EXHIBIT 10.21
EQUIPMENT LEASE
This Agreement is made as of the 5th day of February 1998, by and
between COMMODORE SEPARATION TECHNOLOGIES, INC., a corporation organized and
existing under the laws of the State of Delaware ("Commodore"), and Maryland
Environmental Service, an agency and instrumentality of the State of Maryland
("MES").
RECITALS:
WHEREAS, Commodore owns certain proprietary technology related to a
supported liquid membrane device and process which uses a liquid membrane
support, diluent mixtures, membrane temperature gradients, carrier solutions,
and other proprietary processes for which Commodore has filed one or more patent
applications with the United States Patent and Trademark Office; Commodore also
owns proprietary know-how and other proprietary information related to its
supported liquid membrane device and process; (all of the foregoing proprietary
technology, know-how and information is hereinafter referred to as Commodore's
"Supported Liquid Membrane Technology"); Commodore's Supported Liquid Membrane
Technology has the ability to process wastewater such as leachate and separate
and/or remove from the leachate metals such as chromium; and
WHEREAS, Commodore has developed proprietary equipment ("Proprietary
Equipment") which incorporates and actuates the Supported Liquid Membrane
Technology for processing wastewater such as leachate and for separating and
removing chromium; Commodore has also developed certain computer software,
including source code and object code (the "Software") which operates and
controls the Supported Liquid Membrane Technology and the Proprietary Equipment
in combination with other non-proprietary equipment. The Supported Liquid
Membrane Technology, the Proprietary Equipment and the Software, are described
on Schedule A attached to a License Agreement of even date herewith between the
parties and are hereinafter collectively referred to as "Intellectual Property";
WHEREAS, Commodore's Intellectual Property, when combined with certain
non-proprietary equipment and an immobilized ligand process equipment
proprietary to a third party, all described on Schedule 2.5 attached hereto (the
"Equipment") can separate and remove total chromium from wastewater such as
leachate;
WHEREAS, MES operates leachate treatment facilities ("Leachate
Treatment Facilities") at the Dundalk Marine Terminal Waste Treatment Facility
at the Port of Baltimore, Maryland ("Dundalk Marine Terminal") at which it must,
inter alia, remove total chromium from leachate before, discharging the
leachate;
WHEREAS, Commodore has licensed its Intellectual Property to MES
pursuant to a License Agreement of even date herewith and Commodore is hereby
willing to lease the Equipment to MES under and subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and for and in consideration of the terms and conditions
hereinafter set forth, and intending to be legally bound, the parties hereto
agree as follows:
ARTICLE I
1.1 Recitals. The foregoing recitals are incorporated herein as if set
forth at length.
ARTICLE II
Lease of Equipment
2.1 Initial Lease Price. Subject to the terms and condition of this
Agreement and the License Agreement of even date herewith between the parties
hereto (the "License Agreement"), Commodore hereby agrees to lease and does
hereby lease the Equipment to MES and MES hereby agrees to lease and does hereby
lease the Equipment from Commodore for an initial, one time, non-refundable sum
of Three Hundred Fifty Thousand Do1lars ($350,000.00) (the "Initial Lease
Price") the Equipment as more fully described on Schedule 2.5 hereto which is
incorporated herein by reference.
2.2 Delivery, Installation and Start-Up. As part of the Initial Lease
Price, Commodore hereby agrees, at its sole cost and expense, to deliver the
Equipment at Dundalk Marine Terminal. MES agrees to make all necessary
electrical and plumbing connections from a building (the "Building") to be
erected by MES at Dundalk Marine Terminal (the "Building") to the Equipment.
Commodore agrees to test the Equipment through the "Commissioning Date" as
hereinafter defined in Section 2.7 hereof.
2.3 Payment Terms. MES shall pay the Initial Lease Price to Commodore
as follows (i) 25% of the Initial Lease Price, or Eighty-Seven Thousand Five
Hundred Dollars ($87,500.00), within ten (10) days of execution and delivery of
this Agreement and the License Agreement and delivery to MES of a Bond or Letter
of Credit referred to in Section 4.2 hereof; (ii) Fifty percent (50%) of the
Initial Lease Price, or One Hundred Seventy-Five Thousand Dollars ($175,000.00)
within ten (10) days of delivery to MES and installation of the Equipment at
Dundalk Marine Terminal and (iii) the balance of the Initial Lease Price, i.e.,
twenty five percent (25%) or Eighty Seven Thousand Five Hundred Dollars
($87,500.00) within ten (10) days after the Commissioning Date (as hereinafter
defined) of the Equipment.
