COMPROMISE AGREEMENT
THIS COMPROMISE AGREEMENT ("Agreement") is made as of the 28th day of June,
1996, by and among XXXXX XXXXXXXXX HOLDINGS, PLC. ("HMH"), XXXXX, INC. ("HI"),
XXXXX ENVIRONMENTAL CORPORATION ("HEC"), XXXXX PURIFICATION, INC. ("HPI"),
MERIDIAN NATIONAL CORPORATION ("MNC"), NATIONAL PURIFICATION, INC. ("NPI"), MEPI
CORP. ("MEPI"), ENVIRONMENTAL PURIFICATION INDUSTRIES COMPANY ("EPI"), AND
ENVIRONMENTAL PURIFICATION INDUSTRIES, INC. ("Newco"). HMH, HI, HEC and HPI and
their respective affiliates are collectively referred to below as the "Xxxxx
Parties." MNC, NPI, MEPI, EPI and Newco and their respective affiliates are
collectively referred to below as the "Meridian Parties."
RECITALS:
A. The parties hereto (other than Newco) entered into a Termination
Agreement dated as of July 1, 1992, as amended June 11, 1993, and April 28, 1994
(said Termination Agreement and said amendments thereto are collectively
referred to below as the "Termination Agreement"), providing for, among other
things, the termination and abandonment of HPI's interest in EPI and certain
continued funding of EPI.
B. Pursuant to the Termination Agreement, HPI advanced to EPI funds which
advances are evidenced by that certain Promissory Note of EPI dated as of July
1, 1992 (the "$650,000 Note").
C. Pursuant to the Termination Agreement, NPI and MEPI, jointly and
severally, guaranteed repayment of the $650,000 Note and granted a security
interest in all of their
interests in EPI (the "Partnership Interests") to HPI under the terms of that
certain Guaranty and Security Agreement dated as of July 1, 1992 (the "Guaranty
and Security Agreement").
D. As of the date of this Agreement, the outstanding balance under the
$650,000 Note is approximately $701,000 of which EPI has delivered funds to HPI
in the amount of $48,769.
E. Pursuant to a certain Loan Agreement, dated as of December 15, 1989,
between Xxxxxx-Xxxxx County Port Authority and EPI (the "IRB Loan Agreement"),
EPI is the borrower of an original principal amount of $5,745,000. The IRB Loan
Agreement and all of the documents related to and referenced in the IRB Loan
Agreement are collectively referred to below as the "IRB Loan Documents." The
loan transaction described in the IRB Loan Documents is referred to as the IRB
Loan.
F. Pursuant to the Termination Agreement, HPI assumed and agreed to pay
50% of the Financing Payments (as defined in the IRB Documents) due from EPI to
the Trustee (as defined in the IRB Documents).
G. HPI has agreed to accept $350,000 as payment in full of all
obligations under the $650,000 Note and to terminate the Guaranty and Security
Agreement and the Termination Agreement (except to the extent provided below)
all upon the terms and subject to the conditions set forth in this Agreement.
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AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and provisions set forth in this Agreement, and in reliance thereon, the parties
agree as follows:
1. PREPAYMENT AND COMPROMISE OF $650,000 NOTE. Concurrently with the
delivery of counterpart executed copies of this Agreement, Newco, on behalf of
EPI, will prepay, or cause to be prepaid, by wire transfer or official bank
check, the sum of $350,000 (the "Compromise Payment") to HPI in full and
complete compromise, settlement, and payment of all principal and interest and
any other obligations under the $650,000 Note. HPI (a) hereby accepts the
Compromise Payment as payment in full of all principal and interest and any
other obligations under the $650,000 Note and (b) will promptly surrender to EPI
the original $650,000 Note marked "fully paid and cancelled." The Xxxxx Parties
hereby withdraw the notice of default issued to EPI on behalf of HPI by Jaffe,
Raitt, Heuer & Xxxxx dated June 13, 1996 and acknowledge that EPI is not in
default under the $650,000 Note.
2. TERMINATION OF GUARANTY AND SECURITY AGREEMENT; RELEASE OF SECURITY
INTEREST. Except to the extent provided in Section 4 below, the Guaranty and
Security Agreement, the Termination Agreement and any other existing agreements
between any of the Xxxxx Parties and any of the Meridian Parties are hereby
terminated and will be of no further force and effect. Each of the Meridian
Parties acknowledges and agrees with the Xxxxx Parties that neither HPI nor any
other Xxxxx Party is a partner of, or has any ownership interest in, EPI and
nothing contained in this Agreement shall be construed otherwise. HPI
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will take all necessary steps to evidence its release of its security interest
in the Partnership Interests, including, without limitation, the execution and
delivery of termination statements to EPI for filing in each office in which a
financing statement has been filed by HPI or as may be necessary or required to
release any security interest it has in the Partnership Interests.
