EXHIBIT 10.1
AGREEMENT
This Agreement is made as of this ____ day of _______, 2006, between
HydroChem Industrial Services, Inc. a Delaware corporation ("HydroChem") and VSI
Liquidation Corp, a Delaware corporation, f/k/a/ Valley Systems, Inc., and its
predecessors, successors and their subsidiaries (collectively, "VSI").
WHEREAS, HydroChem and VSI (collectively, the "Parties") entered into an
Asset Purchase Agreement dated September 8, 1998, which was subsequently amended
by the Amended and Restated Asset Purchase Agreement dated September 8, 1998;
WHEREAS, the Parties entered into a Second Amended and Restated Asset
Purchase Agreement ("Second Amended APA"), which was effective January 1, 1999;
WHEREAS, as stated in the Second Amended APA, environmental contamination
had been identified at 000 Xxxxx 00xx Xxxxxx, Xx Xxxxx, Xxxxx ("the Property");
WHEREAS, the Parties, under the Second Amended APA, established an escrow
account (the "Escrow Account") to pay for any certain environmental expenses
arising from environmental conditions at the Property;
WHEREAS, in October 1999, VSI entered into an agreement with the Texas
Natural Resource Conservation Commission (now called the Texas Commission on
Environmental Quality "TCEQ") under the Texas Voluntary Cleanup Program
regarding the environmental contamination found at the Property, and was
assigned VCP Site No. 1066 ("VCP Agreement");
WHEREAS, VSI has been using funds from the Escrow Account to address the
Property under the VCP Agreement;
WHEREAS, following the completion of the matters addressed in this
Agreement, VSI will wind up its affairs and dissolve;
WHEREAS, without admitting any fact, responsibility, fault, or liability in
connection with the Property, in consideration of, and exchange for, the mutual
undertakings and covenants set forth herein, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound
hereby, agree as follows:
1. RESPONSIBILITY FOR ENVIRONMENTAL MATTERS
1.1 As between HydroChem and VSI, HydroChem agrees to take full and
complete responsibility for remediation of any environmental condition at, under
or from the Property which must be remediated under any applicable federal,
state, or local statute, rule, or regulation regulating the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release, or threatened release into the
environment, of any solid, hazardous, or toxic substance, pollutant,
contaminant, or waste, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.
9601 et seq. ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C.
ss. 6901, et seq. ("RCRA"), the Clean Water Act, 33 U.S.C. ss. 1251, et seq.,
the Toxic Substances Control Act, 15 U.S.C. ss. 2601, et seq. ("TSCA"), the
Clean Air Act, 42 U.S.C. ss. 7401, et seq., the Hazardous Materials
Transportation Uniform Safety Act, 49 App. U.S.C. ss. 2001, et seq., and the
Federal Insecticide, Fungicide & Rodenticide Act, 7 U.S.C. ss. 136, et seq.
("FIFRA"), any amendments to such statutes, and any regulations promulgated
under such statutes (collectively, the "Environmental Laws") including, without
limitation, the environmental conditions identified under the Section Amended
APA and the environmental conditions currently under remediation pursuant to the
terms and conditions of the VCP Agreement (collectively, all of the foregoing
being the "Environmental Conditions").
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1.2 Within fifteen days of this Agreement's execution, HydroChem shall
notify the TCEQ that it is substituting itself for VSI as the signatory party
under the existing VCP Program and shall file a revised VCP application for VCP
Site No. 1066 naming HydroChem as the responsible party. HydroChem shall
thereafter abide by the VCP Agreement. VSI shall acknowledge and execute any
documents required by TCEQ in connection with the activities contemplated by
this paragraph 1.2. HydroChem shall send copies to VSI of its filings with TCEQ
and correspondence between HydroChem and TCEQ pertaining to the requirements in
this paragraph 1.2.
1.3 If the TCEQ does not allow HydroChem to substitute as the responsible
party under the VCP Agreement and assume the obligations of the VCP Agreement,
VSI shall be entitled to terminate this Agreement, VSI shall retain all
obligations under the Second Amended APA, and the release of Escrow Funds
contemplated by Section 2.0 shall not occur.
