SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) AS OF JANUARY 16, 1997
MANSUR INDUSTRIES INC.
----------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA
--------------------------------------------
(STATE OR OTHER JURISDICTION OF INCORPORATION)
000-21325 65-0226813
--------------------- -------------------------------
(COMMISSION FILE NUMBER (IRS EMPLOYER IDENTIFICATION NO.)
MANSUR INDUSTRIES INC.
8425 S.W. 129TH TERRACE
MIAMI, FLORIDA 33156
------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (305) 232-6768
<PAGE>
ITEM 5. OTHER EVENTS
Mansur Industries Inc. announced that it has entered into an agreement
with The Valvoline Company and First Recovery, both of which are affiliates of
Ashland, Inc., under which First Recovery will serve as Mansur's exclusive sales
representative in a territory comprising 14 major metropolitan markets across
the United States. The marketing program with the Ashland units will commence
this month and will replace the limited original pilot program for the Houston
and Dallas areas.
Paul I. Mansur, Mansur's Chief Executive Officer, stated, "The Company
is extremely pleased with the appointment of Ashland's Valvoline Oil and First
Recovery units as the Company's sales representative. Mansur's
SystemOne/registered trademark/ breakthrough waste minimization technologies and
strong initial market acceptance coupled with the extensive Ashland
infrastructure and marketing resources should help facilitate an expedited
national deployment of the SystemOne/registered trademark/ product line."
Mansur's selection of the Ashland group was based on strong synergies
between the two companies. As Mansur explained, "The core market for the
SystemOne/registered trademark/ product line is the automotive market. Of
course, Valvoline Oil maintains a major market share in the automotive market
for its Valvoline branded products. First Recovery, Ashland's environmental
services division, is a leader in environmental services to the oil industry,
which includes parts washer services. The Ashland Chemical division is a
manufacturer of the mineral spirit solvents utilized by Mansur in the
SystemOne/registered trademark/ product line. We anticipate that the marketing
alliance will provide Ashland and Valvoline with a significant competitive
advantage in selling products and environmental services. We also hope that they
will be able to build on the success we have had in sales to such customers as
Greenwich Air Services, WMX Technologies, Caterpillar, Detroit Diesel, Cummins,
Peterbilt, Rinker and numerous automobile dealers."
Founded in 1990, Mansur designs, manufactures, sells and supports a
full range of self contained, recycling industrial parts washing products. The
Company is headquartered in Miami, Florida.
<PAGE>
ITEM 7. EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
10.1 Commission Sales Representative Agreement, dated as of January 16,
1997, among The Valvoline Company, EcoGard Inc., and Mansur
Industries Inc.1
- ------------
(1) Confidential treatment has been requested with respect to portions of the
Commission Sales Representative Agreement.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MANSUR INDUSTRIES INC.
Date: January 22, 1997 By: /S/ PAUL I. MANSUR
---------------------------------------
Paul I. Mansur, Chief Executive Officer
<PAGE>
INDEX TO EXHIBIT
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
- ------- ----------- -------------
10.1 Commission Sales Representative Agreement, dated as of January 16,
1997, among The Valvoline Company, EcoGard Inc., and Mansur Industries
Inc. (1)
COMMISSION SALES REPRESENTATIVE AGREEMENT
THIS AGREEMENT made and entered effective as of the 16th day
of January, 1997, notwithstanding the actual date of execution, by and between
THE VALVOLINE COMPANY, a division of Ashland Inc., a Kentucky corporation, with
offices located at 3499 Dabney Drive, Lexington, Kentucky 40509 and FIRST
RECOVERY, a division of ECOGARD, INC., having its principal placed of business
at 3499 Dabney Drive, Lexington, Kentucky 40509, (hereinafter "FIRST RECOVERY"),
a Delaware corporation and MANSUR INDUSTRIES INC., a Florida corporation, having
a mailing address of 8425 S.W. Terrace, Miami, Florida 33156 (hereinafter
"MANSUR").
