EXHIBIT 10.5
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is made and entered into
this 31st day of December, 1998, by and among U.S. Liquids, Inc. ("U.S. Liquids"
or "USL"), a Delaware corporation, Newpark Resources, Inc., a Delaware
corporation ("Newpark"), and Newpark Environmental Services, Inc. ("NESI"), a
Delaware corporation and wholly owned subsidiary of Newpark, with reference to
the following facts:
A. Concurrently with the execution and delivery of this Option Agreement,
the parties have executed and delivered an agreement captioned "Payment
Agreement" (the "Payment Agreement") which modifies certain provisions of the
NOW Payment Agreement dated September 16, 1998 (as previously amended effective
September 22, 1998) between USL and NESI.
B. Under the Payment Agreement, Newpark and NESI retained the right, but
not the obligation, to deliver certain limited quantities of NOW to USL for
Disposal for a term ending June 30, 2001. NESI desires to obtain the option (the
"Option") to extend by up to two additional one-year periods (one period at a
time) the term (the "Term") for which it has the right to deliver NOW to USL for
Disposal.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings in this Option
Agreement (unless indicated otherwise, all Article and Section references in
this Option Agreement are to Articles and Sections in this Option Agreement):
ADJUSTMENT DATE: June 30, 2001 (the "First Adjustment Date") or June
30, 2002 (the "Second Adjustment Date"), as applicable.
AFFILIATE: A Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with the
Person specified. For purposes of this definition, the term "control" (including
the terms "controlling," "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to (i) vote 50% or
more of the voting interests in such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
ANNUAL VOLUME: For each Option Year separately, the maximum volume
of NOW permitted to be delivered by or on behalf of NESI at no cost and accepted
for Disposal by USL, which volume shall be 1,400,000 barrels of NOW for each
Option Year.
BASE RATE: 146.4.
COLLECTION: The collection, transfer or transportation of NOW.
CONSUMER PRICE INDEX: The number reflecting the measure of the
average change in prices over time of certain goods and services purchased by
all urban consumers in the Houston Area, as compiled and reported every
even-numbered month by the United States Department of Labor, Bureau of Labor
Statistics. On any Adjustment Date, the Consumer Price Index shall be the number
last reported and in effect as of that date. If the Consumer Price Index as
defined becomes unavailable, the parties shall use the number last reported as a
measure of the average change in prices of goods and services purchased by all
urban consumers in (i) the State of Texas or, in the event that number is
unavailable, (ii) the United States.
COVERED REGION: The States of Louisiana, Texas, Mississippi and
Alabama, and the Gulf of Mexico.
DISPOSAL: The treatment or disposal of NOW.
EXCLUDED NOW: NOW generated and collected on land and delivered to a
Landfarm from the site where it was generated entirely by on-land
transportation.
LANDFARMS: The NOW disposal facilities owned and operated by USL
designated as ▇▇▇ ▇▇▇▇▇, ▇▇ (DNR Permit #OWD 89-1) (the "Elm Grove Landfarm");
Bourg, LA (▇▇▇ ▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇) (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇"); ▇▇▇▇▇▇▇ Island, LA
(DNR Permit #91-10 OWD) (the "▇▇▇▇▇▇▇ Island Landfarm"); and Mermentau, LA (DNR
Permit #SWD 83-6) (the "Mermentau Landfarm").
NOW: Nonhazardous oilfield waste (including Washwater) associated
with the exploration and production of oil, gas and geothermal energy that
contains less than 30 picocuries per gram of Radium 226 or 228. Without limiting
the generality of the foregoing, for waste disposed of in Louisiana, the term
NOW shall include all wastes containing less than 30 picocuries per gram of
Radium 226 or 228 classified as NOW under Louisiana Statewide Order 29-B, as
currently in effect, and all waste that is classified as "E&P Waste" by the
Louisiana Department of Natural Resources.
OPTION: As defined in Section B above, the right to extend the Term,
as provided in this Option Agreement.
OPTION PAYMENT: The amount that NESI must pay to USL for an Option
Year if it exercises the Option as to such Option Year, which, except as
provided in Section 12.1, shall be no less than $8 Million, adjusted as provided
in Section 2.2 of this Option Agreement.
OPTION YEAR:The twelve-month period commencing July 1, 2001 (the
"First Option Year"), and/or the twelve-month period commencing July 1, 2002
(the "Second Option Year").
PAYMENT IN FULL AND ON TIME: Payment or reimbursement made to USL on
or before any date specified for such payment in this Option Agreement except
and unless timely paid in accordance with Section 13.6 of this Option Agreement.
-2-
PERSON: Any individual, corporation, association, partnership, joint
venture, trust, estate or other entity or organization or government or any
agency or political subdivision thereof.
TERM: As defined in Section B above.
WASHWATER: Fluids generated by the cleaning and/or decontamination
of tanks, barges, vessels, containers or other similar structures used in the
storage and/or transportation of NOW. Washwater may contain cleaning agents and
emulsifiers, etc., in addition to the basic cleaning agent (water).
ZAPATA FACILITY: A NOW disposal facility owned and operated by USL
located near Zapata, Texas.
2. GRANT AND EXERCISE OF OPTION
2.1 GRANT OF OPTION. USL hereby grants to NESI the Option, which may
be exercised or not exercised by NESI in its sole discretion. The Option may be
exercised by NESI as to the First Option Year only by giving to USL written
notice of the exercise of the Option on or before December 31, 2000; if the
Option is exercised as to the First Option Year, the Option may be exercised by
NESI as to the Second Option Year only by giving to USL written notice of the
exercise of the Option on or before December 31, 2001.