3. REPRESENTATION AND WARRANTY OF HPI. HPI represents and warrants that
it has not assigned, transferred, encumbered, or pledged to any party, or
otherwise alienated, the $650,000 Note, or any portion thereof.
4. CONTINUING AGREEMENTS. Except as provided below, any and all
restrictions, rights, obligations or liabilities of the parties to this
Agreement contained in the Termination Agreement are hereby dissolved and will
be of no further force and effect. Notwithstanding the foregoing, the parties
to this Agreement agree as follows:
(a) From and after the date of this Agreement through July 1, 1998,
none of the Xxxxx Parties will, directly or indirectly, own, manage,
control or participate in the ownership, management, or control of, or be
engaged or otherwise affiliated or associated as a consultant, independent
contractor or otherwise with, any person, corporation, limited liability
company, partnership, proprietorship, firm, associate or other business
entity, or otherwise engage in any business, that competes with EPI or any
of its affiliates as a "third party paint sludge processor" (as defined
below) within a circular, geographical area having a two hundred (200) mile
radius with its center located at EPI's Toledo, Ohio location (the "Toledo
200 Miles Area").
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(b) (i) HPI hereby assumes and agrees to pay 50% of the Financing
Payments (as defined in the IRB Loan Documents) due from EPI to the
Trustee, for Financing Payments due on or after July 1, 1992, net of
the Bond Reserve Deposit (as defined in the IRB Loan Documents). The
Trustee has been advised of this assumption by HPI, and the Trustee is
entitled to enforce this assumption, directly against HPI. This
assumption is intended to constitute a contribution of money by HPI to
EPI, within the scope of Section 752(a) of the Internal Revenue Code
of 1986, as amended.
(ii) HMH hereby guaranties to EPI and MNC the prompt and full
satisfaction of HPI's obligations under this Agreement.
(iii) EPI hereby assigns to HPI 50% of EPI's residual interest in
the Bond Reserve Deposit.
(iv) HPI will satisfy its obligations under subsection (b)(i)
above by making payments directly to the Trustee, for credit to the
IRB Loan, in amounts equal to 50% of the Financing Payments, as
Financing Payments are due under the IRB Loan Documents, for Financing
Payments due on or after July 1, 1992. HPI will provide evidence to
EPI of each payment made by HPI to the Trustee, at the time of such
payment. To the extent that any portion of the obligation of EPI
under the IRB Loan Documents is prepaid, at any time in the future,
HPI shall have the option to prepay its liability under this paragraph
on the same basis. The obligation of HPI to make payments to the
Trustee, in the amount of 50% of the Financing Payments is fixed and
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unconditional, and HPI waives all rights of subrogation against EPI
and all rights of contribution against NPI, with respect to such
payments. At such time as the Bond Reserve Deposit being held by the
Trustee under the IRB Loan Documents, including any accrued and unpaid
interest thereon, is applied by the Trustee to periodic Financing
Payments due from EPI or to a prepayment of the IRB Loan, 50% of such
funds shall be applied to the obligations of HPI under this paragraph.
In the event that the Trustee refunds any or all of the Bond Reserve
Deposit, including accrued and unpaid interest thereon, 50% of such
refund shall be refunded to HPI. The intent of this provision is that
HPI shall satisfy 50% of EPI's remaining obligations under the IRB
Loan, net of the Bond Reserve Deposit.
(c) HEC is the owner of certain patent and other proprietary rights
related to the fabrication and use of the DryPure-TM- processing system
(the "DryPure-TM- Rights"). HEC hereby reaffirms and acknowledges its
grant of a nonexclusive perpetual license of the DryPure-TM- Rights, to EPI
for the processing of paint sludge using the DryPure-TM- processing system.
Such license will be personal to EPI but may be assigned in connection with
any sale of the DryPure-TM- processing system.
(d) From and after the date of this Agreement through July 1, 1998,
HEC will not grant a license of DryPure-TM- Rights to any third party paint
sludge processor, to use a DryPure-TM- system within the Toledo 200 Mile
Area. Furthermore, from and after the date of the Agreement through July
1, 1998, HEC will not grant a license of DryPure-TM- Rights outside of the
Xxxxxx 000 Xxxx Xxxx to any third party paint
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sludge processor, without offering a right of first refusal, on the
location, but not pertaining to the price, effective for a 30 day period,
to EPI for those areas. It is understood and agreed by the parties that
the term license includes, without limitation, the sale, lease or other
financing arrangement of a DryPure-TM- processing system.