2.4 Commissioning Date: For purposes of this Agreement, "Commissioning
Date" means and refers to the date on which the Equipment has been installed,
fully tested and processes 100,000 gallons of leachate to meet the Effluent
Limitations as hereinafter defined in Section 5.2 hereof during an operational
period of 48 hours which operational period may either consist of 48 continuous
hours or four consecutive 12 hour work days.
2.5 Description of Equipment. The Equipment which Commodore hereby
leases to MES is a part of a CST System which consists of the Equipment
described on Schedule 2.5 attached hereto and incorporated herein. Commodore
reserves the right, at its sole cost and expense, to provide substitute or
supplementary trichromium removal equipment.
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2.6 Shipping Costs. Commodore agrees to pay, at its sole cost and
expense, all costs and expenses associated with shipping and transporting the
Equipment from Commodore's manufacturing facility at Dublin, Ohio to Dundalk
Marine Terminal.
2.7 Installation Date: CST will be ready to deliver and install the
Equipment to meet the start date specified in MES' Project I.D. No. 97-03-45
(the "Project").
2.8 Acceptance. MES shall have no duty to accept the Equipment until it
meets the performance specified in Section 2.4 hereof. MES shall accept the
Equipment on the Commissioning Date as defined in Section 2.4 hereof.
2.9 Additional Lease Payments. In addition to the Initial Lease Price,
during the term of this Agreement, MES shall pay a fixed, flat monthly lease
payment (the "Additional Lease Payment") to Commodore equivalent to 50% of the
chemical cost savings and sludge disposal cost savings realized by using the
Intellectual Property and the Equipment compared to the cost of using a chemical
precipitation system for processing the chromium generated by Dundalk Marine
Terminal Leachate Treatment Facilities. The parties acknowledge and agree that
the chemical cost savings have been calculated by Black & Xxxxxx in an April 1-3
Value Engineering Report, amended May 1, 1997, and as further amended on August,
1997, using value engineering principles based on a complete life cycle analysis
(including the capital costs, and cost of operation, maintenance and repair) of
using Commodore's Intellectual Property and the Equipment compared to a
chemical precipitation method (the "Baseline Cost Savings"). The Baseline
Savings Cost shall be computed and expressed on a unit price basis for each
gallon of leachate actually processed by the Equipment and for the cost of each
gallon of sludge actually disposed of (if any). The Baseline Cost Savings shall
remain effective from the Effective Date hereof and during the Initial Term (as
hereinafter defined) hereof. Thereafter, during any renewal period of the term
of this Agreement, based on price indexing for variable components such as
fluctuating costs for chemicals and sludge disposal, the parties shall annually
review and on or before each anniversary of the Commissioning Date, agree upon
adjustments to the Baseline Cost Savings and adjust the Additional Lease
Payment, payable monthly, accordingly.
2.10 Baseline Cost Savings Determination. The parties shall agree on
the Baseline Cost Savings on or before the execution of this Agreement. If the
parties execute and deliver this Agreement prior to their having reached
agreement on the Baseline Cost Savings, and they are unable to thereafter agree
upon the Baseline Cost Savings, they shall submit any dispute in regard thereto
to arbitration by the American Arbitration Association conducted in accord with
the rules of commercial arbitration then in effect.
2.11 Time for Payment. MES shall remit all Additional Lease Payments to
Commodore on or before the 20th day of each calendar month for the usage of the
Equipment with the Intellectual Property during the preceding calendar month.
