EXHIBIT 10.1
SETTLEMENT AGREEMENT
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This settlement agreement (this "Agreement") is entered into this 21st
day of January, 2000, by and among Deere Park Capital, L.L.C. ("Deere Park ").
American Eco Corporation ("AEC") and U.S. Industrial Services, Inc. ("USIS").
RECITALS
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A. On or about November 9, 0000, Xxxxx Xxxx loaned S3 million to
UKStar, Inc. and AEC guaranteed UKStar's indebtedness under this loan.
B. On or about October 2, 0000, Xxxxx Xxxx loaned $750.000 to
Midatlantic Recycling Technologies, Inc. ("MART") and AEC guaranteed MART's
indebtedness under this loan.
C. On or about March 18, 1998, Deere Park and AEC restructured AEC's
obligations to Deere Park by entering into a Restructuring Agreement and Demand
Note in favor of Deere Park. The Restructuring Agreement, the Demand Note and
the guaranties related to such documents are collectively referred to herein as
the "Loan Documents".
D. On or about August 18, 1999, Deere Park tiled a complaint in the
United States District Court for the Northern District of Illinois, Eastern
Division (the "Court"). under the caption Deere Park Capital, L.L.C. v. American
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Eco Corporation, case number 99 C 5408 (the "Litigation").
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E. In the Litigation, Deere Park asserted claims against AEC for
default and failure to pay under the above-mentioned guarantees, the
Restructuring Agreement and the Demand Note. AEC contends that it has defenses
to the Litigation.
F. Deere Park and AEC now desire to settle anti compromise these
claims and defenses in order to forgo the costs and risks of litigation.
G. AEC owns 7,175,858 shares of the outstanding capital stock of
USIS.
PROVISIONS
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In consideration of the foregoing Recitals, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. RECITALS. The Recitals above are incorporated as though fully set
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forth herein.
2. STIPULATION OF JUDGMENT. Concurrent with the execution of this
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Agreement. AEC shall execute and deliver to Deere Park a copy of the Stipulation
of Judgment (attached hereto as Exhibit A) (the "Stipulation") against AEC and
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in favor of Deere Park in the amount of $2,842,235 in U.S. currency. Deere Park
shall cause the Stipulation to be entered by the Court in the Litigation only
upon an Event of Default, as defined herein. Prior to any motion for entry of
the Stipulation on or before May 15, 2000, Deere Park shall give AEC at least
two (2) business days notice of said motion, and any such motion shall be
subject to any defenses raised by AEC so long as they are related to the terms
and provisions of this Agreement; however, AEC expressly waives any defenses
based on sufficient legal consideration for this Agreement.
3. CERTAIN FEES. Concurrent with the execution of this Agreement,
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AEC shall pay Deere Park $35,000 in U.S. currency for legal fees incurred to
date by Deere Park in seeking to enforce its claims in the Litigation.
4. CONTINUANCE. Immediately after execution of this Agreement, the
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parties shall jointly request that the Court enter and continue all aspects of
the Litigation until the next status conference to be conducted on the most
convenient date for the Court occurring after May 16, 2000.
5. PAYMENT. On or before May 15, 2000, AEC shall pay to LaSalle Bank
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National Association (the "Escrow Agent") for the benefit of Deere Park
$2,807,235 in U.S. currency in good funds as consideration for the settlement of
Deere Park's claims under the Loan Documents. In the event that AEC pays to
Escrow Agent for the benefit of Deere Park $2,807,235 and complies with all
terms of this Agreement. Deere Park shall dismiss the Litigation with prejudice
95 days after payment in full and if no bankruptcy is pending against AEC or
USIS.
