall therefore not recognise any depreciation in
respect of the equipment. The equipment shall be for the account and
risk of client during the term of the lease agreement.
3. If the equipment is a registered vehicle, client shall ensure that the
copy of part III of the vehicle's registration certificate is in the
possession of Amstel Lease.
2. DELIVERY AND INSTALLATION
1. All expenses incurred for the transport, delivery and installation of
the equipment shall be for the account and risk of client. Client may
not hold Amstel Lease liable for any delay in delivery.
2. Following delivery by the supplier, it shall be assumed that client
received the equipment in good condition, found no faults and
established that the equipment agreed with the specification of the
equipment included in the lease agreement.
3. Client shall take all necessary measures for the supplier(s) to deliver
and install the equipment ready for use. Amstel Lease is not liable in
the event of: non-delivery of any part, delayed delivery; nor for any
damage caused during delivery and/or installation of the equipment. If
client is of the opinion during delivery that the equipment delivered
does not agree with the specification or if a hidden or alleged hidden
defect in the equipment is detected at a later date, Amstel Lease shall
on the request and for the account and risk of client assert any rights
against the supplier.
3. PLACING OF THE EQUIPMENT; RIGHT OF ACCESS
1. Client shall place the equipment and use it solely in or at the
building or site used by client for the conduct of its business. This
shall not apply to equipment which, owing to its specific nature, is
not intended for use in a fixed location. Client shall ensure that the
equipment cannot in any way be connected to any movable or immovable
property such that: accession, confusion or specification may occur, or
that the equipment can become a part of any other good. If the
equipment can be made immovable in a legal sense through accession,
confusion or otherwise, client guarantees Amstel Lease that the
possible rights of client or third parties shall not affect the
equipment.
2. If requested, client shall immediately inform Amstel Lease of the place
in which the equipment is located. Client is not authorised to move the
equipment outside the Netherlands without the prior written permission
of Amstel Lease unless the equipment is not generally intended to be
used at a fixed location.
3. Client shall at all times allow Amstel Lease or its authorised
representative to inspect the equipment and to enter its business
premises if necessary to do so, and allow it to inspect all documents
relating to the equipment. In the event of an incident occurring as
referred to in article 12, paragraph 1, of these General Terms and
Conditions,
Amstel Lease shall be entitled to take possession of the equipment. In
such event, client shall grant Amstel Lease or the persons designated
by it access to the place or the building in which the equipment is
located.
4. USE AND MAINTENANCE
1. Client shall use the equipment expertly and in agreement with
applicable laws, regulations, etc. for the purpose for which it was
designed and installed and solely in the course of its business or
profession. Client shall keep the equipment in a good state of repair
and maintenance and if necessary have it repaired, all for its own
account. Client is responsible for the equipment always being operated,
maintained and repaired by expert personnel. If client does not
properly maintain or have maintained the equipment, Amstel Lease shall
be entitled to have such done at client's expense by a third party or
parties designated by Amstel Lease. In such cases, Amstel Lease shall
consult client in advance where possible. Client shall have components
replaced when necessary. Once fitted, replacement components shall also
be the property of Amstel Lease, without prejudice to Amstel Lease's
right to demand that the equipment be restored to its original
condition at the client's expense when returned. Client shall also
ensure that the equipment is effectively protected against fire, theft
and damage. Client is not entitled to make changes in or to the
equipment without the prior written consent of Amstel Lease.
2. If client cannot use the equipment on account of malfunctions or any
other cause, client shall not be entitled to suspend or terminate its
payments to Amstel Lease, have the lease agreement dissolved or demand
any other form of compensation from Amstel Lease. Failure by the
supplier or the party with whom client has concluded a maintenance
contract to fulfil any warranty and/or maintenance commitment shall be
for the account and risk of client.
5. BAR ON RENTING OUT THE EQUIPMENT
Client is not entitled to pledge or otherwise encumber the equipment. Nor
may client rent out the equipment or in any other way allow third parties
to use it without the prior written consent of Amstel Lease.
