EXHIBIT 7.2
COMMODORE ENVIRONMENTAL SERVICES, INC.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
May 30, 2000
Caisse Regionale de Credit Agricole Mutuel
de la Charente Maritime Deux-Sevres
0 Xxxxxxxxx Xxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Dear Sirs:
Reference is made hereby to the Bond Purchase Agreement dated as of December 3,
1993 (the "Bond Purchase Agreement") by and between Commodore Environmental
Services, Inc. (the "Company") and you (the "Investor"), as modified by (1) a
four-page letter agreement from the Company to you dated March 23, 1995, (2) a
two-page letter agreement from the Company to you dated March 23, 1995 and (3) a
five-page letter agreement from the Company to you dated December 2, 1998 (every
such letter agreement together with the Bond Purchase Agreement, the
"Agreement"). Capitalized terms used and not defined herein shall have the
respective meanings given to such terms in the Agreement. For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Extension of Maturity Date. Section 2.03 of the Bond Purchase Agreement is
hereby modified to provide that the entire outstanding principal balance of all
Convertible Bonds (together with all unpaid accrued interest thereon) shall be
due and payable on December 4, 2000 (the "Maturity Date"). Restated Convertible
Bond Certificates substantially in the form of Exhibits A-1 and A-2 hereto and
reflecting the modified Maturity Date will be delivered by the Company to the
Investor on the date hereof against delivery by the Investor of the original
Convertible Bond Certificates. It is understood that in no event do you intend
henceforth to grant any further extensions to the Maturity Date.
2. Prepayment. The Company has filed a registration statement on Form S-3
relating in part to 2,500,000 shares of common stock of Commodore Applied
Technologies Inc. ("CXI") held by it (the "Company Registered CXI Stock"). The
U.S. Securities and Exchange Commission (the "SEC") has reviewed and made
comments on such registration statement, and the Company believes that it has
fully and satisfactorily responded to such comments, in such a manner that it
expects the SEC to declare the registration statement effective shortly. The
Company covenants that it will do everything within its power to secure the
declaration of
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such effectiveness. The failure of the Company to procure that such registration
statement is declared effective by the SEC on or before August 3, 2000 shall be
deemed to constitute an Event of Default under the Agreement and any and all
documents relating thereto, with all the rights and remedies attendant thereto
(including without limitation the right to accelerate payment of the Convertible
Bonds at the direction of the Investor). In order to obtain the required
agreement of the Shaar Fund to the inclusion of the Company Registered CXI Stock
in such registration statement, the Company agreed by letter dated November 4,
1999 not to sell or distribute the Company Registered CXI Stock at a price of
less than US$2.00 per share for so long as the Shaar Fund has not converted at
least 75% of its Series E Convertible Preferred Stock of CXI. Consistent with
such obligations, the Company will use its best efforts, after the date hereof,
to prepay as promptly as practicable under the circumstances the
then-outstanding principal balance of all Convertible Bonds (together with all
unpaid accrued interest thereon), principally through the sale to the public of
its Company Registered CXI Stock, it being understood and agreed that the
entirety of the proceeds of such sales (after deducting reasonable brokers'
commissions) will be used exclusively to make such prepayment. Such sales will
be made at the most rapid rate and in the greatest volume as market conditions
will permit. In the event that the Company is unable to proceed to such sales in
accordance with the foregoing, it will use its best efforts to make prepayment
through other means whether by obtaining replacement financing sources, whether
through equity or debt issuances or sales, sales of assets or otherwise. The
Investor will use all reasonable efforts in due regard to its interests to
facilitate such prepayment or refinancing. The Company will keep the Investor
fully and promptly apprised of its continuing efforts to make such prepayment.