6. SECURITY INTEREST. As security for the timely fulfillment and
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performance of each and every obligation hereunder, AEC pledges, transfers and
assigns to Escrow Agent for the benefit of Deere Park and grants to Escrow Agent
for the benefit of Deere Park a lien on and security interest in, the following
collateral. whether now owned or hereafter acquired, howsoever AEC's interest
therein may arise or appear (whether beneficially or of record and whether by
ownership, security interest, claim or otherwise:):
a. all of AEC's entire right, title and interest in and to
the 7,175,858 shares of common stock of USIS (collectively, the
"Pledged Securities"), which constitutes all of the securities of USIS
held by AEC, and all substitutions therefor and replacements thereof,
all proceeds and products thereof and all rights related thereto,
including, without limitation, the certificates representing the
Pledged Securities, the right to request that the Pledged Securities
be registered in the name of Deere Park or any of its nominees after
an Event of Default, all warrants, options, share appreciation rights
and other rights, contractual or otherwise, in respect thereof and of
all dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
addition to, in substitution of, on account of or in exchange for any
or all of the Pledged Securities;
b. any other shares of USIS from time to time acquired by
AEC in any manner, the certificates or other instruments representing
such shares, all options, warrants, share appreciation rights and
other rights, contractual or otherwise, in respect thereof and all
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dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in
addition to, in substitution of. on account of, or in exchange for any
and all of such shares; and
c. all proceeds of any and all of the foregoing,
7. DELIVERY OF CERTIFICATES. Concurrently with the execution of this
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Agreement, AEC shall deliver all certificates and instruments currently
representing the Pledged Securities to Escrow Agent (who shall hold such Pledged
Securities for the benefit of Deere Park) accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
satisfactory to Deere Park. All other certificates and instruments constituting,
the Pledged Securities from time to time shall be delivered to Escrow Agent
promptly upon the receipt thereof by or on behalf of AEC. All such certificates
and instruments shall be held by Escrow Agent pursuant to an escrow agreement in
the form set forth as Exhibit D (the "Escrow Agreement") and shall be
accompanied by duly executed instruments of transfer or assignments in blank,
all in form and substance satisfactory to Deere Park.
8. ADDITIONAL SECURITY. As additional security for the prompt
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satisfaction of the obligations herein, AEC hereby pledges, transfers and
assigns to Escrow Agent for the benefit of Deere Park and hereby grants a lien
to Escrow Agent for the benefit of Deere Park in all proceeds and payments
payable by USIS to AEC, including without limitation $1,000,000, payable by USIS
to AEC as accrued and unpaid management fees (the "USIS Collateral"). USIS
agrees to pay the USIS Collateral directly to Escrow Agent for the benefit of
Deere Park. As used herein, the Pledged Securities and the USIS Collateral shall
be referred to collectively as (the "Pledged Collateral").
9. DIVIDENDS. Unless an Event of Default shall have occurred and be
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continuing, AEC shall be entitled to receive for its own use cash dividends on
the Pledged Securities paid out of earned surplus of USIS. Upon the occurrence
of an Event of Default, Deere Park may require any such cash dividends to be
delivered to the Escrow Agent as additional security hereunder or applied toward
the satisfaction of the obligations hereunder. Furthermore, provided that there
is no Event of Default during the term of this Agreement, AEC shall be entitled
to receive all payments due with respect to the USIS Collateral. Upon the
occurrence of an Event of Default, Deere Park shall be entitled to require that
all payments due with respect to the USIS Collateral be made directly to Deere
Park.
10. VOTING RIGHTS. So long as no Event of Default shall have occurred
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and be continuing, AEC shall be entitled to vote or consent with respect to the
Pledged Securities in any manner not inconsistent with this Agreement. Upon the
occurrence and during the continuance of an Event of Default, all rights of the
AEC to vote, consent and exercise voting and other consensual rights with
respect to the Pledged Securities shall, immediately become vested in Deere Park
which shall thereupon have the sole right to exercise such rights. AEC hereby
grants to Deere Park an irrevocable proxy to vote, consent and exercise voting
and other consensual rights with respect to the Pledged Securities upon the
occurrence and during the continuance of an Event of Default, which proxy shall
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be effective immediately and shall be deemed coupled with an interest.
