EXHIBIT 10.21
OEM STRATEGIC ALLIANCE AGREEMENT
BETWEEN
WHESSOE VAREC, INC.
AND
FCI ENVIRONMENTAL, INC.
TABLE OF CONTENTS
1. TERM OF AGREEMENT
2. PRICE
3. PAYMENT
4. FREIGHT POINT
5. DELIVERY AND TRANSPORTATION CHARGES
6. EXPORT REGULATIONS
7. EXCLUSIVITY AND MARKETS
8. RELEASES AND FORECASTS
9. ACCEPTANCE
10. FORCE MAJEURE
11. BRAND NAME
12. SALES AND MARKETING
13. SERVICE
14. MARKET COLLATERAL TRANSFER
15. APPLICATIONS SUPPORT
16. TECHNICAL/RESEARCH AND DEVELOPMENT
17. ENGINEERING DOCUMENTATION AND CHANGE CONTROL
18. QUALITY
19. PATENT PROTECTION/PROMOTION
20. XXX-XXXXXXXXXX
00. LIMITATION OF LIABILITY
22. WARRANTY
23. SPARE PARTS
24. TRAINING
25. INDEPENDENT CONTRACTORS
26. GOVERNING LAW
27. INSOLVENCY
28. CHANGE OF OWNERSHIP
29. ATTORNEY'S FEES
30. ASSIGNMENT
31. INSURANCE
32. DISPUTES
33. NOTICES
34. TERMINATION
35. ENTIRE AGREEMENT
EXHIBIT A - PRODUCTS AND SPECIFICATIONS
EXHIBIT B - PRICING
EXHIBIT C- FIELD SERVICE AND SPARES SUPPORT
EXHIBIT D- QUALITY
RECITAL
This AGREEMENT made this 11th July 1996 is by and between FCI Environmental,
Inc. (herein called "Seller"), having a principal place of business at, 0000
Xxxxx Xxxxx, Xxxxxxxx X, Xxx Xxxxx, Xxxxxx, 00000 , and Whessoe Varec Inc.
having a principal place of business at 00000 Xxxxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000, (hereinafter called "Buyer"). .
The Seller wishes to sell and the Buyer wishes to buy certain Products
identified herein and in consideration of the covenants and undertakings
hereinafter set forth, the Buyer and Seller agree to create an OEM Strategic
Alliance as follows:
Exhibits A, Products and Specifications, B, Pricing, C, Field Service and
Spares, and D, Quality, inclusive, attached hereto are made part of this
Agreement by reference.
Strategic Alliance is defined as a relationship based on commitment, trust,
shared information and resources that work to the mutual benefit of both
parties. The Buyer and the Seller shall use their reasonably best efforts to
promote the Products into the markets covered under this agreement and shall
support each other to the best of their capabilities in this alliance. Both
parties agree to conduct a program review every six months alternating between
each others facilities to assure maximum performance in this alliance.
1. TERM OF AGREEMENT
This Agreement shall be effective as of the June 30, 1996 and, except as
hereinafter otherwise expressly stated and unless sooner terminated as
provided herein, shall expire ten (10) years after this date (the Initial
Term), subject to renewal as provided herein. Buyer may request renewal of
this Agreement for a further term of twelve (12) months by notifying
Seller in writing, not less than sixty (60) days prior to the expiration of
the Initial Term hereof and upon Seller's consent, such renewal to be on
the same terms and conditions as applicable during the original term,
except that pricing may be renegotiated to the mutual satisfaction of both
parties.
2. PRICE
The price of each Product released by Buyer hereunder shall be in
accordance with Exhibits "B". Seller shall present a plan within six (6)
months of the date of this agreement to present a plan to obtain
productivity cost reduction including a minimum 5% per year price reduction
target over a three year period. Both parties agree to an annual price
review to assure price/market compatibility.
3. PAYMENT
Payment terms shall be as follows:
A. One hundred eighty (180) days after shipment on the initial minimum
order.
B. Ninety (90) days after shipment on the second minimum order.
C. Sixty (60) days after shipment of all subsequent orders unless
otherwise agreed upon by both parties on a project by project basis.
4. FREIGHT POINT
Unless otherwise expressly agreed, all deliveries shall be FOB Las Vegas,
NV. Title and risk of loss shall pass to Buyer upon shipment. Seller
agrees to cooperate with Buyer on any shipping damage incurred on product
during shipment.
