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Exhibit 10.05
GLASS FIBER REINFORCEMENT PRODUCTS
PURCHASE AGREEMENT
This Glass Fiber Reinforcement Products Purchase Agreement (this
"Agreement") made this 23rd day of December, 1994, by and between ▇▇▇▇▇-▇▇▇▇▇▇▇
FIBERGLAS CORPORATION, a Delaware corporation, with offices at Fiberglas Tower,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Seller") and OCTANS, INC. (TO BE RENAMED FLUID
CONTAINMENT, INC.), a Nevada corporation, with offices at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Buyer").
W I T N E S S E T H
WHEREAS, Seller manufactures, sells, and delivers products known as
glass fiber reinforcements (collectively the "Products") for use in the
manufacture of fiberglass reinforced plastic products, the Products and the
specifications for the Products (the "Product Specifications") being more fully
described in Exhibit A, attached hereto and made a part hereof, and is willing
to manufacture, sell and deliver the Products to Buyer; and,
WHEREAS, Buyer is a manufacturer of fiberglass reinforced plastic
products; and,
WHEREAS, Buyer desires to purchase and accept quantities of the
Products from Seller according to the terms and conditions set forth herein;
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NOW, THEREFORE, Seller and Buyer agree:
1. SALE AND PURCHASE OF PRODUCTS
1.1 QUANTITIES OF THE PRODUCTS FOR CONTRACT YEAR 1995 Subject to
the terms and conditions herein set forth, Seller agrees to manufacture, sell
and deliver, and Buyer agrees to purchase and accept during Contract Year 1995
("Contract Year" defined hereinafter), for internal use and not for resale, (a)
100% of Buyer's requirements for the Products during the period commencing
January 1, 1995 and ending June 30, 1997 and (b) 80% of Buyer's requirements
for the Products during the period commencing July 1, 1997 and ending December
31, 1999 (provided that, at Seller's election upon at least 30 days' notice to
Buyer, the foregoing percentage shall be 100% if and for so long as Buyer has
failed to pay two or more installments of interest in cash when due under that
certain Junior Subordinated Promissory Note dated as of the date hereof, issued
to Seller); provided, however, notwithstanding Buyer's requirements, Seller
shall not be required to manufacture, sell and deliver to Buyer, during
Contract Year 1995, a quantity of the Products, in the aggregate, greater than
the quantity of the Products delivered to and used by Seller's underground tank
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manufacturing division during calendar year 1994, plus four percent (4%) of the
quantity delivered and used during calendar year 1994, without Seller's
consent. As soon as practicable after December 31, 1994, Seller shall advise
Buyer of the quantity of the Products delivered to and used by Seller's
underground tank manufacturing division during calendar year 1994.
1.2 METHOD OF DETAINING THE QUANTITIES OF THE PRODUCTS FOR
SUBSEQUENT CONTRACT YEARS On or before October 1, 1995, and each succeeding
October 1 during the remaining term of this Agreement, Buyer shall deliver to
Seller its estimate of its requirements, for internal use and not for resale,
for the Products, by type, for the next succeeding Contract Year. On or before
November 1, 1995, and each succeeding November 1 during the remaining term of
this Agreement, Seller shall advise Buyer of the portion of Buyer's estimated
requirements for the Products, by type, which Seller is willing to manufacture,
sell and deliver during the next succeeding Contract Year. Buyer acknowledges
and understands Seller may not be willing to manufacture, sell and deliver,
during any Contract Year during the term of this Agreement, all of Buyer's
estimated
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requirements for the Products during a Contract Year; provided, however, Buyer
agrees that it shall purchase and accept from Seller at least the quantities of
the Products which Seller is willing to manufacture, sell and deliver during
each Contract Year of this Agreement; provided, further however,
notwithstanding the preceding, in no event shall Buyer be required to purchase
and accept from Seller any quantities of the Products during any Contract Year
greater than its requirements for the Products for the affected Contract Year.
1.3 QUANTITIES OF THE PRODUCTS REQUIRED BY BUYER GREATER THAN THE
QUANTITIES SELLER IS WILLING TO DELIVER If and to the extent Buyer shall have
requirements for the Products during any Contract Year which is greater than
the quantities of the Products which Seller is willing to manufacture, sell and
deliver to Buyer during the affected Contract Year, Buyer may purchase such
additional requirements for the Products from other suppliers.
