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EXHIBIT 10.18
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.
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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 Xxx Xxxxx, XX (DNR Permit #OWD 89-1) (the "Elm Grove
Landfarm"); Bourg, LA (XXX Xxxxxx #00-00 XXX) (xxx "Xxxxx Xxxxxxxx"); Xxxxxxx
Island, LA (DNR Permit #91-10 OWD) (the "Xxxxxxx 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.
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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
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3.1. Failure 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.
x. XXXX may, at its option, deliver to USL for Disposal at the
Xxxxxxx 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 Xxxxxxx 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.
x. XXXX 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
x. XXXX 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.
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.
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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
xxxx 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.
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
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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 Xxxxxxx 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 Xxxxxxx 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.
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.
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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,
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.
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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 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
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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.
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
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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 XXXX
XXXX 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 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
11
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 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
12
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.
Xxxxxxxxx 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 Xxxxx 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.
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
13
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 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.
14
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 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.
15
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 Xxxxxx
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 Xxxxxxx 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 Xxxxxxx 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 Xxxxx 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 Xxxxxxx 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 Xxxxxxx Island
Landfarm, NESI may exercise its option to deliver NOW in accordance with Section
3.1.
12.1.2 If USL notifies NESI that it will temporarily
suspend operations at the Xxxxxxx 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 Xxxxx 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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
16
resumption of operations at the Xxxxxxx 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
Xxxxx, Xxxxxxx 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 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
17
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. Xxxxx, Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxxxx, Xxxxx 0000 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx, President Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
If to USL: With a copy to:
U.S. Liquids, Inc. Xxxxx & Xxxxx, L.L.P.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx Xxx Xxxxx Xxxxx
Xxxxxxx, XX 00000 910 Louisiana
Attention: W. Xxxx Xxx, President Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000 Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
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
X.X. Xxx 0000
00
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
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.
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:
