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EXHIBIT 10.2
DEEPWELL ACCESS AGREEMENT
This Deepwell Access Agreement ("Agreement") dated as of September 30,
1996 is between EMPAK Inc. ("EMPAK"), a Texas corporation and Disposal Systems,
Inc., a Delaware corporation ("DSI").
WHEREAS, pursuant to that certain Assistance Agreement among EMPAK,
Pakhoed Corporation ("Pakhoed"), a Delaware corporation, and DSI of even date
herewith ("Assistance Agreement"), EMPAK agreed to provide certain deepwell
waste disposal services to DSI on a backup basis in the event of interruption
in the operation of DSI's deepwell waste disposal facilities; and
WHEREAS, EMPAK and DSI desire to enter into this Agreement to establish
the terms and conditions upon which such services shall be provided.
NOW THEREFORE, in consideration of the mutual promises set forth herein
and other valuable consideration, the sufficiency of which is hereby
acknowledged, EMPAK and DSI agree as follows:
1. Definitions. Certain capitalized terms used herein shall have
the following meanings unless the context otherwise requires:
(i) Acceptance Criteria means:
(a) Receipt by EMPAK in Proper Form of a description of
each Waste Material for which disposal is sought in
sufficient detail (together with other analytical
data and profiling conducted by DSI) to enable
EMPAK to determine whether such Waste Material may
be accepted at the EMPAK Deepwell in compliance
with the EMPAK Permit, its waste analysis plan, or
any of its operating procedures;
(b) Receipt by EMPAK in Proper Form of a description of
any special handling instructions or indicia of
special health and/or safety considerations in
sufficient detail such that such Waste Material may
be accepted for disposal at the EMPAK Deepwell in
compliance with the EMPAK Permit, its waste
analysis plan, or any operating procedures;
(c) Receipt by EMPAK in Proper Form of a description of
any special considerations necessary for the
transportation, storage, handling, offloading, or
containerization (including, without limitation
texture, consistency and compatibility) of any
Waste Material in
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sufficient detail that EMPAK can conclude that such
Waste Material may be accepted for disposal at the
EMPAK Deepwell in compliance with the EMPAK Permit
without the incurrence of any additional
expenditure or modification of the EMPAK Deepwell,
EMPAK Permit, facility, its waste analysis plan, or
any operating procedures;
(d) Receipt by EMPAK in Proper Form of records of the
DSI customer at issue for each waste stream at
issue in sufficient detail to enable EMPAK to
determine the tolerances of compounds within each
waste stream and the likelihood that the Waste
Material at issue is within the customer's existing
profile.
(e) Receipt by EMPAK in Proper Form of documentation
sufficient to allow EMPAK to conclude that
acceptance of the Waste Material at issue will not
or will potentially not violate any term or
condition of the EMPAK Permit either based upon
acceptance of the Waste Materials proposed to be
accepted from DSI or collectively taking into
account ongoing operations at the Companies'
business facility located at 0000 Xxxxxxxxxxxx
Xxxx, Xxxx Xxxx, Xxxxx;
(f) Adequate storage as to both spacial requirements
and compatibility exists at the EMPAK Deepwell
facility to accommodate the Waste Material proposed
for disposal;
(g) Receipt by EMPAK of documentation in Proper Form
establishing:
(i) An Interruption Event has occurred;
(ii) The DSI customer(s) at issue have been
advised of the utilization of an alternate
facility and any revised timing for
disposal;
(iii) The Waste Materials at issue have been re-
manifested in accordance with all
Environmental Laws or the current manifest
denotes the EMPAK Deepwell as an
appropriately listed alternate disposal
facility.
(iv) Any approval process and/or laboratory upon
which DSI or a customer of DSI has relied
and complies with the EMPAK Permit, its
operating procedures and waste analysis
plan;
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(iv) All other aspects of treatment, storage,
management, handling, and recordkeeping of
any party involved with such Waste Materials
complies in all respects with the EMPAK
Permit, Environmental Laws, and any
operating procedure of EMPAK; and
(h) Receipt by EMPAK in Proper Form of any other
documentation or analyses reasonably required for
EMPAK to conclude that the acceptance of any such
Waste Materials at issue will not result in
liability under Environmental Laws or a violation
of the EMPAK Permit, its waste analysis plan or any
of its operating procedures.
(ii) Companies means collectively EMPAK and Pakhoed.
(iii) DSI Deepwells means the three deepwell facilities and any
ancillary structures, devices, equipment, or facilities reasonably required or
necessary for its operation to be in compliance with applicable Environmental
Laws, maintained by DSI at 0000 Xxxxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxx, and 0000
Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxxx, and permitted under permit Nos. WDW-
169, WDW-249, and WDW-70 issued by the TNRCC.
(iv) DSI Permit means collectively permit nos. WDW-169 and WDW-
249, as well as any permit application, registration, permit, permit by rule,
exemption or any other authorization necessary for the DSI Deepwells to operate
in compliance with applicable laws, including without limitation, Environmental
Laws.
(v) EMPAK Deepwell means the deepwell facility and any
ancillary structures, devices, equipment, or facilities reasonably required or
necessary for its operation to be in compliance with applicable Environmental
Laws, maintained by EMPAK at 0000 Xxxxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxx, and
permitted under permit No. WDW-157 issued by the TNRCC.
(vi) EMPAK Permit means permit No. WDW-157 in effect as of the
effective date hereof as well as any permit application, registration, permit,
permit by rule, exemption, or any other authorization necessary for the EMPAK
Deepwell to operate in compliance with applicable laws, including without
limitation, Environmental Laws.
(vii) Environmental Laws means any and all laws, rules,
regulations, ordinances, orders or guidance documents now or hereafter in
effect of any federal, state or local executive, administrative decision
relating thereto or common law that relate to (i) wetlands or other protected
land or wildlife species; (ii) noise; (iii) radioactive materials (including
naturally occurring radioactive materials); (iv) explosives; (v) pollution,
contamination, preservation, protection, remediation, removal, or clean-up of
the air, surface water, ground water, soil or wetlands; (vi) solid, gaseous or
liquid waste generation, handling, discharge, release, recycling reclamation,
threatened release, treatment, storage, disposal or transportation; (vii)
exposure or
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persons or property to hazardous substances or wastes and the effects thereof;
(viii) injury to, death of or threat to the safety or health of employees and
any other persons; (ix) the manufacture, processing, distribution in commerce,
use, treatment, storage, disposal or remediation of hazardous substances; (x)
destruction, contamination of, or the release onto any property (whether real
or personal) directly or indirectly connected with hazardous substances; (xii)
the implementation of spill prevention and/or disaster plans relating to
hazardous substances or wastes; (xii) community right-to-know and other
disclosure laws or (xiii) maintaining, disclosing or reporting information to
governmental authorities under any Environmental Law.
(viii) Force Majeure Event means in the reasonable judgment of
EMPAK the occurrence of any condition exceeding 96 hours in duration in which
the EMPAK Deepwell shall be both unable to accept and store (at one of the
Companies' storage or transfer facilities) or is materially impaired from both
accepting injection of Waste Material and legally storing (at one of the
Companies' transfer or storage facilities) any Waste Materials prior to
disposal, which it is currently authorized to accept pursuant to the EMPAK
Permit in commercial quantities by reason of (i) fire, explosion, flood, storm,
earthquake, tidal wave, war, insurrection, civil disorder, military operations,
national emergency, strike, or other labor dispute; (ii) the order,
requisition, request, recommendation, requirement of any governmental agency;
(iii) the revocation, cancellation, modification, suspension or receipt of a
notice of proposed violation, of any regulatory permit (in whole or in part),
including without limitation the EMPAK Permit, or any variance or authorization
necessary for operation of the EMPAK Deepwell in accordance with Environmental
Laws; (iv) any safety concerns regarding the EMPAK Deepwell or mechanical
malfunction (including interruption of power sources) of pumps or other
injection equipment, hole blockage or collapse, casing leakage or rupture or
other mechanical condition or failure disabling the EMPAK Deepwell or causing
safety concerns should the EMPAK Deepwell continue to be operated absent
corrective action; (v) civil or administrative suit or injunctions; or (vi) any
interruption or delay due to any cause beyond EMPAK's control, similar or
dissimilar to the causes enumerated above.