1.4 QUANTITIES OF FIBERGLAS(R) WOVEN ROVING Seller has ceased
manufacturing Fiberglas Woven Roving and is transferring and shipping its
equipment for such manufacture to its joint venture, Knytex Company L.L.C.
("Knytex"). Seller has
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reserved, in inventory exclusively for sale to Buyer hereunder, (a) 16,000
pounds of Fiberglas Woven Roving in addition to (b) Seller's January 1995
forecasted requirements of Fiberglas Woven Roving for its OC Tanks Division.
Seller will use its best efforts to transfer its U.L. listing for Fiberglas
Woven Roving to Knytex, and to assist Buyer in obtaining such U.L. listing for
its products. Seller also agrees that it will nevertheless continue to supply,
or cause Knytex to supply, the amount of Fiberglas Woven Roving required to be
supplied to Buyer hereunder at the price and subject to the other terms and
conditions of this Agreement; and if Knytex agrees to do so pursuant to a
written agreement satisfactory to Buyer in its reasonable judgment, Fiberglas
Woven Roving shall thereupon be deleted as a Product from this Agreement.
2. TERM CONTRACT YEAR
2.1 ORIGINAL TERM This Agreement shall be effective as of January
1, 1995 and, unless earlier terminated as provided herein, shall continue in
full force and effect through and including December 31, 1999 (the "Original
Term").
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2.2 CONTRACT YEAR For purposes of this Agreement, a "Contract
Year" shall commence on January 1, 1995 and end on December 31, 1995 and shall
include each succeeding 12 month period thereafter during the term of this
Agreement. A partial Contract Year shall contain less than 12 months.
3. ESTIMATES; RELEASES
3.1 CONTRACT YEAR ESTIMATES OF BUYER'S REQUIREMENTS FOR THE
PRODUCTS For planning purposes and not as a requirement to purchase, on or
before December 1 of each Contract Year during the term of this Agreement,
Buyer shall provide Seller with estimates of Buyer's requirements for the
Products, by type, by month, for the next succeeding Contract Year. As soon as
practicable after the effective date of this Agreement, Buyer shall deliver an
estimate of its requirements for the Products, by type, by month, for Contract
Year 1995. Notwithstanding the preceding, the aggregate quantity of the
Products set forth on the Contract Year estimates of Buyer's requirement for
the Products for the affected Contract Year shall not exceed the maximum
quantities of the Products which Seller has committed
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to manufacture, sell and deliver to Buyer during the affected Contract Year
pursuant to paragraph 1 of this Agreement.
3.2 QUARTERLY ESTIMATES OF BUYER'S REQUIREMENTS FOR THE PRODUCTS
In addition to Contract Year estimates delivered pursuant to paragraph 3.1,
Buyer shall also provide to Seller quarterly estimates of Buyer's requirements
for the Products, by type, by month. The quarterly estimates shall be delivered
to Seller at least 30 days prior to the first day of the affected calendar
quarter. As soon as practicable after full execution of this Agreement, Buyer
shall deliver its quarterly estimate of its requirements for the Products for
the calendar quarter commencing January 1, 1995. In each quarterly estimate of
Buyer's requirements for the Products, by type, Buyer may vary its requirements
for any calendar month in the calendar quarter by not more than plus or minus
20% from the quantities of the Products set forth in the Contract Year
estimates for the Contract Year delivered pursuant to paragraph 3.1, hereof.
3.3 ORDERS FOR THE PRODUCTS Orders for the Products shall be made,
at Buyer's discretion, by written or oral releases issued to Seller. The
releases shall be submitted by authorized personnel of Buyer at least 30 days
prior to the
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delivery date for the quantity ordered and shall set forth the following: a
statement identifying the release with this Agreement; the number by which the
release shall be identified; the quantity of the Products, by type, to be
delivered; the date of delivery; the place of delivery; and, invoicing
instructions. There shall be no limitation on the number of releases issued
hereunder. In case of a conflict between any of the terms of any release of
Buyer or any acknowledgement by Seller of the release and any of the terms set
forth in this Agreement, the terms of this Agreement shall control. No
additional terms or conditions of sale other than those contained in this
Agreement shall be effective unless approved in writing by an authorized
officer of Seller and Buyer.