W I T N E S S E T H:
WHEREAS, MANSUR is a developer and seller of various models of patented
recycling parts washer equipment marketed under the trademarks System One(R) as
set forth on as set forth on SCHEDULE A, attached hereto and incorporated herein
by reference (the "Equipment"); and
WHEREAS, MANSUR desires to secure the services of FIRST RECOVERY to
solicit orders for the purchase of the Equipment from customers located in the
Territory (as defined below) that utilize, or desire to utilize, parts washing
equipment; and
WHEREAS, FIRST RECOVERY is desirous of securing the right to solicit,
on behalf of MANSUR, orders for the purchase of the Equipment;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, covenants and warrants hereinafter contained, the
parties agree as follows:
1. EXCLUSIVE APPOINTMENT: (a) Subject to the terms and conditions
hereof, FIRST RECOVERY shall have the exclusive right to solicit orders for the
purchase of the Equipment in the territories listed on SCHEDULE B attached
hereto and incorporated herein by reference (the "Territory"). MANSUR shall
appoint no other person or entity as a sales agent or representative for the
Equipment in the Territory. FIRST RECOVERY shall use its best efforts to solicit
orders for the Equipment in the Territory and shall utilize such resources and
efforts as are reasonably necessary to accomplish the sales goals to be
established in accordance with the provisions hereof. Prior to the commencement
of FIRST RECOVERY's marketing efforts in a new geographical area of the
Territory, MANSUR shall, at its expense, train the designated FIRST RECOVERY
sales representatives on the sale and use of the Equipment. In connection with
such training, each party shall be solely responsible for the travel costs
incurred by its employees. MANSUR shall be responsible for the costs of all
training materials. Upon the commencement of FIRST RECOVERY's marketing efforts
in a new portion of the Territory, MANSUR shall immediately ship up to 100 units
of Equipment to each service center established pursuant to paragraph 12 for use
as demonstrator models. Such initial shipment of demonstrator Equipment shall
contain reasonable quantities of each model of Equipment identified on Exhibit
A. Demonstrator Equipment may be used for thirty (30) days free demonstrations
to solicit Equipment orders. If an order for the Equipment is not placed by the
customer after completion
<PAGE>
of the demonstration period, MANSUR shall be responsible for picking up the
demonstrator Equipment and transporting it to the service center (as described
in Paragraph 12 of this Agreement).
(b) Before sales efforts in any portion of the Territory are
commenced, MANSUR and FIRST RECOVERY shall mutually agree upon minimum sales
goals to be achieved during the ensuing 12-month period in such geographical
area of the Territory (or, for the first year hereunder, upon minimum aggregate
sales goals for the entire Territory), and thereafter, at least 120 days prior
to the anniversary of such commencement, MANSUR and FIRST RECOVERY shall agree
upon minimum sales levels to be achieved during the year commencing on such
anniversary. Territorial boundaries are subject to review with FIRST RECOVERY
and may be reduced or terminated if sales remain substantially below such
established minimum sales goals or if the Parties cannot agree to minimum
acceptable sales goals.
2. INDEPENDENT CONTRACTOR: FIRST RECOVERY shall be an independent
contractor for the performance of all services under this Agreement. MANSUR
shall have no control over FIRST RECOVERY's performance except as set forth
herein. Neither party shall act as agent or legal representative for the other
party for any purpose, except as set forth herein. Neither party shall have any
authority (nor shall it represent itself as having authority) to bind the other
party or to contract in the name of or to create a liability against the other
party. The appointment created by this Agreement shall be for the solicitation
of orders for the Equipment only and in no event shall MANSUR or FIRST RECOVERY
be deemed a partner or joint venturer with the other party.
3. ACCEPTANCE, REJECTION, AND CANCELLATION OF ORDERS: (a) Orders
solicited by FIRST RECOVERY for the purchase of the Equipment shall be subject
to (i i) acceptance and confirmation by MANSUR in accordance with MANSUR's
written policies, (ii ii) the terms and conditions set forth in this Agreement,
and (iii iii) such prices and other standard terms and conditions of quotation
or sale as may be specified by MANSUR. Such MANSUR policy and standard terms and
conditions of quotation or sale shall be provided in writing, in advance to
FIRST RECOVERY.
