EXHIBIT 10 (xx)
407
----------
THE TIREX CORPORATION
----------
EQUIPMENT LEASE AND PURCHASE AGREEMENT
Equipment Lease and Purchase Agreement, made, as of the 12th day of
December 1997, between:
750824 Alberta Ltd.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "Operator")
and
The Tirex Corporation
▇▇▇ ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "Manufacturer")
1. DEFINITIONS
1.1 "Acceptance Date" shall mean the first day following the completion of
the Test Period.
1.2 "Anticipated Delivery Date" shall mean September 15, 1998 or such
other date as the parties hereto shall mutually agree.
1.3 "Leased Proprietary Equipment" shall mean all of the following
constituent, integral parts of the TCS-1 System and all substitutions,
replacements, and improvements, and all repair and renewal parts installed
therein, as specified in the plans and specifications therefor, attached as
Schedule 1.3 hereto:
(a) the disintegration system including but not limited to all grinders
contained therein, and
(b) the separation systems, including but not limited to:
(i) a magnetic separator;
(ii) a fiber/crumb separator;
(iii) fiber collector
(iv) crumb rubber sizing system; and
(v) all integrated conveyance and exit belts, chutes, and other
components
1.4 "Maintenance Agreement" shall mean the maintenance agreement of to be
entered into between the Manufacturer and the Operator respecting the
maintenance of the TCS-1 System.
408
1.5 "Manufacturer" shall mean The Tirex Corporation and Tirex Canada Inc.,
and all other corporations, partnerships, or other entities, now or in the
future controlled by, under common control with, or in control of, The Tirex
Corporation, jointly and severally.
1.6 "Non Proprietary Equipment" shall mean all of the following
constituent, integral parts of the TCS-1 System:
(a) all baling systems contained in the TCS-1 System, including all
associated ancillary equipment and conveyance and exit belts, chutes
and/or other components combined or integrated therewith, as
specified in the pertinent plans and specifications therefore; and
(b) freezing ▇▇▇▇▇▇▇▇ and cryogenic systems and all substitutions,
replacements, and improvements, and all repair and renewal parts
installed therein, as specified in the plans and specifications
therefore;
1.7 "Operator" shall mean ▇▇▇▇▇▇ Alberta Ltd., a corporation existing
under the laws of the Province of Alberta, and all other corporations,
partnerships, or other entities, now or in the future controlled by, under
common control with, or in control of, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd., jointly and
severally.
1.8 "Proprietary Front-End System" shall mean the manufacturer's
proprietary front-end tire preparation system, all substitutions, replacements,
and improvements, and all repair and renewal parts installed therein, as
specified in the plans and specifications therefor, attached as Schedule 1.8
hereto.
1.9 "Purchased Equipment" shall mean the Proprietary Front-End System and
the NonLeased Proprietary Equipment, as those terms are defined in Sections 1.8
and 1.6 (b), collectively.
1.10 "Site" shall mean a site located in Calgary AB, to be identified by
the Operator.
1.11 "TCS-1 System" shall mean the Manufacturer's proprietary cryogenic
tire disintegration system, patent pending, consisting of the Proprietary
Front-End System, the Nonproprietary Equipment and the Leased Proprietary
Equipment, as specified in the plans and specifications attached as Schedule
1.3, 1.6 (b), and 1.8 hereto and all substitutions, replacements, and
improvements, and all repair and renewal parts installed therein.
1.12 "Test Period" shall mean a three (3) day period which shall commence
within ten (10) business days after completion of the installation of the TCS-1
System, during which Test Period, the TCS-1 System shall be operated continually
for 22 hours per day exclusive of any time devoted to adjustments and
acclamation.
2. RECITALS
Whereas:
409
2.1 The Manufacturer has invented, built, and patented (patent allowed as
of October 23, 1997), and is the sole and exclusive owner, directly or
indirectly, through one or more subsidiaries, of all right title and interest in
the TCS-1 System.
2.2 The Operator is a Corporation incorporated under the laws of the
Province of Alberta, Canada, formed for the purpose of engaging, directly or
indirectly in the scrap tire disintegration business.
3. AGREEMENT FOR PURCHASE AND SALE OF PROPRIETARY FRONT-END
AND NON PROPRIETARY EQUIPMENT
3.1 Purchase and Sale
The Operator agrees to purchase, and the Manufacturer agrees to sell, the
Proprietary Front-End System and the Non Proprietary Equipment, as defined in
Sections 1.6 and 1.8, above (collectively, the "Purchased Equipment"), above, in
accordance with the terms and conditions of this Agreement. The Operator may at
its election take title to the Purchased Equipment in a wholly owned subsidiary
corporation to be formed by it for such purpose. Such election by the Operator
shall nowise modify, diminish, or otherwise affect the Operator's liability
hereunder to the Manufacturer. The purchase and payment for the Purchased
Equipment by the Operator, and the sale, assignment, transfer, and delivery
thereof by the Manufacturer, shall take place subject to the fulfillment of the
conditions hereinafter provided.
3.2 Purchase Price
The purchase price for the Purchased Equipment (the "Purchase Price"),
installed and set in operation pursuant to Section 7 and 8 hereof, shall be the
sum of two million, two hundred fifty thousand United States dollars (US
$2,250,000), FOB Montreal, which shall be deemed allocated as follows:
(a) Freezing Chamber and
Cryogenic Systems US $ 1,500,000
(b) Front End Tire
Preparation and
Bailing Systems 750,000
-------------
Total US $2,250,000
3.3 Payment Terms
The Purchase Price shall be paid by the Operator to the Manufacturer, as
follows:
(a) $25,000 deposit on execution of this Agreement, to be held in escrow
by the Operator's attorneys, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ (the "Escrow Agent"); The Escrow Agent shall release such
down payment to the Manufacturer upon Delivery of the TCS-1 System
to the Operator's
410
Site, at which time such funds will be applied against the first and
last months rental payments under the Operating Lease set forth in
Section 4, below;
(b) $225,000 to be paid within sixty days of the execution of this
Agreement by way of a certified check or bank instrument
satisfactory to the Manufacturer;
(c) Balance to be paid on delivery by way of a certified check or other
bank instrument satisfactory to the Manufacturer.
4. AGREEMENT FOR OPERATING LEASE OF LEASED PROPRIETARY
EQUIPMENT
4.1 Agreement to Lease Equipment
The Manufacturer, as lessor, and the Operator, as lessee, hereby enter
into an operating lease (the "Lease") for the Leased Proprietary Equipment, as
defined in Section 1.3 above, subject to the following terms and conditions:
4.2 Term of the Lease
4.2.1 The term of the Lease shall be sixty (60) months commencing on the
Acceptance date.
