EXHIBIT 10.20
STRATEGIC ALLIANCE AGREEMENT
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This STRATEGIC ALLIANCE AGREEMENT (this "Agreement"), is entered into by and
between Excalibur Industries, Inc., hereinafter called "Excalibur" and Born,
Inc. hereinafter called "Born." Excalibur and Born shall be sometimes
hereinafter referred to individually as a "party" and collectively as the
"parties."
W I T N E S S E T H:
WHEREAS, Born has been involved in the design, manufacture, and supply of direct
fired heater technology to the oil and gas, petro-chemical and power markets;
WHEREAS, Excalibur, through its operating subsidiaries, has capabilities for
high quality steel fabrication, piping and vessel fabrication with ASME code
welding, and precision CNC machining;
WHEREAS, Born desires to purchase goods and services from Excalibur;
WHEREAS, in this regard, Excalibur and Born have discussed Excalibur dedicating
personnel, equipment, and shop space at Excalibur facilities in order to
prioritize the manufacturing and service needs of Born;
NOW, THEREFORE, in consideration of the mutual benefits to be derived and the
conditions and promises that follow, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, and intending to be
legally bound, the parties agree as follows:
1. TERMINATION DATE. October 14, 2005.
2. TERM. The term of this Agreement ("Term") shall commence on
the date of execution hereof, and shall terminate on the
Termination Date, unless earlier terminated as set forth in
this Agreement. This agreement may be renewed with revisions
mutually agreed to by both parties.
3. PRIORITY CUSTOMER STATUS. Excalibur hereby designates Born as
a priority status customer and agrees to make its
"best-efforts" to meet Born's production requirements.
4. DEDICATED FACILITIES. Excalibur agrees to dedicate at least
35,000 square feet of shop space for the timely manufacture of
Born products through Excalibur Services and its other
Excalibur affiliates.
5. CONTRACT VOLUME. Born estimates to provide a minimum of twelve
million ($12,000,000) in contract volume over the agreement
period to Excalibur for goods and services.
6. JOINT MARKETING ALLIANCE. Excalibur and Born agree to combine
efforts in cooperative marketing to produce and develop sales
programs to acquire additional customers and market share.
7. ENGINEERING SERVICES. It is anticipated that Excalibur will
desire to utilize engineering services from Born from time to
time.
8. INDEMNITY.
a. Born shall indemnify, defend, and hold harmless Excalibur,
and its officers, directors, managers, members, agents,
employees, parents, subsidiaries, and its and their respective
affiliates (collectively, the "Excalibur Indemnified Parties")
from and against any and all claims or costs suffered by the
Excalibur Indemnified Parties (or any of them) arising out of
or related to: (i) any injury to or death of persons or damage
to property, as well as any and all claims whatsoever by any
third parties, arising out of, related to, caused by, or
happening in connection with Born's business or operations or
the performance of its obligations hereunder (including,
without limitation, any and all claims regarding defects in
Born's products or materials, or the failure of same to comply
with applicable law, unless covered by separate specific
contracts between Born and Excalibur) unless and to the extent
that the same is caused by Excalibur's gross negligence or
willful misconduct; and (iii) any Event of Default by Born
with respect to any of its obligations under this Agreement.
b. Excalibur shall indemnify, defend, and hold harmless Born,
and its officers, directors, managers, members, agents,
employees, parents, subsidiaries, and its and their respective
affiliates (collectively, the "Born Indemnified Parties") from
and against any and all Claims or Costs suffered by the Born
Indemnified Parties (or any of them) arising out of or related
to: (i) any injury to or death of persons or damage to
property, as well as any and all claims whatsoever by any
third parties, arising out of, related to, caused by, or
happening in connection with Excalibur's business or
operations or the performance of its obligations hereunder or
under any Subcontract (including, without limitation, any and
all claims regarding defects in Excalibur's manufacturing or
production processes, or its products or materials, or the
failure of same to comply with applicable law, unless covered
by separate specific contracts between Born and Excalibur)
unless and to the extent that the same is caused by Born's
gross negligence or willful misconduct; and (iii) any Event of
Default by Excalibur with respect to any of its obligations
under this Agreement.
