EXHIBIT 10 (ww)
402
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THE TIREX CORPORATION
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PURCHASE RIGHTS AGREEMENT
Purchase Rights Agreement, made this 9th day of October 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 (the "Operating Lease"), respecting the
"Leased Equipment", as those terms are defined in the said Equipment Lease and
Purchase Agreements.
Whereas, Section 4 of each of the respective Equipment Lease and Purchase
Agreements contains the terms and provisions of the respective Operating Leases,
with Subparagraphs 4.2.2 (b) of each of such Agreements providing to the
Operator the sole and exclusive right to extend the terms of the Operating
Leases yearly, on a perpetual basis, at a reduced rental rate, or to terminate
the said Operating Leases upon 90 days written notice to the Manufacturer.
Whereas, the Operator wishes to have, and the Manufacturer has agreed to
grant to the Operator, the right to purchase the Leased Equipment in the event
that a voluntary or involuntary petition is filed by or against the Manufacturer
under Chapter 7 of the United States Bankruptcy laws having for its purpose and
adjudication of the Manufacturer a bankrupt and the liquidation of the
Manufacturer's assets pursuant thereto.
Now, Therefore, in consideration for the premises and the mutual promises
made herein and in the Equipment Lease and Purchase Agreements, it is agreed as
follows:
403
1. Definitions
1.1 "Manufacturer" shall mean The Tirex Corporation and its successors and
assigns.
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. Operator's Right to Purchase Leased Equipment
2.1 To the extent permitted under applicable bankruptcy laws and
regulations, the Manufacturer hereby grants to the Operator the right to
purchase the Leased Equipment in the event that a voluntary or involuntary
petition is filed by or against the Manufacturer under Chapter 7 of the United
States Bankruptcy laws having for its purpose the adjudication of the
Manufacturer as a bankrupt and the liquidation of the Manufacturer's assets
pursuant thereto, in which event:
(a) The Manufacturer shall, within five business days of such
occurrence, give written notice thereof to the Operator;
(b) The Operator shall, within five business days of receipt of the
above described notice, advise the Manufacturer whether or not it
wishes to purchase the Leased Equipment.
3. Purchase Price
The purchase price for the Leased Equipment shall be the greater of: (i)
seven hundred fifty thousand United States dollars (US $750,000) less $10,000
for each monthly rental payment (including $12,500 initial term payments and
$6,250 extended term payments) that Operator shall theretofore have paid under
the Operating Lease; or (ii) $50,000.
6. Assignment
6.1 This Purchase Rights 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 Purchase Rights Agreement may be transferred, assigned, pledged,
or hypothecated by the Manufacture as part of the sale of its business or
otherwise.
404
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 Purchase Rights 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 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 Agreement.
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
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.
405
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 Operator's rights to
purchase the Leased Equipment. 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.
In Witness Whereof, the parties hereto have caused this Purchase Rights
Agreement to be executed the day and year first above written.
ENERCON AMERICA DISTRIBUTION LIMITED
By /s/ Xxxxx X. Xxxxxx
` ---------------------------------
Xxxxx X. Xxxxxx, President
THE TIREX CORPORATION
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
406