5. DELIVERY AND FREIGHT CHARGES
A. All products released shall be delivered as specified in Buyer's
individual Releases.
B. Seller shall deliver all Products in packaging meeting the
international commercial standards for similar items. Buyer shall be
responsible for special crating, packing or handling charges required
by Buyer.
C. When instructed by the Buyer, Seller shall, at Buyer's expense, ship
all special requirements for Products via the most expeditious method,
consistent with the Products involved.
D. Unless otherwise agreed on an individual shipment basis, all freight
charges shall be prepaid and billed.
6. EXPORT REGULATIONS
Both parties agree to comply with all applicable laws and regulations with
regard to export of Products contained here within. Buyer and Seller each
warrant that they have knowledge of such laws and regulations and that they
shall not knowingly violate them. In addition, each party shall inform the
other upon discovery of any changes to the applicable export laws or
regulations.
7. EXCLUSIVITY AND MARKETS
Whereas the Buyer hereby agrees to exclusively market, promote and sell
Products identified herein on a world wide basis, the Seller hereby grants
the Buyer exclusive sales and marketing rights for the Products to any
facilities with above ground storage tanks (AST) including but not limited
to the oil, gas, storage, transportation, refinery, chemical,
petrochemical, power generation, water, waste water treatment, and
pharmaceutical industries world wide. It is understood that there are some
underground storage potentials that are addressable by the buyer which are
included within the scope of this agreement. The Seller shall inform Buyer
of any pending new partnerships/alliances that
could have an impact on current or potential business for the Buyer. If
the parties determine that such a new partnership/alliance would have a
material negative impact on the buyer's potential business, the Seller will
not enter into said partnership/alliance.
8. RELEASES AND FORECASTS
Upon execution of this Agreement, Buyer shall provide to Seller purchase
orders for products contained herein. An Initial Release identified in
Exhibit B effective June 30, 1996 which shall be contingent upon Buyer's
initial acceptance of Product as provided in Paragraph 9. The second
release identified in Exhibit B shall occur no later than September 30,
1996. It is acknowledged by both parties that the P.O. identified in
Exhibit B shall be issued by the Buyer on the basis of representation made
by the seller with regard to the technical capability and commercial
viability of the products identified herein. If prior to the first date of
payment referred to in the P.O. it becomes apparent to the buyer that
significant or material problems exist with either technical capability or
commercial viability of the Product(s), the Buyer shall have the option to
withhold payment until such problem(s) are resolved to the Buyer's
satisfaction. Subsequent releases shall be activated as follows:
A. On or before the 1st day of each calendar month following the date of
the second release, and the 1st of each calendar month thereafter,
Buyer shall deliver to Seller a Release specifying the quantity of
Products to be delivered during the period from the (30th) to the
(60th) day from the date of each such Release. The Seller shall
maintain a buffer stock of product equivalent to 30 days average usage
(past six months) to satisfy unplanned demand placed upon the Buyer.
The Buyer shall provide specific "ship to" addresses for each
individual order drop-shipped by the Seller.
B. Buyer shall, with each Release specified in Paragraph 8A above,
provide a forecast for delivery during the 90th through 180th days
following each such Release. Such forecast shall represent only a
forecast; that is, Buyer's best estimate of its needs during said 90th
through 180th day period, and shall not be binding upon Buyer.
C. Adjustment to Release Schedules
1. The delivery schedule for the units contained in the Initial
Release and second release are not subject to schedule
adjustment.
2. Units released subsequently to the Initial Release may be
adjusted as follows:
Seller agrees to use its reasonable efforts to accommodate
Buyer's adjustments. Both parties agree that all units ordered
for delivery may be canceled without penalty if such units are
scheduled for delivery more than thirty (30) days from date of
cancellation.
D. Shipping dates provided by Seller are approximate, within one (1)
week. If Seller fails to meet its committed to delivery schedules
less than eighty percent (80%) of the time measured over a six month
period , Buyer at his option, has the right to terminate this
Agreement and cancel outstanding orders at no charge. In addition, if
the Buyer does terminate the Agreement the Buyer may choose to continue
to purchase Product at the prices agreed to in this Agreement.
Seller shall inform the Buyer that a scheduled shipment will be delayed
as soon as Seller becomes aware of the delay.
Seller shall reconfirm shipping dates five (5) working days after receipt
of order.
