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Exhibit 10.1
TERMINATION AND WAIVER OF CLAIMS
WHEREAS, NEI of Pennsylvania, Inc., as Buyer ("NEI or Buyer") and NYTEST
Environmental Inc., its parent corporation ("NYTEST"), entered into a contract
with BCM Engineers Inc., a Pennsylvania corporation ("BCM") and Xxxxx
Technology Corporation ("XXXXX") to the extent set forth in Section 7, for the
purchase of certain assets and the assumption by NEI of certain leases and
liabilities dated August 3, 1995, (the "Asset Agreement"), and
WHEREAS, NEI, pursuant to the Asset Agreement, entered into a sublease dated
August 3, 1995, of a portion of the improved real property leased by BCM from
the Gravers Company at 0000 Xxxxxxx Xxxx xx Xxxxxxxxxx, Xxxxxxxxxxxx, commonly
referred to as the Laboratory Site (the "Sublease"), and
WHEREAS, NEI entered into two subleases dated August 3, 1995, of personal
property wherein NEI assumed the obligations of the lease of personal property
supplied through Fidelcor Services Inc. (the "Fidelcor Sublease"), and for
personal property obtained through Tokai Financial Services, Inc. (the "Tokai
Sublease"), and
WHEREAS, various disputes as to the rights and obligations of BCM and Xxxxx
Technology Corporation ("Xxxxx"), NEI and NYTEST have arisen and the parties
desire to resolve such disputes, NOW THEREFORE, the parties enter into this
agreement (the "Termination Agreement") as follows:
1. Termination of Sublease
The parties agree that the Sublease is terminated effective February 28,
1997, and that NEI and NYTEST forego and waive all claims of any right,
title, or interest in and to all fixtures, equipment, improvements,
installations, and the appurtenances in each case attached to the sublet
premises at commencement of the Sublease or which may have been attached
during the term thereof. The costs, removal and disposal of regulated waste
will be deducted from the amount due under paragraph 5.
2. Termination of Fidelcor Sublease and Tokai Sublease
The parties agree that the Fidelcor Sublease and the Tokai Sublease
including all future sublease obligations are terminated effective February
28, 1997, with no continuing obligation as between the parties. XXX agrees
that it is, as of March 10, 1997, in possession of all personal property and
equipment to which it is entitled under the terms of the Asset Agreement.
NEI and NYTEST waive any right or interest in and to any other property or
equipment or proceeds of equipment leased or which may have been acquired
under the terms of the Fidelcor Sublease and Tokai Sublease.
3. NEI and NYTEST further agree that they waive all interest and any claim of
title in and to the assets described in paragraph 1.1c of the Asset
Agreement which remain at the Lab Site as of the date of this Agreement.
4. Credits and Offsets
BCM, NEI and NYTEST acknowledge that BCM has received laboratory services
from NEI and its affiliated laboratories and that BCM has offset amounts
owed by BCM and Xxxxx for laboratory services and NEI, NYTEST and its
affiliates have received credit for the amount of such offsets
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against amounts owed by NEI to BCM pursuant to the terms of the Asset
Agreement. The amount of such offset and credit is set forth as follows:
Invoices for Services through February 28, 1997
Xxxxxx Chromate (the "Project") $692,847
Other Services 589,963
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Total for Services through February 28, 1997 $1,282,810
Less BCM Payments 108,466
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Balance for Services as of February 28, 1997 $1,174,344
Less Amounts due (offset) from NEI per
Asset Agreement through May 31, 1996 $ 493,262
Amount Due NEI $ 681,082
5. Survivability of Claim
Notwithstanding the reciprocal waiver and release of claims by the parties
contained herein, the parties acknowledge that NYTEST has continued to
perform laboratory services for BCM at its request related to the Xxxxxx
County Chromate Chemical Production Waste Site project (the "Project"). BCM
agrees that it will continue to use NYTEST as XXX's successor for laboratory
services at the Project on the basis of the contract for Laboratory Services
dated September 14, 1995, between BCM, NYTEST and NEI, subject to the
continued approval of the New Jersey Department of Environmental Protection
(NJDEP) to use NEI or NYTEST.
The parties agree that NYTEST's and NEI's total amounts billed for services
identified in Section 4 above includes $692,847 relating to the Project and
performed prior to February 28, 1997. This obligation is subject to NJDEP's
approval and acceptance of NYTEST's analytical work, holding periods, and
acknowledgment that the laboratory services are in compliance with the
requirements of the NJDEP.
NYTEST accepts $681,082 as identified in Section 4 above in complete
satisfaction of amounts due for services rendered to February 28, 1997, and
acknowledges that NYTEST shall be subject to backcharge for the amount of any
services rejected by NJDEP due to actions or omissions by NYTEST and the cost
of resampling and reperformance incurred as a result of such rejection. Any
such backcharge shall be deducted from amounts due for future services and
the retainage.