11. REPRESENTATIONS AND WARRANTIES. AEC and USIS jointly and
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severally represent and warrant to Deere Park as long as this Agreement remains
in effect as follows:
a. AEC is the sole legal and beneficial owner of the Pledged
Collateral free of any pledge, hypothecation, lien, charge,
encumbrance or security interest (collectively, "Encumbrance") in such
instruments or the proceeds thereof. except such as are granted
hereunder;
b. The authorized capital stock of USIS, as of the date of
this Agreement, consists of: 25,000,000 shares of common stock,
8,763.982 shares of which are issued and outstanding; and 1,000,000
shares of preferred stock, of which no shares have been issued or are
outstanding. All issued and outstanding shares of USIS common stock:
(i) have been duly authorized and validly issued; (ii) are fully paid
and nonassessable; and (iii) were issued in compliance with all
applicable state and federal laws concerning the issuance of
securities. Except as set forth on Exhibit B, there are no outstanding
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options, warrants, rights (including conversion or preemptive rights
and rights of first refusal), proxy or stockholder agreements, or
agreements of any kind for the purchase or acquisition from USIS of
any of its securities. There are no voting or other agreements which
restrict voting or dividend rights on the USIS common stock. The
securities comprising the Pledged Collateral have been duly authorized
and validly issued, and are fully paid and non-assessable and
constitute 7,175,858 shares of the issued and outstanding shares of
capital stock of USIS.
c. AEC and USIS have full power and authority to execute,
deliver and perform this Agreement and all of the documents,
certificates, instruments and agreements contemplated hereby (the "AEC
Ancillary Agreements"). The execution, delivery and performance of
this Agreement and the AEC Ancillary Agreements by AEC and USIS have
been previously authorized and approved by AEC's and USIS' respective
boards of directors as set forth on Exhibit C and do not require any
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further authorization or consent of AEC, USIS or either of their
respective boards of directors or stockholders. This Agreement has
been duly authorized, executed and delivered by AEC and USIS and is
the legal, valid and binding obligation of AEC and USIS enforceable in
accordance with its terms, and each of the AEC Ancillary Agreements
has been duly authorized by AEC and USIS and upon execution and
delivery by AEC and USIS will be a legal, valid and binding obligation
of AEC and USIS enforceable in accordance with its terms;
d. Neither the execution and delivery of this Agreement or
any of the AEC Ancillary Agreements or the consummation of any of the
transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will: (i) conflict with,
result in a breach of the terms, conditions or provisions of, or
constitute a default, an Event of Default or an event creating rights
of acceleration or termination; (ii) result in cancellation or a loss
of rights under, or result in the creation or imposition of any
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encumbrance upon any of the Pledged Collateral, under: (A) the charter
or By-laws of either AEC or USIS, (B) any AEC or USIS note,
instrument, agreement. mortgage, lease, license, franchise, permit or
other authorization, right, restriction or obligation to which AEC or
USIS is a party or any of the Pledged Collateral is subject or by
which AEC or USIS are bound, (C) any court order to which AEC or USIS
is a party or any of the Pledged Collateral is subject or by which
Deere Park, AEC or USIS is bound; or (iii) require the approval,
consent, authorization or act of, or the making by AEC or USIS of any
declaration, filing or registration with, any person or entity;
e. Upon delivery of the Pledged Collateral to Escrow Agent,
this Agreement and the taking possession by the Escrow Agent of the
certificates and instruments constituting the Pledged Collateral shall
create a valid first lien and perfected security interest in the
Pledged Collateral and the proceeds thereof subject to no prior
encumbrance or agreement purporting to grant to any third party a
security interest in the property or assets of the AEC which would,
include the Pledged Collateral; and
f. None of the funds originally advanced by Deere Park shall
be used for the purpose, whether immediate, incidental, or ultimate,
of buying or carrying the Pledged Securities.
g. AEC has provided USIS with adequate and sufficient
consideration for the execution of this Agreement and the performance
of the covenants and other obligations contemplated hereby; such
consideration consists of the elimination of management fees payable
from USIS to AEC from the date of execution hereof to the termination
of all obligations hereunder. USIS hereby acknowledges receipt of such
consideration and the benefits it will derive from its execution of
this Agreement and its performance hereunder.
