EXHIBIT 10 (qq)
328
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THE TIREX CORPORATION
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RUBBER CRUMB PURCHASE OPTION AGREEMENT
Rubber Crumb Purchase Option Agreement, made this 19th day of August 1998,
between:
ENERCON America Distribution Limited
000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
(the "Operator")
and
The Tirex Corporation
000 Xx. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
(the "Manufacturer")
Whereas, the Manufacturer and the Operator are parties to certain
equipment lease and purchase agreements, of even date herewith (the "Equipment
Lease and Purchase Agreements"), between the Manufacturer and the Operator
respecting the sale by the Manufacturer and the Purchase by the Operator of the
"Purchased Equipment" and the operating lease, between the Manufacturer, as
lessor, and the Operator, as lessee, respecting the "Leased Equipment", as those
terms are defined in the said Equipment Lease and Purchase Agreements.
Whereas, in consideration for the premises and the mutual promises made
therein, the Operator has agreed, pursuant to the Equipment Lease and Purchase
Agreements, to enter into this Option Agreement with the Manufacturer pursuant
to which the Operator hereby grants to the Manufacturer the option to purchase
up to forty percent (40%) of the rubber crumb yielded by the disintegration of
scrap tires in the TCS-1 System and the TCTS-1 System which are the respective
subjects of the said Equipment Lease and Purchase Agreements (the "Subject
System").
Now, Therefore, it is agreed as follows:
1. Definitions
1.1 "Manufacturer" shall mean The Tirex Corporation and its successors and
assigns.
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1.2 "Operator" shall mean ENERCON America Distribution Limited and all
other corporations, partnerships, or other entities, now or in the future
controlled by, under common control with, or in control of, ENERCON America
Distribution Limited, 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 Agreements.
2. Grant of Option
The Operator hereby grants to the Manufacturer an option (the "Option") to
purchase up to forty percent (40%) of the rubber crumb yielded by the
disintegration of scrap tires in the Subject Systems (the "Rubber Crumb
Output").
3. Term of Option
The term of the Option shall be coextensive with the term of the operating
lease provided for in Section 4 of the respective Equipment Lease and Purchase
Agreements and shall commence as of the Acceptance Date.
4. Conditions of Option
The Manufacturer's rights to purchase the Rubber Crumb Output pursuant to
this Option shall be subject to fulfillment of the following condition:
(a) the Manufacturer shall furnish to the Operator, in writing, within
ninety days of the Acceptance Date and every six months thereafter,
the Manufacturer's anticipated purchase projections (the "Six-Month
Projected Purchase Order") specifying the grades, types, and
quantities of Rubber Crumb Output which the Manufacturer commits to
purchase within the six-month period following the date of such
Projected Purchase Order;
The price, terms, and conditions specified in the Projected Purchase Order
will be negotiated every six months for a period of six months.
5. Inspection of Books
Upon written request, the Manufacturer or its designated agent may examine
the books and records of the Operator only insofar as they relate to this Rubber
Crumb Purchase Option Agreement and are reasonably required to verify the volume
of rubber crumb produced by the operation of the Subject Systems. Such
examination shall take place at the offices of the Operator only during normal
business office operating hours.
6. Assignment
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6.1 This Option 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 obligations
hereunder unless expressly waived in writing by the Manufacturer.
6.2 This Option 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 Option Agreement shall bind and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
assigns, provided, however, that this Option 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 Option Agreement.
8.2 All the right, title, and interest of the Manufacturer under this
Option Agreement may be enforced by the Manufacturer, its successors, and
assigns. This Option 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
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
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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 Option. 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
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.
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In Witness Whereof, the parties hereto have caused this Option
Agreement to be executed the day and year first above written.
whatsoever.
ENERCON AMERICA DISTRIBUTION LIMITED
By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
THE TIREX CORPORATION
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
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