4. PRICE FOR THE PRODUCTS
The price for the Products, firm for each Contract Year, in full
truckload quantities, to Buyer's manufacturing facilities in the continental
United States shall be Seller's published list price for the Products in effect
as of January 1 of each Contract Year, unless Seller otherwise agrees. The
parties have agreed the price for the Products, firm for
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Contract Year 1995, is set forth on Exhibit B, attached hereto and made a part
hereof. On or before December 1, 1995, Seller shall advise Buyer of the price
for the Products for Contract Year 1996. On or before each succeeding December
1 during the term of this Agreement, Seller shall advise Buyer of the price for
the Products for the next succeeding Contract Year.
In all events, the Products shall be shipped, at Seller's expense, to
Buyer's manufacturing facilities in the continental United States via Seller's
routing. Additional costs for transportation incurred at the request of Buyer
shall be for Buyer's account.
The price and terms and conditions of sale for the Products in less
than full truckload quantities or to Buyer's manufacturing facilities other
than in the continental United States shall be negotiated by the parties prior
to acceptance of the order by Seller.
5. DELIVERY OBLIGATIONS
Buyer shall use its best efforts to take delivery of the Products each
Contract Year in the quantities set forth in the
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quarterly estimates. In no event shall Seller be required to deliver in any
calendar month during the term hereof, a quantity of the Products greater than
20% greater than the quantity of the Products set forth in Buyer's Contract
Year estimate for the affected calendar month without Seller's consent. In no
event shall Seller be required to deliver a quantity of the Products during any
Contract Year greater than the quantity of the Products committed by Seller
pursuant to paragraph 1 hereof.
6. CHANGED, MODIFIED, SUBSTITUTED PRODUCTS
6.1 CHANGE OR MODIFICATION OF BUYER'S PRODUCT If, during the term
of this Agreement, Buyer shall make changes to or modifies the design of its
fiberglass reinforced plastic products such that additional or different glass
fiber reinforcements may be required, Buyer shall notify Seller of the
specifications for the additional or different glass fiber reinforcements Buyer
requires. Seller shall have a period of 60 days from the date of receipt of
Buyer's notice of its changes in requirement for glass fiber reinforcements to
notify Buyer whether Seller desires to manufacture, deliver and sell
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to Buyer the additional or different glass fiber reinforcements. If Seller does
not desire to sell the additional or different glass fiber reinforcements,
Buyer shall be released from its requirements to purchase its requirements for
the additional or different glass fiber reinforcements from Seller but this
Agreement shall otherwise be unaffected as to Buyer's requirements for the
remaining Products hereunder.
If Seller notifies Buyer it is willing to sell the additional or
different glass fiber reinforcements, Seller shall have a reasonable period,
not to exceed three months, to qualify the additional or different glass fiber
reinforcements in Buyer's manufacturing process. When qualified, the additional
or different glass fiber reinforcements shall become Products hereunder, the
specification for the additional or different glass fiber reinforcement shall
be added to the Product Specifications and the price for the additional or
different glass fiber reinforcements shall be determined pursuant to the
provisions of paragraph 4, hereof.
6.2 MODIFICATION OF SELLER'S PRODUCTS Buyer understands and
acknowledges that Seller, from time to time, to improve the efficiency in the
manufacture or use of the Products, makes
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changes to, modifies, makes improvements to the Products, or substitutes newly
designed products for the Products. If during the term of this Agreement Seller
shall make changes, modifications or improvements to the Products or
substitutes newly designed products for any of the Products, Seller shall
advise Buyer that the change, improvement, modification or substitution is
contemplated. As soon as practicable thereafter, Seller shall provide Buyer,
free of charge, samples of the proposed changed, modified, improved or
substitute product in sufficient quantity to enable Buyer to test and qualify
such product in Buyer's manufacturing process. If Seller commences commercial
manufacture of the changed, modified, improved or substitute product, the
product shall become a Product hereunder. Seller warrants that subsequent
shipments of the new Product shall conform in all material respects to the
samples provided to Buyer hereunder.