(b) MANSUR may, if acting in good faith and in accordance with
MANSUR's written policies developed by or on behalf of MANSUR, decline to accept
any order solicited by FIRST RECOVERY and discontinue sale of, or allocate, any
Equipment without incurring any liability to FIRST RECOVERY. MANSUR may, in
accordance with MANSUR's written policies, determine the basis for any
allocation, and may cancel all or part of any order, without liability to FIRST
RECOVERY, at any time after acceptance by MANSUR. If MANSUR rejects all or any
part of any order for reasons not in good faith or not in accordance with
MANSUR's written policies, including but not limited to, MANSUR's inability to
manufacture and ship the Equipment, such orders shall be credited toward First
Recovery's minimum sales goals as set forth in Paragraph 1(b) of this Agreement.
(c) FIRST RECOVERY shall adhere strictly to sale terms and conditions
specified by MANSUR and shall have no authority to alter same. FIRST RECOVERY
shall not obligate or
2
<PAGE>
commit MANSUR to the sale or delivery of the Equipment without MANSUR's prior
written authorization and direction.
4. COMMISSIONS, PURCHASES: Subject to Section 7(b) hereof, MANSUR
shall pay FIRST RECOVERY a sales commission in accordance with the commission
schedule set forth in SCHEDULE C.
(a) Sales of Equipment to Valvoline or First Recovery shall be for
Valvoline or First Recovery's own use and not for resale, except that purchased
Equipment may be used by either Valvoline or First Recovery in their equipment
loan programs, as those programs are established and modified from time to time.
Valvoline or First Recovery, as applicable, shall retain ownership of any
Equipment purchased or manage such Equipment in its equipment loan program, for
a minimum of five (5) years after the date of such purchase.
(b) Commissions on orders are considered earned when FIRST RECOVERY
has provided to MANSUR all paperwork and other documentation allowing MANSUR to
ship the Equipment and such Equipment has been shipped.
5. CREDIT: FIRST RECOVERY shall promptly report successful
solicitations for purchase of the Equipment to MANSUR. MANSUR shall be solely
responsible for (i) determining whether credit should be extended to a customer,
and (ii) delinquent accounts.
6. REMITTANCE BY FIRST RECOVERY: FIRST RECOVERY shall remit to MANSUR
promptly upon receipt all money, checks, and drafts received by FIRST RECOVERY
for MANSUR.
7. SALES RESTRICTIONS: FIRST RECOVERY and its affiliates, including,
without limitation, Valvoline and its subsidiaries, shall not market, promote
and/or sell within the Territory for a period of eighteen (18) months from the
effective date of termination of this Agreement any parts washer equipment that
uses mineral spirits as the washing solution and can distill the mineral spirits
in a self-contained unit other than the Equipment, provided that this Agreement
has been in place for at least the full initial term prior to termination and
the parties have fulfilled their obligations during that initial term.
8. FIRST RECOVERY'S EXPENSES: FIRST RECOVERY shall be solely
responsible for all its expenses incurred in the performance of its obligations
hereunder, including, without limitation, all business and/or traveling
expenses, including taxes that it incurs in soliciting purchases of the
Equipment. FIRST RECOVERY shall give full cooperation and support to MANSUR's
policies and marketing programs, and FIRST RECOVERY hereby agrees to assist
MANSUR, as practicable, with such incidental and further services as from time
to time it may be called upon to perform in connection with servicing of the
said accounts.
9. PROPERTY OF MANSUR: (a) Any property of MANSUR received by FIRST
RECOVERY, including but not limited to records or papers pertaining to MANSUR
business, shall be held for the account of MANSUR and upon the earlier request
by MANSUR or
3
<PAGE>
termination of this Agreement shall be returned, at FIRST RECOVERY's
expense, as in good condition as when received, ordinary wear and tear excepted.