9. ASSIGNMENT. The rights and obligations of either party under
this Agreement may not be assigned, subcontracted, or
delegated without the prior written consent of the other
Party, and no delegation of obligations hereunder shall be
effective unless the Person assuming the obligations agrees in
writing to be bound by the terms and conditions hereof.
Subject to the immediately preceding sentence, all covenants,
terms, conditions, and provisions of this Agreement shall be
binding upon the Parties hereto and shall extend to and be
binding upon the successors and permitted assigns of the
Parties hereto
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10. NOTICE. Any notice which may or shall be given under the terms
of this Agreement shall be in writing and shall be either
delivered by hand or sent by United States Registered or
Certified Mail, postage prepaid, if for Excalibur: Excalibur
Industries, Inc.; 00000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx, 00000 or if for Born, to: Born, Inc.;408 Xxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000. Such addresses may be changed
from time to time by either party by giving notice as provided
above. Notice shall be deemed given when delivered (if
delivered by hand) or when postmarked (if sent by mail).
11. MISCELLANEOUS.
(a) CHOICE OF LAW; VENUE. This Agreement shall be governed by, and
construed, enforced, and performed in accordance with the
internal, local laws of the State of Oklahoma, without regard
to its principles on conflicts of law which would select
another law. The parties further agree that the State and
Federal Courts of Tulsa, Tulsa County, Oklahoma shall have
exclusive jurisdiction and venue to here and resolve any and
all claims, causes of action, and disputes arising out of or
relating to this Agreement, or the enforcement or
interpretation hereof.
(b) ENTIRE AGREEMENT; AMENDMENTS; INTERPRETATION. This Agreement
including the Exhibits and Schedules hereto (if any)
constitute the entire agreement between the Parties relating
to the subject matter contemplated by this Agreement and
supersedes any prior or contemporaneous agreements or
representations affecting the same subject matter. No
amendment, modification, or change to this Agreement shall be
enforceable unless reduced to a writing executed by the Party
against whom such amendment, modification, or change is sought
to be enforced. The Parties acknowledge that each Party and
its counsel have reviewed and revised this Agreement and that
the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting Party
shall not be used in interpretation of this Agreement.
(c) COUNTERPARTS; SEVERABILITY; SURVIVAL. This Agreement may be
executed in several counterparts, each of which is an original
and all of which constitute one and the same instrument.
Except as may otherwise be stated herein, any provision or
Section hereof that is declared or rendered unlawful by any
applicable court of law or regulatory agency, or deemed
unlawful because of a statutory change, will not otherwise
affect the lawful obligations that arise under this Agreement.
If any provision of this Agreement is declared unlawful, the
Parties will promptly renegotiate to restore this Agreement as
near as possible to its original intent and effect. All
indemnities shall survive the expiration or termination of
this Agreement.
(d) NON-WAIVER; NO PARTNERSHIP OR THIRD PARTY BENEFICIARIES. No
waiver by any Party of any its rights with respect to the
other Party or with respect to any matter or default arising
in connection with this Agreement shall be construed as a
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waiver of any subsequent right, matter, or default whether of
a like kind or different nature. Any waiver shall be in
writing signed by the waiving Party. Nothing contained in this
Agreement shall be construed or constitute any Party as the
employee, agent, partner, joint venture, or contractor of any
other Party. This Agreement is made and entered into for the
sole protection and legal benefit of the Parties, and their
permitted successors and assigns, and no other person shall be
a direct or indirect legal beneficiary of, or have any direct
or indirect cause of action or claim in connection with, this
Agreement.
(e) TERMINATION OF AGREEMENT. This agreement may be terminated by
either party without penalty with sixty (60) days written
notice to the other party.
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EXECUTED in multiple counterparts, each of which shall have the force
and effect of an original, on this the day of ___________, 2002, to be effective
the ______ day of ___________, 2002.
BORN, INC.
By: /S/ Xxxxxx Born
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Xxxxxx Born
Chief Executive Officer
EXCALIBUR INDUSTRIES, INC.
By: /S/ Xxxxxxx X.X. Xxxxxx
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Xxxxxxx X.X. Xxxxxx
Chief Executive Officer
EXCALIBUR SERVICES, INC.
By: /S/ Xxxxxxx X.X. Xxxxxx
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Xxxxxxx X.X. Xxxxxx
Chief Executive Officer
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