Agreement This Agreement made as of this 26 day of September 2007 by and between: UKCYL LTD. Represented by Dr. Anatoly Zhdankin (hereinafter referred to as “Ukcyl”)
*CONFIDENTIAL
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
This
Agreement made as of this 26 day of September 2007
by
and
between:
UKCYL
LTD.
Represented
by Xx. Xxxxxxx Xxxxxxxx
(hereinafter
referred to as “Ukcyl”)
of
the first part
and
DYNATECH
FURNACES (BOMBAY) PVT. LTD.
Represented
by its Director Xx. Xxxxxxxxx Xxxxxxxxxxx Ganesh
(hereinafter
referred to as the “Supplier”)
of
the second part
| Whereas |
Ukcyl
wishes to purchase from the Supplier a high pressure steel seamless
Cylinder Heat Treatment Furnace Line for a thermal output of 1,200
Kg./Hour capacity including the equipment and accessories as agreed
between the parties (hereinafter: “The Products”);
and
|
| Whereas |
the
Supplier wish to sell and supply to Ukcyl the Products at the prices
and
terms as set forth in this Agreement;
and
|
| Whereas |
the
parties wish to regulate the relationship between them according
to the
terms and conditions hereunder;
|
Now,
therefore, it
is
agreed, declared and stipulated as follows:
| 1. |
General
|
The
preamble to this agreement and the schedules annexed hereto shall constitute
an
inseparable part of this agreement for all respects and purposes.
| 2. |
The
Products Sold
|
| 2.1 |
Ukcyl
hereby purchases from Supplier and Supplier hereby sells to Ukcyl
the
Products.
|
|
2.2
|
The
Products shall be sold and transferred to Ukcyl,
completely new and functioning, without fault and shall operate in
accordance to the agreed specifications
|
| 3. |
Undertakings
of the Supplier
|
|
3.1
|
The
Supplier undertakes to supply to Ukcyl
the Products for the total consideration of $190,000 (one hundred
ninety
thousand US Dollars) (the "Total Price")that shall be paid in accordance
to section 5 hereunder.
|
|
3.2
|
The
Supplier hereby declares that it is the legal owner of the Products
and
has the full right to sell them in accordance to the terms of this
Agreement.
|
| 4. |
Place
and Date of Supply
|
The
Supplier will provide the Products to Ukcyl at its facility in Ambernath near
Mumbai, India and Ukcyl shall cover the expenses of the packing, shipment and
insurance of the Products, The Supplier will supervise and cooperate in the
packing process to ensure the safety of the Products.
| 5. |
Payments
|
|
5.1
|
The
payment of the Total Price shall be made by bank transfer to the
bank
account of the Supplier, as provided to Ukcyl,
in US dollars,
in accordance to the following milestones -
|
| 5.1.2 |
| 5.1.3 |
$
75,000 upon completion of full inspection in India, prior to shipment,
provided the Products meet the specifications in accordance to the
sole
discretion of Ukcyl
.
|
| 5.1.4 |
$30,000
after installation and initial operation in Ukraine, to the satisfaction
of Ukcyl.
|
|
5.2
|
It
is clarified that the payments described in this Agreement are the
total
consideration for the Products. Ukcyl
shall not be required to pay any further sum except that sum.
|
| 5.3 |
The
Supplier shall offer the products for cold inspection at its facility
in
Ambernath, near Mumbai before January 31, 2008. Subsequently the
Supplier
shall dismantle and pack the products for onward dispatch to the
seaport
within 10 working days. There is a grace period of 4 weeks for any
delays
in delivery &inspection
schedule
|
| 6. |
Warranty
and Indemnity
|
|
6.1
|
Supplier
warrants that the Equipment sold to Ukcyl is free from defects in
material
and workmanship, subject to normal use and service during the Warranty
Period.
|
|
6.2
|
The
Supplier warrants that the Products shall operate in accordance to
the
specifications (Appendix A) for a period of 1 years as of the date
of
installation and operation.