4.2.2 At the expiration of the full original term hereof, if this Lease
has remained in effect and the Operator has duly performed all its obligations
thereunder during the entire such term, then the Operator shall have the option
to either:
(a) Obtain a new lease agreement in the form then being generally
offered by the Operator to the trade with renewal terms, as agreed
by the parties;
(b) Continue to use the same equipment installed hereunder and thereby
extend the term of this Lease at the a rental rate of US $6,250 per
month for a period of one year with further successive automatic
one-year extensions subject to either party's right to terminate
this Lease at the end of any extension year by at least 90 days
prior written notice of termination of the other; or
(c) Request that the Manufacturer exercise its right of first refusal to
repurchase the Purchased Equipment pursuant to Section 13.1 of this
Agreement, in which event the Manufacturer shall have thirty (30)
days to either: (i) notify the Operator of its intent to repurchase
the Purchased Equipment and, within sixty (60) days of such notice,
effectuate such repurchase and thereupon enter upon the premises
where the said TCS-1 System is located and remove the entire TCS-1
System from the
411
Operator's premises at the Manufacturer's expense, or (ii) notify
the Operator that it does not intend to repurchase the Purchased
Equipment and, within thirty (30) days of such notice, enter upon
the premises where the TCS-1 System is located, take possession of
the Leased Proprietary Equipment without previous demand or notice
and without legal process, retrieve the Leased Proprietary Equipment
from the TCS-1 System and remove the Leased Proprietary Equipment
from the Operator's premises at the Manufacturer's expense.
4.3 Rent Payments
4.3.1 The Operator shall pay to the Manufacturer monthly rental payments
(the "Rent Payments") for the Leased Proprietary Equipment at the rate of twelve
thousand, five hundred United States dollars (US $12,500) per month, payable in
advance, as follows:
(a) the Rent Payment for the first 30-day period (the "Set-Off Period")
following the Acceptance Date shall be paid by way of a set-off in
the amount of US $12,500 against the deposit heretofore paid by the
Operator;
(b) the Rent Payment for the period (the "Partial-Month Period") which
commences on the first day following the Set-Off Period and ends on
the last day of the calendar month in which such Partial-Month
Period falls, will be payable in cash on the first day of such
Partial-Month Period, on a pro rata basis.
(c) Normal monthly Rent Payments of US $12,500 will commence and be
payable on the first day of the first full calendar month following
the Partial-Month Period, and shall be due and payable, in advance,
on the first day of each of the remaining months during the term of
the Lease except for the last month. Payment of the last month's
monthly Rent Payment shall be made by way of a set off against the
remaining $12,500 of the deposit paid by the Operator upon execution
of this Agreement.
EXAMPLE:
Acceptance Date: September 15th
Set-Off Period: September 16th through October 15th.
Partial-Month
Period: October 15th through October 31st, with Rent
Payment in the amount of $4,385 due and
` payable on October 15th.
Commencement of Regular
412
Monthly Rental Payments November 1st, normal monthly Rent Payment of
$12,500 due and payable on such date.
4.3.2 In the event of that payment of any Rent Payment is made by the
Operator more than ten (10) days after the date when such payment shall have
been due, the Operator shall pay a late charge of one and a half percent (1.5 %)
of the entire amount of such Rent Payment for every month in which such
delinquency occurs or continues.
5. TITLE TO EQUIPMENT
5.1 Title to Purchased Equipment
5.1.1 Title to the Purchased Equipment shall pass to the Operator upon
payment in full of the balance of the Purchase Price, due on the Acceptance
Date.
5.1.2 No rights to any plans or designs respecting the TCS-1 System shall
pass to the Operator and the Operator shall not copy, reproduce, design, or
build, or cause, assist, or suffer to be copied, reproduced, designed, or built
by any other person, firm, or corporation any equipment in any way similar to,
or based upon, the design or structure of the TCS-1 System.
5.2 Title to Leased Proprietary Equipment
5.2.1 The Leased Proprietary Equipment shall at all times remain the sole
and exclusive property of the Manufacturer (which reserves the right to assign
or encumber the Leased Proprietary Equipment) and the Operator shall have no
right, title, or interest to the Leased Proprietary Equipment but only the right
to use such Equipment under this Lease. The Leased Proprietary Equipment shall
not be transferred or sublet by the Operator to any other person, firm or
corporation, the Operator shall not permit any other person, firm, or
corporation to use the Leased Proprietary Equipment, and this agreement may not
be assigned by the Operator either by its own act or by operation of law.
5.2.2 The Leased Proprietary Equipment shall remain personal property and
shall not be deemed otherwise by reason of becoming attached to the premises.
5.2.3 The Manufacturer shall have the right at any time or from time to
time to modify the Leased Proprietary Equipment in a manner which will not
lessen the utility of the Leased Proprietary Equipment;
5.2.4 The Operator shall not enter into, remove, tamper with, or breach
the security of, the Leased Proprietary Equipment. The Operator shall not copy,
reproduce, design, or build, or cause, assist, or suffer to be copied,
reproduced, designed, or built by any other person, firm, or corporation any
equipment in any way similar to, or based upon, the design or structure of the
Leased Proprietary Equipment, or of any part thereof. The Operator shall not
permit any Leased Proprietary Equipment to be abused, not permit the removal of
any descriptions, instructions, warnings plate or markings, or other writings of
any kind whatsoever put on the Leased Proprietary Equipment by the Manufacturer,
nor attach anything to or remove anything from the Leased Proprietary Equipment.
413
5.2.5 In accordance with the terms of the Maintenance Agreement, the
Operator will not allow any repairs to the TCS-1 or replacement of parts to be
done by any person or persons except technicians authorized by the Manufacturer.
5.2.6 The Operator agrees that, in consideration of the Manufacturer
entering into this Lease, it will not move the TCS-1 System, of which the Leased
Proprietary Equipment forms a part, to any location outside of the state in
which the Site is located or outside of a fifty (50) mile radius of the Site,
without the prior written consent of the Manufacturer.
6. SITE PREPARATION
6.1 Site Plan Specifications
Within thirty (30) days of execution of this Agreement, the Manufacturer
will furnish to the Operator "Site Plan Specifications" respecting the
electrical, ventilation, water supply and disposal, and any other specifications
required at the site for the installation and operation of the TCS-1 System.
6.2 Preparation of Site
6.2.1 Prior to the Delivery and installation of the TCS-1 System, the
Operator shall make, at its own expense, all alterations to and changes in its
premises and equipment required to bring the site into complete conformance with
the above referenced Site Plan Specifications, with respect to which the
Operator shall obtain all necessary permissions and inspections, and which shall
include but not be limited to making any required structural changes and the
installation of:
(a) electrical equipment and power lines up to the electrical inputs or
control boxes attached to the TCS-1 System, as designated on the
Site Plan Specifications;
(b) water supply sources and equipment up to the water inflow points
designated on the Site Plan Specifications;
(c) water drainage and disposal sites and equipment from the water
outflow points designated on the Site Plan Specifications;
(d) air ventilation sources and equipment as designated on the Site Plan
Specifications
6.3 Notice to Inspect
6.3.1 The Operator shall, not later than one month prior to the
anticipated Delivery Date, give written notice to the Manufacturer (the "Notice
to Inspect") that: (i ) preparation of the site for the installation and
operation of the TCS-1 has been completed in accordance with the Site Plan
Specifications and (ii) all applicable governmental regulations have been
complied with and all required permits, licenses, and standards have been
obtained or met (together with copies of all documentary evidence thereof) and
request that the Manufacturer inspect the site in order to confirm the
foregoing.
