EXHIBIT 99.4
MISCELLANEOUS AGREEMENT
THIS MISCELLANEOUS AGREEMENT (the "Agreement") is made and entered
into this 16th day of September, 1998 (the "Effective Date"), by and between
Newpark Resources, Inc., a Delaware corporation (herein, together with each of
its officers, directors, employees, agents, attorneys, representatives,
predecessors, successors, and assigns, and its direct and indirect corporate
parents, subsidiaries, partners, affiliates, and joint venturers, and all of
their respective officers, directors, employees, agents, attorneys,
representatives, predecessors, successors, and assigns, referred to as
"Newpark"), and U.S. Liquids, Inc., a Delaware corporation (herein, together
with each of its officers, directors, employees, agents, attorneys,
representatives, predecessors, successors, and assigns and its direct and
indirect corporate parents, subsidiaries, partners, affiliates, and joint
venturers and all of their respective officers, directors, employees, agents,
attorneys, representatives, predecessors, successors, and assigns, referred to
as "USL"), with reference to the following facts:
A. On or about December 13, 1996, pursuant to Asset Purchase
Agreement dated December 2, 1996 (the "Sanifill Purchase Agreement"), by and
among (i) SANIFILL, INC., a Delaware corporation ("Sanifill"), XXXXXXXX XXXXX,
X.X., a Delaware limited partnership also known as XXXXXXXX XXXXX, LTD.
("Xxxxxxxx") and XXXXXXXX XXXXX XXXX, L.P., a Delaware limited partnership
("Xxxxxxxx Xxxxx XXXX") (collectively "Sellers"), and (ii) USL, as "Buyer," USL
assumed all liabilities and obligations of Sanifill and Xxxxxxxx under the
contracts (the "Contracts") listed on Schedule I attached to this Agreement,
which are referred to in this Agreement by the names with which they are
identified on Schedule I. Sanifill and Xxxxxxxx were not relieved of any of
their obligations to Newpark under the Contracts and certain other agreements.
B. Concurrently with the execution of this Agreement, Newpark and
USL are executing a Settlement of Arbitration and Release (the "Release"), a
"NOW Payment Agreement," a "Noncompetition Agreement," and an "Asset Purchase
Agreement" (collectively, the "New Deal Agreements"), which may affect the
continued existence of the Contracts.
C. By this Agreement, the parties intend to clarify the continuing
status of the Contracts after the execution of the Release and the New Deal
Agreements.
NOW THEREFORE, in consideration of the foregoing and of their mutual
covenants and agreements contained herein, the parties hereby agree as follows:
1. STATUS OF DISPOSAL AGREEMENT. Articles VI, VII, VIII, IX, X
(other than Section 10.2) and XII of the Disposal Agreement shall remain in full
force and effect in accordance with their terms solely with respect to events
occurring and circumstances existing before the Effective Date. All other
provisions of the Disposal Agreement are hereby terminated, except to the extent
that such terminated provisions are necessary to the interpretation of the
articles of the Disposal Agreement that remain in effect.
2. STATUS OF SANIFILL NONCOMPETITION AGREEMENT AND JOINDER
AGREEMENT. As between Newpark and USL, the Sanifill Noncompetition Agreement
between Sanifill, Inc. and USL
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and the Joinder Agreement shall be superseded as of the Effective Date by the
Noncompetition Agreement dated September 16, 1998. As regards Sellers and their
Affiliates, the Sanifill Noncompetition Agreement and the Joinder Agreement
shall remain in full force and effect in accordance with the terms of each.
3. GUARANTEE OF NOW PAYMENT AGREEMENT.
3.1 PERFORMANCE OF NOW PAYMENT AGREEMENT. Newpark hereby
covenants and agrees that it shall cause Newpark Environmental Services, Inc.
("NESI") to fully perform all of its obligations under the NOW Payment Agreement
in a timely manner. Newpark further covenants and agrees that it shall take all
action, including, without limitation, supplying information necessary for the
determination of quantities of NOW that may be delivered pursuant to the NOW
Payment Agreement, or shall refrain from taking any action, as is necessary or
appropriate, to permit NESI to fully perform all of its obligations under the
NOW Payment Agreement in a timely manner.
3.2 UNCONDITIONAL GUARANTEE. Newpark hereby unconditionally
and irrevocably guarantees the performance in full of all obligations of NESI
under the NOW Payment Agreement, with the same force and effect and to the same
extent as if Newpark were a party to the NOW Payment Agreement having the same
rights and obligations thereunder as NESI.
3.3 NO SET-OFF; GUARANTY OF PERFORMANCE OR PAYMENT UPON
DEMAND. Newpark shall perform any obligations or pay any amounts due in respect
of the obligations of NESI under the NOW Payment Agreement promptly upon demand
by USL or its Affiliates, without any set-off, defense or deduction for any
claims or counterclaims of any kind, except for any such set-offs, defenses, or
deductions that Newpark could assert if it were a party to the NOW Payment
Agreement having the same rights and obligations thereunder as NESI.