(ix) Interruption Event means in the reasonable judgment of DSI
the occurrence of any condition exceeding 96 hours in duration pursuant to
which all DSI Deepwells shall be unable to accept injection of Waste Material
which either is authorized to accept pursuant to the DSI Permit in commercial
quantities by reason of (i) fire, explosion, flood, storm, earthquake, tidal
wave, war, insurrection, civil disorder, military operations or national
emergency, (ii) any mechanical malfunction (including interruption of power
sources) of pumps or other injection equipment, hole blockage or collapse,
casing leakage or rupture or other mechanical condition or failure disabling
the DSI Deepwells, or (iii) any interruption due to any cause not attributable
in whole or in part to DSI's negligence or willful acts, but beyond DSI's
control, similar or dissimilar to the causes enumerated above. In no event
shall an Interruption Event be deemed to exist if (a) one of the DSI Deepwells
remains active and is legally able to accept injection of Waste Material or (b)
any DSI Permit shall be revoked for any reason.
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(x) Ongoing Deepwell Costs means:
(a) for each calendar year (or portion thereof) during
the term of this Agreement, the aggregate of all
costs, expenses and liabilities of every kind or
nature paid or incurred by EMPAK in connection with
owning, maintaining, and operating the EMPAK
Deepwell facility and the EMPAK Permit including,
without limitation, Taxes, Insurance Premiums, the
costs of providing or performing the following:
maintaining, cleaning, and repairing the EMPAK
Deepwell; inspecting the EMPAK Deepwell and
preparing and maintaining all legally required
records or records that a prudent business operator
would keep, lighting the EMPAK Deepwell facility
(including replacement of bulbs and ballasts and
repair of light standards); supplying water,
electricity, gas, security, laboratory, sewer
disposals or other services to the EMPAK Deepwell;
providing signage; providing traffic control;
constructing, repairing and maintaining any on-site
or off-site utilities necessary or appropriate for
its operation; wages, salaries, and benefits of
personnel performing or providing services to the
EMPAK Deepwell including without limitation legal,
consulting, expert, and engineering fees; providing
and maintaining any planting and landscaping;
providing security services; maintenance of
equipment associated with the EMPAK Deepwell and
the EMPAK Permit, including laboratory equipment;
the costs of providing insurance, financial
responsibility/assurance, including liability,
pollution, casualty and extended coverage and
including payments by EMPAK of the deductible
therefrom and costs incurred by them in obtaining
payments of insurance proceeds; costs and expenses
of inspecting and depreciation of equipment used in
the operation and maintenance of the EMPAK Deepwell
and the EMPAK Permit; plus all other costs and
expenses of every kind or nature paid or incurred
by EMPAK relative to maintaining, managing,
operating, owning, permitting and equipping the
EMPAK Deepwell.
(b) The phrase "Taxes," as used herein, shall mean all
taxes, assessments, impositions, levies, charges,
excises, fees, licenses and other sums (whether now
existing or hereafter arising, whether foreseen or
unforeseen and whether under the present system of
real estate taxation or some other system), levied,
assessed, charged or imposed by any governmental
authority or other taxing authority or which accrue
on the land (comprising the EMPAK Deepwell or
operations conducted on it) for each calendar year
(or
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portion thereof) during the term of this Agreement
associated with the EMPAK Permit and any Waste
Materials handling fees. In no event shall the
phrase "Taxes" be deemed to include any of EMPAK's
income taxes.
(c) The phrase "Insurance Premiums" shall mean the
total annual insurance premiums and costs
associated with financial responsibility/financial
assurance which accrue on all insurance, which,
from time to time, may be carried by EMPAK with
respect to the EMPAK Deepwell during any applicable
calendar year (or portion thereof) occurring during
the term of this Agreement together with any
deductible therefrom paid by EMPAK and all costs
related to realizing upon the proceeds of any such
insurance.
(xi) Proper Form means in form and substance acceptable to
EMPAK in its reasonable judgment.