2.12 Additional Potential Future Consideration: Commodore and MES will
cooperate in determining whether the residual chromium separated by the
Intellectual Property and the Equipment and/or any related immobilized ligand
process has commercial value. The "Net Residual Commercial Value" as hereinafter
defined in this section, if any, will be divided and allocated 50% to Commodore
and 50% to MES. The Net Residual Value shall be the difference between the gross
sales price of the residual chromium and Residual Chromium Sales Costs (as
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defined in this Section 2.12). Residual Chromium Sales Costs shall be the sum of
MES' cost of removal of the residual chromium or strip solution from the
Equipment, and storage, treatment and transportation of the residual chromium or
strip solution. Commodore will have the exclusive first right to broker the
residual chromium, but Commodore shall never own, take title to, arrange for
transportation of, store or, except as hereinafter set forth in Section 8.2,
have responsibility to dispose of the residual chromium or the strip solution
from the Equipment or any related immobilized ligand process in which it is
contained.
2.13 Initial Term. This Agreement shall become effective on the day and
date above written and except as hereinafter provided in Section 9.1 continue in
full force and effect for a minimum term of two years (the "Initial Term") from
the Commissioning Date.
2.14 Renewal. Either party may unilaterally terminate this Agreement at
the expiration of the Initial Term by giving notice to the other party of its
intention to do so at least 90 days prior to the expiration of the Initial Term.
In the absence of notice by either party to the other within 90 days of the
expiration of the Initial Term of their intention to terminate this Agreement,
the Initial Term shall be deemed to be extended from year to year. Thereafter,
either party may unilaterally terminate this Agreement at the end of any one (1)
year renewal term by giving the other party at least 90 days prior written
notice to the other whereupon this Agreement shall terminate upon the
expiration of any such renewal term.
2.15 Option to Purchase. At the expiration or termination of this
Agreement, and provided that MES is not in default of any term or provision of
this Agreement or of the License Agreement, MES may, at its option, purchase the
Equipment for the sum of Ten ($10.00) Dollars. The Equipment shall not include
the Intellectual Property, any metal concentration monitoring device affixed to
the Equipment, or any other item not described on Schedule 2.5 hereto.
2.16 Termination. In addition to any other basis for expiration or
termination of this Agreement, except as hereinafter provided, this Agreement
and the License Agreement shall terminate upon MES making any claim against the
Bond referred to in Section 4.2 hereof. Upon MES making any claim against the
Bond referred to in Section 4.2 hereof, this Agreement shall terminate and MES
shall, at Commodore's sole cost and expense, return the Equipment and the
Intellectual Property to Commodore. Provided, however, notwithstanding anything
herein to the contrary, in the event MES makes a claim against the Bond, MES may
elect to maintain this Agreement in force and effect for a reasonable period of
time to secure a replacement system to treat the leachate.
2.17 Remedies upon Termination for Cause. Except as otherwise set forth
to the contrary in this Agreement, nothing in this Agreement shall be construed
as a waiver by either party of its rights and remedies against the other party
in the event this Agreement is terminated as a result of a breach of this
Agreement by the other party. In that event, except as otherwise set forth
herein, all such rights and remedies are reserved.
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ARTICLE III
Limitations
3.1 Limitions on Use. MES covenants and agrees that, except as
hereinafter provided, and as long as this Agreement and the License Agreement
remain in force and effect, it shall use the Equipment: (i) exclusively for the
purpose of removing and separating total chromium and/or chromium VI from MES'
Dundalk Marine Terminal Leachate Treatment Facilities and for no other purpose
whatsoever, and (ii) strictly in accord with the License Agreement.
3.2 Restriction of Transfer and Use. MES covenants and agrees that as
long as this Agreement and the License Agreement remain in force and effect, it
will not sell, lease, license, sublicense, lend or otherwise transfer possession
of or title to the Equipment to any third party or engage any third party to
operate the Equipment without the express written consent of Commodore which may
be withheld for any reason or for no reason. MES further covenants and agrees
that it will not and it will not permit others to disassemble, decompile,
reverse engineer, modify, alter, or tamper with or service the Equipment without
the express written consent of Commodore which may be withheld for any reason or
for no reason. Notwithstanding the foregoing, MES may disassemble, alter, or
remove the Equipment if (i) MES is ordered to do so by a judicial, environmental
or public safety authority, or (ii) there exists fire, storm or other extreme
conditions at Dundalk Marine Terminal that require immediate action by MES. In
either event, MES shall promptly notify Commodore of its actions, and it shall
take reasonable actions to prevent others from gaining access to the Equipment.