If Seller cannot meet it's shipment commitment for any reason, Seller
must continue to meet all warranties in a timely manner.
9. ACCEPTANCE
Buyer may conduct, at its own expense, incoming inspection tests in
conformance with Exhibit "A" to confirm that Product conforms to the
applicable specifications. Rejection of Products, or claim for
replacement or shortages, must be made and notice thereof submitted in
writing via FAX to Seller at its principal place of business. Notice
of rejection or claim must be received by Seller no later than thirty
(30) days following date of receipt. Products shall be deemed accepted
if notice of rejection is not made as provided. Seller shall not be
liable for failure of timely receipt of Buyer's notice.
10. FORCE MAJEURE
Neither party shall be liable to the other or deemed to be in default
for any delay or failure in performance under this Agreement resulting
from Acts of God, civil or military authority, acts of the public
enemy, war, fires, explosions, earthquakes, floods, strikes, or any
other event or condition beyond the reasonable control of either party.
In the event Seller shall be unable to timely perform it's obligations
under this Agreement as a result of any such cause or condition beyond
the Seller's control Buyer, upon notice to Seller, may purchase units
elsewhere in substitution for the Product during the period of such delay.
Such quantities of reprocured Products shall not be counted as ordered and
accepted Products against any Release commitment made to Seller hereunder.
Notwithstanding the foregoing, however, should any such delay or failure
continue for a period of sixty (60) days, Buyer may cancel this Agreement
and/or any Releases hereunder. Seller shall notify Buyer in writing of the
existence of any such cause or condition within ten (10) days after the
beginning thereof.
11. BRAND NAME
Subsequent to the first order and for all following orders, the products
identified herein shall incorporate the Whessoe Varec Brand name and
there shall be no discussions with customers or other individuals or
firms to the contrary. The products shall have the identifying label
that they were manufactured exclusively for the Buyer by the Seller.
Patent identity shall be located on applicable labels and product
literature.
12. SALES AND MARKETING
Buyer and Seller shall work together to formulate sales and marketing
strategies to maximize results. Both parties will participate jointly in
all applicable trade shows and seminars mutually agreed upon. Seller
shall continue its regulatory lobbying efforts at a level equal to or
greater than that immediately prior to this agreement.
13. SERVICE
Buyer shall perform modem monitoring of designated installations as
required by the end user or applicable regulatory authority. Seller shall
provide full support to include technical training to meet governmental
agency requirements when and where applicable.
14. MARKETING COLLATERAL TRANSFER
Seller shall transfer all marketing collateral data and information to the
Buyer, including, but not limited to brochures, test data, certifications,
product specifications/drawings and photographs, customer databases,
pending order reports, open quotations, environmental agency contacts and
databases in both hard copy and electronic format upon execution of this
agreement. Upon termination, all marketing collateral data and information
shall be returned to Seller.
15. APPLICATIONS SUPPORT
Seller shall provide sufficient applications support including training,
sizing programs and any additional collateral to the Buyer to insure the
development and adequate support of the business. Furthermore, Seller
shall provide technical assistance throughout the duration of this
agreement.
16. TECHNICAL/RESEARCH AND DEVELOPMENT
Seller shall commit to ongoing product improvement and R&D efforts on
Buyers behalf for existing as well as future generation Sensing and
Detection Products in an attempt to ensure that the products supplied
under this agreement are best positioned in the marketplace with the best
price, performance and service characteristics. Further, Buyer and Seller
shall participate in bi-annual technology reviews to discuss and agree upon
strategies for Research and Development and new product development. Buyer
will undertake reasonable effort to keep the Seller informed of any
significant market changes that would impact the direction or level of
effort in Seller's Technical/Research and Development. Each of the parties
hereto shall be responsible for its costs incurred in complying with this
paragraph.
17. ENGINEERING DOCUMENTATION AND CHANGE CONTROL
A. Seller shall supply Buyer, concurrent with the issuance of Buyer's
Initial Release of Product, one set of reproducible documentation
depicting Product in sufficient detail to permit Buyer to develop
maintenance and repair procedures and to
understand Seller's spare parts concepts. Documentation shall be in a
form acceptable to the Buyer.