|
|
6.3
|
The
Supplier shall repair or replace any component which fails during
the
warranty period and shall bear all expenses regarding such repair,
including packaging, transport and installation costs. Supplier shall
not
repair or replace any of the Products or any component of the Products
if
such repair or replacement is necessitated in whole or in part by:
normal
wear and tear; catastrophe; accident; fault or negligence of the
Customer;
misuse or abuse. Thermocouples and glass flow meter are excluded
from
warranty.
|
|
6.4
|
Within
3 years of the date of the installation the Supplier shall provide
trouble
shooting/ guidance/ advise at no cost. If any engineer needs to be
sent to
site, after 1 year warranty, then all cost related to travel/ lodging/
boarding have to be borne by Ukcyl.
|
|
6.5
|
Supplier
should warrant that the products will be the full property of Ukcyl
without rights of any third parties
|
|
6.6
|
It
is agreed that in the event that the Products shall not conform to
the
specifications as indicated in Appendix A, the Supplier shall pay
Ukcyl
an
agreed upon compensation for damages of $160,000 without derogating
from
any other rights that Ukcyl
may have in connection with this Agreement. The
Products do not
|
conform
to the specifications as indicated in Appendix A if they did not pass one of
the
following tests:
| a) |
Pre
Shipment Test at Mumbai
|
The
parties shall jointly list certain check items like furnace usable
dimensions, cold operation of cylinders - cycle time, output of cylinders per
hour in cold state
If
the
test is successful a Pre Shipment Certificate will allow dispatch of furnace
by
Seller to Buyer
| b) |
Post
Shipment Test at Ukraine
|
The
parties shall jointly list certain check items like temperature level
of both furnaces, hot output of cylinders per hour, hot cycle time.
If
either
of the above two tests fail, then Supplier and the Supplier will be given an
opportunity to correct/ rectify to achieve the above requirements, as per
Appendix A during two weeks.
| 6.5 |
The
Supplier shall indemnify Ukcyl
for any damage and/or other expense that might be caused to Ukcyl
due to any claim and/or suit submitted against Ukcyl
in
connection with the use of the Products, including due to infringement
of
intellectual property of any third party relating to the
Products.
|
| 7. |
Miscellaneous
|
|
7.1
|
The
parties undertake herein by a fundamental undertaking to observe
in
complete secrecy, not to disclose and not to forward to any third
parties
whatsoever any information, directly or indirectly, by itself or
through
anyone on its behalf in all matters relating to the Products and/or
this
Agreement and all matters concerned which derive therefrom. The parties’
undertakings according to this section shall remain in force during
the
period of this agreement and at any time after its termination due
to
whatever reason. Notwithstanding, Supplier acknowledges that it is
aware
of the fact that Energtek Inc, a USA corporation, being the indirect
majority owner of Ukcyl, may file this agreement in accordance to
the
regulations for companies reporting under the Securities Exchange
Act of
1934. UKCyl will permit Dynatech to use the customer name as part
of its
marketing activity like using in client list
etc.
|
|
7.2
|
No
amendment, modification or waiver of this agreement or any provision
thereof shall be binding on either party unless such amendment,
modification or waiver is in writing and signed by the party sought
to be
bound thereby.
|
|
7.3
|
If
any provisions of this agreement or any application thereof shall
be or
become invalid or unenforceable, the remainder of this Agreement
and any
other application of such provision shall not be affected
thereby.
|
|
7.4
|
This
agreement shall be governed by, and construed and interpreted in
accordance with, the laws of England and the competent courts of
London
shall have sole jurisdiction over any dispute arising out of or in
connection with this agreement. Without derogating from this provision,
the parties agree to use their best efforts to settle all differences
by
negotiation and, if needed, mediation by agreed third
parties.
|
|
7.5
|
All
notices, demands or other communications shall be given in writing
by
telegram, facsimile or by certified/ registered mail or courier,
directed
to the following addresses :
|
|
7.6
|
Addresses
and bank details of the parties
|
Ukcyl
LTD
Adress:
Xxxxxxx, Xxxxxxxxxxx xxxxxx, 00000, Xxxxxxxx, Xxxxxxxxxxxxxxxxxx xxx.
33,
Code
EDRPOU 00000000
Account:
26008053913740
Zakarpatsky
RY Privatbank
DYNATECH
FURNACES (BOMBAY) PVT. LTD.