12. COVENANTS. AEC and USIS hereby covenant that until all of the
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Obligations have been satisfied in full:
a. AEC and USIS will not sell, convey or otherwise dispose
of the Pledged Collateral or any interest therein or create. incur or
permit to exist any Encumbrance whatsoever in or with respect to the
Pledged Collateral or the proceeds thereof;
b. AEC and USIS will not take any action whatsoever that
might impair the value of the Pledged Collateral or the liquidity
thereof;
c. AEC and USIS shall afford to the officers, employees and
authorized representatives of Deere Park (including, without
limitation, independent public accountants and attorneys) complete
access during normal business hours to the offices, properties,
employees and business and financial records) of AEC and USIS to the
extent Deere Park shall deem necessary or desirable and shall furnish
to Deere Park or its authorized representatives such additional
information concerning the Pledged Collateral as shall be reasonably
requested, including all such information as shall be necessary to
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enable Deere Park or its representatives to verify the accuracy of the
representations and warranties contained in this Agreement, to verify
that the covenants of AEC and USIS contained in this Agreement have
been complied with and to further the purposes of this Agreement.
Deere Park agrees that such investigation shall be conducted in such a
manner as not to interfere unreasonably with the operations of AEC or
USIS. No investigation made by Deere Park or its representatives
hereunder shall affect the representations and warranties of AEC or
USIS hereunder;
d. In addition to all other amounts payable hereunder, AEC
shall pay to Deere Park all of the out-of-pocket costs and expenses of
Deere Park (including the fees and out-of-pocket expenses of Deere
Park's counsel) in connection with the negotiation, preparation,
execution and delivery of any amendments, supplements or modifications
to this Agreement, the Escrow Agreement and any documents, instruments
or agreements required to be prepared or filed in furtherance of the
purposes of this Agreement;
e. AEC and USIS shall fully cooperate and within six (6)
calendar days of any request, provide all information required by
Deere Park to be tiled with any governmental entity in connection with
this Agreement, including without limitation information required by
the Securities and Exchange Commission. Such information supplied by
AEC and USIS for inclusion in any document shall not at the time
contain any untrue statement of a material fact or omit to state any
material fact required to be stated in any such filing or necessary in
order to make the statements in such tiling, in light of the
circumstances in which such statements were made, not misleading. If,
at any time AEC or USIS should discover any event or fact relating to
AEC. USIS or any of its affiliates, officers or directors which would
be required to be set forth in any such filing AEC or USIS, as
applicable, shall promptly inform Deere Park of such event or fact;
and
f. AEC and USIS will not perform any act` following an Event
of Default under this Agreement which might prevent Deere Park from
enforcing any of the terms and conditions of this Agreement.
13. FURTHER ASSURANCES. AEC and USIS agree that at any time and from
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time to time, at the sole cost and expense of AEC and USIS, as applicable, AEC
and USIS will promptly execute and deliver or cause to be executed and delivered
all further instruments and documents, and take all further action (including
without limitation the tiling of the Uniform Commercial Code financing
statements), that may be necessary or desirable, or that Deere Park or Escrow
Agent may reasonably request, in order to create, perfect, maintain and protect
any security interest granted or purported to be granted by AEC and USIS to
Deere Park Xxxxxx this Agreement or to enable Deere Park to exercise and enforce
its rights and remedies under this Agreement.