B. Seller agrees to provide to Buyer one reproducible copy of each
Preliminary Engineering Change Order (ECO) which affects the
configuration being supplied to the Buyer within ten (10) days after
ECO has been received by Seller's Configuration Control Board. The
Seller shall provide sufficient information to assist Buyer to verify
Seller's determination of the impact of preliminary ECO on Product
delivered to Buyer prior to the approval and release of each ECO.
ECO's categorized in accordance with Sellers Engineering change
control system to identify whether the ECO is:
(1). A Mandatory Field ECO requires action to install the change in
all Product previously delivered. Such changes shall be
installed by the Buyer at the Sellers expense in Product located
throughout the world. Seller shall supply, at no cost to the
Buyer, all parts, special tools, and instructions required to
reliably install the ECO into the applicable Product. Buyer
agrees to provide competent personnel to perform the actual
installation. The Seller has the option to install the ECO if
agreed to by the buyer. Should the Buyer, for any reason, not
permit the Seller to promptly install the ECO, the Seller shall
be relieved of any and all liability of any nature whatsoever
for the performance or use of the Product affected by the ECO.
The ECO modification(s) shall be warranted for one year from
time of installation.
(2). An Optional Field ECO may be installed by Buyer at Buyer's
option. Seller agrees to provide at no cost to Buyer all parts,
special tools and instructions required to install each ECO that
the Buyer elects to install during the warranty period applicable
to each Product. Seller further agrees to sell to Buyer, at
Seller's then current price, all parts, special tools and
instructions required for any ECO the Buyer elects to install
subsequent to the warranty period applicable to each Product.
Seller agrees to make delivery of all parts required by any ECO
the Buyer elects to install within thirty (3O) days after
receipt of notice of Buyer's election.
(3). A Discretionary ECO that may be installed by Buyer at Buyer's
option and expense. Such ECO's are considered to be of a minor
nature that are only installed if the Buyer's service represent-
ative is already on site, has time available, and has the
required material necessary to complete the task. Seller agrees
to provide copies of ECO's affecting equipment both in and out of
warranty for the duration of this Agreement. Parts, special tools
and instructions shall be offered at catalog prices and be
deliverable within seven (7) after receipt of Buyer's order.
(4). A Routine ECO which corrects existing documentation or indicates
a change to the Product which Seller will install prior to
delivery of Product to Buyer. All CEO's will be installed by
Seller at no charge to Buyer.
Such CEO's shall have no impact on the Buyer's Product
application as to form, fit or function.
C. Buyer agrees to maintain its repair and maintenance documentation for
Products on a concurrent basis with Seller's furnished CEO's.
D. Buyer may request Seller to change Product by submitting to Seller an
Engineering Change Request(ECR). Seller may agree but shall not be
obligated to incorporate any ECR subject to negotiation as to impact
on price and delivery.
E. In the event any ECO shall render Product incompatible with Buyer's
software or firmware used to operate Product, Seller agrees at Buyer's
option (1) to restore Product to pre ECO capability, or (2) adjust the
price of affected Product to compensate Buyer for the cost of
restoring compatibility by changing Buyer's software or firmware, or
(3) provide an alternate means of restoring compatibility.
F. Disputes with respect to ECO compatibility/effectiveness shall be
negotiated in good faith between the Parties hereto.
18. QUALITY
Products supplied by the Seller shall comply with Buyer's requirements and
standards of approval contained in Exhibit D.
A. Seller agrees to establishing an ISO9001 recognized quality system
with certification trough a duly recognized/RAB accredited agency
within the first two years of this agreement.
B. Seller agrees to provide any/all quality/reliability related data on
all product identified herein which may affect the continued
determination of product quality and reliability. This includes but
is not limited to production yield measures, failure analysis of both
production failures and field returned product, design reliability,
demonstrated reliability testing, burn-in testing, filed performance,
mean time between failure, mean time to repair, etc.
C. Upon Buyer's request, Seller agrees to provide failure analysis of any
field failures returned to Seller. This analysis to include root
cause of failure and subsequent corrective action, as applicable.
19. PATENT PROTECTION/PROMOTION
Seller shall undertake at its own expense and have full control over the
defense, settlement and negotiation of any suit or proceeding brought
against the Buyer insofar as such suit or proceeding is based upon a claim
that any Product made to Seller's design and furnished hereunder
constitutes an infringement of any patent of the United States or other
nations, on the condition that the Buyer promptly notified Seller in
writing of such suits or threats thereof and cooperates by giving Seller
any requested authorization, information and assistance for defense of
same.
