EXHIBIT 10.33
EXHIBIT 10.33
TOLLING AGREEMENT
This Tolling Agreement (the "Agreement") is made as of this 30th day of
July, 1997, by and between American Ecology Corporation ("American Ecology") (on
behalf of itself and all subsidiaries of American Ecology Corporation) and
Xxxxxx Environmental Services, Inc. ("Xxxxxx") (collectively, the "Parties").
WHEREAS, American Ecology and Xxxxxx are parties to a Stock Purchase
Agreement as of May 10, 1994 by and between American Ecology Corporation and
Xxxxxx Environmental Services, Inc., as amended by Amendment dated September 2,
1994 (the "Stock Purchase Agreement"), pursuant to which (i) Xxxxxx agreed to
perform certain services for American Ecology and its subsidiaries for which it
was entitled to commissions ("Maquiladora Commissions") and American Ecology
purchased one hundred percent of the issued and outstanding capital stock of
Gibraltar Chemical Resources, Inc. from Xxxxxx; and (ii) American Ecology was
entitled to certain receivables (the "Receivables"); and
WHEREAS, American Ecology and Xxxxxx are parties to an agreement dated
December 31, 1994 (the "Maquiladora Agreement"); and
WHEREAS, American Ecology contends that certain Purchaser's Indemnified
Persons (as defined in the Stock Purchase Agreement) have incurred and continue
to incur costs and expenses giving rise to a cause of action for indemnification
or other damages against Xxxxxx under the Stock Purchase Agreement, and
otherwise; and
WHEREAS, American Ecology and/or other Purchaser's Indemnified Persons
intend to file a claim against Xxxxxx for indemnification or other relief under
the Stock Purchase Agreement, and otherwise, for the Receivables; and
WHEREAS, American Ecology executed and delivered to Xxxxxx a promissory
note dated December 31, 1994 in the principal amount of $550,000 ("$550,000
Note"), pursuant to the Amended Agreement, which $550,000 Note was due and
payable on December 31, 1995; and
WHEREAS, American Ecology has not paid the $550,000 Note; and
WHEREAS, Xxxxxx contends that it has performed services on behalf of
American Ecology under the Maquiladora Agreement and that it has earned
Maquiladora Commissions which have not been paid; and
WHEREAS, Xxxxxx contends that it has duly made demand for payment of the
$550,000 Note and intends to file a claim against American Ecology for payment
of the $550,000 Note and the unpaid Maquiladora Commissions; and
WHEREAS, American Ecology and related entities have filed an action
entitled AMERICAN ECOLOGY ENVIRONMENTAL SERVICES CORPORATION, ET AL., V. XXXXXXX
XXXXXXX, ET AL., No. 3-96CV2670-D (N.D. Tex.) (hereinafter, the "M.O.S.E.S.
Litigation"); and
WHEREAS, American Ecology and its affiliates have been named as defendants
in various lawsuits arising in whole or in part out of the operation of
Gibraltar Chemical Resources, Inc. (hereinafter, the "Gibraltar Litigation");
and
WHEREAS, the Parties have begun negotiating in an attempt to settle,
without costly and protracted litigation, American Ecology's and Xxxxxx'x claims
against each other; and
WHEREAS, the Parties are entering into this Agreement in a desire to
eliminate the need for, or to defer, any litigation of claims by the Parties,
without thereby altering the claims or defenses available to the Parties;
NOW THEREFORE, American Ecology and Xxxxxx hereby stipulate and agree, for
good and sufficient consideration given, as follows:
1. The period from July 30, 1997 through July 30, 2000, inclusive (the
"Tolling Period"), will not be included in computing the running of any statute
of limitations with regard to an action by American Ecology against Xxxxxx in
connection with the Stock Purchase Agreement or the Receivables, or with regard
to an action by Xxxxxx against American Ecology in connection with the $550,000
Note and the Maquiladora Commissions.
2. The Tolling Period will not be considered in any other defense
concerning the timeliness of such an action by American Ecology against Xxxxxx
or such an action by Xxxxxx against American Ecology.
3. Xxxxxx agrees not to assert, plead, or raise in any fashion, whether
by answer, motion, or otherwise, in any action with respect to any claim by
American Ecology relating to the Stock Purchase Agreement or the Receivables,
any defense or avoidance based upon the running of any statute of limitations
during the Tolling Period, and the statute of limitations, if any, shall be
tolled during and for the Tolling Period.
4. American Ecology agrees not to assert, plead, or raise in any fashion,
whether by answer, motion, or otherwise, in any action with respect to any claim
by Xxxxxx relating to the $550,000 Note, or the Maquiladora Commissions, any
defense or avoidance based upon the running of any statute of limitations during
the Tolling Period, and the statute of limitations, if any, shall be tolled
during and for the Tolling Period.
5. This Agreement does not constitute any admission or acknowledgment of
liability on the part of any party to this Agreement, nor does this Agreement
constitute any admission or acknowledgment on the part of either party that any
statute of limitations or any other defense concerning the timeliness of
commencing a civil action is applicable to any claim to be asserted by the other
party under the Stock Purchase Agreement or the Maquiladora Agreement.
6. Nothing in this Agreement shall be construed to prevent the Parties
from entering into an additional tolling agreement or tolling agreements to
extend the Tolling Period if the Parties so agree in writing.
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7. The Parties further agree that no pleadings, documents, discovery, or
other materials created in connection with the M.O.S.E.S. Litigation or the
Gibraltar Litigation (including any future litigation related to the M.O.S.E.S.
Litigation or the Gibraltar Litigation) may be used for any purpose in any
litigation between the Parties, except with the consent of both Parties.
Without limiting the foregoing, the Parties agree that no position taken or
statements made in connection with the M.O.S.E.S. Litigation or the Gibraltar
Litigation shall be used as an admission in any litigation between the Parties.
8. Except as provided in paragraph 9 hereof, American Ecology agrees that
as long as the M.O.S.E.S. Litigation is pending it will not pursue its claims
against Xxxxxx under the Stock Purchase Agreement or for the Receivables until
after July 30, 2000. Nothing herein shall require American Ecology to pursue
the M.O.S.E.S. Litigation or inhibit its right to deal with the M.O.S.E.S.
Litigation in any manner it wishes. Any recovery by American Ecology in the
M.O.S.E.S. Litigation, however derived, shall be a dollar for dollar reduction
of the obligations of Xxxxxx under the Stock Purchase Agreement.
9. Notwithstanding anything to the contrary in paragraph 8 hereof,
American Ecology reserves the right at all times to enforce section 7.5 of the
Stock Purchase Agreement.
10. This Agreement contains the entire agreement between the Parties, and
no statement, promise, or inducement made by any party to this Agreement that is
not set forth in this Agreement will be valid or binding. This Agreement may
not be modified except in writing signed by all Parties and endorsed herein.
11. The undersigned representative of each of the Parties certifies that
he or she is fully authorized to enter into the terms and conditions of this
Agreement and to legally bind such party to this Agreement.
12. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument and are binding between and among each signatory party.
AMERICAN ECOLOGY CORPORATION
By:
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Date Name:
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Title:
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XXXXXX ENVIRONMENTAL SERVICES, INC.
By:
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Date Name:
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Title:
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