MES further covenants and agrees it will not permit others to commercially
exploit the Equipment in any way.
3.3 Use Upon Breach. In the event of a breach of this Agreement or the
License Agreement by MES, it shall immediately discontinue using the Equipment
and the Intellectual Property until or unless said breach is cured.
ARTICLE IV
Design and Performance of Equipment
4.1 Equipment Design. MES hereby acknowledges that it has made
representations to Commodore about the Dundalk Marine Terminal volume of
leachate and the concentrations of total chromium contained therein, the pH,
temperature of the leachate stream and the concentrations of total suspended
solids contained therein (the "Leachate Representations") which it will or
intends to process per 24-hour period at the Dundalk Marine Terminal Leachate
Treatment Facilities, to-wit, MES has represented and hereby represents that it
intends to process a maximum daily volume of 50,000 gallons of leachate which
will have a maximum concentration of 100 parts per million (ppm) of total
chromium and 60 ppm of chromium VI; MES further has represented that the
leachate stream will have (i) a pH ranging between 12.0 and 13.5, (ii) a
temperature ranging between 45 degrees F and 100 degrees F, and (iii) will be
filtered so that it is free of debris and/or total suspended solids exceeding 10
microns in size. MES also acknowledges that
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Commodore has relied on the Leachate Representations to design the Equipment
which is the subject of this Agreement and to make the representations and
warranties contained herein.
4.2 Performance Bond. At or before the delivery of the Equipment to
Dundalk Marine Terminal, and during the Initial Term hereof, Commodore will post
and maintain in force and effect a performance bond (the "Bond"), in favor of
MES, either in a form of a surety bond issued by a surety licensed to write
surety bonds in Maryland, or in the form of a letter of credit issued by a prime
United States bank, in the amount of Three Hundred Fifty Thousand Dollars
($350,000.00). The Bond will provide assurance that, except for normal equipment
failure, acts of God and similar interruptions over which Commodore has no
control, the Equipment will meet the Effluent Limitations (as hereinafter
defined in Section 5.2 hereof). Provided, that the Equipment shall not be deemed
to have failed to meet Effluent Limitations until after notice to Commodore and
reasonable opportunity to cure. In the event that the Equipment fails to meet
Effluent Limitations, MES shall be entitled to demand payment on the Bond for an
amount up to, but not to exceed, the face amount of the Bond, to cover the
acquisition, installation and commissioning of a substitute chemical
precipitation unit and incidental damages directly related to installing a
substitute chemical precipitation unit (including any cost needed for replumbing
and installation of necessary controls for a substitute chemical precipitation
unit) and the costs of disposal, if any, of leachate until the substitute
chemical precipitation unit is installed and commissioned, said period not to
exceed 180 days. Upon such demand, this Agreement and the License Agreement
shall terminate. All other liability for breach of warranty, including, without
limitation, liability for incidental and consequential damages, are hereby
disclaimed by Commodore and waived by MES. Any claim by MES for liability on the
Bond must be made within two (2) years from the Commissioning Date, or else
liability on the Bond will expire. In the event that MES exercises its option to
purchase the Equipment pursuant to Section 2.15 hereof, the liability on the
Bond shall automatically expire. Nothing herein shall be construed as a waiver
of (i) Commodore's right to contest the validity of MES' demand for payment on
the Bond, (ii) Commodore's right to contest any contention by MES that the
Equipment failed to process leachate to meet the Effluent Limitations or (iii)
any other right or defense of Commodore. Notwithstanding anything herein to the
contrary, in the event that MES exercises its option to purchase the Equipment,
liability on the Bond shall expire upon the giving of the notice of such
exercise. Upon expiration of liability on the Bond, MES shall either issue a
letter advising Commodore and the surety or issuing bank that liability on the
Bond has terminated or return the original of any surety bond or letter of
credit to the issuing surety or bank.
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ARTICLE V
Representations and Warranties
A. By Commodore
5.1 Disclaimer. Commodore, for itself, its predecessors, successors,
agents, servants, contractors, vendors and supplies, hereby expressly disclaims
any warranty, express or implied, including, without limitation, any warranty as
to fitness for a particular purpose, which is not expressly set forth herein.