3.4 WAIVER OF DILIGENCE, ETC. Newpark hereby waives diligence,
presentment, demand, protest and notice of any kind with respect to this
Guarantee, as well as any requirement that USL or its affiliates exhaust any
rights or take any action against NESI.
3.5 WAIVER OF SURETYSHIP DEFENSES. To the extent permitted by
applicable law, Newpark hereby waives any and all legal and equitable defenses
that arise by reason of Newpark's status as a surety for NESI, which defenses
would not be available to Newpark if it were a party to the NOW Payment
Agreement having the same rights and obligations thereunder as NESI.
3.6 STATUS. This Section 3 shall remain in full force and
effect to the extent that the NOW Payment Agreement remains in full force and
effect in accordance with its terms and shall terminate when and to the extent
that the NOW Payment Agreement is terminated.
4. STATUS OF PRIOR GUARANTY. The Prior Guaranty shall remain in full
force and effect to the extent that the Disposal Agreement remains in full force
and effect in accordance with
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its terms and shall terminate as of the Effective Date to the extent that the
Disposal Agreement is terminated.
5. GUARANTEE OF ASSET PURCHASE AGREEMENT. Newpark hereby
unconditionally and irrevocably guarantees the performance in full of all
obligations of NESI under the Asset Purchase Agreement, with the same force and
effect and to the same extent as if Newpark were a party to the Asset Purchase
Agreement having the same rights and obligations thereunder as NESI. Newpark
hereby waives diligence, presentment, demand, protest and notice of any kind
with respect to this Guarantee, as well as any requirement that USL or its
affiliates exhaust any rights or take any action against NESI.
6. STATUS OF LEASE AND SUBLEASES. The Lease and the Subleases
referred to in Schedule I of this Agreement shall remain in full force and
effect for three years beginning July 1, 1998, and then terminate on June 30,
2001. USL shall take all necessary and reasonable measures to ensure that the
Lease and Subleases remain in full force and effect until June 30, 2001.
7. OTHER AGREEMENTS. All other agreements between or among Newpark
and Sellers, or any of them, whether or not assumed by USL, shall remain in full
force and effect in accordance with their terms. USL shall use commercially
reasonable efforts to enforce for the benefit of Newpark all relevant covenants,
including, but not limited to, noncompetition covenants, made by Sellers in
favor of USL under or in connection with the Sanifill Purchase Agreement.
8. EFFECT ON SELLERS. Although Sellers are not party to this
Agreement, the parties intend that none of Sellers shall be relieved of any
obligations owed by them to Newpark by reason of the transactions which gave
rise to the Contracts, except to the extent that certain provisions of the
Disposal Agreement are prospectively terminated hereby.
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ON THIS DATE, the Parties have executed multiple originals of this
Miscellaneous Agreement.
NEWPARK RESOURCES, INC.
Dated: 9/17/98 By:/s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: PRESIDENT
U.S. LIQUIDS, INC.
Dated: 9/16/98 By:/s/ W. XXXXXXX XXX
Name: W. Xxxxxxx Xxx
Title: PRESIDENT
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Schedule I
List of Contracts
1. NOW Disposal Agreement by and among Sanifill, Inc., a Delaware
corporation, NOW Disposal Operating Co., a Delaware corporation and an
indirect wholly-owned subsidiary of Sanifill, and Xxxxxxxx Xxxxx, Ltd., a
Delaware limited partnership, dated as of June 4, 1996, as assumed by
Newpark Resources, Inc., by an Assumption and Guarantee Agreement dated
August 12, 1996 (the "Disposal Agreement")
2. Noncompetition Agreement by and between Sanifill, Inc., a Delaware
corporation, and Newpark Resources, Inc., a Delaware corporation, dated as
of August 12, 1996 (the "Sanifill Noncompetition Agreement")
3. Joinder Agreement, dated as of August 12, 1996, by Xxxxxxxx Xxxxx, Ltd., a
Delaware limited partnership, for the benefit of Newpark Resources, Inc.,
and its Affiliates (the "Joinder Agreement")
4. Assumption and Guarantee Agreement by and among Newpark Resources, Inc., a
Delaware corporation, Sanifill, Inc., a Delaware corporation, and Xxxxxxxx
Xxxxx, Ltd., a Delaware limited partnership, dated as of August 12, 1996
(the "Prior Guaranty")
5. Lease and Access Agreement by and between Xxxxxxxx Xxxxx, Ltd., a Delaware
limited partnership, and Newpark Resources, Inc. [no date] (the "Lease")
6. Sublease and Access Agreement by and between Xxxxxxxx Xxxxx, Ltd., a
Delaware limited partnership, and Newpark Resources, Inc. [no date] (the
"First Sublease")
7. Sublease and Access Agreement by and between Xxxxxxxx Xxxxx, Ltd. a
Delaware limited partnership, and Newpark Resources, Inc. [no date] (the
"Second Sublease," and, together with the First Sublease, the "Subleases")
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