6. ATTACHMENT AND THIRD-PARTY MEASURES
If third parties wish to enforce rights or take measures in respect of the
equipment, client shall without delay inform Amstel Lease thereof and
immediately provide such third parties with proof of Amstel Lease's
ownership.
If third-party measures remove the equipment from client's power, client
shall inform Amstel Lease thereof within 24 hours and take counter-measures
itself if necessary. To protect its rights, Amstel Lease shall take all
measures it deems necessary, if needs be in the name of client. The cost of
such measures shall be for the account of client and shall be settled on
Amstel Lease's first demand.
7. INSURANCE, LOSS AND DAMAGE
1. Client shall insure the equipment against all insurable risks at its
own expense. These risks shall be kept insured throughout the duration
of the lease agreement on terms and conditions and with insurers
acceptable to Amstel Lease. Client shall provide Amstel Lease with
written confirmation by the insurer(s) that the insurance has been
effected. Upon request, client shall without delay provide Amstel Lease
with receipts or other documents evidencing payment of premiums to the
insurer(s). Upon request, client shall allow Amstel Lease to inspect
the insurance policies. Client shall have Amstel Lease included in the
policy as a co-insured party without Amstel Lease becoming liable for
payment of premiums and without insurers having the right to claim
costs from Amstel Lease. The following clauses shall be included in the
policy:
- 'Any amounts paid as a result of a claim for damage shall be paid
to Amstel Lease Maatschappij N.V. unless this party gives written
authorisation for payment to be made directly to the other
co-insured party'.
- 'Any statutory liability of Amstel Lease Maatschappij N.V. in
respect of the insured equipment is covered'.
- 'The cover in respect of Amstel Lease Maatschappij N.V. may not be
restricted or terminated without notice of the intention to do so
being provided to Amstel Lease Maatschappij N.V.'.
Client shall strictly observe all provisions of the insurance policy.
Client shall become liable to Amstel Lease in the event of any
negligence in this respect.
2. In the event of loss of or damage to the equipment to such an extent
that the equipment is, in the opinion of the expert appointed by the
insurer, no longer able to be repaired, the lease agreement shall
terminate.
Client shall then be liable to Amstel Lease for the full amount of the
remaining lease instalments that would have been due had the agreement
expired in the normal way plus the amount of the purchase option. This
amount shall,
however, be reduced by the amount payable to Amstel Lease by the
insurer, after deduction of any costs incurred by Amstel Lease.
In the event of the amount received by Amstel Lease being in excess of
the total amount owed by client, including any costs incurred by Amstel
Lease, the excess shall be refunded by Amstel Lease to client.
3. Should client and Amstel Lease have agreed in the lease agreement,
contrary to the above provisions, that Amstel Lease shall be
responsible for insuring the equipment, the following shall apply:
Amstel Lease shall arrange comprehensive insurance with an insurer of
its choice. The excess per claim is for client's account, as are any
risks not covered by the insurance. Client shall strictly observe all
provisions of the insurance policy. The terms and conditions of the
policy shall be available for inspection at the offices of Amstel
Lease.
During the period of the agreement, Amstel Lease shall be entitled to
pass on to client any increases in insurance premiums or other costs
relating to the insurance. If, as a result of a claim or claims or for
any reason whatsoever, the insurer increases the premium or the amount
of the excess, such shall be for client's account with effect from the
date of the increase. If the insurer decides to cancel or terminate the
insurance for any reason whatsoever, all risks insurable in respect of
the equipment shall be for client's account with effect from the moment
of cancellation or termination.
4. Unless its exposure inevitably entails some degree of loss, Amstel
Lease accepts no responsibility whatsoever for any damage and/or costs
incurred by client as a result of any defect and/or damage to the
equipment and/or third parties. Client indemnifies Amstel Lease against
any claims brought by third parties in respect of damage caused by the
installation, transport, use, maintenance, etc. of the equipment and
against all losses and consequential losses due to any defect and/or
damage to the equipment suffered by client and/or third parties, such
to include client's operative and other personnel.