2.2 PAYMENTS BY NESI. For each Option Year as to which NESI
exercises the Option, NESI shall pay to USL an amount equal to the Option
Payment for such year. On the First Adjustment Date, June 30, 2001, the Option
Payment for the First Option Year shall be adjusted by (i) dividing 100% of the
Consumer Price Index in effect on that date by 100% of the Base Rate; and (ii)
multiplying the result by $8 million except as provided in Section 12.1. In the
event the net change in the Consumer Price Index is negative, the Option Payment
for the First Option Year shall be $8 million, except as provided in Section
12.1. NESI shall pay the Option Payment for the First Option Year in twelve
equal monthly installments due on or before July 2, 2001, August 1, 2001,
September 3,2001, October 1, 2001, November 1, 2001, December 3, 2001, January
2, 2002, February 1, 2002, March 1, 2002, April 1, 2002, May 1, 2002, and June
3, 2002, respectively, except as provided in Section 12.1. On the Second
Adjustment Date, June 30, 2002, the Option Payment for the Second Option Year
shall be adjusted by (i) dividing 100% of the Consumer Price Index in effect on
that date by 100% of the Base Rate; and (ii) multiplying the result by $8
million except as provided in Section 12.1. In the event the net change in the
Consumer Price Index is negative, then the Option Payment for the second Option
Year shall be $8 million except as provided in Section 12.1. NESI shall pay the
Option Payment for the Second Option Year in twelve equal monthly installments
due on or before July 1, 2002, August 1, 2002, September 2, 2002, October 1,
2002, November 1, 2002, December 2, 2002, January 1, 2003, February 3, 2003,
March 3, 2003, April 1, 2003, May 1, 2003, and June 2, 2003, respectively,
except as provided in Section 12.l.
2.3 OBLIGATION TO PAY. NESI's obligation to make Payment in Full and
on Time in any Option Year as to which NESI has exercised the Option exists
without regard to whether NESI exercises its option to deliver NOW, if any, to
USL in accordance with Section 3.1. Failure
-3-
to make Payment in Full and on Time in every instance for any reason whatsoever
constitutes a breach of this Option Agreement and shall not entitle NESI to any
offsets, carryovers, or counterclaims of any kind.
2.4 REIMBURSEMENT FOR REVENUES. For each Option Year as to which
NESI exercises the Option, NESI shall recover 100% of any revenues received by
USL and its Affiliates during each calendar quarter of that Option Year from the
"Business," as that term is defined in the Noncompetition Agreement dated
September 16, 1998, between USL and Newpark. USL shall reimburse NESI in the
proper amount within 30 days of the end of each calendar quarter.
3. DISPOSAL VOLUME
3.1 NOW DELIVERY.
3.1.1 DELIVERY OPTION.
▇. ▇▇▇▇ may, at its option, deliver to USL for Disposal at the ▇▇▇▇▇▇▇
Island Landfarm a maximum amount of NOW equal to the Annual Volume
for such Contract Year at no cost without prior notice or approval.
Subject to the terms and conditions and the limitations set forth in
this Agreement, USL shall accept for Disposal at the ▇▇▇▇▇▇▇ Island
Landfarm all NOW delivered by or on behalf of NESI, provided,
however, that in no event shall USL be obligated to accept from NESI
for Disposal at any Landfarm more than the Annual Volume during any
Contract Year. Failure to deliver the full Annual Volume shall not
result in any carryforward or increase in the Annual Volume in the
succeeding Contract Year.
▇. ▇▇▇▇ shall have the right to deliver a volume no more than 10% of
the Annual Volume to the Bourg Landfarm at no cost, subject to
Section 3.1.l.a, and prior notice by NESI in accordance with Section
13.5.2, of 48 hours if such delivery shall arrive by marine
transportation; or
▇. ▇▇▇▇ shall have the right to deliver a volume no more than 10% of
the Annual Volume to the Mermentau Landfarm at no cost, subject to
Section 3.1.1.a and prior written approval by USL, which approval
will not be unreasonably withheld.
3.1.2 OBLIGATION TO PAY. If NESI has exercised the Option as
to an Option Year, NESI is obligated to make the Option Payment regardless of
the volume of NOW, if any, delivered to or accepted by USL in accordance with
this Section 3.1, except as provided in Section 12.1. Failure by NESI to
exercise its option to deliver NOW to USL for Disposal shall not alter, lessen,
decrease, alleviate, or relieve NESI of its obligation to pay USL in accordance
with Article 2. NESI shall make all payments in accordance with Article 2
without regard to the volume of NOW, if any, offered or delivered to USL for
Disposal.
-4-
3.2 VARIANCE. The parties agree to cooperate to minimize monthly and
quarterly variances in NOW, if any, delivered for Disposal at the Landfarms, in
order to avoid disruption of or problems in USL's operations.
3.3 RADIUM CONCENTRATION. Notwithstanding anything contained in this
Option Agreement to the contrary, USL shall not be obligated to accept NOW from
NESI at any Landfarm where such NOW (i) when combined with other NOW in an
individual treatment cell, would cause the weighted average concentration of
Radium 226 or 228 to exceed 5 pCi/gm, excluding background, or (ii) would
require the loading of two or more treatment cells simultaneously to prevent the
weighted average concentration of Radium 226 or 228 from exceeding 5 pCi/gm,
excluding background. In the event NESI delivers NOW contravening the foregoing
sentence, USL shall have the right, but not the obligation, to reject such NOW
in accordance with Section 6.6.
4. SERVICES, LEVIES AND INSPECTION
4.1 ADDITIONAL SERVICES; DISPOSAL OF INJECTABLE SALTWATER. Pursuant
to this Option Agreement, USL will perform standard off-loading and customary
handling services associated with disposal of NOW up to, and including, the
Annual Volume at no additional charge. USL will perform additional services upon
request of NESI at the market rates of USL for such services, or at such other
rates as the parties may mutually agree upon. All charges for such additional
services shall be in addition to and independent of the Option Payment. USL will
accept injectable saltwater at the Landfarms for disposal upon request of NESI
at the market rates of USL for disposal of injectable saltwater, or at such
other rates as the parties may mutually agree upon. All charges for disposal of
injectable saltwater shall be in addition to and independent of the Option
Payment.
4.2 DISPOSAL OF WASHWATER. NESI shall pay USL to dispose of
Washwater at the rate of $1.50 per barrel of Washwater. On each Adjustment Date,
the rate shall be adjusted by (i) adding to the Base Rate 70% of the positive
amount, if any, determined by subtracting the Base Rate from the Consumer Price
Index as of that Adjustment Date, (ii) dividing said sum by the Base Rate, and
(iii) multiplying the result by $1.50. If the net change in the Consumer Price
Index is negative, then the rate for disposal of Washwater shall be $1.50 per
barrel. The disposal of Washwater shall be for the benefit of NESI, and USL
shall provide NESI with billing information specified by NESI to enable NESI to
▇▇▇▇ the customer or customers for whose account any related cleaning services
were performed.
4.3 INVOICE FOR ADDITIONAL SERVICES: USL shall invoice NESI on a
monthly basis for fees or expenses incurred from any services performed pursuant
to Section 4.1 or 4.2 to be paid no later than 30 days from receipt of the
invoice. Failure to pay USL in accordance with the terms of the invoice shall
constitute a breach of this Option Agreement.
4.4 EXTRAORDINARY LEVIES.
-5-
4.4.1 TAXES. Notwithstanding anything to the contrary
contained herein, if during the term of this Option Agreement there is levied
upon USL or any of its Affiliates or upon the operations of USL any tax, fee,
assessment, or other charge (other than income taxes applicable generally) by
any governmental authority, which tax, assessment or charge increases USL's
costs to operate any Landfarm, USL shall notify NESI of the cause and the per
barrel amount of the cost increase. If NESI chooses to deliver NOW to USL
following the effectiveness of the tax, fee, assessment or other charge, USL
will invoice NESI for and NESI will be obligated to pay NESI's share of the cost
increase for so long as such tax, fee, assessment or other charge remains in
effect as follows: (i) with respect to any cost increase resulting from any tax,
fee, assessment or other charge levied by a governmental authority on a per
barrel basis, an amount determined by multiplying such per barrel charge (but
not more than the increase in cost resulting therefrom) by the number of barrels
of NOW delivered by NESI to USL; and (ii) with respect to any tax, fee,
assessment or other charge levied by a governmental authority on any basis other
than per barrel, NESI's proportionate share of the cost increase resulting from
such tax, fee, assessment or charge. NESI's proportionate share shall be
calculated as follows: (a) if such tax, fee, assessment or other charge
increases the cost to operate the ▇▇▇▇▇▇▇ Island Landfarm, the NESI's
proportionate share shall be calculated by (i) dividing the number of barrels of
NOW delivered to USL by NESI by the Annual Volume and (ii) multiplying the
result by the amount of the cost increase resulting from the tax, fee,
assessment, or other charge; (b) if such tax, fee, assessment or other charge
increases the cost to operate the Bourg and/or Mermentau Landfarm, then NESI's
proportionate share shall be calculated by (i) dividing the number of barrels of
NOW delivered to USL by NESI to that Landfarm by the total number of barrels
delivered to that Landfarm by all Persons and (ii) multiplying the result by the
amount of the cost increase at that Landfarm resulting from the tax, fee,
assessment, or other charge. Such payment or reimbursement shall not alter the
Annual Volume nor alter the Option Payment.
4.4.2 LANDFARM ENVIRONMENTAL REGULATIONS. Notwithstanding
anything to the contrary contained herein, if during the term of this Option
Agreement there is a substantial change in regulatory requirements related to
the waste disposal business having general applicability to the handling,
treatment or disposal of NOW, which change increases in a material manner USL's
costs to operate any Landfarm, (i) USL shall notify NESI of the cause and the
per barrel amount of the cost increase and, to the extent that NESI chooses to
deliver NOW to USL, (ii) USL will invoice NESI for NESI's proportionate share of
the cost increase and NESI will be obligated to pay such amount so long as such
cost increase remains in effect. NESI's proportionate share shall be calculated
as follows: (a) if such change in regulatory requirements increases costs to
operate the ▇▇▇▇▇▇▇ Island Landfarm, then NESI's proportionate share shall be
calculated by (i) dividing the number of barrels of NOW delivered to USL by NESI
by the Annual Volume and (ii) multiplying the result by the amount of the cost
increase; (b) if such change in regulatory requirements increases costs to
operate the Bourg and/or Mermentau Landfarm, then NESI's proportionate share
shall be calculated by (i) dividing the number of barrels of NOW delivered to
USL by NESI to that Landfarm by the total number of barrels delivered to that
Landfarm by all Persons and (ii) multiplying the result by the amount of the
cost increase at that Landfarm. Failure to pay USL in accordance with the terms
of the invoice shall constitute a breach of this Option Agreement.
-6-
4.4.3 RIGHT OF INSPECTION. In the event USL notifies NESI of a
cost increase pursuant to this Section 4.4, NESI shall have the right to conduct
a reasonable review of the calculations, working papers and the books and
records related to the determination of such fee increase. All costs of such
review shall be borne exclusively by NESI.
5. GUARANTY BY NEWPARK
5.1 PERFORMANCE OF OPTION AGREEMENT. Newpark hereby covenants and
agrees that it shall cause NESI to fully perform all of its obligations under
this Option 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 this Option Agreement, or shall refrain from taking any
action, as is necessary or appropriate, to permit NESI to fully perform all of
its obligations under this Option Agreement in a timely manner.
5.2 UNCONDITIONAL GUARANTEE. Newpark hereby unconditionally and
irrevocably guarantees the performance in full of all obligations of NESI under
this Option Agreement, with the same force and effect and to the same extent as
if Newpark had the same rights and obligations hereunder as NESI.
5.3 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 hereunder 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 setoffs, defenses, or deductions that NESI could
assert hereunder.
5.4 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.
5.5 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 had the same rights and obligations
hereunder as NESI.
5.6 STATUS. This Section 5 shall remain in full force and effect
with respect to each Option Year for which the Option is exercised and shall
terminate thereafter when and to the extent that this Option Agreement is
terminated.
6. OPERATING PROCEDURES
6.1 COMPLIANCE WITH OPERATING PROCEDURES. NESI and its Affiliates
shall comply in all material respects with and abide by, and shall require their
employees, servants, agents, representatives, contractors, subcontractors,
haulers and transporters to comply in all material respects with and abide by,
all applicable federal, state and local laws, ordinances, permits,
-7-
regulations, directives, codes, standards and requirements relating to the
subject matter of this Option Agreement or the performance of services
hereunder, as well as all of USL's rules, regulations, procedures and
guidelines, written or oral, as the same may be reasonably adopted and modified
from time to time, including, without limitation, all safety and/or security
regulations, practices and procedures, and all procedures reasonably adopted by
USL in compliance with its permits or utilized by USL in the inspection,
sampling and testing of material delivered to any Landfarm for disposal.
6.2 INSPECTION AND TESTING BY NESI; NOTIFICATION. NESI agrees that
it shall inspect and test all materials accepted, acquired, taken possession of,
procured, directed, controlled or otherwise received by it from third party
generators or other parties for disposal (with the exception of any NOW produced
by third-party generators which NESI or its Affiliates treat and dispose of on
the site at which the NOW was generated) to the extent required by applicable
federal, state and local laws, ordinances, permits, regulations, directives,
codes, standards and requirements. NESI shall promptly notify USL if it becomes
aware of any unusual or special characteristics of any materials being delivered
to any Landfarm which cause such materials to require special treatment,
handling or care. Upon request by USL, NESI shall provide copies of all
inspection and test results relating to material to be disposed of at any
Landfarm under the terms of this Option Agreement to USL upon delivery.
6.3 SHIPMENT AND DELIVERY OF NOW. NESI, its Affiliates and/or its
contractors and subcontractors shall be responsible for proper containerization,
preparation and labeling for shipment, shipment, transportation and delivery to
any Landfarm, and shall comply fully with all applicable federal, state and
local laws, ordinances, permits, regulations, directives, codes, standards and
requirements in making such delivery to any Landfarm. USL and its Affiliates
undertake no responsibility whatsoever for the preparation, handling or
transportation of any material prior to acceptance of delivery as hereinafter
provided.
6.4 INSPECTIONS.
6.4.1 BARGES. Upon arrival of any barge transporting material
to a Landfarm at the direction of NESI or any of its Affiliates, USL shall have
the right to have an independent third party inspector selected by USL undertake
an inspection of the barge transporting material to the Landfarm for the purpose
of determining (a) the volume of materials delivered and (b) the condition of
the barge on arrival at the Landfarm. The costs of such inspector shall be split
evenly between NESI and USL, and NESI's portion of such expense shall be
included on the monthly invoices prepared by USL in accordance with Section 4.3.
Before any materials are off-loaded from the barge or any inspection or testing
is undertaken by USL, the independent inspector will provide the authorized
representatives of NESI and USL with an inspector's report indicating the time
and date, the barge identification number and volume of waste materials in the
barge. The authorized representatives of the parties will indicate their
acceptance of the inspector's report by signing the report. In the event either
authorized representative disagrees with the volume determination, either
authorized representative may request that an additional independent third-party
inspector prepare an inspector's report, the cost of which shall be borne by the
party requesting the same. If the parties are unable to agree on the actual
volume of waste after the preparation of the second inspector's report, the two
independent inspectors shall select a third independent inspector
-8-
to prepare an inspector's report, the cost of which will be borne half by NESI
and half by USL. The final volume determination shall be that volume agreed upon
by the majority of the independent inspectors that have inspected the barge. If
the barge appears to be damaged in any significant respect, the inspector shall
summarize the apparent damage and take photographs as appropriate to evidence
the scope of the damage. The authorized representative of NESI shall approve
such damage summary by executing the same prior to the time any material is
off-loaded from the barge. With regard to barges owned and operated by NESI, USL
agrees that it shall not exercise its right to implement the procedures set
forth in this Section 6.4.1 unless the parties have previously had a dispute or
disagreement relating to the quantity of materials delivered to a Landfarm by
NESI or the condition of a barge owned and operated by NESI and such dispute or
disagreement was not amicably resolved within 30 days.
6.4.2 TRUCKS. Upon arrival of a truck transporting material to
a Landfarm on behalf of NESI or any of its Affiliates, USL personnel shall
undertake an inspection to determine the volume of materials delivered. Before
any materials are off-loaded from the truck or any inspection or testing is
undertaken by USL, USL shall prepare a receipt indicating the time and date and
the volume of materials in the truck. The driver of the truck shall indicate his
or her acceptance of the receipt by signing the receipt. In the event the driver
disagrees with the volume determination, USL shall have the option of (i)
accepting the volume stated by the driver and preparing a receipt evidencing
such volume to be signed by the driver or (ii) rejecting such materials in
accordance with Section 6.6.
6.5 INSPECTION AND TESTING OF MATERIAL. After all inspections, if
any, pursuant to Section 6.4 have been concluded, USL shall conduct inspections,
testing and sampling using such equipment and procedures as are required by or
consistent with its permits. USL may rely exclusively on the results of its
inspection in determining whether materials delivered may be disposed at the
Landfarm in accordance with its permits and this Option Agreement. NESI
authorizes USL to retain samples and all data relating thereto, including test
results, for so long as required by federal, state or local law, ordinance,
permit, regulation, directive, code, standard or requirement and additionally
for so long as USL in its sole discretion shall determine.
6.6 ACCEPTANCE OR REJECTION OF MATERIAL.
6.6.1 ACCEPTANCE. USL shall only be obligated to accept waste
materials at the Landfarm which are permissible under the permit requirements of
that Landfarm at the time of delivery. For a period of ten days after the date
of delivery, USL shall have the right to reject (or revoke any prior acceptance)
all or any part of a shipment of material delivered by or on behalf of NESI to
the Landfarm if (i) such material is not in accordance with the terms of this
Option Agreement or (ii) USL concludes that such material exceeds the parameters
of the permits applicable to the Landfarm. USL shall notify NESI of any
rejection in writing and shall state the reason therefor. The expiration of such
ten-day period without a rejection or a revocation of a prior acceptance of
material shall constitute "Final Acceptance" of such material.
-9-
6.6.2 REJECTED MATERIAL. Rejected material shall remain at
NESI's risk and expense and shall not be deemed to be incorporated into the
Landfarm or come under the possession, custody, control or ownership of USL.
Notwithstanding the foregoing, to the extent required by federal, state or local
law, ordinance, permit, regulation, directive, code, standard or requirement, or
by USL's safety and/or security rules, practices or procedures, USL may detain
any rejected materials, including the vehicle and/or containers in which such
rejected materials arrived, and shall notify regulatory or other authorities
wherever necessary or appropriate to do so.
6.6.3 REMOVAL. In the event USL rejects all or any part of a
shipment of material from NESI, after compliance in all material respects with
all regulatory and any other requirements involving detention of such shipment,
upon written request of USL, NESI, unless otherwise directed by a regulatory
agency or other lawful authority, shall promptly remove or cause to be removed
from the Landfarm all of the rejected material at NESI's risk and expense in a
manner consistent with all applicable federal, state and local laws, ordinances,
permits, regulations, directives, codes, standards and requirements. In the
event NESI fails to complete such removal by the fifth business day after the
date of the request by USL, USL, unless otherwise required by law or regulation,
may remove or cause to be removed from the Landfarm any and all of the rejected
material, and may containerize and transport it or cause it to be containerized
and transported to an authorized storage site or returned to NESI at its nearest
location. NESI hereby authorizes USL in such event to contract for such storage
for NESI's account. For its services, USL shall charge and NESI shall pay USL's
cost plus 15%. Any and all material that USL rejects shall remain property and
the responsibility of NESI at NESI's risk and expense.
6.7 THIRD-PARTY DELIVERIES. USL may follow the procedures set forth
in this Article VI with respect to any third-party generator's vessels or
vehicles containing materials that are delivered to any Landfarm at the
direction of NESI or its Affiliates. In addition, USL may establish and enforce
other policies and procedures relating to the independent inspection of any such
third-party generator's vessels or vehicles before the material contained in
such vessels or vehicles shall be accepted for disposal.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇
▇▇▇▇ hereby covenants, represents and warrants to USL as follows:
7.1 AUTHORIZATION AND VALIDITY OF AGREEMENT. NESI has all requisite
power and authority to enter into this Option Agreement and to perform its
obligations hereunder and consummate the transactions contemplated hereby. The
execution, delivery and performance by NESI of this Option Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of NESI. No action or approval of the equity
owners of NESI is necessary to authorize NESI's execution or delivery of, or the
performance of its obligations under, this Option Agreement. This Option
Agreement has been duly executed and delivered by NESI and is a valid and
binding obligation of NESI, enforceable in accordance with its terms.
7.2 NO CONFLICT. The execution and delivery by NESI of this Option
Agreement does not, and exercise by NESI of its rights hereunder and the
consummation of the transactions
-10-
contemplated hereby will not, (a) require any consent, approval, order or
authorization of or other action by any governmental entity on the part of or
with respect to NESI; (b) require on the part of NESI any consent by or approval
of or notice to any other Person; or (c) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to NESI, except in any case
covered by (a), (b) or (c) where failure to obtain such consent or such
violation would not, either individually or in the aggregate, have a material
adverse effect on the transactions contemplated hereby.
7.3 LICENSED CARRIERS. Any carrier with which NESI contracts to
transport NOW and all of NESI's driver personnel shall at all times relevant to
the performance of services under this Option Agreement remain properly licensed
and otherwise fully qualified to perform the services required hereunder.
7.4 CUSTOMER APPROVAL. For each Option Year as to which the Option
has been exercised by NESI, NESI's obligations under this Option Agreement shall
not be affected in any way by the approval, disapproval, recommendation,
instruction, direction or other communication between NESI and its customers,
including any request by any NESI customer as to where its waste should be
delivered. NESI shall remain responsible for payment under this Option Agreement
without reference or regard to NESI's customers.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES OF USL
USL hereby covenants, represents and warrants to NESI as follows:
8.1 AUTHORIZATION AND VALIDITY OF AGREEMENT. USL has all requisite
power and authority to enter into this Option Agreement and to perform its
obligations hereunder and consummate the transactions contemplated hereby. The
execution, delivery and performance by USL of this Option Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of USL. No action or approval of the equity
owners of USL is necessary to authorize USL's execution or delivery of, or the
performance of its obligations under, this Option Agreement. This Option
Agreement has been duly executed and delivered by USL and is a valid and binding
obligation of USL, enforceable in accordance with its terms.
8.2 NO CONFLICT. The execution and delivery by USL of this Option
Agreement does not, and exercise by USL of its rights hereunder and the
consummation of the transactions contemplated hereby will not (a) require any
consent, approval, order or authorization of or other action by any governmental
entity on the part of or with respect to USL or any of its Affiliates; (b)
require on the part of USL or any of its Affiliates any consent by or approval
of or notice to any other Person; or (c) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to USL or any of its
Affiliates, except in any case covered by (a), (b) or (c) where failure to
obtain such consent or such violation would not, either individually or in the
aggregate, have a material adverse effect on the transactions contemplated
hereby.
8.3 SERVICES AND EQUIPMENT. USL possesses the business, professional
and technical expertise to handle, treat and dispose of NOW and possesses the
equipment, plant and
-11-
employee resources required to perform this Option Agreement. USL shall use its
commercially reasonable efforts to turn all barges delivering materials to the
Landfarms in a timely manner consistent with the number of NESI and third-party
generator barges on site at such moment and with its general practice of giving
priority to third-party generators' barges. The equipment shall, at all times
relevant to the performance of services hereunder, be maintained in good and
safe condition and fit for use.
8.4 LICENSES AND PERMITS. As of the Effective Date, USL shall be
duly licensed, permitted and authorized pursuant to all applicable federal,
state and local laws to handle, treat and dispose of NOW, and the Landfarms will
have been issued all licenses, permits and authorizations required by all
applicable federal, state and local laws. At any time during the term of this
Option Agreement, upon NESI's reasonable request, USL shall provide to NESI, at
NESI's expense, a complete copy of the current permits applicable to the
operation of the Landfarms. During the term of this Option Agreement, USL shall
use its best efforts to keep all such licenses, permits and authorizations in
effect and shall promptly notify NESI if any such license, permit or
authorization is to expire and not be renewed or becomes the subject of any
administrative or judicial action seeking revocation or suspension.
8.5 WORKERS' COMPENSATION. USL shall comply in all material respects
with all applicable workers' compensation laws during the term of this Option
Agreement. In the event any work is performed by USL's agent or subcontractor,
USL shall obtain certification from such agent or subcontractor that it too is
in compliance in all material respects with such laws or does not fall within
the scope of such laws.
9. INSURANCE
9.1 INSURANCE COVERAGE. USL and NESI, each at its own expense, shall
procure and maintain in full force and effect during the term of this Option
Agreement the following kinds of insurance with limits of coverage equal to or
exceeding those limits specified therefor:
9.1.1 WORKERS' COMPENSATION; EMPLOYER'S LIABILITY. Workers'
Compensation Insurance shall be obtained in accordance with the provisions of
the applicable Workers' Compensation Law or similar laws of a state having
jurisdiction over any employee. Employer's Liability Insurance shall be obtained
with a minimum limit of liability of $1,000,000. To the extent exposures fall,
or may fall, within federal jurisdictions, including the U.S. ▇▇▇▇▇▇▇▇▇ and
Harbor Workers' Compensation Act, the Defense Bases Act and the Federal
Employers Liability Act, extensions of coverage shall be obtained in accordance
with the requirements of such laws. Should operations occur where maritime
liability law, the ▇▇▇▇▇ Act, or General Admiralty Law apply, applicable
coverages shall be required at limits of not less than $1,000,000.
9.1.2 GENERAL LIABILITY. Comprehensive or Commercial General
Liability Insurance, including Products/Completed Operations and Contractual
Liability, which shall cover the indemnity provisions contained in this Option
Agreement, shall be obtained with a combined single limit of not less than
$1,000,000 per occurrence for bodily injury and property damage.
-12-
9.1.3 AUTOMOBILE LIABILITY. Business or Commercial Automobile
Liability Insurance covering all owned, nonowned, and hired vehicles, shall be
obtained with a combined single limit of $ 1,000,000 per occurrence or accident.
9.1.4 UMBRELLA LIABILITY. Umbrella Liability Insurance over the
foregoing coverages shall be obtained as applicable at limits of $10,000,000 per
occurrence.
9.2 COVERAGE TERMS. All coverages shall be written through insurers
authorized to transact business in the states of operation and reasonably
satisfactory and acceptable to both parties. Each party shall be added as an
additional insured, and subrogation as to the policies of the other party shall
be waived as applicable. All policies will be endorsed to provide not less than
30 days' written notice of cancellation, termination, nonrenewal or material
change in the policy. Each party will furnish the other party certificates of
insurance evidencing compliance with the requirements of Section 9.1.
9.3 SITE FINANCIAL ASSURANCE AND ENVIRONMENTAL IMPAIRMENT LIABILITY.
To the extent available on commercially reasonable terms and subject to the
other terms of this Option Agreement, USL shall (i) maintain policies of
environmental impairment liability insurance covering the ownership and
operation of the Landfarms in substantially such amounts and on such terms as
shall be in place on the Effective Date and (ii) comply with all applicable
federal or state governmental financial assurance requirements imposed in
connection with its operation of the Landfarms.
10. INDEMNIFICATION
10.1 INDEMNIFICATION BY USL. USL shall defend, indemnify and hold
harmless NESI and its Affiliates and their employees, officers, owners,
directors and agents, from and against any and all liabilities, penalties,
fines, forfeitures, demands, claims, causes of action, suits, judgments and
costs and expenses incidental thereto, including reasonable attorneys' fees,
which any or all of them may hereafter suffer, incur, be responsible for or pay
out as a result of personal injuries, property damage, or contamination of or
adverse effects on the environment, to the extent directly or indirectly caused
by, or arising from or in connection with (i) the negligence, gross negligence
or willful act or omission or willful misconduct of USL or any of its employees,
officers, owners, directors, agents or subcontractors in the performance of this
Option Agreement; (ii) the violation of any environmental rule, law or
regulation by USL or any of its employees, officers, owners, directors, agents
or subcontractors; (iii) operations of the Landfarms, including, without
limitation, the receipt and disposal of waste delivered to the Landfarms by NESI
and others; or (iv) the breach of, misrepresentation in, untruth in or
inaccuracy in any representation, warranty or covenant of USL set forth in this
Option Agreement.
10.2 INDEMNIFICATION BY NESI. NESI shall defend, indemnify and hold
harmless USL and its Affiliates and their employees, officers, owners,
directors, agents and subcontractors, from and against any and all liabilities,
penalties, fines, forfeitures, demands, claims, causes of action, suits,
judgments and costs and expenses incidental thereto, including reasonable
attorneys' fees, which any or all of them may hereafter suffer, incur, be
responsible for or pay out with respect
-13-
to claims by third parties for personal injuries, property damage or other loss
to the extent directly or indirectly caused by, or arising from or in connection
with (i) the negligence, gross negligence or willful act or omission of NESI,
any of its employees, officers, owners, directors, agents or subcontractors or
any third-party generator acting at NESI's direction in the performance of this
Option Agreement, (ii) the violation of any environmental rule, law or
regulation by NESI, any of its employees, officers, owners, directors, agents or
subcontractors or any third-party generator acting at NESI's direction; (iii)
material delivered to any of the Landfarms by NESI or any third-party generator
acting at NESI's direction which is not in accordance with the terms of this
Option Agreement or otherwise not permitted to be disposed at such Landfarm; or
(iv) the breach of, misrepresentation in, untruth in or inaccuracy in any
representation, warranty or covenant of NESI set forth in this Option Agreement.
10.3 INDEMNIFICATION PROCEDURES.
10.3.1 Promptly after receipt by an indemnified party under
this Article X of notice of the commencement of any action or proceeding
evidenced by service of process or other legal pleading, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
hereunder, notify in writing the indemnifying party of the commencement thereof,
but the omission so to notify the indemnifying party (i) will not relieve it
from any liability that it may have to any indemnified party under this Article
X unless and to the extent that the indemnifying party has been prejudiced in
any material respect by such omission and (ii) will not relieve the indemnifying
party from any liability that it may have to any indemnified party other than
under this Article X. If any such action or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under this Article X for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless the named parties to such action or proceeding
(including any impleaded parties) shall include both an indemnifying party and
an indemnified party and the indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are different from or additional to those available to the
indemnifying party (in which case, if the indemnified party notifies the
indemnifying party that it wishes to employ separate counsel at the expense of
the indemnifying party (who shall promptly pay all such expenses as incurred),
the indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of such indemnified party).