3. Delivery of Documents. Promptly upon the execution hereof, the Company shall
deliver or arrange for the issuance and delivery to the Escrow Agent (as defined
below) of signed and undated legal opinions from the Company's counsel to the
effect that the shares of the Company's common stock ("Pledged COES Common
Stock") and CXI common stock ("Pledged CXI Common Stock") pledged to the
Investor as collateral for the Company's debt (in total, 16,800,000 shares of
Pledged COES Common Stock and 6,000,000 shares of Pledged CXI Common Stock),
upon the occurrence of an Event of Default and the realization of the pledge,
will not be subject to or will be exempted from any legal restriction upon the
sale or transferability thereof by the Investor. Such opinions will be in a form
acceptable to the Investor and the Company's transfer agent such that the
transfer agent will issue, upon delivery of such opinions and the other
documentation to be held by the Escrow Agent, unlegended certificates
representing such shares in the name of the Investor or its designee, including
without limitation any purchaser of such shares from the Investor in connection
with the liquidation of the pledged shares pursuant to an Event of Default. The
Company will do all other things necessary or appropriate (including without
limitation the delivery of further documentation requested by the Investor
and/or the Escrow Agent) to facilitate and permit the unrestricted sale,
immediately upon an Event of Default, of such shares by the Investor. In
particular, but without limitation, the Company will promptly upon execution of
this Agreement deliver to the Escrow Agent a duly completed and executed
Certificate of Corporate Authorization to Transfer for each of the Pledged COES
Common Stock and the Pledged CXI Common Stock, using the form attached as
Exhibit B. All opinions of counsel contemplated hereunder or necessary to
accomplish the intent hereof will be obtained by the Company at its sole
expense.
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4. Escrow Agent. All Collateral will be held by Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
LLP, as escrow agent (the "Escrow Agent"), pursuant to the terms of an Escrow
Agreement dated as of the date hereof by and among the Company, the Investor and
the Escrow Agent substantially in the form of Exhibit C hereto, which agreement
is a restatement and amendment of the escrow agreement currently in place among
the Company, the Investor and Xxxxxx & Xxxxx LLP. Each of the Company and the
Investor agrees that the Escrow Agent shall be bound solely by the terms of the
Escrow Agreement, and each expressly acknowledges that the Escrow Agent will not
be bound by, or in any way incur any liability or have any obligations
whatsoever, under or in regard to the terms of the Agreement, including without
limitation Article IX of the Bond Purchase Agreement.
5. Expenses. The Company will pay, or promptly reimburse the Investor for, all
expenses, fees or charges of whatever nature (including, without limitation,
fees of counsel) in connection with the Investor's preparation and negotiation
of the repayment arrangements, the sale of shares of COES common stock or CXI
common stock contemplated thereby and any enforcement action or documentation
undertaken or prepared by or for the Investor in relation to the Convertible
Bonds.
6. Representations and Warranties. Each of the representations and warranties
made by the Company in the Agreement is true and correct in all material
respects as though made on and as of the date hereof with reference to
circumstances now existing. Such representations and warranties shall be deemed
to be extended to cover, mutatis mutandis, the Agreement as modified hereby and
any and all other agreements entered into in connection herewith. The Company
further represents and warrants that, except as already specifically disclosed
to the Investor, no constraint or limitation of a contractual or other nature
relating to the Company's ability to sell shares of COES common stock or CXI
common stock exists or is in effect.
7. Covenants. In addition to the affirmative covenants set forth in Part V of
the Bond Purchase Agreement, and in addition to the negative covenant set forth
in Part VI thereof which shall be deemed to apply to the Collateral, the Company
hereby covenants and agrees that, from the date hereof and until all Convertible
Bonds shall have been repaid and/or otherwise satisfied, the Company:
(a) shall not, directly or indirectly, without the prior written consent
of the Investor, agree to enter into or consummate any transaction
(including, without limitation, the sale by the Company of COES common
stock or other COES securities or CXI common stock or other CXI securities
except as specifically contemplated herein, or any constraint or
limitation thereon) which could reasonably be expected to prejudice in any
material way the value of the Collateral or the Company's ability to repay
in a timely manner amounts outstanding under the Convertible Bonds;
(b) shall make every reasonable effort to discourage any director, officer
or other related person of the Company or any affiliate thereof from
selling or otherwise transferring, or entering into any agreement to sell
or transfer, shares of COES common stock (or other COES securities) or CXI
common stock (or other CXI
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securities) owned or controlled directly or indirectly by such director,
officer or related person, except with the prior written consent of the
Investor; and
(c) shall keep the Investor fully informed on a current and timely basis
of all measures taken to pay off the entirety of its debt to the Investor
as quickly as possible.