If a permanent injunction shall prohibit use or sale of Product or any part
thereof, Seller shall, at its option and expense, either procure for the
Buyer the right to continue selling the Product or any part thereof,
replace and modify the same so that it becomes non-infringing, or take back
the Product refunding the purchase price thereof, less a reasonable amount
for use or damage.
20. NONDISCLOSURE
Except as required by law or to conform with law, (1) neither Buyer or
Sellers shall advertise, issue press releases, or otherwise disclose the
existence of this Agreement or any terms hereof or arrangements hereunder
to information with respect to any Release without the other party's prior
written consent, and (2) Seller shall not, without Buyer's prior written
consent, refer in any communication which is reasonably likely to become
public to the fact that the Seller is a Supplier of Products to Buyer. The
Buyer and the Seller agree that neither party shall disclose, duplicate,
copy or use for any purpose other than in the performance of this agreement
and shall treat as confidential and as proprietary to each other all
information which relates to the other party's research, development, trade
secrets or business affairs ( collectively, "Confidential Information"),
and each party agrees to protect the Confidential Information the same
degree of care it exercises to protect the security of its own Confidential
Information and to prevent unauthorized disclosure, use or publication
thereof. The obligation to treat information as confidential shall not
apply to information which is publicly available or is obtained rightfully
from third parties without a duty to keep confidential. Notwithstanding
the foregoing, either party may disclose confidential information where
required by law, the legal order of any court or governmental agency, or
the rules of any applicable securities exchange.
21. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, NEITHER BUYER NOR SELLER SHALL BE
LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OR LOSS OF PROFITS OR OTHER BENEFITS ARISING OUT OF THIS AGREEMENT
OR ANY BREACH THEREOF.
22. WARRANTY
Seller expressly warranties that Products shall be free from defects in
workmanship and material for a period of twelve (12) months from the date
of shipment by Buyer to the end user or twenty four months from the date of
shipment to Buyer, whichever is shorter.
Seller's sole and exclusive obligation under this warranty is limited
to repair or replacement, at Seller's option and expense of all
Products that are returned to Seller within the applicable warranty
period and determined by Seller to be defective.
Buyer is responsible for properly packaging Product to be returned at
Buyer's expense and shall ship Product prepaid at Buyer's expense.
Seller shall return Product to Buyer prepaid at Seller's expense. In
the event Seller's inspection discloses that returned
Product is not defective, Buyer shall reimburse Seller for shipment cost
to return Product to Buyer.
The warranty shall immediately be null and void if, the Product has been
altered or repaired other than with authorization from Seller, has been
subjected to misuse, abuse, negligence or accident, damaged by excessive
current, damaged in shipment, subject to improper environmental conditions,
or had its serial number or any other Product marking altered, defaced, or
removed.
This warranty shall remain in effect notwithstanding Buyer's shipment
to third parties, but warranty remedies defined herein are applicable
only to Buyer and are not transferable. Units may be shipped directly
to and from third (3rd) party site. Buyer acknowledges that in any
sale of Products to third (3rd) parties, the precise terms of this
warranty and all disclaimers and limitations set forth herein shall
control Seller's liabilities and Buyer shall indemnify Seller from any
warranties made by Buyer beyond those set forth herein.
THIS WARRANTY IS IN LIEU OF AND BUYER WAIVES ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PAR-
TICULAR USE OR PURPOSE OF SUITABILITY FOR A PARTICULAR OPERATING ENVIRON-
MENT. THE REMEDIES STATED IN THIS WARRANTY CLAUSE ARE EXCLUSIVE.
23. SPARE PARTS
A. Seller agrees to sell to Buyer spare parts and accessories for a
period of (10) years after the end of a product offering contained in
this Agreement.
B. Seller shall sell to Buyer at Seller's then current price less list
less such quantities of spare parts as may be released by Buyer.
Such spare parts shall be supplied on the terms and conditions of this
Agreement applicable prior to such expiration.
C. Seller shall furnish to Buyer a recommended spare parts list and
update such list from time-to-time as and when required.
D. Seller shall use its best efforts to ship, F.O.B. Las Vegas NV, parts
needed by Buyer in an emergency as a result of a Product failure
within twenty-four (24) hours of Buyer's telephone notification to
Seller and in no event later than forty-eight (48) hours after such
notification.