(b) FIRST RECOVERY and its affiliates agree that they will not divulge
to any other person, firm, or corporation during the term of this Agreement, or
any extension thereof, or at any time thereafter, any trade secrets or customer
lists which MANSUR may impart to it or them and that upon the termination of
representation it and they will deliver up to MANSUR all samples, price lists
and all other property belonging to MANSUR or relating to its business.
10. TRADEMARKS: (a) No right or license to use any trademarks, trade
names, trade dress, designs and other designations of source or quality of
MANSUR or FIRST RECOVERY ("Trademarks") is granted pursuant to this Agreement,
provided, however, that FIRST RECOVERY is permitted pursuant to and consistent
with the provisions of this Agreement to (i) use MANSUR's Trademarks, in FIRST
RECOVERY's advertising, subject to the prior receipt of MANSUR's written
approval thereof, and (ii) solicit orders for the sale of the Equipment
bearing MANSUR's Trademarks.
(b) MANSUR shall have the right at any time during the term of this
Agreement, to change the Trademarks, labeling, or packaging of the Equipment for
which any orders are solicited by FIRST RECOVERY. In such event FIRST RECOVERY
shall change its advertising to conform with the changes made by MANSUR once
existing advertising supplies are depleted or unless MANSUR agrees to pay for
cost of such conversion.
11. ADVERTISING LITERATURE: All advertising and promotional materials
including, but not limited to, price lists, purchase orders, finance
applications and delivery receipts shall be supplied by MANSUR at its sole cost
and expense. FIRST RECOVERY may, subject to Section 10, utilize any advertising
or promotional literature developed by MANSUR and shall, at its cost and
expense, incorporate such material as may be appropriate into its own
advertising and promotional materials, subject to the prior written approval of
MANSUR; provided however that, FIRST RECOVERY shall use MANSUR's advertising
only as provided by MANSUR and shall not alter, change or interfere with such
advertising without the prior written consent of MANSUR. Subject to MANSUR's
prior written approval FIRST RECOVERY may develop its own advertising for
products. On termination of this Agreement, FIRST RECOVERY shall discontinue all
advertising, either provided by MANSUR or developed by FIRST RECOVERY, for the
Equipment.
12. SERVICE, WARRANTIES, NO CONSEQUENTIAL DAMAGES: MANSUR shall, at
its sole cost and expense, establish service centers and employ a sufficient
number of service technicians in each portion of the Territory, prior to FIRST
RECOVERY's commencement or marketing of the Equipment in such portion of the
Territory. Such service centers shall (i) perform all necessary and required
warranty repair; (ii) subject to availability, coordinate shipment of
demonstrator models of Equipment at the reasonable request of FIRST RECOVERY;
(iii) coordinate delivery of all Equipment sold by MANSUR; and (iv)
provide all necessary and required training to purchasers of the Equipment.
Delivery and installation of the Equipment shall at all times be managed by
MANSUR at its sole cost and expense. MANSUR warrants that the Equipment
solicited for sale by FIRST RECOVERY shall (i) conform to
4
<PAGE>
MANSUR's specifications and written literature, including, but not
limited to, the Manufacturer's Warranties attached hereto as Schedule D; and
(ii) comply with all applicable laws.