14. DEERE PARK APPOINTED ATTORNEY-IN-FACT. AEC and USIS irrevocably
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appoint Deere Park, any officer or agent of Deere Park and any other Person
selected by Deere Park as AEC's and Deere Park's respective attorneys-in-fact,
with full power of substitution and full authority in the place and stead of AEC
and USIS, as applicable, and in the name of AEC and USIS or otherwise, from time
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to time in such person's discretion, upon the occurrence and during the
continuance of an Event of Default, to take any action and to execute any
instrument which such person may deem necessary or advisable to accomplish the
purposes of this Agreement and. if an Event of Default shall have occurred to:
(a) notify the parties obligated on any of the Pledged Collateral to make
payment to Deere Park of any amounts due or to become due thereunder; (b) cause
the Escrow Agent to take control of any the Pledged Collateral, whether or not
in Deere Park's possession; and (c) to receive, endorse and collect all
instruments payable to AEC representing any Pledged Collateral or any cash,
securities, interest, dividends, distributions, rights or other property
constituting the Pledged Collateral.
15. REASONABLE CARE. Deere Park and Escrow Agent shall be deemed to
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have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which Deere Park and Escrow Agent accord securities
held for their own account, if any, it being understood that Deere Park and
Escrow Agent shall not have any responsibility under any circumstances
whatsoever for: (i) ascertaining or taking action with respect to calls,
conversions, subscription rights, tenders, maturities or other matters relative
to the Pledged Collateral, whether or not the Deere Park and Escrow Agent has or
is deemed to have knowledge of such matters; or (ii) taking any necessary steps
to preserve rights of AEC or any other person against any parties with respect
to any Pledged Collateral. Deere Park and Escrow Agent shall further be deemed
to have exercised reasonable care in the custody and preservation of any of the
Pledged Collateral in its possession if it takes such action for that purpose
consistent with the purposes of this Agreement as AEC shall request in writing,
but (unless such failure constitutes gross negligence or willful misconduct on
the part of Deere Park or Escrow Agent) failure by Deere Park and Escrow Agent
to comply with any such request shall not of itself be deemed a failure to
exercise reasonable care, and no failure by Deere Park or Escrow Agent to do any
act with respect to the preservation of such Pledged Collateral not so requested
by AEC, shall of itself be deemed a failure to exercise reasonable care in the
custody or preservation of such Pledged Collateral. AEC represents to Deere Park
and Escrow Agent that AEC has made its own arrangements for keeping informed of
changes or potential changes affecting the Pledged Collateral. and AEC agrees
that Deere Park and Escrow Agent shall have no responsibility to inform AEC of
any such changes or potential changes or for taking any action or omitting to
take any action with respect to such matters.
16. DEFAULT AND REMEDIES. The term "Event of Default" hereunder shall
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mean any of the following: (i) AEC shall fail to pay any amount due hereunder
when due or declared due (whether by maturity, acceleration or otherwise); (ii)
any proceeding shall be instituted by or against either AEC or USIS or any of
the Pledged Collateral under the provisions of any federal bankruptcy,
reorganization, arrangement of debt, insolvency or receivership laws or similar
state or federal laws providing for the relief of debtors, and such proceeding
shall not have been dismissed within sixty (60) days following its institution
(except for a proceeding instituted by Deere Park prior to an Event of Default);
(iii) either AEC or USIS shall make an assignment for the benefit of its
creditors; (iv) either AEC or USIS is or shall be in breach or default in any
respect of any of its representations, warranties, covenants, undertakings or
other obligations made pursuant to this Agreement, or otherwise fail to comply
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with any of the terms and provisions hereof; (v) any proceeding shall be
instituted by or against either AEC or USIS for its liquidation or dissolution
and not dismissed within sixty (60) days, or (vi) either AEC or USIS shall cease
to do business as a going concern for any reason. If an Event of Default under
the terms of this Agreement shall occur and be continuing, Deere Park, without
obligation to resort to any other security, at the expense of AEC, shall have
the right at any time and from time to time, in its sole discretion, to take any
and all of the following actions:
a. cause the Court in the Litigation to enter the
Stipulation and enforce the same to its fullest extent;
b. exercise any and all rights under applicable law to
enforce the judgment and discover the assets of AEC;
c. receive from the Escrow Agent the Pledged Collateral upon
an Event of Default relative from the failure of AEC to timely make
the payments under this Agreement;
d. instruct the Escrow Agent to deliver the Pledged
Collateral to Deere Park within two (2) business days of Deere Park's
notice to the Escrow Agent and AEC for all Events of Default (other
than the failure of AEC to make any payments contemplated by this
Agreement) of an Event of Default and to exercise any and all rights
under applicable law to enforce its security interest including but
not limited to its rights to foreclose upon the Pledge Collateral and
apply the proceeds of the Pledged Collateral directly to reduce the
obligations hereunder, provided that in the event of an Event of
Default other than a payment default, AEC shall have the right to
object to delivery of the Pledged Collateral as provided in the Escrow
Agreement; and
e. receive from AEC interest at a rate of 14% per annum on
all amounts due on the obligations hereunder accruing from May 15,
2000 to the date paid and reimbursement of all attorneys' fees and
costs and all other costs and expenses incurred by Deere Park related
to enforcement of Deere Park rights herein, including without
limitation, entering and enforcing the Stipulation and foreclosing on
the Pledged Collateral, all of which amounts AEC hereby agrees to
promptly pay to Deere Park.