10.3.2 If an indemnifying party, within a reasonable period of
time after notice by the indemnified party of the commencement of any action or
proceeding with respect to which the indemnified party is to make a claim
hereunder, fails to assume the defense thereof, the indemnified party shall have
the right (upon further notice to the indemnifying party) to undertake the
defense, compromise or settlement of such action or proceeding for the account
of the
-14-
indemnifying party, subject to the right of the indemnifying party to assume the
defense of such action or proceeding at any time prior to settlement, compromise
or final determination thereof. The cost and expense of any such defense and any
judgment in any such action or proceeding shall be borne by the indemnifying
party, and, if paid by the indemnified party, shall be reimbursed by the
indemnifying party within thirty days after receipt of invoice therefor.
10.3.3 Except as otherwise provided in Section 10.3.2, an
indemnifying party shall not be liable for any settlement of any litigation or
proceeding effected without its written consent. An indemnifying party shall
not, without the indemnified party's written consent, settle or compromise any
action or proceeding or consent to entry of any judgment that would impose an
injunction or other equitable relief upon the indemnified party or that does not
include as an unconditional term thereof the release by the claimant or the
plaintiff of such indemnified party from all liability in respect of such action
or proceeding.
11. DISPUTE RESOLUTION
11.1 NEGOTIATION OF DISPUTES. In the event of any dispute or
disagreement arising out of or relating to the implementation and performance of
this Option Agreement, the parties agree to attempt to resolve such dispute in
good faith. Should a resolution of such dispute not be obtained within 15 days
after the origination of the dispute, either party may in accordance with the
provisions of this Article XI file suit. Any suit filed by any party that
relates to this Option Agreement must be filed in Texas state court in ▇▇▇▇▇▇
County, Texas.
11.2 CONTINUATION OF PERFORMANCE. In the event of a dispute arising
under this Option Agreement, the parties shall continue performance of their
respective obligations hereunder.
12. SUSPENSION OF PERFORMANCE
12.1 SUSPENSION OF PERFORMANCE BY USL. USL shall have the right to
suspend operations under this Option Agreement at the ▇▇▇▇▇▇▇ Island Landfarm
for any reason. Upon such suspension, USL shall give NESI written notice of the
basis for, and an estimate of, the length of the suspension.
12.1.1 If USL notifies NESI that it will temporarily suspend
operations at the ▇▇▇▇▇▇▇ Island Landfarm due to litigation, court order or
directive of any governmental body having jurisdiction over the operation of the
Landfarm, or substantial changes to laws or regulations, then NESI shall
continue to make all Payments in Full and on Time as this Option Agreement
requires; provided, however, that USL shall make available the ▇▇▇▇▇ and/or
Mermentau Landfarms to accept, in a timely fashion, delivery of that portion of
the Annual Volume that NESI would otherwise deliver to the ▇▇▇▇▇▇▇ Island
Landfarm under Section 3.1.l.a. If USL fails to make available either the Bourg
Landfarm or the Mermentau Landfarm to accept delivery, in a timely fashion, of
the NOW that NESI desires to deliver, up to the Annual Volume (prorated for the
period involved), then NESI shall be excused from payments due each month such
failure continues. Upon the resumption of operations at the ▇▇▇▇▇▇▇ Island
Landfarm, NESI may exercise its option to deliver NOW in accordance with Section
3.1.
-15-
12.1.2 If USL notifies NESI that it will temporarily suspend
operations at the ▇▇▇▇▇▇▇ Island Landfarm due to litigation, court order or
directive of any governmental body having jurisdiction over the operation of the
Landfarm, or substantial changes to laws or regulations, then NESI shall
continue to make all Payments in Full and on Time as this Option Agreement
requires; provided, however, that USL shall make available the ▇▇▇▇▇ and/or
Mermentau Landfarms to accept, in a timely fashion, delivery of that portion of
the Annual Volume that NESI would otherwise deliver to the ▇▇▇▇▇▇▇ Island
Landfarm under Section 3.1.l.a. If USL fails to make available either the Bourg
Landfarm or the Mermentau Landfarm to accept delivery, in a timely fashion, of
the NOW that NESI desires to deliver, up to the Annual Volume (prorated for the
period involved), then NESI shall be excused from payments due each month such
failure continues. Upon the resumption of operations at the ▇▇▇▇▇▇▇ Island
Landfarm, NESI may exercise its option to deliver NOW in accordance with Section
3.1.
12.1.3 If USL notifies NESI that it will temporarily suspend
operations at the ▇▇▇▇▇▇▇ Island Landfarm voluntarily for any reason other than
under Section 12.1.1 or 12.1.2 above, NESI is excused from payments due each
month that operations are suspended. Upon the resumption of operations at the
▇▇▇▇▇▇▇ Island Landfarm, NESI shall resume payments and may exercise its option
to deliver NOW in accordance with Section 3.1.
12.1.4 If operations are temporarily suspended at the ▇▇▇▇▇,
▇▇▇▇▇▇▇ Island and Mermentau Landfarms at once or in reasonably close
succession, then NESI is excused from payments due each month that operations
are suspended. Upon the resumption of operations at any Landfarm, and provided
USL makes any Landfarrn available to accept delivery in a timely fashion, of the
NOW that NESI desires to deliver, up to the Annual Volume (prorated for the
period involved), then NESI shall resume payments and may exercise its option to
deliver NOW in accordance with Section 3.1.
12.1.5 Whenever, in accordance with the foregoing provisions
of this Section 12.1, NESI is excused from making payments of a portion of the
Option Payment for any month or months, such excuse shall be a permanent excuse,
and the total Option Payment for the Option Year or Option Years in which such
excuse occurs shall be reduced accordingly.
12.2 SUSPENSION OF PERFORMANCE BY NESI. NESI has no right to suspend
its performance except as specifically provided elsewhere in this Option
Agreement and any other suspension or attempt to suspend its obligations shall
constitute breach of this Option Agreement. Disapproval, instruction or
communication by a customer of NESI, including any request by any NESI customer
as to where its waste should be delivered, in a manner contrary to the terms of
this Option Agreement shall not constitute force majeure nor provide a basis for
suspension of performance.