414
6.4 Manufacturer's Right to Inspect Site
6.4.1 The Manufacturer shall have the right, at any time within two weeks
of its receipt of the Notice to Inspect, to inspect the site and notify the
Operator in writing (the "Notice of Approval") that the Site is in conformance
with the Site Plan Specifications and that all legal requirements have been met.
6.4.2 In the event that, after inspecting the Site, the Manufacturer
determines that the Site is not in conformance with the Site Plan Specifications
or that any legal requirements have not been met, then the Manufacturer shall
have the right to require that the Operator make any and all changes or
additions required to bring the Site into such conformance, at the sole expense
of the Operator prior to the Delivery Date and to reschedule the Delivery Date
after all such changes or additions are completed and/or all legal requirements
are complied with. In such event, the Operator shall, upon completion of the
required changes or additions, give written notice to the Manufacturer ("Notice
to Re-inspect") that such changes or additions have been made in accordance with
the Manufacturer's instructions or governmental regulations and that the Site is
in complete conformance with the Site Plan Specifications and all applicable
regulations. The Manufacturer shall have the right, within two weeks of its
receipt of such Notice to reinspect the Site. Such procedures may be repeated,
and the Manufacturer shall have no obligation to deliver the TCS-1 System, until
the Manufacturer confirms upon inspection that the Site is in conformance with
the Site Plan Specifications, all governmental regulations are complied with,
and the Delivery Date is rescheduled in accordance with this Paragraph 6.4.2.
7. DELIVERY AND INSTALLATION
7.1 Delivery
7.1.1 If, by a date not later than fifteen business days prior to the
Anticipated Delivery Date, the Site is in conformance with the Site Plan
Specifications and all legal requirements have been met in accordance with
Section 6.4, above, then the Manufacturer shall deliver the TCS-1 System to the
Site on or before the Anticipated Delivery Date set forth in Paragraph 1.2,
above.
7.1.2 In the event that the Operator shall not meet the requirements of
Paragraph 7.1.1, above, for delivery not later than the Anticipated Delivery
Date, then, within ten business days of the date when the Site Plan
Specifications and all legal requirements have been met, the Manufacturer shall
reschedule a new delivery date, which new delivery date shall not be later than
fourteen months from the date of such rescheduling.
7.1.3 Delivery shall be made F.O.B. Montreal, Canada. The equipment
comprising the TCS-1 System shall be placed in suitably protected containers the
nature of which shall be determined by the Manufacturer. The Operator shall pay
all costs of transportation and delivery of the TCS-1 System from the
Manufacturer's plant in Montreal to the Site.
7.1.4 In the event that delivery of the TCS-1 System, or any part thereof,
for a period not exceeding sixty (60) days, shall be prevented by causes beyond
the control of the Seller,
415
including but not limited to acts of God, labor troubles, failure of essential
means of transportation, or changes in policy with respect to exports or
otherwise by the government of the jurisdiction in which the Operator is
located, the Delivery Date shall be rescheduled after all of such causes have
been eliminated. In the event, however, that such nondelivery continues after
such extended period, the Operator and the Manufacturer shall each have the
right to cancel this agreement by written notice, and in such case there shall
be no obligation or liability on the part of either party with respect to such
undelivered equipment.
7.2 Installation
7.2.1 Within 5 days of the delivery of the TCS-1 System to the Site, the
Manufacturer shall, at its own expense, commence installation of the TCS-1
System at the Site.
7.2.2 Upon installation, the TCS-1 System shall be in complete working
order and shall consist of the Nonproprietary Equipment and the Purchased
Equipment, as specified in the plans and specifications set forth in Schedules
1.3,1.6 (b), and 1.8 hereto.
7.2.3 All equipment and labor required for installation shall be provided
by the Operator. The Manufacturer will provide to the Operator, not less than
two weeks prior to delivery, a list of all requirements necessary for
installation.
8. EQUIPMENT TESTING AND OPERATOR'S ACCEPTANCE
8.1 Notice of Availability for Testing
Upon completion of the installation of the TCS-1 System at the Site, the
Manufacturer shall give the Operator written notice that the TCS-1 System is
available for testing operations.
8.2 Test Period
8.2.1 Immediately upon giving notice to the Operator that the TCS-1 System
is available for testing operations, the Manufacturer shall, within ten business
days, at its own expense, provide a technical representative to supervise the
operation of the TCS-1 for a period of three (3) days (the "Test Period").
During the Test Period, the TCS-1 System shall operate in accordance with the
specifications set forth in Schedule 8.2 hereto, continually for 22 hours per
day.
8.2.2 All power, fuel, light, water, oil, or other necessary supplies and
all necessary personnel (other than the engineering technician furnished by the
Manufacturer) for the successful operation of the TCS-1 System, shall be
provided by the Operator.
8.2.3 The Manufacturer shall furnish to the Operator all data regarding
the TCS-1 System in order to enable the Operator to operate such System and, in
addition to the training to be provided pursuant to the Maintenance Agreement,
the Manufacturer shall, during the Test Period, instruct at least 2 of the
Operator's employees with respect to the operation, and operating
416
maintenance of the TCS-1 System, and use reasonable care in training such
employee, provided that if in the Manufacturer's sole opinion any employee is
not adequately qualified, the Operator shall designate another of its employees
to receive such instruction.
8.3 Acceptance
8.3.1 Unless the TCS-1, or any part of it, fails to operate in accordance
with the specifications set forth in Schedule 8.2 hereto, the Manufacturer's
offer to sell the NonLeased Proprietary Equipment and to lease the Leased
Proprietary Equipment to the Operator shall automatically be deemed to have been
accepted by the Operator as of the Acceptance Date, which shall occur on the
first day following the completion of the Test Period and the Operator shall
have no right to revoke such acceptance for any reason.
8.3.2 If the TCS-1, or any part of it, fails to operate in accordance with
the specifications set forth in Schedule 8.2 hereto, the Manufacturer shall have
30 days in which to cure the problems responsible for such failure. Costs of all
parts and labor required to bring the TCS-1 into full working condition shall be
borne by the Manufacture unless the failure to operate in accordance with the
specifications set forth in Schedule 8.2. shall have been caused by any act or
failure to act on the part of the Operator or its personnel, including but not
limited to the failure of the Operator to have brought the Site into conformance
with the Site Plan Specifications.