5.2 Performance Warranties, Commodore hereby warrants that the
Equipment, when properly maintained, serviced, and used as intended and used in
conjunction with the Intellectual Property, and when processing leachate which
falls within the parameters of the Leachate Representations, will meet the
Effluent Limitations at the Dundalk Marine Terminal Leachate Treatment
Facilities for chromium VI and total chromium, that is a maximum daily average
of 0.1 ppm for chromimn VI and 1.0 ppm. for total chromium, and a monthly
average of 0.05 ppm. for chromium VI and 0.5 ppm for total chromium ("Effluent
Limitations"). The pH of all discharged effluent shall be between 6.0 and 9.0.
The parties agree that for purposes of this Agreement, the exclusive analytical
method for analyzing the concentration of Total Chromium shall be the
inductively coupled plasma ("ICP") methodology and that the exclusive method for
analyzing Chromium VI shall be the atomic absorption spectrophotometric
methodology. Commodore hereby covenants and agrees that the warranties set forth
in this section shall remain in full force and effect notwithstanding the
failure of Commodore to perform the services specified in Section 6.1 hereof.
5.3 Manufacturers' Warranty. Commodore shall, to the extent authorized
and permitted by law and agreement, transfer to MES the benefit of each and
every manufacturer's warranty (if any) for each and every part or component of
the Equipment which is subject to a third party manufacturer's warranty.
Commodore shall take all reasonable steps to assist MES in processing any such
manufacturer's warranty claims. Commodore shall not take any action to waive or
void any third party manufacturer's warranty without the express written consent
of MES.
5.4 Commodore's Limited Warranty. Commodore hereby warrants that each
SLM xxxxxxx, consisting of the hollow porous fiber membrane in a casing, which
is a part of the Intellectual Property and connected to in the Equipment but not
Commodore's proprietary solution inside the cartridge an the other Intellectual
Property, for a period of one year will be free of defects in workmanship and
materials. Except as hereinafter provided, Commodore warrants
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B. By MES
5.5 Leachate Parameters. MES hereby represents and warrants that all
Dundalk Marine Terminal Leachate Treatment Facilities such as leachate entering
Commodore's Equipment for processing will have the following characteristics:
(i) volume not to exceed 50,000 gpd; (ii) total chromium not to exceed 100 ppm;
(iii) chromium VI not to exceed 60 ppm, (iv) pH between 12.0 and 13.5, (iv)
temperature between 45 degrees F and 1000 degrees F and (v) shall be free of
debris or suspended solids which exceed 10 microns in size.
ARTICLE VI
Service
6.1 Service of Equipment. Commodore will have the exclusive right to
service any aspect of its Intellectual Property which is attached to the
Equipment. During the first year following the Commissioning Date, MES shall pay
to Commodore $44.00 per hour for each hour of on-site labor required to service
the Intellectual Property (the "Equipment Service, Rate"). In no event will
Commodore charge MES for more than the aggregate amount of $450.00 for air fare,
automobile rental and lodging in respect to each necessary trip for service to
the Intellectual Property or the Equipment. The Equipment Service Rate will only
be paid for non-warranty services provided at Dundalk Marine Terminal, and shall
not include any travel time. MES will not be obligated to pay for more than one
technician or other labor unless it agrees in writing prior to the arrival of
the technician to Dundalk Marine Terminal. After the first year the Equipment
Service Rate may be increased by mutual agreement of the parties, but in no
event will the Equipment Service Rate increase by more than the Consumer Price
Index for the Baltimore-Washington area. The repair of other non-Commodore parts
or materials, which Commodore is able to service will be serviced at the same
rate. If Commodore is unable to repair any non-Commodore parts or materials,
Commodore shall immediately notify MES, and MES shall promptly arrange for the
repair of such parts or materials. Commodore shall honor any express warranty
made herein at its sole cost and expense.