13. REPRESENTATIONS AND WARRANTIES: (a) MANSUR represents, warrants
and covenants to FIRST RECOVERY, effective as of the date of this Agreement and
again as of the date of each shipment of Equipment to
FIRST RECOVERY as follows:
(i) MANSUR owns a valid and current patent for the Equipment that,
to the best of its knowledge, does not infringe on the intellectual property
rights of any third party;
(ii) MANSUR believes that MANSUR will be entitled to seek
enforcement of its patent against infringers on that patent, including, without
limitation, enforcement against any third party manufacturing identical or
similar equipment;
(iii) MANSUR has the requisite knowledge, skills, equipment,
machinery and facilities to manufacture the Equipment on a basis sufficient to
fulfill its obligations hereunder;
(iv) To the best of MANSUR's knowledge: (1) the Equipment is
materially free from defects; (2) can be used in accordance with the
manufacturer's instructions without material risk of fire, ignition or
explosion; and (3) performs in all material respects in accordance with its
published specification standards as set forth in Exhibit D;
(v) Within ninety (90) days of the execution (not the effective
date) of this Agreement, MANSUR will apply for the approval of Underwriter's
Laboratories, Factory Mutual or other comparable organization for the design of
the Equipment, as appropriate; and
(vi) In the manufacturing and shipping the Equipment, MANSUR shall
comply in all material respects with all laws, ordinances, orders, rules and
regulations of the United States of America and of any state or political
subdivision thereof and of any other governmental unit or agency that may now or
hereafter have jurisdiction over MANSUR's operations.
(b) FIRST RECOVERY represents, warrants and covenants to MANSUR as
follows:
(i) it has all requisite power to conduct its business as now
conducted and to perform its obligations under this agreement;
(ii) execution and delivery hereof, and performance hereunder, will
not violate or create a default under any mortgage, indenture, note, agreement
or other instrument to which First Recovery is a party;
5
<PAGE>
(iii) it will use its best efforts to develop the market for the
Equipment, such efforts to be no less rigorous than those used by it in relation
to its other goods or services provided in the Territory;
(iv) it shall notify MANSUR promptly upon becoming aware of any
adverse information relating to the safety or effectiveness of the Equipment;
(v) it will not market or distribute the Equipment outside the
Territory; and
(vi) in performing its obligations hereunder, FIRST RECOVERY shall
comply in all material respects with all laws, ordinances, orders, rules,
regulations, and actions of the United States of America and of any state or
political subdivision thereof and of any other governmental unit or agency that
may now or hereafter be applicable to FIRST RECOVERY's obligations under this
Agreement.
14. INDEMNIFICATION: (a) MANSUR shall protect, indemnify, hold
harmless and defend FIRST RECOVERY, its parent company, subsidiaries, divisions,
and affiliated companies, and its and their officers, directors, employees,
workers, agent and servants from and against all losses, damages, demands,
claims, suits, and other liabilities, including attorney fees and other expenses
of litigation, because of bodily injury, including death at any time resulting
therefrom, or damages to all property, including loss of use thereof which
occur, either directly or indirectly in connection with either MANSUR's
performance of its obligations under this Agreement, or the manufacture and
design of the Equipment.
(b) FIRST RECOVERY shall protect, indemnify, hold harmless and defend
MANSUR, its officers, directors, employees, workers, agents and servants from
and against all losses, damages, demands, claims, suits and other liabilities,
including reasonable attorney fees and other expenses of litigation resulting
directly or indirectly from the gross negligence or willful misconduct of FIRST
RECOVERY or its failure to perform its obligations under this Agreement.
15. INSURANCE: Without limiting MANSUR's undertaking to protect,
indemnify, hold harmless and defend FIRST RECOVERY and other parties as provided
in Section 13, MANSUR at its own expense, shall procure and keep in force
insurance of a type and amount acceptable to FIRST RECOVERY with insurance
carriers acceptable to FIRST RECOVERY, including but not limited to the
following insurance coverage:
Product Liability $5,000,000 per occurrence
$5,000,000 aggregate
Such insurance shall specifically name FIRST RECOVERY as an additional insured
party and shall be primary to any and all other insurance of FIRST RECOVERY for
any injury, damage or liability arising out of or in any manner connected with
the performance of this Agreement and shall provide that all rights of
subrogation against FIRST RECOVERY shall be waived. The required insurance
coverage shall be maintained with insurance companies qualified to provide
coverage where business is conducted pursuant to this Agreement. MANSUR shall
provide, to the extent possible, FIRST RECOVERY with thirty (30) days prior
written notice of any change,
6
<PAGE>
modification or termination results in insurance coverage that is
reasonably unsatisfactory to FIRST RECOVERY, then FIRST RECOVERY may, at its
option, terminate this Agreement upon written notice to MANSUR, or, if
satisfactory insurance can be maintained by FIRST RECOVERY, FIRST RECOVERY may,
with MANSUR's prior written consent, obtain such insurance and be reimbursed
therefor by MANSUR. MANSUR's undertaking to protect, indemnify and hold harmless
as set forth in Section 14 shall not be negated or reduced by any insurance
carrier's denial of coverage. FIRST RECOVERY shall maintain its standard
liability and workers' compensation coverage.