8.3.3 Upon written notice to the Operator that the problems which caused
the TCS-1 System to fail to operate as required during the Test Period have been
cured, the Manufacturer shall, at the request of the Operator, commence a second
Test Period for up to three (3) days, in which case the acceptance criteria of
Paragraph 8.2.1 shall pertain to such second Test Period (or any subsequent Test
Period) with the same force and effect as to the initial Test Period.
9. RISK OF LOSS
9.1 The risk of loss, injury, or destruction of the Leased Proprietary
Equipment from any cause whatsoever, except negligence or willful destruction by
the Operator shall be borne by the Manufacturer during the term of the Lease
therefor provided hereunder.
9.2 The risk of loss, injury, or destruction of the NonLeased Proprietary
Equipment from any cause whatsoever, except negligence or willful destruction by
the Operator shall be borne by the Manufacturer only until title passes to the
Operator.
9.3 Any loss, injury, or destruction to the TCS-1, or any part of it,
after title to the Nonproprietary Equipment passes to the Operator, shall not
serve in any manner to release the Operator from the obligation to pay the Rent
Payments provided for Section 4.3, above.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE
MANUFACTURER
The Manufacturer hereby represents, warrants, and covenants to the
Operator, as follows:
417
10.1 Corporate Status
The Tirex Corporation is (i) duly organized corporation, validly existing
and in good standing under the laws of the State of Delaware; (ii) has full
power to own all of its properties and carry on its business; and (iii) is
qualified to do business as a foreign entity in each of the jurisdictions in
which it operates, if any, unless the character of the properties owned by it or
the nature of the business transacted by it, does not make qualification
necessary in any other jurisdiction or jurisdictions.
10.2 Corporate Action
Prior to the date hereof, the board of directors of the Manufacturer has
duly adopted resolutions approving the execution and delivery to the
Manufacturer of this Agreement and authorizing and consenting to each and every
one of the terms, warranties, representations, covenants and conditions herein
contained.
10.3 Patents
10.3.1 The Manufacturer has applied for a patent in the United States and
Canada for the Disintegration System forming part of the Leased Proprietary
Equipment. On October 23, 1997, the said patent application was allowed by the
United States Patent Office. Upon payment of certain fees, the patent will
therefore be issued. The Manufacturer is the sole owner of such patent
application and, upon the issuance of a patent in respect thereof, the
Manufacturer shall be the sole owner of such patent and of all rights
thereunder.
10.3.2 The Manufacturer shall defend, to the best of its ability and at
its own expense, all actions, suits, or proceedings instituted against the
Operator insofar as the same are based on any claims that the said Leased
Proprietary Equipment, or any part thereof, constitutes an infringement of any
patent of the United States or Canada and shall indemnify the Operator against
all damages, costs, and expenses which the Operator may incur as a result of any
action which may be brought or threatened against the Operator with respect to
the equipment covered by such patent, provided that:
(a) The Manufacturer shall have the right at any time or from time to
time to modify the TCS-1 System in a manner which will not lessen
the utility thereof;
(b) The Operator gives the Manufacturer immediate notice in writing of
the institution of the action, suit, or proceeding and permits the
Manufacturer, through its counsel, to defend same, and gives the
Manufacturer all information, assistance, and authority to enable
the Manufacturer to do; and
(c) The Operator has made no change of any kind in the TCS-1 System
without obtaining the prior written permission of the Manufacturer.
10.3.3 When information is brought to the attention of the Manufacturer or
the Operator that others are unlawfully infringing on the patents covering the
machine, the Manufacturer shall prosecute diligently any infringer at the
Manufacturer's own expense.
418
10.4 Warranties
Subject to any default on the part of the Operator under the Maintenance
Agreement, the Manufacturer warrants that the TCS-1 will conform to the
descriptions contained in Schedules 1.3, 1.6 (b), and 1.8. The Manufacturer
further warrants the TCS-1 System against defects in workmanship and materials
or failure to perform in accordance with the specifications set forth in
Schedule 8.2 for one year after the Acceptance Date. No other representations or
warranties have been made by the Manufacturer or relied upon by the Buyer. If
any defects in the Manufacturer's work or materials are discovered within one
year of delivery the Operator shall give notice within seven (7) days of such
discovery. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES.
11. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE OPERATOR
The Operator hereby represents, warrants, and covenants to the
Manufacturer, as follows:
11.1 Corporate Status of ▇▇▇▇▇▇ Alberta Ltd.
The Operator is (i) a duly organized corporation, validly existing and in
good standing under the laws of the Province of Alberta; (ii) has full power to
own all of its properties and carry on its business; and (iii) is qualified to
do business as a foreign entity in each of the jurisdictions in which it
operates, if any, unless the character of the properties owned by it or the
nature of the business transacted by it, does not make qualification necessary
in any other jurisdiction or jurisdictions.
11.2 Financial Condition of the Operator
The books and records of the Operator are complete and accurate and fairly
present the financial condition and the results of operations of the Operator as
of the date hereof. There are no material liabilities, either fixed or
contingent, not reflected in such books and records other than contracts or
obligations in the ordinary and usual course of business; and no such contracts
or obligations in the usual course of business constitute liens or other
liabilities which, if disclosed, would alter substantially the financial
condition of the Operator as reflected in such books and records.
11.3 Defaults and Conflicts
There are no defaults on the part of the Operator under any contract,
lease, mortgage, pledge, credit agreement, title retention agreement, security
agreement, lien, encumbrance or any other commitment, contract, agreement or
undertaking to which the Operator is a party. The execution of this Agreement
will not violate or breach any material agreement, contract, or commitment to
which the Operator is a party.
11.4 Corporate Action
419
Prior to the date hereof, the Board of Directors of the Operator has duly
adopted resolutions approving the execution and delivery to the Manufacturer of
this Agreement and authorizing and consenting to each and every one of the
terms, warranties, representations, covenants and conditions herein contained.
11.6 Insurance and Damage to Equipment
11.6.1 The Operator, at its own cost and expense, shall insure the Leased
Proprietary Equipment against burglary, theft, fire, and vandalism in the amount
of $500,000, or such other amount that the parties shall agree is required for
replacement costs, and obtain public liability insurance with minimum limits of
$500,000 per occurrence and $1,000,000 collectively, for bodily injury and for
property damage in such form and with such insurance companies as shall be
satisfactory to the Manufacturer. All insurance policies shall name both the
Operator and the Manufacturer as insured parties and copies of the policies and
the receipts for the payment of premiums shall be furnished to the Manufacturer.
Each damage policy shall provide for payment of all losses directly to the
Manufacturer. Each liability policy shall provide that all losses be paid on
behalf of the Operator and the Manufacturer, as their respective interests
appear.
