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EXHIBIT 10.84
BAILMENT AGREEMENT
BAILMENT AGREEMENT ENTERED INTO BY AND BETWEEN WILSHIRE TECHNOLOGIES, INC.
(HEREINAFTER REFERRED TO AS "XXXXXX"), COASTLINE DE MEXICO SA DE CV (HEREINAFTER
REFERRED TO AS "BAILEE"), AND ADVANCED BARRIER TECHNOLOGIES, INC. (HEREINAFTER
REFERRED TO AS "ABT"), EXECUTED BY AND BETWEEN XX. XXXXX X. XXXXXXXX IN
REPRESENTATION OF THE "XXXXXX", XX. XXXXX XXXXXXX IN REPRESENTATION OF THE
"BAILEE", AND XX. XXXXX XXXX IN REPRESENTATION OF ABT, PURSUANT TO THE FOLLOWING
RECITALS AND CLAUSES:
R E C I T A L S
X. XXXXXX states:
a) That it is a corporation organized and existing under the Laws
of the State of California, with its principal place of
business located at 0000 Xxxxxxx Xxxxxxx, Xxxxx X, Xxxxxxxx,
Xxxxxxxxxx.
b) That it is the owner of the machinery and equipment subject
matter of this Agreement.
c) That it is willing to grant in commodatum to BAILEE the
possession of the machinery, tools, equipment and components
listed in EXHIBIT "A" which is attached to this Agreement,
(HEREINAFTER REFERRED TO AS THE "EQUIPMENT").
II. BAILEE states:
a) That it is a company organized and existing under the laws of
Mexico, with its principal place of business located at
Xxxxxxx Xxxxxxxxxx Xx. 00.0, Xxxxxx 0-00, Xxxxxx Industrial
Xxxxx Los Pinos, Tijuana, Baja California, Mexico.
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b) That it is a company devoted to providing Maquiladora
services, and that on October 26, 1995, its parent company
executed a SHELTER AGREEMENT with Advanced Barrier
Technologies, Inc. for the manufacture of certain products in
Mexico.
c) That it wishes to have in commodatum the Equipment referred to
above in order to fulfill the purposes mentioned hereinafter.
IN CONSIDERATION OF THE FOREGOING,
THE PARTIES AGREE ON THE FOLLOWING:
C L A U S E S
FIRST.- PURPOSE OF THE AGREEMENT
XXXXXX gratuitously grants to BAILEE the use of the Equipment
referred to in EXHIBIT "A" of this Agreement, for the exclusive purpose of
complying with its obligations under the SHELTER AGREEMENT executed by BAILEE's
parent company and Advanced Barrier Technologies, Inc. on October 26, 1995.
Title and ownership of the Equipment shall at all times remain vested in XXXXXX.
SECOND.- DELIVERY OF EQUIPMENT
XXXXXX shall deliver the Equipment to BAILEE in commodatum, at
the times agreed to by the parties. BAILEE hereby expressly acknowledges receipt
of the Equipment listed in EXHIBIT "A". The parties may from time to time amend
the list attached as EXHIBIT "A" so that it may include Equipment which may be
delivered to BAILEE in the future by agreement of the parties. These will be
complete with all their parts, additions and accessories in operating condition.
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XXXXXX will deliver the Equipment at Coastline de Mexico SA de
CV, C/O Miles & Joffroy, 0000 Xxxxxxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx,
00000, Xxxxxx Xxxxxx of America and the BAILEE shall import the Equipment into
Mexico under the temporary importation regime under BAILEE's Maquiladora
Program. Any item added to the Equipment delivered to the BAILEE in the terms
and conditions herein established shall continue to be imported on a temporary
basis and must be used in the domicile located at Xxxxxxx Xxxxxxxxxx Xx. 00.0,
Xxxxxx 0-00, Xxxxxx Industrial Xxxxx Los Pinos, Tijuana, Baja California,
Mexico.
BAILEE shall comply with all legal provisions applicable to
the temporary importation of the Equipment and shall provide all the
administrative services necessary to carry out the importation of the Equipment
into Mexico. BAILEE shall appear as the importer of record of the Equipment in
all the paperwork and documents used for such importation into Mexico, however,
it is expressly agreed that XXXXXX is and shall continue to be the owner of the
Equipment, thus the commercial invoice to be utilized to import the Equipment
into Mexico shall have a provision stating the following:
"This commercial invoice is issued exclusively for customs purposes in
order to import into Mexico the goods covered by same and therefore does
not transfer the ownership of the goods. In addition, the issuer
reserves itself title over such goods."
BAILEE shall keep in the domicile designated in Recital II a)
herein the permits, licenses and official documentation pertaining to the
importation into Mexico of the Equipment.
XXXXXX shall assume the costs of all duties, fees, expenses
and customs brokers' fees, Mexican and American, incurred in importing,
exporting and transporting the Equipment in Mexico pursuant to the terms and
conditions set forth herein.