16. NOTICES: Any notices or other communication to be served on or
sent to either party hereunder shall be deemed sufficient served or sent mailed
by registered mail, return receipt requested, postage prepaid, or if sent by
telex, to such party at its address as first set forth above. Mailed notice
shall be deemed to have been received by such party four days after deposit in
the United States mail, or, if sooner, upon actual receipt thereof. If telex
notice is given, notice shall be deemed received forty eight (48) hours after
the telex has been transmitted.
17. TERM: Unless earlier terminated as hereinafter provided, the term
of this Agreement shall commence on the effective date set forth above and shall
continue for a period of one (1) year thereafter. After expiration of the
initial one (1) year term, this Agreement shall automatically renew for
additional one (1) year periods unless either party has provided the other with
sixty (60) days prior written notice that this Agreement shall not so renew.
18. TERMINATION: (a) Either Party shall have the right to terminate
this Agreement at any time by giving thirty (30) days notice in writing to the
other party if such other party has materially breached this Agreement.
(b) This Agreement shall terminate automatically and without notice in
any of the following events (i) the insolvency or bankruptcy of either party
or (ii) the appointment of a trustee or receiver in bankruptcy.
(c) Either party may terminate this Agreement at any time, with or
without cause, by giving ninety (90) days prior written notice to the other
party.
(d) Any termination hereunder shall be without prejudice to the rights
and obligations of the parties hereto that have vested prior to the effective
date of termination. Notwithstanding the immediately foregoing, MANSUR shall be
liable for and shall pay any unpaid commission due for the months (or a prorated
portion of the monthly commission for a period less than a full calendar month)
prior to the effective date of the termination.
(e) This Agreement may be terminated by MANSUR for cause, as
hereinafter defined. As used herein, "cause" shall mean (i) the willful
failure by FIRST RECOVERY to perform its duties and obligations hereunder, or
its gross negligence in the performance of such duties and obligations; (ii)
the filing by or against FIRST RECOVERY of any petition seeking relief under the
Federal Bankruptcy Law or similar law; (iii) the conviction of a felony of
FIRST RECOVERY by a court of competent jurisdiction; (iv) any fraud or
embezzlement, or the misappropriation or conversion of MANSUR's property by
FIRST RECOVERY; or (v) failure to
7
<PAGE>
meet minimum sales goals as set forth in paragraph 1(c), provided that
this Agreement shall be terminated in part in only those portions of the
Territory where the minimum sales goals have not been met.
19. DISPUTE RESOLUTION: (a) If a dispute arises out of or relates to
this Agreement, or the performance or breach thereof, the parties shall attempt
in good faith to settle the dispute by mediation under the Commercial Mediation
Rules of the American Arbitration Association in the State of Florida, before
resorting to arbitration. The parties agree and acknowledge that (i)
statements of admission made during the course of the mediation conference shall
not be admissible in evidence, and (ii) the mediator and his/her notes or
files may not be subpoenaed, and such testimony and materials shall not be
admissible at trial. All statutes of limitation shall be tolled while the
procedures specified in this Paragraph 19(a) are pending. The parties will take
such action, if any, required to effectuate such tolling.