11.6.2 In the event that the Operator shall fail to comply with the
provisions of Paragraph 11.6.1, above, then the Operator shall pay to the
Manufacturer an adequate premium in advance per annum to enable the Manufacturer
to insure the Leased Proprietary Equipment and all such insurance policies shall
be held in the custody of the Manufacturer.
11.6.3 In the event that all or any part of the TCS-1 System is damaged,
due to any cause whatsoever, to the extent that the TCS-1 System is not useable,
notwithstanding that the Manufacturer may have been partially or fully
compensated for the Leased Proprietary Equipment forming part of such damaged
TCS-1 System by way of insurance or otherwise, the Manufacturer shall
immediately have possession of the said Leased Proprietary Equipment and the
Manufacturer may enter upon the premises where the TCS-1 System is located,
remove the Leased Proprietary Equipment from the damaged TCS-1 System and take
possession of the said Leased Proprietary Equipment without previous demand or
notice and without legal process, and remove it from the Operator's premises at
the Manufacturer's expense.
11.7 Access
The Operator shall insure that the Manufacturer, and its agents and
employees, shall at all times have free access to the Operator's premises for
the purpose of inspecting the Leased Proprietary Equipment and observing its use
and operation, and making alterations, improvements, or additions thereto; and
the Operator shall afford all reasonable facilities therefor, and shall allow
the Manufacturer to make such reasonable alterations, improvements, or additions
as the Manufacturer shall deem necessary, at the expense of the Manufacturer.
11.8 Taxes
420
The Operator shall pay all taxes, assessments, penalties, and fees which
may be levied or assessed on or with respect to the installation of the TCS-1
System and, at all times during the term of the Lease of the Leased Proprietary
Equipment, the Operator shall pay all taxes and assessments which may be levied
upon or in respect of the TCS-1 System or its operation, and shall pay any other
liability of any character which may be imposed or incurred as an incident to
the physical possession or operation of such System.
11.9 Compliance with Applicable Law
The Operator shall provide, at its own expense, all requisite permits and
licenses necessary for the installation and operation of the TCS-1 System at the
Site and shall exercise its best efforts to maintain its compliance with all
applicable federal, state, and local laws, statutes, rules, and regulations and,
in the event of any non-compliance which renders impossible the operation of the
Site as a tire recycling facility, the Operator shall exercise its best efforts
to cure such non-compliance promptly.
11.10 Subordination
Not less than three (3) months prior to the anticipated Delivery Date, the
Operator shall procure from every owner, landlord, mortgagee, or other secured
party having any interest in the real property on which the TCS-1 System is to
be installed or in the Operator's place of business or the equipment therein,
and deliver to the Manufacturer, a written consent to such installation and a
writing to the effect that the lien of any such mortgage or other interest is
subordinate to the rights of the Manufacturer with respect to the Leased
Proprietary Equipment.
11.11 Ancillary Agreements
11.11.1 The Operator will, simultaneously with the execution of this
Agreement, and in consideration of the premises and the mutual promises and
agreements made herein, enter into the following agreements with the
Manufacturer or such person, corporation, firm, partnership, or other entity as
the Manufacturer shall appoint in its stead:
(a) The Royalty Agreement, of even date herewith, between the
Manufacturer and the Operator providing for the Operator to pay to
the Manufacturer a royalty of three percent (3%) of the gross
proceeds from the sale by the Operator of rubber crumb fiber and
steel from scrap tires disintegrated by the Operator through the
utilization of the TCS-1 System, a copy of which Royalty Agreement
is attached as Schedule 11.11.1(a) hereto; and
(b) Rubber Crumb Purchase Agreement, attached as Schedule 11.11.1(b) to
this Agreement.
11.11.2 In addition, the Operator will, at such time during the term of
the Lease as the Manufacturer shall request, in further consideration of the
premises and the mutual promises and agreements made herein, enter into a
Maintenance and Technical and Market Support Agreement
421
with the Manufacturer and/or such person, corporation, firm, partnership, or
other entity as the manufacturer shall appoint as its "Service Provider, with
respect to the maintenance of the TCS-1 System and certain technical and market
support services to be provided to the Operator. The terms of the Maintenance
and Technical and Market Support Agreement, which have not yet been finalized,
will require the Manufacturer or Service Provider, during the initial five-year
term of the Lease, except as required for Routine Maintenance Procedures, to
provide or be responsible for all technical and other labor necessary for the
maintenance of the TCS-1 System at a performance level capable of disintegrating
the equivalent of one million automobile tires per year on a twenty-four hour
per day, three hundred sixty-five day per year basis. The Manufacturer and the
Service Provider will also provide additional technical and market support,
including: (i) Pre-Operational Support respecting procedures and requirements
related to obtaining all licenses, permits, and other requirements for the
establishment and operation of a TCS-1 System Plant, including the development,
documentation, and furnishing of all required technical, environmental,
operational, and other information and data; (ii) installation support with
respect to all Site requirements and installation and testing of the System in
accordance with the requirements of the Lease and all applicable federal, state,
and local regulations; (iii) Laboratory Testing Facilities and Services with
respect to the testing and monitoring of the quality and properties of the
rubber crumb produced by the TCS-1 System, including but not limited to: (A)
total production rates (B) the comparative percentages of various crumb rubber
mesh sizes produced, and (C) wear factors existing or developing in the
disintegration mechanisms, so as to generate a continual data base for the
anticipation and determination of the maintenance, remediation, and
recalibration requirements of the disintegration mechanisms and all other
constituent components of the System under actual operating conditions; (iv)
testing and monitoring, on a continuing basis, oil samples from the System so as
to ascertain and monitor the wear factors on the bearings and on other
components of the System and recording and maintaining all test data and records
for the System; (v) creating and developing new products and uses for rubber
crumb produced by the TCS-1 System; and (v) accounting and record keeping
services. The monthly fee under the Maintenance and Technical and Market Support
Agreement will be nine thousand five hundred United States dollars (US $9,500)
per month.
12. DEFAULTS
12.1 Default by Manufacturer
12.1.1 Each of the following events shall be deemed to constitute breach
of this Agreement and, unless cured within ninety (90) days, shall constitute a
default hereunder by the Manufacturer:
(a) If at any time prior to the delivery of the TCS-1 System to the
Site:
(i) The Manufacturer makes an assignment for the benefit of
creditors;
(ii) A voluntary or involuntary petition is filed by or against the
Manufacturer under any law having for its purpose and
adjudication of the Manufacturer a bankrupt or the extension
of the time of
422
payment of, adjustment of, or other arrangement affecting the
liabilities of the Manufacturer, or the reorganization of the
Manufacturer and such petition is not discharged or dismissed
within one hundred twenty (120) days after such petition is
filed;
(iii) A Receiver is appointed for the property of the Manufacturer
and is not discharged or dismissed within one hundred twenty
(120) days after such appointment;
or
(iv) Any distress, execution, or attachment is levied upon the
Manufacturer's property to the extent that the Manufacturer is
not able to fulfill its obligations to deliver the TCS-1
within ninety (90) of the anticipated Deliver Date.