2. ESCROW FUNDS
2.1 In exchange for HydroChem's obligations under this Agreement, the
parties shall, after paying all outstanding invoices and expenses payable from
the Escrow Account, including those due to Xxxxxxx Xxxxxx, and receipt of
notification from TCEQ that HydroChem has been substituted as the responsible
party under the VCP Agreement, cause the Escrow Agent to promptly disburse the
remaining balance of the Escrow Account to HydroChem, in an amount not less than
$480,000.00. The Parties shall take whatever actions are appropriate to
terminate the Escrow Agreement and the Escrow Account.
3. RELEASE AND INDEMNIFICATION
3.1 Release - In consideration of the foregoing, HydroChem does fully and
forever release and discharge VSI, its predecessors, successors, subsidiaries
and assigns, affiliates, shareholders, directors, officers and advisors from any
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and all actions, causes of action, claims and demands of whatever kind or nature
arising from the Environmental Conditions, including all responsibilities or
obligations under the Second Amended APA or the VCP Agreement.
3.2 Indemnity - In consideration of the foregoing, HydroChem shall
indemnify, defend and hold harmless VSI, its predecessors, successors,
subsidiaries and assigns, affiliates, shareholders, directors, officers and
advisors from any and all actions, causes of action, claims and demands, whether
brought under the common law, any Environmental Law, and any and all
administrative proceedings, to the extent arising from, or relating to any
Environmental Conditions at the Property which are asserted by any federal,
state, local or municipal governmental body or agency or subdivision thereof,
having jurisdiction or exercising authority or control over the Property,
including, without limitation, the TCEQ (a "Governmental Authority").
4. MISCELLANEOUS PROVISIONS
4.1 Representations - VSI and HydroChem represent to the other that each:
(a) is a corporation duly organized and validly existing in good standing; (b)
has taken all necessary corporate and legal actions to approve the making and
performance of this Agreement; (c) has signed this Agreement of its own free
act; and (d) has obtained the advice of legal counsel prior to signing this
Agreement. Each person signing this Agreement warrants that he or she has been
duly authorized by the Party on whose behalf he or she is signing to enter into
this Agreement.
4.2 Construction - This Agreement was drafted by counsel for the Parties
hereto, and there shall be no presumption of construction against any Party.
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4.3 Full Force and Effect - If any section of this Agreement shall for any
reason be or become invalid or unenforceable, it shall not effect the remaining
provisions of this Agreement which shall continue in full force and effect.
4.4 Execution - This Agreement may be executed in counterparts, each of
which shall be deemed an original.
4.5 Nature of Agreement - Nothing contained in the Agreement shall create a
partnership, joint venture, or other legal relationship between the Parties.
4.6 Successors and Affiliates - This Agreement shall be binding upon and
inure to the benefit of the Parties hereto, and their respective affiliates,
current and former parent and subsidiary corporations, successors and/or
assigns.
4.7 Notices - All notices required to be sent to VSI or HydroChem pursuant
to this Agreement shall be sent to the following individuals:
If to HydroChem:
HydroChem Industrial Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, General Counsel
with a copy to:
Ms. Xxxxxxxx Xxxxx
The Law Office of Xxxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to VSI:
VSI Liquidation Corp.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xx Xxxxxxxxxx
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and to:
Mr. Xxx Xxxxxx
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
with a copy to:
Xx. Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxxxx LLP
000 00xx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
4.8 Choice of Law. The Parties agree that the terms and conditions this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Texas.
4.9 Effective Date - This Settlement Agreement shall be effective upon
execution by the Parties hereto.
4.10 All other Agreements. Except as specifically modified by this
Agreement, all other terms and conditions of the agreements between the parties,
including, without limitation, the Second Amended APA, shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year hereinabove first
set forth.
VSI LIQUIDATION CORP.,
F/K/A VALLEY SYSTEMS, INC.
By: /s/ Xx Xxxxxxxxxx
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Xx Xxxxxxxxxx
President and Chief Executive Officer
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HYDROCHEM INDUSTRIAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxx
President
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