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EXHIBIT 10.92
BAILMENT AGREEMENT
THIS BAILMENT AGREEMENT IS MADE EFFECTIVE THIS 3RD DAY OF FEBRUARY, 1997, BY
AND BETWEEN WILSHIRE TECHNOLOGIES, INC. (HEREINAFTER REFERRED TO AS "BAILOR"),
ADVANCED BARRIER TECHNOLOGIES DE MEXICO SA DE CV (HEREINAFTER REFERRED TO AS
"BAILEE"), AND ADVANCED BARRIER TECHNOLOGIES, INC. (HEREINAFTER REFERRED TO AS
"ABT"), EXECUTED BY AND BETWEEN MR. JOHN VAN EGMOND IN REPRESENTATION OF THE
"BAILOR", AND MR. RALPH SIAS IN REPRESENTATION OF THE "BAILEE", AND IN
REPRESENTATION OF ABT, PURSUANT TO THE FOLLOWING RECITALS AND CLAUSES:
RECITALS
I. BAILOR 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 5441 Avenida Encinas, Suite A, Carlsbad,
California.
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
Avenida Ferocarril Km. 14.5, Bodega 9-10, Centro Industrial
Limon Los Pinos, Tijuana, Baja California, Mexico.
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b) That it is a company devoted to providing manufacturing
services, and that on April 11, 1996, its parent company
executed a MANUFACTURING AND SUPPLY AGREEMENT with BAILOR 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:
CLAUSES
FIRST.- PURPOSE OF THE AGREEMENT
BAILOR 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 MANUFACTURING AND SUPPLY AGREEMENT
executed by BAILEE's parent company and BAILOR on April 11, 1996, and the
SECOND ADDENDUM TO THE MANUFACTURING AND SUPPLY AGREEMENT dated February 3,
1997. Title and ownership of the Equipment shall at all times remain vested in
BAILOR.
SECOND.- DELIVERY OF EQUIPMENT
BAILOR 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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BAILOR will deliver the Equipment at Coastline de Mexico SA de
CV, C/O Miles & Joffroy, 2675 Customhouse Court, Suite A, San Diego,
California, 92173, United States of America and the BAILEE shall import the
Equipment into Mexico under the temporary importation regime under BAILEE's
manufacturing services. 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
Avenida Ferocarril Km. 14.5, Bodega 9-10, Centro Industrial Limon 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 BAILOR 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.
BAILOR 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 BAILOR.
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
BAILOR.
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, excluding wear and tear due
to normal operation.
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EIGHTH.- LOSS OF EQUIPMENT
BAILEE shall be liable towards BAILOR 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
BAILOR pursuant to the terms of this Agreement.
NINTH.- INSURANCE
BAILOR will contract with an authorized insurance company for an
amount not less than the replacement value, as indicated by BAILOR, covering
the Equipment that is the object of this Agreement, and will name BAILOR as the
beneficiary of such insurance.
TENTH.- RETURN OF EQUIPMENT
BAILEE shall cease using and immediately return the Equipment
to BAILOR when BAILOR 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, BAILOR has the right
to demand the return of the Equipment at any time, in which case this agreement
will terminate.
ELEVENTH.- DISCLAIMER OF LIABILITY
BAILOR 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 BAILOR harmless with respect
to any such responsibility, liability or commitment.
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TWELFTH.- INSPECTION
BAILOR 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 BAILOR 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, security measures,
maintenance and operation of the Equipment will be borne by BAILOR.
FIFTEENTH.- RECOVERY OF EQUIPMENT
BAILOR will have the right to recover the Equipment at any
time and BAILEE covenants to return it upon request by the BAILOR. All
expenses such as transportation will be the exclusive responsibility of BAILOR.
BAILEE will provide BAILOR 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 BAILOR.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this
Bailment Agreement to be executed by their duly authorized representatives.
BAILOR BAILEE/ABT
/s/ John Van Egmond /s/ Ralph Sias
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By: Wilshire Technologies, Inc. By: Advanced Barrier Technologies de
Mexico SA de CV
By: Advanced Barrier Technologies, Inc.
Name: John Van Egmond Name: Ralph Sias
WITNESS WITNESS
Wilshire Technologies, Inc. Advanced Barrier Technologies de
Mexico SA de CV
Advanced Barrier Technologies, Inc.
/s/ James W. Klingler /s/ James Mullin
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EXHIBIT A
EQUIPMENT
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