(b) The Manufacturer fails to deliver the TCS-1 System in accordance
with the terms and provisions of Section 7, above, within ninety
(90) days of the Delivery Date unless prior thereto, the Operator
has failed to meet the payment provisions set forth above in Section
3.3 of this Agreement;
(c) The TCS-1 System fails to operate for a full Test (or re-test)
Period, in accordance with Section 8.2 hereof, as specified Schedule
8.2 hereto , within ninety (90) days from the date the TCS-1 System
is actually delivered to the Site.
12.2 Default by Operator
Each of the following events shall be deemed to constitute breach of this
Agreement and, unless cured within ninety (90) days, shall constitute a default
hereunder by the Operator:
(a) The Operator fails to make any payment required to be made pursuant
to Sections 3.3 or 4.3 of this Agreement or any payment required to
be made by the Operator under the Maintenance Agreement and such
failure to make payment shall have continued for a period of ten
(10) days after written notice from the Manufacturer;
(b) The Operator refuses to accept or allow the Manufacturer to install
or test the TCS-1 System in accordance with Sections 7.2, 8.2, and
8.3 of this Agreement, notwithstanding that such System has been:
(i) delivered to the Operator's Site on a timely basis or (ii)
delivered to the Site and has performed in accordance with the
specifications set forth in Schedule 8.2 hereof for the prescribed
Test Period;
(c) The Operator makes an assignment for the benefit of creditors;
(d) A voluntary or involuntary petition is filed by or against the
Operator under any law having for its purpose and adjudication of
the Operator a bankrupt or the extension of the time of payment of,
adjustment of, or other arrangement affecting
423
the liabilities of the Operator, or the reorganization of the
Operator and such petition is not discharged or dismissed within one
hundred twenty (120) days after such petition is filed;
(e) A Receiver is appointed for the property of the Operator;
(f) Any distress, execution, or attachment is levied upon the machines
or the Operator's property; or
(g) The Operator fails to faithfully and fully comply with the terms and
provisions of Section 5.2 of this Agreement, with any such failure
deemed to be an irremediable material breach of this Agreement
immediately upon its occurrence.
(h) The Operator fails to faithfully and fully perform each of its
obligations under the Maintenance Agreement and fails to cure such
breach within the time period specified therein with respect to such
failure.
12.3 Remedies Available to the Operator upon Default by Manufacturer
If the Manufacture shall be in default pursuant to Paragraphs 12.1.1 (a),
(b), or (c) of this Agreement, unless such default shall have been caused by any
act or failure to act on the part of the Operator or its personnel, including
but not limited to the failure of the Operator to have brought the Site into
conformance with the Site Plan Specifications, the Operator shall have the right
to rescind this agreement by serving written notice ("Notice of Rescission")
upon the Manufacturer. In such event, the Manufacturer shall, at its own
expense, remove the TCS-1 System not later than forty-five (45) days following
its receipt of such Notice of Rescission and all monies theretofore paid by the
Operator to the Manufacturer pursuant to Section 4.3, above, shall be returned
by the Manufacturer to the Operator.
12.4 Remedies Available to the Manufacturer upon Default by the Operator
12.4.1 The Operator acknowledges and agrees that its breach of any
provision contained in Section 5.2 of this Agreement will cause irreparable harm
to the Manufacturer. The Operator therefore agrees that, if it is alleged by the
Manufacturer that the Operator or any of the Operator's affiliates, agents,
employees, or associates has breached, or is attempting or threatening to
breach, any provision contained hereinabove in the said Section 5.2, then the
Manufacturer shall have the right to obtain from any court or arbitrator having
jurisdiction, such equitable relief as may be appropriate, including a decree
enjoining the Operator from any further such breach of such provisions, and
enjoining the Operator from engaging in the tire recycling business, either
directly or indirectly through or in association with any other person, firm,
corporation, or organization during the term of this Agreement.
424
12.4.2 In the event of any default by the Operator under this Agreement,
the Manufacturer may at its option, at any time thereafter terminate this
Agreement by written notice ("Notice of Termination"), given in Accordance with
Section 16 hereof. such termination may be made effective, at the option of the
Manufacturer, simultaneously with or at any time after the happening of any such
default.
12.4.3 Upon any termination of this Agreement prior to payment in full of
the entire Purchase Price of US $2,250,000 for Purchased Equipment, in
accordance with the terms of Section 3.3 of this Agreement, the Manufacturer
shall immediately have possession of the entire TCS-1 System, and the
Manufacturer may enter upon the premises where the said TCS-1 System is located,
take possession of it without previous demand or notice and without legal
process, and remove it from the Operator's premises at the Operator's expense.
12.4.4 Upon any termination of this Agreement after payment in full of the
entire Purchase Price of US $ 2,250,000 for the Purchased Equipment has been
made by the Operator, the Manufacturer shall immediately have possession of the
Leased Proprietary Equipment and the Manufacturer may enter upon the premises
where the TCS-1 System is located, remove the Leased Proprietary Equipment from
the said TCS-1 System and take possession of the Leased Proprietary Equipment
without previous demand or notice and without legal process, and remove it from
the Operator's premises at the Operator's expense.
12.4.5 The Operator acknowledges and agrees that any refusal on its part
to permit the Manufacturer to enter its premises and remove either the TCS-1
System or the Leased Proprietary Equipment in accordance with Paragraph 12.4.3
or 12.4.4 of this Agreement will cause irreparable harm to the Manufacturer. The
Operator therefore agrees that in the event of any such refusal on its part, the
Manufacturer shall have the right to obtain from any court or arbitrator having
jurisdiction, such equitable relief as may be appropriate, including a decree
enjoining the Operator from any further such refusal of entry and removal.
12.4.6 In the event of any default by the Operator prior to the Acceptance
Date, the Manufacturer shall be entitled to damages including but not limited to
retention of the full deposit paid by the Operator and all costs of delivering
and removing and re-delivering the TCS- 1 System.
12.4.7 In the event of any default by the Operator after the Acceptance
Date or pursuant to Paragraph 12.2(b) of this Agreement, the Manufacturer shall
be entitled to damages including but not limited to retention of the full
deposit paid by the Operator, all costs of delivering and removing and
re-delivering the TCS-1 System, and damages for the Operator's failure to
perform for the full term of the Lease provided in Section 4.2 of this
Agreement, including but not limited to immediate payment of the balance of all
Rent Payments due under the full term of the Lease,
12.4.8 In the event of any default on the part of the Operator pursuant to
Paragraphs 12.2(a) or 12.2(b) of this Agreement, the Manufacturer shall have the
right to allow the Operator, for a period of sixty (60) days, to obtain a buyer
for the TCS-1 System, satisfactory to the Manufacture, provided however that,
unless specifically waived in writing by the Manufacturer, the Operator shall
continue liable under this Agreement lease for the full term of the Lease
provided for in Section 4.2 of this Agreement.