24. TRAINING
Seller shall provide sufficient training to Buyer's Applications and
Service personnel to ensure that the products are adequately promoted,
applied and serviced. Further, Seller shall participate in Buyer's sales
training seminars as are mutually agreed upon.
25. INDEPENDENT CONTRACTORS
It is understood and agreed that each party hereto is an independent
contractor engaged in the operation of its own respective business, and
neither party shall be considered to be the agent of the other for any
purpose whatsoever and nothing in this Agreement shall be construed to
establish a relationship of co-partnership or joint venture between the
Buyer and the Seller.
26. GOVERNING LAW
This Agreement shall be governed by, interpreted under, and construed
according to the laws of the State of Nevada.
27. INSOLVENCY
In the event that the Buyer or the Seller (1) is in default of any of its
covenants or the terms and conditions of this Agreement, (2) becomes
insolvent or bankrupt or admits in writing its inability to pay its
indebtedness, or (3) makes an assignment for the benefit of its creditors,
or a reorganization arrangement under bankruptcy laws, then the Seller or
the Buyer may terminate this agreement in writing, xxx for and recover all
debts then accrued, and pursue and exercise any other remedies allowed by
law or this Agreement. The party failing to prevail shall be liable for
all reasonable costs and expenses, including reasonable Attorney's fees,
incurred by and associated with exercising any remedies hereunder or in
enforcing any terms contained herein.
28. CHANGE OF OWNERSHIP
Should the Seller change its ownership so that there is more than a fifty
(50) percent change of ownership, Buyer shall maintain exclusive sales and
marketing rights to the Products for the duration of this agreement. This
agreement shall be enforceable throughout its duration even in the case of
the Buyers change of ownership. Should a new owner of either party decide
not to pursue the Products identified here in, manufacturing rights shall
be given to the other party, and all appropriate documentation, special
tools and fixtures, assemble instructions, etc. shall be transferred to
the other party at cost less reasonable depreciation and any committed
releases and product orders shall be fulfilled for a period of six months
from the time of change.
29. ATTORNEY'S FEES
In the event Attorney's fees or other costs are incurred to secure
performance of any of the obligations provided for in this Agreement, to
establish damages for the breach of this Agreement, or to obtain any
appropriate relief, whether by way of prosecution or defense, the
prevailing party shall be entitled to reasonable attorney's fees and other
costs incurred.
30. ASSIGNMENT
This Agreement shall not be assigned by either party without the prior
written consent of the other party.
31. DISPUTES
The parties hereto agree to perform under this agreement with full faith
and diligence. The Seller and the Buyer will use their best efforts to
resolve any and all disputes arising from this agreement. Should their
efforts fail, both parties agree to the use of an independent arbitration
Association sitting in Las Vegas, Nevada. Litigation shall be the last
resort as to resolution of disputes arising from this agreement.
32. NOTICES
All notices, acknowledgments and other reports shall be in writing to the
other party at the address appearing below:
Whessoe Varec, Inc. FCI Environmental, Inc.
00000 Xxxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxx X
Xxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx or Attention: Xxx Xxxxxxx or
his successor(s) his successor(s)
33. TERMINATION
This Agreement shall automatically terminate upon occurrence of the
following events:
A. If at any time either party files a petition for insolvency,
bankruptcy or is adjudicated bankrupt, or takes advantage of any
insolvency acts or assignment for the benefit of creditors, or
undergoes a substantial or significant change in ownership, the other
party shall have the right to terminate this Agreement upon ten (10)
days notice. At no time or for any reason may this Agreement be
considered an asset of the insolvent party.
B. Both parties have the right to terminate this Agreement upon ninety
(90) days advance notice in writing properly served in the event that
either party can not or does not fulfill any on its obligations under
this Agreement given a reasonable time for remedy.
34. ENTIRE AGREEMENT
Subject to Paragraph 8 above, this Agreement contains the entire
understanding of the parties hereto with respect to the subject matter
hereof, there being no contemporaneous understandings, agreements, or
representations, promises or inducements whatsoever, and supersedes all
prior agreements, promises, representations and warranties, written or
verbal, between Buyer and Seller. This
agreement may not be altered, changed or amended without prior written
consent of the parties hereto.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed as
of the date above first written by their duly authorized officers or
representatives.
FCI ENVIRONMENTAL, INC. WHESSOE VAREC, INC.
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
President & CEO President
July 31, 1996 November 7, 1996