(e) For the purposes of this Agreement, the term "third party paint
sludge processor" means any business which uses a DryPure-TM- system to
process paint sludge which it did not generate (E.G., EPI), as opposed to
the parties who use a DryPure-TM- sludge drying system to process paint
sludge or other waste streams which they generate (E.G., Chrysler, Ford,
Toyota, Caterpillar).
(f) From and after the date of this Agreement through July 1, 1998,
EPI will pay a throughput charge to HEC in an amount equal to $10.00 per
cubic yard of paint sludge processed through EPI's DryPure-TM- systems.
All throughput charges will be paid on the last day of each month with
respect to number of cubic yards of paint sludge processed during the
preceding month.
(g) Nothing contained in this Agreement shall be deemed to prohibit
EPI from soliciting business from automobile and truck manufacturers. From
and after the date of this Agreement through July 1, 1998, HEC will assist
in the promotion of EPI, on a reasonable efforts but no guaranteed results
basis, for business by EPI from automobile and truck manufacturers. HEC is
in the business of selling, leasing and operating DryPure-TM- systems to
automobile and truck manufacturers. The assistance to be given by HEC to
EPI, referenced above, will be that HEC will refer
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automobile and truck manufacturers to EPI in instances where the sales call
by HEC results in an interest by the customer in the DryPure-TM-
technology, but not of a sale or lease basis. HEC will then refer the
customer to EPI.
(f) To the extent that EPI is unable to meet its obligations to the
Trustee, after application of the payments being made to the Trustee
pursuant to subsection (b)(iv) above (i.e. 50% of the Financing Payments
due), MNC hereby assures HMH that MNC will promptly satisfy its obligations
under the Guaranty Agreement dated as of December 15, 1989 between MNC and
the Trustee so that HMH's interest in the Bond Reserve Deposit is in no way
diminished. MNC and EPI will provide evidence to HPI of each payment by
EPI or MNC to the Trustee, at the time of such payment.
5. RELEASE. Each of MNC, NPI, MEPI, EPI and Newco hereby release the
Xxxxx Parties and their respective officers, directors, shareholders, employees,
agents, successors and assigns (collectively, the "Xxxxx Group") from and
against any and all claims, demands, causes of action, obligations and
liabilities (collectively, "Claims") of every kind and nature which they have,
had or could have had against the Xxxxx Group or any of them from the beginning
of time through the date of execution and delivery of this Agreement, whether
such Claims are known or unknown, accrued or unaccrued. Each of HMH, HI, HEC
and HPI hereby release the Meridian Parties, and their respective officers,
directors, shareholders, employees, agents, successors and assigns
(collectively, the "Meridian Group") from and against any and all Claims of
every kind and nature which they have, had or could have had against the
Meridian Group or any of them from the beginning of time through
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the date of execution and delivery of this Agreement, whether such Claims are
known or unknown, accrued or unaccrued.
6. ARBITRATION. Any disputes arising between any of the Xxxxx Parties,
on the one hand, and any of the Meridian Parties, on the other hand, of any
nature whatsoever, shall be submitted to binding arbitration pursuant to the
rules of the American Arbitration Association, then in effect, in Toledo, Ohio.
7. BINDING EFFECT. The rights and obligations of the parties under this
Agreement will inure to the benefit of, and will be binding upon, the parties
and their respective successors and assigns. Any assignment of this Agreement
or any of the rights, interests or obligations of any party to this Agreement
will not relieve any party from its obligations under this Agreement.
8. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Ohio without giving effect to the
principles of conflicts of law thereof.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties and supersedes all other understandings or agreements, written or
oral, if any, with respect to the subject matter of this Agreement.
10. MULTIPLE COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Compromise Agreement as
of the date first above written. Each person signing below warranties his or
her authority to do so.
XXXXX XXXXXXXXX HOLDINGS, PLC. XXXXX, INC.
By: __________________________ By: ___________________________
Name: Name:
Title: Title:
XXXXX ENVIRONMENTAL XXXXX PURIFICATION, INC.
CORPORATION
By: __________________________ By:____________________________
Name: Name:
Title: Title:
MERIDIAN NATIONAL CORPORATION NATIONAL PURIFICATION, INC.
By: __________________________ By: ___________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
President President
[Signatures continued on next page]
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MEPI CORP. ENVIRONMENTAL PURIFICATION
INDUSTRIES COMPANY
By: MEPI Corp., its general partner
By:____________________________
Xxxxxxx X. Xxxxxxx By:____________________________
President Xxxxxxx X. Xxxxxxx
President
and also
ENVIRONMENTAL PURIFICATION By: National Purification, Inc.,
INDUSTRIES, INC. its general partner
By: ___________________________ By: ________________________________
Xxxxx X. Maison Xxxxxxx X. Xxxxxxx
President President
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