425
12.4.9 In the event of any default on the part of the Operator, the
Manufacturer shall not be deemed to have waived any of its rights hereunder by
reason of its failure to assert its rights or its failure to take cognizance of
such breach.
12.4.10 The foregoing remedies provided herein for the benefit of the
Manufacturer shall not be exclusive but in addition to any other remedies the
Manufacturer may have by virtue of the breach by the Operator, in law or in
equity, from any court or arbitration proceeding having jurisdiction over such
matter.
13. OPERATOR'S SALE OF NONLEASED PROPRIETARY EQUIPMENT
13.1 Manufacturer's Right to Retrieve Leased Proprietary Equipment Prior to Sale
In the event that, during or after the term of the Lease provided in
Section 4.2 of this Agreement, the Operator wishes to divest itself of the TCS-1
System, pursuant to the discontinuance of its business, or otherwise, the
Operator will give to the Manufacturer written notice to that effect and the
Manufacturer shall have all rights of entry and removal provided above in
Paragraphs 12.4.4 and 12.4.5 of this Agreement, provided however that in
addition to such rights, if such event shall occur during the term of the said
Lease, the Manufacturer shall also have the rights provided to it in Paragraph
12.4.7 of this Agreement.
13.2 Manufacturer's Right of First Refusal
In the event that, during or after the term of the Lease provided in
Section 4.2 of this Agreement, the Operator wishes to divest itself of the TCS-1
System, pursuant to the discontinuance of its business, or otherwise, the
Operator will give to the Manufacturer written notice to that effect and the
Manufacturer will have a right of first refusal to repurchase the TCS- 1 System,
at its fair market value, within a thirty-day period following the
Manufacturer's receipt of such notice;
14. ASSIGNMENT
The Operator shall not transfer, deliver, sublease, or encumber the Leased
Proprietary Equipment to any person, corporation, or firm, and the Lease
provided in Section 4.2 of this Agreement may not be assigned by the Operator
except with the Manufacturer's express prior written consent.
15. FAILURE OF PERFORMANCE
426
Delays in or failure of performance occasioned by war, fire, flood,
embargo, car shortage, accident, explosion, expropriation of plant or product by
federal or state authority, or other like cause beyond the control of the
Manufacturer, or Act of God, or by strike, lockout, or other labor trouble, or
inability to obtain sufficient labor interfering with the production or
transportation of the TCS-1 System, or any part thereof, or any replacement
therefor, whether because of governmental action affecting the Manufacturer or
its suppliers, or by any action or proceeding at law or in equity, or otherwise,
shall not subject the Manufacturer to any liability.
16. NOTICES
All notices required or permitted to be given hereunder shall be mailed by
certified mail, or delivered by hand or by recognized overnight courier to the
party to whom such notice is required or permitted to be given hereunder at the
address set forth above for such party, in all cases with written proof of
receipt required. Any such notice shall be deemed to have been given when
received by the party to whom notice is given, as evidenced by written and dated
receipt of the receiving party. Either party may change the address to which
notice to it is to be addressed, by written notice to the other party, as
provided herein.
17. CONDITIONS PRECEDENT TO MANUFACTURER'S OBLIGATION
The obligations of the Manufacturer hereunder are subject to fulfillment,
prior to the Deliver Date, of the following conditions:
17.1 Truth of Representation
The representations and warranties by or on behalf of Operator contained
in this Agreement or in any document delivered to the Manufacturer pursuant to
the provisions hereof shall be true in all material respects at and as of the
Delivery Date as though such representations and warranties were made at and as
of such time.
17.2 Compliance with Covenants
The Operator shall have performed and complied with all covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by or prior to the Delivery Date.
17.3 Collateral Agreements
Simultaneously with the execution of this Agreement, the Operator will:
427
(a) enter into the following agreements with the Manufacturer or any
joint venture to which the Manufacturer is a party:
(i) the Royalty Agreement, attached as Schedule 11.11.1(a) to this
Agreement; and
(ii) the Rubber Crumb Purchase Agreement, attached as Schedule
11.11.1(b) to this Agreement.
(b) furnish the Manufacturer with a copy of the resolutions of the board
of directors of the Operator authorizing the Operator to purchase
the NonLeased Proprietary Equipment and lease the Leased Proprietary
Equipment pursuant to the terms and conditions of this Agreement;
17.4 Financing Arrangements
The Operator will deliver to the Manufacturer, not less than one hundred
(100) days prior to the anticipated Delivery Date, to confirm the Delivery Date,
an irrevocable commitment for lease or letter of credit financing, which
commitment shall be:
(a) for the full amount of the Purchase Price of the Nonproprietary
Equipment then outstanding;
(b) subject only to the conditions that the TCS-1 will consist of
Equipment specified in, and will operate in conformance with,
Schedules 1.3, 1.6 (b), and 1.8, and respectively.
18. ARBITRATION
All controversies arising out of or relating to this Agreement, or any
modification thereof, shall be settled by arbitration in New York City, pursuant
to the rules then obtaining of the American Arbitration Association.
19. BINDING EFFECT.
19.1 This agreement shall bind and inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns,
provided, however, that this Agreement cannot be assigned by the Operator except
in accordance with Section 14 of this Agreement. Nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any person,
firm or corporation other than the parties hereto and their respective legal
428
representatives, successors and assigns any rights or benefits under or by
reason of this Agreement.
19.2 All the right, title, and interest of the Manufacturer under the
Lease may be enforced by the Manufacturer, its successors, and assigns. The
Lease shall continue in full force and effect notwithstanding the death,
incapacity, or dissolution of the Operator or the increase, decrease, or change
in the personnel of or members of the Operator, and shall be binding upon the
Operator and the Operator's estate, legal representatives, heirs, and
successors.
21. GENERAL
21.1 Further Assurances
At any time, and from time to time, after the execution of this Agreement,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
21.2 Waiver
Any failure on the part of any party hereto to comply with any of its
obligations, agreements or conditions hereunder may be waived in writing by the
party to whom such compliance is owed.
21.3 Brokers
Neither party has employed any brokers or finders with regard to this
Agreement, unless otherwise described in writing to all parties hereto.
21.4 Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
21.5 Governing Law
This Agreement shall be governed by the laws of the State of Delaware.
21.6 Entire Agreement
This Agreement is the entire agreement of the parties covering everything
agreed upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof.
429
21.7 Severability
If any part of this Agreement is deemed to be unenforceable the balance of
this Agreement shall remain in full force and effect.
21.8 Publicity
All notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be subject to the prior
approval of counsel to the Manufacturer.
21.9 Counterparts
This Agreement may be executed in any number of counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, but all of which together shall constitute one Agreement.
In Witness Whereof, the parties hereto have caused this Amendment to be
executed the day and year first above written.