17. SECURITY INTEREST ABSOLUTE. All rights of Deere Park and security
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interests granted under this Agreement and all obligations of AEC and USIS under
this Agreement shall be absolute and unconditional irrespective of:
a. Any lack of validity or enforceability of the Loan
Documents;
b. Any proceeding under any bankruptcy, reorganization,
arrangement of debt, insolvency, readjustment of debt or receivership
having been filed by or against AEC or USIS;
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c. Any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations hereunder, or any
other amendment or waiver of or consent to any departure from the Loan
Documents;
d. Any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the obligations
hereunder of any person or entity;
e. Any law, regulation or order of any jurisdiction
affecting any term of any of the obligations hereunder or Deere Park's
rights with respect to any of the obligations hereunder; or
f. Any other circumstances which might otherwise constitute
a defense available to, or a discharge of, AEC or USIS in respect of
the obligations hereunder or of this Agreement.
18. TERMINATIONS. Ninety-five days after the satisfaction in full of
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all obligations hereunder and conditioned upon no bankruptcy proceeding pending
against AEC or USIS, this Agreement shall terminate and the Escrow Agent shall:
(i) release any lien and security interest that it has in the USIS Collateral;
(ii) deliver to the AEC the USIS Collateral and such proceeds, if any, or
interest thereon as shall not have been realized upon or otherwise disposed of
pursuant to this Agreement or applied at the direction of the AEC for payment in
part of the obligations hereunder; and (iii) deliver to AEC the Pledge
Securities. In addition, after satisfaction of all obligations hereunder, Deere
Park shall: (i) subrogate all of Deere Park's rights in UKStar and MART to AEC;
(ii) upon execution by the other parties hereto. enter into mutual releases in
form and substance satisfactory to the parties hereto; and (iii) deliver to AEC
the shares of ETI it holds as of the date of termination.
19. [Intentionally Omitted.]
20. SEVERABILITY. The provisions of this Agreement are severable, and
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if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or enforceability shall affect
only such clause or provision or part thereof in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this Agreement.
21. INDEMNIFICATION, SURVIVAL OF OBLIGATIONS. AEC and USIS shall
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jointly and severally indemnify, defend and hold Deer Park harmless against and
in respect of all claims, demands, losses and expenses, including interest,
penalties and reasonable attorneys' fees and expenses, which arise, result from
or relate to any inaccuracy, misrepresentation, breach or failure by either AEC
or USIS to perform any of their representations, warranties, covenants or
agreements under or pursuant to this Agreement. All representations, warranties,
covenants and obligations contained in this Agreement shall survive the
execution of this Agreement.
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22. NOTICES. All notices or other communications required or
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permitted under this Agreement shall be in writing and shall be deemed given or
delivered: (i) when delivered personally or by commercial messenger; (ii) one
day following deposit with a recognized overnight courier service, provided such
deposit occurs prior to the deadline imposed by such service for overnight
delivery; or (iii) when transmitted, if sent by facsimile copy, provided
confirmation of receipt is received by sender in each case provided such
communication is addressed to the intended recipient as set forth on the
signature page hereto and:
If to Deere Park:
Deere Park Capital, L.L.C.