6.2 Proprietary Solution. MES hereby acknowledges and agrees that the
proprietary solution inside the SLM cartridge must be changed periodically for
the Equipment and Intellectual Property to meet Commodore's performance
warranties. Commodore shall be exclusively responsible for changing the solution
in the SLM cartridge on a regular basis so that the Equipment and Intellectual
Property fully meets or exceeds, at all times, the performance warranties set
forth in Section 5.2 of this Agreement. MES shall pay the sum of One Thousand
Eight Hundred Ninety Dollars ($1,890.00) per gallon for each gallon of solution
placed in the Equipment, not to exceed Thirty Eight Thousand Seven Hundred Fifty
Dollars ($38,750.00) per calendar year.
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ARTICLE VII
MES Covenants
7.1 Applicable Laws. MES agrees to operate the Equipment and to carry
on its business involving the Equipment in accordance with all applicable laws,
rules, regulations, orders or other requirements. Without in any way limiting
the generality of the foregoing, and except as hereinafter set forth in Section
8.2 hereof, MES, at its sole cost and expense, hereby covenants and agrees to
properly dispose of (i) all chromium (including total chromium) contained in the
strip solution which cannot be resold or recycled (ii) all chromium (including
total chromium) contaminated sludge generated by the CST System (iii) all other
hazardous substances contained in or mixed with the leachate or the strip
solution and (iv) all components of the Equipment contaminated with any
hazardous or toxic substances which are discarded during the term of this
Agreement or, at Commodore's election, which MES does not exercise its option to
purchase pursuant to Section 2.14 hereof.
7.2 Equipment. MES covenants to supply, on or before the start date, at
the Dundalk Marine Terminal Leachate Treatment Facilities a building, the
equipment and services on Schedule 7.2 hereof.
ARTICLE VIII
Commodore Covenants
8.1 Consultation. Commodore covenants to make its representatives
available for consultation and support of the Intellectual Property. Except with
respect to warranty services provided under Article V hereof, all
representatives will be billed to MES according to Commodore's standard
schedule of rates for its employees and representatives, a copy of which is
attached hereto as Schedule 8.1 and incorporated herein by reference. MES shall
have no obligation to pay any consultation fees provided pursuant to this
section unless specifically authorized in advance by MES.
8.2 Commodore's Costs of Chromium Disposal. Notwithstanding anything to
the contrary in this Agreement, if, despite due diligence and best efforts, the
parties are unable to sell or MES is otherwise unable to dispose of at no cost
to it, the residual chromium separated by the Equipment and/or any related
immobilized ligand process, then and in that event, during the Initial Term of
this Agreement, and during any renewal term thereof, Commodore agrees to pay
one-half of the costs to dispose of the chromium (but no other hazardous
substances) and/or strip solution containing the chromium (whether from the
Equipment or related immobilized ligand process) (but no other hazardous
substances) in accordance with all applicable laws, rules, regulations, orders
or other requirements.
8.3 Training. Commodore will provide, at its sole cost and expense, the
equivalent of five (5) business days of training to MES' personnel for purposes
of instructing them in the operation of the Equipment and Proprietary
Information. Any additional training necessary to
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instruct MES' personnel shall be provided by Commodore at MES' cost and expense
according to the Schedule of Rates set forth on Schedule 8.1 hereof.
ARTICLE IX
Miscellaneous
9.1 Survival. Upon the expiration or termination of this Agreement for
any reason, the parties hereto agree that all of the representations,
warranties, terms, conditions, undertakings, covenants and promises (whether or
not so captioned) contained herein by either one of them with respect to
limitations on use of the Proprietary Information, remedies, the covenants
against non-disclosure, confidentiality, indemnification, set-off, of
Intellectual Property, repurchase of the Equipment and other similar terms and
conditions which would survive termination or expiration of an agreement of this
nature in order to fully effectuate the intention of the parties shall survive
and shall not be affected by said expiration or termination.
9.2 Notices. All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to be duly given if delivered personally or sent by telefax or by
registered or certified mail (notices sent by telefax or mailed shall be deemed
to have been given on the date received), as follows (or to such other address
as any party shall designate by notice in writing to the others in accordance
herewith:
(i) To: Commodore Separation Technologies, Inc.
c/o Xxxxx X. XxXxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
(ii) To: Maryland Envrionmental Service
Attention: Director
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
9.3 Entire Agreement. This Agreement (including the Schedules) contains
the entire agreement among the parties. This Agreement shall be construed and
interpreted in pari materia with the License Agreement of even date herewith
between the parties hereto and supersedes all prior arrangements or
understandings, written or oral, with respect thereto.