THE TIREX CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
750824 ALBERTA LTD.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
430
THE TIREX CORPORATION
----------
ROYALTY AGREEMENT
----------
Royalty Agreement, made this day of December 1997, between:
Enviropower Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "Operator")
and
The Tirex Corporation
▇▇▇ ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "Manufacturer")
Whereas, the Manufacturer and the Operator are parties to a certain
equipment lease and purchase agreement, of even date herewith (the "Equipment
Lease and Purchase Agreement"), between the Manufacturer and the Operator
respecting the sale by the Manufacturer and the Purchase by the Operator of the
"Proprietary Front-End System", the "Nonproprietary Equipment"(collectively, the
"Purchased Equipment") and the operating lease, between the Manufacturer, as
lessor, and the Operator, as lessee, respecting the "Leased Proprietary
Equipment", as those terms are defined in the said Equipment Lease and Purchase
Agreement.
Whereas, in consideration for the premises and the mutual promises made
therein, the Operator has agreed, pursuant to the Equipment Lease and Purchase
Agreement, to enter into this Royalty Agreement with the Manufacturer whereby
the Operator will pay to the Manufacturer certain royalties calculated upon the
gross proceeds from all sales of rubber crumb, fiber and steel from scrap tires
disintegrated by the TCS-1 System which is the subject of the said Equipment
Lease and Purchase Agreement (the "Subject TCS-1 System").
Now, Therefore, it is agreed as follows:
1. Definitions
1.1 "Manufacturer" shall mean The Tirex Corporation and Tirex-Canada Inc.,
and all other corporations, partnerships, or other entities, now or in the
future controlled by, under common control with, or in control of, The Tirex
Corporation, jointly and severally.
431
1.2 "Operator" shall mean Enviropower Industries, a corporation existing
under the laws of the Province of Alberta, and all other corporations,
partnerships, or other entities, now or in the future controlled by, under
common control with, or in control of, Enviropower Industries, jointly and
severally.
1.3 All other Capitalized terms used herein and not otherwise defined
shall have the respective meanings attributed thereto in the Equipment Lease and
Purchase Agreement.
2. Royalty Fee
2.1 The Operator shall pay to the Manufacturer, not more than fifteen (15)
days after the end of each month, a royalty fee equal to three percent (3%) of
the gross proceeds from all sales of rubber crumb, fiber, and steel from scrap
tires disintegrated by the Subject TCS-1 System (the "Royalty Fee").
2.2 For purposes of this Royalty Agreement, the term "gross proceeds"
shall mean all revenues from the sale of rubber crumb, fiber and steel from
scrap tires disintegrated by the Subject TCS-1 System.
3. Payment Periods
Royalty Fees shall be reported and paid by the Operator to the
Manufacturer every month from the Acceptance Date throughout the life of the
Subject TCS-1 System.
4. Royalty Reports
The Operator shall prepare royalty reports ("Royalty Reports"), to be
delivered by the Operator to the Manufacturer, together with the Royalty Fee due
thereunder, covering the immediately preceding "Reporting Periods", in the
following manner:
The initial Reporting Period shall be the Reporting Period in which the
Acceptance Date falls. For example, if the Acceptance Date is
September 15, 1997, the initial Reporting Period is the two-week
period which commenced on September 15, 1997 and ended on September
30, 1997, and the Royalty Report and Royalty Fee for such "Reporting
Period" is due on October 15, 1997.
(b) Each Royalty Report shall disclose the gross revenues from all sales
of steel, fiber, and rubber crumb produced by the operation of the
Subject TCS-1 System and the amount of the Royalty Fee calculated
upon the gross proceeds therefrom.
5. Inspection of Books
432
Upon written request, the Manufacturer or his designated agent may examine
the books and records of the Operator insofar as they relate to this Royalty
Agreement. Such examination shall take place at the offices of the Operator.
6. Assignment
6.1 This Royalty Agreement may not be assigned by the Operator except as
part of the assignment of the Equipment Lease and Purchase Agreement, which may
only be assigned pursuant to the express written consent of the Manufacturer,
and any such assignment shall not relieve the Operator of its liabilities
hereunder unless expressly waived in writing by the Manufacturer.
6.2 This Royalty Agreement may be transferred, assigned, pledged, or
hypothecated by the Manufacture as part of the sale of its business or
otherwise.
7. Notices
All notices required or permitted to be given hereunder shall be mailed by
certified mail, or delivered by hand or by recognized overnight courier to the
party to whom such notice is required or permitted to be given hereunder at the
address set forth above for such party, in all cases with written proof of
receipt required. Any such notice shall be deemed to have been given when
received by the party to whom notice is given, as evidenced by written and dated
receipt of the receiving party. Either party may change the address to which
notice to it is to be addressed, by written notice to the other party, as
provided herein.
8. Binding Effect.
8.1 This Royalty Agreement shall bind and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
assigns, provided, however, that this Royalty Agreement cannot be assigned by
the Operator except in accordance with Section 6.1 hereof. Nothing herein
expressed or implied is intended or shall be construed to confer upon or to give
any person, firm or corporation other than the parties hereto and their
respective legal representatives, successors and assigns any rights or benefits
under or by reason of this Royalty Agreement.
8.2 All the right, title, and interest of the Manufacturer under this
Royalty Agreement may be enforced by the Manufacturer, its successors, and
assigns. This Royalty Agreement shall continue in full force and effect
notwithstanding the death, incapacity, or dissolution of the Operator or the
increase, decrease, or change in the personnel of or members of the Operator,
and shall be binding upon the Operator and the Operator's estate, legal
representatives, heirs, and successors.
9. Further Assurances
433
At any time, and from time to time, after the execution of this Agreement,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
10. Waiver
Any failure on the part of any party hereto to comply with any of its
obligations, agreements or conditions hereunder may be waived in writing by the
party to whom such compliance is owed.
11. Brokers
Neither party has employed any brokers or finders with regard to this
Agreement, unless otherwise described in writing to all parties hereto.
12. Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
13. Governing Law
This Agreement shall be governed by the laws of the State of Delaware.
14. Entire Agreement
This Agreement and the premises and mutual promises in the Equipment Lease
and Purchase Agreement constitute the entire agreement of the parties covering
everything agreed upon or understood with respect to the Royalty Fees. There are
no oral promises, conditions, representations, understandings, interpretations
or terms of any kind as conditions or inducements to the execution hereof.
15. Severability
If any part of this Agreement is deemed to be unenforceable the balance of
this Agreement shall remain in full force and effect.
16. Publicity
All notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be subject to the prior
approval of counsel to the Manufacturer.
17. Counterparts
434
This Agreement may be executed in any number of counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, but all of which together shall constitute one Agreement.
In Witness Whereof, the parties hereto have caused this Royalty Agreement
to be executed the day and year first above written.
THE TIREX CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ENVIROPOWER INDUSTRIES INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
435