7. TAXES, EXCISES AND OTHER CHARGES
Unless otherwise provided by law, in addition to the price, Buyer
shall pay to Seller any and all taxes, excises or other charges (other than
taxes on or measured by Seller's net
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income) Seller may be required to pay to or collect for any government, whether
local, state, or federal, and which are based upon or measured by the
production, sale, transportation, delivery or use of the Products sold and
delivered hereunder.
8. TERMS OF PAYMENT
Seller shall invoice Buyer for each delivery of the Products
hereunder. Unless Seller otherwise agrees, payment is of each invoice shall be
made by Buyer in accordance with Seller's published payment terms in effect on
the date of shipment of the Products. Seller's current payment terms are net,
30 days, measured from the date of Seller's invoice. Seller permits a one
percent (1%) discount on the value of the Products on the invoice (total
invoice less cost of transportation of the Products) if the invoice is paid
within 15 days of the date of the invoice.
9. TITLE AND RISK OF LOSS
The Products sold pursuant to this Agreement shall be delivered to
Buyer: for Products manufactured by Seller in the United States, F.O.B.
Seller's manufacturing facilities; and,
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for Products manufactured by Seller in countries other than the United States,
F.O.B. Buyer's manufacturing facilities.
10. SELLER'S WARRANTY
Seller warrants the Products when delivered to Buyer shall conform to
the Product Specifications and shall be free and clear of all liens and
encumbrances. Seller further warrants that it shall have complied with all
applicable laws, regulations, ordinances and codes and Seller shall have
obtained those permits, licenses, approvals and certificates, reasonably
necessary for the manufacture, packaging, storing and handling the Products at
Seller's manufacturing facilities.
SELLER MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCT
DELIVERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE, EVEN
IF DISCLOSED TO SELLER.
11. LIMITATION OF LIABILITY
11.1 WARRANTY Buyer's sole and exclusive remedy for Products proven
to be other than as warranted shall be the
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replacement of the defective Products, without charge, F.O.B. Buyer's
manufacturing facility, but only within the continental United States. To
effect this sole and exclusive remedy, Buyer must make its claim for Products
proven to be other than as warranted within six months of the date of shipment
of the Products.
11.2 ALL CLAIMS Seller's sole liability for any and all loss or
damage to Buyer resulting from any cause whatsoever, including Seller's
negligence, or damaged or defective goods, irrespective of whether such defects
are discoverable or latent, warranty, express or implied, tort, strict
liability, breach of contract, if Seller's warranty shall fail of its essential
purpose, or any other claim, damage, expense or cost, shall in no event exceed
the purchase price of the particular Products with respect to which losses or
damages are claimed.
THE FOREGOING IS THE ENTIRE OBLIGATION OF SELLER. IN NO EVENT,
INCLUDING A CLAIM OF NEGLIGENCE, OR SHOULD SELLER'S WARRANTY FAIL OF ITS
ESSENTIAL PURPOSE, SHALL SELLER BE LIABLE FOR BUYER OR BUYER'S CUSTOMERS'
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING.
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No statement or recommendation made or assistance given by Seller, or
its representatives, either sell or in its literature, to Buyer, its
representatives or its customers in connection with the use or installation, by
Buyer or its customers, of any Products sold hereunder, shall constitute a
waiver by Seller of any provision hereof or affect Seller's liability as herein
defined.
12. PATENTS AND TRADEMARKS
Anything in paragraph 10 and 11 hereof to the contrary
notwithstanding, Seller shall indemnify, defend and save Buyer harmless from
all costs, including reasonable attorneys' fees, damages, liabilities, and
expenses, arising out of any claim, action or suit brought against Buyer based
upon an allegation the Products, as delivered to Buyer, infringe any patents,
trademarks or other third party property rights. This indemnification does not
extend to any use by Buyer of the Products other than in their original form
subsequent to delivery.
As soon as practicable after receipt, Buyer shall forward any claim,
action or suit to Seller and permit Seller to defend
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the claim, action or suit. Buyer shall provide reasonable assistance to Seller
in the defense of the claim, action or suit.