(xii) Proportionate Share means an amount equal to the product
obtained by multiplying (a) the number of whole days Waste Materials for which
disposal is sought by DSI are either stored or disposed at the EMPAK Deepwell
or any of the Companies' storage or transfer facilities by (b) 1/365.
(xiii) Related Documents means this Agreement, the Assistance
Agreement, between the Companies and DSI, the Assignment and Assumption
Agreement, between the Companies and DSI each dated concurrently with this
Agreement, and any other document, instrument, or agreement relating thereto.
(xiv) TNRCC means the Texas Natural Resource Conservation
Commission and any successor organization to it.
(xv) Waste Material means hazardous and non-hazardous waste in
containerized or bulk quantities.
2. Access Fees. Subject to adjustment only pursuant to Paragraph 5,
in consideration of EMPAK's agreement to provide the limited access to the
EMPAK Deepwell as provided in this Agreement, DSI shall pay to EMPAK access
fees in the amount of $1,200,000 cash per year during the term of this
Agreement, payable in equal semi-annual installments throughout the term of
this Agreement beginning on the date six (6) months after the date hereof.
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3. Term. The term of this Agreement shall commence on the date
hereof and continue until September _____, 2001.
4. Disposal Upon Occurrence of Interruption Event. Upon the
occurrence of an Interruption Event at any time during the term of this
Agreement, DSI shall give prompt written notice ("Access Notice") thereof to
EMPAK specifying the following: (i) the nature of the Interruption Event,
described in reasonable detail; (ii) the time (no less than seven (7) business
days after EMPAK's receipt of the Access Notice) at which the delivery of the
Waste Material to EMPAK will commence; and (iii) the kind, chemical
composition, and approximate quantities of Waste Material to be delivered,
described in reasonable detail. Promptly upon receipt of an Access Notice, the
appropriate operational and technical personnel of EMPAK and DSI shall confer
regarding the quantities, flow rates, and timing of deliveries and other
logistical matters. DSI shall be responsible for arranging all tank truck and
other transport, paying all freight, insurance and other costs thereof, and
bearing all risk of loss and other liability associated therewith, in
connection with the delivery of the Waste Material to the EMPAK Deepwell.
Subject to the terms and conditions of Paragraph 6, hereof, upon transport and
delivery of such Waste Material to the EMPAK Deepwell, EMPAK shall take custody
and control thereof and dispose of the same in the EMPAK Deepwell in accordance
with the facility's standard operating procedures. The disposal of the Waste
Material by EMPAK at the request of DSI pursuant to this Agreement shall be
without charge to DSI other than the Access Fees provided in Paragraph 2 above,
its Proportionate Share pursuant to Paragraph 9 above, and DSI's payment of
expenses described in Paragraph 8 above. Promptly upon the cessation of the
Interruption Event, DSI shall cease deliveries of Waste Material to the EMPAK
Deepwell until such time as any subsequent Access Notice is duly issued
pursuant to this Paragraph 4. DSI shall use commercially reasonable and
continuous efforts to cure any Interruption Event as soon as possible.
5. Availability of EMPAK Deepwell.
(i) During the term of this Agreement, EMPAK shall use
commercially reasonable efforts to keep the EMPAK Deepwell capable of injecting
Waste Material which it is currently authorized to accept for disposal under
the EMPAK Permit; provided however, EMPAK shall not be required to accept any
Waste Material that does not meet the Acceptance Criteria for the EMPAK
Deepwell or for which procedures outlined in Paragraph 6 have not been
followed. Subject to the existence of a Force Majeure Event, in the event that
any condition shall exist that would result in EMPAK's inability to dispose of
or accept for storage (at one of the Companies' storage or transfer facilities)
Waste Material at the EMPAK Deepwell (the acceptance and disposal of which
would not result in violation of the EMPAK Permit) within legally permissible
time periods under Environmental Laws, and such condition exists for more than
ninety (90) days, the semi-annual access fees next payable by DSI to EMPAK
shall be reduced by an amount equal to the product obtained by multiplying (a)
the number of whole days during which such unexcused condition exists beyond 90
days by (b) $3,287.67. EMPAK shall give DSI prompt notice of the commencement
and cessation of any such condition. Any reduction in the semi-annual access
fees
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required pursuant to this Paragraph 5(i) shall have no effect on any succeeding
access payments due and owing EMPAK by DSI.