BCM and XXXXX shall pay the balance due in installments on the dates set
forth below:
Installment Payment
Amount Date
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$681,082 a payment schedule to be
mutually agreed upon by both
parties is anticipated to be
completed by April 18, 1997
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6. Waiver of Claims
a. Waiver of NEI and NYTEST. For and in consideration of the promises
and covenants set forth in this Termination Agreement, NYTEST and
NEI, their successors, assigns and any and all persons claiming by,
through or under them, hereby release and forever discharge BCM and
its parent, subsidiaries, affiliates, predecessors, successors,
related entities, directors, employees, agents, attorneys, and all
persons acting by and through, under or in concert with them, or any
of them, of and from any and all claims, demands, claims for relief,
obligations, rights, and/or liabilities of any nature, whether
anticipated or unanticipated, known or unknown, fixed or contingent,
past or present (hereinafter referred to as "Claims"), which NYTEST
and NEI now have or may hereafter have against BCM and its parent,
subsidiaries, affiliates, predecessors, successors, related entities,
insurers and assigns, as well as its past and present officers,
directors, employees, agents, attorneys, and all persons acting by
and through, under or in concert with them, or any of them, by reason
of any matter, cause or thing arising out of, based upon, or relating
to the Asset Agreement and as amended by Xxxxx letter dated August
22, 1996.
b. Waiver of BCM. For and in consideration of the promises and covenants
set forth in this Termination Agreement, BCM, its successors, assigns
and any and all persons claiming through or under it, hereby releases
and forever discharges NYTEST and NEI and its parents, subsidiaries,
affiliates, predecessors, successors, related entities, directors,
employees, agents, attorneys, and all persons acting by and through,
under or in concert with them, or any of them, of and from any and
all claims, demands, claims for relief, obligations, rights, and/or
liabilities of any nature, whether anticipated or unanticipated,
known or unknown, fixed or contingent, past or present (hereinafter
referred to as "Claims"), which BCM now has or may hereafter have
against NYTEST or NEI and its respective parent, subsidiaries,
affiliates, predecessors, successors, related entities, insurers and
assigns, as well as its past and present officers, directors,
employees, agents, attorneys, and all persons acting by and through,
under or in concert with them, or any of them, by reason of any
matter, cause or thing arising out of, based upon, or relating to the
Asset Agreement and as amended by Xxxxx letter dated August 22, 1996.
c. Non-Admission of Liability. This Termination Agreement and the
releases and other terms provided for herein are made, executed,
given and accepted as a part of a compromise and resolution of
disputed claims. No provision(s) of the Termination Agreement, nor
the parties hereto, shall be construed or deemed to be evidence of an
admission of any fact, matter, thing or liability of any kind to any
other party. Each of the parties hereto denies any liability of any
kind to the other party for any purpose, and this Termination
Agreement is made solely and entirely as a compromise and for the
purpose of fully and finally resolving the disputed matters referred
to herein. Neither the Termination Agreement nor any term thereof
shall be offered or received as evidence in any proceeding in any
forum as an admission of any liability or wrongdoing on the part of
any of the parties hereto.
d. No Assignment. Each party represents and warrants that there has been
no assignment or other transfer to any other person, firm or
corporation in any manner, including by way of subrogation or
operation of law or otherwise, of all or any portion of any claim,
demand, right, action or claim for relief that it had, has or might
have arising out of the matters released in the Termination
Agreement, nor of all or any portion of any claim, suit, recovery or
settlement to which it may be entitled. In the event that any claim,
demand or suit should be made or instituted against a party because
of any such purported assignment, subrogation or transfer, each party
agrees to indemnify and hold the other party harmless against such
claims, demand, or suit, together with any costs,
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expenses and attorneys' fees incurred by the other party as a result of
any person's assertion of any such assignment or transfer.
7. Xxxxx Technology corporation has entered into this Agreement solely for the
purpose of participating as a party to the extent of the waiver of claims
provided the parties herein and for the purpose of acknowledging the offsets
and credits agreed to herein and to the extent of guarantee agreements as
provided in Article 5.16 of the Asset Agreement.
This Agreement is effective as of the date of the last party to sign.
Date: 4/19/97 NEI OF PENNSYLVANIA, INC.
By: /s/ Xxxx Xxxxxxx
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Its: President
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Date: 4/14/97 NYTEST ENVIRONMENTAL INC.
By: /s/ Xxxx Xxxxxxx
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Its: President & CEO
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Date: 4/11/97 BCM ENGINEERS INC.
By: /s/ Xxxxxx Xxxxxxx
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Its: Vice President
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Date: 4/11/97 XXXXX TECHNOLOGY CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Its: Vice President
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