00 Xxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Coff
00 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to AEC:
American Eco Corporation
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx XxXxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxx & Xxxxxxx
Quaker Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
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Any party to this Agreement may send any notice. request, demand,
claim or other communication hereunder to the intended recipient at the address
set forth herein using any other means (including electronic mail), but no such
notice, request, demand, claim or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
23. NON-DISCLOSURE. Except as provided below, none of Deere Park, AEC
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or USIS shall directly or indirectly disclose any of the contents, arrangements
or other information pursuant to this Agreement to any party other than those
employees, representatives and agents of Deere Park, AEC or USIS ("Authorized
Representatives") who need to know and who agree to be bound by the provisions
contained in this Section. Each party hereto shall be liable to the other
patties for any breach of this Section by any of them or their Authorized
Representatives. No party shall, without the approval of the other parties
hereto, make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent that
they shall be so obligated by law or the rules of any stock exchange, in which
case the other parties hereto shall be so advised and the parties hereto shall
use their best efforts to cause a mutually agreeable release or announcement to
be issued; provided that the foregoing shall not preclude communications or
disclosures necessary to comply with any court order, subpoena or civil
investigative demand, or any accounting and Securities and Exchange disclosure
obligations.
24. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
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of and shall be binding upon the successors and assigns of the parties hereto.
25. HEADINGS. The section headings in this Agreement are solely for
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convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term of provision hereof.
26. GOVERNING LAW. This Agreement shall be governed by and construed
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in accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Illinois. Any litigation between the parties which
arises out of this Agreement or the obligations hereunder shall be instituted
and prosecuted only in the appropriate state or federal court or other tribunal
situated in Xxxx County, Illinois. AEC and USIS hereby submit to the exclusive
jurisdiction of such courts and tribunals for purposes of any such action and
the enforcement of any judgment or order arising therefrom. AEC and USIS hereby
waive any right to a change of venue and any and all objections to the
jurisdiction of the state and federal courts and other tribunals located in the
State of Illinois.
27. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES ITS
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RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH OF THE PARTIES
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HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY AND TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN
THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
28. COUNTERPARTS/FACSIMILE SIGNATURES. This Agreement may be executed
---------------------------------
and delivered (including by facsimile transmission) in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart. Notwithstanding the laws of am jurisdiction in
which this Agreement is executed or delivered, a facsimile signature shall for
all purposes be deemed an original and shall bind the xxxxxx as if such
facsimile were an original. Each party hereto undertakes to deliver to each of
the other parties' hereto original copies of any facsimile signature by
overnight courier to the addresses set forth in Section 22 above.
29. ENTIRE AGREEMENT. This Agreement constitutes the entire
----------------
understanding of the parties with respect to the subject matter hereof and
supercedes all discussions, negotiations and agreements among the parties,
whether oral or written, prior to or contemporaneous with the date hereof. This
Agreement may be changed, modified or amended only by written agreement signed
by AEC, Deere Park and USIS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement as of the date first written above.
DEERE PARK CAPITAL, L.L.C.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Its: President
------------------------------------
Address:
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
---------------------------------------
Xxxxxxxxxx, Xxxxxxxx 00000
---------------------------------------
Attention: Xxxxx X. Xxxxxx, Esq.
-----------------------------
AMERICAN ECO CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Its: President/CEO
-----------------------------------
Address:
00000 Xxxxx Xxxx
---------------------------------------
Xxxxxxx, Xxxxx 00000
---------------------------------------
Attention: Xxxxxxx X. XxXxxxxx
-----------------------------
U.S. INDUSTRIAL SERVICES, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------
Its: President/CEO
-----------------------------------
Address:
00000 Xxxxx Xxxx
---------------------------------------
Xxxxxxx, Xxxxx 00000
---------------------------------------
Attention: Xxxxxxx X. XxXxxxxx
-----------------------------
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