5. Amstel Lease is not obliged to indemnify any loss or damage to client
with regard to: poor performance, tort, error, fraud, deception, abuse
of circumstances, foreclosure or otherwise. Nor shall Amstel Lease
provide any guarantee of the state, suitability for any purpose or
quality of the equipment. Client guarantees Amstel Lease that the
equipment agrees with or shall remain in accordance with the
specifications of the purchase agreement. Client shall immediately
inform ▇▇▇▇▇▇ Lease whenever one of the circumstances referred to above
occurs.
8. WARRANTY
In all cases in which the supplier does not fulfil its warranty or other
commitments, client shall immediately inform Amstel Lease. In such cases,
Amstel Lease shall on client's first request endeavour to have the supplier
fulfil its commitments, unless Amstel Lease prefers to transfer its rights
in such cases to client.
9. SETTLEMENT
Client shall settle the amounts owed by it to Amstel Lease under the lease
agreement promptly and without discount or set-off. An extract signed by
Amstel Lease from its accounts shall serve as prima facie evidence of the
amount owed to Amstel Lease by client, unless there is evidence to the
contrary. Client may never suspend fulfilment of the commitments agreed in
the lease agreement, even where the amount owed is disputed.
10. WAIVER OF RIGHT TO DISSOLUTION
Client explicitly waives its right to demand dissolution of the lease
agreement, unless the purchase agreement concluded for the equipment
between Amstel Lease and the supplier is dissolved by Amstel Lease due to
any of the circumstances referred to in article 7, paragraph 5, and ▇▇▇▇▇▇
▇▇▇▇▇ is completely reimbursed by the supplier or client.
11. RETURN DELIVERY ON EXPIRY OF THE LEASE AGREEMENT; PURCHASE OPTION
1. On expiry of the lease agreement, client shall immediately return the
equipment at is own expense and in a good state of repair -- barring
normal wear and tear -- to an address to be specified by Amstel Lease.
Notwithstanding the other provisions of the lease agreement, client
shall remain liable to pay the lease instalments at least until the
date of return.
2. If the lease contract contains an option to renew, the client shall, in
the event that it wishes to avail itself of this option, notify Amstel
Lease accordingly by registered letter no later than two months prior
to expiry of the lease contract. During the renewal period, the client
shall be able to cancel the lease contract at any time by giving two
months' notice. Cancellation shall be made by registered letter. If the
client avails itself of the renewal option, the provisions of clause 1
of this article shall not apply until the end of the renewal period.
3. If the lease contract contains an option to purchase, the client shall
have the right, on condition that it has met all its liabilities under
the lease contract, to acquire ownership of the equipment on expiry of
the lease contract for payment of the purchase option price agreed
between Amstel Lease and the client. In the event that the client
wishes to avail itself of this purchase option, it shall notify Amstel
Lease accordingly by registered letter no later than two months prior
to expiry of the lease contract. In that event, the client shall be
liable to pay the amount of the purchase option on the expiry date of
the lease contract. If the client avails itself of the purchase option,
the obligations referred to above in Article 11, clause 1, shall cease
to apply.
12. IMMEDIATE TERMINATION
1. Amstel Lease shall be entitled to terminate the lease agreement
immediately and without judicial intervention, without prejudice to its
right to demand proper fulfilment by client:
a. if client, after being served notice of default, fails to settle
any amount owed by it to Amstel Lease;
b. if client, despite being notified by ▇▇▇▇▇▇ ▇▇▇▇▇, fails to fulfil
any other provision of the lease agreement in full, on time or
adequately or acts in contravention thereof;
c. if circumstances arise on client's side which in the opinion of
Amstel Lease entail a considerable increase in its risk and/or
could hinder the normal settlement of the lease agreement;
d. if client, compulsorily or otherwise, decides to liquidate,
terminate in full or in part, relocate outside the Netherlands or
dispose of its business or, if client is a natural person, on the
death of client or his being sentenced to be detained or
imprisoned;
e. if client makes any scheme of arrangement with creditors, fails to
pay any amount payable to third parties or if application is made
by client or on client's behalf for a suspension of payments or an
insolvency order;
f. if all or part of client's assets or property rights are seized,
whether or not the equipment referred to in this agreement is
seized, or claimed by public authorities;
g. if client loses control of all or part of its assets or if a
licence or registration necessary for the conduct of its
profession or business is revoked;
h. if the security provided by client or third parties is, in the
opinion of Amstel Lease, no longer adequate and client fails to
provide within one month of request other personal or collateral
security to the satisfaction of Amstel Lease;
i. if before or on entering into the lease agreement client provided
or had provided incorrect or incomplete statements or information,
insofar as the inaccuracy, incompleteness or concealment was of
such a nature that Amstel Lease would not have concluded the lease
agreement or would not have concluded it on the same conditions if
it had known the true state of affairs;
j. if any damage is occasioned to the equipment that is not
reimbursed by the insurers.