(ii) A Force Majeure Event shall suspend EMPAK's performance
for the duration of the condition giving rise to the Force Majeure Event, but
shall not result in any reduction in the Access Fees payable by DSI pursuant to
Paragraph 2 above.
6. Procedure for Acceptance of Waste Materials. Subject to the
terms and conditions of Paragraph 7, in no event shall EMPAK be obligated to
accept any Waste Material for disposal at the EMPAK Deepwell originally
intended for disposal at a DSI Deepwell unless and until the following
conditions are satisfied:
(i) All Acceptance Criteria shall have been satisfied at least
five (5) days prior to delivery of such Waste Materials to the EMPAK Deepwell
or other storage/transfer facility authorized by EMPAK;
(ii) An Interruption Event shall have occurred;
(iii) EMPAK shall be satisfied in its reasonable discretion as
to the nature, source, and composition of such Waste Material and have had a
reasonable opportunity, not to exceed five (5) days, to (a) review all records
associated with the generation, management and transportation of such Waste
Material including any analytical data, and profiling of such conducted at or
in connection with the DSI Facility and (b) conduct independent analyses and
profiling of the Waste Materials as is reasonably necessary for EMPAK to
conclude that such materials may be accepted at the EMPAK Deepwell in
accordance with the EMPAK Permit and will not result in a violation or
potential violation of the EMPAK Permit; and
(iv) EMPAK shall have received from DSI a signed statement in
the form attached as Exhibit A pertaining to each shipment of Waste Materials
and/or waste stream.
(v) Subject to the terms and conditions of the EMPAK Permit,
EMPAK's waste analysis plan and operating procedures, the total volume of Waste
Materials for which DSI has requested disposal does not exceed one hundred
twenty (120) million gallons annually, on a prorated basis.
7. Rejection of Waste Materials. Notwithstanding anything to the
contrary in this Agreement, EMPAK shall have the right in its sole and absolute
discretion to decline the acceptance of any Waste Materials which in its
reasonable judgment could or is reasonably likely to be or lead to potential
allegations of or notices of violation relating to a violation of Environmental
Laws, or a claim of liability under Environmental Laws including without
limitation those pertaining to nuisance associated with air emissions, or
personal injury by third parties.
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8. Allocation of Ongoing Expenditures.
In the event DSI seeks to dispose or store Waste Material at the
EMPAK Deepwell or any other EMPAK storage or transfer facility under this
Agreement, then EMPAK and DSI agree that costs associated with the ongoing
operation of the EMPAK Deepwell will be allocated as follows:
a. DSI shall bear all cost and expense as reasonably
determined by EMPAK for additional personnel in addition to EMPAK's then
standard number of personnel at the EMPAK Deepwell to handle and dispose of
Waste Materials. Such costs may be attributable to temporary personnel or
individuals employed by EMPAK that are not typically assigned to the EMPAK
Deepwell.
b. DSI shall bear its Proportionate Share of all cost,
expense, and liability associated with any (i) capital expenditures necessary
to maintain the EMPAK Deepwell and EMPAK Permit and (ii) all other, capital
costs, and other costs and expenses associated with maintaining and assuring
that the EMPAK Deepwell is in compliance with all applicable Environmental Laws
during the term of this Agreement.
c. Except where attributable to the gross negligence or
willful misconduct by EMPAK or Pakhoed, DSI shall bear its Proportionate Share
of all costs, expenses, and liability associated with any fines or penalties
attributable in whole or in part to any activities occurring in, at, or around
the EMPAK Deepwell or under the EMPAK Permit.
d. DSI shall pay its Proportionate Share of EMPAK's Ongoing
Deepwell Costs.