The Company further covenants and agrees that, soon as practicable, but in no
event later than ten U.S. business days after the execution hereof by all
parties, the Company will file with the SEC a statement on Form 8-K, reasonably
acceptable to the Investor, setting forth the essential terms hereof, in a
manner consistent with disclosure obligations under U.S. securities laws.
Xx. Xxxxxxx X. Xxxx hereby covenants in his personal and individual capacity
that from the date hereof and until all Convertible Bonds have been repaid or
otherwise satisfied, and except in the case of sales or transfers the entire
proceeds of which are remitted to the Investor in repayment of the Convertible
Bonds, (1) he shall not, directly or indirectly, without the prior written
consent of the Investor, sell or otherwise transfer, or enter into any agreement
to sell or transfer, shares of COES common stock (or other COES securities) or
CXI common stock (or other CXI securities) owned or controlled directly or
indirectly by him (including, without limitation, such shares as may be owned by
members of his immediate family) and (2) he shall make every reasonable effort
to discourage any director, officer or other related person of the Company or
any affiliate thereof from selling or otherwise transferring, or entering into
any agreement to sell or transfer, shares of COES common stock (or other COES
securities) or CXI common stock (or other CXI securities) owned or controlled
directly or indirectly by such director, officer or other related person, unless
in each case the prior written consent of the Investor has been obtained.
8. No Waiver. Nothing contained herein shall be deemed to relieve the Company of
any obligation to pay principal and interest on the Convertible Bonds in
accordance with the terms thereof. It is intended that any shares of Pledged
COES Common Stock or Pledged CXI Common Stock deliverable pursuant to this
letter agreement shall constitute collateral for the repayment of the principal
and interest of the Convertible Bonds (as well as payment of any amounts due to
the Investor under paragraph 5 hereof), that such shares shall not constitute an
exclusive remedy for the collection of the principal and interest of the
Convertible Bonds, and that the Company shall remain liable for any deficiency
following any appropriate sale or other disposition of such collateral. Except
as specifically and expressly set forth herein, this letter agreement shall not
constitute or be construed as a waiver of any rights or of any default under the
terms of the Convertible Bonds or the Agreement now existing or hereafter
arising. Except as specifically set forth herein, all other terms of the
Convertible Bonds and the Agreement shall remain unchanged and in full force and
effect, and the parties hereto agree that they are fully bound by the terms of
the Agreement. For the avoidance of doubt, but without limitation, the
Convertible Bonds shall continue to bear interest which will accrue and be paid
on the terms set forth in the Convertible Bonds and the Agreement for the
extended term thereof, mutatis mutandis. In no event shall this letter agreement
be considered a novation of the obligations under the Convertible Bonds or the
Agreement.
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9. Conversion Shares. The Investor currently holds 500,000 shares of Series AAA
convertible preferred stock issued by the Company, convertible into 1,000,000
shares of its common stock. Promptly upon the request of the Investor, the
Company agrees to issue, in conversion of such securities, unlegended
certificates in the name of the Investor for the corresponding number of shares
of common stock. All expenses occasioned by such conversion, including expenses
related to the issuance of an opinion of counsel to the extent required (which
shall be arranged by the Company), shall be for the account of and paid by the
Company.
10. Further Assurances. The parties will hereafter take such further action, and
will hereafter execute and deliver such further agreements, instruments,
certificates and other documents, as may be necessary or appropriate to
implement the foregoing amendments, and to give effect to the fair intention of
this agreement.
11. Miscellaneous. This letter agreement shall not be construed against the
drafter hereof. Nothing in this letter agreement shall prohibit the Investor
from assigning this letter agreement and any right or interest in this letter
agreement to any person or entity. The Company hereby agrees that the Company's
obligations hereunder may not be assigned without the prior written consent of
the Investor. This letter agreement shall (i) be binding upon the Company, its
successors and assigns, (ii) be binding upon Bentley X. Xxxx and his successors
solely in respect of the covenants made by him in his personal and individual
capacity herein and (iii) be binding upon and inure, together with the
Investor's rights and remedies hereunder, to the Investor and its successors,
transferees and assigns. This letter agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of the
parties hereto. This letter may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and each
of the parties hereto may execute this letter by signing any such counterpart.