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THIRD.- MAINTENANCE EXPENSES
The necessary expenses for the use, maintenance, repair and
preservation of the Equipment hereby given in commodatum will be the exclusive
responsibility of ABT.
FOURTH.- LOCATION OF MACHINERY
BAILEE shall maintain the Equipment at its current domicile
and may not remove it from said location without the prior written consent of
XXXXXX.
FIFTH.- NO DISPOSITION OR ENCUMBRANCES
BAILEE shall not sell, assign its rights hereunder, or in any
manner encumber, pledge, or otherwise cause a lien on the Equipment. BAILEE
further agrees to protect the Equipment from any and all third party claims and
for such purposes agrees and undertakes to file this Agreement for registration
with the Public Registry of Property of Tijuana, Baja California, Mexico, within
the thirty (30) days following its date of execution.
SIXTH.- USE OF EQUIPMENT
BAILEE promises to use the Equipment only and exclusively for
the purposes for which it was built, and will gear its operations to the
capabilities thereof.
SEVENTH.- PRESERVATION OF EQUIPMENT
ABT covenants and agrees to diligently preserve and maintain
the Equipment in the state in which it is received.
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EIGHTH.- LOSS OF EQUIPMENT
BAILEE shall be liable towards XXXXXX for the total or partial
loss of the Equipment, as well as for the deterioration suffered thereby, except
for the deterioration deriving from its normal use, even when such is a result
of fortuitous cause or force majeure, until the Equipment is returned to XXXXXX
pursuant to the terms of this Agreement.
NINTH.- INSURANCE
BAILEE, at XXXXXX'x cost and expense, must contract with an
authorized company, insurance for an amount not less than the replacement value,
as indicated by XXXXXX, covering the Equipment that is the object of this
Agreement, and must name XXXXXX as the beneficiary of such insurance.
TENTH.- RETURN OF EQUIPMENT
BAILEE shall cease using and immediately return the Equipment
to XXXXXX when XXXXXX so requests it, since no specific duration for the
commodatum has been agreed upon and hereunder. Therefore, pursuant to article
2385 of the Civil Code for the State of Baja California, XXXXXX has the right to
demand the return of the Equipment at any time, in which case this agreement
will terminate.
ELEVENTH.- DISCLAIMER OF LIABILITY
XXXXXX does not assume any responsibility or commitment
towards BAILEE, or towards any third party, with respect to their personal
property or to their persons, resulting from the possession or use of the
Equipment or from the lack of skill in using them, nor for any other reason
whatsoever. BAILEE agrees to indemnify and hold XXXXXX harmless with respect to
any such responsibility, liability or commitment.
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TWELFTH.- INSPECTION
XXXXXX reserves unto itself the right to inspect the Equipment
at any time whatsoever, for the purpose of verifying the correct use and
operation thereof.
THIRTEENTH.- COMPLIANCE WITH LAWS
BAILEE covenants, at its cost, to comply with all laws,
regulations and other legal provisions applicable to the Equipment and to notify
XXXXXX immediately, in writing, of any claim, demand, litigation, or any other
lien, that might affect the Equipment.
FOURTEENTH.- EXPENSES
All expenses related to the use, operation, security measures,
maintenance and operation of the Equipment will be borne by ABT.
FIFTEENTH.- RECOVERY OF EQUIPMENT
XXXXXX will have the right to recover the Equipment at any
time and BAILEE covenants to return it upon request by the XXXXXX. All expenses
such as transportation will be the exclusive responsibility of XXXXXX. BAILEE
will provide XXXXXX full cooperation in dismantling, removing and exporting the
Equipment at any time before, during or after termination of this Agreement.
SIXTEENTH.- TERM
Unless earlier terminated pursuant to Clause Tenth hereof,
this Agreement will terminate immediately upon receipt by BAILEE of written
notice from XXXXXX.
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SEVENTEENTH.- ARBITRATION
Any and all controversies or disputes between the parties
arising under this Agreement shall be submitted to an arbitrator for final and
binding resolution in accordance with the International Arbitration Rules of the
American Arbitration Association. The site of the arbitration shall be at San
Diego, California and the law of the State of California shall be applied by the
arbitrators.
This agreement is executed in triplicate, in Carlsbad,
California, on September 6, 1996.
XXXXXX BAILEE
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxxx
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By: Wilshire Technologies, Inc. By: Coastline de Mexico SA de CV
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxx
ABT
/s/ Xxxxx Xxxx
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By: Advanced Barrier Technologies, Inc.
Name: Xxxxx Xxxx
WITNESS WITNESS
Wilshire Technologies, Inc. Coastline de Mexico SA de CV
/s/ [Signature Illegible]
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WITNESS
Advanced Barrier Technologies, Inc.
/s/ [Signature Illegible]
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