9. Payment of DSI's Proportionate Share. Within ninety (90) days
after the end of each calendar year during which Waste Materials
are disposed at the EMPAK Deepwell or stored at any EMPAK
facility during the term hereof EMPAK shall furnish to DSI a
statement ("Statement") in reasonable detail setting forth the
computation of the actual Taxes, maintenance costs, Insurance
Premiums and other Ongoing Deepwell Costs for the preceding year
(the "Actual Costs"). In no event shall EMPAK's failure to
timely provide the Statement impair or otherwise operate to
modify DSI's obligation to pay its Proportionate Share. DSI
shall pay to EMPAK a sum of money equal to its Proportionate
Share of the Ongoing Deepwell Costs within thirty (30) days after
its receipt of the Statement. These obligations shall survive
the expiration or termination of this Agreement.
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10. Events of Default.
a. If any of the following events occur, EMPAK shall have the
right to unilaterally suspend its performance under this
Agreement upon written notification to DSI and DSI's
failure to cure within thirty (30) for nonmonetary
defaults and fifteen (15) days for those defaults that can
be cured by a liquidated sum of money:
(i) Failure by DSI to make timely any payment to EMPAK
or Pakhoed due hereunder.
(ii) Failure by DSI to materially perform any covenant
(other than payment obligations), it is obligated
to perform under this Agreement.
(iii) Any statement, representation, or warranty made by
DSI under this Agreement shall be materially false
or misleading;
(iv) Any investigation shall be commenced of which DSI
has actual knowledge pertaining to Waste Materials
or waste streams that have been accepted for
disposal at a DSI Deepwell and for which DSI seeks
or has sought the services of EMPAK under this
Agreement pursuant to which DSI or any customer of
DSI whose Waste Materials have been disposed or
scheduled to be disposed at the EMPAK Deepwell are
(a) accused of criminal violations under applicable
Environmental Laws; or (b) alleged to be arranging
for disposal of Waste Materials that are not of the
nature as documented by DSI or its customer.
b. Upon the occurrence of any Event of Default under this
Agreement EMPAK may at its sole option pursue any one or
more of the following remedies without any notice or
demand and without limiting the generality of the
foregoing DSI hereby specifically waives notice and demand
for the failure of any obligation it may have hereunder
and waives any and all notice or demand requirements
imposed by any applicable law:
(i) Suspend its performance under this Agreement
whereupon EMPAK may (a) seek to recover any damages
available to it at law or in equity and (b)
exercise any and all other remedies available to
EMPAK under this Agreement, or at law, or in
equity.
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(ii) It is expressly understood and agreed that EMPAK
shall to the full extent permitted by applicable
law, have no obligation and DSI hereby releases
EMPAK from any obligation, to mitigate damages.
11. Independent Knowledge Obtained.
DSI acknowledges and agrees that the Companies have made no
representation, warranty, or agreement as to the nature or volume of Waste
Materials that may be accepted at the EMPAK Deepwell at any given time.
Moreover, the Companies have made no representation, warranty, or agreement
concerning the time period within which Waste Materials proposed for disposal
by DSI may be processed at the EMPAK Deepwell. DSI agrees (i) that it has made
its own independent judgment as to whether the EMPAK Deepwell may accept waste
from DSI for disposal; (ii) that it has reviewed the EMPAK Permit, EMPAK
Deepwell facility records, and any necessary federal, state, or local laws,
rules, or agency files necessary to determine the economic viability of the
utilization of the EMPAK Deepwell for a back-up disposal facility; and (iii)
that other factors over which the Companies have no control may determine
whether Waste Materials may be disposed at the EMPAK Deepwell.
12. Indemnity. DSI hereby agrees unconditionally, absolutely and
irrevocably to indemnify, defend and hold harmless each of the Companies from
and against any loss, cost, expense, liability, or claim which at any time or
from time to time may be claimed, suffered or occurred in connection with any
violation or alleged violation of Environmental Law by any governmental
authority or any other person, or claim for personal injury, the breach of any
representation or warranty of DSI set forth herein or the failure of DSI to
perform any obligation herein required to be performed by DSI. DSI expressly
agrees to indemnify the Companies for any claim, demand, cause of action, suit,
lost cost damage, punitive damage, fine, penalty, expense, liability, strict
liability, criminal liability, judgment, governmental or private investigation
relating to compliance with requirements of Environmental Laws, personal injury
suit or property damage whether threatened, sought, brought, or imposed that is
related to or seeks to recover costs, damages, expenses, or fees, arising or
occurring in whole or in part, after the execution of this Agreement and during
any Interruption Event at which time any Waste Materials are treated, stored or
disposed at the EMPAK Deepwell facility or any other storage or transfer
facility of the Companies as a result of an Interruption Event.