This letter shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of law principles
thereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign where indicated below and return an executed copy of this letter.
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Very truly yours,
COMMODORE ENVIRONMENTAL
SERVICES, INC.
By: /s/ Bentley X. Xxxx
-----------------------------
Name: Bentley X. Xxxx
Title: Chairman
AGREED TO AND ACCEPTED:
CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL
DE LA CHARENTE MARITIME DEUX SEVRES
By: /s/ X. Xxxx
-------------------------
Name: C: Xxxx
Title: Directeur General Adjoint
AGREED TO AND ACCEPTED:
/s/ Bentley X. Xxxx
---------------------------
Bentley X. Xxxx
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EXHIBIT A-1
$ 2,500,000 No. _____
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Caisse Regionale de Credit
Agricole Mutuel de la Charente Maritime Deux Sevres is the owner and holder of
8.5% Convertible Bonds of Commodore Environmental Services, Inc., a Delaware
corporation (the "Company"), in the aggregate principal amount indicated above
(the "Convertible Bonds"), which Convertible Bonds have been issued by the
Company under and pursuant to that certain Bond Purchase Agreement dated as of
December 3, 1993 by and between the Company and the Investors thereunder, as
amended by two letter agreements dated March 23, 1995, a letter agreement dated
December 2, 1998 and a letter agreement dated May [ ], 2000 (collectively, the
"Extended Bond Agreement").
This Convertible Bond Certificate restates and replaces the Convertible
Bond Certificate No. CB-01A issued December 2, 1998 pursuant to the Extended
Bond Agreement. This Convertible Bond Certificate does not represent a novation
of the debt represented by such original Convertible Bond Certificate.
Subject to the terms and conditions of the Extended Bond Agreement,
accrued interest on the outstanding principal amount of the Convertible Bonds
shall be payable quarterly in arrears on the last day of each March, June,
September and December (and upon maturity) at the rate of 8.5% per annum. The
entire principal amount of the Convertible Bonds shall be due and payable on
December 4, 2000, unless sooner called or due for prepayment in whole or in part
as and in the manner provided in the Extended Bond Agreement.
The Convertible Bonds are entitled and subject to all of the rights,
benefits and other terms and conditions of the Extended Bond Agreement,
including, but not limited to, the collateral security for the Convertible Bonds
provided therein, rights of conversion of the Convertible Bonds into shares of
common stock of the Company, certain rights to require the prepayment of the
principal and accrued interest of the Convertible Bonds upon the occurrence and
during the continuance of certain Events of Defaults as specified in the
Extended Bond Agreement, and the obligation to tender the Convertible Bonds to
the Company for redemption and prepayment under certain circumstances as
specified in the Extended Bond Agreement.
IN WITNESS WHEREOF, the Company has caused this Convertible Bond
Certificate to be executed by its duly authorized officer.
Dated: May [ ], 2000
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: ____________________________________________
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EXHIBIT A-2
$ 1,500,000 No. _____
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Caisse Regionale de Credit
Agricole Mutuel de la Charente Maritime Deux Sevres is the owner and holder of
8.5% Convertible Bonds of Commodore Environmental Services, Inc., a Delaware
corporation (the "Company"), in the aggregate principal amount indicated above
(the "Convertible Bonds"), which Convertible Bonds have been issued by the
Company under and pursuant to that certain Bond Purchase Agreement dated as of
December 3, 1993 by and between the Company and the Investors thereunder, as
amended by two letter agreements dated March 23, 1995, a letter agreement dated
December 2, 1998 and a letter agreement dated May [ ], 2000 (collectively, the
"Extended Bond Agreement").
This Convertible Bond Certificate restates and replaces the Convertible
Bond Certificate No. CB-02A issued December 2, 1998 pursuant to the Extended
Bond Agreement. This Convertible Bond Certificate does not represent a novation
of the debt represented by such original Convertible Bond Certificate.
Subject to the terms and conditions of the Extended Bond Agreement,
accrued interest on the outstanding principal amount of the Convertible Bonds
shall be payable quarterly in arrears on the last day of each March, June,
September and December (and upon maturity) at the rate of 8.5% per annum. The
entire principal amount of the Convertible Bonds shall be due and payable on
December 4, 2000, unless sooner called or due for prepayment in whole or in part
as and in the manner provided in the Extended Bond Agreement.
The Convertible Bonds are entitled and subject to all of the rights,
benefits and other terms and conditions of the Extended Bond Agreement,
including, but not limited to, the collateral security for the Convertible Bonds
provided therein, rights of conversion of the Convertible Bonds into shares of
common stock of the Company, certain rights to require the prepayment of the
principal and accrued interest of the Convertible Bonds upon the occurrence and
during the continuance of certain Events of Defaults as specified in the
Extended Bond Agreement, and the obligation to tender the Convertible Bonds to
the Company for redemption and prepayment under certain circumstances as
specified in the Extended Bond Agreement.
IN WITNESS WHEREOF, the Company has caused this Convertible Bond
Certificate to be executed by its duly authorized officer.
Dated: May [ ], 2000
COMMODORE ENVIRONMENTAL SERVICES, INC.
By:
---------------------------------------------
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EXHIBIT B
[see attached]
14
EXHIBIT C
AMENDED AND RESTATED ESCROW AGREEMENT
ENTERED INTO ON MAY 30, 2000, AMONG THE UNDERSIGNED:
COMMODORE ENVIRONMENTAL SERVICES, INC., a corporation organized and
existing under the laws of the State of Delaware (U.S.A.), with its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, U.S.A., represented by Xx. Xxxxxxx X. Xxxx, Chairman, who declares he
is duly authorized to enter into this Agreement,
(hereinafter "Commodore");
AND
CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL DE LA CHARENTE MARITIME DEUX
SEVRES, a credit institution and insurance brokerage company organized and
existing under the laws of the Republic of France, with its registered offices
at 00, xxxxxxxxx Xxxxxxx Xxxxxxx, 00000 Xxxxxxx Xxxxx, Xxxxxx, with a
registration number 399 351 810 RCS Saintes, represented by Xx. Xxxxx Xxxxxxx,
its Director of Finance and Logistics, who declares he is duly authorized to
enter into this Agreement,
(hereinafter "CADS");
AND
XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP, a limited liability partnership
organized and existing under the laws of the State of New York (U.S.A.), with
offices at 00, xxxxxx Xxxxx, 00000 Xxxxx, Xxxxxx, represented by Xx. Xxxx X.
Xxxxxxxxx, partner, who declares he is duly authorized to enter into this
Agreement,
(hereinafter the "Escrow Agent").
15
WHEREAS:
Commodore and CADS are entering on the date hereof into a letter agreement
(the "Letter Agreement") amending certain terms of a Bond Purchase Agreement
dated as of December 3, 1993 (as subsequently amended in the manner described in
the Letter Agreement) and related collateral arrangements in regard to certain
convertible bonds issued by Commodore and held by CADS as identified therein
(the "Convertible Bonds").
The letter agreement contemplates the modification and continuation of an
escrow arrangement relating to certain collateral currently held by the Escrow
Agent (the "Collateral") pursuant to the terms of an Escrow Agreement dated
December 2, 1998 among Commodore, CADS and Xxxxxx & Xxxxx LLP (which firm has
been succeeded for purposes of such Escrow Agreement by the Escrow Agent)
consisting of shares of common stock of Commodore and Commodore Applied
Technologies Inc. ("CXI") represented by share certificates with stock powers
attached.
As an accommodation to Commodore and CADS, the Escrow Agent is
willing to continue to serve in the capacity of escrow agent hereunder and hold
the Collateral pursuant to the terms and conditions of this Agreement, which
amends, restates and in all respects replaces the aforementioned Escrow
Agreement dated December 2, 1998.
IT IS NOW THEREFORE AGREED:
1. Appointment of Escrow Agent; Deposit of Collateral into Escrow Account
1.1 Commodore and CADS hereby constitute and appoint the Escrow Agent as, and
the Escrow Agent hereby agrees to assume and perform the duties of, escrow agent
under and pursuant to this Agreement.
1.2 The Collateral is currently represented by legended certificates for
16,800,000 shares of Commodore common stock and 6,000,000 shares of CXI common
stock, with stock powers attached. Pursuant to the Letter Agreement and in
accordance with the terms thereof, Commodore shall deliver promptly to the
Escrow Agent (a) signed and undated legal opinions from the Company's counsel
concerning the securities pledged as Collateral and (b) duly completed and
executed Certificates of Corporate Authorization to Transfer. Each of the
aforementioned legal opinions and Certificates of Corporate Authorization to
Transfer shall, for purposes of this Agreement, be deemed to constitute part of
the Collateral.
1.3 The Escrow Agent shall hold any and all Collateral delivered to it by each
of CADS and Commodore in a safe on its premises, and will keep proper records in
connection therewith.
2. Release of Collateral from Escrow; Termination
2.1 Upon receipt of written instructions from CADS substantially in the form of
Annex 1 hereto, the Escrow Agent shall promptly release all or a portion of the
Collateral identified in such written instructions to CADS. Further, upon the
receipt of written instructions signed by both CADS and Commodore, the Escrow
Agent shall promptly release all or a portion of the Collateral identified in
such written instructions in accordance with the terms thereof.
2.2 If the Escrow Agent does not receive written instructions pursuant to
Article 2.1 above, the Escrow Agent shall not release the Collateral in favor of
either CADS, Commodore or any other entity except pursuant to a final,
non-appealable order of a court of competent jurisdiction.
2.3 The Escrow Agent may resign and terminate its obligations hereunder by
giving thirty (30) calendar days prior notice in writing to each of CADS and
Commodore, in which case CADS and Commodore agree to issue to the Escrow Agent,
prior to the effective date of such resignation and termination, joint written
instructions for the delivery of the Collateral to another entity. The Escrow
Agent may be removed and replaced, and its duties hereunder terminated, on
thirty (30) calendar days prior notice pursuant to written instructions signed
by both CADS and Commodore indicating the entity to which the Collateral is to
be delivered.
2.4 Upon delivery of all Collateral held by the Escrow Agent in accordance with
written instructions delivered pursuant to Sections 2.1 or 2.3 or a court order
pursuant to Section 2.2, the Escrow Agent shall be fully released from and
relieved of all duties, responsibilities and obligations hereunder and in regard
to the Collateral.
3. Duties of the Escrow Agent
The duties and the obligations of the Escrow Agent hereunder and in regard
to the Collateral shall be limited to and determined solely by the provisions of
this Agreement and written instructions delivered in accordance herewith, and
the Escrow Agent is not charged with knowledge of or any duties or
responsibilities in respect of any other agreement or document. In furtherance
and not in limitation of the foregoing:
(i) the Escrow Agent shall be fully protected and rely in good faith upon
any written instructions, notice, waiver, consent, receipt or other
document free from manifest error and which the Escrow Agent believes to
be genuine and duly authorized, executed and delivered, without having to
verify the genuineness of signatures or the powers of signatories;
(ii) the Escrow Agent shall not be liable for any act done or for any
omission in connection herewith, except in the event of its willful
misconduct or gross negligence;
(iii) in the event that the Escrow Agent is, in good faith, uncertain as
to its duties or rights hereunder, it shall be entitled to refrain from
taking any action in that instance, and its sole obligation, in addition
to those of its duties hereunder as to which there is no uncertainty,
shall be to keep safely all property held as Collateral hereunder until it
shall be directed otherwise in writing by both CADS and Commodore or by a
final, non-appealable order of a court of competent jurisdiction.