(b) Any remaining unsolved dispute or difference that may arise
between the parties hereto concerning the performance, interpretation,
application or termination of this Agreement, which is not amicably settled by
the parties, shall be submitted solely and exclusively to arbitration as
provided herein and, as to matters not covered herein, in accordance with the
Rules of the American Arbitration Association. The decision of the arbitrator
shall be according to the provisions of this Agreement, and according to the law
of the State of New York (without regard for such State's conflict-of-law
principles) in areas not covered by this Agreement. Such decision shall be final
and binding upon the parties and judgment upon the award may be entered in any
court having jurisdiction over the parties.
(c) It is further agreed by the parties that any arbitration
proceedings shall be held in New York City, New York, and that the arbitrator
shall not be empowered to award punitive damages to either party. The prevailing
party shall be entitled to recover all its costs and expenses of arbitration
including attorneys' fees.
(d) If, notwithstanding the foregoing, either party should attempt
either to resolve any dispute arising in connection with the Agreement in a
court of law or equity or to forestall, preempt, or prevent arbitration of any
such dispute by resort to the process of a court of law or equity and such
dispute is ultimately determined to be arbitrable by such court of law or
equity, the arbitrator shall include in the award an amount to be paid by the
party resisting arbitration to the other party, equal to the latter's cost, and
attorney's fees, incurred in connection with such arbitrability determination.
(e) All actions or suits of any nature in connection with this
arbitration clause, if any, shall be brought exclusively in the courts of New
York.
20. PRIOR AGREEMENT: Upon the effective date of this Agreement, the
Master Lease and Distribution Agreement dated August 1, 1996 shall be deemed
terminated in all respects by mutual agreement.
21. MISCELLANEOUS: (a) Any attempted assignment of all or any part
of this Agreement by MANSUR, whether voluntary or involuntary, shall be void
except with FIRST RECOVERY's prior written consent. FIRST
8
<PAGE>
RECOVERY may assign this Agreement to any parent or affiliated company.
(b) This Agreement constitutes the entire Agreement between MANSUR and
FIRST RECOVERY and, as of its Effective date, supersedes all prior agreements
and relationships between MANSUR and FIRST RECOVERY with respect to the subject
matter hereunder. MANSUR and FIRST RECOVERY hereby mutually release one another
from any claims which presently exist or hereafter may arise out of any such
prior agreements or relationships except that MANSUR reserves all claims for
amounts due and unpaid, if any, and FIRST RECOVERY reserves all claims for
commissions earned, if any. No change and/or addition to the provisions of this
Agreement may be valid unless in writing and signed by the party to be charged.
NOTWITHSTANDING ANY PROVISION SET FORTH IN LATER SALES ORDERS, INVOICES OR
PURCHASE ORDERS THE TERMS OF THIS AGREEMENT RATHER THAN THE TERMS OF THE SALES
ORDERS, INVOICES OR PURCHASE ORDERS SHALL PREVAIL. No waiver of any breach of
this Agreement may be construed as a waiver of any continuing or subsequent
breach of the same or any other provision.
(c) THIS AGREEMENT SHALL NOT BE BINDING UPON MANSUR UNTIL DULY
EXECUTED BY MANSUR AT ITS HOME OFFICE. NO SALE OF ANY PRODUCT PRIOR TO SUCH
EXECUTION SHALL BE CONSTRUED AS MAKING THIS AGREEMENT BINDING
ON MANSUR.
(d) This Agreement shall be governed by and construed according to the
laws of the State of New York.
(e) Any provision of this Agreement which is found to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, provided, however, that to the extent such
provision can be rewritten to comply with such prohibition or unenforceability
the provision shall be so rewritten.
(f) Any heading in this Agreement are for the convenience of reference
only.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and in the place noted hereinbelow, by their respective
authorized representatives.
MANSUR INDUSTRIES, INC. FIRST RECOVERY,
A DIVISION OF ECOGARD, INC.
By:_____________________ By:________________________
Title:__________________ Title:_____________________
Date:___________________ Date:______________________
THE VALVOLINE COMPANY,
A DIVISION OF ASHLAND INC.