EFFECT OF NEGLIGENCE. DSI SHALL INDEMNIFY THE COMPANIES
REGARDLESS OF WHETHER THE ACT, OMISSION, FACT, CIRCUMSTANCES OR CONDITIONS
GIVING RISE TO SUCH INDEMNIFICATION WERE CAUSED IN WHOLE OR IN PART BY EITHER
COMPANY'S SIMPLE (BUT NOT GROSS) NEGLIGENCE.
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13. Notices. Any notice, request or other communication given
pursuant to this Agreement shall be given in the manner provided in the
Assistance Agreement; provided, however, that any Access Notice shall be
delivered by hand delivery.
14. Miscellaneous.
(i) This Agreement is not assignable by any party without the
prior written consent of the other.
(ii) This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements or undertakings, oral or written, with respect to the subject matter
hereof.
(iii) No amendment, modification or waiver of all or part of
this Agreement shall be of any force or effect unless in writing and signed by
authorized representatives of the parties hereto.
(iv) This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas.
(v) The captions in this Agreement are for convenience of
reference only and shall be given no effect in the construction hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective representatives thereunto duly authorized as of
the date first set forth above.
EMPAK Inc.
By:
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Xxxx X. Xxxxxx,
Senior Vice President
Disposal Systems, Inc.
By:
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Xxxx X Xxxx, Xx.,
President and Chief Executive Officer
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Pakhoed Corporation joins herein solely to evidence its consent to the terms of
this Agreement to the extent necessary under any applicable law.
Pakhoed Corporation
By:
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Xxxx X. Xxxxxx,
Senior Vice President
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GUARANTY
In consideration of the transactions contemplated by the foregoing
Deepwell Access Agreement (which the Board of Directors of The GNI Group, Inc.,
has determined may reasonably be expected to benefit, directly or indirectly,
The GNI Group, Inc.), The GNI Group, Inc., hereby absolutely, unconditionally
and irrevocably guarantees the full and timely payment by Disposal Systems,
Inc., of all access fees due and owing pursuant to Section 2 thereof. On any
default by Disposal Systems, Inc. in the payment of such fees, EMPAK, Inc. may,
at its option, proceed directly and at once against The GNI Group, Inc. to
enforce its obligations under this unconditional guaranty, without the
necessity of proceeding or taking any action against Disposal Systems, Inc.
The amendment or any other change to the Deepwell Access Agreement or any
party's waiver or failure to enforce any provision of it shall have no effect
on the GNI Group, Inc.'s obligation hereunder which shall remain absolute.
The GNI Group, Inc.
By:
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Xxxx X Xxxx, Xx.
President and Chief Executive Officer
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EXHIBIT A
COUNTY OF XXXXXX )
)
STATE OF TEXAS )
AFFIDAVIT
BEFORE ME, the undersigned notary public, personally appeared
____________________ who, after being by me duly sworn, did depose and state
the following under oath:
My name is ___________________, and I am the _______________________ of
Disposal Systems, Inc. ("DSI"). I have personal knowledge of the facts
concerning hazardous and solid waste materials managed by DSI at its
deepwell facilities. With regard to the waste streams described on the
attachment to this Affidavit, I am aware of no fact or circumstance
which could render any record retained by DSI or furnished to EMPAK Inc.
in connection with such waste stream false or misleading in any regard.
Moreover, I have no knowledge of any tampering with the waste streams at
issue nor do I have any reason to believe that the waste stream is not
from the source or of the nature or characteristic identified by the
generator prior to its acceptance for disposal by DSI. Moreover, I am
aware of no civil, criminal, or administrative investigation into the
affairs of the generator of the specific waste materials.
Further Affiant sayeth not.
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SUBSCRIBED AND SWORN TO BEFORE ME, on the ____ day of _______________,
1996, to certify which witness my hand and official seal.
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NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
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