13. FORCE MAJEURE
Neither party shall be liable for delay or failure to perform in whole
or in part, by reason of contingencies beyond the reasonable control of the
party affected, whether herein specifically enumerated or not. These
contingencies include, among others, act of God, act of war, revolution, riot,
acts of public enemies, delays of carriers, car shortage, fire, explosion,
breakdown of plant, strike, lockout, labor dispute, casualty or accident,
earthquake, flood, cyclone, tornado, hurricane or other windstorm,
contingencies interfering with the production or with customary or usual means
of transportation of the Products, or of any raw materials of which the
Products are a product or which may be used in its manufacture, delays of
vendors, or by reason of any law, order, proclamation, regulation, ordinance,
demand, requisition or requirement or any other act of any governmental
authority, foreign or domestic, local, state or federal, or any other
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cause whatsoever, whether similar or dissimilar to those enumerated. However,
the party so affected shall promptly give written notice to the other party
whenever such contingency or other act becomes reasonably foreseeable, and
shall use its best efforts to overcome the effects of the contingency as
promptly as possible, and shall promptly give written notice to the other party
of the cessation of such contingency. Neither party, however, shall be required
to resolve a strike, lockout or other labor problem in a manner which it alone
does not deem proper and advisable.
If Seller, by reason of a contingency referred to above, is unable to
supply products the same as or similar to the Products to all of its customers,
including Buyer, in the quantities contracted for, Seller shall, during the
continuance of such contingency, allocate its capacity to produce and/or
deliver the Products first to fulfill its internal requirements, then to
buyers, including Buyer, having contracts for the delivery of glass fiber
reinforcements on a ratable basis, and its remaining capacity to produce and/or
deliver the Products to its other customers on such basis as Seller shall
determine.
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Deliveries omitted due to any excused contingency affecting Seller or
Buyer shall, without liability, reduce by an equivalent quantity the quantity
of Products to be sold and delivered during the Contract Year(s) in which such
contingency occurred.
If Seller is unable to deliver Buyer's requirements for the Products
due to a contingency referred to above, Buyer may purchase from other sellers
such quantities of its requirements for the Products greater than the
quantities delivered by Seller.
14. MEET OR RELEASE
If Buyer is offered a product of quality similar to one or all of the
Products, in a quantity equal to 60% of the quantity of the Product(s) to be
manufactured, sold and delivered by Seller during the then current Contract
Year, for delivery over the next succeeding 12 month period, at a delivered
price for the next succeeding 12 months which is lower than the price,
including the cost of delivery to Buyer, then in effect under this Agreement,
Seller shall, upon receipt of satisfactory evidence from Buyer of terms and
conditions of the competitive
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price, within ten days of delivery of the evidence, either meet such lower
price or permit Buyer to accept the offer. If Seller elects to meet the lower
price, Seller shall so notify Buyer, in which event the price of the Product(s)
shall be revised to such lower price for a period of time equal to that in
which the competitive price would have remained in effect.
If Seller elects not to meet the lower price, Buyer is released for
the 12 month period to purchase the quantities of the Product(s) offered by the
competitive source and any quantity of product purchased in response to the
competitive offer shall be in satisfaction of the requirement to purchase an
equivalent quantity of the Product(s) hereunder.
15. SAFETY AND HEALTH COMMUNICATIONS
Seller shall furnish to Buyer Material Safety Data Sheets which
include health, safety and other hazard communication information on the
Products consistent with the Occupational Safety and Health Administration's
Hazard Communications Standard. Seller will also furnish other health or safety
information as available. Buyer shall disseminate appropriate health and safety
information to all persons Buyer foresees may
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be exposed to the Products (including but not limited to Buyer's employees,
contractors and customers). If the Products are further processed, mixed or
incorporated into another product, Buyer will likewise disseminate appropriate
health and safety information to all persons Buyer foresees may be exposed to
the Products.
16. LIABILITIES - CLAIMS - INDEMNIFICATION
Buyer shall indemnify, defend and hold Seller harmless from and
against any liability (whether strict or otherwise) for any claim, loss or
expense on account of any injury, disease or death of persons (including
Buyer's employees) or damage to property (including Buyer's) arising out of:
A. Buyer or Buyer's customers unloading, storage, handling, sale
or use of the Products (except to the extent caused solely by
Seller's negligence); and,
B. Any failure by Buyer to disseminate safety and health
information as provided in Paragraph 15.
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17. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, as applied to contracts executed in and
performed wholly within the State of New York.
18. NON-WAIVER
A waiver by either party of any breach or failure to enforce any term
or condition of this Agreement shall not in any way affect, limit or waive such
party's right at any time to enforce strict compliance with that or any other
term or condition of this Agreement.
19. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding of the parties
with respect to the subject matter of this Agreement and supersedes all prior
understandings, negotiations, and dealings between the parties hereto with
respect to this subject matter. No agreement or understanding, oral or written,
in any way purporting to modify the terms hereof shall be binding on either
party hereto unless contained in a written
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document expressly described as an amendment to or extension of this Agreement
and duly executed by both parties.
20. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of
both parties and their respective successors and assigns. Neither party shall
assign this Agreement without the written consent of the other; provided, this
Agreement may be assigned by either party, without consent, to any entity or an
affiliate (a "Successor") which acquires all or substantially all of the assets
of the party related to the party's performance under this Agreement, provided
the Successor shall assume all of the party's obligations under this Agreement
to be performed from and after the date of such assignment. Upon assignment to
a Successor, the assignor shall thereupon be relieved of its obligations under
this Agreement upon the Successor's agreement to assume such obligations.
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21. NOTICES
Any notice, request, demand or other communication given under this
Agreement shall be in writing and shall be deemed sufficiently given:
1. Upon the date received by the intended recipient if delivered
by hand, nationally recognized courier or facsimile (and
followed by a notice in writing as provided by subparagraph 2,
below); or
2. If the sender so elects, upon the date deposited in the United
States mails, certified with return receipt requested, postage
prepaid, addressed to the intended recipient, as follows:
- To Seller: ▇▇▇▇▇-▇▇▇▇▇▇▇ Fiberglas Corporation
Fiberglas Tower
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Sales and
Marketing, Composites.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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- To Buyer: OCTANS, INC. (to be replaced by Octans, Inc.
(to be renamed Fluid Containment, Inc.))
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Operations Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
- To such other address or addresses as either party may hereinafter
designate in writing.
22. CAPTIONS
The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
23. SEVERABILITY
If any provision in this Agreement is determined by any court having
jurisdiction over the parties to be unenforceable, the provision shall be
amended to become enforceable or, at the
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election of the parties, severed from this Agreement, and this Agreement shall
otherwise remain in full force and effect for the remaining term.
24. DEFAULT
Except as otherwise specifically provided in this Agreement, if either
party fails to perform any of the terms of this Agreement, or the terms and
conditions of any other agreement between the parties, the other party may
defer its performance under this Agreement until the default is cured by the
defaulting party, or at its option, the party may treat such default as a
breach of the entire Agreement and, if such default is not cured within 30
days, except for the payment of monies which shall be cured within five
business days, after the giving of notice thereof to the defaulting party,
immediately terminate this Agreement.
A termination of this Agreement by a party shall not be construed a
waiver of any other legal remedies which may be available to the party, all
such remedies being cumulative.
The waiver by a party of a default hereunder, or under any other
agreement between the parties, shall not constitute a
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continuing waiver of the particular default or a waiver of any subsequent
default.
25. ARBITRATION
Any dispute or controversy between the parties arising out of or
relating to this Agreement, including without limitation, a dispute or
controversy relating to the construction of any provision or the validity or
enforceability of any term or condition (including this paragraph) or of the
entire Agreement, or any claim that all or any part of this Agreement
(including this provision) is void or voidable, shall be submitted to
arbitration before a single arbitrator in accordance with the Commercial Rules
of Arbitration of the American Arbitration Association then in effect. The
arbitration shall be held in Toledo, Ohio. Each party shall bear his or its own
costs in any such proceeding. The decision of the arbitrator shall be final and
binding upon the parties and may be enforced in any court of competent
jurisdiction. To the fullest extent permitted by law, the parties irrevocably
submit to the jurisdiction of such forum and waive any objection it may have to
either the jurisdiction or venue of
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such forum.
26. TECHNICAL SUPPORT
Seller shall provide Buyer with reasonable access to Seller's
technical library at no cost to Buyer. Upon reasonable request by Buyer,
Seller, at Seller's standard costs and to the extent Seller's qualified
employees are reasonably available, shall provide to Buyer technical,
structural and engineering support to Buyer.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
OCTANS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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▇▇▇▇▇-▇▇▇▇▇▇▇ FIBERGLAS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ LUNDUGIN
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Title: VICE PRESIDENT
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