By:________________________
Title:_____________________
Date:______________________
10
<PAGE>
SCHEDULE A
----------
(EQUIPMENT)
I. SERIES 500
----------
1. Model 500 Recycling Parts Washer
2. Model 570 Recycling Parts Washer
3. Model 550 Twin Sink Recycling Parts Washer
4. Model 555 Twin Sink Recycling Parts Washer
II. SERIES 300
----------
1. Recycling Mini Parts Washer
2. Recycling Brake Washer
3. Recycling Paint Gun Washer
11
<PAGE>
SCHEDULE B
----------
TERRITORY**
---------
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
(1)
**NEED TO SPECIFICALLY IDENTIFY BY COUNTIES
- -------------
(1) Confidential treatment has been requested for this portion of the Sales
Representative Agreement.
12
<PAGE>
SCHEDULE C
----------
(COMMISSIONS)
-----------
During the term of this Agreement, and in accordance with its provisions, MANSUR
shall pay FIRST RECOVERY a fixed commission in an amount equal to the percentage
of the then current MANSUR list purchase or list lease price indicated below
that corresponds to the volume of Equipment that has been either purchased or
leased by customers.
VOLUME OF UNITS LEASED OR PURCHASED FIXED COMMISSION PER UNIT OF EQUIPMENT
BY CUSTOMERS AS A RESULT OF FIRST
RECOVERY'S SALES EFFORTS
First 1,000 Units (2)
1,001 to 2,500 Units (2)
Over 2,500 Units (2)
The current list price on the Effective Date of this Agreement is as follows:
MODEL LIST PURCHASE PRICE LIST LEASE PRICE
----- ------------------- ----------------
Series 300 - All Models (2) (2)
Model 500 (2) (2)
Model 570 (2) (2)
Model 550/555 Twin (2) (2)
In addition to the fixed sales commission set forth above for purchases of
Equipment, FIRST RECOVERY shall receive a fixed sales commission in an amount
equal to (2) of all sales of service contracts for the Equipment that are made
by MANSUR through FIRST RECOVERY.
- -------------
(2) Confidential treatment has been requested for this portion of the Sales
Representative Agreement.
13
<PAGE>
SCHEDULE D
----------
(MANUFACTURER'S WARRANTIES)
-------------------------
See attached.
14
<PAGE>
SYSTEM ONE
MANUFACTURER'S WARRANTIES
1. PERFORMANCE. All SYSTEMONE/registered trademark/ Equipment ("Equipment") is
warranted by SYSTEMONE/registered trademark/ Technologies, a division of Mansur
Industries Inc. ("Manufacturer") to perform in accordance with the
Manufacturer's specifications and the Manufacturer's Operating Manual
("Warranty") for the full term of the Lease. If the Equipment cannot reasonably
be repaired within five (5) business days, the Manufacturer will replace it with
like Equipment at no additional charge. Manufacturer shall at its own expense
make any changes or additions to the Equipment needed to comply with any laws or
regulations. The Manufacturer shall provide Lessee with written operating
instructions and initial training on proper Equipment usage. Lessee shall use
the Equipment in accordance with the Manufacturer's Operating Manual at all
times.
3. ENVIRONMENTAL ASSURANCE. The Manufacturer warrants the Equipment does NOT
generate any hazardous waste provided (i) the Equipment is properly used in
accordance with the Manufacturer's instructions (ii) the Equipment is properly
used for its intended purpose and (iii) no hazardous materials or chemicals are
added to or used within the Equipment. The Manufacturer has implemented a formal
Environmental Assurance Program to test, evaluate and document the
classification of Equipment residue as NON hazardous. The Manufacturer shall
provide the NON hazardous laboratory test results or other supporting
documentation to the Lessee (excluding Lessees of the Equipment who already are
or become classified as CESQG) within thirty (30) days of delivery.
The Manufacturer's Warranties herein shall remain in full force and effect for
the full term of the Lease. If the Manufacturer fails to perform under the terms
of the Warranty, the Manufacturer agrees to assume all obligations and
liabilities under the Lease.
15