301-302
Jyoti Estate, 14 Anand nagar, S N Road, Andheri (E), Mumbai, 400069,
India
Transfer
instructions to Supplier:
To
American Express Bank N.Y. ( SWIFT CODE: XXXXXX00),
For
credit to account #235689 of Saraswat Cooperative Bank Ltd, Mumbai, India (
swift code- XXXXXXXXXXX),
For
final
credit to
Account:
# 1140 with Juhu Branch, Xxxxxx 000000, Xxxxx
IN
WITNESS WHEREOF, the parties have caused this agreement to be executed as of
the
date set forth above.
|
/s/
Manapadam S. Ganesh
|
/s/
Xx. Xxxxxxx Xxxxxxxx
|
|
|
Supplier
|
Ukcyl
|
Appendix
A
REDACTED
-
CONFIDENTIAL
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
Appendix
B
CORPORATE
GUARANTEE FORMAT FOR ADVANCES
CORPORATE
GUARANTEE BY THE DIRECTORS FOR ADVANCE PAYMENT
ON
INDIAN
RUPPES ONE HUNDRED STAMP PAPER
M/s
.
.
Dear
Sirs,
| 1. |
We
are aware that you have placed a Purchase Order (Ref.- ---------
dated
…..) with M/s Dynatech Furnaces (Bombay) Pvt. Ltd., Mumbai, having
it’s
Administrative office at 000/000 Xxxxx Xxxxxx, X.X.Xxxx, Xxxxx
Xxxxx
Xxxxxxx(X), Xxxxxx 000000, Xxxxx and Factory at W-33-D-MIDC,Additional
Ambernath, Xxxx Xxxxx 000 000, Xxxxxxxxxxx, Xxxxx (hereafter
referred to
as “Company”) for supply of CNG cylinder Heat Treatment Furnace Line
(hereafter referred to as
“Furnace”)
|
| 2. |
Against
the above purchase order, you have agreed to pay advance payment
to the
company, amounting to US$.85000(US$ eighty five thousand only)
upon
acceptance of the Purchase Order.
|
| 3. |
In
consideration of the said advance payment and at the request
of the
Company we, M/s. M.S.GANESH , S R Bhat being the directors of
the Company,
do hereby jointly and severally, guarantee you that the Company,
will duly
comply with the terms of the above accepted purchase order.
|
| 4. |
We
do hereby, jointly and severally agree and undertake that in
the event of
the order not being executed on the part of the company, upon
your
notifying such a situation, to any one or all of us, make payment
to
yourselves the advance amount so
collected.
|
| 5. |
In
order to give effect to this guarantee, you shall be entitled
to act as
if, we were
the principal debtors to you for all the payments guaranteed
by us as
aforesaid.
|
| 6. |
The
benefit of the guarantee shall inure to your successors and assigns
and
shall be irrevocable until the discharge by us by way of offering
the said
Furnace for inspection.
|
| 7. |
This
guarantee shall be binding upon us and our respective heirs,
legal
representatives, executors and
administrators.
|
| 8. |
This
guarantee shall not in anywise be prejudiced by your absorption
or by your
amalgamation with any company, corporation, or concern but shall
be
available for and by the absorbing or amalgamated company, corporation
or
concern. Nor shall this guarantee be in anywise prejudiced or
affected by
the nationalization or the taking over of the management of the
Company by
any other person or persons.
|
| 9. |
This
guarantee herein contained shall not be determined or affected
by the
death of any one of us but shall in all respects and for all
purposes be
binding and operative until annulled by the Furnace being offered
to you
for inspection by the Company.
|
| 10. |
This
guarantee, being a guarantee for advance, will lapse as soon
as the said
Furnace is shipped, as per the accepted purchase
order.
|
| 11. |
This
guarantee, being a guarantee for advance, will be returned in
original to
us upon shipping of the said equipment from our
facility.
|
Yours
faithfully,
| 1) |
M.
S. GANESH
|
| 2) |
S.
R. BHAT
|
(Directors
of the Company)
The
Common Seal is affixed as per Board Resolution dated
Place:
Mumbai, India
Date:
