EXHIBIT 10.22
LEASE AND OPTION TO PURCHASE AGREEMENT
THIS AGREEMENT, (hereinafter referred to as "AGREEMENT") made and
entered into this ninth day of August, 2001, between ULTRASTRIP SYSTEMS, INC.
(hereinafter referred to as "COMPANY"), whose principal office is located at
0000 XX Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000 and TECOR-TECNOLOGIA ANTICORROSAO,
S.A., (hereinafter referred to as "LESSEE") whose principal office is located at
X.X. Xxx 000, Xxxxxxx, 0000-000, Xxxxxxx, Xxxxxxxx. The Company and the Lessee
are sometimes collectively referred to as the "PARTIES" and sometimes
individually referred to as a "PARTY."
R E C I T A L S:
A. Company desires to lease certain equipment and inventory to
Lessee, and Lessee desires to lease certain equipment and
inventory (hereinafter referred to as "LEASED PROPERTY") from
Company pursuant to the terms and conditions set forth herein.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the parties hereto agree as
follows:
1. LEASED PROPERTY. Company does hereby rent and demise unto Lessee the
following described movable property, together with all accessories:
(1) Two UltraStrip M2000 Robots with controls.
(2) Two UHP Pumps in containers, including spare parts.
(3) Two vacuum systems and one filtration system in container.
(4) Hoses and accessories.
(5) See attached equipment and specification sheets.
2. TERM. For a term not to exceed sixty (60) days, beginning on October 8, 2001
(hereinafter referred to as the "Effective Date"), and ending sixty (60) days
thereafter.
3. ON SITE PERSONNEL. Company agrees to provide on site personnel for assistance
and training on Leased Property during the sixty (60) day lease period. Lessee
agrees to operate the Leased Property in accordance with the instructions and
directions of Company's personnel. Lessee shall only be entitled to operate and
utilize the equipment in accordance with Company personnel's direct approval and
authorization, at times and days acceptable to Company's personnel, and in a
manner acceptable and suitable to Company's personnel. Company's personnel shall
be available seven (7) days a week, but no greater than fifty-six (56) hours per
week. For each hour performed beyond the fifty-six (56) hour per week
allocation, Lessee shall pay to the company an extra charge equivalent to $50.00
per hour for each individual working beyond the fifty-six (56) hour per week
allocation. The Company shall either xxxx these charges to the Lessee separately
or along with the monthly lease payment, in the
sole discretion of the Company. At no time shall Lessee operate or utilize the
equipment outside Company's personnel's presence. Lessee further agrees to
provide and make arrangements for one villa and one van for lodging and
transportation of Company personnel at no cost to the Company. In the event the
lodging and transportation arrangements are unsatisfactory in the view of
Company personnel, Company shall have the right to obtain suitable lodging and
transportation. Lessee shall bear the cost and expense of the replacement
lodging and transportation, however Lessee shall be limited to 1.000.000 PTE per
month for alternate lodging. Said lodging and transportation charges shall be
paid directly by the Lessee to the third party provider. If Lessee fails to make
timely payment to third party provider, Company shall have the right to make the
payment to maintain suitable lodging and transportation arrangements and add
these expenses to Lessee's monthly rent payment.
4. LEASE PRICE. The amount that Lessee shall pay to Company for the leasing of
the Leased Property shall be $100,000.00 USD per month. A mobilization charge of
$50,000 USD will be payable by Lessee with the first month's lease payment.
Equipment usage in excess of the fifty-six (56) hour week shall be charged to
the Lessee at a cost of $396.00 USD per hour for each hour over and above the
fifty-six (56) hour workweek, plus any additional taxes assessed ("HOURLY
OVERAGE CHARGES"). Idle or maintenance time does not count towards the fifty-six
(56) hour work week limit of hourly usage of the equipment and personnel. No
credits will be afforded to Lessee in the event the fifty-six (56) hours per
week of personnel and/or use of the Leased Property are not used in full. Hourly
usage shall be monitored and calculated daily in the following manner. Company's
representative shall complete a time log sheet keeping track of the time each
day Company's personnel are on site ready to assist Lessee operate the Leased
Property, the time each day work ceased, as well as the total number of hours
Company's personnel were on site along with equipment. At the end of each day,
Lessee's representative shall be obligated to review the time log sheet and
indicate Lessee's approval of the time entries and hourly calculations, by
signing in an appropriate location on the time log sheet as directed by
Company's personnel or representative.
a. The first month's minimum lease payment and the mobilization
charge shall be paid at the execution of this Agreement
($150,000.00 USD). Payment must be made at least sixty (60)
days prior to delivery of Leased Property.
b. All remaining lease payments shall be due net ten (10) days
from the date of invoice.
c. Hourly Overage Charges from the previous month will be due and
payable with the regular monthly lease payment for the next
month.
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5. PLACE OF PAYMENT: The lease due hereunder shall be paid to Company at its
address: 0000 XX Xxxxxx Xxxxxxx, Xxxxxx, XX 00000 XXX. The payment shall be via
(a) bank wire transfer to Company's account: Northern Trust, 0000 XX Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxx, XXX, checking account number 5410xxxxxx and bank routing
number 0000000000, contact person Xx. Xxxxx Xxxxxxx at telephone 000-000-0000
or; (b) such other financial instrument as may be acceptable to the Company, in
Company's sole discretion.
6. TAXES, DUTIES & FEES. Lessee is solely responsible and liable for all taxes,
duties, fees and the like imposed by the government of Portugal or any
governmental agency in Portugal with regard to the performance of this
Agreement.
7. MAINTENANCE OF LEASED PROPERTY AND RISK OF LOSS. The maintenance of the
Leased Property shall be at the expense of the Company. Upon delivery of the
Leased Property to the Lessee's agreed upon delivery destination, the risk of
loss of the Leased Property shall immediately pass to the Lessee. At that time,
the Lessee shall be solely responsible for any and all loss or damage related to
the Leased Property regardless of fault, negligence, or the intentional actions
of the Lessee, third parties, employees, or other persons, entities, or
governmental authority. To the extent, that the Leased Property is damaged or
destroyed, while in Lessee's possession or during the term of this Agreement,
Lessee shall be solely responsible for all costs of repair, including all parts,
labor, and other costs related thereto. The Lessee shall engage and use
experienced and qualified employees in operating the Leased Property herein
described, and shall direct, control and manage the use thereof as a prudent
administrator.
8. ENVIRONMENTAL/DISPOSAL. Lessee is solely and exclusively responsible for the
handling, disposal, discarding, and administration of all waste materials,
wastewater, sludge, hazardous substances, or other elements or byproducts
created by or used in connection with the Leased Property.
9. MINIMUM LIABILITY INSURANCE. Throughout the term of this Agreement, Lessee
shall obtain and maintain at all times liability and casualty insurance
("Minimum Liability Insurance") in such amounts as Company shall specify from
time to time, and shall furnish to Company within fifteen (15) days of the
effective date of this Agreement, a certificate of insurance which names the
Company as an additional insured, evidencing that such insurance is in effect,
and provides that it shall not be canceled, terminated or modified on less than
thirty (30) days prior written notice to Company. The Minimum Liability
Insurance established as of the effective date of this Agreement is FIVE MILLION
US DOLLARS, ($5,000,000.00). The Company shall however provide for, maintain and
pay all insurance policies relative to its own personnel.
10 TAGS AND PERMITS. The Lessee is to furnish all license tags and permits for
the Leased Property as required by the Company or any governmental authority or
agency.
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11. COMPANY'S RIGHT TO INSPECT. Lessee shall at all times permit Company, its
agents and representatives, to inspect the Leased Property, Lessee's facilities,
and records during regular business hours for the purposes of ascertaining the
status of the physical condition of the Leased Property. If at any time Company
reasonably believes Lessee is using the Leased Property illegally, without
requisite governmental approval, in violation of any Portuguese or other law or
regulation, in a manner which exposes persons to bodily injury, or causes damage
or threatens to cause damage to the Leased Property, Company shall have the
right to immediately cancel this Agreement without written notice and the Leased
Property shall return to the Company or Company personnel shall have the right
to act in accordance with terms described in the event of default. The Company
in accordance with the terms of this provision shall reasonably exercise all
actions, rights, and remedies.
12. NOTICE OF DEFAULT. Any party who fails to keep or perform any of its
material obligations hereunder shall be in default of this Agreement. Within
thirty (30) days of becoming aware of any event of default, the non-defaulting
party shall provide the defaulting party with notice of same, which notice shall
include a detailed description of the failure which constitutes said default and
a statement of what, if anything, can be done to cure said default (the "Notice
of Default"). Any action arising hereunder or related in any way hereto against
Company or Lessee shall be brought within one year after the occurrence giving
rise to the claim, or be barred forever. If Lessee shall be in default
hereunder, Company may, without notice to Lessee, seize, take possession,
remove, confiscate, and remove the Leased Property from its location. Company
shall not be responsible for any damages that occur to Lessee, Lessee's
property, or third parties as result of these actions.
13. INDEMNIFICATION. Lessee shall indemnify and save harmless Company and its
officers and shareholders from and against any loss, claim, or damage,
governmental action or inquiry, including all reasonable attorneys' fees whether
or not litigation is instituted and including all appellate processes, arising
out of this Agreement or resulting from Lessee's use or misuse of the Leased
Property. However, this clause shall only apply when a final and effective
judgment for the Company by any judicial or governmental entity occurs regarding
any matters relative to this agreement.
14. ASSIGNMENT. This Agreement may not be assigned by Lessee to a third party
without the express written consent of Company and approval of said third party
by Company, both of which may be withheld for any reason whatsoever.
15. USE OF TRADEMARKS. Lessee shall display each of the trademarks on the Leased
Property only on behalf of and for the sole benefit of Company, and in such
manner and on such terms as Company may require or allow in writing.
16. TRADE SECRETS. Any of Manufacturer's trade secrets that may from time to
time be made available or become known to Lessee are to be treated as
confidential, are to be used solely in connection with Lessee's use of the
Leased Property during the
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Lease Period, and are not to be disclosed to anyone other than Lessee's
employees who have a reasonable need for access thereto in connection with
Lessee's use of the Leased Property during the Lease Period. Lessee's
performance of its duties hereunder shall survive the termination of this
Agreement.
17. INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to constitute Company
and Lessee as partners or otherwise associated in or with the business of the
other. Lessee is and shall always remain an independent contractor and neither
party shall be liable for any debts, obligations, or liabilities of the other.
Neither party is authorized to incur debts or other obligations of any kind on
the part of or as agent for the other. It is expressly recognized that no
fiduciary relationship exists between the parties. Lessee is in no respect an
agent, employee or legal representative of Company and shall not hold itself out
as such for any purpose whatsoever. Lessee shall not sign Company's name or the
name of any director, officer, employee or other agent of Company to any
instrument of other document.
18. OPTION TO PURCHASE. Lessee may at its option, purchase Leased Property under
the following conditions:
Purchase price for Leased Property is undetermined and will be
established only after both parties agree in writing on a mutually
acceptable price. If the parties cannot agree on a mutually acceptable
price no later than December 15, 2001, this Option shall automatically
and irrevocably terminate. ONE HUNDRED PERCENT (100%) of received lease
payments will be applied to purchase price if purchase is completed
within the sixty (60) day lease term. Lessee shall formally exercise
this option by way of written notice to the Company clearly stating the
Lessee's decision to purchase the Leased Property for the agreed upon
price. This Option to Purchase is further conditioned upon, and is not
exercisable until the parties fully execute an Agreement to Purchase on
conditions and terms acceptable to the Company. This Option to Purchase
shall irrevocably terminate at the expiration of the Lease Period or
the termination of this Agreement whichever shall occur earlier.
19. SURRENDER OF LEASED PROPERTY. Upon termination of the lease period and if
Lessee does not exercise its purchase option and execute an Agreement acceptable
to the Company, Lessee shall promptly and peaceably surrender the Leased
Property to Company. The Leased Property shall be shipped back to the Company at
Lessee's sole cost and expense to the Company's principal office as designated
above, or other location reasonably designated by the Company. The Company shall
have the right to inspect the Leased Property for any damage. Within thirty (30)
days of receipt of the Leased Property, Company shall provide Lessee with an
itemized list of damage and
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costs of repairing or replacing those parts or accessories. Lessee shall be
solely responsible for costs of repair or replacement of those parts or
accessories. Lessee shall make payment to the Company within ten (10) days of
receipt of Company's notice of damage.
20. NOTICES. All notices, requests, consents, and other communications required
or permitted to be given under this Agreement will be in writing (including
telefax or telecopy) and shall be sent by certified mail, postage prepaid,
return receipt requested, or delivered by a recognized national overnight
courier service, addressed to the address shown at the beginning of this
Agreement, or to any other address or addresses as any party may designate from
time to time. Any notice shall be deemed delivered: (a) on the date upon which
the return receipt is signed or delivery is refused or the notice is designated
by the postal authority as not deliverable, as the case may be if mailed, (b) on
the date of the delivery of a recognized international courier service.
21. ARBITRATION, JURISDICTION, VENUE, PREVAILING PARTY FEES. In case of
litigation or dispute regarding the interpretation and enforcement of this
Agreement or the resolution of situations not provided for therein, the Parties
will endeavor to obtain an equitable and adequate solution by amicable
settlement.
a. Should any amicable settlement under the terms above, not be
reached within 30 (thirty) days as of the date on which either
Party notified the other in writing to start the negotiations,
either Party may, at any time, resort to Arbitration under the
terms hereunder.
b. The Arbitration shall be conducted by Arbitration Court, set
up under the terms of this Clause and in compliance with the
procedures of the ICC-International Chamber of Commerce
hereinafter shortly referred to as "Chamber of Commerce".
c. The Arbitration Court shall consist of 3 (three) Arbitrators,
appointed 1 (one) by each Party within 15 (fifteen) days as of
the end of the 30 (thirty) day period referred to in number 3
(three) here above, the third Arbitrator, who shall preside,
being co-opted by the two Arbitrators thus appointed; failing
an agreement over the co-option of the third Arbitrator, who
shall preside, being co-opted by the two Arbitrators thus
appointed; failing an agreement over the co-option of the
third arbitrator, the latter shall be appointed by the Chamber
of Commerce. Should either Party not appoint its own
Arbitrator within the 15 (fifteen) day period of time set
forth here above, such Arbitrator shall be appointed by the
other Party (or by the Arbitrator appointed by it) and the
Chamber of Commerce shall be informed accordingly.
d. The Arbitration Court shall sit in London, at the place chosen
by the President and the arbitration proceedings shall be
conducted in English.
e. The proceedings shall be conducted at the Arbitration Court in
strict compliance with the procedures adopted by the
"Commercial Arbitration Center" of the Chamber of Commerce.
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f. The Arbitration Court shall analyze the issues of law as any
Court having jurisdiction over such issues would normally do
and the arbitration decisions can not be appealed, except in
the case of fraud, gross error or conflict of interest on the
part of one or more arbitrators.
g. All costs related with the Arbitration Court, including the
Arbitrators' fees, shall be borne by the Party against which
the decision is rendered or, should the decision not be
rendered against just one Party, by both Parties hereto, in
the proportion stated in the Arbitration Decision.
22. COMPLIANCE WITH LAWS AND REGULATIONS. Lessee acknowledges that it is
responsible for complying with all governmental laws, ordinances, rules and
regulations of the Territory ("Laws") and Lessee's fulfillment of its
obligations under this Agreement, including but not limited to the payment of
any duties and taxes (excluding Company income taxes), or obtaining of any
governmental permits or approvals. Lessee shall cooperate fully with Company in
complying with any governmental agency order or rule, which may obligate Company
to remedy any problem with, or defect in, any leased Property.
23. SPECIFIC PERFORMANCE. Each of the parties acknowledges that damages at law
would be an inadequate remedy if this Agreement were not specifically enforced.
Therefore, in the event of a breach or threatened breach by any party of any
provision of this Agreement, the other party shall be entitled, in addition to
all other rights and remedies, to injunctions restraining such breach, without
being required to post any bond or other security, and/or to a decree of
specific performance of the provisions of this Agreement.
24. WAIVERS. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
will not affect the right of that party to require performance of that provision
or to exercise any right, power or remedy, and any waiver by any party of any
breach of any provision of this Agreement should not be construed as a waiver of
any continuing or succeeding breach of the provision, a waiver of the provision
itself, or a waiver of any right, power or remedy under this Agreement.
25. SURVIVAL. All covenants, agreements, representations and warranties made in
this Agreement or otherwise made in writing by any party pursuant to this
Agreement will survive the termination or execution and delivery of this
Agreement and the consummation of the transactions contemplated.
26. SEVERABILITY. If any provision of this Agreement is contrary to, prohibited
by or deemed invalid under applicable law or regulation, only that provision
will be inapplicable and deemed omitted to the extent it is contrary, prohibited
or invalid, but the remainder will not be invalidated and will be given full
force and effect so far as possible.
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27. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
28. BINDING EFFECT. All of the terms and provisions of this Agreement are
binding upon, inure to the benefit of, and are enforceable by the parties and
their respective legal representatives, successors and permitted assigns.
29. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement is sought and making specific reference to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this lease
agreement on the 9th day of August, 2001, at Setubal, Portugal in the presence
of the undersigned witnesses.
WITNESSES TECOR-TECNOLOGIA
ANTICORROSAO, S.A.
Sign: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxx xx Xxxx
---------------------- -------------------------
Xxxxxx Xxxxxx Xx Xxxx,
Managing Director
Print: Xxxxxx Xxxxx
-------------------
Sign: /s/ Xxxxxx Xxxxx
----------------------
Sign: /s/ X. X. Xxxxxxxx
------------------------
Print: Xxxxxxxxx X. Xxxxxxxx
----------------------------
WITNESSES ULTRASTRIP SYSTEMS, INC.
Sign: /s/ Xxxxxx Xxxx By: /s/ Xxxxxx XxXxxxx
------------------
Xxxxxx XxXxxxx,
Director of Sales
Print: Xxxxxx Xxxx
------------------
Sign: /s/ Xxxx Xxxxxxx
----------------------
Print: Xxxx Xxxxxxx
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