13. MISCELLANEOUS
13.1 STATUS OF THE PARTIES. Each party hereto is and shall perform
this Option Agreement as an independent contractor, and as such, shall have and
maintain complete control over
-16-
all of its employees, agents, and operations. Except as expressly otherwise
provided in this Option Agreement, neither party nor anyone employed by it shall
be, represent, act, purport to act or be deemed to be the agent, representative,
employee or servant of the other party.
13.2 NO SET-OFF RIGHTS. The parties hereby agree that neither party
shall have any right to set-off or apply against any sums due under this Option
Agreement any sums due or amounts otherwise owing pursuant to any other
provision of this Option Agreement or any other agreement or arrangement between
the parties.
13.3 SUBROGATION; ASSIGNMENT OF RIGHTS. In the event NESI delivers
and USL accepts a delivery of materials (the "Nonconforming Materials")
containing hazardous or dangerous substances in violation of this Option
Agreement and in violation of NESI's agreement with the third-party generator
producing such materials, NESI agrees that, upon the request of USL, USL shall
become fully subrogated to the rights of NESI against such generator related to
the Nonconforming Materials, and NESI shall (i) assign or take such further
action as is necessary or desirable to transfer to USL any and all rights of
action of NESI against such generator relating to such Nonconforming Materials
arising at law under NESI's agreement with such generator or in equity and (ii)
use its good faith best efforts to assist in the prosecution of any claim
brought by USL against such third party generator relating to the Nonconforming
Materials.
13.4 BINDING EFFECT; ASSIGNMENT. This Option Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. USL and NESI may assign their rights, obligations and
duties under this Option Agreement with the written consent of the other parties
to the Agreement, which consent shall not be unreasonably withheld; provided
that the assigning party shall remain primarily liable for all obligations and
duties arising hereunder. Without limiting the generality of the foregoing, if
USL sells the Landfarms and/or related business, the purchaser shall assume
USL's obligations under this Option Agreement, and NESI shall retain its
obligations under this Option Agreement.
13.5 NOTICES.
13.5.1 GENERAL. Except under Section 3.1.1, notices and other
communications provided for in this Option Agreement shall be in writing and
shall be deemed to have been validly given (a) three calendar days after deposit
in the United States mails, registered or certified mail with proper postage
prepaid and return receipt requested; (b) upon transmission thereof and receipt
of the appropriate confirmation if sent via telecopier or telefax; (c) the
business day after the same shall have been deposited with a reputable overnight
courier, shipping prepaid; and (d) if delivered in person, upon delivery, in
each case addressed as follows:
If to NESI or Newpark: With a copy to:
c/o Newpark Resources, Inc. ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, President Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
-17-
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to USL: With a copy to:
U.S. Liquids, Inc. ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 910 Louisiana
Attention: W. ▇▇▇▇ ▇▇▇, President ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as any party shall specify by written notice so given.
13.5.2 OTHER NOTICES. Notices provided for in Section 3.1.1
shall be made in writing by telefax or mailed to USL as follows:
U.S. Liquids, Inc.
Division Manager
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
13.6 OPPORTUNITY TO CURE. In the event that NESI (i) fails to pay
USL any amount required under this Option Agreement on or before the date such
payment is due and such payment is not excused by Section 12.1 and/or (ii)
otherwise fails to perform under this Option Agreement, USL shall give notice to
NESI of its failure to perform in accordance with Section 13.5. The notice shall
include a description of the manner in which NESI failed to perform under this
Option Agreement and shall include the date on which performance was due. NESI
shall have fifteen (15) calendar days from the date notice is deemed validly
given to correct or cure its failure to perform under this Option Agreement. If
NESI fails to do so, then such failure shall constitute a breach of this Option
Agreement. If NESI receives from USL notice that NESI has failed to pay USL any
amount required, due and not otherwise excused under this Option Agreement and
NESI fails to correct or cure such failure within 15 days from the date such
notice is given, then such failure shall be deemed failure to make Payment in
Full and on Time and shall constitute a breach of this Option Agreement. Failure
by USL to act in accordance with this Section shall not itself constitute a
breach of this Option Agreement nor shall such failure cause USL to waive or
relinquish any right or option provided by any Section in this Option Agreement;
provided, however, that NESI shall not be deemed to have breached this Option
Agreement unless and until notice of such alleged breach shall have been given
in accordance with this section, and NESI shall have failed to cure or correct
its failure to perform as specified in such notice.
13.7 NON-WAIVER. The failure of any party to enforce its rights
under any provision of this Option Agreement shall not be construed to be a
waiver of such provision. No waiver of any breach of this Option Agreement shall
be held to be a waiver of any other breach.
-18-
13.8 ENTIRE AGREEMENT; AMENDMENT. This Option Agreement, the Payment
Agreement and the Other Agreements referred to in the Payment Agreement
constitute the entire agreement between the parties concerning the subject
matter hereof and supersede any and all other communications, representations,
proposals, understandings or agreements, either written or oral, between the
parties hereto with respect to such subject matter. This Option Agreement may
not be modified or amended, in whole or in part, except by a writing signed by
both parties hereto.
13.9 SEVERABILITY. If any provision of this Option Agreement is
declared invalid or unenforceable, then such portion shall be deemed to be
severable from this Option Agreement and shall not affect the remainder hereof.
13.10 HEADINGS. The Article and Section headings contained herein
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Option Agreement.
13.11 COUNTERPARTS. This Option Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall constitute one instrument.
13.12 GOVERNING LAW. This Option Agreement SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
-19-
ON THIS DATE, the Parties have executed multiple originals of this Option
Agreement.
NEWPARK ENVIRONMENTAL SERVICES, INC.
Dated: December 31, 1998 By:
Name:
Title:
NEWPARK RESOURCES, INC.
Dated: December 31, 1998 By:
Name:
Title:
U.S. LIQUIDS, INC.
Dated: December 31, 1998 By:
Name:
Title:
-20-