In the event of termination in one or more of the circumstances listed
above under a. to j. inclusive, client shall pay Amstel Lease
compensation payable on demand and not open to mitigation equal to the
total of the lease instalments due but not settled and the lease
instalments for the remaining number of months that the lease agreement
would have been in force until normal expiry, plus expenses, interest
and damages. Amstel Lease shall be entitled to recover multiple damages
from client.
2. If a circumstance arises as referred to in paragraph 1 of this article,
client shall no longer be entitled to use the equipment. In such event,
Amstel Lease shall be entitled to take possession of the equipment at
client's expense.
3. Client may derive no rights from the provisions of article 14 below in
the circumstances referred to in paragraph 1 of this article.
13. INTEREST ON OVERDUE PAYMENTS
Without prejudice to the provisions of article 12, if client fails to pay
promptly any amount due under the lease agreement, it shall be liable to
pay interest on the amount owing at the rate of 1.5% per month until the
date on which settlement is received, whereby a part of a month shall be
regarded as a whole month.
14. PREMATURE TERMINATION
In the event of negotiations between the client and Amstel Lease at any
time during the period of the lease contract concerning premature
cancellation or amendment of the lease contract, the starting position of
such negotiations shall be that the client will be liable to pay to Amstel
Lease the lease instalments for the remaining part of the lease period
together with the amount of the previously agreed purchase option or, where
no purchase option has been agreed, the residual value of the equipment as
at the end of the lease period concerned as determined by Amstel Lease.
15. REPLACEMENT EQUIPMENT
If, in connection with repair, inspection or some other connection,
replacement equipment is made available to the client, such equipment shall
be treated as equal to the original equipment for the purposes of applying
the provisions of the lease contract.
16. LEGAL COSTS, TAXES
1. All costs incurred by Amstel Lease for the exercise and retention of
its rights under the lease agreement, including the cost at law or
otherwise of debt collection, shall be paid by client to Amstel Lease
on Amstel Lease's first demand. The extra-judicial cost of collecting
monetary claims shall be fixed at 15% of the amount payable, with a
minimum of NLG 250 excluding VAT.
2. The client shall also pay taxes, charges and/or registration fees and
any charges made by the bank for payment transactions and the transfer
of funds in respect of the lease agreement, the equipment or the use of
the equipment.
17. CHANGE OF ADDRESS
Client shall immediately inform ▇▇▇▇▇▇ Lease in writing of any change in
its address. Amstel Lease shall be entitled to consider the address given
by client on or before entering into the lease agreement to be client's
correct address until written notice of a new address is sent to Amstel
Lease by registered mail.
18. APPLICABLE LAW AND COMPETENT COURT
The lease agreement shall be governed exclusively by Netherlands law. Any
legal disputes shall be brought exclusively before the competent court at
Utrecht, without prejudice to the right of Amstel Lease to bring a dispute
before the court in the district where the client is domiciled.
19. WORKING ENVIRONMENT
Client and Amstel Lease declare that these General Terms and Conditions
will be applicable to them to the exclusion of any others with respect to
the elaboration and performance of this lease contract. Any agreements
departing from the lease contract or from these terms and conditions shall
not be binding unless they have been expressly confirmed in writing by
Amstel Lease. If client is understood to mean more than one natural person
and/or legal entity, waiver of the amount owed by one of these debtors
having a joint and several liability or discharge of that debtors its
liability will not in any way release the remaining debtors from their
liabilities vis-a-vis Amstel Lease.