9.4 Amendments. Any term or condition of this Agreement may be amended
or modified in whole or in part at any time, to the extent authorized by
applicable law, by an agreement in writing, authorized and executed in the same
manner as this Agreement by the parties hereto. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power of privilege hereunder, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which any party may otherwise have at law or in equity. The
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rights and remedies of any party arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or breach is based may also be the subject matter of any
other representation, warranty, covenant or agreement contained in this
Agreement (or in any other agreement between the parties) as to which there is
no inaccuracy or breach.
9.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.6 Exhibits. The Exhibits and other documents attached to or delivered
herewith are hereby incorporated and made a part of this Agreement as if set
forth in full herein.
9.7 Drafting. No presumption shall operate in favor of or against any
party in the construction or interpretation of this Agreement as a consequence
of a party's responsibility for drafting this Agreement.
9.8 Attorney and Professional Fees, Each party will pay his/her own
attorney or professional fees in connection with this Agreement or settlement
discussions leading to this Agreement.
9.9 Recitals. The foregoing recitals are incorporated herein as if set
forth at length.
9.10 Captions. The captions of Sections hereof are for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
9.11 Binding Agreement. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective designees,
successors, heirs and assigns.
9.12 Choice of Law and Forum: Severability. This Agreement shall be
governed by and construed in accordance with the laws of State of Maryland
without regard to conflict of law rules.
9.13 Access to Dundalk Marine Terminal. To the extent permitted by law,
MES agrees to allow Commodore access to Dundalk Marine Terminal for the sole
purpose of showing third parties the Equipment in operation. In order to enter
Dundalk Marine Terminal, Commodore must first provide to MES the name of each
individual for whom permission to enter is sought, along with the individuals'
address, business afffliation, and such other information as MES may reasonably
request. Commodore and its party may not enter Dundalk Marine Terminal until MES
first provides permission, which permission shall not be unreasonably denied.
MES may require that all persons entering Dundalk Marine Terminal first agree to
release, hold harmless and indemnify MES, MPA, the State of Maryland, and all
their officers and employees from liability for any injury or damage incurred as
a result of the persons entering Dundalk Marine Terminal.
9.14 Publication. Except as hereinafter provided, Commodore reserves
the prior right to approve all publications or press releases by MES relating to
the Intellectual Property or its performance which approval should not be
unreasonably withheld. Provided, that this reservation
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shall not apply to any information which MES is obligated to report to the
Maryland General Assembly or Executive Branch agency or which it must provide
pursuant to a judicial or administrative order or subpoena.
9.15 Data Sharing MES. MES covenants and agrees to share with
Commodore on a timely and periodic basis all performance related data from the
Equipment. Commodore covenants and agrees to pay for or reimburse MES for the
reasonable cost of providing photocopies of such data, postage and other similar
out-of-pocket expenses for same.
9.16 Testing. Commodore hereby reserves the right, and MES hereby
agrees that Commodore may, upon reasonable advance notice to MES, initiate any
tests of the Equipment or install any items of hardware as part of the Equipment
and/or remove or replace same, provided that all of the foregoing is carried out
at Commodore's sole cost and expense and that it does not in any way interfere
with the operation of the Equipment or separating and removing the chromium from
the Dundalk Marine Terminal leachate, or does not, in any way, interfere with or
prevent the Equipment from meeting any of the warranties set forth in Article V
hereof.
IN WITNESS WHEREOF and intending to be legally bound, the said parties
have hereunto set their hands and seals this 5th day of February, 1998.
Attest: Commodore Separation Technologies, Inc.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------------
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Title: Executive Assistant Title: President and C.O.O.
Witness: Maryland Environmental Service
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
----------------------------- --------------------------------
Xxxxx X. Xxxx
Title: Director
Approved for legal form and
sufficiency this 4th day of
January, 1998
/s/ XXXXXXXXXXXX
----------------------------
Assistant Attorney General
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