EXHIBIT 10.19
EQUIPMENT LEASE
This Agreement is made as of the 25th day of November, 1997, 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 landfill leachate and
separate and/or remove from the landfill 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 landfill 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 Intellectual Property, when combined with certain
nonproprietary 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
landfill leachate;
WHEREAS, MES operates leachate treatment facilities ("Leachate
Treatment Facilities") at the Xxxxxxx Point Hazardous Waste Treatment Facility
at the Port of Baltimore, Maryland ("Xxxxxxx Point") at which it must, inter
alia remove total chromium from landfill leachate before discharging the
landfill 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 Two Hundred Fifty Thousand Dollars ($250,000.00) (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 Xxxxxxx Point, to make all necessary electrical and plumbing
connections from a building (the "Building") to be erected by MES at Xxxxxxx
Point (the "Building") to the Equipment, and 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 follow: (i) 25% of the Initial Lease Price, or Sixty-Two Thousand Five
Hundred Dollars ($62,500.00), 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 Twenty-Five Thousand Dollars ($125,000.00)
within ten (10) days of delivery to MES and installation of the Equipment at
Xxxxxxx Point and (iii) the balance of the Initial Lease Price, i.e., twenty
five percent (25%) or Sixty Two Thousand Five Hundred Dollars ($62,500.00)
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 14,000 gallons of landfill 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 Xxxxxxx
Point.
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. 97-03-44R
(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 Xxxxxxx Point
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
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difference between the gross sales price of the residual chromium and Residual
Chromium Sales Costs (as 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 landfill 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 Limitations 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'
Xxxxxxx Point Leachate Treatment Facilities and for no other purpose whatsoever,
and (ii) strictly in accord with the License Agreement. Provided, however, that
subject to the terms of this Agreement and the License Agreement, MES may
process landfill leachate or leachate generated from materials placed at Xxxxxxx
Point by or on behalf of Allied Signal Corporation through the Equipment for the
purpose of separating and/or removing chromium.
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 Xxxxxxx Point 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 Xxxxxxx Point volume of landfill leachate
and the concentrations of total chromium contained therein, the pH, temperature
of the landfill 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 Xxxxxxx Point Leachate Treatment Facilities,
to-wit, MES has represented and hereby represents that it intends to process a
maximum daily volume of 7,000 gallons of landfill leachate which will have a
maximum concentration of 700 parts per million (ppm) of total chromium and 600
ppm of
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chromium VI; MES further has represented that the landfill 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 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
Xxxxxxx Point, 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 Two Hundred Fifty Thousand Dollars ($250,000.00).
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
landfill 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 Xxxxxxx Point Leachate Treatment Facilities for
chromium VI and total chromium, that is a maximum daily average of 0.1 ppm for
chromium 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 cartridge, 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
that when properly maintained and used as intended, and when processing leachate
which falls within the parameters of the Leachate Representations, the Equipment
will be free of defects in workmanship or materials for a period of one (1) year
from the Commissioning Date. After the one (1) year warranty period, Commodore
will transfer the manufacturers' warranties for all non-Commodore parts and
materials, if any, to the extent it is able. All other warranties not expressly
made in this section or elsewhere in this Agreement are hereby disclaimed.
Except as otherwise set forth in this Agreement, Commodore shall not be liable,
and MES hereby acknowledges and agrees that Commodore shall not be liable for
any incidental or consequential damages of any type whatsoever.
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B. By MES
5.5 Leachate Parameters. MES hereby represents and warrants that all
Xxxxxxx Point Leachate Treatment Facilities such as landfi11 leachate entering
Commodore's Equipment for processing will have the following characteristics:
(i) volume not to exceed 7,000 gpd; (ii) total chromium not to exceed 700 ppm;
(iii) chromium VI not to exceed 600 ppm; (iv) pH between 12.0 and 13.5, (v)
temperature between 45 degrees F and 100 degrees F and (vi) 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 Xxxxxxx Point, 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 Xxxxxxx Point. 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 $1,890.00 per
gallon for each gallon of solution placed in the Equipment, not to exceed
$19,375.00 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
property 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 landfill 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 Xxxxxxx Point Leachate Treatment Facilities a building, the Equipment, 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 Environmental 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
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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 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 Xxxxxxx Point. To the extent permitted by law, MES
agrees to allow Commodore access to Xxxxxxx Point for the sole purpose of
showing third parties the Equipment in operation. In order to enter Xxxxxxx
Point, Commodore must first provide to MES the name of each individual for whom
permission to enter is sought, along with the individuals' address, business
affiliation, and such other information as MES may reasonably request.
Commodore and its party may not enter Xxxxxxx Point until MES first provides
permission, which permission shall not be unreasonably denied. MES may require
that all persons entering Xxxxxxx Point 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 Xxxxxxx Point.
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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 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, institute 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 Xxxxxxx Point 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 25th day of November, 1997.
Attest: Commodore Separation Technologies, Inc.
/s/ Xxxxx XxXxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------------
Xxxxx XxXxxxxxx Xxxxxxx X. Xxxxx
Title: Sr. V.P Sales & Marketing Title: President and C.O.O.
Witness: Maryland Environmental Service
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxx
----------------------------- --------------------------------
Xxxxx X. Xxxx
Title: Director
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