4. Fees and Expenses; Indemnity
Each of Commodore and CADS agrees, as a joint and several obligation, to
pay the fees of the Escrow Agent for its services hereunder and its related
expenses as and when billed by the Escrow Agent, and to reimburse and indemnify
the Escrow Agent for, and hold it harmless against, any loss, damage, cost or
expense incurred by the Escrow Agent in connection with its performance of its
duties and obligations under this Agreement (including without limitation any
contribution or fiscal charge which the Escrow Agent may incur as a result of
holding the Collateral), as well as the reasonable costs and expenses (including
without limitation legal fees) of defending against any claim or liability
relating to this Agreement or enforcing any provision hereof; provided, however,
that neither Commodore nor CADS shall be required to indemnify the Escrow Agent
for any such loss, liability, cost or expense arising as a result of the Escrow
Agent's willful misconduct or gross negligence.
5. Miscellaneous
5.1 Notices
All instructions, notices and communications made pursuant to this
Agreement shall be made in writing and will be deemed to have been duly given
and effective upon receipt if delivered personally or by registered mail, return
receipt requested, to the following addresses:
For Commodore
to: Commodore Environmental Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
XXX
Attn: Bentley X. Xxxx
For CADS
to: Credit Agricole Deux Sevres
Direction Financiere et Comptable
4, boulevard Xxxxx Xxxxx
B.P. 8813
79028 Niort cedex 9
France
Attn: X. Xxxx and X. Xxxxxxx
For the Escrow Agent
to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
00, xxxxxx Xxxxx
00000 Xxxxx
Attn: Xxxx X. Xxxxxxxxx
or to any other address that a party may notify to the other parties in
conformity with the provisions of this Article.
5.2 Modifications, Etc.
This Agreement may be amended or modified, and any of the terms hereof
waived, only by a written instrument duly executed by or on behalf of the
parties. No waiver by any party of any term or condition contained herein, in
any one or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any future occasion.
5.3 Cooperation
Commodore and CADS shall provide to the Escrow Agent all instruments and
documents which are within their respective powers to provide and are necessary
for the Escrow Agent to perform its duties and responsibilities hereunder.
5.4 Language
This Agreement has been drafted in French and only the French text signed
by the parties shall be binding on the parties. An English translation has been
provided solely for the convenience of the parties.
5.5 Applicable Law - Jurisdiction
This Agreement shall be governed by and interpreted in accordance with
French law. The parties agree to submit all disputes which may arise in
connection with the performance or interpretation of this Agreement to the
competent court within the jurisdiction of the Court of Appeals of Paris.
5.6 Other Provisions
This Agreement is binding upon and will inure to the benefit of the
parties hereto and their respective successors and permitted assigns. The
headings used in this Agreement have been inserted for convenience of reference
only and do not define or limit the provisions hereof. This Agreement may be
executed in three or more counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement in Paris, Niort
and New York, as of the date first above written in three original copies.
COMMODORE ENVIRONMENTAL SERVICES, INC.
---------------------------
By: Bentley X. Xxxx
Title: Chairman
CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL
DE LA CHARENTE MARITIME DEUX SEVRES
---------------------------
By: Xxxxx Xxxxxxx
Title: Director of Finance and Logistics
XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP
---------------------------
By: Xx. Xxxx X. Xxxxxxxxx
Title: Partner
ANNEX 1
FORM OF WRITTEN INSTRUCTIONS
OF CADS TO THE ESCROW AGENT
TO: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
The undersigned, Caisse Regionale de Credit Agricole Mutuel de la Charente
Maritime Deux-Sevres, hereby certifies that an Event of Default has occurred (as
that terms is defined under the Bond Purchase Agreement dated December 3, 1993
and modified by, inter alia, the Letter Agreement dated May 30, 2000) and hereby
instructs you to release to [it] [name of designee] the [Collateral] [identify
relevant portion of Collateral] held by you as Escrow Agent pursuant to that
Amended and Restated Escrow Agreement dated as of May [__], 2000 among
ourselves, Commodore Environmental Services Inc. and you.
Terms used but not defined herein have the meaning assigned in the Amended
and Restated Escrow Agreement.
CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL
DE LA CHARENTE MARITIME DEUX SEVRES
--------------------------------------
Name:
Title:
Dated: ________________
